Item B
County of Monroe
Growth Manazement Division
2798 Overseas Highway
Suite 410
Marathon, Florida 33050
Voice: 305.289. 2500
FAX: 305.289. 2536
Board of County Commissioners
Mayor Murray Nelson, District 5
Mayor Pro Tern David Rice, District 4
Comm. Charles "Sonny" McCoy, District 3
Corom. George Neugent, District 2
Corom. Dixie Spehar, District 1
MEMORANDUM
TO:
Board of County Commissioners
FROM:
Timothy J. McGarry, AICI%:w1
Director of Growth Manaf;efOOftt
DATE:
December 31, 2003
SUBJECT:
Staff Identification and Evaluation of Possible
Options for Interim Habitat Protection in Response
to Concerns of DCA and the Governor and Cabinet
Overview
The January 6, 2004, special County Commission meeting in Key West, the Board of County
Commissioners will be meeting in a workshop with DCA Secretary Colleen Castille and her staff
to discuss the County's response to addressing the concerns raised by the DCA and the Governor
and Cabinet about lack of substantial progress on the Work Program, To assist the Board in its
negotiations and deliberations, the Growth Management Division has prepared a brief paper
(attached) that identifies and evaluates six possible options to address DCA's remaining principal
concern, habitat protection.
Background
On December 16, 2004, the Governor and Cabinet sitting as the Administration Commission,
determined that Monroe County has not made substantial progress on the work program based
upon failure to enforce habitat protection measures and limited progress on the construction of
wastewater facilities, The Administration Commission indicated that rule amendments will be
necessary and directed the DCA to determine comprehensive plan changes necessary to fully
implement the work program by January 10, 2004. Specific action on the proposed rule
amendments will be considered by the Commission on January 27,2004,
This meeting with the Secretary is intended to provide an opportunity for further negotiations with
the Secretary before the DCA staff makes specific recommendations on rule amendments on
January 10, 2004 for consideration by the Governor and Cabinet later in January. Based on
discussions with the DCA staff, it appears to be unlikely that the draft rules will be available prior
to the Board's special meeting.
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The DCA Secretary and her staff have indicated to Growth Management Division staff that the
agency's concerns with the County's progress in constructing wastewater facilities have generally
been resolved. The remaining issue is habitat protection.
It is the staffs understanding that if the County is unable to reach some agreement with the DCA
next week, that DCA will recommend specific and detailed rule amendments to the County's
Comprehensive Plan to be adopted by the Governor and Cabinet. These rules will most likely go
well beyond what the County can comfortably support and may even prove counterproductive to
the County's efforts to implement the recommendations of the Florida Keys Carrying Capacity and
Goal 105 of the Comprehensive Plan.
The County would then be in the position of either having to challenge the rules or go forward to
implement the rules. It is not clear from a legal standpoint whether or not the County can shift all
or a good portion of the legal and financial responsibility for these rules to the State. [Jim
Hendrick, the Growth Management Division's litigation counsel will be at the special meeting and
has been asked to opine on this issue if necessary.]
Possible Options
The staff has identified six possible options for consideration by the Commission. A description
and staff evaluation of each is included in the attachment.
The staff has identified four preferred options for consideration in order of preference, Two
options are not recommended by staff for further consideration by the Board.
Whatever interim measures the Board may decide to take in regards to habitat protection, the DCA
will need to have some indication of what the County intends to accomplish at the end of this
interim period. Therefore, in addition to these six options, the staff has identified specific actions
that the County should commit to over the next six months to implement the recommendations of
the Florida Keys Carrying Capacity Study and Goal 105 of the Comprehensive Plan, The Growth
Management Division is currently working diligently on these implementation actions.
Questions?
Should you have any questions prior to the Commission meeting next Tuesday, please don't
hesitate to call me.
Attachment
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cc: James Quinn, DCA
Danny L. Kolhage, Clerk of the Court
James L. Roberts, County Administrator
John. R. Collins, County Attorney
Mark Rosch, Executive Director, Land Authority
James Hendrick, Growth Management Division Legal Counsel
IDENTIFICATION AND STAFF EVALUATION
OF POSSIBLE
OPTIONS FOR INTERIM HABITAT PROTECTION IN
RESPONSE TO CONCERNS OF
DCA AND GOVERNOR AND CABINET
Possible Response Options
This paper outlines and evaluates six possible options for consideration by the Board in
responding to the concerns of the Governor and Cabinet and DCA concerning habitat
protection. The four options recommended by the staff for consideration are given in
order of preference from 1 (most preferred) to 4 (least preferred). Options #5 (Negative
ROGO points) and Option #6 (Status Quo) are not recommended.
