Item J3 J.3
County f � .�� ",�, 1 BOARD OF COUNTY COMMISSIONERS
Mayor Craig Cates,District 1
Mayor Pro Tem Holly Merrill Raschein,District 5
The Florida Keys
Michelle Lincoln,District 2
James K.Scholl,District 3
David Rice,District 4
County Commission Meeting
May 17, 2023
Agenda Item Number: J.3
Agenda Item Summary #12102
BULK ITEM: Yes DEPARTMENT: Planning/Environmental Resources
TIME APPROXIMATE: STAFF CONTACT: Emily Schemper(305) 289-2500
n/a
AGENDA ITEM WORDING: Approval of a Resolution to Extend the Reservation of Twenty-
Eight (28) Low-Income Category Affordable Housing ROGO Allocations Pursuant to Monroe
County Code Section 138-24(b)(2) for a 28-Unit Affordable-Employee Housing Development
Located on U.S. Highway 1, South Point Drive and Cypress Road, Tract "B", Revised Plat of
Amended Plat of Sugarloaf Shores Section F, Sugarloaf Key (Approximate Mile Marker 16.5),
Currently Having Property Identification Number 00166976-011400, until May 17, 2024.
ITEM BACKGROUND:
Lower Keys Community Center Corporation is requesting an extension of the reservation for
twenty-eight (28) low-income category affordable(-employee) ROGO allocations pursuant to
Monroe County Land Development Code ("LDC) Section 138-24(b)(2)through May 17, 2024.
Lower Keys Community Center Corp. (the "Applicant" or "LKCCC) is proposing to develop the
property with twenty-eight(28) affordable-employee housing units. At a regularly scheduled public
meeting held on November 20, 2018, the Monroe County Board of County Commissioners
("Board", "BOCC, "Monroe County", or the "County") adopted Resolution No. 411-2018,
reserving twenty-eight (28) low-income category affordable ROGO allocations pursuant to
Section 138-24(b)(2) of the Monroe County LDC, for the proposed affordable-employee housing
development, to expire if building permits were not obtained by November 20, 2019. On January 22,
2020, the BOCC adopted Resolution No. 028-2020, extending the reservation to November 20,
2020. On January 20, 2021, the BOCC approved Resolution No. 029-2021 extending the reservation
to November 20, 2021. On November 17, 2021, the BOCC approved Resolution No. 438-2021,
extending the reservation to May 17, 2023.
The Applicant has been awarded Low Income Housing Tax Credit ("LIHTC) financial assistance
from the Florida Housing Finance Corporation ("FHFC) to offset the costs of its proposed twenty-
eight(28) unit development(the "development" or the "project"), and has been pursuing the project,
including hosting three (3) community meetings to solicit feedback and ideas from property owners
in the Lower Keys, incorporating such ideas into development design, and working with the Florida
Department of Transportation ("FDOT") regarding the feasibility of various traffic and access
Packet Pg. 1673
J.3
modifications.
On December 16, 2020, the Monroe County Planning Commission approved the owner's request for
a major conditional use permit for development of the proposed housing units on the property, via
Planning Commission Resolution Nos. P35-20 and P36-20.
On February 5, 2021, a group of property owners on Sugarloaf Key individually and through the
entities Sugarloaf Shores Property Owners Association Inc., South Point Homeowners LLC, and
"Lower Density for Lower Sugarloaf, LLC" (collectively "Neighborhood Opponents") filed an
administrative appeal of Planning Commission Resolution No. P35-20 to the Florida Division of
Administrative Hearings ("DOAH") and made an effort toward attempting to perfect an appeal to the
BOCC regarding Planning Commission Resolution No. P36-20.
On July 22nd, 2021, DOAH Administrative Law Judge ("ALJ") E. Gary Early issued a Final Order
(attached) in favor of Monroe County and the Applicant and against the Neighborhood Opponents,
and affirmed the Planning Commission's decision memorialized in Planning Commission Resolution
No. P35-20.
On or about August 23, 2021, the Neighborhood Opponents then filed an appeal of the DOAH ALJ's
Final Order to the Circuit Court appellate division. Before a decision from the Circuit Court could
be reached, the Applicant and the Neighborhood Opponents on or about January 3, 2023,
agreed to settle their dispute through a Settlement Agreement recorded at Book 3208, Page
1980, Document No. 2403832, of the Official Records of Monroe County,in which those parties
mutually agreed to, inter alia, settle on up to twenty-eight (28) units of affordable employee
housing to be developed in a modified form on the subject property. On or about January 11,
2023, the Circuit Court case was dismissed, and also on January 11, 2023, those of or associated
with the Neighborhood Opponents `withdrew' their attempt to pursue an appeal of Planning
Commission Resolution No. P36-20 to the BOCC.
The subject request is for a one-year extension of the reservation of twenty-eight (28) low-
income category affordable(-employee) housing ROGO allocations. If approved, building
permit(s) must be obtained by May 17, 2024, or the reservation will expire.
The subject property is outlined below in blue.
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Relevant Monroe County Land Development Code Section:
Monroe County Code Section 138-24 (b) Reservation ofaffordable housing allocations.
Notwithstanding the provisions of Section 138-26 for awarding of affordable housing allocations,
the BOCC may reserve by resolution some or all of the available affordable housing allocations for
award to certain sponsoring agencies or specific housing programs consistent with all other
requirements of this chapter. Building permits for these reserved allocations shall be picked up
within six months of the effective reservation date, unless otherwise authorized by the BOCC in its
resolution. The BOCC may, at its discretion, place conditions on any reservation as it deems
appropriate. These reservations may be authorized by the BOCC for:
(1) The county housing authority, nonprofit community development organizations, pursuant to
Section 139-1(e), and other public entities established to provide affordable housing by entering into
a memorandum of understanding with one or more of these agencies;
(2) Specific affordable or employee housing projects participating in a federal/state housing
financial assistance or tax credit program or receivin some omeeform o direct financial assistance from
the county upon written request from the project sponsor and approved by resolution of the BOCC;
(3) Specific affordable or employee housing projects sponsored by nongovernmental not-for-profit
organizations above upon written request from the project sponsor and approved by resolution of the
BOCC;
Packet Pg. 1675
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(4) Specific affordable or employee housing programs sponsored by the county pursuant to
procedures and guidelines as may be established from time to time by the BOCC;
(5) Specific affordable or employee housing projects by any entity, organization, or person,
contingent upon transfer of ownership of the underlying land for the affordable housing project to
the county, a not-for-profit community development organization, or any other entity approved by
the BOCC, upon written request from the project sponsor and approved by resolution of the BOCC;
or
(6) Rental employee housing projects situated on the same parcel of land as the nonresidential
workplace for the tenants of these projects, upon written request from the property owner and
approved by resolution of the BOCC.
PREVIOUS RELEVANT BOCC ACTION:
November 20, 2018 - The BOCC approved Resolution No. 411-2018 for the reservation of twenty-
eight(28) low-income category affordable housing allocations.
January 22, 2020 - The BOCC approved Resolution No. 028-2020 for the reservation of twenty-
eight(28) low-income category affordable housing allocations.
January 20, 2021 - The BOCC approved Resolution No. 029-2021 for the reservation of twenty-
eight(28) low-income category affordable housing allocations through November 20, 2021.
November 17, 2021 - The BOCC approved Resolution No. 438-2021 for the reservation of twenty-
eight(28) low-income category affordable ROGO allocations through May 17, 2023.
CONTRACT/AGREEMENT CHANGES:
n/a
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
Reso 411-2018 Initial Reservation
Resolution Extension of Dockside Reservations
Reso 028-2020 Extension
Reso 029-2021 Extension
Reso 438-2021 Extension
DOAH Final Order- Lower Density for Lower Sugarloaf, LLC, et al. v. Monroe County, Florida, et
al., Case No. 21-0494 (DOAH July 22, 2021)
FINANCIAL IMPACT:
Effective Date:
Expiration Date:
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
Packet Pg. 1676
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Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required: N/A
Additional Details:
REVIEWED BY:
Emily Schemper Completed 05/02/2023 11:22 AM
Peter Morris Completed 05/02/2023 4:59 PM
Purchasing Completed 05/02/2023 5:01 PM
Budget and Finance Completed 05/02/2023 5:02 PM
Brian Bradley Completed 05/02/2023 5:04 PM
Lindsey Ballard Completed 05/02/2023 5:05 PM
Board of County Commissioners Pending 05/17/2023 9:00 AM
Packet Pg. 1677
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s
1
2 RESOLUTION NO. 411 -2018
3 c,
4 A RESOLUTION OF THE MONROE COUNTY BOARD OF COUNTY
5 COMMISSIONERS APPROVING THE RESERVATION OF TWENTY-
6 EIGHT (28) AFFORDABLE LOW INCOME CATEGORY ROGO
7 ALLOCATIONS FOR PROPOSED AFFORDABLE EMPLOYEE HOUSING
8 DWELLING UNITS ON SUGARLOAF KEY ON PROPERTY DESCRIBED AS
9 TRACT i'.B", kEVISED PLAT OF AMENDED PLAT OF SUGARLOAF
10 SHORES SECTION F, REAL ESTATE NUMBER 00166976-011400, UNTIL
11 NOVEMBER 20,2019 FOR BUILDING PERMIT ISSUANCE.
12
13 WHEREAS,the State of Florida and all local governments in the Florida Keys(each subject to Area
14 of Critical State Concern mandates relating to housing affordability) recognize the need for affordable housing
15 throughout the state and particularly in the Florida Keys where developable land for housing is extremely
16 limited and expensive; and
17 00
18 WHEREAS,the challenge of providing affordable housing opportunities in the Florida Keys is one
19 requiring sensible and responsive use of residential unit allocations, including implementation of long-term
20 preservation mechanisms; and g
21
22 WHEREAS,due consideration should be given to relevant factors such as the capacity for allocation
23 reclplents to promptly transform allocation awards/reservations into finished and occupied
24 affordable/workforce housing units; and
25
26 WHEREAS,the developers have legitimate needs for some assurance that allocations are in fact and
27 will remain available and/or justified for a reasonable time so that follow-through on initial commitments will U)
28 in fact be justified; and
29
30 WHEREAS,in accordance with Section 138-24(b)(2) of the Monroe County Land Development
31 Code allows the BOCC to authorize reservations for "specific affordable or employee housing projects 00
32 participating.in a federal/state housing financial assistance or tax credit program or receiving some form of
33 direct financial,assistance from the county upon written request from the project sponsor and approved by `�
34 resolution of the board of county commissioners,"and
35 0
36 WHEREAS, Lower Keys Community Center Corp. noticed Monroe County of its intent to apply to
37 the Florida Housing Finance Corporation ("FHFC") for Low Income Housing Tax Credit ("LIHTC ") ;
38 financial assistance to offset the costs of its proposed 28-unit development ("Project"); and
39
40 WHEREAS, as part of the L11iTC application, FHFC requires the applicant to have obtained
41 the necessary ROGOs and for Monroe County to execute a verification that the applicant has obtained the <
42 necessary ROGOs; and
43
44 WHEREAS,Monroe County Code Sec.138-24(b) allows reservation of affordable ROGO allocations
45 by the Board for specific housing programs, which includes FHFC, L11iTC and SAIL; and
Packet Pg. 1678
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1
2 WHEREAS, the reservation of affordable housing allocations for the anticipated project, does not
3 exempt the project from applicable requirements for the Monroe County Land Development Regulations,
4 Building Code and other regulatory requirements; and
5
6 WHEREAS, Lower Keys Community Center Corp. shall obtain all required approvals from the
7 Monroe County Planning &Environmental Resources Department for the project; and
8
9 WHEREAS, Lower Keys Community Center Corp. shall obtain building permits for the affordable c�
10 housing dwelling units by November 20, 2019; if the building permits are not issued by that date, the
11 allocations will revert to the County.
