STATE OF FLORIDA ADMINISTRATION COMMISSION

DEPARTMENT OF COMMUNITY AFFAIRS

Petitioner,

vs.

MONROE COUNTY, AC Case No. ACC-95-024

FINAL ORDER NO. ACC: 95-035

Respondent, DOAH Case No. 91-1932GM

and

1000 Friends of Florida, et al, Intervenors.

/

FINAL ORDER AND ORDER OF PARTIAL REMAND

This cause came before the Governor and Cabinet, sitting as the Administration Commission ("Commission"), on December 12, 1995, on the Recommended Order entered pursuant to Section 163.3184(10)(b), Florida Statutes, in Division of Administrative Hearings Consolidated Case No. 91-1932GM. On June 16, 1993, the Department of Community Affairs ("Department") issued its Statement of Intent to find the Monroe County Year 2010 Comprehensive Plan ("Plan") not "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes (F.S.). Pursuant to Section 163.3184(10)(a), F.S., the Department's petition for administrative hearing was forwarded to the Division of Administrative Hearings; a Hearing Officer was assigned and a five-week formal hearing was conducted in September and October, 1994, in Monroe County. The Hearing Officer issued a Recommended Order on July 17, 1995, finding the Plan not "in compliance."

The Commission hereby adopts the Recommended Order of the Hearing Officer (attached hereto as Attachment "A"), which is hereby incorporated by reference as if fully set forth herein, and finds the Plan to be not in compliance, subject to the rulings on exceptions set forth below.

Rulings on Exceptions.

EXCEPTIONS FILED BY THE DEPARTMENT OF COMMUNITY AFFAIRS

Exception 1. - Correction of Language in the Recommended Order.

The Department's first objection to the Recommended Order concerns the Hearing Officer's statement in Finding of Fact 109 that, "The Remedial Plan does not contain any limitation of future growth based upon environmental factors." The Department asserts that this factual determination is overly broad and conflicts with the weight of the evidence. There is ample evidence in the record to support a finding that the Plan limits growth based upon environmental factors. The Department suggests that the hearing officer may have instead meant to find that the Permit Allocation System (PAS) does not contain any limitations of future growth based upon an environmental carrying capacity approach. The exception by the Department is well taken and is hereby granted.

Finding of Fact 109 is hereby rejected.

Exception 2. - Correction of a Typographical Error.

In Finding of Fact 919, the Department points out that the Hearing Officer inadvertently transposed numbers to state an inaccurate number of potentially developable lots. The record supports the assertion by the Department that the number of such lots should be 14,923 instead of 14,293. This exception is granted, and the correction is hereby adopted.

Exception 3. - Misstatement of "in Compliance" with the Act.

The Department notes that Finding of Fact 1031 addresses the failure of the PAS to distinguish between V and A zones in determining negative points to be assigned development, and then apparently misstates that the Policy is "in Compliance" with the Act. The Departments exception is granted upon the grounds that the evidence does indeed indicate that the Hearing Officer concluded that the Policy was NOT "in Compliance" with the Act.

Exceptions 4 and 7. - Failure to State Whether Policies are "in Compliance" in Findings of Fact 1069, 1075, 1078, and 1224-1229.

These Findings of Fact do not include the Hearing Officer's conclusion as to whether the Policies involved are "in Compliance" or Not "in Compliance" with the Act. Since there is ample evidence contained within the record before the Commission to support the finding that Policies 101.13.7, 101.13.10, and

101.12.4 are NOT "in Compliance" with the Act, Findings of Fact 1069, 1075, 1078, and 1224-1229, are rejected, and the Commission

finds that the stated Policies are NOT "in Compliance" with the Act.

Exception 5. - The Future Land Use Map and its Relation to the Permit Allocation System.

The Department objects to Findings of Fact 1148, 1151, and 1152, which state the conclusion that the Future Land Use Map fails to reflect the limitation of the Permit Allocation System. The record before the Commission contains sufficient evidence to indicate that the FLUM does indeed reflect the limitations of the PAS.

The FLUM states thereupon; Permit Allocation System - Residential and Nonresidential development in Monroe County is subject to the Permit Allocation System (see objectives

101.2 and 101.3 and related policies).

Therefore, the Department's exception on this ground is granted, and Findings of Fact 1148, 1151, and 1152, are rejected.

Exception 6. - Construction of Mobile Homes in the Coastal High Hazard Area.

The Department takes exception to Finding of Fact 1217 which speaks to Policy 217.3.2 of the Monroe County Plan. The Department's objection is not well founded as there is ample record support for the Hearing Officer's finding disallowing mobile homes in the coastal high hazard area, despite previous zoning allowances in the county. Westchester General Hospital v. Dept. Of Health and Rehabilitative Services, 419 So.2d 705 (Fla.

1st DCA 1982).

EXCEPTIONS FILED BY MONROE COUNTY

Exception 1 - Policy 1: Monroe County's Responsibility to Fund the Comprehensive Plan.

Monroe County objects to the Hearing Officer's Findings of Fact 1279-1304 that Policy 1 of the remedial Plan is not in compliance with the Act. These findings relate to the financial feasibility of the Plan.

The Comprehensive Plan is required to contain a schedule of capital improvements for which the local government has fiscal responsibility for the first five fiscal years following adoption of the Plan. Section 163.3177(3)(a)1., F.S. Pursuant to Rule 9J-

5.0055(1)(b), F.A.C., the Capital Improvements Element must demonstrate that the local government can achieve and maintain the plan's adopted level of service standards.

In Policy 1, the County committed to provide a portion of the funding to implement various policies. Policy 1 relies on unidentified federal, state and private funding services to fund most of these efforts. No detail is provided as to each source's share of the funding or whether those funding resources are committed, particularly as to the County's share. In Policy 1, the County recognized that these outside sources may not materialize and reserves the right to amend the Plan in that event. The approach set forth in Policy 1 is inconsistent with Rule 9J-5.0055(1)(b), F.A.C. If a local government wishes to identify an uncommitted funding source, it must also identify an alternative source in the event the uncommitted source is unrealized.

The County's choice to amend the Plan in the event the funding falls short does not redeem Policy 1. There is no provision in the Plan which limits development until the funding is provided or the Plan is amended. That development approval is unacceptable and inconsistent with the competent and substantial evidence supporting the Hearing Officer's finding. (See Transcript Day 4, Vol. I, pp. 105-160.) The exception is rejected.

Exception 2 - Policy 101.4.3, Residential Medium Land Use Category.

The County objects to Findings of Fact 1117-1122 regarding Policy 101.4.3, the definition of the "Residential Medium" land use category. In his findings, the Hearing Officer concluded that the policy should apply only to existing subdivisions for which infrastructure improvements are already in existence as of the date of Plan adoption.

This interpretation is a plain reading of the first sentence in that policy which reads:

The principle purpose of the residential medium land use category is to provide for single-family, suburban residential development, primarily within existing improved subdivisions characterized by disturbed or scarified land.

The County suggests that a subdivision which improves its infrastructure at a future date should be able to qualify for residential medium development. That interpretation is inconsistent on its face with the phrase "existing improved subdivision." The County also alleges that the Hearing Officer's interpretation arbitrarily discriminates between lot owners in lawfully platted subdivisions based on whether road and water lines are in place on the date the Plan is adopted or whether the roads and lines are added later. That allegation is unfounded.

Using the Plan adoption date as a starting point for new Plan regulations is consistent with Section 163.3194(1)(a), F.S., which requires that all development undertaken after the Plan is adopted shall be consistent with the Plan. The exception is rejected.

Exception 3 - Land Use Policies 101.4.5, 101.4.6 and 101.4.22.

The County takes exception to Findings of Fact 1123-1132 regarding Policies 101.4.5., 101.4.6 and 101.4.22, the Mixed Use/Commercial and Mixed Use/Commercial Fishing land use designations, and the Plan's land use density table. The Hearing Officer found that these designations do not include adequate environmental restrictions.

Rather than include environmental restrictions in the policies, the County argues that the use of the Habitat Evaluation Index (HEI) will adequately guide development. The HEI is not a part of the Plan, however; it is a land development regulation.

The Plan policies must be adequate without resort to criteria outside the Plan. (See Department of Community Affairs v.

Escambia County, ER FALR 92:138 (Final Order issued July 22, 1992). Moreover, the HEI is currently undergoing review and its methodology for marking and scoring habitats for future development is unknown. The exception is rejected.

Exception 4 - Policy 101.4.25, Height Limitations.

The County raises an issue related to the Hearing Officer's Findings of Fact 1134-1136 regarding a height limitation for structures. In these findings the Hearing Officer concludes that the 35-foot height limitation provided in the Administration Commission's rule is necessary. The County does not object to that finding. In this exception, the County seeks to amend the rule by adding the authorization for the County to exceed the 35 foot limit in order to cover and close the present landfill.

There was no competent, substantial evidence presented at the hearing on the adequacy of such an amendment to the rule. It

therefore would be inappropriate to require that rule revision at this point in the proceedings, as this order is issued pursuant to Section 163.3184(11), F.S., regarding compliance, not rule promulgation under Chapter 120 and 380, F.S. Monroe County, instead, should cover and close the present landfill and prevent it from further exceeding 35 feet. The exception is rejected.

Exception 5 - Future Land Use Maps.

The County objects to Findings of Fact 1146-1152 regarding the future land use map (FLUM) series and the ruling that the maps are not in compliance with the Act. This exception is based on the County's belief that the Hearing Officer overlooked the notation on the maps that residential and non-residential development is subject to the Permit Allocation System in Objectives 101.2 and 101.3 and related policies. This exception is granted, in part. The notation on the maps states:

PERMIT ALLOCATION SYSTEM. Residential and non- residential development in Monroe County is subject to the Permit Allocation System (See Objectives 101.2 and

101.3 and related policies).

