Item J4 J.4
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.4
Agenda Item Summary #12103
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) of the Original Sixty (60) Affordable Housing Allocations, Consisting of Twelve (12)
Low-Income and Sixteen (16) Moderate-Income Affordable Housing 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"A", Revised
Plat of Amended Plat of Sugarloaf Shores Section F, Sugarloaf Key (Approximate Mile Marker
16.5), Currently Having Property Identification No. 00166976-011300, Until May 17, 2024.
ITEM BACKGROUND:
Lower Keys Community Center Corporation (the "Applicant") is requesting an extension of the
reservation of twenty-eight (28) of the originally reserved sixty (60) affordable ROGO allocations,
consisting of twelve (12) low-income and sixteen (16) moderate-income affordable housing
allocations pursuant to Monroe County Code Land Development ("LDC) Section 138-24(b)(2)
through May 17, 2024.
The Applicant originally proposed to develop the property with sixty (60) 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. 410-2018, reserving sixty (60) affordable ROGO allocations under LDC
Section 138-24(b)(2), consisting of 27 low-income and 33 moderate-income category allocations 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. 027-2020
extending the reservation to November 20, 2020. On January 20, 2021, the BOCC adopted
Resolution No. 030-2021 extending the reservation to November 20, 2021. On November 17, 2021,
the BOCC adopted Resolution No. 439-2021, 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 60-unit
development (the "development" or the "Project"), and has been pursuing the development,
including hosting three (3) community meetings to solicit feedback and ideas from property owners
Packet Pg. 1722
J.4
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
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 to the reservation of 12 low-income and 16
moderate-income affordable 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 in blue below.
Packet Pg. 1723
J.4
M,J Cwr:7MO
/ !v r rX 16407+
i
u �
Pr
i
v`"r/ ri iM I W �%". G/ l�ji�irl'�Jrf� r ie K �➢ k �'�i v/ I W F �II
uT9 r r;
/�� r I �/ 1/ Ir/l/^ �i"��% a ,�; , ✓ r Y, �.lo-��reb��*ors � �M �;�"
// �✓ ° I / ,, 1 r rvf,,, � �� Wlf(y � / YU p;�,n w 1N o W� r. fi
05
vflm
�0
�Jfv'i/'% J " � r/ � a r / �,�j�W�/ � ��✓ / �/ " �r,wm �,'U� d
/
✓ I �I� v
„v �+.III I e /, ''>'1 a�r ��; o„, W, r•vm` +' %�/�
5,�y�i a�rrYurSva I!' v gym, ;r lv� , f n. rW�rn+W�I�srJ fir
r„�, � °� ���j ,,,., � f� :,y,_ r W�' �f J7r�>7W, i� i,,.p r Is W`v` t✓��, ��;%����®,
The Applicant has also expressed interest in developing affordable housing units utilizing the
remaining thirty-two (32) affordable ROGO allocations in partnership with Rockland Key, LLC, the
owner of property located at 99 Calle Uno, East Rockland Key. A separate request for reservation of
those allocations will be submitted to the BOCC at a later meeting date.
Relevant Land Development Code Section:
Monroe County LDC 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 emplovee housing projects participatiLg 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;
Packet Pg. 1724
J.4
(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;
(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 adopted Resolution No. 410-2018, reserving sixty (60) affordable housing
allocations (27 low income and 33 moderate income) through November 20, 2019.
January 22, 2020 — The BOCC adopted Resolution No. 027-2020, extending the reservation of sixty (60)
affordable housing allocations (27 low income and 33 moderate income) through November 20, 2020.
January 20, 2021 — The BOCC adopted Resolution No. 030-2021, extending the reservation of sixty (60)
affordable housing allocations (27 low income and 33 moderate income) through November 20, 2021.
November 17, 2021 — The BOCC adopted Resolution No. 439-2021, extending the reservation of sixty (60)
affordable housing allocations (27 low income and 33 moderate income) through May 17, 2023.
CONTRACT/AGREEMENT CHANGES:
n/a
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
Resolution Extending Reservation of 28 affordable ROGO allocations
Reso 410-2018 Initial Reservation
Resolution 027-2020 Extension
Resolution 030-2021 Extension
Resolution 439-2021 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:
