Item T5
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: April 20, 2005
Division:
Growth Management
Bulk Item: Yes_
No~
Department:
Planning
Staff Contact Person:
K. Marlene Conaway
AGENDA ITEM WORDING:
A pubic hearing to consider an Interim Development Ordinance (IDO) deferring the acceptance of applications for
redevelopment and conversion of marine facilities including commercial marinas and working waterfront within 365 days
of the effective date of the Ordinance or when the comprehensive plan and land development regulations become effective,
whichever comes first. (First of two public hearings)
ITEM BACKGROUND:
Monroe County is experiencing the loss of and redevelopment of marine facilities including commercial marinas and the
working waterfront including boat yards, wet and dry storage, fish houses and commercial fishing vessel dockage at an
unprecedented rate. The County finds that it is necessary to enact an Interim Development Ordinance deferring the
acceptance of development applications that seek development approval for the redevelopment and conversion of marine
facilities and working waterfront properties.
The proposed IDO is supported by Goals and Objectives of the 2010 Comprehensive Plan. Goal 212 directs the County to
prioritize shoreline land uses and establish criteria for shoreline development in order to preserve and enhance coastal
resources and to ensure the continued economic viability of the County. Goal 213 directs the County to ensure adequate
public access to the beach or shoreline. Objective 502.1 directs the County to promote the preservation and enhancement of
the existing ports and port related activities. The Florida State Senate is hearing legislation (SBP 7040) which will, among
other elements, include requirements that local comprehensive plans for coastal counties include criteria to encourage the
preservation of recreational and commercial working waterfronts.
The County has contracted with South Florida Regional Planning Council to prepare a public water access and marine
facilities plan and develop implementation measures including Comprehensive Plan and Land Development Regulations.
At the March 10, 2005 public meeting of the Development Review Committee, the Committee voted to recommend
approval of the proposed IDO to the Planning Commission. At the March 23, 2005 public meeting of the Planning
Commission, the Commission continued the item to the April 13, 2005 Planning Commission in Marathon. At the April
13, 2005 Planning Commission meeting, it is anticipated that the Commission will recommend action to the Board of
County Commissioners.
PREVIOUS REVELANT BOCC ACTION:
The Board of County Commissioners at a regular meeting on January 19, 2005, directed staff to prepare an interim
development ordinance to prevent further redevelopment and conversion of marine facilities including commercial marinas
and the working waterfront, and to implement a policy of "No-Net-Loss" of public access to marine facilities while County
legislation is being prepared.
CONTRACT/AGREEMENT CHANGES: NI A
STAFF RECOMMENDATIONS: Approval
TOTAL COST: N/ A
BUDGETED: Yes _No N/A
COST TO COUNTY: N/A
SOURCE OF FUNDS:
N/A
REVEl'.T{JE PRODUCING:
Yes N/A No
Year
APPROVED BY:
County Attorney
DIVISION DIRECTOR APPROVAL:
DOCUMENT A TION: Included X
DISPOSITION:
AGENDA ITEM #
INTERIM DEVELOPMENT ORDINANCE
DEFERMENT OF DEVELOPMENT
APPLICATIONS
FOR THE
REDEVELOPMENT AND CONVERSION
OF MARINE FACILITIES AND THE WORKING WATERFRONT
BOARD OF COUNTY COMMISSIONERS
KEY WEST
APRIL 20, 2005
SGCC-IDG - Workhlg Walecfront
Page I of /4
April 4, 2005
INTERIM DEVELOPMENT ORDINANCE
A REQUEST BY MONROE COUNTY DEPARTMENT OF
PLANNING AND ENVIRONMENTAL RESOURCES TO
ADOPT AN INTERIM DEVELOPMENT ORDINANCE
(IDO) DEFERRING THE ACCEPTANCE OF
APPLICATIONS FOR REDEVELOPMENT AND
CONVERSION OF MARINE FACILITIES INCLUDING
COMMERCIAL MARINAS AND THE WORKING
WATERFRONT WITHIN 365 DAYS OF THE EFFECTIVE
DATE OF THE ORDINANCE OR WHEN THE
COMPREHENSIVE PLAN AND LAND DEVELOPMENT
REGULA TIONS BECOME EFFECTIVE.
RECOMMENDA TIONS
Staff: Approval
DRC: Approval
PC: Approval
March 10, 2005
March 10, 2005
April 13, 2005
Staff Report
Resolution #D -05
Resolution #P -05
SOCC-IDO - Working Wateifront
Page 2 of 14
April 4, 2005
BOCC-IDO - Working Watnfronl
DRAFT BOCC ORDINANCE
Page 3 of 14
April 4, 2005
ORDINANCE NO. 2005
AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS ADOPTING AN INTERIM DEVELOPMENT
ORDINANCE DEFERRING THE ACCEPT ANCE OF DEVELOPMENT
APPLICATIONS FOR THE REDEVELOPMENT AND CONVERSION OF
MARINE FACILITIES INCLUDING COMMERCIAL MARINAS AND THE
WORKING WATERFRONT UNTIL LAND DEVELOPMENT REGULATIONS
AND COMPREHENSIVE PLAN AMENDMENTS ARE DRAFTED;
PROVIDING FOR EXEMPTIONS; PROVIDING FOR TRANSMITTAL TO
FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS (DCA); AND
PROVIDING FOR EXPIRATION WITHIN 365 DAYS OF THE EFFECTIVE
DATE OF THE ORDINANCE OR WHEN THE AMENDMENTS BECOME
EFFECTIVE, WHICHEVER COMES FIRST.
WHEREAS, the Board of County Commissioners at their meeting of August 18, 2004,
directed staff to have a public water access and marine facilities plan prepared for Monroe
County; and
\VHEREAS, the Board of County Commissioners discussed a policy of "No Net Loss"
of working waterfront or public access to the waterfront policy at their December 16, 2004
meeting; and
WHEREAS, Monroe County is experiencing the loss of afIfl-working waterfront and the
loss of public access to the water due to the redevelopment of marine facilities, including
commercial marinas, and the working waterfront, including boat yards, wet and dry storage, fish
houses and commercial fishing vessel dockage, at an unprecedented rate; and
WHEREAS, the continued loss of working waterfront and public access in the County is
and will be detrimental to the economic and social wellbeing and the health, safety, and welfare
of the citizens of the County; and
WHEREAS, there is a great concern that if nothing is done if the Comprehensive Plan
and land development rcgulations are not amended to control certain conversions and #tis
redevelopments, future losses of waterfront facilities working waterfront and public access will
negatively affect the economy and bring an end to critical marine services (e.g. boat yards),
commercial marinas that are available to the public, and traditional trades associated with
commercial fishing; and
WHEREAS, it is necessary to undertake a comprehensive and deliberate analysis of the
economic, social, and quality of life implications of continued conversions and redevelopments
and the impact of same on the public access and working waterfront; and
WHEREAS. preserving the status quo while undertaking said analysis will ensure that
BOCC-lDO -Working Waterfi'ont
Page I 0(7
April 12, 2005
the County's problems related to diminished public access and loss of working waterfront will
not be exacerbated during the time it takes to prepare a wcll-reasoned and equitable planning and
regulatory program; and
WHEREAS, preserving the status quo for a temporary period of time will prevent
development that could be inconsistent with the Comprehensive Plan and/or with pending
changes to the Comprehensive Plan or land development regulations: and
WHEREAS, a number of waterfront owners are exploring the possible change of use of
their property to private residential uses and private exclusive use of dockage which will further
decrease the public access and/or working waterfront; and
WHEREAS, Goal 212 of the 2010 Comprehensive Plan directs the County to prioritize
shoreline land uses and establish criteria for shoreline development in order to preserve and
enhance coastal resources and to ensure the continued economic viability of the County; and
WHEREAS, Goal 213 of the 2010 Comprehensive Plan directs the County to ensure
adequate public access to the beach or shoreline; and
\VHEREAS, Objective 502.1 of the 2010 Comprehensive Plan directs the County to
promote the preservation and enhancement of the existing ports and port related activities; and
WHEREAS, the County does not have an acctifate needs to update and augment its
inventory of public access points, pertinent waterfront facility locations and specific waterfront
uses in order to have ami a thorough and accurate understanding of the socio-economic data on
existing waterfront marine facilities; and
WHEREAS, the acceptance or processing of development applications during the term
of this ordinance would result in confusion for property owners, inefficiencies in governmental
services, and potentially redundant review processes and may unreasonably affect the
expectations of property owners; and
WHEREAS, the approval of development applications for conversions and
redevelopment, as described herein, will result in the continued and irreversible loss of public
access and working waterfront; and
WHEREAS, the exemption of certain uses and development actIVItIes, as provided
herein, advances the intent of this Ordinance and will not diminish public access or further the
loss of working waterfront; and
WHEREAS, the County recognizes the need to develop comprehensive plan and land
development regulations and programs to preserve marine facilities including commercial
BOCC~1DO eWorking Walelfront
Page 2 of7
April J 2. 2005
marinas that offer public access and provide for working waterfront that offer public access; and
WHEREAS, the Board of County Commissioners at their meeting of January 19,2005,
voted to contract with the South Florida Regional Planning Council to prepare the public water
access and marine facilities plan and implementation measures including Comprehensive Plan
and Land Development Regulations; and
WHEREAS, the County has committed necessary staff and resources to the development
of these policies and regulations; and
WHEREAS, this interim Ordinance and the planned amendments to the Plan and land
development regulations are necessary to protect the health, safety, and general welfare and to
advance the policies set forth in the Comprehensive Plan~ and
\VHEREAS, the utilization of the moratorium device as a temporary measure to
facilitate government decision making, study and adoption of comprehensive plan and land
development regulations is a legitimate governmental tool to facilitate logical and considered
growth and as a means of avoiding inefficient and ill-conceived development; and
WHEREAS, the County finds that it is necessary to enact an Interim Development
Ordinance deferring the acceptance of development applications that seek development approval
for the redevelopment of waterfront properties; and
WHEREAS, the County finds that a 365-day deferment of development applications and
approvals as provided herein is reasonable and is the minimum necessary to protect the health,
safety, and general welfare of the citizens of the County and to implement the Comprehensive
Plan; and
WHEREAS, the temporary deferral of development applications and approvals, as
provided herein, are not intended nor shall it be construed to inhibit the existing lawful use of
properties in accordance with the Comprehensive Plan and land development regulations; and
WHEREAS, Chapter 125, F.S. authorizes the Board of County Commissioners to adopt
ordinances to provide standards protecting against imminent and immediate threat to the health,
safety and welfare of the citizens of Monroe County; and
\VHEREAS, this Interim Development Ordinance constitutes a valid exercise of the
County's police power and is otherwise consistent with Section 163.316, et seq., F.S., which,
inter alia, encourages the use of innovative land development regulations including provisions
like moratoria to implement the adopted comprehensive plan; and
WHEREAS, the Board of County Connnissioners at a regular meeting on January 19,
BOCC-IDO ~Working Walerfront
Page 3 of7
April! 2, 2005
2005, directed staff to prepare an ordinance deferring acceptance of applications for
redevelopment of marine facilities including commercial marinas and the working waterfront
(boat yards, wet and dry storage, tlsh houses and commercial fishing vessel dockage) that would
diminish public access or result in the loss of working front, while staff prepares amendments to
the 20 I 0 Comprehensive Plan and Land Development Regulations; and
WHEREAS, following direction of the Board of County Commissioners, the Growth
Management staff immediately undertook the development of this Interim Development
Ordinance and preparation of a contract for the development of a public water access and marine
facilities plan and implementation measures including Comprehensive Plan and Land
Development Regulations; and
WHEREAS, the Planning Commission has reviewed the draft Interim Development
Ordinance and considered rooommended approval to the Board of County Commissioners; and
WHEREAS, the Board of County Commissioners has reviewed and considered the draft
Interim Development Ordinance recommended by the Planning Commission and Planning staff;
and
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
Section 1. The purpose and intent of this Interim Development Ordinance is to implement
the Board of County Commissioners' directive of January 19, 2005, to prepare an interim
development ordinance to prevent further redevelopment and conversion of marine facilities
including commercial marinas and the working waterfront, that result in the loss of working
waterfront and diminish public access a:aa in order to implement a policy of "No-Net-Loss" of
working waterfront and public access to marine facilities while legislation is being prepared.
