Item K18
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: September 18, 2002
Bulk Item: Yes X No
Division: Growth Management
DepartmentN/ A
AGENDA ITEM WORDING: Approval of Settlement Agreement for Florida Keys Citizens Coalition,
Inc., v. Florida Administration Commission, Monroe County and City of Marathon, DOAH Case No. 01-
4767RP and City of Marathon v. Florida Administration Commission, DOAH Case No. 021-1075RP
agreeing to settlement of all issues related to the challenge to proposed Rules 28-18 and 28-20.
ITEM BACKGROUND: Representatives of the Florida Department of Community Affairs (DCA),
Monroe County, City of Marathon and the challengers (Florida Keys Citizens Coalition, Inc.) reached
agreement to settle the challenge to the proposed Rules for the City of Marathon and Monroe County.
The proposed Rules are to be presented to the Governor and Cabinet sitting as the Administration
Commission on September 10, 2002.
The proposed Rule in Exhibit A of the Settlement Agreement reflects the changes made to proposed Rule
28-20 previously published on the February 22, 2002, shown in an underline and strike-through format.
It should be noted that the proposed Rule includes by reference new Policy 101.2.14, paragraph (36).
This policy allows the pooling of nutrient reduction credits and ROGO allocations for affordable housing
and their transfer across ROGO subdistricts and jurisdictional boundaries.
The proposed rule provides up-front to the County's 52 housing nutrient reduction credits (NRCs) for
affordable housing (Tradewinds II) and 52 NRCs for market or affordable housing to retroactively
eliminate the backlog in the system. All future credits resulting from wastewater treatment systems will
only be available as on-site systems are replaced and tied into central systems. For all intent and
purposes the language related to the sharing of NRCs among the jurisdictions is meaningless, because
unless ROGO allocations are drastically changed, the jurisdictions will not need any credits generated by
the County's sewer systems.
PREVIOUS RELEVANT BOARD ACTION: N/A
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATION: Approval
TOTAL COST: N/ A
BUDGETED: Yes
No
N/A
COST TO COUNTY: N/ A
REVENUE PRODUCING: Yes N/A No
AMOUNT PER MONTH N/ A YEAR
APPROVED BY: County Attorney X
OMB/Purchasing N/ A ('Risk Management
(/
~ '\1 >&.1/\
\J ~'<i \
Timo hy t. McGarl' AICP
v
To follow Not Required
N/A
DIVISION DIRECTOR APPROVAL:
DOCUMENTATION: Included L
AGENDA ITEM #: j( \ ~
DISPOSITION:
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA KEYS CITIZENS
COALITION, INC.,
Petitioner,
v.
DOAR CASE NO. 01-4767RP
FLORIDA ADMINISTRATION
COMMISSION, MONROE COUNTY,
and CITY OF MARATHON,
Respondents.
/
CITY OF MARATHON,
Petitioner,
v.
DOAH CASE NO. 02-1075RP
FLORIDA ADMINISTRATION
COMMISSION,
Respondent.
/
SETTLEMENT AGREEMENT
Petitioner, FLORIDA KEYS CITIZENS COALITION and CITY OF MARATHON
("PETITIOl\'ERS"), and Respondents, FLORIDA ADMli'\lISTRATION COMMISSION
("COMMISSION"). MONROE COUNTY ("COUNTY") and CITY OF MARATHON
("CITY"), by and through their undersigned counsel, do hereby agree and stipulate to the
following in settlement of all issues pending in this consolidated proceeding:
1. The Department of Community Affairs on bebalf of the COMMISSION has caused to
be published in the Florida Administrative Weekly on August 16,2002 a Notice of Change for
proposed Rules 28-18 and 28-20, Florida Administrative Code ("Proposed Rules"), copies of
which are attached hereto as Exhibit A. The Proposed Rules are scheduled to be presented to the
Governor and Cabinet sitting as the Administration Conunission for adoption on September 10,
2002. Upon adoption of the Proposed Rules by the Administration Commission, the Department
shall file the Proposed Rules with the Florida Secretary of State at the earliest possible time
thereafter.
