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Item Q3 Q.3 County �� .�� y,4 ' �, "tr, BOARD OF COUNTY COMMISSIONERS Mayor Michelle Coldiron,District 2 �1 nff `ll Mayor Pro Tem David Rice,District 4 -Ile Florida.Keys Craig Cates,District 1 Eddie Martinez,District 3 w Mike Forster,District 5 County Commission Meeting January 20, 2021 Agenda Item Number: Q.3 Agenda Item Summary #7676 BULK ITEM: No DEPARTMENT: Planning/Environmental Resources TIME APPROXIMATE: STAFF CONTACT: Emily Schemper(305) 289-2500 1:30 PM AGENDA ITEM WORDING: A public hearing to consider approval of a resolution transmitting an ordinance by Monroe County Board of County Commissioners adopting amendments to the Monroe County 2030 Comprehensive Plan amending the Future Land Use Element and the Housing Element to establish a new building permit allocation category to accept and award 300 workforce housing early evacuation unit building permit allocations pursuant to the Workforce-Affordable Housing Initiative (Workforce Initiative) authorized by the Florida Administration Commission and the Florida Department Economic Opportunity by amending as well as clarifying Policies 101.2.2, 101.2.4, 101.3.1, 101.3.2, 101.3.3, 101.3.4, 101.3.10, 101.3.11, 601.1, 601.1.1, 601.1.2, 601.1.8, 601.1.11, 601.5.1 and creating new Policy 101.3.12 to establish the specific Workforce Initiative requirements; 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 amendment to and incorporation in the Monroe County Comprehensive Plan; providing for an effective date. (File 2020-067). ITEM BACKGROUND: On May 2, 2018, Governor Rick Scott issued a press release outlining an initiative to the Department of Economic Opportunity ("DEO") for a Keys Workforce Housing Initiative. The proposed initiative would allow 1,300 additional Rate of Growth Ordinance ("ROGO") allocations throughout the Florida Keys ("ROGOs" or `Building Permit Allocation System(s)") for rental workforce housing, with a condition that the rental occupants evacuate in the early phase (48-hour window) of a hurricane evacuation. Any development receiving the units would be required to sign a rental management agreement indicating they would be required to assure and ensure the evacuation of all occupants of the development. Under the initiative, each jurisdiction would be eligible to receive up to 300 of these units. The press release specifically stated, "To meet the increased demand for workforce housing, the innovative Keys Workforce Housing Initiative will require new construction that participates to commit to evacuating renters in the 48-hour window of evacuation." On June 13, 2018, the Florida Administration Commission approved the Workforce Housing Initiative. It was noted that Florida Keys' local governments that choose to participate in the initiative are to work with DEO to amend their respective comprehensive plans to allow for Packet Pg. 3287 Q.3 additional building permits for rental workforce housing with the condition of early evacuation. In support of the Housing Initiative at the June 13, 2018, Cabinet meeting, DEO staff made a presentation stating that the Phase I evacuation (under the existing staged evacuation plan) can be accomplished in 17.5 hours, leaving additional capacity of 6.5 hours in Phase I. DEO stated, "The proposed Keys' Workforce Housing Initiative can provide a path forward by allowing local government to grant new building permit allocations for workforce rental properties that agree to evacuate 48 hours in advance of hurricane landfall. DEO proposes to allow up 1,300 new building permit allocations for deed-restricted workforce rental housing throughout Monroe County with an initial allocation of no more than 300 per community." As directed by the BOCC on February 19, 2020 and July 15, 2020, the Monroe County Planning and Environmental Resources Department is proposing an amendment to the 2030 Comprehensive Plan amending the Future Land Use Element and the Housing Element to establish a new building permit allocation category to accept and award 300 workforce housing early evacuation unit building permit allocations pursuant to the Workforce-Affordable Housing Initiative (Workforce Initiative) authorized by the Florida Administration Commission and the Florida Department Economic Opportunity by amending as well as clarifying Policies 101.2.2, 101.2.4, 101.3.1, 101.3.2, 101.3.3, 101.3.4, 101.3.10, 101.3.11, 601.1, 601.1.1, 601.1.2, 601.1.8, 601.1.11, 601.5.1 and creating new Policy 101.3.12 to establish the specific Workforce Initiative requirements. On the February 19, 2020, BOCC meeting, the BOCC discussed whether to direct staff to process a Comprehensive Plan and Land Development Code amendment to: 1) Move a portion of the 378 remaining Market Rate - Rate of Growth Ordinance (ROGO) units through 2026 to the Affordable Housing allocation pool and/or 2) Accept the 300 Workforce Housing units offered by the Department of Economic Opportunity (DEO) required to evacuate in Phase 1 of the hurricane evacuation model. The BOCC did not decide on the potential shifting of market rate allocations to the affordable housing pool (BOCC wanted staff to develop a menu of options). Additionally, the BOCC directed staff to start the process to accept the 300 workforce housing units. On July 15, 2020, during a discussion item on potentially shifting market rate allocations to the affordable housing pool (Agenda Item I5), the BOCC provided further direction to staff on accepting the 300 workforce housing early evacuation unit building permit allocations. The BOCC directed: Accept the .300 }ti°or~Icf trRc°e housing earl ' evuc°ttution ulat hrtilditrg per n it allegations to he used in exchange ftr~ existing gl1brdahle allocutions ut 177111tifuin ilY' developments (ftrR developers that agree to the earl ' evuc°ttution restriction) and the gl1br dahle housing allocutions returned to the Corttr j (returned in the exchange) he ,set aside and hutrked fctrR takings cases (hurry them Within an a dmilastr alive relief'Pool). "fhe r posed Con rehensive Plan amendments include the following kev criteria: • Accept 300 workforce (affordable) housing early evacuation unit allocations. • A 1 for 1 exchange of existing rental affordable allocations/exemptions for the workforce (affordable) housing early evacuation unit allocations. Packet Pg. 3288 Q.3 • Existing rental affordable allocations returned to the County in exchange for workforce (affordable)housing early evacuation unit allocations to be: o held(banked)by the County; o used for future takings cases; and o returned to original affordable housing income category (very low/low/median/moderate). • Received workforce (affordable) housing early evacuation unit allocations must be utilized based on the original approved affordable housing income category or a lesser income category. • Requires a development agreement and ROGO reservation resolution to obtain workforce (affordable) housing early evacuation unit allocations. • Workforce (affordable) housing early evacuation unit must be deed restricted for 99 years: o Units originally constructed with a 99 year deed restriction can maintain their existing 99 year affordability requirement. o Units originally deed restricted for less than 99 years originally, shall add remaining years to reach 99 year minimum. • Workforce housing early evacuation units restricted to: o rental occupancy; o limited to those who derive at least 70% of their income as members of the workforce in Monroe County and who meet the affordable housing income categories of the Monroe County Land Development Code; and o units must be used based on the original approved affordable housing income category or a lesser income category. • Workforce (affordable) housing unit occupants required to evacuate in Phase 1 of the 48-hr evacuation. • Workforce (affordable) housing unit require onsite property management with property managers trained in evacuation procedures and required to manage the evacuation of tenants in Phase I of an evacuation. • Property management entity required to annually verify the employment and income eligibility of tenants; report the total units on the site, the occupancy rates of units, and tenant compliance with the requirement to evacuate the units in Phase I of an evacuation, including the number of occupants that are exempt from the evacuation requirements. First responders may be exempted. • Workforce (affordable) housing units must be located within Tier III, not be located in the V- Zone or within a Coastal Barrier Resource System (CBRS), located on a property which has all infrastructure available, and meet ADA Compliance requirements. o Use of banked existing affordable allocations/exemptions also requires units to be located within Tier III, not be located in the V-Zone or within a Coastal Barrier Resource System (CBRS) (these are existing AFH requirements). Packet Pg. 3289 Q.3 Illustrative example of the proposed amendments-hypothetical example onl�d°t Quarry 111 57 steed restricted I_' . AFBI eniployee r ire" housing unit (21 low income,and 31, moderate incot e � s +r r w `,t Q PROPOSED 33 UNIT RESIDE Tl L BUILDING - (48 PARKINGSPACES) m r ,tvorkfoI e units e n 1.4-1 wor fo rce units remaining ROAD CLEAR SIGHT TRIANGLE 7 att rd blo, units returned to the County e u 2 acted to mi relief t�t s low incoe � �* 31 added to adai,in t°ehef pool as maderate tneo to tit e '" -r Ir r PROPOSED 24 UNIT RESIDENTIAL U1LOlNG' — r� �,I<l� I� � t31 PARKING SPACES) 4 r, 9d � . tab L,il rr�}!3I t I tr tl,r rlr afiilrrl�'r',an teal vvrgr I rce tit k5r�P.0��I�h�t w=�l`��lt f ar 1 -�11 ; tl�r4 �o ''lle f xj` jll M .J'grM.o-d L4n4h;- s4ppi'i1iCar^It hawuit ur.Vbrnit a9 Y`f'�,d.�0 reservation r'eq,te.,t tc B'OC', for r;r vrrjr''.for.,e 1iousvig earfy feva d"ration ,init. a 31 s's a aril' T apply r 't it a ef;rVlor,';gH vt ag ee 1ert tot the n,,� ijer of,alioc at ns requesting tra if,lf�t',ange In tt°t: P-;:a rfrrFe scenan , 57 all'ocatltrr c A r atirt be r gUe4 ted Des e+cq 'Pent c s e'I"i'"re,rit no Ilnc me categ 1es Caf fl,e ,ail« ahons, r;Jrtr'"I''i la ICY orate an, area designalled as T,er It;, not be on the v-t'_I:ne or within a Gor"§;stal�,. Bamer Resouroe .ryster't (GBRS) 'Waled cr a vpr q,rxm'y '.rvhich 'w all mNis0''1.9s".;'ure anmd mt:.d, Af A C 1 t!t,r ace.reqi reds er ts, PxLiv11 (e v i_r Ik t'+', rf r4it�p need Cua I.rt Ilit � efl eRrCt'1 n! to ttlajor i�'Jr, ifi 41, �a� � Li 3 1 i fear an proposed+ tier„ a souated Ivoth the, force t oi.i;sing eafl l t5«j ouat,on limn If"fo+r ex rnf)ltp an ons lie offlue for Ore°,S,ertad rtrInafj,l°l ,r.p cant to, ?update deed e.rnu-tlt_trs to require that t1.-using earsr e a'I,Iet'on. l rails. to be r�stmted to rental o r`4aparir:'',t for those who+d'e,rve,al ieasf I +tCs�t of the-r IAVos,.'lle As 11rq°.b,--rs of the Ir°krtdit+'I4`rr,*III Monroe'"t'!Iunty and%seho rl t et tht-i afforilable, housing insigne, cAte fries l Hhe Mbnrop.County IL no,Dv el +.lYlenr Code, 8, ,'tv.l„'tJ[cant to update feed re„stnrt.i.ns o a`legIL;!re tu4+°I.jC.ant:-r to evacuate Pn Phase `t of t'he 48-Ir'i" efa',,:,uatlt'1..ri of a aend rig in, or h3JrrRcane Aj,p,6ioar't to up dale Ije,.t f*strr,6or,s to re,a"t'"dire rarlsstrj r,,I.-tefdr nnanal pent atxtl'1 piri -+en0 nna iag , tr"t"times jr, l d ,+,,ja it n oro el ar�,a ari"t rlr;ttUhrf-d tO 1181ncage tfq+.. eVilcu. tir of tenants rri Phase �of an,?vr9r.ua ion in w.uar,--ii.e szenario appkc,,ant Pe'1at' P"dw {J to s'I t'in-'it for buildili"i pI`:nrnit,s for any .roposF rt+,ha gps rasr,sodated an"Ib ri4+p u1r`."r#`kfo o],,oar,lr"IS ea-sy eva:,,,uet'{ra-, unit alrto:'at ons 'for erta'1"p'Jtr' ar(tnsile offic'el,or property I"t'tara rl. Packet Pg. 3290 Q.3 Affordable Workforce flanked alloy Lions ROGO Year Market Rate (r enwned ra"a� rafiaa s Faftrr,ek-r rangin )�11U5111 t�i7ll�t€'f to rtsrar"v;r.unr'61) [59 moderate July 13,2021—July 12,2022 64 Income 300"* ?. remaining] Hj pathetical Example On y. Quarry III -` BALANCE 64 [59] 24 Current Allocation Balance: There are currently 59 moderate affordable ROGO allocations available. There are 361 remaining market rate allocations (including 23 markets rate allocations for Big Pine Key). The Planning Commission approved 16 market rate allocations for the Upper and Lower Keys ROGO subarea and 4 AFH allocations in the Quarter 1 of Year 29 ROGO awards at the PC meeting on November 18, 2020. PREVIOUS RELEVANT BOCC ACTION: On May 2, 2018, Governor Rick Scott issued a press release outlining an initiative to the Florida Department of Economic Opportunity ("DEO") for a Keys Workforce Housing Initiative, allowing 1,300 additional Rate of Growth Ordinance (ROGO) allocations throughout the Florida Keys (ROGOs or Building Permit Allocation Systems). Commissioner Rice calls a special meeting for May 10, 2018, at 11 A.M. in Marathon to provide the Commission and the public an opportunity to discuss the proposal prior to the Cabinet meeting (May 15, 2018). At the May 10, 2018, Special BOCC Meeting, the BOCC directed County staff to discuss concerns identified with DEO and provide an update to the BOCC at the next meeting. On May 16, 2018, the County Attorney provided the BOCC a report on the Governor's proposal for 1,300 additional ROGO allocations following her meeting with DEO and state level staff. He advised the Board that they have a cabinet meeting scheduled for June 13, 2018 to discuss the allocations further. On May 16, 2018, the BOCC directed County staff to present the Board's questions and concerns regarding the Workforce Initiative at the meeting with the Cabinet on June 13, 2018. On June 6, 2018, the County sends a letter to DEO providing County comments and questions on the Keys Workforce Housing Initiative. On June 13, 2018, the Florida Administration Commission approved the Workforce Housing Initiative. Florida Keys'local governments that choose to participate in the initiative will work with DEO to amend their respective comprehensive plans to allow for additional building permits for rental workforce housing with the condition of early evacuation. On August 15, 2018, the BOCC directed County staff to prepare a discussion and direction item Packet Pg. 3291 Q.3 regarding the Keys Workforce Housing Initiative for the September 19, 2018 regular BOCC meeting. On September 19, 2018, the BOCC directed County staff to draft proposed policy alternatives to the State's initiative that address several concerns raised related to the enforceability of the evacuation provisions. Additionally, the BOCC asked the County Attorney to research whether the state's Florida Keys Workforce Housing Initiative, which, if implemented, would create a "precedent" that would require the state to award as many as 10,000 additional units in the future versus the liability of not accepting the units under the State's initiative. During the discussion, the County Attorney stated accepting the units means fewer takings cases (less potential for cases). On January 30, 2019, the BOCC considered options to accept the 300 units. Staff drafted three (3) options for consideration by the BOCC: 1. Do not accept the 300 early evacuation affordable ROGOs and extend ROGO allocations through 2026; 2. Accept the 300 early evacuation affordable ROGOs and extend ROGO allocations until 2026; and 3. Accept the 300 early evacuation affordable ROGOs and do not extend ROGO beyond 2023. On January 30, 2019, the BOCC discussed and provided direction regarding existing and potential actions, policies and programs to address exhaustion of ROGO allocations and build out of the Florida Keys as of 2023 with a substantial number of platted lots remaining. The discussion involved existing and potential actions, policies and programs; as well as ideas for policy changes to alleviate potential takings liability, if and when the DEO is no longer able to award ROGO allocations to the County. On January 22, 2020, the BOCC adopted Ordinance No. 005-2020 to extend the remaining market rate ROGOs out for an additional three (3)years from 2023 to 2026. On January 22, 2020, the BOCC directed staff to prepare an agenda item to discuss and provide direction on whether to direct staff to process Comprehensive Plan and Land Development Code amendments to: 1) Move a portion of market-rate Rate Of Growth Ordinance (ROGO) units to the affordable housing allocation pool and/or 2) accept the 300 Workforce Housing units offered by the Department of Economic Opportunity (DEO) required to evacuate in Phase 1 of the Hurricane Evacuation model. On February 19, 2020, the BOCC discussed whether to direct staff to process a Comprehensive Plan and Land Development Code amendment to: 1) Move a portion of the 378 remaining Market Rate - Rate of Growth Ordinance (ROGO) units through 2026 to the Affordable Housing allocation pool and/or 2) accept the 300 Workforce Housing units offered by the Department of Economic Opportunity (DEO) required to evacuate in Phase 1 of the hurricane evacuation model. The BOCC did not decide on the potential shifting of market rate allocations to the affordable housing pool but did direct staff to start the process to accept the 300 workforce housing units. On April 15, 2020, the BOCC adopted Resolution No. 100-2020 providing for a temporary suspension of the expiration of ROGO and NROGO allocation awards, issuance of allocation award letters, deferring administrative relief application deadlines, and deferring the processing of new and existing ROGO and NROGO applications and Planning Commission review due to the impacts of COVID-19 (the novel coronavirus). Packet Pg. 3292 Q.3 On July 15, 2020, during a discussion item on potentially shifting market rate allocations to the affordable housing pool (Agenda Item I5), the BOCC provided further direction to staff on accepting the 300 workforce housing early evacuation unit building permit allocations. The BOCC directed: Accept the 300 workforce housing early evacuation unit building permit allocations to be used in exchange for existing affordable allocations at multifamily developments (for developers that agree to the early evacuation restriction) and the affordable housing allocations returned to the County (returned in the exchange) be set aside and banked for takings cases (bank them within an administrative relief pooh CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATION: The Planning Commission included in their motion to recommend approval, that the Planning Commission does not recommend approval of the general acceptance of the 300 workforce housing early evacuation unit building permit allocations, without the criteria and provisions included in the staff report. Based on the PC recommendation and the BOCC direction to staff on February 19, 2020 to start the process to accept the 300 workforce housing units and on July 15, 2020, to accept the 300 workforce housing early evacuation unit building permit allocations to be used in exchange for existing affordable allocations for developers that agree to the early evacuation restriction and that the affordable housing allocations returned to the County (returned in the exchange)be set aside and banked for takings cases, staff recommends approval. Staff does not recommend approval of the general acceptance of the 300 workforce housing early evacuation unit building permit allocations, without the criteria and provisions explained above and included in proposed language as identified in Section III(proposed comprehensive plan text amendments) of the staff report. DOCUMENTATION: 2020-067_Transmittal_Resolution_workforce early evac 2020-067_ORDINANCE_Comp Plan_workforce early evac 2020-067_Staff Repot Comp Plan_300 workforce early evac BOCC Ex. 1_Gov.Scott Press Release Ex. 2 DEO_DRAFT_Language_WORKFORCE-AFFORDABLE_Moco Ex. 3 Takings Claims Bill Whitepaper January 2020 Ex. 4 ALJ's recommended order for 300 ROGO_recommend in-compliance Ex. 5 Islamorada ORD 19-03 19-OIACSC Ex. 6 Marathon ORD 2018-09 18-OIACSC Ex. 7 Key West ORD 19-06_18-04ACSC Ex. 8 Summary of County Actions on the 300 Workforce early evac units_7.30.20 Ex. 9 DEO Final Order upholding city amendments FINANCIAL IMPACT: Packet Pg. 3293 Q.3 Effective Date: Expiration Date: Total Dollar Value of Contract: Total Cost to County: Current Year Portion: Budgeted: Source of Funds: CPI: Indirect Costs: Estimated Ongoing Costs Not Included in above dollar amounts: Revenue Producing: If yes, amount: Grant: County Match: Insurance Required: n/a Additional Details: REVIEWED BY: Emily Schemper Completed 12/29/2020 2:19 PM Assistant County Administrator Christine Hurley Completed 01/04/2021 3:14 PM Peter Morris Completed 01/05/2021 12:24 PM Derek Howard Skipped 01/04/2021 8:40 PM Purchasing Completed 01/05/2021 12:44 PM Budget and Finance Completed 01/05/2021 12:45 PM Maria Slavik Completed 01/05/2021 12:52 PM Liz Yongue Completed 01/05/2021 12:54 PM Board of County Commissioners Pending 01/20/2021 9:00 AM Packet Pg. 3294 Q.3.a �l 2 �1y� 6 7 MONROE COUNTY, FLORIDA 8 BOARD OF COUNTY COMMISSIONERS 9 RESOLUTION NO. -2021 10 11 A RESOLUTION BY THE MONROE COUNTY BOARD OF COUNTY 12 COMMISSIONERS TRANSMITTING TO THE STATE LAND PLANNING 13 AGENCY AN ORDINANCE BY MONROE COUNTY BOARD OF 14 COUNTY COMMISSIONERS ADOPTING AMENDMENTS TO THE 15 MONROE COUNTY 2030 COMPREHENSIVE PLAN AMENDING THE 16 FUTURE LAND USE ELEMENT AND THE HOUSING ELEMENT TO 2 17 ESTABLISH A NEW BUILDING PERMIT ALLOCATION CATEGORY 18 TO ACCEPT AND AWARD 300 WORKFORCE HOUSING EARLY 19 EVACUATION UNIT BUILDING PERMIT ALLOCATIONS PURSUANT 20 TO THE WORKFORCE-AFFORDABLE HOUSING INITIATIVE �? 21 (WORKFORCE INITIATIVE) AUTHORIZED BY THE FLORIDA 22 ADMINISTRATION COMMISSION AND THE FLORIDA DEPARTMENT > 23 ECONOMIC OPPORTUNITY BY AMENDING AS WELL AS 24 CLARIFYING POLICIES 101.2.2, 101.2.4, 101.3.1, 101.3.2, 101.3.3, 101.3.4, 25 101.3.10, 101.3.11, 601.1, 601.1.1, 601.1.2, 601.1.8, 601.1.11, 601.5.1 AND 26 CREATING NEW POLICY 101.3.12 TO ESTABLISH THE SPECIFIC 0 27 WORKFORCE INITIATIVE REQUIREMENTS; PROVIDING FOR 28 SEVERABILITY; PROVIDING FOR REPEAL OF CONFLICTING i 29 PROVISIONS; PROVIDING FOR TRANSMITTAL TO THE STATE LAND 30 PLANNING AGENCY AND THE SECRETARY OF STATE; PROVIDING 31 FOR AMENDMENT TO AND INCORPORATION IN THE MONROE 32 COUNTY COMPREHENSIVE PLAN; PROVIDING FOR AN EFFECTIVE i 33 DATE. (FILE 2020-067) 34 35 36 WHEREAS, the Monroe County Board of County Commissioners conducted a public 37 hearing for the purpose of considering the transmittal pursuant to the State Coordinated Review 38 Process in Sec. 163.3184(4), F.S., to the State Land Planning Agency for objections, 39 recommendations and comments, and to the other Reviewing Agencies as defined in Sec. 40 163.3184(1)(c), F.S., for review and comment on a proposed amendment to the Monroe County `44 41 Year 2030 Comprehensive Plan as described above; and 42 E 43 WHEREAS,the Monroe County Planning Commission and the Monroe County Board of 44 County Commissioners support the requested text amendment; < 45 Resolution No. -2021 Page 1 of 3 File 2020-067 Packet Pg. 3295 Q.3.a 46 NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY 47 COMMISSIONERS OF MONROE COUNTY, FLORIDA: 48 49 Section 1. The foregoing recitals are true and correct, and are hereby incorporated as if fully _ 50 set forth herein. 51 52 Section 2. The Board of County Commissioners does hereby adopt the recommendation of the o 53 Planning Commission to transmit the draft ordinance, attached as Exhibit A, for 54 adoption of the proposed text amendment. 55 56 Section 3. The Board of County Commissioners does hereby transmit the proposed 57 amendment to the State Land Planning Agency for review and comment in 58 accordance with the State Coordinated Review process pursuant to Section 59 163.3184(4), Florida Statutes. 60 61 Section 4. The Monroe County staff is given authority to prepare and submit the required 2 62 transmittal letter and supporting documents for the proposed amendment in 4- 63 accordance with the requirements of Section 163.3184(4), Florida Statutes. 0 64 65 Section 5. Construction and Interpretation. This resolution and its interpretation shall be �? 66 liberally construed and enforced in favor of Monroe County to effectuate its public 67 purpose(s)and policy(ies)of the County. The construction and interpretation of this > 68 resolution and all Monroe County Comprehensive Plan provision(s), Florida 69 Building Code, Florida Statutes, and Monroe County Code(s) provision(s) whose 70 interpretation arises out of, relates to, or is interpreted in connection with this 2 71 resolution shall be liberally construed and enforced in favor of Monroe County to 0 72 effectuate its public purpose(s) and policy(ies) of the County, and shall be deferred 0 73 in favor of the BOCC and such construction and interpretation shall be entitled to 74 great weight in adversarial administrative proceedings, at trial, bankruptcy, and on 75 appeal. 76 77 Section 6. No Liability. Monroe County expressly reserves and in no way shall be deemed to i 78 have waived, for itself or for its officer(s), employee(s), or agent(s), any sovereign, 79 governmental, and any other similar defense, immunity, exemption, or protection 80 against any suit, cause-of-action, demand, or liability. 81 82 Section 7. Severability. If any provision of this resolution, or any part or portion thereof, is � 83 held to be invalid or unenforceable by any administrative hearing officer or court 84 of competent jurisdiction, the invalidity or unenforceability of such provision, or 85 any part or portion thereof, shall neither limit nor impair the operation, 86 enforceability,or validity of any other provision of this resolution, or any remaining 87 part(s) or portion(s) thereof. All other provisions of this resolution, and remaining E 88 part(s) or portion(s)thereof, shall continue unimpaired in full force and effect. 89 e( 90 Section 8. The Clerk of the Board is hereby directed to forward a certified copy of this 91 resolution to the Director of Planning. Resolution No. -2021 Page 2 of 3 File 2020-067 Packet Pg. 3296 Q.3.a 92 93 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, 94 Florida, at a regular meeting held on the day of 95 N 96 Mayor Michelle Coldiron 97 Mayor Pro Tem David Rice 98 Commissioner Craig Cates ° 99 Commissioner Eddie Martinez 100 Commissioner Mike Forster 101 102 103 104 BOARD OF COUNTY COMMISSIONERS 105 OF MONROE COUNTY, FLORIDA 106 107 BY: 2 108 MAYOR MICHELLE COLDIRON 109 c 110 SEAL MON ROE CQ � �NEY ( ) AP { T Elam 112 ATTEST: KEVIN MADOK, CLERK PETER MORRI 113 ASSISTANT COUNTY ATTORNEY � Date. 114 AS DEPUTY CLERK 115 w 2 116 117 c 0 r. cv CD cv Resolution No. -2021 Page 3 of 3 File 2020-067 Packet Pg. 3297 Exhibit A to Transmittal Resolution 3 �� "° s 4 6 MONROE COUNTY, FLORIDA 7 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS 8 9 ORDINANCE NO. -2021 10 11 AN ORDINANCE BY MONROE COUNTY BOARD OF COUNTY 12 COMMISSIONERS ADOPTING AMENDMENTS TO THE MONROE 13 COUNTY 2030 COMPREHENSIVE PLAN AMENDING THE FUTURE o 14 LAND USE ELEMENT AND THE HOUSING ELEMENT TO ESTABLISH 2 15 A NEW BUILDING PERMIT ALLOCATION CATEGORY TO ACCEPT 16 AND AWARD 300 WORKFORCE HOUSING EARLY EVACUATION 17 UNIT BUILDING PERMIT ALLOCATIONS PURSUANT TO THE 18 WORKFORCE-AFFORDABLE HOUSING INITIATIVE (WORKFORCE W 19 INITIATIVE) AUTHORIZED BY THE FLORIDA ADMINISTRATION N 20 COMMISSION AND THE FLORIDA DEPARTMENT ECONOMIC 21 OPPORTUNITY BY AMENDING AS WELL AS CLARIFYING POLICIES N 22 101.2.2, 101.2.4, 101.3.1, 101.3.2, 101.3.3, 101.3.4, 101.3.10, 101.3.11, 601.1, 23 601.1.1, 601.1.2, 601.1.8, 601.1.11, 601.5.1 AND CREATING NEW POLICY 24 101.3.12 TO ESTABLISH THE SPECIFIC WORKFORCE INITIATIVE 25 REQUIREMENTS; PROVIDING FOR SEVERABILITY; PROVIDING 26 FOR REPEAL OF CONFLICTING PROVISIONS; PROVIDING FOR 27 TRANSMITTAL TO THE STATE LAND PLANNING AGENCY AND THE a, 28 SECRETARY OF STATE; PROVIDING FOR AMENDMENT TO AND 29 INCORPORATION IN THE MONROE COUNTY COMPREHENSIVE 30 PLAN; PROVIDING FOR AN EFFECTIVE DATE. (FILE 2020-067) o 31 32 33 WHEREAS,pursuant to Article 8 of the Florida Constitution and Section 125.66, Florida 34 Statutes, Monroe County possesses the police powers to enact ordinances in order to protect the o U 35 health, safety, and welfare of the County's citizens; and LU 36 U 37 WHEREAS, Section 380.0552, F.S., the Florida Keys Area protection and designation as 38 area of critical state concern, establishes the intent to "ensure that the population of the Florida 39 Keys can be safely evacuated," [380.0552(2)(j), F.S.] and requires that amendments to each local 40 government's comprehensive plan to include "goals, objectives, and policies to protect public 41 safety and welfare in the event of a natural disaster by maintaining a hurricane evacuation 42 clearance time for permanent residents of no more than 24 hours; and C44 43 N 44 WHEREAS,the County adopted a Permit Allocation System known as the Rate of Growth 45 Ordinance (ROGO) in order to provide for the safety of residents in the event of a hurricane E 46 evacuation and to protect the significant natural resources of Monroe County, as required by the 47 State of Florida; and Ordinance No. -2021 Page 1 of 19 File 2020-067 Packet Pg. 3298 Exhibit A to Transmittal Resolution 1 2 WHEREAS, on May 2, 2018, Governor Rick Scott issued a press release outlining an 3 initiative to the Florida Department of Economic Opportunity ("DEO") for a Keys Workforce 4 Housing Initiative to allow 1,300 additional Rate of Growth Ordinance (ROGO) allocations 5 throughout the Florida Keys for rental workforce housing, with a condition that the rental 6 occupants evacuate in the early phase (48-hour window) of a hurricane evacuation; and 7 8 WHEREAS, on June 13, 2018, the Florida Administration Commission approved the > 9 Workforce Housing Initiative, after presentation by DEO that the Phase I evacuation (under the 10 existing staged evacuation plan) can be accomplished in 17.5 hours, leaving additional capacity of 11 6.5 hours in Phase I; and 12 13 WHEREAS,the Florida Keys face the quadruple impact of high land values, land limited o 14 by geographic and environmental features, housing supply limited by controlled growth (ROGO) 15 and a tourism economy with a prevalence of lower paying service-sector employment; and 0 16 17 WHEREAS, the need to protect and preserve an adequate inventory of 18 affordable/workforce accessible housing is a continual as well as a growing challenge in the 19 Florida Keys,particularly after the impacts of Hurricane Irma which caused significant damage to 20 housing units throughout the Florida Keys; and 21 22 WHEREAS, on September 19, 2018, the BOCC directed County staff to draft proposed 23 policy alternatives to the State's Keys Workforce Housing Initiative that address several concerns 24 raised related to the enforceability of the evacuation provisions; and 25 26 WHEREAS, on January 30, 2019, the BOCC considered options to accept the 300 units 27 but took no official action; and 28 29 WHEREAS, on January 22, 2020, the BOCC directed staff to prepare an agenda item to 30 discuss and provide direction on whether to direct staff to process Comprehensive Plan and Land o 31 Development Code amendments to: 1) move a portion of market-rate Rate Of Growth Ordinance 32 (ROGO) units to the affordable housing allocation pool and/or 2) accept the 300 Workforce 33 Housing units offered by the DEO required to evacuate in Phase 1 of the Hurricane Evacuation 34 model; and o 35 UI LU 36 WHEREAS, on February 19, 2020,the BOCC discussed whether to direct staff to process U 37 a comprehensive plan and land development code amendment to: 1) move a portion of the 378 z 38 remaining Market Rate -Rate of Growth Ordinance(ROGO)units through 2026 to the Affordable 39 Housing allocation pool and/or 2) accept the 300 Workforce Housing units offered by the DEO 40 required to evacuate in Phase 1 of the hurricane evacuation model. The BOCC did not decide on 41 the potential shifting of market rate allocations to the affordable housing pool but did direct staff 42 to start the process to accept the 300 workforce housing units; and 43 N 44 WHEREAS, on July 15,2020, during a discussion item on potentially shifting market rate 45 allocations to the affordable housing pool, the BOCC provided further direction to staff on E 46 accepting the 300 workforce housing early evacuation unit building permit allocations. The BOCC 47 directed: accept the 300 workforce housing early evacuation unit building permit allocations to be Ordinance No. -2021 Page 2 of 19 File 2020-067 Packet Pg. 3299 Exhibit A to Transmittal Resolution 1 used in exchange for existing affordable allocations at multifamily developments (for developers 2 that agree to the early evacuation restriction)and the affordable housing allocations returned to the 3 County (returned in the exchange)be set aside and banked for takings cases (bank them within an 4 administrative relief pool); and 5 6 WHEREAS, Monroe County policies and regulations adopted in the Monroe County 7 Comprehensive Plan and Land Development Code are to maintain public health, safety, and 8 welfare of the citizens of the Florida Keys and to strengthen our local government capability to 9 manage land use and development; and 10 11 WHEREAS, the Monroe County Development Review Committee (DRC) reviewed and 12 considered the proposed amendments at a regularly scheduled meeting held on the August 25, 13 2020; and 14 2 15 WHEREAS, at a regularly scheduled meeting held on October 28, 2020 the Monroe 0 16 County Planning Commission held a public hearing for the purpose of considering the proposed 0 17 amendment and provided for public comment; and 18 19 WHEREAS, the Monroe County Planning Commission adopted Resolution No. P29-20 W 20 recommending approval for the proposed amendment, with edits identified in the resolution for 21 Policies 101.2.2, 101.3.10 and 101.3.12; and 22 23 WHEREAS, the Monroe County Board of County Commissioners is authorized by 24 Section 125.01(1)(h), F.S., to establish, coordinate and enforce zoning and such business 25 regulations as are necessary for the protection of the public; and 26 27 WHEREAS, at a regularly scheduled meeting held on January 20, 2021, the Monroe 28 County Board of County Commissioners held a public hearing, considered the staff report, and 2 29 provided for public comment and public participation in accordance with the requirements of state 30 law and the procedures adopted for public participation in the planning process; and 0 31 32 WHEREAS,at the January 20,2021,public hearing,the BOCC adopted Resolution - CL 33 2021, transmitting the proposed text amendment to the State Land Planning Agency; and 0. E 34 0 35 WHEREAS, the State Land Planning Agency reviewed the amendment and issued an 36 Objections, Recommendations and Comments (ORC) report, received by the County 37 on ; and z 38 39 WHEREAS,the ORC report stated ; and 40 41 WHEREAS, the County has 180 days from the date of receipt of the ORC to adopt the ` 42 proposed amendment, adopt the amendment with changes or not adopt the amendment; and 43 N 44 WHEREAS, at a regularly scheduled meeting on the BOCC held a 45 public hearing to consider adoption of the proposed Comprehensive Plan text amendment; and E 46 Ordinance No. -2021 Page 3 of 19 File 2020-067 Packet Pg. 3300 Exhibit A to Transmittal Resolution 1 WHEREAS, Monroe County policies and regulations adopted in the Monroe County 2 Comprehensive Plan and Land Development Code are to maintain public health, safety, and 3 welfare of the citizens of the Florida Keys and to strengthen our local government capability to 4 manage land use and development; and 5 6 WHEREAS, based upon the documentation submitted and information provided in the 7 accompanying staff report, the Monroe County Board of County Commissioners makes the 8 following Conclusions of Law: 9 1. The proposed amendment is consistent with the Goals, Objectives and Policies of the 10 Monroe County Year 2030 Comprehensive Plan; and 11 2. The proposed amendment is consistent with the Principles for Guiding Development for 12 the Florida Keys Area of Critical State Concern, Sec. 380.0552(7), F.S.; and 13 3. The proposed amendment is consistent with Part 11 of Chapter 163, Florida Statute 14 2 15 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY 16 COMMISSIONERS OF MONROE COUNTY, FLORIDA: 17 18 Section 1. The Monroe County Comprehensive Plan is hereby amended as follows: W 19 Proposed Amendment: deletions are st+ieke*�hfettg4; additions are shown in underlined. N 20 > 21 Objective 101.2 22 As mandated by the State of Florida, pursuant to Section 380.0552, F.S. and Rule 28-20.140, 23 F.A.C., and to maintain the public health, safety, and welfare, Monroe County shall maintain 24 a maximum hurricane evacuation clearance time of 24 hours and will coordinate with the State 25 Land Planning Agency relative to the 2012 Memorandum of Understanding that has been 26 adopted between the County and all the municipalities and the State agencies. 2 27 4- 28 Policy 101.2.1 0 29 Monroe County shall maintain a memorandum of understanding with the State Land 30 Planning Agency, Division of Emergency Management, Marathon, Islamorada, Key 31 West, Key Colony Beach, and Layton to stipulate, based on professionally acceptable 32 data and analysis,the input variables and assumptions, including regional considerations, 0 33 for utilizing the Florida Division of Emergency Management's (DEM) Transportation 34 Interface for Modeling Evacuations ("TIME") Model to accurately depict evacuation 35 clearance times for the population of the Florida Keys. 36 z 37 Policy 101.2.2 38 Monroe County shall coordinate with all the municipalities, the State Land Planning h� 39 Agency and Division of Emergency Management to update the variables and assumptions 40 for the evacuation clearance time modeling and analyses of the build-out capacity of the 41 Florida Keys Area of Critical State Concern based upon the release of the decennial 42 Census data. Pursuant to the 2012 completed hurricane evacuation clearance time 43 modeling by the State Land Planning Agency, which incorporates the 2010 Census data, E 44 the County may allocate 10 years' worth of growth (197 x 10 = 1,970 allocations, 197 45 annual ROGO rate based on Rule 28-20.140, F.A.C.) through the year 2023, while Ordinance No. -2021 Page 4 of 19 File 2020-067 Packet Pg. 3301 Exhibit A to Transmittal Resolution 1 maintaining an evacuation clearance time of 24 hours. The County-W44 adopted;a slower 2 rate of annual allocations for market rate development to extend the allocation timeframe 3 to 22 .3. without exceeding the total of 1,970 allocations (see Policy 101.3.2). The 4 County shall reevaluate the annual ROGO allocation rate based on: 1) statutory changes 5 for hurricane evacuation clearance time requirement standards; 2) new hurricane 6 evacuation modeling by the State Land Planning Agency and Division of Emergency 7 Management; and 3)a new or revised memorandum of understanding with the State Land 8 Planning Agency, Division of Emergency Management, Marathon, Islamorada, Key 9 West, Key Colony Beach and Layton (see Policy 101.2.1). 10 11 otwlthstanding the fore4oin4 ancl pLrsLi nt tt� Policies 101, 101 .3 3 ancl 101 3e12. 12 Monroe Co LIn!3 s1i�11 est�blisli � new �llt�c�tit�n c�te�t�ry tt� �c c eft end maward 300 13 workforce liousin� e�l�v ev�eLi�tit�n L�nitmbLiilcling��errnit �11t�c�tit�ns ursu nt to the 14 orkforce affordable Housin, fnitiative CN)licv__l_f}1 3 12 "orkforce Initiative 11�ese 15 allocations are in addition.to the maxim urn allocations identified In ides 28-20., ,A-C..A 16 and shall__be re�Lirecl tt> ev eL e in P1i e I t>f`the 4 �1ir ev eL ion of a )endini4 rna'or 0 17 hurricane,: ?, 18 19 Policy 101.2.3 20 The County will consider capital improvements based upon the need for improved r_ 21 hurricane evacuation clearance times. The County will coordinate with the FDOT, the 22 state agency which maintains U.S.1, to ensure transportation projects that improve 23 clearance times are prioritized. 24 25 Policy 101.2.4 26 In the event of a pending major hurricane (Category 35) Monroe County shall 27 implement the following staged/phased evacuation procedures to achieve and maintain 28 an overall 24-hour hurricane evacuation clearance time for the resident population. 0 29 1. Approximately 48 hours in advance of tropical storm winds, a mandatory evacuation 30 of non-residents, visitors, recreational vehicles (RVs), travel trailers, live-aboard 31 vessels (transient and non-transient),affd military personnel anth units__gpprc�vec�.:__a t� 32 deed restiictetl_asmwt�rkft.)rce housln early__evacu_ation Limits from the Florida Keys 33 shall be initiated. State parks and campgrounds should be closed at this time or sooner 0. 34 and entry into the Florida Keys by non-residents should be strictly limited. 0 35 2. Approximately 36 hours in advance of tropical storm winds, a mandatory evacuation LU 36 of mobile home residents, special needs residents, and hospital and nursing home z 37 patients from the Keys shall be initiated. z 38 3. Approximately 30 hours in advance of tropical storm winds, a mandatory phased E5 39 evacuation of permanent residents by evacuation zone (described below) shall be ®i 40 initiated. Existing evacuation zones are as follows: 41 a)Zone 1 -Key West, Stock Island and Key Haven to Boca Chica Bridge (MM 1-6) 42 b) Zone 2 - Boca Chica Bridge to West end of 7-mile Bridge (MM 6-40) 43 c) Zone 3 - West end of 7-Mile Bridge to West end of Long Key Bridge (MM 40- 44 63) 45 d)Zone 4 -West end of Long Key Bridge to CR 905 and CR 905A intersection(MM 46 63-106.5 and MM 1-9.5 of CR 905) 47 e) Zone 5 - 905A to, and including Ocean Reef(MM 106.5-126.5) < Ordinance No. -2021 Page 5 of 19 File 2020-067 Packet Pg. 3302 Exhibit A to Transmittal Resolution 1 2 The actual sequence of the evacuation by zones will vary depending on the individual 3 storm. The concepts embodied in this staged evacuation procedures should be embodied 4 in the appropriate County operational Emergency Management Plans. 5 6 The evacuation plan shall be monitored and updated on an annual basis to reflect 7 increases, decreases and or shifts in population;particularly the resident and non-resident 8 populations. 9 10 For the purpose of implementing Policy 101.2.4,this Policy shall not increase the number 11 of allocations to more than 197 residential units a year, except for affordable housing. 12 Any increase in the number of allocations shall be for affordable housing.M-onmroemCc>L mtv 13 berebv ac°ce is 300 workf`c�rce af`f`c�rclable housin4 early evacuation unit building errnit � 14 al oc trt ns Lirsnant to the Workforce-Affordable E ousin4 Initiative �I'c�licv 1013,12 � m------------mmm_ 2 15 Workforce fnitiativ mission and the . . 16 Florida _f)e a tment Econtli ic, _C3��c)rtunitv�___These allocations ma e in addition to the 17 maximun allocations identified in Rules...28..20 ,A.,C,. shall be restricted to rental 18 occ i ancv_f tir_tli-ose_wli-o derive at least_7-0--of tlieir_inc tine as_ineinbers_of_tlie workf t.)rce W 19 in Monroe County end who meet the affordable housing inco ne cate orres of`the Monroe 20 CoLlnmtv__I a_nd_jevelt> inept ocle. 1�Ife allc>ca ions slfall be re�Liirecl tc> evacuate in Phase 21 1 of. the 4 lix evacuation of`.a..—p lln� ina E 1 urricane. o new additional residential �n 22 dwe-11in4 unit allocations shall be authorized within the Phase I of the 48-Fir evacuation � 23 Unless prt>vetl end provicf ed by the Florida<�dministration Commission and the Florida � 24 f)e aitrnent Fctinc inic C3 tirtLinity-fter_review of hurrica e evacuation modeling results > 25 by the State I...and Planning A 4encv and the Division of l;iner�encv N'lanneinent of ......... 26 available evacuationmca pac°ity and a review of`the level of`_service and available capacity, � 27 f`oralI_p facilitiese �� 28 0 29 Objective 101.3 30 Monroe County shall regulate new residential development based upon the finite carrying 31 capacity of the natural and man-made systems and the growth capacity while maintaining a 32 maximum hurricane evacuation clearance time of 24 hours. a. 33 0' E 34 Policy 101.3.1 0 35 Monroe County shall maintain a Permit Allocation System for new residential LU 36 development known as the Residential Rate of Growth Ordinance (ROGO) System. The z 37 Permit Allocation System shall limit the number of permits issued for new residential z 38 dwelling units. The ROGO allocation system shall apply within the unincorporated area B 39 of the county, excluding areas within the county mainland and within the Ocean Reef ®i 40 planned development (Future development in the Ocean Reef planned development is 41 based upon the December 2010 Ocean Reef Club Vested Development Rights Letter 42 recognized and issued by the Department of Community Affairs). New residential 43 dwelling units included in the ROGO allocation system include the following: affordable 44 housing units; market rate dwelling units; mobile homes; ftH4 institutional residential a 45 units (except hospital rooms)-a!j l._Eorkf`orce 1;lous_i_n. ._earty evacuation units, E 46 Ordinance No. -2021 Page 6 of 19 File 2020-067 Packet Pg. 3303 Exhibit A to Transmittal Resolution 1 Vessels are expressly excluded from the allocation system, as the vessels do not occupy 2 a distinct location, and therefore cannot be accounted for in the County's hurricane 3 evacuation model. Under no circumstances shall a vessel, including live-aboard vessels, 4 or associated wet slips be transferred upland or converted to a dwelling unit of any other 5 type. Vessels or associated wet slips are not considered ROGO allocation awards, and 6 may not be used as the basis for any type of ROGO exemption or THE(Transfer of ROGO 7 Exemption). 8 9 ROGO Allocations for rooms, hotel or motel; campground spaces; transient residential 10 units; and seasonal residential units are subject to Policy 101.3.5. 11 � 12 Policy 101.3.2 13 The number of permits issued for residential dwelling units under the Rate of Growth 14 Ordinance shall not exceed a total of 1,970 new allocations for the time period of July 13 2 15 2013 through July 12,2026,plus any available unused ROGO allocations from a previous 4- 16 ROGO year and 300 workforce housin.6,eariv__evLacuationmunitbuildi 1 Derr It allocations 0 ___ __ ____ ___ ____ 17 a;utborized v the lltiricla clininistratit>n C:t�ininissitin and the Florida Deoartmen:t, 18 1 c on o nic 02p2rtuni ty. A ROGO year means the twelve-month period beginning on July 19 13. Market rate allocations shall not to exceed 126 residential units per year. Unused 20 allocations for market rate shall be available for Administrative Relief. 21 22 In 2012, pursuant to Rule 28-20.140, F.A.C., the Department of Economic Opportunity 23 completed the hurricane evacuation clearance time modeling task and found that with 10 24 years' worth of building permits, the Florida Keys would be at a 24 hour evacuation 25 clearance time. This creates challenges for State of Florida and Monroe County as there 26 are 8,168 privately owned vacant parcels [3,979 Tier I; 393 Tier 11,260 Tier III-A (SPA); 27 3,301 Tier III, and 235 No tier (ORCA, etc.)] and with 1,970 new allocations this may 28 result in a balance of 6,198 privately held vacant parcels at risk of not obtaining permits 0 29 in the future. In recognition of the possibility that the inventory of vacant parcels exceeds 30 the total number of allocations which the State will allow the County to award,the County 31 ado tec1..a slower rate of' annual allocations for market rate develt��1 ent to extend the 32 al1t>cmamti-on tiinmefrainme tt>_2f-26_andl is ac-c� .nLn� 300 workft>rce (afff>rdable} housing early, 33 evacua:tion...:L it building permit allocations pnrsnant to the Workforce-Affordable E 34 Iousin, initiative (Policy lf}l 3m12 �o t�rl ft�rce lnitiamtive authorized by the Florida � _.__ m___ ____ _m m _________ ___ m __m m_ _____ ___m 35 Administration Commission and the lorida �)epartinen:t..�ct�ngj ic..O or itve These � 36 workforce housing early evacuation allocations that are in addition to the inaxii Ln t) 37 bLiildlnsy pef???i:t allocations identified In Liles 28-20 l A C The County will consider 38 adopting an extended timeframe for distribution of the ROGO allocations through 2033 39 with committed financial support from its State and Federal partners. This timeframe can ®i 40 provide a safety net to the County and provide additional time to implement land 41 acquisition and other strategies to reduce the demand for ROGO allocations and help 42 transition land into public ownership. 43 N 44 The County is actively engaged in acquisitions and is requesting its State and Federal 45 partners for assistance with implementing land acquisitions in Monroe County. The 46 County will allocate the 1,970 new dwelling unit allocations through July I2mm 2026 m____ ___________ 47 4 �° _ _ . If substantial financial support is provided by July 12, 241420230 < Ordinance No. -2021 Page 7 of 19 File 2020-067 Packet Pg. 3304 Exhibit A to Transmittal Resolution 1 the County will reevaluate the ROGO distribution allocation schedule and consider an 2 extended timeframe for the distribution of market rate allocations (through a 3 comprehensive plan amendment). Further,the State and County shall develop a mutually 4 agreeable position defending inverse condemnation cases and Bert J. Harris, Jr. Private 5 Property Rights Protection Act cases, with the State having an active role both directly 6 and financially in the defense of such cases. 7 8 The County shall distribute ROGO allocations by ROGO year, as provided in the table 9 below. 10 ROGO Year Annual Allocation Market Rate Affordable Housing Workforce Initiative 0 July 13, 2013—July 12,2014 126 71 0) July 13, 2014—July 12,2015 126 71 July 13, 2015—July 12,2016 126 0 July 13, 2016—July 12,2017 126 N/L1 W July 13, 2017—July 12,2018 126 � cv July 13, 2018—July 12,2019 126 0 July 13, 2019—July 12,2020 126 > 568 total AFH July 13, 2020—July 12,2021 64 (total available July 13, 2021—July 12,2022 64 immediately) July 13, 2022—July 12,2023 64 July 13, 2023—July 12,2024 62 300.** ............ July 13, 2024—July 12,2025 62 July 13, 2025—July 12,2026 62 0 TOTAL 1,260 710* 300** 0� *Includes two annual affordable ROGO allocations for the Big Pine Key/No Name Key subarea)through CL the Incidental Take Permit(ITP) ending in 2023. 0. E ** .azlcfozc c iausrC7 cz z etc c U0 cc��Ir ty trod d strii �rted are first-collie first-sere i sis. F�ec nests for dwellll`U7 Units devela ed and/or deed- i restzictec litilizir1g th workforce �lauslrl 7 c filly e� lcu ltiarl llrlit lilac ltiarls ire sui�icct to t1c la�isiarls of U t'al ey 101.3.12. Z 11 12 The State of Florida, pursuant to Administration Commission Rules, may modify the 13 annual allocation rate. Monroe County will request a Rule change from the ®i 14 Administration Commission to authorize the above allocation timeframe and rate. 15 ' 16 Policy 101.3.3 CD 17 Monroe County shall allocate at least 20% of the annual allocation, or as may be 18 established by the State of Florida, pursuant to Administration Commission Rules, to 0 E 19 affordable housing units as part of ROGO. Any portion of the allocations not used for 20 affordable housing shall be retained and be made available for affordable housing from 21 ROGO year to ROGO year. Affordable housing eligible for this separate allocation a.n Ordinance No. -2021 Page 8 of 19 File 2020-067 Packet Pg. 3305 Exhibit A to Transmittal Resolution 1 workforce liousin&.��IEjy evacuation units shall meet the criteria specified in Policy ............................................................................ 2 601.1.4 and the Land Development Code, but shall not be subject to the competitive 3 Residential Permit Allocation and Point System in Policy 101.6.4. Any parcel proposed 4 for affordable housing or workforce_housi , early evacuation units shall not be located ------- 12.6....................................... 5 within an area designated as Tier I as set forth under Goal 105 or within a Tier 111-A 6 Special Protection Area as set forth in Policy 205.1.1. 7 8 Notwithstanding the foregoing, and notwithstanding Policy 101.6.2. affordable housing 9 ROGO allocations may be awarded to Tier I or Tier 111-A properties which meet all of 10 the following criteria: 11 1. The property contains an existing market rate dwelling unit that meets the criteria in 12 LDC Section 138-22(a) and is determined to be exempt from ROGO; 0 13 2. The proposed replacement affordable dwelling unit meets current Florida Building W 14 Code and is not a mobile home; 2 15 3. The proposed replacement dwelling unit shall be deed restricted for a period of at least 0 4- 16 99 years as affordable housing pursuant to the standards of the Land Development 0 17 Code; and 18 4. The proposed site plan for the replacement affordable dwelling unit does not propose 19 any additional clearing of habitat. 20 21 Policy 101.3.4 22 The Permit Allocation System (or Rate of Growth Ordinance) for new residential 23 development shall specify procedures for: 24 1. establishing the annual number of permits for new residential units to be issued during 25 the next ROGO year based upon, but not limited to the following: 26 a. expired allocations and building permits in previous year; 27 b. allocations available, but not allocated in previous year; 28 c. number of allocations borrowed from future quarters; 0 29 d. vested allocations; 0 30 e. modifications required or provided by Administration Commission Rules; 31 f. modifications required or provided by this plan or agreement pursuant to Chapter 32 380, Florida Statutes; and CL 33 g. receipt or transfer of affordable housing allocations by intergovernmental E0. 34 agreement; and 0 U 35 h. receipt or transfer of allocations pursuant to the 2012 Hurricane Evacuation W 36 Clearance Time Memorandum of Understanding. L)z 37 2. allocation of affordable housing, workforce housing early evacuation units and market < z 38 rate housing units in accordance with Polici�s-Y 1-01,32--an-d-101.3.3; and E5 39 3. timing of the acceptance of applications, evaluation and scoring of applications, and 0 40 issuance of permits for new residential development during the calendar year. 41 42 Policy 101.3.5 43 Due to the limited number of allocations and the State's requirement that the County 44 maintain a maximum hurricane evacuation clearance time of 24 hours, Monroe County E 45 shall prohibit new transient residential allocations for hotel or motel rooms, campground 46 spaces, or spaces for parking a recreational vehicle or travel trailer until May 2022. Ordinance No. -2021 Page 9 of 19 File 2020-067 Packet Pg. 3306 Exhibit A to Transmittal Resolution 1 Lawfully established transient units shall be entitled to one unit for each type of unit in 2 existence before January 4, 1996 for use as a ROGO exemption. (Ord. No. 024-2011) _ 3 N 4 Policy 101.3.6 5 All public and institutional uses (except hospital rooms) that predominately serve the 6 County's non-transient population and which house temporary residents shall be subject 7 to the Permit Allocation System for residential development, except upon factual 8 demonstration that such transient occupancy is of such a nature so as not to adversely 9 impact the hurricane evacuation clearance time of Monroe County. 10 11 12 13 Policy 101.3.9 0 14 For those ROGO applications and properties which have not received a ROGO award for 15 four consecutive years and have applied for administrative relief, which are designated 0 19 16 Tier I, II, or IIIA, the County or the State shall offer to purchase the property if funding 17 for such is available. Refusal of the purchase offer shall not be grounds for granting a ?: 18 ROGO award. 19 '✓ 20 Policy 101.3.10 21 Notwithstanding any other provision of the Plan, except the last sentence of this I'c>licy __ v, 22 I_ .L. ....Iff, bnilcling R .' allocations utilized for affordable housing projects may be 23 pooled and transferred between ROGO sub-areas, excluding the Big Pine/No Name Keys 24 ROGO subarea, and between local government jurisdictions within the Florida Keys Area 25 of Critical State Concern (ACSC). Any such transfer of' m_affmt>rd-able li-ousini4 allocations 26 between local government jurisdictions must be accomplished through an interlocal 27 agreement between the sending and receiving local governments. fnmterlocalma�reerneryts _.___ m__ m 28 that involve ass',g1ji a� the ,onn 's affordable houslia >(not including tf ref a lc 11 L sin 29 allocations banked for mt l�ln s cased allocations tot eais_tingo JlVellrt f 1117its itiithin ci 30 �2ZL dcrrl ulrt wltl� re Lire ent that the associated market rate RmC GO""BP<� exec dons 0 31 be transferred into the unincoj2 rated County as arimexcliange for the affordable housing � 32 allocations transferred to..t1te...i—yiu i i a it ...shall be ..accoi p1istietl..:tlirou_l.I a..j inor CL 33 conditional us erinit a ��rovalmand sliall b s�biect tt> the receiver site criteria in I'c>licy. 34 l f}l 8 and v be transf`erretl tt any subarea within the L nine ter oratetl County, fn no E 35 event shall the County__ l RcIgI antl transfer workforce liogslni; early_ evacuation unit LU 36 allocations between ROGO sub areas._ (2� transfer workforce fi( sing early evacuation U 37 f nt allocations to another �t>verninen�t iuirisclic�tit>n, (3� receive worl�force 1it>u�sin14 early z __ 38 evacuation unitbuil.dim4 allocations fron another governmentJ.urisdiction ter( transfer � 39 affordable housing ROGO allocations received by_the County tv in_exchange for workforce 40 lic>Lrsin ea lv evacu anon a it allocations to anotFier�gt>verninen-t jurxiscliction 41 42 Policy 101.3.11 43 Monroe County may receive additional building permit allocations pursuant to the 2012 44 completed hurricane evacuation clearance time modeling and allocation 45 recommendations by the State Land Planning Agency and the Administration E 46 Commission's direction that the City of Key West wE.m4,4 transfer annually (by July 15th) 47 any remaining unused allocations for that year to the other Florida Keys' local Ordinance No. -2021 Page 10 of 19 File 2020-067 Packet Pg. 3307 Exhibit A to Transmittal Resolution 1 governments based upon the local governments' ratio of vacant land. Any transferred 2 allocations from the City of Key West to Monroe County shall be made available for 3 Administrative Relief. Monroe County may receive...Intl 300 building err It ............................................................... award _1�. .......... 4 a-l-l-oc--at--i-o-n---s-----d-e-s--i-gnated as w(.)rl<f(.)rce housing early__�eLLL io units suant to the 5 'Aorkforce-Affordable Housin 0 ........................................................................................................................................ 6 eJt__Ly..the Florida Administration Commission and the Florida Df - ---- - - --- ---- - - - wand---- ---- - 7 Econ.oi-nic.()pp -nurn allocations .................................................. 8 identified in Rules 28-20,--F,A.-,-C-,-.,--an-d--slialI be recluired to evacuate in Phase I ofthe 48- -------------------------------------------------------------------------------------- 9 fir evacuation ofa n E.1,1111ri cane, ............................................................................... ......... .............................. 10 11 Policv 101.3.12 12 Workforce Initiative. To-su ort Monroe s workforce b fleviating ------------------------------- ---------------------j------- _y��_aLtjsjLqi_nts 13 on affordable 1i lits and address 0 s .gjg�n.tial.j abil' ................................................................... Lg 2- ................................................... ...... ............ .... ... . 14 th-eC-0-un tv__I-s--pqElt in the " orkforce-AfTordable Housim4 fniti force 2 0 15 _fjji ti a v a 4- tiyg gpp.Ig ��djjjjn t ej e_13. 2018 meeting of Florida Administration .......... g b ...... ........ le 16 Commission, Monroe CountVacCegL�.... ho early evacuation -------------------------------------------------------------------- ---------- ...jQQ---work-f'(.)rc-e---------usillL. ........................... 0 17 buildinv permit allocatio tins .jjj�.jjant to the " orkforce-AfTordable Housing Initiative ..................... ................ ........................................ ...... ....................................................................................................................................................................18 authorized by the Florida Administration Coi-ni-nission and the Florida _j2.eLpqrtrn_en_t - - --- ---- - --- -- - --- --- --- -- 19 _E..c.o.n..Q1-.n i.c.....QM.jqjjjji.the The 'Aorkforce-Affordable Housing Initiative will refflil' ............... 20 tlmwellin Lrnits ctrnstrrrcted and"ter deed restricted with workforce housim4 early 0 21 evacuation build, g allocations to evacuate occ ants in Phase I of' the 48-fir ..........................................................................n _mmmt...�q.....................................................................................................................Lip------------------------------------------------------------------ 22 ev- on-uati-on--of'-a-oenclin�4i-n or hurricane. the criteria below, 23 in the "`orkforce initiative, Monroe County slial 24 responsible foi-the I e_L�2L_ ----------- > 25 rn,!n.agy—emen distribution. and enforcement of' requirements associated with the ...................................................... 26 workforce housing early evacuation building locations, Monroe Cou shall workforce -------------------------------------------- ............ 27 ensure adherence to these ; throm-fl'i im lernentation I c and shall i�M p ry c (.) of this ensure............................................................................................................. j1irel-nents C u -------------------- ------ 28 ann ua I IV .�L_L�jjhe Florida D � artment Economic 0 Lunityar ortindicatim-the 0 --------------- ----------------------------e _I)p2L —------- 29 number of' workforce housiriv early evacuation units built and/or deed restricted. .number .............................................. 30 occjiMncy_jq_�..,�i2jj units in Phase f of' 0 31 an evacuation, The annual re rt.s iall.be.p1gyided to the State in a timely manner such ..........................................................................................................................p ... ...................................... 32 that the State rnav include the inforrnationjn_thj�_r t�red Annual Report toydrie G.jovernor ------------------------------------------------------------------------------------------ t................................pi.) 33 and Cabinet on the Coun _afitsWork. ProgE ......................................................................................................... ..pgEsuqnt E 34 to Rule 28-20,F,A.,C, 0 ---------------- U 35 LU 36 Dwelling_LnjjLAeveltr eij and ter deed restricted utilizi g the_w U n workforce housing early z 37 e.y.q.c..ua1J o.n.....u.n.i.t....a.1 I.Q.c..q.t.i.oD s...Ar.esubj�jo the following: < .......... ................................................................. z 38 39 (a) Re allocations shall be available 0 40 only for a for Lexcham4e for affordable allocations,,"exennntions and-reauire a -- -- ---I--- 41 reservation via BOCC resolution, The BOCC rnay., at its discretion p ................................................................................................................................................................................................................................. 42 conditio is -on -an reservation as it deerns iate, The BQCC may., -�L its -----------------D----------------i---------------------------------------------------------giRRL.)2r ...L _ 43 discretion,excl reserved affordable allocations for allocations under .......................................... exchange e�_xi qt n gy........................................................................................................................................................................................................................................... 44 the "`orkforce fnitiatrve tcf private develtrpment and nonprofit sector rtners ------------- 45 W.illim4 to rneet the reclurrernents of' the workforce housing early evacuation unit E ....... ....... 46 allocations, Further, the BOCC 'na s approve the exchange of 47 e is,in deed restricted aff(.)rdabl .1 (lawful affordable exemptions 1 j.Qjj )��un rts�c lawful I affordable�(.) c bat < Ordinance No. -2021 Page 11 of 19 File 2020-067 Packet Pg. 3308 Exhibit A to Transmittal Resolution 1 exi.s in multifarnit q i4� I:nents f(.)r allocations under the Workforce . .............................. ................................................................................................................................................................................... 2 fnitiativ level lament and no f'i t secto 'I im4 to meet the 3 of the workforce housim4 early evacuation unit allocations, 4 _(I_)__Dje�_afT()rdable allocations returned to the_Coun \L -L,Iiam4e f'or workf(.)rce 5 hous n i., �e�111 unit allocations shall be banked and used f(.)r fbture ............... .0 6 administrative relief', beneficial use determinations and to resolve inverse 7 condernnation cases and Bert.J,.Harri5. Jr, Private Propeqy-Ejghjs,�� .................................................................................................................................................................. 8 A.-ct.-case.s., 9 F,A.,C,,..ttie affordable ................ .................................10 al-I oc a-ti-o-n.s.-re turn el-to-Iti-e-C ou-n-tysli-a I-Lb e--rn ai n tai n ed a.s--aff(.)rd-ab-le--allocations 11 and shall also be returned..:to e..orii,)inal aff(.)rdable..Ii u i' i4 ate Tory very and ...... ................................................. ...o s n ..c .............. .................. 12 low""low""I-nedian incorne vs, moderate incorne ----------------------------------------------------------------------------------- 0 13allocations must be utilized based r-f W 14 onth-e-ori6nal approved aff(.)rdable housim4 ' -or-a-l-esse-r--inc-oi-n-e 2 .. 015 c.. t UMV, - 16 (4) �Llrninistrative relief'rneans actions taken_bv the Coun \Lgrantingy the owner oft' 0 17 real p .................. �1t2p cati'o,n...o,f' ,Ii,e....date....of,' G,r,ow,t1i 18 Ordinance__ vided they i-neet the criteria established in 19 the Cornp je!j�ive Plan and L,and Develo ment Code, ................................... ..............................................................................................................P-------------------------- 20 (5) 13,eLeficial use means the use ofjjj.)j)ertK_Ltjat allows an owner to derive a benefit ---------------------------------------------------------- 0 21 or. c.....profit in the exercise of'a b ri gfi t, For th e p �o.�jf'.Ltjis i y g�j�g.prop ........................................................ ....................................... .. ........ 22 beneficial use shall mean the rninirnurn use-of'the-RL.)TertK -�EK avoid ---------------------------------------------------------------------------------------------- 23 the fin din g.gf.�I.jegulcgory takini� 4 under curreryt land use case law, ..................... 24 (b) The construction of' dwdLin.i4 units the redevel 1.1--ment or the deed restriction of' 25 e is,in dwelling units utilizing workf(.)rce housing early evacuation unit 1 � ................................. 26 al I ocationL_sIjgjj_.LeqLiire a �d o en�Ld. P-In -La reerneiyt, 27 (c) ..A. ..l....l.....work......f....(....)..rc..e....h......o.....u.si.n. nsurin 28 (1) Before any buildin ri-niti-nav be issued for anv-structu e.,X .)rtt(.)n orl iase of' ------------------------------------- - 0 4- 29 a..p egj..sjjbject to the Workforce fni'tiative., a restrictive covenant shall be ............................................................................................................................................. 30 _jfj��J)fanning Director and County Attorney and recorded in the 0 31 OfTice of the Clerk of the Coun ision of' ............................................................................................................................................ ................................... 32 tli-i-s--se-ct-ion--ru-nnin.i4 in favor of the CoLintv_-and-e-n-f'orceabl-e_bv--ttie--C-o-un-tv--and_ , CL 33 i a licable. , 'r ci cytingy munig The f'011( ments shall a a t )wi re P P i p t7V E 34 ajjply_to these restrictive covenants: 0 ------------------------------------------------------------------ U 1 35 a, The covenants..f(.)r any workforce housing evacuation units shall be ............................... . ............ . ......... ........................ 36 effec-ti-ve-f(.)r-99-ve-ars, Z 37 b, The covenants shall not commence running....until a certificate of'occu a a n The.............................................................................................................................................................................. Z 38 has been issued by the Building-Officialfoi-the dwelling unrt or dwelling B ---------------------------------------- W 39 units to which the covenant or covenants 0 units ....�� 40 c� exist m4 dwellim4 units that are deed-restricted as workf(.)rce housing 41 early evacuation units.....tfj�� covenants shall commence runnin .............. .................................................................................................................................................................... 42 recordation in the Official Records of'Monroe Countv, 43 housim4 earl C44 .........��evac�ucgton�unyts 44 to be restricted to rentalf(.)r those who derive at least 70% of their-------------------------------------- E 45 income as members of' tbe workf'(.)rce in Monroe Co n ...............................................................................................................................................................................................................................................U ty and who meet the 46 aff(.)rdable liousi'm4 income cafe pries of' the Monroe Countv Land Ordinance No. -2021 Page 12 of 19 File 2020-067 Packet Pg. 3309 Exhibit A to Transmittal Resolution 1 Dev I p annu, .................9 Q ja�mt...Cj�de........... ....are r..e.qjiired to ally verrfy their 2 einP—I()—V-tEgn-t--and/"-or-i-n-coi-ne-e-li,�Tibility, 3 f The coyvenants shall re mire oyccrr ants toy evacuate in Phase I of' the 48-fir 4 evacuation of' a R!��Iing �in,��IL ------------------------------------- jju-rri-can-e,---Pe-r-s-ons---bvim4 in the workf(.)rce 5 housinv early evacuation units who rnav be exern ted frorn evacuation .................................................. .0 6 LeLquirernents are limited to law enforcement, correctional and fire_12�1�� ----------------------------------------------------------------------------------------------------------------------------------------------- 7 health care d c ern ees w4h ei-neri4ency i-nanai4ei-neryt 1��.j D�j ::In TIt ji ..e p1gy ........................... ................... ........ ............. . 8 Les2L)nsibilities, ff_tliere is an occul -q indicates their I oy-Egn t is jqj2j...�II.E� indicates �LID_pt 9 considered a'first-respgjj�j�p.E.pg5ition' and not included in the list of.exern tions cons ............................................................................................................................................................................p........... 10 ab-ove.,--th-en---the---P I-a n-n-i n- whether the il ernain during an .P. iHi i 12 erne _n -VLiL�Ei!L� ,-I�L,e cy --- S--- hall submit 0 13 of'an affidavit of' the onsite ............................................................................ 2 14 pLgp,ejrr\� -g gernent- 0 15 ejaen ts which contain a sepqjgj�j 4- ................................................................................................................ 16 di-sc-losu-r-e-reguInni4 rental occui)ants to acknowlech4e the existim4 restrictive 0 17 covenant on the unit recuirim4 evacuation in Phase I of' the 48-lir evacuation ........................................................................ ........................... 18 and that failure mto adhere to the Phase I evacuation r told result in �nllt!�Illg!21-c------------------------------ 19 severe_p�gn�jjjiesjnclu gn ............ ........................di -p t ............... 20 The covenants uire -(f-)---- ----- -----s_hs 11----req on�syte ��.LgMrtK -Lim�!jg 21 sIli P.L2training in evacuation 22 ProyceolLrres---and--man---a-ckmn-owl-edgernent that failure to adhere to the Phase I 23 evac ernent could result in severeincludim4 termination, .................. u-i-r---------------ry 0UI-Q---------------i-Y i------------------ -- . ....... 24 (d) �a%oyrl�ft)rce housing early evacuation units shall be restricted to rental occ - -- - L�---------------------------------------------------------------------------------------------------------------jij2Ln c y > 25 f(.)r those who derive at least 70% of"their incorne as members of"the workf(.)rce in ........................................................................................................................................................................................................................................................................................................................................................................... 26 Monroe County and who meet the aff(.)rdablL-hou ' gy inc orne categories oft' title L- - - Ltii_ 27 N12D r..Q.e....0 0-Un.17v L.,and DeveloVrnent Code, 'A,orkf(.)rce means individuals or f"arnilies 28 who are 0 29 residents or vi si tors, ............................................. 0 30 (e) Workft) e Ii early evacuation units shall require onsite ertY-----------------r-c----------OU-S-iLL—--------------------------------------- --DLU— ?: 31 rn'!na i4ern en t with 32 to-rn-a uation, Durim4 traditional a. 33 wtyrl In h-hours.....0,1�g-sw kf(.)rce E 34 housing early!�L�jcuation unit devel�� p \�, Outside the traditional 0 ------------- ------------------------------------ ---------------------------------------------------- 35 Y�SllkiU boyars-- --Ih�LPL2P 1 d to 36 ev ac uati on or de r s-, z 37 (f) Djg.p.Egp gjly rn, a.4enert entity foi-te w()rl<f()rce husin4.�Iy_evacuation units < z 38 shall be re uired to an verify the -Liploy-Egnt and incorne eligibility B ------------------------ verify------------Lt ___t ------------------------------------------ W 39 iej!�jg.(5Lre II.the total units..onjhe.sitg__t_he occupancy rates of units..�fld.!��n�lgj 0 j2Q ............................................................. .................................... 40 coi Hance with the r o evacuate the units in Phase f of'an evacuation. 41 includim4 the number of' occ ants that are exei t frorn the evacuation ................................... 42 LeLqu---i--r-erne---n---t-s---,-1-'-1-,--e2L.)XertKinLi2L_4enert entity_ nLtsLLLLlh!Ei it ..r.?Io.)rt toydi e Planning C14 43 and Environmental Resources Dep.51j:q ��nt.by May I of each year, Further...!L16 and 44 lease and this annual rei)ort_sliall (.):��L -ng er and be available --------------------------------------------------—------------------------ _pL_L �y_l 45 fo j Ins by the County durim-)�Jraditional workin hours, E i n ............R-3�oulltv� 46 (g) earlv evacuation units shall be located within an area des ignate d 47mmmmmm mmm < Ordinance No. -2021 Page 13 of 19 File 2020-067 Packet Pg. 3310 Exhibit A to Transmittal Resolution 1 (h) M,orkf(.)rce housina..e, = on e or 2 w-i th i-n--a--C-oastal B-a arrier-R-e s-ource,-SVstern__(LDRS), Workft) e lit usim4 early evacuation units slial I be located on a or Wei-tv winicin Inas 3 (i) .............................. .................. ....... 4 all---infrastructure----a v-a i-I a-b-I e--- and 5 dis osal wastewater rneeti n ad d I., S c,i4 P.................................................................................... 0 6 (j) _tt_E�glkforce housing early evacuation units must dernonstrate coli 1 pliance with -------------------------------—---------------------------------------------------------------------------------------- 7 ajj�gpp applicable federal standards for accessibility for persons with disabilities �, DA ................................................................................................................................................................................ 8 Con fiance 9 (k) extent ��.ticable—. a develop I ousim4 earlv ......................... -1 �mt..PIJ...JZIDI w.or..kJ(..).r.c.e..J.i........................... ... ................................. 10 ev-ac-uati-on----uni-t----al-locati-on-s----sh-all----il!Lt.Irp )rcTte sustainable and resilient design 11 p s b e o principles into the overall site desii4n and be acces i I ..t ern oyrnent centers in P ....................................................... ................................................................ .......... ............................ U) 12 K-ev--'A,e��- c-k--fs Stol-an-d--andara --Mtti-on-,. M 0 13 14 GOAL 601 2 15 Monroe County shall adopt programs and policies to facilitate access by residents to adequate and 0 4- 16 affordable housing that is safe, decent, and structurally sound, and that meets the needs of the 0 17 population based on type, tenure characteristics, unit size and individual preferences. 18 19 Objective 601.1 20 l'o-ensure--tli-a-t-a-f'f(.)rd-abl-e-tiou-s-in� o� ortun i ties are available throm4l'i out the entire corrim 21 and to maintain a balanced and sustainable local econorriv and the revision of' essential ................................................................................................................................................................................................................................................................... 22 s-erv-ic-es.,, Monroe County shall implement the following defined policies to reduce estimated 23 affordable housing need for its workforce and households in the very low, low, median and ........................................24 moderate income classifications. 25 26 Policy 601.1.1 27 Monroe County shall maintain land development regulations, in conjunction with the 28 Permit Allocation System, for apportioning future affordable housing development sm 0 4- 29 fff ff Rf ffpaa-S�I. 30 0 31 Policy 601.1.2 32 Monroe County shall continile_,expan-d its participation in Federal and State housing CL 33 assistance programs to rehabilitate owner and rental housing for very low, low, median, 0. E 34 and moderate income residents by seeking grants, loans, and technical assistance in 0 35 conjunction with the Monroe County Housing Authority b-,t-M 47-2424- 36 Z 37 Policy 601.1.3 < Z 38 The Monroe County Land Authority shall maintain a list of buildable properties owned B 39 or targeted for acquisition by the Land Authority which potentially could be donated or 0 40 made available for affordable housing. This list will be updated annually and made 41 available to the public. The guidelines established in Policies 60 1.1.10 and 60 1.1.11 shall 42 be considered in the formulation of this list. 43 44 Policy 601.1.4 E 45 All affordable housing projects which receive development benefits from Monroe U 46 County, including but not limited to ROGO allocation award(s) reserved for affordable 47 housing, maximum net density, or donations of land, shall be required to maintain the < Ordinance No. -2021 Page 14 of 19 File 2020-067 Packet Pg. 3311 Exhibit A to Transmittal Resolution 1 project as affordable for a period of 99 years pursuant to deed restrictions or other 2 mechanisms specified in the Land Development Code, and administered by Monroe 3 County or the Monroe County Housing Authority. 4 5 Policy 601.1.5 6 If Monroe County funding or County-donated land is to be used for any affordable 7 housing project, alternative sites shall be assessed according to the following guidelines: 8 1. The location of endangered species habitat. Sites within known, probable, or 9 potentially suitable threatened or endangered species habitat shall be avoided. 10 2. The environmental sensitivity of the vegetative habitat. The habitat sensitivity shall 11 be determined according to the ranking specified in the Environmental Design 12 Criteria section of the Land Development Code. Disturbed sites shall be selected, 13 unless no feasible alternative is available. 14 3. Sites located within V-Zones, on offshore islands, or within CBRS units shall be 2 15 avoided. 0 16 4. The level of service provided in the vicinity for all public facilities. Areas which are 0 17 at or near capacity for one or more public facility should be avoided. 18 5. Proximity to employment and retail centers. Sites within five miles of employment 19 and retail centers shall be preferred. 20 21 Policy 601.1.6 22 Monroe County shall identify funding sources that could be made available to support 23 community-based non-profit organizations such as Habitat for Humanity in their efforts 24 to provide adequate affordable housing. 25 26 Policy 601.1.7 27 Monroe County shall continue to participate in the State Housing Incentives Partnership 28 program as specified in the 1992 William Sadowski Affordable Housing Act. Monroe 0 29 County shall also continue to maintain a Local Housing Assistance Plan and Affordable -19 30 Housing Incentive Strategies as specified in the Act and recommended by the Monroe 31 County Affordable Housing Advisory Committee. 32 CL 33 Policy 601.1.8 0. 34 Monroe County shall allocate at least 20% of the annual ROGO allocation, or as may be 0 35 established by the State of Florida, pursuant to Administration Commission Rules, to 36 affordable housing units, as specified in Policy 101.3.3. Affordable housing eligible for z 37 this separate allocation must meet the criteria established in the Land Development Code. z 38 Monroe County r awardm__300 additimaml building hermit allocations desii4nated as B 39 workforce�10 sln early evac uatit�n Units LirsLiant to the `orkforce- f`ffordable Housing 40 lnitiamtive ___fI?tllic,v 101.3.12 _orkforc,e Initiative ams rtviclecm by mt1e Florida. � _.__ 41 Administration Commission and the lorida�)epa�trnen:t..�ct�ntll is C3pportu ity, These 42 allocations_are in addition to the maxima n allocations identified in Rules 28 2f1 A..C.. 43 are restricted to rental occ upa�cv f`t�r tlit�se w1it� derive at least 7f}°o t�f`their inc tine as `V 44 members bers of` the workforce in Monroe Ct un\ antl wlit. meet the affordable housing � _.__ __ ___ _____ m m_ - 45 in ct» e categories of the Mylonroe County 1 and Qevelopmee C t. and shall be re Lured 46 to evacuate inml tease l of_the 481ir evacuationm of a_ enctmin� ina�t�r 1iLirricanee 47 Ordinance No. -2021 Page 15 of 19 File 2020-067 Packet Pg. 3312 Exhibit A to Transmittal Resolution 1 2 Policy 601.1.9 3 Monroe County shall maintain land development regulations which may include density 4 bonuses, impact fee waiver programs, and other possible regulations to encourage 5 affordable housing. 6 7 Policy 601.1.10 8 The Land Authority may acquire land for affordable housing projects if they are deemed 9 appropriate and acceptable by the Land Authority as meeting the intent of: 10 1. the affordable housing provisions in the Land Authority's enabling legislation; 11 2. the goals, objectives and policies of this Plan; and 12 3. the land use designations specified on the Future Land Use Map and in the Monroe 13 County Land Development Regulations. 14 2 15 Policy 601.1.11 4- 16 The Land Authority shall not list or acquire vacmanmt_lands as potential affordable housing 0 17 sites if the lands exhibit any of the following characteristics: 18 1. Any portion of the land lies within a known, probable, or potentially suitable 19 threatened or endangered species habitat. 20 2. The land has a Tier designation other than Tier III. C 21 3. The land is located in a V-Zone, on an offshore island or within a CBRS unit. 22 23 Policy 601.1.12 24 Monroe County shall annually monitor the eligibility of the occupants of housing units 25 which have received special benefits, including but not limited to those issued under the 26 affordable housing provisions specified in the Land Development Code or those issued 27 through the Permit Allocation System. If occupants no longer meet the eligibility criteria 28 specified in the Plan and in the Land Development Code, and their eligibility period has 0 29 not expired, then Monroe County may take any one or a combination of the following 0 30 actions: 31 1. require the payment of impact fees, if they were waived; 32 2. proceed with remedial actions through the Department of Code Compliance, as a a. 33 violation of the Monroe County Code; E 34 3. take civil court action as authorized by statute, common law, or via agreement o U 35 between an applicant and the County; and/or 36 4. require the sale or rental of the unit(s)to eligible occupants. z 37 < z 38 Policy 601.1.13 39 Monroe County shall maintain land development regulations on inclusionary housing and 40 shall evaluate expanding the inclusionary housing requirements to include or address 41 nonresidential and transient development and redevelopment based on specific data and 42 analysis. 43 N 44 Objective 601.2 45 Monroe County shall adopt programs and policies to encourage housing of various types, sizes 46 and price ranges to meet the demands of current and future residents 47 Ordinance No. -2021 Page 16 of 19 File 2020-067 Packet Pg. 3313 Exhibit A to Transmittal Resolution 1 2 Policy 601.2.1 3 Public-private partnerships shall be encouraged to improve coordination among 4 participants involved in housing production. In these efforts, the County will establish a 5 comprehensive central depository for housing information located at the Monroe County 6 Housing Authority and Growth Management Division for the coordination and 7 cooperation among public and private agencies which collect and use housing data. 8 9 Objective 601.3 10 Monroe County shall continue implementation efforts to eliminate substandard housing and to 11 preserve, conserve and enhance the existing housing stock, including historic structures and 12 sites. 0 13 14 Policy 601.3.1 2 15 Monroe County shall coordinate with other County agencies to monitor housing 4- 16 conditions. Standards for evaluation of the structural condition of the housing stock are 0 17 summarized below: 18 Sound: Most housing units in this category are in good condition and have no visible 19 defects. However, some structures with slight defects are also included. 20 21 Deteriorating: A housing unit in this category needs more repair than would be 22 provided in the course of regular maintenance, such as repainting. A housing unit is 23 classified as deteriorating when its deficiencies indicate a lack of proper upkeep. 24 25 Dilapidated(Substandard): A housing unit in this category indicates that the unit can 26 no longer provide safe and adequate shelter or is of inadequate original construction 27 including being constructed below the minimum required elevation by FEMA or the 28 County's Floodplain Regulations. 0 4- 29 30 Policy 601.3.2 0 31 The County Code Compliance Office and Building Department will enforce building �� 32 code regulations and County ordinances governing the structural condition of the housing CL 33 stock, to ensure the provision of safe, decent and sanitary housing and stabilization of 0 34 residential neighborhoods. 0 35 LU 36 Policy 601.3.3 Z 37 Monroe County shall encourage expanded use of U.S. Department of Housing and Urban z 38 Development (HUD) rental rehabilitation programs by the Monroe County Housing 39 Authority and State and Federal Floodplain or Hazard Mitigation programs to facilitate ®i 40 increased private reinvestment in housing by providing information, technical assistance 41 in applications for federal and State funding, or provide local public funds for 42 rehabilitation purposes. 43 N 44 Policy 601.3.4 45 Monroe County shall encourage identification and improvement of historically 46 significant housing through the coordination of public information programs defining 47 benefits and improvement funding sources. C Ordinance No. -2021 Page 17 of 19 File 2020-067 Packet Pg. 3314 Exhibit A to Transmittal Resolution 1 2 Objective 601.4 3 Monroe County shall maintain land development regulations which allow group homes and 4 foster care facilities licensed or funded by the Florida Department of Health(DOH), as well as 5 subsidized housing for elderly residents of the County, to be located in residential areas as 6 appropriate. 7 8 Policy 601.4.1 9 Monroe County shall maintain land development regulations which permit group homes 10 and foster care facilities (homes of six or fewer residences which otherwise meet the 11 definition of Community Residential Home pursuant to F.S. § 419.001(1)(a)) licensed or 12 funded by the DOH in all land use categories which permit residential development where 13 consistent with other goals, objectives, and policies of this Comprehensive Plan. 14 2 15 Policy 601.4.2 4- 16 The County shall identify and evaluate alternative strategies to expand subsidized housing 0 17 programs for elderly residents of Monroe County through coordination with the Monroe 18 County Housing Authority, and encourage their development by private, community- 19 based non-profit, or public entities, as well as public/private partnerships. 20 21 Objective 601.5 22 The County shall provide uniform and equitable treatment for persons and businesses displaced 23 by state and local government programs, consistent with F.S. § 421.55. 24 25 Policy 601.5.1 26 By May 1, 2017 024, Monroe County shall adopt uniform relocation standards for 27 displaced households.mm 28 29 30 Section 2. Severability. If any section, paragraph, subdivision, clause, sentence or o 31 provision of this ordinance shall be adjudged by any court of competent jurisdiction to be invalid, 32 such judgment shall not affect, impair, invalidate, or nullify the remainder of this ordinance, but a. 33 the effect thereof shall be confined to the section, paragraph, subdivision, clause, sentence, or 0. E 34 provision immediately involved in the controversy in which such judgment or decree shall be 35 rendered. 36 37 Section 3. Conflicting Provisions. All ordinances or parts of ordinances in conflict with 38 this ordinance are hereby repealed to the extent of said conflict. E5 39 40 Section 4. Transmittal. This ordinance shall be transmitted to the Florida State Land 41 Planning Agency as required by F.S. 380.05 (11) and F.S. 380.0552(9). 42 43 Section 5. Filing. This ordinance shall be filed in the Office of the Secretary of the State 44 of Florida but shall not become effective until a notice is issued by the State Land Planning Agency a 45 or Administration Commission finding the amendment in compliance with Chapter 163, Florida 46 Statutes and after any applicable challenges have been resolved. 47 Ordinance No. -2021 Page 18 of 19 File 2020-067 Packet Pg. 3315 Exhibit A to Transmittal Resolution 1 Section 6. Inclusion in the Monroe County Comprehensive Plan. The text amendment 2 shall be incorporated in the Monroe County Comprehensive Plan. The numbering of the foregoing 3 amendment may be renumbered to conform to the numbering in the Monroe County 4 Comprehensive Plan. 5 6 Section 7. Effective Date. This ordinance shall become as provided by law and stated 7 above. 8 9 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, 10 Florida, at a regular meeting held on the day of 11 '� 12 Mayor Michelle Coldiron 0 13 Mayor Pro Tem David Rice 14 Commissioner Craig Cates 0 15 Commissioner Eddie Martinez 2- 16 Commissioner Mike Forster ?: 17CD 18 W 19 20 BOARD OF COUNTY COMMISSIONERS 21 OF MONROE COUNTY, FLORIDA T 22 23 BY 24 MAYOR MICHELLE COLDIRON > 25 26 (SEAL) a 27 2 28 ATTEST: KEVIN MADOK, CLERK 4- 29 0 30 AS DEPUTY CLERK 31 CL LU r. cv CD cv m 0 Ordinance No. -2021 Page 19 of 19 File 2020-067 Packet Pg. 3316 t a 2 c 4 5 MEMORANDUM 6 MONROE COUNTY PLANNING&ENVIRONMENTAL RESOURCES DEPARTMENT 7 8 To: Monroe County Board of County Commissioners a 9 10 Through: Emily Schemper, AICP, CFM, Senior Director of Planning & Environmental Resources 11 0 12 From: Mayte Santamaria, Senior Planning Policy Advisor 13 0 14 Date: December 28, 2020, updated December 31, 2020 0 15 16 Subject: An ordinance by Monroe County Board of County Commissioners adopting amendments 17 to the Monroe County 2030 Comprehensive Plan amending the Future Land Use Element 18 and the Housing Element to establish a new building permit allocation category to accept 19 and award 300 workforce housing early evacuation unit building permit allocations .2 20 pursuant to the Workforce-Affordable Housing Initiative (Workforce Initiative) 21 authorized by the Florida Administration Commission and the Florida Department 22 Economic Opportunity by amending as well as clarifying Policies 101.2.2, 101.2.4, 23 101.3.1, 101.3.2, 101.3.3, 101.3.4, 101.3.10, 101.3.11, 601.1, 601.1.1, 601.1.2, 601.1.8 24 601.1.11, 601.5.1 and creating new Policy 101.3.12 to establish the specific Workforce 25 Initiative requirements. (File 2020-067) 26 27 Meeting: January 20, 2021 28 29 I. REQUEST 30 31 As directed by the BOCC on February 19, 2020 and July 15, 2020, the Monroe County Planning & 32 Environmental Resources Department is proposing an amendment to the 2030 Comprehensive Plan 33 amending the Future Land Use Element and the Housing Element to establish a new building permit 34 allocation category to accept and award 300 workforce housing early evacuation unit building permit 35 allocations pursuant to the Workforce-Affordable Housing Initiative (Workforce Initiative) authorized 36 by the Florida Administration Commission and the Florida Department Economic Opportunity by 0 37 amending as well as clarifying Policies 101.2.2, 101.2.4, 101.3.1, 101.3.2, 101.3.3, 101.3.4, 101.3.10, 38 101.3.11, 601.1, 601.1.1, 601.1.2, 601.1.8, 601.1.11, 601.5.1 and creating new Policy 101.3.12 to 39 establish the specific Workforce Initiative requirements. 