Item Y3
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: July 15,2003
Bulk Item: Yes No X
Division: Growth Management
Department: Planning
AGENDA ITEM WORDING: Second of two public hearings to designate Tier map boundaries and
adopt an Interim Development Ordinance deferring ROGO and NROGO allocations in Tier I and Tier II
until amendments to the 2010 Comprehensive Plan and Land Development Regulations implementing the
Work Program mandated by Rule 28-20, F.A.C. are complete and adopted or eighteen months, whichever
comes first. (Two public hearings required)
ITEM BACKGROUND: After receiving recommendations from the County staff, hearing testimony of
the public, and deliberating on the draft Interim Development Ordinance at the first public hearing, the
County Commission directed staff to revise the proposed ordinance to address its concerns and those of
the public. In carrying out the Commission's directions, the staff believes that a "non-moratorium"
approach may be an approach worth considering by the Board rather than the proposed "moratorium"
approach in order to implement the Work Program mandated by Rule 28-20, Florida Administrative Code
and other purposes outlined in the staff report.
The staff has prepared an alternative Interim Development Ordinance that follows this approach to
implement the Work Program. If the Board decides that it wants to further consider this ordinance rather
than the initially proposed ordinance, either in its present or a revised form, the proposed alternative
ordinance would have to be advertised and a new public hearing held at the BOCC's regularly scheduled
August 20, 2003, meeting in Key Largo.
PREVIOUS RELEVANT BOARD ACTION: The Board directed staff to revise the proposed draft
ordinance in response to its concerns, staff recommendations, and public input at the public hearing held
on June 18,2003.
CONTRACVAGREEMENTCHANGES: NM
STAFF RECOMMENDATION: Approval to advertise alternative draft ordinance for August 20,2003,
public hearing.
TOTAL COST: N/A
BUDGETED: Yes
No
N/A
COST TO COUNTY:
N/A
SOURCE OF FUNDS:
N/A
REVENUEPRODUCING:Yes No N/A AMOUNT PER MONTH N/A YEAR
APPROVED BY: County Attorney X
N/A
DIVISION DIRECTOR APPROVAL:
DOCUMENTATION: Included L
To follow
qUirekI
DISPOSITION:
AGENDA ITEM #:
County of Monroe
Growth Mana~ernent Division
2798 Overseas Highway
Suite 410
Marathon, florida 33050
Voice: 305.289. 2500
FAX: 305.289. 2536
Board of Countv Commissioners
Mayor Dixie Spehar, District 1
Mayor Pro Tern Murray Nelson, District 5
Comm. Charles "Sonny" McCoy, District 3
Comm. George Neugent, District 2
Comm. David Rice, District 4
MEMORANDUM
TO:
Board of County Commissioners
Timothy J. McGarry, AICPI"dA
Director of Growth Manag~t
FROM:
DATE:
July 4, 2003
SUBJECT:
Proposed Alternative Interim Development Ordinance
OVERVIEW
At the June 18, 2003, public hearing to considered an Interim Development Ordinance to adopt
Tier Maps and interim development regulations to defer ROGOINRGO allocations in Tier I and IT,
the Board directed staff to re-evaluate the proposed ordinance based on its concerns and public
testimony. The primary concerns raised were the accuracy of Tier Maps, County's legal liability in
imposing a moratorium, why the need for moratorium, lack of any dedicated public funding for
land acquisition, and need for an expeditious process to amend boundaries of the maps.
In response, the Growth Management Division has prepared an alternative Interim Development
Ordinance that does not rely on a moratorium or adoption of the Tier Maps. Instead this proposed
Interim Development Ordinance designates only Tier I mapped areas (called "Conservation and
Natural Areas" in this ordinance). It further provides for temporary changes in ROGOINROGO
scoring that only affect lands within the designated Conservation and Natural Areas and lands with
hammock.
Should the Board of County Commissioners decide to consider this alternative ordinance, rather
than the initial advertised Interim Development Ordinance, it will have to be advertised for a public
hearing as it represents a substantive revision. The staff is recommending that the Board support
this alternative ordinance, as presented or with revisions, and direct staff to advertise the ordinance
for public hearing at 5:00 p.m., August 20, 2003, in Key Largo.
BACKGROUND ANALYSIS
In reviewing the public testimony and concerns raised by the Board of County Commissioners, the
staff identified three major issues examined in revising the proposed Interim Development
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Ordinance to meet the concerns raised at the meeting: (1) need for interim development
regulations; (2) geographic scope of such interim regulations; and, (3) and implementation of
interim development regulations without the need for a moratorium.
Need for an Interim DeveloDment Ordinance. The Growth Management Division has identified
the following four important reasons, listed in order of importance, for the enactment of some form
of interim development regulations:
o Interim development regulations are needed to further protect significant upland
habitat during the time period required by staff to complete necessary amendments
to the Year 2010 Comprehensive Plan to implement Goal 105 of the Comprehensive
Plan and recommendations of the terrestrial module of the Florida Keys Carrying
Capacity Study (FKCCS).
New development impacting significant upland habitat areas is currently receiving
RaGa allocations, which is causing further fragmentation and degradation of the
remaining viable hammocks. It is clearly evident to the Planning Commission and
staff based on site visits and public testimony that quality, irreplaceable upland
habitat is being incrementally lost or negatively impacted on a lot by lot basis. The
existing permit allocation system and environmental regulations have been unable
to adequately protect this upland habitat.
o Interim development regulations are needed to temporarily resolve issues raised by
the Florida Department of Community Affairs in its Notice of Violation filed against
the County concerning its administration of its Habitat Evaluation Index and
inadequate regulations to protect low and high hammock until new regulations can
be enacted to implement Goal 1 05 of the Comprehensive Plan and the FKCCS.
In January 3, 2003, the Florida Department of Community Affairs (DCA) filed a
Notice of Violation (Case No. DCA03-NOV-004) citing the County on eight counts
of failure to properly administer its Habitat Evaluation Index (REI) and amend its
regulations to more fully protect upland habitat. The Growth Management Division
strongly disputes these allegations made by DCA, but the staff does believe that the
current system of evaluating habitat on a lot by lot basis is seriously flawed,
unintelligible to most members of the general public, and fails to adequately protect
the habitat in the long term.
Rather than trying to "patch up" a fatally-flawed system and regulations, as DCA
has called for in its Notice of Violation to the County, the staff believes that only a
substantive overhaul of the system will provide the needed protection of the
remaining significant upland habitat and eliminate further petty squabbles over
environmental protocols in applying HEI regulations.
This overhaul is needed to both simplify the current system and address terrestrial
ecosystems on a systematic basis, rather than a parcel by parcel, lot by lot basis.
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These objectives can be accomplished in conjunction with the implementation of
Goal 105 and the FKCCS by simplifying existing regulations and coordinating the
update of upland habitat and protected animal species maps in a digital data base.
The DCA staff has informally indicated to County staff that if the County were to
pursue a moratorium or interim development regulations to address the significant
issues raised in that agency's NOV that it may be favorably inclined to at least abate
its NOV. Ifno settlement is reached with DCA on this issue, one way or another, in
all likelihood the County and permit applicants may have to look forward to further
appeals of any building permits in hammocks.
o Interim development regulations are needed to expand the numbers and locations of
lots and parcels eligible for dedication under ROGO/NROGo.
The existing Land Development Regulations only allow for the dedication of lots
for positive points under ROGO/NROGO to lands "proposed for acquisition by
governmental agencies for the purposes of conservation or resources protection."
This definition currently limits these properties to CARL ("Florida Forever") lands
and the U.S. Fish and Wildlife Refuge administrative boundaries.
For example, excluding Big Pine and No Name Keys, expanding the eligibility for
dedication under ROGO/NROGO to all lands within Tier I would greatly expand
the potential number of acres eligible for dedication by over 14,300 acres.l This
designation will "put into play" for dedication the very lands that the FKCCS and
scientific study show are the most significant for protection and enhancement of
upland habitat for sustaining protected animal species.
Any such designation is a significant policy step for the County. It focuses the
County acquisition efforts primarily on those areas that represent the core upland
habitat called for by the FKCCS to be protected to maintain a sustainable terrestrial
ecosystem in the future. It provides the policy and legislative framework for
securing vitally needed dedicated financial support from both the State and federal
governments for land acquisition, including a policy rationale for the expansion of
CARL ("Florida Forever") boundaries.
o Interim development regulations are needed to help Monroe County demonstrate
substantial progress toward achieving the July 14, 2003, deadline established in
Section C of Year 6 of the Work Program enacted by the Florida Administration
Commission in Rule 28-20.100 that mandates the County implement the Florida
Keys Carrying Capacity Study by the adoption of all necessary plan amendments
and regulations to ensure new development does not exceed the carrying capacity
of the County's natural environment.
I Based on the Property Tax Appraiser records, the total assessed value of vacant, private land, excluding Big Pine and
No Name Keys, is approximately $30 million including 1,325 ISIURM lots assessed at $11.9 million.
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This deadline established by the Governor and Cabinet a couple years ago was very
ambitious. With the delay in the completion of the Florida Keys Carrying Capacity
Study (FKCCS) this deadline is impossible to meet particularly considering the
length of time it takes to properly prepare and process such amendments with any
level of public input.
As the County will not meet this deadline, it is unclear what determination the
Governor and Cabinet will make on the County's progress in achieving this
objective. However, the County has been given some assurances by the Florida
Department of Community Affairs staff that it would make a favorable
recommendation to the Governor and Cabinet on this objective of the Work
Program if the County were to take strong action to further protect upland habitat
during the period of time the amendments to the Comprehensive Plan and Land
Development Regulations are being prepared.
At the June 18th public hearing, numerous members of the public voiced their
criticisms of the FKCCS and questioned how or why the County should be
implementing a flawed document. The consensus of the scientific peer group that
evaluated the FKCCS, was that the study has serious deficiencies, limiting its
usefulness for determining any thresholds concerning the carrying capacities of the
Key's man-made and natural systems. Its primary weakness is that it provides no
valid scientific framework or models for properly evaluating the quantitative
impacts of growth (increase in numbers of residents, visitors, units, etc.) on the
capacity of the natural system.
However, this scientific peer group did conclude that the terrestrial module of the
FKCCS provides adequate data and a scientific basis for determining the impacts of
development in a spatial framework in regards to significant native habitat and
protected animal species. Therefore, the conclusions reached by the terrestrial
module that "the evaluation of the terrestrial ecosystem demonstrated that land
development in the Florida Keys has surpassed the capacity of the upland habitats to
withstand further development" has relevance to the County which needs to
implement the FKCCS.
Geol!raohic Scooe for an Interim Develooment Ordinance. The geographic scope of the
initially advertised Interim Development Ordinance was Tier I and Tier II areas, identified in a
series of maps to be adopted by the Board of County Commissioners as part of the ordinance. The
Tier I areas contained all significant upland habit of four acres or more identified in the habitat data
utilized in the FKCCS, including all high quality hammock and pinelands, lands needed to connect
isolated patches of existing upland habitat and provide buffers between habitat areas and
development, all CARL lands, publicly-owned conservation lands, and most lands zoned
Conservation, Sparsely Settled, and Native Area.
These lands within Tier I are precisely those significant upland habitats necessary to sustain
protected animal species, called for by the terrestrial module of the FKCCS. These significant
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upland habitat lands coupled with beachlberm and wetlands already protected under County
regulations form the essential core of environmentally sensitive lands to implement the
recommendations of the FKCCS and Goal 105 of the Comprehensive Plan.
The Tier II areas are characterized by having low to moderate quality upland habitat, which is
generally of local importance, rather than habitat of County-wide significance needed for the
sustainability of terrestrial ecosystem identified in the FKCCS. These areas were designated by the
Planning Department more for planning reasons (reduction of sprawl and retirement of
development rights) than environmental (acquisition of conservation lands) ones.
The staff believes that the recommended inclusion of Tier II lands by the Planning Commission
was directly related to the issues surrounding the DCA Notice of Violation regarding upland
habitat regulations, based on the testimony given by environmental interest groups and individuals.
Furthermore, this inclusion acknowledged the on-going dispute between many in the
environmental community and County and its experts concerning what constitutes significant
upland habitat in the Keys.