However, the Hearing Officer found that the maps contain far more undeveloped property than may be developed under the Plan, despite the limitations imposed by the Permit Allocation System. Rule 9J-5.005(5)(b), F.A.C., requires that future condition maps reflect goals, objectives and policies within all of the elements. Therefore, the County's exception to the finding that the maps are not in compliance is denied; however, the exception to Findings of Fact 1148 and 1151 are granted.

Exception 6 - Policies 101.5.4 and 101.5.5, Permit Allocation Point System.

Monroe County takes exception to Findings of Fact 1007-1008 regarding the point system set forth in Policies 101.5.4 and 101.5.5, application of which determines which permits are to be issued under the Permit Allocation System. The County challenges the rulings on several of the scoring criteria in these policies.

First, the County takes issue with the ruling that rejects the point allocation for impacts on threatened or endangered species. Under the Plan, adverse impacts to threatened or endangered species fall within the "major negative points" range, which is 6 to 10 points. Regardless of how many different species

the development will impact, the development will receive negative

6 points total for impacts to threatened and endangered species.

The Hearing Officer found that areas which provide habitat to multiple threatened or endangered species should be given more protection under the point system. Without a greater weight in scoring for multiple species, the purpose of protecting individual endangered and threatened species is thwarted. (See Transcript

10-10-94, pp. 5-8) The exception is rejected as to the endangered and threatened species point criteria.

The County also objects to the Hearing Officer's finding that upholds the Commission's inclusion of "species of special concern" in the same weight category as that of endangered and threatened species. In the County's opinion, species of special concern do not require the same level of protection as threatened or endangered species.

Species of special concern are treated differently from threatened or endangered species under Chapter 9J-5, F.A.C. Rule 9J-5.013(2)(c)5, F.A.C., requires the restriction of activities known to adversely affect the survival of endangered and threatened wildlife. The protection of species of special concern is governed by other requirements of Rule 9J-5.013(2) and (3), F.A.C., regarding protection of wildlife. The Department of Environmental Protection recognizes and enumerates species of special concern, which are deserving of the protection 9J-5 affords, above, as well as that afforded to threatened and endangered species. (See Transcript Day 14, Vol. II, pp. 240; Day 10/5/94, p. 204; DCA Exhibit 63.)

Next, the County objects to the Hearing Officer's ruling in Finding of Fact 1020 that the point system should award major negative points for proposed development on Big Pine Key, No Name Key, Ohio Key and North Key Largo. This exception is based on the concern that a proposed development on one of these Keys would unfairly be penalized even if there was no habitat for endangered or threatened species present on site. The evidence in the hearing below, however, established that Big Pine Key, No Name Key, Ohio Key and North Key Largo are environmentally special and sensitive islands for which environmental protection is warranted. The additional point criteria are necessary to deal with secondary impacts to these islands that are not addressed under the habitat designations in the Plan (See Transcript 10/10/94, pp. 15-18).

The exception is denied.

Finally, the County objects to the Hearing Officer's ruling that proposed development should be awarded major negative points if it is located within the proposed Priority I and Priority II acquisition areas of the National Key Deer Refuge or within the Coupon Bight CARL acquisition areas. The County argues that this appears to be an attempt to use the Permit Allocation System to prevent or delay development so that the property can be purchased at a lower cost. There is no competent, substantial evidence in the record, however, that supports the County's premise that the property values will be depressed as a result of the point system. Accordingly, the County's argument that this ruling is inconsistent with Joint Ventures, Inc. v. Department of Transportation, 563 So.2d 622 (Fla. 1990) need not be addressed. (See also Transcript Day 14, Vol. I, pp. 14-16, 30-45, 124.) The exception is rejected.

Exception 7 - Policy 101.5.5(2), Difference in Effective Dates.

The County takes exception to Findings of Fact 1043-1046 that there is an internal inconsistency between the effective dates in Policy 101.5.4(1) and Policy 101.5.5(2). As the County correctly points out, Policy 101.5.4(1) applies to residential development whereas Policy 101.5.5(2) applies to non-residential development. However, the effective dates should be internally consistent.

Section 163.3177(2), F.S. The exception is rejected.

Exception 8 - Policy 101.5.7, Delayed Consideration of Additional Point System Criteria.

The County objects to Findings of Fact 1020 and 1048 that the County should not defer consideration of the possibility of awarding negative points for developments impacting North Key Largo and consideration of whether points should be awarded for transfers of development rights. In support of these deferrals, the County argues that the criteria set out in Policy 101.5.7 have not been reviewed in public hearings yet and the County needs additional time to present the criteria to the public.

There is no evidence in the record which demonstrates that this set of criteria was not subject to public hearings along with the rest of the Plan. Even if there was testimony that the criteria in this policy was not part of the extensive public hearings, the bases for including these additional criteria is supported by the reality of development impacts in Monroe County, and the provisions are included in the Plan and the Technical Support Document (Monroe County Exhibits 1(a) and 1(b)) which were approved pursuant to the public participation and notice

requirements of Chapter 163, Part II, F.S. The exception is without merit and rejected.

Exception 9 - Policies 101.13.6 and 101.13.8, TDR Sender and Receiver Sites.

The County objects to the ruling that Transferrable Development Rights (TDRs) and Potential Development Credits (PDCs)(Policies 101.13.6 and 101.13.8) are not in compliance because moderate quality hammocks, low quality pinelands, habitat in the SR (Suburban Residential) district and disturbed wetlands are not listed as sender sites. This objection is based on a concern that these programs will be jeopardized due to a reduction in available receiver sites. The record does not support a finding that removing these areas from the list of receiver sites and adding them to the list of sender sites will impede the TDR program for lack of available sender sites. Available sender sites are included in these policies. Since the TDR program was instituted in 1987, the development rights of only 25 units have been transferred. (See Finding of Fact 1055.)

The County also alleges error in Finding of Fact 1081 that these additional habitats should be protected as sender sites rather than be developed more intensively as receiver sites. In support of its position, the County makes reference to the County's environmental performance standards. These standards are not a part of the Plan, however, and cannot be relied upon in evaluating the sufficiency of the TDR and PDC policies.

Nevertheless, the County's statements about how the TDR and PDC transfers will work are not in conflict with the Hearing Officer's findings. The exception is rejected.

Exception 10 - Policies 102.1.1, 203.1.3, 204.2.1 and 204.2.6, Wetland Setback.

The County takes exception to the ruling that the twenty foot setback established in the above listed policies does not provide adequate protection for wetlands from the impacts of development. In Findings of Fact 671 and 672, the Hearing Officer found that a fifty foot setback will better protect wetlands and bring the policies into compliance. These findings are supported by competent, substantial evidence. (See Transcript Day 10/15/94, pp. 253-258.) The exception is rejected.

Exception 11 - Policy 102.2.1, On-site vs. Off-site Mitigation.

The County objects to Findings of Fact 679-686 that Policy

102.2.1 is not in compliance because it fails to specify how the County will eliminate the net loss of disturbed wetlands. The Hearing Officer finds that on-site mitigation should be required "if possible before resorting to off-site mitigation." Rule 9J- 5.003(95), F.A.C., defines "policy" as "the way in which programs and activities are conducted to achieve an identified goal." Without the requirement that on-site mitigation be done where possible, Policy 102.2.1 offers no guidance as to how net losses of disturbed wetlands will be eliminated. Although it is appropriate for the land development regulations to implement Policy 102.2.1, the policy must first identify the specific program or activity to be implemented. The exception is rejected.

Exception 12 - Objective 102.1 and Policies 103.1.5, 103.1.10, and 103.1.13, Key Deer Protection.

The County objects to the rulings that Objective 103.1 and Policies 103.1.5, 103.1.10, and 103.1.13 are not in compliance because of their impacts on Key deer. The Hearing Officer found Objective 103.1 to be not in compliance because it allows additional development on Big Pine Key and No Name Key. That objective contemplates future development, including public facilities, consistent with the goals, objectives and policies of the Plan.

To allow additional development on these Keys is inconsistent with the data and analysis and expert testimony which indicates that the Key deer population has reached its carrying capacity. (See Transcript Day 14, Vol. I, p. 38-43, 58-60, 90; Testimony of Kruer at Day 12, Vol. II; Testimony of Folk at Day 15, 10/7/95.) Rule 9J-5.005(2)(a), F.A.C., and Section 163.3177(10)(e), F.S.,

require that goals, objectives and policies be based upon data and analysis. Objective 103.1 is inconsistent with the data and analysis on the Key deer's carrying capacity. This Objective also is inconsistent with Rule 9J-5.013(2)(b)4., F.A.C., which requires the conservation, appropriate use of, and protection of wildlife and wildlife habitat. It also is inconsistent with Rule 9J- 5.013(2)(c)5., F.A.C., which requires the restriction of activities known to adversely affect the survival of endangered species. Moreover, the plight of the Key deer in competing with development for habitat and fresh water is at the root of the rulings as to Policies 103.1.5, 103.10 and 103.13, as well.

The County maintains that these rulings amount to a moratorium on all future development on Big Pine Key and No Name Key. The Hearing Officer does not recommend a cessation of all

development on those Keys, however. Development may occur on portions of Big Pine Key and No Name Key where the Key deer will not be negatively impacted. Policy 103.1.1 requires the Permit Allocation System to discourage development in Key deer habitat. Accordingly, it must be concluded that the Hearing Officer's rulings do not amount to a building moratorium. The exception is rejected.

Exception 13 - Policy 212.5.2, Siting of Residential Docks.

The Hearing Officer ruled that Policy 212.5.2 is not in compliance because it allows single family docks to be constructed where the dock ends at a depth of three feet at mean low tide.

