Ordinance 036-2003
ORDINANCE NO. O.j6 - 2003
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA, AMENDING SECTION 9.5-309
AND SECTION 9.5-367, MONROE COUNTY CODE, CLARIFYING
HOW THE HEIGHT OF FENCES IS MEASURED AND ALLOWING
FENCES IN RESIDENTIAL AREAS TO EXCEED 3 FEET WITHIN THE
CLEAR SIGHT TRIANGLE IF THEY ARE SET BACK A MINIMUM OF
10 FEET FROM THE EDGE OF THE PAVEMENT; PROVIDING FOR
SEVERABILITY; PROVIDING FOR THE REPEAL OF ALL
ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR
INCORPORATION INTO THE MONROE COUNTY CODE OF
ORDINANCES; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Board of County Commissioners has determined that it is in the interest
of the public's health, safety and welfare to regulate the height of fences within the clear sight
triangles located at intersections and driveways on public streets; and
WHEREAS, the Monroe County Planning Commission was presented with a staff report
prepared on September 9, 2003, by Robert Will, Planner and
WHEREAS, on September 24, 2003, the Monroe County Planning Staff and
Commission, at a regularly scheduled public hearing, approved of recommendations made by the
Development Review Committee and made other recommendations for clarification of the
proposed amendment and continued the item to the regular Planning Commission meeting on
October 8, 2003; and
WHEREAS, on October 8, 2003, the Monroe County Planning Commission, at a
regularly scheduled public hearing, approved the proposed text amendment; and
WHEREAS, the BOCC conducted a public hearing on October 15, 2003, and considered
the proposed Text and recommendation of staff; and
WHEREAS, the BOCC was presented with the following evidence which IS by
reference incorporated as part of the record of said hearings:
I, Staff report prepared on September 29, 2003 by K. Marlene Conaway;
2. Proposed Text Amendment;
3, Sworn testimony of the Planning staff; and
4. Comments from the public; and
WHEREAS, Monroe County Code Sec, 9.5-309 regulates the height, location, and types
of fences permitted within the unincorporated county; and
WHEREAS, A significant number neighborhoods within the unincorporated county have
fences which are non-conforming as to the height requirements within the clear sight triangle set
forth in Section 9,5-309; and
Page 1 of6
WHEREAS, existing regulations require fences to be limited to a height of three feet if
located within the clear sight triangle as defined in Section 9.5-427; and
WHEREAS, new fences constructed to the existing regulations would disrupt
neighborhood character with regard to required setbacks and height limitations within the front
yard setback and clear sight triangle; and
WHEREAS, the County's traffic consultants, URS Corp., have advised the county that
chain link fences obstruct visibility and should not be permitted within the clear sight triangle;
and
WHEREAS, the BaCC has made the Findings of Fact and Conclusions of Law based on
the evidence presented:
1, In the interest of public safety, clear sight lines must be maintained in all areas where
vehicles and pedestrians may interact, including residential streets and driveways,
2. Any fences located within the sight triangles as required in Section 9.5-427 on non-
residential properties and all properties on US 1 and designated arterial streets shall remain
limited to three feet in height due to the traffic volume on non-residential properties and
increased speed limit on US 1 and arterial streets.
3. In residential neighborhoods to allow for increased security of private property and visual
continuity fences may exceed three feet in height if they are setback at least ten feet from the
edge of the pavement to allow for drivers of vehicles to adequately see oncoming traffic or
pedestrians.
4. Fences that do not impair visibility so that movement may still be detected on either side
of the fences may be higher than those which may not be seen though, but must not be
constructed in the clear sight triangle.
5. In addition to fencing, shrubbery and hedges may obstruct vision in the clear sight
triangle and should be maintained only to a height of three feet.
WHEREAS, the BaCC has examined the proposed amendment to the Monroe County
Code submitted by the Monroe County Planning Department; and
WHEREAS, the BOCC hereby supports the decision of the Monroe County Planning
Commission and the Planning and Environmental Resources Department staff recommendation;
WHEREAS, it is the desire of the BaCC that the following amendment to the County
Code be approved, adopted, and transmitted to the State Land-Planning Agency for approval;
NOW, THEREFORE
Page 2 of6
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA that:
Section 1. Chapter 9.5, Article VII, Division 5, Section 9,5-309 Monroe County Code,
is hereby amended to read as follows:
Sec. 9.5-309. Fences.