Packet Pg. 1725
J.4
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
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 11:29 AM
Peter Morris Completed 05/02/2023 4:38 PM
Purchasing Completed 05/02/2023 4:43 PM
Budget and Finance Completed 05/02/2023 5:00 PM
Brian Bradley Completed 05/02/2023 5:02 PM
Lindsey Ballard Completed 05/02/2023 5:04 PM
Board of County Commissioners Pending 05/17/2023 9:00 AM
Packet Pg. 1726
J.4.a
A �
2 RESOLUTION NO. -2023 W
3 CN
4 A RESOLUTION OF THE MONROE COUNTY BOARD OF COUNTY
5 COMMISSIONERS APPROVING THE RESERVATION EXTENSION
6 OF TWENTY-EIGHT (28) AFFORDABLE HOUSING ROGO
0
7 ALLOCATIONS CONSISTING OF TWELVE(12)LOW-INCOME AND 4-
8 SIXTEEN (16) MODERATE-INCOME CATEGORY ALLOCATIONS
9 FOR A PROPOSED AFFORDABLE-EMPLOYEE HOUSING
10 DWELLING UNIT DEVELOPMENT ON SUGARLOAF KEY ON
11 PROPERTY LEGALLY DESCRIBED AS TRACT"A",REVISED PLAT
12 OF AMENDED PLAT OF SUGARLOAF SHORES SECTION F.
13 CURRENTLY BEARING PROPERTY IDENTIFICATION NUMBER
14 00166976-011300, UNTIL MAY 17, 2024, FOR BUILDING PERMIT
15 ISSUANCE.
16 g
17 WHEREAS,the State of Florida and all local governments in the Florida Keys recognize the
18 need for affordable housing throughout the state and particularly in the Florida Keys where 2
19 developable land for housing is extremely limited and expensive; and
20 0
21 WHEREAS,the challenge of providing affordable housing opportunities in the Florida Keys
22 is one requiring sensible and responsive use of residential unit allocations, including implementation
23 of long-term preservation mechanisms; and
24 �
CU
25 WHEREAS, due consideration should be given to relevant factors such as the capacity for 00
26 allocation recipients to promptly transform allocation awards/reservations into finished and occupied
27 affordable-workforce housing units; and
28
29 WHEREAS, the developers have legitimate needs for some assurance that allocations are in �
30 fact and will remain available and/or justified for a reasonable time so that follow-through on initial U)
31 commitments will in fact be justified; and
32
33 WHEREAS, Section 138-24(b)(2) of the Monroe County Land Development Code
34 ("LDC") allows the Monroe County Board of County Commissioners ("Board", "BOCC", X
35 "Monroe County", or the "County") to authorize reservations for "specific affordable or
36 employee housing projects participating in a federal/state housing financial assistance or tax credit
37 program or receiving some form of direct financial assistance from the county upon written request 0
38 from the project sponsor and approved by resolution of the Board of County Commissioners"; and
39
E
c�
Packet Pg. 1727
J.4.a
I WHEREAS, at a regularly scheduled public meeting held on November 20, 2018,the BOCC
2 adopted Resolution No. 410-2018, reserving sixty (60) affordable ROGO allocations i under LDC
3 Section 138-24(b)(2), consisting of 27 low-income and 33 moderate-income category allocations
4 for the proposed affordable-employee dwelling unit development,to expire if building permits were U)
5 not obtained by November 20, 2019; and
6 0
7 WHEREAS, at a regularly scheduled public meeting held on January 22, 2020, the BOCC
8 adopted Resolution No. 027-2020, reserving twenty-seven (27) low-income category and thirty- 00
9 three (33) moderate-income category affordable ROGO allocations under LDC Section 138- 0
10 24(b)(2) , for the proposed affordable-employee housing dwelling unit development, to expire if W
11 building permits were not obtained by November 20, 2020; and
0
12 4-
13 WHEREAS, at a regularly scheduled public meeting held on January 20, 2021, the BOCC C
14 adopted Resolution No. 030-2021, reserving twenty-seven (27) low-income category and thirty-
15 three (33) moderate-income category affordable ROGO allocations under Section 138-24(b)(2) of
16 the Monroe County LDC, for the proposed affordable-employee dwelling unit development, to
17 expire if building permits were not obtained by November 20, 2021; and U)
18
19 WHEREAS, at a regularly scheduled public meeting held on November 17, 2021,the BOCC X_
20 adopted Resolution No. 439-2021, reserving twenty-seven (27) low-income category and thirty- U)
21 three (33) moderate-income category affordable ROGO allocations under Section 138-24(b)(2) of C
22 the Monroe County LDC, for the proposed affordable-employee dwelling unit development, to
23 expire if building permits were not obtained by May 17, 2023; and 2
CU
24 0
25 WHEREAS, Lower Keys Community Center Corporation (the "Applicant" or "LKCCC")
26 has been awarded Low Income Housing Tax Credit("LIHTC") financial assistance from the Florida
27 Housing Finance Corporation ("FHFC")to offset the costs of its proposed 60-unit development(the
28 "development" or the "project"); and
29 �
CU
30 WHEREAS, as part of the LIHTC application, the FHFC required the Applicant to 00
31 have obtained the necessary ROGO allocations ("ROGOs") and for Monroe County to execute a
32 verification that verifies that the applicant has obtained the necessary ROGOs; and
33
34 WHEREAS,Monroe County LDC Section 138-24(b)allows reservation of affordable ROGO
35 allocations by the Board for specific housing programs, which includes FHFC, LIHTC, and SAIL;
36 and
37
38 WHEREAS, on or about December 16, 2020, the Monroe County Planning Commission
39 approved the owner's request for a major conditional use permit for development of the proposed w
40 housing units on the property, via Resolution Nos. P35-20 and P36-20; and C
41 2
42 WHEREAS, on February 5, 2021, a group of property owners on Sugarloaf Key individually 0
43 and through the entities Sugarloaf Shores Property Owners Association Inc., South Point
44 Homeowners LLC, and "Lower Density for Lower Sugarloaf, LLU) (collectively "Neighborhood
45 Opponents") filed an administrative appeal of Planning Commission Resolution No. P35-20 to the
c�
i I.e., affordable-employee.
