Item R8BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: December 15, 2004 Division: Growth Management
Bulk Item: Yes No X Department: Planning and Environmental Resources
AGENDA ITEM WORDING: Public hearing to adopt an ordinance repealing Ordinance 19-2004 and
amending Section 9.5-119 (Environmental Restoration Standards and Agreements) and Section 9.5-346
(Transplantation Plan), Monroe County Code (MCC) to provide more effective standards for restoration
of habitat, eliminate transplantation as a mitigation option and replace it with payment of mitigation fees
into the County's "Restoration Fund" to be renamed. (One hearing only required.)
ITEM BACKGROUND: Concerns have been raised regarding the illegal clearing of environmentally
sensitive lands and development occurring with the benefit(s) of permits. As a result of these concerns,
and ordinance to amend Section 6-29, Monroe County Code (MCC) was drafted and approved to
increase fees for after -the -fact (ATF) permits, including the provision of mitigation fees for unlawful
filling of wetlands; and the Growth Management Division staff was directed to prepare amendments to
Section 9.5-119, MCC, to strengthen the standards for restoration of habitat areas that are illegally
cleared. Staff was also directed to amend Section 9.5-346, MCC, to change the requirements for
transplantation to eliminate transplantation as a mitigation option, which will provide a dedicated
revenue source for supporting the County's management of its conservation lands. These amendments
were brought to the Board resulting in adoption of Ordinance 19-2004. Subsequent to adoption, portions
of Ordinance 19-2004 were found to be inconsistent with Florida Statutes by the Growth Management
Division's special legal counsel. Staff has prepared amendments that cure the legal deficiencies of the
previously approved Ordinance.
PREVIOUS RELEVANT BOCC ACTION: Adoption of Ordinance 19-2004 on June 16, 2004
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS: Approve
TOTAL COST: NA BUDGETED: Yes _ No
COST TO COUNTY: NA SOURCE OF FUNDS: NA
REVENUE PRODUCING: Yes X No AMOUNT PER YEAR Approx. $250,000 - $350,000
APPROVED BY: County Atty X OMB/Purchasing _/,sk Management
DIVISION DIRECTOR APPROVAL:
DOCUMENTATION: Included X
DISPOSITION:
Revised 2/27/01
, AICP
To Follow Not Required
AGENDA ITEM #r�
PROPOSED ORDINANCE
ORDINANCE NO. —2004
AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS REPEALING ORDINANCE 19-2004 AND
AMENDING SECTIONS 9.5-119 AND 9.5-346, MONROE COUNTY
CODE; REVISING REQUIREMENTS FOR RESTORATION OF LANDS
CLEARED WITHOUT BENEFIT OF PERMIT OR BEYOND SCOPE OF
A PERMIT; DELETING TRANSPLANTATION REQUIREMENTS AND
SUBSTITUTING WITH REQUIREMENTS FOR PAYMENT INTO THE
MONROE COUNTY ENVIRONMENTAL LAND MANAGEMENT AND
RESTORATION FUND; PROVIDING FOR THE REPEAL OF ALL
ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR
INCORPORATION INTO THE MONROE COUNTY CODE OF
ORDINANCES; PROVIDING FOR SEVERABILITY; AND PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, the Board of County Commissioners approved an ordinance amending
Section 6-29, Monroe County Code (MCC), to increase the fees for after -the -fact permits,
including the provision of mitigation fees for unlawful filling of wetlands; and,
WHEREAS, the Growth Management Division staff was directed to prepare
amendments to Section 9.5-119, MCC, to strengthen the standards for restoration of habitat
areas that are unlawfully cleared without benefit of a permit; and,
WHEREAS, in reviewing Section 9.5-119, MCC, and related regulations, the Growth
Management Division staff determined that changes in the transplantation requirements in
Section 9.5-346, MCC, for on -site and off -site mitigation of cleared habitat areas were
warranted as transplantation has not been proven to be a successful or cost-effective measure;
and,
WHEREAS, the Growth Management Division staff prepared amendments to Section
9.5-119, MCC, to strengthen the restoration requirements and increase the mitigation
requirements for the clearing of lands without benefit of a permit; and,
WHEREAS, the staff also prepared amendments to Section 9.5-346, MCC, to replace
transplantation as a mitigation option in the clearing of habitat with a requirement for payment
of mitigation fees into the county's "Restoration Fund", now renamed the `Environmental Land
Management and Restoration Fund"; and,
WHEREAS, the Planning Commission recommended approval to the Board of County
Commissioners of the proposed amendments with additional provisions to increase the penalties
for unlawful clearing of environmental habitat; and,
WHEREAS, at the June 16, 2004, public hearing on the proposed ordinance, the Board
of County Commissioners was informed by the County Attorney of his concerns about the
legality of the penalty provisions of the proposed ordinance as applied to unlawful clearing of
habitat; and,
WHEREAS, the County Attorney recommended that the Board proceed to adopt the
ordinance with the understanding the ordinance would be submitted to the Growth Management
Division's special legal counsel for an in-depth legal review to ascertain the validity of the
penalty provisions of the ordinance; and,
WHEREAS, the Board of County Commissioners adopted Ordinance 19-2004,
amending Sections 9.5-119 and 9.5-346, MCC; and,
WHEREAS, the Growth Management Division rendered the adopted ordinance to the
Florida Department of Community Affairs for its approval pursuant to Chapter 380, Florida
Statutes; and,
WHEREAS, subsequent to the adoption of Ordinance 19-2004, the Growth
Management Division's special legal counsel, the firm of Freilich, Leitner & Carlisle rendered a
legal opinion that the penalty elements of the adopted ordinance were inconsistent with Florida
Statutes; and,
WHEREAS, based upon this legal opinion, the Growth Management Director in
consultation with the County Attorney, notified the Florida Department of Community Affairs
of the County's need to withdraw Ordinance 19-2004 to cure the legal deficiencies in the
adopted ordinance; and,
WHEREAS, the Growth Management Division staff in coordination with the County
Attorney, has prepared amendments to Sections 9.5-119 and 9.5-346 that cure these legal
deficiencies;
WHEREAS, the proposed amendments to the restoration standards of the county's
regulations are intended to ensure that such lands are fully restored and to provide a dedicated
funding source for restoration and management of public conservation land; and,
WHEREAS, the Board of County Commissioners has reviewed the proposed
amendments to Sections 9.5-119 and 9.5-346, recommended by the Planning Commission and
Growth Management Division; now therefore
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA, THAT:
[The proposed amendments are shown in strike-through/underline format. The strike -through
language is to be eliminated and the underlined language shall be added.]
Section 1. Ordinance 19-2004 is hereby rescinded.
Section 2. The title to Section 9.5-119, MCC, is hereby amended as follows:
Sec. 9.5-119. Environmental restoration standards and -. 1
Section 3. Section 9.5-119 (a), MCC, is hereby amended and reorganized into paragraphs
(a) and (b) as follows:
(a) In the event any land clearing eccws is occurring on a site and ;AagiGh such
clearing is outside the scope of any permit issued or for which no permit was issued, theR
1 Restoration agreements are being eliminated as the proposed language will not allow such agreements which
allowed stop work orders to be removed or permitting even though restoration had not taken place.
the building official or other authorized county official, shall issue a stop work order
el,�ll rnm�,r in offo..4 „n4;t 211 t1 @ rnatQ;atior, cwiditions have heau ma' If any land clearing
has occurred for which no permit has been issued or beyond the scope of an issued permit,
such activity shall be subject to code enforcement proceedings under chapter 6.V Except
for issuance of an approved after -the -fact permit for restoration, the stop order shall remain
in effect and no application for a building permit shall be processed or issued for the site
until the violation for unlawful land clearing is corrected pursuant to paragraph (b).
(b) A land clearing violation is corrected if all the following conditions are met in
accordance with a restoration site plan approved by the county biologist:
(1) The site shall be restored to its pre -violation grade.
(2) Roplagematat of tho All native trees, shrubs, and groundcovers on the unlawfully
cleared site shall be replaced with native plant species as appropriate to the site
unlawfully cleared. The trees shall be of a size and maturity commensurate to the
unlawful clearing as determined by the county biologist. The native species mix
shall consist of the approximate percentages of the predominant tree, shrub and
groundcover species on the site unlawfully cleared prior to the violation, but if
any endangered or threatened tree, shrub or groundcover species were unlawfully
cleared, then those species shall be replaced with plants of a size and maturity
commensurate to and related to the unlawful clearing as determined by the
county biologist regardless of predominance.
(3) All replanted trees, shrubs, and groundcovers shall be located on site to the,
within the same areas that were unlawfully cleared .4 U
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(4) A monetary guarantee for the restoration work, as stipulated in paragraph (e),
shall be provided in the form of a surety bond.
2 This revision provides clear authority to code enforcement officers or other duly authorized County officials to
place stop work orders.
s This revised language reflects the fact that often times unlawfully clearing has already occurred before a stop
work order can be placed.
4 The concept of off -site transplantation is not viable based on the experience of Miami -Dade County and the
Monroe County biologists.
(5) The restoration work to correct the land clearing violation in accordance with
subsections (1) through (3) above shall be required to receive final inspection
approval by the county biologist.
