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Item F3 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: February 22, 2001 Division: GMD Legal AGENDA ITEM WORDING: Approval of Stipulated Settlement Agreement with DCA. ITEM BACKGROUND: DCA found Compo Plan Amendment 99-1 not "in compliance," on the basis that it might allow clearing and development too close to the shoreline, and could (by creating ROGO points for dedication of wetland properties) make available too many ROGO points. After DCA filed an administrative appeal, DCA and GMD negotiated a proposed settlement to resolve those concerns. If approved, the Agreement will require a public hearing on the proposed revision to the Compo Plan Amendment. PREVIOUS RELEVANT BOCC ACTION: SOCC adopted Compo Plan Amendment 99-1 on January 13, 1999 and February 10, 1999 (Ordinance Nos. 006-1999 and 010-1999). STAFF RECOMMENDATION: Approval. TOTAL COST Cost to County: BUDGETED: Yes_ No APPROVED BY: County Attorney X OMS/Purchasing Risk Management DOCUMENTATION: Included To Follow Not required AGENDA ITEM # w STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, v. DOAH Case No. 99-2167GM MONROE COUNTY, Respondent. / STIPULATED SETTLEMENT AGREEMENT THIS STIPULATED SETTLEMENT AGREEMENT is entered into by and between the State of Florida, Department of Community Affairs and Monroe County as a complete and final settlement of all claims raised in the above-styled proceeding. RECITALS WHEREAS, the State of Florida, Department of Community Affairs ("DCA" or the "Department"), is the state land planning agency and has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes; and WHEREAS, Monroe County ("Local Government") is a local government with the duty to adopt comprehensive plan amendments that are "in compliance;" and WHEREAS, the Local Government adopted Comprehensive Plan Amendment 99-1 (the "Plan Amendment") by County Ordinance Nos. 006-1999 and 010-1999 on January 13, 1999 and February 10, 1999, respectively; and ~l.r WHEREAS, Ordinance No. 006-1999 proposes, among other things, to change the conditions under which development that is less than fifty (50) feet from the shoreline may occur; and Ordinance 010-1999 proposes, among other things, to change the weighting category for land dedication under the Rate of Growth Ordinance ("ROGO"); and WHEREAS, the Department issued its Statement of Intent regarding the aforesaid Ordinances being found not "in compliance" on April 20, 1999 and published its Notice ofIntent Amendment on April 23, 1999; and WHEREAS, as set forth in the Statement of Intent, the Department contends that Ordinance 006-1999 is not "in compliance" because it is not supported by data and analysis that demonstrates that natural resources will not be adversely impacted by the impacts that would result from clearing and development closer to the shoreline, as well as the secondary and cumulative impacts on water quality, adjacent habitats, wildlife, and marine resources and that Ordinance 006-1999 is internally inconsistent with County Comprehensive Plan Policy 212.1.1; and WHEREAS, as set forth in the Statement of Intent, the Department contends that Ordinance 010-1999 is not "in compliance" because the amendment of ROGO to permit that assignment of positive points for the dedication of wetland properties will undermine the ability of the County to effectively address the severe over-allocation of platted lots and upland acreage tracts in the Florida Keys, the amendment will further undermine the ability of the County to resolve disputes related to private property rights and development expectations concerning platted lots and upland acreage tracts, and the amendment is not supported by data and analysis to address these concerns; and Stipulated Settlement Agreement - DOAH Case No. 99-2167GM - Page 2 of 10 WHEREAS, pursuant to Section 163.3184(10), Florida Statutes, DCA has initiated the above-styled formal administrative proceeding challenging the Plan Amendment; and WHEREAS, the Local Government disputes the allegations of the Statement of Intent regarding the Amendment; and WHEREAS, the parties wish to avoid the expense, delay, and uncertainty of lengthy litigation and to resolve this proceeding under the terms set forth herein, and agree it is in their respective mutual best interests to do so; NOW, THEREFORE, in consideration of the mutual covenants and promises hereinbelow set forth, and in consideration of the benefits to accrue to each of the parties, the receipt and sufficiency of which are hereby acknowledged, the parties hereby represent and agree as follows: GENERAL PROVISIONS 1. Definitions. As used in this agreement, the following words and phrases shall have the following meanings: a. Act: The Local Government Comprehensive Planning and Land Development Regulation Act, as codified in Part II, Chapter 163, Florida Statutes. b. Agreement: This stipulated settlement agreement. c. Comprehensive Plan Amendment or Plan Amendment: Comprehensive plan