Section 2. Except as provided tor in Section 5 of this ordinance, R:redevelopment and
conversion of existing uses and structures, as used in this ordinance, includes the following:
. Any change of use from a water dependent use to a water enhanced or a non-water
dependent use of a commercial marina.
. Any division of uplands and/or bay bottom of existing marine facilities into individual
parcels regardless of type of ownership.
. Any modification, improvements or expansions of existing marine facilities, resulting in
the loss of public access from both land and water to the v.'aterfront and '.vater body.
. Any change of use of the working waterfront to a commercial marina or a non-water
dependent use.
Section 3.
The following definitions apply in this ordinance:
B()CC~fDO ..Working WateJjiYHlI
Page 40f7
April!l. l005
. Existing uses and structures means those uses and structures in existence prior to and
including February 28, 2005.
. Commercial marina means a facility with three or more slips for the mooring, berthing,
storing or securing of watercraft and may include accessory retail and service uses, but
not including docks accessory to land based dwelling units or individual berths under
private ownership.
. Marine facility means commercial marinas, the working waterfront, and any other public
access point including boat ramps that provide public access to the navigable waters of
the state.
. Public access means the ability of members of the public to physically reach, enter, or use
a water-body by either land or water.
. Working waterfront means a parcel or parcels of real property that provide access for
water dependent boat yards, wet and dry storage, fish houses (fish landings, processing
and packaging) and commercial fishing vessel dockage; it does not mean commercial
marinas for the dockage of pleasure craft.
. Water dependent use means a use or portions of a use that can only be carried out on, in
or adjacent to water areas because the use requires access to the water body.
. Water enhanced use means a use that is not a water dependent use but benefits
economically or aesthetically by its location on the waterfront; examples include
restaurants, hotels and residential uses.
Section 4. During the time this ordinance is in effect as specified herein, there shall be a
moratorium upon the issuance of building permits, acceptance of development applications or
issuance of development orders and development permits within unincorporated Monroe County
concerning the redevelopment or conversion of existing uses and structures related to marine
facilities, including commercial mminas and the working waterfront, that result in diminished
public access or loss of working waterfront, except as provided herein.
Section 5.
Exempt from this ordinance is are the following:
.
Development under an approved Conditional Use Permit, general maintenance,
repair and/or safety improvements~ and,
.
Any modification, improvements, or expansion to existing marine facility that
does not diminish public access and does not result in the loss of working
waterfront.
Section 6. Pursuant to its lawful authority and the pending legislation doctrine as set forth in
Smith v. Citv of Clearwater, 383 So.2d 681 (Fla. 2d DCA, 1980) the Board of County
Commissioners hereby establishes the interim development regulations set forth in this
Ordinance, which shall remain in full force and effect until the expiration of this legislation
within one year of its effective date or whenever the plan and land development regulations
Boce.IDO -Working Waterfront
Page 5 of7
April!2, 2005
become effective, whichever comes first.
Section 7: Until expiration of this Interim Development Ordinance no application for a building
permit or development approval for any development or redevelopment, that meets the criteria for
review identified in Section 2 hereof, shall be granted pursuant to an application or request with a
submittal date of March 1,2005, or later.
Section 8: Any application for a building permit or development approval ~ith a submittal date
of February 28,2005, or earlier shall be exempt from this Interim Development Ordinance.
Section 9: As of the effective date of this Ordinance no application for a building permit or
development approval, meeting the criteria for review identified in Section 2 hereof, shall be
accepted or processed by the Growth Management Division, except applications exempt hereunder
and development awarded a vested rights determination pursuant to Section 11 hereof.
Section 10: This Ordinance shall not be construed to prohibit the application for or issuance of a
building permit or development approval for any development or redevelopment that does not meet
the criteria for review identified in Section 2 hereof, or that does not result in diminished public
access or the loss of working waterfront, that is allowed pursuant to the Monroe County Land
Development Regulations and the 201 0 Comprehensive Plan.
Section 11: Any property owner adversely affected by the provlSlons of this Interim
Development Ordinance may seek a determination that the owner's proposed development or
redevelopment is vested against the provisions of this Interim Development Ordinance, by filing
with the Director of Growth Management, together with an administrative fee in the amount of
$400, a vested rights application setting forth facts establishing the applicant met, prior to the date
that this Ordinance is adopted by the Board of Monroe County Commissioners, the vested rights
standards set forth in Section 9,5-181, Monroe County code. Such application must be filed no later
than sixty (60) days after the effective date of this ordinance.
Section 12: The County Administrator is directed to have the Growth Management Division
begin immediately preparing the draft text amendments and other supporting studies in cooperation
with the Planning Commission in order to address the issue of redevelopment and conversion of
marine facilities that result in diminished public access or the loss of working waterfront.
Section 13. If any section, subsection, sentence, clause, item, charge or prOVISIon of this
ordinance is held invalid, the remainder shall not be affected by such invalidity.
Section 14. All ordinances or parts of ordinances in conflict with this ordinance are hereby
repealed to the extent of said conflict.
Section 15. The ordinance is hereby transmitted to the Florida Department of Community Affairs
pursuant to Chapter 380, Florida Statutes and the DCA is requested to review and approve it by
Immediate Final Order in accordance with F.S.120.569(2)(n), in recognition of the public
importance of retaining the working waterfront, marine facilities, and public access to the
waterfront, and to prevent the threat of further loss thereof as "an immediate danger to the public
health, safety, or welfare".
BOCC-IDO -Working WaterfroM
Page 60f7
Aprill2. 2005
Section 16. This ordinance shall be filed in the Office of the Secretary of State of the State of
Florida, but shall not become effective until a notice is issued by the Department of Community
Affairs or Administration Commission approving ordinance pursuant to Florida Statutes, Chapter
380.
Section 17. This ordinance shall stand repealed as of 11 :59 p.m. on the 365th day after the
effective date of the Ordinance, unless repealed sooner by the Board of County Commissioners or
upon the adoption of amendments to the comprehensive plan and land development regulations
addressing public access and marine facilities.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at
a regular meeting held on the _ day of , 2005.
Mayor Dixie Spehar
Mayor Pro Tem Charles "Sonny" McCoy
Commissioner Murray NelsOIi
Commissioner George Neugent
Commissioner David Rice
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
BY
Mayor Dixie Spehar
(SEAL)
ATTEST: DANNY L KOLHAGE, CLERK
MONROE COUNTY ATTORNEY
APPR9V~P A~ TO FORM
~ // t~;'r:;~~/}
Ioi .j .~s ,{C)i"{C
Deputy Clerk
Oil :
BOCC~[f)O -Working Waierfi-orrl
Page 70f7
April J 2, 2005
Baec Staff Reporl~IDa~ Working Water:!i"Onl
BOCC STAFF REPORT
Page 10 of 14
April 4, 2005
Monroe County Department of Planning and Environmental Resources
2798 Overseas Highway Marathon Florida 33050
~
April 1, 2005
TO: Board of County Commissioner
FROM: K. Marlene Conaway, Director of Planning and Environmental Resources
RE: Interim Development Ordinance-Marine Facilities and Working Waterfronts
fvfEETING DATE: April 20, 2005
Summary
The Board of County Commissioners (BOCC) at a regular meeting on January 19, 2005, directed
Growth Management staff to prepare an Interim Development Ordinance (IDO) defening the
acceptance of applications for redevelopment and conversion of marine facilities including
commercial marinas and the working waterfront (boat yards, wet and dry storage, fish houses and
commercial fishing vessel dockage) while staff prepares amendments to the 2010 Comprehensive
Plan and Land Development Regulations (LDR). Concurrently, following direction of the BOCC at
the same regular meeting on January 19, 2005, Growth Management staff immediately undertook
the development of this Interim Development Ordinance and preparation of a contract for the
development of a public water access and marine facilities plan and implementation measures
including 2010 Comprehensive Plan and Land Development Regulations.
This rDO provides for specific exemptions and clarifying definitions. The IDO is to expire within
365 days from the effective date of the Ordinance, or when the 2010 Comprehensive Plan and LDR
amendments become effective, whichever comes first.
Background
Monroe County is experiencing the loss of and redevelopment of marine facilities and the working
waterfront including commercial marinas, boat yards, wet and dry storage, fish houses and
commercial fishing vessel dockage, at an unprecedented rate. A number of waterfront owners are
exploring the possible change of use of their property, to private residential uses and private
exclusive use of dockage which will further decrease the public access and working waterfront
usages. There is great concern that if nothing is done to control this redevelopment that future
losses of waterfront facilities will negatively affect the economy and bring an end to critical marine
services (e.g. boat yards), commercial marinas that are available to the public and traditional trades
associated with commercial fishing and other water-dependent uses. The pressure to redevelop
waterfront properties to non-water related or non-water dependent type uses is such that unless
acceptance of such applications is deferred, there is not time to write land development regulations
or Comprehensive Plan amendments to adequately address the probable negative impacts of the
rapid rate of change.
The County does not have an accurate inventory of pertinent waterfront facility locations and
specific waterfront uses and a thorough understanding of the socio-economic data on existing
BOCC Stqff Report-IDO- Working Waterfront
Page 11 of /4
April 4, 2005
waterfront marine facilities. However, the County recognizes the need to develop comprehensive
plan and land development regulations and programs to preserve marine facilities including
commercial marinas and the working waterfront. A "no net loss" of public access to the waterfront
policy was discussed by the BOCC at their December 16, 2004, meeting. To meet these needs, the
Board of County Commissioners, at their meeting of August 18, 2004, directed staff to have a
public water access and marine facilities plan prepared for Monroe County. At their meeting of
January 19,2005, the BOCC voted to contract with the South Florida Regional Planning Council to
prepare the public water access and marine facilities plan and implementation measures including
Comprehensive Plan and Land Development Regulation amendments.
The contract to prepare the plan and implementation measures is further substantiated by Goal 212
of the 2010 Comprehensive Plan which directs the County to prioritize shoreline land uses and
establish criteria for shoreline development in order to preserve and enhance coastal resources and
to ensure the continued economic viability of the County; Goal 213 of the 2010 Comprehensive
Plan which directs the County to ensure adequate public access to the beach or shoreline; and
Objective 502.1 of the 2010 Comprehensive Plan which direct the County to promote the
preservation and enhancement of the existing ports and port related activities.
Furthermore, the Florida State Senate is reviewing a proposed committee bill, SPB 7040, which will
include enunciating the State's interest in maintaining recreational and commercial working
waterfronts and public access to waterfront property, and require the future land use plan element of
local comprehensive plans for coastal counties to include criteria to encourage the preservation of
recreational and commercial working waterfronts. Provision of tax incentives and deferrals are also
included in SPB 7040. The confidence level of this legislation passing is high.
The purpose of the proposed deference of accepting applications is to provide time for the
preparation of the public water access and marine facilities plan and implementation measures by
the South Florida Regional Planning Council. This IDO will also provide time for staff to draft the
necessary Land Development Regulations and 2010 Comprehensive Plan amendments, the Planning
Commission to review the proposed changes and the public time to consider, understand and
comment on the amendments. Monroe County is acting expeditiously by proposing this Interim
Development Ordinance so that Comprehensive Plan and LDR amendments can be developed
which will be in coordination with the pending State legislation.