It is the Growth Management staffs contention, supported by its experts, and based upon the
digital habitat data provided to the County that was used in the FKCCS, that the proposed Tier I
boundaries cover all significant habitat for sustaining protected animal species. Any upland areas
outside these areas contain only patches of fragmented and less viable upland habitat, which may
be of local significance. Therefore, considering the limitations on the County's financial resources
to acquire lands for conservation and its legal exposure, the primary emphasis of any land
acquisition and regulatory efforts should be placed on protecting, acquiring, and restoring
significant upland habitat needed for sustaining protected animal species.
The inclusion of all Tier II lands within any interim development regulations only diverts the
County from its more important priority. While the patches of upland habitat in Tier II areas do
serve as habit for some protected wide ranging species, the limited viability and fragmented nature
of this habitat and impact from existing development patterns, minimize their overall importance in
acquisition efforts due to financial and legal issues.
A secondary issue related to the geographic scope of any interim development regulations is
concerns over the accuracy of the Tier maps. While the boundaries of the Tier I areas are in the
opinion of the County staff very accurate, further data needs to be gathered and public input
received to fix boundaries for Tiers II and III. Therefore, although the staff continues to support
and recommend a Tier system that will provide the template for streamlining ROGO/NROGO and
the County's environmental regulations, it may be desirable and practical at this time to consider
only adopting the Tier I boundaries as part of any Interim Development Ordinance.
Moratorium or No Moratorium. At the June 18th public hearing, the Board of County
Commissioner stated its concerns about enacting a moratorium for any period of time, especially
without any dedicated funding set aside for land acquisition. Understanding such concerns, the
staff reviewed the reasons for enacting the proposed interim development regulations and re-
examined whether these needs can be achieved without a moratorium.
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The initially advertised Interim Development Ordinance calls for an I8-month moratorium on all
ROGO/NROGO allocations within Tier I and II areas. The purpose of this moratorium would be
to ensure that no further development occurs within hammock areas until new regulations are in
place.
It would effect all properties within these Tiers, no matter if upland habitat (i.e, hammock) were
present or not. It would provide protection for all significant upland habitat during the period new
regulations were being prepared. But the proposed I8-month moratorium mayor may not
satisfactorily address the complaints in the DCA Notice of Violation, as issues regarding upland
habitat on properties within proposed Tier ill areas have been raised by environmental groups
supporting DCA's action.
In its re-examination of the issue, the staff determined that most properties within the Tier I areas
are generally not competitive (without expenditure of large sums of money) under
ROGO/NROGO. Therefore, the staff finds that it is possible by further revising of ROGO/NROGO
scoring to make it very unlikely that any properties in Tier I would receive an allocation during the
effective period of any Interim Development Ordinance without having to rely upon a moratorium.
Although such temporary revisions to ROGO/NROGO scoring which would ensure more
protection for significant upland habitat, as called for by the FKCCS, during the preparation of new
regulations, they do not adequately address all the issues raised by DCA in its NOV. The scope of
this NOV extends to all properties with any type of hammock, even those outside of proposed Tier
I areas.
To address these NOV issues, the staff believes that temporary revisions to ROGO/NROGO
scoring are also a possible solution. Such revisions can be made that affect only those properties
involving the clearance of hammock, which is the central point of contention in the majority of the
allegations raised by DCA in its NOV.
PRINCIPAL ELEMENTS OF THE INTERIM DEVELOPMENT ORDINANCE (IDO)
Based on the above background analysis presented, the staff has prepared an alternative Interim
Development Ordinance (attached), which contains the following principal elements.
o Designates only the boundaries for Tier I, called "Conservation and Natural Areas".
o Provides streamlined procedures for amending the boundaries of the Conservation and
Natural Areas (Tier I).
o Excludes Big Pine Key and No Name Key from the provisions of this ordinance as these
areas are under the Habitat Conservation Plan and Community Master Plan now in
progress.
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o Exempts from the provisions of this ordinance any ROGOINROGO application with an
entry date of July 14,2003 or earlier (end ofROGO quarter). [Note: The exemption date
from the provisions of the IDO is extended to include the current ROGO quarter, as the
BOCC would not be taking official action until August 20,2003, at the earliest.]
o Provides an 18-month term limit on the interim development regulations with a possible six
month extension to allow sufficient time to draft and adopt amendments to the
Comprehensive Plan and Land Development Regulations.
o Does not defer any ROGOINROGO applications during the terms of the ordinance, but
does: (I) assign an automatic negative ten points under ROGOINROGO for habitat
protection and disallow the aggregation of lots for positive ROGOINROGO points in the
Conservation and Natural Areas (Tier 1); (2) assign an automatic negative five points under
ROGOINROGO for habitat protection for the clearance of any hammock area outside of
Conservation and Natural Areas (Tier I); and, (3) require for any permit receiving a
ROGOINROGO allocation meet the minimum open space requirements for any hammock
clearance in Tier I of 80 percent and all areas outside Tier I of least 60 percent. 2
o Expands the area of lot dedication under ROGOINROGO to include all of the properties
within the Conservation and Natural Areas (Tier I).
o Provides direction to County staff on significant concerns and issues that need to be
addressed in the preparation of the amendments to the Comprehensive Plan and Land
Development Regulations -see Section 15 of the ordinance.
Supporting Information
The supporting information used to prepare this draft alternative Interim Development Ordinance
was provided in the June meeting agenda package for the initially proposed ordinance. This
supporting information included: staff report entitled "Implementing Goal 105 and the Carrying
Capacity Study"; question and answer sheet on the Tier system; and legal analysis provided by
Tyson Smith, attorney with the firm of Freilich, Leitner, and Carlisle.
Alternative Ordinances
With this newly proposed ordinance, the Board of County Commissioners has an alternative
approach to a moratorium. In the opinion of the staff, this alternative also satisfactorily addresses
the needs identified for the enactment of interim development regulations during the I8-month
time period required to prepare amendments to the Comprehensive Plan and Land Development
Regulations. Although this alternative approach is slightly more complex than a moratorium, the
staff believes that it will accomplish the purposes identified for enacting interim development
regulations without raising the legal concerns inherent with any moratorium.
2 In general, assigning an automatic 5 negative points will affect many ROGO applications now receiving between
minus 2 points (low quality hannnock) or plus I point (disturbed with hammock).
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If the Board of County Commissioners concludes that that it wants to pursue consideration of the
alternative Interim Development Ordinance presented in this agenda package, the proposed
ordinance will need to be advertised for public hearing on August 20, 2003, in Key Largo. [This
ordinance needs to be advertised for another public hearing, as it represents a substantive change to
the ordinance advertised.]
Recommendations
The Growth Management Division staff recommends that the Board of County Commissioners
approve a motion indicating its support to further consider this proposed alternative Interim
Development Ordinance rather than the previously advertised ordinance, and instruct the staff to
advertise the ordinance for public hearing on August 20, 2003, at 5 :00 p.m., in Key Largo.
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ALTERNATIVE
INTERIM DEVELOPMENT ORDINANCE
DESIGNATING CONSERVATION AND NATURAL AREA
BOUNDARIES (TIER I) AND
REVISING SCORING UNDER ROGOINROGO PERMIT ALLOCATION
SYSTEMS IN TIER I AREAS AND
OTHER LANDS WITH HAMMOCK OUTSIDE OF TIER I AREAS
BOARD OF COUNTY COMMISSIONERS
KEY WEST HARVEY GOVERNMENT CENTER
JULY 15,2003
ORDINANCE NO.
AN ORDINANCE BY THE MONROE COUNTY
BOARD OF COUNTY COMMISSIONERS
DESIGNATING CONSERVATION AND NATURAL
AREAS AND ADOPTING INTERIM DEVELOPMENT
REGULATIONS THAT REVISE SCORING UNDER
THE COUNTY'S ROGO AND NROGO PERMIT
ALLOCATION SYSTEMS UNTIL NECESSARY
LAND DEVELOPMENT REGULATIONS AND
COMPREHENSIVE PLAN AMENDMENTS
IMPLEMENTING COMPREHENSIVE PLAN GOAL
105 AND THE WORK PROGRAM MANDA TED BY
RULE 28-20.100, F.A.C. ARE DRAFTED AND
ADOPTED BY THE COUNTY COMMISSION OR
EIGHTEEN MONTHS, WHICHEVER COMES FIRST.
WHEREAS, the Florida Administration Commission in 1996 enacted Rule 28-20.100,
which created the "Work Program" in the 2010 Comprehensive Plan and mandated, among other
things, the preparation of a Carrying Capacity Study for the Florida Keys; and
WHEREAS, Year 6 (July 13, 2002 through July 12, 2003) of the "Work Program",
section C., mandates that the County implement the Carrying Capacity Study by the adoption of
all necessary plan amendments to establish development standards to ensure that new
development does not exceed the carrying capacity of the County's natural environment; and
WHEREAS, the "Work Program", section F. further mandates that the County initiate
and complete a collaborative process for the adoption of Land Development Regulations (LDR)
and Comprehensive Plan amendments to strengthen the protection of terrestrial habitat; and
WHEREAS, the Florida Keys Carrying Capacity Study (FKCCS), completed in
September 2002, provides a scientific basis for limiting further degradation of critical habitat and
sets out guidelines that, inter alia, would direct future development away from "native habitat,"
and into "areas ripe for redevelopment or already disturbed"; and
WHEREAS, Goal 105, "Smart Growth," was adopted by the Board of County
Commissioners in 200 I to address the long-term development of the Florida Keys; and
WHEREAS, the "Smart Growth" program provides a framework for implementing the
mandate of Rule 28-20.100, Florida Administrative Code ("F.A.C.") within the 2010
Comprehensive Plan; and
WHEREAS, Objective 105.2 of the 2010 Comprehensive Plan, pursuant to the Rule 28-
20.100, F.A.C. mandate, directs the County to map and designate land within the Florida Keys
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into three categories - Natural Area, Transition and Sprawl Reduction Area, and Infill Area _
based on the Smart Growth principles set forth therein; and
WHEREAS, the Tier Maps that designate County lands into the above three categories
were drafted based on the requirements and scientific findings of the FKCCS, Rule 28-20.100,
F.A.C., and Goal 105 of the 2010 Comprehensive Plan; and
WHEREAS, the draft Tier Maps were reviewed at public workshops in the upper Keys
on January 21, in the lower Keys on February 6, 2003, and at Planning Commission meetings;
and
WHEREAS, the Planning Commission at a public hearing on May 7, 2003,
recommended to the Board of County Commissioners the adoption of Tier Maps and Interim
Development Regulations that would defer ROGOINROGO allocations within Tier I and Tier II
for a period of at least two years to allow for the completion of necessary amendments to the
Comprehensive Plan and Land Development Regulations to further protect the terrestrial
ecosystem and implement Goal 105 of the Comprehensive Plan; and
WHEREAS, the Board of County Commissioners considered the Planning
Commission's recommendations at a public hearing held on June 18, 2003, to consider adoption
of the proposed Interim Development Regulations and Tier Maps; and
WHEREAS, at the June 18th meeting, the Growth Management Division staff was
directed by the Board of County Commissioners to re-evaluate the proposed ordinance adopting
the Tier Maps and Interim Development Regulations deferring ROGOINROGO allocations; and
WHEREAS, the Board of County Commissioners has scheduled and noticed an
additional public hearing on July 15, 2003 in order to take public input and to consider the
proposed Interim Development Regulations set forth herein;
WHEREAS, Pursuant to the pending ordinance doctrine set forth in Smith v. City of
Clearwater, 383 So. 2d 681 (Fla. 2nd DCA 1980), the Board of County Commissioners hereby
finds that the Interim Development Regulations have been and continue to be pending as of July
15, 2003.
