Resolution 039-2004
RESOLUTION 039 -2004
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
EXPRESSING SUPPORT FOR A PARTNERSHIP WITH THE
FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS (DCA) TO
MEET THE STATE'S AND COUNTY'S OBLIGATIONS UNDER
RULE 28-20.100, FLORIDA ADMINISTRATIVE CODE, AND THE
COUNTY'S YEAR 2010 COMPREHENSIVE PLAN;
COMMITTING THE COUNTY TO SPECIFIC
IMPLEMENTATION ACTIONS; REQUESTING RECIPROCAL
COMMITMENTS FROM THE DCA; AND DIRECTING COUNTY
STAFF TO PREP ARE AN INTERIM MORATORIUM
ORDINANCE PURSUANT TO GUIDANCE FROM LEGAL
COUNSEL
WHEREAS, Monroe County is obligated to implement a Work Program as
required by Rule 28-20.100, Florida Administrative Code; and,
WHEREAS, the Work Program is intended to provide guidance and a schedule
of objectives that must be completed to implement the Monroe County Year 2010
Comprehensive Plan; and,
WHEREAS, the Work Program, the County's Year 2010 Comprehensive Plan,
and Chapter 380, Florida Statutes, obligate the State in assisting the County; and,
WHEREAS, Rule 28-20.100 requires that the DCA, and the Governor and
Cabinet, sitting as the Florida Administration Commission, annually review the progress
being made by the County in accomplishing the objectives set forth in the Work Program;
and,
WHEREAS, on December 16, 2003, the Florida Administration Commission
upon the recommendation of the DCA, has determined that Monroe County has not
made substantial progress toward meeting the objectives of Year 7 of the Work Program;
and,
WHEREAS, the Florida Administration Commission has directed the DCA to
prepare proposed rules to amend the County's Comprehensive Plan for the Commission
consideration on January 27, 2004; and,
WHEREAS, after the December 16, 2003, Florida Administration Commission
meeting, Secretary Castille reiterated her previous offer to secure grant funding
assistance for wastewater construction, land acquisition, and affordable housing for
C:\ WINNliProfiles\Sutton-Sheila\Temporary Internet Files\OLK4\resol-fac-O 1-04Rl_.doc
Page 1 of 4
Monroe County and to form a partnership between the DCA and Monroe County to work
toward satisfaction of Work Program goals; and,
WHEREAS, in an effort to reach agreement on a partnership between the DCA
and Monroe County, Secretary Castille and the Board of County Commissioners met at a
special Commission workshop meeting held on January 6,2004; and,
WHEREAS, at that workshop meeting the Growth Management Division
Director presented for discussion purposes a "Conceptual Proposal for a Cooperative
Agreement between the DCA and Monroe County to Address Significant Work Program
Issues" (the "Conceptual Proposal"), which modified the Growth Management Division
report dated December 31, 2003, and recommended one of the six options for interim
protection contained in that report; and
WHEREAS, the Board received and considered at the workshop meeting an
opinion letter of Growth Management Division litigation counsel dated January 6, 2004
(a copy of which is attached hereto as "Exhibit Two" and made part of this resolution)
that recommends inclusion of four specific provisions in a moratorium ordinance to make
it legally defensible (the "legal recommendations"); and
WHEREAS, the Board of County Commissioners considered the
recommendations of its Growth Management Division and Secretary Castille and
approved the Conceptual Proposal in substance with revisions, including the legal
recommendations; and
WHEREAS, both the Board and Secretary Castille recognize that the existing
maps utilized to delineate the extent and location of Conservation and Natural Areas will
require further refinement in order to protect valuable habitat and to avoid overbroad
restriction on lands suitable for development, and that the public should have the
opportunity to review and comment on the maps before they are incorporated into a
moratorium ordinance and other growth management regulations; and
WHEREAS, the County Growth Management Division staff and its legal counsel
prepared for Board consideration a "Cooperative Agreement between the DCA and
Monroe County to Address Significant Work Program Issues" (the "Cooperative
Agreement") based on the revised Conceptual Proposal as approved by the Board on
January 6,2004, with other minor revisions recommended by staff; and
WHEREAS, the Board of County Commissioners has considered the draft
Cooperative Agreement and has received further public input at a special meeting held
January 21,2004;
C:\Documents and Settings\jth\Local Settings\Temporary Internet Files\OLKC\resol-fac-Ol-04Rdoc
Page 2 of 4
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
Section 1: Monroe County commits to a cooperative relationship in the nature of a
partnership with the Florida Department of Community Affairs, to accomplish the shared
purpose of meeting joint obligations under Chapter 380, Florida Statutes, Rule 28-
20.100, F.A.C., and the Monroe County Year 2010 Comprehensive Plan.
Section 2: The Mayor of Monroe County is hereby authorized to execute the
Cooperative Agreement which is attached hereto as "Exhibit One" and made part of this
Resolution,
Section 3: The Cooperative Agreement is intended to link the respective
commitments of Monroe County and DCA to achieve Work Program objectives of
creating wastewater infrastructure, workforce/affordable housing, and habitat protection.
