Item P14
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
ADD-ON
Meeting Date: March 15. 2006
Bulk Item: Yes No -L
Division: County Attorney
Staff Contact Person: Jerry D. Sanders
AGENDA ITEM WORDING:
Discussion and direction to staff with guidance in negotiating with the Department of Community
Affairs and others with regard to the pending legislation to de-designate the Florida Keys as an Area of
Critical State Concern.
ITEM BACKGROUND:
Representative Ken Sorensen has introduced legislation to de-designate the Florida Keys as an Area of
Critical State Concern, Amendments to that bill have been proposed by the Department of Community
Affairs (DCA) which may alter the original intent of de-designation. Staff requests guidance and the
intent of the Board of County Commissioners (HQCC) as to such amendments. County Attorney staff
is also concerned regarding the effect the land development regulations (LDR's) imposed upon the
County by the Florida Administrative Commission, upon recommendation of the DCA, will have on
inverse condemnation actions. Staff desires direction from the BOCC as to proposing amendments to
the de-designation bill that would exempt Monroe County from the provisions of the Bert Harris Act.
PREVIOUS RELEVANT BOCC ACTION:
Unanimous approval of Resolution No. 493A-2005 on 12/21/05 and unanimous approval of Resolution
No. 030-2006 on 1/18/06, "elaborating on Resolution No. 493A-2005 to setforth specific protections
to be sought in legislation to remove designation as an "Area of Critical State Concern" from Monroe
County ".
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS:
Guidance and direction.
TOTAL COST:
BUDGETED: Yes
No
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No AMOUNTPERMONm Year
APPROVED BY: County Ally ~ OMB/Purcbasing_
DIVISION DIRECTOR APPROVAL:
DOCUMENTATION:
Not Required
DISPosmON:
Revised 2/05
AGENDA ITEM #
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Mayor McCoy
RII:8OLVTlOR RO. 03.~ 2006
A RBSOLUTlOR OF THE BOARD OF COUlfTY
COIOll88IODRS OF IIORROE COURTY ELABORATI1tG OK
RB8OLUTlOK KO. 493A-2OO5 TO SET FORTH SPBCIJ'IC
PROTBCTIOR. TO BE SOUGHT IR LEGISLATlOK TO REMOVE
DB810KATlOK AS AK "AlmA 01' CRITICAL STATE COKCERlI"
FROM IIORROE COUlfTY.
WHEREAS, the BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY (hereinafter "COUNTY") voted to seek legislation to remove Monroe
County from designation as an area of critical state concern, as reflected in
Resolution 493A-2005; and
WHEREAS, the resolution contains the verbiage recited in the motion, but
does not contain specific concerns raised during discussion on the motion; and
WIIBRBAS, a primary desire to have the area of critical state concern
designation lifted is based on delays created by State review of individual
development plans despite the fact that the County's land development
regulations and comprehensive plan have already received Department of
Community Affairs approval; and
WHEREAS, it is recognized that tourism and enhanced growth
management regulations will continue to impact Monroe County if and when the
designation as an area of critical state concern is removed; and
WIIBRBAS, it is recognized that certain benefits have accrued to Monroe
County due to its designation as an area of critical state concern; and
WHDBAS, it is desirable and necessary to retain as many benefits of the
critical state concern legislation as possible due to the unavailability of land, the
unique logistical difficulties and infrastructure requirements, such as
transportation of supplies and water, along with the increase in property values
at a phenomenal rate, all of which Monroe County faces in resolving issues
which are not experienced statewide; and
WIIBRBAs, it is preferable to phase out, and not abruptly cease, those
benefits available to an area of critical state concern which cannot be continued
indefinitely should the designation be removed; and
WIIEREAs, it is desired to formally set forth the specific concerns raised
by various commissioners as matters to be addressed and protected or phased
out through the proposed legislation;
Area of Critical State Concern. 1
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUN1Y
COMMISSIONERS OF MONROE COUNTY, that:
1. Resolution 493A-200S shall be elaborated upon as follows:
State Representative Sorenson is requested to seek legislation 1 to remove
Monroe County from designation as an area of critical state concern, which
legislation shall provide for the continuation, or phasing out, of certain