Redevelopment and conversion of existing uses and structures, as used in this Ordinance, includes
the following:
. Any change of use from a water dependent use to a water enhanced or a non-water
dependent use of a commercial marina.
. Any division of uplands and/or bay bottom of existing marine facilities into individual
parcels regardless of type of ownership.
. Any modification, improvements or expansions of existing marine facilities resulting in loss
of public access from both land and water to the waterfront and water body.
. Any change of use of the working waterfront to a commercial marina or a non-water
dependent use.
BOCC Staff Report-IDO- Working Waterfront
Page 12 of14
April 4. 2005
The following definitions apply in this ordinance:
. Existing uses and structures means those uses and structures In existence prior to and
including February 28, 2005.
. Commercial marina means a facility with three or more slips for the mooring, berthing,
storing or securing of watercraft and may include accessory retail and service uses, but not
including docks accessory to land based dwelling units or individual berths under private
ownership.
. Marine facility means commercial marinas, the working waterlront, and any other public
access point including boat ramps that provide public access to the navigable waters of the
state.
. Public access means the ability of members of the public to physically reach, enter or use a
water-body by either land or water.
. Working waterlront means a parcel or parcels of real property that provide access for water
dependent boat yards, wet and dry storage, fish houses (fish landings, processing and
packaging) and commercial fishing vessel dockage, it does not mean commercial marinas
for the dockage of pleasure craft.
. Water dependent use means a use or portions of a use that can only be carried out on, in or
adjacent to water areas because the use requires access to the water body.
. Water enhanced use means a use that is not a water dependent use but benefits economically
or aesthetically by its location on the waterlront, examples include restaurants, hotels and
residential uses.
The following exemptions are provided in this Ordinance:
. Exempt from this ordinance is development under an approved Conditional Use Permit,
general maintenance, repair and/or safety improvements.
. Any application for a building permit or development approval with a submittal date of
February 28, 2005 or earlier shall be exempt from this Interim Development Ordinance.
Until expiration of this Interim Development Ordinance, no building permit application or planning
approval for any development or redevelopment that meets the criteria as used in this ordinance,
shall be granted pursuant to an application or request with a submittal date of March 1, 2005, or
later. This ordinance shall not be construed to prohibit the issuance of a building permit or planning
approval for any development or redevelopment that does not meet the criteria for review identified
as "redevelopment" or "conversion" as used in this ordinance that is allowed pursuant to the
Monroe County Land Development Regulations and the 2010 Comprehensive Plan.
soee StaffReport.lDO.Workillg Waterfront
Page 13 (~f 14
April 4, 2005
As of the effective date of the ordinance, no building permit application or development approval
meeting the criteria for review identified as "redevelopment" or "conversion" as used in this
ordinance, shall be accepted or processed by the Growth Management Division, except applications
exempt hereunder and development awarded a vested rights determination pursuant to the
following:
Any property owner adversely affected by the provIsIons of this Interim Development
Ordinance may seek a determination that the owner's proposed development or
redevelopment is vested against the provisions of this Interim Development Ordinance, by
filing with the Director of Growth Management, together with an administrative fee in the
amount of $400, a vested rights application setting forth facts establishing the applicant met,
prior to the date that this ordinance is adopted by the Board of Monroe County
Commissioners, the vested rights standards set forth in Section 9.5-181, Monroe County
code. Such application must be filed no later than sixty (60) days after the effective date of
this ordinance.
Staff Recommendation
The Planning Staff recommends the Monroe County Board of County Commissioners APPROVE
the attached Interim Development Ordinance deferring development applications for the
redevelopment and conversion of marine facilities and the working waterfront.
Boce StaffReporUDO~Workillg Waterfront
Page 14 (if 14
April 4, 2005
Session :Bills : : flsenate.gov
Page 1 of 28
Senate Bill s b7040pb
CODING: Words ;,trie:kcFI are deletions; words qnd.~IUned are additions.
Florida Senate - 2005
(PROPOSED COMMITTEE BILL)
SPB 7040
FOR CONSIDERATION By the Committee on Community Affairs
578-957A-05
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A bill to be entitled
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An act relating to waterfront property;
amending s. 163.31 ZZ / F. S .; requiring the
future land use plan element of a local
comprehensive plan for a coastal county to
include criteria to encourage the preservation
of recreational and commercial working
waterfronts; including public access to
waterways within those items indicated in a
recreation and open space element; amending s.
163.31Z~/ F.S.; providing requirements for the
shoreline use component of a coastal management
element with respect to recreational and
commercial working waterfronts; amending s.
Z53.~3, F.S.; requiring the Board of Trustees
of the Internal Improvement Trust Fund to
encourage certain uses for sovereign submerged
lands; establishing the WaLerfronts Florida
Program within the Department of Community
Affairs; providing definitions; requiring that
the program implement the Waterfronts Florida
Partnership Program in coordination with the
Department of Environmental Protection;
http://199.44.254.194/cgi-bin/view -page.pl?File=sb 7040pb.html&Directory=session/2005/... 4/1/2005
Session :Bills : : flsenate.gov
Page L 01 L~
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requiring the Department of Environmental
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Protection, in coordination with the Fish and
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Wildlife Conservation Commission, to study the
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use of state parks for recreational boating;
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requiring that the department make
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recommendations to the Governor and the
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Legislature; amending s. 3ZZ,41, F. S. ;
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providing for funding certain boating grant
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CODING: Words f::t:':"i'~lnJn are deletions; words
are additions.
Florida Senate - 2005
578-957A-05
(PROPOSED COMMITTEE BILL)
SPB 7040
1
programs administered by the Fish and Wildlife
2
Conservation Commission; amending 5. 328~Z2,
3
F.S.; increasing vessel registration fees;
4
providing for a portion of the fees to be
5
designated for boating grant programs; amending
6
s. J2~,76, F.S.; clarifying the use of funds
7
designated for boating grant programs; creating
8
s. 324.07, F.S.; enunciating the state's
9
interest in maintaining recreational and
10
commercial working waterfronts; defining the
11
term "recreational and commercial working
12
waterfront"; creating 5S. 197.304-197.3047,
13
F.S.; providing a tax deferral for ad valorem
14
taxes and non-ad valorem assessments covered by
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15
a tax certificate and levied on recreational
16
and commercial working waterfronts; providing
17
certain exceptions; specifying the rate of the
18
deferral; providing that the taxes,
19
assessments, and interest deferred constitute a
20
prior lien on the property; providing an
21
application process; providing notice
22
requirements; providing for a decision of the
23
tax collector to be appealed to the value
24
adjustment board; providing for calculating the
25
deferral; providing requirements for deferred
26
payment tax certificates; providing for the
27
deferral to cease if there is a change in the
28
use of the property; requiring notice to the
29
tax collector; requiring payment of deferred
30
taxes, assessments, and interest under certain
31
circumstances; authorizing specified parties to
2
CODING: Words "tci"hHl are deletions; words
are additions.
Flor~da Senate - 2005
578-957A-OS
(PROPOSED COMMITTEE BILL)
SPB 7040
1
make a prepayment of deferred taxes; providing
2
for distribution of payments; providing for
3
construction of provisions authorizing the
4
deferments; providing penalties; providing for
5
a penalty to be appealed to the value
6
adjustment board; providing an effective date.
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7
8 Be It Enacted by the Legislature of the State of Florida:
9
10
Section 1. Paragraphs (a) and (e) of subsection (6) of
11 section 16:1,117.Z, Florida Statutes, are amended to read:
12 1.f13.31ZZ Required and optional elements of
13 comprehensive plan; studies and surveys.--
14 (6) In addition to the requirements of subsections
15 (1)-(5), the comprehensive plan shall include the following
16 elements:
17
(a) A future land use plan element designating
18 proposed future general distribution, location, and extent of
19 the uses of land for residential uses, commercial uses,
20 industry, agriculture, recreation, conservation, education,
21 public buildings and grounds, other public facilities, and
22 other categories of the public and private uses of land.
23 Counties are encouraged to designate rural land stewardship
24 areas, pursuant to the provisions of paragraph (11) (d), as
25 overlays on the future land use map. Each future land use
26 category must be defined in terms of uses included, and must
27 include standards to be followed in the control and
28 distribution of population densities and building and
29 structure intensities. The proposed distribution, location,
30 and extent of the various categories of land use shall be
31 shown on a land use map or map series which shall be
3
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Florida Senate - 2005
578-957A-05
(PROPOSED COMMITTEE BILL)
SPB 7040
1 supplemented by goals, policies, and measurable objectives.
2 The future land use plan shall be based upon surveys, studies,
3 and data regarding the area, including the amount of land
4 required to accommodate anticipated growth; the projected
5 population of the area; the character of undeveloped land; the
6 availability of public services; the need for redevelopment,
7 including the renewal of blighted areas and the elimination of
8 nonconforming uses which are inconsistent with the character
9 of the community; the compatibility of uses on lands adjacent
10 to or closely proximate to military installations; and, in
11 rural communities, the need for job creation, capital
12 investment, and economic development that will strengthen and
13 diversify the community's economy. The future land use plan
14 may designate areas for future planned development use
15 involving combinations of types of uses for which special
16 regulations may be necessary to ensure development in accord
17 with the principles and standards of the comprehensive plan
18 and this act. The future land use plan element shall include
19 criteria to be used to achieve the compatibility of adjacent
20 or closely proximate lands with military installations. In
21 addition, for rural communities, the amount of land designated
22 for future planned industrial use shall be based upon surveys
23 and studies that reflect the need for job creation, capital
24 investment, and the necessity to strengthen and diversify the
25 local economies, and shall not be limited solely by the
26 projected population of the rural community. The future land
27 use plan of a county may also designate areas for possible
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~age 0 or L.O
28 future municipal incorporation. The land use maps or map
29 series shall generally identify and depict historic district
30 boundaries and shall designate historically significant
31 properties meriting protection.
4
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are additions.
Florida Senate - 2005
578-957A-05
(PROPOSED COMMITTEE BILL)
SPB 7040
1
2
3 'r!'Lt~,(;rf1>:;nt::;,~~defincd~.~~_}:' 2", :rL-,-- The future land use
4 element must clearly identify the land use categories in which
5 public schools are an allowable use. When delineating the
6 land use categories in which public schools are an allowable
7 use, a local government shall include in the categories
8 sufficient land proximate to residential development to meet
9 the projected needs for schools in coordination with public
10 school boards and may establish differing criteria for schools
11 of different type or size. Each local government shall
12 include lands contiguous to existing school sites, to the
13 maximum extent possible, within the land use categories in
14 which public schools are an allowable use. All comprehensive
15 plans must comply with the school siting requirements of this
16 paragraph no later than October 1, 1999. The failure by a
17 local government to comply with these school siting
18 requirements by October 1, 1999, will result in the
19 prohibition of the local government's ability to amend the
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Page 7 of28
20 local comprehensive plan, except for plan amendments described
21 in s. 163~J187(1) (b), until the school siting requirements are
22 met. Amendments proposed by a local government for purposes of
23 identifying the land use categories in which public schools
24 are an allowable use or for adopting or amending the
25 school-siting maps pursuant to s. 163.31776(3) are exempt from
26 the limitation on the frequency of plan amendments contained
27 in s. 1QJ.31~Z. The future land use element shall include
28 criteria that encourage the location of schools proximate to
29 urban residential areas to the extent possible and shall
30 require that the local government seek to collocate public
31 facilities, such as parks, libraries, and cowmunity centers,
5
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are additions.