amendment 99-1 adopted by the Local Government by County Ordinance Nos. 006-1999 and 010-1999 on January 13, 1999 and February 10, 1999, respectively. d. DOAH: The Florida Division of Administrative Hearings. Stipulated Settlement Agreement - DOAH Case No. 99-2167GM - Page 3 of 10 e. In compliance or into compliance: The meaning set forth in Section 163 .3184( 1 )(b), Florida Statutes. f. Notice: The notice of intent issued by the Department to which was attached its statement of intent to find the plan amendment not in compliance. g. Petition: The petition for administrative hearing and relief filed by the Department in this case. h. Remedial Action: A remedial plan amendment, submission of support document or other action described in the statement of intent or this agreement as an action which must be completed to bring the plan amendment into compliance. 1. Remedial Plan Amendment: An amendment to the plan or support document, the need for which is identified in this agreement, including its exhibits, and which the local government must adopt to complete all remedial actions. Remedial plan amendments adopted pursuant to this Agreement must, in the opinion of the Department, be consistent with and substantially similar in concept and content to the ones identified in this Agreement or be otherwise acceptable to the Department. J. Statement of Intent: The statement of intent to find the Plan Amendment not in compliance issued by the Department in this case. k. Support Document: The studies, inventory maps, surveys, data, inventories, listings or analyses used to develop and support the Plan Amendment or Remedial Plan Amendment. Stipulated Settlement Agreement - DOAH Case No. 99-2167GM - Page 4 of 10 2. Department Powers. The Department is the state land planning agency and has the power and duty to administer and enforce the Act and to determine whether the Plan Amendment is in compliance. 3. Negotiation of Agreement. The Department issued its Notice and Statement of Intent to find the Plan Amendment not in compliance, and filed the Petition in this case to that effect. Subsequent to the filing of the Petition the parties conferred and agreed to resolve the issues in the Petition, Notice and Statement of Intent through this Agreement. It is the intent of this Agreement to resolve fully all issues between the parties in this proceeding. 4. Dismissal. If the Local Government completes the Remedial Actions required by this Agreement, the Department will issue a cumulative Notice of Intent addressing both the Remedial Plan Amendment and the initial Plan Amendment subject to these proceedings. The Department will file the cumulative Notice ofIntent with the DOAH. The Department will also file a request to relinquish jurisdiction to the Department for dismissal of this proceeding or for realignment of the parties, as appropriate under Section 163.3 1 84(l6)(f), Florida Statutes. 5. Description of Provisions not in Compliance and Remedial Actions~ Legal Effect of Agreement. Exhibit A to this Agreement is a copy of the Statement of Intent which identifies the provisions not in compliance. Exhibit B (entitled "Proposed Monroe County Year 2010 Comprehensive Plan Amendments" dated December 6, 2000) contains Remedial Actions needed for compliance. Exhibits A and B are attached hereto, made a part hereof, and incorporated in this Agreement by this reference. This Agreement constitutes a stipulation that if the Remedial Actions are accomplished, the Plan Amendment will be "in compliance." Stipulated Settlement Agreement - DOAH Case No. 99-2167GM - Page 5 of 10 6. Remedial Actions to be Considered for Adoption. The Local Government agrees to consider for adoption by formal action of its governing body all Remedial Actions described in Exhibit B no later than the time period provided for in this Agreement. 7. Adoption or Approval of Remedial Plan Amendments. Within 60 days after execution of this Agreement by the parties, the Local Government shall consider for adoption all Remedial Actions or Plan Amendments and amendments to the Support Documents. This may be done at a single adoption hearing. Within 10 working days after adoption of the Remedial Plan Amendment, the Local Government shall transmit 5 copies of the amendment to the Department as provided in Rule 9J-l1.0ll(5), Florida Administrative Code. The Local Government also shall submit one copy to the regional planning agency and to any other unit of local or state government that has filed a written request with the governing body for a copy of the Remedial Plan Amendment and a copy to any party granted intervenor status in this proceeding. The Remedial Plan Amendment shall be transmitted to the Department along with a letter which describes the remedial action adopted for each part of the plan amended, including references to specific portions and pages. 8. Acknowledgment. All parties to this Agreement acknowledge that the "based upon" provisions in Section 163.3184(8), Florida Statutes, do not apply to the Remedial Plan Amendment. 