The County objects to this finding, however and requests that a compromise regulation agreed upon by the County and DCA be adopted to address the Hearing Officer's concerns. The Commission may ultimately adopt this regulation proposed in Rule 23-20.025(23), F.A.C., but this order must determine whether the current policy is in compliance at this time. In any event, the ruling that three feet of water is insufficient to protect seagrasses and nearshore waters is supported by competent, substantial evidence. (See Transcript Day 12, Vol. I, pp. 115-147; DCA Exhibits 32-37; Day 10/5/94), pp. 260-262.) The exception is rejected.

Exception 14 - Distinction between Disturbed and Undisturbed Wetlands.

The County takes exception to the Hearing Officer's ruling that disturbed wetlands still retain functional wet land characteristics and natural resource value and should be accorded greater protection than the Plan provides. Based on this ruling, the Hearing Officer found Policies 101.4.18, 204.2.4, 215.2.3 and

901.5.7 to be not in compliance. The Hearing Officer's rejection of the distinction between disturbed and undisturbed wetlands, and requirement that the extent of use of disturbed wetlands be based upon a functionality assessment, is supported by competent, substantial evidence. (See Transcript Day 10/5/94, pp. 209-210; 251.) The exception is rejected.

Exception 15 - Hurricane Evacuation.

The County objects to the Hearing Officer's findings that Goal 216, Policy 216.1.1 and Objective 101.2 are not in compliance because they provide for a hurricane evacuation goal of more than

24 hours.

In 1989, an analysis conducted by Post, Buckley, Schuh & Jernigan of the evacuation clearance time for Monroe County concluded that it took 35 hours to evacuate residents and visitors. (See Finding of Fact 799.) The National Hurricane Center issues a hurricane warning when it believes the hurricane will make landfall within 24 hours. (See Finding of Fact 772.) The 1989 Post Buckley analysis concluded that after Card Sound Road is improved (which had occurred prior to the administrative hearing in this case), the clearance time could be reduced to

24.75 hours. (See Finding of Fact 807.) A clearance time of

24.75 hours closely approximates the amount of time it would take people to evacuate to safety after a hurricane warning is issued.

Rather than attempt to achieve the clearance time of 24.75 hours, the County adopted a clearance time goal of 30 hours through the year 2002 and a goal of 24 hours for the year 2010. As the Plan's methodology for attaining a clearance goal of 30 hours through the year 2002 provides for new residential

development, it is a unclear how the goal of 24 hours for the year 2010 will be achieved. The Post, Buckley analysis did not account for that rate of growth and the Plan is silent on how the 24 hour clearance time will be accomplished.

The County cites to Rule 9J-5.012(3)(b)7., F.A.C., which requires local governments to maintain or reduce hurricane evacuation times. The County argues that there is no legal authority for the Hearing Officer to decide how much of a reduction in clearance time is sufficient. Section 163.3177(6)(g)8., F.S., however, requires that the coastal management element protect human life against the effects of natural disasters. The adoption of the 30 hour clearance time is inconsistent with this mandate. Furthermore, the 30 hour clearance time is inconsistent with the 24 hour target clearance time for the year 2010, as the 30 hour clearance time, which allows continued development, would make the future 24 hour clearance time difficult to achieve. Section 163.3177(2), F.S., and Rule 9J-5.005(5)(a), F.A.C., prohibits internal inconsistencies between Plan provisions. The exception is rejected.

Exception 16 - Nearshore Water Quality

The County objects to Findings of Fact 491-493, 503-524, 525- 526, 543-547, 548-549, and 732-733 regarding nearshore water quality, which conclude that Objective 101.9, Policy 101.9.4, Objective 213.1, Goal 901, Policy 901.1.1, Policy 901.2.9, and Objective 901.4 are not in compliance. The County maintains that

these findings are not based on data and analysis that was available to the County in 1993.

In support of this exception, the County refers to several reports of the Florida Keys National Marine Sanctuary including the Phase One report which was finalized in July of 1992.

According to the exception, that report documented the state of water qualities in the Keys and consolidated information known by several individuals about specific problems. This report included data about water quality that the County should have analyzed and applied to its Plan. The Phase Two and Three reports also referenced in the exception were available before Plan adoption as well. At hearing, 1000 Friends of Florida introduced several additional documents which include water quality data and analysis that was available at the time of Plan adoption. (See Transcript 10/13/94, pp. 58-61; 70-72; 1000 Friends Exhibits 13, 15, 16, 17

and 35.)

The County's argument is without merit and is inconsistent with Section 163.3184(10)(e), F.S., which requires that plans be based on the best data available at the time of Plan adoption.

The Hearing Officer's rulings also are consistent with the requirement in Rule 9J-5.005(2)(a), F.A.C., that all goals, objectives and policies be based on relevant and appropriate data and analysis. The exception is rejected.

Exception 17 - Vested Rights

The County takes exception to the finding that Policy 101.18.5(1) is not in compliance. This exception alleges that the Hearing Officer misapplied the precedent of Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992), wherein the United States Supreme Court rejected the argument that a property owner could be denied all use of his or her property without receiving just compensation if necessary to protect the public health, safety and welfare.

The evidence adduced at hearing indicated that the modification of Policy 101.18.5(1), as proposed by the Commissions' Rule 28-20.100(18), F.A.C., to include a reference to the County's police power to deny economically reasonable use of property in order to protect health, safety and welfare, is intended to be cumulative to (or to supplement) the County's exercise of its authority to regulate a nuisance. (See Transcript Day 10/18/94, pp. 248-249.) However, the finding is vague and does not clarify the legal parameters under which the County may regulate land use based upon its police powers or its powers to

regulate a nuisance. Notwithstanding the Hearing Officer's findings that proposed Rule 28-20.100(18), F.A.C., is a valid exercise of delegated legislative authority, the subject policy, as originally proposed by Monroe County (i.e., the reference to health, safety and welfare is excluded) is in compliance with Chapter 163, Part II, F.S., and existing "takings" law. The exception is granted.

EXCEPTIONS FILED BY 1000 FRIENDS OF FLORIDA

Exception 1 - Failure to Rule On Proposed Findings of Fact.

The Hearing Officer declined to rule on the proposed findings of fact submitted by 1000 Friends on the grounds that its proposed order exceeded the maximum page limit. At the conclusion of the hearing, the Hearing Officer imposed an 80-page limitation for the proposed orders. The proposed order filed by 1000 Friends was single spaced and did not exceed the 80-page limitation. The Hearing Officer determined that if 1000 Friends converted its proposed order to a double spaced format, the 80-page limit would have been exceeded. In reaching his decision not to rule on the proposed findings, the Hearing Officer noted that "virtually all pleadings filed in these cases since the filing of the original Plan challenge case in 1991 have been double spaced."

(Recommended Order at p. 19.)

Rule 60Q-2.053, F.A.C., sets forth general requirements for filing pleadings with the Division of Administrative Hearings.

The format requirements specified in Rule 60Q-2.003(8), F.A.C., provide in pertinent part:

Effective January 1, 1988, all pleadings shall be filed on opaque, unglossed, white paper measuring 8-1/2 X 11 inches, with margins of no less than one inch...

The procedural rule on proposed recommended orders, Rule 60Q- 2.031, F.A.C., does not require double spacing, as Rule 60Q- 2.015(4)(a), F.A.C., requires for prefiled evidence.

Although Hearing Officers are entitled to exercise discretion in the conduct of administrative proceedings, rulings imposed by a Hearing Officer in the exercise of that discretion should be clear and specific. The Hearing Officer had the authority to require that the proposed orders be double spaced; however, he did not properly invoke that requirement by reciting it at the conclusion of the hearing. The failure to clarify this requirement before

the filing of the proposed orders invited 1000 Friends, as well as George N. Kundtz and the Florida Keys Citizens' Coalition, the Upper Keys Citizens Association and the Wilderness Society, to attempt to summarize five weeks of testimony into a single spaced 80-page proposed order.

In filing this exception, 1000 Friends asks that only proposed findings 277-284, 309, and 468-493 be addressed by ruling of the Hearing Officer. Accordingly, this exception is granted and a partial remand is ordered for the limited purpose of ruling on these proposed findings.

Exception 2 - Storm Water Level of Service.

1000 Friends takes exception to Finding of Fact 551 which determines that levels of service for stormwater not discharged directly to surface waters are sufficient to protect water quality in the Florida Keys. As provided by the testimony specified in the exception, however, the competent substantial evidence demonstrated that, in general, the existing stormwater level of service was inadequate to protect water quality in nearshore resources. Furthermore, the evidence in the proceeding below demonstrated that discharge of stormwater to groundwater generally impacts the marine system in the same manner as direct discharge to surface water, due in part to the geology of the Keys. Finding of Fact 551 is inconsistent with the evidence as well as other competent findings in the Recommended Order, such as Findings of Fact 407, 410, 425, 545, and 546. The Commission finds that the evidence established that the levels of service for stormwater not discharged directly to surface waters are insufficient to protect water quality in the Florida Keys. 1000 Friends' of Florida exception is granted, and the stormwater levels of service shall be addressed in the remedial actions to bring the Plan into compliance.

Exception 3 - Coral Reefs.

1000 Friends takes exception to Finding of Fact 581 which states that the evidence failed to prove that the Plan does not contain provisions adequate for the protection of coral reefs.

