DCA Final Order No.: DCA06-OR-311
STATE OF
DEPARTMENT OF COMMUNITY AFFAIRS
In Re:
DEVELOPMENT REGULATIONS
ADOPTED BY ORDINANCE NO. 036-2006
____________________________________________/
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. (2006), 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
2. On October 31, 2006, the Department received for review Monroe County Ordinance No. 036-2006, adopted by
3. The purpose of this Ordinance is to amend Chapter 9.5 of the Land Development Regulations as follows: to clarify the definitions of “Accessory Uses” or “Accessory Structures” and “Adjacent Landowner” in Section 9.5-4; to amend Section 9.5-256 “Aggregation of Development,” to create conditions for aggregation of lands; to amend Section 9.5-349 “Shoreline Setbacks,” to permit docking facilities on lands within 500 feet of land containing the principal structure under certain conditions; and to create an approval process for such requests.
4. The Department has reviewed the Ordinance for consistency with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern and the Monroe County 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 The Department is required to approve or reject land development regulations that are enacted, amended, or rescinded by any local government in the Florida Keys Area of Critical State Concern. § 380.05(6),
6.
7. “Land development regulations” include local zoning, subdivision, building, and other regulations controlling the development of land. § 380.031(8),
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 All land development regulations enacted, amended, or rescinded within an area of critical state concern must be consistent with the Principles for Guiding Development (the “Principles”) as set forth in section 380.0552(7),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. Additionally, section 163.3194(1)(b), Florida Statutes (F.S.), requires that all land development regulations must be consistent with the local government’s adopted comprehensive plan.
10. Ordinance No. 036-2006, which allows docking facilities to be permitted on lots/parcels within 500 feet in a straight line of the principal structure and on Tier 1 designated lands, is not consistent with the following Principles:
Principle (b): To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat.
Principle (c): To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat.
11. Ordinance No. 036-2006 is neutral in effect on the remaining Principles.
12. Ordinance No. 036-2006 is inconsistent with the following provisions of the Monroe County 2010 Comprehensive Plan that discourage development in Tier 1 properties, encourage clustering to avoid impacts on sensitive habitats, and provide for preservation of open space in a contiguous, non-fragmented condition:
Policy 205.2.2
Policy 102.1.1
The County shall protect submerged lands and wetlands. The open space requirement shall be one hundred (100) percent of the following types of wetlands:
1. submerged lands 2. mangroves 3. salt ponds 4. fresh water wetlands
5. fresh water ponds 6. undisturbed salt marsh and buttonwood wetlands
Allocated density (dwelling units per acre) shall be assigned to freshwater wetlands and undisturbed salt marsh and buttonwood wetlands only for use as transferable development rights away from these habitats. Submerged lands, salt ponds, freshwater ponds, and mangroves shall not be assigned any density or intensity.
Policy 102.3.2
1. when a parcel proposed for development contains more than one (1) habitat type, all development shall be clustered on the least sensitive portion(s) of the parcel: and
2. development permitted on the least sensitive portion(s) of a parcel shall be clustered within that portion(s) of the parcel.
Policy 102.9.1
Policy 105.2.1
1. Natural Area (Tier I): Any defined geographic area where all or a significant portion of the land area is characterized as environmentally sensitive by the policies of this Plan and applicable habitat conservation plan, is to be designated as a Natural Area. New development on vacant land is to be severely restricted and privately owned vacant lands are to be acquired or development rights retired for resource conservation and passive recreation purposes. However, this does not preclude provisions of infrastructure for existing development. Within the Natural Area designation are typically found lands within the acquisition boundaries of federal and state resource conservation and park areas, including isolated platted subdivisions; and privately-owned vacant lands with sensitive environmental features outside these acquisition areas.
13. Ordinance No. 036-2006 is inconsistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern and
WHEREFORE, IT IS ORDERED that Ordinance No. 036-2006 is found to be inconsistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is found to be inconsistent with the Monroe County 2010 Comprehensive Plan, and is hereby REJECTED.
DONE AND ORDERED in
_______________________________
Tracy D. Suber
State Planning Administrator
Division of Community Planning
Department of Community Affairs
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 BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND YOU WILL HAVE THE
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,
THE PETITION MUST MEET THE FILING REQUIREMENTS IN SUBSECTION 28-106.104(2),
A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY RULE 28-106.402,
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.
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 correct copies have been furnished to the persons listed below by the method indicated this 29th day of December, 2006.
____________________________
Paula Ford, Agency Clerk
By
Honorable Mario DiGennaro
Mayor of
Danny L. Kolhage
Clerk to the Board of
Aref Joulani
Director
Planning and Environmental Resources
2798 Overseas Highway,