Florida Senate - 2005
578-957A-05
(PROPOSED COMMITTEE BILL)
SPB 7040
1 with schools to the extent possible and to encourage the use
2 of elementary schools as focal points for neighborhoods. For
3 schools serving predominantly rural counties, defined as a
4 county with a population of 100,000 or fewer, an agricultural
5 land use category shall be eligible for the location of public
6 school facilities if the local comprehensive plan contains
7 school si~ing criteria and the location is consistent with
8 such criteria. Local governments required to update or amend
9 their comprehensive plan to include criteria and address
10 compatibility of adjacent or closely proximate lands with
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Page 8 of 28
11 existing military installations in their future land use plan
12 element shall transmit the update or amendment to the
13 department by June 30, 2006.
14
(e) A recreation and open space element indicating a
15 comprehensive system of public and private sites for
16 recreation, including, but not limited to, natural
17 reservations, parks and playgrounds, parkways, beaches and
18 public access to beaches, open spaces,
and other
19 recreational facilities.
20
Section 2. Paragraph (g) of subsection (2) of section
21 1Q_3...l1Z.8, Florida Statutes, is amended to read:
22
163~178 Coastal management.--
23
(2) Each coastal management element required by s.
24 1~:h3J77(6) (g) shall be based on studies, surveys, and data;
25 be consistent with coastal resource plans prepared and adopted
26 pursuant to general or special law; and contain:
27
(g) A shoreline use component
u ~ identifies
28 public access to beach and shoreline areas and addresses the
29 need for water-dependent and water-related facilities,
30 including marinas, along shoreline areas.
31
6
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ined are additions.
Florida Senate - 2005
578-957A-OS
(PROPOSED COMMITTEE BILL)
SPB 7040
1
2
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Page 9 of 28
3
Section 3. Present subsection (15) of section Z5~.03,
4 Florida Statutes, is redesignated as subsection (16), and a
5 new subsection (15) is added to that section, to read:
6
b~J.03 Board of trustees to administer state lands;
7 lands enumerated.--
8
9
10
11
12
13
Section 4.
14 ~;..~~ch.0~~ca.l ~~~,~~~~ i~;;!7~!~~,ncc' ariC s'.lr)L'?(-?~~_'l~ tr:i C~'),~~~~rrLurl,~~~}<::~"3 in
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20
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22
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24
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30
31 ~", "~
7
'j", ~~~
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Page 1001'28
CODING: Words J;:~r' g'~gw. are deletions; words
are additions.
Florida Senate - 2005
578-957A-05
(PROPOSED COMMITTEE BILL)
SPB 7040
1
2
3
4
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Section 5.
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Page 11 of28
24
25
26
27 ."t'~:'~'!':c,~?IfLn\c::Xldat~c~i{)rJ.~~ w;~Jl .~~L_ ::::<<'-~.. _~~~~~~~~~~(0 .1:..S:-~~(,:j, '.c..'-- ~_~.':? tc!".
28
29
30
31
8
CODING: Words ctr"~k",rxl are deletions; words
are additions.
Florida Senate - 2005
578-957A-05
(PROPOSED COMMITTEE BILL)
SPB 7040
1
2 Srl.d" sut)rnit ~~} :r:'~?~)():rt:: s~urnrna.,rj :~::i~n_::li_!~::: f_:Lr~j.i..n'-J.:~~~~
3
4
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6
Section 6. Section 327AZ, Florida Statutes, is
7 amended to read:
8
327.4Z Competitive grant programs.--The commission
9 shall develop and administer competitive grant programs funded
10
with moneys transferred pursuant to
....... 2.QQ,Jl06 ( 1) (d)
11 3J.S..72,J J;'. Grants may be awarded for the construction and
12 maintenance of publicly owned boat ramps, piers, and docks;
13 boater education; deployment of manatee technical avoidance
14 technology; and economic development initiatives that promote
15 boating in the state. The commission may adopt rules pursuant
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Page 12 of28
16 to chapter 120 to implement this section.
17
Section 7. Subsections (1) and (15) of section 1?8.72,
18 Florida Statutes, are amended to read:
19
J?8.72 Classification; registration; fees and charges;
20 surcharge; disposition of fees; fines; marine turtle
21 stickers.--
22
(1) VESSEL REGISTRATION FEE.--Vesse1s that are
23 required to be registered shall be classified for registration
24 purposes according to the following schedule, and the
25 registration certificate fee shall be in the following
26 amounts:
27 Class A-1--Less than 12 feet in length, and all canoes
28 to which propulsion motors have been attached, regardless of
29
length... . ~ . ~ . 'It . .. . ~ . . . . . . . . . ... . . . .. . . .. .. . . .. . .. . .. .. . . . .. . .. .. . .. .. .. . .... "
30 ~
31 ..CI..s2.aw~~:; c rJ -~:)_ n. q (:r~.:~~~n t p ~c ::; SL~:iJ rn ~:.;) .. ~ _~:~T~~~~~_:.~.~~_:..C:CT~~~:~m~m,:...~--.:iLm
9
CODING: Words c::r~.C'<'<Qn are deletions; words
are additions.
Florida Senate - 2005
578-957A-05
(PROPOSED COMMITTEE BILL)
SPB 7040
1
Class A-2--12 feet or more and less than 16 feet in
2 length.............................................
~
3 (To county) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.85
4 ...~ T () J;?S'; ~~~ t~ tJj3~~~:-_I?I~~,~~~JN":._~-_:'_.:~c. ~ _~ . . ~ .. ~ ._~_~ .. ~ . ~ ~ ~_.,,:@:,~:--':~~- \ -, .
5 Class 1--16 feet or more and less than 26 feet in
6 length............................................ .?..~.'.;C ~
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Page 13 of28
7
(To county)............................................... 8.85
8
9
Class 2--26 feet or more and less than 40 feet in
10 length............................................. (<3~) c.!" r:n
11 (To county)............................................ - .32.85
12 1\ rn ~ ~_lLo 3. t =- :":,~ r",... ~J r_,:~;~. x r --~ ~'J ~. ~ :~_:?' .. ~ ~ . .. .. ~ . ~ _ to ~ . . .. . . ~ .. .. ~ .. ~ ~ . ~ ~ .. .. ~ . .~_'.-)~~~ ,-_ ':.-
13 Class 3--40 feet or more and less than 65 feet in
14 length............................................
~
15 (To county) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56.85
16
. (..:L () L~,~~.~~~i~- ~L n. ~:) q -r b n .~:~~_ 'p r D <:r:c ,j.,m~~: )
. . ~ . ~ ~ ~ + ~ . .. . . .. .. . ~ . ~ .. ~ . ~ ~ .. .. . .. ~ ~ ,.'
17
Class 4--65 feet or more and less than 110 feet in
18 length................... _ . . . . . . . . . . . . . . . . . . _ . . . . . } /. 3
~
1 9 ( Toe 0 un t y) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 . 85
20 (~L~2_..~r2..odtinq~uwSL~'2n,t Q2~g~g.:r.a:rcl:3) .. ~ .. '_" . ~ .. . . 4 .. 4_~_:'_..~~m~~m=~'~"':_~~': " .. " . ~2.s A CJ
21 Class 5--110 feet or more in length..............
22 122 :5Q
23 (To county).............................................. 86. 85
24 .(To ~!;)(Jd1:~,:L:r;.q .:J~!~.j!nt p:["oq!~,~~rns) .. . . . 4,~~ M ~ . . ~ . .... _'_~.~:~:.~.: .. .. . . ~ .. ~~~~:'..~. . . 3J., CO
25 Dealer registration certificate ...... ..... .2U.5Q l~ en
26
.. ( 'T' qc~ b i=' a. t 5!'i. ()"
<JI.';j.n'l::.
p:c :2~J}.:~;iIa,-::'
.....~~.... ~~.~ ~.. .>.~ ."~ ~~~... ~
~'.i' ~ ,,,: l_'
27
28 The county portion of the vessel registration fee is derived
29 from recreational vessels only.
30
(15) DISTRIBUTION OF FEES.--Except for the first $1,
31 which shall be remitted to the state for deposit into the Save
10
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are additions.
Florida Senate - 2005
(PROPOSED COMMITTEE BILL)
SPB 7040
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Page 140f28
578-957A-05
1 the Manatee Trust Fund created within the Fish and Wildlife
2 Conservation Commission, moneys designated for the use of the
3 counties, as specified in subsection (1), shall be distributed
4 by the tax collector to the board of county commissioners for
5 use as provided in this section. Such moneys to be returned to
6 the counties are for the sole purposes of providing
7 recreational channel marking and public launching facilities
8 and other boating-related activities, for removal of vessels
9 and floating structures deemed a hazard to public safety and
10 health for failure to comply with s. 3ZI.53, and for manatee
11 and marine mammal protection and recovery.
12
13
14
15 (~~.>~~:\ p~.~c,t :i~~~~, .i TJ (~:c_"__~:_i:~P t: ~~,~'~~~'"O r (>~{ _L d,.{~~:,';G-_~:~~~~~ 3 2~. 4 7 ~~~
16
Section 8. Subsection (1) of section 32~J6, Florida
17 Statutes, is amended to read:
18 32&,76 Marine Resources Conservation Trust Fund;
19 vessel registration funds; appropriation and distribution.--
20 (1) Except as otherwise specified in this subsection
21 and less $1.4 million for any administrative costs which shall
22 be deposited in the Highway Safety Operating Trust Fund, in
23 each fiscal year beginning on or after July 1, 2001, all funds
24 collected from the registration of vessels through the
25 Department of Highway Safety and Motor Vehicles and the tax
26 collectors of the state, except for those funds designated as
27 the county portion
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Page 15 of28
28JJ::,n!:s pOIt:ic[; pursuant ~o s. JZ8]1{1), shall be deposited in
29 the Marine Resources Conservation Trust Fund for recreational
30 channel marking; public launching facilities; law enforcement
31 and quality control programs; aquatic weed control; manatee
11
CODING: Words [''''r; -:,l."?n are deletions; words
are additions.
Florida Senate - 2005
578-957A-05
(PROPOSED COMMITTEE BILL)
SPB 7040
1 protection, recovery, rescue, rehabilitation, and release; and
2 marine mammal protection and recovery. The funds collected
3 pursuant to s. ~28.12(1) shall be transferred as follows:
4
(a) In each fiscal year, an amount equal to $1.50 for
5 each commercial and recreational vessel registered in this
6 state shall be transferred by the Department of Highway Safety
7 and Motor Vehicles to the Save the Manatee Trust Fund and
8 shall be used only for the purposes specified in s. T!Q;.1.f. (4) .
9
(b) An amount equal to $2 from each recreational
10 vessel registration fee, except that for class A-I vessels,
11 shall be transferred by the Department of Highway Safety and
12 Motor Vehicles to the Invasive Plant Control Trust Fund in the
13 Department of Environmental Protection for aquatic weed
14 research and control.
15
(c) An amount equal to 40 percent of the registration
16 fees from commercial vessels shall be transferred by the
17 Department of Highway Safety and Motor Vehicles to the
18 Invasive Plant Control Trust Fund in the Department of
19 Environmental Protection for aquatic plant research and
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21
20 control.
(d) An amount equal to 40 percent of the registration
22 fees from commercial vessels shall be transferred by the
23 Department of Highway Safety and Motor Vehicles, on a monthly
24 basis, to the General Inspection Trust Fund of the Department
25 of Agriculture and Consumer Services. These funds shall be
26 used for shellfish and aquaculture law enforcement and quality
28
27 control programs.
Section 9. Section 342.07, Florida Statutes, is
29 created to read:
30
31
12
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are additions.