Findings of Fact 124-126, as suggested by 1000 Friends, does discuss the interconnected nature of the marine habitat in the Florida Keys. The remaining Findings of Fact identified by 1000 Friends in this exception, however, are inapplicable or incorrectly summarized in the exception. Moreover, other findings of fact in the Recommended Order that are supported by competent

substantial evidence indicate that while coral reefs are diverse habitat systems, are important to the Florida Keys economy, and have no tolerance to pollutants, the evidence failed to prove that the experts who testified at the hearing below can agree on all of the causes of the degradation of the quality of coral reefs. (See Findings of Fact 194-197, 307, and 308.) Moreover, the evidence did not prove that the degradation of coral reefs is being caused solely by development in the Florida Keys. (See Finding of Fact 309.) While the Hearing Officer finds that nutrient enrichment is negatively impacting coral reefs, and that the data and analysis concerning coral reefs in the Florida Keys supports extreme caution as to how development is allowed to proceed, the data fails to support a finding that the coral reefs have reached their carrying capacity for additional development. (See Finding of Fact 309, 428-429.) The policy document of the Plan requires Monroe County to coordinate with the Florida Keys National Marine Sanctuary Water Quality Protection Program to evaluate progress toward restoring the coral reefs and other living marine resources of the sanctuary. Objective 203.3 of the Plan requires Monroe County to support state and federal agencies in the development and implementation of management measures to protect coral reefs. Policy 203.3.4 requires Monroe County to continue to protect, preserve and enhance the coral reef through its land development regulations which address water quality, including efforts to (a) limit the location of water dependent activities; (b) control and regulate land and water activities in the vicinity of coral; and

(c) include management policies for John Pennekamp State Park and Looe Key National Marine Sanctuary. (See Monroe County Exhibit 1A.) It is therefore determined that the Plan includes provisions adequate for the protection of coral reefs which will be implemented by more detailed land development regulations, and Findings of Fact 194- 197, 307-309, 428-429 are supported by competent substantial evidence. The exception is rejected.

Exception 4 - Legal Requirements For Objectives and Policies.

1000 Friends takes exception to Findings of Fact 1236, 1238, 1240 and 1242 as legal conclusions that allow the County to defer implementation of intergovernmental policies to subsequently adopted land development regulations. It is established principle that comprehensive plan policies are not in compliance if the minimum criteria pursuant to Rule 9J-5, F.A.C., is deferred to land development regulations. See Hiss et. al. v. Sarasota County, DOAH Case No. 89-3380GM (DOAH Order dated August 13, 1990); and Department of Community Affairs v. Escambia County, Case No. ACC-92-010; ER FALR 92:138 (July 24, 1992). Such is not

the case here. The intergovernmental coordination policies

identified in the above findings of fact are legitimate "policies", as defined in Rule 9J-5.003(9), F.A.C., and do not defer programs and activities for implementation via land development regulations. Furthermore, the policies are consistent with the requirements of Rule 9J-5.015(3)(c), F.A.C.

Findings of Fact 1236 and 1238 address Policy 1301.1.9 which 1000 Friends alleges to be vague and specifies no end result. The policy provides direction to achieve an identified goal to initiate governmental agreements with various state agencies in order to assist the County in its efforts to streamline its effectiveness by establishing coordinated agency review procedures. The policy requests that the Department of Community Affairs initiate said intergovernmental agreements which will establish "coordinated permit procedures and greater understanding of mutual concerns and long term goals." The policy itself (see Monroe County Exhibit 1A) supports a finding that competent substantial evidence exists to find the policy in compliance, in that it complies with the requirements of 9J-5.015(c)(1), F.A.C. The exception to Finding of Fact 1236 and 1238 is rejected.

Finding of Fact 1240 to which 1000 Friends takes exception determines that the evidence failed to prove that the policies are vague because they do not require the County to "minimize" impacts of development as opposed to "considering" them. Rule 9J-5.015, F.A.C., does not require local governments to "minimize" level of service impacts to adjacent jurisdictions. Rather Rule 9J- 5.015(3)(b)2. requires the Plan to have an objective to ensure that the local government addresses through coordinating mechanisms the impacts of development upon adjacent jurisdictions, which Policy 1301.3.2 achieves. The policy requires the$ County to consider the impacts of proposed development on the level of service standards of adjacent local governments (Dade and Collier counties) through its development review process. The policy does not defer this consideration to the land development regulations, rather it is an activity to be accomplished by the County now in its development review process. The policy provides sufficient policy direction consistent with the requirements of 9J- 5.015(3)(b)2. and 9J-5.003(95), F.A.C.

Similarly, Policy 1301.3.3 requires the County, as part of the planning process, to consider the impacts of projected development on the comprehensive plans of incorporated cities within Monroe County. This policy is consistent with the requirements of Rule 9J-5.015(3)(c)7, F.A.C., which requires the County to review development for its relationship to the existing comprehensive plans of adjacent local governments (here,

municipalities within the County). The Policy is not vague nor does it defer implementation to the land development regulations, rather it meets the above minimum criteria and provides policy direction to the County. Finding of Fact 1240 is supported by competent substantial evidence (see Monroe County Exhibit 1A) and the exception is rejected.

1000 Friends takes exception to Finding of Fact 1242 which addresses several policies in the County's intergovernmental coordination element, to wit: Policy 1301.7.4 requiring the County to coordinate its upland mapping activities with affected agencies sharing that responsibility; Policy 1301.7.7 requiring the County to coordinate its boating impact management activities with affected and responsible agencies; Policy 1301.7.8 requiring the County to cooperate with the U.S. Fish and Wildlife Service regarding recovery of threatened and endangered plant species; and Policy 1301.7.15 requiring the County to coordinate with Department of Natural Resources (now Department of Environmental Protection) to encourage total state acquisition of North Key Largo. These policies are consistent with Rule 9J-5.015(3)(b)1 and (3)(c)1., F.A.C. The policies are not vague and provide policy direction for the County to accomplish the activity for which state and federal agency coordination is required. Simply because a policy does not specify how the coordination will occur, does not always render the policy not in compliance. The sentence in Finding of Fact 1242 that, "the Act does not require that every detail of how Monroe County will carry out its objectives and policies be specified in the remedial plan" is supported by competent substantial evidence and is consistent with Chapter 163, Part II, F.S. and Rule 9J-5, F.A.C. The exception to the Finding of Fact is rejected.

EXCEPTIONS FILED BY INTERVENORS DECARION, ET AL

Exception 1 - Standing.

DeCarion takes exception to the standing of 1000 Friends of Florida to participate as a party to the proceeding below.

DeCarion previously filed a motion for dismissal of 1000 Friends as a party, which has been ruled upon by the Division of Administrative Hearings in its "Order Denying Motion of DeCarion, et. al., to Dismiss 1000 Friends of Florida as a Party to Chapter

163 Proceeding." In its order, the Division states:

DeCarion has contended that 1000 Friends should be dismissed because it failed to prove facts sufficient to conclude that it has standing to participate in the

Chapter 163, Florida Statutes, review, and because the factual basis for its standing is legally insufficient.

DeCarion ignores the fact that none of the parties except the Department of Community Affairs and Monroe County presented proof of the facts alleged to support standing. To grant DeCarion's motion for failure to offer sufficient proof would require dismissal of most of the parties, including DeCarion. (Emphasis added.)

DeCarion has apparently forgotten that the parties stipulated at the commencement of the Final Hearing that the [sic] all the parties to this proceeding have standing. While the parties may not stipulate to a legal conclusion that a party has standing, the stipulation is sufficient to support an acceptance, as true, of the facts alleged by each party in support of standing....

The petition filed by 1000 Friends is sufficient to support a conclusion that 1000 Friends has organizational standing.

Whereupon, the Division determined that the motion of DeCarion to dismiss 1000 Friends as a party to the Chapter 163 proceeding is denied. Similarly, DeCarion has failed to demonstrate that the Recommended Order's acceptance of 1000 Friends as a party to the subject proceeding is not supported by competent substantial evidence or is inconsistent with the standing requirements for this proceeding (See section 163.3184(1)(a), F.S.), and is therefore, rejected.

Exception 2 - Future Land Use.

DeCarion takes exception to the future land use element as being "inconsistent." The exception states that the "lack of the required FLUM element, despite the County's explanation for the failure to include it is also inconsistent with the proposed plan." DeCarion relies on the Hearing Officer's Finding of Fact 1152 which finds the future land use map (FLUM) not in compliance. Monroe County has, in fact, adopted a future land use element located at pages 2.1-1 through 2.1-76 of the Plan's "Policy Document" (Monroe County Exhibit 1A). DeCarion's exception then analyzes certain policies contained in the Plan, to establish a Permit Allocation System which contains a cap on the number of permits to be issued within the first ten years of the planning horizon, as supported by the County's ability to safely evacuate its citizens in the event of a hurricane. This hurricane clearance time based carrying capacity forms the basis for the Plan's Permit Allocation System. The Hearing Officer found that

the cap on the number of permits is not in compliance because it is based upon faulty calculations of the hurricane evacuation clearance time and service-to-volume capacity of U.S. Highway 1. (See Finding of Fact 994, and testimony of Don Lewis, Transcript Day 10, 9/23/95, pp. 5-71.)

In this exception, DeCarion also takes issue with application of Policy 101.2.1 and Policy 101.6.1 in the Plan in support of its position that the "no development scenario" in the "FLUM element" is inconsistent with the remainder of the Plan. The referenced policies taken together, do not promote a "no development scenario." To the contrary, Policy 101.2.1 provides for the allocation of 2,548 building permits. Similarly, Policy 101.6.1 provides a mechanism by which the County may either purchase property for fair market value or permit the minimum reasonable economic use of the property (no less than a single family residence) if the applicant meets the following conditions: (a) they have been denied an allocation award for successive years in the Permit Allocation System; (b) their proposed development otherwise meets all applicable county, state and federal regulations; (c) their allocation application has not been withdrawn; (d) they have complied with all requirements of the Permit Allocation Systems; and (e) they follow the procedures for administrative relief contained in the Dwelling Unit Allocation Ordinance. DeCarion contends that there is an "obvious lack of money to purchase a substantial number of lots." To the contrary, the Hearing Officer's finding that the land use element of the Plan, and particularly the Permit Allocation System is "in compliance" is supported by competent substantial evidence.

