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Item S2 �s S.2 r`, County of Monroe �y,4 ' �, "tr, BOARD OF COUNTY COMMISSIONERS County �a� Mayor Michelle Coldiron,District 2 �1 nff `ll Mayor Pro Tem David Rice,District 4 -Me Florida Keys ) �' Craig cares,District l Eddie Martinez,District 3 w Mike Forster,District 5 County Commission Meeting April 21, 2021 Agenda Item Number: S.2 Agenda Item Summary #8041 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 County Land Development Code amending the Section 138-24, Residential ROGO Allocations, to establish a new building permit allocation category to award 300 workforce housing early evacuation unit building permit allocations pursuant to the Workforce-Affordable Housing Initiative (authorized by the Florida Administration Commission and the Florida Department Economic Opportunity) and to establish the specific Workforce Initiative exchange 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 2020-068). ITEM BACKGROUND: This item includes the proposed Land Development Code (LDC) amendment to Section 138-24, Residential ROGO Allocations, to establish a new building permit allocation category to 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 and to establish the specific Workforce Initiative requirements. The proposed LDC amendment is consistent with the Comprehensive Plan amendment, creating a process for the 300 workforce housing early evacuation units to be used in exchange for existing affordable allocations (for developers that agree to the early evacuation restriction) and the affordable housing allocations are returned to the County (returned in the exchange) be set aside and banked for takings cases (bank them within an administrative relief pool). This proposed LDC text amendment is necessary to be consistent with the proposed comprehensive plan amendment. Sections 163.3194 and 163.3201, F.S., require land development regulations to be consistent with and implement the Comprehensive Plan. 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 comprehensive plan 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 Packet Pg. 3855 S.2 agreement; instead, requiring a resolution approving a contract. DEO reviewed the comprehensive plan 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." On April 21, 2021, the BOCC is holding a public hearing to consider adoption of both the comprehensive plan amendment and the Land Development Code amendment for the Workforce- Affordable Housing Initiative (Workforce Initiative). On May 2, 2018, Governor Rick Scott issued a press release outlining an initiative to the Department of Economic Opportunity ("DEO") for a Keys Workforce Housing Initiative. The proposed initiative would allow 1,300 additional Rate of Growth Ordinance ("ROGO") allocations throughout the Florida Keys ("ROGOs" or `Building Permit Allocation System(s)") for rental workforce housing, with a condition that the rental occupants evacuate in the early phase (48-hour window) of a hurricane evacuation. Any development receiving the units would be required to sign a rental management agreement indicating they would be required to assure and ensure the evacuation of all occupants of the development. Under the initiative, each jurisdiction would be eligible to receive up to 300 of these units. The press release specifically stated, "To meet the increased demand for workforce housing, the innovative Keys Workforce Housing Initiative will require new construction that participates to commit to evacuating renters in the 48-hour window of evacuation." On June 13, 2018, the Florida Administration Commission approved the Workforce Housing Initiative. It was noted that Florida Keys' local governments that choose to participate in the initiative are to work with DEO to amend their respective comprehensive plans to allow for 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 Packet Pg. 3856 S.2 Policy 101.3.12 to establish the specific Workforce Initiative requirements. On the February 19, 2020, BOCC meeting, the BOCC discussed whether to direct staff to process a Comprehensive Plan and Land Development Code amendment to: 1) Move a portion of the 378 remaining Market Rate - Rate of Growth Ordinance (ROGO) units through 2026 to the Affordable Housing allocation pool and/or 2) Accept the 300 Workforce Housing units offered by the Department of Economic Opportunity (DEO) required to evacuate in Phase 1 of the hurricane evacuation model. The BOCC did not decide on the potential shifting of market rate allocations to the affordable housing pool (BOCC wanted staff to develop a menu of options). Additionally, the BOCC directed staff to start the process to accept the 300 workforce housing units. On July 15, 2020, during a discussion item on potentially shifting market rate allocations to the affordable housing pool (Agenda Item I5), the BOCC provided further direction to staff on accepting the 300 workforce housing early evacuation unit building permit allocations. The BOCC directed: Accept the .300 }ti°or~Icf trRc°e housing itrg earl ' evuc°ttution ulat hrtilding per n it allegations to he used in exchange ftr~ existing gl1brdahle allocutions ut 177111tifuin ilY' develcpn7etrts (ftrR developers that agree to the earl ' evuc°ttution restriction) and the gl1br dahle housing allocutions returned to the Corttr j (returned in the exchange) he ,set aside and hutrked fctrR takings cases (hank theln Within an a do ilastr alive relief'Pool). 'ri, Dr posed 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 Packet Pg. 3857 S.2 o units must be used based on the original approved affordable housing income category or a lesser income category. • Workforce (affordable) housing unit occupants required to evacuate in Phase 1 of the 48-hr evacuation. • Workforce (affordable) housing unit require onsite property management with property managers trained in evacuation procedures and required to manage the evacuation of tenants in Phase I of an evacuation. • Property management entity required to annually verify the employment and income eligibility of tenants; report the total units on the site, the occupancy rates of units, and tenant compliance with the requirement to evacuate the units in Phase I of an evacuation, including the number of occupants that are exempt from the evacuation requirements. First responders may be exempted. • Workforce (affordable) housing units must be located within Tier III, not be located in the V- Zone or within a Coastal Barrier Resource System (CBRS), located on a property which has all infrastructure available, and meet ADA Compliance requirements. o Use of banked existing affordable allocations/exemptions also requires units to be located within Tier III, not be located in the V-Zone or within a Coastal Barrier Resource System (CBRS) (these are existing AFH requirements). PREVIOUS RELEVANT BOCC ACTION: On May 2, 2018, Governor Rick Scott issued a press release outlining an initiative to the Florida Department of Economic Opportunity ("DEO") for a Keys Workforce Housing Initiative, allowing 1,300 additional Rate of Growth Ordinance (ROGO) allocations throughout the Florida Keys (ROGOs or Building Permit Allocation Systems). Commissioner Rice calls a special meeting for May 10, 2018, at 11 A.M. in Marathon to provide the Commission and the public an opportunity to discuss the proposal prior to the Cabinet meeting (May 15, 2018). At the May 10, 2018, Special BOCC Meeting, the BOCC directed County staff to discuss concerns identified with DEO and provide an update to the BOCC at the next meeting. On May 16, 2018, the County Attorney provided the BOCC a report on the Governor's proposal for 1,300 additional ROGO allocations following her meeting with DEO and state level staff. He advised the Board that they have a cabinet meeting scheduled for June 13, 2018 to discuss the allocations further. On May 16, 2018, the BOCC directed County staff to present the Board's questions and concerns regarding the Workforce Initiative at the meeting with the Cabinet on June 13, 2018. On June 6, 2018, the County sends a letter to DEO providing County comments and questions on the Keys Workforce Housing Initiative. On June 13, 2018, the Florida Administration Commission approved the Workforce Housing Initiative. Florida Keys'local governments that choose to participate in the initiative will work with DEO to amend their respective comprehensive plans to allow for additional building permits for rental workforce housing with the condition of early evacuation. On August 15, 2018, the BOCC directed County staff to prepare a discussion and direction item Packet Pg. 3858 S.2 regarding the Keys Workforce Housing Initiative for the September 19, 2018 regular BOCC meeting. On September 19, 2018, the BOCC directed County staff to draft proposed policy alternatives to the State's initiative that address several concerns raised related to the enforceability of the evacuation provisions. Additionally, the BOCC asked the County Attorney to research whether the state's Florida Keys Workforce Housing Initiative, which, if implemented, would create a "precedent" that would require the state to award as many as 10,000 additional units in the future versus the liability of not accepting the units under the State's initiative. During the discussion, the County Attorney stated accepting the units means fewer takings cases (less potential for cases). On January 30, 2019, the BOCC considered options to accept the 300 units. Staff drafted three (3) options for consideration by the BOCC: 1. Do not accept the 300 early evacuation affordable ROGOs and extend ROGO allocations through 2026; 2. Accept the 300 early evacuation affordable ROGOs and extend ROGO allocations until 2026; and 3. Accept the 300 early evacuation affordable ROGOs and do not extend ROGO beyond 2023. On January 30, 2019, the BOCC discussed and provided direction regarding existing and potential actions, policies and programs to address exhaustion of ROGO allocations and build out of the Florida Keys as of 2023 with a substantial number of platted lots remaining. The discussion involved existing and potential actions, policies and programs; as well as ideas for policy changes to alleviate potential takings liability, if and when the DEO is no longer able to award ROGO allocations to the County. On January 22, 2020, the BOCC adopted Ordinance No. 005-2020 to extend the remaining market rate ROGOs out for an additional three (3)years from 2023 to 2026. On January 22, 2020, the BOCC directed staff to prepare an agenda item to discuss and provide direction on whether to direct staff to process Comprehensive Plan and Land Development Code amendments to: 1) Move a portion of market-rate Rate Of Growth Ordinance (ROGO) units to the affordable housing allocation pool and/or 2) accept the 300 Workforce Housing units offered by the Department of Economic Opportunity (DEO) required to evacuate in Phase 1 of the Hurricane Evacuation model. On February 19, 2020, the BOCC discussed whether to direct staff to process a Comprehensive Plan and Land Development Code amendment to: 1) Move a portion of the 378 remaining Market Rate - Rate of Growth Ordinance (ROGO) units through 2026 to the Affordable Housing allocation pool and/or 2) accept the 300 Workforce Housing units offered by the Department of Economic Opportunity (DEO) required to evacuate in Phase 1 of the hurricane evacuation model. The BOCC did not decide on the potential shifting of market rate allocations to the affordable housing pool but did direct staff to start the process to accept the 300 workforce housing units. On April 15, 2020, the BOCC adopted Resolution No. 100-2020 providing for a temporary suspension of the expiration of ROGO and NROGO allocation awards, issuance of allocation award letters, deferring administrative relief application deadlines, and deferring the processing of new and existing ROGO and NROGO applications and Planning Commission review due to the impacts of COVID-19 (the novel coronavirus). Packet Pg. 3859 S.2 On July 15, 2020, during a discussion item on potentially shifting market rate allocations to the affordable housing pool (Agenda Item I5), the BOCC provided further direction to staff on accepting the 300 workforce housing early evacuation unit building permit allocations. The BOCC directed: Accept the 300 workforce housing early evacuation unit building permit allocations to be used in exchange for existing affordable allocations at multifamily developments (for developers that agree to the early evacuation restriction) and the affordable housing allocations returned to the County (returned in the exchange) be set aside and banked for takings cases (bank them within an administrative relief pooh 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: 2020-068_ORDINANCE_LDC_workforce early evac_ADOPTION 2020-068_StaffReport_LDC_300 workforce early evac_BOCC_ADOPTION Ex. 1_Gov.Scott Press Release Ex. 2 DEO_DRAFT_Language_WORKFORCE-AFFORDABLE_Moco Ex. 3 Takings Claims Bill Whitepaper January 2020 Ex. 4 ALJ's recommended order for 300 ROGO_recommend in-compliance Ex. 5 Islamorada ORD 19-03 19-OIACSC Ex. 6 Marathon ORD 2018-09 18-OIACSC Ex. 7 Key West ORD 19-06_18-04ACSC Ex. 8 Summary of County Actions on the 300 Workforce early evac units_7.30.20 Packet Pg. 3860 S.2 Ex. 9 DEO Final Order upholding city amendments LDC Ordinance FINANCIAL IMPACT: 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 2:27 PM Assistant County Administrator Christine Hurley Completed 04/01/2021 11:57 AM Peter Morris Completed 04/05/2021 2:27 PM Purchasing Completed 04/05/2021 2:28 PM Budget and Finance Completed 04/05/2021 4:41 PM Maria Slavik Completed 04/05/2021 4:41 PM Liz Yongue Completed 04/06/2021 9:46 AM Board of County Commissioners Pending 04/21/2021 9:00 AM Packet Pg. 3861 S.2.ai 1 �10 ' 2 11. 3 ,tea 4 c, 5 6 MONROE COUNTY, FLORIDA 7 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS 8 9 ORDINANCE NO. -2021 10 11 A RESOLUTION BY THE MONROE COUNTY PLANNING COMMISSION 12 RECOMMENDING APPROVAL OF AN ORDINANCE BY MONROE 13 COUNTY BOARD OF COUNTY COMMISSIONERS ADOPTING 14 AMENDMENTS TO THE MONROE COUNTY LAND DEVELOPMENT 15 CODE AMENDING THE SECTION 138-24, RESIDENTIAL ROGO v 16 ALLOCATIONS, TO ESTABLISH A NEW BUILDING PERMIT 17 ALLOCATION CATEGORY TO AWARD 300 WORKFORCE HOUSING 18 EARLY EVACUATION UNIT BUILDING PERMIT ALLOCATIONS 4- 19 PURSUANT TO THE WORKFORCE-AFFORDABLE HOUSINGle 20 INITIATIVE (WORKFORCE INITIATIVE) AUTHORIZED BY THE c 21 FLORIDA ADMINISTRATION COMMISSION AND THE FLORIDACD 22 DEPARTMENT ECONOMIC OPPORTUNITY AND TO ESTABLISH THE W 23 SPECIFIC WORKFORCE INITIATIVE REQUIREMENTS; PROVIDING 24 FOR SEVERABILITY; PROVIDING FOR REPEAL OF CONFLICTING 25 PROVISIONS; PROVIDING FOR TRANSMITTAL TO THE STATE LAND 26 PLANNING AGENCY AND THE SECRETARY OF STATE; PROVIDING i 27 FOR AMENDMENT TO AND INCORPORATION IN THE MONROE 28 COUNTY LAND DEVELOPMENT CODE; PROVIDING FOR AN 29 EFFECTIVE DATE. (FILE NO. 2020-068) 30 31 2 32 WHEREAS,pursuant to Article 8 of the Florida Constitution and Section 125.66, Florida 4- 33 Statutes, Monroe County possesses the police powers to enact ordinances in order to protect the 0 34 health, safety, and welfare of the County's citizens; and 35 p 36 WHEREAS, Florida Statute § 380.0552., the Florida Keys Area protection and 37 designation as area of critical state concern, establishes the intent to"ensure that the population of t� 38 the Florida Keys can be safely evacuated", Florida Statute § 380.0552(2)(j), and requires that 39 amendments to each local government's comprehensive plan to include "goals, objectives, and Z 40 policies" to protect public safety and welfare in the event of a natural disaster by maintaining a W 41 hurricane evacuation clearance time for permanent residents of no more than 24 hours; and 0o� 42 CD 43 WHEREAS,the County adopted a Permit Allocation System known as the Rate of Growth 44 Ordinance (ROGO) in order to provide for the safety of residents in the event of a hurricane 45 evacuation and to protect the significant natural resources of Monroe County, as required by the 46 State of Florida; and E 47 Ordinance No. -2021 Page 1 of 12 File 2020-068 Packet Pg. 3862 S.2.ai I WHEREAS, on May 2, 2018, Governor Rick Scott issued a press release outlining an S 2 initiative to the Florida Department of Economic Opportunity ("DEO") for a Keys Workforce 3 Housing Initiative to allow 1,300 additional Rate of Growth Ordinance allocations ("ROGO 4 allocations") throughout the Florida Keys for rental workforce housing, with a condition that the t� 5 rental occupants evacuate in the early phase (48-hour window) of a hurricane evacuation; and 6 N 7 WHEREAS, on June 13, 2018, the Florida Administration Commission approved the 8 Workforce Housing Initiative, after presentation by DEO that the Phase I evacuation (under the 9 existing staged evacuation plan) can be accomplished in 17.5 hours, leaving additional capacity of ° 10 6.5 hours in Phase I; and 11 > 12 WHEREAS,the Florida Keys face the quadruple impact of high land values, land limited 13 by geographic and environmental features,housing supply limited by controlled growth(including 14 but not limited to the Rate of Growth Ordinance) and a tourism economy with a prevalence of 15 lower paying service-sector employment; and 16 c 17 WHEREAS, the need to protect and preserve an adequate inventory of 18 affordable/workforce accessible housing is a continual as well as a growing challenge in the 0 19 Florida Keys,particularly after the impacts of Hurricane Irma which caused significant damage to 20 housing units throughout the Florida Keys; and ?: 21 CD 22 WHEREAS,on September 19,2018,the Monroe County Board of County Commissioners C 23 ("BOCC", "Monroe County", or the "County") directed County staff to draft proposed policy 24 alternatives to the State's Keys Workforce Housing Initiative that address several concerns raised CL 25 related to the enforceability of the evacuation provisions; and 26 i 27 WHEREAS, on January 30, 2019, the BOCC considered options to accept the 300 units 28 but took no official action; and 29 30 WHEREAS, on January 22, 2020, the BOCC directed staff to prepare an agenda item to 31 discuss and provide direction on whether to direct staff to process Comprehensive Plan and Land 2 32 Development Code amendments to: j) Move a portion of market-rate ROGO units to the 4- 33 affordable housing allocation pool and/or 2) Accept the 300 Workforce Housing units offered by 0 34 the Department of Economic Opportunity required to evacuate in Phase 1 of the Hurricane UI 35 Evacuation model; and 36 uo� 37 WHEREAS, on February 19, 2020,the BOCC discussed whether to direct staff to process 38 a comprehensive plan and land development code amendment to: L Move a portion of the 378 z 39 remaining Market Rate -Rate of Growth Ordinance(ROGO)units through 2026 to the Affordable 40 Housing allocation pool and/or 2) Accept the 300 Workforce Housing units offered by the DEO 41 required to evacuate in Phase 1 of the hurricane evacuation model. The BOCC did not decide on col 42 the potential shifting of market rate allocations to the affordable housing pool but did direct staff 43 to start the process to accept the 300 workforce housing units; and 44 N 45 WHEREAS, on July 15,2020, during a discussion item on potentially shifting market rate 46 allocations to the affordable housing pool, the BOCC provided further direction to staff on E 47 accepting the 300 workforce housing early evacuation unit building permit allocations. The BOCC Ordinance No. -2021 Page 2 of 12 File 2020-068 Packet Pg. 3863 S.2.ai I directed: Accept the 300 workforce housing early evacuation unit building permit allocations to S 2 be used in exchange for existing affordable allocations at multifamily developments (for 3 developers that agree to the early evacuation restriction) and the affordable housing allocations 4 returned to the County (returned in the exchange) be set aside and banked for takings cases (bank t� 5 them within an administrative relief pool); and 6 N 7 WHEREAS, Monroe County policies and regulations adopted in the Monroe County 8 Comprehensive Plan and Land Development Code are to maintain public health, safety, and 9 welfare of the citizens of the Florida Keys and to strengthen our local government capability to ° 10 manage land use and development; and 11 > 12 WHEREAS,the Monroe County Development Review Committee("DRC")reviewed and 13 considered the proposed amendments at a regularly scheduled meeting held on the August 25, 14 2020; and 15 N 16 WHEREAS, at a regularly scheduled meeting held on October 28, 2020, the Monroe County 0 17 Planning Commission held a public hearing for the purpose of considering the proposed 18 amendment and provided for public comment; and 0 19 -19 20 WHEREAS, the Monroe County Planning Commission adopted Resolution No. P 30-20, c 21 recommending approval for the proposed amendment, with edits identified in the resolution; andCD 22 23 WHEREAS, at a regularly scheduled meeting held on April 21, 2021, the Monroe County 24 Board of County Commissioners held a public hearing, considered the staff report, and provided CL 25 for public comment and public participation in accordance with the requirements of state law and 0 26 the procedures adopted for public participation in the planning process; and 27 28 WHEREAS, based upon the documentation submitted and information provided in the 29 accompanying staff report, the Monroe County Board of County Commissioners makes the 30 following findings of fact and conclusions of law: 31 2 32 1. The proposed amendment is consistent with the Goals, Objectives and Policies of the 4- 33 Monroe County Year 2030 Comprehensive Plan; and 0 34 2. The proposed amendment is consistent with the Principles for Guiding Development 35 for the Florida Keys Area of Critical State Concern, Florida Statute § 380.0552(7); and 36 3. The proposed amendment is consistent with Part 11 of Chapter 163, Florida Statutes; 37 and 38 4. The proposed amendment is necessary due to new issues and the need for additional 39 detail or comprehensiveness, as required by Section 102-158 of the Monroe County 40 Code. 0 41 i 42 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY CD 43 COMMISSIONERS OF MONROE COUNTY, FLORIDA: CD 44 N 45 Section 1. Recitals and Legislative Intent. The foregoing recitals and statements of 46 legislative intent are true and correct and are hereby incorporated as if fully stated herein. E 47 Ordinance No. -2021 Page 3 of 12 File 2020-068 Packet Pg. 3864 S.2.ai I Section 2. The Monroe County Land Development Code is hereby amended as follows: 2 0 Proposed Amendment: deletions are stfi ke *h- additions are shown in underlined. 3 4 N 5 Sec. 138-24. -Residential ROGO Allocations. 6 (a) Number of available annual residential ROGO allocations. The number of market rate 7 residential ROGO allocations available in each subarea of the unincorporated county and the 8 total number of affordable residential ROGO allocations act___workf`orce,___li.ousing e���lv � 9 cvamc-uati-on-- it_allocations available countywide shall be as follows: 10 Number of D elling Units Subarea ROGO Years: ROGO Years: July 13, 2020-July 12, 2021 July 13, 2023-July 12, 2024 July 13, 2021-July 12, 2022 July 13, 2024-July 12, 2025 0 July 13, 2022-July 12, 2023 July 13, 2025-July 12, 2026 Upper Keys 31 30 0 Lower Keys 29 28 -19 Big Pine and No Name Keys 4 4 c Total market rate 64 62 A,fordable Dwelling Units Very Low, Low, and Median Incomes 360 a. Moderate Incomes 350* *Includes one annually for Big Pine Key and No Name Key Workforce Initiative 3 -r* � ** Work fozc ..tau... c. zly evaCUatiarl Urlit alloc;atioris small lie distributed on a first-come first-serve � f srs F�c.cl:ucSts farce llrrr47 units do�c la ec rrrci/az cic c c zc Stzrc tc c art l rr 7 th e�orkfaz c r ��ausrr�<7 e l ce aCUat arl url t allocatarrsar s ._. ... .. 138.2 ..Cl 11 Annual Allocation i ROGO Year Workforce Affordable Market Rate Initiative. Housing U July 13, 2013—July 12,2014 126 71 U: 61, L: 57, BPK/NNK 8 July 13, 2014—July 12,2015 126 71 U: 61 L: 57 BPK/NNK 8 co W CD July 13, 2015—July 12,2016 126 N/A U: 61, L: 57, BPK/NNK 8 126 July 13 2016—July 12 2017 U: 61, L: 57, BPK/NNK 8 July 13, 2017—July 12,2018 126 Ordinance No. -2021 Page 4 of 12 File 2020-068 Packet Pg. 3865 S.2.ai U: 61, L: 57, BPK/NNK 8 0 126 126 568 total AFH 0 July 13, 2018-July 12,2019 (total available U: 61, L: 57, BPK/NNK 8 immediately) July 13, 2019-July 12,2020 126 _j U: 61, L: 57, BPK/NNK 8 N July 13, 2020-July 12,2021 64 U: 31, L:29, BPK/NNK 4 � 0 July 13, 2021-July 12,2022 64 U: 31, L:29, BPK/NNK 4 July 13, 2022-July 12,2023 64 U: 31, L:29, BPK/NNK 4 July 13, 2023-July 12,2024 62 3 ** C U: 30, L:28, BPK/NNK 4 .. CD July 13, 2024-July 12,2025 62 0 c U: 30, L:28, BPK/NNK 4 62 0 July 13, 2025-July 12,2026 c U: 30, L:28, BPK/NNK 4 0 TOTAL 1,260 3 * 710* *Includes two annual affordable ROGO allocations for the Big Pine Key/No Name Key subarea) c� through the Incidental Take Permit(ITP) ending in 2023. z *.* Workforce hoUs'IU, c�zl evacnatiar� trr�lt allacatlar�s shall lie cllstzll��rtecl are � first-come first-serve eCL ® basis RCCILIcsts for d ellinC7 Units c c�c la ec r cl/at c eec..:t Stz c-tech �It l r C7 t e azlcfazce aus r 7 l:ly' c�ac uatmrl urlit allocatiaris a c sulr ect to tl e nzavlslans of Pal cv ,l;`}l 3 l 2 1 > 2 The State of Florida, pursuant to Administration Commission Rules, may modify the annual 3 allocation rate The County amclmo 0ted a slower rate of` annual allocations for market rate � 4 develt� ent to extend the allocation ti efra e to 2026 without exceed'm4 the total of` 1,970 5 allocations, By By July 12 2f23mmif substantial financial support is provided by State and 6 Federal partners, the County may reevaluate the ROGO distribution allocation schedule and 0 7 consider an extended timeframe for the distribution of market rate allocations. If necessary, 8 Monroe County will request a Rule change from the Administration Commission to authorize 9 an alternative allocation timeframe and rate. 10 (1) Yearly residential ROGO allocation ratio. Each subarea shall have its number of market z 11 rate residential ROGO allocations available per ROGO year. Affordable ROGO < 12 allocations and workforce],Igllsin 4 early evacuation unit allocations shall be available for _.............................................................. ......................... 13 countywide allocation except for Big Pine Key and No Name Key. The allocations for 14 Big Pine Key and No Name Key shall be limited to maximums established in Big Pine co 15 Key/No Name Key Livable CommuniKeys Plan, Incidental Take Permit and Habitat 16 Conservation Plan. 17 (2) Quarterly residential ROGO allocation ratio. Each subarea shall have its number of 18 market rate housing residential ROGO allocations available per ROGO quarter 19 determined by the following formula: E Ordinance No. -2021 Page 5 of 12 File 2020-068 Packet Pg. 3866 S.2.ai I a. Market rate residential ROGO allocations available in each subarea per quarter is equal S 2 to the market rate residential ROGO allocations available in each subarea divided by 3 four. 4 b. Affordable housing residential ROGO for all four ROGO quarters, including the t� 5 allocations available for Big Pine Key, shall be made available at the beginning of 6 the first quarter for a ROGO year. Beginning July 13, 2016, the balance of all 7 remaining affordable housing residential ROGO allocations shall be made available 8 for award. 9 c: orkforce..lnitiative allocations sf1a11 be made available at the beginning of the first 10 clL aster cif` RC3C.1C3 veal __ L11v lm3 202.1m____ July 12. 2022_ All allocations s1�a11 mbe � 11 available for award. and slralh��be clistribrrtecl c>n�� ��first�c t» e first serve basis. _......................................................................................... 12 ReniLlests__f`t.)r__workft.)rce li-ousing_early---evac-u-ation---nit__a11_ocat on-s s-IiAI _ILC lirema 13 reservation vi.a.BOCC'resolution m m _ � 14 (3)Ratio ofvery low income, low income, and median income allocations to moderate income 15 allocations. The Planning Commission may amend these proportions for affordable 16 housing during any ROGO quarter. 0 17 (4)Big Pine Key and No Name Key. 18 a. All allocation awards on Big Pine Key and No Name Key are subject to the provisions 0 19 of the Incidental Take Permit (ITP), the Habitat Conservation Plan (HCP) and 2- 20 Livable CommuniKeys Plan (LCP) for the Florida Key Deer and other covered ?: CD 21 species, which may affect ROGO allocations under this article. 22 b. In the Big Pine Key/No Name Key sub-area the annual maximum number of residential 23 permit allocations that may be awarded in Tier I shall be no more than one (1) every 24 2 years. Until the ITP, HCP, Biological Opinion, and LCP are amended, a propertyCL 25 owner attempting to develop his property may be granted an allocation through the 0 26 ROGO process that may be used once that property owner obtains all required 27 permits and authorizations required under the Endangered Species Act and other 28 applicable federal and state laws. The allocation will remain valid so long as the 29 applicant diligently and in good faith continues to work with USFWS to conclude 30 the coordination and pick up a building permit. 31 (5)Limit on number of allocation awards in Tier L 2 32 a. Big Pine Key/No Name Key subarea: The maximum ROGO allocations in Tier I shall 4- 33 be no more than one (1) every two (2)years. c 34 b. Upper Keys subarea: The annual maximum ROGO allocations in Tier I shall be no t� 35 more than three (3). 36 c. Lower Keys subarea: The annual maximum ROGO allocations in Tier I shall be no 37 more than three (3). z 38 (b) Reservation of affordable housing allocations. Notwithstanding the provisions of Section z 39 138-26 for awarding of affordable housing allocations or workforce initiative__ __ ,__(wt�r���tcvice, 40 housing early ev mcr a t>12 l it allocations, the BOCC may reserve by resolution some or all 41 of the available affordable housing allocations or available workforce initiative allocations for co CD 42 award to certain sponsoring agencies or specific housing programs consistent with all other CD 43 requirements of this chapter. Building permits for these reserved allocations shall be picked N 44 up within six months of the effective reservation date, unless otherwise authorized by the 45 BOCC in its resolution. The BOCC may, at its discretion,place conditions on any reservation a 46 as it deems appropriate. These reservations may be authorized by the BOCC for: Ordinance No. -2021 Page 6 of 12 File 2020-068 Packet Pg. 3867 S.2.ai 1 (1) The county housing authority, nonprofit community development organizations,pursuant S 2 to Section 139-1(e), and other public entities established to provide affordable housing 3 by entering into a memorandum of understanding with one or more of these agencies; 4 (2) Specific affordable or employee housing projects participating in a federal/state housing t� 5 financial assistance or tax credit program or receiving some form of direct financial 6 assistance from the county upon written request from the project sponsor and approved 7 by resolution of the BOCC; 8 (3) Specific affordable or employee housing projects sponsored by nongovernmental not-for- 9 profit organizations above upon written request from the project sponsor and approved 10 by resolution of the BOCC; 11 (4) Specific affordable or employee housing programs sponsored by the county pursuant to 12 procedures and guidelines as may be established from time to time by the BOCC; 13 (5) Specific affordable or employee housing projects by any entity, organization, or person, 14 contingent upon transfer of ownership of the underlying land for the affordable housing 15 project to the county, a not-for-profit community development organization, or any other 16 entity approved by the BOCC, upon written request from the project sponsor and 0 17 approved by resolution of the BOCC; or 18 (6)Rental employee housing projects situated on the same parcel of land as the nonresidential 0 le 19 workplace for the tenants of these projects,upon written request from the property owner 20 and approved by resolution of the BOCC-, tire- ?: CD 21 CD 22 t3ra r qr ire t>ccr ants tt> evacuate in Phase I of the 43-fir evacuation of`a o endin4�n r9 a`t>r 23 qj.e.... restictetl.:tt rental ocLcvntl..ftr t1tse w1t tlerrvet lust 7f}°� tf` ®_ 24 their Inan e as members of the workforce in Monroe County and who meet the affordable °CL ® 25 ofh Monroe ont an vetn> n € » >c 26 (c) Affordable housing allocation awards and eligibility. 27 (1) The definition of affordable housing shall be as specified in Sections 101-1 and 139-1. 28 (2)Any portion of the affordable housing allocation not used for affordable housing at the end 29 of a ROGO year shall be made available for affordable housing for the next ROGO year. 30 (3) No affordable housing allocation shall be awarded to applicants located within a Tier I 31 designated area, within a V-zone on the county's flood insurance rating map, or within a 2 32 Tier III-A (special protection area) designated area. 4- 33 Notwithstanding the foregoing, and notwithstanding Section 138-24(a)(5), affordable c 34 housing ROGO allocations may be awarded to Tier I or Tier III-A properties which c, 35 meet all of the following criteria: 36 a. The property contains an existing market rate dwelling unit that meets the criteria in W 37 LDC Section 138-22(a) and is determined to be exempt from ROGO; z 38 b. The proposed replacement affordable dwelling unit meets current Florida Building z 39 Code and is not a mobile home; 40 c. The proposed replacement dwelling unit shall be deed restricted for a period of at least ®i 41 99 years as affordable housing pursuant to the standards of the Land Development co 42 Code; CD 43 d. The proposed site plan for the replacement affordable dwelling unit does not propose 44 any additional clearing of habitat; and 45 e. The structure is not proposed to be within a V-zone on the county's flood insurance 46 rating map. Ordinance No. -2021 Page 7 of 12 File 2020-068 Packet Pg. 3868 S.2.ai 1 (4) Only affordable housing allocations for Big Pine Key may be used on Big Pine Key. No S 2 affordable housing allocation may be used on No Name Key. 3 (d) Dwelling unit allocation required. The county shall issue no building permit for a dwelling 4 unit unless such dwelling unit: 5 (1)Has a dwelling unit allocation award; or 6 (2)Is exempted from the dwelling unit allocation system pursuant to this chapter or is deemed 7 vested pursuant to Section 138-22. 8 e rl f ice Initl tive 11 c tl n w rcls eli ibility and re girerments. 9 11 I'Lrrsuant to Policies IffI.3.2. 1ffle3 �...aPcl IffI.3sI2. Monroe C0U1Tt7v establishes a new 2 10 allota-tlon__Cate�t>fy---tt>__awardl---3f}f workf(.)rce Iiousin , earlv__evacuation 1 imt_buildin� 11 --------------- allocations the tt� the orkft.)rce A.fft>rdabl.e Housln� niti ti e (�,(.)rl<ftrrce fnitiative�e > 12 1he_-"-,'or-kfc>rce__�fft>rd-able FIo-usin�4 initiative will require dwellin4 units constructed and/ or >% 13 deed...restricted..with workft.)rce ho sln ...eallfv evacLratitn bLrildin peer lt...allocations...:to M 14 evacuate occn jjcbn�&rna t>r 1rl ric,anee 15 f2 Dwelling Units_developecl, and ter deed restricted Utilizing t_workforce initiative � 16 allocations are sui ect�to the ft>llt>win�: c 17 a, �c�Lres�ts ft>r wt>rl�ft>rce frt>rrsin�early evacuation r i t all Oca ons shall be available t>nly 2 18 for maI for lm excllmam4e for affordable allocations/exemptions and re-uire a reservation le 19 via... OCC:..resolution...The..BOCC...rnav,...a:t..its...discretion., place on...anv 20 reservation as it deerns_aP rc ate, 11re BBC C_inav at lts discretion exclI ge existingy ____ ___m _m___ __ ____m __ _________ __ 21 reserved affordable allocations..for allocations Under then Workforce ve to pri.V.ate 22 develtl nent anti nt nprtrfit sects r partners willing tc meet the renuirernents of` the 23 workforce housing early evacuation unit Lirtlier._t11e: .�)CC. 1na a:t its _ 24 discretionapprove the exclran e c>f` existin cfeecf�restrictecf affordable housinL units °CL ® 25 (lawful affordable exernptitrns) at existing j 111tifafnlly residential developments for 0 26 allocations_under the Workforce fniti_ative to private devel(went and nt�n�rt�fit sector i 27 Paltners wlllln tt meet t1�e rec wirer enis (of the worldorce housing eaffy evacuation 28 unit allocations. ____ _ __________ 29 1 the affordable allocations returned to the County in excham4e for workforce 30 housing early eyamcaiation unit allocations shall be banked and used for future _._ m___ ______ m_ m m mm m_ __ _____ ___ _ __ ____ 31 administrative relief. beneficial Lrse cleterrninatit>ns andtt> rest>lve inverse 32 condef nationmcases and Bert J_mFlarris Jr Private Prtl ertvm l jas Protection <Act � 33 eases c 34 2. To maintain consismtencv withm Rule 28m20,1,1}(2) b}, P.A..C., the affordable � 35 atl.>.�a:6o.Rs returned.t. t11e Co..unty sliall be maintained as iff(..rcl ible ell(..cati(..ns and 36 shall also bemreturned ttr_tlre__trrl4inal affordable lousing income category very. LU� 37 low low median inc o ne vs moderate Inc o ne nool� c, 38 3 The workforce housing early evacuation Emit allocations must be utilized based on 39 t11e orl rowed affordable housln� income category or a lesser income 40 ca et>rv. 41 4e Administrative rel.lef..means ac titans taken by the C ournty gyrantin t1�e t�wner of real � 42 Lg erty relief frorn the €continued application of` the Kate of` Growth OrdinanceCD 43K )Cf01 restrrctic>ns prt>vrclecl they meet the criteria established in the C44 44 Lt»nprehensive Plan and Land f)eveloprnent Code. 45 5e Beneficial use means the Lase of`prtrperty sties a1lt�ws an t�wner tt� derive a benefit � 46 or_profit in the exercise of`a basic pro ertv__Ij ht. For the_purpose of this RL>ti-cvm_ Ordinance No. -2021 Page 8 of 12 File 2020-068 Packet Pg. 3869 I beneficial use shall mean the minimum use of'.the.p p necessary to avoid the S beneficial ............... _Eg �e�qy_ 0 2 findim4 of'a rei4ulatorvm_k_im_T under current land use case law, ----------- 0 3 b, The construction ofdwelling.q it5—. tlie redevelopj deed restriction of _q .................................................................................................................................. ....... ..............................................................................................................1 4 dE��Uim4 units utilizim4 workforce housing early---evacuation----Unit---allocation-s---shall 5 r val of a resole 'o a r vnjg� acontract between.!�qjmre a?j.).ro n the BOCC and _the ........................................................................ 6 ii2plicant to officially--- the 7 r ents �o�rk f'(.)r c�ef n i t i�at i v ee 8 c,---A.1-1--w-orkf'o-r-ce--Ii-ousilIL, eirlv_.eLa-cu-ation--un-i-ts-req2iEe a cleecl restrrctit n ensL rin : 9 1, Bef(.)re n gilding t -n r any structure. 0 .2 j..ry_b _..OM i 1 gy-be issued fo-__..p�ortion ...r ............................................ ...................... 10 Svc>iect srLbi tive covenant shall be approved 11 by the Plannim4 Director and Count7v Attornev and recorded in the Office of' the > 12 Cl-erk-of'-tlie--C-oun-t7v--toe nsure--coin t)liance with the i)r-ovi-s-ion--of'-tlii-s--section--ru-nni'-n�-T >% 13 in favor of the Coun v and. if' a I ty-and enforceable-by the Couryo__ __sIp_p_1 i c b e., a .................................................................................................... ........ ..........................— 0) 14 pqrti The f,(.)Ilo ments shall to these --------J------------------ ---------------------- 15 restrictive covenants: ............................................................................................ 16 i, The covenants f(.)r anv workf(.)rce housing earbv__evacuation units shall be 0 --- ---covenants--- --- --- 17 effective for 99 years, ................................... 2 18 ii, The covenants shall not commence run in 0 19 bas been issue ..bv the Buildim4 Official f(.)r the dwelling unit or dwell' ...............................................................A ...... .......................................................... 0 20 units to which the covenant or covenant a ----------------------------------------------------------------------------------------S_.�2ply, 21 iii, F �_T dwelling units that are deed restricted as workf(.)rce housing .............. ......units....................................................................................................................................................................................................... 22 ear-1-y----e-y-ac-ua-ti-on----un-i-ts-----tLe----c-ove-nan-ts----sha-1-1-----commence-----runnjD i on 1 � z 23 recordation in the Official Records of Monroe Cou t 0 ................................................................................................................................................................................................................................ 24 2, The covenants slial I e�quj t -------------------------------------------------1 tLL--Iia-t--tli-e-w-orkf(.)rc-e--Ii-ousi-n.i4 early eLL a�juation units to be_ ------------------------------------- CL 25 restricted to rental occupancv f'or those who derive at least 70% of"their income as 0 ......................................................................................................................... 26 members ofthe workf(.)rce in Monroe County and who meet the aff(.)rdable_lious, ------------------------------------------------------------------------------------------------------------------------------------------------------- 27 incorne.��IL(�gLjjjg��..of I the Monroe Countyiand Development Code, The occupants ............................... ......................................................................................... ---------- -------------------- 28 ILEe_re�qIlired_to annuallIveriLtheir erptLjytjjeDj_Lu income el j,g_bi I i tK - -- -- ---- -29 3, the covenants shall re ate in Phase I of` 48-lr evacuation ................................. . ........... .................... ........ ..... 30 of a orkf(.)rce housin T early 31 evacuation units who.i jybe exempted from evacuation reqLifi-ements are limited ............................................................................................... .................................................................................................... 0 4- 32 to law eirforcernent., correctional-and fire p I �LeL �erst�nnel, anti ---------------------------------------------------------------------------------------------- 33 there 0 . .......... ..�.j sihi.I.J.1mi.e s..........fJ t.11 r............i..s a.p.- 34 ocegpant that indicates their ern i ti on' ------------------------------------------------------�Dpjp ----------- 35 and not included in the list ofexernp.�ions.&I and .............................. 36 deten-nine., in writing whether the ejLtLi 37 1! quirernent to remain during an _emerg Any X el_Z!Sin. z 38 under this_p�oLision shall submit of' an affidavit of' q.11L-�tjLication and faithfully ----------------------- ------------------------------------------------------------------------------------- z 39 certify their status with the onsite pjt�pejty management ..........40 4-,--I'-Iie-c-o-ven-an-t-s--slia-1-1--!Lu�tle-.Lenmmta1--a.�reei-nents which contain a separate disclosure 0 41 r nts to ackno lech4e the exist' .................... �p� iging,regrictive covenatyto"he Co CD 42 WlLi rec unit ation in Phase I of' the 48-fir evacuation and that failure to I - 43 adhere to the Phase I evacuati J.on..I!���nt c�ou�ldresultin_severe�� .......................................................................................................................................... 44 includin to the occL to C44 45 5, The covenants shall re, LLire ()ns_yte rojm anners and a spDaate ei E 46 discI_osL e_re Lririn the maintenance of'train' rn evacrLitio procedures and an Ordinance No. -2021 Page 9 of 12 File 2020-068 Packet Pg. 3870 I ackno evacuation reourrernent .............. 0 2 could result in sever e termination, ---------------------------------------------- ---------- 0 3 d, Workforce ho in earl units shall be restricted to rental oc n y f or .......................................................................... 4 those__ W_ho derive t lea-s-L7 0%--of'-their-i-n-c orn ea_ members ca srn ernb erso_Lth_ew o-rkf(.)rc e--i n-M-on roe to C 5 t.jqfl__ c�r.ty and whornethe affordable housing.incorne tei4orjes ofthe Monroe-C ount7v .......................... ­�_f, 6 I.,and-D-ey-el-o0ment Code, 'Workforce means individuals or fai-nilies who are U) 7 �e111 P.L2 nt7v residents or visitors, 8 e, Workforce o D L,h usi early__evacuation units shall _rj� -�jj.E gern en t ------------------------------------------- -------------------------------------------------- _1�nL j_ 9 required to manage the ........... 10 evacuation of' tenants in Phase f of evacuation-,- ig,, traditional working hours. ---------------------------------------------------------------------------------------------------------------- 11 th e workforce liousini4 early .................PEW 12 ev-ac-uati-on--un-i-t--de-v-el-o.piL nt sLbiect art ertve_-Outside the traditional world g hours., 13 to evacuation orders, _�b.�P.magi 14 entity units shall work forc e hous )�jjjL early uniall__.��Lac_u_atio--n------------------------ .9 15 e e14gJbi itv of`tenants...r p 11 16 themtotal units on the site,--tlimL-ocLL� -ra-te-s--of-units,--and-ten-ant-c-oi-yipliince with the 0 17 evacuate the units in Phase f of`an evacuation....W..c..Ludin )� the number of ............. -6- 18 occLpants that a rorn e evacuation re ----f --- th-- L ----- _qLiirei-nernyts�ITIie�)r(�):�e L 0 19 rn n t7v must subi i1 t2 t P a nin and Environmental Resources he 0 20 119 Allal-LILeach year, F-urth-er.--ea-ch---I-e-ase--a-nd--tli-i-s--a-nnual--Lept.)rt shall be ?: 21 DeptCD .hy_Lhe pE��p.��j County during 22 traditi-onal workin14 hours, z 23 g, 'Workforce housing.gqj 0 24 Tier fff, ---------------- CL 25 h, Workforce housin -Zone or within 0 ......................................................................................... 26 a-Coas-ta-l--Barri-er-Re-s-o-urc-e_.5X!iLern__(LBR.S), 27 i, Workforce liousing.��jd its shall be located on a or( oert7v which has all ........................................................................................... 28 infrastructure available ble water., a q -----------------------------------------------------(zL�Ll----------------------------d-e iIL-�L(�_.�L-LiLtew-at-er--trea-ti-ne-n-t--an-d---diA2L)sa 29 wastewater ineetim4.adovted L,0,5. paved roads.. ..................................................................................­................................................ 30 j, All workforce housing earlv__.eLacuation units must dernonstrate compliance with all 31 applicable federal .s..t.and...a...r..d..s.....fo...r.....a.c..c.e.....s...s..i.. .i.. i...ty_ ()r ers�ns w itii�clisibilities�,A.F),A. 0 32 Cofyipji�ance 4- 33 k_1 I ojlie.gj!�� able. a devel( went utilizing workforce housing e 0 extent g1ic ..................... ............... ................... 34 ev-ac-uati-on_-u-ni-t--a-l-l-oc-atio,ns shall incoEp�.!L�Lte--sustai-n-ab-le-a-nd-resi-li-en-t-.Ltesi e-S. 35 into the overall site desi accessible to ern loyrneirt centers in Key West. 5 P ..................................................overall ... ................. ..............................................ern.....__ ................. ttrc 36 fs1_and_an_d__M_ara_th_o_n_,. 37 z 38 < z 39 Section 3. Construction and Interpretation. This Ordinance is necessary for the health, 40 safety, and welfare of the residents of and visitors to the County. This Ordinance shall be liberally 0 41 construed to effect the public purpose(s)hereof. Interpretation of this Ordinance shall be construed co CD 42 in favor of the Monroe County Board of County Commissioners ("Monroe County" or the CD 43 "County"), and such construction or interpretation shall be entitled to great weight in adversarial N 44 administrative proceedings, at trial, in bankruptcy, and on appeal. 45 E Ordinance No. -2021 Page 10 of 12 File 2020-068 Packet Pg. 3871 S.2.ai 1 Section 4. Inconsistency, Partial Invalidity, Severability, and Survival of Provisions. 2 If any provision of this Ordinance, or any portion thereof, is held to be invalid or unenforceable in 3 or by any administrative hearing officer or court of competent jurisdiction, the invalidity or 4 unenforceability of such provision, or any portion thereof, shall neither limit nor impair the t� 5 operation, enforceability, or validity of any other provision of this Ordinance, or any remaining 6 portion(s) thereof. All other provisions of this Ordinance, and remaining portion(s) thereof, shall 7 continue unimpaired in full force and effect. 8 9 Section 5. Repeal of Inconsistent Provisions. All ordinances or parts of ordinance in 10 conflict with this ordinance are hereby repealed to the extent of said conflict. The repeal of an 11 ordinance herein shall not repeal the repealing clause of such ordinance or revive any ordinance 12 which has been repealed thereby. 13 14 Section 6. Transmittal. This Ordinance shall be transmitted to the Florida State Land 15 Planning Agency as required by Florida Statute § 380.05(11) and Florida Statute § 380.0552(9). 16 c 17 Section 7. Filin2. This Ordinance shall be filed in the Office of the Secretary of the State 18 of Florida but shall not become effective until a final order is issued, according to Florida Statute 0 19 § 380.05(6),by the Florida State Land Planning Agency or Administration Commission approving 20 the Ordinance, and if the final order is challenged, until the challenge to the final order is resolved � 21 pursuant to Chapter 120, Florida Statutes. CD 22 23 Section 8. Inclusion in the Monroe County Code. The provisions of this Ordinance shall 24 be included and incorporated in the Monroe County Code, as an addition to amendment thereto 25 and shall be appropriately renumbered to conform to the uniform marking system of the Code. 0 26 e( 27 Section 9. Effective Date. This Ordinance shall become as provided by law and stated 28 above. 29 30 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, 31 Florida, at a regular meeting held on the 21 st day of April 2021. 2 32 33 Mayor Michelle Coldiron c 34 Mayor Pro Tem David Rice 35 Commissioner Craig Cates 36 Commissioner Eddie Martinez LU 37 Commissioner Mike Forster 38 39 40 41 BOARD OF COUNTY COMMISSIONERS cco al 42 OF MONROE COUNTY, FLORIDACD CD 43CD 44 BY: `V 45 MAYOR MICHELLE COLDIRON 46 Ordinance No. -2021 Page 11 of 12 File 2020-068 Packet Pg. 3872 S.2.ai 1 (SEAL) s 2 0 3 ATTEST: KEVIN MADOK, CLERK 4 � 5 AS DEPUTY CLERK N 6 c 2 0 4- 0 r9 CL 2 0 4- 0 CJ co CD CD CJ cv CD cv u Ordinance No. -2021 Page 12 of 12 File 2020-068 Packet Pg. 3873 S.2.b Jf �\ s_ \ 3 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 2 15 0 16 Subject: An ordinance by Monroe County Board of County Commissioners adopting amendments 0 17 to the Monroe County Land Development Code amending the Section 138-24, ?: CD 18 Residential ROGO Allocations,to establish a new building permit allocation category to 19 award 300 workforce housing early evacuation unit building permit allocations pursuant 20 to the Workforce-Affordable Housing Initiative (Workforce Initiative) authorized by the 21 Florida Administration Commission and the Florida Department Economic Opportunity CL 22 and to establish the specific Workforce Initiative requirements. (File 2020-068) 23 24 Meeting: April 21, 2021 25 as 26 I. REQUEST 27 28 As directed by the BOCC on February 19, 2020 and July 15, 2020, the Monroe County Planning & 29 Environmental Resources Department is proposing an amendment to the Land Development Code 30 amending the Section 138-24, Residential ROGO Allocations, to establish a new building permit 2 31 allocation category to award 300 workforce housing early evacuation unit building permit allocations 4- 32 pursuant to the Workforce-Affordable Housing Initiative (Workforce Initiative) authorized by the 0 33 Florida Administration Commission and the Florida Department Economic Opportunity and to establish 34 the specific Workforce Initiative requirements. 35 36 On the February 19, 2020, BOCC meeting, the BOCC discussed whether to direct staff to process a 37 comprehensive plan and land development code amendment to: 1) move a portion of the 378 remaining 38 Market Rate - Rate of Growth Ordinance (ROGO) units through 2026 to the Affordable Housing 39 allocation pool and/or 2) accept the 300 Workforce Housing units offered by the Department of 40 Economic Opportunity (DEO) required to evacuate in Phase 1 of the hurricane evacuation model. The 41 BOCC did not decide on the potential shifting of market rate allocations to the affordable housing pool c� 42 (BOCC wanted staff to develop a menu of options). Additionally, the BOCC directed staff to start the 9 43 process to accept the 300 workforce housing units. 44 45 On July 15, 2020, during a discussion item on potentially shifting market rate allocations to the 46 affordable housing pool (agenda item I5),the BOCC provided further direction to staff on accepting the E 47 300 workforce housing early evacuation unit building permit allocations. The BOCC directed: accept BOCC Staff Report Page 1 of 34 File 4 2020-068 Packet Pg. 3874 S.2.b I the 300 workforce housing early evacuation unit buildingpermit allocations to be used in exchange for to 2 existing affordable allocations at multifamily developments (for developers that agree to the early _J 3 evacuation restriction) and the affordable housing allocations returned to the County (returned in the 4 exchange) be set aside and banked for takings cases (bank them within an administrative reliefpool). 5 c 6 IL BACKGROUND INFORMATION 7 8 Section 380.0552,F.S.,the Florida Keys Area protection and designation as area of critical state concern, 9 establishes the intent to "ensure that the population of the Florida Keys can be safely evacuated," ?� 10 [380.0552(2)(j), F.S.] and requires that amendments to each local government's comprehensive plan to 11 include "goals, objectives, and policies to protect public safety and welfare in the event of a natural 12 disaster by maintaining a hurricane evacuation clearance time for permanent residents of no more than 13 24 hours. The hurricane evacuation clearance time shall be determined by a hurricane evacuation study 0 14 conducted in accordance with a professionally accepted methodology and approved by the state land 15 planning agency" [380.0552(9)(a)2, F.S.]. 0 16 17 In order to accomplish the hurricane evacuation requirements by the State, in 1992 the County adopted ?: CD 18 a Permit Allocation System known as the Rate of Growth Ordinance (ROGO). 19 " z The purpose of this Amendment is to implement goals, crbjectivaw and policies of the Florida Keys Comprehensives Flan related to ,pprc cti4h o€' residents, visitors and property in the County from natural "dlsa ers, specifically including hurricanes, by adopting a levelling 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 is unacceptably high. Based on a continua- tion of Monroe County`s historic rate of growth, clearance time will contin- > up, to increase. Therefore, consistent with its responsibility for protecting the health and safety of its citizens, Monroe County must regulate the rate of population growth commensurate with planned increases in evacuation capacity to prevent further unacceptable increases in hurricane evacuation clearance time. Regulation of the rate of growth will also help to prevent further deterioration of public facility service levels, irreversible envi- 20 ronmental degradation, and potential land use conflicts. c 21 ROGO adopted pursuant to Ordinance 016-1992, adopted 6/23/1992 CD 22 23 The Rate of Growth Ordinance (ROGO)was implemented in order to provide for the safety of residents U 24 in the event of a hurricane evacuation and to protect the significant natural resources of Monroe County, JI 25 as required by the State of Florida. The County originally reduced the annual permitting rate from _ 0. 26 approximately 500+ units per year to 255 units per year. Later the State adjusted the annual allocation 27 (see Rule 28-20, F.A.C.) to 197 units per year. Each year's ROGO allocation of 197 new units is split 28 with a minimum of 71 units allocated for affordable housing and market rate allocations cannot to exceed 29 126 new residential units per year. co 30 CD 31 In 2012, the County entered into a Memorandum of Understanding (MOU) with the Department of N 32 Economic Opportunity (DEO),the Division of Emergency Management(DEM), Marathon, Islamorada, 33 Key West, Key Colony Beach and Layton. The MOU provided the distribution of allocations among the 34 local governments based upon a vacant land analysis (excerpt below). E 35 BOCC Staff Report Page 2 of 34 File 4 2020-068 Packet Pg. 3875 S.2.b WHEREAS, DEO and.the Local Governments recognize that significant vacant lands remain in CJ the Florida Keyes Monroe County with 8,758 vacant parcels(77%of total vacant lands),Marathon with 1,281 vacant parcels (II%), Islarnor-acla with 1,109 vacant parcels (10/6), Key Colony Beach with 92 , vacant parcels (0.81%), Key West with 84 vacant parcels (0.74°/0), and Layton. with 13 vacant parcels (0.11%);and 1 � 2 2 3 In 2012, pursuant to Rule 28-20.140, F.A.C., DEM and DEO completed the hurricane evacuation 4 clearance time modeling task and found that with 10 years' worth of building permits, the Florida Keys 5 would be at a 24 hour evacuation clearance. Based upon the resulting 24 hour evacuation clearance, 6 DEO determined the remaining allocations for the Florida Keys (3,550 additional permits countywide, 7 1,970 of these permits would go to Monroe County - excerpt below). In March 2013, the Governor and 8 Cabinet, sitting as the State Administration Commission, approved the recommendation to allocate 10 9 years' worth of growth to the Florida Keys. 10 WHEREAS, from, among the scenarios provided by DEO at the June 8, 2012, Work Group 2 meeting,Scenario M5 included the 2010 Census site-built units(43,760 units),the maximum number of le residential building permits for new construction for all Local Governments per year for 10 years L. (annually,County 197,Marathon 30, Islarnorada 28,Key West 90 Key Colony Beach 6 and Layton 3); CD 11 LL,248 mobile home units projected to convert to site-built units;the exclusion of 870 dwelling units on r9 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 lacy West would transfer annually (by July 13th) any remaining or unused (90 allocations) allocations to the other local 1-- Governments based upon time Local Governments' ratio of vacant land;and CL WHEREAS, following the,Tune- 8, 2012. Fork Group meeting„technical corrections were made to the Census site built units revising that number to 43,718 and revisiting the Key West building;permit allocation to 91, which corrections do not affect the hurricane evacuation clearance time for the 12 population of the Florida.Keys;and 13 14 On April 13, 2016, the BOCC adopted the 2030 Comprehensive Plan and Land Development Code, 15 which included a ROGO allocation distribution through the year 2023,based on Rule 28-20.140,F.A.C., 16 and the Department of Economic Opportunity's completion of the hurricane evacuation clearance time 17 modeling task that found with 10 years' worth of building permits, the Florida Keys would be at a 24 18 hour evacuation clearance time (Phase 2 of the 48-hr phased/staged evacuation). 19 0 20 On May 2, 2018, Governor Rick Scott issued a press release outlining an initiative to the Florida CD 21 Department of Economic Opportunity ("DEO") for a Keys Workforce Housing Initiative (exhibit 1). �I 22 The proposed initiative would allow 1,300 additional Rate of Growth Ordinance (ROGO) allocations 23 throughout the Florida Keys (ROGOs or Building Permit Allocation Systems) for rental workforceI 24 housing, with a condition that the rental occupants evacuate in the early phase (48-hour window) of a 0 25 hurricane evacuation. Any development receiving the units would be required to sign a rental 26 management agreement indicating they would be required to assure the evacuation of all occupants of 27 the development. Under the initiative, each jurisdiction would be eligible to receive up to 300 of these v)1 28 units. The press release specifically stated, "To meet the increased demand for workforce housing, the Co CD 29 innovative Keys Workforce Housing Initiative will require new construction that participates to commit 30 to evacuating renters in the 48-hour window of evacuation." 31 32 On June 13, 2018, the Florida Administration Commission approved the Workforce Housing Initiative. a 33 It was noted that Florida Keys' local governments that choose to participate in the initiative are to work BOCC Staff Report Page 3 of 34 File 4 2020-068 Packet Pg. 3876 S.2.b I with DEO to amend their respective comprehensive plans to allow for additional building permits for U 2 rental workforce housing with the condition of early evacuation. 3 N 4 The DEO issued the graphic below demonstrating the 2012 Hurricane Evacuation model results that r_ 5 indicated there were still 6.5 hours of additional road capacity in Phase 1 of the hurricane evacuation r_ 6 model. Pursuant to the 2030 Monroe County Comprehensive Plan Policies 101.2.4 and 215.1.4,Phase 1 7 of the staged/phased evacuation procedures include: 8 1. Approximately 48 hours in advance of tropical storm winds, a mandatory evacuation of non-residents, > 9 visitors, recreational vehicles (RVs), travel trailers, live-aboard vessels (transient and non-transient), 10 and military personnel from the Florida Keys shall be initiated. State parks and campgrounds should 11 be closed at this time or sooner and entry into the Florida Keys by non-residents should be strictly 12 limited. S 13 2. Approximately 36 hours in advance of tropical storm winds, a mandatory evacuation of mobile home 0 14 residents, special needs residents, and hospital and nursing home patients from the Keys shall be 15 initiated. 2 16 iI - 0 711, SIM LAW kEg6 l alwar IK#uxufi Cl 'ER UT KWIC f4'RUN INAN24 WAS r 77,s �`�' �,Ti r t, a.✓ 4"k1 li�RVNEIM 5Tpti€fAPEVA i' REAUKEWEd ii 3 s r r 0 �� 4e Irea CL r U U 3 - PERIOD THERE IS , HO t OF ADDITIONAL H,DAR CAPAUTY � P-5 Ham (U rf x 11 OF C#PAUTY �yy PROPOSAL W ALLOW MMUNDOES'4 TO Rill#R REET�RESTRISTE1 ''. � AFFIRM! WAN,WWjisREGOUaM 4— TA RE EVAMTEDAT LEAST AR 17 C = ar Ru�ncAwE H1T, 0 18 CD 19 In support of the Housing Initiative at the June 13, 2018 Cabinet meeting,DEO staff made a presentation 20 stating that the Phase I evacuation (under the existing staged evacuation plan) can be accomplished in 21 17.5 hours, leaving additional capacity of 6.5 hours in Phase I. DEO stated, "The proposed Keys' i 22 Workforce Housing Initiative can provide a path forward by allowing local government to grant new 0 23 building permit allocations for workforce rental properties that agree to evacuate 48 hours in advance of 24 hurricane landfall. DEO proposes to allow up 1,300 new building permit allocations for deed-restricted 25 workforce rental housing throughout Monroe County with an initial allocation of no more than 300 per v)i 26 community." DEO concluded that the Housing Initiative"will not interfere with the 24-hour evacuation co CD 27 model and satisfies the statutory mandate to provide affordable housing." [quote from DOAH 28 recommended order on the challenges to the municipality Comprehensive Plan amendments to accept 29 the 300 Workforce Housing units.] 30 31 DEO provided County staff with preliminary draft language based on the minimum requirements 32 established in the initiative to use as a starting point (exhibit 2). DEO indicated the County should BOCC Staff Report Page 4 of 34 File 4 2020-068 Packet Pg. 3877 S.2.b I consider the language provided and make modifications as necessary to ensure the Workforce Housing t� 2 Initiative is locally driven. 3 N 4 On January 30,2019,the BOCC considered options to acceptthe 300 units. Staff drafted three(3)options 5 for consideration by the BOCC: 6 1. Do not accept the 300 early evacuation affordable ROGOs and extend ROGO allocations through 7 2026; 8 2. Accept the 300 early evacuation affordable ROGOs and extend ROGO allocations until 2026; and 9 3. Accept the 300 early evacuation affordable ROGOs and do not extend ROGO beyond 2023. 10 The BOCC discussed and did not agree to accept the 300 units offered on May 2, 2018, by Governor 11 Rick Scott and DEO for the Keys Workforce Housing Initiative. 12 v, 13 On January 22, 2020, the BOCC adopted Ord. 005-2020 to extend the remaining market rate ROGOs c 14 out for an additional three (3)years from 2023 to 2026 within the Comprehensive Plan. 15 0 16 On January 22, 2020, the BOCC adopted Ord. 006-2020 to extend the remaining market rate ROGOs 17 out for an additional three (3)years from 2023 to 2026 within the Land Development Code. ?: 18 19 On January 22,2020,the BOCC directed staff to prepare an agenda item to discuss and provide direction 20 on whether to direct staff to process Comprehensive Plan and Land Development Code amendments to: 21 1) move a portion of market-rate Rate Of Growth Ordinance (ROGO) units to the affordable housing � 22 allocation pool and/or 2) accept the 300 Workforce Housing units offered by the Department of 0 23 Economic Opportunity (DEO)required to evacuate in Phase 1 of the Hurricane Evacuation model. 24 c, 25 On February 19, 2020, the BOCC discussed whether to direct staff to process a comprehensive plan and 26 land development code amendment to: 1) move a portion of the 378 remaining Market Rate - Rate of 27 Growth Ordinance (ROGO) units through 2026 to the Affordable Housing allocation pool and/or 2) 28 accept the 300 Workforce Housing units offered by the Department of Economic Opportunity (DEO) 29 required to evacuate in phase 1 of the hurricane evacuation model. The BOCC did not decide on the 30 potential shifting of market rate allocations to the affordable housing pool but did direct staff to start the 31 process to accept the 300 workforce housing units. 0 32 33 On July 15, 2020, during a discussion item on potentially shifting market rate allocations to the c 34 affordable housing pool (agenda item I5),the BOCC provided further direction to staff on accepting the 35 300 workforce housing early evacuation unit building permit allocations. The BOCC directed: accept 36 the 300 workforce housing early evacuation unit buildingpermit allocations to be used in exchange for 37 existing affordable allocations at multifamily developments (for developers that agree to the early 38 evacuation restriction) and the affordable housing allocations returned to the County (returned in the 39 exchange) be set aside and banked for takings cases (bank them within an administrative reliefpool). 40 41 The BOCC's updated policy direction would limit the use of the 300 workforce housing early evacuation co 42 unit building permit allocations for only the exchange of affordable allocations and not for the use to 43 develop new (not approved or built)units. The BOCC described that the affordable allocations returned 44 to the County in exchange for workforce housing early evacuation unit allocations should be banked to 45 resolve takings cases. The County has been evaluating the potential of takings for many years, but in 46 particular since the 2012, when the hurricane evacuation clearance time modeling found that with 10 47 years' worth of building permits, the Florida Keys would be at a 24 hour evacuation clearance. The 48 County's most recent white paper on this issue is attached to this report as exhibit 3. �t BOCC Staff Report Page 5 of 34 File 4 2020-068 Packet Pg. 3878 S.2.b I U 2 3 It should be noted that Cities of Islamorada(Ordinance 19-03), Marathon(Ordinance 2018-09), and Key 4 West(Ordinance 19-06)have amended their Comprehensive Plans to accept the 300 Workforce Housing 5 units and those amendments were challenged. Hearings were held in December 2019, before Suzanne 6 Van Wyk, an Administrative Law Judge assigned by the Division of Administrative Hearings (DOAH). 2 7 On April 24, 2020, the DOAH Administrative Law Judge recommended approval of Marathon, Key 8 West, and Islamorada's respective ordinances accepting the 300 ROGOs under the Workforce Housing > 9 Initiative (exhibit 4). 10 11 DEO remanded the case to DOAH on August 21, 2020, "for the limited purposes of issuing Findings of 12 Fact and Conclusions of Law on the issue of whether the plan amendments establish meaningful and 13 predictable standards." On September 25, 2020, DOAH issued a recommended order, again, 0 14 recommending approval of Marathon, Key West, and Islamorada's respective ordinances accepting the 15 300 ROGOs under the Workforce Housing Initiative (included within exhibit 4) Currently, it is 0 16 unknown when the final order will be issued or if the final order may be challenged. The final outcome 17 of the City's amendments are not known at this point. The Workforce Housing amendments for the three � 18 cities are attached to this report as exhibits 5, 6 and 7. CD 19 20 z 21 The need for additional affordable housing in the County has been well documented for many years. See 1-- CL 22 excerpts from some recent studies: 23 24 25 • Monroe County Workforce Housing Assessment Report-April 2015 26 htlp://www.monroecounty-fl.gov/DocumentCenter/View/9474/2015-MC-Workforce-Housing- i 27 Stakeholder-Assessment?bidId= 28 The �,,7orltforce lrousrrrg affordabiliv,-crisis in the Florida Ke�-s Identified by the Monroe Counn, Con-111a11issiorr rn 2 714 is real. "Cost-burderred" liouseliolch pay more tlran 30"0 of Income for rent or n ortgage costs. 