It is the purpose of this section to regulate fences in order to protect the public health, safety
and welfare.
(a) Height: In general, all fences shall be measured from the finished elevation adjacent to
the fence and shall not exceed six (6) feet in height.
(1) For properties with access to D,S. #1 and to County designated arterial streets and
for all non-residential properties with access to any public street, no fence
exceeding three (3) feet shall be located within a clear sight triangle as defined in
Section 9.5-427 that interferes with the safe and adequate view of vehicles and
pedestrians utilizing streets and sidewalks;
(2) No fence exceeding (3) feet shall be located at the intersection of any two public
streets within the clear sight triangle as defined in Section 9,5-427;
(3) For residential properties on local streets, fences located within the clear sight
triangle as defined in Section 9,5-427 may exceed three (3) feet in height if located
on private property a minimum of (10) feet from the edge of pavement of the street,
the sidewalk or the bike path, whichever is closer to the property, On unpaved
streets, the distance shall be measured from the approximate edge of the cleared
right of way, If the setback of existing fences on the street is greater then ten (10)
feet the fence shall be setback the same distance or to a maximum of twenty (20)
feet, whichever is less;
(4) No fence shall exceed four (4) feet in height within any front yard setback or within
any side yard setback when such a yard is adjacent to a public street, except as
follows:
a. Within all land use districts, fences of five (5) feet in height may be permitted
if constructed of chain link or other material which does not impair visibility;
b. Within land use districts DC, SC, I, MI, and AD, and when permitted in a
commercial fishing district around storage lots, fences may be constructed to a
height of six (6) feet;
c, Within land use districts IS, SR, SR-L, SS and NA, fences may be constructed
to a height of six (6) feet provided that no other residentially developed
property is located within two hundred (200) feet of the subject property;
d, On Stock Island and on Key Haven, fences may be constructed to a height of
six (6) feet.
(6) When it is necessary to use a fence to contain athletic activity, the fence may
exceed six (6) feet to a maximum of twelve (12) feet, and be designed not to impair
visibility; and such fences shall be subject to a minor conditional use approval.
Page 3 of6
(b) Setbacks: In general, fencing may be located anywhere on the property, including the
property line, except as follows:
(1) The use of a fence shall not negate buffer yard requirements and standards. The
clearing of existing native vegetation to locate a fence in the buffer yard will only
be permitted to facilitate the construction of fences located along the inside or
outside edge of the required buffer yard,
(2) No fence shall be placed so as to extend into or through any wetlands or water
bodies, or extend beyond the mean high tide line on any property,
(3) Fences placed on any structure shall not violate height requirements for that
structure.
(4) In no event shall fences be approved if they restrict fire and emergency access to
individual or adjacent properties;
(5) Setback requirements for Big Pine and No Name Key are listed in section 9.5-
309( c).
(c) Big Pine and No Name Key: The purpose of this section is to recognize and provide for
the particular habitat needs of the Florida Key Deer (Odocoileus virginianus clavium) on
Big Pine Key and No Name Key so that deer movement throughout Big Pine Key and No
Name Key is not hindered while allowing for reasonable use of minimal fencing for the
purposes of safety and protection of property. In addition to all other standards set forth
in this section, all fences located on Big Pine Key and No Name Key shall meet the
standards of this subsection as listed below:
(1) In the Improved Subdivision (IS) land use district, fences shall be set back as
follows:
a. On canal lots, fences shall be set back at least fifteen (15) feet from the edge
of abutting street rights-of-way; and built to the edge of all other property
lines or as approved through a D.S, Fish and Wildlife Service coordination
letter;
b. On all other lots, fences shall be set back at least fifteen (15) feet from the
edge of abutting streets rights-of-way, at least five (5) feet from side property
lines and at least ten (10) feet from the rear property line, or as approved
through a D,S. Fish and Wildlife Service coordination letter;
(2) In all other land use districts, fences may enclose up to a maximum of and not to
exceed the net buildable area of the parcel only;
(3) Enclosure of the freshwater wetlands by fences is prohibited;
(4) All fences shall be designed and located such that Key deer access to native habitat,
including pinelands, hammocks, beach berms, saltmarshes, buttonwoods and
mangroves is maintained wherever possible;
(5) All fences shall be designed and located such that Key deer corridors, as identified
by the U.S, Fish and Wildlife Service, shall be maintained;
(6) Fences shall not be permitted without a principal use except where the enclosed
area consists of disturbed lands or disturbed land with exotics,
Page 4 of6
(d) Use: Fences may be allowed as accessory uses within any land use district and without a
principal use existent where upland security is required as otherwise permitted in section
9,5-288.
