Miscellaneous

DEPARTMENT OF COMMUNITY AFFAIRS
Division of Community Planning
DCA Final Order No.: DCA09-OR-124

STATE OF FLORIDA

DEPARTMENT OF COMMUNITY AFFAIRS

In Re:     LAND DEVELOPMENT REGULATIONS

                ADOPTED BY CITY OF KEY WEST

                ORDINANCE NO. 09-06

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                                FINAL ORDER

The Department of Community Affairs (the “Department”) hereby issues its Final Order, pursuant to Sections 380.05(6) and (11), Florida Statutes, (2008), 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 April 14, 2009 the Department received for review City of Key West Ordinance No. 09-06, which was adopted by the City of Key West City Commission on April 8, 2009, (“Ord. 09-06”). The purpose of Ord. 09-06 is to amend Part B, Land Development Regulations, Section 86-9, 122-238 and 122-1151, to define pitched roof and to allow an extra five feet in building height in the single family (SF) district for non-habitable purposes when the structure has a pitched roof.

3.     Ord. 09-06 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. Sections 380.05(6) and 380.05(11), Florida Statutes, (2008).

5.     The City of Key West is an Area of Critical State Concern. Section 380.05, Florida Statutes (2008) and Rule 28-36.001, Florida Administrative Code.

6.     “Land development regulations” include local zoning, subdivision, building, and other regulations controlling the development of land. Section 380.031(8), Florida Statutes (2008). The regulations adopted by Ord. 09-06 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     All land development regulations enacted, amended, or rescinded within an area of critical state concern must be consistent with the principles for guiding development for the particular area (the “Principles”).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 Administrative Code.

8.     Ord. 09-06 promotes and furthers the following Principles in subsection 28-36.003(1), Florida Administrative Code:

        (a) To strengthen local government capabilities for managing land use and development.

        (e) Protection of historical heritage of Key West and the Key West Historical Preservation District.

        (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.

9.     Ord. 09-06 is not inconsistent with the remaining Principles. Ord. 09-06 is consistent with the Principles for Guiding Development as a whole. Ord. 09-06 furthers the Key West Comprehensive Plan Policy 1-2.1.3: Single Family Residential Development; Policy 3-1.7.3: Minimize Potential Blighting Influences; Policy 1A-1.3.11: City Actions to Assist Historic Preservation; and Policy 1A-5.1.4: Maintain Unique Architectural Heritage of Historically Significant Housing Resources.

WHEREFORE, IT IS ORDERED that Ord. 09-06 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.

                                                                                                                                _________________________________

                                                                                                                                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 April, 2009.

                                                                                                                                ____________________________

                                                                                                                                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