benefits which have accrued to Monroe County due to its designation as an
area of critical state concern. Those matters which the Board of County
Commissioners fmds to be in the best interests of the general public to
continue to be available to Monroe County, or at least to be gradually
phased out, are:
a) Retention of the ability to expend up to 10% of the infrastructure sales
tax on public uses other than infrastructure;
b) Retention of the tourist impact tax, which has been authorized by 6
125.0108, FS;
c) Retention of the Land Authority and its ability to purchase land in
Monroe County for the purposes available under 6 380.0666, FS,
particularly for purposes of conservation and affordable housing;
d) Continued participation by the State in fmancial responsibility for the
inverse condemnation awards and settlements resulting from the stringent
land use regulations required of Monroe County as an area of critical state
concern;
e) Continued availability of preferential points for competitive grants for
acquisition and preservation of the environment, acquisition and
development of recreational lands, and acquisition and development of
affordable housing;
1) To the extent possible and appropriate, the retention of recognition of
Monroe County's environmental and tourist-related significance to the
State so that legislation which affects only Monroe County due to unique
issues may still be passed;
g) The legislation should include the following language:
1 Any legislation to remove Monroe County, or portions thereof, from the area of critical state
concern, without undergoing the State's process set forth in Section 380.0552(4),FS, would require
repeal of or amendment to that statute.
Area of Critical State Concern. 2
Notwithstanding any proVIsion of Chapter 380, part I, to the
contrary, a local government within the Florida Keys area of critical
state concern or an area that was designated as an area of critical
state concern for at least twenty (20) consecutive years prior to
removal of the designation, may enact an ordinance that:
(1) Requires connection to a central sewerage system within
thirty (30) days of notice of availability of services; and
(2) provides a definition of on site sewage treatment and
disposal systems that does not exclude package sewage treatment
facilities if such facilities are in full compliance with all regulatory
requirements and treat sewage to advanced wastewater treatment
standards or utilize effluent reuse as their primary method of
effluent disposal.
2. The Board is committed to the final adoption of the Tier System for habitat
protection which should not delay the removal of Monroe County from
designation as an area of critical state concern.
3. The Board is committed to the continuation of its Ten-Year Work Plan to
accomplish providing wastewater treatment, and establishing work-force
and affordable housing in the unincorporated portions of the Florida Keys.
4. This Resolution shall become effective upon the date of its adoption
herein.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe
County, Florida, at a meeting of said Board held on the eighteenth day of
January, A.D. 2006.
Mayor Charles "Sonny" McCoy
Mayor Pro Tem Murray Nelson
Commissioner George Neugent
Commissioner David Rice
Commissioner Dixie Spehar
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RESOLUDON NO. 493A 2005
A RESOLUTION FOR THE REMOVAL OF MONROE
COUNTY FROM THE STATE ABA OF CRITICAL
CONCERN.
WHEREAS, The Department of Community Affairs, for the first time since
Monroe County was designated as Area of Critical Concern thirty years ago, has given
the County an approval grade on it's accomplislunents;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, THAT:
1. The Board of County Commissioners unanimously supports the removal
of Monroe County from the Area of Critical Concern Designation and
further that:
2. A cooperative postw"e remain between the State and the County to avoid a
disruption in the programs in progress.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe
County this 211l day of December, 2005,
.c::;:'-'-'='''''." Mayor Charles "Sonny' McCoy
,.?:'~UUA'i:;Mayor ProTem Murray Nelson
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(i~f~>: ~~i.'eom..issioner Dixie M. Spehar
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Amendment to HB 1299
De-Designation of Monroe County
as Area of Critical State Concern
as Proposed By Staff of
Department of Community Affairs
STAFF DRAFT ONLY - SUBJECT TO REVIEW AND SUBSTANTIAL REVISION
03/8/2006; 8:00 A.M.