(e) Construction material: Fences may be constructed of natural or manmade materials,
including but not limited to brick, lumber, stone, metal, plaster, concrete and masonry:
(1) All materials shall be approved by the planning director as in conformance with the
visual character of the surrounding neighborhood and community character.
(2) No barbed or razor wire shall be permitted except in the Industrial (1) and Airport
(AD) districts with the approval of the planning director.
(f) Attachments to fences: No attachments to fences shall be allowed, including but not
limited to, banded and ribbon wire, signs projecting above six (6) feet from the ground
level, broken glass or metal strips except as a minor conditional use approval. The only
exception shall be a maximum of two (2) electrical lights attached to the fence not
exceeding two (2) feet in height above the maximum height limit. These lights shall
comply with all requirements of division 12 (outdoor lighting) and be permitted as of
right.
(g) Required permit: All fences shall be constructed pursuant to a building permit issued by
the county building department.
(h) Limited clearing: To allow construction of protective fences and gates, limited clearing
may be permitted if the following design standards have been met:
(1) Such limited clearing does not occur in scenic highway corridors established and
adopted in this chapter;
(2) Limited clearing shall not remove native vegetation that would provide for the
minimum buffer required in division 11, section 9,5-375, of this article;
(3) Existing tree canopies within hardwood and pinel and hammocks are not removed.
(i) Maintenance: All fences shall be maintained in good repair at all times.
Section 2. Chapter 9.5, Article VII, Division 10, Section 9,5-367 Momoe County Code,
is hereby amended to read as follows:
Sec. 9.5-367. Landscaping materials.
All required landscaping materials shall be of the types and minimum sizes set forth in this
section, Canopy trees shall have a minimum of three (3) inches dbh or twelve (12) feet in height.
Understory trees shall be a minimum of five (5) feet in height. Shrubs shall be a minimum of
three (3) feet in height. Shrubs and hedges shall be maintained at a height not to exceed 3 feet if
located with in the clear sight triangle as defined in Section 9,5-427,
Section 3. If any section, subsection, sentence, clause or provision of this ordinance is
held invalid, the remainder of this ordinance shall not be affected by such invalidity,
Section 4. All ordinances or parts of ordinances in conflict with this ordinance are hereby
repealed to the extent of said conflict.
Page 5 of6
Section 5, The provisions of this ordinance shall be included and incorporated in the
Code of Ordinances of the County of Monroe, Florida, as an addition or amendment thereto, and
shall be appropriately renumbered to conform to the uniform numbering system of the Code.
Section 6, This ordinance shall be filed in the Office of the Secretary of State of
Florida, but shall not become effective until a notice is issued by the Department of Community
Affairs or Administrative Commission approving the ordinance.
Section 7. This ordinance shall be transmitted by the Planning and Environmental
Resources Department to the Department of Community of Affairs to determine the consistency
of this ordinance with Florida Statutes.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting of said Board held on the 15th day of October ,2003.
