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Item S1
s S.1 y;+ ' "tr, BOARD OF COUNTY COMMISSIONERS County of Monroe , Mayor Michelle Coldiron,District 2 �� {sJ ` °' 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 April 21, 2021 Agenda Item Number: S.1 Agenda Item Summary #8040 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 an ordinance 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; including the specific requirement for an exchange of affordable units for the Workforce Initiative units and requiring that the affordable units returned in the exchange are added to the administrative relief pool. (File 2020-067). ITEM BACKGROUND: At a regularly scheduled meeting held on January 20, 2021, the Monroe County Board of County Commissioners held a public hearing, and adopted Resolution 041-2021 to transmit the proposed amendments to the Department of Economic Opportunity (DEO)to review the proposal, with a modification to Policy 101.3.12 to eliminate the requirement for a development agreement; instead, requiring a resolution approving a contract. DEO reviewed the amendment and issued an Objections, Recommendations and Comments (ORC) report, received by the County on March 30, 2021. The ORC report stated, "the Department does not identify any objections or comments to the proposed amendment." This is the second required public hearing on the proposal, for the BOCC to consider adoption of the proposed Comprehensive Plan text amendment and submittal to DEO again for a compliance review. No changes have been made to the amendment since the transmittal hearing on January 20, 2021. The amendment remains as an exchange program for existing affordable allocations/exemptions with developers that agree to the early evacuation restriction and then the affordable housing allocations are returned to the County (returned in the exchange) to be set aside and banked for potential future takings cases. Packet Pg. 3440 S.1 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 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 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. Packet Pg. 3441 S.1 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 pern it allegations to he used in exchange ftr~ existing gl1br~cduhle allocutions ut 177111tifuin ilY' developments (fl)rR developers that agree to the earl ' evuc°ttution restriction) and the ufftr~duhle housing allocutions returned to the Co (returned in the exchange) he ,set aside and hutrked fctrR takings cases (hank them Within an a dmilastr alive relief'Pool). 'ri, Drolposed Con Drehensive 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. • 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 Packet Pg. 3442 S.1 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). 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 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 Packet Pg. 3443 S.1 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). 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 exchaLge 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 Packet Pg. 3444 S.1 (returned in the exchange) be set aside and banked for takings cases (bank them within an administrative relieLpool). On January 20, 2021, the BOCC adopted Resolution 041-2021 transmitting the proposed amendments to DEO for review of the proposed amendment, with a modification to Policy 101.3.12 to eliminate the requirement for a development agreement; instead, requiring a resolution approving a contract. CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATION: The Planning Commission included in their motion to recommend approval to the BOCC, 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 the ordinance. DOCUMENTATION: 2020-067_ORDINANCE_CP_workforce early evac_ADOPTION State Review Comments on CP amendment_MONROE CO. 21-03ACSC 2020-067_StaffReport_CP_300 workforce early evac_BOCC_ADOPTION BOCC Resolution 041-2021_transmittal of proposed amendment to DEO 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. 9 DEO Final Order upholding city amendments 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 Ordinance FINANCIAL IMPACT: Packet Pg. 3445 S.1 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 03/30/2021 2:26 PM Assistant County Administrator Christine Hurley Completed 04/01/2021 11:57 AM Peter Morris Completed 04/05/2021 2:07 PM Purchasing Completed 04/05/2021 2:10 PM Budget and Finance Completed 04/05/2021 2:26 PM Maria Slavik Completed 04/05/2021 3:57 PM Liz Yongue Completed 04/05/2021 4:03 PM Board of County Commissioners Pending 04/21/2021 9:00 AM Packet Pg. 3446 S.1.ai 3 \! CL 4 E 5 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 14 LAND USE ELEMENT AND THE HOUSING ELEMENT TO ESTABLISH 15 A NEW BUILDING PERMIT ALLOCATION CATEGORY TO ACCEPT N 16 AND AWARD 300 WORKFORCE HOUSING EARLY EVACUATION 17 UNIT BUILDING PERMIT ALLOCATIONS PURSUANT TO THE a, 18 WORKFORCE-AFFORDABLE HOUSING INITIATIVE (WORKFORCE 19 INITIATIVE) AUTHORIZED BY THE FLORIDA ADMINISTRATION -19 20 COMMISSION AND THE FLORIDA DEPARTMENT ECONOMIC c 21 OPPORTUNITY BY AMENDING AS WELL AS CLARIFYING POLICIESCD 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 Z 24 101.3.12 TO ESTABLISH THE SPECIFIC WORKFORCE INITIATIVE 25 REQUIREMENTS; PROVIDING FOR SEVERABILITY; PROVIDING 26 FOR REPEAL OF CONFLICTING PROVISIONS; PROVIDING FOR i 27 TRANSMITTAL TO THE STATE LAND PLANNING AGENCY AND THE 28 SECRETARY OF STATE; PROVIDING FOR AMENDMENT TO AND 29 INCORPORATION IN THE MONROE COUNTY COMPREHENSIVE 30 PLAN; PROVIDING FOR AN EFFECTIVE DATE. (FILE NO. 2020-067) 31 32 33 WHEREAS,pursuant to Article 8 of the Florida Constitution and Section 125.66, Florida 0 34 Statutes, Monroe County possesses the police powers to enact ordinances in order to protect the �i 35 health, safety, and welfare of the County's citizens; and U1 36 LU 37 WHEREAS, Florida Statute § 380.0552., the Florida Keys Area protection and Z 38 designation as area of critical state concern, establishes the intent to"ensure that the population of z 39 the Florida Keys can be safely evacuated", Florida Statute § 380.0552(2)(j), and requires that 40 amendments to each local government's comprehensive plan to include "goals, objectives, and ®i 41 policies" to protect public safety and welfare in the event of a natural disaster by maintaining a 42 hurricane evacuation clearance time for permanent residents of no more than 24 hours; and 43 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 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 20 File 2020-067 Packet Pg. 3447 S.1.ai 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 a. 4 Housing Initiative to allow 1,300 additional Rate of Growth Ordinance allocations ("ROGO 0 5 allocations") throughout the Florida Keys for rental workforce housing, with a condition that the 6 rental 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 14 by geographic and environmental features,housing supply limited by controlled growth(including 15 but not limited to the Rate of Growth Ordinance) and a tourism economy with a prevalence off 16 lower paying service-sector employment; and 0 17 18 WHEREAS, the need to protect and preserve an adequate inventory of 2 19 affordable/workforce accessible housing is a continual as well as a growing challenge in the 20 Florida Keys,particularly after the impacts of Hurricane Irma which caused significant damage to 0 21 housing units throughout the Florida Keys; and 22 23 WHEREAS,on September 19,2018,the Monroe County Board of County Commissioners 24 ("BOCC", "Monroe County", or the "County") directed County staff to draft proposed policy CL 25 alternatives to the State's Keys Workforce Housing Initiative that address several concerns raised 26 related to the enforceability of the evacuation provisions; and 27 28 WHEREAS, on January 30, 2019, the BOCC considered options to accept the 300 units 29 but took no official action; and 30 31 WHEREAS, on January 22, 2020, the BOCC directed staff to prepare an agenda item to 32 discuss and provide direction on whether to direct staff to process Comprehensive Plan and Land 33 Development Code amendments to: 1) Move a portion of market-rate ROGO units to the 34 affordable housing allocation pool and/or 21 Accept the 300 Workforce Housing units offered by ?:i CL 35 the Department of Economic Opportunity required to evacuate in Phase 1 of the Hurricane 36 Evacuation model; and uo� 37 U z 38 WHEREAS, on February 19, 2020,the BOCC discussed whether to direct staff to process 39 a comprehensive plan and land development code amendment to: L Move a portion of the 378 40 remaining Market Rate -Rate of Growth Ordinance(ROGO)units through 2026 to the Affordable ®i 41 Housing allocation pool and/or 2) Accept the 300 Workforce Housing units offered by the DEO 42 required to evacuate in Phase 1 of the hurricane evacuation model. The BOCC did not decide on 43 the potential shifting of market rate allocations to the affordable housing pool but did direct staff 44 to start the process to accept the 300 workforce housing units; and `44 45 46 WHEREAS, on July 15,2020, during a discussion item on potentially shifting market rate 47 allocations to the affordable housing pool, the BOCC provided further direction to staff on Ordinance No. -2021 Page 2 of 20 File 2020-067 Packet Pg. 3448 S.1.ai I accepting the 300 workforce housing early evacuation unit building permit allocations. The BOCC 2 directed: Accept the 300 workforce housing early evacuation unit building permit allocations to 3 be used in exchange for existing affordable allocations at multifamily developments (for CL 0. 4 developers that agree to the early evacuation restriction) and the affordable housing allocations E 5 returned to the County (returned in the exchange) be set aside and banked for takings cases (bank 6 them within an administrative relief pool); and y 7 8 WHEREAS, Monroe County policies and regulations adopted in the Monroe County 9 Comprehensive Plan and Land Development Code are to maintain public health, safety, and 2 10 welfare of the citizens of the Florida Keys and to strengthen our local government capability to 11 manage land use and development; and 12 13 WHEREAS,the Monroe County Development Review Committee("DRU)reviewed and 14 considered the proposed amendments at a regularly scheduled meeting held on the August 25, 15 2020; and N 16 17 WHEREAS, at a regularly scheduled meeting held on October 28, 2020, the Monroe 18 County Planning Commission held a public hearing for the purpose of considering the proposed 19 amendment and provided for public comment; and 20 c 21 WHEREAS, the Monroe County Planning Commission adopted Resolution No. P29-20, 22 recommending approval for the proposed amendment, with edits identified in the resolution for 23 Policies 101.2.2, 101.3.10 and 101.3.12; and z 0 24 CL 25 WHEREAS,the Monroe County Board of County Commissioners is authorized by Florida 26 Statute § 125.01(1)(h)., to establish, coordinate and enforce zoning and such business regulations 27 as are necessary for the protection of the public; and 28 > 29 WHEREAS, at a regularly scheduled meeting held on January 20, 2021, the Monroe 30 County Board of County Commissioners held a public hearing, considered the County's 31 professional staff report, and provided for public comment and public participation in accordance 2 32 with the requirements of state law and the procedures adopted for public participation in the 12 33 planning process; and 0 34 ?:i CL 35 WHEREAS,at the January 20,2021,public hearing,the Monroe County Board of County 36 Commissioners voted to transmit the proposed amendments to the Department of Economic LU 37 Opportunity to review the proposal, with a modification to Policy 101.3.12 to eliminate the Z 38 requirement for a development agreement; instead requiring a resolution approving a contract; and z 39 40 WHEREAS, at the January 20, 2021, public hearing, the BOCC adopted Resolution No. 0i 41 041-2021, transmitting the proposed text amendment to the State Land Planning Agency; and 42 43 WHEREAS, the State Land Planning Agency reviewed the amendment and issued an 44 Objections, Recommendations and Comments ("ORC")report, received by the County on March 45 30, 2021; and 46 Ordinance No. -2021 Page 3 of 20 File 2020-067 Packet Pg. 3449 S.1.ai I WHEREAS,the ORC report stated that"the Department [of Economic Opportunity] does 2 not identify any objections or comments to the proposed amendment"; and 3 c- 4 WHEREAS, Monroe County has 180 days from the date of receipt of the ORC report to 0. 5 adopt the proposed amendment, adopt the amendment with changes or not adopt the amendment; 6 and ' N 7 8 WHEREAS, at a regularly scheduled meeting on April 21, 2021, the BOCC held a public 9 hearing to consider adoption of the proposed Comprehensive Plan text amendment; and 10 11 WHEREAS, Monroe County policies and regulations adopted in the Monroe County 12 Comprehensive Plan and Land Development Code are to maintain public health, safety, and 13 welfare of the citizens of the Florida Keys and to strengthen our local government capability to 14 manage land use and development; and 15 16 WHEREAS, based upon the documentation submitted and information provided in the 0 17 accompanying professional staff report, the Monroe County Board of County Commissioners 18 makes the following findings of fact and conclusions of law: 0 19 20 1. The proposed amendment is consistent with the Goals, Objectives and Policies of the c 21 Monroe County Year 2030 Comprehensive Plan; and CD 22 2. The proposed amendment is consistent with the Principles for Guiding Development for W 23 the Florida Keys Area of Critical State Concern, Florida Statute § 380.0552(7); and 24 3. The proposed amendment is consistent with Part 11 of Chapter 163, Florida Statutes. CL 25 26 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY i 27 COMMISSIONERS OF MONROE COUNTY, FLORIDA: 28 29 Section 1. Recitals and Legislative Intent. The foregoing recitals and statements of 30 legislative intent are true and correct and are hereby incorporated as if fully stated herein. 31 2 32 Section 2. The Monroe County Comprehensive Plan is hereby amended as follows: 12 33 Proposed Amendment: deletions are stfi ke *h-otigi.; additions are shown in underlined. CL 34 35 Objective 101.2 36 As mandated by the State of Florida, pursuant to Section 380.0552, F.S. and Rule 28-20.140, < z 37 F.A.C., and to maintain the public health, safety, and welfare, Monroe County shall maintain 38 a maximum hurricane evacuation clearance time of 24 hours and will coordinate with the State 0 39 Land Planning Agency relative to the 2012 Memorandum of Understanding that has been 40 adopted between the County and all the municipalities and the State agencies. 41 42 Policy 101.2.1 43 Monroe County shall maintain a memorandum of understanding with the State Land 44 Planning Agency, Division of Emergency Management, Marathon, Islamorada, Key E 45 West, Key Colony Beach, and Layton to stipulate, based on professionally acceptable Ordinance No. -2021 Page 4 of 20 File 2020-067 Packet Pg. 3450 S.1.ai I data and analysis,the input variables and assumptions, including regional considerations, 2 for utilizing the Florida Division of Emergency Management's (DEM) Transportation 3 Interface for Modeling Evacuations ("TIME") Model to accurately depict evacuation CL 0. 4 clearance times for the population of the Florida Keys. E 5 c U 6 Policy 101.2.2 7 Monroe County shall coordinate with all the municipalities, the State Land Planning 8 Agency and Division of Emergency Management to update the variables and assumptions 9 for the evacuation clearance time modeling and analyses of the build-out capacity of the 10 Florida Keys Area of Critical State Concern based upon the release of the decennial 11 Census data. Pursuant to the 2012 completed hurricane evacuation clearance time 12 modeling by the State Land Planning Agency, which incorporates the 2010 Census data, 13 the County may allocate 10 years' worth of growth (197 x 10 = 1,970 allocations, 197 14 annual ROGO rate based on Rule 28-20.140, F.A.C.) through the year 2023, while 15 maintaining an evacuation clearance time of 24 hours. The County- adopted;a slower 16 rate of annual allocations for market rate development to extend the allocation timeframe 0 17 to 2026 .3. without exceeding the total of 1,970 allocations (see Policy 101.3.2). The 18 County shall reevaluate the annual ROGO allocation rate based on: 1) statutory changes 0 19 for hurricane evacuation clearance time requirement standards; 2) new hurricane -19 20 evacuation modeling by the State Land Planning Agency and Division of Emergency � 21 Management; and 3)a new or revised memorandum of understanding with the State LandCD 22 Planning Agency, Division of Emergency Management, Marathon, Islamorada, Key 23 West, Key Colony Beach and Layton (see Policy 101.2.1). 24 CL 25 Notwithstanding the foregoing and -1—luant to Policies 101.3.2. 101 3 3 and ]01 3s12., 26 Monroe County s1�g11 establish a new allocation _c,mL ory tt� acce t_ a�mtlmaward 300 eti 27 workforce tiousing..eadIv evacna it>n � i�t�b��ildln Herz l�t allt>ca�t�t>ns �ursuant..:to the � 28 orkft.)rce_ .fft.)rdmable FIousin initiative (1't llcy__lf}l 3 l2 t�rl ft�rce 1nit amt ve 11�ese 29 allocations are in addition to the� aximu allocations identified In ules..2.8.-20.. ...�.C-, 30 and sha11 be re�Lirecl tt> evacLa e in 1'frase I t>f` tFre 4 �Frr evacna ion of a )endini4 rnator 31 hurricane, . . . 2 32 12 33 Policy 101.2.3 0 34 The County will consider capital improvements based upon the need for improved c.I 35 hurricane evacuation clearance times. The County will coordinate with the FDOT, the U1 36 state agency which maintains U.S.1, to ensure transportation projects that improve w c, 37 clearance times are prioritized. 38 z 39 Policy 101.2.4 40 In the event of a pending major hurricane (Category 35) Monroe County shall ®i 41 implement the following staged/phased evacuation procedures to achieve and maintain 42 an overall 24-hour hurricane evacuation clearance time for the resident population. 43 1. Approximately 48 hours in advance of tropical storm winds, a mandatory evacuation 44 of non-residents, visitors, recreational vehicles (RVs), travel trailers, live-aboard 45 vessels (transient and non-transient),affd military personnel anc�units__gpprt�vec�.:__a c� °i E 46 deed restricted as workforcehousWu early__evacuation Units from the Florida Keys � Ordinance No. -2021 Page 5 of 20 File 2020-067 Packet Pg. 3451 S.1.ai I shall be initiated. State parks and campgrounds should be closed at this time or sooner 2 and entry into the Florida Keys by non-residents should be strictly limited. 3 2. Approximately 36 hours in advance of tropical storm winds, a mandatory evacuation CL 0. 4 of mobile home residents, special needs residents, and hospital and nursing home E 5 patients from the Keys shall be initiated. 6 3. Approximately 30 hours in advance of tropical storm winds, a mandatory phased y 7 evacuation of permanent residents by evacuation zone (described below) shall be 8 initiated. Existing evacuation zones are as follows: 9 a)Zone 1 -Key West, Stock Island and Key Haven to Boca Chica Bridge (MM 1-6) c 10 b) Zone 2 - Boca Chica Bridge to West end of 7-mile Bridge (MM 6-40) 11 c) Zone 3 - West end of 7-Mile Bridge to West end of Long Key Bridge (MM 40- 12 63) 13 d)Zone 4 -West end of Long Key Bridge to CR 905 and CR 905A intersection(MM 14 63-106.5 and MM 1-9.5 of CR 905) 15 e) Zone 5 - 905A to, and including Ocean Reef(MM 106.5-126.5) � 16 0 17 The actual sequence of the evacuation by zones will vary depending on the individual 18 storm. The concepts embodied in this staged evacuation procedures should be embodied 0 19 in the appropriate County operational Emergency Management Plans. -19 20 � 21 The evacuation plan shall be monitored and updated on an annual basis to reflectCD 22 increases, decreases and or shifts in population;particularly the resident and non-resident 23 populations. 24 CL 25 For the purpose of implementing Policy 101.2.4,this Policy shall not increase the number 26 of allocations to more than 197 residential units a year, except for affordable housing. 27 Any increase in the number of allocations shall be for affordable housing. Monroe � 28 Ir bvma c its 300 workf`c�rce (af`f`c�rtlable} Iiousin4 early evacuation Unit builclin� errnit > m 29 a1ltra:t.t>ns pLrsLant tt>..:the ..t>.rft>.rcefftrtlable Ho in nitatrve.. l'tllcv lf}le3el2 30 Rio orkforce fniti trve aLrtht>rraecl by the vlt>rrcla mclrninistramtion Commission and the � 31 I-lorida De .a?.trnent l t�21 is C3pptrrtLrnity These �11t���tit�nsmmm�re inm �t�t�itit�n mtt� the 32 Maximum allocations identified in Rules 28-20, p.�..C., shall be restricted �to rental 2 33 o cnpancv for those who derive at least 70% cif their incorne as members cif the workforce 34 in Monroe C OuntV and who meet the affordable 1rous"n�inct�rne cate�t�rres of the Monroe CL 35 Coun..ty land Developlr n.t C ode The allocations slial l be rags cared �to evacuate in Please 36 I of the 48_hr evacuation ling rnait>r hurricane_ No new additional residential LU _. m_ ________ ____ ___ _____ ___ ___ __ __ _ - U 37 dwell lease I of`the 48-fir evacuation 38 Lnlessmap rc vetI anti VLwidedby them loridamm�dministramtion Cmommmission anti the lorida Z 39 Depa1tr ent cunt is C M.111L11!ity after review of"hurricane evacuation modeling results _........... 40 b the State f and 'lannlAgy_ and the Division of EI rn �1anagernent of Vm__ m m _ i 41 available evacuation capacr w ` ` )acity, 42 fc>rall blic facilities.n � CV 43 44 Objective 101.3 45 Monroe County shall regulate new residential development based upon the finite carrying E 46 capacity of the natural and man-made systems and the growth capacity while maintaining a 47 maximum hurricane evacuation clearance time of 24 hours. e( Ordinance No. -2021 Page 6 of 20 File 2020-067 Packet Pg. 3452 S.1.ai 1 2 Policy 101.3.1 3 Monroe County shall maintain a Permit Allocation System for new residential CL 0. 4 development known as the Residential Rate of Growth Ordinance (ROGO) System. The E 5 Permit Allocation System shall limit the number of permits issued for new residential 6 dwelling units. The ROGO allocation system shall apply within the unincorporated area y 7 of the county, excluding areas within the county mainland and within the Ocean Reef 8 planned development (Future development in the Ocean Reef planned development is 9 based upon the December 2010 Ocean Reef Club Vested Development Rights Letter 2 10 recognized and issued by the Department of Community Affairs). New residential 11 dwelling units included in the ROGO allocation system include the following: affordable 12 housing units; market rate dwelling units; mobile homes; ftHd institutional residential 13 units (except hospital rooms)- twt rl f`t rce,l t L,s_ing e ly evacuation Units, 14 15 Vessels are expressly excluded from the allocation system, as the vessels do not occupy 16 a distinct location, and therefore cannot be accounted for in the County's hurricane 0 17 evacuation model. Under no circumstances shall a vessel, including live-aboard vessels, 18 or associated wet slips be transferred upland or converted to a dwelling unit of any other 0 19 type. Vessels or associated wet slips are not considered ROGO allocation awards, and 20 may not be used as the basis for any type of ROGO exemption or THE(Transfer of ROGO � CD 21 Exemption). 22 23 ROGO Allocations for rooms, hotel or motel; campground spaces; transient residential 24 units; and seasonal residential units are subject to Policy 101.3.5. CL 25 26 Policy 101.3.2 <1 27 The number of permits issued for residential dwelling units under the Rate of Growth 28 Ordinance shall not exceed a total of 1,970 new allocations for the time period of July 13, 29 2013 through July 12,2026,plus any available unused ROGO allocations from a previous 30 ROGO year and 300 wor_kforce_1ousi_. eariv__evacuationmunit build rr It allocations m ___ ____ ___ n m 31 � authorized h Florida De)a trnent; . :, 32 1 c ono nic 02p2rtunitv,. A ROGO year means the twelve-month period beginning on July 33 13. Market rate allocations shall not to exceed 126 residential units per year. Unused 0 34 allocations for market rate shall be available for Administrative Relief. i c. 35 U 36 In 2012, pursuant to Rule 28-20.140, F.A.C., the Department of Economic Opportunity W 37 completed the hurricane evacuation clearance time modeling task and found that with 10 Z 38 years' worth of building permits, the Florida Keys would be at a 24 hour evacuation z 39 clearance time. This creates challenges for State of Florida and Monroe County as there 40 are 8,168 privately owned vacant parcels [3,979 Tier I; 393 Tier 11,260 Tier III-A (SPA); ®i 41 3,301 Tier III, and 235 No tier (ORCA, etc.)] and with 1,970 new allocations this may 42 result in a balance of 6,198 privately held vacant parcels at risk of not obtaining permits 43 in the future. In recognition of the possibility that the inventory of vacant parcels exceeds 44 the total number of allocations which the State will allow the County to award,the County 45 ado tec1..a slower rate of' annual allocations for market rate develt�pj ent tg extend the °i 46 allocation tir efra e to 2026 and ismacc°e trn,� 300 workforce affordable housing early. � 47 evacua:tion...:unit building permit allocations Vursuant �to the Workforce-Affordable e( Ordinance No. -2021 Page 7 of 20 File 2020-067 Packet Pg. 3453 I Housin_q...!niltiative....(I)�.Ili the Florida ............................. .............................. 2 Administration Commission and the Florida 3 workforce housing to the maximurn CL ............................................................................ 0. 4 bui-1-din ,C, The Countv-'will consider E 0 5 adopting an extended timeframe for distribution of the ROGO allocations through 2033 6 with committed financial support from its State and Federal partners. This timeframe can 7 provide a safety net to the County and provide additional time to implement land 8 acquisition and other strategies to reduce the demand for ROGO allocations and help 9 transition land into public ownership. .2 10 11 The County is actively engaged in acquisitions and is requesting its State and Federal > 12 partners for assistance with implementing land acquisitions in Monroe County. The >% 13 County will allocate the 1,970 new dwelling unit allocations throu_qj'j..jjjty ............14 If substantial financial support is provided by July 12, 241-92023, 15 the County will reevaluate the ROGO distribution allocation schedule and consider an 16 extended timeframe for the distribution of market rate allocations (through a 0 17 comprehensive plan amendment). Further,the State and County shall develop a mutually 18 agreeable position defending inverse condemnation cases and Bert J. Harris, Jr. Private 0 19 Property Rights Protection Act cases, with the State having an active role both directly -19 0 20 and financially in the defense of such cases. ?: 21 CD CD 22 The County shall distribute ROGO allocations by ROGO year, as provided in the table C z 23 below. 0 24 1-- CL Annual Allocation 0 ROGO Year a 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 2 12 N/A .............. July 13, 2017—July 12,2018 126 . 0 July 13, 2018—July 12,2019 126 CL July 13, 2019—July 12,2020 126 568 total AFH July 13, 2020—July 12,2021 64 (total available U z July 13, 2021—July 12,2022 64 immediately) z July 13, 2022—July 12,2023 64 0 July 13, 2023—July 12,2024 62 300** ....................... July 13, 2024—July 12,2025 62 cv July 13, 2025—July 12,2026 62 TOTAL 1,260 710* 30()** ........................ E *Includes two annual affordable ROGO allocations for the Big Pine Key/No Name Key subarea)through the Incidental Take Permit(ITP) ending in 2023. Ordinance No. -2021 Page 8 of 20 File 2020-067 Packet Pg. 3454 Workforce hQLISjWcu 'dC U11'ricorort aed t -wI I iests for dwelfirit!units deN,,--'---d arid/or deed- .......................................................... restricted..Lit'.1i jjjj)� the �yorkforce�housir�igearl� -_601`1 Url't aIIocat'or.s..ale..s CL .............................................. .............................i............................... l Po 'cv 101.3.12. ............ E 0 2 The State of Florida, pursuant to Administration Commission Rules, may modify the 3 annual allocation rate. Monroe County will request a Rule change from the 4 Administration Commission to authorize the above allocation timeframe and rate. 5 6 7 8 Policy 101.3.3 9 Monroe County shall allocate at least 20% of the annual allocation, or as may be 10 established by the State of Florida, pursuant to Administration Commission Rules, to 11 affordable housing units as part of ROGO. Any portion of the allocations not used for 12 affordable housing shall be retained and be made available for affordable housing from 0 13 ROGO year to ROGO year. Affordable housing eligible for this separate allocation and 14 workforce o si W Ii u n&.��IE!y evacuation un4s shall meet the criteria specified in Policy .............................................................................. 15 601.1.4 and the Land Development Code, but shall not be subject to the competitive 0 4- 16 Residential Permit Allocation and Point System in Policy 101.6.4. Any parcel proposed 0 17 for affordable housing or workforce_housi , early evacuation units shall not be located ?: ------- 12.6....................................... CD 18 within an area designated as Tier I as set forth under Goal 105 or within a Tier 111-A 19 Special Protection Area as set forth in Policy 205.1.1. Z 20 0 21 Notwithstanding the foregoing, and notwithstanding Policy 101.6.2. affordable housing CL 0 22 ROGO allocations may be awarded to Tier I or Tier 111-A properties which meet all of 23 the following criteria: 24 1. The property contains an existing market rate dwelling unit that meets the criteria in > 25 LDC Section 138-22(a) and is determined to be exempt from ROGO; 26 2. The proposed replacement affordable dwelling unit meets current Florida Building 27 Code and is not a mobile home; 28 3. The proposed replacement dwelling unit shall be deed restricted for a period of at least 2 12 le 29 99 years as affordable housing pursuant to the standards of the Land Development 0 30 Code; and ?:1 31 4. The proposed site plan for the replacement affordable dwelling unit does not propose CL U 32 any additional clearing of habitat. LU 33 U Z 34 Policy 101.3.4 < Z 35 The Permit Allocation System (or Rate of Growth Ordinance) for new residential 36 development shall specify procedures for: 0 37 1. establishing the annual number of permits for new residential units to be issued during 38 the next ROGO year based upon, but not limited to the following: 39 a. expired allocations and building permits in previous year; C44 40 b. allocations available, but not allocated in previous year; 41 c. number of allocations borrowed from future quarters; 42 d. vested allocations; E 43 e. modifications required or provided by Administration Commission Rules; Ordinance No. -2021 Page 9 of 20 File 2020-067 Packet Pg. 3455 S.1.ai I f. modifications required or provided by this plan or agreement pursuant to Chapter 2 380, Florida Statutes; and r_ 3 g. receipt or transfer of affordable housing allocations by intergovernmental CL 0. 4 agreement; and E 5 h. receipt or transfer of allocations pursuant to the 2012 Hurricane Evacuation 6 Clearance Time Memorandum of Understanding. 7 2. allocation of affordable housing, workforce housing early evacuation units and market 8 rate housing units in accordance with Polici sy 101m3m2mand 101.3.3; and � 9 3. timing of the acceptance of applications, evaluation and scoring of applications, and 2 10 issuance of permits for new residential development during the calendar year. 11 > 12 Policy 101.3.5 13 Due to the limited number of allocations and the State's requirement that the County 14 maintain a maximum hurricane evacuation clearance time of 24 hours, Monroe County 15 shall prohibit new transient residential allocations for hotel or motel rooms, campground 16 spaces, or spaces for parking a recreational vehicle or travel trailer until May 2022. 0 17 Lawfully established transient units shall be entitled to one unit for each type of unit in 18 existence before January 4, 1996 for use as a ROGO exemption. (Ord. No. 024-2011) 0 19 20 Policy 101.3.6 c 21 All public and institutional uses (except hospital rooms) that predominately serve theCD 22 County's non-transient population and which house temporary residents shall be subject 23 to the Permit Allocation System for residential development, except upon factual 24 demonstration that such transient occupancy is of such a nature so as not to adversely CL 25 impact the hurricane evacuation clearance time of Monroe County. 0 26 e( 27 28 > 29 Policy 101.3.9 30 For those ROGO applications and properties which have not received a ROGO award for 31 four consecutive years and have applied for administrative relief, which are designated 32 Tier I, II, or IIIA, the County or the State shall offer to purchase the property if funding 33 for such is available. Refusal of the purchase offer shall not be grounds for granting a 34 ROGO award. ?:i CL 35 36 Policy 101.3.10 37 Notwithstanding any other provision of the Plan., exc t the last sentence of this I't>licy Z 38 I_q.L. ....Iff, b�ilclig allocations utilized for affordable housing projects may be 39 pooled and transferred between ROGO sub-areas, excluding the Big Pine/No Name Keys 40 ROGO subarea, and between local government jurisdictions within the Florida Keys Area ®i 41 of Critical State Concern (ACSC). Any such transfer of affordable housing allocations � 42 between local government jurisdictions must be accomplished through an interlocal 43 agreement between the sending and receiving local governments. fnmterlocalm �reernents � 44 that involve ss',g1jizaV tifc ,o n 's affordable houslza >knot including affordable housing 45 allocations banked for takings cases} allocations ��1 ��ai�tr��� c�iti��llrt� 7v1�r�s itirt/�rt� � � 46 ��ZLLd.C, ulr�� wltl� �re uirer ent that the associated market rate RmC G011"BP� exec donors � 47 be transferred into the unincoj2 rated County as �� excl�an�e for the affordable housing _m m _m m_ _______ __ m_m Ordinance No. -2021 Page 10 of 20 File 2020-067 Packet Pg. 3456 I allocations transferred to..t e...i-yiu i i a i shall be accolyip.l.istied....ttirou_ql,.I......A.....j inor ................................................................................................................... ...b P 1....N_�...shall.................................................... ....................... ........................ ................. 2 conditional use roval and shall be M mit a)��------------------------------------------�.L�b r_ 3 -1 0 orated Countv, fn no CL 4 event shall theCountv__(jjR�jgj i2d transfer workforce housing early acuation unit event ---- -.1 ----------------------------------------------------------------__eLg------ E 5 allocations between ROGO sub-areas.-(21_transfer workforce housing early evacuation 0 ..................................................................................................................................................................... 6 Linit allocations to another sini_4� early N ----------------------------------------- 7 e.y.a.c..u.A.0 o.n....U.nit..bui I din i4 allocations fro another �-yoveminen�j.urisdiction,..or..(,41tr,-tnsfer ... ........ ............................................ ........................................... 8 affordable housing ROGO allocations received bv_tlie County in_exchange for workforce l'i u in ear --t-__u---rj's-5 0 9 nit allocations to anoth iction, 10 11 > 12 Policy 101.3.11 13 Monroe County may receive additional building permit allocations pursuant to the 2012 14 completed hurricane evacuation clearance time modeling and allocation 15 recommendations by the State Land Planning Agency and the Administration 16 Commission's direction that the City of Key West wE.*44 transfer annually (by July 15th) 0 17 any remaining unused allocations for that year to the other Florida Keys' local 18 governments based upon the local governments' ratio of vacant land. Any transferred 0 19 allocations from the City of Key West to Monroe County shall be made available for -19 20 Administrative Relief. Monroe County rnav receive., and award 300 b Ldt ig 0 -----------------------------------------------------------------------------------------U-i tL _VLrrnit ?: 21 allocations dg��isy ated as workforce housim4 early evacuation units Dursuant to the CD ....................................................... --= ........................................... .......................... .................................. 22 'A,'-orkf(.)r-ce--A.ff(.)rd-ab-le Ho-u-s-ina_fnitiative_�Policy...j�j_,3_j_2 "`ork_ft)rc_e fni-tiati-L91 as. 23 prt yi e by the Florida Administration Commission and the Florida D.1-1-h— z d.....d................. 0 24 Econoi-nic_()ppL)rtLinit7,�,_]'Iiese allocations thatare in addition to the maximurn allocations - CL 25 identified in Rules..28-20., F,A.,C,., and shall be required to evacuate in Phase I offthe ,48- 0 ............................................................................... ............................................................................................................................_qj 26 lir--ev-ac-uati-on--of'_a_joaencli�n �)_r1i_urrj_ca_ne, <1 27 28 Policv 101.3.12 29 Workforce Initiative. To su ort Monroe s workforce fleviating ------------------------------- ---------------------j------- _y��_ LtjsjEqi_nts 30 on affordable 1i toarotect2rivate property lits and addressn alji_�tili�L 31 a e C in the " orkforce-AfTordable Housim4 Initiative 0Wnr]Jnr(,P I oun ty is art1cl atim4 ............._....................... ......... 32 roved durim4 the June 13., 2018 rneetim4 of the Florida Administration 33 C..o..i.-.n..i.-.n..i..s..s..i..o.n...........M.Q.n.ro.e C.Q.U.n cuation 0 34 b il ?: 11-Aius�l�allocations to th-c 'A,'o-rkf(.)rce--A.-f'f(.)rd-ab-1.�L--Egii�i-n,�-T initiative CL 1 35 authorized.. the Florida Department ............................................. ...................................... 36 con 11ni_.c 0 rtunity-,-----T---h---e-----"--o---r-k---f--o-r--c--e------A--f-f--o---r--d---a-b-l-e------H----ou-s-im4 initiative will reciL,ire U 37 d ell' onstructed and"or deed restricted with workforce housina early IV .......... . z 38 ev-ac-uati-on---b-u i-I d W. errnit a11t>ca it>ns tt> evacua e t>ccupants in Phase I of' the 48-lir z 39 evacuation of'.apg�qdin2����.p t I ................................................................... e.r..i..a...he....oVw., .......... ....... ............. 40 0 41 To in the " orkforce fnitiative,Monroe County shall be resDonsible for the .............. .............................................................................................................................. ................................................................. 42 rn-ana. irernents associated with the C44 43 workforce housing early evacuation building.p.��IjEit allocations, Monroe Countv shall CD workforce ........................................................................................................................ C44 44 ensure adherence to these_L��q ......I ' this th o...u_.I�4L],i_ii-nplei-nernytcTti(o.)n of this-policy-and shall --------------------------------------------------------- 45 annually provide to the FI orida.Department Econornic.0 r ort indicating........................................................................................................................................................................................................................pa� N E 46 number of' workforce housing early...��Lqcuation units built and/or deed restricted., units mbuilmt oc u a c rates. a d c 9.....p ........n ornp V .liance with the rec the units in Phase f of' ...... ................... ..........................................................................1.uirerneryrto evacuatehe unyts in Phase I of Ordinance No. -2021 Page 11 of 20 File 2020-067 Packet Pg. 3457 I an evacuation, The annual.re rt..s shall be.p.jgvided to the State in a timely manner such ..........................................................................................................................p ... .....................y- 2 that the State may include the inf(.)ri-nation_in_tli _r [Ltred Annual Report toydne Governor - -_ - - - - - - - - -_ - - - - ei M --------------------------------p�_ 3 and Cabinet on the County: ..�LjjEp jetion of its Work.Pnjg�q! ..P!11�11ant CL and .ly..... ........................................................................................ ............. 4 to Rule 28-20,F,A.,C, ---------------- E 0 5CJ 6 Dwelling_LnjjLA�jb�eij -�i2d/or deed restricted utilizi g the_ �)wellin Units __L ----------------------------------------------------------n workforce housing early 7 gl. .Agua.ti o.n.....u.D.J.I....a.1 boc-atioD s....alesubj�g�jo the following: .......... ................................................................. 8 9 (a) Re allocations shall be available 10 onlv--f'(.)r--a---I---f(.)r--]----ex-clia-m4e f'or afTordable allocations,,"exei-nntions an-d--re lire a --------------- I U---------- 11 reservation via BOCC resolution, The BOCC m at its discretion....pjg�j� .reservation ............................. > 12 conditions -on an reservation as it deerns a.IML.) iatel The B1300CC mavy., at i -----------------D-----------------i---------------------------------------------------------g 2r—-------------L. 13 discretion reserved aff(.)rdable allocations f(.)r allocations under .......................................... .........isique e� m_xi gi n gy........................................................................................................................................................................................................................................... 14 the Worki"orce fnitiat' Lle devel( ment and no rofit sector e rtnrs --------- 15 W.illim4 to meet the reclurrements of' the workf(.)rce liousing.ea.fly evacuation unft---- ....... .....early 16 al-i-oca-ti-o-n-s-,---Furtlie-r-.,--tlie--B-OC-C--- rove the exc,ian e cif` 0 17 e is,in deed restricted aff(.)rdabl .1 (lawf'ul afTordable exei 1 .......... Lin�its �aul_a�a�n t�ions at 18 existing i-nLiltifii-nilv_.LesicteIltial_devel()I)i-nents for allocations under the Workforce 0 4- 19 .fnitiative to I�e� e e.l...o . e t ant1. n D_p .. ....I...n..g-to meet the 0 20 LeqLu-irei-n-ents--of'-tli-e-w-ork-f'(.)rc-e-tiousi-n� earl v--eva-c ua-ti-onunit-al I-oc a-ti-on s-,. 21 nov in exchan e f(.)r workf(.)rce 22 housim4 early evac ua-ti-on unit alIocationssh a-1-1--b eb an ke-d--an-d--used f`or f'Lrture. 23 administrative relief inverse z .......................................................................................... 0 24 condemnation cases and Bert J, Harris., Jr, Private Propeqy _iglus Protection CL 25 Act cases, 0 ...................... a 26 _(1)---To-In-ai-n-ta-in---c_o_n_s_is_tencv---wi-th-lul-e-28-10,1_40�,2)(b)., F,A_C,., the affordable <1 27 allocations returned to the Coun. .......................................................................................................................................... 28 and shall also be returned to--d'e-oi-44inal affordable housim4 catei4ory ��eiv-------------------------------------- ---------- 29 lowl"lowl"Median income vs, moderate income vooU, ............... ................................................................................................................................................................ 30 �)_]'h_eworkf()rce housing eirlv_.eLac-u-ation--un-it-a-11-oc-a-ti-on-s-i-n-u-s-t-be-ut-il-iz-ed-b-as-ed. 31 on the or a lesser income ..................................... 2 32 cate (_)ry, 12 33 (4) Administrative relief'rneans actions take1j.by the Coun the owner of ..y-L C aunty granting........ ................................. 0 .................................................................................. , ?: 34 real 2L.)pertK relief from the continued application of the Rate of Growth I -------------------------------------------------------- CL 35 QWJDa ...(RQQQ islied in U 1 36 -th--.e.-..-..C. -.-..o....-..-..n-..-p. ..r....e....�.j..j...e..j..s....i.-v....e.....-..P...l..-..a. n. anti ._._L.,'anti D-eveig 37 (5) Beneficial u se.means tl.ie use.Of.Pr LUzU 38 or rofit in the exercise of'_a_basi c_2r(pertK_jjRyt, Foi-fire j)ur ose of this �cIticy., z 39 beneficial use shall mean the minimum use..of'.ttie.p p necessary to avoid ................................................................................................................................................................................................. ......................... _Eg �ej�y_ W 40 the f ndim4 of` re�4ul takim4 under current land use case law, 0 L --i---------11_T 0 1 11-1-T u I IT t 0 r y------------ 41 (b) njg..construction f.dwelling_units....Qje..Edey�j.Qp 0 .1 ent or the deed restriction of' ................................................................................................... ................................................................................................................................... 42 ex-I s-tin early-----evacuation-----uni-t. 43 allocations shall.require a? oval of'a resolution.a r vi j_p_1__ _p�p_g__n .................................................................. .......... ................................................................... C44 44 BOCC an --th licant to officially exc1iam4e the allocations and confirm 45 cjj Nance with the requirements Worki"orce initiative within this PolicV. ............................................................................. E 46 (c) _A.11_workf(.)rce housim4 early evacuation units require a deed-restriction ensuring: --------------------------------------—--------------------------------------------- 47 (1) 13.ef tyre..sqjy building permit may be issued for any gructure...p rtio o p-----_-p------—-----------. . ...............R.-T Ordinance No. -2021 Page 12 of 20 File 2020-067 Packet Pg. 3458 I a..p egj..sjjbject to the Workforce fnitiati g a restrictive covenant shall be ........................................................................................Y 2 �i _11,1��J)Lqn-n-im4 Director and County_-A.-ttomev--a-nd--rec-o-rde-d--i-n---th-e� 3 Office of' the-Clerk of' the Coun yision of' CL ............................................................................................................................................ ............... 4 this section running in favor of the County and enforceable bv the County and., --------------------------------------n------------------------------------------- County----------- E 11 -neryus shaii 0 5 e. a ments shall�p I i c..abl artici cytingy munici )win ..r quirei p .... ...............................P-c------------- The f'oll(--p .................. 6 ijjply to these restrictive covenants: ------------------------------------------------------------------- 7 a, The covenants ts..f(.)r any workforce housing..e�j y evacuation units shall be ............................................................................ ........................ 8 effec-ti-ve-f(.)r-99-ve-ars, 9 b, The covenants shall not commence running....until a certificate ofoccu a a n ................................................................................................................................................................................. 10 has been issued by the BuildiII&Officialfoi-the dwelling Unit or dwelling --------------------------------------------------------------- 11 units to which the covenant or covenants.1 .ply, Units �g) � - > 12 c. r or exist m4 dwellim4 units that are deed-restricted as workforce housing 13 early evacuation covenants shall commence running...Ilp early........... .......................................................................................................................................................................... 14 record-ation--i-n--the--Official--R-ec-ord-s-of'--Mon-roe-Countv, 15 housin , early evacuation units 16 to be restricted to rental occ f(.)r those who derive at least 70% of their.1112sin c,�� 0 -------------------------------------- ----------------------------------------------------------------------------------------------- 17 income as members of' the workf(.)rce in Monroe County and who meet the ........................................................................................................................................................................................................................................................ 18 affordable housim4 income categories of' the Monroe Countv L,and ----------------- 0 19 Dev I p .................9 Q ja��jq...Cc de, The occ ants are reLj -19 .................................................Lip............................I ��ired t�oannually verify 20 ��1]2plov_tll��L_(.,,L�qLt_incoi-ne el )Jbility, 0 21 cuate in Phase I of' the 48-fir 22 ey-ac-gati-on---of'--.a--Re ending i�n,itIL__Ilu-rri-can-e,---Pe-r-s-ons---I-iving in the workforce 23 housinv eariv evacuation units who may be exern ted from evacuation z .................... ....................... 0 24 LeLquirernents are limited to law enforcement., correctional and fire_12�1�� ----------------------------------------------------------------------------------------------------------------------------------------------- CL 25 health..care..p 1H.1 anti ic empl . ees with emergency management 0 ::In y� ........................... ................... Tit ............... g _ a 26 Les2gn-sibjrtie-s-,--ff-there---is In---occu ant that indicates their em I ov lien t is < 27 con si dered a�first-re pgjj�j�p.E.p s g5ition' and not included in the list orexern tions ............................................................................................ ............................................................................................................................................................................p........... 28 above. then---the---P I-a n-n-i n- whether the 29 remain durina an P iHi i 30 erne I A_n --env S ,-I�L,e cy i hall submit 31 of affidavit of the onsite ............................................................................ 32 pLgp,ejrry -LjnTernen�t- 33 ejaents which contain a s p ............................................................................................................e. 0 34 disclosure reaurrim4 rental occu ants to acknowledge the existim4 restrictive - - -- -- ----------- CL 35 covenant on the in Phase I of' the 48-fir ti on ..........................................................................11flil 36 and that f,iilure to adhere to the Phase I eva-cuati-on-re-quirement could result in 37 severe_p�gnajjie . cunt s. inlu..........q...........d.J. -p t z ............... 38 L ) The----coyen-ants-----s_h111----reguire on� yte �.LgrtK Ls!Ig EL <z 39training ,c,n...eva ,u,a,6,on,40 and an acknowlech4eent that failure to adhere to the Phase 1 0 -------------------------------------------- rn 41 evac irement could result in severe e alt es includim4 termination, ..............!!� lon.W�.L.-um could result in�er�..n......1 42 (d) �`orl�ft)rce housing early evacuation units shall be restricted to rental occ ---------------------------L�-------------------------------------------------------------------------------------------------------- 43 f(.)r those who derive at least 70% of their incoi-ne as i-nei-nbers of'the workf(.)rce in ............................................................................................................................................................................................................................................................................................................................................................................. C44 the 44 Monroe County and who meet the afT()rdabLL--h-o-uL'jjg incoi-ne categories off' 45 Monroe Count7v [.and Develo0ment Code, 'A,orkf(.)rce means individuals or families............................................................. E 46 who are_ 47 r.e..s..i..d.e..n..t.s....o.r....v.i sJ to.r...s.., Ordinance No. -2021 Page 13 of 20 File 2020-067 Packet Pg. 3459 I (e) M,orkf(.)rce housing early evacuation units shall re(luire onsite pro .............................................. ................. .................. ........ perty 2 rn an 3 ation, Durim4 qa.d.i t.i o.n.a.1 CL ............ 4 work L_'ic urs. the must be at an office within the workforce E 5 e t Outside the trac4tional 0 ho s n&e..�qdv evacuation unit devel c p 6 wor - kiD&11—ours. 2 7 e,v,ac,ua, o,n"o,r,de,r,s C arlv :5 8 1!1e_ZUertK en t entity 'IL orkf(.)rce ho s m-y eariv evacuation units --------------------------Ll--!---—--------------------------------------- 9 shall be required to annually verify the em vi-nent anc in—,—p P .2 shall ........................... Lg __I------------------ n---------n---------------- 10 tenants L)rt the totalunits on tiesite., tie ()ccLipincvates ofuits ad tenant 11 c Hance with the re uirernent to evacuate the units in Phase f of eva Sii .. ................................................................. > 12 includim4 the number of' occu ants-----that are --exern t from the evacuation -- - ----- 13 r st submit a r rt to the Plan ....................................................... 14 and Environmental Resources Department by Mav I of each vear, Further--------------------------- , each -- 15 l.ea.....s...e end ....a..n.....n......ua...r..e.. o.r.t..shall...b...e.. kept by the � prt� arty manager an d....b. e...A.Y.ai 1..ah.l.e.. 16 ft>r Inspect t>n by the Coo L Lj ij--traditional working hours,----------11_ 0 17 (g) M,orkf(.)rce housin ....................................18 as Tier f f f, 0 19 (h) M,orkf(.)rce housins=Le, nct -19 ' Zane or 20 within a Coastal Barrier Resource SVstern RS 0 within ?: 21 (i) Workforce Ii o usi CD n&ea� which has 22 all----infras-n-u-cture----a v-ad a-b-I-e--- and 23 disposal wastewater rneetim4 Z P .. ............................................................................. _p dj.., S �p ad 0 24 0) �_tt_Eglkforce housing early evacuation units must dernonstr-ate--cornpliance with- -- - - -- - CL 25 ajj�qpp 0 .1icable federal standards for accessibiliN_f(�.)r persons �disab�ilities�ADA .......................................................................................................................................................................... 26 CLIIi2pji�ance 27 (k) c�.ncable—. a develop I lu.s my early ......................... -1 1....- . ... ................................. 28 evacuation unit allocations shall...incolp .)rate sustainable and resilient design evacuation p agi les into the overall site design and be accessible to empl -P...........................overall......................................................... ovi-nent centers in 30 K-ev--'A,e��-Stoc-k--fsl-an-d--and--Maratti-on-,. 31 2 32 GOAL 601 12 33 Monroe County shall adopt programs and policies to facilitate access by residents to adequate and 0 34 affordable housing that is safe, decent, and structurally sound, and that meets the needs of the ?:I CL 35 population based on type, tenure characteristics, unit size and individual preferences. 36 CJ 37 Objective 601.1 Z 38 l'o-en sure--tli-a-t-a-f'f(.)rd-abl-e-tiou-s-in� o� ortun i ties are available throm4l'i out the entire cornm un i ry Z 39 and to maintain a balanced and sustainable local econoi-yiv and the f essential' .................................................................................................................................................................................................................................................................. 40 s-erv-ic-es.,, Monroe County shall implement the following defined policies to reduce estimated 0 41 affordable housing need for its workforce and households in the very low, low, median and ........................................42 moderate income classifications. 43 44 Policy 601.1.1 45 Monroe County shall maintain land development regulations, in conjunction with the E 46 Permit Allocation System, for apportioning future affordable housing development 47 aw+tf apaa-si,. Ordinance No. -2021 Page 14 of 20 File 2020-067 Packet Pg. 3460 S.1.ai 1 2 Policy 601.1.2 3 Monroe County shall continue__ � p its participation in Federal and State housing CL 4 assistance programs to rehabilitate owner and rental housing for very low, low, median, 0. 5 and moderate income residents by seeking grants, loans, and technical assistance in 6 conjunction with the Monroe County Housing Authority by M 1 2424. 7 8 Policy 601.1.3 9 The Monroe County Land Authority shall maintain a list of buildable properties owned c 10 or targeted for acquisition by the Land Authority which potentially could be donated or 11 made available for affordable housing. This list will be updated annually and made > 12 available to the public. The guidelines established in Policies 601.1.10 and 601.1.11 shall 13 be considered in the formulation of this list. 14 15 Policy 601.1.4 � 16 All affordable housing projects which receive development benefits from Monroe 0 17 County, including but not limited to ROGO allocation award(s) reserved for affordable 18 housing, maximum net density, or donations of land, shall be required to maintain the 0 19 project as affordable for a period of 99 years pursuant to deed restrictions or other 20 mechanisms specified in the Land Development Code, and administered by Monroe � CD 21 County or the Monroe County Housing Authority. 22 W 23 Policy 601.1.5 24 If Monroe County funding or County-donated land is to be used for any affordable CL 25 housing project, alternative sites shall be assessed according to the following guidelines: 0 26 1. The location of endangered species habitat. Sites within known, probable, or 27 potentially suitable threatened or endangered species habitat shall be avoided. 28 2. The environmental sensitivity of the vegetative habitat. The habitat sensitivity shall 29 be determined according to the ranking specified in the Environmental Design 30 Criteria section of the Land Development Code. Disturbed sites shall be selected, 31 unless no feasible alternative is available. 2 32 3. Sites located within V-Zones, on offshore islands, or within CBRS units shall be 12 33 avoided. 0 34 4. The level of service provided in the vicinity for all public facilities. Areas which are i CL 35 at or near capacity for one or more public facility should be avoided. U1 36 5. Proximity to employment and retail centers. Sites within five miles of employment w c, 37 and retail centers shall be preferred. 38 z 39 Policy 601.1.6 40 Monroe County shall identify funding sources that could be made available to support ®i 41 community-based non-profit organizations such as Habitat for Humanity in their efforts 42 to provide adequate affordable housing. 43 N 44 Policy 601.1.7 45 Monroe County shall continue to participate in the State Housing Incentives Partnership E 46 program as specified in the 1992 William Sadowski Affordable Housing Act. Monroe 47 County shall also continue to maintain a Local Housing Assistance Plan and Affordable �t Ordinance No. -2021 Page 15 of 20 File 2020-067 Packet Pg. 3461 S.1.ai I Housing Incentive Strategies as specified in the Act and recommended by the Monroe 2 County Affordable Housing Advisory Committee. 3 CL 4 Policy 601.1.8 E 5 Monroe County shall allocate at least 20% of the annual ROGO allocation, or as may be 6 established by the State of Florida, pursuant to Administration Commission Rules, to y 7 affordable housing units, as specified in Policy 101.3.3. Affordable housing eligible for 8 this separate allocation must meet the criteria established in the Land Development Code. 9 ............................................................. 10 workforce housing earlvmevacuation Lrnits �L�rsL�ant tc� tl�e�o`t�rkft�rce �ff`t�rclable Ht7Llsln 11 fnitiative (Pt>licv If I.3.12 �t>rl�f`c>rce Initiative as provided by the Florida _... 12 Administration Commission and themFlorida De arti ent Economic C3 ortL�nitvThese � 13 allocations are in addition to the� aximu n allocations identified In Liles 28-20, 1- A-C...A 14 are restricted to rental occL ancv ft.)r t1it-se__wlit-_tferive__at least 7f}°o__o their__inc-orne__as 15 members of` the workforce in Munro County anti who meet the affordable housing y _... 16 inct11 e c ate t�rres cif`the Monroe County l and Develc�l)rnent Code., and shall be reclL�irecl 17 to evacuate In Phase l of..the �:8-fir evacuation of.a pentling �nalt�r 1�L�rrrcane 2 18 19 Policy 601.1.9 20 Monroe County shall maintain land development regulations which may include density � CD 21 bonuses, impact fee waiver programs, and other possible regulations to encourage 22 affordable housing. 23 24 Policy 601.1.10 1-- 0. 25 The Land Authority may acquire land for affordable housing projects if they are deemed 0 26 appropriate and acceptable by the Land Authority as meeting the intent of: 27 1. the affordable housing provisions in the Land Authority's enabling legislation; 28 2. the goals, objectives and policies of this Plan; and 29 3. the land use designations specified on the Future Land Use Map and in the Monroe 30 County Land Development Regulations. 31 2 32 Policy 601.1.11 12 33 The Land Authority shall not list or acquire vacan.I lands as potential affordable housing 0 34 sites if the lands exhibit any of the following characteristics: i 35 1. Any portion of the land lies within a known, probable, or potentially suitable CLi 36 threatened or endangered species habitat. 37 2. The land has a Tier designation other than Tier III. 38 3. The land is located in a V-Zone, on an offshore island or within a CBRS unit. _ 39 40 Policy 601.1.12 0i 41 Monroe County shall annually monitor the eligibility of the occupants of housing units 42 which have received special benefits, including but not limited to those issued under the 43 affordable housing provisions specified in the Land Development Code or those issued N 44 through the Permit Allocation System. If occupants no longer meet the eligibility criteria 45 specified in the Plan and in the Land Development Code, and their eligibility period has E 46 not expired, then Monroe County may take any one or a combination of the following 47 actions: e( Ordinance No. -2021 Page 16 of 20 File 2020-067 Packet Pg. 3462 S.1.ai 1 1. require the payment of impact fees, if they were waived; 2 2. proceed with remedial actions through the Department of Code Compliance, as a 3 violation of the Monroe County Code; CL 0. 4 3. take civil court action as authorized by statute, common law, or via agreement E 5 between an applicant and the County; and/or 6 4. require the sale or rental of the unit(s)to eligible occupants. y 7 8 Policy 601.1.13 9 Monroe County shall maintain land development regulations on inclusionary housing and c 10 shall evaluate expanding the inclusionary housing requirements to include or address 11 nonresidential and transient development and redevelopment based on specific data and 12 analysis. 13 14 Objective 601.2 15 Monroe County shall adopt programs and policies to encourage housing of various types, sizes 16 and price ranges to meet the demands of current and future residents 0 17 cu 18 Policy 601.2.1 0 19 Public-private partnerships shall be encouraged to improve coordination among -19 20 participants involved in housing production. In these efforts, the County will establish a � CD 21 comprehensive central depository for housing information located at the Monroe County 22 Housing Authority and Growth Management Division for the coordination and 23 cooperation among public and private agencies which collect and use housing data. 24 CL 25 Objective 601.3 26 Monroe County shall continue implementation efforts to eliminate substandard housing and to i 27 preserve, conserve and enhance the existing housing stock, including historic structures and 28 sites. 29 30 Policy 601.3.1 31 Monroe County shall coordinate with other County agencies to monitor housing 2 32 conditions. Standards for evaluation of the structural condition of the housing stock are 12 33 summarized below: 0 34 Sound: Most housing units in this category are in good condition and have no visible i CL 35 defects. However, some structures with slight defects are also included. U1 36 LU CJ 37 Deteriorating: A housing unit in this category needs more repair than would be 38 provided in the course of regular maintenance, such as repainting. A housing unit is z 39 classified as deteriorating when its deficiencies indicate a lack of proper upkeep. 40 41 Dilapidated(Substandard): A housing unit in this category indicates that the unit can 42 no longer provide safe and adequate shelter or is of inadequate original construction 43 including being constructed below the minimum required elevation by FEMA or the 44 County's Floodplain Regulations. 45 m E 46 Policy 601.3.2 Ordinance No. -2021 Page 17 of 20 File 2020-067 Packet Pg. 3463 S.1.ai I The County Code Compliance Office and Building Department will enforce building 2 code regulations and County ordinances governing the structural condition of the housing 3 stock, to ensure the provision of safe, decent and sanitary housing and stabilization of CL 0. 4 residential neighborhoods. E 5 c CJ 6 Policy 601.3.3 7 Monroe County shall encourage expanded use of U.S. Department of Housing and Urban 8 Development (HUD) rental rehabilitation programs by the Monroe County Housing 9 Authority and State and Federal Floodplain or Hazard Mitigation programs to facilitate 2 10 increased private reinvestment in housing by providing information, technical assistance 11 in applications for federal and State funding, or provide local public funds for 12 rehabilitation purposes. 13 14 Policy 601.3.4 15 Monroe County shall encourage identification and improvement of historically 16 significant housing through the coordination of public information programs defining 0 17 benefits and improvement funding sources. 18 19 Objective 601.4 20 Monroe County shall maintain land development regulations which allow group homes and � 21 foster care facilities licensed or funded by the Florida Department of Health(DOH), as well asCD 22 subsidized housing for elderly residents of the County, to be located in residential areas as z 23 appropriate. 24 CL 25 Policy 601.4.1 26 Monroe County shall maintain land development regulations which permit group homes i 27 and foster care facilities (homes of six or fewer residences which otherwise meet the 28 definition of Community Residential Home pursuant to F.S. § 419.001(1)(a)) licensed or 29 funded by the DOH in all land use categories which permit residential development where 30 consistent with other goals, objectives, and policies of this Comprehensive Plan. 31 2 32 Policy 601.4.2 12 33 The County shall identify and evaluate alternative strategies to expand subsidized housing 0 34 programs for elderly residents of Monroe County through coordination with the Monroe c.I 35 County Housing Authority, and encourage their development by private, community- U1 36 based non-profit, or public entities, as well as public/private partnerships. w c, 37 38 Objective 601.5 39 The County shall provide uniform and equitable treatment for persons and businesses displaced 40 by state and local government programs, consistent with F.S. § 421.55. ®i 41 42 Policy 601.5.1 ' 43 By May 1, 201:2f�24, Monroe County shall adopt uniform relocation standards for 44 displaced households. 45 46 Ordinance No. -2021 Page 18 of 20 File 2020-067 Packet Pg. 3464 S.1.ai I Section 3. Construction and Interpretation. This Ordinance is necessary for the health, 2 safety, and welfare of the residents of and visitors to the County. This Ordinance shall be liberally 3 construed to effect the public purpose(s)hereof. Interpretation of this Ordinance shall be construed CL 0. 4 in favor of the Monroe County Board of County Commissioners ("Monroe County" or the E 5 "County"), and such construction or interpretation shall be entitled to great weight in adversarial 6 administrative proceedings, at trial, in bankruptcy, and on appeal y 7 8 Section 4. Inconsistency, Partial Invalidity, Severability, and Survival of Provisions. 9 If any provision of this Ordinance, or any portion thereof, is held to be invalid or unenforceable in 10 or by any administrative hearing officer or court of competent jurisdiction, the invalidity or 11 unenforceability of such provision, or any portion thereof, shall neither limit nor impair the 12 operation, enforceability, or validity of any other provision of this Ordinance, or any remaining 13 portion(s) thereof. All other provisions of this Ordinance, and remaining portion(s) thereof, shall 14 continue unimpaired in full force and effect. 15 16 Section 5. Repeal of Inconsistent Provisions. All ordinances or parts of ordinance in 17 conflict with this ordinance are hereby repealed to the extent of said conflict. The repeal of an 18 ordinance herein shall not repeal the repealing clause of such ordinance or revive any ordinance 19 which has been repealed thereby. 0 20 21 Section 6. Transmittal. This Ordinance shall be transmitted to the Florida State Land c 22 Planning Agency as required by Florida Statute § 380.05(11) and Florida Statute § 380.0552(9). CD 23 �? 24 Section 7. Filin2. This Ordinance shall be filed in the Office of the Secretary of the State 25 of Florida but shall not become effective until a notice is issued by the State Land Planning Agency 26 or Administration Commission finding the amendment in compliance with Chapter 163, Florida c. 27 Statutes, and after any applicable challenges have been resolved. 28 i 29 Section 8. Inclusion in the Monroe County Comprehensive Plan. The text amendment 30 shall be incorporated in the Monroe County Comprehensive Plan. The numbering of the foregoing 31 amendment may be renumbered to conform to the numbering in the Monroe County 32 Comprehensive Plan. 33 2 34 Section 9. Effective Date. This Ordinance shall become as provided by law and stated 12 35 above. c 36 i CL 37 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, 38 Florida, at a regular public meeting held on the 21st day of April 2021. U 39 40 Mayor Michelle Coldiron 41 Mayor Pro Tem David Rice 42 Commissioner Craig Cates 0i 43 Commissioner Eddie Martinez 44 Commissioner Mike Forster cv 45CD 46 BOARD OF COUNTY COMMISSIONERS 47 OF MONROE COUNTY, FLORIDA 48 Ordinance No. -2021 Page 19 of 20 File 2020-067 Packet Pg. 3465 S.1.ai 1 BY: 2 MAYOR MICHELLE COLDIRON 3 c- 4 (SEAL) 0. c 5 U 6 ATTEST: KEVIN MADOK, CLERK 8 AS DEPUTY CLERK 9 c U 0 4- 0 r9 CL U c 0 CJ CJ r. cv CD cv u Ordinance No. -2021 Page 20 of 20 File 2020-067 Packet Pg. 3466 S.1.b DE�JC Ron DeSantis Dane Eagle CL FLORIDA ECONOMIC OPPORTUNrTY N March 30, 2021 The Honorable Michelle Caldiron Mayor, Monroe County 25 Ships Way Big Pine Key, Florida 33043 Dear Mayor Caldiron: The Department of Economic Opportunity("Department") has completed its review of the proposed comprehensive plan amendment for Monroe County(Amendment No. 21-03ACSC),which a, was received and determined complete on February 3, 2021. We have reviewed the proposed amendment in accordance with the state coordinated review process set forth in Sections 163.3184(2) and (4), Florida Statutes(F.S.),for compliance with Chapter 163, Part II, F.S.The Department does not o identify any objections or comments to the proposed amendment and this letter serves as the CD Objections, Recommendations and Comments Report. Review comments received by the Department W from the appropriate reviewing agencies, if any, are enclosed. The County should act by choosing to adopt,adopt with changes,or not adopt the proposed amendment. For your assistance,we have enclosed the procedures for final adoption and transmittal of cv the comprehensive plan amendment.The second public hearing,which shall be a hearing on whether to adopt one or more comprehensive plan amendments, must be held within 180 days of your receipt of the Department's attached report, or the amendment will be deemed withdrawn unless extended by agreement with notice to the Department and any affected party that provided comment on the amendment pursuant to Section 163.3184(4)(e)1., F.S. i If you have any questions related to this review, please contact Courtney Johnstone, Planning Analysist, by telephone at(850)717-8463 or by email at Courtney.Johnstone@deo.myflorida.com. Sid" rely, - ames D. Stansbury,Chief CL Bureau of Community Planning and Growth J DS/cj 0 Enclosure: Procedures for Adoption Agency Comments T cc: Isabel Cosio Carballo, Executive Director,South Florida Regional Planning Council Christine Hurley,County Administrator, Monroe County Florida Department of Economic Opportunity 1 Galdwe l Building 1 107 E. Madison Street I Tallahassee, Ft..32399 850.245.7105 e a� vivvw.twitfer.com/FLDE0 0 ,wjw.ffacebook.corn/FLOE An equal opportunity employer/program.Auxiliary aids and service are available upon request to individuals with disabilities.All voice telephone numbers on this document may be reached by persons using`T_F Y/TT0 equipment via the Florida Relay Service at'711. Packet Pg. 3467 S.1.b SUBMITTAL OF ADOPTED COMPREHENSIVE PLAN AMENDMENTS 0 FOR STATE COORDINATED REVIEW U N Section 163.3184(4), Florida Statutes NUMBER OF COPIES TO BE SUBMITTED: Please submit three complete copies of all comprehensive plan materials,of which one complete paper copy and two complete electronic copies on CD ROM in Portable Document Format(PDF)to the Department of Economic Opportunity and one copy to each entity below that provided timely comments to the local government:the appropriate Regional Planning Council;Water Management District; Department of Transportation; Department of Environmental Protection; Department of State;the appropriate county(municipal amendments only);the Florida Fish and Wildlife Conservation Commission and the Department of Agriculture and Consumer Services o (county plan amendments only); and the Department of Education (amendments relating to public 2 schools); and for certain local governments,the appropriate military installation and any other local government or governmental agency that has filed a written request. SUBMITTAL LETTER: Please include the following information in the cover letter transmitting the W adopted amendment: Department of Economic Opportunity identification number for adopted amendment package; Summary description of the adoption package, including any amendments proposed but not adopted; Ordinance number and adoption date; Certification that the adopted amendment(s) has been submitted to all parties that provided timely comments to the local government; Name,title, address,telephone, FAX number and e-mail address of local government contact; M CL Letter signed by the chief elected official or the person designated by the local government. c, 0 ADOPTION AMENDMENT PACKAGE: Please include the following information in the amendment package: In the case of text amendments, changes should be shown in strike-through/underline format; In the case of future land use map amendment, an adopted future land use map, in color format, clearly depicting the parcel, its existing future land use designation, and its adopted designation; A copy of any data and analyses the local government deems appropriate. Effective:June 2, 2011(Updated June 2018) Page 1 of 2 Packet Pg. 3468 S.1.b Note: If the local government is relying on previously submitted data and analysis, no additional data FL 0. and analysis is required; 0 Copy of executed ordinance adopting the comprehensive plan amendment(s); N Suggested effective date language for the adoption ordinance for state coordinated review: "The effective date of this plan amendment,if the amendment is not timely challenged, shall be the date the state land planning agency posts a notice of intent determining that this amendment is in compliance. If the amendment is timely challenged, or if the state land planning agency issues a notice of intent determining that this amendment is not in compliance, this amendment shall become effective on the date the state land planning agency or the Administration Commission enters a final order determining this adopted amendment to be in compliance." 0 List of additional changes made in the adopted amendment that the Department of Economic Opportunity did not previously review; 0 List of findings of the local governing body, if any,that were not included in the ordinance and which provided the basis of the adoption or determination not to adopt the proposed amendment; W Statement indicating the relationship of the additional changes not previously reviewed by the U Department of Economic Opportunity to the ORC report from the Department of Economic Opportunity. r9 cv i M CL N 0 Effective:June 2, 2011(Updated tune 2018) Pa-e 2 of 2 Packet Pg. 3469 S.1.b From: Hight.Jason To: Santamaria mayte(olmonroeeounty-fl.gov:DCRe=11aaMQMMments Cc: Cudnella.]osh_Semosror_r,Michelle;Gonseam lon Planaloo Sen�l�ea_ - tJ Subject: [EXTERNAL]-FWC"s Comments on Monroe Coun (041-2021) Date: Wednesday,February 24,20219:54:20 AM r Ms. Santamaria: Florida Fish and Wildlife Conservation Commission (FC)staff reviewed the proposed comprehensive plan amendment in accordance with Chapter 163.3184(3), Florida Statutes. > We have no comments, recommendations, or objections related to listed species and their habitat or other fish and wildlife resources to offer on this amendment. If you have specific technical questions, please contact Michelle Sempsrott at(407)452- 1995 or ichelle.Sampsrott myfwc.com. All other inquiries may be directed to our office by email at Conservation Plan n ing9@rvices MyFC.com. c 2 Sincerely, Jason Hight c Land Use Planning Program Administrator CD Office of Conservation Planning Services W Division of Habitat and Species Conservation 620 South Meridian Street, IVIS 5135 Tallahassee, FL 32399-1600 (850)413-6966 N Monroe County 20-03ACSC 43521_022321 I ro tJ 0 N 0 tJ ro ro Packet Pg. 3470 S.1.b DocuSign Envelope ID:FA1 7A270-218D-4ED1-8679-D7EB46D3E335 FDOT 0. CL Florida Department of Transportation tJ R€1ND SAiNTIS 11000 NW 1.IIth Avenue KEVIN J.`HIBAULT,Poi.. � GOVERNOR Miami,FL 33172-5800 SECRETARY February 16, 2021 Ms. Cheryl Cioffari, AICP Assistant Director of Planning Monroe County Planning and Environmental Resources Department Marathon Government Center c 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 0 Subject: Comments for the Monroe County Comprehensive Plan Amendment FDEO 21-03ACSC Dear Ms. Cioffari: Pursuant to Section 163.3184(3), Florida Statutes (F.S.), in its role as a reviewing agency as identified in Section 163.3184(1)(c), F.S., the Florida Department of Transportation, District Six, reviewed the proposed amendment to the Monroe County's comprehensive plan. The proposed amendment will modify 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. The proposed changes include amending 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, CL 601.5.1 and creating new Policy 101.3.12 to establish the specific Workforce Initiative ca requirements. N The District reviewed the amendment package per Chapter 163 Florida Statutes and found the proposed amendment would not adversely impact transportation resources and facilities of state importance. In addition, the District recommends that U the County continue to identify and address the needs of all modes of travel, including public transportation. The District encourages the County to include pedestrian and bicycle facilities to promote a walkable and connected community consistent with ss. 163.3177, Florida Statutes. www.fdot.gov Packet Pg. 3471 DocuSign Envelope ID:FA17A270-218D-4ED1-8679-D7EB46D3E335 Ms. Cheryl Cioffari, AICP February 16, 2021 CL Page 2 0. 0 Please transmit a copy of the amendment, along with the supporting data and analysis, to the District upon its adoption. Thank you for coordinating on the review of this proposed amendment with FDOT. If you have any questions, please do not hesitate to contact me by email at sh r n.veefong(c)dot sfi t fl,us or at 305-470- 5393. Sincerely, Docuftmd by: CD —r B08CD067559 � Shereenee Fong Transportation Planner 0 4- 0 Cc: Daniel Iglesias, P.E., Florida Department of Transportation, District 6 W Dat Huynh, P.E., Florida Department of Transportation, District 6 Kenneth Jeffries, Florida Department of Transportation, District 6 Ray Eubanks, Department of Economic Opportunity Isabel Cosio Carballo, South Florida Regional Planning Council Kathe Lerch, South Florida Regional Planning Council i M CL C 0 N 0 U Packet Pg. 3472 S.1.b From: =_ To, �Y Cc: Subject: [EXTERNAL]-Monroe County 21-03ACSC Proposed U Date: Friday,March 5,20213:33:22 PM N Attachments: 2 m To: Ray Eubanks,DEO Plan Review Administrator o Re: Monroe County 21-03ACSC—State Coordinated Review of Proposed Comprehensive Plan Amendment The Office of Intergovernmental Programs of the Florida Department of Environmental Protection(Department)has reviewed the above-referenced amendment package under the provisions of Chapter 163, Florida Statutes. The Department conducted a detailed review that focused on potential adverse impacts to important state resources and facilities, specifically: o air and water pollution; wetlands and other surface waters of the state; federal and state-owned 0) lands and interest in lands, including state parks, greenways and trails, conservation easements; solid waste; and water and wastewater treatment. 0 Based on our review of the submitted amendment package,the Department has found no provision that, if adopted, would result in adverse impacts to important state resources subject W to the Department's jurisdiction. c, Please submit all future amendments by email tong . _- � �1� d,�_. If your submittal is too large to send via email or if you need other assistance, contact Lindsay N Weaver at (850) 717-9037. !4 M CL N 0 Packet Pg. 3473 S.1.b ns From: s u€;,%.€.t-y_& To: 711rCrv,i r> ��}€r, a r: .���� , °., = r€ YCui: i r�� I a t�. � ,zl sr P of_r 3c, �n E Izf'Q.�.,,�� r , ? yo g 3� .. �:ri e P,'t1.k_ .. 1.'=-,Jackson' i I I o r 1i b r w:3'1 Subject: [EXTERNAL]-SFRPC Council Meeting February 22,2021 Agenda Item IV.C,Consent Date: Monday,February 22,20214:00:34 PM Attachments: n rqu e 002 r 1. O U ,_. md. ,. ..a...- n3 0 U 0 At the February 22, 2021 Council Meeting,the South Florida Regional Planning Council approved the attached report,finding the proposed and adopted amendments to be o CD generally consistent with the Strategic Regional Policy Plan for South Florida. Should you r9 have any questions, contact Isabel Casio Carballo, Executive Director, at (954) 924-3653 or U r9 Broward County Commission SFRPC Agenda 1V.0#20-06ESR; Ma or CC Steve Geller Deanne D. Von Stetina/Jo Sesodia/Barbara Blake Boy Monroe County Commission SFRPC Agenda 1V.0#21-01,21-02,21-03ACSC; M�)VO i CC _ M CL Michelle Coldiron Emily Schemper/Heidi Siegel/Cheryl Cioffari/ c, 0 yy ..� �./ E qE V Town of Davie SFRPC Agenda 1V.0#20-02ESR; MayorC Judy Paul David Quigley/Dovid Abramson City of Marathon SFRPC Agenda 1V.0#21-01ACSC; \A,1 f cc n3 Packet Pg. 3474 S.1.b Luis Gonzalez George Garrett/Brion Shea) CL N City of Miami Beach SFRPC Agenda IV.C,#20-02,3,4,SESR; r cc Dan Gelber Thomas Mooney - City of Miramar SFRPC Agenda IV.C,#20-02ESR; LAayor cc Wayne M. Messom Eric Silva 0 City of Oakland Park SFRPC Agenda IV.0#20-02ESR; a4Qj--. CC o lane F. Bolin Jennifer Frastai/Peter Schwarz/Richard Buckeye Alexander Dombach CD P' N City of Parkland SFRPC Agenda IV.C,#20-02ESR; Mayor CC U Rich Walker Michele Mellgren/Nancy Morando P. 0 Village of Sea Ranch Lakes SFRPC Agenda IV.C,#20-01ER; E Jeffrey Nelson Starr Paton E 0 N City of Sweetwater SFRPC Agenda IV.0#20-01ESR; Ul € r Orlando Lopez Manny Salazar/Ralph Rosado/ �o City of Wilton Manors SFRPC Agenda IV.C,#20-01ESR; fv rCY, U) Scott Newton Roberta Moore, Director U Packet Pg. 3475 S.1.b N Ookwood :f.,.0 rC_✓'I.d, ;,4rC. t� !,. j,'f 1'v S,"`J.f.1, 330,.0 954-924-36-53 - M Check us out: �et I:' : x : FloridamISFRPC S South Regional Planning Council Confidpntl ffty Notice.-Ply;ase note that Hr dda has a broad public records law and all correspondence sent t me via email may be subJect to&cfosure, sm 0 4- sm 0 r9 CJ CJ r9 r N CJ I M CL tJ 0 N 0 tJ Packet Pg. 3476 S.1.b 0 N MEMORANDUM AGENDA ITEM#IV.0 DATE: FEBRUARY 22,2021 TO: COUNCIL MEMBERS FROM: STAFF SUBJECT: LOCAL GOVERNMENT COMPREHENSIVE PLAN PROPOSED AND ADOPTED AMENDMENT 2 CONSENT AGENDA 0 Pursuant to the 1974 Interlocal Agreement creating the South Florida Regional Planning Council(Council), the Council is directed by its member counties to"assure the orderly,economic,and balanced growth and development of the Region, consistent with the protection of natural resources and environment of the Region and to protect the health,safety,welfare and quality of life of the residents of the Region." M In fulfillment of the Interlocal Agreement directive and its duties under State law, the Council reviews local government Comprehensive Plan amendments for consistency with the Strategic Regional Policy Plan for South Florida(SRPP). Pursuant to Section 163.3184,Florida Statues as presently in effect,Council review of comprehensive plan amendments is limited to 1) adverse effects on regional resources and facilities identified in the SRPP and 2) extra-jurisdictional impacts that would be inconsistent with the comprehensive plan of any affected local government within the Region. The Council's review of amendments is conducted in two stages: (1) proposed or transmittal and (2) adoption. Council staff ¢i reviews the contents of the amendment package once the Department of Economic Opportunity certifies its completeness. A written report of Council's evaluation pursuant to Section 163.3184, Florida Statutes, is to be provided to the local government and the State Land Planning Agency within 30 calendar days of receipt of the CL amendment. 0 N Recommendation Find the proposed and adopted plan amendments from the local governments listed in the tables below o generally consistent with the Strategic Regional Policy Plan for South Florida. c, Approve this report for transmittal to the local governments with a copy to the State Land Planning Agency. am South Florida Regional Planning Council 1 Oakwood Boulevard,Suite 25o,Hollywood, Florida 33020 954-924-3653 phone,954-924-3654 FAX Packet Pg. 3477 S.1.b PROPOSED AMENDMENTS 0 U Local Government Local Government N and Plan Proposed Adopted Council Review Transmittal or Amendment Number Date Adoption Public Hearing and Meeting Monroe County 21-01ACSC (received 01-28-21) N/A 02-22-21 01-20-21 1. The proposed amendments to Monroe County's Comprehensive Plan are text amendments to the Comprehensive Plan's Glossary and to the Future Land Use, Housing, and Ports, and Aviation and Related Facilities Element, including modifying the definitions of accessory use or accessory structure, household, o transient unit and dwelling unit; deleting the definition of family; and inserting definitions of kitchen, lock-out unit and wet bar. 2.The amendments affect Monroe County. 3.The amendments do not create any adverse impacts to state or regional resources/facilities. CD r9 U mm -- - -- _ - Monroe County 21-02ACSC (received 01-28-21) J N/A j 02-22-21 01-20-21 E .. ..._....... ... ...__ _. ......- U 1.The proposed amendment to Monroe County's Comprehensive Plan modifies provisions related to wetlands, I open spaces, and mangroves to allow airport improvements,which may impact wetland areas when there is no other viable alternative available, at the Key West International Airport and the Florida Keys Marathon International Airport. 2. The amendment affects the Key West International Airport and the Florida Keys Marathon International ¢� Airport in Monroe County. 3.The amendment does not create any adverse impact to state or regional resources/facilities. CL Monroe County 0 21-03ACSC N (received 01-28-21) N/A 02-22-21 01-20-21 i _._..... F.. .._. .... __ __._ .. :. . 1 The proposed amendment to Monroe County's Comprehensive Plan modifies 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,and establishes specific requirements. 2.This amendment affects Monroe County. [ 3.This amendment does not create any adverse impact to state or regional resources/facilities. 0 2 Packet Pg. 3478 S.1.b CL 0. Local Government Local Government I and Plan Proposed Adopted Council Review Transmittal or Amendment Number Date Adoption Public N Hearing and Meeting City of Marathon 21-01ACSC ,/ N/A 02-22-21 01/12/21 (received 02-03-21) 1. The proposed amendment revises the City of Marathon's Comprehensive Plan by amending the land use 9 Ch designation of two properties on the Future Land Use Map (FLUM) from Residential High (RH) to Mixed Use 0 Commercial (MU-C) with the intent of allowing the expansion of an adjacent marine aquaculture/research facility. 0) 2.This amendment affects two properties located at 163 63`d Street (Ocean) in the City of Marathon. le 3.This amendment does not create any adverse impact to state or regional resources/facilities. City of Wilton Manors 21-01ESR N/A 02-22-21 12-08-20 (received 01-05-21) 1. The proposed amendment revises the City of Wilton Manors' Comprehensive Plan by modifying the density and intensity of the Transit-Oriented Corridor (TOC) land use designation, with the intent to facilitate redevelopment within the City's mixed-use TOC designated area.The amendment would allow a twenty percent increase in units within the TOC, in accordance with Broward Next. 2.This amendment affects the City of Wilton Manors. 3.This amendment does not create any adverse impact to state or regional resources/facilities. ¢i M CL N 0 3 Packet Pg. 3479 S.1.b ADOPTED AMENDMENTS CJ Local Government Local Government and Plan Proposed Adapted Council Review Transmittal or Amendment Date Adoption Public Number Hearing and Meeting C � Broward County > 20-06ESR 1 (received 01-28-21) N/A ,/ 02 22-21 01-26-21 ._ _......._..... _ 1. The proposed amendments revise Broward County's Land Use Plan (BCLUP) by amending the Natural Resource Map Series(PCNRM 20-1)and reflecting amendments of the cities of Pembroke Pines and Tamarac o to the future land use elements of their respective comprehensive plan as follows: c, 1.1. The Natural Resource Map series is updated every other year and the proposed revisions are based on 0 actions that the Broward County Environmental Protection and Growth Management Department (EPGMD) took from January 1, 2018 through December 31, 2019. The actions included observing or o delineating wetlands on a parcel and issuing an Environmental Resource License which formally CD identifies wetlands or removing wetlands that are no longer environmentally significant. The actions W resulted in the addition of 85.25 acres and the removal of 9.21 acres. i ca 1.2. The amendment to the BCLUP—City of Pembroke Pines—amends the land use designation of 49 acres of Commerce and 509.2 acres of Irregular Residential to 30.6 acres of Commerce and 527.6 acres of irregular Residential, located on the east side of SW 172"d Avenue between Pembroke Road and Pines Boulevard. `V 1.3. The amendment to the BCLUP —City of Tamarac—amends the land use designation of 168.7 acres of Commercial Recreation to Low(5) Residential. 2.The amendments affect Broward County. 3.The amendments do not create any adverse impacts to state or regional resources/facilities. 4.The Council previously reviewed this amendment when proposed. i Town of Davie 20-02ESR °3 (received 01-26-21) N/A J 02-22-21 01-06-21 CL ca 1. The adopted amendment to the Town of Davie's Comprehensive Plan updates the Town's Water Supply Facilities Work Plan. 2.The amendment affects the incorporated area of the Town of Davie. 3.The amendments do not create any adverse impact to state or regional resources/facilities. 4.At the proposed stage of this amendment,the South Florida Water Management District provided comments o that were addressed prior to adoption. City of Miami Beach 20-02ESR (received 01-20-21) N/A ,/ 02-22-21 12-09-20 4 Packet Pg. 3480 S.1.b CL Local Government Local Government and Plan Proposed Adopted Council Review Transmittal or Amendment Date Adoption Public Number Hearing and Meeting 1. The adopted amendment to the City of Miami Beach's Comprehensive Plan establishes the Wolfsonian Arts j District within the Medium Intensity Commercial(CD-2) land use category and increases the maximum floor area ratio from what is currently allowed.The intent of the amendment is to allow for the expansion of the Wolfsonian Art Museum. 2.This amendment affects the area within the Wolfsonian Arts District in the City of Miami Beach. 3.This amendment does not create any adverse impact to state or regional resources/facilities. 4.The Council did not review this amendment when proposed. Vi 0 .. _City of Miami Beach �-- � � ----LL�_.- � 20-03ESR (received 01-20-21) N/A �/ 02-22-21 10-14-20 0 1. The adopted amendment to the City of Miami Beach's Comprehensive Plan allows for development of hotels ( W along Lincoln Lane South, an alley on the south side of the Lincoln Road Mall, authorizing hotel uses within the Low Density Multi Family Residential(RM-1)future land use category within a small area. 2. This amendment affects the area within the Flamingo Park Historic District that abuts Lincoln Lane South "9 between Drexel Avenue and Lenox Avenue in the City of Miami Beach. cv 3. This amendment does not create any adverse impact to state or regional resources/facilities. 4.The Council previously reviewed the amendment when proposed. U City of Miami Beach 20-04ESR i (received 01-20-21) N/A 02-22-21 11-18-20 ...... -...... s ._. ..._... 1. The adopted amendment to the City of Miami Beach's Comprehensive Plan allows development of hotels n the Low-Density Multi-Family Residential(RM-1) land use category at designated historic sites in North Beach. 2. This amendment affects sites north of Normandy Drive in the City of Miami Beach, which are designated CL historic,and lots that are greater than 30,000 square feet. 3.This amendment does not create any adverse impact to state or regional resources/facilities. o 4.The Council previously reviewed these amendments when proposed. o City of Miami Beach U 20-05ESR (received 01-20-21) N/A 02-22-21 11-18-20 1.The adopted amendment to the City of Miami Beach's Comprehensive Plan provides policy guidance,and establishes a neighborhoods map,with the intent of retaining the unique character of the Sunset Harbor U) neighborhood.The amendment would support the neighborhood vision of a small town, mixed-use community, 2.This amendment affects the Sunset Harbor neighborhood in the City of Miami Beach, located north of Dade m Boulevard,west of Alton Road,approximately encompassing the blocks of 18'h through 20'"Street. 5 Packet Pg. 3481 S.1.b Local Government Local Government and Plan Proposed Adopted Council Review Transmittal or Amendment Date Adoption Public N Number Hearing and Meeting 3.This amendment does not create any adverse impact to state or regional resources/facilities. 4.The Council previously reviewed this amendment when proposed. City of Miramar _. 20-02ESR (received 02-03-21) N/A 02-22-21 01-27-21 1. The adopted amendment restates and amends the school-related provisions of the City of Miramar's . 2 Comprehensive Plan to reflect the new districtwide level of service(LOS)standards for bounded public schools in the City. 2.This amendment affects the City of Miramar. 3.This amendment does not create any adverse impact to state or regional resources/facilities. 4.The Council previously reviewed this amendment when proposed. City of Oakland Park 20-02ESR (received 01-14-21) N/A 02-22-21 12-16-20 U 1. The adopted amendment to the City of Oakland Park's Comprehensive Plan incorporates the City's 10-Year Water Supply Facilities Work Plan and related amendments. 2.This amendment affects the City of Oakland Park. 3.This amendment does not create any adverse impact to state or regional resources/facilities. 4.The Council previously reviewed this amendment when proposed. City of Parkland 20-02ESR CL (received 01-05-21) N/A 02-22-21 12-16-20 1. The adopted amendments provide updates to the Future Land Use Element, Capital Improvement Element, Intergovernmental Coordination Element,and Transportation Element of the City of Parkland's Comprehensive Plan. In addition, the City adds a new element, titled Public Schools Facilities Element. The updates are to maintain a o consistency with the Broward County Comprehensive Plan Transportation Element to support complete streets,and to provide an annual update to the five-year Capital Improvement Plan (CIP). The Public Schools Facilities Element establishes compliance with the provisions of the third amended and restated Interlocal Agreement (TRILA) which requires parties to the agreement to adopt state provisions for school concurrency, level of service measurement, approval processes,student generation rates,mitigation approval,and the School Board's Capital Plan. 2.The amendments affect the incorporated area of the City of Parkland. 3.The amendments do not create any adverse impact to state or regional resources/facilities. 4 The Council previously reviewed this amendment when proposed. 6 Packet Pg. 3482 S.1.b I CL Local Government Local Government and Plan Proposed Adopted Council Review Transmittal or Amendment Date Adoption Public Number Hearing and Meeting Village of ' Sea Ranch Lakes 20-01ER N/A ,J 02-22-21 01-13-21 (received 01-29-21) a 1. The adopted amendment updates the Coastal Management Element of the Village of Sea Ranch Lakes' ` Comprehensive Plan and adopt the Evaluation and Appraisal Report (EAR) based amendments to be consistent with state, regional,and local regulations. o 2.This amendment affects the incorporated area of the Village of Sea Ranch Lakes. 3.This amendment does not create any adverse impact to state or regional resources/facilities. 4.The Council previously reviewed this amendment when proposed. 0 i City of Sweetwater 20-01ESR ��- (received 01-05-21) N/A 02-22-21 12-07-20 1.The adopted amendment to the Future Land Use Element of the City of Sweetwater's Comprehensive Master Plan addresses elderly and workforce housing issues in the City. The amendment provides specific density incentives for projects encompassing 100% elderly or workforce housing units, addressing the needs of the elderly,and workforce populations. 2.This amendment affects the incorporated area within the City of Sweetwater. 3.This amendment does not create any adverse impact to state or regional resources/facilities. 