On Page 4, strike lines 93 through 105 and insert the following:
(d) The determination of the Administration Commission as to
whether substantial progress has been made toward accomplishing the
tasks of the work program may be judicially reviewed pursuant to
chapter 86. All proceedings shall be conducted in the circuit court
where the Administration Commission maintains its headquarters, and
shall be initiated within 30 days after rendition of the Administration
Commission determination. The Administration Commission's
determination as to whether substantial progress has been made toward
accomplishing the tasks of the work program shall be upheld if it is
fairly debatable and shall not be subject to administrative review
under chapter 120.
(e) In its review of comprehensive plans and comprehensive plan
amendments adopted by local governments in the Florida Keys Area after
removal of designation as an area of critical state concern, the
department shall review the local comprehensive plans, and any
amendments, which are applicable to the Florida Keys for compliance
with the following provisions in addition to its review of local
comprehensive plans and amendments for compliance as defined in s.
163.3184; and all the procedures and penalties described in s. 163.3184
shall be applicable to this review.
1. Adoption of goals, objectives and policies to limit
the adverse impacts of development on habitat and the quality of water
throughout the Florida Keys and the adverse impacts of public
investments on the environmental resources of the Florida Keys;
2. Adoption of construction schedules for wastewater
facilities improvements in the annually adopted Capital Improvements
Element and adoption of standards for the construction of wastewater
treatment facilities that meet or exceed the criteria of Chapter 99-
395, Laws of Florida; and
3. Adoption of goals, objectives and policies to protect
public safety and welfare in the event of a natural disaster by
maintaining a hurricane evacuation clearance time for permanent
residents of no more than 24 hours. The hurricane evacuation clearance
time shall be determined by a hurricane evacuation study conducted in
accordance with a professionally accepted methodology and approved by
the Department of Community Affairs.
HB 1299
De-Designation of Monroe County
as Area of Critical State Concern
Sponsored by
Representative Ken Sorensen
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1 A bill to be entitled
2 An act relating to areas of critical state concern;
3 amending s. 125.0108, F.B.; authorizing the continued levy
4 of the tourist impact tax in areas of critical state
5 concern removed from designation; amending s. 212.055,
6 F.B.; authorizing certain counties to continue the use of
7 a portion of local government infrastructure surtax
8 proceeds for certain purposes after removal of designation
9 of an area as an area of critical state concern; amending
10 s. 380.0552, F.B.; providing requirements, procedures, and
11 criteria for Administration Commission removal of
12 designation of the Florida Keys Area as an area of
13 critical state concern; requiring removal of the
14 designation under certain circumstances; providing for
15 judicial review of Administration Commission
16 determinations; amending s. 380.0666, F.B.; revising the
17 powers of a land authority in an area of critical state
18 concern to acquire property to provide affordable housing;
19 providing for continued power of a land authority to
20 acquire property within an area of critical state concern
21 removed from designation; amending s. 380.0674, F.B.;
22 providing for the continuation of a land authority in an
23 area of critical state concern after removal of the
24 designation; amending s.4, ch. 99-395, Laws of Florida;
25 authorizing local governments in areas of critical state
26 concern removed from designation to continue to enact
27 ordinances relating to central sewerage systems; providing
28 for continuation of existing state liability in certain
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57 and such other requirements as the Legislature may provide.
58 Taxable transactions and administrative procedures shall be as
59 provided in s. 212.054.