F10rida Senate - 2005
578-957A-05
(PROPOSED COMMITTEE BILL)
SPB 7040
1
2 'I t"~
3
4
5
6 ,c; -:-
7
8
9
10
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11
12 "
13
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are additions.
Florida Senate - 2005
578-957A-05
(PROPOSED COMMITTEE BILL)
SPB 7040
1
2
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Page 18 of28
3
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4
5
Section 10. Sections 197.304, 197.3041, 197.3042,
6 197.3043, 197.3044, 197.3045, 197.3046, and 197.3047, Florida
7 Statutes, are created to read:
8
9 ',<0 r k.:;
r'. Y'(" ~", .!..;~ -'r+ ~
10
11
12
13
14 s.J~J.5~.s~ i,-} (~l~ .0 (~ ~~2.2 v E; r {~ d b V. a. t. (;[ x c (~ "C t ~L f i ~~; ~~~~!~5:;'; ~~: c .~~~~_~""u n d (~ :t: -c:: n 1. S
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19 i~~,.0rd(~r~_ t (J a tK.irrna t i :~:91 v dc.rno.ris -;-~..:cat>::~ CCInr>.l. J_ anc:e \~Ji t h t.t}(~
20
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Section 11. This act shall take effect July 1, 2005.
10
11 *****************************************
12 SENATE SUMMARY
13 Defines the term "recreational and corrunercial working
waterfronts" for purposes of land use planning and a
14 newly created tax and assessment deferral. Requires that
the land use plan element of a comprehensive plan for a
15 coastal county and the shoreline use component of a
coastal management element include criteria to encourage
16 the preservation of recreational and corrunercial working
waterfronts. Creates the Waterfronts Florida Program
17 within the Department of Community Affairs. Requires that
the Department of Environmental Protection, in
18 coordination with the Fish and Wildlife Conservation
Commission, study the use of state parks for recreational
19 boating and report to the Governor and the Legislature.
Increases vessel registration fees for the purpose of
20 funding boating grant programs. Authorizes a property
owner to claim a tax deferral for ad valorem taxes and
21 non-ad valorem assessments covered by a tax certificate
and levied on recreational and commercial working
22 waterfronts. Provides procedures for administering the
deferral of taxes and assessments. (See bill for
23 details. )
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Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be
consulted for official purposes. Copyright ~ 2000-2004 State of Florida.
http://199.44.254.194/cgi-binlview--page.pl?File=sb7040pb.html&Directory=session/2005/... 411/2005
County of Monroe
Growth Management Division
2798 Overseas Highway
Suite 410
Marathon, Florida 33050
Voice; 305.289. 2500
FAX; 305.289. 2536
Board of County Commissioners
Mayor Dixie Spehar, District 1
Mayor Pro Tern Charles "Sonny" McCoy, District 3
George Neugent, District 2
David Rice, District 4
Murray E. Nelson, District 5
MEMORANDUM
TO:
Board of County Commissioners
FROM:
Timothy 1. McGarry, Al~W
Director of Growth Mapg7~t
. I
Apnl 6, 2005
DATE:
SUBJECT:
Public Hearing on Comprehensive Package of Amendments
to the Comprehensive Plan and Land Development Regulations
for Implementation of Goal 105 - Tier System
INTRODUCTION
Overview
At its March 17, 2005, public hearing and workshop, the Board agreed that each individual
Commissioner would send comments and suggestions on the Tier System to the Growth
Management Division for review and analysis. Based on these comments and suggestions and
Board and staff dialogue at the March public hearing, the staff was directed to prepare
recommended options for further revisions to the proposed Tier System for consideration by the
Board at its April 20, 2005, public hearing.
Purpose
The purpose of this memorandum is to provide a framework for conducting the public hearing(s)
on the proposed ordinances by providing specific recommendations and options for further
revisions to the draft ordinances in a structured manner that will facilitate the Board's decision
making on this complex set of ordinances. As addenda to this memorandum, the staffs responses
to Commissioner's comments and suggestions and a staff evaluation of Mr. Ed Swift's requested
changes to the Tier System are present in Attachment A and B respectively.
Page 1 of 12
Public Hearing Procedures and Outcome
Similar to the March public hearing, the staff is requesting that all seven ordinances, including the
two transmittal resolutions be heard concurrently. However, the staff is requesting that the public
be allowed to speak before the staff presentation to the Board.
The staff will then proceed to go over each set ofrecommendations and options with the Board. It
is the staffs intention for the Board to make a decision on each of these remaining policy issues at
the April 17, 2005, public hearing. Based on the Board's direction, the staff will make necessary
changes to the draft ordinances amending the Comprehensive Plan and Land Development
Regulations. The staff intends to come back to the Board at a May 18, 2005, public hearing with
the final draft ordinances.
At the May public hearing, the Board will be asked to give its approval of the two resolutions for
transmittal of the two ordinances amending the Comprehensive Plan to DCA for review and
comment. None of the ordinances amending either the Comprehensive Plan or the Land
Development Regulations, including the Tier Overlay District Map, will be adopted until after
DCA has reviewed and commented upon the draft amendments to the Comprehensive Plan.
TIER SYSTEM
RECOMMENDATIONS, OPTIONS AND DECISIONS
This section has been structured to facilitate the key decisions that the Board has to make on the
remaining outstanding issues regarding the finalization of the proposed amendments to the
Comprehensive Plan and Land Development Regulations. To that end, the staff has grouped the
key decisions needed to be made by issue area based on the Board's discussion at the March 17
meeting and written comments provided to the Growth Management Division subsequent to that
meeting. Additionally, the staff has added two new issues with recommendations that have come
to the staff's attention since the March meeting.
Not included in this memorandum are any issues or provisions in the ordinances on which the
Board has not voiced disagreement, such as the proposed limitation on the number of
administrative relief awards. However, should any Board member believe that further discussion is
necessary, the Commissioner needs to bring the issue to the Board's attention at the April meeting.
Issues from March Meetin2
Increasing Federal and State Legal and Financial Involvement
Background: At the March 17, 2005, public hearing, the Board raised concerns about the
mandates being placed on the County by the Federal and State governments without
sufficient funding. More importantly, the Board voiced its unanimous concern with the
general unwillingness of the Federal and State government to fully participate in the legal
defense in the "taking claims" and sharing in the cost of this defense resulting from the
Page 2 of 12
County implementing these mandates. The Board directed staff to prepare an amendment to
the Comprehensive Plan that memorializes the Board's position on this significant issue.
Proposed Revision: Amend the Comprehensive Plan by creating Policy 6 that states the
policy of Monroe County to use its full powers and resources through its Federal and State
representatives and courts of competent jurisdiction to bring the Federal and State
governments in as a "third party" and full participant in any litigation arising from County
actions to implement the mandates of the Florida Keys Carrying Capacity as set forth by the
Florida Administration Commission in this Comprehensive Plan and Federal Endangered
Species Act.
Staff Recommendation: The staffrecommends approval ofthe proposed revision.
Board Decision:
Tier I Points
Background: At the March 17, 2005, public hearing, the Growth Management Division's
Special Legal Counsel indicated his concerns about the point differential between Tier I and
III properties. He stated that the point differential of 30 points may be too excessive as
applicants could claim that without significant investment it would be fruitless to enter into
ROGO, which they may argue is a de facto "taking". The current ROGO scoring system
where applicants can receive significant negative points has given the County Special Legal
Counsel's concerns.
The issue in addressing points is directly related to balancing property rights with public
objectives for environmental and habitat protection. Therefore, any increase in points to
address property rights issues ("takings claims"), must be carefully weighed against the
ramifications for undermining the protection of environmentally sensitive habitat and
protected species and public policies to direct development to infill areas.
A directly related issue has to do with the Tier System's stated objectives in simplifying the
current regulatory system and making it more transparent for property owners. However, if
layer upon layer of scoring modifications are needed to be applied to correct problems with
the classification of properties into three tiers, the system becomes more complex and less
transparent.
Options:
1. Retain the exiting assignment of 0 points to Tier I under ROGa.
Pro- Retaining the existing assignment of "0" points makes it more difficult
for development in Tier I and ensures significant mitigation in the form of
land dedication. In addition, it addresses the issues of "buffers" and
"secondary impacts", which are not addressed in the current system, but
Page 3 of 12
need to be addressed as recommended in the Florida Keys Carrying Capacity
Study. In many cases, properties that currently receive a significant number
of negative points due to the presence of several protected species will be
more competitive, further reducing potential "takings claims".
Con- Although some Tier I properties may benefit from the new point
system, compared to the existing system, other properties which have less
existing upland native habitat and/or lack the presence of endangered species
would be more adversely affected. Concerns have been raised that retaining
the significant point differential may be considered a de facto "taking" for
these properties as they would make prohibitive to be developed.
2. Assign + 1 0 points to Tier I under ROGO
Pro- The increase in points assigned to Tier I would make it less difficult to
be awarded an allocation to receive a permit for development, which reduces
the County's liability to potential takings claims; however, it will still
require the property owner to dedicate at least 5 lots to be on par with Tier
ill properties. [Note: For Big Pine Key and No Name Key only a 20 point
differential exists between Tier I and ill designations.}
Con- The application of + 10 points increases the likelihood for development
in Tier I of many properties that are now heavily penalized by the presence
of protected species and upland native habitat. This impact on the proposed
system makes it a less satisfactory than the currently proposed assignment of
"0" points in meeting the minimization and mitigation (dedication of lots)
requirements of the Tier System. A question that is still difficult to answer
is whether or not the need to dedicate five lots to be on par with Tier III
properties (estimated to cost at least $150,000) is cost prohibitive,
excluding many property owners from getting a permit.
3. Assign +10 points to Tier I under ROGO, but place a cap on the number of
allocations that can be awarded in Tier I to 6 (3 in Upper Keys and 3 in
Lower Keys.
Pro- This option has the same advantages as those for Option 2, but the cap
placed on the number of allocations would more satisfactorily achieve the
minimization and mitigation requirements than Option 2. A similar cap
exists on the number of allocations in Tier I for Big Pine Key and No Name
Key.
Con- The disadvantages of this option are the same to those for Option 2,
but are further minimized by the caps placed on the number of allocation
awards in Tier 1.
Page 4 of 12
4. Assign -] 0 points to any application in Tier I under ROGO that proposes
development within a habitat of a protected species (i.e.,
endangered/threatened and State protected)as depicted on the County's
Endangered and Threatened Plant and Animal Maps and Florida Keys
Carrying Capacity Maps.
Pro- The assignment of -10 points to any application proposing
development within a habitat of a protected species addresses the problem
that results from increasing the points for all Tier I properties to + 10. Under
the current system, these properties are heavily penalized as negative points
are cumulatively assigned based on the number of endangered/threatened
species and quality of native upland habitat. Even with the assigning of + 10
points these properties will still be more competitive than under the current
ROGO system; however these negative points ensure that such properties
will provide more mitigation than required for other Tier I properties that
lack these indicators. It will further erode the case for making claims that
may be made under the current ROGO system, which assigns a significant
number of negative points to these properties. It should be further noted that
the presence of protected species is a very good surrogate for the presence of
the native habitat that needs to be protected.
Con- This option does not penalize properties enough and makes it still too
easy to obtain a permit.
Staff Recommendation: The staff recommends a combination of Option 2 and Option 4:
. assign +10 points to applications in Tier I; and,
. assign -10 points to any application in Tier I that proposes development
within a habitat of a protected species.
Board Decision:
Tier II Points
Background: At the March 1 ih public hearing, a significant amount of discussion
concerned the scoring of Tier II properties in ROGO. The consensus of the Board was that
the proposed scoring differential of 10 points was too severe; therefore, retaining this point
differential is not an option under consideration. The scoring for Tier II needs to
appropriately support the objectives and policies of Comprehensive Plan Goal 105 and
more equitably and fairly reflect the real environmental and policy differences between Tier
II and III designated properties.