Mayor Spehar
Mayor Pro Tern Nelson
Commissioner McCoy
,,/;.:'~~TIDissioner Neugent
il~_,'~_::;~~~~issioner Rice
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BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
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CLERK OF THE CIRCUIT COURT
MONROE COUNTY
BRANCH OFFICE
MARATHON SUB COURTHOUSE
3117 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
TEL. (305) 289-6027
FAC((305) 289-1745
MONROE COUNTY COURTHOUSE
500 WHITEHEAD STREET, SUITE 101
KEY WEST, FLORIDA 33040
TEL. (305) 292-3550
F AC( (305) 295-3663
BRANCH OFFICE
PLANTATION KEY
GOVE~ENTCENTER
88820 OVERSEAS HIGHWAY
PLANTATION KEY, FLORIDA 33070
TEL. (305) 852-7145
FAC( (305) 852-7146
November 12, 2003
Mrs. Liz Cloud, Chief
Bureau of Administrative Code & Laws
The Collins Building
107 W Gaines Street, Suite L43
Tallahassee FL 32399-0250
Via Certified Mail 7002 2030 0001 2668 8221
Dear Mrs. Cloud,
Enclosed please find certified copies of the following Ordinances:
Ordinance No. 036-2003 concerning amending Section 9.5-309 and Section 9,5-367, Monroe County
Code, clarifying how the height of fences is measured and allowing fences in residential areas to exceed 3 feet
within the clear sight triangle if they are set back a minimum of 10 feet from the edge of the pavement; Providing
for Severability; Providing for the repeal of all Ordinances inconsistent herewith; Providing for incorporation into
the Monroe County Code of Ordinances; and Providing an effective date.
Ordinance No. 037-2003 amending Section 9.5-316,1,9.5-316.2, and 9.5-317, and creating Section 9.5-
3 19, Monroe County Code [Floodplain Management Regulations]; Providing for reorganization; Providing for
definitions; Providing for revisions to regulations regarding residential nonconforming structures; Providing for
inspections upon transfer of residential property; Providing for Severability; Providing for the repeal of all
Ordinances inconsistent herewith; Providing for incorporation into the Monroe County Code of Ordinances; and
directing the Clerk of the Board to forward a certified copy of this Ordinance to the Florida Department of
Community Affairs; and Providing an effective date.
These Ordinances were adopted by the Monroe County Board of County Commissioners at a Regular
Meeting in formal session on October 15, 2003, Please file for record.
Should you have any questions please feel free to contact me at (305) 292-3550.
Danny L. Kolhage
Clerk of the Circuit Court
and ex officio Clerk to the
Board of County Commissioners
by .i2:,a.t.JJ!. ~
Isabel C. DeSantis, . C.
cc: Municipal Code Corporation via Certified Mail 700220300001 2668 8238
County Administrator
Growth Management
County Attorney
BOCC
File ./
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Bureau of Administrative Code
The Collins Building 3. SServviceType
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(Transfer from serYice�abe!)I s•i •t 7 o.a i 2 0 3 Q 0001. 2668 . 8221 ;
PS Form 3811,August 2001 Domestic Return Receipt 102595.02-M-154o,
STATE OF FLORIDA
DEPARTMENT OF STATE
JEB BUSH
Governor
GLENDA E. HOOD
Secretary of State
November 18, 2003
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Honorable Danny L. Kolhage
Clerk of the Circuit Court
Monroe County
500 Whitehead Street
Key West, Florida 33040
Attention: Isabel C. DeSantis, Deputy Clerk
Dear Mr, Kolhage:
Pursuant to the provisions of Section 125.66, Florida Statutes, this will acknowledge
receipt of your letter dated November 12, 2003 and certified copies of Monroe
County Ordinance Nos. 036-2003 and 037-2003, which were filed in this office on
November 17,2003.
Sincerely,
,
Liz Cloud
Program Administrator
LC/mp
BUREAU OF ADMINISTRATIVE CODE. DIVISION OF ELECTIONS
The Collins Building, Room L43 . 107 W. Gaines Street. Tallahassee, Florida 32399-0250
Telephone: (850) 245-6270 . Facsimile: (850) 245-6282 . WWW: http://www.dos.state.t1.us
E-Mail: DivElections@mail.dos.state.fl.us
Page 1 of2
Belle Desantis
From:
To:
Sent:
Subject:
<info@municode.com>
<idesantis@monroe-c1erk.com>
Tuesday, November 18, 2003 8:22 AM
Acknowledgment of material received
~~~com
Municipal Code Corporation
P.O. Box 2235
Tallahassee, FL 32316-2235
850-576-3171
Monroe County, FL Code of
Ordinances - 1979(11270)
Supplement 82
Recorded: 10/21/2003 11:26:23 AM
We have received the following material through Hard Copy.