4.The Council previously reviewed this amendment when proposed. i M CL N 0 7 Packet Pg. 3483 S.1.c Jf �\ s_ \ 2 3 u 4 5 MEMORANDUM 6 MONROE COUNTY PLANNING&ENVIRONMENTAL RESOURCES DEPARTMENT 7 8 To: Monroe County Board of County Commissioners 9 10 Through: Emily Schemper, AICP, CFM, Senior Director of Planning & Environmental Resources 11 � 12 From: Mayte Santamaria, Senior Planning Policy Advisor 13 0 14 Date: March 30, 2021 15 2 16 Subject: An ordinance by Monroe County Board of County Commissioners adopting amendments 4- 17 to the Monroe County 2030 Comprehensive Plan amending the Future Land Use Element 0 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 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, CL 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 e( 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 a®ai 27 Meeting: April 21, 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 0 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 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, E 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 hI 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 N 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 E BOCC Staff Report Page 1 of 40 File 42020-067 Packet Pg. 3484 S.1.c I (BOCC wanted staff to develop a menu of options). Additionally, the BOCC directed staff to start the 0. 2 process to accept the 300 workforce housing units. 0 3 4 On July 15, 2020, during a discussion item on potentially shifting market rate allocations to the .2 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 o 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 � 12 II. BACKGROUND INFORMATION 13 14 Section 380.0552,F.S.,the Florida Keys Area protection and designation as area of critical state concern, 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 c 18 disaster by maintaining a hurricane evacuation clearance time for permanent residents of no more than CD 19 24 hours. The hurricane evacuation clearance time shall be determined by a hurricane evacuation study C 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.]. 22CL 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). t�l 25 The purpose of this Amendment is to implement goals, cabctiv and policies of the Florida Kegs Comprehensive Plan related to :4 rcitectl4h of 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 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 protecting CD the health and safety of its citizens, Monroe County must regulate the rate cy of population growth commensurate with planned increases in evacuation CL capacity to prevent further unacceptable increases in hurricane evacuation CJ clearance time. Regulation of the rate of growth will also help to prevent further deterioration of public facility service levels, irreversible envi- 26 0. ronmental degradation, and potential land use conflicts. W 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 30 in the event of a hurricane evacuation and to protect the significant natural resources of Monroe County, 9 31 as required by the State of Florida. The County originally reduced the annual permitting rate from N 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. 3485 S.1.c I In 2012, the County entered into a Memorandum of Understanding (MOU) with the Department of 0. 2 Economic Opportunity (DEO),the Division of Emergency Management(DEM), Marathon, Islamorada, 0 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 Q) 7 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, 0 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 0. le 13 Cabinet, sitting as the State Administration Commission, approved the recommendation to allocate 10 14 years' worth of growth to the Florida Keys. ?: 15 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 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); CL 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 108-120. Further, the I Fork 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 Local Governments based upon the Local Governments' ratio of vacant land;and �I 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 Q) 18 0 le 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 CD 22 modeling task that found with 10 years' worth of building permits, the Florida Keys would be at a 24 e.l 23 hour evacuation clearance time (Phase 2 of the 48-hr phased/staged evacuation). t�l 24 0 c 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). 4-- 27 The proposed initiative would allow 1,300 additional Rate of Growth Ordinance (ROGO) allocations v) 28 throughout the Florida Keys (ROGOs or Building Permit Allocation Systems) for rental workforce NI 29 housing, with a condition that the rental occupants evacuate in the early phase (48-hour window) of a 9 30 hurricane evacuation. Any development receiving the units would be required to sign a rental 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 BOCC Staff Report Page 3 of 40 File 42020-067 Packet Pg. 3486 S.1.c I innovative Keys Workforce Housing Initiative will require new construction that participates to commit 0. 2 to evacuating renters in the 48-hour window of evacuation." 0 3 4 On June 13, 2018, the Florida Administration Commission approved the Workforce Housing Initiative. .2 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 o 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 12 of the staged/phased evacuation procedures include: 13 1. Approximately 48 hours in advance of tropical storm winds, a mandatory evacuation of non-residents, 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 0 17 limited. 0 18 2. Approximately 36 hours in advance of tropical storm winds, a mandatory evacuation of mobile home CD 19 residents, special needs residents, and hospital and nursing home patients from the Keys shall be 20 initiated. 21 ,77,3 "� " 77 Y. CL LL 04 R �fftS KC nH4 N&�C5 Ti "i , s r ` 47 L. - `! PERIOD THERE IV, _ OF ®OLiTOIAL ACi OTY r , ' 6 5 HOM PROPOSAL ALLOW 001901001JES M TO DIU DEED-RESTFAME MBE EO U O O M TOBEEVAMTHATLEASTO 22 C — c 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 v)l 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 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 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. 3487 S.1.c I recommended order on the challenges to the municipality Comprehensive Plan amendments to accept 0. 2 the 300 Workforce Housing units.] 0 3 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 o 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 12 2026; 13 2. Accept the 300 early evacuation affordable ROGOs and extend ROGO allocations until 2026; and 14 3. Accept the 300 early evacuation affordable ROGOs and do not extend ROGO beyond 2023. 15 The BOCC discussed and did not agree to accept the 300 units offered on May 2, 2018, by Governor 2 16 Rick Scott and DEO for the Keys Workforce Housing Initiative. 17 0 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 z 21 On January 22, 2020, the BOCC adopted Ord. 006-2020 to extend the remaining market rate ROGOs 0 22 out for an additional three (3)years from 2023 to 2026 within the Land Development Code. c. 0 23 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 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 2 32 Growth Ordinance (ROGO) units through 2026 to the Affordable Housing allocation pool and/or 2) 4- 33 accept the 300 Workforce Housing units offered by the Department of Economic Opportunity (DEO) 0 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. 37 38 On July 15, 2020, during a discussion item on potentially shifting market rate allocations to the 0 39 affordable housing pool (agenda item I5),the BOCC provided further direction to staff on accepting the 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 W 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 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. 3488 S.1.c I to the County in exchange for workforce housing early evacuation unit allocations should be banked to 0. 2 resolve takings cases. The County has been evaluating the potential of takings for many years, but in 0 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 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). a 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 14 Initiative (exhibit 4). 15 2 16 DEO remanded the case to DOAH on August 21, 2020, "for the limited purposes of issuing Findings of 4- 17 Fact and Conclusions of Law on the issue of whether the plan amendments establish meaningful and 0 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 20 300 ROGOs under the Workforce Housing Initiative (included within exhibit 4) Currently, it is z 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 CL 23 cities are attached to this report as exhibits 5, 6 and 7. 24 i 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 aai 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 29 secured a temporary stay of the agency's final order. 30 31 32 2 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 CD 36CL 37 • Monroe County Workforce Housing Assessment Report-April 2015 38 http://www.monroecounty-fl. ov/DocumentCenter/View/9474/2015-MC-Workforce-Housing- 39 Stakeholder-Assessment?bidld= 40 The v7orkforce 11ouslgg affordabilit,-crisis 111 the Florldn Kes-s identified by the 2\1oraroe Cojants- COmii1iEsloil 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 16,549 of Mc-3nioe Co uiit-�- households P av more than 30"c, of IL1come for housing tz-llile CD state that figure is 43`0. Moire than lialf of'NIo foe Coivaty renters are cost burdened �,a7�:.1 of 14,(:02' CD ' 04 41 while about 4-)',b of'�Ionroe CoulitG-homecjwlier tare cost l interred i8,499 of the 15,9'61,. CD 04 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. 3489 S.1.c 1 a. E 0-30'%AMI 30.01-60%ANTI 60.01-80%AMI U Cost Cost Cost L)® All Burdened All Burdened All Burdened N Renters in (>40°0) Renters in (>40°5) Renters in (A40°5) Income Renters in %Cost Income Renters in %Cost Income Renters in /,o Cost Category Category Burdened Category Category Burdened Category Category Burdened Hardee 388 2,57 66940 723 457 63940 372, X X) Hendry 609 394 65940 887 512 58940 627 (X) (X) t8 Holmes 291 195 67940 3,87 2,18 56940 206 59 29940 U Jackson 1,32,0 614 47940 1,324 489 37940 612, X X) Jefferson 350 163 47940 351 130 37940 162, X X) 0) Lafayette 171 72 42940 143 53 379%0 64 (X) (X) Levy 651 375 58940 814 376 46940 381 X X) Liberty 176 82 47940 176 65 37940 81 X X) CD Madison 504 2,13 42940 422, 157 37940 187 (X) (X) Monroe 2,697 1„667 6294e 3,214 2„573 80°4e 1,714 1,058 62940 Nassau 1,416 731 52940 2,,131 884 41940 11198 X X) c 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 U Suwannee 1,22,5 517 42940 1,024 380 37940 455 (X) (X) 0 U Taylor 516 2,18 42940 431 160 37940 192, X X) Union 210 121 58940 262, 121 46940 123 U Wakulla 600 2,79 47940 601 222 37940 278 X X) Walton 1,396 936 67940 1,858 1047 56940 990 2,84 29940 CD Washington 349 2,34 67940 465 2,62 56940 248 71 2994o cy Small Total 20,955 111624 551/10 24,952 121745 311/10 12,900 31008 23°'a W State Total 496$56 345,482 20°'a 661 866 450,123 68'1/10 370,317 120.701 33°'a 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 CL values will be higher than the sum,of the numeric values that do appear. 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 3 80.01-1201 AMI 120.01-1401 AMI Cost U Burdened > All Renters in Cost Burdened All Renters in (740/6) Income (740°)Renters %Cost Income Renters in /6 Cost Category in Category Burdened Category Category Burdened Jefferson 237 (X) (X) 45 (X) (X) U Lafayette 100 X) X) X) X) 2 Levy 731 X) X) 2,12 X) X) Liberty 119 (X) (X) 23 (X) (X) Madison 294 (X) (X) (X) (X) U Monroe 2,493 748 300,4e 870 103 120,4e Nassau 1,189 X) X) X) X) Okeechobee 769 X) X) X) X) I Putnam 1,260 (X) (X) 403 (X) (X) CL Suwannee 713 X) X) X) X) Taylor 300 X) X) X) X) Union 235 (X) (X) 68 (X) (X) U 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/o 5.455 [Xl (X) State Total 942,154 60,762 11°'0 128,747 71647 4/o Notes:(K)indicates results that are suppresser)because estimates are not statisucally 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 column and rows with missing 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 6 U BOCC Staff Report Page 7 of 40 File 42020-067 Packet Pg. 3490 S.1.c 1 • 2018 ALICE Study in Florida by the United Way: 0. 2 https://www.uwof.org/sites/uwof org/files/2018%20FL%20ALICE%20REPORT%20AND%2000%20 U 3 PAGES.pdf ALI'll IN WOW OE UOUNTY Rfj 2015 Point-In-Time Data Population 79,077 - Number of Households 30,318 � Median Household Income: $65,717 (state average: $50,360) > Unemployment Pate: 3..3% {state average: 6.0%) ALICE Households: 30%(state average:32`) - Households in Poverty: 12%(state average: 1'4%) 4 5 6 The Florida Keys face the quadruple impact of high land values, land limited by geographic and 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. 2 9 - CD CD $2,.4 Billion Four out of every 10 M o,n,ro,e County warkers owes his/herjob to tourism W 2018 Monroe GOUnty TcaLWISn,Spending activity. Tourism was responsible f6r 4 4% of all Monroe County jobs. CL The eyerage woge of both full and parttime workers supportedby 0 Jobs'E€nployrr€ent. in Monroe COLMIty tourism was $35,448 in 20,18. $1.8 Billion I tJ jobs supported directily 4y tourism were responsible r 3 % of all Total Economic impact Monroe Countyrivote s for job . 10 (Direct Indirect,&lnduced) UI 11 2020 Monroe County Tourist Development Council 12 13 The housing affordability problem of the Florida Keys has widespread economic impacts, including a M 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, 0 16 tourism and health care, find it increasingly difficult to attract and maintain workers. Affordable housing 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 housingCD 19 from low income earning workers,while the limited land area and linear geography of the Keys severely CLI 20 limit the potential supply and locations of housing. Furthermore, unlike other areas, working families t�l 21 cannot find affordable housing nearby and commute. As a result, a severe imbalance exists between 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 26 supply and increases affordable housing demand; 27 • high construction costs due to transportation costs of goods, limited labor market, and caprock N 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. 3491 S.1.c I • limited permit allocations due to hurricane evacuation standards, habitat protection and water 0. 2 quality objectives; and c 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 o 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 KEYLARGO 2581 3992 326 75 U) VILLAGE OF15 ORADA 0 468 427 47 FIESTA KEY 0 0 2S7 CRAIG KEY 0 0 0 U CITY CIF LAY ON 4 160 1s LONG KEY 304 1+4 0 t0f,1 4 gEY 0 13 4 DUCK KEY 292 tG2 83 7 CITY Of:KEY COLONY BEACH 0 1462 E88 CD CD }},ti tilttislti 0 $29 1A02 in M QH IO KEY 0 0 0 397 `. ®AREA HONDA KEY 6 6 6 0 BIG PINE KEY '264 1,519 663 290 LITTLE TORCR KEY 389 go 25 CL M MULE TORCH KEY 3 0 12 0 BIG TORCH KEY 11 4 12 1 RAMROD KEY 31 20 493 13 � SUMMER LAND KEY 1 7QG Z10 10 CJ CUDJOE KEY 1-34 914 624 52 SUGARLOAF KEY M 207 101 UPPER SUGARLOAF KEY 175 0 0 EI �I LOWER SUGARLOAF KEY 6 161 110 0 M SADDLECIUNCH KEYS 82, 0 0 0 > 0) SHARK KEY 0 : 39 ; 0 0 046C:CIPPI TKEY 122 538 63 +4 GEIGER KEY 41 252 0 7 0) ROCKLAN D KEY 1 fib 31 0 0) ISEY HAVEN R � 1 0 2 STOCK ISLAND WS 5,65 i 22 1s 0 11E255 282 39 11 12 CD M 13 CL 14 i 15 DEO and DEM will run an evacuation model after the completion of the 2020 Census, using updated 0 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 4-- 18 Layton. This will be the earliest timeframe that the County and other jurisdictions will be able to evaluate v) 19 the results based on any population changes, occupancy changes and other factors in the inputs and N-I 20 assumptions utilized within the hurricane modeling. 21 22 N 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. 3492 S.1.c I Order Number 20-52, declaring a State of Emergency for the Stale of Florida related to COVID-19/novel 0. 2 Coronavirus. The Monroe County Mayor declared a State of Local Emergency on March 15, 2020, due 0 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 o 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 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, 14 resources, testing, and facilities. 15 2 16 The economic impacts of COVID-19/novel Coronavirus have been significant globally, to Florida and 4- 17 specifically to Monroe County. The economic impacts are anticipated to increase the demand for the 0 18 availability of housing opportunities for lower income groups. Initially, Monroe County had the 2na 19 highest unemployment rate at 17.5 percent (April 2020), but by December 2020, Monroe County's 20 economic outlook rebounded, and it now has the state's 3rd lowest unemployment rate at 3.8 percent. 21 0 22 See excerpt from the DEO Bureau of Workforce Statistics and Economic Research April Employment c. 23 Figures: 24 U STATE 4F FLORIDA U LOCAL AREA UNEMPLOYMENT STATISTICS BY COUNTY (NC1T SEASONALLY ADJUSTED) I APRIL 2020 MARCH 2O20 APRIL 2019 LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLOY- UNEMPLOYMENT COUNTY FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE Mana&ee County 161,474 13%654 21,82.E 135% 182,283 174,524 7,759 4.3% 178,942 173,808 5,134 2.9% Marron County [2:9,422 113,768 16,654 12.1!a t38,960 131,682 7,278 5.210 635,997 131,083 4,914 36% Martin Count;: 68784 60,572 8,2t2 11.9% 75,312 72,151 3,11 42% 73,573 71,430 2,143 2.9% � Miami-DadeCni 1,2t5,918 1871,1324 144,294 11.9!'. 1317241 1,267181 5d,060 3.1 t383,594 1,349404 34,t90 2.510. 2 25 Monroe Count;, 46316 38,609 8,207 17.5% 4B,214 46,B81 1,333 2.&% 46,585 45,580 9105 1.9% 26 27 See excerpt from the DEO Bureau of Workforce Statistics and Economic Research Il/[cly Employment 28 Figures: 29 STATE OF FLORIDA LOCAL AREA UNEMPLOYMENT STATISTICS BY COUNTY (NOT SEASONALLY ADJUSTED) 0 !� MAY 2020 APRIL 2020 MAY 2019 LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLOY UNEMPLOYMENT COUNTY FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE IM Merton County 132646 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 7,999 114% 68.543 60432 8,111 118% 74,285 72,052 2,233 30% hl Mfiaml-DadeCounry 1,212,569 1,075,744 136,825 113% 1,213,833 1070,388 143,445 118% 1374,809 1,341,271 33,538 24/ 30 Monroe County 49,703 40,913 8,790 177% 4B,467 39,906 8,561 1771 46,864 45,935 929 20% 31 32 See excerpt from the DEO Bureau of Workforce Statistics and Economic Research ,Tune Employment 33 Figures: BOCC Staff Report Page 10 of 40 File 42020-067 Packet Pg. 3493 S.1.c STATE OF FLORIDA 1 LOCAL AREA UNEMPLOYMENT STATISTICS BY COUNTY (NOT SEASONALLY ADJUSTED( U JUN'...E 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 Manion County 133,949 122.,557 11392. 8.5% 132.,803 113,618 14,185 10.7% 137,956 132,220 5,736 42% Martin County 78,94E 65,243 5,793 8.0% 69,955 62,659 7,296 10.4% 74.,044 71.,503 2,541 3.4% rVrani-Dade Count: 1,269,957 1,124,302 145,655 iC.S! 1,220,976 1974,907 146,069 1'2.0% 1,369,579 1335,085 34,494 2.5% 1 Monroe Count; 47,377 42,674 4.703 9.9% 48,916 40,866 8,050 16.5% 46,480 45,460 1,020 22% 2 3 See excerpt from the DEO Bureau of Workforce Statistics and Economic Research Alig ist Employment 4 Figures: STATE OF FLORIDA � LOCAL AREA UNEMPLOYMENT STATISTICS BY COUNTY CD (NOT SEASONALLY ADJUSTED) AUGUST 2020 JULY 2020 AUGUST 2019 0 LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLOY- UNEMPLOYMENT LABOR. EMPLOY- UNEMPLOYMENT COUNTY FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE U Mana#ee County 173 897 182,895 10,802 6211, 172 752 156,556 16,I H 4 41, 17B,333 172,279 6,054 3 4% Marion CoL+nty 139 293 130,482 8,781 6.3% 137,501 124,693 12,808 9 3% 137,952 132,347 .5 605 4-1% 4- mariin County 72,127 G8,150 3,977 5.5% 70,579 64,446 6,133 8 7% 74,133 71,626 2,507 3 4% L" 0 Miami-Dade County 1,351,f3'VD 1,242,54' 109,265 8 1 l 'U3`t,-V53 1;145,387 193,7E 14.5% 1,377,292 -V,34-V,9 9 31033 2.6% 5 Monroe County 48,715 45,408 3,307 6 8`. 48,117 43,283 4,834 10.0% 4C,,83 45,583 1,000 2.1'. 6 W 7 See excerpt from the DEO Bureau of Workforce Statistics and Economic Research Decelnher 8 Employment Figures. Note, by December 2020, Monroe County had the state's 3rd lowest CL 9 unemployment rate at 3.8 percent: STATE OF FLORIDA, LOCAL AREA LINEMPLOvKIENT STATSTICS EY COUNTY � yNOT SEASONALLY ADJUSTED! DECEMBER 20€20 NOVEMBER 2020 DECEMBER 2019 LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLQ - UNEMPLOYMENT LABOR EMPL°OI- L+NEMPLOIMENT 0 COUNT, FORCE MERIT LEVEL. RATE FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE � M;amn County 142.,294 134,309 7,'9„ 9-.rP1.4 1,.41;752 133,640 5,104 137,663 133,193 4,470 3.2% Mar€sn C,ou...-ty i3.700 70.708 2;�94 4.117a 72.851 8.9.75.2 ',099 4.2:17:. 74..'s93 72437 1'1956 2.6% Mianv:-Dade C,ourtrj 1,312409 1,21:6.08 ,22 7 3". ',329.607 ',223.9.3+2 105,574 7.91;0 522.870 s,3..79.836 22,034 1.6.% � 10 Monaae Country 49,,581, 47..709 ,,872 3.8% 48,.931, 40,.801 2,070 4.2'o 47.H7 47.D29 F_ie'.8 1..- 11 � 12 1? 13 Staff is proposing a corresponding amendment to the Land Development Code. The subject of this staff 4- 14 report is the proposed amendment to the Comprehensive Plan. 0 15 16 17 Community Meeting and Public Participation c- 18 In accordance with LDC Section 102-159(b)(3), a Community Meeting was held on July 28, 2020 to 19 provide for public input. There were 11 attendees, inclusive of four County staff members. Seven 20 members of the public provided comments and, in general, the comments expressed opposition and 21 concern for the proposed amendment, as summarized below: 22 • Not in support of accepting the 300 units hI 23 • Concern with public safety related to hurricane evacuation 24 • Undermines current restrictions on growth N 25 • Accepting additional units nullifies the whole growth management system 26 • Concern with rapid intensification of storms; we do not have anything to deal with a short notice 27 hurricane E 28 • Not supported by any data or studies and undermines ROGO system for the County BOCC Staff Report Page 11 of 40 File 42020-067 Packet Pg. 3494 S.1.c I • Bad policy and contravenes state statutes to `award' 1,300 ROGOs for use by permanent 0. 2 residents (workforce) by estimating capacity in tourist phase of evacuation and assuming the 0 3 workforce can and will evacuate early and often 4 • Legal challenge to city amendments that have accepted units is still ongoing 5 • County will end up in a lawsuit too 6 • Creating this new pool will create more takings cases 7 • Define onsite property manager and true emergency workers; ensure accessibility to employment 8 centers; and ensure banked allocations will be used for takings cases only 9 • Concern about the County taking more units from the municipalities 10 11 Development Review Committee and Public Input �s 12 The Development Review Committee considered the proposed amendment at a regular meeting on 13 August 25, 2020 and received public input, as summarized below: 0 14 • Not in support of accepting the 300 units 15 • Requesting county conduct additional analysis of a successful takings claim and an analysis of 0 16 the Property Assessor's data base of vacant lots in view of the legal issues 17 • Not allowing the exchange of units with the cities (interlocal agreements to transfer units) ?: CD 18 • Concern with rapid intensification of storms;just saw 2 recent storms rapidly intensify 19 • Allocations exchanged should retain their previous income category 20 • Require onsite property manager 0 21 • Object to the words "To the greatest extent practicable" CL CL 22 23 Plannin2 Commission and Public Input i 24 The Planning Commission considered the proposed amendment at a regular meeting on October 28, 25 provided for public input and recommended approval of the proposed amendments to the Monroe 26 County 2030 Comprehensive Plan amending the Future Land Use Element and the Housing Element to 27 establish a new building permit allocation category to accept and award 300 workforce housing early 28 evacuation unit building permit allocations pursuant to the Workforce-Affordable Housing Initiative 29 (Workforce Initiative), with the criteria and provisions specified in the staff report and with the a 30 following edits in italics: 2 31 • modify Policy 101.2.2 to state: These allocations are in addition to the maximum allocations 4- 32 identified in Rules 28-20, F.A.C., and shall be required to evacuate in Phase I of the 48-hr 0 33 evacuation of a pending major hurricane. 34 • modify Policy 101.3.10 to state: Notwithstanding any other provision of the Plan, except the last 35 sentence of this Policv 101.3.10, building_ROGO allocations utilized for affordable housing CL 36 projects may be pooled and transferred between ROGO sub-areas, excluding the Big Pine/No � 37 Name Keys ROGO subarea, and between local government jurisdictions within the Florida Keys 38 Area of Critical State Concern (ACSC). Any such transfer of affordable housing allocations 39 between local government jurisdictions must be accomplished through an interlocal agreement 40 between the sending and receiving local governments. Interlocal agreements that involve v)i 41 assigning the County's affordable housing (not including affordable housing allocations banked W 42 for takings cases) allocations to existing dwelliLg units within a municipality with a requirement 43 that the associated market rate ROGO/BPAS exemptions be transferred into the unincorporated 44 County as an exchange for the affordable housing allocations transferred to the municipality, shall 45 be accomplished through a minor conditional use permit approval and shall be subject to the 46 receiver site criteria in Policy 101.6.8 and may be transferred to any subarea within the 47 unincorporated County. In no event shall the County L) pool and transfer workforce housing BOCC Staff Report Page 12 of 40 File 42020-067 Packet Pg. 3495 S.1.c I early evacuation unit allocations between ROGO sub-areas, Q trans er workforce housing early0. 2 evacuation unit allocations to another ,government jurisdiction, (3) receive workforce housing e 3 early evacuation unit building allocations from another government jurisdiction, or L) trans er 4 affordable housing ROGO allocations received by the County in exchaLge for workforce housing 5 early evacuation unit allocations to another government jurisdiction. 6 • modify Policy 101.3.12 (c)(4) to state: The covenants shall require rental agreements which o 7 contain a separate disclosure requiring rental occupants to acknowledge the existing restrictive 8 covenant on the unit requiring evacuation in Phase I of the 48-hr evacuation and that failure to 9 adhere to the Phase 1 evacuation requirement could result in severe penalties, including eviction, 10 to the occupant. 11 � 12 The Planning Commission included in their motion to recommend approval of the amendments,that the 13 Planning Commission does not recommend approval of the general acceptance of the 300 workforce 14 housing early evacuation unit building permit allocations, without the criteria and provisions included 15 in the staff report and the recommended edits described above. 2 16 4- 17 Previous County Action (exhibit 8) 0 18 On May 2, 2018, Governor Rick Scott issued a press release outlining an initiative to the Florida 19 Department of Economic Opportunity("DEO")for a Keys Workforce Housing Initiative,allowing 1,300 C 20 additional Rate of Growth Ordinance (ROGO) allocations throughout the Florida Keys (ROGOs or z 21 Building Permit Allocation Systems). Commissioner Rice calls a special meeting for May 10, 2018 at 22 11 a.m. in Marathon to provide the Commission and the public an opportunity to discuss the proposal CL 23 prior to the Cabinet meeting (May 15, 2018). At the May 10, 2018 Special BOCC Meeting, the BOCC a 24 directed County staff to discuss concerns identified with DEO and provide an update to the BOCC at the 25 next meeting. 26 i 27 On May 16, 2018, the County Attorney provided the BOCC a report on the Governor's proposal for 28 1,300 additional ROGO allocations following her meeting with DEO and state level staff. He advised 29 the Board that they have a cabinet meeting scheduled for June 13,2018 to discuss the allocations further. 30 31 On May 16, 2018, the BOCC directed County staff to present the Board's questions and concerns 2 32 regarding the Workforce Initiative at the meeting with the Cabinet on June 13, 2018. 4- 33 0 34 On June 6, 2018, the County sends a letter to DEO providing County comments and questions on the 35 Keys Workforce Housing Initiative. 36 CL 37 On June 13, 2018, the Florida Administration Commission approved the Workforce Housing Initiative. 38 Florida Keys'local governments that choose toparticipate in the initiative willwork with DEO to amend 39 their respective comprehensive plans to allow for additional building permits for rental workforce W 40 housing with the condition of early evacuation. 41 v)i 42 On August 15, 2018, the BOCC directed County staff to prepare a discussion and direction item 43 regarding the Keys Workforce Housing Initiative for the September 19, 2018 regular BOCC meeting. Mr. Shillinger addressed the Board concerning the 1,300 allocations that the Governor N 44 Fti—as made available. After discussion, it was decided to place a discussion item on the September 45 agenda. E 46 BOCC Staff Report Page 13 of 40 File 42020-067 Packet Pg. 3496 S.1.c I On September 19, 2018, the BOCC directed County staff to draft proposed policy alternatives to the 0. 2 State's initiative that address several concerns raised related to the enforceability of the evacuation 0 3 provisions. Additionally, the BOCC asked the County Attorney to research whether the state's Florida 4 Keys Workforce Housing Initiative,which, if implemented,would create a precedent that would require 5 the state to award as many as 10,000 additional units in the future vs. the liability of not accepting the 6 units under the State's initiative. During the discussion, the County Attorney stated accepting the units o 7 means fewer takings cases (less potential for cases). 13 Ernily Schemper, 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 }-lousing Initiative to allow up to 1,300 additional affordable-housing allocations(up to 300 for � 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) � 8 ofa hurricane evacuation. Currently transient units (hotels)and mobile home occupants arc 2 c 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 Last Stand; Robby Majes a, and CD Dottie Moses. After discussion,motion was made by Commissioner Carruthers and seconded by Commissioner Murphy directing staff to develop a written sample policy, stalfwill meet with DEO, and then staff will conne 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 e= meetings,DRC and Planning Commission; and additional legal input regarding hoNv to avoid CL 9 6,000 to 8,000 takings eases. Motion carried unanimously. 10 11 On January 30,2019,the BOCC considered options to acceptthe 300 units. Staff drafted three(3)options 12 for consideration by the BOCC: 13 1. Do not accept the 300 early evacuation affordable ROGOs and extend ROGO allocations through 2026; 14 2. Accept the 300 early evacuation affordable ROGOs and extend ROGO allocations until 2026; and 15 3. Accept the 300 early evacuation affordable ROGOs and do not extend ROGO beyond 2023. B2 Ms. Schenaper,Ms. Hurley and Mr_ Sla.illinger addressed the Board concerning direction � regarding the initiative by the State of Florida Administrative Commission to be administered � through the Depattinent of Economic Opportunity for the Keys Workforce Housing Initiative le to allow up to 1300 additional affordable housing allocations (up to 300 for unincorporated Monroe County) in Rate of Growth Ordinance Allocations(ROGO)for rental workforcc e housing, with a condition that developments that receive these ROGO allocations have a rental CD CD management agreement in place that requires rental occupants to evacuate in the early phase(48 MI hours in advance of tropical storm winds reaching the shore of the Florida Keys) of a CL hurricane evacuation, Currently transient units(hotels) and mobile home occupant's are required to evacuate in the early phase of evacuation. The following individuals addressed the Board-,Joyce Newman,representing Last Stand; Alicia Putney,Captain Ed Davidson, � representing Florida Keys Citizens Coalition,and Ann Olsen, representing Friends of the Lower Keys. Board tools no official action. 16 il Ui 17 18 On January 30, 2019, the BOCC discussed and provided direction regarding existing and potential 19 actions, policies and programs to address exhaustion of ROGO allocations and build out of the Florida 20 Keys as of 2023 with a substantial number of platted lots remaining. The discussion involved existing 21 and potential actions, policies and programs; as well as ideas for policy changes to alleviate potential 22 takings liability, if and when the DEO is no longer able to award ROGO allocations to the County. E BOCC Staff Report Page 14 of 40 File 42020-067 Packet Pg. 3497 S.1.c B3 The following staff addressed the Board concerning direction. regarding existing and 0. 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. , Sehemper,Mr. Shillinger,Ms. Hurley,Derek Howard, Assistant County Attorney- Mike 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 11orneowner's Association, 1 and Bill Hunter, Board took no official action, 2 3 On January 22, 2020, the BOCC adopted Ord. 005-2020 to extend the remaining market rate ROGOs 2� 4 out for an additional three (3)years from 2023 to 2026. 5 6 On January 22,2020,the BOCC directed staff to prepare an agenda item to discuss and provide direction W 7 on whether to direct staff to process Comprehensive Plan and Land Development Code amendments to. 8 1) move a portion of market-rate Rate Of Growth Ordinance (ROGO) units to the affordable housing 9 allocation pool and/or 2) accept the 300 Workforce Housing units offered by the Department of 0. 10 Economic Opportunity (DEO)required to evacuate in Phase 1 of the Hurricane Evacuation model. 2- 11 ?: 12 On February 19, 2020, the BOCC discussed whether to direct staff to process a comprehensive plan and CD 13 land development code amendment to: 1) move a portion of the 378 remaining Market Rate - Rate of z 14 Growth Ordinance (ROGO) units through 2026 to the Affordable Housing allocation pool and/or 2) 0 15 accept the 300 Workforce Housing units offered by the Department of Economic Opportunity (DEO) 16 required to evacuate in Phase 1 of the hurricane evacuation model. The BOCC did not decide on the 17 potential shifting of market rate allocations to the affordable housing pool but did direct staff to start the 18 process to accept the 300 workforce housing units. l7 Ms. Sclaemper gave a.Power point Presefltation on.the discussion.and direction on 0 whether to dire�t staff to process a C oniprehensivte Putt and Land Development Cade amendrtrent to; 1 rtxtove a portion of the 378 remaining Inark t rate Rate. of Growth ordinance units through 2026 to the affordable Housing Allocation Pool: andrrar, 21 accept the 300 .+or l rce hots inn traits otT red by the Department eel?F.,cotr uric Opportunity required to evacuate in phase: 3 Of the htrrtrieane evacuation rnod'el. Mr- Shilfinger, Lisa Tennyson, � Legislative Affairs C`Trants Acquisition Director;and 11•'ls_ Hurley addressed the Board, The following individuals addressed the Bard. D.A. Aldridge, :Last Stared- Jan eblstein� representing Cudjoe Gardens Properly Owner's Asscaciation Stuart Schaffer. representing Sugarloaf Shores Property Owner's Asscviafion.„ erred .Dotti Moses. After discussion,Motion Was inade by Commissioner Coldiron,and seconded by Commissioner missioner-Cates to start the process to accept the 300 Workforce housing units, Roll call vote was taketr with the following reqults: Ui 0 Cortttrtissiotter Cates `r'es; Corninissicatrer Coldiron Yes Commissioner Mrrtl,1hy N'o Commissioner Rice Yes Ui Mayor Carruthers No cv 19 Motion carried. CD 20 21 On April 15, 2020,the BOCC adopted Resolution 100-2020 providing for a temporary suspension of the ar 22 expiration of ROGO and NROGO allocation awards, issuance of allocation award letters, deferring U BOCC Staff Report Page 15 of 40 File 42020-067 Packet Pg. 3498 S.1.c I administrative relief application deadlines, and deferring the processing of new and existing ROGO and 0. 2 NROGO applications and Planning Commission review due to the impacts of COVID-19/novel 0 3 Coronavirus. 4 5 On July 15, 2020, during a discussion item on potentially shifting market rate allocations to the 6 affordable housing pool (agenda item I5),the BOCC provided further direction to staff on accepting the o 7 300 workforce housing early evacuation unit building permit allocations. The BOCC directed: accept 8 the 300 workforce housing early evacuation unit buildingpermit allocations to be used in exchange for 9 existing affordable allocations at multifamily developments (for developers that agree to the early 10 evacuation restriction) and the affordable housing allocations returned to the County (returned in the 11 exchange) be set aside and banked for takings cases (bank them within an administrative reliefpool). 12 13 On January 20, 2021, the BOCC adopted Resolution 041-2021 to transmit the proposed amendments to 14 DEO to review the 300 workforce housing early evacuation unit proposal, with a modification to Policy 15 101.3.12 to eliminate the requirement for a development agreement. With the 300 unit amendment being 2 16 structured as an exchange program, the projects exchanging units have previously completed their 4- 17 development review and multiple hearings for a development agreement seems unnecessary, time 0 18 consuming and costly. The BOCC and staff can review approve the exchange through a resolution 19 approving a contract. DEO reviewed the amendment and issued an Objections, Recommendations and 20 Comments (ORC) report, received by the County on March 30, 2021. The ORC report stated, "the z 21 Department does not identify any objections or comments to the proposed amendment." 22 CL 23 24 III. PROPOSED COMPREHENSIVE PLAN TEXT AMENDMENTS i 25 26 Proposed Amendment(deletions are additions are shown in underlined) i 27 28 Objective 101.2 29 As mandated by the State of Florida,pursuant to Section 380.0552,F.S. and Rule 28-20.140,F.A.C., 30 and to maintain the public health, safety, and welfare, Monroe County shall maintain a maximum 31 hurricane evacuation clearance time of 24 hours and will coordinate with the State Land Planning 32 Agency relative to the 2012 Memorandum of Understanding that has been adopted between the 33 County and all the municipalities and the State agencies. c 34 35 Policy 101.2.1 36 Monroe County shall maintain a memorandum of understanding with the State Land Planning 37 Agency, Division of Emergency Management, Marathon, Islamorada, Key West, Key Colony 38 Beach, and Layton to stipulate, based on professionally acceptable data and analysis, the input 0. 0 39 variables and assumptions, including regional considerations, for utilizing the Florida Division 40 of Emergency Management's (DEM) Transportation Interface for Modeling Evacuations 41 ("TIME") Model to accurately depict evacuation clearance times for the population of the hI 42 Florida Keys. 43 44 Policy 101.2.2 45 Monroe County shall coordinate with all the municipalities, the State Land Planning Agency 46 and Division of Emergency Management to update the variables and assumptions for the E 47 evacuation clearance time modeling and analyses of the build-out capacity of the Florida Keys BOCC Staff Report Page 16 of 40 File 42020-067 Packet Pg. 3499 S.1.c I Area of Critical State Concern based upon the release of the decennial Census data. Pursuant to 0. 2 the 2012 completed hurricane evacuation clearance time modeling by the State Land Planning c 3 Agency, which incorporates the 2010 Census data, the County may allocate 10 years' worth of 4 growth(197 x 10= 1,970 allocations, 197 annual ROGO rate based on Rule 28-20.140, F.A.C.) 5 through the year 2023,while maintaining an evacuation clearance time of 24 hours. The County 6 w-4 adoptecj a slower rate of annual allocations for market rate development to extend the o 7 allocation timeframe to 2026 .3 without exceeding the total of 1,970 allocations (see Policy 8 101.3.2). The County shall reevaluate the annual ROGO allocation rate based on: 1) statutory 9 changes for hurricane evacuation clearance time requirement standards; 2) new hurricane 10 evacuation modeling by the State Land Planning Agency and Division of Emergency 11 Management; and 3) a new or revised memorandum of understanding with the State Land 12 Planning Agency,Division of Emergency Management,Marathon,Islamorada,Key West, Key 13 Colony Beach and Layton (see Policy 101.2.1). 14 15 1wltbstan din g the fore�t�in� and ursuant to Policies 101 3 2. 101,33 and l.01..3 1.2_A.Monroe 2 16 C ou—ntv__stia11 establi_s1i a new a11t-cation c Le t�ry to acc t and award 300 workf`or 1�t�L�sin m __ m ___ 17 Bally evacnation Unit bnilclin Permit allocations pjjjs ant t2 the I orkforce affordable 18 H_ousin Initiative f)olicv IQ 3.12_m"O orkft>rce_ nitiamtive} mllimese_allo-ca-ti-ons are_in a-ddrti-on_-t-o 19 the 1 aximu allocations identified in ules..2.8-20 F,A C ._and shall be required to evacuee 20 in_Pliase_I_c>f_tfre_�8 1rr_evacc�ati-on__of__a_ ending inc for 1 urricane. 22 Policy 101.2.3 CL 23 The County will consider capital improvements based upon the need for improved hurricane �t 24 evacuation clearance times. The County will coordinate with the FDOT,the state agency which 25 maintains U.S.1, to ensure transportation projects that improve clearance times are prioritized. 26 i 27 Policy 101.2.4 28 In the event of a pending major hurricane (Category 35)Monroe County shall implement the 29 following staged/phased evacuation procedures to achieve and maintain an overall 24-hour 30 hurricane evacuation clearance time for the resident population. 31 1. Approximately 48 hours in advance of tropical storm winds, a mandatory evacuation of non- 2 32 residents,visitors,recreational vehicles (RVs),travel trailers, live-aboard vessels (transient 4- 33 and non-transient), affd military personnel and..:units �PPrt>vecl �ncl cleec� res trlc�tecf as 34 w-orkft>rcme__Ii-o_usln� earlv__eva_cuat on__ imts from the Florida Keys shall be initiated. State CD 35 parks and campgrounds should be closed at this time or sooner and entry into the Florida 36 Keys by non-residents should be strictly limited. CL 37 2. Approximately 36 hours in advance of tropical storm winds, a mandatory evacuation of � 38 mobile home residents, special needs residents, and hospital and nursing home patients 39 from the Keys shall be initiated. 40 3. Approximately 30 hours in advance of tropical storm winds, a mandatory phased evacuation 41 of permanent residents by evacuation zone (described below) shall be initiated. Existing Ui 42 evacuation zones are as follows: 43 a) Zone 1 - Key West, Stock Island and Key Haven to Boca Chica Bridge (MM 1-6) 44 b) Zone 2 - Boca Chica Bridge to West end of 7-mile Bridge (MM 6-40) 45 c) Zone 3 - West end of 7-Mile Bridge to West end of Long Key Bridge (MM 40-63) 46 d) Zone 4 - West end of Long Key Bridge to CR 905 and CR 905A intersection (MM 63- E 47 106.5 and MM 1-9.5 of CR 905) 48 e) Zone 5 - 905A to, and including Ocean Reef(MM 106.5-126.5) e( BOCC Staff Report Page 17 of 40 File 42020-067 Packet Pg. 3500 S.1.c 2 The actual sequence of the evacuation by zones will vary depending on the individual storm. 0 3 The concepts embodied in this staged evacuation procedures should be embodied in the 4 appropriate County operational Emergency Management Plans. 5 6 The evacuation plan shall be monitored and updated on an annual basis to reflect increases, o 7 decreases and or shifts in population;particularly the resident and non-resident populations. 8 9 For the purpose of implementing Policy 101.2.4, this Policy shall not increase the number of 10 allocations to more than 197 residential units a year, except for affordable housing. Any 11 increase in the number of allocations shall be for affordable housing. Mt>nxt>e ,c>L tv hereby 12 accepts 300 workf`t�rce (MI. .�rclable} housim4 earlvmevacuationmmunitmbuildin� en-nit allocatit�ns 13 .111s �ant...:to the ' orkf orce �ff ordable... It�L�sln g Initiative (Policy 101 e3,l 2 Workforce 14 Inrtl_�t1ve _a- tli-orlaed--bv tlie__ lorltla_ t- lnistrati-on_-Ct-i i lssi-on__a t1 t1iem l-or-i a--D)e artr ent 15 f ct»t» i.c Q orti�nl�ty These allc>ca it>ns are in acicli�tic>n �tc>the�na�i�nL��n allocations identified 2 16 in R-u-lems 2 20 1- .C s1iam11 f?e rests lcted to yenta-1 tic c LI anmcvf t.r tliose who derive at least 70 17 of:their inco e as members bers..of the workforce in Munro County and who meet the affordab1 18 housing inct»ne categories of` the IMvlonrt>e County I..ancl Devek meat Code. The allocationsCD 19 stiall.be reclL iretl tt °vac Late in E'1�ase 1 t f`t1�e 43 1�r °vac L atit n t f`a pentlin na'or hurricane, CD 20 N-o new additional residential dwelli hase I 21 of' the ���1.r °vacL.�t� rnbnles... t t: . � .. .d �. � 22 Commission and them lorlcla__f artinent Economic Opportunity after review of_ hurricane CL 23 evac,uatJt»I-.no ehn resr Its by the to e 1...anc11'lannin encv and tFre Division of E ner-,ena 24 vlannernent of available evacuation ca nacity and a review of the level of`service and available 25 c;ap_acity f`tr allLblic f`acilitiese 26 i 27 Objective 101.3 28 Monroe County shall regulate new residential development based upon the finite carrying capacity 29 of the natural and man-made systems and the growth capacity while maintaining a maximum 30 hurricane evacuation clearance time of 24 hours. 31 2 32 Policy 101.3.1 4- 33 Monroe County shall maintain a Permit Allocation System for new residential development 0 34 known as the Residential Rate of Growth Ordinance (ROGO) System. The Permit Allocation 35 System shall limit the number of permits issued for new residential dwelling units. The ROGO 36 allocation system shall apply within the unincorporated area of the county, excluding areas CL 37 within the county mainland and within the Ocean Reef planned development (Future 38 development in the Ocean Reef planned development is based upon the December 2010 Ocean 39 Reef Club Vested Development Rights Letter recognized and issued by the Department of W 40 Community Affairs). New residential dwelling units included in the ROGO allocation system 41 include the following: affordable housing units; market rate dwelling units; mobile homes;ftffd Ui 42 institutional residential units (except hospital rooms), and workfmtvice_1iouslnv earlvevacuation � 43 units, m 44 45 Vessels are expressly excluded from the allocation system, as the vessels do not occupy a 46 distinct location, and therefore cannot be accounted for in the County's hurricane evacuation E 47 model. Under no circumstances shall a vessel, including live-aboard vessels, or associated wet 48 slips be transferred upland or converted to a dwelling unit of any other type. Vessels or BOCC Staff Report Page 18 of 40 File 42020-067 Packet Pg. 3501 S.1.c 1 associated wet slips are not considered ROGO allocation awards, and may not be used as the 0. 2 basis for any type of ROGO exemption or THE(Transfer of ROGO Exemption). 0 3 4 ROGO Allocations for rooms, hotel or motel; campground spaces; transient residential units; 5 and seasonal residential units are subject to Policy 101.3.5. 6 0 7 Policy 101.3.2 8 The number of permits issued for residential dwelling units under the Rate of Growth Ordinance 9 shall not exceed a total of 1,970 new allocations for the time period of July 13, 2013 through 10 July 12, 2026, plus any available unused ROGO allocations from a previous ROGO year and 11 300 workforce housing early evacna it>n nni�t bnilcling erzni�t allt>ca �t>ns authorized by the 12 F-1-oriclam__ tli inistrati-on_ C or i fission ant1---the__ it_rid_a__Dep rtr ent mEc ono is QRMLLinity. A S 13 ROGO year means the twelve-month period beginning on July 13. Market rate allocations shall 14 not to exceed 126 residential units per year.Unused allocations for market rate shall be available 15 for Administrative Relief. 2 16 4- 17 In 2012, pursuant to Rule 28-20.140, F.A.C., the Department of Economic Opportunity 0 18 completed the hurricane evacuation clearance time modeling task and found that with 10 years' 19 worth of building permits, the Florida Keys would be at a 24 hour evacuation clearance time. 20 This creates challenges for State of Florida and Monroe County as there are 8,168 privately z 21 owned vacant parcels [3,979 Tier I; 393 Tier II, 260 Tier III-A (SPA); 3,301 Tier III, and 235 22 No tier (ORCA, etc.)] and with 1,970 new allocations this may result in a balance of 6,198 c. 23 privately held vacant parcels at risk of not obtaining permits in the future. In recognition of the 24 possibility that the inventory of vacant parcels exceeds the total number of allocations which 25 the State will allow the County to award,the County dt ped a,slower rate,of a nua allocations _ _ � 26 for inarket rate clevelt) Ine t_tLl extent1 t1iemallocati-on_tiinefraine to-202-6--andl_IsmAcce�tin 27 workf t.)rc.e (afft.)rclable) lit.)Lisin e fly evacuation Unit bL ilclinm P.err it allocations L.rs:L an:t ttf 28 the orkft.rce .ffo.)rclable Ht-L sin initiative(1'o licvl f}l 3 l2 O t�rl force fnitiatfve authorized � 29 lo>ricla De artment Economic 0 ortLunity. 30 These workforce lio-usin6, early evacnation allo>catio>ns that are in addition to> the maximun 31 build ink peer It 11t c titans Iclent fled In Liles 2 2f} l eC e Tl�e C:t LLnty will consider adopting �? 32 an extended timeframe for distribution of the ROGO allocations through 2033 with committed 4- 33 financial support from its State and Federal partners. This timeframe can provide a safety net 0 34 to the County and provide additional time to implement land acquisition and other strategies to 35 reduce the demand for ROGO allocations and help transition land into public ownership. 36 CL 37 The County is actively engaged in acquisitions and is requesting its State and Federal partners 38 for assistance with implementing land acquisitions in Monroe County. The County will allocate 39 the 1,970 new dwelling unit allocations thrt>r 1r 1L11V I2. 2ff26 v=. °:' t' � _ . If 40 substantial financial support is provided by July 12, 2018 023, the County will reevaluate the 41 ROGO distribution allocation schedule and consider an extended timeframe for the distribution U)i 42 of market rate allocations (through a comprehensive plan amendment). Further, the State and 43 County shall develop a mutually agreeable position defending inverse condemnation cases and 44 Bert J. Harris, Jr. Private Property Rights Protection Act cases, with the State having an active 45 role both directly and financially in the defense of such cases. 46 E 47 The County shall distribute ROGO allocations by ROGO year, as provided in the table below. 48 BOCC Staff Report Page 19 of 40 File 42020-067 Packet Pg. 3502 S.1.c 1 Annual Allocation ROGO Year c Market Rate Affordable Housing Workforce Initiative N 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 cu July 13, 2017—July 12,2018 126 N/A > July 13, 2018—July 12,2019 126 CD July 13, 2019—July 12,2020 126 568 total AFH ire July 13, 2020—July 12,2021 64 (total available 0 July 13, 2021—July 12,2022 64 immediately) July 13, 2022—July 12 2023 64 4- July 13, 2023—July 12,2024 62 300** c July 13, 2024—July 12,2025 62 July 13, 2025—July 12,2026 62 TOTAL 1,260 710* 309! CL *Includes two annual affordable ROGO allocations for the Big Pine Key/No Name Key subarea)through the Incidental Take Permit(ITP) ending in 2023. etl ** Workforce i�aus�r�(c�r� c��c u�t�ar� ur��t �llac�t�ar�s si��ll �c ����l�l�lc c aur�tye��c�c (tlriiricat�at etc c� count ar�c� U Clrstrrl)CitC C1 dri a firs[ Come fits[ see C l ass laE C CiC sts fot C14�E��rnC7 Irrrrts ClE�C�OPJ�d rrrC1 Or C1C E C1 rC strrCtE C1 Citr�rzirn ...... th orkfor �COCiSrrt�7 C Et�y C� ECU EtrOrt tirtrt E��OC EtrOrrs EtC SIl1r�C-C C[d C�CC �rd�lS1dr15 df l�d�lCy ��}�.�.�2. �I 2 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 5 Commission to authorize the above allocation timeframe and rate. 6 2 7 Policy 101.3.3 4- 8 Monroe County shall allocate at least 20% of the annual allocation, or as may be established by 0 9 the State of Florida,pursuant to Administration Commission Rules,to affordable housing units 10 as part of ROGO. Any portion of the allocations not used for affordable housing shall be �I 11 retained and be made available for affordable housing from ROGO year to ROGO year. c. 12 Affordable housing eligible for this separate allocation a ct_w'orkf''orce,_1i'ou',sinq_eIIE y evacuation 13 uni-ts shall meet the criteria specified in Policy 601.1.4 and the Land Development Code, but 14 shallnot be subj ect 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>r€� lrmt>�1sin earlv__evacuation 16 1 .i is shall not be located within an area designated as Tier I as set forth under Goal 105 or OI 17 within a Tier III-A Special Protection Area as set forth in Policy 205.1.1. 18 N 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: E 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. 3503 S.1.c 1 2. The proposed replacement affordable dwelling unit meets current Florida Building Code and 0. 2 is not a mobile home; a 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. o 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 12 next ROGO year based upon, but not limited to the following: 13 a. expired allocations and building permits in previous year; 14 b. allocations available, but not allocated in previous year; 15 c. number of allocations borrowed from future quarters; 2 16 d. vested allocations; 4- 17 e. modifications required or provided by Administration Commission Rules; 0 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; z 21 and 22 h. receipt or transfer of allocations pursuant to the 2012 Hurricane Evacuation Clearance 23 Time Memorandum of Understanding. �t 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 0i 27 of permits for new residential development during the calendar year. 28 29 Policy 101.3.5 30 Due to the limited number of allocations and the State's requirement that the County maintain 31 a maximum hurricane evacuation clearance time of 24 hours, Monroe County shall prohibit 2 32 new transient residential allocations for hotel or motel rooms, campground spaces, or spaces 4- 33 for parking a recreational vehicle or travel trailer until May 2022.Lawfully established transient 0 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 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 hI 42 clearance time of Monroe County. 43 44 `V cv 45 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 �t BOCC Staff Report Page 21 of 40 File 42020-067 Packet Pg. 3504 I IIIA,the County or the State shall offer to purchase the property if funding for such is available. 0. E 2 Refusal of the purchase offer shall not be grounds for granting a ROGO award. 0 3 4 Policy 101.3.10 5 Notwithstanding any other provision of the Plan, ex e t tfie last sentence of' t1lis..P 9.P.................................................................... ....................... J-01, ................................ ......... 6 101, JO. building 144G-0 allocations utilized for affordable housing projects may be pooled 0 - ----- ----------------------- 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,'"a,ftord,' &,e"Ii,ou,s,i,ng allocations between local 10 government jurisdictions must be accomplished through an interlocal agreement between the 11 sending and receiving local governments. friterlocal..ggreernents that involve assigfli g the 12 Countv's affordable CD ----------- __Lq�IL_inc_Iud_ing affordable housing allocations banked for takin )�s E U) 13 cases 11lici a/iw.with-a reaurrernent that the :5 .................... ..................... .................. 0 14 associated market rate ROGO/`BPA,S exern Lions be transferred into MthLeuui�ninco crated County ------------------------------------------------------------------- - - -_ - � i�()n s b�� a transferred a into(.):� - - 15 as a ex Ii nee for the affordable liousim4 allocations transferred to the munici'valitv., shall be .............. ....................................................................................................................... ...................................... 0 4- 16 acc-o-rnplished throm4l'i a minor conditional rase permit a moval and shall be subiect to the 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 0 18 unincLI III_nLj_event shall the_County 1.1 oo and transfer wor orce iousingy - --- LCD 19 earl unit allocations -areas. h o Lis�in g .............. transfer C 20 early evacuation unit allocations to another-&,(.)vernineryCLirisclicti(.)n. 3� receive workforce Z ------------------------------------------------------------------------------------------ --------------J_ — 21 hous n ea i4overnrnent 'u i diction,.or(4) 0 ..................fl..._i�y� i E ........... .............— P 22 tr ___ by------------------------------- --—-------------------- )r 0 23 workforce Housing riment 'urisdiction, ........................................................................... .................................................. 24 25 Policy 101.3.11 0 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 4,4 transfer annually (by July 15th) any remaining unused allocations for that 30 year to the other Florida Keys' local governments based upon the local governments' ratio of 31 vacant land. Any transferred allocations from the City of Key West to Monroe County shall be 2 0 32 made available for Administrative Relief. Monroe Coun t7v rnav receive.,and award 300 buildin.g 4- ----------------------------------------------------------------------------------- 33 p e ea 11-nit allocation.s...d. signated as workforce liousim4 earl ant to the 0 ............................................................ ........... ................... ?: 34 'Aorkforce-Affordable Housim4 initiative (Policv 1013,12 "`orkforce fnitiativej_A� L g�L 1 CD ------------------------------------------------------------------- ------------------------------------------------------------------- __p �.I�j t � 35 by the Florida Administration Commission and the Florida Department Econornic 0I)DOrtu , ................DAY, 36 These allocations that are in addition to the maximurn allocations identified in Rules 28-20 CL 37 F,A.,C,,.and slial I be required to evacuate in Phase I ofthe 48-fir evacuation of'��ncfing�rna' ......................... ................................................................ r_ 0 38 hurric-an-e-, 39 40 tPolicy 101.3.12 41 Workforce-I _. on-straints on U)I 42 affordable housing. t()_pr()tectI a riO'its and addresc, notential liability the County affordable ......... - i )rce fn_itiativ�e ....gs 43 i Iting in the ",(.)rl<f(.)rce-,A.ff(.)rclible Housing.. i ative orkft�p ja t..qjljgp� ........... .................... 44 orida Administration Commission, Monroe 45 C..o......u... V_accepts.......t...h......e..........3..0.. 0......w.o.....rk......f...o.r...c..e.......t..i ou.s....i...n_q early 46 s_t.....to the " orkforce-Affordable Hou inL, fnitiative authorized by... ie Florida -------------------------------------------------------------------------------- -_ - . E 47 AdIni'ni'stration Commission and the Floida...De rtment Eco ornc....0 a I lie .......................................................................................................................................................................................i............... ...... .............J__ ___p_p qy, The 48 'A-orkf(.)r-ce--A.ff(.)rd-ab-le--H-ousi-n� initiative will rectuire dwelling s constructed and/or deed BOCC Staff Report Page 22 of 40 File 42020-067 Packet Pg. 3505 I restricted with workforce liousing..g.4jty_evacuation building..-permit allocations to evacuate 0. .................................................................................................................................................... permit E 2 occLi ants in Phase I of' the 48-fir evacuation of' oendim4 i-n Ii an sut to the 0 -------------------------- 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 ............................................................................................................................ ........... r�s�.t� sible....ftrr� in-ana. -nents associated with the workf(.)rce .0 7 hous n e 1 0 e 11 it allocations, Monroe C unty shall ensure adherenc ............... ................................................................................................................................. 8 to these "!ILU� e LttLernents throulgh implementation of` Policy and shall an ------------ ----------------------------- ----------------------------- 9 ......l...o.r1d-- —D9p.a..r.t.m.....e..n...t...Ec...o..... .o nic........!��p�.2qLg i 10 liousim4 earlv evacuation units built andor deed restricted., occup --------------—--------------------------------------------------------------I-----------------------------------------------------112saincv--ra-te-s-.,--and--coinpliince 11 the units in Phase f of`an evacuation, The annual rer)ort shall 12 be CD .meLdt_tc.1-ttie--S-ta-te--in--a--ti-i-ne-lv--i-na-nner--su-cli---tli-a-t--tli-e--S-ta-te--i-n-av--in-cl-u-d-e--tti-e--inf(.)ri-n-a-ti-on---in. E 13 the net on the Court S :5 ................i ...........pmaess—toward 0 14 corn letion of`its Work Prourai ule 28-20., FA-C, 15 2 0 16 Dw I im4 units devel,Nned and,"or---deed restricted utilizing—the workforce housing early 4- -- - - ----- 17 evacuation unit allocations are.subj.��qto the following: 0 ............................................................................................................................................... ................................................................. ?: 18 CD 19 (a) Regquests for workforce housing.ear 20 for a I f(.)r I_exchan affordable�alloca�tions�,`e�xem LtLT .1 Lt tion via Z .gg f or, L a _L q L_11ire a reserva ------------------------------------- 0 21 BOCC resolution, The BOCC.rn V at its discretion. p tions reserve ion ................................................................................................................................... J _on�q ......................... ............ 22 as it deei-n�_qUall.) The BOC CL --------------------- priate, The BOCC i-nciv_.,_ atitsd_isc_retion_.,_-exc-li-an.�4e existim4 reserved 0 23 aff(.)rdable allocations f(.)r allocations under the Worki"orce fnitiative .........................................................................................................................................................................................................................................................................................................................................................ta PEIK� 24 developM.�j���L__�IIL�L partners willing to meet the r--l— ents of' the -------------- 25 workf(.)rce liousim4 early evacuation unit allocations, Further. the BOCC fn� ............................................................................ 0 26 di-scre-n-o-n-.-,-- aff(.)rdable 1iousim4 unit, Ca 27 _(jawful_affordable exern2tions) at existing..1 q1tifiarnily residential develoornents for ............................................... 28 al-loca-ti-o-n-s---Linder_the—Wo-rUorce---fni-Iti-al'ILL_ILI_pEiys���Li2i_.qlldt_.nt.IIIVLgf'i-t--se-c tor 29 partners wlllln tt>meet the r of the workforce housim4 early evacuation unit 30 allocations, 31 e f(.)r workforce 2 - .. - - - - - - --lian— 0 32 early evacuation unit allocations shall be banked and used for ftiture administrative 4- --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 33 relief`. inverse condernnation cases and 0 34 Bert J, Harris., Jr, Private Pr ?: L)D��rtK-Ri.ghts Protection Act cases, CD 35 ..... b affordable allocations ........... . 36 returned to the County shall be maintained as affordable allocations and shall also be CL 37 returned to.the.original affordable housing te )�()ry vervl(.)w�,"1(.)w�,"i-necliininc(.)i-nevs,returned.................... r- 38 rn odera te income 0 ----------------------- --- _pLool), 0. 39 ocations i-nust be utilized based on the W 40 oi-44inal approved affordable housinuinct me sate t ry or a lesser income cat�,orK,. 41 (4) Adr i.n i..s tr2.Ii.ye...Ie.IJ ef.J.-D..e.An s actions o.R.s tq. k.e.n by the County granting the owner of'real U)1 42 p DI) from the continued a lication of the Rate of' Growth Ordinance 43 yided th e ............................. CN CD 44 P-la-n--an-d--I.,an-d--Deve-I-L.) CN 45 (5) Beneficial use means the use of ............................................................................................................................................. �rt� arty that allt�ws an t�wner tt� derive a benefit ter 46 pL�.IC�L in the exercise of' a basic ertK i yt, For the purpose of this olicy.., E ---------------------------------------------------------------pL.)2___.f_gL ........... 47 beneficial use shall mean the minimum use of'.tIIe.-P..jQPeqy necessary to avoid the .................................................................................................................................................................................................................................. 48 findim4 of` r taking under current land use case law, ------------ of 11 re ----------- BOCC Staff Report Page 23 of 40 File 42020-067 Packet Pg. 3506 I (b) BIg ctj s�juction of"dwelling or the deed restriction existing 0. ............................................. ................... ................ ............................................. ....................... __existing E 2 dEcUim4 units utilizim4 workforce housim4 early evacuation unit allocations-sh I _Lnt� ------------------------------------------------- a I tE�� 0 allocations al?Pro.v.a.l...of' a resolutio ..a r-vi between the BOCC an t to ..................................................... 4 officiallv excham4e the allocations and confirm cornoliance with the -reclurreme --- - --- nts - ---- ----------------------- 5 Worki"orce Initiative within this PoliM .............................................................................................................................................................. 6 (c) �.11 Lorkf(.)rce--Ii-ou-s-iL.6, early_e-vacua-ti-on--uni-ts--re-qLiire a deed krestric tit on ensuring: 7 (1 t2jti on o ........................ 8 _Iti_jj,��_]L`orkft)rce fnitiative., a restrictive covenant shall be appLwed ----------------------------------------------------------------------------------------------------------------- 9 by the Plannim4 Director and County A ttornev and recorded in the Office of'the-Clerk 10 of"the County to ensure compliance with the orovision of_this section running in favor 11 of the C.QURII and enforceable by the County if gp�p ................................. JiLahlg —a—participating 12 i-nunicjMlitK,_112,�_i�Itl�l�Lin its shall a to these restrictive covenants: ------------------------------------------------------------------ 13 a, The covenants for any w(.)rl<f(.)rce housing.gqjty evacuation units shall be effective ................................................................................................... 0 14 for 99 vearse 15 b, The covenants shall not commence run n i n g..un..t.i L.a..c e.rti.fi.c.a t.e..o.f'.oc.c.jjPan 2 �n�n�nn ......................................................................................................................................................................................... 0 16 been issued v gilding Official for the dwelling unit or dwelling unit, 4- --------------------------L gil_ding Official which the covenant or coven an ts.�j�_pp ................................................................................................................................. _ .lye0 18 c. For exis ' 4 dwelling units that are deed-restricted as workf(.)rce liousim4 early ?: -------------------nmi--- CD 19 evacuation units. the covenants shall commence runninL.Iip CD evacuation .gE..I�jaja ti o.R.-in tli..e.. C............ 20 O-f'fi-ci-al--R-ec-ords--o-f'-M-onroe--C-oun-L\L,. z 21 units to be 0 22 restricted to rental-c�c-ciipAncv--f'(.)r--tli-o-s-e--wli-o--de-r-iv-e--a-t--Ie-as-t--7-0%--o-f'-tlieir income as CL 0 23 members of" the workf(.)rce in Monroe County and who meet the afTordable housin ................................................................................................................................................................................................... 24 income �LL�g ories of' the Monr(oc C ourtVLand Develci jjjs U 25 are re q annually verify their em ment and,/or income eligibilitV,. jiired to U ......... 0 26 U11-Th e--c oven ants a I l__L��qu_ireo_cc_U ca 27 tIi pentllng U "-n,�.gE...I'lurricane, Persons living in the workforce housing early .......................................................................................................... 28 ev-ac-uati-on--un-its-wlio-i-n-av--b-e--ex- 29 law eirforcernent., correctional and fire 1. health care rsonnel. and c .................................................................................................................................. .. and_p 30 efyipl oy��.s...with.e...n..Lr&e.ncy 111 t'l---at t -31 indicates.their employment is and not included 2 ......................................................................... ........................................... 0 32 in the list of'ex ibove, then the Planning Director shall termine., in writing, 4- 33 wli e th e the be exempted because of 0 ..............................1 �Iy� - .............._21��- ?: ........................ 34 el erLencv____Amny__oerstrn rn i under thi hall submit an CD 35 al.'fldavi tof with the onsite proper 36 management, CL 37 which contain a sevarate disclosure 0 38 LeLqui ingrentaloccu nts to acknowlLctL)e the existing restrictive covenant_on the unit -------------------------------- 39 recLrrrin evacLration in Phase I of`the 48-lir evacuation and that failure to adhere to W 40 the Phase I evacuai' ment could result in sever penalties. in - --- -- -------- U) 41 eviction to the occupant............................... ........................ ._5�� 42 Lf-I-EI��--c oven ants slial ners and a s r e e-n --------------------------------i �L _inL�q . �,Xj L --- i P_10y!iL�LI 43 disclosure I maintenance of' procedures and an .............. 44 acknoL�Li ehernent that failure to adhere to the Phase I evacuation reclurrement could - ------ 45 result in severe e including termination,�p .................................. ............................ ...................................................... 46 (d) early_Lv-Luation units shall be restricted to rental_occut)ancv for those ----- ----------------------------------------------------------------------------------------------—------------------- - E 47 who derive at least 70% oftheir incoi-ne as i-nei-nbers of"the workf(.)rce in Monroe County who ....................................................................................................................................................................................................... 48 and who meet the aff(.)rdable housing i'ncorne categories of the Monroe County [.and ---------------------------------------------------------------------------------- -------------- BOCC Staff Report Page 24 of 40 File 42020-067 Packet Pg. 3507 I Developi �mt...Cgde, Workforce means individuals or families who are i4a n u y 0. ............................... . .......................................................................................................................................................................................................................................................................... E 2 ern P-I—()V-�A-swmIvi-m4 i400ds and,"'or services to Monroe County-re-s-i den ts-or-vi-si-tor.s, 0 3 (e) M,orkf(.)rce housi U n&��IE.l units shall r a Tern en t with th I 4 prc> arty inn ers trained in evacna ic>n procedures and required to rn 5 evacuation of tenants in Phase f of an evacuation.,..Diirin.iy..traditionaI workin_q.11gIt 5,jhe ........................................................................................................................................................................................................................... .... ....... .................._...................................... 6 mmamt\�12 sini4 earl v--ev-ac-u-a t-i on-unIt 0 7 ...................... Outside the—traditional workini-4—hours........tb.e P..mmm 8 InL'Ea uation orders, 9 (f) 1hg x petty early evacuatt )n units s'ia I 10 be_L��quired to annual lov-Egnt and incorne eligibility of' �IIIL 1fp cart ----- ----------- --------------------------------------i- —-------- I I the total units on the y rates—()f Lin its...qR�I.t��gj pliance with the .......................................................................................................... ................................................................ 12 L�Lqu-irern-ent--to--ev-ac-uate the--units- in Ph-ase--f--of'-an---evac-u-at-ton. including- - -the number of E 13 nagernent :5 _.g.gLip t Th prgpe�rna�— 0 0 .qjq�.that are exernptft�!! .1b.9-evacua ion rec urrernents, ............................................................ ................................................... �nl lie 14 entity must subrnit_a urces Dem ----------------------------------------------- tqn-n-ing and Environmental Reso -ru-n-en-t-by 0) 15 M�jy I of each year, Further each lea A ftis.a n a1 report.s..l.i.al..I..b.e.kgp 2 0 16 rnanag�j�����Ltion bV the CounjUtgling traditional working hours. 4- ------------ ---------------------------------- ----- 17 (g) M,orkf(.)rce hous n e' desii4nated as 0 ................................................................ .................................... ?: 18 Tier fflm CD 19 (11) Workforce housing V-Zone or within a ............................................................................. 20 Coastal Barrier ResourceSystern_(LBRS), Z ------------------------------------------------------ --------------- 0 Workforce housiD 21 (i) ........................................................................ shall be loc r.p�ty wfiich has all 22 infrastructure available t LI.E-q __E�L_��water treatment and di CL ---------------------------------------------------- 0 a 23 wastewater rn ee tin -- P—avedroads etc ......................................... 24 0) All workforce__ iousini4 early evacuation units must dernonstrate coi liance with all�D p 25 g1?1)Iicable federal standards for accessi iit7V fo disab_.................................................................................................... e�rs(.)�ns�wi�tii�disabili�ties�,,�.F),,��. 0 26 CLII]2pji�ance , ca 27 (k) ��.ticable., a develo i i.zi.n- workforce o sing early ' practicable........................... 28 evacuation unit allocations shall incLjyp > L)rate_sustainable_and resilient design_princi ----- ----- ------------- ------ ------- 29 in-t-o--th-e--ov-eral-I--slue--des------------------------------ Ste-s. i_q sib I e to ernpigyrneryt centers in Key West-...51t! k.......................................................................................................... ............................................................... 30 island-anal-M-ara-th-o-n-, 31 2 32 GOAL 601 0 4- 33 Monroe County shall adopt programs and policies to facilitate access by residents to adequate and 0 34 affordable housing that is safe, decent, and structurally sound, and that meets the needs of the population 35 based on type, tenure characteristics, unit size and individual preferences. 36 37 Objective 601.1 0 38 To-e-n-s-ure that affordabl-elii�u�i-ng ortunittes are available throm4hout the entire cornmunitv--and 39 to maintain.._a balanced and sustainable local econornv and therevision of essential services.,Monroe .................................................................................................................................................................................................................................. 40 County shall implement the following defined policies to reduce estimated affordable housing need 41 for its workforce and households in the very low, low, median and moderate income classifications. U) ............................................................................ 42 43 Policy 601.1.1 04 CD 44 Monroe County shall maintain land development regulations, in conjunction with the Permit 45 Allocation System, for apportioning future affordable housing development 46 E 47 48 BOCC Staff Report Page 25 of 40 File 42020-067 1 Packet Pg. 3508 S.1.c I Policy 601.1.2 0. 2 Monroe County shall co mtin e xpaffd its participation in Federal and State housing assistance E 3 programs to rehabilitate owner and rental housing for very low, low, median, and moderate 4 income residents by seeking grants, loans, and technical assistance in conjunction with the 5 Monroe County Housing Authority .mM --1;-234. 6 7 Policy 601.1.3 8 The Monroe County Land Authority shall maintain a list of buildable properties owned or 9 targeted for acquisition by the Land Authority which potentially could be donated or made 10 available for affordable housing. This list will be updated annually and made available to the 11 public. The guidelines established in Policies 601.1.10 and 601.1.11 shall be considered in the 12 formulation of this list. 13 0 14 Policy 601.1.4 15 All affordable housing projects which receive development benefits from Monroe County, 2 16 including but not limited to ROGO allocation award(s) reserved for affordable housing, 4- 17 maximum net density, or donations of land, shall be required to maintain the project as 0 18 affordable for a period of 99 years pursuant to deed restrictions or other mechanisms specified 19 in the Land Development Code, and administered by Monroe County or the Monroe County C 20 Housing Authority. z 21 22 Policy 601.1.5 CL 23 If Monroe County funding or County-donated land is to be used for any affordable housing 24 project, alternative sites shall be assessed according to the following guidelines: 25 1. The location of endangered species habitat. Sites within known, probable, or potentially 26 suitable threatened or endangered species habitat shall be avoided. 27 2. The environmental sensitivity of the vegetative habitat. The habitat sensitivity shall be 28 determined according to the ranking specified in the Environmental Design Criteria 29 section of the Land Development Code. Disturbed sites shall be selected, unless no 30 feasible alternative is available. 31 3. Sites located within V-Zones, on offshore islands, or within CBRS units shall be avoided. 2 32 4. The level of service provided in the vicinity for all public facilities. Areas which are at or 33 near capacity for one or more public facility should be avoided. 0 34 5. Proximity to employment and retail centers. Sites within five miles of employment and 35 retail centers shall be preferred. 36 37 Policy 601.1.6 � 38 Monroe County shall identify funding sources that could be made available to support 39 community-based non-profit organizations such as Habitat for Humanity in their efforts to W 40 provide adequate affordable housing. 41 v)i 42 Policy 601.1.7 43 Monroe County shall continue to participate in the State Housing Incentives Partnership 44 program as specified in the 1992 William Sadowski Affordable Housing Act. Monroe County 45 shall also continue to maintain a Local Housing Assistance Plan and Affordable Housing 46 Incentive Strategies as specified in the Act and recommended by the Monroe County E 47 Affordable Housing Advisory Committee. 48 BOCC Staff Report Page 26 of 40 File 42020-067 Packet Pg. 3509 I Policy 601.1.8 0. E 2 Monroe County shall allocate at least 20% of the annual ROGO allocation, or as may be 0 3 established by the State of Florida,pursuant to Administration Commission Rules,to affordable 4 housing units, as specified in Policy 101.3.3. Affordable housing eligible for this separate 5 allocation must meet the criteria established in the Land Development Code. -M..o.n..r..o.e.....C..o.u..n.iI ......................... ........... 6 rna award 300 additional b il i in , early -----------------------------------------------------u---d-n .0 7 evacuation units p 12",orkf(.)rce-A.ff(.)rdable..H u 101,3,� ........................................................................... ........................................................................................................................ .........o s i _6, Initiative 8 Workforce fnitia Lg� -ninistration Commission and the Florii1gi. MO -------------------------------------t-i _L _pLgLi-de-d--bv--ttie--Fl-or-ida--A.di------------------------------------------------------------------------------------ 9 D p > e..q111 �gnj Econornic pi�Etglj aximurn ........... .......................................................V 10 allocations identified in Rules-28-20., F,A.,C,., are restricted to rental_occLipLncv IL those who -------------------------------------------------------------------------------------------------------------------------------------------------------------- I I derive at least 70% of`their incorne as members of the workforce in Monroe Couwy and who ........................................................................................................................................................................................................................................................................................................................................................................... 12 i-neet the aff(.)rdabl_e_li_ousi i4inc(.)i-necTtei4(.)ries (o.)fftlieNMit(o.)nr(.)cC,(.)Lirytvl..,andDevelo rnentCoce. E ----------------------------- 13 and shall-be-reauired to evacuate in Phase I of' the 48-fir evacuation of' a pentjjn- nJor ....................................... ........... ........... .......... 0 14 hurricane. 15 2 16 Policy 601.1.9 0 4- 17 Monroe County shall maintain land development regulations which may include density 0 18 bonuses, impact fee waiver programs, and other possible regulations to encourage affordable 19 housing. 20 Z 21 Policy 601.1.10 0 22 The Land Authority may acquire land for affordable housing projects if they are deemed c. 0 23 appropriate and acceptable by the Land Authority as meeting the intent of: 24 1. the affordable housing provisions in the Land Authority's enabling legislation; 25 2. the goals, objectives and policies of this Plan; and 0 26 3.the land use designations specified on the Future Land Use Map and in the Monroe County 27 Land Development Regulations. 28 29 Policy 601.1.11 30 The Land Authority shall not list or acquire va---cant-------- lands as potential affordable housing sites ----31 if the lands exhibit any of the following characteristics: 2 0 32 1. Any portion of the land lies within a known,probable, or potentially suitable threatened or 33 endangered species habitat. 0 34 2. The land has a Tier designation other than Tier 111. 35 3. The land is located in a V-Zone, on an offshore island or within a CBRS unit. 36 37 Policy 601.1.12 0 38 Monroe County shall annually monitor the eligibility of the occupants of housing units which 39 have received special benefits, including but not limited to those issued under the affordable W 40 housing provisions specified in the Land Development Code or those issued through the Permit 41 Allocation System. If occupants no longer meet the eligibility criteria specified in the Plan and U) 42 in the Land Development Code, and their eligibility period has not expired, then Monroe 43 County may take any one or a combination of the following actions: 44 1. require the payment of impact fees, if they were waived; 45 2. proceed with remedial actions through the Department of Code Compliance, as a violation 46 of the Monroe County Code; E 47 3. take civil court action as authorized by statute, common law, or via agreement between an 48 applicant and the County; and/or BOCC Staff Report Page 27 of 40 File 42020-067 1 Packet Pg. 3510 S.1.c 1 4. require the sale or rental of the unit(s)to eligible occupants. 0. 2 0 3 Policy 601.1.13 4 Monroe County shall maintain land development regulations on inclusionary housing and shall 5 evaluate expanding the inclusionary housing requirements to include or address nonresidential 6 and transient development and redevelopment based on specific data and analysis. o 7 8 Objective 601.2 9 Monroe County shall adopt programs and policies to encourage housing of various types, sizes and 10 price ranges to meet the demands of current and future residents 11 � 12 Policy 601.2.1 13 Public-private partnerships shall be encouraged to improve coordination among participants 14 involved in housing production. In these efforts, the County will establish a comprehensive W 15 central depository for housing information located at the Monroe County Housing Authority 2 16 and Growth Management Division for the coordination and cooperation among public and 4- 17 private agencies which collect and use housing data. 0 18 19 Objective 601.3 20 Monroe County shall continue implementation efforts to eliminate substandard housing and to z 21 preserve, conserve and enhance the existing housing stock, including historic structures and sites. 22 CL 23 Policy 601.3.1 24 Monroe County shall coordinate with other County agencies to monitor housing conditions. 25 Standards for evaluation of the structural condition of the housing stock are summarized below: 26 Sound: Most housing units in this category are in good condition and have no visible 0i 27 defects. However, some structures with slight defects are also included. 28 29 Deteriorating: A housing unit in this category needs more repair than would be provided 30 in the course of regular maintenance, such as repainting. A housing unit is classified as 31 deteriorating when its deficiencies indicate a lack of proper upkeep. 2 32 4- 33 Dilapidated (Substandard): A housing unit in this category indicates that the unit can no 0 34 longer provide safe and adequate shelter or is of inadequate original construction including 35 being constructed below the minimum required elevation by FEMA or the County's 36 Floodplain Regulations. CL 37 � 38 Policy 601.3.2 39 The County Code Compliance Office and Building Department will enforce building code W 40 regulations and County ordinances governing the structural condition of the housing stock, to 41 ensure the provision of safe, decent and sanitary housing and stabilization of residential Ui 42 neighborhoods. 43 44 Policy 601.3.3 45 Monroe County shall encourage expanded use of U.S. Department of Housing and Urban 46 Development(HUD)rental rehabilitation programs by the Monroe County Housing Authority E 47 and State and Federal Floodplain or Hazard Mitigation programs to facilitate increased private BOCC Staff Report Page 28 of 40 File 42020-067 Packet Pg. 3511 S.1.c 1 reinvestment in housing by providing information, technical assistance in applications for 0. 2 federal and State funding, or provide local public funds for rehabilitation purposes. 0 3 4 Policy 601.3.4 5 Monroe County shall encourage identification and improvement of historically significant 6 housing through the coordination of public information programs defining benefits and o 7 improvement funding sources. 8 9 Objective 601.4 10 Monroe County shall maintain land development regulations which allow group homes and foster 11 care facilities licensed or funded by the Florida Department of Health (DOH), as well as subsidized 12 housing for elderly residents of the County, to be located in residential areas as appropriate. 13 0 14 Policy 601.4.1 15 Monroe County shall maintain land development regulations which permit group homes and 2 16 foster care facilities (homes of six or fewer residences which otherwise meet the definition of - 17 Community Residential Home pursuant to F.S. § 419.001(1)(a))licensed or funded by the DOH 0 18 in all land use categories which permit residential development where consistent with other 19 goals, objectives, and policies of this Comprehensive Plan. 20 z 21 Policy 601.4.2 0 22 The County shall identify and evaluate alternative strategies to expand subsidized housing c. 23 programs for elderly residents of Monroe County through coordination with the Monroe County 24 Housing Authority, and encourage their development by private, community-based non-profit, 25 or public entities, as well as public/private partnerships. 26 27 Objective 601.5 28 The County shall provide uniform and equitable treatment for persons and businesses displaced by 29 state and local government programs, consistent with F.S. § 421.55. 30 31 Policy 601.5.1 2 32 By May 1, 20172024, Monroe County shall adopt uniform relocation standards for displaced 4- 33 households. 0 34 35 i 36 IV. CONSISTENCY WITH THE MONROE COUNTY COMPREHENSIVE PLAN, THE 37 PRINCIPLES FOR GUIDING DEVELOPMENT,AND FLORIDA STATUTES. 0 38 39 A. The proposed amendment is consistent with the Goals, Objectives and Policies of the Monroe 40 County 2030 Comprehensive Plan. Specifically,it furthers: 41 NJ 42 GOAL 101: Monroe County shall manage future growth to enhance the quality of life, ensure the safety of 43 County residents and visitors, and protect valuable natural resources. N 44 N 45 Objective 101.2: As mandated by the State of Florida,pursuant to Section 380.0552,F.S.and Rule 28-20.140, 46 F.A.C., and to maintain the public health, safety, and welfare, Monroe County shall maintain a maximum 47 hurricane evacuation clearance time of 24 hours and will coordinate with the State Land Planning Agency BOCC Staff Report Page 29 of 40 File 42020-067 Packet Pg. 3512 S.1.c I relative to the 2012 Memorandum of Understanding that has been adopted between the County and all the a. 2 municipalities and the State agencies. c 3 4 Policy 101.2.1: Monroe County shall maintain a memorandum of understanding with the State Land Planning d_n 5 Agency, Division of Emergency Management, Marathon, Islamorada, Key West, Key Colony Beach, and 6 Layton to stipulate,based on professionally acceptable data and analysis,the input variables and assumptions, 7 including regional considerations, for utilizing the Florida Division of Emergency Management's (DEM) 8 Transportation Interface for Modeling Evacuations("TIME")Model to accurately depict evacuation clearance 9 times for the population of the Florida Keys. 10 11 Policy 101.2.2 12 Monroe County shall coordinate with all the municipalities, the State Land Planning Agency and Division of 13 Emergency Management to update the variables and assumptions for the evacuation clearance time modeling 14 and analyses of the build-out capacity of the Florida Keys Area of Critical State Concern based upon the 15 release of the decennial Census data. Pursuant to the 2012 completed hurricane evacuation clearance time 16 modeling by the State Land Planning Agency, which incorporates the 2010 Census data, the County may 17 allocate 10 years' worth of growth (197 x 10 = 1,970 allocations, 197 annual ROGO rate based on Rule 28- 0 le 18 20.140, F.A.C.) through the year 2023, while maintaining an evacuation clearance time of 24 hours. The 19 County will adopt_a slower rate of annual allocations for market rate development to extend the allocation ?: 20 timeframe to 2033 without exceeding the total of 1,970 allocations (see Policy 101.3.2). The County shall CD 21 reevaluate the annual ROGO allocation rate based on: 1) statutory changes for hurricane evacuation clearance C 22 time requirement standards; 2) new hurricane evacuation modeling by the State Land Planning Agency and 23 Division of Emergency Management; and 3) a new or revised memorandum of understanding with the State 24 Land Planning Agency,Division of Emergency Management,Marathon, Islamorada,Key West,Key Colony 25 Beach and Layton(see Policy 101.2.1). 26 27 Policy 101.2.4 28 In the event of a pending major hurricane (Category 3-5) Monroe County shall implement the following ca 29 staged/phased evacuation procedures to achieve and maintain an overall 24-hour hurricane evacuation 30 clearance time for the resident population. 31 1. Approximately 48 hours in advance of tropical storm winds, a mandatory evacuation of non-residents, 32 visitors, recreational vehicles (RVs), travel trailers, live-aboard vessels (transient and non-transient), 33 and military personnel from the Florida Keys shall be initiated. State parks and campgrounds should be 34 closed at this time or sooner and entry into the Florida Keys by non-residents should be strictly limited. 35 2. Approximately 36 hours in advance of tropical storm winds, a mandatory evacuation of mobile home 36 residents, special needs residents, and hospital and nursing home patients from the Keys shall be c 37 initiated. 38 3.Approximately 30 hours in advance of tropical storm winds,a mandatory phased evacuation of permanent 39 residents by evacuation zone (described below) shall be initiated. Existing evacuation zones are as CL 40 follows: 41 a) Zone 1 -Key West, Stock Island and Key Haven to Boca Chica Bridge (MM 1-6) 0 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 40-63) ; 44 d) Zone 4 - West end of Long Key Bridge to CR 905 and CR 905A intersection (MM 63-106.5 and v) 45 MM 1-9.5 of CR 905) r. 46 e) Zone 5 - 905A to, and including Ocean Reef(MM 106.5-126.5) t° 47 N 48 The actual sequence of the evacuation by zones will vary depending on the individual storm. The concepts 04 49 embodied in this staged evacuation procedures should be embodied in the appropriate County operational 50 Emergency Management Plans. 51 BOCC Staff Report Page 30 of 40 File 42020-067 Packet Pg. 3513 S.1.c I The evacuation plan shall be monitored and updated on an annual basis to reflect increases, decreases and or a. 2 shifts in population;particularly the resident and non-resident populations. c 3 4 For the purpose of implementing Policy 101.2.4, this Policy shall not increase the number of allocations to d_n 5 more than 197 residential units a year,except for affordable housing.Any increase in the number of allocations 6 shall be for affordable housing. 7 2 8 Objective 101.3: Monroe County shall regulate new residential development based upon the finite carrying 9 capacity of the natural and man-made systems and the growth capacity while maintaining a maximum 10 hurricane evacuation clearance time of 24 hours. 11 12 Policy 101.3.1: Monroe County shall maintain a Permit Allocation System for new residential developmentCD 13 known as the Residential Rate of Growth Ordinance (ROGO) System. The Permit Allocation System shall 14 limit the number of permits issued for new residential dwelling units. The ROGO allocation system shall 15 apply within the unincorporated area of the county, excluding areas within the county mainland and within 16 the Ocean Reef planned development(Future development in the Ocean Reef planned development is based 17 upon the December 2010 Ocean Reef Club Vested Development Rights Letter recognized and issued by the 0 19 18 Department of Community Affairs).New residential dwelling units included in the ROGO allocation system 19 include the following: affordable housing units; market rate dwelling units; mobile homes; and institutional ?: 20 residential units (except hospital rooms). C° 21 22 Vessels are expressly excluded from the allocation system, as the vessels do not occupy a distinct location, z 23 and therefore cannot be accounted for in the County's hurricane evacuation model. Under no circumstances 24 shall a vessel, including live-aboard vessels, or associated wet slips be transferred upland or converted to a CL 25 dwelling unit of any other type. Vessels or associated wet slips are not considered ROGO allocation awards, 26 and may not be used as the basis for any type of ROGO exemption or THE(Transfer of ROGO Exemption). tag 27 ca 28 ROGO Allocations for rooms, hotel or motel; campground spaces; transient residential units; and seasonal 29 residential units are subject to Policy 101.3.5. 30 > 31 Policy 101.3.2 32 The number of permits issued for residential dwelling units under the Rate of Growth Ordinance shall not 33 exceed a total of 1,970 new allocations for the time period of July 13, 2013 through July 12, 2026,plus any 34 available unused ROGO allocations from a previous ROGO year. A ROGO year means the twelve-month 35 period beginning on July 13.Market rate allocations shall not to exceed 126 residential units per year.Unused 36 allocations for market rate shall be available for Administrative Relief. 0 37 38 In 2012, pursuant to Rule 28-20.140, F.A.C., the Department of Economic Opportunity completed the 39 hurricane evacuation clearance time modeling task and found that with 10 years' worth of building permits, U� 40 the Florida Keys would be at a 24 hour evacuation clearance time. This creates challenges for State of Floridai 41 and Monroe County as there are 8,168 privately owned vacant parcels [3,979 Tier I; 393 Tier II,260 Tier III- c 42 A (SPA); 3,301 Tier III, and 235 No tier(ORCA, etc.)] and with 1,970 new allocations this may result in a W 43 balance of 6,198 privately held vacant parcels at risk of not obtaining permits in the future. In recognition of ; 44 the possibility that the inventory of vacant parcels exceeds the total number of allocations which the State will v) 45 allow the County to award, the County will consider adopting an extended timeframe for distribution of the 46 ROGO allocations through 2033 with committed financial support from its State and Federal partners. This 47 timeframe can provide a safety net to the County and provide additional time to implement land acquisition N 48 and other strategies to reduce the demand for ROGO allocations and help transition land into public � 49 ownership. 50 51 The County is actively engaged in acquisitions and is requesting its State and Federal partners for assistance 52 with implementing land acquisitions in Monroe County.The County will allocate the 1,970 new dwelling unit BOCC Staff Report Page 31 of 40 File 42020-067 Packet Pg. 3514 S.1.c I allocations over a 10 year timeframe.If substantial financial support is provided by July 12,2018,the County a. 2 will reevaluate the ROGO distribution allocation schedule and consider an extended timeframe for the c 3 distribution of market rate allocations (through a comprehensive plan amendment). Further, the State and �? 