Section 4. A new Section 9.5-119 (c), MCC, is hereby created as follows:
(c) Any violation for land clearing that has been corrected pursuant to paragraph (b)
above shall be subject to the following additional conditions to ensure the growth and
viability of the restored habitat:
(� Except as expressively authorized by the county biologist pursuant to an
approved phased restoration site plan, Aall invasive exotic plant species, as
�nribad in nhapto; VTT paggs 1�.Z 17(i 17Q an 183 i0101; o TT 44on;0n
$.rrrv�ee ::: �::ap ems: i :: rPee
"Up't , comprnhonsiye, T and T s@ on the most current Florida Exotic Pest
Plant Council's list of Category I or II invasive exotic plants shall be
continuously removed during the three 3 ow year period described in
subsection (2) below.
Section 5. Section 9.5-119 (b), MCC, is hereby relabeled as Section 9.5-119(c)(2) and
amended as follows:5
(t4Q At least eighty (80) percent of the trees replaced, as described in subsection sec.
9.5-119 (&)�(2), shall be viable at the end of a f^r a one- three 3 year
period alit from the date of the final inspection of the restoration work fast
Wig; however, dead or dying trees may be replaced, subject to prior
approval by the county biologist, during the ono- three 3 year period in order to
assure the eighty (80) percent minimum is met at the Send of three years.
The restoration work shall be inspected by the county biologist on an annual
basis during the three-year period and shall require a final inspection at the end
of the three year period. He may direct that dead or dying trees be replaced as
he deems necessary to ensure the eighty (80) percent standard will be met at the
end of the three years.
Section 6. Section 9.5-119 (d) , MCC, is hereby created to read as follows:6
(d) Failure to meet the conditions of sec. 9.5-119 (c) above, shall be considered a
violation of this chapter and subject to code enforcement proceedings under chapter 6.3.
Section 7. Section 9.5-119 (c), MCC, is hereby relabeled as paragraph (e) and amended as
follows:
s The three-year time frame is necessary to ensure growth and viability of replanted plant materials.
6 This new language clearly identifies that failure of the property owner to meet the maintenance provisions of the
restoration is considered a violation and subject to code enforcement proceedings.
(e) The permit holder shall be required through a surety bond, to guarantee the
satisfactory completion of the restoration work in accordance with the approved restoration
site plan and the survival of at least eighty (80) percent of the replanted trees for a period of
at least three 3 ears after the issuance of the after -the -fact permit for the restoration
work. -
Guarantee amount: The amount of the restoration guarantee shall cover the full
costs of the restoration work described in sec. 9.5-119 (b) (1) through (3). The
estimated costs of the restoration described in sec. 9.5-119 (b) shall be the sum of
a and b, below:15
-
a. One hundred (100) percent of the estimated cost of the restoration described insubecti" sec. 9.5-119 (*( )(1)
as estimated by the coun £� engineer; or alternatively, one hundred- (M) 150 percent of the price of a
binding contract for the restoration work required bysubrectioA sec. 9.5-119 (a)(b)(1) entered into with a contractor qualified to perform
such work.
b. One hundred (100) percent of the estimated cost, as estimated by the
building official, of performing the restoration work described in
subgectio sec. 9.5-119(b)(2) and 3 ; or, alternatively, one hundred_
fifty (1004 150percent of the price of a binding contract for the
restoration work described in sec. 9.5-119 (b)(2) and 3
entered into with a Florida licensed landscape architect.
U,Q Surety bond: The surety bond shall be in a form and with a bonding company
approved by the county attorney. The bond shall be payable to the county in the
amount of estimated total cost for restoration work as calculated in sec.9.5-
119(e)(1) above, and enforceable, on or beyond a date W'ot.� thirty-six
months from the date of the permit issued for the
restoration work. Release of any bond shall be conditioned upon final approval
The current regulations do not require monetary guarantees except in the case of a restoration agreement which
have been eliminated in the proposed ordinance. This guarantee is needed to ensure restoration is completed and
the survivability of the replacement plants is ensured.
s The estimated costs to base the amount of surety bond is higher for amounts based on construction contracts to
provide some protection for the County in case of a default where the construction contracts may not reflect true
costs.
by thehuddi^^ ^f^"' county biologist of the restoration work as stipulated in
4:7sec. 9.5-119 (c)(2).9
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(3) Default: All guarantees shall provide that if the permit holder failed to complete
required restoration work accordance with the restoration site plan and failed to comply wrth
the requirements of sec 9 5-119 (c)(2), the director of planning in consultation with the
county attorney, may take the following action: Inform the bonding company in writing of
9 The options for use of a cash escrow and letter of credit have been eliminated and replaced with surety bond
which is easier to administer and ensures funds will be available even if property owner goes out of business.
default by the
holder and
uest that it take necessary actions to complete the
required improvements.'—"
Section 8. Section 9.5-346 ("Transplantation Plan") MCC, is hereby deleted and replaced with
the following:"
Section 9 5 346 Mitigation standards and county environmental land management and
restoration fund.
(a) Mitigation standards: The removal of any listed threatened, endangered,
commercially exploited, and regionally important native plant species and all native trees with a
diameter at breast height (DBH) of greater than four (4) inches shall require payment to the
CountyEnvironmental Land Management and Restoration Fund in an amount sufficient to
replace each removed plant or tree on a two to one (2.1) basis.— The number, species, and sizes
of trees and plants to be mitigated shall be identified in an existing conditions report approved
oved
by the county biologist in accordance with the minimum size requirements set forth in sec. 9.5
367.
(b) Mitigation fees determination: The mitigation fee shall be based on the
replacement cost of the specific plants and trees The costs for replacement plants and trees
shall be based upon a price schedule maintained and updated annually by the county biology
This schedule shall be based on price quotes by at least three (3) private plant nurseries within
Monroe County or Miami -Dade County.
(c) County environmental land management and restoration fund: The board of
county commissioners may establish a special revenue fund called the Monroe County
Environmental Land Management and Restoration Fund. Revenues and fees deposited in this
fund shall be used for restoration and management activities of public resource protection and
conservation lands, as specifically detailed by resolution of the board of county
rs-
commissioners.—
Section 9. 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 10. All ordinances or parts of ordinances in conflict with this ordinance are hereby
repealed to the extent of said conflict. The repeal of an ordinance herein shall not repeal the
repealing clause of such ordinance or revive any ordinance which has been repealed thereby.
Section 11. This ordinance does not affect prosecutions for ordinance violations committed
prior to the effective date of this ordinance; does not waive any fee or penalty due or unpaid on
10 This default language has been added similar to language for subdivision improvements in Section 9.5-85.
11 The entire concept of on -site transplantation, except for restoration, and off -site transplantation has been
eliminated due to the problems with plant survivability. Instead, the concept is that for any clearing of habitat, the
permit holder will have to pay a mitigation fee into the County's environmental land management and restoration
fund. The County will be in a better position to direct such funds to where they are needed the most. The three —
to -one requirement for replacement of native plants within cleared areas is consistent with Comprehensive Policy
205.2.9 for off -site transplantation.
12 The existing off -site transplantation requirement is 3 to 1; however, as on -site transplantation is no longer an
option, for purposes of mitigation the 2 to 1 ratio is more than sufficient to cover the costs of replacement and
installation.
13 This codifies the establishment of an environmental land management and restoration fund, which has already
been authorized by resolution of the Board of County Commissioners. Funds from this account will not be used for
land acquisition purposes and will be detailed by the Board of County Commissioners through policy resolutions.
the effective date of this ordinance; and does not affect the validity of any bond or cash deposit
posted, filed, or deposited pursuant to the requirements of any ordinance.
Section 12. 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 Florida Department of Community
Affairs or Administration Commission approving the ordinance.
Section 13. This ordinance shall be transmitted by the Planning and Environmental Resources
Department to the Florida Department of Community Affairs to determine the consistency of
this ordinance with the Florida Statutes.
Section 14. 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 numbered to conform to the uniform numbering system of the Code.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting of said Board held on the day of AD, 2004.
(SEAL)
Attest: DANNY KOLHAGE, Clerk
an
Deputy Clerk
Mayor Dixie Spehar
Mayor Pro Tem David Rice
Commissioner Charles "Sonny" McCoy
Commissioner George Neugent
Commissioner Murray Nelson
BOARD OF COUNTY COMMISSIONERS,
MONROE COUNTY, FLORIDA
LIZ
Mayor Dixie Spehar
ACDS,4A PR EATO FOAM
BOCC STAFF REPORT
County of Monroe
Planning and Environmental Resources
Department
2798 Overseas Highway
Marathon, Florida 33050
Voice: (305) 289-2500
FAX: (305) 289-2536
To: The Board of County Commissioners
Board of County Commissioners
Mayor Dixie M. Spehar, Dist. 1
Mayor Pro Tern Charles McCoy, Dist. 3
Comm. George Neugent, Dist. 2
Comm. David P. Rice, Dist. 4
Comm. Murray E. Nelson, Dist. 5
From: Ralph Gouldy, Sr. Administrator, Environmental Resources
Date: December 3, 2004
Ref: Addendum to Staff Report: Planning Commission Action on Revisions to MCC Section
9.5-119, Environmental Restoration Standards, and 9.5-336, Transplantation
On December 1, 2004, the Planning Commission considered revisions to Monroe County Code
Sections 9.5-119 and 9.5-346, which were brought forward following advice from legal counsel
that previously adopted revisions to these Sections (Ordinance 19-2004) contained inconsistencies
with Florida Statutes.