17 � 201>, 511 o or 16,849, of Nlonioe Gaunt-- households pay more than 30"'c,, of iiicome for housing while 2 statez�Wide that figure is 4 r"'�. lI�re than lzta t c f it rime coivaty rerrters arse cost l�r�rdened 8,3-50 of 14,(-02 29 wli1 le about 4-a°io of'�Ionroe CouiitG7 horneowiiers tare cc)st burderred (5,499 of the 18,9 36 30 CD CD 31 M 32 • 2019 Rental Market Study by the OF Shimberg Center for Housing Studies: 33 htlp://flhousingdata.shimberg.ufl.edu/2019-rental-market-study� i 34 0 co CD CD cv CD cv BOCC Staff Report Page 6 of 34 File 4 2020-068 Packet Pg. 3879 S.2.b 0-30%AMI 30.01-60%ANTI 60.01-80%AMI CJ Cost Cost Cost All Burdened All Burdened All Burdened ' Renters in (>40%) Renters in (>40%) Renters in (A40%) N 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 669do 723 457 639do 372, X X) C Hendry 609 394 659do 887 512 589do 627 (X) (X) Holmes 291 195 67°%0 3.87 2,18 56°%0 2C6 59 29°%0 Jackson 1,32,0 614 479do 1,324 489 379do 612, X X) U Jefferson 350 163 479do 351 130 379do 162, X X) > Lafayette 171 72 429do 143 53 379%0 64 (X) (X) Levy 651 375 589do 814 376 469do 381 X X) Liberty 176 82 479do 176 65 379do 81 X X) Madison 504 2,13 429do 422, 157 379do 187 (X) (X) CD Monroe 2,697 1„667 6294e 3,214 2„573 80°de 1,714 1,058 629do Nassau 1,416 731 529do 2,,131 884 419d6 11198 X X) M Okeechobee 62,9 407 659do 916 529 589do 647 X X) C Putnam 1,52,8 1„013 669do 1,689 902 539do 892, 195 22,9;0 0) Suwannee 1,22,5 517 429do 1,024 380 379do 455 (X) (X) 2 Taylor 516 2,18 429do 431 160 379do 192, X X) Union 210 121 589do 262, 121 469do 123 X X) Wakulla 600 279 47 40 601 222 379do 278 X X) C Walton 1,396 936 679do 1,858 1,047 569do 990 2,84 299do Washington 349 2,34 679do 465 2,62 569do 248 71 299do Small'Total 20,955 111624 551/10 24,952 121745 311/10 12,900 31008 23°'a W State Total 496,556 345.482 70'/'o 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 h® values will be higher than the sum,of the numeric values that do appear. CL Sources LI S Census Bureau,2013-2017 5-Year Arnericar,,Community Survey;University of Florida Bureau of Economic and Business Research,2017 1 Population Projections 2 tJ 80.01-120 AMI 120.01-140 AMI Cost Burdened t8 All Renters in Cost Burdened All Renters in (7409/6) > 0) Income (740 )Renters %Cost Income Renters in /6 Cost Category in Category Burdened Category Category Burdened Jefferson 237 (X) (X) 45 (X) (X) 0) Lafayette 100 X) X) X) X) W Levy 731 X) X) 2,12 X) X) Liberty 119 (X) (X) 23 (X) (X) Madison 294 (X) (X) (X) (X) Monroe 2,493 748 300,4e 870 103 120,4e Nassau 1,189 X) X) X) X) Okeechobee 769 X) X) X) X) Putnam 1,260 (X) (X) 403 (X) (X) I Suwannee 713 X) X) X) X) Taylor 300 X) X) X) X) Union 235 (X) (X) 68 (X) (X) Wakulla 405 (X) (X) 77 (X) (X) C Walton 1,487 X) X) 583 X) X) Washington 372, X) X) 146 X) X) Small Total 18,455 748 4°'a 51455 [Xl [Xl State"Total 542,154 GO,Z62 11% 1781747 71647 4°'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 column and rows with missing values will be higher than the sum,of the numenc values that do appear. sources U_S_Census Bureau,2013-2017 5-Year Ar erican Coinumvuuty survey;University of Florida Bureau.of Econiomic and Business Research,2017 CV CD 3 Population Projections CV 4 5 6 BOCC Staff Report Page 7 of 34 File 4 2020-068 Packet Pg. 3880 S.2.b 1 • 2018 ALICE Study in Florida by the United Way: U 2 https://www.uwof.org/sites/uwof org/files/2018%20FL%20ALICE%20REPORT%20AND%2000%20 3 PAGES.pdf n 2016 Point-in-Time Data Population: 79,077 - Number of Households: 30,318 � Median Household Income: $65,717 (state average: $ 0,860) Unemployment Rate: 3.3% (state average 6.10%) 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 e 7 environmental features, housing supply limited by controlled growth(the permit allocation systems)and 2 8 a tourism economy with a prevalence of lower paying service-sector employment. 0 9 0 CD $2,.4 Billion Four out of every 10 Mo,n,ro,e County warkers owes his/hers b t fo rism W 2018 Monroe GOUnty TOLWISM Spending activity. our°i m was responsible f6r 4`#% of all Monroe County jobs. 0 CL C The eyerage woge of both full and dart-time workers supported by €s�oMo noel of 9 ty t urisrr�oyrnent , in 1 . � CJ CJ $1.8 Billion jobs supported directly 4y tourism were responsible f6r 3 % of all i Total Economic Impact orir"offCounty rivote s for job . 10 (Direct Indirect,&lncruced) > 11 2020 Monroe County Tourist Development Council 12 13 The housing affordability problem of the Florida Keys has widespread economic impacts, including a 14 growing recognition of the important link between an adequate affordable housing supply and economic 15 growth. Many of the business sectors in the Florida Keys, including professional services, retail trade, 16 tourism and health care, find it increasingly difficult to attract and maintain workers. Affordable housing � 17 has posed and continues to pose a major challenge for local governments,public agencies and the private CD 18 sector in the Florida Keys. The service and retail industries generate high demand for affordable housing 19 from low income earning workers,while the limited land area and linear geography of the Keys severely a 20 limit the potential supply and locations of housing. Furthermore, unlike other areas, working familiesi 21 cannot find affordable housing nearby and commute. As a result, a severe imbalance exists between 0 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; CO 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 28 conditions; 29 • higher costs due to regulations and insurance (building standards are among the most rigorous in 30 the State); BOCC Staff Report Page 8 of 34 File 4 2020-068 Packet Pg. 3881 S.2.b I • limited permit allocations due to hurricane evacuation standards, habitat protection and water U 2 quality objectives; and 3 • limited non-profit and private sector capacity for funding assistance and housing production. 4 5 The need to protect and preserve an adequate inventory of affordable/workforce accessible housing is a 6 continual as well as a growing challenge in the Florida Keys,particularly after the impacts of Hurricane 7 Irma. On September 10, 2017,Hurricane Irma made landfall near Cudjoe Key as a Category 4 Hurricane 8 with maximum sustained winds of 130 mph. Hurricane Irma caused significant damage throughout the 9 Florida Keys: 10 PRELIMINARY DAMAGE ASSESSMENT(SUMMARY W PARK INFO)-THRU 1L/26117 a� U) KEYLARGO 2581 3991 326 75 VILLAGE OF15 ORADA 0 468 427 47 0 FIESTA KEY 0 0 2S7 � CRAIG KEY 0 1 0 0 � CITY CIF LAY ON 4 160 1s LONG KEY 304 1+4 0 CON04 XEY 0 13 4 0 DUCK KEY 292 R2 83 7 CD CITY Of:KEY COLONY BEACH 0 1462 E88 CD }},ti tilttislti 0 ? 1402 W QH IC)KEY 0 0 0 397 BAH[A HONDA KEY 6 6 6 0 BIG PINE,KEY '264 1,518 663 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 TOG Z10 10 CJ CUDJOE KEY I-M 914 620 52 SUGARLOAF KEY M 207 103 � UPPER SUGARLOAF KEY 175 0 ; 0 0 U LOWER SUGARLOAF KEY 6 161 110 0 > SADDLEBUNCH KEYS. 02 0 0 0 SHARK KEY 0 : 39 0 0 046C:CIPPI TKEY 122 538 63 +4 GEIGER KEY 41 252 0' 7 W RCp[IdLND KEY 1 fib ' 1 31 0 E d HAVE'N R 457 1 0 STOCK ISLAND WS; 5,65 22 1s 011E �a 282 11CD CD 12 13 14 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 c� 20 assumptions utilized within the hurricane modeling. CD 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 34 File 4 2020-068 Packet Pg. 3882 S.2.b I Order Number 20-52, declaring a State of Emergency for the Stale of Florida related to COVID-19/novel U 2 Coronavirus. The Monroe County Mayor declared a State of Local Emergency on March 15, 2020, due _j 3 to COVID-19/novel Coronavirus, to"initiate protective measures necessary to ensure the health, safety, 4 and welfare of residents and visitors." 5 6 Due to the public health emergency, the Governor has issued numerous executive orders to help slow 7 the spread of the virus, including suspending the sale of alcoholic beverages, suspending on-premise 8 food consumption at restaurants and food establishments, prohibiting any medically unnecessary, non- 9 urgent or non-emergency procedure or surgery,limiting occupancy to 50%at restaurants,beach closures, 10 closure of gyms, suspension of vacation rental operations, and safer at home orders (limit movements 11 and personal interactions outside of the home to only those necessary to obtain or provide essential 12 services or conduct essential activities), etc. Monroe County was also temporarily closed to visitors to 13 allow time to prepare for a rise in cases and time for hospitals to adequately prepare with staffing, 0 14 resources, testing, and facilities. 15 0 16 The economic impacts of COVID-19/novel Coronavirus have been significant globally, to Florida and 17 specifically to Monroe County. The economic impacts are anticipated to increase the demand for the 18 availability of housing opportunities for lower income groups. 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 c. 22 See excerpt from the DEO Bureau of Workforce Statistics and Economic Research April Employment 23 Figures: eti 24 U STATE OF FLORIDA LOCAL AREA UNEMPLOYMENT STATISTICS BY COUNTY (NC1T SEASONALLY ADJUSTED) IM 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 21,820 135% 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;: 613784 60,572 8,2t2 11.9% 75,312 72,151 3,11 42% 73,573 71,430 2,143 2.9% 2 Miami-DadeCni 1,2t5,918 1871,1324 144,294 11.9:!'. 1317241 1,267181 5d,060 3.8:/0. t383,594 1,349404 34,t90 2.510. 25 Monroe Count;, 46316 38,609 8,207 17.5% 4B,214 46,B81 1,333 2.B&%% 46,585 45,580 905 1.9% 26 c 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 Marton 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% 00� Mfiaml-DadeCounry 1,212,569 1,075,744 136,825 113% 1,213833 1070,388 143,445 118% 1374,809 1,341,271 33,538 24/ t,C} 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 34 File 4 2020-068 Packet Pg. 3883 S.2.b STATE OF FLORIDA LOCAL AREA UNEMPLOYMENT STATISTICS BY COUNTY (NOT SEASONALLY ADJUSTED( JUNE 2020 MAY 2020 J.UNE 2019 LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLOY- UNEMPLOYMENT COUNTY FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE Marion County 133,949 122.,557 11392. 8.5% 132.,803 113,618 14,185 107% 137,956 132,220 5,736 4.2 Martin County 70,94E 65,243 5,703 8.0% 69,955 62,659 7,296 104% 74.,044 71.,503 2,541 3.4% Miami-Dade Count:' 1,269,957 1,124,302 14.5,655 iC.S! 1,220,976 1974,907 146,069 1'2.0h 1,369,579 1335,085 34,494 2.5t ¢` 1 Monroe Count; 47377 42,674 4.703 9.9%1 48,916 40,866 8,050 165%1 46,480 45,460 1,020 2.2% U 2 > 3 See excerpt from the DEO Bureau of Workforce Statistics and Economic Research A7.gnist Employment 4 Figures: STATE OF FLORIDA CD LOCAL AREA UNEMPLOYMENT STATISTICS BY COUNTY (NOT SEASONALLY ADJUSTEDi U) 0 AUGUST 2020 JULY 2020 AUGUST2019 LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLOY- UNEMPLOYMENT LABOR. EMPLOY- UNEMPLOYMENT G) COUNTY FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE hdana#ze County 173 8177 i82,89500,802 6211, 172 752 156,556 16,1:iG U 41, 178,333 172,279 6,054 3 4% Marion COLInty 139 293 130,482 8,781 6.3 J 137,501 124,693 12,808 9 3% 137,952 132,347 5,605 4-1% Mania County 72,127 G8,150 3,977 5.51 70.579 64,446 6,133 8-7% 74,133 71,62; 2,507 3 4% 0 Miami-Dade Countu 1,351,f3'VD 1,242,54' 109,255 8 1 l 'U39,-V53 1;145,387 193,7EC 14.5% 1,377,292 -V,34-V,9 9 35,333 2.6% 5 Monroe County 48,715 45,408 3,307 68`1 48,117 43,283 4,834 10.0% 4C,583 45,583 1,000 2.1% � 6 wr 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, �I LOCAL.AREAL+NEMPLOvFJENT STATSTICS EY COUNTY (, yNOT SEASONALLY ADJUSTED! DECEMBER.20€20 NOVEMBER 2020 DECEMBER.2019 LABOR EMPLOY- UNEMPLOYMENT LABOR EMPLQ'- UNEMPLOYMENT LABOR EMiPLOI- L+NEMPLOIMENT � COUNT, FORCE MERIT LEVEL. RATE FORCE MENT LEVEL RATE FORCE MENT LEVEL RATE Cb Mamn County 142.,294 134,309 7,°98„ 9-P1.4 1,.41;752 133,640 5,104 137,663 133,193 4,470 3.2°r`.; Mar€sn C,ou...-ty i3.700 70.708 2;�94 4.117a 72.851 8.8-75.2 ',099 4.2:17:. 74..'s�3 72437 1'1�56 2.6% � Mianv:-Dade C:ounly 1,312409 1,21:6.08 , 22 7 3". ',329.607 ',223.9.3+2 105,574 7.91,, =522.870 s,3..71]836 22,034 1.6% 10 hhcnaae County 49,.5i3°, 47,:709 i;472 :3.8"-`a 48:.93.@' 46:.861 2,070 4.2'o 47.85' 47.029 F_ie'.8 1..7°e !U 11 � 12 c 13 14 Staff is proposing a corresponding amendment to the Comprehensive Plan. The subject of this staff 15 report is the proposed amendment to the Land Development Code. 16 17 18 Community Meeting and Public Participation 19 In accordance with LDC Section 102-159(b)(3), a Community Meeting was held on July 28, 2020 to 20 provide for public input. There were 11 attendees, inclusive of four County staff members. Seven W 21 members of the public provided comments and, in general, the comments expressed opposition and 22 concern for the proposed amendment, as summarized below: U)i co 23 • Not in support of accepting the 300 units 24 • Concern with public safety related to hurricane evacuation 25 • Undermines current restrictions on growth N 26 • Accepting additional units nullifies the whole growth management system 27 • Concern with rapid intensification of storms;we do not have anything to deal with a short notice E 28 hurricane BOCC Staff Report Page 11 of 34 File 4 2020-068 Packet Pg. 3884 S.2.b 1 • Not supported by any data or studies and undermines ROGO system for the County t� 2 • Bad policy and contravenes state statutes to `award' 1300 ROGOs for use by permanent residents 3 (workforce) by estimating capacity in tourist phase of evacuation and assuming the workforce 4 can and will evacuate early and often 5 • Legal challenge to city amendments that have accepted units is still ongoing 6 • County will end up in a lawsuit too 7 • Creating this new pool will create more takings cases 8 • Define onsite property manager and true emergency workers; ensure accessibility to employment 9 centers; and ensure banked allocations will be used for takings cases only 10 • Concern about the County taking more units from the municipalities 11 � 12 Development Review Committee and Public Input 13 The Development Review Committee considered the proposed amendment at a regular meeting on 14 August 25, 2020 and received public input, as summarized below: 2 15 • Not in support of accepting the 300 units 4- 16 • Requesting county conduct additional analysis of a successful takings claim and an analysis of c 17 the Property Assessor's data base of vacant lots in view of the legal issues 18 • Not allowing the exchange of units with the cities (interlocal agreements to transfer units) C 19 • Concern with rapid intensification of storms;just saw 2 recent storms rapidly intensify z 20 • Allocations exchanged should retain their previous income category 1-- CL 21 • Require onsite property manager 0 22 • Object to the words "To the greatest extent practicable" 23 24 Plannin2 Commission and Public Input 25 The Planning Commission considered the proposed amendment at a regular meeting on October 28, �1 26 provided for public input and recommended approval of the proposed amendments. The Planning > 27 Commission included in their motion to recommend approval of the amendments, that the Planning 28 Commission does not recommend approval of the general acceptance of the 300 workforce housing early 29 evacuation unit building permit allocations, without the criteria and provisions included in the staff 30 report. 0 31 32 Previous County Action (exhibit 8) � 33 On May 2, 2018, Governor Rick Scott issued a press release outlining an initiative to the Florida 34 Department of Economic Opportunity("DEO")for a Keys Workforce Housing Initiative,allowing 1,300 35 additional Rate of Growth Ordinance (ROGO) allocations throughout the Florida Keys (ROGOs or 36 Building Permit Allocation Systems). Commissioner Rice calls a special meeting for May 10, 2018 at 37 11 a.m. in Marathon to provide the Commission and the public an opportunity to discuss the proposal 0 38 prior to the Cabinet meeting (May 15, 2018). At the May 10, 2018 Special BOCC Meeting, the BOCC 39 directed County staff to discuss concerns identified with DEO and provide an update to the BOCC at the 40 next meeting. U)i co 41 CD 42 On May 16, 2018, the County Attorney provided the BOCC a report on the Governor's proposal for ' 43 1,300 additional ROGO allocations following her meeting with DEO and state level staff. He advised 44 the Board that they have a cabinet meeting scheduled for June 13,2018 to discuss the allocations further. 45 46 On May 16, 2018, the BOCC directed County staff to present the Board's questions and concerns 47 regarding the Workforce Initiative at the meeting with the Cabinet on June 13, 2018. e( BOCC Staff Report Page 12 of 34 File 4 2020-068 Packet Pg. 3885 S.2.b 1 U 2 On June 6, 2018, the County sends a letter to DEO providing County comments and questions on the _j 3 Keys Workforce Housing Initiative. 4 5 On June 13, 2018, the Florida Administration Commission approved the Workforce Housing Initiative. 6 Florida Keys'local governments that choose toparticipate in the initiative willwork with DEO to amend 7 their respective comprehensive plans to allow for additional building permits for rental workforce 8 housing with the condition of early evacuation. 9 10 On August 15, 2018, the BOCC directed County staff to prepare a discussion and direction item M 11 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 � 12 loos taaadcc available. After discussion, it was decided to place a discussion itcxn on the September o 13 agenda. 2 14 c 15 On September 19, 2018, the BOCC directed County staff to draft proposed policy alternatives to the 0 16 State's initiative that address several concerns raised related to the enforceability of the evacuation ?: 17 provisions. Additionally, the BOCC asked the County Attorney to research whether the state's Florida 18 Keys Workforce Housing Initiative,which, if implemented,would create a precedent that would require z 19 the state to award as many as 10,000 additional units in the future vs. the liability of not accepting the 20 units under the State's initiative. During the discussion, the County Attorney stated accepting the units CL 21 means fewer takings cases (less potential for cases). 13 Emily Schemper, Acting.Sr. Director of Planning&Environmental Resources,addressed U� the Board.regarding the initiative by the State of Florida Administrative Commission to be c, 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 o� 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 stone winds reaching the shore of the,Florida Keys) 22 of hurricane evacuation. Currently transient units (hotels)and mobile home occupants arc required to evacuate in the early phase of evacuation. Bob Sbillinger, County. Attorney', and Christine Hurley, Assistant County Administrator,addressed the Board. The following o 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, staff Mill meet with i DEO; and then staff will tonne 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 i meetings,DRC and Planning Commission- and additional legal input regarding hoNv to avoid 23 6,000 to 8,000 takings cases. Motion carried unanimously. 24 25 On January 30,2019,the BOCC considered options to accept the 300 units. Staff drafted three(3)options 26 for consideration by the BOCC: c� 27 1. Do not accept the 300 early evacuation affordable ROGOs and extend ROGO allocations through 2026; 28 2. Accept the 300 early evacuation affordable ROGOs and extend ROGO allocations until 2026; and N 29 3. Accept the 300 early evacuation affordable ROGOs and do not extend ROGO beyond 2023. 0 BOCC Staff Report Page 13 of 34 File 4 2020-068 Packet Pg. 3886 S.2.b B2 Ms. Scherrrper,Ms. Hurley and Mr, Slr.illinge r addressed the Board concerning direction t� regarding the initiative by the. State of Florida Administrative Commission to be administered through the Deparnnent of Economic Opportunity for the Keys Workforce Housing Initiative ' to allow up to 1300 additional affordable housing allocations (up to 300 for unincorporated Monroe County) in Ratite of Growth Ordinance Allocations(ROGO)for rental workforce housing, with a condition that developments that receive these R060 allocations have a rental management agreement in place that requires rental occupants to evacuate in the early phase(48 hours in advance of tropical storm winds reaching the shore of the Florida Keys) of a hurricane evacuation, Currently transient units(hotels) and mobile ]ionic occupants are required to evacuate in the early phase of evacuation, The following individuals addressed the Hoard-,Joyce Newman,representing Last Stand; Alicia Putney,Captain Ed Davidson, representing Florida Keys Citizens Coalition,and Ann Olsen, representing Friends of the Dower 1 Keys. Board took no official action. 2 0 3 On January 30, 2019, the BOCC discussed and provided direction regarding existing and potential 4 actions, policies and programs to address exhaustion of ROGO allocations and build out of the Florida 2 5 Keys as of 2023 with a substantial number of platted lots remaining. The discussion involved existing 6 and potential actions, policies and programs; as well as ideas for policy changes to alleviate potential 0 7 takings liability, if and when the DEO is no longer able to award ROGO allocations to the County. B3 "I`lre following staff addressed the Board concerning direction. regarding existing and potczrtial actions, policies and programs to address exhaustion of ROGO allocations and build out of the Florida Keys as of 2023 with r substantial number of platted lots remaining: Ms. Schemper,Mr. Shillinger,Ms. Hurley,Derek Howard, Assistant County Attorney- Mike CL Roberts. Sr. Administrator, Environmental Resources; Peter Morris, Assistant County Attorney; and Cynthia Guerra, Sr. Biologist The following;individuals addressed the Board: Alicia Putney, � Stuart Schaffer, representing Sugarloaf Shores and Cudjoc Gardens Homeowner's Association; 8 and Bill Hunter, Board took no official action, ca 9 On January 22, 2020, the BOCC adopted Ord. 005-2020 to extend the remaining market rate ROGOs1 10 out for an additional three (3)years from 2023 to 2026. > 11 12 On January 22,2020,the BOCC directed staff to prepare an agenda item to discuss and provide direction 13 on whether to direct staff to process Comprehensive Plan and Land Development Code amendments to: 14 1) move a portion of market-rate Rate Of Growth Ordinance (ROGO) units to the affordable housing 4- 15 allocation pool and/or 2) accept the 300 Workforce Housing units offered by the Department of 0 16 Economic Opportunity (DEO)required to evacuate in Phase 1 of the Hurricane Evacuation model. ?: CD 17 18 On February 19, 2020, the BOCC discussed whether to direct staff to process a comprehensive plan and tag 19 land development code amendment to: 1) move a portion of the 378 remaining Market Rate - Rate of _i 20 Growth Ordinance (ROGO) units through 2026 to the Affordable Housing allocation pool and/or 2) _ 21 accept the 300 Workforce Housing units offered by the Department of Economic Opportunity (DEO) 22 required to evacuate in phase 1 of the hurricane evacuation model. The BOCC did not decide on the 23 potential shifting of market rate allocations to the affordable housing pool but did direct staff to start the 24 process to accept the 300 workforce housing units. col CD CD CD BOCC Staff Report Page 14 of 34 File 4 2020-068 Packet Pg. 3887 S.2.b 17 s;. Scl errrpe;r gave power Point Presentation on.the discussion.and direction on `hether to direst staff to process a tvomprehen ivte Plan and land Development Code all-e-radment tc-': 1)move a portion of the:378 setrraining market rate Rate*of Growth Ordinance, N units through 2026 it)the Affordable Housing Allocation Pool_ arr ,/rrr, 2)accept t e:ft0 +otkl rrct:lrs tisiatg tin its Ofi`ered by t'he Dep rttr ent 0 'Fcotrontic pporttrtaity required to evacuate in please 3 of the hurricane evacuation rnod'el. Mr- Shiilinger, Lisa Tennyson, c Legislative Affairs CTrants Acquisition Dinecwr;and Ms_ Hariey addressed the Board, The following individuals addressed the Lard. D.A. Aldridge, Last Stared- Jan Edelstein, representing Gudjoe Gardens Properiv Owner'%Assaciation,Stuart Schaffer. � repr°e�entirrg'Sugarloaf Shares Property Owner's Association.„ and Dow Moses. After discussion,motion was rnade by Commissioner Coldiron and seconded by C ornmissiouer Cates W t�st rrt tltc process ter trcr pt Arts 3f10 �f rlc4,errtie lrc grsirzg trrri,ts. Roll call vote was taketi wit:ly the following fmlt�° 0 Col"11115siotrer Cates `rre5 w Corn III is Sion er Coldiroll, Yes L. 0 Cott missiorrter Murphy No Corruni,56orier Rice fires c Mayor Carruthers N r9 1Motion carried_ W 2 CL 3 On April 15, 2020,the BOCC adopted Resolution 100-2020 providing for a temporary suspension of the 4 expiration of ROGO and NROGO allocation awards, issuance of allocation award letters, deferring 5 administrative relief application deadlines, and deferring the processing of new and existing ROGO and 6 NROGO applications and Planning Commission review due to the impacts of COVID-19/novel 7 Coronavirus. i 8 9 On July 15, 2020, during a discussion item on potentially shifting market rate allocations to the 10 affordable housing pool (agenda item I5),the BOCC provided further direction to staff on accepting the 11 300 workforce housing early evacuation unit building permit allocations. The BOCC directed: accept 12 the 300 workforce housing early evacuation unit buildingpermit allocations to be used in exchange for 13 existing affordable allocations at multifamily developments (for developers that agree to the early 14 evacuation restriction) and the affordable housing allocations returned to the County (returned in the 0 15 exchange) be set aside and banked for takings cases (bank them within an administrative reliefpool). 16 17 On January 20, 2021, the BOCC adopted Resolution 041-2021 to transmit the proposed amendments to 18 DEO to review the 300 workforce housing early evacuation unit proposal, with a modification to Policy 19 101.3.12 to eliminate the requirement for a development agreement. With the 300 unit amendment being 0 20 structured as an exchange program, the projects exchanging units have previously completed their 21 development review and multiple hearings for a development agreement seems unnecessary, time 22 consuming and costly. The BOCC and staff can review approve the exchange through a resolution v)i 23 approving a contract. co 24CD CD 25 "' CD 26 III. PROPOSED LAND DEVELOPMENT CODE TEXT AMENDMENTS 27 28 Proposed Amendment(deletions are additions are shown in underlined) 29 BOCC Staff Report Page 15 of 34 File 4 2020-068 Packet Pg. 3888 2 Sec. 138-24. -Residential ROGO Allocations. 3 (a)Number of available annual residential ROGO allocations. The number of market rate residential 2 4 ROGO allocations available in each subarea of the unincorporated county and the total number of 5 affordable residential ROGO allocations and workforce housing earb� acuation unit allocations ------------------------------------------------- ----------------------------------------------------- 0 6 available countywide shall be as follows: 7 Number of Dwelling Units > Subarea ROGO Years: ROGO Years: July 13, 2020- July 12, 2021 July 13, 2023- July 12, 2024 July 13, 2021- July 12, 2022 July 13, 2024- July 12, 2025 CD July 13, 2022- July 12, 2023 July 13, 2025- July 12, 2026 E Upper Keys 31 30 0 Lower Keys 29 28 Big Pine and No Name Keys 4 4 2 0 Total market rate 64 62 -Affordable Dwelling Units 0?: Very Low, Low, and Median Incomes 360* CD Moderate Incomes 350* z *Includes one annually for Big Pine Key and No Name Key 0 CL W00 0 orkforce Initiative. 3 ** xx Workfore ..ho.LISirm4 early evaCLiatiOrl unit allocations shall be distributed on a first-come first-serve basis. ............................................ JhE d:Ed.jJLU_L1_r1i_ts deve lobed E...deed-restricted..Lit'ji--ilLg the �yorkforce housirig..��i acuation................................................................ 0 ' ri a c s unit iliac at ......................... _c�jiori_1.38-24. ............. ........................... 8 > Annual Allocation ROGO Year Market Rate Workforce Affordable Initiative Housing 2 126 4- 0 July 13, 2013-July 12,2014 71 U: 61, L: 57, BPK/NNK: 8 0 ?: CD July 13, 2014-July 12,2015 126 71 U: 61, L: 57, BPK/NNK: 8 July 13, 2015-July 12,2016 126 U: 61, L: 57, BPK/NNK: 8 _j 0 July 13, 2016-July 12,2017 126 U: 61, L: 57, BPK/NNK: 8 N/A 126 July 13, 2017-July 12,2018 U: 61, L: 57, BPK/NNK: 8 568 total AFH U) CO 126 126 (total available July 13, 2018-July 12 2019 U: 61, L: 57, BPK/NNK: 8 immediately) C44 C44 126 July 13, 2019-July 12,2020 U: 61, L: 57, BPK/NNK: 8 E July 13, 2020-July 12,2021 64 U: 31, L:29, BPK/NNK: 4 BOCC Staff Report Page 16 of 34 File 4 2020-068 Packet Pg. 3889 S.2.b July 13, 2021—July 12,2022 64 U: 31, L:29, BPK/NNK 4 64 July 13 2022—July 12 2023 U: 31, L:29, BPK/NNK 4 July 13, 2023—July 12,2024 62 3 ** U: 30, L:28, BPK/NNK 4 July 13, 2024—July 12,2025 62 > U: 30, L:28, BPK/NNK 4 July 13, 2025—July 12,2026 62 U: 30, L:28, BPK/NNK 4 CD TOTAL 1,260 3 ** 710* 0 *Includes two annual affordable ROGO allocations for the Big Pine Key/No Name Key subarea)through the Incidental Take Permit(ITP) ending in 2023. 2 0 4- le *x Wo kforeC I.ousir( carly evacuation unit allocations shall be clistribUtecl on a first-come first-serve basis. _....................................................... F�c.clucsts far cle elfin<7 gr its clevelanecl ar cl/ar cleecl-zestrietecl UWIZML< the workforce IrotiSin( early � c-u than ' unit allocat' ris art sub cct to tlrc nravisiar s of Pal cv l;`}l 3 l2 r c cc for 138-2 cL 1 - 2 The State of Florida, pursuant to Administration Commission Rules, may modify the annual CL 3 allocation rate. The mC ounmtvmado ted a slower rate of annual_allocations for market rate develom-rent 0 4 to extend the allocation tirnefrarn.e to 2026 without exceeding the ttltal tlf 1.970 allocations, By July 5 12, 4- 2023m-if substantial financial support is provided by State and Federal partners,the County 6 may reevaluate the ROGO distribution allocation schedule and consider an extended timeframe for 0 7 the distribution of market rate allocations. If necessary, Monroe County will request a Rule change �i 8 from the Administration Commission to authorize an alternative allocation timeframe and rate. 9 (1) Yearly residential ROGO allocation ratio. Each subarea shall have its number of market rate 10 residential ROGO allocations available per ROGO year. Affordable ROGO allocations a.nd' 11 w-orkf orce 1 ou-sin-,early evacuation--snit al too amti-onms shall be available for countywide allocation � 12 except for Big Pine Key and No Name Key. The allocations for Big Pine Key and No Name 0 13 Key shall be limited to maximums established in Big Pine Key/No Name Key Livable 14 CommuniKeys Plan, Incidental Take Permit and Habitat Conservation Plan. � 15 (2) Quarterly residential ROGO allocation ratio. Each subarea shall have its number of market rate CD 16 housing residential ROGO allocations available per ROGO quarter determined by the following 17 formula: c� 18 a. Market rate residential ROGO allocations available in each subarea per quarter is equal to 19 the market rate residential ROGO allocations available in each subarea divided by four. 0 20 b. Affordable housing residential ROGO for all four ROGO quarters, including the allocations 21 available for Big Pine Key, shall be made available at the beginning of the first quarter for 22 a ROGO year. Beginning July 13, 2016, the balance of all remaining affordable housing U)i co 23 residential ROGO allocations shall be made available for award. CD 24 c:...�O orkforce..fnitiative allocations shall be made available..at.:the beginning t�f`t1�e first gL�a�ter ' 25 of ROGO vcar July 13. 202t_____mJulv_I2 2022 llmallocations_shall bemavailable for award., CD 26 and shall b.e distributed on a..flrst aline first serve basls....Re��t�rl�ft�rce 1�t�L�sin 27 earlv_evac uamt on_-nit allocati-onms shall require a reservation via BOUC resolution, � BOCC Staff Report Page 17 of 34 File 4 2020-068 Packet Pg. 3890 S.2.b 1 (3) Ratio of very low income, low income, and median income allocations to moderate income U 2 allocations. The Planning Commission may amend these proportions for affordable housing _J 3 during any ROGO quarter. 4 (4)Big Pine Key and No Name Key. 5 a. All allocation awards on Big Pine Key and No Name Key are subject to the provisions of the 6 Incidental Take Permit (ITP), the Habitat Conservation Plan (HCP) and Livable 7 CommuniKeys Plan(LCP)for the Florida Key Deer and other covered species,which may 8 affect ROGO allocations under this article. > 9 b. In the Big Pine Key/No Name Key sub-area the annual maximum number of residential 10 permit allocations that may be awarded in Tier I shall be no more than one (1) every 2 11 years. Until the ITP, HCP, Biological Opinion, and LCP are amended, a property owner C 12 attempting to develop his property may be granted an allocation through the ROGO process 13 that may be used once that property owner obtains all required permits and authorizations 0 14 required under the Endangered Species Act and other applicable federal and state laws. 15 The allocation will remain valid so long as the applicant diligently and in good faith 0 le 16 continues to work with USFWS to conclude the coordination and pick up a building permit. 17 (5)Limit on number of allocation awards in Tier I. ?: CD 18 a. Big Pine Key/No Name Key subarea: The maximum ROGO allocations in Tier I shall be no 19 more than one (1) every two (2)years. 20 b.Upper Keys subarea: The annual maximum ROGO allocations in Tier I shall be no more than 21 three (3). 1-- 22 c. Lower Keys subarea: The annual maximum ROGO allocations in Tier I shall be no more 0 23 than three (3). 24 (b) Reservation of affordable housing allocations. Notwithstanding the provisions of Section 138-26 25 for awarding of affordable housing allocations_or workforce initiative (wt>r1�force housing early 0 26 evacuation--munit)-allocations, the BOCC may reserve by resolution some or all of the available 27 affordable housing allocations ter avail ab le w.t1kf'.rce Init alive all.ocatio.ns for award to certain 28 sponsoring agencies or specific housing programs consistent with all other requirements of this 29 chapter. Building permits for these reserved allocations shall be picked up within six months of the 30 effective reservation date, unless otherwise authorized by the BOCC in its resolution. The BOCC 31 may,at its discretion,place conditions on any reservation as it deems appropriate. These reservations 0 32 may be authorized by the BOCC for: 33 (1) The county housing authority, nonprofit community development organizations, pursuant to ?: 34 Section 139-1(e), and other public entities established to provide affordable housing by entering 35 into a memorandum of understanding with one or more of these agencies; c, 36 (2) Specific affordable or employee housing projects participating in a federal/state housing 37 financial assistance or tax credit program or receiving some form of direct financial assistance 38 from the county upon written request from the project sponsor and approved by resolution of 0. 39 the BOCC; 40 (3) Specific affordable or employee housing projects sponsored by nongovernmental not-for-profit 41 organizations above upon written request from the project sponsor and approved by resolution i co 42 of the BOCC; 43 (4) Specific affordable or employee housing programs sponsored by the county pursuant to 44 procedures and guidelines as may be established from time to time by the BOCC; 45 (5) Specific affordable or employee housing projects by any entity, organization, or person, 46 contingent upon transfer of ownership of the underlying land for the affordable housing project E 47 to the county, a not-for-profit community development organization, or any other entity BOCC Staff Report Page 18 of 34 File 4 2020-068 Packet Pg. 3891 I approved by the BOCC, upon written request from the project sponsor and approved by U 2 resolution of the BOCC; or 3 (6) Rental employee housing projects situated on the same parcel of land as the nonresidential 4 workplace for the tenants of these projects, upon written request from the property owner and 5 approved by resolution of the BOCCE-, 6 ousing .2 _) ��`�jrkforce initiative__h_ _Vi2L��ursuant to Policv 1013,12 and SectionJ__3_8-2._,1(e that ----------------------------------- ------------ ----------------------------------—------------------------------------------------- 7 r Phase I of`the 48-fir evacuation of' lin �na`or 11 8 are restricted to rental occu 2Ln cv...a_nd--f'(.)r---th-o-s-e--wh-o---d e-r-i v e--a-t--least 7 0%---o L-th e-i r-in c-o-rn-e--a-s > 9 members of' the workforce in Monroe County and who rneet the affordable housing incorne ......................................................................................................................................................................................................... 10 cate oriel of the 11 (c) Affordable housing allocation awards and eligibility. 12 (1) The definition of affordable housing shall be as specified in Sections 101-1 and 139-1. 13 (2)Any portion of the affordable housing allocation not used for affordable housing at the end of a 0 14 ROGO year shall be made available for affordable housing for the next ROGO year. 15 (3) No affordable housing allocation shall be awarded to applicants located within a Tier 1 4- 16 designated area, within a V-zone on the county's flood insurance rating map, or within a Tier 0 17 111-A (special protection area) designated area. ?: CD 18 Notwithstanding the foregoing, and notwithstanding Section 138-24(a)(5), affordable housing 19 ROGO allocations may be awarded to Tier I or Tier 111-A properties which meet all of the z 20 following criteria: 0 21 a. The property contains an existing market rate dwelling unit that meets the criteria in LDC 1-- 22 Section 138-22(a) and is determined to be exempt from ROGO; 0 23 b. The proposed replacement affordable dwelling unit meets current Florida Building Code and 24 is not a mobile home; 25 c. The proposed replacement dwelling unit shall be deed restricted for a period of at least 99 0 26 years as affordable housing pursuant to the standards of the Land Development Code; 27 d. The proposed site plan for the replacement affordable dwelling unit does not propose any > 28 additional clearing of habitat; and 29 e. The structure is not proposed to be within a V-zone on the county's flood insurance rating 30 map. 31 (4) Only affordable housing allocations for Big Pine Key may be used on Big Pine Key. No 0 4- 32 affordable housing allocation may be used on No Name Key. 0 33 (d) Dwelling unit allocation required. The county shall issue no building permit for a dwelling unit ?: 34 unless such dwelling unit: 35 (1)Has a dwelling unit allocation award; or 36 (2)Is exempted from the dwelling unit allocation system pursuant to this chapter or is deemed vested 37 pursuant to Section 138-22. 0 38 ifitv and redmirtyrients, 39 Pursuant Policies I., .,3_5tW_1.Qj.,2.J2 Nl()nr()c County establishes a new allocat ion 40 c a te&Tory_to award 300 workforce 1i ou SiLg earl v_.eLac ua ti on unit b u i I di n i4 erm i t allocations 41 to the Workforce-Affordable HousingJaitiative.. orkft� tiative�, The�W orce U) .................................................................................................................................................................. .............................. (-��orce fn�i ork�f -�,z\fford&able co i 42 11c>rlsi n 1nitia ive will require clwellin units ct>nstactecl and or deed restricted with workforce (0 43 11 evacuation building en-nit allocations to evacuate occunants in Phase I of the 48-1ir 44 evacuatio ofa oendini4 rn or l'i urri c an e CD L C14 --------------------LL ---------- 45 fjjDwelling units develop 1gd/or deed restricted s a.&tlj��.M�S.jjjiforce initiative allocation le ................................................................................. ............................... ......................................................................................................................... 46 E 47 Requ ests uests for workforce housing.! El for ......................._ �4 48 a--I -f--o--r--1 for affordable allocatigns_/Lex_ein�ti-o---n---s-- n-d----reclulre a reser vation via B BOCC Staff Report Page 19 of 34 File 4 2020-068 Packet Pg. 3892 I resolution, The.BOCC rngy_.sjt.its.discretion place� _ ions on anv reservation as it deep U .resolution ......................................... ........................................... ...................................... 2 �2RL.)2riTte, The BOCC i ts----- d' djange existing reserved affordable -----3 allocations f(.)r allocations under the Worki"orce fnitiative to -private..develop .................................................................................................................................................................................................................................................................................................. _.......................... .............................. �j 4 n orkf(.)rce housingy early 5 evacuation unit allocations, Further,the BOCC may...g.its discretion ..gpp nii4e.......................................................................................................................................................... ................................................................ ......................................................... 0 6 of,existi fTordabile exel ----------------- s U n i4 7 multif"arni1v residential develoiNnents f(.)r allocations under the Worki"orce Initiative to rivate ............................................. 8 develo rent and nt nPft fit sects f Paftnefs willing tt meet the requirements of`the workf(.)rce > 9 ht>Lrsrn ehly evacuation unit allocations, 10 ]--,--I'li-e-aff(.)rdabl-e-a-11-o-ca-ti-ons-re-turn-ed-to--tli-e-Coun-tv-i-n--exclian,i4e for workforce housim4 eat. 11 evacuation unit... shall be banked and used f(.)r ftiture administrative relief' .................................................................................................................................................................................................................................................................................................................................................................................................. 12 beneficial use determinations and to resolve inverse condernnation cases and Bert J, 13 Har............ris. Jr, Private Erg(perry Protection Act cases, 0 ....... 14 2, To maintain consistencv with Rule 28-20,-140(2)(b)., F,A_C,., the affordable allocations 15 returned to.ttie..Countv shall be maintained as affordable allocations and shall also be .............................................................. ...............County 4- le 16 returned to the nal affordable housing income category_ very ow/jnedian ------------------------ ­­­­­­­­- 0 17 income vs...moderate inc.o...rn.e.p�.I�.jj) 18 3 Theworkf()rce C?D: housing early__eL�Luation unit allocations must be utilized based on the 19 roved aff(.)rdable.li . ......................................................... ins income cateVory or a lesser income catei4oi­NT =T............................................. Z 20 4, A.-di-n-in-i-s-tra-ti-ve--re-li-ef'--i-yi-ea-n-s acts-ons Liken by the--County graryting—dhe owner off real 0 21 PET e of`Growth Ordinance R CL 22 restrictions_pft.)vided they_i1jeLt_LtI _criteria established in the_Cornoreliensive Plan and 0 23 L,and Devel�.�pj:neE.t.C�.jde, .......................... .............. 24 5, Beneficial use means th, use o 1 ))�ertK-tli-a-t-a-l-l-ow-s--an--own-er--to-d-erive a benefit oui0fit --------------------------------------------------- L11 ­­­­­­­­-­ 25 in the exercise of'a basic yh t For th os 0 c in:the ...ftijis.p�2!i y,.ben�fijal use shal 1 0 ........ ........ .................................................... Ca 26 -m---ean-----t.-h---e---m----i-.n---i--m----u-m------u--s--e-- of_'_th_e_ �L_qvidtIie findi i oa regulatory 27 takngjjj &��jeDI I _ > 28 b_,___The con-s-truc-ti-on--of'--dwel-li-ni4 units the redevelopment or the deed restriction of existing 29 d ell' workf(.)rce ..........j.n_g_!jnjtL._!jtjjjzjM..............._................................................ 30between the BOCC and the applicant t( 31 officiallvexcham4e the allocations and confirm..compliancewith the.re. ts Worki"orce 0 ....................... ....................................................................... 4- 32 fnitiative, 0 33 c, All workforce housin nsurim4: ........................................................................................................ 34 1, Bef(.)re anv buildi v be issued for anv structure., )ortion or Please of' 11, of`a NO Ct---------------­­­-- ------------------------ 35 s ect to the Worki"orce f nitiatIve a restrictive covenant stiall....b...................................................................................................................................... ......e th e ........................................................ 36 Planning Director and CourytyAttomey and recorded in the Office of' the--Clerk of the 37 C...t.jqfl.ty ) ensure corn f, this section.ru n n Jn favor of the a.n..c..e.....w.i t1i t1io-plom lam_0.........................................................................compliance... ........ 0 38 County and enforceable by the Countv and., if'Aa olicable. I i t7V 39 1 he f ollowrn fecLrrfements shall a ty to these restrictive covenants., 40 i, The covenants f )r anvworkf()re housing ealy__ LLuation nits shall-be-eff--e---c--tiv- 41 for 99.years, ( - -- -- --- -- U)I ............. Co 42 ii, The covenants shall not corm-nence rrrrtnrn Lentil a certificate of'occu has been 43 issue by the Buildim4 Official f'or the dwelling unit or dwelli ST units to which the .................... ...... .......................................................... ............................ 44 covenant- - -or--c-ov en a n-ts--mml Y-1 45 iii, For existing dwelling that are deed-restricted as workforce housin y ................................................................ ..................................................................................................................................................................................................................................._q_gqjL 46 evacuation units., the covenants shall commence running_LiPc�n fect�ftlatit�n in t1�e E 47 OfTicial Records of Monroe CoUntV, ........................................................................................................................................................ BOCC Staff Report Page 20 of 34 File 4 2020-068 Packet Pg. 3893 1 2e I.Iie c.o.y.e.n.a.u.1s s1lat] r.e. uire that the workforce housim4 early evacuation units to be U 2 restri-c-ted---to---ren-tal---o_cc_UpLncyjt.r---tli-o-s-e--wlio--deri-v-e--a-t---le_ast__7_0_%__of'__tIi_err---i-n-c-orn-e--a-s- _j 3 members of' the workforce in Monroe .Count7v and who meet the affordable housing 1 ............................................................................................................................................................................. ........................... 4 income cate��,(.)ries�()fthe Code, The oc-cl,------------------------------ 5 re aired to annually verifv their ei olownent and income eli 0 6 3, The covenants shall rea r oc u netts_to evacuate in Phase I ofthe 48-fir evacuation of'a --------------------------------------------------------MEL c p_q------------------------------------------------------------------------------------------------------_11_21_1- 7 p !jcjjjgj-na, so_j�gEjjurricane, Per ns living in the workforce liousim4 early evacuation units .............................................................................living 8 who may b Le���I�nnteLtj uai i2 fro evac _� _rec urrernernas are limited to law enforcement, > -­­­ ­­­­­­­­­ �.j ....... 9 c...o..r...re.....c......t..i..o....n.a.l.........a.n.d............f...i.r.e...........eW�o n j. health care _and 2ublic _ernployees with 10 emergency a silliji��rLnc rn— ­_-an _ties, if there is_an_occupant that indicates their 11 ern......p..gyInent is considered a �Cjrst:res jer osition' and not included in the list of 0 ........................................................................................................................... 12 then the Planning Director shall determine, in writing.�y Whether the U) m__ __ it to remain duringan erner pn i4 0 .P. iHi M 14 peLvLjtj clairn' on Crueler - s PLLLsEinu _sh_a].I s u_h--m_-iI-t- of- min_ a-1-f1fi1-d1av-i--t- of' 0 ­ 15 ement, 0. 4— 16 4, The covenants shall rLc le Lgirerental nreernents which contain a se)arate disclosure --------------------------------------------------------- 0 17 re Lrrrrn rental oc knowlech4e the existim4 restrictive covenant on the unit ?: 18 recfiilrin evacna ion in Phase I of`the 48-fir evacuation and that failure to adhere to the CD 19 ....h.....a.s....e..........I.......ev.a......c....u...a.t..i.o.....n.........r.e.L. i rem ert�c Oul d result in severe genaltres.. �oo z 20 Ale-_t�oclip-a!2i'. 0 21 5, The covenants shall r and a s ........................................................................................................ CL 22 disclosure-re uirim4 the maintenance of' trainim4 in evacuati dures and an 0 23 ackn o.w.le..c.Wernent thar failure to adhere to the Phase I evacuation reaurrement could 24 resu_111nse_ver_emenalties, inclLrclin terrninatitrne 25 d, Workforce housi 0 ..................................................................................... CO 26 wtio-de-ri-v-e--at--Ie-as-t-70%--o-f'-tli-ei-r-i-nc-o-i-yi-e--as--i-yi-ei-yi-b-ers-of'-tli-e-work-f'(.)rc-e-i-n--Monroe--C-oun-t7v--an-cl- 27 who meet the affordable..Jiou 1 es of' the Monroe Co L,and > ......................................................................................................................... .............. D w 28 D-ev-eiL)pinLi2_�_L�.Ide-,---'A,'-orkf(.)r-c e__rn_e a_n_s__i-n-di-vi d ua_I_s__orf'a_rn_i_I_i_e s__wh_o__are-gainfully__eln ltrvet- >% 29 su P 0_1residents or visitors, 30 -e--,---Wo-r--k---f-or--c---e----housing early_eLa­cuat­io­n­­un­it­s ­sl­ia­l­L­rea u­i­re­_­ns­i­te­_RLUertK_-ngw L_gernent with 31 P.rt>Perty rnana ers trained in evacLra it>n Prt>ceclLrres ncl reclLrirecl to manage..the evacuation 0. ................................................................ 4— le 32 oftenants in Phase f of an evacuation,Durim4 traditional workim4 hours. th m 0 33 must beat an office within the workforce jiousin2��������.t.................................................................................................................................................................................................................. CD 34 ger i-nust be available at CD�2utside thmete traditmetional working hours. the rD 35 all times to res ond to evacuation orders, ...........................................................P-------------------------------------------------------- 36 f', TIie__prg)pertK_iLi�a!j�-Lg�erneryt eryt�tv__L�.IL__LtIL_workf(.)rce liou.���_evacuation units shall be 37 re uired to annually verifv the ei olownent and income eli6bilitV of`tenants rt...the..I.Q ta.1 0 38 units on the side dime rice rates ofunits., and tenant coi Hance with the r 0 -------------------------------t_­­I­­­­Lipari c y.............................................................m 39 e.ya.g.uate t1i e.....u.n. J t.s in Rb ace f.....of'...An e.y..a.c u.a.ti.o.n.—i n c I u d i n g—th e number of occupants that are w 40 exei-not froi-n the ev ........... ­ - ­ _acua_tt_on......q_re_ui_r_erne_n_ts_, TIie.....pLgpertK rnana ernert entity �uh­­it 41 -a-- r ort to the PI n i s u c s e U) a n n Ind..F�,rryironmental Re o r e _D p_.gp _qIII......................_................................... ................................................................................................. ............. CO 42 Further, each lease and this annual__Lg2ort_shall be kept by _the ger and be ------------------------- -­­­­­­ 43 available for insp..ecti by the County during traditional workim4 hours, .................................................................. ........... 04 44 g, Workforce housing early evacuation remits--shall--h-e-located wi_th_i_nan area designated as Tier C44 45 fff, 46 11, Workforce Ii-ollsill.I.T,_eCIrlK--ev-ac-uati-on uni-ts shall n-o-t--be loca-te-d in the V--zon_e__or__wi_th_in__a E 47 Coastal Barrier Resource Sy ern C BR.S ..................................................................................................................... _sjt� BOCC Staff Report Page 21 of 34 File 4 2020-068 Packet Pg. 3894 I i, " orkforce ho s m4 early evacuation units shall be located on a Joro,oertv which has all U ............................................................ 2 i nfastr-ucture availb le LLILL qLt�qj � ELtewa-ter tre -tinentand di.�IL)sal -r - ------ --- - ---- � ,---- L --- -- a ---- __ -J 3 wast.ew.ate.r meeting.. . paved road�s-..gt 4 i e <All workforce housing earlv_.eL�cuation units must dernonstrate col Aliance with all aj)plicable -------------------------------------------------- 5 federal standard s for accessibili ............. 6 k, I,o til ing workforce liousim4 early 7 evacuation unit allocations s a I �L.jrporate sustainable and resilient design n i les into .......................................................................................................................... .................................................................................................................................................. ................................. 8 the overall V " est., Stock fsland > - --overall-- - - - - 0--------------------------------------------- 9 a..n..d.....M.a. .r.a d'i o..n..,. 10 11 12 IV. CONSISTENCY WITH THE MONROE COUNTY LAND DEVELOPMENT CODE 13 0 14 The proposed amendment is consistent with one or more of the required provisions of LDC Section 102- 15 158(d)(7)(b): 0 16 0 17 1. Changed projections (e.g., regarding public service needs) from those on which the text or ?: CD 18 boundary was based; 19 N/A z 20 0 21 2. Changed assumptions (e.g., regarding demographic trends); 22 N/A 0 23 24 3. Data errors, including errors in mapping, vegetative types and natural features described in 25 volume I of the plan; 0 26 N/A 27 > 28 4. New issues; 29 30 Due to Hurricane Irma on September 10, 2017, there was significant damage and destruction to 31 housing in the Florida Keys, particularly to the housing accessible to the affordable/workforce 0 19 32 groups. Further, due to the public health emergency and the economic impacts of COVID- 0 33 19/novel Coronavirus which have been significant globally,to Florida and specifically to Monroe ?: 34 County, the results of the economic downturn is anticipated to increase the demand for the 35 availability of housing opportunities for lower income groups. The need to protect and preserve 36 an adequate inventory of affordable/workforce accessible housing is a continual as well as a 37 growing challenge in the Florida Keys, particularly after the impacts of Hurricane Irma. 0 38 39 On May 2, 2018, Governor Rick Scott issued a press release outlining an initiative to the Florida W 4-- 40 Department of Economic Opportunity("DEO")for a Keys Workforce Housing Initiative(exhibit 41 1). The proposed initiative would allow 1,300 additional Rate of Growth Ordinance (ROGO) U)I co 42 allocations throughout the Florida Keys (ROGOs or Building Permit Allocation Systems) for (0 43 rental workforce housing, with a condition that the rental occupants evacuate in the early phase 44 (48-hour window) of a hurricane evacuation. Any development receiving the units would be 45 required to sign a rental management agreement indicating they would be required to assure the 46 evacuation of all occupants of the development. Under the initiative, each jurisdiction would be E 47 eligible to receive up to 300 of these units. The press release specifically stated, "To meet the 48 increased demand for workforce housing,the innovative Keys Workforce Housing Initiative will BOCC Staff Report Page 22 of 34 File 4 2020-068 Packet Pg. 3895 S.2.b I require new construction that participates to commit to evacuating renters in the 48-hour window U 2 of evacuation." 3 N 4 On June 13, 2018, the Florida Administration Commission approved the Workforce Housing 5 Initiative. 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 7 for rental workforce housing with the condition of early evacuation. 8 > 9 As directed by the BOCC on February 19, 2020 and July 15, 2020,the Monroe County Planning 10 & Environmental Resources Department is proposing an amendment to the Land Development 11 Code amending the Section 138-24, Residential ROGO Allocations, to establish a new building C 12 permit allocation category to award 300 workforce housing early evacuation unit building permit 13 allocations pursuant to the Workforce-Affordable Housing Initiative (Workforce Initiative) c 14 authorized by the Florida Administration Commission and the Florida Department Economic 15 Opportunity and to establish the specific Workforce Initiative requirements. 0 16 17 5. Recognition of a need for additional detail or comprehensiveness; or � 18 19 The County is proposing text amendments to the Monroe County 2030 Comprehensive Plan 20 Future Land Use Element and the Housing Element to establish a new building permit allocation 21 category to accept and award 300 workforce housing early evacuation unit building permit � 22 allocations pursuant to the Workforce-Affordable Housing Initiative (Workforce Initiative). 0 23 i 24 The proposed text amendments to Section 138-24 are necessary to be consistent with the 25 proposed comprehensive plan amendments. Sections 163.3194 and 163.3201, F.S., require land 0 26 development regulations to be consistent with and implement the Comprehensive Plan. 27 > 28 6. Data updates; 29 N/A 30 31 In no event shall an amendment be approved which will result in an adverse community change 0 le 32 to the planning area in which the proposed development is located or to any area in accordance 33 with a livable communikeys master plan pursuant to findings of the board of county ?: 34 commissioners. r9 35 36 Based on the BOCC policy direction provided on July 15, 2020, the proposed text amendment 37 is not anticipated to have an adverse community change. 38 39 The BOCC's policy direction limits the use of the 300 workforce housing early evacuation unit 40 building permit allocations for only the exchange of affordable allocations and not for the 41 development of new (not approved or built) units, thereby not increasing current development U)i co 42 potential. As such, the workforce housing early evacuation unit building permit allocations 43 would be used at sites with existing approvals/dwelling units and require early evacuation of 44 the occupants, but should not otherwise change the development on the site. 45 46 E BOCC Staff Report Page 23 of 34 File 4 2020-068 Packet Pg. 3896 S.2.b I V. CONSISTENCY WITH THE MONROE COUNTY COMPREHENSIVE PLAN, THE ca 2 PRINCIPLES FOR GUIDING DEVELOPMENT,AND FLORIDA STATUTES. 3 N 4 A. The proposed amendment is consistent with the Goals, Objectives and Policies of the Monroe 5 County 2030 Comprehensive Plan. Specifically,it furthers: 6 7 GOAL 101: Monroe County shall manage future growth to enhance the quality of life, ensure the safety of 8 County residents and visitors, and protect valuable natural resources. > 9 10 Objective 101.2: As mandated by the State of Florida,pursuant to Section 380.0552,F.S.and Rule 28-20.140, 11 F.A.C., and to maintain the public health, safety, and welfare, Monroe County shall maintain a maximum Cs 12 hurricane evacuation clearance time of 24 hours and will coordinate with the State Land Planning Agency 13 relative to the 2012 Memorandum of Understanding that has been adopted between the County and all the 0 14 municipalities and the State agencies. 15 2 16 Policy 101.2.1: Monroe County shall maintain a memorandum of understanding with the State Land Planning 4- 17 Agency, Division of Emergency Management, Marathon, Islamorada, Key West, Key Colony Beach, and 0 18 Layton to stipulate,based on professionally acceptable data and analysis,the input variables and assumptions, 19 including regional considerations, for utilizing the Florida Division of Emergency Management's (DEM) 20 Transportation Interface for Modeling Evacuations("TIME")Model to accurately depict evacuation clearance z 21 times for the population of the Florida Keys. 22 a. 23 Policy 101.2.2 24 Monroe County shall coordinate with all the municipalities, the State Land Planning Agency and Division of 25 Emergency Management to update the variables and assumptions for the evacuation clearance time modeling U� 26 and analyses of the build-out capacity of the Florida Keys Area of Critical State Concern based upon the 27 release of the decennial Census data. Pursuant to the 2012 completed hurricane evacuation clearance time 28 modeling by the State Land Planning Agency, which incorporates the 2010 Census data, the County may 29 allocate 10 years' worth of growth (197 x 10 = 1,970 allocations, 197 annual ROGO rate based on Rule 28- 30 20.140, F.A.C.) through the year 2023, while maintaining an evacuation clearance time of 24 hours. The 31 County will adopt_a slower rate of annual allocations for market rate development to extend the allocation 32 timeframe to 2033 without exceeding the total of 1,970 allocations (see Policy 101.3.2). The County shall 33 reevaluate the annual ROGO allocation rate based on: 1) statutory changes for hurricane evacuation clearance 0 34 time requirement standards; 2) new hurricane evacuation modeling by the State Land Planning Agency and 35 Division of Emergency Management; and 3) a new or revised memorandum of understanding with the State ?: 36 Land Planning Agency,Division of Emergency Management,Marathon, Islamorada,Key West,Key Colony CD 37 Beach and Layton(see Policy 101.2.1). 38 39 Policy 101.2.4 i 40 In the event of a pending major hurricane (Category 3-5) Monroe County shall implement the following 0 41 staged/phased evacuation procedures to achieve and maintain an overall 24-hour hurricane evacuation 42 clearance time for the resident population. 43 1. Approximately 48 hours in advance of tropical storm winds, a mandatory evacuation of non-residents, 44 visitors, recreational vehicles (RVs), travel trailers, live-aboard vessels (transient and non-transient), 45 and military personnel from the Florida Keys shall be initiated. State parks and campgrounds should be 46 closed at this time or sooner and entry into the Florida Keys by non-residents should be strictly limited. N 47 2. Approximately 36 hours in advance of tropical storm winds, a mandatory evacuation of mobile home N 48 residents, special needs residents, and hospital and nursing home patients from the Keys shall be 49 initiated. E BOCC Staff Report Page 24 of 34 File 4 2020-068 Packet Pg. 3897 S.2.b 1 3.Approximately 30 hours in advance of tropical storm winds,a mandatory phased evacuation of permanent c, 2 residents by evacuation zone (described below) shall be initiated. Existing evacuation zones are as 3 follows: N 4 a) Zone 1 -Key West, Stock Island and Key Haven to Boca Chica Bridge (MM 1-6) 5 b) Zone 2 - Boca Chica Bridge to West end of 7-mile Bridge (MM 6-40) 6 c) Zone 3 -West end of 7-Mile Bridge to West end of Long Key Bridge (MM 40-63) 0 7 d) Zone 4 - West end of Long Key Bridge to CR 905 and CR 905A intersection (MM 63-106.5 and 8 MM 1-9.5 of CR 905) 9 e) Zone 5 - 905A to, and including Ocean Reef(MM 106.5-126.5) > 10 11 The actual sequence of the evacuation by zones will vary depending on the individual storm. The concepts 12 embodied in this staged evacuation procedures should be embodied in the appropriate County operational 13 Emergency Management Plans. v� 14 0 15 The evacuation plan shall be monitored and updated on an annual basis to reflect increases, decreases and or 16 shifts in population;particularly the resident and non-resident populations. 17 18 For the purpose of implementing Policy 101.2.4, this Policy shall not increase the number of allocations to c 19 more than 197 residential units a year,except for affordable housing.Any increase in the number of allocations 20 shall be for affordable housing. 21 22 Objective 101.3: Monroe County shall regulate new residential development based upon the finite carrying 0 23 capacity of the natural and man-made systems and the growth capacity while maintaining a maximum CL 24 hurricane evacuation clearance time of 24 hours. 0 25 i 26 Policy 101.3.1: Monroe County shall maintain a Permit Allocation System for new residential development 27 known as the Residential Rate of Growth Ordinance (ROGO) System. The Permit Allocation System shall 0 28 limit the number of permits issued for new residential dwelling units. The ROGO allocation system shall 29 apply within the unincorporated area of the county, excluding areas within the county mainland and within 30 the Ocean Reef planned development(Future development in the Ocean Reef planned development is based 31 upon the December 2010 Ocean Reef Club Vested Development Rights Letter recognized and issued by the 32 Department of Community Affairs).New residential dwelling units included in the ROGO allocation system 33 include the following: affordable housing units; market rate dwelling units; mobile homes; and institutional 2 34 residential units (except hospital rooms). 0 35 36 Vessels are expressly excluded from the allocation system, as the vessels do not occupy a distinct location 37 and therefore cannot be accounted for in the County's hurricane evacuation model. Under no circumstances 38 shall a vessel, including live-aboard vessels, or associated wet slips be transferred upland or converted to a U� 39 dwelling unit of any other type. Vessels or associated wet slips are not considered ROGO allocation awards, c� 40 and may not be used as the basis for any type of ROGO exemption or THE(Transfer of ROGO Exemption). _Ji 41 c 42 ROGO Allocations for rooms, hotel or motel; campground spaces; transient residential units; and seasonal W 43 residential units are subject to Policy 101.3.5. 44 45 Policy 101.3.2 co 46 The number of permits issued for residential dwelling units under the Rate of Growth Ordinance shall not 47 exceed a total of 1,970 new allocations for the time period of July 13, 2013 through July 12, 2026,plus any N 48 available unused ROGO allocations from a previous ROGO year. A ROGO year means the twelve-month N 49 period beginning on July 13.Market rate allocations shall not to exceed 126 residential units per year.Unused 50 allocations for market rate shall be available for Administrative Relief. 51 BOCC Staff Report Page 25 of 34 File 4 2020-068 Packet Pg. 3898 S.2.b I In 2012, pursuant to Rule 28-20.140, F.A.C., the Department of Economic Opportunity completed the U 2 hurricane evacuation clearance time modeling task and found that with 10 years' worth of building permits, 3 the Florida Keys would be at a 24 hour evacuation clearance time. This creates challenges for State of Florida N 4 and Monroe County as there are 8,168 privately owned vacant parcels [3,979 Tier I; 393 Tier II,260 Tier III- 5 A (SPA); 3,301 Tier III, and 235 No tier(ORCA, etc.)] and with 1,970 new allocations this may result in a 6 balance of 6,198 privately held vacant parcels at risk of not obtaining permits in the future. In recognition of 0 7 the possibility that the inventory of vacant parcels exceeds the total number of allocations which the State will 8 allow the County to award, the County will consider adopting an extended timeframe for distribution of the 9 ROGO allocations through 2033 with committed financial support from its State and Federal partners. This > 10 timeframe can provide a safety net to the County and provide additional time to implement land acquisition ?� 11 and other strategies to reduce the demand for ROGO allocations and help transition land into public 12 ownership. 