4 County shall develop a mutually agreeable position defending inverse condemnation cases and Bert J.Harris, d_n 5 Jr. Private Property Rights Protection Act cases, with the State having an active role both directly and 6 financially in the defense of such cases. 7 2 8 The County shall distribute ROGO allocations by ROGO year, as provided in the table below. 9 10 11 12 Policy 101.3.3: Monroe County shall allocate at least 20% of the annual allocation, or as may be established 13 by the State of Florida,pursuant to Administration Commission Rules, to affordable housing units as part of 14 ROGO.Any portion of the allocations not used for affordable housing shall be retained and be made available 15 for affordable housing from ROGO year to ROGO year. Affordable housing eligible for this separate c 16 allocation shall meet the criteria specified in Policy 601.1.4 and the Land Development Code,but shall not be 17 subject to the competitive Residential Permit Allocation and Point System in Policy 101.6.4. Any parcel 0 le 18 proposed for affordable housing shall not be located within an area designated as Tier I as set forth under Goal 19 105 or within a Tier III-A Special Protection Area as set forth in Policy 205.1.1. 20 CD 21 Notwithstanding the foregoing, and notwithstanding Policy 101.6.2. affordable housing ROGO allocations 22 may be awarded to Tier I or Tier III-A properties which meet all of the following criteria: z 23 1. The property contains an existing market rate dwelling unit that meets the criteria in LDC Section 138- 24 22(a) and is determined to be exempt from ROGO; c- 0 25 2. The proposed replacement affordable dwelling unit meets current Florida Building Code and is not a 26 mobile home; i 27 3. The proposed replacement dwelling unit shall be deed restricted for a period of at least 99 years as 28 affordable housing pursuant to the standards of the Land Development Code; and 29 4. The proposed site plan for the replacement affordable dwelling unit does not propose any additional 30 clearing of habitat. 31 32 Policy 101.3.5: Due to the limited number of allocations and the State's requirement that the County maintain 33 a maximum hurricane evacuation clearance time of 24 hours, Monroe County shall prohibit new transient 34 residential allocations for hotel or motel rooms, campground spaces, or spaces for parking a recreational 2 35 vehicle or travel trailer until May 2022. Lawfully established transient units shall be entitled to one unit for 36 each type of unit in existence before January 4, 1996 for use as a ROGO exemption. 0 37 38 Policy 101.7.1: Monroe County, the state,or other acquisition agency shall,upon a property owner's request, 39 offer to purchase the property for fair market value or permit the minimum reasonable economic use of the CL 40 property, if the property owner meets the following conditions: 41 1. they have been denied an allocation award for four successive years in the Residential (ROGO) or 0 42 Nonresidential(NROGO)Permit Allocation System; 43 2. their proposed development otherwise meets all applicable county, state, and federal regulations; ; 44 3. their allocation application has not been withdrawn; v) 45 4. they have complied with all the requirements of the Residential or Nonresidential Permit Allocation 46 System; and 47 5. they follow the procedures for administrative relief contained in the land development regulations. N 48 As used in this Policy, "minimum reasonable economic use" shall mean,as applied to any residentially zoned 49 parcel of record which was buildable immediately prior to the effective date of the Plan,no less than a single- 50 family residence. m 51 A purchase offer is the preferred option for administrative relief, if the subject permit is for development 52 located within: BOCC Staff Report Page 32 of 40 File 42020-067 Packet Pg. 3515 S.1.c 1 1. a designated Tier I area or within the Florida Forever (or its successor) targeted acquisition areas a. 2 (unless, after 60 days from the receipt of a complete application for administrative relief, it has 0 3 been determined no county, state or federal agency or any private entity is willing to offer to 4 purchase the parcel); 5 2. a designated Tier II or III-A (Special Protection Area); or, � 6 3. a designated Tier III area on a non-waterfront lot for affordable housing. 7 Refusal of the purchase offer by a property owner shall not be grounds for the granting of a ROGO or 8 NROGO allocation award. 9 10 Objective 101.17: Monroe County shall protect established rights of landowners affected by the provisions 11 of this Plan or the land development regulations; and, therefore adopts the following policies for the 12 determination of vested rights and beneficial use. 13 14 Policy 101.17.4: BENEFICIAL USE 15 1.It is the policy of Monroe County to ensure that neither the provisions of this Plan nor the LDC shall result 16 in an unconstitutional taking of private property.Accordingly,Monroe County shall adopt a beneficial use 17 procedure to provide a means to resolve a landowner's claim that a land development regulation or 0 le 18 comprehensive plan policy has had an unconstitutional effect on property in a nonjudicial forum. For the 19 purpose of this policy,beneficial use shall mean the minimum use of the property necessary to avoid the ?: 20 finding of a regulatory taking under current land use case law. CD 21 2. The relief to which an owner shall be entitled may be provided through the use of one or a combination of W 22 the following: 23 a) granting of a permit for development which shall be deducted from the Permit Allocation System; 24 b) granting of use of transferable development rights (TDRs); C- 0 25 c) Government purchase offer of all or a portion of the lots or parcels upon which there is no beneficial 26 use. This alternative shall be the preferred alternative when beneficial use has been deprived by i 27 application of Chapter 138 of the Land Development Code. This alternative shall be the preferred U 28 alternative for Tier I, II, or III-A(SPA) lands; ca 29 d) such other relief as the County may deem appropriate and adequate. 30 The relief granted shall be the minimum necessary to avoid the finding of a regulatory taking of the 31 property under state and federal law. With respect to the relief granted pursuant to this policy or Policy 32 101.7.1 (Administrative Relief), a purchase offer shall be the preferred form of relief for any land within 33 Tier I and Tier II, or Tier III-A (SPA). 34 3. Development approved pursuant to a beneficial use determination shall be consistent with all other 35 objectives and policies of the Plan and LDC unless specifically exempted from such requirements in the 36 final beneficial use determination. 0 37 4. This policy is not intended to provide relief related to regulations promulgated by agencies other than the 38 county or to provide relief for claims that are not cognizable in court at the time of application of this 39 policy. Further, the procedures established for this policy are not intended, nor do they create, a judicial U 40 cause of action. i 41 5. The land development regulations shall establish standards,procedures, and remedies for an administrative 0 42 determination of beneficial use. 43 44 Goal 601: Monroe County shall adopt programs and policies to facilitate access by residents to adequate and v) 45 affordable housing that is safe, decent, and structurally sound, and that meets the needs of the population NJ 46 based on type, tenure characteristics,unit size and individual preferences. 47 N 48 Objective 601.1: Monroe County shall implement the following defined policies to reduce estimated ci 49 affordable housing need for households in the very low, low, median and moderate income classifications. 50 51 Policy 601.1.4: All affordable housing projects which receive development benefits from Monroe County, 52 including but not limited to ROGO allocation award(s)reserved for affordable housing,maximum net density, BOCC Staff Report Page 33 of 40 File 42020-067 Packet Pg. 3516 S.1.c I or donations of land, shall be required to maintain the project as affordable for a period of 99 years pursuant a. 2 to deed restrictions or other mechanisms specified in the Land Development Code, and administered by c 3 Monroe County or the Monroe County Housing Authority. e 4 5 Policy 601.1.8: Monroe County shall allocate at least 20% of the annual ROGO allocation, or as may be 6 established by the State of Florida,pursuant to Administration Commission Rules,to affordable housing units, 7 as specified in Policy 101.3.3. Affordable housing eligible for this separate allocation must meet the criteria 8 established in the Land Development Code. 9 10 Policy 601.1.9: Monroe County shall maintain land development regulations which may include density 11 bonuses,impact fee waiver programs, and other possible regulations to encourage affordable housing. 12 13 Objective 601.3: Monroe County shall continue implementation efforts to eliminate substandard housing and 14 to preserve, conserve and enhance the existing housing stock, including historic structures and sites. 15 16 B. The amendment is consistent with the Principles for Guiding Development for the Florida Keys 2 17 Area, Section 380.0552(7), Florida Statutes. 4- 18 0 19 For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the ?: 20 principles for guiding development and any amendments to the principles, the principles shall be construed 21 as a whole and no specific provision shall be construed or applied in isolation from the other provisions. 22 23 (a) Strengthening local government capabilities for managing land use and development so that local CL 24 government is able to achieve these objectives without continuing the area of critical state concern 0 25 designation. e( 26 (b) Protecting shoreline and benthic resources, including mangroves, coral reef formations, seagrass beds, U� 27 wetlands, fish and wildlife, and their habitat. 0 28 (c) Protecting upland resources, tropical biological communities, freshwater wetlands, native tropical i 29 vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and 30 their habitat. 31 (d) Ensuring the maximum well-being of the Florida Keys and its citizens through sound economic 32 development. 33 (e) Limiting the adverse impacts of development on the quality of water throughout the Florida Keys. 34 (f) Enhancing natural scenic resources, promoting the aesthetic benefits of the natural environment, and 0 le 35 ensuring that development is compatible with the unique historic character of the Florida Keys. 36 (g) Protecting the historical heritage of the Florida Keys. c 37 (h) Protecting the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major CD 38 public investments,including: CL 39 U 40 1. The Florida Keys Aqueduct and water supply facilities; r� 41 2. Sewage collection, treatment, and disposal facilities; 42 3. Solid waste treatment, collection, and disposal facilities; 43 4. Key West Naval Air Station and other military facilities; 44 5. Transportation facilities; v)i 45 6. Federal parks,wildlife refuges, and marine sanctuaries; � 46 7. State parks,recreation facilities, aquatic preserves, and other publicly owned properties; 47 8. City electric service and the Florida Keys Electric Co-op; and C44 48 9. Other utilities, as appropriate. N 49 50 (1) Protecting and improving water quality by providing for the construction, operation, maintenance, and 51 replacement of stormwater management facilities; central sewage collection; treatment and disposal BOCC Staff Report Page 34 of 40 File 42020-067 Packet Pg. 3517 S.1.c I facilities; and the installation and proper operation and maintenance of onsite sewage treatment and a. 2 disposal systems. c 3 (j) Ensuring the improvement of nearshore water quality by requiring the construction and operation of �? 4 wastewater management facilities that meet the requirements of ss. 381.0065(4)(1) and 403.086(10), as d_n 5 applicable, and by directing growth to areas served by central wastewater treatment facilities through 6 permit allocation systems. 7 (k) Limiting the adverse impacts of public investments on the environmental resources of the Florida Keys. 8 (1) Making available adequate affordable housing for all sectors of the population of the Florida Keys. 9 (m)Providing adequate alternatives for the protection of public safety and welfare in the event of a natural or 10 manmade disaster and for a postdisaster reconstruction plan. 11 (n) Protecting the public health, safety, and welfare of the citizens of the Florida Keys and maintaining the 12 Florida Keys as a unique Florida resource. 13 14 Pursuant to Section 380.0552(7) Florida Statutes, the proposed amendment is not inconsistent with the 15 Principles for Guiding Development as a whole and is not inconsistent with any Principle. 16 W 2 17 C. The proposed amendment is consistent with the Part II of Chapter 163, Florida Statute (F.S.). 0 18 Specifically, the amendment furthers: 0 19 ?: 20 163.3161(4), F.S. —It is the intent of this act that local governments have the ability to preserve and enhance 21 present advantages; encourage the most appropriate use of land,water, and resources, consistent with the 22 public interest; overcome present handicaps; and deal effectively with future problems that may result 23 from the use and development of land within their jurisdictions. Through the process of comprehensive a. 24 planning, it is intended that units of local government can preserve, promote, protect, and improve the 25 public health,safety,comfort,good order,appearance,convenience,law enforcement and fire prevention, e(� 26 and general welfare; facilitate the adequate and efficient provision of transportation, water, sewerage, U 27 schools, parks, recreational facilities, housing, and other requirements and services; and conserve, 0 28 develop,utilize, and protect natural resources within their jurisdictions. i 29 30 163.3161(6), F.S. —It is the intent of this act that adopted comprehensive plans shall have the legal status set 31 out in this act and that no public or private development shall be permitted except in conformity with 32 comprehensive plans, or elements or portions thereof,prepared and adopted in conformity with this act. 33 34 163.3164(3),F.S.— "Affordable housing"has the same meaning as in s. 420.0004(3). 0 35 36 163.3177 1 F.S.—The comprehensive plan shall provide theprinciples, uidelines standards and strategies c ( )� p p p g g 37 for the orderly and balanced future economic, social,physical, environmental, and fiscal development of CD 38 the area that reflects community commitments to implement the plan and its elements. These principles ` I 39 and strategies shall guide future decisions in a consistent manner and shall contain programs and activities �cj 40 to ensure comprehensive plans are implemented. The sections of the comprehensive plan containing they 41 principles and strategies,generally provided as goals,objectives,and policies,shall describe how the local 0 42 government's programs, activities, and land development regulations will be initiated, modified, or 43 continued to implement the comprehensive plan in a consistent manner. It is not the intent of this part to 44 require the inclusion of implementing regulations in the comprehensive plan but rather to require v)i 45 identification of those programs, activities, and land development regulations that will be part of the 46 strategy for implementing the comprehensive plan and the principles that describe how the programs, 47 activities, and land development regulations will be carried out. The plan shall establish meaningful and 48 predictable standards for the use and development of land and provide meaningful guidelines for the 49 content of more detailed land development and use regulations. 50 E 51 163.3177(6)(f), F.S. — 1. A housing element consisting of principles, guidelines, standards, and strategies to 52 be followed in: BOCC Staff Report Page 35 of 40 File 42020-067 Packet Pg. 3518 S.1.c I a. The provision of housing for all current and anticipated future residents of the jurisdiction. a. 2 b. The elimination of substandard dwelling conditions. c 3 c. The structural and aesthetic improvement of existing housing. e 4 d.The provision of adequate sites for future housing,including affordable workforce housing as defined _ 5 in s. 380.0651(1)(h), housing for low-income, very low-income, and moderate-income families, 6 mobile homes,and group home facilities and foster care facilities,with supporting infrastructure and 7 public facilities. The element may include provisions that specifically address affordable housing for 2 8 persons 60 years of age or older.Real property that is conveyed to a local government for affordable 9 housing under this sub-subparagraph shall be disposed of by the local government pursuant to s. 10 125.379 or s. 166.0451. 11 e. Provision for relocation housing and identification of historically significant and other housing for 12 purposes of conservation,rehabilitation, or replacement. CD 13 f. The formulation of housing implementation programs. 14 g. The creation or preservation of affordable housing to minimize the need for additional local services 15 and avoid the concentration of affordable housing units only in specific areas of the jurisdiction. c 16 2. The principles, guidelines, standards, and strategies of the housing element must be based on data and 17 analysis prepared on housing needs,which shall include the number and distribution of dwelling units by 0 le 18 type, tenure, age,rent,value, monthly cost of owner-occupied units, and rent or cost to income ratio, and 19 shall show the number of dwelling units that are substandard. The data and analysis shall also include the ?: 20 methodology used to estimate the condition of housing, a projection of the anticipated number of CD 21 households by size, income range, and age of residents derived from the population projections, and the 22 minimum housing need of the current and anticipated future residents of the jurisdiction. z 23 3. The housing element must express principles, guidelines, standards, and strategies that reflect, as 24 needed,the creation and preservation of affordable housing for all current and anticipated future residents c- 0 25 of the jurisdiction, elimination of substandard housing conditions, adequate sites, and distribution of 26 housing for a range of incomes and types,including mobile and manufactured homes. The element must U� 27 provide for specific programs and actions to partner with private and nonprofit sectors to address housing U 28 needs in the jurisdiction, streamline the permitting process, and minimize costs and delays for affordable 29 housing, establish standards to address the quality of housing, stabilization of neighborhoods, and 30 identification and improvement of historically significant housing. 31 32 163.3201,F.S.—Relationship of comprehensive plan to exercise of land development regulatory authority.- 33 It is the intent of this act that adopted comprehensive plans or elements thereof shall be implemented, in 34 part, by the adoption and enforcement of appropriate local regulations on the development of lands and 35 waters within an area.It is the intent of this act that the adoption and enforcement by a governing body of 36 regulations for the development of land or the adoption and enforcement by a governing body of a land 0 37 development code for an area shall be based on,be related to, and be a means of implementation for an 38 adopted comprehensive plan as required by this act. 39 CL 40 420.0004, F.S.—Definitions.—As used in this part,unless the context otherwise indicates: Ui 41 (1) "Adjusted for family size" means adjusted in a manner which results in an income eligibility level 0 42 which is lower for households with fewer than four people,or higher for households with more than four W 43 people, than the base income eligibility determined as provided in subsection (9), subsection (11), 44 subsection(12),or subsection(17),based upon a formula as established by the United States Department v) 45 of Housing and Urban Development. 46 (2) "Adjusted gross income"means all wages, assets, regular cash or noncash contributions or gifts from 47 persons outside the household, and such other resources and benefits as may be determined to be income N CD 48 by the United States Department of Housing and Urban Development, adjusted for family size, less N 49 deductions allowable under s. 62 of the Internal Revenue Code. 50 (3) "Affordable"means that monthly rents or monthly mortgage payments including taxes,insurance,and 51 utilities do not exceed 30 percent of that amount which represents the percentage of the median adjusted BOCC Staff Report Page 36 of 40 File 42020-067 Packet Pg. 3519 S.1.c I gross annual income for the households as indicated in subsection (9), subsection (11), subsection (12), a. 2 or subsection (17). c 3 (4) "Corporation"means the Florida Housing Finance Corporation. 4 (5) "Community-based organization" or"nonprofit organization"means a private corporation organized d_n 5 under chapter 617 to assist in the provision of housing and related services on a not-for-profit basis and 6 which is acceptable to federal and state agencies and financial institutions as a sponsor of low-income 7 housing. 2 8 (6) "Department"means the Department of Economic Opportunity. 9 (7) "Disabling condition" means a diagnosable substance abuse disorder, serious mental illness, 10 developmental disability, or chronic physical illness or disability, or the co-occurrence of two or more of 11 these conditions, and a determination that the condition is: 12 (a) Expected to be of long-continued and indefinite duration; and 13 (b) Not expected to impair the ability of the person with special needs to live independently with 14 appropriate supports. 15 (8) "Elderly"describes persons 62 years of age or older. c 16 (9) "Extremely-low-income persons"means one or more natural persons or a family whose total annual 17 household income does not exceed 30 percent of the median annual adjusted gross income for households 0 le 18 within the state. The Florida Housing Finance Corporation may adjust this amount annually by rule to 19 provide that in lower income counties, extremely low income may exceed 30 percent of area median ?: 20 income and that in higher income counties, extremely low income may be less than 30 percent of area CD 21 median income. 22 (10) "Local public body"means any county,municipality, or other political subdivision, or any housing z 23 authority as provided by chapter 421 which is eligible to sponsor or develop housingfor farmworkers e= 24 and very-low-income and low-income persons within its jurisdiction. 0. 25 (11)"Low-income persons"means one or more natural persons or a family,the total annual adjusted gross 26 household income of which does not exceed 80 percent of the median annual adjusted gross income for U� 27 households within the state, or 80 percent of the median annual adjusted gross income for households U 28 within the metropolitan statistical area(MSA) or, if not within an MSA, within the county in which the 29 person or family resides,whichever is greater. 30 (12) "Moderate-income persons"means one or more natural persons or a family,the total annual adjusted 31 gross household income of which is less than 120 percent of the median annual adjusted gross income for 32 households within the state, or 120 percent of the median annual adjusted gross income for households 33 within the metropolitan statistical area(MSA) or, if not within an MSA, within the county in which the 34 person or family resides,whichever is greater. 35 (13) "Person with special needs"means an adult person requiring independent living services in order to 36 maintain housing or develop independent living skills and who has a disabling condition; a young adult 0 37 formerly in foster care who is eligible for services under s. 409.1451(5); a survivor of domestic violence 38 as defined in s. 741.28; or a person receiving benefits under the Social Security Disability Insurance 39 (SSDI)program or the Supplemental Security Income(SSI)program or from veterans' disability benefits. U� 40 (14)"Student"means any person not living with his or her parent or guardian who is eligible to be claimedi 41 by his or her parent or guardian as a dependent under the federal income tax code and who is enrolled on c 42 at least a half-time basis in a secondary school, career center, community college, college,or university. W 43 (15) "Substandard"means: ; 44 (a) Any unit lacking complete plumbing or sanitary facilities for the exclusive use of the occupants; v) 45 (b)A unit which is in violation of one or more major sections of an applicable housing code and where 46 such violation poses a serious threat to the health of the occupant; or 47 (c)A unit that has been declared unfit for human habitation but that could be rehabilitated for less than N 48 50 percent of the property value. N 49 (16) "Substantial rehabilitation" means repair or restoration of a dwelling unit where the value of such 50 repair or restoration exceeds 40 percent of the value of the dwelling. 51 (17) "Very-low-income persons"means one or more natural persons or a family,not including students, 52 the total annual adjusted gross household income of which does not exceed 50 percent of the median BOCC Staff Report Page 37 of 40 File 42020-067 Packet Pg. 3520 S.1.c I annual adjusted gross income for households within the state,or 50 percent of the median annual adjusted a. 2 gross income for households within the metropolitan statistical area (MSA) or, if not within an MSA, c 3 within the county in which the person or family resides,whichever is greater. e 4 N 5 420.502, F.S.—Legislative findings.- 6 (8)(b) It is necessary to create a state housing finance strategy to provide affordable workforce housing 7 opportunities to essential services personnel in areas of critical state concern designated under s. 380.05, 8 for which the Legislature has declared its intent to provide affordable housing, and areas that were 9 designated as areas of critical state concern for at least 20 consecutive years before removal of the 10 designation.The lack of affordable workforce housing has been exacerbated by the dwindling availability 11 of developable land, environmental constraints,rising construction and insurance costs, and the shortage 12 of lower-cost housing units.As this state's population continues to grow,essential services personnel vital 13 to the economies of areas of critical state concern are unable to live in the communities where they work, 14 creating transportation congestion and hindering their quality of life and community engagement. 15 16 420.503, F.S.-Definitions.- 17 (18) "Essential services personnel" means natural persons or families whose total annual household 0 18 income is at or below 120 percent of the area median income, adjusted for household size, and at least 0 19 one of whom is employed as police or fire personnel, a child care worker, a teacher or other education CD 20 personnel,health care personnel, a public employee,or a service worker. CD 21 C 22 420.5095, F.S. Community Workforce Housing Innovation Pilot Program.— z 23 (1) The Legislature finds and declares that recent rapid increases in the median purchase price of a home CL 24 and the cost of rental housing have far outstripped the increases in median income in the state,preventing 0 25 essential services personnel from living in the communities where they serve and thereby creating the eC� 26 need for innovative solutions for the provision of housing opportunities for essential services personnel. 27 (2) The Community Workforce Housing Innovation Pilot Program is created to provide affordable rental U 28 and home ownership community workforce housing for essential services personnel affected by the high cp 29 cost of housing, using regulatory incentives and state and local funds to promote local public-private 30 partnerships and leverage government and private resources. 31 (3) For purposes of this section, the term: a, 32 (a) "Workforce housing" means housing affordable to natural persons or families whose total annual 33 household income does not exceed 140 percent of the area median income, adjusted for household size, a, 34 or 150 percent of area median income, adjusted for household size, in areas of critical state concern 0 35 designated under s.380.05,for which the Legislature has declared its intent to provide affordable housing, 36 and areas that were designated as areas of critical state concern for at least 20 consecutive years prior to c 37 removal of the designation. c, 38 39 125.01055,F.S.—Notwithstanding any other provision of law, a county may adopt and maintain in effect any U 40 law,ordinance,rule,or other measure that is adopted for the purpose of increasing the supply of affordable 41 housing using land use mechanisms such as inclusionary housing ordinances. 0 42 43 V. PROCESS 44 i 45 Comprehensive Plan Amendments may be proposed by the Board of County Commissioners, the 46 Planning Commission, the Director of Planning, or the owner or other person having a contractual ' 47 interest in property to be affected by a proposed amendment. The Director of Planning shall review and 48 process applications as they are received and pass them onto the Development Review Committee and 49 the Planning Commission. E 50 BOCC Staff Report Page 38 of 40 File 42020-067 Packet Pg. 3521 S.1.c I The Planning Commission shall hold at least one public hearing. The Planning Commission shall review 0. 2 the application, the reports and recommendations of the Department of Planning & Environmental 0 3 Resources and the Development Review Committee and the testimony given at the public hearing. The 4 Planning Commission shall submit its recommendations and findings to the Board of County 5 Commissioners (BOCC). The BOCC holds a public hearing to consider the transmittal of the proposed 6 comprehensive plan amendment, and considers the staff report, staff recommendation, and the testimony o 7 given at the public hearing. The BOCC may or may not recommend transmittal to the State Land 8 Planning Agency. The amendment is transmitted to State Land Planning Agency, which then reviews 9 the proposal and issues an Objections, Recommendations and Comments (ORC) Report. Upon receipt 10 of the ORC report, the County has 180 days to adopt the amendments, adopt the amendments with 11 changes or not adopt the amendment. 12 13 VI. STAFF RECOMMENDATION 14 15 Based on the BOCC direction to staff on February 19, 2020 to start the process to accept the 300 2 16 workforce housing units and on July 15, 2020, to accept the 300 workforce housing early 17 evacuation unit building permit allocations to be used in exchange for existing affordable 0 18 allocations at multifamily developments (for developers that agree to the early evacuation 19 restriction) and the affordable housing allocations returned to the County (returned in the 20 exchange) be set aside and banked for takings cases (bank them within an administrative relief z 21 pool), staff recommends approval. 22 23 The BOCC's policy direction limits the use of the 300 workforce housing early evacuation unit building 24 permit allocations for only the exchange of affordable allocations and not for the development of new 25 (not approved or built) units, thereby not increasing current development potential. As such, the 26 workforce housing early evacuation unit building permit allocations would be used at sites with existing aai 27 approvals/dwelling units and require early evacuation of the occupants,but should not otherwise change 28 the development on the site or countywide. The BOCC direction of making this program for the 29 exchange of allocations, maintains the County's focus on redevelopment and infill by swapping 30 allocations types and including additional requirements (ex: early evacuation) on existing approvals and 31 not incentivizing new development or encroachments into habitat with new development. 2 32 4- 33 Further, the BOCC policy direction included that the affordable allocations returned to the County in 0 34 exchange for workforce housing early evacuation unit allocations shall be banked to resolve takings. 35 Banking these units may provide the County with an option to address potential liability for future 36 inverse condemnation cases and Bert J. Harris, Jr. Private Property Rights Protection Act cases for the CL 37 undeveloped,privately-owned parcels in the County which far exceed the remaining permit allocations. 38 0 39 Staff does not recommend approval of the general acceptance of the 300 workforce housing early 40 evacuation unit building permit allocations, without the criteria and provisions explained above and 41 included in proposed language as identified in Section III (proposed comprehensive plan text v)i 42 amendments) of this Report. 43 cv 44 VIII.EXHIBITS 45 46 1. May 2, 2018, Governor Rick Scott press release outlining an initiative to the Florida Department 47 of Economic Opportunity ("DEO")for a Keys Workforce Housing Initiative. BOCC Staff Report Page 39 of 40 File 42020-067 Packet Pg. 3522 S.1.c 1 2. DEO provided preliminary draft language based on the minimum requirements established in the 0. 2 Keys Workforce Housing Initiative to use as a starting point. c 3 3. County Takings Claims Bill Whitepaper 4 4. Administrative Law Judge recommended order recommending approval of Marathon,Key West, 5 and Islamorada's respective ordinances accepting the 300 ROGOs under the Workforce Housing 6 Initiative. o 7 5. Islamorada (Ordinance 19-03) Comprehensive Plan amendment to accept the 300 Workforce 8 Housing units 9 6. Marathon (Ordinance 2018-09) Comprehensive Plan amendment to accept the 300 Workforce 10 Housing units 11 7. Key West (Ordinance 19-06) Comprehensive Plan amendment to accept the 300 Workforce 12 Housing units 13 8. Table of Summary of County Actions on 300 Workforce early evacuation units 14 9. DEO Final Order DEO-20-032 upholding the three City amendments. 15 2 0 4- 0 CL i 2 0 4- 0 CL i 0 i cv CD cv U BOCC Staff Report Page 40 of 40 File 42020-067 Packet Pg. 3523 S.1.d 1 z N 3 4 5 6 7 MONROE COUNTY,FLORIDA 8 BOARD OF COUNTY COMMISSIONERS 9 RESOLUTION NO. 041 -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 2 15 MONROE COUNTY 2030 COMPREHENSIVE PLAN AMENDING THE 16 FUTURE LAND USE ELEMENT AND THE HOUSING ELEMENT TO 17 ESTABLISH A NEW BUILDING PERMIT ALLOCATION CATEGORY 18 TO ACCEPT AND AWARD 300 WORKFORCE HOUSING EARLY 19 EVACUATION UNIT BUILDING PERMIT ALLOCATIONS PURSUANT 0 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 E 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 E 26 CREATING NEW POLICY 101.3.12 TO ESTABLISH THE SPECIFIC 27 WORKFORCE INITIATIVE REQUIREMENTS; PROVIDING FOR y 28 SEVERABILITY; PROVIDING FOR REPEAL OF CONFLICTING 0. 29 PROVISIONS;PROVIDING FOR TRANSMITTAL TO THE STATE LAND 0. 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 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(l)(c), F.S., for review and comment on a proposed amendment to the Monroe County 41 Year 2030 Comprehensive Plan as described above; and y 42 43 WHEREAS,the Monroe County Planning Commission and the Monroe County Board of 44 County Commissioners support the requested text amendment; 45 Resolution No.041-2021 Page 1 of 3 File 2020-067 Packet Pg. 3524 S.1.d 46 NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY 47 COMMISSIONERS OF MONROE COUNTY,FLORIDA: N 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 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. 2 60 61 Section 4. The Monroe County staff is given authority to prepare and submit the required 62 transmittal letter and supporting documents for the proposed amendment in 63 accordance with the requirements of Section 163.3184(4),Florida Statutes. W 64 65 Section 5. C nstruetion 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 E 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 E 71 resolution shall be liberally construed and enforced in favor of Monroe County to 72 effectuate its public purpose(s)and policy(ies)of the County,and shall be deferred y 73 in favor of the BOCC and such construction and interpretation shall be entitled to 0. 74 eat weight in adversarial administrative proceedings, o great gh p gs, at trial,bankruptcy, and on 0. 75 appeal. 76 77 Section 6. No Liability.Monroe County expressly reserves and in no way shall be deemed to 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 CD `V 82 Section 7. Severahility. 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 88 part(s)or portion(s)thereof, shall continue unimpaired in full force and effect. 89 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. c Resolution No.041-2021 Page 2 of 3 File 2020-067 Packet Pg. 3525 S.1.d 0. 92 0 93 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, N 94 Florida,at a regular meeting held on the 20th day of January 2021. 95 96 Mayor Michelle Coldiron Yes o 97 Mayor Pro Tern David Rice Yes 98 Commissioner Craig Cates Yes 99 Commissioner Eddie Martinez Yes 100 Commissioner Mike Forster Yes 101 102 103 0 104 BOARD OF COUNTY COMMIS IONERS 105 OF MONR E TY FLOR� 2 106 �a 1 ' BY: 1 MAYOR MICHELLE COLDIRON 11 AAQNROE CO ATTORNEY M1p APP TO FORM ' LU ---� 112 A'* KE ADOK, LERK PEMR MORMS 113 AWSTANT COUNTY ATTORNEY Date: _ 12512, m 114 AS DEPUTY CLERK -" 115 116 117 w Ch 0 0. 0 0 J C Qr �' CV > W � 0 tJ tJ U Resolution No.041-2021 Page 3 of 3 File 2020-067 Packet Pg. 3526 S.1.d Exhibit A to Transmittal Resolution 1 0 2 3 v, 4 5 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 v 13 COUNTY 2030 COMPREHENSIVE PLAN AMENDING THE FUTURE 14 LAND USE ELEMENT AND THE HOUSING ELEMENT TO ESTABLISH i5 A NEW BUILDING PERMIT ALLOCATION CATEGORY TO ACCEPT 16 AND AWARD 300 WORKFORCE HOUSING EARLY EVACUATION 17 UNIT BUILDING PERMIT ALLOCATIONS PURSUANT TO THE o 18 WORKFORCE-AFFORDABLE HOUSING INITIATIVE (WORKFORCE CD 19 INITIATIVE) AUTHORIZED BY THE FLORIDA ADMINISTRATION W 20 COMMISSION AND THE FLORIDA DEPARTMENT ECONOMIC 21 OPPORTUNITY BY AMENDING AS WELL AS CLARIFYING POLICIES 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 28 SECRETARY OF STATE; PROVIDING FOR AMENDMENT TO AND 0 29 INCORPORATION IN THE MONROE COUNTY COMPREHENSIVE0. 30 PLAN; PROVIDING FOR AN EFFECTIVE DATE. (FILE 2020-067) 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 35 health, safety,and welfare of the County's citizens; and i 36 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 Kc_vs can be safely evacuated," [380.0552(2)0), 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 43 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 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. 3527 S.1.d Exhibit A to Transmittal Resolution 0. 1 0 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 1; and 12 13 WHEREAS,the Florida Keys face the quadruple impact of high land values, land limited 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 16 17 WHEREAS, the need to protect and preserve an adequate inventory of o 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 W 20 housing units throughout the Florida Keys; and 21 LU 22 WHEREAS, on September 19, 2018, the BOCC directed County staff to draft proposed o 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 y 0 29 WHEREAS, on January 22, 2020, the BOCC directed staff to prepare an agenda item to 0. 0 30 discuss and provide direction on whether to direct staff to process Comprehensive Plan and Land 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 I of the Hurricane Evacuation 34 model; and 35 36 WHEREAS,on February 19,2020,the BOCC discussed whether to direct staff to process 37 a comprehensive plan and land development code amendment to: 1) move a portion of the 378CD 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 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 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. 3528 S.1.d Exhibit A to Transmittal Resolution 0. 1 used in exchange for existing affordable allocations at multifamily developments (for developers o 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 0 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, N 13 2020; and 14 15 WHEREAS, at a regularly scheduled meeting held on October 28, 2020 the Monroe 16 County Planning Commission held a public hearing for the purpose of considering the proposed 17 amendment and provided for public comment; and o 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 29 provided for public comment and public participation in accordance with the requirements of state 0. 30 law and the procedures adopted for public participation in the planning process; and 31 32 WHEREAS, at the January 20, 2021, public hearing, the BOCC voted to transmit the 33 proposed amendments to I)EO to review the proposal, with a modification to Policy 101.3.12 to 34 eliminate the requirement for a development agreement: instead requiring a resolution approving 35 a contract: and 36 37 WHEREAS,at the January 20,2021,public hearing,the BOCC adopted Resolution - 38 2021, transmitting the proposed text amendment to the State Land Planning Agency; and 39 40 WHEREAS, the State Land Planning Agency reviewed the amendment and issued an 41 Objections, Recommendations and Comments (ORC) report, received by the County 42 on ; and 43 44 WHEREAS, the ORC report stated ; and 45 46 WHEREAS, the County has 180 days from the date of receipt of the ORC to adopt the 47 proposed amendment, adopt the amendment with changes or not adopt the amendment; and Ordinance No. -2021 Page 3 of 19 File 2020-067 Packet Pg. 3529 S.1.d Exhibit A to Transmittal Resolution 1 c 2 WHEREAS, at a regularly scheduled meeting on , the BOCC held a 3 public hearing to consider adoption of the proposed Comprehensive Plan text amendment; and _ 4 5 WHEREAS, Monroe County policies and regulations adopted in the Monroe County 6 Comprehensive Plan and Land Development Code are to maintain public health, safety, and 7 welfare of the citizens of the Florida Keys and to strengthen our local government capability to 8 manage land use and development; and > 9 10 WHEREAS, based upon the documentation submitted and information provided in the 11 accompanying staff report, the Monroe County Board of County Commissioners makes the 12 following Conclusions of Law: 13 1. The proposed amendment is consistent with the Goals, Objectives and Policies of the 14 Monroe County Year 2030 Comprehensive Plan;and w 15 2. The proposed amendment is consistent with the Principles for Guiding Development for 16 the Florida Keys Area of Critical State Concern, Sec. 380.0552(7), F.S.; and -19 17 3. The proposed amendment is consistent with Part II of Chapter 163, Florida Statute o 18 CD 19 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY W 20 COMMISSIONERS OF MONROE COUNTY, FLORIDA: 21 22 Section 1. The Monroe County Comprehensive Plan is hereby amended as follows: o 23 Proposed Amendment: deletions are stfioke thFogi; additions are shown in underlined. 24 25 Objective 101.2 26 As mandated by the State of Florida, pursuant to Section 380.0552, F.S. and Rule 28-20.140, y 27 F.A.C., and to maintain the public health, safety, and welfare,Monroe County shall maintain 0. 28 a maximum hurricane evacuation clearance time of 24 hours and will coordinate with the State 0. 29 Land Planning Agency relative to the 2012 Memorandum of Understanding that has been 30 adopted between the County and all the municipalities and the State agencies. 31 32 Policy 101.2.1 33 Monroe County shall maintain a memorandum of understanding with the State Land 34 Planning Agency, Division of Emergency Management, Marathon, Islamorada, Key 35 West, Key Colony Beach, and Layton to stipulate, based on professionally acceptable 36 data and analysis,the input variables and assumptions, including regional considerations, 37 for utilizing the Florida Division of Emergency Management's (DEM) Transportation 38 Interface for Modeling Evacuations ("TIME") Model to accurately depict evacuation 39 clearance times for the population of the Florida Keys. 40 y 41 Policy 101.2.2 42 Monroe County shall coordinate with all the municipalities, the State Land Planning 43 Agency and Division of Emergency Management to update the variables and assumptions 44 for the evacuation clearance time modeling and analyses of the build-out capacity of the 45 Florida Keys Area of Critical State Concern based upon the release of the decennial Ordinance No._-2021 Page 4 of 19 File 2020-067 Packet Pg. 3530 S.1.d Exhibit A to Transmittal Resolution 0. 1 Census data. Pursuant to the 2012 completed hurricane evacuation clearance time o 2 modeling by the State Land Planning Agency, which incorporates the 2010 Census data, 3 the County may allocate 10 years' worth of growth (197 x 10 = 1,970 allocations, 197 4 annual ROGO rate based on Rule 28-20.140, F.A.C.) through the year 2023, while 5 maintaining an evacuation clearance time of 24 hours. The County-WiN adopted a slower 6 rate of annual allocations for market rate development to extend the allocation timeframe 7 to 20262033 without exceeding the total of 1,970 allocations (see Policy 101.3.2). The 8 County shall reevaluate the annual ROGO allocation rate based on: 1) statutory changes 9 for hurricane evacuation clearance time requirement standards; 2) new hurricane 10 evacuation modeling by the State Land Planning Agency and Division of Emergency 11 Management;and 3)a new or revised memorandum of understanding with the State Land 12 Planning Agency, Division of Emergency Management, Marathon, Islamorada, Key 13 West,Key Colony Beach and Layton (see Policy 101.2.1). o 14 15 Notwithstanding the foregoing and pursuant to Policies 101.3.2 101.3.3 and 101.3.12. 16 Monroe County shall establish a new allocation category to accept and award 300 17 workforce housing early evacuation unit building permit allocations pursuant to the 18 Workforce-Affordable Housing Initiative Policy 101.3.12 Workforce Initiative). These 19 allocations are in addition to the maximum allocations identified in Rules 28-20 F.A.C.. W 20 and shall be required to evacuate in Phase I of the 48-hr evacuation of a Pending major 21 hurricane. 22 0 23 Policy 101.2.3 24 The County will consider capital improvements based upon the need for improved 25 hurricane evacuation clearance times. The County will coordinate with the FDOT, the 26 state agency which maintains U.S.1, to ensure transportation projects that improve 27 clearance times are prioritized. 28 29 Policy 101.2.4 0. 30 In the event of a pending major hurricane (Category 3-5) Monroe County shall 31 implement the following staged/phased evacuation procedures to achieve and maintain 32 an overall 24-hour hurricane evacuation clearance time for the resident population. 33 1. Approximately 48 hours in advance of tropical storm winds, a mandatory evacuation y 34 of non-residents, visitors, recreational vehicles (RVs), travel trailers, live-aboard 35 vessels(transient and non-transient),ai+d military personnel and units approved, and i 36 deed restricted as workforce housing early evacuation units from the Florida Keys 37 shall be initiated.State parks and campgrounds should be closed at this time or sooner 38 and entry into the Florida Keys by non-residents should be strictly limited. 39 2. Approximately 36 hours in advance of tropical storm winds, a mandatory evacuation 40 of mobile home residents, special needs residents, and hospital and nursing home 41 patients from the Keys shall be initiated. 42 3. Approximately 30 hours in advance of tropical storm winds, a mandatory phased 43 evacuation of permanent residents by evacuation zone (described below) shall be 44 initiated. Existing evacuation zones are as follows: 45 a)Zone 1 -Key West, Stock Island and Key Haven to Boca Chica Bridge (MM 1-6) 46 b)Zone 2 - Boca Chica Bridge to West end of 7-mile Bridge (MM 6-40) 0 0 Ordinance No._-2021 Page 5 of 19 File 2020-067 Packet Pg. 3531 S.1.d Exhibit A to Transmittal Resolution 1 c) Zone 3 - West end of 7-Mile Bridge to West end of Long Key Bridge (MM 40- 2 63) 3 d)Zone 4-West end of Long Key Bridge to CR 905 and CR 905A intersection(MM 4 63-106.5 and MM 1-9.5 of CR 905) 5 e)Zone 5 -905A to, and including Ocean Reef(MM 106.5-126.5) 6 7 The actual sequence of the evacuation by zones will vary depending on the individual 8 storm. The concepts embodied in this staged evacuation procedures should be embodied 9 in the appropriate County operational Emergency Management Plans. 10 11 The evacuation plan shall be monitored and updated on an annual basis to reflect 12 increases,decreases and or shifts in population;particularly the resident and non-resident 13 populations. o 14 15 For the purpose of implementing Policy 101.2.4,this Policy shall not increase the number 16 of allocations to more than 197 residential units a year, except for affordable housing. le 17 Any increase in the number of allocations shall be for affordable housing.Monroe Count 18 hereby accepts 300 workforce(affordable) nit buildingPerin-ItCD 19 allocations pursuant to the Workforce-Affordable Housin = Initiative Policy 101.3.12 W 20 Workforce It'111-ty-I authorized by the Florida Administration Commission and the LU 21 Florida De artment Economic U ortunit ., These allocations are in addition to the 22 maximum allocations identified in Rules 28-20. F.A.C. shall be restricted to rental o 23 occu)ancv for those W110 derive at least 70%of their income as members of the workforce 24 in Monroe Cou n(y and who meet the affordable housin 7 income cate ygories of the Monroe 25 Count • Land Development Code. The allocations shall be required to evacuate in Phase 26 l of the 48-hr evacuation of a .ending nending major hurricane. No new additional residential 27 dwelling unit allocations shall be authorized within the Phase 1 of the 48-hr evacuation 28 unless approved and provided by the Florida Administration Commission and the Florida 29 De artment Economic 0 pportunit after review of hurricane evacuation model in =results 30 by the State Land PlanningAgency and the Division of' Emergency Management of 0. 31 available evacuation caDacity and a review of the level of service and available ca achy o 32 for all public facilities. 33 34 Objective 101.3 35 Monroe County shall regulate new residential development based upon the finite carrying i 36 capacity of the natural and man-made systems and the growth capacity while maintaining a 37 maximum hurricane evacuation clearance time of 24 hours. 38 39 Policy 101.3.1 40 Monroe County shall maintain a Permit Allocation System for new residential 41 development known as the Residential Rate of Growth Ordinance (ROGO) System. The y 42 Permit Allocation System shall limit the number of permits issued for new residential 43 dwelling units. The ROGO allocation system shall apply within the unincorporated area ca 44 of the county, excluding areas within the county mainland and within the Ocean Reef 45 planned development (Future development in the Ocean Reef planned development is 46 based upon the December 2010 Ocean Reef Club Vested Development Rights Letter 47 recognized and issued by the Department of Community Affairs). New residential Ordinance No. -2021 Page 6 of 19 File 2020-067 Packet Pg. 3532 S.1.d Exhibit A to Transmittal Resolution 1 dwelling units included in the ROGO allocation system include the following. affordable 2 housing units; market rate dwelling units; mobile homes; arW institutional residential 3 units [except hospital rooms}and workforce housing early evacuation units. 4 5 Vessels are expressly excluded from the allocation system, as the vessels do not occupy 6 a distinct location, and therefore cannot be accounted for in the County's hurricane 7 evacuation model. Under no circumstances shall a vessel, including live-aboard vessels, 8 or associated wet slips be transferred upland or converted to a dwelling unit of any other 9 type. Vessels or associated wet slips are not considered ROGO allocation awards, and 10 may not be used as the basis for any type of ROGO exemption or THE(Transfer of ROGO 11 Exemption). 12 13 ROGO Allocations for rooms, hotel or motel; campground spaces; transient residential o 14 units;and seasonal residential units are subject to Policy 101.3.5. W 1s 16 Policy 101.3.2 17 The number of permits issued for residential dwelling units under the Rate of Growth o 18 Ordinance shall not exceed a total of 1,970 new allocations for the time period of July 13, 19 2013 through July 12,2026,plus any available unused ROGO allocations from a previous W 20 ROGO year and 300 workforce lousing early evacuation unit buildingperinit allocations 21 authorized by the Florida Administration Commission and the Florida Department 22 Economic Opportunity.A ROGO year means the twelve-month period beginning on July o 23 13. Market rate allocations shall not to exceed 126 residential units per year, Unused 24 allocations for market rate shall be available for Administrative Relief. 25 26 In 2012, pursuant to Rule 28-20.140, F.A.C., the Department of Economic Opportunity 27 completed the hurricane evacuation clearance time modeling task and found that with 10 28 years' worth of building permits, the Florida Keys would be at a 24 hour evacuation 29 clearance time. This creates challenges for State of Florida and Monroe County as there 30 are 8,168 privately owned vacant parcels [3,979 Tier I; 393 Tier II,260 Tier III-A(SPA); 31 3,301 Tier III, and 235 No tier (ORCA, etc.)] and with 1,970 new allocations this may o 32 result in a balance of 6,198 privately held vacant parcels at risk of not obtaining permits 33 in the future. In recognition of the possibility that the inventory of vacant parcels exceeds y 34 the total number of allocations which the State will allow the County to award,the County 35 adopted a slower rate of annual allocations for market rate development to extend the i 36 allocation timeframe to 2026 and is accepting 300 workforce affordable housin r early 37 evacuation unit building perniit allocations pursuant to the Workforce-Affordable 38 flousinp, Initiative folic • 101.3.12 Workforce Initiative authorized by the Florida 39 Administration Commission and the Florida Department Economic Opportunity, These 40 workforce housin J early evacuation allocations that are in addition to the maximum 41 building peripit allocations identified in Rules 28-20 F.A.C. The COL111ty will consider 42 adopting an extended timeframe for distribution of the ROGO allocations through 2033 43 with committed financial support from its State and Federal partners. This timeframe can 44 provide a safety net to the County and provide additional time to implement land 45 acquisition and other strategies to reduce the demand for ROGO allocations and help 46 transition land into public ownership. 47 ordinance No. -2021 Page 7 of 19 File 2020-067 Packet Pg. 3533 S.1.d Exhibit A to Transmittal Resolution 1 The County is actively engaged in acquisitions and is requesting its State and Federal 2 partners for assistance with implementing land acquisitions in Monroe County. The 3 County will allocate the 1,970 new dwelling unit allocations through July 12 2026 comer 4 ., 1 n ''ear- ton 4 ffie If substantial financial support is provided by July 12, 24"2023, 5 the County will reevaluate the ROGO distribution allocation schedule and consider an 6 extended timeframe for the distribution of market rate allocations (through a 7 comprehensive plan amendment). Further,the State and County shall develop a mutually 8 agreeable position defending inverse condemnation cases and Bert J. Harris, Jr. Private 9 Property Rights Protection Act cases, with the State having an active role both directly 10 and financially in the defense of such cases. 11 12 The County shall distribute ROGO allocations by ROGO year, as provided in the table 13 below. 0 14 U I ROGO Year Annual Allocation Market Rate Affordable Housing Workforce Initiative July 13,2013—July 12,2014 126 71 July 13,2014—July 12,2015 126 71 W July 13, 2015—July 12,2016 126 July 13,2016—July 12,2017 I26 0 July 13,2017—July 12,2018 126 NIA m July 13,201&—July I2,2019 126 July 13,2019—July 12, 2020 126 m 568 total AFH E July 13,2020—July 12,2021 64 (total available July 13,2021July 12, 2022 54 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 E TOTAL 1,260 710* 300** i *Includes two annual affordable ROGO allocations for the Big Pine KeyNo Name Key subarea}through the Incidental Take Permit(ITP)ending in 2023. cv * Workforce housing early evacuation unit alit}cations shall be available countywide unincor grated icounty)and distributed on a first-come first-serve basis. Requests for dw elfin g units develo ped and/or deed- 0 irestricted utilizing the worklorce 110 usi i2g early evacuation unit allocations are subiect to the-El ovisions of °— Policy 101.3.12. 15 16 The State of Florida, pursuant to Administration Commission Rules, may modify the 0 17 annual allocation rate. Monroe County will request a Rule change from the 18 Administration Commission to authorize the above allocation timeframe and rate. 19 20 21 m 0 ns Ordinance No. -2021 Page S aF 19 File 2020-067 Packet Pg. 3534 S.1.d Exhibit A to Transmittal Resolution 1 Policy 101.3.3 0 2 Monroe County shall allocate at least 20% of the annual allocation, or as may be 3 established by the State of Florida, pursuant to Administration Commission Rules, to 4 affordable housing units as part of ROGO. Any portion of the allocations not used for 5 affordable housing shall be retained and be made available for affordable housing from 6 ROGO year to ROGO year. Affordable housing eligible for this separate allocation and 7 workforce liousing early evacuation units shall meet the criteria specified in Policy 8 601.1.4 and the Land Development Code, but shall not be subject to the competitive 9 Residential Permit Allocation and Point System in Policy 101.6.4. Any parcel proposed 10 for affordable housing or workforce hOLISing early evacuation units shall not be located 11 within an area designated as Tier I as set forth under Goal 105 or within a Tier III-A 12 Special Protection Area as set forth in Policy 205.1.1. 13 0 14 Notwithstanding the foregoing, and notwithstanding Policy 101.6.2. affordable housing 15 ROGO allocations may be awarded to Tier I or Tier III-A properties which meet all of 16 the following criteria: -19 17 1. The property contains an existing market rate dwelling unit that meets the criteria in 0 18 LDC Section 138-22(a) and is determined to be exempt from ROGO; 19 2. The proposed replacement affordable dwelling unit meets current Florida Building W 20 Code and is not a mobile home; 21 3.The proposed replacement dwelling unit shall be deed restricted for a period of at least 22 99 years as affordable housing pursuant to the standards of the Land Development 0 23 Code; and 24 4. The proposed site plan for the replacement affordable dwelling unit does not propose 25 any additional clearing of habitat. 26 27 Policy 101.3.4 0 28 The Permit Allocation System (or Rate of Growth Ordinance) for new residential 29 development shall specify procedures for: 30 1.establishing the annual number of permits for new residential units to be issued during 31 the next ROGO year based upon, but not limited to the following: 32 a.expired allocations and building permits in previous year; 33 b. allocations available, but not allocated in previous year; y 34 c. number of allocations borrowed from future quarters; 35 d. vested allocations; i 36 e. modifications required or provided by Administration Commission Rules; 37 f. modifications required or provided by this plan or agreement pursuant to Chapter 38 380, Florida Statutes;and 39 g. receipt or transfer of affordable housing allocations by intergovernmental 40 agreement; and 41 h. receipt or transfer of allocations pursuant to the 2012 Hurricane Evacuation 42 Clearance Time Memorandum of Understanding. a 43 2. allocation of affordable housing. workforce housing early evacuation units and market 44 rate housing units in accordance with Policies-Y 101.3.2 and 101.3.3; and 45 3. timing of the acceptance of applications, evaluation and scoring of applications, and 46 issuance of permits for new residential development during the calendar year. 47 0 ns Ordinance No. -2021 Page 9 of t9 File 2020-067 Packet Pg. 3535 S.1.d Exhibit A to Transmfttal Resolution 0. 1 Policy 101.3.5 0 2 Due to the limited number of allocations and the State's requirement that the County tI 3 maintain a maximum hurricane evacuation clearance time of 24 hours, Monroe County 4 shall prohibit new transient residential allocations for hotel or motel rooms, campground 5 spaces, or spaces for parking a recreational vehicle or travel trailer until May 2022. 6 Lawfully established transient units shall be entitled to one unit for each type of unit in 7 existence before January 4, 1996 for use as a ROGO exemption. (Ord.No. 024-2011) c 8 9 Policy 101.3.6 10 All public and institutional uses (except hospital rooms) that predominately serve the a 11 County's non-transient population and which house temporary residents shall be subject 12 to the Permit Allocation System for residential development, except upon factual 13 demonstration that such transient occupancy is of such a nature so as not to adversely o 14 impact the hurricane evacuation clearance time of Monroe County. W 15 2 16 * * ,� 0 17 18 Policy 101.3.9 CD CD 19 For those ROGO applications and properties which have not received a ROGO award for W 20 four consecutive years and have applied for administrative relief, which are designated 21 Tier I, II, or IIIA, the County or the State shall offer to purchase the property if funding 22 for such is available. Refusal of the purchase offer shall not be grounds for granting a 23 ROGO award. 24 25 Policy 101.3.10 26 Notwithstanding any other provision of the Plan. except the last sentence of this ['olic y m 27 101.3.10 huildin = 1�� allocations utilized for affordable housing projects may be a 28 pooled and transferred between ROGO sub-areas,excluding the Big Pine/No Name Keys 29 ROGO subarea,and between local government jurisdictions within the Florida Keys Area0. 30 of Critical State Concern (AC SC). Any such transfer of affordable housin 7 allocations 31 between local government jurisdictions must be accomplished through an interlocal 32 agreement between the sending and receiving local governments. Interlocal aj4reernents _ 33 that involve assigning the CounWs affordable housing not lncludtn =affordable housing 34 allocations banked for takings cases allocations io evi.s till 7 T tvelhi, Fruits Kvthin u 35 nnun civaliti,with a re uirement that the associated market rate ROCO1BPAS exem lions i 36 be transferred into the unincorporated Countv as an exchange for the affordable housing 37 allocations transferred to the municipality. shall be accom lished throe a minor N 38 conditional use pennit a1212roval and shall he subject to the receiver site criteria in Policy 39 101.6.8 and max- be transferred to qI_IV subarea within the unincorporated County. In no 40 event shall the Count 1pool and transfer workforce housing early evacuation unit °- 41 allocations between ROGO) suh-areas 2 iransttr workforce 11OLISinp early evacuation 0 42 unit allocations to another government jurisdiction. 3 receive workforce housin r earl 43 evacuation unit buildinq allocations from another governnient jurisdiction. or 4 transfer 44 affordable housinc Rt7GO allocations received by the County in exchan c for workforce 45 housing early evacuation unit allocations to anothergovernment jurisdiction. 46 47 c Ordinance No. -2021 P File 2020-067 age 10 of 19 Packet Pg. 3536 S.1.d Exhibit A to Transmittal Resolution 0. 1 Policy 101.3.11 0 2 Monroe County may receive additional building permit allocations pursuant to the 2012 3 completed hurricane evacuation clearance time modeling and allocation 4 recommendations by the State Land Planning Agency and the Administration 5 Commission's direction that the City of Key West w transfer annually(by July 15th) 6 any remaining unused allocations for that year to the other Florida Keys' local 7 governments based upon the local governments' ratio of vacant land. Any transferred 8 allocations from the City of Key West to Monroe County shall be made available for 9 Administrative Relief. Monroe County may receive and award 300 building-permit 10 allocations desig,nated as workforce housing early evacuation units pursuant to the 11 Workforce-Affordable Housin ' Initiative (Policy 101.3.12 Workforce Initiative as _ 12 provided by the Florida Administration Commission and the Florida Department 13 Economic Opportunity, These allocations that are in addition to the maximum allocations 0 14 identified in Rules 28-20. F,A.C.. and small be re aired to evacuate in Phase 1 of the 48- 15 Ilr evacuation of a pendiil= ma'or Hurricane. 0 16 17 Policy 101.3.12 0 18 Workforce Initiative. To s 3ort Monroe C:outtt 's workforce b •ailev�onstraints 19 on affordable housing, to protect private ro ert , ri-ghts and address Dnteittial liability, W 20 the Count is participatililii in the Workforce-Affordable Housitl = Initiative Workforce LU 21 Initiative as approved during the June 13 2018 uneetino of the Florida Administration 22 Commission. Monroe Count, acce is the 300 workforce housin T early evacuation 23 building permit allocations pursuant to the Workforce-Affordable Housing Initiative 24 authorized by the Florida Administration Commission and the Florida Department 25 Economic Opportunity. The Workforce-Affordable Housing_ Initiative will re mire 26 dwellin units constructed and/or deed restricted with workforce housing earl 27 evacuation building permit allocations to evacuate Occupants in Phase 1 of the 48-hr 28 evacuation of a :)ending maior hurricane pursuant to the criteria below, 29 0. 30 To Vailicipate in the Workforce Initiative Monroe Count shall be responsible for the 0 31 management. distribution. and eilf'orcement of re uirenlents associated with the 0 76 32 workforce housing early evacuation building permit allocations. Monroe Count , shall 33 ensure adherence to these recluirernents throu h im lenientation of this o[ic and shall 34 annually provide to the Florida Department Economic o ortunity a re Dort indicating,the 35 number of' workforce housin -, early evacuation units built and/or deed restricted. ¢i 36 occu anc , rates and con1111113liance with the requirement to evacuate the units in Phase I ol' 37 an evacuation. The annual report shall be rovided to the State in a timely manner such `V 38 that the State may include the information in the required Annual Report ort to the Governor 39 and Cabinet on the Count 's progress toward completion of its Work Pro,Traju pursuant 0 40 to Rule 28-20, F.A.C. 2 41 0 42 Dwelling units developed and/or deed restricted utilizing the workforce housin u earl 43 evacuation unit allocations are subject to the followin 44 45 (a) Rec nests for workforce housin if, early evacuation unit allocations shall be available 46 only for a 1 for l exchange for affordable allocations./exemptions and require- a 47 reservation via BOCC. resolution. The BQCC may, at its discretion lace 0 Ordinance No. -202 i P File 2020-067 age 11 of 19 Packet Pg. 3537 S.1.d Exhibit A to Transmittal Resolution 1 conditions on any reservation as it deems appropriate. The BOCC nla at its o 2 discretion exchange existin reserved affordable allocations for allocations tinder 3 the Workforce Initiative to private develo rnent and nonprofit sector artners 4 willin to meet the re uirements of the workforce housing. early evacuation unit 5 allocations. Further the BOCC ,In at its discretion approve the exchange of 6 existing deed-restricted affordable housing units lawful affordable exen bons at 7 existing multifamily residential develo menus for allocations under the Workforce 8 Initiative to private develop] and non root sector artners willing to meet the 9 requirements of the workforce housin-, early evacuation unit allocations. 10 1 The affordable allocations returned to the County in exchan e for workforce � 11 housing early evacuation unit allocations shall be banked and used for future _ 12 administrative relief beneficial use determinations and to resolve inverse 13 condernnation cases and Bert J. Harris Jr. Private Property Rights Protection o 14 Act cases. 15 2' To maintain consistency with Rule 28-20.140 2 h , F.A.C. the affordable 16 allocations returned to the County shall be maintained as affordable allocations19 17 and shall also be returned to the original affordable liotrsill-, Cate =o ver o 18 low/low/median income vs. moderate income CD ool . 19 The workforce housing early evacuation unit allocations must be utilized based 20 on the or i inaI approved affordable housin 2 income cate vory or a lesser•income 21 category. 22 (4) Administrative relief means actions taken by the Count rantin the owner of o 23 real prODert , relief' from the continued application of the Rate of Growth 24 Ordinance ROCC7 restrictions provided they meet the criteria established in 25 the Conl rehensive Plan and Land 1]cvelo ment Code. 26 (5) Beneficial use means the use of 13rovertv chat allows an owner to derive a benefit 27 or profit in the exercise of a basic ro ert ri At. For the puirpose of this 1201io•, 28 beneficial use shall mean the minimum use of the ro ert necessar to avoid 0. 29 the findinp, of a regulatory taking under current land use case law. o 30 (b) The construction of dwellin units, the redevelo meat or the deed restriction of 31 existing dwellinR units utilizing workforce housing early evacuation unit o 32 allocations shall rc uire a roval of a resolution 2mirovin a contract between the 33 BOCC and the applicant to ol 1111:1ally exchange the allocations and confirm 34 compliance with the requirements Workforce Initiative within this Poflic . 35 (c) All workforce housing early evacuation units require a deed-restriction ensurin : ¢i 36 {1) Before a ny buildin g perinit Ina y be issued for any structure port ion or phase of 37 a proiect subiect to the Workforce Initiative a restrictive covenant shall be `V 38 approved by the Planning Director and County Attorney and recorded in the 39 Office of the-Clerk of the Count to ensure con liance with the provision of' 40 this section runnir}g in favor ofthe Count and eni«rceable b the Count : and. 41 if applicable. a artici aline municipality. The following g requirements shall 42 at)ply to these restrictive covenants: 43 a. The covenants for an workforce housing earl v evacuation units shall be c, 44 effective for 99 ears. 45 b. The covenants shall not commence running until a certificate of-occu anc 46 has been issued by the Building Official for the dwelling unit or dwelling 47 units to which the covenant or covenants apply. Ordinance No. -2021 P File 2020-067 age 12 of 19 Packet Pg. 3538 S.1.d Exhibit A to Transmittal Resolution 0. 1 c. For existing dwelling units that are deed-restricted as workforce housim2 o 2 earl), evacuation units. the covenants shall commence runnin 3 upon 3 recordation in the Official Records of Monroe Count L. 4 2 The covenants shall require that the workforce housing early evacuation units 5 to be restricted to rental occu anc for those w•ho derive at least 70% of(heir 6 income as members of the workforce in Monroe County and who meet the 7 affordable housin R income categories of' the Monroe County Land $ Develo mcnt Code. Tf�e Occupants are re aired to annually verify their 9 employment and/or income eligibility. 10 3 The covenants shall re wire Occupants to evacuate in Phase 1 of' the 48-hr 11 evacuation of.a pending major- hurricane. Persons living in the vvorkfo rce _ 12 housing early evacuation units who may be exempted from evacuation 13 requirements are limited to law enforcement correctional and fire personnel. o 14 health care ersonnel and—public em to ees with emer gencv many =ement 15 responsibilities. If there is an occupant that indicates their employment is 16 considered a`first-res under position'and not included in the list of exem tions19 17 above then the Planning Director shall determine in vvritin whether the o 18 person may be exem ted because of a requirement W remain during anCD 19 emer=encv. Anv person clainiij g exem tion under this rovision shall submit 20 of'an affidavit of uglification and faiti�fully certify, their status with the onsite LU 21 pro pert mana ement. 22 4 The covenants shall require rental agreements which contain a se crate 23 disclosure requiring rental occu ants to acknovti•ledfIe the existin restrictive 24 covenant on the unit rer uirin g evacuation in Phase 1 of the 48-hr evacuation -a 25 and that failure to adhere to the Phase I evacuation requirement could result in 26 severe pcnalties includin g eviction to the occu pant. 27 5 The covenants shall require onsite ro pert y managers and a se crate � 28 employment disclosure requiring the maintenance of training in evacuation 0 29 procedures and an acknowledgement that failure to adhere to the Phase f o 30 evacuation re uirerent could result in severe enalties, includin = termination. 31 {d) Workforce housin ti earl evacuation units shall he restricted to rental occupancy 32 for those who derive at least 70% of their income as members of the workforce in 33 Monroe County and who meet the affordable housin , income categories of the 34 Monroe Count , Land DeveIo meta Code. Workforce rneans individuals or families 35 who are ainfully em ]o red supplying =odds and/or services to Monroe County ¢I 36 residents or visitors. 04 CD 37 (e) Workforce I)OUSing early evacuation units shall require onsite ro erty 38 management with property managers trained in evacuation-procedures and recj gired 39 to manage the evacuation of tenants in Phase I of an evacuation, ❑urin�.�aditional 40 working hours the-property nianager must be at an off-ice within the workforce 41 housin =early evacuation unit develo pment sub'ect property, Qutsidc tlie traditional 42 working hours. the ro ert y manager ger must be available at all times to res and to 43 evacuation orders. 44 {f} f"he ro erty mana cement entit for the workforce housing early evacuation units 45 shall be required to annually verify the em to rnent and income elighility of 46 tenants., report the total units on the site the occupancy rates of units. and tenant 47 compliance with the requirement to evacuate the units in Phase I of an evacuation. m Ordinance No. -202i P File 2020-067 age 13 of 19 Packet Pg. 3539 S.1.d Exhibit A to Transmittal Resolution 0. 1 including the number of occupants that are exempt from the evacuation 2 requirements. The propertv management entity must submit a re ort to the I'lannin 3 and Environmental Resources ❑e artment by May I of each year. Further, each 4 lease and this annual report shall be kept by the Pro Perty man a er and be available 5 for inspection by the Comirl. Burin traditional workin g hours. 6 W Workforce housin P,early evacuation units shall be located within an area des =nated 7 as Tier 111. 8 (h) Workforce housing early evacuation units zliall not be located in the V-Zone or 9 %Within a Coastal Barrier Resource System CBRS . 10 (1) Workforce h using early evacuation units shall be located on a property which has 11 all infrastructure available (potable water, adequate wastewater treatment and 12 disposal wastewater mectin , adopted I_QS, paved roads etc. . N 13 0) All workforce housing early evacuation units �l�ust demonstrate cmo liance Nvith o 14 all a licable federal standards for accessibility forPei-sons with disabilities ADA 15 Compliance). o le 16 (k) To the greatest extent practicable. a development utiliLin ', workforce housing cariv 17 evacuation unit allocations shall incorporate sustainable and resilient design o 18 principle.,, into the overall site design and be accessible to-emillo ment centers inCD 19 KeyVest, Stock Island and Marathon. W 20 21 GOAL 601 22 Monroe County shall adopt programs and policies to facilitate access by residents to adequate and o 23 affordable housing that is safe, decent, and structurally sound, and that meets the needs of the W 24 population based on type, tenure characteristics, unit size and individual preferences. 25 26 Objective 601.1 27 ` o ensure that affordable housing opportunities are available throughout the entire communit 28 and to maintain a balanced and sustainable local economy and the provkhm of essential 29 services. Monroe County shall implement the following defined policies to reduce estimated 30 affordable housing need for its workforce and households in the very low, low, median and 31 moderate income classifications. 32 33 Policy 601.1.1 34 Monroe County shall maintain land development regulations, in conjunction with the 35 Permit Allocation System,for apportioning future affordable housing development 0 fi an i 36 37 38 Policy 601.1.2 39 Monroe County shall continue e*pa++# its participation in Federal and State housing 40 assistance programs to rehabilitate owner and rental housing for very low, low, median, 41 and moderate income residents by seeking grants, loans, and technical assistance in y 42 conjunction with the Monroe County Housing Authority by-AAa�r 1. �(4 a� 43 CJ 44 Policy 601.1.3 ca 45 The Monroe County Land Authority shall maintain a list of buildable properties owned 46 or targeted for acquisition by the Land Authority which potentially could be donated or 47 made available for affordable housing. This list will be updated annually and made Ordinance No. -2021 P File 2020-067 age 14 of 19 Packet Pg. 3540 S.1.d Exhibit A to Transmittal Resolution 0. 1 available to the public.The guidelines established in Policies 601.1.10 and 601.1.11 shall o 2 be considered in the formulation of this list. 3 N 4 Policy 601.1.4 5 All affordable housing projects which receive development benefits from Monroe 6 County, including but not limited to RDGD allocation award(s) reserved for affordable 7 housing, maximum net density, or donations of land, shall be required to maintain the 8 project as affordable for a period of 99 years pursuant to deed restrictions or other 9 mechanisms specified in the Land Development Code, and administered by Monroe 10 County or the Monroe County Housing Authority, 11 12 Policy 601.1.5 N 13 If Monroe County funding or County-donated land is to be used for any affordable o 14 housing project, alternative sites shall be assessed according to the following guidelines; 2 15 1. The Iocation of endangered species habitat. Sites within known, probable, or 16 potentially suitable threatened or endangered species habitat shall be avoided. le 17 2. The environmental sensitivity of the vegetative habitat. The habitat sensitivity shall o 18 be determined according to the ranking specified in the Environmental Design CD W 19 Criteria section of the Land Development Code. Disturbed sites shall be selected, 20 unless no feasible alternative is available. LU 21 3. Sites located within V-Zones, on offshore islands, or within CBRS units shall be 22 avoided. o 23 4. The level of service provided in the vicinity for all public facilities. Areas which are 24 at or near capacity for one or more public facility should be avoided. 25 5. Proximity to employment and retail centers. Sites within five miles of employment 26 and retail centers shall be preferred. E 27 28 Policy 601.1.6 0 0. 29 Monroe County shall identify funding sources that could be made available to support 30 community-based non-profit organizations such as Habitat for Humanity in their efforts 31 to provide adequate affordable housing. 32 33 Policy 601.1.7 34 Monroe County shall continue to participate in the State Housing Incentives Partnership 35 program as specified in the 1992 William Sadowski Affordable Housing Act. Monroe 36 County shall also continue to maintain a Local Housing Assistance Plan and Affordable 37 Housing Incentive Strategies as specified in the Act and recommended by the Monroe 38 County Affordable Housing Advisory Committee. 39 40 Policy 601.1.8 41 Monroe County shall allocate at least 20%of the annual RQGQ allocation, or as may be y 42 established by the State of Florida, pursuant to Administration Commission Rules, to 43 affordable housing units, as specified in Policy 101.3.3. Affordable housing eligible for 44 this separate allocation must meet the criteria established in the Land Development Code. 45 Monme County may award 300 additional building I 3ermit allocations designated as 46 work foree housin early evacuation units .ursuant to the Workforce-Affordable Housin 47 Initiative !'olio 101.3,12 Workforce Initiative as provided b • the Florida m n3 Ordinance No. .2021 P File 2020-067 age 15 of 19 Packet Pg. 3541 S.1.d Exhibit A to Transmittal Resolution 1 Administration Conunission and the Florida De artment Economic O • ortunit . These o 2 allocations are in addition to the maximum allocations identified in Rules 28-20. F.A.C.. 3 are restricted to rental occu 3anc for those who derive at least 70% of their income as �N- 4 members of the workforce in Monroe County and who meet the affordable housing 5 income categories of the Monroe Count Land llevelo went Code and— shall be rep uired 6 to evacuate in Phase 1 cif the 48-hr evacuation of a endin = maor hurricane. 7 8 Policy 601.1.9 > 9 Monroe County shall maintain land development regulations which may include density 10 bonuses, impact fee waiver programs, and other possible regulations to encourage 11 affordable housing. 12 13 Policy 601.1.10 14 The Land Authority may acquire land for affordable housing projects if they are deemed 2 15 appropriate and acceptable by the Land Authority as meeting the intent of: o 16 1. the affordable housing provisions in the Land Authority's enabling legislation; 17 2. the goals, objectives and policies of this Plan; and 18 3. the land use designations specified on the Future Land Use Map and in the Monroe 19 County Land Development Regulations. W 24 21 Policy 601.1.11 22 The Land Authority shall not list or acquire vacant lands as potential affordable housing 23 sites if the lands exhibit any of the following characteristics: 24 1. Any portion of the land lies within a known, probable, or potentially suitable 25 threatened or endangered species habitat. 26 2. The land has a Tier designation other than Tier II1. 27 3. The land is located in a V-Zone,on an offshore island ❑r within a CBRS unit. 28 y 0 29 Policy 601.1.12 0. 30 Monroe County shall annually monitor the eligibility of the occupants of housing units 31 which have received special benefits, including but not limited to those issued under the 32 affordable housing provisions specified in the Land Development Code or those issued 33 through the Permit Allocation System. If occupants no longer meet the eligibility criteria 34 specified in the Plan and in the Land Development Code,and their eligibility period has 35 not expired, then Monroe County may take any one or a combination of the following 36 actions: CD 37 1. require the payment of impact fees, if they were waived; 38 2. proceed with remedial actions through the Department of Code Compliance, as a 39 violation of the Monroe County Code; 40 3. take civil court action as authorized by statute, common law, or via agreement 41 between an applicant and the County; and/or 42 4. require the sale or rental of the unit(s)to eligible occupants. 43 44 Policy 601.1.13 45 Monroe County shall maintain land development regulations on inclusionary housing and 46 shall evaluate expanding the inclusionary housing requirements to include or address Ordinance No. -202 File 2020-067 Page 16 of I9 Packet Pg. 3542 S.1.d Exhibit A to Transmittal Resolution 1 nonresidential and transient development and redevelopment based on specific data and o 2 analysis. 3 N 4 Objective 601.2 5 Monroe County shall adopt programs and policies to encourage housing of various types, sizes 6 and price ranges to meet the demands of current and future residents o 7 8 Policy 601.2.1 > 9 Public-private partnerships shall be encouraged to improve coordination among 10 participants involved in housing production. In these efforts, the County will establish a 11 comprehensive central depository for housing information located at the Monroe County 12 Housing Authority and Growth Management Division for the coordination and 13 cooperation among public and private agencies which collect and use housing data. o 14 15 Objective 601.3 16 Monroe County shall continue implementation efforts to eliminate substandard housing and to 17 preserve, conserve and enhance the existing housing stock, including historic structures and 18 sites. CD 19 20 Policy 601.3.1 W 21 Monroe County shall coordinate with other County agencies to monitor housing o 22 conditions. Standards for evaluation of the structural condition of the mousing stock are 23 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 28 � provided in the course of regular maintenance, such as repainting. A housing unit is 29 classified as deteriorating when its deficiencies indicate a lack of proper upkeep. 0. 34 31 Dilapidated(Substandard):A housing unit in this category indicates that the unit can o 32 no longer provide safe and adequate shelter or is of inadequate original construction 33 including being constructed below the minimum required elevation by FEMA or the 34 County's Floodplain Regulations. 35 36 Policy 601.3.2 CD 37 The County Code Compliance Office and Building Department will enforce building 38 code regulations and County ordinances governing the structural condition of the housing 39 stock, to ensure the provision of safe, decent and sanitary Dousing and stabilization of 40 residential neighborhoods. 41 0 42 Policy 601.3.3 y 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 45 Authority and State and Federal Floodplain or Hazard Mitigation programs to facilitate 46 increased private reinvestment in housing by providing information, technical assistance Ordinance No. -2Q21 File 2020-067 Page 17 of 19 Packet Pg. 3543 S.1.d Exhibit A to Transmittal Resolution 1 in applications for federal and State funding, or provide local public funds for o 2 rehabilitation purposes. 3 N 4 Policy 601.3.4 S Monroe County shall encourage identification and improvement of historically 6 significant housing through the coordination of public information programs defining 7 benefits and improvement funding sources. 8 9 Objective 601.4 10 Monroe County shall maintain land development regulations which allow group homes and 11 foster care facilities licensed or funded by the Florida Department of Health(DOH),as well as 12 subsidized housing for elderly residents of the County, to be located in residential areas as 13 appropriate. o 14 15 Policy 601.4.1 16 Monroe County shall maintain land development regulations which permit group homes 17 and foster care facilities (homes of six or fewer residences which otherwise meet the 18 definition of Community Residential Home pursuant to F.S. § 419.001(1)(a)) Iicensed or 19 funded by the DOH in all land use categories which permit residential development where Z0 consistent with other goals, objectives, and policies of this Comprehensive Flan. 21 22 Policy 601.4.2 23 The County shall identify and evaluate alternative strategies to expand subsidized housing 24 programs for elderly residents of Monroe County through coordination with the Monroe 25 County Housing Authority, and encourage their development by private, community- 26 based non-profit, or public entities, as well as public/private partnerships. 27 28 Objective 601.5 0 0. 29 The County shall provide uniform and equitable treatment for persons and businesses displaced o 30 by state and local government programs, consistent with F.S. § 421.55. 0. 31 32 Policy 601.5.1 33 By May 1,4412024, Monroe County shall adopt uniform relocation standards for v, 34 displaced households. 35 36 37 Section 2. everability. If an section, cv y on, paragraph, subdivision, clause, sentence or 38 provision of this ordinance shall be adjudged by any court of competent jurisdiction to be invalid, 39 such_judgment shall not affect, impair, invalidate, or nullify the remainder of this ordinance, but 40 the effect thereof shall be confined to the section, paragraph, subdivision, clause, sentence, or 41 provision immediately involved in the controversy in which such judgment or decree shall be 42 rendered. 43 44 Section 3. Conflicting Provisions. All ordinances or parts of ordinances in conflict with 45 this ordinance are hereby repealed to the extent of said conflict. 46 Ordinance No. -2021 File 2020-067 Page is of 19 Packet Pg. 3544 S.1.d Exhibit A to Transmittal Resolution 1 Section 4. Transmittal. This ordinance shall be transmitted to the Florida State Land 0 2 Planning Agency as required by F.S. 380.05 (11)and F.S. 380.0552(9). 3 N 4 Section 5. Filing. This ordinance shall be filed in the Office of the Secretary of the State 5 of Florida but shall not become effective until a notice is issued by the State Land Planning Agency 0 6 or Administration Commission finding the amendment in compliance with Chapter 163, Florida 7 Statutes and after any applicable challenges have been resolved. S 9 Section 6. Inclusion in the Monroe Coun Com rehensive Plan. The text amendment 10 shall be incorporated in the Monroe County Comprehensive Plan.The numbering of the foregoing 11 amendment may be renumbered to conform to the numbering in the Monroe County 12 Comprehensive Plan. N 13 0 14 Section 7. Effective Date. This ordinance shall become as provided by law and stated 15 above. o 16 0 17 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, 18 Florida, at a regular meeting held on the day of 19 2 Mayor Michelle CoidironLU 21 Mayor Pro Tem David Rice 22 Commissioner Craig Cates 23 Commissioner Eddie Martinez 24 25 Commissioner Mike Forster 26 27 28 �+ BOARD OF COUNTY COMMISSIONERS o0. 29 OF MONROE COUNTY, FLORIDA 30 31 BY o 32 MAYOR MICHELLE COLDIRON 33 34 (SEAL) 35 i 36 ATTEST: KEVIN MADOK, CLERK CD 37 38 AS DEPUTY CLERK 39 0 Ordinance No. -2021 File 202"67 Page 19 of 19 Packet Pg. 3545 S.1.d — + I KEY WEST AIMUM The Florida K"Wiy Deny Newspaper,Eat. 1876 PO Om t8tJ0,Key KiWFL 33M F:f30 51 292-71T7ext 2,9 F:(3o5)2a5-W25 hpare�keyanews oonr MONROE CO PLANNING DEPT MURRY E NELSON GOVERNMENT CENTER 102050 OVERSEAS HWY KEY LARGO FL 33037 Account: 138694 Ticket: 373W3 PUBLISHER'S AFFIDAVIT STATE OF FLORIDA COUNTY OF MONROE [legal.text] 2 0 Before the undersigned authority personally appeared 0 who on oath says that he or she is CD of the Key West Citizen,a daily W newspaper pu ad I Key WOO in Monme County,Florida;that the attached copy of advertiament,being a legal notice in the matter of was published in said newspaper in the issues of 0 Sunday,January 3,2021 _ Affiant further says that the Key West Citizen is a newspaper published in Key West,in said Monroe County,Florida and that the said newspapers has hereto- fore been continuous) E y published in geld Monroe County,Florida every day,and has been entered as periodicals matter at the post office in Key West,in said Monroe County.Florida.for a period of 1 year next preceding the first pubtication Of the attached copy of advertisement;and affiant further says that he or she has neither paid nor promised any person,firm or corporation any discount,rebate. N commission or refund for the purpose Of securing this ad:p:�= vertisement for publica- 0. tion in a said 00. 4— R 0 ant t(Notar& fore me this 4th day of January 2021 y CD 5' 7� ' Nrinted Name) (Notary Seal) tV My commission expires 12 zzz- Personally Known-IL Produced Identification Type of Identification Produced N U U Sue"n Stamper COMM r Gr>=2 E EMS. 22r,u2�,a{���z + M0NP0EC0PL-&4-373663-1,p& 1 N OL7111W WU r'1M NOR 1 V22J21 1:Se PM Packet Pg. 3546 —__ _ _ � , J ■ ,� � i �i I ,�, �� •� o€ . k� d�_ d €: € .0 - w a -,:x ;..= a. m�' � 9i z 4 s � �a €� a Y',�� -�, i �, � � � �, d, q i � ��� � "� �* � � �` � ,� I � '. �'� i� r � • '",Ikh � ,��° d - � � :ri� kn a%.:�. ,�o."s,�, ��', s.� '_k k g a� Mr � ul ��.�,d:.r"', �,€, ,q.,� �. �� � �. � �i '� € � Mf i. » .� i � A � �+ s k d �$ �+ v , � � m i b � �' 0 R � Prt € �' M u� f a a � �x� _ � _ a i a �,� u. :a � e� ,�� � -�, ._a �� � �' ■'- ■ :,r,:a �' _. � w. .ne.€ r v a �, xrF�M e, r "�+ j I Ili' . c , c FOR IMMEDIATE RELEASE CONTACT: GOVERNOR'S PRESS OFFICE CL 0. May 2, 2018 (850)717-9282 mediaCc�eog.m�florida.com N .E Gov. Scott Directs DEO to Enhance Workforce Housing in the Florida Keys 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 recoverfrom the tremendous impact Hurricane Irma had on the Keys. Hurricane Irma destroyed much 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 initiative will be presented to the Florida Cabinet at the next meeting. 0 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 W business owners across the Keys, the availability of affordable workforce housing has been a y challenge that was compounded by Hurricane Irma.The Keys Workforce Housing Initiative will provide 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." yi 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 i 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. 3548 S.1.e 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." 0 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 have discussed this concern with Governor Scott and the Department of Economic Opportunity (DEO) CL 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 N 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." 0 U c 0 r9 CL i i 0 U 0 LU Packet Pg. 3549 Goal X—Workforce-Affordable Housing Initiative. CL To support Monroe County's workforce by alleviating constraints on affordable housing the County shall 0. participate in the Workforce-Affordable Housing Initiative, as approved during the June 13, 2018 meeting o 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. 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 CD implementing the policies of this objective. U) 0 Policy X.1.1—Distribution of Workforce-Affordable Housing Allocations. Workforce- affordable housing allocations shall be distributed in accordance with (insert policy 0 describing BPAS ranking procedures or ranking procedures specific to POA). 0 Policy X.1.2 - Specific Standards and Requirements for Workforce-Affordable Housing. Workforce-affordable housing units built under this program shall: W a. be multifamily structures, 0 b. be rental units, o c. require, at a minimum, adherence to the latest edition of the Florida Building LU i 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; 15 g. incorporate sustainable and resilient design principles into the overall site LU 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, 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, e®� iv. onsite property managers are formally trained in evacuation procedures. LU Policy X.1.3—Evacuation exemptions. Persons living in workforce-affordable housing 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 LU required to remain during an emergency, provided the person claiming exemption under this policy has faithfully certified their status with property management. Packet Pg. 3550 C Policyx.1.4—ADACompliance. All workforce-affordable housing developments must CL demonstrate compliance with all applicable federal standards for accessibility for persons 0. with disabilities. c 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. 3551 MONROE COUNTY THE FLORIDA KEYS AREA OF CRITICAL STATE CONCERN c PRIVATE PROPERTY RIGHTS PROTECTION CHALLENGES 0 The Florida Keys are designated as an Area of Critical State Concern (ACSC) by the State Legislature,pursuant to C F.S. 380.05. This designation gives the State oversight authority over development in the Florida Keys and limits the C. number of residential housing permits that Monroe County and its municipalities may issue each year. 0. 0 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. n 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 2 limited number of permits. The most recent hurricane modeling completed in 2012 by the Department of Economic Opportunity(DEO),pursuant a) 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 W clearance. In March 2013, the Governor and Cabinet, sitting as the State Administration Commission, approved the recommendation to allocate no more than 3,550 building permits. 0 To date, a total 2,129 permits of the 3,550 permits have been allocated, and 1,421 remain to be allocated. The Florida Keys are fast approaching "buildout,"at which point additional permits may not be allocated by the State. le The State of Florida and the local governments of the Florida Keys may face significant liability because the number of undeveloped, privately-owned parcels in the Florida Keys ACSC far exceeds the remaining permitCD allocations, leaving property owners without rights to build on their properties, as demonstrated in Table 1. M CD Table 1:2018 Inventory of Privately-Owned,Vacant Parcels in Florida Keys and Approximate Land Value C44 CD cv 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 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 E 1,421 TOTAL REMAINING ALLOCATIONS (, 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' E 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. 3552 S.1.g TAKINGS:CASES,JOINT DEFENSE AND LIABILITY and the need for THE FLORIDA KEYS PROPERTY RIGHTS PROTECTION ACT 0 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. Since 2005, Monroe County and the State of Florida have been jointly defending multiple takings cases. The State and CL 0. the City of Marathon operated under a similar partnership in the two cases where that City was named as a defendant E along with the State. This partnership provides for mutual litigation support and cooperation in exchange for an U 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 :5 public resource litigating against each other over the issue of apportionment, which would cause both unnecessary 0 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. 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. With joint and several liability and given the State's lengthy appropriations process,Florida Keys' property owners who 0 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. 0 r9 The Florida Keys Property Rights Protection Act will: W cv CD cv • >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 ` —_ 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. E • Protect the financial interests of the the local government(and its local taxpayers)that shares joint and y several liability with the State from the being sued for the entirety of the judgment, or being negatively impacted by accruing interest on such judgments due to delays in the State's appropriation process. r9 • 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 a source offundingto'pay inverse condemnation awards against the State. 