Specifically, legal counsel opined that provisions of the previously adopted revisions to Section
9.5-119 that require payment of mitigation monies and suspension of permitting for a period of
three years constituted "penalties" above and beyond "correction" of the illegal action and are
inconsistent with Chapter 162, Florida Statutes.
Although Staff believes the submitted revisions strengthen current Restoration Standards by
requiring a surety bond payable to the County and extension of the vegetation viability period and
invasive exotic removal from one to three years, the Planning Commission was concerned that
deterrents to illegal clearing were not strong enough. Although advised by the Planning
Commission Legal Counsel that deterrents considered to be fines or penalties beyond correction of
the illegal action could not be supported legally in MCC Chapter 9.5, the Planning Commission
chose to recommend approval of only the revisions to Section 9.4-346, Transplantation, with a
recommendation to raise the penalties for illegal clearing.
Staff contends that the after -the -fact fees, surety bond requirements, and the increased period of
viability / invasive exotic removal of the proposed revisions strengthen current standards and are
sufficient to ensure restoration, while increased penalties cannot be legally sustained pursuant to
Florida Statutes. Furthermore, Code Enforcement will vigorously pursue clearing violations that
are irreparable or irreversible in nature, which carry significant monetary fines. Therefore, Staff
recommends that the Board consider approval of the ordinance as proposed.
MEMORANDUM
TO: The Monroe County Board of County Commissioners
FROM: K. Marlene Conaway
DATE: November 19, 2004
MEETING DATE: December 15, 2004
RE: REVISIONS TO MONROE COUNTY CODE, SECTION 9.5-119 and 9.5-346
BACKGROUND
Concerns have been raised by the public, the Monroe County Board of County
Commissioners (BOCC) and County staff regarding the illegal clearing of
environmentally sensitive lands and development occurring without the benefit of
permit(s). As a result of these concerns, an ordinance to amend Section 6-29, Monroe
County Code (MCC) was drafted and approved to increase the fees for after -the -fact
permits, including the provision of mitigation fees for unlawful filling of wetlands. In
addition to the aforementioned ordinance, Growth Management Division staff were
directed to prepare amendments to Section 9.5-119, MCC, to strengthen the standards for
restoration of habitat areas that are unlawfully cleared and as a result of that, staff has
determined that changes in the transplantation requirements in Section 9.5-346, MCC, for
on -site and off -site mitigation of cleared habitat areas are warranted in conjunction with
the changes to Section 9.5-119.
II ANALYSIS
The illegal clearing of and ensuing development on environmentally sensitive lands in
Monroe County has continued to occur in spite of fees and fines associated with after -the -
fact permits. The existing fee schedule was determined to not be effective in preventing
illegal clearing and development. The protection of environmentally sensitive lands is
supported strongly by the Year 2010 Comprehensive Plan and evidenced by the proposed
moratorium on development in certain Tier I lands. This text amendment will provide for
more effective standards for restoration of habitat areas, as well as to eliminate
transplantation as a mitigation option and replace it with a requirement for payment of
mitigation fees into the county's "Restoration Fund", to be renamed the "Environmental
Land Management and Restoration Fund. These changes are consistent with the Goals,
Policies, and Objectives of the Year 2010 Comprehensive Plan. As an "Area of Critical
State Concern", Monroe County is also governed by Chapters 9J-5 and 9J-12 of the
Florida Administrative Code (F.A.C.) and Chapter 163 of the Florida Statutes. The
proposed text amendment is consistent with 9J-5.013(2)(c) and 9J-5.013(3)(b). The
proposed text amendment will further the following Principles for Guiding Development:
• 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;
and
• To protect upland resources, tropical biological communities, freshwater
wetlands, native tropical vegetation, dune ridges and beaches, wildlife and
their habitat; and
• To limit the adverse impacts of development on the quality of water
throughout the Florida Keys.
III FINDINGS OF FACT
1. A text amendment to Section 9.5-119, MCC, is needed to strengthen the
restoration requirements for the clearing of lands without a permit due to the
continued occurrence of illegal clearing.
2. A text amendment to Section 9.5-346 is needed to eliminate transplantation as a
mitigation option and replace transplantation with a requirement for payment of
mitigation fees into the county's "Restoration Fund", hereby renamed
"Environmental Land Management and Restoration Fund."
3. Staff finds that the proposed changes are consistent with Section 9.5-
511(d)(5)b.(v) "recognition of a need for additional detail or comprehensiveness.
4. Staff finds the proposed changes to be consistent with the goals, objectives, and
policies of the Monroe County Year 2010 Comprehensive Plan.
5. Staff finds the proposed changes consistent with F.A.C. Chapters 9J-5 and 9J-12,
Florida Statutes, Chapter 163, and The Principles for Guiding Development.
IV PREVIOUS ACTION
Previously proposed revisions to MCC Section 9.5-119 and 9.5-346 resulted in Planning
Commission Resolution P33-04 and Board of County Commission Ordinance 19-2004.
Subsequent to adoption of Ordinance 19-2004, the Growth Management Division's
special legal counsel, the firm of Freilich, Leitner & Carlisle, rendered a legal opinion
that the penalty elements of the adopted ordinance were inconsistent with Florida
Statutes. Therefore, Growth Management Division Staff, in coordination with the
County Attorney, prepared amendments that cure these legal deficiencies, and propose
repeal of Ordinance 19-2004 and adoption of the revisions to MCC Section 9.5-119 and
9.5-346 contained within the attached Ordinance.
V PROPOSED TEXT
See attached Ordinance
Dec 13 04 05:15p p.2
To: Mayor Dixie Spehar and the Monroe County BOCC
From: Alicia Roemmele-Puntev
Date: December 13, 2004
Re: BOCC: 12/15/04: Public Hearings R-1 through R-8: Marathon, FL
TOTAL NO. of PAGES including COVER = 1g
Dear Mayor Spehar and Fellow Commissioners:
Attached are the documents I presented to the Planning Commission regarding the
above referenced proposed amendments. For ease, below is a SUMM.A of the points
previously made along with one or two "new" issues that did not come up during the
planning commission public input process.
SUMMARY:
• Amend the proposed amendments, and all other necessary sections of Code and Plan, to
stop the conversion through TREs of campground sites, RVs and non -lawfully established
residential mobile home units from being converted to, say, upscale short- term rental
condo units and the like.
• Add a policy to make it more explicitly clear that Land Dedication points cannot result
in new development (residential or commercial) on Tier I lands.
• Add a policy to make it more explicitly clear that the same standard for habitat
contiguity as stated in Ord. No. 018-2004 applies within Tier I lands. Specifically, that
only US-1 is deemed to interrupt the contiguity of terrestrial habitat.
• Amend the proposed amendments to include a PAS criteria called "Payment to the
Land Authority Fund". Suggested language: "Up to three points shall be awarded for a
monetary payment by the applicant to the County's land acquisition fund for the
purchase of lands for _.cons e_rsTation-andsetiremenLof-de-�lQpme.nt_rights.. The monetary
value of each point shall be set annually by the County based upon the average ad
valorem valuations of all vacant privately -owned IS/URM zoned platted lots on the
current Monroe County Real Property Tax Roll."
• Limit clearing on aggregated lots to only the one lot proposed for development by
placing conservation easements on the remaining aggregated parcels.
• Assign negative points for parcels/lots with upland terrestrial habitat (hammock and
rock pinelands) as a mechanism to distinguish these em,,,ironmentally sensitive parcels/
lots from scarified lots.
1 of 2 (12/13/04)
Dec 13 04 05:16p
p.3
• Amend and/or clarify proposed clearing requirements for Not -for -Profit Organizations
and Public Facilities to be consistent with the clearing standards for residential (market
rate and affordable housing) development.
• Assign negative cumulative points for State and Federally -listed Animal Species and
State Species of Special Concern as a mechanism to distinguish these environmentally
sensitive parcels/lots from scarified lots.
• Administratively adopt the recently updated USFWS Protected Animal Species Maps
(GIS); the FKCCS habitat maps; and, the State Species of Special Concern Maps.
• Include a policy that requires all TDR receiver sites to be Tier III lands.
• Amend the NROGO tier designation point assignments to match those of the ROGO in
order to help direct new commercial development to he least environmentally sensitive
areas. We don't have competition in the NROGO now; but, that could easily change.
In closing, as the many drafts and documents show, getting to this point has been a
daunting task. Staff and all those involved have done an awesome job and should be
congratulated. As is apparent, I continue to have some concerns. One which stands out
in my mind it the lack of a mechanism, other than clearing standards, to protect
tropical hardwood hammocks or rock pinelands in Tier II or Tier III.