Page 5 of 12
Options:
1. Assign +30 points to both Tier I and II under ROGO
Pro- The elimination of the point difference between the two designations
will reduce much of the opposition to the Tier II designations.
Con- The elimination of the point differential would be inconsistent with
Goal 105, as it would further encourage development outside of infill
subdivisions. In addition it would benefit many properties that would receive
negative points under the current system due to habitat; therefore, it does not
appropriately support the mitigation and minimization requirements of the
Tier system. It will require revisions to the current HEI and its application
in at least Tier II areas. This option is not likely to be supported by DCA.
2. Assign +20 points to Tier II under ROGO, but expand vesting by awarding
current applications in Tier II that have received a +1 point for habitat +30
points. [Note this option may be combined with other ones.]
Pro- This option provides an equitable solution for those property owners
that made their investment decisions based on the existing system rules.
Con- The option doesn't comprehensively address the policy issue
concerning the point differential between Tier II and III designated
properties that have been cited by Commissioners and staff.
3. Assign +30 points Tier II under ROGO, but apply a -5 points to those Tier
II applications that proposed to clear 2,500 square feet or more of upland
native habitat.
Pro- This option addresses the concerns raised about encouraging
development in upland native habitat inconsistent with the mitigation and
minimization requirements of the Tier System that has led to appeals of
permits by DCA and a Notice of Violation. [The assignment of -5 points is
the deduction made under the current regulations for a moderate quality
habitat.]
Con- The downside to this option is that it treats the majority of Tier II lots
similar to Tier III which is inconsistent with Comprehensive Plan Goal 105
in that it encourages development outside of infill (Tier III) subdivisions.
4. Assign +26 points to Tier II under ROGa..
Pro- This option may more appropriately and equitably recognizes the
differences between Tier II and Tier III properties than the current point
Page 6 of 12
differential, but at the same time makes Tier III properties more desirable for
development, consistent with Comprehensive Plan Goal 105.
Con- The only downside is that all Tier II properties are treated equally
even those with upland native habitat that must be cleared, which works
against mitigation and minimization requirements of the Tier System.
5. Assign +26 points to Tier II under ROGOs, but apply -5 points to
applications proposing to clear 2,500 square feet or more of upland native
habitat. [Revision of option presented to Board at the March 1 ih public
hearing.)
Pro- This option improves on Option 4 by not treating all Tier II properties
equally in that only properties with upland native habitat that propose
significant clearing are penalized, which is more consistent with the
mitigation and minimization requirements of the Tier System than Option 2.
Con- This option makes administration of the Tier System slightly more
complicated. It automatically assumes that a "moderate quality" upland
native habitat exists on any property requiring clearing of more than 2,500
square feet, which may not a fair and equitable for all situations.
Staff Recommendation: The staff recommends Option 5 as the preferred option: assign
+ 26 points to Tier II, but apply a -5 points to applications proposing to clear 2,500 square
feet or more of upland native habitat. As its second choice, the staff recommends Option
4: assign +26 points to Tier II. [Note: After further analysis conducted since the March
public hearing, the staff is no longer in a position to support Option 3, as it assigns the
same ROGO point value to both Tier II and Tier IlL]
Board Decision:
Lottery
Background: At the March 1 ih meeting, the staff received no clear direction from the
Board concerning the lottery, although subsequently it did receive written comments from
one Commissioner opposing the lottery. The County Special Legal Counsel did point out
that a lottery may serve a valuable legal purpose in defense of "takings claims" by
providing an additional avenue for applicants to obtain a permit. The proposed
amendments to the Comprehensive Plan would authorize, but not require the Board to
establish both a lottery and competitive system.
As proposed, the lottery would only be available for market rate applicants and not for
allocations in Big Pine Key and No Name Key. To be eligible, the application must meet
the minimum number of points assigned to Tier III properties (i.e., +30); and must be the
only application entered into ROGO by an individual, entity or organization. Under the
Page 7 of 12
proposed system, a mlmmum of 20 percent of the market rate allocations would be
available; this share can be annually adjusted up or down by the Board.
The decisions that the Commission must make regarding the lottery include 1) whether or
not to make a lottery available; 2) eligibility and conditions for Tier I properties in the
lottery system; 3) and limits and share of the market rate allocations to be made available
to the lottery system.
Retain the lottery as proposed.
Pro- The lottery alternative provides an avenue for households that lack the
financial resources to compete in the market system, but are not eligible for an
affordable housing allocation or not in a position to accept the conditions placed on
affordable housing allocations. The system is not intended for developers or
individuals who need certainty in the planning of their future residences. It provides
an additional legal defense in countering "takings claims".
Con- A lottery creates some uncertainty in the development process for
individuals, where certainty is desired. It creates additional administrative burden
and cost by requiring the County to maintain two separate allocation systems. The
lottery may be subject to abuse in that developers and contractors may employ
individuals to "front" for their applications.
Staff Recommendation: The staff recommends that the Board support a dual lottery and
competitive system.
Board Decision:
Keep Tier I properties eligible for lottery as proposed.
Pro- The eligibility for Tier I applications in the lottery system provides an
additional protection for the County against "takings claims", as applicants have the
opportunity to secure an allocation award with less points than under the
competitive system, if the cost to enter the lottery system are not cost prohibitive,
which is an issue -see cons. (The staff believes it may well take at least two
additional lot dedications above the +30 point threshold for applications to be
successful in the competitive system.)
Con- Being eligible for the lottery may make property owners less likely to seel
their properties to the public increasing the potential development of
environmentally sensitive lands and helping to increase the acquisition costs of
these properties. If the applicant is required to meet a minimum number of points, it
is questionable that applicants with the necessary financial resources would really
make use of the lottery option rather than the competitive system based on the
marginal difference in costs involved and relatively small impact on the overall
development costs of the property. More importantly, even if the point differential
Page 8 of 12
between Tier I and ill were reduced as proposed under the Tier I issue, applicants
with less financial resources may make the claim that the requirement to add 20
additional points (i.e., dedicating at least 5 lots to the County) to be eligible for the
lottery at additional cost of $150,000 is prohibitive and effectively excludes them
from developing their property. Of course whether or not these costs are actually
prohibitive in terms of the high price Keys market can not be known until tested in
court.
To address this issue, if the minimum point threshold were lowered to allow less
costly entry into the lottery system, it may open Tier I to more development, reduce
the mitigation requirements for these properties (in form of lot dedications) and
increase the numbers of property owners unwilling to dedicate or sell their property
to the State or County.
Staff Recommendation: The staff recommends that Tier I properties be made eligible for
entry into the lottery with the following conditions:
. The application shall be a legally platted URM/IS lot that is within 300 feet
of FKAA water service and abuts a paved County or State road;
. The applicant must meet a minimum threshold of +22 points;
. The application shall not propose development in a protected species habitat
(endangered/threatened and State protected species) depicted on the
Threatened and Endangered Plant and Animal Species Maps and Florida
Keys Carrying Capacity Study; and,
. As a condition of its issuance, any permit authorized under a lottery
allocation award in Tier I, shall be required to meet the mitigation and
minimization recommendations identified by the U.S. Fish and Wildlife
Service in its technical coordination review.
Board Decision:
Retain the fJrovlslOns establishing the number and limits on lottery allocations as
{JrofJosed in the draft ordinances.
Pro- The proposed initial share of 20 percent (24 allocations) per year for the
lottery system is considered a reasonable, but conservative first step in establishing
the system. The system provides flexibility in that the Board may annually raise or
lower the share of permits to the lottery system, but any increase is limited to 50
percent of the previous year's total and any decrease can be no lower than 20
percent of the total market rate allocations. Additionally, authorizing language in
the Comprehensive Plan does not require the County to establish a lottery;
therefore, if the lottery proves to unsatisfactory, the Board can amend its Land
Page 9 of 12
Development regulations to eliminate its prOVISIOns without amending the
Comprehensive Plan.
Con- The language provides no maximum cap on the number of lottery
allocations that may be eventually made available and for potentially significant
increases in the annual number of allocations, which may create further uncertainty
in the construction/development community.
Staff Recommendation: The staff recommends that a maximum cap of 50% be placed on
the number of allocations under a lottery system and the number of allocations in the
system can only be increased by 20% annually rather than 50%.
Board Decision:
Payment for Points under ROGOINROGO
Retain the provision for applicants in ROGOINROGO be purchase ROGO points as
proposed.
Background: The proposed ordinances allow for applicants to purchase up to 3 ROGO
points. The fees collected will be placed into a fund for purchase of conservation lands.
The basis of the cost for each ROGO point is to be set annually by the Board based on the
average assessed value of all privately-owned vacant ISIURM lots divided by four (number
of points awarded for dedicated ROGO lot).
Pro- The ability to purchase ROGO points is intended to help dampen the rising
market value of eligible lots for dedication under ROGO caused by the numbers of
lots being dedicated and speculation by real estate investors. As more lots are
acquired by the State and County, fewer lots will be available further increasing the
market value of these lots. This provision recognizes that even with the number of
additional lots eligible for dedication for 1 point, it may be difficult for many
individuals to obtain those extra points to make their application competitive
enough to receive an allocation award. Additionally, this option will provide the
County with an another funding source for its land acquisition efforts.
Con- The most significant disadvantage of the payment for points provision is that
it requires the County through the Land Authority to expend its resources on
identifying and purchasing. With land dedication for points, the private market does
this reducing the acquisition costs for the County.
Staff Recommendation: The staff recommends that the payment for points provision be
retained.
Board Decision:
Page 10 of12
New Issues
Existing Non-residential Uses and Tier System
Background: In its further review of the Tier System, the staff recognized that many
existing non-residential uses were located in Tier I or II. Unlike residential properties, in
order to expand existing non-residential development must go through NROGO to obtain
authorization for any additional floor area, which may place an unintended hardship on
existing properties. A similar exception is made for existing non-residential development
on Big Pine Key.
Proposed Revision: Revise the language in NROGO ordinance to permit all eXlstmg
lawfully established non-residential uses to be assigned +20 points under NROGO; if the
existing use is located within a Tier I area, the assignment of the +20 points will be
contingent upon no further clearing of upland native habitat and no addition and/or
expansion of the existing lot or parcel upon the use is situated.
Staff Recommendation: The staff recommends approval of the proposed revision.
Board Decision:
Additional Points for Market Rate Housing as Part of an Affordable Housing Project
Increase the number points awarded in ROGO from +3 to +5 or +6 for market rate units
that are part of an affordable housing proiect.
Background: One of requested revisions to the Tier System that Mr. Ed Swift's presented
in his letter (Attachment B) to the Board is to increase under ROGO the number of points
that can be awarded to market rate housing as part of an affordable housing project. He is
requesting that the number of points be increased from +3 to +5 or +6. Under the County's
regulations in projects of five units or more, 20 percent ofthe units may be market rate.
In reviewing his request, the staff found that the proposed amendments to ROGO calls for
+3 points, which is inconsistent with existing regulations in Section 9.5-266. Retaining the
+5 points bonus is preferable to only awarding +3 points as the higher point value (higher
than a dedicate ROGO lot) more clearly reflects the priorities of the Board to enact
measures to promote affordable housing.
Staff Recommendation: The staff recommends revising the award from +3 points to +5
points for market rate units that are part of an affordable housing project.