21 P e M oiiroe Cor71i ( t' :: E, c c Nr- A RY 2020 Packet Pg. 3553 S.1.g 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 0 the Florida Keys Stewardship Act in 2016 authorizing S5M a year (for 10 years for a total of S50M) for land M acquisition in the Florida Keys under the State's primary land buying program,the Florida Forever Program. 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: U N 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 NO. 2018 2018 NO. 2018 2018 NO. 2018 OF AVERAGE APPROX OF AVERAGE APPROX OF APPROX 01 AREA PARCELS PARCEL TOTAL PARCELS PARCEL TOTALLAND PARCELS TOTAL VALUE LAND VALUE VALUE VALUE LAND VALUE Key West 0 $0 $0 133 $397,235 $52,832,202 133 $52,832,202 O a) Unincorp MC 3,039 $14,348 $43,603,716 3,994 $140,270 $560,237,033 7,033 $603,840,749 0 Marathon 414 $10,948 $4,532,519 935 $140,124 $131,016,344 1,349 $135,548,863 Layton 4 $98 $392 20 $148,694 $2,973,875 24 $2,974,267 O 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 W 3,534 $18,038 $63,745,323 6,156 $150,871 $928,763,408 9,690 $992,508,731 tV Allocations to be CD 1,421 applied After allocations 8,269 $846,961,269 2) COUNTY LAND ACQUISITION STRATEGIES AND COMMITMENT: A) Local Land Acquisition Program: Monroe County Board of County Commissioners implemented a land acquisition program to supplement the long standing efforts of the Monroe County Land Authority and those of _ the State of Florida. o Since passage of the Stewardship Act, Monroe County and the Monroe County Land Authority and have budgeted over $19.5M for land acquisition and s ent/encumbered to date $10.2M, retiring 203.76 .2bud g q p U development rights. (County budgeted funds from its infrastructure sales tax fund.) B) Two willing seller programs to retire development rights have been implemented by Monroe County: M • Density Reduction Lot acquisition program: Residential property owners sell parcels with development rights to the County.Density Reduction Lots may later be offered for sale with a deed restriction to prohibit w 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. m • 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. 3 � � � <_; � Monroe CoriTi ( t' i� E, c c _2020 Packet Pg. 3554 S.1.g 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. c 0. • 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. a. • Created Commercial FLUM category (no residential component) - County adopted an amendment to provide options to re-designate property for other nonresidential uses (Provides alternative uses of c property). N • 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. • 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 County. • Revised transfer procedure for ROGO exemptions to provide the ability to transfer a market rate unit 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 single-family residential legally platted lots (dispersing development rights and not grouping multiple development rights on a single property). • Adopted land acquisition priorities (Policy 102.4.2) to balance growth management,habitat protection, 2 retirement of development rights,reduction of density&intensity, future build-out of the Florida Keys, 4- climate change, sea level rise, affordable housing, etc. 0 W cv cv N N r9 Contacts: E • Roman Gastesi, Countv Administrator; 305-292-4441, gastesi-roman@monrocoiintv-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@monrocotintv-fl.gov C` 0u11 B0 CC J A Nt- A RY ono Packet Pg. 3555 STATE OF FLORIDA c U DIVISION OF ADMINISTRATIVE HEARINGS N CECELIA MATTINO, Petitioner, vs. Case No. 18-625OGM a CITY OF MARATHON, FLORIDA, Respondent. 2 0 NAJA GIRARD, c Petitioner, W vs. Case No. 19-1526GM CITY OF KEY WEST, FLORIDA, 0 Respondent. CATHERINE BOSWORTH, c Petitioner, vs. Case No. 19-1839GM CD ISLAMORADA, VILLAGE OF ISLANDS, FLORIDA, c Respondent. 0 RECOMMENDED ORDER y 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. 3556 S.1.h 0. APPEARANCES c CJ For Petitioners: Richard J. Grosso, Esquire Richard Grosso, P.A. 6511 Nova Drive, Mail Box 300 Davie, Florida 33317 Sarah Hayter, Esquire a Shai Ozery, Esquire Robert Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, FL 33060 For Respondents City of Marathon; and Islamorada, Village of Islands, Florida 0 Nicole Pappas, Esquire Barton Smith, Esquire W Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 0 For Respondent, City of Key West: George Wallace, Esquire City of Key West, City Attorney's Office 0 1300 White Street Post Office Box 1409 Key West, Florida 33040 CD STATEMENT OF THE ISSUE 0 Whether City of Marathon ("Marathon") Comprehensive Plan Amendment 0 2018-01, adopted on October 23, 2018 (the "Marathon Plan Amendment"); City of Key West ("Key West") Comprehensive Plan Amendment 19-06, adopted on April 4, 2019 (the "Key West Plan Amendment"); and Islamorada, c U Village of Islands ("Islamorada") Comprehensive Plan Amendment 19-03, 2 adopted on March 5, 2019 (the "Islamorada Plan Amendment") (collectively, 2 Packet Pg. 3557 S.1.h 0. the "Plan Amendments"), are "in compliance," as that term is defined in 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 and analysis and internally inconsistent with the City of Marathon Comprehensive Plan (the "Marathon Plan"), among other allegations, in 2 0 violation of the Community Planning Act, chapter 163, part II, Florida 0 Statutes ("the Act"). Ms. Mattino's petition was assigned to the undersigned CD as Case No. 18-6250. W On March 1, 2019, Petitioner, Naja Girard, filed a Petition with the 0 Division challenging the Key West Plan Amendment as violative of the Act on man of the same rounds. Ms. Girard's Petition was assigned to the Y g g � undersigned as Case No. 19-1526. c i On April 9, 2019, Petitioner, Catherine Bosworth, filed a Petition with the Division challenging the Islamorada Plan Amendment as violative of the Act CD on many of the same grounds as the other Petitioners. Ms. Bosworth's 4- 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. Petitioners filed an Amended Joint Motion to Consolidate ("the Motion") c U the three cases, to which Respondents, Marathon and Islamorada, filed 2 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, E which was in effect when the Plan Amendments were adopted. 3 Packet Pg. 3558 S.1.h 0. The consolidated cases were scheduled for final hearing on October 7 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: Rebecca Jetton, accepted as an expert in comprehensive planning and planning in the Florida Keys; Martin Senterfitt, the Monroe County Director c of Emergency Management; and Richard F. Ogburn, accepted as an expert in c 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, W 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, 0 221, 223, and 228. Petitioners proffered Exhibit 111, which was not admitted in evidence, but travels with the record of this proceeding. 0 U Respondents offered the testimony of: George Garrett, Marathon's 2I planning director; Ty Harris, Islamorada's planning director; and Patrick Wright, Key West's former planning director; each of whom is accepted as an CD expert in comprehensive planning; Michael Alfieri, accepted as an expert in 0 hydrogeology and karstology; William Precht, accepted as an expert in marine ecology; and Joaquin Vargas, accepted as an expert in transportation planning. 0 U Respondents introduced Exhibits 1 through 17, 20 through 66, 68 through 2 83, 85 through 131, 133, and 135 through 153, which were admitted in evidence. 4 Packet Pg. 3559 S.1.h 0. 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 > preparation of this Recommended Order. Evidentiary Considerations Petitioners sought to introduce the deposition testimony of two additional 0 witnesses: Kathleen McKee and Donald Maynard. While the deposition 0 transcripts were admitted, they constitute hearsay for which no exception CD under either section 90.803 or 90.804, Florida Statutes, applies. Section W 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 0 against whom the deposition is offered had the same motive to develop the testimony, has been declared unconstitutional. See Grabau v. Dept of Health, 816 So. 2d 701, 709 (Fla. 1st DCA 2002). Further, Petitioners were unable to 0 U make the required showing of unavailability in order to introduce the former 2I testimony of the two witnesses under the hearsay exception provided in section 90.804(2). Petitioners offered no non-hearsay evidence to corroborate CD the hearsay depositions of Ms. McKee and Mr. Maynard. Respondents objected to the introduction of a number of exhibits relied upon by Petitioners' expert planning witness, Ms. Jetton, in formulating her opinions regarding whether shallow injection wells contribute to nearshore c U water pollution. The articles were written by marine scientists, biologists, 2 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 E parties provided the undersigned with a copy prior to that date. 5 Packet Pg. 3560 S.1.h 0. 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 opinion. § 90.704, Fla. Stat. The expert may even rely upon inadmissible c 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 history of the Keys, particularly as a former employee of the state agency with oversight over planning and development in the Keys. However, 0 Ms. Jetton is not a biologist, chemist, marine scientist, or other scientific 0 expert who would typically rely upon the studies and publications in CD scientific journals for formulating an opinion on, for example, "the fate and W transport of sewage in the subsurface environment and the potential for contamination of marine surface waters[.]"3 0 The documents on which Ms. Jetton relied in formulating her expert planning opinions were admitted, but those documents remain 0 U uncorroborated hearsay. The undersigned has given the appropriate weight i to Ms. Jetton's testimony on these issues. CD FINDINGS OF FACT 0 The Parties and Standin- 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 c U adopted the Plan Amendment. 2 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 E 1995). 6 Packet Pg. 3561 S.1.h 0. 2. Ms. Mattino's daughter is severely disabled, requires specialized equipment (including a specialized wheelchair), and requires full-time care, for which Ms. Mattino relies upon a variety of caretakers. Her daughter has c 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. 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. 0 Prolonged car rides are also stressful for Ms. Mattino, who has high blood CD pressure and has had several heart attacks. W 5. Ms. Mattino evacuated for Hurricane Irma and testified that she encountered heavy traffic, which was made more stressful by the need to stop 0 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 U cause additional stress and would put her and her daughter's health at risk. 2I 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 CD family than it is for the general public. 0 7. Ms. Bosworth resides in Islamorada with her daughter, son-in-law, and 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. c U 8. Ms. Bosworth previously evacuated for Hurricanes Andrew and Irma, 2 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 hurricane shutters. Securing her boat and putting up her shutters requires the assistance of her son-in-law. Ms. Bosworth believes her circumstances are 7 Packet Pg. 3562 S.1.h 0. 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. 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 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. 0 10. Ms. Girard is a resident of Key West. She submitted oral or written CD objections to the Key West Plan Amendment prior to the March 5, 2019 W public hearing at which Key West adopted the Plan Amendment. 11. Ms. Girard testified that, due to her and husband's marine-based 0 business and residential tenants, she and her husband would wait until the verylast minute to evacuate regardless of when an evacuation advisor was g Y � issued by the Monroe County Emergency Management Office. c U 12. Ms. Girard did not evacuate for Hurricane Irma or any other 2I hurricane since moving to a site-built home in Key West in 2007.4 13. Marathon, Islamorada, and Key West, are all municipalities with the CD duty and authority to adopt a comprehensive plan, pursuant to section 0 163.3167, Florida Statutes (2019). Backaound 14. In 1972, the Florida Legislature enacted the Environmental Land and Water Management Act, which provided the basis for state designation of c U Areas of Critical State Concern ("ACSC").5 The statute provides criteria for 2 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 E natural resources. � 8 Packet Pg. 3563 S.1.h 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 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. 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 0 that, among other things, "protects the natural environment," "conserves and CD promotes the community character," "promotes orderly and balanced growth W in accordance with the capacity of available and planned public facilities and services," and "promotes and supports a diverse and sound economic base" in 0 the Keys. § 380.0552(2), Fla. Stat. (2019). 17. The ACSC designation transferred all local Keys planning and development review and approval rights to the state land-planning agency, 0 U the Florida Department of Community Affairs ("DCA").7 While the Keys local 21 governments can adopt and amend their plan and land development regulations, those provisions do not take effect until approved by CD administrative rule. See § 380.0552(9), Fla. Stat. 0 c s The statute contains additional specific criteria for designation, including the economic and 0 ecological value of the area;presence of critical habitat of any state or federally designated 2 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). w 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. E 9 Packet Pg. 3564 S.1.h 0. 18. In 1986, Monroe County updated its comprehensive plan to be 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. 20. The second challenge culminated in a final order of the Administration Commission in 1995 finding the 1993 Monroe County Plan not "in 2 0 compliance," with the Act and the Principles for Guiding Development in the 0 Keys ACSC ("the Principles"), which are adopted by rule of the CD Administration Commission. The Final Order found that "the environment of W the ... Keys is the very essence of Monroe County's economic base. The 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). 21. The litigation highlighted aspects of the Florida Keys ecosystem as 0 U having limited capacity to sustain additional impacts from development. Of 2 i particular concern was the declining water quality of the nearshore environment due to lack of central sewer facilities, the loss of habitat for 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 "has already been reached or even exceeded," and that development of the c U Keys "is degrading the nearshore waters at or over carrying capacity." 2 LU s The Growth Management Act was significantly amended and renamed the"Community E Planning Act," by chapter 2011-142, Laws of Florida. 10 Packet Pg. 3565 S.1.h 0. 22. The 1995 Final Order required Monroe County to undertake certain "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 the hurricane evacuation clearance time does not c 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. CD 24. Monroe County amended its plan in 1996 to implement the PAS and other remedial actions, and adopted a "carrying capacity approach" to planning in the ACSC. c 25. The amended comprehensive plan was approved by rule of the Administration Commission—Florida Administrative Code Rule 28-20, which also established a comprehensive work program designed to improve the 0 Keys' water quality and protect the habitat of threatened and endangered 2 species. CD 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. Comm'n, Case No. 96-2027RP (Fla. DOAH May 21, 1997). 0 The Carrying Capacity Study 27. The work program adopted by the rule included the requirement to E conduct a "carrying capacity analysis" for the Florida Keys. Florida 0 Administrative Code Rule 28-20.100 provided, "The carrying capacity y 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. 3566 S.1.h 0. 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 the impacts of nutrients on marine resources. > W 28. The study was undertaken beginning in 1996 and was sponsored jointly by DCA and the Army Corps of Engineers ("the Corps") and involved 38 separate state and federal agencies. The study modeled a series of future development scenarios, as well as redevelopment and restoration scenarios. 2 0 29. The Final Report9 of the Florida Keys Carrying Capacity Study 0 ("FKCCS") was issued in September 2002. The major findings include the CD following: W • Development suitability in the Florida Keys is extremely restricted, due to the following characteristics: Existing development has c 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 c private lands are wetland parcels, and i development suitability of remaining lands is low or marginal due to open space requirements, lack of infrastructure, and other factors. • 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 E potable water withdrawals was exceeded in c 1999 and 2000; improvement of hurricane evacuation clearance times is dependent on y 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 E testimony of Rebecca Jetton, no other final report was issued by the study sponsors. 12 Packet Pg. 3567 S.1.h 0. habitats; and residential capacity is limited to 6,000 units in order to maintain the state- mandated level of service for roadways. • All six future scenarios would result in disproportionate increase in government expenditures with respect to increased population, which will require increased taxation on both local residents and tourists. • The existing data "are insufficient to establish quantitative, predictive relationships between land use or development and the marine 2 environment." The study documented human impacts to the marine ecosystem and species. The study underscores the benefits of wastewater treatment, "but other impacts are W more related to resource management than to land development." 30. The study provides the following four major guidelines for future development in the Florida Keys: 1. Prevent encroachment into native habitat. A wealth of evidence shows that terrestrial habitats 0 and species have been severely affected by �I development and further impacts would only exacerbate an already untenable condition. CD 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 and management activities in the Florida Keys National Marine Sanctuary, and restoration efforts throughout the Keys. 0 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. 3568 S.1.h 0. 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. c 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 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 4- support future comprehensive plan amendments and revisions of land development regulations. 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 c provisions in their comprehensive plans to "protect the public safety and 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 2 enforced by the state through review of local government plan amendments. CD See § 380.0552(9)(a)2., Fla. Stat. ROGO and BPAS 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 E current version of the administrative rule approving the County's 0 comprehensive plan is rule 28-20.140, which also governs and approves y 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. 3569 S.1.h 0. minimum of 71 units allocated for affordable housing and a maximum of 126 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 > 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 0 approval authority of the Administration Commission, and are subject to 0 similar work plans to implement the remedial measures required by the CD commission. The applicable administrative rules are chapter 28-19 for W Islamorada and chapter 28-18 for Marathon. 35. Marathon and Islamorada have permit allocation requirements 0 similar to Monroe County, known as the Building Permit Allocation System (`SPAS"). Their respective administrative rules provide the annual maximum number of permits and the split between affordable and market rate units, as 0 U well as the rules governing rollover of unused allocations." 2 36. BPAS is a competitive system. Permit applications are awarded points based on their alignment with specific development criteria, such as presence CD or absence of wetlands or protected habitat, and availability of public 0 services. Those applications with the highest points are awarded available permits for the BPAS year. 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. w 11 Marathon's annual cap is 30 units and Islamorada's is 28 (22 market rate and 6 affordable E housing). 15 Packet Pg. 3570 S.1.h 0. Work Pro,-,ram 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 example, with respect to environmentally-sensitive lands, Islamorada was required to apply for land acquisition funds, while Marathon was required to c apply and adopt land development regulations limiting permit allocations in 0 high quality habitats. Monroe County was required to adopt conservation CD planning mapping into its comprehensive plan. W 39. The wastewater implementation and wastewater project implementation sections of the work programs are of high importance. The 0 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, 0 U 2,800 cesspits, and at least 249 small package treatment plants. 2I 40. The work program represents a monumental, long-term, and expensive12 infrastructure project to build a central sewer system in the Keys, followed by a program to require existing developments to connect to 4- 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 construction of, each component of the sewer system, as well as specific target c 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 said projects in the 2017/2018 year. E U 16 Packet Pg. 3571 S.1.h 0. 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 c 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 documenting "the degree to which work program objectives for the work program year[13] have been achieved." 0 43. Achievement of work program objectives is directly tied to the BPAS 0 and ROGOif the Administration Commission finds that work program CD objectives have not been achieved, it can reduce the unit cap for residential W 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 0 areas served by central sewer. Each application for building permit is awarded an additional four points15 if the parcel is served by central sewer meeting statewide treatment standards. c U 44. In the 2017 ACSC annual report, the most recent report for which the 21 parties requested official recognition, Islamorada reported it had connected 85 percent of potential customers (with another five percent in the CD application process), Marathon had connected 97 percent, and Monroe 0 County had an overall connection rate of 86 percent (with higher percentages for specific individual treatment facilities). 0 U 13 The work program year runs from July of one year to June of the following year. 2 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. 3572 S.1.h 0. 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 c 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 West comprehensive plan and land development regulations are approved by the state through Florida Administrative Code Chapters 28-37 and 9B-30. 0 47. Key West is subject to separate principles for guiding development 0 than the Florida Keys ACSC, which are found in rule 28-36.003. Key West is CD served by central sewer and does not have work program tasks. W Hurricane Evacuation Clearance Time 48. The work program requires the local governments within the Florida 0 Keys ACSC to enter into a Memorandum of Understanding ("MOU") with the DEO, the Division of Emergency Management, and each of the other Keys local governments, to stipulate to the input variables and assumptions for 0 U utilizing the Florida Keys Hurricane Model, or other models acceptable to 2I DEO, to accurately depict hurricane evacuation clearance times for the population in the Keys. The work program required, by July 1, 2012, the local CD 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 c U (the "Work Group") including members of each of the six local governments 2 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 inputs—census data, behavioral studies, hurricane forecasting, military 18 Packet Pg. 3573 S.1.h 0. evacuation procedures, traffic flow rates, and number and location of vacant platted lots. 50. The Work Group selected the Division of Emergency Management's c 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 0 occupancy rate, and participation rate of residents in those units, among 0 other important variables. The inputs and assumptions were tested by CD modeling over 100 evacuation scenarios. W 51. The Work Group presented its findings on June 8, 2012, and selected evacuation scenario M5, which provided for continuation of then-existing 0 annual building permit allocations that were adopted by rule or comprehensive plan amendment (with the exception of Key Colony Beach and Key West). Scenario M5 produced an evacuation clearance time of 24 hours 0 with a future allocation of 3,550 new residential building permits. 2I 52. Notably, scenario M5 assumed that military, mobile home residents, and tourists would evacuate during Phase I of what DEO described as a two- CD 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 c U predicted an evacuation clearance time of 16 hours and 30 minutes for 2 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 evacuate 30 hours in advance, giving those residents six hours of lead time to 19 Packet Pg. 3574 S.1.h 0. 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 c 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 to assess and determine the remaining allocations for the [ACSC]" and recommend revisions to the allocation rates and distribution of allocations to 0 the six local governments, as well as any recommended changes to the local 0 government comprehensive plans. DEO completed that task, and determined CD that a maximum of 3,550 additional units could be distributed over the next W ten years, beginning in July 2013. 56. On November 5, 2012, Monroe County, Marathon, Islamorada, Key 0 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 TIME model, as well as the data, input variables, and assumptions to be 0 U utilized in model runs. The following "whereas" clause succinctly provides the 2I 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 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 0 site-built units; the exclusion of 870 dwelling units 2 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. 3575 S.1.h 0. Local Governments based upon the Local Governments' ratio of vacant land. N 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. a 58. The MOU also memorializes the following staged evacuation procedure: .� • Approximately 48 hours in advance of tropical storm winds, mandatory c evacuation of non-residents, visitors, RVs, travel trailers, live-aboard 4- 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 0 permanent residents by evacuation zone.[16] 59. The phased evacuation procedure is also adopted in each of the local government comprehensive plans, except Key West, which adopted the c U procedure by resolution. 2 Affordable Housin, CD 60. The need for additional affordable housing in the Keys is well documented, and the parties stipulated, generally, to the need. 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 E estate and housing throughout the Florida Keys. The need for affordable housing was exacerbated by Hurricane Irma, which made landfall in the y Florida Keys in September of 2017 and destroyed approximately 400 mobile 16 There are five hurricane evacuation zones in the Keys designated by mile marker numbers E along US 1. 21 Packet Pg. 3576 S.1.h 0. homes, "permanent RV's," and ground-level single-family homes that served 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 regulatory framework for planning in the Keys. 64. The litigation over the Monroe County comprehensive plan 0 highlighted a deficit of affordable housing in the Keys. Among the Principles 0 is the requirement to "[make] available adequate affordable housing for all CD sectors of the population" of the Keys. § 380.0552(7)(1), Fla. Stat. When W designating the ACSC, the Legislature expressed the intent to "[p]rovide affordable housing in close proximity to places of employment" in the Keys. 0 § 380.0552(2)(d), Fla. Stat. The Keys Workforce Housing Initiative 65. Shortly after Hurricane Irma, Marathon began discussions with DEO 0 U about the possibility of obtaining additional building permit allocations for 2I workforce-affordable housing. 66. In November 2017, Marathon passed Resolution 2017-99 requesting CD the allocation of 300 affordable housing allocations from DEO with approval 4- 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 housing in the Florida Keys. As a result, DEO developed the Keys Workforce c U Affordable Housing Initiative (the "Housing Initiative") to allow up to 2 1,300 new building permit allocations for workforce housing throughout the Florida Keys, with an initial allocation not to exceed 300 per local LU government. 22 Packet Pg. 3577 S.1.h 0. 68. Under the Housing Initiative, the additional units are to be deed- ® restricted for workforce affordable housing and required to evacuate in Phase I, along with tourists, visitors, mobile home residents, and military c 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 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 c Initiative "will not interfere with the 24-hour evacuation model and satisfies 0 the statutory mandate to provide affordable housing." CD 70. Following approval by the Administration Commission, DEO worked W with Marathon and other local governments to amend their comprehensive plans to implement the Housing Initiative. 0 The Plan Amendments 71. The Marathon Plan Amendment creates a new Future Land Use ("FLU") goal stating the intent to participate in the Housing Initiative 0 U approved by the Administration Commission. It further creates a new FLU 2I Objective establishing a "new limited category" of building permit allocations known as "Affordable — Early Evacuation Pool" providing 300 workforce CD affordable building permit allocations in addition to the allocations identified 0 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 followed and the distribution is based on the BPAS ranking procedures in c U effect. 2 72. The second policy provides the following "Specific Standards and Requirements for Workforce Affordable Housing": Affordable-Early Evacuation residential units under this program shall: E 23 Packet Pg. 3578 S.1.h 0. a. be multifamily structures; b. be rental units; 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; 0 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 W 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; i. ensure accessibility to employment centers and amenities; and c i J. require deed-restrictions ensuring: CD (1) the property remains workforce-affordable housing in perpetuity; 0 (ii) tenants evacuate during the period in which transient units are required to evacuate; (iii) rental agreements contain a separate E disclosure requiring renters to acknowledge that c failure to adhere to the evacuation requirement could result in severe penalties, including eviction, y to the resident; and (iv) on-site property managers are formally trained in evacuation procedures. 24 Packet Pg. 3579 S.1.h 0. 73. The third policy exempts from the early evacuation requirement all first responders, correctional officers, health care professionals, or other first- response workers required to remain during an emergency. c 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 documenting the number of workforce-affordable housing units built, occupancy rates, and compliance with the early evacuation requirement. The c report is to be included in the DEO annual work program report to the 0 Administration Commission. CD 76. Islamorada's plan amendment provides 300 workforce-affordable W building permit allocations in addition to the allocations identified in 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- affordable building permit allocations "as well as any additional allocations 0 U which may be authorized by the Florida Administration Commission or 2I 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- 0 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 ranking unless the number of applications received exceeds the authorized allocation. There are also two minor differences in the "Standards and c U Requirement for Workforce-Affordable Housing" in the Key West Plan 2 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 25 Packet Pg. 3580 S.1.h 0. Amendment is virtually identical to that adopted by Marathon and Islamorada. Petitioners' Challenyes c 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. Hurricane Evacuation 0 79. Petitioners posit that the Plan Amendments violate the Principles and 0 the MOU17, and render the local government comprehensive plans internally 0 inconsistent, by exceeding the requirement to evacuate the Keys permanent CD population in no more than 24 hours. Petitioners also argue the plan W amendments are not supported by adequate data, and a professionally- acceptable analysis thereof, on hurricane evacuation clearance times. 0 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- established maximum buildout of 3,550 units through the year 2023. That 0 U buildout number was derived directly from the Work Group after agreement 2I 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 CD evacuation of permanent population within 24 hours. 4- 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 implemented, the evacuation plan requires some permanent residents— c residents of mobile homes, "permanent RVs," live-aboard vessels, and 2 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. E 26 Packet Pg. 3581 S.1.h 0. That requirement is incorporated into the local government comprehensive plans which have previously been found to be "in compliance" meaning both internally consistent and consistent with the Principles. c 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 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 0 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. CD 83. Specifically, Mr. Ogburn, who was at the time employed by the South W Florida Regional Planning Council, extracted demographic data from the 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 0 regional evacuation model, Mr. Ogburn discovered some blank cells within 2I the census block group data sets in the original spreadsheet he had created for DEO. The missing information was the number of vehicles identified CD within those specific census block groups. With respect to Monroe County, eight of the 76 block groups were missing vehicle data. 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 for purposes of updating the statewide regional model. In 2014, Mr. Ogburn c U reported the census data errors to DEO, which requested he rerun scenario 2 M5 after including the missing vehicles. The result was an increase of two- Uj 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. E 27 Packet Pg. 3582 S.1.h 0. and-a-half hours for evacuation of Phase IIa total clearance time of 26.5 hours. 86. Mr. Ogburn testified that, based on the best-available data on c 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 exacerbate the problem. 87. Petitioners introduced other evidence aimed at tearing down the 0 conclusion of the Work Group that the Keys could be safely evacuated in 0 under 24 hours, based on the 2012 TIME model runs. For example, CD Mr. Ogburn questioned the vacancy rates utilized by the Work Group, which W he described as "most likely" too high. Mr. Ogburn cast doubt on the 100% participation rate assumption, and the assumed 12-hour response 0 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 order was given at 7:00 a.m. Petitioners likewise introduced evidence casting 0 U doubt on the ability of meteorologists to predict storms with accuracy 48 2 i hours in advance of landfall. 88. The Keys local government comprehensive plans, as adopted with use CD of the TIME model, and all underlying assumptions and inputs, have 0 previously been determined to be "in compliance." The question of whether those assumptions and model inputs are supported by data and analysis is not properly before the undersigned in this proceeding. The evidence was, for the most part, irrelevant.19 c U 89. The Housing Initiative is grounded on the availability of evacuation 2 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 m data and analysis supports the 24-hour evacuation clearance time cap. 28 Packet Pg. 3583 S.1.h 0. 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 the data for Phase II, and that if the units are presumed to evacuate in c 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: 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 would cause the clearance times in the original c phase to increase significantly.[201 CD 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 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 0 planning, including roadway capacity issues related to hurricane evacuation. i Mr. Vargas participated in hurricane evacuation modeling in the Keys in the 1990s to determine potential roadway improvements that could reduce Keys CD CD evacuation clearance time. Mr. Vargas was the principal author of the "Miller 0 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 simultaneously in order to identify where roadway improvements would 0 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. 3584 S.1.h 0. 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 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 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 0 the more recent 2010 data, which Mr. Vargas admitted "w[ould] provide more CD accurate information," and included inaccurate data, such as non-existent W lane segments which inflated capacity on some roadway segments. While Mr. Vargas expressed the opinion that the Miller Model is superior because it 0 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 determine maximum buildout in the Keys. 0 U 96. Mr. Ogburn completed a run of the TIME model in 2014 which 2I 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 CD 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 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 24 hours of a 48-hour evacuation scenario. c U 97. The preponderance of the evidence does not support a finding that the 2 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, 30 Packet Pg. 3585 S.1.h 0. Petitioners alleged the Plan Amendments are inconsistent with the following provisions of Respondents' comprehensive plans: Marathon: c • 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- le • FLU Objective 1-3.5, requiring Marathon to "manage the rate of new development to ... support safe and timely evacuation prior to a hurricane." • Conservation and Coastal Element Policy 4-1.21.2, requiring Marathon 0 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. i • Intergovernmental Coordination Element ("ICE") Objective 5-1.1 CD requiring Marathon to maintain coordination mechanisms with the comprehensive plans of Monroe County and adjacent municipalities. 0 • 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. E 31 Packet Pg. 3586 S.1.h 0. • Policy 5-1.2.10), requiring Marathon to enter into interlocal agreements or develop joint resolutions in areas of mutual concern, including the coordination of hurricane evacuation plans. c 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[.]" 0 • Transportation Element ("TE") Policy 2-1.2.8, which requires 2 Islamorada to "address long-term strategies to reduce clearance time and coordinate permit allocations" by implementing specifically-listed c programs with FDOT, FDCA, and other local governments in the Keys. • TE Policy 2-1.2.9, which provides for the staged/phased evacuation procedure to maintain a 24-hour hurricane evacuation clearance time. c • TE Policy 2-1.2.10, which requires Islamorada to "support state funding for the update of the hurricane evacuation model that 0 considers the impact of Miami-Dade County on evacuees[.]" i • TE Policy 2-1.6.3, by which Islamorada "adopts 24 hours as the CD 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]." 0 • Coastal Management Element ("CME") Objective 5-1.9, requiring Islamorada to "avoid population concentrations in the coastal high hazard area." 32 Packet Pg. 3587 S.1.h 0. • CME Policy 5-1.10.2, requiring Islamorada to "coordinate with Monroe County in emergency preparedness." • CME Objective 5-1.15, requiring Islamorada to "ensure c intergovernmental coordination within the coastal area." • ICE Objective 8-1.1, requiring Islamorada to "ensure intergovernmental coordination." c • ICE Policy 8-1.2.1, titled "Coordinate Development and Growth Management Issues." 0 • ICE Policy 8-1.2.8, titled "Implement Intergovernmental Coordination." Key West: • FLU Objective 1-1.16, requiring Key West to "regulate the rate of 0 population growth commensurate with planned increases in evacuation capacity in order to maintain and improve hurricane E 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 CD 24 hours for permanent residents." 0 • CME Goal 5-1, "Protect human life and limit public expenditures in 0 areas subject to destruction by natural disasters[.]" • CME Objective 5-1.6, requiring Key West to "coordinate with the State, 0 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. 3588 S.1.h 0. • ICE Policy 8-1.1.3, which reads, in pertinent part, as follows: N 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 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 W 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 c implement the hurricane and transportation conclusions and policies relative to residential units' allocation which are adopted by Monroe E County and all municipalities as described in the c [MOU] dated July 14, 2012. i 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 CD Policies 4-1.21.2, 5-1.1.(2), 5-1.1.10, and 5-1.2.1.3. 100. Petitioners did not prove the Islamorada Plan Amendment is 0 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- 1.15; and Objective 8-1.1 and Policies 8-1.2.1 and 8-1.2.8. c 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. 3589 S.1.h 0. 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 clearance time for permanent residents of no more than 24 hours." c 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. Petitioners' concerns fall into two categories which were the focus of the FKCCS: nearshore water quality and ecological impacts. 0 Nearshore Water Quality of the Florida Keys 0 104. Petitioners claim that the nearshore water quality of the Keys was CD determined over 25 years ago to have exceeded its capacity to assimilate W additional nutrients, that it remains nutrient-impaired today, and that the additional development authorized under the Plan Amendments will further 0 increase nutrient pollution from additional wastewater and stormwater associated with development. 105. In 1990, Congress created the Florida Keys National Marine 0 U Sanctuary ("FKNMS"), and required development of a Water Quality 2I Protection Program ("WQPP"), establishing comprehensive, long-term monitoring of water quality in the FKNMS.Under the Water QualityCD Monitoring Project ("WQMP"), water quality has been monitored quarterly at 0 approximately 150 sampling stations since 1995. 106. In 1997, the Governor and Cabinet approved the FKNMS Management Plan for implementation in state waters, and required annual reports from the FKNMS. c U 107. The 2011 FKNMS annual report stated that, "in general, water 2 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 is diluted by low nutrient ocean waters," and that "[a]nalysis of monitoring 35 Packet Pg. 3590 S.1.h 0. 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, c 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." 108. In 2008, the Environmental Protection Agency ("EPA") developed Strategic Targets for the WQMP, setting limits for DIN (dissolved inorganic 0 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 CD "essential to promote coral growth and overall health." Future sampling was W 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. 0 U 109. In 2015, FKNMS reported that an average of all stations (excluding 2I 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 CD meeting or exceeding the target for TP in 2011 through 2015, while falling 0 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 c U at .0058, well below the target of.008. In 2018, FKNMS reported the stations 2 meeting or exceeding the target for both nutrients. Again, in 2018, FKNMS reported "very good water quality with median concentrations of TP at LU .0051, lower than the 2017 level, and again well below the EPA target. 36 Packet Pg. 3591 S.1.h 0. 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 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. 112. The 2014 report documented elevated nutrient concentrations of DIN and TP in waters close to shore along the Keys, attributable to "human 0 impact." 0 113. The 2015, 2017, and 2018 reports exclude the data from the SHORE CD stations for purposes of demonstrating compliance with target values because W they "introduce a bias to the dataset which results in a reporting problem[.]"21 0 114. The 2017 report does include an analysis of the geographic differences between testing stations. The report indicates a significant difference between the median levels of nutrients sampled in SHORE 0 U stations when compared with the "alongshore," "channel," and "reef' stations. 2I 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 CD level of TP, which the report recognizes as one of the most important 0 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 c impaired. Petitioners' planning expert, Ms. Jetton, defined nearshore as 2 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 said data by Kathleen McKee. That evidence was admitted as hearsay only, and was not corroborated by any non-hearsay evidence. E 37 Packet Pg. 3592 S.1.h 0. shore. The 2017 report breaks out the "alongshore" stations as well as the 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 c 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) in both surface and bottom waters throughout the Keys, and declining turbidity in the surface waters, for the 24-year period from 1995 through 0 2018. Increased DO is beneficial for animal life. Declining turbidity means 0 the water is becoming clearer. The 2014 report showed no significant trends CD in TP, but the 2018 report noted small, but significant, declining trends in TP W values in most surface waters.22 117. In 1995, the EPA and the Department of Environmental Protection 0 ("DEP") listed the Keys waters as "impaired," pursuant to the Clean Water Act.23 DEP is required to establish Total Maximum Daily Loads ("TMDLs") for impaired water bodies, which define the maximum pollutant loading that 0 U can be discharged to those water bodies while still achieving water quality 2I targets. An alternative mechanism, a Reasonable Assurance Document ("RAD") can be developed in lieu of TMDLs when, as in the Keys, local CD management activities are planned to achieve water quality targets. 0 118. 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 e U background within the HALO zone, which is 500 meters of shore, not 2 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. E 23 33 U.S.C. § 1251 et seq. 38 Packet Pg. 3593 S.1.h 0. (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 c 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 targets to be achieved by each project. 119. The FKRAD focuses on TN (total nitrogen) and TP, and establishes 0 different water quality target values than the FKNMS. For the HALO Zone 0 the target is an "as insignificant increase above natural background for each CD nutrient." "Insignificant" is defined as less than ten micrograms per liter W (<10 µg/1) of TN, and < 2µg/l for TP. 120. Petitioner's planning expert, Ms. Jetton, testified that the 2018 0 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 meeting the strategic targets[.]" Ms. Jetton concluded, based on the 2018 0 U Update to the FKRAD, that "there should be no more development added to 2I [the Keys] until the [WBIDs] can consistently meet their strategic targets." She further testified that the RAD documents identify the Keys' waters as CD not meeting the DEP necessary levels of nutrients for healthy waters and 0 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." 121. That testimony is unreliable. The purpose of the 2018 Update is plainly set forth in the document itself: to document actions taken by c U stakeholders since 2011 and to address the DO impairment identified by DEP 2 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. 39 Packet Pg. 3594 S.1.h 0. 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 target—insignificant increases above natural background—has been c 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." Injection Wells and Nearshore Water Quality 2 0 123. Absent concrete evidence to support Petitioners' claim that the 0 nearshore waters have not recovered from their 1995 impaired designation CD such that they can assimilate pollutants from additional development, W Petitioners argue that the existing "improved" wastewater and stormwater treatment infrastructure in the Keys does not adequately protect marine and 0 coastal resources of the Keys, and that the addition of new development will exacerbate the problem. Specifically, Petitioners posit that shallow wastewater injection wells degrade nearshore water quality. 0 U 124. Marathon injects treated wastewater effluent into shallow injection 2I wells, which are drilled to a depth of at least 90 feet and cased to a minimum depth of 60 feet. CD 125. Marathon's five injection wells are permitted to, and currently operate at, a permitted capacity of .200 million gallons per day ("MGD"), .400 MGD, .200 MGD, .500 MGD, and .450 MGD, respectively. Marathon's injection wells are designed and permitted to exceed full build out. 126. Key West injects its treated wastewater effluent into deep injection c 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 E quality of the nearshore waters of Key West or the Florida Keys. 40 Packet Pg. 3595 S.1.h 0. 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 permitted capacity for its injection wells. c 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 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 0 and operates at a permitted capacity of 2 MGD. The injection wells at the 0 Key Largo Wastewater Treatment facility are designed and permitted to CD exceed full build out. W 130. Ms. Jetton testified that, based on reports she has reviewed, when you inject effluent into shallow injection wells, that water will reach the 0 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 based her opinions. She further referred to findings in the Administration 0 U Commission's 1995 Final Order that deep water injection wells are a better 2I form of treatment than shallow injections wells. Finally, Ms. Jetton pointed to the 2014 and 2017 FKNMS reports as evidence that shallow well injections CD may contribute to nutrients in nearshore waters. 0 131. The excerpt of the 2014 report introduced in evidence contains no reference to a relationship between shallow injection wells and the water quality of nearshore waters. The 2017 report mentions there may be a connection. 0 U 132. Respondents introduced the testimony of Michael C. Alfieri, who is a 2 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. 41 Packet Pg. 3596 S.1.h 0. Mr. Alfieri main practice in Florida is in karst hydrogeology, and he is one of the authors of the definitive text in Florida on karstology. 133. Mr. Alfieri testified that the subsurface conditions in Marathon, as c 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.26 134. Based on his knowledge and experience, Mr. Alfieri testified that treated wastewater or stormwater injected down a shallow injection well does c 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 CD shallow well, it undergoes geochemical reactions as it interacts with, and is W absorbed by, the surrounding rock, which reduces nutrient concentration. 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 surrounding geological features, including the confining layers, which are 0 U horizontally transmissive, the additional residential units authorized by the 2I Plan Amendments would have no impact on nearshore waters of the Florida Keys. CD 136. The undersigned finds Mr. Alfieri's testimony more persuasive and reliable than Ms. Jetton's recounting of studies undertaken by other 0 professionals. 137. On the theory that injected treated effluent contaminates the nearshore waters of the Keys, Petitioners allege the Plan Amendments c 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. 26 The parties stipulated that deep injection wells"do not have a quantified impact on the E water quality of the nearshore waters of Key West or the Florida Keys." 42 Packet Pg. 3597 S.1.h 0. render Respondents' comprehensive plans internally inconsistent with the following policies, respectively: Marathon c • 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[.]" c • IE Goal 3-2: "[Marathon] shall provide for environmentally ... sound 2 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[.]" • IE Objective 3-2.2: "[Marathon] shall regulate land use and c development to ... protect the functions of natural drainage features and groundwater from the impacts of wastewater systems." Islamorada c U • FLU Goal 1-1, which provides in pertinent part, as follows: 21 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 induced activities do not diminish assets of our 0 unique coastal environment; and provides a sound 2 basis for developing land use controls that ... protect coastal resources, including nearshore waters, wetlands, grassbed flats, mangroves... and establish a basis for managing ... water quality[.] 43 Packet Pg. 3598 S.1.h 0. • 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 intensity of those activities that cause the adverse impact." 2 0 4- Key West • FLU Goal 1-1: "Minimize Threats To Health, Safety, And Welfare 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 and limit public expenditures in areas subject to destruction by natural 0 disasters[J" i • CME Objective 5-1.1: "Protect Coastal Resources, Wetlands, Estuarine CD Salt Pond Environmental Quality, Living Marine Resources, And 0 Wildlife Habitats. ... (1) Preventing potentially adverse impacts of development and redevelopment on wetlands, estuaries, water resources, living marine resources, and other natural resources; (2) Maintaining or improving coastal environmental quality by 0 improving stormwater management[.]" 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 building permits allocated annually in accordance with the implementing policies." E 44 Packet Pg. 3599 S.1.h 0. • CME Policy 5-1.1.4: "Protect Living Marine Resources, Coastal Marsh, 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 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 0 improvements shall also be carried out to reduce potential adverse 2 impacts on the coral reef. In amending its land development regulations, the City shall consider the establishment of additional c protective policies for coral." • 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 safety." 0 • CE Objective 6-1.2: "Detrimental water quality impacts, including i adverse impacts to the coral reef system shall continue to be combated by public facility improvements identified in the Public Facilities CD Element .... Monitoring Measure: Achievement of water quality ... 4- standards." 0 138. Respondents' wastewater treatment plants are in compliance with their DEP wastewater treatment plant and injection well permits. 139. Furthermore, there have been no violations of the permits for 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. 3600 S.1.h 0. operation of the wells will not cause or contribute to a violation of surface water quality standards and will not harm environmental resources. 141. Petitioners did not prove that the Marathon Plan Amendment is c 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, Goal 6-1, and Objective 6-1.9. 143. Petitioners did not prove the Key West Plan Amendment is internally 0 inconsistent with Key West Comprehensive Plan Goals 1-1 and 5-1; Objective 0 5-1.1 and Policies 5-1.1.4, 5-1.2.2, and 5-1.4.1; and Objective 6-1.2. CD Ecolo,ical Impacts W 144. Petitioners maintain the Plan Amendments are not supported by the best available data on the ecological carrying capacity of the Keys with 0 regard to habitat protection. 145. The FKCCS recommended four guidelines for future development in the Keys: (1) prevent encroachment into native habitat; (2) continue and 0 U intensify existing programs (e.g., land acquisition, wastewater treatment); 2 i (3) focus future growth on redevelopment and infill; and (4) increase efforts to manage the resources. CD 146. Since the FKCCS was published in 2002, the local governments in 0 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 lands to remove them from potential development. c U 147. Furthermore, the BPAS system integrates environmental concerns 2 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 LU infill lots with existing paved roads, water, and electric service. The Plan affords the least weight to applications on lots containing sensitive areas as 46 Packet Pg. 3601 S.1.h 0. 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 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 "except where State and/or federal agencies having jurisdiction provide for development rights." 0 149. The Islamorada comprehensive plan mandates that new development 0 preserve "all undisturbed wetlands" and 90 percent of high quality tropical CD hardwood hammocks on the parcel being developed. The Islamorada W comprehensive plan also discourages development of lots containing both disturbed and undisturbed habitats by applying the most stringent open 0 space requirements to development sites containing the highest quality habitats. For example, the minimum open space requirement for high quality hammock is .90; while for undisturbed saltmarsh and buttonwood wetlands, 0 U as well as undisturbed mangrove and freshwater wetlands, the ratio is 1.0. 21 The plan requires an open space ratio of .90 for disturbed saltmarsh and buttonwood wetlands, as well as disturbed mangrove and freshwater CD wetlands. 0 150. 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 the provision of the Plan Amendments which provides that the workforce c 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. E 47 Packet Pg. 3602 S.1.h 0. 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 c 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 impossible to permit the new affordable units on any lot designated hardwood hammock. 2 0 152. Further, the Marathon BPAS weighting system will apply to the new 0 allocations,29 which will continue to direct development to scarified lots, and CD those lots with maximum disturbed areas. The Islamorada plan open space W requirements will apply to disincentivize development of parcels with high quality hammock, buttonwood wetlands, and freshwater wetlands, by 0 requiring the most stringent open space ratios. 153. Petitioners did not prove the Plan Amendments are not based on data and analysis of the ecological carrying capacity of the Keys. 0 154. Petitioners allege that the Plan Amendments are internally �I inconsistent with the following provisions of the Marathon and Islamorada plans relating to ecological concerns: CD Islamorada: 0 • 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 0 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 E evacuation units from the BPAS. 48 Packet Pg. 3603 S.1.h 0. 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 coastal environment[.] c • 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." 2 • Goal 6-1: "Islamorada ... shall conserve, manage, use and protect the natural and environmental resources ... based on their carrying c capacity limitations to ensure continued resource availability and environmental quality." • Policy 6-1.4.4: "Islamorada ... shall use the best available technical c criteria and information to formulate regulations and ordinances which shall ensure that future development is compatible with the functioning and carrying capacity of existing natural systems and 0 resources conservation." 21 Marathon CD • 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. 156. Petitioners did not prove the Islamorada Plan Amendment is 0 U internally inconsistent with Goal 1-1, Policy 2-1.9.3, Goal 6-1, and 2 Policy 6-1.4.4. Other Contentions 157. Petitioners alleged the Plan Amendments violate section 163.3177(6)(a)2., which reads, in pertinent part, as follows: 49 Packet Pg. 3604 S.1.h 0. 2. [P]lan amendments shall be based upon surveys, studies, and data regarding the area, as applicable, including: a. The amount of land required to accommodate c anticipated growth. b. The projected permanent population of the area. c. The character of undeveloped land. d. The availability of water supplies, public facilities, and services. c 2 e. The need for redevelopment, including renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with CD the character of the community. W 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. c i. The need for job creation, capital investment, and economic development that will strengthen and diversify the community's economy. CD j. The need to modify land uses and development patterns with antiquated subdivisions. (emphasis added). 0 158. Many of the listed criteria are not applicable to the Plan Amendments because the Plan Amendments do not propose a specific type of c 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 E 50 Packet Pg. 3605 S.1.h 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 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 161. The Division of Administrative Hearings has jurisdiction over the subject matter and parties hereto pursuant to sections 120.569, 120.57(1), 0 and 163.3184(5), Florida Statutes (2019). 0 162. To have standing to challenge or support a plan amendment, a CD person must be an "affected person," as defined in section 163.3184(1)(a). W 163. Petitioners are all "affected persons" with standing to bring this action pursuant to 163.3184(1)(a). 0 164. "In compliance" means "consistent with the requirements of §§ 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 0 U development in designated areas of critical state concern and with part III of 2I chapter 369, where applicable." § 163.3184(1)(b), Fla. Stat. 165. Respondents' determinations that the Plan Amendments are "in CD compliance" are presumed to be correct and must be sustained if the 4- determinations of compliance are fairly debatable. See § 163.3184(5)(c), Fla. Stat. 166. "The `fairly debatable' rule is a rule of reasonableness; it answers the question of whether, upon the evidence presented to the [government] body, c U the [government's] action was reasonably-based." Lee Cty. u. Sunbelt 2 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)). LU 51 Packet Pg. 3606 S.1.h 0. 167. The mere existence of contravening evidence is not sufficient to 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, a 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 weight or credibility to the City's witnesses. c CD 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 of the evidence. See § 120.57(1)0), Fla. Stat. 0 The MOU 169. Petitioners allege, as grounds for finding the Plan Amendments not in compliance," that the Plan Amendments are inconsistent with the MOU. c U Petitioners' allegations of inconsistency with the MOU are not well taken. 2I 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 CD 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 plan amendment is consistent with sections 163.3162, 193.461, 823.14, Florida Statutes, and Florida Administrative Code Rules 6213-33 and 40E-8 are not compliance issues); Cemex Constr. Materials Fla. u. Lee Cty., Case c U No. 10-2988 (Fla. DOAH Feb. 21, 2012; Fla. DCA Apr. 10, 2012) (whether 2 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 development regulations is not a compliance issue); Emerald Lakes Residents' 52 Packet Pg. 3607 S.1.h 0. Ass'n v. Collier Cty., Case No. 02-3090 (Fla. DOAH Feb. 10, 2003; Fla. DCA May 8, 2003) (whether plan amendment was adopted in conformity with procedural requirements of section 163.3185(15)(c) is not a compliance issue); c 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 Amend but Striking Portions of Amended Pet.) (striking Petitioners' claims that plan amendment is not consistent with Florida Administrative Code 0 Rule 9J-11 because the provisions are not compliance criteria); and Pyle u. 0 City of St. Pete Beach, Case No. 08-4772 (Fla. DOAH Jan. 28, 2009, Order on CD Mot. to Strike) (requirement to submit a "complete" plan amendment package W pursuant to section 163.32456 is not a compliance issue). 170. 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, 0 U outside of the statutory plan amendment process. 2I Internal Inconsistences 171. Section 163.3177(2) mandates "the several elements of the CD comprehensive plan shall be consistent." 4- 172. 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 of nearshore waters, wastewater treatment, or habitat protection. c U 173. Petitioners did not prove beyond fair debate that the Plan 2 Amendments are inconsistent with section 163.3177(2). Data and Analysis 174. Section 163.3177(1)(f) requires plan amendments to be "based upon relevant and appropriate data and analysis" by the local government, and 53 Packet Pg. 3608 S.1.h 0. includes "surveys, studies, community goals and vision, and other data available at the time of adoption." 175. To be based on data "means to react to it in an appropriate way and c 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 the Plan Amendments are not supported by adequate data and analysis, or fail to react to professionally-acceptable data in an appropriate way. 2 0 177. Petitioners did not prove beyond fair debate that the Plan 0 Amendments are inconsistent with section 163.3177(1)(f). CD Principles for Guidin, Development W 178. "In compliance" is defined to include consistency with the Principles, which apply to both Marathon and Islamorada.30 Petitioners alleged the Plan 0 Amendments are inconsistent with section 380.005(9), which requires plan amendments comply with the requirement to "maintain[] a hurricane evacuation clearance time for permanent residents of no more than 24 hours." 0 U Based on the foregoing Findings of Fact, it is at least fairly debatable that the 2I Plan Amendments will not cause evacuation clearance time of the ACSC to exceed the 24-hour evacuation clearance time. CD 179. Furthermore, the Principles "may not be construed or applied in 4- 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 and Islamorada Plan Amendments is to "[m]ake[] available adequate c U affordable housing for all sectors of the population of the Florida Keys." 2 § 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 LU 30 The Principles for Guiding Development in the Key West ACSC make no reference to m hurricane evacuation clearance times. See Fla. Admin. Code R. 28-36.003. 54 Packet Pg. 3609 S.1.h 0. 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. c 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 capabilities for managing land use and development"; "[p]rotect ... the public health, safety, welfare, and economy of the City of Key West, and [maintain] 0 Key West as a unique Florida Resource"; and adopt an "evacuation plan 0 consistent with regional and [Monroe] County plans ... which provides an CD opportunity for residents and visitors to evacuate to a place of safety during a W natural disaster," respectively. 181. Based upon the foregoing Findings of Fact, Petitioners did not prove 0 beyond fair debate that the Key West Plan Amendment is inconsistent with the listed Principles. Other Contentions 0 U 182. Petitioners raised additional arguments, which were likewise not 2I proven beyond fair debate. 183. Petitioners alleged the Plan Amendments violate section CD 163.3177(6)(a)2., which requires consideration of specifically-listed types of 4- 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 c U public school and first-responder services—during plan review and adoption. 2 184. Based on the foregoing Findings of Fact, Petitioners did not prove, beyond fair debate, that the Plan Amendments are inconsistent with section LU 163.3177(6)(a)2. 55 Packet Pg. 3610 S.1.h 0. 185. Petitioners contend the Plan Amendments were inconsistent with section 163.3177(6)(a)8., which requires, as follows: 8. Future land use map amendments shall be based upon the following analysis: c 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 character of the undeveloped land, soils, c topography, natural resources, and historic resources on site. (emphasis added). 0 186. The cited statutory section is inapplicable to the Plan Amendments CD because they are not future land use map amendments. W Conclusion 187. 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). 0 RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final CD order determining the City of Marathon Comprehensive Plan Amendment 4- 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; are "in compliance," as that term is defined in section 163.3184(1)(b). c LU 56 Packet Pg. 3611 S.1.h 0. DONE AND ENTERED this 24th day of April, 2020, in Tallahassee, Leon County, Florida. 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 0 Filed with the Clerk of the Division of Administrative Hearings W this 24th day of April, 2020. COPIES FURNISHED: Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. Suite C 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 U Robert N. Hartsell P.A. 2 Suite C 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) 57 Packet Pg. 3612 S.1.h 0. Barton William Smith, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) c Christopher B. Deem, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) 0 Nicola J. Pappas, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 CD (eServed) W Richard J. Grosso, Esquire Richard Grosso P.A. Mail Box 300 c 6511 Nova Drive Davie, Florida 33317 (eServed) Shawn D. Smith, City Attorney City of Key West, City Attorney's Office i 1300 White Street Post Office Box 1409 CD Key West, Florida 33040 (eServed) 0 George B. Wallace, Esquire City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 E Key West, Florida 33040 c (eServed) Roget V. Bryan, Esquire Islamorada, Village of Islands 86800 Overseas Highway Islamorada, Florida 33036 (eServed) E 58 Packet Pg. 3613 S.1.h 0. Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 c (eServed) 2 0 4- William Chorba, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 W 107 East Madison Street a, Tallahassee, Florida 32399-4128 (eServed) 0 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended 0 Order should be filed with the agency that will issue the Final Order in this 2I case. CD c 0 59 Packet Pg. 3614 S.1.h 0. STATE OF FLORIDA c DEPARTMENT OF ECONOMIC OPPORTUNITY N CECILIA MATTINO, Petitioner, VS. DOAH CASE NO.: 18-6250GM CITY OF MARATHON, FLORIDA, Respondent, c 2 c NAJA GIRARD, Petitioner, VS. DOAH CASE NO.: 19-1526GM c CITY OF KEY WEST, FLORIDA, Respondent, i CATHERINE BOSWORTH, Petitioner, CD VS. DOAH CASE NO.: 19-1839GM ISLAMORADA, VILLAGE OF ISLANDS, FLORIDA, Respondent, / 0 a� 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 E Packet Pg. 3615 S.1.h 0. the comprehensive plan amendments subject to challenge in the above-styled actions in compliance. N 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 0 Law as to a dispositive issue of whether the plan amendments establish meaningful and predictable 2 standards for the use and development of land as required by section 163.3177(1),Florida Statutes. 0 2. Amongst other issues raised in their Exceptions, the petitioners have taken 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 determination, (3) discussed during the five-day hearing, and (4) addressed by the parties in their i proposed recommended orders. 3. The DEO does not have the authority to make findings ab initio.See Cohn v. Dep't CD of Prof'l Regulation, 477 So.2d 1039,1047 (Fla. 3d DCA 1985). The DEO's role is not to make 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 appropriate remedy is not for the agency(or the court of appeal) to reach its own conclusion, but 0 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. 3616 S.1.h 0. the subject of the hearing to the extent they are relevant to the recommended disposition or, c however briefly, indicate why the testimony was not pertinent.") 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 0 163.3177(1), Florida Statutes. 2 B)Rulings on all pending Exceptions to the Recommended Order,not ruled on above, and 0 the pending motions filed by the petitioners are deferred until,if applicable,a Recommended Order 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. D) Exceptions to any additional Findings of Fact and Conclusions of Law included in a i subsequent Recommended Order on Remand shall be filed and served within the time periods prescribed in Rule 28-106.217, F.A.C. CD DONE and ORDERED this 215t day of August, 2020 Mark Buckles, Interim General oounsel Department of Economic Opportunity 0 Packet Pg. 3617 S.1.h 0. CERTIFICATE OF FILING AND SERVICE N I HEREBY CERTIFY that the original of the foregoing Order Remaining Case to c 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 A cy C F orida Department of Economic Opportunity c 107 East Madison Street, MSC 110 Tallahassee, FL 32399-4128 W Bic° U.S. Mail c The Honorable Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings The DeSoto Building 0 1230 Apalachee Parkway 2I Tallahassee, Florida 32399-3060 Robert N. Hartsell, Esquire CD Robert N. Hartsell, P.A. Suite C 61 Northeast 1" Street Pompano Beach, Florida 33060 c Sara M. Hayter, Esquire Robert N. Hartsell, P.A. Suite C 0 61 Northeast 1 St Street Pompano Beach, Florida 33060 v, Shai Ozery, Esquire Robert N. Hartsell, P.A. Suite C 61 Northeast 1" Street � Pompano Beach, Florida 33060 Packet Pg. 3618 S.1.h 0. c Barton William Smith, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 Christopher B. Deem, Esquire Smith Hawks, PL a 138 Simonton Street Key West, Florida 33040 Nicola J. Pappas, Esquire Smith Hawks, PL 138 Simonton Street 2 Key West, Florida 33030 0 Richard J. Grosso, Esquire Richard Grosso, P.A. W Mail Box 300 a, 6511 Nova Drive Davie, Florida 3317 0 Shawn D. Smith, City Attorney City of Key West, City Attorney's Office 1300 White Street a Post Office Box 1409 Key West, Florida 33040 i George B. Wallace, Esquire City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 Key West, Florida 33040 Robert V. Bryan, Esquire Islamorada, Village of Islands 86800 Overseas Highway Islamorada, Florida 33036 0 Packet Pg. 3619 S.1.h 0. STATE OF FLORIDA c DIVISION OF ADMINISTRATIVE HEARINGS N CECELIA MATTINO, Petitioner, vs. Case No. 18-625OGM a CITY OF MARATHON, FLORIDA, Respondent. 2 0 NAJA GIRARD, c Petitioner, W vs. Case No. 19-1526GM CITY OF MARATHON, FLORIDA, 0 Respondent. CATHERINE BOSWORTH, c Petitioner, vs. Case No. 19-1839GM CD CITY OF MARATHON, FLORIDA, m Respondent. RECOMMENDED ORDER ON REMAND 0 U A duly-noticed final hearing was held in this matter in Marathon, Florida, 2 on December 9 through 13, 2019, before Suzanne Van Wyk, an Administrative Law Judge assigned by the Division of Administrative LU Hearings. Packet Pg. 3620 S.1.h 0. APPEARANCES c CJ For Petitioners: Richard J. Grosso, Esquire Richard Grosso, P.A. 6511 Nova Drive, Mail Box 300 Davie, Florida 33317 Sarah Hayter, Esquire a Shai Ozery, Esquire Robert Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, FL 33060 For Respondents City of Marathon; and Islamorada, Village of Islands, Florida 0 Nicole Pappas, Esquire Barton Smith, Esquire W Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 0 For Respondent, City of Key West: George Wallace, Esquire City of Key West, City Attorney's Office 0 1300 White Street Post Office Box 1409 Key West, Florida 33040 CD STATEMENT OF THE ISSUE 0 Whether City of Marathon ("Marathon") Comprehensive Plan Amendment 2018-01, adopted on October 23, 2018 (the "Marathon Plan Amendment"); City of Key West ("Key West") Comprehensive Plan Amendment 19-06, adopted on April 4, 2019 (the "Key West Plan Amendment"); and Islamorada, c U Village of Islands ("Islamorada") Comprehensive Plan Amendment 19-03, 2 adopted on March 5, 2019 (the "Islamorada Plan Amendment") (collectively, 2 Packet Pg. 3621 S.1.h 0. the "Plan Amendments"), are "in compliance," as that term is defined in 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 and analysis and internally inconsistent with the City of Marathon Comprehensive Plan (the "Marathon Plan"), among other allegations, in 2 violation of the Community Planning Act, chapter 163, part II, Florida 0 Statutes ("the Act"). Ms. Mattino's petition was assigned to the undersigned CD as Case No. 18-6250. W On March 1, 2019, Petitioner, Naja Girard, filed a Petition with the 0 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. c i On April 9, 2019, Petitioner, Catherine Bosworth, filed a Petition with the Division challenging the Islamorada Plan Amendment as violative of the Act CD on many of the same grounds as the other Petitioners. Ms. Bosworth's 4- 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. Petitioners filed an Amended Joint Motion to Consolidate ("the Motion") c U the three cases, to which Respondents, Marathon and Islamorada, filed 2 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, E which was in effect when the Plan Amendments were adopted. 3 Packet Pg. 3622 S.1.h 0. The consolidated cases were scheduled for final hearing on October 7 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: Rebecca Jetton, accepted as an expert in comprehensive planning and planning in the Florida Keys; Martin Senterfitt, the Monroe County Director 2 of Emergency Management; and Richard F. Ogburn, accepted as an expert in 0 comprehensive planning. Petitioners introduced the following Exhibits which CD were admitted in evidence: 2, 5, 6, 8, 10, 11, 34, 39, 47, 48, 54, 55, 60, 70, 71, W 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, 0 221, 223, and 228. Petitioners proffered Exhibit 111, which was not admitted in evidence, but travels with the record of this proceeding. 0 U Respondents offered the testimony of. George Garrett, Marathon's 2I planning director; Ty Harris, Islamorada's planning director; and Patrick Wright, Key West's former planning director; each of whom is accepted as an CD expert in comprehensive planning; Michael Alfieri, accepted as an expert in 0 hydrogeology and karstology; William Precht, accepted as an expert in marine ecology; and Joaquin Vargas, accepted as an expert in transportation planning. 0 U Respondents introduced Exhibits 1 through 17, 20 through 66, 68 through 2 83, 85 through 131, 133, and 135 through 153, which were admitted in evidence. 4 Packet Pg. 3623 S.1.h 0. 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 > preparation of this Recommended Order. Evidentiary Considerations Petitioners sought to introduce the deposition testimony of two additional 0 witnesses: Kathleen McKee and Donald Maynard. While the deposition 0 transcripts were admitted, they constitute hearsay for which no exception CD under either section 90.803 or 90.804, Florida Statutes, applies. Section W 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 0 against whom the deposition is offered had the same motive to develop the testimony, has been declared unconstitutional. See Grabau u. Dept of Health, 816 So. 2d 701, 709 (Fla. 1st DCA 2002). Further, Petitioners were unable to 0 U make the required showing of unavailability in order to introduce the former 2I testimony of the two witnesses under the hearsay exception provided in section 90.804(2). Petitioners offered no non-hearsay evidence to corroborate CD the hearsay depositions of Ms. McKee and Mr. Maynard. Respondents objected to the introduction of a number of exhibits relied upon by Petitioners' expert planning witness, Ms. Jetton, in formulating her opinions regarding whether shallow injection wells contribute to nearshore c U water pollution. The articles were written by marine scientists, biologists, 2 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 E parties provided the undersigned with a copy prior to that date. 5 Packet Pg. 3624 S.1.h 0. 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 opinion. See § 90.704, Fla. Stat. The expert may even rely upon inadmissible c 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 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 0 expert who would typically rely upon the studies and publications in CD scientific journals for formulating an opinion on, for example, "the fate and W transport of sewage in the subsurface environment and the potential for contamination of marine surface waters[.]"3 0 The documents on which Ms. Jetton relied in formulating her expert planning opinions were admitted, but those documents remain 0 U uncorroborated hearsay. The undersigned has given the appropriate weight i to Ms. Jetton's testimony on these issues. CD Remand 0 c The undersigned's Recommended Order was entered on April 24, 2020, and forwarded to the Department of Economic Opportunity ("DEO") for issuance of a final order. Following the consideration of the parties' Exceptions to the Recommended Order, DEO remanded these cases to the c U undersigned for the "limited purposes of issuing Findings of Fact and 2 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 E 1995). 6 Packet Pg. 3625 S.1.h 0. meaningful and predictable standards as required by section 163.3177(1), 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 adopted the Plan Amendment. 2. Ms. Mattino's daughter is severely disabled, requires specialized equipment (including a specialized wheelchair), and requires full-time care, 0 for which Ms. Mattino relies upon a variety of caretakers. Her daughter has CD to be transported in a specially-equipped vehicle to accommodate the W wheelchair and other equipment. 3. In the event Ms. Mattino is required to evacuate for a hurricane, she 0 will need to bring an additional vehicle to transport her daughter's medical equipment, which requires additional personnel. 4. Prolonged car rides are dangerous for Ms. Mattino's daughter because 0 U she has a seizure disorder that worsens when she is aggravated or stressed. 2I Prolonged car rides are also stressful for Ms. Mattino, who has high blood pressure and has had several heart attacks. CD 5. Ms. Mattino evacuated for Hurricane Irma and testified that she 0 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 c U cause additional stress and would put her and her daughter's health at risk. 2 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. 7 Packet Pg. 3626 S.1.h 0. 7. Ms. Bosworth resides in Islamorada with her daughter, son-in-law, and their two children. She submitted written objections to the Islamorada Plan Amendment prior to the April 4, 2019 public hearing at which Islamorada c 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 hurricane shutters. Securing her boat and putting up her shutters requires the assistance of her son-in-law. Ms. Bosworth believes her circumstances are 2 unique because her son-in-law is a fire fighter and paramedic in Parkland, 0 Florida, and is not always available to help her prepare her property for a CD hurricane. W 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 0 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 0 U nearshore water quality became degraded or impaired it would affect her 2I quality of life. 10. Ms. Girard is a resident of Key West. She submitted oral or written CD objections to the Key West Plan Amendment prior to the March 5, 2019 4- 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 c U issued by the Monroe County Emergency Management Office. 2 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. 3627 S.1.h 0. 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). c 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 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 0 endangered lands. § 380.05(2), Fla. Stat. (2019).6 CD 15. In 1974, the Florida Keys (Monroe County and its municipalities) were W 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 0 U that, among other things, "protects the natural environment," "conserves and 2 i 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 0 the Keys. § 380.0552(2), Fla. Stat. (2019). 0 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 E programs and personnel to guide development in a manner that would ensure protection of 0 natural resources. 2 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 w of development on the environmental or natural resources of regional or statewide importance. § 380.05(2), Fla. Stat. (2019). E 9 Packet Pg. 3628 S.1.h 0. 17. The ACSC designation transferred all local Keys planning and development review and approval rights to the state land-planning agency, the Florida Department of Community Affairs ("DCA").7 While the Keys local c 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 consistent with the 1985 Growth Management Act.8 Several administrative challenges followed, initiated by both DCA and private entities and 0 individuals. 0 19. Monroe County revised its comprehensive plan in 1993 to resolve CD many of the issues raised in the litigation, but those amendments were again W challenged in administrative proceedings. 20. The second challenge culminated in a final order of the Administration 0 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 0 U Administration Commission. The Final Order found that "the environment of 2I 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 0 u. Monroe Cty., 1995 Fla. ENV LEXIS 129 (Fla. ACC 1995). 21. The litigation highlighted aspects of the Florida Keys ecosystem as having limited capacity to sustain additional impacts from development. Of particular concern was the declining water quality of the nearshore c environment due to lack of central sewer facilities, the loss of habitat for 2 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 E Planning Act,"by chapter 2011-142, Laws of Florida. 10 Packet Pg. 3629 S.1.h 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 Final Order found that the ability of the nearshore waters of the Keys to c 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 "remedial actions" in order to bring the Plan into compliance with both the Act and the Principles, which are adopted in section 380.0552. 0 23. Among the remedial actions was the requirement that Monroe County 0 establish a Permit Allocation System ("PAS") for new residential CD development. The Administration Commission explained, as follows: W The [PAS] shall limit the number of permits issued for new residential development ... provided that the hurricane evacuation clearance time does not c 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. 0 U 24. Monroe County amended its plan in 1996 to implement the PAS and 2 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 Administration Commission—Florida Administrative Code Rule 28-20, which 0 also established a comprehensive work program designed to improve the Keys' water quality and protect the habitat of threatened and endangered E species. 0 26. The rule was subject to another administrative challenge, and the y 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). LU 11 Packet Pg. 3630 S.1.h 0. The Carrying Capacity Study 27. The work program adopted by the rule included the requirement to conduct a "carrying capacity analysis" for the Florida Keys. Florida c 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 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 0 adverse impacts to, the Keys natural land and water systems, in addition to the impacts of nutrients on marine resources. W 28. The study was undertaken beginning in 1996 and was sponsored jointly by DCA and the Army Corps of Engineers ("the Corps") and involved 0 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 0 U ("FKCCS") was issued in September 2002. The major findings include the 2I following: • Development suitability in the Florida Keys is extremely restricted, due to the following characteristics: Existing development has 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 private lands are wetland parcels, and 0 development suitability of remaining lands is 2 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 E testimony of Rebecca Jetton, no other final report was issued by the study sponsors. 12 Packet Pg. 3631 S.1.h 0. • 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 c 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 6,000 units in order to maintain the state- c mandated level of service for roadways. 0 4- • All six future scenarios would result in disproportionate increase in government expenditures with respect to increased W population, which will require increased taxation on both local residents and tourists. • The existing data "are insufficient to establish 0 quantitative, predictive relationships between land use or development and the marine environment." The study documented human impacts to the marine ecosystem and species. c The study underscores the benefits of wastewater treatment, "but other impacts are more related to resource management than to land development." 30. The study provides the following four major guidelines for future 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 0 exacerbate an already untenable condition. 2 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. 3632 S.1.h 0. 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 > acceptable, additional environmental impacts may occur in areas ripe for redevelopment or already disturbed. 4. Increase efforts to manage the resources. Habitat management efforts in the Keys could increase to c 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 CD by "adoption of all necessary [comprehensive plan] amendments to establish W 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 0 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 0 U development regulations. 2I 24-Hour Hurricane Evacuation 32. In 2006, following the publication of the FKCCS, the Legislature CD 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 evacuation clearance time for permanent residents of no more than 24 hours." § 380.0552(4)(e)2., Fla. Stat. (2007). The requirement remains in effect and is c U enforced by the state through review of local government plan amendments. 2 See § 380.0552(9)(a)2., Fla. Stat. ROGO and BPAS 33. Principle among the Monroe County amendments to implement the remedial actions ordered by the Administration Commission was the PAS, 14 Packet Pg. 3633 S.1.h 0. 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 c 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 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 0 34. Islamorada and Marathon were not yet incorporated when the CD comprehensive plan litigation began and subsequent remedial measures were W issued. Since their incorporation, each of the cities has been brought under the umbrella of the ACSC designation. The cities' respective comprehensive 0 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 0 commission. The applicable administrative rules are chapter 28-19 for 2I Islamorada and chapter 28-18 for Marathon. 35. Marathon and Islamorada have permit allocation requirements CD similar to Monroe County, known as the Building Permit Allocation System ("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." � 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. >� w 11 Marathon's annual cap is 30 units and Islamorada's is 28 (22 market rate and 6 affordable housing). E 15 Packet Pg. 3634 S.1.h 0. 36. BPAS is a competitive system. Permit applications are awarded points based on their alignment with specific development criteria, such as presence or absence of wetlands or protected habitat, and availability of public c 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, 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- 0 stormwater treatment facilities. CD 38. The specific activities of each work program differ somewhat. For W example, with respect to environmentally-sensitive lands, Islamorada was required to apply for land acquisition funds, while Marathon was required to 0 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. 0 39. The wastewater implementation and wastewater project i implementation sections of the work programs are of high importance. The litigation highlighted the declining water quality of the nearshore CD 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, 2,800 cesspits, and at least 249 small package treatment plants. 40. The work program represents a monumental, long-term, and expensive12 infrastructure project to build a central sewer system in the c 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 said projects in the 2017/2018 year. E U 16 Packet Pg. 3635 S.1.h 0. 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 c 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 stormwater improvement projects and deadlines for completing said projects. ACSC Annual Reports 2 0 42. The local governments and the Department of Economic Opportunity 0 ("DEO") are required to report to the Administration Commission annually CD documenting "the degree to which work program objectives for the work W program year[13] have been achieved." 43. Achievement of work program objectives is directly tied to the BPAS 0 and ROGOif 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 0 U BPAS and ROGO, the local governments are required to direct new growth to 2I areas served by central sewer. Each application for building permit is awarded an additional four points15 if the parcel is served by central sewer CD meeting statewide treatment standards. 4- 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 0 U 13 The work program year runs from July of one year to June of the following year. 2 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 w whether this is an oversight in the rule. E 15 In Islamorada, the award is two additional points. 17 Packet Pg. 3636 S.1.h 0. application process), Marathon had connected 97 percent, and Monroe County had an overall connection rate of 86 percent (with higher percentages for specific individual treatment facilities). c 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 Chapter 28-36. 46. The Key West ACSC is subject to the same land planning and 0 development regulation oversight as the Florida Keys ACSC, and the Key 0 West comprehensive plan and land development regulations are approved by CD the state through Florida Administrative Code Chapters 28-37 and 9B-30. W 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 0 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 0 U Keys ACSC to enter into a Memorandum of Understanding ("MOU") with the 2I DEO, the Division of Emergency Management, and each of the other Keys local governments, to stipulate to the input variables and assumptions for CD utilizing the Florida Keys Hurricane Model, or other models acceptable to 0 DEO, to accurately depict hurricane evacuation clearance times for the 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 "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 2 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 Packet Pg. 3637 S.1.h 0. 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 c 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 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 CD evacuation participation rates; and the number of site-built units, the W occupancy rate, and participation rate of residents in those units, among other important variables. The inputs and assumptions were tested by 0 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 0 U annual building permit allocations that were adopted by rule or 2I comprehensive plan amendment (with the exception of Key Colony Beach and Key West). Scenario M5 produced an evacuation clearance time of 24 hours CD with a future allocation of 3,550 new residential building permits. 4- 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 mobile homes would convert to site-built homes. c U 53. In the two-phase evacuation plan, tourists are ordered to evacuate 2 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 19 Packet Pg. 3638 S.1.h 0. 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 c 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 determined 3,550 units to be the maximum buildout of the Keys through 2023 to maintain the 24-hour hurricane evacuation mandate in section 2 0 380.0552. 0 55. The Work Program directed DEO to "apply the derived clearance time CD to assess and determine the remaining allocations for the [ACSC]" and W recommend revisions to the allocation rates and distribution of allocations to the six local governments, as well as any recommended changes to the local 0 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. 0 U 56. On November 5, 2012, Monroe County, Marathon, Islamorada, Key 2I 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 CD TIME model, as well as the data, input variables, and assumptions to be 4- utilized in model runs. The following "whereas" clause succinctly provides the 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 c units (43,760 units); the maximum number of 2 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. 3639 S.1.h 0. 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 c 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. 