Perhaps the vegetation survey could simply become a biological assessment based on all
available data, including but not limited to, existing conditions maps, federal and state
listed species maps and the onsite evaluation. The only way to make sure we are really
protecting the habitat, as required by law, is to assess what is currently on the ground.
It seems inconsistent to do otherwise. For example, Policy 1oi.6.5 states the County
shall pursue land acquisition from private property owners in a designated Tier II area
who are denied a building permit because the development would require "the clearing
Of 5,000 square feet or more of upland tropical hardwood hammock or pinelands
habitat." So, unless I am missing something, we will buy environmentally sensitive
habitat in Tier I1; but, only after the applicant has spent money and waited for four
years. It seems fairer to make the allocation more difficult in the first place and possibly
avoid this scenario, while at the same time creating policies more consistent with State
Statues.
Thank you, once again, for your time in this matter.
Sincerely; _
Alicia Putnev
872-8888 -Phone
872-8820 - Fax
2 Of 2 (12/13/04)
Dec 13 04 05:16p
p.4
Mr. Lynn Mapes
Planning Commission Chair
Monroe County
Suite 410
2798 Overseas Highway
Marathon, FL. 33050
October 3, 2004
Re: Morro.e_.C.ounty.Planning_Commission_Agenda.Item: ..October.6,2o04,_
Marathon,Florida,
Agenda_items 2.through_.5_as-fo loma:.
"I.) Text -Amendment: Section 9.5-511 and Florida Statues 125 & 163: THE PLANNING
DEPARTMENT is proposing an amendment to the Monroe County Land Development
Regulations renumbering existing 9.5-256 to 9.5-271 and adding a new Section 9.5-256 Tier
Overlay District, providing criteria for designation of Tier boundaries and providing a
mechanism for Tier Overlay Map amendments.
3.) Land -Use -District -Map Amendment: Section 9.5-511 and Florida Statues 125 & 163: The
Planning Department is proposing to amend the Land. Use District Maps to include the Tier
Overlay District on all lands in tunincorporated Monroe County in the Florida Keys between
Key West and Ocean Reef. Bowndaries for Tier I, Tier II:und Tier III are designated as required
in Goal 105 of the 2010 Comprehensive Plan following the criteria in Section 9.5-256.
4.) Text-Amendinent: Section 9.5-511 and Florida Statues 125 & 163: THE PLANNING
DEPARTMENT is proposing the following amendments to the MONROE COUNTY YEAR
2010 COMPREHENSIVE PLAN to implement Goal 105 of the 2010 Comprehensive Plan and
the Tier Overlay system.
5.) TextAmendment: Section 9.5-511 and Florida Statues 125 & 163: THE PLANNING
DEPARTMENT is proposing the following amendments to the MONROE COUNTY LAND
DEVELOPMENT REGULATIONS to implement Goal 105 of the 2010 Comprehensive Plan
and the Tier Overlay system.''
Dear Chairman Mapes and Fellow Commissioners:
A. Introsinetion:
This is huge! Huge in the sense of importance and huge in the sense of the
number of hours and hard work put into these proposed amendments. This is great!
I am in full support of Agenda Item * 2 and #3, have basic concerns regarding
the proposed changes in the Permit Allocation System (PAS) and permitting process
and have one question regarding the language in the Transfer ROGO Equivalent
(TRE) section. The purpose of this letter is to explain the basis of my concerns and to
suggest possible changes vvrith the hope of minimizing unintended consequences and
avoiding potential delays.
Dec 13 04 05:16p p.5
Below is a summary of the background of these proposed amendments taken
directly from the "Revised Report to the Board of County Commissioners:
Implementing Goal 105 and the Recommendations of the Florida Keys Carrying
Capacity Study THE TIER SYSTEM"; a copy of which was included in your packets.
B. B-a-ckgr-ound:
• 1991: ROGO is initiated by BOCC during 5-year comp plan amendments.'
• 1992: Year 2010 Comprehensive Plan is adopted by BOCC. Habitat
Evaluation Index is revised. The 1986 Habitat Maps are updated.
• 1995: Challenges to the 2010 Plan result in Administrative Hearing
Officer Sartin's Final Order which required the County to address
the comprehensive plan's noncompliance with Florida statues.
•1996: Florida Administrative Commission (FAC) Rule 28=20.100 is
enacted creating the Work Program which outlined deadlines
and specific remedial action to address the noncompliance issue.
Included in the Work Plan is a requirement to analyze and
determine... " the ability of the Florida Keys ecosystem and the
various segments thereof, to withstand all impacts of additional
land development activities."' Hence, the origin of the FKCCS.
•1998: The PAS and permitting process is amended to strengthen habitat
protection as required. Revisions are made to the HEI. However,
the 1992 Habitat Maps are not updated.
• 1999: ACOE begins the FKCCS public hearings.
•2001: Goal 105 Smart Growth is adopted by BOCC to provide a frame-
work within the 2010 Comprehensive Plan to implement the
FKCCS and a 20 year Land Acquisition Program.
' `The original ROGO grew from a general dissatisfaction with the county's original Comprehensive
Land Use Plan." Florida requires each county to review their comprehensive plans every five years.
A revision to the 1986 comp plan was finished by January i99i; but, the BOCC acknowledged that the
new plan was still not addressing the the critical fact that "two thirds [of the land in the Florida Keys]
had been developed -.[and] those remaining acres were disappearing quickly." On February 4, i991 a
"Preliminary Policy Direction" was adopted by the BOCC which outlined growth management goals
from population increases, to carrying capacity, to affordable housing.
The original ROGO was enacted on July 13, 1992, along with an updated Habitat Evaluation
Index and updated 1986 Habitat Maps . The intent of the ordinance was not to stop growth but rather
to limit and direct new residential development "into existing subdivisions, and to give those
wishing to build a home in the Keys incentive make those homes energy -efficient, wind and flood -
resistant and environmentally friendly." The ordinance was carefully crafted, reviewed by several
legal experts and involved extensive public hearings . As a result of this, the ROGO has received
awards; and, to date has withstood all of the numerous legal challenges. [This footnote includes direct
quotes and extensive paraphrasing from "Demystifying the Rate of Growth Ordinance," 6 pages,
Florida Keys Keynoter, April 3, 1997.1
Revised Report to the BOCC, "implementing Goal 105 and the Recommendations of the Florida Keys
Carrying Capacity Study THE TIER SYSTEM, August 2004, page 4.
218
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Dec 13 04 05:16p
P. G
•2002: Year Six of the Work Program (July 13, 2002 - July 13, 2003) is
amended to require a master land acquisition plan containing a
"strategy for funding and acquisition of properties for
environmental protection and affordable housing ... [and] ... the
adoption of LDR and/or comprehensive plan amendments that
strengthen the protection of terrestrial habitat through the Permit
Allocation System (PAS) and permitting process,..."'
•2002: FKCCS Final Report concludes "the Florida Keys has surpassed the
capacity of the upland habitat to withstand further development.
Any further development would exacerbate secondary and
indirect impacts."' The recommended guidelines for all future
development includes "Prevent encroachment into native habitat
...increased efforts to manage the resource to preserve and improve
the remaining terrestrial ecosystems."
•2003: The Year Seven annual review of the Work Program results in the
FAC preliminary determination that substantial progress has not
been made; and, existing protection regulations are inadequate to
protect significant upland habitat. Section F. "...mandates
adoption of Land Development Regulations (LDR) and
Comprehensive Plan amendments to strengthen the protection of
terrestrial habitat.s' [Emphasis added.]
Goal 305 Smart Growth includes an array of smart growth initiatives such as:
development of an economic framework, establishment of design criteria for new
development and redevelopment, creation of incentives for redevelopment, and
establishment of mechanisms to reduce sprawl, maintain and enhance the existing
community character. Goal 105 Smart Growth Polic.,1 105.1.5 states that the PAS
and permitting process "shall direct the preponderance of future residential develop-
ment to areas designated as an overlay on the zoning map(s) as Infill (Tier III)..."
C. Concerns -About -Proposed Revisions to..the_PAS-and Perm.itting.Pr-o.cess:
The Tier Overlay system has value in protecting habitat through its capacity
to serve as an advance identification of those areas of the most critical habitat in
order to provide guidance for land acquisition priorities. However, it is important to
remember that the tier maps are a broad brush planning tool. Sole reliance on tier
designations to determine the level of habitat protection significantly weakens the
protection afforded in the current 1998 ROGO.
Why? Because not all parcels/lots within each tier designation are equal. Each
tier contains a mosaic of many different kinds of habitat. All three tiers contain lots/
parcels of high quality hammock and all three tiers contain scarified lots/parcels. In
'Revised Report to the BOCC, "Implementing Goal io5 and the Recommendations of the Florida Keys
Carrying Capacity Study THE TIER SYSTEM, August 2004, page 4.
page 5.
'Ibid.
Ordinance Number 018-2004 (adopting the CNA boundaries a -.-id an Interim Moratorium), page i.
Dec 13 04 05:17p
p.7
order to accurately evaluate the existing terrestrial habitat a modifying mechanism
needs to be added to compensate for the broad brush tier maps.