40 41 On the February 19, 2020, BOCC meeting, the BOCC discussed whether to direct staff to process a i 42 comprehensive plan and land development code amendment to: 1) move a portion of the 378 remaining 43 Market Rate - Rate of Growth Ordinance (ROGO) units through 2026 to the Affordable Housing 44 allocation pool and/or 2) accept the 300 Workforce Housing units offered by the Department of 45 Economic Opportunity (DEO) required to evacuate in Phase 1 of the hurricane evacuation model. The 46 BOCC did not decide on the potential shifting of market rate allocations to the affordable housing pool BOCC Staff Report Page 1 of 40 File 42020-067 Packet Pg. 3317 Q.3.c I (BOCC wanted staff to develop a menu of options). Additionally, the BOCC directed staff to start the 2 process to accept the 300 workforce housing units. 3 c 4 On July 15, 2020, during a discussion item on potentially shifting market rate allocations to the 5 affordable housing pool (agenda item I5), the BOCC provided further direction to staff on accepting the 6 300 workforce housing early evacuation unit building permit allocations. The BOCC directed: accept 7 the 300 workforce housing early evacuation unit buildingpermit allocations to be used in exchange for 8 existing affordable allocations at multifamily developments (for developers that agree to the early 9 evacuation restriction) and the affordable housing allocations returned to the County (returned in the 10 exchange) be set aside and banked for takings cases (bank them within an administrative reliefpool). 11 0 12 II. BACKGROUND INFORMATION 2 13 0 14 Section 380.0552,F.S.,the Florida Keys Area protection and designation as area of critical state concern, 0 15 establishes the intent to "ensure that the population of the Florida Keys can be safely evacuated," ?: 16 [380.0552(2)(j), F.S.] and requires that amendments to each local government's comprehensive plan to 17 include "goals, objectives, and policies to protect public safety and welfare in the event of a natural 18 disaster by maintaining a hurricane evacuation clearance time for permanent residents of no more than 19 24 hours. The hurricane evacuation clearance time shall be determined by a hurricane evacuation study .2 20 conducted in accordance with a professionally accepted methodology and approved by the state land 21 planning agency" [380.0552(9)(a)2, F.S.]. 22 c, 23 In order to accomplish the hurricane evacuation requirements by the State, in 1992 the County adopted 24 a Permit Allocation System known as the Rate of Growth Ordinance (ROGO). 25 The purpose of this Amendment is to implement goals, cabctiv and policies of the Florida Kegs' Comprehensive Plan related to ;.)rcitectl4h of W residents, visitors and property in the County from natua nl 'Jisakfers, W specifically including hurricanes, by adopting a Dwelling Unit Allocation Ordinance limiting annual residential development in Monroe County to an amount and rate commensurate with the County's ability to maintain a reason- able and safe hurricane evacuation clearance time, as determined by policy decisions and recently completed studies. The present hurricane evacuation CD CD clearance time in Monroe County i:� unacceptably high. Based on a continua- tion of Monroe County s historic rate of growth, clearance time will contin- ue to increase. Therefore, consistent with its responsibility for protectingCL � the health and safety of its citizens, Monroe County must regulate the rate 0. of population growth commensurate with planned increases in evacuation capacity to ;prevent further unacceptable increases in hurricane evacuation G clearance time. Regulation of the rate of growth will also help to prevent I further deterioration of public facility :service levels, irreversible envi- 26 ronmental degradation, and potential land use conflicts. 27 ROGO adopted pursuant to Ordinance 016-1992, adopted 6/23/1992 28 29 The Rate of Growth Ordinance (ROGO)was implemented in order to provide for the safety of residents hI 30 in the event of a hurricane evacuation and to protect the significant natural resources of Monroe County, 31 as required by the State of Florida. The County originally reduced the annual permitting rate from 32 approximately 500+ units per year to 255 units per year. Later the State adjusted the annual allocation 33 (see Rule 28-20, F.A.C.) to 197 units per year. Each year's ROGO allocation of 197 new units is split 34 with a minimum of 71 units allocated for affordable housing and market rate allocations cannot exceed E 35 126 new residential units per year. BOCC Staff Report Page 2 of 40 File 42020-067 Packet Pg. 3318 Q.3.c I In 2012, the County entered into a Memorandum of Understanding (MOU) with the Department of 2 Economic Opportunity (DEO),the Division of Emergency Management(DEM), Marathon, Islamorada, � 3 Key West, Key Colony Beach and Layton. The MOU provided the distribution of allocations among the 4 local governments based upon a vacant land analysis (excerpt below). 5 WHEREAS, DEO and.the Local Governments recognize that significant vacant lands remain in > the Florida Keyes Monroe County with 8,758 vacant parcels(77%of total vacant lands),Marathon with 1,281 vacant parcels (II%), Islamorada with 1,109 vacant parcels (100/6), Ivey Colony Beach with 92 vacant parcels (0.81%), Key West with 84 vacant parcels (0.74°a6), and Layton. with 13 vacant parcels 6 (0.11%);and 7 G 8 In 2012, pursuant to Rule 28-20.140, F.A.C., DEM and DEO completed the hurricane evacuation 9 clearance time modeling task and found that with 10 years' worth of building permits, the Florida Keys 10 would be at a 24 hour evacuation clearance. Based upon the resulting 24 hour evacuation clearance, 11 DEO determined the remaining allocations for the Florida Keys (3,550 additional permits countywide, 0 12 1,970 of these permits would go to Monroe County - excerpt below). In March 2013, the Governor and CD 13 Cabinet, sitting as the State Administration Commission, approved the recommendation to allocate 10 C 14 years' worth of growth to the Florida Keys. V 15 WHEREAS, from. among the scenarios provides by DEO at the June S, 2012, Work Group T) meeting,Scenario M5 included the 2010 Census site-built units(43,760 units);the maximum number of � residential building permits for new construction for all Local Governments per year for 10 years (annually,County 197,Marathon 30, Islamorada 28,Key West .90,Key Colony Beach 6 and Layton 3); 16 1,248 mobile home units projected to convert to site-built.units,the exclusion of 870 dwelling units on the'Naval Air Station; as well as two (2) functional evacuation lanes from MM 108-126. Further, the �i Fork Group recommended Scenario M5 with the provision that the City of Key West would transfer � annually (by duly 13th) any remaining or unused (90 allocations) allocations to the other Local Q) Governments based upon the Local Governments' ratio of vacant land;and WHEREAS, following the Jane 8.2012. Work Group meeting,technical corrections were made Q) to the Census site built units revising that number to 43,71 Sand revising the Key West building permit allocation to 91, which corrections do not affect the hurricane evacuation clearance time for the 17 population of the Florida Keys.and 18 19 On April 13, 2016, the BOCC adopted the 2030 Comprehensive Plan and Land Development Code, 20 which included a ROGO allocation distribution through the year 2023,based on Rule 28-20.140,F.A.C., 21 and the Department of Economic Opportunity's completion of the hurricane evacuation clearance time 22 modeling task that found with 10 years' worth of building permits, the Florida Keys would be at a 24 E 23 hour evacuation clearance time (Phase 2 of the 48-hr phased/staged evacuation). 0i 24 0 25 On May 2, 2018, Governor Rick Scott issued a press release outlining an initiative to the Florida 0) 26 Department of Economic Opportunity ("DEO") for a Keys Workforce Housing Initiative (exhibit 1). 27 The proposed initiative would allow 1,300 additional Rate of Growth Ordinance (ROGO) allocations 28 throughout the Florida Keys (ROGOs or Building Permit Allocation Systems) for rental workforce 29 housing, with a condition that the rental occupants evacuate in the early phase (48-hour window) of a 30 hurricane evacuation. Any development receiving the units would be required to sign a rental N 31 management agreement indicating they would be required to assure the evacuation of all occupants of 32 the development. Under the initiative, each jurisdiction would be eligible to receive up to 300 of these 33 units. The press release specifically stated, "To meet the increased demand for workforce housing, the E BOCC Staff Report Page 3 of 40 File 42020-067 Packet Pg. 3319 Q.3.c I innovative Keys Workforce Housing Initiative will require new construction that participates to commit 2 to evacuating renters in the 48-hour window of evacuation." 3 c 4 On June 13, 2018, the Florida Administration Commission approved the Workforce Housing Initiative. 5 It was noted that Florida Keys' local governments that choose to participate in the initiative are to work 6 with DEO to amend their respective comprehensive plans to allow for additional building permits for 7 rental workforce housing with the condition of early evacuation. 8 9 The DEO issued the graphic below demonstrating the 2012 Hurricane Evacuation model results that 10 indicated there were still 6.5 hours of additional road capacity in Phase 1 of the hurricane evacuation 11 model. Pursuant to the 2030 Monroe County Comprehensive Plan Policies 101.2.4 and 215.1.4,Phase 1 0 12 of the staged/phased evacuation procedures include: 13 1. Approximately 48 hours in advance of tropical storm winds, a mandatory evacuation of non-residentsle 14 visitors, recreational vehicles (RVs), travel trailers, live-aboard vessels (transient and non-transient), 15 and military personnel from the Florida Keys shall be initiated. State parks and campgrounds should ?: 16 be closed at this time or sooner and entry into the Florida Keys by non-residents should be strictly CD 17 limited. 18 2. Approximately 36 hours in advance of tropical storm winds, a mandatory evacuation of mobile home 19 residents, special needs residents, and hospital and nursing home patients from the Keys shall be 20 initiated. T) 21 iiII ry77 U of STATE LAW�E�� E�EE� T '. M"TA VNEIM%U95Tpti€fNPIVAMIU REdUKEiWEd > � T } } t+ t + r t t t 4- EN7�� G — FERVID THERE IS s I�OF ADDITIONAL ROAD CAPAV 6 5 MUM'! CAPA#TY --- $1f � + - f� PROPOSAL � F ALLOWMHOUNMES a TO ANIU AEEDHEESTN EI AFFONABLE WORINICE G TO BE EOANANTDAT LNG 41 22 — OA�u�nr � 0 23 24 In support of the Housing Initiative at the June 13, 2018 Cabinet meeting,DEO staff made a presentation 25 stating that the Phase I evacuation (under the existing staged evacuation plan) can be accomplished in U) 26 17.5 hours, leaving additional capacity of 6.5 hours in Phase I. DEO stated, "The proposed Keys' 27 Workforce Housing Initiative can provide a path forward by allowing local government to grant new 9 28 building permit allocations for workforce rental properties that agree to evacuate 48 hours in advance of 29 hurricane landfall. DEO proposes to allow up 1,300 new building permit allocations for deed-restricted 30 workforce rental housing throughout Monroe County with an initial allocation of no more than 300 per 31 community." DEO concluded that the Housing Initiative"will not interfere with the 24-hour evacuation E 32 model and satisfies the statutory mandate to provide affordable housing." [quote from DOAH BOCC Staff Report Page 4 of 40 File 42020-067 Packet Pg. 3320 Q.3.c I recommended order on the challenges to the municipality Comprehensive Plan amendments to accept 2 the 300 Workforce Housing units.] 3 c 4 DEO provided County staff with preliminary draft language based on the minimum requirements 5 established in the initiative to use as a starting point (exhibit 2). DEO indicated the County should 6 consider the language provided and make modifications as necessary to ensure the Workforce Housing 7 Initiative is locally driven. 8 9 On January 30,2019,the BOCC considered options to acceptthe 300 units. Staff drafted three(3)options 10 for consideration by the BOCC: 11 1. Do not accept the 300 early evacuation affordable ROGOs and extend ROGO allocations through 0 12 2026; 0) 13 2. Accept the 300 early evacuation affordable ROGOs and extend ROGO allocations until 2026; and 0, 14 3. Accept the 300 early evacuation affordable ROGOs and do not extend ROGO beyond 2023. 2- 15 The BOCC discussed and did not agree to accept the 300 units offered on May 2, 2018, by Governor ?: 16 Rick Scott and DEO for the Keys Workforce Housing Initiative. 17 18 On January 22, 2020, the BOCC adopted Ord. 005-2020 to extend the remaining market rate ROGOs 19 out for an additional three (3)years from 2023 to 2026 within the Comprehensive Plan. ° 20 21 On January 22, 2020, the BOCC adopted Ord. 006-2020 to extend the remaining market rate ROGOs 22 out for an additional three (3)years from 2023 to 2026 within the Land Development Code. 23 0 24 On January 22,2020,the BOCC directed staff to prepare an agenda item to discuss and provide direction 25 on whether to direct staff to process Comprehensive Plan and Land Development Code amendments to: 26 1) move a portion of market-rate Rate Of Growth Ordinance (ROGO) units to the affordable housing 27 allocation pool and/or 2) accept the 300 Workforce Housing units offered by the Department of 28 Economic Opportunity (DEO)required to evacuate in Phase 1 of the Hurricane Evacuation model 29 0 le 30 On February 19, 2020, the BOCC discussed whether to direct staff to process a comprehensive plan and 31 land development code amendment to: 1) move a portion of the 378 remaining Market Rate - Rate of ?: 32 Growth Ordinance (ROGO) units through 2026 to the Affordable Housing allocation pool and/or 2) 33 accept the 300 Workforce Housing units offered by the Department of Economic Opportunity (DEO) 34 required to evacuate in Phase 1 of the hurricane evacuation model. The BOCC did not decide on the 35 potential shifting of market rate allocations to the affordable housing pool but did direct staff to start the 36 process to accept the 300 workforce housing units. 0 37 i 38 On July 15, 2020, during a discussion item on potentially shifting market rate allocations to the 39 affordable housing pool (agenda item I5),the BOCC provided further direction to staff on accepting the W 40 300 workforce housing early evacuation unit building permit allocations. The BOCC directed: accept 41 the 300 workforce housing early evacuation unit buildingpermit allocations to be used in exchange for v)i 42 existing affordable allocations at multifamily developments (for developers that agree to the early 43 evacuation restriction) and the affordable housing allocations returned to the County (returned in the 44 exchange) be set aside and banked for takings cases (bank them within an administrative reliefpool). 45 46 The BOCC's updated policy direction would limit the use of the 300 workforce housing early evacuation a 47 unit building permit allocations for only the exchange of affordable allocations and not for the use to 48 develop new (not approved or built)units. The BOCC described that the affordable allocations returned �t BOCC Staff Report Page 5 of 40 File 42020-067 Packet Pg. 3321 Q.3.c I to the County in exchange for workforce housing early evacuation unit allocations should be banked to 2 resolve takings cases. The County has been evaluating the potential of takings for many years, but in 3 particular since the 2012, when the hurricane evacuation clearance time modeling found that with 10 4 years' worth of building permits, the Florida Keys would be at a 24 hour evacuation clearance. The 5 County's most recent white paper on this issue is attached to this report as exhibit 3. 6 > 7 8 It should be noted that Cities of Islamorada(Ordinance 19-03), Marathon(Ordinance 2018-09), and Key 9 West(Ordinance 19-06)have amended their Comprehensive Plans to accept the 300 Workforce Housing C 10 units and those amendments were challenged. Hearings were held in December 2019, before Suzanne 11 Van Wyk, an Administrative Law Judge assigned by the Division of Administrative Hearings (DOAH). 0 12 On April 24, 2020, the DOAH Administrative Law Judge recommended approval of Marathon, Key 13 West, and Islamorada's respective ordinances accepting the 300 ROGOs under the Workforce Housing 0 14 Initiative (exhibit 4). 15 ?: 16 DEO remanded the case to DOAH on August 21, 2020, "for the limited purposes of issuing Findings of CD 17 Fact and Conclusions of Law on the issue of whether the plan amendments establish meaningful and 18 predictable standards." On September 25, 2020, DOAH issued a recommended order, again, 19 recommending approval of Marathon, Key West, and Islamorada's respective ordinances accepting the o 20 300 ROGOs under the Workforce Housing Initiative (included within exhibit 4) Currently, it is 21 unknown when the final order will be issued or if the final order may be challenged. The final outcome 22 of the City's amendments are not known at this point. The Workforce Housing amendments for the three 23 cities are attached to this report as exhibits 5, 6 and 7. 0 24 25 On December 23, 2020, DEO issued a final order upholding the Cities of Islamorada(Ordinance 19-03), > 26 Marathon (Ordinance 2018-09), and Key West (Ordinance 19-06) Comprehensive amendments. The 27 Petitioners have 30 days to appeal the final order(exhibit 9). The petitioners challenging the Key West, 28 Marathon, and Islamorada ordinances have appealed the decision to the Third DCA in Miami and W 29 secured a temporary stay of the agency's final order. 0 30 31 G 32 33 The need for additional affordable housing in the County has been well documented for many years. See 34 excerpts from some recent studies: 35 CL 36 0. 37 • Monroe County Workforce Housing Assessment Report-April 2015 G 38 htt ://www.monroecounty-fl. ov/DocumentCenter/View/9474/2015-MC-Workforce-Housing= Ui 39 Stakeholder-Assessment?bidld= 40 The v7orkforce 11cusing affordabilit, crisis 111 the Florldn Imes~s identified by the 2\1oraroe Coma <- Comir1 ssian in 2014 is real. "Cost-burdened" households pa-7 n1ore thin 30c'l of income of resit of mortgAge costs. ILI � 01 3, 51 O� or 16,849 of Mc-3nioe Co uiit-�- households P av more than 30"c, of IL1come for housing tz-llile state«-r le that figure is 3"'�. Icjre t1ltaLl 11t,If of'NIo foe Coivaty renters are cost burdened �,a 7�:.? of 14,00 04 41 while about 43"o of-Monroe Coulity homecjwliers tare cost l uiderred iS,499 of the 15,9'61,. 1 eCD V 42 43 44 • 2019 Rental Market Study by the OF Shimberg Center for Housing Studies: 45 http://flhousingdata.shimberg.ufl.edu/2019-rental-marlcet-studvv.pdf BOCC Staff Report Page 6 of 40 File 42020-067 Packet Pg. 3322 Q.3.c 1 y 0-30%AMI 30.01-60%ANTI 60.01-80%AMI Cost Cost Cost All Burdened All Burdened All Burdened Renters in (>40°o) Renters in (>40°5) Renters in (A411°5) (B Income Renters in %Cost Income Renters in %Cost Income Renters in /,o Cost U Category Category Burdened Category Category Burdened Category Category Burdened t8 Hardee 388 2,57 66940 723 457 63940 372, X X) > U Hendry 609 394 65940 887 512 58940 627 (X) (X) Holmes 291 195 67940 3,87 2,18 56940 206 59 29940 Jackson 1,32,0 614 47940 1,324 489 37940 612, X X) U Jefferson 350 163 47940 351 130 37940 162, X X) CD Lafayette 171 72 42940 143 53 379%0 64 (X) (X) M Levy 651 375 58940 814 376 46940 381 X X) Liberty 176 82 47940 176 65 37940 81 X X) U Madison 504 2,13 42940 422, 157 37940 187 (X) (X) U Monroe 2,697 1„667 6294e 3,214 2„573 80°4e 1,714 1,058 62940 L. Nassau 1,416 731 529%0 2,,131 884 419%0 1,198 X X) Okeechobee 62,9 407 65940 916 529 58940 647 X X) � P'utitain 1,52,8 1„013 66940 1,689 902 53940 892, 195 22,9;o U Suwannee 1,22,5 517 42940 1,024 380 37940 455 (X) (X) Taylor 516 2,18 42940 431 160 37940 192, X X) Union 210 121 58940 262, 121 46940 123 X X) Wakulla 600 2,79 47940 601 222 37940 278 X X) Walton 1,396 936 67940 1,858 1047 56940 990 2,84 29940 Washington 349 2,34 67940 465 2,62 56940 248 71 29940 Small Total 20,955 111624 551/10 24,952 121745 511/10 12,900 31008 23�`a N State Total 496$56 345,482 70'/o 661 866 450.123 68'1/10 370,317 120.701 33°`a U Notes:(X)indicates results that are suppressed because estimates are not statist xcally significantly different from,zero.Where possible,missing values are included in data aggregated to a higher level,such as state totals of data from,county-size categories Therefore,totals for columns and rows with missing CJ values will be higher than the sum,of the numeric values that do appear- CJ Sources U_S-Census Bureau,2013-2017 5-Year Antericar,,Community Survey-,University of Florida Bureau of Economic and Business Research,2017 2 population Projections UI 3 80.01-120 AMI 12D.g1-14g1 AMI Cost Burdened U All Renters in Cost Burdened All Renters in (740 io) U Income (740 )Renters %Cost Income Renters in /6 Cost U Category in Category Burdened Category Category Burdened Jefferson 237 (X) (X) 45 (X) (X) Lafayette 100 X) X) X) X) Levy 731 X) X) 2,12 X) X) CD Liberty 119 (X) (X) 23 (X) (X) M Madison 294 (X) (X) (X) (X) Monroe 2,493 748 300,4e 870 103 120,4e M Nassau 1,189 X) X) X) X) CL Okeechobee 769 X) X) X) X) t. Putnam 1,260 (X) (X) 403 (X) (X) U Suwannee 713 X) X) X) X) (J Taylor 300 X) X) X) X) Union 235 (X) (X) 68 (X) (X) 0. Wakulla 405 (X) (X) 77 (X) (X) W Walton 1,487 X) X) 583 X) X) Washington 372, (X) X) 146 X) X) Small Total 18,455 748 4°`a 51455 [X} [X} State Total 542,154 60,762 111/10 1781747 71647 4/o h Notes:(K)indicates results that are suppresser)because estimates are not statisucally significantly different from zero..Where possible,missing values areCD included in data aggregated to a higher level,such as state totals of data from,county-size categories Therefore,totals for column and rows with missing CD values will be higher than the sum,of the numenc values that do appear CN - CD Sources U_S-Census Bureau_,2013-2017 5-Year Antericar,,Community Survey-,University of Florida Bureau of Economic and Business Research,2017 N 4 Population Projections 5 E 6 U BOCC Staff Report Page 7 of 40 File 42020-067 Packet Pg. 3323 Q.3.c 1 • 2018 ALICE Study in Florida by the United Way: 2 https://www.uwof.org/sites/uwof org/files/2018%20FL%20ALICE%20REPORT%20AND%2000%20 3 PAGES.pdf Rfj 2015 Point-In-Time Data > Population 79,077 - Number of Households 30,318 Median Household Income: $65,717 (state average: $50,860) Unemployment Pate: 3.3% {state average: 6.0%) ALICE Households: 30%(state average:32`) - Households in Poverty: 12%(state average: 1'4%) 4 G 5 6 The Florida Keys face the quadruple impact of high land values, land limited by geographic and 0. le 7 environmental features, housing supply limited by controlled growth(the permit allocation systems)and 8 a tourism economy with a prevalence of lower paying service-sector employment. ?: 9CD To r r s`;t r n its+`Eli!u e to it hm $2,.4 Billion Four out of every 10 M o,n,ro,e County warkers owes his/herjob to tourism N 2018 Monroe GOUnty TOLWISM Spending activity. Tourism was responsible f6r 4 4% of all Monroe County jobs. C The eyerage woge of both full and dart-tune workers supported b ca ent €n MonroeCOLMIty tourism was $35,448 in 20,18. $1.8 Billion I jobs supported directily4y tourism were responsible f6r 3 % of all > Total Economic Impact orif'offCounty rivote sectorjobs. 10 (Direct Indirect,&lnduced) CIO 11 2020 Monroe County Tourist Development Council 12 2 13 The housing affordability problem of the Florida Keys has widespread economic impacts, including a 4- 14 growing recognition of the important link between an adequate affordable housing supply and economic 0 15 growth. Many of the business sectors in the Florida Keys, including professional services, retail trade, 16 tourism and health care, find it increasingly difficult to attract and maintain workers. Affordable housing MI 17 has posed and continues to pose a major challenge for local governments,public agencies and the private 18 sector in the Florida Keys. The service and retail industries generate high demand for affordable housing CL 19 from low income earning workers,while the limited land area and linear geography of the Keys severely E 20 limit the potential supply and locations of housing. Furthermore, unlike other areas, working families U 21 cannot find affordable housing nearby and commute. As a result, a severe imbalance exists between l 22 supply and demand, resulting in escalating housing prices. This imbalance is worsened by a number of 23 other contributing factors, including: 24 • strong demand for second homes which reduces the supply of housing for permanent residents; 25 • conversion of permanent housing for transient use as vacation rentals which reduces the housing U.I 26 supply and increases affordable housing demand; 27 • high construction costs due to transportation costs of goods, limited labor market, and caprock 28 conditions; 29 • higher costs due to regulations and insurance (building standards are among the most rigorous in 30 the State); E BOCC Staff Report Page 8 of 40 File 42020-067 Packet Pg. 3324 Q.3.c I • limited permit allocations due to hurricane evacuation standards, habitat protection and water 2 quality objectives; and 3 • limited non-profit and private sector capacity for funding assistance and housing production. 4 5 The need to protect and preserve an adequate inventory of affordable/workforce accessible housing is a 6 continual as well as a growing challenge in the Florida Keys,particularly after the impacts of Hurricane 7 Irma. On September 10, 2017,Hurricane Irma made landfall near Cudjoe Key as a Category 4 Hurricane 8 with maximum sustained winds of 130 mph. Hurricane Irma caused significant damage throughout the 9 Florida Keys: 10 PRELIMINARY DAMAGE ASSESSMENT(SUMMARY W PARK INFO)-THRU 1L/26117 0 KEYLARGO 2581 3992 326 75 MANAMANEEM VILLAGE OF ISLAMORADA (M 468 427 47 FIESTA KEY 0 0 2S7 CRAIG KEY 0 1 0 0 0 CITY CIF LAY ON 4 160 1s CD LONG KEY 304 Eli 1+4 0 CD toJ1`404 BEY 0 13 4 W DUCK KEY 292 tG2 83 7 CITY OF KEY COLONY BEACH 0 1462 E88 20� }},ti tilttislti0 40107 $29 1402 QH IC)KEY 0 0 0 397 N BAH[A HONDA KEY 6 i 9 6 0 � BIG PINE KEY 264 1,518 663 299 LITTLE TORCR KEY 389 go 25 M IDDLE TORCH KEY 3 0 12 0 CJ BIG TORCH KEY 11 4 37 1 RAMROD KEY 31 20 493 13 SUMMER LAND KEY 1 TOG Z10 10 � CUDJOE KEY 1-34 914 624 52 > SUGARLOAF KEY 115 207 101 � UPPER SUGARLOAF KEY 175 0 0 EI � LOWER SUGARLOAF KEY 6 1k 110 0 0) SADDLECIUNCH KEYS. 02, 0 0 0 W SHARK KEY 0 : 39 ; 0 0 2- 64G C:CIPPITT KEY 122 538 63 4 GEIGER KEY 41 25� 0 7 ROCI{LAN D KEY 1 fib 31 0 G Ls EY HAVEN R �iW 1 0 TCD OCK ISLAND WS; 5,65 12 1� CD 0 11E255 282 3 I 11 Elm M 12 c. 0. 13 14 is 15 DEO and DEM will run an evacuation model after the completion of the 2020 Census, using updated 0I 16 data and analysis. Staff anticipates this process may take two to three years after the 2020 Census, and 17 will require a new MOU with DEO, DEM, Marathon, Islamorada, Key West, Key Colony Beach and 18 Layton. This will be the earliest timeframe that the County and other jurisdictions will be able to evaluate 19 the results based on any population changes, occupancy changes and other factors in the inputs and 20 assumptions utilized within the hurricane modeling. 21 N 22 23 On March 1, 2020, the Governor of Florida issued Executive Order Number 20-51 directing the State 24 Health Officer and Surgeon General to declare a Public Health Emergency due to the discovery of E 25 COVID-19/novel Coronavirus in Florida. On March 9, 2020, the Governor of Florida issued Executive BOCC Staff Report Page 9 of 40 File 42020-067 Packet Pg. 3325 Q.3.c I Order Number 20-52, declaring a State of Emergency for the Stale of Florida related to COVID-19/novel 2 Coronavirus. The Monroe County Mayor declared a State of Local Emergency on March 15, 2020, due 3 to COVID-19/novel Coronavirus, to"initiate protective measures necessary to ensure the health, safety, 4 and welfare of residents and visitors." 5 6 Due to the public health emergency, the Governor has issued numerous executive orders to help slow 7 the spread of the virus, including suspending the sale of alcoholic beverages, suspending on-premise ?� 8 food consumption at restaurants and food establishments, prohibiting any medically unnecessary, non- 9 urgent or non-emergency procedure or surgery,limiting occupancy to 50%at restaurants,beach closures, 10 closure of gyms, suspension of vacation rental operations, and safer at home orders (limit movements 11 and personal interactions outside of the home to only those necessary to obtain or provide essential 0 12 services or conduct essential activities), etc. Monroe County was also temporarily closed to visitors to 13 allow time to prepare for a rise in cases and time for hospitals to adequately prepare with staffing, 0 14 resources, testing, and facilities. 15 16 The economic impacts of COVID-19/novel Coronavirus have been significant globally, to Florida and 17 specifically to Monroe County. The economic impacts are anticipated to increase the demand for the 18 availability of housing opportunities for lower income groups. See excerpt from the DEO Bureau of 19 Workforce Statistics and Economic Research April Employment Figures: ° 20 Local Area Uner pl oym ent Statistics Not Sea sonaIIy Adjusted) CJ CJ * In .April 2020, Lafayette County had the state's lowest unemployment rate (5.5 percent), followed by Liberty County(7.0 percent),Glades County(17.2 percent), and DeSo o County(7e4 percent). * Osceola County had the highest unemployment rate, (20.3 percent) In Florida in April 2020,followed by Monroe. 21 County(17,5 percent), Grange County(16 5 percent) and Citrus County(1.5.8 percent), 22 STATE OF FLORIDA 0 LOCAL AREA UNEMPLOYMENT STATISTICS BY COUNTY (NOT SEASONALLY ADJUSTED) APRIL 2020 MARCH 2020 APRIL 2019 LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLOY- UNEMPLOYMENT COUNTY FORCE. MENT LEVEL RATE FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE Manatee County 161,474 139,654 21,820 13.6% 182,283 174,524 7,759 4.3% 17&,942 173,808 5,134 2.9% Marion County [2:9,422 113,768 16,654 121% I 960 131,682 7,278 52% 135,997 131,0383 4,914 3.610. Martin County 68,784 60,572 8,2.t2 11.9% 75,312 72,151 3,161 42% 73,573 71,430 2,143 2.9 fo CL Miami-Dade Coi 1,215.918 1071,624 t44,294 119% t,317,241 1,267,181 50,066 39% 1,383,594 1349,404 34,190 25% 1 23 Monroe County 46,816 38,609 8,207 17 5% 48,214 46,881 1,333 2&% 46,585 45;680 905 1 9% 24 i 25 See excerpt from the DEO Bureau of Workforce Statistics and Economic Research Il/[cly Employment 0 26 Figures: � 27 (13 STATE OF FLORIDA LOCAL AREA UNEMPLOYMENT STATISTICS BY COUNTY (NOT SEASONALLY ADJUSTED) MAY 2020 APRIL 2020 MAY 2019 LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLOY UNEMPLOYMENT CV COUNTY FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE Q Marlon County 132,648 117,172 15,474 117% 129,001 113,464 15,537 12.0% 137,269 132,133 5,136 37% Martin County 70,467 62,468 7,999 11.4% 68,543 60,432 8,111 11.8°6 74,285 72.052 2,233 3.0% Miami-Dade County 1,212,560 1,075,744 '136,825 11.3! 1,213,833 1,070,388 143,445 11.8% 1,374,809 1,341,271 33,538 2.4% 28 Monroe County 49,703 40,913 8,790 17 7% 49,467 39 9u6 8,561 177% 46 864 45,935 929 2 f 29 css BOCC Staff Report Page 10 of 40 File 42020-067 Packet Pg. 3326 Q.3.c I See excerpt from the DEO Bureau of Workforce Statistics and Economic Research ,Tune Employment 2 Figures: STATE OF FLORIDA LOCAL AREA UNEMPLOYMENT STATISTICS BY COUNTY G (NOT SEASONALLY ADJUSTED) ¢' JUNE 2020 MAY 2020 JUNE.2019 LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLOY- UNEMPLOYMENT COUNTY FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE ManonCounty 133.949 122..557 11,392 8.5% 132..803 115,618 14,185 10.7% 137,956 132,220 6,736 42% rVartin Counts 70,9413 65,243 5,703 8.0%6 69,955 62,659 7,296 10 4% 74,044 71,503 2,541 34% MianiiDadeCounty 1,269,957 1,124,302 145,655 11.5% 1,220,976 1,074,907 146,069 12:0% 1,369..,579 1,335,085 34,494 2.5% IU 3 Monroe County 47,377 42,674 4.703 9.9% 48,916 40,866 8,050 16.5( 46,480 45,460 1,020 2.2% 1 CD 4 5 See excerpt from the DEO Bureau of Workforce Statistics and Economic Research A7.gnist Employment e 6 Figures: STATE OF FLORIDA 4- LOCAL AREA UNEMPLOYMENT STATISTICS BY COUNTY (NOT SEASONALLY ADJUSTED) G AUGUST 2020 JULY 2020 AUGUST2019 LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLOY- UNEMPLOYMENT LABOR. EMPLOY- UNEMPLOYMENT � COUNTY FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE manaiee County 173 897 182,895 10,802 6211, 172 752 156,556 16, H 4 41, 17B,333 172,279 6 054 3 4% MarionCoL+11ty 139263 130,482 8,781 8.3% 137,501 124,693 12,8178 93% 137,952 132,347 5,605 4.1% mariin County 72,127 G8,150 3,977 5.51 70,579 64,446 6,133 8.7% 74,133 71,626 2,507 3 4% O Miami-Dade Countu 1,351,8'1D 1,242,54' 109,255 8 1 l 'V,339,-V53 1;145,387 193,7EC 14.5% 1,377,292 'V,34'V,9Pa 31033 2.6% fA 7 Monroe County 48,715 45,408 3,307 6.8L 48,117 43,283 4,834 16.0% 4C,583 45,583 1,000 2.1% 8 9 ca 10 Staff is proposing a corresponding amendment to the Land Development Code. The subject of this staff ca 11 report is the proposed amendment to the Comprehensive Plan. 12 > 13 14 Community Meeting and Public Participation 15 In accordance with LDC Section 102-159(b)(3), a Community Meeting was held on July 28, 2020 to 16 provide for public input. There were 11 attendees inclusive of four County staff members. Seven 4- 17 members of the public provided comments and, in general, the comments expressed opposition and 0 18 concern for the proposed amendment, as summarized below: 19 • Not in support of accepting the 300 units 20 • Concern with public safety related to hurricane evacuation 21 • Undermines current restrictions on growth �- 22 • Accepting additional units nullifies the whole growth management system E 23 • Concern with rapid intensification of storms; we do not have anything to deal with a short notice U 24 hurricane 0 25 • Not supported by any data or studies and undermines ROGO system for the County 26 • Bad policy and contravenes state statutes to `award' 1,300 ROGOs for use by permanent 4-- 27 residents (workforce) by estimating capacity in tourist phase of evacuation and assuming the v) 28 workforce can and will evacuate early and often 29 • Legal challenge to city amendments that have accepted units is still ongoing 30 • County will end up in a lawsuit too 31 • Creating this new pool will create more takings cases 32 • Define onsite property manager and true emergency workers; ensure accessibility to employment 33 centers; and ensure banked allocations will be used for takings cases only 34 • Concern about the County taking more units from the municipalities e( BOCC Staff Report Page 11 of 40 File 42020-067 Packet Pg. 3327 Q.3.c I N 2 Development Review Committee and Public Input 3 The Development Review Committee considered the proposed amendment at a regular meeting on 4 August 25, 2020 and received public input, as summarized below: 5 • Not in support of accepting the 300 units 6 • Requesting county conduct additional analysis of a successful takings claim and an analysis of > 7 the Property Assessor's data base of vacant lots in view of the legal issues 8 • Not allowing the exchange of units with the cities (interlocal agreements to transfer units) a 9 • Concern with rapid intensification of storms;just saw 2 recent storms rapidly intensify 10 • Allocations exchanged should retain their previous income category 11 • Require onsite property manager 12 • Object to the words "To the greatest extent practicable" 2 13 4- 14 Plannin2 Commission and Public Input G 15 The Planning Commission considered the proposed amendment at a regular meeting on October 28, 16 provided for public input and recommended approval of the proposed amendments to the Monroe �? 17 County 2030 Comprehensive Plan amending the Future Land Use Element and the Housing Element to 18 establish a new building permit allocation category to accept and award 300 workforce housing early 19 evacuation unit building permit allocations pursuant to the Workforce-Affordable Housing Initiative T 20 (Workforce Initiative), with the criteria and provisions specified in the staff report and with the 21 following edits in italics: 22 • modify Policy 101.2.2 to state: These allocations are in addition to the maximum allocations 23 identified in Rules 28-20, F.A.C., and shall be required to evacuate in Phase I of the 48-hr i 24 evacuation of a pending major hurricane. 25 • modify Policy 101.3.10 to state: Notwithstanding any other provision of the Plan, except the last 26 sentence of this Policv 101.3.10, building_ROGO allocations utilized for affordable housing 27 projects may be pooled and transferred between ROGO sub-areas, excluding the Big Pine/No 28 Name Keys ROGO subarea, and between local government jurisdictions within the Florida Keys 29 Area of Critical State Concern (ACSC). Any such transfer of affordable housing allocations 30 between local government jurisdictions must be accomplished through an interlocal agreement G 31 between the sending and receiving local governments. Interlocal agreements that involve 32 assigning the County's affordable housing (not including affordable housing allocations banked 33 for takings cases) allocations to existing dwelliLg units within a municipality with a requirement 34 that the associated market rate ROGO/BPAS exemptions be transferred into the unincorporated c. 35 County as an exchange for the affordable housing allocations transferred to the municipality, shall 36 be accomplished through a minor conditional use permit approval and shall be subject to the Ui 37 receiver site criteria in Policy 101.6.8 and may be transferred to any subarea within the 0 38 unincorporated County. In no event shall the County L) pool and transfer workforce housing 39 early evacuation unit allocations between ROGO sub-areas, (2) transfer workforce housing early ; 40 evacuation unit allocations to another government jurisdiction, L) receive workforce housing 41 early evacuation unit building allocations from another,government jurisdiction, or (4) transfer r�� 42 affordable housing ROGO allocations received by the County in exchange for workforce housing 43 early evacuation unit allocations to another,government jurisdiction. 44 • modify Policy 101.3.12 (c)(4) to state: The covenants shall require rental agreements which 45 contain a separate disclosure requiring rental occupants to acknowledge the existing restrictive 46 covenant on the unit requiring evacuation in Phase I of the 48-hr evacuation and that failure to E BOCC Staff Report Page 12 of 40 File 42020-067 Packet Pg. 3328 Q.3.c I adhere to the Phase 1 evacuation requirement could result in severe penalties, including eviction, 2 to the occupant. 3 4 The Planning Commission included in their motion to recommend approval of the amendments,that the 5 Planning Commission does not recommend approval of the general acceptance of the 300 workforce 6 housing early evacuation unit building permit allocations, without the criteria and provisions included 7 in the staff report and the recommended edits described above. 8 9 Previous County Action (exhibit 8) 10 On May 2, 2018, Governor Rick Scott issued a press release outlining an initiative to the Florida 11 Department of Economic Opportunity("DEO")for a Keys Workforce Housing Initiative,allowing 1,300 0 12 additional Rate of Growth Ordinance (ROGO) allocations throughout the Florida Keys (ROGOs or 13 Building Permit Allocation Systems). Commissioner Rice calls a special meeting for May 10, 2018 at 0 le 14 11 a.m. in Marathon to provide the Commission and the public an opportunity to discuss the proposal 15 prior to the Cabinet meeting (May 15, 2018). At the May 10, 2018 Special BOCC Meeting, the BOCC ?: 16 directed County staff to discuss concerns identified with DEO and provide an update to the BOCC at the 17 next meeting. 18 V 19 On May 16, 2018, the County Attorney provided the BOCC a report on the Governor's proposal for 20 1,300 additional ROGO allocations following her meeting with DEO and state level staff. He advised 21 the Board that they have a cabinet meeting scheduled for June 13, 2018 to discuss the allocations further. 22 t� 23 On May 16, 2018, the BOCC directed County staff to present the Board's questions and concerns 24 regarding the Workforce Initiative at the meeting with the Cabinet on June 13, 2018. 25 > 26 On June 6, 2018, the County sends a letter to DEO providing County comments and questions on the 27 Keys Workforce Housing Initiative. 28 cu 2 29 On June 13, 2018, the Florida Administration Commission approved the Workforce Housing Initiative. 0 le 30 Florida Keys'local governments that choose toparticipate in the initiative willworkwith DEO to amend 31 their respective comprehensive plans to allow for additional building permits for rental workforce ?: CD 32 housing with the condition of early evacuation. 33 34 On August 15, 2018, the BOCC directed County staff to prepare a discussion and direction itemCL 35 regarding the Keys Workforce Housing Initiative for the September 19, 2018 regular BOCC meeting. 0 Nir. Shillinger addressed the Board concerning the 1,300 allocations that the Governor G 36 [h—as .adc available. After discussion, it :was decided to place a discussion item on the September cai 37 agimda. 38 39 On September 19, 2018, the BOCC directed County staff to draft proposed policy alternatives to the 40 State's initiative that address several concerns raised related to the enforceability of the evacuation hI 41 provisions. Additionally, the BOCC asked the County Attorney to research whether the state's Florida 42 Keys Workforce Housing Initiative,which, if implemented,would create a precedent that would require 43 the state to award as many as 10,000 additional units in the future vs. the liability of not accepting the 44 units under the State's initiative. During the discussion, the County Attorney stated accepting the units 45 means fewer takings cases (less potential for cases). E BOCC Staff Report Page 13 of 40 File 42020-067 Packet Pg. 3329 Q.3.c 13 Emily Schomper, Acting Sr. Director of Planning&Environmental Resources,addressed the Board regarding the initiative by the State of Florida Administrative Commission to be administered through the Department of Economic Opportunity(DEO)for the Keys Workforce Housing Initiative to allow up to 1,300 additional affordable housing allocations(up to 300 for e unincorporated Monroe.County)in Rate of Growth Ordinance Allocations(ROGO) for rental workforce housing,with a condition that developments that receive these ROGO allocations have a rental management agreement in place that requires rental occupants to evacuate in the early phase(48 hours in advance of tropical storm winds reaching the shore of the Florida Keys) 1 of hurricane evacuation. Currently transient units (hotels)and mobile home occupants are required to evacuate in the early phase of evacuation. Bob Shillinger, County. Attorney; and Christine Hurley, Assistant County Administrator,addressed the Board. The following individuals addressed the Board: D.A. Aldridge,representing least Stand; Robby Majeska,and G Dottie Moses. After discussion,motion was made by Commissioner-Carruthers and seconded by Commissioner Murphy directing staff to develop a written sample policy- staff will rncct with DEO, and then staff will come back to the Board to explain,not only answers to the questions here today,but what could be accepted by the DEO before starting the process of community meetings,DRC and Planning Commission; and additional legal input regarding how to avoid 2 6,000 to 8,000 takings cases. Motion carried unanimously. W 3 4 On January 30,2019,the BOCC considered options to accept the 300 units. Staff drafted three(3)options 5 for consideration by the BOCC: 6 1. Do not accept the 300 early evacuation affordable ROGOs and extend ROGO allocations through 2026; 7 2. Accept the 300 early evacuation affordable ROGOs and extend ROGO allocations until 2026; and 8 3. Accept the 300 early evacuation affordable ROGOs and do not extend ROGO beyond 2023. B2 Ms. Schenrper,Ms. Hurley and Mr. Slr.illinger addressed the Board concerning direction ca regarding the initiative by the State of Florida Administrative Commission to be administered � through the Departrnent of Economic Opportunity for the Keys Workforce Housing Initiative to allow up to 1300 additional affordable housing allocations (up to 300 for unincorporated ar Monroe County) in Rate of Growth Ordinance Allocations(ROGO)for rental workforce housing, with a condition that developments that receive these R060 allocations have a rental � management agreement in place that requires rental occupants to evacuate in the early phase(48 2 hours in advance of tropical storm winds reaching the shore of the Florida Keys) of a hurricane evacuation, Currently transient units(hotels) and mobile ]ionic occupants are required to evacuate in the early phase of evacuation. The following individuals addressed the G Board-,Joyce Newman,representing Last Stand; Alicia Putney,Captain Ed Davidson, representing Florida Keys Citizens Coalition,and Ann Olsen, representing Friends of the Lower i 9 Keys. Board took no official action. 10 11 On January 30, 2019, the BOCC discussed and provided direction regarding existing and potential E 12 actions, policies and programs to address exhaustion of ROGO allocations and build out of the Florida Ui 13 Keys as of 2023 with a substantial number of platted lots remaining. The discussion involved existing 0 14 and potential actions, policies and programs; as well as ideas for policy changes to alleviate potential 15 takings liability, if and when the DEO is no longer able to award ROGO allocations to the County. ; B3 The following staff addressed the Board concerning direction regarding existing and v) potential actions, policies and programs to address exhaustion of ROGO allocations and build out of the Florida Keys as of 2023 with a substantial number of platted lots remaining: Ms. Schenrper,Mr. Shillinge r,Ms. Hurley,Derek Howard, Assistant County Attorney; Mike CD Roberts, Sr. Administrator, Environmental Resources; Peter Morris, Assistant County Attorney; and Cynthia Guerra, Sr. Biologist The following individuals addressed the.Board: Alicia Putney, Stuart Schaffer, representing Sugarloaf Shores and Cudjoc Gardens Homeowner's Association; 16 and Bill Hunter. Board took no official action. � BOCC Staff Report Page 14 of 40 File 42020-067 Packet Pg. 3330 I N 2 On January 22, 2020, the BOCC adopted Ord. 005-2020 to extend the remaining market rate ROGOs 3 out for an additional three (3)years from 2023 to 2026. 4 5 On January 22,2020,the BOCC directed staff to prepare an agenda item to discuss and provide direction 6 on whether to direct staff to process Comprehensive Plan and Land Development Code amendments to: 7 1) move a portion of market-rate Rate Of Growth Ordinance (ROGO) units to the affordable housing ?� 8 allocation pool and/or 2) accept the 300 Workforce Housing units offered by the Department of 9 Economic Opportunity (DEO)required to evacuate in Phase 1 of the Hurricane Evacuation model 10 11 On February 19, 2020, the BOCC discussed whether to direct staff to process a comprehensive plan and 0 12 land development code amendment to: 1) move a portion of the 378 remaining Market Rate - Rate of 13 Growth Ordinance (ROGO) units through 2026 to the Affordable Housing allocation pool and/or 2) 0 14 accept the 300 Workforce Housing units offered by the Department of Economic Opportunity (DEO) 2- 15 required to evacuate in Phase 1 of the hurricane evacuation model. The BOCC did not decide on the ?: CD 16 potential shifting of market rate allocations to the affordable housing pool but did direct staff to start the 17 process to accept the 300 workforce housing units. er 17 s. 5claernpe;r gave power Point Presentation on.they discu%sioa and direction on whether to direct staff to process a Cemprelrerrsive plan and Land Development Code .2 arncta(lrtre nt tea 1)move a portion of they 378 rerrrainirag market Late bate of G1rowdi Ordinmice � unils tlrrowdi 2026 to the Affordable Housing Allocation Pool; and/or, 2)accept the 300 workforce housing traits offered la_v the Department o-f F:ccniorrric Opportunity reclerired u) evacuate in lalrase l of the I uffieane evacuation rnMel. Mr. Sh111inger, Lisa Tennyson, Legislative Affaits & Grants Acquisition Director;and Ms. ]--Harley addressed the Board. The i following individuals addressed the Board. D.A. Aldridge,repre:sertt.ing Last Stared; Jan E.del�tein,represerrtirrg Cudjoe Gardens 1'r per-tV Owner',,A scyciationl Stuart Schaffer, � r°epreseritirr;g Sugarloaf Siiores Property Owner's Association.„ turd .Dotti Teases, After discussion motion was inade by Ccrnimissioner Coldi on, and seconded by Coin missioner"Cates � to start thr process to{tccep9 they.300 workforce lttarrsiniv trrri.ts. Mall call vote, was taken wit11 the 2 ftrflowing reqults° G Corrrtrrissioncr Cates Yeti Coin Injs Sion er Coldirort fires Cornmi sierrter Murphy No r9i Corruni,56oaerRice fires Mayor Carruthers No CL 0. Motion carried_ G 18 i 19 0 0. 20 On April 15, 2020,the BOCC adopted Resolution 100-2020 providing for a temporary suspension of the 21 expiration of ROGO and NROGO allocation awards, issuance of allocation award letters, deferring ; 22 administrative relief application deadlines, and deferring the processing of new and existing ROGO and 23 NROGO applications and Planning Commission review due to the impacts of COVID-19/novels 24 Coronavirus. 25 26 On July 15, 2020, during a discussion item on potentially shifting market rate allocations to the ear 27 affordable housing pool (agenda item I5),the BOCC provided further direction to staff on accepting the 28 300 workforce housing early evacuation unit building permit allocations. The BOCC directed: accept E 29 the 300 workforce housing early evacuation unit buildingpermit allocations to be used in exchange for BOCC Staff Report Page 15 of 40 File 42020-067 Packet Pg. 3331 Q.3.c I existing affordable allocations at multifamily developments (for developers that agree to the early 2 evacuation restriction) and the affordable housing allocations returned to the County (returned in the 3 exchange) be set aside and banked for takings cases (bank them within an administrative reliefpool). 4 5 III. PROPOSED COMPREHENSIVE PLAN TEXT AMENDMENTS 6 > 7 Proposed Amendment(deletions are s ` ke 4te,-ey 4; additions are shown in underlined) 8 9 Objective 101.2 10 As mandated by the State of Florida,pursuant to Section 380.0552,F.S. and Rule 28-20.140,F.A.C., 11 and to maintain the public health, safety, and welfare, Monroe County shall maintain a maximum 12 hurricane evacuation clearance time of 24 hours and will coordinate with the State Land Planning 13 Agency relative to the 2012 Memorandum of Understanding that has been adopted between the 0 14 County and all the municipalities and the State agencies. 0 15 ?: 16 Policy 101.2.1 17 Monroe County shall maintain a memorandum of understanding with the State Land Planning 18 Agency, Division of Emergency Management, Marathon, Islamorada, Key West, Key Colony 19 Beach, and Layton to stipulate, based on professionally acceptable data and analysis, the input .2 20 variables and assumptions, including regional considerations, for utilizing the Florida Division 21 of Emergency Management's (DEM) Transportation Interface for Modeling Evacuations 22 ("TIME") Model to accurately depict evacuation clearance times for the population of the 23 Florida Keys. 0 24 25 Policy 101.2.2 26 Monroe County shall coordinate with all the municipalities, the State Land Planning Agency 27 and Division of Emergency Management to update the variables and assumptions for the 28 evacuation clearance time modeling and analyses of the build-out capacity of the Florida Keys 29 Area of Critical State Concern based upon the release of the decennial Census data. Pursuant to 0 30 the 2012 completed hurricane evacuation clearance time modeling by the State Land Planning 2- 31 Agency, which incorporates the 2010 Census data, the County may allocate 10 years' worth of ?: 32 growth(197 x 10= 1,970 allocations, 197 annual ROGO rate based on Rule 28-20.140, F.A.C.) 33 through the year 2023,while maintaining an evacuation clearance time of 24 hours. The County 34 w-%4 adoptecj a slower rate of annual allocations for market rate development to extend the E 35 allocation timeframe to 2026 .3 without exceeding the total of 1,970 allocations (see Policy 0. 36 101.3.2). The County shall reevaluate the annual ROGO allocation rate based on: 1) statutory 0 37 changes for hurricane evacuation clearance time requirement standards; 2) new hurricane 38 evacuation modeling by the State Land Planning Agency and Division of Emergency 0. 0 39 Management; and 3) a new or revised memorandum of understanding with the State Land 40 Planning Agency,Division of Emergency Management,Marathon, Islamorada,Key West,Key 41 Colony Beach and Layton (see Policy 101.2.1). v)i 42 43 c 1witllswnding the fore�t�in� and grsnant to Policies 101 3 2. 101,33 and l.01..3 1.2_A.Monroe 44 County shall establish a new allocation category to accept anti award 300 workforce housinL, CD 45 early evacnation Unit bnilclin Pegnit...allocations...pjjjs � t.j: 2. the 'Aorkforce affordable; 46 F ousin , 1nitiativc �Policv IQ 3 12m" orkforce nitiamtive) These allocations allocamtions are in addition to m_ m m m BOCC Staff Report Page 16 of 40 File 42020-067 Packet Pg. 3332 the maximurn allocations identified in R I s 2..-20., F,A.,C,., and shall be re uired to evacuee ....................................................................................................................................................................................11...e. � 8 �q_ ....................................................................................................... 2 in Phase I of 48-fir evacuation_of'a pending i�-n,�(.)r�hurric,�ine, -- - - - - - - - - - - - - - 3 .2 4 Policy 101.2.3 5 The County will consider capital improvements based upon the need for improved hurricane 6 evacuation clearance times. The County will coordinate with the FDOT,the state agency which > 7 maintains U.S.1, to ensure transportation projects that improve clearance times are prioritized. i� 8 9 Policy 101.2.4 10 In the event of a pending major hurricane (Category 3-5)Monroe County shall implement the 11 following staged/phased evacuation procedures to achieve and maintain an overall 24-hour 0 12 hurricane evacuation clearance time for the resident population. 2 13 1. Approximately 48 hours in advance of tropical storm winds, a mandatory evacuation of non- 0 le 4- 14 residents,visitors,recreational vehicles (RVs),travel trailers, live-aboard vessels (transient 2- 0 15 and non-transient), affd military personnel and units a1?_p1L1 ��J..�qfld deed restricted as ?: .................. ............................................................................................ 16 workforce housi evacuation units CD - -- - - --m_1_e_11rlY__ - _ _ __ from the Florida Keys shall be initiated. State ---------- 17 parks and campgrounds should be closed at this time or sooner and entry into the Florida 18 Keys by non-residents should be strictly limited. 19 2. Approximately 36 hours in advance of tropical storm winds, a mandatory evacuation of .2 .T 20 mobile home residents, special needs residents, and hospital and nursing home patients > 21 from the Keys shall be initiated. 22 3. Approximately 30 hours in advance of tropical storm winds, a mandatory phased evacuation 23 of permanent residents by evacuation zone (described below) shall be initiated. Existing 0 24 evacuation zones are as follows: 25 a) Zone I - Key West, Stock Island and Key Haven to Boca Chica Bridge (MM 1-6) > 26 b) Zone 2 - Boca Chica Bridge to West end of 7-mile Bridge (MM 6-40) 27 c) Zone 3 - West end of 7-Mile Bridge to West end of Long Key Bridge (MM 40-63) 28 d) Zone 4 - West end of Long Key Bridge to CR 905 and CR 905A intersection (MM 63- 29 106.5 and MM 1-9.5 of CR 905) 0 30 e) Zone 5 - 905A to, and including Ocean Reef(MM 106.5-126.5) 0 31 ?: 32 The actual sequence of the evacuation by zones will vary depending on the individual storm. CD 33 The concepts embodied in this staged evacuation procedures should be embodied in the 34 appropriate County operational Emergency Management Plans. 35 36 The evacuation plan shall be monitored and updated on an annual basis to reflect increases, E 0 37 decreases and or shifts in population; particularly the resident and non-resident populations. 0 38 39 For the purpose of implementing Policy 101.2.4, this Policy shall not increase the number of W 40 allocations to more than 197 residential units a year, except for affordable housing. Any 41 increase in the number of allocations shall be for affordable housing. Mt.j U) 42 accepts 300 work!IN CC '.1 i. .Ria-_I:' ) housim4 earlv evacuation unit_building_p�ermit a1lt�catit�ns to 43 pljjsuant to the 'Aorkforce-Affordable � t1L1si ..11g initiative (Po ry 1013,12 " or orce ...................................................................................... C44 44 fnitiative) authorized by the Florida Administration Commission and the Florida D 45 -E..c.o.n o..i.-.n i.c..Q orn allocations identified .............. -P 46 in--R-u-le-s--2-8--20,_-F-,A.,C,-.,-slia-1-1--b-e-rests i-cted-to--r-en-ta-l--tic-cLIpqllc lit.lr_-tli-o-s-e-wlio-deri-v-e-a-t-lust--7-0% E 47 of :their incorne as members of the workforce in Monroe and who rneet the affordable ...................................................................................................................................................................................................................................................................................... 48 housl'.ng income of` 1Mvlonroc Cournyo�v ---------- I..,anLteve_D--------Lt. BOCC Staff Report Page 17 of 40 File 42020-067 Packet Pg. 3333 I sh a I I be re or hurricane, ZI ....................................... .......................................................... 2 No new additional residential dwellim4 unit allocations shall be authorized within the Phase I 3 of the 48-fir evacuation unless...gpp� _ yed_said p ............................................................................................................................................ ..1t2yide..d by the Florida Administration 2 4 Commission and the Florida--Df arti-nent Econonic Opportunity after review of' hurricane --------------------------------------------------------------- 5 evacuation i-nodelin Division of"Ernerge .................................................................................... _na 6 Mannernent ofavailable evacuation cal nacitv and a review ofthe level of'service and available > 7 c a 8 9 Objective 101.3 10 Monroe County shall regulate new residential development based upon the finite carrying capacity 11 of the natural and man-made systems and the growth capacity while maintaining a maximum 0 12 hurricane evacuation clearance time of 24 hours. 2 13 0 4- 14 Policy 101.3.1 0 15 Monroe County shall maintain a Permit Allocation System for new residential development ?: 16 known as the Residential Rate of Growth Ordinance (ROGO) System. The Permit Allocation 17 System shall limit the number of permits issued for new residential dwelling units. The ROGO 18 allocation system shall apply within the unincorporated area of the county, excluding areas 19 within the county mainland and within the Ocean Reef planned development (Future .2 .T 20 development in the Ocean Reef planned development is based upon the December 2010 Ocean > 21 Reef Club Vested Development Rights Letter recognized and issued by the Department of 22 Community Affairs). New residential dwelling units included in the ROGO allocation system 23 include the following: affordable housing units; market rate dwelling units; mobile homes; ftffd 0 24 institutional residential units (except hospital rooms)-, an_d__work_ft)rce_Iiou_sinv earl v--evac-u-a ti on. 25 units, > ..................... 26 27 Vessels are expressly excluded from the allocation system, as the vessels do not occupy a 28 distinct location, and therefore cannot be accounted for in the County's hurricane evacuation 2 29 model. Under no circumstances shall a vessel, including live-aboard vessels, or associated wet 0 4— le 30 slips be transferred upland or converted to a dwelling unit of any other type. Vessels or 2- 0 31 associated wet slips are not considered ROGO allocation awards, and may not be used as the ?: CD 32 basis for any type of ROGO exemption or THE(Transfer of ROGO Exemption). 33 34 ROGO Allocations for rooms, hotel or motel; campground spaces; transient residential units; CL 35 and seasonal residential units are subject to Policy 10 1.3.5. E0. 36 0 37 Policy 101.3.2 0 38 The number of permits issued for residential dwelling units under the Rate of Growth Ordinance 0. 39 shall not exceed a total of 1,970 new allocations for the time period of July 13, 2013 through W 40 July 12, 2026, plus any available unused ROGO allocations from a previous ROGO year and 41 300 workforce housing s authorized by the U) .................................................................................................. 42 Florida Administration Commission and the Florida Del) rtment Econo i rn c_C?DpLLtunity. A ------------------------------------------------------------------------------------------------------------------------- 43 ROGO year means the twelve-month period beginning on July 13. Market rate allocations shall 44 not to exceed 126 residential units per year.Unused allocations for market rate shall be available 45 for Administrative Relief. 46 E 47 In 2012, pursuant to Rule 28-20.140, F.A.C., the Department of Economic Opportunity 48 completed the hurricane evacuation clearance time modeling task and found that with 10 years' BOCC Staff Report Page 18 of 40 File 42020-067 Packet Pg. 3334 Q.3.c I worth of building permits, the Florida Keys would be at a 24 hour evacuation clearance time. 2 This creates challenges for State of Florida and Monroe County as there are 8,168 privately 3 owned vacant parcels [3,979 Tier I; 393 Tier II, 260 Tier III-A (SPA); 3,301 Tier III, and 235 4 No tier (ORCA, etc.)] and with 1,970 new allocations this may result in a balance of 6,198 5 privately held vacant parcels at risk of not obtaining permits in the future. In recognition of the 6 possibility that the inventory of vacant parcels exceeds the total number of allocations which 7 the State will allow the County to award,the County dct pted aslower rate of a nual allocations � 8 for market rite tlevelt� � e t_tt� extent1 the allocation til efra e to 202f and ism�cce trng 300 � 9 workft>rc:.e..(affc.)rclable) lit.)Lining e flv evacuaticn Unit bLilclinm .erznit allocations L.rsLant tt 10 the orkft.)rce A.fft.)rdable Housln,fnitiTtive(E'(.)licv__l_0l 3_l2 �o orkforce initiative auttioriaetl 11 loricla De artinent Economic O ortLLnitve G 12 These workftfrce 1iousln6, earby_eLacuation allocations that are in additionto the maximur � 13 build in �perrnl.t llt>ca lt>ns sc ent f sec In Llles 2 2ff . . . 1��1�e c>r ntv will consider adopting le 14 an extended timeframe for distribution of the ROGO allocations through 2033 with committed 15 financial support from its State and Federal partners. This timeframe can provide a safety net ?: 16 to the County and provide additional time to implement land acquisition and other strategies to 17 reduce the demand for ROGO allocations and help transition land into public ownership. 18 19 The County is actively engaged in acquisitions and is requesting its State and Federal partners .2 20 for assistance with implementing land acquisitions in Monroe County. The County will allocate 21 the 1,970 new dwelling unit allocations tfrrt>r 1r j1jjy I2. 2026 v=. :' t' � _ . If 22 substantial financial support is provided by July 12, 20182023, the County will reevaluate the 23 ROGO distribution allocation schedule and consider an extended timeframe for the distribution 0 24 of market rate allocations (through a comprehensive plan amendment). Further, the State and 25 County shall develop a mutually agreeable position defending inverse condemnation cases and 26 Bert J. Harris, Jr. Private Property Rights Protection Act cases, with the State having an active 27 role both directly and financially in the defense of such cases. 28 29 The County shall distribute ROGO allocations by ROGO year, as provided in the table below. 0 30 G CL 0. G i G i cv cv BOCC Staff Report Page 19 of 40 File 42020-067 Packet Pg. 3335 Q.3.c 1 N Annual Allocation ROGO Year Market Rate Affordable Housing Workforce Initiative July 13, 2013—July 12,2014 126 71 July 13, 2014—July 12,2015 126 71 July 13, 2015—July 12,2016 126 July 13, 2016—July 12,2017 126 N/A July 13, 2017—July 12,2018 126 July 13, 2018—July 12 2019 126 0 July 13, 2019—July 12,2020 126 568 total AFH July 13, 2020—July 12,2021 64 (total available 4- July 13, 2021—July 12,2022 64 immediately) July 13, 2022—July 12,2023 64 July 13, 2023—July 12,2024 62 300*,* July 13, 2024—July 12,2025 62 0 .N July 13, 2025—July 12,2026 62 > TOTAL 1,260 710* 309! *Includes two annual affordable ROGO allocations for the Big Pine Key/No Name Key subarea)through the U Incidental Take Permit(ITP) ending in 2023. cai xx Wo kfor i�ausir(r,early �� -tcu tt�arl url't allocat'aris shall be ava'lal�l� c,aurltywide (urlir1Cat�orate c� C11st111)CitC Cl Or1 E f1I5t Conk f1t 5t SC r�C 1) rSls F�c C CiC 5t5 for d elllnC7 Urllts dae�cloned arid/or deed-restricted Cit111T1r1cs � ...........te.......................t c.....................................................1.................................. . ......................... the workforce 1 oUslr1( C EI�y CyaCuatlorl I1rllt allOcatrOrls Ere SllI��C C[[O CICC (Jto�1S1orIS of l�011Cy ��}�.�.12. L t8 3 The State of Florida, pursuant to Administration Commission Rules, may modify the annual 4 allocation rate. Monroe County will request a Rule change from the Administration 0 le 5 Commission to authorize the above allocation timeframe and rate. G 6 CD 7 Policy 101.3.3 8 Monroe County shall allocate at least 20% of the annual allocation, or as may be established by 9 the State of Florida,pursuant to Administration Commission Rules,to affordable housing units CL 10 as part of ROGO. Any portion of the allocations not used for affordable housing shall be 0 11 retained and be made available for affordable housing from ROGO year to ROGO year. 0 12 Affordable housing eligible for this separate allocation and_workf`orce,_11ousinq_eIIE y evacuation �i 13 uimts shall meet the criteria specified in Policy 601.1.4 and the Land Development Code, but 14 shall not be subject to the competitive Residential Permit Allocation and Point System in Policy W 15 101.6.4. Any parcel proposed for affordable housing c>r wc>rl�fmt>rc llmt>�isin earlv__evacuation m m m__ 16 1i is shall not be located within an area designated as Tier I as set forth under Goal 105 or i 17 within a Tier III-A Special Protection Area as set forth in Policy 205.1.1. 18 19 Notwithstanding the foregoing, and notwithstanding Policy 101.6.2. affordable housing ROGO 20 allocations may be awarded to Tier I or Tier III-A properties which meet all of the following 21 criteria: 22 1. The property contains an existing market rate dwelling unit that meets the criteria in LDC 23 Section 138-22(a) and is determined to be exempt from ROGO; �t BOCC Staff Report Page 20 of 40 File 42020-067 Packet Pg. 3336 Q.3.c 1 2. The proposed replacement affordable dwelling unit meets current Florida Building Code and ZI 2 is not a mobile home; 3 3. The proposed replacement dwelling unit shall be deed restricted for a period of at least 99 4 years as affordable housing pursuant to the standards of the Land Development Code; and 5 4. The proposed site plan for the replacement affordable dwelling unit does not propose any 6 additional clearing of habitat. 7 8 Policy 101.3.4 9 The Permit Allocation System (or Rate of Growth Ordinance) for new residential development 10 shall specify procedures for: 11 1. establishing the annual number of permits for new residential units to be issued during the G 12 next ROGO year based upon, but not limited to the following: 13 a. expired allocations and building permits in previous year; 0 14 b. allocations available, but not allocated in previous year; 15 c. number of allocations borrowed from future quarters; ?: 16 d. vested allocations; 17 e. modifications required or provided by Administration Commission Rules; 18 f. modifications required or provided by this plan or agreement pursuant to Chapter 380, 19 Florida Statutes; and 20 g. receipt or transfer of affordable housing allocations by intergovernmental agreement; 21 and 22 h. receipt or transfer of allocations pursuant to the 2012 Hurricane Evacuation Clearance 23 Time Memorandum of Understanding. 24 2. allocation of affordable housing, workforce housing early evacuation units and market rate 25 housing units in accordance with Policiesy IfIe3e2_ pc 101.3.3; and 26 3.timing of the acceptance of applications, evaluation and scoring of applications, and issuance 27 of permits for new residential development during the calendar year. 28 29 Policy 101.3.5 0 30 Due to the limited number of allocations and the State's requirement that the County maintain 2- 31 a maximum hurricane evacuation clearance time of 24 hours, Monroe County shall prohibit ?: 32 new transient residential allocations for hotel or motel rooms, campground spaces, or spaces 33 for parking a recreational vehicle or travel trailer until May 2022.Lawfully established transient 34 units shall be entitled to one unit for each type of unit in existence before January 4, 1996 for 35 use as a ROGO exemption. (Ord. No. 024-2011) 36 G 37 Policy 101.3.6 38 All public and institutional uses (except hospital rooms)that predominately serve the County's 39 non-transient population and which house temporary residents shall be subject to the Permit W 40 Allocation System for residential development, except upon factual demonstration that such 41 transient occupancy is of such a nature so as not to adversely impact the hurricane evacuation U)i 42 clearance time of Monroe County. 43 ' 44 45 `V 46 Policy 101.3.9 47 For those ROGO applications and properties which have not received a ROGO award for four 48 consecutive years and have applied for administrative relief, which are designated Tier I, 11, or BOCC Staff Report Page 21 of 40 File 42020-067 Packet Pg. 3337 I IIIA,the County or the State shall offer to purchase the property if funding for such is available. ZI 2 Refusal of the purchase offer shall not be grounds for granting a ROGO award. 3 4 Policy 101.3.10 5 Notwithstanding any other provision of the Plan, ex e t tlie last sentence of' tbis..Policy 9.P........................................................................................................................... 6 10 1, J O. buildin g 144G-0 allocations utilized for affordable housing projects may be pooled > - ----- ----------------------- 7 and transferred between ROGO sub-areas, excluding the Big Pine/No Name Keys ROGO 8 subarea, and between local government jurisdictions within the Florida Keys Area of Critical 9 State Concern (ACSC). Any such transfer of' affordable housing allocations between local ...............................................10 government jurisdictions must be accomplished through an interlocal agreement between the 11 sending and receiving local governments. fnterlocal..qgreerneirts that involve assiginim—the 0 .......................................... ......... 12 Countv's affordable hcm�,��;IlaLqL!Lincludim4 affordable housim4 allocations banked for takinL 13 cases w th nt the that 0 tric t the 4- 14 associated market rate ROGO,,`BPA,S exei , tions be transferred into Ltl,jie�uninc�oorated County n i�()n s D�! an transferred into� - ---- 0 15 as a ex Ii n e for the affordable liousim4 allocations transferred to the municipality, shall be ?: .............. ....................................................................................................................... ...................................... CD 16 accomplished throm4l'i a minor conditional uw permit a moval and shall be subiect to 11- 17 receiver site c1JI.e.l.i.a ifl Ro.)i.c.v 101,6,8 and rnav be transferred to anv subarea within the 18 -u-nin_cLI III_nLj_-e--v--en-t----s-h---a---l--1---t-h---e--Con-t-y__(1.1R) I anti transfer worl�force housing 19 ead -areatransfer workforce housing .2 20 earlv evacuation unit allocations to another .T) _6)�(.)verni-neryt'Lirisclicti(.)n. 3 receive workforce > ------------------------------------------------------------------------------------------ W 21 hous n ea 'u i dict ...................fl... i i4overnrnent on,.or(4) E .................i........... .............— 22 transfer aff(.)rdabl-e hou-s-im4 ROGO allocations received by th-e Coun-ty in e_xLIIqn ge for 23 workforce housing nment 'urisdiction, 0 ........................................................................... .................................................. M 24 25 Policy 101.3.11 > 26 Monroe County may receive additional building permit allocations pursuant to the 2012 27 completed hurricane evacuation clearance time modeling and allocation recommendations by 28 the State Land Planning Agency and the Administration Commission's direction that the City 29 of Key West transfer annually (by July 15th) any remaining unused allocations for that 0 30 year to the other Florida Keys' local governments based upon the local governments' ratio of 0 31 vacant land. Any transferred allocations from the City of Key West to Monroe County shall be ?: 32 made available for Administrative Relief. Monroe County rnav receive.,and award 300-buildin 14 CD CD 33 p 11-nit allocation.s..designated as workforce housing earl............................................................allocations...designated........... ' _.............. 34 'Aorkforce-Affordable Housim4 fnitiative Policv 1013,12 "`orkforce fnitiativej_A� L g�L __p �.I�j t �j .2 ------------------------------------------------------------------ ----------------------------------------- CL 35 0. E 36 These aliocati-on-s th-a-t--are in addition to thei-yi-axi-i-ylui-n--a-I-I-o-ca-ti-ons--i-den-ti-f'ie-d--i-n--Pules--2-8---20, 0 37 F,A.,C,,.and shall be re uired to evacuate in Phase I ofa endim, ior ......................... ................................................................ .......... 0 38 hurric-an-e-, 39 40 tPolicy 101.3.12 41 Workforce-III _. on-straints on U) 42 affordable housing. to-protectl 1, riO'its and address potential liability the County (0 -_____--------------- -- _-__ - 43 Is pTaitI i..qIngp,I in )rce fn_itiativ�e ....as t g in the ",(.)rl<f(.)rce-,A.ff(.)rclible Housing. ative... orkft� ........... .. _ (�� .......... 44 orida Administration Commission, Monroe 45 Cou ac cepts s the 300 workforce housinv early evacuation buildin,hermit allocations ................. ...................................................................................................................................................... 46 js.L�L�Ija�jj_t.....to the " orkforce-Affordable HousinL, Initiative authorized by them F-1-ori-da -------------------------------------------------------------------------------- E 47 AdIni'ni'stration Commission and the Flo ida...De rtment Eco orn c....O The.......................................................................................................................................................................................i............... ...... .............J__ ___p_p_�.Iqqnj�y, Th e 48 'Aorkforce-Affordable Housim4 initiative will rectuire dwelling s constructed and/or deed BOCC Staff Report Page 22 of 40 File 42020-067 Packet Pg. 3338 I restricted with workforce liousing..g.4jty_evacuation building..-permit allocations to evacuate S, .................................................................................................................................................... permit 2 occL ants in Phase I of' the 48-lir evacuation of' oendim4 i-n Ii an sut to the -------------------------- 3 c1d.1e. .J.-a he.I.Q.w.,. 4 5 T t in the Worki"orce fnitiati e Monroe C unt7v shall b nsible f(.)r the ............................................................................................................................ ........... resP.t� sible inana -nents associated with the workfo-rce > 7 hous mLe'la 11 it allocations, Monroe Coun.ty-�sshall ensure adherence ..............-.1-- ---� ............................................................................................................................ 8 to th L�L_L��q e LttLerneats through implementation of` ])Olicv and shall annuallv_pLwide to the ----------------------------- -------------------------------------- 9 Florida...D artment Economic the number of' workf(.)r,-,- ........................... ....gP arty...........................................................................Qp.pi�jjqjjj .................................................................................................................... 10 liousim4 earlv evacuation units built andor deed restricted., occup --------------—--------------------------------------------------------------I-----------------------------------------------------112saincv--ra-te-s-.,--and--coinplicince 11 with there_ the units in Phase f of`an evacuation, The annual rer)ort shall 0 ...................... 12 he-pLwided to- the State in a tirnely-jg-qnjjeL iLj,� -q -nav include the information in�-tli e--S-ta-te--i the ------------------------------------------------------------ 13 t1le net on the Count S 0 ................ ...........pmaess—toward 4- le 14 corn letion of`its Work Prourai ule 28-20., FA-C, 0 15 ?: 16 DweIli-m4 units developed and/or deed restricted utilizim4 the workfo-rce housim4 early 17 evacuation unit allocations are subject to thelollowim4: .................................................................................................................................................. ............................................................................. 18 19 (a) Regquests for workforce housing.ear T) 20 f(.)r a I f(.)r 1_exclian.gg f or ffar� able� llacat�ins`e� em LtLT .1a Lt_L q r e a re s ervation via > 21 .B......O........C..C..........reso....u......t.i.on T.......h....e...BO.C..C..rna.,..a.t...its..d...i.s..c..retio.n......p .U..on s..on..an.v reservation� 22 as it deei-n�qUall.) The BOC priate, The BOCC, i-nciv_.,___atits__d_isc_retion_.,_-exclian�4e existim4 reserved --------------------- --- 23 aff(.)rdable allocations f(.)r allocations under the Worki"orce fnitiative 0 .........................................................................................................................................................................................................................................................................................................................................................ta PEIK� Ca 24 developM.�j��L �IIL L Partners willim4 to meet the r--l— ents of' the --------------- 25 workf(.)rce liousim4 early evacuation unit allocations, Furtlier....t.].,i.e...B.00.C..I,.n�Iv ............................................................................ > 26 di-scre-n-o-n-.-,-- aff(.)rdable liousim4 units 27 fjawful_affordable exemptions) at existing..1 q1tifilmily residential develoornents fol .......................................... 28 allocations under the Worki"orce fnitia_qL�LtLI ys��rnent and n jjVLgfh )i -------------------------------------------------------------------------------------- _private devel - ---------------------------0 29 early evacuation unit 0 30 allocations, 0 31 e f(.)r workforc.e.housim4 ?: CD 32 early evacuation unit allocations shall be banked and used T('.)'r'...f"L'i't'u-'re workforce in i�s"t'r...a't`iV-- CD ive 33 m 33 relief`. inverse condemnation cases and 34 Be-rt-J-,-Harr-is.,-Jr,--Priva-te--PrL) tK-Ri.i4lits Protection Act cases, CL 35 b ..FA.,C, the affordable allocations 0. .......................... E 36 returned--to--the-County--shall--b-e--maintained--as--affordable--allocations--and--shall---also-be0 37 returned to.the.original affordable l'i ousin g.ga _qo.iEv-(vervl(.)w�,"1(.)w�,"i-necliininc(.)i-nevs, cai .................................................38 moderate i o-n 0 n-c---i---e_pLool), 0. 39 ocations i-nust be utilized based on the W 40 oi-44inal approved affordable housinu or a lesser income cat�,orK,. 41 (4) Ad! i.n i..s tr2.Ii.ye...Ie.IJ ef.J.-D..e.An s a.c ti o.R.s taken by the County granting the owner of'real U) 42 p from the continued a lication of the Rate of Growth Ordinance (0 43t3Cft3)restricto-ns prc>viclecl tliev meet flee criteria established in flee Co-�n e 44 Plan and L,and DevelL.) CD CN C44 45 (5) 13.�gnd'icial use means the use of ..................................................................................................................... 46 pL�.IC�L in the exercise of' a basic rtK right For the s e (.)f this (.)�Ii c y..,---------------------------------------------------------------RL.)Re Rurp�� E 47 beneficial use shall mean the minimum use of'.thepjQp��e ................................................................................................................................................................................................................................... 48 findim4 of'a m4ulatory mkin-y under current land use case law, BOCC Staff Report Page 23 of 40 File 42020-067 Packet Pg. 3339 I (b) BIg c tins�juction of"dwelling or the deed restriction..of"existing S, ............................................. ................. ................ ............................................... ......................... ..........existing 2 d lim4 units utilising w(.)rl<f(.)rce housing early aLL t� E i units LT7. it allocations slial I r t�jtionun--------------------------------------------m iE�� 3 a devel t greernent,gp ............... _1 0 4 (c) -A.1-1-w-orkf(.)rc-e--Ii-ousi-ni4 earby_�L�L�uation units require a deed-restriction ensuring: 5 (1 be issued f' o.......... 6 Prt?iect sLrbiect_It�_jj,�e_]L`orkft)rce fnitiative., a restrictive covenant shall be appLwed > -----------------------------------------------------------------------------------------------------------------L 0) 7 by the Plannim4 Director and County Attornev and recorded in the Office of'the-Clerk 8 of"the-Cou sure nty to ens cornpliai_nce withvthe_RL�.I�ision ofthi se ng in s section ru favorr -_ - - - -_ - - -_ -_ - - - - -_ n 9 of......d....'.i e C.......t. 0 tv and enforceable by the County and i f_gp.pli a I g.b..g a p-art-i-c-i-patin gy 10 rnLnlcl alitvm lhme ft>llt>win reclrrirernents shall ataply to these restrictive covenants: ------------------------------------------------------------------ 11 a, The covenants f(.)r.any workforce housing.oq1ty evacuation units shall be effective 0 ................................................................................................... 12 for 99 13 b, The covenants shall not commence run ins until...a certificate of' occ an �n�n�nn The...........................................................................................................................................................................a =T 0 ................................................................................................................lip........... 4- le 14 been issued v gilding Official for the dwelling unit or dwelling unit, L_ ---------- --------------L -------------- 0 15 which the covenant or coven an ts.,j�_pp ................................................................ _ �jy, 16 c. For ---------�L�i-s tin 17 evacuation units. the covenants shall commence running....................................................................... ng tin..Iec...or...da.ti oVn...J.n...IJI..e.. 18 Official Records of'Monroe CounL\L,. 19 units to be .2 20 -r-e--s---t-r-i-c-t-e-d-----t-----r--e-n---t-a-l-_j c_cjVLncy---f-()r--t-h-o- s--e----w----h--o-----d---e--r-ive----a-t--l-ea-s--t---7-0--------o---f-'-t-h---e--i- r—income as 21 M>members of" the workf(.)rce in Monroe Coun .............................................................................................................................................................................................!��qnd who meet affordable housing 22 income f' the Monro L,and Develo��L�L(�gories of the Nll(.)nr(.)c CourytV 23 are r q annually verify their em ment anct/or income eligibility,eiiii-ed to 0 ............ 24 U11-Th e--c oven a-n-ts--s-Ii a I---Lequire occu- -------------------- 25 "-n,'.gE...I'lurricane, Persons living in the workforce housing early > .......................................................................................................... 26 evacuation units who-mav be ex 27 .l.a.w....... enforcer ent........c.o.r...r....ec.t.....on......a.l... a fire......p I health_care pers nnel.....a .d...�PL jblic m 28 efyi l i Ii e-n )�ency an ploy_�L�s.... ........... S, 29 indicggsjIj.eir..ernp i ition' and not included 0 ........................... ................................................... 30 in the list of' ibove, then the Planning Director slia11 cleterrnine., in writing, 0 'w�enl ted because of e uirerneirt to rein,31 wh e th e th e be ex� _ain during an .............................. ...................................._a q 32 ern��I�Lencyl Any j!j rn i under this hall submit 33 a.ft....i....davi.t.....of.'.. I the onsite property 34 management, CL 35 which contain a sevarate disclosure 0. E 36 LeLqu_idng rental occu ants to acknowledge the ictive covenant on the unit 0 37 requirinv evacuation in Phase I of'the 48-1ir evacuation and that failure to adhere to 0 38 cuai'Qn se the Phase I eva ment could result in sever penalties. in - --- -- -------- - -L in --- 39 eviction,tothe occu ............................... ........................ 40covenants slial ners and a s r e e-n en i �L _inL�q . �,Xj L --- i PI—Oym --- ------ ------------- 41 cfisc,lt>sLre re Lirin tFreance of tr inin in ev crr it>n prt>ceclLres an and a U) a 42 ackno ehei-yient that failure to adhere to the Phase I evacuation requirement could (0 43 result in severe e including termination, ................................._ �p ............................ ...................................................... C44 44 (d) early_Lv-Luation units shall be restricted to rental_occut)ancv for those CD ----- of ------------------------------------------------------------------------------------------------------------------ - C44 45 who derive at least 70% their incoi-ne as i-nei-i-ibers of`the workf(.)rce in Monroe County ................................................................................................................................................................................................................................................................................................................................................................................................ 46 and---w-li-o--i-n-ee-t--tli-e--a-f'f(.)rd-abl-e--Ii-o-u-s-i'-Ii� i'ncorne categories of' the Monroe County--I..,and 47 D I p ain u y eve 0 .1 �Mt...Cgde, Workforce means individuals or farnilies who are i4 .............................. ........................................................................................................................................................................................................................................................................... 48 empjoyed lVirig i and or services to Monroe County residents or visitors,_�u2p 400ds... ---------------------------------------------- BOCC Staff Report Page 24 of 40 File 42020-067 Packet Pg. 3340 I (e) M,orkf(.)rce housi &��IEI ................................................................... 2 PLt>Mr—t\� m required to mana e the 3 evacuation of tenants in Phase f of an evacuation workin&11t.Ijt�5,the........................................................................................................................................................................................................................... .... ....... traditional...................................... 4 PLQomt\�12 sini4 earlv evacuation unit 5 Xt�pgjty, Outside the traditional working hours. ....................... 6 mana uation orders, > 7 (f) Rg xw. 1early evacuation units shall i� 8 be_Lequired to ------an-d----in-c--o-----n--e--_-e--1--4—4ibility--of----t-e-n--an-t-s-- ,-rcart 9 the total units on the pliance with the ................................................................................................................ .............. .................................. ............................................................... 10 LeLquirernent to evacuate the units in Phase f ofan evacuation., including the number o ---------------------------------------------------------------------------------------------------------------------------------- 11 nagernent 0 _.g.gLip Th prgpe�rna�- 0 .qjq�.that are exernptft�!! .1bg.evacuation rec urrernents, ............................................................ ................................................... �nl lie 12 entity must subrnit_a rmjiLt_IcItli�L ) -�nLiin&AnA -neEL y ----------------------------------------------- 13 Mav I ofeach vear Further each lease and this annual.report shall be kgp�t�hyjj!� 0. .............. ................................................................................................................... 4- le 14 rnanag�j��Ltion bV the_CounjUtg1ing traditional working hours, 0 15 (g) M,orkf(.)rce my.e, ........................................ hous........................ d e s i i4nated....A.s. ?: 16 Tierli L 17 (h) M,orkf(.)rce in hous V-Zone or within a ...................................18 Coastal Barrier Resource__Systern_(LBRS), ------------------------------------------------------ --------------- Workforce housiD shall be loca 19 (i) ........................................................................ r..gp.ety wIiich has all .2 20 infrastructure available t ---------------------------------------------------- LI.E-q __E�L_��wa-te-r---treau-n-en-t---an-d---dia-L)S-1111 21 wastewater rn ee tin -- P—aveclroacls ......................................... 22 0) All workforceliousini4 early evacuation units must dernonstrate coo liance with all ------------------------------- ---------------—---------------------------------------------------------------------- . . .. . .I_p 23 g1?1)Iicable federal standards for accessibility fo disa�b 0 _....................................................................... ........... ......... e�rs(.)�ns�wi�tii�disabili�ties�,,�.F),,��. ca 24 CLIIi2pji�ance 25 (k) e.�tgjjt..p ��.ticable., a develo i i.zi.n- workforce o sing early > ' . ............................................. 26 ev-ac- on-on---un-i-t--al-l-oc-ation-s--sli-a-l-l--i-n-c 27 into the overall site desig sib I e to e p i.n. !t.Iyrneryt centers in Key West-...51t! k 28 fstand-an-d-M-ara-th-on-, 2 29 0 4- 30 GOAL 601 0 31 Monroe County shall adopt programs and policies to facilitate access by residents to adequate and ?: 32 affordable housing that is safe, decent, and structurally sound, and that meets the needs of the population 33 based on type, tenure characteristics, unit size and individual preferences. 34 35 Objective 601.1 E 36 To-e-n-s-ure that of fordabl-elii uL Lng ortunities are available throm4hout the entire cornmunirv--and 0 37 to maintain a balanced and sustainable local econornv and th revision cif se County ....... services,Monroe �I 0 38 County shall implement the following defined policies to reduce estimated affordable housing need 0. 39 for its workforce and households in the very low, low, median and moderate income classifications. W ............................................................................ 40 41 Policy 601.1.1 U) 42 Monroe County shall maintain land development regulations, in conjunction with the Permit (0 43 Allocation System, for apportioning future affordable housing development 44 45 Policy 601.1.2 46 Monroe County shall con-ti-nile-expan-4 its participation in Federal and State housing assistance E 47 programs to rehabilitate owner and rental housing for very low, low, median, and moderate BOCC Staff Report Page 25 of 40 File 42020-067 Packet Pg. 3341 Q.3.c 1 income residents by seeking grants, loans, and technical assistance in conjunction with the 2 Monroe County Housing Authority 2 -. 3 c 4 Policy 601.1.3 5 The Monroe County Land Authority shall maintain a list of buildable properties owned or 6 targeted for acquisition by the Land Authority which potentially could be donated or made 7 available for affordable housing. This list will be updated annually and made available to the ?� 8 public. The guidelines established in Policies 601.1.10 and 601.1.11 shall be considered in the 9 formulation of this list. 10 11 Policy 601.1.4 0 12 All affordable housing projects which receive development benefits from Monroe County, 13 including but not limited to ROGO allocation award(s) reserved for affordable housing, 0 14 maximum net density, or donations of land, shall be required to maintain the project as 2- G 15 affordable for a period of 99 years pursuant to deed restrictions or other mechanisms specified 16 in the Land Development Code, and administered by Monroe County or the Monroe County 17 Housing Authority. 18 19 Policy 601.1.5 ° 20 If Monroe County funding or County-donated land is to be used for any affordable housing 21 project, alternative sites shall be assessed according to the following guidelines: 22 1. The location of endangered species habitat. Sites within known, probable, or potentially 23 suitable threatened or endangered species habitat shall be avoided. 24 2. The environmental sensitivity of the vegetative habitat. The habitat sensitivity shall be 25 determined according to the ranking specified in the Environmental Design Criteria 26 section of the Land Development Code. Disturbed sites shall be selected, unless no 27 feasible alternative is available. 28 3. Sites located within V-Zones, on offshore islands, or within CBRS units shall be avoided. 29 4. The level of service provided in the vicinity for all public facilities. Areas which are at or 0 le 30 near capacity for one or more public facility should be avoided. 