13 14 The County is actively engaged in acquisitions and is requesting its State and Federal partners for assistance 0 15 with implementing land acquisitions in Monroe County.The County will allocate the 1,970 new dwelling unit 16 allocations over a 10 year timeframe.If substantial financial support is provided by July 12,2018,the County 17 will reevaluate the ROGO distribution allocation schedule and consider an extended timeframe for the 18 distribution of market rate allocations (through a comprehensive plan amendment). Further, the State and c 19 County shall develop a mutually agreeable position defending inverse condemnation cases and Bert J. Harris, 20 Jr. Private Property Rights Protection Act cases, with the State having an active role both directly and 21 financially in the defense of such cases. z 22 0 23 The County shall distribute ROGO allocations by ROGO year, as provided in the table below. °CL ® 24 0 25 26 27 Policy 101.3.3: Monroe County shall allocate at least 20% of the annual allocation, or as may be established 0 28 by the State of Florida,pursuant to Administration Commission Rules, to affordable housing units as part of 29 ROGO.Any portion of the allocations not used for affordable housing shall be retained and be made available 30 for affordable housing from ROGO year to ROGO year. Affordable housing eligible for this separate 31 allocation shall meet the criteria specified in Policy 601.1.4 and the Land Development Code,but shall not be 32 subject to the competitive Residential Permit Allocation and Point System in Policy 101.6.4. Any parcel 33 proposed for affordable housing shall not be located within an area designated as Tier I as set forth under Goal 34 105 or within a Tier III-A Special Protection Area as set forth in Policy 205.1.1. 0 35 36 Notwithstanding the foregoing, and notwithstanding Policy 101.6.2. affordable housing ROGO allocations 37 may be awarded to Tier I or Tier III-A properties which meet all of the following criteria: 38 1. The property contains an existing market rate dwelling unit that meets the criteria in LDC Section 138- U� 39 22(a) and is determined to be exempt from ROGO; c� 40 2. The proposed replacement affordable dwelling unit meets current Florida Building Code and is not ai 41 mobile home; c 42 3. The proposed replacement dwelling unit shall be deed restricted for a period of at least 99 years as W 43 affordable housing pursuant to the standards of the Land Development Code; and 44 4. The proposed site plan for the replacement affordable dwelling unit does not propose an additional p p p p g p p Y v) 45 clearing of habitat. co 46 CD 47 Policy 101.3.5: Due to the limited number of allocations and the State's requirement that the County maintain N 48 a maximum hurricane evacuation clearance time of 24 hours, Monroe County shall prohibit new transient N 49 residential allocations for hotel or motel rooms, campground spaces, or spaces for parking a recreational 50 vehicle or travel trailer until May 2022. Lawfully established transient units shall be entitled to one unit for 51 each type of unit in existence before January 4, 1996 for use as a ROGO exemption. 52 BOCC Staff Report Page 26 of 34 File 4 2020-068 Packet Pg. 3899 S.2.b I Policy 101.7.1: Monroe County, the state,or other acquisition agency shall,upon a property owner's request, t, 2 offer to purchase the property for fair market value or permit the minimum reasonable economic use of the 3 property, if the property owner meets the following conditions: N 4 1. they have been denied an allocation award for four successive years in the Residential (ROGO) or 5 Nonresidential(NROGO)Permit Allocation System; 6 2. their proposed development otherwise meets all applicable county, state, and federal regulations; 0 7 3. their allocation application has not been withdrawn; 8 4. they have complied with all the requirements of the Residential or Nonresidential Permit Allocation 9 System; and > 10 5. they follow the procedures for administrative relief contained in the land development regulations. ?� 11 As used in this Policy, "minimum reasonable economic use" shall mean, as applied to any residentially zoned 12 parcel of record which was buildable immediately prior to the effective date of the Plan,no less than a single- 13 family residence. v� 14 A purchase offer is the preferred option for administrative relief, if the subject permit is for development 0 15 located within: 16 1. a designated Tier I area or within the Florida Forever (or its successor) targeted acquisition areas 17 (unless, after 60 days from the receipt of a complete application for administrative relief, it has 18 been determined no county, state or federal agency or any private entity is willing to offer to 0 19 purchase the parcel); 20 2. a designated Tier II or III-A (Special Protection Area); or, 21 3. a designated Tier III area on a non-waterfront lot for affordable housing. z 22 Refusal of the purchase offer by a property owner shall not be grounds for the granting of a ROGO or NROGO 0 23 allocation award. °CL ® 24 0 25 Objective 101.17: Monroe County shall protect established rights of landowners affected by the provisions i 26 of this Plan or the land development regulations; and, therefore adopts the following policies for the 27 determination of vested rights and beneficial use. 0 28 29 Policy 101.17.4: BENEFICIAL USE 30 1.It is the policy of Monroe County to ensure that neither the provisions of this Plan nor the LDC shall result 31 in an unconstitutional taking of private property.Accordingly,Monroe County shall adopt a beneficial use 32 procedure to provide a means to resolve a landowner's claim that a land development regulation or 33 comprehensive plan policy has had an unconstitutional effect on property in a nonjudicial forum. For the 34 purpose of this policy,beneficial use shall mean the minimum use of the property necessary to avoid the 0 35 finding of a regulatory taking under current land use case law. 0 36 2. The relief to which an owner shall be entitled may be provided through the use of one or a combination of 37 the following: 38 a) granting of a permit for development which shall be deducted from the Permit Allocation System; U� 39 b) granting of use of transferable development rights (TDRs); c� 40 c) Government purchase offer of all or a portion of the lots or parcels upon which there is no beneficiali 41 use. This alternative shall be the preferred alternative when beneficial use has been deprived by 0 42 application of Chapter 138 of the Land Development Code. This alternative shall be the preferred w 43 alternative for Tier I, II, or III-A(SPA) lands; ; 44 d) such other relief as the County may deem appropriate and adequate. 45 The relief granted shall be the minimum necessary to avoid the finding of a regulatory taking of the co 46 property under state and federal law. With respect to the relief granted pursuant to this policy or Policy 47 101.7.1 (Administrative Relief), a purchase offer shall be the preferred form of relief for any land within N 48 Tier I and Tier II, or Tier III-A (SPA). N 49 3. Development approved pursuant to a beneficial use determination shall be consistent with all other 50 objectives and policies of the Plan and LDC unless specifically exempted from such requirements in the 51 final beneficial use determination. BOCC Staff Report Page 27 of 34 File 4 2020-068 Packet Pg. 3900 S.2.b 1 4. This policy is not intended to provide relief related to regulations promulgated by agencies other than the U 2 county or to provide relief for claims that are not cognizable in court at the time of application of this 3 policy. Further, the procedures established for this policy are not intended, nor do they create, a judicial ' N 4 cause of action. 5 5. The land development regulations shall establish standards,procedures, and remedies for an administrative 6 determination of beneficial use. 0 7 8 Goal 601: Monroe County shall adopt programs and policies to facilitate access by residents to adequate and 9 affordable housing that is safe, decent, and structurally sound, and that meets the needs of the population > 10 based on type, tenure characteristics,unit size and individual preferences. 11 � 12 Objective 601.1: Monroe County shall implement the following defined policies to reduce estimated 13 affordable housing need for households in the very low, low,median and moderate income classifications. v� 14 0 15 Policy 601.1.4: All affordable housing projects which receive development benefits from Monroe County, 16 including but not limited to ROGO allocation award(s)reserved for affordable housing,maximum net density, 17 or donations of land, shall be required to maintain the project as affordable for a period of 99 years pursuant 18 to deed restrictions or other mechanisms specified in the Land Development Code, and administered by 0 19 Monroe County or the Monroe County Housing Authority. 20 21 Policy 601.1.8: Monroe County shall allocate at least 20% of the annual ROGO allocation, or as may be Z 22 established by the State of Florida,pursuant to Administration Commission Rules,to affordable housing units, 0 23 as specified in Policy 101.3.3. Affordable housing eligible for this separate allocation must meet the criteria CL 24 established in the Land Development Code. 0 25 i 26 Policy 601.1.9: Monroe County shall maintain land development regulations which may include density 27 bonuses, impact fee waiver programs, and other possible regulations to encourage affordable housing. 28 i 29 Objective 601.3: Monroe County shall continue implementation efforts to eliminate substandard housing and 30 to preserve, conserve and enhance the existing housing stock,including historic structures and sites. 31 32 33 B. The amendment is consistent with the Principles for Guiding Development for the Florida Keys 2 34 Area, Section 380.0552(7), Florida Statutes. 4- 35 c 36 For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the 37 principles for guiding development and any amendments to the principles, the principles shall be construed 38 as a whole and no specific provision shall be construed or applied in isolation from the other provisions. U 39 40 (a) Strengthening local government capabilities for managing land use and development so that local 41 government is able to achieve these objectives without continuing the area of critical state concern 42 designation. 43 (b) Protecting shoreline and benthic resources, including mangroves, coral reef formations, seagrass beds, 44 wetlands, fish and wildlife, and their habitat. v) i 45 (c) Protecting upland resources, tropical biological communities, freshwater wetlands, native tropical co 46 vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and I 47 their habitat. 04 48 (d) Ensuring the maximum well-being of the Florida Keys and its citizens through sound economic 04 49 development. 50 (e) Limiting the adverse impacts of development on the quality of water throughout the Florida Keys. BOCC Staff Report Page 28 of 34 File 4 2020-068 Packet Pg. 3901 S.2.b I (f) Enhancing natural scenic resources, promoting the aesthetic benefits of the natural environment, and t, 2 ensuring that development is compatible with the unique historic character of the Florida Keys. 3 (g) Protecting the historical heritage of the Florida Keys. 4 (h) Protecting the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major 5 public investments,including: 6 1. The Florida Keys Aqueduct and water supply facilities; 7 2. Sewage collection, treatment, and disposal facilities; 8 3. Solid waste treatment, collection, and disposal facilities; 9 4. Key West Naval Air Station and other military facilities; 10 5. Transportation facilities; 11 6. Federal parks,wildlife refuges, and marine sanctuaries; 12 7. State parks,recreation facilities, aquatic preserves, and other publicly owned properties; 13 8. City electric service and the Florida Keys Electric Co-op; and v) 14 9. Other utilities, as appropriate. 0 15 (1) Protecting and improving water quality by providing for the construction, operation, maintenance, and 16 replacement of stormwater management facilities; central sewage collection; treatment and disposal 17 facilities; and the installation and proper operation and maintenance of onsite sewage treatment and 18 disposal systems. c 19 (j) Ensuring the improvement of nearshore water quality by requiring the construction and operation of 20 wastewater management facilities that meet the requirements of ss. 381.0065(4)(1) and 403.086(10), as 21 applicable, and by directing growth to areas served by central wastewater treatment facilities through z 22 permit allocation systems. 23 (k) Limiting the adverse impacts of public investments on the environmental resources of the Florida Keys. CL CL 24 (1) Making available adequate affordable housing for all sectors of the population of the Florida Keys. 25 (m)Providing adequate alternatives for the protection of public safety and welfare in the event of a natural or i 26 manmade disaster and for a postdisaster reconstruction plan. 27 (n) Protecting the public health, safety, and welfare of the citizens of the Florida Keys and maintaining the 28 Florida Keys as a unique Florida resource. 29 30 Pursuant to Section 380.0552(7) Florida Statutes, the proposed amendment is not inconsistent with the 31 Principles for Guiding Development as a whole and is not inconsistent with any Principle. 32 33 C. The proposed amendment is consistent with the Part II of Chapter 163, Florida Statute (F.S.). 2 34 Specifically, the amendment furthers: 4- 35 0 36 163.3161(4), F.S. —It is the intent of this act that local governments have the ability to preserve and enhance 37 present advantages; encourage the most appropriate use of land, water, and resources, consistent with the 38 public interest; overcome present handicaps; and deal effectively with future problems that may result 39 from the use and development of land within their jurisdictions. Through the process of comprehensive 40 planning, it is intended that units of local government can preserve, promote, protect, and improve they 41 public health,safety,comfort,good order,appearance,convenience,law enforcement and fire prevention, 42 and general welfare; facilitate the adequate and efficient provision of transportation, water, sewerage, 43 schools, parks, recreational facilities, housing, and other requirements and services; and conserve, 44 develop,utilize, and protect natural resources within their jurisdictions. v)i 45 co CD 46 163.3161(6), F.S. —It is the intent of this act that adopted comprehensive plans shall have the legal status set 47 out in this act and that no public or private development shall be permitted except in conformity with 48 comprehensive plans, or elements or portions thereof,prepared and adopted in conformity with this act. 49 50 163.3164(3),F.S.— "Affordable housing"has the same meaning as in s. 420.0004(3). 51 BOCC Staff Report Page 29 of 34 File 4 2020-068 Packet Pg. 3902 S.2.b 1 163.3177(1),F.S.—The comprehensive plan shall provide the principles,guidelines, standards, and strategies t, 2 for the orderly and balanced future economic, social,physical, environmental, and fiscal development of 3 the area that reflects community commitments to implement the plan and its elements. These principles 4 and strategies shall guide future decisions in a consistent manner and shall contain programs and activities 5 to ensure comprehensive plans are implemented. The sections of the comprehensive plan containing the 6 principles and strategies,generally provided as goals,objectives,and policies,shall describe how the local 0 7 government's programs, activities, and land development regulations will be initiated, modified, or 8 continued to implement the comprehensive plan in a consistent manner. It is not the intent of this part to 9 require the inclusion of implementing regulations in the comprehensive plan but rather to require > 10 identification of those programs, activities, and land development regulations that will be part of the ?� 11 strategy for implementing the comprehensive plan and the principles that describe how the programs, 12 activities, and land development regulations will be carried out. The plan shall establish meaningful and C 13 predictable standards for the use and development of land and provide meaningful guidelines for the v� 14 content of more detailed land development and use regulations. 0 15 16 163.3177(6)(f), F.S. — 1. A housing element consisting of principles, guidelines, standards, and strategies to 17 be followed in: 18 a. The provision of housing for all current and anticipated future residents of the jurisdiction. c 19 b. The elimination of substandard dwelling conditions. 20 c. The structural and aesthetic improvement of existing housing. 21 d.The provision of adequate sites for future housing,including affordable workforce housing as defined 22 in s. 380.0651(1)(h), housing for low-income, very low-income, and moderate-income families, LO 23 mobile homes,and group home facilities and foster care facilities,with supporting infrastructure and CL 24 public facilities. The element may include provisions that specifically address affordable housing for 25 persons 60 years of age or older.Real property that is conveyed to a local government for affordable i 26 housing under this sub-subparagraph shall be disposed of by the local government pursuant to s. 27 125.379 or s. 166.0451. 28 e. Provision for relocation housing and identification of historically significant and other housing for 29 purposes of conservation,rehabilitation, or replacement. 30 f. The formulation of housing implementation programs. 31 g. The creation or preservation of affordable housing to minimize the need for additional local services 32 and avoid the concentration of affordable housing units only in specific areas of the jurisdiction. 33 2. The principles, guidelines, standards, and strategies of the housing element must be based on data and 34 analysis prepared on housing needs,which shall include the number and distribution of dwelling units by 0 le 35 type, tenure, age,rent,value, monthly cost of owner-occupied units, and rent or cost to income ratio, and 0 36 shall show the number of dwelling units that are substandard. The data and analysis shall also include the 37 methodology used to estimate the condition of housing, a projection of the anticipated number of 38 households by size, income range, and age of residents derived from the population projections, and the 39 minimum housing need of the current and anticipated future residents of the jurisdiction. p 40 3. The housing element must express principles, guidelines, standards, and strategies that reflect, as i 41 needed,the creation and preservation of affordable housing for all current and anticipated future residents 0 42 of the jurisdiction, elimination of substandard housing conditions, adequate sites, and distribution of W 43 housing for a range of incomes and types,including mobile and manufactured homes. The element must ; 44 provide for specific programs and actions to partner with private and nonprofit sectors to address housing p p p g p p p g v) 45 needs in the jurisdiction, streamline the permitting process, and minimize costs and delays for affordable CO 46 housing, establish standards to address the quality of housing, stabilization of neighborhoods, and 47 identification and improvement of historically significant housing. N CD 48 N 49 163.3201,F.S.—Relationship of comprehensive plan to exercise of land development regulatory authority.- 50 It is the intent of this act that adopted comprehensive plans or elements thereof shall be implemented,in 51 part, by the adoption and enforcement of appropriate local regulations on the development of lands and 52 waters within an area.It is the intent of this act that the adoption and enforcement by a governing body of e( BOCC Staff Report Page 30 of 34 File 4 2020-068 Packet Pg. 3903 S.2.b I regulations for the development of land or the adoption and enforcement by a governing body of a land t, 2 development code for an area shall be based on,be related to, and be a means of implementation for an 3 adopted comprehensive plan as required by this act. N 4 5 420.0004, F.S.—Definitions.—As used in this part,unless the context otherwise indicates: 6 (1) "Adjusted for family size"means adjusted in a manner which results in an income eligibility level 0 7 which is lower for households with fewer than four people, or higher for households with more than four 8 people, than the base income eligibility determined as provided in subsection (9), subsection (11), 9 subsection(12),or subsection(17),based upon a formula as established by the United States Department > 10 of Housing and Urban Development. 11 (2) "Adjusted gross income"means all wages,assets,regular cash or noncash contributions or gifts from 12 persons outside the household, and such other resources and benefits as may be determined to be income 13 by the United States Department of Housing and Urban Development, adjusted for family size, less v� 14 deductions allowable under s. 62 of the Internal Revenue Code. 0 15 3 "Affordable" means that monthly rents or monthly mortgage a ents including taxes insurance O Y Ypayments g w 16 and utilities do not exceed 30 percent of that amount which represents the percentage of the median 17 adjusted gross annual income for the households as indicated in subsection(9),subsection(11),subsection 18 (12),or subsection(17). c 19 (4) "Corporation"means the Florida Housing Finance Corporation. 20 (5) "Community-based organization" or "nonprofit organization" means a private corporation 21 organized under chapter 617 to assist in the provision of housing and related services on a not-for-profit z 22 basis and which is acceptable to federal and state agencies and financial institutions as a sponsor of low- 23 income housing. CL 24 (6) "Department"means the Department of Economic Opportunity. 25 (7) "Disabling condition" means a diagnosable substance abuse disorder, serious mental illness, <Ci 26 developmental disability, or chronic physical illness or disability, or the co-occurrence of two or more of 27 these conditions, and a determination that the condition is: 28 (a) Expected to be of long-continued and indefinite duration; and 29 (b) Not expected to impair the ability of the person with special needs to live independently with 30 appropriate supports. 31 (8) "Elderly"describes persons 62 years of age or older. 32 (9) "Extremely-low-income persons"means one or more natural persons or a family whose total annual 33 household income does not exceed 30 percent of the median annual adjusted gross income for households 34 within the state. The Florida Housing Finance Corporation may adjust this amount annually by rule to 0 le 35 provide that in lower income counties, extremely low income may exceed 30 percent of area median 0 36 income and that in higher income counties, extremely low income may be less than 30 percent of area 37 median income. 38 (10) "Local public body"means any county,municipality,or other political subdivision,or any housing U� 39 authority as provided by chapter 421, which is eligible to sponsor or develop housing for farmworkers c� 40 and very-low-income and low-income persons within its jurisdiction. JI 41 (11) "Low-income persons" means one or more natural persons or a family, the total annual adjusted 0 42 gross household income of which does not exceed 80 percent of the median annual adjusted gross income W 43 for households within the state,or 80 percent of the median annual adjusted gross income for households 44 within the metropolitan statistical area(MSA) or, if not within an MSA, within the county in which the 45 person or family resides,whichever is greater. 46 (12) "Moderate-income persons" means one or more natural persons or a family, the total annual t° 0 47 adjusted gross household income of which is less than 120 percent of the median annual adjusted gross N 48 income for households within the state, or 120 percent of the median annual adjusted gross income for N 49 households within the metropolitan statistical area(MSA) or,if not within an MSA,within the county in 50 which the person or family resides,whichever is greater. m E 51 (13) "Person with special needs"means an adult person requiring independent living services in order 52 to maintain housing or develop independent living skills and who has a disabling condition; a young adult e( BOCC Staff Report Page 31 of 34 File 4 2020-068 Packet Pg. 3904 S.2.b I formerly in foster care who is eligible for services under s. 409.1451(5); a survivor of domestic violence t, 2 as defined in s. 741.28; or a person receiving benefits under the Social Security Disability Insurance 3 (SSDI)program or the Supplemental Security Income(SSI)program or from veterans' disability benefits. 4 (14) "Student" means any person not living with his or her parent or guardian who is eligible to be 5 claimed by his or her parent or guardian as a dependent under the federal income tax code and who is 6 enrolled on at least a half-time basis in a secondary school, career center, community college, college, or 0 7 university. 8 (15) "Substandard"means: 9 (a) Any unit lacking complete plumbing or sanitary facilities for the exclusive use of the occupants, > 10 (b) A unit which is in violation of one or more major sections of an applicable housing code and ?� 11 where such violation poses a serious threat to the health of the occupant; or 12 (c) A unit that has been declared unfit for human habitation but that could be rehabilitated for less 13 than 50 percent of the property value. v� 14 (16) "Substantial rehabilitation"means repair or restoration of a dwelling unit where the value of such 0 15 repair or restoration exceeds 40 percent of the value of the dwelling. 16 (17) "Very-low-income persons"means one or more natural persons or a family,not including students, 17 the total annual adjusted gross household income of which does not exceed 50 percent of the median 18 annual adjusted gross income for households within the state,or 50 percent of the median annual adjusted 0 19 gross income for households within the metropolitan statistical area (MSA) or, if not within an MSA, 20 within the county in which the person or family resides,whichever is greater. 21 22 420.502, F.S.—Legislative findings.- 23 (8)(b) It is necessary to create a state housing finance strategy to provide affordable workforce housing CL CL 24 opportunities to essential services personnel in areas of critical state concern designated under s. 380.05, 25 for which the Legislature has declared its intent to provide affordable housing, and areas that were i 26 designated as areas of critical state concern for at least 20 consecutive years before removal of the U 27 designation.The lack of affordable workforce housing has been exacerbated by the dwindling availability 28 of developable land, environmental constraints,rising construction and insurance costs, and the shortage �i 29 of lower-cost housing units.As this state's population continues to grow,essential services personnel vital 30 to the economies of areas of critical state concern are unable to live in the communities where they work, 31 creating transportation congestion and hindering their quality of life and community engagement. 32 33 420.503, F.S.—Definitions.— 2 34 (18) "Essential services personnel" means natural persons or families whose total annual household 0 35 income is at or below 120 percent of the area median income, adjusted for household size, and at least 36 one of whom is employed as police or fire personnel, a child care worker, a teacher or other education ?: 37 personnel,health care personnel, a public employee,or a service worker. 38 i 39 420.5095, F.S. Community Workforce Housing Innovation Pilot Program.- 40 (1) The Legislature finds and declares that recent rapid increases in the median purchase price of a homes 41 and the cost of rental housing have far outstripped the increases in median income in the state,preventing 0 42 essential services personnel from living in the communities where they serve and thereby creating the 43 need for innovative solutions for the provision of housing opportunities for essential services personnel. 44 (2) The Community Workforce Housing Innovation Pilot Program is created to provide affordable rental U) 45 and home ownership community workforce housing for essential services personnel affected by the high CO 46 cost of housing, using regulatory incentives and state and local funds to promote local public-private t° 47 partnerships and leverage government and private resources. cv 48 (3) For purposes of this section,the term: 04 49 (a) "Workforce housing" means housing affordable to natural persons or families whose total annual 50 household income does not exceed 140 percent of the area median income, adjusted for household size, 51 or 150 percent of area median income, adjusted for household size, in areas of critical state concern 52 designated under s.380.05,for which the Legislature has declared its intent to provide affordable housing, BOCC Staff Report Page 32 of 34 File 4 2020-068 Packet Pg. 3905 S.2.b I and areas that were designated as areas of critical state concern for at least 20 consecutive years prior to t, 2 removal of the designation. 3 N 4 125.01055,F.S.—Notwithstanding any other provision of law, a county may adopt and maintain in effect any 5 law,ordinance,rule,or other measure that is adopted for the purpose of increasing the supply of affordable 6 housing using land use mechanisms such as inclusionary housing ordinances. 0 7 8 9 VI. PROCESS 10 11 Land Development Code Amendments may be proposed by the Board of County Commissioners, the 12 Planning Commission,the Director of Planning,private application, or the owner or other person having 13 a contractual interest in property to be affected by a proposed amendment. The Director of Planning 0 14 shall review and process applications as they are received and pass them onto the Development Review 15 Committee and the Planning Commission. 2 16 17 The Planning Commission shall hold at least one public hearing. The Planning Commission shall review c 18 the application, the reports and recommendations of the Department of Planning & Environmental 19 Resources and the Development Review Committee and the testimony given at the public hearing. The `'" 20 Planning Commission shall submit its recommendations and findings to the Board of County 21 Commissioners (BOCC). The BOCC holds a public hearing to consider the adoption of the proposed CL 22 amendment, and considers the staff report, staff recommendation, Planning Commission 23 recommendation and the testimony given at the public hearing. The BOCC may adopt the proposed 24 amendment based on one or more of the factors established in LDC Section 102-158(d)(7). 25 U 26 In cases in which the proposed ordinance changes the actual list of permitted, conditional, or prohibited i 27 uses within a zoning category, the board of county commissioners shall hold two (2) advertised public 28 hearings on the proposed ordinance. 29 30 VII. STAFF RECOMMENDATION 31 0 32 Based on the BOCC direction to staff on February 19, 2020 to start the process to accept the 300 33 workforce housing units and on July 15, 2020, to accept the 300 workforce housing early 0 34 evacuation unit building permit allocations to be used in exchange for existing affordable 35 allocations at multifamily developments (for developers that agree to the early evacuation 36 restriction) and the affordable housing allocations returned to the County (returned in the 37 exchange) be set aside and banked for takings cases (bank them within an administrative reliefs 38 pool), staff recommends approval. 0 39 40 The BOCC's policy direction limits the use of the 300 workforce housing early evacuation unit building 41 permit allocations for only the exchange of affordable allocations and not for the development of new v)i 42 (not approved or built) units, thereby not increasing current development potential_ co CD 43 As such, the workforce housing early evacuation unit building permit allocations would be used at sites 44 with existing approvals/dwelling units and require early evacuation of the occupants, but should not 45 otherwise change the development on the site or countywide. The BOCC direction of making this 46 program for the exchange of allocations, maintains the County's focus on redevelopment and infill by 47 swapping allocations types and including additional requirements (ex: early evacuation) on existing 48 approvals and not incentivizing new development or encroachments into habitat with new development. BOCC Staff Report Page 33 of 34 File 4 2020-068 Packet Pg. 3906 S.2.b 1 U 2 Further, the BOCC policy direction included that the affordable allocations returned to the County in _j 3 exchange for workforce housing early evacuation unit allocations shall be banked to resolve takings. 4 Banking these units may provide the County with an option to address potential liability for future 5 inverse condemnation cases and Bert J. Harris, Jr. Private Property Rights Protection Act cases for the 6 undeveloped,privately-owned parcels in the County which far exceed the remaining permit allocations. 7 8 Staff does not recommend approval of the general acceptance of the 300 workforce housing early 9 evacuation unit building permit allocations, without the criteria and provisions explained above and 10 included in proposed language as identified in Section III (proposed land development code text 11 amendments) of this Report. 12 v, 13 VIII.EXHIBITS c 14 15 1. May 2, 2018, Governor Rick Scott press release outlining an initiative to the Florida Department 0 16 of Economic Opportunity ("DEO")for a Keys Workforce Housing Initiative. 2- 17 2. DEO provided preliminary draft language based on the minimum requirements established in the ?: CD 18 Keys Workforce Housing Initiative to use as a starting point. 19 3. County Takings Claims Bill Whitepaper 20 4. Administrative Law Judge recommended order recommending approval of Marathon,Key West, 21 and Islamorada's respective ordinances accepting the 300 ROGOs under the Workforce Housing CL 22 Initiative. 23 5. Islamorada (Ordinance 19-03) Comprehensive Plan amendment to accept the 300 Workforce i 24 Housing units 25 6. Marathon (Ordinance 2018-09) Comprehensive Plan amendment to accept the 300 Workforce 26 Housing units 27 7. Key West (Ordinance 19-06) Comprehensive Plan amendment to accept the 300 Workforce 28 Housing units 29 8. Table of Summary of County Actions on 300 Workforce early evacuation units 30 0 0 i i 0 co W CD CD CD BOCC Staff Report Page 34 of 34 File 4 2020-068 Packet Pg. 3907 c FOR IMMEDIATE RELEASE CONTACT: GOVERNOR'S PRESS OFFICE May 2, 2018 (850)717-9282 mediaCc�eog.m�florida.com .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 c 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. c CD Governor Scott said, "Hurricane Irma left a devastating impact on our state, especially in the Florida W Keys and since the storm we have been working hard to rebuild even stronger than before. For y business owners across the Keys, the availability of affordable workforce housing has been a challenge that was compounded by Hurricane Irma.The Keys Workforce Housing Initiative will provide 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." i DEO is charged with reviewing local development decisions in the Florida Keys due to its legislative 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 i new construction that participates to commit to evacuating renters in the 48-hour window of evacuation. The initiative will allow up to 1,300 new building permits for workforce housing throughout the Florida m 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. 3908 S.2.c 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." c 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) both in Tallahassee and during the Governor's many visits to the Keys as he's lead us through our recovery efforts. The plan Governor Scott has directed DEO to bring before Cabinet is a creative solution to the most pressing recovery challenge still facing the Florida Keys and I encourage all Cabinet members to support this proposal." Wes Maul, Director of the Florida Division of Emergency Management, said, "Our agency's primary goal is the safety of Florida residents during disasters. The Keys Workforce Housing Initiative ensures the safety of tourists and residents of the Keys during major storms, while allowing critical economic development activities to continue. We appreciate DEO's partnership in this endeavor." 0 c 0 r9 CL i i 0 U 0 LU Packet Pg. 3909 Goal X—Workforce-Affordable Housing Initiative. To support Monroe County's workforce by alleviating constraints on affordable housing the County shall o participate in the Workforce-Affordable Housing Initiative, as approved during the June 13, 2018 meeting of the Administration Commission. The Workforce-Affordable Housing Initiative will require new construction that participates to commit to evacuating renters in the 48-hour window of evacuation. N 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 implementing the policies of this objective. U) Policy X.1.1—Distribution of Workforce-Affordable Housing Allocations. Workforce- o affordable housing allocations shall be distributed in accordance with (insert policy describing BPAS ranking procedures or ranking procedures specific to POA). 0 Policy X.1.2 - Specific Standards and Requirements for Workforce-Affordable Housing. CD Workforce-affordable housing units built under this program shall: a. be multifamily structures; W b. be rental units, c. require, at a minimum, adherence to the latest edition of the Florida Building Code as published by the Florida Building Commission, LU d. not be placed in the V-Zone or within the Coastal Barrier Resource Systems; ca e. require on-site property management, f. comply with applicable locational criteria and densities for multifamily affordable housing units; g. incorporate sustainable and resilient design principles into the overall site 15 UI 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 i 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, i iv. onsite property managers are formally trained in evacuation U_ procedures. i Policy X.1.3—Evacuation exemptions. Persons living in workforce-affordable housing LU who are exempt from evacuation requirements of Policy X.1.2.i.1 include all first cv responders, correction officers, health care professionals, or other first-response workers required to remain during an emergency, provided the person claiming exemption under LU this policy has faithfully certified their status with property management. Packet Pg. 3910 Policy'X.1.4—ADA Compliance. All workforce-affordable housing developments must 0. demonstrate compliance with all applicable federal standards for accessibility for persons c with disabilities. Policy X.1.4-Evaluation and Report. Monroe County shall Local governments participating in the program shall provide to the state land planning agency an Annual Report by July (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. c 0 2 0 4- 0 r9 0 U 0 i i i i cv Packet Pg. 3911 x11h )_1:: 33 S.2.e MONROE COUNTY THE FLORIDA KEYS AREA OF CRITICAL STATE CONCERN PRIVATE PROPERTY RIGHTS PROTECTION CHALLENGES c The Florida Keys are designated as an Area of Critical State Concern (ACSC) by the State Legislature,pursuant to 'a F.S. 380.05. This designation gives the State oversight authority over development in the Florida Keys and limits the g g g Y p Y U number of residential housing permits that Monroe County and its municipalities may issue each year. The State imposes these growth restrictions in order to provide for the safety of residents in the event of a hurricane evacuation and to protect the significant natural resources. c As a direct result of State's legislative and administrative growth restriction mandates,the County and municipalities have adopted local ordinances such as Rate of Growth Ordinance (ROGO) to fairly and competitively allocate the limited number of permits. The most recent hurricane modeling completed in 2012 by the Department of Economic Opportunity(DEO),pursuant to Rule 28-20.140, F.A.C., found that no more than 10 more years' worth of building permits (a maximum of 3,550 W permits) shall be issued for the Florida Keys without exceeding the statutory maximum allowed 24-hour evacuation S 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. 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. 0 The State of Florida and the local governments of the Florida Keys may face significant liability because the CD CD number of undeveloped, privately-owned parcels in the Florida Keys ACSC far exceeds the remaining permit C allocations, leaving property owners without rights to build on their properties, as demonstrated in Table 1. CD N CD cv Table 1:2018 Inventory of Privately-Owned,Vacant Parcels in Florida Keys and Approximate Land Value 2018 2018 2018 AREA NUMBER OF AVERAGE PARCEL APPROXIMATE VACANT PARCELS VALUE LAND VALUE* Key West ACSC 133 $397,235 $ 52,832,202 Unincorporated MC 7,033 $85,858 $603,840,749 _ Marathon 1,349 $100,481 $135,548,863 Layton 24 $123,928 $ 2,974,267 ®_ Key Colony Beach 81 $347,988 $ 28,187,020 Islamorada 1,070 $158,061 $169,125,630 y_ TOTAL PARCELS 9,690 $102,426 $992,508,731 CJ TOTAL REMAINING ALLOCATIONS 1,421 (n 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: m 1) SUPPORT KB 587/SB 748 `TAKINGS CLAIMS IN AREAS OF CRITICAL STATE CONCERN' and 2) SUPPORT STATE FUNDING FOR LAND ACQUISITION IN FLORIDA KEYS ($5M a year from Florida Forever, as authorized in the Florida Keys Stewardship Act) Packet Pg. 3912 S.2.e TAKINGS:CASES,JOINT DEFENSE AND LIABILITY and the need for THE FLORIDA KEYS PROPERTY RIGHTS PROTECTION ACT The State-imposed growth limits have already prompted a number of inverse condemnation and other property rights 0. related suits when those property owners have been unable to obtain permits to build on undeveloped lots. o Since 2005, Monroe County and the State of Florida have been jointly defending multiple takings cases. The State and the City of Marathon operated under a similar partnership in the two cases where that City was named as a defendant along with the State. This partnership provides for mutual litigation support and cooperation in exchange for an n 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 o public resource litigating against each other over the issue of apportionment, which would cause both unnecessary expense to the taxpayer and delay the property owner's receipt of full compensation. Such litigation between the State and County would severely undermine the cooperative approach taken to date which has resulted in successful defenses W 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 CD the property owners were seeking. In both cases, the Trial Court imposed the liability jointly and severally against y both the State and the County, leaving both entities responsible for the full payment of the judgment. 0 With joint and several liability and given the State's lengthy appropriations process,Florida Keys' property owners who 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. CD cv The Florida Keys Property Rights Protection Act will: CD N • 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 ` °a 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. • Protect the financial interests of the the local government(and its local taxpayers)that shares joint and several liability with the State from the being sued for the entirety of the judgment, or being negatively impacted by accruing interest on such judgments due to delays in the State's appropriation process. c� • Provide for an efficient and expedient method for the State to reimburse the local government for the State's half of any money paid by that local government for property rights claims brought in federal court. • Have a funding source: the 2014 voter-approved Florida Water and Land Conservation Initiative (Amendment 1) will generate an estimated $648 million to ;$1 billion a year for 20 years to fund the Land Acquisition Trust Fund,which could be used as asource offundingto pay inverse condemnation awards against the State. 21 P e M oiiroe C` or71i ( t' :: E, c c Nr- A RY 2020 Packet Pg. 3913 S.2.e 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 O the Florida Keys Stewardship Act in 2016 authorizing S5M a year (for 10 years for a total of S50M) for land acquisition in the Florida Keys under the State's primary land buying program,the Florida Forever Program. 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: ' 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 01 NO. 2018 2018 NO. 2018 2018 NO. 2018 _ OF AVERAGE APPROX OF AVERAGE APPROX OF APPROX N 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 0 Unincorp MC 3,039 $14,348 $43,603,716 3,994 $140,270 $560,237,033 7,033 $603,840,749 Marathon 414 $10,948 $4,532,519 935 $140,124 $131,016,344 1,349 $135,548,863 O Layton 4 $98 $392 20 $148,694 $2,973,875 24 $2,974,267 Key Colony 0 $0 $0 81 $347,988 $28,187,020 81 $28,187,020 W Islamorada 77 $202,710 $15,608,696 993 $154,599 $153,516,934 1,070 $169,125,630 tV 3,534 $18,038 $63,745,323 6,156 $150,871 $928,763,408 9,690 $992,508,731 tV Allocations to be applied 1,421 After allocations 8,269 $846,961,269 CL CL 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. E Since passage of the Stewardship Act, Monroe County and the Monroe County Land Authority and have U budgeted over $19.5M for land acquisition and spent/encumbered to date $10.2M, retiring 203.76 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: • 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 m the development of the property with new housing units. The revenue derived from the sale of these deed restricted properties can help replenish the funds necessary to retire more development rights. • Less Than Fee acquisition program: Residential property owners that own an adjacent vacant property ' may sell the development right on that vacant property to the County in exchange for legally allowed accessory uses on the adjacent parcel such as a pool, open yard or garage (and they retain ownership.) There are about 700 parcels in this category. 3 � � � <_; � Monroe CoriTi ( t' i� E, c c _2020 Packet Pg. 3914 S.2.e C) County policies that help transition land into public ownership and incentivize development that eliminates privately owned vacant parcels: • Incentivize Dedication of Land — County adopted an amendment to encourage additional land dedication by providing additional points in ROGO/NROGO. • Discouragement Policy— County adopted an amendment to discourage private applications for FLUM 2 0. amendments that increase density and intensity,as required by Rule 28-20.140,F.A.C.,unless mitigated 0 by providing land(acreage or Improved Subdivision [IS] parcels) to the County. U • 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 property). • Revised NROGO to make the process simpler and encourage nonresidential redevelopment and development. Created the NROGO banks of untilized floor area to make NROGO easier to award. c • 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). 2 0 • Adopted land acquisition priorities (Policy 102.4.2) to balance growth management,habitat protection, retirement of development rights,reduction of density&intensity, future build-out of the Florida Keys, 0 climate change, sea level rise, affordable housing, etc. W cv cv r9 Contacts: • 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@monrocolintv-fl.gov 41 P e M o n roe Cor7n ( t' i� c, c c' ,c Nr- A RY 2020 R&tP!acket Pg. 3915 U STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS c CECELIA MATTINO, Petitioner, a vs. Case No. 18-625OGM CITY OF MARATHON, FLORIDA, Respondent. 2 0 NAJA GIRARD, c CD Petitioner, W vs. Case No. 19-1526GM 0. CITY OF KEY WEST, FLORIDA, Respondent. CATHERINE BOSWORTH, 0 Petitioner, vs. Case No. 19-1839GM CD ISLAMORADA, VILLAGE OF ISLANDS, FLORIDA, 0 Respondent. 0 RECOMMENDED ORDER A duly-noticed final hearing was held in this matter in Marathon, Florida, on December 9 through 13, 2019, before Suzanne Van Wyk, an Administrative Law Judge assigned by the Division of Administrative Hearings. Packet Pg. 3916 S2.f' APPEARANCES For Petitioners: Richard J. Grosso, Esquire Richard Grosso, P.A. 6511 Nova Drive, Mail Box 300 Davie, Florida 33317 Sarah Hayter, Esquire Shai Ozery, Esquire Robert Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, FL 33060 For Respondents City of Marathon; and Islamorada, Village of Islands, Florida 0 Nicole Pappas, Esquire Barton Smith, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 c For Respondent, City of Key West: George Wallace, Esquire City of Key West, City Attorney's Office 1300 White Street i Post Office Box 1409 Key West, Florida 33040 CD STATEMENT OF THE ISSUE 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, Village of Islands ("Islamorada") Comprehensive Plan Amendment 19-03, adopted on March 5, 2019 (the "Islamorada Plan Amendment") (collectively, 2 Packet Pg. 3917 S2.f' 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 4- violation of the Community Planning Act, chapter 163, part II, Florida Statutes ("the Act"). Ms. Mattino's petition was assigned to the undersigned as Case No. 18-6250. On March 1, 2019, Petitioner, Naja Girard, filed a Petition with the c 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 Petition was assigned to Administrative Law Judge Francine Ffolkes as Case 0 No. 19-1839. That case was transferred to the undersigned on April 22, 2019. Petitioners filed an Amended Joint Motion to Consolidate ("the Motion") the three cases, to which Respondents, Marathon and Islamorada, filed responses in opposition. Following a telephonic hearing on the Motion, the undersigned entered an Order of Consolidation on May 10, 2019. Except as otherwise noted, all references to the Florida Statutes are to the 2018 version, which was in effect when the Plan Amendments were adopted. 3 Packet Pg. 3918 S2.f' 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 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 0 4- le of Emergency Management; and Richard F. Ogburn, accepted as an expert in comprehensive planning. Petitioners introduced the following Exhibits which were admitted in evidence: 2, 5, 6, 8, 10, 11, 34, 39, 47, 48, 54, 55, 60, 70, 71, 73 through 77, 83, 86 through 91, 94, 97, 100 through 102, 105, 106, 108, 117, 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 hydrogeology and karstology; William Precht, accepted as an expert in 0 marine ecology; and Joaquin Vargas, accepted as an expert in transportation planning. 0 Respondents introduced Exhibits 1 through 17, 20 through 66, 68 through 83, 85 through 131, 133, and 135 through 153, which were admitted in evidence. 4 Packet Pg. 3919 S2.f' 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, 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 2 0 4- witnesses: Kathleen McKee and Donald Maynard. While the deposition transcripts were admitted, they constitute hearsay for which no exception under either section 90.803 or 90.804, Florida Statutes, applies. Section 90.803(22), which provides an exception from hearsay for former testimony given in a deposition taken in the course of the same proceeding, if the party c against whom the deposition is offered had the same motive to develop the testimony, has been declared unconstitutional. See Grabau v. Dept of Health, 816 So. 2d 701, 709 (Fla. 1st DCA 2002). Further, Petitioners were unable to c 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. 0 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 0 water pollution. The articles were written by marine scientists, biologists, microbiologists, chemists, and other experts, and published in a variety of scientific journals. An expert may rely upon facts or data of which the expert 2 The official Transcript was not filed with the Division until March 16, 2020, although the parties provided the undersigned with a copy prior to that date. 5 Packet Pg. 3920 S2.f' 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 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, 2 0 4- le Ms. Jetton is not a biologist, chemist, marine scientist, or other scientific expert who would typically rely upon the studies and publications in scientific journals for formulating an opinion on, for example, "the fate and transport of sewage in the subsurface environment and the potential for contamination of marine surface waters[.]"3 c The documents on which Ms. Jetton relied in formulating her expert planning opinions were admitted, but those documents remain c U uncorroborated hearsay. The undersigned has given the appropriate weight 2I to Ms. Jetton's testimony on these issues. CD FINDINGS OF FACT The Parties and Standin- 0 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. 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. 3921 S.2.f 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 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 2 0 4- le 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 pressure and has had several heart attacks. 5. Ms. Mattino evacuated for Hurricane Irma and testified that she encountered heavy traffic, which was made more stressful by the need to stop c approximately every two hours to attend to her daughter's medical needs. 6. Ms. Mattino claims that if the Plan Amendments increase the amount 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. 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. 7. Ms. Bosworth resides in Islamorada with her daughter, son-in-law, and 0 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. 0 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 7 Packet Pg. 3922 S2.f' 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 2 0 4- quality of life. 10. Ms. Girard is a resident of Key West. She submitted oral or written objections to the Key West Plan Amendment prior to the March 5, 2019 public hearing at which Key West adopted the Plan Amendment. 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 very last minute to evacuate regardless of when an evacuation advisory was 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 163.3167, Florida Statutes (2019). 0 Backaound 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 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. 3923 S2.f' 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 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 2 0 4- le 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 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, c 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. c s The statute contains additional specific criteria for designation, including the economic and U 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. 3924 S2.f' 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 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 4- le 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 c 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 c U having limited capacity to sustain additional impacts from development. Of 2I 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 0 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 0 Keys "is degrading the nearshore waters at or over carrying capacity." LU s The Growth Management Act was significantly amended and renamed the"Community Planning Act," by chapter 2011-142, Laws of Florida. 10 Packet Pg. 3925 S2.f' 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. 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 2 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. 0 25. The amended comprehensive plan was approved by rule of the Administration Commission—Florida Administrative Code Rule 28-20, which E also established a comprehensive work program designed to improve the Keys' water quality and protect the habitat of threatened and endangered species. CD 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). 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 Administrative Code Rule 28-20.100 provided, "The carrying capacity analysis shall be designed to determine the ability of the Florida Keys ecosystem, and the various segments thereof, to withstand impacts of additional land development activities." The rule established that the 11 Packet Pg. 3926 S2.f' 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 adverse impacts to, the Keys natural land and water systems, in addition to the impacts of nutrients on marine resources. 28. The study was undertaken beginning in 1996 and was sponsored jointly by DCA and the Army Corps of Engineers ("the Corps") and involved 38 separate state and federal agencies. The study modeled a series of future development scenarios, as well as redevelopment and restoration scenarios. 2 0 4- le 29. The Final Report9 of the Florida Keys Carrying Capacity Study 0 ("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 characteristics: Existing development has 0 displaced nearly 50 percent of all upland habitats, and remaining uplands are distributed in patches of 10 or fewer acres; almost every E native area is potential habitat for one or more c endangered species; over 50 percent of all private lands are wetland parcels, and development suitability of remaining lands is low or marginal due to open space CD 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 potable water withdrawals was exceeded in 0 1999 and 2000; improvement of hurricane 2 evacuation clearance times is dependent on structural improvements to U.S. Highway 1, which will increase government costs, nutrient loading, and indirect impacts to wildlife and 9 The document introduced in evidence is titled"Draft Final Report." According to the testimony of Rebecca Jetton, no other final report was issued by the study sponsors. 12 Packet Pg. 3927 S2.f' habitats; and residential capacity is limited to 6,000 units in order to maintain the state- mandated level of service for roadways. c • All six future scenarios would result in disproportionate increase in government expenditures with respect to increased population, which will require increased 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 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 W more related to resource management than to land development." 0 30. The study provides the following four major guidelines for future development in the Florida Keys: 1. Prevent encroachment into native habitat. A wealth of evidence shows that terrestrial habitats 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 c and stormwater master plans, ongoing research 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. 13 Packet Pg. 3928 S2.f' 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. 31. Rule 28-20.001 required the findings of the FKCCS to be implemented by "adoption of all necessary [comprehensive plan] amendments to establish a rate of growth and a set of development standards [to] ensure that any and all new development does not exceed the capacity of the county's environment and marine system to accommodate additional impacts." The study would c provide the state and the Keys local governments with an analytical tool to 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 0 provisions in their comprehensive plans to "protect the public safety and welfare in the event of a natural disaster by maintaining a hurricane E 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 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 current version of the administrative rule approving the County's comprehensive plan is rule 28-20.140, which also governs and approves ROGO. The rule provides the maximum number of permits for residential development that may be issued annually, with a split between affordable and market rate units. The current cap is 197 units per year, with a 14 Packet Pg. 3929 S2.f' 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 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 2 0 4- le approval authority of the Administration Commission, and are subject to similar work plans to implement the remedial measures required by theCD commission. The applicable administrative rules are chapter 28-19 for Islamorada and chapter 28-18 for Marathon. 35. Marathon and Islamorada have permit allocation requirements c 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 c 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 services. Those applications with the highest points are awarded available 0 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 w the allocation system for a significant number of years. F 11 Marathon's annual cap is 30 units and Islamorada's is 28 (22 market rate and 6 affordable housing). 15 Packet Pg. 3930 S2.f' 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— 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 2 0 4- le 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 c 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, c 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 the system, and land development regulations to direct new growth to areas 0 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 12 In both 2012 and 2016, the Florida Legislature authorized expenditure of Everglades restoration bond funds for Florida Keys wastewater and stormwater management projects; w and, in 2016, appropriated$5 million in Florida Forever funds for said projects for the F 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. 3931 S.2.f 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 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." 2 0 4- le 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 BPAS and ROGO, the local governments are required to direct new growth to c 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 County had an overall connection rate of 86 percent (with higher percentages 0 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 w 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. 3932 S2.f' U 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 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. 2 0 4- le 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 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 c 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 c 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 "to complete an analysis of the maximum build-out capacity for the ACSC, 0 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 0 (the "Work Group") including members of each of the six local governments and representatives from the tourism industry, chambers of commerce, and community organizations, as well as from state and federal agencies. The Work Group held a series of public workshops to consider hurricane model inputs—census data, behavioral studies, hurricane forecasting, military 18 Packet Pg. 3933 S2.f' 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, and of those, the number occupied; the number of mobile home units and evacuation participation rates; and the number of site-built units, the 2 0 4- le occupancy rate, and participation rate of residents in those units, among other important variables. The inputs and assumptions were tested by 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 c 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 c 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 mobile homes would convert to site-built homes. 0 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 predicted an evacuation clearance time of 16 hours and 30 minutes for Phase I using tourist occupancy rates for July, and 17 hours and 30 minutes using tourist occupancy rates for the Labor Day weekend. 54. Under Scenario M5, residents of site-built units are ordered to evacuate 30 hours in advance, giving those residents six hours of lead time to 19 Packet Pg. 3934 S2.f' 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 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 2 0 4- le 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. 56. On November 5, 2012, Monroe County, Marathon, Islamorada, Key c 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 c 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 CD 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 site-built units; the exclusion of 870 dwelling units on the Naval Air Station; as well as two (2) functional evacuation lanes from MM 108-126. Further the work group recommended Scenario M5 with the provision that the City of Key West would transfer annually (by July 13th) any remaining or unused (90 allocations) allocations to the other 20 Packet Pg. 3935 S2.f' 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 allocation was revised to 91. 58. The MOU also memorializes the following staged evacuation procedure: • Approximately 48 hours in advance of tropical storm winds, mandatory c 2 evacuation of non-residents, visitors, RVs, travel trailers, live-aboard 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 E government comprehensive plans, except Key West, which adopted the procedure by resolution. Affordable Housin, CD CD 60. The need for additional affordable housing in the Keys is well 0 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 estate and housing throughout the Florida Keys. The need for affordable housing was exacerbated by Hurricane Irma, which made landfall in the Florida Keys in September of 2017 and destroyed approximately 400 mobile Uj 16 There are five hurricane evacuation zones in the Keys designated by mile marker numbers along US 1. 21 Packet Pg. 3936 S2.f' 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. 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 2 0 4- le highlighted a deficit of affordable housing in the Keys. Among the Principles is the requirement to "[make] available adequate affordable housing for all sectors of the population" of the Keys. § 380.0552(7)(1), Fla. Stat. When designating the ACSC, the Legislature expressed the intent to "[p]rovide affordable housing in close proximity to places of employment" in the Keys. c § 380.0552(2)(d), Fla. Stat. The Keys Workforce Housing Initiative 65. Shortly after Hurricane Irma, Marathon began discussions with DEO c 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 of the Administration Commission. 0 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 0 Affordable Housing Initiative (the "Housing Initiative") to allow up to 1,300 new building permit allocations for workforce housing throughout the Florida Keys, with an initial allocation not to exceed 300 per local LU government. 22 Packet Pg. 3937 S2.f' 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. 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 2 0 4- Initiative "will not interfere with the 24-hour evacuation model and satisfies 0 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. c 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 c 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 in chapter 28-18. The Marathon Plan Amendment creates five new FLU 0 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 0 effect. 72. The second policy provides the following "Specific Standards and Requirements for Workforce Affordable Housing": LU Affordable-Early Evacuation residential units under this program shall: 23 Packet Pg. 3938 S2.f' a. be multifamily structures; N b. be rental units; c. require, at a minimum, adherence to the latest c 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 2 locational criteria and densities for multifamily affordable housing units; g. shall not be placed in any habitat defined as mangroves, saltmarsh & buttonwood, hardwood hammock, or fresh water wetlands (disturbed categories excepted); 0 h. incorporate sustainable and resilient design principles into the overall site design; i. ensure accessibility to employment centers and c amenities; and i j. require deed-restrictions ensuring: CD (1) the property remains workforce-affordable housing in perpetuity; (ii) tenants evacuate during the period in which c transient units are required to evacuate; (iii) rental agreements contain a separate disclosure requiring renters to acknowledge that 0 failure to adhere to the evacuation requirement could result in severe penalties, including eviction, to the resident; and (iv) on-site property managers are formally trained in evacuation procedures. 24 Packet Pg. 3939 S2.f' 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. 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 2 0 4- le 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 building permit allocations in addition to the allocations identified in chapter 28-19. In all other respects the amendment is identical to the c 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 c 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- come first-served basis and at any time" following public notice and hearing 0 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 Requirement for Workforce-Affordable Housing" in the Key West Plan Amendment: it does not contain the paragraph prohibiting placement of units in buttonwood and hardwood hammock; and it does not require that property managers be trained in evacuation procedures. Otherwise, the Key West Plan 25 Packet Pg. 3940 S2.f' 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 79. Petitioners posit that the Plan Amendments violate the Principles and 2 0 4- the MOU17, and render the local government comprehensive plans internally 0 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. c 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 c 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. 81. It is undisputed that the new residential units to be allocated under 0 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— 0 residents of mobile homes, "permanent RVs," live-aboard vessels, and military personnel—to evacuate in advance of the start of the 24-hour clock. 