2of5
Packet Pg. 1728
J.4.a
I Florida Division of Administrative Hearings ("DOAH")P35-20, and attempted to perfect an appeal
2 of Planning Commission Resolution No. P36-20 to the BOCC; and
3
4 WHEREAS, on July 22, 2021, DOAH Administrative Law Judge ("ALJ") E. Gary Early
5 issued a Final Order in DOAH Case No. 21-0494 in favor of Monroe County and the Applicant and
6 against the Neighborhood Opponents and denied the appeal by the Neighborhood Opponents and 0
7 affirmed the Planning Commission's decision to issue major conditional use permit approval W
8 memorialized pursuant to Planning Commission Resolution No. P35-20; and 00
9 0
10 WHEREAS, on or about August 23, 2021,the Neighborhood Opponents then filed an appeal W
11 of the DOAH ALJ's Final Order to the Circuit Court appellate division. Before a decision from the E
12 Circuit Court could be reached,the Applicant and the Neighborhood Opponents on or about January 4-
13 3, 2023, agreed to settle their dispute through a Settlement Agreement recorded at Book 3208,Page
14 1980, Document No. 2403832, of the Official Records of Monroe County, in which those parties
15 mutually agreed to, inter alia, settle on up to twenty-eight(28)units of affordable employee housing
16 to be developed in a modified form on the subject property; and
17 U,
18 WHEREAS, on or about January 11, 2023,the Circuit Court case was dismissed, and also on
19 January 11, 2023,those of or associated with the Neighborhood Opponents `withdrew' their attempt i
20 to pursue an appeal of Planning Commission Resolution No. P36-20 to the BOCC; and U)
21
22 WHEREAS, LKCCC has been pursuing the project but is requesting a eighteen (18)-month
23 extension of the reservation; and 2
24 0
25 WHEREAS,the reservation of affordable housing allocations for the anticipated project, does
26 not exempt the project from applicable requirements for the Monroe County land development
27 regulations, Building Code, and other regulatory requirements; and
28
29 WHEREAS, LKCCC shall obtain all required approvals from the Monroe County Planning 0
CU
30 and Environmental Resources Department for the project; and 00
31 4-
32 WHEREAS, LKCCC shall obtain permits for the affordable-employee housing dwelling C
33 units by May 17, 2024; if the permit(s) are not issued, the allocations shall automatically revert by 2
34 operation of law to Monroe County;
35 a)
a�
36 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
37 COMMISSIONERS OF MONROE COUNTY, FLORIDA:
38
39 Section 1. The foregoing recitals, findings of fact, conclusions of law, and statements of X
40 purpose and legislative intent are true and correct, and are hereby incorporated as if fully set forth a
41 herein.
42 0
43 Section 2. The Monroe County Planning and Environmental Resources Department
44 ("Department") shall reserve twenty-eight(28) affordable housing ROGO allocations, consisting of
45 twelve (12) low-income and sixteen (16) moderate-income category allocations, for the Monroe
c�
3 of 5
Packet Pg. 1729
J.4.a
I County project on Tract"A", Revised Plat of Amended Plat of Sugarloaf Shores Section F, Sugarloaf
2 Key, for the above-referenced affordable-employee housing development until May 17, 2024.
3
4 Section 3. Interpretation. The interpretation of this Resolution, and all provisions of the
5 Monroe County Codes, Comprehensive Plan, floodplain management regulations, and Florida
0
6 Building Code whose interpretation arises out of, relates to, or is interpreted in connection with this
7 Resolution, shall be construed in favor of the Monroe County BOCC, and such interpretations shall W
®0
8 be entitled to great weight in adversarial administrative proceedings, at trial, and on appeal. N
9 0
10 Section 4. Severability,Partial Invalidity,and Survival of Provisions.If any provision
11 of this Resolution, or any section, subsection, or part or portion thereof, is held to be invalid or 0-
4-
12 unenforceable by any administrative hearing officer or court of competent jurisdiction, the invalidity
13 or unenforceability of such provision, or part or portion thereof, shall neither limit nor impair the
14 operation, enforceability, or validity of any other provisions of this Resolution, or any remaining
15 section(s),subsection(s),part(s),or portion(s)thereof.All other provisions,parts,and portions thereof
16 shall continue unimpaired in full force and effect. U)
17 a�
18 Section 5. Non-Reliance by Third-Parties. No person or entity shall be entitled to rely X
19 upon the terms, or any of them, of this Resolution to enforce or attempt to enforce any third-party U)
C
20 claim(s) or entitlement(s) to or benefit(s) of any service(s), term(s), or program(s) contemplated
21 hereunder; and
22
23 Section 6. The developer must obtain the building permits for the affordable/employee 0
24 housing units on or before May 17, 2024. 0
25 W
26 Section 7. The developer shall comply with all Monroe County requirements, all
27 applicable Building Code requirements, and any other oversight agencies.
28 �
29 Section 8. The professional staff of the Department and of the Monroe County Building �
30 Department are hereby authorized to process expeditiously permit related applications for the above 4-
31 referenced project when received.