31 5. Proximity to employment and retail centers. Sites within five miles of employment and ?: 32 retail centers shall be preferred. 33 34 Policy 601.1.6 35 Monroe County shall identify funding sources that could be made available to support 36 community-based non-profit organizations such as Habitat for Humanity in their efforts to 0 37 provide adequate affordable housing. i 38 39 Policy 601.1.7 40 Monroe County shall continue to participate in the State Housing Incentives Partnership 41 program as specified in the 1992 William Sadowski Affordable Housing Act. Monroe County U)i 42 shall also continue to maintain a Local Housing Assistance Plan and Affordable Housing 43 Incentive Strategies as specified in the Act and recommended by the Monroe County 44 Affordable Housing Advisory Committee. N 45 46 Policy 601.1.8 47 Monroe County shall allocate at least 20% of the annual ROGO allocation, or as may be 48 established by the State of Florida,pursuant to Administration Commission Rules,to affordable �t BOCC Staff Report Page 26 of 40 File 42020-067 Packet Pg. 3342 I housing units, as specified in Policy 101.3.3. Affordable housing eligible for this separate Z, 2 allocation must meet the criteria established in the Land Development Code. Monroe County -------------------------------—3 may award 300 additional building_pew nit allocations desia ated as workforce housing early ............ ..............................................= ..................................................................................................._ 0 4 evacuation units ---�L�_the ",orkf(.)rce-A.ff(.)rdabl-e--Housin�4 Initiative (Policv 1013,12 ---- ---___ ---------------------- 5 Workforce fnitiati mission and the Florida ............................................................................... 6 ...aJjo-c---a--t-i-o-n---s----ar--e----i-n------a-d---d---i-t-i-o-n------t-o----t-h---e-- maximmu n 7 --- > allocations identified in Rules..28-20., F,A.,C,., are restricted to rental cu a cv for those who ................................................................................................................................... ...................................................................................................................... E.... 8 de-rive--a-t--Ie-ast-70%--of'--tli-ei-r--inc-o-i-n-e--a-s--i-n-ei-nbe-r-s--of'--tti-e--wo-rkf(.)rce--i-n--Mon-r-oe--Cou-n-t7v--and--w-li-o 9 rneet the affordableli.ousi'ng income categories of`the Monroe(County 11....,and Devel( ............................................................................ ........................ 10 and red to evacuate in Phase I of the 8-fir evacuation of a en-din --n a .jrL --- --- - - ------- --- - --- - ------- 11 hurricane, 0 ........................................... 12 2 13 Policy 601.1.9 0 4- le 14 Monroe County shall maintain land development regulations which may include density 0 15 bonuses, impact fee waiver programs, and other possible regulations to encourage affordable ?: 16 housing. 17 18 Policy 601.1.10 19 The Land Authority may acquire land for affordable housing projects if they are deemed .2 .T 20 appropriate and acceptable by the Land Authority as meeting the intent of: > 21 1. the affordable housing provisions in the Land Authority's enabling legislation; 22 2. the goals, objectives and policies of this Plan; and 23 3.the land use designations specified on the Future Land Use Map and in the Monroe County 0 24 Land Development Regulations. 25 > 26 Policy 601.1.11 27 The Land Authority shall not list or acquire vacan..t"lands as potential affordable housing sites ............ .28 if the lands exhibit any of the following characteristics: 2 29 1. Any portion of the land lies within a known,probable, or potentially suitable threatened or 0 4- 30 endangered species habitat. 0 31 2. The land has a Tier designation other than Tier 111. ?: 32 3. The land is located in a V-Zone, on an offshore island or within a CBRS unit. 33 34 Policy 601.1.12 35 Monroe County shall annually monitor the eligibility of the occupants of housing units which E 36 have received special benefits, including but not limited to those issued under the affordable 0 37 housing provisions specified in the Land Development Code or those issued through the Permit 0 38 Allocation System. If occupants no longer meet the eligibility criteria specified in the Plan and 39 in the Land Development Code, and their eligibility period has not expired, then Monroe 40 County may take any one or a combination of the following actions: 41 1. require the payment of impact fees, if they were waived; U) 42 2. proceed with remedial actions through the Department of Code Compliance, as a violation (0 43 of the Monroe County Code; 44 3. take civil court action as authorized by statute, common law, or via agreement between an 45 applicant and the County; and/or 46 4. require the sale or rental of the unit(s)to eligible occupants. E 47 48 BOCC Staff Report Page 27 of 40 File 42020-067 1 Packet Pg. 3343 Q.3.c I Policy 601.1.13 2 Monroe County shall maintain land development regulations on inclusionary housing and shall 3 evaluate expanding the inclusionary housing requirements to include or address nonresidential 4 and transient development and redevelopment based on specific data and analysis. 5 6 Objective 601.2 7 Monroe County shall adopt programs and policies to encourage housing of various types, sizes and ?� 8 price ranges to meet the demands of current and future residents 9 10 Policy 601.2.1 11 Public-private partnerships shall be encouraged to improve coordination among participants 0 12 involved in housing production. In these efforts, the County will establish a comprehensive 13 central depository for housing information located at the Monroe County Housing Authority 0 14 and Growth Management Division for the coordination and cooperation among public and 15 private agencies which collect and use housing data. ?: 16 17 Objective 601.3 18 Monroe County shall continue implementation efforts to eliminate substandard housing and to 19 preserve, conserve and enhance the existing housing stock, including historic structures and sites. .2 20 21 Policy 601.3.1 22 Monroe County shall coordinate with other County agencies to monitor housing conditions. 23 Standards for evaluation of the structural condition of the housing stock are summarized below: 24 Sound: Most housing units in this category are in good condition and have no visible 25 defects. However, some structures with slight defects are also included. 26 27 Deteriorating: A housing unit in this category needs more repair than would be provided 28 in the course of regular maintenance, such as repainting. A housing unit is classified as 29 deteriorating when its deficiencies indicate a lack of proper upkeep. 0 30 G 31 Dilapidated (Substandard): A housing unit in this category indicates that the unit can no CD 32 longer provide safe and adequate shelter or is of inadequate original construction including 33 being constructed below the minimum required elevation by FEMA or the County's 34 Floodplain Regulations. CL 35 0. 36 Policy 601.3.2 0 37 The County Code Compliance Office and Building Department will enforce building code 38 regulations and County ordinances governing the structural condition of the housing stock, to 39 ensure the provision of safe, decent and sanitary housing and stabilization of residential W 40 neighborhoods. 41 i 42 Policy 601.3.3 43 Monroe County shall encourage expanded use of U.S. Department of Housing and Urban 44 Development(HUD)rental rehabilitation programs by the Monroe County Housing Authority 45 and State and Federal Floodplain or Hazard Mitigation programs to facilitate increased private 46 reinvestment in housing by providing information, technical assistance in applications for E 47 federal and State funding, or provide local public funds for rehabilitation purposes. 48 BOCC Staff Report Page 28 of 40 File 42020-067 Packet Pg. 3344 Q.3.c I Policy 601.3.4 2 Monroe County shall encourage identification and improvement of historically significant 3 housing through the coordination of public information programs defining benefits and 4 improvement funding sources. 5 6 Objective 601.4 7 Monroe County shall maintain land development regulations which allow group homes and foster ?� 8 care facilities licensed or funded by the Florida Department of Health (DOH), as well as subsidized 9 housing for elderly residents of the County, to be located in residential areas as appropriate. 10 11 Policy 601.4.1 0 12 Monroe County shall maintain land development regulations which permit group homes and 13 foster care facilities (homes of six or fewer residences which otherwise meet the definition of 0. 14 Community Residential Home pursuant to F.S. § 419.001(1)(a))licensed or funded by the DOH 2- G 15 in all land use categories which permit residential development where consistent with other 16 goals, objectives, and policies of this Comprehensive Plan. 17 18 Policy 601.4.2 19 The County shall identify and evaluate alternative strategies to expand subsidized housing .2 20 programs for elderly residents of Monroe County through coordination with the Monroe County 21 Housing Authority, and encourage their development by private, community-based non-profit, 22 or public entities, as well as public/private partnerships. 23 24 Objective 601.5 25 The County shall provide uniform and equitable treatment for persons and businesses displaced by 26 state and local government programs, consistent with F.S. § 421.55. 27 28 Policy 601.5.1 29 By May 1, 201:2f�2,4, Monroe County shall adopt uniform relocation standards for displaced 0. 30 households. 31 CD 32 33 IV. CONSISTENCY WITH THE MONROE COUNTY COMPREHENSIVE PLAN, THE 34 PRINCIPLES FOR GUIDING DEVELOPMENT,AND FLORIDA STATUTES. 35 36 A. The proposed amendment is consistent with the Goals, Objectives and Policies of the Monroe 37 County 2030 Comprehensive Plan. Specifically,it furthers: 0� 38 39 GOAL 101: Monroe County shall manage future growth to enhance the quality of life, ensure the safety of 40 County residents and visitors, and protect valuable natural resources. 41 v) i 42 Objective 101.2: As mandated by the State of Florida,pursuant to Section 380.0552,F.S.and Rule 28-20.140, 43 F.A.C., and to maintain the public health, safety, and welfare, Monroe County shall maintain a maximum 44 hurricane evacuation clearance time of 24 hours and will coordinate with the State Land Planning Agency 45 relative to the 2012 Memorandum of Understanding that has been adopted between the County and all the `V 46 municipalities and the State agencies. 47 E BOCC Staff Report Page 29 of 40 File 42020-067 Packet Pg. 3345 Q.3.c I Policy 101.2.1: Monroe County shall maintain a memorandum of understanding with the State Land Planning 2 Agency, Division of Emergency Management, Marathon, Islamorada, Key West, Key Colony Beach, and C 3 Layton to stipulate,based on professionally acceptable data and analysis,the input variables and assumptions, y p � p y p y � p p , � 4 including regional considerations, for utilizing the Florida Division of Emergency Management's (DEM) 2 5 Transportation Interface for Modeling Evacuations("TIME")Model to accurately depict evacuation clearance 6 times for the population of the Florida Keys. 7 8 Policy 101.2.2 9 Monroe County shall coordinate with all the municipalities, the State Land Planning Agency and Division of 10 Emergency Management to update the variables and assumptions for the evacuation clearance time modeling 11 and analyses of the build-out capacity of the Florida Keys Area of Critical State Concern based upon the 12 release of the decennial Census data. Pursuant to the 2012 completed hurricane evacuation clearance time 0 13 modeling by the State Land Planning Agency, which incorporates the 2010 Census data, the County may 14 allocate 10 years' worth of growth (197 x 10 = 1,970 allocations, 197 annual ROGO rate based on Rule 28- 0 15 20.140, F.A.C.) through the year 2023, while maintaining an evacuation clearance time of 24 hours. The 16 County will adopt_a slower rate of annual allocations for market rate development to extend the allocation 0 17 timeframe to 2033 without exceeding the total of 1,970 allocations (see Policy 101.3.2). The County shall 18 reevaluate the annual ROGO allocation rate based on: 1) statutory changes for hurricane evacuation clearance W 19 time requirement standards; 2) new hurricane evacuation modeling by the State Land Planning Agency and V 20 Division of Emergency Management; and 3) a new or revised memorandum of understanding with the State o 21 Land Planning Agency,Division of Emergency Management,Marathon, Islamorada,Key West,Key Colony 22 Beach and Layton(see Policy 101.2.1). 23 24 Policy 101.2.4 25 In the event of a pending major hurricane (Category 3-5) Monroe County shall implement the following 26 staged/phased evacuation procedures to achieve and maintain an overall 24-hour hurricane evacuation 27 clearance time for the resident population. 28 1. Approximately 48 hours in advance of tropical storm winds, a mandatory evacuation of non-residents, 29 visitors, recreational vehicles (RVs), travel trailers, live-aboard vessels (transient and non-transient), 30 and military personnel from the Florida Keys shall be initiated. State parks and campgrounds should be 31 closed at this time or sooner and entry into the Florida Keys by non-residents should be strictly limited. 2 32 2. Approximately 36 hours in advance of tropical storm winds, a mandatory evacuation of mobile home 4- 33 residents, special needs residents, and hospital and nursing home patients from the Keys shall be 0 34 initiated. 35 3.Approximately 30 hours in advance of tropical storm winds,a mandatory phased evacuation of permanent 36 residents by evacuation zone (described below) shall be initiated. Existing evacuation zones are as 37 follows: a. 38 a) Zone 1 -Key West, Stock Island and Key Haven to Boca Chica Bridge (MM 1-6) a. 39 b) Zone 2 - Boca Chica Bridge to West end of 7-mile Bridge (MM 6-40) c 40 c) Zone 3 -West end of 7-Mile Bridge to West end of Long Key Bridge (MM 40-63) i 41 d) Zone 4 - West end of Long Key Bridge to CR 905 and CR 905A intersection (MM 63-106.5 and 0 42 MM 1-9.5 of CR 905) 43 e) Zone 5 - 905A to, and including Ocean Reef(MM 106.5-126.5) ; 44 45 The actual sequence of the evacuation by zones will vary depending on the individual storm. The concepts hI 46 embodied in this staged evacuation procedures should be embodied in the appropriate County operational 47 Emergency Management Plans. 48 `V cv 49 The evacuation plan shall be monitored and updated on an annual basis to reflect increases, decreases and or 50 shifts in population;particularly the resident and non-resident populations. 51 BOCC Staff Report Page 30 of 40 File 42020-067 Packet Pg. 3346 Q.3.c I For the purpose of implementing Policy 101.2.4, this Policy shall not increase the number of allocations to 2 more than 197 residential units a year,except for affordable housing.Any increase in the number of allocations C 3 shall be for affordable housing. 4 5 Objective 101.3: Monroe County shall regulate new residential development based upon the finite carrying 6 capacity of the natural and man-made systems and the growth capacity while maintaining a maximum 7 hurricane evacuation clearance time of 24 hours. 8 9 Policy 101.3.1: Monroe County shall maintain a Permit Allocation System for new residential development CD 10 known as the Residential Rate of Growth Ordinance (ROGO) System. The Permit Allocation System shall 11 limit the number of permits issued for new residential dwelling units. The ROGO allocation system shall 12 apply within the unincorporated area of the county, excluding areas within the county mainland and within 0 13 the Ocean Reef planned development(Future development in the Ocean Reef planned development is based 14 upon the December 2010 Ocean Reef Club Vested Development Rights Letter recognized and issued by the 0 15 Department of Community Affairs).New residential dwelling units included in the ROGO allocation system 16 include the following: affordable housing units; market rate dwelling units; mobile homes; and institutional � 17 residential units (except hospital rooms). CD 18 C 19 Vessels are expressly excluded from the allocation system, as the vessels do not occupy a distinct location, 20 and therefore cannot be accounted for in the County's hurricane evacuation model. Under no circumstances 21 shall a vessel, including live-aboard vessels, or associated wet slips be transferred upland or converted to a A 22 dwelling unit of any other type. Vessels or associated wet slips are not considered ROGO allocation awards, 23 and may not be used as the basis for any type of ROGO exemption or THE(Transfer of ROGO Exemption). 24 c, 25 ROGO Allocations for rooms, hotel or motel; campground spaces; transient residential units; and seasonal 26 residential units are subject to Policy 101.3.5. 27 28 Policy 101.3.2 29 The number of permits issued for residential dwelling units under the Rate of Growth Ordinance shall not 30 exceed a total of 1,970 new allocations for the time period of July 13, 2013 through July 12, 2026,plus any 31 available unused ROGO allocations from a previous ROGO year. A ROGO year means the twelve-month 2 32 period beginning on July 13.Market rate allocations shall not to exceed 126 residential units per year.Unused 4- 33 allocations for market rate shall be available for Administrative Relief. 0 34 ?: 35 In 2012, pursuant to Rule 28-20.140, F.A.C., the Department of Economic Opportunity completed the 36 hurricane evacuation clearance time modeling task and found that with 10 years' worth of building permits, 37 the Florida Keys would be at a 24 hour evacuation clearance time. This creates challenges for State of Florida a. 38 and Monroe County as there are 8,168 privately owned vacant parcels [3,979 Tier I; 393 Tier II,260 Tier III- a. 39 A (SPA); 3,301 Tier III, and 235 No tier(ORCA, etc.)] and with 1,970 new allocations this may result in a E 40 balance of 6,198 privately held vacant parcels at risk of not obtaining permits in the future. In recognition of i 41 the possibility that the inventory of vacant parcels exceeds the total number of allocations which the State will 0 42 allow the County to award, the County will consider adopting an extended timeframe for distribution of the 43 ROGO allocations through 2033 with committed financial support from its State and Federal partners. This ; 44 timeframe can provide a safety net to the County and provide additional time to implement land acquisition 45 and other strategies to reduce the demand for ROGO allocations and help transition land into public hI 46 ownership. 47 cv 48 The County is actively engaged in acquisitions and is requesting its State and Federal partners for assistance N 49 with implementing land acquisitions in Monroe County.The County will allocate the 1,970 new dwelling unit 50 allocations over a 10 year timeframe.If substantial financial support is provided by July 12,2018,the County W 51 will reevaluate the ROGO distribution allocation schedule and consider an extended timeframe for the 52 distribution of market rate allocations (through a comprehensive plan amendment). Further, the State and BOCC Staff Report Page 31 of 40 File 42020-067 Packet Pg. 3347 Q.3.c I County shall develop a mutually agreeable position defending inverse condemnation cases and Bert J.Harris, ZI 2 Jr. Private Property Rights Protection Act cases, with the State having an active role both directly and C 3 financially in the defense of such cases. 4 5 The County shall distribute ROGO allocations by ROGO year, as provided in the table below. 6 7 8 9 Policy 101.3.3: Monroe County shall allocate at least 20% of the annual allocation, or as may be established 10 by the State of Florida,pursuant to Administration Commission Rules, to affordable housing units as part of 11 ROGO.Any portion of the allocations not used for affordable housing shall be retained and be made available 12 for affordable housing from ROGO year to ROGO year. Affordable housing eligible for this separate 0 13 allocation shall meet the criteria specified in Policy 601.1.4 and the Land Development Code,but shall not be 14 subject to the competitive Residential Permit Allocation and Point System in Policy 101.6.4. Any parcel 0 15 proposed for affordable housing shall not be located within an area designated as Tier I as set forth under Goal 16 105 or within a Tier III-A Special Protection Area as set forth in Policy 205.1.1. c 17 CD 18 Notwithstanding the foregoing, and notwithstanding Policy 101.6.2. affordable housing ROGO allocations C 19 may be awarded to Tier I or Tier III-A properties which meet all of the following criteria: 20 1. The property contains an existing market rate dwelling unit that meets the criteria in LDC Section 138- 0 21 22(a) and is determined to be exempt from ROGO; 22 2. The proposed replacement affordable dwelling unit meets current Florida Building Code and is not a 23 mobile home; 24 3. The proposed replacement dwelling unit shall be deed restricted for a period of at least 99 years as 25 affordable housing pursuant to the standards of the Land Development Code; and 26 4. The proposed site plan for the replacement affordable dwelling unit does not propose any additional �i 27 clearing of habitat. 28 29 Policy 101.3.5: Due to the limited number of allocations and the State's requirement that the County maintain 30 a maximum hurricane evacuation clearance time of 24 hours, Monroe County shall prohibit new transient 31 residential allocations for hotel or motel rooms, campground spaces, or spaces for parking a recreational 2 32 vehicle or travel trailer until May 2022. Lawfully established transient units shall be entitled to one unit for 4- 33 each type of unit in existence before January 4, 1996 for use as a ROGO exemption. 0 34 ?: 35 Policy 101.7.1: Monroe County, the state,or other acquisition agency shall,upon a property owner's request, 36 offer to purchase the property for fair market value or permit the minimum reasonable economic use of the 37 property,if the property owner meets the following conditions: a. 38 1. they have been denied an allocation award for four successive years in the Residential (ROGO) or a. 39 Nonresidential(NROGO)Permit Allocation System; E G 40 2. their proposed development otherwise meets all applicable county, state, and federal regulations; i 41 3. their allocation application has not been withdrawn; 0 42 4. they have complied with all the requirements of the Residential or Nonresidential Permit Allocation 43 System; and 44 5. they follow the procedures for administrative relief contained in the land development regulations. 45 As used in this Policy, "minimum reasonable economic use" shall mean,as applied to any residentially zoned hI 46 parcel of record which was buildable immediately prior to the effective date of the Plan,no less than a single- 47 family residence. 48 A purchase offer is the preferred option for administrative relief, if the subject permit is for development N 49 located within: 50 1. a designated Tier I area or within the Florida Forever (or its successor) targeted acquisition areas W 51 (unless, after 60 days from the receipt of a complete application for administrative relief, it has BOCC Staff Report Page 32 of 40 File 42020-067 Packet Pg. 3348 Q.3.c I been determined no county, state or federal agency or any private entity is willing to offer to 2 purchase the parcel); 3 2. a designated Tier II or III-A (Special Protection Area); or, 4 3. a designated Tier III area on a non-waterfront lot for affordable housing. G 5 Refusal of the purchase offer by a property owner shall not be grounds for the granting of a ROGO or 6 NROGO allocation award. 7 8 Objective 101.17: Monroe County shall protect established rights of landowners affected by the provisions 9 of this Plan or the land development regulations; and, therefore adopts the following policies for the 10 determination of vested rights and beneficial use. 11 � 12 Policy 101.17.4: BENEFICIAL USE 0 13 1.It is the policy of Monroe County to ensure that neither the provisions of this Plan nor the LDC shall result 14 in an unconstitutional taking of private property.Accordingly,Monroe County shall adopt a beneficial use 0 15 procedure to provide a means to resolve a landowner's claim that a land development regulation or 16 comprehensive plan policy has had an unconstitutional effect on property in a nonjudicial forum. For the � 17 purpose of this policy,beneficial use shall mean the minimum use of the property necessary to avoid the CD 18 finding of a regulatory taking under current land use case law. �? 19 2. The relief to which an owner shall be entitled may be provided through the use of one or a combination of V 20 the following: 21 a) granting of a permit for development which shall be deducted from the Permit Allocation System; 22 b) granting of use of transferable development rights (TDRs); 23 c) Government purchase offer of all or a portion of the lots or parcels upon which there is no beneficial 24 use. This alternative shall be the preferred alternative when beneficial use has been deprived by 25 application of Chapter 138 of the Land Development Code. This alternative shall be the preferred 26 alternative for Tier I, II, or III-A(SPA) lands; 27 d) such other relief as the County may deem appropriate and adequate. 28 The relief granted shall be the minimum necessary to avoid the finding of a regulatory taking of the 29 property under state and federal law. With respect to the relief granted pursuant to this policy or Policy 30 101.7.1 (Administrative Relief), a purchase offer shall be the preferred form of relief for any land within 31 Tier I and Tier II, or Tier III-A (SPA). 2 32 3. Development approved pursuant to a beneficial use determination shall be consistent with all other 4- 33 objectives and policies of the Plan and LDC unless specifically exempted from such requirements in the 0 34 final beneficial use determination. ?: 35 4. This policy is not intended to provide relief related to regulations promulgated by agencies other than the 36 county or to provide relief for claims that are not cognizable in court at the time of application of this 37 policy. Further, the procedures established for this policy are not intended, nor do they create, a judicial a. 38 cause of action. 0. 39 5. The land development regulations shall establish standards,procedures, and remedies for an administrative c 40 determination of beneficial use. i 41 0 42 Goal 601: Monroe County shall adopt programs and policies to facilitate access by residents to adequate and 43 affordable housing that is safe, decent, and structurally sound, and that meets the needs of the population ; 44 based on type, tenure characteristics,unit size and individual preferences. 45 i 46 Objective 601.1: Monroe County shall implement the following defined policies to reduce estimated 47 affordable housing need for households in the very low, low, median and moderate income classifications. 48 N 49 Policy 601.1.4: All affordable housing projects which receive development benefits from Monroe County, 50 including but not limited to ROGO allocation award(s)reserved for affordable housing,maximum net density, 51 or donations of land, shall be required to maintain the project as affordable for a period of 99 years pursuant E BOCC Staff Report Page 33 of 40 File 42020-067 Packet Pg. 3349 Q.3.c I to deed restrictions or other mechanisms specified in the Land Development Code, and administered by ZI 2 Monroe County or the Monroe County Housing Authority. 3 4 Policy 601.1.8: Monroe County shall allocate at least 20% of the annual ROGO allocation, or as may be 5 established by the State of Florida,pursuant to Administration Commission Rules,to affordable housing units, 6 as specified in Policy 101.3.3. Affordable housing eligible for this separate allocation must meet the criteria 7 established in the Land Development Code. 8 9 Policy 601.1.9: Monroe County shall maintain land development regulations which may include density 10 bonuses, impact fee waiver programs, and other possible regulations to encourage affordable housing. 11 � 12 Objective 601.3: Monroe County shall continue implementation efforts to eliminate substandard housing and 0 13 to preserve, conserve and enhance the existing housing stock, including historic structures and sites. 2 14 0 4- 15 B. The amendment is consistent with the Principles for Guiding Development for the Florida Keys I_ 16 Area, Section 380.0552(7), Florida Statutes. ?: 17 18 For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the 19 principles for guiding development and any amendments to the principles, the principles shall be construed V 20 as a whole and no specific provision shall be construed or applied in isolation from the other provisions. o 21 � 22 (a) Strengthening local government capabilities for managing land use and development so that local 23 government is able to achieve these objectives without continuing the area of critical state concern 24 designation. 25 (b) Protecting shoreline and benthic resources, including mangroves, coral reef formations, seagrass beds, 26 wetlands, fish and wildlife, and their habitat. 27 (c) Protecting upland resources, tropical biological communities, freshwater wetlands, native tropical > 28 vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and 29 their habitat. 30 (d) Ensuring the maximum well-being of the Florida Keys and its citizens through sound economic 31 development. 32 (e) Limiting the adverse impacts of development on the quality of water throughout the Florida Keys. 33 (f) Enhancing natural scenic resources, promoting the aesthetic benefits of the natural environment, and G 34 ensuring that development is compatible with the unique historic character of the Florida Keys. 35 (g) Protecting the historical heritage of the Florida Keys. 36 (h) Protecting the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major 37 public investments,including: a. 38 39 1. The Florida Keys Aqueduct and water supply facilities; U 40 2. Sewage collection, treatment, and disposal facilities; i 41 3. Solid waste treatment, collection, and disposal facilities; 42 4. Key West Naval Air Station and other military facilities; 43 5. Transportation facilities; 44 6. Federal parks,wildlife refuges, and marine sanctuaries; v) 45 7. State parks,recreation facilities, aquatic preserves, and other publicly owned properties; 46 8. City electric service and the Florida Keys Electric Co-op; and 47 9. Other utilities, as appropriate. N 48 N 49 (1) Protecting and improving water quality by providing for the construction, operation, maintenance, and 50 replacement of stormwater management facilities; central sewage collection; treatment and disposal E 51 facilities; and the installation and proper operation and maintenance of onsite sewage treatment and 52 disposal systems. BOCC Staff Report Page 34 of 40 File 42020-067 Packet Pg. 3350 Q.3.c I (j) Ensuring the improvement of nearshore water quality by requiring the construction and operation of 2 wastewater management facilities that meet the requirements of ss. 381.0065(4)(1) and 403.086(10), as 3 applicable, and by directing growth to areas served by central wastewater treatment facilities through 4 permit allocation systems. G 5 (k) Limiting the adverse impacts of public investments on the environmental resources of the Florida Keys. 6 (1) Making available adequate affordable housing for all sectors of the population of the Florida Keys. 7 (m)Providing adequate alternatives for the protection of public safety and welfare in the event of a natural or 8 manmade disaster and for a postdisaster reconstruction plan. 9 (n) Protecting the public health, safety, and welfare of the citizens of the Florida Keys and maintaining the 10 Florida Keys as a unique Florida resource. 11 12 Pursuant to Section 380.0552(7) Florida Statutes, the proposed amendment is not inconsistent with the 0 13 Principles for Guiding Development as a whole and is not inconsistent with any Principle. 14 0. 4- le 15 C. The proposed amendment is consistent with the Part II of Chapter 163, Florida Statute (F.S.). 16 Specifically, the amendment furthers: ?: 17 18 163.3161(4), F.S. —It is the intent of this act that local governments have the ability to preserve and enhance 19 present advantages; encourage the most appropriate use of land,water, and resources, consistent with the 20 public interest; overcome present handicaps; and deal effectively with future problems that may result o 21 from the use and development of land within their jurisdictions. Through the process of comprehensive 22 planning, it is intended that units of local government can preserve, promote, protect, and improve the 23 public health,safety,comfort,good order,appearance,convenience,law enforcement and fire prevention, 24 and general welfare; facilitate the adequate and efficient provision of transportation, water, sewerage, 25 schools, parks, recreational facilities, housing, and other requirements and services; and conserve, 26 develop,utilize, and protect natural resources within their jurisdictions. 27 > 28 163.3161(6), F.S. —It is the intent of this act that adopted comprehensive plans shall have the legal status set 29 out in this act and that no public or private development shall be permitted except in conformity with 30 comprehensive plans, or elements or portions thereof,prepared and adopted in conformity with this act. 31 32 163.3164(3),F.S.— "Affordable housing"has the same meaning as in s. 420.0004(3). 33 0 34 163.3177(1),F.S.—The comprehensive plan shall provide the principles,guidelines, standards, and strategies 35 for the orderly and balanced future economic, social,physical, environmental, and fiscal development of 36 the area that reflects community commitments to implement the plan and its elements. These principles 37 and strategies shall guide future decisions in a consistent manner and shall contain programs and activities a. 38 to ensure comprehensive plans are implemented. The sections of the comprehensive plan containing the 39 principles and strategies,generally provided as goals,objectives,and policies,shall describe how the local U 40 government's programs, activities, and land development regulations will be initiated, modified, or i 41 continued to implement the comprehensive plan in a consistent manner. It is not the intent of this part to 42 require the inclusion of implementing regulations in the comprehensive plan but rather to require 43 identification of those programs, activities, and land development regulations that will be part of the 44 strategy for implementing the comprehensive plan and the principles that describe how the programs, v)i 45 activities, and land development regulations will be carried out. The plan shall establish meaningful and 46 predictable standards for the use and development of land and provide meaningful guidelines for the 47 content of more detailed land development and use regulations. 48 N 49 163.3177(6)(f), F.S. — 1. A housing element consisting of principles, guidelines, standards, and strategies to 50 be followed in: m 51 a. The provision of housing for all current and anticipated future residents of the jurisdiction. 52 b. The elimination of substandard dwelling conditions. e( BOCC Staff Report Page 35 of 40 File 42020-067 Packet Pg. 3351 Q.3.c I c. The structural and aesthetic improvement of existing housing. 2 d.The provision of adequate sites for future housing,including affordable workforce housing as defined C 3 in s. 380.0651(1)(h), housing for low-income, very low-income, and moderate-income families, 4 mobile homes,and group home facilities and foster care facilities,with supporting infrastructure and 2 5 public facilities. The element may include provisions that specifically address affordable housing for 6 persons 60 years of age or older.Real property that is conveyed to a local government for affordable 7 housing under this sub-subparagraph shall be disposed of by the local government pursuant to s. 8 125.379 or s. 166.0451. 9 e. Provision for relocation housing and identification of historically significant and other housing for CD 10 purposes of conservation,rehabilitation, or replacement. 11 f. The formulation of housing implementation programs. 12 g. The creation or preservation of affordable housing to minimize the need for additional local services 0 13 and avoid the concentration of affordable housing units only in specific areas of the jurisdiction. 14 2. The principles, guidelines, standards, and strategies of the housing element must be based on data and 0 15 analysis prepared on housing needs,which shall include the number and distribution of dwelling units by 16 type, tenure, age,rent,value, monthly cost of owner-occupied units, and rent or cost to income ratio, and � 17 shall show the number of dwelling units that are substandard. The data and analysis shall also include the CD 18 methodology used to estimate the condition of housing, a projection of the anticipated number of C 19 households by size, income range, and age of residents derived from the population projections, and the 20 minimum housing need of the current and anticipated future residents of the jurisdiction. O 21 3. The housing element must express principles, guidelines, standards, and strategies that reflect, as Vi 22 needed,the creation and preservation of affordable housing for all current and anticipated future residents 23 of the jurisdiction, elimination of substandard housing conditions, adequate sites, and distribution of 24 housing for a range of incomes and types,including mobile and manufactured homes. The element must 25 provide for specific programs and actions to partner with private and nonprofit sectors to address housing 0 26 needs in the jurisdiction, streamline the permitting process, and minimize costs and delays for affordable �i 27 housing, establish standards to address the quality of housing, stabilization of neighborhoods, and 28 identification and improvement of historically significant housing. 29 30 163.3201,F.S.—Relationship of comprehensive plan to exercise of land development regulatory authority.— 31 It is the intent of this act that adopted comprehensive plans or elements thereof shall be implemented, in 2 32 part, by the adoption and enforcement of appropriate local regulations on the development of lands and 4- 33 waters within an area.It is the intent of this act that the adoption and enforcement by a governing body of 0 34 regulations for the development of land or the adoption and enforcement by a governing body of a land ?: 35 development code for an area shall be based on,be related to, and be a means of implementation for an 36 adopted comprehensive plan as required by this act. 37 CL 38 420.0004, F.S.—Definitions.—As used in this part,unless the context otherwise indicates: a. 39 (1) "Adjusted for family size" means adjusted in a manner which results in an income eligibility level E 40 which is lower for households with fewer than four people,or higher for households with more than four i 41 people, than the base income eligibility determined as provided in subsection (9), subsection (11), 0 42 subsection(12),or subsection(17),based upon a formula as established by the United States Department 43 of Housing and Urban Development. ; 44 (2) "Adjusted gross income"means all wages, assets, regular cash or noncash contributions or gifts from 45 persons outside the household, and such other resources and benefits as may be determined to be income hI 46 by the United States Department of Housing and Urban Development, adjusted for family size, less 47 deductions allowable under s. 62 of the Internal Revenue Code. cv 48 (3) "Affordable"means that monthly rents or monthly mortgage payments including taxes,insurance,and 49 utilities do not exceed 30 percent of that amount which represents the percentage of the median adjusted 50 gross annual income for the households as indicated in subsection (9), subsection (11), subsection (12), W 51 or subsection (17). 52 (4) "Corporation"means the Florida Housing Finance Corporation. BOCC Staff Report Page 36 of 40 File 42020-067 Packet Pg. 3352 Q.3.c 1 (5) "Community-based organization" or"nonprofit organization"means a private corporation organized do 2 under chapter 617 to assist in the provision of housing and related services on a not-for-profit basis and C 3 which is acceptable to federal and state agencies and financial institutions as a sponsor of low-income 4 housing. G 5 (6) "Department"means the Department of Economic Opportunity. 6 (7) "Disabling condition" means a diagnosable substance abuse disorder, serious mental illness, 7 developmental disability, or chronic physical illness or disability, or the co-occurrence of two or more of 8 these conditions, and a determination that the condition is: 9 (a) Expected to be of long-continued and indefinite duration; and 10 (b) Not expected to impair the ability of the person with special needs to live independently with 11 appropriate supports. 12 (8) "Elderly"describes persons 62 years of age or older. 0 13 (9) "Extremely-low-income persons"means one or more natural persons or a family whose total annual 14 household income does not exceed 30 percent of the median annual adjusted gross income for households 0 15 within the state. The Florida Housing Finance Corporation may adjust this amount annually by rule to 16 provide that in lower income counties, extremely low income may exceed 30 percent of area median � 17 income and that in higher income counties, extremely low income may be less than 30 percent of area CD 18 median income. �? 19 (10) "Local public body"means any county,municipality, or other political subdivision, or any housing 20 authority as provided by chapter 421, which is eligible to sponsor or develop housing for farmworkers 21 and very-low-income and low-income persons within its jurisdiction. 22 (11)"Low-income persons"means one or more natural persons or a family,the total annual adjusted gross 23 household income of which does not exceed 80 percent of the median annual adjusted gross income for 24 households within the state, or 80 percent of the median annual adjusted gross income for households 25 within the metropolitan statistical area (MSA) or, if not within an MSA, within the county in which the 26 person or family resides,whichever is greater. �i 27 (12) "Moderate-income persons"means one or more natural persons or a family,the total annual adjusted 28 gross household income of which is less than 120 percent of the median annual adjusted gross income for 29 households within the state, or 120 percent of the median annual adjusted gross income for households 30 within the metropolitan statistical area(MSA) or, if not within an MSA, within the county in which the 31 person or family resides,whichever is greater. 2 32 (13) "Person with special needs"means an adult person requiring independent living services in order to 4- 33 maintain housing or develop independent living skills and who has a disabling condition; a young adult 0 34 formerly in foster care who is eligible for services under s. 409.1451(5); a survivor of domestic violence ?: 35 as defined in s. 741.28; or a person receiving benefits under the Social Security Disability Insurance 36 (SSDI)program or the Supplemental Security Income(SSI)program or from veterans' disability benefits. 37 (14)"Student"means any person not living with his or her parent or guardian who is eligible to be claimed CL 38 by his or her parent or guardian as a dependent under the federal income tax code and who is enrolled on 0. 39 at least a half-time basis in a secondary school, career center, community college, college,or university. c 40 (15) "Substandard"means: i 41 (a) Any unit lacking complete plumbing or sanitary facilities for the exclusive use of the occupants; 0 42 (b)A unit which is in violation of one or more major sections of an applicable housing code and where 43 such violation poses a serious threat to the health of the occupant; or 44 (c)A unit that has been declared unfit for human habitation but that could be rehabilitated for less than 45 50 percent of the property value. U)i 46 (16) "Substantial rehabilitation" means repair or restoration of a dwelling unit where the value of such 47 repair or restoration exceeds 40 percent of the value of the dwelling. N 48 (17) "Very-low-income persons"means one or more natural persons or a family,not including students, CD N 49 the total annual adjusted gross household income of which does not exceed 50 percent of the median 50 annual adjusted gross income for households within the state,or 50 percent of the median annual adjusted W 51 gross income for households within the metropolitan statistical area (MSA) or, if not within an MSA, 52 within the county in which the person or family resides,whichever is greater. BOCC Staff Report Page 37 of 40 File 42020-067 Packet Pg. 3353 Q.3.c I N 2 420.502, F.S.—Legislative findings.- 3 (8)(b) It is necessary to create a state housing finance strategy to provide affordable workforce housing 4 opportunities to essential services personnel in areas of critical state concern designated under s. 380.05 2 5 for which the Legislature has declared its intent to provide affordable housing, and areas that were 6 designated as areas of critical state concern for at least 20 consecutive years before removal of the 7 designation.The lack of affordable workforce housing has been exacerbated by the dwindling availability 8 of developable land, environmental constraints,rising construction and insurance costs, and the shortage 9 of lower-cost housing units.As this state's population continues to grow,essential services personnel vital 10 to the economies of areas of critical state concern are unable to live in the communities where they work, C 11 creating transportation congestion and hindering their quality of life and community engagement. 12 13 420.503, F.S.-Definitions.- 14 (18) "Essential services personnel" means natural persons or families whose total annual household 0 15 income is at or below 120 percent of the area median income, adjusted for household size, and at least 16 one of whom is employed as police or fire personnel, a child care worker, a teacher or other education ?: 17 personnel,health care personnel, a public employee,or a service worker. CD 18 C 19 420.5095, F.S. Community Workforce Housing Innovation Pilot Program.— V 20 (1) The Legislature finds and declares that recent rapid increases in the median purchase price of a home o 21 and the cost of rental housing have far outstripped the increases in median income in the state,preventing 22 essential services personnel from living in the communities where they serve and thereby creating the 23 need for innovative solutions for the provision of housing opportunities for essential services personnel. 24 (2) The Community Workforce Housing Innovation Pilot Program is created to provide affordable rental 25 and home ownership community workforce housing for essential services personnel affected by the high 0 26 cost of housing, using regulatory incentives and state and local funds to promote local public-private 27 partnerships and leverage government and private resources. > 28 (3) For purposes of this section, the term: 29 (a) "Workforce housing" means housing affordable to natural persons or families whose total annual 30 household income does not exceed 140 percent of the area median income, adjusted for household size, 31 or 150 percent of area median income, adjusted for household size, in areas of critical state concern 2 32 designated under s.380.05,for which the Legislature has declared its intent to provide affordable housing, 4- 33 and areas that were designated as areas of critical state concern for at least 20 consecutive years prior to 0 34 removal of the designation. � 35 36 125.01055,F.S.—Notwithstanding any other provision of law, a county may adopt and maintain in effect any 37 law,ordinance,rule,or other measure that is adopted for the purpose of increasing the supply of affordable CL 38 housing using land use mechanisms such as inclusionary housing ordinances. 0 39 G 40 V. PROCESS 41 42 Comprehensive Plan Amendments may be proposed by the Board of County Commissioners the 43 Planning Commission, the Director of Planning, or the owner or other person having a contractual 44 interest in property to be affected by a proposed amendment. The Director of Planning shall review and v)i 45 process applications as they are received and pass them onto the Development Review Committee and 46 the Planning Commission. N 47 48 The Planning Commission shall hold at least one public hearing. The Planning Commission shall review 49 the application, the reports and recommendations of the Department of Planning & Environmental 50 Resources and the Development Review Committee and the testimony given at the public hearing. The BOCC Staff Report Page 38 of 40 File 42020-067 Packet Pg. 3354 Q.3.c I Planning Commission shall submit its recommendations and findings to the Board of County 2 Commissioners (BOCC). The BOCC holds a public hearing to consider the transmittal of the proposed 3 comprehensive plan amendment, and considers the staff report, staff recommendation, and the testimony 4 given at the public hearing. The BOCC may or may not recommend transmittal to the State Land 5 Planning Agency. The amendment is transmitted to State Land Planning Agency, which then reviews 6 the proposal and issues an Objections, Recommendations and Comments (ORC) Report. Upon receipt 7 of the ORC report, the County has 180 days to adopt the amendments, adopt the amendments with ?� 8 changes or not adopt the amendment. 9 10 VI. STAFF RECOMMENDATION 11 G 12 Based on the BOCC direction to staff on February 19, 2020 to start the process to accept the 300 13 workforce housing units and on July 15, 2020, to accept the 300 workforce housing early 0 le 14 evacuation unit building permit allocations to be used in exchange for existing affordable 15 allocations at multifamily developments (for developers that agree to the early evacuation ?: 16 restriction) and the affordable housing allocations returned to the County (returned in the 17 exchange) be set aside and banked for takings cases (bank them within an administrative relief 18 pool), staff recommends approval. 19 .2 20 The BOCC's policy direction limits the use of the 300 workforce housing early evacuation unit building 21 permit allocations for only the exchange of affordable allocations and not for the development of new 22 (not approved or built) units, thereby not increasing current development potential. As such, the 23 workforce housing early evacuation unit building permit allocations would be used at sites with existing 0 24 approvals/dwelling units and require early evacuation of the occupants,but should not otherwise change 25 the development on the site or countywide. The BOCC direction of making this program for the 26 exchange of allocations, maintains the County's focus on redevelopment and infill by swapping 27 allocations types and including additional requirements (ex: early evacuation) on existing approvals and 28 not incentivizing new development or encroachments into habitat with new development. 29 0 30 Further, the BOCC policy direction included that the affordable allocations returned to the County in 31 exchange for workforce housing early evacuation unit allocations shall be banked to resolve takings. ?: 32 Banking these units may provide the County with an option to address potential liability for future 33 inverse condemnation cases and Bert J. Harris, Jr. Private Property Rights Protection Act cases for the 34 undeveloped,privately-owned parcels in the County which far exceed the remaining permit allocations. 35 36 Staff does not recommend approval of the general acceptance of the 300 workforce housing early G 37 evacuation unit building permit allocations, without the criteria and provisions explained above and 38 included in proposed language as identified in Section III (proposed comprehensive plan text 39 amendments) of this Report. 40 41 VIII.EXHIBITS i 42 43 1. May 2, 2018, Governor Rick Scott press release outlining an initiative to the Florida Department ' 44 of Economic Opportunity ("DEO")for a Keys Workforce Housing Initiative. 45 2. DEO provided preliminary draft language based on the minimum requirements established in the 46 Keys Workforce Housing Initiative to use as a starting point. 47 3. County Takings Claims Bill Whitepaper BOCC Staff Report Page 39 of 40 File 42020-067 Packet Pg. 3355 Q.3.c 1 4. Administrative Law Judge recommended order recommending approval of Marathon,Key West, 2 and Islamorada's respective ordinances accepting the 300 ROGOs under the Workforce Housing 3 Initiative. 4 5. Islamorada (Ordinance 19-03) Comprehensive Plan amendment to accept the 300 Workforce 5 Housing units 6 6. Marathon (Ordinance 2018-09) Comprehensive Plan amendment to accept the 300 Workforce 7 Housing units 8 7. Key West (Ordinance 19-06) Comprehensive Plan amendment to accept the 300 Workforce 9 Housing units 10 8. Table of Summary of County Actions on 300 Workforce early evacuation units 11 9. DEO Final Order DEO-20-032 upholding the three City amendments. 0 12 2 G 4- 0 r9 N i 2 G 4- 0 r9 i G i G i cv CD cv U BOCC Staff Report Page 40 of 40 File 42020-067 Packet Pg. 3356 A�—MI, "�gli, UDIIPI,g P N FOR IMMEDIATE RELEASE CONTACT: GOVERNOR'S PRESS OFFICE May 2, 2018 (850)717-9282 mediaeo .rnyfiorida.corn Gov. Scott Directs DEO to Enhance Workforce Housing in the Florida Keys U) 0 TALLAHASSEE, Fla. — Governor Scott today directed the Department of Economic Opportunity (DEO)to propose enhanced workforce housing in the Florida Keys as part of the continued efforts to recover from the tremendous impact Hurricane Irma had on the Keys. Hurricane Irma destroyed much c of the housing that served the workforce population and the proposed Keys Workforce Housing Initiative will allow local governments to grant additional building permits for rental properties. This W initiative will be presented to the Florida Cabinet at the next meeting. y Governor Scott said, "Hurricane Irma left a devastating impact on our state, especially in the Florida Keys and since the storm we have been working hard to rebuild even stronger than before. For N� business owners across the Keys, the availability of affordable workforce housing has been a challenge that was compounded by Hurricane Irma. The Keys Workforce Housing Initiative will provide i much-needed access to workforce housing, allowing businesses the opportunity to grow while providing a plan to ensure Keys residents can evacuate safely before a storm." ) 0 DEO is charged with reviewing local development decisions in the Florida Keys due to its legislative i designation as an Area of Critical State Concern. State law requires that growth be limited in the Keys to ensure that residents can evacuate safely within 24 hours in advance of a hurricane. To meet the increased demand for workforce housing, the innovative Keys Workforce Housing Initiative will require new construction that participates to commit to evacuating renters in the 48-hour window of evacuation. The initiative will allow up to 1,300 new building permits for workforce housing throughout the Florida Keys. Local governments that choose to participate in the initiative will work with DEO to amend their comprehensive plans to allow for additional building permits that meet these safety requirements. Cissy Proctor, Executive Director of DEO, said, "As I have toured the damage from Hurricane Irma, the number one priority of business and community leaders is the need for more workforce housing. We are proud to provide an option to local governments that will help businesses have the talent they Packet Pg. 3357 need to remain in the Keys and grow their companies. This solution will not only provide workforce housing for private-sector businesses but public servants, like law enforcement and teachers, as well. Our agency is committed to working with our partners in the Keys to provide ample workforce housing without compromising the safety of Floridians. We appreciate our partners at the Florida Division of Emergency Management for working with us to make sure Keys residents are still able to safely evacuate." Representative Holly Raschein said, "Hurricane Irma pushed the affordable housing problem in the Florida Keys to a critical state, decimating an already strained stock of housing for our workforce. I N have discussed this concern with Governor Scott and the Department of Economic Opportunity (DEO) both in Tallahassee and during the Governor's many visits to the Keys as he's lead us through our recovery efforts. The plan Governor Scott has directed DEO to bring before Cabinet is a creative solution to the most pressing recovery challenge still facing the Florida Keys and I encourage all Cabinet members to support this proposal." Wes Maul, Director of the Florida Division of Emergency Management, said, "Our agency's primary goal is the safety of Florida residents during disasters. The Keys Workforce Housing Initiative ensures the safety of tourists and residents of the Keys during major storms, while allowing critical economic development activities to continue. We appreciate DEO's partnership in this endeavor." U c #1# r9 CL i i 0 U 0 LU Packet Pg. 3358 Goal X—Workforce-Affordable Housing Initiative. To support Monroe County's workforce by alleviating constraints on affordable housing the County shall participate in the Workforce-Affordable Housing Initiative, as approved during the June 13, 2018 meeting of the Administration Commission. The Workforce-Affordable Housing Initiative will require new construction that participates to commit to evacuating renters in the 48-hour window of evacuation. 0 Objective XX—Provide Workforce-Affordable Housing Building Permit Allocations. The County shall establish a new limited category (needs a name-Phase One Affordable > (POA)????) for 300 workforce-affordable building permit allocations to participate in the Workforce-Affordable Housing Initiative. These allocations are in addition to the maximum allocations identified in Rules 28-18, Florida Administrative Code. The County shall be responsible for the management, distribution, and enforcement of requirements associated with the POA allocations. Monroe County shall ensure adherence to these requirements through o implementing the policies of this objective. 0 Policy X.1.1—Distribution of Workforce-Affordable Housing Allocations. Workforce- affordable housing allocations shall be distributed in accordance with (insert policy o describing BPAS ranking procedures or ranking procedures specific to POA). CD r9 Policy X.1.2 - Specific Standards and Requirements for Workforce-Affordable Housing. 0 Workforce-affordable housing units built under this program shall: o a. be multifamily structures, LU b. be rental units, c. require, at a minimum, adherence to the latest edition of the Florida Building Code as published by the Florida Building Commission, d. not be placed in the V-Zone or within the Coastal Barrier Resource Systems; e. require on-site property management, , f. comply with applicable locational criteria and densities for multifamily affordable housing units; g. incorporate sustainable and resilient design principles into the overall site design, h. ensure accessibility to employment centers and amenities; i. require deed-restrictions ensuring: i. the property remains workforce-affordable housing in perpetuity, ii. tenants evacuate during the period in which transient units are required to evacuate, i iii. rental agreements contain a separate disclosure requiring renters to 1-- acknowledge that failure to adhere to the evacuation requirement could result in severe penalties, including eviction, to the resident, i iv. onsite property managers are formally trained in evacuation LU procedures. cv Policy X.1.3—Evacuation exemptions. Persons living in workforce-affordable housing LU who are exempt from evacuation requirements of Policy X.1.2.i.1 include all first responders, correction officers, health care professionals, or other first-response workers m required to remain during an emergency, provided the person claiming exemption under this policy has faithfully certified their status with property management. Packet Pg. 3359 Q.3.e Policy'X.1.4—ADA Compliance. All workforce-affordable housing developments must demonstrate compliance with all applicable federal standards for accessibility for persons with disabilities. Policy X.1.4-Evaluation and Report. Monroe County shall Local governments participating in the program shall provide to the state land planning agency an Annual Report by July 1 (or January 1???) of each year indicating the number of workforce-affordable units built, occupancy rates, and compliance with the requirement to evacuate the units in the Phase I evacuation. 0 U 0 4- 0 r9 0 U 0 i i i i cv Packet Pg. 3360 xA hi b 1:: 3 0.3.f MONROE COUNTY THE FLORIDA KEYS AREA OF CRITICAL STATE CONCERN PRIVATE PROPERTY RIGHTS PROTECTION CHALLENGES The Florida Keys are designated as an Area of Critical State Concern (ACSC) by the State Legislature,pursuant to F.S. 380.05. This designation gives the State oversight authority over development in the Florida Keys and limits the number of residential housing permits that Monroe County and its municipalities may issue each year. The State imposes these growth restrictions in order to provide for the safety of residents in the event of a hurricane evacuation and to protect the significant natural resources. As a direct result of State's legislative and administrative growth restriction mandates,the County and municipalities have adopted local ordinances such as Rate of Growth Ordinance (ROGO) to fairly and competitively allocate the limited number of permits. The most recent hurricane modeling completed in 2012 by the Department of Economic Opportunity(DEO),pursuant to Rule 28-20.140, F.A.C., found that no more than 10 more years' worth of building permits (a maximum of 3,550 permits) shall be issued for the Florida Keys without exceeding the statutory maximum allowed 24-hour evacuation clearance. In March 2013, the Governor and Cabinet, sitting as the State Administration Commission, approved the 0 recommendation to allocate no more than 3,550 building permits. To date, a total 2,129 permits of the 3,550 permits have been allocated, and 1,421 remain to be allocated. The Florida CD Keys are fast approaching "buildout,"at which point additional permits may not be allocated by the State. C The State of Florida and the local governments of the Florida Keys may face significant liability because the cv number of undeveloped, privately-owned parcels in the Florida Keys ACSC far exceeds the remaining permit , allocations, leaving property owners without rights to build on their properties, as demonstrated in Table 1. Table 1:2018 Inventory of Privately-Owned,Vacant Parcels in Florida Keys and Approximate Land Value 2018 2018 2018 AREA NUMBER OF AVERAGE PARCEL APPROXIMATE VACANT PARCELS VALUE LAND VALUE* Key West ACSC 133 $397,235 $ 52,832,202 _ Unincorporated MC 7,033 $85,858 $603,840,749 Marathon 1,349 $100,481 $135,548,863 E Layton 24 $123,928 $ 2,974,267 Key Colony Beach 81 $347,988 $ 28,187,020 Islamorada 1,070 $158,061 $169,125,630 TOTAL PARCELS 9,690 $102,426 $992,508,731 TOTAL REMAINING ALLOCATIONS 1,421 r9 X PARCELS TO PURCHASE AFTER ALLOCATIONS 8,269 $102,426 $846,961,269 *Usnig December 2018 Monroe County Property Appraiser data REQUEST/NEED: TO PROTECT PRIVATE PROPERTY RIGHTS AND REDUCE LIABILITY: 1) SUPPORT KB 587/SB 748 `TAKINGS CLAIMS IN AREAS OF CRITICAL STATE CONCERN' and 2) SUPPORT STATE FUNDING FOR LAND ACQUISITION IN FLORIDA KEYS ($5M a year from Florida Forever, as authorized in the Florida Keys Stewardship Act) Packet Pg. 3361 Q.3.f TAKINGS:CASES,JOINT DEFENSE AND LIABILITY and the need for THE FLORIDA KEYS PROPERTY RIGHTS PROTECTION ACT The State-imposed growth limits have already prompted a number of inverse condemnation and other property rights related suits when those property owners have been unable to obtain permits to build on undeveloped lots. N Since 2005, Monroe County and the State of Florida have been jointly defending multiple takings cases. The State and C the City of Marathon operated under a similar partnership in the two cases where that City was named as a defendant C along with the State. This partnership provides for mutual litigation support and cooperation in exchange for an o understanding that each entity would bear half of any liability imposed. The alternative to the joint defense of these cases would be for the State and the local governments to both expend public resource litigating against each other over the issue of apportionment, which would cause both unnecessary expense to the taxpayer and delay the property owner's receipt of full compensation. Such litigation between the State and County would severely undermine the cooperative approach taken to date which has resulted in successful defenses in twenty-six(26) of the twenty-eight(28) claims. 0 In the two cases where liability was found, the joint defense partnership resulted in much lower damage awards than the property owners were seeking. In both cases, the Trial Court imposed the liability jointly and severally against both the State and the County, leaving both entities responsible for the full payment of the judgment. 4- 0 With joint and several liability and given the State's lengthy appropriations process,Florida Keys' property owners who CD obtain inverse condemnation and other property-rights related compensation awards may not have their awards timely paid due to delays in the State's lengthy and onerous appropriations process. For local governments, this might mean an undue burden of being sued for the entirety of the judgment, or having to pay accruing interest. cv The Florida Keys Property Rights Protection Act will: • >Provide the property owner whose property a Court has determined has been taken as a result of the State-imposed growth limits with a more expedient and certain process for recovering the compensation' guaranteed under the U.S. and Florida Constitutions against both the local government and the State. • Clarify that the State and the local government that share joint and several liability are separately obligated to pay half of such judgments, including interest, attorneys'fees and costs. • Permit a local government found liable with the State as a result of claims based upon the State-imposed ` y growth limits to satisfy the local government's 5'0%share of that liability to the property owner pursuant to its own budgetary procedures and cycle. r9 • Protect the financial interests of the the local government(and its local taxpayers)that shares joint and several liability with the State from the being sued for the entirety of the judgment, or being negatively LU .. impacted by accruing interest on such judgments due to delays in the State's appropriation process. • Provide for an efficient and expedient method for the State to reimburse the local government for the State's half of any money paid by that local government for property rights claims brought in federal court. • Have a funding source: the 2014 voter-approved Florida Water and Land Conservation Initiative (Amendment 1) will generate an estimated $648 million to ;$1 billion a year for 20 years to fund the Land Acquisition Trust Fund,which could be used as asource offundingto pay inverse condemnation awards against the State. 2:1�P- �1i 'qg�c M o ii r o e C' o u ii i c, c, N t- A R Y 2 0 22 0 Packet Pg. 3362 Q.3.f LAND ACQUISITION STRATEGIES TO REDUCE TAKINGS LIABILITY 1) STATE LAND ACQUISITION EFFORTS (via Florida Keys Stewardship Act and Florida Forever): Land acquisition is a key strategy to reduce the future takings liability.Recognizing this,the State legislature passed the Florida Keys Stewardship Act in 2016 authorizing S5M a year (for 10 years for a total of S50M) for land acquisition in the Florida Keys under the State's primary land buying program,the Florida Forever Program. N Since 2016, with the passage of the Stewardship Act, Florida DEP/DSL has spent/encumbered $3.28M, retiring 68.82 development rights. State DSL should aggressively pursue land acquisition in the Florida Keys because: OVER 3500 PRIVATELY-OWNED VACANT,UNDEVELOPED PARCELS LIE WITHIN THE FLORIDA FOREVER PROJECT BOUNDARIES (Table 2) Table 2:Analysis of Privately-Owned,Vacant Parcels Within Florida Forever Projects in the Florida Keys WITHIN THE FLORIDA FOREVER BOUNDARY NOT WITHIN THE FLORIDA FOREVER TOTAL COMBINED O NO. 2018 2018 NO. 2018 2018 NO. 2018 0) AREA OF AVERAGE APPROX OF AVERAGE APPROX OF APPROX U PARCELS PARCEL TOTAL PARCELS PARCEL TOTALLAND PARCELS TOTALle VALUE LAND VALUE VALUE VALUE LAND VALUE Key West 0 $0 $0 133 $397,235 $52,832,202 133 $52,832,202 CD Unincorp MC 3,039 $14,348 $43,603,716 3,994 $140,270 $560,237,033 7,033 $603,840,749 W Marathon 414 $10,948 $4,532,519 935 $140,124 $131,016,344 1,349 $135,548,863 tV Layton 4 $98 $392 20 $148,694 $2,973,875 24 $2,974,267 tCD V Key Colony 0 $0 $0 81 $347,988 $28,187,020 81 $28,187,020 Islamorada 77 $202,710 $15,608,696 993 $154,599 $153,516,934 1,070 $169,125,630 3,534 $18,038 $63,745,323 6,156 $150,871 $928,763,408 9,690 $992,508,731 Allocations to be 1,421 applied CL After allocations 8,269 $846,961,269 CL 2) COUNTY LAND ACQUISITION STRATEGIES AND COMMITMENT: y A) Local Land Acquisition Program: Monroe County Board of County Commissioners implemented a land 2 acquisition program to supplement the long standing efforts of the Monroe County Land Authority and those of y the State of Florida. Since passage of the Stewardship Act, Monroe County and the Monroe County Land Authority and have budgeted over $19.5M for land acquisition and spent/encumbered to date $10.2M, retiring 203.76 c� development rights. (County budgeted funds from its infrastructure sales tax fund.) W B) Two willing seller programs to retire development rights have been implemented by Monroe County: • Density Reduction Lot acquisition program: Residential property owners sell parcels with development U rights to the County.Density Reduction Lots may later be offered for sale with a deed restriction to prohibit the development of the property with new housing units. The revenue derived from the sale of these deed restricted properties can help replenish the funds necessary to retire more development rights. • Less Than Fee acquisition program: Residential property owners that own an adjacent vacant property may sell the development right on that vacant property to the County in exchange for legally allowed accessory uses on the adjacent parcel such as a pool, open yard or garage (and they retain ownership.) There are about 700 parcels in this category. Monroe CoriTi ( t' i� E, c c 20 -20 Packet Pg. 3363 Q.3.f C) County policies that help transition land into public ownership and incentivize development that eliminates privately owned vacant parcels: • Incentivize Dedication of Land — County adopted an amendment to encourage additional land dedication by providing additional points in ROGO/NROGO. • Discouragement Policy— County adopted an amendment to discourage private applications for FLUM amendments that increase density and intensity,as required by Rule 28-20.140,F.A.C.,unless mitigated by providing land(acreage or Improved Subdivision [IS] parcels) to the County. d_n • Created Commercial FLUM category (no residential component) - County adopted an amendment to :5 provide options to re-designate property for other nonresidential uses (Provides alternative uses of 0 property). • Revised NROGO to make the process simpler and encourage nonresidential redevelopment and development. Created the NROGO banks of untilized floor area to make NROGO easier to award. W • Revised Lot Aggregation to encourage additional aggregation by increasing points awarded in ROGO. • Revised Land Dedication in ROGO to provide additional points and options for dedicating land to the CD County. y • Revised transfer procedure for ROGO exemptions to provide the ability to transfer a market rate unit c from one location to another with the provision of affordable housing. • Adopted an Interim Development Ordinance limiting the transfer of market rate ROGO exemptions to 4- single-family residential legally platted lots (dispersing development rights and not grouping multiple 0 development rights on a single property). ?: CD CD • Adopted land acquisition priorities (Policy 102.4.2) to balance growth management,habitat protection, M retirement of development rights,reduction of density&intensity, future build-out of the Florida Keys, climate change, sea level rise, affordable housing, etc. r9 LU Contacts: • Roman Gastesi, Countv Administrator; 305-292-4441, gastesi-roman@monrocolintv-fl.gov • Bob Shillinger; CountvAttorney, 305-292-3470, shillinger-bob@monrocounty fl.gov • Christine Hurley,Assistant CountvAdministrator, 305-289-2517, hurley-christine@monrocounty fl.gov • Lisa Tennyson, Legislative Affairs Director, 305-292-4444, tennyson-lisa@monrocolintv-fl.gov 41 P e M o n roe Cor7n ( t' i� c, c c' ,c Nr- A RY ono R&tP!acket Pg. 3364 STATE OF FLORIDA N DIVISION OF ADMINISTRATIVE HEARINGS c CECELIA MATTINO, Petitioner, vs. Case No. 18-625OGM c CITY OF MARATHON, FLORIDA, 2 0 Respondent. NAJA GIRARD, r9 Petitioner, vs. Case No. 19-1526GM 0 CITY OF KEY WEST, FLORIDA, Respondent. / 0 CATHERINE BOSWORTH, 2 Petitioner, CD vs. Case No. 19-1839GM 0 ISLAMORADA, VILLAGE OF ISLANDS, FLORIDA, m Respondent. 0 RECOMMENDED ORDER A duly-noticed final hearing was held in this matter in Marathon, Florida, on December 9 through 13, 2019, before Suzanne Van Wyk, an Administrative Law Judge assigned by the Division of Administrative Hearings. Packet Pg. 3365 Q.3.g APPEARANCES N For Petitioners: Richard J. Grosso, Esquire Richard Grosso, P.A. 6511 Nova Drive, Mail Box 300 Davie, Florida 33317 Sarah Hayter, Esquire Shai Ozery, Esquire Robert Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, FL 33060 2 0 For Respondents City of Marathon; and Islamorada, Village of Islands, 0 Florida CD Nicole Pappas, Esquire W Barton Smith, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 For Respondent, City of Key West: George Wallace, Esquire City of Key West, City Attorney's Office �I 1300 White Street Post Office Box 1409 Key West, Florida 33040 0 STATEMENT OF THE ISSUE Whether City of Marathon ("Marathon") Comprehensive Plan Amendment c 2018-01, adopted on October 23, 2018 (the "Marathon Plan Amendment"); City of Key West ("Key West") Comprehensive Plan Amendment 19-06, 0 adopted on April 4, 2019 (the "Key West Plan Amendment"); and Islamorada, Village of Islands ("Islamorada") Comprehensive Plan Amendment 19-03, adopted on March 5, 2019 (the "Islamorada Plan Amendment") (collectively, 2 Packet Pg. 3366 Q.3.g the "Plan Amendments"), are "in compliance," as that term is defined in N section 163.3184(1)(b), Florida Statutes (2019).1 c PRELIMINARY STATEMENT On November 26, 2018, Petitioner, Cecilia Mattino, filed a Petition with the Division of Administrative Hearings ("Division") challenging the Marathon Plan Amendment as not based on relevant and appropriate data 0 and analysis and internally inconsistent with the City of Marathon Comprehensive Plan (the "Marathon Plan"), among other allegations, in c violation of the Community Planning Act chapter 163, part II, Florida CD Statutes ("the Act"). Ms. Mattino's petition was assigned to the undersigned W as Case No. 18-6250. On March 1, 2019, Petitioner, Naja Girard, filed a Petition with the Division challenging the Key West Plan Amendment as violative of the Act on many of the same grounds. Ms. Girard's Petition was assigned to the 0 undersigned as Case No. 19-1526. i On April 9, 2019, Petitioner, Catherine Bosworth, filed a Petition with the CD Division challenging the Islamorada Plan Amendment as violative of the Act 0 on many of the same grounds as the other Petitioners. Ms. Bosworth's Petition was assigned to Administrative Law Judge Francine Ffolkes as Case c No. 19-1839. That case was transferred to the undersigned on April 22, 2019. 0 Petitioners filed an Amended Joint Motion to Consolidate ("the Motion") the three cases, to which Respondents, Marathon and Islamorada, filed responses in opposition. Following a telephonic hearing on the Motion, the undersigned entered an Order of Consolidation on May 10, 2019. Except as otherwise noted, all references to the Florida Statutes are to the 2018 version, U which was in effect when the Plan Amendments were adopted. 3 Packet Pg. 3367 Q.3.g The consolidated cases were scheduled for final hearing on October 7 N through 11, 2019; however, due to the undersigned's family medical emergency, the final hearing was continued and rescheduled to December 9 c through 13, 2019. The final hearing commenced as rescheduled in Marathon, Florida. Petitioners testified on their own behalves, and offered the testimony of: c Rebecca Jetton, accepted as an expert in comprehensive planning and planning in the Florida Keys; Martin Senterfitt, the Monroe County Director of Emergency Management; and Richard F. Ogburn, accepted as an expert in c comprehensive planning. Petitioners introduced the following Exhibits which W were admitted in evidence: 2, 5, 6, 8, 10, 11, 34, 39, 47, 48, 54, 55, 60, 70, 71, 73 through 77, 83, 86 through 91, 94, 97, 100 through 102, 105, 106, 108, 117, 118 127 through 129 131 139 (appendix 1C) 140 147 151 158 188 189 c 221, 223, and 228. Petitioners proffered Exhibit 111, which was not admitted in evidence, but travels with the record of this proceeding. 0 i Respondents offered the testimony of: George Garrett, Marathon's planning director; Ty Harris, Islamorada's planning director; and Patrick CD Wright, Key West's former planning director; each of whom is accepted as an 0 expert in comprehensive planning; Michael Alfieri, accepted as an expert in hydrogeology and karstology; William Precht, accepted as an expert in c marine ecology; and Joaquin Vargas, accepted as an expert in transportation planning. 0 Respondents introduced Exhibits 1 through 17, 20 through 66, 68 through 83, 85 through 131, 133, and 135 through 153, which were admitted in evidence. 4 Packet Pg. 3368 Q.3.g The parties received the five-volume Transcript of the final hearing on N February 3, 2020,2 and on February 6, 2020, Petitioners requested an extension of time to file proposed recommended orders by March 13, 2020, c which was granted. The parties' Proposed Recommended Orders were timely filed and have been carefully considered by the undersigned in the preparation of this Recommended Order. 0 Evidentiary Considerations Petitioners sought to introduce the deposition testimony of two additional witnesses: Kathleen McKee and Donald Maynard. While the deposition c CD transcripts were admitted, they constitute hearsay for which no exception W under either section 90.803 or 90.804, Florida Statutes, applies. Section 90.803(22), which provides an exception from hearsay for former testimony given in a deposition taken in the course of the same proceeding, if the party c against whom the deposition is offered had the same motive to develop the testimony, has been declared unconstitutional. See Grabau v. Dept of Health, 0 816 So. 2d 701, 709 (Fla. 1st DCA 2002). Further, Petitioners were unable to i make the required showing of unavailability in order to introduce the former testimony of the two witnesses under the hearsay exception provided in CD section 90.804(2). Petitioners offered no non-hearsay evidence to corroborate 0 the hearsay depositions of Ms. McKee and Mr. Maynard. 0 Respondents objected to the introduction of a number of exhibits relied upon by Petitioners' expert planning witness, Ms. Jetton, in formulating her 0 opinions regarding whether shallow injection wells contribute to nearshore water pollution. The articles were written by marine scientists, biologists, microbiologists, chemists, and other experts, and published in a variety of scientific journals. An expert may rely upon facts or data of which the expert 2 The official Transcript was not filed with the Division until March 16, 2020, although the parties provided the undersigned with a copy prior to that date. 5 Packet Pg. 3369 Q.3.g does not have personal knowledge, if the facts and data are the type N reasonably relied upon by experts in the particular field to support the opinion. § 90.704, Fla. Stat. The expert may even rely upon inadmissible evidence (i.e., hearsay) if the evidence is of a type "reasonably relied upon by experts in the subject to support the opinions expressed[.]" Id. In this case, Respondents' objections are well-taken. Ms. Jetton is an expert in comprehensive planning, very experienced and well-versed in the planning c history of the Keys, particularly as a former employee of the state agency with oversight over planning and development in the Keys. However, Ms. Jetton is not a biologist, chemist, marine scientist, or other scientific c CD expert who would typically rely upon the studies and publications in W scientific journals for formulating an opinion on, for example, "the fate and transport of sewage in the subsurface environment and the potential for contamination of marine surface waters[.]"3 The documents on which Ms. Jetton relied in formulating her expert 0 planning opinions were admitted, but those documents remain i uncorroborated hearsay. The undersigned has given the appropriate weight to Ms. Jetton's testimony on these issues. CD FINDINGS OF FACT The Parties and Standing c 1. Ms. Mattino resides in Marathon with her daughter and her fiance. She submitted written objections to Marathon regarding the Marathon Plan 0 Amendment prior to the October 23, 2018 public hearing at which Marathon adopted the Plan Amendment. 3 John H. Paul, Viral Tracer Studies Indicate Contamination of Marine Waters by Sewage Disposal Practices in Key Largo, Florida,Applied and Envtl. Microbiology, 2230-34(June 1995). 6 Packet Pg. 3370 Q.3.g 2. Ms. Mattino's daughter is severely disabled, requires specialized N equipment (including a specialized wheelchair), and requires full-time care, for which Ms. Mattino relies upon a variety of caretakers. Her daughter has to be transported in a specially-equipped vehicle to accommodate the wheelchair and other equipment. 3. In the event Ms. Mattino is required to evacuate for a hurricane, she will need to bring an additional vehicle to transport her daughter's medical 0 equipment, which requires additional personnel. 4. Prolonged car rides are dangerous for Ms. Mattino's daughter because she has a seizure disorder that worsens when she is aggravated or stressed. c CD Prolonged car rides are also stressful for Ms. Mattino, who has high blood W pressure and has had several heart attacks. 5. Ms. Mattino evacuated for Hurricane Irma and testified that she encountered heavy traffic, which was made more stressful by the need to stop approximately every two hours to attend to her daughter's medical needs. 6. Ms. Mattino claims that if the Plan Amendments increase the amount 0 of time it takes her to evacuate the Florida Keys before a hurricane, it would i cause additional stress and would put her and her daughter's health at risk. Ms. Mattino maintains these concerns are unique to her and her family and CD that emergency evacuation is more difficult and dangerous for her and her 0 family than it is for the general public. 7. Ms. Bosworth resides in Islamorada with her daughter, son-in-law, and c their two children. She submitted written objections to the Islamorada Plan Amendment prior to the April 4, 2019 public hearing at which Islamorada 0 adopted the Plan Amendment. 8. Ms. Bosworth previously evacuated for Hurricanes Andrew and Irma, which required preparation time to gather her pets, pack pet supplies, and LU secure her boat, as well as secure her outdoor belongings and put up her hurricane shutters. Securing her boat and putting up her shutters requires E the assistance of her son-in-law. Ms. Bosworth believes her circumstances are 7 Packet Pg. 3371 Q.3.g unique because her son-in-law is a fire fighter and paramedic in Parkland, N Florida, and is not always available to help her prepare her property for a hurricane. c 9. Ms. Bosworth claims that if traffic congestion increases or worsens as a result of the Plan Amendments, it would affect her and her family because she would be concerned that she would get stuck on the highway while trying to evacuate for a hurricane. Further, Ms. Bosworth testified that she and her 0 family enjoy going out on the boat and snorkeling and that if Islamorada's nearshore water quality became degraded or impaired it would affect her 0 quality of life. CD 10. Ms. Girard is a resident of Key West. She submitted oral or written W objections to the Key West Plan Amendment prior to the March 5, 2019 public hearing at which Key West adopted the Plan Amendment. 11. Ms. Girard testified that, due to her and husband's marine-based business and residential tenants, she and her husband would wait until the very last minute to evacuate regardless of when an evacuation advisory was 0 issued by the Monroe County Emergency Management Office. i 12. Ms. Girard did not evacuate for Hurricane Irma or any other hurricane since moving to a site-built home in Key West in 2007.4 CD 13. Marathon, Islamorada, and Key West, are all municipalities with the 0 duty and authority to adopt a comprehensive plan, pursuant to section 163.3167, Florida Statutes (2019). c Backaound 14. In 1972, the Florida Legislature enacted the Environmental Land and 0 Water Management Act, which provided the basis for state designation of Areas of Critical State Concern ("ACSC").5 The statute provides criteria for 4 Ms. Girard previously lived on vessels in the Key West area. 5 The Environmental Land and Water Management Act was enacted prior to the 1985 Growth Management Act, chapter 163,part II, when most local governments did not have programs and personnel to guide development in a manner that would ensure protection of natural resources. 8 Packet Pg. 3372 Q.3.g designating an ACSC, which is generally "[a]n area containing ... N environmental or natural resources of regional or statewide importance," such as wildlife refuges, aquatic preserves, and state environmentally c endangered lands. § 380.05(2), Fla. Stat. (2019).6 15. In 1974, the Florida Keys (Monroe County and its municipalities) were designated an ACSC due to the area's environmental sensitivity and mounting development pressures. 0 16. The designation was effectuated by the adoption in 1979 of section 380.0552, Florida Statutes, the "Florida Keys Area Protection Act." The Act establishes the legislative intent to establish a land use management system c CD that, among other things, "protects the natural environment," "conserves and W promotes the community character promotes orderly and balanced growth in accordance with the capacity of available and planned public facilities and services," and "promotes and supports a diverse and sound economic base" in the Keys. § 380.0552(2), Fla. Stat. (2019). 17. The ACSC designation transferred all local Keys planning and 0 development review and approval rights to the state land-planning agency, i the Florida Department of Community Affairs ("DCA").7 While the Keys local governments can adopt and amend their plan and land development CD regulations, those provisions do not take effect until approved by 0 administrative rule. See § 380.0552(9), Fla. Stat. 0 0 s The statute contains additional specific criteria for designation, including the economic and ecological value of the area;presence of critical habitat of any state or federally designated threatened or endangered plant or animal species; inherent susceptibility to substantial < development due to its geographical location or natural aesthetics; and the anticipated effect of development on the environmental or natural resources of regional or statewide importance. § 380.05(2), Fla. Stat. (2019). 7 The 2011 Legislature transferred the DCA Division of Community Planning, via Type II transfer, to the Department of Economic Opportunity. See ch. 2011-142, § 3, Laws of Fla. 9 Packet Pg. 3373 Q.3.g 18. In 1986, Monroe County updated its comprehensive plan to be N consistent with the 1985 Growth Management Act.8 Several administrative challenges followed, initiated by both DCA and private entities and c individuals. 19. Monroe County revised its comprehensive plan in 1993 to resolve many of the issues raised in the litigation, but those amendments were again challenged in administrative proceedings. 0 20. The second challenge culminated in a final order of the Administration Commission in 1995 finding the 1993 Monroe County Plan not "in compliance," with the Act and the Principles for Guiding Development in the c CD Keys ACSC ("the Principles"), which are adopted by rule of the W Administration Commission. The Final Order found that "the environment of the ... Keys is the very essence of Monroe County's economic base. The uniqueness of the environment ... and the current condition of the environment must be addressed in any growth management decision[]." DCA u. Monroe Cty., 1995 Fla. ENV LEXIS 129 (Fla. ACC 1995). 0 21. The litigation highlighted aspects of the Florida Keys ecosystem as i having limited capacity to sustain additional impacts from development. Of particular concern was the declining water quality of the nearshore CD environment due to lack of central sewer facilities, the loss of habitat for 0 state and federally-listed species, public safety in the event of hurricanes, and a deficit of affordable housing. Relevant to Petitioner's challenge, the c Final Order found that the ability of the nearshore waters of the Keys to withstand additional degradation from sewage and stormwater discharges 0 "has already been reached or even exceeded," and that development of the Keys "is degrading the nearshore waters at or over carrying capacity." LU s The Growth Management Act was significantly amended and renamed the"Community Planning Act," by chapter 2011-142, Laws of Florida. 10 Packet Pg. 3374 Q.3.g 22. The 1995 Final Order required Monroe County to undertake certain N "remedial actions" in order to bring the Plan into compliance with both the Act and the Principles, which are adopted in section 380.0552. c 23. Among the remedial actions was the requirement that Monroe County establish a Permit Allocation System ("PAS") for new residential development. The Administration Commission explained, as follows: The [PAS] shall limit the number of permits issued for new residential development ... provided that c the hurricane evacuation clearance time does not exceed 24 hours .... The County shall adjust the allocation based upon environmental and hurricane evacuation constraints and ... to account for permits and vested units in ... the Keys. W 24. Monroe County amended its plan in 1996 to implement the PAS and other remedial actions, and adopted a "carrying capacity approach" to 0 planning in the ACSC. 25. The amended comprehensive plan was approved by rule of the Administration Commission—Florida Administrative Code Rule 28-20, which c U also established a comprehensive work program designed to improve the 2I Keys' water quality and protect the habitat of threatened and endangered species. 26. The rule was subject to another administrative challenge, and the Division issued a final order upholding the rule in 1997. See Abbott V. Admin. 0 Comm'n, Case No. 96-2027RP (Fla. DOAH May 21, 1997). The Carrying Capacity Study 27. The work program adopted by the rule included the requirement to c U conduct a "carrying capacity analysis" for the Florida Keys. Florida 2 Administrative Code Rule 28-20.100 provided, "The carrying capacity analysis shall be designed to determine the ability of the Florida Keys ecosystem, and the various segments thereof, to withstand impacts of additional land development activities." The rule established that the 11 Packet Pg. 3375 Q.3.g analysis should be based on the findings adopted by the Administration N Commission on December 12, 1995, "or more recent data that may become available in the course of the study," and upon the benchmarks of, and all adverse impacts to, the Keys natural land and water systems, in addition to the impacts of nutrients on marine resources. 28. The study was undertaken beginning in 1996 and was sponsored jointly by DCA and the Army Corps of Engineers ("the Corps") and involved c 38 separate state and federal agencies. The study modeled a series of future development scenarios, as well as redevelopment and restoration scenarios. 29. The Final Report9 of the Florida Keys Carrying Capacity Study c CD ("FKCCS") was issued in September 2002. The major findings include the W following: • Development suitability in the Florida Keys is extremely restricted, due to the following 0 characteristics: Existing development has displaced nearly 50 percent of all upland habitats, and remaining uplands are distributed E in patches of 10 or fewer acres; almost every c native area is potential habitat for one or more endangered species; over 50 percent of all 0' private lands are wetland parcels, and development suitability of remaining lands is CD low or marginal due to open space requirements, lack of infrastructure, and other factors. c • Future growth is limited in the next 20 years— less than 10 percent growth in the number of dwelling units and population—due to infrastructure limitations. Permitted capacity of c potable water withdrawals was exceeded in 1999 and 2000; improvement of hurricane evacuation clearance times is dependent on structural improvements to U.S. Highway 1, which will increase government costs, nutrient loading, and indirect impacts to wildlife and 9 The document introduced in evidence is titled"Draft Final Report." According to the testimony of Rebecca Jetton, no other final report was issued by the study sponsors. 