17 As explained in the Conclusions of Law, Petitioners' contention that the Plan Amendments are inconsistent with the MOU is rejected. Inconsistency with the MOU is not a statutory compliance issue. E 26 Packet Pg. 3941 S.2.f 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 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 2 0 4- le 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 2010 census and created the demographic data base for use with the TIME c model. Mr. Ogburn subsequently completed "validation runs" of the TIME model results generated by DEO staff during the Work Group process.18 84. In 2013, while Mr. Ogburn was working on the update to the statewide c 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. 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 0 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- 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. 3942 S2.f' 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 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 2 0 4- le conclusion of the Work Group that the Keys could be safely evacuated in under 24 hours, based on the 2012 TIME model runs. For example, Mr. Ogburn questioned the vacancy rates utilized by the Work Group, which he described as "most likely" too high. Mr. Ogburn cast doubt on the 100% participation rate assumption, and the assumed 12-hour response c 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 c U doubt on the ability of meteorologists to predict storms with accuracy 48 2I 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 previously been determined to be "in compliance." The question of whether 0 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 0 89. The Housing Initiative is grounded on the availability of evacuation time in Phase I of the agreed evacuation procedure, which is adopted in each of the local government comprehensive plans. Mr. Ogburn agreed on cross- 19 Moreover, the evidence served to undercut Petitioners' argument that the best available data and analysis supports the 24-hour evacuation clearance time cap. 28 Packet Pg. 3943 S2.f' 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. 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 0 would cause the clearance times in the original 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 0 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 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. 3944 S2.f' 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. 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 2 0 4- le TIME model. Additionally, Mr. Vargas utilized 2000 census data, rather than the more recent 2010 data, which Mr. Vargas admitted "w[ould] provide more accurate information," and included inaccurate data, such as non-existent lane segments which inflated capacity on some roadway segments. While Mr. Vargas expressed the opinion that the Miller Model is superior because it c was designed expressly for the Keys, the fact remains that the existing "in compliance" comprehensive plans are based on use of the TIME model to determine maximum buildout in the Keys. c 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 0 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 97. The preponderance of the evidence does not support a finding that the inclusion of the 1,300 units in Phase I will violate the requirement to evacuate Keys permanent residents in 24 hours or less. 98. On the theory that the addition of up to 1,300 residential units in the Keys will cause the hurricane evacuation clearance time to exceed 24 hours, 30 Packet Pg. 3945 S2.f' 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." 0 • 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 c U hurricane evacuations or increase evacuation times. 2 i • Intergovernmental Coordination Element ("ICE") Objective 5-1.1 CD requiring Marathon to maintain coordination mechanisms with the 0 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 E development, zoning, and land-use decisions that transcend 0 jurisdictional boundaries." y • ICE Policy 5-1.1.10, requiring Marathon to establish a program to provide and review proposed plan amendments of adjacent local governments to ensure consistency. 31 Packet Pg. 3946 S2.f' • 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. 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 Islamorada to "address long-term strategies to reduce clearance time and coordinate permit allocations" by implementing specifically-listed c CD programs with FDOT, FDCA, and other local governments in the Keys. W • TE Policy 2-1.2.9, which provides for the staged/phased evacuation procedure to maintain a 24-hour hurricane evacuation clearance time. 0 • TE Policy 2-1.2.10, which requires Islamorada to "support state funding for the update of the hurricane evacuation model that c considers the impact of Miami-Dade County on evacuees[.]" 2I • TE Policy 2-1.6.3, by which Islamorada "adopts 24 hours as the CD maximum allowable hurricane evacuation clearance time standard," 0 and provides that "[t]he Village shall reduce and maintain hurricane evacuation clearance time at or below 24 hours by ... limiting the c 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 y Islamorada to "avoid population concentrations in the coastal high hazard area." 32 Packet Pg. 3947 S2.f' • 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 intergovernmental coordination within the coastal area." • ICE Objective 8-1.1, requiring Islamorada to "ensure intergovernmental coordination." 0 • ICE Policy 8-1.2.1, titled "Coordinate Development and Growth 0 Management Issues." 0 • ICE Policy 8-1.2.8, titled "Implement Intergovernmental W Coordination." Key West: • FLU Objective 1-1.16, requiring Key West to "regulate the rate of population growth commensurate with planned increases in evacuation capacity in order to maintain and improve hurricane 0 evacuation clearance times[,]" and "in concert with Monroe County, its i 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 areas subject to destruction by natural disasters[.]" • CME Objective 5-1.6, requiring Key West to "coordinate with the State, c U the South Florida Regional Planning Council, [Monroe] County, and 2 other local governments in order to regulate population growth and stage evacuations in a manner that maintains hurricane evacuation LU clearance times in accordance with the executed [MOU][.]" 33 Packet Pg. 3948 S2.f' • 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. 0 2 0 The City shall pursue resolution of development and growth management issues with impacts c 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 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 0 [MOU] dated July 14, 2012. 2 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 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 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- E 1.15; and Objective 8-1.1 and Policies 8-1.2.1 and 8-1.2.8. 0 101. Petitioners did not prove the Key West Plan Amendment is internally y 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. 3949 S2.f' 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." 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. 2 0 4- Nearshore Water Quality of the Florida Keys 104. Petitioners claim that the nearshore water quality of the Keys was determined over 25 years ago to have exceeded its capacity to assimilate additional nutrients, that it remains nutrient-impaired today, and that the additional development authorized under the Plan Amendments will further c increase nutrient pollution from additional wastewater and stormwater associated with development. 105. In 1990, Congress created the Florida Keys National Marine c 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 Quality CD Monitoring Project ("WQMP"), water quality has been monitored quarterly at approximately 150 sampling stations since 1995. 0 106. In 1997, the Governor and Cabinet approved the FKNMS Management Plan for implementation in state waters, and required annual reports from the FKNMS. 0 107. 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. LU 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. 3950 S2.f' 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, 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 2 0 4- nitrogen) at < 0.010 parts per million ("ppm"), and TP (total phosphorous) at 0 < 0.0077 ppm, among other nutrients, which are considered the values "essential to promote coral growth and overall health." Future sampling was compared to the "baseline" from the 1995-2005 timeframe (e.g., the baseline for DIN was 76.3 percent—the average percentage the samples complied with c the target of< 0.010 ppm). In 2011, FKNMS added 10 sampling stations, located within 500 meters of the shore in the Keys, referred to in the reports as the SHORE stations. c 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 short in 2008 and 2010. The 2017 annual report showed the stations meeting 0 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 0 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 LU .0051, lower than the 2017 level, and again well below the EPA target. 36 Packet Pg. 3951 S.2.f 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, 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 2 0 4- impact." 113. The 2015, 2017, and 2018 reports exclude the data from the SHORE stations for purposes of demonstrating compliance with target values because 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 c U stations when compared with the alongshore, channel and reef stations. i 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 determinants of local ecosystem health, at the SHORE stations was just 0 below .007, compared to the EPA target of.008. 115. More importantly, Petitioners focus on the SHORE station data was inconsistent with their challenge that the nearshore water quality remains 0 impaired. Petitioners' planning expert, Ms. Jetton, defined nearshore as approximately 12,000 meters from shore, not merely within 500 meters of 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. 3952 S2.f' 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 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 2 0 4- le 2018. Increased DO is beneficial for animal life. Declining turbidity means the water is becoming clearer. The 2014 report showed no significant trends in TP, but the 2018 report noted small, but significant, declining trends in TP values in most surface waters.22 117. In 1995, the EPA and the Department of Environmental Protection e ("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 e 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. 118. The Florida Keys RADs ("FKRADs") were developed in 2008, and 0 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 0 background within the HALO zone, which is 500 meters of shore, not including canals; and (2) the average of values measured at the nearshore 22 The 2018 report does not contain the same detailed comparison of SHORE station samples F with the other stations, as did the 2017 report. E 23 33 U.S.C. § 1251 et seq. 38 Packet Pg. 3953 S2.f' (500 meters to 12,100 meters from the shoreline). The FKRADs identify 23 impaired estuarine water body identifications ("WBIDs"). The WBIDs are Class III water bodies, defined by the Clean Water Act as "used for recreation, propagation, and maintenance of a healthy, well-balanced 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 2 0 4- le different water quality target values than the FKNMS. For the HALO Zone the target is an "as insignificant increase above natural background for each nutrient." "Insignificant" is defined as less than ten micrograms per liter (<10 µg/1) of TN, and < 2µg/l for TP. 120. Petitioner's planning expert, Ms. Jetton, testified that the 2018 c 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 c 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 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." 121. That testimony is unreliable. The purpose of the 2018 Update is plainly set forth in the document itself: to document actions taken by 0 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. 39 Packet Pg. 3954 S2.f' 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 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 4- le 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, Petitioners argue that the existing "improved" wastewater and stormwater treatment infrastructure in the Keys does not adequately protect marine and c coastal resources of the Keys, and that the addition of new development will exacerbate the problem. Specifically, Petitioners posit that shallow wastewater injection wells degrade nearshore water quality. c 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"), 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 0 wells, which are 3,000 feet deep and are cased to a minimum depth of 2,000 feet.24 24 Petitioners concede that deep injection wells have no quantified impact on the water quality of the nearshore waters of Key West or the Florida Keys. 40 Packet Pg. 3955 S2.f' 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 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 2 0 4- le 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. 130. Ms. Jetton testified that, based on reports she has reviewed, when you inject effluent into shallow injection wells, that water will reach the c 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 c 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. 131. The excerpt of the 2014 report introduced in evidence contains no 0 reference to a relationship between shallow injection wells and the water quality of nearshore waters. The 2017 report mentions there may be a connection. c 132. Respondents introduced the testimony of Michael C. Alfieri, who is a licensed professional geologist, certified by the National Groundwater Association as a ground water professional, and certified by the American Institute of Hydrology as a professional registered hydrogeologist. 41 Packet Pg. 3956 S2.f' 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 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 2 0 4- le 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 geochemical reactions as it interacts with, and is absorbed by, the surrounding rock, which reduces nutrient concentration. 135. Mr. Alfieri testified that based on the advanced wastewater c 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 c 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 0 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 water quality of the nearshore waters of Key West or the Florida Keys." 42 Packet Pg. 3957 S2.f' 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[.]" 0 • 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 CD maintenance and protection of ground, nearshore and offshore, water W quality[.]" • IE Objective 3-2.2: "[Marathon] shall regulate land use and 0 development to ... protect the functions of natural drainage features and groundwater from the impacts of wastewater systems." E Islamorada c • FLU Goal 1-1, which provides in pertinent part, as follows: The comprehensive Plan shall provide a growth CD management framework that ... encourages sustainability by limiting growth in order to establish and maintain acceptable levels of service for ... wastewater services ... and ... reclaim and c 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 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. 3958 S2.f' • 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." • 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 0 intensity of those activities that cause the adverse impact." 0 Key West • FLU Goal 1-1: "Minimize Threats To Health, Safety, And Welfare Which May Be Caused By Incompatible Land Uses, Environmental Degradation[.]"27 0 • CME Goal 5-1: "Coastal Management. Restrict development activities that would damage or destroy coastal resources. Protect human life E and limit public expenditures in areas subject to destruction by natural disasters[J" • CME Objective 5-1.1: "Protect Coastal Resources, Wetlands, Estuarine CD Salt Pond Environmental Quality, Living Marine Resources, And Wildlife Habitats. ... (1) Preventing potentially adverse impacts of 0 development and redevelopment on wetlands, estuaries, water resources, living marine resources, and other natural resources; (2) Maintaining or improving coastal environmental quality by c improving stormwater management[.]" LU y 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. 3959 S2.f' • 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 quality and quantity, wildlife habitat, and living marine resources by enforcing performance standards cited herein. Wastewater system c 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 CD protective policies for coral." W • 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 0 Area, unless the facility is for the protection of the public health and safety." E 0 U • CE Objective 6-1.2: "Detrimental water quality impacts, including 2I 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 ... standards." 0 138. Respondents' wastewater treatment plants are in compliance with their DEP wastewater treatment plant and injection well permits. 0 139. Furthermore, there have been no violations of the permits for 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 E 45 Packet Pg. 3960 S2.f' 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, 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 2 0 4- 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 144. Petitioners maintain the Plan Amendments are not supported by the best available data on the ecological carrying capacity of the Keys with c regard to habitat protection. 145. The FKCCS recommended four guidelines for future development in the Keys: (1) prevent encroachment into native habitat; (2) continue and c U intensify existing programs (e.g., land acquisition, wastewater treatment); 2I (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 the ACSC have completed numerous work programs designed to implement 0 the recommendations, including updating habitat mapping, maximizing grant funding for land acquisition, and acquiring environmentally-sensitive lands to remove them from potential development. 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 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. 3961 S2.f' 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." 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." 2 0 4- le 149. The Islamorada comprehensive plan mandates that new development 0 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 c 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, c 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. 150. Nevertheless, Petitioners argue that the Plan Amendments allow 0 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 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)[.]" 211 The Islamorada Plan Amendment refers to"tropical" hardwood hammock. 47 Packet Pg. 3962 S2.f' 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 impossible to permit the new affordable units on any lot designated hardwood hammock. 2 0 4- le 152. Further, the Marathon BPAS weighting system will apply to the new allocations,29 which will continue to direct development to scarified lots, and those lots with maximum disturbed areas. The Islamorada plan open space requirements will apply to disincentivize development of parcels with high 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. c 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: • 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 remarkable assets—our waters and natural environment—and our quality of life; Encourages sustainability by limiting growth in order to ... reclaim and preserve the quality of our natural 29 Only the Key West Plan Amendment exempts the allocation of the affordable-early evacuation units from the BPAS. 48 Packet Pg. 3963 S2.f' 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[.] • 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 CD capacity limitations to ensure continued resource availability and W environmental quality." • Policy 6-1.4.4: "Islamorada ... shall use the best available technical 0 criteria and information to formulate regulations and ordinances which shall ensure that future development is compatible with the E functioning and carrying capacity of existing natural systems and resources conservation." Marathon CD • Objective 1-2.1: which calls for adequate public facilities and servicesCD for future growth "to ... protect valuable natural resources...." 0 155. Petitioners did not prove the Marathon Plan Amendment is internally inconsistent with Objective 1-2.1. 156. Petitioners did not prove the Islamorada Plan Amendment is c 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. 3964 S2.f' 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 anticipated growth. b. The projected permanent population of the area. c. The character of undeveloped land. d. The availability of water supplies, public c facilities, and services. 2 e. The need for redevelopment, including renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with the character of the community. f. The compatibility of uses on lands adjacent to or closely proximate to military installations. 0 g. The compatibility of uses on lands adjacent to an airport[.] 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). 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. 3965 S2.f' 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. 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), 2 0 4- and 163.3184(5), Florida Statutes (2019). 0 162. 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). 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 c 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 determinations of compliance are fairly debatable. See § 163.3184(5)(c), Fla. 0 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, 0 the [government's] action was reasonably-based." Lee Cty. u. Sunbelt 2 Equities, II, Ltd. P'shi* 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. 3966 S2.f' 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, 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 0 weight or credibility to the City's witnesses. 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. c 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 0 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 0 No. 10-2988 (Fla. DOAH Feb. 21, 2012; Fla. DCA Apr. 10, 2012) (whether plan amendment is consistent with section 337.0261(3), Florida Statutes, is not a compliance criterion); Monkus u. City of Miami, Case No. 04-1080 (Fla. DOAH Sept. 3, 2004; Fla. DCA Oct. 26, 2004) (consistency with land development regulations is not a compliance issue); Emerald Lakes Residents' 52 Packet Pg. 3967 S2.f' 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 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 2 0 4- le Rule 9J-11 because the provisions are not compliance criteria); and Pyle u. 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). 170. If the MOU was adopted by reference in Respondents' comprehensive c plans, Petitioners' argument might have had merit. However, none of the comprehensive plans adopts the MOU by reference. The MOU is a separate stand-alone document which may be amended by agreement of the parties, c 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." 172. Petitioners did not prove, beyond fair debate, that the Plan 0 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. 0 173. Petitioners did not prove beyond fair debate that the Plan Amendments are inconsistent with section 163.3177(2). Data and Analysis 174. Section 163.3177(1)(f) requires plan amendments to be "based upon relevant and appropriate data and analysis" by the local government, and 53 Packet Pg. 3968 S2.f' 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 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 4- le 177. Petitioners did not prove beyond fair debate that the Plan Amendments are inconsistent with section 163.3177(1)(f). Principles for Guidin, Development 178. "In compliance" is defined to include consistency with the Principles, which apply to both Marathon and Islamorada.30 Petitioners alleged the Plan c 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." c U Based on the foregoing Findings of Fact, it is at least fairly debatable that the 21 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 isolation," but must be "construed as a whole." § 380.0552(7), Fla. Stat. The 0 undersigned is required to balance the Principles as applied to Petitioners' challenges. One of the other major Principles implicated by the Marathon and Islamorada Plan Amendments is to "[m]ake[] available adequate 0 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 LU 30 The Principles for Guiding Development in the Key West ACSC make no reference to hurricane evacuation clearance times. See Fla. Admin. Code R. 28-36.003. 54 Packet Pg. 3969 S2.f' 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. 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] 2 0 4- le 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. 181. Based upon the foregoing Findings of Fact, Petitioners did not prove c beyond fair debate that the Key West Plan Amendment is inconsistent with the listed Principles. Other Contentions c 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 data and analysis for adoption of plan amendments. Respondents considered 0 the availability of water supplies and other public services during plan review and adoption. Respondents also considered the need of the service sector of the economy—including retail and restaurant services, as well as public school and first-responder services—during plan review and adoption. 184. Based on the foregoing Findings of Fact, Petitioners did not prove, beyond fair debate, that the Plan Amendments are inconsistent with section 163.3177(6)(a)2. 55 Packet Pg. 3970 S2.f' 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: 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 2 resources on site. (emphasis added). 0 186. The cited statutory section is inapplicable to the Plan Amendments because they are not future land use map amendments. Conclusion 187. For the reasons stated above, Petitioners have not proven beyond fair c 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 2018-01, adopted on October 23, 2018; City of Key West Comprehensive Plan 0 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). 0 LU 56 Packet Pg. 3971 S.2.f 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 le www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2020. 0 COPIES FURNISHED: Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. Suite C U 61 Northeast 1st Street 2 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. 3972 S2.f' Barton William Smith, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) Christopher B. Deem, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) 0 Nicola J. Pappas, Esquire 2 Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) Richard J. Grosso, Esquire Richard Grosso P.A. Mail Box 300 c 6511 Nova Drive Davie, Florida 33317 (eServed) E 0 Shawn D. Smith, City Attorney City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 CD Key West, Florida 33040 (eServed) George B. Wallace, Esquire City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 E Key West, Florida 33040 0 (eServed) Roget V. Bryan, Esquire Islamorada, Village of Islands 86800 Overseas Highway Islamorada, Florida 33036 (eServed) 58 Packet Pg. 3973 S2.f' Janay Lovett, Agency Clerk Department of Economic Opportunity N Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 c (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 110 107 East Madison Street 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 Order should be filed with the agency that will issue the Final Order in this 2 case. CD c 0 59 Packet Pg. 3974 S.2.f STATE OF FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY N CECILIA MATTINO, Petitioner, VS. DOAH CASE NO.: 18-6250GM CITY OF MARATHON, FLORIDA, c Respondent, 2 0 NAJA GIRARD, Petitioner, VS. DOAH CASE NO.: 19-1526GM CITY OF KEY WEST, FLORIDA, Respondent, c i CATHERINE BOSWORTH, Petitioner, CD 0 VS. DOAH CASE NO.: 19-1839GM ISLAMORADA, VILLAGE OF ISLANDS, FLORIDA, 0 Respondent, n. ORDER REMANDING CASE TO DIVISION OF ADMINISTRATIVE HEARINGS THIS CAUSE came before the Department of Economic Opportunity (DEO) for consideration of a Recommended Order, which recommends the DEO enter a Final Order finding Packet Pg. 3975 S2.f' the comprehensive plan amendments subject to challenge in the above-styled actions in N compliance. 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 0 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 E 0 determination, (3) discussed during the five-day hearing, and (4) addressed by the parties in their o i proposed recommended orders. CD 3. The DEO does not have the authority to make findings ab initio.See Cohn v. Dep't 0 of Prof'l Regulation, 477 So.2d 1039,1047 (Fla. 3d DCA 1985). The DEO's role is not to make 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 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. 3976 S.2.f the subject of the hearing to the extent they are relevant to the recommended disposition or, N however briefly, indicate why the testimony was not pertinent.") 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 0 B)Rulings on all pending Exceptions to the Recommended Order,not ruled on above, andle 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. E 0 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 CD prescribed in Rule 28-106.217, F.A.C. DONE and ORDERED this 215t day of August, 2020 Mark Buckles,Interim General ounsel E Department of Economic Opportunity 0 LU Packet Pg. 3977 S.2.f 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 eta...__.. A cy C 0 F orida Department of Economic Opportunity 107 East Madison Street, MSC 110CD 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 U 1230 Apalachee Parkway 2i Tallahassee, Florida 32399-3060 Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. Suite C c 61 Northeast 1" Street Pompano Beach, Florida 33060 Sara M. Hayter, Esquire Robert N. Hartsell, P.A. Suite C c 61 Northeast 1 St Street a Pompano Beach, Florida 33060 Shai Ozery, Esquire Robert N. Hartsell, P.A. Suite C 61 Northeast 1" Street � Pompano Beach, Florida 33060 Packet Pg. 3978 S2.f' Barton William Smith, Esquire N Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 c Christopher B. Deem, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 Nicola J. Pappas, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33030 0 Richard J. Grosso, Esquire Richard Grosso, P.A. W Mail Box 300 6511 Nova Drive Davie, Florida 3317 0 Shawn D. Smith, City Attorney City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 0 Key West, Florida 33040 i George B. Wallace, Esquire City of Key West, City Attorney's Office 1300 White Street CD Post Office Box 1409 0 Key West, Florida 33040 Robert V. Bryan, Esquire c Islamorada, Village of Islands 86800 Overseas Highway Islamorada, Florida 33036 0 Packet Pg. 3979 S2.f' STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS c CECELIA MATTINO, Petitioner, a vs. Case No. 18-625OGM CITY OF MARATHON, FLORIDA, Respondent. 2 0 NAJA GIRARD, c CD Petitioner, W vs. Case No. 19-1526GM 0. CITY OF MARATHON, FLORIDA, Respondent. CATHERINE BOSWORTH, 0 Petitioner, vs. Case No. 19-1839GM CD CITY OF MARATHON, FLORIDA, m Respondent. c RECOMMENDED ORDER ON REMAND c 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. 3980 S2.f' APPEARANCES For Petitioners: Richard J. Grosso, Esquire Richard Grosso, P.A. 6511 Nova Drive, Mail Box 300 Davie, Florida 33317 Sarah Hayter, Esquire Shai Ozery, Esquire Robert Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, FL 33060 For Respondents City of Marathon; and Islamorada, Village of Islands, Florida 0 Nicole Pappas, Esquire Barton Smith, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 c For Respondent, City of Key West: George Wallace, Esquire City of Key West, City Attorney's Office 1300 White Street i Post Office Box 1409 Key West, Florida 33040 CD STATEMENT OF THE ISSUE 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, Village of Islands ("Islamorada") Comprehensive Plan Amendment 19-03, adopted on March 5, 2019 (the "Islamorada Plan Amendment") (collectively, 2 Packet Pg. 3981 S.2.f 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 Statutes ("the Act"). Ms. Mattino's petition was assigned to the undersigned as Case No. 18-6250. On March 1, 2019, Petitioner, Naja Girard, filed a Petition with the c 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 Petition was assigned to Administrative Law Judge Francine Ffolkes as Case 0 No. 19-1839. That case was transferred to the undersigned on April 22, 2019. Petitioners filed an Amended Joint Motion to Consolidate ("the Motion") the three cases, to which Respondents, Marathon and Islamorada, filed responses in opposition. Following a telephonic hearing on the Motion, the undersigned entered an Order of Consolidation on May 10, 2019. I Except as otherwise noted, all references to the Florida Statutes are to the 2018 version, which was in effect when the Plan Amendments were adopted. 3 Packet Pg. 3982 S2.f' 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 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 0 le of Emergency Management; and Richard F. Ogburn, accepted as an expert in comprehensive planning. Petitioners introduced the following Exhibits which were admitted in evidence: 2, 5, 6, 8, 10, 11, 34, 39, 47, 48, 54, 55, 60, 70, 71, 73 through 77, 83, 86 through 91, 94, 97, 100 through 102, 105, 106, 108, 117, 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 hydrogeology and karstology; William Precht, accepted as an expert in 0 marine ecology; and Joaquin Vargas, accepted as an expert in transportation planning. 0 Respondents introduced Exhibits 1 through 17, 20 through 66, 68 through 83, 85 through 131, 133, and 135 through 153, which were admitted in evidence. 4 Packet Pg. 3983 S2.f' 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, 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 2 0 4- witnesses: Kathleen McKee and Donald Maynard. While the deposition transcripts were admitted, they constitute hearsay for which no exception under either section 90.803 or 90.804, Florida Statutes, applies. Section 90.803(22), which provides an exception from hearsay for former testimony given in a deposition taken in the course of the same proceeding, if the party c against whom the deposition is offered had the same motive to develop the testimony, has been declared unconstitutional. See Grabau u. Dept of Health, 816 So. 2d 701, 709 (Fla. 1st DCA 2002). Further, Petitioners were unable to c 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. 0 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 0 water pollution. The articles were written by marine scientists, biologists, microbiologists, chemists, and other experts, and published in a variety of scientific journals. An expert may rely upon facts or data of which the expert 2 The official Transcript was not filed with the Division until March 16, 2020, although the parties provided the undersigned with a copy prior to that date. 5 Packet Pg. 3984 S2.f' 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 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, 2 0 le Ms. Jetton is not a biologist, chemist, marine scientist, or other scientific expert who would typically rely upon the studies and publications in scientific journals for formulating an opinion on, for example, "the fate and transport of sewage in the subsurface environment and the potential for contamination of marine surface waters[.]"3 c The documents on which Ms. Jetton relied in formulating her expert planning opinions were admitted, but those documents remain c U uncorroborated hearsay. The undersigned has given the appropriate weight 2I to Ms. Jetton's testimony on these issues. CD Remand The undersigned's Recommended Order was entered on April 24, 2020, 0 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 0 undersigned for the "limited purposes of issuing Findings of Fact and Conclusions of Law" on the issue of"whether the plan amendments establish LU 3 John H. Paul, Viral Tracer Studies Indicate Contamination of Marine Waters by Sewage Disposal Practices in Key Largo, Florida,Applied and Envtl. Microbiology, 2230-34(June E 1995). 6 Packet Pg. 3985 S2.f' meaningful and predictable standards as required by section 163.3177(1), Florida Statutes." FINDINGS OF FACT 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 2 0 equipment (including a specialized wheelchair), and requires full-time care, for which Ms. Mattino relies upon a variety of caretakers. Her daughter has to be transported in a specially-equipped vehicle to accommodate the wheelchair and other equipment. 3. In the event Ms. Mattino is required to evacuate for a hurricane, she c 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 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 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 cause additional stress and would put her and her daughter's health at risk. Ms. Mattino maintains these concerns are unique to her and her family and that emergency evacuation is more difficult and dangerous for her and her family than it is for the general public. 7 Packet Pg. 3986 S2.f' 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 0 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 hurricane. 9. Ms. Bosworth claims that if traffic congestion increases or worsens as a result of the Plan Amendments, it would affect her and her family because c 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 c 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 public hearing at which Key West adopted the Plan Amendment. 0 11. Ms. Girard testified that, due to her and husband's marine-based business and residential tenants, she and her husband would wait until the very last minute to evacuate regardless of when an evacuation advisory was 0 issued by the Monroe County Emergency Management Office. 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. 3987 S2.f' 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). 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," 2 0 19 such as wildlife refuges, aquatic preserves, and state environmentally 0 endangered lands. § 380.05(2), Fla. Stat. (2019).6 15. In 1974, the Florida Keys (Monroe County and its municipalities) were designated an ACSC due to the area's environmental sensitivity and mounting development pressures. 0 16. The designation was effectuated by the adoption in 1979 of section 380.0552, Florida Statutes, the "Florida Keys Area Protection Act." The Act establishes the legislative intent to establish a land use management system c U that, among other things, "protects the natural environment," "conserves and 2I promotes the community character," "promotes orderly and balanced growth in accordance with the capacity of available and planned public facilities and CD services," and "promotes and supports a diverse and sound economic base" in the Keys. § 380.0552(2), Fla. Stat. (2019). 0 5 The Environmental Land and Water Management Act was enacted prior to the 1985 E 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 U 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 w development due to its geographical location or natural aesthetics; and the anticipated effect F; of development on the environmental or natural resources of regional or statewide importance. § 380.05(2), Fla. Stat. (2019). E 9 Packet Pg. 3988 S2.f' 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 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 2 0 4- individuals. 0 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 c 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 c 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 u. Monroe Cty., 1995 Fla. ENV LEXIS 129 (Fla. ACC 1995). 0 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 0 environment due to lack of central sewer facilities, the loss of habitat for 7 The 2011 Legislature transferred the DCA Division of Community Planning, via Type II transfer, to the Department of Economic Opportunity. See eh. 2011-142, § 3, Laws of Fla. F; s The Growth Management Act was significantly amended and renamed the"Community Planning Act,"by chapter 2011-142, Laws of Florida. 10 Packet Pg. 3989 S2.f' 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. 2 0 4- le 23. Among the remedial actions was the requirement that Monroe County 0 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 E permits and vested units in ... the Keys. c 24. Monroe County amended its plan in 1996 to implement the PAS and other remedial actions, and adopted a "carrying capacity approach" to CD planning in the ACSC. 25. The amended comprehensive plan was approved by rule of the Administration Commission—Florida Administrative Code Rule 28-20, which also established a comprehensive work program designed to improve the Keys' water quality and protect the habitat of threatened and endangered 0 species. 26. The rule was subject to another administrative challenge, and the Division issued a final order upholding the rule in 1997. See Abbott V. Admin. Comm'n, Case No. 96-2027RP (Fla. DOAH May 21, 1997). LU 11 Packet Pg. 3990 S2.f' 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 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 2 0 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. 28. The study was undertaken beginning in 1996 and was sponsored jointly by DCA and the Army Corps of Engineers ("the Corps") and involved c 38 separate state and federal agencies. The study modeled a series of future development scenarios, as well as redevelopment and restoration scenarios. 29. The Final Report9 of the Florida Keys Carrying Capacity Study c U ("FKCCS") was issued in September 2002. The major findings include the 2I following: • Development suitability in the Florida Keys is CD 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 development suitability of remaining lands is low or marginal due to open space requirements, lack of infrastructure, and other factors. 9 The document introduced in evidence is titled"Draft Final Report."According to the testimony of Rebecca Jetton, no other final report was issued by the study sponsors. 12 Packet Pg. 3991 S.2.f • 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 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. 2 0 4- • All six future scenarios would result in c 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 quantitative, predictive relationships between land use or development and the marine environment." The study documented human impacts to the marine ecosystem and species. 0 The study underscores the benefits of 2I 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 exacerbate an already untenable condition. 2. Continue and intensify existing programs. Many initiatives to improve environmental conditions and quality of life exist in the Florida Keys. They include land acquisition programs, the wastewater and stormwater master plans, ongoing research 13 Packet Pg. 3992 S2.f' 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 2 values of remaining terrestrial ecosystems. 0 31. Rule 28-20.001 required the findings of the FKCCS to be implemented by "adoption of all necessary [comprehensive plan] amendments to establish a rate of growth and a set of development standards [to] ensure that any and all new development does not exceed the capacity of the county's environment c and marine system to accommodate additional impacts." The study would provide the state and the Keys local governments with an analytical tool to support future comprehensive plan amendments and revisions of land c 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 0 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 enforced by the state through review of local government plan amendments. See § 380.0552(9)(a)2., Fla. Stat. ROGO and BPAS 33. Principle among the Monroe County amendments to implement the remedial actions ordered by the Administration Commission was the PAS, 14 Packet Pg. 3993 S2.f' 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 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 2 0 le rolled over and used for affordable housing units or "administrative relief."10 0 34. Islamorada and Marathon were not yet incorporated when the comprehensive plan litigation began and subsequent remedial measures were issued. Since their incorporation, each of the cities has been brought under the umbrella of the ACSC designation. The cities' respective comprehensive c 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 c 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 0 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. 3994 S2.f' 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 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 2 0 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 high quality habitats. Monroe County was required to adopt conservation planning mapping into its comprehensive plan. c 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 treatment "system" consisted of a hodgepodge of some 23,000 septic tanks, 0 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 0 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; w and,in 2016, appropriated$5 million in Florida Forever funds for said projects for the F 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. 3995 S2.f' 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 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 4- le 42. The local governments and the Department of Economic Opportunity 0 ("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." 43. Achievement of work program objectives is directly tied to the BPAS c and ROGOif the Administration Commission finds that work program objectives have not been achieved, it can reduce the unit cap for residential development by 20 percent for the following year.14 Additionally, through the c 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. 44. In the 2017 ACSC annual report, the most recent report for which the 0 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 w 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. 3996 S2.f' 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). 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 2 0 4- le development regulation oversight as the Florida Keys ACSC, and the Key West comprehensive plan and land development regulations are approved by the state through Florida Administrative Code Chapters 28-37 and 9B-30. 47. Key West is subject to separate principles for guiding development than the Florida Keys ACSC, which are found in rule 28-36.003. Key West is c 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 c 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 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 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, 0 consistent with the requirement to maintain a 24-hour evacuation clearance time and the [FKCCS] constraints." 49. DEO appointed a Hurricane Evacuation Clearance Time Work Group (the "Work Group") including members of each of the six local governments and representatives from the tourism industry, chambers of commerce, and 18 Packet Pg. 3997 S2.f' 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 2 0 agreed on 10 modeling assumptions, including the number of tourist units, and of those, the number occupied; the number of mobile home units and evacuation participation rates; and the number of site-built units, the occupancy rate, and participation rate of residents in those units, among other important variables. The inputs and assumptions were tested by c modeling over 100 evacuation scenarios. 51. The Work Group presented its findings on June 8, 2012, and selected evacuation scenario M5, which provided for continuation of then-existing c 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. 52. Notably, scenario M5 assumed that military, mobile home residents, 0 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 53. In the two-phase evacuation plan, tourists are ordered to evacuate 48 hours in advance of predicted tropical storm force winds, and residents of mobile homes are ordered to evacuate 36 hours in advance. The model predicted an evacuation clearance time of 16 hours and 30 minutes for 19 Packet Pg. 3998 S2.f' 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 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 4- 380.0552. 0 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 the six local governments, as well as any recommended changes to the local c government comprehensive plans. DEO completed that task, and determined that a maximum of 3,550 additional units could be distributed over the next ten years, beginning in July 2013. c 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 utilized in model runs. The following "whereas" clause succinctly provides the 0 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 site-built units; the exclusion of 870 dwelling units 20 Packet Pg. 3999 S2.f' 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 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 0) 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. 0 • Approximately 36 hours in advance, mandatory evacuation of mobile- home residents, special needs residents, and hospital and nursing E home patients. • Approximately 30 hours in advance, mandatory phased evacuation of permanent residents by evacuation zone.[16] CD 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 documented, and the parties stipulated, generally, to the need. c LU 16 There are five hurricane evacuation zones in the Keys designated by mile marker numbers along US 1. 21 Packet Pg.4000 S2.f' 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 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 2 0 le 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. 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 c 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. The Keys Workforce Housing Initiative 0 65. Shortly after Hurricane Irma, Marathon began discussions with DEO about the possibility of obtaining additional building permit allocations for workforce-affordable housing. 0 66. In November 2017, Marathon passed Resolution 2017-99 requesting the allocation of 300 affordable housing allocations from DEO with approval of the Administration Commission. 67. DEO determined there were not enough building permits available under the current regulatory structure to address the need for affordable 22 Packet Pg.4001 S.2.f 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 4- le 69. The Administration Commission approved the Housing Initiative at 0 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 the statutory mandate to provide affordable housing." 70. Following approval by the Administration Commission, DEO worked c with Marathon and other local governments to amend their comprehensive �I plans to implement the Housing Initiative. The Plan Amendments CD 71. The Marathon Plan Amendment creates a new Future Land Use ("FLU') goal stating the intent to participate in the Housing Initiative 0 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 affordable building permit allocations in addition to the allocations identified in chapter 28-18. The Marathon Plan Amendment creates five new FLU policies. The first allows for distribution of the allocations "at any time" provided applicable Marathon public notice and hearing procedures are 23 Packet Pg.4002 S2.f' followed and the distribution is based on the BPAS ranking procedures in effect. 72. The second policy provides the following "Specific Standards and Requirements for Workforce Affordable Housing": Affordable-Early Evacuation residential units under this program shall: a. be multifamily structures; 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 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; E 0 g. shall not be placed in any habitat defined as mangroves, saltmarsh & buttonwood, hardwood hammock, or fresh water wetlands (disturbed categories excepted); CD h. incorporate sustainable and resilient design principles into the overall site design; 0 i. ensure accessibility to employment centers and amenities; and j. require deed-restrictions ensuring: 0 (i) the property remains workforce-affordable housing in perpetuity; (ii) tenants evacuate during the period in which transient units are required to evacuate; 24 Packet Pg.4003 S2.f' (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, 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 4- le 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, c 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. c 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. 77. The Key West Plan Amendment approves the receipt of 300 workforce- 0 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 0 municipalities or Monroe County." Rather than authorizing distribution of the allocation "at any time," Key West authorizes distribution "on a first- come first-served basis and at any time" following public notice and hearing procedures. Allocation of the Key West permits is not required to follow BPAS ranking unless the number of applications received exceeds the authorized 25 Packet Pg.4004 S2.f' 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 2 0 4- 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 79. Petitioners posit that the Plan Amendments violate the Principles and c the MOU17, and render the local government comprehensive plans internally inconsistent, by exceeding the requirement to evacuate the Keys permanent population in no more than 24 hours. Petitioners also argue the plan c U amendments are not supported by adequate data, and a professionally- 2I 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- established maximum buildout of 3,550 units through the year 2023. That 0 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 0 evacuation of permanent population within 24 hours. 17 As explained in the Conclusions of Law, Petitioners' contention that the Plan Amendments are inconsistent with the MOU is rejected. Inconsistency with the MOU is not a statutory compliance issue. E 26 Packet Pg.4005 S2.f' 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 personnelto 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. 2 0 le 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 c was the first local government in the state to update its hurricane evacuation modeling based on the 2010 census data. It was to be a pilot for updating the statewide regional evacuation plan utilizing the new census data. c U 83. Specifically, Mr. Ogburn, who was at the time employed by the South 21 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 model results generated by DEO staff during the Work Group process.18 0 84. In 2013, while Mr. Ogburn was working on the update to the statewide regional evacuation model, Mr. Ogburn discovered some blank cells within the census block group data sets in the original spreadsheet he had created 0 for DEO. The missing information was the number of vehicles identified within those specific census block groups. With respect to Monroe County, eight of the 76 block groups were missing vehicle data. is The validation process involved input of the data parameters into the model and repeating the same model run scenarios to ensure that the results from the initial runs were replicated. 27 Packet Pg.4006 S2.f' 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 4- in the Keys already exceeds the 24-hour evacuation standard mandate by 0 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 c 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 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 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 hours in advance of landfall. 88. The Keys local government comprehensive plans, as adopted with use 0 of the TIME model, and all underlying assumptions and inputs, have previously been determined to be "in compliance." The question of whether those assumptions and model inputs are supported by data and analysis is Uj 28 Packet Pg.4007 S2.f' 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 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. 2 0 4- le 90. Notably, when Mr. Ogburn was asked directly whether the additional 0 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 0 run the model to determine whether or not that would cause the clearance times in the original phase to increase significantly.[201 03 0 91. The 2012 run of the TIME model demonstrated a clearance time in i Phase I of 16 hours and 30 minutes, or 17 hours and 30 minutes, depending on the transient occupancy rate utilized. CD 92. Respondents introduced the testimony of Joaquin Vargas, a traffic 4- 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 data and analysis supports the 24-hour evacuation clearance time cap. E 20 T2:79;1-6. 29 Packet Pg.4008 S2.f' 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 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 2 0 le 900 units, the model yielded a clearance time of 21 hours and 42 minutes. 95. This evidence had little relevance because the models are not comparable, and because Mr. Vargas utilized inputs and assumptions that differed greatly from the TIME model runs underlying the carrying capacity analysis utilized by the Work Group. The Miller Model assumes the c evacuation of all permanent residents (including mobile home residents) simultaneously, so it is useless as a comparator to the Phase II run of the TIME model. Additionally, Mr. Vargas utilized 2000 census data, rather than c 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 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 determine maximum buildout in the Keys. 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 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.4009 S2.f' 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 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: 2 0 4- Marathon: 0 • 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 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 hurricane." CD • Conservation and Coastal Element Policy 4-1.21.2, requiring Marathon to coordinate with Monroe County in updating policy formulations 0 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. c • 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.4010 S2.f' • 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 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 4- 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 0 and maintain acceptable levels of service for hurricane evacuation[.]" • Transportation Element ("TE") Policy 2-1.2.8, which requires c U Islamorada to "address long-term strategies to reduce clearance time 2I and coordinate permit allocations" by implementing specifically-listed programs with FDOT, FDCA, and other local governments in the Keys. CD 0 • 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 E funding for the update of the hurricane evacuation model that 0 considers the impact of Miami-Dade County on evacuees[.]" y • TE Policy 2-1.6.3, by which Islamorada "adopts 24 hours as the maximum allowable hurricane evacuation clearance time standard," and provides that "[t]he Village shall reduce and maintain hurricane 32 Packet Pg.4011 S.2.f 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]." • 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 c W County in emergency preparedness." 4- 0 • CME Objective 5-1.15, requiring Islamorada to "ensure intergovernmental coordination within the coastal area." W • ICE Objective 8-1.1, requiring Islamorada to "ensure intergovernmental coordination." • ICE Policy 8-1.2.1, titled "Coordinate Development and Growth Management Issues." 0 i • ICE Policy 8-1.2.8, titled "Implement Intergovernmental Coordination." CD Key West: 4- • FLU Objective 1-1.16, requiring Key West to "regulate the rate of population growth commensurate with planned increases in evacuation capacity in order to maintain and improve hurricane evacuation clearance times[,]" and "in concert with Monroe County, its c municipalities, and the State of Florida, [Key West] shall manage the 2 rate of growth in order to maintain an evacuation clearance time of 24 hours for permanent residents." 33 Packet Pg.4012 S2.f' • 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][.]" c • ICE Policy 8-1.1.3, which reads, in pertinent part, as follows: 4- 0 Considering the growth and development limitations in Monroe County as a whole resulting W 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 implement the hurricane and transportation conclusions and policies relative to residential units' allocation which are adopted by Monroe c County and all municipalities as described in the [MOU] dated July 14, 2012. 99. Petitioners did not prove that the Marathon Plan Amendment is internally inconsistent with Objectives 1-2.1, 1-2.2, 1-3.5, and 5-1.1; and Policies 4-1.21.2, 5-1.1.(2), 5-1.1.10, and 5-1.2.1.* 34 Packet Pg.4013 S2.f' 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- 2 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 2 0 4- le 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 clearance time for permanent residents of no more than 24 hours." Environmental Concerns 103. Petitioners next contend the Plan Amendments are not supported by c data and analysis demonstrating that the environmental carrying capacity of the Keys can support development of an additional 1,300 residential units. Petitioners' concerns fall into two categories which were the focus of the c 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 additional nutrients, that it remains nutrient-impaired today, and that the 0 additional development authorized under the Plan Amendments will further increase nutrient pollution from additional wastewater and stormwater associated with development. 0 105. In 1990, Congress created the Florida Keys National Marine 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.4014 S2.f' 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 2 0 is diluted by low nutrient ocean waters," and that "[a]nalysis of monitoring 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, particularly with regard to any potential effect attributable to ... water c 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." c 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 "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 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, located within 500 meters of the shore in the Keys, referred to in the reports as the SHORE stations. 109. In 2015, FKNMS reported that an average of all stations (excluding SHORE stations) met or exceeded the target value for DIN in 2008 through 2011, but fell short of the target in 2012 through 2015. The stations reported 36 Packet Pg.4015 S2.f' 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 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. 2 0 le 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, but met or exceeded the target value in subsequent years. 111. Petitioners emphasize that the EPA's Strategic Targets for nutrients c 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 c 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 they "introduce a bias to the dataset which results in a reporting 0 problem[.]"21 114. The 2017 report does include an analysis of the geographic differences between testing stations. The report indicates a significant 0 difference between the median levels of nutrients sampled in SHORE stations when compared with the "alongshore," "channel," and "reef' stations. LU 21 Petitioners sought to introduce raw sample data from SHORE stations and an analysis of said data by Kathleen McKee. That evidence was admitted as hearsay only, and was not corroborated by any non-hearsay evidence. E 37 Packet Pg.4016 S2.f' 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 2 0 4- le 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 percent of the alongshore stations sampled TP below the target .008. With respect to DIN, the median of alongshore station samples is below the target e of.01; and 75 percent fall below .015. 116. In 2018, FKNMS reported a trend of increased DO (dissolved oxygen) in both surface and bottom waters throughout the Keys, and declining e 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 values in most surface waters.22 0 117. In 1995, the EPA and the Department of Environmental Protection ("DEP") listed the Keys waters as "impaired," pursuant to the Clean Water Act.23 DEP is required to establish Total Maximum Daily Loads ("TMDLs") 0 for impaired water bodies, which define the maximum pollutant loading that 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.4017 S2.f' 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. 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 2 0 le (500 meters to 12,100 meters from the shoreline). The FKRADs identify 0 23 impaired estuarine water body identifications ("WBIDs"). The WBIDs are Class III water bodies, defined by the Clean Water Act as "used for recreation, propagation, and maintenance of a healthy, well-balanced population of fish and wildlife." The FKRAD identifies specific restoration c 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. c 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 (<10 µg/1) of TN, and < 2µg/l for TP. 0 120. Petitioner's planning expert, Ms. Jetton, testified that the 2018 Update to the FKRAD "tells me that the surface water still isn't able to assimilate all the nutrients that are going into it because ... we're not 0 meeting the strategic targets[.]" Ms. Jetton concluded, based on the 2018 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.4018 S2.f' 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 2 0 le TN and TP in the HALO zone waters, nor any analysis of whether the target—insignificant increases above natural background—has been achieved. The 2018 Update provides that "water quality data will be compared to the FKRAD water quality targets ... to evaluate achievement of targets," and that "[m]onitoring for success will include, among other data c sets, "decrease in nearshore nutrient concentrations in comparison to water quality targets and OFW background concentrations." Injection Wells and Nearshore Water Quality c 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 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. 0 124. Marathon injects treated wastewater effluent into shallow injection wells, which are drilled to a depth of at least 90 feet and cased to a minimum depth of 60 feet. 125. Marathon's five injection wells are permitted to, and currently operate at, a permitted capacity of.200 million gallons per day ("MGD"), 40 Packet Pg.4019 S2.f' .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 2 0 4- 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 c and operates at a permitted capacity of 2 MGD. The injection wells at the Key Largo Wastewater Treatment facility are designed and permitted to exceed full build out. c 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 based her opinions. She further referred to findings in the Administration 0 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 may contribute to nutrients in nearshore waters. 131. The excerpt of the 2014 report introduced in evidence contains no reference to a relationship between shallow injection wells and the water 24 Petitioners concede that deep injection wells have no quantified impact on the water quality of the nearshore waters of Key West or the Florida Keys. 41 Packet Pg.4020 S2.f' 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 2 0 4- le 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 inj ectate into surface water adjacent to Marathon's shallow injection wells.26 134. Based on his knowledge and experience, Mr. Alfieri testified that c 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 c 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 the injection wells and their current level of usage, as well as the 0 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 Keys. 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 w makes it difficult for water to move through. 26 The parties stipulated that deep injection wells"do not have a quantified impact on the water quality of the nearshore waters of Key West or the Florida Keys." 42 Packet Pg.4021 S2.f' 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 • Infrastructure Element ("IE") Goal 3-1: "[E]nsure availability of 2 0 4- le 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[.]" • 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 0 quality[.]" 