4- 58. The MOU also memorializes the following staged evacuation procedure: • Approximately 48 hours in advance of tropical storm winds, mandatory evacuation of non-residents, visitors, RVs, travel trailers, live-aboard vessels (transient and non-transient), and military personnel. c • Approximately 36 hours in advance, mandatory evacuation of mobile- home residents, special needs residents, and hospital and nursing home patients. c U • Approximately 30 hours in advance, mandatory phased evacuation of 2 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 procedure by resolution. Affordable Housing 60. The need for additional affordable housing in the Keys is well E documented, and the parties stipulated, generally, to the need. 16 There are five hurricane evacuation zones in the Keys designated by mile marker numbers E along US 1. 21 Packet Pg. 3640 S.1.h 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 homes, "permanent RV's," and ground-level single-family homes that served 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. 0 Those structures must be rebuilt to code, which will likely take them out of CD financial reach of members of the Keys workforce. W 63. Provision of affordable housing is an important aspect of the regulatory framework for planning in the Keys. 0 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 0 U sectors of the population" of the Keys. § 380.0552(7)(1), Fla. Stat. When 2I designating the ACSC, the Legislature expressed the intent to "[p]rovide affordable housing in close proximity to places of employment" in the Keys. CD § 380.0552(2)(d), Fla. Stat. 0 The Keys Workforce Housing Initiative 65. Shortly after Hurricane Irma, Marathon began discussions with DEO about the possibility of obtaining additional building permit allocations for workforce-affordable housing. c U 66. In November 2017, Marathon passed Resolution 2017-99 requesting 2 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 under the current regulatory structure to address the need for affordable 22 Packet Pg. 3641 S.1.h 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 c 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 Phase I, along with tourists, visitors, mobile home residents, and military personnel. 2 0 69. The Administration Commission approved the Housing Initiative at 0 the June 13, 2018 meeting. In support of the Housing Initiative, DEO staff CD made a presentation asserting that the Phase I evacuation (under the W 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 0 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 0 with Marathon and other local governments to amend their comprehensive 2I plans to implement the Housing Initiative. The Plan Amendments CD 71. The Marathon Plan Amendment creates a new Future Land Use 0 ("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 known as "Affordable — Early Evacuation Pool" providing 300 workforce c U affordable building permit allocations in addition to the allocations identified 2 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 23 Packet Pg. 3642 S.1.h 0. followed and the distribution is based on the BPAS ranking procedures in effect. 72. The second policy provides the following "Specific Standards and c Requirements for Workforce Affordable Housing": Affordable-Early Evacuation residential units under this program shall: a. be multifamily structures; M b. be rental units; c 2 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 W Barrier Resource Systems; e. require on-site property management; 0 f. comply with applicable habitat and other locational criteria and densities for multifamily affordable housing units; 0 g. shall not be placed in any habitat defined as U mangroves, saltmarsh & buttonwood, hardwood 2 hammock, or fresh water wetlands (disturbed categories excepted); CD h. incorporate sustainable and resilient design principles into the overall site design; i. ensure accessibility to employment centers and amenities; and j. require deed-restrictions ensuring: c (i) the property remains workforce-affordable y housing in perpetuity; (ii) tenants evacuate during the period in which transient units are required to evacuate; 24 Packet Pg. 3643 S.1.h 0. (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; and (iv) on-site property managers are formally trained in evacuation procedures. 73. The third policy exempts from the early evacuation requirement all first responders, correctional officers, health care professionals, or other first- response workers required to remain during an emergency. 2 0 74. The fourth policy requires the workforce-affordable developments to 0 comply with federal accessibility standards. CD 75. The last policy requires Marathon to provide DEO with an annual W report on the implementation of the Housing Initiative, including documenting the number of workforce-affordable housing units built, 0 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. 0 U 76. Islamorada's plan amendment provides 300 workforce-affordable 21 building permit allocations in addition to the allocations identified in chapter 28-19. In all other respects the amendment is identical to the CD Marathon Plan Amendment. 0 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 transferred to Key West that are not accepted by other Florida Keys c municipalities or Monroe County." Rather than authorizing distribution of 2 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 ranking unless the number of applications received exceeds the authorized 25 Packet Pg. 3644 S.1.h 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 c 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. Petitioners' Challen,es 78. Petitioners challenge the Plan Amendments, generally, as inconsistent 0 with the FKCCS and the carrying capacity approach to planning in the Keys. 0 The two main contentions are hurricane evacuation and environmental CD concerns. Hurricane Evacuation 79. Petitioners posit that the Plan Amendments violate the Principles and 0 the MOU17, 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 0 U amendments are not supported by adequate data, and a professionally- 2 i acceptable analysis thereof, on hurricane evacuation clearance times. 80. At first blush, Petitioners' argument has merit: the Plan Amendments CD 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 buildout number was derived directly from the Work Group after agreement 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 c U evacuation of permanent population within 24 hours. 2 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. E 26 Packet Pg. 3645 S.1.h 0. 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 c 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 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 0 expert who has extensive experience with hurricane evacuation modeling in CD South Florida, including the Keys. Mr. Ogburn was directly involved in the W Work Group hurricane evacuation modeling that culminated in the 2012 report and adoption of the MOUs. As Mr. Ogburn explained, Monroe County 0 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 statewide regional evacuation plan utilizing the new census data. 0 U 83. Specifically, Mr. Ogburn, who was at the time employed by the South 2I Florida Regional Planning Council, extracted demographic data from the 2010 census and created the demographic data base for use with the TIME CD model. Mr. Ogburn subsequently completed "validation runs" of the TIME 4- 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 the census block group data sets in the original spreadsheet he had created c U for DEO. The missing information was the number of vehicles identified 2 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 E the same model run scenarios to ensure that the results from the initial runs were replicated. 27 Packet Pg. 3646 S.1.h 0. 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 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- and-a-half hours for evacuation of Phase IIa total clearance time of 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 2 0 in the Keys already exceeds the 24-hour evacuation standard mandate by 0 statute (and incorporated into Respondents' comprehensive plans). In his CD opinion, adding units authorized by the Housing Initiative would further W exacerbate the problem. 87. Petitioners introduced other evidence aimed at tearing down the 0 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 0 U he described as "most likely" too high. Mr. Ogburn cast doubt on the 2I 100% participation rate assumption, and the assumed 12-hour response curve, which he testified was unrealistic given that people will not leave at CD 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 doubt on the ability of meteorologists to predict storms with accuracy 48 hours in advance of landfall. 88. The Keys local government comprehensive plans, as adopted with use c U of the TIME model, and all underlying assumptions and inputs, have 2 previously been determined to be "in compliance." The question of whether those assumptions and model inputs are supported by data and analysis is Uj 28 Packet Pg. 3647 S.1.h 0. 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 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 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. 0 90. Notably, when Mr. Ogburn was asked directly whether the additional 0 1,300 units added to permanent population would cause the Keys evacuation CD time to exceed 24 hours, Mr. Ogburn testified: W 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 c run the model to determine whether or not that would cause the clearance times in the original phase to increase significantly.[201 91. The 2012 run of the TIME model demonstrated a clearance time in c i Phase I of 16 hours and 30 minutes, or 17 hours and 30 minutes, depending on the transient occupancy rate utilized. CD CD 92. Respondents introduced the testimony of Joaquin Vargas, a traffic 0 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 1990s to determine potential roadway improvements that could reduce Keys 0 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 Uj data and analysis supports the 24-hour evacuation clearance time cap. E 20 T2:79;1-6. 29 Packet Pg. 3648 S.1.h 0. 93. Mr. Vargas' modeling was not based on a two-phased evacuation. 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 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. 0 95. This evidence had little relevance because the models are not CD comparable, and because Mr. Vargas utilized inputs and assumptions that W 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 0 U the more recent 2010 data, which Mr. Vargas admitted "w[ould] provide more 2I accurate information," and included inaccurate data, such as non-existent lane segments which inflated capacity on some roadway segments. While CD Mr. Vargas expressed the opinion that the Miller Model is superior because it 4- 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 determine maximum buildout in the Keys. 96. Mr. Ogburn completed a run of the TIME model in 2014 which c U included the previously-missing vehicles from the census block groups in 2 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 19 hours. Thus, the evidence does not support a finding that the evacuation of 30 Packet Pg. 3649 S.1.h 0. Phase I with the additional 1,300 units cannot be completed within the first 24 hours of a 48-hour evacuation scenario. 97. The preponderance of the evidence does not support a finding that the c 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, Petitioners alleged the Plan Amendments are inconsistent with the following provisions of Respondents' comprehensive plans: 0 Marathon: 0 • FLU Objective 1-2.1, which requires Marathon to "ensure the CD availability of adequate public facilities and services[.]" W • FLU Objective 1-2.2, requiring Marathon to "meet the required 24- hour hurricane evacuation time or other applicable state standard for hurricane evacuation." • FLU Objective 1-3.5, requiring Marathon to "manage the rate of new 0 development to ... support safe and timely evacuation prior to a 21 hurricane." CD • Conservation and Coastal Element Policy 4-1.21.2, requiring Marathon 4- 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. 0 • 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. 3650 S.1.h 0. • 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. 0 • Policy 5-1.2.10), requiring Marathon to enter into interlocal 2 0 4- le 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 c and maintain acceptable levels of service for hurricane evacuation[.]" • Transportation Element ("TE") Policy 2-1.2.8, which requires 0 Islamorada to "address long-term strategies to reduce clearance time i and coordinate permit allocations" by implementing specifically-listed programs with FDOT, FDCA, and other local governments in the Keys. CD • 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 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," and provides that "[t]he Village shall reduce and maintain hurricane E 32 Packet Pg. 3651 S.1.h 0. 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 • Coastal Management Element ("CME") Objective 5-1.9, requiring Islamorada to "avoid population concentrations in the coastal high hazard area." • CME Policy 5-1.10.2, requiring Islamorada to "coordinate with Monroe County in emergency preparedness." 2 0 4- 0 • CME Objective 5-1.15, requiring Islamorada to "ensure CD intergovernmental coordination within the coastal area." W • ICE Objective 8-1.1, requiring Islamorada to "ensure intergovernmental coordination." 0 • ICE Policy 8-1.2.1, titled "Coordinate Development and Growth Management Issues." c i • ICE Policy 8-1.2.8, titled "Implement Intergovernmental Coordination." CD Key West: 0 • FLU Objective 1-1.16, requiring Key West to "regulate the rate of population growth commensurate with planned increases in c evacuation capacity in order to maintain and improve hurricane evacuation clearance times[,]" and "in concert with Monroe County, its 0 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. 3652 S.1.h 0. • 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][.]" 0 • ICE Policy 8-1.1.3, which reads, in pertinent part, as follows: 2 0 4- 0 Considering the growth and development CD 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 0 coordinate with Monroe County and the Cities ... regarding the allocation of additional development. 0 The City shall pursue resolution of development �I 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 c implement the hurricane and transportation conclusions and policies relative to residential units' allocation which are adopted by Monroe County and all municipalities as described in the [MOU] dated July 14, 2012. 2 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. 3653 S.1.h 0. 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- 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. 102. Based on the foregoing Findings of Fact, Petitioners did not prove that the Marathon and Islamorada Plan Amendments are inconsistent with 0 section 380.0552(9)(a)2., which requires the local governments in the ACSC 0 to adopt goals, objectives, and policies to "maintain a hurricane evacuation CD clearance time for permanent residents of no more than 24 hours." W Environmental Concerns 103. Petitioners next contend the Plan Amendments are not supported by 0 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 0 U FKCCS: nearshore water quality and ecological impacts. 2I Nearshore Water Quality of the Florida Keys 104. Petitioners claim that the nearshore water quality of the Keys was CD determined over 25 years ago to have exceeded its capacity to assimilate 4- 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. c U 105. In 1990, Congress created the Florida Keys National Marine 2 Sanctuary ("FKNMS"), and required development of a Water Quality Protection Program ("WQPP"), establishing comprehensive, long-term LU monitoring of water quality in the FKNMS.Under the Water Quality 35 Packet Pg. 3654 S.1.h 0. Monitoring Project ("WQMP"), water quality has been monitored quarterly at 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 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 0 data from 1995 through 2008 indicates a statistically significant CD improvement in some parameters, such as dissolved inorganic nitrogen ..." W The report concludes that "this trend will be watched closely in the future, particularly with regard to any potential effect attributable to ... water 0 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 U 108. In 2008, the Environmental Protection Agency ("EPA") developed 2I Strategic Targets for the WQMP, setting limits for DIN (dissolved inorganic nitrogen) at < 0.010 parts per million ("ppm"), and TP (total phosphorous) at < 0.0077 ppm, among other nutrients, which are considered the values 0 "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 the target of< 0.010 ppm). In 2011, FKNMS added 10 sampling stations, c U located within 500 meters of the shore in the Keys, referred to in the reports 2 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 2011, but fell short of the target in 2012 through 2015. The stations reported 36 Packet Pg. 3655 S.1.h 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 or exceeding the DIN target in 2017, but not 2016; and meeting or exceeding c 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 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 0 target for TP in 2008 and 2010, but met or exceeded the target every year CD since 2010. The samples fell below the target for DIN in 2012 through 2016, W but met or exceeded the target value in subsequent years. 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. 112. The 2014 report documented elevated nutrient concentrations of DIN 0 U and TP in waters close to shore along the Keys, attributable to "human 2I impact." 113. The 2015, 2017, and 2018 reports exclude the data from the SHORE CD stations for purposes of demonstrating compliance with target values because 4- 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 c U difference between the median levels of nutrients sampled in SHORE 2 stations when compared with the "alongshore," "channel," and "reef' stations. 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. E 37 Packet Pg. 3656 S.1.h 0. 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 level of TP, which the report recognizes as one of the most important c 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 impaired. Petitioners' planning expert, Ms. Jetton, defined nearshore as approximately 12,000 meters from shore, not merely within 500 meters of 0 shore. The 2017 report breaks out the "alongshore" stations as well as the 0 SHORE stations. That data shows the median value of TP at the alongshore CD stations is approximately .0055, well below the target of .008. Notably, 75 W 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 0 of.01; and 75 percent fall below .015. 116. In 2018, FKNMS reported a trend of increased DO (dissolved oxygen) in both surface and bottom waters throughout the Keys, and declining 0 U turbidity in the surface waters, for the 24-year period from 1995 through 2I 2018. Increased DO is beneficial for animal life. Declining turbidity means the water is becoming clearer. The 2014 report showed no significant trends CD in TP, but the 2018 report noted small, but significant, declining trends in TP 0 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") e 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. E 23 33 U.S.C. § 1251 et seq. 38 Packet Pg. 3657 S.1.h 0. 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. c 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 background within the HALO zone, which is 500 meters of shore, not including canals; and (2) the average of values measured at the nearshore 0 (500 meters to 12,100 meters from the shoreline). The FKRADs identify 0 23 impaired estuarine water body identifications ("WBIDs"). The WBIDs are CD Class III water bodies, defined by the Clean Water Act as "used for W recreation, propagation, and maintenance of a healthy, well-balanced population of fish and wildlife." The FKRAD identifies specific restoration 0 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. 0 U 119. The FKRAD focuses on TN (total nitrogen) and TP, and establishes 2I different water quality target values than the FKNMS. For the HALO Zone the target is an "as insignificant increase above natural background for each CD nutrient." "Insignificant" is defined as less than ten micrograms per liter 0 (<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 c U meeting the strategic targets[.]" Ms. Jetton concluded, based on the 2018 2 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 not meeting the DEP necessary levels of nutrients for healthy waters and 39 Packet Pg. 3658 S.1.h 0. 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." 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 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. 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 0 target—insignificant increases above natural background—has been CD achieved. The 2018 Update provides that "water quality data will be W compared to the FKRAD water quality targets ... to evaluate achievement of targets," and that "[m]onitoring for success will include, among other data 0 sets, "decrease in nearshore nutrient concentrations in comparison to water quality targets and OFW background concentrations." Injection Wells and Nearshore Water Quality 0 U 123. Absent concrete evidence to support Petitioners' claim that the 2I nearshore waters have not recovered from their 1995 impaired designation such that they can assimilate pollutants from additional development, CD Petitioners argue that the existing "improved" wastewater and stormwater treatment infrastructure in the Keys does not adequately protect marine and coastal resources of the Keys, and that the addition of new development will exacerbate the problem. Specifically, Petitioners posit that shallow wastewater injection wells degrade nearshore water quality. c U 124. Marathon injects treated wastewater effluent into shallow injection 2 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 operate at, a permitted capacity of.200 million gallons per day ("MGD") 40 Packet Pg. 3659 S.1.h 0. .400 MGD, .200 MGD, .500 MGD, and .450 MGD, respectively. Marathon's injection wells are designed and permitted to exceed full build out. 126. Key West injects its treated wastewater effluent into deep injection c 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 permitted capacity for its injection wells. 128. Islamorada does not have its own municipal wastewater effluent 0 injection wells or wastewater treatment plant. Islamorada's wastewater is 0 transmitted to the Key Largo Regional Wastewater Treatment Facility ("Key CD Largo Wastewater Treatment Facility"), which treats and injects effluent into W 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 0 and operates at a permitted capacity of 2 MGD. The injection wells at the Key Largo Wastewater Treatment facility are designed and permitted to exceed full build out. 0 U 130. Ms. Jetton testified that, based on reports she has reviewed, when 2I 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 CD scientific reports which were admitted in evidence as sources on which she 0 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 to the 2014 and 2017 FKNMS reports as evidence that shallow well injections c U may contribute to nutrients in nearshore waters. 2 131. 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 E quality of the nearshore waters of Key West or the Florida Keys. 41 Packet Pg. 3660 S.1.h 0. quality of nearshore waters. The 2017 report mentions there may be a connection. 132. Respondents introduced the testimony of Michael C. Alfieri, who is a c 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 of the authors of the definitive text in Florida on karstology. 133. Mr. Alfieri testified that the subsurface conditions in Marathon, as 0 shown in the core samples and boring logs he personally reviewed, indicate 0 the presence of aquitards25 and semi-confining materials, including calcite CD calcrete with clay silt, which would significantly inhibit vertical migration of W inj ectate into surface water adjacent to Marathon's shallow injection wells.26 134. Based on his knowledge and experience, Mr. Alfieri testified that 0 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 0 U shallow well, it undergoes geochemical reactions as it interacts with, and is 2I absorbed by, the surrounding rock, which reduces nutrient concentration. 135. Mr. Alfieri testified that based on the advanced wastewater CD treatment facilities and injection wells used by Respondents, the depths of 4- the injection wells and their current level of usage, as well as the surrounding geological features, including the confining layers, which are horizontally transmissive, the additional residential units authorized by the Plan Amendments would have no impact on nearshore waters of the Florida c Keys. y 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. 26 The parties stipulated that deep injection wells"do not have a quantified impact on the E water quality of the nearshore waters of Key West or the Florida Keys." 42 Packet Pg. 3661 S.1.h 0. 136. The undersigned finds Mr. Alfieri's testimony more persuasive and 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: Marathon 0 • Infrastructure Element ("IE") Goal 3-1: "[E]nsure availability of 0 needed public facilities associated with wastewater disposal ... in a 0 manner that is environmentally sound and protects marine CD environments, including sea grass beds and nearshore waters[.]" W • IE Goal 3-2: "[Marathon] shall provide for environmentally ... sound 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[.]" c i • 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." Islamorada 0 • FLU Goal 1-1, which provides in pertinent part, as follows: 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 induced activities do not diminish assets of our 43 Packet Pg. 3662 S.1.h 0. 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 quality[.] c • 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 environmental quality." U • CE Objective 6-1.9: "Islamorada ... shall provide requirements designed to protect fisheries, wildlife and wildlife habitat from the c adverse impacts of development by regulating the location, density and intensity of those activities that cause the adverse impact." Key West c • FLU Goal 1-1: "Minimize Threats To Health, Safety, And Welfare Which May Be Caused By Incompatible Land Uses, Environmental Degradation[.]"27 c 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 disasters[.]" 0 • CME Objective 5-1.1: "Protect Coastal Resources, Wetlands, Estuarine Salt Pond Environmental Quality, Living Marine Resources, And 0 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 building permits allocated annually in accordance with the implementing policies." E 44 Packet Pg. 3663 S.1.h 0. resources, living marine resources, and other natural resources; (2) Maintaining or improving coastal environmental quality by improving stormwater management[.]" c • CME Policy 5-1.1.4: "Protect Living Marine Resources, Coastal Marsh, 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 2 0 4- le 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 regulations, the City shall consider the establishment of additional c 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." CD • 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 ... standards." 138. Respondents' wastewater treatment plants are in compliance with their DEP wastewater treatment plant and injection well permits. 45 Packet Pg. 3664 S.1.h 0. 139. Furthermore, there have been no violations of the permits for 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. 141. Petitioners did not prove that the Marathon Plan Amendment is internally inconsistent with the Marathon Comprehensive Plan Goal 3-1, 0 Goal 3-2, and Objective 3.2.2. 0 142. Petitioners did not prove the Islamorada Plan Amendment is internally inconsistent with Islamorada Comprehensive Plan Goal 1-1, W Goal 6-1, and Objective 6-1.9. 143. Petitioners did not prove the Key West Plan Amendment is internally 0 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,ical Impacts 0 U 144. Petitioners maintain the Plan Amendments are not supported by the 2I best available data on the ecological carrying capacity of the Keys with regard to habitat protection. CD 145. The FKCCS recommended four guidelines for future development in 0 the Keys: (1) prevent encroachment into native habitat; (2) continue and intensify existing programs (e.g., land acquisition, wastewater treatment); (3) focus future growth on redevelopment and infill; and (4) increase efforts to manage the resources. c U 146. Since the FKCCS was published in 2002, the local governments in 2 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 lands to remove them from potential development. 46 Packet Pg. 3665 S.1.h 0. 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 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 issued for properties which in part or whole designated as Hardwood Hammock, Palm Hammock, Cactus Hammock, or Beach/Berm." 2 0 148. The Key West comprehensive plan mandates that new development 0 preserve, at a minimum, "all wetlands and ninety (90) percent of hardwood CD hammocks." The Key West plan does not allow development in any wetlands W "except where State and/or federal agencies having jurisdiction provide for 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 0 U comprehensive plan also discourages development of lots containing both i 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, 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 buttonwood wetlands, as well as disturbed mangrove and freshwater c 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 the provision of the Plan Amendments which provides that the workforce 47 Packet Pg. 3666 S.1.h 0. affordable units "shall not be placed in any habitat defined as mangroves, 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 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 0 impossible to permit the new affordable units on any lot designated hardwood CD hammock. W 152. Further, the Marathon BPAS weighting system will apply to the new allocations,29 which will continue to direct development to scarified lots, and 0 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 0 requiring the most stringent open space ratios. �I 153. Petitioners did not prove the Plan Amendments are not based on data and analysis of the ecological carrying capacity of the Keys. CD 154. Petitioners allege that the Plan Amendments are internally 0 inconsistent with the following provisions of the Marathon and Islamorada plans relating to ecological concerns: Islamorada: • GOAL 1-1: IMPLEMENT FUTURE LAND USE VISION, which reads, in pertinent part, as follows: 2s The Islamorada Plan Amendment refers to"tropical" hardwood hammock. Uj 29 Only the Key West Plan Amendment exempts the allocation of the affordable-early E evacuation units from the BPAS. 48 Packet Pg. 3667 S.1.h 0. [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 c 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 coastal environment[.] c 2 • Policy 2-1.9.3: Participate in the Florida Keys Carrying Capacity Study. ... "[Islamorada] shall continue to support the technical c CD undertakings of this study, and the establishment of carrying capacity W limitations for the Florida Keys." • Goal 6-1: "Islamorada ... shall conserve, manage, use and protect the c natural and environmental resources ... based on their carrying capacity limitations to ensure continued resource availability and environmental quality." 0 i • 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 4- functioning and carrying capacity of existing natural systems and resources conservation." Marathon • Objective 1-2.1: which calls for adequate public facilities and services c U for future growth "to ... protect valuable natural resources...." 2 155. Petitioners did not prove the Marathon Plan Amendment is internally inconsistent with Objective 1-2.1. 49 Packet Pg. 3668 S.1.h 0. 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. c 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: 2. [P]Ian amendments shall be based upon surveys, studies, and data regarding the area, as applicable, including: 4- a. The amount of land required to accommodate c anticipated growth. CD b. The projected permanent population of the area. c. The character of undeveloped land. 0 d. The availability of water supplies, public facilities, and services. e. The need for redevelopment, including renewal of 0 blighted areas and the elimination of 2I 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. g. The compatibility of uses on lands adjacent to an airport[.] h. The discouragement of urban sprawl. 0 i. The need for job creation, capital investment, and 2 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. 3669 S.1.h 0. 158. Many of the listed criteria are not applicable to the Plan Amendments because the Plan Amendments do not propose a specific type of C 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 public services, such as the capacity of wastewater treatment facilities, 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 c adoption. 0 160. Petitioners did not prove the Plan Amendments are not based upon CD applicable surveys, studies, and data as required by section 163.3177(6)(a)2. W Meaningful and Predictable Standards 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[.]" 162. First, Petitioners focus on the language of the Plan Amendments 0 U which requires location of the workforce-affordable housing to "ensure 2I accessibility to employment centers and amenities." Petitioners argue that, because none of the Plan Amendments define either "employment center" or CD "amenity," these standards are not meaningful to identify those sites which 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 contain a definition section, would be rendered meaningless. That simply c U cannot be the case. 2 164. 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 housing ... shall be approved only if such sites [are] ... [a]ccesible to 51 Packet Pg. 3670 S.1.h 0. employment centers[.]" The Key West comprehensive plan uses the same 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 c 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 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 0 center in Marathon. In fact, Mr. Garrett identified all the City's employment CD centers as being located generally between Coco Plum and the Seven Mile W Bridge. As for determining whether the housing authorized under the Plan Amendment will be "accessible" to an employment center, Petitioners 0 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 0 example, he testified that housing located a mile-and-a-half from an �I employment center in Marathon is accessible by bus routes that run throughout the day. CD 166. Petitioners contend that the language is not meaningful because the 0 term "amenities" is also not defined in the Plans. In their Proposed Recommended Order, Petitioners state, "It is unknown whether this term means anything over and above required concurrency facilities." 167. When a legislative term is not specifically defined, it must be given c U its plain and ordinary meaning. See Greenfield v. Daniels, 51 So. 3d 421, 426 2 (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. 1997))). It is appropriate to refer to a dictionary definition to ascertain the 52 Packet Pg. 3671 S.1.h 0. plain and ordinary meaning of legislative terms. See Survivors Charter Schs., c 3 So. 3d at 1233. 168. The definition of"amenity" is "something that helps provide comfort, c 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. 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 0 predictable standards for the use and development of land under the Plan CD Amendments. W 170. Next, Petitioners contend that the requirement to "incorporate 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 those terms are meaningless because they are undefined. As stated above, 0 U lack of a definition alone does not render the terms meaningless, and it is 2I found that they are not. 171. Petitioners did not prove that the Plan Amendments' direction to CD "incorporate sustainable and resilient design principles" fails to provide 4- 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 Plan Amendments do not provide meaningful standards to ensure c U enforcement of (1) use of the units for workforce-affordable housing, and 2 (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 reference any such requirements." Ms. Jetton testified that, because the Plan 53 Packet Pg. 3672 S.1.h 0. Amendments do not include, or otherwise adopt, HUD income guidelines, they will not produce affordable housing. 174. The Plan Amendments require the use of deed restrictions to ensure: c (i) the property remains workforce-affordable housing in perpetuity; (ii) tenants evacuate during the period in which transient units are required to evacuate; c (ill) 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, c to the resident; and CD (iv) on-site property managers are formally trained in evacuation procedures.[30] 0 175. Petitioners allege that because the term "workforce-affordable housing" is undefined, there is no mechanism to ensure that the housing built pursuant to the Plan Amendments will be reserved for persons with 0 particular income limits. �I 176. As previously discussed, a term is not meaningless just because it is undefined in the Plan Amendment. The Key West comprehensive plan CD defines the term "affordable housing" according to HUD standards, as a unit 4- 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 c 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. 3673 S.1.h 0. 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 c 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 speculation that the provisions are unenforceable. Ms. Jetton speculated that most residents of this housing would be either unable or unwilling to 2 0 evacuate early, and that the Plan Amendment language has no teeth to 0 ensure early evacuation. She testified that the language is permissive CD "failure to adhere to evacuation requirements could result in severe W penalties"—meaning it may not be enforced at all. According to her, because 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 0 considered on its own individual facts. �I 180. In addition, the Plan Amendments include a process for evaluation of the effectiveness and enforcement of the "early-evacuation pool" established CD therein. The Plan Amendments require each local government to report to 4- 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 can make refinements in the program. Further, data regarding either lack of c 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 housing units or early evacuation thereof. 55 Packet Pg. 3674 S.1.h 0. CONCLUSIONS OF LAW 182. The Division of Administrative Hearings has jurisdiction over the subject matter and parties hereto pursuant to sections 120.569, 120.57(1), c 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 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 0 appropriate strategic regional policy plan, and with the principles for guiding CD development in designated areas of critical state concern and with part III of W chapter 369, where applicable." § 163.3184(1)(b), Fla. Stat. 186. 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. Stat. 0 U 187. "The `fairly debatable' rule is a rule of reasonableness; it answers the 2I question of whether, upon the evidence presented to the [government] body, the [government's] action was reasonably-based." Lee Cty. u. Sunbelt CD 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)). 188. The mere existence of contravening evidence is not sufficient to establish that a land planning decision is "fairly debatable." It is firmly established that: c U [E]ven though there was expert testimony adduced 2 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. 3675 S.1.h 0. 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. c 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 a of the evidence. See § 120.57(1)0), Fla. Stat. The MOU 190. Petitioners allege, as grounds for finding the Plan Amendments not c "in compliance," that the Plan Amendments are inconsistent with the MOU. 4- Petitioners' allegations of inconsistency with the MOU are not well taken. 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 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 62B-33 and 40E-8 are not compliance issues); Cemex Constr. Materials Fla. u. Lee Cty., Case 0 No. 10-2988 (Fla. DOAH Feb. 21, 2012; Fla. DCA Apr. 10, 2012) (whether 21 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 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 E procedural requirements of section 163.3185(15)(c) is not a compliance issue); 0 Current u. Town of Jupiter, Case No. 03-0718 (Fla. DOAH Oct. 24, 2003; Fla. y 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. 3676 S.1.h 0. 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 V. c 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 plans, Petitioners' argument might have had merit. However, none of the comprehensive plans adopts the MOU by reference. The MOU is a separate 2 stand-alone document which may be amended by agreement of the parties, 0 outside of the statutory plan amendment process. CD Internal Inconsistences W 192. Section 163.3177(2) mandates "the several elements of the comprehensive plan shall be consistent." 0 193. 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 0 U of nearshore waters, wastewater treatment, or habitat protection. 2I 194. Petitioners did not prove beyond fair debate that the Plan Amendments are inconsistent with section 163.3177(2). Data and Analysis 0 195. Section 163.3177(1)(0 requires plan amendments to be "based upon relevant and appropriate data and analysis" by the local government, and includes "surveys, studies, community goals and vision, and other data available at the time of adoption." c U 196. To be based on data "means to react to it in an appropriate way and 2 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. 58 Packet Pg. 3677 S.1.h 0. 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. c 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, which apply to both Marathon and Islamorada.31 Petitioners alleged the Plan Amendments are inconsistent with section 380.005(9), which requires plan 0 amendments comply with the requirement to "maintain[] a hurricane 0 evacuation clearance time for permanent residents of no more than 24 hours." CD Based on the foregoing Findings of Fact, it is at least fairly debatable that the W Plan Amendments will not cause evacuation clearance time of the ACSC to exceed the 24-hour evacuation clearance time. 0 200. 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' 0 U challenges. One of the other major Principles implicated by the Marathon 2I and Islamorada Plan Amendments is to "[m]ake[] available adequate affordable housing for all sectors of the population of the Florida Keys." CD § 380.0552(7)(1), Fla. Stat. The parties stipulated to the need for affordable 0 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. c U Stat. 2 201. 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. 3678 S.1.h 0. (2)(a)7., which require plan amendments to "[s]trengthen local government capabilities for managing land use and development"; "[p]rotect ... the public health, safety, welfare, and economy of the City of Key West, and [maintain] c 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. 202. Based upon the foregoing Findings of Fact, Petitioners did not prove beyond fair debate that the Key West Plan Amendment is inconsistent with 0 the listed Principles. 0 Other Contentions CD 203. Petitioners raised additional arguments, which were likewise not W proven beyond fair debate. 204. 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 the availability of water supplies and other public services during plan 0 review and adoption. Respondents also considered the need of the service 2I sector of the economy—including retail and restaurant services, as well as public school and first-responder services—during plan review and adoption. CD 205. Based on the foregoing Findings of Fact, Petitioners did not prove, 0 beyond fair debate, that the Plan Amendments are inconsistent with section 163.3177(6)(a)2. 206. Petitioners contend the Plan Amendments were inconsistent with section 163.3177(6)(a)8., which requires, as follows: c U 8. Future land use map amendments shall be based 2 upon the following analysis: a. An analysis of the availability of facilities and services. 60 Packet Pg. 3679 S.1.h 0. 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). c 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 with the requirement in section 163.3177(1) that local government comprehensive plans "shall establish meaningful and predictable standards c for the use and development of land[.]" Based on the foregoing Findings of 0 Fact, Petitioners did not carry their burden of proof with respect to that CD issue. Conclusion 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). 0 U RECOMMENDATION 2 Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final CD order determining the City of Marathon Comprehensive Plan Amendment 0 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; are "in compliance," as that term is defined in section 163.3184(1)(b). c 61 Packet Pg. 3680 S.1.h 0. DONE AND ENTERED this 25th day of September, 2020, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative HearingsCD this 25th day of September, 2020. W COPIES FURNISHED: E 0 Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. Suite C 61 Northeast 1st Street c U Pompano Beach, Florida 33060 2I (eServed) Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. Suite C 61 Northeast 1st Street Pompano Beach, Florida 33060 c (eServed) Shai Ozery, Esquire Robert N. Hartsell P.A. U Suite C 2 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) 62 Packet Pg. 3681 S.1.h 0. Barton William Smith, Esquire Law Firm of Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) c Christopher B. Deem, Esquire Law Firm of Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) 0 Nicola J. Pappas, Esquire Law Firm of Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 CD (eServed) W Richard J. Grosso, Esquire Richard Grosso P.A. Mail Box 300 c 6511 Nova Drive Davie, Florida 33317 (eServed) Shawn D. Smith, City Attorney City of Key West, City Attorney's Office i 1300 White Street Post Office Box 1409 CD Key West, Florida 33040 (eServed) 0 George B. Wallace, Esquire City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 E Key West, Florida 33040 c (eServed) Roget V. Bryan, Esquire Islamorada, Village of Islands 86800 Overseas Highway Islamorada, Florida 33036 (eServed) E 63 Packet Pg. 3682 S.1.h 0. Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 c (eServed) 2 0 4- Mark Buckles, Interim General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 W 107 East Madison Street a, Tallahassee, Florida 32399-4128 (eServed) 0 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended 0 Order should be filed with the agency that will issue the Final Order in this 2I case. CD c 0 64 Packet Pg. 3683 X1: 0 SIM 14 ci' TUZ�ge of ista- nars } - 2 ,,yam a� OFCL SENT VIA EMAIL AND FED EX 0. April 10, 2019 N Mr. Ray Eubanks, Plan Processing Administrator Florida Department of Economic Opportunity Caldwell Building 107 East Madison Street—MSC 160 Tallahassee, Florida 32399 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: U 0 Pursuant to Chapter 163, Part Il, Florida Statutes, the Islamorada, Village of Islands Planning and Developmentle 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 W 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. 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: South Florida Regional Planning Council ■ South Florida Water Management District Lo ■ 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. 3684 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. S 0 Ord LPA 1st VC 2nd VC Amendment Amendment Hearing Hearing Hearing No. Name Title Date Date Date n/a ADOPTED AN ORDINANCE OF ISLAMORADA, 12/10/18 12/13/18 4/4/19 CL TEXT VILLAGE OF ISLANDS, FLORIDA, E AMENDMENT AMENDING CHAPTER 3 "HOUSING �i ESTABLISHING ELEMENT" AND ASSOCIATED N 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 ADDITIONAL 300 AFFORDABLE UNIT ALLOCATIONS TO BE IDENTIFIED AS THE "AFFORDABLEEARLY EVACUATION POOL"; PROVIDING FOR SEVERABILITY; PROVIDING FOR THE REPEAL OF ALL CODE PROVISIONS AND ORDINANCES INCONSISTENT WITH THIS ORDINANCE; PROVIDING FORle INCLUSION IN THE CODE; PROVIDING FOR THE TRANSMITTAL OF THIS ORDINANCE TO THE FLORIDA W 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 380.05, Florida Statutes. 0 ■ 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. v • A copy of the complete amendment package including supporting data and analysis has been mailed to all of LO the required review agencies on the date of this letter. Lu • The amendment is not proposed to be adopted under a joint planning agreement pursuant to Section 163.3171, Florida Statutes. m ■ The amendment does not update the five-year schedule of Capital Improvements. 0 ■ There were no requests for citizen courtesy information. Page 2 of 3 Packet Pg. 3685 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 Islamorada,Village of Islands CL 86800 Overseas Highway 0. Islamorada, Florida 33036-3162 0 Phone 305.664.6422 Fax 305.664.6464 N PlanningDirector@islamorada.fl.us 0 Thank you in advance for your timely review of these materials. Should you have any questions about the proposed amendments, please contact us. 0 0 Sincerely, y Ty Harris, Esq. Director of Planning 0 U Encl. Cc: Corey Aitken, Resiliency Planner& Economic Development,SFRPC Sent Electronically W 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 Kylene J.Casey,Growth Management& Legislative Liaison, FDOE Sent Electronically Village Council (no enclosures) Sent Electronically Seth Lawless,Village Manager(no enclosures) Sent Electronically Roget.V. Bryan,Village Attorney(no enclosures) Sent Electronically 0 LO LU 0 Page 3 of 3 Packet Pg. 3686 S ORDINANCE NO. 19-03 0 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- N 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 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 N DEPARTMENT OF ECONOMIC OPPORTUNITY; AND PROVIDING FOR AN EFFECTIVE DATE UPON APPROVAL OF THIS ORDINANCE BY THE FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY 0 in 2001, Islamorada, Village of Islands, Florida(the"Village")adopted the W Village Comprehensive Plan Village Comprehensive Plan(the"Comprehensive Plan'j which has been determined to be compliant by the State Department of Economic rtiunDEO OpPa tY {" '), formally the Department of Community Affairs("DCA'j; and WHEREAS,the Village is located within the Florida Keys Area of Critical State Concern (the"FKACSC")as established pursuant to Chapter 380,Florida Statutes;and WHEREAS, Section 163.3184, F.S.,establishes a process for adoption of comprehensive LO 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. 3687 Plan by adding Goal 3-2 "Workforce-Affordable Housing Initiative" and associated Objectives S and Policies;and c WHEREAS, the proposed amendments further the goals, objectives and policies of the Village Comprehensive Plan; and CL 0. 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 to the Comprehensive Plan; and WHEREAS, the Village Council finds that the proposed amendments to the N 0 Comprehensive Plan are consistent with the Village Comprehensive Plan, the Principles for U 0 Guiding Development.in the Florida Keys Area of Critical State Concern and are in the best 0 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 this reference. Section 2 Amending Chanter 3 " onsing Element" to Establkh Goal- 3-2 c "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 Lo 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 'ci ate 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. 3688 i Housing Initiative wiII Mouire My MAicipatin new co 'an or MaMsed gauctures to commit to evacuating renters within the 48 to 24-hour window of evacuation from the Vill e. c Objective 3-2.1 - Provide Workforce- o ble Ho n Building Permit Allocations. Pwrsuant to Objective 3-1.1. the Village has worked with the State Dgyartmcnt of Economic OpRg=ity to "pmvjde W-tqmAtive solutions to i rove access to affordableCL housing." The Villa a theref shall establish a new limited cam to be known as the "'Affordable-Early Evacuation Pool" for 300 workforce-affordable building_Rgmft. allocations to 'ciyate in the Workforce-Affordable Housing Initiative These allocations are in addition to the maximum allocations identified in Rules 28-19 Florida Administrative Code. The Village dwALbe mMnAble for th en dist6butiorL and enforcment of reggjrementg associated with the POA allocations. The Villne of Islarnorada.shall ensure adherence to these mguircomm throu im lementin the olicies of this obiective. > 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 of the Village's Land lopment Re lations and in accordance with the BPAS procedures established in Chapter 30 Article 4 Division 11 "Building Permit Allocation S PAS . 4- Pole 3-2.1.2 - S ndards and 'remen for Wo orce- AffR.rdable Housing. CD Workforce-Riordable housing units built under this pm " shall: a.. be multif miffy structures,• b. be rental units-, c. require, at a minimum, adherence to the latest edition of the Florida Buildin ode as Ru-b-l-iAh_ed by the Flon :&BuiL&jMCommission: d. not p in the V-Zone or within the C Barrier Resource Sy ems e. require on-site RMU!y g f. coWl-y with a licable habitat and other location] criteria and densitie"far multifamily affordable housing units: g. shall not be Rlwed in any habitat defined as yes. Wtmarsh buttonwood. UQRi: 1 JuWwood hammock or water wetIands (except for di d categories) y h. incorporate susW=ble and resilient design principles into the overall LO site design: i. ensure accessibility to employment centers and 'ties: j. require deed-restricdons enmdjm that: i. the remains wo rkforce- ble housinst in etui �° ii. tenants evacuate during the pg1jod in which transient units are rewired to evacuate-, Page 3 of 6 Packet Pg. 3689 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 residen iv. onsite pMgly man ers are formally trained in evacuation CL Policy 3-2.13—Evacuation exemptions. Persons living in workforce-affordable housing who are exempt from evacuation MQuiremenu of Polic 2-1.2.9 includes 0 all first res onders 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 faithfully certified their status with property management. P ii 3-2.1.4—ADA Com fiance. All workforce-affordable housing developments must demonstrate compliance with all applicable federal standards for accessibility for persons with disabilities. Poll 3-2.1A -Evaluation and Re orL The village of Islamorada shall provide an Annual rt to the state land planning ageM on the proUM and im lementation of the Workforce- Affordable Housing Initiative.R orted inform ati n far h ear shall include documentation of the number of workforce-affordable units built- OCMMM-CY rates and com fiance with the uirement to evacuate the units within the Phase I evacuation. Such rt shall be or vided to the State in a fiMely manner such that the State may include the information in there uired Annual &prt to the Governor and Cabinet on the Village of Islamorada's RmgLess ward W com letion of its Work ProgMM Mouant to Rule 28-19 of the F.A.C. ca Section . TransmittaL 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 Department of Economic Opportunity(the"DEO"). Section . Seve ' ity.The provisions of this Ordinance are declared to be severable LO 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 6 1 Packet Pg. 3690 Section cive Date. This Ordinance shall not be effective immediately upon S adoption. However,the Amendment shall not take effect until the date the foal order is issued by the 0 Department of Economic Opportunity to be in compliance in accordance with Chapter 163.3184, CL Florida Statutes. The Department of Economic Opportunity ("DEO") notice of intent to find the 0. 0 Amendment in compliance shall be deemed to be the final order if no timely petition challenging the �? N Amendment is filed. c 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: > :Mayor Deb Gillis YES Vice-Mayor Mike Forster YES Councilman Ken Davis YES Councilwoman Cheryl Meads YES e Councilman Jim Mooney YES 0 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 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. 3691 APPROVED AS TO FORM AND LEGALITY FOR THE USE AND BENEFIT OF ISLAMORADA, VILLAGE OF ISLANDS ONLY c CL ROGET V. BRYA ,VILLAGE ATTORNEY 0 N c 0 2 0 4- 0 i c Lo Lu 4 -F A Packet Pg. 3692 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 0 Mr. Ray Eubanks Administrator Plans Review& Processing Florida Department of Economic Opportunity CL 107 E. Madison Street 0. Caldwell Building, MSC 160 Tallahassee, Florida 32399 N RE:Transmittal of Ordinance 2018-009 upon Second Hearing (Comp Plan Amendment 2018-01ACSC) Dear Mr. Eubanks, Ordinance 2018-009 is an amendment to the City of Marathon Comprehensive Plan and is therefore subject to State Coordinated Review process pursuant to Section 163.3184(4), Florida Statutes. The Ordinance included herein was adopted by the City of Marathon City Council on October 23, 2018. The Ordinance represents a modification to the procedures for the Building Permit Allocation System to 0) specifically allow 300 Workforce Early Evacuation Residential Units. 0 This transmittal package contains one (1) hard copy and two (2) CD's of relevant documents including c CD executed Ordinance, staff agenda reports, and other pertinent materials. Having been transmitted by the City of Marathon, please accept this adoption package on behalf of the U) Department of Economic Opportunity. co Copies of this transmittal have been sent to all appropriate review agencies. CD co N C 0 LU Packet Pg. 3693 S.1.j 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, 0 N George Garrett, Director of Planning garrettg t)ci.marathon.fl.us City of Marathon Phone: (305) 289-4111 Fax: (305) 743-3667 garrettg ki.marathon.fl.us 0 2 cc: City Clerk 0 City Attorney Isabella Cosio Carballo, South Florida Regional Planning Council � Deena Woodward, Department of State, Bureau of Historic Preservation CD Scott Sanders,Florida Fish and Wildlife Commission Comp Plan Review, Department of Agriculture and Consumer Services Plan Review, Department of Environmental Protection U Terry Manning, South Florida Water Management District Shereen Yee Fong, Florida Department of Transportation ' Kylene Casey, Department of Education i Christine Hurley, Monroe County Growth Management Director , cv C 0 U Packet Pg. 3694 S.1.j COUNCIL AGENDA STATEMENT `i'�l�p,§ � tl Meeting Date: October 23, 2018 10 To: Honorable Mayor and Council Members From: George Garrett, Planning Director c c, 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 2� Provisions; Providing For The Transmittal Of This Ordinance To The State Department Of Economic Opportunity; And Providing For An Effective Date. 0 RECOMMENDATION: 2 The City Council unanimously voted for approval of this Ordinance in its first hearing on September 0 11, 2018. This is the second hearing for this Comprehensive Plan amendment. No changes have been 0 made to the Ordinance and the Department of Economic Opportunity has approved the Comprehensive ?: CD 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 t) 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 co 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. 9 Similarly, the proposed amendment meets the intent of the Workforce-Affordable Housing Initiative co set forth by the Administration Commission. C44 APPLICANT: City of Marathon C 0 REQUEST: Amend City of Marathon Comprehensive Plan by Adding Goal 1-4, concerning the Workforce-Affordable Housing Initiative. ANALYSIS OF COMPREHENSIVE PLAN CHANGE REQUEST: Preface The current Land Development Regulations provide only brief guidance concerning the review of a proposed Comprehensive Plan Amendment. Packet Pg. 3695 S.1.j Section 102.19 simply states: Section 102.19. Standards for Review. 0. When considering an application for a Comprehensive Plan Amendment, the review shall include all standards and criteria of Fla. Stat. ch. 163. CL Standards in Chapter 163, F.S. offer some additional guidance, but are limited. Pertinent sections of a. Chapter 163 promulgate process rather than establishing criteria for the development of a proposed c 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 :5 "compliance" which is recited for review below: o 163.3184 Process for adoption of comprehensive plan or plan amendment.-- � (1) DEFINITIONS.--As used in this section, the term: (b) "In compliance" means consistent with the requirements of ss. 163.3177, when a local government adopts an educational facilities element, 163.3178, 163.3180, 163.3191, and 163.3245, with the state comprehensive plan,with the appropriate strategic regional policy plan, and with chapter 9J-5, Florida Administrative Code, where such rule is not inconsistent with this part and with the 0) principles for guiding development in designated areas of critical state concern and with part III of 2 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 0 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 bodies to a finding of"in compliance"by the State Land Planning Agency. Review is contemplated and expected to be completed by such agencies as the South Florida Regional co 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 co definition of compliance and elsewhere Chapters 163.3177, 163.3191, 163.3245, and 369 will not beCD 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 0 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, 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. � E Packet Pg. 3696 S.1.j 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 S 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, 0 3, & 4 attached or with website references for your review CL Compliance Discussion a. 0 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 o Wetlands o Estuaries o Living marine resources o Beaches/Dunes o Unique wildlife habitat o Water Quality • Historical Resources 0 • Infrastructure/ Concurrency Management o Wastewater 2 0 o Stormwater o Potable Water c o Solid Waste o Transportation �? • Affordable Housing v) • Hazard Mitigation o CHHA o Hurricane Evacuation co c, i • Ports o Marina Siting co' T- • Public UseCD o Shoreline use and Access o Water dependent and independent activity • Land Acquisition 0 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. E Packet Pg. 3697 S.1.j 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 2 affordable residential units identified as "Early Evacuation" Affordable Residential Allocations. 0 ANALYSIS Natural Resources 0 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 2� incidental take permit to FEMA from FWS. See Exhibit 1 —FEMA-FWS documentation Historical and Cultural Resources y 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 0 change. Infrastructure No Significant Impact would result from the proposed change. U) �t Wastewater infrastructure co i No Significant Impact would result from the proposed change. See Exhibit 3 co T_ CD Stormwater infrastructure The City of Marathon developed an award winning stormwater system simultaneous with the 0 construction of its wastewater system for City owned rights-of-way. Stormwater is otherwise 0 managed on site through the City's stormwater Ordinance (see Exhibit 4). No Significant Impact would result from the proposed change. See Exhibit 4. Potable Water x No Significant Impact would result from the proposed change. See Exhibits 5a& b E Solid Waste Packet Pg. 3698 S.1.j No Significant Impact would result from the proposed change. Transportation c LOS for U.S. 1 and adjoin streets is well within LOS standards for transportation. No Significant 0 Impact would result from the proposed change. See Exhibit 6 Affordable Housing CL 0. The proposed amendment will significantly enhance the City's continuing efforts to enhance 0 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. Coastal High Hazard Areas No Significant Impact would result from the proposed change. c 2 Hurricane Evacuation 0 0 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 Storm Force Winds in the Keys. Already, the Emergency Management Departments within the U) Florida Keys coordinate the evacuation of not only their permanent residents, but the temporary C residents visiting the Keys in the short term. Conceptually, adding the "Early Evacuation Residential 9 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 T- municipalities of the Florida Keys accomplishes this statutory axiom. Thus, requiring that some 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. 0 Ports—Marina Siting No Significant Impact would result from the proposed change. LU Public Use—Access to Water E No Significant Impact would result from the proposed change. Packet Pg. 3699 S.1.j Land Acquisition The proposed amendment will utilize existing land acquisition mechanisms to further the purposes of S providing affordable housing within the City. Because of the critical nature and need for affordable 2 housing at this time, funding provided to the Monroe County Land Authority and funds provided 0 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 2 utilized for the purchase of such lands. . E 0 Alternate Compliance Review Criteria 0 N 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 2� to this proposed amendment are listed below: A. The need and justification for the change; 0 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 0 BPAS allocations both as a reality of the costs of living in the Florida Keys and because of the 0 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.,, The need for new affordable housing is overwhelming because of the impacts of the storm and U) the significant loss of affordable units to Hurricane Irma. co B. The consistency of the proposed amendment with the Comprehensive Plan; andco Comprehensive Plan Policy 1-3.5.9, requires that the City "shall work with the State to obtain T_ CD more residential allocations specifically for affordable housing." The Administrative Commission's Workforce-Affordable Housing Initiative is the result of the City's efforts to obtain more affordable allocations. r_ 0 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, x regulations and actions designed to implement the Comprehensive Plan by providing the mechanism to obtain and implement the Workforce-Affordable Housing Initiative.. E CONCLUSION: Packet Pg. 3700 S.1.j The proposed Amendment is consistent with and furthers the goals of the City of Marathon Comprehensive Plan and Land Development Regulations. S RECOMMENDATION: The City Council unanimously voted for approval of this Ordinance in its first hearing on September 0 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. L E 0 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 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. 3701 S.1.j COUNCIL AGENDA STATEMENT ' ,+ c Meeting Date: October 23, 2018 c To: Honorable Mayor and Council MembersCL '��b 0. From: George Garrett, Planning Director c c, 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 2� Provisions; Providing For The Transmittal Of This Ordinance To The State Department Of Economic Opportunity; And Providing For An Effective Date. 0 RECOMMENDATION: 2 The City Council unanimously voted for approval of this Ordinance in its first hearing on September 0 11, 2018. This is the second hearing for this Comprehensive Plan amendment. No changes have been 0 made to the Ordinance and the Department of Economic Opportunity has approved the Comprehensive ?: CD 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 t) City Council by unanimous vote. The City Council directed the transmittal of this Ordinance to the State Department of Economic Opportunity on September 11, 2018. The Department of Economic co 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. 9 Similarly, the proposed amendment meets the intent of the Workforce-Affordable Housing Initiative co set forth by the Administration Commission. C44 APPLICANT: City of Marathon C 0 E REQUEST: Amend City of Marathon Comprehensive Plan by Adding Goal 1-4, concerning the Workforce-Affordable Housing Initiative. ANALYSIS OF COMPREHENSIVE PLAN CHANGE REQUEST: LU Preface The current Land Development Regulations provide only brief guidance concerning the review of a proposed Comprehensive Plan Amendment. Packet Pg. 3702 S.1.j 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 0 standards and criteria of Fla. Stat. ch. 163. CL Standards in Chapter 163, F.S. offer some additional guidance, but are limited. Pertinent sections of a. Chapter 163 promulgate process rather than establishing criteria for the development of a proposed 0 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 :5 "compliance" which is recited for review below: o 163.3184 Process for adoption of comprehensive plan or plan amendment.-- � (1) DEFINITIONS.--As used in this section, the term: (b) "In compliance" means consistent with the requirements of ss. 163.3177, when a local government adopts an educational facilities element, 163.3178, 163.3180, 163.3191, and 163.3245, with the state comprehensive plan,with the appropriate strategic regional policy plan, and with chapter 9J-5, Florida Administrative Code, where such rule is not inconsistent with this part and with the 0) principles for guiding development in designated areas of critical state concern and with part III of 2 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 0 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 bodies to a finding of"in compliance" by the State Land Planning Agency. Review is contemplated and expected to be completed by such agencies as the South Florida Regional co 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 co definition of compliance and elsewhere Chapters 163.3177, 163.3191, 163.3245, and 369 will not beCD 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 0 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, 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. � E Packet Pg. 3703 S.1.j 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 S amendment will be analyzed against the limited compliance issues found in sections of Chapter 163 0. F.S. and Chapter 380 F.S. noted immediately above. Relevant sections are provided in EXHIBITS 2, 0 3, & 4 attached or with website references for your review CL Compliance Discussion a. 0 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 o Wetlands o Estuaries o Living marine resources o Beaches/Dunes o Unique wildlife habitat o Water Quality • Historical Resources 0 • Infrastructure/ Concurrency Management o Wastewater 2 0 o Stormwater o Potable Water c o Solid Waste o Transportation �? • Affordable Housing v) • Hazard Mitigation o CHHA o Hurricane Evacuation co c, i • Ports o Marina Siting co' T- • Public UseCD o Shoreline use and Access o Water dependent and independent activity • Land Acquisition 0 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. E Packet Pg. 3704 S.1.j 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 2 affordable residential units identified as "Early Evacuation" Affordable Residential Allocations. 0 ANALYSIS Natural Resources 0 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 No Significant Impact would result from the proposed change. Infrastructure 0 No Significant Impact would result from the proposed change. 0 Wastewater infrastructure 0 No Significant Impact would result from the proposed change. Stormwater infrastructure U) e( No Significant Impact would result from the proposed change. CO Potable Water CO No Significant Impact would result from the proposed change. CD Solid Waste r_ No Significant Impact would result from the proposed change. c Transportation No Significant Impact would result from the proposed change. x Affordable Housing The proposed amendment will significantly enhance the City's continuing efforts to enhance affordable housing in the Keys. Packet Pg. 3705 S.1.j Hazard Mitigation No Significant Impact would result from the proposed change. c 0 Coastal High Hazard Areas No Significant Impact would result from the proposed change. L 0. 0 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 No Significant Impact would result from the proposed change. Public Use—Access to Water c 2 No Significant Impact would result from the proposed change. 0 0 Land Acquisition CD The proposed amendment will utilize existing land acquisition mechanisms to further the purposes of providing affordable housing within the City. U) e( Alternate Compliance Review Criteria CO Since there are no internal Comprehensive Plan change review criteria available in Chapter 102, 9 i Article 6, those that would apply for an LDR text change request(Chapter 102, Article 7) are useful. CO CD 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 0 criteria be considered for any proposed text amendment. Each criteria and explanation of relevance 0 to this proposed amendment are listed below: 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 E 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. 3706 S.1.j 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. c 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 2 more residential allocations specifically for affordable housing." The Administrative 0. Commission's Workforce-Affordable Housing Initiative is the result of the City's efforts to E 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: The proposed Amendment is consistent with and furthers the goals of the City of Marathon c Comprehensive Plan and Land Development Regulations. W 2 0 4- 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. U) �t The Planning Commission heard the item on August 20, 2018 and recommended transmittal to the co 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 LU Packet Pg. 3707 S.1.j Sponsored By: Lindsey Planning Commission Public Hearing Date: August 20, 2018 City Council Public Hearing Date: September 11, 2018 October 23, 2018 2 Enactment Date: October 23, 2018 0 CITY OF MARATHON, FLORIDA ORDINANCE 2018-09 0 N 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 FOR SEVERABILITY; PROVIDING FOR THE REPEAL OF CONFLICTING PROVISIONS; PROVIDING FOR THE TRANSMITTAL OF THIS ORDINANCE TO THE STATE DEPARTMENT OF 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"), pursuant to Chapter 163, Florida Statutes; and U) �t WHEREAS, the City is located within the Florida Keys Area of Critical State Concern co (the"FKACSC"), as established pursuant to Chapter 380, Florida Statutes; andco WHEREAS, pursuant to the provisions of Chapters, 163, 166 and 380 Florida Statutes, T_ CD the City of Marathon, Florida (the "City") proposes to amend Chapter 1, "Future Land Use Element," of the Comprehensive Plan; and r_ WHEREAS, adding Goal 1-4, "Workforce-Affordable Housing Initiative," and 0 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 x 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 E recommended approval of the proposed Map amendment to the City Council; and Packet Pg. 3708 S.1.j 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 c WHEREAS, the State Department of Economic Opportunity returned a favorable 0 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 CL 0. WHEREAS, pursuant to the same legislative provision, the City Council accepted the c 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 n 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 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 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, 0 0 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CD CITY OF MARATHON, FLORIDA THAT c+r-iket„-at .i, = deletion bold underline= addition co SECTION 1. The above recitals are true, correct, and incorporated herein by this reference. co CD SECTION 2. Amend the Comprehensive Plan, Chapter 1, Future Land Use Element, to include Goal 1-4 and related objective and policies: r- Goal 1-4 Workforce-Affordable Housing Initiative. c 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 approved during the June 13, 2018 meeting of the Administration Commission. The Workforce-Affordable Housing Initiative will require new construction or repurposed LU structures that participates to commit to evacuating renters in the 48 to 24-hour window of evacuation. E 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. 3709 S.1.j 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 2 known as the "Affordable - Early Evacuation Pool" which will provide 300 0 workforce-affordable building permit allocations for the Workforce-Affordable Housing Initiative. These allocations are in addition to the maximum allocations identified in Rules 28-18, Florida Administrative Code. The City shall be c' 0. responsible for the management, distribution, and enforcement of requirements c 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 102, Articles 1 through 4 of the City's Land Development Regulations and in accordance with the BPAS ranking procedures established in Chapter 107, Article 1, `Building Permit Allocation System (BPAS). � 0 2 Policy 1-4.1.2 - Specific Standards and Requirements for Workforce- 0 Affordable Housing. 0 Affordable-Early Evacuation residential units under this program shall: a. be multifamily structures; b. be rental units; v) c, c. require, at a minimum, adherence to the latest edition of the Florida Building Code as published by the Florida Building co Commission; d. not be placed in the V-Zone or within the Coastal Barrier Resource Systems; T- 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 c & buttonwood, hardwood hammock, or fresh water wetlands (disturbed categories excepted); h. incorporate sustainable and resilient design principles into the overall site design; LU i. ensure accessibility to employment centers and amenities; j. require deed-restrictions ensuring: E (i) the property remains workforce-affordable housing in perpetuity; e( 'Additions to existing text are shown by underline;deletions are shown as Packet Pg. 3710 S.1.j (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 2 evacuation requirement could result in severe penalties, 0 including eviction,to the resident; (iv) onsite property managers are formally trained in evacuation procedures. C. 0 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. Policy 1-4.1.4—ADA Compliance. All workforce-affordable housing developments must demonstrate 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 W annual report on the progress and implementation of the Workforce- Affordable Housing Initiative. Reported information shall include documentation of the number of workforce-affordable units built, occupancy 9 co 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 9 manner such that the State may include the information in the required T- 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. 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, w 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. E 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. 3711 S.1.j Sections 380.05(6) and (11), Florida Statutes. SECTION 5.This Ordinance shall be effective immediately upon approval by S DCA pursuant to Chapters 163 and 380, Florida Statutes. 2 0 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, c FLORIDA, THIS 23RD DAY OF OCTOBER, 2018. N THE CITY OF MARATHON, FLORIDA Michelle Coldiron, Mayor a AYES: NOES: c ABSENT: 2 ABSTAIN: 0 ATTEST: co Diane Clavier, City Clerkco APPROVED AS TO FORM AND LEGALITY FOR THE USE T- CD AND RELIANCE OF THE CITY OF MARATHON,FLORIDA ONLY: `~ C 0 David Migut, City Attorney LU 'Additions to existing text are shown by underline;deletions are shown as Packet Pg. 3712 S.1.j Sponsored By: Lindsey Planning Commission Public Hearing Date: august 20, 201 City Council cil Public Hearing in Date: September 11201 October 23, 201 Enact e t ate-, October 23, 2018 0 CITY OF MA-RATHON, FLORIDA 0. 0 AN ORDINANCE OF THE CITY OF MARATHON, LOI I . : , N AMENDING THE CITY'S COMPREHENSIVE PLAN, ADDING GOAL - AND ASSOCIATED OBJECTIVES AND POLICIES TO CHAPTER 1, "FUTURE LAND USE ELEMENT;" AND GOALI-4 StIALL III KNOWN AS 'THE "WORKFORCE-AFFORDABLE HOUSING INITIATIVE" PROVIDING FOR A IN ADDITIONAL 300 AFFORDABLE ALLOCATIONS TO AN ALLOCATION POOL TO III IDENTIFIED AS,THE AFFORDABLE-EARLY EVACUATION POOL;" AND PROVIDING FOR EVE ABILIT ' PROVIDING FOR TIIE. I EPrA.L OF CONFLICTING PROVISIONS; PROVIDING FORTHETRANSMITTAL OF THIS l I CE TO THE STATE DEPARTMENT OF ECONOMIC IC OPPORTUNITY AFTER R FINAL ADOPTION BY THE CITY w COUNCIL; AND PROVIDING SIDING L'C .. AN I1,FFEC:'TI 'I'J.. 2 0 4- WHEREAS. the City of Marathon (the -City") has adopted a Comprehensive flan which c has been .1"ound to be in crsrnplian,ce by the :State Department of Community Affairs ("I)C A".) pursuant to C'haptc:r 1 Ci). Florida Statutes; and WHEREAS, the City is located within the Florida Keys Area of Critical State Concern ca (the °`l„ A.C'SC") as established pursuant to Chapter 3 80, Florida Statutes and co 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 co Elernent," ofthe 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 flap amendment to the City Council: and � Packet Pg. 3713 S.1.j 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, 0. 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 CL `L ORC l epost., considered the recommendation of the Planaaing Commission, accepted additional 0. 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 of`Economic Opportunity as for-malty 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 flan. the State flan, Chapter 163- f7orida Srataues. the principles for guiding development in the.: Florida Keys Area of Critical State Concern, the goals. o jectir es, � and policies of the flan, Chapter 102, Article 6 of the Code, and promotes and protects the health, safety and welfare of the residents ofthe City, and � WHEREAS. the City Council desires to approve the proposed amendment pursuant to Chapter 1 b-3.3184 I°.S., in accordance; with State law. U NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE +14lea-taa #1i deletion bold underline addition c, SECTION I. The above recitals are true;,: correct_ and incorporated herein by this reference. coCD I SI:<C.'TI .. Aniend the Comprehensive Plan. Chapter 1. Future Land (Ilse lulement. to co include. Goal 1-4 and related objective and policies: . cv Goal 1-4 rorkfoi-ce-Affoi- able Housing Initiative. To supVort the Cit o Mara �°oi-kforce by alleviating constraints on affordable ousin the Citv shall aarticip,aate in the Workforce-Affordable Housing, Initiative as as a roved dui-in tie Jeans 1 2018 eetin of the administration Commission. The Workforce-AffordableHousing,_Initiative will re wire new construction or re ur. osed structures that partigipaLelto commit to evacuating renters in the 48 to -hour_window o evacuation® LU Objective 1- ..1 Provide Workforce-Affordable Housigg Building Permit Allocations., Additions to existing,text are shM%11 h Rtrt€;lCtaMCt &10100e atv,ht%kn a,,-t,wi ¢AI,romgh Packet Pg. 3714 S.1.j Pursuant to Pralie l- < . the City has worked with the State lie artnaent of Economic Opj2ortunih, to "obtain more residential allocations s ecificall�� for affordable housin z, ' T`he City thereby,shall establish a new limited category to be known as the "Affordable - Early Evacuation Pool" which will arovide 300 wwrarliforce-affordable building permit allocations for the Workforce-Affordable 0. l rausira ° Initiative. These allocations are in addition to the maximum allocation Cu identified in Mules -1. Florida Administrative Code. The City,,—shall be responsible for the management distribution and enforcement of rµc uire eats CL associated with the Early Evacuation Affordable allocations. The it_v of Marathon shall ensure adherence to these re uirements through implementation eaf the policies e of this objective. ca _ N Policy f- .14 _ --- Distribution of Workforce-Affordable Housing llocatirans. ork,force-affordable housiaa ,allocations shall be distributed at any time through adcA crate _ able notice and hearing procedures pursuant to Chaptei 102, Articles 1 through of the Citvs Land Development Regulations and in � accordance with the BPAS rarrkin _procedures established in 'lea ter4 lfi Artiele l9 `` 3uilding leer at Allocatirara w° � AS). Policy 1- .1. - Specific_Standards and Ike. uirements for Workforce- 0 ffordable Housing, - e U > ffordable l:"arly Evacuation residential units gander dais rcr rare shall. 12 a. be multifamily structures, b. be rental awaits c. re uire at as minimum,2adherence to the latest edition of the W Florida Building 'ode as published by the Florida Buildingca C€raaimissicarr c, d. not be trlaced in the ,a- cane or within the Coastal Barrier Resource SysLtems, CO' e. require earn site r—O rty management; l f. crai atwly with a talicaable habitat and rather locational criteria and CO densities for as ultrfamilw affordable housin awaits: T- -- - CD f;. shall not be placed in anv habitat defined as mangroves,saltinarsh buttonwwopd hardwood hara mock car fresh water wetlands Ldisturbed categories excepted) h. incrsr earaate sustainable and resilient design principles into the overall site desity i erasure accessibility to employment centers and amenities j. re uir e_deed-restrictions ensuring: (i) the larea erty remains workforce-affordable housing in a`a�rraetuitw' � iij tenants evacuate during the ,faerTirad irr wwlaich tr-arasierrt awaits ,are rertuired to evacuate4 "Uhtlons to Q.tii,ran-text are,ho"n l» nndcrltnc deletiogi,+are^,'lio ti a,�tral C,9�r kt �7 Packet Pg. 3715 S.1.j (iii) rental_agregiments contain a setaaaraate disclosure rcclaairin renters to ackaacrvyled e that failure to adhere to the evacuation recjaairement could result in severe peaaaalties, inclu in evictiaan to the resid a t (iv) nsite ro ert t manatgers aare formally trained lay evacuation )rocedu es 0 Poliey 1-4.1 3 — Evacuation e eaaaaatiaaaas, CL Pei-sons ljjj g lea workforce-affordable hcaaslai ho are exeMDt from 0. evacuation requirements of Pcalac 1 1 2 a. ii) include all lrst a-esMders, correction officers health caarc )rofessionals car rather first-res a2gl Mrkers re uired to remain during an er eaac �a a��We the ea s as cl iaaalaa e eaaa tiaaaa as ader this lice has "aithfully certified their status w th ro erty - - maanaa Lenient. Policy 1- .1. — ADA Cogipliance. All workforce-affordable housing develoEnients must demonstrate compliance with all aaWicaable federal standards for accessibilityfor Pea-sasses with disabilities. P21ic.y 1 1 -Evaluation and Report. The 1tv of Marathon shall rca�isle tlae state land laaaaaaiaa� a erac� with sera 4- le annual report on the protyress and implementation f the orkforce- Affcardaahle Rousing Initiative. Ike gcartecl information shall include CD documentation of the number of workforce-affordable units built kcal ;aaac r _ rates, andcompliance with the rec�aairement to evacuate the units in the ca Phase I evacuation. Said retacart shall he provided to the State in a timely manner such that the State may include the information in the -required co Annual nual Report to the Governor and Cabinet on the City of Marathon o ress turd completion of its Work Pro grain paarsuant to Goal -1 of tlae co `ity's Comprehensive Plan and hale 2 -1 , A.C. r- 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 cal`the remaining sections- sentences, clauses, and phrases of this Ordinance but they shall remain in elf'ect, it being the legislative intent that: this Ordinance shall stand ncatw ithstandino the invalidity of aanv 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 for and a copy of this Ordinance to the DC.A and rather state agencies ices- review and approval pursuant to Sections 380.05(6) and (1 l ), Florida Statutes, 'Addilikiris to exi to g tQxt,ne sloown bN undcrhne.delajons,are Jtfrwn a,tm4ka8firouN11 Packet Pg. 3716 S.1.j SECTION .This Ordinance shall be etT cove immediately upon approval by I CA pursuant to Chapters 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. THE CITY OF MARATHON, FLORIDA Michelle Coldiron, Mayor A YF"S: Zieg, Cook,, Senmartin, f artUS, Coldiron NOES: None ABSTAIN: None ABSFNT: None ATTEST: 2 4- s pa+L D' iane Clavier, C;at� e k..._. ca y 13ROVED AS TO FORM AND LEGALITY FOR H USE AND RELIANCEOFTHE CITY OF MARATHON, FLORIDA ONLY: co CD co CD 1 f �' CD ` cv DaN:.ic 1igut' City` .` ttorney C 0 LU Add i tions to c,%w5tusi Lem are,fjcrsr-rt I:k tbFi&rl�j e cl lcn t n r sl��xc�7 a ,�ff•Hk��e aac}e� ai Packet Pg. 3717 S.1.k IN THE DISTRICT COURT OF APPEAL OF FLORIDA 0 THIRD DISTRICT CL 0. DECEMBER 28, 2020 �i N 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., Appel lee(s)/Respondent(s), Upon consideration of Appellants' Motion for Review and Reversal 0 of Lower Tribunal's Denial of Motion to Stay Its Final Order and Motion for Stay 2 4- of Final Order on Review, the Department of Economic Opportunity's final order 0 CD issued on December 23, 2020, is temporarily stayed pending further order of this Court. Appellees are ordered to file a response within fifteen (15) days from the date of this Order to Appellants' Motion to Stay. 0 LOGUE, HENDON and LOBREE, JJ., concur. l i i F cc: Barton W. Smith Christopher B. Deem DEO Agency Clerk Packet Pg. 3718 S.1.k George B. Wallace Nicola Jean Pappas Richard J. Grosso Roget V. Bryan Shawn D. Smith Hon. Susanne Van Wyk 0 is CL 0. N N Packet Pg. 3719 EE= FINAL ORDER NO. DEO-20-032 STATE OF FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY .2 CL 0 -0 M r— CECILIA MATTINO, CL Petitioner, E 0 to VS. .E DOAH CASE NO.: 18-625OGM CITY OF MARATHON, FLORIDA, r- 0 M Respondent, U M 21 M NAJA GIRARD, 0 Petitioner, cs VS. 0 DOAH CASE NO.: 19-1526GM 0 CITY OF KEY WEST, FLORIDA, Respondent, E .................... CATHERINE BOSWORTH, E M Petitioner, U as VS. 0 DOAH CASE NO.: 19-183 9GM CL ISLAMORADA, VILLAGE OF ISLANDS,FLORIDA, Respondent, 0 M U. ....................... ..... 0 FINAL ORDER This matter was considered by the Division of Community Development within the Florida E Department of Economic Opportunity ("Department") following the receipt of a recommended U Packet Pg.37720 S.1.k 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"). 2 0 Background This is a proceeding to determine whether the City of Marathon ("Marathon") CL 0 Comprehensive Plan Amendment 2018-01, adopted on October 23, 2018 ("Marathon Plan y r Amendment); City of Key West ("KeyWest") Comprehensive Plan end e t 19-06, adopted 0 on March 5, 2019 ("Key West Plan Amendments"); and Islamorada, Village of Islands U Ca 5^Y5 M ("Islarnora a") Comprehensive Plan Amendment 19-03, adopted on April 4, 2019 ("Isla orada 0 21 L Plan Amendment" (collectively"Plan Amendments") are"in compliance," as dcfined in section M as 163.318 (1)(b), Florida Statutes (2018).1 0 On November 26, 2018, Petitioner Cecilia Mattino, filed a petition for an administrative U 0 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 y the petition and the Recommended Order on Remand,that the Marathon Plan Amendment renders a the City of Marathon Comprehensive Plan internally inconsistent, in violation of section M 163.3177(2),Florida Statutes.Moreover,the Petitioners challenge the Marathon Plan Amendment U as as not based on relevant and appropriate data and analysis. 0 On March 19,2019,Petitioner,Naja Girard, filed a Petition with the Division challengingCL the Key West Plan Amendment as violative of the Act on many of the same grounds. 0 On April 9, 2019, Petitioner, Catherine Bosworth, filed a Petition with the Division LL challenging the Islamorada Plan Amendment as violative of the Act on many of the same grounds a' as the other Petitioners. LU r E References to the Florida Statutes are to the 2018 version,which was in effect on the date the Plan Amendments U were adopted. r Q 2 Packet Pg.3721 S.1.k 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 0 CL 0 hearing on the Motion to Consolidate, the ALJ entered an Order of Consolidation on May 10, 2019. The consolidated cases were scheduled for final hearing on October 7 through 11, 2019; CL 0 however,the final hearing was continued and rescheduled to December 9 through 13, 2019. y r On April 24, 2020, the ALJ issued a recommended order, recommending the Department 0 issue a final order determining that the Plan Amendments are in compliance. On May 11, 2020, U M the Petitioners timely filed exceptions to the initial recommended order.On August 21,2020,after 21 the parties agreed, pursuant to Section 163.3184(5)(e)3., Florida Statutes, to an extension of time as for the Department to take final action, the Department granted in part Exception Number 17 of the Petitioners' initial exceptions,to the extent it raised the lack of findings of fact and conclusions U 0 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 y r ALJ issued a Recommended Order on Remand, a copy of which is attached hereto as "Exhibit "A." The Petitioners timely filed exceptions to the Recommended Order on Remand, which in M substance track the exceptions previously raised,aside from Exception Number 17,which address U as the additional findings of fact and conclusions of law included by the ALJ upon remand. 0 On November 7, 2020, the Petitioner's filed a "Motion for Conditional Stay Pending C Appeal,"requesting that if the DEO finds the Plan Amendments"in compliance,"to stay the legal 0 effect of the Final Order upon its rendition. On November 12,2020, Respondent's filed a Motion LL in Opposition. Respondent's argued that the pursuant to Rule 9.310(a) of the Florida Rules of a' Appellate Procedure,Petitioners could not stay the legal effect because the order had not yet been LU r rendered. E U r r 3 Packet Pg.3722 S.1.k 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 CL process shall go into effect pursuant to the state land planning agency's notice of intent. if timely challenged, an amendment does not become effective until the state land planning agency or the CL 0 Administration Commission enters a final order determining the adopted amendment to be in y r compliance." The Petitioners have not established that the Department has the jurisdiction to stay � 0 the effective date of the comprehensive plan amendments, which the Legislature has U M unambiguously declared goes into effect upon issuance of a final order. 21 M However, if the Department does have jurisdiction, ruling on a motion to stay involves as .y fact-finding. See MSQ Properties v. Florida Dept. of`Health & Rehab. Services, 626 So. 2d 292, 0 293 (Fla. 1 st DCA 1993) (`These determinations may require fact finding which is not a fimction 2 0 of this court.")-,see also Resolution Tr. Corp. v. Mayor&City Comn of City of'S. Miami, 633 So. `o 3 2d 1119, 1120 (Fla. 1st DCA 1994). The two factors relevant to the determination on whether to y r 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 M 1999).The Petitioners have failed to establish a stay is appropriate under either of the two factors. U M As to the likelihood of success on the merits, the Department has considered and rendered its 0 determination on the Petitioners' exceptions, which are discussed herein. As to the likelihood oCL harm, comprehensive planning is one part of the statutory scheme in place to effectuate land use 0 planning. Additional steps include the promulgation and review of local government land LL development regulations and local government issuance of development orders, both of which aJ include their own statutory provisions for challenging either administratively or in an appropriate LU r Circuit Court. See generally, 1 3.3215, Fla. Stat, §380.05, Fla. Stat. The harms allegedly U r r 4 Packet Pg.3723 S.1.k 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 2 0 have failed to present sufficient evidence that a stay of the effectiveness of the Final Order is necessary. Accordingly, if the motion is reviewable by the Department, it is denied without CL 0 prejudice for the reasons set forth above. y r Role of the Deraartment 0 Petitioners' challenges were filed pursuant to sections 120.569, 120.57(1), and U M 163.3184(5), Florida Statutes. The AU held a hearing and issued the Recommended Order on 21 M 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 Plan Amendments are in compliance and enter a final order to that effect, or determine that the U 0 Plan Amendments are not in compliance, and refer the Recommended Order on Remand and the Department's determination to the Administration Commission for final agency action. § y r 163.3184(5)(e),Fla. Stat. The Department has received a record consisting of copies of the parties' pleadings, the M documentary evidence introduced at the final hearing, and a five-volume transcript of the r U M proceedings of the final hearing. The Department has reviewed the record and issues this Final 0 Order in accordance with sections 120.57(1)(k)-(1) and 163.3184(5)(e),Florida Statutes. CL If the Department rejects or modifies a conclusion of law or interpretation of an 0 administrative rule,then the Department must state with particularity its reasons for such rejection U. or modification. § 120.57(1)(1), Fla. Stat. If the Department rejects or modifies a finding of fact, a' then the Department must state with particularity that the finding was not based on competent LU r substantial evidence or that the proceedings on which the finding was based did not comply with M U r r 5 Packet Pg.3724 S.1.k 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 CL ruling on each exception. The Department is not required to rule on an exception that does not clearly identify the disputed portion of the Recommended Order on Remand by page number or CL 0 paragraph, that does not identify the legal basis for the exception, or that does not include y r appropriate and specific citations to the record. § 120.57(1)(k),Fla. Stat. C 0 Standard of Review M U M Findings of Fact ' 21 Section 120.57(1)(1), Florida Statutes, prescribes that in its issuance of a final order, the a Department may not reject or modify the findings of fact of the ALJ "unless the agency first 0 determines from a review of the entire record, and states with particularity in the order, that the U 0 findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law." Evidence is y competent if it is admissible under the pertinent legal rules of evidence. Scholastic Book Fairs, 0 Inc. v. Unemplmt. App. Comm'n, 671 So. 2d 287, 289 n.3 (Fla. 5th DCA 1996). Evidence is M substantial if there is "some (more than a mere iota or scintilla) real, material, pertinent, and U M relevant evidence(as distinguished from ethereal,metaphysical, speculative or merely theoretical 0 evidence or hypothetical possibilities)having definite probative value(that is, `tending to prove') CL as to each essential element" of the claim. Id. The Department is "not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its LL desired ultimate conclusion."Heifetz v. Dept of Bus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCALU 1985). "If the ALYs findings of fact are supported by competent, substantial evidence,the agency LU r C cannot reject them even to make alternate findings that are also supported by competent, M U r r 6 Packet Pg.3725 S.1.k FINAL ORDER NO.DEO-20-032 substantial evidence."Lantz v. Smith, 106 So. 3d 518, 521 (Fla. 1st DCA 2013). The Department 0 may reject findings of fact if the proceedings on which the findings were based did not comply CL 0 with the essential requirements of law. See § 120.57(l)(1), Fla. Stat., and Dept. of Corrections v. r- radle�y, 510 So.2d 1122, 1123 (Fla. 1 st DCA 1987). In this context,Florida's First District Court CL 0 t� of Appeal has characterized a failure"to comply with the essential requirements of the law" as "a y r procedural irregularity."Beckett v. Dep't of Fin, ,Servs., 982 So. 2d 94, 102 (Fla. 1st DCA 20 ) 0 (ruling that the agency erred by concluding that the ALI had failed to comply with the essential U M requirements of the law "[b]ecause there has been no suggestion of a procedural irre 1 ty") 21 Conclusions of Law as .y Section 12 .57(1)(1), Florida Statutes, authorizes the Department o reject or modify a 0 U conclusion of law over which the agency has substantive jurisdiction. § 120.57(1)(1), Fla. tat., 0 Barfield v. Dept of Health, 805 So.2d 1008, 1010(Fla. lst DCA.2001). If the Department rejects `o 3 or modifies any of the ALYs conclusions of law,then the Department must state with particularity y r its reasons for rejecting or modifying the conclusion, and must make a finding that its substituted conclusion of law is as or more reasonable than that which was rejected or modified. § 120.57(1)(1), M Fla. Stat. The Department is not permitted to reject or modify a finding that is substantially one of U a fact simply by treating the finding as a legal conclusion, See Abrams v. ,Seminole Craty. BSc . Bd., 0 M CL 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. 