12 Packet Pg. 3376 Q.3.g habitats; and residential capacity is limited to N 6,000 units in order to maintain the state- mandated level of service for roadways. c • All six future scenarios would result in disproportionate increase in government expenditures with respect to increased population, which will require increased a taxation on both local residents and tourists. 0 • The existing data "are insufficient to establish quantitative, predictive relationships between land use or development and the marine environment." The study documented human c impacts to the marine ecosystem and species. CD The study underscores the benefits of W wastewater treatment, "but other impacts are more related to resource management than to land development." 0 30. The study provides the following four major guidelines for future development in the Florida Keys: E 1. Prevent encroachment into native habitat. A c wealth of evidence shows that terrestrial habitats �I and species have been severely affected by development and further impacts would only exacerbate an already untenable condition. 2. Continue and intensify existing programs. Many initiatives to improve environmental conditions and quality of life exist in the Florida Keys. They c include land acquisition programs, the wastewater and stormwater master plans, ongoing research and management activities in the Florida Keys National Marine Sanctuary, and restoration efforts throughout the Keys. y 3. If further development is to occur, focus on redevelopment and infill. Opportunities for additional growth with small, potentially acceptable, additional environmental impacts may occur in areas ripe for redevelopment or already disturbed. 13 Packet Pg. 3377 Q.3.g 4. Increase efforts to manage the resources. Habitat N management efforts in the Keys could increase to effectively preserve and improve the ecological values of remaining terrestrial ecosystems. 31. Rule 28-20.001 required the findings of the FKCCS to be implemented by "adoption of all necessary [comprehensive plan] amendments to establish a rate of growth and a set of development standards [to] ensure that any and all new development does not exceed the capacity of the county's environment and marine system to accommodate additional impacts." The study would c provide the state and the Keys local governments with an analytical tool to 0 support future comprehensive plan amendments and revisions of land development regulations. W 24-Hour Hurricane Evacuation 32. In 2006, following the publication of the FKCCS, the Legislature 0 amended section 380.0552 to require the local governments to adopt provisions in their comprehensive plans to "protect the public safety and welfare in the event of a natural disaster by maintaining a hurricane c U evacuation clearance time for permanent residents of no more than 24 hours." 2I § 380.0552(4)(e)2., Fla. Stat. (2007). The requirement remains in effect and is enforced by the state through review of local government plan amendments. CD See § 380.0552(9)(a)2., Fla. Stat. ROGO and BPAS 0 33. Principle among the Monroe County amendments to implement the remedial actions ordered by the Administration Commission was the PAS, implemented in the County by a Rate of Growth Ordinance ("ROGO"). The c U current version of the administrative rule approving the County's 2 comprehensive plan is rule 28-20.140, which also governs and approves ROGO. The rule provides the maximum number of permits for residential development that may be issued annually, with a split between affordable and market rate units. The current cap is 197 units per year, with a 14 Packet Pg. 3378 Q.3.g minimum of 71 units allocated for affordable housing and a maximum of 126 N market rate units. Any unused affordable housing units "roll over" for affordable housing units the following year. Other unused allocations may be rolled over and used for affordable housing units or "administrative relief."10 34. Islamorada and Marathon were not yet incorporated when the comprehensive plan litigation began and subsequent remedial measures were issued. Since their incorporation, each of the cities has been brought under 0 the umbrella of the ACSC designation. The cities' respective comprehensive plans and land development regulations are subject to the same review and approval authority of the Administration Commission, and are subject to c CD similar work plans to implement the remedial measures required by the W commission. The applicable administrative rules are chapter 28-19 for Islamorada and chapter 28-18 for Marathon. 35. Marathon and Islamorada have permit allocation requirements similar to Monroe County, known as the Building Permit Allocation System (`SPAS"). Their respective administrative rules provide the annual maximum 0 number of permits and the split between affordable and market rate units, as i well as the rules governing rollover of unused allocations." 36. BPAS is a competitive system. Permit applications are awarded points CD based on their alignment with specific development criteria, such as presence 0 or absence of wetlands or protected habitat, and availability of public services. Those applications with the highest points are awarded available c permits for the BPAS year. 0 10 Unused allocations may be provided to applicants who have been denied a permit, despite having met all the requirements of the land development regulations,if they have been in �. the allocation system for a significant number of years. 11 Marathon's annual cap is 30 units and Islamorada's is 28 (22 market rate and 6 affordable housing). e( 15 Packet Pg. 3379 Q.3.g Work Pro,-,ram N 37. Each of the municipalities' governing rules includes a work program, broken down into the following categories: (1) carrying capacity c implementation; (2) wastewater implementation; and (3) wastewater project implementation. Marathon's work program includes a fourth category— stormwater treatment facilities. 38. The specific activities of each work program differ somewhat. For c example, with respect to environmentally-sensitive lands, Islamorada was required to apply for land acquisition funds, while Marathon was required to apply and adopt land development regulations limiting permit allocations in c high quality habitats. Monroe County was required to adopt conservation W planning mapping into its comprehensive plan. 39. The wastewater implementation and wastewater project implementation sections of the work programs are of high importance. The litigation highlighted the declining water quality of the nearshore environment due to a lack of central sewer facilities. The Keys' wastewater 0 treatment "system" consisted of a hodgepodge of some 23,000 septic tanks, i 2,800 cesspits, and at least 249 small package treatment plants. 40. The work program represents a monumental, long-term, and CD expensive12 infrastructure project to build a central sewer system in the 0 Keys, followed by a program to require existing developments to connect to the system, and land development regulations to direct new growth to areas c served by central wastewater treatment facilities. Each local government work program includes specific target dates to obtain funding for, and 0 construction of, each component of the sewer system, as well as specific target 12 In both 2012 and 2016, the Florida Legislature authorized expenditure of Everglades restoration bond funds for Florida Keys wastewater and stormwater management projects; �. and, in 2016, appropriated$5 million in Florida Forever funds for said projects for the 2016/2017 year. More than $13 million was included in the general appropriations act for E said projects in the 2017/2018 year. 16 Packet Pg. 3380 Q.3.g dates for initiating and completing connections of existing development to the N newly-constructed system. 41. Monroe County's work program also includes directives for funding stormwater improvement projects and deadlines for completing said projects. ACSC Annual Reports 42. The local governments and the Department of Economic Opportunity ("DEO") are required to report to the Administration Commission annually 0 documenting "the degree to which work program objectives for the work 2 program year[13] have been achieved." 43. Achievement of work program objectives is directly tied to the BPAS c CD and ROGOif the Administration Commission finds that work program W objectives have not been achieved, it can reduce the unit cap for residential development by 20 percent for the following year.14 Additionally, through the BPAS and ROGO, the local governments are required to direct new growth to areas served by central sewer. Each application for building permit is awarded an additional four points15 if the parcel is served by central sewer 0 meeting statewide treatment standards. i 44. In the 2017 ACSC annual report, the most recent report for which the parties requested official recognition, Islamorada reported it had connected CD 85 percent of potential customers (with another five percent in the 0 4- application process), Marathon had connected 97 percent, and Monroe County had an overall connection rate of 86 percent (with higher percentages c for specific individual treatment facilities). 0 13 The work program year runs from July of one year to June of the following year. e( 14 The Islamorada rule does not contain this provision; however,it does provide that,if the Administration Commission determines progress has been made for the work program year, then the Commission"shall restore the unit cap" of 28 allocations for the following year. It is �. unclear whether Islamorada was already under penalty when the new rule was adopted or whether this is an oversight in the rule. E 15 In Islamorada, the award is two additional points. 17 Packet Pg. 3381 Q.3.g City of Key West N 45. Key West challenged its inclusion in the original ACSC designation, and, in 1984, was designated as a separate area of critical state concern ("the Key West ACSC"), effectuated by the adoption of Florida Administrative Code Chapter 28-36. 46. The Key West ACSC is subject to the same land planning and development regulation oversight as the Florida Keys ACSC, and the Key c West comprehensive plan and land development regulations are approved by the state through Florida Administrative Code Chapters 28-37 and 9B-30. 47. Key West is subject to separate principles for guiding development c CD than the Florida Keys ACSC, which are found in rule 28-36.003. Key West is W served by central sewer and does not have work program tasks. Hurricane Evacuation Clearance Time 48. The work program requires the local governments within the Florida Keys ACSC to enter into a Memorandum of Understanding ("MOU") with the DEO, the Division of Emergency Management, and each of the other Keys 0 local governments, to stipulate to the input variables and assumptions for i utilizing the Florida Keys Hurricane Model, or other models acceptable to DEO, to accurately depict hurricane evacuation clearance times for the CD population in the Keys. The work program required, by July 1, 2012, the local 0 governments to run the model with the agreed upon variables from the MOU "to complete an analysis of the maximum build-out capacity for the ACSC, c consistent with the requirement to maintain a 24-hour evacuation clearance time and the [FKCCS] constraints." 0 49. DEO appointed a Hurricane Evacuation Clearance Time Work Group (the "Work Group") including members of each of the six local governments and representatives from the tourism industry, chambers of commerce, and community organizations, as well as from state and federal agencies. The Work Group held a series of public workshops to consider hurricane model E inputs—census data, behavioral studies, hurricane forecasting, military 18 Packet Pg. 3382 Q.3.g evacuation procedures, traffic flow rates, and number and location of vacant N platted lots. 50. The Work Group selected the Division of Emergency Management's Transportation Interface for Modeling Evacuations ("TIME") as the model to accurately depict evacuation clearance times for the population of the Keys ACSC and the Key West ACSC ("the Florida Keys ACSCs"). The Work Group agreed on 10 modeling assumptions, including the number of tourist units, 0 and of those, the number occupied; the number of mobile home units and evacuation participation rates; and the number of site-built units, the occupancy rate, and participation rate of residents in those units, among c CD other important variables. The inputs and assumptions were tested by W modeling over 100 evacuation scenarios. 51. The Work Group presented its findings on June 8, 2012, and selected evacuation scenario M5, which provided for continuation of then-existing annual building permit allocations that were adopted by rule or comprehensive plan amendment (with the exception of Key Colony Beach and 0 Key West). Scenario M5 produced an evacuation clearance time of 24 hours i with a future allocation of 3,550 new residential building permits. 52. Notably, scenario M5 assumed that military, mobile home residents, CD and tourists would evacuate during Phase I of what DEO described as a two- 0 phase evacuation plan. Further, M5 assumed that 15 percent of existing mobile homes would convert to site-built homes. c 53. In the two-phase evacuation plan, tourists are ordered to evacuate 48 hours in advance of predicted tropical storm force winds, and residents of 0 mobile homes are ordered to evacuate 36 hours in advance. The model predicted an evacuation clearance time of 16 hours and 30 minutes for Phase I using tourist occupancy rates for July, and 17 hours and 30 minutes using tourist occupancy rates for the Labor Day weekend. 54. Under Scenario M5, residents of site-built units are ordered to E evacuate 30 hours in advance, giving those residents six hours of lead time to 19 Packet Pg. 3383 Q.3.g secure property and make other preparations. Under scenario M5, all site- N built residences were evacuated within 24 hours of predicted tropical storm force winds, including an additional 3,550 units. As such, the work group determined 3,550 units to be the maximum buildout of the Keys through 2023 to maintain the 24-hour hurricane evacuation mandate in section 380.0552. 55. The Work Program directed DEO to "apply the derived clearance time c to assess and determine the remaining allocations for the [ACSC]" and recommend revisions to the allocation rates and distribution of allocations to the six local governments, as well as any recommended changes to the local c CD government comprehensive plans. DEO completed that task, and determined W that a maximum of 3,550 additional units could be distributed over the next ten years, beginning in July 2013. 56. On November 5, 2012, Monroe County, Marathon, Islamorada, Key Colony Beach, Key West, the City of Layton, the Division of Emergency Management, and DEO, entered into an MOU agreeing on the use of the 0 TIME model, as well as the data, input variables, and assumptions to be i utilized in model runs. The following "whereas" clause succinctly provides the results of the M5 scenario: CD WHEREAS, from among the scenarios provided by DEO at the June 8, 2012, Work Group meeting, Scenario M5 included the 2010 Census site-built units (43,760 units); the maximum number of c residential building permits for new construction for all Local Governments per year for 10 years (annually, County 197, Marathon 30, Islamorada 28, Key West 90, Key Colony Beach 6, and Layton 3); 1,248 mobile home units projected to convert to 2 site-built units; the exclusion of 870 dwelling units on the Naval Air Station; as well as two (2) functional evacuation lanes from MM 108-126. Further the work group recommended Scenario M5 with the provision that the City of Key West would transfer annually (by July 13th) any remaining or unused (90 allocations) allocations to the other 20 Packet Pg. 3384 Q.3.g Local Governments based upon the Local N Governments' ratio of vacant land. c 57. Technical corrections made after the June 8, 2012 meeting, the census- based number of site-built units was revised to 43,718 and the Key West allocation was revised to 91. 58. The MOU also memorializes the following staged evacuation procedure: c • Approximately 48 hours in advance of tropical storm winds, mandatory 0 evacuation of non-residents, visitors, RVs, travel trailers, live-aboard 0 vessels (transient and non-transient), and military personnel. • Approximately 36 hours in advance, mandatory evacuation of mobile- home residents, special needs residents, and hospital and nursing home patients. c • Approximately 30 hours in advance, mandatory phased evacuation of permanent residents by evacuation zone.[16] 59. The phased evacuation procedure is also adopted in each of the local c U government comprehensive plans, except Key West, which adopted the 2I procedure by resolution. Affordable Housin, CD 60. The need for additional affordable housing in the Keys is well documented, and the parties stipulated, generally, to the need. 0 61. Numerous factors contribute to the need for affordable housing, including, but not limited to, the high cost of living, higher construction costs, the high cost of land, as well as the limited supply and high demand for real c estate and housing throughout the Florida Keys. The need for affordable housing was exacerbated by Hurricane Irma, which made landfall in the Florida Keys in September of 2017 and destroyed approximately 400 mobile Uj 16 There are five hurricane evacuation zones in the Keys designated by mile marker numbers along US 1. 21 Packet Pg. 3385 Q.3.g homes, "permanent RV's," and ground-level single-family homes that served N as affordable housing, many for members of the Keys workforce. 62. Most of the site-built homes destroyed were not built to current c building code standards, but were "grandfathered" from code compliance. Those structures must be rebuilt to code, which will likely take them out of financial reach of members of the Keys workforce. 63. Provision of affordable housing is an important aspect of the c regulatory framework for planning in the Keys. 64. The litigation over the Monroe County comprehensive plan highlighted a deficit of affordable housing in the Keys. Among the Principles c CD is the requirement to "[make] available adequate affordable housing for all W sectors of the population" of the Keys. § 380.0552(7)(1), Fla. Stat. When designating the ACSC, the Legislature expressed the intent to "[p]rovide affordable housing in close proximity to places of employment" in the Keys. § 380.0552(2)(d), Fla. Stat. The Keys Workforce Housing Initiative 0 65. Shortly after Hurricane Irma, Marathon began discussions with DEO i about the possibility of obtaining additional building permit allocations for workforce-affordable housing. CD 66. In November 2017, Marathon passed Resolution 2017-99 requesting 0 the allocation of 300 affordable housing allocations from DEO with approval of the Administration Commission. c 67. DEO determined there were not enough building permits available under the current regulatory structure to address the need for affordable 0 housing in the Florida Keys. As a result, DEO developed the Keys Workforce Affordable Housing Initiative (the "Housing Initiative") to allow up to 1,300 new building permit allocations for workforce housing throughout the Florida Keys, with an initial allocation not to exceed 300 per local government. E 22 Packet Pg. 3386 Q.3.g 68. Under the Housing Initiative, the additional units are to be deed- N restricted for workforce affordable housing and required to evacuate in Phase I, along with tourists, visitors, mobile home residents, and military personnel. 69. The Administration Commission approved the Housing Initiative at the June 13, 2018 meeting. In support of the Housing Initiative, DEO staff made a presentation asserting that the Phase I evacuation (under the 0 existing staged evacuation plan) can be accomplished in 17.5 hours, leaving additional capacity of 6.5 hours in Phase I. DEO concluded that the Housing Initiative "will not interfere with the 24-hour evacuation model and satisfies c CD the statutory mandate to provide affordable housing." W 70. Following approval by the Administration Commission, DEO worked with Marathon and other local governments to amend their comprehensive plans to implement the Housing Initiative. The Plan Amendments 71. The Marathon Plan Amendment creates a new Future Land Use 0 ("FLU') goal stating the intent to participate in the Housing Initiative i approved by the Administration Commission. It further creates a new FLU Objective establishing a "new limited category" of building permit allocations CD known as "Affordable — Early Evacuation Pool" providing 300 workforce 0 affordable building permit allocations in addition to the allocations identified in chapter 28-18. The Marathon Plan Amendment creates five new FLU c policies. The first allows for distribution of the allocations "at any time" provided applicable Marathon public notice and hearing procedures are 0 followed and the distribution is based on the BPAS ranking procedures in effect. 72. The second policy provides the following "Specific Standards and LU Requirements for Workforce Affordable Housing": Affordable-Early Evacuation residential units E under this program shall: 23 Packet Pg. 3387 Q.3.g a. be multifamily structures; N b. be rental units; c c. require, at a minimum, adherence to the latest edition of the Florida Building CodeO; d. not be placed in the V-Zone or within the Coastal Barrier Resource Systems; e. require on-site property management; c 2 f. comply with applicable habitat and other locational criteria and densities for multifamily affordable housing units; g. shall not be placed in any habitat defined as mangroves, saltmarsh & buttonwood, hardwood hammock, or fresh water wetlands (disturbed categories excepted); 0 h. incorporate sustainable and resilient design principles into the overall site design; E 0 i. ensure accessibility to employment centers and amenities; and 0' j. require deed-restrictions ensuring: (1) the property remains workforce-affordable housing in perpetuity; c (ii) tenants evacuate during the period in which transient units are required to evacuate; (iii) rental agreements contain a separate c disclosure requiring renters to acknowledge that failure to adhere to the evacuation requirement could result in severe penalties, including eviction, to the resident; and (iv) on-site property managers are formally trained in evacuation procedures. 24 Packet Pg. 3388 Q.3.g 73. The third policy exempts from the early evacuation requirement all N first responders, correctional officers, health care professionals, or other first- response workers required to remain during an emergency. 74. The fourth policy requires the workforce-affordable developments to comply with federal accessibility standards. 75. The last policy requires Marathon to provide DEO with an annual report on the implementation of the Housing Initiative, including 0 documenting the number of workforce-affordable housing units built, occupancy rates, and compliance with the early evacuation requirement. The report is to be included in the DEO annual work program report to the c CD Administration Commission. W 76. Islamorada's plan amendment provides 300 workforce-affordable building permit allocations in addition to the allocations identified in chapter 28-19. In all other respects the amendment is identical to the Marathon Plan Amendment. 77. The Key West Plan Amendment approves the receipt of 300 workforce- 0 affordable building permit allocations "as well as any additional allocations i which may be authorized by the Florida Administration Commission or transferred to Key West that are not accepted by other Florida Keys CD municipalities or Monroe County." Rather than authorizing distribution of 0 the allocation "at any time," Key West authorizes distribution "on a first- come first-served basis and at any time" following public notice and hearing c procedures. Allocation of the Key West permits is not required to follow BPAS ranking unless the number of applications received exceeds the authorized 0 allocation. There are also two minor differences in the "Standards and Requirement for Workforce-Affordable Housing" in the Key West Plan Amendment: it does not contain the paragraph prohibiting placement of units in buttonwood and hardwood hammock; and it does not require that property managers be trained in evacuation procedures. Otherwise, the Key West Plan E 25 Packet Pg. 3389 Q.3.g Amendment is virtually identical to that adopted by Marathon and N Islamorada. Petitioners' Challenyes 78. Petitioners challenge the Plan Amendments, generally, as inconsistent with the FKCCS and the carrying capacity approach to planning in the Keys. The two main contentions are hurricane evacuation and environmental concerns. c Hurricane Evacuation 79. Petitioners posit that the Plan Amendments violate the Principles and the MOU17, and render the local government comprehensive plans internally CD inconsistent, by exceeding the requirement to evacuate the Keys permanent W population in no more than 24 hours. Petitioners also argue the plan amendments are not supported by adequate data, and a professionally- acceptable analysis thereof, on hurricane evacuation clearance times. 80. At first blush, Petitioners' argument has merit: the Plan Amendments allow up to 1,300 units to be built in the Keys beyond the previously- 0 established maximum buildout of 3,550 units through the year 2023. That i buildout number was derived directly from the Work Group after agreement on all assumptions and inputs for, and multiple runs of, the agreed-upon CD TIME model, and identification of the M5 scenario as the best model for 0 evacuation of permanent population within 24 hours. 81. It is undisputed that the new residential units to be allocated under c the Housing Initiative will house permanent residents. That fact alone is not in direct conflict with the 24-hour evacuation requirement because, as 0 implemented, the evacuation plan requires some permanent residents— residents of mobile homes, "permanent RVs," live-aboard vessels, and military personnel—to evacuate in advance of the start of the 24-hour clock. 17 As explained in the Conclusions of Law, Petitioners' contention that the Plan Amendments are inconsistent with the MOU is rejected. Inconsistency with the MOU is not a statutory compliance issue. 26 Packet Pg. 3390 Q.3.g That requirement is incorporated into the local government comprehensive N plans which have previously been found to be "in compliance" meaning both internally consistent and consistent with the Principles. 82. Petitioners introduced the testimony of Richard Ogburn, a planning expert who has extensive experience with hurricane evacuation modeling in South Florida, including the Keys. Mr. Ogburn was directly involved in the Work Group hurricane evacuation modeling that culminated in the 2012 c report and adoption of the MOUs. As Mr. Ogburn explained, Monroe County was the first local government in the state to update its hurricane evacuation modeling based on the 2010 census data. It was to be a pilot for updating the c statewide regional evacuation plan utilizing the new census data. W 83. Specifically, Mr. Ogburn, who was at the time employed by the South Florida Regional Planning Council, extracted demographic data from the 2010 census and created the demographic data base for use with the TIME c model. Mr. Ogburn subsequently completed "validation runs" of the TIME model results generated by DEO staff during the Work Group process.18 0 84. In 2013, while Mr. Ogburn was working on the update to the statewide i regional evacuation model, Mr. Ogburn discovered some blank cells within the census block group data sets in the original spreadsheet he had created CD for DEO. The missing information was the number of vehicles identified 0 within those specific census block groups. With respect to Monroe County, eight of the 76 block groups were missing vehicle data. c 85. Mr. Ogburn found an alternative data source from which to derive the number of vehicles in the associated census block groups and reran the model 0 for purposes of updating the statewide regional model. In 2014, Mr. Ogburn reported the census data errors to DEO, which requested he rerun scenario M5 after including the missing vehicles. The result was an increase of two- is The validation process involved input of the data parameters into the model and repeating the same model run scenarios to ensure that the results from the initial runs were replicated. 27 Packet Pg. 3391 Q.3.g and-a-half hours for evacuation of Phase IIa total clearance time of N 26.5 hours. 86. Mr. Ogburn testified that, based on the best-available data on hurricane evacuation clearance times, the evacuation of site-built dwellings in the Keys already exceeds the 24-hour evacuation standard mandate by statute (and incorporated into Respondents' comprehensive plans). In his opinion, adding units authorized by the Housing Initiative would further 0 exacerbate the problem. 87. Petitioners introduced other evidence aimed at tearing down the conclusion of the Work Group that the Keys could be safely evacuated in c CD under 24 hours, based on the 2012 TIME model runs. For example, W Mr. Ogburn questioned the vacancy rates utilized by the Work Group, which he described as "most likely" too high. Mr. Ogburn cast doubt on the 100% participation rate assumption, and the assumed 12-hour response curve, which he testified was unrealistic given that people will not leave at the same rate if the evacuation is ordered at midnight as they would if the 0 order was given at 7:00 a.m. Petitioners likewise introduced evidence casting i doubt on the ability of meteorologists to predict storms with accuracy 48 hours in advance of landfall. CD 88. The Keys local government comprehensive plans, as adopted with use 0 of the TIME model, and all underlying assumptions and inputs, have previously been determined to be "in compliance." The question of whether c those assumptions and model inputs are supported by data and analysis is not properly before the undersigned in this proceeding. The evidence was, for 0 the most part, irrelevant.19 89. The Housing Initiative is grounded on the availability of evacuation time in Phase I of the agreed evacuation procedure, which is adopted in each of the local government comprehensive plans. Mr. Ogburn agreed on cross- 19 Moreover, the evidence served to undercut Petitioners' argument that the best available data and analysis supports the 24-hour evacuation clearance time cap. 28 Packet Pg. 3392 Q.3.g examination, that the TIME model was run separately for Phase I and N Phase II, that the results from Phase I were not taken into consideration in the data for Phase II, and that if the units are presumed to evacuate in Phase I, it would have no effect on the analysis for Phase II. 90. Notably, when Mr. Ogburn was asked directly whether the additional 1,300 units added to permanent population would cause the Keys evacuation time to exceed 24 hours, Mr. Ogburn testified: c If the evacuation takes place ahead of time, it's a different question and I don't have a clear answer for that because I have not had the opportunity to run the model to determine whether or not that c CD would cause the clearance times in the original phase to increase significantly.[201 W 91. The 2012 run of the TIME model demonstrated a clearance time in Phase I of 16 hours and 30 minutes, or 17 hours and 30 minutes, depending 0 on the transient occupancy rate utilized. 92. Respondents introduced the testimony of Joaquin Vargas, a traffic E engineering consultant who was accepted as an expert in transportation planning, including roadway capacity issues related to hurricane evacuation. Mr. Vargas participated in hurricane evacuation modeling in the Keys in the CD 1990s to determine potential roadway improvements that could reduce Keys evacuation clearance time. Mr. Vargas was the principal author of the "Miller Model," which was utilized in these studies. 93. Mr. Vargas' modeling was not based on a two-phased evacuation. Instead, the Miller Model assumed evacuation of all permanent population E simultaneously in order to identify where roadway improvements would reduce the evacuation clearance time. 94. Mr. Vargas introduced the results of a model run of simultaneous evacuation of the Keys without units authorized under the Housing Initiative, and a second adding 300 units each for Marathon, Islamorada, and 20 T2:79;1-6. ¢ 29 Packet Pg. 3393 Q.3.g Key West. The model run without the 900 combined units yielded an N evacuation clearance time of 21 hours and 34 minutes. With the additional 900 units, the model yielded a clearance time of 21 hours and 42 minutes. 95. This evidence had little relevance because the models are not comparable, and because Mr. Vargas utilized inputs and assumptions that differed greatly from the TIME model runs underlying the carrying capacity analysis utilized by the Work Group. The Miller Model assumes the 0 evacuation of all permanent residents (including mobile home residents) simultaneously, so it is useless as a comparator to the Phase II run of the TIME model. Additionally, Mr. Vargas utilized 2000 census data, rather than c CD the more recent 2010 data, which Mr. Vargas admitted "w[ould] provide more W accurate information," and included inaccurate data, such as non-existent lane segments which inflated capacity on some roadway segments. While Mr. Vargas expressed the opinion that the Miller Model is superior because it c was designed expressly for the Keys, the fact remains that the existing "in compliance" comprehensive plans are based on use of the TIME model to 0 determine maximum buildout in the Keys. i 96. Mr. Ogburn completed a run of the TIME model in 2014 which included the previously-missing vehicles from the census block groups in CD Phase I. That rerun produced a clearance time of 19 hours. The best available 0 data and analysis (the 2014 rerun) supports a finding that the clearance time for Phase I, without the additional units from the Housing Initiative, is c 19 hours. Thus, the evidence does not support a finding that the evacuation of Phase I with the additional 1,300 units cannot be completed within the first 0 24 hours of a 48-hour evacuation scenario. 97. The preponderance of the evidence does not support a finding that the inclusion of the 1,300 units in Phase I will violate the requirement to evacuate Keys permanent residents in 24 hours or less. 98. On the theory that the addition of up to 1,300 residential units in the E Keys will cause the hurricane evacuation clearance time to exceed 24 hours, 30 Packet Pg. 3394 Q.3.g Petitioners alleged the Plan Amendments are inconsistent with the following N provisions of Respondents' comprehensive plans: Marathon: • FLU Objective 1-2.1, which requires Marathon to "ensure the availability of adequate public facilities and services[.]" • FLU Objective 1-2.2, requiring Marathon to "meet the required 24- hour hurricane evacuation time or other applicable state standard for c hurricane evacuation." 2 0 4- 0 • FLU Objective 1-3.5, requiring Marathon to "manage the rate of new development to ... support safe and timely evacuation prior to a W hurricane." • Conservation and Coastal Element Policy 4-1.21.2, requiring Marathon to coordinate with Monroe County in updating policy formulations regarding land use and emergency preparedness and to plan for future 0 land use densities that will not adversely impact the efficiency of i hurricane evacuations or increase evacuation times. CD • Intergovernmental Coordination Element ("ICE") Objective 5-1.1, requiring Marathon to maintain coordination mechanisms with the comprehensive plans of Monroe County and adjacent municipalities. • ICE Policy 5-1.1.2, requiring Marathon to coordinate with adjacent jurisdictions "for the development of joint strategies to address 0 U development, zoning, and land-use decisions that transcend 2 jurisdictional boundaries." • ICE Policy 5-1.1.10, requiring Marathon to establish a program to provide and review proposed plan amendments of adjacent local governments to ensure consistency. 31 Packet Pg. 3395 Q.3.g • Policy 5-1.2.10), requiring Marathon to enter into interlocal N agreements or develop joint resolutions in areas of mutual concern, including the coordination of hurricane evacuation plans. Islamorada: • FLU Goal 1-1, which provides that the comprehensive plan shall "[e]ncourage0 sustainability by limiting growth in order to establish and maintain acceptable levels of service for hurricane evacuation[.]" c • Transportation Element ("TE") Policy 2-1.2.8, which requires 4- Islamorada to "address long-term strategies to reduce clearance time and coordinate permit allocations" by implementing specifically-listed programs with FDOT, FDCA, and other local governments in the Keys. • TE Policy 2-1.2.9, which provides for the staged/phased evacuation 0 procedure to maintain a 24-hour hurricane evacuation clearance time. • TE Policy 2-1.2.10, which requires Islamorada to "support state 0 funding for the update of the hurricane evacuation model that i considers the impact of Miami-Dade County on evacuees[.]" CD • TE Policy 2-1.6.3, by which Islamorada "adopts 24 hours as the maximum allowable hurricane evacuation clearance time standard," and provides that "[t]he Village shall reduce and maintain hurricane evacuation clearance time at or below 24 hours by ... limiting the annual allocation of permits ... as determined by interlocal agreement with the affected local governments in the Keys and the [DEO]." c 2 • Coastal Management Element ("CME") Objective 5-1.9, requiring Islamorada to "avoid population concentrations in the coastal high hazard area." 32 Packet Pg. 3396 Q.3.g • CME Policy 5-1.10.2, requiring Islamorada to "coordinate with Monroe County in emergency preparedness." c • CME Objective 5-1.15, requiring Islamorada to "ensure intergovernmental coordination within the coastal area." • ICE Objective 8-1.1, requiring Islamorada to "ensure intergovernmental coordination." 2 • ICE Policy 8-1.2.1, titled "Coordinate Development and Growth Management Issues." c CD • ICE Policy 8-1.2.8, titled "Implement Intergovernmental Coordination." Key West: c • FLU Objective 1-1.16, requiring Key West to "regulate the rate of population growth commensurate with planned increases in evacuation capacity in order to maintain and improve hurricane 0 evacuation clearance times[,]" and "in concert with Monroe County, its i municipalities, and the State of Florida, [Key West] shall manage the CD rate of growth in order to maintain an evacuation clearance time of 24 hours for permanent residents." • CME Goal 5-1, "Protect human life and limit public expenditures in areas subject to destruction by natural disasters[.]" • CME Objective 5-1.6, requiring Key West to "coordinate with the State, the South Florida Regional Planning Council, [Monroe] County, and other local governments in order to regulate population growth and stage evacuations in a manner that maintains hurricane evacuation clearance times in accordance with the executed [MOU][.]" 33 Packet Pg. 3397 Q.3.g • ICE Policy 8-1.1.3, which reads, in pertinent part, as follows: Considering the growth and development limitations in Monroe County as a whole resulting from hurricane evacuation requirements ... and considering the impact that growth and development in the City of Key West will have on the rest of Monroe County, [Key West] shall coordinate with Monroe County and the Cities ... regarding the allocation of additional development. 2 0 4- The City shall pursue resolution of development c and growth management issues with impacts transcending the [Key West's] political jurisdiction. W Issues of regional and state significance shall be coordinated with the [SFRPC], the [SFWMD], and/or State agencies having jurisdictional authority. Issues to be pursued include but are not limited to the following: [Key West] shall implement the hurricane and transportation conclusions and policies relative to residential units' allocation which are adopted by Monroe 0 County and all municipalities as described in the �I [MOU] dated July 14, 2012. 99. Petitioners did not prove that the Marathon Plan Amendment is CD internally inconsistent with Objectives 1-2.1, 1-2.2, 1-3.5, and 5-1.1; and 0 Policies 4-1.21.2, 5-1.1.(2), 5-1.1.10, and 5-1.2.1.* 100. Petitioners did not prove the Islamorada Plan Amendment is inconsistent with Islamorada Comprehensive Plan Goal 1-1; Policies 2-1.2.8, 2-1.2.9, 2-1.2.10, and 2-1.6.3; Objective 5-1.9 and Policy 5-1.10.2; Objective 5- 0 U 1.15; and Objective 8-1.1 and Policies 8-1.2.1 and 8-1.2.8. 2 101. Petitioners did not prove the Key West Plan Amendment is internally inconsistent with Key West Comprehensive Plan Objectives 1-1.16, 5-1.6, Goal 5-1, and Policy 8-1.1.3. 102. Based on the foregoing Findings of Fact, Petitioners did not prove that the Marathon and Islamorada Plan Amendments are inconsistent with 34 Packet Pg. 3398 Q.3.g section 380.0552(9)(a)2., which requires the local governments in the ACSC N to adopt goals, objectives, and policies to "maintain a hurricane evacuation clearance time for permanent residents of no more than 24 hours." Environmental Concerns 103. Petitioners next contend the Plan Amendments are not supported by data and analysis demonstrating that the environmental carrying capacity of the Keys can support development of an additional 1,300 residential units. 0 Petitioners concerns fall into two categories which were the focus of the FKCCS: nearshore water quality and ecological impacts. Nearshore Water Quality of the Florida Keys c CD 104. Petitioners claim that the nearshore water quality of the Keys was W determined over 25 years ago to have exceeded its capacity to assimilate additional nutrients, that it remains nutrient-impaired today, and that the additional development authorized under the Plan Amendments will further increase nutrient pollution from additional wastewater and stormwater associated with development. 0 105. In 1990, Congress created the Florida Keys National Marine i Sanctuary ("FKNMS"), and required development of a Water Quality Protection Program ("WQPP"), establishing comprehensive, long-term CD CD monitoring of water quality in the FKNMS.Under the Water Quality 0 Monitoring Project ("WQMP"), water quality has been monitored quarterly at approximately 150 sampling stations since 1995. c 106. In 1997, the Governor and Cabinet approved the FKNMS Management Plan for implementation in state waters, and required annual 0 reports from the FKNMS. 107. The 2011 FKNMS annual report stated that, "in general, water quality is good Sanctuary-wide but documentation of elevated nitrate in the inshore waters of the Keys has been evident since" sampling began in 1995. The report notes, "Observance of this type ... implies an inshore source which E is diluted by low nutrient ocean waters," and that "[a]nalysis of monitoring 35 Packet Pg. 3399 Q.3.g data from 1995 through 2008 indicates a statistically significant N improvement in some parameters, such as dissolved inorganic nitrogen ..." The report concludes that "this trend will be watched closely in the future, particularly with regard to any potential effect attributable to ... water treatment infrastructure improvements." The report further cited "[e]xcessive nutrients from inadequately treated wastewater" as the "primary contributor to water quality degradation in near shore waters." 0 108. In 2008, the Environmental Protection Agency ("EPA") developed Strategic Targets for the WQMP, setting limits for DIN (dissolved inorganic nitrogen) at < 0.010 parts per million ("ppm"), and TP (total phosphorous) at c CD < 0.0077 ppm, among other nutrients, which are considered the values W "essential to promote coral growth and overall health." Future sampling was compared to the "baseline" from the 1995-2005 timeframe (e.g., the baseline for DIN was 76.3 percent—the average percentage the samples complied with c the target of< 0.010 ppm). In 2011, FKNMS added 10 sampling stations, located within 500 meters of the shore in the Keys, referred to in the reports 0 as the SHORE stations. i 109. In 2015, FKNMS reported that an average of all stations (excluding SHORE stations) met or exceeded the target value for DIN in 2008 through CD 2011, but fell short of the target in 2012 through 2015. The stations reported 0 meeting or exceeding the target for TP in 2011 through 2015, while falling short in 2008 and 2010. The 2017 annual report showed the stations meeting c or exceeding the DIN target in 2017, but not 2016; and meeting or exceeding the TP target in both 2016 and 2017. The 2017 study reported that "the 0 FKNMS exhibited very good water quality with median concentrations of TP at .0058, well below the target of.008. In 2018, FKNMS reported the stations meeting or exceeding the target for both nutrients. Again, in 2018, FKNMS LU reported "very good water quality with median concentrations of TP at .0051, lower than the 2017 level, and again well below the EPA target. E 36 Packet Pg. 3400 Q.3.g 110. In summary, the reports demonstrate the stations fell below the N target for TP in 2008 and 2010, but met or exceeded the target every year since 2010. The samples fell below the target for DIN in 2012 through 2016, c but met or exceeded the target value in subsequent years. 111. Petitioners emphasize that the EPA's Strategic Targets for nutrients in the FKNMS are not consistently being met. But the reports do show a trend of improvement, at least with respect to DIN and TP. c 112. The 2014 report documented elevated nutrient concentrations of DIN and TP in waters close to shore along the Keys, attributable to "human impact." c CD 113. The 2015, 2017, and 2018 reports exclude the data from the SHORE W stations for purposes of demonstrating compliance with target values because they "introduce a bias to the dataset which results in a reporting problem[.]"21 114. The 2017 report does include an analysis of the geographic differences between testing stations. The report indicates a significant 0 difference between the median levels of nutrients sampled in SHORE i stations when compared with the "alongshore," "channel," and "reef' stations. However, the median levels of many of the nutrients are still at or below the CD EPA targets, even measured at SHORE stations. For example, the median 0 level of TP, which the report recognizes as one of the most important determinants of local ecosystem health, at the SHORE stations was just c below .007, compared to the EPA target of.008. 115. More importantly, Petitioners focus on the SHORE station data was 0 inconsistent with their challenge that the nearshore water quality remains impaired. Petitioners' planning expert, Ms. Jetton, defined nearshore as approximately 12,000 meters from shore, not merely within 500 meters of 21 Petitioners sought to introduce raw sample data from SHORE stations and an analysis of ai said data by Kathleen McKee. That evidence was admitted as hearsay only, and was not corroborated by any non-hearsay evidence. 37 Packet Pg. 3401 Q.3.g shore. The 2017 report breaks out the "alongshore" stations as well as the N SHORE stations. That data shows the median value of TP at the alongshore stations is approximately .0055, well below the target of .008. Notably, 75 e percent of the alongshore stations sampled TP below the target .008. With respect to DIN, the median of alongshore station samples is below the target of.01; and 75 percent fall below .015. 116. In 2018, FKNMS reported a trend of increased DO (dissolved oxygen) c in both surface and bottom waters throughout the Keys, and declining turbidity in the surface waters, for the 24-year period from 1995 through 2018. Increased DO is beneficial for animal life. Declining turbidity means e CD the water is becoming clearer. The 2014 report showed no significant trends W in TP, but the 2018 report noted small, but significant, declining trends in TP values in most surface waters.22 117. In 1995, the EPA and the Department of Environmental Protection ("DEP") listed the Keys waters as "impaired," pursuant to the Clean Water Act.23 DEP is required to establish Total Maximum Daily Loads ("TMDLs") 0 for impaired water bodies, which define the maximum pollutant loading that i can be discharged to those water bodies while still achieving water quality targets. An alternative mechanism, a Reasonable Assurance Document CD ("RAD") can be developed in lieu of TMDLs when, as in the Keys, local 0 management activities are planned to achieve water quality targets. 118. The Florida Keys RADs ("FKRADs") were developed in 2008, and e each of the affected local governments became a signatory to a Stakeholder's Agreement to implement the FKRADs. The FKRADs established two sets of 0 nutrient targets: (1) an insignificant increase in concentration above natural background within the HALO zone, which is 500 meters of shore, not including canals; and (2) the average of values measured at the nearshore 22 The 2018 report does not contain the same detailed comparison of SHORE station samples with the other stations, as did the 2017 report. U 23 33 U.S.C. § 1251 et seq. 38 Packet Pg. 3402 Q.3.g (500 meters to 12,100 meters from the shoreline). The FKRADs identify N 23 impaired estuarine water body identifications ("WBIDs"). The WBIDs are Class III water bodies, defined by the Clean Water Act as "used for recreation, propagation, and maintenance of a healthy, well-balanced population of fish and wildlife." The FKRAD identifies specific restoration projects to be completed by 2020 to improve each WBID, designates the government stakeholder responsible for each project, and sets water quality c targets to be achieved by each project. 119. The FKRAD focuses on TN (total nitrogen) and TP, and establishes different water quality target values than the FKNMS. For the HALO Zone c CD the target is an "as insignificant increase above natural background for each W nutrient." "Insignificant" is defined as less than ten micrograms per liter (<10 µg/1) of TN, and < 2µg/l for TP. 120. Petitioner's planning expert, Ms. Jetton, testified that the 2018 Update to the FKRAD "tells me that the surface water still isn't able to assimilate all the nutrients that are going into it because ... we're not 0 meeting the strategic targets[.]" Ms. Jetton concluded, based on the 2018 i Update to the FKRAD, that "there should be no more development added to [the Keys] until the [WBIDs] can consistently meet their strategic targets." CD CD She further testified that the RAD documents identify the Keys' waters as 0 not meeting the DEP necessary levels of nutrients for healthy waters and that the RADs reflect "current water quality as it's been affected by the c wastewater facilities that have been upgraded in the Keys to date." 121. That testimony is unreliable. The purpose of the 2018 Update is 0 plainly set forth in the document itself: to document actions taken by stakeholders since 2011 and to address the DO impairment identified by DEP is some water segments; to include a revised approach to monitoring and reporting results; and to identify a schedule to meet water quality targets and restoration goals. E 39 Packet Pg. 3403 Q.3.g 122. The 2018 Update to the FKRAD contains neither data on samples of N TN and TP in the HALO zone waters, nor any analysis of whether the target—insignificant increases above natural background—has been achieved. The 2018 Update provides that "water quality data will be compared to the FKRAD water quality targets ... to evaluate achievement of targets," and that "[m]onitoring for success will include, among other data sets, "decrease in nearshore nutrient concentrations in comparison to water 0 quality targets and OFW background concentrations." Injection Wells and Nearshore Water Quality 123. Absent concrete evidence to support Petitioners' claim that the c CD nearshore waters have not recovered from their 1995 impaired designation W such that they can assimilate pollutants from additional development, Petitioners argue that the existing "improved" wastewater and stormwater treatment infrastructure in the Keys does not adequately protect marine and c coastal resources of the Keys, and that the addition of new development will exacerbate the problem. Specifically, Petitioners posit that shallow 0 wastewater injection wells degrade nearshore water quality. i 124. Marathon injects treated wastewater effluent into shallow injection wells, which are drilled to a depth of at least 90 feet and cased to a minimum CD depth of 60 feet. 0 125. Marathon's five injection wells are permitted to, and currently operate at, a permitted capacity of .200 million gallons per day ("MGD"), c .400 MGD, .200 MGD, .500 MGD, and .450 MGD, respectively. Marathon's injection wells are designed and permitted to exceed full build out. 0 126. Key West injects its treated wastewater effluent into deep injection wells, which are 3,000 feet deep and are cased to a minimum depth of 2,000 feet.24 24 Petitioners concede that deep injection wells have no quantified impact on the water quality of the nearshore waters of Key West or the Florida Keys. 40 Packet Pg. 3404 Q.3.g 127. Key West's injection wells are permitted at a capacity of 10 MGD, N and Key West currently uses approximately 50 percent or less of the total permitted capacity for its injection wells. 128. Islamorada does not have its own municipal wastewater effluent injection wells or wastewater treatment plant. Islamorada's wastewater is transmitted to the Key Largo Regional Wastewater Treatment Facility ("Key Largo Wastewater Treatment Facility"), which treats and injects effluent into c a deep injection well that is cased to a minimum depth of 2,000 feet. 129. The Key Largo Wastewater Treatment Facility is permitted by DEP and operates at a permitted capacity of 2 MGD. The injection wells at the c CD Key Largo Wastewater Treatment facility are designed and permitted to W exceed full build out. 130. Ms. Jetton testified that, based on reports she has reviewed, when you inject effluent into shallow injection wells, that water will reach the surface water "within a few hours or a few days." She referenced numerous scientific reports which were admitted in evidence as sources on which she 0 based her opinions. She further referred to findings in the Administration i Commission's 1995 Final Order that deep water injection wells are a better form of treatment than shallow injections wells. Finally, Ms. Jetton pointed CD to the 2014 and 2017 FKNMS reports as evidence that shallow well injections 0 may contribute to nutrients in nearshore waters. 131. The excerpt of the 2014 report introduced in evidence contains no c reference to a relationship between shallow injection wells and the water quality of nearshore waters. The 2017 report mentions there may be a 0 connection. 132. Respondents introduced the testimony of Michael C. Alfieri, who is a licensed professional geologist, certified by the National Groundwater Association as a ground water professional, and certified by the American Institute of Hydrology as a professional registered hydrogeologist. E 41 Packet Pg. 3405 Q.3.g Mr. Alfieri main practice in Florida is in karst hydrogeology, and he is one N of the authors of the definitive text in Florida on karstology. 133. Mr. Alfieri testified that the subsurface conditions in Marathon, as shown in the core samples and boring logs he personally reviewed, indicate the presence of aquitards25 and semi-confining materials, including calcite calcrete with clay silt, which would significantly inhibit vertical migration of injectate into surface water adjacent to Marathon's shallow injection wells.26 0 134. Based on his knowledge and experience, Mr. Alfieri testified that treated wastewater or stormwater injected down a shallow injection well does not rise to the surface in the nearshore waters surrounding the Keys. He c CD further explained that once treated effluent is injected into either a deep or W shallow well, it undergoes geochemical reactions as it interacts with, and is absorbed by, the surrounding rock, which reduces nutrient concentration. 135. Mr. Alfieri testified that based on the advanced wastewater treatment facilities and injection wells used by Respondents, the depths of the injection wells and their current level of usage, as well as the 0 surrounding geological features, including the confining layers, which are i horizontally transmissive, the additional residential units authorized by the Plan Amendments would have no impact on nearshore waters of the Florida CD Keys. 0 136. The undersigned finds Mr. Alfieri's testimony more persuasive and reliable than Ms. Jetton's recounting of studies undertaken by other c professionals. 137. On the theory that injected treated effluent contaminates the 0 nearshore waters of the Keys, Petitioners allege the Plan Amendments 25 Aquitards are materials that have a low potential to transmit water. Clay is the best LU material to serve as an aquitard given that it has high porosity and low permeability which �. makes it difficult for water to move through. 26 The parties stipulated that deep injection wells"do not have a quantified impact on the water quality of the nearshore waters of Key West or the Florida Keys." 42 Packet Pg. 3406 Q.3.g render Respondents' comprehensive plans internally inconsistent with the N following policies, respectively: Marathon • Infrastructure Element ("IE") Goal 3-1: "[E]nsure availability of needed public facilities associated with wastewater disposal ... in a manner that is environmentally sound and protects marine environments, including sea grass beds and nearshore waters[.]" 0 • IE Goal 3-2: "[Marathon] shall provide for environmentally ... sound 4- treatment and disposal of sewage, which meets the needs of... residents, while ensuring the protection of public health and the maintenance and protection of ground, nearshore and offshore, water quality[.]" 0 • IE Objective 3-2.2: "[Marathon] shall regulate land use and development to ... protect the functions of natural drainage features and groundwater from the impacts of wastewater systems." c U Islamorada 2I • FLU Goal 1-1, which provides in pertinent part, as follows: CD The comprehensive Plan shall provide a growth management framework that ... encourages sustainability by limiting growth in order to establish and maintain acceptable levels of service for ... wastewater services ... and ... reclaim and preserve the quality of [Islamorada's] natural resources ... [r]elies on ecological constraints to establish limits for growth ... to ensure that human 0 induced activities do not diminish assets of our 2 unique coastal environment; and provides a sound basis for developing land use controls that ... protect coastal resources, including nearshore waters, wetlands, grassbed flats, mangroves... and LU establish a basis for managing ... water quality[.] 43 Packet Pg. 3407 Q.3.g • CE Goal 6-1: "Islamorada ... shall conserve, manage, use and protect the natural and environmental resources ... based on their carrying capacity limitations to ensure continued resource availability and c environmental quality." • CE Objective 6-1.9: "Islamorada ... shall provide requirements designed to protect fisheries, wildlife and wildlife habitat from the adverse impacts of development by regulating the location, density and c W intensity of those activities that cause the adverse impact." 4- 0 Key West CD • FLU Goal 1-1: "Minimize Threats To Health, Safety, And Welfare W Which May Be Caused By Incompatible Land Uses, Environmental Degradation[.]"27 0 • CME Goal 5-1: "Coastal Management. Restrict development activities that would damage or destroy coastal resources. Protect human life c U and limit public expenditures in areas subject to destruction by natural i disasters[J" CD CD • CME Objective 5-1.1: "Protect Coastal Resources, Wetlands, Estuarine 0 Salt Pond Environmental Quality, Living Marine Resources, And Wildlife Habitats. ... (1) Preventing potentially adverse impacts of development and redevelopment on wetlands, estuaries, water resources, living marine resources, and other natural resources; 0 (2) Maintaining or improving coastal environmental quality by improving stormwater management[.]" LU 27 Petitioners inaccurately cite the monitoring measure attributable to Objective 1-1.16 as if ai it relates to Goal 1-1. The Monitoring Measure attributable to Objective 1-1.16 is "Number of building permits allocated annually in accordance with the implementing policies." 44 Packet Pg. 3408 Q.3.g • CME Policy 5-1.1.4: "Protect Living Marine Resources, Coastal Marsh, N and Seagrass Beds ... [Key West] shall seek to enhance seagrass beds and coastal nontidal wetland habitats[.]" • CME Policy 5-1.2.2: "[Key West] shall continue to limit the specific and cumulative impacts of development and redevelopment upon water quality and quantity, wildlife habitat, and living marine resources by enforcing performance standards cited herein. Wastewater system c W improvements shall also be carried out to reduce potential adverse 4- impacts on the coral reef. In amending its land development regulations, the City shall consider the establishment of additional protective policies for coral." • CME Policy 5-1.4.1: "Public Investments in Coastal High-Hazard Area. 0 Publicly funded facilities shall not be built in the Coastal High-Hazard Area, unless the facility is for the protection of the public health and safety." 0 i • CE Objective 6-1.2: "Detrimental water quality impacts, including adverse impacts to the coral reef system shall continue to be combated CD CD by public facility improvements identified in the Public Facilities 0 Element .... Monitoring Measure: Achievement of water quality ... standards." 0 c 138. Respondents' wastewater treatment plants are in compliance with their DEP wastewater treatment plant and injection well permits. 0 139. Furthermore, there have been no violations of the permits for n Respondents' wastewater treatment facilities that could potentially impair nearshore water quality. 140. As a condition precedent to issuing permits for Respondents' injection wells, DEP required Respondents to provide reasonable assurance that the 45 Packet Pg. 3409 Q.3.g operation of the wells will not cause or contribute to a violation of surface N water quality standards and will not harm environmental resources. 141. Petitioners did not prove that the Marathon Plan Amendment is internally inconsistent with the Marathon Comprehensive Plan Goal 3-1, Goal 3-2, and Objective 3.2.2. 142. Petitioners did not prove the Islamorada Plan Amendment is internally inconsistent with Islamorada Comprehensive Plan Goal 1-1, 0 Goal 6-1, and Objective 6-1.9. 143. Petitioners did not prove the Key West Plan Amendment is internally inconsistent with Key West Comprehensive Plan Goals 1-1 and 5-1; Objective c CD 5-1.1 and Policies 5-1.1.4, 5-1.2.2, and 5-1.4.1; and Objective 6-1.2. W Ecolo,ical Impacts 144. Petitioners maintain the Plan Amendments are not supported by the best available data on the ecological carrying capacity of the Keys with c regard to habitat protection. 145. The FKCCS recommended four guidelines for future development in 0 the Keys: (1) prevent encroachment into native habitat; (2) continue and i intensify existing programs (e.g., land acquisition, wastewater treatment); (3) focus future growth on redevelopment and infill; and (4) increase efforts to CD manage the resources. 0 146. Since the FKCCS was published in 2002, the local governments in the ACSC have completed numerous work programs designed to implement c the recommendations, including updating habitat mapping, maximizing grant funding for land acquisition, and acquiring environmentally-sensitive 0 lands to remove them from potential development. 147. Furthermore, the BPAS system integrates environmental concerns when scoring applications for the units allocated. In Marathon, Policy 1-3.5.4 LU affords the greatest weight to applications for development of scarified and infill lots with existing paved roads, water, and electric service. The Plan E affords the least weight to applications on lots containing sensitive areas as 46 Packet Pg. 3410 Q.3.g identified on the vegetation and species maps. Further, the Marathon plan N provides that, "in no case shall more than one (1) BPAS allocation per year be issued for properties which in part or whole designated as Hardwood c Hammock, Palm Hammock, Cactus Hammock, or Beach/Berm." 148. The Key West comprehensive plan mandates that new development preserve, at a minimum, "all wetlands and ninety (90) percent of hardwood hammocks." The Key West plan does not allow development in any wetlands c "except where State and/or federal agencies having jurisdiction provide for development rights." 149. The Islamorada comprehensive plan mandates that new development c CD preserve all undisturbed wetlands" and 90 percent of high quality tropical W hardwood hammocks on the parcel being developed. The Islamorada comprehensive plan also discourages development of lots containing both disturbed and undisturbed habitats by applying the most stringent open space requirements to development sites containing the highest quality habitats. For example, the minimum open space requirement for high quality 0 hammock is .90; while for undisturbed saltmarsh and buttonwood wetlands, i as well as undisturbed mangrove and freshwater wetlands, the ratio is 1.0. The plan requires an open space ratio of .90 for disturbed saltmarsh and CD buttonwood wetlands, as well as disturbed mangrove and freshwater 0 wetlands. 150. Nevertheless, Petitioners argue that the Plan Amendments allow c new units to be built in disturbed hammock which constitutes additional encroachment into hammock, contrary to the FKCCS. Petitioners point to 0 the provision of the Plan Amendments which provides that the workforce affordable units "shall not be placed in any habitat defined as mangroves, saltmarsh & buttonwood, hardwood hammock,[28] or fresh water wetlands (disturbed categories excepted)[.]" 211 The Islamorada Plan Amendment refers to"tropical" hardwood hammock. 47 Packet Pg. 3411 Q.3.g 151. The provisions of the Plan Amendments must be read together with N existing comprehensive plan provisions. When read together, the Marathon comprehensive plan may not allow any of the affordable-early evacuation units to be built on any hammock habitat because it only allows one BPAS permit per year be allocated to any parcel containing designated hardwood hammock. Since the Plan Amendment requires the units be built as multifamily, thereby utilizing multiple allocations for one application, it is c impossible to permit the new affordable units on any lot designated hardwood hammock. 152. Further, the Marathon BPAS weighting system will apply to the new c CD allocations,29 which will continue to direct development to scarified lots, and W those lots with maximum disturbed areas. The Islamorada plan open space requirements will apply to disincentivize development of parcels with high quality hammock, buttonwood wetlands, and freshwater wetlands, by c requiring the most stringent open space ratios. 153. Petitioners did not prove the Plan Amendments are not based on 0 data and analysis of the ecological carrying capacity of the Keys. i 154. Petitioners allege that the Plan Amendments are internally inconsistent with the following provisions of the Marathon and Islamorada CD plans relating to ecological concerns: 0 Islamorada: • GOAL 1-1:IMPLEMENT FUTURE LAND USE VISION, which reads, in pertinent part, as follows: [Islamorada was] incorporated to create a Comprehensive Plan to reclaim the Keys by conserving, preserving, and retaining our y remarkable assets—our waters and natural environment—and our quality of life; Encourages sustainability by limiting growth in order to ... reclaim and preserve the quality of our natural 29 Only the Key West Plan Amendment exempts the allocation of the affordable-early evacuation units from the BPAS. 48 Packet Pg. 3412 Q.3.g resources; Relies on ecological constraints to N establish limits for growth and create standards and criteria to ensure that human induced activities do not diminish assets of our unique coastal environment[.] • Policy 2-1.9.3: Participate in the Florida Keys Carrying Capacity Study. ... "[Islamorada] shall continue to support the technical undertakings of this study, and the establishment of carrying capacity c limitations for the Florida Keys." 0 • Goal 6-1: "Islamorada ... shall conserve, manage, use and protect the natural and environmental resources ... based on their carrying capacity limitations to ensure continued resource availability and environmental quality." 0 • Policy 6-1.4.4: "Islamorada ... shall use the best available technical criteria and information to formulate regulations and ordinances which shall ensure that future development is compatible with the c U functioning and carrying capacity of existing natural systems and 2 i resources conservation." Marathon CD • Objective 1-2.1: which calls for adequate public facilities and services for future growth "to ... protect valuable natural resources...." 0 155. Petitioners did not prove the Marathon Plan Amendment is internally inconsistent with Objective 1-2.1. c 156. Petitioners did not prove the Islamorada Plan Amendment is internally inconsistent with Goal 1-1, Policy 2-1.9.3, Goal 6-1, and Policy 6-1.4.4. Other Contentions 157. Petitioners alleged the Plan Amendments violate section E 163.3177(6)(a)2., which reads, in pertinent part, as follows: 49 Packet Pg. 3413 Q.3.g 2. [P]lan amendments shall be based upon surveys, N studies, and data regarding the area, as applicable, including: c a. The amount of land required to accommodate anticipated growth. b. The projected permanent population of the area. c. The character of undeveloped land. d. The availability of water supplies, public c facilities, and services. c e. The need for redevelopment, including renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with W the character of the community. f. The compatibility of uses on lands adjacent to or closely proximate to military installations. 0 g. The compatibility of uses on lands adjacent to an airport[.] E 0 h. The discouragement of urban sprawl. i i. The need for job creation, capital investment, and economic development that will strengthen and CD diversify the community's economy. 0 j. The need to modify land uses and development patterns with antiquated subdivisions. (emphasis added). 158. Many of the listed criteria are not applicable to the Plan E Amendments because the Plan Amendments do not propose a specific type of development at a specific location, do not implicate antiquated subdivisions, and do not specifically implicate redevelopment of blighted areas. 159. Respondents considered the availability of water supplies and other public services, such as the capacity of wastewater treatment facilities, during plan review and adoption. Respondents also considered the need of 50 Packet Pg. 3414 Q.3.g the service sector of the economy—including retail and restaurant services, N as well as public school and first-responder services—during plan review and adoption. 160. Petitioners did not prove the Plan Amendments are not based upon applicable surveys, studies, and data as required by section 163.3177(6)(a)2. CONCLUSIONS OF LAW 0 161. The Division of Administrative Hearings has jurisdiction over the subject matter and parties hereto pursuant to sections 120.569, 120.57(1), and 163.3184(5), Florida Statutes (2019). c CD 162. To have standing to challenge or support a plan amendment, a W person must be an "affected person," as defined in section 163.3184(1)(a). 163. Petitioners are all "affected persons" with standing to bring this action pursuant to 163.3184(1)(a). Y 164. "In compliance" means "consistent with the requirements of §§ 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, and 163.3248, with the 0 appropriate strategic regional policy plan, and with the principles for guiding i development in designated areas of critical state concern and with part III of chapter 369, where applicable." § 163.3184(1)(b), Fla. Stat. CD 165. Respondents' determinations that the Plan Amendments are "in 0 compliance" are presumed to be correct and must be sustained if the determinations of compliance are fairly debatable. See § 163.3184(5)(c), Fla. c Stat. 166. "The `fairly debatable' rule is a rule of reasonableness; it answers the 0 question of whether, upon the evidence presented to the [government] body, the [government's] action was reasonably-based." Lee Cty. u. Sunbelt Equities, II, Ltd. P'ship, 619 So. 2d 996, 1002 (Fla. 2d DCA 1993) (citing LU Town of Indialantic u. Nance, 400 So. 2d 37, 39 (Fla. 5th DCA 1981)). 51 Packet Pg. 3415 Q.3.g 167. The mere existence of contravening evidence is not sufficient to N establish that a land planning decision is "fairly debatable." It is firmly established that: c [E]ven though there was expert testimony adduced in support of the City's case, that in and of itself does not mean the issue is fairly debatable. If it did, every zoning case would be fairly debatable and the City would prevail simply by submitting an expert who testified favorably to the City's position. Of course that is not the case. The trial judge still must determine the weight and credibility factors to be attributed to the experts. Here the final judgment shows that the judge did not assign much c weight or credibility to the City's witnesses. Boca Raton u. Boca Villas Corp., 371 So. 2d 154, 159 (Fla. 4th DCA 1979). 168. The standard of proof to establish a finding of fact is preponderance 0 of the evidence. See § 120.57(1)0), Fla. Stat. The MOU 169. Petitioners allege, as grounds for finding the Plan Amendments not 0 "in compliance," that the Plan Amendments are inconsistent with the MOU. i Petitioners' allegations of inconsistency with the MOU are not well taken. Only those specific items listed in the statutory definition of"in compliance" CD may form the basis for finding the Plan Amendments not "in compliance." See 0 Consol. Citrus u. Martin Cty., Case No. 13-3393 (Fla. DOAH Jan. 23, 2013, Order on Respondent's Mot. in Lim. or in the Alter. Mot. to Strike) (whether c plan amendment is consistent with sections 163.3162, 193.461, 823.14, Florida Statutes, and Florida Administrative Code Rules 6213-33 and 40E-8 0 are not compliance issues); Cemex Constr. Materials Fla. u. Lee Cty., Case No. 10-2988 (Fla. DOAH Feb. 21, 2012; Fla. DCA Apr. 10, 2012) (whether plan amendment is consistent with section 337.0261(3), Florida Statutes, is not a compliance criterion); Monkus u. City of Miami, Case No. 04-1080 (Fla. DOAH Sept. 3, 2004; Fla. DCA Oct. 26, 2004) (consistency with land E development regulations is not a compliance issue); Emerald Lakes Residents' 52 Packet Pg. 3416 Q.3.g Ass'n v. Collier Cty., Case No. 02-3090 (Fla. DOAH Feb. 10, 2003; Fla. DCA N May 8, 2003) (whether plan amendment was adopted in conformity with procedural requirements of section 163.3185(15)(c) is not a compliance issue); Current u. Town of Jupiter, Case No. 03-0718 (Fla. DOAH Oct. 24, 2003; Fla. DCA Apr. 9, 2004) (whether plan amendment conflicts with local government resolution is not a compliance issue); Durham Park Neighborhood u. City of Miami, Case No. 06-0759 (Fla. DOAH May 24, 2006 Order Granting Leave to c Amend but Striking Portions of Amended Pet.) (striking Petitioners' claims that plan amendment is not consistent with Florida Administrative Code Rule 9J-11 because the provisions are not compliance criteria); and Pyle u. c CD City of St. Pete Beach, Case No. 08-4772 (Fla. DOAH Jan. 28, 2009, Order on W Mot. to Strike) (requirement to submit a "complete" plan amendment package pursuant to section 163.32456 is not a compliance issue). 170. If the MOU was adopted by reference in Respondents' comprehensive plans, Petitioners' argument might have had merit. However, none of the comprehensive plans adopts the MOU by reference. The MOU is a separate 0 stand-alone document which may be amended by agreement of the parties, i outside of the statutory plan amendment process. Internal Inconsistences CD 171. Section 163.3177(2) mandates "the several elements of the 0 comprehensive plan shall be consistent." 172. Petitioners did not prove, beyond fair debate, that the Plan c Amendments are inconsistent with specifically-identified provisions of Respondent's plans relating to hurricane evacuation clearance times, quality 0 of nearshore waters, wastewater treatment, or habitat protection. 173. Petitioners did not prove beyond fair debate that the Plan Amendments are inconsistent with section 163.3177(2). Data and Analysis 174. Section 163.3177(1)(f) requires plan amendments to be "based upon E relevant and appropriate data and analysis" by the local government, and 53 Packet Pg. 3417 Q.3.g includes "surveys, studies, community goals and vision, and other data N available at the time of adoption." 175. To be based on data "means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan amendment." § 163.3177(1)(f), Fla. Stat. 176. Based upon the foregoing Findings of Fact, Petitioners did not prove 0 the Plan Amendments are not supported by adequate data and analysis, or fail to react to professionally-acceptable data in an appropriate way. 177. Petitioners did not prove beyond fair debate that the Plan c CD Amendments are inconsistent with section 163.3177(1)(f). W Principles for Guidin, Development 178. "In compliance" is defined to include consistency with the Principles, which apply to both Marathon and Islamorada.30 Petitioners alleged the Plan Amendments are inconsistent with section 380.005(9), which requires plan amendments comply with the requirement to "maintain[] a hurricane 0 evacuation clearance time for permanent residents of no more than 24 hours." i Based on the foregoing Findings of Fact, it is at least fairly debatable that the Plan Amendments will not cause evacuation clearance time of the ACSC to CD exceed the 24-hour evacuation clearance time. 0 179. Furthermore, the Principles "may not be construed or applied in isolation," but must be "construed as a whole." § 380.0552(7), Fla. Stat. The c undersigned is required to balance the Principles as applied to Petitioners' challenges. One of the other major Principles implicated by the Marathon 0 and Islamorada Plan Amendments is to "[m]ake[] available adequate affordable housing for all sectors of the population of the Florida Keys." § 380.0552(7)(1), Fla. Stat. The parties stipulated to the need for affordable LU housing, which has a documented impact on the Keys' economy. The need to 30 The Principles for Guiding Development in the Key West ACSC make no reference to hurricane evacuation clearance times. See Fla. Admin. Code R. 28-36.003. 54 Packet Pg. 3418 Q.3.g house the workforce for the service sector of the Keys' economy implicates N another Principle: to ensure "the maximum well-being of the Florida Keys and its citizens through sound economic development." § 380.0552(7)(d), Fla. Stat. 180. With regard to Key West, Petitioners urge the Plan Amendment is inconsistent with Florida Administrative Code Rule 28-36.003(1)(a), (h), and (2)(a)7., which require plan amendments to "[s]trengthen local government c capabilities for managing land use and development"; "[p]rotect ... the public health, safety, welfare, and economy of the City of Key West, and [maintain] Key West as a unique Florida Resource"; and adopt an "evacuation plan c CD consistent with regional and [Monroe] County plans ... which provides an W opportunity for residents and visitors to evacuate to a place of safety during a natural disaster," respectively. 181. Based upon the foregoing Findings of Fact, Petitioners did not prove beyond fair debate that the Key West Plan Amendment is inconsistent with the listed Principles. 0 Other Contentions i 182. Petitioners raised additional arguments, which were likewise not proven beyond fair debate. CD 183. Petitioners alleged the Plan Amendments violate section 0 163.3177(6)(a)2., which requires consideration of specifically-listed types of data and analysis for adoption of plan amendments. Respondents considered c the availability of water supplies and other public services during plan review and adoption. Respondents also considered the need of the service 0 sector of the economy—including retail and restaurant services, as well as public school and first-responder services—during plan review and adoption. 184. Based on the foregoing Findings of Fact, Petitioners did not prove, beyond fair debate, that the Plan Amendments are inconsistent with section 163.3177(6)(a)2. E 55 Packet Pg. 3419 Q.3.g 185. Petitioners contend the Plan Amendments were inconsistent with N section 163.3177(6)(a)8., which requires, as follows: 8. Future land use map amendments shall be based c upon the following analysis: a. An analysis of the availability of facilities and services. b. An analysis of the suitability of the plan amendment for its proposed use considering the c character of the undeveloped land, soils, topography, natural resources, and historic resources on site. (emphasis added). 186. The cited statutory section is inapplicable to the Plan Amendments W because they are not future land use map amendments. Conclusion 187. For the reasons stated above, Petitioners have not proven beyond fair debate that the Plan Amendment is not "in compliance," as that term is defined in section 163.3184(1)(a). 0 i RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is CD RECOMMENDED that the Department of Economic Opportunity enter a final 0 4- order determining the City of Marathon Comprehensive Plan Amendment 2018-01, adopted on October 23, 2018; City of Key West Comprehensive Plan c Amendment 19-06, adopted on April 4, 2019; and Islamorada, Village of Islands, Comprehensive Plan Amendment 19-03, adopted on March 5, 2019; 0 are in compliance," as that term is defined in section 163.3184(1)(b). 56 Packet Pg. 3420 Q.3.g DONE AND ENTERED this 24th day of April, 2020, in Tallahassee, Leon N County, Florida. c SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us c CD Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2020. 0 COPIES FURNISHED: Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. U Suite C 2 i 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) CD Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. Suite C c 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) 0 Shai Ozery, Esquire Robert N. Hartsell P.A. Suite C 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) 57 Packet Pg. 3421 Q.3.g Barton William Smith, Esquire N Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 c (eServed) Christopher B. Deem, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) c 2 Nicola J. Pappas, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 W (eServed) Richard J. Grosso, Esquire Richard Grosso P.A. 0 Mail Box 300 6511 Nova Drive Davie, Florida 33317 E (eServed) 0 Shawn D. Smith, City Attorney City of Key West, City Attorney's Office 1300 White Street CD Post Office Box 1409 Key West, Florida 33040 (eServed) c George B. Wallace, Esquire City of Key West, City Attorney's Office 1300 White Street E Post Office Box 1409 c Key West, Florida 33040 (eServed) Roget V. Bryan, Esquire Islamorada, Village of Islands 86800 Overseas Highway Islamorada, Florida 33036 E (eServed) 58 Packet Pg. 3422 Q.3.g Janay Lovett, Agency Clerk N Department of Economic Opportunity Caldwell Building 107 East Madison Street c Tallahassee, Florida 32399-4128 (eServed) Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street c Tallahassee, Florida 32399-4128 (eServed) 0 William Chorba, General Counsel Department of Economic Opportunity W Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) 0 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS m All parties have the right to submit written exceptions within 15 days from U the date of this Recommended Order. Any exceptions to this Recommended 2I Order should be filed with the agency that will issue the Final Order in this case. CD c 0 59 Packet Pg. 3423 Q.3.g STATE OF FLORIDA N DEPARTMENT OF ECONOMIC OPPORTUNITY c CECILIA MATTINO, Petitioner, VS. DOAH CASE NO.: 18-6250GM CITY OF MARATHON, FLORIDA, Respondent, 2 0 4- CD NAJA GIRARD, W Petitioner, VS. c DOAH CASE NO.: 19-1526GM CITY OF KEY WEST, FLORIDA, Respondent, c CATHERINE BOSWORTH, Petitioner, , c VS. DOAH CASE NO.: 19-1839GM c ISLAMORADA, VILLAGE OF ISLANDS, FLORIDA, Respondent, 0 _ ... ORDER REMANDING CASE TO DIVISION OF ADMINISTRATIVE HEARINGS THIS CAUSE came before the Department of Economic Opportunity (DEO) for consideration of a Recommended Order, which recommends the DEO enter a Final Order finding Packet Pg. 3424 Q.3.g the comprehensive plan amendments subject to challenge in the above-styled actions in compliance. c After reviewing the record, including admitted exhibits, considering the applicable law, and otherwise being fully apprised on all material premises,this matter is hereby REMANDED to the Division of Administrative Hearings for the following reasons: 1. The Recommended Order fails to include Findings of Facts and Conclusions of Law as to a dispositive issue of whether the plan amendments establish meaningful and predictable 4- standards for the use and development of land as required by section 163.3177(1),Florida Statutes. CD 2. Amongst other issues raised in their Exceptions, the petitioners have taken W exception to the Recommended Order's failure to include Findings of Facts and Conclusions of Law on this issue. (Exception No. 17) The petitioners have asserted, and the DEO, upon review 0 of the record concurs, that the issue was: (1) raised in the petitions for administrative review, (2) identified in the parties' Amended Joint Pre-Hearing Stipulation as an issue remaining for c U determination, (3) discussed during the five-day hearing, and (4) addressed by the parties in their 21 proposed recommended orders. CD 3. The DEO does not have the authority to make findings ab initio.See Cohn v. Dep't 0 of Prof'l Regulation, 477 So.2d 1039,1047 (Fla. 3d DCA 1985). The DEO's role is not to make 0 independent determinations of disputed issues of fact in a review proceeding, it may only consider whether findings actually made are sustained by the evidence. Id. As the court in Cohn held "the 0 U appropriate remedy is not for the agency(or the court of appeal) to reach its own conclusion, but 2 rather to remand for the officer to do so."Id. See also, Borges v. Dept of Health, 143 So.3d 1185 (Fla. 3d DCA 2014) ("the recommended order should address the factual controversies that were Packet Pg. 3425 Q.3.g the subject of the hearing to the extent they are relevant to the recommended disposition or, N however briefly, indicate why the testimony was not pertinent.") c WHEREFORE, it is ordered that: A)These cases are REMANDED to the Division of Administrative Hearings for the limited purposes of issuing Findings of Facts and Conclusions of Law on a dispositive issue of whether the plan amendments establish meaningful and predictable standards as required by section 163.3177(1), Florida Statutes. 4- B)Rulings on all pending Exceptions to the Recommended Order,not ruled on above, and CD the pending motions filed by the petitioners are deferred until,if applicable,a Recommended Order W on Remand is submitted to DEO. No additional Exceptions objecting to the Recommended Order submitted on April 24, 2020, will be accepted. 0 C) No final ruling will be made on the ALJ's ultimate recommendation until after a Recommended Order on Remand is submitted to DEO, if applicable. c U D) Exceptions to any additional Findings of Fact and Conclusions of Law included in a 2 subsequent Recommended Order on Remand shall be filed and served within the time periods CD prescribed in Rule 28-106.217, F.A.C. 0 DONE and ORDERED this 215t day of August, 2020 0 Mark Buckles, Interim General oounsel Department of Economic Opportunity Packet Pg. 3426 Q.3.g CERTIFICATE OF FILING AND SERVICE N I HEREBY CERTIFY that the original of the foregoing Order Remaining Case to Division of Administrative Hearing has been filed with the undersigned Agency Clerk, and that true and correct copies have been furnished to the following persons by the methods indicted this 21 st day of August, 2020. 0 2 0 A cy C F orida Department of Economic Opportunity 107 East Madison Street, MSC 110 W Tallahassee, FL 32399-4128 0 Bic° U.S. Mail The Honorable Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings U The DeSoto Building 2I 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 CD Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. Suite C m 61 Northeast 1" Street Pompano Beach, Florida 33060 Sara M. Hayter, Esquire Robert N. Hartsell, P.A. c Suite C 61 Northeast 1 St Street y Pompano Beach, Florida 33060 Shai Ozery, Esquire Robert N. Hartsell, P.A. Suite C 61 Northeast 1" Street � Pompano Beach, Florida 33060 Packet Pg. 3427 Q.3.g Barton William Smith, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 Christopher B. Deem, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 0 Nicola J. Pappas, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33030 c Richard J. Grosso, Esquire W Richard Grosso, P.A. Mail Box 300 6511 Nova Drive Davie, Florida 3317 0 Shawn D. Smith, City Attorney City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 Key West, Florida 33040 i George B. Wallace, Esquire City of Key West, City Attorney's Office CD 1300 White Street Post Office Box 1409 0 Key West, Florida 33040 0 Robert V. Bryan, Esquire Islamorada, Village of Islands 86800 Overseas Highway Islamorada, Florida 33036 0 LU Packet Pg. 3428 Q.3.g STATE OF FLORIDA N DIVISION OF ADMINISTRATIVE HEARINGS c CECELIA MATTINO, Petitioner, vs. Case No. 18-625OGM c CITY OF MARATHON, FLORIDA, 2 0 Respondent. NAJA GIRARD, r9 Petitioner, vs. Case No. 19-1526GM 0 CITY OF MARATHON, FLORIDA, Respondent. U CATHERINE BOSWORTH, 2 Petitioner, CD CD vs. Case No. 19-1839GM 0 CITY OF MARATHON, FLORIDA, c Respondent. c RECOMMENDED ORDER ON REMAND A duly-noticed final hearing was held in this matter in Marathon, Florida, on December 9 through 13, 2019, before Suzanne Van Wyk, an Administrative Law Judge assigned by the Division of Administrative Hearings. Packet Pg. 3429 Q.3.g APPEARANCES N For Petitioners: Richard J. Grosso, Esquire Richard Grosso, P.A. 6511 Nova Drive, Mail Box 300 Davie, Florida 33317 Sarah Hayter, Esquire Shai Ozery, Esquire Robert Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, FL 33060 2 0 For Respondents City of Marathon; and Islamorada, Village of Islands, 0 Florida CD Nicole Pappas, Esquire W Barton Smith, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 For Respondent, City of Key West: George Wallace, Esquire City of Key West, City Attorney's Office �I 1300 White Street Post Office Box 1409 Key West, Florida 33040 0 STATEMENT OF THE ISSUE Whether City of Marathon ("Marathon") Comprehensive Plan Amendment c 2018-01, adopted on October 23, 2018 (the "Marathon Plan Amendment"); City of Key West ("Key West") Comprehensive Plan Amendment 19-06, 0 adopted on April 4, 2019 (the "Key West Plan Amendment"); and Islamorada, Village of Islands ("Islamorada") Comprehensive Plan Amendment 19-03, adopted on March 5, 2019 (the "Islamorada Plan Amendment") (collectively, 2 Packet Pg. 3430 Q.3.g the "Plan Amendments"), are "in compliance," as that term is defined in N section 163.3184(1)(b), Florida Statutes (2019).1 c PRELIMINARY STATEMENT On November 26, 2018, Petitioner, Cecilia Mattino, filed a Petition with the Division of Administrative Hearings ("Division") challenging the Marathon Plan Amendment as not based on relevant and appropriate data 0 and analysis and internally inconsistent with the City of Marathon Comprehensive Plan (the "Marathon Plan"), among other allegations, in c violation of the Community Planning Act chapter 163, part II, Florida CD Statutes ("the Act"). Ms. Mattino's petition was assigned to the undersigned W as Case No. 18-6250. On March 1, 2019, Petitioner, Naja Girard, filed a Petition with the Division challenging the Key West Plan Amendment as violative of the Act on many of the same grounds. Ms. Girard's Petition was assigned to the 0 undersigned as Case No. 19-1526. i On April 9, 2019, Petitioner, Catherine Bosworth, filed a Petition with the CD Division challenging the Islamorada Plan Amendment as violative of the Act 0 on many of the same grounds as the other Petitioners. Ms. Bosworth's Petition was assigned to Administrative Law Judge Francine Ffolkes as Case c No. 19-1839. That case was transferred to the undersigned on April 22, 2019. 0 Petitioners filed an Amended Joint Motion to Consolidate ("the Motion") the three cases, to which Respondents, Marathon and Islamorada, filed responses in opposition. Following a telephonic hearing on the Motion, the undersigned entered an Order of Consolidation on May 10, 2019. I Except as otherwise noted, all references to the Florida Statutes are to the 2018 version, U which was in effect when the Plan Amendments were adopted. 3 Packet Pg. 3431 Q.3.g The consolidated cases were scheduled for final hearing on October 7 N through 11, 2019; however, due to the undersigned's family medical emergency, the final hearing was continued and rescheduled to December 9 c through 13, 2019. The final hearing commenced as rescheduled in Marathon, Florida. Petitioners testified on their own behalves, and offered the testimony of: c Rebecca Jetton, accepted as an expert in comprehensive planning and planning in the Florida Keys; Martin Senterfitt, the Monroe County Director of Emergency Management; and Richard F. Ogburn, accepted as an expert in c comprehensive planning. Petitioners introduced the following Exhibits which W were admitted in evidence: 2, 5, 6, 8, 10, 11, 34, 39, 47, 48, 54, 55, 60, 70, 71, 73 through 77, 83, 86 through 91, 94, 97, 100 through 102, 105, 106, 108, 117, 118 127 through 129 131 139 (appendix 1C) 140 147 151 158 188 189 c 221, 223, and 228. Petitioners proffered Exhibit 111, which was not admitted in evidence, but travels with the record of this proceeding. 0 i Respondents offered the testimony of. George Garrett, Marathon's planning director; Ty Harris, Islamorada's planning director; and Patrick CD Wright, Key West's former planning director; each of whom is accepted as an 0 expert in comprehensive planning; Michael Alfieri, accepted as an expert in hydrogeology and karstology; William Precht, accepted as an expert in c marine ecology; and Joaquin Vargas, accepted as an expert in transportation planning. 