Document Adoption Description
Ordinance 6/18/2003 Amending Sec. 9.5-268(Existing Residential
No. 026- Dwellings)to permit residential structures
2003 legally established before January 4, 1996
to be considered as legal residential
structures.
Ordinance 7/15/2003 Amending Land Development Regulations,
No. 031- Sec. 9.5-252(C)(3)h, (AICUZ) and creating
2003 Sec. 9.5-258, that specifies restrictions on
private property adjacent to the Naval Air
Station, BOCA CHICA.
Ordinance 7/15/2003 Amending Sections 9.5-4(A-5), (M-6.2) and
No. 030- (M-10), Sec. 9.5-122(c) and Sec. 9.5-266(a),
2003 (b), (c), (d), (e), (f), (g), (h), (i), U) and (k),
providing for a revised definition of
"Affordable Housing.
Ordinance 9/17/2003 Amending Sec. 6-56(19)Monroe County
No. 035- Code, by adding a subclassification 19A,
2003 establishing a landscaping curb contractor
category .
Ordinance 10/15/2003 Amending Sec. 9.5-309 and Sec. 9.5-367,
11/18/2003
Page 2 of2
Ordinance
No. 037-
2003
clarifying how the height of fences is
measured and allowing fences in residential
areas to exceed 3 feet within the cleaqr sight
triangle if they are set back a minimum of 10
feet from the edge of the pavement.
10/15/2003 Amending Sec. 9.5-316.1, 9.5-316.2 and
9.5-317 and creating Sec. 9.5-319, Monroe
County Floodplain Management
Regulations.
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No. 036-
2003
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11/18/2003
Email Confirmation
l-'un~.com
Page I of 2
Municipal Code Corporation
P.O. Box 2235
Tallahassee, FL 32316-2235
850-576-3171
Monroe County, FL Code of Ordinances -1979(11270)
Supplement 84
Recorded: 3/10/2004 10:35:39 AM
We have received the following material through Hard Copy,
Document
Ordinance No. 036-2003
Ordinance No. 004-2004
Adoption Description
10/15/2003 Amending sec, 9,5-309 and sec. 9.5-367 height of fences
2/18/2004 Creating chap, 2 art. XXVI adopting travel, per diem, meals
and mileage policy
. Are you e-mailing us your ordinances? Send them to Qrds@municode,c.Offi
. Does your code need a legal review? We can help - e-mail for an estimate
. Ask us about electronic supplementation and our newest service N,O.W. posting ordinances in between supplements
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PS Form 3800,June 2002 See Reverse for Instructions
DCA Final O -ur No.: DCA04-OR-002
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
o -r
In re: MONROE COUNTY LAND DEVELOPMENT a
REGULATIONS ADOPTED BY -� ,' , ��-
MONROE COUNTY ORDINANCE NO. 036-2003 cm) N
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FINAL ORDER -<+= i i
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The Department of Community Affairs (the "Department")hereby issues its Final Order,
pursuant to §§ 380.05(6), Fla. Stat., and § 380.0552(9),Fla. Stat. (2003), approving a land
development regulation adopted by a local government within the Florida Keys Area of Critical
State Concern as set forth below.
FINDINGS OF FACT
1. The Florida Keys Area is a statutorily designated area of critical state concern, and
Monroe County is a local government within the Florida Keys Area.
2. On December 3, 2003,the Department received for review Monroe County Ordinance
No. 036-2003 which was adopted by the Monroe County Board of County Commissioners on
October 15, 2003.("Ord. 036-2003"). The purpose of Ord. 036-2003 is to amend Section 9.5-
309 of the Monroe County Land Development Regulations. Ord. 036-2003 clarifies how the
height of fences is measured and to allow fences in residential areas to exceed three (3) feet in
height within the clear sight triangle of intersections, provided they are set back a minimum of
ten(10) feet from the edge of the nearest paved surface.
3. Ord. 036-2003 is consistent with the County's 2010 Comprehensive Plan.
CONCLUSIONS OF LAW
4. The Department is required to approve or reject land development regulations that are
enacted, amended or rescinded by any local government in the Florida Keys Area of Critical
State Concern. §§ 380.05(6),Fla. Stat., and § 380.0552(9), Fla. Stat. (2003).