2. In consideration for the foregoing and the amendments to the Proposed Rules,
PETITIONERS shall each voluntarily dismiss their Petitions in this consolidated proceeding
within seven days from the execution of this Settlement Agreement, without prejudice to filing
petitions to challenge any future publication of additional changes to Rules 28-18 or 28-20 not
reflected in Exhibit A
DATED this
day of September, 2002.
Assistant General COWlsel
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, FL 32399-2100
For the COMMISSION
Richard Grosso, Esquire
Environmental and Land Use
Law Center, Inc.
3305 College Avenue
Shepard Board Law Center
Ft. Lauderdale, FL 33314
For PETITIONERS
~~
K.areR-eabanas, Esquire
Morgan & Hendrick
317 Whitehead Street
Post Office Box 1117
Key West, FL 33041
For M01\TR.oE COUNTY
John R. Herin, Jr., Esquire
Weiss, Serota, Helfman,
Pastonza & Guedes .
2665 South Bayshorc Drive
Suite 420
Miami, FL 33133
For the CITY OF MARATHON
Richard A. Lotspeich
EXHIBIT A
ADMINISTRATION COMMISSION
RULE CHAPTER NO.: RULE CHAPTER TITLE:
28-18 Land Planning Regulations for the Florida Keys
Area of Critical State Concem- City of Marathon
RULE NO.:
28-18.200
RULE TITLE:
Comprehensive Plan
NOTICE OF CHANGE
Notice is hereby given that the following changes have been made to the proposed rule in
accordance with subparagraph 120.54(3)(d)1., F.S., originally published in Vol. 27, No. 44,
November 2,2001, issue of the Florida Administrative Weekly, and most recently amended in
Vol. 28, No. 19, May 10,2002, issue of the Florida Administrative Weekly.
28-18.200 Comprehensive Plan. The Transitional Comprehensive Plan of the City of
Marathon established by Chapter 99-427, Laws of Florida, is amended as follows:
(1) No change.
(a) The number of permits issued for new residential development under the rate of growth
ordinance shall not exceed a total unit cap of 24 ~ new residential units per year. TR~ r~gtgr~g
p~rmitg (~) :;y:~ ~R~gurAg~g tg b~ g~gi~At~g tg Affgrg:ilbl~ Rgu~iRg. This allocation represents the
total number of new permits for development that may be issued during a ROGO year. No
exemptions or increases in the number of new permits, other than that which may be expressly
provided for in the comprehensive plan or for which there is an existing agreement for affordable
housing between the Department and the local government, shall be allowed. For Year 5, the
interim Permit Allocation System shall allow a minimum of 11 new residential permits. If fewer
1
than 11 nutrient reduction credits are earned in Year 5, the deficit shall be made up in Year 6
prior to issuance of any new permits.
(b) No change.
(c) Ex~ept ag prguigeg belg'\, :fur tae little "eRi~e ge'\'er g~tgtem, RYtriem regY~tigR ~regitg
eanleg by ~gRgtrY~tigR gf a ~eBtFal ge'ver gygtelR y~:iRg beEt :irail:wle tedmglgg~' gr ag"aR~eg
magte'\Tater treatlReRt ghall be earReg a~QgrgiRg tg the fgllgHTiRg E~Regyle:
1. ORe thirg gfthe t9tal ~regitg egtimateg tg be a.F:ililable frglR tile:full gperatigR gfthe
gj'gtelR gh:illl be earReg ','lleR the 'vagte'\'ater ~gRgtru~tigR per:mit :fur the Ej'gtelR ig iEEyeg by Dli1P,
the gegign/byilg ~gBtr:il~t:fur the E~TgtelR Rag beeR full~T execyteg, :ilR9 ~gRgtrY~tigR gftRe g~'EtelR
R:ilE ~glRlReR~eg.