The lack of a modifying mechanism results in a PAS which ignores habitat
quality and importance to endangered, threatened and species of special concern
within each tier designation. This flaw results in a PAS which fails to meet the level
of habitat protection required by (FAC) Rule 28-2o.1oo, the findings of the FKCCS
and the standards set forth in Policy 105.1.5, Goal lo5 Smart Growth.
By combining the tier system along with negative point assignments for some
of the current 1998 ROGO environmental criteria, this problem could be fixed. The
PAS in the Master Plan for Big Pine Key and No Name Key, as proposed in these
amendments, is precisely what I am suggesting. And the recommendations made to
the BOCC by the Director of Growth Management, "Preserving Monroe County's
Terrestrial Habitat", July lo, 2003, also combines the tier system and the
assignment of negative points for terrestrial habitat (hardwood hammocks and rock
pinelands in Tier II. [See attached.]
As proposed, tier designation is also the sole determinant of open space ratio. A
lot/parcel in a Tier lI subdivision of high quality hardwood hammock would
automatically require a 6o% open space ratio. However, because the tier designation
was influenced by recent development, the newly required open space ratio is 2o%
less than the 8o% open space ratio required now. This inconsistency inside a given
subdivision seems unfair, diminishes community character, offers less habitat
protection and fosters resentment against `the government.'
D. S_uggeste.d-Changes_to-the-Prop_osed_Y-S_&P_ermitting-Pr-o-cess-:
The current ROGO PAS criteria listed below with staff recommendations.
Attachment "A", March 9, 2005 [sic], "GOAL 105 TIER SYSTEM, draft working copy
only, August 27, 2004" is --are the basis of this list and was included in your packets.
The few changes I believe to be important are highlighted by red capitals letters.
1.) Platte d_S.ubd-v!siom_l.nfill: follow staff recommendation to KEEP.
2.) Infrastructure-A-vailability_: follow staff recommendation to KEEP. However,
the phrase "Included in Tier III" is confusing. Does it mean the Tier designations
fully address infrastructure availability? How will a Tier II parcel/lot without
an existing County maintained paved road, potable water or electricity on the
applicant's street be scored in the proposed PAS?
3.) Lot-Aggre-gation: follow staff recommendation to KEEP.
4.) Acreage.Tract.Density Reduction: follow staff recommendation to DELETE.
5.) Land -Dedication: CONSIDER AMENDING to include minor positive points
for all lots/parcels buildable or not. There are pros and cons to this idea, but a
significant benefit would be that every lot/parcel would have a beneficial use.
4068
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Dec 13 04 05:18p
p.8
Perhaps award +2 for 5,000 square feet Tier I lot/parcel (versus the proposed
+1); and, award +1/2 or +1 point for all vacant lots/ parcels (buildable or not)
regardless of tier designation.
6.) Aff9tdable-Housing: follow staff recommendation for a separate PAS.
7.) Habitat. -Protection: AMEND. As proposed, the current HEI will be replaced
with a "vegetation survey" which means a biological field survey will still be
needed for each applicant. Negative points should be assigned for Tier II and III
lots/parcels with terrestrial habitat (hammocks or rock pinelands).
8.) Thre_atened-os Endange_LesLSgecies.: AMEND. Currently the 1998 ROGO PAS
awards cumulative negative points for the following:
a.) within known habitat of a documented threatene_d/_endangered.spe_cies.
b.) within too feet of any known nesting area for marine turtles.
c.) within 500 feet of any known nesting or resting area of the piping -plover.
d.) within probable or potential habitat of a threatP� ned endange ed-gRecies.
e.) within the habitat of a wide-ranging thLeslteased/_endange.Ledspecies...or.
State-species_of-sp_ecial.concern. ['threatened or endangered species' =
both federally listed and state listed threatened or endangered species.]
The current ROGO negative cumulative point assignment should remain in
effect for all five of sub categories of this criteria. How would we possibly justify
sole reliance on the tier designations when threatened or endangered species
I
abitat exists in Tier II and Tier III.
Perhaps the proposed "vegetation surveys", which will require field visits,
should be renamed "biological assessments" and require surveys of both plants
and. animals. This would not require an additional field survey. To help
identify potential wildlife on a lot/parcel, the recently updated and
simplified Protected Animal Species Maps (GIS), FKCCS habitat maps, and State
Species of Special Concern maps should be administratively adopted
immediately by the County as promised.
Even if a rare species is not seen during the field visit, its documented habitat
should receive the additional protection of the appropriate number of negative
points using the maps.
adopt the standard for habitat contiguity, as defined in Ord. No. 018-2004,
which states only Highway US-i shall be deemed to interrupt the contiguity of
terrestrial habitat; and apply this standard in the biological assessment.
io.) Presert-ation Paints: follow staff report and KEEP.
11.) Coastal High Hazard Areas.: followw staff recommendation.
5�8
10/3.10-.
Dec 13 04 05:18p
p.9
12.) Coastal Barrier Resources._System: AMEND. Not all CBRS units are in Tier 1.
The FIRM maps to document CBRS units will be used in scoring criteria #1i.
13.) Offshore_lslands_and_Corset,,patio-nLand_PiofectiomAr-eas.: follow staff
recommendation to DELETE.
14.) Transfer of Development Rights: follow staff recommendation to MOVE.
15.) HistoriC_Resources: follow staff recomendation.
16.) Water Conservation: follow staff recommendation to MOVE.
17.) Enemy Consexvation: follow staff recommendation to MOVE.
18.) Structural Integrity: follow staff recommendation to MOVE.
New.) Market.-Rate-ao_using..in. Employee or Affordable Housing Project: follow staff
recommendations.
New.) Central Wastewate.r_S_ystein-A_vailabilify: follow staff recommendation.
(Not listed in Appendix "A"; but included in the proposed amendments.)
New.) Tier Designation: AMEND. Increase the spread. The proposed tier point
assignment: Tier III = +25 --- Tier II = +2o --- Tier I = +o. The five point spread
between Tier II and Tier III is not sufficient to rneet the standards of Goal 105
Smart Growth Policy 105.1.5 to direct the pzelzondesanc-e of future residential
development to areas designated Tier III. And, the proposed spread is obviously
skewed to the disadvantage of Tier II. The PAS in the Master Plan for Big Pine
and No Name Key, as proposed in these amendments, assigns Tier III twice the
number of positive points assigned in Tier II. Following this pattern, the tier
designation point assignment should be changed to: Tier III = +30 --- Tier II =
+15 ---Tier III = +o.
New.) Open -Space Ratio: AMEND. Maintain consistency within a given subdivision.
New.) Affordable -House- follow staff recommendation.
New.) N.RQG_O_-PAS_and_P_ermitting Process: AMEND. All of my suggested changed to
the ROGO PAS and permitting process should also be included in the PAS and
permitting process of the NROGO wherever possible.
News.) Lottery -fordo% ofRQG_O_Allocations: I do not believe a lottery will succeed in
the goal of increasing the chances of the "less than super wealthy"' applicant
in the ROGO allocation process. It has been my ,sense the majority of allocations
fall into two categories: the super wealthy or the speculative builder, many of
whom have several lots/parcels in the current ROGO queue. I would not be
fi11-8
1 0131 ° `�
Dec 13 04 05:19p
p.10
surprised to see all manner of creative "cheating" in a lottery, as occurred with
the Modest Housing snafu.
Perhaps a reduction in impact and permitting fees would be more appropriate.
Or, would the same level of "creative cheating' commence? It was my under-
standing one of the Director of Planning's goals was to simplify the PAS and
permitting process. Clearly the 30% Lottery will make the PAS more
complicated. I feel strongly that solutions to this "unfairness" issue should be
explored outside the scope of the PAS and permitting process.
If, however, the Lottery is recommended by the Planning Commission, please
adopt clear language limiting entrance to only those applications in Tier III.
E. Question .on TRE_S-ection:
Allowing a campground_sp_a_cn. to be eligible as a THE is ludicrous. Now is,the
perfect time for staff to address, as promised, the reason we are loosing affordable
housing to luxury condominiums: a unit is a unit is a unit ---regardless of intensity of
use. How can a campground -apace be a lawfully established dwelling unit?
F. Conclusions:
Thank you for taking the time to read this lengthy, dry letter; especially
considering that the public input process before the Planning Commission is nearly
complete. I am sincerely sorry I was not in the Keys to participate in this process from
the beginning. I ask that you carefully consider the lolig term effects the proposed
PAS and permitting process will have on the protection of terrestrial habitat and the
economy. The changes I believe to be important to avoid unnecessary confusion,
potential delays and unintended consequences are:
• Increase the Range of Positive Points for Tier Designations.
• Award Current Negative Cumulative Points for Threatened or Endangered &
Species of Special Concern. (Administratively adopt the recently updated
Protected Animal Species Maps (GIS); the FKCCS habitat maps; and, State
Species of Special Concern maps, as promised.
• Award Negative Points for Hammocks & Rock Pinelands in Tier II & Tier III.
• Adopt the Standard for Habitat Contiguity as stated in Ord. No. o18-2004:
oniti- US-i is deemed to interrupt the contiguity of terrestrial habitat.
• Maintain the Same Open Space Ratio as the Surrounding Properties, when the
currently proposed OSR is less than the historic OSR for a given subdivision.