12
13 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
14 COMMISSIONERS OF MONROE COUNTY, FLORIDA:
15 ,
16 Section 1: The foregoing recitals are true and correct, and are hereby incorporated as if fully set
0
17 forth herein.
18
19 Section 2: The Monroe County Planning Department shall reservation for twenty-eight (28)
20 affordable ROGO allocations, consisting of twenty-eight (28) low income category allocations,for the Monroe
21 County project on Tract "B", Revised Plat of Amended Plat of Sugarloaf Shores Section F,Sugarloaf Key until
22 November 20,2019.
00
23 N
4-
24 Section 3: The developer must obtain the building permit(s) for the affordable/employee housing o
25 units on or before November 20,2019. g
26 a
27 Section 4: The developer shall comply with all Monroe County requirements, all applicable
28 Building Code requirements, and any other oversight agencies.
29
30 Section 5: The Planning and Building Department Staff is hereby authorized to process
31 expeditiously permit related applications for the above referenced project when received.
U)
32
33 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a 76
34 regular meeting held on the 20th day of November, 2018.
35 00
36 Mayor Sylvia Murphy Yes
37 '`: Mayor Pro Tem Danny Kolhage Yes
38 Commissioner Michelle Coldiron Yes
'39 + �:� Commissioner Heather Carruthers Yes U)
,4 0 :vim Commissioner David Rice Yes
41
: 4 ` o
43aV) 'S ;•.:� BOARD OF COUNTY CO ISSI S OF MONROE COUNTY,
FLORIDA
BY
y
Mayo ylvi urphy
47 'A �{ DO CLERK
48 '
49 DEPUTY CLERK MMIROE coufm
Al
87 7.WILLIAMS
ASSISTOT c �1'i°1`ORNE�
Date� ,
Packet Pg. 1679
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Mk i l Y/
2 RESOLUTION NO. -2023
3
4 A RESOLUTION OF THE MONROE COUNTY BOARD OF COUNTY
5 COMMISSIONERS APPROVING THE RESERVATION EXTENSION
6 OF TWENTY-EIGHT (28) AFFORDABLE' LOW-INCOME
7 CATEGORY ROGO ALLOCATIONS FOR AN AFFORDABLE-
8 EMPLOYEE HOUSING DWELLING UNIT DEVELOPMENT ON
9 SUGARLOAF KEY, MONROE COUNTY, ON PROPERTY
10 DESCRIBED AS TRACT "B", REVISED PLAT OF AMENDED PLAT
11 OF SUGARLOAF SHORES SECTION F, CURRENTLY HAVING
12 PROPERTY IDENTIFICATION NUMBER 00166976-011400, UNTIL 0
13 MAY 17, 2024, FOR BUILDING PERMIT ISSUANCE.
14 00
15 WHEREAS,the State of Florida and all local governments in the Florida Keys recognize the
16 need for affordable housing throughout the state and particularly in the Florida Keys where a
17 developable land for housing is extremely limited and expensive; and U)
18
19 WHEREAS,the challenge of providing affordable housing opportunities in the Florida Keys
20 is one requiring sensible and responsive use of residential unit allocations, including implementation U)
21 of long-term preservation mechanisms; and
22
23 WHEREAS, due consideration should be given to relevant factors such as the capacity for
24 allocation recipients to promptly transform allocation awards/reservations into finished and occupied
25 affordable-workforce housing units; and
26
27 WHEREAS, the developers have legitimate needs for some assurance that allocations are in 0
28 fact and will remain available and/or justified for a reasonable time so that follow-through on initial
29 commitments will in fact be justified; and a
30 U)
31 WHEREAS, Section 138-24(b)(2) of the Monroe County Land Development Code
32 ("LDC") allows the Monroe County Board of County Commissioners ("Board", "BOCC", W
33 "Monroe County", or the "County") to authorize reservations for "specific affordable or a
34 employee housing projects participating in a federal/state housing financial assistance or tax credit
35 program or receiving some form of direct financial assistance from the county upon written request 0
36 from the project sponsor and approved by resolution of the Board of County Commissioners"; and W
37
38 WHEREAS, at a regularly scheduled public meeting held on November 20, 2018,the BOCC
39 adopted Resolution No. 411-2018, reserving twenty-eight (28) low-income category affordable
40 ROGO allocations under Section 138-24(b)(2) of the Monroe County LDC, for the proposed
i I.e., affordable-employee housing.
1 of 4
Packet Pg. 1680
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I affordable-employee housing dwelling unit development, to expire if building permits were not
2 obtained by November 20, 2019; and
3
4 WHEREAS, at a regularly scheduled public meeting held on January 22, 2020, the BOCC
5 adopted Resolution No. 028-2020, reserving twenty-eight (28) low-income category affordable
6 ROGO allocations under Section 138-24(b)(2) of the Monroe County LDC, for the proposed °0
T
7 affordable-employee housing dwelling unit development, to expire if building permits were not
8 obtained by November 20, 2020; and ,
9
10 WHEREAS, at a regularly scheduled public meeting held on January 20, 2021, the BOCC
11 adopted Resolution No. 029-2021, reserving twenty-eight (28) low-income category affordable
12 ROGO allocations under Section 138-24(b)(2) of the Monroe County Land Development Code,
13 for the proposed affordable-employee housing dwelling unit development, to expire if building 2
14 permits were not obtained by November 20, 2021; and
15
16 WHEREAS, at a regularly scheduled public meeting held on November 17, 2021,the BOCC W
17 adopted Resolution No. 438-2021, reserving twenty-eight (28) low income category affordable 0
18 ROGO allocations under Section 138-24(b)(2) of the Monroe County Land Development Code, 0
19 for the proposed affordable-employee housing dwelling unit development, to expire if building 00
20 permits were not obtained by May 17, 2023; and 4-
21 a
22 WHEREAS, Lower Keys Community Center Corp. has been awarded Low Income Housing U)
23 Tax Credit("LIHTC") financial assistance from the Florida Housing Finance Corporation ("FHFC") a
24 to offset the costs of its proposed 28-unit development(the"development" or the "project"); and �i
25 U)
26 WHEREAS, as part of the LIHTC application, FHFC required the applicant to have a
27 obtained the necessary ROGO allocations ("ROGOs") and for Monroe County to execute a
2.1
28 verification that verifies that the applicant has obtained the necessary ROGOs; and 0
29
30 WHEREAS, Monroe County Code LDC Sec. 138-24(b) allows reservation of affordable
31 ROGO allocations by the Board for specific housing programs,which includes FHFC, LIHTC, and
32 SAIL; and 0
33 4-
34 WHEREAS, on or about December 16, 2020, the Monroe County Planning Commission a
35 approved the owner's request for a major conditional use permit for development of the proposed .2
36 housing units on the property, via Resolution Nos. P35-20 and P36-20; and
37
38 WHEREAS, on February 5, 2021, a group of property owners on Sugarloaf Key individually a
39 and through the entities Sugarloaf Shores Property Owners Association Inc., South Point
40 Homeowners LLC, and "Lower Density for Lower Sugarloaf, LLC") (collectively "Neighborhood 0
41 Opponents") filed an administrative appeal of Planning Commission Resolution No. P35-20 to the
42 Florida Division of Administrative Hearings ("DOAH")P35-20, and attempted to perfect an appeal
43 of Planning Commission Resolution No. P36-20 to the BOCC; and
44
45 WHEREAS, on July 22, 2021, DOAH Administrative Law Judge ("ALJ") E. Gary Early
46 issued a Final Order in DOAH Case No. 21-0494 in favor of Monroe County and the Applicant and
47 against the Neighborhood Opponents and denied the appeal by the Neighborhood Opponents and
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I affirmed the Planning Commission's decision to issue major conditional use permit approval
2 memorialized pursuant to Planning Commission Resolution No. P35-20; and
3
4 WHEREAS, on or about August 23, 2021,the Neighborhood Opponents then filed an appeal
5 of the DOAH ALJ's Final Order to the Circuit Court appellate division. Before a decision from the
6 Circuit Court could be reached,the Applicant and the Neighborhood Opponents on or about January
7 3, 2023, agreed to settle their dispute through a Settlement Agreement recorded at Book 3208,Page
8 1980, Document No. 2403832, of the Official Records of Monroe County, in which those parties
9 mutually agreed to, inter alia, settle on up to twenty-eight(28)units of affordable employee housing M
10 to be developed in a modified form on the subject property; and
11
12 WHEREAS, on or about January 11, 2023,the Circuit Court case was dismissed, and also on
13 January 11, 2023,those of or associated with the Neighborhood Opponents `withdrew' their attempt
14 to pursue an appeal of Planning Commission Resolution No. P36-20 to the BOCC; and
15
16 WHEREAS, LKCCC is requesting a one (1) year extension of the reservation in order to W
17 proceed with development consistent with the settlement it reached with its Neighborhood 0
18 Opponents; and 0
19 00
20 WHEREAS,the reservation of affordable housing allocations for the anticipated project, does
21 not exempt the project from applicable requirements for the Monroe County Land Development
22 Regulations, Building Code and other regulatory requirements; and
23 u
24 WHEREAS, LKCCC shall obtain all required approvals from the Monroe County Planning
25 and Environmental Resources Department("Department'') for the project; and
26
27 WHEREAS, LKCCC shall obtain building permits for the affordable-employee housing
28 dwelling units by May 17, 2024; if the permit(s)are not issued, the allocations shall automatically
29 revert by operation of law to Monroe County;
30
31 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY �+
32 COMMISSIONERS OF MONROE COUNTY, FLORIDA: 0
33 4-
34 Section 1. The foregoing recitals, findings of fact, conclusions of law, and statements of a
35 purpose and legislative intent are true and correct, and are hereby incorporated as if fully set forth U)
36 herein.
X
37
38 Section 2. The Monroe County Planning Department shall reservation twenty-eight(28)
39 affordable ROGO allocations, consisting of twenty-eight (28) low income category allocations, for 0
U)
40 the Monroe County project on Tract"B", Revised Plat of Amended Plat of Sugarloaf Shores Section
41 F, Sugarloaf Key until May 17, 2024.
42
43 Section 3. Interpretation. The interpretation of this Resolution, and all provisions of the
44 Monroe County Codes, Comprehensive Plan, floodplain management regulations, and Florida
45 Building Code whose interpretation arises out of, relates to, or is interpreted in connection with this
3 of 4
Packet Pg. 1682
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I Resolution, shall be construed in favor of the Monroe County BOCC, and such interpretations shall
2 be entitled to great weight in adversarial administrative proceedings, at trial, and on appeal.
3
c�
4 Section 4. Severability,Partial Invalidity,and Survival of Provisions.If any provision
5 of this Resolution, or any section, subsection, or part or portion thereof, is held to be invalid or
6 unenforceable by any administrative hearing officer or court of competent jurisdiction, the invalidity T
c�
7 or unenforceability of such provision, or part or portion thereof, shall neither limit nor impair the
8 operation, enforceability, or validity of any other provisions of this Resolution, or any remaining
9 section(s),subsection(s),part(s),or portion(s)thereof.All other provisions,parts,and portions thereof
10 shall continue unimpaired in full force and effect.
11
12 Section 5. Non-Reliance by Third-Parties. No person or entity shall be entitled to rely
13 upon the terms, or any of them, of this Resolution to enforce or attempt to enforce any third-party
14 claim(s) or entitlement(s) to or benefit(s) of any service(s), term(s), or program(s) contemplated
15 hereunder; and
16 0
17 Section 6. The developer must obtain the building permits for the affordable/employee 0
0
19 housing units on or before May 17, 2024.