2. ORe thirg gftRe tgtal egtilR:i.teg ~regitE Eh:illl be eameg H'lleR tRe ~gRgtructigR gfthe g~TgtelR
ig SO percem ~glRplete
}. .^Jl rem:ili~i~g :p.Tail~le cregitg gRall be eam.eg ".'lleR tRe ~gREtl1.l~tigR gf the gygtem ig 1 gO
per~eRt ~glRplete, the cglle~tigR gj'gtem liReg R:pTe beeR iRgtalleg, :ilRg H'lleR the liRal tgt:ill gf
negitE a',t:ililable frglR gperatigR gfthe gygtelR hag beeR ~ak'.llateg
The nutrient reduction credits earned by the construction of the Little Venice system shall be
earned according to the following schedule:
1. 213 ~ of the total credits estimated to be available from the full operation of the system
shall be earned when the wastewater construction permit for the system is issued by DEP, the
design/build contract for the system has been fully executed, and construction of the system has
commenced. Of these credits, S<I gh:illl be Bl:ilge :p':ililable tg the Herigi:ilR Wegt :ilffgrgable
h91lEiRg prgject :ilRg 52 shall be made available to Monroe County tg tRe Trage'\'iR9g for
2
affordable housing };lrgj~~t, and 67 ~ for ~ proposed affordable housing prgj~~t in the City of
- -
Marathon. Any credits not used for ~ affordable housing prgj~~tE shall be available for future
allocation pursuant to paragraph 2 below. In addition, 5240 of these credits shall be made
available to Monroe County and 42 of these credits shall be made available to the City of
Marathon.
2. All remaining available credits shall be earned when the construction of the system is 100
percent complete, the collection system lines have been installed, and when the final total of
credits available from operation of the system has been calculated.
The nutrient reduction credits that are earned from the construction of ~ a central sewer
system, in which state or federal funds are used, shall be allocated as follows:
1. The local government shall receive a pro rata share of the earned nutrient reduction credits
in proportion to the amount of funds contributed from its jurisdiction to the total construction
costs; and
2. The remaining earned nutrient reduction credits shall be allocated between Monroe
County, the City of Marathon, and the Islamorada, Village of Islands in proportion to the annual
RaGO allocation of each to the total annual RaGa allocation for these local governments.
(d) Beginning September 30,2003 .^YgUEt 1,~, and each year of the work program (set
out in policy 101.2.13) thereafter, the City and the Department of Community Affairs shall report
to the Administration Commission documenting the degree to which the work program
objectives for that year have been achieved.
(e) The Work Program in Policy 101.2.13 for Year 4, Year 5, Year 6, and Year 7 shall be
modified as follows:
3
YEAR FOUR (July 13,2000 through July 12,2001)
A. through C. No change.
YEAR FIVE (July 13,2001 through July 12,2002)
A. through D. No change.
YEAR SIX (July 13,2002 through July 12,2003)
A. through D. No change.
E. In cooperation with Monroe County, develop a City-wide master land acquisition plan
which shall include:
(1) A strategy for the acquisition of those properties which should be preserved due their
habitat value as well as those other properties where future development is to be discouraged;
(2) A management plan for implementing the strategy, and (3) a reasonable, feasible plan for
securing funding for said land acquisition.
Agencies: City, County, Land Authority, DCA, DEP, SFWMD, Army COE, EPA, USFWS
and other interested parties to include representatives of environmental organizations and
development interests.
F. Initiate and complete a collaborative process for the adoption ofland development
regulations, and/or comprehensive plan amendments as needed, that will strengthen the
protection of terrestrial habitat through processes such as the Permit Allocation System and
permitting processes, and the preservation and maintenance of affordable housing stock.
Agencies: City, County, DCA, DEP, FFWC, USFWS, and other interested parties to include
representatives of environmental organizations and development interests.
YEAR SEVEN (July 13,2003 through July 12,2004)
4
A. and B. No change.
Specific Authority 380.0552(9) FS. Law Implemented 380.0552 FS. History -- New. NAME
OF PERSON TO CONTACT REGARDING THIS NOTICE OF CHANGE IS: Jim Quinn, State
Planning Administrator, Division of Community Planning, 2555 Shumard Oak Boulevard,
Tallahassee, Florida 32399-2100, (850) 487-4545.