The most preferred option (Option #1) is a moratorium on all ROGOINROGO awards
within designated Conservation and Natural Areas. The second ranked preferred option
(Option #2) is a moratorium on ROGOINROGO awards that involve the clearing of any
hammock within designated Conservation and Natural Areas. The third ranked preferred
option (Option #3) is a moratorium on ROGOINROGO awards that involve the clearing
of any high quality hammock within designated Conservation and Natural Areas. The
least preferred option (Option #4) is the assigning of positive points to ROGOINROGO
applications outside of designated Conservation and Natural Areas.
Minimum for All Options
The Board's resolution adopting any of the options should include at a minImum:
supporting background material identifying the County's accomplishments, such as land
acquisition and dedication of environmentally sensitive lands; the designation of
Conservation and Natural Areas; adoption of regulations to restrict awarding of ROGO
points for aggregation and elimination of NROGO exemptions for not-for-profit uses in
Conservation and Natural Areas; and a description of the requirement for technical
coordination review assistance from US Fish and Wildlife Service prior to acceptance of
building permit applications. The resolution should also include actions the County
intends to accomplish in the next six months to implement recommendations of the
Florida Keys Carrying Capacity Study (FKCCS) and Goal 105, such as the following:
o Amending the Comprehensive Plan and Land Development Regulations to
revise ROGOINROGO based on Tier System utilizing a "new" positive
point system predominately relying on land dedication and aggregation;
o Amending the Land Development Regulations to adopt "Tier" Map
designations;
o Amending the Habitat Evaluation Index (HEI) regulations using the Tier
system to establish environmental open space requirements;
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o Amending the Comprehensive Plan (if required) and Land Development
Regulations regarding affordable housing allocations; and,
o Preparing a Land Acquisition Master Plan including strategies, funding
and non-funding sources for acquisition and management of conservation
lands, retirement of development rights and acquisition of affordable
housing sites.
Option 1: Institute a Moratorium on ROGOINROGO Awards Within Conservation
and Natural Areas
Description: This option is the same as one the Board of County Commissioners rejected
this summer due to concerns about "takings" and "Bert Harris" claims and would involve
placing a moratorium on any ROGO/NROGO awards within designated Conservation
and Natural Areas.
Evaluation: If such a moratorium were in place today, it would affect only 17
applications (5%) of the 340 ROGO applications (excluding Big Pine and No Name
Keys) in the permit allocation system. In the last quarter only four of these 17
applications, all for affordable housing, received ROGO allocations and these properties
were located on cleared or disturbed lots without any hammock, but within endangered
species buffer areas. [Note: The County typically receives few applications in
Conservation and Natural areas as most property owners are very cognizant of the ROGO
scoring system and therefore avoid placing applications on properties with sensitive
environmental features or endangered or threatened species. This dampening effect on
the number of applications is readily apparent considering that over 1330 vacant,
privately-owned platted ISIURM zoned lots and 619 SR zoned parcels are located within
Conservation and Natural Areas.]
The County's legal experts have stated that such a moratorium, if done for a specific
purpose and period of time, is legally defensible from both a "takings" and "Bert Harris"
claims. The Board may want to seek further commitments from the DCA to not only
assist the County in legally defending against such claims, but to also provide financial
resources to cover claims arising from a settlement or adverse court decision. The staff
believes that DCA will withdraw or abate its NOV should the County pursue this option.
Recommended as No.1 Preferred Option.
Option 2: Institute a Moratorium on ROGOINROGO Awards in Any Quality of
Hammock within Conservation and Natural Areas
Description: Under this option, a moratorium would be placed on the awarding of any
ROGO/NROGO allocations involving the clearing of hammock of any quality within
Conservation and Natural Areas.
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Evaluation: If such a moratorium were in place today, it would affect at least 3 of the 17
applications within the Conservation and Natural Areas in the permit allocation system;
however, the actual number of impacted applications may be larger as this moratorium
would apply to clearance of any hammock within these areas, not just hammock on the
official 1985 habitat maps as required under Policy 205.2.12 of the Comprehensive Plan,
This option may be well received by DCA, as it addresses habitat protection concerns
raised by that agency concerning the interim period until amendments are made to the
County's Comprehensive Plan and Land Development Regulations. Furthermore, it
would resolve, at least temporarily, issues the DCA has concerning the County's
administration of its habitat protection regulations that have resulted in a Notice of
Violation. This option would also be less comprehensive in scope than Option #1 in the
number of properties affected by the moratorium and therefore, the level of legal
exposure may be less than a full moratorium. Recommended as No.2 Preferred
Option.