9. Review of Remedial Plan Amendments and Notice ofIntent. Within 30 days after receipt of the adopted Remedial Plan Amendments and Support Documents, the Department shall issue a Notice ofIntent pursuant to Section 163.3184, Florida Statutes, for the adopted amendments in accordance with this Agreement. Stipulated Settlement Agreement - DOAH Case No. 99-2167GM - Page 6 of 10 a. In Compliance: If the adopted Remedial Actions satisfy this Agreement, the Department shall issue a cumulative Notice of Intent addressing both the Plan Amendment and the Remedial Plan Amendment as being in compliance. The Department shall file this cumulative notice with DOAH and shall move to realign the parties or to have this proceeding dismissed, as may be appropriate. b. Not in Compliance: If the Remedial Actions do not satisfy this Agreement, the Department shall issue a Notice of Intent to find the Plan Amendment not in compliance and shall forward the notice to DOAH for consolidation with the pending proceeding. 10. Effect of Amendment. Adoption of any Remedial Plan Amendment shall not be counted toward the frequency restrictions imposed upon plan amendments pursuant to Section 163.3187(1), Florida Statutes. 11. Pm:pose of this Agreement: Not Establishing Preceden~. The parties enter into this Agreement in a spirit of cooperation for the purpose of avoiding costly, lengthy and unnecessary litigation and in recognition of the desire for the speedy and reasonable resolution of disputes arising out of or related to the Plan Amendment. The acceptance of proposals for purposes of this Agreement is part of a negotiated agreement affecting many factual and legal issues and is not an endorsement of, and does not establish precedent for, the use of these proposals in any other circumstances or by any other local governrnent. 12. Approval by Governing Body. This Agreement has been approved by the Local Governrnent's governing body at a public hearing advertised at least 10 days prior to the hearing in a newspaper of general circulation in the manner prescribed for advertisements in Section Stipulated Settlement Agreement - DOAH Case No. 99-2167GM - Page 7 of 10 163 .3184( 15)( c), Florida Statutes. This Agreement has been executed by the appropriate officer as provided in the Local Government's charter or other regulations. 13. Changes in Law. Nothing in this Agreement shall be construed to relieve either party from adhering to the law, and in the event of a change in any statute or administrative regulation inconsistent with this agreement, the statute or regulation shall take precedence and shall be deemed incorporated in this Agreement by reference. 14. Other Persons Unaffected. Nothing in this Agreement shall be deemed to affect the rights of any person not a party to this Agreement. This Agreement is not intended to benefit any third party. 15. Attorney Fees and Costs. Each party shall bear its own costs, including attorney fees, incurred in connection with the above-captioned case and this Agreement. 16. Effective Date. This Agreement shall become effective immediately upon execution by the Department and the Local Government. 17. Filing and Continuance. This Agreement shall be filed with DOAH by the Department after execution by the parties. Upon the filing of this Agreement, the administrative proceeding in this matter shall be stayed by the Administrative Law Judge in accordance with Section 163.3 1 84(16)(b), Florida Statutes. 18. Retention of Right to Final Hearing. Both parties hereby retain the right to have a final hearing in this proceeding in the event of a breach of this Agreement, and nothing in this Agreement shall be deemed a waiver of such right. Any party to this Agreement may move to have this matter set for hearing if it becomes apparent that any other party whose action is required by this Agreement is not proceeding in good faith to take that action. Stipulated Settlement Agreement - DOAH Case No. 99-2167GM - PageS of 10 19. Construction of Agreement. All parties to this Agreement are deemed to have participated in its drafting. In the event of any ambiguity in the terms of this Agreement, the parties agree that such ambiguity shall be construed without regard to which of the parties drafted the provision in question. 20. Entire Agreement. This is the entire agreement between the parties and no verbal or written assurance or promise is effective or binding unless included in this document. 21. Governmental Discretion Unaffected. This Agreement is not intended to bind the Local Government in the exercise of governmental discretion which is exercisable in accordance with law only upon the giving of appropriate public notice and required public hearings. 22. Multiple Originals. This Agreement may be executed in any number of originals, all of which evidence one agreement, and only one of which need be produced for any purpose. 