00
20 Section 7. The developer shall comply with all Monroe County requirements, all -
21 applicable Building Code requirements, and any other oversight agencies. a
22 U)
23 Section 8. The professional staff of the Department and of the Monroe County Building 2
x
24 Department are hereby authorized to process expeditiously permit related applications for the above
25 referenced project when received.
26
27 PASSED AND ADOPTED at a regular meeting of the Board of County Commissioners of
28 Monroe County, Florida, held on the 17th day of May, 2023.
29
Mayor Craig Cates, District 1 .2
Mayor Pro Tem Holly Merrill Raschein, District 5 U
Michelle Lincoln, District 2 a
James K. Scholl, District 3 0
David Rice, District 4 a
U)
a
BOARD OF COUNTY COMMISSIONERS X
OF MONROE COUNTY, FLORIDA
By:
Mayor Craig Cates
M
(SEAL) - �" F
� � u
raR c�. A
SEAL n
ATTEST. KEVIN MADOK, CLERK
PETER MORRIS
ASSISTANT COUNTY ATTORNEY
AS DEPUTY CLERK Dates: __ 5/2/23
4of4
Packet Pg. 1683
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e 0 e
e�
�e.
2 RESOLUTION NO. 028 -2020
3 0
4 A RESOLUTION OF THE MONROE COUNTY BOARD OF COUNTY
5 COMMISSIONERS APPROVING THE RESERVATION EXTENSION OF
6 TWENTY-EIGHT (28) AFFORDABLE LOW INCOME CATEGORY ROGO
7 ALLOCATIONS FOR A PROPOSED EMPLOYEE DWELLING UNIT ON
8 SUGARLOAF KEY FOR MONROE COUNTY ON PROPERTY DESCRIBED
9 AS TRACT "B", REVISED PLAT OF AMENDED PLAT OF SUGARLOAF
10 SHORES SECTION F, REAL ESTATE NUMBER 00166976-011400 UNTIL
I 1 NOVEMBER 20,2020 FOR BUILDING PERMIT ISSUANCE.
12
13 WHEREAS,the State of Florida and all local governments in the Florida Keys(each subject to Area
14 of Critical State Concern mandates relating to housing affordability) recognize the need for affordable
15 housing throughout the state and particularly in the Florida Keys where developable land for housing is
16 extremely limited and expensive; and
17
18 WHEREAS, the challenge of providing affordable housing opportunities in the Florida Keys is one
19 requiring sensible and responsive use of residential unit allocations, including implementation of long-term
00
20 preservation mechanisms;and N
4-
21 0
22 WHEREAS,due consideration should be given to relevant factors such as the capacity for allocation
23 recipients to promptly transform allocation awards/reservations into finished and occupied
24 affordable/workforce housing units; and 0
25
26 WHEREAS,the developers have legitimate needs for some assurance that allocations are in fact and C
27 will remain available and/or justified for a reasonable time so that follow-through on initial commitments g
28 will in fact be justified; and
U)
0
29
30 WHEREAS, in accordance with Section 138-24(b)(2) of the Monroe County Land Development
31 Code allows the BOCC to authorize reservations for "specific affordable or employee housing C1'
32 projects participating in a federal/state housing financial assistance or tax credit program or receiving some
00
33 form of direct financial assistance from the county upon written request from the project sponsor and N
34 approved by resolution of the board of county commissioners,"and 0
35 0
36 WHEREAS, at a regularly scheduled public meeting held on November 20, 2018, the BOCC
37 adopted Resolution No 411-2018, reserving twenty-eight (28) low income category affordable ROGO
38 allocations under Section 138-24(b)(2) of the Monroe County Land Development Code, for the
39 proposed employee dwelling unit development, to expire if building permits were not obtained by
40 November 20,2019; and
41
42 WHEREAS, Lower Keys Community Center Corp. has obtained Low Income Housing Tax Credit
43 ("LIHTC") financial assistance from the Florida Housing Finance Corporation ("FHFC") to offset the costs
44 of its proposed 60-unit development ('Project"); and
45
46
1
Packet Pg. 1684
J.3.c
1 WHEREAS, as part of the LIHTC application, FHFC required the applicant to have
2 obtained the necessary ROGOs and for Monroe County to execute a verification that verifies that the
3 applicant has obtained the necessary ROGOs; and
4
5 WHEREAS, Monroe County Code Sec.138-24(b) allows reservation of affordable ROGO
6 allocations by the-Board for specific housing programs, which includes FHFC,LIHTC and SAIL; and
7
8 WHEREAS,Lower Keys Community Center Corp.has been pursuing the project but is requesting a
9 one-year extension of the reservation; and
10
11 WHEREAS, the reservation of affordable housing allocations for the,anticipated project, does not
12 exempt the project from applicable requirements for the Monroe County Land Development Regulations,
13 Building Code and other regulatory requirements; and
0
14
15 WHEREAS, Lower Keys Community Center Corp. shall obtain all required approvals from the
16 Monroe County Planning&Environmental Resources Department for the project;and
17
18 WHEREAS, Lower Keys Community Center Corp. shall obtain permits for the affordable housing
19 dwelling units by November 20, 2020; if the permit(s) are not issued, the allocations will revert to the
20 County.
21
22 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
23 COMMISSIONERS OF MONROE COUNTY,FLORIDA:
24
25 Section 1: The foregoing recitals are true and correct, and are hereby incorporated as if fully set 00
c0
26 forth herein. 0
27 a
28 Section 2: The Monroe County Planning Department shall reservation for twenty-eight (28)
29 affordable ROGO allocations, consisting of twenty-eight (28) low income category allocations, for the
30 Monroe County project on Tract "B", Revised Plat of Amended Plat of Sugarloaf Shores Section F,
31 Sugarloaf Key until November 20,2020.
32
33 Section 3: The developer must obtain the building permits for the affordable/employee housing
34 units on or before November 20,2020.
35 Q
N
36 Section 4: The developer shall comply with all Monroe County requirements, all applicable 00
N
37 Building Code requirements,and any other oversight agencies.
0
38
39 Section 5: The Planning and Building Department Staff is hereby authorized to process
40 expeditiously permit related applications for the above referenced project when received.
41
42 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,Florida at a
43 regular meeting held on the 22nd day of January, 2020.
44
45 Mayor Heather Carruthers Yes-
46 Mayor Pro Tem Michelle Coldiron Yes
47 Commissioner Craig Cates Ves
48 Commissioner David Rice Yes
49 Commissioner Sylvia Murphy Yes
2
Packet Pg. 1685
J.3.c
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY
\`
FLORIDA
z BY
5" ¢ Mayor Heat r Ca t rs
7 AIw. �-:;, ;, MAD K,CLERK
8 l
9 DEPUTY ERK
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Packet Pg. 1686
J.3.d
1
2 RESOLUTION NO. 029 -2021
3
4 A RESOLUTION OF THE MONROE COUNTY BOARD OF COUNTY
5 COMMISSIONERS APPROVING THE RESERVATION EXTENSION OF
b TWENTY-EIGHT (28) AFFORDABLE LOW INCOME CATEGORY ROGO
7 ALLOCATIONS FOR A PROPOSED EMPLOYEE DWELLING UNIT ON
8 SUGARLOAF KEY FOR MONROE COUNTY ON PROPERTY DESCRIBED
9 AS TRACT "B", REVISED PLAT OF AMENDED PLAT OF SUGARLOAF
10 SHORES SECTION F, CURRENTLY BEARING PROPERTY
11 IDENTIFICATION NUMBER 00166976-011400 UNTIL NOVEMBER 20, ,
12 2021,FOR BUILDING PERMIT ISSUANCE.
13
14 WHEREAS,the State of Florida and all local governments in the Florida Keys(each subject to Area
15 of Critical State Concern mandates relating to housing affordability)recognize the need for affordable housing U)
16 throughout the state and particularly in the Florida Keys where developable land for housing is extremely
17 limited and expensive; and
18
19 WHEREAS,the challenge of providing affordable housing opportunities in the Florida Keys is one
00
20 requiring sensible and responsive use of residential unit allocations, including implementation of long-term c14
21 preservation mechanisms;and 0
22 9=
23 WHEREAS,due consideration should be given to relevant factors such as the capacity for allocation
24 recipients to promptly transform allocation awards/reservations into finished and occupied
25 affordable/workforce housing units;and
26
27 WHEREAS,the developers have legitimate needs for some assurance that allocations are in fact and g
28 will remain available and/or justified for a reasonable time so that fallow-through on initial commitments will
29 in fact be justified;and
30
31 WHEREAS, in accordance with Monroe County Land Development Code Section 138-24(b)(2) CN
32 allows the BOCC to authorize reservations for "specific affordable or employee housing projects C�
33 participating in a federal/state housing financial assistance or tax credit program or receiving some form of C14
34 direct financial assistance from the county upon written request from the project sponsor and approved by o
35 resolution of the board of county commissioners,";and
36
37 WHEREAS,at a regularly scheduled public meeting held on November 20,2018,the BOCC adopted
38 Resolution No. 411-2018, reserving twenty-eight (28) low income category affordable ROGO allocations
39 under Monroe County band Development Code Section 138-24(b)(2),for the proposed employee dwelling
40 unit development,to expire if building permits were not obtained by November 20,2019;and
41
42 WHEREAS, at a regularly scheduled public meeting held on January 22, 2020, the BOCC adopted
43 Resolution No. 028-2020, reserving twenty-eight (28) low income category affordable ROGO allocations
44 under Monroe County Land Development Code Section 138-24(b)(2),for the proposed employee dwelling
45 unit development,to expire if building permits were not obtained by November 20,2020;and
46
i
Packet Pg. 1687
J.3.d
I WHEREAS, Lower Keys Community Center Corp. has been awarded Low Income Housing Tax
2 Credit("LIHTC") financial assistance from the Florida Housing Finance Corporation ("FHFC")to offset the
3 costs of its proposed 28-unit development("development"or the"Project");and
4
5 WHEREAS, as part of the LIHTC application, FHFC required the applicant to have obtained
6 the necessary ROGOs and for Monroe County to execute a verification that verifies that the applicant has
7 obtained the necessary ROGOs;and
8
9 WHEREAS,Monroe County Code Sec. 138-24(b)allows reservation of affordable ROGO allocations
10 by the Board for specific housing programs,which includes FHFC,LIHTC and SAIL; and
11 c�
12 WHEREAS,on December 16,2020,the Monroe County Planning Commission approved the owner's
13 request for a major conditional use permit for development of the proposed housing units on the property,via
14 Monroe County Planning Commission Resolutions P35-20 and P36-20;and
15
16 WHEREAS,Lower Keys Community Center Corp.has been pursuing the project but is requesting a
17 one-year extension of the reservation; and
18 0
19 WHEREAS, the reservation of affordable housing allocations for the anticipated project, does not
20 exempt the project from applicable requirements for the Monroe County Land Development Regulations,
21 Building Code and other regulatory requirements;and
22
23 WHEREAS, Lower Keys Community Center Corp. shall obtain all required approvals from the
24 Monroe County Planning&Environmental Resources Department for the project;and
25 00
CN
20 WHEREAS, Lower Keys Community Center Corp. shall obtain permits for the affordable housing
27 dwelling units by November 20,2021; if the permit(s)are not issued, the allocations shall revert to the a
28 County; g
29 a
30 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
31 COMMISSIONERS OF MONROE COUNTY,FLORIDA;
32
33 Section 1. The foregoing recitals are true and correct,and are hereby incorporated as if fully set
34 forth herein.
35
36 Section 2. The Monroe County Planning Depar tment shall reservation for twenty-eight(28)affordable N
37 ROGO allocations, consisting of twenty-eight (28) low income category allocations, for the Monroe County `�
0)
38 project on Tract `B", Revised Plat of Amended Plat of Sugarloaf Shores Section F, Sugarloaf Key until Q
39 November 20,2021. 0
40
4 i Section 3. The developer must obtain the building permits for the affordable/employee housing
42 units on or before November 20,2021.