32
33 PASSED AND ADOPTED at a regular meeting of the Board of County Commissioners of
34 Monroe County, Florida, held on the 171h day of May, 2023.
35
Mayor Craig Cates, District 1
Mayor Pro Tem Holly Merrill Raschein, District 5
Michelle Lincoln, District 2 W
James K. Scholl, District 3
David Rice, District 4
0
U)
BOARD OF COUNTY COMMISSIONERS 0
OF MONROE COUNTY, FLORIDA
a�
By. MONR E o ATTORNEY
Mayor Craig Cates .� �
y g ,� To FORM
4 of 5
.... _ ..._._
�^+ PErE� O I
ASESDate: P,�&ket Pg. 1730
0
(SEAL)
ATTEST: KEVIN MADOK, CLERK
0
0
0
w
AS DEPUTY CLERK 00
CN
0
E
0
L-
4-
a
u
x
.2
m
0
0
0
0
00
CN
4-
0
a
x
w
a
0
E
.a
u
5 of 5
Packet Pg. 1731
J.4.b
L-
RESOLUTION NO. 410 -2018
0
A RESOLUTION OF THE MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS APPROVING THE RESERVATION OF SIXTY (60)
AFFORDABLE CONSISTING OF 27 LOW INCOME AND 33 MODERATE
INCOME CATEGORY ROGO ALLOCATIONS FOR A PROPOSED g
EMPLOYEE DWELLING UNIT ON SUGARLOAF KEY FOR MONROE
COUNTY ON PROPERTY DESCRIBED AS TRACT "A", REVISED PLAT
OF AMENDED PLAT OF SUGARLOAF SHORES SECTION F, REAL
ESTATE NUMBER 00166976-011300 UNTIL NOVEMBER 20, 2019 FOR
BUILDING PERMIT ISSUANCE.
WHEREAS, the State of Florida and all local governments in the Florida Keys(each subject to Area 00
of Critical State Concern mandates relating to housing affordability) recognize the need for affordable
housing throughout the state and particularly in the Florida Keys where developable land for housing is
extremely limited and expensive; and
0
L-
WHEREAS, the challenge of providing affordable housing opportunities in the Florida Keys is one
requiring sensible and responsive use of residential unit allocations, including implementation of long-team g
preservation mechanisms;and
WHEREAS, due consideration should be given to relevant factors such as the capacity for allocation
recipients to promptly transform allocation awards/reservations into finished and occupied g
affordable/workforce housing units;and
X
WHEREAS, the developers have legitimate needs for some assurance that allocations are in fact and
will remain available and/or justified for a reasonable time so that follow-through on initial commitments
will in fact be justified;and
WHEREAS, in accordance with Section 138-24(b)(2) of the Monroe County Land Development
Code allows the °BOCC to authorize reservations for "specific affordable or employee housing
projects participating in a federal/state housing financial assistance or tax credit program or receiving some
form of direct financial assistance from the county upon written request from the project sponsor and
approved by resolution of the board ofcounty commissioners,"and 00
WHEREAS, Lower Keys Community Center Corp. noticed Monroe County of its intent to apply to
the Florida Housing Finance Corporation ("FHFC") for Low Income Housing Tax Credit ("LIHTC ")
financial assistance to offset the costs of its proposed 60-unit development("Project");and 0
WHEREAS, as part of the LIHTC application, FHFC requires the applicant to have obtained ,
the necessary ROGOs and for Monroe County to execute a verification that verifies that the applicant has
obtained the necessary ROGOs;and
c�
WHEREAS, Monroe County Code Sec.138-24(b) allows reservation of affordable ROGO
allocations by the Board for specific housing programs,which includes FHFC,LIHTC and SAIL;and
Packet Pg. 1732
J.4.b
WHEREAS, the reservation of affordable housing allocations for the anticipated project, does not
exempt the project from applicable requirements for the Monroe County Land Development Regulations,
Building Code and other regulatory requirements; and
WHEREAS, Lower Keys Community Center Corp. shall obtain all required approvals from the
Monroe County Planning&Environmental Resources Department for the project; and
WHEREAS, Lower Keys Community Center Corp. shall obtain permits for the affordable housing
dwelling units by November 20, 2019; if the permit is not issued, the allocations will revert to the
County.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
Section 1: The foregoing recitals are true and correct, and are hereby incorporated as if fully set
forth herein.
Section 2: The Monroe County Planning Department shall reservation for sixty (60) affordable 00
ROGO allocations, consisting of 27 low income and 33 moderate income category allocations, for the N
0
Monroe County project on Tract "B", Revised Plat of Amended Plat of Sugarloaf Shores Section F,
Sugarloaf Key until November 20,2019.
0
L-
4-
Section 3: The developer must obtain the building permit for the one (1) affordable/employee C
housing on or before November 20, 2019.
Section 4: The developer shall comply with all Monroe County requirements, all applicable
Building Code requirements, and any other oversight agencies. g
a
Section 5: The Planning and Building Department Staff is hereby authorized to process
expeditiously permit related applications for the above referenced project when received.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a
regular meeting held on the 20th day of November, 2018.
