In re: MONROE COUNTY LAND
DEVELOPMENT REGULATIONS
ADOPTED BY MONROE COUNTY
ORDINANCE NO. 020-2008
_______________________________________________/
FINAL ORDER
The Department of Community Affairs (the “Department”) hereby issues its Final Order, pursuant to Section 380.05(6), Florida Statutes, and Section 380.0552(9), Florida Statutes (2007), 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 October 17, 2008, the Department received for review Monroe County (County) Ordinance No. 020-2008 (“Ord. 020-2008”), adopted by the County on September 17, 2008.
3. The purpose of the Ordinance is to amend Section 9.5-258 of the Monroe County Code to allow the provision of wastewater service and support utilities to developed properties located within the Coastal Barrier Resources System (CBRS) Overlay.
4. The Coastal Barrier Resources Act (CBRA) of 1982 established the CBRS to restrict the federally subsidized development of coastal barrier areas. See 16 U.S.C. 3504(a)(1).
5. On December 18, 2001, the Monroe County Board of County Commissioners adopted Ordinance No. 043-2001, creating Section 9.5-258 of the Monroe County Code which established the CBRS Overlay District, the purpose of which is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to or through lands designated as a unit of the CBRS.
6. On June 18, 2008, the Monroe County Board of County Commissioners directed the Growth Management Staff to amend the comprehensive plan and land development regulations to reword the prohibition on utilities such that the focus and priority be placed on wastewater first and any discussion of electric or any other utility, other than those required to efficiently support a central wastewater collection system, be deferred until the wastewater goal is accomplished.
7. Section 163.3202, Florida Statutes, however, requires that land development regulations contain specific and detailed provisions necessary to implement the adopted comprehensive plan which discourages the extension of facilities and utility services to CBRS units and prohibits public expenditures for new or expanded facilities in areas designated as units of the CBRS except for expenditures necessary for public health and safety. While the Comprehensive Plan does not prohibit the extension of facilities and services into CBRS units, Ordinance 020-2008 conflicts with the County’s policies discouraging both private and public investments in CBRS units.
8. A Comprehensive Plan amendment is necessary to resolve this conflict and clarify that the extension of facilities and services to specific areas in CBRS units, including No Name Key, designated as Hot Spots for central sewer may be necessary for water quality improvement as well as for financial feasibility and economies of scale in construction of regional wastewater plants.
9. The provision of central wastewater treatment and collection facilities through or to CBRS areas to developed properties may be one option to satisfy the treatment standard requirements of Section 6 of Chapter 99-395 Laws of Florida. However, sufficient data and analysis has not been provided to address the capital cost allocation issues associated with the provision of central wastewater treatment and collection systems, and where needed, the cost for the provision of electrical service to the CBRS units
10. Monroe County Staff has indicated that the County will be moving forward with a Comprehensive Plan amendment to address any conflicts with the Comprehensive Plan in the County’s first amendment cycle in 2009. Although the Department is encouraged by the County’s efforts to provide central sewer to No Name Key, since the current wastewater construction schedule does not anticipate completion of the new facility for several years, the County has an opportunity to provide an analysis of the magnitude of the additional public facility costs.
11. If the intent of the County is to provide wastewater only to No Name Key within the CBRS unit, the Department would recommend the County first adopt any necessary comprehensive plan amendments and subsequently revise Ordinance 020-2008 to target its application to No Name Key.
CONCLUSIONS OF LAW
12. 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. Section 380.05(6), Florida Statutes, and Section 380.0552(9), Florida Statutes (2007).
13. Monroe County is a local government within the Florida Keys Area of Critical State Concern. Section 380.0552, Florida Statutes (2007) and Rule 28-29.002 (superseding Chapter 27F-8), Florida Administrative Code.
14. “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. 020-2008 are land development regulations.
15. 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), 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 are construed as a whole and no specific provision is construed or applied in isolation from the other provisions.
16. Ord. 020-2008 fails to promote and further 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.
(b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat.
(h) To protect the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major public investments, including:
1. The Florida Keys Aqueduct and water supply facilities;
2. Sewage collection and disposal facilities;
3. Solid waste collection and disposal facilities;
4. Key West Naval Air Station and other military facilities;
5. Transportation facilities;
6. Federal parks, wildlife refuges, and marine sanctuaries;
7. State parks, recreation facilities, aquatic preserves, and other publicly owned properties;
8. City electric service and the Florida Keys Electric Co-op; and
9. Other utilities, as appropriate.
17. Ord. 020-2008 is inconsistent with the Principles for Guiding Development as a whole.
WHEREFORE, IT IS ORDERED that Ord. 020-2008 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.
_________________________________
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 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 12th day of December, 2008.
_______________________
Paula Ford, Agency Clerk
By U.S. Mail:
Honorable Mario DiGennaro
Mayor of Monroe County
Florida Keys Marathon Airport
9400 Overseas Highway, Suite 210
Key West, Florida 33050
Danny L. Kolhage
Clerk to the Board of County Commissioners
500 Whitehead Street
Key West, Florida 33040
Andrew Trivette
Growth Management Director
2798 Overseas Highway, Suite 400
Marathon, Florida 33050