Item B1
Meeting Date: 8/16/06 - KL
Bulk Item: Yes No .-X..-
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
** 8:30 a.m. TIME CERTAIN **
Division: County Attorney
Department: County Attorn~
Staff Contact Person: Jerry D. Sanders
AGENDA ITEM WORDING:
An Attorney..client Closed Session in the matter of Monroe County v. Florida Department of
Community Affairs. DCA Final Order No. DCA06-0R-/57 .
ITEM BACKGROUND:
1. On June 29,2006, pursuant to Section 380.05(6) of the Florida Statutes, the Florida Department of
Community Affairs (DCA) issued Final Order Number DCA06-OR-157 rejecting Monroe County
Ordinance No. 015-2006 after finding it to be inconsistent with the Principles for Guiding
Development of the Florida K~s Area of Critical State Concern.
2. The DCA's Final order was submitted for publication in the Florida Administrative Weekly on June
29,2006 for publication on July 14,2006.
3. Pursuant to Section 120.569, any person whose substantial interests are affected by the Final Order
has the opportunity to request an administrative proceeding regarding the DCA's action. Such a
request must be filed with the Agency Clerk of the Florida Department of Community Affairs within
21 calendar days of publication of the Final Notice.
4. A Petition for Formal Administrative Proceedings was filed with the State of Florida Division of
Administrative Hearings on July 21,2006.
PREVIOUS RELEVANT DOCC ACTION:
1. On April 19, 2006, Monroe County Ordinance No. 0/5-2006 was passed unanimously by the BOCC
at its regular meeting.
2. On February 15, 2006, Workforce Housing Task Force recommendations were conceptually
approved and direction given to staff by the BOCC pursuant to Resolution No. 093-2006 and
Resolution 096-2006.
3. On July 19, 2006, at its regular meeting, the Board authorized staff to appeal DCA's rejection of
Monroe County Ordinance 0/5-2006 by filing a Petition for Formal Administrative Proceedings
with the State of Florida Division of Administrative Hearings.
4. On July 24, 1006, the BOCC approved the advertising and holding the Atto~-Client Closed
Session in this matter.
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDADONS: Approval.
TOTAL COST:
COST TO COUNTY:
REVENUE PRODUCING: Yes
No X
BUDGETED: Yes No
SOURCE OF FUNDS:
AMOUNT PER MONTH_ Year
APPROVED BY: County Atty --.lL OMBlPurchasing ~ Ri~Management
DIVISION DIRECrollAPPROVAL: C_ _;;;Z ~ U
~ON,CO ATTORNEY
DOCUMENTATION:
DISPOsmON:
Revised 'lJOS
Included
Not Required _
AGENDA ITEM #
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY
NOTICE OF ATTORNEY..CLIENT CLOSED SESSION
The Board of County Commissioners of Monroe County, Florida, pursuant to Section 286.011(8),
Florida Statutes will hold a Closed Attorn~-Client Session during a public meeting to be held on
Wednesday. AUl!ust 16. 1006. at 8:30 A.M.. at the Key Largo Library, Tradewinds Shopping Center,
101485 Overseas Highway, Mile Marker 101, Key Largo, Florida.
Those persons attending the Closed Session will be the County Commissioners, County Administrator
Thomas 1. Willi, County Attorney Suzanne A Hutton, Assistant County Attorney Bob Shillinger, Assistant
County Attorn~ Jerry Sanders, Jerry Coleman, Esq., the County's counsel in this litigation, and a certified
court reporter. The purpose of the Closed Session concerns pending litigation in the case of Monroe County
v. Florida Department of Community Affairs. DCA Final Order No. DCA06-0R-/57, in which the County is
presently a party. At the end of this Closed Session, the public portion of the meeting will be opened.
Dated at Key West, Florida, this 21st day of July, 2006.
Office of the County Attorney
Publication dates
Reporter
Keynoter
Key West Citizen
7/28/06
7/29/06
7/30/06
cc: Court Reporter
STATE OF FLORIDA .
DIVISION OF ADMINSTRATIVE HEARINGS
MONROE COUNTY,
Petitioner,
v.
CASE NO.
DCA Final Order No. DCA06-0R-157
FLORIDA DEPARTMENT OF
COMMUNITY AFFAIRS,
Respondent.
1
PETITION FOR FORMAL ADMINISTRATIVE PROCEEDINGS
Introduction
Monroe County, a political subdivision of the State of Florida, files this Petition
for Formal Administrative Proceedings pursuant to Sections 120.569 and 120.57(1),
Florida Statutes, to challenge the Final Order of the Department of Community Affairs
rejecting the Land Development Regulation adopted. by Monroe County and states as
follows:
1. The challenged final order is: DCA06-0R-157, published in the Florida
Administrative Weekly, Volume 32, No. 28, July 14, 2006.
2. The challenged final order rejects a land development regulation that seeks
to implement portions of the Monroe County Comprehensive Plan and
regulate land use and development within Monroe County.
3. This challenge is based on the consistency ofthe subject Land
Development Regulation (LDR) with Chapter 380, Florida Statutes, the
Area of Critical State Concern Act, and Florida Statutes, Section
125.01055 regarding Affordable Housing. The regulation encourages and
allows the creation of more affordable housing by allowing a "dwelling
density bonus unit" and counting affordable dwelling units as half-units
for the purpose of density computation if less than 750 square feet.
4. Petitioner seeks an administrative determination overturning the Final
Order of the DCA on the basis that it is consistent with the requirements of
Chapter 380, Florida Statutes, and Florida Statutes Section 125.01055 for
the reasons stated below.
Identification of Petitioner and Other Parties
5. Petitioner, Monroe County, is a non-chartered county and a political
subdivision of the State of Florida, whose address is 500 Whitehead
Street, Key West, Florida 33040.
6. Respondent, Department of Community Affairs ("DCA") is a State agency
exercising powers granted to it by Section 380.05, Florida Statutes, to
approve or reject land development regulations that are enacted, amended,
or rescinded by any local government in the Florida Keys Area of Critical
State Concern ("ACSC"). DCA's address is 2555 Shumard Oak
Boulevard, Tallahassee, Florida 32399-2100.
Explanation of Bow Petitioner's Substantial Interests Are or Will be Affected
7. The Monroe County Board of County Commissioners has found that there
is a current lack of sufficient affordable housing and a current estimated
unmet need of over 7,300 affordable units within the County.
8. The Monroe County Board of County Commissioners has further found
that the lack of sufficient affordable housing opportunities for the local
work force creates serious risk to the local economy.
2
9. the Monroe County Board of County Commissioners has found that a
limited land area suitable for residential development remains in the
County and allowing a density bonus when building affordable housing
will allow for the creation of more such housing and that such is a
legitimate governmental interest and proper to implement goals 101 and
601 of the Monroe County Comprehensive Plan (Policy 101.4; Policy
101.4.5.; Policy 601.1.12; and Objectives 601.2 and 601.6). The Land
Development Regulations in question specifically further Florida Statute
Section 163.3202(3) by implementing an innovative land development
regulation provisions such as transfer of development rights, incentive,
and inclusionary housing.
10. The Monroe County Board of County Commissioners has further found
that the Amendments to the LDRs in question specifically further Florida
Statute Section 125.01055 providing "that a County may adopt and
maintain in effect any law, ordinance, rule or other measure that is adopted
for the purpose of increasing the supply of affordable housing using land
use mechanisms such as inclusionary housing ordinances."
II. If Monroe County is not allowed to utilize the Amendment to the LDRs in
question and similar regulations it will be inhibited in its ability to increase
the supply of affordable housing within the county and as such both the
County and its citizens will be "adversely affected".
12. Monroe County is a "substantially affected person" entitled to initiate this
proceeding in accordance with the Florida Administrative Procedure Act.
3
When and How Notice Was Received
13. Notice of the Final Order was received via publication in the Florida
Administrative Weekly, Volume 32, No. 28, July 14, 2006.
14. This Petition is filed within 21 days ofthe publication ofthe Notice of
Final Order.