WHEREAS, the maps depicting the tier boundaries are accurate, reflect the best
available data, and are consistent with the FKCCS and Goal 105 of the 20 I 0 Comprehensive
Plan; and
WHEREAS, during the period of the effectiveness of these interim development
regulations the Growth Management staff will take further public input and will undertake a
comprehensive planning process that will refine the permanent Tier designations and the policies
associated therewith; and
WHEREAS, within the boundaries of Tier I are contained all significant upland habitat
of four acres or more identified in the habitat data utilized in the FKCCS, including all high
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quality hammock and pinelands, lands needed to connect isolated patches of existing upland
habitat and provide buffers between habitat areas and development, all CARL lands, publicly-
owned conservation lands, and most lands zoned Conservation, Sparsely Settled, and Native
Area; and
WHEREAS, these lands within Tier I are precisely those significant upland habitats
necessary to sustain protected animal species, called for by the terrestrial module of the FKCCS
and Goal 105 of the 20 I 0 Comprehensive Plan to be protected and restored to mitigate and
prevent further degradation and fragmentation by development; and
WHEREAS, the protection and restoration of this upland habitat, coupled with existing
County regulations protecting sensitive beachlberm and wetlands outside of these upland
habitats, are essential to implementing the terrestrial habitat recommendations of the FKCCS and
Goal 105 of the Comprehensive Plan; and
WHEREAS, Conservation and Natural Areas designated herein are consistent with the
Tier IlNative Area designations that were established pursuant to the planning process described
above and Policy 105.2.1 of the 2010 Comprehensive Plan; and
WHEREAS, the Department of Community Affairs filed a Notice of Violation, Case No.
DCA03-NOV-004, on January 3, 2003, citing eight counts of the County's failure to properly
administer its Habitat Evaluation Index ("H.E.I.") and amend its regulations to more fully protect
low and high hammock habitat; and
WHEREAS, the Growth Management Division staff believes that a more productive and
prudent approach than diverting scarce staff resources in revising the current H.E.1. would be to
move forward in conjunction with implementation of Goal 105 and the FKCCS to revise existing
regulations to manage development in lands designated herein as "Conservation and Natural
Areas" in a comprehensive, but more simplified manner, which is readily understandable to the
average citizen; and
WHEREAS, the interim development regulations set forth herein will allow the Growth
Management Division to develop comprehensive regulations and plan amendments that will
result in a more effective H.E.!. program; and
WHEREAS, the amendments to the Comprehensive Plan and Land Development
Regulations are incomplete to implement the protection of the terrestrial habitat as specified by
the FKCCS by July 13, 2003, the deadline established by the Florida Administrative
Commission in Rule 28-20.100; and
WHEREAS, the continued issuance of ROGO and NROGO allocations based on the
current H.E.1. and permit allocation systems, prior to the completion of needed amendments to
the Comprehensive Plan and Land Development Regulations will result in the loss of valuable
native habitat and may have an irreversible detrimental impact on the County's ability to
implement the Smart Growth policies set forth in Goal 105 of the 20 10 Comprehensive Plan,
Rule 28-20.100, F.A.C., and the FKCCS; and
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WHEREAS, the continued application of current H.E.! regulations by the County does
not satisfactorily address the allegations raised by the Florida Department of Community Affairs,
which may only lead to further appeals by that agency of permits issued by the County within
sensitive hammock areas; and
WHEREAS, in order to make effective Goal 105 of the Comprehensive Plan, Rule 28-
20.100, F.A.C. and to address deficiencies in the existing regulations regarding development in
upland native habitat and hammock areas, it is necessary to enact temporary regulations affecting
ROGO/NROGO allocations and development within low and high hammocks; and
WHEREAS, the purpose and intent of Goal 105 of the 20 I 0 Comprehensive Plan, the
FKCCS, and Rule 28-20.100, F.A.C. are adequately effectuated on Big Pine Key and No Name
Key as a result of the ongoing Habitat Conservation Planning effort and the Community Master
Plan; and
WHEREAS, the County has committed necessary staff and resources to the development
of permanent policies and regulations to implement Goal 105 of the 2010 Comprehensive Plan,
Rule 28-20.100, F.A.C., the terrestrial ecosystem recommendations of the FKCCS, and needed
revisions in regulations affecting native habitat in order to facilitate its diligent and good faith
effort to establish permanent policies and regulations within a reasonable period of time; and
WHEREAS, implementation of Goal 105 of the Comprehensive Plan, Rule 28-20.100,
F.A.C., and the FKCCS involves complex environmental, social, and economic issues, a broad
geographic scope, numerous governmental agencies, and a diversity of stakeholder interests; and
WHEREAS, these Interim Development Regulations serve compelling state and regional
governmental interests and are the minimum necessary to protect the health, safety, and general
welfare of the citizens of Monroe County and effectuate Goal 105 of the Comprehensive Plan,
Rule 28-20.100, F.A.C., and the state-mandated FKCCS; and
WHEREAS, these Interim Development Regulations are necessary to derive the benefits
of permitting democratic discussion and participation by citizens, developers, and property
owners who may be affected by eventual amendments to the Land Development Regulations and
Comprehensive Plan; and
WHEREAS, the implementation of these Interim Development Regulations will be a
demonstration of good faith to the Governor and Cabinet and the Florida Department of
Community Affairs that the County is seriously working towards implementing the FKCCS and
Rule 28-20.1 00 and indicates substantial progress in achievement of the "Work Program" goals;
and
WHEREAS, these Interim Development Regulations provide a temporary resolution to
the issues raised by the Florida Department of Community Affairs in Case No. DCA03-NOV-
004, until the enactment of permanent regulations to implement Goal 105 of the Comprehensive
Plan and meet the requirements of Rule 28-20.100, F.A.C. and FKCCS; and
mcidobocc.doc; ver.#2a
Page 4 of9
WHEREAS, the Board of County Commissioners has considered, inter alia, the
FKCCS, Rule 28-20.100, F.A.C., Goal 105 of the 2010 Comprehensive Plan, and the staff report
titled "Implementing Goal 105 and the Carrying Capacity Study," which describes the basis of
the Smart Growth program and other permanent Comprehensive Plan policies, maps, and Land
Development Regulations that will be developed as appropriate; and
WHEREAS, given the scope of the issues and areas to be addressed by Goal 105 of the
2010 Comprehensive Plan and the FKCCS, the eighteen- to twenty-four-month timeframe is
necessary and reasonable in order to complete a fair and comprehensive planning and public
participation process that results in legally- and scientifically-sound policies and regulations; and
WHEREAS, Chapter 125, F.S., authorizes the Board of County Commissioners to adopt
ordinances to provide standards protecting the health, safety, and welfare of the citizens of
Monroe County; and
WHEREAS, these Interim Development Regulations constitute a valid exercise of the
County's police power and are otherwise consistent with Section 163.3161, et seq., F.S., which,
inter alia, encourages the use of innovative land development regulations to implement the
adopted comprehensive plan; and
WHEREAS, the purpose and intent of these Interim Development Regulations is to
create a system of development rights and land uses that will implement the FKCCS, Rule 28-
20.100, F.A.C., and Goal 105 of the 2010 Comprehensive Plan and ameliorate the economic
impacts on private property owners; and
WHEREAS, in response to concerns raised by the Board of County Commissioners at
its June 18, 2003, public hearing, the Growth Management Division staff with assistance of legal
counsel, has prepared these alternative Interim Development Regulations;
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
Section 1: Pursuant to Policy 105.2.1, Year 2010 Comprehensive Plan, "Conservation and
Natural Areas", designated as "Tier I" in Policy 105.2.1, are hereby designated, the boundaries
of which are described in the maps attached hereto, and are made part of this ordinance.
Section 2: During the period these interim development regulations are in effect, the boundaries
of the Conservation and Natural Areas may be amended by ordinance of the Board of County
Commissioners upon recommendation of a staff Technical Review Committee, which is hereby
authorized and established, and which shall be chaired by the Director of the Growth
Management Division. Amendments to the Conservation and Natural Areas boundaries shall be
based on the considerations and criteria used to originally draft the boundaries of the Tier I areas;
however, this shall not be construed to foreclose changes or additions to the original criteria used
to determine the Tier I areas.
mcidobocc.doc; ver.#2a
Page 5 of9
Section 3: The Technical Review Committee shall consist of the Growth Management Director,
who shall serve as chairperson, Director of Planning and Environmental Resources, County Land
Steward, Executive Director of the Land Authority, and County Biologist. The Technical
Review Committee shall make its recommendations for amending the Conservation and Natural
Areas map based on the considerations and criteria used originally to designate and map the
boundaries of Tier I areas. Proposed amendments to these boundaries may be initiated by the
Director of Planning and Environmental Resources or by submission of a written application to
the Planning and Environmental Resources Department on a form approved by the Department.
During the term of this Interim Development Ordinance, any proposed amendments to the
boundaries of the Conservation and Natural Areas, shall follow a streamline review and approval
process. Proposed amendments will not be reviewed by the Development Review Committee
and Planning Commission. The public hearing for Board of County Commissioner's
consideration of amendments to these boundaries will be advertised at least 15 days prior to the
public hearing. Posting will not be required of any properties, which are the subject of such
amendments.
Section 4: The Board of County Commissioners establishes the interim development regulations
set forth in this Ordinance, which shall remain in full force and effect upon its effective date until
either amendments to the Year 20 I 0 Comprehensive Plan and Land Development Regulations
are drafted and adopted by the County Commissioners to implement the Florida Keys Carrying
Capacity Study and Goal 105 of the 2010 Comprehensive Plan or eighteen months from the date
of the adoption of this Ordinance, whichever comes first. Prior to the eighteen-month sunset
date of this ordinance, the Board of County Commissioners, upon the recommendation of the
Planning Commission, may amend this ordinance to extend its provisions an additional six
months.
Section 5: Any residential (ROGO) or non-residential (NROGO) building permit application
with a ROGOINROGO entry date of July 14,2003 or earlier shall be exempt from these interim
development regulations.
Section 6: Any residential (ROGO) or non-residential (NROGO) building permit application
for development on Big Pine Key or No Name Key shall be exempt from these interim
development regulations.
Section 7: Within the boundaries of the Conservation and Natural Areas, any residential
(ROGO) or non-residential (NROGO) building permit application with an entry date of July 15,
2003, or later shall:
a. Receive an automatic minus evaluation point value of 10 [Group IV -high quality
habitat] under Section 9.5-1 22.3(a)(7) [ROGO] or Section 9.5-124.8
(a)(4)[NROGO], Monroe County Code;
b. Not be eligible to receive positive evaluation points for aggregation of any lots
under Section 9.5-1 22.3(a)(3) [ROGO], Monroe County Code; and,
mcidobocc.doc; ver.#2a
Page 6 of9
c. Be subject to at least the minimum open space ratio provisions of 80 percent
required for high quality hammock under Section 9.5-347 (b), Monroe County
Code, for any area of hammock to be cleared.
Section 8: Outside of the boundaries of the Conservation and Natural Areas, any residential
(ROGO) or non-residential (NROGO) building permit application with an entry date of July 15,
2003, or later shall:
a. Receive a mmus evaluation point value of 5 [Group III-moderate quality
hammock] under Section 9.5-122.3(a)(7) [ROGO] or Section 9.5-
124.8(a)(4)[NROGO], Monroe County Code, if the area to be cleared contains
any hammock; and,
b. Be subject to the minimum open space provisions of 60 percent required for
moderate quality hammock under Section 9.5-347(b), Monroe County Code, for
that area of hammock to be cleared.
Section 9: Any use that does not require either a ROGO or NROGO allocation award, and that
is allowed pursuant to the Monroe County Land Development Regulations and the 20 I 0
Comprehensive Plan, may be continued or established at anytime.
Section 10: All buildable vacant lands within the Conservation and Natural Areas shall be
eligible to qualify for RaGa and NROGO land dedication points under Section 9.5.122.3(a)(5)
and Section 9.5. I 24.8(a)(3), Monroe County Code, effective the date of this ordinance.
Section 11: Pursuant to the pending ordinance doctrine set forth in Smith v. City of
Clearwater, 383 So. 2d 681 (Fla. 2nd DCA 1980), ROGO or NROGO building permit allocation
applications submitted on or after July 15, 2003 shall be accepted but no ROGO or NROGO
allocation awards shall be issued on such applications until after the effective date of this
Ordinance.
Section 12: Pursuant to the pending ordinance doctrine, persons submitting a ROGO or
NROGO building permit application on or after July 15, 2003 are hereby notified that no vested
rights, legal entitlements, or equitable estoppel shall thereafter accrue by reason of their
submission prior to the effective day of adoption of this Ordinance or issuance of notice by the
Department of Community Affairs or Administration Commission finding this Ordinance in
compliance with Chapter 163 and 380, Florida Statutes.
