Ordinance 037-2004 .
ORDINANCE NO. 037 2004
AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS ADOPTING AN INTERIM DEVELOPMENT
ORDINANCE DEFERRING AWARD OF ROGO MARKET RATE
ALLOCATIONS FOR ROGO YEAR 12, QUARTER 4 TO YEAR 13,
QUARTER 1, AND YEAR 13, QUARTER 1 TO YEAR 13, QUARTER 2;
PROVIDING NOTICE THAT NO MARKET RATE ALLOCATIONS WILL
BE AVAILABLE FOR AWARD AFTER YEAR 13, QUARTER 1 PENDING
ENACTMENT OF PROPOSED RULE 28-20.110, FLORIDA
ADMINISTRATIVE CODE; PROVIDING FOR EXPIRATION HEREOF 60
DAYS AFTER EFFECTIVE DATE.
WHEREAS, Policy 101.2.13 of the Monroe County Year 2010 Comprehensive Plan
enacted under Rule 28-20.100 F.A.C. requires that a nutrient reduction credit be available before
a new residential permit may be issued; and,
WHEREAS, this policy also provides that the number of allocation awards to be issued
in the next ROGO year will be reduced by the number of applications with sufficient scores to
receive a ROGO allocation but still awaiting a nutrient reduction credit at the end of the previous
ROGO year; and,
WHEREAS, at the end of ROGO Year 11, there were 41 such applications with
sufficient ranking to receive an award, but waiting for a nutrient reduction credit, resulting in a
net reduction of 41 from the total otherwise available in the new ROGO year; and,
WHEREAS, after forfeiting those ROGO allocations due to lack of nutrient reduction
credits from the previous year, ultimately, there were no ROGO allocations available to be issued
for the 4th Quarter of Year 12 and no allocations were therefore awarded; and,
WHEREAS, in the next ROGO year, the County will have allocations available;
however, the total number of allocations available after the 95 forfeitures required by application
of Policy 101.2.13 will yield a net total of 51 market rate allocations; and,
WHEREAS, the BOCC directed staff to ensure that current ROGO applicants be vested
in order of ranking for award of allocations that otherwise would have been made during Year
12, Quarter 4 and Year 13, Quarter 1, had it not been for the challenge to proposed Rule 28-
20.110; and,
WHEREAS, proposed Rule 28-20.110 will amend Policy 101.2.13 to eliminate the
punitive reductions in ROGO allocation awards required under the existing policy language; and
WHEREAS, it is uncertain when proposed Rule 28-20.110 will become effective as it
has been challenged by the Florida Keys Citizens Coalition, Inc. and Last Stand, Inc.; and,
WHEREAS, Section 9.5-122.1 MCC does not authorize vesting of applicants in order of
ranking from ROGO Quarter to ROGO Quarter; and,
WHEREAS, the Growth Management Division and legal counsel have prepared interim
development regulations to amend Section 9.5-122.1 (c) and (d) for a specified period to allow
.
for such vesting to implement the BOCC directive.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
Section 1. The purpose and intent of this Interim Development Ordinance is in accordance with
the Board of County Commissioners' directive of September 21, 2004 to ensure fairness to all
applicants who would otherwise have qualified for ROGO awards but for the forfeitures due to
application of Policy 101.2.13 in ROGO Years 12 and 13.
Section 2. Those 30 applicants who submitted their applications by July 13, 2004 and who
otherwise would have received market rate ROGO allocations in Year 12, Quarter 4 shall be
vested to receive said allocations in Year 13, Quarter 1.
Section 3. Additionally, those 33 applicants who submitted their applications by October 13,
2004 and who otherwise would have received market rate ROGO allocations in Year 13, Quarter
1 shall be vested to receive said allocations in Year 13, Quarter 2.
Section 4. Any applicants who submitted their applications after October 13, 2004 who would
otherwise receive a market rate ROGO allocation but for operation of the forfeiture provision
contained in Policy 101.2.13 shall receive said award at such time as same may become
available.
Section 5. Pursuant to its lawful authority and the pending legislation doctrine as set forth in
Smith v. City of Clearwater, 383 So.2d 681 (Fla. 2d DCA, 1980) the Board of County
Commissioners hereby establishes the interim development regulations set forth in this
Ordinance, which shall remain in full force and effect until the expiration of this legislation
within 60 days of its effective date.