Statement of Material Facts DisDuted and Alle2ed
15. Final Order No. DCA06-0R-157 (attached as "Exhibit A") rejects
Monroe County Ordinance No. 015-2006. (Attached as "Exhibit B"),
which Ordinance amends Section 9.5-4 (Definitions), Section 9.5-262
(Maximum Residential Density and District Open Space), and Monroe
County Section 9.5-352 (Required Parking).
a. Section 9.5-4 (D-31(a)) adds a new definition to the Monroe
County Land Development Regulations of a "dwelling, density
bonus unit" and defines same to mean "the additional number of
dwelling half units that can be added to a site pursuant to means as
defined in Section 9.5-262 and shall be (one (1) or more rooms
physically arranged to create housekeeping establishment for
occupancy by one (1) family with separate toilet facilities. The
abbreviation'DDBU' shall mean 'dwelling density bonus unit.')."
b. Section 9.5-4 (D-31(b)) creates a new definition of "dwelling half
unit" to mean a "deed restricted affordable housing unit(s) as
defined in MCC Section 9.5-4 (A-4-5) that range in size from 400
to 750 square feet which shall be considered one half (.5) of a
4
dwelling unit for the purposes of calculating density as laid out in
Section 9.5-262."
c. Section 9.5-262 adds the following parenthetical allowance for
density calculations for deed restricted affordable or employee
housing units providing that units which range in size from 400 to
750 square feet shall be considered a dwelling half-unit as defined
above.
d. Section 9.5-352 creates a new category for required number of off
street parking spaces requiring that dwelling half-units are only
required to have 1.0 space per dwelling half unit as a minimal
number off street parking.
16. The Final Order of the DCA found the Ordinance in question to be
"inconsistent with the 2010 Monroe County Comprehensive Plan" in that
"The Plan does not address half allocations or density bonuses for half
allocations." Petitioner contends that the Ordinance in question is
consistent with the 2010 Monroe County Comprehensive Plan,
specifically;
(a) Goa1601 which states "Monroe County shall adopt programs
and policies to facilitate access by all current and future
residents to adequate affordable housing that is safe, decent
and structurally sound and that meets the needs of the
population based on type, tenure characteristics, unit size and
individual preferences."
5
(b) Policy 601.1.12 which states the County "shall adoot land
develooment rellUlations which may include density bonuses,
impact fee waiver program, and other possible regulations to
encourage affordable housing." [Emphasis added]
(c) Section 7.2.2 of the Monroe County 2010 Comprehensive
Plan Technical Document provides for "special housing
needs." The Department of Community Affairs established
an affordable housing task force for the Florida Keys in
conjunction with the provision of technical assistance to
Monroe County and made specific recommendations to the
County to include regulatory reform to "explore and support
the concept of establishing a new zoning designation for
affordable housing. This could be handled as an overlay
zone combined with other zoning tools or by site specific
designations and/or special exceptions for specific sites."
Other recommendations of the DCA's Task Force were as
follows:
(1) "Local ordinances should be adopted which ease land
development requirements and construction regulations
to reduce the cost of affordable housing development."
(2) "The following incentives should be provided for
affordable housing projects and programs:
6
- Relaxation of traffic study requirements
- Density relaxation"
(d) Section 7.3.2 of the Monroe County 2010 Comprehensive
Plan Technical Document further provides for strategies to
meet the diverse housing needs of Monroe County's
projected population to include:
(1) "A range of residential land use categories shall be
utilized;
(2) "A variety of residential density shall be provided to
encourage the private sector to construct a variety of
housing unit types."
(e) The Department of Community Affairs has failed to follow
the legislative intent of Florida Statute, Section 380.0552,
which designates the Florida Keys Area as an Area of
Critical State Concern and which granted the DCA the
authority to reject the Ordinance in question, specifically:
"(2) LEGISLATIVE INTENT - it is hereby declared
that it is the intent of the legislature is: . . .
(d) to provide for affordable housing in close proximity
to places of employment in the Florida Keys."
17.
(a)
In rejection ofthe Ordinance on the grounds that it was
inconsistent with the principles for guiding development as set forth in
Florida Statutes, Section 380.0552(7) the Department of Community
Affairs has violated the specific intent of the legislature which states: "the
7
principles shall be construed as a whole and no specific provision shall be
construed or applied in isolation from the other provisions" .
(b) Furthermore, one of the principles [F.S. ~380.055(7)0)] provides for
Monroe County: "0) To make available adequate affordable housing
for all sectors of the population of the Florida Keys."
(c) The Department of Community Affairs has selectively utilized
individual principles for guiding development without consideration of
the affordable housing crisis in Monroe County and the necessity for
implementation of ordinances adopted for the purpose of increasing
the supply of affordable housing.
18. The Department of Community Affairs has ignored Florida Statute
125.01055 which states:
Affordable housing - Notwithstanding any other provision of law, a
county may adopt and maintain in effect any law, ordinance, rule, or
other measure that is adopted for the purpose of increasing the supply
of affordable housing using land use mechanisms such as inclusionary
housing ordinances.
Concise Statement of Ultimate Facts Alle2ed
19. The Ordinance which adopted the Land Development Regulations which
were rejected by the Final Order of the Department are consistent with
Monroe County's approved and adopted 2010 Comprehensive Plan and is
specifically authorized by Florida Statute Section 125.01055 in order to
increase the supply of affordable housing within Monroe County.
Rules or Statutes Petitioner Contends Reauire Reversal or Modification of the
A2encv's Proposed Action
8
20. The Final Order violates the legislative intent as stated in Section 380.0552
and the principles for guiding development, Section 380.0552(7).
21. Florida Statutes Section 125.01055 specifically authorizes the County to enact
the Ordinance which has been rejected by the Department of Community
Affairs.
Relief SORe-ht bv Petitioner
WHEREFORE, it is respectfully requested that the Division of Administrative
Hearings conduct a formal administrative hearing on the issues raised in this Petition and
enter a Final Order determine the Final Order ofthe Department of Community Affairs to
be invalid for the reasons stated above.
Respectfully submitted this 21 st day of July, 2006.
Monroe County Attorney's Office
P.O. Box 1026
Key West, FL 33041-1026
(305) 292-3470
(305) 292-3516 (fax)
Suzanne A. Hutton, County Attorney
FBN: 336122
Robert B. Shillinger
Chief Assistant County Attorney
FBN: 058262
Shillinger -bob@monroecounty-fl. gov
Jerry D. Sanders
Assistant County Attorney
FBN: 112798
Sanders-Jer (i monroecount -fl.
9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by facsimile and u.s. Mail to the Secretary of the Department of Community
and its General Counsel at 2555 Shumard Oak Boulevard, Tallahassee, FL 32399-2100.
10
DCA Final Order No.: DCA06-0R-157
In re:
STATE OF FLORIDA .___ .
DEPARTMENT OF COMMUNITY A1~ & ~ 0 W ~ ill
MONROE COUNTY LAND ' ~
DEVELOPMENT REGULATIONS IJ~ JUL - 5 2006
ADOPTED BY MONROE COUNTY
ORDINANCE NO. 015-2006
/
GROWTH ~M~AGfMENT DIVISION
____. .........L ...,/-
.! ~.~.
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. (2005), rejecting a land
development regulation adopted by a local government within the Florida Keys Area of Critical
State Concern as set forth below.
FINDINGS OF FACT
1. The Florida Keys Area is a statutorily designated area of critical state concern,
and Monroe County is a local government within the Florida Keys Area.
2. On May 22, 2006, the Department received for review Monroe County Ordinance
No. 015-2006 ("Ord. 015-2006").
3. The fmal order for this Ordinance must be signed by July 20,2006.
4. The purpose ofthe Ordinance is to amend the definitions section of the Monroe
County Land Development Regulations to add "dwelling, density bonus unit" and "dwelling,
half unit," to the definitions, thereby allowing an award to a site if the units are 750 square feet in
SIze.
5. Ordinance 015-2006 is inconsistent with the 2010 Monroe County
Comprehensive Plan. Sections 9.5-4(D-31)(a) ("dwelling, density bonus unit"), 9.5-4(D-31)(b)
("dwelling, half unit"), and 9.5-262 are inconsistent with Comprehensive Plan Policy 101.4.21,
Future Land Use Densities and Intensities. That policy describes development in terms of
dwelling units per acre. The plan does not address half allocations or density bonuses for half
EXHIBIT
I ,if)- Jj
.
DCA Final Order No.: DCA06-0R-157
allocations. No basis has been established within the Comprehensive Plan for half of a dwelling
unit.
CONCLUSIONS OF LAW
6. The Department is required to approve or reject land development regulations that
are enacted, amended, or rescinded by any local government in the Florida Keys Area of Critical
State Concern. ~ 380.05(6), Fla. Stat., and ~ 380.0552(9), Fla. Stat. (2005).
