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Item I1 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: July 17, 2013 Division: Growth Mana_eg ment Bulk Item: Yes No X Staff Contact Person/Phone 4: Christine Hurley 289-2517 AGENDA ITEM WORDING: Discussion and direction on the requirement of Administration Commission Rule to adopt the Tier Overlay Zoning Maps into the Comprehensive Plan. ITEM BACKGROUND: Administration Commission Rule 28-20.140, F.A.C.,which was ratified by the Legislature in 2011, includes six Work Program Tasks [28-20.140(5)(a)l, 2, 3, 4, 5, and 6] requiring the County to adjust Tier boundaries Tier Zoning Overlay maps [(5)(a)2 ] and amend its Comprehensive Plan to adopt the Tier System Maps onto the Future Land Use Map Series [(5)(a)l, 3 and 4]. Monroe County has completed Work Program task (5)(a)2 with the adoption of four (4) ordinances [Ordinance 005-2011, 006-2011, 007-2011, and 008-2011] on May 4, 2011, revising or assigning the tier overlay designation for 3,394 parcels based upon recommendations from the Tier Designation Review Committee Work Group, Monroe County staff, the Planning Commission, Board of County Commissioners and the public. The Administration Commission and the Department of Economic Opportunity (DEO) have also reported that the County has completed Work Program task (5)(a)2, which is to amend the Tier Overlay Maps to more accurately reflect the criteria for that Tier as amended by Final Order DCA07-GM166. Additionally, the plaintiff in DOAH Case No. 06-2449GM requested additional revisions to the tier designations —for 393 parcels that were not included in the challenge. Further, the County identified 77 offshore island parcels for review because these parcels were not given a tier designation at the time of the adoption of the original Tier Ordinances in 2006. Collectively, the County refers to these additional Tier designation revisions as the `Volume A amendments.' The Volume A amendments [Ordinances 014-2013 and 015-2013] were adopted by the Board of County Commissioners on March 20, 2013. These amendments are currently under review by DEO; with an anticipated final order publish date of June 21, 2013. Assuming the June 21 st publish date and no challenges, the Volume A amendments will be effective by July 12th. The County has been awaiting the completion of the DEO review, the expiration of the appeal period, and for the Volume A Tier designation amendments to become effective — to initiate the discussion of the County adopting the Tier Maps into the Comprehensive Plan (which is required by Work Program Tasks (5)(a)1, 3 and 4). Throughout the process of updating information and adopting the six (6) ordinances, the County has been concerned with the possibility of new administrative proceedings pursuant to Section 120.569 and 120.57, F.S., which could delay the effectiveness of the ordinances and create significant cost and demands to the County. Completing Work Program Tasks (5)(a)1, 3 and 4 (adoption of the entire set of Tier Overlay maps into the Comprehensive Plan) could expose the County and every parcel (-44,000) with a Tier designation to a potential challenge. Monroe County Legal and Growth Management staff met with staff of the Department of Economic Opportunity on June 17, 2013,to discuss this issue. PREVIOUS RELEVANT BOCC ACTION: The Monroe County Board of County Commissioners adopted Tier Ordinances Nos. 008-2006, 009- 2006, 010-2006, 011-2006 and 013-2006, which set forth criteria in the Land Development Regulations implementing a Tier System and adopting Tier Overlay District Maps in order to protect the natural habitat and guide development toward less environmentally sensitive areas. On May 4, 2011, the Monroe County Board of County Commissioners adopted Ordinances Nos. 005- 2011, 006-2011, 007-2011 and 008-201, revising or assigning the tier overlay designation for 3,394 parcels. On March 20, 2013, the Monroe County Board of County Commissioners adopted Ordinances Nos. 014-2013 and 015-2013 (Volume A amendments). CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATIONS: Discussion of the pros and cons of completing Work Program Tasks (5)(a)1, 3, 4, 5, and 6. TOTAL COST: n/a INDIRECT COST: BUDGETED: Yes No DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes No x AMOUNT PER MONTH Year APPROVED BY: County Atty OMB/Purchasing Risk Management DOCUMENTATION: Included x Not Required DISPOSITION: AGENDA ITEM# Rule 28-20.140, F.A.C. (5) WORK PROGRAM. (a) Carrying Capacity Study Implementation. 