C]..•.;, ii Mayor: Sylvia Murphy Yes
at: Mayor Pro Tem: Danny L. Kolha a Yes
c� C}— Commissioner: Michelle Coldiron Yes
00
Commissioner:Heather Carruthers Yes
Commissioner:David Rice Yes C�
--=
U.J',= BOARD OF COUNTY C IS RS OF MONROE COUNTY, 0
FLORIDA
BY
May Syl Murphy
MADOK CLERK cs
IS M! E COUIM
AP
D on.rf"CLERK
ASSIS''TANt'iop'fd Y TrORNU
ante I► 2
Packet Pg. 1733
J.4.c
L_
1
2 RESOLUTION NO. 027 .2020
3 c
4 A RESOLUTION OF THE MONROE COUNTY BOARD OF COUNTY
5 COMMISSIONERS APPROVING THE RESERVATION EXTENSION OF
6 SIXTY (60) AFFORDABLE ROGO ALLOCATIONS CONSISTING OF 27
7 LOW INCOME AND 33 MODERATE INCOME CATEGORY
8 ALLOCATIONS FOR A PROPOSED EMPLOYEE DWELLING UNIT
9 DEVELOPMENT ON SUGARLOAF KEY ON PROPERTY DESCRIBED AS
10 TRACT "A", REVISED PLAT OF AMENDED PLAT OF .SUGARLOAF
11 SHORES SECTION F, REAL ESTATE NUMBER 00166976-011300 UNTIL
12 NOVEMBER 20,2020 FOR BUILDING PERMIT ISSUANCE.
13
14 WHEREAS,the State of Florida and all local governments in the Florida Keys (each subject to Area 00
15 of Critical State Concern mandates relating to housing affordability) recognize the need for affordable c0
c
16 housing throughout the state and particularly in the Florida Keys where developable land for housing is
17 extremely limited and expensive; and
18 E
19 WHEREAS, the challenge of providing affordable housing opportunities in the Florida Keys is one
20 requiring sensible and responsive use of residential unit allocations, including implementation of long-term c
21 preservation mechanisms; and
22
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
28 will remain available and/or justified for a reasonable time so that follow-through on initial commitments C
29 will in fact be justified; and g
30
31 WHEREAS, in accordance with Section 138-24(b)(2) of the Monroe County Land Development
32 Code allows the BOCC to authorize reservations for "specific affordable or employee housing
33 projects participating in a federal/state housing financial assistance or tax credit program or receiving some Q
34 form of direct financial assistance from the county upon written request from the project sponsor and
35 approved by resolution of the board of county commissioners," and c14
36
c
37 WHEREAS, at a regularly scheduled public meeting held on November 20, 2018, the BOCC
38 adopted Resolution No 410-2018, reserving sixty (60) affordable ROGO allocations under Section 138- 0
39 24(b)(2) of the Monroe County Land Development Code, consisting of 27 low income and 33 moderate
40 income category allocations for the proposed employee dwelling unit development, to expire if building
41 permits were not obtained by November 20, 2019; and
42
43 WHEREAS, Lower Keys Community Center Corp. has obtained Low Income Housing Tax Credit
44 ("LIHTC") financial assistance from the Florida Housing Finance Corporation ("FHFC") to offset the costs
45 of its proposed 60-unit development('Project");and
46
1
Packet Pg. 1734
J.4.c
I WHEREAS, as part of the LIHTC application, FHFC required the applicant to have obtained
2 the necessary ROGOs and for Monroe County to execute a verification that verifies that the applicant has
3 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 .2
14
15 WHEREAS, Lower Keys Community Center Corp. shall obtain all required approvals from the U)
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 perinit(s) are not issued, the allocations will revert to the
20 County. 00
c0
21 c
22 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
23 COMMISSIONERS OF MONROE COUNTY,FLORIDA:
24 0-
25 Section 1: The foregoing recitals are true and correct,and are hereby incorporated as if fully set a
26 forth herein.
c�
27
28 Section 2: The Monroe County Planning Department shall reserve sixty (60) affordable ROGO
29 allocations, consisting of 27 low income and 33 moderate income category allocations, for the Monroe g
U)
30 County project on Tract "A", Revised Plat of Amended Plat of Sugarloaf Shores Section F, Sugarloaf Key a
31 until November 20,2020.
32
33 Section 3: The developer must obtain the building permits for the affordable/employee housing g
34 units on or before November 20, 2020.
35
36 Section 4: The developer shall comply with all Monroe County requirements, all applicable
N
37 Building Code requirements, and any other oversight agencies. Q
38
N
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. e
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 Tern Michelle Coldiron Yes
47 Commissioner Craig Cates Yes
48 Commissioner David Rice Yes
49 Commissioner Sylvia Murphy Yes
2
Packet Pg. 1735
J.4.c
I v
BOARD OF COUNTY COMMI SIONERS OF MONROE COUNTY,
FLORIDA -�
r
3" CL
r, �� f BY
'�Rr ��
Mayor H ther uthers
7 MADO CLERK
8 5"
9 DEPUTY CLERK c
c
U)
0
00
CN
c
Ag
�c3f�9;
Data,...�_ G ZO
c
c�
c
U)
x
n g
v o
i =>=
J M
O `C t'J
CN
C� CJ
_! Ct 9=
27 0
0
i)
E
U
3
Packet Pg. 1736
J.4.d
1
2 RESOLUTION NO. 030 -2021
3
4 A RESOLUTION OF THE MONROE COUNTY BOARD OF COUNTY
5 COMMISSIONERS APPROVING THE RESERVATION EXTENSION OF
6 SIXTY (60) AFFORDABLE ROGO ALLOCATIONS CONSISTING OF 27
7 LOW INCOME AND 33 MODERATE INCOME CATEGORY
8 ALLOCATIONS FOR A PROPOSED EMPLOYEE DWELLING UNIT
9 DEVELOPMENT ON SUGARLOAF KEY ON PROPERTY DESCRIBED AS
10 TRACT "A", REVISED PLAT OF AMENDED PLAT OF SUGARLOAF
11 SHORES SECTION F, CURRENTLY BEARING PROPERTY
12 IDENTIFICATION NUMBER 00166976-011300, UNTIL NOVEMBER 20,
13 2021,FOR BUILDING PERMIT ISSUANCE.