7. Monroe County is a local government within the Florida Keys Area of Critical
State Concern. ~ 380.0552, Fla. Stat. (2005) and Rule 28-29.002 (superseding Chapter 27F-8),
Fla. Admin. Code.
8. "Land development regulations" include local zoning, subdivision, building, and
other regulations controlling the development ofland. ~ 380.031(8), Fla. Stat. (2005). The
regulations adopted by Ord. 015-2006 are land development regulations.
9. 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.
10. Ord. 015-2006 is inconsistent with 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.
(k) To provide adequate alternatives for the protection of public
safety and welfare in the event of a natural or manmade
disaster and for a post disaster reconstruction plan.
(1) To protect the public health, safety, and welfare of the citizens
of the Florida Keys and maintain the Florida Keys as a unique
Florida resource.
11. Ord. 015-2006 is inconsistent with the Principles for Guiding Development as a
2
DCA Final Order No.: DCA06-0R-157
whole.
12. Ordinance 015-2006 is inconsistent with the 2010 Monroe County Comprehensive
Plan.
WHEREFORE, IT IS ORDERED thafOrd. 015-2006 is found to be inconsistent with the
Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is
hereby REJECTED.
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.
CYD ER
State PI . g Administrator
Division of Community 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
ADMINISTRA TIVE 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 REPRESENT A TIVE, AND YOU MAY PRESENT
3
DCA Final Order No.: DCA06-0R-157
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
ST A TEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS
CHOSEN TO JUSTIFY ITS ACTION OR INACTION.
IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY
ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL
ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE
DIVISION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND
120.57(1), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA
ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY
BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND
YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON
ALL THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT
REBUTTAL EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS,
AND TO FILE EXCEPTIONS TO ANY RECOMMENDED ORDER.
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 ADMINISTRATIVE0PROCEEDING 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
DCA Final Order No.: DCA06-0R-157
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 orrect9~;;: been furnished
to the persons listed below by the method indicated this yo.. ~OO6;
By U.S. Mail:
Honorable Charles McCoy
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
Aref Joulani
Acting Director
Planning and Environmental Resources
2798 Overseas Highway, Suite 400
Marathon, Florida 33050
By Hand Delivery or Interagencv Mail:
Tracy D. Suber, Bureau of State Planning, DCA Tallahassee
Rebecca Jetton, ACSC Administrator, DCA Tallahassee
Richard E. Shine, Assistant General Counsel, DCA Tallahassee
Christine M. Cosby, Assistant General Counsel, DCA Tallahassee
5
ORDINANCE NO. .JU.1 ~ 2000
AN ORDINANCE OF THE MO'NROE COUNTY BOARD OF
COUNTY COMMISSION'ERS ADDING TO EXI&'TING
DEFINITIONS (See. 9.So4); AMENDING MAXIMUM
RESIDENTIAL DENSITVAND DISTiUCT OPEN SPACE (See.9.s.
262) TO' ALLOW FOR DENSlTY80HUSIS FOR AFFORDABLE
UNITS OF 750 SQ. FT. OR I.ESS; AMENDING REQUIRED
PARKING (See~9.s.35Z); AMENDING AND/OR ADDING FaR
CONSISTENCY PURPOSES RELATED PROVISIONS;
PROVIDING FOR SEVERABILITY AND REPEAL 6f
INCoNSISTENT PROVISIONS; PROVIDING EFFECTIVE DAT.E;
PROVIDING FOR INCORPORATIaN IN THE MONROE
COUNTY caDE aF ORDINANCES
WHEREAS, the Board ()f County Commissiooors bas considered the comments
of the public. recommendations of the Planning Comminio~ recommendations of staff
and the Workforce Housing Task Force and its counsel.lll1d other matters.. and;
WHEREAS. the Board of County Commissioners makes the following Findings
of Fact:
1, The lack of sufficient affmdabiehousing opportunities for the local
workforce creates serious risks to the 100&1 economy.
2, There is limited bmd area suitable for residential development remaining
in the County.
3. There is a current estimated unmet need of aoout 1.311 affordable units
the County.
4. Allowing a density bonus will allow for the creation of more affordable
housing under the Code. is a legitimate state interest ood is proper to implement Goals
101 and 601 of the plan (e.g.., O~ective 101.4; Policy 101.4.5; Poli~ 601.1.12 and
Objectives 601.2 and 60 t .6).
S. These amendments to the land development regulations are appropriate in
that they recognize .the need for additional detail and comprehensiveness in addressing
housing needs in Monroe County. based upon. among other factors. new issues, including
accelerated conversion of existing affordable housing stoel4 increased housing pressures
due to bou,qingloss caused by Hurricane Wilma. and the changed projections and
assumptions regarding resulting demographic trend~.
6. 'i'hese amendments ro the land development regulations spt"CH1caUy
further Fla. Stat. ~ 163,3202(3) by implementing innovative land developmentregulatiort
provisions such as transter of development rights. incentive lll1d inclusionary housing.
'1, These amendments to the land development regulations are necessary to
ensure that. oospile the limited availability of developabje lands, the County's existing
ttnd future housing stock includes adequate afft:,rdable hou.<iing oppurtunities.
I
EXHIBIT
I B P
1
g, proposed amemimentslo the Land Development Regulations are
consistent with and further goals. objectives aoopoHcies of' too Year 2010
Compreoonsive Plan.
NOW~ THEREFORE. BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORiDA, 'mE FOLLOWlNG:That
the precooingfindings support im decision to approve the amendments to the Land
Development RegulatIons of the Monroe County Code as provided herein:
Seetion 1.
Add See. 9.s.4(D-:U)(a) as follows;
(D.31}(a) Dwelling, density bonus unit mcatlS the additional numb<< of dweUing
half units tbat can be added to a site pursuant to tbe means as defined in Section 9.5-
262.... and shall be one (1 lor more rooms physically arranged. to create a housekeeping
establb,;bment fur occupancy by one (1) family with separate toilet facilities. The
abbreviation '''DDBtJ'' shall mean "dwelling density bonus unit".
Seedo.2.
Add Set.9.S.4(D-31) (b) as foDows:
(D~31)(b) Dwelling, hafl unit means deed restricted affordable housing, unitfi as
definoo in MCC i 9.5~4 (A~4-5) that range in size .from 400 to 1S0sqUiill'e teet which
shall be c<msidered one.-half (.5) of a dwelling \Init for the purpose of calculating density
as laid out in ~9.5~262*".
~~ion a.
Amend chart rows o.f See. 9.5.,162 uti add 1ft · row as follows:
Maximum residential dftslty and dJltrietopen .pace. *,
Land use district
Maximum net density
abl<t area
t 8.0**
Open ,rpace
ratio *
0.2
0,2
0.2
0.2
6.0
Mixed Use
(Affordable and
Employee housing)
1.0
1.0
12.0
0.2
18. on
0.2
** For the purposes of these density calcul~ti(}ns ,1ft!)', notwithstanding the detlnition af a
dwelling unit as defined in ~9 .5~4 (D~31). deed restricted anbrdable (}f employee h()uslf1g
units (as detlned. in MCC~~9..5-(A-4-5) and (E-t), respectively), in the ~~.~ t\!U and ~JR
2
land use districts that wlgein size from. 40(1 to 150 3ql.lat'c teet shan. be oonsidered . a
dwelUng hall unit, An equal number of additianal dweUinghalf lmif(s) shall be ~vailahle
tbr each dwelUng balf unit provided. The additioool dwelling half units shaH be defined
as dwelling density bonus unit(s),
~!~J>>n 4.
Amend SeetloR 9.s..3S1 by adding row as follows:
(c) Required Number ~f tm:.",r;lreet Parking Spaces: The following is the number nf
IJftrking spares to be provided for each use~
TABLE INSET:
MinimumReq~ NumberofS~
1.0 spaces pet dwemng half unit
Sml()D5.~(Werabmtv.
If any section. paragraph. subdivision. clause. sentence or provision of this Ordinance
shalt be adjudged by any court of competent jurisdietion to be invaJid;such judgment
shaH not affect. impair. invalidate, or nullifY the rerrntinder tl{ this Ordinance. but the
effect thereof shall 00 confined to the section; paragraph,. subdivision, clause, sentence or
provision immediately involved in the controversy in which such judgment or decree
shall be rendered.
~t~11 6. ConftietiBJ {l'rovisio~.
In the cue of direct conflict between any provision of this ordinance and It portion Of
provisiOfiQf any appropriate federal, state t>f' county law, rule, code or regulation.. the
more Nstrictive shall apply.