Section 13: Pursuant to the pending ordinance doctrine, all ROGO and NROGO applications
submitted on or after July 15, 2003 will be decided pursuant to the standards and provisions set
forth in these Interim Development Regulations or any permanent ordinance or regulations
enacted upon the termination of these Interim Development Regulations, upon their effective
date.
Section 14: The County Administrator is directed to have the Growth Management Division
begin immediately preparing the draft text and map amendments and other supporting studies in
cooperation with the Planning Commission in order to effectuate the provisions of Goal 105 of
mcidobocc.doc; ver.#2a
Page 7of9
the 2010 Comprehensive Plan, Rule 28-20.100, F.A.C., and the FKCCS, within the timeframes
set forth herein.
Section 15: In preparing these amendments, the County Administrator is directed to focus the
Growth Management Division's efforts in the following important areas: I) preparation of
substantive revisions to simplify and streamline the County's permit allocation system and
environmental regulations and make them more transparent and understandable to the public; 2)
coordination of the preparation of these amendments and regulations with appropriate legal and
financial experts to ensure the permit allocation and land development system is legally
defensible and sound fiscally; 3) identification of plan and regulatory amendments and strategies
to ensure that the goals and objectives of the FKCCS and the 2010 Comprehensive Plan are
properly implemented; and 4) that any permanent regulations adequately protect and balance
other important objectives of the 2010 Comprehensive Plan, including, for example, affordable
housing needs.
Section 16: If any section, subsection, sentence, clause, item, change or provision of this
ordinance is held invalid, the remainder shall not be affected by such invalidity.
Section 17: All ordinances or parts of ordinances in conflict with this ordinance are hereby
repealed to the extent of said conflict.
Section 18: The ordinance is hereby transmitted to the Florida Department of Community
Affairs pursuant to Chapters 163 and 380, Florida Statutes.
Section 19: 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 finding this Ordinance in compliance with Chapter 163
and 380, Florida Statutes.
Section 20: This Ordinance shall stand repealed as of II :59 p.m. on the five hundred forty
seventh day after the adoption of this Ordinance, unless repealed sooner or extended pursuant to
the terms set forth herein.
[THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK.]
mcidobocc.doc; ver.#2a
Page 8 of9
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,;
Florida at a regular meeting held on the _ day of . 2003. :
Mayor Dixie Spehar
Mayor Pro Tem Murray Nelson
Commissioner Charles "Sonny" McCoy
Commissioner George Neugent
Commissioner David Rice
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
BY
;.
.
I
Mayor Dixie Spehar
(SEAL)
ATIEST: DANNY L. KOUiAGE, CLERK
Deputy Clerk
Approved as to form and legal sufficiency:
E.Ls:l~ ~
lucidobooc.doc; ver.#22
Page9of9
ATTACHMENT TO
ORDINANCE NO. -2003
MONROE COUNTY
CONSERVATION AND NATURAL AREAS (TIER I) MAPS
Monroe County
Conservation and Natural Areas
MM 4 to 8
.
_ Conservation and N
Natural Areas A
_ Military land
-U5l
. Mile Marker 0 0.25 0.5
.
Miles
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"li,tcntrfl<;81i<minfmm"li(,n
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Monroe County
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MM 8 to 12
,
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_ MiI~ary Land
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rh~ d"111 nJn"tn~d h~mn i~ ;!1"o'nulI"r ~n,J m~y
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MM 24 to 30
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Monroe County .-
Conservation and Natural Areas
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>>
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.
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MM 35 to 41
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Monroe County
Conservation and Natural Areas
MM 60 to 63
~
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N
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.
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Monroe County
Conservation and Natural Areas
MM 65 to 71
_Conservation and
Natural Areas
_ Milttary Land
-US1
· Mile Marker
N
A
o
0.5
n,;~ "'." ,. for M,mm,' Cuunty Gr"....tl1 M......g~m..nl n,,,,",UTl
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11<..1 ""l"n.wl~ d"flill h,:,",~. "..,,-0:1.> r"..d~. r;tthl of Wily..,
or idelllif",.twnillfonnalk,n
Miles
I'ICPil!l'J H.\ r..:1{ [Jale -'If!);
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Conservation and Natural Areas
MM91to93
. Mile Marker
N
A
0 0.2 0.4
.
Miles
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': , ty
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11<>1 .n~~aldy d"p;';l OO\l~, p;an:d., fua<h.. "llhl "tway.,
or i,xntir",..tioflillrurmalion
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Monroe County
Conservation and Natural Areas
MM 93 to 95
_Conservation and
Natural Areas
_ Military Land
-US1
. Mile Marker
N
A
0 0.2 0.4
.
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~w
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(Jridcnljl1~ltil:millr.>IIfl.lIl"",
l'I''P:lh'd 1\,\ KH [);Ile
Monroe County
Conservation and Natural Areas
MM 95 to 98
, N
A-
0 0.2 0.4
.
Miles
I
.
,
_Conservation and
Natural Areas
_ Military Land
-US1
. Mile Marker
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or ilknliC...,.ti"nillf"nn.tiun
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Conservation and Natural Areas
MM 98 to 100
~
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Natural Areas
_ Military Land
-U51
. Mile Marker
N
A
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. '. ty
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.
"
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_ Military Land
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o
0.25
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.
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(lli<knliflo:4tilm;llf,.nl1lltiun
l'iqldll'd 1\.\ KI{ I),lll'
Monroe County
Conservation and Natural Areas
MM 103 to 106
_ Conservation and
Natural Areas
_ Milnary Land
-U51
. Mile Marker
N
A
0 0.25
0.5
Miles .
- -
..<:-), :;~_:',,~,:.-~: (..,~>
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l'lqJllul IiI "I{ U;i1~' -:"1(1;
~^C "" ty
Plann~^~' ,~ " omental
Reso~ .",., ent
Monroe County
Conservation and Natural Areas
MM 105 to 108
_Conservation and
Natural Areas
_ Military Land
-US1
. Mile Marker
N
A-
0 0.25 0.5
.
Miles
Growth Mana~ernent Division
2798 Overseas Hizhway
Suite 410
Marathon, l10rida 33050
Voice: (305) 289 2500
FAX: (305) 2892536
County of Monroe
Board of County Commissioners
Mayor Wilhelmina Harvey, Dist. 1
Mayor Pro Tern Shirley Freeman, Dist. 3
Commissioner George Neugent, Dist. 2
Commissioner Mary Kay Reich, Dist. 5
Commissioner Nora Williams, Dist. 4
MEMORANDUM
TO:
Board of County Commissioners
FROM:
Timothy J. McGarry, AICP/Y1!
Director of Growth ManalY:Rffrll
July 10,2003
DATE:
SUBJECT:
Supplemental Guidance on Alternative Interim
Development Ordinances (Agenda Item: Y -3)
Overview
For its July 15, 2003, public hearing on an Interim Development Ordinance establishing a
moratorium on ROGO/NROGO allocations in Tiers I and IT, the staff prepared an alternative
Interim Development Ordinance as part of the agenda package for consideration by the Board that
would institute temporary revisions to the ROGOINROGO rather than rely on a moratorium. As
detailed in the staff memorandum submitted with the alternative Interim Development Ordinance,
a moratorium or some temporary regulations are recommended by the staff at this time to:
o Further protect significant upland habitat during the time required by the staff to
draft necessary amendments to the Comprehensive Plan and Land Development
Regulations to implement Goal 105 of the Comprehensive Plan and the
recommendations of the terrestrial module of the Florida Keys Carrying Capacity
Study.
o Temporarily resolve issues identified in the DCA's Notice of Violation alleging the
County's failure to property administer regulations governing hammock.
o Expand the total acreage and number of lots eligible for ROGO/NROGO
dedication.
o Demonstrate to DCA and Governor and Cabinet, the County's commitment to
implement the appropriate recommendations of the Florida Carrying Capacity
Study.
J :\DOCUMENT\SGT System\supplemental.doc
Purpose
This memorandum is intended to provide the Board of County Commissioners with a roadmap for
considering the proposed Interim Development Ordinance (moratorium) contained in the June
agenda package or the one sent to the Board in the July agenda package. [For the convenience of
the Board, both ordinances and Growth Management's special legal counsel's review of moratoria
and interim development ordinances have been enclosed with this memorandum.] Hopefully, it
will serve to assist the Board in reaching a decision on whether or not to support either one of the
proposed ordinances with or without revisions.
Although the staff recommends in its July 7,2003, that the Board consider the alternative Interim
Development Ordinance that does not rely on a moratorium, the staff believes that the complexity
of issues involved calls for the Board reviewing each alternative ordinance to determine if it can
support the particular ordinance as proposed or with revisions. The staff has prepared the enclosed
matrix, which illustrates the substantive differences between the two ordinances.
Steps in Consideration of Alternatives
The staff suggests the following decision steps for the Board in considering these alternative
ordinances, including a third (no ordinance) alternative:
o Alternative I-Interim Development Ordinance (Moratorium Version)
a. The BOCC should decide whether or not it can support a moratorium as
proposed in the ordinance. If the BOCC can't support a moratorium, even
if with substantively revised ordinance, then the BOCC should move
forward to discuss the Alternative #2- Alternative Interim Development
Ordinance (Non-moratorium).
b. If the BOCC decides to consider a moratorium, it needs to determine the
scope of the moratorium as proposed in the ordinance (Tier I and II) or
something less expansive, such as only Tier I. [The staff would recommend
that Tier I for the scope of the moratorium as it clearly contains all
significant upland habitat called for protection under the Florida Keys
Carrying Capacity, including most protected species requiring upland
habitat. ]
c. Once the scope of the moratorium is agreed upon with appropriate revisions
to the proposed Interim Development Ordinance, the staff would suggest
several changes to the proposed Interim Development Ordinance such as:
1) Revise Section I to delete adoption of Tier Maps (Section I)
and revise to adopt the boundaries of the moratorium (Tier I
and IT or just Tier I.)
J:\DOCUMENT\SGT System\supplemental.doc
2) Revise Section 1 to incorporate language from Sections 2 and
3 of the Alternative Interim Development Ordinance to
incorporate procedures for amendments to map boundaries.
3) Revise Section 3 to extend the entry date for ROGOINROGO
applications exempt from moratorium from April 13, 2003,
to July 14, 2003.
4) Insert Section 6 from proposed alternative Interim
Development Ordinance to exempt Big Pine Key and No
Name Key from moratorium.
5) Revise Section 6, if necessary, to allow for dedication of lots
and parcels for ROGOINROGO only within areas identified
for moratorium.
6) Replace Section 7 with language from Section 15 of the
proposed alternative Interim Development Ordinance.
d. If the BOCC is satisfied with the proposed Interim Development Ordinance
as revised, it may take action to adopt the ordinance at this meeting.
Alternative 2-Alternative Interim Development Ordinance (Non-Moratorium)
a. The Board should determine whether or not it wants to proceed with an
ordinance that temporarily modifies ROGO scoring. If the Board is unable
to agree on pursuing this approach, it should move to consider the resolution
proposed as Alternative #3.
b. The Board should reach agreement on the scope of the proposed revisions to
ROGOINROGO scoring by reviewing Sections 7 and 8 and making any
revisions it deems necessary.
b. Once the Board is satisfied with the draft ordinance, it should direct staff to
advertise the new ordinance for public hearing on August 20, 2003, 5:00
p.m., in Key Largo.