0 Respondents introduced Exhibits 1 through 17, 20 through 66, 68 through 83, 85 through 131, 133, and 135 through 153, which were admitted in evidence. 4 Packet Pg. 3432 Q.3.g The parties received the five-volume Transcript of the final hearing on N February 3, 2020,2 and on February 6, 2020, Petitioners requested an extension of time to file proposed recommended orders by March 13, 2020, which was granted. The parties' Proposed Recommended Orders were timely filed and have been carefully considered by the undersigned in the preparation of this Recommended Order. 0 Evidentiary Considerations Petitioners sought to introduce the deposition testimony of two additional witnesses: Kathleen McKee and Donald Maynard. While the deposition c CD CD transcripts were admitted, they constitute hearsay for which no exception C under either section 90.803 or 90.804, Florida Statutes, applies. Section 90.803(22), which provides an exception from hearsay for former testimony given in a deposition taken in the course of the same proceeding, if the party c against whom the deposition is offered had the same motive to develop the testimony, has been declared unconstitutional. See Grabau u. Dept of Health, 0 816 So. 2d 701, 709 (Fla. 1st DCA 2002). Further, Petitioners were unable to i make the required showing of unavailability in order to introduce the former testimony of the two witnesses under the hearsay exception provided in CD section 90.804(2). Petitioners offered no non-hearsay evidence to corroborate 0 the hearsay depositions of Ms. McKee and Mr. Maynard. 0 Respondents objected to the introduction of a number of exhibits relied upon by Petitioners' expert planning witness, Ms. Jetton, in formulating her 0 opinions regarding whether shallow injection wells contribute to nearshore water pollution. The articles were written by marine scientists, biologists, microbiologists, chemists, and other experts, and published in a variety of scientific journals. An expert may rely upon facts or data of which the expert 2 The official Transcript was not filed with the Division until March 16, 2020, although the parties provided the undersigned with a copy prior to that date. 5 Packet Pg. 3433 Q.3.g does not have personal knowledge, if the facts and data are the type N reasonably relied upon by experts in the particular field to support the opinion. See § 90.704, Fla. Stat. The expert may even rely upon inadmissible evidence (i.e., hearsay) if the evidence is of a type "reasonably relied upon by experts in the subject to support the opinions expressed[.]" Id. In this case, Respondents' objections are well-taken. Ms. Jetton is an expert in comprehensive planning, very experienced and well-versed in the planning 0 history of the Keys, particularly as a former employee of the state agency with oversight over planning and development in the Keys. However, Ms. Jetton is not a biologist, chemist, marine scientist, or other scientific c CD CD expert who would typically rely upon the studies and publications in C scientific journals for formulating an opinion on, for example, "the fate and transport of sewage in the subsurface environment and the potential for contamination of marine surface waters[.]"3 The documents on which Ms. Jetton relied in formulating her expert 0 planning opinions were admitted, but those documents remain i uncorroborated hearsay. The undersigned has given the appropriate weight to Ms. Jetton's testimony on these issues. CD Remand The undersigned's Recommended Order was entered on April 24, 2020, c and forwarded to the Department of Economic Opportunity ("DEO") for issuance of a final order. Following the consideration of the parties' 0 Exceptions to the Recommended Order, DEO remanded these cases to the undersigned for the "limited purposes of issuing Findings of Fact and Conclusions of Law" on the issue of"whether the plan amendments establish LU 3 John H. Paul, Viral Tracer Studies Indicate Contamination of Marine Waters by Sewage Disposal Practices in Key Largo, Florida,Applied and Envtl. Microbiology, 2230-34(June 1995). 6 Packet Pg. 3434 Q.3.g meaningful and predictable standards as required by section 163.3177(1), N Florida Statutes." FINDINGS OF FACT c The Parties and Standing 1. Ms. Mattino resides in Marathon with her daughter and her fiance. She submitted written objections to Marathon regarding the Marathon Plan Amendment prior to the October 23, 2018 public hearing at which Marathon 0 adopted the Plan Amendment. 2 2. Ms. Mattino's daughter is severely disabled, requires specialized equipment (including a specialized wheelchair), and requires full-time care, c CD for which Ms. Mattino relies upon a variety of caretakers. Her daughter has W to be transported in a specially-equipped vehicle to accommodate the wheelchair and other equipment. 3. In the event Ms. Mattino is required to evacuate for a hurricane, she will need to bring an additional vehicle to transport her daughter's medical equipment, which requires additional personnel. 0 4. Prolonged car rides are dangerous for Ms. Mattino's daughter because i she has a seizure disorder that worsens when she is aggravated or stressed. Prolonged car rides are also stressful for Ms. Mattino, who has high blood CD pressure and has had several heart attacks. 0 5. Ms. Mattino evacuated for Hurricane Irma and testified that she encountered heavy traffic, which was made more stressful by the need to stop c approximately every two hours to attend to her daughter's medical needs. 6. Ms. Mattino claims that if the Plan Amendments increase the amount 0 of time it takes her to evacuate the Florida Keys before a hurricane, it would cause additional stress and would put her and her daughter's health at risk. Ms. Mattino maintains these concerns are unique to her and her family and that emergency evacuation is more difficult and dangerous for her and her family than it is for the general public. E 7 Packet Pg. 3435 Q.3.g 7. Ms. Bosworth resides in Islamorada with her daughter, son-in-law, and N their two children. She submitted written objections to the Islamorada Plan Amendment prior to the April 4, 2019 public hearing at which Islamorada adopted the Plan Amendment. 8. Ms. Bosworth previously evacuated for Hurricanes Andrew and Irma, which required preparation time to gather her pets, pack pet supplies, and secure her boat, as well as secure her outdoor belongings and put up her 0 hurricane shutters. Securing her boat and putting up her shutters requires the assistance of her son-in-law. Ms. Bosworth believes her circumstances are unique because her son-in-law is a fire fighter and paramedic in Parkland, c CD CD Florida, and is not always available to help her prepare her property for a C hurricane. 9. Ms. Bosworth claims that if traffic congestion increases or worsens as a result of the Plan Amendments, it would affect her and her family because she would be concerned that she would get stuck on the highway while trying to evacuate for a hurricane. Further, Ms. Bosworth testified that she and her 0 family enjoy going out on the boat and snorkeling and that if Islamorada's i nearshore water quality became degraded or impaired it would affect her quality of life. CD 10. Ms. Girard is a resident of Key West. She submitted oral or written 0 objections to the Key West Plan Amendment prior to the March 5, 2019 public hearing at which Key West adopted the Plan Amendment. c 11. Ms. Girard testified that, due to her and husband's marine-based business and residential tenants, she and her husband would wait until the 0 very last minute to evacuate regardless of when an evacuation advisory was issued by the Monroe County Emergency Management Office. 12. Ms. Girard did not evacuate for Hurricane Irma or any other hurricane since moving to a site-built home in Key West in 2007.4 4 Ms. Girard previously lived on vessels in the Key West area. 8 Packet Pg. 3436 Q.3.g 13. Marathon, Islamorada, and Key West, are all municipalities with the N duty and authority to adopt a comprehensive plan, pursuant to section 163.3167, Florida Statutes (2019). Back round 14. In 1972, the Florida Legislature enacted the Environmental Land and Water Management Act, which provided the basis for state designation of Areas of Critical State Concern ("ACSC").5 The statute provides criteria for 0 designating an ACSC, which is generally "[a]n area containing ... environmental or natural resources of regional or statewide importance," such as wildlife refuges, aquatic preserves, and state environmentally c CD endangered lands. § 380.05(2), Fla. Stat. (2019).6 W 15. In 1974, the Florida Keys (Monroe County and its municipalities) were designated an ACSC due to the area's environmental sensitivity and mounting development pressures. 16. The designation was effectuated by the adoption in 1979 of section 380.0552, Florida Statutes, the "Florida Keys Area Protection Act." The Act 0 establishes the legislative intent to establish a land use management system i that, among other things, "protects the natural environment," "conserves and promotes the community character," "promotes orderly and balanced growth CD in accordance with the capacity of available and planned public facilities and 0 services," and "promotes and supports a diverse and sound economic base" in the Keys. § 380.0552(2), Fla. Stat. (2019). c 5 The Environmental Land and Water Management Act was enacted prior to the 1985 c Growth Management Act, chapter 163,part II, when most local governments did not have U programs and personnel to guide development in a manner that would ensure protection of 2 natural resources. s The statute contains additional specific criteria for designation,including the economic and ecological value of the area;presence of critical habitat of any state or federally designated threatened or endangered plant or animal species;inherent susceptibility to substantial ;j development due to its geographical location or natural aesthetics; and the anticipated effect of development on the environmental or natural resources of regional or statewide E importance. § 380.05(2), Fla. Stat. (2019). 9 Packet Pg. 3437 Q.3.g 17. The ACSC designation transferred all local Keys planning and N development review and approval rights to the state land-planning agency, the Florida Department of Community Affairs ("DCA").7 While the Keys local governments can adopt and amend their plan and land development regulations, those provisions do not take effect until approved by administrative rule. See § 380.0552(9), Fla. Stat. 18. In 1986, Monroe County updated its comprehensive plan to be c consistent with the 1985 Growth Management Act.8 Several administrative challenges followed, initiated by both DCA and private entities and 0 individuals. CD 19. Monroe County revised its comprehensive plan in 1993 to resolve W many of the issues raised in the litigation, but those amendments were again challenged in administrative proceedings. 20. The second challenge culminated in a final order of the Administration Commission in 1995 finding the 1993 Monroe County Plan not "in compliance," with the Act and the Principles for Guiding Development in the 0 Keys ACSC ("the Principles"), which are adopted by rule of the i Administration Commission. The Final Order found that "the environment of the ... Keys is the very essence of Monroe County's economic base. The CD uniqueness of the environment ... and the current condition of the 0 environment must be addressed in any growth management decision[]." DCA u. Monroe Cty., 1995 Fla. ENV LEXIS 129 (Fla. ACC 1995). c 21. The litigation highlighted aspects of the Florida Keys ecosystem as having limited capacity to sustain additional impacts from development. Of 0 particular concern was the declining water quality of the nearshore environment due to lack of central sewer facilities, the loss of habitat for 7 The 2011 Legislature transferred the DCA Division of Community Planning, via Type II �. transfer, to the Department of Economic Opportunity. See eh. 2011-142, § 3, Laws of Fla. s The Growth Management Act was significantly amended and renamed the"Community U Planning Act,"by chapter 2011-142, Laws of Florida. 10 Packet Pg. 3438 Q.3.g state and federally-listed species, public safety in the event of hurricanes, N and a deficit of affordable housing. Relevant to Petitioner's challenge, the Final Order found that the ability of the nearshore waters of the Keys to withstand additional degradation from sewage and stormwater discharges "has already been reached or even exceeded," and that development of the Keys "is degrading the nearshore waters at or over carrying capacity." 22. The 1995 Final Order required Monroe County to undertake certain c "remedial actions" in order to bring the Plan into compliance with both the Act and the Principles, which are adopted in section 380.0552. 23. Among the remedial actions was the requirement that Monroe County c CD establish a Permit Allocation System ("PAS") for new residential W development. The Administration Commission explained, as follows: The [PAS] shall limit the number of permits issued for new residential development ... provided that 0 the hurricane evacuation clearance time does not exceed 24 hours .... The County shall adjust the allocation based upon environmental and hurricane E evacuation constraints and ... to account for c permits and vested units in ... the Keys. i 24. Monroe County amended its plan in 1996 to implement the PAS and other remedial actions, and adopted a "carrying capacity approach" to CD planning in the ACSC. 25. The amended comprehensive plan was approved by rule of the 0 Administration Commission—Florida Administrative Code Rule 28-20, which also established a comprehensive work program designed to improve the Keys' water quality and protect the habitat of threatened and endangered c species. 26. The rule was subject to another administrative challenge, and the Division issued a final order upholding the rule in 1997. See Abbott u. Admin. Comm'n, Case No. 96-2027RP (Fla. DOAH May 21, 1997). 11 Packet Pg. 3439 Q.3.g The Carrying Capacity Study N 27. The work program adopted by the rule included the requirement to conduct a "carrying capacity analysis" for the Florida Keys. Florida Administrative Code Rule 28-20.100 provided, "The carrying capacity analysis shall be designed to determine the ability of the Florida Keys ecosystem, and the various segments thereof, to withstand impacts of additional land development activities." The rule established that the c analysis should be based on the findings adopted by the Administration Commission on December 12, 1995, "or more recent data that may become available in the course of the study," and upon the benchmarks of, and all c adverse impacts to, the Keys natural land and water systems, in addition to W the impacts of nutrients on marine resources. 28. The study was undertaken beginning in 1996 and was sponsored jointly by DCA and the Army Corps of Engineers ("the Corps") and involved c 38 separate state and federal agencies. The study modeled a series of future development scenarios, as well as redevelopment and restoration scenarios. 0 29. The Final Report9 of the Florida Keys Carrying Capacity Study i ("FKCCS") was issued in September 2002. The major findings include the following: CD • Development suitability in the Florida Keys is extremely restricted, due to the following characteristics: Existing development has displaced nearly 50 percent of all upland c habitats, and remaining uplands are distributed in patches of 10 or fewer acres; almost every native area is potential habitat for one or more endangered species; over 50 percent of all private lands are wetland parcels, and development suitability of remaining lands is low or marginal due to open space requirements, lack of infrastructure, and other factors. 9 The document introduced in evidence is titled"Draft Final Report."According to the testimony of Rebecca Jetton, no other final report was issued by the study sponsors. 12 Packet Pg. 3440 Q.3.g • Future growth is limited in the next 20 years— less than 10 percent growth in the number of dwelling units and population—due to infrastructure limitations. Permitted capacity of c potable water withdrawals was exceeded in 1999 and 2000; improvement of hurricane evacuation clearance times is dependent on structural improvements to U.S. Highway 1, which will increase government costs, nutrient loading, and indirect impacts to wildlife and habitats; and residential capacity is limited to c 6,000 units in order to maintain the state- mandated level of service for roadways. 0 • All six future scenarios would result in disproportionate increase in government W expenditures with respect to increased population, which will require increased taxation on both local residents and tourists. 0 • The existing data "are insufficient to establish quantitative, predictive relationships between land use or development and the marine environment." The study documented human 0 impacts to the marine ecosystem and species. 2I The study underscores the benefits of wastewater treatment, "but other impacts are more related to resource management than to land development." 0 30. The study provides the following four major guidelines for future 0 development in the Florida Keys: 1. Prevent encroachment into native habitat. A wealth of evidence shows that terrestrial habitats and species have been severely affected by development and further impacts would only 2 exacerbate an already untenable condition. 2. Continue and intensify existing programs. Many initiatives to improve environmental conditions and quality of life exist in the Florida Keys. They include land acquisition programs, the wastewater and stormwater master plans, ongoing research 13 Packet Pg. 3441 Q.3.g and management activities in the Florida Keys N National Marine Sanctuary, and restoration efforts throughout the Keys. c 3. If further development is to occur, focus on redevelopment and infill. Opportunities for additional growth with small, potentially acceptable, additional environmental impacts may occur in areas ripe for redevelopment or already disturbed. 4. Increase efforts to manage the resources. Habitat c management efforts in the Keys could increase to effectively preserve and improve the ecological values of remaining terrestrial ecosystems. 31. Rule 28-20.001 required the findings of the FKCCS to be implemented C by "adoption of all necessary [comprehensive plan] amendments to establish a rate of growth and a set of development standards [to] ensure that any and all new development does not exceed the capacity of the county's environment c and marine system to accommodate additional impacts." The study would provide the state and the Keys local governments with an analytical tool to 0 support future comprehensive plan amendments and revisions of land i development regulations. 24-Hour Hurricane Evacuation CD 32. In 2006, following the publication of the FKCCS, the Legislature 0 4- amended section 380.0552 to require the local governments to adopt provisions in their comprehensive plans to "protect the public safety and c welfare in the event of a natural disaster by maintaining a hurricane evacuation clearance time for permanent residents of no more than 24 hours." 0 § 380.0552(4)(e)2., Fla. Stat. (2007). The requirement remains in effect and is enforced by the state through review of local government plan amendments. See § 380.0552(9)(a)2., Fla. Stat. ROGO and BPAS 33. Principle among the Monroe County amendments to implement the E remedial actions ordered by the Administration Commission was the PAS, 14 Packet Pg. 3442 Q.3.g implemented in the County by a Rate of Growth Ordinance ("ROGO"). The N current version of the administrative rule approving the County's comprehensive plan is rule 28-20.140, which also governs and approves ROGO. The rule provides the maximum number of permits for residential development that may be issued annually, with a split between affordable and market rate units. The current cap is 197 units per year, with a minimum of 71 units allocated for affordable housing and a maximum of 126 c market rate units. Any unused affordable housing units "roll over" for affordable housing units the following year. Other unused allocations may be rolled over and used for affordable housing units or "administrative relief."10 c 34. Islamorada and Marathon were not yet incorporated when the W comprehensive plan litigation began and subsequent remedial measures were issued. Since their incorporation, each of the cities has been brought under the umbrella of the ACSC designation. The cities' respective comprehensive plans and land development regulations are subject to the same review and approval authority of the Administration Commission, and are subject to 0 similar work plans to implement the remedial measures required by the i commission. The applicable administrative rules are chapter 28-19 for Islamorada and chapter 28-18 for Marathon. CD 35. Marathon and Islamorada have permit allocation requirements 0 similar to Monroe County, known as the Building Permit Allocation System ("BPAS"). Their respective administrative rules provide the annual maximum c number of permits and the split between affordable and market rate units, as well as the rules governing rollover of unused allocations." 0 to Unused allocations may be provided to applicants who have been denied a permit, despite having met all the requirements of the land development regulations,if they have been in the allocation system for a significant number of years. �. 11 Marathon's annual cap is 30 units and Islamorada's is 28 (22 market rate and 6 affordable housing). 15 Packet Pg. 3443 Q.3.g 36. BPAS is a competitive system. Permit applications are awarded points N based on their alignment with specific development criteria, such as presence or absence of wetlands or protected habitat, and availability of public services. Those applications with the highest points are awarded available permits for the BPAS year. Work Pro,-,ram 37. Each of the municipalities' governing rules includes a work program, c broken down into the following categories: (1) carrying capacity implementation; (2) wastewater implementation; and (3) wastewater project implementation. Marathon's work program includes a fourth category— c stormwater treatment facilities. W 38. The specific activities of each work program differ somewhat. For example, with respect to environmentally-sensitive lands, Islamorada was required to apply for land acquisition funds, while Marathon was required to apply and adopt land development regulations limiting permit allocations in high quality habitats. Monroe County was required to adopt conservation 0 planning mapping into its comprehensive plan. i 39. The wastewater implementation and wastewater project implementation sections of the work programs are of high importance. The CD litigation highlighted the declining water quality of the nearshore 0 environment due to a lack of central sewer facilities. The Keys' wastewater treatment "system" consisted of a hodgepodge of some 23,000 septic tanks, c 2,800 cesspits, and at least 249 small package treatment plants. 40. The work program represents a monumental, long-term, and 0 expensive12 infrastructure project to build a central sewer system in the Keys, followed by a program to require existing developments to connect to 12 In both 2012 and 2016, the Florida Legislature authorized expenditure of Everglades restoration bond funds for Florida Keys wastewater and stormwater management projects; �. and,in 2016, appropriated$5 million in Florida Forever funds for said projects for the 2016/2017 year. More than $13 million was included in the general appropriations act for E said projects in the 2017/2018 year. 16 Packet Pg. 3444 Q.3.g the system, and land development regulations to direct new growth to areas N served by central wastewater treatment facilities. Each local government work program includes specific target dates to obtain funding for, and construction of, each component of the sewer system, as well as specific target dates for initiating and completing connections of existing development to the newly-constructed system. 41. Monroe County's work program also includes directives for funding 0 stormwater improvement projects and deadlines for completing said projects. ACSC Annual Reports 42. The local governments and the Department of Economic Opportunity c CD ("DEO") are required to report to the Administration Commission annually W documenting "the degree to which work program objectives for the work program year[13] have been achieved." 43. Achievement of work program objectives is directly tied to the BPAS c and ROGOif the Administration Commission finds that work program objectives have not been achieved, it can reduce the unit cap for residential 0 development by 20 percent for the following year.14 Additionally, through the i BPAS and ROGO, the local governments are required to direct new growth to areas served by central sewer. Each application for building permit is CD awarded an additional four points15 if the parcel is served by central sewer 0 meeting statewide treatment standards. 44. In the 2017 ACSC annual report, the most recent report for which the c parties requested official recognition, Islamorada reported it had connected 85 percent of potential customers (with another five percent in the 0 13 The work program year runs from July of one year to June of the following year. e( 14 The Islamorada rule does not contain this provision; however,it does provide that, if the Administration Commission determines progress has been made for the work program year, then the Commission"shall restore the unit cap" of 28 allocations for the following year. It is �. unclear whether Islamorada was already under penalty when the new rule was adopted or whether this is an oversight in the rule. E 15 In Islamorada, the award is two additional points. 17 Packet Pg. 3445 Q.3.g application process), Marathon had connected 97 percent, and Monroe N County had an overall connection rate of 86 percent (with higher percentages for specific individual treatment facilities). City of Key West 45. Key West challenged its inclusion in the original ACSC designation, and, in 1984, was designated as a separate area of critical state concern ("the Key West ACSC"), effectuated by the adoption of Florida Administrative Code c Chapter 28-36. 2 46. The Key West ACSC is subject to the same land planning and development regulation oversight as the Florida Keys ACSC, and the Key c CD CD West comprehensive plan and land development regulations are approved by C the state through Florida Administrative Code Chapters 28-37 and 9B-30. 47. Key West is subject to separate principles for guiding development than the Florida Keys ACSC, which are found in rule 28-36.003. Key West is served by central sewer and does not have work program tasks. Hurricane Evacuation Clearance Time 0 48. The work program requires the local governments within the Florida i Keys ACSC to enter into a Memorandum of Understanding ("MOU") with the DEO, the Division of Emergency Management, and each of the other Keys CD local governments, to stipulate to the input variables and assumptions for 0 4- utilizing the Florida Keys Hurricane Model, or other models acceptable to DEO, to accurately depict hurricane evacuation clearance times for the c population in the Keys. The work program required, by July 1, 2012, the local governments to run the model with the agreed upon variables from the MOU 0 "to complete an analysis of the maximum build-out capacity for the ACSC, consistent with the requirement to maintain a 24-hour evacuation clearance time and the [FKCCS] constraints." 49. DEO appointed a Hurricane Evacuation Clearance Time Work Group (the "Work Group") including members of each of the six local governments E and representatives from the tourism industry, chambers of commerce, and 18 Packet Pg. 3446 Q.3.g community organizations, as well as from state and federal agencies. The N Work Group held a series of public workshops to consider hurricane model inputs—census data, behavioral studies, hurricane forecasting, military evacuation procedures, traffic flow rates, and number and location of vacant platted lots. 50. The Work Group selected the Division of Emergency Management's Transportation Interface for Modeling Evacuations ("TIME") as the model to c accurately depict evacuation clearance times for the population of the Keys ACSC and the Key West ACSC ("the Florida Keys ACSCs"). The Work Group agreed on 10 modeling assumptions, including the number of tourist units, c and of those, the number occupied; the number of mobile home units and W evacuation participation rates; and the number of site-built units, the occupancy rate, and participation rate of residents in those units, among other important variables. The inputs and assumptions were tested by c modeling over 100 evacuation scenarios. 51. The Work Group presented its findings on June 8, 2012, and selected 0 evacuation scenario M5, which provided for continuation of then-existing i annual building permit allocations that were adopted by rule or comprehensive plan amendment (with the exception of Key Colony Beach and CD Key West). Scenario M5 produced an evacuation clearance time of 24 hours 0 with a future allocation of 3,550 new residential building permits. 52. Notably, scenario M5 assumed that military, mobile home residents, c and tourists would evacuate during Phase I of what DEO described as a two- phase evacuation plan. Further, M5 assumed that 15 percent of existing 0 mobile homes would convert to site-built homes. 53. In the two-phase evacuation plan, tourists are ordered to evacuate 48 hours in advance of predicted tropical storm force winds, and residents of mobile homes are ordered to evacuate 36 hours in advance. The model predicted an evacuation clearance time of 16 hours and 30 minutes for E 19 Packet Pg. 3447 Q.3.g Phase I using tourist occupancy rates for July, and 17 hours and 30 minutes N using tourist occupancy rates for the Labor Day weekend. 54. Under Scenario M5, residents of site-built units are ordered to evacuate 30 hours in advance, giving those residents six hours of lead time to secure property and make other preparations. Under scenario M5, all site- built residences were evacuated within 24 hours of predicted tropical storm force winds, including an additional 3,550 units. As such, the work group 0 determined 3,550 units to be the maximum buildout of the Keys through 2023 to maintain the 24-hour hurricane evacuation mandate in section 380.0552. CD 55. The Work Program directed DEO to "apply the derived clearance time W to assess and determine the remaining allocations for the [ACSC]" and recommend revisions to the allocation rates and distribution of allocations to the six local governments, as well as any recommended changes to the local c government comprehensive plans. DEO completed that task, and determined that a maximum of 3,550 additional units could be distributed over the next 0 ten years, beginning in July 2013. i 56. On November 5, 2012, Monroe County, Marathon, Islamorada, Key Colony Beach, Key West, the City of Layton, the Division of Emergency CD Management, and DEO, entered into an MOU agreeing on the use of the 0 TIME model, as well as the data, input variables, and assumptions to be utilized in model runs. The following "whereas" clause succinctly provides the c results of the M5 scenario: WHEREAS, from among the scenarios provided by DEO at the June 8, 2012, Work Group meeting, Scenario M5 included the 2010 Census site-built 2 units (43,760 units); the maximum number of residential building permits for new construction for all Local Governments per year for 10 years (annually, County 197, Marathon 30, Islamorada 28, Key West 90, Key Colony Beach 6, and Layton 3); 1,248 mobile home units projected to convert to site-built units; the exclusion of 870 dwelling units 20 Packet Pg. 3448 Q.3.g on the Naval Air Station; as well as two (2) N functional evacuation lanes from MM 108-126. Further the work group recommended Scenario M5 with the provision that the City of Key West would c transfer annually (by July 13th) any remaining or unused (90 allocations) allocations to the other Local Governments based upon the Local Governments' ratio of vacant land. 57. Technical corrections made after the June 8, 2012 meeting, the census- based number of site-built units was revised to 43,718 and the Key West c allocation was revised to 91. 0 58. The MOU also memorializes the following staged evacuation procedure: W • Approximately 48 hours in advance of tropical storm winds, mandatory evacuation of non-residents, visitors, RVs, travel trailers, live-aboard 0 vessels (transient and non-transient), and military personnel. • Approximately 36 hours in advance, mandatory evacuation of mobile- home residents, special needs residents, and hospital and nursing c U home patients. 2i • Approximately 30 hours in advance, mandatory phased evacuation of permanent residents by evacuation zone.[16] CD 59. The phased evacuation procedure is also adopted in each of the local government comprehensive plans, except Key West, which adopted the 0 procedure by resolution. Affordable Housing 60. The need for additional affordable housing in the Keys is well c documented, and the parties stipulated, generally, to the need. 16 There are five hurricane evacuation zones in the Keys designated by mile marker numbers along US 1. 21 Packet Pg. 3449 Q.3.g 61. Numerous factors contribute to the need for affordable housing, N including, but not limited to, the high cost of living, higher construction costs, the high cost of land, as well as the limited supply and high demand for real c estate and housing throughout the Florida Keys. The need for affordable housing was exacerbated by Hurricane Irma, which made landfall in the Florida Keys in September of 2017 and destroyed approximately 400 mobile homes, "permanent RV's," and ground-level single-family homes that served c as affordable housing, many for members of the Keys workforce. 62. Most of the site-built homes destroyed were not built to current building code standards, but were "grandfathered" from code compliance. c CD Those structures must be rebuilt to code, which will likely take them out of W financial reach of members of the Keys workforce. 63. Provision of affordable housing is an important aspect of the regulatory framework for planning in the Keys. 64. The litigation over the Monroe County comprehensive plan highlighted a deficit of affordable housing in the Keys. Among the Principles 0 is the requirement to "[make] available adequate affordable housing for all i sectors of the population" of the Keys. § 380.0552(7)(1), Fla. Stat. When designating the ACSC, the Legislature expressed the intent to "[p]rovide CD affordable housing in close proximity to places of employment" in the Keys. 0 § 380.0552(2)(d), Fla. Stat. The Keys Workforce Housing Initiative c 65. Shortly after Hurricane Irma, Marathon began discussions with DEO about the possibility of obtaining additional building permit allocations for 0 workforce-affordable housing. 66. In November 2017, Marathon passed Resolution 2017-99 requesting the allocation of 300 affordable housing allocations from DEO with approval of the Administration Commission. 67. DEO determined there were not enough building permits available E under the current regulatory structure to address the need for affordable 22 Packet Pg. 3450 Q.3.g housing in the Florida Keys. As a result, DEO developed the Keys Workforce N Affordable Housing Initiative (the "Housing Initiative") to allow up to 1,300 new building permit allocations for workforce housing throughout the Florida Keys, with an initial allocation not to exceed 300 per local government. 68. Under the Housing Initiative, the additional units are to be deed- restricted for workforce affordable housing and required to evacuate in c Phase I, along with tourists, visitors, mobile home residents, and military personnel. 69. The Administration Commission approved the Housing Initiative at c the June 13, 2018 meeting. In support of the Housing Initiative, DEO staff W made a presentation asserting that the Phase I evacuation (under the existing staged evacuation plan) can be accomplished in 17.5 hours, leaving additional capacity of 6.5 hours in Phase I. DEO concluded that the Housing Initiative "will not interfere with the 24-hour evacuation model and satisfies the statutory mandate to provide affordable housing." 0 70. Following approval by the Administration Commission, DEO worked i with Marathon and other local governments to amend their comprehensive plans to implement the Housing Initiative. CD The Plan Amendments 0 71. The Marathon Plan Amendment creates a new Future Land Use ("FLU") goal stating the intent to participate in the Housing Initiative c approved by the Administration Commission. It further creates a new FLU Objective establishing a "new limited category" of building permit allocations 0 known as "Affordable — Early Evacuation Pool" providing 300 workforce affordable building permit allocations in addition to the allocations identified in chapter 28-18. The Marathon Plan Amendment creates five new FLU policies. The first allows for distribution of the allocations "at any time" provided applicable Marathon public notice and hearing procedures are E 23 Packet Pg. 3451 Q.3.g followed and the distribution is based on the BPAS ranking procedures in N effect. 72. The second policy provides the following "Specific Standards and Requirements for Workforce Affordable Housing": Affordable-Early Evacuation residential units under this program shall: a. be multifamily structures; 0 b. be rental units; 2 0 4- c. require, at a minimum, adherence to the latest edition of the Florida Building Code[]; d. not be placed in the V-Zone or within the Coastal Barrier Resource Systems; e. require on-site property management; E f. comply with applicable habitat and other locational criteria and densities for multifamily E affordable housing units; c g. shall not be placed in any habitat defined as 0' mangroves, saltmarsh & buttonwood, hardwood hammock, or fresh water wetlands (disturbed CD categories excepted); 0 h. incorporate sustainable and resilient design principles into the overall site design; i. ensure accessibility to employment centers and amenities; and E 0 j. require deed-restrictions ensuring: (i) the property remains workforce-affordable housing in perpetuity; (ii) tenants evacuate during the period in which transient units are required to evacuate; E 24 Packet Pg. 3452 Q.3.g (ill) rental agreements contain a separate N disclosure requiring renters to acknowledge that failure to adhere to the evacuation requirement could result in severe penalties, including eviction to the resident; and (iv) on-site property managers are formally trained in evacuation procedures. 73. The third policy exempts from the early evacuation requirement all c first responders, correctional officers, health care professionals, or other first- response workers required to remain during an emergency. 74. The fourth policy requires the workforce-affordable developments to c CD comply with federal accessibility standards. W 75. The last policy requires Marathon to provide DEO with an annual report on the implementation of the Housing Initiative, including documenting the number of workforce-affordable housing units built, occupancy rates, and compliance with the early evacuation requirement. The report is to be included in the DEO annual work program report to the 0 Administration Commission. i 76. Islamorada's plan amendment provides 300 workforce-affordable building permit allocations in addition to the allocations identified in CD chapter 28-19. In all other respects the amendment is identical to the 0 Marathon Plan Amendment. 77. The Key West Plan Amendment approves the receipt of 300 workforce- c affordable building permit allocations "as well as any additional allocations which may be authorized by the Florida Administration Commission or 0 transferred to Key West that are not accepted by other Florida Keys municipalities or Monroe County." Rather than authorizing distribution of the allocation "at any time," Key West authorizes distribution "on a first- come first-served basis and at any time" following public notice and hearing procedures. Allocation of the Key West permits is not required to follow BPAS E ranking unless the number of applications received exceeds the authorized 25 Packet Pg. 3453 Q.3.g allocation. There are also two minor differences in the "Standards and N Requirement for Workforce-Affordable Housing" in the Key West Plan Amendment: it does not contain the paragraph prohibiting placement of units in buttonwood and hardwood hammock; and it does not require that property managers be trained in evacuation procedures. Otherwise, the Key West Plan Amendment is virtually identical to that adopted by Marathon and Islamorada. c Petitioners' Challen,es 78. Petitioners challenge the Plan Amendments, generally, as inconsistent with the FKCCS and the carrying capacity approach to planning in the Keys. c CD The two main contentions are hurricane evacuation and environmental W concerns. Hurricane Evacuation 79. Petitioners posit that the Plan Amendments violate the Principles and c the MOU17, and render the local government comprehensive plans internally inconsistent, by exceeding the requirement to evacuate the Keys permanent 0 population in no more than 24 hours. Petitioners also argue the plan i amendments are not supported by adequate data, and a professionally- acceptable analysis thereof, on hurricane evacuation clearance times. CD 80. At first blush, Petitioners' argument has merit: the Plan Amendments 0 allow up to 1,300 units to be built in the Keys beyond the previously- established maximum buildout of 3,550 units through the year 2023. That c buildout number was derived directly from the Work Group after agreement on all assumptions and inputs for, and multiple runs of, the agreed-upon 0 TIME model, and identification of the M5 scenario as the best model for evacuation of permanent population within 24 hours. 17 As explained in the Conclusions of Law, Petitioners' contention that the Plan Amendments are inconsistent with the MOU is rejected. Inconsistency with the MOU is not a statutory E compliance issue. 26 Packet Pg. 3454 Q.3.g 81. It is undisputed that the new residential units to be allocated under N the Housing Initiative will house permanent residents. That fact alone is not in direct conflict with the 24-hour evacuation requirement because, as implemented, the evacuation plan requires some permanent residents— residents of mobile homes, "permanent RVs," live-aboard vessels, and military personnel—to evacuate in advance of the start of the 24-hour clock. That requirement is incorporated into the local government comprehensive c plans which have previously been found to be "in compliance"—meaning both internally consistent and consistent with the Principles. 82. Petitioners introduced the testimony of Richard Ogburn, a planning c expert who has extensive experience with hurricane evacuation modeling in W South Florida, including the Keys. Mr. Ogburn was directly involved in the Work Group hurricane evacuation modeling that culminated in the 2012 report and adoption of the MOUs. As Mr. Ogburn explained, Monroe County c was the first local government in the state to update its hurricane evacuation modeling based on the 2010 census data. It was to be a pilot for updating the 0 statewide regional evacuation plan utilizing the new census data. i 83. Specifically, Mr. Ogburn, who was at the time employed by the South Florida Regional Planning Council, extracted demographic data from the CD 2010 census and created the demographic data base for use with the TIME 0 model. Mr. Ogburn subsequently completed "validation runs" of the TIME model results generated by DEO staff during the Work Group process.18 84. In 2013, while Mr. Ogburn was working on the update to the statewide regional evacuation model, Mr. Ogburn discovered some blank cells within 0 the census block group data sets in the original spreadsheet he had created for DEO. The missing information was the number of vehicles identified within those specific census block groups. With respect to Monroe County, eight of the 76 block groups were missing vehicle data. is The validation process involved input of the data parameters into the model and repeating the same model run scenarios to ensure that the results from the initial runs were replicated. 27 Packet Pg. 3455 Q.3.g 85. Mr. Ogburn found an alternative data source from which to derive the N number of vehicles in the associated census block groups and reran the model for purposes of updating the statewide regional model. In 2014, Mr. Ogburn reported the census data errors to DEO, which requested he rerun scenario M5 after including the missing vehicles. The result was an increase of two- and-a-half hours for evacuation of Phase IIa total clearance time of 26.5 hours. 0 86. Mr. Ogburn testified that, based on the best-available data on hurricane evacuation clearance times, the evacuation of site-built dwellings in the Keys already exceeds the 24-hour evacuation standard mandate by c CD CD statute (and incorporated into Respondents' comprehensive plans). In his C opinion, adding units authorized by the Housing Initiative would further exacerbate the problem. 87. Petitioners introduced other evidence aimed at tearing down the conclusion of the Work Group that the Keys could be safely evacuated in under 24 hours, based on the 2012 TIME model runs. For example, 0 Mr. Ogburn questioned the vacancy rates utilized by the Work Group, which i he described as "most likely" too high. Mr. Ogburn cast doubt on the 100% participation rate assumption, and the assumed 12-hour response CD curve, which he testified was unrealistic given that people will not leave at 0 the same rate if the evacuation is ordered at midnight as they would if the order was given at 7:00 a.m. Petitioners likewise introduced evidence casting c doubt on the ability of meteorologists to predict storms with accuracy 48 hours in advance of landfall. 0 88. The Keys local government comprehensive plans, as adopted with use of the TIME model, and all underlying assumptions and inputs, have previously been determined to be "in compliance." The question of whether Uj those assumptions and model inputs are supported by data and analysis is 28 Packet Pg. 3456 Q.3.g not properly before the undersigned in this proceeding. The evidence was, for N the most part, irrelevant.19 89. The Housing Initiative is grounded on the availability of evacuation time in Phase I of the agreed evacuation procedure, which is adopted in each of the local government comprehensive plans. Mr. Ogburn agreed on cross- examination, that the TIME model was run separately for Phase I and Phase II, that the results from Phase I were not taken into consideration in c the data for Phase II, and that if the units are presumed to evacuate in Phase I, it would have no effect on the analysis for Phase II. 90. Notably, when Mr. Ogburn was asked directly whether the additional c CD 1,300 units added to permanent population would cause the Keys evacuation W time to exceed 24 hours, Mr. Ogburn testified: If the evacuation takes place ahead of time, it's a different question and I don't have a clear answer 0 for that because I have not had the opportunity to run the model to determine whether or not that would cause the clearance times in the original E phase to increase significantly.[201 0 91. The 2012 run of the TIME model demonstrated a clearance time in Phase I of 16 hours and 30 minutes, or 17 hours and 30 minutes, depending CD on the transient occupancy rate utilized. 92. Respondents introduced the testimony of Joaquin Vargas, a traffic engineering consultant who was accepted as an expert in transportation planning, including roadway capacity issues related to hurricane evacuation. Mr. Vargas participated in hurricane evacuation modeling in the Keys in the E 1990s to determine potential roadway improvements that could reduce Keys evacuation clearance time. Mr. Vargas was the principal author of the "Miller Model," which was utilized in these studies. 19 Moreover, the evidence served to undercut Petitioners' argument that the best available data and analysis supports the 24-hour evacuation clearance time cap. E 20 T2:79;1-6. 29 Packet Pg. 3457 Q.3.g 93. Mr. Vargas' modeling was not based on a two-phased evacuation. N Instead, the Miller Model assumed evacuation of all permanent population simultaneously in order to identify where roadway improvements would c reduce the evacuation clearance time. 94. Mr. Vargas introduced the results of a model run of simultaneous evacuation of the Keys without units authorized under the Housing Initiative, and a second adding 300 units each for Marathon, Islamorada, and c Key West. The model run without the 900 combined units yielded an evacuation clearance time of 21 hours and 34 minutes. With the additional 900 units, the model yielded a clearance time of 21 hours and 42 minutes. c CD 95. This evidence had little relevance because the models are not W comparable, and because Mr. Vargas utilized inputs and assumptions that differed greatly from the TIME model runs underlying the carrying capacity analysis utilized by the Work Group. The Miller Model assumes the evacuation of all permanent residents (including mobile home residents) simultaneously, so it is useless as a comparator to the Phase II run of the 0 TIME model. Additionally, Mr. Vargas utilized 2000 census data, rather than i the more recent 2010 data, which Mr. Vargas admitted "w[ould] provide more accurate information," and included inaccurate data, such as non-existent CD lane segments which inflated capacity on some roadway segments. While 0 Mr. Vargas expressed the opinion that the Miller Model is superior because it was designed expressly for the Keys, the fact remains that the existing "in c compliance" comprehensive plans are based on use of the TIME model to determine maximum buildout in the Keys. 0 96. Mr. Ogburn completed a run of the TIME model in 2014 which included the previously-missing vehicles from the census block groups in Phase I. That rerun produced a clearance time of 19 hours. The best available data and analysis (the 2014 rerun) supports a finding that the clearance time for Phase I, without the additional units from the Housing Initiative, is E 19 hours. Thus, the evidence does not support a finding that the evacuation of 30 Packet Pg. 3458 Q.3.g Phase I with the additional 1,300 units cannot be completed within the first N 24 hours of a 48-hour evacuation scenario. 97. The preponderance of the evidence does not support a finding that the inclusion of the 1,300 units in Phase I will violate the requirement to evacuate Keys permanent residents in 24 hours or less. 98. On the theory that the addition of up to 1,300 residential units in the Keys will cause the hurricane evacuation clearance time to exceed 24 hours, c Petitioners alleged the Plan Amendments are inconsistent with the following provisions of Respondents' comprehensive plans: 0 Marathon: CD • FLU Objective 1-2.1, which requires Marathon to "ensure the W availability of adequate public facilities and services[.]" • FLU Objective 1-2.2, requiring Marathon to "meet the required 24- 0 hour hurricane evacuation time or other applicable state standard for hurricane evacuation." E 0 U • FLU Objective 1-3.5, requiring Marathon to "manage the rate of new 2I development to ... support safe and timely evacuation prior to a hurricane." CD 0 • Conservation and Coastal Element Policy 4-1.21.2, requiring Marathon to coordinate with Monroe County in updating policy formulations regarding land use and emergency preparedness and to plan for future land use densities that will not adversely impact the efficiency of 0 hurricane evacuations or increase evacuation times. • Intergovernmental Coordination Element ("ICE") Objective 5-1.1, requiring Marathon to maintain coordination mechanisms with the comprehensive plans of Monroe County and adjacent municipalities. 31 Packet Pg. 3459 Q.3.g • ICE Policy 5-1.1.2, requiring Marathon to coordinate with adjacent jurisdictions "for the development of joint strategies to address development, zoning, and land-use decisions that transcend c jurisdictional boundaries." • ICE Policy 5-1.1.10, requiring Marathon to establish a program to provide and review proposed plan amendments of adjacent local governments to ensure consistency. c 2 0 • Policy 5-1.2.10), requiring Marathon to enter into interlocal 0 agreements or develop joint resolutions in areas of mutual concern CD including the coordination of hurricane evacuation plans. W Islamorada: • FLU Goal 1-1, which provides that the comprehensive plan shall 0 "[e]ncourage0 sustainability by limiting growth in order to establish and maintain acceptable levels of service for hurricane evacuation[.]" 0 • Transportation Element ("TE") Policy 2-1.2.8, which requires i Islamorada to "address long-term strategies to reduce clearance time and coordinate permit allocations" by implementing specifically-listed CD programs with FDOT FDCA and other local governments in the Keys. 0 • TE Policy 2-1.2.9, which provides for the staged/phased evacuation procedure to maintain a 24-hour hurricane evacuation clearance time. • TE Policy 2-1.2.10, which requires Islamorada to "support state 0 U funding for the update of the hurricane evacuation model that 2 considers the impact of Miami-Dade County on evacuees[.]" • TE Policy 2-1.6.3, by which Islamorada "adopts 24 hours as the maximum allowable hurricane evacuation clearance time standard," and provides that "[t]he Village shall reduce and maintain hurricane 32 Packet Pg. 3460 Q.3.g evacuation clearance time at or below 24 hours by ... limiting the N annual allocation of permits ... as determined by interlocal agreement with the affected local governments in the Keys and the [DEO]." • Coastal Management Element ("CME") Objective 5-1.9, requiring a Islamorada to "avoid population concentrations in the coastal high hazard area. 0 • CME Policy 5-1.10.2, requiring Islamorada to "coordinate with Monroe 0 County in emergency preparedness." 0 • CME Objective 5-1.15, requiring Islamorada to "ensure W intergovernmental coordination within the coastal area." • ICE Objective 8-1.1, requiring Islamorada to "ensure c intergovernmental coordination." • ICE Policy 8-1.2.1, titled "Coordinate Development and Growth 0 U Management Issues." 2 i • ICE Policy 8-1.2.8, titled "Implement Intergovernmental CD Coordination." 0 Key West: • FLU Objective 1-1.16, requiring Key West to "regulate the rate of population growth commensurate with planned increases in evacuation capacity in order to maintain and improve hurricane evacuation clearance times[,]" and "in concert with Monroe County, its municipalities, and the State of Florida, [Key West] shall manage the rate of growth in order to maintain an evacuation clearance time of 24 hours for permanent residents." 33 Packet Pg. 3461 Q.3.g • CME Goal 5-1, "Protect human life and limit public expenditures in N areas subject to destruction by natural disasters[.]" c • CME Objective 5-1.6, requiring Key West to "coordinate with the State, the South Florida Regional Planning Council, [Monroe] County, and other local governments in order to regulate population growth and stage evacuations in a manner that maintains hurricane evacuation clearance times in accordance with the executed [MOU][.]" c 2 0 • ICE Policy 8-1.1.3, which reads, in pertinent part, as follows: 0 Considering the growth and development W limitations in Monroe County as a whole resulting from hurricane evacuation requirements ... and considering the impact that growth and development in the City of Key West will have on c the rest of Monroe County, [Key West] shall coordinate with Monroe County and the Cities ... regarding the allocation of additional development. i The City shall pursue resolution of development and growth management issues with impacts transcending the [Key West's] political jurisdiction. Issues of regional and state significance shall be coordinated with the [SFRPC], the [SFWMD], and/or State agencies having jurisdictional authority. Issues to be pursued include but are not limited to the following: [Key West] shall implement the hurricane and transportation conclusions and policies relative to residential c units' allocation which are adopted by Monroe County and all municipalities as described in the [MOU] dated July 14, 2012. 99. Petitioners did not prove that the Marathon Plan Amendment is internally inconsistent with Objectives 1-2.1, 1-2.2, 1-3.5, and 5-1.1; and Policies 4-1.21.2, 5-1.1.(2), 5-1.1.10, and 5-1.2.1.* 34 Packet Pg. 3462 Q.3.g 100. Petitioners did not prove the Islamorada Plan Amendment is N inconsistent with Islamorada Comprehensive Plan Goal 1-1; Policies 2-1.2.8, 2-1.2.9, 2-1.2.10, and 2-1.6.3; Objective 5-1.9 and Policy 5-1.10.2; Objective 5- c 1.15; and Objective 8-1.1 and Policies 8-1.2.1 and 8-1.2.8. 101. Petitioners did not prove the Key West Plan Amendment is internally inconsistent with Key West Comprehensive Plan Objectives 1-1.16, 5-1.6, Goal 5-1, and Policy 8-1.1.3. 0 102. Based on the foregoing Findings of Fact, Petitioners did not prove that the Marathon and Islamorada Plan Amendments are inconsistent with section 380.0552(9)(a)2., which requires the local governments in the ACSC c CD to adopt goals, objectives, and policies to "maintain a hurricane evacuation W clearance time for permanent residents of no more than 24 hours." Environmental Concerns 103. Petitioners next contend the Plan Amendments are not supported by c data and analysis demonstrating that the environmental carrying capacity of the Keys can support development of an additional 1,300 residential units. 0 Petitioners' concerns fall into two categories which were the focus of the i FKCCS: nearshore water quality and ecological impacts. Nearshore Water Quality of the Florida Keys 104. Petitioners claim that the nearshore water quality of the Keys was 0 determined over 25 years ago to have exceeded its capacity to assimilate additional nutrients, that it remains nutrient-impaired today, and that the c additional development authorized under the Plan Amendments will further increase nutrient pollution from additional wastewater and stormwater 0 associated with development. 105. In 1990, Congress created the Florida Keys National Marine Sanctuary ("FKNMS"), and required development of a Water Quality Protection Program ("WQPP"), establishing comprehensive, long-term monitoring of water quality in the FKNMS.Under the Water Quality 35 Packet Pg. 3463 Q.3.g Monitoring Project ("WQMP"), water quality has been monitored quarterly at N approximately 150 sampling stations since 1995. 106. In 1997, the Governor and Cabinet approved the FKNMS c Management Plan for implementation in state waters, and required annual reports from the FKNMS. 107. The 2011 FKNMS annual report stated that, "in general, water quality is good Sanctuary-wide but documentation of elevated nitrate in the c inshore waters of the Keys has been evident since" sampling began in 1995. The report notes, "Observance of this type ... implies an inshore source which is diluted by low nutrient ocean waters," and that "[a]nalysis of monitoring c data from 1995 through 2008 indicates a statistically significant W improvement in some parameters, such as dissolved inorganic nitrogen ..." The report concludes that "this trend will be watched closely in the future, particularly with regard to any potential effect attributable to ... water treatment infrastructure improvements." The report further cited "[e]xcessive nutrients from inadequately treated wastewater" as the "primary contributor 0 to water quality degradation in near shore waters." i 108. In 2008, the Environmental Protection Agency ("EPA") developed Strategic Targets for the WQMP, setting limits for DIN (dissolved inorganic CD CD nitrogen) at < 0.010 parts per million ("ppm"), and TP (total phosphorous) at 0 < 0.0077 ppm, among other nutrients, which are considered the values "essential to promote coral growth and overall health." Future sampling was c compared to the "baseline" from the 1995-2005 timeframe (e.g., the baseline for DIN was 76.3 percent—the average percentage the samples complied with 0 the target of< 0.010 ppm). In 2011, FKNMS added 10 sampling stations, located within 500 meters of the shore in the Keys, referred to in the reports as the SHORE stations. 109. In 2015, FKNMS reported that an average of all stations (excluding SHORE stations) met or exceeded the target value for DIN in 2008 through E 2011, but fell short of the target in 2012 through 2015. The stations reported 36 Packet Pg. 3464 Q.3.g meeting or exceeding the target for TP in 2011 through 2015, while falling N short in 2008 and 2010. The 2017 annual report showed the stations meeting or exceeding the DIN target in 2017, but not 2016; and meeting or exceeding the TP target in both 2016 and 2017. The 2017 study reported that "the FKNMS exhibited very good water quality with median concentrations of TP at .0058, well below the target of.008. In 2018, FKNMS reported the stations meeting or exceeding the target for both nutrients. Again, in 2018, FKNMS 0 reported "very good water quality with median concentrations of TP at .0051, lower than the 2017 level, and again well below the EPA target. 110. In summary, the reports demonstrate the stations fell below the c CD target for TP in 2008 and 2010, but met or exceeded the target every year W since 2010. The samples fell below the target for DIN in 2012 through 2016, but met or exceeded the target value in subsequent years. 111. Petitioners emphasize that the EPA's Strategic Targets for nutrients in the FKNMS are not consistently being met. But the reports do show a trend of improvement, at least with respect to DIN and TP. 0 112. The 2014 report documented elevated nutrient concentrations of DIN i and TP in waters close to shore along the Keys, attributable to "human impact." CD 113. The 2015, 2017, and 2018 reports exclude the data from the SHORE 0 stations for purposes of demonstrating compliance with target values because they "introduce a bias to the dataset which results in a reporting c problem[.]"21 114. The 2017 report does include an analysis of the geographic 0 differences between testing stations. The report indicates a significant difference between the median levels of nutrients sampled in SHORE stations when compared with the "alongshore," "channel," and "reef' stations. LU 21 Petitioners sought to introduce raw sample data from SHORE stations and an analysis of said data by Kathleen McKee. That evidence was admitted as hearsay only, and was not corroborated by any non-hearsay evidence. 37 Packet Pg. 3465 Q.3.g However, the median levels of many of the nutrients are still at or below the N EPA targets, even measured at SHORE stations. For example, the median level of TP, which the report recognizes as one of the most important e determinants of local ecosystem health, at the SHORE stations was just below .007, compared to the EPA target of.008. 115. More importantly, Petitioners focus on the SHORE station data was inconsistent with their challenge that the nearshore water quality remains 0 impaired. Petitioners' planning expert, Ms. Jetton, defined nearshore as approximately 12,000 meters from shore, not merely within 500 meters of shore. The 2017 report breaks out the "alongshore" stations as well as the e CD SHORE stations. That data shows the median value of TP at the alongshore W stations is approximately .0055, well below the target of .008. Notably, 75 percent of the alongshore stations sampled TP below the target .008. With respect to DIN, the median of alongshore station samples is below the target e of.01; and 75 percent fall below .015. 116. In 2018, FKNMS reported a trend of increased DO (dissolved oxygen) 0 in both surface and bottom waters throughout the Keys, and declining i turbidity in the surface waters, for the 24-year period from 1995 through 2018. Increased DO is beneficial for animal life. Declining turbidity means CD the water is becoming clearer. The 2014 report showed no significant trends 0 in TP, but the 2018 report noted small, but significant, declining trends in TP values in most surface waters.22 e 117. In 1995, the EPA and the Department of Environmental Protection ("DEP") listed the Keys waters as "impaired," pursuant to the Clean Water 0 Act.23 DEP is required to establish Total Maximum Daily Loads ("TMDLs") for impaired water bodies, which define the maximum pollutant loading that can be discharged to those water bodies while still achieving water quality 22 The 2018 report does not contain the same detailed comparison of SHORE station samples with the other stations, as did the 2017 report. U 23 33 U.S.C. § 1251 et seq. 38 Packet Pg. 3466 Q.3.g targets. An alternative mechanism, a Reasonable Assurance Document N ("RAD") can be developed in lieu of TMDLs when, as in the Keys, local management activities are planned to achieve water quality targets. 118. The Florida Keys RADs ("FKRADs") were developed in 2008, and each of the affected local governments became a signatory to a Stakeholder's Agreement to implement the FKRADs. The FKRADs established two sets of nutrient targets: (1) an insignificant increase in concentration above natural c background within the HALO zone, which is 500 meters of shore, not including canals; and (2) the average of values measured at the nearshore (500 meters to 12,100 meters from the shoreline). The FKRADs identify c CD 23 impaired estuarine water body identifications ("WBIDs"). The WBIDs are W Class III water bodies, defined by the Clean Water Act as "used for recreation, propagation, and maintenance of a healthy, well-balanced population of fish and wildlife." The FKRAD identifies specific restoration projects to be completed by 2020 to improve each WBID, designates the government stakeholder responsible for each project, and sets water quality 0 targets to be achieved by each project. i 119. The FKRAD focuses on TN (total nitrogen) and TP, and establishes different water quality target values than the FKNMS. For the HALO Zone CD the target is an "as insignificant increase above natural background for each 0 nutrient." "Insignificant" is defined as less than ten micrograms per liter (<10 µg/1) of TN, and < 2µg/l for TP. c 120. Petitioner's planning expert, Ms. Jetton, testified that the 2018 Update to the FKRAD "tells me that the surface water still isn't able to 0 assimilate all the nutrients that are going into it because ... we're not meeting the strategic targets[.]" Ms. Jetton concluded, based on the 2018 Update to the FKRAD, that "there should be no more development added to [the Keys] until the [WBIDs] can consistently meet their strategic targets." She further testified that the RAD documents identify the Keys' waters as E not meeting the DEP necessary levels of nutrients for healthy waters and 39 Packet Pg. 3467 Q.3.g that the RADs reflect "current water quality as it's been affected by the N wastewater facilities that have been upgraded in the Keys to date." 121. That testimony is unreliable. The purpose of the 2018 Update is plainly set forth in the document itself. to document actions taken by stakeholders since 2011 and to address the DO impairment identified by DEP is some water segments; to include a revised approach to monitoring and reporting results; and to identify a schedule to meet water quality targets 0 and restoration goals. 122. The 2018 Update to the FKRAD contains neither data on samples of TN and TP in the HALO zone waters, nor any analysis of whether the c CD target—insignificant increases above natural background—has been W achieved. The 2018 Update provides that "water quality data will be compared to the FKRAD water quality targets ... to evaluate achievement of targets," and that "[m]onitoring for success will include, among other data sets, "decrease in nearshore nutrient concentrations in comparison to water quality targets and OFW background concentrations." 0 Injection Wells and Nearshore Water Quality i 123. Absent concrete evidence to support Petitioners' claim that the nearshore waters have not recovered from their 1995 impaired designation CD such that they can assimilate pollutants from additional development, 0 Petitioners argue that the existing "improved" wastewater and stormwater treatment infrastructure in the Keys does not adequately protect marine and c coastal resources of the Keys, and that the addition of new development will exacerbate the problem. Specifically, Petitioners posit that shallow 0 wastewater injection wells degrade nearshore water quality. 124. Marathon injects treated wastewater effluent into shallow injection wells, which are drilled to a depth of at least 90 feet and cased to a minimum depth of 60 feet. 125. Marathon's five injection wells are permitted to, and currently E operate at, a permitted capacity of.200 million gallons per day ("MGD"), 40 Packet Pg. 3468 Q.3.g .400 MGD, .200 MGD, .500 MGD, and .450 MGD, respectively. Marathon's N injection wells are designed and permitted to exceed full build out. 126. Key West injects its treated wastewater effluent into deep injection wells, which are 3,000 feet deep and are cased to a minimum depth of 2,000 feet.24 127. Key West's injection wells are permitted at a capacity of 10 MGD, and Key West currently uses approximately 50 percent or less of the total c permitted capacity for its injection wells. 128. Islamorada does not have its own municipal wastewater effluent injection wells or wastewater treatment plant. Islamorada's wastewater is c CD transmitted to the Key Largo Regional Wastewater Treatment Facility ("Key W Largo Wastewater Treatment Facility "),y ), which treats and injects effluent into a deep injection well that is cased to a minimum depth of 2,000 feet. 129. The Key Largo Wastewater Treatment Facility is permitted by DEP c and operates at a permitted capacity of 2 MGD. The injection wells at the Key Largo Wastewater Treatment facility are designed and permitted to 0 exceed full build out. 130. Ms. Jetton testified that, based on reports she has reviewed, when you inject effluent into shallow injection wells, that water will reach the CD surface water "within a few hours or a few days." She referenced numerous 0 scientific reports which were admitted in evidence as sources on which she based her opinions. She further referred to findings in the Administration c Commission's 1995 Final Order that deep water injection wells are a better form of treatment than shallow injections wells. Finally, Ms. Jetton pointed 0 to the 2014 and 2017 FKNMS reports as evidence that shallow well injections may contribute to nutrients in nearshore waters. 131. The excerpt of the 2014 report introduced in evidence contains no reference to a relationship between shallow injection wells and the water 24 Petitioners concede that deep injection wells have no quantified impact on the water U quality of the nearshore waters of Key West or the Florida Keys. 41 Packet Pg. 3469 Q.3.g quality of nearshore waters. The 2017 report mentions there may be a N connection. 132. Respondents introduced the testimony of Michael C. Alfieri, who is a licensed professional geologist, certified by the National Groundwater Association as a ground water professional, and certified by the American Institute of Hydrology as a professional registered hydrogeologist. Mr. Alfieri's main practice in Florida is in karst hydrogeology, and he is one c of the authors of the definitive text in Florida on karstology. 133. Mr. Alfieri testified that the subsurface conditions in Marathon, as shown in the core samples and boring logs he personally reviewed, indicate c CD the presence of aquitards25 and semi-confining materials, including calcite W calcrete with clay silt, which would significantly inhibit vertical migration of inj ectate into surface water adjacent to Marathon's shallow injection wells.26 134. Based on his knowledge and experience, Mr. Alfieri testified that treated wastewater or stormwater injected down a shallow injection well does not rise to the surface in the nearshore waters surrounding the Keys. He 0 further explained that once treated effluent is injected into either a deep or i shallow well, it undergoes geochemical reactions as it interacts with, and is absorbed by, the surrounding rock, which reduces nutrient concentration. CD 135. Mr. Alfieri testified that based on the advanced wastewater 0 treatment facilities and injection wells used by Respondents, the depths of the injection wells and their current level of usage, as well as the c surrounding geological features, including the confining layers, which are horizontally transmissive, the additional residential units authorized by the 0 Plan Amendments would have no impact on nearshore waters of the Florida Keys. 25 Aquitards are materials that have a low potential to transmit water. Clay is the best x UJ material to serve as an aquitard given that it has high porosity and low permeability which �. makes it difficult for water to move through. 26 The parties stipulated that deep injection wells"do not have a quantified impact on the water quality of the nearshore waters of Key West or the Florida Keys." 42 Packet Pg. 3470 Q.3.g 136. The undersigned finds Mr. Alfieri's testimony more persuasive and N reliable than Ms. Jetton's recounting of studies undertaken by other professionals. c 137. On the theory that injected treated effluent contaminates the nearshore waters of the Keys, Petitioners allege the Plan Amendments render Respondents' comprehensive plans internally inconsistent with the following policies, respectively: c Marathon • Infrastructure Element ("IE") Goal 3-1: "[E]nsure availability of needed public facilities associated with wastewater disposal ... in a c CD manner that is environmentally sound and protects marine W environments, including sea grass beds and nearshore waters[.]" • IE Goal 3-2: "[Marathon] shall provide for environmentally ... sound 0 treatment and disposal of sewage, which meets the needs of ... residents, while ensuring the protection of public health and the E maintenance and protection of ground, nearshore and offshore, water 0 quality[.]" • IE Objective 3-2.2: "[Marathon] shall regulate land use and CD development to ... protect the functions of natural drainage features and groundwater from the impacts of wastewater systems." 0 Islamorada • FLU Goal 1-1, which provides in pertinent part, as follows: 0 The comprehensive Plan shall provide a growth management framework that ... encourages y sustainability by limiting growth in order to establish and maintain acceptable levels of service for ... wastewater services ... and ... reclaim and preserve the quality of [Islamorada's] natural resources ... [r]elies on ecological constraints to E establish limits for growth ... to ensure that human induced activities do not diminish assets of our 43 Packet Pg. 3471 Q.3.g unique coastal environment; and provides a sound N basis for developing land use controls that ... protect coastal resources, including nearshore waters, wetlands, grassbed flats, mangroves... and c establish a basis for managing ... water quality[.] • CE Goal 6-1: "Islamorada ... shall conserve, manage, use and protect the natural and environmental resources ... based on their carrying capacity limitations to ensure continued resource availability and 0 environmental quality." 0 • CE Objective 6-1.9: "Islamorada ... shall provide requirements designed to protect fisheries, wildlife and wildlife habitat from the adverse impacts of development by regulating the location, density and intensity of those activities that cause the adverse impact." 0 Key West • FLU Goal 1-1: "Minimize Threats To Health, Safety, And Welfare Which May Be Caused By Incompatible Land Uses, Environmental 0 Degradation[.]"27 �I • CME Goal 5-1: "Coastal Management. Restrict development activities CD that would damage or destroy coastal resources. Protect human life and limit public expenditures in areas subject to destruction by natural 0 disasters[.]" • CME Objective 5-1.1: "Protect Coastal Resources, Wetlands, Estuarine 0 Salt Pond Environmental Quality, Living Marine Resources, And Wildlife Habitats. ... (1) Preventing potentially adverse impacts of development and redevelopment on wetlands, estuaries, water 27 Petitioners inaccurately cite the monitoring measure attributable to Objective 1-1.16 as if it relates to Goal 1-1. The Monitoring Measure attributable to Objective 1-1.16 is "Number of E building permits allocated annually in accordance with the implementing policies." 44 Packet Pg. 3472 Q.3.g resources, living marine resources, and other natural resources; N (2) Maintaining or improving coastal environmental quality by improving stormwater management[.]" • CME Policy 5-1.1.4: "Protect Living Marine Resources, Coastal Marsh, a and Seagrass Beds ... [Key West] shall seek to enhance seagrass beds and coastal nontidal wetland habitats[.]" c • CME Policy 5-1.2.2: "[Key West] shall continue to limit the specific and c cumulative impacts of development and redevelopment upon water 0 quality and quantity, wildlife habitat, and living marine resources by CD enforcing performance standards cited herein. Wastewater system W improvements shall also be carried out to reduce potential adverse impacts on the coral reef. In amending its land development 0 regulations, the City shall consider the establishment of additional protective policies for coral." 0 • CME Policy 5-1.4.1: "Public Investments in Coastal High-Hazard Area. i Publicly funded facilities shall not be built in the Coastal High-Hazard Area, unless the facility is for the protection of the public health and CD safety." 0 • CE Objective 6-1.2: "Detrimental water quality impacts, including adverse impacts to the coral reef system shall continue to be combated by public facility improvements identified in the Public Facilities Element .... Monitoring Measure: Achievement of water quality ... 0 standards." 138. Respondents' wastewater treatment plants are in compliance with their DEP wastewater treatment plant and injection well permits. 45 Packet Pg. 3473 Q.3.g 139. Furthermore, there have been no violations of the permits for N Respondents' wastewater treatment facilities that could potentially impair nearshore water quality. c 140. As a condition precedent to issuing permits for Respondents' injection wells, DEP required Respondents to provide reasonable assurance that the operation of the wells will not cause or contribute to a violation of surface water quality standards and will not harm environmental resources. 0 141. Petitioners did not prove that the Marathon Plan Amendment is internally inconsistent with the Marathon Comprehensive Plan Goal 3-1, Goal 3-2, and Objective 3.2.2. c CD 142. Petitioners did not prove the Islamorada Plan Amendment is W internally inconsistent with Islamorada Comprehensive Plan Goal 1-1, Goal 6-1, and Objective 6-1.9. 143. Petitioners did not prove the Key West Plan Amendment is internally c inconsistent with Key West Comprehensive Plan Goals 1-1 and 5-1; Objective 5-1.1 and Policies 5-1.1.4, 5-1.2.2, and 5-1.4.1; and Objective 6-1.2. 0 Ecolo,ical Impacts i 144. Petitioners maintain the Plan Amendments are not supported by the best available data on the ecological carrying capacity of the Keys with regard to habitat protection. 0 145. The FKCCS recommended four guidelines for future development in the Keys: (1) prevent encroachment into native habitat; (2) continue and c intensify existing programs (e.g., land acquisition, wastewater treatment); (3) focus future growth on redevelopment and infill; and (4) increase efforts to 0 manage the resources. 146. Since the FKCCS was published in 2002, the local governments in the ACSC have completed numerous work programs designed to implement the recommendations, including updating habitat mapping, maximizing grant funding for land acquisition, and acquiring environmentally-sensitive E lands to remove them from potential development. 46 Packet Pg. 3474 Q.3.g 147. Furthermore, the BPAS system integrates environmental concerns N when scoring applications for the units allocated. In Marathon, Policy 1-3.5.4 affords the greatest weight to applications for development of scarified and c infill lots with existing paved roads, water, and electric service. The Plan affords the least weight to applications on lots containing sensitive areas as identified on the vegetation and species maps. Further, the Marathon plan provides that, "in no case shall more than one (1) BPAS allocation per year be c issued for properties which in part or whole designated as Hardwood Hammock, Palm Hammock, Cactus Hammock, or Beach/Berm." 148. The Key West comprehensive plan mandates that new development c CD CD preserve, at a minimum, "all wetlands and ninety (90) percent of hardwood C hammocks." The Key West plan does not allow development in any wetlands "except where State and/or federal agencies having jurisdiction provide for development rights." 149. The Islamorada comprehensive plan mandates that new development preserve "all undisturbed wetlands" and 90 percent of high quality tropical 0 hardwood hammocks on the parcel being developed. The Islamorada i comprehensive plan also discourages development of lots containing both disturbed and undisturbed habitats by applying the most stringent open CD space requirements to development sites containing the highest quality 0 habitats. For example, the minimum open space requirement for high quality hammock is .90; while for undisturbed saltmarsh and buttonwood wetlands, c as well as undisturbed mangrove and freshwater wetlands, the ratio is 1.0. The plan requires an open space ratio of .90 for disturbed saltmarsh and 0 buttonwood wetlands, as well as disturbed mangrove and freshwater wetlands. 150. Nevertheless, Petitioners argue that the Plan Amendments allow new units to be built in disturbed hammock which constitutes additional encroachment into hammock, contrary to the FKCCS. Petitioners point to E the provision of the Plan Amendments which provides that the workforce 47 Packet Pg. 3475 Q.3.g affordable units "shall not be placed in any habitat defined as mangroves, N saltmarsh & buttonwood, hardwood hammock,[28] or fresh water wetlands (disturbed categories excepted)[.]" c 151. The provisions of the Plan Amendments must be read together with existing comprehensive plan provisions. When read together, the Marathon comprehensive plan may not allow any of the affordable-early evacuation units to be built on any hammock habitat because it only allows one BPAS 0 permit per year be allocated to any parcel containing designated hardwood hammock. Since the Plan Amendment requires the units be built as multifamily, thereby utilizing multiple allocations for one application, it is c CD impossible to permit the new affordable units on any lot designated hardwood C hammock. 152. Further, the Marathon BPAS weighting system will apply to the new allocations,29 which will continue to direct development to scarified lots, and those lots with maximum disturbed areas. The Islamorada plan open space requirements will apply to disincentivize development of parcels with high 0 quality hammock, buttonwood wetlands, and freshwater wetlands, by i requiring the most stringent open space ratios. 153. Petitioners did not prove the Plan Amendments are not based on CD data and analysis of the ecological carrying capacity of the Keys. 0 154. Petitioners allege that the Plan Amendments are internally inconsistent with the following provisions of the Marathon and Islamorada c plans relating to ecological concerns: Islamorada: 0 • GOAL 1-1: IMPLEMENT FUTURE LAND USE VISION, which reads, in pertinent part, as follows: LU 211 The Islamorada Plan Amendment refers to"tropical" hardwood hammock. 29 Only the Key West Plan Amendment exempts the allocation of the affordable-early evacuation units from the BPAS. 48 Packet Pg. 3476 Q.3.g [Islamorada was] incorporated to create a N Comprehensive Plan to reclaim the Keys by conserving, preserving, and retaining our remarkable assets—our waters and natural c environment—and our quality of life; Encourages sustainability by limiting growth in order to ... reclaim and preserve the quality of our natural resources; Relies on ecological constraints to establish limits for growth and create standards and criteria to ensure that human induced activities do not diminish assets of our unique c coastal environment[.] 0 4- • Policy 2-1.9.3: Participate in the Florida Keys Carrying Capacity Study. ... "[Islamorada] shall continue to support the technical undertakings of this study, and the establishment of carrying capacity limitations for the Florida Keys." 0 • Goal 6-1: "Islamorada ... shall conserve, manage, use and protect the natural and environmental resources ... based on their carrying capacity limitations to ensure continued resource availability and c environmental quality." 2I • Policy 6-1.4.4: "Islamorada ... shall use the best available technical CD criteria and information to formulate regulations and ordinances c which shall ensure that future development is compatible with the functioning and carrying capacity of existing natural systems and resources conservation." Marathon 0 • Objective 1-2.1: which calls for adequate public facilities and services for future growth "to ... protect valuable natural resources...." 155. Petitioners did not prove the Marathon Plan Amendment is internally inconsistent with Objective 1-2.1. 49 Packet Pg. 3477 Q.3.g 156. Petitioners did not prove the Islamorada Plan Amendment is N internally inconsistent with Goal 1-1, Policy 2-1.9.3, Goal 6-1, and Policy 6-1.4.4. Other Contentions Surveys, Studies, and Data 157. Petitioners alleged the Plan Amendments violate section 163.3177(6)(a)2., which reads, in pertinent part, as follows: 0 2. [P]Ian amendments shall be based upon surveys, studies, and data regarding the area, as applicable, including: 0 a. The amount of land required to accommodate anticipated growth. W b. The projected permanent population of the area. c. The character of undeveloped land. c d. The availability of water supplies, public facilities, and services. 0 U e. The need for redevelopment, including renewal of 2I blighted areas and the elimination of nonconforming uses which are inconsistent with the character of the community. CD f. The compatibility of uses on lands adjacent to or closely proximate to military installations. 0 g. The compatibility of uses on lands adjacent to an airport[.] h. The discouragement of urban sprawl. i. The need for job creation, capital investment, and economic development that will strengthen and diversify the community's economy. j. The need to modify land uses and development patterns with antiquated subdivisions. (emphasis added). 50 Packet Pg. 3478 Q.3.g 158. Many of the listed criteria are not applicable to the Plan N Amendments because the Plan Amendments do not propose a specific type of development at a specific location, do not implicate antiquated subdivisions, and do not specifically implicate redevelopment of blighted areas. 159. Respondents considered the availability of water supplies and other public services, such as the capacity of wastewater treatment facilities, during plan review and adoption. Respondents also considered the need of 0 the service sector of the economy—including retail and restaurant services, as well as public school and first-responder services—during plan review and adoption. c CD CD 160. Petitioners did not prove the Plan Amendments are not based upon C W applicable surveys, studies, and data as required by section 163.3177(6)(a)2. Meaningful and Predictable Standards 161. Petitioners allege the Plan Amendments violate section 163.3177(1), which requires, among other things, that "the plan shall establish meaningful and predictable standards for the use and development of land[.]" 0 162. First, Petitioners focus on the language of the Plan Amendments i which requires location of the workforce-affordable housing to "ensure accessibility to employment centers and amenities." Petitioners argue that, CD because none of the Plan Amendments define either "employment center" or 0 "amenity," these standards are not meaningful to identify those sites which would qualify for development under the Plan Amendments. c 163. Lack of definition alone does not render the terms meaningless. If so, all of the terms in both the Marathon and Islamorada plans, which do not 0 contain a definition section, would be rendered meaningless. That simply cannot be the case. 164. Both the Key West and the Islamorada comprehensive plans employ the same phrasing in other parts of the existing plan as used in the Plan Amendments. In Policy 3-1.5.2, Islamorada provides that "sites for affordable E housing ... shall be approved only if such sites [are] ... [a]ccesible to 51 Packet Pg. 3479 Q.3.g employment centers[.]" The Key West comprehensive plan uses the same N exact language in Policy 3-1.1.7 for siting affordable housing generally, and in Policy 3-1.1.11 for siting housing for low- and moderate-income households particularly. Clearly, determining whether the housing provided for in the Plan Amendments is "accessible to employment centers" will not be a novel undertaking, at least not for planners in Key West and Islamorada where that same standard has been successfully applied to siting affordable housing c prior to the Plan Amendments. 165. The Marathon comprehensive plan does not employ the same terms. Yet, Mr. Garrett had no difficulty identifying Old Town as an employment c CD CD center in Marathon. In fact, Mr. Garrett identified all the City's employment C centers as being located generally between Coco Plum and the Seven Mile Bridge. As for determining whether the housing authorized under the Plan Amendment will be "accessible" to an employment center, Petitioners complain that there is "no spatial or temporal requirement whatsoever." To be fair, accessibility, as used in this context, is a subjective term. However, 0 Mr. Garrett explained that accessibility is not limited to distance alone. As an i example, he testified that housing located a mile-and-a-half from an employment center in Marathon is accessible by bus routes that run CD throughout the day. 0 166. Petitioners contend that the language is not meaningful because the term "amenities" is also not defined in the Plans. In their Proposed c Recommended Order, Petitioners state, "It is unknown whether this term means anything over and above required concurrency facilities." 0 167. When a legislative term is not specifically defined, it must be given its plain and ordinary meaning. See Greenfield v. Daniels, 51 So. 3d 421, 426 (Fla. 2010) (citing Sch. Bd. of Palm Beach Cty. v. Survivors Charter Schs., Inc., 3 So. 3d 1220, 1233 (Fla. 2009) (quoting Fla. Birth-Related Neurological Injury Comp. Assn v. Fla. Div. of Admin. Hrgs., 686 So. 2d 1349, 1354 (Fla. E 1997))). It is appropriate to refer to a dictionary definition to ascertain the 52 Packet Pg. 3480 Q.3.g plain and ordinary meaning of legislative terms. See Survivors Charter Schs., N 3 So. 3d at 1233. 168. The definition of"amenity" is "something that helps provide comfort, convenience, or enjoyment." Merriam-Webster.com, at www.merriam- webster.com/dictionary/amenity (accessed Sept. 15, 2020). In context, then, an employment center amenity is a use that provides comfort or convenience to those employed in the area, as well as patrons of those businesses. 0 Common sense examples are gas stations, convenience stores, and banks. 169. Petitioners did not prove that the phrase "ensure accessibility to employment centers and amenities" fails to provide meaningful and c CD predictable standards for the use and development of land under the Plan W Amendments. 170. Next, Petitioners contend that the requirement to "incorporate sustainable and resilient design principles into the overall site design" of the workforce-affordable housing is meaningless. In support of this contention, Petitioners introduced the brief, conclusory statement by Ms. Jetton that 0 those terms are meaningless because they are undefined. As stated above, i lack of a definition alone does not render the terms meaningless, and it is found that they are not. CD 171. Petitioners did not prove that the Plan Amendments' direction to 0 "incorporate sustainable and resilient design principles" fails to provide meaningful and predictable standards for the use and development of land c under the Plan Amendments. 172. Finally, Petitioners make a variety of arguments to establish that the 0 Plan Amendments do not provide meaningful standards to ensure enforcement of (1) use of the units for workforce-affordable housing, and (2) early evacuation of those units. 173. Petitioners allege that the Plan Amendments "do not require the units or the residents to meet any affordable housing criteria, or adopt by E reference any such requirements." Ms. Jetton testified that, because the Plan 53 Packet Pg. 3481 Q.3.g Amendments do not include, or otherwise adopt, HUD income guidelines, N they will not produce affordable housing. 174. The Plan Amendments require the use of deed restrictions to ensure: (i) the property remains workforce-affordable housing in perpetuity; (ii) tenants evacuate during the period in which transient units are required to evacuate; (ill) rental agreements contain a separate disclosure requiring renters to acknowledge that failure to adhere to the evacuation requirement c CD could result in severe penalties, including eviction, to the resident; and W (iv) on-site property managers are formally trained in evacuation procedures.