Section 6. If any section, subsection, sentence, clause, item, charge or provision of this
ordinance is held invalid, the remainder shall not be affected by such invalidity.
Section 7. All ordinances or parts of ordinances in conflict with this ordinance are hereby
repealed to the extent of said conflict.
Section 8. The ordinance is hereby transmitted to the Florida Department of Community Affairs
pursuant to Chapters 163 and 380, Florida Statutes.
Section 9. This ordinance shall be filed in the Office of the Secretary of State of the State of
Florida, but shall not become effective until a notice is issued by the Department of Community
Affairs or Administration Commission finding the amendment in compliance with Chapter 163
and 380, Florida Statutes.
Section 10. This ordinance shall stand repealed within 60 days of its effective date in
accordance with the provisions herein,unless repealed sooner.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida
at a regular meeting held on the 17 tray of November , 2004.
Mayor Dixie Spehar yes
Mayor Pro Tern Murray Nelson yes
Commissioner Charles "Sonny"McCoy yes
Commissioner George Neugent yes
Commissioner David Rice yes
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
cop._
° 23 P BY
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Mayor Dixie Spehar
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F . DANNY L. KOLHAGE, CLERK MONROE COUNTY ATTOR EY"11
APPA V D A TO FORM
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Deputy Clerk
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i`gOE COUMY•�
CLERK OF THE CIRCUIT COURT
MONROE COUNTY BRANCH OFFICE
BRANCH OFFICE PLANTATION KEY
MARATHON SUB COURTHOUSE MONROE COUNTY COURTHOUSE GOVERNMENT CENTER
3117 OVERSEAS HIGHWAY 500 WHITEHEAD STREET,SUITE 101 88820 OVERSEAS HIGHWAY
MARATHON,FLORIDA 33050 KEY WEST,FLORIDA 33040 PLANTATION KEY,FLORIDA 33070
TEL.(305)289-6027 TEL.(305)292-3550 TEL.(305)852-7145
FAX(305)289-1745 DeCem{3e15,)2 '3b63.,4 FAX(305)852-7146
Mrs. Liz Cloud, Chief
Bureau of Administrative Code &Laws
The Collins Building
107 W Gaines Street, Suite L43
Tallahassee, FL 32399-0250
Via Certified Mail 7002 2030 0001 2668 7668
Dear Mrs. Cloud,
Enclosed please find certified copies of the following Ordinances:
Ordinance No. 037-2004 adopting an Interim Development Ordinance Deferring Award
of ROGO Market Rate Allocations for ROGO Year 12, Quarter 4 to Year 13, Quarter 1, and
Year 13, Quarter 1 to Year 13, Quarter 2; providing notice that no market rate allocations will be
available for award after Year 13, Quarter 1 pending enactment of proposed rule 28-20.110,
Florida Administrative Code; providing for expiration hereof 60 days after effective date.
This Ordinance was adopted by the Monroe County Board of County Commissioners at a
Regular Meeting in formal session on November 17, 2004. Please file for record. Should you
have any questions, feel free to contact my office at (305) 292-3550.
Danny L. Kolhage
Clerk of the Circuit Court
and ex officio Clerk to the
Board of County Commissioners
By:c_aoaLd C . la2d)Alo
Isabel C. DeSantis, Deputy Clerk
cc: County Administrator
Growth Management Director
County Attorney
BOCC
/File
•
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D. Is d@iJet tt fferei ro it r1-? 0 Yes
1. Article Addressed to: If YES,,iennter e a ei H ss ❑No
1 LL/IHASSEL I t-,IIRDA
Department of State
Bureau of Administrative Code
The Collins Building 3. SSee 'ice Type
Of Certified Mail ❑Express Mail
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Tallahassee, Florida 32399-0250 ❑Insured Mail ❑C.O.D.