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 • FLU Goal 1-1, which provides in pertinent part, as follows: The comprehensive Plan shall provide a growth c management framework that ... encourages sustainability by limiting growth in order to y 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 E induced activities do not diminish assets of our 43 Packet Pg.4022 S2.f' 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[.] • 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 CD adverse impacts of development by regulating the location, density and W 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 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[.]" c • CME Objective 5-1.1: "Protect Coastal Resources, Wetlands, Estuarine Salt Pond Environmental Quality, Living Marine Resources, And c 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.4023 S2.f' resources, living marine resources, and other natural resources; (2) Maintaining or improving coastal environmental quality by improving stormwater management[.]" • 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 c W cumulative impacts of development and redevelopment upon water 4- 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 0 protective policies for coral." • CME Policy 5-1.4.1: "Public Investments in Coastal High-Hazard Area. c U Publicly funded facilities shall not be built in the Coastal High-Hazard 2I Area, unless the facility is for the protection of the public health and safety." CD 0 • CE Objective 6-1.2: "Detrimental water quality impacts, including adverse impacts to the coral reef system shall continue to be combated by public facility improvements identified in the Public Facilities Element .... Monitoring Measure: Achievement of water quality ... 0 standards." 138. Respondents' wastewater treatment plants are in compliance with their DEP wastewater treatment plant and injection well permits. 45 Packet Pg.4024 S2.f' 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, 2 0 4- 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, Goal 6-1, and Objective 6-1.9. 143. Petitioners did not prove the Key West Plan Amendment is internally c inconsistent with Key West Comprehensive Plan Goals 1-1 and 5-1; Objective 5-1.1 and Policies 5-1.1.4, 5-1.2.2, and 5-1.4.1; and Objective 6-1.2. Ecolo,ical Impacts c 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 the Keys: (1) prevent encroachment into native habitat; (2) continue and 0 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. 0 146. Since the FKCCS was published in 2002, the local governments in the ACSC have completed numerous work programs designed to implement the recommendations, including updating habitat mapping, maximizing grant funding for land acquisition, and acquiring environmentally-sensitive lands to remove them from potential development. 46 Packet Pg.4025 S2.f' 147. Furthermore, the BPAS system integrates environmental concerns when scoring applications for the units allocated. In Marathon, Policy 1-3.5.4 affords the greatest weight to applications for development of scarified and infill lots with existing paved roads, water, and electric service. The Plan 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 4- le 148. The Key West comprehensive plan mandates that new development 0 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 preserve all undisturbed wetlands" and 90 percent of high quality tropical hardwood hammocks on the parcel being developed. The Islamorada c U comprehensive plan also discourages development of lots containing both 2I 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 hammock is .90; while for undisturbed saltmarsh and buttonwood wetlands, 0 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 0 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.4026 S2.f' 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 2 0 le multifamily, thereby utilizing multiple allocations for one application, it is impossible to permit the new affordable units on any lot designated hardwoodCD hammock. 152. Further, the Marathon BPAS weighting system will apply to the new allocations,29 which will continue to direct development to scarified lots, and c 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. �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 inconsistent with the following provisions of the Marathon and Islamorada 0 plans relating to ecological concerns: Islamorada: • GOAL 1-1: IMPLEMENT FUTURE LAND USE VISION, which reads, 0 in pertinent part, as follows: 211 The Islamorada Plan Amendment refers to"tropical" hardwood hammock 29 Only the Key West Plan Amendment exempts the allocation of the affordable-early evacuation units from the BPAS. 48 Packet Pg.4027 S2.f' [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 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[.] 0 .] 2 • Policy 2-1.9.3: Participate in the Florida Keys Carrying Capacity 0 Study. ... "[Islamorada] shall continue to support the technical CD 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 0 natural and environmental resources ... based on their carrying capacity limitations to ensure continued resource availability and E environmental quality." 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 functioning and carrying capacity of existing natural systems and 0 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.4028 S2.f' 156. Petitioners did not prove the Islamorada Plan Amendment is internally inconsistent with Goal 1-1, Policy 2-1.9.3, Goal 6-1, and Policy 6-1.4.4. Other Contentions 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: 0 a. The amount of land required to accommodate CD anticipated growth. b. The projected permanent population of the area. c. The character of undeveloped land. c d. The availability of water supplies, public facilities, and services. e. The need for redevelopment, including renewal of blighted areas and the elimination of 2 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 economic development that will strengthen and diversify the community's economy. UJ j. The need to modify land uses and development patterns with antiquated subdivisions. (emphasis added). 50 Packet Pg.4029 S2.f' 158. Many of the listed criteria are not applicable to the Plan Amendments because the Plan Amendments do not propose a specific type of development at a specific location, do not implicate antiquated subdivisions, 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 2 0 4- adoption. 160. Petitioners did not prove the Plan Amendments are not based upon applicable surveys, studies, and data as required by section 163.3177(6)(a)2. Meaningful and Predictable Standards 161. Petitioners allege the Plan Amendments violate section 163.3177(1), c 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 c 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. 0 163. 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 0 cannot be the case. 164. Both the Key West and the Islamorada comprehensive plans employ the same phrasing in other parts of the existing plan as used in the Plan Amendments. In Policy 3-1.5.2, Islamorada provides that "sites for affordable housing ... shall be approved only if such sites [are] ... [a]ccesible to 51 Packet Pg.4030 S2.f' 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. 2 0 le Yet, Mr. Garrett had no difficulty identifying Old Town as an employment 0 center in Marathon. In fact, Mr. Garrett identified all the City's employment centers as being located generally between Coco Plum and the Seven Mile Bridge. As for determining whether the housing authorized under the Plan Amendment will be "accessible" to an employment center, Petitioners c 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 c 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 term "amenities" is also not defined in the Plans. In their Proposed 0 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 0 its plain and ordinary meaning. See Greenfield v. Daniels, 51 So. 3d 421, 426 (Fla. 2010) (citing Sch. Bd. of Palm Beach Cty. v. Survivors Charter Schs., Inc., 3 So. 3d 1220, 1233 (Fla. 2009) (quoting Fla. Birth-Related Neurological Injury Comp. Assn v. Fla. Div. of Admin. Hrgs., 686 So. 2d 1349, 1354 (Fla. 1997))). It is appropriate to refer to a dictionary definition to ascertain the 52 Packet Pg.4031 S.2.f plain and ordinary meaning of legislative terms. See Survivors Charter Schs., 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 2 0 le employment centers and amenities" fails to provide meaningful and 0 predictable standards for the use and development of land under the Plan Amendments. 170. Next, Petitioners contend that the requirement to "incorporate sustainable and resilient design principles into the overall site design" of the c 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, c 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 "incorporate sustainable and resilient design principles" fails to provide meaningful and predictable standards for the use and development of land 0 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 0 enforcement of (1) use of the units for workforce-affordable housing, and (2) early evacuation of those units. 173. Petitioners allege that the Plan Amendments "do not require the units or the residents to meet any affordable housing criteria, or adopt by reference any such requirements." Ms. Jetton testified that, because the Plan 53 Packet Pg.4032 S2.f' 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: (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 0 could result in severe penalties, including eviction CD to the resident; and (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 c 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 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 and Marathon plans, both jurisdictions implement affordable housing programs established in their plans through more specific land development regulations which establish income limitations for that housing. As those plans are already in compliance, they cannot be said to lack meaningful and predictable standards. 30 The Key West Plan Amendment does not include this provision. 54 Packet Pg.4033 S2.f' 177. Mr. Garrett testified that the term workforce would be given its plain and ordinary meaning—persons employed within the County. Thus, workforce-affordable housing units are reserved for members of the workforce who meet the previously-established definitions of affordable housing used to 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 4- le evacuate early, and that the Plan Amendment language has no teeth to ensure early evacuation. She testified that the language is permissive "failure to adhere to evacuation requirements could result in severe penalties"—meaning it may not be enforced at all. According to her, because the term "severe penalties" is also undefined, the entire provision is c 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 c 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 DEO annually documenting the number of workforce-affordable housing 0 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 0 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.4034 S2.f' 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), 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 2 0 le §§ 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, and 163.3248, with the appropriate strategic regional policy plan, and with the principles for guiding development in designated areas of critical state concern and with part III of chapter 369, where applicable." § 163.3184(1)(b), Fla. Stat. 186. Respondents' determinations that the Plan Amendments are "in c 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. c 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)). 0 188. 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 [E]ven though there was expert testimony adduced in support of the City's case, that in and of itself does not mean the issue is fairly debatable. If it did, every zoning case would be fairly debatable and the City would prevail simply by submitting an expert who testified favorably to the City's position. Of course that is not the case. The trial judge still 56 Packet Pg.4035 S2.f' 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. Boca Raton u. Boca Villas Corp., 371 So. 2d 154, 159 (Fla. 4th DCA 1979). 189. The standard of proof to establish a finding of fact is preponderance of the evidence. See § 120.57(1)0), Fla. Stat. The MOU 190. Petitioners allege, as grounds for finding the Plan Amendments not c W in compliance," that the Plan Amendments are inconsistent with the MOU. 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 E are not compliance issues); Cemex Constr. Materials Fla. u. Lee Cty., Case No. 10-2988 (Fla. DOAH Feb. 21, 2012; Fla. DCA Apr. 10, 2012) (whether plan amendment is consistent with section 337.0261(3), Florida Statutes, is CD 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); Current u. Town of Jupiter, Case No. 03-0718 (Fla. DOAH Oct. 24, 2003; Fla. DCA Apr. 9, 2004) (whether plan amendment conflicts with local government resolution is not a compliance issue); Durham Park Neighborhood u. City of Miami, Case No. 06-0759 (Fla. DOAH May 24, 2006 Order Granting Leave to 57 Packet Pg.4036 S2.f' Amend but Striking Portions of Amended Pet.) (striking Petitioners' claims that plan amendment is not consistent with Florida Administrative Code Rule 9J-11 because the provisions are not compliance criteria); and Pyle u. 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 0 le stand-alone document which may be amended by agreement of the parties, outside of the statutory plan amendment process. Internal Inconsistences 192. Section 163.3177(2) mandates "the several elements of the comprehensive plan shall be consistent." c 193. Petitioners did not prove, beyond fair debate, that the Plan Amendments are inconsistent with specifically-identified provisions of Respondent's plans relating to hurricane evacuation clearance times, quality c 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). CD Data and Analysis 0 195. Section 163.3177(1)(0 requires plan amendments to be "based upon 0 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." 0 196. To be based on data "means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan amendment." § 163.3177(1)(f), Fla. Stat. 58 Packet Pg.4037 S2.f' 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 2 0 4- le amendments comply with the requirement to "maintain[] a hurricane evacuation clearance time for permanent residents of no more than 24 hours." Based on the foregoing Findings of Fact, it is at least fairly debatable that the Plan Amendments will not cause evacuation clearance time of the ACSC to exceed the 24-hour evacuation clearance time. c 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' c 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 housing, which has a documented impact on the Keys' economy. The need to 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. 0 Stat. 201. With regard to Key West, Petitioners urge the Plan Amendment is inconsistent with Florida Administrative Code Rule 28-36.003(1)(a), (h), and 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. 59 Packet Pg.4038 S2.f' (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 2 0 4- the listed Principles. Other Contentions 203. Petitioners raised additional arguments, which were likewise not proven beyond fair debate. 204. Petitioners alleged the Plan Amendments violate section c 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 c 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, beyond fair debate, that the Plan Amendments are inconsistent with section 0 163.3177(6)(a)2. 206. Petitioners contend the Plan Amendments were inconsistent with section 163.3177(6)(a)8., which requires, as follows: 0 8. Future land use map amendments shall be based upon the following analysis: a. An analysis of the availability of facilities and services. 60 Packet Pg.4039 S2.f' 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). 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 2 0 4- le 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 issue. Conclusion 209. For the reasons stated above, Petitioners have not proven beyond fair c 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 2018-01, adopted on October 23, 2018; City of Key West Comprehensive Plan 0 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). 0 61 Packet Pg.4040 S2.f' 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 le www.doah.state.fl.us Filed with the Clerk of the CD Division of Administrative Hearings this 25th day of September, 2020. COPIES FURNISHED: c Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. Suite C 61 Northeast 1st Street U Pompano Beach, Florida 33060 2 (eServed) CD Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. 0 Suite C 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) Shai Ozery, Esquire Robert N. Hartsell P.A. Suite C v, 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) 62 Packet Pg.4041 S.2.f Barton William Smith, Esquire Law Firm of Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) Christopher B. Deem, Esquire Law Firm of Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) 0 Nicola J. Pappas, Esquire 2 Law Firm of Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) Richard J. Grosso, Esquire Richard Grosso P.A. Mail Box 300 c 6511 Nova Drive Davie, Florida 33317 (eServed) E 0 Shawn D. Smith, City Attorney City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 CD Key West, Florida 33040 (eServed) George B. Wallace, Esquire City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 E Key West, Florida 33040 0 (eServed) Roget V. Bryan, Esquire Islamorada, Village of Islands 86800 Overseas Highway Islamorada, Florida 33036 (eServed) 63 Packet Pg.4042 S2.f' Janay Lovett, Agency Clerk Department of Economic Opportunity N Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 c (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 110 107 East Madison Street 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 Order should be filed with the agency that will issue the Final Order in this 2 case. CD c 0 64 Packet Pg.4043 X1: 0 SIM 144i' TUZ�ge of ista- nars OF SENT VIA EMAIL AND FED EX April 10, 2019 Mr. Ray Eubanks, Plan Processing Administrator 0 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: 20 4- 0 Pursuant to Chapter 163, Part Il, Florida Statutes, the Islamorada, Village of Islands Planning and Development Services Department, acting within the Florida Keys Area of Critical State Concern, hereby transmits three (3) CD copies of its adopted Plan Amendment Submittal Package 19-01 ACSC of the Islamorada, Village of Islands Comprehensive Plan and hereby requests that the Florida Department of Economic Opportunity review the adopted amendments.The amendments are subject to State Coordinated Review process pursuant to Section 163.3184(4), Florida Statutes. One (1) copy of each package is paper and two (2) copies are on CD-ROM in PDF format. i There is one (1) adopted ordinance in the package,summarized in the table below.The ordinance does not amend the future land use map.The adopted amendment affects Chapter 3: Housing Element of the Comprehensive Plan. 0 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: y Lo South Florida Regional Planning Council ■ South Florida Water Management District ■ Monroe County, Florida ■ Florida Department of State ■ Florida Department of Environmental Protection ■ Florida Department of Education m ■ Florida Department of Transportation 0 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.4044 S.2.g Summary of the Plan Amendment Submittal Package Content: Each plan amendment listed below includes the adopted text,copies of recommendations and support documents, including any required data and analysis. Ord Amendment Amendment SPA 1st VC 2nd VC Name Title Hearing Hearing Hearing No. Date Date Date n/a ADOPTED AN ORDINANCE OF ISLAMORADA, 12/10/18 12/13/18 4/4/19 TEXT VILLAGE OF ISLANDS, FLORIDA, AMENDMENT AMENDING CHAPTER 3 "HOUSING N ESTABLISHING ELEMENT" AND ASSOCIATED GOAL 3-2 OBJECTIVES AND POLICIES OF THE VILLAGE'S COMPREHENSIVE PLAN; ESTABLISHING GOAL 3-2 ENTITLED "WORKFORCE-AFFORDABLE HOUSING INITIATIVE" TO PROVIDE FOR AN ADDITIONAL 300 AFFORDABLE UNIT ALLOCATIONS TO BE IDENTIFIED AS THE "AFFORDABLEEARLY EVACUATION POOL"; PROVIDING FOR o SEVERABILITY; PROVIDING FOR THE REPEAL OF ALL CODE PROVISIONS AND le ORDINANCES INCONSISTENT WITH THIS ORDINANCE; PROVIDING FOR INCLUSION IN THE CODE; PROVIDING FOR THE TRANSMITTAL OF THIS ORDINANCE TO THE FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY;AND PROVIDING FOR AN EFFECTIVE DATE UPON APPROVAL OF THIS ORDINANCE BY THE FLORIDA 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. ■ The plan amendment is not within Orange, Lake or Seminole Counties and,therefore,the plan amendments y do not apply to the Wekiva River Protection Area pursuant to Chapter 369, Part Ili, Florida Statutes. ' • A copy of the complete amendment package including supporting data and analysis has been mailed to all of the required review agencies on the date of this letter. • The amendment is not proposed to be adopted under a joint planning agreement pursuant to Section m 163.3171, Florida Statutes. ■ The amendment does not update the five-year schedule of Capital Improvements. ■ There were no requests for citizen courtesy information. Page 2 of 3 Packet Pg.4045 S.2.g The following person is familiar with the proposed amendments and is responsible for ensuring that the materials transmitted are complete: 0 Ty Harris, Esq. Director of Planning Islamorada,Village of Islands 86800 Overseas Highway Islamorada, Florida 33036-3162 N Phone 305.664.6422 Fax 305.664.6464 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. Sincerely, 0 Ty Harris, Esq. Director of Planning 4- Encl. o r9 Cc: Corey Aitken, Resiliency Planner& Economic Development,SFRPC Sent Electronically Isabel Moreno,Administrative Assistant, SFRPC Sent Electronically EmilySchemper,Asst.Director,Monroe Counly Planning and Environmental Resouroes Sent Electronically Plan Reviewer, FDEP Sent Electronically Shereen Yee Fong,Transportation Planner, FDOT District 6 Sent Electronically Terese Manning, Policy and Planning Analyst,SFWMD Sent Electronically Deena Woodward, Historic Preservation Planner, FDOS Sent Electronically Barbara Powell,Areas of Critical State Concern Administrator, DEO Sent Electronically Kylene J.Casey,Growth Management& Legislative Liaison, FDOE Sent Electronically Village Council (no enclosures) Sent Electronically Seth Lawless,Villa a no enclosures o Mana er( g g 1 Sent Electronically Roget.V. Bryan,Village Attorney(no enclosures) Sent Electronically y LO LU Page 3 of 3 Packet Pg.4046 S.2.g ORDINANCE NO. 19-03 AN ORDINANCE OF ISLAMORADA, VILLAGE OF ISLANDS,FLORIDA,AMENDING CHAPTER 3 "HOUSING ELEMENT" AND ASSOCIATED OBJECTIVES AND POLICIES OF THE VILLAGE'S COMPREHENSIVE PLAN; N ESTABLISHING GOAL 3-2 ENTITLED "WORKFORCE- AFFORDABLE HOUSING INITIATIVE"TO PROVIDE FOR AN ADDITIONAL 300 AFFORDABLE UNIT ALLOCATIONS TO BE IDENTIFIED AS THE "AFFORDABLE-EARLY EVACUATION POOL"; PROVIDING FOR SEVERABILITY;PROVIDING FOR THE REPEAL OF ALL CODE PROVISIONS AND ORDINANCES INCONSISTENT WITH THIS ORDINANCE; PROVIDING FOR INCLUSION IN THE CODE; PROVIDING FOR THE TRANSMITTAL OF THIS ORDINANCE TO THE FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY; AND PROVIDING FOR AN EFFECTIVE DATE UPON APPROVAL OF THIS ORDINANCE BY THE FLORIDAle DEPARTMENT OF ECONOMIC OPPORTUNITY CD in 2001, Islamorada, Village of Islands, Florida(the"Village")adopted the U Village Comprehensive Plan Village Comprehensive Plan(the"Comprehensive Plan'j which has been determined to be compliant by the State Department of Economic Opportunity ("DEO"), formally the Department of Community Affairs("DCA'j; and WHEREAS,the Village is located within the Florida Keys Area of Critical State Concern 0 (the"FKACSC")as established pursuant to Chapter 380,Florida Statutes;and LO WHEREAS, Section 163.3184, F.S.,establishes a process for adoption of comprehensive plans and Plan Amendments;and WHEREAS, pursuant to Chapter 163, Part II, Chapter 166 and Chapter 380 Florida Statutes(F.S.),the Village proposes to amend Chapter 3"Housing Element"ofthe Comprehensive Packet Pg.4047 S.2.g Plan by adding Goal 3-2 "Workforce-Affordable Housing Initiative" and associated Objectives and Policies;and c WHEREAS, the proposed amendments further the goals, objectives and policies of the 0 Village Comprehensive Plan; and WHEREAS,pursuant to Florida Statutes and the Village Code of Ordinances(the"Code") N 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 Comprehensive Plan are consistent with the Village Comprehensive Plan, the Principles for Guiding Development.in the Florida Keys Area of Critical State Concern and are in the best CD 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 Establish Goal_ 3-2 2 "Workfo ordable Housing Initiative. The amendment to the Comprehensive Plan is to y LO amend Chapter 3 "Housing Element" to Establish Goal 3-2 "Workforce-Affordable Housing Initiative and related objectives and policies as follows: E Goal 3-2—Workforce-Affordable Housin Initiative. To su ort the Viligge of Islamorada's workforce by Aeviati constraints on affordable housin the Villa a shall participate 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.4048 S.2.g Housing Initiative will Mouire any MA cipatin new co 'on or MaMsed gauctures to commit to evacuating renters within the 48 to 24-hour window of evacuation from the Vil e. Obiective 3-2.1 - Provide Workfo ectAffordable Houdan Building Peanut Allocationsw want to Obiective 3-1.1. the Village has worked with the State Dawtmcnt of Economic OPRQ=ity to "pm jde W—tqmative solutions to i rove access to affordable housing." The Villa a the ref m ! stablish a new limited cate to be known as the "'Affordable-Early Evacuation Pool" for 300 workforce-affordable building_Rgmft. allocations to ngkoate 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 e mmudble for th en dist6butiorL and enforcment of reggjrementg associated with the POA allocations. The Villne of Islarnorada.shall ensure adherence to these MQulrcpMM&-ou.A im lementin the policies > 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 Devjeopment Re lations and in accordance with the BPAS mking_procedures established in Chapter 30 Article 4 Division 1l "Building Permit Allocation S PAS . Pole 3-2.1.2 - &gg& S ndards and Reguimmeng for Wo orce- le Housing. Workforce-2i6rdable housingunits built under this - pm " shall: c, a. be multif miffy structures,• b. be rental units-, c. require, at a minimum, adherence to the latest edition of the Florida Building-Code as Ru-b-l-iAh_ed by the Flon :&BuiL&jMCommission: d. not 21W&d in the V-Zone or withi_ the C Barrier Resource System e. require on-site RMU!y mamement f. cowl-cowl-y with a licable habitat and other location] criteria and densitie"far multifamily affordable housing units: g. shall not be p in any habitat defined as mmigMves. Wtmmh & buttonwood. MMi: l Jindwood hammock or fiesh water wetlands y (except for disgubed categories h. incorporate sustainable and resilient design principles into the overall site design: i. ensure accessibility to employment centers and 'ties; j. require deed-restricdons enmdjm that: L the—pMp= remains workforce- able housing in etui ii. tenants evacuate during the pg1jod in which transient units are rewired to evacuate-, Page 3 of 6 Packet Pg.4049 S.2.g 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 Pnc Policy 3-2.13—Evacuation exemptions. Persons living inworkforce-affordable housing who are exempt from evacuation uiremen of Policy 2-1.2.9 includes all first responders, correction officers health care pMfeSSionAls, or other first response workers required to remain during an emergency.provided that the person claiming exemption under this policy has faithfully certified their status with property management. P li 3-2.1.4—ADA Com fiance. All workforce-affordable housin developments must demonstrate compliance with all applicable federal standards for accessibility for persons with disabilities. Poll 3-2.1A -Evaluation and Re orL The Village of Islamorada shall provide an Annual rt to the state land l ;y on the progM and im lamentation of the Workforce- Affordable Housing Initiative.Reported information for gKh Xtar shall include documentation of the number of workforce-affordable units built. ocoMmcy rates and com fiance with the uirement to evacuate the units within the Phase I evacuation-. Suchrevort shall be provided to the State in a timely manner such that the State may include the information in there uired W Annual B=rt to the Governor and Cabinet on the Village of Islamorada's RmgLess ward completion of its Work ProgMM Mouant to Rule 28-19 of the F.A.C. 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 0 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 1; 1 Packet Pg.4050 S.2.g Section cive Date. This Ordinance shall not be effective immediately upon adoption. However,the Amendment shall not take effect until the date the foal order is issued by the c Department of Economic Opportunity to be in compliance in accordance with Chapter 163.3184, Florida Statutes. The Department of Economic Opportunity ("DEO") notice of intent to find the Amendment in compliance shall be deemed to be the final order if no timely petition challenging the Amendment is filed. The foregoing Ordinance was offered by Councilman Ken Davis,who moved its adoption on first reading. This motion was seconded by Councilman Jim Mooney, and upon being put to a a vote,the vote was as follows: :Mayor Deb Gillis YES Vice-Mayor Mike Forster YES Councilman Ken Davis YES e Councilwoman Cheryl Meads YES 2 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: i Mayor Deb Gillis YES Vice Mayor Mike Forster YES Councilman Ken Davis YES Councilwoman Cheryl Meads YES Councilman Jim Mooney YES c PASSED AND ADOPTED on the second reading 4th day of April, 2019. LO DEB GILLIS, ATTEST: K "LI�Y' �t�7�`1-I, VII,LAGE CL1ERKpµW��..`� Pace 5 of Packet Pg.4051 S.2.g APPROVED AS TO FORM AND LEGALITY FOR THE USE AND BENEFIT OF ISLAMORADA, VILLAGE OF ISLANDS ONLY ROGET V. BRYA ,VILLAGE ATTORNEY N c c 2 0 4- 0 i c Lo u a,,,,,,4 „f A Packet Pg.4052 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 c Mr. Ray Eubanks Administrator Plans Review& Processing Florida Department of Economic Opportunity 107 E. Madison Street Caldwell Building, MSC 160 n Tallahassee, Florida 32399 RE:Transmittal of Ordinance 2018-009 upon Second Hearing (Comp Plan Amendment 2018-01ACS0 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. 0 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. This transmittal package contains one (1) hard copy and two (2) CD's of relevant documents including executed Ordinance, staff agenda reports, and other pertinent materials. v) Having been transmitted by the City of Marathon, please accept this adoption package on behalf of the < Department of Economic Opportunity. co Copies of this transmittal have been sent to all appropriate review agencies. co CD N C 0 Packet Pg.4053 S.2.h 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. S Thank you in advance for your review. Should you have any questions, please contact me. 0 Sincerely, t� N George Garrett, > Director of Planning garrettg ki.marathon.fl.us City of Marathon Phone: (305) 289-4111 � Fax: (305) 743-3667 c garrettg ki.marathon.fl.us 0 4- cc: City Clerk City Attorney CD Isabella Cosio Carballo, South Florida Regional Planning Council Deena Woodward, Department of State, Bureau of Historic Preservation Scott Sanders,Florida Fish and Wildlife Commission Comp Plan Review, Department of Agriculture and Consumer Services Plan Review, Department of Environmental Protection Terry Manning, South Florida Water Management District co Shereen Yee Fong, Florida Department of Transportation Kylene Casey, Department of Education Christine Hurley, Monroe County Growth Management Director cv C 0 U Packet Pg.4054 S.2.h COUNCIL AGENDA STATEMENT `i'�l�p,§ _V Meeting Date: October 23, 2018 c 0 , 0 To: Honorable Mayor and Council Members 4g iH M1§9 mat"il� ®y From: George Garrett, Planning Director N 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 a Provisions; Providing For The Transmittal Of This Ordinance To The State Department Of Economic Opportunity; And Providing For An Effective Date. 0 2 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. v) U The Planning Commission heard the item on August 20, 2018 and recommended transmittal to the City Council by unanimous vote. The City Council directed the transmittal of this Ordinance to the co 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 9 of the Comprehensive Plan consistent with the requirements of the Work Program as adopted by Rule. T_ Similarly, the proposed amendment meets the intent of the Workforce-Affordable Housing Initiative set forth by the Administration Commission. C APPLICANT: City of Marathon c REQUEST: Amend City of Marathon Comprehensive Plan by Adding Goal 1-4, concerning the Workforce-Affordable Housing Initiative. w 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.4055 S.2.h 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 2 standards and criteria of Fla. Stat. ch. 163. 0 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 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 o "compliance" which is recited for review below: 163.3184 Process for adoption of comprehensive plan or plan amendment, (1) DEFINITIONS.--As used in this section, the term: a (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 principles for guiding development in designated areas of critical state concern and with part III of -19 chapter 369, where applicable. Thus, leading through an exhaustive process, the State Land Planning c Agency must find a Comprehensive Plan or Plan Amendment in compliance in accordance with the above definition. Process as further defined in the section leads from Local Government Transmittal C through review by the State Land Planning Agency and other required local and state government U bodies to a finding of"in compliance"by the State Land Planning Agency. co Review is contemplated and expected to be completed by such agencies as the South Florida Regional Planning Council, whose responsibility it is to review the proposal for consistency with the Strategic Regional Policy Plan. Such review is not therefore, the responsibility of the local government to co CD determine consistency in this regard and will not be addressed herein. Though referenced in the N definition of compliance and elsewhere Chapters 163.3177, 163.3191, 163.3245, and 369 will not be reviewed as a compliance matter. Chapter 163.3177 defines required elements in a comprehensive plan. The City has an approved comprehensive plan which must be assumed to have all required c elements. Chapter 163.3191 refers to the required Evaluation and Appraisal Report (EAR); a review 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 E and the Wekiva River area and similarly will not be the subject of compliance review herein. Packet Pg.4056 S.2.h Other pertinent review elements leading to a determination of compliance are found in Chapter 163.3178 Coastal management, Chapter 163.3180 Concurrency and the principals for guiding development in the Florida Keys Area of Critical State Concern. This application for a FLUM amendment will be analyzed against the limited compliance issues found in sections of Chapter 163 F.S. and Chapter 380 F.S. noted immediately above. Relevant sections are provided in EXHIBITS 2 2 3, & 4 attached or with website references for your review 0 Compliance Discussion Relevant criteria promulgated in Chapters 163 and 380 F.S.can be itemized in bullets as follows based �— on the critical concerns more specifically identified in the City's comprehensive plan: • Natural Resource Protection o Wetlands o Estuaries o Living marine resources o Beaches/Dunes o Unique wildlife habitat o Water Quality • Historical Resources • Infrastructure/ Concurrency Management 2 o Wastewater o Stormwater c o Potable Water CD o Solid Waste o Transportation • Affordable Housing • Hazard Mitigation 9 o CHHAco i o Hurricane Evacuation �+ • Ports co T- CD o Marina Siting c� • Public Use o Shoreline use and Access o Water dependent and independent activity 0 • Land Acquisition o Conservation o CHHA o Public Services " These bullet items should be utilized as the focus points for review of the proposed FLUM amendment E and for future comprehensive plan amendments. Packet Pg.4057 S.2.h SUMMARY This proposed Comprehensive Plan Amendment will add the Workforce-Affordable Housing Initiative to the City's adopted Comprehensive Plan allowing the allocation of up to 300 new affordable residential units identified as "Early Evacuation" Affordable Residential Allocations. 0 ANALYSIS Natural Resources N 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 a incidental take permit to FEMA from FWS. See Exhibit 1 —FEMA-FWS documentation Historical and Cultural Resources c 2 Elements of the City's Land Development Regulations, Chapter 106, Article 5 & 7 (See Exhibit 2), 0 protect existing historic and cultural resources. No Significant Impact would result from the proposed 0 change. � Infrastructure v) No Significant Impact would result from the proposed change. co Wastewater infrastructureco No Significant Impact would result from the proposed change. See Exhibit 3 T_ N Stormwater infrastructure r_ The City of Marathon developed an award winning stormwater system simultaneous with the c construction of its wastewater system for City owned rights-of-way. Stormwater is otherwise managed on site through the City's stormwater Ordinance (see Exhibit 4). No Significant Impact would result from the proposed change. See Exhibit 4. Potable Water a� No Significant Impact would result from the proposed change. See Exhibits 5a& b Solid Waste Packet Pg.4058 S.2.h No Significant Impact would result from the proposed change. Transportation LOS for U.S. 1 and adjoin streets is well within LOS standards for transportation. No Significant 2 Impact would result from the proposed change. See Exhibit 6 0 Affordable Housing The proposed amendment will significantly enhance the City's continuing efforts to enhance affordable housing in the Keys. See Exhibit 7 a& b which elucidate the critical nature of the need for affordable housing. These are documents which were produced before Hurricane Irma which served to underscore the problem with the loss of more than 400 residential structures in the City of Marathon. Hazard Mitigation No Significant Impact would result from the proposed change. a Coastal High Hazard Areas 0 No Significant Impact would result from the proposed change. 0 4- Hurricane Evacuation 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 U) Storm Force Winds in the Keys. Already, the Emergency Management Departments within the Florida Keys coordinate the evacuation of not only their permanent residents, but the temporary co residents visiting the Keys in the short term. Conceptually, adding the "Early Evacuation Residential units to the list of facilities and residential units that leave the Keys in the first 24 hours is relatively simple. Statutorily (380.0552 (9) (a) (2), the City cannot exceed the 24 hour evacuation time for its co permanent residents. The Statue, on the other hand, does not define how, the County and 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 r- Management officials require that individuals living in low lying areas evacuate early. See Exhibits 8a, b, c, d, & e. Ports—Marina Siting w No Significant Impact would result from the proposed change. E Public Use—Access to Water No Significant Impact would result from the proposed change. Packet Pg.4059 S.2.h Land Acquisition The proposed amendment will utilize existing land acquisition mechanisms to further the purposes of providing affordable housing within the City. Because of the critical nature and need for affordable housing at this time, funding provided to the Monroe County Land Authority and funds provided 2 through the Stewardship Act have been prioritized for the acquisition of lands for affordable housing. In addition, some of the Recovery funds provided through CDBG-DR and similar sources may be utilized for the purchase of such lands. Alternate Compliance Review Criteria Since there are no internal Comprehensive Plan change review criteria available in Chapter 102, Article 6, those that would apply for an LDR text change request (Chapter 102, Article 7) are useful. The basis for the LDR text change criteria are the same as for a Comprehensive Plan change ultimately. Section 102.26(B) of the Land Development Regulations requires that the following standards and criteria be considered for any proposed text amendment. Each criteria and explanation of relevance a to this proposed amendment are listed below: A. The need and justification for the change; 2 The City is limited in the number of BPAS allocations allowed within the City of Marathon as 0 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 ?: 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." U) The need for new affordable housing is overwhelming because of the impacts of the storm and the significant loss of affordable units to Hurricane Irma. co i B. The consistency of the proposed amendment with the Comprehensive Plan; and co T_ CD Comprehensive Plan Policy 1-3.5.9, requires that the City "shall work with the State to obtain more residential allocations specifically for affordable housing." The Administrative Commission's Workforce-Affordable Housing Initiative is the result of the City's efforts to r_ obtain more affordable allocations. 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. w The proposed text amendments furthers the purposes of the LDRs and other City Codes, a regulations and actions designed to implement the Comprehensive Plan by providing the E mechanism to obtain and implement the Workforce-Affordable Housing Initiative.. CONCLUSION: Packet Pg.4060 S.2.h The proposed Amendment is consistent with and furthers the goals of the City of Marathon Comprehensive Plan and Land Development Regulations. RECOMMENDATION: The City Council unanimously voted for approval of this Ordinance in its first hearing on September 2 11, 2018. This is the second hearing for this Comprehensive Plan amendment. No changes have been made to the Ordinance and the Department of Economic Opportunity has approved the Comprehensive Plan amendment in its Objections, Recommendations, and Comments (ORC)letter dated last week. The Planning Commission heard the item on August 20, 2018 and recommended transmittal to the City Council by unanimous vote. The City Council directed the transmittal of this Ordinance to the State Department f Economic Opportunity on September 11, 2018. The Department of Economic Opportunity has provided a review of the proposed amendment and indicated that it furthers the goals of the Comprehensive Plan consistent with the requirements of the Work Program as adopted by Rule. Similarly, the proposed amendment meets the intent of the Workforce-Affordable Housing Initiative set forth by the Administration Commission. 0 2 0 4- 0 co CD co T_ CD cv r_ 0 Packet Pg.4061 S.2.h COUNCIL AGENDA STATEMENT ` Ad 1, Meeting Date: October 23, 2018 .� To: Honorable Mayor and Council Members From: George Garrett, Planning Director N 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 a Provisions; Providing For The Transmittal Of This Ordinance To The State Department Of Economic Opportunity; And Providing For An Effective Date. 0 2 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. v) U The Planning Commission heard the item on August 20, 2018 and recommended transmittal to the City Council by unanimous vote. The City Council directed the transmittal of this Ordinance to the co State Department of 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 9 of the Comprehensive Plan consistent with the requirements of the Work Program as adopted by Rule. T_ Similarly, the proposed amendment meets the intent of the Workforce-Affordable Housing Initiative set forth by the Administration Commission. C APPLICANT: City of Marathon c REQUEST: Amend City of Marathon Comprehensive Plan by Adding Goal 1-4, concerning the Workforce-Affordable Housing Initiative. w 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.4062 S.2.h 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 2 standards and criteria of Fla. Stat. ch. 163. 0 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 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 o "compliance" which is recited for review below: 163.3184 Process for adoption of comprehensive plan or plan amendment, (1) DEFINITIONS.--As used in this section, the term: a (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 principles for guiding development in designated areas of critical state concern and with part III of -19 chapter 369, where applicable. Thus, leading through an exhaustive process, the State Land Planning 0 Agency must find a Comprehensive Plan or Plan Amendment in compliance in accordance with the above definition. Process as further defined in the section leads from Local Government Transmittal C through review by the State Land Planning Agency and other required local and state government U bodies to a finding of"in compliance" by the State Land Planning Agency. co Review is contemplated and expected to be completed by such agencies as the South Florida Regional Planning Council, whose responsibility it is to review the proposal for consistency with the Strategic Regional Policy Plan. Such review is not therefore, the responsibility of the local government to co CD determine consistency in this regard and will not be addressed herein. Though referenced in the N definition of compliance and elsewhere Chapters 163.3177, 163.3191, 163.3245, and 369 will not be reviewed as a compliance matter. Chapter 163.3177 defines required elements in a comprehensive plan. The City has an approved comprehensive plan which must be assumed to have all required elements. Chapter 163.3191 refers to the required Evaluation and Appraisal Report (EAR); a review 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 E and the Wekiva River area and similarly will not be the subject of compliance review herein. Packet Pg.4063 S.2.h Other pertinent review elements leading to a determination of compliance are found in Chapter 163.3178 Coastal management, Chapter 163.3180 Concurrency and the principals for guiding development in the Florida Keys Area of Critical State Concern. This application for a FLUM amendment will be analyzed against the limited compliance issues found in sections of Chapter 163 F.S. and Chapter 380 F.S. noted immediately above. Relevant sections are provided in EXHIBITS 2 2 3, & 4 attached or with website references for your review 0 Compliance Discussion Relevant criteria promulgated in Chapters 163 and 380 F.S.can be itemized in bullets as follows based �— on the critical concerns more specifically identified in the City's comprehensive plan: • Natural Resource Protection o Wetlands o Estuaries o Living marine resources o Beaches/Dunes o Unique wildlife habitat o Water Quality • Historical Resources • Infrastructure/ Concurrency Management 2 o Wastewater o Stormwater c o Potable Water CD o Solid Waste o Transportation • Affordable Housing • Hazard Mitigation 9 o CHHAco i o Hurricane Evacuation �+ • Ports °o T- CD o Marina Siting c� • Public Use o Shoreline use and Access o Water dependent and independent activity 0 • Land Acquisition o Conservation o CHHA o Public Services " These bullet items should be utilized as the focus points for review of the proposed FLUM amendment E and for future comprehensive plan amendments. Packet Pg.4064 S.2.h SUMMARY This proposed Comprehensive Plan Amendment will add the Workforce-Affordable Housing Initiative to the City's adopted Comprehensive Plan allowing the allocation of up to 300 new affordable residential units identified as "Early Evacuation" Affordable Residential Allocations. 0 ANALYSIS Natural Resources N 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 c 2 No Significant Impact would result from the proposed change. 4- 0 Wastewater infrastructure CD No Significant Impact would result from the proposed change. v) Stormwater infrastructure CO No Significant Impact would result from the proposed change. CO Potable Water T_ N No Significant Impact would result from the proposed change. Solid Waste 0 No Significant Impact would result from the proposed change. Transportation No Significant Impact would result from the proposed change. E Affordable Housing The proposed amendment will significantly enhance the City's continuing efforts to enhance affordable housing in the Keys. Packet Pg.4065 S.2.h Hazard Mitigation No Significant Impact would result from the proposed change. c Coastal High Hazard Areas 0 c No Significant Impact would result from the proposed change. Hurricane Evacuation No Significant Impact would result from the proposed change. All Early Evacuation units (tenants) would be required to evacuate within the first 24 hours of a 48 hour evacuation window. The City's (and County) obligation is to be prepared to evacuate at 24 hours before the impacts of Tropical Storm Force Winds in the Keys. Ports—Marina Siting a No Significant Impact would result from the proposed change. 0 Public Use—Access to Water 2 0 4- No Significant Impact would result from the proposed change. 0 Land Acquisition t� The proposed amendment will utilize existing land acquisition mechanisms to further the purposes of t) providing affordable housing within the City. CO Alternate Compliance Review CriteriaCO Since there are no internal Comprehensive Plan change review criteria available in Chapter 102, T- CD 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. r- Section 102.26(B) of the Land Development Regulations requires that the following standards and c criteria be considered for any proposed text amendment. Each criteria and explanation of relevance 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 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.4066 S.2.h work with the State to obtain more residential allocations specifically for affordable housing." The need for new affordable housing is overwhelming because of the impacts of the storm and the significant loss of affordable units to Hurricane Irma. B. The consistency of the proposed amendment with the Comprehensive Plan; and c 0 Comprehensive Plan Policy 1-3.5.9, requires that the City "shall work with the State to obtain 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. 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.. a CONCLUSION: c The proposed Amendment is consistent with and furthers the goals of the City of Marathon 2 Comprehensive Plan and Land Development Regulations. 4- 0 RECOMMENDATION: The City Council unanimously voted for approval of this Ordinance in its first hearing on September 11, 2018. This is the second hearing for this Comprehensive Plan amendment. No changes have been made to the Ordinance and the Department of Economic Opportunity has approved the Comprehensive U) Plan amendment in its Objections, Recommendations, and Comments (ORC)letter dated last week. co The Planning Commission heard the item on August 20, 2018 and recommended transmittal to the City Council by unanimous vote. The City Council directed the transmittal of this Ordinance to the State Department f Economic Opportunity on September 11, 2018. The Department of Economic 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. Similarly, the proposed amendment meets the intent of the Workforce-Affordable Housing Initiative r_ set forth by the Administration Commission. 0 Packet Pg.4067 S.2.h Sponsored By: Lindsey Planning Commission Public Hearing Date: August 20, 2018 City Council Public Hearing Date: September 11, 2018 October 23, 2018 Enactment Date: October 23, 2018 2 0 CITY OF MARATHON, FLORIDA ORDINANCE 2018-09 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 a 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 2 OF THIS ORDINANCE TO THE STATE DEPARTMENT OF ECONOMIC OPPORTUNITY AFTER FINAL ADOPTION BY THE CITY COUNCIL; AND PROVIDING FOR AN EFFECTIVE. CD 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") U) pursuant to Chapter 163, Florida Statutes; and co WHEREAS, the City is located within the Florida Keys Area of Critical State Concern (the"FKACSC"), as established pursuant to Chapter 380, Florida Statutes; and co T_ CD WHEREAS, pursuant to the provisions of Chapters, 163, 166 and 380 Florida Statutes, the City of Marathon, Florida (the "City") proposes to amend Chapter 1, "Future Land Use Element," of the Comprehensive Plan; and r_ 0 WHEREAS, adding Goal 1-4, "Workforce-Affordable Housing Initiative," and associated Objective, and Policies which further the goals, objectives and policies of the City Comprehensive Plan (the "Plan"); and WHEREAS, pursuant to Chapter 163, Florida Statutes, and Sections 101.02 and 102.22 of the Code, the Planning Commission sitting as the Local Planning Agency publicly considered E the proposed text amendment on August 20, 2018 at a duly noticed public hearing, and has recommended approval of the proposed Map amendment to the City Council; and Packet Pg.4068 S.2.h WHEREAS, the City Council reviewed and approved transmittal of this Ordinance to the Florida Department of Economic Opportunity and other required agency reviewers on September 11, 2018; and WHEREAS, the State Department of Economic Opportunity returned a favorable 2 Objections, Recommendations, and Comments (ORC) Report during the week 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 ORC Report, considered the recommendation of the Planning Commission, accepted additional public input, and deliberated on the proposed Policy amendment on October 23, 2018 at a duly noticed public hearing, and recommended that the amendment be transmitted to the Florida Department of Economic Opportunity as formally adopted by the City; and WHEREAS, the City Council finds that approval of the proposed Policy amendments are in the best interest of the City and complies with applicable laws and is consistent with the South Florida Regional Plan, the State Plan, Chapter 163, Florida Statutes, the principles for a 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 2 WHEREAS, the City Council desires to approve the proposed amendment pursuant to 0 Chapter 163.3184 F.S., in accordance with State law, 0 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF MARATHON, FLORIDA THAT c+r-iket„-at .i, = deletion bold underline= addition co i SECTION 1. The above recitals are true, correct, and incorporated herein by this co reference. r- N SECTION 2. Amend the Comprehensive Plan, Chapter 1, Future Land Use Element, to include Goal 1-4 and related objective and policies: r- 0 Goal 1-4 Workforce-Affordable Housing Initiative. To support the City of Marathon's workforce by alleviating constraints on affordable housing, the City shall participate in the Workforce-Affordable Housing Initiative, as approved during the June 13, 2018 meeting of the Administration Commission. The w Workforce-Affordable Housing Initiative will require new construction or repurposed structures that participates to commit to evacuating renters in the 48 to 24-hour window of E evacuation. Obiective 1-4.1 Provide Workforce-Affordable Housing Building Permit Allocations. 'Additions to existing text are shown by underline;deletions are shown as stfikealrough Packet Pg.4069 S.2.h Pursuant to Policy 1-3.5.9, the City has worked with the State Department of Economic Opportunity to "obtain more residential allocations specifically for affordable housing." The City thereby, shall establish a new limited category to be known as the "Affordable - Early Evacuation Pool" which will provide 300 workforce-affordable building permit allocations for the Workforce-Affordable c Housing Initiative. These allocations are in addition to the maximum allocations identified in Rules 28-18, Florida Administrative Code. The City shall be responsible for the management, distribution, and enforcement of requirements associated with the Early Evacuation Affordable allocations. The City of Marathon shall ensure adherence to these requirements through implementation of the policies of this objective. Policy 1-4.1.1—Distribution of Workforce-Affordable Housing Allocations. Workforce-affordable housing allocations shall be distributed at any time through adequate public notice and hearing procedures pursuant to Chapter a 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). 2 0 4- Policy 1-4.1.2 - Specific Standards and Requirements for Workforce- 0 Affordable Housing. ?: CD Affordable-Early Evacuation residential units under this program shall: a. be multifamily structures; t) b. be rental units; c. require, at a minimum, adherence to the latest edition of the co Florida Building Code as published by the Florida Building Commission; co , d. not be placed in the V-Zone or within the Coastal Barrier T- Resource Systems; N e. require on-site property management; f. comply with applicable habitat and other locational criteria and C densities for multifamily affordable housing units; g. shall not be placed in any habitat defined as mangroves, saltmarsh & buttonwood, hardwood hammock, or fresh water wetlands (disturbed categories excepted); h. incorporate sustainable and resilient design principles into the overall site design; i. ensure accessibility to employment centers and amenities; j. require deed-restrictions ensuring: (i) the property remains workforce-affordable housing in perpetuity; 'Additions to existing text are shown by underline;deletions are shown as stfikealrough Packet Pg.4070 S.2.h (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; 0 (iv) onsite property managers are formally trained in evacuation procedures. Policy 1-4.1.3—Evacuation exemptions. Persons living in workforce-affordable housing who are exempt from evacuation requirements of Policy 1.1.2.i.60 include all first responders, correction officers, health care professionals, or other first-response workers required to remain during an emergency, provided the person claiming exemption under this policy has faithfully certified their status with property management. a Policy 1-4.1.4—ADA Compliance. 0 All workforce-affordable housing developments must demonstrate 2 compliance with all applicable federal standards for accessibility for persons 0 with disabilities. 0 Policy 1-4.1.5 -Evaluation and Report. CD The City of Marathon shall provide the state land planning agency with an 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 co i rates, and compliance with the requirement to evacuate the units in the 9 Phase I evacuation. Said report shall be provided to the State in a timely T- manner such that the State may include the information in the required Annual Report to the Governor and Cabinet on the City of Marathon 0 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 LUx 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 E intent that this Ordinance shall stand notwithstanding the invalidity of any part. SECTION 4. The provisions of this Ordinance constitute a"Comprehensive Plan amendment' as defined by State law. Accordingly, the City Clerk is authorized to forward a copy of this Ordinance to the DCA and other state agencies for review and approval pursuant to 'Additions to existing text are shown by underline;deletions are shown as stfikealrough Packet Pg.4071 S.2.h Sections 380.05(6) and (11), Florida Statutes. SECTION 5.This Ordinance shall be effective immediately upon approval by DCA pursuant to Chapters 163 and 380, Florida Statutes. c SECTION 6. This Ordinance shall be effective immediately upon approval by the Department of Economic Opportunity pursuant to Chapters 163 and 380, Florida Statutes. t� ENACTED BY THE CITY COUNCIL OF THE CITY OF MARATHON, FLORIDA, THIS 23RD DAY OF OCTOBER, 2018. THE CITY OF MARATHON, FLORIDA Michelle Coldiron, Mayor c AYES: NOES: 2 ABSENT: ABSTAIN: ATTEST: co CD Diane Clavier, City Clerk co T- CD APPROVED AS TO FORM AND LEGALITY FOR THE USE `~ AND RELIANCE OF THE CITY OF MARATHON,FLORIDA ONLY: r- 0 David Migut, City Attorney w 'Additions to existing text are shown by underline;deletions are shown as stfikealrough Packet Pg.4072 S.2h 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 c ORDINANCE 2018-09 CITY OF MA-RATHON, FLORIDA AN ORDINANCE OF THE CITY OF MARATHON, FLORIDA, AMENDING THE CITY'SCOMPREHENSIVE PLAN, ADDING GOAL - AND ASSOCIATED OBJECTIVES AND II POLICIES TO CHAPTER I, "FUTURE LAND USE ELEMENT;" AND GOALI-4 StIALL III KNOWN � A 'THE "WORKFORCE-AFFORDABLE HOUSING INITIATIVE" � PROVIDING FOR A IN ADDITIONAL 300 AFFORDABLE ALLOCATIONS TO AN ALLOCATION POOL TO III IDENTIFIED A4 THE AFFORDABLE-EARLY EVACUATION POOL;" AND PROVIDING FOR EVE ABILIT ' PROVIDING FOR TIIE. I EPrA.L OF n CONFLICTING PROVISIONS; PROVIDING FORTHETRANSMITTAL 0 OF THIS l I CE TO THE STATE DEPARTMENT OF � ECONOMIC IC OPPORTUNITY AFTER R FINAL ADOPTION BY THE CITY COUNCIL; AND PROVIDING SIDING L'C .. AN I1,FFECTI 'I'J.. 0 WHEREAS. the City of Marathon (the -*City") has adopted a Comprehensive flan which has been found to be in crsrnplian,ce by the :State Department of Community Affairs ("I)C A""), W pursuant to C'haptc:r 1 Ci). Florida Statutes: and WHEREAS. the City is located within the Florida Keys Area of Critical State; Concern (the K_A.C'SC") as established pursuant to Chapter 3 80, Florida Statutes, and co CD WHEREAS. pursuant to the provisions of Chapters. 163. 166 and 80 Florida Statutes, the City of Marathon. Florida (the "C"ivy") proposes to amend Chapter 1, "Future Land Use Elernent," ofthe Cornpreliens]ve Ilan, and WHEREAS, adding Cic)al 1- . "Wor force-Aftbrdable. 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 16-, 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 X4ap amendment to the City Council: and Packet Pg.4073 S.2h 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, c 2018 indicating that the City could adopt this proposed Ordinance as written: and 0. WHEREAS, pursuant to the same legislative, provision, the City Council accepted the: ca ORC l epost., considered the recommendation of the Planaaing Commission, accepted additional public input, and deliberated on the proposed Policy amendment on October 2), `018 at a. duly noticed public hearing , and recommended that the amendment be transmitted to the Florida Department of`Economic Opportunity as for-malty adopted by the City; and WHEREAS,S, the City Council finds that approval of the proposed Policy amendments are in the best interest of the City and complies with applicable laws and is consistent with the � South Florida Regional flan. the State flan, Chapter 163- f7orida Srutaues. 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 N 0 WHEREAS. the City Council desires to approve the proposed amendment pursuant to � Chapter 1 b-3.3184 I°.S., in accordance; with State law, 4- NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE c CITY OF MAILATHON, FLORIDATHAT t14lea-taa #la deletion bold underline addition SECTION I. The above recitals are true;,: correct_ and incorporated herein by this reference. I SI:<C.'TI .. Aniend the Comprehensive Plan. Chapter 1. Future Land (Ilse Element. to cV include. Goal 1-4 and related, objective and policies: Goal 1-4 rorkfoi-ce-Affoi- able Housing Initiative. To supVort the C it of araatora's °orlt°ores lay' alleviatira constrain nrtnlale housing, the Citv shallparticipate.,in the 'orkforce- ffordable Housin Initiatwe as as a roved dui-in the June 1 2018 meet,ing of t e administration Commission. The Workforce-AffordableHousing,_Initiative will re wire new construction or re ur. osed LU structures that partigipaLelto commit to evacuating renters in the 48 to -hour_window of evacuation. � Objective 1- ..1 Provide Workforce-Affordable Housigg Building Permit Allocations., ddiIions to exisktng text:are:s1bM%11 h Rirt€;lCtaMCz &l0 10 I,cVQ,ho%k n a, Af4kettvk ugh Packet Pg.4074 S.2h Pursuant to Pralic l- < . the City has worked with the State lie arinaent of Economic Opj2ortunih, to "obtain more residential allocations s ecificall�� for affordable housin z, ' T`he City therebw shall establish a new limited category to be known as the "Affordable - Farb' Evacuation Pool" which will araawide 300 wwrarliforee-affordable building per it allocations for the Workforce-Affordable l musics ° Initiative. These allocations are in addition to the maximum allocations identified in Mules -1. Florida Administrative Grade. The City shall be responsible for the management distribution and enforcement of re uire eats associated with the. Early Evacuation Affordable allocations. The it_v e ' Marathon shall ensnare adherence to these re uirements through implementation eaf the policies of this objective. Policy f- .1. -- Distribution of Workforce-Affordable Housingallocations. ork,force-affordable housiaa allocations shall be distributed at any time through adcA crate _ aablie notice and hearing procedures pursuant_to Chaptei 102, Articles 1 through of the Citys Land Development Regulations and in accordance with the BPAS rarrkin rocedures established, in :'ha ter 107 !article l9 `` 3uilding leer rt Allocation Sv terw� AS). N 0 Policy 1- .1. - Specific to ndards and lie. uirements for orkforce- w Affordable Housing 2 0 ffordable l: arly Evacuation residential units under dais rcr ram shall. c a. be multifamily structures* CD b. be rental units c. re uire at a minimurn,2adherence to the latest edition of the Florida Building 'ode as published by the Florida Building C€rarimissicarr d. not be placed in the ,a- cane or within the Coastal Barrier Co Resource w sterns- � e. require earn site reperty management; f. crai atwly wwith a talicaable habitat and rather locational criteria and densities for multrfdamilw affordable housin arrrits -- - f;. shall not be laced in any habitat defined asmangroves,saltmarsh buttonwwopd hard",,00 haaa mocl car fresh water wetlands Ldisturbed categories excepted) h. incrsr earate sustainable and resilient design principles into the overall site design: i. ensure accessibility to employment centers and amenities LU j. re uir e_deed-restrictions ensuring: (i) the lareaer iw rerraarras workforce-affordable housing-in tacrraetuitwwi ii) tenants evacuate during the aerTirad in which transient awaits nice rear it d to evacuate Addition:to oirman-text are,homl l» nndcrltnc deletioat. ire ,Ir�arxsX § �t�al t,9�r�t k7 Packet Pg.4075 S.2h (iii) rental_agreeaaaents contain a setaarate disclosure rcclaairin renters to aackn,owwled e that: failure to adhere to the evacuation recjaairement could result in severe peaaalties, inclu in eviction to the reside t (iv) nsite pLo ert t manatgers aa•e formally trained lay evacuation )rocedu es Poliey 1-4.1Evacuation ex eaaaaatiaaaas, Pei-sons liw iaag lea orl fore -aaffordable hcaaslai ho are exeMDt from evacuation requirements of Iwcalac 1 1 2 a. ii) include all lrst a-estac tiers, N correction ol'lWicea`s heaalth Caere L)rca essacaaaals car rather first-res acaaase wwaarlcers re uired to remain during an e er eaacw �a caw We the ea s as cl iaaalaw_ exemgjj2g as acler this licw� has "aithfully certified their staatus ww°ith ro ertw° awaana Lenient. Policy 1- .1. — ADA Cc gipliaance. All workforce-affordable housing develo n �ients must demonstrate compliance with all atataQicahle federal standards fcaa• accessibility fcaa- ea—sonsN with disabilities. c P21ic.y .1 1.. Evaluation and Report. 0 19 The 1tv of Marathon shall ro-s isle the: state laaacl planning a encv with ail annual report can the rota-ess and implementation of theWorkforce- CD Affordable Rousing Initiative. Ike acartecl information shall include _ documentation of the number of workforce-ai`l'car able units built Deal ;anc r c� rates, andcompliance with the rec�aaireaaaent to evacuate the units in the Phase I evacuation. Said reRcart shall he provided to the State in a timely co manner such that the Mate may include the information in the -required Annual nual Report to the Governor and Cabinet on the City of Marathon co rca ress toward coMp letion of its Work Pi-o raaaw pursuant to Goal -1 of the `ity's Comprehensive Plan and hale 2 -1 , .. . "". `V SECTION . ..le.he provisions of this Ordinance are declared to be severable and if any section, sentence, clause cat'phraase of this Ordinance shall for any reason be held to be invalid or unconstitutionaal„ such decision shall not affect the validity ol`the remaining sections- sentences, clauses, and phrases of this Ordinance but they shall remain in elf'ect, it being the legislative c intent that: this Ordinance shall stand notwithstanding the invalidity of'any part. SECTION 4. The provisions ofthis Ordinance constitute a --Comprehensive Plan � amendment`" as defined by State law. Accordingly, the City C'lcrk is authorized to lorww'ard a E 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 a tatutes, 'Addilikiris to exi to g tu,rt,ne;Itown bN undcrhne.delajons,are Jtfrwn a,tm4ka8firouN11 Packet Pg.4076 S.2h 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. c 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 N Michelle Coldiron, Mayor AYF"S: Zieg, Cook,, Senmartin, f artUS, Coldiron NOES: None ABSTAIN: None 0 ABSFNT: None 0 "ITS".fir 0 -' +L -.� a D' iane Clavier, C i I' er k AP13ROVED AS TO FORM AND LEGALITY FOR THE USE AN'D RELIANCEOFTHE CITY OF MARATHON, FLORIDA ONLY: CD co co - CD 1'.r Davie 1igut' City` .