• Award Current Negative points in Coastal Barrier Resources System units.
• Consider Awarding Positive Points for Dedication of all lots/parcels.
Sincerely,
l,�
Alicia Putney
872-8888 - Phone
872--8820 - Fax
7 B
1 )73 0 �i-
Dec 13 04 05:19p
0
141
March 9, 2005 "A"
Changes to the points in the ROGO allocation system
The Tier system simplifies the ROGO allocation system, while. maintaining the protection.
of the environment and directing new development to appropriate infill areas.
Existing
Action
Tier System
I)Planed Subdivision In$ll
Keep
Included in Tier.III
2) Infrastructure Availability
Keep
Included 'it Tie'r-Ell
3) Lot. Aggregation
Keep
+ 4 points in Tier II and Tier M. .
4) Acreage Tract Density
Delete
Acreage tracts.in Tier ; should not receive
Reduction
additional points
5) Land dedication
Keep
+4 Points legally platted buildable lot in
-'
Tier I and II, 5000 sf Tier I lot res. low -+1
point max net and + 112 point no max net.
+3 points acre of buildable land.
6) Affordable Housing
Delete
Affordable housing ha-. a separate
allocation.
7) Habitat Protection
Delete
Included in Tier I - High/moderate quality
hammock, Tier II - Low quality hammock
8) Threatened,;
Endangered Spet:fes
Delete
Included in Tier I
° Turtle nesting area
protected
° Sec.. 9.5-349(p) - Tuns nesting area
9) Critical Habitat Areas
Delete
Included in Tier I
10) Perseverance Points
Keep
Points awarded yearly
11) Coastal High Hazard
Change
-4 points "W' zone on FEMA maps in all
Area
Tier.
12) Coastal Barrier
Delete
Included in Primarily Tier I
Resources System
13) Off shore Islands and
Delete
Included in Tier I by definition"
Conservation Land
Protection Areas
14) Transferable
Delete
TDR's need rewriting mainly in Tier I and
development rights (TDR)
Tier II
15) Historic Resources
Delete
Sec. 9.5-451-460 only refers to designated.
PC -- Add to development review check list.
16) Water Conservation
Delete
Required in Building C-ode
17) Energy Conservation
Delete
Required in Building erode
18) Structural integrity of
Delete
Required in Building Code - 150mph
construction
Add
+3 points market rate housing in affordable
80.� �1 C IUl Cl610`j-
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Dec 13 04 05:20p
p.12
Mr. Lynn Mapes
Planning Commission Chair
Monroe County
Suite 410
2798 Overseas Highway
Marathon, FL. 33050
October 30, 2004
Re: Monto_e_C9.unty Pla ing Commission.Agend.a_l.tem--N.ovember 3, 2004,
Marathon, .Flo>`ida}
Agenda itemc 2 hrnugh.5 as.folloxs-
"2.) TextAmendment: Section 9.5-511 and Florida Statues 125 & 163: THE PLANNING
DEPARTMENT is proposing an amendment to the Monroe County Land Development
Regulations renumbering existing 9.5-256 to 9.5-271 and adding a new Section 9.5-256 Tier
Overlay District, providing criteria for designation of Tier boundaries and providing a
mechanism for Tier Overlay Map anicndments.
3.) Land Use DistziclMap-Aniendment: Section 9.5-511 and Florida Statues 125 & 163: The
Planning Department is proposing to amend the Land Use District Maps to include the Tier
Overlay District on all lands in unincorporated Monroe County in the Florida Keys between
Key West and Ocean Reef. Boundaries for Tier 1, Tier 11 and Tier III are designated as required
in Goal 105 of the 2010 Comprehensive Plan following the: criteria in Section 9.5-256.
4.) Text Amendment: Section 9.5-51 1 and Florida Statues 125 & 163: THE PLANNING
DEPARTMENT is proposing the following amendments to the MONROE COUNTY YEAR
2010 COMPREHENSIVE PLAN to implement Goal 105 of the 2010 Comprehensive Plan and
the Tier Overlay system.
5.) Text.Amendment: Section 9.5-511 and Florida Statues 125 & 163: THE PLANNING
DEPARTMENT is proposing the following amendments to the MONROE COUNTY LAND
DEVELOPMENT REGULATIONS to implement Goal 105 of the 2010 Comprehensive Plan
and the Tier Overlay system."
Dear Chairman Mapes and Fellow Commissioners:
I. Introduction:
Since my 10/03/04 letter regarding the above proposed amendments, I have
given this issue a lot of thought and researched the matter more thoroughly. I have
asked myself: How did we get here? What do we know,' Why are the doing these
amendments? Are these amendment accomplishing what they were intended to do?
Why are the previous recommendations of the planning commission and. public in put
being ignored? Why does it seem there are mixed messages regarding the Tier
Overlay System? Are the defects identifiable? Are they fixable? What could we
change to help make these proposed amendments fulfill their intent?
Goal 105 Smart Growth Nvas adopted in 2001 "to provide a framework within
the 2010 Comprehensive Plan to implement the FKCCS and a 20 year Land
.119 -
10/ 3a% -1
Dec 13 04 05:20p p.13
Acquisition Program." Only one part of Goal 105 Smart Growth is related to the
required comprehensive amendments to the PAS and permitting process. And, that
one section in Goal 105 Smart Growth is crystal clear: direct the preponderance of
future residential development to areas designated as an overlay on the zoning
map(s) as In Fill (Tier III)".
As conceived I totally supported the Tier Overlay System. It could be a useful
planning tool in providing guidance -for land. acquisition priorities, which is also a
requirement of Rule 28-20. These amendments, as proposed, do a pretty good job of
outlining the 20 Year Land Acquisition Program. However, they basically ignore the
smart growth initiatives. And, they totally fail to meet the requirement to increase
the
existing level of terrestrial habitat protection.
In short, the PAS and permitting process as proposed fails to increase the protection of
habitat; rather it actually weakens the protection of the current 1998' ROGO. These
amendments actually fail to protect even Tier 1.
II. Can .We_Tix-This.2:
I believe we can. The proposed PAS and permitting process needs to be amended
to assign negative points for Federally and State Threatened and Endangered Species
and State Species of Special Concern. The proposed amendments should be amended
so that getting an allocation in Tier III is easy compared to Tier II or Tier I. They
should be amended to increase lot dedication while still directing development away
from sensitive habitat. They need to be amended to factor in the existing conditions
on the ground in terms of habitat. And, we should be taking this opportunity to
close some of the loop holes which are allowing the conversion of affordable housing
into high end condos and short term rentals. We are invisibly increasing the
intensity of development in the Keys and these amendments were supposed to address
these issues via the smart growth initiative.
As you read over the following suggested changes please keep the following in mind.
• We are mandated to increase the existing level of terrestrial habitat
protection. The focus of the amendments is to fulfill the intent of the 1998
ROGO while adding mechanisms to direct the preponderance of future
development to areas designated as an overlay on the zoning map(s) as In Fill
(Tier III)".
• There are 3,485 privately owned vacant residential lots in Tier III (1,044
acres). These 3,485 buildable lots would fulfill the annual quota of 197 ROGO
permits for 17.7 years.
• There are approximately 15o acres of privately owned vacant residential
upland habitat (hardwood hammock and rock pinelands) in parcels between
one acre and four acres in size that are not in Tier 1.
• Federal and State threatened and endangered animal and plant species and
oI3 /04
Dec 13 04 05:21p
p.14
State species of Special Concern in upland habitat exists not only in Tier I, but
also in Tier II and Tier III. Adding these three categories together, the Florida
Keys are home to 145 federal and state protected terrestrial species. I will bring
a colored map to the meeting to show habitat in all three tiers.
- The proposed amendments already require a site visit for ROGO application.
An environmental assessment can be done at the same time as the proposed
vegetation survey without requiring a second trip to the site.
The proposed amendments repeatedly mention the use of both negative and
positive point assignments.
• A secondary goal of these amendments from staff's perspective is to simplify
the permitting process.
-There have been 97 changes to Tier designations between 1/1/03 and
10/22/04. See "Staff Tier Review as of October 2:2, 2004" under I;ot Topics,
Monroe County website. Maps are never perfect. Final determination must be
based on field visits.
III. S-uggQsed Changes_andAdditions_to the..Pro.r-o-,,ed Amexdm .n s.:.
A.) Point_Assignment_System,(ROGO).: (See Section 1, pages 7-16.)
0 Platted_S_ub ivision Infill: follow staff recommendation.
2.) Infrastructure Availability: Try to get an answer to my question in
10/03/04 regarding the wording.
3.) Acreage Tr.act.DensitylRe.duction: follow staff recommendation.
4 .) L0-t Aggzegation:.
•Change_Cle.aring AllowedonAggr-egated Lots: Suggested wording:
"The following points shall be assigned to allocation applications to
encourage the voluntary reduction of density through aggregation of
legally buidable lots within Tier I1 and Tier. III provided the parcel
proposed for development is the only parcel allowed to be cleared as per
Policy 205.2.6. Point assignment would remain as proposed in these
amendments. (Perhaps some sort of deed restriction on future
clearing of the aggregated parcel.)