Significant evidence was submitted in the record below as to the monies received by Monroe County that have been and will continue to be applied for land acquisition. (See Transcript Day 4, Volume I, pp. 105-160; Finding of Fact 1297.) The exception is rejected.

Exception 3 - Population Projections.

DeCarion takes exception to the Hearing Officer's rejection of its proposed Findings of Fact 7-16. The Hearing Officer notes in the appendix to the Recommended Order that DeCarion's proposed Findings of Fact 7-16 are generally correct, however, the conclusions drawn therefrom are not supported by the weight of the evidence. DeCarion's exception on this point merely alleges the absurdity of the Hearing Officer's logic, recounts the proposed findings of fact and determines that a comprehensive plan that does not comply with Rule 9J-5 is inconsistent with Rule 9J-5.

The Hearing Officer's rejection of DeCarion's Findings of Fact 7-

16 is supported by competent substantial evidence and the exception is rejected.

Exception 4 - Public Notice.

DeCarion takes exception to the public participation and notice afforded the comprehensive plan adoption process. DeCarion takes exception to the Hearing Officer's rejection of its proposed Findings of Fact 11-16. Again, the Hearing Officer finds that while the proposed findings are generally correct, the conclusions drawn therefrom are not supported by the weight of the evidence.

DeCarion fails to demonstrate that the Hearing Officer's finding is not supported by competent substantial evidence. DeCarion's exception focuses on the February 4, 1991, workshop of the Board of County Commissioners at which it formulated its preliminary policy direction for purposes of hiring a consultant to prepare the proposed Plan. In the absence of any procedural defect in the actual adoption of the Plan, no legal issue is created by DeCarion's proposed findings nor its exception, even if they were true. Challenges to plans based on arguments similar to those made by DeCarion have been rejected in the cases of Wilson v. City of Cocoa, DOAH Case No. 90-4821GM (DCA September 11, 1991), FALR 13:3848, and Harris v. DCA and Town of McIntosh, DOAH Case No. 92- 6258 (March 30, 1993), FALR 15:2977. Competent substantial evidence exists in the record to support a finding that the Plan was adopted pursuant to local and state public participation requirements and no procedural defect exists to invalidate the legality of the plan adoption process. DeCarion's exception is rejected.

Exception 5 - Financial Feasibility.

DeCarion takes exception to the Hearing Officer's refusal to find the Plan economically infeasible. (See Findings of Fact 1279-1304.) DeCarion takes exception to the Hearing Officer's rejection of its proposed Finding of Fact 19, in that it is not

supported by the weight of the evidence. Proposed Finding of Fact

19 states that since there are "insufficient identified and committed funds available to implement County's 2010 Plan, the comprehensive plan is not economically feasible." However, ample evidence was submitted in the record below to demonstrate the funds that have been and will continue to be granted to and generated by Monroe County to contribute to the Plan's financial feasibility. (See Transcript Day 4, Vol. I, pp. 105-160.) Furthermore, Policy 1, the funding policy of the Plan, has been supplemented by the Commission's proposed Rule 28-20.100, F.A.C., in which a supplementary Policy 4 has been proposed to clarify the

financial feasibility of the Plan and the County's commitment thereunder. The exception is rejected.

Exception 6 - Evacuation Clearance Time.

DeCarion takes exception to the Hearing Officer's refusal to accept the points raised in DeCarion's paragraphs 41 and 42 of its proposed recommended order, even though the Hearing Officer accepted DeCarion's analysis of the errors in the County's hurricane evacuation clearance time calculations. DeCarion asserts that by determining that 24 hours was the maximum acceptable hurricane evacuation clearance time for Monroe County, that its proposed Finding of Fact 41 and 42 demonstrate that "the County should not have planned for any development even with a 30 hour clearance time." In the Recommended Order, the Hearing Officer rejects the 30 hour clearance time as acceptable, which appears to be consistent with the contents of this exception. In fact, the Hearing Officer determined that nothing greater than a 24-hour evacuation clearance time is acceptable given the geographic and infrastructure constraints of Monroe County, subject to the growth limitations imposed by the Permit Allocation System. (See Findings of Fact 872-891.) DeCarion has failed to demonstrate that the Hearing Officer's findings are not supported by competent substantial evidence; the exception is rejected.

Exception 7 - Evacuation v. Sheltering.

DeCarion takes exception to the Hearing Officer's ruling on its proposed Findings of Fact 46 and 47 as "unsupported by the weight of the evidence." Proposed Finding of Fact 46 and 47 attempt to identify the number of persons at risk in Monroe County should an evacuation policy, as opposed to a hurricane sheltering policy, be adopted and utilized by Monroe County. Simply because additional evidence exists in the record (the viability of hurricane sheltering) does not automatically indicate that the evidence relied upon by the Hearing Officer (the viability of hurricane evacuation) in making his findings is incompetent.

DeCarion's proposed findings, while relevant, do not render the evacuation-based hurricane safety goals, objectives and policies not "in compliance." The exception is rejected.

Exception 8 - Taking of Residential Land.

DeCarion takes exception to the Hearing Officer's conclusion that its proposed Findings of Fact 49 and 50 are "irrelevant." In its proposed Findings of Fact, DeCarion asserts that there are less intrusive alternatives to solving the County's hurricane

evacuation needs than "the taking of 15,000 to 25,000 residentially zoned parcels of land." DeCarion goes on in proposed Finding of Fact 50 to describe alternatives via improvements to the County's highway system to increase evacuation clearance times. The Hearing Officer correctly rules that these proposed findings of fact are irrelevant to the determination of whether the Plan is "in compliance." In addition, no competent substantial evidence exists that a "taking" of residentially zoned parcels of land will occur as a result of adoption of the Plan.

DeCarion takes this notion one step further in this exception to argue that the Plan denies Monroe County citizens their rights to substantive due process guaranteed by Article 1, Section 9 of the Florida Constitution. DeCarion's substantive due process arguments are rejected. To the contrary, competent substantial evidence exists to demonstrate that the Plan does not impose a taking upon the residential parcels in Monroe County. (See Monroe County Exhibit 1A.) The Plan contains policies providing for the issuance of a permit under the Permit Allocation System or, in the alternative, purchase of the land should an applicant be unable to acquire a permit after applying for over four years. Moreover, the Plan commits the Monroe County Land Authority to purchase lands rendered unbuildable by operation of the policies of the Plan, if any, and ample competent substantial evidence was presented in the hearing below that funding has been and will continue to be received by the Land Authority to effectuate said purchases. DeCarion's assertions in this exception that the Plan is "a deprivation of valuable property rights" is unsupported by the evidence introduced at the proceeding below. The Hearing Officer's findings that this portion of the Plan which provides for a Permit Allocation System based on hurricane evacuation capabilities is "in compliance" is supported by competent substantial evidence.

Furthermore, the Plan incorporates provisions relating to numerous legitimate governmental interest, such as public safety, natural resource protection, and public health. The Permit Allocation System must be evaluated within the context of the Plan as a whole. The System promotes many plan goals and objectives in addition to those related to hurricane evacuation. The interest of the County in protecting wildlife and their habitat, as well as human lives and private property, are legitimate. The Florida Supreme Court recently upheld state environmental stewardship of private land where a fencing regulation bore a substantial relationship to the goal of protecting Key deer. Department of Community Affairs v. Moorman, 20 FLW S500 (Fla. 1995). Similarly, the System has a substantial relationship to protecting Key deer and other wildlife and their habitats. In balancing the interest

of the private landowners with legitimate governmental environmental interest, the Moorman Court noted that if an environmental regulation was unreasonable, the landowner would be entitled to compensation. Not only does the Permit Allocation System have a rational basis, but, as discussed above, it will not result in the taking of private property without compensation.

The exception is rejected.

Exception 9 - Evacuation Clearance Time.

DeCarion takes exception to the Hearing Officer's rejection of its proposed Finding of Fact 51 as not supported by the weight of the evidence. DeCarion asserts that expert testimony was provided whereby the County could reduce its hurricane clearance time by half should it wish to do so. In fact, the Hearing Officer determined that the County's policies approving a 35-hour evacuation clearance time to be reduced to a 30-hour clearance time by the year 2002 and to a 24-hour clearance time by the year 2010, are not in compliance. It has been determined that a 24- hour evacuation clearance time must be achieved in Monroe County in order for the Plan to be in compliance; DeCarion's exception supports rather than opposes this Finding of Fact. (See Findings of Fact 872-891.) The exception is rejected.

Exception 10 - Shelters.

DeCarion takes exception to the Hearing Officer's ruling on its proposed Finding of Fact 52 and 53, parts of which the Hearing Officer found to be unsupported by the weight of evidence. The proposed findings of fact address hurricane shelters, and those portions rejected speak to the County's ability to construct hurricane refuges and the figures used by the County for the amount of space per person needed for such refuges. DeCarion's proposed findings of fact are more in the form of argument than fact and the Hearing Officer's rejection of said proposed findings is supported by the weight of the evidence. As a practical matter, the majority of each of the proposed Findings of Fact at issue in this exception were accepted by the Hearing Officer. The exception is rejected.

Exception 11 - Credibility of Witnesses.