Sedi~ll 7. ... Tnm~lldttal
This ordinance sbaU be transmitted by the Planning and Environmental Resou.tOOs
Department to dIe Florida DePartment of Community Affairs to detennine the
consistency of this ordinance 'with the Florida Statutesaoo as required by F.S. 380.05(6)
and (1 I).
Sediq~ 8. FWne:
This ordinance shaH be tiled in the Office of the Secretary of State of Florida but shaH
not become eftbctive until a notice is issued by the Department of Community Affairs or
Administration Commission approving the ordinance.
3
SeetioD t., EtreeQyI,J>>Jt~
This ordinance shall become efti:<itive as provided by law and stated above, Where
Compreneusi've Plan amendments may be required in order for any pm of this ordinance
t{) be deemed consistent witb tfit Comprehensive Plan" tbe effective date of such part
shall be as of the effective date of tnereql.lired C:omprehensive Pbm amendment ood tiS
otherwise required by law.
PASSED AND ADOPTED by the Board of County Olmmissiunem ofMooroe Countyt
I;'torida at Ii regular mooting held on the 19lh day of April, 2006,
Mayor Charles"Sonny~' McCoy
Mayor Pro Tem Murray Nelson
Commissioner Dixie Spehar
Commissioner Goorge Neusent
Commissioner David Rice
Yea
Vacat:w-
"Yes ,_
_Yes
.Y,e!
BOARD OF COUNT
OF MONROE C
, Meet))'
Coullty Attomey~--
3: g i -r'l
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APPROVED AS TO FORM:
4
O~~Yd'~~~E
(305)294-4641
Suzanne A. Hutton, Couuty Attoruey..
Robert B. Shillinger, Chief Assistant County Attorney *'"
Pedro 1. Mercado, Assistant County Attorney
Susan M. Grimsley, Assistant County Attorney **
Natileene W. Cassel, Assistant County Attorney
Cynthia L. Hall, Assistant County Attorney
Christine Limbert-Barrows, Assistant County Attorney
** Board Certified in City, County & Local Govt. Law
December 18, 2007
Danny 1. Kolhage, Clerk of Court
Monroe County, Florida
500 Whitehead Street
Key West, FL 33040
r~'~'---
BOARO OF COUNTY COMMISSIONERS
Mayor, Charles "Sonny" McCoy, District 3
Mayor Pro Tem Mario Oi Gennaro, District 4
Dixie M. Spehar, District 1
George Neugent, District 2
Sylvia J. Murphy, District S
Office of the County Attorney
1111 It" Street, Suite 408
Key West, FL 33040
(305) 292-3470 ~ Phone
(305) 292-3516 - Fax
RE: Original transcripts from Monroe County v. Department of Communi tv Affairs
Dear Mr. Kolhage:
Enclosed the original transcripts from closed session held August 16,2006, and January 18, 2007,
regarding the above-stated matter. This case is closed and these can now be considered official
records of the Court.
Sincerely,
/C) ./j
/"( Jh'~0f--~L~~L/
Debra 1. Rainer, Paralegal
Enclosures as stated
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BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY
NOTICE OF ATTORNEY-CLIENT CLOSED SESSION
The Board of County Commissioners of Monroe County, Florida, pursuant to Section 286.011(8),
_~ Florida Statutes will hold a Closed Attorney-Client Session during a public meeting to be held on
Wednesday. Aueust 16. 2006. at 8:30 A.M.. at the Key Largo Library, Tradewinds Shopping Center,
101485 Overseas Highway, Mile Marker 101, Key Largo, Florida.
Those persons attending the Closed Session will be the County Commissioners, County
Administrator Thomas J. Willi, County Attorney Suzanne A. Hutton, Assistant County Attorney Bob
Shillinger, Assistant County Attorney Jerry Sanders, Jerry Coleman, Esq., the County's counsel in this
litigation, and a certified court reporter. The purpose ofthe Closed Session concerns pending litigation in the
case of Monroe County v. Florida Devartment of Community Affairs. DCA Final Order No. DCA06-0R-157,
-
in which the County is presently a party. At the end of this Closed Session, the public portion of the meeting
will be opened.
Dated at Key West, Florida, this 21st day of July, 2006.
~
Office of the County Attorney
Publication dates
Reporter
Keynoter
Key West Citizen
7/28/06
7/29/06
7/30/06
cc: Court Reporter
-
J
s Sc:rift
the day CIoeecl SelIsion
. e poiDt duriB8 the clay oftbe cIoIed seasion.
1. I'rior" ... .... ...
A dosed IIIltOI1lOY cl:"
held. It is eltiJuled that this
be tile Couuly C:.auni IF -,..... tile
A. HutlOO, Auitt-t CClUIIly
IIIlIOOICy 1eny eoa-.", BIq.. who .
i. the BlIbjec:t of this cIoIed I . OIl,
Since lbe law prohibits
COIIIIIIiasio.... die COUIIlY . .
fllIDAin in this 11I.1 ':"'8'-' ...
ICSIioIt i. over. _'Will ~
2.
At""l.' v' .......
I _ cell this cIoIed
Iequeet oftbe CouaIy AUomIIY
.July 2.4. 2006 that Ihe nnikld
approwd hoIdilll today'. doled
CitiMn 011 7130106, die Ljaotcr
beiDa gMm to die c:ourt .......1llo1 b
For die I'IIlOI1I, .... the
st.miD8 wiIh tile COImDiIlBioa.
(After llII haw idemifted
JlIlIl...~;wewill
litiption ClCJl4"IlIitures. We
iaro.-tiOll .... diredioa to tbe
be done in . _i"l opeD to the
lAl'la.tour~rl 'na
3. At"'''''''''''''
This closed semon is_
4. After.... pIIIIIie n.....-
The attonICy-clical
meeting.
...-- to ~ 286.011(8). Florida S....""'. will now be
will tab (1) hour. The 1""'....... ';. die meW. will
ThomIs J. WiIJi, County A&tomeY Suanne
lbJbert B. SIIiII..... ~ Couaty IdklnIey 1eny SaDden,
. as . ..",....." COUIlIII b tile CGuoty in the _ tMt
. c:ourt .~.
fi'om being pr_ . the cI08Ild seuioD. the
ibr die CouIIty IIIIIlI the court repoIter..m -
IR ........_ 10 Jc:pe dIe.-. WIra tile cIoIed
puIlIic meeli\18- 1.1IiI public a...... iI_ cIoIlld
J f...
to order ~~ the I'IIlOI1I, this II l . :'118 is beiaa IteId upoII the
A. . who -~ at . prior pubIiG.,. "i. held on
. tbe ..ina 1__ u....... r,--. v. FIoridIJ
At that meeciD8. the BolIRl
ic aoIicc _ (livat by pubIiclP- in tbe Key W.
1f1.9106 tbe .... 011 712t106. A copy of thIl aoIicc is
. iIIl_ record.
oft1le ~ 1.....-.. eKh ofus will stIIkl our -- position
I
>-l-yau.
I
,
be 7!3' SClIftmeat H ~ ..:....,.." MId ilb~ re1stiJl8 to
tab IIIIJ ., acdoa at this -. We caD only provide
doci~ this BoenI makes conccmiag this cue must
'c. '
. I f
hdle'~~-
,
._........... n IlL
,
~ we wiIIllD lecoavcne ill die public meeting.
....~-
hili ~ ....,..;...... ... we IR now ro-opelliag this public
-' ,
MEETING OF THE
.~.
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
ATTORNEY-CLIENT CLOSED SESSION
RE: MONROE COUNTY v. FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS
DCA FINAL ORDER NO. DCA06-0R-157
HELD AT THE
KEY LARGO LIBRARY
101485 OVERSEAS HIGHWAY
KEY LARGO, FLORIDA 33037
AUGUST 16, 2006
8:35 - 9:11 A.M.
COMMISSIONERS PRESENT:
" .,
MAYOR CHARLES "SONNY" MCCOY
MAYOR PRO TEM DIXIE SPEHAR
COMMISSIONER GLENN PATTON
COMMISSIONER GEORGE NEUGENT
ALSO PRESENT:
SUZANNE A. HUTTON, ESQ., COUNTY ATTORNEY
JERRY COLEMAN, ESQ. SPECIAL COUNSEL
THOMAS J. WILLI, COUNTY ADMINISTRATOR
". ...
On~G~NAL
All Keys Reporting - Court Reporters - (305) 289-1201
Locations in Key Largo, Marathon & Key West
2
1
MAYOR MCCOY:
Okay.