` ttor'ney M i�'tiic�rt t�. xw5tusi [ ,asp,f�crsr-rr I:. �bri�l Arlie,clkJeri ns are shwmi as sf4kohvot} gai Packet Pg.4077 S.2.i THEST a 4a d THE CITY OF KEY WEST CITY CLERK'S OFFICE w. . Post Office Box 1409 . West FL 3304C1409(305)809-3831 E-mail:csm�th cis oflce west-fl. ov SENT VIA US CERTIFIED MAIL:_ 7018 0680 00018332 March 12, 2019 DEO-Bureau of Comprehensive Planning Ray Eubanks,State Land Planning Agency Caldwell Building 107 E.Madison MSC160 > Tallahassee,FL 32399-4120 Re: An Ordinance of the City of Key West, Florida, amending the City's Comprehensive Plan, adding Objective 1-1.17 and associated policies to Chapter 1, "Future Land Use Element"; Objective 1-1.17 shall be known as the "Workforce-Affordable Housing Initiative" le 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. Pursuant to Chapter 163.3184(4), Florida Statutes, the City of Key West City Commission, acting co rl within the jurisdiction of the Florida Keys Area of Critical State Concern (designated pursuant to ua Section 380.05, F.S.), hereby transmits one (1) hard copy and two (2) compact discs of a proposed amendment to the Comprehensive Land Use Plan. This amendment is subject to State aw Coordinated Review Process, Section 163.3184(4), Florida Statutes, and the City requests the State Land Planning Agency to formally review the proposed Comprehensive Plan amendment. This amendment was heard and adopted on 2"d reading at a regular meeting of the City Commission on March 5, 2019 under Ordinance No. 19-06. Copies of the entire amendment package are also being provided to the Florida Department of Environmental Protection, Florida Department of Transportation and South Florida Water E Management District, Florida Department of Economic Opportunity. Key to tfie Carr66ean—aveacage yearly tenr1mrattare 77 °Tafiivnreit. Packet Pg.4078 S.2.i THE CITY OF KEY WEST CITY CLERK'S OFFICE Post Office Box 1409 Key West,FL 33041-1409(305)809-3831;E-mail:csmith@cityofkeywest-fl.gov 0 CJ Amendment Name/Description: Key West Ordinance No. 19-06 An Ordinance of the City of Key West, Florida, amending the City's Comprehensive Plan, adding Objective 1-1.17 and associated policies to Chapter 1, "Future Land Use Element"; Objective 1-1.17 shall be known as the "Workforce-Affordable Housing Initiative" providing for an additional 300 affordable allocations to an allocation pool to be identified as the "Affordable-Early Evacuation Pool", pursuant to Chapter 90, Article VI, Division 3; Providing for severability; Providing for repeal of inconsistent provisions; Providing for inclusion into the City of Key West Comprehensive Plan; Providing for an effective date. a) 2 Thank you in advance for your timely review of these materials. Should you have any questions about the proposed Comprehensive Plan Amendment Ordinance, please contact Patrick Wright, Director of Planning at(305) 809-3778 and p right @cityofke est-fl.gov. CD Sincerely, eAVLdi J41�� Co Cheryl Smith, MMC, CPM City Clerk 2 Enc CS/sph Cc: Plan Review, Department of Environmental Protection LU Kenneth Jeffries, Florida Department of Transportation Terry Manning, South Florida Water Management District Ray Eubanks, Department of Economic Opportunity Patrick Wright, Director of Planning, City of Key West Ordinance 19-06 Comp Plan Key to tfie Cari66ean —average yearfjr temperature 77 °Ta(t.7er7fieit. Packet Pg.4079 S.2.i ORDINANCE ® f9-06 WEST,AN ORDINANCE OF THE CITY OF KEY FLORIDA, AMENDING THE CITY'S 0. PLAN, ADDING OBJECTIVE 1-1.17 AND ASSOCIATED POLICIES TO CHAPTER T "FUTURE ELEMENT"; OBJECTIVE _ 7 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 TT' PURSUANT TO CHAPTER ? ARTICLE T DIVISION 4 PROVIDING FOR SEVERABILITY t8 T PLAN;PROVIDING FOR REPEAL OF INCONSISTENT PROVISIONS; PROVIDING FOR INCLUSION INTO THE CITY OF KEY WEST COMPREHENSIVE EFFECTIVE DATE. AND PROVIDING FOR AN 2 the City of Key West (the "City") has adopted a Comprehensive Plan 0 0 which has been found to be in compliance by the State Department of Community Affairs CD (" CA"),pursuant to Chapter 16 , Florida Statutes;and W e City is located within the Florida eys Area of Critical State Concern co (the" ")as established su t to Chapter 30, Florida Statutes;aildi 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 associated policies, will further the goals, objectives, and policies of the City Comprehensive Plan;and Pagel of 5 Packet Pg.4080 S.2.i NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF KEY WEST, FLORIDA: 0 The Comprehensive Plan is hereby amended as follows*: N 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 0 in the Phase I clearance window of evacuation. The City thereby, shall establish a new limited 2 0 4- le category to be known as the "Affordable — Early Evacuation Pool" which will rode 300 workforce-affordable building permit allocations for the Workforce-Affordable Housing Initiative as well as any additional allocations which mav be authorized by the Florida U Administration Commission or transferred to Kea West that are not acce ted_by_other Florida co Keys municipalities or Monroe County. These allocations are in addition to the building permit (01 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 Cite of Kev 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 _�_.._i_ underlined and a_ib _ _____._ through at second reading. ) Page 2 of 5 Packet Pg.4081 S.2.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 hearinrrocedures tursuant to . 0 Chapter 108 of the Cit 's Land Development Re lations. In the event applications received exceed the allocations authorized herein, the competing applications shall be ranked in accordance with the BPAS ranking procedures in Chapter 108. Section 997 c . Polio° 1-1.17.2: Specific Standards and Re uirements for Workforce-Affordable Housin Affordable-Earle Evacuation residential units built under this program shall: a. be multiple-family structures: a b. _ be rental units; 0 c. require. at a minimum, adherence to the latest edition of the Florida Buildin 2 0 4- Code as published by the Florida Building Commission; d. require on-site property management: e. comply with applicable habitat and other locational criteria and densities for multiple-family affordable housinu,units: co f incorporate resilient design principles into the overall site design.. (01 g ensure accessibility to employment centers and amenities: r- h. require deed-restrictions ensuring: y t i) the roPea y remains workforce-affordable housing in per-petui np tenants evacuate during the Phase I evacuationperiod• " m rental agreements contain a separate disclosure reguiring tenants to acknowledge that failure to adhere to the evacuation requirement could result in severe penalties. including eviction, to the resident: Page 3 of 5 Packet Pg.4082 S.2.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 0 remain in the lower key; during an emergency _evacuation. .provided the 12erson claiming exemtion under thisolic has faithfull °certified their status with ro.ertv management. N 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 landa planningagency with an annual re)orten the progress and_implementation. of the Workforce- 0 Afford _ lude documentation of the number 2 0 4- le ofworkforce-affordable units built. occu c rarates, and compliance with the require ent to evacuate the units in the Phase I evacuation. U Section 2. If any section, provision, clause, phrase, or application of this Ordinance is co held invalid or unconstitutional for any reason by any court of competent jurisdiction, the r-I to remaining provision of this Ordinance shall be deemed severable therefrom and shall be constructed as reasonable and necessary to achieve the lawful purposes of this Ordinance. Section 3. All Ordinances or parts of Ordinances of said City in conflict with the provisions of this Ordinance are hereby superseded to the extent of such conflict. Section 4. This Ordinance shall go into effect immediately upon its passage and adoption and authentication by the signature of the presiding officer and the Clerk of the Commission and approval by the Florida Department of Economic Opportunity, pursuant to Chapter 380, Florida Statutes. Page 4 of 5 Packet Pg.4083 S.2.i Read and passed by the City Commission at a regular meeting held this 2ni-h day of November 2018. wwww....... Read and passed on final reading at a regular meeting held this 5th day of0. 0 ......._................. . March ,20_• Authenticated by the presiding officer and Clerk of the Commission on 6th day of N March 2019 Filed with the Clerk March 6th 2019 Mayor Teri Johnston Yes Commissioner Gregory Davila Yes Commissioner Mary Lou Hoover Yes U) Commissioner Sam Kauftnan Yes Vice Mayor Clayton Lopez Yes Commissioner Billy Wardlow Yes 0 Commissioner Jimmy Weekley _Yes k Af + W Yp TERI JO[MTON, MAYOR Co ATTEST: , CHERYL SMITH, CITY CLERK Page 5 of 5 Packet Pg.4084 S.2.i F _ EXECUTIVE SUMMARY MY ® Jim Scholl, City Manager Patrick Wright,Planning Director From: Vanessa Sellers, Planner II Meetingate® November 20, 2018 ® Text Amendment of the Comprehensive Plan—An ordinance oft e City of Key West, Florida, amending the City's Comprehensive Plan, adding Objective 1-1.17 and associated policiesto Chapter 1, "Future Land Use Element"; Objective 1-1.17 shall be known as the"Workforce-Affordable a 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 c severe ility; providing for repeal of inconsistent provisions; providing for inclusion into t e City of Key West Comprehensive 1 d providing for an effective date. 0 ACTION STATEMENT: "'- e purpose of this ordinance is to amend 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 knowne "Workforce-Affordable ous° tiative$' providing for an additional 300 affordable allocations to an allocation pool to be identified as the "Affordable-Early vacuation co fool." CD -------_ 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 y 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.4085 REOUEST: The proposed text amendment to the Comprehensive Plan is as follows*: .2 OBJECTIVE 1-1.17: WORKFORCE-AFFORDABLE HOUSING INITIATIVE. To 0 support the City of Key West's workforce by alleviating constraints on affordable housimy, the City shall participate in the Workforce-Affordable Housing,Initiative, as aLiproved d L),the June 13,2018 meeting oft e Florida Administration Commission. The Workforce-Af for dablc Housin InitiativLMdll require new construction that.p ci)ates to commit to evacuating; tenants in the Phase I clearance window of evacuation. The City, thereby. shall establish a new limijod�catqr�or to be known as the "Affordable - Early Evacuation Pool" which will provide 300 workforce- affordablebuilding permit allocations for the Workforce-Affordable Housing Initiative, as well as anv additional allocations which mav be authorized by the Florida Administration Commission or transferred to Key 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 Muirements associated with the EarlyEvaguation.Affordable allocations. The Cftv of Kev West 0 shall ensure adherence to these requirements throuUli iMplementation of the policies of this W 2 objective. 0 Poliev 1-1.17.1: Distribution of Workforce-Affordable Housi 0ng Allocations. or ?: Affordable ousin-, allocations shall be available for allocation on a first-come first-served basis and distributed at any time following, de guate gghligMfice , roce es and hegrim ) dur 12 suant to --L_ _� j. Chapter 108 of the City's Land Development Regulations. In the event applications received U) u exceed the allocations authorized herein,the cgm I )plications shall be ranked in accordance j etipg ate with the BPAS rankin4-, procedures in.Qh=a.ter 108. Section 997 (c). CO CD Policy 1-1.17.2: Specific Standa ds and Reguirements for Workforce-Affordable Housing. Affordable-Early Evacuation residential its built under this program shall: 0 a. be multiple-familv structures: b. be rental units; g ....require, at a minimum, adherence to the latest edition of the Florida Building Code as published by the Florida BuildLnc, Commission-, 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,- E f. incop2orate resilient design principles into the overall site design: 9. ensure accessibility jqSm ployi-nent cent ers,and amenities, h. reouire deed-restrictions ensuring: .......... ------- Packet Pg.4086 (i)_ the property remains workforce-affordable housipg �e its Jiil_ ten ants evacuate during the Phase I evacuation 12eriod; (iii) rental agree ments contain a separate disclosure-MRi6n,,tenants to ggkg owls dge that failure to adhere to the evacuation.,rest uire ment could result in severe penalties,,inel�udin -eviction, to the resident: 0 0 Poliev 1-1.17.3: Evacuation extigptions. Persons lLvjLgin workforce-affordable housing_who are exempt from evacuation requirements of Policy 1-1.17.2.h.(ii) include first responders correctional officers,healthcare professionals, or other first-responder workers reguired to remain in the lower keys during an emerggncv evacuation,provided the personclai nggjqm�tion under this policy has faithfully certified their status wit h,props nv manage ment. Policy 1-1.17.4: ADA Compliance. All workforce-affordable housin,(), developments must demonstrate comL)Iiance with all_Nplicable_federal standards for accessibility for-p_ersons with disabilities. Poligy 1-1.17.5: Evaluation apd Report. ,The City of Ke West shall ide the state land pI anning agency with an annual repo A on the progrm- �im 1�ementation of the Workforce- Affordable Housiu 1nitiative. Reported information shall include documentation oft e number 0 of workforce-affordable is built, occuangy rates, and compliance with the re airs ant to 2 0 evacuate the units in the Phase I evacuation. 4- 0 *Coding:Added language is underlined; deleted language is stFmGk4ks9vSh at first reading. U) Citv Actions: co T- Planning Board: October 18,2018 (approved) (01 City Commission: November 20,2018 (first reading) DEO (ORC—Objections, Recommendation,and Comments): TBA 0 City Commission: March 5,2019 (second reading) Planning Staff Analysis: The purpose of Chapter 90, Article VI, Division 3 of the Land Development Regulations (the "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 E necessary adjustments in light of changed conditions. In determining whether to grant a requested amendment, the City Commission shall consider, in addition to the factors set forth in this subdivision, the consistency of the proposed amendment with the intent of the Comprehensive Plan. ----------- ......................... ... -------- .......... FPacket Pg.4087 S.2.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. 2 b. Financial Impact: There will be no cost to the City if this request is denied. Recommendation: As per Resolution 2018-55, the Planning Board recommends the approval of the text amendment to the Comprehensive Plan. co CD z �n�. _.... - _�.�.w,�e __ ..m.._ .._.,,. .... a.dee................... ... Packet Pg.4088 S.2.i ��,'�0 Search this site... t a')? IIy Reemployment Assistance Business Growth Labor Market Community Planning, V Service Center &Partnerships Information Development&Services O PressReleases Gov,Scott Directs DEO to EnhanceIor f rc Housing in the FloridaKeys r „ rI' r,t #u'I?� ,I'a , r - Q I` ,. ,,i i i,�,G u .t➢ ..� ,;I u„ �t "i' I"2 1 f>. I'; J i .., t,, ,t.. (� W n to Reemployment Business Grown,9 Labor Market Community Planning V9crkforce Basra! About Us Name Cal Assistance Service Partnerships Information € Development A Services Resources Center G 2017 State of Florida Deparbnent of Economic frr 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 Packet Pg.4089 S.2.i City of Key West, FL City Hall - 1300 White Street Key West FL 33040 -, Action Minutes - Final f� Planning Board 0 Thursday,October 18,2018 6:00 PM City Hall N ADA Assistance: It is the policy of the City of Key West to comply with all requirements of the Americans with Disabilities Act(ADA). Please call the TTY number 1-800-955-8771 or for voice 1-800-955-8770 or the ADA Coordinator at 305-809-3811 at least five business days in advance for sign language interpreters,assistive listening devices, or materials in accessible format. ALL VISUAL PRESENTATIONS FOR AGENDA ITEMS MUST BE RECEIVED(24) TWENTY-FOUR HOURS PRIOR TO THE MEETING. Call Meeting To Order 6:00 PM 0 Pledge of Allegiance to the Flag 2 0 4- Roll Call c Absent 1 - Pike r9 Present 6- Mr. Browning, Mr. Lloyd, Mr. Russo, Mr.Varela,Mr.Gilleran,and Chairman cJ Holland U Approval of AgendaCo , i Old Business 1 Variance-3228 Flagler Avenue- (RE#00069040-000000)-A request for a variance to the minimum side yard setback requirement in order to y construct eight residential units on property located within the Commercial Limited (CL)zoning district pursuant to the Land Development Regulations of the Code of Ordinances of the City of Key West, Florida. A motion was made by Mr.Lloyd,seconded by Mr.Russo,that the Board finds that all the standards set forth in code Section 90-395(A)have been met by the Applicant,that the Applicant has demonstrated a"Good Neighbor Policy"and that the Variance be Passed subject to the conditions set forth on the staff report.The motion carried by the following vote: Absent: 1 - Mr. Pike Yes: 6- Mr. Browning,Mr. Lloyd, Mr. Russo, Mr.Varela,Vice Chair Gilleran,and Chairman Holland City of Key Wes;FL Page t Packet Pg.4090 S.2.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 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 ca West, Florida. A motion was made by Mr.Lloyd,seconded by Mr.Russo,that the Board finds that Applicant's proposed conditional use demonstrates all the requirements of 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 c Ordinances of the City of Key West, Florida. CD r� A motion was made by Mr.Russo,seconded by Mr.Varela,that the Planning Resolution be Passed.The motion carried by the following vote: CJ No: 2- Mr. Browning, and Mr. Lloyd Absent: 1 - Mr. Pike 00 I Yes: 4- Mr. Russo, Mr.Varela,Vice Chair Gilleran,and Chairman Holland , 4 An After-the-Fact Variance-3302 Harriet Avenue-(RE# 00031440-000100)-A request for variances to maintain a 6 foot solid fence on the front of the property and a eight foot gate entry on the side of a 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 90-396(A)have been met by the Applicant,that the Applicant has demonstrated a"Good Neighbor Policy"and that the After the fact Variance be Passed subject to the conditions set forth on the staff report.The motion carried by the following vote. No: 1 - Chairman Holland Absent: 1 - Mr. Pike City of Key Wes;FL page 2 Packet Pg.4091 S.2.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 UseN 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 o a) Absent- 1 - Mr. Pike 2 0 4— Yes: 5- Mr. Browning, Mr. Russo, Mr.Varela,Vice Chair Cilleran,and Chairman Holland CD 6 Text Amendment of the Land Development Regulations-A Resolution of "'- the City of Key West Planning Boardrecommending an Ordinance to the 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 o 300 "Affordable-Early Ev cu ionPool" BPAS units; pursuant to Chapter , Article VI, Division 2; Providing for definitions, findings, purpose andintent, 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.4092 S.2.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. 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 Certificate of Occupancy for this development the project at 3228 Flagler Avenue must receive a Certificate of Occupancy.The motion carried by the following vote: Absent: 1 - Mr. Pike Yes: 6- Mr. Browning,Mr. Lloyd, Mr. Russo, Mr.Varela,Vice Chair Gilleran,and Chairman Holland 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 c 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 West. 0 A motion was made by Mr.Michael Browning,seconded by Mr.Michael CD Browning, that the Planning Resolution be Postponed to November 16.The motion passed by an unanimous vote. U 9 Variance-2800 Staples Avenue- (RE#00067000-000000)-A request for a variance to the maximum building coverage allowed in order to construct an accessory structure in the rear yard. The property is located 03 within the Single Family(SF)zoning district pursuant to the Land Development Regulations of the Code of Ordinances of the City of Key West, Florida. A motion was made by Mr.Lloyd,seconded by Mr.Russo,that the Board finds that all the standards set forth in code Section 90-395(A)have been met by the ur 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: ram. Absent: 1 - Mr. Pike Yes: 6- Mr. Browning, Mr. Lloyd, Mr. Russo,Mr.Varela,Vice Chair Gilleran,and Chairman Holland City of Key Wes4 FL Page 4 Packet Pg.4093 S.2.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 Historic Neighborhood Commercial -Truman/Simonton (HNC-1)zoning district pursuant to the Land Development Regulations of the Code of Ordinances of the City of Key West, Florida. A motion was made by Mr.Lloyd,seconded by Mr.Russo,that the Board finds that all the standards set forth in code Section 90-395(A)have been met by the Applicant,that the Applicant has demonstrated a"Good Neighbor Policy"and that the Variance be Passed subject to the conditions set forth on the staff report.The motion carried by the following vote: Absent: 1 - Mr. Pike Yes: 6- Mr. Browning, Mr. Lloyd, Mr. Russo, Mr.Varela,Vice Chair Gilleran,and Chairman Holland 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 c 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. CD A motion was made by Mr.Browning,seconded by Mr.Russo,that the Board finds that Applicant's proposed conditional use demonstrates all the requirements of the Code Section 122-62(C)have been met by the Applicant, 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: 03' Absent: 1 - Mr. Pike cgs Yes: 6- Mr. Browning, Mr. Lloyd, Mr. Russo, Mr.Varela,Vice Chair Gilleran,and r- 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.4094 S.2.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 0 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. .E 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 o merchandise display on property located on Lazy Way Lane, Unit G 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. CD A motion was made by Mr.Russo,seconded by Mr.Varela,that the Planning W Resolution be Passed.The motion carried by the following vote: Absent: 1 - Mr. Pike CJ Yes: 6- Mr. Browning, Mr. Lloyd, Mr. Russo, Mr.Varela,Vice Chair Gilleran,and Chairman Holland �- I Public Comment Reports Adjournment 9:09 PM City of Key Wes4 FL Page B Packet Pg.4095 s;iun uopenoena Apea Buisnoy aoaojMjoM 00£) OZ'0£'L s;iun oena Alaea aoao;MAOM 00£a4&uo suoi&oy A&unoo;o Aaewwn$g'xg:&uawLjoe&&y m rn v o19 a 0 a 0 - m 0 w � U uJ RY Y� d � = o o rn b - C n .t:. E Gf y 0 V E m Ni wl Y N t c Q Q N c9 c9 'C O 3NGf a�cO9 0X9 0 o N C.Nc�.00� w NE+C- -(DQ0 o Nga �S � 0 Eo 0 U 0 0 N c9 — 0 N wo >,O cu c9 � mm � a w Oui 0 c9mO 1 OC O o c9 N cc co 0 V C N m c9 N N T W C C N S Q'=O ? 'O O'cu C O U 0 � Vom Mo ° 0om0y �-0 Cr o o 0mw mm o o mo a 0 v00� 0 o N 0 O E O E m 0 0 0 0 EN CO m'O N 3 Q.Lp O C N •f0 c9 O-0 O 0 > d 0 E a ca ma a,c N E 0 0 E O pE O O C O C S"i d U O c 0 wp N 0)0 i3 w'O a o w cu `m x ''. 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NO.: 20-32 CITY OF MARATHON, FLORIDA, et al., Appel lee(s)/Respondent(s), 0 Upon consideration of Appellants' Motion for Review and Reversal 2 0 of Lower Tribunal's Denial of Motion to Stay Its Final Order and Motion for Stay of Final Order on Review, the Department of Economic Opportunity's final order N issued on December 23, 2020, is temporarily stayed pending further order of this Court. E Appellees are ordered to file a response within fifteen (15) days from the date of this Order to Appellants' Motion to Stay. LOGUE, HENDON and LOBREE, JJ., concur. S � 7 cc: Barton W. Smith Christopher B. Deem DEO Agency Clerk Packet Pg.4102 S.2.k George B. Wallace Nicola Jean Pappas Richard J. Grosso Roget V. Bryan Shawn D. Smith Hon. Susanne Van Wyk is N N Packet Pg.4103 S.2k E= FINAL ORDER NO. DEO-20-032 STATE OF FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY 0 r a 0 CECILIA MATTINO, M to Petitioner, y r Vs. DOAH CASE NO.: 18-625OGM o CITY OF MARATHON, FLORIDA, U M Respondent, 21 / M NAJA GIRARD, 0 Petitioner, 0 Vs. `o DOAH CASE NO.: 19-1526GM CITY OF KEY WEST, FLORIDA, y r Respondent, M CATHERINE BOSWORTH, r U as Petitioner, ®a 0 V5. 0- DOAH CASE NO.: 19-1839GM ISLAMORADA, VILLAGE OF ISLANDS,FLORIDA, 0 Respondent, U. Uj _. ..._. ...._ FINAL ORDER u r This matter was considered by the Division of Community Development within the Florida U Department of Economic Opportunity ("Department") following the receipt of a recommended 1 Packet Pg.4104 S.2k 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"). 0 r CL Background M Thito s is a proceeding to determine whether the City of Marathon ("Marathon") J y Comprehensive Plan Amendment 2018-01, adopted on October 23, 2018 ("Marathon Plan Amendment); City of Key West ("KeyWest") Comprehensive Plan end e t 19-06, adopted .2 r M on March 5, 2019 ("Key West Plan Amendments"); and Islamorada, Village of Islands g ("Islarnora a") Comprehensive Plan Amendment 19-03, adopted on April 4, 2019 ("Isla orada M Plan Amendment" (collectively"Plan Amendments") are"in compliance," as dcfined in section .y 0 163.318 (1)(b), Florida Statutes (2018).1 cs On November 26, 2018, Petitioner Cecilia Mattino, filed a petition for an administrative 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 the petition and the Recommended Order on Remand,that the Marathon Plan Amendment renders $ the City of Marathon Comprehensive Plan internally inconsistent, in violation of section M r 163.3177(2),Florida Statutes.Moreover,the Petitioners challenge the Marathon Plan Amendment ®a as not based on relevant and appropriate data and analysis. a On March 19,2019,Petitioner,Naja Girard, filed a Petition with the Division challenging the Key West Plan Amendment as violative of the Act on many of the same grounds. M LL On April 9, 2019, Petitioner, Catherine Bosworth, filed a Petition with the Division 0 LU challenging the Islamorada Plan Amendment as violative of the Act on many of the same grounds LU as the other Petitioners. U References to the Florida Statutes are to the 2018 version,which was in effect on the date the Plan Amendments were adopted. 2 Packet Pg.4T05 S.2k 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 r CL hearing on the Motion to Consolidate, the ALJ entered an Order of Consolidation on May 10, M to 2019. The consolidated cases were scheduled for final hearing on October 7 through 11, 2019; J however,the final hearing was continued and rescheduled to December 9 through 13, 2019. On April 24, 2020, the ALJ issued a recommended order, recommending the Department .0 r M issue a final order determining that the Plan Amendments are in compliance. On May 11, 2020, g 21 the Petitioners timely filed exceptions to the initial recommended order.On August 21,2020,after M the parties agreed, pursuant to Section 163.3184(5)(e)3., Florida Statutes, to an extension of time 0 for the Department to take final action, the Department granted in part Exception Number 17 of cs the Petitioners' initial exceptions,to the extent it raised the lack of findings of fact and conclusions 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 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 r substance track the exceptions previously raised,aside from Exception Number 17,which address ®a the additional findings of fact and conclusions of law included by the ALJ upon remand. a On November 7, 2020, the Petitioner's filed a "Motion for Conditional Stay Pending Appeal,"requesting that if the DEO finds the Plan Amendments"in compliance,"to stay the legal M LL effect of the Final Order upon its rendition. On November 12,2020, Respondent's filed a Motion 0 in Opposition. Respondent's argued that the pursuant to Rule 9.310(a) of the Florida Rules of Appellate Procedure,Petitioners could not stay the legal effect because the order had not yet been rendered. U r r 3 Packet Pg.4T06 S.2k 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 o .2 CL process shall go into effect pursuant to the state land planning agency's notice of intent. if timely M to challenged, an amendment does not become effective until the state land planning agency or the J Administration Commission enters a final order determining the adopted amendment to be in compliance." The Petitioners have not established that the Department has the jurisdiction to stay M the effective date of the comprehensive plan amendments, which the Legislature has g un ambiguously declared goes into effect upon issuance of a final order. M as However, if the Department does have jurisdiction, ruling on a motion to stay involves y 0 fact-finding. See MSQ Properties v. Florida Dept. of`Health &.Rehab. Services, 626 So. 2d 292, � cs 293 (Fla. 1 st DCA 1993) (`These determinations may require fact finding which is not a fimction 0 3 of this court.")-,see also Resolution Tr. Corp. v. Mayor&City Comn of City of'S. Miami, 633 So. 2d 1119, 1120 (Fla. 1st DCA 1994). The two factors relevant to the determination on whether to issue a stay are whether the movant has shown a likelihood of success on the merits and the likelihood of harm should a stay not be granted. See Perez v. Perez, 769 So.2d 389 (Fla. 3d DCA M r 1999).The Petitioners have failed to establish a stay is appropriate under either of the two factors. As to the likelihood of success on the merits, the Department has considered and rendered its a determination on the Petitioners' exceptions, which are discussed herein. As to the likelihood o harm, comprehensive planning is one part of the statutory scheme in place to effectuate land use M LL planning. Additional steps include the promulgation and review of local government land 0 LU 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 E Circuit Court. See generally, 1 3.3215, Fla. Stat, §380.05, Fla. Stat. The harms allegedly U r r 4 Packet Pg.4107 S.2k 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 o .2 a have failed to present sufficient evidence that a stay of the effectiveness of the Final Order is M to necessary. Accordingly, if the motion is reviewable by the Department, it is denied without J prejudice for the reasons set forth above. Role of the Deraartment o r M Petitioners' challenges were filed pursuant to sections 120.569, 120.57(1), and g 21 163.3184(5), Florida Statutes. The AU held a hearing and issued the Recommended Order on as Remand,recommending that the Department determine the Plan Amendments to be in compliance. y 0 Upon receipt of the Recommended Order on Remand, the Department may determine the 0 U Plan Amendments are in compliance and enter a final order to that effect, or determine that the 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. § 163.3184(5)(e),Fla. Stat. The Department has received a record consisting of copies of the parties' pleadings, the M r documentary evidence introduced at the final hearing, and a five-volume transcript of the ®a proceedings of the final hearing. The Department has reviewed the record and issues this Final a Order in accordance with sections 120.57(1)(k)-(1) and 163.3184(5)(e),Florida Statutes. If the Department rejects or modifies a conclusion of law or interpretation of an M LL administrative rule,then the Department must state with particularity its reasons for such rejection 0 or modification. § 120.57(1)(1), Fla. Stat. If the Department rejects or modifies a finding of fact, LU then the Department must state with particularity that the finding was not based on competent E substantial evidence or that the proceedings on which the finding was based did not comply with U r r 5 Packet Pg.4T08 S.2k 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 0 r CL ruling on each exception. The Department is not required to rule on an exception that does not M clearlyidentify the disputed portion of the Recommended Order on Remand b a Y p A y page number or J paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record. § 120.57(1)(k),Fla. Stat. ro M Standard of Review M g Findings of Fact 21 M Section 120.57(1)(1), Florida Statutes, prescribes that in its issuance of a final order, the 0 Department may not reject or modify the findings of fact of the ALJ "unless the agency first cs determines from a review of the entire record, and states with particularity in the order, that the 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 C a) competent if it is admissible under the pertinent legal rules of evidence. Scholastic Book Fairs, C 0 Inc. v. Unemplmt. App. Comm'n, 671 So. 2d 287, 289 n.3 (Fla. 5th DCA 1996). Evidence is M r substantial if there is "some (more than a mere iota or scintilla) real, material, pertinent, and relevant evidence(as distinguished from ethereal,metaphysical, speculative or merely theoretical a evidence or hypothetical possibilities)having definite probative value(that is, `tending to prove') as to each essential element" of the claim. Id. The Department is "not authorized to weigh the M C U. evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its 0 LU desired ultimate conclusion."Heifetz v. Dept of Bus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCA LU 1985). "If the ALYs findings of fact are supported by competent, substantial evidence,the agency C cannot reject them even to make alternate findings that are also supported by competent, U r r 6 Packet Pg.4T09 S.2k FINAL ORDER NO.DEO-20-032 substantial evidence."Lantz v. Smith, 106 So. 3d 518, 521 (Fla. 1st DCA 2013). The Department may reject findings of fact if the proceedings on which the findings were based did not comply .2 a with the essential requirements of law. See § 120.57(l)(1), Fla. Stat., and Dept. of Corrections v. -a° M to radle�y, 510 So.2d 1122, 1123 (Fla. 1 st DCA 1987). In this context,Florida's First District CourtJ of Appeal has characterized a failure"to comply with the essential requirements of the law" as "a procedural irregularity."Beckett v. Dep't of Fin, ,Servs., 982 So. 2d 94, 102 (Fla. 1st DCA 20 ) 0 M (ruling that the agency erred by concluding that the ALI had failed to comply with the essential g 21 requirements of the law "[b]ecause there has been no suggestion of a procedural irregularity"). M a Conclusions of Law y 0 Section 12 .57(1)(1), Florida Statutes, authorizes the Department o reject or modify a M cs 0 conclusion of law over which the agency has substantive jurisdiction. § 120.57(1)(1), Fla. tat., 0 3 Barfield v. Dept of Health, 805 So.2d 1008, 1010(Fla. lst DCA.2001). If the Department rejects or modifies any of the ALYs conclusions of law,then the Department must state with particularity its reasons for rejecting or modifying the conclusion, and must make a finding that its substituted E conclusion of law is as or more reasonable than that which was rejected or modified. § 120.57(1)(1), M r U Fla. Stat. The Department is not permitted to reject or modify a finding that is substantially one of fact simply by treating the finding as a legal conclusion, See Abrams v. ,Seminole Craty. BSc . Bd., 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. U. Stat. Rulings on Petitioners' Exce)tions to Recommended Order on Remand Lu (A) —Exception 1: Paragraphs 81,89,90,96,97, 102, and 199 E In Exception 1,Petitioners take exception to findings of fact and conclusions of law contained U r r 7 Packet Pg.4F071 S.2k FINAL ORDER NO.DEO-20-032 in paragraphs 81, 89, 90, 96,97, 102, and 199 of the Recommended Order on Remand because,as Petitioners argue,"the amendments clearly violate the unambiguous,plain language,24-hour limit o r a and express intent under the statute." �0 M U The Department finds there is competent substantial evidence in the record to support the J y ALFs Findings of Fact concerning the consistency of the Plan Amendments with the statutory C requirements for comprehensive plan amendments to be held "in compliance." (Trans. pg. 104 2 M Dec. 12, 2019) Additionally, the AU's findings of fact that the plan amendments are internally g 21 consistent with the existing provisions of the local governments' comprehensive plans is supported M as by competent substantial evidence. (Trans. pg. 122 Dec. 12, 2019; Trans. pg. 127 Dec. 12, 2019; y 0 Trans. pg. 222 Dec. 12, 2019; Trans pgs. 67-72 Dec. 13, 2019) To the extent the petitioners' cs 0 exception argues the referenced paragraphs are incorrect legal conclusions, the Department has 0 3 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 a) units, subject to the early evacuation provisions, does not as a matter of law cause the Plan a) E Amendments to be not"in compliance"as defined in section 163.3184, F.S. The early evacuation 1° r U requirements for the workforce affordable housing units are akin to the evacuation requirements ®a for mobile home inhabitants,military, and tourists,which are calculated in the 24 hours preceding 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 U. compliance as set forth in Section 163.3184, Florida Statutes,which provides as follows: 0 "In compliance" means consistent with the requirements of ss. 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, a' and 163.3248, with the appropriate strategic regional policy plan, C and with the principles for guiding development in designated areas of critical state concern and with part III of chapter 369, where U applicable. 8 Packet Pg.4F,71 S.2k FINAL ORDER NO.DEO-20-032 Exception 1 is DENIED. S (B)—Exception 2: Paragraphs 89,90,and 96 2 a 0 In Exception 2, Petitioners take exception to the findings of fact in paragraph 89, 90, and M to 96 of the Recommended Order on Remand as being both unsupported by competent substantial y r evidence and as alleged incorrect legal interpretations. C 0 The Department is not permitted to reject or modify a finding that is substantially one of U M fact simply by treating the finding as a legal conclusion.See Abrams,73 So.3d at 294. Paragraphs 21 89, 90, and 96, are properly classified as findings of fact and the exceptions are denied insofar as 0 as they challenge the findings of fact of the AU as a legal conclusion. Moreover,the determination 0 that evacuation of Phase I with the additional 1,300 units can be completed within the first 24 U 0 hours of a 48-hour evacuation scenario is nevertheless supported by competent and substantial evidence. Evidence is competent if it is admissible under the pertinent legal rules of evidence. y Scholastic Book Fairs, 671 So.2d at 290 n.3. Evidence is substantial if there is "some(more than C a mere iota or scintilla), real, material, pertinent, and relevant evidence . . . having definite 0 E M probative value (that is, 'tending to prove') as to each essential element" of the claim. Id. The U M respondents' witness,Mr. Garrett,testified that"outside of what statutorily is the 24 hours we've E 0 been discussing,there's still roughly six-and-a-half hours of capacity,if you will,within that first CL 24-hour evacuation period."(Trans.pg. 105 Dec. 12,2019) The petitioners'witness,Mr.Ogburn, 0 testified that he did not have a clear answer as to how requiring the affordable workforce housing LL residents to evacuate prior to the 24-hour time-period would impact the evacuation of the Keys. a' (Trans. pg. 79 Dec. 10, 2019) It is not the place of the Department to "weigh the evidence LU r C presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired U ultimate conclusion." Heifetz, 475 So. 2d at 1281. Therefore, so long as the AU's findings are 9 Packet Pg.4112 S.2k FINAL ORDER NO.DEO-20-032 supported by competent and substantial evidence, the agency may not reject them to make alternative findings supported by evidence. Lantz v. Smith, 16 So. 3d 518, 521 (Fla. 1st DCA .2 a 2013). Ultimately, the ALJ's findings of fact in paragraphs 89, 90, and 96 were supported by 0 to competent and substantial evidence. J y Exception 2 is DENIED. (C)—Exception 3: Paragraphs 88 and 197 •0 M U In Exception 3, Petitioners take exception to the ALJ's finding that Petitioners' evidence 21 concerning the Hurricane Evacuation Model were irrelevant to the plan amendments. Exception M as 3 requests the Department to forward this matter to the Administration Commission or remand y 0 this matter back to the ALJ with instructions to review the evidence and render findings as to a) U 0 whether the early evacuation deed restriction requirement is based upon professionally accepted 3 data and analysis. It is not the place of the Department to "weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion."Heifetz, 475 E So.2d at 1281.The Department may not reject and make alternative findings if the ALJ's findings M, r U are supported by competent and substantial evidence. Lantz, 16 So. 3d at 521. Exception 3 is ®a denied to the extent that it requests the Department to modify or reject findings by reweighing the CL evidence presented to the ALJ. The ALJ weighed the evidence,identifying in the Recommended 20 Order on Remand weight given to witnesses from both Petitioners and Respondents, and LL concluded that "Based upon the foregoing Findings of Fact, Petitioners did not prove the Plan LU Amendments are not supported by adequate data and analysis, or fail to react to professionally- >� LU r acceptable data in an appropriate way."The Petitioners argue the ALJ misconstrued their position E concerning the 2012 hurricane evacuation model,when,upon review,the ALJ is merely restating v r 10 Packet Pg.4113 S.2k 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 0 r CL otherwise finds that the ALJ's findings of fact on the issue related to the best available data M supporting the 24-hour evacuation clearance time cap as being supported by competent substantial a J evidence. y Exception 3 is DENIED. ro M (D)—Exception 4: Paragraph 88,footnote 19 g In Exception 4,Petitioners takes exception to the findings of fact in paragraph 88, footnote 19, of the Recommended Order on Remand as being unclear on, as Petitioners' allege, a 0 dispositive fact, inconsistent with other findings of fact, and unsupported by competent cs 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 C a) to "weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the $ C a) evidence to fit its desired ultimate conclusion."Heifetz,475 So. 2d at 1281. The Department may M r not reject and make alternative findings if the ALJ's findings are supported by competent and as ®a substantial evidence.Lantz, 16 So. 3d at 521. Exception 4 is denied to the extent that it requests a 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 on the issues related to the best U. available data supporting the consistency with the 24-hour evacuation clearance time cap as being supported by competent substantial evidence. The competent substantial evidence supports a conclusion that the 2012 TIME Model relied upon underlying assumptions and inputs,including 0 the bifurcation of certain individuals (mobile-home residents,military, tourists)into an initial 24 U r r 11 Packet Pg.4114 S.2k 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 r CL hour evacuation clearance time cap. M Exception 4 is DENIED. to (E)—Exception 5: Paragraph 191 y In Exception 5, the Petitioners take exception to the ALJ's legal conclusion that the 2012 .2 r M Hurricane Evacuation Memorandum of Agreement was not adopted by reference into the local g 21 governments' comprehensive plans and, therefore, not subject to part of the "in compliance" as challenge brought by the Petitioners pursuant to Section 163.3184, F.S. y 0 In particular the Petitioners take exception to the ALJ's conclusions of law in paragraph 191, cs wherein the AU essentially concluded the Memorandum of Agreement is not adopted by reference 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" 0 determination. The Petitioners take exception primarily to the legal conclusion that the 0 Memorandum of Agreement is not adopted by reference in the local governments' comprehensive M r plans. The Petitioners'have failed to provide a persuasive conclusion of law that the Memorandum ®a of Agreement is properly incorporated as set forth in Section 163.3177(1)(b),Florida Statutes. The e. Department has considered the matter and finds that the ALJ's conclusions of law in the paragraph cited in Exception 5 are reasonable, and the Department does not have any substitute conclusions M LL of law that are as or more reasonable than those of the AU in the paragraphs cited in Exception 5. 0 LU Exception 5 is DENIED. LU (F)—Exception 6: Paragraph 68 C In Exception 6,the petitioners take exception to the ALJ's Recommended Order on Remand U r r 12 Packet Pg.4115 S.2k 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 o CL as to whether the early evacuation deed restrictions will be effective. Essentially, the petitioners M t� take exception to the ALJ's Finding of Fact in paragraph 68 and the failure to issue additional J findings of fact. y Petitioners cite Moehle and Austin for the proposition that the"early evacuation deed"is a M conclusory statement unsupported by competent and substantial evidence. Yet the conclusory g 21 statements in each case are distinguishable from the case at bar. In Moehle, the designation of M a submerged land as medium density residential served no rational purpose, conflicted with cited y 0 Conservation objectives, and was unsupported by evidence concerning the values in providing cs water quality and habitat values. See Moehle v. City of Cocoa Beach, No. 96-5832 at T¶ 18-20 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 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 r U a natural resource on the Future Land Use Map.Austin v. City of Cocoa,ER FALR 89:0128 at¶¶ ®a 190,289(Admin. Comm. 1989). In contrast to the instant case,Moehle and Austin involve clearly a irrational decisions and direct and egregious conflicts between stated objectives and planned 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 0 LU by adequate data and analysis, or fail to react to professionally-acceptable data in an appropriate LU way." Petitioners did not prove beyond fair debate that the deed restriction and findings of the E Housing Initiative are not based on appropriate data and analysis or are not supported by U r r 13 Packet Pg.4116 S.2k 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 0 r CL 68 were based on competent substantial evidence in the record. (Trans. at 122 Dec. 12, 2012) M There is nothing clearly erroneous about the finding of facts simply because the Petitioner wishes a J to include more information.The ALJs findings of fact were not insufficient for the determination and Florida law and departmental policy was not incorrectly interpreted and applied. Charlotte .2 M County v. IMC Phosphates Co., 18 So. 3d 1089, 1093 (Fla. 2d DCA 2009). The Petitioners did M 21 not prove beyond fair debate that relevant data and analysis were not employed in considering the early evacuation deed restriction. The petitioners ask the Department to remand this back to the .y AU for additional findings, however, the issue of evacuation times was focal in the original hearing and the AU made findings of fact and conclusions of lain as to whether the plan 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 essential requirements of law. Exception 6 is DENIED. E r (G) —Exception 7: Paragraph 200 In Exception 7, Petitioner takes exceptions to the conclusion of law in paragraph 200 of the a Recommended Order on Remand as being both unsupported by competent substantial evidence and incorrect legal interpretations on the issue. The Petitioners claims that findings of fact 176 0 U. and 181 are not supported by competent substantial evidence, claiming that the amendments by 0 LU their terms do not require the new homes to be affordable housing for members of the workforce. LU Foremost,the Department is not permitted to reject or modify a finding that is substantially one of fact simply by treating the finding as a legal conclusion. See Abrams, 73 So. 3d at 294. � M r r Thus,the exceptions are denied insofar as they challenge the findings of fact of the AU as a legal 14 Packet Pg.4117 S.2k 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 0 r a conclusion." Heifetz, 475 So. 2d at 1281. The Department may not reject and make alternative M findings if the ALJ's findings are supported by competent and substantial evidence.Lantz, 16 So. J 3d at 521. In this case, while there is no specific definition of workforce affordable housing, the comprehensive plan points to the land development regulation,"which exist and have a structure o r M that fully understands what an affordable housing project is and how to implement it, so this just g become a part of it and affordable housing is absolutely defined within in a broader sense within the city's . . . Land Development Regulations." (Trans. pg. 99 Dec. 12, 2019). Additionally, the E a .y current building permit allocation systems already distinguish existing allocations on a basis of cs affordable and market rate.See Finding of Fact 33,Recommended Order on Remand. Exception 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 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 M r Department cannot support, and the Petitioners have failed to provide, a conclusion of law as U, reasonable as or more reasonable than that which the ALJ provided therein. a Exception 7 is DENIED. (H) —Exception 8: Paragraphs 68, 181, and 200 M U. In Exception 8, the petitioners take exception to Finding of Fact 68 and Conclusion of Law 181 and 200 as erroneous legal conclusions. LU The Department determines from the record that Finding of Fact 68 is not a conclusion of law as suggested by the petitioners. Additionally,paragraph 68 is supported by competent substantial U r r 15 Packet Pg.4118 S.2k FINAL ORDER NO.DEO-20-032 evidence and,therefore is upheld. (Trans. pgs. 87-89 Dec. 12, 2019) Petitioners argue against the legal conclusion that the Plan Amendments support affordable housing, one of the Principles for .2 a Guiding Development. Petitioner's legal conclusion is not as reasonable as or more reasonable -a° M to than the conclusion set forth by the AU in Paragraph 181 and 200. The Department also cannot J y support a legal conclusion as reasonable as or more reasonable than the ALJ's. Exception 8 is DENIED. •0 r M (I) —Exception 9: Paragraph 69 g 21 In Exception 9, the petitioners take exception to the finding of fact in paragraph 69 of the M as Recommended Order on Remand as not being supported by competent substantial evidence. y 0 Petitioners argue that finding of fact 69 is unsupported hearsay. The Finding of Fact is 0 U 0 supported by competent substantial evidence. (Trans. pgs. 137-38 Dec. 12, 2019) The 0 3 Department is not authorized to "weigh the evidence presented,judge credibility of 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 are supported E by competent and substantial evidence.Lantz, 16 So. 3d at 521. Competent substantial evidencc r U in the record supports the ALJ's finding of fact 69. (Trans. pg. 105 Dec. 12, 2019) Exception 9 ®a is denied to the extent that it requests the Department to modify or reject findings by reweighing CL the evidence presented to the ALJ.The Department otherwise finds that the ALJ's finding of fact on the issue relating to the Housing Initiatives compliance with the 24-hour window as being U. supported by competent substantial evidence. 0 Exception 9 is DENIED. (J) —Exception 10: Evidentiary Considerations E M In Exception 10,the petitioners take exception to the ALJ's treatment of offered depositions U r r Q 16 Packet Pg.4F971 S.2k FINAL ORDER NO.DEO-20-032 as uncorroborated hearsay as a departure from essential requirements of law and request the Department remand the cases back to the ALJ with instructions to consider and determine Don r a Maynard and Kathleen McKee's expert qualifications and to consider their testimony in order to M to make findings of fact relative to water quality issues raised in this proceeding. J The ALJ ruled that although the evidence was admissible, it constituted hearsay. The ALJ determined no non-hearsay evidence was offered to corroborate the depositions of Mr. Maynard M and Ms.McKee.To the extent the Petitioners request the Department substitute its legal conclusion g 21 concerning the evidentiary issue in place of the ALJ, the Department does not have substantive M as jurisdiction to do so. Furthermore,the Department has not determined that the proceedings upon y 0 which the ALJ's findings and conclusions cited in Exception 10 departed from the essential cs 0 requirements of law. 0 3 Exception 10 is DENIED. (I)—Exception 11: Evidentiary Considerations In Exception 11, the petitioners continue their exception to the ALJ's evidentiary E determination concerning the weight to be given to the offered deposition testimony of Mr. r U Maynard and Ms. McKee. The petitioners specifically take exception to the ALJ's determination ®a that the deposition testimony was not corroborated. a The ALJ ruled that although the evidence was admissible, it constituted hearsay. The ALJ determined no non-hearsay evidence was offered to corroborate the depositions of Mr. Maynard U. and Ms.McKee.To the extent the Petitioners request the Department substitute its legal conclusion 0 LU 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 E findings and conclusions cited in Exception 11 departed from the essential requirements of law. U r r 17 Packet Pg.4120 S.2k FINAL ORDER NO.DEO-20-032 Exception 11 is DENIED. (L)—Exception 12: Paragraphs 107, 111, 114 .2 a In Exception 12, the petitioners take exception to Findings of Fact 107, 111, and 114 -a° M to because they allege the ALJ failed to address water quality standards set forth in prior agency J y action and because they allege the ALJ erroneously refused to consider Petitioner's water quality C expert witness depositions. .0 r M The ALJ's consideration of the Petitioner's water quality expert witness depositions has g 21 previously been discussed in Exception 10 and 11 above, and is likewise, upheld in response to M as Exception 12. The findings of fact contested in Exception 12 are supported by competent y 0 substantial evidence. (See Paragraphs M— O herein) To the extent Exception 12 argues these cs 0 paragraphs include erroneous legal conclusions the Department has reviewed the Recommended 0 3 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 a) requirements for a comprehensive plan amendment to be "in compliance" as set forth in section 0 E 163.3184,Florida Statutes. M r U Exception 12 is DENIED. ®a (M)—Exception 13: Paragraph 115 a In Exception 13, Petitioner takes exception to the finding of fact in paragraph 115 of the Recommended Order on Remand as not being supported by competent substantial evidence. •. Specifically, Petitioner claims that the ALJs refusal to consider the SHORE station data is 0 material error, claiming that SHORE data is "undisputedly" a subset of nearshore water. Pet. Except. Rec. Order at¶ 121 C E The Department has considered the matter and finds that the findings of fact in paragraph U r r Q 18 Packet Pg.q171 S.2k FINAL ORDER NO. DEO-20-032 115 were based on competent substantial evidence in the record. (Pet. Exh. 8) (Trans. pgs. 74-80 Dec. 11, 2019) The Department is not authorized to "weigh the evidence presented, judge .2 a credibility of witnesses,or otherwise interpret the evidence to fit its desired ultimate conclusion." -a° M to Heifetz, 475 So. 2d at 1281. The Department may not reject and make alternative findings if the J y ALFs findings are supported by competent and substantial evidence. Lantz, 16 So. 3d at 521. C Exception 13 is denied to the extent that it requests the Department to modify or reject findings by reweighing the evidence presented to the ALJ. Further, the proceedings upon which the g 0 21 findings were made complied with essential requirements of law. M as Exception 13 is DENIED y 0 (N)—Exception 14: Paragraph 107 cs In Exception 14, Petitioner takes exception to the finding of fact in paragraph 107 of the 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 C a) 107 were based on competent substantial evidence in the record. (Pet. Exh. 2) There is nothing C 0 clearly erroneous about the finding of fact simply because the Petitioner wishes to include more M r information. There is competent substantial evidence in the record to support the ALFs finding of fact in paragraph 107. Further,the proceedings upon which the findings were made complied with a essential requirements of law. Exception 14 is DENIED 0 C LL (0)—Exception 15: Paragraph 111 LU In Exception 15, Petitioner takes exception to the finding of fact in paragraph I I I of the LU Recommended Order on Remand as not being supported by competent substantial evidence. 0 The Department has considered the matter and finds that the findings of fact in paragraph U r r 107 were based on competent substantial evidence in the record. (Pet. Exh. 9) The Petitioners 19 Packet Pg.4 2 S.2k FINAL ORDER NO.DEO-20-032 contend that two years of improvement do not constitute a trend.There is nothing clearly erroneous about the finding of fact simply because the Petitioner disagree on what constitutes an o .2 a improvement. There is competent substantial evidence in the record to support the ALJ's finding 0 to of fact in paragraph 111. The Department denies Exception 15 to the extent Petitioner request that J y r Department reweigh evidence or judge credibility of witnesses. See Heifetz 475 So. 2d at 1281. C Further,the proceedings upon which the findings were made complied with essential requirements U of law. g 0) 21 Exception No. 15 is DENIED M as (P)—Exception No. 16: Paragraph 114 0 In Exception 16, Petitioner takes exception to the finding of fact in paragraph 114 of the cs Recommended Order on Remand as not being supported by competent substantial evidence. 0 3 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 0 contend that the ALJ's use of"many" to refer to half of the median nutrient levels meeting EPA 0 targets is erroneous. There is nothing clearly erroneous about the finding of fact based simple r U because Petitioners disagree with the ALJ's choice of wording. There is competent substantial evidence in the record to support the ALJ's finding of fact in paragraph 114. Further, the a proceedings upon which the findings were made complied with essential requirements of law. Exception 16 is DENIED M '. (Q)—Exception 17: Paragraphs 164 through 171 and 178 through 181 0 In Exception 17, the petitioners take exception to the ALJ's findings of fact set forth in LU paragraphs 164 through 171 and 178 through 181 of the Recommended Order on Remand. These C E paragraphs find the Plan Amendments establish meaningful and predictable standards for the use U r r and development of land. The Petitioners' take exception to the ALJ's findings that the Plan 20 Packet Pg.4123 S.2k 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, 0 r a incorporate sustainability and resilient design principles, providing for preservation of the units M to for workforce, and ensuring compliance with early evacuation requirements. Competent substantial evidence,in the form of testimony from the Respondents'witnesses, established that the Plan Amendments establish the necessary direction to provide meaningful and .0 r M predictable standards for the development of the land. (Trans.pgs. 96-97, 99, 198 Dec. 12, 2019); g 21 (Trans. pg. 70 Dec. 13, 2019) The ALJ's conclusion that not all terms in a comprehensive plan M as need to be defined is reasonable and the Department cannot substitute a more reasonable y 0 conclusion. Where the terms are undefined the plain language prevails. Additionally, the local cs governments' regulatory schemes, including comprehensive plan and land development 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 lacking in clarity is not as reasonable a conclusion as that set forth by the ALJ. Exception 17 is DENIED M r (R)—Exception 18: Paragraph 61 and 62 ®a In Exception 18,Petitioner takes exception to the finding of fact in paragraph 61 and 62 of a the Recommended Order on Remand as not being supported by competent substantial evidence. The Petitioner excepts to the finding that 400 units of affordable housing were destroyed M LL during Hurricane Irma. Yet, in pertinent part,Mr. Garrett testified that the: 0 City of Marathon recognized that it--because of the impacts of Hurricane Irma it had a significant issue probably with its affordable housing. . . In fact,there was an affordable housing issue. The storm itself destroyed an estimated 400 homes, including trailers, permanent RVs, as we describe them, and ground-level homes, so we knew that we would have issues with maintaining our Workforce. r 21 Packet Pg.4 4 S.2k FINAL ORDER NO.DEO-20-032 (Trans. pgs. 77-78 Dec. 12, 2019). The transcript record cited by the Petitioner references that there was no specific analysis for regarding damage to all housing and does not demonstrate that o r e. the ALJs finding of fact was clearly erroneous. (Trans.pgs. 195-96 Dec. 12, 2019). 0 to The Department is "not authorized to weigh the evidence presented,judge credibility of J y witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion."Heifetz, 475 C So.2d at 1281.Exception 18 is denied to the extent Petitioner requests that the Department reweigh evidence to modify or reject the ALJ's findings in paragraphs 61 and 62. The findings of fact g 0) 21 challenged in Exception 18 were otherwise based upon competent substantial evidence. (Trans. M as pg. 107 Dec. 9,2019); (Trans.pgs. 77-78 Dec. 12, 2019); Trans.pgs. 195-96 Dec. 12,2019). y 0 Exception 18 is DENIED cs 0 (S)—Exception 19: Evidentiary Issues 0 3 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 0 objection to exhibits relied upon by Ms. Jetton as hearsay. The ALJ admitted the exhibits into the 0 E record but given the scope of Ms. Jetton's expertise,gave the exhibits the appropriate weight. The M, r U Department is not authorized to "weigh the evidence presented,judge credibility of witnesses, or ®a otherwise interpret the evidence to fit its desired ultimate conclusion."Heifetz,475 So.2d at 1281. CL The ALJ's determination concerning the evidence presented at the hearing, such as weighing $ testimony and determining the weight and amount of supportive evidence is solely within the LL province of the ALJ as the finder of fact. The ALJ's determinations concerning Ms. Jetton's Lu expertise are supported by competent substantial evidence from her testimony. The Department LU is unable to reweigh such competent substantial evidence or make its own judgment as to the a) E credibility of witnesses.See Heifetz, 475 So.2d at 1281-1283. Exception 19 is denied to the extent r 22 Packet Pg.4125 S.2k FINAL ORDER NO.DEO-20-032 that it requests the Department to modify or reject findings by reweighing the evidence presented to the ALJ.Additionally,the Department denies Exception 19 because the proceedings upon which .2 CL the findings were made complied with essential requirements of law. M t� Exception 19 is DENIED J y (T)—Exception 20: Appellate Standing In Exception 20, the petitioners take exception to the lack of findings of fact related to whether the petitioners were "adversely affected" by the plan amendments for purposes of 21 conveying appellate standing. M a Petitioner states that the ALJ made no specific findings that the Appellants would be 0 adversely affected, arguing that findings made were inexplicit and ambiguous. The Petitioner's cite Martin County for the proposition that a showing of standing must be made in the 0 3 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 findings in this regard," this refers to the citation of specific facts to rebut the Sierra Club E requirement for interest groups to provide facts concerning an individually affected member to r confer standing. Martin County Conservation All. v. Martin County, 73 So. 3d 856, 862 (Fla. 1st ®a DCA 2011)In contrast to the case at bar,Martin County involved appellants who filed a"meritless 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 LL conclusion that Appellants had standing to appeal."Id. at 864, 65. 0 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 on E Remand at IT 2-9. There is nothing clearly erroneous about the findings of fact simply because a r 23 Packet Pg.4 6 S.2k FINAL ORDER NO.DEO-20-032 the Petitioner wishes to include more definite terms. Further, the proceedings upon which the findings were made complied with essential requirements of law. o .2 e. 0 Exception No. 20 is DENIED 0 to Remainder of the Recommended Order on Remand J y r The Department has reviewed the remainder of the Recommended Order on Remand and concludes that all findings of fact therein were based on competent substantial evidence in the M U record. The Department finds that the proceedings on which the findings of fact were based 21 complied with the essential requirements of law. M as The Department has reviewed the ALYs conclusions of law and finds that all conclusions 0 M of law within the Department's substantive jurisdiction are reasonable. The Department does not a) U 0 have any substitute conclusions of law that would be as or more reasonable than the AU's o 3 conclusions of law. y ORDER Based on the foregoing, the Department determines that the Plan Amendments are "in E compliance," as defined in section 163.3184(1)(b), Florida Statutes. The Department adopts the U Recommended Order on Remand, as the Department's Final Order. ®a 0 M e. Dated this 93 day of December,2020. 20 �X LU )iho Rubio,Director Division of Community Development >i LU Florida Department of Economic r Opportunity M U r r 24 Packet Pg.4127 S.2k FINAL ORDER NO. DEO-20-032 NOTICE OF RIGHT TO JUDICIAL REVIEW s THIS FINAL ORDER CONSTITUTES FINAL AGENCY ACTION UNDER CHAPTER 120, 2 FLORIDA STATUTES. A PARTY WHO IS ADVERSELY AFFECTED BY FINAL AGENCY 0 ACTION IS ENTITLED TO JUDICIAL REVIEW IN ACCORDANCE WITH SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(B)(1)(C)AND 9.110. y r TO INITIATE JUDICIAL REVIEW OF THIS FINAL AGENCY ACTION, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 107 EAST 2 MADISON STREET,CALDWELL BUILDING,MSC 110,TALLAHASSEE,FLORIDA 32399- 4128, AGENCY.CLERK@DEO.MYFLORIDA.COM, WITHIN THIRTY (30) CALENDAR g DAYS AFTER THE DATE OF THE FINAL AGENCY ACTION. A DOCUMENT IS FILED WITH THE AGENCY CLERK WHEN IT IS RECEIVED BY THE AGENCY CLERK. THE21 NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(A). A COPY OF THE NOTICE OF E APPEAL MUST ALSO BE FILED WITH THE APPROPRIATE DISTRICT COURT OF 0 APPEAL. THE NOTICE OF APPEAL MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22,FLORIDA STATUTES. 2 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.4 8 S.2k FINAL ORDER NO.DEO-20-032 CERTIFICATE OF FILING AND SERVICE 0 I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with CL 0 the undersigned Agency Clerk, and that true and correct copies have been furnished to the following persons by the methods indicted this,`, ') "Aday of December,2020. y r �r .0 Ages , `lerk g Florida Department of Economic Opportunity 21 107 East Madison Street,MSC 110 M Tallahassee, FL 32399-4128 ByU_.S Mail The Honorable Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee,Florida 32399-3060 y r Bar U.S. and Electronic Mail: Roget V. Bryan, Esquire Islamorada,Village of Islands 86800 Overseas Highway Islarnorada, Florida 330336 roget.bryan@islamorada.fl.us a Richard J. Grosso, Esquire Richard Grosso, P.A. 6511 Nova Drive, Mail Box 300 Davie,Florida 33317 grosso.richard@yahoo.com U. LU Sarah M. Hayter, Esquire Shai Ozery, Esquire >� LU Robert Hartsell, P.A. 61 Northeast I'Street, Suite C � Pompano Beach,FL 33060 r 26 Packet Pg.4 971 S.2k FINAL ORDER NO.DEO-20-032 Christopher B. Deem,Esquire o Nicola J. Pappas,EsquireCL Barton William Smith, Esquire -a° Law Firm of Smith Hawks, PL 138 Simonton Street J Key West, Florida 33040 y r nikki@smitawks.com 0 r Shawn D. Smith, Esquire George B.Wallace,Esquire g City of Key West, City Attorney's Office 21 1300 White Street M Post Office Box 1409 Key West,Florida 33040 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.4T30 S.2k STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS .2 a 0 CECELIA MATTINO, J Petitioner, y r vs. Case No. 18-625OGM 0 r M CITY OF MARATHON,FLORIDA, M g Respondent. NAJA GIRARD, .y Petitioner, 0 cs VS. Case No. 19-1526GM CITY OF MARATHON,FLORIDA, Respondent. y CATHERINE BSOSWORTH, E E Petitioner, M r VS. Case No. 19-1839GM U a CITY OF MARATHON, FLORIDA, a Respondent. / 20 M RECOMMENDED ORDER ON REMAND U. A duly-noticed final hearing was held in this matter in Marathon, Florida, LU on December 9 through 13, 2019, before Suzanne Van Wyk, an Uj Administrative Law Judge assigned by the Division of Administrative Hearings. U r r Q Exhibit"N' Packet Pg.4131 S.2k APPEARANCES For Petitioners: Richard J. Grosso, Esquire Richard Grosso, P.A. CL 6511 Nova Drive, Mail Box 300 0 Davie, Florida 33317 J Sarah Hayter, Esquire y r Shai Ozery, Esquire Robert Hartsell, P.A. 61 Northeast 1st Street, Suite C .2 M Pompano Beach, FL 33060 M g For Respondents City of Marathon; and Islamorada, Village of Islands, Florida : M as Nicole Pappas, Esquire Barton Smith, Esquire 0 Smith Hawks, PL 138 Simonton Street `0 Key West, Florida 33040 0 3 For Respondent, City of Key West: George Wallace, Esquire City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 Key West, Florida 33040 r U as STATEMENT OF THE ISSUE 0 Whether City of Marathon("Marathon") Comprehensive Plan AmendmentCL 2018-01, adopted on October 23, 2018 (the "Marathon Plan Amendment"); City of Key West ("Key West") Comprehensive Plan Amendment 19-06, 0 adopted on April 4, 2019 (the "Key West Plan Amendment"); and Islamorada, U. Village of Islands ("Islamorada") Comprehensive Plan Amendment 19-03, Lu adopted on March 5, 2019 (the "Islamorada Plan Amendment") (collectively, LU r U r r 2 Exhibit"A" Packet Pg.4T32 S.2k the "Plan Amendments"), are "in compliance," as that term is defined in section 163.3184(1)(b), Florida Statutes (2019).1 . 