[30] c 175. Petitioners allege that because the term "workforce-affordable housing" is undefined, there is no mechanism to ensure that the housing built 0 pursuant to the Plan Amendments will be reserved for persons with i particular income limits. 176. As previously discussed, a term is not meaningless just because it is undefined in the Plan Amendment. The Key West comprehensive plan 0 4- defines the term "affordable housing" according to HUD standards, as a unit for which "a household spends no more than 30 percent of its gross income on c housing costs." While the term is not specifically defined in the Islamorada and Marathon plans, both jurisdictions implement affordable housing c programs established in their plans through more specific land development regulations which establish income limitations for that housing. As those plans are already in compliance, they cannot be said to lack meaningful and predictable standards. 30 The Key West Plan Amendment does not include this provision. 54 Packet Pg. 3482 Q.3.g 177. Mr. Garrett testified that the term workforce would be given its plain N and ordinary meaning—persons employed within the County. Thus, workforce-affordable housing units are reserved for members of the workforce who meet the previously-established definitions of affordable housing used to implement the local governments' existing programs. 178. Petitioners' attack on the enforcement of the early evacuation requirement is, again, grounded in a lack of defined terms, as well as c speculation that the provisions are unenforceable. Ms. Jetton speculated that most residents of this housing would be either unable or unwilling to evacuate early, and that the Plan Amendment language has no teeth to c CD CD ensure early evacuation. She testified that the language is permissive C "failure to adhere to evacuation requirements could result in severe penalties"—meaning it may not be enforced at all. According to her, because the term "severe penalties" is also undefined, the entire provision is meaningless to enforce the early evacuation requirement. 179. Mr. Garrett testified that the enforcement of penalties would be the 0 authority of the Code Compliance Department and that each case would be i considered on its own individual facts. 180. In addition, the Plan Amendments include a process for evaluation of CD the effectiveness and enforcement of the "early-evacuation pool" established 0 therein. The Plan Amendments require each local government to report to DEO annually documenting the number of workforce-affordable housing c units built, the occupancy rates thereof, and compliance with the early evacuation requirement. Should there be any enforcement issues, the state c can make refinements in the program. Further, data regarding either lack of enforcement of the units as "affordable," or required evacuation thereof, could support future Plan Amendments to address those issues. 181. Petitioners did not prove that the Plan Amendments lack meaningful and predictable standards for either the use of the workforce-affordable E housing units or early evacuation thereof. 55 Packet Pg. 3483 Q.3.g CONCLUSIONS OF LAW N 182. The Division of Administrative Hearings has jurisdiction over the subject matter and parties hereto pursuant to sections 120.569, 120.57(1), and 163.3184(5), Florida Statutes (2019). 183. To have standing to challenge or support a plan amendment, a person must be an "affected person," as defined in section 163.3184(1)(a). 184. Petitioners are all "affected persons" with standing to bring this 0 action pursuant to 163.3184(1)(a). 185. "In compliance" means "consistent with the requirements of §§ 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, and 163.3248, with the c CD appropriate strategic regional policy plan, and with the principles for guiding C development in designated areas of critical state concern and with part III of chapter 369, where applicable." § 163.3184(1)(b), Fla. Stat. 186. Respondents' determinations that the Plan Amendments are "in compliance" are presumed to be correct and must be sustained if the determinations of compliance are fairly debatable. See § 163.3184(5)(c), Fla. 0 Stat. i 187. "The `fairly debatable' rule is a rule of reasonableness; it answers the question of whether, upon the evidence presented to the [government] body, CD the [government's] action was reasonably-based." Lee Cty. u. Sunbelt 0 Equities, II, Ltd. P'ship, 619 So. 2d 996, 1002 (Fla. 2d DCA 1993) (citing Town of Indialantic u. Nance, 400 So. 2d 37, 39 (Fla. 5th DCA 1981)). c 188. The mere existence of contravening evidence is not sufficient to establish that a land planning decision is "fairly debatable." It is firmly 0 established that: [E]ven though there was expert testimony adduced in support of the City's case, that in and of itself does not mean the issue is fairly debatable. If it did, every zoning case would be fairly debatable and the City would prevail simply by submitting an expert who testified favorably to the City's position. Of course that is not the case. The trial judge still 56 Packet Pg. 3484 Q.3.g must determine the weight and credibility factors N to be attributed to the experts. Here the final judgment shows that the judge did not assign much weight or credibility to the City's witnesses. Boca Raton u. Boca Villas Corp., 371 So. 2d 154, 159 (Fla. 4th DCA 1979). 189. The standard of proof to establish a finding of fact is preponderance of the evidence. See § 120.57(1)0), Fla. Stat. The MOU 190. Petitioners allege, as grounds for finding the Plan Amendments not 0 "in compliance," that the Plan Amendments are inconsistent with the MOU. 0 Petitioners' allegations of inconsistency with the MOU are not well taken. Only those specific items listed in the statutory definition of"in compliance" W may form the basis for finding the Plan Amendments not "in compliance." See Consol. Citrus u. Martin Cty., Case No. 13-3393 (Fla. DOAH Jan. 23, 2013, 0 Order on Respondent's Mot. in Lim. or in the Alter. Mot. to Strike) (whether plan amendment is consistent with sections 163.3162, 193.461, 823.14, Florida Statutes, and Florida Administrative Code Rules 62B-33 and 40E-8 c U are not compliance issues); Cemex Constr. Materials Fla. u. Lee Cty., Case 2I No. 10-2988 (Fla. DOAH Feb. 21, 2012; Fla. DCA Apr. 10, 2012) (whether plan amendment is consistent with section 337.0261(3), Florida Statutes, is CD not a compliance criterion); Monkus u. City of Miami, Case No. 04-1080 (Fla. DOAH Sept. 3, 2004; Fla. DCA Oct. 26, 2004) (consistency with land 0 development regulations is not a compliance issue); Emerald Lakes Residents' Ass'n u. Collier Cty., Case No. 02-3090 (Fla. DOAH Feb. 10, 2003; Fla. DCA May 8, 2003) (whether plan amendment was adopted in conformity with c U procedural requirements of section 163.3185(15)(c) is not a compliance issue); 2 Current u. Town of Jupiter, Case No. 03-0718 (Fla. DOAH Oct. 24, 2003; Fla. DCA Apr. 9, 2004) (whether plan amendment conflicts with local government resolution is not a compliance issue); Durham Park Neighborhood u. City of Miami, Case No. 06-0759 (Fla. DOAH May 24, 2006 Order Granting Leave to 57 Packet Pg. 3485 Q.3.g Amend but Striking Portions of Amended Pet.) (striking Petitioners' claims N that plan amendment is not consistent with Florida Administrative Code Rule 9J-11 because the provisions are not compliance criteria); and Pyle V. City of St. Pete Beach, Case No. 08-4772 (Fla. DOAH Jan. 28, 2009, Order on Mot. to Strike) (requirement to submit a "complete" plan amendment package pursuant to section 163.32456 is not a compliance issue). 191. If the MOU was adopted by reference in Respondents' comprehensive 0 plans, Petitioners' argument might have had merit. However, none of the comprehensive plans adopts the MOU by reference. The MOU is a separate stand-alone document which may be amended by agreement of the parties, c CD CD outside of the statutory plan amendment process. C Internal Inconsistences 192. Section 163.3177(2) mandates "the several elements of the comprehensive plan shall be consistent." c 193. Petitioners did not prove, beyond fair debate, that the Plan Amendments are inconsistent with specifically-identified provisions of 0 Respondent's plans relating to hurricane evacuation clearance times, quality i of nearshore waters, wastewater treatment, or habitat protection. 194. Petitioners did not prove beyond fair debate that the Plan CD Amendments are inconsistent with section 163.3177(2). 0 Data and Analysis 195. Section 163.3177(1)(0 requires plan amendments to be "based upon c relevant and appropriate data and analysis" by the local government, and includes "surveys, studies, community goals and vision, and other data 0 available at the time of adoption." 196. To be based on data "means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan amendment." § 163.3177(1)(f), Fla. Stat. E 58 Packet Pg. 3486 Q.3.g 197. Based upon the foregoing Findings of Fact, Petitioners did not prove N the Plan Amendments are not supported by adequate data and analysis, or fail to react to professionally-acceptable data in an appropriate way. 198. Petitioners did not prove beyond fair debate that the Plan Amendments are inconsistent with section 163.3177(1)(f). Principles for Guidin, Development 199. "In compliance" is defined to include consistency with the Principles, c which apply to both Marathon and Islamorada.31 Petitioners alleged the Plan Amendments are inconsistent with section 380.005(9), which requires plan amendments comply with the requirement to "maintain[] a hurricane c CD evacuation clearance time for permanent residents of no more than 24 hours." W Based on the foregoing Findings of Fact, it is at least fairly debatable that the Plan Amendments will not cause evacuation clearance time of the ACSC to exceed the 24-hour evacuation clearance time. 200. Furthermore, the Principles "may not be construed or applied in isolation," but must be "construed as a whole." § 380.0552(7), Fla. Stat. The 0 undersigned is required to balance the Principles as applied to Petitioners' i challenges. One of the other major Principles implicated by the Marathon and Islamorada Plan Amendments is to "[m]ake[] available adequate CD affordable housing for all sectors of the population of the Florida Keys." 0 § 380.0552(7)(1), Fla. Stat. The parties stipulated to the need for affordable housing, which has a documented impact on the Keys' economy. The need to c house the workforce for the service sector of the Keys' economy implicates another Principle: to ensure "the maximum well-being of the Florida Keys 0 and its citizens through sound economic development." § 380.0552(7)(d), Fla. Stat. 201. With regard to Key West, Petitioners urge the Plan Amendment is inconsistent with Florida Administrative Code Rule 28-36.003(1)(a), (h), and 31 The Principles for Guiding Development in the Key West ACSC make no reference to hurricane evacuation clearance times. See Fla. Admin. Code R. 28-36.003. 59 Packet Pg. 3487 Q.3.g (2)(a)7., which require plan amendments to "[s]trengthen local government N capabilities for managing land use and development"; "[p]rotect ... the public health, safety, welfare, and economy of the City of Key West, and [maintain] Key West as a unique Florida Resource"; and adopt an "evacuation plan consistent with regional and [Monroe] County plans ... which provides an opportunity for residents and visitors to evacuate to a place of safety during a natural disaster," respectively. 0 202. Based upon the foregoing Findings of Fact, Petitioners did not prove beyond fair debate that the Key West Plan Amendment is inconsistent with the listed Principles. c CD Other Contentions W 203. Petitioners raised additional arguments, which were likewise not proven beyond fair debate. 204. Petitioners alleged the Plan Amendments violate section 163.3177(6)(a)2., which requires consideration of specifically-listed types of data and analysis for adoption of plan amendments. Respondents considered 0 the availability of water supplies and other public services during plan i review and adoption. Respondents also considered the need of the service sector of the economy—including retail and restaurant services, as well as CD public school and first-responder services—during plan review and adoption. 0 205. Based on the foregoing Findings of Fact, Petitioners did not prove, beyond fair debate, that the Plan Amendments are inconsistent with section c 163.3177(6)(a)2. 206. Petitioners contend the Plan Amendments were inconsistent with 0 section 163.3177(6)(a)8., which requires, as follows: 8. Future land use map amendments shall be based upon the following analysis: a. An analysis of the availability of facilities and services. 60 Packet Pg. 3488 Q.3.g b. An analysis of the suitability of the plan N amendment for its proposed use considering the character of the undeveloped land, soils, topography, natural resources, and historic resources on site. (emphasis added). 207. The cited statutory section is inapplicable to the Plan Amendments because they are not future land use map amendments. 208. Petitioners also contend the Plan Amendments were inconsistent c with the requirement in section 163.3177(1) that local government comprehensive plans "shall establish meaningful and predictable standards for the use and development of land[.]" Based on the foregoing Findings of c Fact, Petitioners did not carry their burden of proof with respect to that W issue. Conclusion 209. For the reasons stated above, Petitioners have not proven beyond fair debate that the Plan Amendment is not "in compliance," as that term is defined in section 163.3184(1)(a). 0 i RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is CD RECOMMENDED that the Department of Economic Opportunity enter a final 0 order determining the City of Marathon Comprehensive Plan Amendment 2018-01, adopted on October 23, 2018; City of Key West Comprehensive Plan c Amendment 19-06, adopted on April 4, 2019; and Islamorada, Village of Islands, Comprehensive Plan Amendment 19-03, adopted on March 5, 2019; 0 are in compliance," as that term is defined in section 163.3184(1)(b). 61 Packet Pg. 3489 Q.3.g DONE AND ENTERED this 25th day of September, 2020, in Tallahassee, N Leon County, Florida. c SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us c CD Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2020. 0 COPIES FURNISHED: Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. Suite C U 61 Northeast 1st Street 2 i Pompano Beach, Florida 33060 (eServed) CD Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. Suite C 61 Northeast 1st Street c Pompano Beach, Florida 33060 (eServed) Shai Ozery, Esquire Robert N. Hartsell P.A. 2 Suite C 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) 62 Packet Pg. 3490 Q.3.g Barton William Smith, Esquire N Law Firm of Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 c (eServed) Christopher B. Deem, Esquire Law Firm of Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) c U Nicola J. Pappas, Esquire Law Firm of Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 W (eServed) Richard J. Grosso, Esquire Richard Grosso P.A. 0 Mail Box 300 6511 Nova Drive Davie, Florida 33317 E (eServed) 0 Shawn D. Smith, City Attorney City of Key West, City Attorney's Office 1300 White Street CD Post Office Box 1409 Key West, Florida 33040 (eServed) c George B. Wallace, Esquire City of Key West, City Attorney's Office 1300 White Street E Post Office Box 1409 c Key West, Florida 33040 (eServed) Roget V. Bryan, Esquire Islamorada, Village of Islands 86800 Overseas Highway Islamorada, Florida 33036 E (eServed) 63 Packet Pg. 3491 Q.3.g Janay Lovett, Agency Clerk N Department of Economic Opportunity Caldwell Building 107 East Madison Street c Tallahassee, Florida 32399-4128 (eServed) Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street c Tallahassee, Florida 32399-4128 (eServed) 0 Mark Buckles, Interim General Counsel Department of Economic Opportunity W Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) 0 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS m All parties have the right to submit written exceptions within 15 days from 0 the date of this Recommended Order. Any exceptions to this Recommended 2I Order should be filed with the agency that will issue the Final Order in this case. CD c 0 64 Packet Pg. 3492 X1: 0 SIM 14 ci' TUZ�ge of ista- nars a� OF N SENT VIA EMAIL AND FED EX April 10, 2019 0 Mr. Ray Eubanks, Plan Processing Administrator Florida Department of Economic Opportunity Caldwell Building 107 East Madison Street—MSC 160 Tallahassee, Florida 32399 .N 0 RE: Compliance Review of Adopted Comprehensive Plan Amendments Islamorada,Village of Islands,Submittal Package State land Planning Agency Amendment ID X: 19-01ACSC 0 Dear Mr. Eubanks: r9 Pursuant to Chapter 163, Part Il, Florida Statutes, the Islamorada, Village of Islands Planning and Development Services Department, acting within the Florida Keys Area of Critical State Concern, hereby transmits three (3) copies of its adopted Plan Amendment Submittal Package 19-01 ACSC of the Islamorada, Village of Islands Comprehensive Plan and hereby requests that the Florida Department of Economic Opportunity review the adopted amendments.The amendments are subject to State Coordinated Review process pursuant to Section 163.3184(4), Florida Statutes. One (1) copy of each package is paper and two (2) copies are on CD-ROM in PDF format. There is one (1) adopted ordinance in the package,summarized in the table below.The ordinance does not amend the future land use map.The adopted amendment affects Chapter 3: Housing Element of the Comprehensive Plan. 0 Lo One copy of each plan amendment submittal package was transmitted concurrently to each of the following agencies and governments for their review and written response: LU South Florida Regional Planning Council ■ South Florida Water Management District ■ Monroe County, Florida ■ Florida Department of State ■ Florida Department of Environmental Protection ■ Florida Department of Education ■ Florida Department of Transportation Page 1 of 3 86800 Overseas Highway • Islamorada,Florida330 6-316 Office 305-6 - 4 0 - Fax 0 - 4- 467 - www.islanwradaM,us Packet Pg. 3493 Q.3.h Summary of the Plan Amendment Submittal Package Content: Each plan amendment listed below includes the adopted text,copies of recommendations and support documents, including any required data and analysis. Ord Amendment Amendment LPA 1st VC 2nd VC Hearing Hearing Hearing No. Name Title Date Date Date N n/a ADOPTED AN ORDINANCE OF ISLAMORADA, 12/10/18 12/13/18 4/4/19 TEXT VILLAGE OF ISLANDS, FLORIDA, AMENDMENT AMENDING CHAPTER 3 "HOUSING ESTABLISHING ELEMENT" AND ASSOCIATED GOAL 3-2 OBJECTIVES AND POLICIES OF THE VILLAGE'S COMPREHENSIVE PLAN; ESTABLISHING GOAL 3-2 ENTITLED "WORKFORCE-AFFORDABLE HOUSING INITIATIVE" TO PROVIDE FOR AN N ADDITIONAL 300 AFFORDABLE UNIT ALLOCATIONS TO BE IDENTIFIED AS THE "AFFORDABLEEARLY EVACUATION POOL"; PROVIDING FOR SEVERABILITY; PROVIDING FOR THE o REPEAL OF ALL CODE PROVISIONS AND CD ORDINANCES INCONSISTENT WITH THIS W ORDINANCE; PROVIDING FOR INCLUSION IN THE CODE; PROVIDING FOR THE TRANSMITTAL OF THIS ORDINANCE TO THE FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY;AND PROVIDING FOR AN EFFECTIVE DATE UPON APPROVAL OF THIS ORDINANCE BY THE FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY. ■ The adopted amendment is related to the Florida Keys Area of Critical State Concern, pursuant to Section LO 380.05, Florida Statutes. Lu ■ The plan amendment is not within Orange, Lake or Seminole Counties and,therefore,the plan amendments do not apply to the Wekiva River Protection Area pursuant to Chapter 369, Part Ili, Florida Statutes. m • A copy of the complete amendment package including supporting data and analysis has been mailed to all of the required review agencies on the date of this letter. • The amendment is not proposed to be adopted under a joint planning agreement pursuant to Section 163.3171, Florida Statutes. ■ The amendment does not update the five-year schedule of Capital Improvements. ■ There were no requests for citizen courtesy information. Page 2 of 3 Packet Pg. 3494 Q.3.h The following person is familiar with the proposed amendments and is responsible for ensuring that the materials transmitted are complete: Ty Harris, Esq. Director of Planning N Islamorada,Village of Islands 86800 Overseas Highway Islamorada, Florida 33036-3162 Phone 305.664.6422 Fax 305.664.6464 PlanningDirector@islamorada.fl.us Thank you in advance for your timely review of these materials. Should you have any questions about the proposed amendments, please contact us. Sincerely, 0 2 4- Ty Harris, Esq. Director of Planning CD Encl. Cc: Corey Aitken, Resiliency Planner& Economic Development,SFRPC Sent Electronically Isabel Moreno,Administrative Assistant, SFRPC Sent Electronically EmilySchemper,Asst.Director,Monroe Counly Planning and Environmental Resouroes Sent Electronically Plan Reviewer, FDEP Sent Electronically Shereen Yee Fong,Transportation Planner, FDOT District 6 Sent Electronically Terese Manning, Policy and Planning Analyst,SFWMD Sent Electronically Deena Woodward, Historic Preservation Planner, FDOS Sent Electronically Barbara Powell,Areas of Critical State Concern Administrator, DEO Sent Electronically o Kylene J.Casey,Growth Management& Legislative Liaison, FDOE Sent Electronically Village Council (no enclosures) ASent Electronically ,n Seth Lawless,Village Manager(no enclosures) Sent Electronically Roget.V. Bryan,Village Attorney(no enclosures) Sent Electronically .. Page 3 of 3 Packet Pg. 3495 Q.3.h ORDINANCE NO. 19-03 AN ORDINANCE OF ISLAMORADA, VILLAGE OF ISLANDS,FLORIDA,AMENDING CHAPTER 3 "HOUSING ELEMENT" AND ASSOCIATED OBJECTIVES AND POLICIES OF THE VILLAGE'S COMPREHENSIVE PLAN; ESTABLISHING GOAL 3-2 ENTITLED "WORKFORCE- AFFORDABLE HOUSING INITIATIVE"TO PROVIDE FOR AN ADDITIONAL 300 AFFORDABLE UNIT ALLOCATIONS TO BE IDENTIFIED AS THE "AFFORDABLE-EARLY EVACUATION POOL"; PROVIDING FOR SEVERABILITY;PROVIDING FOR THE N REPEAL OF ALL CODE PROVISIONS AND ORDINANCES INCONSISTENT WITH THIS ORDINANCE; PROVIDING FOR INCLUSION IN THE CODE; PROVIDING FOR THE TRANSMITTAL OF THIS ORDINANCE TO THE FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY; AND PROVIDING FOR AN EFFECTIVE DATE UPON APPROVAL OF THIS ORDINANCE BY THE FLORIDA W DEPARTMENT OF ECONOMIC OPPORTUNITY in 2001, Islamorada, Village of Islands, Florida(the"Village")adopted the Village Comprehensive Plan Village Comprehensive Plan(the"Comprehensive Plan'j which has been determined to be compliant by the State Department of Economic Opportunity ("DEO"), formally the Department of Community Affairs("DCA'j; and 2 WHEREAS,the Village is located within the Florida Keys Area of Critical State Concern LO (the"FKACSC")as established pursuant to Chapter 380,Florida Statutes;and WHEREAS, Section 163.3184, F.S.,establishes a process for adoption of comprehensive plans and Plan Amendments;and WHEREAS, pursuant to Chapter 163, Part II, Chapter 166 and Chapter 380 Florida Statutes(F.S.),the Village proposes to amend Chapter 3"Housing Element"ofthe Comprehensive Packet Pg. 3496 Q.3.h Plan by adding Goal 3-2 "Workforce-Affordable Housing Initiative" and associated Objectives and Policies;and WHEREAS, the proposed amendments further the goals, objectives and policies of the N Village Comprehensive Plan; and WHEREAS,pursuant to Florida Statutes and the Village Code of Ordinances(the"Code") . the Local Planning Agency(LPA)held a public hearing on January 9,2017 to review the proposed text amendments to the Comprehensive Plan; and WHEREAS,the Village Council held public hearings to review the proposed amendments .N 0 to the Comprehensive Plan; and 2 WHEREAS, the Village Council finds that the proposed amendments to the 0 Comprehensive Plan are consistent with the Village Comprehensive Plan, the Principles for Guiding Development.in the Florida Keys Area of Critical State Concern and are in the best U interests of the Village and its residents. NOW, THEREFORE, E IT ORDAINED Y THE VILLAGE COUNCIL OF ISLAMORADA9 VILLAGE OF ISLANDS,FLORIDA,AS FOLLOWS: Section 1. Recitals.The above recitals are true and correct and incorporated herein by c this reference. Section 2 Amending Chanter 3 " onsing Element" to stab Goal_ 3-2 LO "Workforce—Affordable Housing Initiative. The amendment to the Comprehensive Plan is to amend Chapter 3 "Housing Element" to Establish Goal 3-2 "Workforce-Affordable Housing Initiative and related objectives and policies as follows: Goal 3-2—Workforce-Affordable Housing Initiative. To su ort the Viligge of Islamorada's workforce by-alleviatigg constraints on affordable housin the Villa a shall partici2ate in the Workforce-Affo le Housin Initiative as ved b the Florida Adminis tion Commission during its June 13 2018 meetin The Workforce-Affordable Pam') of 6 1 Packet Pg. 3497 Q.3.h Housing Initiative will Mouire any MA cipatin new co 'an or MaMsed gauctures to commit to evacuating renters within the 48 to 24-hour window of evacuation from the Vil e. Objective 3-2.1 - Provide Workforce- o ble Ho n Building Permit, Allocations. P=mpt to Obieotive 3-1.1. the Village has worked with the State Dowtingnt of N Economic OpRg=ity to "pmvjde W-tqmAfive solutions to i rove access to aff fordable housing." The Villa a the ref m 1 stablish a new limited cate to be known as the "'Affordable-Early Evacuation Pool" for 300 workforce-affordable building_R=ft. allocations to Ngficivate in the Workforce-Affordable Housing Initiative These allocations are in addition to the maximum allocations identified in Rules 28-19 Florida Administrative a Village e nsible for th en di 'buffo and enforcment of reggjrementg associated with the POA allocations. The Vil a of Islarnorada.shall ensure adherence to these MQulrcpMM&—ou.A im lementin the policies of this obiective. N 0 Poll 3-2.1.1 - Distribution of Workforce-Affordable Housing Allocations. Workforce-affordable housing allocations shall be distributed at any time throughIftuate public notice and h elures as set forth in Chanter 30 ofle the Village's Land Devieopment Re lations and in accordance with the BPAS_ mking_procedures established in Chapter 30 Article 4 Division 1l "BuildingCD Permit Allocation S PAS . -- Pole 3-2.1.2 - &gg& S ndards and Reguimmeng for Wo orce- Ie Housing. Workforce-2i6rdable h4using�units built under this pm " shall: a.. be muffifimifly structures,• b. be rental units-, c. require, at a minimum, adherence to the latest edition of the Florida r Buildin ode as Ru-b-l-iAh_ed by the Florida Boil ' Commission: LL d not p in the V-Zone or withi_ the C Barrier Resource Sy ernes e. require on-site RMU!y t: f. coWly with a licable habitat and other location] criteria and y densitie"far multifamily affordable housing units: LO g. shall not be Rlwed in any habitat defined as yes. sal h buttonwood. UQRi: l JuWwood hammock or fiesh water wetlands (except for di d categories) h. incorporate sustainable and resilient design principles into the overall site design: i. ensure accessibility to employment centers and 'ties: j. require deed-restricdons enmdjm that: L thepmp= remains workforce- able housing in etui ii. tenants evacuate during the pg1jod in which transient units are rewired to evacuate-, Page 3 of 6 Packet Pg. 3498 Q.3.h iii. rental agreements contain a separate disclosure reguiring renters to acknowled a that failure to adhere to the evacuation uinement could result in severe penalties,includin eviction to the resident iv. onsite pMgly man ers are formally trained in evacuation Pnc N Policy 3-2.13—Evacuation exemptions. Persons living in workforce-affordable housing who are exempt from evacuation uiremen of Policy 2-1.2.9 includes all first responders, correction officers health care pMfeSSionAls, or other first response workers required to remain during an emergency.provided that the person claiming exemption under this policy has faithfid-1y certified their status with property management. P N 3-2.1.4—ADA Com fiance. All workforce-affordable housin developments must demonstrate compliance with all applicable federal standards for accessibility for persons with disabilities. U Poll 3-2.1A -Evaluation and Re orL The Village of Islamorada shall provide an Annual rt to the state land planning age on the ro and im lamentation of the Workforce- Affordable Housing Initiative.R orted information for h Xtag shall include documentation CD of the number of workforce-affordable units built. accu c rates and com fiance with the W uirement to evacuate the units within the Phase I evacuation-. Such report shall be provided to the State in a fiMely manner such that the State may in lude the inf rmation in there uired �' Annual B=rt to the Governor and Cabinet on the Village of Is-amorada's RmgLess ward com letion of its Work ProgMM Mouant to Rule 28-19 of the F.A. . Section . TransminaL Pursuant to Sections 163.3184 and 163.3187(6)(a), Florida Statutes, the Village Clerk is authorized to forward a copy of this Ordinance to the State y LO Department of Economic Opportunity(the"DEO"). Section . Seve MY.The provisions of this Ordinance are declared to be severable and if any section, sentence,clause or phrase of this Ordinance shall for any reason be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses, and phrases of this Ordinance, but they shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. Nop 4 of 1; Packet Pg. 3499 Q.3.h Section cive Date. This Ordinance shall not be effective immediately upon adoption. However,the Amendment shall not take effect until the date the foal order is issued by the Department of Economic Opportunity to be in compliance in accordance with Chapter 163.3184, N Florida Statutes. The Department of Economic Opportunity ("DEO") notice of intent to find the Amendment in compliance shall be deemed to be the final order if no timely petition challenging the Amendment is filed. > The foregoing Ordinance was offered by Councilman Ken Davis,who moved its adoption on first reading. This motion was seconded by Councilman Jim Mooney, and upon being put to a vote,the vote was as follows: y 0 :Mayor Deb Gillis YES Vice-Mayor Mike Forster YES Councilman Ken Davis YES 0 Councilwoman Cheryl Meads YES Councilman Jim Mooney YESCD PASSED on first reading this 13m day of December,2018. The foregoing Ordinance was offered by Vice Mayor Mike Forster; who moved for its adoption. This motion was seconded by Councilman Jim Mooney, and upon being put to a vote, the vote was as follows: Mayor Deb Gillis YES Vice Mayor Mike Forster YES Councilman Ken Davis YES Councilwoman Cheryl Meads YES Councilman Jim Mooney YES y LO PASSED AND ADOPTED on the second reading 4th day of April, 2019. DEB GILLIS, AY ATTEST: K "LI�Y' �t�7�`1-I, VII,LAGE CL1ERKpµW��..`� Pace 5 of Packet Pg. 3500 Q.3.h APPROVED AS TO FORM AND LEGALITY FOR THE USE AND BENEFIT OF ISLAMORADA, VILLAGE OF ISLANDS ONLY N ROGET V. BRYA ,VILLAGE ATTORNEY 0 U 0 4- 0 i c Lo Lu a,,,,,,4 „f A Packet Pg. 3501 4 CITY OF MARATHON, FLORIDA 9805 Overseas Highway, Marathon, Florida 33050 Phone: (305) 743-0033 Fax: (305) 743-3667 October 24, 2018 VIA FEDEX: 7735-7715-2098 Mr. Ray Eubanks Administrator Plans Review& Processing N Florida Department of Economic Opportunity 107 E. Madison Street Caldwell Building, MSC 160 Tallahassee, Florida 32399 RE:Transmittal of Ordinance 2018-009 upon Second Hearing (Comp Plan Amendment 2018-01ACS0 Dear Mr. Eubanks, N 0 Ordinance 2018-009 is an amendment to the City of Marathon Comprehensive Plan and is therefore subject w to State Coordinated Review process pursuant to Section 163.3184(4), Florida Statutes. 2 4- The Ordinance included herein was adopted by the City of Marathon City Council on October 23, 2018. The c Ordinance represents a modification to the procedures for the Building Permit Allocation System to 1:1 specifically allow 300 Workforce Early Evacuation Residential Units. c, This transmittal package contains one (1) hard copy and two (2) CD's of relevant documents including executed Ordinance, staff agenda reports, and other pertinent materials. co Having been transmitted by the City of Marathon, please accept this adoption package on behalf of the m Department of Economic Opportunity. co r- CD Copies of this transmittal have been sent to all appropriate review agencies. C 0 LU Packet Pg. 3502 Pending the review and approval of Ordinance 2018-009, the City is also transmitting Ordinance 2018-010 which represents the companion amendment to the Land Development Regulations. The City understands that Ordinance 2018-010 may not be reviewed and therefore formally approved until the Department issues a Notice of Intent concerning the 2018-009 Ordinance and that Ordinance becomes effective. Thank you in advance for your review. Should you have any questions, please contact me. Sincerely, > George Garrett, Director of Planning garrettg o)ci.marathon.fl.us 0 City of Marathon Phone: (305) 289-4111 0 Fax: (305) 743-3667 garrettg o)ci.marathon.fl.us 0 cc: City Clerk City Attorney v) Isabella Cosio Carballo, South Florida Regional Planning Council Deena Woodward, Department of State, Bureau of Historic Preservation Scott Sanders,Florida Fish and Wildlife Commission ' Comp Plan Review, Department of Agriculture and Consumer Services Plan Review, Department of Environmental Protectionco , Terry Manning, South Florida Water Management District T- Shereen Yee Fong, Florida Department of Transportation Kylene Casey, Department of Education Christine Hurley, Monroe County Growth Management Director 0 LU Packet Pg. 3503 COUNCIL AGENDA STATEMENT `i'�l�p,§ � df Meeting Date: October 23, 2018 10 To: Honorable Mayor and Council Members kM`° �, From: George Garrett, Planning Director Through: Chuck Lindsay, City Manager Agenda Item: Ordinance 2018-09, Amending The City's Comprehensive Plan, Adding Goal 1-4 And Associated Objectives And Policies To Chapter 1, "Future Land Use Element;" And Goal 1- 4 Shall Be Known As The "Workforce-Affordable Housing Initiative" Providing For An Additional 300 Affordable Allocations To An Allocation Pool To Be Identified As The Affordable-Early Evacuation Pool;" And Providing For Severability; Providing For The Repeal Of Conflicting Provisions; Providing For The Transmittal Of This Ordinance To The State Department Of Economic 0) Opportunity; And Providing For An Effective Date. 0 0 RECOMMENDATION• The City Council unanimously voted for approval of this Ordinance in its first hearing on September 11, 2018. This is the second hearing for this Comprehensive Plan amendment. No changes have been U) made to the Ordinance and the Department of Economic Opportunity has approved the Comprehensive et Plan amendment in its Objections, Recommendations, and Comments (ORC)letter dated last week. co i The Planning Commission heard the item on August 20, 2018 and recommended transmittal to the 0 City Council by unanimous vote. The City Council directed the transmittal of this Ordinance to the co co CD State Department f Economic Opportunity on September 11, 2018. The Department of Economic N Opportunity has provided a review of the proposed amendment and indicated that it furthers the goals of the Comprehensive Plan consistent with the requirements of the Work Program as adopted by Rule. Similarly, the proposed amendment meets the intent of the Workforce-Affordable Housing Initiative 0 set forth by the Administration Commission. APPLICANT: City of Marathon REQUEST: Amend City of Marathon Comprehensive Plan by Adding Goal 1-4, concerning the Workforce-Affordable Housing Initiative. E ANALYSIS OF COMPREHENSIVE PLAN CHANGE REQUEST: =currentoLapnrd opment Regulations provide only brief guidance concerning the review of a e Plan Amendment. Packet Pg. 3504 Section 102.19 simply states: Section 102.19. Standards for Review. When considering an application for a Comprehensive Plan Amendment, the review shall include all standards and criteria of Fla. Stat. ch. 163. N Standards in Chapter 163, F.S. offer some additional guidance, but are limited. Pertinent sections of Chapter 163 promulgate process rather than establishing criteria for the development of a proposed Comprehensive Plan Amendment. Chapter 163.3184, Process for adoption of comprehensive plan or plan amendment, define the sequential process for transmittal, review, and approval of a Comprehensive Plan Amendment. Most relevant to this delineation of process is the definition of "compliance" which is recited for review below: 163.3184 Process for adoption of comprehensive plan or plan amendment.-- N (1) DEFINITIONS.--As used in this section, the term: 0 (b) "In compliance" means consistent with the requirements of ss. 163.3177, when a local 2 government adopts an educational facilities element, 163.3178, 163.3180, 163.3191, and 163.3245, 4- with the state comprehensive plan,with the appropriate strategic regional policy plan, and with chapter 0 9J-5, Florida Administrative Code, where such rule is not inconsistent with this part and with the principles for guiding development in designated areas of critical state concern and with part III of chapter 369, where applicable. Thus, leading through an exhaustive process, the State Land Planning Agency must find a Comprehensive Plan or Plan Amendment in compliance in accordance with the above definition. Process as further defined in the section leads from Local Government Transmittal through review by the State Land Planning Agency and other required local and state government co bodies to a finding of"in compliance"by the State Land Planning Agency. co Review is contemplated and expected to be completed by such agencies as the South Florida Regional Planning Council, whose responsibility it is to review the proposal for consistency with the Strategic Regional Policy Plan. Such review is not therefore, the responsibility of the local government to determine consistency in this regard and will not be addressed herein. Though referenced in the 0 definition of compliance and elsewhere Chapters 163.3177, 163.3191, 163.3245, and 369 will not be reviewed as a compliance matter. Chapter 163.3177 defines required elements in a comprehensive plan. The City has an approved comprehensive plan which must be assumed to have all required elements. Chapter 163.3191 refers to the required Evaluation and Appraisal Report (EAR); a review X of an approved comprehensive plan required of the City every seven years. The City is not subject to an EAR at this juncture and therefore is not relevant as a criterion to the review herein. Finally, W Chapter 163.3245 refers to the development of an optional sector plan. This optional element of an approved comprehensive plan was not adopted by the City and therefore will not be used as a criterion for review in this proposed FLUM amendment. Chapter 369 refers to invasive aquatic plant control and the Wekiva River area and similarly will not be the subject of compliance review herein. Packet Pg. 3505 Other pertinent review elements leading to a determination of compliance are found in Chapter 163.3178 Coastal management, Chapter 163.3180 Concurrency and the principals for guiding development in the Florida Keys Area of Critical State Concern. This application for a FLUM amendment will be analyzed against the limited compliance issues found in sections of Chapter 163 F.S. and Chapter 380 F.S. noted immediately above. Relevant sections are provided in EXHIBITS 2, 3, & 4 attached or with website references for your review N Compliance Discussion Relevant criteria promulgated in Chapters 163 and 380 F.S.can be itemized in bullets as follows based on the critical concerns more specifically identified in the City's comprehensive plan: • Natural Resource Protection o Wetlands a o Estuaries o Living marine resources o Beaches/Dunes c o Unique wildlife habitat 2 o Water Quality 4- • Historical Resources 0 • Infrastructure/ Concurrency Management o Wastewater o Stormwater t� o Potable Water o Solid Waste o Transportation co • Affordable Housing • Hazard Mitigation co o CHHA CD cv o Hurricane Evacuation • Ports o Marina Siting r- • Public Use o Shoreline use and Access o Water dependent and independent activity • Land Acquisition w o Conservation �. o CHHA o Public Services These bullet items should be utilized as the focus points for review of the proposed FLUM amendment and for future comprehensive plan amendments. Packet Pg. 3506 SUMMARY This proposed Comprehensive Plan Amendment will add the Workforce-Affordable Housing Initiative to the City's adopted Comprehensive Plan allowing the allocation of up to 300 new affordable residential units identified as "Early Evacuation" Affordable Residential Allocations. ANALYSIS N Natural Resources The City of Marathon Comprehensive Plan places significant emphasis on the protection of its environmental resources while protecting the property rights of its citizens. The proposed amendment through the implementation of the existing Comprehensive Plan and Land Development Regulations and the restriction of the use of habitats such as hammock, salt march and buttonwood, mangroves, and fresh water wetlands, will not further impact natural resources offered protection under the City's regulations. Additionally, through the resolution of the FEMA-FWS lawsuit, but the protection and preservation of endangered animals and their habitat is taken into consideration in issuance of an 0 incidental take permit to FEMA from FWS. See Exhibit 1 —FEMA-FWS documentation 0 Historical and Cultural Resources 0 Elements of the City's Land Development Regulations, Chapter 106, Article 5 & 7 (See Exhibit 2) protect existing historic and cultural resources. No Significant Impact would result from the proposed change. U) t� Infrastructure 9 0 co No Significant Impact would result from the proposed change. co CD Wastewater infrastructure No Significant Impact would result from the proposed change. See Exhibit 3 r_ 0 Stormwater infrastructure The City of Marathon developed an award winning stormwater system simultaneous with the construction of its wastewater system for City owned rights-of-way. Stormwater is otherwise managed on site through the City's stormwater Ordinance (see Exhibit 4). No Significant Impact would result from the proposed change. See Exhibit 4. E Potable Water �t No Significant Impact would result from the proposed change. See Exhibits 5a& b Solid Waste Packet Pg. 3507 No Significant Impact would result from the proposed change. Transportation LOS for U.S. 1 and adjoin streets is well within LOS standards for transportation. No Significant Impact would result from the proposed change. See Exhibit 6 N Affordable Housing The proposed amendment will significantly enhance the City's continuing efforts to enhance affordable housing in the Keys. See Exhibit 7 a& b which elucidate the critical nature of the need for affordable housing. These are documents which were produced before Hurricane Irma which served to underscore the problem with the loss of more than 400 residential structures in the City of Marathon. Hazard Mitigation No Significant Impact would result from the proposed change. 0 2 Coastal High Hazard Areas 0 4- 0 No Significant Impact would result from the proposed change. CD Hurricane Evacuation W c, No Significant Impact would result from the proposed change. All Early Evacuation units (tenants) would be required to evacuate within the first 24 hours of a 48 hour evacuation window. The City's (and County's) obligation is to be prepared to evacuate at 24 hours before the impacts of Tropical co i Storm Force Winds in the Keys. Already, the Emergency Management Departments within the Florida Keys coordinate the evacuation of not only their permanent residents, but the temporary co CD residents visiting the Keys in the short term. Conceptually, adding the "Early Evacuation Residential units to the list of facilities and residential units that leave the Keys in the first 24 hours is relatively simple. Statutorily (380.0552 (9) (a) (2), the City cannot exceed the 24 hour evacuation time for its permanent residents. The Statue, on the other hand, does not define how, the County and 0 municipalities of the Florida Keys accomplishes this statutory axiom. Thus, requiring that some M permanent residents lave early,the City believes, meets the intent of the statutes. Already, Emergency Management officials require that individuals living in low lying areas evacuate early. See Exhibits 8a, b, c, d, & e. Ports—Marina Siting No Significant Impact would result from the proposed change. Public Use—Access to Water No Significant Impact would result from the proposed change. Packet Pg. 3508 Land Acquisition The proposed amendment will utilize existing land acquisition mechanisms to further the purposes of providing affordable housing within the City. Because of the critical nature and need for affordable housing at this time, funding provided to the Monroe County Land Authority and funds provided through the Stewardship Act have been prioritized for the acquisition of lands for affordable housing. In addition, some of the Recovery funds provided through CDBG-DR and similar sources may be utilized for the purchase of such lands. Alternate Compliance Review Criteria Since there are no internal Comprehensive Plan change review criteria available in Chapter 102 Article 6, those that would apply for an LDR text change request (Chapter 102, Article 7) are useful. The basis for the LDR text change criteria are the same as for a Comprehensive Plan change ultimately. Section 102.26(B) of the Land Development Regulations requires that the following standards and criteria be considered for any proposed text amendment. Each criteria and explanation of relevance 0 to this proposed amendment are listed below: 0 A. The need and justification for the change; The City is limited in the number of BPAS allocations allowed within the City of Marathon as provided in Rule 28-18, F.A.C. However, there is an extreme need for affordable housing BPAS allocations both as a reality of the costs of living in the Florida Keys and because of the U) significant impact felt by the affordable housing sector as a result of Hurricane Irma (September 10, 2017). Comprehensive Plan Policy 1-3.5.9, in fact requires that the City"shall work with the State to obtain more residential allocations specifically for affordable housing." co i The need for new affordable housing is overwhelming because of the impacts of the storm and the significant loss of affordable units to Hurricane Irma. co CD N B. The consistency of the proposed amendment with the Comprehensive Plan; and Comprehensive Plan Policy 1-3.5.9, requires that the City "shall work with the State to obtain 0 more residential allocations specifically for affordable housing." The Administrative M Commission's Workforce-Affordable Housing Initiative is the result of the City's efforts to obtain more affordable allocations. C. Whether the proposed change shall further the purposes of the LDRs and other City Codes, regulations and actions designed to implement the Comprehensive Plan. The proposed text amendments furthers the purposes of the LDRs and other City Codes, regulations and actions designed to implement the Comprehensive Plan by providing the mechanism to obtain and implement the Workforce-Affordable Housing Initiative.. CONCLUSION: Packet Pg. 3509 The proposed Amendment is consistent with and furthers the goals of the City of Marathon Comprehensive Plan and Land Development Regulations. RECOMMENDATION: The City Council unanimously voted for approval of this Ordinance in its first hearing on September 11, 2018. This is the second hearing for this Comprehensive Plan amendment. No changes have been made to the Ordinance and the Department of Economic Opportunity has approved the Comprehensive Plan amendment in its Objections, Recommendations, and Comments (ORC)letter dated last week. The Planning Commission heard the item on August 20, 2018 and recommended transmittal to the City Council by unanimous vote. The City Council directed the transmittal of this Ordinance to the State Department f Economic Opportunity on September 11, 2018. The Department of Economic Opportunity has provided a review of the proposed amendment and indicated that it furthers the goals of the Comprehensive Plan consistent with the requirements of the Work Program as adopted by Rule. Similarly, the proposed amendment meets the intent of the Workforce-Affordable Housing Initiative set forth by the Administration Commission. 0 2 0 4- 0 co CD co T_ CD cv r_ 0 LU Packet Pg. 3510 COUNCIL AGENDA STATEMENT ` Meeting Date: October 23, 2018 To: Honorable Mayor and Council Members From: George Garrett, Planning Director Through: Chuck Lindsay, City Manager Agenda Item: Ordinance 2018-09, Amending The City's Comprehensive Plan, Adding Goal 1-4 And Associated Objectives And Policies To Chapter 1, "Future Land Use Element;" And Goal 1- 4 Shall Be Known As The "Workforce-Affordable Housing Initiative" Providing For An Additional 300 Affordable Allocations To An Allocation Pool To Be Identified As The Affordable-Early Evacuation Pool;" And Providing For Severability; Providing For The Repeal Of Conflicting Provisions; Providing For The Transmittal Of This Ordinance To The State Department Of Economic 0) Opportunity; And Providing For An Effective Date. 0 0 RECOMMENDATION• The City Council unanimously voted for approval of this Ordinance in its first hearing on September 11, 2018. This is the second hearing for this Comprehensive Plan amendment. No changes have been U) made to the Ordinance and the Department of Economic Opportunity has approved the Comprehensive et Plan amendment in its Objections, Recommendations, and Comments (ORC)letter dated last week. co i The Planning Commission heard the item on August 20, 2018 and recommended transmittal to the 0 City Council by unanimous vote. The City Council directed the transmittal of this Ordinance to the co co CD State Department of Economic Opportunity on September 11, 2018. The Department of Economic N Opportunity has provided a review of the proposed amendment and indicated that it furthers the goals of the Comprehensive Plan consistent with the requirements of the Work Program as adopted by Rule. Similarly, the proposed amendment meets the intent of the Workforce-Affordable Housing Initiative 0 set forth by the Administration Commission. APPLICANT: City of Marathon REQUEST: Amend City of Marathon Comprehensive Plan by Adding Goal 1-4, concerning the Workforce-Affordable Housing Initiative. E ANALYSIS OF COMPREHENSIVE PLAN CHANGE REQUEST: =currentoLapnrd opment Regulations provide only brief guidance concerning the review of a e Plan Amendment. Packet Pg. 3511 Section 102.19 simply states: Section 102.19. Standards for Review. When considering an application for a Comprehensive Plan Amendment, the review shall include all standards and criteria of Fla. Stat. ch. 163. N Standards in Chapter 163, F.S. offer some additional guidance, but are limited. Pertinent sections of Chapter 163 promulgate process rather than establishing criteria for the development of a proposed Comprehensive Plan Amendment. Chapter 163.3184, Process for adoption of comprehensive plan or plan amendment, define the sequential process for transmittal, review, and approval of a Comprehensive Plan Amendment. Most relevant to this delineation of process is the definition of "compliance" which is recited for review below: 163.3184 Process for adoption of comprehensive plan or plan amendment.-- N (1) DEFINITIONS.--As used in this section, the term: 0 (b) "In compliance" means consistent with the requirements of ss. 163.3177, when a local 2 government adopts an educational facilities element, 163.3178, 163.3180, 163.3191, and 163.3245, 4- with the state comprehensive plan,with the appropriate strategic regional policy plan, and with chapter 0 9J-5, Florida Administrative Code, where such rule is not inconsistent with this part and with the principles for guiding development in designated areas of critical state concern and with part III of chapter 369, where applicable. Thus, leading through an exhaustive process, the State Land Planning Agency must find a Comprehensive Plan or Plan Amendment in compliance in accordance with the above definition. Process as further defined in the section leads from Local Government Transmittal through review by the State Land Planning Agency and other required local and state government co bodies to a finding of"in compliance" by the State Land Planning Agency. co Review is contemplated and expected to be completed by such agencies as the South Florida Regional Planning Council, whose responsibility it is to review the proposal for consistency with the Strategic Regional Policy Plan. Such review is not therefore, the responsibility of the local government to determine consistency in this regard and will not be addressed herein. Though referenced in the 0 definition of compliance and elsewhere Chapters 163.3177, 163.3191, 163.3245, and 369 will not be reviewed as a compliance matter. Chapter 163.3177 defines required elements in a comprehensive plan. The City has an approved comprehensive plan which must be assumed to have all required elements. Chapter 163.3191 refers to the required Evaluation and Appraisal Report (EAR); a review X of an approved comprehensive plan required of the City every seven years. The City is not subject to an EAR at this juncture and therefore is not relevant as a criterion to the review herein. Finally, W Chapter 163.3245 refers to the development of an optional sector plan. This optional element of an approved comprehensive plan was not adopted by the City and therefore will not be used as a criterion for review in this proposed FLUM amendment. Chapter 369 refers to invasive aquatic plant control and the Wekiva River area and similarly will not be the subject of compliance review herein. Packet Pg. 3512 Other pertinent review elements leading to a determination of compliance are found in Chapter 163.3178 Coastal management, Chapter 163.3180 Concurrency and the principals for guiding development in the Florida Keys Area of Critical State Concern. This application for a FLUM amendment will be analyzed against the limited compliance issues found in sections of Chapter 163 F.S. and Chapter 380 F.S. noted immediately above. Relevant sections are provided in EXHIBITS 2, 3, & 4 attached or with website references for your review N Compliance Discussion Relevant criteria promulgated in Chapters 163 and 380 F.S.can be itemized in bullets as follows based on the critical concerns more specifically identified in the City's comprehensive plan: • Natural Resource Protection o Wetlands a o Estuaries o Living marine resources o Beaches/Dunes c o Unique wildlife habitat 2 o Water Quality 4- • Historical Resources 0 • Infrastructure/ Concurrency Management o Wastewater o Stormwater t� o Potable Water o Solid Waste o Transportation co • Affordable Housing • Hazard Mitigation co o CHHA CD N o Hurricane Evacuation • Ports o Marina Siting r- • Public Use o Shoreline use and Access o Water dependent and independent activity • Land Acquisition w o Conservation �. o CHHA o Public Services These bullet items should be utilized as the focus points for review of the proposed FLUM amendment and for future comprehensive plan amendments. Packet Pg. 3513 SUMMARY This proposed Comprehensive Plan Amendment will add the Workforce-Affordable Housing Initiative to the City's adopted Comprehensive Plan allowing the allocation of up to 300 new affordable residential units identified as "Early Evacuation" Affordable Residential Allocations. ANALYSIS N Natural Resources The City of Marathon Comprehensive Plan places significant emphasis on the protection of its environmental resources while protecting the property rights of its citizens. The proposed amendment through the implementation of the existing Comprehensive Plan and Land Development Regulations will not further impact natural resources offered protection under the City's regulations. Historical and Cultural Resources 0 No Significant Impact would result from the proposed change. 0 Infrastructure 0 No Significant Impact would result from the proposed change. Wastewater infrastructure t) t� No Significant Impact would result from the proposed change. CO i Stormwater infrastructure CO CD No Significant Impact would result from the proposed change. Potable Water r_ 0 No Significant Impact would result from the proposed change. Solid Waste No Significant Impact would result from the proposed change. Transportation No Significant Impact would result from the proposed change. Affordable Housing The proposed amendment will significantly enhance the City's continuing efforts to enhance affordable housing in the Keys. Packet Pg. 3514 Hazard Mitigation No Significant Impact would result from the proposed change. Coastal High Hazard Areas N No Significant Impact would result from the proposed change. Hurricane Evacuation No Significant Impact would result from the proposed change. All Early Evacuation units (tenants) would be required to evacuate within the first 24 hours of a 48 hour evacuation window. The City's (and County) obligation is to be prepared to evacuate at 24 hours before the impacts of Tropical Storm Force Winds in the Keys. Ports—Marina Siting c 2 No Significant Impact would result from the proposed change. 0 Public Use—Access to Water c CD No Significant Impact would result from the proposed change. t� Land Acquisition CO The proposed amendment will utilize existing land acquisition mechanisms to further the purposes of providing affordable housing within the City. CO CD Alternate Compliance Review Criteria Since there are no internal Comprehensive Plan change review criteria available in Chapter 102 Article 6, those that would apply for an LDR text change request(Chapter 102, Article 7) are useful. 0 The basis for the LDR text change criteria are the same as for a Comprehensive Plan change ultimately. Section 102.26(B) of the Land Development Regulations requires that the following standards and criteria be considered for any proposed text amendment. Each criteria and explanation of relevance to this proposed amendment are listed below: a� A. The need and justification for the change; The City is limited in the number of BPAS allocations allowed within the City of Marathon as provided in Rule 28-18, F.A.C. However, there is an extreme need for affordable housing BPAS allocations both as a reality of the costs of living in the Florida Keys and because of the significant impact felt by the affordable housing sector as a result of Hurricane Irma (September 10, 2017). Comprehensive Plan Policy 1-3.5.9, in fact requires that the City"shall Packet Pg. 3515 work with the State to obtain more residential allocations specifically for affordable housing." The need for new affordable housing is overwhelming because of the impacts of the storm and the significant loss of affordable units to Hurricane Irma. B. The consistency of the proposed amendment with the Comprehensive Plan; and Comprehensive Plan Policy 1-3.5.9, requires that the City "shall work with the State to obtain y more residential allocations specifically for affordable housing." The Administrative r_ Commission's Workforce-Affordable Housing Initiative is the result of the City's efforts to r_ obtain more affordable allocations. C. Whether the proposed change shall further the purposes of the LDRs and other City Codes, regulations and actions designed to implement the Comprehensive Plan. The proposed text amendments furthers the purposes of the LDRs and other City Codes, regulations and actions designed to implement the Comprehensive Plan by providing the mechanism to obtain and implement the Workforce-Affordable Housing Initiative.. 0 2 0 4- CONCLUSION: 0 The proposed Amendment is consistent with and furthers the goals of the City of Marathon CD Comprehensive Plan and Land Development Regulations. RECOMMENDATION: U) The City Council unanimously voted for approval of this Ordinance in its first hearing on September 11, 2018. This is the second hearing for this Comprehensive Plan amendment. No changes have been made to the Ordinance and the Department of Economic Opportunity has approved the Comprehensive co i Plan amendment in its Objections, Recommendations, and Comments (ORC)letter dated last week. co CD The Planning Commission heard the item on August 20, 2018 and recommended transmittal to the City Council by unanimous vote. The City Council directed the transmittal of this Ordinance to the State Department f Economic Opportunity on September 11, 2018. The Department of Economic Opportunity has provided a review of the proposed amendment and indicated that it furthers the goals 0 of the Comprehensive Plan consistent with the requirements of the Work Program as adopted by Rule. M Similarly, the proposed amendment meets the intent of the Workforce-Affordable Housing Initiative set forth by the Administration Commission. LU Packet Pg. 3516 Sponsored By: Lindsey Planning Commission Public Hearing Date: August 20, 2018 City Council Public Hearing Date: September 11, 2018 October 23, 2018 Enactment Date: October 23, 2018 N CITY OF MARATHON, FLORIDA ORDINANCE 2018-09 AN ORDINANCE OF THE CITY OF MARATHON, FLORIDA, AMENDING THE CITY'S COMPREHENSIVE PLAN, ADDING GOAL 1- 4 AND ASSOCIATED OBJECTIVES AND POLICIES TO CHAPTER 1, "FUTURE LAND USE ELEMENT;" AND GOAL 1-4 SHALL BE KNOWN AS THE "WORKFORCE-AFFORDABLE HOUSING INITIATIVE" PROVIDING FOR AN ADDITIONAL 300 AFFORDABLE ALLOCATIONS TO AN ALLOCATION POOL TO BE IDENTIFIED AS THE AFFORDABLE-EARLY EVACUATION POOL;" AND PROVIDING le FOR SEVERABILITY; PROVIDING FOR THE REPEAL OF CONFLICTING PROVISIONS; PROVIDING FOR THE TRANSMITTAL OF THIS ORDINANCE TO THE STATE DEPARTMENT OFCD ECONOMIC OPPORTUNITY AFTER FINAL ADOPTION BY THE CITY COUNCIL; AND PROVIDING FOR AN EFFECTIVE. WHEREAS, the City of Marathon (the "City") has adopted a Comprehensive Plan which has been found to be in compliance by the State Department of Community Affairs ("DCA"), co i pursuant to Chapter 163, Florida Statutes; and co CD WHEREAS, the City is located within the Florida Keys Area of Critical State Concern (the"FKACSC"), as established pursuant to Chapter 380, Florida Statutes; and WHEREAS, pursuant to the provisions of Chapters, 163, 166 and 380 Florida Statutes, 0 the City of Marathon, Florida (the "City") proposes to amend Chapter 1, "Future Land Use Element," of the Comprehensive Plan; and WHEREAS, adding Goal 1-4, "Workforce-Affordable Housing Initiative," and associated Objective, and Policies which further the goals, objectives and policies of the City Comprehensive Plan (the "Plan"); and WHEREAS, pursuant to Chapter 163, Florida Statutes, and Sections 101.02 and 102.22 of the Code, the Planning Commission sitting as the Local Planning Agency publicly considered the proposed text amendment on August 20, 2018 at a duly noticed public hearing, and has recommended approval of the proposed Map amendment to the City Council; and Packet Pg. 3517 WHEREAS, the City Council reviewed and approved transmittal of this Ordinance to the Florida Department of Economic Opportunity and other required agency reviewers on September 11, 2018; and WHEREAS, the State Department of Economic Opportunity returned a favorable Objections, Recommendations, and Comments (ORC) Report during the week of October, 14, 2018 indicating that the City could adopt this proposed Ordinance as written; and WHEREAS, pursuant to the same legislative provision, the City Council accepted the ORC Report, considered the recommendation of the Planning Commission, accepted additional public input, and deliberated on the proposed Policy amendment on October 23, 2018 at a duly noticed public hearing, and recommended that the amendment be transmitted to the Florida Department of Economic Opportunity as formally adopted by the City; and WHEREAS, the City Council finds that approval of the proposed Policy amendments are in the best interest of the City and complies with applicable laws and is consistent with the South Florida Regional Plan, the State Plan, Chapter 163, Florida Statutes, the principles for 0 guiding development in the Florida Keys Area of Critical State Concern, the goals, objectives, and policies of the Plan, Chapter 102, Article 6 of the Code, and promotes and protects the 0 health, safety and welfare of the residents of the City; and 0 WHEREAS, the City Council desires to approve the proposed amendment pursuant to Chapter 163.3184 F.S., in accordance with State law, c, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF MARATHON, FLORIDA THAT 9 co CD c+r-iket„-at .i, = deletion bold underline= addition co CD SECTION 1. The above recitals are true, correct, and incorporated herein by this reference. 0 SECTION 2. Amend the Comprehensive Plan, Chapter 1, Future Land Use Element, to include Goal 1-4 and related objective and policies: Goal 1-4 Workforce-Affordable Housing Initiative. To support the City of Marathon's workforce by alleviating constraints on affordable housing, the City shall participate in the Workforce-Affordable Housing Initiative, as E approved during the June 13, 2018 meeting of the Administration Commission. The Workforce-Affordable Housing Initiative will require new construction or repurposed structures that participates to commit to evacuating renters in the 48 to 24-hour window of evacuation. Obiective 1-4.1 Provide Workforce-Affordable Housing Building Permit Allocations. 'Additions to existing text are shown by underline;deletions are shown as Packet Pg. 3518 Pursuant to Policy 1-3.5.9, the City has worked with the State Department of Economic Opportunity to "obtain more residential allocations specifically for affordable housing." The City thereby, shall establish a new limited category to be known as the "Affordable - Early Evacuation Pool" which will provide 300 workforce-affordable building permit allocations for the Workforce-Affordable Housing Initiative. These allocations are in addition to the maximum allocations N identified in Rules 28-18, Florida Administrative Code. The City shall be responsible for the management, distribution, and enforcement of requirements associated with the Early Evacuation Affordable allocations. The City of Marathon shall ensure adherence to these requirements through implementation of the policies of this objective. Policy 1-4.1.1—Distribution of Workforce-Affordable Housing Allocations. Workforce-affordable housing allocations shall be distributed at any time through adequate public notice and hearing procedures pursuant to Chapter c 102, Articles 1 through 4 of the City's Land Development Regulations and in accordance with the BPAS ranking procedures established in Chapter 107, 0 Article 1, `Building Permit Allocation System (BPAS). r9 Policy 1-4.1.2 - Specific Standards and Requirements for Workforce- Affordable Housing. U) Affordable-Early Evacuation residential units under this program shall: a. be multifamily structures; b. be rental units; C. require, at a minimum, adherence to the latest edition of the co co Florida Building Code as published by the Florida Building N Commission; d. not be placed in the V-Zone or within the Coastal Barrier Resource Systems; c e. require on-site property management; f. comply with applicable habitat and other locational criteria and densities for multifamily affordable housing units; g. shall not be placed in any habitat defined as mangroves, saltmarsh LU & buttonwood, hardwood hammock, or fresh water wetlands (disturbed categories excepted); h. incorporate sustainable and resilient design principles into the overall site design; i. ensure accessibility to employment centers and amenities; j. require deed-restrictions ensuring: (i) the property remains workforce-affordable housing in perpetuity; 'Additions to existing text are shown by underline;deletions are shown as Packet Pg. 3519 (ii) tenants evacuate during the period in which transient units are required to evacuate; (iii) rental agreements contain a separate disclosure requiring renters to acknowledge that failure to adhere to the evacuation requirement could result in severe penalties, including eviction,to the resident; (iv) onsite property managers are formally trained in N evacuation procedures. Policy 1-4.1.3—Evacuation exemptions. Persons living in workforce-affordable housing who are exempt from evacuation requirements of Policy 1.1.2.i.60 include all first responders, correction officers, health care professionals, or other first-response workers required to remain during an emergency, provided the person claiming exemption under this policy has faithfully certified their status with property management. 0 2 Policy 1-4.1.4—ADA Compliance. 0 0 All workforce-affordable housing developments must demonstrate CD compliance with all applicable federal standards for accessibility for persons with disabilities. Policy 1-4.1.5 -Evaluation and Report. The City of Marathon shall provide the state land planning agency with an co annual report on the progress and implementation of the Workforce- i Affordable Housing Initiative. Reported information shall include co documentation of the number of workforce-affordable units built, occupancy rates, and compliance with the requirement to evacuate the units in the Phase I evacuation. Said report shall be provided to the State in a timely 0 manner such that the State may include the information in the required Annual Report to the Governor and Cabinet on the City of Marathon progress toward completion of its Work Program pursuant to Goal 9-1 of the City's Comprehensive Plan and Rule 28-18, F.A.C. LU SECTION 3. The provisions of this Ordinance are declared to be severable and if any section, sentence, clause of phrase of this Ordinance shall for any reason be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses, and phrases of this Ordinance but they shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. SECTION 4. The provisions of this Ordinance constitute a"Comprehensive Plan amendment' as defined by State law. Accordingly, the City Clerk is authorized to forward a copy of this Ordinance to the DCA and other state agencies for review and approval pursuant to 'Additions to existing text are shown by underline;deletions are shown as Packet Pg. 3520 Sections 380.05(6) and (11), Florida Statutes. SECTION 5.This Ordinance shall be effective immediately upon approval by DCA pursuant to Chapters 163 and 380, Florida Statutes. SECTION 6. This Ordinance shall be effective immediately upon approval by the Department of Economic Opportunity pursuant to Chapters 163 and 380, Florida Statutes. ENACTED BY THE CITY COUNCIL OF THE CITY OF MARATHON, FLORIDA, THIS 23RD DAY OF OCTOBER, 2018. THE CITY OF MARATHON, FLORIDA 0 Michelle Coldiron, Mayor 2 0 4- AYES: NOES: CD ABSENT: ABSTAIN: ATTEST: co CD co T- CD Diane Clavier, City Clerk r- APPROVED AS TO FORM AND LEGALITY FOR THE USE c AND RELIANCE OF THE CITY OF MARATHON,FLORIDA ONLY: David Migut, City Attorney E 'Additions to existing text are shown by underline;deletions are shown as Packet Pg. 3521 Sponsored By: Lindsey Planning Commission ission ublic Hearing Date: august 20, 201 City Council cil Public Hearing in Late: September 11201 October 23, 201 Enact e t ate-, October 23, 2018 CITE' OF MA-RATHON, FLORIDA ORDINANCE 2018-09 AN ORDINANCE OF THE CITY OF MARATHON, LO I . : AMENDING THE CITY'S COMPREHENSIVE PLAN, ADDING GOAL - AND ASSOCIATED OBJECTIVES AND II POLICIES TO CHAPTER I, a "FUTURE LAND USE ELEMENT;" AND GOALI-4 StIALL III KNOWN A 'THE "WORKFORCE-AFFORDABLE HOUSING INITIATIVE" � PROVIDING FOR A IN ADDITIONAL 300 AFFORDABLE ALLOCATIONS TO AN ALLOCATION POOL TO III IDENTIFIED 0 TEED AFFORDABLE-EARLY EVACUATION POOL;" AND PROVIDING l 1�� E ABIL�IT ' PROVIDING FOR TIII�. I I4P A.L,a OF 2 F CONFLICTING PROVISIONS; PROVIDING FORTHETRANSMITTAL 4- OF THIS l I CI TO THE STATE DEPARTMENT OF ECONOMIC IC OPPORTUNITY AFTER R FINAL ADOPTION BY THE CITY COUNCIL; AND PROVIDING FOR A I1,FFECTI E. WHEREAS. the City of Marathon (the `*City") has adopted a Comprehensive flan which has been found to be in crstrtplian,ce by the :Stag Department of Community ,`affairs (` I)C A"), pursuant to C:'haptc:r 1 Ci). Florida Statutes: and CD i WHEREAS. the City is located within the Florida Keys Area of Critical State; Concern (the K_A.C' C") as established pursuant to Chapter 3 80, Florida Statutes, and N WHEREAS. pursuant to the provisions of Chapters. 163. 166 and 80 Florida Statutes. the City of Marathon. Florida (the "C"ivy") proposes to amend Chapter 1, "Future Land Use Elernent," of the Cornpreliens]ve Ilan, and WHEREAS, adding Cic)al 1- , "Wor force-Affordable. Housing Initiative," and associated Objective, and. Policies which further the goals, objectives and policies of the City Comprehensive flan (the -Plan-); and WHEREAS, pursuant to Chapter 163. fi7or ida Sialr.les, and Sections 101.02 and 102.22 of the Code. the Planning Commission sitting as the Local Planning Agency publicly` considered the: proposed test amendment on August 20. 2018 at a duly noticed public hearing. and has recommended approval of the proposed iMap amendment to the City Council: and Packet Pg. 3522 WHEREAS, the City Council reviewed and approved transmittal of this Ordinance to the FloridaDepartment of~Economic Opportunity and other required agency° reviewers on September It, 2018; and WI-IEREAS, the State Department. of Economic Opportunity returned a favorable Objections, Recommendations, and Cowan-cents {ORC") Report during the -vveek of October, 14, 2018 indicating that the City could adopt this proposed Ordinance as written: and WHEREAS, pursuant to the same e legislative, provision, the City Council accepted the ORC l epost., considered the recommendation of the Planaaing Commission, accepted additional public input, and deliberated on the proposed Policy amendment on October 2), `018 at a. duly° noticed public hearing , and recommended that the amendment be transmitted to the Florida Department ofEconomic Opportunity as for-malty adopted by the City; and WHEREAS,S, the City Council finds that approval of the proposed Policy amendments are in the best interest of the City and complies with applicable laws and is consistent with the � South Florida Regional flan. the State Ilan, Chapter 1 Ci3- f7orida StuPaues. the principles for guiding?; development in the.: Florida Keys Area of Critical State Concern, the goals. o jectir es, and policies of the. Plan, Chapter 102, Article 6 of the Code. and promotes and protects the health. safety and welfare of the residents ofthe City, and 0) 0 4- WHEREAS. the City Council desires to approve the proposed amendment pursuant to Chapter 1 b-3.3a 184 I`.S., in accordance with State law. r9 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL CIS THE co c, CITY OF MAILATHON, FLORIDATHAT St1ilea-t- #1i deletion bold underline addition I SECTION I. The above recitals are true;,: correct_ and incorporated herein by this reference.. N SI:<C.'TI .. Aniend the Comprehensive Plan, Chapter 1. Future Tassel (Ilse Element. to include. Goal 1- - and related objective and policies: c Coal I-4 ror force- ffoi-dable Housing Initiative. To supVort the C3 it ofMarathon's woi-kforce by alleviating constraints on affordable ousin tl a City shall artici ite in the 'ork�force- ffordable Housing, Initiative as a s roved dui-in the Jun 1 2018 eetin of the administration Commission. The Workforce-AffordableHousing,_Initiative will re wire new construction or re ur. osed structures that partigiggLelto commit to evacuating renters in the 48 to mhou _window of evacuation. Objective 1- ..1 Provide Workforce-Affordable Housigg Building Permit Allocations., ddiIions to exisktng text are s1bM%11 h Rirt€;lCtaMCz &l0100S cVQ,ho%kn a,,wok-efl-ekmgh Packet Pg. 3a23 Pursuant to folic l- < . the City has worked with the State lie artffient of Economic Opj2ortunih, to "obtain more residential allocations s ecificalLy for affordable housing, ' T°he City thereby shall establish a new limited category to be known as the "Affordable - Farb' Evacuation fool" which will proiide 300 ivorlcforce-affordable building per it allocations for the Workforce-Affordable l oaasira ° Initiative. These allocations are in addition to the maximum allocations identified in hales -1. Florida Administrative Code. The 'its shall be responsible for the management distribution and enforcement of re aaire ants associated with the Early Evacuation Affordable allocations. The it_v e ' Marathon shall ensure adherence to these a•e aaireiaacnts through implementation ol`the policies of this objective. - Policy f- .1.1 --- Distribution of Workforce-Affordable Housingallocations. � 'ork,force-affordable hoaasin allocations shall be distributed at any tiraae a through adcA gate _ aablie notice and hearing procedures pursuant to Chaptei 102, Articles 1 through of the Citys Lased Development ment Regulations ulations and in accordance with the PA raralcin rocedures established, in :'ha ter 107 c ww !article 2 l9 ``l raildira„t leer rt Allocation w° terw� l �;� )d � - 0 4- Policy 1- .1. - Specific tandards and Ike. arireraaents forWorkforce- Affordable Housing, CD affordable l:"arlv Evacuation residential units sander dais ro man shall. 12 a. be multifamily structures, la. be rental units c. re wire at as minima adherence to the latest edition of the Co Florida Building 'ode as published by the Florida Building �l C€raaiaaaissacaar Co d. not be placed in the a Zone or within the Coastal Barrier Resource ource w st rags cv e. require on-site ro erty management; f. coiatwly with applicable habitat and other locational criteria and densities for multifaraailw affordable housing aarrits c g, shall not be laced in any habitat defused aas an roves saltaaaarsh buttonwoocl hardwoo haaa mocl or fresh water wetlands Ldisturbed categories excepted); h. incur orate sustainable and resilient design principles into the overall site desity � i. ensure accessibility to employment centers and amenities j. re uii e_deed-restrictions ensuring: (i) the rea erty remains workforce-affoi-daable housing in tacrraetraitw' ii,i tenants evacuate lorries th , erTiod in which transient awaits ,arc reciuired to evacuate \ddItI o[Is to oirman-texi are.;ho"n l» nndcrltnc deIetioat.+are ,Ii o,n a, ell Packet Pg. 3524 (ili) rental_agregiments contain a setaarate disclosure rcclaairin renters to aackaacrwwled e that: failure to adhere to the evacuation recjaairement could result in severe peaaalties, includin evictiaan to the reside t (iv) naasite ro ert t manatgers are formally trained is evacuation )rocedu es. Poliey 1-4.1 3 — Evacuation e eaaaaaticaaas, N Pei-sons liw in leaworkforce-affordable housing yho are exeMpt from _evacuation requirements of Iwcalac 1 1 2 a. ii) include all lrst a°esMders, correction officers,_health care p!:gfessionals car rather first-res a2gl wwaarkers re uired to remain during an e er eaacw L)aaawiale the ear n cl iaaaiaw_ exemgjj2g as acler this licw hags "aaitl fall ccrtifi t la° tataa r°ith rca crtw° > mana Lenient. Policy 1- .1. — ADA Cogipliance. 0 All workforce-affordable housing develo n �ients must demonstrate compliance ww�itla call ate li aal�le federal sta�_r�clarcl 1'�a• accessibility fa�a taeasaaaas 2 with disabilities. 0 P21ic.y .1 1.. Evaluation and Report. The Citv of Marathon shall ro-s isle the: state laaaacl planning Ag ency with all annual report can the protyress and implementation f theWorkforce- Affordable klousin� Initiative. Ike acartecl iaa caraaaaatican abseil inclaacle documentation of the number of workforce-affordable units built Deal ;anc r co rates, andcompliance with the rectaairement to evacuate the units in the i Phase I evacuation. Said retwcart shall be provided to the State in a timely co manner such that the Mate a aav include the information in the -required Annual nual Report to the Governor and Cabinet on the City of Marathon o ress toward completion of its Work lwro rang paarsuant to Goal -1 of the C `ity's Comprehensive Plan and hale 2 -1 , .. a "". c SECTION 3. ..le.he provisions of this Ordinance are declared to be severable and if any section. sentence, clause cat'phrase of this Ordinance shall for any reason be held to be invalid or unconstitutional„ such decision shall not affect the validity ol`the remaining sections- sentences, clauses, and phrases of this Ordinance but they shall remain in e f`ect, it being the legislative intent that: this Ordinance shall stand notwithstanding the invalidity of'any part. SECTION 4. The provisions ofthis Ordinance constitute a --Comprehensive Plan amendment- as defined by State law. Accordingly, the City C"lcrk is authorized to forward a copy of this Ordinance to the DCA and rather state agencies ices- review and approval pursuant to Sections 380.05(6) and (1 l ), Florida as Statutes. 'Addilikiris to cxr:,t ng tu,rt,ire sloown bN undc°rhne.deli jons,are Jtfrwi a,tm4ka8firouN11 Packet Pg. 3525 SECTION .This Ordinance shall be etT cove immediately upon approval by I CA pursuant to Chapters rs 1 3 and 380, F'lorida Statutes. SECTION 6. '11 is Ordinance shall be effective immediately upon approval by the Department of l"ctanomic Opportunity pursuant to Chapters 1 3 and 386, Florida Statutes. ENAC"I'ED BY THE CITY COUNCIL OF THE CITY OF MARATHON, FLORIDA, THIS 23RD DAY OF OCT ITEI , 2018. N THE CITY OF MARATHON, FLORIDA Michelle Col iron, Mayor � A YF"S: Zieg, Cook, Senmartin, f artUS, Coldiron NOES: None ABSFNT: None 2 0 ABSTAIN: None 4— co pa+Lki� .- �- Diane Clavier, CiI' erkco I3ROVED AS TO FORM AND LEGALITY FOR H USE CD CD AN'D RELIANCEOFTHE CITY OF MARATHON, FLORIDA ONLY: DaN:.ic 1igut' City` .` ttorney LU Additions to-cxr tusag[era,are sijONvrt I:. aari&T Ile,dt-Jerions are sIiwx n as sf4kohvotQ gar Packet Pg. 3526 Q.3.j THEST e4a d THE CITY OF KEY WEST CITY CLERK'S OFFICE ........ Post Office Box 1409 Ke L West,FL 33041-1409(305)809-3831 E-mail:csm�th(e cisyoflce nest-fl. ov SENT VIA US CERTIFIED MAIL: 7018 0680 00018332 March 12, 2019 DEO-Bureau of Comprehensive Planning Ray Eubanks,State Land Planning Agency Caldwell Building 107 E.Madison MSC160 Tallahassee,FL 32399-4120 c U c 4- Re: An Ordinance of the City of Key West, Florida, amending the City's Comprehensive Plan, adding Objective 1-1.17 and associated policies to Chapter 1, "Future Land Use Element"; Objective 1-1.17 shall be known as the "Workforce-Affordable Housing Initiative" W providing for an additional 300 affordable allocations to an allocation pool to be identified as the "Affordable-Early Evacuation Pool", pursuant to Chapter 90, Article VI, Division 3; Providing for severability; Providing for repeal of inconsistent provisions; Providing for co inclusion into the City of Key West Comprehensive Plan; Providing for an effective date. Pursuant to Chapter 163.3184(4), Florida Statutes, the City of Key West City Commission, acting within the jurisdiction of the Florida Keys Area of Critical State Concern (designated pursuant to 08 Section 380.05, F.S.), hereby transmits one (1) hard copy and two (2) compact discs of a proposed amendment to the Comprehensive Land Use Plan. This amendment is subject to State Coordinated Review Process, Section 163.3184(4), Florida Statutes, and the City requests the State Land Planning Agency to formally review the proposed Comprehensive Plan amendment. This amendment was heard and adopted on 2"d reading at a regular meeting of the City Commission on March 5, 2019 under Ordinance No. 19-06. Copies of the entire amendment package are also being provided to the Florida Department of Environmental Protection, Florida Department of Transportation and South Florida Water Management District, Florida Department of Economic Opportunity. Key to tfie Carr66ean—aveacage yearly tenilmiattare 77 °Tafiivnreit. Packet Pg. 3527 Q.3.j THE CITY OF KEY WEST CITY CLERK'S OFFICE Post Office Box 1409 Key West,FL 33041-1409(305)809-3831;E-mail:csmith@cityofkeywest-fl.gov N Amendment Name/Description: Key West Ordinance No. 19-06 An Ordinance of the City of Key West, Florida, amending the City's Comprehensive Plan, adding Objective 1-1.17 and associated policies to Chapter 1, "Future Land Use Element"; Objective 1-1.17 shall be known as the "Workforce-Affordable Housing Initiative" providing for an additional 300 affordable allocations to an allocation pool to be identified as the "Affordable-Early Evacuation Pool", pursuant to Chapter 90, Article VI, Division 3; Providing for severability; Providing for repeal of inconsistent provisions; Providing for inclusion into the City of Key West Comprehensive Plan; Providing for an effective date. Thank you in advance for your timely review of these materials. Should you have any questions about the proposed Comprehensive Plan Amendment Ordinance, please contact Patrick Wright, Director of Planning at(305) 809-3778 and p right _cityofke est-fl.gov. Sincerely, Co eAVLdi J41�� CD Cheryl Smith, MMC, CPM City Clerk Enc CS/sph LU Cc: Plan Review, Department of Environmental Protection Kenneth Jeffries, Florida Department of Transportation Terry Manning, South Florida Water Management District Ray Eubanks, Department of Economic Opportunity Patrick Wright, Director of Planning, City of Key West Ordinance 19-06 Comp Plan Key to tfie Cari66ean —average ymrfjr temperature 77 °Ta(t.7er7fieit. Packet Pg. 3528 Q.3.j ORDINANCE ® f9-06 WEST,AN ORDINANCE OF THE CITY OF KEY FLORIDA, AMENDING THE CITY'S PLAN, ADDING OBJECTIVE 1-1.17 AND ASSOCIATED POLICIES TO CHAPTER T "FUTURE ELEMENT"; OBJECTIVE _ 7 SHALL BE KNOWN AS THE "WORKFORCE-AFFORDABLE INITIATIVE" PROVIDING FOR AN ADDITIONAL 300 AFFORDABLE ALLOCATIONS TO AN ALLOCATION POOL TO BE IDENTIFIED AS THE "AFFORDABLE- > EARLY EVACUATION POOL", PURSUANT TO CHAPTER ? ARTICLE T DIVISION 4 SEVERABILITY PROVIDING FOR PROVISIONS;PROVIDING FOR REPEAL OF INCONSISTENT PLAN; PROVIDING FOR INCLUSION INTO THE CITY OF KEY WEST 0 COMPREHENSIVE EFFECTIVE DATE. AND PROVIDING FOR AN 0 the City of Key West (the "City") has adopted a Comprehensive which has been found to be in compliance by the State Department of Community Affairs (" CA"),pursuant to Chapter 16 , Florida Statutes;and co e City is located within the Floridaeys Area of Critical State Concern (the" ")as established su t to Chapter 30, Florida Statutes;aild pursuant to the provisions of Chapters 163, 166, and 380 of the Florida State Statutes, the City of KeyWest, Florida (the "City") proposes to amend Chapter 1, "Future Land UseElement,"of the ComprehensivePlan;and W WHEREAS, adding Objective 1-1.17 "Workforce-Affordable Housing Initiative" and associated policies, will further the goals, objectives, and policies of the City Comprehensive Plan;and Pagel of 5 Packet Pg. 3529 Q.3.j NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF KEY WEST, FLORIDA: The Comprehensive Plan is hereby amended as follows*: OBJECTIVE 1-1.17: WORKFORCE-AFFORDABLE HOUSING INITIATIVE. To support the City of Key West's workforce by alleviating constraints on affordable housin€ the City shall--p artici pate in the Workforce-Affordable Housing: Initiative, as approved during the June 13. 2018 meeting of the Florida Administration Commission The Workforce-Affordable c 2 Housing Initiative will require new construction that particil ates to commit to evacuating tenants 4- in the Phase I clearance window of evacuation. The City. thereby, shall establish a new limited CD CD category to be known as the "Affordable — Early Evacuation Pool" which will rovide 300 W U workforce-affordable building permit allocations for the Workforce-Affordable Housing Initiative as well as any additional allocations which mav be authorized by the Florida cCD i Administration Commission or transferred to Kea West that are not acce ted_by_other Florida Keys municipalities or Monroe County. _These allocations are in addition to the building permit 2 allocations identified in Ob ective 1-1 16 The Cite shall be responsible for the management � distribution. and enforcement of requirements associated with the Early Evacuation Affordable allocations. The City of Key West shall ensure adherence to these requirements through,., iMlementation of the policies of this objective. 03 * (Coding: Added language is underlined; deleted language is strruek th__ugh at first reading. Added language is double _�_.._i_ underlined and a_ib _ _____._ through at second reading. ) Page 2 of 5 Packet Pg. 3530 Q.3.j Policy 1-1.17.1: Distribution of_Workforce-Affordable Housinj Allocations. Workforce- Affordable Housing allocations shall be available for allocation on a first-come first-served basis and distributed at any time following adequate public notice and hearing procedures pursuant to Chapter 108 of the Cit 's Land Development-Re 1ations. In the event applications received exceed the allocations authorized herein, the competing applications shall be ranked in accordance with the BPAS ranking procedures in Chapter 108. Section 997 c . Polio° 1-1.17.2: Specific Standards and Re uirements for Workforce-Affordable Housin Affordable-Earle Evacuation residential units built under this program shall: a. be multiple-family structures:. o 2 b. _ be rental units; 4- C. require. at a minimum, adherence to the latest edition of the Florida Buildin o Code as published by the Florida Building Commission; c, d. require on-site property management: e. comply with applicable habitat and other locational criteria and densities for co CD multiple-family affordable housinu,units., f incorporate resilient deskni principles into the overall site design.. 2 g ensure accessibility to eml loyinent centers and amenities: h. require deed-restrictions ensuring: t i) the roPea y remains workforce-affordable housing in per vetui np tenants evacuate during the Phase I evacuationperiod• 03 m rental agreements contain a separate disclosure reguiring tenants to acknowledge that failure to adhere to the evacuation requirement could result in severe penalties. including eviction, to the resident: Page 3 of 5 Packet Pg. 3531 Q.3.j Police 1-1.17.3: Evacuation exem tions. Persons livin in workforce-affordable housing who are exem pt from evacuation requirements of Pohc ° 1-1 17 2 h ii includefirst re§pders, correctional officers, healthcare 13rofessionals, or other first-responder workers required to remain in the lower key; during an emergency _evacuation. .provided the 12erson claiming exemtion under thisolic has faithfull °certified their status with ro.ertv management. Polio= 1-1.17.4: ADA Compliance. All workforce-affordable housim developments must demonstrate compliance with all alicable federal standards for accessibility forersons with disabilities. Policy -1.17. : Evaluation apd Report. The City of Key West shall -irovi e the state land 0 planningagency with an annual re)orten the progress and_implementation. of the Workforce- 4- Afford able Dosing tiativem Re orted info ation shill_ elude documentationof e number CD CD ofworkforce-affordable units built. occu c rarates, and compliance with the reqRgqp1gpLLo W U evacuate the units in the Phase I evacuation. U co Section 2. If any section, provision, clause, phrase, or application of this Ordinance is 1 held invalid or unconstitutional for any reason by any court of competent jurisdiction, the r- remaining provision of this Ordinance shall be deemed severable therefrom and shall be constructed as reasonable and necessary to achieve the lawful purposes of this Ordinance. Section 3. All Ordinances or parts of Ordinances of said City in conflict with the provisions of this Ordinance are hereby superseded to the extent of such conflict. Section 4. This Ordinance shall go into effect immediately upon its passage and adoption and authentication by the signature of the presiding officer and the Clerk of the Commission and approval by the Florida Department of Economic Opportunity, pursuant to Chapter 380, Florida Statutes. Page 4 of 5 Packet Pg. 3532 Q.3.j Read and passed by the City Commission at a regular meeting held this 2ni-h day of November 2018. wwww....... Read and passed on final reading at a regular meeting held this 5th day of ......._................. . March ,20�• Authenticated by the presiding officer and Clerk of the Commission on 6th day of March 2019 Filed with the Clerk March 6th 2019 Mayor Teri Johnston Yes Commissioner Gregory Davila Yes Commissioner Mary Lou Hoover Yes 2 Commissioner Sam Kauftnan Yes Vice Mayor Clayton Lopez Yes o Commissioner Billy Wardlow Yes Commissioner Jimmy Weekley Yes k 1 I TERI JOII? STON, MAYOR ATTEST: CHERYL SMITH, CITY CLERK Page 5 of 5 Packet Pg. 3533 Q.3.j F _ EXECUTIVE SUMMARY MY ® Jim Scholl, City Manager N Patrick Wright,Planning Director From: Vanessa Sellers, Planner II Meetingate® November 20, 2018 ® Text Amendment of the Comprehensive Plan—An ordinance oft e City of Key West, Florida, amending the City's Comprehensive Plan, adding Objective 1-1.17 and associated policiesto Chapter 1, "Future Land Use Element"; Objective 1-1.17 shall be known as the"Workforce-Affordable c Housing Initiative" providing for an additional 300 affordable allocations to an allocation pool to be identified as the "Affordable-Early vacaion Fool", pursuant to Chapter 90, Article V , Divisionproviding for severe ility; providing for repeal of inconsistent provisions; providing for c inclusion into t e City of Key West Comprehensive 1 d providing for CD an effective date. W ACT I e purpose of this ordinance is to amend the City's Comprehensive Plan, adding Objective 1- co' 1.17 and associated policies to Chapter 1, "Future Land Use Element." Objective 1-1.17 shall be i knowne "Workforce-Affordable ous° tiative$' providing for an additional 300 affordable allocations to an allocation pool to be identified as the "Affordable-Early vacuation fool." BACKGROUND®The proposed ordinance to amend the City's Comprehensive Plan is part of a process to address e affordable ous° shortage in the City and the County. The City Commission is hearing this Comprehensive Plan text amendment and also a text amendment to the Land Development Regulations which will allow the City to participate in the "Workforce-Affordable ousin Initiative," as approved during the June 13, 2018 meeting of the State of Florida Administration Commission. This Comprehensive Plan text amendment will establish a new objective (1-1.17 for 300 workforce-affordable building permit allocations,in addition to the allocations described in Chapter 108, Article X, of the Land Development Regulations (the "I, "), as well as any additional allocations which may be authorized by the Florida Administration Commission or transferred to Key West that are not accepted y other Florida Keys municipalities or Monroe County. The text amendment ill also establish supplementary policies. ............. �. __e.