0 0 Stat. r- '. LU Rulings on Petitioners' Exce)tions to Recommended Order on Remand (A) —Exception 1: Paragraphs 81,89,90,96,97, 102, and 199 LU r In Exception 1,Petitioners take exception to findings of fact and conclusions of law contained M U r r 7 Packet Pg.3726 S.1.k FINAL ORDER NO.DEO-20-032 in paragraphs 81, 89, 90, 96,97, 102, and 199 of the Recommended Order on Remand because,as 0 Petitioners argue,"the amendments clearly violate the unambiguous,plain language,24-hour limit o and express intent under the statute." The Department finds there is competent substantial evidence in the record to support the CL 0 ALFs Findings of Fact concerning the consistency of the Plan Amendments with the statutory Uy r requirements for comprehensive plan amendments to be held "in compliance." (Trans. pg. 104 0 Dec. 12, 2019) Additionally, the AU's findings of fact that the plan amendments are internally U M g consistent with the existing provisions of the local governments' comprehensive plans is supported 21 by competent substantial evidence. (Trans. pg. 122 Dec. 12, 2019; Trans. pg. 127 Dec. 12, 2019; .y Trans. pg. 222 Dec. 12, 2019; Trans pgs. 67-72 Dec. 13, 2019) To the extent the petitioners' exception argues the referenced paragraphs are incorrect legal conclusions, the Department has 0 considered Exception 1 and cannot substitute a legal conclusion as reasonable as or more reasonable than that reached by the ALJ. The potential addition of 1,300 affordable workforce y r units, subject to the early evacuation provisions, does not as a matter of law cause the Plan Amendments to be not"in compliance"as defined in section 163.3184, F.S. The early evacuation M requirements for the workforce affordable housing units are akin to the evacuation requirements r U as for mobile home inhabitants,military, and tourists,which are calculated in the 24 hours preceding 0 M CL the final 24 hours of evacuation. The Petitioners have failed to provide a legal conclusion that is as reasonable as or more reasonable than the ALJ's conclusion that the plan amendments are in 0 compliance as set forth in Section 163.3184, Florida Statutes,which provides as follows: ;. aJ "In compliance" means consistent with the requirements of ss. 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, °S and 163.3248, with the appropriate strategic regional policy plan, aJ and with the principles for guiding development in designated areas C of critical state concern and with part III of chapter 369, where applicable. U r r 8 Packet Pg.3727 S.1.k FINAL ORDER NO.DEO-20-032 Exception 1 is DENIED. 0 r a (B)—Exception 2: Paragraphs 89,90,and 96 0 M In Exception 2, Petitioners take exception to the findings of fact in paragraph 89, 90, and 2 0. a 96 of the Recommended Order on Remand as being both unsupported by competent substantial o t� evidence and as alleged incorrect legal interpretations. .E The Department is not permitted to reject or modify a finding that is substantially one of o r M fact simply by treating the finding as a legal conclusion.See Abrams,73 So.3d at 294. Paragraphs U g 89, 90, and 96, are properly classified as findings of fact and the exceptions are denied insofar as 21 M they challenge the findings of fact of the AU as a legal conclusion. Moreover,the determination .y that evacuation of Phase I with the additional 1,300 units can be completed within the first 24 hours of a 48-hour evacuation scenario is nevertheless supported by competent and substantial 0 evidence. Evidence is competent if it is admissible under the pertinent legal rules of evidence. Scholastic Book Fairs, 671 So.2d at 290 n.3. Evidence is substantial if there is "some(more than y r C a mere iota or scintilla), real, material, pertinent, and relevant evidence . . . having definite C probative value (that is, 'tending to prove') as to each essential element" of the claim. Id. The E r respondents' witness,Mr. Garrett,testified that"outside of what statutorily is the 24 hours we've U as been discussing,there's still roughly six-and-a-half hours of capacity,if you will,within that first o a 24-hour evacuation period."(Trans.pg. 105 Dec. 12,2019) The petitioners'witness,Mr.Ogburn, testified that he did not have a clear answer as to how requiring the affordable workforce housing M C residents to evacuate prior to the 24-hour time-period would impact the evacuation of the Keys. LL LU (Trans. pg. 79 Dec. 10, 2019) It is not the place of the Department to "weigh the evidence LU presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired a) ultimate conclusion." Heifetz, 475 So. 2d at 1281. Therefore, so long as the AU's findings are r r Q 9 Packet Pg.3728 S.1.k FINAL ORDER NO.DEO-20-032 supported by competent and substantial evidence, the agency may not reject them to make 0 alternative findings supported by evidence. Lantz v. Smith, 16 So. 3d 518, 521 (Fla. 1st DCA o M 2013). Ultimately, the ALJ's findings of fact in paragraphs 89, 90, and 96 were supported by competent and substantial evidence. CL 0 to Exception 2 is DENIED. y r .E (C)—Exception 3: Paragraphs 88 and 197 0 r In Exception 3, Petitioners take exception to the ALJ's finding that Petitioners' evidence M g concerning the Hurricane Evacuation Model were irrelevant to the plan amendments. Exception 21 3 requests the Department to forward this matter to the Administration Commission or remand .y this matter back to the ALJ with instructions to review the evidence and render findings as to 0 U whether the early evacuation deed restriction requirement is based upon professionally accepted 0 data and analysis. 0 3 It is not the place of the Department to "weigh the evidence presented, judge credibility of y r witnesses, or 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 M are supported by competent and substantial evidence. Lantz, 16 So. 3d at 521. Exception 3 is as denied to the extent that it requests the Department to modify or reject findings by reweighing the 0 CL evidence presented to the ALJ. The ALJ weighed the evidence,identifying in the Recommended Order on Remand weight given to witnesses from both Petitioners and Respondents, and 0 concluded that "Based upon the foregoing Findings of Fact, Petitioners did not prove the Plan U. LU Amendments are not supported by adequate data and analysis, or fail to react to professionally- acceptable data in an appropriate way."The Petitioners argue the ALJ misconstrued their positionLU r concerning the 2012 hurricane evacuation model,when,upon review,the ALJ is merely restating U r r 10 Packet Pg.3729 S.1.k 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 CL otherwise finds that the ALJ's findings of fact on the issue related to the best available data supporting the 24-hour evacuation clearance time cap as being supported by competent substantial CL 0 to evidence. , y r Exception 3 is DENIED. C 0 (D)—Exception 4: Paragraph 88,footnote 19 U M In Exception 4,Petitioners takes exception to the findings of fact in paragraph 88, footnote 21 19, of the Recommended Order on Remand as being unclear on, as Petitioners' allege, a as dispositive fact, inconsistent with other findings of fact, and unsupported by competent substantial evidence. 0 Specifically,Petitioners present factors that the Department should consider in determining whether the finding was inconsistent or erroneous. However,it is not the place of the Department y r to "weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the a) E evidence to fit its desired ultimate conclusion."Heifetz,475 So. 2d at 1281. The Department may M not reject and make alternative findings if the ALJ's findings are supported by competent and U M substantial evidence.Lantz, 16 So. 3d at 521. Exception 4 is denied to the extent that it requests 0 the Department to modify or reject findings by reweighing the evidence presented to the ALJ. CL The Department otherwise finds that the ALJ's finding of fact on the issues related to the best 0 available data supporting the consistency with the 24-hour evacuation clearance time cap as being U. supported by competent substantial evidence. The competent substantial evidence supports a a' conclusion that the 2012 TIME Model relied upon underlying assumptions and inputs,including UJ r C the bifurcation of certain individuals (mobile-home residents,military, tourists)into an initial 24 U r r 11 Packet Pg.3730 S.1.k 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- 0 CL hour evacuation clearance time cap. iL Exception 4 is DENIED. CL 0 (E)—Exception 5: Paragraph 191 to y r In Exception 5, the Petitioners take exception to the ALJ's legal conclusion that the 2012 C 0 Hurricane Evacuation Memorandum of Agreement was not adopted by reference into the local U M governments' comprehensive plans and, therefore, not subject to part of the "in compliance" 21 M challenge brought by the Petitioners pursuant to Section 163.3184, F.S. as .y In particular the Petitioners take exception to the ALJ's conclusions of law in paragraph 191, wherein the AU essentially concluded the Memorandum of Agreement is not adopted by reference U 0 in the local governments' comprehensive plans, is subject to amendment outside of the plan amendment process subject to Section 163.3184,and is,therefore,not part of this"in compliance" y r determination. The Petitioners take exception primarily to the legal conclusion that the Memorandum of Agreement is not adopted by reference in the local governments' comprehensive M plans. The Petitioners'have failed to provide a persuasive conclusion of law that the Memorandum cs as of Agreement is properly incorporated as set forth in Section 163.3177(1)(b),Florida Statutes. The 0 Department has considered the matter and finds that the ALJ's conclusions of law in the paragraph C cited in Exception 5 are reasonable, and the Department does not have any substitute conclusions 0 of law that are as or more reasonable than those of the AU in the paragraphs cited in Exception 5. LL LU Exception 5 is DENIED. (F)—Exception 6: Paragraph 68 LU r C In Exception 6,the petitioners take exception to the ALJ's Recommended Order on Remand U r r 12 Packet Pg.3731 S.1.k 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 CL 0 0 as to whether the early evacuation deed restrictions will be effective. Essentially, the petitioners take exception to the ALJ's Finding of Fact in paragraph 68 and the failure to issue additional CL 0 U findings of fact. y r Petitioners cite Moehle and Austin for the proposition that the"early evacuation deed"is a 0 conclusory statement unsupported by competent and substantial evidence. Yet the conclusory U M statements in each case are distinguishable from the case at bar. In Moehle, the designation of 21 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 o water quality and habitat values. See Moehle v. City of Cocoa Beach, No. 96-5832 at T¶ 18-20 U 0 (Fla. Div. Admin. Hrgs. Oct. 20, 1997) ("Under the facts of this case, designating 0.18 acres of submerged bottom--even though privately awned--as Medium Density Residential makes no y r sense."). In Austin, inconsistencies resulted from a direct conflict between protecting wetlands while simultaneously eliminating nearly all wetlands/open space and failing to depict wetlands as M a natural resource on the Future Land Use Map.Austin v. City of Cocoa,ER FALR 89:0128 at¶¶ cs as 190,289(Admin. Comm. 1989). In contrast to the instant case,Moehle and Austin involve clearly 6 irrational decisions and direct and egregious conflicts between stated objectives and planned C 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 U. by adequate data and analysis, or fail to react to professionally-acceptable data in an appropriate a' way." Petitioners did not prove beyond fair debate that the deed restriction and findings of the LU r Housing Initiative are not based on appropriate data and analysis or are not supported by U r r 13 Packet Pg.3732 S.1.k 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 CL 68 were based on competent substantial evidence in the record. (Trans. at 122 Dec. 12, 2012) There is nothing clearly erroneous about the finding of facts simply because the Petitioner wishes CL 0 to include more information.The ALJs findings of fact were not insufficient for the determination y r and Florida law and departmental policy was not incorrectly interpreted and applied. Charlotte 0 County v. IMC Phosphates Co., 18 So. 3d 1089, 1093 (Fla. 2d DCA 2009). The Petitioners did U M not prove beyond fair debate that relevant data and analysis were not employed in considering the 21 early evacuation deed restriction. The petitioners ask the Department to remand this back to the a as AU for additional findings, however, the issue of evacuation times was focal in the original 0 hearing and the AU made findings of fact and conclusions of lain as to whether the plan 2 0 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 y essential requirements of law. E Exception 6 is DENIED. E (G) —Exception 7: Paragraph 200 U In Exception 7, Petitioner takes exceptions to the conclusion of law in paragraph 200 of the 0 Recommended Order on Remand as being both unsupported by competent substantial evidence CL and incorrect legal interpretations on the issue. The Petitioners claims that findings of fact 176 20 and 181 are not supported by competent substantial evidence, claiming that the amendments by LL 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 LU r one of fact simply by treating the finding as a legal conclusion. See Abrams, 73 So. 3d at 294. M Thus,the exceptions are denied insofar as they challenge the findings of fact of the ALJ as a legal 14 Packet Pg.3733 S.1.k 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 2 0 conclusion." Heifetz, 475 So. 2d at 1281. The Department may not reject and make alternative findings if the ALJ's findings are supported by competent and substantial evidence.Lantz, 16 So. CL 0 3d at 521. In this case, while there is no specific definition of workforce affordable housing, the y r comprehensive plan points to the land development regulation,"which exist and have a structure 0 that fully understands what an affordable housing project is and how to implement it, so this just U become a part of it and affordable housing is absolutely defined within in a broader sense within 0) 21 the city's . . . Land Development Regulations." (Trans. pg. 99 Dec. 12, 2019). Additionally, the as 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 U 0 7 is denied to the extent that it requests the Department to modify or reject findings by reweighing the evidence presented to the ALJ.The Department otherwise finds that the ALJ's finding of fact y on the issue relating to the requirement of workforce affordable housing as being supported by competent substantial evidence. As to the ALJ's conclusion of law in paragraph 200, the E M Department cannot support, and the Petitioners have failed to provide, a conclusion of law as r U reasonable as or more reasonable than that which the ALJ provided therein. 0 Exception 7 is DENIED. . (H) —Exception 8: Paragraphs 68, 181, and 200 20 0 In Exception 8, the petitioners take exception to Finding of Fact 68 and Conclusion of Law LL 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 r as suggested by the petitioners. Additionally,paragraph 68 is supported by competent substantial E E M U r r 15 Packet Pg.3734 S.1.k FINAL ORDER NO.DEO-20-032 evidence and,therefore is upheld. (Trans. pgs. 87-89 Dec. 12, 2019) Petitioners argue against the 0 legal conclusion that the Plan Amendments support affordable housing, one of the Principles for CL 0 Guiding Development. Petitioner's legal conclusion is not as reasonable as or more reasonable than the conclusion set forth by the AU in Paragraph 181 and 200. The Department also cannotCL 0 to support a legal conclusion as reasonable as or more reasonable than the ALJ's. y r Exception 8 is DENIED. 0 r (I) —Exception 9: Paragraph 69 U M g In Exception 9, the petitioners take exception to the finding of fact in paragraph 69 of the 21 Recommended Order on Remand as not being supported by competent substantial evidence. .y Petitioners argue that finding of fact 69 is unsupported hearsay. The Finding of Fact is o supported by competent substantial evidence. (Trans. pgs. 137-38 Dec. 12, 2019) The o 0 Department is not authorized to "weigh the evidence presented,judge credibility of witnesses,or 3 otherwise interpret the evidence to fit its desired ultimate conclusion."Heifetz,475 So.2d at 1281. y r The Department may not reject and make alternative findings if the ALJ's findings are supported by competent and substantial evidence.Lantz, 16 So. 3d at 521. Competent substantial evidencc M in the record supports the ALJ's finding of fact 69. (Trans. pg. 105 Dec. 12, 2019) Exception 9 U as is denied to the extent that it requests the Department to modify or reject findings by reweighing 0 M CL the evidence presented to the ALJ.The Department otherwise finds that the ALJ's finding of fact on the issue relating to the Housing Initiatives compliance with the 24-hour window as being 0 supported by competent substantial evidence. U. LU Exception 9 is DENIED. (J) —Exception 10: Evidentiary Considerations uJ r In Exception 10,the petitioners take exception to the ALJ's treatment of offered depositions M U r r Q 16 Packet Pg.3735 S.1.k FINAL ORDER NO.DEO-20-032 as uncorroborated hearsay as a departure from essential requirements of law and request the 0 Department remand the cases back to the ALJ with instructions to consider and determine Don CL 0 Maynard and Kathleen McKee's expert qualifications and to consider their testimony in order to make findings of fact relative to water quality issues raised in this proceeding. CL 0 U The ALJ ruled that although the evidence was admissible, it constituted hearsay. The ALJ y r determined no non-hearsay evidence was offered to corroborate the depositions of Mr. Maynard 0 and Ms.McKee.To the extent the Petitioners request the Department substitute its legal conclusion U M concerning the evidentiary issue in place of the ALJ, the Department does not have substantive 21 jurisdiction to do so. Furthermore,the Department has not determined that the proceedings upon .y which the ALJ's findings and conclusions cited in Exception 10 departed from the essential requirements of law. 0 Exception 10 is DENIED. `o 3 (I)—Exception 11: Evidentiary Considerations y r In Exception 11, the petitioners continue their exception to the ALJ's evidentiary determination concerning the weight to be given to the offered deposition testimony of Mr. M Maynard and Ms. McKee. The petitioners specifically take exception to the ALJ's determination U as that the deposition testimony was not corroborated. 0 The ALJ ruled that although the evidence was admissible, it constituted hearsay. The ALJCL determined no non-hearsay evidence was offered to corroborate the depositions of Mr. Maynard 0 and Ms.McKee.To the extent the Petitioners request the Department substitute its legal conclusion U. UJ concerning the evidentiary issue in place of the ALJ, the Department does not have substantive jurisdiction to do so. The Department cannot determine that the proceedings upon which the ALJ's uJ r findings and conclusions cited in Exception 11 departed from the essential requirements of law. U r r 17 Packet Pg.3736 S.1.k FINAL ORDER NO.DEO-20-032 Exception 11 is DENIED. S 0 (L)—Exception 12: Paragraphs 107, 111, 114 CL 0 In Exception 12, the petitioners take exception to Findings of Fact 107, 111, and 114 iL because they allege the ALJ failed to address water quality standards set forth in prior agency CL 0 to action and because they allege the ALJ erroneously refused to consider Petitioner's water quality y r C expert witness depositions. C 0 The ALJ's consideration of the Petitioner's water quality expert witness depositions has U M g previously been discussed in Exception 10 and 11 above, and is likewise, upheld in response to 21 Exception 12. The findings of fact contested in Exception 12 are supported by competent .y substantial evidence. (See Paragraphs M— O herein) To the extent Exception 12 argues these paragraphs include erroneous legal conclusions the Department has reviewed the Recommended 0 Order on Remand and cannot substitute more reasonable legal conclusions than those contained in the Recommended Order on Remand as it relates to water quality requirements under the y r requirements for a comprehensive plan amendment to be "in compliance" as set forth in section 163.3184,Florida Statutes. M Exception 12 is DENIED. as (M)—Exception 13: Paragraph 115 0 M In Exception 13, Petitioner takes exception to the finding of fact in paragraph 115 of theCL Recommended Order on Remand as not being supported by competent substantial evidence. 0 0 Specifically, Petitioner claims that the ALJs refusal to consider the SHORE station data is U. Uj material error, claiming that SHORE data is "undisputedly" a subset of nearshore water. Pet. Except. Rec. Order at¶ 121 Uj r C The Department has considered the matter and finds that the findings of fact in paragraph M U r r Q 18 Packet Pg.3737 S.1.k FINAL ORDER NO. DEO-20-032 115 were based on competent substantial evidence in the record. (Pet. Exh. 8) (Trans. pgs. 74-80 0 Dec. 11, 2019) The Department is not authorized to "weigh the evidence presented, judge o credibility of witnesses,or otherwise interpret the evidence to fit its desired ultimate conclusion." C Heifetz, 475 So. 2d at 1281. The Department may not reject and make alternative findings if theCL 0 U ALFs findings are supported by competent and substantial evidence. Lantz, 16 So. 3d at 521. y r Exception 13 is denied to the extent that it requests the Department to modify or reject findings 0 by reweighing the evidence presented to the ALJ. Further, the proceedings upon which the M findings were made complied with essential requirements of law. 21 Exception 13 is DENIED as .y (N)—Exception 14: Paragraph 107 In Exception 14, Petitioner takes exception to the finding of fact in paragraph 107 of the U 0 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 y 107 were based on competent substantial evidence in the record. (Pet. Exh. 2) There is nothing 0 clearly erroneous about the finding of fact simply because the Petitioner wishes to include more 0) E information. There is competent substantial evidence in the record to support the ALFs finding of U M fact in paragraph 107. Further,the proceedings upon which the findings were made complied with 0 essential requirements of law. CL Exception 14 is DENIED 20 (0)—Exception 15: Paragraph 111 U. In Exception 15, Petitioner takes exception to the finding of fact in paragraph I I I of the a' Recommended Order on Remand as not being supported by competent substantial evidence. LU r The Department has considered the matter and finds that the findings of fact in paragraph M U 107 were based on competent substantial evidence in the record. (Pet. Exh. 9) The Petitioners 19 Packet Pg.3738 S.1.k FINAL ORDER NO.DEO-20-032 contend that two years of improvement do not constitute a trend.There is nothing clearly erroneous C 0 about the finding of fact simply because the Petitioner disagree on what constitutes an o M improvement. There is competent substantial evidence in the record to support the ALJ's finding C CL of fact in paragraph 111. The Department denies Exception 15 to the extent Petitioner request that 0 U Department reweigh evidence or judge credibility of witnesses. See Heifetz 475 So. 2d at 1281. y r C Further,the proceedings upon which the findings were made complied with essential requirements 0 r of law. U M g Exception No. 15 is DENIED 21 (P)—Exception No. 16: Paragraph 114 .y In Exception 16, Petitioner takes exception to the finding of fact in paragraph 114 of the Recommended Order on Remand as not being supported by competent substantial evidence. o 0 The Department has considered the matter and finds that the findings of fact in paragraph 114 were based on competent substantial evidence in the record. (Pet. Exh. 8) The Petitioners y r contend that the ALJ's use of"many" to refer to half of the median nutrient levels meeting EPA targets is erroneous. There is nothing clearly erroneous about the finding of fact based simple M because Petitioners disagree with the ALJ's choice of wording. There is competent substantial U M evidence in the record to support the ALJ's finding of fact in paragraph 114. Further, the 0 M proceedings upon which the findings were made complied with essential requirements of law. CL Exception 16 is DENIED 0 (Q)—Exception 17: Paragraphs 164 through 171 and 178 through 181 U. In Exception 17, the petitioners take exception to the ALJ's findings of fact set forth in a' paragraphs 164 through 171 and 178 through 181 of the Recommended Order on Remand. These LU r C paragraphs find the Plan Amendments establish meaningful and predictable standards for the use M U and development of land. The Petitioners' take exception to the ALJ's findings that the Plan 20 Packet Pg.3739 S.1.k 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, CL incorporate sustainability and resilient design principles, providing for preservation of the units for workforce, and ensuring compliance with early evacuation requirements. CL 0 Competent substantial evidence,in the form of testimony from the Respondents'witnesses, y r established that the Plan Amendments establish the necessary direction to provide meaningful and 0 predictable standards for the development of the land. (Trans.pgs. 96-97, 99, 198 Dec. 12, 2019); U M (Trans. pg. 70 Dec. 13, 2019) The ALJ's conclusion that not all terms in a comprehensive plan 21 need to be defined is reasonable and the Department cannot substitute a more reasonable a conclusion. Where the terms are undefined the plain language prevails. Additionally, the local governments' regulatory schemes, including comprehensive plan and land development U 0 regulation, have been held in compliance in implementing affordable housing regulations. The Petitioners' attempt to read portions of the plan amendments in isolation so as to render them y r lacking in clarity is not as reasonable a conclusion as that set forth by the ALJ. E Exception 17 is DENIED E M (R)—Exception 18: Paragraph 61 and 62 r U M In Exception 18,Petitioner takes exception to the finding of fact in paragraph 61 and 62 of 0 the Recommended Order on Remand as not being supported by competent substantial evidence. C The Petitioner excepts to the finding that 400 units of affordable housing were destroyed 0 during Hurricane Irma. Yet, in pertinent part,Mr. Garrett testified that the: . 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, LU including trailers, permanent RVs, as we describe them, and ground-level homes, so we knew that we would have issues with maintaining our Workforce. U r r 21 Packet Pg.3740 S.1.k FINAL ORDER NO.DEO-20-032 (Trans. pgs. 77-78 Dec. 12, 2019). The transcript record cited by the Petitioner references that 0 there was no specific analysis for regarding damage to all housing and does not demonstrate that o the ALJs finding of fact was clearly erroneous. (Trans.pgs. 195-96 Dec. 12, 2019). C iL CL The Department is "not authorized to weigh the evidence presented,judge credibility of 0 to witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion."Heifetz, 475 y r C So.2d at 1281.Exception 18 is denied to the extent Petitioner requests that the Department reweigh 0 r evidence to modify or reject the ALJ's findings in paragraphs 61 and 62. The findings of fact M g challenged in Exception 18 were otherwise based upon competent substantial evidence. (Trans. 21 107 Dec. 9 2019s 77-78 Dec. 12 2019 Trans. s 195-96 Dec. 12 2019 pg. ); (Trans.( pg • )� pg • � )• a .y Exception 18 is DENIED (S)—Exception 19: Evidentiary Issues o 0 In Exception 19, the petitioners take exception to the ALJ's treatment of petitioners' witness testimony. In particular, the petitioners take exception to the ALJ's granting of an y r objection to exhibits relied upon by Ms. Jetton as hearsay. The ALJ admitted the exhibits into the record but given the scope of Ms. Jetton's expertise,gave the exhibits the appropriate weight. The M Department is not authorized to "weigh the evidence presented,judge credibility of witnesses, or as otherwise interpret the evidence to fit its desired ultimate conclusion."Heifetz,475 So.2d at 1281. 6 CL The ALJ's determination concerning the evidence presented at the hearing, such as weighing testimony and determining the weight and amount of supportive evidence is solely within the M province of the ALJ as the finder of fact. The ALJ's determinations concerning Ms. Jetton's LL LU expertise are supported by competent substantial evidence from her testimony. The Department is unable to reweigh such competent substantial evidence or make its own judgment as to the uJ r C credibility of witnesses.See Heifetz, 475 So.2d at 1281-1283. Exception 19 is denied to the extent U r r 22 Packet Pg.3741 S.1.k FINAL ORDER NO.DEO-20-032 that it requests the Department to modify or reject findings by reweighing the evidence presented 0 to the ALJ.Additionally,the Department denies Exception 19 because the proceedings upon which 0 the findings were made complied with essential requirements of law. Exception 19 is DENIED CL 0 (T)—Exception 20: Appellate Standing to y r In Exception 20, the petitioners take exception to the lack of findings of fact related to 0 whether the petitioners were "adversely affected" by the plan amendments for purposes of M conveying appellate standing. g 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 o cite Martin County for the proposition that a showing of standing must be made in the o 0 administrative hearing, and that a failure to do so may support a remand. However, while Martin County does state that a Petitioner has "the responsibility to request that the ALJ make some y r findings in this regard," this refers to the citation of specific facts to rebut the Sierra Club requirement for interest groups to provide facts concerning an individually affected member to M confer standing. Martin County Conservation All. v. Martin County, 73 So. 3d 856, 862 (Fla. 1st r as DCA 2011)In contrast to the case at bar,Martin County involved appellants who filed a"meritless 0 CL 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 0 M conclusion that Appellants had standing to appeal."Id. at 864, 65. U. In the instant case,the ALJ has made specific findings of fact regarding the unique concerns and injuries of all three Petitioners that upon review may confer appellate standing. Rec. Order onUJ r Remand at IT 2-9. There is nothing clearly erroneous about the findings of fact simply because U r r 23 Packet Pg.3742 S.1.k FINAL ORDER NO.DEO-20-032 the Petitioner wishes to include more definite terms. Further, the proceedings upon which the 0 findings were made complied with essential requirements of law. o M Exception No. 20 is DENIED CL Remainder of the Recommended Order on Remand 0 to The Department has reviewed the remainder of the Recommended Order on Remand and y r concludes that all findings of fact therein were based on competent substantial evidence in the 0 r record. The Department finds that the proceedings on which the findings of fact were based M g complied with the essential requirements of law. 21 M The Department has reviewed the ALYs conclusions of law and finds that all conclusions .y of law within the Department's substantive jurisdiction are reasonable. The Department does not have any substitute conclusions of law that would be as or more reasonable than the AU's conclusions of law. ORDER y r Based on the foregoing, the Department determines that the Plan Amendments are "in compliance," as defined in section 163.3184(1)(b), Florida Statutes. The Department adopts the M Recommended Order on Remand, as the Department's Final Order. U as ®a 0 M CL Dated this day of December,2020. )iho Rubio,Director LU Division of Community Development eS Florida Department of Economic LU Opportunity r M U r r 24 Packet Pg.3743 S.1.k FINAL ORDER NO. DEO-20-032 NOTICE OF RIGHT TO JUDICIAL REVIEW s 0 r a THIS FINAL ORDER CONSTITUTES FINAL AGENCY ACTION UNDER CHAPTER 120, �0 FLORIDA STATUTES. A PARTY WHO IS ADVERSELY AFFECTED BY FINAL AGENCY ACTION IS ENTITLED TO JUDICIAL REVIEW IN ACCORDANCE WITH SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE CL 9.030(B)(1)(C)AND 9.110. 0 t� TO INITIATE JUDICIAL REVIEW OF THIS FINAL AGENCY ACTION, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 107 EAST MADISON STREET,CALDWELL BUILDING,MSC 110,TALLAHASSEE,FLORIDA 32399- o 4128, AGENCY.CLERK@DEO.MYFLORIDA.COM, WITHIN THIRTY (30) CALENDAR DAYS AFTER THE DATE OF THE FINAL AGENCY ACTION. A DOCUMENT IS FILED u WITH THE AGENCY CLERK WHEN IT IS RECEIVED BY THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY 21 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. cs 0 0 3 y r E m r u as ®a 0 a 0 r- LL Lu Lu r E u r r 25 Packet Pg.3744 S.1.k FINAL ORDER NO.DEO-20-032 CERTIFICATE OF FILING AND SERVICE 0 r a 0 I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with 0 the undersigned Agency Clerk, and that true and correct copies have been furnished to the 0. CL following persons by the methods indicted thisA � day of December,2020. U° !r o Ages , `lerk Florida Department of Economic Opportunity g 107 East Madison Street,MSC 110 21 Tallahassee, FL 32399-4128 ByU_.S.Mail N The Honorable Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee,Florida 32399-3060 Bar U.S. and Electronic Mail: Roget V. Bryan, Esquire Islamorada,Village of Islands 86800 Overseas Highway M Islamorada, Florida 330336 roget.bryan@islamorada.fl.us ®a Richard J. Grosso, Esquire CL Richard Grosso, P.A. 6511 Nova Drive, Mail Box 300 Davie,Florida 33317 grosso.richard@yahoo.com U. Sarah M. Hayter, Esquire 0 LU Shai Ozery, Esquire Robert Hartsell, P.A. 61 Northeast I'Street, Suite C a' Pompano Beach,FL 33060 E r r Q 26 Packet Pg.3745 S.1.k FINAL ORDER NO.DEO-20-032 0 Christopher B. Deem,Esquire CL Nicola J. Pappas,Esquire 0 Barton William Smith, Esquire Law Firm of Smith Hawks, PL 138 Simonton Street CL Key West, Florida 33040 0 nikki@smithhawks com r Shawn D. Smith, Esquire o George B.Wallace,Esquire City of Key West, City Attorney's Office g 1300 White Street 21 Post Office Box 1409 Key West,Florida 33040 G t' 24l"s "`L i�a�., tt_t °'...rv9-,` •y gwallace@cityofkeywest-fl.gov 0 0 3 y r E M r U a 0 M a 0 LL LU LU r E M U r r 27 Packet Pg.3746 S.1.k STATE OF FLORIDA o DIVISION OF ADMINISTRATIVE HEARINGS o M r_ CECELIA MATTINO, - . Petitioner, �° y vs. Case No. 18-625OGM CITY OF MARATHON,FLORIDA, M U Respondent. g 21 NAJA GIRARD, M as Petitioner, y 0 VS. Case No. 19-1526GM 0 CITY OF MARATHON,FLORIDA, 0 3 Respondent. CATHERINE BSOSWORTH, r E Petitioner, E VS. Case No. 19-1839GM r U CITY OF MARATHON, FLORIDA, ®a Respondent. 0 a RECOMMENDED ORDER ON REMAND M A duly-noticed final hearing was held in this matter in Marathon, Florida, L- Uj on December 9 through 13, 2019, before Suzanne Van Wyk, an Administrative Law Judge assigned by the Division of Administrative Uj Hearings. E U r r Q Exhibit"N' Packet Pg.3747 S.1.k APPEARANCES - o For Petitioners: Richard J. Grosso, Esquire o Richard Grosso, P.A. M 6511 Nova Drive, Mail Box 300 r- M Davie, Florida 33317 0. a Sarah Hayter, Esquire �° Shai Ozery, Esquire y Robert Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, FL 33060 •° M For Respondents City of Marathon; and Islamorada, Village of Islands, g Florida 21 Nicole Pappas, Esquire Barton Smith, Esquire y Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 0 For Respondent, City of Key West: George Wallace, Esquire City of Key West, City Attorney's Office 1300 White Street E Post Office Box 1409 Key West, Florida 33040 E E M r STATEMENT OF THE ISSUE Whether City of Marathon("Marathon") Comprehensive Plan Amendment 0 2018-01, adopted on October 23, 2018 (the "Marathon Plan Amendment"); CL City of Key West ("Key West") Comprehensive Plan Amendment 19-06, adopted on April 4, 2019 (the "Key West Plan Amendment"); and Islamorada, 0 Village of Islands ("Islamorada") Comprehensive Plan Amendment 19-03, U. LU adopted on March 5, 2019 (the "Islamorada Plan Amendment") (collectively, LU r E U r r 2 Exhibit"A" Packet Pg.3748 S.1.k the "Plan Amendments"), are "in compliance," as that term is defined in o .2 CL section 163.3184(1)(b), Florida Statutes (2019).1 M PRELIMINARY STATEMENT C 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 g violation of the Community Planning Act, chapter 163, part II, Florida 21 M Statutes ("the Act"). Ms. Mattino's petition was assigned to the undersigned as Case No. 18-6250. 0 cs 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 undersigned as Case No. 19-1526. E On April 9, 2019, Petitioner, Catherine Bosworth, filed a Petition with the M Division challenging the Islamorada Plan Amendment as violative of the Act U on many of the same grounds as the other Petitioners. Ms. Bosworth's Petition was assigned to Administrative Law Judge Francine Ffolkes as Case a No. 19-1839. That case was transferred to the undersigned on April 22, 2019. Petitioners filed an Amended Joint Motion to Consolidate ("the Motion") U. the three cases, to which Respondents, Marathon and Islamorada, filed 0 LU responses in opposition. Following a telephonic hearing on the Motion, the undersigned entered an Order of Consolidation on May 10, 2019. LU r 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. U r r Q 3 Exhibit"A" Packet Pg.3749 S.1.k The consolidated cases were scheduled for final hearing on October 7 0 .2 through 11, 2019; however, due to the undersigned's family medical o emergency, the final hearing was continued and rescheduled to December 9 through 13, 2019. °- a 0 t� The final hearing commenced as rescheduled in Marathon, Florida. Petitioners testified on their own behalves, and offered the testimony of: r- Rebecca Jetton, accepted as an expert in comprehensive planning and planning in the Florida Keys; Martin Senterfitt, the Monroe County Director U g of Emergency Management; and Richard F. Ogburn, accepted as an expert in comprehensive planning. Petitioners introduced the following Exhibits which a were admitted in evidence: 2, 5, 6, 8, 10, 11, 34, 39, 47, 48, 54, 55, 60, 70, 71, 0 73 through 77, 83, 86 through 91, 94, 97, 100 through 102, 105, 106, 108, 117, cs 118, 127 through 129, 131, 139 (appendix 1C), 140, 147, 151, 158, 188, 189, `0 221, 223, and 228. Petitioners proffered Exhibit 111, which was not admitted in evidence, but travels with the record of this proceeding. y r Respondents offered the testimony of: George Garrett, Marathon's planning director; Ty Harris, Islamorada's planning director; and Patrick 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 hydrogeology and karstology; William Precht, accepted as an expert in CL marine ecology; and Joaquin Vargas, accepted as an expert in transportation planning. 20 0 M Respondents introduced Exhibits 1 through 17, 20 through 66, 68 through LL LU 83, 85 through 131, 133, and 135 through 153, which were admitted in evidence. >� LU r E U r r 4 Exhibit"A' Packet Pg.3750 S.1.k The parties received the five-volume Transcript of the final hearing on o February 3, 2020,2 and on February 6, 2020, Petitioners requested an o extension of time to file proposed recommended orders by March 13, 2020, which was granted. The parties' Proposed Recommended Orders were timely c- a filed and have been carefully considered by the undersigned in the preparation of this Recommended Order. y r C C Evidentiary-Considerations Petitioners sought to introduce the deposition testimony of two additional g witnesses: Kathleen McKee and Donald Maynard. While the deposition M transcripts were admitted, they constitute hearsay for which no exception a 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 against whom the deposition is offered had the same motive to develop the testimony, has been declared unconstitutional. See Grabau v. Dept of Health, 816 So. 2d 701, 709 (Fla. 1st DCA 2002). Further, Petitioners were unable to C make the required showing of unavailability in order to introduce the former testimony of the two witnesses under the hearsay exception provided in a) section 90.804(2). Petitioners offered no non-hearsay evidence to corroborate the hearsay depositions of Ms. McKee and Mr. Maynard. ®a 0 Respondents objected to the introduction of a number of exhibits reliedCL upon by Petitioners' expert planning witness, Ms. Jetton, in formulating her 20 opinions regarding whether shallow injection wells contribute to nearshore 0 C water pollution. The articles were written by marine scientists, biologists, U. W 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 LU n _ C r a) 2 The official Transcript was not filed with the Division until March 16, 2020, although the E parties provided the undersigned with a copy prior to that date. U M r r Q 5 Exhibit"A" Packet Pg.3751 S.1.k does not have personal knowledge, if the facts and data are the type 0 reasonably relied upon by experts in the particular field to support the CL 0 opinion. See § 90.'704, Fla. tat. The expert ay even rely upon inad issible M evidence (i.e., hearsay) if the evidence is of a type "reasonably relied upon by a experts in the subject to support the opinions expressed[.]"I . In this case, o to Respondents' objections are well-taken. Ms. Jetton is an expert in y r comprehensive planning, very experienced and well-versed in the planning history of the Keys, particularly as a former e ployee of the state agency .0 r M with oversight over planning and development in the Keys, However, U g s. Jetton is riot a biologist, chemist, marine scientist, or other scientific 0) 21 expert who would typically rely upon the studies and publications in M as scientific journals for formulating an opinion on, for example, "the fate and .y transport of sewage in the subsurface environment and the potential for contamination of marine surface aters[J"3 0 0 3 The documents on which Ms. Jetton relied in formulating her expert planning opinions were admitted, but those documents remain y r uncorroborated hearsay. The undersigned has given the appropriate weight to Ms. Jetton's testimony on these issues. M r Remand The undersigned's Recommended Order was entered on April 24, 2020, ®a 6 and forwarded to the Department of Economic Opportunity ("DEO") for CL issuance of a final order. Following the consideration of the parties' Exceptions to the Recommended Order, DEO remanded these cases to the M undersigned for the "limited purposes of issuing Findings of Fact and U. Conclusions of Law" on the issue of"whether the plan amendments establish 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 E 1995). U r r Q 6 Exhibit"A" Packet Pg.3752 S.1.k meaningful and predictable standards as required by section 163.3177(1), o r Florida Statutes." o M FINDINGS OF FACT C The Parties and Standing CL °- 1. Ms. Mattino resides in Marathon with her daughter and her fiance. She �° submitted written objections to Marathon regarding the Marathon Plan .E Amendment prior to the October 23, 2018 public hearing at which Marathon 0 adopted the Plan Amendment. M 2. Ms. Mattino's daughter is severely disabled, requires specialized g equipment (including a specialized wheelchair), and requires full-time care, 21 M for which Ms. Mattino relies upon a variety of caretakers. Her daughter has to be transported in a specially-equipped vehicle to accommodate the 0 wheelchair and other equipment. cs 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. 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. E C Prolonged car rides are also stressful for Ms. Mattino, who has high blood M pressure and has had several heart attacks. U 5. Ms. Mattino evacuated for Hurricane Irma and testified that she encountered heavy traffic, which was made more stressful by the need to stop a 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 LL cause additional stress and would put her and her daughter's health at risk. 0 LU 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 LU family than it is for the general public. a) E U r r 7 Exhibit"A" Packet Pg.3753 S.1.k 7. Ms. Bosworth resides in Islamorada with her daughter, son-in-law, and their two children. She submitted written objections to the Islamorada Plan o Amendment prior to the April 4, 2019 public hearing at which Islamorada adopted the Plan Amendment. - a 8. Ms. Bosworth previously evacuated for Hurricanes Andrew and Irma, which required preparation time to gather her pets, pack pet supplies, and y r 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 the assistance of her son-in-law. Ms. Bosworth believes her circumstances are U g 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 as hurricane. 9. Ms. Bosworth claims that if traffic congestion increases or worsens as a cs result of the Plan Amendments, it would affect her and her family because `o 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 quality of life. 10. Ms. Girard is a resident of Key West. She submitted oral or written r objections to the Key West Plan Amendment prior to the March 5, 2019 public hearing at which Key West adopted the Plan Amendment. 0 11. Ms. Girard testified that, due to her and husband's marine-based C business and residential tenants, she and her husband would wait until the 20 very last minute to evacuate regardless of when an evacuation advisory was M issued by the Monroe County Emergency Management Office. LL 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 LU 4 Ms.Girard previously lived on vessels in the Key West area. U r r Q 8 Exhibit"A" Packet Pg.375�4 S.1.k 13. Marathon, Islamorada, and Key West, are all municipalities with the o .2 duty and authority to adopt a comprehensive plan, pursuant to section o 163.3167, Florida Statutes (2019). Backiround CL 14. In 1972, the Florida Legislature enacted the Environmental Land and 0 U Water Management Act, which provided the basis for state designation of .E Areas of Critical State Concern ("ACSC").5 The statute provides criteria for 0 designating an ACSC, which is generally"[a]n area containing ... M environmental or natural resources of regional or statewide importance," g such as wildlife refuges, aquatic preserves, and state environmentally 21 M endangered lands. § 380.05(2), Fla. Stat. (2019).6 a 15. In 1974, the Florida Keys (Monroe County and its municipalities) were 0 designated an ACSC due to the area's environmental sensitivity and cs 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 establishes the legislative intent to establish a land use management system that, among other things, "protects the natural environment," "conserves and promotes the community character," "promotes orderly and balanced growth E M in accordance with the capacity of available and planned public facilities and U services," and"promotes and supports a diverse and sound economic base" in the Keys. § 380.0552(2), Fla. Stat. (2019). o a 5 The Environmental Land and Water Management Act was enacted prior to the 1985 0 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 E natural resources. U. Uj 6 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 Lu 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). U r r Q 9 Exhibit"A' Packet Pg.3755 S.1.k 17. The ACSC designation transferred all local Keys planning and development review and approval rights to the state land-planning agency, CL 0 the Florida Department of Community Affairs ("DCA').7 While the Keys local governments can adopt and amend their plan and land development - a regulations, those provisions do not take effect until approved by 0 U administrative rule. See § 380.0552(9), Fla. Stat. y r 18. In 1986, Monroe County updated its comprehensive plan to be consistent with the 1985 Growth Management Act.8 Several administrative challenges followed, initiated by both DCA and private entities and U g individuals. 19. Monroe County revised its comprehensive plan in 1993 to resolve as many of the issues raised in the litigation, but those amendments were again y 0 challenged in administrative proceedings. 20. The second challenge culminated in a final order of the Administration o 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 the ... Keys is the very essence of Monroe County's economic base. The uniqueness of the environment ... and the current condition of the r environment must be addressed in any growth management decisiono."DCA v. Monroe Cty., 1995 Fla. ENV LEXIS 129 (Fla. ACC 1995). 0 21. The litigation highlighted aspects of the Florida Keys ecosystem as C having limited capacity to sustain additional impacts from development. Of 20 particular concern was the declining water quality of the nearshore M environment due to lack of central sewer facilities, the loss of habitat for LL LU 7 The 2011 Legislature transferred the DCA Division of Community Planning,via Type II K transfer,to the Department of Economic Opportunity.See ch.2011-142, § 3,Laws of Fla. LU S The Growth Management Act was significantly amended and renamed the"Community Planning Act,"by chapter 2011-142, Laws of Florida. U r r Q 10 Exhibit"A" Packet Pg.3756 S.1.k state and federally-listed species, public safety in the event of hurricanes, o CL 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 CL "has already been reached or even exceeded," and that development of the �0 Keys "is degrading the nearshore waters at or over carrying capacity." +� r .E 22. The 1995 Final Order required Monroe County to undertake certain "remedial actions" in order to bring the Plan into compliance with both the M Act and the Principles, which are adopted in section 380.0552. g 23. Among the remedial actions was the requirement that Monroe County 21 M establish a Permit Allocation System ("PAS") for new residential development. The Administration Commission explained, as follows: 0 The [PAS] shall limit the number of permits issued for new residential development ... provided that 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. E 24. Monroe County amended its plan in 1996 to implement the PAS and other remedial actions, and adopted a "carrying capacity approach" to E M planning in the ACSC. 25. The amended comprehensive plan was approved by rule of the Administration Commission—Florida Administrative Code Rule 28-20, which CL also established a comprehensive work program designed to improve the Keys' water quality and protect the habitat of threatened and endangered M species. r_ LL 26. The rule was subject to another administrative challenge, and the 0 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). LU r E U r r 11 Exhibit"A" Packet Pg.3757 S.1.k The Carrying Calacity Study o 27. The work program adopted by the rule included the requirement to C conduct a "carrying capacity analysis" for the Florida Keys. Florida M Administrative Code Rule 28-20.100 provided, "The carrying capacity . . analysis shall be designed to determine the ability of the Florida Keys o to ecosystem, and the various segments thereof, to withstand impacts of y r additional land development activities." The rule established that the analysis should be based on the findings adopted by the Administration Commission on December 12, 1995, "or more recent data that may become U g 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 as the impacts of nutrients on marine resources. y 28. The study was undertaken beginning in 1996 and was sponsored �° jointly by DCA and the Army Corps of Engineers ("the Corps") and involved o 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 following: ® Development suitability in the Florida Keys is extremely restricted, due to the following U characteristics: Existing development has displaced nearly 50 percent of all upland habitats, and remaining uplands are distributed CL in patches of 10 or fewer acres; almost every native area is potential habitat for one or more 20 endangered species; over 50 percent of all private lands are wetland parcels, and development suitability of remaining lands is LL low or marginal due to open space Lu requirements, lack of infrastructure, and other factors. LU s The document introduced in evidence is titled"Draft Final Report."According to the E testimony of Rebecca Jetton, no other final report was issued by the study sponsors. U M r r Q 12 Exhibit"N' Packet Pg.3758 ; S.1.k • Future growth is limited in the next 20 years— o less than 10 percent growth in the number ofCL dwelling units and population—due to infrastructure limitations. Permitted capacity of potable water withdrawals was exceeded in 1999 and 2000; improvement of hurricane CL evacuation clearance times is dependent on �0 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 .0 r 6,000 units in order to maintain the state- mandated level of service for roadways. g 21 • All six future scenarios would result in M disproportionate increase in government expenditures with respect to increased y population, which will require increased o 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 impacts to the marine ecosystem and species. The study underscores the benefits of wastewater treatment, "but other impacts are more related to resource management than to land development." r U 30. The study provides the following four major guidelines for future development in the Florida Keys: a 1. Prevent encroachment into native habitat. A wealth of evidence shows that terrestrial habitats 20 and species have been severely affected by development and further impacts would only exacerbate an already untenable condition. L- W 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 r r 13 Exhibit"A" Packet Pg.3759 S.1.k and management activities in the Florida Keys o National Marine Sanctuary, and restoration efforts CL throughout the Keys. M 3. If further development is to occur, focus on redevelopment and infill. Opportunities for CL additional growth with small, potentially o acceptable, additional environmental impacts may occur in areas ripe for redevelopment or already disturbed. 4. Increase efforts to manage the resources. Habitat o management efforts in the Keys could increase to effectively preserve and improve the ecological U values of remaining terrestrial ecosystems. 21 31. Rule 28-20.001 required the findings of the FKCCS to be implemented as by"adoption of all necessary [comprehensive plan] amendments to establish y a rate of growth and a set of development standards [to] ensure that any and �° 0) all new development does not exceed the capacity of the county's environment o 0 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. 24-Hour Hurricane Evacuation 32. In 2006, following the publication of the FKCCS, the Legislature r amended section 380.0552 to require the local governments to adopt provisions in their comprehensive plans to "protect the public safety and 0 welfare in the event of a natural disaster by maintaining a hurricane C evacuation clearance time for permanent residents of no more than 24 hours." § 380.0552(4)(e)2., Fla. Stat. (2007). The requirement remains in effect and is 0 enforced by the state through review of local government plan amendments. LL LU See § 380.0552(9)(a)2., Fla. Stat. ROGO and BPAS LU 33. Principle among the Monroe County amendments to implement the remedial actions ordered by the Administration Commission was the PAS, r r 14 Exhibit"A" Packet Pg.3760 S.1.k implemented in the County by a Rate of Growth Ordinance ("ROGO"). The o CL 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 CL development that may be issued annually, with a split between affordable �0 and market rate units. The current cap is 197 units per year, with a .E minimum of 71 units allocated for affordable housing and a maximum of 126 0 market rate units. Any unused affordable housing units "roll over" for M affordable housing units the following year. Other unused allocations may be g rolled over and used for affordable housing units or"administrative relief."lo 21 M 34. Islamorada and Marathon were not yet incorporated when the comprehensive plan litigation began and subsequent remedial measures were 0 issued. Since their incorporation, each of the cities has been brought under cs 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 similar work plans to implement the remedial measures required by the commission. The applicable administrative rules are chapter 28-19 for Islamorada and chapter 28-18 for Marathon. M 35. Marathon and Islamorada have permit allocation requirements U similar to Monroe County, known as the Building Permit Allocation System ("BPAS"). Their respective administrative rules provide the annual maximum CL number of permits and the split between affordable and market rate units, as well as the rules governing rollover of unused allocations.11 M LL LU 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. Lu r 11 Marathon's annual cap is 30 units and Islamorada's is 28(22 market rate and 6 affordable housing). U r r Q 15 Exhibit"A" Packet Pg.3761 S.1.k 36. BP AS is a competitive system. Permit applications are awarded points o based on their alignment with specific development criteria, such as presence o or absence of wetlands or protected habitat, and availability of public services. Those applications with the highest points are awarded available - a permits for the BPAS year. cork Prggram y r 7. Each of the municipalities' governing rules includes a work program, E r_ broken down into the following categories: (1) carrying capacity M implementation.; (2) wastewater implementation,- and (3) wastewater project U g implementation, Marathon's work program includes a fourth category21 — M stor .°water treatment facilities. � as . The specific activities of each work program differ somewhat. For example, with respect to environmentally-sensitive lands, Isla orada 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 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 r environment due to a lack of central sewer facilities. The Keys' wastewater treatment "system" consisted of a hodgepodge of some 23,000 septic: tanks, 0 2,800 cesspits, and at least 249 small package treatment plants. CL 40. The work program represents a monumental, long-term, and 20 expensivel2 infrastructure project to build a central sewer system in the M Keys, followed by a program to require existing developments to connect to LL LU 12 In both 2012 and 2016, the Florida:Legislature authorized expenditure of Everglades restoration bond funds for Florida Treys wastewater and storrawater management projects; >� UJ 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 � said projects in the 2017/2018 year. U r r Q 1 Exhibit"A" Packet Pg.3762 S.1.k the system, and land development regulations to direct new growth to areas o .2 served by central wastewater treatment facilities. Each local government o work program includes specific target dates to obtain funding for, and construction of, each component of the sewer system, as well as specific target CL dates for initiating and completing connections of existing development to the 0 to newly-constructed system. .E 41. Monroe County's work program also includes directives for funding 0 stormwater improvement projects and deadlines for completing said projects. M ACSC Annual Repor g ts 42. The local governments and the Department of Economic Opportunity 21 M ("DEO") are required to report to the Administration Commission annually documenting"the degree to which work program objectives for the work 0 program year[13] have been achieved." 43. Achievement of work program objectives is directly tied to the BPAS 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 areas served by central sewer. Each application for building permit is M awarded an additional four points15 if the parcel is served by central sewer U meeting statewide treatment standards. 44. In the 2017 ACSC annual report, the most recent report for which the o CL parties requested official recognition, Islamorada reported it had connected 85 percent of potential customers (with another five percent in the -a M 13 The work program year runs from July of one year to June of the following year. LL 0 LU 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 LU unclear whether Islamorada was already under penalty when the new rule was adopted or whether this is an oversight in the rule. 15 In Islamorada,the award is two additional points. U r r Q 17 Exhibit"A' Packet Pg.3763 S.1.k application process), Marathon had connected 97 percent, and Monroe County had an overall connection rate of 86 percent (with higher percentages CL 0 for specific individual treatment facilities). Cite of Key,- WestCL - - _. 45. Key West challenged its inclusion in the original ACSC designation, o to and, in 1984, was designated as a separate area of critical state concern ("the y r Key West ACSC"), effectuated by the adoption of Florida Administrative Code r_ Chapter 28-36. 46. The Key West ACSC is subject to the same land planning and U g development regulation oversight as the Florida Keys ACSC, and the Key West comprehensive plan and land development regulations are approved by as the state through Florida Administrative Code Chapters 28-37 and 9B-30. y 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 o 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 local governments, to stipulate to the input variables and assumptions for r utilizing the Florida Keys Hurricane Model, or other models acceptable to DEO, to accurately depict hurricane evacuation clearance times for the 0 population in the Keys. The work program required, by July 1, 2012, the local C 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, M consistent with the requirement to maintain a 24-hour evacuation clearance LL LU 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 r r 18 Exhibit"A" Packet Pg.3764 S.1.k community organizations, as well as from state and federal agencies. The o Work Group held a series of public workshops to consider hurricane model o inputs—census data, behavioral studies, hurricane forecasting, military evacuation procedures, traffic flow rates, and number and location of vacant c` a platted lots. o U 50. The Work Group selected the Division of Emergency Management's Transportation Interface for Modeling Evacuations ("TIME") as the model to r_ 0 accurately depict evacuation clearance times for the population of the Keys M ACSC and the Key West ACSC ("the Florida Keys ACSCs"). The Work Group g agreed on 10 modeling assumptions, including the number of tourist units, 21 and of those, the number occupied; the number of mobile home units and evacuation participation rates; and the number of site-built units, the 0 occupancy rate, and participation rate of residents in those units, among cs other important variables. The inputs and assumptions were tested by modeling over 100 evacuation scenarios. `o 3 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 Key West). Scenario M5 produced an evacuation clearance time of 24 hours with a future allocation of 3,550 new residential building permits. as 52. Notably, scenario M5 assumed that military, mobile home residents, o CL 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 mobile homes would convert to site-built homes. M 53. In the two-phase evacuation plan, tourists are ordered to evacuate L- LU 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 U r r 19 Exhibit"A" Packet Pg.3765 S.1.k Phase I using tourist occupancy rates for July, and 17 hours and 30 minutes 0 using tourist occupancy rates for the Labor Day weekend. o 54. Under Scenario M5, residents of site-built units are ordered to M evacuate 30 hours in advance, giving those residents six hours of lead time to a secure property and make other preparations. Under scenario M5, all site- o to built residences were evacuated within 24 hours of predicted tropical storm y r 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 .° M 2023 to maintain the 24-hour hurricane evacuation mandate in section U g 380.0552. ;, 55. The Work Program directed DEO to "apply the derived clearance time as to assess and determine the remaining allocations for the [ACSC]" and y recommend revisions to the allocation rates and distribution of allocations to �° the six local governments, as well as any recommended changes to the local 0 government comprehensive plans. DEO completed that task, and determined o 3 that a maximum of 3,550 additional units could be distributed over the next ten years, beginning in July 2013. y r 56. On November 5, 2012, Monroe County, Marathon, Islamorada, Key Colony Beach, Key West, the City of Layton, the Division of Emergency E Management, and DEO, entered into an MOU agreeing on the use of the r TIME model, as well as the data, input variables, and assumptions to be utilized in model runs. The following"whereas" clause succinctly provides the 0 results of the M5 scenario: CL 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 '- residential building permits for new construction UJ 0 for all Local Governments per year for 10 years (annually, County 197, Marathon 30, Islamorada >� UJ 28, Key West 90, Key Colony Beach 6, and Layton r 3); 1,248 mobile home units projected to convert to site-built units; the exclusion of 870 dwelling units U r r 20 Exhibit"A" Packet Pg.3766 S.1.k on the Naval Air Station; as well as two (2) o functional evacuation lanes from MM 108-126. CL Further the work group recommended Scenario M5 -a° 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 CL Local Governments based upon the Local 0 Governments' ratio of vacant land. y r 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 U allocation was revised to 91. 21 58. The MOU also memorializes the following staged evacuation procedure: .y • Approximately 48 hours in advance of tropical storm winds, mandatory evacuation of non-residents, visitors, RVs, travel trailers, live-aboard vessels (transient and non-transient), and military personnel. 0 • Approximately 36 hours in advance, mandatory evacuation of mobile- home residents, special needs residents, and hospital and nursing y home patients. • Approximately 30 hours in advance, mandatory phased evacuation of permanent residents by evacuation zone.[16] E 59. The phased evacuation procedure is also adopted in each of the local a government comprehensive plans, except Key West, which adopted the procedure by resolution. a Affordable Housing 60. The need for additional affordable housing in the Keys is well documented, and the parties stipulated, generally, to the need. - LU LU r is There are five hurricane evacuation zones in the Keys designated by mile marker numbers E along US 1. U M r r Q 21 Exhibit"A" Packet Pg.3767 S.1.k 61. Numerous factors contribute to the need for affordable housing, 0 including, but not limited to, the high cost of living, higher construction costs, o the high cost of land, as well as the limited supply and high demand for real M estate and housing throughout the Florida Keys. The need for affordable a housing was exacerbated by Hurricane Irma, which made landfall in the o to Florida Keys in September of 2017 and destroyed approximately 400 mobile y r homes, "permanent RV's," and ground-level single-family homes that served as affordable housing, many for members of the Keys workforce. M 62. Most of the site-built homes destroyed were not built to current U g building code standards, but were "grandfathered" from code compliance. Those structures must be rebuilt to code, which will likely take them out of as financial reach of members of the Keys workforce. y 63. Provision of affordable housing is an important aspect of the �° regulatory framework for planning in the Keys. o 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 y r 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. r § 380.0552(2)(d), Fla. Stat. The Keys,WQrkforce_Housin, Initiative 0 65. Shortly after Hurricane Irma, Marathon began discussions with DEO CL about the possibility of obtaining additional building permit allocations for E workforce-affordable housing. M 66. In November 2017, Marathon passed Resolution 2017-99 requesting U. LU the allocation of 300 affordable housing allocations from DEO with approval of the Administration Commission. LU 67. DEO determined there were not enough building permits available under the current regulatory structure to address the need for affordable U r r 22 Exhibit"A" Packet Pg.3768 S.1.k housing in the Florida Keys.As a result, DEO developed the Keys Workforce o .2 Affordable Housing Initiative (the "Housing Initiative")to allow up to 0 1,300 new building permit allocations for workforce housing throughout the Florida Keys, with an initial allocation not to exceed 300 per local CL government. 68. Under the Housing Initiative, the additional units are to be deed- .E restricted for workforce affordable housing and required to evacuate in Phase I, along with tourists, visitors, mobile home residents, and military M personnel. g 69. The Administration Commission approved the Housing Initiative at 21 M 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 cs 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." 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 r U 71. The Marathon Plan Amendment creates a new Future Land Use 0 ("FLU') goal stating the intent to participate in the Housing Initiative o approved by the Administration Commission. It further creates a new FLU 0 Objective establishing a"new limited category" of building permit allocations known as "Affordable—Early Evacuation Pool" providing 300 workforce LL affordable building permit allocations in addition to the allocations identified 0 LU 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 U r r 23 Exhibit"A" Packet Pg.3769 S.1.k followed and the distribution is based on the BPAS ranking procedures in 0 r effect. CL 0 72. The second policy provides the following"Specific Standards and M Requirements for Workforce Affordable Housing": - a Affordable-Early Evacuation residential units o under this program shall: y r a. be multifamily structures; 0 b. be rental units; U M c. require, at a minimum, adherence to the latest edition of the Florida Building Code[]; 21 M d. not be placed in the V-Zone or within the Coastal Barrier Resource Systems; e. require on-site property management; 2 0 f. comply with applicable habitat and other locational criteria and densities for multifamily affordable housing units; y r g. shall not be placed in any habitat defined as mangroves, saltmarsh & buttonwood, hardwood E hammock, or fresh water wetlands (disturbed categories excepted); M r h. incorporate sustainable and resilient design principles into the overall site design; 0 M i. ensure accessibility to employment centers and CL amenities; and j. require deed-restrictions ensuring: 0 '- (i) the property remains workforce-affordable LU housing in perpetuity; (ii) tenants evacuate during the period in which LU transient units are required to evacuate; M U r r 24 Exhibit"A" Packet Pg.3770 S.1.k (iii) rental agreements contain a separate o disclosure requiring renters to acknowledge that CL failure to adhere to the evacuation requirement 0 could result in severe penalties, including eviction, to the resident; and a (iv) on-site property managers are formally trained 0 to in evacuation procedures. y r .E 73. The third policy exempts from the early evacuation requirement all first responders, correctional officers, health care professionals, or other first- M response workers required to remain during an emergency. g 74. The fourth policy requires the workforce-affordable developments to 21 M comply with federal accessibility standards. 75. The last policy requires Marathon to provide DEO with an annual 0 report on the implementation of the Housing Initiative, including cs documenting the number of workforce-affordable housing units built, occupancy rates, and compliance with the early evacuation requirement. The 3 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 E building permit allocations in addition to the allocations identified in M chapter 28-19. In all other respects the amendment is identical to the U Marathon Plan Amendment. 77. The Key West Plan Amendment approves the receipt of 300 workforce- o a affordable building permit allocations "as well as any additional allocations which may be authorized by the Florida Administration Commission or 20 transferred to Key West that are not accepted by other Florida Keys LL municipalities or Monroe County." Rather than authorizing distribution of 0 LU 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 LU procedures. Allocation of the Key West permits is not required to follow BPAS E ranking unless the number of applications received exceeds the authorized M r r 25 Exhibit"A" Packet Pg.3771 S.1.k allocation. There are also two minor differences in the "Standards and o Requirement for Workforce-Affordable Housing" in the Key West Plan o Amendment: it does not contain the paragraph prohibiting placement of units M r_ in buttonwood and hardwood hammock; and it does not require that property iL a managers be trained in evacuation procedures. Otherwise, the Key West Plan o t� Amendment is virtually identical to that adopted by Marathon and y r Islamorada. Petitioners' Challenxaes 78. Petitioners challenge the Plan Amendments, generally, as inconsistent U g with the FKCCS and the carrying capacity approach to planning in the Keys. The two main contentions are hurricane evacuation and environmental as concerns. y 0 Hurricane Evacuation 79. Petitioners posit that the Plan Amendments violate the Principles and o 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 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 r 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 0 buildout number was derived directly from the Work Group after agreement C 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 M evacuation of permanent population within 24 hours. L- LU LU 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. U r r Q 26 Exhibit"N' Packet Pg.3772 S.1.k 81. It is undisputed that the new residential units to be allocated under o .2 CL 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 CL — E residents of mobile homes, "permanent RVs," live-aboard vessels, and �0 military personnel—to evacuate in advance of the start of the 24-hour clock. . That requirement is incorporated into the local government comprehensive 0 plans which have previously been found to be "in compliance"—meaning both M internally consistent and consistent with the Principles. g 82. Petitioners introduced the testimony of Richard Ogburn, a planning 21 M expert who has extensive experience with hurricane evacuation modeling in as South Florida, including the Keys. Mr. Ogburn was directly involved in the 0 Work Group hurricane evacuation modeling that culminated in the 2012 cs 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 3 modeling based on the 2010 census data. It was to be a pilot for updating the statewide regional evacuation plan utilizing the new census data. 83. Specifically, Mr. Ogburn, who was at the time employed by the South Florida Regional Planning Council, extracted demographic data from the M 2010 census and created the demographic data base for use with the TIME U model. Mr. Ogburn subsequently completed"validation runs" of the TIME model results generated by DEO staff during the Work Group process.18 o CL 84. In 2013, while Mr. Ogburn was working on the update to the statewide regional evacuation model, Mr. Ogburn discovered some blank cells within the census block group data sets in the original spreadsheet he had created LL for DEO. The missing information was the number of vehicles identified 0 LU within those specific census block groups. With respect to Monroe County, eight of the 76 block groups were missing vehicle data. LU r 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. U r r Q 27 Exhibit"N' Packet Pg.3773 S.1.k 85. Mr. Ogburn found an alternative data source from which to derive the o number of vehicles in the associated census block groups and reran the model o for purposes of updating the statewide regional model. In 2014, Mr. Ogburn M C reported the census data errors to DEO, which requested he rerun scenario 0. a M5 after including the missing vehicles. The result was an increase of two- o to and-a-half hours for evacuation of Phase II—a total clearance time of y r 26.5 hours. C 86. Mr. Ogburn testified that, based on the best-available data on hurricane evacuation clearance times, the evacuation of site-built dwellings U g in the Keys already exceeds the 24-hour evacuation standard mandate by statute (and incorporated into Respondents' comprehensive plans). In his as opinion, adding units authorized by the Housing Initiative would further 0 exacerbate the problem. 87. Petitioners introduced other evidence aimed at tearing down the o 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 C 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 r 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 0 doubt on the ability of meteorologists to predict storms with accuracy 48 C hours in advance of landfall. 88. The Keys local government comprehensive plans, as adopted with use M C of the TIME model, and all underlying assumptions and inputs, have LL LU previously been determined to be "in compliance." The question of whether those assumptions and model inputs are supported by data and analysis is LU C 0) U r r 28 Exhibit"K Packet Pg.3774 S.1.k not properly before the undersigned in this proceeding. The evidence was, for o .2 the most part, irrelevant.19 0 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 CL of the local government comprehensive plans. Mr. Ogburn agreed on cross- �0 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 M Phase I, it would have no effect on the analysis for Phase II. g 90. Notably, when Mr. Ogburn was asked directly whether the additional 21 M 1,300 units added to permanent population would cause the Keys evacuation a time to exceed 24 hours, Mr. Ogburn testified: 0 If the evacuation takes place ahead of time, it's a different question and I don't have a clear answer o 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 phase to increase significantly.120] y r 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 C E on the transient occupancy rate utilized. M r 92. Respondents introduced the testimony of Joaquin Vargas, a traffic engineering consultant who was accepted as an expert in transportation 0 planning, including roadway capacity issues related to hurricane evacuation. CL Mr. Vargas participated in hurricane evacuation modeling in the Keys in the 1990s to determine potential roadway improvements that could reduce Keys 0 evacuation clearance time. Mr. Vargas was the principal author of the "Miller LL Model," which was utilized in these studies. LU _.._. _.........0 uJ 19 Moreover,the evidence served to undercut Petitioners'argument that the best available data and analysis supports the 24-hour evacuation clearance time cap. 20 T2:79;1-6. U r r Q 29 Exhibit"A" Packet Pg.3775 S.1.k 93. Mr. Vargas' modeling was not based on a two-phased evacuation. 0 Instead, the Miller Model assumed evacuation of all permanent population o simultaneously in order to identify where roadway improvements would M C reduce the evacuation clearance time. - a 94. Mr. Vargas introduced the results of a model run of simultaneous o to evacuation of the Keys without units authorized under the Housing y r 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 M evacuation clearance time of 21 hours and 34 minutes. With the additional U g 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 a comparable, and because Mr. Vargas utilized inputs and assumptions that y 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 y r C the more recent 2010 data, which Mr. Vargas admitted"w[ould] provide more accurate information," and included inaccurate data, such as non-existent 0 lane segments which inflated capacity on some roadway segments. While r 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 0 compliance" comprehensive plans are based on use of the TIME model to CL determine maximum buildout in the Keys. 20 96. Mr. Ogburn completed a run of the TIME model in 2014 which 0 included the previously-missing vehicles from the census block groups in LL LU 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 LU for Phase 1, without the additional units from the Housing Initiative, is 0) 19 hours. Thus, the evidence does not support a finding that the evacuation of U r r 30 Exhibit"A" Packet Pg.3776 S.1.k Phase I with the additional 1,300 units cannot be completed within the first o .2 24 hours of a 48-hour evacuation scenario. o 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 CL evacuate Keys permanent residents in 24 hours or less. 0 to 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, Petitioners alleged the Plan Amendments are inconsistent with the following M provisions of Respondents' comprehensive plans: g Marathon: 21 M • FLU Objective 1-2.1, which requires Marathon to "ensure the availability of adequate public facilities and services[.]" 0 • FLU Objective 1-2.2, requiring Marathon to "meet the required 24- 0 hour hurricane evacuation time or other applicable state standard for o 3 hurricane evacuation." y • FLU Objective 1-3.5, requiring Marathon to "manage the rate of new development to ... support safe and timely evacuation prior to a hurricane." E M r • Conservation and Coastal Element Policy 4-1.21.2, requiring Marathon to coordinate with Monroe Count updating y in p g policy formulations 0 CL regarding land use and emergency preparedness and to plan for future land use densities that will not adversely impact the efficiency of 20 hurricane evacuations or increase evacuation times. M - • Intergovernmental Coordination Element ("ICE") Objective 5-1.1, requiring Marathon to maintain coordination mechanisms with the LU comprehensive plans of Monroe County and adjacent municipalities. E U r r 31 Exhibit"A" Packet Pg.3777 S.1.k • ICE Policy 5-1.1.2, requiring Marathon to coordinate with adjacent 0 jurisdictions "for the development of joint strategies to address o development, zoning, and land-use decisions that transcend jurisdictional boundaries." - a 0 • ICE Policy 5-1.1.10, requiring Marathon to establish a program to y provide and review proposed plan amendments of adjacent local governments to ensure consistency. o r M • Policy 5-1.2.10), requiring Marathon to enter into interlocal g agreements or develop joint resolutions in areas of mutual concern, 21 M including the coordination of hurricane evacuation plans. Islamorada: 0 • FLU Goal 1-1, which provides that the comprehensive plan shall U "[e]ncourage[] sustainability by limiting growth in order to establish P and maintain acceptable levels of service for hurricane evacuation[.]" • Transportation Element ("TE") Policy 2-1.2.8, which requires y r Islamorada to"address long-term strategies to reduce clearance time E and coordinate permit allocations" by implementing specifically-listed E programs with FDOT, FDCA, and other local governments in the Keys. M r U • TE Policy 2-1.2.9, which provides for the stagedlphased evacuation ®a procedure to maintain a 24-hour hurricane evacuation clearance time. a • TE Policy 2-1.2.10, which requires Islamorada to "support state funding for the update of the hurricane evacuation model that considers the impact of Miami-Dade County on evacuees[.]" LL LU • TE Policy 2-1.6.3, by which Islamorada"adopts 24 hours as the LU maximum allowable hurricane evacuation clearance time standard," and provides that"[t]he Village shall reduce and maintain hurricane �E U r r 32 Exhibit"A" Packet Pg.3778 S.1.k evacuation clearance time at or below 24 hours by ... limiting the o .2 CL annual allocation of permits ... as determined by interlocal agreement with the affected local governments in the Keys and the [DEO]." a • Coastal Management Element ("CME") Objective 5-1.9, requiring o t� Islamorada to "avoid population concentrations in the coastal high y r hazard area." 0 • CME Policy 5-1.10.2, requiring Islamorada to"coordinate with Monroe U County in emergency preparedness." g 0) 21 M • CME Objective 5-1.15, requiring Islamorada to "ensure intergovernmental coordination within the coastal area." 0 • ICE Objective 8-1.1, requiring Islamorada to "ensure 0 intergovernmental coordination." 0 3 • ICE Policy 8-1.2.1, titled"Coordinate Development and Growth Management Issues." • ICE Policy 8-1.2.8, titled"Implement Intergovernmental E Coordination." r Key West: U a • FLU Objective 1-1.16, requiring Key West to"regulate the rate of population growth commensurate with planned increases in CL evacuation capacity in order to maintain and improve hurricane -20 evacuation clearance times[,]" and"in concert with Monroe County, its M municipalities, and the State of Florida, [Key West] shall manage the U. LU rate of growth in order to maintain an evacuation clearance time of 24 hours for permanent residents." >� LU r E U r r Q 33 Exhibit"A" Packet Pg.3779 S.1.k • CME Goal 5-1, "Protect human life and limit public expenditures in areas subject to destruction by natural disasters[.]" CL 0 M • CME Objective -1. , requiring Key West to"coordinate with the State, CL the South Florida Regional Planning Council, [Monroe] County, and 0 other local governments in order to regulate population growth and y stage evacuations in amanner that maintains hurricane evacuation clearance times iai accordance with the executed OUI[.]" o r M • ICE Policy -1.1.3, which reads, in pertinent part, as follows: g 21 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 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 � transcending the [Key West's] political jurisdiction. E Issues of regional and state significance shall be coordinated. with the SP PC], the [SF D], U a.ndlor State agencies having jurisdictional authority. Issues to be pursued include but are not limited to the following: [Key West] shall CL implement the hurricane and transportation conclusions and policies relative to residential 20 units' allocation which are adopted by Monroe County arid. all municipalities as described in the [ OU] dated July 14, 2012. U. LU 99. Petitioners did not prove that the Marathon Plan Amendment is internally inconsistent with Objectives 1- .1, 1-2. , 1-3.5, and -1.1; and � r Policies 4-1. 1.2, -1.1.(2), -1.1.10, and 5-1. .1.j. U r r 3 Exhibit"A" Packet Pg.3780 S.1.k 100. Petitioners did not prove the Islamorada Plan Amendment is o .2 CL 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- 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 0 U inconsistent with Key West Comprehensive Plan Objectives 1-1.16, 5-1.6, .E Goal 5-1, and Policy 8-1.1.3. 102. Based on the foregoing Findings of Fact, Petitioners did not prove M that the Marathon and Islamorada Plan Amendments are inconsistent with g section 380.0552(9)(a)2., which requires the local governments in the ACSC 21 M to adopt goals, objectives, and policies to"maintain a hurricane evacuation clearance time for permanent residents of no more than 24 hours." 0 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. Petitioners' concerns fall into two categories which were the focus of the FKCCS: nearshore water quality and ecological impacts. Nearshore Water Oualitv of the Florida KeYS_ 104. Petitioners claim that the nearshore water quality of the Keys was U determined over 25 years ago to have exceeded its capacity to assimilate additional nutrients, that it remains nutrient-impaired today, and that the o CL additional development authorized under the Plan Amendments will further increase nutrient pollution from additional wastewater and stormwater 20 associated with development. 105. In 1990, Congress created the Florida Keys National Marine L- Sanctuary ("FKNMS"), and required development of a Water Quality Protection Program ("WQPP"), establishing comprehensive, long-term LU monitoring of water quality in the FKNMS.Under the Water Quality E U r r 35 Exhibit"A" Packet Pg.3781 S.1.k Monitoring Project ("WQMP"), water quality has been monitored quarterly at 0 approximately 150 sampling stations since 1995. CL 0 106. In 1997, the Governor and Cabinet approved the FKNMS M Management Plan for implementation in state waters, and required annual a reports from the FKNMS. 107. The 2011 FKNMS annual report stated that, "in general, water y r quality is good Sanctuary-wide but documentation of elevated nitrate in the r_ inshore waters of the Keys has been evident since" sampling began in 1995. M The report notes, "Observance of this type ... implies an inshore source which U g is diluted by low nutrient ocean waters," and that "[a]nalysis of monitoring data from 1995 through 2008 indicates a statistically significant as improvement in some parameters, such as dissolved inorganic nitrogen .. y The report concludes that"this trend will be watched closely in the future, �° particularly with regard to any potential effect attributable to ... water o 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 nitrogen) at < 0.010 parts per million ("ppm"), and TP (total phosphorous) at < 0.0077 ppm, among other nutrients, which are considered the values "essential to promote coral growth and overall health." Future sampling was 0 compared to the "baseline" from the 1995-2005 timeframe (e.g., the baseline CL 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, 0 M located within 500 meters of the shore in the Keys, referred to in the reports U. LU as the SHORE stations. 109. In 2015, FKNMS reported that an average of all stations (excluding LU 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 U r r Q 36 Exhibit"A" Packet Pg.3782 S.1.k meeting or exceeding the target for TP in 2011 through 2015, while falling o .2 short in 2008 and 2010. The 2017 annual report showed the stations meeting o 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 CL 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 .E meeting or exceeding the target for both nutrients. Again, in 2018, FKNMS 0 reported"very good water quality with median concentrations of TP at M .0051, lower than the 2017 level, and again well below the EPA target. g 110. In summary, the reports demonstrate the stations fell below the 21 M 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, 0 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 0 3 trend of improvement, at least with respect to DIN and TP. 112. The 2014 report documented elevated nutrient concentrations of DIN C and TP in waters close to shore along the Keys, attributable to"human impact." 0 113. The 2015, 2017, and 2018 reports exclude the data from the SHORE U stations for purposes of demonstrating compliance with target values because they "introduce a bias to the dataset which results in a reporting o problem[.]"21 C 114. The 2017 report does include an analysis of the geographic 20 differences between testing stations. The report indicates a significant difference between the median levels of nutrients sampled in SHORE U. LU stations when compared with the "alongshore," "channel," and"reef' stations. LU_......n..............._..... 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 a) corroborated by any non-hearsay evidence. E U r r Q 37 Exhibit"A" Packet Pg.3783 S.1.k However, the median levels of many of the nutrients are still at or below the 0 EPA targets, even measured at SHORE stations. For example, the median o level of TP, which the report recognizes as one of the most important M r- determinants of local ecosystem health, at the SHORE stations was just 0. a below .007, compared to the EPA target of.008. o U 115. More importantly, Petitioners focus on the SHORE station data was y r inconsistent with their challenge that the nearshore water quality remains impaired. Petitioners' planning expert, Ms. Jetton, defined nearshore as M approximately 12,000 meters from shore, not merely within 500 meters of U g shore. The 2017 report breaks out the "alongshore" stations as well as the SHORE stations. That data shows the median value of TP at the alongshore as stations is approximately .0055, well below the target of.008. Notably, 75 y percent of the alongshore stations sampled TP below the target .008. With �° a) respect to DIN, the median of alongshore station samples is below the target o 0 of.01; and 75 percent fall below .015. 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 E the water is becoming clearer. The 2014 report showed no significant trends r in TP, but the 2018 report noted small, but significant, declining trends in TP values in most surface waters.22 O 117. In 1995, the EPA and the Department of Environmental Protection CL ("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 U. can be discharged to those water bodies while still achieving water quality c' LU 22 The 2018 report does not contain the same detailed comparison of SHORE station samples d.d with the other stations, as did the 2017 report. E 23 33 U.S.C. § 1251 et seq. U r r Q 8 Exhibit"A" Packet Pg.378�4 S.1.k targets. An alternative mechanism, a Reasonable Assurance Document o .2 CL ("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 CL each of the affected local governments became a signatory to a Stakeholder's �0 Agreement to implement the FKRADs. The FKRADs established two sets of .E nutrient targets: (1) an insignificant increase in concentration above natural 0 background within the HALO zone, which is 500 meters of shore, not M including canals; and (2) the average of values measured at the nearshore g (500 meters to 12,100 meters from the shoreline). The FKRADs identify 21 M 23 impaired estuarine water body identifications ("WBIDs"). The WBIDs are Class III water bodies, defined by the Clean Water Act as "used for 0 recreation, propagation, and maintenance of a healthy, well-balanced cs 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 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 M the target is an"as insignificant increase above natural background for each U nutrient." "Insignificant" is defined as less than ten micrograms per liter (<10 µg/1) of TN, and< 2µg/1 for TP. o a 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 M - meeting the strategic targets[.]" Ms. Jetton concluded, based on the 2018 LU Update to the FKRAD, that "there should be no more development added to [the Keys] until the [WBIDs] can consistently meet their strategic targets." LU 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 U r r 39 Exhibit"N' Packet Pg.3785 S.1.k that the RADs reflect"current water quality as it's been affected by the 0 wastewater facilities that have been upgraded in the Keys to date." CL 0 121. That testimony is unreliable. The purpose of the 2018 Update is M C plainly set forth in the document itself: to document actions taken by 0. a stakeholders since 2011 and to address the DO impairment identified by DEP o to is some water segments; to include a revised approach to monitoring and y r reporting results; and to identify a schedule to meet water quality targets C and restoration goals. 