5
ADMINISTRATION COMMISSION
RULE CHAPTER NO.: RULE CHAPTER TITLE:
Land Planning Regulations for the Florida Keys
Area of Critical State Concern - Monroe County
RULE NO.:
28-20.100
RULE TITLE:
Comprehensive Plan
NOTICE OF CHANGE
Notice is hereby given that the following changes have been made to the proposed rule in
accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 28, No.8, February 22,
20021, issue of the Florida Administrative Weekly.
The Monroe County Comprehensive Plan Policy Document, as the same exists on May 15,
2001, is hereby amended as follows:
28-20.100 Comprehensive Plan.
(1) - (34) No Change.
(35) Policy 101.2.13
Monroe County shall establish an interim Permit Allocation System for new residential
development. The interim Permit Allocation System shall supersede Policy 101.2.1 and remain
in place until such time as Monroe County determines its future growth capacity based on
hurricane evacuation, public safety and environmental needs including water quality and habitat
protection, and amends its plan consistent with such determination, based on the results of the
work program as set forth below. DEP, DOH, DCA and Monroe County shall develop a
coordinated permit review process that will insure that no state agency shall issue a wastewater
1
disposal permit that would allow development in excess of the number of permits that Monroe
County may issue under this interim policy. Similarly, Monroe County shall not issue
development permits under this interim policy in excess of wastewater disposal permits that DEP
or DOH may issue. For Years 3 and 4 ofthe Work Program, the interim Permit Allocation
System shall allow a minimum of 88 new residential permits per year which may be used to
address the backlog of ROGO allocations. Additional new residential permits will be allowed
but limited to the number of nutrient reduction credits earned within the same unincorporated
ROGO area. Nutrient reduction credits shall be earned consistent with Table I below. EX~iflt AE
flrgyidid pilg',l.' fgr tb.i l..ittli "iRki Ei"'ir E)'EtiR.:l, R'ltriiRt rigy~tigR ~rigitEi:<tnlig h)'
~gRJ;trY~tigR gf A ciR..tr:<t1 Ei"'ir E)'EtiR.:l UlsiRg PiEt A),:<til4bli ticRRgIgg)' gr Ad'.'AR~ig "':<tEti'vatir
triAtR.:liR..t Eb.:<tll Bi i:m:l~d ab:~grdiRg tg tb.i fgllgwiRg Ecb.igyli:
1. ORi tb.irg gf tb.i tgtal cr~gitE iEtiR.:latig tg Bi A),:<til4bli [rgR.:l tai :full gfliratigR gf tb.i
E)'EtiR.:l ~b.all B~ i:ml~g n~~R tb.~ 'vaEti'vatir ~gREtructiQR flirm.it fgr tb.i EYEtiR.:l iE iEEYig B)' DEP,
tRi diEigB/Bl.lilrJ cgR..tract fgr ta~ Ej'EtiR.:lRaE BiiR &11)' iXi~Ytid, :;m.g ~9REtn.l~tiQ1;J. gf tRi E)'EtiR.:l
R:<tEC9HURiR~ig
2. ORi tRird gf tb.i tgt:<tl iEtiR.:l;Rig crigitE ERall Bi iafRid n~iR tb.i cgREtrY~tiQ1l gf tRi E)'EtiR.:l
iE 50 flirb:iRt cgmflliti.
J. .^JI r~R.:laiRiRg :<tFAil:<tsli CrigitE Eb.:<t11 Bi i:ifRig "'RiR tRi cgREtrycti9R gf tRi E)'Etim iE 1 gO
pir~~Rt CGR.:lpliti, tRi ~gllictigR Ej'Etim liRiE R:<tJ'i hiin inEtallid, ARg 'l.~in tR~ finAl tgt:<tl gf
Cr~gitE A"ailabli froR.:l gfliratigR gftRi Ej'EtiJR R:<tE hiiR. CAkylatig.