Alternative 3-No Interim Development Ordinance (Resolution Only)
a. If the Board can not support either Alternative #1 or #2 or any combination
of these two proposed Interim Development Ordinances, the staff suggests
the Board: (1) direct the staff to prepare for its consideration at its next
meeting, a resolution adoptitigTier I mapped areas as a public lands
acquisition area and designating parcels and lots within these areas as
eligible for dedication under ROGOINROGO and; (2) direct staff to prepare
J:\DOCUMENnSGT System\supplemental.doc
amendments to the Land Development Regulations to disallow aggregation
of lots within designated public lands acquisition areas. [Although this
alternative does not meet the needs identified by the staff for a moratorium
or temporary regulations, it does represent a first step in targeting of the
lands needed for acquisition to protect the significant upland habitat,
expands the lands eligible for donation, and provides a basis for
amendments to Land Development Regulations for revising aggregation
rules. ]
Enclosures
Matrix-Alternative Interim Development Ordinances Analysis
Interim Development Ordinance (Moratorium)
Alternative Interim Development Ordinance (Non-moratorium)
Legal review by firm of Freilich, Leitner & Carlisle
cc: Danny Kolhage, Clerk of Circuit Court
James L. Roberts, County Administrator
John R. Collins, County Attorney
J:\DOCUMENT\SGT System\supplemental.doc
Preserving Monroe County's
Terrestrial Habitat
Proposed
Interim Development Ordinance Alternatives Analysis
July 10, 2003
Alternative 1 Alternative 2
Moratorium Tier I and II Neg. Points Tier I and
Hammocks in Tier II/III
Protects terrestrial habitat Yes, stops development Discourages development
by the award of negative
points in habitat areas
Implementation Ease No applications accepted in -10 points in Tier I,
Tier I and Tier II -5 points in Tier II and III if
hammock
Stops aggregation points in Yes Yes
Tier I
Increase available lots for All lots in Tier I and Tier II Lots in Tier I only
dedication
Increase open space and N/A - No clearing for Tier I - 80% open space
reduce clearing development in Tier I and II Hammocks Tier II/III - 60%
open space
July 13 - deadline in Yes Highly likely
Comp Plan
Abate Notice of Violation Yes Yes
(NOV)
INTERIM DEVELOPMENT ORDINANCE
DESIGNATING TIER MAp BOUNDARIES AND
DEFERRING ROGO AND NROGO ALLOCATIONS IN
TIER I AND TIER II AREAS
ORDINANCE NO.
AN ORDINANCE BY THE MONROE COUNTY
BOARD OF COUNTY COMMISSIONERS
DESIGNATING TIER MAPS AND ADOPTING
INTERIM DEVELOPMENT REGULATIONS
DEFERRING ROGO AND NROGO ALLOCATIONS IN
TIER I AND TIER IT AREAS UNTIL LAND
DEVELOPMENT REGULATIONS AND
COMPREHENSIVE PLAN AMENDMENTS
IMPLEMENTING THE WORK PROGRAM
MANDATED BY RULE 28-20.100, F.A.C. ARE
DRAFTED AND ADOPTED BY THE COUNTY
COMMISSION OR EIGHTEEN MONTHS,
WHICHEVER COMES FIRST.
WHEREAS, the Florida Administrative Commission in 1996 enacted Rule 28-20.100,
which created the "Work Program" in the 2010 Comprehensive Plan and mandated, among other
things, the preparation of a Carrying Capacity Study for the Florida Keys; and
WHEREAS, Year 6 (July 13, 2002 through July 12, 2003) of the "Work Program,
section C., mandates that the County implement the Carrying Capacity Study by the adoption of
all necessary plan amendments to establish development standards to ensure that new
development does not exceed the carrying capacity of the County's natural environment; and
WHEREAS, the "Work Program", section F. mandates that the County initiate and
complete a collaborative process for the adoption of Land Development Regulations (LDR) and
Comprehensive Plan amendments to strengthen the protection of terrestrial habitat; and
_ WHEREAS, the Florida Keys Carrying Capacity Study (FKCCS), completed in
September 2002, sets out guidelines that, inter alia, would direct future development away from
"native habitat," and into "areas ripe for redevelopment or already disturbed"; and
WHEREAS, Goal 105, "Smart Growth," was adopted by the Board of County
Commissioners in 2001 to implement the mandate of Rule 28-20.100, F.A.C. and to provide a
framework within the 2010 Comprehensive Plan to implement the FKCCS; and
WHEREAS, Objective 105.2 of the 20 I 0 Comprehensive Plan, which implements Rule
28-20.100, F.A.C., directs the County to map and designate land within the Florida Keys into
three categories - Natural Area, Transition and Sprawl Reduction area, and Infill Area, based on
the Smart Growth principles set forth therein; and
WHEREAS, the Tier Maps were drafted based on the requirements and scientific
fmdings of the FKCCS, Rule 28-20.100, F.A.C., and Goal 105 of the 2010 Comprehensive Plan;
and;
FLC doc.#57859/90355.009
WHEREAS, the draft Tier Maps were reviewed at public workshops in the upper Keys
on January 21, in the lower Keys on February 6, 2003, and at Planning Commission meetings;
and
WHEREAS, revisions have been made to the draft Tier Maps based on public input,
further analysis, and site investigations; and
WHEREAS, Tiers I and II include those lands of critical environmental sensitivity and
those transitional lands that are critical to the County's ability to implement the Smart Growth
policies set forth in Goal 105 of the 2010 Comprehensive Plan and the FKCCS; and
WHEREAS, Tier III includes those lands already substantially developed and that are
most appropriate for continued redevelopment and infill as specified in Goal 105 of the 20 I 0
Comprehensive Plan and the FKCCS; and
WHEREAS, the projected number of ROGO and NROGO allocations that will continue
to be issued in Tier III will maintain a sustainable environment and will be consistent in number
and location with Goal 105 of the 2010 Comprehensive Plan and the FKCCS; and
WHEREAS, continued issuance of ROGO and NROGO allocations within Tiers I and II
prior to the completion of a comprehensive planning process will result in the loss of valuable
native habitat and may have an irreversible detrimental impact on the County's ability to
implement the Smart Growth policies set forth in Goal 105 of the 20 I 0 Comprehensive Plan,
Rule 28-20.100, F.A.C., and the FKCCS; and
WHEREAS, in order to make effective Goal 105 of the 2010 Comprehensive Plan, Rule
28-20.100, F.A.C., and the FKCCS, it is necessary to halt temporarily works of development as
provided herein which might otherwise absorb the entire capacity of the County for further
development or direct it out of harmony with the Comprehensive Plan and the FKCCS; and
WHEREAS, the County has committed necessary staff and resources to the development
of permanent policies and regulations to implement Goal 105 of the 2010 Comprehensive Plan,
Rule 28-20.100, F.A.C., and the FKCCS, in order to facilitate its diligent and good faith effort to
establish permanent policies and regulations within a reasonable period of time; and
WHEREAS, implementation of Goal 105 of the Comprehensive Plan, Rule 28-20.100,
F.A.C., and the FKCCS involves complex environmental, social, and economic issues, a broad
geographic scope, numerous governmental agencies, and a diversity of stakeholder interests; and
WHEREAS, these Interim Development Regulations serve compelling state and regional
governmental interests and are the minimum necessary to protect the health, safety, and general
welfare of the citizens of Monroe County and effectuate Goal 105 of the Comprehensive Plan,
Rule 28-20.100, F.A.C., and the state-mandated FKCCS; and
WHEREAS, these Interim Development Regulations are necessary to derive the benefits
of permitting democratic discussion and participation by citizens, developers, and property
FLC doc.#57859/90355.009
2
owners who may be affected by eventual amendments to the Land Development Regulations and
Comprehensive Plan; and
WHEREAS, the Board of County Commissioners has considered, inter alia, the
FKCCS, Rule 28-20.100, F.A.C., Goal 105 of the 2010 Comprehensive Plan, and the staff report
titled "Implementing Goal 105 and the Carrying Capacity Study," which describes the basis of
the Smart Growth program to be implemented by these Interim Development Regulations and
other permanent Comprehensive Plan policies, maps, and Land Development Regulations that
will be developed as appropriate; and
WHEREAS, given the scope of the issues and areas to be addressed by Goal 105 of the
2010 Comprehensive Plan and the FKCCS, the eighteen- to twenty-four-month tirneframe is
necessary and reasonable in order to complete a fair and comprehensive planning and public
participation process that results in legally- and scientifically-sound policies and regulations; and
WHEREAS, the LDR and Comprehensive Plan amendments to implement the protection
of the terrestrial ecosystem requirements in Rule 28-20.100 are incomplete and will not be
prepared and adopted by the July 13,2003 deadline set forth therein; and
WHEREAS, the Planning Commission at a regular meeting on March 12,2003, directed
staff to move forward and prepare a recommendation to the Board of County Commissioners for
a deferral of ROGO and NROGO allocations, while staff prepares amendments to the 20 I 0
Comprehensive Plan and the LDRs to further protect the terrestrial ecosystem; and
WHEREAS, upon the direction by the Planning Commission, Growth Management
Division staff immediately undertook the development of these Interim Regulations, a draft of
which was presented to and discussed by the Planning Commission on April 9, 2003; and
WHEREAS, at its regular meetings in March, April, and May, 2003 the Board of County
Commissioners was updated by County staff with regard to the status of these Interim
Regulations; and
WHEREAS, this temporary deferment will be a demonstration of good faith to the
Governor and Cabinet that the county is seriously working towards implementing the FKCCS
and Rule 28-20.100, F.A.C. and should be considered in substantial compliance in meeting the
Work Program goals; and
WHEREAS, Chapter 125, F.S., authorizes the Board of County Commissioners to adopt
ordinances to provide standards protecting the health, safety, and welfare of the citizens of
Monroe County; and
WHEREAS, these Interim Development Regulations constitute a valid exercise of the
County's police power and are otherwise consistent with Section 163.3161, 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
FLC doc.#57859/90355.009
3
WHEREAS, the purpose and intent of these Interim Development Regulations is to
create a system of development rights and land uses that will implement the FKCCS, Rule 28-
20.100, F.A.C., and Goal 105 of the 2010 Comprehensive Plan and ameliorate the economic
impacts on private property owners; and
WHEREAS, the Planning Commission reviewed the Interim Development Ordinance in
public hearing on May 7, 2003, and recommends approval to the Board of County
Commissioners;
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
Section 1: Pursuant to Policy 105.2.1, Year 2010 Comprehensive Plan, Natural Areas (Tier I),
Transition Areas (Tier II), and Infill Areas (Tier III) are hereby designated, the boundaries,
which are described in the following maps, attached hereto, are made part of this ordinance.
During the period these interim development regulations are in effect, boundaries may be
amended by ordinance of the Board of County Commissioners upon the recommendation of the
Planning Commission based upon data and considerations used originally to draft the Tier Maps.
This shall not be construed to foreclose changes or additions to the original criteria used to
determine the Tiers.
Section 2: Pursuant to its lawfully delegated authorities and the pending legislation doctrine set
forth in Smith vs. City of Clearwater 383 So. 2d 681 (FL, 2nd DCA, 1980) the Board of County
Commissioners establishes the interim development regulations set forth in this Ordinance,
which shall remain in full force and effect until either amendments to the Year 20 10
Comprehensive Plan and Land Development Regulations are drafted and adopted by the County
Commissioners to implement the Florida Keys Carrying Capacity Study and Goal 105 of the
2010 Comprehensive Plan or eighteen months from the date of the adoption of this Ordinance,
whichever comes first. Prior to the eighteen-month sunset date of this ordinance, the Board of
County Commissioners, upon the recommendation of the Planning Commission, may amend this
ordinance to extend its provisions an additional six months.
Section 3: No Rate of Growth Ordinance allocation awards shall be made on any applications
for either residential (ROGO) or non residential (NROGO) development within Tier I or Tier II
areas with a ROGO/NROGO entry date of April 13, 2003 or later.
Section 4: As of the effective date of this Ordinance, no further ROGO or NROGO allocation
applications within Tier I and Tier II areas shall be accepted or processed by the Growth
Management Division.
Section 5: Any use that does not require either a ROGO or NROGO allocation award, and that
is allowed pursuant to the Monroe County Land Development Regulations and the 20 I 0
Comprehensive Plan, may be continued or established within Tiers I, II, and III at anytime.
FLC doc.#57859/90355.009
4
Section 6: All buildable vacant lands within Tier I and Tier II areas shall be eligible to qualify
for ROGO and NROGO land dedication points under Section 9.5.122.3(a)(5) and Section
9.5. 124.8(a)(3), Monroe County Code, effective the date of this ordinance.
Section 7: The County Administrator is directed to have the Growth Management Division to
begin immediately preparing the draft text and map amendments and other supporting studies in
cooperation with the Planning Commission in order to effectuate the provisions of Goal 105 of
the 2010 Comprehensive Plan, Rule 28-20.100, F.A.C., and the FKCCS within the timefrarnes
set forth herein.
