DCA Final Order No.: DCA06-OR-157
STATE OF
DEPARTMENT OF COMMUNITY AFFAIRS
In re:
REGULATIONS ADOPTED BY
______________________________________/
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
2. On May 22, 2006, the Department received for review Monroe County Ordinance No. 015-2006 (“Ord. 015-2006”).
3. The final order for this Ordinance must be signed by July 20, 2006.
4. The purpose of the 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 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 The Department is required to approve or reject land development regulations that are enacted, amended, or rescinded by any local government in the Florida Keys Area of Critical State Concern.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),
7.
8. “Land development regulations” include local zoning, subdivision, building, and other regulations controlling the development of land. § 380.031(8),
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 All land development regulations enacted, amended, or rescinded within an area of critical state concern must be consistent with the Principles for Guiding Development (the “Principles”) as set forth in § 380.0552(7), Fla.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.
(l) To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the
11. Ord. 015-2006 is inconsistent with the Principles for Guiding Development as a whole.
12. Ordinance 015-2006 is inconsistent with the 2010 Monroe County Comprehensive Plan.
WHEREFORE, IT IS ORDERED that Ord. 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
_________________________________
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 ______, 2006.
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Paula Ford, Agency Clerk
By
Honorable Charles McCoy
Mayor of
Danny L. Kolhage
Clerk to the Board of
Aref Joulani
Acting Director
Planning and Environmental Resources
2798 Overseas Highway,