5.) Land -Dedication:
-Change so Poiiits--can only_.b.e .applied tot)-eeionmentin-Tier III:
Suggested wording: The following points :hall be assigned to encourage
the voluntar}, dedication of vacant, buidable lands within areas
designated Tier 1, Tier II or Tier II and certain legally platted lots or
unplatted parcels in Tier I, Tier II or Tier III that are of insufficient size to
be buildable, for conservation, resource protection, restoration or density
-5� �
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Dec 13 04 05:21p
p.15
reduction, and, if such parcels are located in Tier II, for the purpose of
providing lands for affordable housing. However such positive points
shall only be awarded to permit applications for the development of
parcels within Tier III.
•_Change.sirLPoint_Assignment. Voluntary dedication of parcels in:
• Tier I= + 10
-Tier Il=+ 5
•Tier III=+i
• The remaining three categories of point assignments would
remain as proposed in these amendments.
6.) Affordable._I3o"- follow staff recommendation.
7.) Hahitat Proteeti- n: AMEND.
• Either: 0 Amend the current HEI to be easier to implement with
consistency as suggested by the DCA and USFWS. And, base the
biological assessment on the 1992 "MeNeese memo" that
implements the maps to provide clear guidance to staff biologists
and planners, environmental consultants, and the public when
applying the maps. The point assignment would be the same as the
current 1998 ROGO.
2.) Rename the proposed "vegetation survey" a "biological
assessment" and when appropriate assign negative points for Tier
II and Tier III parcels/lots with terrestrial habitat (hammock and
rock pinelands). The point assignment would be the same as the
current 1998 ROGO.
8.) Threatened and -Endangered. Species_�0utsid_eof Big Pine -and No Name. -Key:
AMEND.
• Either: i.) Keep the current 1998 ROGO cumulative point allocations
for Threatened and Endangered Animal Species; but, add the
negative 2 points for State Species of Special Concern as required.'
2.) Adopt the USFWS recommendations to a drastically simplify
negative point assignments for animal species by eliminating the
wide ranging category, and reducing the number species to focal
species."
'This was recommended by the planning commission at the May 21, 2033 ROGO Workshop.
' in any case, the USFWS Habitat Maps for State and Federally -listed Species in Monroe County should be
administratively adopted immediately. Use habitat maps as a guide for development review but rely on existing
field conditions for all final determinations.
' These recommendations were presented with the Habitat Maps for State and Federally -listed Species in
Monroe County at the FKCCS Working Group.
1DJ3o/° �
Dec 13 04 05:21p
p. 16
9.) Critical HaUtat_Are_as.: follow staff recommendation.
10.) Pres-envation.Points: follow staff recommendation.
11.) C_o.as_tal .High .Hazar_d_Area: follow staff recommendation.
12.) Coastal Barrier Resnurces System:_ follow staff recommendation.
13.) Off shore- .Islands_andConservation-Prolaction_Areas: follow staff
recommendation.
14.) Tiansfexable-DevelopmemtR!gh_ts_: follow staff recommendation.
15.) Historic-Res_aur_ces: follow staff recommendation.
16.) Water_Consers_ation: follow staff recommendation.
17:) Ener_gy__C_o.nserhation: follow staff recommendation.
18:) Structural Integrity: follow staff recommendation.
B. New_.Criteriain_th-eBOGO PAS_Pr_opt�in._these Amendments.:.
1.) Central_-Wastei:NTate.r-Sy-tem .Availability.: AMEND.
-Positive four points for proposed development in those areas currently_
connected to a central waste water system that meets the waste water
treatment standards of Florida Legislature and Policy go1.1.1.
2.) Tier -Designation -Points: AMEND.
-Change SpreasLofTie-r-Points.0utsUeBig-Pine/No Name.(ILCP-): 4
• Tier I to + o
• Tier II to +20
• Tier III to +40
Note: The tier points for Big Pine Key and No Name Key - HCP and the
cumulative negative ten points for development on No Name Key, within the
Lower Keys Marsh Rabbit habitat and buffers, and within the Key Deer
Corridor would remain as proposed in these amendments.
3.) Open.S.pace Ratio: I think I failed to clearly express my concerns regarding
OSR in my letter of 10/03/04. I will try again. Scenario: there is a subdivision,
lets call it Subdivision A. Under the current regulations the open space ratio in
Subdivision A was 80%. Now, because Subdivision A is in Tier II, the OSR is
6o%. One can look at this two ways. One, so what, regulations change all the
time. Or two, in terms of protecting the character/landscape of Subdivision A,
4 Important that the ratio of Tier III to Tier 11 be 50% because the reason there is less existing development in Tier 11
is precisely because of historic and existing environmental protection of Tier 11 lands.
-6:- 5 -
/0/30/0 4/-
Dec 13 04 05:22p p.17
the newr regulations should require the lower historical open space ratio. It's a
judgment call and up to the Board. I was merely trying to expose the issue.
C CriteriaAn the1NROGO PAS. Proposed in. these.Amendments:
-Follow staff recommendations except for PAS criteria amendments I have
proposed. But, consider my suggested re -visions to the proposed amendments.
Specifically: 1.)only allow "Land Dedication" points for development in Tier III;
2.) change point assignments in three of the six categories for "Land
Dedication; 3.) Amend the "Habitat Protection" criteria; 4.) Amend the
"Threatened and Endangers Species" criteria; and 5.) increase the spread of tier
designation points.
D. The _Lottery: DELETE.
-Vam perplexed by the fact that the lottery is being considered given the
following:
i.) The Planning Commission recommended against it at the May 21,
2003 Workshop.' Many members of the public attended this workshop
and there was little or no support for the lottery. For some it was because
it made the permitting process even more complicated. For others it was
because it Iimits the amount of land dedication which in terms of public
versus private good (considering the intent of the ROGO) was not
something to be encouraged. For some, it ran counter to the overall
objectives, goals and policies of the Year 2010 Comprehensive Plan. Staff
pointed out "Large builders with multiply applications would have more
chances of receiving an allocations' Howe can this be helping the "little
guy" .
2.) Since the May 21, 2003 Workshop f have seen almost no support for
the lottery.
3.) From the fiasco with Workforce Housing I learned there many very
creative folks in Monroe County who will work out ways to defeat the
intent of the lottery. This I would count on.
4.) Alternatives exist without some of the unintended consequences of
incorporating a lottery into the revised Pcint Allocation System.
III. Other.. Suggeste- LChanrges/A�dditionsAo-the-Pj--o.go-sr-&Aniendments:.
A. Suggested Changes:
1.) TDRs: While TDRs have been removed from the PAS and Policy 101.13.5
gives the county a year to map potential TDR sender and receiver sites, Policy
101.13.4 designates sender sites for TDRs. AMEND to-include...a_polieythat_
alLLeoei-Ve sites mus_Lbe within Tier iIL
2.) Public. Facilities -and -Nat- Foy Pr i Or anizations: AMEND Policy 101.12.4
(expansion or construction of public facilities) and Section 9.5-124.3(a)(4)
s Also, nearly every one in attendance were supportive of making the ROGO more simple; but nearly every single
person said please don't get rid of ROGO. We understand it. It works.
Memo dated 05/21 /03, Conaway, "Tier System and Re ulatory Chances".
_ `?-
1 o/30)0�
Dec 13 04 05:22p
p.1a
(construction of non -for -profit organizations) to be consistent with the ROGO,
NROGO and affordable housing standards. Specifically, development or
expansion of Public Ea-c iP.._.and.NQt-For Profit Organizations shall not be
allowed in Tier 1, within a V- zone or within a Tier I1 designation area that
results in the clearing of upland native vegetation of more than five -thousand
square feet or the open space requirement of Section 9.5-347, whichever is less.
3.) Vegetation Surveys: Amend the proposed "vegetation surveys", which
will require field visits. They should be renamed "biological assessments" and
require surveys of both plants and animals. Maps are never perfect. Habitat
maps should be used as a guide for development review but all final
determinations need to rely on existing field conditions for all final
determinations. The language in the proposed Sec. 9.5-347 (c) could easily be
adapted to make this amendment possible.
B. Suggested Additions:
1.) The proposed amendments which continue to allow a campground space to
be converted to a high end short term rental unit is ludicrous. Since 1999,
and possibly prior to that time, Growth Management has promised to deal with
this invisible increase in development intensity. Now is the perfect time for
staff to address this issue by changing the LDRs to redefine a laAvfully
established dwelling unit which considers the intensity of use. The HCP for Big
Pine Key has a similar mechanism. For commercial it is primarily based on
square feet. For residential one way would be to determine existing density by
the number of existing bathrooms. That way a 2 bedroom/1 bathroom trailer
could not become a 3 bathroom/ four bedroom condo. As written a unit is a
unit is a unit ---regardless of intensity of use ---and, this needs to be changed.
2.) Adopt the recently updated and simplified USFWS Habitat Maps for State
and Federally -listed Species in Monroe County (GIS), the FKCCS habitat maps,
and State Species of Special Concern maps immediately.