Section 8: If any section, subsection, sentence, clause, item, change or provision of this
ordinance is held invalid, the remainder shall not be affected by such invalidity.
Section 9: All ordinances or parts of ordinances in conflict with this ordinance are hereby
repealed to the extent of said conflict.
Section 10: The ordinance is hereby transmitted to the Florida Department of Community
Affairs pursuant to Chapters 163 and 380, Florida Statutes.
Section 11: 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 fmding the amendment in compliance with Chapter 163
and 380, Florida Statutes.
Section 12: This Ordinance shall stand repealed as of 11 :59 p.m. on the five hundred forty
seventh day after the adoption of this Ordinance, unless repealed sooner or extended pursuant to
the terms set forth herein.
[THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK.]
FLC doc.#S78S9/903SS.009
5
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida at a regular meeting held on the day of , 2003.
Mayor Dixie Spehar
Mayor Pro Tern Murray Nelson
Commissioner Charles "Sonny" McCoy
Commissioner George Neugent
Commissioner David Rice
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
BY
Mayor Dixie Spehar
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
Deputy Clerk
Approved as to form and legal sufficiency:
'2- ~ ~
E. Tyson smi~.
FLC doc.#57859/90355.009
6
ALTERNATIVE
INTERIM DEVELOPMENT ORDINANCE
DESIGNATING CONSERVATION AND NATURAL AREA
BOUNDARIES (TIER I) AND
REVISING SCORING UNDER ROGOINROGO PERMIT
ALLOCATION SYSTEMS IN TIER I AREAS AND
OTHER LANDS WITH HAMMOCK OUTSIDE OF TIER I AREA
ORDINANCE NO.
AN ORDINANCE BY THE MONROE COUNTY
BOARD OF COUNTY COMMISSIONERS
DESIGNATING CONSERVATION AND NATURAL
AREAS AND ADOPTING INTERIM DEVELOPMENT
REGULATIONS THAT REVISE SCORING UNDER
THE COUNTY'S ROGO AND NROGO PERMIT
ALLOCATION SYSTEMS UNTIL NECESSARY
LAND DEVELOPMENT REGULATIONS AND
COMPREHENSIVE PLAN AMENDMENTS
IMPLEMENTING COMPREHENSIVE PLAN GOAL
105 AND THE WORK PROGRAM MANDATED BY
RULE 28-20.100, F .A.C. ARE DRAFTED AND
ADOPTED BY THE COUNTY COMMISSION OR
EIGHTEEN MONTHS, WHICHEVER COMES FIRST.
WHEREAS, the Florida Administration Commission in 1996 enacted Rule 28-20.100,
which created the "Work Program" in the 2010 Comprehensive Plan and mandated, among other
things, the preparation of a Carrying Capacity Study for the Florida Keys; and
WHEREAS, Year 6 (July 13, 2002 through July 12, 2003) of the "Work Program",
section c., mandates that the County implement the Carrying Capacity Study by the adoption of
all necessary plan amendments to establish development standards to ensure that new
development does not exceed the carrying capacity of the County's natural environment; and
WHEREAS, the "Work Program", section F. further mandates that the County initiate
and complete a collaborative process for the adoption of Land Development Regulations (LDR)
and Comprehensive Plan amendments to strengthen the protection of terrestrial habitat; and
WHEREAS, the Florida Keys Carrying Capacity Study (FKCCS), completed in
September 2002, provides a scientific basis for limiting further degradation of critical habitat and
sets out guidelines that, inter alia, would direct future development away from "native habitat,"
and into "areas ripe for redevelopment or already disturbed"; and
WHEREAS, Goal 105, "Smart Growth," was adopted by the Board of County
Commissioners in 2001 to address the long-term development of the Florida Keys; and
WHEREAS, the "Smart Growth" program provides a framework for implementing the
mandate of Rule 28-20.100, Florida Administrative Code ("F.A.C.") within the 2010
Comprehensive Plan; and
WHEREAS, Objective 105.2 of the 2010 Comprehensive Plan, pursuant to the Rule 28-
20.100, F.A.C. mandate, directs the County to map and designate land within the Florida Keys
mcidobocc.doc;ver.#2a
Page 10f9
into three categories - Natural Area, Transition and Sprawl Reduction Area, and Infill Area -
based on the Smart Growth principles set forth therein; and
WHEREAS, the Tier Maps that designate County lands into the above three categories
were drafted based on the requirements and scientific findings of the FKCCS, Rule 28-20.100,
F.A.C., and Goal 105 ofthe 2010 Comprehensive Plan; and
WHEREAS, the draft Tier Maps were reviewed at public workshops in the upper Keys
on January 21, in the lower Keys on February 6, 2003, and at Planning Commission meetings;
and
WHEREAS, the Planning Commission at a public hearing on May 7, 2003,
recommended to the Board of County Commissioners the adoption of Tier Maps and Interim
Development Regulations that would defer ROGO/NROGO allocations within Tier I and Tier II
for a period of at least two years to allow for the completion of necessary amendments to the
Comprehensive Plan and Land Development Regulations to further protect the terrestrial
ecosystem and implement Goal 105 of the Comprehensive Plan; and
WHEREAS, the Board of County Commissioners considered the Planning
Commission's recommendations at a public hearing held on June 18,2003, to consider adoption
of the proposed Interim Development Regulations and Tier Maps; and
WHEREAS, at the June 18th meeting, the Growth Management Division staff was
directed by the Board of County Commissioners to re-evaluate the proposed ordinance adopting
the Tier Maps and Interim Development Regulations deferring ROGO/NROGO allocations; and
WHEREAS, the Board of County Commissioners has scheduled and noticed an
additional public hearing on July 15, 2003 in order to take public input and to consider the
proposed Interim Development Regulations set forth herein;
WHEREAS, Pursuant to the pending ordinance doctrine set forth in Smith v. City of
Clearwater, 383 So. 2d 681 (Fla. 2nd DCA 1980), the Board of County Commissioners hereby
finds that the Interim Development Regulations have been and continue to be pending as of July
15,2003.
WHEREAS, the maps depicting the tier boundaries are accurate, reflect the best
available data, and are consistent with the FKCCS and Goal 105 of the 2010 Comprehensive
Plan; and
WHEREAS, during the period of the effectiveness of these interim development
regulations the Growth Management staff will take further public input and will undertake a
comprehensive planning process that will refine the permanent Tier designations and the policies
associated therewith; and
WHEREAS, within the boundaries of Tier I are contained all significant upland habitat
of four acres or more identified in the habitat data utilized in the FKCCS, including all high
mcidobocc.doc; ver.#2a
Page 2 of 9
quality hammock and pinelands, lands needed to connect isolated patches of existing upland
habitat and provide buffers between habitat areas and development, all CARL lands, publicly-
owned conservation lands, and most lands zoned Conservation, Sparsely Settled, and Native
Area; and
WHEREAS, these lands within Tier I are precisely those significant upland habitats
necessary to sustain protected animal species, called for by the terrestrial module of the FKCCS
and Goal 105 of the 2010 Comprehensive Plan to be protected and restored to mitigate and
prevent further degradation and fragmentation by development; and
WHEREAS, the protection and restoration of this upland habitat, coupled with existing
County regulations protecting sensitive beach/berm and wetlands outside of these upland
habitats, are essential to implementing the terrestrial habitat recommendations of the FKCCS and
Goal 105 of the Comprehensive Plan; and
WHEREAS, Conservation and Natural Areas designated herein are consistent with the
Tier l/Native Area designations that were established pursuant to the planning process described
above and Policy 105.2.1 of the 2010 Comprehensive Plan; and
WHEREAS, the Department of Community Affairs filed a Notice of Violation, Case No.
DCA03-NOV-004, on January 3, 2003, citing eight counts of the County's failure to properly
administer its Habitat Evaluation Index ("H.E.I.") and amend its regulations to more fully protect
low and high hammock habitat; and
WHEREAS, the Growth Management Division staff believes that a more productive and
prudent approach than diverting scarce staff resources in revising the current H.E.I. would be to
move forward in conjunction with implementation of Goal 105 and the FKCCS to revise existing
regulations to manage development in lands designated herein as "Conservation and Natural
Areas" in a comprehensive, but more simplified manner, which is readily understandable to the
average citizen; and
WHEREAS, the interim development regulations set forth herein will allow the Growth
Management Division to develop comprehensive regulations and plan amendments that will
result in a more effective H.E.!. program; and
WHEREAS, the amendments to the Comprehensive Plan and Land Development
Regulations are incomplete to implement the protection of the terrestrial habitat as specified by
the FKCCS by July 13, 2003, the deadline established by the Florida Administrative
Commission in Rule 28-20.100; and
WHEREAS, the continued issuance of ROGO and NROGO allocations based on the
current H.E.I. and permit allocation systems, prior to the completion of needed amendments to
the Comprehensive Plan and Land Development Regulations will result in the loss of valuable
native habitat and may have an irreversible detrimental impact on the County's ability to
implement the Smart Growth policies set forth in Goal 105 of the 2010 Comprehensive Plan,
Rule 28-20.100, F .A.C., and the FKCCS; and
mcidobocc.doc; ver.#2a
Page 3 of9
WHEREAS, the continued application of current H.E.! regulations by the County does
not satisfactorily address the allegations raised by the Florida Department of Community Affairs,
which may only lead to further appeals by that agency of permits issued by the County within
sensitive hammock areas; and
WHEREAS, in order to make effective Goal 105 of the Comprehensive Plan, Rule 28-
20.100, F.A.C. and to address deficiencies in the existing regulations regarding development in
upland native habitat and hammock areas, it is necessary to enact temporary regulations affecting
ROGO/NROGO allocations and development within low and high hammocks; and
WHEREAS, the purpose and intent of Goal 105 of the 2010 Comprehensive Plan, the
FKCCS, and Rule 28-20.100, F .A.C. are adequately effectuated on Big Pine Key and No Name
Key as a result of the ongoing Habitat Conservation Planning effort and the Community Master
Plan; and
WHEREAS, the County has committed necessary staff and resources to the development
of permanent policies and regulations to implement Goal 105 of the 2010 Comprehensive Plan,
Rule 28-20.100, F.A.C., the terrestrial ecosystem recommendations of the FKCCS, and needed
revisions in regulations affecting native habitat in order to facilitate its diligent and good faith
effort to establish permanent policies and regulations within a reasonable period of time; and
WHEREAS, implementation of Goal 105 of the Comprehensive Plan, Rule 28-20.100,
F .A.C., and the FKCCS involves complex environmental, social, and economic issues, a broad
geographic scope, numerous governmental agencies, and a diversity of stakeholder interests; and
WHEREAS, these Interim Development Regulations serve compelling state and regional
governmental interests and are the minimum necessary to protect the health, safety, and general
welfare of the citizens of Monroe County and effectuate Goal 105 of the Comprehensive Plan,
Rule 28-20.100, F .A.C., and the state-mandated FKCCS; and
WHEREAS, these Interim Development Regulations are necessary to derive the benefits
of permitting democratic discussion and participation by citizens, developers, and property
owners who may be affected by eventual amendments to the Land Development Regulations and
Comprehensive Plan; and
WHEREAS, the implementation of these Interim Development Regulations will be a
demonstration of good faith to the Governor and Cabinet and the Florida Department of
Community Affairs that the County is seriously working towards implementing the FKCCS and
Rule 28-20.100 and indicates substantial progress in achievement of the "Work Program" goals;
and
WHEREAS, these Interim Development Regulations provide a temporary resolution to
the issues raised by the Florida Department of Community Affairs in Case No. DCA03-NOV-
004, until the enactment of permanent regulations to implement Goal 105 of the Comprehensive
Plan and meet the requirements of Rule 28-20.100, F.A.C. and FKCCS; and
mcidobocc.doc; ver.#2a
Page 4 of9
WHEREAS, the Board of County Commissioners has considered, inter alia, the
FKCCS, Rule 28-20.100, F.A.C., Goal 105 of the 2010 Comprehensive Plan, and the staff report
titled "Implementing Goal 105 and the Carrying Capacity Study," which describes the basis of
the Smart Growth program and other permanent Comprehensive Plan policies, maps, and Land
Development Regulations that will be developed as appropriate; and
WHEREAS, given the scope of the issues and areas to be addressed by Goal 105 of the
2010 Comprehensive Plan and the FKccS, the eighteen- to twenty-four-month timeframe is
necessary and reasonable in order to complete a fair and comprehensive planning and public
participation process that results in legally- and scientifically-sound policies and regulations; and
WHEREAS, Chapter 125, F.S., authorizes the Board of County Commissioners to adopt
ordinances to provide standards protecting the health, safety, and welfare of the citizens of
Monroe County; and
WHEREAS, these Interim Development Regulations constitute a valid exercise of the
County's police power and are otherwise consistent with Section 163.3161, et seq., F.S., which,
inter alia, encourages the use of innovative land development regulations to implement the
adopted comprehensive plan; and
WHEREAS, the purpose and intent of these Interim Development Regulations is to
create a system of development rights and land uses that will implement the FKccS, Rule 28-
20.100, F.A.c., and Goal 105 of the 2010 Comprehensive Plan and ameliorate the economic
impacts on private property owners; and
WHEREAS, in response to concerns raised by the Board of County Commissioners at
its June 18,2003, public hearing, the Growth Management Division staff with assistance of legal
counsel, has prepared these alternative Interim Development Regulations;
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
Section 1: Pursuant to Policy 105.2.1, Year 2010 Comprehensive Plan, "Conservation and
Natural Areas", designated as "Tier I" in Policy 105.2.1, are hereby designated, the boundaries
of which are described in the maps attached hereto, and are made part of this ordinance.