I'm now calling this
2
closed session to order.
For the record, this meeting
3 is being held upon the request of the County Attorney
4 Suzanne Hutton, who announced at a prior public meeting
5 held on July 24th, '06, that she needed advice
6 concerning the pending lawsuit, Monroe County versus
7 Florida Department of Community Affairs, DCA Final
8 ordinance number DCA 06 OR 157. At that meeting, the
9
Board approved holding today's closed session.
Public
10 notice was given by publication in the Key West Citizen
11 on 30/06, and The Keynoter on 29/06, and The Reporter
12 1/28/06. And a copy of that notice is being given to
13
the court reporter for inclusion in the record.
You
14 have it?
15
THE COURT REPORTER:
(Indicating. )
16
MAYOR MCCOY:
She has it.
For the record
17 benefit of the court reporter, each of us will state
18 our name and position, starting with the commission.
19 To the left. To the left.
20
MS. HUTTON: Mr. Neugent.
21
MAYOR MCCOY: Just give us your name and phone
22 number, and address.
23
COMMISSIONER NEUGENT:
George Neugent.
24
Marathon, Florida.
1583 52nd Street.
25
MS. HUTTON: No, you don't need to do that,
All Keys Reporting - Court Reporters - (305) 289-1201
Locations in Key Largo, Marathon & Key West
10
11
12
13
1 Commissioner.
3
2
COMMISSIONER NEUGENT:
USA.
3
MAYOR MCCOY:
Leave him alone.
4
COMMISSIONER NEUGENT:
U.S. Islands.
5
MAYOR MCCOY:
Glenn.
6
COMMISSIONER PATTON:
Glenn Patton, Key Largo.
7
MAYOR MCCOY:
Charles McCoy, Mayor.
8
COMMISSIONER SPEHAR:
Dixie Spehar, Mayor Pro
9 Tern.
MS. HUTTON:
MR. WILl:
MR. COLEMAN:
MS. HUTTON:
14 leave.
15
MAYOR MCCOY:
Suzanne Hutton, County attorney.
Tom Willi, County administrator.
Jerry Coleman, outside counsel.
Mr. Level (Ph.), you need to
Did you notice you were by
16 yourself? You know when you're not wanted.
17
18
19
MR. LEVEL:
I'm sorry.
(Whereupon Mr. Level exits the room.)
MAYOR MCCOY:
20 county attorney.
21
MS. HUTTON:
Start the discussion with the
Good morning, Mr. Mayor,
22 Commissioners. As you know, we are involved in a
23 challenge to the DCA order, denying approval of an
24 ordinance that we put forward, this commission
25 approved, allowing a dwelling density bonus unit, which
All Keys Reporting - Court Reporters - (305) 289-1201
Locations in Key Largo, Marathon & Key West
4
1 would count affordable dwelling units as half units, if
2 they're -- for density purposes, if they are less than
3
750 square feet.
And the DCA denied that.
We need to
4 ask you questions and get guidance from you, with
5
respect to a number of issues.
One of them is whether
6 or not we should agree to any continuances on a
7
hearing.
A hearing is required, unless we agree
8 otherwise, by October the 19th. And it appears that,
9 at least from the standpoint of availability, we don't
10
have a problem.
However, just based on the number of
11 matters that we're looking at, that the -- workload of
12 the staff, and the potential need for hiring outside
13 counsel, which I'll discuss with you in a second, it
14 might be prudent to agree to continuances.
15 And to give you a couple of the considerations,
16 one is, whether, do we have the time and the manpower
17
to gear up for the tier challenge.
If we don't get the
18 density bonus, it will affect the projects that we've
19
got in the -- in the pipeline.
There is several
20
projects that are in the pipeline.
The developers have
21 indicated to us that unless that density bonus
22 allocation is approved, they're not going to be able to
23 do a development it it's economically feasible. And
24 so, those projects, like the Bogio (Ph.), the Carlisle
25
Group projects, would not be forthcoming as planed.
So
All Keys Reporting - Court Reporters - (305) 289-1201
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5
1 that would be the downside of allowing any
2 continuances.
3
Secondly, I think that from the governor's
4 position, he wants to see things moved through quickly
5
because we've got a lot of issues to deal with.
So,
6 that's -- that's a very big concern.
7
MAYOR MCCOY:
Special counselor, I presume you
8 have some input here?
9
MS. HUTTON:
Go ahead.
10
MR. COLEMAN:
I do, but do you have some more?
11
MS. HUTTON:
I have a couple of other issues,
12 but we can go ahead and deal with this one first.
13
MAYOR MCCOY:
Yeah.
And there is a couple of
14
other implications too.
We have the challenge to the
15 tier ordinances, which is a big, big trial, which we're
16
hand in hand with the DCA on that.
And that's in
17 September; right?
18
MS. HUTTON:
Uh-huh.
19
MR. COLEMAN:
Going forward in September.
So
20 in preparing for that, we are in an awkward position of
21
having to challenge the DCA.
And in all of our
22 collective memory, in going around, none of us can
23 remember a jurisdiction saying, hey, we're going to
24 appeal our legal rejection.
25
I will say that on the substance of this
All Keys Reporting - Court Reporters - (305) 289-1201
Locations in Key Largo, Marathon & Key West
6
1 ordinance, and so that everybody is clear on the nature
2 of it, there is no confusion here with this commission,
3
we have a very good challenge here.
This ordinance
4
does not make half fractional ROGOs.
That's coming
5
before you later on.
This is only a density bonus
6 ordinance that -- so if we give a density bonus for a
7 small unit, we still have to use a whole ROGO.
8
And it's my belief that what happened is that
9
DCA was in the middle of a change.
Rebecca was
10
leaving.
Now Richard Jordan is gone, the counsel.
11 They did not even have, at that time, an assigned
12
critical state concern person.
Tracy, who has been
13
working very, very hard.
We know Tracy Suber (Ph.),
14 who we know, did not come from a planning background.
15 Our 750 that we had in that ordinance, which we can
16 change, again, that's a different concept from the half
17
ROGO allocation.
Marathon had set up, at the same
18 time, a true path ROGO, and you know, 750 square less.
19
And they rejected Marathon's half ROGO.
But then they
20 saw our density bonus, and I believe they were confused
21
and didn't realize.
But when we go to our comp plan,
22 which is why they're denying it, we have specific
23
points.
It's in your packet.
It's quoted.
I mean,
24 they're -- they denied this because we were
25
inconsistent with our comp plan.
They're -- they're
All Keys Reporting - Court Reporters - (305) 289-1201
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7
1
dead wrong.
Our camp plan says right in it, for
2 affordable housing, consider and put into place
3
incentives, such as, density bonuses.
So we're in good
4 stead.
5
Now, to the issue of deferring.
We do want to
6
get it moved along.
And I think it would be -- well,
7
early October we would have a hearing.
And I think we
8
only anticipate County attorney, staff, two days.
This
9 was talking to the jury.
10
At the hearing itself, yeah.
MS. HOTTON:
11
Yeah.
Two days.
It will
MR. COLEMAN:
Yeah.
12 take some preparation, but I think we just have a
13 couple land use experts, including our own -- our own
14 people. Just go in, talk about what this ordinance
15 does. That the evidentiary record is going to be
16
It would be a hearing in Tallahassee.
fairly slim.
17 And it would take a day or two. And we go before the
18 judge, and we would get a ruling on it.
19 There is -- the DCA was clearly caught by
20 surprise, that one of these local jurisdictions would
21 get up and say, well, we're going to challenge your
22
is that not your
rejection of our ordinance.
And
23 impression? They were just like
24
MS. HOTTON:
Yes.
25
MR. COLEMAN:
And, fortunately, it's one that
All Keys Reporting - Court Reporters - (305) 289-1201
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8
1
we could win on.
But we have a complication in it.
2 And that the County attorney will talk about an issue
3
was raised.
When you approved the challenge, a month
4 ago, two months ago, maybe last month; right?
5
MS. HUTTON: Uh-huh.
6
MR. COLEMAN: We didn't really know -- we
7 weren't really thinking about raising this statutory
8
section under County powers.
125.01 --
9
MS. HUTTON:
55.
It's 125055.
10
MR. COLEMAN:
Okay.
It is a freestanding
11 statutory provision that says, notwithstanding any
12 other provision of law, a County can pass an ordinance
13 about -- that seems to increase affordable housing.
14
That's just what it says.