IV. Conclusions:
Thank you for taking the time to read this lengthy, dry letter. I am completely
out of time and as such will summarize my request at the meeting. As you know, I
believe the changes I have proposed for your consideration to be important to avoid
unnecessary confusion, potential delays and unintended consequences.
Sincerely,
Alicia Putney
872-8888 - Phone
872-8820 - Fax
Dec 13 04 05:23p
p.19
Dec 13 04 05:24p
p.20
Attachment. H - Upper Keys Tier Maps
implementing Goal 105 and the Carrying Capacity Study �=� _ %d -39-
Monroe County. Florida
Implementing GOAL 105
Plan and LDR Amendments
Board of County Commissioners
December 15,200
Implementing GOAL 105
Briefing Contents
. Overview of Goal 105
■ Chronology of Comprehensive Plan and LDR
amendment process and next steps in process
a Summary of major amendments
■ Further issues for consideration
■ Questions?
Implementing GOAL 105
Overview of Goal 105
■ Provides framework for future development and land
acquisition for the next 20 years that:
. Reduces sprawl;
. Encourages infill; and
. Promotes sustainability.
■ Implements Rule 28-20 and recommendations of
FKCC Study
1
Implementing GOAL 105
Comprehensive Plan and LDR Amendments
Process Chronology
■ Preparation of initial draft amendments (Dec 03)
■ Input thru 3 focus groups, 2 Planning Commission
and 2 public workshops (Jun 04-Oct 04)
■ 4 Public Planning Commission public hearings (Oct
04-Nov 04)
■ Planning Commission action (Nov 3, 04)
■ Preparation of 7 draft ordinances with minor
revisions by staff (Dec 04)
Implementing GOAL 105
Comprehensive Plan and LDR Amendments -
Next Steys
■ Hold 3 public hearings on draft ordinances (Dec 04
and Jan & Feb 05, contingent upon BOCC approval)
. Receive legal evaluation of draft ordinances and
make any recommended revisions as needed (Jan or
Feb 05).
■ Transmit Comprehensive Plan amendments to DCA
(Mar 05)
Implementing GOAL 105
Comprehensive Plan and LDR Amendments -
Next Stevs
■ Incorporate changes into draft Tier Overlay District
Map (Feb 05 thru Mar 05):
. Tier I - IDO Special Master process (Jan 31, 2005)
. Tier II/III- Property owner requests (Mar 1, 2005)
■ Adopt 7 ordinances with Tier Overlay District Map
(late spring or early summer 05)
2
Implementing GOAL 105
Amendments to Comprehensive Plan and LDRS
• Environmental Amendments and
Requirements for Land Acquisition Plan
■ ROGO Amendments
■ NROGO Amendments
■ Tier Overlay District
■ Tier Overlay District Map
Implementing GOAL 105
Environmental Regulatory Amendments
■ Deletes the requirements for HEI.
. Requires existing conditions report with vegetation
survey for land with upland native habitat.
■ Reduces permitted clearing of habitat - Tier I = 10%,
Tier II = 401/o, Tier III = 60%, Ocean Reef = 40%
. Limits clearing of upland habitat for ROGO
applications receiving points for aggregation (Tier II
and III only) to no greater than 5,000 s.f.
■ Legal Conditions — 1985 Habitat Maps.
Implementing GOAL 105
Environmental Policy Amendments
■ Incorporate provisions for Land Acquisition Master
Plan that will address acquisition of environmental and
affordable housing lands, priorities for acquisition,
identification of funding sources, and land
management practices and funding.
■ Designate all offshore islands as Tier I.
■ Incorporate specific policies for GIS Tier Mapping -
Data Management
3
Implementing GOAL 105
ROGO and NROGO Amendments
■ Market rate awards remain competitive; affordable
now on a first come first serve or reservation basis
■ Allocation system simplified — ROGO has 8 criteria
rather than current 18 criteria with less emphasis on
non -land dedication
■ Tier based system utilizing positive points
■ Environmental protection incorporated in Tiers and
new clearing requirements.
■ More incentives for development in infill areas and
less incentives in environmentally sensitive areas.
Implementing GOAL 105
Evaluation Criteria ROGO
. Tier Designation - Tier III = +30 points. Tier II = +20
Points, Tier I = 0 Points,
■ Lot Aggregation = + 4, Tier II and Tier III.
■ Land Dedication = +4 Points for platted buildable
lots.
[Reduced points for non -buildable platted lots.]
■ Market Rate within affordable development = +3.
. Central Wastewater System = +4
■ Flood Hazard "V" Zone = - 4 Points.
Implementing GOAL 105
Big Pine Key and No Name Key — HCP, LCP
■ Tier I = 0, Tier II = +10, Tier III = +20.
. No Name Key = - 10.
■ Marsh rabbit habitat or buffer = -10.
■ Key Deer Corridor = -10.
4
Implementing GOAL 105
Assignment of Affordable Housing
■ Not in Tier I or "V" flood hazard zone.
. Public financing or BOCC reservation of units - 99
year covenant; 30 year covenant remains with private
funding.
■ Eliminates size limits on affordable housing.
■ Expands eligibility exclusion of floor space in
intensity/density calculations for commercial
development with employee housing.
Implementing GOAL 105
Evaluation Criteria NROGO
■ Tier Designation - Tier III = +20 points. Tier II = +10
Points, Tier I = 0 Points
. Intensity Reduction = + 4 Points
■ Land Dedication = +4 Points for Platted Buildable.
[Reduced Points for Non -Buildable Lots]
■ Employee Housing = +2 Per Unit.
. Central Wastewater System = +4
■ Native Landscaping = Positive; Depending on %
Implementing GOAL 105
Tier Overlay District LDR Amendment
■ Criteria for designating Tier I, II and III
■ GIS Mapping requirements using aerial
photography, species maps, property information,
FMRI habitat maps, field work
■ Map amendments must follow LDR rezoning
requirements, or
■ For Tier I, competent evidence may be provided
once per year through Special Master process by
any individual
5
Implementing GOAL 105
Tier Overlay _ W
District May t
Amendment
DRAFt
Implementing GOAL 105
Further Issues for BOCC Consideration
■ Limits on number of administrative relief awards in
one quarter.
■ Purchase of ROGO points
Land Acquisition Fund — Maximum 3 Points
■ Hybrid system (for information)
20% of Market, Lottery, +30 Point Threshold
Implementing GOAL 105
QUESTIONS?
0
Growth Management Division
2798 Overseas Highway
Suite 410
Marathon, Florida 33050
Voice: 305.289. 2500
FAX: 305.289. 2536
bounty of Conroe
MEMORANDUM
TO: Board of County Commissioners
FROM: Timothy J. McGarry, AIC
Growth Management Di c
DATE: December 10, 2004
Board of County Commissioners
Mayor Dixie Spehar, District I
Mayor Pro Tem Charles "Sonny" McCoy, District 3
George Neugent, District 2
David Rice, District 4
Murray E. Nelson, District 5
SUBJECT: Recommended Procedures on Seven Public Hearing
Agenda Items (R#1-#7), December 15, 2004, Commission Meeting
In order to facilitate the hearing process on the amendments to the Comprehensive Plan and Land
Development Regulations to Implement Goal 105 (Tier System) of the Comprehensive Plan, the
Growth Management recommends the following to the Board:
1) Hold three public hearings on the two transmittal resolutions and seven ordinances
prior to submittal of the transmittal resolutions to DCA. None of the ordinances
will be considered for adoption until DCA has reviewed the proposed amendments
to the Comprehensive Plan being submitted to that agency under the transmittal
resolutions.
2) Read public hearing Items (R#1 through #6) into the record and hear them together
as a package, since these amendments are interrelated. After receiving any public
comment, if appropriate, the Board may then want to provide further guidance to the
staff on making any changes to the draft ordinances.
Z3) Read public hearing Item R#7 into the record and hear it separately from the above
items as this ordinance involves the proposed Tier designation of specific lots or
parcels. It should be noted the draft Tier Overlay District Map is still subject to
future changes resulting from the Special Master process established in the Interim
Development Ordinance for Tier I (Conservation and Natural Areas) and, if
approved by the BOCC, subject to further changes in Tier II and III designations as
provided for in 4) below.
4) Provide the opportunity for property owners not satisfied with the Tier II or III
designation of their property on draft Tier Overlay District Map to request by
March 1, 2005, a change in the designation). These requests will be in writing to
the Planning Department with reasons to justify the change. The staff will review
the requests and, if it supports the request, the draft Tier Overlay District Map will
be revised. Any requests, that the staff is unable to support will be submitted to the
BOCC along with draft Tier Overlay District Map for consideration by the Board at
the adoption hearing(s) in late spring or early summer 2005.
Prior to the public hearings, the staff will provide a briefing on the proposed comprehensive set of
amendments. During this briefing, the Board is encouraged to ask>4 any questions they may have,
but withhold any direction to staff on changes to the proposed ordinances until the public hearings
on the ordinances.
Should the Board have any questions prior to the Wednesday meeting, please don't hesitate to call
Marlene Conaway or me.
cc: Tom Willi, County Administrator
John R. Collins, County Attorney
Danny Kolhage, County Clerk
K. Marlene Conaway, Director of Planning and Environmental Resources