Section 2: During the period these interim development regulations are in effect, the boundaries
of the Conservation and Natural Areas may be amended by ordinance of the Board of County
Commissioners upon recommendation of a staff Technical Review Committee, which is hereby
authorized and established, and which shall be chaired by the Director of the Growth
Management Division. Amendments to the Conservation and Natural Areas boundaries shall be
based on the considerations and criteria used to originally draft the boundaries of the Tier I areas;
however, this shall not be construed to foreclose changes or additions to the original criteria used
to determine the Tier I areas.
mcidobocc.doc; ver.#2a
Page 5 of 9
Section 3: The Technical Review Committee shall consist of the Growth Management Director,
who shall serve as chairperson, Director of Planning and Environmental Resources, County Land
Steward, Executive Director of the Land Authority, and County Biologist. The Technical
Review Committee shall make its recommendations for amending the Conservation and Natural
Areas map based on the considerations and criteria used originally to designate and map the
boundaries of Tier I areas. Proposed amendments to these boundaries may be initiated by the
Director of Planning and Environmental Resources or by submission of a written application to
the Planning and Environmental Resources Department on a form approved by the Department.
During the term of this Interim Development Ordinance, any proposed amendments to the
boundaries of the Conservation and Natural Areas, shall follow a streamline review and approval
process. Proposed amendments will not be reviewed by the Development Review Committee
and Planning Commission. The public hearing for Board of County Commissioner's
consideration of amendments to these boundaries will be advertised at least 15 days prior to the
public hearing. Posting will not be required of any properties, which are the subject of such
amendments.
Section 4: The Board of County Commissioners establishes the interim development regulations
set forth in this Ordinance, which shall remain in full force and effect upon its effective date until
either amendments to the Year 2010 Comprehensive Plan and Land Development Regulations
are drafted and adopted by the County Commissioners to implement the Florida Keys Carrying
Capacity Study and Goal 105 of the 2010 Comprehensive Plan or eighteen months from the date
of the adoption of this Ordinance, whichever comes first. Prior to the eighteen-month sunset
date of this ordinance, the Board of County Commissioners, upon the recommendation of the
Planning Commission, may amend this ordinance to extend its provisions an additional six
months.
Section 5: Any residential (ROGO) or non-residential (NROGO) building permit application
with a ROGOfNROGO entry date of July 14, 2003 or earlier shall be exempt from these interim
development regulations.
Section 6: Any residential (ROGO) or non-residential (NROGO) building permit application
for development on Big Pine Key or No Name Key shall be exempt from these interim
development regulations.
Section 7: Within the boundaries of the Conservation and Natural Areas, any residential
(ROGO) or non-residential (NROGO) building permit application with an entry date of July 15,
2003, or later shall:
a. Receive an automatic minus evaluation point value of 10 [Group IV -high quality
habitat] under Section 9.5-122.3(a)(7) [ROGO] or Section 9.5-124.8
(a)(4)[NROGO], Monroe County Code;
b. Not be eligible to receive positive evaluation points for aggregation of any lots
under Section 9.5-122.3(a)(3) [ROGO], Monroe County Code; and,
mcidobocc.doc; ver.#2a
Page 6 of9
c. Be subject to at least the minimum open space ratio provisions of 80 percent
required for high quality hammock under Section 9.5-347 (b), Monroe County
Code, for any area of hammock to be cleared.
Section 8: Outside of the boundaries of the Conservation and Natural Areas, any residential
(ROGO) or non-residential (NROGO) building permit application with an entry date of July 15,
2003, or later shall:
a. Receive a mInUS evaluation point value of 5 [Group III-moderate quality
hammock] under Section 9.5-122.3(a)(7) [ROGO] or Section 9.5-
124.8(a)(4)[NROGO], Monroe County Code, if the area to be cleared contains
any hammock; and,
b. Be subject to the minimum open space provisions of 60 percent required for
moderate quality hammock under Section 9.5-347(b), Monroe County Code, for
that area of hammock to be cleared.
Section 9: Any use that does not require either a ROGO or NROGO allocation award, and that
is allowed pursuant to the Monroe County Land Development Regulations and the 2010
Comprehensive Plan, may be continued or established at anytime.
Section 10: All buildable vacant lands within the Conservation and Natural Areas shall be
eligible to qualify for ROGO and NROGO land dedication points under Section 9.5.122.3(a)(5)
and Section 9.5.124.8(a)(3), Monroe County Code, effective the date of this ordinance.
Section 11: Pursuant to the pending ordinance doctrine set forth in Smith v. City of
Clearwater, 383 So. 2d 681 (Fla. 2nd DCA 1980), ROGO or NROGO building permit allocation
applications submitted on or after July 15, 2003 shall be accepted but no ROGO or NROGO
allocation awards shall be issued on such applications until after the effective date of this
Ordinance.
Section 12: Pursuant to the pending ordinance doctrine, persons submitting a ROGO or
NROGO building permit application on or after July 15, 2003 are hereby notified that no vested
rights, legal entitlements, or equitable estoppel shall thereafter accrue by reason of their
submission prior to the effective day of adoption of this Ordinance or issuance of notice by the
Department of Community Affairs or Administration Commission finding this Ordinance in
compliance with Chapter 163 and 380, Florida Statutes.
Section 13: Pursuant to the pending ordinance doctrine, all ROGO and NROGO applications
submitted on or after July 15, 2003 will be decided pursuant to the standards and provisions set
forth in these Interim Development Regulations or any permanent ordinance or regulations
enacted upon the termination of these Interim Development Regulations, upon their effective
date.
Section 14: The County Administrator is directed to have the Growth Management Division
begin immediately preparing the draft text and map amendments and other supporting studies in
cooperation with the Planning Commission in order to effectuate the provisions of Goal 105 of
mcidobocc.doc; ver.#2a
Page 7 of9
the 2010 Comprehensive Plan, Rule 28-20.100, F.A.C., and the FKCCS, within the timeframes
set forth herein.
Section 15: In preparing these amendments, the County Administrator is directed to focus the
Growth Management Division's efforts in the following important areas: 1) preparation of
substantive revisions to simplify and streamline the County's permit allocation system and
environmental regulations and make them more transparent and understandable to the public; 2)
coordination of the preparation of these amendments and regulations with appropriate legal and
financial experts to ensure the permit allocation and land development system is legally
defensible and sound fiscally; 3) identification of plan and regulatory amendments and strategies
to ensure that the goals and objectives of the FKCcS and the 2010 Comprehensive Plan are
properly implemented; and 4) that any permanent regulations adequately protect and balance
other important objectives of the 2010 Comprehensive Plan, including, for example, affordable
housing needs.
Section 16: If any section, subsection, sentence, clause, item, change or provision of this
ordinance is held invalid, the remainder shall not be affected by such invalidity.
Section 17: All ordinances or parts of ordinances in conflict with this ordinance are hereby
repealed to the extent of said conflict.
Section 18: The ordinance is hereby transmitted to the Florida Department of Community
Affairs pursuant to Chapters 163 and 380, Florida Statutes.
Section 19: 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 finding this Ordinance in compliance with Chapter 163
and 380, Florida Statutes.
Section 20: This Ordinance shall stand repealed as of 11 :59 p.m. on the five hundred forty
seventh day after the adoption of this Ordinance, unless repealed sooner or extended pursuant to
the terms set forth herein.
[THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK.]
mcidobocc.doc; ver.#2a
Page 80f9
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida at a regular meeting held on the _ day of , 2003.
Mayor Dixie Spehar
Mayor Pro Tem Murray Nelson
Commissioner Charles "Sonny" McCoy
Commissioner George Neugent
Commissioner David Rice
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
BY
Mayor Dixie Spehar
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
Deputy Clerk
Approved as to form and legal sufficiency:
E. Tyson Smith, Esq.
mcidobocc.doc; ver.#2a
Page 9 of9
L.AW OFFICES
FREILICH, LEITNER 8 CARLISLE
IN KANSAS CITY, MISSOUR.
ATTORNEYS AT L.AW
ROBERT H. FREILICH. P.C.,......
.....RTIN L. LEITNER. P.C.'
RICH...RO G. CARLISLE. P.C.'
S. .....RK WHITE'"
ROBIN .... KR.....ER.....
TYSON S..ITH'
AOMITTED IN NO I. K~. CA', NY", HCI.,.L,.
A PARTNERSHIP INCLUDING PAOP'ESSIONAL CO""OA,.,TIONS IN AS"EN, COLORADO
1150 ONE MAIN PLAZA ,."EIL.ICH. MYLER, L.EITNE" & CA"L.ISLE
1015 S. "ILL ST.. SUITE 202
4435 MAIN STREET.' ... '.. ---' ..... '-HI '.--:; :7o,.$PEN. COLOR"'DO 811511-1973
; . I:; :.:: I~ " 1,/ > : , 'tELEPHONE: 19701 920-'018
KANSAS CITY MISSOURI 6~l1t-18'58 ~ b II u u:: :F~CSI"ILE: 19701 920-4258
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(816) 561.7931' i;! . d ' :
TELEPHONE . ~; I : : JUN - 3 2003 j ;. '. ~ ATTO"NEYS AT L.AW
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Timothy McGarry, AICP, Director
Monroe County Division of Growth Management
2798 Overseas Highway; Suite 400
Marathon, Florida 33050
Via Federal EXDress
Dear Mr. McGarry:
I have reviewed the interim development ordinance (IDO) being considered by the
County and offer several comments regarding its adoption and its eventual
implementation. Additionally, I have enclosed an amended IDO (hereinafter referred to
as the Proposed IDO) that reflects the recommendations set forth herein.
The Florida courts, and other state and federal courts around the country, have provided
insight into the elements that an IDO should address in order to pass constitutional
muster. I have reviewed the proposed IDO in light of these cases and have provided the
following with respect to several critical components.
First, the duration of the IDO must be "reasonable" in light of the nature, scope, and
complexity of the challenge to be addressed by the planning process, plan amendments,
and regulations to be developed while the IDO is in effect. See Tahoe-Sierra
Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S.Ct.
1465 (2002), Bradfordville Phipps Ltd. P'ship v. Leon County, 804 So.2d 464 (Fla. 1 st
DCA 2001), see also, Williams v. City of Central, 907 P.2d 701, 706 (Colo. Ct. App.
1995). This is perhaps the most critical constitutional consideration when counties
consider adoption of an interim ordinance.