Board Decision:
CONCLUSION
Page 11 of 12
Once the Board has provided direction to the staff on revisions to the proposed ordinances, the
staff will prepare revised ordinances to be presented to the Board at the May 18, 2005, public
hearing. The County's Special Legal Counsel will be asked to provide a legal memorandum on the
defensibility of the final draft ordinances, which will be available prior to the May meeting. At the
May meeting, if the Board is amenable, the staff will request that the two resolutions be approved
by the Board to transmit the draft ordinances amending the Comprehensive Plan to DCA for
review and comment.
Attachment A- Board Comments and Suggestions
Attachment B- Staff Evaluation ofMr. Ed Swift's
Requested Changes to the Tier System
Page 12 of 12
ATTACHMENT A
BOARD COMMENTS AND SUGGESTIONS
Written and oral comments and suggestions concerning the proposed ordinances and Tier
System were received from three Commissioners. The comments and suggestions and
staff response to each are grouped by issue or policy area.
Lack of Adequate Public Funding for Land Acquisition
Comment:
The Tier I designation makes such lands unbuildable or totally
unusable by the property owners. The U.S Constitution requires
that the County compensate these property owners for the loss of
their properties. Therefore, unless the County has sufficient funds
to purchase these properties, the Tier I designation should only be
for those lands with highest quality upland native habitat for which
the County has the funds to purchase.
Response:
The Tier I designation does not make these lands unbuildable or
totally unusable. Existing developed properties are not affected
except if they require an allocation award under ROGO or
NROGO. Many of these properties have value for
ROGOINROGO dedication purposes or sale ofTDRs.
Most of the proposed Tier I designated parcels already have little
or no development potential under the present regulations and the
Tier System does not make the overwhelming majority of these
properties less competitive under the proposed system. Many of
these properties contain wetlands and mangroves that were
unbuildable prior to the enactment of the 1986 Land Development
Regulations. Furthermore, nothing precludes these property
owners from competing in ROGO, recognizing that they will most
likely have to dedicate at least 8 lots to the County to be
competitive.
As long as these property owners have some recourse for obtaining
development approval, the imposition of the Tier designation does
not automatically deprive property owners of their rights or give
them a right to a takings claim. Property owners must try to
exercise their property rights before their case is considered "ripe"
for a takings claim.
Under the proposed Tier System and ROGO, if the property
owners are not successful after four years in ROGO they may seek
administrative relief. The Board has the discretion to either offer
to purchase their property or give them a permit and therefore, if
sufficient funding is not available to purchase lands, the Board has
the option to issue a permit.
Page 1 of8
ATTACHMENT A
The boundaries of the Forever Florida Program include almost
every Tier I designated parcel, except those properties which have
asked to be removed from the program. Although the assessed
value of privately-owned vacant lands within Tier I is $42 million
(Property Tax Appraiser records) less than the $93 million made
available under the Forever Florida program, the actual purchase of
the price of properties will be higher, especially the longer it takes
to acquire these properties for public ownership. Therefore, the
County must aggressively move forward to secure more funding
for land acquisition as stated in the staff s December memorandum
to the Board.
However, the actual purchase prices of these properties can not be
known until they are purchased. Nothing requires a property owner
to sell to the State or County. If the property owner is unwilling to
sell or is unwilling to sell the property at its fair market value, then
the value of the property will be established through the court
system after the property owner has exhausted his administrative
remedies to receive development approval for his property.
Therefore, it is the staffs opinion that the County does not need to
have sufficient funds up front to purchase all designated properties,
for the following reasons:
(1) development is not automatically prohibited in Tier I
and properties in Tier I are not made unusable by the
designation;
(2) property owners generally must try to exercise their
development rights and exhaust administrative
remedies before they can support a valid "takings"
claim, which will spread out over many years the
number of properties that the County will have to
purchase due to such claims;
(3) many property owners will not exercise their property
rights for many reasons, which will allow the County
to purchase or acquire these properties over time; and,
(4) the administrative relief system allows the issuance of
a permit, which provides an escape mechanism should
the County have insufficient funds to purchase
property due to a potential "takings claim".
Page2of8
ATTACHMENT A
It is essential that all properties eligible for Tier I designation be so
designated so development is discouraged from these
environmentally sensitive areas to preclude further fragmentation
of habitat and direct/secondary impacts on endangered and
threatened species. It is also necessary to clearly communicate to
property owners the County's policies concerning the development
of their properties in these environmentally sensitive areas and the
need for public acquisition to preserve and restore these lands.
Encouraging scattered development on these lands that need
preservation will only further drive up the cost of acquisition on
the remaining lands and generate false expectations for property
owners.
Tier Designation Issues
Comment:
Response:
The Tier I boundaries contain parcels that have few or no quality
native upland habitat. Some of these properties are scarified and
have little habitat value. These properties should not be included
in the Tier I boundaries.
The boundaries of Tier I are intended to include more than just
patches of high quality habitat. The criteria for Tier I designation
are specifically described under proposed Section 9.5-256 (b)(I)
with the primary result of designating all lands necessary to
implement the recommendations of the Florida Keys Carrying
Capacity regarding minimizing further fragmentation and
degradation of habitat and the restoration and enhancement of
habitat.
Therefore, even though a property may have or appear to have
little or no habitat or endangered and threatened species, they are
integral to the restoration and protection of wetlands and upland
native habitat. These lands are intended to be restored to allow for
regrowth and connection of isolated patches and provide buffer
areas for both habitat and protected species from developed areas.
All of this is essential to the long-term viability of native habitat
and wildlife in the Florida Keys.
To encourage development on these properties will not only
remove these opportunities, but result in further primary and
secondary impacts on existing habitat and protected species. A lot-
by-lot piecemeal approach to conservation and resource protection
that does not comprehensively address loss of habitat and the
cumulative impacts on the Florida Keys' endangered and
threatened species, which is the problem with the current system.
Page 3 of 8
Comment:
Response:
ATTACHMENT A
The following criteria should be included m establishing the
Tiers:
Tier I
· Contain Conservation and Natural Area (CNA) and
contiguous lands over two (2) acres;
· Dedicated paved roads, scarified lots and existing homes
shall be considered breaks in land parcels;
· Branches or limbs of existing trees over paved roads do not
constitute contiguous;
. Two (2) acre parcels or more and CNA lands;
· Lands are separated from Tier II and III areas by a paved
road.
Tier II
· Contain parcels of one (1) acre to 1.999 acres that are
contiguousc
· Subdivisions are less than 50% built out.
Tier III
. Subdivisions more than 50 % built out.
In responding to the suggested criteria, the staff believes that the
terms "parcel" and "contiguous lands" referred to in the comments
actually means the patch size of upland native habitat, rather than
to the real division of property.
The lands designated as CNA and Tier I are based on the same
criteria; therefore, the inclusion of CNA as part of the criteria only
further confuses the matter, as specific criteria were followed to
designated the boundaries ofthe CNA, which the Tier I boundaries
follow.
The Commissioner's proposed criteria for considering "breaks" in
habitat patch continuity by using the presence of paved roads and
the need for a paved road to be located between Tier I and Tier
II/Tier III properties will further reduce the boundaries of Tier I.
The reduction of these boundaries will lead to further habitat
degradation and fragmentation and adverse impacts on protected
species. The criteria in proposed Section 9.5-256(b) presents the
specific criteria upon which the CNA, and the Tier I boundaries
were drawn.
The initial boundaries for Tier I (aka CNA) was based on the
FMRl Maps for the Florida Keys. All habitat patches of four or
more acres in size and, freshwater and transitional wetlands were
Page 4 of8
Comment:
ATTACHMENT A
included in Tier 1. The endangered and threatened species maps
were reviewed and identified areas were added. Existing properties
zoned Conservation and Native Area, areas with little or no
development or public infrastructure, and lands designated by state
and federal agencies for conservation and natural resource
protection were also considered in the drafting the maps. In
addition, a undeveloped buffer, of up to 500 feet in width was
added where appropriate as called for in the Comprehensive Plan
and special studies between natural areas and developed areas to
reduce secondary impacts. This buffer was reduced where canals
or major roadways that served existing residences exist; properties
on the other side of these man-made barriers generally received a
Tier II designation.
Through site visits and review of the most recent aerial
photographs, vacant smaller upland habitat patches of less than
four acres that can be connected as well as vacant lands that can be
restored to connect these habitat patches were identified and
included. Where site visits or aerial photographs revealed new
development, this was taken into account, mostly in reducing the
Tier I boundaries and assigning another designation to these
properties.
The designation criteria used for Tier II and III are also clearly
spelled out in proposed Section 9.5-256(b). The proposed
subdivision build out threshold numbers for Tier II and III areas
presented by the Commissioner are consistent with this proposed
criteria.
The proposed changes in threshold patch size for designation
conflicts with the criteria used to originally establish the CNA,
now Tier I, and Tiers II and III. Except for a couple of isolated
patches of habitat almost every habitat patch of two acres of more
is contained in proposed Tier I. Tier II contains all remaining
habitat patches down to one-half acre or smaller in size. To reduce
the threshold to allow one-acre upland habitat patches in Tier III,
as suggested, would conflict with the recommendations of the
Florida Keys Carrying Capacity Study. These patches should be
protected through minimization and mitigation measures required
for Tier II properties.
All subdivisions should be surveyed by an independent agency to
show existing houses, scarified lots, and contiguous parcels
("patches?") over one (1) acre in Tier II and two (2) acres in Tier
1.
Page 5 of8
Response:
A IT ACHMENT A
To ensure public confidence and acceptance of land use data used
to prepare the Tier Overlay District Maps, the staff believes it
would be worthwhile to contract with another organization or
agency to survey and gather information on buildings and land
uses that can be entered into the County's Geographic Information
System. This project will be completed prior to the final Tier
Overlay District Map being considered by the Board.
ROGO Scoring for Tier II Designated Properties
Comment:
Response:
Prefers Option #2 (26 points for Tier II and 30 points for Tier III
as an equitable spread; does not favor Option # 4, which
grandfathers Tier II applicants in the existing system that have a
+ 1 habitat score - increasing Tier II to 26 points from 20 points
addresses fairness issue; and, finds Option #3 acceptable (30
points for either Tier II or III. but deducts 4 points for any
application in Tier II clearing more than 1,000 square feet of
habitat), but it does not help accomplish planning goal of
encouraging development on infilllots.
No response is required.
Donation of ROGO Lots
Comment:
Response:
Comment:
Response:
Donated lots in Tier II that are not part of one (1) acre or
contiguous parcel ("patch? 'J may be used for affordable housing.
The proposed ordinance already allows for Tier II and Tier III lots
dedicated under ROGO to be eligible for affordable housing
Affordable housing in Tier II is limited to clearing of no more than
5,000 square feet of upland native habitat or the clearing
requirements of proposed Section 9.5-347, whichever is greater.
Allow Tier 1, II, and III lots to be dedicated for ROGO points.
The proposed regulations allow for dedication of lots in all three
Tiers; except that in Tier III the lots are for affordable housing
only, as no significant upland habitat patches remain in these areas.
Payment for ROGOPoints
Comment:
Response:
Let the market determine the price of ROGO lots; the County
receives them for free for prese1iiation or affordable housing.
The staff is uncertain what this comment is intended to mean.
ROGO lots are sold and purchased on the free market. Even if the
Page6of8
Comment:
Response:
Comment:
Response:
ATTACHMENT A
Board opts to allow applicants to purchase up to three points, the
value of these points will be based on the average assessed value of
all vacant, privately-owned URM/IS lots according to the Property
Tax records. The Property Appraiser establishes the assessed
value of residential property based on comparable sales data.
Sixty-three (63) allocations will be available for market rate
permits; this will provide for a higher number donated ROGO lots
due to competition.
The number of market allocations that will be available will be
126. The 63 number is the minimum number of allocations, if 50
percent are required to be assigned to awards granted under
administrative relief.