Option 3: Institute a Moratorium on ROGOINROGO Awards in High Quality
Hammock within Conservation and Natural Areas
Description: Under this option, a moratorium would be placed on the awarding of any
ROGO/NROGO allocations involving the clearing of any high quality hammock within
Conservation and Natural Areas. This moratorium would be similar to the one that the
City of Marathon adopted, which the DCA in its recent press release lauded the City for
its "leadership in protecting high quality hammock areas".
Evaluation: If such a moratorium were in place today, it would not affect any of the 17
applications within the Conservation and Natural Areas in the permit allocation system.
[Note: As noted in Option # 1, the County receives few applications for properties that
receive high negative environmental scores. The information available to applicants
generally precludes applicants from even applying in high quality hammock areas.]
On the surface, this option may be acceptable to DCA, especially as a similar moratorium
by Marathon seems to be enthusiastically applauded by that agency. The scope of such a
moratorium would impact a significantly less number of properties and total acreage than
one for Conservation and Natural Areas (see Option #1) or the more limited moratorium
under Option #2; therefore, the level of legal exposure would be less than a moratorium
on all lands within these designated areas.
One problem to DCA's acceptance of this option may be that Marathon, even though it is
operating under a similar set of habitat protection regulations, does not contain anywhere
near the amount of habitat that would be judged "high quality" within its jurisdictional
boundaries as does the County. Even if that were not the case, more likely due to the
County's outstanding dispute with the DCA over the classification of hammocks, this
alternative would still not be acceptable to the DCA. Therefore, DCA would not
withdraw or abate its Notice of Violation if this option is selected as it does not directly
address issues raised by DCA in its allegations. Recommended as No.3 Preferred
Option.
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Option 4: Assign Positive Points Under ROGO/NROGO to Properties Outside of
Conservation and Natural Areas
Description: Rather than assign negative points as under Option #5 below, a positive 10
points would be assigned to all ROGO/NROGO applications for properties outside of
Conservation and Natural Areas.
Evaluation: The assigning of positive points to properties outside the Conservation and
Natural Areas would not appear to directly impact property values, but would make these
properties less competitive in ROGO/NROGO with properties in less environmentally
sensitive areas. Therefore, it may not raise the same level of concern over "taking" or
"Bert Harris" issues that Option #5 would. Recommended as No.4 Preferred Option.
Option 5: Assign Negative Points Under ROGO/NROGO to Properties Within
Conservation and Natural Areas
Description: Under this option, which is the approach requested by Secretary Castille in
her November 10, 2003, letter, ROGO scoring would be revised to assign negative 10
points (as suggested by the environmental community) to all lands within the
Conservation and Natural Areas. A similar approach was considered and rejected by the
Commission this summer.
Evaluation: This approach may appear to be directly diminishing the value of the subject
properties (taking away ROGO points) and may raise "taking" or "Bert Harris" issues. It
should be further noted that although moratoria and other similar type interim regulations
have been upheld in the courts, little or no case law exists for this approach; however,
legal counsel does believe that it can be upheld in courts. Not Recommended.
Option 6: Maintain Status Quo
Description: The Commission would make no new commitments in addressing habitat
protection except approve an action plan to implement the recommendations of the
FKCCS and Goal 105 described under the "Minimum for All Options".
Evaluation: This option would clearly be unacceptable to the DCA and Governor and
Cabinet based on the preliminary action taken on December 16, 2003, and DCA staff
comments. It runs the possible risk of a 20% reduction in the number of ROGO
allocations, but more importantly it will most likely result in rulemaking by the Governor
and Cabinet that will directly amend the County's Comprehensive Plan and/or Land
Development Regulations. The County may then be forced to implement the rulemaking,
which may well be more draconian and unacceptable than if the County were to take a
more pro-active action in addressing concerns about interim habitat protection. The
courts would have to decide if the County could shift all or some of the legal
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responsibility for these rules to the State. Furthermore, the current Notice of Violation
filed by DCA against the County would not be abated. Not Recommended.