14
15 WHEREAS,the State of Florida and all local governments in the Florida Keys(each subject to Area 00
N
16 of Critical State Concern mandates relating to housing affordability)recognize the need for affordable housing 0
17 throughout the state and particularly in the Florida Keys where developable land for housing is extremely
18 limited and expensive;and
19 0-
20 WHEREAS, the challenge of providing affordable housing opportunities in the Florida Keys is one
21 requiring sensible and responsive use of residential dwelling unit allocations, including implementation of
22 long-term preservation mechanisms;and
23
24 WHEREAS,due consideration should be given to relevant factors such as the capacity for allocation
25 recipients to promptly transform allocation awards/reservations into finished and occupied
26 affordable/workforce housing units;and
27
28 WHEREAS,the developers have legitimate needs for some assurance that allocations are in fact and
29 will remain available and/or justified for a reasonable time so that follow-through on initial commitments will
30 in fact be justified;and U)
31
32 WHEREAS, Monroe County Land Development Code ("LDC") Section 138-24(b)(2) allows the
33 Monroe County Board of County Commissioners ("BOCC") to authorize reservations for "specific C14
34 affordable or employee housing projects participating in a federal/state housing financial assistance or tax c14
35 credit program or receiving some form of direct financial assistance from the county upon written request from
36 the project sponsor and approved by resolution of BOCC";and
37
38 WHEREAS,at a regularly scheduled public meeting held on November 20,2018,the BOCC adopted
39 Resolution No 410-2018, reserving sixty (60) affordable ROGO allocations under Monroe County Land 0
40 Development Code Section 138-24(b)(2), consisting of 27 low income and 33 moderate income category
41 allocations for the proposed employee dwelling unit development, to expire if building permits were not
42 obtained by November 20,2019;and
43
44 WHEREAS, at a regularly scheduled public meeting held on January 22, 2020, the BOCC adopted
45 Resolution No 027-2020, reserving twenty-eight (28) low income category affordable ROGO allocations
1
Packet Pg. 1737
J.4.d
I under Monroe County Land Development Code Section 138-24(b)(2),for the proposed employee dwelling
2 unit development,to expire if building permits were not obtained by November 20,2020;and
3
4 WHEREAS, Lower Keys Community Center Corp. has been awarded Low Income Housing Tax
5 Credit("LIHTC") financial assistance from the Florida Housing Finance Corporation ("FHFC")to offset the
6 costs of its proposed 60-unit development("Project");and
7
8 WHEREAS, as part of the LIHTC application, FHFC required the applicant to have obtained
9 the necessary ROGOs and for Monroe County to execute a verification that verifies that the applicant has
10 obtained the necessary ROGOs; and
11
12 WHEREAS, Monroe County Land Development Code Sec. 138-24(b) allows reservation of
13 affordable ROGO allocations by the Board for specific housing programs, which includes FHFC, LIHTC
14 and SAIL;and
15
16 WHEREAS,on December 16,2020,the Monroe County Planning Commission approved the owner's
17 request for a major conditional use permit for development of the proposed housing units on the property,via
18 Monroe County Planning Commission Resolutions P35-20 and P36-20; and
19
20 WHEREAS,Lower Keys Community Center Corp.has been pursuing the project but is requesting a 00
21 one-year extension of the reservation;and cN
22
23 WHEREAS, the reservation of affordable housing allocations for the anticipated project, does not
24 exempt the project from applicable requirements for the Monroe County Land Development Regulations, E
0
25 Building Code and other regulatory requirements; and
27 WHEREAS, Lower Keys Community Center Corp. shall obtain all required approvals from the
28 Monroe County Planning and Environmental Resources Department for the project; and
29
30 WHEREAS, Lower Keys Community Center Corp. shall obtain permits for the affordable housing a
31 dwelling units by November 20, 2021; if the permit(s)are not issued, the allocations shall revert to the
32 County;
33
34 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY a
35 COMMISSIONERS OF MONROE COUNTY,FLORIDA:
36 a
37 Section 1. The foregoing recitals are true and correct,and are hereby incorporated as if fully set
38 forth herein.
39 CN
40 Section 2. The Monroe County Planning and Environmental Resources Department shall reserve `N
41 sixty (60) affordable housing ROGO allocations, consisting of 27 low-income and 33 moderate income
Al category allocations,for the project located in Monroe County,more particularly being situated on Tract"A",
43 Revised Plat of Amended Plat of Sugarloaf Shores Section F, Sugarloaf Key, Monroe County, Florida,until
44 November 20,2021.
45 U)
46 Section 3. The developer must obtain the building permit(s)for the affordable/employee housing
47 units on or before November 20,2021.
48
49 Section 4. The developer shall comply with all Monroe County requirements, all applicable
50 Building Code requirements,and any other oversight agencies and their respective regulatory requirements.
51
2
Packet Pg. 1738
J.4.d
I Section 5. The Planning and Environmental Resources Department and Building Department
2 staffs are hereby authorized to expeditiously process permit related applications for the above referenced
3 project when received.
4
5 Section 6. Construction and Inte retation.This resolution and its interpretation shall be
6 liberally construed and enforced in favor of Monroe County to effectuate its public purposes)and policy(ies)
7 of the County. The construction and interpretation of this resolution and all Monroe County Comprehensive
8 Plan provision(s), Florida Building Code, Florida Statutes, and Monroe County Code(s)provision(s) whose
9 interpretation arises out of, relates to, or is interpreted in connection with this resolution shall be liberally o
10 construed and enforced in favor of Monroe County to effectuate its public purpose(s) and policy(ies) of the
11 County,and shall be deferred in favor of the BOCC and such construction and interpretation shall be entitled
12 to great weight in adversarial administrative proceedings,at trial,bankruptcy,and on appeal.