The nutrient reduction credits earned by the construction of the Little Venice system shall be
earned according to the following schedule:
2
1. 213;z.s.o of the total credits estimated to be available from the full operation of the system
shall be earned when the wastewater construction permit for the system is issued by DEP, the
design/build contract for the system has been fully executed, and construction of the system has
commenced. Ofthese credits, 54 ERAll b~ m:aQi :p.':ailabli t9 thi H~riQi:iR 'WiEt .ff9rQ.bl~
h9m;iRg prgjict aRQ 52 shall be made available to Monroe County t9 thi Tr.Qi"'iRQE for
affordable housing pl1:9jict, and 67 ~ for ~ proposed affordable housing prgji~t in the City of
- -
Marathon. Any credits not used for ~ affordable housing pr9ji~tE shall be available for future
allocation pursuant to paragraph 2 below. In addition, 52 ~ of these credits shall be made
available to Monroe County and 42 of these credits shall be made available to the City of
Marathon.
2. All remaining available credits shall be earned when the construction of the system is 100
percent complete, the collection system lines have been installed, and when the final total of
credits available from operation of the system has been calculated.
The nutrient reduction credits that are earned from the construction of ~ a central sewer
system, in which state or federal funds are used, shall be allocated as follows:
1. The local government shall receive a pro rata share of the earned nutrient reduction credits
in proportion to the amount of funds contributed from its jurisdiction to the total construction
costs; and
2. The remaining earned nutrient reduction credits shall be allocated between Monroe
County, the City of Marathon, and the Islamorada, Village ofIslands in proportion to the annual
ROGO allocation of each to the total annual ROGO allocation for these local governments.
Nutrient reduction credits earned using funds provided by the State and matched by the County
3
in fiscal years 1997-98 and 1998-99 will be used to offset the nutrient impacts of the 88 new
residential permits per year, but may not be used for additional new residential permits until such
time as these funds generate more than 88 nutrient reduction credits for Years 3 and 4. For Year
5, the interim Permit Allocation System shall allow a minimum of 77 new residential permits. If
fewer than 77 nutrient reduction credits are earned in Year 5, the deficit shall be made up in Year
6 prior to issuance of any new permits. For Year 6 and beyond, the interim permit allocation
system shall limit the number of permits issued for new residential development to the number of
nutrient reduction credits earned within the same unincorporated RaGa area, except as
otherwise authorized herein. For all years the number of permits issued for new residential
development under the Rate of Growth Ordinance shall not exceed a total umt cap of 158 ~
new residential units per year. TR~ r~!!:t9r~g p~m:lit!!: (}9) ar~ ~Q~9'1r4g~g t9 b~ 9~9k4ti9 tg
affgrgabl~ R9y!!:iQg. This allocation represents the total number of new permits for development
that may be issued during a RaGO year. No exemptions or increases in the number of new
permits, other than that which may be expressly provided for in the comprehensive plan or for
which there is an existing agreement for affordable housing between the Department and the
local government in the critical areas, may be allowed. Monroe County shall develop a tracking
system for monitoring the nutrient reduction credits earned. The tracking system shall
commence upon the effective date of this rule and the number of nutrient reduction credits earned
shall be cumulative and may be applied to future years of the interim Permit Allocation System.
4
Table 1
Nutrient Reduction Credits
Treatment System Upgraded To
On-site
Treatment Centralized System
OWNR or
Equivalent
On-site Secondary Best Available Advanced
Treatment and Treatment Treatment Wastewater
Disposal (BA T) Treatment
Systems (A WT)
Cesspit 1 EDU Credit 1 EDU Credit 1.0 EDU Credit 1.5 EDU Credit
Substandard 0.5 0.5 1.0 1.5
OSTDS
Approved 0.5 0 1.5
OSTDS
Secondary nJa nJa 1 1.5
Treatment
Additionally, the unit cap for new residential development shall be linked to the following work
program which identifies actions necessary to correct existing wastewater and storm water
problems, as well as actions necessary to determine appropriate future growth. Beginning
September 30, 2003 A'Jgm:t 1, 2Q02, and each year of the work program thereafter, Monroe
County and the Department of Community Affairs shall report to the Administration
Commission documenting the degree to which the work program objectives for that year have
been achieved. The Commission shall consider the findings and recommendations provided in
those reports and shall determine whether substantial progress has been achieved toward
accomplishing the tasks of the work program. If the Commission determines that substantial
5
progress has not been made, the unit cap for new residential development shall be reduced by at
least 20 percent for the following year. If the Commission determines that substantial progress
has been made, then the Commission shall increase the unit cap for new residential development
for the following year up to a maximum of 158 .ua units. Other agencies identified in the work
program, or any interested persons, may likewise report and make recommendations for
consideration by the Commission. Notwithstanding any other dates set forth in this plan, the
dates set forth in the work program shall control where conflicts exist. For each task in the work
program, the Department of Community Affairs shall request of all relevant and appropriate
federal, state, regional, and local agencies that they contribute any relevant data, analysis and
recommendations, and that they take an active role in assisting the county in completing the task.