E
43
c�
44 Section 4. The developer shall comply with all Monroe County requirements, all applicable
45 Building Code requirements,and any other oversight agencies and their respective regulatory requirements.
46
47 Section S. The Planning and Environmental Resources Department and Building Department
48 staffs are hereby authorized to expeditiously process permit related applications for the above referenced
49 project when received.
2
Packet Pg. 1688
J.3.d
1 Section 6. Construction and Interpretation.This resolution and its interpretation shall be
2 liberally construed and enforced in favor of Monroe County to effectuate its public purpose(s)and policy(ies)
3 of the County. The construction and interpretation of this resolution and all Monroe County Comprehensive
4 Plan provision(s), Florida Building Code, Florida Statutes, and Monroe County Code(s)provision(s) whose
5 interpretation arises out of, relates to, or is interpreted in connection with this resolution shall be liberally
6 construed and enforced in favor of Monroe County to effectuate its public purpose(s) and policy(ies) of the
7 County, and shall be deferred in favor of the BOCC and such construction and interpretation shall be entitled
8 to great weight in adversarial administrative proceedings,at trial,bankruptcy,and on appeal.
9
10 Section 7. No Liability. Monroe County expressly reserves and in no way shall be deemed to
I I have waived, for itself or for its officer(s), empioyee(s), or agent(s), any sovereign, governmental, and any s
12 other similar defense immunity, exemption, or protection against any suit cause-of-action demand, or
13 liability.
14
15 Section 8. Severability.If any provision of this resolution,or any part or portion thereof,is held
16 to be invalid or unenforceable by any administrative hearing officer or court of competent jurisdiction, the
17 invalidity or unenforceability of such provision, or any part or portion thereof, shall neither limit nor impair
18 the operation,enforceability,or validity of any other provision of this resolution,or any remaining part(s)or o
19 portion(s) thereof. All other provisions of this resolution, and remaining part(s) or portion(s) thereof, shall
20 continue unimpaired in full force and effect.
21
22 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a
23 regular meeting held on the 20th day of January,2021,
24
25 Mayor Michelle Coldiron Yes c00
0
26 - Mayor Pro Tem David Rice Yes -
27 ���� Commissioner Craig Cates Yes a
Commissioner Eddie Martinez Yes U)
i Commissioner Mike Forster Yg
BOARD OF COUNTY C ID ERS OE COUNTY,
FLORIDA
BY:
3 y°"�o Mayor Michelle Coldiron
35
36 A V ADOK, LERK MOAGOVWYT
3CN
FORM V-
37
38 AS DEPU CLERK �___.- 0)
TY
ASSISTANT COUNTY ATTORNEY D rCN
Date: 1421N - O
a' U)
L
3
Packet Pg. 1689
J.3.e
2 RESOLUTION NO. 438 -2021
3
4 A RESOLUTION OF THE MONROE COUNTY BOARD OF COUNTY
5 COMMISSIONERS APPROVING THE RESERVATION EXTENSION OF
6 TWENTY-EIGHT (28) AFFORDABLE' LOW INCOME CATEGORY ROGO
7 ALLOCATIONS FOR AN AFFORDABLE-EMPLOYEE HOUSING
8 DWELLING UNIT DEVELOPMENT ON SUGARLOAF KEY, MONROE
9 COUNTY,ON PROPERTY DESCRIBED AS TRACT"B",REVISED PLAT OF
10 AMENDED PLAT OF SUGARLOAF SHORES SECTION F, PROPERTY
11 IDENTIFICATION NUMBER 00166976-011400 UNTIL MAY 17, 2023 FOR
12 BUILDING PERMIT ISSUANCE.
13 2
14 WHEREAS,the State of Florida and all local governments in the Florida Keys (each subject to Area
15 of Critical State Concern mandates relating to housing affordability)recognize the need for affordable housing
16 throughout the state and particularly in the Florida Keys where developable land for housing is extremely
17 limited and expensive; and
18 0
19 WHEREAS, the challenge of providing affordable housing opportunities in the Florida Keys is one
00
20 requiring sensible and responsive use of residential unit allocations, including implementation of long-term cN
21 preservation mechanisms; and 0
22 a
23 WHEREAS,due consideration should be given to relevant factors such as the capacity for allocation
24 recipients to promptly transform allocation awards/reservations into finished and occupied
X
25 affordable/workforce housing units; and
26
27 WHEREAS,the developers have legitimate needs for some assurance that allocations are in fact and
28 will remain available and/or justified for a reasonable time so that follow-through on initial commitments will
29 in fact be justified; and is
30
CN
31 WHEREAS, in accordance with Section 138-24(b)(2) of the Monroe County Land Development Q
C�
32 Code allows the BOCC to authorize reservations for "specific affordable or employee housingprojects 00
33 participating in a federal/state housing financial assistance or tax credit program or receiving some form of
34 direct financial assistance from the county upon written request from the project sponsor and approved by U)
35 resolution of the board of county commissioners," and
36
37 WHEREAS,at a regularly scheduled public meeting held on November 20,2018,the BOCC adopted
38 Resolution No 411-2018, reserving twenty-eight (28) low income category affordable ROGO allocations
39 under Section 138-24(b)(2) of the Monroe County Land Development Code, for the proposed employee
40 dwelling unit development,to expire if building permits were not obtained by November 20, 2019; and
41
42 WHEREAS, at a regularly scheduled public meeting held on January 22, 2020, the BOCC adopted
43 Resolution No. 028-2020, reserving twenty-eight (28) low income category affordable ROGO allocations
' I.e.,affordable-employee housing.
1
Packet Pg. 1690
J.3.e
I under Section 138-24(b)(2) of the Monroe County Land Development Code, for the proposed employee
2 dwelling unit development,to expire if building permits were not obtained by November 20, 2020; and
3
4 WHEREAS, at a regularly scheduled public meeting held on January 20, 2021, the BOCC adopted
5 Resolution No. 029-2021, reserving twenty-eight (28) low income category affordable ROGO allocations
6 under Section 138-24(b)(2) of the Monroe County Land Development Code, for the proposed employee
7 dwelling unit development,to expire if building permits were not obtained by November 20, 2021; and
8
9 WHEREAS, Lower Keys Community Center Corp. has been awarded Low Income Housing Tax
10 Credit("LIHTC") financial assistance fromthe Florida Housing Finance Corporation (FHFC")to offset the
11 costs of its proposed 28-unit development("Project"); and
12
13 WHEREAS, as part of the LIHTC application, FHFC required the applicant to have obtained 4-
14 the necessary ROGOs and for Monroe County to execute a verification that verifies that the applicant has 0
15 obtained the necessary ROGOs; and
16
17 WHEREAS, Monroe County Code Sec.138-24(b)allows reservation of affordable ROGO allocations
18 by the Board for specific housing programs,which includes FHFC,LIHTC and SAIL; and 0
19
20 WHEREAS,on December 16,2020,the Monroe County Planning Commission approved the owner's
2.1
21 request for a major conditional use permit for development of the proposed housing units on the property,via
22 Resolutions P35-20 and P36-20; and
23
24 WHEREAS, on February 5, 2021, a group of property owners on Sugarloaf Key appealed these
25 approvals to the State of Florida Division of Administrative Hearings ("DOAH"); and c00
0
26 -
27 WHEREAS, on July 22, 2021,the DOAH hearing officer presiding over the appeal issued a final a
28 order denying the appeal and affirming the decision of the Planning Commission; and .
29
30 WHEREAS, on or about August 23, 2021, the same group of neighbors appealed the final order of
31 the DOAH hearing officer to the Circuit Court, where said litigation remains active and ongoing; and a
32
33 WHEREAS, Lower Keys Community Center Corp. has been pursuing the project but is requesting a
34 eighteen month extension of the reservation; and
35
T_
36 WHEREAS, the reservation of affordable housing allocations for the anticipated project, does not c�
37 exempt the project from applicable requirements for the Monroe County Land Development Regulations, `�
00
38 Building Code and other regulatory requirements; and
39 0
40 WHEREAS, Lower Keys Community Center Corp. shall obtain all required approvals from the
41 Monroe County Planning &Environmental Resources Department for the project; and ;
42
43 WHEREAS, Lower Keys Community Center Corp. shall obtain permits for the affordable housing
44 dwelling units by May 17,2023; if the permit(s) are not issued, the allocations will revert to the County;
45
46 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
47 COMMISSIONERS OF MONROE COUNTY,FLORIDA:
48
49 Section 1: The foregoing recitals are true and correct, and are hereby incorporated as if fully set
50 forth herein.
51
2
Packet Pg. 1691
J.3.e
I Section 2: The Monroe County Planning Department shall extend reservation for twenty-eight
2 (28)affordable ROGO allocations, consisting of twenty-eight(28) low income category allocations, for the
3 Monroe County project on Tract`B",Revised Plat of Amended Plat of Sugarloaf Shores Section F,Sugarloaf
4 Key until May 17,2023.
5
6 Se-ction_3: The developer must obtain the building permits for the affordable/employee housing
7 units on or before May 17, 2023.
8 CL
9 Section 4: The developer shall comply with all Monroe County requirements, all applicable T
10 Building Code requirements, and any other oversight agencies.
11
12 Section 5: The Planning and Building Department Staff is hereby authorized to process o
13 expeditiously permit related applications for the above referenced project when received.
14
15 PASSED AND ADOPTED at a regular meeting of the Board of County Commissioners of
16 Monroe County, Florida, held on the 17'day of November 2021. o
17
Mayor18 Rice
Yes
19 Mayor Pro Tern Craig Cates Yes
20 Commissioner Mchele
Coldiron Yes
21 Commissioner Eddie Martinez Yes
22 Commissioner Holly Merrill Raschein Yes 00
CN
23
24 BOARD OF COUNTY COMMISSIONERS
25 OF MONROE COUNTY, FLORIDA
26 W
� ;
By: .2
Mayor David Rice W
KEVIN MADOK, CLERK E COUNTYATTORNEY `N
T c'�
00
34 By: Date-
�a��w ww w � � �o rye,. 0
35 As feputy Clerk
e
3
Packet Pg. 1692
J.3.f
75
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LOWER DENSITY FOR LOWER SUGARLOAF,
LLC, SUGARLOAF SHORES PROPERTY
OWNERS ASSOCIATION, INC., SOUTH c14
POINT HOMEOWNERS, LLC; STUART z
SCHAFFER; JACK MARCHANT; JOHN
COLEY AND WILLIAM L. WALDROP U
FAMILY TRUST 12/13/11,
Appellants,
vs. Case No. 21-0494
MONROE COUNTY PLANNING t0
COMMISSION AND LOWER KEYS 0
COMMUNITY CENTER CORPORATION,
0
Appellees. 5
csi
FINAL ORDER
Pursuant to section 102-185(f), Monroe County Code (MCC),1 Appellants, Lower
Density For Lower Sugarloaf, LLC; Sugarloaf Shores Property Owners Association,
Inc.; South Point Homeowners, LLC; Stuart Schaffer; Jack Marchant; John Coley;
0
and the William L. Waldrop Family Trust 12/13/11 (Appellants), seek review of LM
Monroe County Planning Commission (Commission) Resolution No. P35-20
(Resolution).
The Resolution approved a development application requesting issuance of a
0
major conditional use permit by Lower Keys Community Center Corporation
(LKCCC) for the proposed development of 88 multifamily deed-restricted affordable
employee housing dwelling units at the intersection of Overseas Highway/U.S.
Highway 1 and South Point Drive on Sugarloaf Key, near approximate mile
marker 16.7, oceanside (Application).