4. Restricted D9livery?(Extra Fee) l 0 Yes
2. Article Number f
7002 2030 0001 2668 7668
I (Transfer from service lapel
PS Form,3811,February,2004. • 102595-02-M-1540 Domestic Return Receipt _ ____1
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PS Form 3800,June 2002 See Reverse for Instructions '
FLORIDA DEPARTMENT OF STATE
Glenda E. Hood
Secretary of State
DIVISION OF LIBRARY AND INFORMATION SERVICES
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December 30,2004
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Honorable Danny L. Kolhage
Clerk of Circuit Court
Monroe County
500 Whitehead Street, Suite 101
Key West, Florida 33040
Attention: Isabel C. DeSantis, Deputy Clerk
Dear Mr. Kolhage:
Pursuant to the provisions of Section 125.66, Florida Statutes, this will acknowledge receipt of
your letter dated December 23, 2004 and certified copy of Monroe County Ordinance
No. 037-2004, which was filed in this office on December 29,2004.
Sincerely,
d+o~
Liz Cloud
Program Administrator
LC/kcs
OST A TE LIBRARY OF FLORIDA
R.A. Gray Building. Tallahassee, Florida 32399-0250 . (850) 245-6600
FAX: (850) 488-2746. TDD: (850) 922-4085. http://www.dos.state.fl.us
OLEGISLATIVE LIBRARY SERVICE 0 RECORDS MANAGEMENT SERVICES OFLORIDA STATE ARCHIVES
(850) 488-2812. FAX: (850) 488.9879 (850) 487.2180. FAX: (850) 413-7224 (850) 245.6700. FAX: (850) 488.4894
OADMINISTRA TIVE CODE AND WEEKLY
(850) 245-6270. FAX: (850) 245-6282
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DCA Final Order No.: DCA05-OR-040
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
In re: MONROE COUNTY LAND DEVELOPMENT
REGULATIONS ADOPTED BY
MONROE COUNTY ORDINANCE NO. 037-2004
FINAL ORDER
The Department of Community Affairs (the "Department")hereby issues its Final Order,
pursuant to §§ 380.05(6),Fla. Stat., and § 380.0552(9),Fla. Stat. (2004), approving a land
development regulation adopted by a local government within the Florida Keys Area of Critical
State Concern as set forth below.
FINDINGS OF FACT
v
1. The Florida Keys Area is a statutorily designated area of critical state dncern, aid z
Monroe County is a local government within the Florida Keys Area. +��:- c-
2. On January 7, 2005,the Department received for review Monroe Cou ty.30rdinance:
No. 037-2004 which was adopted by the Monroe County Board of County Com iss onexs.on a?
November 17, 2004 ("Ord. 037-2004").
.ds
3. The purpose of Ord. 037-2004 is to defer the award of Rate of Growth Ordinances
("ROGO")market rate allocations. Ord. 037-2004 defers the award of ROGO market rate
allocations for ROGO year 12, quarter 4,to year 13, quarter 1; year 13, quarter 1 to year 13,
quarter 2; and provides notice that no market rate allocations will be available for award after
year 13, quarter 1 pending the enactment of proposed Rule 28-20.110, Florida Administrative
Code.
' 4. Ord. 037-2004 is consistent with the County's 2010 Comprehensive Plan.
CONCLUSIONS OF LAW
5. The Department is required to approve or reject land development regulations that are
enacted, amended or rescinded by any local government in the Florida Keys Area of Critical
DCA Final Order No.: DCA05-OR-040
State Concern. §§ 380.05(6),Fla. Stat., and § 380.0552(9),Fla. Stat. (2004).
6. Monroe County is a local government within the Florida Keys Area of Critical State
Concern. § 380.0552,Fla. Stat. (2004) and Rule 28-29.002 (superseding Chapter 27F-8),Fla.
Admin. Code.
7. "Land development regulations"include local zoning, subdivision,building and other
regulations controlling the development of land. § 380.031(8),Fla. Stat. (2004). The
regulations adopted by Ord. 037-2004 are land development regulations.
8. All land development regulations enacted, amended or rescinded within an area of
critical state concern must be consistent with the Principles for Guiding Development(the
"Principles") as set forth in § 380.0552(7), Fla. Stat. See Rathkamp v. Department of
Community Affairs, 21 F.A.L.R. 1902 (Dec. 4, 1998), aff'd, 740 So. 2d 1209 (Fla. 3d DCA
1999). The Principles are construed as a whole and no specific provision is construed or applied
in isolation from the other provisions.