The extent of the County's bonding commitments and financial expenditures corresponds
to the State's performance in fulfilling its commitments under the Cooperative
Agreement.
Section 4: The County Administrator shall direct the Growth Management Division
with the assistance of legal counsel to prepare a Moratorium Ordinance for habitat
protection in conformity with the Cooperative Agreement, incorporating therein the legal
recommendations,
Section 5: The County Administrator shall direct the Growth Management Division
to review and to propose appropriate revisions to the Conservation and Natural Areas
maps, and in that process shall invite input from DCA and the public, The Conservation
and Natural Areas maps, including proposed revisions thereto, shall be included in the
public hearings on the Moratorium Ordinance.
Section 6: A copy of this resolution is to be transmitted by the Mayor to Secretary
Colleen Castille, the Governor and Cabinet, Senator Bullard, and Representative
Sorensen.
[THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK.]
C:\Documents and Settings\jth\Loca1 Settings\Temporary Internet Files\OLKC\resol-fac-OI-04R.doc
Page 3 of 4
PASSED AND ADOPTED, by the Board of County Commissioners, Monroe
County, Florida at a regular meeting of said Board held on the 21st day of January, AD.,
2004,
BOARD OF COUNTY COMMISSIONERS
MONROE COUNTY, FLORIDA
Mayor Murray Nelson Yes
Mayor Pro Tern David Rice Yes
Commissioner Charles "Sonny" McCoy Yes
Commissioner George Neugent Yes
Commissioner Dixie Spehar Yes
~'~1(~
BY: //UU
MA YORICH ERSON
ATTEST: DANNYL K. KOLHAGE, CLERK
BY: SbMc. tJJ)~
DEPUTY CLERK
Exhibits
.1
o t:::>
~l>
o''?~
,....,r-::::
,,~-<
on:
C::;O~
::l:;. ~}
-in~
:< :-1 ::r:
""l-J ):,.
r- C;)
h r'1
C:\Documents and Settings\jth\Loca1 Settings\Temporary Internet Files\OLKC\resol-fac-Ol-04Rdoc
Page 4 of 4
~
fS; :-::;
(".) .::}
~ J ~::J
""',-,
~
c:::. - '1
..c- r..:::
r,.,
c
-r,
c)
::t1
::D
nl
o
i;;
;;e
I'\.)
0'\
EXHIBIT ONE
Cooperative Agreement between the DCA and Monroe County to Address
Significant Work Program Issues
This Cooperative Agreement sets forth the reciprocal commitments of the Florida
Department of County Affairs ("DCA") and Monroe County ("County") to implement
the Year 20 I 0 Comprehensive Plan Wark Program and the recommendations of the
Florida Keys Carrying Capacity Study. The specific commitments of each party are
linked to, and dependent upon, performance of the other party's commitments hereunder.
WASTEWATER
Commitments by the County
1. The County will initiate and take all steps legally necessary to obtain up
to $40 million in bond financing secured by infrastructure tax funds to
match $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. The County, in cooperation with the Florida Keys Aqueduct Authority and
the Key Largo Wastewater Treatment District, will initiate and take all
steps legally necessary to obtain up to $80 million in bond financing
secured by connection fees, to fund construction and expansion of
wastewater projects.
The total amount to be bonded by the County would be up to $120 million, which
is 50 percent of estimated total costs of remaining projects.
Commitments by DCA
1. Secure $10 million in grants to match the $20 million to be bond-financed
by Monroe County for wastewater projects in FY 2004.
2. Secure $20 million in Federal/State grants to match $20 million to be
bond-financed by Monroe County for wastewater projects in FY 2005.
The above are minimum commitments by DCA; Secretary Castille has committed
DCA to endeavor to secure additional state funding and to work with the County
to obtain additional federal funding. DCA has already identified $18 million in
Governor's FY 05 Budget for Florida Keys wastewater construction.
Page 1 of5
EXHmIT ONE
WORKFORCE/AFFORDABLE HOUSING
Commitments by the County
1. The County will initiate and take all steps legally necessary to obtain up
to $10 million in bond financing, secured by its half-penny of the tourist
impact tax, to purchase land for workforce housing.
2. The County will initiate and hold public hearings on amendments to the
Comprehensive Plan and Land Development Regulations regarding
affordable housing allocations and assignment of these allocations, to
increase and more effectively distribute such allocations in order to
address affordable housing needs.
3. The County will assign to a workforce/affordable housing pool at least
187 ROGO allocations; such allocations to be obtained from the
following sources: 53 existing unused allocations; 109 ROGO restored
allocations lost in RaGa Years 9 through 12 due to reductions in the
County's annual allocations made by Administration Commission
rulemaking; and 25 allocations lost in ROGa Year 10 due to lack of
nutrient reduction credits. This commitment requires that DCA
recommend to the Governor and Cabinet the restoration of these lost
allocations. In addition to the 109 RaGa restored allocations referenced
above, the County will support the allocation to Marathon of 47
allocations needed for a proposed Florida Housing Finance Corporation
project that will remain affordable in perpetuity.