I Part II of the Monroe County Code is often referred to as the Land Development Code (LDC). For
purposes of this Final Order, relevant provisions will be referred to as being part of the MCC.
Packet Pg. 1693
J.3.f
75
On December 16, 2020, the Commission held a duly noticed public meeting
(Public Meeting) to hear and consider the Application. Based on its consideration of
the record developed at the Public Meeting, the Commission passed and adopted the
Resolution, and approved the Application, on December 16, 2020. The Resolution
CN
was rendered on January 8, 2021. The "Appeal to Hearing Officer (State of Florida 6
Division of Administrative Hearings - DOAH)" (Appeal) was filed by Appellants
U
with the Monroe County Planning and Environmental Resources Department
(MCPERD) on February 5, 2021. The Appeal was referred to the Division of
Administrative Hearings (DOAH) on February 11, 2021. The ten-volume Record of
the underlying proceeding, consisting of pages 1 through 1287, was thereafter
electronically filed on the docket and transmitted on a CD-R to DOAH on
U
February 12, 2021. 0
0
On February 16, 2021, a scheduling order was entered that established the 0
briefing schedule for the appeal pursuant to section 102-217, MCC. Appellants filed 5
an Unopposed Motion for an Extension of Time to File the Initial Brief, which was
�i
granted. The date for filing the initial brief was set for May 13, 2021.
On March 15, 2021, LKCCC, the owner of the property and applicant for the
2
major conditional use permit, moved to intervene in this proceeding. The motion
was granted, and LKCCC was accepted with full party rights as an Appellee.
On April 6, 2021, Appellants filed a Motion to Stay, requesting that this
proceeding be stayed to allow a related Commission resolution, Resolution P36-20,
which approved an affordable housing project of"greater than 20 units" for the
same project and property, to be resolved contemporaneous with this case.
On April 20, 2021, a telephonic hearing was held on the Motion to Stay at which
all parties were represented. Due to the unavailability of the then-presiding
Administrative Law Judge (ALJ), Suzanne Van Wyk, the motion was heard by the
undersigned. At the commencement of the motion hearing, the undersigned advised
the parties of a possible conflict created with the intervention of LKCCC, whose
counsel is a member of the law firm that served as ALJ Van Wyk's ethics counsel in
c�
2
Packet Pg. 1694
J.3.f
75
her election campaign for judicial office in 2018. Appellants thereafter filed a
Motion to Recuse ALJ Van Wyk, and this case was transferred to the undersigned.
After consideration of the motion, responses, and argument, the Motion to Stay
was denied.
CN
On May 10, 2021, Appellants filed a motion to extend the deadline to file the 6
Initial Brief by seven days, until May 20, 2021. The Motion was granted.
U
On May 14, 2021, Appellants, without filing a motion for leave to do so, filed a
Supplement to Record. Appellants did not file a memorandum of the authority
under which the supplement was filed. On May 20, 2021, LKCCC filed a Motion to
Strike Appellants' "Supplement to Record." On June 8, 2021, the Motion to Strike
was granted, and the Supplement to Record has been given no consideration in the
c�
development of this Final Order.
The Initial Brief was timely filed on May 20, 2021. Appellees' Answer Briefs 0
were timely filed on June 22, 2021. On June 24, 2021, Appellant filed a Motion for a 5
5-Day Extension of Time to File the Reply Brief, and on that same day the
�i
undersigned entered an Order to Show Cause directing Appellees to explain the
basis for any objection to the Motion. Upon review of the response to the Order to
2
Show Cause, the Motion for a 5-Day Extension of Time was granted, and the Reply
Brief submission date was extended to July 6, 2021. Appellants' 22-page Reply Brief
was thereafter timely filed on that date, accompanied by a Motion to Exceed Page
Limit.
On July 12, 2021, Stuart Schaffer, a party to this proceeding, filed a Motion to
Appear Pro Se and Participate in the Oral Argument. Also, on July 12, 2021,
Appellants filed a Notice of Supplemental Authority of the Final Order in Florida
Keys Media, LLC u. Monroe County Planning Commission, Case No. 16-0277 (Fla.
DOAH June 1, 2016).
Oral argument was heard by Zoom teleconference on July 13, 2021, at which ,-
Appellants' Motion to Exceed Page Limit and Mr. Schaffer's Motion to Appear Pro
Se and Participate in the Oral Argument were granted. Appellees were also granted
c�
3
Packet Pg. 1695
J.3.f
75
leave to file a two-page response to the Florida Keys Media Final Order, which was
filed on July 19, 2021.
ISSUES
c14
Appellants raise five issues on appeal: (1) that the Commission erred in 6
approving the Application despite there being no competent substantial evidence of
U
LKCCC's financial capacity to develop the property; (2) that the Commission erred
in approving the Application despite there being no competent substantial evidence
that the project will meet the "local needs" requirement of the MCC; (3) that the
Commission's Public Meeting denied Appellants due process, and was
fundamentally unfair; (4) that the Commission erred in approving the Application
U
despite the failure of the project to comply with the "phasing and aggregation" 0
0
requirements of the MCC for reserved outparcels; and (5) that the Commission 0
erred in approving the Application despite the failure of the project to comply with, 5
and the project's inconsistency with, the Lower Keys Livable CommuniKeys Plan
�i
("CommuniKeys Plan").
2
BACKGROUND
LKCCC proposes the development of 88 multifamily deed-restricted affordable
employee housing dwelling units at the intersection of Overseas Highway/U.S.
Highway 1 and South Point Drive on Sugarloaf Key, near approximate mile marker
16.7, oceanside (the Project). The general description of the Project is as follows:
Dockside consists of 28 units [in one building with three
connected sections] on a parcel of 1.95 acres on the west
side of S. Point Drive, with the Landings [60 units in
seven structures] on a parcel of 3.34 acres on the east of
South Point Drive, adjacent to a parcel which is not part
of this project. Also on the western side of the Dockside
parcel, there is another parcel, also not a part of the
project.
The Project is proposed with a new entrance to U.S. Highway 1 ("U.S. 1") at the
Landings side that will serve as the primary and only entrance to the Landings.
c�
4
Packet Pg. 1696
J.3.f
75
The new entrance is designed with right turn in and right turn out lanes, and a
separate left turn lane for south-bound traffic.
The existing South Point Drive entrance from U.S. 1 is designed to add a right
turn in deceleration lane, a right turn out acceleration lane, and a left turn queuing
CN
lane. A new roundabout is proposed for South Point Drive, designed to slow traffic 6
along South Point Drive and direct traffic into Dockside.
U
A new bus stop is proposed for South Point Drive to serve public transit and
school busses.
Evidence in the Record of the Commission Public Meeting
The Application was filed on August 14, 2020, by Donald Leland Craig, AICP,
U
and Erica Sterling of Spottswood, Spottswood, Spottswood & Sterling, PLLC, 0
0
seeking issuance of a major conditional use permit pursuant to 0
section 110-70, MCC. 5
A major conditional use permit is necessary pursuant to section 130-93(c)(9),
�i
MCC, which requires dwelling units involving more than 18 units, designated as
employee housing, be approved by the Commission as a major conditional use
permit.
On October 1, 2020, a public community meeting was held in accordance with
section 110-70(c), MCC.
On or about December 7, 2020, the staff of MCPERD filed a supplemental Staff
Report in the Commission's record of this proceeding, containing a review of
pertinent Monroe County Comprehensive Plan and MCC provisions, and
recommending approval of the Application, subject to recommended conditions of
approval.
The Public Meeting was properly noticed and set for December 16, 2020. On that
date, the Commission conducted a quasi-judicial hearing on the Application.
At the Public Meeting, the Commission was represented by John J. Wolfe,
Esquire. Brad Stein, the Planning Development Review Manager, who was accepted
as an expert in planning, presented the supplemental Staff Report to the
c�
5
Packet Pg. 1697
J.3.f
75
Commission. Testifying at the Public Meeting were the following representatives
and professional consultants of LKCCC: Donald Craig, AICP; Steven Kirk
President of the managing member of LKCCC; Karl Peterson, P.E., LKCCC's traffic
engineer; and Harry Delashmutt, LKCCC's environmental and biological resources
expert. Offering testimony on behalf of Monroe County was Emily Schemper, Senior d
Director of Planning and Environmental Resources, who was accepted as an expert
U
in planning; Michael Roberts, Assistant Director of Environmental Resources, who
was accepted as an expert in biology and environmental resources; and Mr. Stein.
Testimony was taken from 24 members of the public, mostly nearby residents,
with five in favor, and 19 in opposition to the Application.
Andrew Tobin, Esquire, appeared on behalf of Appellants, and provided oral
U
legal argument. Also appearing on behalf of Appellants was Stuart Schaffer, 0
0
President of the Sugarloaf Shores Property Owners Association; Jack Marchant, 0
representing South Point Homeowners, LLC; John Coley, a party; Bill Waldrop, a 5
party representative; and expert witnesses Juan Calderon, P.E., a professional
�i
traffic operational engineer; Max Forgee, a planner; Phil Frank, an environmental
consultant; and James Carras, a financial consultant. Several of Appellants'
2
speakers submitted written reports that were in the record before the Commission.
The Resolution identified the following evidence as having been presented at the
Public Meeting, which was incorporated and transmitted as part of the record:
1. Major conditional use permit development application
received by the [MCPERD] on August 14th, 2020;
2. Site plan ("Site Plan") prepared by PQH Group Design
Inc., signed-and-sealed by Aldo Minozzi, AIA, dated/on
October 19th, 2020;
3. Building elevations ("Building Elevations") prepared by
PQH Group Design Inc., signed-and-sealed by Aldo
Minozzi R.A., dated/on October 19th, 2020;
4. Building floor plans ("Building Floor Plans") prepared
by PQH Group Design Inc., signed-and-sealed by Aldo
Minozzi R.A., dated/on July 31, 2020;
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5. Drainage plan ("Drainage Plan") prepared by GRAEF
(GRAEF USA), signed-and-sealed by Nelson H. Ortiz,
P.E., dated/on October 21, 2020;
6. Photometric plan ("Photometric Plan") prepared by
PQH Group Design Inc., signed-and-sealed by Thomas C. N
Nielsen, P.E., dated/on October 19th, 2020; 6
0
7. Landscape plan ("Landscape Plan") signed-and-sealed cM
by Brown & Crebbin Design Studio Inc., by/via Richard
Brown, FRLA, dated/on October 22nd, 2020;
8. Existing conditions report ("Existing Conditions
Report" or "ECR") prepared by Biosurveys, Inc., signed by
Harry DeLashmutt, March 16th, 2020;
0
9. Boundary survey ("Boundary Survey") by Florida Keys U
0
Land Surveying, LLC, signed-and sealed by Eric A.
Isaacs, P.S.M., dated/on a revised date of July 29th, 2020; 0
10. Traffic study ("Traffic Study") by KBP Consulting,
Inc., signed-and-sealed by Karl B. Peterson, P.E., dated
December 2019, and furthermore updated dated
July 2020 and December 2020;
11. Sworn testimony of representatives of the property
owner and the property owner's professional consultants,
including but not limited to Donald Craig, AICP, Harry
Delashmutt, Karl Peterson, P.E., Steven Kirk, and Nelson
Ortiz, P.E.;
12. Sworn testimony of MCPERD professional staff,
including but not limited to the sworn testimony of the
Department's Senior Director Emily Schemper, the sworn
testimony of the Assistant Director of the Department's
Environmental Resources Office Michael Roberts, and
sworn testimony of the Department's Development
Review Manager Bradley Stein;
13. Written protest request forms from members of the
public, more particularly contained in the Department's
file maintained for the instant development
application/request for hearing and consideration of the
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subject major conditional use permit application received
from the property owner;
14. Written public comment from members of the public,
more particularly contained in the Department's file
maintained for the instant development N
application/request for hearing and consideration of the d
subject major conditional use permit development 0
application received from the property owner; ccu
15. Sworn testimony of various members of the public
speaking in support of and speaking in opposition to the
property owner's development application;
16. A two-page (2-page) letter from counsel for certain
members of the public, submitted by Andrew Tobin, Esq.,
dated December 11th, 2020, and oral legal argument of U
0
Mr. Tobin;
0
17. Additional miscellaneous documents contained in the
Department's file maintained for the instant development
application/request for hearing and consideration of the
subject major conditional use permit development
application received from the property owner;
18. Advice and counsel of John J. Wolfe, Esq., counsel to
the [ ] Commission.