23. Captions. The captions inserted in this Agreement are for the purpose of convenience only and shall not be utilized to construe or interpret any provision of this Agreement. In witness whereof, the parties hereto have caused this Agreement to be executed by their undersigned officials as duly authorized. DEPARTMENT OF COMMUNITY AFFAIRS By: to form and legality: J. Thomas Beck, Director Division of Community Planning lJLf/"1 Dat~ I Date Stipulated Settlement Agreement - DOAH Case No. 99-2167GM - Page 9 of 10 MONROE COUNTY By: Name Title ~/7/~/ , Date Date Stipulated Settlement Agreement - DOAH Case No. 99-2167GM - Page 10 of 10 STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS IN RE: MONROE COUNTY) COMPREHENSIVE PLAN) AMENDMENTS ADOPTED BY) DOCKET NO. 99-1-NOI-4401-(A)-(I)/(N) ORDINANCES NOS 006-1999 & 010-1999) ON JANUARY 13, 1999 & FEBRUARY 10, 1999,) RESPECTIVELY) ) STATEMENT OF INTENT TO FIND COMPREHENSIVE PLAN AMENDMENT NOT IN COMPLIANCE The Florida Department of Community Affairs hereby issues its Statement of Intent to find portions of Monroe County Comprehensive Plan Amendment 99-1, adopted by Ordinances 006- 1999 and 010-1999 on January 13, 1999 and February 10, 1999, respectively, Not In Compliance. The Department finds that the plan amendment is not "in compliance," as defined in Section 163.3 1 84(1)(b), Florida Statutes (F.S.), because it is not consistent with Chapter 163, Part II, F.S., the State Comprehensive Plan, Chapter 9J-5, Florida Administrative Code (F.A.C.), and the Principles for Guiding Development for the Florida Keys Area of Critical State Concern in Section 380.0552(7), F.S., for the following reasons: I. AMENDMENT TO POLICY 101.5.4(5). Ord. 010-1999 A. Inconsistent provisions. The inconsistent provisions of the plan amendment under this subject heading are as follows: 1. The amendment is inconsistent because the assignment of positive points for the dedication of wetland properties will undermine the ability of the County to effectively address the severe overallocation of platted lots and upland acreage tracts that exist in the Florida Keys. The amendment would undermine the ability of the County to resolve disputes related to private property rights and development expectations concerning platted lots and upland acreage tracts. The amendment assigns the same positive points for dedication of unbuildable wetland properties as for buildable platted lots and upland acreage tracts, even though wetland properties are not under the same threat of development. The weighting of points is not supported by data and analysis that demonstrates wetland properties are under the same threat of development as platted lots and upland acreage tracts, that assigning the same points for unbuildable wetlands and buildable platted lots will not undermine efforts to reduce the excess platted lots that exist, and an alternative strategy exists for effectively resolving property right expectations. while achieving other required objectives of the plan. [Sections 380.0552(7)(a), (d), and (1), and 163.3177 (8) and (10) (a) F.S. and Rule 9J-5.005(2), F.A.C.] . - EXHIBIT A B. Recommended remedial actions. The inconsistencies may be remedied by the following actions: 1. Provide data and analysis to justify the weighting oflot dedications for unbuildable wetland properties, platted lots and upland acreage tracts, to demonstrate how the severe excess of platted lots and acreage tracts will be reduced, and to explain how property rights and development expectations can be effectively resolved as related to platted lots and upland acreage tracts. 2. Differentiate between unbuildable wetlands and wetlands that are under potential threat of development with respect to the weighting and assignment of point allocations. II. AMENDMENT TO POLICIES 203.1.3 AND 204.2.6. Ord. 006-1999 A. Inconsistent provisions. The inconsistent provisions of the plan amendment under the subject heading are as follows: 1. The amendment is inconsistent because it is not supported by data and analysis that demonstrates natural resources will not be adversely impacted by the reduction in the required setback. The data and analysis does not evaluate the direct impacts that would result from clearing; the indirect, secondary and cumulative impacts to adjacent habitats, wildlife and marine resources; the secondary and cumulative impacts on water quality; and how stormwater management will be adequately addressed. The amendment fails to distinguish between existing conditions where habitat and scarified areas exist that would be impacted by the reduction in setback. [Sections 380.0552(7)(b), (c), (e), and 163.3177 (8) and (10) (e) F.S. and Rules 9J- 5.005(2), 9J-5.012(3)(c)2 and 9J-5.013(2)(c)3, 5 and 6, F.A.C.] 2. The amendment is inconsistent because it is does not address or differentiate water dependent and water related uses from other uses. The amendment is also internally inconsistent with Policy 212.1.1 which requires a Shoreline Use Priorities Plan. The required plan has not been developed and, in the