13
0
14 Section 7. No Liabili . Monroe County expressly reserves and in no way shall be deemed to
15 have waived, for itself or for its officer(s), employee(s), or agent(s), any sovereign, governmental, and any
16 other similar defense, immunity, exemption, or protection against any suit, cause-of-action, demand, or U)
17 liability.
18
19 Section 8. Severability.If any provision of this resolution,or any part or portion thereof,is held
20 to be invalid or unenforceable by any administrative hearing officer or court of competent jurisdiction, the 00
21 invalidity or unenforeeability of such provision, or any part or portion thereof, shall neither limit nor impair N
22 the operation,enforceability, or validity of any other provision of this resolution, or any remaining part(s) or
23 portion(s) thereof. All other provisions of this resolution, and remaining part(s) or portion(s) thereof, shall
24 continue unimpaired in full force and effect. E
25
26 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
27 Florida, at a regular meeting held on the 20th day of
28
29 Mayor Michelle Coldiron Yes
30 Mayor Pro Tern David Rice Yes U)
31 Commissioner Craig Cates Yes
32
Commissioner Eddie Martinez — PS
33
34 Commissioner Mike Forster
x�
35
36t4y BOARD OF COUNTY COMMISSION-E&
37 � OF MONROE r.: ..
3
�:- Q
�tl ! 1■ r--
CN
BY:
MAYOR MICHELLE COLDIRQN 2
4
42
MONROE�FIT��
TTORNEY
43 a,�°,�.,. A t oRM U)
44 A T: MADO , CLERK
45 ASSISTANT COUNTY TTQRNY
46 AS DEPUTY CLERK Date: 115/21 E
c�
3
Packet Pg. 1739
J.4.e
a:a
1 4r9�M1"AN1N _
2 RESOLUTION NO. 439 -2021
3 4-
4 A RESOLUTION OF THE MONROE COUNTY BOARD OF COUNTY
5 COMMISSIONERS APPROVING THE RESERVATION EXTENSION OF
6 SIXTY (60) AFFORDABLE ROGO ALLOCATIONS CONSISTING OF 27
7 LOW INCOME AND 33 MODERATE INCOME CATEGORY
8 ALLOCATIONS FOR A PROPOSED EMPLOYEE DWELLING UNIT
9 DEVELOPMENT ON SUGARLOAF KEY ON PROPERTY DESCRIBED AS
10 TRACT "A", REVISED PLAT OF AMENDED PLAT OF SUGARLOAF
11 SHORES SECTION F, PROPERTY IDENTIFICATION NUMBER 00166976-
12 011300 UNTIL MAY 17,2023 FOR BUILDING PERMIT ISSUANCE.
13 0
14 WHEREAS,the State of Florida and all local governments in the Florida Keys (each subject to Area 0
15 of Critical State Concern mandates relating to housing affordability)recognize the need for affordable housing 00
16 throughout the state and particularly in the Florida Keys where developable land for housing is extremely 0
17 limited and expensive; and
18
19 WHEREAS, the challenge of providing affordable housing opportunities in the Florida Keys is one 0-
20 requiring sensible and responsive use of residential unit allocations, including implementation of long-term a
21 preservation mechanisms; and 2
22
23 WHEREAS,due consideration should be given to relevant factors such as the capacity for allocation 2
24 recipients to promptly transform allocation awards/reservations into finished and occupied a
25 affordable/workforce housing units; and U)
26 ass
27 WHEREAS,the developers have legitimate needs for some assurance that allocations are in fact and X
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 g
30 a
31 WHEREAS, in accordance with Section 138-24(b)(2) of the Monroe County Land Development X
32 Code allows the BOCC to authorize reservations for "specific affordable or employee housing projects
33 participating in a federal/state housing financial assistance or tax credit program or receiving some form of N
34 direct financial assistance from the county upon written request from the project sponsor and approved by `N
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 410-2018,reserving sixty(60) affordable ROGO allocations'under Section 138-24(b)(2) of 0
39 the Monroe County Land Development Code, consisting of 27 low income and 33 moderate income 0
40 category allocations for the proposed employee dwelling unit development,to expire if building permits were ..
41 not obtained by November 20, 2019; and
42
43 WHEREAS, at a regularly scheduled public meeting held on January 22, 2020, the BOCC adopted
44 Resolution No 027-2020, reserving twenty-eight (28) low income category affordable ROGO allocations
I.e.,affordable-employee.