5. Monroe County is a local government within the Florida Keys Area of Critical State
DCA Final 6rur No.: DCA04-OR-002
Concern. § 380.0552,Fla. Stat. (2002) and Rule 28-29.002 (superseding Chapter 27F-8),Fla.
Admin. Code.
6. "Land development regulations"include local zoning, subdivision, building and other
regulations controlling the development of land. § 380.031(8),Fla. Stat. (2003). The
regulations adopted by Ord. 036-2003 are land development regulations.
7. All land development regulations enacted, amended or rescinded within an area of
critical state concern must be consistent with the Principles for Guiding Development(the
"Principles") as set forth in § 380.0552(7),Fla. Stat. See Rathkamp v. Department of
Community Affairs, 21 F.A.L.R. 1902 (Dec. 4, 1998), aff'd, 740 So. 2d 1209 (Fla. 3d DCA
1999). The Principles are construed as a whole and no specific provision is construed or applied
in isolation from the other provisions.
8. Ord. 036-2003 promotes and furthers the following Principles:
(a) To strengthen local government capabilities for managing land
use and development so that local government is able to achieve
these objectives without the continuation of the area of critical.
state concern designation.
(c) To protect upland resources,tropical biological communities,
freshwater wetlands,native tropical vegetation, (for example,
hardwood hammocks and pinelands), dune ridges and beaches,
wildlife, and their habitat.
(1)To protect the public health, safety, and welfare of the citizens
of the Florida Keys and maintain the Florida Keys as a unique
Florida resource.
9. Ord. 036-2003 is consistent with the Principles for Guiding Development as a whole.
WHEREFORE, IT IS ORDERED that Ord. 036-2003 is found to be consistent with the
Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is
hereby APPROVED.
This Order becomes effective 21 days after publication in the Florida Administrative Weekly
unless a petition is filed as described below.
2
•
DCA Final Oraer No.: DCA04-OR-002
DONE AND ORDERED in Tallahassee, Florida.
VALERIE}.UBBARD, DI CTOR
Division of Community Plann ng
• Depgrtment of Community Af airs
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
NOTICE OF ADMINISTRATIVE RIGHTS
ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS
ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING
PURSUANT TO SECTION 120.569, FLORIDA STATUTES, REGARDING THE AGENCY'S
ACTION. DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF
MATERIAL FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE
PROCEEDING, YOU ARE ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A
FORMAL HEARING.
IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED ISSUE
OF MATERIAL FACT CONTAINED IN THE DEPARTMENT'S ACTION, THEN THE
ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED
PURSUANT TO SECTIONS 120.569 AND 120.57(2)FLORIDA STATUTES, AND
CHAPTER 28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN
INFORMAL ADMINISTRATIVE PROCEEDING, YOU MAY BE REPRESENTED BY
COUNSEL OR BY A QUALIFIED REPRESENTATIVE,AND YOU MAY PRESENT
WRITTEN OR ORAL EVIDENCE IN OPPOSITION TO THE DEPARTMENT'S ACTION OR
REFUSAL TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN
STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS
CHOSEN TO JUSTIFY ITS ACTION OR INACTION.
IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY
ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL
ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE
DIVISION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND
120.57(1), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA
ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY
BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND
YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON
ALL THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT
REBUTTAL EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS,
AND TO FILE EXCEPTIONS TO.ANY RECOMMENDED ORDER.
D.CA Final liter No.:'DCA04-OR-002
IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL
HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF
COMMUNITY AFFAIRS A WRITTEN PLEADING ENTITLED, "PETITION FOR
ADMINISTRATIVE PROCEEDINGS" WITHIN 21 CALENDAR DAYS OF PUBLICATION
OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECEIVED BY THE AGENCY
CLERK, IN THE DEPARTMENT'S OFFICE OF GENERAL COUNSEL, 2555 SHUMARD
OAK BOULEVARD,TALLAHASSEE, FLORIDA 32399-2100.
THE PETITION MUST MEET THE FILING REQUIREMENTS IN RULE 28-
106.104(2), FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING IS
REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH
RULE 28-106.301, FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS
REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH
RULE 28-106.201(2), FLORIDA ADMINISTRATIVE CODE.