9. Ord. 037-2004 promotes and furthers the following Principles:
(a) To strengthen local government capabilities for managing land
use and development so that local government is able to
achieve these objectives without the continuation of the area of
critical state concern designation.
10. Ord. 037-2004 is consistent with the Principles for Guiding Development as a whole.
WHEREFORE, IT IS ORDERED that Ord. 037-2004 is found to be consistent with the
Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is
hereby APPROVED.
4
DCA Final Order No.: DCA05-OR-040
This Order becomes effective 21 days after publication in.the Florida Administrative
Weekly unless a petition is filed as described below.
DONE AND ORDERED in Tallahassee, Florida.
VALERIE J. UBBARD, Dl CTOR
Division of mmunity Planning
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
NOTICE OF ADMINISTRATIVE RIGHTS
ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS
ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING
PURSUANT TO SECTION 120.569, FLORIDA STATUTES, REGARDING THE AGENCY'S
ACTION. DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF
MATERIAL FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE
PROCEEDING,YOU ARE ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A
FORMAL HEARING.
IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED ISSUE
OF MATERIAL FACT CONTAINED IN THE DEPARTMENT'S ACTION, THEN THE
ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED
PURSUANT TO SECTIONS 120.569 AND 120.57(2) FLORIDA STATUTES, AND
CHAPTER 28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN
INFORMAL ADMINISTRATIVE PROCEEDING, YOU MAY BE REPRESENTED BY
COUNSEL OR BY A QUALIFIED REPRESENTATIVE, AND YOU MAY PRESENT
WRITTEN OR ORAL EVIDENCE IN OPPOSITION TO THE DEPARTMENT'S ACTION OR
REFUSAL TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN
STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS
CHOSEN TO JUSTIFY ITS ACTION OR INACTION.
IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY
ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL
ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE
_DIVISION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND
120.57(1), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA
ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY
3
DCA Final Order No.: DCA05-OR-040
BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE,AND
YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON
ALL THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT
REBUTTAL EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS,
AND TO FILE EXCEPTIONS TO ANY RECOMMENDED ORDER.
IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL
HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF
COMMUNITY AFFAIRS A WRITTEN PLEADING ENTITLED, "PETITION FOR
ADMINISTRATIVE PROCEEDINGS" WITHIN 21 CALENDAR DAYS OF PUBLICATION
OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECEIVED BY THE AGENCY
CLERK, IN THE DEPARTMENT'S OFFICE OF GENERAL COUNSEL, 2555 SHUMARD
OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100.
THE PETITION MUST MEET THE FILING REQUIREMENTS IN RULE 28-
106.104(2), FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING IS
REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH
RULE 28-106.301, FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS
REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH
RULE 28-106.201(2), FLORIDA ADMINISTRATIVE CODE.
A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A
REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY
RULE 28-106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSING MEDIATION DOES
NOT AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING.
YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE
PROCEEDING OR A FORMAL HEARING IF YOU DO NOT FILE A PETITION WITH
THE AGENCY CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL
ORDER.
4
r
DCA Final Order No.: DCA05-OR-040
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with
the undersigned designated Agency Clerk, and that true and cwrect copies have been furnished
to the persons listed below by the method indicated this 244 'ay of February, 2005.
Oirv:75612- 95k
Paula Ford, Agency Clerk
By U.S. Mail:
Honorable Dixie Spehar
Mayor of Monroe County
500 Whitehead Street, Suite 102
Key West, Florida 33040
Danny L. Kolhage
Clerk to the Board of County Commissioners
500 Whitehead Street
Key West, Florida 33040
Timothy J. McGarry, AICP
Director, Growth Management Division
2798 Overseas Highway, Suite 400
Marathon,Florida 33050
By Hand Delivery or Interagency Mail:
Jim Quinn, Bureau of State Planning, DCA Tallahassee
Rebecca Jetton, ACSC Administrator, DCA Tallahassee
Richard E. Shine,Assistant General Counsel, DCA Tallahassee
5