DeCarion takes exception to the Hearing Officer's rejection of certain expert testimony that it alleges was unrebutted by competent substantial evidence in the proceeding below. Issues concerning the credibility of witnesses are to be determined solely by the Hearing Officer. A hearing officer may reject even

unrefuted testimony if it is found not to be credible. F.U.S.A., F.T.P./N.E.A. v. Hillsborough County, 440 So.2d 593 (Fla. 1st DCA 1983). The Ameraquatic case relied upon by DeCarion is not applicable to the facts at issue here. In Ameraquatic vs. DNR, 651 So.2d 114 (Fla. 1st DCA 1995), the Hearing Officer had found the "privately retained expert" testimony to be credible and correct; such is not the case here. Rather, the Hearing Officer simply resolved the factual disputes on the issue of hurricane shelters against DeCarion. (See Findings of Fact 882-904.) The Hearing Officer's evaluation of Mr. Garant's testimony, a registered professional engineer, does not amount to the Hearing Officer donning himself as a government employee non-engineer, as suggested by DeCarion. This exception attempts to reargue legal issues and presents no evidence to indicate that the Hearing Officer's findings should be rejected as not supported by competent substantial evidence. Finally, DeCarion points out that the Hearing Officer determined that a shelter is something different from a refuge for purposes of hurricane protection; ample competent substantial evidence exists in the proceeding below to indicate that there is, in fact, a technical difference between a refuge and a shelter for purposes of providing protection from the elements of a hurricane. (See Transcript Day

7 Vol. II pp. 230, 252, 263-268.) The exception is rejected.

Exception 12 - Commercial Rate of Growth.

DeCarion takes exception to the Hearing Officer's findings with respect to the "commercial ROGO." 1/ This exception merely reargues DeCarion's proposed findings of fact and asserts that the basis for the commercial allocation in the Plan is simplistic, arbitrary and capricious, and fails to use the best available data, but does not demonstrate that the Hearing Officer's findings are not supported by competent substantial evidence. This exception is rejected.

Exception 13 - Transient Residential.

DeCarion takes exception to the Hearing Officer's finding with respect to its challenge to Policy 101.2.6 whereby DeCarion opposes a "five-year moratorium" on transient residential construction in Monroe County, and states that the Hearing Officer concluded that no development was appropriate in Monroe County.

This assertion is incorrect. The Permit Allocation System allocates growth through policies in the Plan, and the Hearing Officer's findings are supported by competent substantial evidence. This exception, asking the Commission to reject a

policy in the Plan without consideration for the substance of the Hearing Officer's findings, is rejected.

Exception 14 - Marina Expansion.

DeCarion takes exception to the Hearing Officer's findings with respect to marina expansion restrictions set forth in the Plan. DeCarion argues that moratoria in general are unconstitutional and that the restriction upon marina expansion in the Plan is arbitrary, capricious and violates substantive due process rights as well as failing to comply with Chapter 163 for lack of supporting data and analysis. A review of Policies

212.4.1 and 212.4.6 indicate that these policies do not impose a moratorium for marinas in Monroe County, rather that new marinas having three or more slips shall be curtailed until a marine survey is completed, marina siting criteria is adopted by the County and approved by the State, and full utilization of existing marinas has occurred within a five mile radius of any proposed new marina site. As a matter of law, moratoria are generally upheld if they meet certain requirements, contrary to DeCarion's assertions. See: Franklin County v. Leisure Properties. Ltd.,

430 So.2d 475 (Fla. 1st DCA 1983); Paradyne Corp. v. Department of Transportation, 528 So.2d 921 (Fla. 1st DCA 1988); Jackson Court Condominiums v. City of New Orleans, 874 F. 2d 1070 (5th Cir. 1989). The Hearing Officer's findings are supported by competent substantial evidence; the exception is rejected.

Exception 15 - Carrying Capacity.

DeCarion appears to take exception to the Hearing Officer's findings that a carrying capacity analysis is required for Monroe County and that any restraints on growth in the County must consider environmental factors. DeCarion argues that no competent substantial evidence was presented to demonstrate that there is an excess of nutrients in nearshore waters in the County, "other than in those isolated canals and in adjoining waters." DeCarion's exception makes an analysis of carrying capacity constraints for an island populated by humans versus an island populated by monkeys; however, the exception does not demonstrate that the Hearing Officer's findings concerning nearshore water quality carrying capacity are unsupported by competent substantial evidence. The exception is rejected.

Exception 16 - Permit Allocation System.

DeCarion takes exception to the Hearing Officer's finding that the Permit Allocation System is in compliance in that these

findings violate Section 380.05(18), F.S. DeCarion states that the Permit Allocation System has "deprived thousands of voters of platted lots, platted prior to 1986, of the absolute right to build a single family home on their lots." In fact, the Permit Allocation System does not deprive property owners of rights to build a single family home on their lots. To the contrary, the evidence below, specifically the provisions of the Plan "Policy Document" (Monroe County Exhibit 1A) at Policy 101.6.1, ensures that the County shall, purchase property for fair market value or permit the "minimum reasonable economic use of the property" under certain conditions. The policy also defines "minimum reasonable economic use" to mean "as applied to any residentially zoned lot of record which was buildable immediately prior to the effective date of the Plan, no less than a single family residence." Moreover, the provision from Section 380.05(18), F.S., which DeCarion cites in support of his request that the Plan be amended, while relevant, is not the legal standard to be applied to this proceeding whereupon the Commission must determine whether the Comprehensive Plan is "in compliance" as defined in Section 163.3184(1)(b), F.S. The exception is rejected.

Exception 17 - Confiscatory Plan.

DeCarion raises an issue but does not take an exception to any finding of fact in the Recommended Order with regard to whether the Comprehensive Plan is a "confiscatory document." Several cases are cited by DeCarion in its exception related to zoning ordinances which are confiscatory in nature, indicating that such are invalid under Florida law. Notably, the document at issue in this proceeding is a comprehensive plan, not a zoning ordinance, and DeCarion's legal analysis is misplaced. Further, the Plan provisions concerning land acquisition, TDRs, opportunities to increase a project score under the Permit Allocation System, mitigation options, and other mechanisms are designed to avoid "as applied" takings in the future. See: Glisson v. Alachua County, 558 So.2d 1030 (Fla. 1st DCA 1990), rev. denied, 570 So.2d 1304 (Fla. 1990). The exception is rejected.

Exception 18 - Substantive Due Process.

DeCarion takes issue with, but does not set forth an exception to a finding of fact in the Recommended Order, the application of the Permit Allocation System to impose a development ban on 90 percent or more of the residentially zoned land in the County [as] a clear deprivation of a property right." Based on a substantive due process argument, DeCarion submits that

the Plan should be remanded to the County with instructions to create an alternative plan using an aggressive traffic management scheme and to construct refuges of last resort to protect persons who cannot or will not evacuate in the face of a major hurricane. As stated above, the Permit Allocation System does not impose a development ban on Monroe County, nor does it operate to deprive Monroe County citizens of their constitutionally protected property rights: it allocates permits. The exception is rejected.

EXCEPTIONS FILED BY UPPER KEYS CITIZENS ASSOCIATION

Exception 1 - Non-residential Contributions to Nearshore Water Quality.

UKCA takes exception 2/ to the Hearing Officer's application of the finding that "the data and analysis in these cases supported the conclusion that the remedial plan's provisions for sanitary sewer and stormwater were inadequate to protect the near shore waters of the Keys." The exception states that the order applies this finding to residential growth but does not apply it to non-residential and commercial growth. UKCA states that misapplication of this conclusion to exclude non-residential and commercial growth is "inconsistent, arbitrary, and capricious." UKCA offers no evidence in support of this exception nor that the finding is not supported by competent substantial evidence. In fact, the Recommended Order's Findings include consideration of non-residential sources of nutrient loading in nearshore waters attributable to sanitary sewer and stormwater

run-off as well. UKCA's exception is rejected. Exception 2 - Ratio of Non-Residential Development.

UKCA takes exception to the finding that the use of a five year period to determine the ratio of non-residential development to residential development for a ten year period is acceptable.

In contradiction, UKCA also states that the Hearing Officer found that the use of a five year period to determine the ratio of non- residential development to residential development for a ten year period is unacceptable. The Hearing Officer's finding is based on competent substantial evidence (see Monroe County Exhibit 1b) and the Recommended Order provides that "policies under Objective 101.3...allow the use of the five year ratio until September 30, 1995, when Monroe County is required to complete an economic base analysis to determine future non-residential development, need and revise the residential and non-residential allocation." UKCA's exception and request for a temporary non-residential moratorium

until the County completes the afore-referenced economic base analysis is rejected.

Exception 3 - Maximum Densities and Intensities.

UKCA takes exception to the Hearing Officer's conclusion that the evidence failed to show that the maximum residential densities, maximum commercial acreage/intensities and maximum industrial acreage/intensities are not supported by data and analysis applied in a professionally acceptable manner. The Hearing Officer found the Monroe County future land use maps (FLUM) based on the 1986 zoning maps to be not in compliance.

UKCA does not seek to have the Commission find the FLUM series to be in compliance. The exception is inconsistent and misplaced; the exception is rejected.

Exception 4 - Carrying Capacity.

UKCA takes exception to the Hearing Officer's finding that the County's adoption of a carrying capacity analysis is required by Chapter 163, F.S., and Chapter 9J-5, F.A.C. UKCA submits that Section 380.0552, F.S., and Rule 9J-5, F.A.C., contain stricter requirements with respect to whether a comprehensive plan complies with all applicable laws regarding water quality and natural resources. However, this is an action under Chapter 163, Part II, F.S., to determine whether the Plan is "in compliance" as defined in Section 163.3184(1)(b), F.S. The provisions of Section 380.0552, while relevant, are not the legal standard by which the compliance determination is to be made. UKCA fails to demonstrate to that the Hearing Officer's finding is not supported by competent substantial evidence or is in consistent with Rule 9J-5; UKCA's exception is rejected.

