Final Order No.: DCA 08-OR-213
In re: LAND DEVELOPMENT
REGULATIONS ADOPTED BY
CITY OF KEY WEST
ORDINANCE NO. 08-05
____________________________________________/
FINAL ORDER
The Department of Community Affairs (the “Department”) hereby issues its Final Order, pursuant to Section 380.05(6) and (11), Florida Statutes, (2007), approving a land development regulation adopted by a local government within the City of Key West Area of Critical State Concern as set forth below.
FINDINGS OF FACT
1. The City of Key West is a designated area of critical state concern.
2. On June 23, 2008 the Department received for review City of Key West Ordinance No. 08-05, which was adopted by the City of Key West City Commission on May 20, 2008, (“Ord. 08-05”). The purpose of Ord. 08-05 is to amend: Chapter 6 “Amusements and Entertainment;” Chapter 18 “Businesses,” Sections 18-28 and 18-60; Chapter 30 “Fire Prevention and Protection,” Section 30-9; Chapter 54 “Planning and Development,” Sections 54-82, 54-124, and 54-160; and provide for the review and determination of certain appeals and variance requests to be administered by the City Commission.
3. Ord. 08-05 is consistent with the City’s Comprehensive Plan.
CONCLUSIONS OF LAW
4. The Department is required to approve or reject land development regulations that are adopted by any local government in an area of critical state concern based upon consistency with the Principles for Guiding Development applicable to that area of critical state concern. Section 380.05(6) and 380.05(11), Florida Statutes, (2007).
5. The City of Key West is an Area of Critical State Concern. Section 380.05, Florida Statutes (2007) and Rule 28-36.001, Fla. Admin. Code.
6. “Land development regulations” include local zoning, subdivision, building, and other regulations controlling the development of land. Section 380.031(8), Florida Statutes (2007). The regulations adopted by Ord. 08-05 are land development regulations.
7. All land development regulations enacted, amended, or rescinded within an area of critical state concern must be consistent with the principles for guiding development for the particular area (the “Principles”). Section 380.05(6), Florida Statutes; 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 for the City of Key West Area of Critical State Concern are set forth in subsection 28-36.003(1), Florida Administration Code.
8. Ord. 08-05 promotes and furthers the following Principles in subsection 28-36.003(1), F.A.C.:
(a) To strengthen local government capabilities for managing land use and development.
(h) To protect the public health, safety, welfare and economy of the City of Key West, and the maintenance of Key West as a unique Florida resource.
10. Ord. 08-05 is not inconsistent with the remaining Principles. Ord. 08-05 is consistent with the Principles for Guiding Development as a whole.
WHEREFORE, IT IS ORDERED that Ord. 08-05 is found to be consistent with the Principles for Guiding Development of the City of Key West Area of Critical State Concern, and is hereby APPROVED.
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.
/s/_____________________________
CHARLES GAUTHIER, AICP
Director, 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 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 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 SUBSECTION 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 SUBSECTION 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.
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 July, 2008.
/s/_________________________
Paula Ford, Agency Clerk
By U.S. Mail:
The Honorable Morgan McPherson
Mayor, City of Key West
P. O. Box 1409
Key West, Florida 33041
Cheryl Smith
Clerk to the City Commission
P. O. Box 1409
Key West, Florida 33041
Amy Kimball-Murley, AICP
Planning Director
City of Key West
P. O. Box 1409
Key West, Florida 33041
Larry Erskine
City Attorney
P. O. Box 1409
Key West, FL 33041
By Hand Delivery or Interagency Mail:
Rebecca Jetton, ACSC Administrator, DCA Tallahassee
Richard E. Shine, Assistant General Counsel, DCA Tallahassee