1. By July 1, 2012, Monroe County shall adopt the conservation planning mapping (the Tier Zoning Overlay Maps and System) into the Comprehensive Plan based upon the recommendations of the Tier Designation Review Committee with the adjusted Tier boundaries. 2. By July 1, 2012, Monroe County shall adjust the Tier I and Tier ILIA (SPA) boundaries to more accurately reflect the criteria for that Tier as amended by Final Order DCA07-GM166 and implement the Florida Keys Carrying Capacity Study, utilizing the updated habitat data, and based upon the recommendations of the Tier Designation Review Committee Work Group. 3. By July 1, 2012, Monroe County shall create Goal 106 to complete the 10 Year Work Program found in Rule 28-20.110, F.A.C., and to establish objectives to develop a build-out horizon in the Florida Keys and adopt conservation planning mapping into the Comprehensive Plan. 4. By July 1, 2012, Monroe County shall create Objective 106.2 to adopt conservation planning mapping (Tier Maps) into the Monroe Comprehensive Plan based upon the recommendations of the Tier Designation Review Committee Work Group. S. By July 1, 2012, Monroe County shall adopt Policy 106.2.1 to require the preparation of updated habitat data and establish a regular schedule for continued update to coincide with evaluation and appraisal report timelines. 6. By July 1, 2012, Monroe County shall adopt Policy 106.2.2 to establish the Tier Designation Work Group Review Committee to consist of representatives selected by the Florida Department of Community Affairs from Monroe County, Florida Fish & Wildlife Conservation Commission, United States Fish & Wildlife Service, Department of Environmental Protection and environmental and other relevant interests. This Committee shall be tasked with the responsibility of Tier designation review utilizing the criteria for Tier placement and best available data to recommend amendments to ensure implementation of and adherence to the Florida Keys Carrying Capacity Study. These proposed amendments shall be recommended during 2009 and subsequently coincide with the Evaluation and Appraisal report timelines beginning with the second Evaluation and Appraisal review which follows the adoption of the revised Tier System and Maps as required above adopted in 2011. Each evaluation and appraisal report submitted following the 2011 evaluation and appraisal report shall also include an analysis and recommendations based upon the process described above. Amendment Process for adopting the Tier Overlay Zoning Maps into the Comprehensive Plan Development Review Committee (DRC) Planning Commission (PC) BOCC transmittal hearing County transmits the amendment package to State Land Planning Agency for review and issuance of an Objections, Recommendations and Comments (ORC) Report. (60 days after amendment package is found complete). County receives &reviews ORC report—County may need to address issues raised in the ORC report by recommending revisions to proposed amendments, providing additional data and analysis, etc. The County has 180 days to adopt the amendments, adopt the amendments with changes or not adopt the amendment. BOCC adoption hearing An "affected person" may file a petition with the Division of Administrative Hearings (DOAH)within 30 days after the BOCC adopts the amendment County transmits the amendment package to State Land Planning Agency for a compliance review and issuance of a Notice Of Intent to find the amendment"in- compliance" or"not-in-compliance" (45 days after package found complete). NOTE: If an appeal is filed, the CP does not go into effect, while that administrative appeal is pending. An appeal would require a referral to a DOAH hearing officer, who would issue an initial order attempting to schedule a hearing between 30 and 70 days from the date of the initial order but the hearing officer and/or the parties may seek a hearing date beyond the 70th day. Hearings can last more than one day; those days are not necessarily consecutive to each other. The hearing officer has 30 days from the conclusion of the hearing or receipt of the transcript, whichever is later, to enter a recommended order. F.A.C. 28- 106.216(1). The parties may file exceptions to the recommended order within 15 days. A party may file responses to the other party's exceptions within 10 days. The DEO Secretary would then review the recommended order and exceptions before entering a final order. The final order could be appealed to the 1 st or 3rd District