UKCA takes exception to the definition of "carrying capacity analysis" set forth in Finding of Fact 85. However, the Hearing Officer's definition of carrying capacity is supported by competent substantial evidence from accepted experts as to the definition of a carrying capacity. (See, e.g., Transcript Day 2, Volume I, p. 27; Day 10/5/94, p. 47.) Furthermore, as described above, this proceeding is governed by the provisions of Chapter 163, Part II, F.S., and Rule 9J-5, F.A.C. which provide the legal standards for determining whether the Plan is in compliance, not Section 380.0552 F.S., as argued by UKCA. UKCA's exception is rejected.

Exception 5 - The Coral Reef.

UKCA submits several apparent findings of fact from the Recommended Order in support of its exception that residential/non-residential development cannot occur due to the state of the of marine resources, specifically the coral reef. The Hearing Officer found the coral reef has been impacted by development activities in Monroe County as well as other sources of degradation and concludes at Findings of Fact 308-309 that the deterioration of coral reefs cannot be attributable to impacts of development alone. These findings are supported by competent substantial evidence. Moreover, UKCA does not take exception to these findings of fact, rather it merely points out that the

record contains evidence that the coral community cannot withstand any more development. Therefore, UKCA's "exception" is rejected.

UKCA takes exception to the carrying capacity analysis applied by the Hearing Officer as requiring proof of a far greater level of deterioration to the coral reef than that required by Section 380.0552, F.S. As stated above, this proceeding is governed by the legal standards set forth in Chapter 163, Part II, F.S., and Rule 9J-5, F.A.C.; therefore, UKCA's exception is rejected.

The discussion in the preceding paragraph also applies to UKCA's exception to the Recommended Order's failure to provide special protection to the John Pennekamp State Park, which states that there is no evidence demonstrating how the Plan will promote economic growth with respect to the Park. For the reasons stated above, the exception is rejected.

UKCA takes exception and recommends the Commission to order Monroe County to include maximum negative points in its point allocation for development in areas affecting the coral reef.

UKCA does not demonstrate that The Hearing Officer's Finding of Fact 309 is not supported by competent substantial evidence, that, while the coral reef has suffered deterioration, it is not solely attributable to the impacts of development. UKCA's exception is rejected.

Exception 6 - Coastal High Hazard Area.

UKCA takes exception to the Hearing Officer's acceptance of the Plan's definition of "coastal high hazard area" as areas subject to inundation by the SLOSH model associated with a Category 7 storm. UKCA states that Section 163.3178(2)(h), F.S. (1993), defines coastal high hazard area as the area subject to destruction or severe damage by natural disaster. This alleged definition is consistent with the Hearing Officer's findings,

since an area inundated by action in a Category 1 storm is subject to destruction or severe damage by natural disaster. However, the statute cited provides that "for uniformity and planning purposes" coastal high hazard areas "are defined as Category 1 evacuation zones." UKCA's exception is rejected.

Exception 7 - Transferrable Development Rights.

UKCA takes exception to the Hearing Officer's finding that the evidence failed to show that the Plan fails to require a limitation of the allowable densities and intensities of use in coordination with the transferrable development rights (TDR) system. (See Finding of Fact 1073.) Finding of Fact 1073 is supported by competent substantial evidence. There is insufficient evidence to support UKCA's exception that Monroe County should substitute potential development credits (PDCs) for the current TDR system; the two systems are not mutually exclusive. UKCA's exception is rejected.

Exception 8 - Ruling on Proposed Findings of Fact

UKCA takes exception to the Hearing Officer's refusal to rule on UKCA's proposed Finding of Fact as a result of UKCA's violation of the format requirements for the Proposed Recommended Order.

UKCA submits that the Recommended Order has the effect of dismissing, without the ruling on the merits, several important issues that it had raised. As discussed in the ruling on 1000 Friends Exception 1, the exception is granted and a partial remand is ordered for the limited purpose of ruling on UKCA's proposed findings.

EXCEPTIONS FILED BY THE FLORIDA KEYS CITIZENS COALITION

Exception 1 - Evacuation Clearance Times.

FKCC takes exception to the Hearing Officer's application of the provisions of Rule 9J-5.012(3)(b)7., F.A.C., requiring local government comprehensive plans to maintain or reduce hurricane evacuation clearance times. FKCC cites the Section 163.3178, F.S., requirement that local government comprehensive plans must ensure safe evacuation, quoting such as the "correct and applicable legal standard." As a matter of law, Rule 9J- 5.012(3)(b)7., F.A.C., is intended to implement the safe evacuation standard set forth in the statute ("mitigate the threat to human life"), in that safe evacuation can be ensured by local governments' maintaining or reducing hurricane evacuation clearance times. Section 163.3178(2)(j), F.S. (See also Section

163.3177(6)(g)8., F.S.) FKCC's exception is misplaced and rejected.

Exception 2 - Minimum Clearance Time.

FKCC takes exception to the Hearing Officer's finding that a minimum evacuation goal necessary to protect lives in the Florida Keys should be 24 hours. FKCC argues that the Hearing Officer's finding is arbitrary and capricious but does not demonstrate that it is not supported by competent substantial evidence. FKCC's exception is rejected.

Exception 3 - Temporary Building Moratorium.

FKCC takes exception to the failure of the Recommended Order to provide for a "temporary building permit." It appears from the remainder of the exception that FKCC intended to request that the Order provide for a temporary building moratorium. The Recommended Order does not recommend a moratorium and the Hearing Officer's findings regarding a 24-hour clearance time is supported by competent substantial evidence. FKCC's exception is rejected.

Exception 4 - Economic Growth.

FKCC takes exception to the failure of the Recommended Order to contain findings of fact addressing whether the Plan complies with the Section 380.0552, F.S., requirements to promote economic growth. This proceeding is governed by the legal standards set forth in Chapter 163, Part II, F.S., and Rule 9J-5, F.A.C. The provisions of Section 380.0552 designating the Florida Keys area of critical state concern, while relevant, are not the legal standards by which the Commission determines whether the Plan is "in compliance" as defined in Section 163.3l84(1)(b), F.S. FKCC's exception is rejected.

Exception 5 - Financial Feasibility.

FKCC takes exception to the Recommended Order's failure to conclude that the Plan is not in compliance based upon financial feasibility. (See page 282, Recommended Order.) FKCC's exception as submitted is insufficient to demonstrate that the Hearing Officer's finding is not based upon competent substantial evidence and is rejected.

Exception 6 - Carrying Capacity.

FKCC takes exception to the definition of "carrying capacity analysis" set forth in Finding of Fact 85. However, the Hearing Officer's definition of carrying capacity is supported by competent substantial evidence produced by accepted experts as to the accepted definition of a carrying capacity. (See Transcript Day 2, Vol. I, p. 27; Day 10/5/94, p. 47.) Furthermore, as described above, this proceeding is governed by the provisions of Chapter 163, Part II, F.S., and Rule 9J-5, F.A.C., which provide the legal standards for determining whether the Plan is "in compliance," not Section 380.0552, F.S. FKCC's exception is rejected.

Exception 7 - No Net Gain; Nutrient Loading.

FKCC takes exception to the Hearing Officer's recommendation for a "no net gain" of nutrient loading in order to protect the water quality of nearshore waters in the Florida Keys. Again, FKCC relies on the provisions of Section 380.0552, F.S., in support of its exception, which statute does not provide the legal standards by which the Commission must determine whether the Plan is "in compliance" as defined in Section 163.3184(1)(b), F.S. FKCC's exception is rejected.

Exception 8 - Roadway Level of Service Standards.

FKCC takes exception to the Hearing Officer's "omission of findings with respect to whether Monroe County's decision to accept the level of service designation of "C" for highways as professionally acceptable or not." The Level of Service standard of "C" applied to highways in Monroe County has been accepted by the County and Florida Department of Transportation, but it is not a goal, objective or policy in dispute in this proceeding. The Hearing Officer invalidated a provision of the Commission's proposed rule regarding Level of Service "C" as "marginal" in the final order issued in this consolidated case, which has no bearing on FKCC's exception. FKCC's exception is rejected.

Exception 9 - Mitigation of Wetlands.

FKCC takes exception to the Hearing Officer's finding regarding on-site mitigation of wetlands and states that it violates Rule 9J-5 requirements to restore disturbed wetlands, as well as being inconsistent with other findings of fact with respect to wetlands. (See page 141 of the Recommended Order.) FKCC's exception, however, addresses the provisions of the Commission proposed Rule 28-20.100, F.A.C., which is not at issue

for purposes of this final order or compliance. Section 163.3184(11), F.S. FKCC's exception is rejected.

Order of Remand.

It is hereby ORDERED that this case is partially remanded to the Hearing Officer to rule on the proposed findings of fact of 1000 Friends of Florida and Upper Keys Citizen Association, as specified herein.

Ruling on Motion to Intervene.

Big Pine Key Joint Venture (BPKJV) filed its Motion to Intervene for a Limited Purpose, or in the Alternative, Remand to the Division of Administrative Hearings, on December 6, 1995. The motion is fatally defective for lack of standing because BPKJV was not a participant in the plan adoption process, and therefore does not meet the statutory definition of "affected person." (See: Section 163.3184(1)(a), Florida Statutes.) In fact, BPKJV did not even own the subject property until April 18, 1994. The motion is therefore denied.

Ruling on Intervenor DeCarion's Motion to Strike 1000 Friends of Florida's Response to Exceptions to Recommended Order Filed by the Department of Community Affairs and Decarion.

This motion, filed by Intervenor DeCarion asserts that the subject response by 1000 friends should be struck because the rules do not provide for such pleadings. While it is true that the rule does not provide for parties to file responses to exceptions made by another party, it also does not prohibit such responses. The Commission liberally construes the rule to provide the parties the greatest amount of due process that can reasonably comport with orderly consideration and fairness. The Motion to Strike is therefore denied.

