In Re:     CITY OF MARATHON LAND

               DEVELOPMENT REGULATIONS

               ADOPTED BY ORDINANCE NO. 2008-26

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                                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 the City of Marathon is a local government within the Florida Keys Area.

2.     On October 30, 2008, the Department received for review City of Marathon Ordinance No. 2008-26 that was adopted by the City of Marathon Board of City Commissioners on September 23, 2008 (“Ord. 2008-26”). The purpose of Ord. 2008-26 is to amend Chapter 106 and Chapter 110 of the Land Development Regulations allowing for the distinction between riparian mangrove fringes and isolated mangrove communities on infill, landlocked lots; to allow the placement of fill into isolated mangrove communities and for shoreline development to preserve, to the maximum extent possible, riparian mangrove fringes.

3.     Ord. 2008-26 is inconsistent with the City’s 2010 Comprehensive Plan: Policy 4-1.3.1 Protect, Conserve and Enhance Coastal Resources, Wetlands, Water Resources, Living Marine Resources, Wildlife Habitats and Other Natural Resources and the Environmental Health of Florida Bay, the Atlantic Ocean and All Surface and Ground Waters; Policy 4-1.2.11 Limit Development Impacts on Wetlands; Policy 4-1.2.10 Regulate Development in Wetlands through KEYWEP; Policy 4-1.3.4 Restrict Development in Wetlands; Policy 4-1.4.6 Shoreline Vegetation Trimming or Removal; and Policy 4-1.5.3 Provide for Open Space.

4.     Ord. 2008-26 is inconsistent with the City’s Land Development Regulations: Table 106.16.1 Open Space Requirements by Habitat Type; Section 106.27 Jurisdiction and Delineation; and Section 106.29 General Approval Criteria.

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     The Department is required to approve or reject land development regulations that are enacted, amended or rescinded by any local government in the Florida Keys Area of Critical State Concern. Section 380.05(6), Florida Statutes, and Section 380.0552(9), Florida Statutes (2007).

6.     The City of Marathon is a local government within the Florida Keys Area of Critical State Concern. Section 380.0552, Florida Statutes (2007) and Rule 31-31.002 (superseding Chapter 27F-8), Florida Administrative Code.

7.     “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. 2008-26 are land development regulations.

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), 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.

9.     Ord. 2008-26 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.

        (b) 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.

        (c) To limit adverse impacts of development on the quality of water throughout the Florida Keys.

        (e) To limit the adverse impacts of development on the quality of water throughout the Florida Keys.

10.  Ord. 2008-26 is neutral with respect to the remaining Principles. Ord. 2008-26 is inconsistent with the Principles for Guiding Development as a whole.

WHEREFORE, IT IS ORDERED that Ord. 2008-26 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 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 31-106.201(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 24th day of December, 2008.

                                                                                                                                _____________________________

                                                                                                                                Paula Ford, Agency Clerk

 

By U.S. Mail:

Honorable Edward P. Worthington, Mayor

City of Marathon

10054-55 Overseas Highway

Marathon, Florida 33050

 

Diane Clavier, City Clerk

City of Marathon

10045-55 Overseas Highway

Marathon, Florida 33050

 

Mike Puto

Acting City Manager

City of Marathon

10054-55 Overseas Highway

Marathon, Florida 33050

 

Jimmy Morales, Esq.

Stearns Weaver Miller Weissler

Alhadeff & Sitterson, P.A.

Suite 2200 Museum Tower

150 West Flagler Street

Miami, Florida 33130