There is no case law under
15
it.
And so the question would be, does that include
16 critical state concern review? Does that include all
17 of the other kinds of law? So there is a point to be
18 made that we could pass an affordable housing ordinance
19
and we don't need to submit it to DCA.
Okay.
We're
20 not sure that this is the right place to have raised
21 that question.
22
MS. HUTTON: It -- it has been raised.
23
MR. COLEMAN: It has been raised.
24
MS. HUTTON:
In the challenge, it was raised.
25 It would not be a bad idea to get an administrative law
All Keys Reporting - Court Reporters - (305) 289-1201
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9
1 judge's read on what that statute means, vis-a-vis, an
2
area of critical state concern.
So we're not
you
3 know, we don't actually regret having brought it up.
4 But we're not particularly inclined, at this point in
5 time, in our office, to pursue going forward and
6 passing ordinances for affordable housing and acting as
7 if we have no -- no recording duties, or oversight from
8
DCA.
We recognize that if we thumb our noses at them
9 too much, and we're already doing that in this
10 challenge, that will affect our -- or may affect our
11 relationship with all of the partnership activities
12
that we're involved in.
So, those are considerations
13 that we also have to take.
14
So --
15
COMMISSIONER NEUGENT:
At what point in time do
16 we weigh in on this, with questions? Do we --
17
MS. HUTTON:
You can -- you can start now
18 because, basically, the only other issue I wanted to
19 bring up is that we could try to mediate this issue and
20 the -- and the impact 125055 has on what we do with
21
with DCA.
But we definitely -- I mean, my
22 recommendation is that we go forward as quickly as we
23
can.
But, whatever questions or comments you have, I
24 would like to hear them.
25
MAYOR MCCOY:
We're going to listen to
All Keys Reporting - Court Reporters - (305) 289-1201
Locations in Key Largo, Marathon & Key West
10
1
everybody.
So I understand right, you probably think
2 this is a need for clarification and nothing of
3 substance in nature?
4
MS. HUTTON: That's right.
5
MAYOR MCCOY: That's your interpretation.
6
MS. HUTTON:
But what I want from you right now
7
is
is, you know, how do we proceed with this.
8
MAYOR MCCOY:
Commissioner Neugent.
9
COMMISSIONER NEUGENT:
I've got some concerns
10 here. Some of it stems from different discussions with
11 DCA, that is contrary to the interpretation of what I'm
12
hearing here.
And -- and I also know how the State
13 will talk to somebody and tell someone something and
14 someone else will get a different message, or a
15 different interpretation of what that person said.
16 Notwithstanding the amount of money we're spending on
17 moving these projects forward, and now they're getting
18 challenged. And these, even though we're talking about
19 density bonus right now, are not being done within a
20 vacuum, and there are a lot of other things that we're
21 going to be sending to DCA that I'm absolutely
22 convinced will be challenged also.
23 One of the things that concerns me, and please
24 correct me if I'm wrong here, but this is not getting
25 the typical staff review, before it comes to us with
All Keys Reporting - Court Reporters - (305) 289-1201
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11
1 staff recommendations, or staff opinions on these LDR
2 changes that we're sending to DCA.
3
MS. HUTTON:
I don't think that's true.
My
4 understanding is that all of these -- these LDRs that
5 have been placed before you, have gone through the
6
planning process.
They've gone before the Planning
7
Commission.
It's not until they've gone through that
8 process -- I may be wrong, but that was my
9 understanding that even though they may have generated
10 with the workforce housing, they are still going
11
It may be fast tracked, but I
through that process.
12 believe they are going through the same process.
13
They are.
And they're
MR. COLEMAN:
14 advertising DRC.
15
Well, I can only say
COMMISSIONER NEUGENT:
16 this, and this is my interpretation of what I got out
17 of conversations from my new growth management
18 director, that he seems to think that there are a lot
19 of LDRs that are corning before the BOCC for approval,
20 without staff recommendation, and staff interpretation
21 of what the consequences and or unintended consequences
22
Now, to what degree he
he meant by that, and
are.
23
I'm just sharing information.
I'm not trying to --
24
Right.
And you should know. And
MR. COLEMAN:
25 what we have, Commissioner is, Ty is doing a good job,
All Keys Reporting - Court Reporters - (305) 289-1201
Locations in Key Largo, Marathon & Key West
12
1 and has a big job, and we will talk later about Ty's
2
COMMISSIONER NEUGENT:
I know.
And some of the
3 ordinances that we passed, clearly reflect that staff
4
is not supposed to slow this process down.
That it is
5
fast tracked, and all of that.
And we did that back
6 before we have our present growth manager director.
7
MS. HUTTON:
Director.
Uh-huh.
8
COMMISSIONER NEUGENT:
And I am very pleased
9 with Ty's sitting down and trying to make things work.
10 I don't think anybody can accuse Ty of trying to be an
11 obstructionist, as far as trying to make things work.
12
13
However, if -- if -- for me, they are the
professionals in this.
We've got a group of
14 well-intended, good people, hard working folks working
15
on a task force.
However -- but, as you alluded to
16 saying that even Valerie or Tracy Suber doesn't have a
17
background in planning.
Very few people that we have
18 on that task force have a professional background in
19
planning.
And these -- these litigation costs, and
20 then in conjunction with some the things that are
21 coming before us, one being, exceeding the 35-foot
22
23
24
height limit.
I can assure you, that's going to be
lit
it's going to be challenged at the DCA level,
and it's going to be litigated.
You can bet, whatever
25 you want to bet on that. And -- and do we continue?
All Keys Reporting - Court Reporters - (305) 289-1201
Locations in Key Largo, Marathon & Key West
13
1 And I say this out of concern, not out of attempting to
2 stop what we're doing, because I think what we're doing
3
is addressing some issues.
But I think that we --
4
we -- we might need to recognize this.
And litigation
5
cost is something that is very concerning to me.
It
6 ranks up there right behind wind/storm insurance and
7 workforce housing.
8
MS. HUTTON:
Well, I agree with you about the
9 litigation costs, that we have spent and we are looking
10 at spending, because we're in the area of critical
11 state concern, and we have a lot of takings issues that
12 we're facing. We're looking at a lot of litigation
13
costs.
And to the extent that we can elimin -- you
14 know, reduce those, I'm all for that.
15
What I will tell you about the question that
16
you posed about the staff review.
I'm only aware of
17 two ordinances that have been put forward in the last
18 couple of months, that the division director is not
19 satisfied with the time that his staff has had to
20 review them. But this is not one of them. It may be
21 that's true, he may have voiced that to you, I don't
22
know.
But, I'm not aware that this particular
23 ordinance that we're in challenge on, and that we're
24 discussing today, is one of those that he felt
25 uncomfortable with.
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1
COMMISSIONER NEUGENT:
In closing, where is Ken
2 Metcalf? Where -- where -- are we going to send this
3 to Tallahassee, without any support and justification?
4
I clearly see this as flying in the face.
And this is
5 why Marathon was denied its fractional ROGO, that they
6 sent no support in justification, i. e., in reference to
7 hurricane evacuation, along with their proposal.
8 And -- and arguments can and will be made that this is
9 in conflict with our comprehensive plan.
10
And that gets us back to the issue
MS. HUTTON:
11
I started with.
We do have Mr. Metcalf on board.
If
12 for any reason he is not able to put the modeling, the
13 excavation modeling together in a timely manner, for
14 the presentation for the late September, early October
15 hearing, we may very well need a continuance,
16 notwithstanding the fact that we're also looking at the
17 issue of, if we don't resolve this before January 1st,
18 we're going to lose some affordable housing projects.
19
Commissioner Spehar.
MAYOR MCCOY:
20
Clarification, please.
COMMISSIONER SPEHAR:
21
We do need the density bonus allocation.
Is -- is this
22 boiling down to Marathon being rejected with the 750
23 square foot, or a half bonus -- I mean, a half ROGO
24
MR. COLEMAN:
Commissioner, again, I do not
25 believe that there is a basis for whatever the DCA says
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1 about needing justification and analysis and data on
2
this ordinance.
This -- you need data and analysis to
3
change your comprehensive plan.
You do not have to
4 submit data and analysis to adopt a Land Development
5 Regulation, based on an adopted policy in the
6 comprehensive plan.
7
Our -- in your
in the petition, we have
8 already provided the data and analysis because those
9 are approved policies that you're putting into place.
10
Okay.