Court of Appeal. Add 6 -12 months to timeframe for an Administrative Appeal Add an additional 6-12 months to timeframe for an Appeal to a District Court of Appeal If no appeal, the Comprehensive Plan amendment becomes effective. BOARD OF COUNTY COMMISSIONERS Mayor George Neugent,District 2 d CU N TYSO �MONROE Mayor Pro Tern,Heather Carruthers,District 3 Danny L.Kolhage,District 1 KEY WE5�s1�� LORIDA 3W40 �,, David Rice,District 4 ° I Sylvia J.Murphy,District 5 , Robert B.Shillinger,County Attorney** Office of the County Attorney Pedro J.Mercado,Assistant County Attorney 11 I P Street,Suite 408 Susan M.Grimsley,Assistant County Attorney** Key West,FL 33040 Natileene W.Cassel,Assistant County Attorney** M (305)292-3470—Phone Cynthia L.Hall,Assistant County Attorney** (305)292-3516—Fax Christine Limbert-Barrows,Assistant County Attorney** Derek V.Howard,Assistant County Attorney Lisa Granger,Assistant County Attorney Steven T.Williams,Assistant County Attorney **Board Certified in City,County&Local Govt.Law To: Christine Hurley, Growth Management Director y, County y ..... :From: Susan Grimsle Assistant Coun Attorney �.k. Re: Standing of Affected Persons to Challenge FLUM Overlay Date: July 2, 2013 You asked whether there had been a change in the definition of "affected persons" since inclusion of the Work Program task to adopt the tier maps into the Comprehensive Plan. That Work Program task was ratified in 2011, Administration Commission Rule 28-20.140, F.A.C. You also requested an explanation as to the difference between challenging a FLUM amendment versus a zoning amendment. I will assume you are talking about the Tier Overlay Maps as a FLUM amendment to the Comprehensive Plan and the Tier Overlay Maps in the Land Development Code. The definition of"affected persons" who may challenge the consistency of a comprehensive plan amendment with the statutes and Principles for Guiding Development has not changed and is broader and more inclusive than the requirement for standing to challenge the Land Development Regulations involving a county wide zoning. F.S. Sec. 163.3184(1)(a) includes as "affected persons," among others, persons owning property, residing, or owning or operating a business within the boundaries of the local government. To file a challenge to a comprehensive plan amendment, each person has to have made oral or written comments between the transmittal and adoption hearings. The Notice of Intent from the Department of Economic Opportunity(DEO) does not have to be issued in order to file a challenge. The state land planning agency (or DEO) may not intervene if an affected person challenges. However, affected persons may intervene when the state land planning agency issues a Notice of Intent to find the amendment not in compliance. The Community Planning Act (HB 7207) in 2011 changed the procedure for filing a petition by an affected person from filing within 21 days of the Notice of Intent by the DEO to filing 30 days after adoption by the local government, pursuant to F.S. 163.3184(5) with the Division of Administrative Hearings under the Administrative Procedures Act, Sec. 120.569 and 120.57. The standard for review when an affected person challenges did not change and remains "fairly debatable." Comprehensive plan amendments including FLUM amendments or a FLUM overlay are legislative. The fairly debatable standard of review is a highly deferential (to the enacting/ approving body) standard requiring approval on review of a planning action if reasonable persons could differ as to its propriety. The adoption of zoning ordinances and zoning maps is a legislative act, as is the comprehensive plan amendment process (AGO 2012-32). As an Area of Critical State Concern, the final order approving land development regulations (includes Tier Overlay Maps) is also issued by DEO. A challenge to the final order must be filed within 21 days of its publication. This is different from a comprehensive plan amendment challenge, where the challenge may be filed before the Notice of Intent is published. A challenge under Chapter 120, the Administrative Procedure Act, is by a "person whose substantial interests are affected." There is much case law on this, and it must be shown by the entity challenging, but environmental groups have met that standard. In either case, it is possible to have challenges, but "affected persons" automatically have standing. In summary, the class of people who may challenge inclusion of the tier maps into the comprehensive plan is broader.