2
At the conclusion of the Public Meeting, the Commission voted unanimously to 0
approve the Application. That decision is memorialized in the Resolution, rendered
on January 8, 2021. The Resolution made the following "initial" findings of fact:
1. The subject property is located in the Suburban
Commercial ("SC") Land Use ("Zoning") District; and
2. The subject property is located the Mixed
Use/Commercial ("MC") Future Land Use Map ("FLUM")
category; and
3. The subject property is located within an area designed
Tier III ("Infill Area"); and
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4. Pursuant to [MCC] Section 130-93(c)(9), the proposed
development shall require a major conditional use permit;
and
5. [MCC] Section 110-67 furnishes the standards which
are applicable to all conditional uses. When considering N
applications for a conditional use permit, this tribunal d
shall consider the extent to which:
U)
M
U
(a) The conditional use is consistent with the purposes,
goals, objectives and policies of the Comprehensive Plan
and this [MCC];
n
(b) The conditional use is consistent with the community
character of the immediate vicinity of the parcel proposed
for development;
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0
(c) The design of the proposed development minimizes
r.
adverse effects, including visual impacts, of the proposed 0
use on adjacent properties; 5
(d) The proposed use will have an adverse effect on the
value of surrounding properties;
(e) The adequacy of public facilities and services;
(f) The applicant for conditional use approval has the
financial and technical capacity to complete the
development as proposed and has made adequate legal
provision to guarantee the provision and development of
any improvements associated with the proposed
development;
(g) The development will adversely affect a known
archaeological, historical or cultural resource;
(h) Public access to public beaches and other waterfront
areas is preserved as a part of the proposed development;
and
(1) The proposed use complies with all additional
standards imposed on it by the particular provision of the
[MCC] authorizing such use and by all other applicable
requirements; and
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6. Development shall be consistent with the [MCC]; and
7. Development shall be consistent with the Monroe
County Comprehensive Plan; and
8. Development shall be consistent with the Principles for CN
Guiding Development in the Florida Keys Area of Critical d
State Concern.
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The Resolution then made the following "further initial" findings of fact and
conclusions of law:
1. The property owner's development application is
consistent with the provisions and intent of the Monroe
County Year 2030 Comprehensive Plan, specifically:
0
A. The development is consistent with the purpose of U
0
the Mixed Use/Commercial ("MC") future land use map
r.
category, as set forth in Policy 101.5.6; and 0
B. The development is consistent with the future land
use densities and intensities, as set forth in
Comprehensive Plan Policy 101.5.25.
2. The property owner's development application is
consistent with the provisions and intent of the [MCC],
specifically:
2
A. With execution of attached conditions, the 0
development is consistent with the purpose of the LM
Suburban Commercial ("SC") Land Use ("Zoning")
District, as set forth in [MCC] Section 130-46; and
B. With execution of attached conditions, the land uses
of the development are permitted within the Suburban
Commercial ("SC") Land Use ("Zoning") District, as set
forth in [MCC] Section 130-93; and
C. With execution of attached conditions, the
development meets all of the standards for a
conditional use permit as set forth in [MCC] Section
110-67; and
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3. The property owner's development application is
consistent with the Principles for Guiding Development in
the Florida Keys Area of Critical State Concern.
The Resolution concluded by expressing the Commission's concurrence with the
advice and counsel of its legal counsel; the documentary and testimonial contentions C14
d
of LKCCC in support of the Application; and the recommendations, findings, and 0
M
conclusions of the MCPERD's professional staff, and resolved that: U
Following considered review of the full record before it,
based upon competent substantial evidence in the record,
more particularly referenced above in the foregoing
prefatory and operative recitals, prefatory and operative
findings of fact, and prefatory and operative conclusions of
law, all detailing said evidence, and detailing the [ ]
Commission's concurrence with particular oral assertions U
0
of law and contentions or determinations of fact and law
in the record, the [ ] Commission hereby approves the 0
property owner's development application requesting 5
approval of issuance of a major conditional use permit.
The Application approval was made subject to the following conditions:
1. The proposed development is currently in compliance
with Monroe County Comprehensive Plan Policies
301.1.1, 301.2.1, 301.2.2, 301.2.3 and 301.2.4, as well as
[MCC] Sections 114-2(a)(1)(a.), (b.) and (c.). There is
currently adequate roadway capacity available at this
time, but this shall not guarantee the adequacy or
availability of public facilities at subsequent stages of
development review. The applicant/property owner hereby
acknowledges and agrees that any traffic level of service
conditions in the development order are preliminary, and
only represent a conditional concurrency determination. A
final concurrency review shall [be] completed during
building permit review to ensure adequate roadway
capacity is confirmed and the adopted level of service is
maintained. In areas of the County that are served by
marginal or inadequate facilities, developments may be
approved, provided that the development in combination
with all other permitted development will not decrease
travel speed by more than five percent (5%) below Level- ..
of-Service ("LOS") C, and mitigation is provided.
Mitigation may be in the form of specific improvements or
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proportioned shared contribution towards improvements
and strategies identified by the County, and/or by the
Florida Department of Transportation ("FDOT") to
address any level of service degradation beyond LOS C
and/or deficiencies. The applicant shall submit evidence of
an agreement between the applicant and the FDOT for C14
inclusion in any contract or agreement for improvements d
to U.S. Highway 1. For roadway improvements required, 0
the applicant/property owner may utilize: tM
a. The necessary facilities and services will be in place at
the time a development permit is issued; or
b. The necessary facilities and services are in place at
the time a certificate of occupancy, or its functional
equivalent is issued. Prior to commencement of
construction, the applicant shall enter into a binding and
legally enforceable commitment to the County to assure
construction or improvement of the facility; or
c. A binding executed contract in place at the time a
permit is issued which provides for the commencement
of the actual construction of the required facilities or
provision of services; or
d. An enforceable development agreement guaranteeing
that the necessary facilities and services will be in place
with the issuance of a permit. An enforceable
development agreement may include, but is not limited 0
to, development agreements pursuant to Section
163.3220, Florida Statutes, or an agreement or
development order issued pursuant to Chapter 380,
Florida Statutes; or
e. A proportionate share contribution or construction
that is sufficient to accomplish one or more mobility
improvement(s) that will benefit a regionally significant
transportation facility. A proposed proportionate fair-
share mitigation shall be reviewed pursuant to Section
126-2, [MCC].
2. Prior to issuance of the building permit, a Notice of
Intent from the FDOT for the proposed ingress and egress
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75
directly from U.S. Highway 1 for the Landings portion of
the property owner's project must be provided.
3. Prior to issuance of a Certificate of Occupancy for any
dwelling units within the Landings portion of the
property owner's project, an issued FDOT permit for the C14
proposed ingress and egress directly from U.S. Highway 1 d
for the Landings portion of the project must be provided. 0
M
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4. If the FDOT does not approve the proposed new access
point on U.S. Highway 1 for the Landings portion of the
project, the property owner's project will be required to
come before the [ ] Commission as an Amendment to the
subject major conditional use permit.
5. Prior to issuance of building permit(s), the
applicant/property owner must obtain 88 Rate of Growth U
0
Ordinance ("ROGO") allocations, either through a
reservation approved by the Monroe County Board of 0
County Commissioners, or through the permit allocation 5
system quarterly application process.
6. Prior to the issuance of a building permit(s) the fencing
must comply with [MCC] Section 114-13.
7. Prior to the issuance of a building permit(s) for any
signage, all proposed signs must comply with [MCC]
Chapter 142.
0
8. Prior to the issuance of a building permit(s) all LM
4q
standards and requirements of the American with
Disabilities Act ("ADA") must be met.
9. The scope of work has not been reviewed for compliance
with Florida Building Code prior to the issuance of
building permit(s), new development and structures shall
be found in compliance by, including but not limited to,
the Monroe County Building Department, the Monroe
County Floodplain Administrator, and the local Office of
the Fire Marshal.
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On February 5, 2021, Appellants timely appealed the Commission's decision. On
February 11, 2021, the appeal was referred to DOAH for briefing and oral
argument.
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LEGAL DISCUSSION 6
Jurisdiction
M
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Pursuant to a contract between DOAH and Monroe County, DOAH has
jurisdiction to review by appeal the action of the Commission pursuant to section
102-213, MCC.
Standard of Review
U
In rendering a final order, the undersigned is subject to the following standard of 0
0
review:
Within 45 days of oral argument, the hearing officer shall
render an order that may affirm, reverse or modify the
order of the planning commission. The hearing officer's
order may reject or modify any conclusion of law or
interpretation of the county land development regulations
or comprehensive plan in the planning commission's
order, whether stated in the order or necessarily implicit
in the planning commission's determination, but he may
not reject or modify any findings of fact unless he first
determines from a review of the complete record, and
states with particularity in his order, that the findings of
fact were not based upon competent substantial evidence
or that the proceeding before the planning commission on
which the findings were based did not comply with the
essential requirements of the law.
0
§ 102-218(b), MCC.
The standard of review under section 102-218(b), MCC, has been applied to
determine whether the Commission "applied the correct law." Haines City Cmty.
Deu. u. Heggs, 658 So. 2d 523, 530 (Fla. 1995); see also Miami-Dade Cty. u.
Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003); Wolk u. Bd. of Cty. ..
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Comm'rs, 117 So. 3d 1219, 1223-24 (Fla. 5th DCA 2013). The correct law may derive
from the MCC. Wolk, 117 So. 3d at 1224.
When used as an appellate standard of review, competent substantial evidence
has been construed to be "legally sufficient evidence" or evidence that is "sufficiently
It-
CN
relevant and material that a reasonable mind would accept it as adequate to d
support the conclusion reached." DeGroot u. Sheffield, 95 So. 2d 912, 916 (Fla.
U
1957); see also Town of Manalapan u. Gyongyosi, 828 So. 2d 1029, 1032 (Fla. 4th
DCA 2002)("The `competent substantial evidence' standard of review ... `is
tantamount to legally sufficient evidence."'). So long as there is competent
substantial evidence supporting the findings made by the Commission in reaching
its decision, those findings will be sustained. See, e.g., Fla. Power & Light Co. V. City
U
of Dania, 761 So. 2d 1089, 1093 (Fla. 2000); Collier Med. Ctr., Inc. u. Dept of HRS, 0
0
462 So. 2d 83, 85 (Fla. 1st DCA 1985). Whether the record also contains competent 0
substantial evidence to support a different result is irrelevant. Clay Cty. u. Kendale
Land Deu., Inc., 969 So. 2d 1177, 1181 (Fla. 1st DCA 2007); Fla. Power & Light Co.,
�i
761 So. 2d at 1093; Educ. Deu. Ctr., Inc. u. City of W. Palm Bch. Zoning Bd. of App.,
541 So. 2d 106, 108 (Fla. 1989). The scope of review regarding the competent
2
substantial evidence standard requires only that the undersigned:
review the record to assess the evidentiary support for the
agency's decision. Evidence contrary to the agency's 0
decision is outside the scope of the inquiry at this point,
for the reviewing court above all cannot reweigh the "pros
and cons" of conflicting evidence. While contrary evidence
may be relevant to the wisdom of the decision, it is
irrelevant to the lawfulness of the decision. As long as the
record contains competent substantial evidence to support
the agency's decision, the decision is presumed lawful and
the court's job is ended.