60 (2) LOCAL GOVERNMENT INFRASTRUCTURE SURTAX. --
61 {f)1. Notwithstanding paragraph (d), a county that has a
62 population of 50,000 or less on April 1, 1992, or any county
63 designated as an area of critical state concern on the effective
64 date of this act, and that imposed the surtax before July 1,
65 1992, may use the proceeds and interest of the surtax for any
66 public purpose if:
67 a. The debt service obligations for any year are met;
68 b. The county's comprehensive plan has been determined to
69 be in compliance with part II of chapter 163; and
70 c. The county has adopted an amendment to the surtax
71 ordinance pursuant to the procedure provided in s. 125.66
72 authorizing additional uses of the surtax proceeds and interest.
73 2. A municipality located within a county that has a
74 population of 50,000 or less on April 1, 1992, or within a
75 county designated as an area of critical state concern on the
76 effective date of this act, and that imposed the surtax before
77 July 1, 1992, may not use the proceeds and interest of the
78 surtax for any purpose other than an infrastructure purpose
79 authorized in paragraph (d) unless the municipality's
80 comprehensive plan has been determined to be in compliance with
81 part II of chapter 163 and the municipality has adopted an
82 amendment to its surtax ordinance or resolution pursuant to the
83 procedure provided in s. 166.041 authorizing additional uses of
84 the surtax proceeds and interest. Such municipality may expend
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85 the surtax proceeds and interest for any public purpose
86 authorized in the amendment.
87 3. Those counties designated as an area of critical state
88 concern which qualify to use the surtax for any public purpose
89 may use only up to 10 percent of the surtax proceeds for any
90 public purpose other than for infrastructure purposes authorized
91 by this section. A county that was designated as an area of
92 critical state concern for at least 20 consecutive years prior
93 to removal of the designation, and that qualified to use the
94 surtax for any public purpose at the time of the removal of the
95 designation, may continue to use up to 10 percent of the surtax
96 proceeds for any public purpose other than for infrastructure
97 purposes authorized by this section after the removal of the
98 designation.
99 Section 3. Subsection (4) of section 380.0552, Florida
100 Statutes, is amended to read:
101 380.0552 Florida Keys Area; protection and designation as
102 area of critical state concern.--
103 (4) REMOVAL OF DESIGNATION.--
104 (a) Between July 12, 2007, and August 30, 2007, the state
105 land planning agency shall submit a written report to the
106 Administration Commission describing in detail the progress of
107 the Florida Keys Area toward accomplishing the tasks of the work
108 program as defined in paragraph (c) and providing a
109 recommendation as to whether substantial progress toward
110 accomplishing the tasks of the work program has been achieved.
111 Subsequent to receipt of the report, the Administration
112 Commission shall determine, prior to October 1, 2007, whether
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113 substantial progress has been achieved toward accomplishing the
114 tasks of the work program. The designation of the Florida Keys
115 Area as an area of critical state concern under this section
116 shall be removed October 1, 2007, unless the Administration
117 Commission finds, after receipt of the state land planning
118 agency report, that substantial progress has not been achieved
119 toward accomplishing the tasks of the work program. If the
120 designation of the Florida Keys Area as an area of critical
121 state concern is removed, the Administration Commission, within
122 60 days after removal of the designation, shall initiate
123 rulemaking pursuant to chapter 120 to repeal any rules relating
124 to the designation of the Florida Keys Area as an area of
125 critical state concern. If, after receipt of the state land
126 planning agency's report, the Administration Commission finds
127 that substantial progress toward accomplishing the tasks of the
128 work program has not been achieved, the Administration
129 Commission shall provide a written report to the Monroe County
130 Commission within 30 days after making such finding detailing
131 the tasks under the work program that must be accomplished in
132 order for substantial progress to be achieved within the next 12
133 months.