� I Packet Pg. 3534 REOUEST: The proposed text amendment to the Comprehensive Plan is as follows*: OBJECTIVE 1-1.17: WORKFORCE-AFFORDABLE HOUSING INITIATIVE. To support the City of Key West's workforce by alleviating constraints on affordable housimy, the S, City shall participate in the Workforce-Affordable Housing,Initiative, as aLiproved d L),the June 13,2018 meeting oft e Florida Administration Commission. The Workforce-Af for dablc Housin InitiativLMdll require new construction that.p ci)ates to commit to evacuating; tenants in the Phase I clearance window of evacuation. The City, thereby. shall establish a new limijod�catqr�or to be known as the "Affordable - Early Evacuation Pool" which will provide 300 workforce- affordablebuilding permit allocations for the Workforce-Affordable Housing Initiative, as well as anv additional allocations which mav be authorized by the Florida Administration Commission or transferred to Kev West that are not gggqgjqdjy other Florida Keys municipalities or Monroe Coumv. These allocations are in addition to the buildinv,oen-nit allocations identified in Obective 0 1-1.16. The City shall be reVonsible for the management. distribution, and enforcement of Muirements associated with the EarlyEvaguation.Affordable allocations. The Cftv of Kev West 0. 4- shall ensure adherence to these requirements throuU Ii iMplementation of the policies of this 0 objective. ?: CD Poliev 1-1.17.1: Distribution of Workforce-Affordable Housing Allocations. Workforce- u U) Affordable Housim-, allocations shall be available for allocation on a first-come first-served basis and distributed at any time following,L deguate gghligMfice and he grim, )rocs es 12 suant to -- _ CO Chapter 108 of the City's Land Development Regulations. In the event applications received exceed the allocations authorized herein.the cgmMeting applications shall be ranked in accordance with the BPAS rankin4-, procedures in giter 108. Section 997 (q). Policy 1-1.17.2: Specific Standa ds and Reguirements for Workforce-Affordable Housing. 0 Affordable-Early Evacuation residential is built under this program shall: a. be multiple-familv structures: b. be rental units; g, require, at a minimum, adherence to the latest edition of the Florida Building Code as published by the Florida BuildLnc, Commission-, E d, require on-site property management: e. p cgpply withap it or 2 licable hab at and other locational criteria and densities f multiple-family affordable,housing units,- f. incop2orate resilient design principles into the overall site design: 9. ensure accessibility jqSm plo_yj-nent cent ers,and amenities, _ h. reouire deed-restrictions ensuring .......... ------- Packet Pg. 3535] (i)_ the property remains workforce-affordable housipg �e its Jiil_ ten ants evacuate during the Phase I evacuation 12eriod; (iii) rental agree ments contain a separate disclosure-MRi6n,,tenants to ggkg owls dge that failure to adhere to the evacuation.,rest uire ment could result in severe tie nalties,,igLluding-eviction, to the resident: Poliev 1-1.17.3: Evacuation exgMptions. Persons lLvjLgin workforce-affordable housin&who S, are exempt from evacuation requirements of Policv 1-1.17.2.h.(ii) include first responders correctional officers,healthcare professionals, or other first-responder workers reguired to remain .2 in the lower keys during an emergogy evacuation,provided the versoncla ino,pl m qg�tion under this policy has faithfully certified their status wit pro v manage ment. > Policy 1-1.17.4: ADA Compliance. All workforce-affordable housing developments must demonstrate comLiliance with all-Uplicable-federal standards for accessibility for_p_ersons with disabilities. 0 Poligy 1-1.17.5: Evaluation apd Report. ,The City of Key West shall ide the state land pI anning agency with an annual report on the proguses 2 _�!pd�im �Iementation of the Workforce- 0 4— le Affordable Housiu 1nitiative. Reported information shall include documentation oft e number I.. 0 of workforce-affordable is built, occuangy rates, and compliance with the requirement to ?: CD evacuate the is in the Phase I evacuation. ca U) *Coding:Added language is underlined; deleted language is stFmGk4ks9vSh at first reading. co CD Citv Actions: Planning Board: October 18,2018 (approved) 0 City Commission: November 20,2018 (first reading) 2 DEO (ORC—Objections, Recommendation,and Comments): TBA City Commission: March 5,2019 (second reading) Planning Staff Analysis: The purpose of Chapter 90, Article VI, Division 3 of the Land Development Regulations (the E "LDRs")of the Code of Ordinances (the"Code") of the City of Key West, Florida(the"City") is to provide a means for changing the text of the Comprehensive Plan. It is not intended to relieve particular hardships nor to confer special privileges or rights on any person, but only to make necessary adjustments in light of changed conditions. In determining whether to grant a requested amendment, the City Commission shall consider, in addition to the factors set forth in this subdivision, the consistency of the proposed amendment with the intent of the Comprehensive Plan. ------------- ................. ... -------- .......... FPacket Pg. 3536 Q.3.j Options/Advantages/Disadvantages. Option 1: Approve the text amendment to the City's Comprehensive Plan to amend Chapter 108, adding Objective 1-1.17 and associated policies to Chapter 1, "Future Land Use Element," as recommended by the Planning Board through Resolution no. 2018-55. N a. Consistency with the City's Strategic Plan,Vision,and Mission: The Strategic Plan is silent on this issue. b. Financial Impact: There will be no cost to the City if this request is approved. Option 2: Deny the text amendment to the City's Comprehensive Plan to amend Chapter 108, adding Objective 1-1.17 and associated policies to Chapter 1, "Future Land Use Element," as recommended by the Planning Board through Resolution no. 2018- 55. a. Consistency with the City's Strategic Plan,Vision,and Mission: The Strategic Plan is silent on this issue. b. Financial Impact: There will be no cost to the City if this request is denied. Recommendation: co As per Resolution 2018-55, the Planning Board recommends the approval of the text amendment to the Comprehensive Plan. LU _ ..w,�e ........ a.dee................... ... Packet Pg. 3537 Q.3.j ��,'�0 Search this site... t a')? 14,"Y" Reemployment Assistance Business Growth Labor Market Community Planning, V Service Center &Partnerships Information Development&Services O PressReleases N Gov,Scott Directs DEO to EnhanceIor f rc Housing in the Florid Keys r O r,< alr. .N q➢ V YE e s - W. x J I <,L. n to N Reemployment Business Grown,9 Labor Market Community Planning Workforce Board About Us Name Cal � Assistance Service Partnerships Information € Development A Services Resources Center G 2017 State of Florida Deparbnent of Economic Opportunity LU .An equal opportunity empioye,1pragram All_Ice telephone numbers on Bris—bsife may be reached 6y persons wing TTYfrDD equipment via the Rend.Relay Sery Packet Pg. 3538 Q.3.j City of Key West, FL City Hall - 1300 White Street Key West FL 33040 -, Action Minutes - Final f� Planning Board N Thursday,October 18,2018 6:00 PM City Hall ADA Assistance: It is the policy of the City of Key West to comply with all requirements of the Americans with Disabilities Act(ADA). Please call the TTY number 1-800-955-8771 or for voice 1-800-955-8770 or the ADA Coordinator at 305-809-3811 at least five business days in advance for sign language interpreters,assistive listening devices, or materials in accessible format. ALL VISUAL PRESENTATIONS FOR AGENDA ITEMS MUST BE RECEIVED(24) TWENTY-FOUR HOURS PRIOR TO THE MEETING. o Call Meeting To Order 6:00 PM 4- 0 Pledge of Allegiance to the Flag CD Roll Call Absent 1 - Pike Present 6- Mr. Browning, Mr. Lloyd, Mr. Russo, Mr.Varela,Mr.Gilleran,and Chairman Co Holland �- I Approval of Agenda Old Business 1 Variance-3228 Flagler Avenue- (RE#00069040-000000)-A request for a variance to the minimum side yard setback requirement in order to construct eight residential units on property located within the Commercial Limited (CL)zoning district pursuant to the Land Development Regulations of the Code of Ordinances of the City of Key West, Florida. A motion was made by Mr.Lloyd,seconded by Mr.Russo,that the Board finds that all the standards set forth in code Section 90-395(A)have been met by the Applicant,that the Applicant has demonstrated a"Good Neighbor Policy"and that the Variance be Passed subject to the conditions set forth on the staff report.The motion carried by the following vote: Absent: 1 - Mr. Pike Yes: 6- Mr. Browning,Mr. Lloyd, Mr. Russo, Mr.Varela,Vice Chair Gilleran,and Chairman Holland City of Key Wes;FL Page t Packet Pg. 3539 Q.3.j Planning Board Action Minutes-Final October 18,2018 2 Minor Development Plan, Conditional Use, and Landscape Waiver- 3228 Flagler Avenue (RE#00069040-000000)-A request for minor development plan, Conditional Use and landscape waiver approvals for the construction of eight(8) non-transient units on property located within the Commercial Limited (CL) Zoning District pursuant to the Land N Development Regulations of the Code of Ordinances of the City of Key West, Florida. A motion was made by Mr.Lloyd,seconded by Mr.Russo,that the Board finds that Applicant's proposed conditional use demonstrates all the requirements of :5 the Code Section 122-62(C)have been met by the Applicant,that the Applicant has demonstrated a"Good Neighbor Policy"and that the Application be granted subject to the conditions set forth on the staff report.The motion carried by the following vote: Absent: 1 - Mr. Pike Yes: 6- Mr. Browning, Mr. Lloyd, Mr. Russo, Mr.Varela,Vice Chair Gilleran,and Chairman Holland 3 Exception for Outdoor Merchandise Display-407 A& B Front Street (RE#00000180-000000)-A request for exception for outdoor c merchandise display on property located within the Historic Residential Commercial Core Duval Street Gulfside (HRCC-1)Zoning District pursuant to the Land Development Regulations of the Code of Ordinances of the City of Key West, Florida. ca A motion was made by Mr.Russo,seconded by Mr.Varela,that the Planning Resolution be Passed.The motion carried by the following vote: 00 r I No: 2- Mr. Browning, and Mr. Lloyd Absent: 1 - Mr. Pike r Yes: 4- Mr. Russo, Mr.Varela,Vice Chair Gilleran,and Chairman Holland 4 An After-the-Fact Variance-3302 Harriet Avenue-(RE# 00031440-000100)-A request for variances to maintain a 6 foot solid fence on the front of the property and a eight foot gate entry on the side of the property located within the Medium Density Residential (MDR)zoning district pursuant to the Land Development Regulations of the Code of Lu Ordinances of the City of Key West, Florida. A motion was made by Mr.Browning,seconded by Mr.Lloyd,that the Board finds that all the standards set forth in code Section 90-396(A)have been met by the Applicant,that the Applicant has demonstrated a"Good Neighbor Policy"and that the After the fact Variance be Passed subject to the conditions set forth on the staff report.The motion carried by the following vote. No: 1 - Chairman Holland Absent: 1 - Mr. Pike City of Key Wes;FL page 2 Packet Pg. 3540 Q.3.j Banning Board Action Minutes-Final October 18,2018 Yes: 5- Mr. Browning, Mr. Lloyd, Mr. Russo, Mr.Varela,and Vice Chair Gilleran BusinessNew Comprehensive I n Text Amendment-A Resolution of the City of Key West I nning Board recommending an Ordinance to the City Commission amending the City's Comprehensive PIan, adding Objective 1-1.17 andassociated policies to Chapter 1, "Future Land Use Element"; and Objective1-1.17 shall be known as the "Workforce-AffordableHousing Initiative" providing for an additional 300 affordable allocations to an allocation pool to be identified s the a "Affordable-Early Ev cua ioPool", pursuant to Chapter icl I, Division Providing for s v r ill Providing for repeal of inconsistent provisions; Providing for inclusion into the City of Key West Comprehensive Plan; Providing for an effective date. pion was made by Mr.Browning,seconded y Mr.Varela,that the Planning esoluio be Passed.The motion carried y the following vote: 2 0 o: 1 - Mr. Lloyd 0 Absent- 1 - Mr. Pike CD Yes: 5- Mr. Browning, Mr. Russo, Mr.Varela,Vice Chair Cilleran,and Chairman W Holland 6 Text CJ Amendment of the Land Development Regulations-A Resolution o the City of Key West Planning Boardrecommending an Ordinance to the 03' City Commission amending Chapter 108 of the Land Developmenti Regulations, to create a new ArticleXII, to be title t "Workforce Affordable Housing Initiative", for the purpose of implementing Comprehensive Plan Objective 1-1.1 , authorizing the acceptance o 300 "Affordable-Early Ev cu ionPool" BPAS units; pursuant to Chapter y , Article VI, Division 2; Providingfor definitions, findings, purpose and intent, applicability, application, review of application, and monitoring; Providing for s v ra ill Providing for repeal of inconsistent provisions; Providing for an effective a . motion was made by Vice Chair Gilleran,seconded y Mr.Russo,that the Planning soluion be Passed.The motion carried the following vote: o: 1 - Mr. Lloyd Absent: 1 - Mr. Pike Yes: 5- Mr. Browning, Mr. Russo, Mr.Varela,Vice Chair Gilleran,and Chairman Holland City of Key West FL Page 3 Packet Pg. 3541 Q.3.j Planning Board Action Minutes-Final October 18,2018 7 Major Development Plan-638 United Street(RE#00036600-000000) - A request for a major development plan approval and landscape modifications/waiver for the construction of five (5) residential units on property located within Historic Residential/Office(HRO)zoning district pursuant to the Land Development Regulations of the Code of Ordinances of the City of Key West, Florida. A motion was made by Vice Chair Gilleran,seconded by Mr.Browning,that the Planning Resolution be Passed,Prior or simultaneous to issuance of a 2 Certificate of Occupancy for this development the project at 3228 Flagler Avenue must receive a Certificate of Occupancy.The motion carried by the following vote: Absent: 1 - Mr. Pike Yes: 6- Mr. Browning,Mr. Lloyd, Mr. Russo, Mr.Varela,Vice Chair Gilleran,and Chairman Holland 0 8 POSTPONED BY STAFF-000000, and 00065060-000000)-A request for an extension of an approved Amended and Restated Development Agreement in the General Commercial (CG) Zoning District pursuant to Chapter 90, Article IX and Section 122-416 through 122-420 of the Land c Development Regulations of the Code of Ordinances of the City of Key CD West. W A motion was made by Mr.Michael Browning,seconded by Mr.Michael Browning, that the Planning Resolution be Postponed to November 16.The motion passed by an unanimous vote. CD 03 9 Variance-2800 Staples Avenue- (RE#00067000-000000)-A request i for a variance to the maximum building coverage allowed in order to construct an accessory structure in the rear yard. The property is located within the Single Family(SF)zoning district pursuant to the Land Development Regulations of the Code of Ordinances of the City of Key West, Florida. A motion was made by Mr.Lloyd,seconded by Mr.Russo,that the Board finds that all the standards set forth in code Section 90-395(A)have been met by the Applicant,that the Applicant has demonstrated a"Good Neighbor Policy"and that the Variance be Passed subject to the conditions set forth on the staff report.The motion carried by the following vote: Absent: 1 - Mr. Pike Yes: 6- Mr. Browning, Mr. Lloyd, Mr. Russo,Mr.Varela,Vice Chair Gilleran,and Chairman Holland City of Key Wes4 FL Page 4 Packet Pg. 3542 Q.3.j Planning Board Action Minutes-Final October 18,2018 10 Variance- 1124 Truman Avenue (RE#00032360-000000)-A request for a variance to the minimum rear yard setback requirement in order to construct a 133-square-foot addition at property located within the Historic Neighborhood Commercial -Truman/Simonton (HNC-1)zoning district pursuant to the Land Development Regulations of the Code of Ordinances of the City of Key West, Florida. A motion was made by Mr.Lloyd,seconded by Mr.Russo,that the Board finds that all the standards set forth in code Section 90-395(A)have been met by the Applicant,that the Applicant has demonstrated a"Good Neighbor Policy"and that the Variance be Passed subject to the conditions set forth on the staff report.The motion carried by the following vote: Absent: 1 - Mr. Pike Yes: 6- Mr. Browning, Mr. Lloyd, Mr. Russo, Mr.Varela,Vice Chair Gilleran,and Chairman Holland 0 11 Conditional Use- 1124 Truman Avenue(RE#00032360-000000)-A request for conditional use approval to allow for the expansion of an existing restaurant to include on site consumption area at property located within the Historic Neighborhood Commercial-Truman / c Simonton (HNC-1)zoning district pursuant to Sections 122-62 and CD 122-808 of the Land Development Regulations of the Code of W Ordinances of the City of Key West, Florida. A motion was made by Mr.Browning,seconded by Mr.Russo,that the Board finds that Applicant's proposed conditional use demonstrates all the requirements of the Code Section 122-62(C)have been met by the Applicant, 03 0, that the Applicant has demonstrated a"Good Neighbor Policy"and that the Application be granted subject to the conditions set forth on the staff report. The motion carried by the following vote: Absent: 1 - Mr. Pike Yes: 6- Mr. Browning, Mr. Lloyd, Mr. Russo, Mr.Varela,Vice Chair Gilleran,and y Chairman Holland 12 Transient Unit/License Transfer- Unit/License.in Unassigned Status (formerly 501 Amelia Street RE#00027670-000100)to 215 Eanes Lane(RE#00017950-000000)-A request to transfer one transient unit and license in unassigned status to property located within the Historic Residential Commercial Core-3 Duval Street Oceanside(HRCC-3) zoning district pursuant to Section 122-1338 and 122-1339 the Land Development Regulations of the Code of Ordinances of the City of Key West, Florida. A motion was made by Vice Chair Gilleran,seconded by Mr.Varela,that the Planning Resolution be Passed.The motion carried by the following vote: No: 1 - Mr. Lloyd Absent: 1 - Mr. Pike City of Key West,FL Page 5 Packet Pg. 3543 Q.3.j Planning Board Action Minutes-Final October 18,2018 Yes: 5- Mr. Browning, Mr. Russo, Mr.Varela,Vice Chair Gilleran,and Chairman Holland 13 Exception for Outdoor Merchandise Display-205 Elizabeth Street, Unit A, Al, B-(RE#00072082-003903)-A request an exception for outdoor merchandise display on property located on Lazy Way Lane, Unit A, A-1, B in the Historic Residential Commercial Core Duval Street Gulfside (HRCC-1)zoning district per the Land Development Regulations of the Code of Ordinances of the City of Key West, Florida. A motion was made by Mr.Browning,seconded by Mr.Russo,that the Planning Resolution be Passed.The motion carried by the following vote: > No: 1 - Mr. Lloyd Absent: 1 - Mr. Pike Yes: 5- Mr. Browning, Mr. Russo, Mr.Varela,Vice Chair Gilleran, and Chairman Holland c 14 Exception for Outdoor Merchandise Display-205 Elizabeth Street, Unit G - (RE#00072082-003903)-A request an exception for outdoor merchandise display on property located on Lazy Way Lane, Unit G in o the Historic Residential Commercial Core Duval Street GulfsideCD (HRCC-1)zoning district per the Land Development Regulations of the W Code of Ordinances of the City of Key West, Florida. A motion was made by Mr.Russo,seconded by Mr.Varela,that the Planning Resolution be Passed.The motion carried by the following vote: , 03 Absent: 1 - Mr. Pike Yes: 6- Mr. Browning, Mr. Lloyd, Mr. Russo, Mr.Varela,Vice Chair Gilleran,and Chairman Holland r- Public Comment Reports Adjournment 9:09 PM City of Key Wes4 FL Page B Packet Pg. 3544 (s;iun uopenoena Apea Buisnoy aoaojMjoM 00£) OZ'0£'L s;iun oena Alaea aoao;MAOM 00£a4&uo suoi&oy A&unoo;o Aaewwn$g'xg:&uawLjoe&&y j Y � M M r 6 0 a w a o Y U = o - C a .t:. E Gf y V E m Ni wl Y N t QC9 Q Q _ a . M N N (O m r r p N N Ci ur �W0 a � m��Tc� E (D w t N 0 � mi 0 0) Q.O O)�-p O p C) C TO C C N m O C d O -O N O O 0U �N tr- c m ..�. N N > = O O t N tE N p 7 0O O CQ Ntr- ( C C N T C) 6 O)Nt 'O m O a� N U N m m T a1 m -O+ N O >U o0 -2- O t)p 0.� ":5a) :5 0 m N N m N N7 ; C:) N O Ema) O O 0)O �-0N . p �.=i. EN mm'O C N A Y N. N O fir,2 O :5-p.. O �. N'O o O O > f0 6 ."' 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O C= rnQM(D =, 2E � a) 2 O-00 �6 > aOa) a) O O a) a) N � OU." a) N ELL C a) E C N N a)U _Q O O i L Q N O N Q E �6 c c' rn a) V) Cc: 7 0 C �r a3 N N' a) O _' C t (Drt o �'Z,o io o mt�Q E o 5 Q.Q.� U O t 0 O C C p N N > C U Y U 7 C O C C a) a5 a) O Otr >O Q.a3 C U O ()W 0) C 0 O tr Q. i N C 0 N 0)i O 0 C °=1 E > C0(D a).° a d 0 c 0.�O O:F;ea 0'O O-a) E E a)0-' 0 0 0 O E a>)(L)(.0 0 0— O U N 0) O C E N O C N N UONmO as � 0 O E o N Q a3 L6 c j N m N Q.3.I IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT DECEMBER 28, 2020 CECILIA MATTINO, et al., CASE NO.: 3D20-1921 Appel lant(s)/Petitioner(s), vs. L.T. NO.: 20-32 CITY OF MARATHON, FLORIDA, et al., 0 Appel lee(s)/Respondent(s), Upon consideration of Appellants' Motion for Review and Reversal of Lower Tribunal's Denial of Motion to Stay Its Final Order and Motion for Stay 0 N of Final Order on Review, the Department of Economic Opportunity's final order N issued on December 23, 2020, is temporarily stayed pending further order of this E Court. Appellees are ordered to file a response within fifteen (15) days from 0 the date of this Order to Appellants' Motion to Stay. LOGUE, HENDON and LOBREE, JJ., concur. cc: Barton W. Smith Christopher B. Deem DEO Agency Clerk Packet Pg. 3551 Q.3.I George B. Wallace Nicola Jean Pappas Richard J. Grosso Roget V. Bryan Shawn D. Smith Hon. Susanne Van Wyk N is N N Packet Pg. 3552 Q.3.1 E= FINAL ORDER NO. DEO-20-032 STATE OF FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY y r CECILIA MATTINO, r M Petitioner, U g Vs. 21 DOAH CASE NO.: 18-625OGM CITY OF MARATHON, FLORIDA, .y Respondent, cs / 0 0 NAJA GIRARD, Petitioner, r 0 Vs. y DOAH CASE NO.: 19-1526GM CITY OF KEY WEST, FLORIDA, y r Respondent, _ ........ M CATHERINE BOSWORTH, U as Petitioner, 0 a V5. DOAH CASE NO.: 19-1839GM 20 ISLAMORADA, VILLAGE OF ISLANDS,FLORIDA, 0 Respondent, U. Uj Uj FINAL ORDER r This matter was considered by the Division of Community Development within the Florida r Department of Economic Opportunity ("Department") following the receipt of a recommended 1 Packet Pg.3553 Q.3.1 FINAL ORDER NO.DEO-20-032 order ("Recommended Order") issued by an Administrative Law Judge ("ALJ") assigned to the matter by the Division of Administrative Hearings ("DOAH"). y r Background 0 This is a proceeding to determine whether the City of Marathon ("Marathon") M U M g Comprehensive Plan Amendment 2018-01, adopted on October 23, 2018 ("Marathon Plan 0 21 M Amendment); City of Key West ("KeyWest") Comprehensive Plan end e t 19-06, adopted a on March 5, 2019 ("Key West Plan Amendments"); and Islamorada, Village of Islands 0 ("Islarnora a") Comprehensive Plan Amendment 19-03, adopted on April 4, 2019 ("Isla orada U 0 W Plan Amendment" (collectively"Plan Amendments") are"in compliance," as dcfined in section 163.318 (1)(b), Florida Statutes (2018).1 r On November 26, 2018, Petitioner Cecilia Mattino, filed a petition for an administrative An hearing challenging whether the Marathon Plan Amendment is "in compliance," as defined in section 163.3184(1)(b), Florida Statutes. Petitioner alleged, amongst other issues more detailed in the petition and the Recommended Order on Remand,that the Marathon Plan Amendment renders E the City of Marathon Comprehensive Plan internally inconsistent, in violation of section r U 163.3177(2),Florida Statutes.Moreover,the Petitioners challenge the Marathon Plan Amendment 0 as not based on relevant and appropriate data and analysis. CL On March 19,2019,Petitioner,Naja Girard, filed a Petition with the Division challenging the Key West Plan Amendment as violative of the Act on many of the same grounds. . On April 9, 2019, Petitioner, Catherine Bosworth, filed a Petition with the Division LU challenging the Islamorada Plan Amendment as violative of the Act on many of the same grounds LU as the other Petitioners. E U r References to the Florida Statutes are to the 2018 version,which was in effect on the date the Plan Amendments were adopted. 2 Packet Pg.3554 Q.3.1 FINAL ORDER NO. DEO-20-032 Petitioners filed an Amended Joint Motion to Consolidate the three cases, to which Respondents, Marathon and Islamorada, filed responses in opposition. Following a telephonic y r hearing on the Motion to Consolidate, the ALJ entered an Order of Consolidation on May 10, 0 2019. The consolidated cases were scheduled for final hearing on October 7 through 11, 2019; U M however,the final hearing was continued and rescheduled to December 9 through 13, 2019. 21 On April 24, 2020, the ALJ issued a recommended order, recommending the Department a as issue a final order determining that the Plan Amendments are in compliance. On May 11, 2020, the Petitioners timely filed exceptions to the initial recommended order.On August 21,2020,after U 0 the parties agreed, pursuant to Section 163.3184(5)(e)3., Florida Statutes, to an extension of time for the Department to take final action, the Department granted in part Exception Number 17 of r the Petitioners' initial exceptions,to the extent it raised the lack of findings of fact and conclusions o .y of law concerning the establishment of meaningful and predictable standards for the development of land, a dispositive issue raised by the Petitioners in their petitions. On September 25, 2020,the ALJ issued a Recommended Order on Remand, a copy of which is attached hereto as "Exhibit E "A." The Petitioners timely filed exceptions to the Recommended Order on Remand, which in r U a substance track the exceptions previously raised,aside from Exception Number 17,which address E 0 the additional findings of fact and conclusions of law included by the ALJ upon remand. CL On November 7, 2020, the Petitioner's filed a "Motion for Conditional Stay Pending 20 Appeal,"requesting that if the DEO finds the Plan Amendments"in compliance,"to stay the legal LL effect of the Final Order upon its rendition. On November 12,2020, Respondent's filed a Motion LU in Opposition. Respondent's argued that the pursuant to Rule 9.310(a) of the Florida Rules of r Appellate Procedure,Petitioners could not stay the legal effect because the order had not yet been rendered. r 3 Packet Pg.3555 Q.3.1 FINAL ORDER NO. DEO-20-032 As an initial matter, the controlling statutory provision, Section 163.31 8 ( )(e)5., F.S., states unambiguously, `d[a] plan or plan amendment adopted under the state coordinated review y r process shall go into effect pursuant to the state land planning agency's notice of intent. if timely 0 challenged, an amendment does not become effective until the state land planning agency or the U M Administration Commission enters a final order determining the adopted amendment to be in 21 compliance." The Petitioners have not established that the Department has the jurisdiction to stay the effective date of the comprehensive plan amendments, which the Legislature has 0 unambiguously declared goes into effect upon issuance of a final order. 0 However, if the Department does have jurisdiction, ruling on a motion to stay involves `o 3 fact-finding. See MSQ Properties v. Florida Dept. of`Health &.Rehab. Services, 626 So. 2d 292, r 293 (Fla. 1 st DCA 1993) (`These determinations may require fact finding which is not a fimction o .y of this court.")- see also Resolution Tr. Corp. v. Mayor&City Comn of City of'S. Miami, 633 So. 2d 1119, 1120 (Fla. 1st DCA 1994). The two factors relevant to the determination on whether to issue a stay are whether the movant has shown a likelihood of success on the merits and the E likelihood of harm should a stay not be granted. See Perez v. Perez, 769 So.2d 389 (Fla. 3d DCA U 1999).The Petitioners have failed to establish a stay is appropriate under either of the two factors. 0 As to the likelihood of success on the merits, the Department has considered and rendered its CL determination on the Petitioners' exceptions, which are discussed herein. As to the likelihood of 20 harm, comprehensive planning is one part of the statutory scheme in place to effectuate land use LL planning. Additional steps include the promulgation and review of local government land aJ development regulations and local government issuance of development orders, both of which LU include their own statutory provisions for challenging either administratively or in an appropriate E Circuit Court. See generally, 1 3.3215, Fla. Stat, §380.05, Fla. Stat. The harms allegedly 4 Packet Pg.3556 Q.3.1 FINAL ORDER NO. DEO-20-032 effectuated by the comprehensive plan amendment are not imminent given the additional layers of administrative and judicial review built into the state of Florida's land use system. The petitioners y r have failed to present sufficient evidence that a stay of the effectiveness of the Final Order is 0 necessary. Accordingly, if the motion is reviewable by the Department, it is denied without U M prejudice for the reasons set forth above. 21 M Role of the Deraartment as .y Petitioners' challenges were filed pursuant to sections 120.569, 120.57(1), and 163.3184(5), Florida Statutes. The AU held a hearing and issued the Recommended Order on U 0 Remand,recommending that the Department determine the Plan Amendments to be in compliance. Upon receipt of the Recommended Order on Remand, the Department may determine the r Plan Amendments are in compliance and enter a final order to that effect, or determine that the An Plan Amendments are not in compliance, and refer the Recommended Order on Remand and the y Department's determination to the Administration Commission for final agency action. § 163.3184(5)(e),Fla. Stat. E The Department has received a record consisting of copies of the parties' pleadings, the U documentary evidence introduced at the final hearing, and a five-volume transcript of the 0 proceedings of the final hearing. The Department has reviewed the record and issues this Final CL Order in accordance with sections 120.57(1)(k)-(1) and 163.3184(5)(e),Florida Statutes. 20 If the Department rejects or modifies a conclusion of law or interpretation of an LL administrative rule,then the Department must state with particularity its reasons for such rejection LU or modification. § 120.57(1)(1), Fla. Stat. If the Department rejects or modifies a finding of fact, LU then the Department must state with particularity that the finding was not based on competent M substantial evidence or that the proceedings on which the finding was based did not comply with 5 Packet Pg.3557 Q.3.1 FINAL ORDER NO.DEO-20-032 essential requirements of law.Id. Pursuant to section 120.57(1)(k), Florida Statutes, the Department must issue an explicit y r ruling on each exception. The Department is not required to rule on an exception that does not C 0 clearly identify the disputed portion of the Recommended Order on Remand by page number or U M paragraph, that does not identify the legal basis for the exception, or that does not include 0 21 appropriate and specific citations to the record. § 120.57(1)(k),Fla. Stat. as Standard of Review 0 Findings of Fact 0 Section 120.57(1)(1), Florida Statutes, prescribes that in its issuance of a final order, the Department may not reject or modify the findings of fact of the ALJ "unless the agency first r determines from a review of the entire record, and states with particularity in the order, that the o .2 findings of fact were not based upon competent substantial evidence or that the proceedings on a) which the findings were based did not comply with essential requirements of law." Evidence is C competent if it is admissible under the pertinent legal rules of evidence. Scholastic Book Fairs, C E Inc. v. Unemplmt. App. Comm'n, 671 So. 2d 287, 289 n.3 (Fla. 5th DCA 1996). Evidence is r U substantial if there is "some (more than a mere iota or scintilla) real, material, pertinent, and relevant evidence(as distinguished from ethereal,metaphysical, speculative or merely theoretical CL evidence or hypothetical possibilities)having definite probative value(that is, `tending to prove') as to each essential element" of the claim. Id. The Department is "not authorized to weigh the U. evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its LU desired ultimate conclusion."Heifetz v. Dept of Bus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCA LU 1985). "If the ALYs findings of fact are supported by competent, substantial evidence,the agency M cannot reject them even to make alternate findings that are also supported by competent, 6 Packet Pg.3558 Q.3.1 FINAL ORDER NO.DEO-20-032 substantial evidence."Lantz v. Smith, 106 So. 3d 518, 521 (Fla. 1st DCA 2013). The Department may reject findings of fact if the proceedings on which the findings were based did not comply y r with the essential requirements of law. See § 120.57(l)(1), Fla. Stat., and Dept. of Corrections v. 0 radle�y, 510 So.2d 1122, 1123 (Fla. 1 st DCA 1987). In this context,Florida's First District Court U M of Appeal has characterized a failure"to comply with the essential requirements of the law" as "a 21 procedural irregularity."Beckett v. Dep't of Fin, ,Servs., 982 So. 2d 94, 102 (Fla. 1st DCA 20 ) (ruling that the agency erred by concluding that the ALI had failed to comply with the essential requirements of the law "[b]ecause there has been no suggestion of a procedural irregularity"). 0 Conclusions of Law Section 12 .57(1)(1), Florida Statutes, authorizes the Department o reject or modify a r conclusion of law over which the agency has substantive jurisdiction. § 120.57(1)(1), Fla. tat.; o .y Barfield v. Dept of Health, 805 So.2d 1008, 1010(Fla. lst DCA.2001). If the Department rejects � y or modifies any of the ALYs conclusions of law,then the Department must state with particularity its reasons for rejecting or modifying the conclusion, and must make a finding that its substituted E M conclusion of law is as or more reasonable than that which was rejected or modified. § 120.57(1)(1), U M Fla. Stat. The Department is not permitted to reject or modify a finding that is substantially one of E 0 fact simply by treating the finding as a legal conclusion, See Abrams v. ,Seminole Craty. BSc . Bd., C 73 So. 3d 285,294 (Fla. 5th DCA 2011).Additionally, a rejection or modification of conclusion of law may not form a basis for rejection or modification of a finding of fact. § 120.57(1)(1), Fla. '. Stat. LU Rulings on Petitioners' Exce)tions to Recommended Order on Remand LU r (A) —Exception 1: Paragraphs 81,89,90,96,97, 102, and 199 M U In Exception 1,Petitioners take exception to findings of fact and conclusions of law contained 7 Packet Pg.3559 Q.3.1 FINAL ORDER NO.DEO-20-032 in paragraphs 81, 89, 90, 96,97, 102, and 199 of the Recommended Order on Remand because,as Petitioners argue,"the amendments clearly violate the unambiguous,plain language,24-hour limit y r C and express intent under the statute." C 0 The Department finds there is competent substantial evidence in the record to support the U M g ALFs Findings of Fact concerning the consistency of the Plan Amendments with the statutory 21 requirements for comprehensive plan amendments to be held "in compliance." (Trans. pg. 104 .y Dec. 12, 2019) Additionally, the AU's findings of fact that the plan amendments are internally consistent with the existing provisions of the local governments' comprehensive plans is supported o 0 by competent substantial evidence. (Trans. pg. 122 Dec. 12, 2019; Trans. pg. 127 Dec. 12, 2019; Trans. pg. 222 Dec. 12, 2019; Trans pgs. 67-72 Dec. 13, 2019) To the extent the petitioners' r exception argues the referenced paragraphs are incorrect legal conclusions, the Department has o .2 considered Exception 1 and cannot substitute a legal conclusion as reasonable as or more y reasonable than that reached by the ALJ. The potential addition of 1,300 affordable workforce C units, subject to the early evacuation provisions, does not as a matter of law cause the Plan a) E M Amendments to be not"in compliance"as defined in section 163.3184, F.S. The early evacuation r U M requirements for the workforce affordable housing units are akin to the evacuation requirements 0 for mobile home inhabitants,military, and tourists,which are calculated in the 24 hours precedingCL the final 24 hours of evacuation. The Petitioners have failed to provide a legal conclusion that is 0 as reasonable as or more reasonable than the ALJ's conclusion that the plan amendments are in E U. compliance as set forth in Section 163.3184, Florida Statutes,which provides as follows: "J "In compliance" means consistent with the requirements of LU ss. 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, and 163.3248, with the appropriate strategic regional policy plan, and with the principles for guiding development in designated areas M of critical state concern and with part III of chapter 369, where applicable. 8 Packet Pg.375670 Q.3.1 FINAL ORDER NO.DEO-20-032 Exception 1 is DENIED. (B)—Exception 2: Paragraphs 89,90,and 96 r C In Exception 2, Petitioners take exception to the findings of fact in paragraph 89, 90, and o .2 M 96 of the Recommended Order on Remand as being both unsupported by competent substantial U g evidence and as alleged incorrect legal interpretations. 21 M The Department is not permitted to reject or modify a finding that is substantially one of .y fact simply by treating the finding as a legal conclusion.See Abrams,73 So.3d at 294. Paragraphs �° cs 89, 90, and 96, are properly classified as findings of fact and the exceptions are denied insofar as 0 they challenge the findings of fact of the AU as a legal conclusion. Moreover,the determination that evacuation of Phase I with the additional 1,300 units can be completed within the first 24 r C hours of a 48-hour evacuation scenario is nevertheless supported by competent and substantial .2 evidence. Evidence is competent if it is admissible under the pertinent legal rules of evidence. y r C Scholastic Book Fairs, 671 So.2d at 290 n.3. Evidence is substantial if there is "some(more than C a mere iota or scintilla), real, material, pertinent, and relevant evidence . . . having definite M probative value (that is, 'tending to prove') as to each essential element" of the claim. Id. The U as respondents' witness,Mr. Garrett,testified that"outside of what statutorily is the 24 hours we've 0 CL been discussing,there's still roughly six-and-a-half hours of capacity,if you will,within that first 24-hour evacuation period."(Trans.pg. 105 Dec. 12,2019) The petitioners'witness,Mr.Ogburn, 0 C testified that he did not have a clear answer as to how requiring the affordable workforce housing iz LU residents to evacuate prior to the 24-hour time-period would impact the evacuation of the Keys. (Trans. pg. 79 Dec. 10, 2019) It is not the place of the Department to "weigh the evidence LU C a) presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired U r ultimate conclusion." Heifetz, 475 So. 2d at 1281. Therefore, so long as the AU's findings are 9 Packet Pg.375671 Q.3.1 FINAL ORDER NO.DEO-20-032 supported by competent and substantial evidence, the agency may not reject them to make alternative findings supported by evidence. Lantz v. Smith, 16 So. 3d 518, 521 (Fla. 1st DCA y r 2013). Ultimately, the ALJ's findings of fact in paragraphs 89, 90, and 96 were supported by 0 r competent and substantial evidence. U M g Exception 2 is DENIED. 21 (C)—Exception 3: Paragraphs 88 and 197 .y In Exception 3, Petitioners take exception to the ALJ's finding that Petitioners' evidence o concerning the Hurricane Evacuation Model were irrelevant to the plan amendments. Exception 3 requests the Department to forward this matter to the Administration Commission or remand this matter back to the ALJ with instructions to review the evidence and render findings as to r whether the early evacuation deed restriction requirement is based upon professionally accepted .2 data and analysis. y r It is not the place of the Department to "weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion."Heifetz, 475 M So.2d at 1281.The Department may not reject and make alternative findings if the ALJ's findings r U M are supported by competent and substantial evidence. Lantz, 16 So. 3d at 521. Exception 3 is 6 denied to the extent that it requests the Department to modify or reject findings by reweighing the C evidence presented to the ALJ. The ALJ weighed the evidence,identifying in the Recommended M Order on Remand weight given to witnesses from both Petitioners and Respondents, and ;E concluded that "Based upon the foregoing Findings of Fact, Petitioners did not prove the Plan a' Amendments are not supported by adequate data and analysis, or fail to react to professionally LU - r acceptable data in an appropriate way."The Petitioners argue the ALJ misconstrued their position U concerning the 2012 hurricane evacuation model,when,upon review,the ALJ is merely restating 10 Packet Pg.375672 Q.3.1 FINAL ORDER NO.DEO-20-032 a finding of fact, which is that the 2012 TIME Model and the comprehensive planning that has been adopted pursuant thereto, have been found to be "in compliance". The Department y r otherwise finds that the ALJ's findings of fact on the issue related to the best available data C 0 supporting the 24-hour evacuation clearance time cap as being supported by competent substantial U M evidence. 21 Exception 3 is DENIED. as (D)—Exception 4: Paragraph 88,footnote 19 0 In Exception 4,Petitioners takes exception to the findings of fact in paragraph 88, footnote U 0 19, of the Recommended Order on Remand as being unclear on, as Petitioners' allege, a dispositive fact, inconsistent with other findings of fact, and unsupported by competent r substantial evidence. C 0 An Specifically,Petitioners present factors that the Department should consider in determining a) whether the finding was inconsistent or erroneous. However,it is not the place of the Department a) to "weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the C E evidence to fit its desired ultimate conclusion."Heifetz,475 So. 2d at 1281. The Department may r U not reject and make alternative findings if the ALJ's findings are supported by competent and ®a 0 substantial evidence.Lantz, 16 So. 3d at 521. Exception 4 is denied to the extent that it requests CL the Department to modify or reject findings by reweighing the evidence presented to the ALJ. 20 The Department otherwise finds that the ALJ's finding of fact on the issues related to the best U. available data supporting the consistency with the 24-hour evacuation clearance time cap as being supported by competent substantial evidence. The competent substantial evidence supports a r conclusion that the 2012 TIME Model relied upon underlying assumptions and inputs,including the bifurcation of certain individuals (mobile-home residents,military, tourists)into an initial 24 11 Packet Pg.3563 Q.3.1 FINAL ORDER NO. DEO-20-032 hour evacuation phase, has been held "in compliance" and, therefore, the analysis is either irrelevant or contrary to the arguments Petitioners'raised concerning the consistency with the 24- y r hour evacuation clearance time cap. C 0 Exception 4 is DENIED. U M (E)—Exception 5: Paragraph 191 21 In Exception 5, the Petitioners take exception to the ALJ's legal conclusion that the 2012 Hurricane Evacuation Memorandum of Agreement was not adopted by reference into the local 0 governments' comprehensive plans and, therefore, not subject to part of the "in compliance" U 0 challenge brought by the Petitioners pursuant to Section 163.3184, F.S. In particular the Petitioners take exception to the ALJ's conclusions of law in paragraph 191, r wherein the AU essentially concluded the Memorandum of Agreement is not adopted by reference o .2 in the local governments' comprehensive plans, is subject to amendment outside of the plan y amendment process subject to Section 163.3184,and is,therefore,not part of this"in compliance" C determination. The Petitioners take exception primarily to the legal conclusion that the C E Memorandum of Agreement is not adopted by reference in the local governments' comprehensive r U plans. The Petitioners'have failed to provide a persuasive conclusion of law that the Memorandum 0 of Agreement is properly incorporated as set forth in Section 163.3177(1)(b),Florida Statutes. The CL Department has considered the matter and finds that the ALJ's conclusions of law in the paragraph 20 cited in Exception 5 are reasonable, and the Department does not have any substitute conclusions LL of law that are as or more reasonable than those of the AU in the paragraphs cited in Exception 5. LU Exception 5 is DENIED. LU (F)—Exception 6: Paragraph 68 U In Exception 6,the petitioners take exception to the ALJ's Recommended Order on Remand r 12 Packet Pg.3564 Q.3.1 FINAL ORDER NO.DEO-20-032 and allege that it fails to develop findings of facts supported by competent substantial evidence concerning the petitioners'arguments that the plan amendments are not based on data and analysis y r as to whether the early evacuation deed restrictions will be effective. Essentially, the petitioners 0 take exception to the ALJ's Finding of Fact in paragraph 68 and the failure to issue additional U M findings of fact. 21 Petitioners cite Moehle and Austin for the proposition that the"early evacuation deed"is a .y conclusory statement unsupported by competent and substantial evidence. Yet the conclusory statements in each case are distinguishable from the case at bar. In Moehle, the designation of o 0 submerged land as medium density residential served no rational purpose, conflicted with cited Conservation objectives, and was unsupported by evidence concerning the values in providing r water quality and habitat values. See Moehle v. City of Cocoa Beach, No. 96-5832 at T¶ 18-20 0 .2 (Fla. Div. Admin. Hrgs. Oct. 20, 1997) ("Under the facts of this case, designating 0.18 acres of y submerged bottom--even though privately awned--as Medium Density Residential makes no sense."). In Austin, inconsistencies resulted from a direct conflict between protecting wetlands E M while simultaneously eliminating nearly all wetlands/open space and failing to depict wetlands as U a natural resource on the Future Land Use Map.Austin v. City of Cocoa,ER FALR 89:0128 at¶¶ 0 190,289(Admin. Comm. 1989). In contrast to the instant case,Moehle and Austin involve clearly CL irrational decisions and direct and egregious conflicts between stated objectives and planned -a designation. Based on the record evidence in the present case, the ALJ concluded "Based upon '. the foregoing Findings of Fact,Petitioners did not prove the Plan Amendments are not supported a' by adequate data and analysis, or fail to react to professionally-acceptable data in an appropriate LU r way." Petitioners did not prove beyond fair debate that the deed restriction and findings of the U Housing Initiative are not based on appropriate data and analysis or are not supported by 13 Packet Pg.375675 Q.3.1 FINAL ORDER NO.DEO-20-032 competent and substantial evidence. The Department has considered the matter and finds that the findings of fact in paragraph y r 68 were based on competent substantial evidence in the record. (Trans. at 122 Dec. 12, 2012) 0 There is nothing clearly erroneous about the finding of facts simply because the Petitioner wishes U M to include more information.The ALJs findings of fact were not insufficient for the determination 21 and Florida law and departmental policy was not incorrectly interpreted and applied. Charlotte as County v. IMC Phosphates Co., 18 So. 3d 1089, 1093 (Fla. 2d DCA 2009). The Petitioners did 0 not prove beyond fair debate that relevant data and analysis were not employed in considering the U 0 early evacuation deed restriction. The petitioners ask the Department to remand this back to the AU for additional findings, however, the issue of evacuation times was focal in the original hearing and the AU made findings of fact and conclusions of lain as to whether the plan .2 amendments were supported by data and analysis (Recommended Order on Remand ¶ 68, 98, 153, 195-198) Further, the proceedings upon which the findings were made complied with essential requirements of law. E Exception 6 is DENIED. M, r U (G) —Exception 7: Paragraph 200 ®a In Exception 7, Petitioner takes exceptions to the conclusion of law in paragraph 200 of the CL Recommended Order on Remand as being both unsupported by competent substantial evidence and incorrect legal interpretations on the issue. The Petitioners claims that findings of fact 176 LL and 181 are not supported by competent substantial evidence, claiming that the amendments by Lu their terms do not require the new homes to be affordable housing for members of the workforce. >� LU Foremost,the Department is not permitted to reject or modify a finding that is substantially E M one of fact simply by treating the finding as a legal conclusion. See Abrams, 73 So. 3d at 294. r Thus,the exceptions are denied insofar as they challenge the findings of fact of the AU as a legal 14 Packet Pg.375676 Q.3.1 FINAL ORDER NO.DEO-20-032 conclusion. Alternatively, the Department is not authorized to "weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate y r conclusion." Heifetz, 475 So. 2d at 1281. The Department may not reject and make alternative 0 findings if the ALJ's findings are supported by competent and substantial evidence.Lantz, 16 So. U M 3d at 521. In this case, while there is no specific definition of workforce affordable housing, the 21 comprehensive plan points to the land development regulation,"which exist and have a structure as that fully understands what an affordable housing project is and how to implement it, so this just become a part of it and affordable housing is absolutely defined within in a broader sense within U 0 the city's . . . Land Development Regulations." (Trans. pg. 99 Dec. 12, 2019). Additionally, the current building permit allocation systems already distinguish existing allocations on a basis of affordable and market rate.See Finding of Fact 33,Recommended Order on Remand. Exception An 7 is denied to the extent that it requests the Department to modify or reject findings by reweighing a) the evidence presented to the ALJ.The Department otherwise finds that the ALJ's finding of fact on the issue relating to the requirement of workforce affordable housing as being supported by r- E competent substantial evidence. As to the ALJ's conclusion of law in paragraph 200, the r U Department cannot support, and the Petitioners have failed to provide, a conclusion of law as reasonable as or more reasonable than that which the ALJ provided therein. CL Exception 7 is DENIED. (H) —Exception 8: Paragraphs 68, 181, and 200 U. In Exception 8, the petitioners take exception to Finding of Fact 68 and Conclusion of Law 181 and 200 as erroneous legal conclusions. LU The Department determines from the record that Finding of Fact 68 is not a conclusion of law M as suggested by the petitioners. Additionally,paragraph 68 is supported by competent substantial 15 Packet Pg.375677 Q.3.1 FINAL ORDER NO.DEO-20-032 evidence and,therefore is upheld. (Trans. pgs. 87-89 Dec. 12, 2019) Petitioners argue against the legal conclusion that the Plan Amendments support affordable housing, one of the Principles for y r Guiding Development. Petitioner's legal conclusion is not as reasonable as or more reasonable 0 r than the conclusion set forth by the AU in Paragraph 181 and 200. The Department also cannot U M g support a legal conclusion as reasonable as or more reasonable than the ALJ's. 21 Exception 8 is DENIED. .y (I) —Exception 9: Paragraph 69 In Exception 9, the petitioners take exception to the finding of fact in paragraph 69 of the 0 Recommended Order on Remand as not being supported by competent substantial evidence. 3 Petitioners argue that finding of fact 69 is unsupported hearsay. The Finding of Fact is C r supported by competent substantial evidence. (Trans. pgs. 137-38 Dec. 12, 2019) The o .y Department is not authorized to "weigh the evidence presented,judge credibility of witnesses,or y r otherwise interpret the evidence to fit its desired ultimate conclusion."Heifetz,475 So.2d at 1281. The Department may not reject and make alternative findings if the ALJ's findings are supported E M by competent and substantial evidence.Lantz, 16 So. 3d at 521. Competent substantial evidencc U M in the record supports the ALJ's finding of fact 69. (Trans. pg. 105 Dec. 12, 2019) Exception 9 0 is denied to the extent that it requests the Department to modify or reject findings by reweighing CL the evidence presented to the ALJ.The Department otherwise finds that the ALJ's finding of fact 0 on the issue relating to the Housing Initiatives compliance with the 24-hour window as being U. supported by competent substantial evidence. Exception 9 is DENIED. r (J) —Exception 10: Evidentiary Considerations E M U In Exception 10,the petitioners take exception to the ALJ's treatment of offered depositions 16 Packet Pg.3568 Q.3.1 FINAL ORDER NO.DEO-20-032 as uncorroborated hearsay as a departure from essential requirements of law and request the Department remand the cases back to the ALJ with instructions to consider and determine Don y r Maynard and Kathleen McKee's expert qualifications and to consider their testimony in order to 0 make findings of fact relative to water quality issues raised in this proceeding. U M The ALJ ruled that although the evidence was admissible, it constituted hearsay. The ALJ 21 determined no non-hearsay evidence was offered to corroborate the depositions of Mr. Maynard .y and Ms.McKee.To the extent the Petitioners request the Department substitute its legal conclusion concerning the evidentiary issue in place of the ALJ, the Department does not have substantive 0 jurisdiction to do so. Furthermore,the Department has not determined that the proceedings upon which the ALJ's findings and conclusions cited in Exception 10 departed from the essential r requirements of law. .y Exception 10 is DENIED. y (I)—Exception 11: Evidentiary Considerations In Exception 11, the petitioners continue their exception to the ALJ's evidentiary E M determination concerning the weight to be given to the offered deposition testimony of Mr. r U M Maynard and Ms. McKee. The petitioners specifically take exception to the ALJ's determination E 0 that the deposition testimony was not corroborated. CL The ALJ ruled that although the evidence was admissible, it constituted hearsay. The ALJ 20 0 determined no non-hearsay evidence was offered to corroborate the depositions of Mr. Maynard E U. and Ms.McKee.To the extent the Petitioners request the Department substitute its legal conclusion a' concerning the evidentiary issue in place of the ALJ, the Department does not have substantive UJ r jurisdiction to do so. The Department cannot determine that the proceedings upon which the ALJ's U findings and conclusions cited in Exception 11 departed from the essential requirements of law. 17 Packet Pg.375679 Q.3.1 FINAL ORDER NO.DEO-20-032 Exception 11 is DENIED. (L)—Exception 12: Paragraphs 107, 111, 114 y r C In Exception 12, the petitioners take exception to Findings of Fact 107, 111, and 114 0 because they allege the ALJ failed to address water quality standards set forth in prior agency U M g action and because they allege the ALJ erroneously refused to consider Petitioner's water quality 21 expert witness depositions. as .y The ALJ's consideration of the Petitioner's water quality expert witness depositions has U previously been discussed in Exception 10 and 11 above, and is likewise, upheld in response to 0 Exception 12. The findings of fact contested in Exception 12 are supported by competent substantial evidence. (See Paragraphs M— O herein) To the extent Exception 12 argues these r paragraphs include erroneous legal conclusions the Department has reviewed the Recommended o .2 Order on Remand and cannot substitute more reasonable legal conclusions than those contained in y the Recommended Order on Remand as it relates to water quality requirements under the C requirements for a comprehensive plan amendment to be "in compliance" as set forth in section C E M 163.3184,Florida Statutes. U Exception 12 is DENIED. 0 (M)—Exception 13: Paragraph 115 CL In Exception 13, Petitioner takes exception to the finding of fact in paragraph 115 of the Recommended Order on Remand as not being supported by competent substantial evidence. '. Specifically, Petitioner claims that the ALJs refusal to consider the SHORE station data is a' material error, claiming that SHORE data is "undisputedly" a subset of nearshore water. Pet. Uj r C Except. Rec. Order at¶ 121 0 E M U The Department has considered the matter and finds that the findings of fact in paragraph 18 Packet Pg.3570 Q.3.1 FINAL ORDER NO. DEO-20-032 115 were based on competent substantial evidence in the record. (Pet. Exh. 8) (Trans. pgs. 74-80 Dec. 11, 2019) The Department is not authorized to "weigh the evidence presented, judge y r credibility of witnesses,or otherwise interpret the evidence to fit its desired ultimate conclusion." C 0 Heifetz, 475 So. 2d at 1281. The Department may not reject and make alternative findings if the U M g ALFs findings are supported by competent and substantial evidence. Lantz, 16 So. 3d at 521. 21 Exception 13 is denied to the extent that it requests the Department to modify or reject findings by reweighing the evidence presented to the ALJ. Further, the proceedings upon which the o findings were made complied with essential requirements of law. 0 Exception 13 is DENIED `o 3 (N)—Exception 14: Paragraph 107 In Exception 14, Petitioner takes exception to the finding of fact in paragraph 107 of the o An Recommended Order on Remand as not being supported by competent substantial evidence. The Department has considered the matter and finds that the findings of fact in paragraph C 107 were based on competent substantial evidence in the record. (Pet. Exh. 2) There is nothing C E clearly erroneous about the finding of fact simply because the Petitioner wishes to include more r U information. There is competent substantial evidence in the record to support the ALFs finding of ®a 0 fact in paragraph 107. Further,the proceedings upon which the findings were made complied with CL essential requirements of law. Exception 14 is DENIED LL (0)—Exception 15: Paragraph 111 LU In Exception 15, Petitioner takes exception to the finding of fact in paragraph I I I of the LU Recommended Order on Remand as not being supported by competent substantial evidence. M The Department has considered the matter and finds that the findings of fact in paragraph 107 were based on competent substantial evidence in the record. (Pet. Exh. 9) The Petitioners 19 Packet Pg.3571 Q.3.1 FINAL ORDER NO.DEO-20-032 contend that two years of improvement do not constitute a trend.There is nothing clearly erroneous about the finding of fact simply because the Petitioner disagree on what constitutes an y r C improvement. There is competent substantial evidence in the record to support the ALJ's finding 0 r M of fact in paragraph 111. The Department denies Exception 15 to the extent Petitioner request that M g Department reweigh evidence or judge credibility of witnesses. See Heifetz 475 So. 2d at 1281. 21 Further,the proceedings upon which the findings were made complied with essential requirements M .y of law. o Exception No. 15 is DENIED o (P)—Exception No. 16: Paragraph 114 In Exception 16, Petitioner takes exception to the finding of fact in paragraph 114 of the r Recommended Order on Remand as not being supported by competent substantial evidence. o .y The Department has considered the matter and finds that the findings of fact in paragraph y 114 were based on competent substantial evidence in the record. (Pet. Exh. 8) The Petitioners C contend that the ALJ's use of"many" to refer to half of the median nutrient levels meeting EPA C E M targets is erroneous. There is nothing clearly erroneous about the finding of fact based simple U M because Petitioners disagree with the ALJ's choice of wording. There is competent substantial E 0 evidence in the record to support the ALJ's finding of fact in paragraph 114. Further, the CL proceedings upon which the findings were made complied with essential requirements of law. 20 Exception 16 is DENIED U. (Q)—Exception 17: Paragraphs 164 through 171 and 178 through 181 LU In Exception 17, the petitioners take exception to the ALJ's findings of fact set forth in LU paragraphs 164 through 171 and 178 through 181 of the Recommended Order on Remand. These 0 E M U paragraphs find the Plan Amendments establish meaningful and predictable standards for the use and development of land. The Petitioners' take exception to the ALJ's findings that the Plan 20 Packet Pg.3572 Q.3.1 FINAL ORDER NO.DEO-20-032 Amendments establish meaningful and predictable standards relating to requirements to ensure accessibility of the workforce-affordable housing to employment centers and amenities, y r incorporate sustainability and resilient design principles, providing for preservation of the units 0 for workforce, and ensuring compliance with early evacuation requirements. U M Competent substantial evidence,in the form of testimony from the Respondents'witnesses, 21 established that the Plan Amendments establish the necessary direction to provide meaningful and as predictable standards for the development of the land. (Trans.pgs. 96-97, 99, 198 Dec. 12, 2019); (Trans. pg. 70 Dec. 13, 2019) The ALJ's conclusion that not all terms in a comprehensive plan U 0 need to be defined is reasonable and the Department cannot substitute a more reasonable conclusion. Where the terms are undefined the plain language prevails. Additionally, the local r governments' regulatory schemes, including comprehensive plan and land development .y regulation, have been held in compliance in implementing affordable housing regulations. The y Petitioners' attempt to read portions of the plan amendments in isolation so as to render them lacking in clarity is not as reasonable a conclusion as that set forth by the ALJ. E Exception 17 is DENIED U (R)—Exception 18: Paragraph 61 and 62 ®a 0 In Exception 18,Petitioner takes exception to the finding of fact in paragraph 61 and 62 of CL the Recommended Order on Remand as not being supported by competent substantial evidence. 20 The Petitioner excepts to the finding that 400 units of affordable housing were destroyed LL during Hurricane Irma. Yet, in pertinent part,Mr. Garrett testified that the: uJ City of Marathon recognized that it--because of the impacts of Hurricane Irma it had a significant issue probably with its affordable housing. . . In fact,there was an affordable housing issue. The storm itself destroyed an estimated 400 homes, including trailers, permanent RVs, as we describe them, and ground-level homes, U so we knew that we would have issues with maintaining our Workforce. 21 Packet Pg.3573 Q.3.1 FINAL ORDER NO.DEO-20-032 (Trans. pgs. 77-78 Dec. 12, 2019). The transcript record cited by the Petitioner references that there was no specific analysis for regarding damage to all housing and does not demonstrate that y r C the ALJs finding of fact was clearly erroneous. (Trans.pgs. 195-96 Dec. 12, 2019). 0 r The Department is "not authorized to weigh the evidence presented,judge credibility of M g witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion."Heifetz, 475 21 So.2d at 1281.Exception 18 is denied to the extent Petitioner requests that the Department reweigh as .y evidence to modify or reject the ALJ's findings in paragraphs 61 and 62. The findings of fact o challenged in Exception 18 were otherwise based upon competent substantial evidence. (Trans. o 0 pg. 107 Dec. 9,2019); (Trans.pgs. 77-78 Dec. 12, 2019); Trans.pgs. 195-96 Dec. 12,2019). Exception 18 is DENIED C r (S)—Exception 19: Evidentiary Issues o .y In Exception 19, the petitioners take exception to the ALJ's treatment of petitioners' � y r witness testimony. In particular, the petitioners take exception to the ALJ's granting of an a) objection to exhibits relied upon by Ms. Jetton as hearsay. The ALJ admitted the exhibits into the M record but given the scope of Ms. Jetton's expertise,gave the exhibits the appropriate weight. The r U M Department is not authorized to "weigh the evidence presented,judge credibility of witnesses, or 0 otherwise interpret the evidence to fit its desired ultimate conclusion."Heifetz,475 So.2d at 1281. CL The ALJ's determination concerning the evidence presented at the hearing, such as weighing 0 testimony and determining the weight and amount of supportive evidence is solely within the LL LU province of the ALJ as the finder of fact. The ALJ's determinations concerning Ms. Jetton's expertise are supported by competent substantial evidence from her testimony. The Department LU r C is unable to reweigh such competent substantial evidence or make its own judgment as to the U credibility of witnesses.See Heifetz, 475 So.2d at 1281-1283. Exception 19 is denied to the extent 22 Packet Pg.3574 Q.3.1 FINAL ORDER NO.DEO-20-032 that it requests the Department to modify or reject findings by reweighing the evidence presented to the ALJ.Additionally,the Department denies Exception 19 because the proceedings upon which y r the findings were made complied with essential requirements of law. 0 Exception 19 is DENIED M U M g (T)—Exception 20: Appellate Standing In Exception 20, the petitioners take exception to the lack of findings of fact related to whether the petitioners were "adversely affected" by the plan amendments for purposes of conveying appellate standing. o 0 Petitioner states that the ALJ made no specific findings that the Appellants would be adversely affected, arguing that findings made were inexplicit and ambiguous. The Petitioner's r cite Martin County for the proposition that a showing of standing must be made in the o .y administrative hearing, and that a failure to do so may support a remand. However, while Martin � y County does state that a Petitioner has "the responsibility to request that the ALJ make some findings in this regard," this refers to the citation of specific facts to rebut the Sierra Club 0 E requirement for interest groups to provide facts concerning an individually affected member to U M confer standing. Martin County Conservation All. v. Martin County, 73 So. 3d 856, 862 (Fla. 1st 0 DCA 2011)In contrast to the case at bar,Martin County involved appellants who filed a"meritlessCL appeal, able to assert only that the amendment might lead to negative results . . ." where "no possible view of the evidence presented at the final hearing below would support a reasonable LL conclusion that Appellants had standing to appeal."Id. at 864, 65. UJ In the instant case,the ALJ has made specific findings of fact regarding the unique concerns UJ r and injuries of all three Petitioners that upon review may confer appellate standing. Rec. Order on Remand at IT 2-9. There is nothing clearly erroneous about the findings of fact simply because 23 Packet Pg.3575 Q.3.1 FINAL ORDER NO.DEO-20-032 the Petitioner wishes to include more definite terms. Further, the proceedings upon which the findings were made complied with essential requirements of law. y r Exception No. 20 is DENIED 0 r M Remainder of the Recommended Order on Remand M g The Department has reviewed the remainder of the Recommended Order on Remand and21 M concludes that all findings of fact therein were based on competent substantial evidence in the .y record. The Department finds that the proceedings on which the findings of fact were based complied with the essential requirements of law. `o The Department has reviewed the ALJ's conclusions of law and finds that all conclusions of law within the Department's substantive jurisdiction are reasonable. The Department does not r have any substitute conclusions of law that would be as or more reasonable than the ALJ's •2 conclusions of law. y r ORDER Based on the foregoing, the Department determines that the Plan Amendments are "in M compliance," as defined in section 163.3184(1)(b), Florida Statutes. The Department adopts the as Recommended Order on Remand, as the Department's Final Order. a 6 M e. Dated this 93 day of December,2020. LU Dario Rubio,Director >� Division of Community Development a' Florida Department of Economic Opportunity U r r 24 Packet Pg.3576 Q.3.1 FINAL ORDER NO. DEO-20-032 NOTICE OF RIGHT TO JUDICIAL REVIEW THIS FINAL ORDER CONSTITUTES FINAL AGENCY ACTION UNDER CHAPTER 120, FLORIDA STATUTES. A PARTY WHO IS ADVERSELY AFFECTED BY FINAL AGENCY ACTION IS ENTITLED TO JUDICIAL REVIEW IN ACCORDANCE WITH SECTION 120.68, o FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(B)(1)(C)AND 9.110. u g TO INITIATE JUDICIAL REVIEW OF THIS FINAL AGENCY ACTION, A NOTICE OF 21 APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 107 EAST MADISON STREET,CALDWELL BUILDING,MSC 110,TALLAHASSEE,FLORIDA 32399- 4128, AGENCY.CLERK@DEO.MYFLORIDA.COM, WITHIN THIRTY (30) CALENDAR DAYS AFTER THE DATE OF THE FINAL AGENCY ACTION. A DOCUMENT IS FILED WITH THE AGENCY CLERK WHEN IT IS RECEIVED BY THE AGENCY CLERK. THE u NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(A). A COPY OF THE NOTICE OF APPEAL MUST ALSO BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF APPEAL MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22,FLORIDA STATUTES. r 0 An y r E m r u as ®a 0 a 0 r- LL Lu Lu r r- 0 E u r r 25 Packet Pg.3577 Q.3.1 FINAL ORDER NO.DEO-20-032 CERTIFICATE OF FILING AND SERVICE y I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with the undersigned Agency Clerk, and that true and correct copies have been furnished to the U following persons by the methods indicted this.`, day of December,2020. M 21 _ ........... y Ages , `lerk Florida Department of Economic Opportunity 107 East Madison Street,MSC 110 Tallahassee, FL 32399-4128 0 3 Bv U.S.Mail The Honorable Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings •2 The DeSoto Building 1230 Apalachee Parkway Tallahassee,Florida 32399-3060 Bar U.S. and Electronic Mail: Roget V. Bryan, Esquire M Islamorada,Village of Islands 86800 Overseas Highway U, Islamorada, Florida 330336 roget.bryan@islamorada.fl.us a Richard J. Grosso, Esquire Richard Grosso, P.A. 6511 Nova Drive, Mail Box 300 0 Davie,Florida 33317 U. grosso.richard@yahoo.com LU Sarah M. Hayter, Esquire Shai Ozery, Esquire LU Robert Hartsell, P.A. 61 Northeast I'Street, Suite C Pompano Beach,FL 33060 U �Pc� ,fix � �Ca.�.ik�� ce1�"%a„ r�➢.� 26 Packet Pg.3578 Q.3.1 FINAL ORDER NO.DEO-20-032 Christopher B. Deem,Esquire y Nicola J. Pappas,Esquire Barton William Smith, Esquire Law Firm of Smith Hawks, PL .0 r 138 Simonton Street Key West, Florida 33040 g 21 nikki@smithhawks.com as Shawn D. Smith, Esquire y George B.Wallace,Esquire o City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 Key West,Florida 33040 gwallace@cityofkeywest-fl.gov r 0 An y r E M r U a 0 M a 0 LL LU LU r E M U r r 27 Packet Pg.3579 Q.3.1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS y r CECELIA MATTINO, M U Petitioner, g 21 vs. Case No. 18-625OGM M as CITY OF MARATHON,FLORIDA, y 0 Respondent. / U 0 NAJA GIRARD, 0 3 Petitioner, VS. Case No. 19-1526GM 0 CITY OF MARATHON,FLORIDA, y Respondent. +� r CATHERINE BSOSWORTH, Petitioner, M r U VS. Case No. 19-1839GM CITY OF MARATHON, FLORIDA, �0 a Respondent. M RECOMMENDED ORDER ON REMAND U. LU A duly-noticed final hearing was held in this matter in Marathon, Florida, on December 9 through 13, 2019, before Suzanne Van Wyk, an Uj Administrative Law Judge assigned by the Division of Administrative Hearings. U r r Q Exhibit"N' Packet Pg.35780 Q.3.1 APPEARANCES For Petitioners: Richard J. Grosso, Esquire y Richard Grosso, P.A. 6511 Nova Drive, Mail Box 300 Davie, Florida 33317 M U Sarah Hayter, Esquire g Shai Ozery, Esquire 21 Robert Hartsell, P.A. M 61 Northeast 1st Street, Suite C Pompano Beach, FL 33060 y 0 For Respondents City of Marathon; and Islamorada, Village of Islands, Florida : `o Nicole Pappas, Esquire Barton Smith, Esquire Smith Hawks, PL 138 Simonton Street r Key West, Florida 33040 0 .y For Respondent, City of Key West: �. y r George Wallace, Esquire � City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 M Key West, Florida 33040 U as STATEMENT OF THE ISSUE CL Whether City of Marathon("Marathon") Comprehensive Plan Amendment 2018-01, adopted on October 23, 2018 (the "Marathon Plan Amendment"); -20 City of Key West ("Key West") Comprehensive Plan Amendment 19-06, adopted on April 4, 2019 (the "Key West Plan Amendment"); and Islamorada, U- Village of Islands ("Islamorada") Comprehensive Plan Amendment 19-03, adopted on March 5, 2019 (the "Islamorada Plan Amendment") (collectively, LU U r r 2 Exhibit"A" Packet Pg.35781 Q.3.1 the "Plan Amendments"), are "in compliance," as that term is defined in section 163.3184(1)(b), Florida Statutes (2019).1 0 PRELIMINARY STATEMENT M On November 26, 2018, Petitioner, Cecilia Mattino, filed a Petition with g the Division of Administrative Hearings ("Division") challenging the 21 M Marathon Plan Amendment as not based on relevant and appropriate data and analysis and internally inconsistent with the City of Marathon 0 Comprehensive Plan (the "Marathon Plan"), among other allegations, in cs violation of the Community Planning Act, chapter 163, part II, Florida Statutes ("the Act"). Ms. Mattino's petition was assigned to the undersigned as Case No. 18-6250. r On March 1, 2019, Petitioner, Naja Girard, filed a Petition with the y Division challenging the Key West Plan Amendment as violative of the Act on � many of the same grounds. Ms. Girard's Petition was assigned to the undersigned as Case No. 19-1526. M On April 9, 2019, Petitioner, Catherine Bosworth, filed a Petition with the U Division challenging the Islamorada Plan Amendment as violative of the Act ®a on many of the same grounds as the other Petitioners. Ms. Bosworth's a Petition was assigned to Administrative Law Judge Francine Ffolkes as Case No. 19-1839. That case was transferred to the undersigned on April 22, 2019. M U. Petitioners filed an Amended Joint Motion to Consolidate ("the Motion") 0 Uj the three cases, to which Respondents, Marathon and Islamorada, filed responses in opposition. Following a telephonic hearing on the Motion, the Uj r undersigned entered an Order of Consolidation on May 10, 2019. U 1 Except as otherwise noted, all references to the Florida Statutes are to the 2018 version, which was in effect when the Plan Amendments were adopted. 3 Exhibit"A" Packet Pg.3582 Q.3.1 The consolidated cases were scheduled for final hearing on October 7 through 11, 2019; however, due to the undersigned's family medical y r emergency, the final hearing was continued and rescheduled to December 9 through 13, 2019. U M g The final hearing commenced as rescheduled in Marathon, Florida. Petitioners testified on their own behalves, and offered the testimony of: as Rebecca Jetton, accepted as an expert in comprehensive planning and 0 planning in the Florida Keys; Martin Senterfitt, the Monroe County Director cs of Emergency Management; and Richard F. Ogburn, accepted as an expert in comprehensive planning. Petitioners introduced the following Exhibits which were admitted in evidence: 2, 5, 6, 8, 10, 11, 34, 39, 47, 48, 54, 55, 60, 70, 71, 73 through 77, 83, 86 through 91, 94, 97, 100 through 102, 105, 106, 108, 117, r 118, 127 through 129, 131, 139 (appendix 1C), 140, 147, 151, 158, 188, 189, .y 221, 223, and 228. Petitioners proffered Exhibit 111, which was not admitted g in evidence, but travels with the record of this proceeding. Respondents offered the testimony of: George Garrett, Marathon's E M planning director; Ty Harris, Islamorada's planning director; and Patrick U Wright, Key West's former planning director; each of whom is accepted as an expert in comprehensive planning; Michael Alfieri, accepted as an expert in o CL hydrogeology and karstology; William Precht, accepted as an expert in marine ecology; and Joaquin Vargas, accepted as an expert in transportation planning. LU Respondents introduced Exhibits 1 through 17, 20 through 66, 68 through 83, 85 through 131, 133, and 135 through 153, which were admitted in LU r evidence. E U r r 4 Exhibit"A' Packet Pg.3583 Q.3.1 The parties received the five-volume Transcript of the final hearing on February 3, 2020,2 and on February 6, 2020, Petitioners requested an extension of time to file proposed recommended orders by March 13, 2020, C which was granted. The parties' Proposed Recommended Orders were timely filed and have been carefully considered by the undersigned in the g preparation of this Recommended Order. M a Evidentiary-Considerations y 0 Petitioners sought to introduce the deposition testimony of two additional witnesses: Kathleen McKee and Donald Maynard. While the deposition transcripts were admitted, they constitute hearsay for which no exception `o 3 under either section 90.803 or 90.804, Florida Statutes, applies. Section 90.803(22), which provides an exception from hearsay for former testimony r given in a deposition taken in the course of the same proceeding, if the party .y against whom the deposition is offered had the same motive to develop the testimony, has been declared unconstitutional. See Grabau v. Dept of Health, 0 816 So. 2d 701, 709 (Fla. 1st DCA 2002). Further, Petitioners were unable to E make the required showing of unavailability in order to introduce the former M testimony of the two witnesses under the hearsay exception provided in U section 90.804(2). Petitioners offered no non-hearsay evidence to corroborate the hearsay depositions of Ms. McKee and Mr. Maynard. o a Respondents objected to the introduction of a number of exhibits relied upon by Petitioners' expert planning witness, Ms. Jetton, in formulating her LL opinions regarding whether shallow injection wells contribute to nearshore 0 LU water pollution. The articles were written by marine scientists, biologists, microbiologists, chemists, and other experts, and published in a variety of scientific journals. An expert may rely upon facts or data of which the expert a) n _ r U M 2 The official Transcript was not filed with the Division until March 16, 2020, although the parties provided the undersigned with a copy prior to that date. 5 Exhibit"A" Packet Pg.35784 Q.3.1 does not have personal knowledge, if the facts and data are the type reasonably relied upon by experts in the particular field to support the y r opinion. See § 90.704, Fla. Stat. The expert may even rely upon inadmissible evidence (i.e., hearsay) if the evidence is of a type "reasonably relied upon by .0 r M experts in the subject to support the opinions expressed[.]"I . In this case, U g Respondents' objections are well-taken. Ms. Jetton is an expert in 0) 21 comprehensive planning, very experienced and well-versed in the planning M as history of the Keys, particularly as a former e ployee of the state agency y with oversight over planning and development in the Keys, However, s. Jetton is riot a biologist, chemist, marine scientist, or other scientific 0 expert who would typically rely upon the studies and publications in 3 scientific journals for formulating an opinion on, for example, "the fate and transport of sewage in the subsurface environment and the potential for r contamination of xnaxmizae surface stars[.]" o y The documents on which Ms. Jetton relied in formulating her expert planning opinions were admitted, but those documents remain uncorroborated hearsay. The undersigned has given the appropriate weight to Ms. Jetton's testimony on these issues. r U as Remand v_._. 0 The undersigned's Recommended Order was entered on April 24, 2020, C and forwarded to the Department of Economic Opportunity ("DEO") for 20 issuance of a final order. Following the consideration of the parties' 0 Exceptions to the Recommended Order, DEO remanded these cases to the LL UJI undersigned for the "limited purposes of issuing Findings of Fact and Conclusions of Law" on the issue of"whether the plan amendments establish r E 3 John H.Paul, Viral Tracer Studies Indicate Contamination of Marine Waters by Sewage � U Disposal Practices in Key Largo,Florida,Applied and Envtl.Microbiology,2230-34(June 1995). 6 Exhibit"A" Packet Pg.3585 Q.3.1 meaningful and predictable standards as required by section 163.3177(1), Florida Statutes." y r C FINDINGS OF FACT The_Parties and Standing M 1. Ms. Mattino resides in Marathon with her daughter and her fiance. She g submitted written objections to Marathon regarding the Marathon Plan 21 M Amendment prior to the October 23, 2018 public hearing at which Marathon adopted the Plan Amendment. 0 2. Ms. Mattino's daughter is severely disabled, requires specialized cs equipment (including a specialized wheelchair), and requires full-time care, for which Ms. Mattino relies upon a variety of caretakers. Her daughter has to be transported in a specially-equipped vehicle to accommodate the wheelchair and other equipment. r C 3. In the event Ms. Mattino is required to evacuate for a hurricane, she y will need to bring an additional vehicle to transport her daughter's medical gam. equipment, which requires additional personnel. a) 4. Prolonged car rides are dangerous for Ms. Mattino's daughter because C she has a seizure disorder that worsens when she is aggravated or stressed. M Prolonged car rides are also stressful for Ms. Mattino, who has high blood U pressure and has had several heart attacks. 5. Ms. Mattino evacuated for Hurricane Irma and testified that she a encountered heavy traffic, which was made more stressful by the need to stop approximately every two hours to attend to her daughter's medical needs. 6. Ms. Mattino claims that if the Plan Amendments increase the amount - of time it takes her to evacuate the Florida Keys before a hurricane, it would 0 LU cause additional stress and would put her and her daughter's health at risk. Ms. Mattino maintains these concerns are unique to her and her family and LU r that emergency evacuation is more difficult and dangerous for her and her family than it is for the general public. U r r 7 Exhibit"A" Packet Pg.35786 Q.3.1 7. Ms. Bosworth resides in Islamorada with her daughter, son-in-law, and their two children. She submitted written objections to the Islamorada Plan y r Amendment prior to the April 4, 2019 public hearing at which Islamorada adopted the Plan Amendment. 8. Ms. Bosworth previously evacuated for Hurricanes Andrew and Irma, g which required preparation time to gather her pets, pack pet supplies, and secure her boat, as well as secure her outdoor belongings and put up her as hurricane shutters. Securing her boat and putting up her shutters requires the assistance of her son-in-law. Ms. Bosworth believes her circumstances are unique because her son-in-law is a fire fighter and paramedic in Parkland, Florida, and is not always available to help her prepare her property for a hurricane. 9. Ms. Bosworth claims that if traffic congestion increases or worsens as a r result of the Plan Amendments, it would affect her and her family because o .y she would be concerned that she would get stuck on the highway while trying to evacuate for a hurricane. Further, Ms. Bosworth testified that she and her family enjoy going out on the boat and snorkeling and that if Islamorada's nearshore water quality became degraded or impaired it would affect her M quality of life. U 10. Ms. Girard is a resident of Key West. She submitted oral or written objections to the Key West Plan Amendment prior to the March 5, 2019 CL public hearing at which Key West adopted the Plan Amendment. 11. Ms. Girard testified that, due to her and husband's marine-based 20 business and residential tenants, she and her husband would wait until the very last minute to evacuate regardless of when an evacuation advisory was LL issued by the Monroe County Emergency Management Office. 12. Ms. Girard did not evacuate for Hurricane Irma or any other hurricane since moving to a site-built home in Key West in 2007.4 U 4 Ms.Girard previously lived on vessels in the Key West area. 8 Exhibit"A" Packet Pg.35787 Q.3.1 13. Marathon, Islamorada, and Key West, are all municipalities with the duty and authority to adopt a comprehensive plan, pursuant to section 163.3167, Florida Statutes (2019). 0 Backvround M 14. In 1972, the Florida Legislature enacted the Environmental Land and M g Water Management Act, which provided the basis for state designation of 21 M Areas of Critical State Concern ("ACSC").5 The statute provides criteria for designating an ACSC, which is generally"[a]n area containing ... 0 environmental or natural resources of regional or statewide importance," cs such as wildlife refuges, aquatic preserves, and state environmentally endangered lands. § 380.05(2), Fla. Stat. (2019).6 15. In 1974, the Florida Keys (Monroe County and its municipalities) were designated an ACSC due to the area's environmental sensitivity and r mounting development pressures. .0 0 16. The designation was effectuated by the adoption in 1979 of section 380.0552, Florida Statutes, the "Florida Keys Area Protection Act." The Act establishes the legislative intent to establish a land use management system that, among other things, "protects the natural environment," "conserves and M promotes the community character," "promotes orderly and balanced growth U in accordance with the capacity of available and planned public facilities and services," and"promotes and supports a diverse and sound economic base" in o a the Keys. § 380.0552(2), Fla. Stat. (2019). _. M 5 The Environmental Land and Water Management Act was enacted prior to the 1985 r- Growth Management Act,chapter 163,part II,when most local governments did not have U. programs and personnel to guide development in a manner that would ensure protection of Lu natural resources. 6 The statute contains additional specific criteria for designation,including the economic and Uj ecological value of the area;presence of critical habitat of any state or federally designated threatened or endangered plant or animal species;inherent susceptibility to substantial development due to its geographical location or natural aesthetics;and the anticipated effect of development on the environmental or natural resources of regional or statewide U importance. §380.05(2), Fla.Stat. (2019). 9 Exhibit"A' Packet Pg.3588 Q.3.1 17. The ACSC designation transferred all local Keys planning and development review and approval rights to the state land-planning agency, y r the Florida Department of Community Affairs ("DCA').7 While the Keys local governments can adopt and amend their plan and land development M regulations, those provisions do not take effect until approved by U g administrative rule. See § 380.0552(9), Fla. Stat. 18. In 1986, Monroe County updated its comprehensive plan to be as consistent with the 1985 Growth Management Act.8 Several administrative y challenges followed, initiated by both DCA and private entities and cs individuals. `o 19. Monroe County revised its comprehensive plan in 1993 to resolve many of the issues raised in the litigation, but those amendments were again challenged in administrative proceedings. r 20. The second challenge culminated in a final order of the Administration o .y Commission in 1995 finding the 1993 Monroe County Plan not"in compliance," with the Act and the Principles for Guiding Development in the Keys ACSC ("the Principles"), which are adopted by rule of the Administration Commission. The Final Order found that"the environment of M the ... Keys is the very essence of Monroe County's economic base. The U uniqueness of the environment ... and the current condition of the environment must be addressed in any growth management decisiono."DCA CL v. Monroe Cty., 1995 Fla. ENV LEXIS 129 (Fla. ACC 1995). 21. The litigation highlighted aspects of the Florida Keys ecosystem as 20 having limited capacity to sustain additional impacts from development. Of particular concern was the declining water quality of the nearshore L` LU environment due to lack of central sewer facilities, the loss of habitat for LU r 7 The 2011 Legislature transferred the DCA Division of Community Planning,via Type II transfer,to the Department of Economic Opportunity.See ch.2011-142, § 3,Laws of Fla. U S The Growth Management Act was significantly amended and renamed the"Community Planning Act,"by chapter 2011-142, Laws of Florida. 10 Exhibit"A" Packet Pg.3589 Q.3.1 state and federally-listed species, public safety in the event of hurricanes, and a deficit of affordable housing. Relevant to Petitioner's challenge, the Final Order found that the ability of the nearshore waters of the Keys to withstand additional degradation from sewage and stormwater discharges M "has already been reached or even exceeded," and that development of the g Keys "is degrading the nearshore waters at or over carrying capacity." 21 M 22. The 1995 Final Order required Monroe County to undertake certain "remedial actions" in order to bring the Plan into compliance with both the 0 Act and the Principles, which are adopted in section 380.0552. cs 23. Among the remedial actions was the requirement that Monroe County establish a Permit Allocation System ("PAS") for new residential development. The Administration Commission explained, as follows: The [PAS] shall limit the number of permits issued r for new residential development ... provided that o the hurricane evacuation clearance time does not An exceed 24 hours .... The County shall adjust the allocation based upon environmental and hurricane evacuation constraints and ... to account for permits and vested units in ... the Keys. 24. Monroe County amended its plan in 1996 to implement the PAS and M other remedial actions, and adopted a "carrying capacity approach" to U a planning in the ACSC. 25. The amended comprehensive plan was approved by rule of the CL Administration Commission—Florida Administrative Code Rule 28-20, which also established a comprehensive work program designed to improve the 0 M Keys' water quality and protect the habitat of threatened and endangered LL species. LU 26. The rule was subject to another administrative challenge, and the LU Division issued a final order upholding the rule in 1997. See Abbott V. Admin. Comm'n, Case No. 96-2027RP (Fla. DOAH May 21, 1997). U r r 11 Exhibit"A" Packet Pg.375970 Q.3.1 The Carrying Calacity Stud 27. The work program adopted by the rule included the requirement to y r conduct a "carrying capacity analysis" for the Florida Keys. Florida Administrative Code Rule 28-20.100 provided, "The carrying capacity M analysis shall be designed to determine the ability of the Florida Keys U g ecosystem, and the various segments thereof, to withstand impacts of additional land development activities." The rule established that the a analysis should be based on the findings adopted by the Administration y Commission on December 12, 1995, "or more recent data that may become available in the course of the study," and upon the benchmarks of, and all o adverse impacts to, the Keys natural land and water systems, in addition to the impacts of nutrients on marine resources. 28. The study was undertaken beginning in 1996 and was sponsored r jointly by DCA and the Army Corps of Engineers ("the Corps") and involved o .y 38 separate state and federal agencies. The study modeled a series of future development scenarios, as well as redevelopment and restoration scenarios. 29. The Final Report9 of the Florida Keys Carrying Capacity Study ("FKCCS") was issued in September 2002. The major findings include the M following: U ® Development suitability in the Florida Keys is extremely restricted, due to the following characteristics: Existing development has CL displaced nearly 50 percent of all upland habitats, and remaining uplands are distributed in patches of 10 or fewer acres; almost every native area is potential habitat for one or more endangered species; over 50 percent of all U. private lands are wetland parcels, and development suitability of remaining lands is low or marginal due to open space requirements, lack of infrastructure, and other a' r factors. w_ ..... _ _ .... U s The document introduced in evidence is titled"Draft Final Report."According to the r testimony of Rebecca Jetton, no other final report was issued by the study sponsors. 12 Exhibit"N' Packet Pg.3 991 i Q.3.1 • Future growth is limited in the next 20 years— less than 10 percent growth in the number of dwelling units and population—due to infrastructure limitations. Permitted capacity of potable water withdrawals was exceeded in 0 1999 and 2000; improvement of hurricane evacuation clearance times is dependent on g structural improvements to U.S. Highway 1, 21 which will increase government costs, nutrient loading, and indirect impacts to wildlife and habitats; and residential capacity is limited to y 6,000 units in order to maintain the state- mandated level of service for roadways. 0 • All six future scenarios would result in disproportionate increase in government 3 expenditures with respect to increased population, which will require increased `= taxation on both local residents and tourists. r 0 • The existing data "are insufficient to establish quantitative, predictive relationships between land use or development and the marine environment." The study documented human impacts to the marine ecosystem and species. The study underscores the benefits of wastewater treatment, "but other impacts are M more related to resource management than to land development." 30. The study provides the following four major guidelines for future CL development in the Florida Keys: 1. Prevent encroachment into native habitat. A 0 wealth of evidence shows that terrestrial habitats and species have been severely affected by LL development and further impacts would only LU exacerbate an already untenable condition. LU 2. Continue and intensify existing programs. Many r initiatives to improve environmental conditions and quality of life exist in the Florida Keys. They include land acquisition programs, the wastewater and stormwater master plans, ongoing research 13 Exhibit"A" Packet Pg.35 22 Q.3.1 and management activities in the Florida Keys National Marine Sanctuary, and restoration efforts throughout the Keys. 3. If further development is to occur, focus on redevelopment and infill. Opportunities for additional growth with small, potentially U acceptable, additional environmental impacts may 0) occur in areas ripe for redevelopment or already 21 disturbed. 