The overwhelming weight of court decisions supports the conclusion that temporary
moratoria in effect for reasonable periods of time do not result in a taking. See Tahoe,
535 U.S. 302, see also, Ord. v. Kitsap County, 84 Wash. App. 602 (1997) (upholding a
six-year moratorium), Santa Fe Village Venture v. City of Albuquerque, 914 F. Supp. 478
(D. N.M. 1995) (thirty-month moratorium associated with effort to create national
monument not a taking); Offen v. County Council, 96 Md. App. 526 (1993) (upholding an
eight-year sewer moratorium), Smoke Rise, Inc. v. Washington Suburban Sanitary
Comm'n, 400 F. Supp. 1369 (D. Md. 1975) (five-year moratorium on sewer hookups does
not render land "worthless or useless so as to constitute a taking"); Woodbury Place
Partners, 492 N.W.2d 258 (Minn. Ct. App. 1992) (two-year moratorium on development
. pending completion on interstate intersectional location study not a taking); Cappture,
'336 A.2d 30 (N.J. Super. App. Div. 1975) (four-year moratorium imposed on
FREILICH, LEITNER ~ CARLISLE
Timothy McGarry, AICP, Director
June 2, 2003
Page 2
construction in flood-prone lands not a taking); Friel v. Triangle Oil Co., 76 Md. App.
96, 543 A.2d 863 (Md. App. 1988) (twenty-four-month interim ordinance not a take);
Estate of Scott, 778 S.W.2d 585 (Tex. App. 1989) (two-year interim ordinance not a
taking); Matter of Rubin v. McAlvey, 29 App. Div. 2d 874,288 N.Y.S.2d 519 (1968)
(two-year interim development ordinance valW.~; First English, 258 Cal. Rptr. 893 (delay
of thirty months not unreasonable).l-
The Proposed IDO would delay issuance of ROGO and NROGO permit allocations
within Tiers I & II for eighteen months, with the potential to extend its term by an
additional six months. As the ordinance states on its face, the Proposed IDO is necessary
to adequately plan for and implement Goal 105 of the 2010 Comprehensive Plan, Rule
28-20.100, F.A.C, and the intent and findings of the Florida Keys Carrying Capacity
Study (FKCCS). County staff has prepared comprehensive reports for the Planning
Commission and Board of County Commissioners (BOCC) that outline the range of
issues implicated by the Smart Growth provisions of the Comprehensive Plan. In
addition, the FKCCS, the provisions of which will be implemented by the IDO,
represents a broad and complex range of issues that have to be addressed.
Given the breadth and complexity of these issues, the extensive geographic area affected
by the Comprehensive Plan policies and the FKCCS, and the importance of receiving
adequate public input prior to the adoption of permanent policies and regulations, it
appears that an eighteen- to twenty-four-month moratorium would be found reasonable in
duration. See also Collura v. Town of Arlington, 367 Mass. 881,329 N.E.2d 733 (Mass.
1975) (noting that "with the adoption of an interim [moratorium a developer] is made
aware that a new plan is in the offing and is thus able to participate in the debate over
what that new plan should contain").
That said, the legality of a temporary moratorium depends significantly on what happens
after it is adopted. See Almquist v. Town of Marsham, 245 N.W. 2d 819, 826 (Minn.
1976) (holding that "... where a municipality enacts in good faith and without
discrimination, a moratorium on development which is of limited duration is valid if upon
enactment, the study proceeds promptly and appropriate zoning ordinances are
expeditiously adopted when it is completed."). Permanent policies, studies, and
regulations implementing the Plan and the FKCCS should be pursued diligently by the
County and adequate resources should be identified to effectuate their timely
development and adoption. Although the six-month extension of the Proposed IDO may
1 See also Orleans Builders & Developers v. Byrne, 186 N.J. Super. 432, 453 A.2d 200,208 (N.J. Super.
App. Div. 1982) (observing that "under decisional law in this state as well as in other jurisdictions"
moratoria "leading to formulation of a comprehensive system for the area's development which would
safeguard its environment" are not compensable), McCutchan Estates Corp. v. Evansville Vanderburgh
County Airport Auth. Dist., 580 N.E.2d 339 (Ind. Ct. App. 1991) (nine-month delay not extraordinary as a
matter of law), Dufau v. United States, 22 CI. Ct. 156 (Fed. CI. 1990) (sixteen-month delay not
; extraordinary as a matter oflaw).
FREILICH" LEITNER 8 CARLISLE
Timothy McGarry, AICP, Director
June 2, 2003
Page 3
very well be necessary, it is important that the IDO not become "extraordinary" in its
duration or amount to "a series of rolling moratoria" that could amount to a permanent
deprivation of use. See Tahoe, 122 S.Ct. at 1484-85. To that end, I recommend that staff
document its progress under the IDO, report its progress regularly to the Planning
Commission, and address staffing and resource needs in a timely manner.
Second, an IDO must be adopted for a legitimate public purpose. Cases in this regard are
numerous and generally stand for the proposition that there must be some rational
connection between the adoption of the IDO and the legitimate purpose to be served by
the interim measure and the policies and regulations to be developed during the interim
period. See e.g., Moviematic Industries Corp. v. Board of County Commissioners of
Metropolitan Dade County, 349 So.2d 667 (Fla. 3d DCA 1977), c.!, Bradfordville
Phipps, 804 So.2d 464. The Proposed IDO is being adopted, inter alia, to preserve the
environmental quality of the County's remaining undeveloped lands, to direct future
growth to those areas that have been designated as appropriate for redevelopment and
infill, and to reduce urban sprawl - all pursuant to the adopted Comprehensive Plan and
the FKCCS. Furthermore, the IDO is necessary to facilitate state planning mandates that
implicate regional interests over a vast geographic area. See Tahoe, 122 S.Ct. at 1488
("Indeed, the interest in protecting the decisional process is even stronger when an
agency is developing a regional plan than when it is considering a permit for a single
project.").
Pursuant to the fmdings of the FKCCS and its own planning analyses, the Planning
Commission has determined that issuance of additional ROGO and NROGO awards
within Tiers I and II, prior to the adoption of permanent policies and regulations, will
exacerbate these problems and would be contrary to the Comprehensive Plan and the
FKCCS. Additionally, it has found that permanent policies and regulations should be the
product of a deliberate, rational, and fair planning process that can be properly
undertaken only pursuant to a limited moratorium on allocations in certain areas. Such
concerns represent legitimate governmental interests on the part of the County and the
IDO has been narrowly tailored, both in duration and scope, to advance these particular
interests. See Gilbert v. State of California, 218 CaI. App. 3d 234 (CaI. 1990).
Third, we must consider whether the Proposed IDO would burden affected property
owners to such a degree as to result in a taking of private property under either the State
or Federal Constitutions or the taking statutes adopted by the Florida Legislature in 1995.
Moratoria, temporary in nature and rationally related to a legitimate governmental
purpose, rarely will be found to amount to an unconstitutional taking, particularly in light
of the 2002 U.S. Supreme Court decision in Tahoe. See a/so Penn Central Transp. Co. v.
New York City, 438 U.S. 104 (1978), Bradfordville Phipps, 804 So.2d 464.
On April 23, 2002, the U.S. Supreme Court upheld a 32-month moratorium imposed by
the Tahoe Regional Planning Agency in order to maintain the status quo during the
; development of a comprehensive land use plan to address environmental and carrying
FREILICH, LEITNER 8 CARLISLE
Timothy McGarry, AICP, Director
June 2, 2003
Page 4
capacity issues confronting that region. Tahoe-Sierra, 535 U.S. 302. The Court upheld
the agency's interim measures against the landowners' facial challenge that a temporary
deferment of use amounted to an unconstitutional "temporary" taking. Id at 1490. In
arriving at its decision, the Tahoe Court provided useful guidance on how local
governments might successfully craft an IDO that will survive an as-applied challenge to
its constitutionality.2 See also, Bradfordville Phipps, 804 So.2d 464 (Fla. 1st DCA 2001)
(upholding a twenty-two month deferral).
In addition to constitutional considerations, however, Florida counties must consider
what if any legal exposure they may suffer under the Bert J. Harris, Jr., Private Property
Rights Protection Act, Chap. 70.001, et seq. Fla. Stat. The Harris Act was enacted in
1995 to establish a cause of action, separate and distinct from the law of takings, for
property owners whose rights are "inordinately burdened" by an action of a governmental
entity. Fla. Stat. g70.001(1) & (2). The Act was intended to provide a statutory remedy
where the property owner may be foreclosed from a constitutional one. Florida's
appellate courts have given the Act very little treatment and its scope remains somewhat
murky. However, it appears the Act was not intended to provide a remedy for interim
regulations in the nature of the Proposed IDO. ld at ~70.001(3)(e).
The Act limits the definition of an "inordinate burden" to one that deems the property
owner ''permanently unable to attain the reasonable, investment-backed expectation for
the existing use..." and to "bear[ ] permanently a disproportionate share of a burden
imposed for the good of the public...". Id (emphasis added). The Act further excludes
any "temporary impact to real property" from the definition of the "inordinate burden"
required to give rise to a cause of action under the Act. Id. (emphasis added). Although
no published case has taken up the issue of interim measures under the Act, it appears on
its face that claims based on the Proposed IDa would be barred.
When the BaCC considers adoption of the Proposed IDO, County staff should explain on
the record the purpose of this interim measure, the planning basis for distinguishing
between the three tiers, how its adoption will facilitate the comprehensive planning
process, and the work plan that will effectuate that process within the 18 to 24 months
that the IDO will be in place. Documentation to this effect, including the staff report to
the BOCC titled "Implementing Goal 105 and the Carrying Capacity Study," also should
be provided.
2 Although, in 2001, the Florida Supreme Court held that the temporary closure of two hotels by Florida
cities pursuant to nuisance abatement statutes amounted to a temporary taking, that case was overruled by
and/or is distinguishable from the Tahoe decision. See Keshbro, Inc. v. City of Miami v. Kablinger, 80 I
So.2d 864 (Fla. 200 I). The grounds for the Keshbro decision were based largely on those expressly
rejected by the U.S. Supreme Court in Tahoe. See also, Bradfordville Phipps, 804 So.2d at 469 ("Reliance
upon First English for the threshold determination of whether a taking has occurred is ... suspect").
Furthermore, the Keshbro court distinguished from the scope of its holding those "prospectively temporary
"; regulations... in the land use and planning arena, where an entirely different set of considerations are
implicated from those in the context of nuisance abatement...". Id. at 874.
FREILICH" LEITNER ~ CARLISLE
Timothy McGarry, AICP, Director
June 2, 2003
Page 5
Finally, I recommend that the IDO be considered by the BOCC pursuant to the notice and
hearing requirements set forth in ~125.66(4)(b), F.S. This section describes the adoption
procedure required for any ordinance or resolution that changes the "actual list of
permitted, conditional, or prohibited uses within a zoning category, or changes the actual
zoning map designation of a parcel or parcels of land involving 10 contiguous acres or
more..,". Fla. Stat. ~125.66(4)(b), see also Sanibel v. Buntock, 409 So.2d 1073 (Fla. 2nd
DCA 1981).
If you have any additional questions or wish to discuss the Proposed IDO further, please
do not hesitate to call at anytime. It continues to be a pleasure to work with you and the
County Commission.
Sincerely,
. f\ ~
~~
for Freilich, Leitner & Carlisle
doc.#S7800/903SS.009
~~
COMMUNITY
POST OFFICE BOX 72
PH: 305- 852-5673
~:t.,.,~ ASSOCIATION
..: TAVERNIER. FL 33070
FAX: 305-852-8152
July 14,2003
To: Monroe County Board of County Commissioners
Re: BOCC Meeting -- July 15, 2003
Item Y -3 - Interim Development Ordinance
Dear Commissioners:
At its General Membership meeting on July 13,2003. the members of Tavernier
Community Association (TCA) unanimously supported the following motion:
Tavernier Community Association supports an Interim Development
Ordinance that directs all permits towards legally scarified lots and
establishes a moratorium on all remaining hardwood hammock until
sucb time that:
t. An accurate land designation system is devised and Land
Development Regulations can be amended to effectively
protect our remaining babitat/bammock areas.
2. Additional funding sources are identified and secured for
acquisition of consen'ation and neighborhood greenspace
areas.
Thank you very much for your consideration in this matter.
Sincerely,
SJMJan
~ 7/,'10:$
G-.