interim, the prioritization has not been addressed as part of the supporting analysis or as part of the adopted amendment. [Sections 380.0552(7)(b), (c), (e), 163.3177 (2),163.3187 (2), F.S. and Rules 9J-5.005(2), 9J-5.012(3)(b)3., and 9J-5.012(3)(c)9, F.A.C.] B. Recommended remedial actions. The inconsistencies may be remedied by the following actions: 1. Provide data and analysis to demonstrate that a reduction in the required setback will not result in adverse, direct, indirect, secondary and cumulative impacts to natural resources including wetlands, uplands, wildlife and marine resources. Demonstrate that the reduction in setback will not adversely impact water quality and demonstrate how stormwater management will be 2 effectively managed, consistent with Policy 202.10.3. Adopt amendments that differentiate between scarified and habitat conditions based on supporting data and analysis, including a functional assessment of habitat quality. If setbacks are reduced based on a functional habitat assessment, the proposed area to be revegetated should be defined with some type of marker and protected by a conservation easement. 2. Complete a Shoreline Use Priorities Plan that identifies water dependent and related uses and identifies priorities for the uses that should be located proximate to the shoreline. Determine setback requirements based on data and analysis that distinguishes among water dependent, water related and other uses according to shoreline access needs. III. AMENDMENT TO POLICY 212.2.3 COrd. 006-1999) A. Inconsistent provisions. The inconsistent provisions of the plan amendment under this subject heading are as follows: 1. The amendment is inconsistent because it is not supported by data and analysis that demonstrates natural resources and water quality will not be adversely impacted by the location of uses allowed in the required setback. The data and analysis does not evaluate the direct impacts that would result from clearing; the indirect, secondary and cumulative impacts to adjacent habitats, wildlife and marine resources; and the secondary and cumulative impacts on water quality. The amendment is internally inconsistent with Policy 203.10.3 regarding stormwater management requirements. The amendment only addresses protection of upland habitats and does not otherwise protect transitional or wetland habitats. The amendment is internally inconsistent with clustering and open space policies. [Sections 380.0552(7)(b), (c), (e), 163.3177 (2)(6)(a), (8), (10), and 163.3187 (2), F.S. and Rules 9J-5.005(2), 9J-5.005(5), 9J-5.012(3)(c)2 and 9J- 5.013(2)(c)3, 5 and 6, F.A.C.] 2. The amendment is inconsistent because it is does not address or differentiate water dependent and water related uses from other uses. The amendment is also internally inconsistent with Policy 212.1.1 which requires a Shoreline Use Priorities Plan. The required plan has not been developed and, in the interim, the prioritization has not been addressed as part of the supporting analysis or as part of the adopted amendment. [Sections 380.0552(7)(b), (c), (e), 163.3177 (2), (6)(a), (8), (10), and 163.3187(2), F.S. and Rules 9J-5.005(2), 9J-5.005(5), 9J-5.012(3)(b)3., and 9J- 5.012(3)(c)9, F.A.C.] B. Recommended remedial actions. The inconsistencies may be remedied by the following actions: 1. Provide data and analysis to demonstrate that the location of uses within the required setback will not result in adverse, direct, indirect, secondary and cumulative impacts to natural resources including wetlands, uplands, wildlife and marine resources. Demonstrate that the location of uses within the setback will not adversely impact water quality and how stormwater management will 3 be effectively managed, consistent with Policy 202.10.3. Adopt amendments that ensure consistency with environmental policies related to clustering and open space. 2. Complete a Shoreline Use Priorities Plan that identifies water dependent and related uses and identifies priorities for the uses that should be located proximate to the shoreline. Determine setback requirements based on data and analysis that distinguishes among water dependent, water related and other uses according to shoreline access needs. Ensure that minimum setback requirements are established for all uses that are not water dependent. IV. CONSISTENCY WITH THE STATE COMPREHENSIVE PLAN A. Inconsistent orovisions. The inconsistent provisions of the plan amendment under this subject heading are as follows: 1. The amendment is inconsistent with the State Comprehensive Plan, including the following provisions (Section 163.3177 (10), F. S.; Rule 9J-5.021, F.A.C.): a) Goal 8, Policy 12. b) Goal 9, Policy 5. c) Goal 10, Policy 1. d) Goal 16, Policy 6. B. Recommended remedial actions. These inconsistencies may be remedied by following the previous recommendations. 4 CONCLUSIONS 1. The plan amendment in not consistent with the State Comprehensive Plan. 2. The plan amendment is not consistent with Rule 9J-5, Florida Administrative Code. 3. The plan amendment is not consistent with the requirements of Section 163.3177, Florida Statutes. 