But --
COMMISSIONER SPEHAR:
11
But that is --
MR. COLEMAN:
12
But, if it comes down to
COMMISSIONER SPEHAR:
13 that, my personal feeling, for a half ROGO point, I
14 think 600, 650 is adequate because you shouldn't have
15
And it's my understanding that
more than one bedroom.
16
means one car and a half, at the most.
It's my
17 understanding that DCA's feeling was 750 allows two
18
That means, you know, two cars -- three
bedrooms.
19 cars, actually, because it's one and a half car per
20
bedroom.
If that is it, even though we don't have to,
21 if we go back and agree to have a lesser square
22 footage, because it was my understanding that DCA would
23 support 600, 650, at maximum.
24 And I know that certain residents that have
25 come to my office have clearly stated that they would
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1 not fight with us if we had that lowered.
2
MR. COLEMAN:
Well, are you -- Mayor Pro Tern, I
3 think that -- and Suzanne, in a medication type
4 setting, on the density bonus, coming down to 650, if
5 that's the feeling of the commission, because when you
6 still have your half ROGO coming forward, and we bring
7
the true half ROGO down to 650.
And there we will have
8 to supply, Commissioner, the data and analysis, you
9 know, because we may want to comp plan on the half, on
10 the true half unit.
11
But if -- if we are in a position and I feel
12 that the consensus here is that we're looking at 650
13 max, with one bedroom max unit, we should make our two
14
ordinances consistent.
The half ROGO comes down to 650
15
and the density bonus here comes down to 650.
And that
16 would give us, Suzanne, some negotiating point with the
17
DCA.
That we say, listen, we'll put this on, while
18
we're bringing this other forward.
And we'll
and we
19 would have that latitude to come down to 650, on the
20
ordinance that you've already adopted at 750.
Which
21 would mean maybe a readoption or something, and maybe
22 an agreed fast track or something on that, or a
23 settlement.
24
COMMISSIONER NEUGENT:
Jerry.
25
MR. COLEMAN:
Yes.
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1
COMMISSIONER NEUGENT:
For me, again, we get
2 we get back to hurricane evacuation.
3
MR. COLEMAN:
Uh-huh.
4 COMMISSIONER NEUGENT: We have excluded from
5 the model, mobile home parks, and tourists.
6
MR. COLEMAN:
Uh-huh.
7
COMMISSIONER NEUGENT:
As we convert these
8 mobile home parks into permanent structures, how is
9 that then going to affect the hurricane evacuation
10 model that we manipulated to allow for increased
11 density? And each one of these things that we're
12 doing, and no one is going to convince me, whether it's
13 650 square feet, or 750 square feet, that that's not
14
going to increase density in Monroe County.
And -- and
15 again, I'm just pointing out, that if we're going to
16 make an argument, we're increasing density and we're
17 going up and running into hurricane evacuation models
18 that are going to be, in my opinion, the deciding
19 factor of whether, until that's done away with, the
20 deciding factor as to whether we're going to win this
21 or not.
22
MR. COLEMAN:
Commissioner Neugent, I went up,
23 yesterday, to the South Florida Planning Counsel
24 because they had a technical advisory team meeting, on
25
the update of the model.
Okay.
Which we will restate.
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1 DCA talked about, and all of this is hinging on, we
2
have given it to Ken Metcalf.
And we may have some,
3 maybe some unhappy news, coming in the -- in the update
4
of the model.
And
and I think we're going to have
5
to wait for this next month, and see what happens.
But
6 the first run of that model, and also Irene Commodore
7
was there.
So was the planner, Gayle Kenson,
Okay.
8 from the City of Marathon.
9
COMMISSIONER NEUGENT:
Key West.
10
MR. COLEMAN:
For --
11
COMMISSIONER NEUGENT:
Key West.
12
Yeah, right.
Key West.
MR. COLEMAN:
13
You need to update
COMMISSIONER NEUGENT:
14 your --
15
Yeah, I need to update my list
MR. COLEMAN:
16
And there was a Marathon representative, and a
there.
17
Layton representative.
But I went up for Administrator
18 Willi, the initial runs on this model, which throws in
19 backup traffic and jams, in a regional, worse case
20 scenario evacuation of Broward, Miami-Dade, and Monroe
21
And my initial look at it was like,
Counties; okay.
22 well, we might be in for a real shock because we need
23
to start knocking down buildings down here.
So
Okay.
24 I totally understand your -- your -- and we're going
25 to, I think, find out a little bit where the DCA is on
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1 that because they commissioned this study, for the
2
South Florida Regional Planning Council should do.
The
3 report is due out within 30 days.
4 The initial runs from Monroe County caused half
5 a meeting, with this technical advisory group, with
6
just on what the effect is.
We're arguing about, what
7 happens if Card Sound Road, what happens when we get on
8
the Turnpike.
I mean, it ran the numbers up to like,
9 36 hours.
10
Okay.
So I don't -- and there is a question,
11
when you take the trailers
you convert a trailer.
12
Right now a trailer counts as zero evacuation time.
I
13
couldn't get them, they send them out.
If we turn the
14 trailer into an affordable permanent unit, you may be
15 working backwards on the model.
16
Commissioner Patton.
MAYOR MCCOY:
17
Yeah, I think that, I
COMMISSIONER PATTON:
18 agree with Dixie, the 650 square footage, half cap
19
ROGO, and the one and a half cars is a good model.
And
20
And I think we can do everything
DCA may accept that.
21
we can to mitigate -- mediate that.
Notwithstanding
22 the hurricane evacuation model may change and we may
23 never be able to use them, okay; I think that's a
24
different story.
But as soon as we can -- we mediate
25 this as quickly as possible, and get it out of the way.
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1 I would like to put some efforts into that.
2
MAYOR MCCOY:
Commissioner Spehar.
3
COMMISSIONER PATTON:
I'm not sure how that
4
will
a mediation process works, but it's kind of
5 like settling out of court.
6
MS. HUTTON:
Right.
If we can.
Yes, that's
7 exactly what it is.
8
MAYOR MCCOY:
Commissioner Spehar.
9
COMMISSIONER SPEHAR:
Mr. Coleman, we're
10 talking about converting a trailer into a condo unit,
11 but are they taking into consideration that people that
12 are buying those condos are not year-round residents.
13
They're here two weeks out of the year.
They have to
14 address that.
15
MR. COLEMAN:
They're
16
COMMISSIONER SPEHAR:
They're -- that is an
17 absolute given because those condos are selling for a
18
million dollars.
And also, there is something that
19 absolutely irritates me beyond belief, is the
20
affordable housing.
The attempts that we're making is
21
not for growth, it is sustaining our workforce.
We are
22 not bringing new people into this county. We are
23 trying to keep our workforce that is here. And they're
24 looking at it as growth.
25
MR. COLEMAN:
All right.
They -- they,
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1 specifically, have said and rejected anecdotal evidence
2 from Monroe County that we have a seasonal based, you
3 know, folks living in our homes in the summer, because
4 we have not backed it up with evidence of that trend.
5
We would need to back up that trend.
It is not
6
reflected in the model.
The replacement that all of
7 these shutter houses, they are considered occupied
8 right now, in the model.
9
Is there any way though
COMMISSIONER SPEHAR:
10 that we can give them evidence that the unit that's
11 being built, is for the person that has lived here for
12 x amount of years, so that it shows that it's not
13 growth?
14
It seems to me that we probably
MS. HUTTON:
15 could because we're talking about, I mean, we have
16
already entered into 380 agreements with them.
And
17 we've got lease back -- you know, we've got a purchase
18
lease back situation.
So, it seems to me that all of
19 those things could be discussed during the mediation
20 to, you know, I mean, and certainly it would be brought
21 up if we end up in an actual hearing with an
22 administrative law judge.
23
COMMISSIONER SPEHAR:
And --
24
MAYOR MCCOY:
Commissioner Spehar.
25
COMMISSIONER SPEHAR:
And then there is the
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1
final thing.
Remember, in the conversion that we have
2 done, especially with mobile parks, when the ROGO area
3 of critical concern first started, and we started the
4 fact finding for the hurricane evacuation, the amount
5 of units, at that time, were counted as the evidence
6
for our evacuation.
In our reconstruction of our
7 mobile parks, we have where they traditionally had 100
8 units on that lot, we are only allowing 75 units on
9
So we have decreased, actually.
We have got
that lot.
10 25 floating out there, that were counted as part of the
11 evacuation, that are not allowed to be used today.