Dusseau u. Metro. Dade Cty. Bd. of Cty. Commis, 794 So. 2d 1270, 1276 (Fla. 2001).
In determining whether the Commission's decision is supported by competent
substantial evidence, the hearing officer cannot "second-guess" the wisdom of the
decision, reweigh conflicting testimony, or substitute his or her judgment for that of
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the Commission as to the credibility of witnesses. Haines City Cmty. Deu. u. Heggs,
658 So. 2d at 530. Furthermore, the issue is not whether the Commission's decision
is the best decision, the right decision, or even a wise decision. "These are technical
and policy-based determinations properly within the purview of the [Commission]."
CN
Town of Manalapan u. Gyongyosi, 828 So. 2d at 1032. In sum, the undersigned's d
function here is to determine whether the Commission had before it any competent
U
substantial evidence supporting the findings in the Resolution, not whether there is
competent substantial evidence to support a contrary position. Fla. Power & Light
Co., 761 So. 2d at 1093; Educ. Deu. Ctr., Inc., 541 So. 2d at 108.
Issues on Appeal
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I. Whether the Commission had competent substantial evidence of LKCCC's 0
financial capacity to develop the property.
Section 110-67(f), MCC, provides that:
When considering applications for a conditional use
permit, the Planning Director and the Planning
Commission shall consider the extent to which:
2
(f) The applicant for conditional use approval has the
2
financial and technical capacity to complete the
development as proposed and has made adequate legal
provision to guarantee the provision and development of
any improvements associated with the proposed
development[.]
At paragraph 5(f) of the Resolution's initial findings of fact, the Commission
0
determined that:
The applicant for conditional use approval has the
financial and technical capacity to complete the
development as proposed and has made adequate legal
provision to guarantee the provision and development of
any improvements associated with the proposed
development[.]
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Appellants argue that "the County's Staff Report concludes that `Staff has no
evidence to support or disprove the applicant's financial and technical capacity."'
However, the issue is not whether Monroe County staff had competent substantial
evidence to support its recommendation, but rather whether the Commission had
CN
competent substantial evidence to support its decision. d
Here, the Commission's finding that LKCCC has the financial capacity to
U
complete a development as proposed was supported by evidence of property
ownership, and by evidence that the project had been approved for funding by the
Florida Housing Finance Corporation (FHFC), which performs a financial analysis
as a condition of its funding application review. The FHFC acknowledged, in its
July 17, 2020, Order Granting Waiver of Rule 67-48.0072(21)(b), that LKCCC "was
U
selected to receive State Apartment Incentive Loan (SAIL) funding and 9% Housing 0
0
Tax Credits under Request for Applications (RFA) 2018-115, to assist in the
construction of a workforce housing Development in Monroe County, Florida." That
evidence is sufficient to establish that the Project is financially supported.
�i
James Carras was retained by Appellant, Lower Density for Sugarloaf, LLC, to
"conduct the financial feasibility analysis of the Dock Side and Landings projects."
2
Mr. Carras has extensive experience in consulting and teaching community
economic development, including affordable housing finance. He has been certified
as an economic development finance professional by the National Development
Council. He has taught at Harvard University for the last seven years in the area of
Urban Development and Financing Affordable Housing, and previously taught
similar courses at Tuffs University, University of South Florida, and MIT. His
clients have included public agencies, nonprofit development organizations, and
private developers, and his work for those clients has included preparing financing
applications, including low-income housing tax credits and other financing
incentives and options. Mr. Carras was asked to model whether the development
proposed by LKCCC, as well as potential alternative developments, were financially
feasible. At the Public Meeting, Mr. Carras testified that:
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the project as proposed in terms of the 88 units, despite
the higher construction costs in 2020 and lower value of
the credits the project is still financially feasible, but also
the project is financially feasible at a lower total number
of units.
Appellants argue that Mr. Carras was "cut off," and that he may have said d
something different if given more time. However, his statement was clear, direct,
U
and, by his own testimony, supported by his modeling. Thus, it constitutes
competent substantial evidence upon which the Commission was entitled to rely of
LKCCC's financial capacity to complete the development as proposed. The
Commission's decision did not depart from the essential requirements of the law.
0
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II. Whether the Commission had competent substantial evidence that the Project 0
will meet the "local needs" reauirement of the MCC.
At paragraph 1 of the Resolution's initial findings of fact, the Commission
determined that "[t]he subject property is located in the Suburban Commercial
(`SC') Land Use (`Zoning') District[.]"
Section 130-46, MCC, provides that "[t]he purpose of the [Suburban Commercial]
district is to establish areas for commercial uses designed and intended primarily to
serve the needs of the immediate planning area in which they are located. This
2
0
district should be established at locations convenient and accessible to residential
0
areas to reduce trips on U.S. L"
Section 130-93, MCC, provides, in pertinent part, that:
(c) The following uses are permitted as major conditional
uses in the Suburban Commercial district subject to the
standards and procedures set forth in Chapter 110,
Article III:
(3) Institutional residential uses involving 20 or more
dwelling units or rooms; provided that:
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a. Access to U.S. 1 is by way of:
1. An existing curb cut;
2. A signalized intersection; or
3. A curb cut that is separated from any other curb cut on
the same side of U.S. 1 by at least 400 feet[.] N
6
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(9) Attached and detached dwellings involving more than
18 units, designated as employee housing as provided for
in section 139-1.
At paragraph 2 of the Resolution, the Commission further determined that:
The property owner's development application is
consistent with the provisions and intent of the [MCC], U
specifically:
0
0
A. With execution of attached conditions, the development
is consistent with the purpose of the Suburban 5
Commercial ("SC") Land Use ("Zoning") District, as set
forth in [MCC] Section 130-46; and
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B. With execution of attached conditions, the land uses of
the development are permitted within the Suburban
Commercial ("SC") Land Use ("Zoning") District, as set
forth in [MCC] Section 130-93; ...
The proposed development site is in an established SC District. Thus, issues of
whether the SC District was "established at locations convenient and accessible to
residential areas to reduce trips on U.S. 1" were resolved with the adoption of
section 130-46, MCC, and are not at issue here.
Brad Stein, Monroe County's Planning Development Review Manager, testified
that "the proposed conditional use is consistent with the purposes, goals, objectives,
and policies of the comprehensive plan and this land development code, including
the density for affordable housing." The staff report referenced by Mr. Stein U-
that that "[t]he proposed employee housing dwelling units are an allowed use
with the SC district, and serve the affordable housing needs of Monroe County,
including the Lower Keys area."
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The staff report and expert opinion of Mr. Stein constitute competent substantial
evidence of the development's service of the needs of the immediate planning area.
See Weyerhaeuser NR v. City of Gainesville, Case No. 20-0581, FO at 12 (Fla. DOAH
May 5, 2021)(staff analysis and expert opinions of record are competent substantial
N
evidence supporting a local government's decision); PGSP Neighbors United, Inc. V. d
City of St. Petersburg, Case No. 20-4083, FO at 19 (Fla. DOAH Mar. 3, 2021; Fla.
U
DEO Apr. 1, 2021)("The City Council properly relied upon the Staff Report in
adopting the Ordinance, which further qualifies as competent, substantial
evidence.").
Furthermore, as argued by LKCCC, the Monroe County Comprehensive Plan
and the CommuniKeys Plan support that the proposed development meets the
U
needs of the immediate planning area. Objective 10 1.19 of the Monroe County 0
0
Comprehensive Plan requires a "balancing of local community needs with all 0
Monroe County communities." The CommuniKeys Plan includes a direct planning
area that extends from mile marker 14.2 to mile marker 29, and establishes that
�i
"the Lower Keys LCP planning area serves primarily as a bedroom community
supporting more mature and intensely developed employment centers and
commercial areas in Stock Island, Key West, and the Upper Keys." The staff report
notes that the SC district and the proposed Project serves the affordable housing
needs of the Lower Keys planning area as a whole.
There was competent substantial evidence to support the determination that the
immediate planning area to be served by the SC district extended beyond the
discrete confines of Sugarloaf Key. The SC district was created "to establish areas
for commercial uses designed and intended primarily to serve the needs of the
immediate planning area in which they are located." In performing its duty of
balancing local community needs, the Commission was obliged to apply and
harmonize the relevant standards applicable to its decision. In that regard: ,-
Rules of statutory construction...apply to municipal
ordinances and city charters. ... Appellant argues that ..
this case implicates the rules of construction that specific
provisions control over general ones and that one
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provision should not be read in such a way that it renders
another provision meaningless. Both rules are well-
established. See Murray u. Mariner Health, 994 So. 2d
1051, 1061 (Fla. 2008). Another rule of construction
relevant to this issue is that all provisions on related
subjects be read in pari materia and harmonized so that N
each is given effect. Cone u. State, Dept of Health, 886 So. d
2d 1007, 1010 (Fla. 1st DCA 2004).
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Katherine's Bay, LLC u. Fagan, 52 So. 3d 19, 28 (Fla. 1st DCA 2010).
Based on the above, the Commission's approval of affordable workforce housing
for persons employed outside of the bounds of Sugarloaf Key was based on its
analysis that the immediate planning area to be served by the SC district included
more mature and intensely developed employment centers and commercial areas.
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Its decision was based on competent substantial evidence provided by the 0
0
documentary submissions, the staff reports, and testimony of its staff and experts.
The Commission's decision did not depart from the essential requirements of
the law.
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III. Whether the Commission's Public Meetin, denied Appellants due process and
was fundamentally unfair.
Appellants object that, at the December 16, 2020, Public Meeting, they were
2
0
limited to six minutes for their legal representative, three minutes apiece for �
members of the public, including residents and other representatives, "and a little
longer for experts." Meanwhile, "[t]he Planning Commission allows the `parties' -
the Staff and the Applicant - as much time as they need to present competent
substantial evidence in support of or in opposition to an application and allows time
for rebuttal; the `parties' are allowed to call and question witnesses and have the
ability to qualify witnesses as experts to bolster their credibility."
Under the MCC, the review criteria are limited and do not include consideration
of whether procedural due process was afforded by the Commission. See § 102-
218(b), MCC; see also Osborn u. Monroe Cty. Planning Comm'n, Case No. 03-4720,
FO at 33-34 (Fla. DOAH Nov. 1, 2004)("the review criteria are limited and do not
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include consideration of whether procedural due process was afforded by the
Commission"); Handte u. Monroe Cty. Planning Comm'n, Case No. 19-5649, FO at 6
(Fla. DOAH Aug. 12, 2020) ("Unlike the three-tier judicial review of final
administrative actions by a circuit court, procedural or due process violations may
c14
not be considered. ... Therefore, Appellants' argument that procedural due process d
violations occurred during the appeal hearing in front of the Commission, is not
U
within the scope of this appeal.").
As set forth herein, the Commission allowed the public to participate in the
proceeding consistent with its established procedures. It further allowed the
Appellants individually, and their counsel and experts, to appear and to submit
documentary evidence. Thus, the Commission did not depart from the essential
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requirements of the law in taking its action.2 Nonetheless, the specific argument
0
raised by Appellants that they were denied due process is not within the scope of 0
this appeal.
csi
IV. Whether the Project complies with the "phasing, and aggregation" requirements
of the MCC for Reserved Outparcels.
Appellants argue that the failure of LKCCC to include two reserved outparcels
as "proposed phases of development," and to include them in the Project traffic
2
0
study, violated the "phasing" and "aggregation" provisions of the MCC. LKCCC �
argues, on the other hand, that the outparcels are not part of the Project, and were
not submitted to the Commission for review or approval.