134 (b) If the designation of the Florida Keys Area as an area
135 of critical state concern is not removed in accordance with
136 paragraph (a), the state land planning agency shall submit a
137 written annual report to the Administration Commission on
138 November 1 of each year, until such time as the designation is
139 removed, describing the progress of the Florida Keys Area toward
140 accomplishing remaining tasks under the work program and
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141 providing a recommendation as to whether substantial progress
142 toward accomplishing the tasks of the work program has been
143 achieved. The Administration Commission shall determine, within
144 45 days after receipt of the annual report, whether substantial
145 progress has been achieved toward accomplishing the remaining
146 tasks of the work program. The designation of the Florida Keys
147 Area as an area of critical state concern under this section
148 shall be removed unless the Administration Commission finds that
149 substantial progress has not been achieved toward accomplishing
150 the tasks of the work program. If the designation of the Florida
151 Keys Area as an area of critical state concern is removed, the
152 Administration Commission, within 60 days after removal of the
153 designation, shall initiate rulemaking pursuant to chapter 120
154 to repeal any rules relating to the designation of the Florida
155 Keys Area as an area of critical state concern. If the
156 Administration Commission finds that substantial progress has
157 not been achieved, the Administration Commission shall provide
158 to the Monroe County Commission, within 30 days after making its
159 finding, a report detailing the tasks under the work program
160 that must be accomplished in order for substantial progress to
161 be achieved within the next 12 months.
162 (c) For purposes of this subsection, the term "work
163 program" means the 10-year work program as set forth in chapter
164 28-20.110, Florida Administrative Code, on January I, 2006,
165 excluding amendments to the work program that take effect after
166 January 1, 2006.
167 (d) Judicial review of the Administration Commission's
168 determination as to whether substantial progress has been made
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169 toward accomplishing the tasks of the work program shall be
170 sought in the circuit court where the Administration Commission
171 maintains its headquarters or in the circuit court with
172 jurisdiction over the Florida Keys Area as described in chapter
173 28-29, Florida Administrative Code. All proceedings shall be
174 initiated in accordance with the Florida Rules of Civil
175 Procedure within 30 days after the Administration Commission
176 renders its determination. The Administration Commission's
177 determination as to whether substantial progress has been made
178 toward accomplishing the tasks of the work program shall not be
179 subject to administrative review under chapter 120. The otate
180 land planning a~~noy, follmdng July 15, 1990, ohall reooHIfRond
181 to the hdminiotration COHlfRiDoion the removal of the deoignation
182 opeoified in ouboeotion (3) if it determineD that ~ll looal l~nd
183 development regul~tiono and local oomprehenoivc pIano ~nd the
184 ~dminiotration of ouch regulationo ~nd pIano arc adequate to
185 protect the Florida Kcyo Area and continue to oarry out the
186 legiol~tive intent incorporated in DubDection (2) ~nd are in
187 complianoe 'Ii:ith the principleD for guiding development
188 incorporated in ouboection (7). If the Adminiotration Commiooion
189 concuro ~:ith the recommendationo of the otate land pl~nning
190 agenoy to remo~e the deoignation, it ohall, within ~s dayo of
191 reoeipt of the reoommendation, initi~te ruleHl~]dng to remove the
192 deoignation. The otate land planning ~genoy Dh~ll thereafter
193 make oaid deterlRination annually, until ouch time ao the
194 deoignation io removed.