12
Well, very interesting is that
MR. COLEMAN:
13 the baseline that's being used right now, the 2000
14 census data, they've refused -- it's not refused the
15 dats, they will not use the updated data that we know
16 from the population lost over the last five years,
17 because they wanted it in block, our block data, which
18 is only done every 10 years.
19
So, I mean, we -- anyway, we did.
There are a
20
lot of technical issues that we have to deal with.
But
21 my understanding is -- is, from you, and Suzanne,
22 correct me if I'm wrong, that we are to proceed ahead,
23 try to mediate, if possible, but don't be afraid to go
24
ahead and litigate.
We have a compromised position of
25
650 square feet, if they will accept that.
And we can
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1 also re-tailor that ordinance and don't bring the half
2 ordinance up, you would have a higher than 650.
3 And then also -- but I would ask, on the 1.5,
4 you know, right now our Land Development Regulations
5 require 1.5 cars for not just affordable, I mean, for
6 multifamily housing, the biggest condos in the world,
7
we -- okay, we allow 1.5.
It seems to me --
8
Heard that.
COMMISSIONER NEUGENT:
9
Now, 1.5
MR. COLEMAN:
10
Per unit.
COMMISSIONER PATTON:
11
Per unit.
So I can have a
MR. COLEMAN:
12
3,000-square foot condo and I have to build 1.5.
We
13 only do it by multiunit; okay, or single family is two.
14
Multiunit, 1.5 for that development.
And this is
15
I think for the small unit, you should
market rate.
16 give us the latitude for the small unit, but a half
17 unit for one, not 1.5.
18
MAYOR MCCOY:
Okay.
I'm looking for -- I'm
19 looking for direction from the commission and we'll get
20 a nod to see if that's in agreement.
21
COMMISSIONER SPEHAR:
Well, I think what you
22
just said is what we need to be going for.
The 1 --
23
MS. HUTTON:
Mediation and --
24
COMMISSIONER SPEHAR:
Right.
25
MS. HUTTON:
And continue on with litigation,
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1 if need be.
2
COMMISSIONER SPEHAR:
Right.
3
MS. HUTTON: If--
4
MAYOR MCCOY: Any -- any objections to that?
5 Any others --
6
COMMISSIONER NEUGENT:
No.
I would comment
7
that I think we're barking up the wrong tree.
I'm
8 aware every other county and every other municipality,
9 I know is trying to protect their community character.
10 And -- and I know we've got issues here with affordable
11
housing.
To start off with, 1.5 parking places per
12 household, I think that most people would recognize is
13 inadequate. Anything less than that is terribly
14 inadequate. And we're only doing things that are going
15 to -- the chickens will come home to roost, at some
16 point in time, and we will have that as our legacy as
17 allowing that kind of density to take place.
18
MAYOR MCCOY:
Commissioner Spehar.
19
COMMISSIONER SPEHAR:
The debate for that
20 statement, in my opinion, Commissioner Neugent, is that
21 affordable housing, we are building, is very close to
22
the public transportation.
It's low income people that
23 do not have a car, use public transportation, bicycles,
24
and so on.
But, we're talking about affordable housing
25 here, and they're lucky to have a car.
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1
COMMISSIONER NEUGENT:
Well, it's a point well
2 taken, Commissioner Spehar, that we do now have public
3
transportation and that's a good thing.
And that's a
4
good argument.
However, I think we need to be very
5 careful about some of the things that we do, and the
6 consequences that will come from them, and especially
7 the unintended consequences that we haven't researched
8 and looked into.
9
MAYOR MCCOY:
Commissioner Patton, do you have
10 a shot?
11
COMMISSIONER PATTON:
Yeah.
I agree with Dixie
12 on the units, parking units per unit, especially in
13
Stock Island, Lower Keys.
One -- the character is
14
different down there.
And one would -- you know, based
15 upon the character in the community in Key West, it's
16 very difficult to get 1.5 in an affordable housing
17
setting.
In Key Largo you may need 1.5.
18
MAYOR MCCOY:
Well, you haven't seen
19 Commissioner Spehar's little half car, have you?
20 That's what she got.
21
COMMISSIONER PATTON:
But that's -- you know, I
22 think it would be very appropriate and I agree with
23 Dixie on that point.
24
COMMISSIONER SPEHAR:
Thank you.
25
MAYOR MCCOY:
Commissioner Neugent, how
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1 strongly do you feel about, at this point, your
2 objection?
3
I -- I feel very strong
COMMISSIONER NEUGENT:
4
about my point.
I did an informal poll in my
5 neighborhood, which is a rather modest, humble
6
subdivision.
And I would say, based upon my count, you
7 had about two and a half cars, three cars per
8
household, including boats.
I mean, people don't come
9
here without owning a boat.
And we don't have places
10
to put them.
So, I feel strongly about it, but I feel
11 like, let's go forward.
12
Let's go forward.
Okay.
And
MAYOR MCCOY:
13 when we're talking about -- when we're talking about, I
14 mean, we're talking about one and a half; right? Get
15
some kind of -- (Brief interruption.)
Yes, Dear.
16 Somebody else objected to it.
17
MR. COLEMAN:
One point, if you have land to
18 use it for housing, you use it for parking, but if you
19 provide three parking places per unit, they'll use
20
them.
I mean, you know that they'll use everyone.
21 You're subsidizing automobiles then.
22
MAYOR MCCOY:
One last parting shot.
23
COMMISSIONER SPEHAR:
One thing too, especially
24 in the Lower Keys, especially in Stock Island, in our
25
CommuniKeys.
Instead of having the parking unit
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1 attached to the house, having a community parking lot,
2 enables one to, you know, where one doesn't have one,
3
can use the other one's space.
But, we also need to be
4 looking at community parking lot, not driveway to each
5 unit.
6
MAYOR MCCOY:
Okay.
Ms. Hutton, I think you
7 have your direction.
8
MS. HUTTON:
Yes, I do.
9
MAYOR MCCOY: Okay.
10
MR. COLEMAN: Thank you.
11
MAYOR MCCOY: We would like to conclude.
12
MS. HUTTON: You mean terminate the public
13 meeting and reconvene the --
14
Did you say though that
COMMISSIONER SPEHAR:
15 you have something else that you needed to mention?
16
I think we cut -- the one
MS. HUTTON:
No.
17 other thing I do want to bring up is that if for any
18 reason we end up having to litigate this, and we don't
19 have the staff time to prepare, we -- we are in the
20 middle of preparing a contract with David Jordan, who
21
has left DCA, to be on standby as legal counsel.
And
22 we might very well want to bring him in. And I would
23 like a nod of approval that if necessary, if we deem
24 that necessary, that we go forward?
25
Oh, I strongly support
COMMISSIONER SPEHAR:
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1 that.
2
MAYOR MCCOY:
George?
3
COMMISSIONER NEUGENT:
Yes.
4
MAYOR MCCOY:
Do you have a feeling on it?
5
COMMISSIONER NEUGENT:
I'm fine with that.
6
MS. HUTTON: Thank you.
7
MAYOR MCCOY: I guess you got your nod.
8
MR. COLEMAN: I'd like to make one more
9
suggestion for Suzanne.
Rebecca Tuton is now outside
10
the DCA.
And she wrote the internal reports on these
11 ordinances that, to our understanding, we have found
12
out, differ from the final order that came out.
And
13 that, again, as an expert witness, she's in
14 Tallahassee, you wouldn't have your travel time, if
15
that's where the hearing is.
She would be a perfect
16 witness because she wrote the reports.
17
MS. HUTTON: Thank you.
18
MAYOR MCCOY: I think you have that latitude.
19 I don't think you need any further information.
20
Thank you.
I'm fine.
MS. HUTTON:
21
I would go ahead and close.
MAYOR MCCOY:
22
We're going to conclude this.
We're going to adjourn.
23 We're going to end this.
24
We're terminating the closed
MS. HUTTON:
25 session.
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for.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MAYOR MCCOY:
29
That was the word I was looking
Thank you very much.
MS. HUTTON:
Thank you.
(The meeting was adjourned 9:11 a.m.)
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1 CERTIFICATE
2 STATE OF FLORIDA,
3 COUNTY OF MONROE
4 I, patricia A. Zischka, certify that I was
authorized to and did stenographically report the foregoing
5 proceedings and the transcript is a true record.
6
Dated this 21st day of August, 2006.
n tJ.
--1(,....J' ;r'"l, l1.,tA~_ ,~,;)
__li~_______~~~_L___~_~~______
7
Patricia A. Zischka
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