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Karen K. Cabanas
Robert Cintron
James T. Hendrick
Derek V. Howard
Hugh J. Morgan
LAW OFFICES
MORGAN & HENDRICK
317 Whitehead Street
Key West, Florida 33040
W. Curry Harris
(1907-1988)
Hilary U. Albury
( 1920-1999)
January 6, 2004
J. Richard Collins, Esq,
Monroe County Attorney
HAND-DELIVERED
Re: Potential liability for short-term moratorium
Dear Mr. Collins:
Monroe County Growth Management Division has informed us that Monroe County is
contemplating adoption of an ordinance (the "Moratorium Ordinance") that would
establish a moratorium of short duration (i.e., not exceeding one year) on the issuance of
ROGO/NROGO allocations involving clearing of "high quality hammock" lands within
Conservation and Natural Areas. We have been directed to render to you our legal
opinion concerning Monroe County's potential liability for enactment of the Moratorium
Ordinance, under both the Bert J. Harris, Jr, Private Property Rights Protection Act (F.S. g
70.001; "the Harris Act") and the provisions of the U.S. and Florida Constitutions
requiring just compensation for governmental actions that "take" real property ("takings").
Our opinion is based on the premise that the Moratorium Ordinance will include the
following provisions, the absence of which might subject the Moratorium Ordinance to
potentially successful challenge:
1. Proper purpose: the purpose of the Moratorium Ordinance must be legally
justifiable, e,g interim protection of environmentally sensitive lands for the
minimum period required for the drafting and adoption of land development
regulations restricting development of those lands and assuring just compensation
for owners of lands that may be rendered unbuildable by those regulations.
Because there would be takings implications if the County were to adopt a
moratorium solely to gain sufficient time to acquire those lands, we recommend that
the Moratorium Ordinance expressly disclaim such a purposel. The Resolution
I This would make it clear that the County is acting for reasons other than effectuating DCA's recommendation that the
County "protect high quality habitat until acquisition funds become available."
should also state the reasons that these particular lands are being subjected to the
moratorium (i.e" their unique habitat and environmental values) to the exclusion of
other lands (e,g., wetlands are already adequately protected).
2. Administrative relief: in order to afford relief to any property owner who might
have a legitimate basis for vested rights, and to deter unfounded judicial challenges
to the Moratorium Ordinance, the Moratorium Ordinance should include an
administrative procedure for determination of vested rights. Although GMD staff is
of the opinion that there are few, if any, potential applicants for such relief, the
existence of an administrative remedy will afford dual protection for property rights
and against spurious litigation.
3. Clear definitions: to assure due process, a precise description of those lands subject
to the Moratorium Ordinance is essential.
4. Limited term: takings jurisprudence holds that moratoria of short duration (such as
6 months to a year) do not constitute a categorical taking. As noted below, the
Harris Act excludes temporary measures such as short-term moratoria.
Provided that the above recommendations are included in the Moratorium Ordinance, and
that the Ordinance is enacted in accordance with the provisions of Florida law and
Monroe County LDRs, we are of the opinion that the adoption of the Moratorium
Ordinance will not subject Monroe County to substantial risk of an adverse judgment
under either the Harris Act or takings litigation. As the BOCC has previously been
advised, the Harris Act expressly excludes liability for "temporary impacts to real
property" F.S. ~ 70.001(3)(e). That exclusion encompasses the Moratorium Ordinance.
The United States Supreme Court's Tahoe decision holds that moratoria complying with
the above recommendations do not constitute a categorical taking. Although it is
theoretically possible that an affected property owner could allege an as-applied taking,
the prospect of recovery under such a theory is remote, because a short-term moratorium
would not strip the property of essentially all value.
We will be pleased to address the BOCC on the subject of this letter, at your direction.
Sincerely,
CONCEPTUAL PROPOSAL FOR A COOPERATIVE
AGREEMENT BETWEEN DCA AND MONROE COUNTY
TO ADDRESS SIGNIFICANT
OUTSTANDING WORK PROGRAM ISSUES
F or Board discussion purposes with the DCA, this paper outlines a proposal for a
cooperative agreement to be reached between the Department of Community Affairs and
Monroe County to implement the Year 2010 Comprehensive Plan Work Program and the
recommendations of the Florida Keys Carrying Capacity. It is the product of a meeting
with the Mayor and County administrative and legal staff and, except where modified,
generally represents the actions taken by the Board of County Commissioners on
December 10,2003.
WASTEWATER
Proposed Commitments by the County
I. Pledge to bond up to $40 million of infrastructure tax funds to match the
$10 million in grant funds from the State in 2004 and $20 million in
Federal/State grants in 2005 for construction of wastewater projects.
2. Pledge to bond up to $80 million from connection fees for construction
and expansion of wastewater projects.
[The total amount pledged to be bonded by the County would be up to $120
million, which is 50 percent of estimated total costs of remaining projects.]