122. The 2018 Update to the FKRAD contains neither data on samples of U g TN and TP in the HALO zone waters, nor any analysis of whether the target—insignificant increases above natural background—has been a 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 o sets, "decrease in nearshore nutrient concentrations in comparison to water quality targets and OFW background concentrations." Injection Wells and Nearshore Water t._uaht-y r C 123.Absent concrete evidence to support Petitioners' claim that the nearshore waters have not recovered from their 1995 impaired designation such that they can assimilate pollutants from additional development, r Petitioners argue that the existing"improved' wastewater and stormwater treatment infrastructure in the Keys does not adequately protect marine and 0 coastal resources of the Keys, and that the addition of new development will C exacerbate the problem. Specifically, Petitioners posit that shallow 20 wastewater injection wells degrade nearshore water quality. M 124. Marathon injects treated wastewater effluent into shallow injection U. LU wells, which are drilled to a depth of at least 90 feet and cased to a minimum depth of 60 feet. LU 125. Marathon's five injection wells are permitted to, and currently a) operate at, a permitted capacity of.200 million gallons per day ("MGD"), r r Q 40 Exhibit"A" Packet Pg.3786 S.1.k .400 MGD, .200 MGD, .500 MGD, and .450 MGD, respectively. Marathon's o .2 injection wells are designed and permitted to exceed full build out. o M 126. Key West injects its treated wastewater effluent into deep injection C iL wells, which are 3,000 feet deep and are cased to a minimum depth of 2,000 CL 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 0 permitted capacity for its injection wells. M 128. Islamorada does not have its own municipal wastewater effluent g injection wells or wastewater treatment plant. Islamorada's wastewater is 21 M transmitted to the Key Largo Regional Wastewater Treatment Facility ("Key Largo Wastewater Treatment Facility"), which treats and injects effluent into 0 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 3 Key Largo Wastewater Treatment facility are designed and permitted to exceed full build out. C a) 130. Ms. Jetton testified that, based on reports she has reviewed, when C you inject effluent into shallow injection wells, that water will reach the M surface water"within a few hours or a few days." She referenced numerous U scientific reports which were admitted in evidence as sources on which she based her opinions. She further referred to findings in the Administration o . Commission's 1995 Final Order that deep water injection wells are a better form of treatment than shallow injections wells. Finally, Ms. Jetton pointed to the 2014 and 2017 FKNMS reports as evidence that shallow well injections U. may contribute to nutrients in nearshore waters. ' LU 131. The excerpt of the 2014 report introduced in evidence contains no reference to a relationship between shallow injection wells and the water LU r C 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. U r r Q 41 Exhibit"A" Packet Pg.3787 S.1.k quality of nearshore waters. The 2017 report mentions there may be a 0 r CL connection. 0 132. Respondents introduced the testimony of Michael C. Alfieri, who is a 0 licensed professional geologist, certified by the National Groundwater iL a Association as a ground water professional, and certified by the American o t� Institute of Hydrology as a professional registered hydrogeologist. y r Mr. Alfieri's main practice in Florida is in karst hydrogeology, and he is one r_ of the authors of the definitive text in Florida on karstology. 133. Mr.Alfieri testified that the subsurface conditions in Marathon, as U g shown in the core samples and boring logs he personally reviewed, indicate the presence of aquitards26 and semi-confining materials, including calcite as 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. Rased on his knowledge and experience, Mr.Alfieri testified that o 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 absorbed by, the surrounding rock, which reduces nutrient concentration. 135. Mr.Alfieri testified that based on the advanced wastewater r 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 C horizontally transmissive, the additional residential units authorized by the 20 Plan Amendments would have no impact on nearshore waters of the Florida M Keys. U- LU 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 K LU makes it difficult for water to move through. r 0 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." U r r Q 42 Exhibit"N' Packet Pg.3788 S.1.k 136. The undersigned finds Mr.Alfieri's testimony more persuasive and o r reliable than Ms. Jetton's recounting of studies undertaken by other o M professionals. C 2 137. On the theory that injected treated effluent contaminates the c` a nearshore waters of the Keys, Petitioners allege the Plan Amendments �0 render Respondents' comprehensive plans internally inconsistent with the .E following policies, respectively: C 0 Marathon M • Infrastructure Element ("IE") Goal 3-1: JE]nsure availability of g needed public facilities associated with wastewater disposal ... in a 21 M 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 0 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 r quality[.]" C • IE Objective 3-2.2: "[Marathon] shall regulate land use and E development to ... protect the functions of natural drainage features U as and groundwater from the impacts of wastewater systems." E Islamorada a • FLU Goal 1-1, which provides in pertinent part, as follows: The comprehensive Plan shall provide a growth M management framework that ... encourages LL sustainability by limiting growth in order to 0 LU 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 C establish limits for growth ... to ensure that human E induced activities do not diminish assets of our U r r 43 Exhibit"A" Packet Pg.3789 S.1.k unique coastal environment; and provides a sound o basis for developingland. use controls that ... CL protect coastal resources, including nearshore waters, wetlands, grassbed flats, mangroves... and M establish a basis for managing .. water cluality[J . • ClE Goal 6-1; "Isla ora .a ... shall ll conserve, manage, rase and protect o to the natural and environmental resources ... based on their carrying y r capacity limitations to ensure continued resource availability and environmental quality." °° M U M C"E Objective -1.9: "Isla. ora. a ... shall provide requirements 21 designed to protect fisheries, wildlife and wildlife habitat from the M adverse impacts of development,by regulating the location, density and .y intensity of those activities that cause the adverse impact." o cs Key° West l'LU foal 1-1® "Minimize Threats To Health, Safety, And Welfare Which May Be Caused y Incompatible Land Uses, Environmental l,}t', radation[J"27 E CME Goal 5-1- "Coastal Management. Restrict development activities M that would damage or destroy coastal resources. Protec;t human life U and limit public expenditures in areas subject to destruction by natural ®a dis asters[J" CL ME Objective -1°1. "Protect Coastal Resources, Wetlands, Estuarine Salt Pond Environmental Quality, Living Marine Resources, And M Wildlife Habitats. ... (1) Preventing potentially adverse impacts acts of U. development and redevelopment on wetlands, estuaries, water LU 27 Petitioners inaccurately cite the monitoring measure attributable to Objective 1-1.16 as if LU r it relates to Goal 1-1-The Monitoring Treasure attributable to Objective 1-1.16 is`Number of � building permits allocated annually in accordance with the implementing policies." U r r Q 44 Exhibit"A" Packet Pg.3790 S.1.k resources, living marine resources, and other natural resources; o (2) Maintaining or improving coastal environmental quality by o improving stormwater management[.]" CL • CME Policy 5-1.1.4: "Protect Living Marine Resources, Coastal Marsh, 0 and Seagrass Beds ... [Key West] shall seek to enhance seagrass beds y and coastal nontidal wetland habitats[.]" 0 • CME Policy 5-1.2.2: "[Key West] shall continue to limit the specific and U cumulative impacts of development and redevelopment upon water 21 quality and quantity, wildlife habitat, and living marine resources by M 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 U 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. 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." M r U as • CE Objective 6-1.2: "Detrimental water quality impacts, including adverse impacts to the coral reef system shall continue to be combated CL by public facility improvements identified in the Public Facilities Element .... Monitoring Measure:Achievement of water quality . M standards." '. LU 135. Respondents' wastewater treatment plants are in compliance with their DEP wastewater treatment plant and injection well permits. LU r U r r 45 Exhibit"N' Packet Pg.3791 S.1.k 139. Furthermore, there have been no violations of the permits for 0 Respondents' wastewater treatment facilities that could potentially impair o nearshore water quality. M 140. As a condition precedent to issuing permits for Respondents' injection 0. a wells, DEP required Respondents to provide reasonable assurance that the o to operation of the wells will not cause or contribute to a violation of surface y r water quality standards and will not harm environmental resources. 141. Petitioners did not prove that the Marathon Plan Amendment is M internally inconsistent with the Marathon Comprehensive Plan Goal 3-1, U g Goal 3-2, and Objective 3.2.2. ;, 142. Petitioners did not prove the Islamorada Plan Amendment is a internally inconsistent with Islamorada Comprehensive Plan Goal 1-1, y Goal 6-1, and Objective 6-1.9. �° 143. Petitioners did not prove the Key West Plan Amendment is internally 0 inconsistent with Key West Comprehensive Plan Goals 1-1 and 5-1; Objective `o 3 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 E regard to habitat protection. r 145. The FKCCS recommended four guidelines for future development in the Keys: (1) prevent encroachment into native habitat; (2) continue and 0 intensify existing programs (e.g., land acquisition, wastewater treatment); CL (3) focus future growth on redevelopment and infill; and (4) increase efforts to manage the resources. 0 146. Since the FKCCS was published in 2002, the local governments in - LU the ACSC have completed numerous work programs designed to implement the recommendations, including updating habitat mapping, maximizing >� LU grant funding for land acquisition, and acquiring environmentally-sensitive lands to remove them from potential development. E U r r 46 Exhibit"N' Packet Pg.3792 S.1.k 147. Furthermore, the BPAS system integrates environmental concerns o CL 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 CL affords the least weight to applications on lots containing sensitive areas as 0 U identified on the vegetation and species maps. Further, the Marathon plan .E provides that, "in no case shall more than one (1) BPAS allocation per year be 0 issued for properties which in part or whole designated as Hardwood M Hammock, Palm Hammock, Cactus Hammock, or Beach/Berm." g 148. The Key West comprehensive plan mandates that new development 21 M preserve, at a minimum, "all wetlands and ninety (90) percent of hardwood hammocks." The Key West plan does not allow development in any wetlands 0 "except where State and/or federal agencies having jurisdiction provide for cs development rights." 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 disturbed and undisturbed habitats by applying the most stringent open E M space requirements to development sites containing the highest quality r U habitats. For example, the minimum open space requirement for high quality hammock is .90; while for undisturbed saltmarsh and buttonwood wetlands, o CL 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 buttonwood wetlands, as well as disturbed mangrove and freshwater wetlands. U. LU 150. Nevertheless, Petitioners argue that the Plan Amendments allow new units to be built in disturbed hammock, which constitutes additional LU encroachment into hammock, contrary to the FKCCS. Petitioners point to E the provision of the Plan Amendments which provides that the workforce U M r r 47 Exhibit"A" Packet Pg.3793 S.1.k affordable units "shall not be placed in any habitat defined as mangroves, 0 saltmarsh &buttonwood, hardwood hammock,[281 or fresh water wetlands o (disturbed categories excepted)[.]" C 151. The provisions of the Plan Amendments must be read together with 0. a existing comprehensive plan provisions. When read together, the Marathon o to comprehensive plan may not allow any of the affordable-early evacuation r units to be built on any hammock habitat because it only allows one BPAS C permit per year be allocated to any parcel containing designated hardwood •0 M hammock. Since the Plan Amendment requires the units be built as U g multifamily, thereby utilizing multiple allocations for one application, it is impossible to permit the new affordable units on any lot designated hardwood as hammock. y 152. Further, the Marathon BPAS weighting system will apply to the new �° allocations,29 which will continue to direct development to scarified lots, and o 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 data and analysis of the ecological carrying capacity of the Keys. r 154. Petitioners allege that the Plan Amendments are internally inconsistent with the following provisions of the Marathon and Islamorada 0 CL plans relating to ecological concerns: Islamorada: • GOAL 1-1:IMPLEMENT FUTURE LAND USE VISION, which reads, in pertinent part, as follows: LL LU _......— _....._...... uJ 28 The Islamorada Plan Amendment refers to"tropical"hardwood hammock. •. r C 0 29 Only the Key West Plan Amendment exempts the allocation of the affordable-early evacuation units from the BPAS. U r r Q 48 Exhibit"N' Packet Pg.379�4 S.1.k [Islamorada was] incorporated to create a o Comprehensive Plan to reclaim the Keys by CL conserving, preserving, and retaining our -a° remarkable assets—our waters and natural environment—and our quality of life; Encourages sustainability by limiting growth in order to .. CL reclaim and preserve the quality of our natural U0 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 o coastal environment[.] M U M • Policy 2-1.9.3: Participate in the Florida Keys Carrying Capacity 0) 21 Study. ... "[Islamorada] shall continue to support the technical M as undertakings of this study, and the establishment of carrying capacity .y limitations for the Florida Keys." • 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." y • Policy 6-1.4.4: "Islamorada ... shall use the best available technical E criteria and information to formulate regulations and ordinances r which shall ensure that future development is compatible with the functioning and carrying capacity of existing natural systems and 0 resources conservation." CL Marathon -a • Objective 1-2.1: which calls for adequate public facilities and services M for future growth"to ... protect valuable natural resources...." U. 0 LU 155. Petitioners did not prove the Marathon Plan Amendment is LU internally inconsistent with Objective 1-2.1. E U r r 49 Exhibit"A" Packet Pg.3795 S.1.k 156. Petitioners did not prove the Islamorada Plan Amendment is 0 internally inconsistent with Goal 1-1, Policy 2-1.9.3, Goal 6-1, and o Policy 6-1.4.4. M C Other Contentions a- a Survevs Studies. and Data E O t� 157. Petitioners alleged the Plan Amendments violate section y r 163.3177(6)(a)2., which reads, in pertinent part, as follows: C 2. [P]lan amendments shall be based upon surveys, .° studies, and data regarding the area, as applicable, including: g 21 a. The amount of land required to accommodate M anticipated growth. .y b. The projected permanent population of the area. o c. The character of undeveloped land. 0 d. The availability of water supplies, public facilities, and services. e. The need for redevelopment, including renewal of C blighted areas and the elimination of nonconforming uses which are inconsistent with the character of the community. 0 M f. The compatibility of uses on lands adjacent to or closely proximate to military installations. ®a g. The compatibility of uses on lands adjacent to an CL airport[.] h. The discouragement of urban sprawl. M C i. The need for job creation, capital investment, and '- economic development that will strengthen and LU 0 diversify the community's economy. LU j. The need to modify land uses and development r patterns with antiquated subdivisions. a) (emphasis added). E M U r r 50 Exhibit"A" Packet Pg.3796 S.1.k 158. Many of the listed criteria are not applicable to the Plan o r Amendments because the Plan Amendments do not propose a specific type of o development at a specific location, do not implicate antiquated subdivisions, 2 and do not specifically implicate redevelopment of blighted areas. 0- a 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 C 0 the service sector of the economy—including retail and restaurant services, M as well as public school and first-responder services—during plan review and g adoption. M 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. +� 0 Meanin-ful 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[.]" 162. First, Petitioners focus on the language of the Plan Amendments which requires location of the workforce-affordable housing to"ensure accessibility to employment centers and amenities." Petitioners argue that, a) because none of the Plan Amendments define either"employment center" or "amenity," these standards are not meaningful to identify those sites which would qualify for development under the Plan Amendments. o CL 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 20 contain a definition section, would be rendered meaningless. That simply cannot be the case. U. LU 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 C housing ... shall be approved only if such sites [are] ... [a]ccesible to r r 51 Exhibit"A" Packet Pg.3797 S.1.k employment centers[.]" The Key West comprehensive plan uses the same 0 exact language in Policy 3-1.1.7 for siting affordable housing generally, and o in Policy 3-1.1.11 for siting housing for low- and moderate-income households M particularly. Clearly, determining whether the housing provided for in the a Plan Amendments is "accessible to employment centers" will not be a novel o t� undertaking, at least not for planners in Key West and Islamorada where y r that same standard has been successfully applied to siting affordable housing prior to the Plan Amendments. 165. The Marathon comprehensive plan does not employ the same terms. U g Yet, Mr. Garrett had no difficulty identifying Old Town as an employment center in Marathon. In fact, Mr. Garrett identified all the City's employment as centers as being located generally between Coco Plum and the Seven Mile y Bridge. As for determining whether the housing authorized under the Plan �° Amendment will be "accessible" to an employment center, Petitioners o 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 y r example, he testified that housing located a mile-and-a-half from an employment center in Marathon is accessible by bus routes that run throughout the day. r 166. Petitioners contend that the language is not meaningful because the term "amenities" is also not defined in the Plans. In their Proposed 0 Recommended Order, Petitioners state, "It is unknown whether this term CL means anything over and above required concurrency facilities." 20 167. When a legislative term is not specifically defined, it must be given 0 its plain and ordinary meaning. See Greenfield v. Daniels, 51 So. 3d 421, 426 U. (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. 1997))). It is appropriate to refer to a dictionary definition to ascertain the E U r r Q 52 Exhibit"X Packet Pg.3798 S.1.k plain and ordinary meaning of legislative terms. See Survivors Charter Schs., o r 3 So. 3d at 1233. o 168. The definition of"amenity" is "something that helps provide comfort, convenience, or enjoyment."Merriam-Webster.com, at www.merriam- a 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. r_ Common sense examples are gas stations, convenience stores, and banks. 169. Petitioners did not prove that the phrase "ensure accessibility to g employment centers and amenities" fails to provide meaningful and 21 predictable standards for the use and development of land under the Plan Amendments. y 0 170. Next, Petitioners contend that the requirement to "incorporate cs sustainable and resilient design principles into the overall site design" of the workforce-affordable housing is meaningless. In support of this contention, 3 Petitioners introduced the brief, conclusory statement by Ms. Jetton that 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 found that they are not. 171. Petitioners did not prove that the Plan Amendments' direction to "incorporate sustainable and resilient design principles" fails to provide meaningful and predictable standards for the use and development of land o CL under the Plan Amendments. 172. Finally, Petitioners make a variety of arguments to establish that the 20 Plan Amendments do not provide meaningful standards to ensure enforcement of(1) use of the units for workforce-affordable housing, and L- LU (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 reference any such requirements." Ms. Jetton testified that, because the Plan M r r 53 Exhibit"A" Packet Pg.3799 S.1.k Amendments do not include, or otherwise adopt, HUD income guidelines, 0 they will not produce affordable housing. o 174. The Plan Amendments require the use of deed restrictions to ensure: M C CL (i) the property remains workforce-affordable housing in perpetuity; �° y (ii) tenants evacuate during the period in which transient units are required to evacuate; 0 r (iii) rental agreements contain a separate disclosure requiring renters to acknowledge that g failure to adhere to the evacuation requirement ;1 could result in severe penalties, including eviction, M to the resident; and a .y (iv) on-site property managers are formally trained in evacuation procedures.[30] U 0 175. Petitioners allege that because the term "workforce-affordable housing" is undefined, there is no mechanism to ensure that the housing built pursuant to the Plan Amendments will be reserved for persons with (n r C particular income limits. 176. As previously discussed, a term is not meaningless just because it is 0 undefined in the Plan Amendment. The Key West comprehensive plan r 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 0 housing costs." While the term is not specifically defined in the Islamorada CL and Marathon plans, both jurisdictions implement affordable housing programs established in their plans through more specific land development M C regulations which establish income limitations for that housing.As those LL LU plans are already in compliance, they cannot be said to lack meaningful and predictable standards. LU C 0) .........._. ----. .._. E 30 The Key West Plan Amendment does not include this provision. cs r r Q 54 Exhibit"A" Packet Pg.38700 S.1.k 177. Mr. Garrett testified that the term workforce would be given its plain o and ordinary meaning persons employed within the County. Thus, o workforce-affordable housing units are reserved for members of the workforce who meet the previously-established definitions of affordable housing used to CL implement the local governments' existing programs. 0 to 178. Petitioners' attack on the enforcement of the early evacuation requirement is, again, grounded in a lack of defined terms, as well as r_ 0 speculation that the provisions are unenforceable. Ms. Jetton speculated that M most residents of this housing would be either unable or unwilling to g evacuate early, and that the Plan Amendment language has no teeth to 21 M ensure early evacuation. She testified that the language is permissive— "failure to adhere to evacuation requirements could result in severe 0 penalties"—meaning it may not be enforced at all. According to her, because cs the term "severe penalties" is also undefined, the entire provision is meaningless to enforce the early evacuation requirement. 0 3 179. 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. 180. In addition, the Plan Amendments include a process for evaluation of the effectiveness and enforcement of the "early-evacuation pool" established therein. The Plan Amendments require each local government to report to DEO annually documenting the number of workforce-affordable housing o CL units built, the occupancy rates thereof, and compliance with the early evacuation requirement. Should there be any enforcement issues, the state -a can make refinements in the program. Further, data regarding either lack of LL enforcement of the units as "affordable," or required evacuation thereof, could 0 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. r r 55 Exhibit"A" Packet Pg.38701 S.1.k CONCLUSIONS OF LAW 0 182. The Division of Administrative Hearings has jurisdiction over the o subject matter and parties hereto pursuant to sections 120.569, 120.57(1), M and 163.3184(5), Florida Statutes (2019). - a 183. To have standing to challenge or support a plan amendment, a E 0 to person must be an"affected person," as defined in section 163.3184(1)(a). ' y r 184. Petitioners are all"affected persons" with standing to bring this action pursuant to 163.3184(1)(a). •0 M 185. "In compliance" means "consistent with the requirements of U g §§ 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, and 163.3248, with the 21 appropriate strategic regional policy plan, and with the principles for guiding a development in designated areas of critical state concern and with part III of y chapter 369, where applicable." § 163.3184(1)(b), Fla. Stat. �° 186. 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. Stat. y r 187. "The `fairly debatable' rule is a rule of reasonableness; it answers the question of whether, upon the evidence presented to the [government] body, the [government's] action was reasonably-based." Lee Cty. v. Sunbelt r Equities, II, Ltd. P'ship, 619 So. 2d 996, 1002 (Fla. 2d DCA 1993) (citing Town of Indialantic v. Nance, 400 So. 2d 37, 39 (Fla. 5th DCA 1981)). 0 188. The mere existence of contravening evidence is not sufficient to CL establish that a land planning decision is "fairly debatable." It is firmly established that: [E]ven though there was expert testimony adduced LL in support of the City's case, that in and of itself LU does not mean the issue is fairly debatable. If it did, every zoning case would be fairly debatable and the LU City would prevail simply by submitting an expert r who testified favorably to the City's position. Of course that is not the case. The trial judge still U r r 56 Exhibit"A" Packet Pg.38702 S.1.k must determine the weight and credibility factors o to be attributed to the experts. Here the finalCL judgment shows that the judge did not assign much weight or credibility to the City's witnesses. Boca Raton v. Boca Villas Corp., 371 So. 2d 154, 159 (Fla. 4th DCA 1979). CL 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 U "in compliance," that the Plan Amendments are inconsistent with the MOU. Petitioners' allegations of inconsistency with the MOU are not well taken. M 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 o Consol. Citrus v. 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 0 plan amendment is consistent with sections 163.3162, 193.461, 823.14, Florida Statutes, and Florida Administrative Code Rules 62B-33 and 40E-8 y 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 plan amendment is consistent with section 337.0261(3), Florida Statutes, is E not a compliance criterion); Monkus v. City of Miami, Case No. 04-1080 (Fla. as DOAH Sept. 3, 2004; Fla. DCA Oct. 26, 2004) (consistency with land E development regulations is not a compliance issue); Emerald Lakes Residents' a Ass'n v. Collier Cty., Case No. 02-3090 (Fla. DOAH Feb. 10, 2003; Fla. DCA 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 v. Town of Jupiter, Case No. 03-0718 (Fla. DOAH Oct. 24, 2003; Fla. 0 DCA Apr. 9, 2004) (whether plan amendment conflicts with local government resolution is not a compliance issue); Durham Park Neighborhood v. City of r Miami, Case No. 06-0759 (Fla. DOAH May 24, 2006 Order Granting Leave to E U r r Q 57 Exhibit"A" Packet Pg.38703 S.1.k Amend but Striking Portions of Amended Pet.) (striking Petitioners' claims 0 that plan amendment is not consistent with Florida Administrative Code o Rule 9J-11 because the provisions are not compliance criteria); and Pyle v. M City of St. Pete Beach, Case No. 08-4772 (Fla. DOAH Jan. 28, 2009, Order on a Mot. to Strike) (requirement to submit a"complete" plan amendment package o to pursuant to section 163.32456 is not a compliance issue). y r 191. If the MOU was adopted by reference in Respondents' comprehensive r_ plans, Petitioners' argument might have had merit. However, none of the comprehensive plans adopts the MOU by reference. The MOU is a separate U g stand-alone document which may be amended by agreement of the parties, outside of the statutory plan amendment process. as Internal Inconsistences y 192. Section 163.3177(2) mandates"the several elements of the �° cs comprehensive plan shall be consistent." `o 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 of nearshore waters, wastewater treatment, or habitat protection. 194. Petitioners did not prove beyond fair debate that the Plan Amendments are inconsistent with section 163.3177(2). r Data and Anal sis U, 195. Section 163.3177(1)(f requires plan amendments to be "based upon 0 relevant and appropriate data and analysis" by the local government, and C includes "surveys, studies, community goals and vision, and other data 20 available at the time of adoption." M 196. To be based on data"means to react to it in an appropriate way and LL 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. U r r Q 58 Exhibit"A" Packet Pg.38704 S.1.k 197. Based upon the foregoing Findings of Fact, Petitioners did not prove o the Plan Amendments are not supported by adequate data and analysis, or o fail to react to professionally-acceptable data in an appropriate way, 198. Petitioners did not prove beyond fair debate that the Plan c` a Amendments are inconsistent with section 163.3177(l)(f). Principles for Guidin Development r 199. "In compliance" is defined to include consistency with the Principles, r_ which apply to both Marathon and Islamorada.31 Petitioners alleged the Plan Amendments are inconsistent with section 380.005(9), which requires plan g amendments comply with the requirement to "maintain® a hurricane 21 M 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 0 Plan Amendments will not cause evacuation clearance time of the ACSC to exceed the 24-hour evacuation clearance time. `0 200. 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 and Islamorada Plan Amendments is to"[m]ake0 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 housing, which has a documented impact on the Keys' economy. The need to 0 CL 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. Stat. U. LU 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 LU 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. U r r Q 59 Exhibit"A" Packet Pg.38705 S.1.k (2)(a)7., which require plan amendments to "[s]trengthen local government 0 capabilities for managing land use and development"; "[p]rotect ... the public o health, safety, welfare, and economy of the City of Key West, and [maintain] M Key West as a unique Florida Resource"; and adopt an"evacuation plan a consistent with regional and [Monroe] County plans ... which provides an o to opportunity for residents and visitors to evacuate to a place of safety during a y r natural disaster," respectively. 202. Based upon the foregoing Findings of Fact, Petitioners did not prove .0 M beyond fair debate that the Key West Plan Amendment is inconsistent with U g the listed Principles. 21 Other Contentions a 203. Petitioners raised additional arguments, which were likewise not y proven beyond fair debate. 204. Petitioners alleged the Plan Amendments violate section 0 163.3177(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 y r 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. r 205. Based on the foregoing Findings of Fact, Petitioners did not prove, beyond fair debate, that the Plan Amendments are inconsistent with section 0 163.3177(6)(a)2. CL 206. Petitioners contend the Plan Amendments were inconsistent with section 163.3177(6)(a)8., which requires, as follows: M 8. Future land use map amendments shall be based LL upon the following analysis: LU a. An analysis of the availability of facilities and LU services. r E U r r Q 60 Exhibit"A" Packet Pg.38706 S.1.k b. An analysis of the suitability of the plan o amendment for its proposed use considering the character of the undeveloped land, soils, CL topography, natural resources, and historic resources on site. (emphasis added). 0. a 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 r- 0 with the requirement in section 163.3177(l) that local government M comprehensive plans "shall establish meaningful and predictable standards g for the use and development of land[." Based on the foregoing Findings of 21 M Fact, Petitioners did not carry.their burden of proof with respect to that a issue. y Conclusion 0 209. 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). y r RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining the City of Marathon Comprehensive Plan Amendment 2018-01, adopted on October 23, 2018; City of Key West Comprehensive Plan o CL Amendment 19-06, adopted on April 4, 2019; and Islamorada, Village of Islands, Comprehensive Plan Amendment 19-03, adopted on March 5, 2019; 20 are "in compliance," as that term is defined in section 163.3184(1)(b). U. LU LU r U r r 61 Exhibit"A" Packet Pg.38707 S.1.k DONE AND ENTERED this 25th day of September, 2020, in Tallahassee, 0 Leon County, Florida. o CL SUZANNE VAN WYK Administrative Law Judge �0 Division of Administrative Hearings ' y The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 g www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2020. y 0 cs COPIES FURNISHED: `o Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. Suite C 61 Northeast 1st Street Pompano Beach, Florida 33060 E E (eServed) Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. U Suite C 61 Northeast 1st Street 0 Pompano Beach, Florida 33060 CL (eServed) Shai Ozery, Esquire Robert N. Hartsell P.A. Suite C U. 61 Northeast lst Street LU Pompano Beach, Florida 33060 (eServed) LU E M U r r Q 62 Exhibit"N' Packet Pg.38708 S.1.k Barton William Smith, Esquire o Law Firm of Smith Hawks, PL CL 138 Simonton Street Key West, Florida 33040 (eServed) a Christopher B. Deem, Esquire �° Law Firm of Smith Hawks, PL 138 Simonton Street E r Key West, Florida 33040 (eServed) o r M Nicola J. Pappas, Esquire g Law Firm of Smith Hawks, PL 21 138 Simonton Street Key West, Florida 33040 (eServed) E .y Richard J. Grosso, Esquire Richard Grosso P.A. Mail Box 300 6511 Nova Drive `o 3 Davie, Florida 33317 (eServed) y r Shawn D. Smith, City Attorney City of Key West, City Attorney's Office 1300 White Street E Post Office Box 1409 M Key West, Florida 33040 U (eServed) George B. Wallace, Esquire CL City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 Key West, Florida 33040 M (eServed) LL LU Roget V. Bryan, Esquire Islamorada, Village of Islands 86800 Overseas Highway LU Islamorada, Florida 33036 (eServed) E U r r Q 63 Exhibit"A" Packet Pg.38709 S.1.k Janay Lovett, Agency Clerk o Department of Economic OpportunityCL Caldwell Building -a° 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) CL 0 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street .0 Tallahassee, Florida 32399-4128 M (eServed) g 21 Mark Buckles, Interim General Counsel M Department of Economic Opportunity as Caldwell Building, MSC 110 .y 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) 2 0 0 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case. E M r U as ®a 0 a 0 LL LU LU r E U r r Q 64 Exhibit"A" Packet Pg.38710 THEST e4a d THE CITY OF KEY WEST CITY CLERK'S OFFICE Post Office Box 1409 Key West,FL 33041-1409(305)809-3831•E-mail:csmith(c,,cisy ,fkeynest-fl. ov tt SENT VIA US CERTIFIED MAIL:_ 7018 0680 00018332 33 3 YCL 0. c March 12, 2019 N DEO-Bureau of Comprehensive Planning Ray Eubanks,State Land Planning Agency Caldwell Building .2 107 E.Madison MSC160 Tallahassee,FL 32399-4120 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 w 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 CD W inclusion into the City of Key West Comprehensive Plan; Providing for an effective date. ca 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 "01 Section 380.05, F.S.), hereby transmits one (1) hard copy and two (2) compact discs of a 2 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 ow 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. E Key to tfie Carr66ean—aveacage yearly tenilmiattare 77 °Tafiivnreit. Packet Pg. 3811 S.1.I THE CITY OF KEY WEST CITY CLERK'S OFFICE 0 Post Office Box 1409 Key West,FL 33041-1409(305)809-3831;E-mail:csmith@cityofkeywest-fl.gov CL 0. Amendment Name/Description: �i N 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. 0 Thank you in advance for your timely review of these materials. Should you have any questions 2 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, eAmt�, J41�� ca Cheryl Smith, MMC, CPM City Clerk Enc y CS/sph Cc: Plan Review, Department of Environmental Protection " Kenneth Jeffries, Florida Department of Transportation LU 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 yearfy temperature 77 °Ta(t.7er7fieit. Packet Pg. 3812 S.1.I ORDINANCE ® f9-06 WEST,AN ORDINANCE OF THE CITY OF KEY FLORIDA, AMENDING THE PLAN, ITY'S COMPREHENSIVE ADDING OBJECTIVE 1-1.17 AND ASSOCIATED POLICIES TO CHAPTER T "FUTURE ELEMENT"; OBJECTIVE _ 7 SHALL BE KNOWN AS THE "WORKFORCE-AFFORDABLE HOUSING 0 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 PROVIDING FOR > PLAN;INCLUSION INTO THE CITY OF KEY WEST COMPREHENSIVE EFFECTIVE DATE. AND PROVIDING FOR AN the City of Key West (the "City") has adopted a Comprehensive Plan 0 which has been found to be in compliance by the State Department of Community Affairs19 (" CA"),pursuant to Chapter 16 , Florida Statutes;and e City is located within the Floridaeys Area of Critical State Concern (the" ")as established su t to Chapter 30, Florida Statutes;aild co CD 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 WHEREAS, adding Objective 1-1.17 "Workforce-Affordable Housing Initiative" and LU associated policies, will further the goals, objectives, and policies of the City Comprehensive Plan;and Pagel of 5 Packet Pg. 3813 S.1.I NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF KEY WEST, FLORIDA: 0 The Comprehensive Plan is hereby amended as follows*: CL 0. 0 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 artici pate in the Workforce-Affordable Housing: Initiative, as approved during the June 13. 2018 meeting of the Florida Administration Commission The Workforce-Affordable Housing Initiative will require new construction that particil ates to commit to evacuating tenants in the Phase I clearance window of evacuation. The City. thereby, shall establish a new limited c category to be known as the "Affordable — Early Evacuation Pool" which will rode 300 4- 0 workforce-affordable building permit allocations for the Workforce-Affordable Housing Initiative as well as any additional allocations which mav be authorized by the Florida W U 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 co CD 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. LU * (Coding: Added language is underlined; deleted language is strruek th__ugh at first reading. Added language is double a_ib _ _�_.._i_ underlined and _____._ through at second reading. ) Page 2 of 5 Packet Pg. 3814 S.1.I 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 Wursuant to Chapter 108 of the Cit 's Land Development Re lations. In the event ap plications received exceed the allocations authorized herein, the competing applications shall be ranked in o 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:. b. _ be rental units; c. require. at a minimum, adherence to the latest edition of the Florida Buildin o 2 Code as published by the Florida Building Commission; 4- d. require on-site property management: o g CD e. comply with applicable habitat and other locational criteria and densities for W multiple-family affordable housinu,units., f incorporate resilient design principles into the overall site design.. cCD i g ensure accessibility to eml loyinent centers and amenities: , h. require deed-restrictions ensuring: 2 t i) the roPea y remains workforce-affordable housing in perpetuity: � np tenants evacuate during the Phase I evacuationperiod• m rental a reements contain a separate disclosure reguiring tenants to acknowledge that failure to adhere to the evacuation requirement could 03 result in severe penalties. including eviction, to the resident: Page 3 of 5 Packet Pg. 3815 S.1.I Police 1-1.17.3: Evacuation exem tions. Persons livin in workforce-affordable housing who are exempt from evacuation requirements of Pohc ° 1-1 17 2 h ii includefirst responders, ._ correctional officers, healthcare 13rofessionals, or other first-responder workers required to remain in the lower key; during an emergency _evacuation. .provided the 12erson claiming CL 0. exemtion under .hisolic has faithfull °certified their status with ro.ertv mana ement. c c, 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 1 planningagency with an annual re)orten the progress and_implementation. of the Workforce- Afford _ lude documentation of the number ofworkforce-affordable units built. occu c rarates, and compliance with the require ent to 4- evacuate the units in the Phase I evacuation. CD Section 2. If any section, provision, clause, phrase, or application of this Ordinance is held invalid or unconstitutional for any reason by any court of competent jurisdiction, the co remaining provision of this Ordinance shall be deemed severable therefrom and shall be 1 constructed as reasonable and necessary to achieve the lawful purposes of this Ordinance. r- Section 3. All Ordinances or parts of Ordinances of said City in conflict with the y 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. 3816 S.1.I Read and passed by the City Commission at a regular meeting held this 2ni-h day of November wwww....... 2018. Read and passed on final reading at a regular meeting held this 5th day of ......._................. . March ,20_ CL 0. Authenticated by the presiding officer and Clerk of the Commission on 6th day of March 2019 N Filed with the Clerk March 6th 2019 Mayor Teri Johnston Yes Commissioner Gregory Davila Yes Commissioner Mary Lou Hoover Yes Commissioner Sam Kauftnan Yes Vice Mayor Clayton Lopez Yes Commissioner Billy Wardlow Yes 2 0 Commissioner Jimmy Weekley Yes 0 k 1 V TE JO[MTON, MAYOR Co ATTEST: CD r CHERYL SMITH, CITY CLERK Page 5 of 5 Packet Pg. 3817 S.1.I F _ EXECUTIVE SUMMARY MY 0 ® Jim Scholl, City Manager CL Patrick ri t,Planning Director 0. 0 From: Vanessa Sellers, Planner II N 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 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 an effective date. 0 ACTION e purpose of this ordinance is to amend the City's Comprehensive Plan, adding Objective 1- W 1.17 and associated policies to Chapter 1, "Future Land Use Element." Objective 1-1.17 shall be knowne "Workforce-Affordable ous° tiative$' providing for an additional 300c, affordable allocations to an allocation pool to be identified as the "Affordable-Early vacuation fool." coBACKGROUND ' i ®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. 3818 REOUEST: The proposed text amendment to the Comprehensive Plan is as follows*: 0 OBJECTIVE 1-1.17: WORKFORCE-AFFORDABLE HOUSING INITIATIVE. To support the City of Kev West's workforce by alleviating constraints on affordable housing, the City shall participate in the Workforce-Affordable Housing,Initiative, as aLiproved d the June E 13,2018 meeting oft e Florida Administration Commission. The Workforce-Affordable Housin 0 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 cats nor to be known as the "Affordable - Early Evacuation Pool" which will provide 300 workforce- affordable building 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 1-1.16. The City shall be reVonsible for the management. distribution, and enforcement of gquirements associated with the EarlyEvaguation.Affordable allocations. The Cftv of Kev West all ensure adherence to these requirements throuUli iMplementation of the policies of this 0 objective. 2 0 4- Poliev 1-1.17.1: Distribution of Workforce-Affordable Housing Allocations. Workforce- _15 a. Affordable Housim-, allocations shall be available for allocation on a first-come first-served basis 0?: and distributed at any time following,L deguate gghligMfice and he grim, procedures 12 suant to CD -- _ Chapter 108 of the Citv's Land Development Regulations. In the event applications received ca exceed the allocations authorized herein,the cgm j,ieting ate)plications shall be ranked in accordance U) with the BPAS rankin4-, procedures infh=atilt er 108. Section 997 (q). CO Policy 1-1.17.2: Specific Standa ds and Reguirements for Workforce-Affordable Housing. Affordable-Early Evacuation residential is built under this program.shall: a. be multiple-familyr structures: 0 b. be rental units; g ....require, at a minimum, adherence to the latest edition of the Florida Building Code as published bv the Florida BuildLnc, Commission-, d, require on-site property management: e. p cgpply withap it or 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: E 9. ensure accessibility jqSm ployl-nent cent ers,and amenities, h. reouire deed-restrictions ensuring: .......... ------- Packet Pg. 38191 (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.,Mu ire ment could .2 result in severe pe nalties,,jncl�udin -eviction, to the resident: 0 Poliev 1-1.17.3: Evacuation extigptions. Persons lLvjLgin workforce-affordable housingwho CL are exempt from evacuation requirements of Policv 1-1.17.2.h.(ii) include first responders 0. correctional officers,healthcare professionals, or other first-res on der workers reguired to remain E 0 in the lower keys during an emerggncv evacuation,provided the versonclai gjqm�tion under this policy has faithfully certified their status with,propenv manage ment. Policy 1-1.17.4: ADA Compliance. All workforce-affordable housing developments must .2 demonstrate comLiliance with all_Nplicable_federal standards for accessibility for_p_ersons with disabilities. > Poligy 1-1.17.5: Evaluation apd Report. ,The City of Key West shall ide the state land planning, _a ecr wian annual report on the Lgogress �n�dim �Iementation of the Workforce- Affordable Housiu 1nitiative. Reported information shall include documentation oft e number of workforce-affordable is built, occuangy rates, and compliance with the requirement to 0 0) evacuate the units in the Phase I evacuation. 2 0 4- 0 *Coding:Added language is underlined; deleted language is stFmGk4ks9vSh at first reading. U) Citv Actions: co Planning Board: October 18,2018 (approved) City Commission: November 20,2018 (first reading) DEO (ORC—Objections, Recommendation,and Comments): TBA City Commission: March 5,2019 (second reading) 0 2 Planning Staff Analysis: The purpose of Chapter 90, Article VI, Division 3 of the Land Development Regulations (the "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 E 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. 3820 S.1.I 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. a. Consistency with the City's Strategic Plan,Vision,and Mission: The Strategic Plan is silent on this issue. N 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. 0 b. Financial Impact: There will be no cost to the City if this request is denied. 0 Recommendation: CD As per Resolution 2018-55, the Planning Board recommends the approval of the text amendment to the Comprehensive Plan. co CD LU z �n�. _.... - _�.�.w,�e __ ..m.._ .._.,,. .... a.dee................... ... Packet Pg. 3821 S.1.I ��,'�0 Search this site... t a')? 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About Us Name Cal Assistance Service Partnerships Information € Development A Services � Resources Center G 2017 State of Florida Deparbnent of Economic Opportunity .An equal opp.,Wnity empiaye,1pragram.F�uxiliary aids and servicee are available upon request to individuals vrlil7 disabfl Ail voice telephone numbers on Bris websife may be reached by persons wing TTYrrDD equipment via the Rerun Relay Sery LU Packet Pg. 3822 S.1.1 i City of Key West, FL City Hall - 1300 White Street Key West FL 33040 Action Minutes - Final „F Planning Board Thursday,October 18,2018 6:00 PM City Hall CL 0. U ADA Assistance: It is the policy of the City of Key West to comply with all requirements N 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. Call Meeting To Order 6:00 PM Pledge of Allegiance to the Flag c 2 Roll Call 0 Absent 1 - Pike o CD Present 6- Mr. Browning, Mr. Lloyd, Mr. Russo, Mr.Varela,Mr.Gilleran,and Chairman Holland U Approval of Agenda Co Old Business i 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 a 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. 3823 S.1.1 i 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 0 the construction of eight(8) non-transient 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 CL 0. West, Florida. 0 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 N 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 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. c A motion was made by Mr.Russo,seconded by Mr.Varela,that the Planning CD Resolution be Passed.The motion carried by the following vote: W CJ No: 2- Mr. Browning, and Mr. Lloyd CJ Absent: 1 - Mr. Pike 00 Yes: 4- Mr. Russo, Mr.Varela,Vice Chair Gilleran,and Chairman Holland i 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 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 90-395(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. 3824 S.1.1 i Banning Board Action Minutes-Final October 18,2018 Yes: 5- Mr. Browning, Mr. Lloyd, Mr. Russo, Mr.Varela,and Vice Chair Gilleran New Business 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 "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: o: 1 - Mr. Lloyd 0 Absent- 1 - Mr. Pike U Yes: 5- Mr. Browning, Mr. Russo, Mr.Varela,Vice Chair Cilleran,and Chairman olland 0 6 Text Amendment of the Land Development Regulations-A Resolution o CD the City of Key West Planning Boardrecommending an Ordinance to the W City Commission amending Chapter 108 of the Land Development 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 of 03 300 "Affordable-Early Ev cu ionPool" BPAS units; pursuant to Chapter , 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. 3825 S.1.1 i 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. CL 0. 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 CJ Certificate of Occupancy for this development the project at 3228 Flagler N 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 > 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 Development Regulations of the Code of Ordinances of the City of Key a, West. 0 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 CD 9 Variance-2800 Staples Avenue- (RE#00067000-000000)-A request for a variance to the maximum building coverage allowed in order to ca construct an accessory structure in the rear yard. The property is located within the Single Family(SF)zoning district pursuant to the Land 03 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 y 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 ram. 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. 3826 S.1.1 i 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 0 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. CL 0. 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 U Applicant,that the Applicant has demonstrated a"Good Neighbor Policy"and N 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 U M Chairman Holland > 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 / Simonton (HNC-1)zoning district pursuant to Sections 122-62 and 122-808 of the Land Development Regulations of the Code of Ordinances of the City of Key West, Florida. 0 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 122-52(C)have been met by the Applicant, W that the Applicant has demonstrated a"Good Neighbor Policy"and that the U Application be granted subject to the conditions set forth on the staff report. U The motion carried by the following vote: Absent: 1 - Mr. Pike 03 I Yes: 6- Mr. Browning, Mr. Lloyd, Mr. Russo, Mr.Varela,Vice Chair Gilleran,and 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. 3827 S.1.1 i 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 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 c the Historic Residential Commercial Core Duval Street Gulfside (HRCC-1)zoning district per the Land Development Regulations of the le Code of Ordinances of the City of Key West, Florida. A motion was made by Mr.Russo,seconded by Mr.Varela,that the Planning CD Resolution be Passed.The motion carried by the following vote: r� Absent: 1 - Mr. Pike Yes: 6- Mr. Browning, Mr. Lloyd, Mr. Russo, Mr.Varela,Vice Chair Gilleran,and Chairman Holland 03 - Public Comment W1 Reports Adjournment 9:09 PM City of Key Wes4 FL Page B Packet Pg. 3828 s;iun uopenoena Apea Buisnoy aoaojMjoM 00£) OZ'0£'L s;iun oena Alaea aOAOJMAOM 00£a4&uo suoi&oy A&unoo;o Aaewwn$g'xg:&uawLjoe&&y £ co s 6 o a w a U uJ mY Y� d � = o - C n .t:. E Gf y V E m Ni wl Y N t QC9 Q Q _ a . 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Q) Emm ? -0-0m05a0a a) i E aC° �a)Np ° oC Q)w 0pC am C>-r mU= L - a) mQ)ELL E i mn .YacCC)m mC'�. 3m m' _ 0 C mmNN O O U'C. m E 8 CC m o u 0' m E Q E - O O Q , 0, N o > r. O— c O c9ac9zcm oCmU m C C O (, a) O" N C o aO-E . m_ O Q) a m L C'O O Q) N C m 0-4-- 0 m m C E >o(D(Dmo 'a Q N C2.p O O w i9 m-O d.a) E E a)0 O Up C O E a>> Q)CD m O O a C U N m O m-C E N N C O N U m N m-p m a ac wcc 0 0 °C O m E o a m w �oU c j N m 0) S.1.rr 4 . 5 6 MONROE COUNTY, FLORIDA 7 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS 8 9 ORDINANCE NO. -2021 c 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 14 LAND USE ELEMENT AND THE HOUSING ELEMENT TO ESTABLISH 15 A NEW BUILDING PERMIT ALLOCATION CATEGORY TO ACCEPT c 16 AND AWARD 300 WORKFORCE HOUSING EARLY EVACUATION 17 UNIT BUILDING PERMIT ALLOCATIONS PURSUANT TO THE 18 WORKFORCE-AFFORDABLE HOUSING INITIATIVE (WORKFORCE 19 INITIATIVE) AUTHORIZED BY THE FLORIDA ADMINISTRATION 20 COMMISSION AND THE FLORIDA DEPARTMENT ECONOMIC 21 OPPORTUNITY BY AMENDING AS WELL AS CLARIFYING POLICIES 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 a 25 REQUIREMENTS; PROVIDING FOR SEVERABILITY; PROVIDING 26 FOR REPEAL OF CONFLICTING PROVISIONS; PROVIDING FOR 27 TRANSMITTAL TO THE STATE LAND PLANNING AGENCY AND THE 28 SECRETARY OF STATE; PROVIDING FOR AMENDMENT TO AND 2 29 INCORPORATION IN THE MONROE COUNTY COMPREHENSIVE 30 PLAN; PROVIDING FOR AN EFFECTIVE DATE. (FILE NO. 2020-067) 31 32 r9 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 35 health, safety, and welfare of the County's citizens; and 36 37 WHEREAS, Florida Statute § 380.0552., the Florida Keys Area protection and 38 designation as area of critical state concern, establishes the intent to"ensure that the population of W 39 the Florida Keys can be safely evacuated", Florida Statute § 380.0552(2)(j), and requires that 40 amendments to each local government's comprehensive plan to include "goals, objectives, and 41 policies" to protect public safety and welfare in the event of a natural disaster by maintaining a 42 hurricane evacuation clearance time for permanent residents of no more than 24 hours; and 43 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 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 20 File 2020-067 Packet Pg. 3835 S.1.rr 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 allocations ("ROGO 5 allocations") throughout the Florida Keys for rental workforce housing, with a condition that the 6 rental 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 0 12 13 WHEREAS,the Florida Keys face the quadruple impact of high land values, land limited 14 by geographic and environmental features,housing supply limited by controlled growth(including 0. 15 but not limited to the Rate of Growth Ordinance) and a tourism economy with a prevalence of E 16 lower paying service-sector employment; and �? 17 18 WHEREAS, the need to protect and preserve an adequate inventory of 19 affordable/workforce accessible housing is a continual as well as a growing challenge in the 20 Florida Keys,particularly after the impacts of Hurricane Irma which caused significant damage to 21 housing units throughout the Florida Keys; and 22 > 23 WHEREAS,on September 19,2018,the Monroe County Board of County Commissioners 24 ("BOCC", "Monroe County", or the "County") directed County staff to draft proposed policy 25 alternatives to the State's Keys Workforce Housing Initiative that address several concerns raised 26 related to the enforceability of the evacuation provisions; and 27 28 WHEREAS, on January 30, 2019, the BOCC considered options to accept the 300 units 29 but took no official action; and 0 30 31 WHEREAS, on January 22, 2020, the BOCC directed staff to prepare an agenda item to 32 discuss and provide direction on whether to direct staff to process Comprehensive Plan and Land 33 Development Code amendments to: 1) Move a portion of market-rate ROGO units to the 34 affordable housing allocation pool and/or 21 Accept the 300 Workforce Housing units offered by 35 the Department of Economic Opportunity required to evacuate in Phase 1 of the Hurricane 36 Evacuation model; and 37 38 WHEREAS, on February 19, 2020,the BOCC discussed whether to direct staff to process a 39 a comprehensive plan and land development code amendment to: L Move a portion of the 378 40 remaining Market Rate -Rate of Growth Ordinance(ROGO)units through 2026 to the Affordable 41 Housing allocation pool and/or 2) Accept the 300 Workforce Housing units offered by the DEO < 42 required to evacuate in Phase 1 of the hurricane evacuation model. The BOCC did not decide on 43 the potential shifting of market rate allocations to the affordable housing pool but did direct staff 44 to start the process to accept the 300 workforce housing units; and 45 46 WHEREAS, on July 15, 2020, during a discussion item on potentially shifting market rate 47 allocations to the affordable housing pool, the BOCC provided further direction to staff on Ordinance No. -2021 Page 2 of 20 File 2020-067 Packet Pg. 3836 S.1.rr I accepting the 300 workforce housing early evacuation unit building permit allocations. The BOCC 2 directed: Accept the 300 workforce housing early evacuation unit building permit allocations to 3 be used in exchange for existing affordable allocations at multifamily developments (for 4 developers that agree to the early evacuation restriction) and the affordable housing allocations 5 returned to the County (returned in the exchange)be set aside and banked for takings cases (bank 6 them within an administrative relief pool); and 7 8 WHEREAS, Monroe County policies and regulations adopted in the Monroe County 9 Comprehensive Plan and Land Development Code are to maintain public health, safety, and 10 welfare of the citizens of the Florida Keys and to strengthen our local government capability to 2 11 manage land use and development; and 0 12 13 WHEREAS,the Monroe County Development Review Committee("DRU)reviewed and 14 considered the proposed amendments at a regularly scheduled meeting held on the August 25, 0. 15 2020; and E 0 16 17 WHEREAS, at a regularly scheduled meeting held on October 28, 2020, the Monroe 18 County Planning Commission held a public hearing for the purpose of considering the proposed 19 amendment and provided for public comment; and 20 21 WHEREAS, the Monroe County Planning Commission adopted Resolution No. P29-201 22 recommending approval for the proposed amendment, with edits identified in the resolution for 23 Policies 101.2.2, 101.3.10 and 101.3.12; and 24 25 WHEREAS,the Monroe County Board of County Commissioners is authorized by Florida 26 Statute § 125.01(1)(h)., to establish, coordinate and enforce zoning and such business regulations 27 as are necessary for the protection of the public; and 28 2 29 WHEREAS, at a regularly scheduled meeting held on January 20, 2021, the Monroe 0 30 County Board of County Commissioners held a public hearing, considered the County's 0 31 professional staff report, and provided for public comment and public participation in accordance ?: 32 with the requirements of state law and the procedures adopted for public participation in the 33 planning process; and 34 35 WHEREAS,at the January 20,2021,public hearing,the Monroe County Board of County 36 Commissioners voted to transmit the proposed amendments to the Department of Economic 37 Opportunity to review the proposal, with a modification to Policy 101.3.12 to eliminate the 38 requirement for a development agreement; instead requiring a resolution approving a contract; and 39 40 WHEREAS, at the January 20, 2021, public hearing, the BOCC adopted Resolution No. 41 041-2021, transmitting the proposed text amendment to the State Land Planning Agency; and 42 43 WHEREAS, the State Land Planning Agency reviewed the amendment and issued an 44 Objections, Recommendations and Comments ("ORC")report, received by the County on March 45 30, 2021; and 46 Ordinance No. -2021 Page 3 of 20 File 2020-067 Packet Pg. 3837 S.1.rr I WHEREAS,the ORC report stated that"the Department [of Economic Opportunity] does 2 not identify any objections or comments to the proposed amendment"; and 3 4 WHEREAS, Monroe County has 180 days from the date of receipt of the ORC report to 5 adopt the proposed amendment, adopt the amendment with changes or not adopt the amendment; 6 and 7 8 WHEREAS, at a regularly scheduled meeting on April 21, 2021, the BOCC held a public 9 hearing to consider adoption of the proposed Comprehensive Plan text amendment; and 10 c 11 WHEREAS, Monroe County policies and regulations adopted in the Monroe County 0 12 Comprehensive Plan and Land Development Code are to maintain public health, safety, and 13 welfare of the citizens of the Florida Keys and to strengthen our local government capability to 14 manage land use and development; and 15 0 c 16 WHEREAS, based upon the documentation submitted and information provided in the 17 accompanying professional staff report, the Monroe County Board of County Commissioners 18 makes the following findings of fact and conclusions of law: 19 20 1. The proposed amendment is consistent with the Goals, Objectives and Policies of the 21 Monroe County Year 2030 Comprehensive Plan; and 22 2. The proposed amendment is consistent with the Principles for Guiding Development for 23 the Florida Keys Area of Critical State Concern, Florida Statute § 380.0552(7); and 24 3. The proposed amendment is consistent with Part 11 of Chapter 163, Florida Statutes. a 25 26 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY 27 COMMISSIONERS OF MONROE COUNTY, FLORIDA: c 28 2 29 Section 1. Recitals and Legislative Intent. The foregoing recitals and statements of 4- 30 legislative intent are true and correct and are hereby incorporated as if fully stated herein. 0 31 32 Section 2. The Monroe County Comprehensive Plan is hereby amended as follows: W 33 Proposed Amendment: deletions are stfi ke *h- additions are shown in underlined. 34 35 Objective 101.2 .. 36 As mandated by the State of Florida, pursuant to Section 380.0552, F.S. and Rule 28-20.140, 37 F.A.C., and to maintain the public health, safety, and welfare, Monroe County shall maintain E 38 a maximum hurricane evacuation clearance time of 24 hours and will coordinate with the State 39 Land Planning Agency relative to the 2012 Memorandum of Understanding that has been 40 adopted between the County and all the municipalities and the State agencies. 41 42 Policy 101.2.1 43 Monroe County shall maintain a memorandum of understanding with the State Land 44 Planning Agency, Division of Emergency Management, Marathon, Islamorada, Key 45 West, Key Colony Beach, and Layton to stipulate, based on professionally acceptable Ordinance No. -2021 Page 4 of 20 File 2020-067 Packet Pg. 3838 S.1.rr I data and analysis,the input variables and assumptions, including regional considerations, 2 for utilizing the Florida Division of Emergency Management's (DEM) Transportation 3 Interface for Modeling Evacuations ("TIME") Model to accurately depict evacuation 4 clearance times for the population of the Florida Keys. 5 6 Policy 101.2.2 7 Monroe County shall coordinate with all the municipalities, the State Land Planning 8 Agency and Division of Emergency Management to update the variables and assumptions 9 for the evacuation clearance time modeling and analyses of the build-out capacity of the 10 Florida Keys Area of Critical State Concern based upon the release of the decennial c 0. 11 Census data. Pursuant to the 2012 completed hurricane evacuation clearance time 0 12 modeling by the State Land Planning Agency, which incorporates the 2010 Census data, 13 the County may allocate 10 years' worth of growth (197 x 10 = 1,970 allocations, 197 CL 14 annual ROGO rate based on Rule 28-20.140, F.A.C.) through the year 2023, while a. 15 maintaining an evacuation clearance time of 24 hours. The Countywim14 adopted;a slower 0 16 rate of annual allocations for market rate development to extend the allocation timeframe 17 to 22 .3. without exceeding the total of 1,970 allocations (see Policy 101.3.2). The 18 County shall reevaluate the annual ROGO allocation rate based on: 1) statutory changes 19 for hurricane evacuation clearance time requirement standards; 2) new hurricane 20 evacuation modeling by the State Land Planning Agency and Division of Emergency 21 Management; and 3)a new or revised memorandum of understanding with the State Land 22 Planning Agency, Division of Emergency Management, Marathon, Islamorada, Key 23 West, Key Colony Beach and Layton (see Policy 101.2.1). 24 25 otwlthstanding the fore4oin4 anc1 pL�rsL��nt tt� Policies 101 e3e2. 101 .3 3 anc1 101 3e12. .. 26 M-onro- County---sha11 es-tablish a new allotcation camtegorv__mto---accept �ncl �1w�rc1 3f}f} c 27 workforce rce 11t u n !L1d evacu tion Unit building..perr It allocations.. L�rsL��nt..:tt� t1i 28 orkforce_ affordable ousin, lnitiative CN)licv__ . 1 3 12 " orkforce Initiative Ih� m _______________. 29 allocations are in addition.to the maxim urn allocations identified In Liles 28-20., ,A-C..A 30 and sha11_be re�nirecl tt> ev en e in P1r e I t>f`the 4 �1rr ev en ion of a )endini4 rna'or 0 31 hurricane, ?: CD 32 33 Policy 101.2.3 34 The County will consider capital improvements based upon the need for improved 35 hurricane evacuation clearance times. The County will coordinate with the FDOT, the 36 state agency which maintains U.S.1, to ensure transportation projects that improve 37 clearance times are prioritized. 38 m E 39 Policy 101.2.4 40 In the event of a pending major hurricane (Category 35) Monroe County shall 41 implement the following staged/phased evacuation procedures to achieve and maintain 42 an overall 24-hour hurricane evacuation clearance time for the resident population. 43 1. Approximately 48 hours in advance of tropical storm winds, a mandatory evacuation 44 of non-residents, visitors, recreational vehicles (RVs), travel trailers, live-aboard 45 vessels (transient and non-transient),affd military personnel and units__gpprc�vec�.:__a c 46 deed restrrcted_asmwt�rkft.)rc�e liouslnu early__evamcu_at on Units from the Florida Keys Ordinance No. -2021 Page 5 of 20 File 2020-067 Packet Pg. 3839 S.1.rr I shall be initiated. State parks and campgrounds should be closed at this time or sooner 2 and entry into the Florida Keys by non-residents should be strictly limited. 3 2. Approximately 36 hours in advance of tropical storm winds, a mandatory evacuation 4 of mobile home residents, special needs residents, and hospital and nursing home 5 patients from the Keys shall be initiated. 6 3. Approximately 30 hours in advance of tropical storm winds, a mandatory phased 7 evacuation of permanent residents by evacuation zone (described below) shall be 8 initiated. Existing evacuation zones are as follows: 9 a) Zone 1 -Key West, Stock Island and Key Haven to Boca Chica Bridge (MM 1-6) 10 b) Zone 2 - Boca Chica Bridge to West end of 7-mile Bridge (MM 6-40) c 11 c) Zone 3 - West end of 7-Mile Bridge to West end of Long Key Bridge (MM 40- c 12 63) 13 d)Zone 4 -West end of Long Key Bridge to CR 905 and CR 905A intersection(MM 14 63-106.5 and MM 1-9.5 of CR 905) 15 e) Zone 5 - 905A to, and including Ocean Reef(MM 106.5-126.5) 0 16 17 The actual sequence of the evacuation by zones will vary depending on the individual 18 storm. The concepts embodied in this staged evacuation procedures should be embodied 19 in the appropriate County operational Emergency Management Plans. 20 21 The evacuation plan shall be monitored and updated on an annual basis to reflect 22 increases, decreases and or shifts in population;particularly the resident and non-resident 23 populations. 24 25 For the purpose of implementing Policy 101.2.4,this Policy shall not increase the number 26 of allocations to more than 197 residential units a year, except for affordable housing. 27 Any increase in the number of allocations shall be for affordable housing..gn.o.e,_C.tIL C.Q.U.D. 28 l�erebv cce tsm3f}f}mwt�rkft�rce ( ff`t rtl�lblel housing early mevicuation unitbuiIdin & Derr It 29 all .c�t�t�ns pLirsuant tt>..:the ..orkforc�e Affordable..Fousln� fnitiative..(1'cillcv lf}le3el2 30 orkforce fnitia-t ve authorized bv__th-e Fl-orrda___A.dininistration Coninission and_ the, 31 Florida 3ep c2 ic ..Cpp� u n :. 32 Maximm fiedtirtc�nity 1lrese allc�ca �t�ns are in acichtit�n tc� the in Rules 28-20, p.�..C., shall be restricted �to rental � 33 oc cLpancv for those who derive at least 70% cif their inco ne as members cif the workforce � 34 in Monroe County and who rneet the affordable lious'm4 income categories ofthe Monroe 35 Coun.tV l.ancl 1 evelc> anent t>cfe. The a11c>ca it>ns shall be re aired to evacuate in Please � .... 36 I of the 48_hr evacuation_of`_a ential 37 dwellln r nit a11c>ca t>ns shall be aLrtlrc>riaecl within the Please I of`the 48-fir evacuation 38 Linlessmap rc vecI and VL.)vided by them mloridma dmministration C om ssion anmdmthe lorida m 39 f)ep.g111 nt ct�nci is C M.11ti1nity after review of`hurricane evacuation modeling results � 40 bV the State 1 antl I'lannln� <��encv_m�nt1 t1�e l)ivislt�n t�f f�nergyencv Mjn einent t�f` 41 available evacuit�on capacity and a review cif the level cif service and available ca�a,city 42 f`c>r all nriblic facilities. 43 44 Objective 101.3 45 Monroe County shall regulate new residential development based upon the finite carrying 46 capacity of the natural and man-made systems and the growth capacity while maintaining a 47 maximum hurricane evacuation clearance time of 24 hours. Ordinance No. -2021 Page 6 of 20 File 2020-067 Packet Pg. 3840 S.1.rr 1 2 Policy 101.3.1 3 Monroe County shall maintain a Permit Allocation System for new residential 4 development known as the Residential Rate of Growth Ordinance (ROGO) System. The 5 Permit Allocation System shall limit the number of permits issued for new residential 6 dwelling units. The ROGO allocation system shall apply within the unincorporated area 7 of the county, excluding areas within the county mainland and within the Ocean Reef 8 planned development (Future development in the Ocean Reef planned development is 9 based upon the December 2010 Ocean Reef Club Vested Development Rights Letter 10 recognized and issued by the Department of Community Affairs). New residential c 0. 11 dwelling units included in the ROGO allocation system include the following: affordable 0 12 housing units; market rate dwelling units; mobile homes; ftHd institutional residential 13 units (except hospital rooms)- tworkf`orce_1;�ousi_ng_g.411 evacuation Units- CL 14 0. 15 Vessels are expressly excluded from the allocation system, as the vessels do not occupy c 16 a distinct location, and therefore cannot be accounted for in the County's hurricane 17 evacuation model. Under no circumstances shall a vessel, including live-aboard vessels, 18 or associated wet slips be transferred upland or converted to a dwelling unit of any other 19 type. Vessels or associated wet slips are not considered ROGO allocation awards, and 20 may not be used as the basis for any type of ROGO exemption or THE(Transfer of ROGO 21 Exemption). 22 23 ROGO Allocations for rooms, hotel or motel; campground spaces; transient residential 24 units; and seasonal residential units are subject to Policy 101.3.5. a 25 26 Policy 101.3.2 27 The number of permits issued for residential dwelling units under the Rate of Growth 28 Ordinance shall not exceed a total of 1,970 new allocations for the time period of July 13, 29 2013 through July 12,2026,plus any available unused ROGO allocations from a previous 0 30 ROGO year and 300 workforce housrn�earlvevamcuation� �tbuilclinZ perr i�t allc>ca ions 0 _______ ______ ____ mm 31 autborizec the De a tr ent; CD 32 Econor ic°_C3 .c.)rtunity. A ROGO year means the twelve-month period beginning on July W 33 13. Market rate allocations shall not to exceed 126 residential units per year. Unused 34 allocations for market rate shall be available for Administrative Relief. 35 36 In 2012, pursuant to Rule 28-20.140, F.A.C., the Department of Economic Opportunity 37 completed the hurricane evacuation clearance time modeling task and found that with 10 38 years' worth of building permits, the Florida Keys would be at a 24 hour evacuation E 39 clearance time. This creates challenges for State of Florida and Monroe County as there 40 are 8,168 privately owned vacant parcels [3,979 Tier I; 393 Tier 11, 260 Tier III-A (SPA); 41 3,301 Tier III, and 235 No tier (ORCA, etc.)] and with 1,970 new allocations this may 42 result in a balance of 6,198 privately held vacant parcels at risk of not obtaining permits 43 in the future. In recognition of the possibility that the inventory of vacant parcels exceeds 44 the total number of allocations which the State will allow the County to award,the County 45 ado tooa slower rate of`annual allocations for market devel � .. .. :.. . .. .. tent.:tlle 46 allocation tirnefrarnme�to 2026 and is accg.RLn� 300 workforce (affordable} housing early. m____ ____ _______ __m 47 evac.ra ic>n unit bWldin vermit allocations Vursuant to the Workforce-Affordable Ordinance No. -2021 Page 7 of 20 File 2020-067 Packet Pg. 3841 I Housin&, Initiative Policy...1p.j..3,12 Workforce fnitiative authorized b the Florida ............................ ......... ................................................................................................................... 2 A.-di-n-in-i-s-tra-ti-on--C-oi-n-i-n-i-s-si-on---an-d---th-e-l-lori-da-12.g jjjese 3 workforce housing to the maxima ............................................................................ 4 bui-1-din The Countv--will consider 5 adopting an extended timeframe for distribution of the ROGO allocations through 2033 6 with committed financial support from its State and Federal partners. This timeframe can 7 provide a safety net to the County and provide additional time to implement land 8 acquisition and other strategies to reduce the demand for ROGO allocations and help 9 transition land into public ownership. . 10 2 11 The County is actively engaged in acquisitions and is requesting its State and Federal 0 'a 12 partners for assistance with implementing land acquisitions in Monroe County. The 13 County will allocate the 1,970 new dwelling unit allocations throu_qj'j..jjjjy_12._2026 ............ ...................... CL 14 If substantial financial support is provided by July 12, 241g2f 23 0. 15 the County will reevaluate the ROGO distribution allocation schedule and consider E an 0 16 extended timeframe for the distribution of market rate allocations (through a 17 comprehensive plan amendment). Further,the State and County shall develop a mutually .2 18 agreeable position defending inverse condemnation cases and Bert J. Harris, Jr. Private 19 Property Rights Protection Act cases, with the State having an active role both directly 20 and financially in the defense of such cases. 21 22 The County shall distribute ROGO allocations by ROGO year, as provided in the table 23 below. 24 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 4— July 13, 2015—July 12, 2016 126 0 July 13, 2016—July 12, 2017 126 NZA July 13, 2017—July 12, 2018 126 July 13, 2018—July 12, 2019 126 July 13, 2019—July 12, 2020 126 568 total AFH '20'0 July 13, 2020—July 12, 2021 64 (total available July 13, 2021—July 12, 2022 64 immediately) E July 13, 2022—July 12, 2023 64 July 13, 2023—July 12, 2024 62 3.9.0! July 13, 2024—July 12, 2025 62 July 13, 2025—July 12, 2026 62 1 TOTAL 1,260 710* 1 3-09! *Includes two annual affordable ROGO allocations for the Big Pine Key/No Name Key subarea) through the Incidental Take Permit(ITP) ending in 2023. Ordinance No. -2021 Page 8 of 20 File 2020-067 Packet Pg. 3842 Workforce hOLISirIV carly evaCUatlorl UrIlt allocations shall be available COL rl -wide rated ....................................................................................... ..................................................................................................................................................................................................................................................................................................................................................... ..................i ty.............................. -U�� nests for dwellint!units c.d .r..e..s...t...r....i..c.....te....d.........L..i...t.'.1i jjjj� the eyorkforce housiri�gearly at.i..Orl......U.....r..l'.t......a.I...I..o.....c..a.t'or s arc s Palicy 101.3.12. 2 The State of Florida, pursuant to Administration Commission Rules, may modify the 3 annual allocation rate. Monroe County will request a Rule change from the 4 Administration Commission to authorize the above allocation timeframe and rate. 5 6 .2 7 0 8 Policy 101.3.3 9 Monroe County shall allocate at least 20% of the annual allocation, or as may be 10 established by the State of Florida, pursuant to Administration Commission Rules, to CL 0. 11 affordable housing units as part of ROGO. Any portion of the allocations not used for E 0 12 affordable housing shall be retained and be made available for affordable housing from 13 ROGO year to ROGO year. Affordable housing eligible for this separate allocation and'- ' U) 14 workforce ho si ..............................................................u n&.��IE!y evacuation units shall meet the criteria specified in Policy 15 601.1.4 and the Land Development Code, but shall not be subject to the competitive 16 Residential Permit Allocation and Point System in Policy 101.6.4. Any parcel proposed .2 17 for affordable housing or workforce_],iousi , earbv evacuation units shall not be located ------- D.6....................................... 18 within an area designated as Tier I as set forth under Goal 105 or within a Tier 111-A > 19 Special Protection Area as set forth in Policy 205.1.1. 20 21 Notwithstanding the foregoing, and notwithstanding Policy 101.6.2. affordable housing CD 22 ROGO allocations may be awarded to Tier I or Tier 111-A properties which meet all of 23 the following criteria: 0 24 1. The property contains an existing market rate dwelling unit that meets the criteria in 25 LDC Section 138-22(a) and is determined to be exempt from ROGO; 0 26 2. The proposed replacement affordable dwelling unit meets current Florida Building 0 27 Code and is not a mobile home; ?: 28 3. The proposed replacement dwelling unit shall be deed restricted for a period of at least 29 99 years as affordable housing pursuant to the standards of the Land Development 30 Code; and 31 4. The proposed site plan for the replacement affordable dwelling unit does not propose 32 any additional clearing of habitat. 33 0 34 Policy 101.3.4 35 The Permit Allocation System (or Rate of Growth Ordinance) for new residential E 36 development shall specify procedures for: 37 1. establishing the annual number of permits for new residential units to be issued during < 38 the next ROGO year based upon, but not limited to the following: 39 a. expired allocations and building permits in previous year; 40 b. allocations available, but not allocated in previous year; 41 c. number of allocations borrowed from future quarters; 42 d. vested allocations; 43 e. modifications required or provided by Administration Commission Rules; Ordinance No. -2021 Page 9 of 20 File 2020-067 Packet Pg. 3843 S.1.rr I f. modifications required or provided by this plan or agreement pursuant to Chapter 2 380, Florida Statutes; and 3 g. receipt or transfer of affordable housing allocations by intergovernmental 4 agreement; and 5 h. receipt or transfer of allocations pursuant to the 2012 Hurricane Evacuation 6 Clearance Time Memorandum of Understanding. 7 2. allocation of affordable housing, workforce housing early evacuation units and market 8 rate housing units in accordance with Polici�sy If Im3m2__antjm_101.3.3; and 9 3. timing of the acceptance of applications, evaluation and scoring of applications, and 10 issuance of permits for new residential development during the calendar year. 0. 11 c 12 Policy 101.3.5 13 Due to the limited number of allocations and the State's requirement that the County CL 14 maintain a maximum hurricane evacuation clearance time of 24 hours, Monroe County a. 15 shall prohibit new transient residential allocations for hotel or motel rooms, campground 0 16 spaces, or spaces for parking a recreational vehicle or travel trailer until May 2022. 17 Lawfully established transient units shall be entitled to one unit for each type of unit in 18 existence before January 4, 1996 for use as a ROGO exemption. (Ord. No. 024-2011) 19 20 Policy 101.3.6 21 All public and institutional uses (except hospital rooms) that predominately serve the 22 County's non-transient population and which house temporary residents shall be subject 23 to the Permit Allocation System for residential development, except upon factual 24 demonstration that such transient occupancy is of such a nature so as not to adversely a 25 impact the hurricane evacuation clearance time of Monroe County. 26 27 c 28 2 29 Policy 101.3.9 0 30 For those ROGO applications and properties which have not received a ROGO award for 2- 31 four consecutive years and have applied for administrative relief, which are designated ?: 32 Tier I, II, or IIIA, the County or the State shall offer to purchase the property if funding 33 for such is available. Refusal of the purchase offer shall not be grounds for granting a 34 ROGO award. 35 36 Policy 101.3.10 37 Notwithstanding any other provision of the Plan., exc t the last sentence ofhs 0 38 101I,3elf�, bnilcling I4 4 ' 0 allocations utilized for affordable housing projects may be 39 pooled and transferred between ROGO sub-areas, excluding the Big Pine/No Name Keys 40 ROGO subarea, and between local government jurisdictions within the Florida Keys Area 41 of Critical State Concern (ACSC). Any such transfer of'_affmt>rd-able Ii-o tsini4 allocations C 42 between local government jurisdictions must be accomplished through an interlocal 43 agreement between the sending and receiving local governments. nterloc_aImagreernents 44 that involve ssigjjatic osford le ho sina(not inclding. orc� lc 1gsin� 45 allocations banked for mt l�ln s cased allocations tot eais_tingo JlVellrt f 1117its Within ci 46 �2ZL dcrrl ulrt wltl� re Lire ent that the associated market rate RmC3C�C3%IMP exemptions 47 be transferred into the unincorp )r �12 LxLa ated Courtv__as � Lge for the affordable housing Ordinance No. -2021 Page 10 of 20 File 2020-067 Packet Pg. 3844 I allocations transferred to.le...rnu i i lLtY� shall be acc i lislied throu .................................................................................................................. ...b .............................. 2 conditional us anal shall be -------------------------------e-RLT mit a)��roval a------------------------------------------�.L�b iect tt>the receiver site criteria in 1't>licv 3 -1 0 orated Countv, In no 4 event shall the County i2d transfer workforce ho arlv evacuation unit ------------------------------------------------ -.1 -- -- -- --------------------U�11-) eam------------------------------------- 5 allocations between ROGo ...sub-area.s., transfer workforce housing early evacucTtion allocations................................................................................................................................................................. 6 Lini-t.--al-l.o c--.a-t-i.on-s-.-.--to--an-oth-er-. r .. ..... ....... .. ... .. ..... .. ,. ,sin4 early. 7 eyac.uA0on..Unitbudd..M allocations fron another govemJnen�ju.risdi.ction .or.(41trcnsfer 8 affordabfeliousing ROGO allocations received bv the.Li.�lIaLv_i-n--exc-li-an�e for workforce 9 lilt u ini eal.lV evacLnatit n Unit allocations to anothe t '.............................urisdiction, ..................... .2 10 11 0 12 Policy 101.3.11 13 Monroe County may receive additional building permit allocations pursuant to the 2012 CL 14 completed hurricane evacuation clearance time modeling and allocation 0. 15 recommendations by the State Land Planning Agency and the Administration E 0 16 Commission's direction that the City of Key West wE.*44 transfer annually (by July 15th) 17 any remaining unused allocations for that year to the other Florida Keys' local 18 governments based upon the local governments' ratio of vacant land. Any transferred 19 allocations from the City of Key West to Monroe County shall be made available for .2 20 Administrative Relief. Monroe Co V rn end award 300 building --- LILL-------L�y--receive., a . rrnyt ------------------------------------------------------- ---- 21 allocations d�gsisy ated as workforce housin ...................................................... ----- ......................................... ........................... 22 'A,'-orkf(.)r-ce--A.ff(.)rd-ab-le----Ho-u-s-ina_fnitiative_(Policv..j_ql-,3-j-2 k ----"`or -ft)rc e---Initiative- as )---- 23 p yide.d. by the Florida Administration Commission and the Florida D—I-trnent Econ-o-rn-i-c_()ppc.)rtLinitv_-I'Iie-s-e-al-i-oca-ti-ons--tli-a-t-a-r-e-i-n--add-ition--t-o--tli-e-i-n-ax-i-i-n-u-i-n--a-ll-o-ca-ti-ons 25 identified in Rules..28-20., F,A.,C,., and shall be required to evacuate in Phase I offtine ,4486- ............................................................................... ....................................................................................................................... _qj 26 fir evacuation ofa oendin -------------------------------- 0 27 28 Policv 101.3.12 2 0 29 Workforce Initiative. To-s_upport Monroe Coun s workforce all z constraints 4- --------------------------------------------------------- ---------------------------- ------------------------- 30 on affordable 1i lits and address ential liabili 0 ----------------------------tL. 31 the County is in the " orkforce-AfTordable Housing initiative............-................. CD 32 JfLi-ti-ativej.-, -as approved durim4 the June 13., 2018 rneetim4 of the Florida Administration 33 Commission, Monroe County accepts the 300 workforce housing early evacuation ................................................................................................................................... ..................... — 34 bLniltfl t allocation uant to the___ Housing initiative 35 authorized the Florida Department .............................................. ...................................... 36 Ec�.jn 11ni ---0 rtunrty, The " orkforce-Affordable Housim4 fnitiative J11 r—,jr-� -.!� ----pp�.) -------------------------------------------------------------------------------------- 0 37 d ell' constructed and"or deed restricted with workforce housing early .......... 38 evacuation buildin se I of' the 48-lir E 39 evacuation of'.ap n E.1,1111ricane. pursuant to the criteria below, evacuation ...... ......................... 40 41 T e in the " orkforce fnitiative. Monroe County shall b nsible for the P.4iits�B.2�11........................................................................................... ............................................................. 42 rn-anL� distribution irernents associated with the 43 w.Qrkf'o. 1c e.....I.I.Q.U.s.i.M4 early evacuation buildinu t3errnit allocations, Monroe County shall 44 ensure adherence to these-L��q ------1 1 is th -0--LiRh irnkt�Lj-nentatton of' th )Iicv -�i2ij shal I -------------------------------------------------------- t � mtl annually provide to the Fl orida.Department Econornic..Op r tart indicating ... -p ......................................................................................................................................................................................................Economic .......units.46 number of' workforce housing early...��Lqcuatton units built and/or deed restricted., ---------------------------------------------------------------------------------- 47 ticc Lnparlcv rates and c ................... Ra nce Iiance with the.r cilurerne. the units in Phase f of' ................... ................................................................2� nt to evacuate the units in Please I of Ordinance No. -2021 Page 11 of 20 File 2020-067 Packet Pg. 3845 I an evacuation, The annual report shall to the State in a tirnely.j ginner sL�c1� ............................................................................................................................................................................... 2 that the State mav include the inforrnationjn_thj�_r t�red Annual Report toythe G.jovernor ------------------------------------------------------------------------------------------ -------------------------------- 3 and Cabinet on the Coun 'sp .............................................................................................................ly..... �Tq_L I.e. ti.on. .....of............... .......its .................... �qrsqq.nt 4 to Rule 28-20,F,A.,C, ---------------- 5 6 Dwelling_LnjjLA�j�ij -�i2d`or deed restricted utilizing the worl<f(.)rce housin" early �)wellin Units L --/--------------------------------------------------------- 7 e.y.a.c..u.A.0 o.n.....u.D.J.1-4.1 I.Q.c.-atioD s....ale-subj�jo the following: .......... ................................................................. 8 9 (a) Re allocations shall be available .2 10 only f(.)r a I f(.)r Lexcham4e f'or afTordable allocations,,"exei-nntions and-requi're a -- -- ------ --- - - - - --- - --- 0. 11 reservation via BOCC resolution, The BOCC may., at its discretion., vlace 0 ............................................................................................................................................................................................................................................ ...................................................................... 12 conditions on anv reservation as it__de_ei-ns...Lij2RL.) 'fie BBC-------------------------------------I--------------------------------------- priate, The BQCC may.-a-t---i ts- 13 discretion,.exc a reserved aff(.)rdable allocations f(.)r allocations under ......................................... ...............b !I'4e-ex'�Mu........................................................................................................................................................................................................................................... CL 14 the Worki"orce fnitiat' private level( went and ncn rtrfit -secttrr arrtners . 15 W.illim4 to meet the reclurrements of' the workf(.)rce liousing.ea.fly evacuation unyt E ....... early. 0 'na 16 allocations, Further., the BOCC i s aRRL exchange of approve the exch, 17 e istin ff(.)rdable exemptions) at .................. 18 exisii-m4 ............... ....... inu-ltif'ai.nilV-r-esi-.d...-en ti-al--dev.....e. loDin- e nts f(.)r allocations under Workiorce 19 fnitiativ tPny�� e elo e t an ntrnp . necrthe 0 20 L�Lquirernents of'the workf( housing)rchousingearlv evacuation unit allocations, 21 ntv in exchan e f(.)r workf(.)rce 22 housim4 early evac ua-ti-on--unital I-oca-ti-on s--sh a-1-1--be--ban-ked--an-d--use-d--f'(.)r-f'LI ture. 23 a..d.I-.nJ.W s1l.a.ti.y.e. relief`. inverse 24 condernnation cases and Bert J, Harris., Jr, Private Prop��qy-.Eju IYts Protection 25 Act cases, ...................... 26 To maintain consistencv with Rule 28-20,1 - --- - --- _40,2)(b)., F,A.,C,., the affordable 0 27 allocations 28 and shall also b returned to -ori6nal affordable housinu catei4ory ----------------------- e--------------- ---------- --Lm 2 0 29 lowl"lowl"Median income vs, moderate incorne.p .01), 4- ............... ...................................................................................................................................................................... 30 �)_]'h-e--workf()rce liousjjjg� early_��La-cua-n-on--unit all-oca-ti-ons--i-nust-b-e--u-til-ized-brief 0 31 on the origin& yed aff(.)rdable.liousi'ngin�g���a lesser income ?: ...................................... .................................................................................. CD 32 categorK,. the C� 33 (4) Administrative relief'i-neans actions taken tj ourrty�gyratytin ..............................................................................................�3� ��T�tlie owner (.)�f 34 real _pL.)2ertK_.Lglief' from the continued sipplication of the Rate of Growth 35 Qrdin�j established in ...................... 36 the__Corn Plan and L,and Devek) ----------------- 0 37 (5) Beneficial use means the use Of' r .......................................................................................................................................PLO 38 or rofit in the exercise of'a basi r4fl'it For the i)u purpose of'thi s--()-I ,-b--,—C-p-r-()p—ertV----- urposeofthisp�jticv., j) _ E 39 berieficial use slial I mean the minimum use of I�tliU . necessary to avoid.jgp�gjjy ......................................................................................................................................................................................................................... 40 the f ndim4 of'a rei4ul m4 under current land use case law, i 11 T 0I—CI -TUI cTtorK-L�LL- 41 (b) njg..S onstruction of.dwelling ent or the deed restriction of' ................................................................................................... ................................................................................................................................... CC 42 early----evacuation-----unit 43 allocations shall..re roval of'a resoludo r vin a contract between the -1)p ...................i n....-PP-11-- .................................................... ........................................................................... a 44 BOC-C----an-Lt---tli�L---applicanyt to officially---e-x.!JI�qn-i4e the allocations and confirm 45 c° jj Nance with the requirements Worki"orce initiative within this Policv. ............................................................................. 46 (c) _A.jj_:EQrkf()rce housing earh _eL�L�uation units re_qLiire a deed restriction ensun L ------------------------------- 12.6- 47 (1) 13.�gfore any buildin ortion.or.p�p .............................. ..................................... Ordinance No. -2021 Page 12 of 20 File 2020-067 Packet Pg. 3846 Irestrictive covenant shall be 2 Director and 3 Office of' the-Clerk of' the Coun ision of' ............................................................................................................................................ ............................... 4 tli-i-s--section--ru-nni-n.i4 in favor of the C,(.)Lirytv_a-nd--en-f'(.)rc-eab-l-e-.LV--tlie--C-o-un-t.v and., 5 i licable. a artici cyting c I ty, jTie followim4 recLuirernents shall �p .............................p.................p milni !P.51 i . ....... .. 6 ijjplyto these restrictive covenants_ 7 ae Ille c.o.y.e. .R.q.Rts...for any w(.)rl<f(.)rce housing early evacuation units shall be ........................ 8 effec-ti-ve-f'(.)r-99--v-ear-s-,- 9 b, The covenants shall not commence ru n n until a certificate of'occu a c n The.......................................................................................................................................................... 0 10 has been issued by the_B ildi , Official for the dwelling unit or dwelling 11 units to which the covenant or covenants a 0 units �...��� 12 c 1 ter ex stin4 dwellim4 units that are deed-restricted as workf(.)rce housin 13 early evacuation covenants shall commence running...11J.).�.1 early .......................................................................................................................................................................... CL 14 recordation--i-n--the--Official--R-ec-ords--of'--Mon-ro-e-Coon-tv,- 0. 15 housim4 ear l E .........��evac�uation�unyts 0 16 to be restricted to--r-en-ta-Locc.11psincy f(.)r those who derive at least 70% of" their to be income as members of' the workf(.)rce in Monroe Co nty and who meet the ................................................................................................................................................................................................................................ 18 affordable liousim4 income cateiwries of' the Monroe County Land ---------------- 19 Develop .............................. jaeMt...Ci�de...........J.'.11.e o.c-c-LIP-a-g-ts ire to annually verify their ......... ...... ..... .2 20 e1]2ploy_tjjeL( qLt in orn el Tibilrty, _.�L� ------�j-------�L-----jg 21 cuate in Phase I of' the 48-fir 22 ev-ac-uati-on---of'---a-- workf(.)rce 23 b...o.u..s.ing _early evacuation units who may be exempted-jj2nLe�vacua ion 24 L....e.q. u....-.i...r....e...rn..-en....ts--are--I-im--ted-------t----o--------I- -aw--enf(.)r-cern.-en t.,--correc-tional--an-d--fi-re_2gLst�nnel, 25 health care p 1H DgI and ublic nn!gyees with emergency�nagement 26 Les2L)nsibilities, ff_tliere is an occul -q indicates their loyjjj��Et is jqj2j...�II.E�-------------------------------------ern considered a�First-re pgjj�j�p.E.pg5ition' and not included in the list orexernp 0 s qlgll� considered .................................................................................................................................................................................. 28 above., then the-Plannin he 2 29 remain during an 0 4- P iHi i le 30 erne enc,��,--Anv person clairni n under d shall submit-�L 0 31 of an affidavit of the onsite ?: ........................................................................... CD 32 pLgp,ejrtKjng ement- 33 ejaents which contain a sepqjgj�j ................................................................................................................ 34 disclosure reaurrim4 rental occu ants to acknowlech4e the existim4 restrictive - - -- -- ----------- 35 covenant on the in Phase I of the 48-fir ti on ..........................................................................11flil 36 and that f,iilure to adhere to the Phase I eva_cua_ti_on_re,_quirement could result in 0 37 severe_p�gn�jjjiesjnclu gn di -P t ............... ............ ............................... ............ 38 The covenants Lfi)---- ----- - - -----s_hsqlj----require on�syte ��.LgMrtK a E 39 ainimy in evacuation 40 rticeclLLres and an ack----------------------nowledgement that failure to adhere to the Phase I --------------- ------ 41 ev.a.c!!