4. The plan amendment is not consistent with the Principles for Guiding Development, as set forth in Section 380.0552(7), Florida Statutes. 5. The plan amendment is not "in compliance," as defined in Section 163. 3184( 1 )(b), Florida Statutes. 6. In order to bring the plan amendment into compliance, the County may complete the recommended remedial actions described above or adopt other remedial actions that eliminate the inconsistencies. 'f}.. Executed this L day of April, 1999, at Tallahassee, Florida. ~ arles Gauthier, Chief ureau of Local Planning D partment of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 5 Planning and Environmental Resources Del'artment 2798 Overseas Highway Marathon, Florida 33050-2227 Voice: (305) 289 2500 FAX: (305) 289 2536 . Board of County Commissioners Mayor George Neugent, Dist. 2 Mayor Pro Tern Nora Williams, Dist. 4 Commissioner Sonny McCoy, Dist. 3 Commissioner Murray Nelson,. Dist. 5 Commissioner Dixie Spehar, Dist. I PROPOSED MONROE COUNTY YEAR 2010 COMPREHENSIVE PLAN AMENDMENTS December 6, 2000 Deleted language is stricken, added language is underlined. Policy 203.1.3 Monroe County shall require minimum vegetated setbacks of fifty (50) feet to be maintained as an open space buffer for development occurring adjacent to all types of wetlands iAGh:Jding maRgroves except for tidally inundated manorove fringes. except and as provided for in Policy 204.2.2... BAd 204.2.3. and 204.2.4. If a 50-foot setback results in less than 2,000 square feet of buildable area principal structure footprint of reasonable confiouration, then the setback may be reduced to the minimblm neGessary to allow for 2,000 square feet of Gbltldable aFea principal structure footprint of reasonable configuration; hoo'ever, in no event shall the setback be provided that the setback is not reduced to less than ~ twenty-five (25) feet. On properties classified as scarified adiacent to wetlands. the wetland setback may be reduced to twenty-five (25) feet. without regard to buildable area. if the entire setback area is planted and maintained in native veoetation with a site-suitable stormwater manaoement plan in accordance with "County reoulations approved by the County Biolooist and placed under conservation easement. "Development" shall include all activities as currently defined in the F.S. 380.05-compliant Land Development Regulations, hereby incorporated by reference. The effectiveness of this policy shall be reviewed durino the Evaluation and Appraisal Review (EAR) Process. - - EXHIBIT B Policy 204.2.6 UPQR aooptiQn of ths- Comprehensive Plan, Monroe County shall adopt revised environmental standards and environmental design criteria which establish minimum vegetated setbacks of fifty (50) feet to be maintained as an open space buffer for development occurring adjacent to all types of wetlands including mangroves except for tidally inundated manarove frinaes, e*Cept and as provided for in Policy 204.2.2.. aRd 204.2.3..~nd 204.2.4. If a 50-foot setback results in less than 2,000 square feet of buildable area principal structure footprint of reasonable confiauration, then the setback may be reduced to tRe minimum necessary to allow for 2,000 square feet of buildable area principal structure footprint of reasonable configuration; hO'l.'e'.'er, in no event shall the setback be provided that the setback is not reduced to less than 2Q twenty-five !2.Qlfeet. On properties classified as scarified adiacent to wetlands. the wetland setback may be reduced to twenty-five (25) feet, without reQard to buildable area. if the entire setback area is planted and maintained in native vegetation with a site-suitable stormwater manaQement plan in accordance with County reaulations approved by the County Bioloaist and placed under conservation easement. "Development" shall include all activities as currently defined in the F.S. 380.05 compliant Land Development Regulations, hereby incorporated by reference. The effectiveness of this policy shall be reviewed durinQ the Evaluation and Appraisal Review (EAR) Process. Due to the extensive revision of Policy 212.2.3, only the proposed language is presented. Policy 212.2.3 Permitted uses and performance standards within the shoreline setback shall be as follows: Principal structures shall be set back as follows: 1. Along lawfully altered shorelines including manmade canals, channels, and basins, principal structures shall be set back at least twenty (20) feet as measured from the mean high water (MHW) line; 2. Along open water shorelines not adjacent to man made canals, channels, or basins, and which have been altered by the legal placement of fill: a. and where a mangrove fringe of at least ten (10) feet in width occurs across the entire shoreline of the property, principal structures shall be set back at least thirty (30) feet as measured from the mean high water (MHW) line or the