A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A
REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY
RULE 28-106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSING MEDIATION DOES
NOT AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING.
YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE
PROCEEDING OR A FORMAL HEARING IF YOU DO NOT FILE A PETITION WITH
THE AGENCY CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL
ORDER.
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with
the undersigned designated Agency Clerk, and that true and rrect copies have been furnished
to the persons listed below by the method indicated thiay of January 2004.
.
ula Ford,Agency Jerk
By U.S. Mail:
Honorable Murray Nelson
Mayor of Monroe County
500 Whitehead Street, Suite 102
Key West, Florida 33040
4
i .
DCA Final Order No.: DCA04.OR-002
•
Danny L. Kolhage
Clerk to the Board of County Commissioners
500 Whitehead Street
Key West, Florida 33040
Timothy J. McGarry, AICP
Director, Growth Management Division
2798 Overseas Highway, Suite 400 •
Marathon, Florida 33050
By Hand Delivery or Interagency Mail:
Jim Quinn, Bureau of State Planning, DCA Tallahassee •
Rebecca Jetton, ACSC Administrator, DCA Tallahassee
David Jordan, Deputy General Counsel, DCA Tallahassee
Timothy E. Dennis, Assistant General Counsel, DCA Tallahassee
•
DCA Final Order No.: DCA04-0R-002
ST A TE OF FLORIDA
DEP ARTMENT OF COMMUNITY AFFAIRS
FINAL ORDER
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In re: MONROE COUNTY LAND DEVELOPMENT
REGULATIONS ADOPTED BY
MONROE COUNTY ORDINANCE NO. 036-2003
..,.,
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The Department of Community Affairs (the "Department") hereby issues its Final Order,
',-:)
.,
-'
pursuant to ~~ 380.05(6), Fla, Stat., and 9 380,0552(9), Fla, Stat. (2003), approving a land
development regulation adopted by a local government within the Florida Keys Area of Critical
State Concern as set forth below,
FINDINGS OF FACT
1. The Florida Keys Area is a statutorily designated area of critical state concern, and
Monroe County is a local government within the Florida Keys Area.
2. On December 3, 2003, the Department received for review Monroe County Ordinance
No. 036-2003 which was adopted by the Monroe County Board of County Commissioners on
October 15,2003 ("Ord. 036-2003"). The purpose ofOrd. 036-2003 is to amend Section 9.5-
309 of the Monroe County Land Development Regulations. Ord. 036-2003 clarifies how the
height offences is measured and to allow fences in residential areas to exceed three (3) feet in
height within the clear sight triangle of intersections, provided they are set back a minimum of
ten (10) feet from the edge of the nearest paved surface.
3. Ord. 036-2003 is consistent with the County's 2010 Comprehensive Plan,
CONCLUSIONS OF LAW
4. The Department is required to approve or reject land development regulations that are
enacted, amended or rescinded by any local government in the Florida Keys Area of Critical
State Concern. 9~ 380.05(6), Fla, Stat., and 9 380.0552(9), Fla, Stat, (2003).
5. Monroe County is a local government within the Florida Keys Area of Critical State
DCA Final Order No.: DCA04-0R-002
Concern. ~ 380.0552, Fla. Stat. (2002) and Rule 28-29,002 (superseding Chapter 27F-8), Fla.
Admin. Code,
6. "Land development regulations" include local zoning, subdivision, building and other
regulations controlling the development ofland. ~ 380,031 (8), Fla. Stat, (2003). The
regulations adopted by Ord. 036-2003 are land development regulations.
7. All land development regulations enacted, amended or rescinded within an area of
critical state concern must be consistent with the Principles for Guiding Development (the
"Principles") as set forth in ~ 380.0552(7), Fla. Stat. See Rathkamp v, Department of
Community Affairs, 21 F,A.L.R. 1902 (Dec. 4, 1998), aff'd, 740 So, 2d 1209 (Fla. 3d DCA
1999). The Principles are construed as a whole and no specific provision is construed or applied
in isolation from the other provisions.
8. Ord. 036-2003 promotes and furthers the following Principles:
(a) To strengthen local government capabilities for managing land
use and development so that local government is able to achieve
these objectives without the continuation of the area of critical
state concern designation.
