DEPARTMENT OF COMMUNITY AFFAIRS
DCA Final Order No.: DCA06-OR-156
STATE OF
DEPARTMENT OF COMMUNITY AFFAIRS
In re: CITY OF
REGULATIONS ADOPTED BY
ORDINANCE NO. 2006-04
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 the City of
2. On April 26, 2006, the Department received for review City of
3. Ord. 2006-04 is inconsistent with the City’s 2010 Comprehensive Plan, Policies 1-3.2.1 and 1-3.2.7. The language of the Ordinance is unclear and may give rise to ambiguous interpretations of the transfer of building rights procedure.
CONCLUSIONS OF LAW
4. The Department is required to approve or reject land development regulations that are enacted, amended, or rescinded by any local government in the Florida Keys Area of Critical State Concern.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),
5. The City of
6. “Land development regulations” include local zoning, subdivision, building, and other regulations controlling the development of land. § 380.031(8),
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 All land development regulations enacted, amended, or rescinded within an area of critical state concern must be consistent with the Principles for Guiding Development (the “Principles”) as set forth in § 380.0552(7), Fla.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.
8. Ord. 2006-04 is inconsistent with Principle (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.
9. Ord. 2006-04 is not consistent with the Principles for Guiding Development as a whole.
10. Ord. 2006-04 is not consistent with the City’s 2010 Comprehensive Plan.
WHEREFORE, IT IS ORDERED that Ord. 2006-04 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 INFORMA 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 June, 2006.
___________________________________
Paula Ford, Agency Clerk
By
Honorable John Bartus, Mayor
City of
10054-55 Overseas Highway
Cindy Ecklund, City Clerk
City of
10045-55 Overseas Highway
Mike Puto
Acting City Manager
City of
10054-55 Overseas Highway
John Herin, Esq.
Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.