landward extent of the mangroves, whichever is further inland. b. and where no mangrove fringe exists, principal structures shall be set back at least thirty (30) feet from the mean high water (MHW) line, provided that native vegetation exists or is planted and maintained in a ten (10) foot width across the entire shoreline as approved by the County Biologist, and is placed under conservation easement; otherwise the setback shall be fifty (50) feet as measured from the mean high water (MHW) line. c. On infill lots surrounded by significant development where principal structures are set back less than fifty (50) feet from mean high water (MHW) or the landward extent of mangroves, the Director of Planning and Environmental Resources may evaluate the community character, the presence or absence of environmental features, and the setbacks on adjacent developed properties within two parcels on either side of proposed development, and may allow principal structures to be set back as far as practicable or in line with adjacent principal structures. In no event shall the setback be less than twenty (20) feet. On shorelines where the existing pattern of setback is greater than thirty (30) feet, the greater setback shall apply. 3. Along unaltered and unlawfully altered shorelines, principal structures shall be set back fifty (50) feet as measured from the mean high water (MHW) line or the landward extent of the mangroves, whichever is further landward; Accessory structures within the shoreline setback shall be designed to meet the following criteria: 1. Along altered shorelines, including man made canals, channels, and basins: a. In no event shall the total, combined area of all structures occupy more than sixty (60) percent of the upland area of the shoreline setback; b. Pools and spas shall be set back a minimum of ten (10) feet, as measured from the mean high water (MHW) line; 2. Along open water shorelines which have been altered by the legal placement of fill, and where a mangrove fringe of at least ten (10) feet in width occurs across the entire shoreline of the property: a. In no event shall the total, combined area of all structures occupy more than thirty (30) percent of the upland area of the shoreline setback; b. Accessory structures other than docks and erosion control structures shall be set back a minimum of fifteen (15) feet, as measured from the mean high water (MHW) line or the landward extent of the mangroves, whichever is further landward; 3. Along unaltered shorelines: a. In no event shall the total, combined area of all structures occupy more than thirty (30) percent of the upland area of the shoreline setback; b. Accessory structures other than docks and erosion control structures shall be set back a minimum of twenty-five (25) feet, as measured from the mean high water (MHW) line or the landward extent of the mangroves, whichever is further landward; . , 4. Any proposed development within the shoreline setback shall include a site- suitable stormwater management plan for the entire developed parcel which meets the requirements of the Land Development Regulations; 5. All structures within the shoreline setback shall be located such than the open space ratios for the entire parcel and all scenic corridors and bufferyards are maintained; 6. Structures shall be located in existing cleared areas before encroaching into native vegetation. The remaining upland area of the shoreline setback shall be maintained as native vegetation or landscaped areas that allow infiltration of stormwater runoff; 7. Side yard setbacks must be maintained for all structures in the shoreline setback except for docks, sea walls, fences, retaining walls, and boat shelters over existing boat ramps; 8. No enclosed structures, other than a dock box of five (5) feet in height or less, shall be allowed within the shoreline setback. Non-enclosed gazebos must be detached from any principal structure on the parcel. No decks or habitable spaces may be constructed on the roof of any non-enclosed gazebo in the shoreline setback; 9. Pools, spas, fish cleaning tables, and similar pollutant sources may not discharge directly into surface waters. Where no runoff control structures are present, berms and vegetation shall be used to control runoff. Native vegetation s~all not be removed to install berms or runoff control structures; 10. All boat ramps shall be confined to existing scarified shoreline areas of manmade canals, channels, and basins with little or no native vegetation, and shall be located and designed so as not to create a nonconformity for other structures set back from the new mean high water (MHW) line created by the boat ramp; and 11. The roof and supporting members of a boat shelter constructed in compliance with Section 9.5-345 of the Land Development Regulations, as amended (hereby incorporated by reference), may extend two (2) feet into the shoreline setback around the perimeter of a boat basin or ramp. This area shall be subtracted from the total area allowed for all structures within the shoreline setback. 