0 M PRELIMINARY STATEMENT J On November 26, 2018, Petitioner, Cecilia Mattino, filed a Petition with y r 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 n g Comprehensive Plan (the "Marathon Plan"), among other allegations, in 21 violation of the Community Planning Act, chapter 163, part II, Florida as Statutes ("the Act"). Ms. Mattino's petition was assigned to the undersigned n as Case No. 18-6250. cs 0 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 E On April 9, 2019, Petitioner, Catherine Bosworth, filed a Petition with the r Division challenging the Islamorada Plan Amendment as violative of the Act on many of the same grounds as the other Petitioners. Ms. Bosworth's Petition was assigned to Administrative Law Judge Francine Ffolkes as CaseCL No. 19-1839. That case was transferred to the undersigned on April 22, 2019. 20 M Petitioners filed an Amended Joint Motion to Consolidate ("the Motion") U. III the three cases, to which Respondents, Marathon and Islamorada, filed responses in opposition. Following a telephonic hearing on the Motion, the undersigned entered an Order of Consolidation on May 10, 2019. E _. U 1 Except as otherwise noted, all references to the Florida Statutes are to the 2018 version, which was in effect when the Plan Amendments were adopted. 3 Exhibit"A" Packet Pg.4133 S.2k The consolidated cases were scheduled for final hearing on October 7 through 11, 2019; however, due to the undersigned's family medical .2 CL emergency, the final hearing was continued and rescheduled to December 9 M through 13, 2019. J y r The final hearing commenced as rescheduled in Marathon, Florida. Petitioners testified on their own behalves, and offered the testimony of: .0 r M Rebecca Jetton, accepted as an expert in comprehensive planning and U g planning in the Florida Keys; Martin Senterfitt, the Monroe County Director 21 of Emergency Management; and Richard F. Ogburn, accepted as an expert in M as comprehensive planning. Petitioners introduced the following Exhibits which .y 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, o 0 118, 127 through 129, 131, 139 (appendix 1C), 140, 147, 151, 158, 188, 189, 3 221, 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 M r Wright, Key West's former planning director; each of whom is accepted as an U as expert in comprehensive planning; Michael Alfieri, accepted as an expert in ®a 6 hydrogeology and karstology; William Precht, accepted as an expert in CL marine ecology; and Joaquin Vargas, accepted as an expert in transportation planning. M LL Respondents introduced Exhibits 1 through 17, 20 through 66, 68 through 83, 85 through 131, 133, and 135 through 153, which were admitted in LU evidence. E U r r 4 Exhibit"A' Packet Pg.4134 S.2k The parties received the five-volume Transcript of the final hearing on February 3, 2020,2 and on February 6, 2020, Petitioners requested an o .2 CL extension of time to file proposed recommended orders by March 13, 2020, M which was granted. The parties' Proposed Recommended Orders were timely filed and have been carefully considered by the undersigned in the y r preparation of this Recommended Order. C 0 r M Evidentiary-Considerations M g Petitioners sought to introduce the deposition testimony of two additional 0) 21 witnesses: Kathleen McKee and Donald Maynard. While the deposition a transcripts were admitted, they constitute hearsay for which no exception y under either section 90.803 or 90.804, Florida Statutes, applies. Section �° 90.803(22), which provides an exception from hearsay for former testimony 0 given in a deposition taken in the course of the same proceeding, if the party o 3 against whom the deposition is offered had the same motive to develop the testimony, has been declared unconstitutional. See Grabau v. Dept of Health, y r 816 So. 2d 701, 709 (Fla. 1st DCA 2002). Further, Petitioners were unable to a) make the required showing of unavailability in order to introduce the former C E testimony of the two witnesses under the hearsay exception provided in M r section 90.804(2). Petitioners offered no non-hearsay evidence to corroborate the hearsay depositions of Ms. McKee and Mr. Maynard. 6 a Respondents objected to the introduction of a number of exhibits relied upon by Petitioners' expert planning witness, Ms. Jetton, in formulating her 0 opinions regarding whether shallow injection wells contribute to nearshore LL water pollution. The articles were written by marine scientists, biologists, LU microbiologists, chemists, and other experts, and published in a variety of LU scientific journals. An expert may rely upon facts or data of which the expert a) E 2 The official Transcript was not filed with the Division until March 16, 2020, although the parties provided the undersigned with a copy prior to that date. 5 Exhibit"A" Packet Pg.4 35 S.2k 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 .2 opinion. See § 90.704, Fla. Stat. The expert may even rely upon inadmissible o evidence (i.e., hearsay) if the evidence is of a type "reasonably relied upon by M experts in the subject to support the opinions expressed[.]"I . In this case, J y Respondents' objections are well-taken. Ms. Jetton is an expert in comprehensive planning, very experienced and well-versed in the planning 0 r history of the Keys, particularly as a former e ployee of the state agency M with oversight over planning and development in the Keys, However, 0) 21 s. Jetton is riot a biologist, chemist, marine scientist, or other scientific M expert who would typically rely upon the studies and publications in .y scientific journals for formulating an opinion on, for example, "the fate and transport of sewage in the subsurface environment and the potential for U 0 contamination of marine surface aters[J"3 0 3 The documents on which Ms. Jetton relied in formulating her expert y r planning opinions were admitted, but those documents remain uncorroborated hearsay. The undersigned has given the appropriate weight to Ms. Jetton's testimony on these issues. M r U as Remand The undersigned's Recommended Order was entered on April 24, 2020, CL and forwarded to the Department of Economic Opportunity ("DEO") for issuance of a final order. Following the consideration of the parties' 0 M Exceptions to the Recommended Order, DEO remanded these cases to the r_ LL undersigned for the "limited purposes of issuing Findings of Fact and UJI Conclusions of Law" on the issue of"whether the plan amendments establish r 3 John H.Paul, Viral Tracer Studies Indicate Contamination of Marine Waters by Sewage E Disposal Practices in Key Largo,Florida,Applied and Envtl.Microbiology,2230-34(June U 1995). Q 6 Exhibit"A" Packet Pg.4T36 S.2k meaningful and predictable standards as required by section 163.3177(1), Florida Statutes." o .2 a FINDINGS OF FACT -a° M The Parties and Standing J 1. Ms. Mattino resides in Marathon with her daughter and her fiance. She y r submitted written objections to Marathon regarding the Marathon Plan C Amendment prior to the October 23, 2018 public hearing at which Marathon adopted the Plan Amendment. U g 2. Ms. Mattino's daughter is severely disabled, requires specialized 21 equipment (including a specialized wheelchair), and requires full-time care, a for which Ms. Mattino relies upon a variety of caretakers. Her daughter has 0 to be transported in a specially-equipped vehicle to accommodate the wheelchair and other equipment. o 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. C 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. Prolonged car rides are also stressful for Ms. Mattino, who has high blood r pressure and has had several heart attacks. 5. Ms. Mattino evacuated for Hurricane Irma and testified that she encountered heavy traffic, which was made more stressful by the need to stopCL approximately every two hours to attend to her daughter's medical needs. 20 6. Ms. Mattino claims that if the Plan Amendments increase the amount M C of time it takes her to evacuate the Florida Keys before a hurricane, it would LL LU cause additional stress and would put her and her daughter's health at risk. a) Ms. Mattino maintains these concerns are unique to her and her family and LU that emergency evacuation is more difficult and dangerous for her and her a) family than it is for the general public. U r r 7 Exhibit"A" Packet Pg.4T37 S.2k 7. Ms. Bosworth resides in Islamorada with her daughter, son-in-law, and their two children. She submitted written objections to the Islamorada Plan .2 CL Amendment prior to the April 4, 2019 public hearing at which Islamorada M adopted the Plan Amendment. U 8. Ms. Bosworth previously evacuated for Hurricanes Andrew and Irma, y r 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 rao M hurricane shutters. Securing her boat and putting up her shutters requires M the assistance of her son-in-law. Ms. Bosworth believes her circumstances are 0) 21 unique because her son-in-law is a fire fighter and paramedic in Parkland, M as Florida, and is not always available to help her prepare her property for a .y hurricane. �° 9. Ms. Bosworth claims that if traffic congestion increases or worsens as a 0 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 y r 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. M r 10. Ms. Girard is a resident of Key West. She submitted oral or written U as objections to the Key West Plan Amendment prior to the March 5, 2019 6 public hearing at which Key West adopted the Plan Amendment. CL 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 M very last minute to evacuate regardless of when an evacuation advisory was LL issued by the Monroe County Emergency Management Office. 12. Ms. Girard did not evacuate for Hurricane Irma or any other hurricane since moving to a site-built home in Key West in 2007.4 E 4 Ms.Girard previously lived on vessels in the Key West area. r Q 8 Exhibit"A" Packet Pg.4 38 S.2k 13. Marathon, Islamorada, and Key West, are all municipalities with the duty and authority to adopt a comprehensive plan, pursuant to section 0 r a 163.3167, Florida Statutes (2019). -a° M Backvround J 14. In 1972, the Florida Legislature enacted the Environmental Land and y r Water Management Act, which provided the basis for state designation of Areas of Critical State Concern ("ACSC").5 The statute provides criteria for M designating an ACSC, which is generally"[a]n area containing ... U g environmental or natural resources of regional or statewide importance," 21 such as wildlife refuges, aquatic preserves, and state environmentally as endangered lands. § 380.05(2), Fla. Stat. (2019).6 y 15. In 1974, the Florida Keys (Monroe County and its municipalities) were designated an ACSC due to the area's environmental sensitivity and o 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 E E that, among other things, "protects the natural environment," "conserves and promotes the community character," "promotes orderly and balanced growth r 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). CL 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 U. programs and personnel to guide development in a manner that would ensure protection of natural resources. Uj 6 The statute contains additional specific criteria for designation,including the economic and K Uj ecological value of the area;presence of critical habitat of any state or federally designated threatened or endangered plant or animal species;inherent susceptibility to substantial development due to its geographical location or natural aesthetics;and the anticipated effect E E of development on the environmental or natural resources of regional or statewide U importance. §380.05(2), Fla.Stat. (2019). r Q 9 Exhibit"A' Packet Pg.4139 S.2k 17. The ACSC designation transferred all local Keys planning and development review and approval rights to the state land-planning agency, .2 CL the Florida Department of Community Affairs ("DCA').7 While the Keys local M governments can adopt and amend their plan and land development t� regulations, those provisions do not take effect until approved by y r administrative rule. See § 380.0552(9), Fla. Stat. 18. In 1986, Monroe County updated its comprehensive plan to be rao M consistent with the 1985 Growth Management Act.8 Several administrative M challenges followed, initiated by both DCA and private entities and 0) 21 individuals. M a 19. Monroe County revised its comprehensive plan in 1993 to resolve .y many of the issues raised in the litigation, but those amendments were again challenged in administrative proceedings. 0 20. The second challenge culminated in a final order of the Administration Commission in 1995 finding the 1993 Monroe County Plan not"in compliance," with the Act and the Principles for Guiding Development in the y r 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 M r uniqueness of the environment ... and the current condition of the U as environment must be addressed in any growth management decisiono."DCA 6 v. Monroe Cty., 1995 Fla. ENV LEXIS 129 (Fla. ACC 1995). CL 21. The litigation highlighted aspects of the Florida Keys ecosystem as having limited capacity to sustain additional impacts from development. Of M particular concern was the declining water quality of the nearshore LL environment due to lack of central sewer facilities, the loss of habitat for LU ..........._..... _.__... uJ 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. S The Growth Management Act was significantly amended and renamed the"Community U r Planning Act,"by chapter 2011-142, Laws of Florida. 10 Exhibit"A" Packet Pg.q071 S.2k state and federally-listed species, public safety in the event of hurricanes, and a deficit of affordable housing. Relevant to Petitioner's challenge, the 0 r a Final Order found that the ability of the nearshore waters of the Keys to -a° M withstand additional degradation from sewage and stormwater discharges J "has already been reached or even exceeded," and that development of the y r Keys "is degrading the nearshore waters at or over carrying capacity." 22. The 1995 Final Order required Monroe County to undertake certain M "remedial actions" in order to bring the Plan into compliance with both the U g Act and the Principles, which are adopted in section 380.0552. 21 23. Among the remedial actions was the requirement that Monroe County a establish a Permit Allocation System ("PAS") for new residential y development. The Administration Commission explained, as follows: _° The [PAS] shall limit the number of permits issued o 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. 24. Monroe County amended its plan in 1996 to implement the PAS and M other remedial actions, and adopted a "carrying capacity approach" to r U planning in the ACSC. 25. The amended comprehensive plan was approved by rule of the CL Administration Commission—Florida Administrative Code Rule 28-20, which also established a comprehensive work program designed to improve the Keys' water quality and protect the habitat of threatened and endangered LL species. 26. The rule was subject to another administrative challenge, and the Division issued a final order upholding the rule in 1997. See Abbott V. Admin. LU r Comm'n, Case No. 96-2027RP (Fla. DOAH May 21, 1997). E U r r 11 Exhibit"A" Packet Pg.q171 S.2k The Carrying Calacity Stud 27. The work program adopted by the rule included the requirement to .2 CL 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 y r ecosystem, and the various segments thereof, to withstand impacts of additional land development activities." The rule established that the o r M analysis should be based on the findings adopted by the Administration M Commission on December 12, 1995, "or more recent data that may become 0 21 available in the course of the study," and upon the benchmarks of, and all M adverse impacts to, the Keys natural land and water systems, in addition to .y the impacts of nutrients on marine resources. 28. The study was undertaken beginning in 1996 and was sponsored 0 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. y r 29. The Final Report9 of the Florida Keys Carrying Capacity Study ("FKCCS") was issued in September 2002. The major findings include the following: E r ® Development suitability in the Florida Keys is U extremely restricted, due to the following characteristics: Existing development has 0 displaced nearly 50 percent of all upland CL habitats, and remaining uplands are distributed in patches of 10 or fewer acres; almost every 20 native area is potential habitat for one or more endangered species; over 50 percent of all private lands are wetland parcels, and L` development suitability of remaining lands is LU low or marginal due to open space requirements, lack of infrastructure, and other LU factors. s The document introduced in evidence is titled"Draft Final Report."According to the U testimony of Rebecca Jetton, no other final report was issued by the study sponsors. 12 Exhibit"N' Packet Pg.4142 S.2k • Future growth is limited in the next 20 years— less than 10 percent growth in the number of dwelling units and population—due to CL infrastructure limitations. Permitted capacity of ®a° potable water withdrawals was exceeded in 1999 and 2000; improvement of hurricane J 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 habitats; and residential capacity is limited to 6,000 units in order to maintain the state- g mandated level of service for roadways. 21 • 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. `o 0 • The existing data "are insufficient to establish quantitative, predictive relationships between land use or development and the marine y environment." The study documented human impacts to the marine ecosystem and species. The study underscores the benefits of wastewater treatment, "but other impacts are E more related to resource management than to land development." U a 30. The study provides the following four major guidelines for future o CL 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 LL development and further impacts would only 0 exacerbate an already untenable condition. LU 2. Continue and intensify existing programs. Many LU initiatives to improve environmental conditions and quality of life exist in the Florida Keys. They include land acquisition programs, the wastewater U and stormwater master plans, ongoing research 13 Exhibit"A" Packet Pg.4143 S.2k 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 M redevelopment and infill. Opportunities for additional growth with small, potentially acceptable, additional environmental impacts may occur in areas ripe for redevelopment or already disturbed. o 4. Increase efforts to manage the resources. Habitat management efforts in the Keys could increase to M effectively preserve and improve the ecological 21 values of remaining terrestrial ecosystems. 31. Rule 28-20.001 required the findings of the FKCCS to be implemented .y by"adoption of all necessary [comprehensive plan] amendments to establish a rate of growth and a set of development standards [to] ensure that any and 0 cs 0 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 y r support future comprehensive plan amendments and revisions of land development regulations. 24-Hour Hurricane Evacuation M r 32. In 2006, following the publication of the FKCCS, the Legislature U as amended section 380.0552 to require the local governments to adopt 0 provisions in their comprehensive plans to "protect the public safety andCL welfare in the event of a natural disaster by maintaining a hurricane evacuation clearance time for permanent residents of no more than 24 hours." M § 380.0552(4)(e)2., Fla. Stat. (2007). The requirement remains in effect and isLL enforced by the state through review of local government plan amendments. Lu See § 380.0552(9)(a)2., Fla. Stat. LU ROGO and BPAS 33. Principle among the Monroe County amendments to implement the remedial actions ordered by the Administration Commission was the PAS, 14 Exhibit"A" Packet Pg.4144 S.2k implemented in the County by a Rate of Growth Ordinance ("ROGO"). The current version of the administrative rule approving the County's .2 r a comprehensive plan is rule 28-20.140, which also governs and approves 0 ROGO. The rule provides the maximum number of permits for residential J development that may be issued annually, with a split between affordable y r 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 M market rate units. Any unused affordable housing units "roll over" for U g affordable housing units the following year. Other unused allocations may be rolled over and used for affordable housing units or"administrative relief."lo as 34. Islamorada and Marathon were not yet incorporated when the y comprehensive plan litigation began and subsequent remedial measures were issued. Since their incorporation, each of the cities has been brought under o 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. r 35. Marathon and Islamorada have permit allocation requirements similar to Monroe County, known as the Building Permit Allocation System ("BPAS"). Their respective administrative rules provide the annual maximumCL number of permits and the split between affordable and market rate units, as 20 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 LU having met all the requirements of the land development regulations, if they have been in the allocation system for a significant number of years. 11 Marathon's annual cap is 30 units and Islamorada's is 28(22 market rate and 6 affordable U housing). r r Q 15 Exhibit"A" Packet Pg.4145 S.2k 36. BP AS is a competitive system. Permit applications are awarded points based on their alignment with specific development criteria, such as presence .2 CL or absence of wetlands or protected habitat, and availability of public M services. Those applications with the highest points are awarded available t� J permits for the BPAS year. y r cork Prggra E 7. Each of the municipalities' governing rules includes a work program, .0 r M broken down into the following categories: (1) carrying capacity U g implementation.; (2) wastewater implementation,- and (3) wastewater project � implementation, Marathon's work program includes a fourth category— M a stor .°water treatment facilities. � .y . The specific activities of each work program differ somewhat. For example, with respect to environmentally-sensitive lands, Isla orada was 0 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 y r planning mapping into its comprehensive plan. 39. The wastewater implementation and wastewater project implementation sections of the work programs are of high i portanc;e. The M r litigation highlighted the declining water quality of the nearshore U as environment due to a lack of central sewer facilities. The Keys' wastewater 6 treatment "system" consisted of a hodgepodge of some 23,000 septic: tanks, CL 2,800 cesspits, and at least 249 small package treatment plants. 40. The work program represents a monumental, long-term, and M expensivel2 infrastructure project to build a central sewer system in the LL Keys, followed by a program to require existing developments to connect to LLJ 12 In both 2012 and 2016, the Florida:Legislature authorized expenditure of Everglades UJ restoration bond funds for Florida Treys wastewater and storrawater management projects; and.,in 2016, appropriated 5 million in.Florida Forever funds for said projects for the � 2016/2017 year.More than. 13 million was included in the general appropriations act for said projects in the 2017/2018 year. r Q 1 Exhibit"A" Packet Pg.4146 S.2k the system, and land development regulations to direct new growth to areas served by central wastewater treatment facilities. Each local government 0 r a work program includes specific target dates to obtain funding for, and -a° M construction of, each component of the sewer system, as well as specific target J dates for initiating and completing connections of existing development to the y r newly-constructed system. 41. Monroe County's work program also includes directives for funding stormwater improvement projects and deadlines for completing said projects. U g ACSC Annual Reports 21 42. The local governments and the Department of Economic Opportunity as ("DEO") are required to report to the Administration Commission annually y 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 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 r awarded an additional four points15 if the parcel is served by central sewer meeting statewide treatment standards. 0 44. In the 2017 ACSC annual report, the most recent report for which the C parties requested official recognition, Islamorada reported it had connected 20 85 percent of potential customers (with another five percent in the M - 13 The work program year runs from July of one year to June of the following year. LU 14 The Islamorada rule does not contain this provision; however,it does provide that, if the K LU Administration Commission determines progress has been made for the work program year, then the Commission"shall restore the unit cap"of 28 allocations for the following year.It is unclear whether Islamorada was already under penalty when the new rule was adopted or whether this is an oversight in the rule. U a r 15 In Islamorada,the award is two additional points. 17 Exhibit"A' Packet Pg.4147 S.2k application process), Marathon had connected 97 percent, and Monroe County had an overall connection rate of 86 percent (with higher percentages .2 CL for specific individual treatment facilities). M Cite of_Kev West t� 45. Key West challenged its inclusion in the original ACSC designation, y r 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 r.0 M Chapter 28-36. U 46. The Key West ACSC is subject to the same land planning and 21 development regulation oversight as the Florida Keys ACSC, and the Key M West comprehensive plan and land development regulations are approved by .y the state through Florida Administrative Code Chapters 28-37 and 9B-30. 47. Key West is subject to separate principles for guiding development 2 0 than the Florida Keys ACSC, which are found in rule 28-36.003. Key West is served by central sewer and does not have work program tasks. Hurricane_Evacuation Clearance Time y r 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 M r local governments, to stipulate to the input variables and assumptions for U as utilizing the Florida Keys Hurricane Model, or other models acceptable to 0 DEO, to accurately depict hurricane evacuation clearance times for the CL 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 M "to complete an analysis of the maximum build-out capacity for the ACSC, LL consistent with the requirement to maintain a 24-hour evacuation clearance LU time and the [FKCCS] constraints." LU 49. DEO appointed a Hurricane Evacuation Clearance Time Work Group (the "Work Group") including members of each of the six local governments U and representatives from the tourism industry, chambers of commerce, and 18 Exhibit"A" Packet Pg.4148 S.2k community organizations, as well as from state and federal agencies. The Work Group held a series of public workshops to consider hurricane model .2 CL inputs—census data, behavioral studies, hurricane forecasting, military M evacuation procedures, traffic flow rates, and number and location of vacant J platted lots. y r 50. The Work Group selected the Division of Emergency Management's Transportation Interface for Modeling Evacuations ("TIME") as the model to M accurately depict evacuation clearance times for the population of the Keys U ACSC and the Key West ACSC ("the Florida Keys ACSCs"). The Work Group 21 agreed on 10 modeling assumptions, including the number of tourist units, as and of those, the number occupied; the number of mobile home units and y evacuation participation rates; and the number of site-built units, the occupancy rate, and participation rate of residents in those units, among 0 other important variables. The inputs and assumptions were tested by o 3 modeling over 100 evacuation scenarios. 51. The Work Group presented its findings on June 8, 2012, and selected y r 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 r Key West). Scenario M5 produced an evacuation clearance time of 24 hours with a future allocation of 3,550 new residential building permits. 0 52. Notably, scenario M5 assumed that military, mobile home residents, 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 0 mobile homes would convert to site-built homes. LL 53. In the two-phase evacuation plan, tourists are ordered to evacuateLU 48 hours in advance of predicted tropical storm force winds, and residents of LU mobile homes are ordered to evacuate 36 hours in advance. The model predicted an evacuation clearance time of 16 hours and 30 minutes for E U r r 19 Exhibit"A" Packet Pg.q971 S.2k Phase I using tourist occupancy rates for July, and 17 hours and 30 minutes using tourist occupancy rates for the Labor Day weekend. .2 54. Under Scenario M5, residents of site-built units are ordered to 0 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 o r 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 21 380.0552. M 55. The Work Program directed DEO to "apply the derived clearance time .y 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 that a maximum of 3,550 additional units could be distributed over the next y r ten years, beginning in July 2013. 56. On November 5, 2012, Monroe County, Marathon, Islamorada, Key Colony Beach, Key West, the City of Layton, the Division of Emergency M Management, and DEO, entered into an MOU agreeing on the use of the U as TIME model, as well as the data, input variables, and assumptions to be utilized in model runs. The following"whereas" clause succinctly provides the CL 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 ILL units (43,760 units); the maximum number of Lu residential building permits for new construction 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 3); 1,248 mobile home units projected to convert to site-built units; the exclusion of 870 dwelling units r 20 Exhibit"A" Packet Pg.4T50 S.2k on the Naval Air Station; as well as two (2) functional evacuation lanes from MM 108-126. Further the work group recommended Scenario M5 CL with the provision that the City of Key West would transfer annually (by July 13th) any remaining or M to unused (90 allocations) allocations to the other J Local Governments based upon the Local y Governments' ratio of vacant land. 0 57. Technical corrections made after the June 8, 2012 meeting, the census- M based number of site-built units was revised to 43,718 and the Key West g allocation was revised to 91. 21 M 58. The MOU also memorializes the following staged evacuation procedure: 0 • Approximately 48 hours in advance of tropical storm winds, mandatory 0 U evacuation of non-residents, visitors, RVs, travel trailers, live-aboard 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. E • Approximately 30 hours in advance, mandatory phased evacuation of E E M permanent residents by evacuation zone.[16] cs 59. The phased evacuation procedure is also adopted in each of the local government comprehensive plans, except Key West, which adopted the o M CL procedure by resolution. Affordable Housing 60. The need for additional affordable housing in the Keys is well documented, and the parties stipulated, generally, to the need. LL LU LU r is There are five hurricane evacuation zones in the Keys designated by mile marker numbers along US 1. 21 Exhibit"A" Packet Pg.4151 S.2k 61. Numerous factors contribute to the need for affordable housing, including, but not limited to, the high cost of living, higher construction costs, CL the high cost of land, as well as the limited supply and high demand for real estate and housing throughout the Florida Keys. The need for affordable housing was exacerbated by Hurricane Irma, which made landfall in the y Florida Keys in September of 2017 and destroyed approximately 400 mobile homes, "permanent RV's," and ground-level single-family homes that served o r as affordable housing, many for members of the Keys workforce. M 62. Most of the site-built homes destroyed were not built to current 21 building code standards, but were "grandfathered" from code compliance. M Those structures must be rebuilt to code, which will likely take them out of .y financial reach of members of the Keys workforce. 63. Provision of affordable housing is an important aspect of the 0 regulatory framework for planning in the Keys. 64. The litigation over the Monroe County comprehensive plan highlighted a deficit of affordable housing in the Keys.Among the Principles y r is the requirement to"[make] available adequate affordable housing for all sectors of the population" of the Keys. § 380.0552(7)(0, Fla. Stat. When designating the ACSC, the Legislature expressed the intent to "[p]rovide M affordable housing in close proximity to places of employment" in the Keys. U as § 380.0552(2)(d), Fla. Stat. 6 The Key s,.Workforce_Housin+ InitiativeCL 65. Shortly after Hurricane Irma, Marathon began discussions with DEO E about the possibility of obtaining additional building permit allocations for M workforce-affordable housing. LL 66. In November 2017, Marathon passed Resolution 2017-99 requesting LU the allocation of 300 affordable housing allocations from DEO with approval LU of the Administration Commission. 67. DEO determined there were not enough building permits available under the current regulatory structure to address the need for affordable 22 Exhibit"A" Packet Pg.4152 S.2k housing in the Florida Keys.As a result, DEO developed the Keys Workforce Affordable Housing Initiative (the "Housing Initiative")to allow up to 0 r a 1,300 new building permit allocations for workforce housing throughout the 0 Florida Keys, with an initial allocation not to exceed 300 per local J government. y r 68. Under the Housing Initiative, the additional units are to be deed- restricted for workforce affordable housing and required to evacuate in M Phase I, along with tourists, visitors, mobile home residents, and military U g personnel. 21 69. The Administration Commission approved the Housing Initiative at as the June 13, 2018 meeting. In support of the Housing Initiative, DEO staff y made a presentation asserting that the Phase I evacuation (under the existing staged evacuation plan) can be accomplished in 17.5 hours, leaving o 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." y r 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. M r The Plan Amendments 71. The Marathon Plan Amendment creates a new Future Land Use 0 ("FLU') goal stating the intent to participate in the Housing Initiative CL approved by the Administration Commission. It further creates a new FLU Objective establishing a"new limited category" of building permit allocations M known as "Affordable—Early Evacuation Pool" providing 300 workforce LL LU affordable building permit allocations in addition to the allocations identified in chapter 28-18. The Marathon Plan Amendment creates five new FLU policies. The first allows for distribution of the allocations "at any time" provided applicable Marathon public notice and hearing procedures are U r r 23 Exhibit"A" Packet Pg.4T53 S.2k followed and the distribution is based on the BPAS ranking procedures in effect. S .2 CL 72. The second policy provides the following"Specific Standards and M Requirements for Workforce Affordable Housing": t� Affordable-Early Evacuation residential units under this program shall: a. be multifamily structures; o r M b. be rental units; g 21 c. require, at a minimum, adherence to the latest M edition of the Florida Building Code[]; as d. not be placed in the V-Zone or within the Coastal Barrier Resource Systems; cs 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 mangroves, saltmarsh & buttonwood, hardwood hammock, or fresh water wetlands (disturbed M categories excepted); U as h. incorporate sustainable and resilient design principles into the overall site design; a i. ensure accessibility to employment centers and amenities; and M j. require deed-restrictions ensuring: U. LU (i) the property remains workforce-affordable housing in perpetuity; LU (ii) tenants evacuate during the period in which transient units are required to evacuate; M U r r 24 Exhibit"A" Packet Pg.4 54 S.2k (iii) rental agreements contain a separate disclosure requiring renters to acknowledge that failure to adhere to the evacuation requirement CL could result in severe penalties, including eviction, -a° to the resident; and J (iv) on-site property managers are formally trained y in evacuation procedures. 73. The third policy exempts from the early evacuation requirement all M first responders, correctional officers, health care professionals, or other first- U g response workers required to remain during an emergency. 74. The fourth policy requires the workforce-affordable developments to a comply with federal accessibility standards. y 75. The last policy requires Marathon to provide DEO with an annual _° report on the implementation of the Housing Initiative, including o documenting the number of workforce-affordable housing units built, occupancy rates, and compliance with the early evacuation requirement. The report is to be included in the DEO annual work program report to the Administration Commission. 76. Islamorada's plan amendment provides 300 workforce-affordable building permit allocations in addition to the allocations identified in r chapter 28-19. In all other respects the amendment is identical to the Marathon Plan Amendment. 0 77. The Key West Plan Amendment approves the receipt of 300 workforce- CL affordable building permit allocations "as well as any additional allocations which may be authorized by the Florida Administration Commission or M transferred to Key West that are not accepted by other Florida Keys LL municipalities or Monroe County." Rather than authorizing distribution of the allocation"at any time," Key West authorizes distribution"on a first- come first-served basis and at any time" following public notice and hearing procedures. Allocation of the Key West permits is not required to follow BPAS U ranking unless the number of applications received exceeds the authorized 25 Exhibit"A" Packet Pg.4 55 S.2k allocation. There are also two minor differences in the "Standards and Requirement for Workforce-Affordable Housing" in the Key West Plan .2 CL Amendment: it does not contain the paragraph prohibiting placement of units M in buttonwood and hardwood hammock; and it does not require that property t� managers be trained in evacuation procedures. Otherwise, the Key West Plan y r Amendment is virtually identical to that adopted by Marathon and Islamorada. o r M Petitioners' Challenxaes _. .. 78. Petitioners challenge the Plan Amendments, generally, as inconsistent 0) 21 with the FKCCS and the carrying capacity approach to planning in the Keys. M as The two main contentions are hurricane evacuation and environmental .y concerns. Hurricane Evacuation 0 79. Petitioners posit that the Plan Amendments violate the Principles and the MOU171, and render the local government comprehensive plans internally inconsistent, by exceeding the requirement to evacuate the Keys permanent y r 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. M r 80. At first blush, Petitioners' argument has merit: the Plan Amendments U as allow up to 1,300 units to be built in the Keys beyond the previously- 6 established maximum buildout of 3,550 units through the year 2023. That CL buildout number was derived directly from the Work Group after agreement on all assumptions and inputs for, and multiple runs of, the agreed-upon M TIME model, and identification of the M5 scenario as the best model for LL evacuation of permanent population within 24 hours. 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 U compliance issue. r Q 26 Exhibit"N' Packet Pg.4T56 S.2k 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 .2 r a in direct conflict with the 24-hour evacuation requirement because, as -a° M implemented, the evacuation plan requires some permanent residents— residents of mobile homes, "permanent RVs," live-aboard vessels, and y r military personnel—to evacuate in advance of the start of the 24-hour clock. That requirement is incorporated into the local government comprehensive M plans which have previously been found to be "in compliance"—meaning both U g internally consistent and consistent with the Principles. 21 82. Petitioners introduced the testimony of Richard Ogburn, a planning as expert who has extensive experience with hurricane evacuation modeling in y South Florida, including the Keys. Mr. Ogburn was directly involved in the Work Group hurricane evacuation modeling that culminated in the 2012 0 report and adoption of the MOUs. As Mr. Ogburn explained, Monroe County was the first local government in the state to update its hurricane evacuation modeling based on the 2010 census data. It was to be a pilot for updating the statewide regional evacuation plan utilizing the new census data. E E 83. Specifically, Mr. Ogburn, who was at the time employed by the South Florida Regional Planning Council, extracted demographic data from the r 2010 census and created the demographic data base for use with the TIME model. Mr. Ogburn subsequently completed"validation runs" of the TIME 0 model results generated by DEO staff during the Work Group process.18 CL 84. In 2013, while Mr. Ogburn was working on the update to the statewide 20 regional evacuation model, Mr. Ogburn discovered some blank cells within M the census block group data sets in the original spreadsheet he had created U. LU for DEO. The missing information was the number of vehicles identified within those specific census block groups. With respect to Monroe County, LU eight of the 76 block groups were missing vehicle data. E U 18 The validation process involved input of the data parameters into the model and repeating the same model run scenarios to ensure that the results from the initial runs were replicated. 27 Exhibit"N' Packet Pg.4T57 S.2k 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 .2 CL for purposes of updating the statewide regional model. In 2014, Mr. Ogburn M reported the census data errors to DEO, which requested he rerun scenario t� M5 after including the missing vehicles. The result was an increase of two- y r and-a-half hours for evacuation of Phase II—a total clearance time of C 26.5 hours. o r M 86. Mr. Ogburn testified that, based on the best-available data on M hurricane evacuation clearance times, the evacuation of site-built dwellings 21 in the Keys already exceeds the 24-hour evacuation standard mandate by M statute (and incorporated into Respondents' comprehensive plans). In his .y opinion, adding units authorized by the Housing Initiative would further exacerbate the problem. 0 87. Petitioners introduced other evidence aimed at tearing down the conclusion of the Work Group that the Keys could be safely evacuated in under 24 hours, based on the 2012 TIME model runs. For example, y r Mr. Ogburn questioned the vacancy rates utilized by the Work Group, which he described as "most likely" too high. Mr. Ogburn cast doubt on the C 100% participation rate assumption, and the assumed 12-hour response M r curve, which he testified was unrealistic given that people will not leave at U as the same rate if the evacuation is ordered at midnight as they would if the 6 order was given at 7:00 a.m. Petitioners likewise introduced evidence casting CL doubt on the ability of meteorologists to predict storms with accuracy 48 hours in advance of landfall. M 88. The Keys local government comprehensive plans, as adopted with useLL of the TIME model, and all underlying assumptions and inputs, have LU previously been determined to be "in compliance." The question of whether LU those assumptions and model inputs are supported by data and analysis is 0) U r r 28 Exhibit"K Packet Pg.4T58 S.2k not properly before the undersigned in this proceeding. The evidence was, for the most part, irrelevant.19 0 .2 a 89. The Housing Initiative is grounded on the availability of evacuation -a° M time in Phase I of the agreed evacuation procedure, which is adopted in each J of the local government comprehensive plans. Mr. Ogburn agreed on cross- y r examination, that the TIME model was run separately for Phase I and C Phase II, that the results from Phase I were not taken into consideration in M the data for Phase II, and that if the units are presumed to evacuate in U g Phase I, it would have no effect on the analysis for Phase II. 21 90. Notably, when Mr. Ogburn was asked directly whether the additional as 1,300 units added to permanent population would cause the Keys evacuation y time to exceed 24 hours, Mr. Ogburn testified: If the evacuation takes place ahead of time, it's a o 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 phase to increase significantly.120] C 0 91. The 2012 run of the TIME model demonstrated a clearance time in 0 Phase I of 16 hours and 30 minutes, or 17 hours and 30 minutes, depending M on the transient occupancy rate utilized. as 92. Respondents introduced the testimony of Joaquin Vargas, a traffic 0 engineering consultant who was accepted as an expert in transportation CL planning, including roadway capacity issues related to hurricane evacuation. Mr. Vargas participated in hurricane evacuation modeling in the Keys in the 0 0 1990s to determine potential roadway improvements that could reduce Keys LL evacuation clearance time. Mr. Vargas was the principal author of the "Miller LU Model," which was utilized in these studies. LU r 19 Moreover,the evidence served to undercut Petitioners'argument that the best available data and analysis supports the 24-hour evacuation clearance time cap. U r 20 T2:79;1-6. 29 Exhibit"A" Packet Pg.4159 S.2k 93. Mr. Vargas' modeling was not based on a two-phased evacuation. Instead, the Miller Model assumed evacuation of all permanent population .2 CL simultaneously in order to identify where roadway improvements would M reduce the evacuation clearance time. t� 94. Mr. Vargas introduced the results of a model run of simultaneous y r evacuation of the Keys without units authorized under the Housing Initiative, and a second adding 300 units each for Marathon, Islamorada, and ro 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 0) 21 900 units, the model yielded a clearance time of 21 hours and 42 minutes. M 95. This evidence had little relevance because the models are not .y comparable, and because Mr. Vargas utilized inputs and assumptions that differed greatly from the TIME model runs underlying the carrying capacity 0 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 y r TIME model.Additionally, Mr.Vargas utilized 2000 census data, rather than the more recent 2010 data, which Mr. Vargas admitted"w[ould] provide more C accurate information," and included inaccurate data, such as non-existent M r lane segments which inflated capacity on some roadway segments. While U as 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"inCL compliance" comprehensive plans are based on use of the TIME model to determine maximum buildout in the Keys. M 96. Mr. Ogburn completed a run of the TIME model in 2014 whichLL included the previously-missing vehicles from the census block groups in Lu Phase I. That rerun produced a clearance time of 19 hours. The best available LU data and analysis (the 2014 rerun) supports a finding that the clearance time C for Phase 1, without the additional units from the Housing Initiative, is 19 hours. Thus, the evidence does not support a finding that the evacuation of r 30 Exhibit"A" Packet Pg.4T60 S.2k Phase I with the additional 1,300 units cannot be completed within the first 24 hours of a 48-hour evacuation scenario. o .2 a 97. The preponderance of the evidence does not support a finding that the -a° M inclusion of the 1,300 units in Phase I will violate the requirement to J evacuate Keys permanent residents in 24 hours or less. y r 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 U g provisions of Respondents' comprehensive plans: ;, Marathon: a • FLU Objective 1-2.1, which requires Marathon to "ensure the y availability of adequate public facilities and services[.]" _° cs 0 • FLU Objective 1-2.2, requiring Marathon to "meet the required 24- 0 hour hurricane evacuation time or other applicable state standard for hurricane evacuation." y r • FLU Objective 1-3.5, requiring Marathon to "manage the rate of new E development to ... support safe and timely evacuation prior to a E E M hurricane." U as • Conservation and Coastal Element Policy 4-1.21.2, requiring Marathon 0 to coordinate with Monroe County in updating policy formulations CL 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. LL LU • Intergovernmental Coordination Element ("ICE") Objective 5-1.1, requiring Marathon to maintain coordination mechanisms with the LU r comprehensive plans of Monroe County and adjacent municipalities. U r r 31 Exhibit"A" Packet Pg.4161 S.2k • ICE Policy 5-1.1.2, requiring Marathon to coordinate with adjacent jurisdictions "for the development of joint strategies to address .2 CL development, zoning, and land-use decisions that transcend M jurisdictional boundaries." t� J • ICE Policy 5-1.1.10, requiring Marathon to establish a program to provide and review proposed plan amendments of adjacent local 0 governments to ensure consistency. U M g • Policy 5-1.2.10), requiring Marathon to enter into interlocal agreements or develop joint resolutions in areas of mutual concern, as including the coordination of hurricane evacuation plans. 0 Islamorada: • FLU Goal 1-1, which provides that the comprehensive plan shall o "[e]ncourage[] sustainability by limiting growth in order to establish and maintain acceptable levels of service for hurricane evacuation[.]" y r • Transportation Element ("TE") Policy 2-1.2.8, which requires Islamorada to"address long-term strategies to reduce clearance time and coordinate permit allocations" by implementing specifically-listed E programs with FDOT, FDCA, and other local governments in the Keys. as ®a • TE Policy 2-1.2.9, which provides for the stagedlphased evacuation a procedure to maintain a 24-hour hurricane evacuation clearance time. • TE Policy 2-1.2.10, which requires Islamorada to "support state M funding for the update of the hurricane evacuation model that '. considers the impact of Miami-Dade County on evacuees[.]" LU • TE Policy 2-1.6.3, by which Islamorada"adopts 24 hours as the r maximum allowable hurricane evacuation clearance time standard," and provides that"[t]he Village shall reduce and maintain hurricane U r r 32 Exhibit"A" Packet Pg.4T62 S.2k evacuation clearance time at or below 24 hours by ... limiting the annual allocation of permits ... as determined by interlocal agreement .2 r a with the affected local governments in the Keys and the [DEO]." 0 t� • Coastal Management Element ("CME") Objective 5-1.9, requiring J Islamorada to "avoid population concentrations in the coastal high hazard area." 0 r M • CME Policy 5-1.10.2, requiring Islamorada to"coordinate with Monroe g County in emergency preparedness." 21 M as • CME Objective 5-1.15, requiring Islamorada to "ensure y intergovernmental coordination within the coastal area." • ICE Objective 8-1.1, requiring Islamorada to "ensure 0 intergovernmental coordination." • ICE Policy 8-1.2.1, titled"Coordinate Development and Growth Management Issues." • ICE Policy 8-1.2.8, titled"Implement Intergovernmental M Coordination." U a Key West: 0 • FLU Objective 1-1.16, requiring Key West to"regulate the rate of CL population growth commensurate with planned increases in evacuation capacity in order to maintain and improve hurricane 0 evacuation clearance times[,]" and"in concert with Monroe County, its U. municipalities, and the State of Florida, [Key West] shall manage the LU rate of growth in order to maintain an evacuation clearance time of LU 24 hours for permanent residents." U r r Q 33 Exhibit"A" Packet Pg.4T63 S.2k • CME Goal 5-1, "Protect human life and limit public expenditures in areas subject to destruction by natural disasters[.]" .2 a 0 • CAI: Objective -1. , requiring Key West to"coordinate with the State, M t� the South Florida Regional Planning Council, [Monroe] County, and J other local governments in order to regulate population growth and stage evacuations in amanner that maintains hurricane evacuation 0 clearance times iai accordance with the executed OUI[.]" U M g • ICE Policy -1.1.3, which reads, in pertinent part, as follows: 21 M Considering the growth and development limitations in Monroe County as a whole resulting o 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 E transcending the [Key West's] political jurisdiction. Issues of regional and state significance shall be U coordinated. with the SP PC], the [SF D], E s a.ndlor State agencies having jurisdictional o authority. Issues to be pursued include but are not CL limited to the following- [Key West] shall implement the hurricane and. transportation 20 conclusions and policies relative to residential units' allocation which are adopted by Monroe LL County arid. all municipalities as described in the 0 LU [ OU] dated July 14, 2012. 99. Petitioners did not prove that the Marathon Plan Amendment isLU internally inconsistent with Objectives 1- .1, 1-2. , 1-3.5, and -1.1; and E Policies 4-1. 1.2, -1.1.(2), -1.1.10, and 5-1. .1.j. U r r 3 Exhibit"A" Packet Pg.4T64 S.2k 100. Petitioners did not prove the Islamorada Plan Amendment is inconsistent with Islamorada Comprehensive Plan Goal 1-1; Policies 2-1.2.8, o a 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- -a° M 1.15; and Objective 8-1.1 and Policies 8-1.2.1 and 8-1.2.8. J 101. Petitioners did not prove the Key West Plan Amendment is internally y r inconsistent with Key West Comprehensive Plan Objectives 1-1.16, 5-1.6, Goal 5-1, and Policy 8-1.1.3. M 102. Based on the foregoing Findings of Fact, Petitioners did not prove U g that the Marathon and Islamorada Plan Amendments are inconsistent with 21 section 380.0552(9)(a)2., which requires the local governments in the ACSC as to adopt goals, objectives, and policies to"maintain a hurricane evacuation y clearance time for permanent residents of no more than 24 hours." �° Environmental Concerns 0 103. 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. r 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_ r 104. Petitioners claim that the nearshore water quality of the Keys was determined over 25 years ago to have exceeded its capacity to assimilate 0 additional nutrients, that it remains nutrient-impaired today, and that the CL additional development authorized under the Plan Amendments will further increase nutrient pollution from additional wastewater and stormwater M associated with development. LL 105. In 1990, Congress created the Florida Keys National Marine Sanctuary ("FKNMS"), and required development of a Water Quality LU Protection Program ("WQPP"), establishing comprehensive, long-term monitoring of water quality in the FKNMS.Under the Water Quality U r r 35 Exhibit"A" Packet Pg.4T65 S.2k Monitoring Project ("WQMP"), water quality has been monitored quarterly at approximately 150 sampling stations since 1995. o CL 106. In 1997, the Governor and Cabinet approved the FKNMS M Management Plan for implementation in state waters, and required annual reports from the FKNMS. y r 107. The 2011 FKNMS annual report stated that, "in general, water quality is good Sanctuary-wide but documentation of elevated nitrate in the rao M 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 0) 21 is diluted by low nutrient ocean waters," and that "[a]nalysis of monitoring M data from 1995 through 2008 indicates a statistically significant .y improvement in some parameters, such as dissolved inorganic nitrogen ..." The report concludes that"this trend will be watched closely in the future, o 0 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 y r 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 M r nitrogen) at < 0.010 parts per million ("ppm"), and TP (total phosphorous) at U < 0.0077 ppm, among other nutrients, which are considered the values 6 "essential to promote coral growth and overall health." Future sampling was CL 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 M the target of< 0.010 ppm). In 2011, FKNMS added 10 sampling stations, U. located within 500 meters of the shore in the Keys, referred to in the reports LU as the SHORE stations. LU 109. In 2015, FKNMS reported that an average of all stations (excluding SHORE stations) met or exceeded the target value for DIN in 2008 through 2011, but fell short of the target in 2012 through 2015. The stations reported r Q 36 Exhibit"A" Packet Pg.4T66 S.2k 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 r.2 . or exceeding the DIN target in 2017, but not 2016; and meeting or exceeding -a° M the TP target in both 2016 and 2017. The 2017 study reported that"the J FKNMS exhibited very good water quality with median concentrations of TP ' y r at .0058, well below the target of.008. In 2018, FKNMS reported the stations C meeting or exceeding the target for both nutrients. Again, in 2018, FKNMS M reported"very good water quality with median concentrations of TP at U g .0051, lower than the 2017 level, and again well below the EPA target. ;, 110. In summary, the reports demonstrate the stations fell below the a target for TP in 2008 and 2010, but met or exceeded the target every year y since 2010. The samples fell below the target for DIN in 2012 through 2016, �° but met or exceeded the target value in subsequent years. 0 111. 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. y r C 112. The 2014 report documented elevated nutrient concentrations of DIN 0 and TP in waters close to shore along the Keys, attributable to"human a) E impact." M r 113. The 2015, 2017, and 2018 reports exclude the data from the SHORE stations for purposes of demonstrating compliance with target values because 0 they "introduce a bias to the dataset which results in a reporting CL problem[J"21 114. The 2017 report does include an analysis of the geographic 0 C differences between testing stations. The report indicates a significant U. difference between the median levels of nutrients sampled in SHORELU stations when compared with the "alongshore," "channel," and"reef' stations. LU r _......n..............._..... C 21 Petitioners sought to introduce raw sample data from SHORE stations and an analysis of E E said data by Kathleen McKee.That evidence was admitted as hearsay only, and was not corroborated by any non-hearsay evidence. r Q 37 Exhibit"A" Packet Pg.4T67 S.2k 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 .2 CL level of TP, which the report recognizes as one of the most important determinants of local ecosystem health, at the SHORE stations was just below .007, compared to the EPA target of.008. y 115. More importantly, Petitioners focus on the SHORE station data was inconsistent with their challenge that the nearshore water quality remains o r M impaired. Petitioners' planning expert, Ms. Jetton, defined nearshore as M approximately 12,000 meters from shore, not merely within 500 meters of 0) 21 shore. The 2017 report breaks out the "alongshore" stations as well as the M SHORE stations. That data shows the median value of TP at the alongshore .y stations is approximately .0055, well below the target of.008. Notably, 75 0 percent of the alongshore stations sampled TP below the target .008. With 0 cs 0 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) y r 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 M r the water is becoming clearer. The 2014 report showed no significant trends U as in TP, but the 2018 report noted small, but significant, declining trends in TP 0 values in most surface waters.S2 a 117. In 1995, the EPA and the Department of Environmental Protection ("DEP") listed the Keys waters as "impaired," pursuant to the Clean Water M Act.23 DEP is required to establish Total Maximum Daily Loads ("TMDLs") U. for impaired water bodies, which define the maximum pollutant loading that Lu can be discharged to those water bodies while still achieving water quality LU 22 The 2018 report does not contain the same detailed comparison of SHORE station samples with the other stations, as did the 2017 report. U r 23 33 U.S.C. § 1251 et seq. 8 Exhibit"A" Packet Pg.4168 S.2k targets. An alternative mechanism, a Reasonable Assurance Document ("RAD") can be developed in lieu of TMDLs when, as in the Keys, local .2 r a management activities are planned to achieve water quality targets. -a° M 118. The Florida Keys RADs ("FKRADs") were developed in 2008, and J each of the affected local governments became a signatory to a Stakeholder's y r Agreement to implement the FKRADs. The FKRADs established two sets of nutrient targets: (1) an insignificant increase in concentration above natural .0 r M background within the HALO zone, which is 500 meters of shore, not U g including canals; and (2) the average of values measured at the nearshore 21 (500 meters to 12,100 meters from the shoreline). The FKRADs identify as 23 impaired estuarine water body identifications ("WBIDs"). The WBIDs are y Class III water bodies, defined by the Clean Water Act as "used for recreation, propagation, and maintenance of a healthy, well-balanced o 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 E different water quality target values than the FKNMS. For the HALO Zone r the target is an"as insignificant increase above natural background for each nutrient." "Insignificant" is defined as less than ten micrograms per liter 0 (<10 µg/1) of TN, and< 2µg/1 for TP. CL 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 M assimilate all the nutrients that are going into it because ... we're not U. meeting the strategic targets[.]" Ms. Jetton concluded, based on the 2018 Update to the FKRAD, that "there should be no more development added to [the Keys] until the [WBIDs] can consistently meet their strategic targets." She further testified that the RAD documents identify the Keys'waters as U not meeting the DEP necessary levels of nutrients for healthy waters and 39 Exhibit"N' Packet Pg.4T69 S.2k 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." .2 CL 121. That testimony is unreliable. The purpose of the 2018 Update is M plainly set forth in the document itself. to document actions taken by t� stakeholders since 2011 and to address the DO impairment identified by DEP y r is some water segments; to include a revised approach to monitoring and reporting results; and to identify a schedule to meet water quality targets .0 M and restoration goals. U 122. The 2018 Update to the FKRAD contains neither data on samples of g 21 TN and TP in the HALO zone waters, nor any analysis of whether the M as target—insignificant increases above natural background—has been .y achieved. The 2018 Update provides that"water quality data will be compared to the FKRAD water quality targets ... to evaluate achievement of 2 O 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." y r Injection Wells and Nearshore Water t._ualit-N- 123.Absent concrete evidence to support Petitioners' claim that the C nearshore waters have not recovered from their 1995 impaired designation M r such that they can assimilate pollutants from additional development, U as Petitioners argue that the existing"improved' wastewater and stormwater 6 treatment infrastructure in the Keys does not adequately protect marine and CL coastal resources of the Keys, and that the addition of new development will exacerbate the problem. Specifically, Petitioners posit that shallow M wastewater injection wells degrade nearshore water quality. U. 124. Marathon injects treated wastewater effluent into shallow injection LU wells, which are drilled to a depth of at least 90 feet and cased to a minimum LU depth of 60 feet. a) 125. Marathon's five injection wells are permitted to, and currently U operate at, a permitted capacity of.200 million gallons per day ("MGD"), Q 40 Exhibit"A" Packet Pg.4 T071 S.2k .400 MGD, .200 MGD, .500 MGD, and .450 MGD, respectively. Marathon's injection wells are designed and permitted to exceed full build out. o r a 126. Key West injects its treated wastewater effluent into deep injection 0 wells, which are 3,000 feet deep and are cased to a minimum depth of 2,000 J feet.24 ' y r 127. Key West's injection wells are permitted at a capacity of 10 MGD, C and Key West currently uses approximately 50 percent or less of the total •° r M permitted capacity for its injection wells. U g 128. Islamorada does not have its own municipal wastewater effluent injection wells or wastewater treatment plant. Islamorada's wastewater is a transmitted to the Key Largo Regional Wastewater Treatment Facility ("Key y 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. o 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 Key Largo Wastewater Treatment facility are designed and permitted to C exceed full build out. 130. Ms. Jetton testified that, based on reports she has reviewed, when a) you inject effluent into shallow injection wells, that water will reach the r 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 C Commission's 1995 Final Order that deep water injection wells are a better 20 form of treatment than shallow injections wells. Finally, Ms. Jetton pointed M C to the 2014 and 2017 FKNMS reports as evidence that shallow well injections LL may contribute to nutrients in nearshore waters. a' 131. The excerpt of the 2014 report introduced in evidence contains no LU reference to a relationship between shallow injection wells and the water a) E U 24 Petitioners concede that deep injection wells have no quantified impact on the water quality of the nearshore waters of Key West or the Florida Keys. 41 Exhibit"A" Packet Pg.4 T,71 S.2k quality of nearshore waters. The 2017 report mentions there may be a connection. o .2 CL 132. Respondents introduced the testimony of Michael C. Alfieri, who is a M licensed professional geologist, certified by the National Groundwater t� Association as a ground water professional, and certified by the American y r Institute of Hydrology as a professional registered hydrogeologist. Mr. Alfieri's main practice in Florida is in karst hydrogeology, and he is one r.0 M of the authors of the definitive text in Florida on karstology. M 133. Mr.Alfieri testified that the subsurface conditions in Marathon, as 0) 21 shown in the core samples and boring logs he personally reviewed, indicate M the presence of aquitards26 and semi-confining materials, including calcite .y 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 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 y r 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. M r 135. Mr.Alfieri testified that based on the advanced wastewater U as treatment facilities and injection wells used by Respondents, the depths of 0 the injection wells and their current level of usage, as well as the CL surrounding geological features, including the confining layers, which are horizontally transmissive, the additional residential units authorized by the M Plan Amendments would have no impact on nearshore waters of the Florida U. Keys. LU 25 Aquitards are materials that have a low potential to transmit water. Clay is the best LU material to serve as an aquitard given that it has high porosity and low permeability which makes it difficult for water to move through. 26 The parties stipulated that deep injection wells"do not have a quantified impact on the U water quality of the nearshore waters of Key West or the Florida Keys." 42 Exhibit"N' Packet Pg.4172 S.2k 136. The undersigned finds Mr.Alfieri's testimony more persuasive and reliable than Ms. Jetton's recounting of studies undertaken by other .2 r a professionals. M 137. On the theory that injected treated effluent contaminates the J nearshore waters of the Keys, Petitioners allege the Plan Amendments r render Respondents' comprehensive plans internally inconsistent with the C following policies, respectively: r.0 M Marathon U M g • Infrastructure Element ("IE") Goal 3-1: JE]nsure availability of 21 needed public facilities associated with wastewater disposal ... in a a manner that is environmentally sound and protects marine y 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 y maintenance and protection of ground, nearshore and offshore, water C quality[.]" 