The staff is unsure whether this comment is merely a statement or
an indirect way of stating opposition to the purchase of points.
However, as the dedication of lots is the primary option under the
new ROGO system for applications to add points to be more
competitive, the number of lots dedicated for ROGO will increase,
particularly as the number of lots and parcels eligible for donation
will increase significantly.
Supports payment for points.
No response is required.
Limitation on Administrative Relief Allocation Awards
Comment:
Response:
Lottery Option
Comment:
Response:
Not more than 50% of ROGO allocations shall be used for
administrative relief
No response is required.
Does not support including Tier [lots in the lottery unless there is
an over-riding reason to include them in the lottery; if Tier [ is
included the number of awards should be limited in anyone year;
concerned that the inclusion of Tier I would encourage more
applications in Tier 1, decreasing the number of property owners
willing to sell in Tier 1.
At the March 16th public hearing, the Growth Management
Division's Special Legal Counsel favored including Tier I lots in
the lottery, which is reflected in his basic concern about the large
Page7of8
Comment:
Response:
Comment:
Response:
ATTACHMENT A
point differential between Tier I and Tiers IIIIlI. In his opinion,
the lottery would provide a possibility for a Tier I application to
obtain a permit and help temper arguments concerning the large
point differential between Tier I and Tier WIll making such
app licati on.
In any situation, the number of such permits that can be awarded
should be limited and mitigation required, such as requiring the
application to meet the minimum point threshold. The concern
about decreasing the number of property willing to sell in Tier I is
a valid concern, especially if entry into the lottery is too easy and
no maximum limits are placed on the number of awards.
Is the initial 20% allocation for the number of market allocations
to be available in the lottery too much or too little?
The staff deliberately set the lottery aside to only 20 percent to
ensure that the majority of market rate allocations remain in the
competitive system resulting in more land dedications to the
County. This allocation can be adjusted annually by the BOCC by
increasing or decreasing the number by 50%, except that the
minimum may never go below 20%. No maximum limit was set
Does not support lottery system, as people need to be able to plan
on when they can build.
One of the cons against the lottery is that it does not provide
certainty to applicants, which is why both a competitive and lottery
system are proposed in the draft Tier System package.
Page 8 of8
ATTACHMENT B
MEMORANDUM
TO:
Board of County Commissioners
FROM:
Timothy J. McGarry, AICP /J1;1
Director of Growth ManagemetrV I f
DATE:
April 1, 2005
SUBJECT:
Staff Evaluation of Proposed Changes to
Tier System Requested by Mr. Ed Swift
At the March 16, 2005, Commission meeting, the Board directed staff to evaluate the attached
letter from Mr. Ed Swift requesting specific changes to the proposed Tier System. This
memorandum provides staff analysis and recommendations on each proposal.
I. Proposal: Give greater density bonuses for building affordable homes on commercially
zoned property.
Analysis: The existing density bonus for affordable housing in the Mixed Use (MU)
district is an effective maximum gross density of 14.4 units per acre (18 units per
maximum net density) and in the Suburban Commercial (SC) district is an effective
maximum gross density of 12 units per acre (15 units per maximum net density). Changes
in this density would require amendments to the Comprehensive Plan and Land
Development Regulations.
Any change in density for affordable housing in the commercial districts needs to be
carefully reviewed as it has implications for increased off-site impacts and raises potential
for community opposition to needed housing. Another option would be rezoning of
specific properties to allow for higher density.
This proposal calling for an increase in the density bonus to provide greater incentives for
construction of affordable housing should to be considered as part of the comprehensive
review of the County's affordable housing policies, regulations and programs that will be
started shortly in conjunction with the imposition of the Interim Development Ordinance
on conversion and redevelopment of mobile home parks.
Recommendation: No action should be taken at this time, but the increased density bonus
issue should be thoroughly investigated as part of the comprehensive review of the
County's affordable housing policies, regulations and programs.
II. Proposal: Do not apply the 20 percent open space requirement to affordable housing.
Analysis: The Comprehensive Plan and Land Development Regulations require that all
development has at least 20 percent open space, which includes setbacks and required
Page 1 of 4
ATTACHMENT B
landscaping buffers. The argument presented by Mr. Swift is that applying this standard to
affordable housing, the same as market rate housing, reduces the incentives (i.e., density)
for developers to build this type of housing.
The elimination of the open space requirement would make such affordable housing
incompatible with other development in the county. Without open space limits, every inch
of property could be covered by impervious surfaces and structures except for areas
required to be left open for setbacks or required landscaped buffers. Therefore, such an
exemption would not further good land use planning principles and would only work to
increase potential neighborhood opposition to these projects.
Rather than decreasing open space requirements, the more appropriate option would be to
increase the density bonus for affordable housing, as requested in I above. This option
would meet Mr. Swift's concerns, but retain the benefits that accrue to the community and
tenants/owners from having open space requirements in the County's regulations.
Recommendation: The proposal to exempt affordable housing projects from open space
requirements should not be pursued any further, but an increase in the density bonus should
be considered as part of the comprehensive review of the County's affordable housing
policies, regulations, and programs.
III. (a) Proposal: Increase the number of ROGO points from 3 to 5 or 6 awarded to market rate
housing as part of an affordable housing project.
Analysis: The existing regulations allow for 20 percent of an employee and affordable
housing project to be market rate. Market rate units in these projects receive the density
bonus allowed for affordable housing, are not required to apply TDRs, and receive +5
points under ROGO. These market rate units are deed restricted to households earning
70% of their income from Monroe County.
The proposed amendments call for only +3 points, which is inconsistent with existing
regulations in Section 9.5-266. This inconsistency was an oversight in the drafting of the
proposed amendments. Retaining the +5 points bonus is preferable to only awarding +3
points as the higher point value more clearly defines the priorities placed by the County in
promoting affordable housing.
Recommendation: The proposed ordinances amending the Comprehensive Plan and
Land Development Regulations should be revised to award +5 points to market rate units in
affordable housing projects.
III (b) Proposal: Award +1 ROGO point for each affordable unit constructed, which the
developer may apply to other off-site projects.'
Analysis: It is unclear whether these points would be awarded for affordable housing
constructed in a mixed market rate-affordable housing project and/or a solely affordable
housing project. This concept may have some merit, but needs further investigation during
Page 2 of 4
ATTACHMENT B
the preparation of the comprehensive review of the County's affordable housing policies,
regulations, and programs.
Recommendation: No action should be taken at this time, but the proposal awarding
property owner or developer one ROGO point for each affordable housing unit constructed
should be examined as part of the comprehensive review of the County's affordable
housing policies, regulations and programs.
IV. Proposal: Provide direct notice of the Tier System to all property owners of proposed
Tier I and II designated properties by certified mail or tax bills.
Analysis: The staff believes that the use of certified mail would be cost prohibitive with
over 6,500 separate vacant privately-owned parcels, excluding Big Pine Key and No Name
Key. The TRlM notices will not be sent until this summer, therefore, sending a notice with
the tax bills is not a viable option, unless the Board wants to further delay implementation
of the system into next year.
The public is being made aware of proposed Tier System and Tier maps through:
newspaper ads; County website; press releases; and presentations before public interest and
citizen groups. Planners in both the Marathon and Plantation offices have been specifically
assigned to answer citizen's questions on the Tier System. In addition, any property owner
may access the County's website to find out to which proposed Tier their property has been
assigned or they may go to any County library or the Growth Management offices in
Marathon or Plantation Key.
The County has held four Planning Commission public hearings and will have had held at
least five public hearings before the Board of County Commissioners on the Tier System
before any final action is taken this summer. The path being followed by the staff for
public notification is far more than required under either Chapters 125 and 163, Florida
Statutes, or the County's own regulations and provides ample opportunity for interested
property owners to learn about the system or provide input in the development of the Tier
System.
The staff is not in agreement with the assertion made by Mr. Swift that the Tier System is a
major across the board change in land use. Other than new clearing limits, the Tier System
only directly affects development requiring an allocation award under ROGO or NROGO.
It does not change or modify the list of permitted uses in any zoning district.
The staff further disagrees that the Tier System will result in a "dramatic change in the
value of land", as the real development value of the overwhelming number of properties
will not change in the long run due to the system. The proposed Tier System is far more
transparent to both sellers and buyers in the real estate market, as it provides fuller
disclosure to property owners on the development potential of their property than under the
current system.
Page 3 of 4
ATTACHMENT B
As discussed in a previous memorandum to the Board, the potential of most properties to
successfully compete in ROGO or NROGO will not change under the new system. The
preponderance of properties proposed for a Tier I designation are not competitive under the
current system and will not be competitive under the proposed system.
It should be further noted that almost every owner of vacant property in Tier I has been
contacted by the State concerning inclusion of their property in the Florida Forever
boundaries for future public acquisition for conservation purposes. This action alone
should have put most property owners on notice about the development expectations
regarding their property.
The competitiveness of Tier II properties under the proposed system as compared to the
existing one will greatly hinge upon the final determination by the Board of the point
differential between Tier III and Tier II; however, it should be noted that even under the
current system 40% of applications in proposed Tier II areas already receive negative
points for environmental impacts. This number would even be higher if existing vegetation
conditions were taken into consideration.
Finally, if the unusual and extraordinary effort were made to send individual notices to all
property owners, it may only raise undue concerns from property owners about the
ramifications of the system on their property. Unduly raising the level of concern over an
issue, that materially affects only a small percentage of property owners, may only result in
increasing the anxiety and fears of property owners and overwhelm the staff with numerous
questions.
Recommendation: This proposal on requiring individual notices to be sent to property
owners in proposed Tier I and II areas should not be pursued any further as the County is
providing sufficient access and opportunities for interested property owners to become
informed about the Tier System.
Attachment
Page 4 of 4
March 17,2005
Dear Commissioners:
Below is a summary of my request for changes in the Tier System propo$al noW before
you:
I. If landowners, can be enticed or incentivized to build affordable housing on
commercial properties that would result in the elimination of potential
commercial growth while helping to solve our housing problem.
Request: Give greater density bonuses for building affordable homes on
commercially zoned property.
II. Because affordable housing creates, by its nature, smaller unit sizes the need to
set aside 20% of the land for open space is not necessary. Applying the same
standard to affordable projects sites as we do to bigger market rate sites is not
realistic and unnecessarily reduces the number of units we can build on any given
site. Land is precious and we need to use it conservatively.
Request: In determining buildable area on M.D. or S.c. or any other commercial
land used for affordable housing allow 100% rather than the 80% now used to
determine the net buildable area.
III. The allowing of mixed income affordable housing developments of 80%
affordable and 20% deed restricted market rate is currently in our code. This was
included as a way to encourage owners of very valuable property to build
affordable housing however the incentive now being requested by the planning
board of 3 ROGO points for these deed restricted market rate units is not
sufficient to accomplish the goal and entice the owners of this land to use it for
affordable projects.
Request: Please consider 5 or 6 ROGO points as the incentive for the 20% deed
restricted market rate units now allowed in affordable mixed income properties.
Might I also suggest that one ROGO point be awarded fro each affordable unit
built thus a developer could amass ROGO points toward off-site permitting, This
would be a major incentive to build affordable housing.
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IV. The method of notice of the Tier System hearings and implementation is now
advertisements in the newspaper. Because of the dramatic change in the value of
lal}d represented in the Tier System the result is a major across the board land use
change or in effect a comprehensive re-zoning of property.
Request: Direct notice of all Tier I and Tier II property owners by certified mail
or tax bills or in some more direct way than by newspaper ads are in order. This
notice should include a description of what the change is and how it will affect
their property.
Sincerely yours,
Edwin O. Swift, III
EOS/mhc
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