12. Shoreline structures shall be designed to protect tidal flushing and circulation patterns. Any project that may produce changes in circulation patterns shall be approved only after sufficient hydrographic information is available to allow an accurate evaluation of the possible impacts of the project. Previously existing man made alterations shall be evaluated so as to determine whether more hydrological benefits will accrue through their removal as part of the project. 13.No development other than pile supported docks and walkways designed to minimize adverse impacts on marine turtles shall be allowed within fifty (50) feet of any portion of any beach berm complex which is known to serve as a nesting area for marine turtles: a. The fifty (50) foot setback will be measured from either the landward toe of the most landward beach berm or from fifty (50) feet landward of MHW, whichever is less. The maximum total setback will be one hundred (100) feet from MHW. b. Structures designed to minimize adverse impacts on marine turtles will have a minimum horizontal distance of four (4) feet between pilings or other upright members and a minimum clearance of two (2) feet above grade. The entire structure must be designed to allow crawling turtles to pass underneath it moving only in a forward direction. Stairs or ramps with less than the minimum two (2) feet clearance above grade are discouraged. If built, these portions of the structure must be enclosed with vertical or horizontal barriers no more than two (2) inches apart, to prevent the entrapment of crawling turtles. c. Beaches known to serve as nesting areas for marine turtles are those areas documented as such on the County's threatened and endangered species maps and any areas for which nesting or nesting attempts ("crawls") have been otherwise documented. Within mapped nesting areas, the Director of Planning and Environmental Resources may, in cooperation with the Florida Department of Environmental Protection, determine that specific segments of shoreline have been previously, lawfully altered to such a degree that suitable nesting habitat for marine turtles is no longer present. In such cases, the Director may recommend reasonable measures to restore the nesting habitat. If such measures are not feasible, the Director will waive the setback requirements of this paragraph. Restoration of suitable nesting habitat will be required for unlawfully altered beaches. 14. Special Approvals: a. For structures serving commercial uses, public uses, or more than three dwelling units, the Planning Commission may approve deviations from the above standards as a major or minor conditional use. Such approval may include additional structures or uses provided that such approval is consistent with any permitted uses, densities, and intensities of the land use district, furthers the purposes of this section, is consistent with the general standards applicable to all uses, and the proposed structures are located in a disturbed area of an altered shoreline. Such additional uses . J are limited to waterfront dining areas, pedestrian walkways, public monuments or statues, informational kiosks, fuel or septic facilities, and water-dependent marina uses. Any such development shall make adequate provision for a water quality monitoring program for a period of five (5) years after the completion of the development. b. For structures serving three or fewer dwelling units, the Director of Planning and Environmental Resources may approve designs that address unique circumstances such as odd shaped lots, even if such designs are inconsistent with the above standards. Such approval may be granted only upon the Director's written concurrence with the applicant's written finding that the proposed design furthers the purpose of this section and the goals of the Monroe County Comprehensive Plan. Only the minimum possible deviation from the above standards will be allowed in order to address the unique circumstances. No such special approval will be available for after-the-fact permits submitted to remedy a Code Enforcement violation. c. All structures lawfully existing within the shoreline setback along manmade canals, channels, or basins, or serving three or fewer dwelling units on any shoreline, may be rebuilt in the same footprint provided that there will be no adverse impacts on stormwater runoff or navigation. d. Docks or docking facilities lawfully existing along the shoreline of manmade canals, channels, or basins, or serving three or fewer dwelling units on any shoreline, may be expanded or extended beyond the size limitations contained in this section in order reach the water depths specified for docking facilities in Policy 212.5.2. Any dock or docking facility so enlarged must comply with each and every other requirement of this Policy and Section 9.5-345 of the Land Development Regulations, as amended (hereby incorporated by reference).