4. Increase efforts to manage the resources. Habitat management efforts in the Keys could increase to effectively preserve and improve the ecological values of remaining terrestrial ecosystems. 0 31. Rule 28-20.001 required the findings of the FKCCS to be implemented by"adoption of all necessary [comprehensive plan] amendments to establish a rate of growth and a set of development standards [to] ensure that any and r all new development does not exceed the capacity of the county's environment o .y and marine system to accommodate additional impacts." The study would provide the state and the Keys local governments with an analytical tool to support future comprehensive plan amendments and revisions of land development regulations. M 24-Hour Hurricane Evacuation 32. In 2006, following the publication of the FKCCS, the Legislature amended section 380.0552 to require the local governments to adopt CL provisions in their comprehensive plans to "protect the public safety and welfare in the event of a natural disaster by maintaining a hurricane 20 evacuation clearance time for permanent residents of no more than 24 hours." M § 380.0552(4)(e)2., Fla. Stat. (2007). The requirement remains in effect and is L- LU enforced by the state through review of local government plan amendments. See § 380.0552(9)(a)2., Fla. Stat. >� LU ROGO and BPAS 33. Principle among the Monroe County amendments to implement the remedial actions ordered by the Administration Commission was the PAS, 14 Exhibit"A" Packet Pg.3593 Q.3.1 implemented in the County by a Rate of Growth Ordinance ("ROGO"). The current version of the administrative rule approving the County's comprehensive plan is rule 28-20.140, which also governs and approves 0 ROGO. The rule provides the maximum number of permits for residential M development that may be issued annually, with a split between affordable g and market rate units. The current cap is 197 units per year, with a 21 M minimum of 71 units allocated for affordable housing and a maximum of 126 market rate units. Any unused affordable housing units "roll over" for 0 affordable housing units the following year. Other unused allocations may be U rolled over and used for affordable housing units or"administrative relief."lo `0 34. Islamorada and Marathon were not yet incorporated when the comprehensive plan litigation began and subsequent remedial measures were issued. Since their incorporation, each of the cities has been brought under r the umbrella of the ACSC designation. The cities' respective comprehensive y plans and land development regulations are subject to the same review and approval authority of the Administration Commission, and are subject to similar work plans to implement the remedial measures required by the commission. The applicable administrative rules are chapter 28-19 for M Islamorada and chapter 28-18 for Marathon. U 35. Marathon and Islamorada have permit allocation requirements ®a similar to Monroe County, known as the Building Permit Allocation System a ("BPAS"). Their respective administrative rules provide the annual maximum number of permits and the split between affordable and market rate units, as well as the rules governing rollover of unused allocations.11 LL LU 10 Unused allocations may be provided to applicants who have been denied a permit, despite LU having met all the requirements of the land development regulations, if they have been in the allocation system for a significant number of years. 11 Marathon's annual cap is 30 units and Islamorada's is 28(22 market rate and 6 affordable U housing). 15 Exhibit"A" Packet Pg.35 44 36. BP AS is a competitive system. Permit applications are awarded points based on their alignment with specific development criteria, such as presence y r or absence of wetlands or protected habitat, and availability of public services. Those applications with the highest points are awarded available permits for the P year. ' cork Prggra 5. 7. Each of the municipalities' governing rules includes a work program, M as broken down into the following categories: (1) carrying capacity 0 implementation.; (2) wastewater implementation,- and (3) wastewater project cs implementation, Marathon's work program includes a fourth category— `o stor .°water treatment facilities. . The specific activities of each work program differ somewhat. For example, with respect to environmentally-sensitive lands, Isla orada was r required to apply for land acquisition funds, while Marathon was required to 0 .y apply and adopt land development regulations limiting permit allocations in � high quality habitats, Monroe County was required to adopt conservation planning mapping into its comprehensive plan. E 39. The wastewater implementation and wastewater project � M implementation sections of the work programs are of high importance. The U litigation highlighted the declining water quality of the nearshore environment due to a lack of central sewer facilities. The Keys' wastewater treatment "system" consisted of a hodgepodge of some 23,000 septic: tanks, CL 2,800 cesspits, and at least 249 small package treatment plants. 20 40. The work program represents a monumental, long-term, and expensivel2 infrastructure project to build a central sewer system in the L` LU Keys, followed by a program to require existing developments to connect to LU___..... ...._ ._. ___. w_ 12 In both 2012 and 2016, the Florida:Legislature authorized expenditure of Everglades restoration bond funds for Florida Treys wastewater and storrawater management projects; � and.,in 2016, appropriated 5 million in.Florida Forever funds for said projects for the E 2016/2017 year.More than. 13 million was included in the general appropriations act for U said projects in the 2017/2018 year. 1 Exhibit"A" Packet Pg.3595 Q.3.1 the system, and land development regulations to direct new growth to areas served by central wastewater treatment facilities. Each local government work program includes specific target dates to obtain funding for, and 0 construction of, each component of the sewer system, as well as specific target M dates for initiating and completing connections of existing development to the M g newly-constructed system. 21 M 41. Monroe County's work program also includes directives for funding stormwater improvement projects and deadlines for completing said projects. 0 ACSC Annual Reports 42. The local governments and the Department of Economic Opportunity ("DEO") are required to report to the Administration Commission annually documenting"the degree to which work program objectives for the work program year[13] have been achieved." r 43. Achievement of work program objectives is directly tied to the BPAS y and ROGO—if the Administration Commission finds that work program objectives have not been achieved, it can reduce the unit cap for residential development by 20 percent for the following year.14 Additionally, through the BPAS and ROGO, the local governments are required to direct new growth to M areas served by central sewer. Each application for building permit is U awarded an additional four points15 if the parcel is served by central sewer ®a meeting statewide treatment standards. o a 44. In the 2017 ACSC annual report, the most recent report for which the parties requested official recognition, Islamorada reported it had connected 85 percent of potential customers (with another five percent in the - uJ 13 The work program year runs from July of one year to June of the following year. 14 The Islamorada rule does not contain this provision; however,it does provide that, if the LU Administration Commission determines progress has been made for the work program year, then the Commission"shall restore the unit cap"of 28 allocations for the following year.It is unclear whether Islamorada was already under penalty when the new rule was adopted or whether this is an oversight in the rule. U r r Q 15 In Islamorada,the award is two additional points. 17 Exhibit"A' Packet Pg.375976 Q.3.1 application process), Marathon had connected 97 percent, and Monroe County had an overall connection rate of 86 percent (with higher percentages y r for specific individual treatment facilities). Cite of Key- West - _. 45. Key West challenged its inclusion in the original ACSC designation, U g and, in 1984, was designated as a separate area of critical state concern ("the Key West ACSC"), effectuated by the adoption of Florida Administrative Code as Chapter 28-36. 46. The Key West ACSC is subject to the same land planning and development regulation oversight as the Florida Keys ACSC, and the Key West comprehensive plan and land development regulations are approved by the state through Florida Administrative Code Chapters 28-37 and 9B-30. 47. Key West is subject to separate principles for guiding development r than the Florida Keys ACSC, which are found in rule 28-36.003. Key West is o .y served by central sewer and does not have work program tasks. Hurricane_Evacuation Clearance Time 48. The work program requires the local governments within the Florida Keys ACSC to enter into a Memorandum of Understanding ("MOU") with the M DEO, the Division of Emergency Management, and each of the other Keys U local governments, to stipulate to the input variables and assumptions for utilizing the Florida Keys Hurricane Model, or other models acceptable to CL DEO, to accurately depict hurricane evacuation clearance times for the population in the Keys. The work program required, by July 1, 2012, the local 20 governments to run the model with the agreed upon variables from the MOU "to complete an analysis of the maximum build-out capacity for the ACSC, a- LU consistent with the requirement to maintain a 24-hour evacuation clearance time and the [FKCCS] constraints." 49. DEO appointed a Hurricane Evacuation Clearance Time Work Group (the "Work Group") including members of each of the six local governments and representatives from the tourism industry, chambers of commerce, and 18 Exhibit"A" Packet Pg.3597 Q.3.1 community organizations, as well as from state and federal agencies. The Work Group held a series of public workshops to consider hurricane model inputs—census data, behavioral studies, hurricane forecasting, military evacuation procedures, traffic flow rates, and number and location of vacant platted lots. U g 50. The Work Group selected the Division of Emergency Management's 21 Transportation Interface for Modeling Evacuations ("TIME") as the model to accurately depict evacuation clearance times for the population of the Keys +� ACSC and the Key West ACSC ("the Florida Keys ACSCs"). The Work Group agreed on 10 modeling assumptions, including the number of tourist units, and of those, the number occupied; the number of mobile home units and evacuation participation rates; and the number of site-built units, the occupancy rate, and participation rate of residents in those units, among r other important variables. The inputs and assumptions were tested by .y modeling over 100 evacuation scenarios. 51. The Work Group presented its findings on June 8, 2012, and selected evacuation scenario M5, which provided for continuation of then-existing E annual building permit allocations that were adopted by rule or M comprehensive plan amendment (with the exception of Key Colony Beach and U Key West). Scenario M5 produced an evacuation clearance time of 24 hours with a future allocation of 3,550 new residential building permits. o CL 52. Notably, scenario M5 assumed that military, mobile home residents, and tourists would evacuate during Phase I of what DEO described as a two- phase evacuation plan. Further, M5 assumed that 15 percent of existing LL mobile homes would convert to site-built homes. 0 LU 53. In the two-phase evacuation plan, tourists are ordered to evacuate 48 hours in advance of predicted tropical storm force winds, and residents of LU r mobile homes are ordered to evacuate 36 hours in advance. The model predicted an evacuation clearance time of 16 hours and 30 minutes for U r r 19 Exhibit"A" Packet Pg.3598 Q.3.1 Phase I using tourist occupancy rates for July, and 17 hours and 30 minutes using tourist occupancy rates for the Labor Day weekend. y r 54. Under Scenario M5, residents of site-built units are ordered to evacuate 30 hours in advance, giving those residents six hours of lead time to .° M secure property and make other preparations. Under scenario M5, all site- U g built residences were evacuated within 24 hours of predicted tropical storm force winds, including an additional 3,550 units. As such, the work group as determined 3,550 units to be the maximum buildout of the Keys through y 2023 to maintain the 24-hour hurricane evacuation mandate in section cs 380.0552. `o 55. The Work Program directed DEO to "apply the derived clearance time o 3 to assess and determine the remaining allocations for the [ACSC]" and recommend revisions to the allocation rates and distribution of allocations to r the six local governments, as well as any recommended changes to the local o .y government comprehensive plans. DEO completed that task, and determined that a maximum of 3,550 additional units could be distributed over the next ten years, beginning in July 2013. E E 56. On November 5, 2012, Monroe County, Marathon, Islamorada, Key Colony Beach, Key West, the City of Layton, the Division of Emergency r Management, and DEO, entered into an MOU agreeing on the use of the TIME model, as well as the data, input variables, and assumptions to be CL utilized in model runs. The following"whereas" clause succinctly provides the results of the M5 scenario: 20 WHEREAS, from among the scenarios provided by M DEO at the June 8, 2012, Work Group meeting, ILL Scenario M5 included the 2010 Census site-built LU units (43,760 units); the maximum number of residential building permits for new construction for all Local Governments per year for 10 years UJ (annually, County 197, Marathon 30, Islamorada 28, Key West 90, Key Colony Beach 6, and Layton 3); 1,248 mobile home units projected to convert to U site-built units; the exclusion of 870 dwelling units 20 Exhibit"A" Packet Pg.3599 Q.3.1 on the Naval Air Station; as well as two (2) functional evacuation lanes from MM 108-126. Further the work group recommended Scenario M5 with the provision that the City of Key West would transfer annually (by July 13th) any remaining or o unused (90 allocations) allocations to the other Local Governments based upon the Local g Governments' ratio of vacant land. 0) 21 M 57. Technical corrections made after the June 8, 2012 meeting, the census- based number of site-built units was revised to 43,718 and the Key West allocation was revised to 91. 58. The MOU also memorializes the following staged evacuation 0 procedure: • Approximately 48 hours in advance of tropical storm winds, mandatory evacuation of non-residents, visitors, RVs, travel trailers, live-aboard 0 vessels (transient and non-transient), and military personnel. • Approximately 36 hours in advance, mandatory evacuation of mobile- home residents, special needs residents, and hospital and nursing home patients. • Approximately 30 hours in advance, mandatory phased evacuation of M permanent residents by evacuation zone.[16] as 59. The phased evacuation procedure is also adopted in each of the local government comprehensive plans, except Key West, which adopted the 0 CL procedure by resolution. Affordable Housing 0 60. The need for additional affordable housing in the Keys is well LL documented, and the parties stipulated, generally, to the need. LU 0 LU r E M . U is There are five hurricane evacuation zones in the Keys designated by mile marker numbers along US 1. 21 Exhibit"A" Packet Pg.36700 Q.3.1 61. Numerous factors contribute to the need for affordable housing, including, but not limited to, the high cost of living, higher construction costs, y r the high cost of land, as well as the limited supply and high demand for real estate and housing throughout the Florida Keys. The need for affordable M housing was exacerbated by Hurricane Irma, which made landfall in the U g Florida Keys in September of 2017 and destroyed approximately 400 mobile homes, "permanent RV's," and ground-level single-family homes that served a as affordable housing, many for members of the Keys workforce. y 62. Most of the site-built homes destroyed were not built to current building code standards, but were "grandfathered" from code compliance. o 0 Those structures must be rebuilt to code, which will likely take them out of financial reach of members of the Keys workforce. 63. Provision of affordable housing is an important aspect of the r regulatory framework for planning in the Keys. o .y 64. The litigation over the Monroe County comprehensive plan highlighted a deficit of affordable housing in the Keys.Among the Principles is the requirement to"[make] available adequate affordable housing for all sectors of the population" of the Keys. § 380.0552(7)(0, Fla. Stat. When designating the ACSC, the Legislature expressed the intent to "[p]rovide affordable housing in close proximity to places of employment" in the Keys. § 380.0552(2)(d), Fla. Stat. The Keys,WQrkforce_Housin+ Initiative C 65. Shortly after Hurricane Irma, Marathon began discussions with DEO 20 about the possibility of obtaining additional building permit allocations for M workforce-affordable housing. L` LU 66. In November 2017, Marathon passed Resolution 2017-99 requesting the allocation of 300 affordable housing allocations from DEO with approval LU of the Administration Commission. 67. DEO determined there were not enough building permits available under the current regulatory structure to address the need for affordable 22 Exhibit"A" Packet Pg.36701 Q.3.1 housing in the Florida Keys.As a result, DEO developed the Keys Workforce Affordable Housing Initiative (the "Housing Initiative")to allow up to +� r 1,300 new building permit allocations for workforce housing throughout the Florida Keys, with an initial allocation not to exceed 300 per local M government. g 68. Under the Housing Initiative, the additional units are to be deed 21 - M restricted for workforce affordable housing and required to evacuate in Phase I, along with tourists, visitors, mobile home residents, and military 0 personnel. � cs 69. The Administration Commission approved the Housing Initiative at the June 13, 2018 meeting. In support of the Housing Initiative, DEO staff 3 made a presentation asserting that the Phase I evacuation (under the existing staged evacuation plan) can be accomplished in 17.5 hours, leaving r additional capacity of 6.5 hours in Phase I. DEO concluded that the Housing y Initiative "will not interfere with the 24-hour evacuation model and satisfies the statutory mandate to provide affordable housing." 70. Following approval by the Administration Commission, DEO worked with Marathon and other local governments to amend their comprehensive M plans to implement the Housing Initiative. r U The Plan Amendments 71. The Marathon Plan Amendment creates a new Future Land Use a ("FLU') goal stating the intent to participate in the Housing Initiative approved by the Administration Commission. It further creates a new FLU Objective establishing a"new limited category" of building permit allocations LL known as "Affordable—Early Evacuation Pool" providing 300 workforce 0 affordable building permit allocations in addition to the allocations identified in chapter 28-18. The Marathon Plan Amendment creates five new FLU UJ r policies. The first allows for distribution of the allocations "at any time" provided applicable Marathon public notice and hearing procedures are U r r 23 Exhibit"A" Packet Pg.36702 Q.3.1 followed and the distribution is based on the BPAS ranking procedures in effect. y r 72. The second policy provides the following"Specific Standards and Requirements for Workforce Affordable Housing": Affordable-Early Evacuation residential units U under this program shall: 0) 21 a. be multifamily structures; as b. be rental units; c. require, at a minimum, adherence to the latest edition of the Florida Building Code[]; 0 d. not be placed in the V-Zone or within the Coastal Barrier Resource Systems; r e. require on-site property management; .2 f. comply with applicable habitat and other locational criteria and densities for multifamily y affordable housing units; g. shall not be placed in any habitat defined as mangroves, saltmarsh & buttonwood, hardwood E hammock, or fresh water wetlands (disturbed categories excepted); U as h. incorporate sustainable and resilient design principles into the overall site design; CL i. ensure accessibility to employment centers and 20 amenities; and M j. require deed-restrictions ensuring: U- LU (i) the property remains workforce-affordable housing in perpetuity; LU r (ii) tenants evacuate during the period in which transient units are required to evacuate; M r r 24 Exhibit"A" Packet Pg.36703 Q.3.1 (iii) rental agreements contain a separate disclosure requiring renters to acknowledge that y failure to adhere to the evacuation requirement could result in severe penalties, including eviction, to the resident; and o M (iv) on-site property managers are formally trained g in evacuation procedures. 21 M 73. The third policy exempts from the early evacuation requirement all first responders, correctional officers, health care professionals, or other first- 0 response workers required to remain during an emergency. 74. The fourth policy requires the workforce-affordable developments to comply with federal accessibility standards. 75. The last policy requires Marathon to provide DEO with an annual report on the implementation of the Housing Initiative, including r documenting the number of workforce-affordable housing units built, y occupancy rates, and compliance with the early evacuation requirement. The report is to be included in the DEO annual work program report to the Administration Commission. 76. Islamorada's plan amendment provides 300 workforce-affordable M building permit allocations in addition to the allocations identified in U chapter 28-19. In all other respects the amendment is identical to the Marathon Plan Amendment. o a 77. The Key West Plan Amendment approves the receipt of 300 workforce- affordable building permit allocations "as well as any additional allocations which may be authorized by the Florida Administration Commission or U. transferred to Key West that are not accepted by other Florida Keys municipalities or Monroe County." Rather than authorizing distribution of the allocation"at any time," Key West authorizes distribution"on a first- come first-served basis and at any time" following public notice and hearing procedures. Allocation of the Key West permits is not required to follow BPAS U r ranking unless the number of applications received exceeds the authorized 25 Exhibit"A" Packet Pg.36704 Q.3.1 allocation. There are also two minor differences in the "Standards and Requirement for Workforce-Affordable Housing" in the Key West Plan y r Amendment: it does not contain the paragraph prohibiting placement of units in buttonwood and hardwood hammock; and it does not require that property M managers be trained in evacuation procedures. Otherwise, the Key West Plan U g Amendment is virtually identical to that adopted by Marathon and M Islamorada. as Petitioners' Challenxaes y 78. Petitioners challenge the Plan Amendments, generally, as inconsistent with the FKCCS and the carrying capacity approach to planning in the Keys. o The two main contentions are hurricane evacuation and environmental concerns. Hurricane Evacuation '^ r 79. Petitioners posit that the Plan Amendments violate the Principles and o .y the MOU171, and render the local government comprehensive plans internally inconsistent, by exceeding the requirement to evacuate the Keys permanent +� population in no more than 24 hours. Petitioners also argue the plan E amendments are not supported by adequate data, and a professionally- M acceptable analysis thereof, on hurricane evacuation clearance times. U 80. At first blush, Petitioners' argument has merit: the Plan Amendments allow up to 1,300 units to be built in the Keys beyond the previously- CL established maximum buildout of 3,550 units through the year 2023. That buildout number was derived directly from the Work Group after agreement 20 on all assumptions and inputs for, and multiple runs of, the agreed-upon TIME model, and identification of the M5 scenario as the best model for LL evacuation of permanent population within 24 hours. LU r 17 As explained in the Conclusions of Law,Petitioners' contention that the Plan Amendments E are inconsistent with the MOU is rejected.Inconsistency with the MOU is not a statutory U compliance issue. 26 Exhibit"N' Packet Pg.36705 Q.3.1 81. It is undisputed that the new residential units to be allocated under the Housing Initiative will house permanent residents. That fact alone is not in direct conflict with the 24-hour evacuation requirement because, as 0 implemented, the evacuation plan requires some permanent residents— M residents of mobile homes, "permanent RVs," live-aboard vessels, and g military personnel—to evacuate in advance of the start of the 24-hour clock. 21 M That requirement is incorporated into the local government comprehensive plans which have previously been found to be "in compliance"—meaning both 0 internally consistent and consistent with the Principles. 82. Petitioners introduced the testimony of Richard Ogburn, a planning expert who has extensive experience with hurricane evacuation modeling in 3 South Florida, including the Keys. Mr. Ogburn was directly involved in the Work Group hurricane evacuation modeling that culminated in the 2012 r report and adoption of the MOUs. As Mr. Ogburn explained, Monroe County y was the first local government in the state to update its hurricane evacuation modeling based on the 2010 census data. It was to be a pilot for updating the r statewide regional evacuation plan utilizing the new census data. 83. Specifically, Mr. Ogburn, who was at the time employed by the South M Florida Regional Planning Council, extracted demographic data from the U 2010 census and created the demographic data base for use with the TIME model. Mr. Ogburn subsequently completed"validation runs" of the TIME o a model results generated by DEO staff during the Work Group process.18 84. In 2013, while Mr. Ogburn was working on the update to the statewide regional evacuation model, Mr. Ogburn discovered some blank cells within LL the census block group data sets in the original spreadsheet he had created LU for DEO. The missing information was the number of vehicles identified within those specific census block groups. With respect to Monroe County, LU r eight of the 76 block groups were missing vehicle data. U 18 The validation process involved input of the data parameters into the model and repeating the same model run scenarios to ensure that the results from the initial runs were replicated. 27 Exhibit"N' Packet Pg.36706 Q.3.1 85. Mr. Ogburn found an alternative data source from which to derive the number of vehicles in the associated census block groups and reran the model y r for purposes of updating the statewide regional model. In 2014, Mr. Ogburn C reported the census data errors to DEO, which requested he rerun scenario M5 after including the missing vehicles. The result was an increase of two- U g and-a-half hours for evacuation of Phase II—a total clearance time of 26.5 hours. as 86. Mr. Ogburn testified that, based on the best-available data on hurricane evacuation clearance times, the evacuation of site-built dwellings in the Keys already exceeds the 24-hour evacuation standard mandate by o statute (and incorporated into Respondents' comprehensive plans). In his opinion, adding units authorized by the Housing Initiative would further exacerbate the problem. r 87. Petitioners introduced other evidence aimed at tearing down the .o An conclusion of the Work Group that the Keys could be safely evacuated in under 24 hours, based on the 2012 TIME model runs. For example, Mr. Ogburn questioned the vacancy rates utilized by the Work Group, which he described as "most likely" too high. Mr. Ogburn cast doubt on the M 100% participation rate assumption, and the assumed 12-hour response U curve, which he testified was unrealistic given that people will not leave at the same rate if the evacuation is ordered at midnight as they would if the o CL order was given at 7:00 a.m. Petitioners likewise introduced evidence casting doubt on the ability of meteorologists to predict storms with accuracy 48 20 hours in advance of landfall. 88. The Keys local government comprehensive plans, as adopted with use LL of the TIME model, and all underlying assumptions and inputs, have previously been determined to be "in compliance." The question of whether LU those assumptions and model inputs are supported by data and analysis is C U r r 28 Exhibit"K Packet Pg.36707 Q.3.1 not properly before the undersigned in this proceeding. The evidence was, for the most part, irrelevant.19 89. The Housing Initiative is grounded on the availability of evacuation C time in Phase I of the agreed evacuation procedure, which is adopted in each M of the local government comprehensive plans. Mr. Ogburn agreed on cross- g examination, that the TIME model was run separately for Phase I and 21 Phase II, that the results from Phase I were not taken into consideration in the data for Phase II, and that if the units are presumed to evacuate in 0 Phase I, it would have no effect on the analysis for Phase II. 90. Notably, when Mr. Ogburn was asked directly whether the additional 1,300 units added to permanent population would cause the Keys evacuation 3 time to exceed 24 hours, Mr. Ogburn testified: If the evacuation takes place ahead of time, it's a r different question and I don't have a clear answer o for that because I have not had the opportunity to An run the model to determine whether or not that would cause the clearance times in the original phase to increase significantly.120] C 91. The 2012 run of the TIME model demonstrated a clearance time in 0 E Phase I of 16 hours and 30 minutes, or 17 hours and 30 minutes, depending r on the transient occupancy rate utilized. 92. Respondents introduced the testimony of Joaquin Vargas, a traffic engineering consultant who was accepted as an expert in transportation C planning, including roadway capacity issues related to hurricane evacuation. Mr. Vargas participated in hurricane evacuation modeling in the Keys in the M C 1990s to determine potential roadway improvements that could reduce Keys LL LU evacuation clearance time. Mr. Vargas was the principal author of the "Miller Model," which was utilized in these studies. LU r C .................... .........0 0 19 Moreover,the evidence served to undercut Petitioners'argument that the best available data and analysis supports the 24-hour evacuation clearance time cap. U r r 20 T2:79;1-6. Q 29 Exhibit"A" Packet Pg.36708 Q.3.1 93. Mr. Vargas' modeling was not based on a two-phased evacuation. Instead, the Miller Model assumed evacuation of all permanent population y r simultaneously in order to identify where roadway improvements would C reduce the evacuation clearance time. M 94. Mr. Vargas introduced the results of a model run of simultaneous U g evacuation of the Keys without units authorized under the Housing Initiative, and a second adding 300 units each for Marathon, Islamorada, and as Key West. The model run without the 900 combined units yielded an y evacuation clearance time of 21 hours and 34 minutes. With the additional �° 900 units, the model yielded a clearance time of 21 hours and 42 minutes. 0 95. This evidence had little relevance because the models are not comparable, and because Mr. Vargas utilized inputs and assumptions that differed greatly from the TIME model runs underlying the carrying capacity r analysis utilized by the Work Group. The Miller Model assumes the .yo evacuation of all permanent residents (including mobile home residents) simultaneously, so it is useless as a comparator to the Phase II run of the C TIME model.Additionally, Mr.Vargas utilized 2000 census data, rather than E E the more recent 2010 data, which Mr. Vargas admitted"w[ould] provide more accurate information," and included inaccurate data, such as non-existent lane segments which inflated capacity on some roadway segments. While Mr. Vargas expressed the opinion that the Miller Model is superior because it CL was designed expressly for the Keys, the fact remains that the existing"in compliance" comprehensive plans are based on use of the TIME model to 20 determine maximum buildout in the Keys. 96. Mr. Ogburn completed a run of the TIME model in 2014 which L- LU included the previously-missing vehicles from the census block groups in Phase I. That rerun produced a clearance time of 19 hours. The best available LU data and analysis (the 2014 rerun) supports a finding that the clearance time C for Phase 1, without the additional units from the Housing Initiative, is 19 hours. Thus, the evidence does not support a finding that the evacuation of 30 Exhibit"A" Packet Pg.36709 Q.3.1 Phase I with the additional 1,300 units cannot be completed within the first 24 hours of a 48-hour evacuation scenario. y r 97. The preponderance of the evidence does not support a finding that the inclusion of the 1,300 units in Phase I will violate the requirement to M evacuate Keys permanent residents in 24 hours or less. M g 98. On the theory that the addition of up to 1,300 residential units in the 21 M Keys will cause the hurricane evacuation clearance time to exceed 24 hours, Petitioners alleged the Plan Amendments are inconsistent with the following 0 provisions of Respondents' comprehensive plans: Marathon: • FLU Objective 1-2.1, which requires Marathon to "ensure the availability of adequate public facilities and services[.]" r • FLU Objective 1-2.2, requiring Marathon to "meet the required 24- o .y hour hurricane evacuation time or other applicable state standard for hurricane evacuation." y r • FLU Objective 1-3.5, requiring Marathon to "manage the rate of new development to ... support safe and timely evacuation prior to a E hurricane." as • Conservation and Coastal Element Policy 4-1.21.2, requiring Marathon a to coordinate with Monroe County in updating policy formulations regarding land use and emergency preparedness and to plan for future land use densities that will not adversely impact the efficiency of hurricane evacuations or increase evacuation times. - LU • Intergovernmental Coordination Element ("ICE") Objective 5-1.1, LU requiring Marathon to maintain coordination mechanisms with the comprehensive plans of Monroe County and adjacent municipalities. E U r r 31 Exhibit"A" Packet Pg.36710 Q.3.1 • ICE Policy 5-1.1.2, requiring Marathon to coordinate with adjacent jurisdictions "for the development of joint strategies to address y r development, zoning, and land-use decisions that transcend jurisdictional boundaries." U M • ICE Policy 5-1.1.10, requiring Marathon to establish a program to 21 provide and review proposed plan amendments of adjacent local governments to ensure consistency. .y 0 • Policy 5-1.2.10), requiring Marathon to enter into interlocal U agreements or develop joint resolutions in areas of mutual concern, including the coordination of hurricane evacuation plans. Islamorada: • FLU Goal 1-1, which provides that the comprehensive plan shall r "[e]ncourage[] sustainability by limiting growth in order to establish y and maintain acceptable levels of service for hurricane evacuation[.]" �. y r • Transportation Element ("TE") Policy 2-1.2.8, which requires Islamorada to"address long-term strategies to reduce clearance time and coordinate permit allocations" by implementing specifically-listed r programs with FDOT, FDCA, and other local governments in the Keys. ®a • TE Policy 2-1.2.9, which provides for the stagedlphased evacuation CL procedure to maintain a 24-hour hurricane evacuation clearance time. • TE Policy 2-1.2.10, which requires Islamorada to "support state LL funding for the update of the hurricane evacuation model that 0 considers the impact of Miami-Dade County on evacuees[.]" • TE Policy 2-1.6.3, by which Islamorada"adopts 24 hours as the maximum allowable hurricane evacuation clearance time standard," U and provides that"[t]he Village shall reduce and maintain hurricane 32 Exhibit"A" Packet Pg.36711 Q.3.1 evacuation clearance time at or below 24 hours by ... limiting the annual allocation of permits ... as determined by interlocal agreement with the affected local governments in the Keys and the [DEO]." 0 r M • Coastal Management Element ("CME") Objective 5-1.9, requiring U Islamorada to "avoid population concentrations in the coastal high 21 hazard area." M as • CME Policy 5-1.10.2, requiring Islamorada to"coordinate with Monroe County in emergency preparedness." U 0 • CME Objective 5-1.15, requiring Islamorada to "ensure intergovernmental coordination within the coastal area." r • ICE Objective 8-1.1, requiring Islamorada to "ensure intergovernmental coordination." g • ICE Policy 8-1.2.1, titled"Coordinate Development and Growth Management Issues." • ICE Policy 8-1.2.8, titled"Implement Intergovernmental U Coordination." Key West: o CL • FLU Objective 1-1.16, requiring Key West to"regulate the rate of population growth commensurate with planned increases in 20 evacuation capacity in order to maintain and improve hurricane M evacuation clearance times[,]" and"in concert with Monroe County, its L- LU municipalities, and the State of Florida, [Key West] shall manage the rate of growth in order to maintain an evacuation clearance time of >� LU 24 hours for permanent residents." E U r r Q 33 Exhibit"A" Packet Pg.36712 Q.3.1 • CME Goal 5-1, "Protect human life and limit public expenditures in areas subject to destruction by natural disasters[.]" y r • CME Objective -1. , requiring Key West to"coordinate with the State, o r the South Florida Regional Planning Council, [Monroe] County, and M other local governments in order to regulate population growth and 21 stage evacuations in amanner that maintains hurricane evacuation M clearance times iai accordance with the executed OUI[.]" .y 0 • ICE Policy -1.1.3, which reads, in pertinent part, as follows: U 0 Considering the growth and development limitations in Monroe County as a whole resulting from hurricane evacuation requirements ... and _ considering the impact that growth and development in the City of Key West will have on the rest of Mon-roe County, [Key West] shall .0 coordinate with. Monroe County and the Cities ... � regarding the allocation of additional development. y r The City shall pursue resolution of development and growth management issues with impacts M transcending the [Key West's] political jurisdiction. Issues of regional and state significance shall be coordinated. with the SP PC], the [SF D], a.ndlor State agencies having jurisdictional CL authority. Issues to be pursued include but are not � limited to the following- [Key West] shall implement the hurricane and transportation conclusions and policies relative to residential units' allocation which are adopted by Monroe LL County arid. all municipalities as described in the UJ 0 [ OU] dated July 14, 2012. LU 99. Petitioners did not prove that the Marathon Plan Amendment is r internally inconsistent with Objectives 1- .1, 1-2. , 1-3.5, and -1.1; and Policies 4-1. 1.2, -1.1.(2), -1.1.10, and 5-1. .1.j. r r 3 Exhibit"A" Packet Pg.36713 Q.3.1 100. Petitioners did not prove the Islamorada Plan Amendment is inconsistent with Islamorada Comprehensive Plan Goal 1-1; Policies 2-1.2.8, 2-1.2.9, 2-1.2.10, and 2-1.6.3; Objective 5-1.9 and Policy 5-1.10.2; Objective 5- 0 1.15; and Objective 8-1.1 and Policies 8-1.2.1 and 8-1.2.8. M 101. Petitioners did not prove the Key West Plan Amendment is internally M g inconsistent with Key West Comprehensive Plan Objectives 1-1.16, 5-1.6, 21 M Goal 5-1, and Policy 8-1.1.3. a 102. Based on the foregoing Findings of Fact, Petitioners did not prove 0 that the Marathon and Islamorada Plan Amendments are inconsistent with section 380.0552(9)(a)2., which requires the local governments in the ACSC to adopt goals, objectives, and policies to"maintain a hurricane evacuation 3 clearance time for permanent residents of no more than 24 hours." Environmental Concerns r 103. Petitioners next contend the Plan Amendments are not supported by y data and analysis demonstrating that the environmental carrying capacity of the Keys can support development of an additional 1,300 residential units. Petitioners' concerns fall into two categories which were the focus of the FKCCS: nearshore water quality and ecological impacts. M Nearshore Water Oualitv of the Florida KeYS_ r U 104. Petitioners claim that the nearshore water quality of the Keys was determined over 25 years ago to have exceeded its capacity to assimilate o a additional nutrients, that it remains nutrient-impaired today, and that the additional development authorized under the Plan Amendments will further increase nutrient pollution from additional wastewater and stormwater LL associated with development. 0 LU 105. In 1990, Congress created the Florida Keys National Marine Sanctuary ("FKNMS"), and required development of a Water Quality r Protection Program ("WQPP"), establishing comprehensive, long-term monitoring of water quality in the FKNMS.Under the Water Quality U r r 35 Exhibit"A" Packet Pg.36714 Q.3.1 Monitoring Project ("WQMP"), water quality has been monitored quarterly at approximately 150 sampling stations since 1995. y r 106. In 1997, the Governor and Cabinet approved the FKNMS Management Plan for implementation in state waters, and required annual •° M reports from the FKNMS. U g 107. The 2011 FKNMS annual report stated that, "in general, water quality is good Sanctuary-wide but documentation of elevated nitrate in the a inshore waters of the Keys has been evident since" sampling began in 1995. y The report notes, "Observance of this type ... implies an inshore source which is diluted by low nutrient ocean waters," and that "[a]nalysis of monitoring o data from 1995 through 2008 indicates a statistically significant improvement in some parameters, such as dissolved inorganic nitrogen .. The report concludes that"this trend will be watched closely in the future, r particularly with regard to any potential effect attributable to ... water o .y treatment infrastructure improvements." The report further cited"[e]xcessive nutrients from inadequately treated wastewater" as the "primary contributor to water quality degradation in near shore waters." 108. In 2008, the Environmental Protection Agency ("EPA') developed Strategic Targets for the WQMP, setting limits for DIN (dissolved inorganic U nitrogen) at < 0.010 parts per million ("ppm"), and TP (total phosphorous) at < 0.0077 ppm, among other nutrients, which are considered the values CL "essential to promote coral growth and overall health." Future sampling was compared to the "baseline" from the 1995-2005 timeframe (e.g., the baseline 20 for DIN was 76.3 percent—the average percentage the samples complied with the target of< 0.010 ppm). In 2011, FKNMS added 10 sampling stations, U- 0 LU located within 500 meters of the shore in the Keys, referred to in the reports as the SHORE stations. LU 109. In 2015, FKNMS reported that an average of all stations (excluding SHORE stations) met or exceeded the target value for DIN in 2008 through 2011, but fell short of the target in 2012 through 2015. The stations reported 36 Exhibit"A" Packet Pg.36715 Q.3.1 meeting or exceeding the target for TP in 2011 through 2015, while falling short in 2008 and 2010. The 2017 annual report showed the stations meeting C or exceeding the DIN target in 2017, but not 2016; and meeting or exceeding C 0 the TP target in both 2016 and 2017. The 2017 study reported that"the M FKNMS exhibited very good water quality with median concentrations of TP g at .0058, well below the target of.008. In 2018, FKNMS reported the stations 21 M meeting or exceeding the target for both nutrients. Again, in 2018, FKNMS as reported"very good water quality with median concentrations of TP at y 0 .0051, lower than the 2017 level, and again well below the EPA target. 110. In summary, the reports demonstrate the stations fell below the target for TP in 2008 and 2010, but met or exceeded the target every year 0 3 since 2010. The samples fell below the target for DIN in 2012 through 2016, but met or exceeded the target value in subsequent years. r C 111. Petitioners emphasize that the EPA's Strategic Targets for nutrients .0 in the FKNMS are not consistently being met. But the reports do show a trend of improvement, at least with respect to DIN and TP. a) 112. The 2014 report documented elevated nutrient concentrations of DIN C and TP in waters close to shore along the Keys, attributable to"human M impact." r U 113. The 2015, 2017, and 2018 reports exclude the data from the SHORE stations for purposes of demonstrating compliance with target values because a they "introduce a bias to the dataset which results in a reporting problem[.]"21 -a 114. The 2017 report does include an analysis of the geographic iz differences between testing stations. The report indicates a significant LU difference between the median levels of nutrients sampled in SHORE stations when compared with the "alongshore," "channel," and"reef' stations. LU r C 21 Petitioners sought to introduce raw sample data from SHORE stations and an analysis of said data by Kathleen McKee.That evidence was admitted as hearsay only, and was not M corroborated by any non-hearsay evidence. 37 Exhibit"A" Packet Pg.36716 Q.3.1 However, the median levels of many of the nutrients are still at or below the EPA targets, even measured at SHORE stations. For example, the median y r level of TP, which the report recognizes as one of the most important determinants of local ecosystem health, at the SHORE stations was just M below .007, compared to the EPA target of.008. U g 115. More importantly, Petitioners focus on the SHORE station data was 21 inconsistent with their challenge that the nearshore water quality remains as impaired. Petitioners' planning expert, Ms. Jetton, defined nearshore as y approximately 12,000 meters from shore, not merely within 500 meters of shore. The 2017 report breaks out the "alongshore" stations as well as the o SHORE stations. That data shows the median value of TP at the alongshore stations is approximately .0055, well below the target of.008. Notably, 75 percent of the alongshore stations sampled TP below the target .008. With r respect to DIN, the median of alongshore station samples is below the target o y of.01; and 75 percent fall below .015. 0 116. In 2018, FKNMS reported a trend of increased DO (dissolved oxygen) in both surface and bottom waters throughout the Keys, and declining turbidity in the surface waters, for the 24-year period from 1995 through 2018. Increased DO is beneficial for animal life. Declining turbidity means the water is becoming clearer. The 2014 report showed no significant trends in TP, but the 2018 report noted small, but significant, declining trends in TP values in most surface waters.22 C 117. In 1995, the EPA and the Department of Environmental Protection 20 ("DEP") listed the Keys waters as "impaired," pursuant to the Clean Water Act.23 DEP is required to establish Total Maximum Daily Loads ("TMDLs") U. LU for impaired water bodies, which define the maximum pollutant loading that can be discharged to those water bodies while still achieving water quality LU 22 The 2018 report does not contain the same detailed comparison of SHORE station samples E with the other stations, as did the 2017 report. U r r 23 33 U.S.C. § 1251 et seq. 8 Exhibit"A" Packet Pg.36717 Q.3.1 targets. An alternative mechanism, a Reasonable Assurance Document ("RAD") can be developed in lieu of TMDLs when, as in the Keys, local management activities are planned to achieve water quality targets. 0 118. The Florida Keys RADs ("FKRADs") were developed in 2008, and M each of the affected local governments became a signatory to a Stakeholder's g Agreement to implement the FKRADs. The FKRADs established two sets of 21 M nutrient targets: (1) an insignificant increase in concentration above natural background within the HALO zone, which is 500 meters of shore, not 0 including canals; and (2) the average of values measured at the nearshore (500 meters to 12,100 meters from the shoreline). The FKRADs identify 23 impaired estuarine water body identifications ("WBIDs"). The WBIDs are Class III water bodies, defined by the Clean Water Act as "used for recreation, propagation, and maintenance of a healthy, well-balanced r population of fish and wildlife." The FKRAD identifies specific restoration y projects to be completed by 2020 to improve each WBID, designates the government stakeholder responsible for each project, and sets water quality targets to be achieved by each project. 119. The FKRAD focuses on TN (total nitrogen) and TP, and establishes M different water quality target values than the FKNMS. For the HALO Zone U the target is an"as insignificant increase above natural background for each ®a nutrient." "Insignificant" is defined as less than ten micrograms per liter o a (<10 µg/1) of TN, and< 2µg/1 for TP. 120. Petitioner's planning expert, Ms. Jetton, testified that the 2018 Update to the FKRAD "tells me that the surface water still isn't able to U. assimilate all the nutrients that are going into it because ... we're not LU meeting the strategic targets[.]" Ms. Jetton concluded, based on the 2018 Update to the FKRAD, that "there should be no more development added to LU r [the Keys] until the [WBIDs] can consistently meet their strategic targets." She further testified that the RAD documents identify the Keys'waters as U r not meeting the DEP necessary levels of nutrients for healthy waters and 39 Exhibit"N' Packet Pg.36718 Q.3.1 that the RADs reflect"current water quality as it's been affected by the wastewater facilities that have been upgraded in the Keys to date." y r 121. That testimony is unreliable. The purpose of the 2018 Update is C plainly set forth in the document itself. to document actions taken by •° M stakeholders since 2011 and to address the DO impairment identified by DEP U g is some water segments; to include a revised approach to monitoring and reporting results; and to identify a schedule to meet water quality targets as and restoration goals. 122. The 2018 Update to the FKRAD contains neither data on samples of TN and TP in the HALO zone waters, nor any analysis of whether the o target—insignificant increases above natural background—has been achieved. The 2018 Update provides that"water quality data will be compared to the FKRAD water quality targets ... to evaluate achievement of r targets," and that"[m]onitoring for success will include, among other data .o y sets, "decrease in nearshore nutrient concentrations in comparison to water quality targets and OFW background concentrations." a) Injection Wells and Nearshore Water t._uaht-y �E 123.Absent concrete evidence to support Petitioners' claim that the a) M nearshore waters have not recovered from their 1995 impaired designation U such that they can assimilate pollutants from additional development, Petitioners argue that the existing"improved' wastewater and stormwater CL treatment infrastructure in the Keys does not adequately protect marine and coastal resources of the Keys, and that the addition of new development will 20 exacerbate the problem. Specifically, Petitioners posit that shallow wastewater injection wells degrade nearshore water quality. U. LU 124. Marathon injects treated wastewater effluent into shallow injection wells, which are drilled to a depth of at least 90 feet and cased to a minimumLU r depth of 60 feet. C 125. Marathon's five injection wells are permitted to, and currently operate at, a permitted capacity of.200 million gallons per day ("MGD"), 40 Exhibit"A" Packet Pg.36719 Q.3.1 .400 MGD, .200 MGD, .500 MGD, and .450 MGD, respectively. Marathon's injection wells are designed and permitted to exceed full build out. C 126. Key West injects its treated wastewater effluent into deep injection 0 wells, which are 3,000 feet deep and are cased to a minimum depth of 2,000 M feet.24 M g 127. Key West's injection wells are permitted at a capacity of 10 MGD, 21 M and KeyWest currently uses y approximately 50 percent or less of the total permitted capacity for its injection wells. 0 128. Islamorada does not have its own municipal wastewater effluent U injection wells or wastewater treatment plant. Islamorada's wastewater is transmitted to the Key Largo Regional Wastewater Treatment Facility ("Key Largo Wastewater Treatment Facility"), which treats and injects effluent into a deep injection well that is cased to a minimum depth of 2,000 feet. r C 129. The Key Largo Wastewater Treatment Facility is permitted by DEP y and operates at a permitted capacity of 2 MGD. The injection wells at the Key Largo Wastewater Treatment facility are designed and permitted to r a) exceed full build out. C 130. Ms. Jetton testified that, based on reports she has reviewed, when M you inject effluent into shallow injection wells, that water will reach the U surface water"within a few hours or a few days." She referenced numerous ®a scientific reports which were admitted in evidence as sources on which she a based her opinions. She further referred to findings in the Administration Commission's 1995 Final Order that deep water injection wells are a better form of treatment than shallow injections wells. Finally, Ms. Jetton pointed U. to the 2014 and 2017 FKNMS reports as evidence that shallow well injections LU may contribute to nutrients in nearshore waters. 131. The excerpt of the 2014 report introduced in evidence contains no LU r reference to a relationship between shallow injection wells and the water U 24 Petitioners concede that deep injection wells have no quantified impact on the water quality of the nearshore waters of Key West or the Florida Keys. 41 Exhibit"A" Packet Pg.36720 Q.3.1 quality of nearshore waters. The 2017 report mentions there may be a connection. y r 132. Respondents introduced the testimony of Michael C. Alfieri, who is a licensed professional geologist, certified by the National Groundwater Association as a ground water professional, and certified by the American U g Institute of Hydrology as a professional registered hydrogeologist. Mr. Alfieri's main practice in Florida is in karst hydrogeology, and he is one as of the authors of the definitive text in Florida on karstology. y 133. Mr.Alfieri testified that the subsurface conditions in Marathon, as shown in the core samples and boring logs he personally reviewed, indicate o the presence of aquitards26 and semi-confining materials, including calcite calcrete with clay silt, which would significantly inhibit vertical migration of injectate into surface water adjacent to Marathon's shallow injection wells.26 r 134. Rased on his knowledge and experience, Mr.Alfieri testified that o .y treated wastewater or stormwater injected down a shallow injection well does not rise to the surface in the nearshore waters surrounding the Keys. He further explained that once treated effluent is injected into either a deep or shallow well, it undergoes geochernical reactions as it interacts with, and is M absorbed by, the surrounding rock, which reduces nutrient concentration. U 135. Mr.Alfieri testified that based on the advanced wastewater treatment facilities and injection wells used by Respondents, the depths of CL the injection wells and their current level of usage, as well as the surrounding geological features, including the confining layers, which are 20 horizontally transmissive, the additional residential units authorized by the Plan Amendments would have no impact on nearshore waters of the Florida U. LU Keys. LU. ....w _.... 25 Aquitards are materials that have a low potential to transmit water. Clay is the best material to serve as an aquitard given that it has high porosity and low permeability which makes it difficult for water to move through. U 26 The parties stipulated that deep injection wells"do not have a quantified impact on the water quality of the nearshore waters of Key West or the Florida Keys." 42 Exhibit"N' Packet Pg.36721 Q.3.1 136. The undersigned finds Mr.Alfieri's testimony more persuasive and reliable than Ms. Jetton's recounting of studies undertaken by other C professionals. C 0 137. On the theory that injected treated effluent contaminates the M nearshore waters of the Keys, Petitioners allege the Plan Amendments g render Respondents' comprehensive plans internally inconsistent with the M following policies, respectively: a Marathon +� 0 • Infrastructure Element ("IE") Goal 3-1: JE]nsure availability of needed public facilities associated with wastewater disposal ... in a manner that is environmentally sound and protects marine 3 environments, including sea grass beds and nearshore waters[.]" r • IE Goal 3-2: "[Marathon] shall provide for environmentally ... sound o An treatment and disposal of sewage, which meets the needs of... residents, while ensuring the protection of public health and the C maintenance and protection of ground, nearshore and offshore, water quality[.]" C 0 M • IE Objective 3-2.2: "[Marathon] shall regulate land use and a development to ... protect the functions of natural drainage features and groundwater from the impacts of wastewater systems." CL Islamorada • FLU Goal 1-1, which provides in pertinent part, as follows: 0 M C LL The comprehensive Plan shall provide a growth 0 LU management framework that ... encourages sustainability by limiting growth in order to establish and maintain acceptable levels of service LU for ... wastewater services ... and ... reclaim and preserve the quality of [Islamorada's] natural resources ... [r]elies on ecological constraints to U establish limits for growth ... to ensure that human induced activities do not diminish assets of our 43 Exhibit"A" Packet Pg.36722 Q.3.1 unique coastal environment; and provides a sound basis for developing land use controls that ... protect coastal resources, including nearshore waters, wetlands, grassbed flats, mangroves... and establish a basis for managing .. water cluality[J o r M • ClE Goal 6-1; "Isla ora .a ... shall ll conserve, manage, use and protect U g the natural and environmental resources ... based on their carrying capacity limitations to ensure continued resource availability and as environmental quality." y 0 C"E Objective -1.9: "Isla ora. a „. shall provide requirements U 0 designed to protect fisheries, wildlife and wildlife habitat from the 0 adverse impacts of development,by regulating the location, density and intensity of those activities that cause the adverse impact." r 0 ey_West y l'LU foal 1-1® "Minimize Threats To Health, Safety, And Welfare � Which May Be Caused y Incompatible Land Uses, Environmental l,}t', radation[. "27 0 E 0 CME Goal 5-1- "Coastal Management. Restrict development activities U that would damage or destroy coastal resources. Protec;t human life ®a and limit public expenditures in areas subject to destruction by natural CL dis asters[J" 0 ME Objective -1°1. "Protect Coastal Resources, Wetlands, Estuarine 0 Salt Pond Environmental Quality, Living Marine Resources, And U. LU Wildlife Habitats. ... (1) Preventing potentially adverse impacts acts of development and redevelopment on wetlands, estuaries, water LU 27 Petitioners inaccurately cite the monitoring measure attributable to Objective 1-1.16 as if E it relates to Goal 1-1-The Monitoring Treasure attributable to Objective 1-1.16 is`Number of U building permits allocated annually in accordance with the implementing policies." Q 44 Exhibit"A" Packet Pg.36723 Q.3.1 resources, living marine resources, and other natural resources; (2) Maintaining or improving coastal environmental quality by improving stormwater management[.]" 0 r • CME Policy 5-1.1.4: "Protect Living Marine Resources, Coastal Marsh, M and Seagrass Beds ... [Key West] shall seek to enhance seagrass beds 21 and coastal nontidal wetland habitats[.]" M a • CME Policy 5-1.2.2: "[Key West] shall continue to limit the specific and cumulative impacts of development and redevelopment upon water U quality and quantity, wildlife habitat, and living marine resources by enforcing performance standards cited herein. Wastewater system improvements shall also be carried out to reduce potential adverse impacts on the coral reef. In amending its land development 0 regulations, the City shall consider the establishment of additional +� protective policies for coral." y r • CME Policy 5-1.4.1: "Public Investments in Coastal High-Hazard Area. Publicly funded facilities shall not be built in the Coastal High-Hazard Area, unless the facility is for the protection of the public health and U safety." as ®a 0 • CE Objective 6-1.2: "Detrimental water quality impacts, including CL adverse impacts to the coral reef system shall continue to be combated by public facility improvements identified in the Public Facilities 0 Element .... Monitoring Measure:Achievement of water quality U. standards." LU 135. Respondents' wastewater treatment plants are in compliance with LU r their DEP wastewater treatment plant and injection well permits. U r r 45 Exhibit"N' Packet Pg.3624 Q.3.1 139. Furthermore, there have been no violations of the permits for Respondents' wastewater treatment facilities that could potentially impair y r nearshore water quality. 140. As a condition precedent to issuing permits for Respondents' injection M wells, DEP required Respondents to provide reasonable assurance that the U g operation of the wells will not cause or contribute to a violation of surface water quality standards and will not harm environmental resources. as 141. Petitioners did not prove that the Marathon Plan Amendment is y internally inconsistent with the Marathon Comprehensive Plan Goal 3-1, Goal 3-2, and Objective 3.2.2. o 142. Petitioners did not prove the Islamorada Plan Amendment is `o 3 internally inconsistent with Islamorada Comprehensive Plan Goal 1-1, Goal 6-1, and Objective 6-1.9. r 143. Petitioners did not prove the Key West Plan Amendment is internally o .y inconsistent with Key West Comprehensive Plan Goals 1-1 and 5-1; Objective 5-1.1 and Policies 5-1.1.4, 5-1.2.2, and 5-1.4.1; and Objective 6-1.2. Ecolo icalImpacts 144. Petitioners maintain the Plan Amendments are not supported by the best available data on the ecological carrying capacity of the Keys with r U regard to habitat protection. 145. The FKCCS recommended four guidelines for future development in CL the Keys: (1) prevent encroachment into native habitat; (2) continue and intensify existing programs (e.g., land acquisition, wastewater treatment); 20 (3) focus future growth on redevelopment and infill; and (4) increase efforts to M manage the resources. U. LU 146. Since the FKCCS was published in 2002, the local governments in the ACSC have completed numerous work programs designed to implement LU the recommendations, including updating habitat mapping, maximizing grant funding for land acquisition, and acquiring environmentally-sensitive lands to remove them from potential development. 46 Exhibit"N' Packet Pg.36725 Q.3.1 147. Furthermore, the BPAS system integrates environmental concerns when scoring applications for the units allocated. In Marathon, Policy 1-3.5.4 affords the greatest weight to applications for development of scarified and infill lots with existing paved roads, water, and electric service. The Plan M affords the least weight to applications on lots containing sensitive areas as M g identified on the vegetation and species maps. Further, the Marathon plan 21 M provides that, "in no case shall more than one (1) BPAS allocation per year be issued for properties which in part or whole designated as Hardwood 0 Hammock, Palm Hammock, Cactus Hammock, or Beach/Berm." 148. The Key West comprehensive plan mandates that new development preserve, at a minimum, "all wetlands and ninety (90) percent of hardwood hammocks." The Key West plan does not allow development in any wetlands "except where State and/or federal agencies having jurisdiction provide for r development rights." .0 149. The Islamorada comprehensive plan mandates that new development preserve "all undisturbed wetlands" and 90 percent of high quality tropical hardwood hammocks on the parcel being developed. The Islamorada comprehensive plan also discourages development of lots containing both M disturbed and undisturbed habitats by applying the most stringent open U space requirements to development sites containing the highest quality ®a habitats. For example, the minimum open space requirement for high quality a hammock is .90; while for undisturbed saltmarsh and buttonwood wetlands, as well as undisturbed mangrove and freshwater wetlands, the ratio is 1.0. The plan requires an open space ratio of.90 for disturbed saltmarsh and LL buttonwood wetlands, as well as disturbed mangrove and freshwater wetlands. 150. Nevertheless, Petitioners argue that the Plan Amendments allow LU r new units to be built in disturbed hammock, which constitutes additional encroachment into hammock, contrary to the FKCCS. Petitioners point to U r the provision of the Plan Amendments which provides that the workforce 47 Exhibit"A" Packet Pg.36726 Q.3.1 affordable units "shall not be placed in any habitat defined as mangroves, saltmarsh &buttonwood, hardwood hammock,[281 or fresh water wetlands r (disturbed categories excepted)[.]" C 151. The provisions of the Plan Amendments must be read together with M existing comprehensive plan provisions. When read together, the Marathon U g comprehensive plan may not allow any of the affordable-early evacuation units to be built on any hammock habitat because it only allows one BPAS as permit per year be allocated to any parcel containing designated hardwood y hammock. Since the Plan Amendment requires the units be built as _° multifamily, thereby utilizing multiple allocations for one application, it is o impossible to permit the new affordable units on any lot designated hardwood hammock. 152. Further, the Marathon BPAS weighting system will apply to the new r allocations,29 which will continue to direct development to scarified lots, and .0 An those lots with maximum disturbed areas. The Islamorada plan open space requirements will apply to disincentivize development of parcels with high +� C quality hammock, buttonwood wetlands, and freshwater wetlands, by C requiring the most stringent open space ratios. 0) 153. Petitioners did not prove the Plan Amendments are not based on U data and analysis of the ecological carrying capacity of the Keys. 154. Petitioners allege that the Plan Amendments are internally CL inconsistent with the following provisions of the Marathon and Islamorada plans relating to ecological concerns: -a Islamorada: • GOAL 1-1:IMPLEMENT FUTURE LAND USE VISION, which reads, U. in pertinent part, as follows: LU r C _........ .M......-...... 0 28 The Islamorada Plan Amendment refers to"tropical"hardwood hammock. �E U 29 Only the Key West Plan Amendment exempts the allocation of the affordable-early evacuation units from the BPAS. 48 Exhibit"N' Packet Pg.36727 Q.3.1 [Islamorada was] incorporated to create a Comprehensive Plan to reclaim the Keys by _ conserving, preserving, and retaining our remarkable assets—our waters and natural environment—and our quality of life; Encourages o sustainability by limiting growth in order to ... M reclaim and preserve the quality of our natural g resources; Relies on ecological constraints to 0) 21 establish limits for growth and create standards and criteria to ensure that human induced as activities do not diminish assets of our unique coastal environment[.] • Policy 2-1.9.3: Participate in the Florida Keys Carrying Capacity 0 Study. ... "[Islamorada] shall continue to support the technical 3 undertakings of this study, and the establishment of carrying capacity limitations for the Florida Keys." r 0 • Goal 6-1: "Islamorada ... shall conserve, manage, use and protect the y natural and environmental resources ... based on their carrying �. y capacity limitations to ensure continued resource availability and environmental quality." • Policy 6-1.4.4: "Islamorada ... shall use the best available technical U criteria and information to formulate regulations and ordinances which shall ensure that future development is compatible with the o CL functioning and carrying capacity of existing natural systems and resources conservation." 20 Marathon M U. • Objective 1-2.1: which calls for adequate public facilities and services 0 LU for future growth"to ... protect valuable natural resources...." LU 155. Petitioners did not prove the Marathon Plan Amendment is internally inconsistent with Objective 1-2.1. U r r 49 Exhibit"A" Packet Pg.36728 Q.3.1 156. Petitioners did not prove the Islamorada Plan Amendment is internally inconsistent with Goal 1-1, Policy 2-1.9.3, Goal 6-1, and y r Policy 6-1.4.4. C Other Contentions M Survevs Studies. and Data U g 157. Petitioners alleged the Plan Amendments violate section 21 163.3177(6)(a)2., which reads, in pertinent part, as follows: as 2. [P]lan amendments shall be based upon surveys, y studies, and data regarding the area, as applicable, including: U 0 a. The amount of land required to accommodate anticipated growth. b. The projected permanent population of the area. r c. The character of undeveloped land. .yo d. The availability of water supplies, public facilities, and services. C a) e. The need for redevelopment, including renewal of blighted areas and the elimination of a) nonconforming uses which are inconsistent with M the character of the community. U as f. The compatibility of uses on lands adjacent to or closely proximate to military installations. . g. The compatibility of uses on lands adjacent to an airport[.] M h. The discouragement of urban sprawl. LL LU i. The need for job creation, capital investment, and economic development that will strengthen and diversify the community's economy. uJ r C J. The need to modify land uses and development patterns with antiquated subdivisions. U (emphasis added). 50 Exhibit"A" Packet Pg.36729 Q.3.1 158. Many of the listed criteria are not applicable to the Plan Amendments because the Plan Amendments do not propose a specific type of development at a specific location, do not implicate antiquated subdivisions, C and do not specifically implicate redevelopment of blighted areas. 159. Respondents considered the availability of water supplies and other g public services, such as the capacity of wastewater treatment facilities, 21 during plan review and adoption. Respondents also considered the need of the service sector of the economy—including retail and restaurant services, 0 as well as public school and first-responder services—during plan review and adoption. `0 160. Petitioners did not prove the Plan Amendments are not based upon applicable surveys, studies, and data as required by section 163.3177(6)(a)2. Meanin-ful and Predictable Standards r C 161. Petitioners allege the Plan Amendments violate section 163.3177(1), •0 which requires, among other things, that"the plan shall establish meaningful and predictable standards for the use and development of land[.]" a) 162. First, Petitioners focus on the language of the Plan Amendments E C which requires location of the workforce-affordable housing to"ensure M accessibility to employment centers and amenities." Petitioners argue that, r U because none of the Plan Amendments define either"employment center" or "amenity," these standards are not meaningful to identify those sites which o CL would qualify for development under the Plan Amendments. 163. Lack of definition alone does not render the terms meaningless. If so, all of the terms in both the Marathon and Islamorada plans, which do not U. contain a definition section, would be rendered meaningless. That simply 0 cannot be the case. 164. Both the Key West and the Islamorada comprehensive plans employ Uj r the same phrasing in other parts of the existing plan as used in the Plan 0 Amendments. In Policy 3-1.5.2, Islamorada provides that"sites for affordable U a r housing ... shall be approved only if such sites [are] ... [a]ccesible to 51 Exhibit"A" Packet Pg.36730 Q.3.1 employment centers[.]" The Key West comprehensive plan uses the same exact language in Policy 3-1.1.7 for siting affordable housing generally, and y r in Policy 3-1.1.11 for siting housing for low- and moderate-income households particularly. Clearly, determining whether the housing provided for in the M Plan Amendments is "accessible to employment centers" will not be a novel U g undertaking, at least not for planners in Key West and Islamorada where that same standard has been successfully applied to siting affordable housing as prior to the Plan Amendments. y 165. The Marathon comprehensive plan does not employ the same terms. Yet, Mr. Garrett had no difficulty identifying Old Town as an employment 0 center in Marathon. In fact, Mr. Garrett identified all the City's employment centers as being located generally between Coco Plum and the Seven Mile Bridge. As for determining whether the housing authorized under the Plan r Amendment will be "accessible" to an employment center, Petitioners o .y complain that there is "no spatial or temporal requirement whatsoever." To be fair, accessibility, as used in this context, is a subjective term. However, Mr. Garrett explained that accessibility is not limited to distance alone. As an example, he testified that housing located a mile-and-a-half from an employment center in Marathon is accessible by bus routes that run U throughout the day. 166. Petitioners contend that the language is not meaningful because the CL term "amenities" is also not defined in the Plans. In their Proposed Recommended Order, Petitioners state, "It is unknown whether this term 20 means anything over and above required concurrency facilities." 167. When a legislative term is not specifically defined, it must be given L- LU its plain and ordinary meaning. See Greenfield v. Daniels, 51 So. 3d 421, 426 (Fla. 2010) (citing Sch. Bd. of Palm Beach Cty. v. Survivors Charter Schs., LU Inc., 3 So. 3d 1220, 1233 (Fla. 2009) (quoting Fla. Birth-Related Neurological Injury Comp. Assn v. Fla. Div. of Admin. Hrgs., 686 So. 2d 1349, 1354(Fla. 1997))). It is appropriate to refer to a dictionary definition to ascertain the 52 Exhibit"X Packet Pg.36731 Q.3.1 plain and ordinary meaning of legislative terms. See Survivors Charter Schs., 3 So. 3d at 1233. y r 168. The definition of"amenity" is "something that helps provide comfort, 0 convenience, or enjoyment."Merriam-Webster.com, at www.merriam- M webster.com/dictionary/amenity (accessed Sept. 15, 2020). In context, then, g an employment center amenity is a use that provides comfort or convenience 21 to those employed in the area, as well as patrons of those businesses. Common sense examples are gas stations, convenience stores, and banks. 0 169. Petitioners did not prove that the phrase "ensure accessibility to employment centers and amenities" fails to provide meaningful and predictable standards for the use and development of land under the Plan Amendments. 170. Next, Petitioners contend that the requirement to "incorporate r sustainable and resilient design principles into the overall site design" of the .0 workforce-affordable housing is meaningless. In support of this contention, Petitioners introduced the brief, conclusory statement by Ms. Jetton that r those terms are meaningless because they are undefined.As stated above, lack of a definition alone does not render the terms meaningless, and it is M found that they are not. r U 171. Petitioners did not prove that the Plan Amendments' direction to "incorporate sustainable and resilient design principles" fails to provide CL meaningful and predictable standards for the use and development of land under the Plan Amendments. 172. Finally, Petitioners make a variety of arguments to establish that the LL Plan Amendments do not provide meaningful standards to ensure 0 enforcement of(1) use of the units for workforce-affordable housing, and (2) early evacuation of those units. LU r 173. Petitioners allege that the Plan Amendments "do not require the units or the residents to meet any affordable housing criteria, or adopt by U a r reference any such requirements." Ms. Jetton testified that, because the Plan 53 Exhibit"A" Packet Pg.3632 Q.3.1 Amendments do not include, or otherwise adopt, HUD income guidelines, they will not produce affordable housing. y r 174. The Plan Amendments require the use of deed restrictions to ensure: C 0 r (i) the property remains workforce-affordable housing in perpetuity; g 21 (ii) tenants evacuate during the period in which M transient units are required to evacuate; .y (iii) rental agreements contain a separate o disclosure requiring renters to acknowledge that failure to adhere to the evacuation requirement could result in severe penalties, including eviction, to the resident; and (iv) on-site property managers are formally trained in evacuation procedures.[30] r C 0 .y 175. Petitioners allege that because the term "workforce-affordable housing" is undefined, there is no mechanism to ensure that the housing built C pursuant to the Plan Amendments will be reserved for persons with particular income limits. 0 176. As previously discussed, a term is not meaningless just because it is undefined in the Plan Amendment. The Key West comprehensive plan defines the term "affordable housing" according to HUD standards, as a unit CL for which"a household spends no more than 30 percent of its gross income on housing costs." While the term is not specifically defined in the Islamorada and Marathon plans, both jurisdictions implement affordable housing programs established in their plans through more specific land development `L LU regulations which establish income limitations for that housing.As those plans are already in compliance, they cannot be said to lack meaningful and LU predictable standards. C E U 30 The Key West Plan Amendment does not include this provision. 54 Exhibit"A" Packet Pg.36733 Q.3.1 177. Mr. Garrett testified that the term workforce would be given its plain and ordinary meaning persons employed within the County. Thus, workforce-affordable housing units are reserved for members of the workforce who meet the previously-established definitions of affordable housing used to M implement the local governments' existing programs. g 178. Petitioners' attack on the enforcement of the early evacuation 21 requirement is, again, grounded in a lack of defined terms, as well as speculation that the provisions are unenforceable. Ms. Jetton speculated that 0 most residents of this housing would be either unable or unwilling to evacuate early, and that the Plan Amendment language has no teeth to ensure early evacuation. She testified that the language is permissive— "failure to adhere to evacuation requirements could result in severe penalties"—meaning it may not be enforced at all. According to her, because r the term "severe penalties" is also undefined, the entire provision is .0 meaningless to enforce the early evacuation requirement. 179. Mr. Garrett testified that the enforcement of penalties would be the authority of the Code Compliance Department and that each case would be considered on its own individual facts. M 180. In addition, the Plan Amendments include a process for evaluation of U the effectiveness and enforcement of the "early-evacuation pool" established therein. The Plan Amendments require each local government to report to CL DEO annually documenting the number of workforce-affordable housing units built, the occupancy rates thereof, and compliance with the early evacuation requirement. Should there be any enforcement issues, the state LL can make refinements in the program. Further, data regarding either lack of 0 enforcement of the units as "affordable," or required evacuation thereof, could support future Plan Amendments to address those issues. r 181. Petitioners did not prove that the Plan Amendments lack meaningful and predictable standards for either the use of the workforce-affordable U a r housing units or early evacuation thereof. 55 Exhibit"A" Packet Pg.36734 Q.3.1 CONCLUSIONS OF LAW 182. The Division of Administrative Hearings has jurisdiction over the y r subject matter and parties hereto pursuant to sections 120.569, 120.57(1), and 163.3184(5), Florida Statutes (2019). M 183. To have standing to challenge or support a plan amendment, a U g person must be an"affected person," as defined in section 163.3184(1)(a). 184. Petitioners are all"affected persons" with standing to bring this a action pursuant to 163.3184(1)(a). y 185. "In compliance" means "consistent with the requirements of §§ 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, and 163.3248, with the 0 appropriate strategic regional policy plan, and with the principles for guiding development in designated areas of critical state concern and with part III of chapter 369, where applicable." § 163.3184(1)(b), Fla. Stat. r 186. Respondents' determinations that the Plan Amendments are "in o .y compliance" are presumed to be correct and must be sustained if the determinations of compliance are fairly debatable. See § 163.3184(5)(c), Fla. Stat. 187. "The `fairly debatable' rule is a rule of reasonableness; it answers the question of whether, upon the evidence presented to the [government] body, r the [government's] action was reasonably-based." Lee Cty. v. Sunbelt Equities, II, Ltd. P'ship, 619 So. 2d 996, 1002 (Fla. 2d DCA 1993) (citing M CL Town of Indialantic v. Nance, 400 So. 2d 37, 39 (Fla. 5th DCA 1981)). 188. The mere existence of contravening evidence is not sufficient to 20 establish that a land planning decision is "fairly debatable." It is firmly M established that: LL `o [E]ven though there was expert testimony adduced in support of the City's case, that in and of itself does not mean the issue is fairly debatable. If it did, LU every zoning case would be fairly debatable and the City would prevail simply by submitting an expert who testified favorably to the City's position. Of U course that is not the case. The trial judge still 56 Exhibit"A" Packet Pg.36735 Q.3.1 must determine the weight and credibility factors to be attributed to the experts. Here the final judgment shows that the judge did not assign much weight or credibility to the City's witnesses. 0 Boca Raton v. Boca Villas Corp., 371 So. 2d 154, 159 (Fla. 4th DCA 1979). U 189. The standard of proof to establish a finding of fact is preponderance 21 of the evidence. See § 120.57(1)0), Fla. Stat. The MOU 190. Petitioners allege, as grounds for finding the Plan Amendments not "in compliance," that the Plan Amendments are inconsistent with the MOU. U Petitioners' allegations of inconsistency with the MOU are not well taken. 0 Only those specific items listed in the statutory definition of"in compliance" may form the basis for finding the Plan Amendments not"in compliance." See Consol. Citrus v. Martin Cty., Case No. 13-3393 (Fla. DOAH Jan. 23, 2013, 0 Order on Respondent's Mot. in Lim. or in the Alter. Mot. to Strike) (whether g plan amendment is consistent with sections 163.3162, 193.461, 823.14, y Florida Statutes, and Florida Administrative Code Rules 62B-33 and 40E-8 are not compliance issues); Cemex Constr. Materials Fla. v. Lee Cty., Case No. 10-2988 (Fla. DOAH Feb. 21, 2012; Fla. DCA Apr. 10, 2012) (whether E plan amendment is consistent with section 337.0261(3), Florida Statutes, is U as not a compliance criterion); Monkus v. City of Miami, Case No. 04-1080 (Fla. DOAH Sept. 3, 2004; Fla. DCA Oct. 26, 2004) (consistency with land CL development regulations is not a compliance issue); Emerald Lakes Residents' Ass'n v. Collier Cty., Case No. 02-3090 (Fla. DOAH Feb. 10, 2003; Fla. DCA 0 M May 8, 2003) (whether plan amendment was adopted in conformity with LL procedural requirements of section 163.3185(15)(c) is not a compliance issue); Lu Current v. Town of Jupiter, Case No. 03-0718 (Fla. DOAH Oct. 24, 2003; Fla. LU DCA Apr. 9, 2004) (whether plan amendment conflicts with local government r resolution is not a compliance issue); Durham Park Neighborhood v. City of Miami, Case No. 06-0759 (Fla. DOAH May 24, 2006 Order Granting Leave to r Q 57 Exhibit"A" Packet Pg.3636 Q.3.1 Amend but Striking Portions of Amended Pet.) (striking Petitioners' claims that plan amendment is not consistent with Florida Administrative Code y r Rule 9J-11 because the provisions are not compliance criteria); and Pyle v. City of St. Pete Beach, Case No. 08-4772 (Fla. DOAH Jan. 28, 2009, Order on M Mot. to Strike) (requirement to submit a"complete" plan amendment package U g pursuant to section 163.32456 is not a compliance issue). 191. If the MOU was adopted by reference in Respondents' comprehensive as plans, Petitioners' argument might have had merit. However, none of the y comprehensive plans adopts the MOU by reference. The MOU is a separate �° stand-alone document which may be amended by agreement of the parties, o outside of the statutory plan amendment process. Internal Inconsistences 192. Section 163.3177(2) mandates"the several elements of the r comprehensive plan shall be consistent." O .y 193. Petitioners did not prove, beyond fair debate, that the Plan Amendments are inconsistent with specifically-identified provisions of Respondent's plans relating to hurricane evacuation clearance times, quality E E of nearshore waters, wastewater treatment, or habitat protection. 194. Petitioners did not prove beyond fair debate that the Plan U Amendments are inconsistent with section 163.3177(2). Data and Anal sis o CL 195. Section 163.3177(1)(f requires plan amendments to be "based upon relevant and appropriate data and analysis" by the local government, and 20 includes "surveys, studies, community goals and vision, and other data available at the time of adoption." U. 196. To be based on data"means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular LU subject at the time of adoption of the plan amendment." § 163.3177(1)(f), Fla. Stat. U r r Q 58 Exhibit"A" Packet Pg.3637 Q.3.1 197. Based upon the foregoing Findings of Fact, Petitioners did not prove the Plan Amendments are not supported by adequate data and analysis, or fail to react to professionally-acceptable data in an appropriate way, r_ 198. Petitioners did not prove beyond fair debate that the Plan Amendments are inconsistent with section 163.3177(l)(f). g Principles for Guiding Development 199. "In compliance" is defined to include consistency with the Principles, which apply to both Marathon and Islamorada.31 Petitioners alleged the Plan 0 Amendments are inconsistent with section 380.005(9), which requires plan cs amendments comply with the requirement to "maintain® a hurricane evacuation clearance time for permanent residents of no more than 24 hours." Based on the foregoing Findings of Fact, it is at least fairly debatable that the Plan Amendments will not cause evacuation clearance time of the ACSC to r exceed the 24-hour evacuation clearance time. .y 200. Furthermore, the Principles "may not be construed or applied in isolation," but must be "construed as a whole." § 380.0552(7), Fla. Stat. The undersigned is required to balance the Principles as applied to Petitioners' challenges. One of the other major Principles implicated by the Marathon M and Islamorada Plan Amendments is to"[m]ake0 available adequate U affordable housing for all sectors of the population of the Florida Keys." § 380.0552(7)(1), Fla. Stat. The parties stipulated to the need for affordable CL housing, which has a documented impact on the Keys' economy. The need to house the workforce for the service sector of the Keys'economy implicates another Principle: to ensure "the maximum well-being of the Florida Keys - and its citizens through sound economic development." § 380.0552(7)(d), Fla. LU Stat. 201. With regard to Key West, Petitioners urge the Plan Amendment is LU r inconsistent with Florida Administrative Code Rule 28-36.003(1)(a), (h), and U 31 The Principles for Guiding Development in the Key West ACSC make no reference to hurricane evacuation clearance times. See Fla.Admin. Code R.28-36.003. 59 Exhibit"A" Packet Pg.3638 Q.3.1 (2)(a)7., which require plan amendments to "[s]trengthen local government capabilities for managing land use and development"; "[p]rotect ... the public y r health, safety, welfare, and economy of the City of Key West, and [maintain] Key West as a unique Florida Resource"; and adopt an"evacuation plan .° M consistent with regional and [Monroe] County plans ... which provides an U g opportunity for residents and visitors to evacuate to a place of safety during a natural disaster," respectively. as 202. Based upon the foregoing Findings of Fact, Petitioners did not prove y beyond fair debate that the Key West Plan Amendment is inconsistent with �° cs the listed Principles. Other Contentions 203. Petitioners raised additional arguments, which were likewise not proven beyond fair debate. r 204. Petitioners alleged the Plan Amendments violate section o .y 163.3177(6)(a)2., which requires consideration of specifically-fasted types of data and analysis for adoption of plan amendments. Respondents considered the availability of water supplies and other public services during plan review and adoption. Respondents also considered the need of the service sector of the economy—including retail and restaurant services, as well as public school and first-responder services—during plan review and adoption. 205. Based on the foregoing Findings of Fact, Petitioners did not prove, CL beyond fair debate, that the Plan Amendments are inconsistent with section 163.3177(6)(a)2. 20 206. Petitioners contend the Plan Amendments were inconsistent with M section 163.3177(6)(a)8., which requires, as follows: LL LU 8. Future land use map amendments shall be based upon the following analysis: LU a. An analysis of the availability of facilities and services. U r r Q 60 Exhibit"A" Packet Pg.36739 Q.3.1 b. An analysis of the suitability of the plan amendment for its proposed use considering the character of the undeveloped land, soils, topography, natural resources, and historic resources on site. (emphasis added). o r M 207. The cited statutory section is inapplicable to the Plan Amendments g because they are not future land use map amendments. 208. Petitioners also contend the Plan Amendments were inconsistent as with the requirement in section 163.3177(l) that local government +� comprehensive plans "shall establish meaningful and predictable standards for the use and development of land[." Based on the foregoing Findings of Fact, Petitioners did not carry.their burden of proof with respect to that 3 issue. Conclusion r 209. For the reasons stated above, Petitioners have not proven beyond fair .0 debate that the Plan Amendment is not"in compliance," as that term is defined in section 163.3184(1)(a). RECOMMENDATION E M Based on the foregoing Findings of Fact and Conclusions of Law, it is U RECOMMENDED that the Department of Economic Opportunity enter a final order determining the City of Marathon Comprehensive Plan Amendment a 2018-01, adopted on October 23, 2018; City of Key West Comprehensive Plan Amendment 19-06, adopted on April 4, 2019; and Islamorada, Village of Islands, Comprehensive Plan Amendment 19-03, adopted on March 5, 2019; U. are "in compliance," as that term is defined in section 163.3184(1)(b). LU LU r E U r r 61 Exhibit"A" Packet Pg.36740 Q.3.1 DONE AND ENTERED this 25th day of September, 2020, in Tallahassee, Leon County, Florida. y r O SUZANNE VAN WYK Administrative Law Judge g Division of Administrative Hearings 21 The DeSoto Building M 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 y (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2020. r COPIES FURNISHED: y Robert N. Hartsell, Esquire �. Robert N. Hartsell, P.A. y Suite C 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) E r U Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. Suite C M CL 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) M Shai Ozery, Esquire LL Robert N. Hartsell P.A. LU Suite C 61 Northeast lst Street Pompano Beach, Florida 33060 r (eServed) M U r r Q 62 Exhibit"N' Packet Pg.36741 Q.3.1 Barton William Smith, Esquire Law Firm of Smith Hawks, PL 138 Simonton Street r Key West, Florida 33040 (eServed) o r M Christopher B. Deem, Esquire g Law Firm of Smith Hawks, PL 21 138 Simonton Street Key West, Florida 33040 (eServed) .y Nicola J. Pappas, Esquire Law Firm of Smith Hawks, PL o 138 Simonton Street Key West, Florida 33040 (eServed) Richard J. Grosso, Esquire r Richard Grosso P.A. o Mail Box 300 +� 6511 Nova Drive Davie, Florida 33317 y (eServed) Shawn D. Smith, City Attorney City of Key West, City Attorney's Office M 1300 White Street r Post Office Box 1409 Key West, Florida 33040 E (eServed) o a George B. Wallace, Esquire City of Key West, City Attorney's Office 1300 White Street M Post Office Box 1409 E LL Key West, Florida 33040 0 (eServed) Roget V. Bryan, Esquire Islamorada, Village of Islands 86800 Overseas Highway Islamorada, Florida 33036 U (eServed) 63 Exhibit"A" Packet Pg.36742 Q.3.1 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 r.0 (eServed) U M Dane Eagle, Executive Director 0) 21 Department of Economic Opportunity Caldwell Building a 107 East Madison Street Tallahassee, Florida 32399-4128 0 (eServed) Mark Buckles, Interim General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 r (eServed) 0 .y NOTICE OF RIGHT TO SUBMIT EXCEPTIONS N r All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. 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