4. The County will identify potential sites for workforce/affordable housing
and will include appropriate sites in the Land Acquisition Master Plan.
Commitments by DCA
1. Secure $3 million, and initiate all steps necessary to secure an additional
$17 million, in grant funds for affordable/workforce housing over the next
two years.
2. Restore to Monroe County the 134 allocations lost between ROGa 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. The Department will restore an additional
47 allocations upon documentation of proposed workforce housing
proposals.
Page 2 of5
EXHffiIT ONE
3. Restore Monroe County's annual ROGO allocation of 197 units, with the
number of market rate units not to exceed 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 are market rate and 32 are
affordable.]
HABIT AT PROTECTION
Commitments by the County
1. The County will draft and hold public hearings to adopt an interim
moratorium on ROGO/NROGO allocation awards in areas containing
tropical hardwood hammock or pinelands of two acres or greater within
Conservation and Natural Areas, such moratorium to extend for up to one
year or until amendments are made to the Comprehensive Plan and Land
Development Regulations for protection of those habitats. To assure
precise identification of those lands warranting special protection, the
County Growth Management Division staff will prepare a map of
Conservation and Natural Areas, utilizing Florida Marine Resources
Institute ADID Maps, the most recent aerial photographs, site visits as
necessary, and input from DCA and the public.
2. Amend the Comprehensive Plan and/or Land Development Regulations
to:
a. Adopt Tier Overlay Map designations;
b. Revise ROGO/NROGO based on Tier System utilizing a positive
point approach that predominately relies on land dedication and
aggregation;
c. Revise the environmental regulations using the Tier system rather
than the existing 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 participation in this effort will be needed to secure
assistance of state and federal agencies in this effort.
4. The Conservation and Natural Area (CNA) maps, including any proposed
revisions thereto, shall be included in the public hearing on the
moratorium ordinance. The Monroe County Land Authority will target
for purchase from voluntary sellers appropriate environmentally sensitive
lands that are contained within upland native habitat of 2 acres or more
Page 3 of5
EXHIBIT ONE
outside the CNA. The County will set aside $2 million of reserve ROGa
funds for this purpose.
5. Prepare and submit to DCA an expeditious schedule of public hearings,
comprehensive plan amendments, and land development regulations to
ensure that the moratorium is terminated within one year.
Commitments by DCA
1. Secure $93 million for the purchase by the State of environmentally
sensitive lands under CARL.
[Secretary Castille has publicly committed to request the Legislature to
provide up to $93 million in Florida Forever Funds for acquisition of
sensitive lands.]
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. Actively participate in, and assist the County with, the legal defense of
any takings claims and Bert Harris Act claims arising from the
Comprehensive Plan or actions contemplated by this document. Help the
County secure state funding grant assistance to cover these claims.
5. Authorize the County either to borrow 41 "future" nutrient reduction
credits to be generated from the expansion of the KW Resort Utility
facilities on Stock Island to retroactively eliminate the backlog of ROGa
allocations, or to allow RaGa allocations to be rolled over. [County will
lose these allocations in this RaGa year if the backlog is not eliminated
or roll-over is not authorized.]
6. Authorize the County to borrow for affordable housing allocations, 187
"future" nutrient reduction credits to be generated from wastewater
projects in Stock Island, Bay Point, Conch Key and Key Largo.
7. Any borrowing of future nutrient reduction credits shall be contingent
upon the County's adoption of a bond and financing as proposed under the
County Wastewater Commitments.
Page 4 of5
EXHmIT ONE
REPORT TO GOVERNOR AND CABINET
Commitments by the County
1. Commits to implementing these reciprocal agreements in cooperation with
the DCA.
2. Commits to a partnership between the DCA and County to effectuate these
shared objectives.
Commitments by DCA
1. Report to the Governor and Cabinet that the County has made substantial
progress on its Work Program based on the mutual commitments set forth
in this agreement.
2. Make recommendations to the Governor and Cabinet for rule amendments
necessary to implement these commitments.
APPROVAL
Approval of this document by Monroe County will be evidenced by the signature
of the Mayor of Monroe County pursuant to Resolution of the Board of County
Commissioners. Approval by DCA will be evidenced by either the signature of the DCA
Secretary of a counterpart original hereof or by written communication of assent to the
terms hereof, signed by the DCA Secretary.
Executed by the tmdersigned Mayor of Monroe County pursuant to Resolution of
the Board of County Commissioners, Monroe County, Florida at a regular meeting of
said Board held on the 21 5t day of January, A.D., 2004.
BY: bt,~~ ~
MA~~R--- -- ~ (
Page 5 of5
EXHIBIT TWO
Karen K. Cabanas
Robert Cintron
James 1. 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
ROGOINROGO 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. ~
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 purpose!. The Resolution
I This would make it clear that the County is acting for rea~ 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,