2 Appellants' argument appears to have been considered and rejected by the Fifth District Court of
Appeal, which has established that,in quasi-judicial hearings, the parties to the proceeding"must be 0
able to present evidence, cross-examine witnesses, and be informed of all the facts upon which the
(government agency) acts." Carillon Cmty. Residential u. Seminole Cty., 45 So. 3d 7, 11 (Fla. 5th iz
DCA 2010). However, the court was clear that adjoining landowners are not parties, and do not have X
due process rights to cross-examine witnesses. Rather, the court established that the right of 0
participation of adjoining landowners "does not,in any way, recognize a right on behalf of all ..
neighboring property owners to cross-examine any and all individuals who may speak for or against
a�
the zoning application. To recognize such a right on behalf of all`interested persons' would create a
cumbersome, unwieldy procedural nightmare for local government bodies."Id.
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Section 110-70, MCC, provides, in pertinent part, that:
(a) Applications for major conditional uses. An application
for a major conditional use permit shall be submitted to
the Planning Director in a form provided by the Planning
and Environmental Resources Department. The
application shall include: C14
6
U
(7) A community impact statement, including:
a. General description of proposed development:
1. Provide a general written description of the proposed
development; including any proposed phases of
development, the site size, the number and type of U
existing and proposed dwelling units, the amount and
type of existing and proposed nonresidential floor area,
and parking demand and capacities; ...
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e. Impact assessment on public facilities—transportation:
1. Provide a projection of the expected vehicle trip
generation; describe in terms of external trip generation
and average daily and peak hour traffic;
2. Provide a traffic study, if applicable, as specified in
Section 114-200[.]
Section 130-165, MCC, entitled Aggregation of Development, provides that:
Any development that has or is a part of a common plan
or theme of development or use, including, but not limited
to, an overall plan of development, common or shared
amenities, utilities or facilities, shall be aggregated for
the purpose of determining permitted or authorized
development and compliance with each and every
standard of this Land Development Code (includes
clearing limits) and for the purpose of determining the
appropriate form of development review.
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The Application provides that "the project [i.e., the 88-unit development] will be
built in one phase," and further provides that the outparcels are not part of the
Project. Other than speculation and argument that failure to consider the
outparcels as part of a phased or aggregated development would lead to an absurd
N
result, there was no competent substantial evidence offered to establish such. There 6
was no allegation of any overall plan of development or shared amenities, utilities,
U
or facilities between the Project and the outparcels, save the likelihood that the
outparcels would have to share an access point(s) onto U.S. 1.
Mr. Peterson, who has considerable experience in traffic engineering and
transportation planning in Monroe County, provided testimony, and a traffic impact
study that was included in the Application, and discussed at length at the
U
Commission meeting, which concluded that there is sufficient capacity on U.S. 1 to 0
0
accommodate the traffic associated with the Project, and that the study 0
intersections within the Project study area will operate at an acceptable level of 5
service. Mr. Peterson further testified that the data and assumptions upon which
�i
the traffic impact study was based, including its trip distribution calculations, were
consistent with Department of Transportation practices, and with the published
2
Monroe County Traffic Report Guidelines. Furthermore, he testified that the trip
generation calculations for the Project were developed consistently with a trip
generation manual published by the Land Use Institute of Transportation
Engineers that is widely considered to be the standard for estimating traffic
associated with various land use, and applied the most "robust" and trusted data
set. As to the "reserved" parcels, Mr. Peterson testified that nothing was planned for
those vacant parcels, and that, in his opinion, it is not unusual for vacant land to
not be considered in a traffic impact study and analysis. He further noted that when
those parcels are proposed for development, they will be evaluated and be subject to
Commission review in accordance with the conditions and guidelines required at U-
that time, a conclusion that was substantiated in the staff report recommended
action. Mr. Peterson provided competent substantial evidence to the Commission of
the Project's compliance with sections 110-70 and 130-165, MCC.
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Furthermore, the staff report discussed both the scope of the proposed Project
and the traffic element at length. Staff made no determination that the outparcels,
though depicted on the site plan, should be considered as part of a phased project, or
aggregated for the purpose of determining permitted or authorized development
N
and compliance with the MCC, including traffic elements. d
0
U)
cu
U
The Commission's decision was based on competent substantial evidence
provided by the documentary submissions, expert testimony, the staff report, and
testimony of its staff. The Commission's decision did not depart from the essential
requirements of the law.
0
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V. Whether the Project complies with, and is consistent with, the CommuniKeys 0
Plan.
In their final point on appeal, Appellants argue that the Project is not consistent
with the CommuniKeys Plan. Their argument relates primarily to density, though
their briefs touch on traffic impacts and community character as well.
As stated by Mr. Stein, the CommuniKeys Plan is "a balancing of policies and
priorities for the overall planning area to remain a low density primarily residential
community, as well as provide affordable housing in the community." As set forth
2
0
herein, the CommuniKeys Plan includes a planning area that extends from mile �
marker 14.2 to mile marker 29. In addition, the CommuniKeys Plan recognizes that
the planning area is tied to and is designed to support the employment centers and
commercial areas in Stock Island, Key West, and the Upper Keys. Monroe County
Comprehensive Plan Policy 1.2.1 directs Monroe County to recognize the FLUM
categories and the land use districts as the primary regulatory tool for evaluating
development proposals. As applied here, the Mixed Use/Commercial FLUM and SC
zoning together allow the development of employee housing with more than 18
units as a major conditional use, without the necessity of text or map amendments,
and without the need for a variance.
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Mr. Stein also noted the Project's compliance with CommuniKeys Plan
objective 4.2, by which "Monroe County shall encourage affordable and work force
housing in areas identified for appropriate for higher intensity commercial mixed
use and residential development," and policy item 4.2.2., by which "Monroe County
N
will conduct an analysis to identify sites for affordable and workforce housing in d
areas identified in the FLUM as residential hyde [sic] and mixed use commercial
U
land use."
The CommuniKeys Plan identifies properties that are appropriate for medium to
high-density residential development or commercial development under Monroe
County's Comprehensive Plan, and the Project site is specifically mapped as an area
that is appropriate for medium to high density residential development.
U
As stated by Ms. Schemper, and detailed in the staff report, the Project density 0)
0
is in compliance with the general density standards in the CommuniKeys Plan. The 0
general density standards apply to the entire CommuniKeys Plan community, 5
which stretch over a number of islands across a number of miles. The Project area is
�i
specifically identified as a medium to high density potential development area, and
is not considered a restricted low-density development area. Ms. Schemper further
2
testified that the CommuniKeys Plan indicates that the Commission should use the
current FLUM when evaluating development proposals. Although the
CommuniKeys Plan includes policies and priorities for the overall planning area to
maintain a low density primarily residential character, that overall community
includes specific areas with varying density requirements, including those for
affordable housing, and including the adjacent Sugarloaf Key neighborhood, which
is in a residential-medium category.
With regard to traffic and community character, both the record of the Public
Meeting, including the comprehensive traffic study, and the staff report were
replete with evidence of compliance with the traffic and community character
elements of the CommuniKeys Plan. Traffic has been previously discussed. As to
community character, there was ample evidence of restrictions and accommodations
made by LKCCC regarding building height, parking, buffers and expanded
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setbacks, architectural design, lighting, fencing and limitations on waterway access,
and other elements designed to accommodate the character of the existing
community. In response to inquiry, Ms. Schemper confirmed that LKCCC "is not
asking for any waivers or variances from our rules and regulations and is in
N
compliance with the code and all of its requirements," and that "they have actually d
exceeded them in certain cases as well," including those related to parking and
U
landscaping. Compliance with the traffic and community character elements of the
CommuniKeys Plan was supported with competent substantial evidence.
Appellants argue that, despite what adjoining landowners will see, the Project
will violate the "compatibility" provisions of section 163.3164(9), Florida Statutes,
which is "a condition in which land uses or conditions can coexist in relative
U
proximity to each other in a stable fashion over time such that no use or condition is 0
unduly negatively impacted directly or indirectly by another use or condition." 0
Appellants focus that argument on adverse traffic impacts from the proposed 5
development. The evidence, in the form of the traffic study, staff report, testimony
�i
of Mr. Peterson and staff, and discussion by the Commissioners, all constitute
competent substantial evidence that the Project will not "unduly negatively impact"
2
the existing residential uses of Sugarloaf Key.
Finally, Appellants argue that the Commission approval failed to take into
account whether the Project will serve the "local community," suggesting that the LM
residents of the proposed workforce housing should be limited to serving the needs
of the Lower Sugarloaf Community Center from mile marker 16 to mile marker 17.
As has been discussed and described herein, the record of the Commission's Public
Meeting and the staff report include extensive discussion of the extent and purpose
of the CommuniKeys Plan planning area. That evidence provides support for the
Commission's determination that the Project meets the criteria established by the
CommuniKeys Plan, including the local needs elements.3 The Commission's ,-
decision did not depart from the essential requirements of the law.
4i
3 Appellants' reliance on Florida Keys Media, LLC u. Monroe County Planning Commission, Case
No. 16-0277 (DOAH June 1, 2016), as support for a definition of the"local community," is misplaced.
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Conclusion
It is not the role of the undersigned to determine whether the action taken by
the Commission is the best means to accomplish Monroe County's objectives. As set
forth herein, the Commission applied the correct law, acted in accordance with
competent substantial evidence, and did not depart from the essential requirements d
of the law when it adopted the Resolution.
U
DECISION
Based on the foregoing, Resolution No. P35-20, which approved the issuance of a
major conditional use permit to LKCCC for the proposed development of 88
multifamily deed-restricted affordable employee housing dwelling units at the
0
intersection of Overseas Highway/U.S. Highway 1 and South Point Drive on U
0
0
LM
Sugarloaf Key, near approximate mile marker 16.7, oceanside, is affirmed in all
respects.
DONE AND ORDERED this 22nd day of July, 2021, in Tallahassee, Leon County,
Florida.
E. GARY EARLY
Administrative Law Judge
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this 22nd day of July, 2021.
In that case, the ALJ determined that a 190-foot-tall communications tower was aesthetically
incompatible with the surrounding residential area. After having described the project (tall tower,
noisy backup generator), and the specific documented evidence of the effect of the tower on property iz
values (evidence that is lacking here), the ALJ concluded that "the proposed tower would be X
incompatible with the surrounding residential area." He further determined that the"immediate 0
vicinity' applied not to whether the tower would serve the local community, as Appellants assert
here,but whether the tower was compatible with the character of the local community. The evidence
a�
in this case was sufficient to constitute competent substantial evidence that the Project, as designed,
will be compatible with the local residential community, aesthetically and otherwise.
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COPIES FURNISHED:
Peter H. Morris, Esquire Andrew M. Tobin, Esquire
Monroe County Attorney's Office Andrew M. Tobin, P.A.
1111 12th Street, Suite 408 Post Office Box 620
Post Office Box 1026 Tavernier, Florida 33070-0620 C14
Key West, Florida 33041-1026 d
Glenn Thomas Burhans, Esquire
Ilze Aguila, Senior Coordinator Stearns, Weaver, Miller, Weissler,
County of Monroe Alhadeff& Sitterson
Board of County Commissioners Suite 700
Suite 410 106 East College Avenue
2798 Overseas Highway Tallahassee, Florida 32301
Marathon, Florida 33050
0
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0
NOTICE OF FIGHTS TO JUDICIAL REVIEW 0
0
Pursuant to article VI, section 102-218(c), MCC, this Final Order is "the final
administrative action of the county." It is subject to judicial review by common law
petition for writ of certiorari to the circuit court in the appropriate judicial circuit.
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