0 M • IE Objective 3-2.2: "[Marathon] shall regulate land use and U development to ... protect the functions of natural drainage features and groundwater from the impacts of wastewater systems." o CL Islamorada • FLU Goal 1-1, which provides in pertinent part, as follows: M The comprehensive Plan shall provide a growth U. management framework that ... encourages 0 LU 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 C resources ... [r]elies on ecological constraints to E establish limits for growth ... to ensure that human M induced activities do not diminish assets of our 43 Exhibit"A" Packet Pg.4173 S.2k unique coastal environment; and provides a sound basis for developing land use controls that ... protect coastal resources, including nearshore •0 CL waters, wetlands, grassbed flats, mangroves... and establish a basis for managing .. water cluality[J M to • ClE Goal 6-1; "Isla ora .a ... shall ll conserve, manage, use and protect y the natural and environmental resources m„ based on their carrying capacity limitations to ensure continued resource availability and o r M environmental quality." M g C"E Objective -1.9: "Isla ora. a „. shall provide requirements 21 M designed to protect fisheries, wildlife and wildlife habitat from the adverse impacts of development,by regulating the location, density and intensity of those activities that cause the adverse impact." U 0 I ev West l'LU foal 1-1® "Minimize Threats To Health, Safety, And Welfare Which May Be Caused y Incompatible Land Uses, Environmental y r l,}t', radation[J"27 0 E CME Goal 5-1- "Coastal Management. Restrict development activities r that would damage or destroy coastal resources. Protec;t human lit(- and limit public expenditures in areas subject to destruction by natural 0 dis asters[J" CL 0 ME Objective -1°1. "Protect Coastal Resources, Wetlands, Estuarine M Salt Pond Environmental Quality, Living Marine Resources, And r- '. Wildlife Habitats. ... (1) Preventing potentially adverse impacts acts of LU development and redevelopment on wetlands, estuaries, water LU 27 Petitioners inaccurately cite the monitoring measure attributable to Objective 1-1.16 as if 0 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.4174 S.2k resources, living marine resources, and other natural resources; (2) Maintaining or improving coastal environmental quality by o r a improving stormwater management[.]" 0 M to • CME Policy 5-1.1.4: "Protect Living Marine Resources, Coastal Marsh, J and Seagrass Beds ... [Key West] shall seek to enhance seagrass beds and coastal nontidal wetland habitats[.]" .2 M • CME Policy 5-1.2.2: "[Key West] shall continue to limit the specific and g cumulative impacts of development and redevelopment upon water 21 M quality and quantity, wildlife habitat, and living marine resources by as enforcing performance standards cited herein. Wastewater system +� 0 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 protective policies for coral." y r • CME Policy 5-1.4.1: "Public Investments in Coastal High-Hazard Area. Publicly funded facilities shall not be built in the Coastal High-Hazard Area, unless the facility is for the protection of the public health and M safety." U as ®a • 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 . U. standards." LU 135. Respondents' wastewater treatment plants are in compliance with LU their DEP wastewater treatment plant and injection well permits. U r r 45 Exhibit"N' Packet Pg.4175 S.2k 139. Furthermore, there have been no violations of the permits for Respondents' wastewater treatment facilities that could potentially impair CL nearshore water quality. 140. As a condition precedent to issuing permits for Respondents' injection wells, DEP required Respondents to provide reasonable assurance that the y operation of the wells will not cause or contribute to a violation of surface water quality standards and will not harm environmental resources. o r 141. Petitioners did not prove that the Marathon Plan Amendment is M internally inconsistent with the Marathon Comprehensive Plan Goal 3-1, 21 Goal 3-2, and Objective 3.2.2. M 142. Petitioners did not prove the Islamorada Plan Amendment is .y internally inconsistent with Islamorada Comprehensive Plan Goal 1-1, o Goal 6-1, and Objective 6-1.9. cs 0 143. 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. y r 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 M r regard to habitat protection. U as 145. The FKCCS recommended four guidelines for future development in 6 the Keys: (1) prevent encroachment into native habitat; (2) continue andCL intensify existing programs (e.g., land acquisition, wastewater treatment); (3) focus future growth on redevelopment and infill; and (4) increase efforts to M manage the resources. U. 146. Since the FKCCS was published in 2002, the local governments in Lu the ACSC have completed numerous work programs designed to implement LU the recommendations, including updating habitat mapping, maximizing grant funding for land acquisition, and acquiring environmentally-sensitive lands to remove them from potential development. r 46 Exhibit"A" Packet Pg.4 6 S.2k 147. Furthermore, the BPAS system integrates environmental concerns when scoring applications for the units allocated. In Marathon, Policy 1-3.5.4 0 r a affords the greatest weight to applications for development of scarified and _0 M infill lots with existing paved roads, water, and electric service. The Plan J affords the least weight to applications on lots containing sensitive areas as y r 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 U g Hammock, Palm Hammock, Cactus Hammock, or Beach/Berm." ;, 148. The Key West comprehensive plan mandates that new development a preserve, at a minimum, "all wetlands and ninety (90) percent of hardwood y hammocks." The Key West plan does not allow development in any wetlands "except where State and/or federal agencies having jurisdiction provide for o development rights." o 3 149. 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 r 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, C as well as undisturbed mangrove and freshwater wetlands, the ratio is 1.0. The plan requires an open space ratio of.90 for disturbed saltmarsh and M buttonwood wetlands, as well as disturbed mangrove and freshwater U. LU wetlands. 150. Nevertheless, Petitioners argue that the Plan Amendments allow LU new units to be built in disturbed hammock, which constitutes additional encroachment into hammock, contrary to the FKCCS. Petitioners point to U the provision of the Plan Amendments which provides that the workforce 47 Exhibit"A" Packet Pg.4177 S.2k affordable units "shall not be placed in any habitat defined as mangroves, saltmarsh &buttonwood, hardwood hammock,[281 or fresh water wetlands .2 CL (disturbed categories excepted)[.]" M 151. The provisions of the Plan Amendments must be read together with t� existing comprehensive plan provisions. When read together, the Marathon y r comprehensive plan may not allow any of the affordable-early evacuation units to be built on any hammock habitat because it only allows one BPAS .0 M permit per year be allocated to any parcel containing designated hardwood M hammock. Since the Plan Amendment requires the units be built as 0 21 multifamily, thereby utilizing multiple allocations for one application, it is M impossible to permit the new affordable units on any lot designated hardwood .y hammock. 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 0 those lots with maximum disturbed areas. The Islamorada plan open space requirements will apply to disincentivize development of parcels with high y r quality hammock, buttonwood wetlands, and freshwater wetlands, by requiring the most stringent open space ratios. C 153. Petitioners did not prove the Plan Amendments are not based on M r data and analysis of the ecological carrying capacity of the Keys. U as 154. Petitioners allege that the Plan Amendments are internally 0 inconsistent with the following provisions of the Marathon and Islamorada CL plans relating to ecological concerns: Islamorada: M • GOAL 1-1:IMPLEMENT FUTURE LAND USE VISION, which reads, LL in pertinent part, as follows: 0 LU LU ........ .M......-...... r C 28 The Islamorada Plan Amendment refers to"tropical"hardwood hammock. 0 29 Only the Key West Plan Amendment exempts the allocation of the affordable-early U r evacuation units from the BPAS. 48 Exhibit"N' Packet Pg.4178 S.2k [Islamorada was] incorporated to create a Comprehensive Plan to reclaim the Keys by conserving, preserving, and retaining our CL 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 y resources; Relies on ecological constraints to establish limits for growth and create standards and criteria to ensure that human induced o r activities do not diminish assets of our unique coastal environment[.] g 21 • Policy 2-1.9.3: Participate in the Florida Keys Carrying Capacity M Study. ... "[Islamorada] shall continue to support the technical .y undertakings of this study, and the establishment of carrying capacity o limitations for the Florida Keys." U 0 • Goal 6-1: "Islamorada ... shall conserve, manage, use and protect the natural and environmental resources ... based on their carrying _ capacity limitations to ensure continued resource availability and environmental quality." • Policy 6-1.4.4: "Islamorada ... shall use the best available technical M r criteria and information to formulate regulations and ordinances U as which shall ensure that future development is compatible with the 0 functioning and carrying capacity of existing natural systems and CL resources conservation." Marathon 0 • Objective 1-2.1: which calls for adequate public facilities and services LL for future growth"to ... protect valuable natural resources...." LU 155. Petitioners did not prove the Marathon Plan Amendment is LU r internally inconsistent with Objective 1-2.1. U r r 49 Exhibit"A" Packet Pg.4 T971 S.2k 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 .2 Policy 6-1.4.4. o M Other Contentions Survevs Studies. and Data y 157. Petitioners alleged the Plan Amendments violate section 163.3177(6)(a)2., which reads, in pertinent part, as follows: ro 2. [P]lan amendments shall be based upon surveys, studies, and data regarding the area, as applicable, including: M a. The amount of land required to accommodate anticipated growth. 0 b. The projected permanent population of the area. U 0 c. The character of undeveloped land. 0 3 d. The availability of water supplies, public facilities, and services. y r C e. The need for redevelopment, including renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with the character of the community. r U f. The compatibility of uses on lands adjacent to or closely proximate to military installations. ii 0 M . g. The compatibility of uses on lands adjacent to an airport[.] 20 h. The discouragement of urban sprawl. - i. The need for job creation, capital investment, and Lu economic development that will strengthen and diversify the community's economy. LU j. The need to modify land uses and development patterns with antiquated subdivisions. M (emphasis added). 50 Exhibit"A" Packet Pg.4T80 S.2k 158. Many of the listed criteria are not applicable to the Plan Amendments because the Plan Amendments do not propose a specific type of .2 CL development at a specific location, do not implicate antiquated subdivisions, ®a° M and do not specifically implicate redevelopment of blighted areas. J 159. Respondents considered the availability of water supplies and other y r public services, such as the capacity of wastewater treatment facilities, C during plan review and adoption. Respondents also considered the need of M the service sector of the economy—including retail and restaurant services, U g as well as public school and first-responder services—during plan review and 21 adoption. M as 160. Petitioners did not prove the Plan Amendments are not based upon y applicable surveys, studies, and data as required by section 163.3177(6)(a)2. Meanin-ful and Predictable Standards 0 161. Petitioners allege the Plan Amendments violate section 163.3177(1), o 3 which requires, among other things, that"the plan shall establish meaningful and predictable standards for the use and development of land[.]" y r 162. First, Petitioners focus on the language of the Plan Amendments a) which requires location of the workforce-affordable housing to"ensure a) E accessibility to employment centers and amenities." Petitioners argue that, M r because none of the Plan Amendments define either"employment center" or "amenity," these standards are not meaningful to identify those sites which 0 would qualify for development under the Plan Amendments. 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 0 C contain a definition section, would be rendered meaningless. That simply U. cannot be the case. 164. Both the Key West and the Islamorada comprehensive plans employ the same phrasing in other parts of the existing plan as used in the Plan a) Amendments. In Policy 3-1.5.2, Islamorada provides that"sites for affordable U housing ... shall be approved only if such sites [are] ... [a]ccesible to 51 Exhibit"A" Packet Pg.4181 S.2k employment centers[.]" The Key West comprehensive plan uses the same exact language in Policy 3-1.1.7 for siting affordable housing generally, and .2 CL in Policy 3-1.1.11 for siting housing for low- and moderate-income households particularly. Clearly, determining whether the housing provided for in the Plan Amendments is "accessible to employment centers" will not be a novel y undertaking, at least not for planners in Key West and Islamorada where that same standard has been successfully applied to siting affordable housing o r M prior to the Plan Amendments. M 165. The Marathon comprehensive plan does not employ the same terms. 0) 21 Yet, Mr. Garrett had no difficulty identifying Old Town as an employment M center in Marathon. In fact, Mr. Garrett identified all the City's employment .y centers as being located generally between Coco Plum and the Seven Mile Bridge. As for determining whether the housing authorized under the Plan 0 Amendment will be "accessible" to an employment center, Petitioners complain that there is "no spatial or temporal requirement whatsoever." To be fair, accessibility, as used in this context, is a subjective term. However, y r Mr. Garrett explained that accessibility is not limited to distance alone. As an example, he testified that housing located a mile-and-a-half from an employment center in Marathon is accessible by bus routes that run M r throughout the day. U as 166. Petitioners contend that the language is not meaningful because the 6 term "amenities" is also not defined in the Plans. In their ProposedCL Recommended Order, Petitioners state, "It is unknown whether this term means anything over and above required concurrency facilities." M 167. When a legislative term is not specifically defined, it must be givenU. its plain and ordinary meaning. See Greenfield v. Daniels, 51 So. 3d 421, 426 LU (Fla. 2010) (citing Sch. Bd. of Palm Beach Cty. v. Survivors Charter Schs., LU Inc., 3 So. 3d 1220, 1233 (Fla. 2009) (quoting Fla. Birth-Related Neurological Injury Comp. Assn v. Fla. Div. of Admin. Hrgs., 686 So. 2d 1349, 1354(Fla. 1997))). It is appropriate to refer to a dictionary definition to ascertain the Q 52 Exhibit"X Packet Pg.4182 S.2k plain and ordinary meaning of legislative terms. See Survivors Charter Schs., 3 So. 3d at 1233. o .2 CL 168. The definition of"amenity" is "something that helps provide comfort, -a° M convenience, or enjoyment."Merriam-Webster.com, at www.merriam- webster.com/dictionary/amenity (accessed Sept. 15, 2020). In context, then, y r 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. M Common sense examples are gas stations, convenience stores, and banks. U g 169. Petitioners did not prove that the phrase "ensure accessibility to ;, employment centers and amenities" fails to provide meaningful and a predictable standards for the use and development of land under the Plan y Amendments. 170. Next, Petitioners contend that the requirement to "incorporate 0 sustainable and resilient design principles into the overall site design" of the workforce-affordable housing is meaningless. In support of this contention, Petitioners introduced the brief, conclusory statement by Ms. Jetton that y r those terms are meaningless because they are undefined.As stated above, lack of a definition alone does not render the terms meaningless, and it is found that they are not. M r 171. Petitioners did not prove that the Plan Amendments' direction to "incorporate sustainable and resilient design principles" fails to provide 0 meaningful and predictable standards for the use and development of land CL under the Plan Amendments. 172. Finally, Petitioners make a variety of arguments to establish that the 0 Plan Amendments do not provide meaningful standards to ensure LL enforcement of(1) use of the units for workforce-affordable housing, andLU (2) early evacuation of those units. LU 173. Petitioners allege that the Plan Amendments "do not require the units or the residents to meet any affordable housing criteria, or adopt by U reference any such requirements." Ms. Jetton testified that, because the Plan 53 Exhibit"A" Packet Pg.4T83 S.2k Amendments do not include, or otherwise adopt, HUD income guidelines, they will not produce affordable housing. CL 174. The Plan Amendments require the use of deed restrictions to ensure: M to (i) the property remains workforce-affordable J housing in perpetuity; .E (ii) tenants evacuate during the period in which o transient units are required to evacuate; M U (iii) rental agreements contain a separate disclosure requiring renters to acknowledge that failure to adhere to the evacuation requirement M could result in severe penalties, including eviction, to the resident; and 0 (iv) on-site property managers are formally trained in evacuation procedures.[30] `0 0 175. Petitioners allege that because the term "workforce-affordable housing" is undefined, there is no mechanism to ensure that the housing built y r pursuant to the Plan Amendments will be reserved for persons with particular income limits. C 176. As previously discussed, a term is not meaningless just because it is M r undefined in the Plan Amendment. The Key West comprehensive plan U as defines the term "affordable housing" according to HUD standards, as a unit 0 for which"a household spends no more than 30 percent of its gross income onCL housing costs." While the term is not specifically defined in the Islamorada and Marathon plans, both jurisdictions implement affordable housing M programs established in their plans through more specific land developmentLL regulations which establish income limitations for that housing.As those Lu plans are already in compliance, they cannot be said to lack meaningful and LU predictable standards. 0) so The Key West Plan Amendment does not include this provision. 54 Exhibit"A" Packet Pg.4184 S.2k 177. Mr. Garrett testified that the term workforce would be given its plain and ordinary meaning persons employed within the County. Thus, o r CL workforce-affordable housing units are reserved for members of the workforce -a° M who meet the previously-established definitions of affordable housing used to J implement the local governments' existing programs. y r 178. Petitioners' attack on the enforcement of the early evacuation requirement is, again, grounded in a lack of defined terms, as well as M speculation that the provisions are unenforceable. Ms. Jetton speculated that U g most residents of this housing would be either unable or unwilling to 21 evacuate early, and that the Plan Amendment language has no teeth to a ensure early evacuation. She testified that the language is permissive— y "failure to adhere to evacuation requirements could result in severe penalties"—meaning it may not be enforced at all. According to her, because o the term "severe penalties" is also undefined, the entire provision is meaningless to enforce the early evacuation requirement. 179. Mr. Garrett testified that the enforcement of penalties would be the y r 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 r the effectiveness and enforcement of the "early-evacuation pool" established therein. The Plan Amendments require each local government to report to 0 DEO annually documenting the number of workforce-affordable housing CL units built, the occupancy rates thereof, and compliance with the early 20 evacuation requirement. Should there be any enforcement issues, the state M can make refinements in the program. Further, data regarding either lack of LL 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 U housing units or early evacuation thereof. 55 Exhibit"A" Packet Pg.4T85 S.2k CONCLUSIONS OF LAW 182. The Division of Administrative Hearings has jurisdiction over the CL subject matter and parties hereto pursuant to sections 120.569, 120.57(1), 0 0 and 163.3184(5), Florida Statutes (2019). t� 183. To have standing to challenge or support a plan amendment, a y 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 o r 0 action pursuant to 163.3184(1)(a). 0 185. "In compliance" means "consistent with the requirements of 21 §§ 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, and 163.3248, with the M appropriate strategic regional policy plan, and with the principles for guiding .y development in designated areas of critical state concern and with part III of chapter 369 where applicable." § 163.3184(1)ro) Fla. Stat. 0 o 186. Respondents' determinations that the Plan Amendments are "in compliance" are presumed to be correct and must be sustained if the determinations of compliance are fairly debatable. See § 163.3184(5)(c), Fla. y r Stat. 187. "The `fairly debatable' rule is a rule of reasonableness; it answers the 0 question of whether, upon the evidence presented to the [government] body, M the [government's] action was reasonably-based." Lee Cty. v. Sunbelt U as Equities, II, Ltd. P'ship, 619 So. 2d 996, 1002 (Fla. 2d DCA 1993) (citing 6 Town of Indialantic v. Nance, 400 So. 2d 37, 39 (Fla. 5th DCA 1981)). CL 188. The mere existence of contravening evidence is not sufficient to establish that a land planning decision is "fairly debatable." It is firmly M established that: LL [E]ven though there was expert testimony adduced LU in support of the City's case, that in and of itself does not mean the issue is fairly debatable. If it did, LU every zoning case would be fairly debatable and the City would prevail simply by submitting an expert who testified favorably to the City's position. Of M course that is not the case. The trial judge still r 56 Exhibit"A" Packet Pg.4T86 S.2k 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 0 CL weight or credibility to the City's witnesses. M t� Boca Raton v. Boca Villas Corp., 371 So. 2d 154, 159 (Fla. 4th DCA 1979). J 189. 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 M 190. Petitioners allege, as grounds for finding the Plan Amendments not g "in compliance," that the Plan Amendments are inconsistent with the MOU. 21 M Petitioners' allegations of inconsistency with the MOU are not well taken. Only those specific items listed in the statutory definition of"in compliance" 0 may form the basis for finding the Plan Amendments not"in compliance." See Consol. Citrus v. Martin Cty., Case No. 13-3393 (Fla. DOAH Jan. 23, 2013, Order on Respondent's Mot. in Lim. or in the Alter. Mot. to Strike) (whether plan amendment is consistent with sections 163.3162, 193.461, 823.14, Florida Statutes, and Florida Administrative Code Rules 62B-33 and 40E-8 are not compliance issues); Cemex Constr. Materials Fla. v. Lee Cty., Case E No. 10-2988 (Fla. DOAH Feb. 21, 2012; Fla. DCA Apr. 10, 2012) (whether E E M plan amendment is consistent with section 337.0261(3), Florida Statutes, is U not a compliance criterion); Monkus v. City of Miami, Case No. 04-1080 (Fla. DOAH Sept. 3, 2004; Fla. DCA Oct. 26, 2004) (consistency with land o CL development regulations is not a compliance issue); Emerald Lakes Residents' Ass'n v. Collier Cty., Case No. 02-3090 (Fla. DOAH Feb. 10, 2003; Fla. DCA May 8, 2003) (whether plan amendment was adopted in conformity with - procedural requirements of section 163.3185(15)(c) is not a compliance issue); LU Current v. Town of Jupiter, Case No. 03-0718 (Fla. DOAH Oct. 24, 2003; Fla. DCA Apr. 9, 2004) (whether plan amendment conflicts with local government LU r resolution is not a compliance issue); Durham Park Neighborhood v. City of Miami, Case No. 06-0759 (Fla. DOAH May 24, 2006 Order Granting Leave to U M r r Q 57 Exhibit"A" Packet Pg.4T87 S.2k Amend but Striking Portions of Amended Pet.) (striking Petitioners' claims that plan amendment is not consistent with Florida Administrative Code .2 CL Rule 9J-11 because the provisions are not compliance criteria); and Pyle v. City of St. Pete Beach, Case No. 08-4772 (Fla. DOAH Jan. 28, 2009, Order on Mot. to Strike) (requirement to submit a"complete" plan amendment package y r pursuant to section 163.32456 is not a compliance issue). 191. If the MOU was adopted by reference in Respondents' comprehensive o r M plans, Petitioners' argument might have had merit. However, none of the M comprehensive plans adopts the MOU by reference. The MOU is a separate 21 stand-alone document which may be amended by agreement of the parties, M as outside of the statutory plan amendment process. y Internal Inconsistences 0 192. Section 163.3177(2) mandates"the several elements of the 2 0 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 y r 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 M r Amendments are inconsistent with section 163.3177(2). U as Data and Analvsis 6 195. Section 163.3177(1)(f requires plan amendments to be "based uponCL relevant and appropriate data and analysis" by the local government, and includes "surveys, studies, community goals and vision, and other data M available at the time of adoption." U. 196. To be based on data"means to react to it in an appropriate way and LU 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.4 88 S.2k 197. Based upon the foregoing Findings of Fact, Petitioners did not prove the Plan Amendments are not supported by adequate data and analysis, or o r a fail to react to professionally-acceptable data in an appropriate way, M 198. Petitioners did not prove beyond fair debate that the Plan J Amendments are inconsistent with section 163.3177(1)(f). y r Principles for Guiding Development E 199. "In compliance" is defined to include consistency with the Principles, M which apply to both Marathon and Islamorada.31 Petitioners alleged the Plan U g Amendments are inconsistent with section 380.005(9), which requires plan ;, amendments comply with the requirement to "maintain® a hurricane a evacuation clearance time for permanent residents of no more than 24 hours." y Based on the foregoing Findings of Fact, it is at least fairly debatable that the Plan Amendments will not cause evacuation clearance time of the ACSC to 0 exceed the 24-hour evacuation clearance time. o 3 200. Furthermore, the Principles "may not be construed or applied in isolation," but must be "construed as a whole." § 380.0552(7), Fla. Stat. The y r 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 r 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 0 housing, which has a documented impact on the Keys' economy. The need to 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 0 and its citizens through sound economic development." § 380.0552(7)(d), Fla. U. Stat. LU 201. With regard to Key West, Petitioners urge the Plan Amendment is >� LU inconsistent with Florida Administrative Code Rule 28-36.003(1)(a), (h), and E U 31 The Principles for Guiding Development in the Key West ACSC make no reference to r hurricane evacuation clearance times. See Fla.Admin. Code R.28-36.003. 59 Exhibit"A" Packet Pg.4T89 S.2k (2)(a)7., which require plan amendments to "[s]trengthen local government capabilities for managing land use and development"; "[p]rotect ... the public .2 health, safety, welfare, and economy of the City of Key West, and [maintain] o Key West as a unique Florida Resource"; and adopt an"evacuation plan consistent with regional and [Monroe] County plans ... which provides an y opportunity for residents and visitors to evacuate to a place of safety during a natural disaster," respectively. o r 202. Based upon the foregoing Findings of Fact, Petitioners did not prove M beyond fair debate that the Key West Plan Amendment is inconsistent with 0) 21 the listed Principles. M as Other Contentions 203. Petitioners raised additional arguments, which were likewise not proven beyond fair debate. o 0 204. Petitioners alleged the Plan Amendments violate section 163.3177(6)(a)2., which requires consideration of specifically-fasted types of data and analysis for adoption of plan amendments. Respondents considered y r 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 M public school and first-responder services—during plan review and adoption. U as 205. Based on the foregoing Findings of Fact, Petitioners did not prove, 6 beyond fair debate, that the Plan Amendments are inconsistent with sectionCL 163.3177(6)(a)2. 206. Petitioners contend the Plan Amendments were inconsistent with M section 163.3177(6)(a)8., which requires, as follows: LL 8. Future land use map amendments shall be based LU upon the following analysis: LU a. An analysis of the availability of facilities and services. U r r Q 60 Exhibit"A" Packet Pg.4 90 S.2k b. An analysis of the suitability of the plan amendment for its proposed use considering the character of the undeveloped land, soils, CL topography, natural resources, and historic 0 resources on site. (emphasis added). J 207. The cited statutory section is inapplicable to the Plan Amendments y r because they are not future land use map amendments. 208. Petitioners also contend the Plan Amendments were inconsistent •0 r M with the requirement in section 163.3177(l) that local government U comprehensive plans "shall establish meaningful and predictable standards 21 for the use and development of land[." Based on the foregoing Findings of as Fact, Petitioners did not carry.their burden of proof with respect to that y issue. 0 Conclusion 0 209. For the reasons stated above, Petitioners have not proven beyond fair o 3 debate that the Plan Amendment is not"in compliance," as that term is defined in section 163.3184(1)(a). r RECOMMENDATION E Based on the foregoing Findings of Fact and Conclusions of Law, it is r RECOMMENDED that the Department of Economic Opportunity enter a final order determining the City of Marathon Comprehensive Plan Amendment 0 2018-01, adopted on October 23, 2018; City of Key West Comprehensive Plan CL Amendment 19-06, adopted on April 4, 2019; and Islamorada, Village of Islands, Comprehensive Plan Amendment 19-03, adopted on March 5, 2019; 0 are "in compliance," as that term is defined in section 163.3184(1)(b). U. LU LU r E U r r 61 Exhibit"A" Packet Pg.4T97171 S.2k DONE AND ENTERED this 25th day of September, 2020, in Tallahassee, Leon County, Florida. o CL 0 SUZANNE VAN WYK J Administrative Law Judge y Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 g Fax Filing (850) 921-6847 www.doah.state.fl.us M Filed with the Clerk of the a Division of Administrative Hearings this 25th day of September, 2020. cs 0 COPIES FURNISHED: 0 3 Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. y Suite C 61 Northeast 1st Street E E Pompano Beach, Florida 33060 (eServed) E r Sarah M. Hayter, Esquire U Robert N. Hartsell, P.A. Suite C 0 61 Northeast 1st Street CL Pompano Beach, Florida 33060 (eServed) 20 0 Shai Ozery, Esquire Robert N. Hartsell P.A. U. Suite C LU 61 Northeast 1st Street Pompano Beach, Florida 33060 >� LU (eServed) M U r r Q 62 Exhibit"N' Packet Pg.4 92 S.2k Barton William Smith, Esquire Law Firm of Smith Hawks, PL 138 Simonton Street 0 CL Key West, Florida 33040 (eServed) M t� Christopher B. Deem, Esquire y Law Firm of Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) M U M Nicola J. Pappas, Esquire 21 Law Firm of Smith Hawks, PL M 138 Simonton Street as Key West, Florida 33040 y (eServed) 0 Richard J. Grosso, Esquire Richard Grosso P.A. Mail Box 300 3 6511 Nova Drive Davie, Florida 33317 (eServed) y Shawn D. Smith, City Attorney City of Key West, City Attorney's Office 1300 White Street M Post Office Box 1409 Key West, Florida 33040 (eServed) 0 CL George B. Wallace, Esquire City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 0 Key West, Florida 33040 LL (eServed) 0 LU Roget V. Bryan, Esquire LU Islamorada, Village of Islands 86800 Overseas Highway Islamorada, Florida 33036 E (eServed) U r r Q 63 Exhibit"A" Packet Pg.4T93 S.2k Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building o CL 107 East Madison Street �° Tallahassee, Florida 32399-4128 M t� (eServed) J Dane Eagle, Executive Director y Department of Economic Opportunity Caldwell Building r•2 107 East Madison Street Tallahassee, Florida 32399-4128 g (eServed) 21 M Mark Buckles, Interim General Counsel Department of Economic Opportunity y Caldwell Building, MSC 110 0 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) O 3 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. M r U as ®a 0 a 0 LL LU LU r U r r Q 64 Exhibit"A" Packet Pg.419�4 S.2J 1 18 v 2 ' 3 l� 4 \ ` 5 6 MONROE COUNTY, FLORIDA 7 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS 8 9 ORDINANCE NO. -2021 10 11 A RESOLUTION BY THE MONROE COUNTY PLANNING COMMISSION 12 RECOMMENDING APPROVAL OF AN ORDINANCE BY MONROE 13 COUNTY BOARD OF COUNTY COMMISSIONERS ADOPTING 14 AMENDMENTS TO THE MONROE COUNTY LAND DEVELOPMENT N 15 CODE AMENDING THE SECTION 138-24, RESIDENTIAL ROGO 16 ALLOCATIONS, TO ESTABLISH A NEW BUILDING PERMIT 17 ALLOCATION CATEGORY TO AWARD 300 WORKFORCE HOUSING 18 EARLY EVACUATION UNIT BUILDING PERMIT ALLOCATIONS 19 PURSUANT TO THE WORKFORCE-AFFORDABLE HOUSING 20 INITIATIVE (WORKFORCE INITIATIVE) AUTHORIZED BY THE 21 FLORIDA ADMINISTRATION COMMISSION AND THE FLORIDA 22 DEPARTMENT ECONOMIC OPPORTUNITY AND TO ESTABLISH THE 23 SPECIFIC WORKFORCE INITIATIVE REQUIREMENTS; PROVIDING 24 FOR SEVERABILITY; PROVIDING FOR REPEAL OF CONFLICTING 25 PROVISIONS; PROVIDING FOR TRANSMITTAL TO THE STATE LAND 26 PLANNING AGENCY AND THE SECRETARY OF STATE; PROVIDING 27 FOR AMENDMENT TO AND INCORPORATION IN THE MONROE 28 COUNTY LAND DEVELOPMENT CODE; PROVIDING FOR AN c 29 EFFECTIVE DATE. (FILE NO. 2020-068) CD 30 W 31 32 WHEREAS,pursuant to Article 8 of the Florida Constitution and Section 125.66, Florida 33 Statutes, Monroe County possesses the police powers to enact ordinances in order to protect the 34 health, safety, and welfare of the County's citizens; and 35 36 WHEREAS, Florida Statute § 380.0552., the Florida Keys Area protection and 37 designation as area of critical state concern, establishes the intent to"ensure that the population of a� 38 the Florida Keys can be safely evacuated", Florida Statute § 380.0552(2)(j), and requires that 39 amendments to each local government's comprehensive plan to include "goals, objectives, and 40 policies" to protect public safety and welfare in the event of a natural disaster by maintaining a 41 hurricane evacuation clearance time for permanent residents of no more than 24 hours; and 42 43 WHEREAS,the County adopted a Permit Allocation System known as the Rate of Growth 44 Ordinance (ROGO) in order to provide for the safety of residents in the event of a hurricane 45 evacuation and to protect the significant natural resources of Monroe County, as required by the 46 State of Florida; and 47 Ordinance No. -2021 Page 1 of 12 File 2020-068 Packet Pg.4195 S.2J I WHEREAS, on May 2, 2018, Governor Rick Scott issued a press release outlining an 2 initiative to the Florida Department of Economic Opportunity ("DEO") for a Keys Workforce 3 Housing Initiative to allow 1,300 additional Rate of Growth Ordinance allocations ("ROGO 4 allocations") throughout the Florida Keys for rental workforce housing, with a condition that the 5 rental occupants evacuate in the early phase (48-hour window) of a hurricane evacuation; and 6 7 WHEREAS, on June 13, 2018, the Florida Administration Commission approved the 8 Workforce Housing Initiative, after presentation by DEO that the Phase I evacuation (under the 9 existing staged evacuation plan) can be accomplished in 17.5 hours, leaving additional capacity of 10 6.5 hours in Phase I; and 11 c 12 WHEREAS,the Florida Keys face the quadruple impact of high land values, land limited 13 by geographic and environmental features,housing supply limited by controlled growth(including 14 but not limited to the Rate of Growth Ordinance) and a tourism economy with a prevalence of 15 lower paying service-sector employment; and 16 17 WHEREAS, the need to protect and preserve an adequate inventory of c 18 affordable/workforce accessible housing is a continual as well as a growing challenge in the 19 Florida Keys,particularly after the impacts of Hurricane Irma which caused significant damage to 20 housing units throughout the Florida Keys; and 21 22 WHEREAS,on September 19,2018,the Monroe County Board of County Commissioners 23 ("BOCC", "Monroe County", or the "County") directed County staff to draft proposed policy 24 alternatives to the State's Keys Workforce Housing Initiative that address several concerns raised 0 25 related to the enforceability of the evacuation provisions; and 26 27 WHEREAS, on January 30, 2019, the BOCC considered options to accept the 300 units 28 but took no official action; and c 29 CD 30 WHEREAS, on January 22, 2020, the BOCC directed staff to prepare an agenda item to 31 discuss and provide direction on whether to direct staff to process Comprehensive Plan and Land 32 Development Code amendments to: j) Move a portion of market-rate ROGO units to the 33 affordable housing allocation pool and/or 2) Accept the 300 Workforce Housing units offered by =� 34 the Department of Economic Opportunity required to evacuate in Phase 1 of the Hurricane 35 Evacuation model; and 36 37 WHEREAS, on February 19, 2020,the BOCC discussed whether to direct staff to process 38 a comprehensive plan and land development code amendment to: L Move a portion of the 378 E 39 remaining Market Rate -Rate of Growth Ordinance(ROGO)units through 2026 to the Affordable 40 Housing allocation pool and/or 2) Accept the 300 Workforce Housing units offered by the DEO < 41 required to evacuate in Phase 1 of the hurricane evacuation model. The BOCC did not decide on 42 the potential shifting of market rate allocations to the affordable housing pool but did direct staff 43 to start the process to accept the 300 workforce housing units; and 44 45 WHEREAS, on July 15, 2020, during a discussion item on potentially shifting market rate 46 allocations to the affordable housing pool, the BOCC provided further direction to staff on 47 accepting the 300 workforce housing early evacuation unit building permit allocations. The BOCC Ordinance No. -2021 Page 2 of 12 File 2020-068 Packet Pg.4196 S.2J I directed: Accept the 300 workforce housing early evacuation unit building permit allocations to 2 be used in exchange for existing affordable allocations at multifamily developments (for 3 developers that agree to the early evacuation restriction) and the affordable housing allocations 4 returned to the County (returned in the exchange)be set aside and banked for takings cases (bank 5 them within an administrative relief pool); and 6 7 WHEREAS, Monroe County policies and regulations adopted in the Monroe County 8 Comprehensive Plan and Land Development Code are to maintain public health, safety, and 9 welfare of the citizens of the Florida Keys and to strengthen our local government capability to 10 manage land use and development; and 11 c 12 WHEREAS,the Monroe County Development Review Committee("DRC")reviewed and 13 considered the proposed amendments at a regularly scheduled meeting held on the August 25, 14 2020; and ' N 15 16 WHEREAS, at a regularly scheduled meeting held on October 28, 2020, the Monroe County 17 Planning Commission held a public hearing for the purpose of considering the proposed c 18 amendment and provided for public comment; and 19 20 WHEREAS, the Monroe County Planning Commission adopted Resolution No. P 30-20, 21 recommending approval for the proposed amendment, with edits identified in the resolution; and 22 23 WHEREAS, at a regularly scheduled meeting held on April 21, 2021, the Monroe County 24 Board of County Commissioners held a public hearing, considered the staff report, and provided 0 25 for public comment and public participation in accordance with the requirements of state law and 26 the procedures adopted for public participation in the planning process; and 2 27 28 WHEREAS, based upon the documentation submitted and information provided in the c 29 accompanying staff report, the Monroe County Board of County Commissioners makes the 30 following findings of fact and conclusions of law: 31 32 1. The proposed amendment is consistent with the Goals, Objectives and Policies of the 33 Monroe County Year 2030 Comprehensive Plan; and 34 2. The proposed amendment is consistent with the Principles for Guiding Development 35 for the Florida Keys Area of Critical State Concern, Florida Statute § 380.0552(7); and 36 3. The proposed amendment is consistent with Part 11 of Chapter 163, Florida Statutes, 37 and m 38 4. The proposed amendment is necessary due to new issues and the need for additional 39 detail or comprehensiveness, as required by Section 102-158 of the Monroe County 40 Code. < 41 42 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY 43 COMMISSIONERS OF MONROE COUNTY, FLORIDA: 44 45 Section 1. Recitals and Legislative Intent. The foregoing recitals and statements of 46 legislative intent are true and correct and are hereby incorporated as if fully stated herein. 47 Ordinance No. -2021 Page 3 of 12 File 2020-068 Packet Pg.4197 S.2J I Section 2. The Monroe County Land Development Code is hereby amended as follows: 2 Proposed Amendment: deletions are stfi ke *h- additions are shown in underlined. 3 4 5 Sec. 138-24. -Residential ROGO Allocations. 6 (a) Number of available annual residential ROGO allocations. The number of market rate 7 residential ROGO allocations available in each subarea of the unincorporated county and the o 8 total number of affordable residential ROGO allocations apc�___workf`orce,___li.ousin� e���lv 9 evacuation mL it allocations available countywide shall be as follows: � 10 c, Number of D elling Units Subarea ROGO Years: ROGO Years: N July 13, 2020-July 12, 2021 July 13, 2023-July 12, 2024 July 13, 2021-July 12, 2022 July 13, 2024-July 12, 2025 July 13 2022-July 12 2023 July 13 2025-July 12 2026 c Upper Keys 31 30 Lower Keys 29 28 Big Pine and No Name Keys 4 4 Total market rate 64 62 Affordable Dwelling Units Very Low, Low, and Median Incomes 360 0 Moderate Incomes 350* *Includes one annually for Big Pine Key and No Name Key 0 Workforce Initiative 3 -r.-r: CD ** Work fozcc ..taus r 7 c. zly cvaCUatiarl Urlit alloc;atioris small lac distributed on a first-come first-serve W .jisi R guc sts far deb�llrrr47 trrrrts do�c la ec� rrrci/az cic c c� zc Stzrctc c��rtil���rrC7 the e�orkfaz c r ��aus�r�C7.,early � c� tau re ar urt t llocatlarrs ar sulr c c t to tlrc nravisiarrs of Palrc v._l`}1..3...12 nc c c t ar 13.E 2 . c 11 Annual Allocation U ROGO Year Workforce Affordable Market Rate Initiative Housing July 13, 2013—July 12, 2014 126 71 U: 61, L: 57, BPK/NNK 8 July 13, 2014—July 12, 2015 126 71 U: 61, L: 57, BPK/NNK 8 July 13, 2015—July 12, 2016 126 N/A U: 61, L: 57, BPK/NNK 8 July 13, 2016—July 12, 2017 126 U: 61, L: 57, BPK/NNK 8 i July 13, 2017—July 12, 2018 126 Ordinance No. -2021 Page 4 of 12 File 2020-068 Packet Pg.4198 S.2J U: 61, L: 57, BPK/NNK 8 126 126 568 total AFH July 13, 2018-July 12, 2019 (total available U: 61, L: 57, BPK/NNK 8 immediately) July 13, 2019-July 12, 2020 126 U: 61, L: 57, BPK/NNK 8 July 13, 2020-July 12, 2021 64 U: 31, L:29, BPK/NNK: 4 July 13, 2021-July 12, 2022 64 0 U: 31, L:29, BPK/NNK: 4 0 July 13, 2022-July 12, 2023 64 U: 31, L:29, BPK/NNK: 4 U July 13, 2023-July 12, 2024 62 3 ** U: 30, L:28, BPK/NNK: 4 July 13, 2024-July 12, 2025 62 U: 30, L:28, BPK/NNK: 4 c July 13, 2025-July 12, 2026 62 U: 30, L:28, BPK/NNK: 4 TOTAL 1,260 3 ** 710* *Includes two annual affordable ROGO allocations for the Big Pine Key/No Name Key subarea) through the Incidental Take Permit(ITP) ending in 2023. C ** Workforce hoUs'IU,..c t first-come first-serve _........ , sis F�c c nests for cle clltnC7 tlrt�ts cic�c lapse LWl g c���c r stric-t c U l z r C7 tide workforce ho s�r�g �i �y'!, � evaCUatiorl Wilt allocatiorts etc sulr cct to tl c nzavlsiarts of Paltcv_l`}l 3 l2 r c c c io .J 38-2. .c(� c 4- 1 c 2 The State of Florida, pursuant to Administration Commission Rules, may modify the annual 3 allocation rate The County mad( ted a slower rate of` annual allocations for Market rate 4 develt�pt ent to extend the allocation ttt efra e to 2026 without exceed ng the total of l A................. � 5 allocations, By July 12, 2023_mif substantial financial support is provided by State and � m _._________ 6 Federal partners, the County may reevaluate the ROGO distribution allocation schedule and 7 consider an extended timeframe for the distribution of market rate allocations. If necessary, 8 Monroe County will request a Rule change from the Administration Commission to authorize 9 an alternative allocation timeframe and rate. 10 (1) Yearly residential ROGO allocation ratio. Each subarea shall have its number of market 11 rate residential ROGO allocations available per ROGO year. Affordable ROGO E 12 allocations and workforce fro sini4 early evacuation unit allocations shall be available for � 13 countywide allocation except for Big Pine Key and No Name Key. The allocations for < 14 Big Pine Key and No Name Key shall be limited to maximums established in Big Pine 15 Key/No Name Key Livable CommuniKeys Plan, Incidental Take Permit and Habitat 16 Conservation Plan. 17 (2) Quarterly residential ROGO allocation ratio. Each subarea shall have its number of 18 market rate housing residential ROGO allocations available per ROGO quarter 19 determined by the following formula: Ordinance No. -2021 Page 5 of 12 File 2020-068 Packet Pg.4199 S.2J I a. Market rate residential ROGO allocations available in each subarea per quarter is equal 2 to the market rate residential ROGO allocations available in each subarea divided by 3 four. 4 b. Affordable housing residential ROGO for all four ROGO quarters, including the 5 allocations available for Big Pine Key, shall be made available at the beginning of 6 the first quarter for a ROGO year. Beginning July 13, 2016, the balance of all 7 remaining affordable housing residential ROGO allocations shall be made available 8 for award. 9 c:. Workforce allocations shall be made available at the beginning of the first 10 clLarter cif` RC3C.�C3 yea July 13. 2021_ JulV__12 2022_ _ill allocations sha11___be 11 available fc>r award. and shall be distributed on a first-cone first-serve basis. 12 RmeniLlests__f`t.)r__workft.)rce Ii-oumsing_early evacuationunit allocations s1�ma11 reclLllre_m� � 13 reservation via.BOC C'resolution m m m 14 (3)Ratio ofvery low income, low income, and median income allocations to moderate income 15 allocations. The Planning Commission may amend these proportions for affordable 16 housing during any ROGO quarter. 17 (4)Big Pine Key and No Name Key. 2 18 a. All allocation awards on Big Pine Key and No Name Key are subject to the provisions 19 of the Incidental Take Permit (ITP), the Habitat Conservation Plan (HCP) and 20 Livable CommuniKeys Plan (LCP) for the Florida Key Deer and other covered 21 species, which may affect ROGO allocations under this article. 22 b. In the Big Pine Key/No Name Key sub-area the annual maximum number of residential 23 permit allocations that may be awarded in Tier I shall be no more than one (1) every 24 2 years. Until the ITP, HCP, Biological Opinion, and LCP are amended, a property 0 25 owner attempting to develop his property may be granted an allocation through the 26 ROGO process that may be used once that property owner obtains all required 0 27 permits and authorizations required under the Endangered Species Act and other -19 28 applicable federal and state laws. The allocation will remain valid so long as the � 29 applicant diligently and in good faith continues to work with USFWS to conclude 30 the coordination and pick up a building permit. 31 (5)Limit on number of allocation awards in Tier I. 32 a. Big Pine Key/No Name Key subarea: The maximum ROGO allocations in Tier I shall 33 be no more than one (1) every two (2)years. 34 b. Upper Keys subarea: The annual maximum ROGO allocations in Tier I shall be no 35 more than three (3). 36 c. Lower Keys subarea: The annual maximum ROGO allocations in Tier I shall be no 37 more than three (3). a 38 (b) Reservation of affordable housing allocations. Notwithstanding the provisions of Section 39 138-26 for awarding of affordable housing allocations ter_._�.'.or��,force__.initiative__.(M'S. ���tc:>.rce, U 40 housing earlv__evLL-LLIgiti n mun _a11t>€�amtions, the BOCC may reserve by resolution some or all 41 of the available affordable housing allocations or available work'f orc.e Initlati've a'llt'cations for 42 award to certain sponsoring agencies or specific housing programs consistent with all other 43 requirements of this chapter. Building permits for these reserved allocations shall be picked 44 up within six months of the effective reservation date, unless otherwise authorized by the 45 BOCC in its resolution. The BOCC may, at its discretion,place conditions on any reservation 46 as it deems appropriate. These reservations may be authorized by the BOCC for: Ordinance No. -2021 Page 6 of 12 File 2020-068 Packet Pg.4200 S.2J 1 (1) The county housing authority, nonprofit community development organizations,pursuant 2 to Section 139-1(e), and other public entities established to provide affordable housing 3 by entering into a memorandum of understanding with one or more of these agencies; 4 (2) Specific affordable or employee housing projects participating in a federal/state housing 5 financial assistance or tax credit program or receiving some form of direct financial 6 assistance from the county upon written request from the project sponsor and approved 7 by resolution of the BOCC; 8 (3) Specific affordable or employee housing projects sponsored by nongovernmental not-for- 9 profit organizations above upon written request from the project sponsor and approved 10 by resolution of the BOCC; 11 (4) Specific affordable or employee housing programs sponsored by the county pursuant to 12 procedures and guidelines as may be established from time to time by the BOCC; 13 (5) Specific affordable or employee housing projects by any entity, organization, or person, 14 contingent upon transfer of ownership of the underlying land for the affordable housing 15 project to the county, a not-for-profit community development organization, or any other 16 entity approved by the BOCC, upon written request from the project sponsor and 17 approved by resolution of the BOCC; or 2 18 (6)Rental employee housing projects situated on the same parcel of land as the nonresidential 19 workplace for the tenants of these projects,upon written request from the property owner > 20 and approved by resolution of the BOCCE tire- ___ 217 t>rl�ft>rce initi ive Irt>nsin rt> ects. prrsnanttt>I't>licv IfII.3.I2 and ectit>n I33�24(e . 22 t3r r gnire t>ccnnants tt> evacuate in Phase I of the 43-fir evacuation of`� loendin4 rnt>r � 23 q e restricted to rental occLi � cv �lgd..ft.)r those who derive at..leas:t..7.0% of` 24 their Incorne as members of`_the workforce in Monroe C oLlntvm�LgtI_Eho meet the affordable 25 ht�Llsing Inca ne c, tegt�ries of the Monroe C aunty I...,ancl 1)evelt�n� ent Code, � 26 (c) Affordable housing allocation awards and eligibility. 0 27 (1) The definition of affordable housing shall be as specified in Sections 101-1 and 139-1. -19 28 (2)Any portion of the affordable housing allocation not used for affordable housing at the end � 29 of a ROGO year shall be made available for affordable housing for the next ROGO year. 30 (3) No affordable housing allocation shall be awarded to applicants located within a Tier I 31 designated area, within a V-zone on the county's flood insurance rating map, or within a 32 Tier III-A (special protection area) designated area. 33 Notwithstanding the foregoing, and notwithstanding Section 138-24(a)(5), affordable 34 housing ROGO allocations may be awarded to Tier I or Tier III-A properties which 35 meet all of the following criteria: 36 a. The property contains an existing market rate dwelling unit that meets the criteria in 37 LDC Section 138-22(a) and is determined to be exempt from ROGO; a 38 b. The proposed replacement affordable dwelling unit meets current Florida Building 39 Code and is not a mobile home; 40 c. The proposed replacement dwelling unit shall be deed restricted for a period of at least 41 99 years as affordable housing pursuant to the standards of the Land Development 42 Code; 43 d. The proposed site plan for the replacement affordable dwelling unit does not propose 44 any additional clearing of habitat; and 45 e. The structure is not proposed to be within a V-zone on the county's flood insurance 46 rating map. Ordinance No. -2021 Page 7 of 12 File 2020-068 Packet Pg.4201 S.2J 1 (4) Only affordable housing allocations for Big Pine Key may be used on Big Pine Key. No 2 affordable housing allocation may be used on No Name Key. 3 (d) Dwelling unit allocation required. The county shall issue no building permit for a dwelling 4 unit unless such dwelling unit: 5 (1)Has a dwelling unit allocation award; or 6 (2)Is exempted from the dwelling unit allocation system pursuant to this chapter or is deemed 7 vested pursuant to Section 138-22. 8 ility and ne ginerr ents. 9 rrrsrrant to Policies 101.3.2....1 f�I e3 �...aPcl .L�.I:.�..I2. �1onr( �c>rrn�ty establishes � new 10 allocamdt�nmc,-gtegorv_mto award 300 workforce cousin earlvmevacuation unit mbL�iIdin� e �lt 0 11 allocations pLrrsL�ant tt� tfle orkforce A.ffordabl.e Housing initiative (�o`trrl�f`orce fnitiativefe 12 11ie_-"-,'or-kft>rce__�fft>rd-able FIo-usin� fnitia ive will require dwelling units constructed and/ or � 13 deed restricted with workft.)rce Iio sin early evacLratitrn bLrilcling er? ?it allocations :tt.>.. � 14 evacuate oc€�n ants in 1'lrase I t>f`tFre 4 �hr evacrratit>n t>f`a ejjchn�&rna t>r h ric,anee y 15 (2 ()welling Units developec1, and ter deed restricted Utilizing t_workforce initiative 16 allocations are sui ect�to the f t>lltwin�: � 17 a.� c Lrests ft>r wt>rl�ft>rce lrt>rrsin early evacuation r i t all Oca ons shall be available t>nly 18 forma__I for lm exchangf for affordable allocations%exe�n�LtLTms__-ni recquirem_am_reservationm � 19 via OC:C...resolution....The BO C...f ay,...at..ists...discre�ti n ace conditions on...an::v 20 reservation as it deems a ate, The BBC C_r av at Its discretion exclia�ge existing m_ ____ ___m m __ _____ _______ mm _________ __ 21 reserved affordable Linder then Workforce ve to private � 22 develt>p�nent and nonprofit sectt>r partners willing tt> meet the reouirernents of` the 23 workforce Iot�slni4 early evacuation unit allocations. Further, BOCC � ay..at..i:ts v 24 discretion., rove the exchan4e of existin4 deed-restricted affordable housinL units0 25 rnily residential developments for 26 allocations_munder mthe mWorkforce fnitt_amtivemmto private develo0ment and norn)rofimt secmtor 0 27 glIpgr willing to meet the recluirernents of`the workf`trrce 1�trLrsin� early evacLration c 28 unrtm al l oc ati onms_e 29 1e The affordable allocations returned to the County in excham4e for workforce � 30 housing early evacLration unit allocations shall be banked and used f`or fLLture 31 administrative relief`. beneficial Lrse cleterrnrnatit>ns and tt> rest>lve inverse ............................................................................................ 32 condef nation cases and Inert J_ Harris.-Jr, Private E?rtl arty_ ights Protection Act 33 ca:s_es... 34 2. To rnmaintaln consismten€w wimth Rule 28-20,_140(2)(b)., P.A..C., the affordable U 35 alloca ions re.tumed t. the CoLrnty shall be maintained as iffc>rclible,illc>c tiic>ns and 36 shall also be returnedto the original affordable 1�( sing income ca egorv_ very 37 low low median inc o ne vs moderate Inc tal e nool) 38 3. I'he workf t>rce Ii-ousini4 early evacuation Unit alloca ions must be Lrtilized based on 39 file trlglnal aJ�prt�vecl affordable 1�tLsln Inct�memmmcatetry ormmmammmlesser income 40 caaet>rv. 41 4. Awdl iPi_sthaliva,reli_ef'-lf?.asns.._ac..ti..t>ns...tal�an by the Co ty uantim4 the owner of'real 42 pvtl erty relief frt��n the continued mma�2�lication trf` the Pate trf` Gr(wth Ordinance 43 (K3CiOf restrrctic>ns prt>vrclecl they rneettkre criteria established in the 44 Co npfchensive Plan and Land Qeeveloprnent Code. 45 5e Beneficial use means fife Lase of`prt�perty that allows an owner to derive a benefit 46 or_ L.)fit in the exercise of a basic prt> ertv__right. For the u-Dose of`this pt>licv, Ordinance No. -2021 Page 8 of 12 File 2020-068 Packet Pg.4202 beneficial use shall mean the minimum use of'.the.pig erty..n��jLyjtt.I.Avoid the 2 ...........il..................................,in a.............................................. ..................................... findim, of a_rei4ulatory �Lit _, under current land use case law- 3 b, The construction of'dwelli t, ek) ent or the deed restrictio_q.lt its., the redev ..of T-1 n existin .............................. ............. 4 LIE�eIjjDu units utilizing workforce housing early -t��uation unit allocations shall ------------------------------------------------------- 5 r vat of a resolu' 'o a r vip_g� acontract between the BOCC and the .!�qjmre a?j.).ro j ........................................................................ 6 2plicant to officially e clr e the allocations and confirm corn with the 7 r.eLLire�nents �ork f(.)r c�ef n i ti�ati v e. 8 c,---A.1-1--w-orkf'o-r-ce--Ii-ousiiiL, e,-trl,��_e-vacua-ti-on--uni-ts--re-qLiire a deed-restricaton ensuring: 9 1, Bef(.)re n e issued for anv structure.............................................env buif�dingy �ermit may b vi>Eti..On�0. .Lvbs!.se t2f.s!. 0 10 biect tc> the Worki"orce fnitiative Live covenant shall be a roved 0. 11 by the f)lannin�4..D.ire-c-t-or..a.n.d..C.o.iin..t7v Attornev and recorded in the Office of' the 0 12 Clerk of the County to ensure compliance with the movision of this section running 13 in favor of the County enforceable—by the—Couirty and. i a licable., a p.p .................................................................................................... ......................................... 14 pqrti lit7V, The f 0 ments shall to these ----—-------------------- ---------------------- 15 restrictive covenants: ............................................................................................ 16 L__The---c-ovenan-ts---f(.)r---anv---w-orki"o-r-ce---Ii-o-usilIg early__ev_ac_uati_on---u-n-its shall be 17 effecti for 9 ve 9 ...................................years, .2 18 ii, The covenants shall not commence running 19 has been issued dwelling ...................................................................... ...... 20 units--t-o-wlii-cli--tli-e--cov-en-ant-or-c-ovenan-ts-_applv_, 21 iii, F �_T dwelling units that are deed-restricted as workf(.)rce housing .............. ...Units.......................................................................................................................................................................................................... 22 early----e-y-ac-ua-tion----units-----tLe----c-ove-nan-ts----sha-1-1-----comm-en-ce-----rune Li on 23 recordation in the Official Records of'Mo.n r.o. ..e....C.Q.U.D.ty, ........................................................................................................ ............. 24 2, The covenants shall ��jt� t -------------------------------------------------1 tLL--Iia-t--tli-e-w-orkf(.)rc-e--Ii-ousi-n.i4 early 0 aLuation units to be ------------------------------------- 25 restrctecl tt rental tic c Lnc. as 26 members ofthe workf(.)rce in Monroe Countv and who meet the aff(.)rdabl-e liousim4 0 27 incorne C u V c ants ............................... e....M. ..o.R.m.e...........o� n..tvL.,andDevel( i-nent Code, The oc -19 28 e_Leq e )Jbil4y, 0 .Ilired_toannualllverif'vtlieir_��ID loyjjj��Et and incorn el ------------------------------- -----------—------------ ----------------------------------j,6__ 29 the c o.YeD.An t..s....s..IIAII.I.e. evacuation 30workforce housinvy early 31 evacuation units who.m.,jybe exempted from evacuation r -.,juiremems are Ifirniqed ...................................................................................................... ........................................................................................ 32 to law eirforcernent., correctional and fire p ij�j., health care personnel, anti ---------------------------------------------------------------------------------------------- ------------------------------- 33 ilities, ff' there is an. .......... ............................................................................................... 34 oIccgpant that indicates their ern 1p 0 -----------------------------------------------------112- 35 and not included in the list ofexernp.�ions.&�K�.then the Planning Director shall and....................................................................................................................................................... .............................. 36 determine, in writing whether th- ��jLtLi 37 1! quirernent to remain during..ag...gE.ej �g ..I ing 1H.1 38 under this_pLgLision shall submit of an affidavit of q E ----------------------- ision shall -11L-�tjLi c-a ti on---and-lai-thfully. 39 certify-Lheir status with theonsite pjgpg�qy rnanag�ernent, . .. .40 4, The covenants shall I-aueernents which contain a separate disclosure 41 reclLrrrrn rental trccLrpants to ackno lech4e the exist'�p� he . iqtn a restr ictive covenatyt tin the 42 WlLi rec unit ation in Phase I of' the 48-lir evacuation and that fililure to - 43 Phase I evacuation to the ............................................................................................................................................ �nt c�ou�ldresultin_severe�� 44 in-clu-di-Li to the oc 45 5, The covenants shall L uIre e ......................................................................................................M�1------------------on-s-yte ro� managy��.r.Land.a..s p qe.�Mjt>yrneryt ....................... ........._qj� 46 di-sclosLILrc Lririn the maintenance of' train' rocedures and an Ordinance No. -2021 Page 9 of 12 File 2020-068 Packet Pg.4203 I ackno ehernent that failure to adhere to the Phase I evacuation reaurrernent .............. 2 could result in severe_ re eng-mltieL.J-n-clu d i n i4 term i n a ti on, 3 d, Workforce ho imLearl units shall be restricted to rental oc .........................................................................Lt ­­­ 4 those whc>deri ve--a t least-1 0%--of'-th e-i r-i-n-c orn e--a-s.-members o- the workf(.)rcei n--M-on roe 5 CoLtfl. odes' '"o,f,d'i,e"M,o,nr,oe"C,ou, Ly n. 6 I.,and-Dey-el-o0ment Code, 'Workforce means individuals or families who are i4ain u v. 7 �e111P.h2yed-mu residents or visitors, 8 e----'-W----o---r-kfo---r--c--e---h---o---u--s--iDL,.early__�La-cu a- - n­un-i-t-s----s 1--i-a1-­1� iLtEe ­py -11L j&— ernert 9 witlij)jQP cedures and re urred to manatee the ................... 0 10 evacuation of tenants in Phase f of evacuation-,- ig,, traditional working hours. ---------------------------------------------------------------------------------------------------------------- 0. 11 t1l..........e workforce housing early 0 ...... .PEW 12 ev-ac-uati-on--un-i-t--de-v-el-opillent snbiect �r2=Y _O-utsi-de---tli-e--traditional--work-in&, hours. 13 the to evacuation orders, ffgRgi 14 fmmlj!e2LUertKjng�i2aL,ernent entity-Igi-11,je-workforce housing early aLuation units shall --------------------------------------- ­eLg -------------------------------------- 15 1t2yrnent and incorne eligib.iii ty of'ten an ts...roPort 16 tli-e--total--u-n-its--on--tlie-site,--tlime�-oc ncy rates ofunits., and tenant col Nance with the e�jps��------------------------------------- -------------------------------- 17 r evacuate the units in Phase f of`an evacuation, includi � the number of .2 ............................... 18 occmrLpants that a frorn the evacuation re rernents, T ---- ----- L ----- quireine�rYT�he )rt»e L 19 rnana ement entity must subi t e E'lanning and Environmental Resources 20 _jLjf_each year, F-urth-er"each ch---I-e-ase--a-nd--th-i-s--a-nnual--report shall be 21 _jje��jjv manager and be available ft) by the County�duringy..IJD�p �g.q.�m..... ............................................................................................ 22 traditional.workW,4—hours, 23 g, 'Workforce housing 24 Tier fff, 0 ---------------- 25 -Zone or within 26 a Coastal Barrier Resource_Svstein__(f BR.S), 0 27 i, Workforce housin s all ............................................................................................ 28 infrastructure available (zL�able water., adeqlja�L(� 0 ---------------------------------------- ------------------------------ _.�L-LiLtew-at-er--trea-ti-ne-n-t--an-d---di-WL)—Sal 29 wastewater paved rt�ads etc ..................................................................................­adopted..................................... 30 j, All workforce housing early - -�tion units must demonsmtramte ct»npliance Lg»gDliance with all ---------------------------------------31 a -- A applicable federal standards foc r a Ii Pp ... ..... ­j��ib i ry ) persons disabilities DA ................. _for rsons with ­_p .................... 32 Cofyipji�ance 33 able. a devel( went utilizing workforce housing early gn.t..p g1ic ..................... ............... .................... 34 ev-ac-uati-on--u-ni-t--a-l-l-oc-ation-s-shall--i-nc-t>lpt.IL�Le_silstai-n-ab-le-and-resi-li-en-t--d-esi, rinci�le-S. 0 35 into the overall site desi accessible to ernployrneirt centers in Key West. ..................................................overall .....­................. .....................................................­­ ................. 36 island-and-an.d--M-ara.th-o-n-,. 37 E 38 39 Section 3. Construction and Interpretation. This Ordinance is necessary for the health, 40 safety, and welfare of the residents of and visitors to the County. This Ordinance shall be liberally < 41 construed to effect the public purpose(s)hereof. Interpretation of this Ordinance shall be construed 42 in favor of the Monroe County Board of County Commissioners ("Monroe County" or the 43 "County"), and such construction or interpretation shall be entitled to great weight in adversarial 44 administrative proceedings, at trial, in bankruptcy, and on appeal. 45 Ordinance No. -2021 Page 10 of 12 File 2020-068 Packet Pg.4204 S.2J I Section 4. Inconsistency, Partial Invalidity, Severability, and Survival of Provisions. 2 If any provision of this Ordinance, or any portion thereof, is held to be invalid or unenforceable in 3 or by any administrative hearing officer or court of competent jurisdiction, the invalidity or 4 unenforceability of such provision, or any portion thereof, shall neither limit nor impair the 5 operation, enforceability, or validity of any other provision of this Ordinance, or any remaining 6 portion(s) thereof. All other provisions of this Ordinance, and remaining portion(s) thereof, shall 7 continue unimpaired in full force and effect. 8 9 Section 5. Repeal of Inconsistent Provisions. All ordinances or parts of ordinance in 10 conflict with this ordinance are hereby repealed to the extent of said conflict. The repeal of an0. 11 ordinance herein shall not repeal the repealing clause of such ordinance or revive any ordinance 12 which has been repealed thereby. 13 14 Section 6. Transmittal. This Ordinance shall be transmitted to the Florida State Land 15 Planning Agency as required by Florida Statute § 380.05(11) and Florida Statute § 380.0552(9). 16 17 Section 7. Filin2. This Ordinance shall be filed in the Office of the Secretary of the State c 18 of Florida but shall not become effective until a final order is issued, according to Florida Statute 19 § 380.05(6),by the Florida State Land Planning Agency or Administration Commission approving 20 the Ordinance, and if the final order is challenged, until the challenge to the final order is resolved 21 pursuant to Chapter 120, Florida Statutes. 22 23 Section 8. Inclusion in the Monroe County Code. The provisions of this Ordinance shall 24 be included and incorporated in the Monroe County Code, as an addition to amendment thereto, 0 25 and shall be appropriately renumbered to conform to the uniform marking system of the Code. 26 2 27 Section 9. Effective Date. This Ordinance shall become as provided by law and stated 28 above. c� 29 30 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, W 31 Florida, at a regular meeting held on the 21 st day of April 2021. 32 33 Mayor Michelle Coldiron 34 Mayor Pro Tem David Rice 35 Commissioner Craig Cates 36 Commissioner Eddie Martinez 37 Commissioner Mike Forster 38 39 40 41 BOARD OF COUNTY COMMISSIONERS 42 OF MONROE COUNTY, FLORIDA 43 44 BY: 45 MAYOR MICHELLE COLDIRON 46 Ordinance No. -2021 Page 11 of 12 File 2020-068 Packet Pg.4205 S.2J MONROECOATTon 1 (SEAL) TO FORM 3 ATTEST: KEVIN MADOK, CLERK 4 PETER MRI ASSISTANT OU T' ATTORNEY 5 AS DEPUTY CLERK 4.5.21 6 c CJ N c c 2 0 4- 0 r9 CJ Ordinance No. -2021 Page 12 of 12 File 2020-068 Packet Pg.4206 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. Respectfi€lly, t Emily Schemper, AICP, CFM Acting Senior Director of Planning and Environmental Resources, Monroe County Page 3 of 3 _ .Q O -,aM .. 0 2 = O G © 4) 4) U 4- M C C d s.. LO _ N 4) z m 4) 0 � LL C) � � 0) s "aO (�� 41x x 04 0 M G 49 © .. , 4� © 3 p . L2. - 4- C O i C14y "I' CD E 0 O ' t� C 0 .' C) 0 3 �, „ V •3 4) .0 N O m p ca Z3 �,. O E R5 •v J .*+ a) 4) p G QT' (U � 4- C) O 0 .� U . C 3 © ++ _ = E a LL 0a) CL O G s� C�Cj N C Q R3 p •� C C' N .- p. 1. O0 _ 4) C) "'� 04 � +a ++ c c v �; R5 "0 C O 6. O C ) 0 � m V r i O o ' 0 v - iq_ -00 mU- 05 Co CO a) M E r C? L. 'c— c 0 T3 Ca •C p O �O ._ 'L = C N to , <( a) 5 O = 0 N (n Z3 a) "� p 0. •G O C� O '' 4) -+ TD CO 4) COOW �•+ � a. 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