(c) To protect upland resources, tropical biological communities,
freshwater wetlands, native tropical vegetation, (for example,
hardwood hammocks and pinelands), dune ridges and beaches,
wildlife, and their habitat.
(1) To protect the public health, safety, and welfare ofthe citizens
of the Florida Keys and maintain the Florida Keys as a unique
Florida resource.
9. Ord. 036-2003 is consistent with the Principles for Guiding Development as a whole.
WHEREFORE, IT IS ORDERED that Ord, 036-2003 is found to be consistent with the
Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is
hereby APPROVED,
This Order becomes effective 21 days after publication in the Florida Administrative Weekly
unless a petition is filed as described below,
2
DCA Final Order No.: DCA04-0R-002
DONE AND ORDERED in Tallahassee, Florida.
NOTICE OF ADMINISTRATIVE RIGHTS
ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS
ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING
PURSUANT TO SECTION 120.569, FLORIDA STATUTES, REGARDING THE AGENCY'S
ACTION. DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF
MATERIAL FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE
PROCEEDING, YOU ARE ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A
FORMAL HEARING.
IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED ISSUE
OF MATERIAL FACT CONTAINED IN THE DEPARTMENT'S ACTION, THEN THE
ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED
PURSUANT TO SECTIONS 120.569 AND 120.57(2) FLORIDA STATUTES, AND
CHAPTER 28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN
INFORMAL ADMINISTRATIVE PROCEEDING, YOU MAYBE REPRESENTED BY
COUNSEL OR BY A QUALIFIED REPRESENTATIVE, AND YOU MAY PRESENT
WRITTEN OR ORAL EVIDENCE IN OPPOSITION TO THE DEPARTMENT'S ACTION OR
REFUSAL TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN
STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS
CHOSEN TO JUSTIFY ITS ACTION OR INACTION.
IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY
ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL
ADMINISTRA TIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE
DIVISION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND
120.57(1), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA
ADMINISTRA TIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY
BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND
YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON
ALL THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT
REBUTTAL EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS,
AND TO FILE EXCEPTIONS TO ANY RECOMMENDED ORDER,
3
DCA Final Order No.: DCA04-0R-002
IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL
HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF
COMMUNITY AFFAIRS A WRITTEN PLEADING ENTITLED, "PETITION FOR
ADMINISTRATIVE PROCEEDINGS" WITHIN 21 CALENDAR DAYS OF PUBLICATION
OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECEIVED BY THE AGENCY
CLERK, IN THE DEPARTMENT'S OFFICE OF GENERAL COUNSEL, 2555 SHUMARD
OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100.
THE PETITION MUST MEET THE FILING REQUIREMENTS IN RULE 28-
106,104(2), FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING IS
REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH
RULE 28-106.301, FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS
REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH
RULE 28-106.201(2), FLO}UDA ADMINISTRATIVE CODE.
A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A
REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY
RULE 28-106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSING MEDIATION DOES
NOT AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING.
YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE
PROCEEDING OR A FORMAL HEARING IF YOU DO NOT FILE A PETITION WITH
THE AGENCY CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL
ORDER.
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with
the undersigned designated Agency Clerk, and that true and .ft?rrect copies have been furnished
to the persons listed below by the method indicated thi~n.aay of January 2004.
By U.S. Mail:
Honorable Murray Nelson
Mayor of Monroe County
500 Whitehead Street, Suite 102
Key West, Florida 33040
4
.
DCA Final Order No.: DCA04-0R-002
Danny L. Kolhage
Clerk to the Board of County Commissioners
500 Whitehead Street
Key West, Florida 33040
Timothy 1. McGarry, AICP
Director, Growth Management Division
2798 Overseas Highway, Suite 400
Marathon, Florida 33050
Bv Hand Delivery or Interagencv Mail:
Jim Quinn, Bureau of State Planning, DCA Tallahassee
Rebecca Jetton, ACSC Administrator, DCA Tallahassee
David Jordan, Deputy General Counsel, pCA Tallahassee
Timothy E. Dennis, Assistant General Counsel, DCA Tallahassee
5