Each such agency shall prepare, in coordination with the county, a section to be included in
Monroe County's reports which indicates the agency's actions relative to the work plan. The
Department of Community Affairs shall specifically request that the Florida Keys National
Marine Sanctuary Water Quality Protection Program Steering Committee (Water Quality
Steering Committee) take an active role in coordinating with Monroe County, and relevant state
and federal agencies, in the implementation of the tasks related to water quality, wastewater and
storm water facilities, and in the development and implementation of the carrying capacity study.
The Steering Committee will provide technical assistance and substantive comments and
recommendations to ensure that the county's wastewater and storm water master plans and the
carrying capacity study are consistent with the objectives of the FKNMS Water Quality
Protection Program. The Steering Committee will make recommendations on wastewater
systems and Hot Spot priorities prior to implementation by the County. It is the intent of this
6
rule to accelerate the pace, and increase the effectiveness of the current cesspit replacement effort
through both a regulatory and an incentive-based program. No later than August, 1999 Monroe
County shall engage in a public education program to ensure that the public understands that the
County is committed to the swift identification and replacement of cesspits, as a full partner with
the Department of Health. The public education program shall explain the role of cesspit
removal in the overall context of the Work Plan and Wastewater Master Plan. The County and
the state shall request the participation of the Steering Committee in the public education
program as well as the Florida Keys Aqueduct Authority.
WORK PROGRAM
YEAR ONE (ending December 31, 1997)
A. through G. No change.
YEAR TWO (ending December 31, 1998)
A. through F. No change.
YEAR THREE (January 1, 1999 through July 12,2000)
A. through I. No change.
YEAR FOUR (July 13,2000 through July 12,2001)
A. through F. No change.
YEAR FIVE (July 13,2001 through July 12,2002)
A. through E. No change.
YEAR SIX (July 13,2002 through July 12,2003)
A. through D. No change.
7
E. Develop a Keys-wide master land acquisition plan which shall include: (1) a
strategy for the acquisition of those properties which should be preserved due their habitat
value as well as those other properties where future development is to be discouraged, (2) a
management plan for implementing the strategy, and (3) a reasonable, feasible plan for
securing funding for said land acquisition.
Agencies: County, Land Authority, DCA, DEP, SFWMD, Army COE, EPA, USFWS and
other interested parties to include representatives of environmental organizations and
development interests.
F. Initiate and complete a collaborative process for the adoption of land
development regulations, and/or comprehensive plan amendments as needed, that will
strengthen the protection of terrestrial habitat through processes such as the Permit
Allocation System and permitting processes, and the preservation and maintenance of
affordable housing stock.
Agencies: County, DCA, DEP, FFWC, USFWS, and other interested parties to include
representatives of environmental organizations and development interests.
YEAR SEVEN (July 13,2003 through July 12,2004)
A. and B. No change.
(36)-(65) No Change
NAME OF PERSON TO BE CONTACTED REGARDING THIS NOTICE OF CHANGE IS:
Mike McDaniel, Growth Management Administrator, 2555 Shumard Oak Boulevard,
Tallahassee, Florida 32399-2100, (850) 487-4545.
8