1
Packet Pg. 1740
J.4.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 WHEREAS, at a regularly scheduled public meeting held on January 20, 2021, the BOCC adopted
4 Resolution No 030-2021, reserving twenty-eight (28) low income category affordable ROGO allocations
5 under Section 138-24(b)(2) of the Monroe County Land Development Code, for the proposed employee CL
6 dwelling unit development, to expire if building permits were not obtained by November 20, 2021; and
7 s
8 WHEREAS, Lower Keys Community Center Corp. has been awarded Low Income Housing Tax
9 Credit("LIHTC") financial assistance from the Florida Housing Finance Corporation ("FHFC") to offset the M
10 costs of its proposed 60-unit development("Project"); and 2
11 �
12 WHEREAS, as part of the LIHTC application, FHFC required the applicant to have obtained
13 the necessary ROGOs and for Monroe County to execute a verification that verifies that the applicant has
14 obtained the necessary ROGOs; and 2
15
16 WHEREAS, Monroe County Code Sec.138-24(b) allows reservation of affordable ROGO allocations
17 by the Board for specific housing programs,which includes FHFC,LIHTC and SAIL; and
18 0
19 WHEREAS,on December 16,2020,the Monroe County Planning Commission approved the owner's 0
20 request for a major conditional use permit for development of the proposed housing units on the property,via
00
21 Resolutions P35-20 and P36-20; and CN
22
23 WHEREAS, on February 5, 2021, a group of property owners on Sugarloaf Key appealed these W
24 approvals to the State of Florida Division of Administrative Hearings ("DOAH"); and E
25 4-
26 WHEREAS, on July 22, 2021, the DOAH hearing officer presiding over the appeal issued a final 0
27 order denying the appeal and affirming the decision of the Planning Commission; and
28
29 WHEREAS, on or about August 23, 2021, the same group of neighbors appealed the final order of
30 the DOAH hearing officer to the Circuit Court,where said litigation remains active and ongoing; and g
31
32 WHEREAS Lower Keys Community Center Co��has been pursuing the prQlect but is requesting a X
33 eighteen-month extension of the reservation; and
34
35 WHEREAS, the reservation of affordable housing allocations for the anticipated project, does not U)
36 exempt the project from applicable requirements for the Monroe County Land Development Regulations,
37 Building Code and other regulatory requirements; and W
38 CN
39 WHEREAS, Lower Keys Community Center Corp. shall obtain all required approvals from the CN
Q
40 Monroe County Planning &Environmental Resources Department for the project; and
41
42 WHEREAS, Lower Keys Community Center Corp. shall obtain permits for the affordable housing
43 dwelling units by May 17, 2023; if the permit(s) are not issued, the allocations will revert to the County;
44 U)
45 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
46 COMMISSIONERS OF MONROE COUNTY,FLORIDA:
47
48 Section 1: The foregoing recitals are true and correct, and are hereby incorporated as if fully set
49 forth herein.
50
2
Packet Pg. 1741
J.4.e
I Section 2: The Monroe County Planning Department shall reserve sixty (60) affordable ROGO
2 allocations,consisting of 27 Iow income and 33 moderate income category allocations,for the Monroe County
3 project on Tract"A", Revised Plat of Amended Plat of Sugarloaf Shores Section F, Sugarloaf Key until May
4 17,2023. CL
5
6 Section 3: The developer must obtain the building permits for the affordable/employee housing
7 units on or before May 17,2023. 4-
8
9 Section 4: The developer shall comply with all Monroe County requirements, all applicable
10 Building Code requirements, and any other oversight agencies.
11
12 Section 5: The Planning and Building Department Staff is hereby authorized to process
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 170 day of November 2021.
17
18 Mayor David Rice _wwww w Yes c00
0
19 Mayor Pro Tern Craig Cates Yes 0
20 Commissioner_Michelle C_oldiron Yes
. ,,,,,,�,,,�,,,, inez Yes E
21 Commissioner Eddie Mart
22 Commissioner Holly,Merrill Raschein Yes L-
23
24 BOARD OF COUNTY COMMISSIONERS
25 OF MONROE COUNTY,FLORIDA
26,
w
0
/owe
By:. ... ............ .._
r Mayor Da id Rice
k '
a.a
hi
33 ATTEST: KEVIN MADOK, CLERK
ATTORNEY CN
APWD0EDCN
e
°
34 By ETr0-
Date. M
As Deputy Clerk
35
36
c�
3
Packet Pg. 1742
J.4.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. 1743
J.4.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 d
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. 1744
J.4.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 d
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. 1745
J.4.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. 1746
J.4.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 d
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. 1747
J.4.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;
E
6
Packet Pg. 1748
J.4.f
75
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; d
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
c�
7
Packet Pg. 1749
J.4.f
75
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
4i
c�
8
Packet Pg. 1750
J.4.f
75
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;
U
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
E
c�
9
Packet Pg. 1751
J.4.f
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.
U)
M
U
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
4i
c�
10
Packet Pg. 1752
J.4.f
75
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
c�
11
Packet Pg. 1753
J.4.f
75
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
c�
12
Packet Pg. 1754
J.4.f
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
U
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.
c�
13
Packet Pg. 1755
J.4.f
75
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.
N
LEGAL DISCUSSION 6
Jurisdiction
M
U
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. ..
c�
14
Packet Pg. 1756
J.4.f
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
c�
15
Packet Pg. 1757
J.4.f
75
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
U
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[.]
4i
c�
16
Packet Pg. 1758
J.4.f
75
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:
c�
17
Packet Pg. 1759
J.4.f
75
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 6
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
U
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:
c�
18
Packet Pg. 1760
J.4.f
75
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
U
(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
�i
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."
c�
19
Packet Pg. 1761
J.4.f
75
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. 6
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
c�
20
Packet Pg. 1762
J.4.f
75
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. 6
2d 1007, 1010 (Fla. 1st DCA 2004).
U
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.
U
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.
�i
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
c�
21
Packet Pg. 1763
J.4.f
75
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
U
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.
22
Packet Pg. 1764
J.4.f
75
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; ...
�i
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.
4i
c�
23
Packet Pg. 1765
J.4.f
75
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.
c�
24
Packet Pg. 1766
J.4.f
75
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. 6
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
U
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.
c�
25
Packet Pg. 1767
J.4.f
75
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 6
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
c�
26
Packet Pg. 1768
J.4.f
75
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.
27
Packet Pg. 1769
J.4.f
75
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.
28
Packet Pg. 1770
J.4.f
75
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
U
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.
�i
4i
c�
29
Packet Pg. 1771