195 Section 4. Subsection (3) of section 380.0666, Florida
196 Statutes, is amended to read:
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197 380.0666 Powers of land authority.--The land authority
198 shall have all the powers necessary or convenient to carry out
199 and effectuate the purposes and provisions of this act,
200 including the following powers, which are in addition to all
201 other powers granted by other provisions of this act:
202 (3) To acquire and dispose of real and personal property
203 or any interest therein when such acquisition is necessary or
204 appropriate to protect the natural environment, provide public
205 access or public recreational facilities, preserve wildlife
206 habitat areas, provide affordable housing to families whose
207 income does not exceed 160 percent of the median family income
208 for the area vcry Im~ iBcomc, 1mii' income, or moderate income
209 peroonD, aD defined in D. ~20.000~, or provide access to
210 management of acquired lands; to acquire interests in land by
211 means of land exchanges; and to enter into all alternatives to
212 the acquisition of fee interests in land, including, but not
213 limited to, the acquisition of easements, development rights,
214 life estates, leases, and leaseback arrangements. However, the
215 land authority shall make such acquisition only if:
216 (a) Such acquisition is consistent with land development
217 regulations and local comprehensive plans adopted and approved
218 pursuant to this chapter;
219 (b) The property acquired is within an area designated as
220 an area of critical state concern at the time of acquisition or
221 is within an area that was designated as an area of critical
222 state concern for at least 20 consecutive years prior to removal
223 of the designation; and
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224 (c) The property to be acquired has not been selected for
225 purchase through another local, regional, state, or federal
226 public land acquisition program. Such restriction shall not
227 apply if the land authority cooperates with the other public
228 land acquisition programs which listed the lands for
229 acquisition, to coordinate the acquisition and disposition of
230 such lands. In such cases, the land authority may enter into
231 contractual or other agreements to acquire lands jointly or for
232 eventual resale to other public land acquisition programs.
233 Section 5. Section 380.0674, Florida Statutes, is amended
234 to read:
235 380.0674 Corporate existence.--
236 (1) The land authority and its corporate existence shall
237 continue until terminated by law or action of the governing
238 board of the county that established it; however, no such law or
239 action shall take effect so long as the land authority shall
240 have bonds outstanding unless adequate provision has been made
241 for the payment thereof. Upon termination of the existence of
242 the land authority, all its rights and properties in excess of
243 its obligations shall pass to and be vested in the state.
244 (2) A land authority created by a county in which one or
245 more areas have been designated as an area of critical state
246 concern for at least 20 consecutive years prior to removal of
247 the designation shall continue to exist and exercise all powers
248 granted by this chapter until terminated by law or action of the
249 governing board pursuant to subsection (1).
250 Section 6. Section 4 of chapter 99-395, Laws of Florida,
251 is amended to read:
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252 Section 4. Notwithstanding any provision of chapter 380,
253 part I, to the contrary, a local government within the Florida
254 Keys area of critical state concern or an area that was
255 designated as an area of critical state concern for at least 20
256 consecutive years prior to removal of the designation may enact
257 an ordinance that:
258 (1) Requires connection to a central sewerage system
259 within 30 days of notice of availability of services; and
260 (2) Provides a definition of onsite sewage treatment and
261 disposal systems that does not exclude package sewage treatment
262 facilities if such facilities are in full compliance with all
263 regulatory requirements and treat sewage to advanced wastewater
264 treatment standards or utilize effluent reuse as their primary
265 method of effluent disposal.
266 Section 7. If the designation of the Florida Keys Area as
267 an area of critical state concern is removed, the state shall be
268 liable in any inverse condemnation action initiated as a result
269 of Monroe County land use regulations applicable to the Florida
270 Keys Area as described in chapter 28-29, Florida Administrative
271 Code, and adopted pursuant to instructions from the
272 Administration Commission or pursuant to administrative rule of
273 the Administration Commission, to the same extent that the state
274 was liable on the date the Administration Commission determined
275 that substantial progress had been made toward accomplishing the
276 tasks of the work program as defined in s. 380.0552(4) (c),
277 Florida Statutes. If, after the designation of the Florida Keys
278 Area as an area of critical state concern is removed, an inverse
279 condemnation action is initiated based upon land use regulations
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280 that were not adopted pursuant to instructions from the
281 Administration Commission or pursuant to administrative rule of
282 the Administration Commission and in effect on the date of the
283 designation's removal, the state's liability in the inverse
284 condemnation action shall be determined by the courts in the
285 manner in which the state's liability is determined in areas
286 that are not areas of critical state concern. The state shall
287 have standing to appear in any inverse condemnation action.
288 Section 8. This act shall take effect July 1, 2006.
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