� -1_irenert could result in severe penalties. includim4 termination, 42 (d) �`orl�ft)rce housing early evacuation units shall be restricted to rental occ ncv - -- - L�---------------------------------------------------------------------------------------------------------------Llpq-----— 43 f(.)r those who derive at least 70% of` income as members of"the . workforce in ........................................................................................................................................................................................................................................................................................................... ............................... 44 M-on-ro-e--C-o-untv---and---wh-o---i-n-eet--- income categories of the 45 M..o.n r.Q.e....0 0..Untv [..and Develo0ment Code, 'A,orkf(.)rce means individuals or families 46 who are_gainfully__��jDpkmet t7V who__ 47 residents....o.r....vise to.r...s.., Ordinance No. -2021 Page 13 of 20 File 2020-067 Packet Pg. 3847 I (e) M,orkf(.)rce housing early evacuation units shall require onsite ..12Eg�erty .............................................. .............................................................................................................................................................q.............................. 2 rn-an 3 19.1 am!i ation. Durim4 t.r.a.d.i.t.i.o.n..a.J. ............................ 4 wor D ours.�ki ILl'i , the must be at an office within the workforce 5 lio!ts.in.-q.e.. r..lv evacuation unit develc�p e.CIT Outside the traditional 6 w_orlijD&_h()urs. the 2ropertK_jEan-ager must be available at all tunes to res ond to 7 e,vacu nor de,r,s`o 8 (f) 1!Ie entity_ �j _LtIL or--k--fo-r--c-e----o s--!m-- eariv --e---v--a-c---u--a-t-i--o--n---u-n-i--t-s 9 -- silat) be--r.e. .2 10 _rates of units., and mtenmanmt 11 liance with the re uirernent to evacuate the units in Phase f of`an evacuation.. 0 .....................................12 includim4 the number of' occupants that are __exellipl f (mi the evacuation ----------------- ------------------------------- --------- 13 r.equr iernents, Thro e p stsubmitar ortto the Planningy-----------p-- .eI 14 and Environmental Resources D rtment bv Mav I of each vear, Further. each - --- - - - -- --Resources-- Ulq - - -- ------ ------------------------ 15 lease and tbis annual report sliall be fie E ................................................................................................P............................ -p 0 16 fmt>r lnms act t»mbv--th---e-C---o---u- t-y--d---uriDg_traditional working hours, U --- U) 17 (g) M,orkf(.)rce housinearly evacL atit n Units s1�a11 be It catecl within an area tlesi natetl ........................................................................ 18 as Tier f f f-, 19 (h) Workforce.1iousin e V-Zone or ...................................................... 0 20 within a Coastal Barrier Resource_S ern ---------------------------------------------------------------------------System E5 21 (i) M,orkf(.)rce liousing_���������Egpg�qywiicli has ....................................22 all----infras-truveture----a v-a i-I a-b-I e--- and 23 dis osal wastewater rneetim4 P .. ............................................................................. -p d S ad 24 i4 early _E�glkforc-e--h-o-u-s-in. --e-vacua-ti-on--u-n-its---i-yi-u-st--dei-yi-o-n-s-tra-te--c-oi-nplicince with 25 ajj�qpp f(.)I a I te.1icable federal standards for accessibilit arsons with di.s bij i s.(,A.F),A. ........................................................................................................................................................................... ...................................................................................... 26 CLIIi2pji�ance 0 27 (k) p I rneirt utilizing w(.)rl<f(.)rce housing early. 't .Eqg..6 Ca..b...g-adevel()p.. 28 ev-ac-uati-on----uni-t----al-locati-on-s----sh-a I I...incolp )rcTte sustainable and resilient design -- ---------- 2 29 p U 0 agi les into the overall site design and be accessible-to.em ovi-nent centers in 4- P.- ................................................................................. .......... ...........................30 Key--'A,'-es-t.,--S-Lock--f-s-la-nd--and--Mara-ttion-, 0 31 32 GOAL 601 33 Monroe County shall adopt programs and policies to facilitate access by residents to adequate and 34 affordable housing that is safe, decent, and structurally sound, and that meets the needs of the 35 population based on type, tenure characteristics, unit size and individual preferences. 36 0 37 Objective 601.1 38 To ensure that of 1iousim4 o ortunities are available throm4l'i out the entire nmLrnity E 39 and to maintain a balanced and sustainable local econorny-jnd-jh�g���� ........................................................................................................................................................................................................................................................................ 40 services., Monroe County shall implement the following defined policies to reduce estimated 41 affordable housing need for i't's...w,ork,fo,r,c,e"a,n,d households in the very low, low, median and 42 moderate income classifications. 43 44 Policy 601.1.1 45 Monroe County shall maintain land development regulations, in conjunction with the 46 Permit Allocation System, for apportioning future affordable housing development sin 47 a apaa-si,. Ordinance No. -2021 Page 14 of 20 File 2020-067 Packet Pg. 3848 S.1.rr 1 2 Policy 601.1.2 3 Monroe County shall continue_._ � its participation in Federal and State housing 4 assistance programs to rehabilitate owner and rental housing for very low, low, median, 5 and moderate income residents by seeking grants, loans, and technical assistance in 6 conjunction with the Monroe County Housing Authority -"-47 2424-. 7 8 Policy 601.1.3 9 The Monroe County Land Authority shall maintain a list of buildable properties owned 10 or targeted for acquisition by the Land Authority which potentially could be donated or 0. 11 made available for affordable housing. This list will be updated annually and made 0 12 available to the public. The guidelines established in Policies 601.1.10 and 601.1.11 shall 13 be considered in the formulation of this list. CL 14 0. 15 Policy 601.1.4 c 16 All affordable housing projects which receive development benefits from Monroe 17 County, including but not limited to ROGO allocation award(s) reserved for affordable 18 housing, maximum net density, or donations of land, shall be required to maintain the 19 project as affordable for a period of 99 years pursuant to deed restrictions or other 20 mechanisms specified in the Land Development Code, and administered by Monroe 21 County or the Monroe County Housing Authority. 22 23 Policy 601.1.5 24 If Monroe County funding or County-donated land is to be used for any affordable a 25 housing project, alternative sites shall be assessed according to the following guidelines: 26 1. The location of endangered species habitat. Sites within known, probable, or 27 potentially suitable threatened or endangered species habitat shall be avoided. 28 2. The environmental sensitivity of the vegetative habitat. The habitat sensitivity shall 29 be determined according to the ranking specified in the Environmental Design 0 30 Criteria section of the Land Development Code. Disturbed sites shall be selected, 0 31 unless no feasible alternative is available. 32 3. Sites located within V-Zones, on offshore islands, or within CBRS units shall be 33 avoided. a, 34 4. The level of service provided in the vicinity for all public facilities. Areas which are 35 at or near capacity for one or more public facility should be avoided. 36 5. Proximity to employment and retail centers. Sites within five miles of employment 37 and retail centers shall be preferred. 38 m E 39 Policy 601.1.6 40 Monroe County shall identify funding sources that could be made available to support 41 community-based non-profit organizations such as Habitat for Humanity in their efforts 42 to provide adequate affordable housing. 43 44 Policy 601.1.7 45 Monroe County shall continue to participate in the State Housing Incentives Partnership 46 program as specified in the 1992 William Sadowski Affordable Housing Act. Monroe 47 County shall also continue to maintain a Local Housing Assistance Plan and Affordable Ordinance No. -2021 Page 15 of 20 File 2020-067 Packet Pg. 3849 S.1.rr I Housing Incentive Strategies as specified in the Act and recommended by the Monroe 2 County Affordable Housing Advisory Committee. 3 4 Policy 601.1.8 5 Monroe County shall allocate at least 20% of the annual ROGO allocation, or as may be 6 established by the State of Florida, pursuant to Administration Commission Rules, to 7 affordable housing units, as specified in Policy 101.3.3. Affordable housing eligible for 8 this separate allocation must meet the criteria established in the Land Development Code. 9 MQ.nrt c� Ct Linty n v w rcf 300 additional building en-nit alloc°atit�ns clesl�natecl as � 10 workf t.)rc e tiousin e irlvmevac uation Units L�Lsll-nt tt� the Rio orkf t.)rc e_A.f f t.)rdable FIt�L�sinU 0. 11 nitiative 1'tlicv lf}le3el2 `t�rl f`trce Initiative as rovidecfmmmmmbv the Florida . Administration Commission and themFlorida 12e��rtr ent F c t�nt�� is C3 c�rtL�nity 1ml�ese 13 allocations are in addition to the maxim urn allocations identified In Liles 28-20 F A C...A CL 14 are restricted to rental occL ancv ft.)r tti-osemwlio derivemat_least_70%-- f their incoine__as 0. 15 members of the workforce in Monroe C ounty end who meet mthe affordable housing c 16 inc t1 e c ate tries of the Monroe C aunty l_ancl 1)evel_(, )rnent Code., and sha11 be reclL�irecf 17 to evacuate In Phase l of the �:8-fir evacuation of.a.pendijig�n�1t�r 1�L�rrrc one 18 19 Policy 601.1.9 20 Monroe County shall maintain land development regulations which may include density 21 bonuses, impact fee waiver programs, and other possible regulations to encourage 22 affordable housing. 23 24 Policy 601.1.10 a 25 The Land Authority may acquire land for affordable housing projects if they are deemed 26 appropriate and acceptable by the Land Authority as meeting the intent of: 27 1. the affordable housing provisions in the Land Authority's enabling legislation; 28 2. the goals, objectives and policies of this Plan; and 2 29 3. the land use designations specified on the Future Land Use Map and in the Monroe 4- 30 County Land Development Regulations. 0 31 32 Policy 601.1.11 33 The Land Authority shall not list or acquire vacant,lands as potential affordable housing 34 sites if the lands exhibit any of the following characteristics: 35 1. Any portion of the land lies within a known, probable, or potentially suitable 36 threatened or endangered species habitat. 37 2. The land has a Tier designation other than Tier III. 38 3. The land is located in a V-Zone, on an offshore island or within a CBRS unit. E 39 40 Policy 601.1.12 41 Monroe County shall annually monitor the eligibility of the occupants of housing units 42 which have received special benefits, including but not limited to those issued under the 43 affordable housing provisions specified in the Land Development Code or those issued 44 through the Permit Allocation System. If occupants no longer meet the eligibility criteria 45 specified in the Plan and in the Land Development Code, and their eligibility period has 46 not expired, then Monroe County may take any one or a combination of the following 47 actions: Ordinance No. -2021 Page 16 of 20 File 2020-067 Packet Pg. 3850 S.1.rr 1 1. require the payment of impact fees, if they were waived; 2 2. proceed with remedial actions through the Department of Code Compliance, as a 3 violation of the Monroe County Code; 4 3. take civil court action as authorized by statute, common law, or via agreement 5 between an applicant and the County; and/or 6 4. require the sale or rental of the unit(s)to eligible occupants. 7 8 Policy 601.1.13 9 Monroe County shall maintain land development regulations on inclusionary housing and 10 shall evaluate expanding the inclusionary housing requirements to include or address 0. 11 nonresidential and transient development and redevelopment based on specific data and 0 12 analysis. � 13 CL 14 Objective 601.2 a. 15 Monroe County shall adopt programs and policies to encourage housing of various types, sizes 0 16 and price ranges to meet the demands of current and future residents 17 N 18 Policy 601.2.1 19 Public-private partnerships shall be encouraged to improve coordination among 20 participants involved in housing production. In these efforts, the County will establish a 21 comprehensive central depository for housing information located at the Monroe County 22 Housing Authority and Growth Management Division for the coordination and 23 cooperation among public and private agencies which collect and use housing data. 24 25 Objective 601.3 26 Monroe County shall continue implementation efforts to eliminate substandard housing and to 27 preserve, conserve and enhance the existing housing stock, including historic structures and 28 sites. 2 29 30 Policy 601.3.1 0 31 Monroe County shall coordinate with other County agencies to monitor housing 32 conditions. Standards for evaluation of the structural condition of the housing stock are 33 summarized below: cu 34 Sound: Most housing units in this category are in good condition and have no visible 35 defects. However, some structures with slight defects are also included. 36 37 Deteriorating: A housing unit in this category needs more repair than would be 38 provided in the course of regular maintenance, such as repainting. A housing unit is E 39 classified as deteriorating when its deficiencies indicate a lack of proper upkeep. 40 41 Dilapidated(Substandard): A housing unit in this category indicates that the unit can 42 no longer provide safe and adequate shelter or is of inadequate original construction 43 including being constructed below the minimum required elevation by FEMA or the 44 County's Floodplain Regulations. 45 46 Policy 601.3.2 Ordinance No. -2021 Page 17 of 20 File 2020-067 Packet Pg. 3851 S.1.rr I The County Code Compliance Office and Building Department will enforce building 2 code regulations and County ordinances governing the structural condition of the housing 3 stock, to ensure the provision of safe, decent and sanitary housing and stabilization of 4 residential neighborhoods. 5 6 Policy 601.3.3 7 Monroe County shall encourage expanded use of U.S. Department of Housing and Urban 8 Development (HUD) rental rehabilitation programs by the Monroe County Housing 9 Authority and State and Federal Floodplain or Hazard Mitigation programs to facilitate 10 increased private reinvestment in housing by providing information, technical assistance 11 in applications for federal and State funding, or provide local public funds for 0 12 rehabilitation purposes. 13 CL 14 Policy 601.3.4 a. 15 Monroe County shall encourage identification and improvement of historically c 16 significant housing through the coordination of public information programs defining 17 benefits and improvement funding sources. 18 19 Objective 601.4 20 Monroe County shall maintain land development regulations which allow group homes and 21 foster care facilities licensed or funded by the Florida Department of Health(DOH), as well as 22 subsidized housing for elderly residents of the County, to be located in residential areas as 23 appropriate. 24 25 Policy 601.4.1 26 Monroe County shall maintain land development regulations which permit group homes 27 and foster care facilities (homes of six or fewer residences which otherwise meet the 28 definition of Community Residential Home pursuant to F.S. § 419.001(1)(a)) licensed or 2 29 funded by the DOH in all land use categories which permit residential development where 4- 30 consistent with other goals, objectives, and policies of this Comprehensive Plan. 0 31 32 Policy 601.4.2 33 The County shall identify and evaluate alternative strategies to expand subsidized housing 34 programs for elderly residents of Monroe County through coordination with the Monroe 35 County Housing Authority, and encourage their development by private, community- 36 based non-profit, or public entities, as well as public/private partnerships. 37 38 Objective 601.5 39 The County shall provide uniform and equitable treatment for persons and businesses displaced 40 by state and local government programs, consistent with F.S. § 421.55. 41 42 Policy 601.5.1 43 By May 1, 201:720.24., Monroe County shall adopt uniform relocation standards for 44 displaced households. 45 46 Ordinance No. -2021 Page 18 of 20 File 2020-067 Packet Pg. 3852 S.1.rr I Section 3. Construction and Interpretation. This Ordinance is necessary for the health, 2 safety, and welfare of the residents of and visitors to the County. This Ordinance shall be liberally 3 construed to effect the public purpose(s)hereof. Interpretation of this Ordinance shall be construed 4 in favor of the Monroe County Board of County Commissioners ("Monroe County" or the 5 "County"), and such construction or interpretation shall be entitled to great weight in adversarial 6 administrative proceedings, at trial, in bankruptcy, and on appeal. 7 8 Section 4. Inconsistency, Partial Invalidity, Severability, and Survival of Provisions. 9 If any provision of this Ordinance, or any portion thereof, is held to be invalid or unenforceable in 10 or by any administrative hearing officer or court of competent jurisdiction, the invalidity or c 11 unenforceability of such provision, or any portion thereof, shall neither limit nor impair the 0 12 operation, enforceability, or validity of any other provision of this Ordinance, or any remaining 13 portion(s) thereof. All other provisions of this Ordinance, and remaining portion(s) thereof, shall 14 continue unimpaired in full force and effect. c. 15 0' E 16 Section 5. Repeal of Inconsistent Provisions. All ordinances or parts of ordinance in c 17 conflict with this ordinance are hereby repealed to the extent of said conflict. The repeal of an N 18 ordinance herein shall not repeal the repealing clause of such ordinance or revive any ordinance 19 which has been repealed thereby. 20 21 Section 6. Transmittal. This Ordinance shall be transmitted to the Florida State Land 22 Planning Agency as required by Florida Statute § 380.05(11) and Florida Statute § 380.0552(9). 23 24 Section 7. Filin2. This Ordinance shall be filed in the Office of the Secretary of the State 25 of Florida but shall not become effective until a notice is issued by the State Land Planning Agency 26 or Administration Commission finding the amendment in compliance with Chapter 163, Florida 27 Statutes, and after any applicable challenges have been resolved. 28 c 29 Section 8. Inclusion in the Monroe County Comprehensive Plan. The text amendment 30 shall be incorporated in the Monroe County Comprehensive Plan. The numbering of the foregoing 2 31 amendment may be renumbered to conform to the numbering in the Monroe County 32 Comprehensive Plan. 0 33 34 Section 9. Effective Date. This Ordinance shall become as provided by law and stated 35 above. 36 37 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, 38 Florida, at a regular public meeting held on the 21st day of April 2021. 39 40 Mayor Michelle Coldiron 03 41 Mayor Pro Tem David Rice 42 Commissioner Craig Cates 43 Commissioner Eddie Martinez 44 Commissioner Mike Forster 45 46 BOARD OF COUNTY COMMISSIONERS 47 OF MONROE COUNTY, FLORIDA 48 Ordinance No. -2021 Page 19 of 20 File 2020-067 Packet Pg. 3853 S.1.rr I BY: 2 MAYOR MICHELLE COLDIRON 3 4 (SEAL) MONROE O ATTORNEY 5 APF " TO FORM 6 ATTEST: KEVIN MADOK, CLERKASSISTANT COUNTY ATTORNEY 8 AS DEPUTY CLERK Date; 4.5.21 9 c 0 CL 0. c CJ N c c U 0 4- 0 r9 u Ordinance No. -2021 Page 20 of 20 File 2020-067 Packet Pg. 3854 Richard Grosso, Esq. Richard Grosso, P.A. 6919 W. Broward Blvd. Plantation, FL 33317 Mailbox 142 grosso.richard@yahoo.com 954-801-5662 April 20, 2021 Via email to: boccdis2@monroecounty-fl.gov; boccdis4@monroecounty-fl.gov; boccdisl@monroecounty- fl.gov; boccdis5@monroecounty-fl.gov; boccdis3@monroecounty-fl.gov The Honorable Mayor Michelle Coldiron, and members of the Monroe County Commission Re: April 21, 2021 BOCC Agenda Item S1 (300 ROGO Allocation increase) Dear Mayor Coldiron and County Commissioners, I write on behalf of Diane Beruldsen, Catherine Bosworth, Don DeMaria, Naja Girard, Cecilia Mattino, Last Stand, and the Island of Key Largo Federation of Homeowner Associations, regarding April 21, 2021 BOCC Agenda item S1, concerning 300 workforce housing early evacuation unit building permit allocations. All of the persons and entities on whose behalf I write either reside, own a home, or operate a business in Monroe County, or represent a substantial number of members who do so. I would ask that this correspondence be placed in the record for this matter. You may recall my letter of January 19, 2021, objecting to the proposed comprehensive plan amendment to increase by 300 the amount of Residential "ROGO" allocations which may be granted by the County. We enclose that letter for your convenience, and re-adopt the points made therein. In short, we ask that the County vote against increasing its ROGO allocations as proposed in this agenda item. At a minimum, we request the County to defer action on this item until the legality of the head— start evacuation concept on which the proposal is based has been finally determined by Florida's appellate courts. While we understand and appreciate the concept of banking the proposed 300 allocations for takings cases, in our view, increasing the current allocation cap which already exceeds the statutory 24 hour evacuation limit violates Florida law. This conclusion does not depend on the reason for granting the new allocations. The legality of head start, or early evacuation allocations will be determined in the appellate case currently before the Third District Court of Appeal in Mattino, et. al., v. Marathon, et. al.,Fla. 3d DCA Case No. 3D20-1921. Briefing in the case will be complete by the end of May, followed by a ruling by the Court on the legality of the Workforce Initiative the BOCC is considering for adoption. We would hope the Commission would consider it prudent to await the final judicial ruling before approving the 300 ROGO increase. Regarding the concerns about potential "takings" liability resulting from the County's current growth limits, I had provided a legal analysis of that issue along with my original January 19, 2021 letter. I am providing a more recent analysis that concludes that the potential liability for property rights violations,while a valid concern, is likely not nearly as extensive as many assume. Next, on the land use planning merit of the current proposal, I attach a June 6, 2018 letter from the County to the Department of Community Affairs raising questions and concerns about the proposal to add 1300 ROGO allocations to the Keys. Those questions and concerns are even more valid today. The final point I would make is the only one I will repeat here from my letter of January 19, 2021. We did not see this fact mentioned in the background documents for this item so we feel it important to make sure the Commission is aware that the evacuation time based on the current levels of allowable development is 26.5 hours, not 24 hours. This exceeds the statutory limit— which coincides with what the experts tell us is a maximum safe evacuation time -by 2.5 hours. For all of these reasons, at this pivotal time in the history of the Florida Keys, we urge the Commission to not increase the current residential development limits in the County. Sincerely, Richard Grosso w/ attachments: January 19, 2021 letter, Grosso to BOCC Analysis of Property Rights Issues and the Limited Growth System in the Florida Keys (March 1, 2021) June 6 2018 letter from Monroe County to DEO cc: Shillinger-Bob@MonroeCounty-FL.Gov; Schemper-Emily@monroecounty-fl.gov; Santamaria- Mayte@monroecounty-fl.gov; Atkins-Katherine@monroecounty-fl.gov; Lamarche- Tamara@monroecounty-fl.gov; leggett-amanda@monroecounty-fl.gov; abel- corie@monroecounty-fl.gov; Sarmiento-Eurie@monroecounty-fl.gov; Hurley- Chri stine@MonroeCounty-FL.Gov Richard Grosso, Esq. Richard Grosso, P.A. 6919 W. Broward Blvd. Plantation, FL 33317 Mailbox 142 grosso.richard@yahoo.com 954-801-5662 January 19, 2021 Mayor Michelle Coldiron Mayor Pro Tem David Rice Commissioner Craig Cates Commissioner Mike Forster Commissioner Eddie Martinez RE: BOCC Agenda item Q3 - 300 additional building allocations Dear Mayor Coldiron and County Commissioners, I write on behalf of Catherine Bosworth, Naja Girard Mike Laudicina, Cecilia Mattino, Friends of the Lower Keys (FOLKS), Last Stand, Island of Key Largo Federation of Homeowner Associations,regarding two items on the agenda for the Jan. 20 BOCC meeting the acceptance of 300 new early evacuation ROGOs and the conversion of some market rate ROGOs into affordable housing and/or workforce housing ROGOs. First, regarding the proposed 300 ROGO allocation increase, I want to bring the following key facts and points to your attention as you consider whether to increase the amount of development in the Keys. First, the evacuation time based on the current levels of allowable development is 26.5 hours, not 24 hours, as was incorrectly represented to the Governor and Cabinet and the local elected officials in 2018 when Islamorada,Marathon and Key West adopted their ROGO increases. During the administrative litigation that ensued, it was discovered that, in 2014, two years after approving the current development build-out caps, DEO had learned of a data input error that had under-counted evacuation time by 2.5 hours. This fact is referenced at paragraph 85, on page 28 of the Administrative Law Judge's Recommended Order in the ongoing litigation over the ROGO increases adopted by the three municipalities, which you have been provided by your staff as part of the backup material for this item. Surely however, it will be argued that since the ALJ and the DEO approved the municipalities' amendments despite this fact, the County is on solid ground to move forward. To that, I would first point out that the state's approval of the 1300 ROGO increase has been appealed to the Third District Court of Appeal. We feel confident that the fictional 48-hour evacuation "head start" concept relied upon to authorize that development increase will be found on appeal to violate the 24- hour limit in state law. But,putting aside the legal issues and theories,the reason the 24-hour limit was adopted is because anything beyond that is dangerous. This standard was adopted by the state because of the Keys' extreme vulnerability to hurricanes and the unique and very serious consequences of being unable to evacuate before a hurricane. In 1995, the Governor and Cabinet found "[n]o local government in Florida faces a more unique and serious challenge to protecting its citizens from the impacts of hurricanes..." 1995 DCA, et al. v. Monroe County, Fla. ENV LEXIS 129, 95 ER FALR 148. Id. at*291 ¶777. It found: "the minimum evacuation goal necessary to protect lives in the ... Keys should be 24 hours." Id. at*458 ¶1349.*** "nothing greater than a 24-hour evacuation clearance time is acceptable given the geographic and infrastructure constraints." Id. at *44. *** "a hurricane evacuation time of more than 24 hours is not acceptable if the health, safety and welfare of the citizens and visitors ... is the goal." Id. at *321 ¶879. This situation has grown more, not less, compelling over the intervening years. In 2017, DEP explained to the Cabinet that all local governments in the Keys: "are united by the need to maintain a hurricane evacuation clearance time of 24 hours prior to the onset of hurricane-force winds. The ... Keys consist of a chain of islands that are connected by a narrow ribbon of U.S. Highway 1, stretching 112 miles and spanned by 19 miles of bridges. *** Access to and from the Keys is primarily by U.S. Highway 1. Evacuation of the ... population in advance of a hurricane strike is of paramount importance for public safety.No hurricane shelters are available ... for Category 3-5 hurricane storm events. A system of managed growth was developed in order to ensure the ability to evacuate within the 24-hour evacuation clearance time ...."1 The"evacuation head start" concept on which the state is relying to allow the 1300 ROGO increase in the Keys assumes, contrary to the best available data and analysis, that emergency managers will have reliable predictions of the time and force of hurricane winds and related storm surge from the National Weather Service (NWS) to enable mandatory evacuation orders, and the beginning of pre-evacuation,48 hours prior to the arrival of tropical storm winds. The proceedings of the 2012 Hurricane Evacuation Working Group (in which the County and all cities participated along with DEO)are replete with technical committee recommendations that the concerns of rapid intensification prevent any meaningful prediction of intensity farther out then 24 hours. That concern has only increased in the intervening years. Because of the phenomenon of rapid intensification of tropical storms into hurricanes, the National Hurricane Center cannot reliably give warnings early enough to provide sufficient notice 1 DEO 2017 Annual ACSC Report,p. 3. (emphasis added) for emergency managers to decide to call an evacuation, announce the order, and have it received by early evacuees 48 hours before the arrival of tropical storm force winds. I attach two recent publications and presentations that explain well the current concerns federal and local Keys emergency managers have about this problem,. These documents were not considered in the 2019 administrative hearing on the cities' ROGO increases because federal law precluded our ability to secure the testimony of the necessary federal employees to verify these documents under the strict rules of trial evidence. But the reality is that these concerns are so pressing that the NHC and the County Emergency Management Director led a series of public forums in 2019 to educate the public about these concerns. According to the County Emergency Management Plan (April 2017): "Depending upon intervening factors, actual clearance times may vary from a minimum of 12 hours to a maximum of 30-plus hours. Some of these factors are: Unpredictable variations in forward speed, intensity, and the radius of the system's tropical storm conditions; ... The development of a [weather] system within the time frames for initiating protective systems" [i.e., TS rapidly intensifies within 48 hours of making landfall] (MC CEMP April 2017 —p. BP III—25). For these and many other reasons, the Keys have entered a part of their history where protecting public safety and existing investments should be the priority over adding more development and people. The County's excellent work on the global warming and sea level rise challenges it now faces make that soberingly clear. To that end, we urge the Commission to take approaches to the issue of housing affordability that do not increase overall development in the Keys. Converting a substantial number of existing market rate allocations to affordable allocations is a good place to start. Taking this course of action would avoid jeopardizing public safety by increasing the Keys evacuation time and would reflect the wise policy choice that a lack of affordable,not market rate, housing is the priority issue to be addressed. We note that a reason County staff is not recommending that approach is out of a concern about a resulting increase in future takings liabilities. It is my considered view, based on my 30 — plus years of involvement with comprehensive planning in the Keys and property rights litigation, that the potential property rights liability faced by the Keys local governments, while real, tends to be over-stated. For your consideration, I attach a"takings" legal analysis I had submitted to the County last year, and an analysis of vacant lots in the Keys that puts a sharper focus on the true numbers of lots that might realistically create takings liability, which was also submitted to the County last year. We think it important to engage in a rigorous analysis of the true extent of taking liability instead of making development decisions based on the unrealistic assumption that every single lots that ultimately cannot be developed will have to be bought at fair market value by the Keys' local governments. There are other approaches that do not require compromising public safety by increasing the number of people to be evacuated. Studies like Monroe County's Post-Irma Affordable Housing Recovery& Rebuilding Recommendations and Action Plan and prior studies for the Keys have made clear that measures such as curbing vacation rentals, and direct public funding to subsidize the use of existing housing to meet affordable housing needs through a variety of actions are far more likely to increase housing affordability than simply increasing ROGO allocations. Local elected officials should insist on an amendment to state law that exempts them from the state preemption of vacation rental regulation, which may be the greatest current cause of the loss of affordable housing. It makes sense to ask the state for funding support for affordable housing measures that don't require additional development For all of these reasons, at this pivotal time in the history of the Florida Keys, we urge the Commission not to overturn the current residential development limits and instead to pursue alternative courses of action to ensure the ability of its current citizens to live here affordably and safely. Richard Grosso w/ attachments: Water Impacts from Recent U.S. Landfalling Tropical Cyclones, Ken Graham National Hurricane Center (2019) Why the Weatherman Worries:A Timely Exploration in Hurricane Rapid Intensification for the Florida Keys, Jon Rizzo, Warning Coordination Meteorologist, National Weather Service Forecast Office, Florida Keys (2019) Jan Diamondstone Analysis to BOCC Feb 2020-Refining Takings Liability Richard Grosso to Monroe County BOCC 2-16-20 Richard Grosso, Esq. Richard Grosso, P.A. 6919 W. Broward Blvd. Plantation, FL 33317 Mailbox 142 grosso.richard@yahoo.com 954-801-5662 Analysis of Property Rights Issues and the Limited Growth System in the Florida Keys (March 1, 2021) The potential for private property rights liability is often put forth as a reason that local governments in the Keys should lift the development caps established in the existing Rate of Growth Ordinance(ROGO)or Building Permit Allocation System(BPAS). This concern typically focuses the judicial decisions holding that regulation categorically "takes" private property when it"denies all economically beneficial or productive use of land......1 The stated concern is that, if the current development allocations are not increased in the coming years and the Keys have reached maximum build-out, then the Keys local governments will be required to pay "takings" full market value awards for each undeveloped lot in the Keys. The law of property rights however is far more protective of the government's ability to strictly regulate property than is commonly understood. The memo analyzes the key aspects of property rights law as they apply to the unique circumstances of the Florida Keys. Overall, it is my opinion that(1) the governmental defenses against any such claims are numerous and strong; and(2)the potential number of privately—owned lots that might have a potentially valid"takings" claim is not as great as is often assumed. Initially, the courts have emphasized that a "categorical taking" occurs only when regulation removes"all economically beneficial us[e]" of property.Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005) (citing Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), at 1019). In Court explained in Lucas, the deprivation of economic value required for a facial takings claim is limited to "the extraordinary circumstance when no productive or economically beneficial use of the land is permitted." Lucas, 505 U.S. at 1017. (emphasis added). The Lucas opinion emphasized that this categorical rule would not apply if the diminution in value were 95%instead of 100%.Id. at 1019,n. 8.Anything less than a"complete elimination of value," or a "total loss," is not be a per se taking, and "takes" private property only if application of the Penn Central factors (discussed below) result in a judicial ruling that justice and fairness require taxpayer compensation to an dividual landowner.Lucas,505 U.S. at 1019-20, n. 8. ' Lucas v. South Carolina Coastal Council, 505 U.S. 1003, at 1015, 112 S. Ct. 2886, 120 L.Ed.2d 798 (1992) (establishing a categorical rule that a 100 percent reduction in economic value of land is a"per se taking"). See also,Agins v. City of Tiburon, 447 U.S. 255, 261, 100 S. Ct. 2138, 65 L.Ed.2d 106 (1980); Penn Central Transp. Co. v. New York City,438 U.S. 104 (1978). 1 In Palazzolo v. Rhode Island (Palazzolo), the Supreme Court explained that, to prove a total regulatory taking, a plaintiff must show that the challenged regulation leaves "the property `economically idle' " and that the plaintiff retains no more than "a token interest."3 The plaintiff in Palazzolo failed to prove a total taking where an eighteen-acre property appraised for $3,150,000 had been limited as a result of the challenged regulation allowing only one home to a value of$200,000. Id. at 616, 631, 121 S. Ct. 2448. The courts have made clear that government is not liable for a "taking" just because regulations reduce, even substantially, the value of property. The US Supreme Court's decision in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005)reiterated that"we must remain cognizant that "government regulation—by definition—involves the adjustment of rights for the public good" ... and that `Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law...."' The Florida Keys case of Beyer v. City of Marathon, 197 So.3d 563 (Fla. 3rd DCA 2016) and all `takings' decisions, hold that, absent extreme circumstances, any remaining reasonable economic use of the property will preclude a `takings' claim. In Beyer, the comprehensive plan prohibited all construction on the property; the only allowable use was camping, and the availability of ROGO dedication points, which gave the property a fair market value of$150,000. Since the property retained a reasonable economic value, there was no property rights violation. In the Keys, even if a parcel cannot receive a permit for major construction, it may still retain value as a result of potential non-permanent or minor construction, a ROGOBPAS aggregation or dedication point or other use. Some of the non - residential, commercial or industrial uses allowed by Keys local governments include passive recreation, mariculture and aquaculture,beekeeping, working waterfront, conservation land for which there is a local, state or federal land acquisition market. The value these potential uses provide for individual parcels will be a significant factor that militates against a successful takings claim. Most takings cases are decided on the unique facts of each case-the Penn Central factors Absent a complete prohibition of any valuable use, each potential `takings' claim is judged on its own individual facts and merit. The property rights clause "bar[s] Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005). In Pennsylvania Coal Co. v. Mahon4, the U.S. Supreme Court ruled that regulation will be deemed a taking if it "goes too far",5 a finding that depends on the particular circumstances in each individual case to determine whether,in that situation, "justness and fairness require the burden to be borne by the public at large..." and not the individual landowner. Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). 'Palazzolo v. Rhode Island, 533 U.S. 606, 630-631, 121 S. Ct. 2448, 150 L.Ed.2d 592 (2001). 3Id. at 631, 121 S. Ct. 2448 (quoting Lucas, supra at 1019, 112 S. Ct. 2886). 4 260 U.S. 393,43 S. Ct. 158, 67 L. Ed. 322 (1922) 5 126 U.S. at 415. (emphasis added). 2 That is the legal standard, applied based on certain factors to be discussed below. There is no hard and fast rule that the prohibition of construction or a substantial reduction in uses and value is a property rights violation. Takings analysis considers the entire set of circumstances, both community-wide and specific to the individual parcel of land. A particularly relevant example for the Keys is the discussion in the Lingle decision indicating that stringent regulation that applies broadly, as opposed to "singling out" one or a few landowners may not be a"taking." Among its reasons for reversing a lower court's takings award was that"Chevron has not clearly argued—let alone established—that it has been singled out to bear any particularly severe regulatory burden." 544 U.S. 528, at 544. In the Keys, the broad application of the development limits, and the comprehensive approach of which they are a part, supports the local governments in a takings challenge. Regulatory takings cases involve the "essentially ad hoc factual inquiries" described in Penn Central.6 Under this analysis, there is no "set formula" or "mathematically precise variables" for evaluating whether a regulatory taking has occurred, but instead "important guideposts" and "careful examination ... of all the relevant circumstances."7 The relevant factors include the"economic impact of the regulation" on the plaintiff, the extent to which the regulation "has interfered with" a landowner's"distinct investment-backed expectations"; and the"character of the governmental action."8 The more imperative the governmental interest, the farther regulation can go without being labeled a"taking". Regulations designed to prevent a public harm are less likely to be found to be a taking. For this reason, The U.S. Supreme Court has upheld land use regulations intended to prevent flooding and protect public safety. First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987). The compelling reason for the strict development limits in the Keys is a strong factor in defense of property rights lawsuits The"character of the government action"9-the reasons for the strict development limits in the Keys - is a very strong defense to property rights "takings" claims. The Administration Commission's 1995 Final Order made extensive findings about the Keys' unique and extreme vulnerability to hurricanes - a chain of islands, barely above sea level, connected to the mainland evacuation destination by a single road and multiple bridges (all prone to heavy flooding), and the great peril of being trapped on the road or at home during a dangerous hurricane.10 The Commission found "[n]o local government in Florida faces a more unique and serious challenge to protecting its citizens from the impacts of hurricanes..."ii, and ruled: 6 See Lingle, supra; TahoeSierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, supra at 321-326, 335-336, 122 S. Ct. 1465 (2002). See Palazzolo, supra at 633, 634, 636, 121 S. Ct. 2448 (O'Connor, J., concurring). s Lingle, supra at 2081-2082, quoting Penn Central, supra at 124. See TahoeSierra Preservation Council, Inc., supra at 320, 122 S. Ct. 1465;Leonard v. Brimfield, 423 Mass. 152, 154, 666 N.E.2d 1300, cert. denied, 519 U.S. 1028, 117 S. Ct. 582, 136 L.Ed.2d 513 (1996). 'Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978) 10 DCA v. Monroe County, 1995 Fla.ENV LEXIS 129; 95 ER FALR 148 (Admin. Comm.,Dec. 12, 1995) Id. at*293 ¶777 (emphasis added). 3 "the minimum evacuation goal necessary to protect lives in the ... Keys should be 24 hours."12 *** "nothing greater than a 24-hour evacuation clearance time is acceptable given the geographic and infrastructure constraints."13 *** "a hurricane evacuation time of more than 24 hours is not acceptable if the health, safety and welfare of the citizens and visitors ... is the goal."14 The Commission ruled that the amount of development allowed by the original 1992 ROGO exceeded the evacuation capability and ecological carrying capacity. It required all Keys local governments to: "limit... new residential development... provided that the hurricane evacuation clearance time does not exceed 24 hours ...." 15 (emphasis added) Also, since the 1995 Governor and Cabinet Order had also found "the nearshore waters cannot tolerate the impacts from sewage treatment and stormwater from additional development "16 and ordered that"additional development, if any, will be limited to that amount which may be accommodated while maintaining a hurricane evacuation time of 24 hours and ... meet environmental carrying capacity constraints."17 It ruled: "If the infrastructure cannot handle any additional inputs and, either the capacity cannot be increased or the cost of increasing the capacity ... is prohibitive, future development ... must be limited or even stopped."18 Section 380.0552(4)(e)2., Fla. Stat. was subsequently amended to limit the amount of permanent residential development to that which can be evacuated in no more than 24 hours, and the comprehensive plans of all local governments in the Keys include that development cap19. As the Department of Economic Opportunity explained in a 2017 report to the Governor and Cabinet, all local governments in the Keys: "are united by the need to maintain a hurricane evacuation clearance time of 24 hours prior to the onset of hurricane-force winds. The ... Keys consist of a chain of islands that are connected by a narrow ribbon of U.S. Highway 1, stretching 112 12 Id. at*461 ¶1349. 13 Id at*43-44. 14 Id. at*321 W9. 11 Id. at*74 16 DCA, et. al. v. Monroe County, *204,¶407.. (emphasis added) 17 DCA, et. al. v. Monroe County, p. 309, ¶930. 18 DCA, et. al. v. Monroe County, p. 138,¶930) (emphasis added). 19 Section 163.3178, Fla. Stat., which also applies to the comprehensive plans in the Keys, requires that comprehensive plans "protect human life ... in areas that are subject to destruction by natural disaster" and .,protect[]human life against the effects of natural disaster,including population evacuation...." §163.3178 (1), and(1) d., Fla. Stat. 4 miles and spanned by 19 miles of bridges. *** Access to and from the Keys is primarily by U.S. Highway 1. Evacuation of the ... population in advance of a hurricane strike is of paramount importance for public safety. No hurricane shelters are available ... for Category 3-5 hurricane storm events. A system of managed growth was developed in order to ensure the ability to evacuate within the 24-hour evacuation clearance time ...."20 In 2012, each local government in the Keys and the DEO entered into a Memorandum of Understanding to determine the hurricane evacuation clearance times for the Keys' population, and"the maximum build-out capacity for the [Keys], consistent with the requirement to maintain a 24-hour evacuation clearance time and [environmental] constraints."2 1 That process resulted in a determination that the maximum "buildout" of the Keys which would maintain a 24-hour hurricane evacuation time was 3550 additional residential development units. Each local government amended its comprehensive plan to cap residential development based on its proportional share of the 3550 units. All landowners have had notice of that cap since then.22 This is the stringent regulatory regime that has applied to all undeveloped lands in the Keys for many years beginning with the Area of Critical State Concern designations in the 1970's, the Growth Management Act requirements if the mid -1980's, the ROGO growth caps of the early 1990's and the eventual establishment of a build-out cap in 2012. That theses strict rules are required by state law, applied comprehensively and consistently, and exist to protect lives during and after hurricanes. They are also necessary to protect the unique and extreme environmental fragility of the Keys, and the water quality essential the Keys economy and way of life. These factors weigh heavily in government's favor in any "takings" analysis. On this point, the Florida case of Lee County v Morales23 is illustrative. Morales rejected a claim that a sharp reduction in allowable uses was a taking where the purpose of the rezoning was to preserve archaeological resources,protect the environment and adjoining aquatic preserve, and guard against the threat by hurricanes and flooding to development. The Court emphasized that the downzoning was not arbitrary but was instead based upon an expert study and legitimate environmental, public safety, and concerns related to protection of endangered species, severe erosion, and the constant state of change of the land due to storm damage.24 The strict development caps in the Keys are the product of extensive study and science about hurricane forecasting and evacuation, warming and rising seas and rapidly intensifying hurricanes, comprehensive water quality sampling and a $ 6 million ecological carrying capacity study. The public safety imperative (hurricane evacuation and structural damage to adjoining properties and persons),and the ecological carrying capacity bases for the strict development limits in the Keys are strong defenses to `takings' claims. The reality facing local governments in the Keys: the state of rising seas, more frequent and intense hurricanes, and the resulting financial 2°DEO 2017 Annual Report,p. 3. (emphasis added) 21 July 2012 Memorandum of Understanding. 22 The state's approval of comprehensive plan amendments adopted to lift that build -out limit is currently on appeal. 23 Lee County v Morales, 557 So.2d 652 (Fla. 2nd DCA 1990). 24 Id at 653 — 656. 5 liability for protecting buildings,infrastructure and people and for post-disaster relief are important considerations in any "takings" analysis. Restrictions designed to comply with statutory mandates to protect the loss of life and prevent catastrophic ecological damage are less likely to be seen as "going too far", "unjust", or"unfair." The Florida Supreme Court has ruled: "The degree of constitutionally protected property rights "must be determined in the light of social and economic conditions which prevail at any given time."25 The Court has also ruled that, in a case from the Florida Keys, that private property rights and the public interest to be balanced.26 The conditions facing the Florida Keys — increasing evacuation challenges, rising seas, the prohibitive costs of massive infrastructure improvements, ecological loss, will weigh heavily in their favor in a "takings" case. The ROGO/BPAS growth caps exist to prevent loss of life in face of major storms and hurricanes, the threat of which is exacerbated by global warming — induced stronger and more un-predictable hurricanes, and to protect the water quality and environmental integrity that is the very basis of the Keys economy and way of life. The paramount public purpose for these development limits, and that they are required to prevent a variety of public harms is a strong"takings" defense. Of particular relevance in support of ROGO is City of Hollywood v. Hollywood, Inc., 432 So.2d 1332 (Fla. 4th DCA 1983), where a city had adopted an annual cap on density based on its concerns for water and sewage capacities, fire and police protection, hurricane evacuation, ecological and environmental protection, aesthetics, and public access to the ocean.Under the cap, the number of permits to be issued was expressly based on traffic capacity because no other existing method would yield a specific number to represent the limitations that existed relative to the other factors. The court upheld the density cap even though it found that the traffic study upon which the overall density cap was based was flawed. Id. at 1334. Despite this flaw, the Court found that the growth limitation was based upon and justified by multiple valid considerations of the public interest, and not solely upon traffic considerations. Id. 1334 -1336. ROGO /BPAS strongly resembles the ordinance upheld in City of Hollywood. Moreover, the critical public safety reason for the 24-hour evacuation limit is a particularly strong governmental defense. It is not an arbitrary number plucked out of the air. It is based on the widespread understanding of the unique low-lying geographical and road infrastructure challenges of evacuating the population prior to a hurricane; the perils of being unable to evacuate; and the clear and consistent statements from the National Hurricane Center that it cannot reliably predict the onset of tropical storm winds beyond 24 hours in advance.27 25 Dept. ofAgric. & Consumer Servs. v. Mid-Florida Growers,Inc.,521 So.2d 10 1,103 (Fla. 1988). 26 Dep't. of Comm. Affairs. v. Moorman, 664 So. 2d 930, 933 (Fla. 1995) ("Landowners do not have an untrammeled right to use their property regardless of the legitimate environmental interests of the State.) 27 As stated in the DEO 2017 Area of Critical State Concern Annual Report, at 3 &4 of 11, "[t]he ... Keys consist of a chain of islands that are connected by a narrow ribbon of U.S.Highway 1,stretching 112 miles and spanned by 19 miles of bridges. The ... Keys are isolated from the rest of the state and receive electricity and potable water from ... the ... mainland.Access to and from the Keys is primarily by U.S. Highway 1. Evacuation of the ... population in advance of a hurricane strike is of paramount importance for public safety. No hurricane shelters are available in the ... Keys for 6 The BPAS and ROGO growth cans have already been successfully defended in court In addition to Beyer v. City of Marathon,Dep't. of Community Affairs. v. Moorman, and Good v. United States, discussed below, other judicial decisions have shown the strength of the Keys' growth restrictions to stand up in court. Monroe County's annual growth caps were upheld against a property rights challenge in Burnham v. Monroe County, 738 So. 2d 471, 472 (Fla. 3d DCA 1999), where the court held that the rate of growth ordinance was constitutional. The court ruled "the ROGO ordinance was constitutional, as it substantially advances the legitimate state interests of promoting water conservation, windstorm protection, energy efficiency, growth control, and habitat protection." Id. This was reiterated in a `takings' case - Collins v. Monroe County, 118 So. 3d 872 (Fla. 3d DCA 2013)—in which the County prevailed. The Collins case and other decisions and analyses are explained in the excellent legal analysis provided by Assistant Monroe County Attorney Derek Howard in his December 2017 article in the Environmental and Land Use Law Section Reporter, Derek Howard, Local Regulatory Taking Claims: Accounting for State and Federal Regulations to Minimize Liability and Damages Exposure, ELULS Reporter Vol. XXXIV, No. 10 Dec. 2017. This article explains that a property owner must prove a"reasonable investment-backed expectation" of development that has been substantially thwarted by regulation. The principles that defeat a takings claim include"buyer beware" and"cannot sleep on one's rights". He also describes land use cases which were won by Monroe County. Because, as reported by Mr. Howard, each case is considered on its own facts, and more takings claims fail than succeed, it should not be assumed that government compensation would have to be made for every vacant lot that is unable to receive a residential ROGO/BPAS allocation, which is highly unlikely given the fact-specific nature of property rights legal analysis and many long-standing legal defenses to compensation claims discussed above.28 Landowners who purchased subiect to ROGO/BPAS have diminished "takings" claims Federal takings law29 and Florida's Harris Act protect a landowner's "reasonable, investment-backed expectations and / vested rights to use of the property.30 Thus, both the increasing general public awareness of the hurricane evacuation limitations facing the Keys, Category 3-5 hurricane storm events. A system of managed growth was developed in order to ensure the ability to evacuate within the 24-hour evacuation clearance time ...." 28 The notable exception, Galleon Bay Corp. v. Bd. of County Commissioners of Monroe County, 272 So. 3d 396 (Fla. 3d DCA 2018) where the plaintiff succeeded partially in its claim, involved a pre-ROGO approved development which both the Beneficial Use Hearing Officer and,ultimately,the Court,found had been diligently pursued. For more history, see Galleon Bay Corp. v. Bd. of County Com'rs of Monroe County, 105 So. 3d 555, 558 (Fla. 3d DCA 2012). 29 Avenal v. United States, 33 Cl. Ct. 778, 785 (1995). " § 70.001(3)(e)(1), Fla. Stat.; See, also., Thomas Ruppert,Reasonable Investment-Backed Expectations: Should Notice of Rising Seas Lead to Falling Expectations for Coastal Property Purchasers?, 26 J. Land Use &Envtl. L. 239, 246 (2011). 7 the growing impacts of sea level rise 31, and the combination thereof,will tend to support the Keys' growth restrictions in response to "takings" claims. When determining the reasonableness of a landowner's investment-backed expectations, courts consider, among other things, whether a discounted price indicated prior knowledge of a potential limitation to use or develop; and the overall riskiness of the investment. Palazzolo v. Rhode Island.32 Palazzolo ruled that acquiring a property after a regulation had taken effect is a particularly relevant consideration.33 Similarly, in Abrahim-Youri v. United States, 36 Fed. Cl. 482, 486 (1996)the Federal Court of Claims wrote that: "In assessing the reasonableness of investment-backed expectations, the question ... is whether plaintiffs reasonably could have anticipated that their property interests might be adversely affected by Government action. Where such intrusion is foreseeable, the commitment of private resources to the creation of property interests is deemed to have been undertaken with that risk in mind; hence, the call for just compensation on grounds of fairness and justice is considerably diminished". Landowners who purchased their land after the rate of growth restrictions were enacted will have difficulty winning a property rights suit. The purchase of property with existing zoning restrictions will likely preclude a `takings' claim when those restrictions prevent development; owners are deemed to acquire their land subject to existing regulations. In Namon v DER, 558 So. 2d 504 (Fla. 3d DCA 1990),the Court rejected a `takings' claim where the owner,when he bought the land, had constructive knowledge of the need to secure a state wetland permit prior to development. Even though no construction or economic use could be made of the property, there was no taking when the owner was validly denied a permit when he had constructive knowledge that he might not qualify for a permit when he chose to buy the land: "A person who purchases land with notice of statutory impediments to the right to develop that land can justify few, if any, legitimate investment-backed expectations of development rights which rise to the level of constitutionally protected property rights." *** One who purchases property while it is in a certain known zoning classification, ordinarily will not be heard to claim as a hardship a factor or factors which existed at the time he acquired the property." Namon is a strong defense to `takings' claims based on regulatory decisions in effect at the time the property is purchased. In a Keys case, Good v. United States, 39 Fed. Cl. 81, 112-14 (1997), a federal court rejected a `takings' claim, ruling"[w]hile plaintiff was free to take the investment risks he took in 31 Ruppert, Grimm & Candiotti, Sea-Level Rise Adaptation and the Bert J. Harris, Jr., Private Property Rights Protection Act, https://www.flseagrant.org/wp-content/uploads/2012/03/Ruppert_BH- Act_article.pdf 32 Palazzolo v. Rhode Island, 533 U.S. 606 (2001). 33 Palazzolo v. Rhode Island, 533 U.S. 606, 626 (2001). 8 this regulated environment, he cannot look to the Fifth Amendment for compensation when such speculation proves ill-taken." As explained by Mr. Howard: "Based on Good, if regulation of property is pervasive at all levels of government, the local government can argue that it is unreasonable for a developer to purchase the property and continue making an investment in seeking local development approval." "In determining if Mr. Good had reasonable investment-backed expectations, the court noted that (a) his initial purchase investment was predated by `pervasive federal and state regulation' of `ecologically sensitive areas' such as his property (b)by the time he chose to invest in development,the complained of regulation was already in place. These facts proved fatal to [his] claim. The court explained that `[t]he reasonable investment-backed expectations factor ... properly limits recovery to property owners who can demonstrate that their investment was made in reliance upon the non-existence of the challenged regulatory regime. In part,the rationale for this rule is that one who invests in property with the knowledge of the restraint assumes the risk of economic loss.' Good stated that `state and local restrictions must be considered in determining the presence or absence of reasonable investment-backed expectations to engage in the proscribed use.' The court further stated that `in a case where a developer could recoup his initial investment in the property, but nonetheless chooses to continue to invest in development in the face of significant regulatory limitations, no reasonable expectations are upset when development is restricted or proscribed.' The court concluded that `the pervasiveness of the regulatory regime at the time plaintiff purchased Sugarloaf Shores deprives him of a reasonable expectation to effect his development plans."' (internal citations omitted). Thus, in the Keys, among the key facts that would distinguish some vacant lot claims from others is whether the property was acquired before or after the enactment of ROGO in 1992. The well-known strict regulatory regime that governs development in the Keys may preclude many owners from succeeding in a `takings' suit, particularly those who purchased their land after the 1992 adoption of the rate of growth limits. In an effort to begin to quantify the vacant lot situation in the a Keys, an April 2019 analysis of data provided by the Monroe County Property Appraiser found: • of the total residential parcels in unincorporated Monroe County(5685),75.5%of them (4291) were last purchased after ROGO was enacted. • of the total residential parcels in Key West (188), 70% of them (132) were last purchased after ROGO was enacted. • of the total residential parcels in Islamorada (736), 81% of them (598) were last purchased after ROGO was enacted. 9 • of the total residential parcels in Marathon (1,183), 84% of them (988) were last purchased after ROGO was enacted. • of the total residential parcels in Key Colony Beach (77), 83% of them (64) were last purchased after ROGO was enacted. • of the total residential parcels in Layton (23), 74% of them (17) were last purchased after ROGO was enacted. Obviously, the overwhelming number of vacant lots were purchased with actual or constructive knowledge of the ROGO/BPAS limits. Pre-ROGO purchasers also are not immune from new regulations Landowners who bought their parcels prior to ROGO are not necessarily due compensation as a result of strict regulation enacted after their purchase. Courts recognize the ability, indeed the responsibility, of government to respond to new information and science by changing regulations to respond accordingly. Landowners cannot hold vacant land for long periods of time while regulation increases in response to changed conditions and then expect courts to hold them harmless from those regulations. Among the clearest cases on this point is also a case from the Keys. In 2016, the US Supreme Court declined to review, and thus let stand, Beyer v. City of Marathon, 197 So.3d 563 (Fla. 3rd DCA 2016), which ruled in favor of Marathon in a `takings' case. In Beyer, the owner had purchased an undeveloped nine-acre offshore island(Bamboo Key) in 1970, when it was under the jurisdiction of the County and zoned for Gen. Use, which allowed one home per acre. In 1986, a zoning change to Cons. Offshore Island reduced the allowable density to one unit per 10 acres. In 1996, the County Plan was adopted and identified the island as a bird rookery and prohibited any development. The Beyers submitted a beneficial use application in 1997 but the County had taken no action by 1999 when Marathon incorporated. After a Beneficial Use hearing, a Special Master found the only allowable use of the property was camping, and that the assignment of ROGO points constituted reasonable economic use — creating a total value of $150,000. The Special Master found the owners' inactivity over 35 years, despite increasingly strict land use regulations, precluded any reasonable expectation of greater development value. The owner sued Marathon for a `taking' and lost. The Court ruled that the existence or extent of Beyers' investment-backed expectations to develop Bamboo Key was a fact-intensive question, and that there was no evidence that the Beyers "had any specific plan for developing, dating from time of purchase in 1970, up to the present." It ruled that if the owners did not start development prior to the land use regulations, "they acted at their own peril in relying on the absence of zoning ordinances..." and that a"subjective expectation that land can be developed is no more than an expectancy - does not translate into a vested right to develop the property.i34 "The Bert Harris Act(F.S.70.001 Private Property Rights) also requires proof of a reasonable investment backed expectation. "In determining whether reasonable,investment-backed expectations are inordinately 10 The Derek Howard article also explains that a lack of legally — protected, investment - backed expectations resulted in a successful defense of a `takings' case by the County in Collins v. Monroe County,supra,which emphasized that government is not required to compensate owners for land which remained undeveloped for many years, while regulation increased in response to government responsibilities to protect the public: "While the Landowners own properties on distinct areas of the ... Keys, there appears to be one underlying commonality among them: with [one] exception ... the Landowners did not take meaningful steps toward the development of their respective properties, or seek building permits, during their sometimes decades-long possession of their properties. *** `Monroe County was designated an area of critical state concern in 1979, but the first land use regulations were not enacted until 1986. If the ...owners did not start development prior to the enactment of these land regulations, they acted at their own peril in relying on the absence of zoning ordinances.' [***] The ... owner in Galleon Bay serves as a suitable contrast to the Landowners in the instant case. In Galleon Bay,the ... owner, over the course of several decades,proceeded with numerous efforts to improve its land including, but not limited to,having its subdivision platted,having the zoning district changed, extensively negotiating with the County, and revising its plat. *** Here, there was a noticeable lack of meaningful efforts by the ...owners to explore the possible development options where ... they became aware that building permits could be made available to them ...." (internal citations omitted) As put succinctly by the decision in Monroe County, et.al. v. Ambrose, 866 So. 2d. 703, 711 (Fla 3rd DCA 2003), where Monroe County, several municipalities and the state successfully defended a broad claim of vested rights: "It would be unconscionable to allow the Landowners to ignore evolving and existing land use regulations under circumstances when they have not taken any steps in furtherance of developing their land." A recent case that rejected a federal constitutional "takings" claim on this basis is Smyth v. Conservation Commission of Falmouth, 119 N.E.3d 1188 (Mass. App. Ct. 2019). In Smyth the Plaintiff owned an unimproved lot which had been purchased in 1975 for $49,000 with the intent to build a retirement home. The first steps ever taken to develop the lot occurred in 2006, but the development plans for a single - family house did not comply with the current development standards for wetlands and storm water. Without the ability to construct the house,the value of the lot was $60,000 due to the ability to use if for recreational uses. The value the lot would have been —$700,000 if the home could be built. Applying the Penn Central test to determine liability, the court found no taking because (a) the $60,000 value as regulated exceeded the $49,000 purchase price. (b) the opportunity to burdened, consideration may be given to the factual circumstances leading to the time elapsed between enactment of the law or regulation and its first application to the subject property." 11 developed the property had existing for over 30 years before the plaintiff first sought to build; and (c) the regulations at issue applied generally to all wetland property in the town. This is a crucially important point in the Keys, where landowners are aware of the very unique ecological sensitivity of virtually every piece of land (the development of even scarified or disturbed lands has secondary impacts on higher quality habitats and nearshore water quality). They have also witnessed a steady increase in environmental and hurricane- related development restrictions starting with the Area of Critical State Concern designations in the 1970, the significantly increased restrictions resulting from the 1985 Growth Management Act, the ROGO/ BPAS development caps in the early 1990s and the establishment of a final "build-out" development allocation in 2012. At the same time, the local governments and the state have expanded and maintained opportunities for owners to realize value from their land in the form of land acquisition programs, ROGO/ BPAS lot aggregation and donation incentives, and transferrable development rights programs. Given these facts, a Keys landowner that took no concrete steps to apply for development approvals or avail themselves of those other options would bear a strong burden to convince a court that justice and fairness require a ruling that government has "taken" their property. This is particularly true given the unique, severe and paramount public safety other reasons for the strict regulatory regime in the Keys. Single ownership of multiple lots reduces "takings" liability The final key aspect of property rights law that can reduce, perhaps substantially, the "takings" liability of Keys' local governments is the judicial approval of lot aggregation/ combination requirements. A meaningful assessment of potential"takings" liability would require the identification of how many vacant lots in the Keys are in single ownership. The regulatory approach of aggregating lots to allow only minimal reasonable development on one of several adjoining lots received strong endorsement in 2017 when the US Supreme Court ruled that lot merger requirements did not violate the private property rights of a family that was allowed to build only one house on two adjoining lots. In Murr v. Wisconsin, 137 S. Ct. 1933 (US 2017), the Court observed that a central dynamic of property rights law is its flexibility to reconcile the individual's right to private property with government's power to adjust rights for the public good. The decision strongly supports the practice of treating multiple subdivided adjoining lots as one parcel to determine whether the owner has been allowed a reasonable economic use of the "property as a whole." The Court recognized that strict regulation can have positive impacts on the value of heavily regulated property by increasing privacy and recreational space or preserving surrounding natural beauty: "[I]f the landowner's other property is adjacent to the [Landowner's]lot,the market value of the properties may well increase if their combination enables the expansion of a structure, or if development restraints for one part of the parcel protect the unobstructed skyline views of another part." The Court also noted that where the ability to build is severely limited,the enforcement of that same restriction against other properties benefits that owner, also militating against finding a property rights violation. 12 The Court also made clear that lot aggregation requirements are more likely to be upheld when enacted to protect highly sensitive and regulated resources. The factors to be considered are: "[T]he physical relationship of any distinguishable tracts, the parcel's topography, and the surrounding human and ecological environment. In particular, it may be relevant that the property is located in an area that is subject to, or is likely to become subject to, environmental or other regulations." In reasoning clearly applicable to the Keys, the Court upheld the regulation, finding it to be "reasonable ... enacted as part of a coordinated federal, state, and local effort to preserve the river and surrounding land." The Court wrote: "Coastal property may present such unique concerns for a fragile land system that the State can go further in regulating its development and use than the common law of nuisance might otherwise permit." Murr enunciates a particularly strong defense available to the state and local governments in the Keys, where lot aggregation and a highly restrictive regulatory regime designed to preserve a unique and fragile coastal ecosystem and way of life are key facts in a `takings' case.35 Any analysis of potential `taking' liability should include a consideration of the number of adjacent lots in single ownership, and not assume that compensation would need to be given for the value of every individual lot for which a development permit is not issued. Based on the Murr analysis, it is also important to know whether a parcel is undevelopable for environmental or other reasons -- for example, the inability to acquire a federal wetland permit-- not attributable to the local ROGO/BPAS limits36 Florida's Harris Act Since its enactment in the 1995, Florida's Harris Act has been mentioned frequently by lawyers for landowners and even some local officials as an impediment to strict regulation. That claim relies on the fact that the Harris Act "provides a cause of action for governmental actions that may not rise to the level of a taking under the State Constitution or the United States Constitution." §70.001(9), Fla. Stat. But the Act only applies to new regulations enacted after its adoption in 1995, establishes a high bar for the granting of compensation, and provides a safety valve mechanism for government in the rare cases where regulations subject to the Act 35 Murr reiterated the rule that knowledge of restrictions in place at the time of purchase weighs strongly against a "takings" claim. 36 Similarly, in situations where a property is "unduly burdened" by the combined effect of multiple restrictions maintained by more than one agency, Florida's Harris Act makes government entities liable only for the percentage of responsibility each such governmental entity bears for that burden. §70.001 (6)(a),Fla. Stat 13 "inordinately burden" an individual property owner. These are significant limitations on the ability of landowners in the Keys to force the taxpayers to compensate them for the inability to build under the ROGO/BPAS growth caps. The ROGO/ BPAS restrictions are generally not subject to the Harris Act, because they were enacted prior to its adoption. The Harris Act only applies "when a new law, rule, regulation, or ordinance ... unfairly affects real property." §70.001(1), Fla. Stat. It does not apply to the application of any law, rule, or ordinance adopted, or formally noticed for adoption, on or before May 11, 1995. §70.001(12), Fla. Stat. It applies to a subsequent amendment to any such law, rule, regulation, or ordinance only to the extent that the regulatory chance imposes an inordinate burden apart from the pre- existing law,rule or ordinance being amended. §70.001(12),Fla. Stat. Because the ROGO/BPAS growth caps were enacted in 1992, they cannot be challenged under the Harris Act. This is a very broad limitation on any liability local governments in the Key might have under the Act. Another important limitation on the applicability of the Act to the Keys is the exclusion from liability for "any actions taken by a county with respect to the adoption of a Federal Emergency Management Agency Flood Insurance Rate Map issued for the purpose of participating in the National Flood Insurance Program. §70.001 (1)(b), Fla. Stat. Properties that are unable to be built upon due to their flood-prone character may be unable to invoke the Act for that reason. Even if the Harris Act could apply to the ROGO/ BPAS restrictions (for example if a change to the point scoring system adopted after Mayl1, 1995 was the difference between receiving a building permit allocation or being denied such an allocation, that change would itself have to constitute an "inordinate burden". In all cases, that standard is an exacting one. Under the Harris Act, landowners have the burden of proving they have suffered an "inordinate burden" - an exacting standard. The "takings" standard under the Act is a difficult one to prove. The "Harris" Act entitles landowners to compensation only where they can prove that a regulation"has inordinately burdened an existing use of real property or a vested right to a specific use of real property...." §70.001 (2), Fla. Stat. The existence of a"vested right"is to be determined by applying the principles of equitable estoppel or substantive due process under the common law or by applying the statutory law of this state. §70.001(3) (a), Fla. Stat. The term "existing use" means: "1. An actual,present use or activity on the real property, including periods of inactivity which are normally associated with, or are incidental to, the nature or type of use; or 2. Activity or such reasonably foreseeable, nonspeculative land uses which are suitable for the subject real property and compatible with adjacent land uses and which have created an existing fair market value in the property greater than the fair market value of the actual,present use or activity on the real property." §70.001 (3) (b), Fla. Stat. 14 A landowner who can prove the existence of such a vested right or use, must then also prove that government has "inordinately burdened" that use. The terms "inordinate burden" and "inordinately burdened" mean: "an action ...[which] has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole, or that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large. "§70.001 (3) (e) (1), Fla. Stat. (emphasis added) This is very similar to the ultimate standard courts have consistently applied to "takings" claims brought under the Florida or the US Constitution. It does not appreciably lower the threshold for government liability. The same defenses available to a local government defending a constitutional property rights claim are available when defending a Harris Act claim. Moreover, the Harris Act requires a landowner to specifically document the evidence of an alleged inordinate burden" with "a bona fide, valid appraisal that supports the claim and demonstrates the loss in fair market value to the real property." §70.001 (4) (a), Fla. Stat. In addition, landowners must strongly consider the merit of the claim before suing a local government under the Act. If a landowner sues an agency under the Act and ultimately fails to prove that the challenged regulation constitutes an inordinate burden,the owner must pay the local government's attorney fees. §70.001 (6) (c) 2, Fla. Stat. Over 25 years, the Florida appellate courts have only confirmed one Harris Act violation but overturned several lower court rulings that the Act had been violated.37 The lone case where an appeals court found a violation involved an unusual set of facts — a set of actions by the local government that clearly trampled on a landowner's vested rights. In Ocean Concrete, Inc. v. Indian River Cty., Bd. of Cty. Commis, 241 So. 3d 181, 183 (Fla. 4th DCA 2018). the court affirmed a final judgment under the Act in favor of a landowner who had purchased a parcel of land to build a concrete batch plant only after meeting with county staff to confirm that the plant was permitted by the county code. After the owner filed multiple applications, acquired several permits, installed wells, cleared and graded the property,planted a landscape buffer, and began to install a rail spur and made other substantial expenditures in reliance on the zoning code, the County acceded to public opposition to the project and amended the code to prohibit the plant. Unsurprisingly, the Court found this to be just the type of retroactive, "unfair" preclusion of a "reasonable, investment-backed expectation for the existing use" of land the Act was written to address. 37 Town ofPonce Inlet v. Pacetta, LLC, et al, 120 So. 3d 27 (Fla. 5th DCA 2013). See also, M&HProfit, Inc. v. Panama City, 28 So.3d 71(Fla. Pt DCA 2009); Holmes v. Marion County, 960 So.2d 828 (Fla. 5' DCA 2007);Jacksonville v. Coffield, 18 So.3d. 589 (Fla. Pt DCA 2009). 15 Even if a local regulation were subject to the Act,and an owner has a valid claim that it inordinately burdens his or her property, the owner is entitled only to some relief — not necessarily compensation. Even in those rare situations where a landowner could prove that the ROGO/ BPAS or other land use or environmental restriction in the Keys is an inordinate burden, owner"is entitled to relief, which may include compensation for the actual loss to the fair market value ...." §70.001(2),Fla. Stat. The law is intended to provide relief to owners who suffer inordinate burdens — not to require the taxpayers to buy their land are fair market value. The law is set up to give landowners the opportunity to present a valid claim to the government and authorize the agency to grant a variance or other relief from the burdensome restriction. The owner cannot bring suit under the Act unless it has first given the agency formal notice of its claim and the opportunity to either grant a variance or purchase the property. At least 150 days prior to filing an action, the owner must present the claim, and the supporting evidence, in writing to agency. §70.001 (4)(a), Fla. Stat. During the notice, the governmental entity then makes a written settlement offer of its choosing from any of the following options, which the Act authorizes it to effectuate: 1. An adjustment of development or permit standards. 2. Increases or modifications in the density, intensity, or use of areas of development. 3. The transfer of developmental rights. 4. Land swaps or exchanges. 5. Mitigation, including payments in lieu of onsite mitigation. 6. Location on the least sensitive portion of the property. 7. Conditioning the amount of development or use permitted. 8. A requirement that issues be addressed on a more comprehensive basis than a single proposed use or development. 9. Issuance of the development order, a variance, special exception, or other extraordinary relief. 10. Purchase of the real property, or an interest therein, by an appropriate governmental entity or payment of compensation. §70.001 (4)(c), Fla. Stat.38 While several of these options would not be available if the property is inordinately burdened as a result of ROGO/ BPAS allocation limits, in all cases, the ability exists to grant a waiver or purchase the land (or coordinate with other local, state or federal agencies to do so) to avoid a liability and a compensation judgment under Harris Act. §70.001 (4)(d), Fla. Stat. If the owner rejects the settlement offer, in any suit the owner would bring under the Act, the court will consider the settlement offer and statement of allowable uses when determining whether the agency inordinately burdened the property. §70.001 (6)(a), Fla. Stat. 38 The agency may also choose to offer no changes to its action, which it would presumably do if it believes the claim to lack merit. §70.001 (4)(c)11,Fla. Stat 16 The key implication of this procedure is clear. Local governments need not anticipatorily loosen necessary valid restrictions out of fear of Harris Act liability. They can do so only on a case by case basis, where a specific landowner, based on specific circumstances, has proven that they would otherwise suffer the type of unfair burden the Act was enacted to prevent. The Harris Act's emphasizes requiring proof of, and creates the opportunity to avoid, a bona fide claim prior to the filing of a lawsuit. No liability accrues to the agency prior to its staff and lawyers having the full opportunity to assess the actual evidence supporting a claim and advise the agency on how to proceed. Local governments need not loosen their rules across the board based on a generalized theoretical or threatened potential for Harris Act claims, but should, as stewards of the public trust, maximize the substantive and procedural defenses available to them under the Act. Increased Allocations Could, Ironically, Undermine the Legal Support for Comprehensive Development Limits in the Keys Increasing "ROGO" or `SPAS" allocations could actually to hurt the ability of the local governments in the Keys to defend property rights suits, by undermining the factual bases and legal integrity for the development limits that were enacted more than 25 years ago as a result of litigation and binding legal findings that the ability of the Keys ecological and evacuation carrying capacity to accommodate development had already been exceeded. These findings and rulings remain binding and critical to the survival of the Florida Keys. Given this context, increasing the amount of residential development that can be built in the Keys would eviscerate all of this meticulous, hard-won but necessary and sustainable planning by the state and local governments. It would violate the key requirements of both the Community Planning Act and the Florida Keys Area of Critical Concern laws that required and resulted in the current County and City comprehensive plans that are based on limited growth as determined by the carrying capacity analysis. The overwhelming amount of planning and study that led to the inescapable conclusion that the current development limits were required to save lives and property and protect the ecology that is the very basis for the Keys way of life and economy cannot now just be disregarded. The law requires rigorous data and analysis to demonstrate that any increases in development in the Keys can be accommodated within these legally - required human safety and environmental constraints. Any increase in the number of development permits outside of the current framework runs the great risk of completely undermining the legal basis for all of the comprehensive plans in the Keys. The compelling and rigorous evacuation and ecological science-based determinations have supported the annual development caps in the Keys all these years in the face of legal challenges. If the state and local governments simply start increasing those numbers outside of that careful framework,the integrity and comprehensive nature of those plans may lose their defensibility and become arbitrary in the eyes of a court. 17 On June 6, 2018, Monroe County planning staff wrote a letter to Dept. of Economic Opportunity Executive Director Cissy Proctor,raising this very issue relative to the then-proposed 1300 -unit ROG increase: "The issuance of an additional 1300 allocations for rental workforce housing appears to undermine the whole process under which Monroe County has been regulating growth since the implementation of the Rate of Growth Ordinance (ROGO). Please explain how this is consistent with our current policy structure." (emphasis added) The strongest and most successful property rights defense available to the Keys local governments has been that the development allocation limits were necessary to maintain a safe evacuation time and prevent a collapse of the environment upon which the Keys economy and way of life is based. Considering both the fairness to those who have been denied allocations in the past, and the inability to credibly rely on this defense in the future given the unanswered questions raised above, increasing the development allocations now could have devastating long -term implications for the land use framework for the entire Florida Keys. Conclusion Local governments enjoy much greater ability and responsibility under bother constitutional and statutory property rights doctrines to protect the public than is commonly understood. The law of property rights, for a variety of reasons, has tended to take on a role in public discussions that exceeds its actual legal impact. It is a nuanced body of law to be applied carefully in individual situations to prevent unfair and overly burdensome applications of regulation to individual landowners — not a broad, categorical yoke of financial liability for all strict regulation. The defenses available to local and state agencies in the Florida Keys are particularly strong. In my view, no community in the country has a stronger set of defenses to "takings" claims than those in the Keys, where the development caps are necessary not only to protect the function of a coastal ecosystem that is the very basis of the economy and unique character of the Keys, but also to protect human life itself. "Takings law" does not diminish the responsibility and ability to enact and maintain the land use regulations necessary to protect the public from the fiscal, social, safety, ecological and other impacts of the development of private property. Nor does it insulate landowners from the application of laws that apply fairly and evenly to similarly situated landowners in a highly regulated, ecologically fragile, infrastructure — limited and hurricane and sea level rise - prone chain of low -lying islands. This analysis of property rights law counsels strongly against an assumption that the local governments in the Keys will be required to pay "takings"judgments for every vacant lot in the Keys that ultimately cannot be built upon because of the ROGO/BPAS development limitations. Given the strength of the law on the side of the government's interests, the true extent of property rights liability, and the reasonably expected compensation amounts is likely to be far lower than many assume. The number of vacant lots, how many of them are owned by the same entity (or were, prior to the enactment of significant development restrictions like ROGO/ BPAS), when they were purchased (and for what price), the current value as regulated, the natural and 18 environmental character of the land, and other unique facts about each situation must be known before it can be assumed compensation would be due for the inability to build on the lot. On top of those considerations, there are likely a significant number of vacant lots in the Keys that could not develop as a result of federal or state regulatory restrictions, even if they could be developed under local government comprehensive plans and codes. Local government "takings" liability would be reduced to that extent as well. What's more, any liability on the "takings" side of the ledger must be considered in the context of the enormous price tag that governments in the Keys face to support development. As has become increasingly clear,the costs of maintain in and elevating roads in face of sea level rise in the Keys is exorbitant. So must the costs of maintaining adequate sewage and stormwater treatment, storm and hurricane damage clean-up and other public services be considered. The reality that each new major structure built in the Keys creates a public fiscal demand must be considered as the contra-consideration to theoretical takings liability. 19 County Q �y o)l jl BOARD OF COUNTY COMMISSIONERS 1Yk Mayor David Rice. L)sbict 4 lc�le Ot'l(�c`i keys 2 Mawr Prol'ent SxIvia J durphy. District 5 f)amt) [.. €ColEtage, District I Oeorge Neugent.District 2 ' I leather Canuthets,District 3 June 6, 2018 Cissy Proctor, Executive Director Department of Economic Opportunity 107 East Madison Street Caldwell Building Tallahassee, Florida 32399 RE: Keys Workforce Housing Initiative — potential 1300 additional affordable workforce housing allocations Dear Ms. Proctor: This letter shall serve as follow up to the Press Release issued on May 2,2018 from the office of Governor Scott regarding a directive to the Department of Economic Opportunity (DEO) for the Keys Workforce Housing Initiative. The initiative would allow 1,300 additional building permits throughout the Florida Keys for rental workforce housing, with a condition that the rental occupants evacuate in the early phase (48-hour window) of Hurricane Evacuation so that the 24-hour mandatory evacuation will still be met. Following two public discussions before the Monroe County Board of County Commissioners, which were held on May 10, 2018 and May 16, 2018, as well as a meeting with Barbara Powell, Program Manager, Area of Critical State Concern, and County staff, the County offers the following continents and questions. To be, clear, the County Commission has not taken a vote regarding an official County position on the Governor's proposal due to a number of questions and concerns,expressed below. Comments I. Prospective tenants of the rental workforce housing include employees who work in retail and service-related industries,who may not be able to evacuate early due to financial constraints and lack of paid time off. 2. The issuance of an additional 1,300 allocations for rental workforce housing appears to undermine the whole process by which Monroe County has been regulating growth since the implementation of the Rate of Growth Ordinance (ROGO). Please explain how this is consistent with our current policy stricture. 3. The acceptance of the 1,300 rental workforce units may set a precedent for further distributions of additional allocations(up to the point where the remaining 6.5 hours in the 48-hour evacuation please would be exhausted)from the State rather than a dedication of funding for land acquisition, to resolve issues resulting from the state-regulated growth through ROGO. 4. The County has utilized ROGO as a mechanism to allow controlled growth while balancing the protection of the unique environmental habitats. The proposed initiative may weaken a system that has been operating to control growth for 30 years, which is the very reason so many visitors travel to the Florida Keys. 5. The Count), is concerned about enforcement of required evacuation for units awarded under the proposed program and how property owners would force tenants to evacuate. 6. The State should review data to determine how quickly storms strengthen or dissipate before they make landfall,prior to authorizing this program. 7. There is concern that tenants of the proposed rental workforce housing may be the employees who work in businesses that stay open until hu rricane-force winds arrive.There is a concern that these residents may not be as economically flexible to leave the County on a repeated basis during the first phase of hurricane evacuation. 8. The addition of 1,300 workforce units that will house pennanent residents who are required to evacuate during the first phase adds a new group to the first phase of evacuation, and may negatively impact the evacuation of permanent residents within the 24-hour time period. 9. The acceptance of the 1,300 rental workforce units may set a precedent for further distribution, leading to increased development throughout the County as additional allocations are requested and granted. 10. The addition of 1,300 workforce housing units within the County may increase traffic congestion. 11. Any additional workforce housing units may stress the County's infrastructure. 12. The state should review the number of allocations available through 2023 for each municipality within the ACSC. 13. There is concern that the proposed units may affect the Keys' carrying capacity. 14. The County seeks additional guidance on the workforce rental units including income level limits and types of housing that would be permitted under this proposed program. Questions and Requests for Further Information I. The initiative states that it is intended to serve "the workforce population." Please define the tern "workforce population." 2. Please advise if the workforce housing initiative is part ofthe State's assistance in recovering from Hurricane Irma. 3. Clarify if the proposed allocations can be restricted to people who earn 70%of their income in Monroe County,especially in light of the fact that these units may be used for CDBG-DR funded projects or LIHTC projects. 4. Please clarif},the difference between CDBG-DR finding and CDBG fiunding. 5. Please detail the requirements of the property management rental agreements and who is responsible to ensure evacuations occur during the first phase. 6. Clarify if businesses would be encouraged to close earlier to facilitate evacuation. 7. Clarify in which phase of the hurricane evacuation model RVs are counted, and if there is acknowledgement that these units are often known to be used as de facto affordable housing. 8. Please indicate how the workforce housing initiative comports with existing laws, including but not limited to F.S. 380.0552(9)(a)2, which imposes a requirement of a hurricane evacuation clearance time for permanent residents of no more than 24 hours. Page 2 of 3 i 9. Please confirm that DEO will not engage in rulc€raking to replace the number and distribution of ROGO allocations set forth in F.A.C. 28-20.140(2) in order to implement this initiative and will instead process amendments to the comprehensive plan proposed by local governments which would amend the requirements set forth in that administrative rule even though that local amendment will contain test that would differ from the c€iTent tent set forth in F.A.C. 28- 20.140(2) and thus will be inconsistent with the rule. Stated differently, would a local government's amendment to its comprehensive plan be able to conflict with the language that appears in the Florida Administrative Code'? We look forward to working with DEO through this process. If you have any questions or if I can provide any clarification,please feel free to contact me. 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