Proposed Commitments by the DCA
1. Secure $10 million in grant funds to match the $20 million to be bonded
by Monroe County for wastewater projects in FY 2004.
2. Secure $20 million in Federal/State grants to match $20 million to be
bonded by Monroe County for wastewater projects in FY 2005.
WORKFORCE/AFFORDABLE HOUSING
Proposed Commitments by the County
I. Pledge to bond up to $10 million from half-penny of the tourist impact tax
to purchase land for workforce housing .
2. Amend the Comprehensive Plan and Land Development Regulations
regarding affordable housing allocations and assignment of these
allocations to more efficiently and effectively distribute such allocations in
meeting affordable housing needs.
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3. Assign up-front a pool of at least 234 ROGO allocatiolls for
workforce/affordable housing from the following sources: 53 (existing
unused allocations); 156 ROGO restored allocations lost in ROGO Years
9 through 12 due to reductions in the County's annual allocations made by
Administration Commission rulemaking; and 25 allocations lost in ROGO
Year 10 due to lack of nutrient reduction credits. [DCA will need to
recommend the restoration of these lost allocations to Governor and
Cabinet. ]
4. Identify potential sites for workforce/affordable housing as part of the
Land Acquisition Master Plan.
Proposed Commitments by the DCA
I. Secure $20 million over the next two years for purchases of land for
affordable/workforce housing over the next two years.
2. Restore to Monroe County the 181 allocations lost between ROGO Years
9 through 12 due to reductions in the County's annual allocations made by
Administration Commission rulemaking and lack of nutrient reduction
credits in Year 10; those restored allocations are to be assigned to
affordable/workforce housing.
3. Restore to Monroe County its annual ROGO allocation to 197 contingent
upon the number of market rate units being held to a maximum of 126 per
year and the number of affordable housing units being increased to at least
71 per year. [The current allocation is a total of 158 of which 126 is
market rate and 32 is affordable.]
HABITAT PROTECTION
Proposed Commitments by the Coo
I. Institute an interi moratorium on ROGO/NRO
areas containing ative upland vegetated lands 0
within Conservation and Natural Areas until amen ent
Comprehensive Plan and Land Development Regulations.
modified version of Option #3 in the staff memorandum
separate cover.]
2. Amend the Comprehensive Plan and/or Land Development Regulations
to:
a. Adopt Tier Overlay Map designations;
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b. Revise ROGO/NROGO based on Tier System utilizing a "new"
positive point approach that predominately relies on land
dedication and aggregation;
c. Revise the environmental regulations using the Tier system rather
than relying upon the existing and inadequate Habitat Evaluation
Index.
3. Prepare a Land Acquisition Master Plan including strategies, funding, and
non- funding sources for acquisition and management of conservation
lands, retirement of development rights, and acquisition of affordable
housing sites. [DCA is asked to commit to getting the participation of state
and federal agencies in this effort.]
Proposed Commitments by the DCA
I. Secure $93 million for the purchase by the State of environmentally
sensitive lands under CARL.
2. Actively assist and support the County's efforts to expand CARL
boundaries to include a majority of vacant privately owned lands within
the County's Conservation and Natural Areas.
3. Facilitate and cooperatively work with the County in the preparation of a
Land Acquisition Master Plan.
4. Consider rescinding or abating its Notice of Violation to the County based
on the commitments made by the County in this agreement.
5. Actively participate and assist the County in the legal defense of any
takings claims or claims under Bert Harris related to the Comprehensive
Plan and this agreement and help the County secure state funding grant
assistance to cover these claims.
6. Authorize the County to borrow "future" 41 nutrient reduction credits to
be generated from the expansion of the KW Resort Utility on Stock Island
to retroactively eliminate the backlog of ROGO allocations. [County will
lose these allocations in this ROGO year, if the backlog is not eliminated.]
7. Authorize the County to borrow, at least for affordable housing
allocations, "future" nutrient reduction credits to be generated from
wastewater projects in Stock Island, Bay Point, Conch Key and Key
Largo.
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REPORT TO GOVERNOR AND CABINET
Proposed Commitments by the County
I. Commits to implementing this cooperative agreement and working with
the DCA.
2. Commits to supporting the DCA partnership with the County before the
Governor and Cabinet.
Proposed Commitments by the DCA
I. Make a favorable report to the Governor and Cabinet that the County has
made substantial progress on its Work Program based on the mutual
commitments reached in this agreement.
2. Make recommendations to the Governor and Cabinet for any rule
amendments necessary to implement this agreement.
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