Remedial Actions and Sanctions.

Pursuant to Section 163.3184(11), F.S., the Commission is authorized to specify remedial actions to bring the Plan into compliance and to impose financial and other types of sanctions. In considering remedial actions and the imposition of sanctions, the Commission recognizes the complexity of the issues involved and the diligent work of the parties to reach settlement on the majority of the issues. We also recognize and applaud the commitment and efforts over the recent years of the Monroe County Board of County Commissioners to establish policies and mechanisms

to begin managing growth and development in the Florida Keys in a more appropriate manner than in past decades. We cannot, however, ignore the unique environmental features of the Florida Keys, and the findings and conclusions of the hearing officer.

The environment of the Florida Keys is unique in Florida, the United States and the world. There are 4 National Wildlife Refuges located in the Florida Keys, 22 threatened or endangered species, and a large variety of habitat types; and a 2,800 square- nautical-mile area of waters of the Florida Keys has been designated by the United States as a National Marine Sanctuary.

The geography, geology, hydrology and biology of the Florida Keys is unique in Florida and in the United States. This is why the Florida Legislature designated the Florida Keys as an area of critical state concern. This designation was imposed on the Florida Keys because the Legislature made a decision that the Keys should not be developed in the same manner that other areas of Florida have been and are continuing to be developed. It is important, also, that we recognize that the environment of the Florida Keys is the very essence of Monroe County's economic base. The uniqueness of the environment of the Florida Keys, and the current condition of the environment, must be addressed in any growth management decision for Monroe County.

On the issue of remedial actions, by separate action on this date, the Commission approved and adopted Rule 28-20.100, F.A.C., amending portions of the Monroe County Comprehensive Plan pursuant to our authority as set forth in Section 380.0552(9), F.S. This action, coupled with the Department of Community Affairs final adoption of Rule 9J-14.019 through 9J-14.023, F.A.C., accomplishes many of the remedial actions necessary to bring the Plan into compliance. The remaining remedial actions necessary to bring the Plan into compliance with Chapter 163, Part II, F.S., and for the Plan to be consistent with the Florida Keys Principles for Guiding Development, section 380.0552(7), F.S., are set forth below, and are intended to react to and implement the Recommended Order with appropriate actions necessary for Monroe County to have a growth management comprehensive plan that adequately addresses the unique environment of the Florida Keys, and the critical nature of that environment due to prior decades of unmanaged growth and inadequate standards on the part of both the county and the state.

To that end, the Commission directs the Secretary of the Commission to immediately notice a proposed rule which would amend Monroe County's Comprehensive Plan by adopting those policies set forth below, and any other policies deemed necessary and appropriate, including restrictions on development, consistent

with the Recommended Order. A component of the rulemaking process shall incorporate facilitated negotiation among the parties to this proceeding and the Departments of Environmental Protection, Health and Rehabilitative Services, and Transportation, and the South Florida Water Management District, and any other state or regional agencies necessary to address the issues. This negotiation rulemaking component shall occur contemporaneously with the proposed rule promulgation ordered herein, and the facilitator shall prepare a written report at the end of the negotiation process identifying the extent to which agreements are reached by the parties to the negotiation. The Secretary of the Commission shall select the facilitator.

Policy 3

The implementation dates contained in the Monroe County Year 2010 Comprehensive Plan were determined with a baseline date of October 16, 1992. Due to the extraordinary delay incurred so far in the approval process by the state, and the continued difficulty of predicting the effective date of this Plan, the implementation dates identified in this Policy document shall be interpreted as follows:

1. all dates up to and including June 30, 1993 shall be interpreted to mean "within one year after the effective date of this plan";

2. from July 1, 1993 to September 30, 1996 shall be interpreted to mean "within two years after effective date of this plan"; and

3. all dates from October 1, 1996 and later shall be interpreted to mean "within four years after effective date of this plan".

Once this plan becomes effective, Monroe County shall revise the dates in the Policy Document to be consistent with this policy. Such revisions will constitute a mere change in format, and this shall not require a formal plan amendment.

Policy 5

Monroe County is not required to increase property taxes in order to provide funds necessary to implement this Plan. It is, however, required to commit its reasonably available funds to funding what the Department and Monroe County ultimately agree is Monroe County's reasonable share of the cost of implementation.

Policy 4, above, does not require Monroe County's taxpayers to bear the entire financial burden imposed by the Monroe County 2010

Comprehensive Plan. Monroe County's commitment is limited to its reasonable ability to fund only part of the cost of implementation. To the extent that the state should assist Monroe County and does not, Monroe County is not required to provide such funds.

Policy 101.2.1

Monroe County shall establish a Permit Allocation System for new residential development. The Permit Allocation System shall limit the number of permits issued for new residential development to 88 units per year provided that the hurricane evacuation clearance time does not exceed 24 hours and is an interim allocation approach intended to limit the impacts of nutrient loading pending completion and implementation of the wastewater and stormwater management master plans while ensuring that hurricane evacuation clearance time does not exceed 24 hours. Upon completion and implementation of the master plans, or by year 2002, whichever occurs first, Monroe County shall revise this policy to adjust the allocation based upon environmental and hurricane evacuation constraints and to adjust the allocation to account for permits and vested units in the City of Key West. 1/

BASIS FOR INTERIM ALLOCATION

This interim approach allocates development capacity consistent with the following hurricane evacuation clearance time data.

Baseline Clearance Time 21.25 hours Improved Card Sound Rd w/40 percent diversion

One northbound lane on 18 Mile Stretch (US1)

Two northbound lanes mm 80-90 (traffic controls) 1990 Census data fully incorporated

2010 Clearance Time Policy 24.0 hours

Reserve Capacity for Development 2.75 hours

Developable units per hour 2020 d.u./hour

Equivalent Developable Units 5,555 d.u. Total d.u. permitted 4/1/90-12/31/94 (County wide) 3,633 d.u.

Balance of Developable Units

(Not including vested units in municipalities) 1922 d.u. Allocation to Municipalities (31 percent)

(subject to future adjustment for vested units

in municipalities) 596 d.u.

Net Allocation to County 1326 d.u. Annual County rate over 15 years(1995-2010) 88.4 d.u./year

Policy 101.5.4(6)(a)

(6) Habitat Protection

(a) Points shall be assigned to Allocation Applications for proposed dwelling unit(s) based on the type and quality of existing vegetation located within the area of approved clearing shown on the approved site plan:

Weighting Category Criteria

Major Negative Habitat Type/Habitat Quality Group 4:

High Hammock (high quality) Low Hammock (high quality) Pineland

Undisturbed Beach/Berm

Saltmarsh and Buttonwood Wetlands Palm Hammock

Cactus Hammock

Disturbed Salt Marsh and Buttonwood

Moderate Negative Habitat Type/Habitat Quality Group 3:

High Hammock (moderate quality) Low Hammock (moderate quality)

Minor Negative Habitat Type/Habitat Quality Group 2:

High Hammock (low quality) Low Hammock (low quality)

Disturbed Salt Marsh and Buttonwood Disturbed Beach/Berm

Minor Positive Habitat Type/Habitat Quality Group 1:

Disturbed with exotics

Policy 101.5.5(5)(a)

(5) Habitat Protection

(a) Points shall be assigned to Allocation Applications for proposed non-residential development based on the

type and quality of existing vegetation located within the area of approved clearing shown on the approved site plan.

Weighting Category Criteria

Major Negative Habitat Type/Habitat Quality Group 4:

High Hammock (high quality) Low Hammock (high quality) Pineland

Undisturbed Beach/Berm

Salt Marsh and Buttonwood Wetlands Palm Hammock

Cactus Hammock

Disturbed Salt Marsh and Buttonwood

Moderate Habitat Type/Habitat Quality Group 3:

Negative High Hammock (moderate quality) Low Hammock (moderate quality)

Minor Habitat Type/Habitat Quality Group 2:

Negative High Hammock (low quality) Low Hammock (low quality)

Disturbed Salt Marsh and Buttonwood Disturbed Beach/Berm

Minor Habitat Type/Habitat Quality Group 1:

Positive Disturbed with exotics Policy 101.5.7(2)

Traffic Capacity - As part of the first annual review of the Residential and Non-Residential Point System, positive points may be assigned for development served by US 1 segments which have surplus capacity. Negative points may be assigned for development served by US 1 segments which have marginal capacity.

Policy 101.6.5

Monroe County shall annually compile a list prioritizing the lands requested for County acquisition due to the Permit Allocation System. The lands of the property owners who meet the criteria in Policy 101.6.1 shall be ranked according to:

1. the environmental sensitivity of the vegetative habitat, marine resources, and impacts to the quality of nearshore waters as specified by the ranking in the Environmental Design Criteria section of the

   Land Development Regulations;

2. whether the property is in known, probable, and/or potential habitat for one or more threatened and/or endangered species, as indicated on the most recent Protected Animal Maps; and

3. Whether development on the property will adversely impact successful protection and recovery of threat- ened or endangered species, such as development on

Big Pine Key, No Name Key, Ohio Key, and North Key Largo.

Those lands considered most sensitive according to the combination of (a), (b) and (c) above shall be ranked as the highest priority for acquisition.

Objective 101.9

Monroe County shall provide for drainage and stormwater management so as to protect real and personal property and to protect and improve water quality. [9-5.006(3)(b)4]

Policy 101.9.4

By September 30, 1995, Monroe County in coordination with the South Florida Water Management District (SFWMD) and the Florida Department of Environmental Protection (DEP), shall complete a Stormwater Management Master Plan. This plan shall identify improvements required to attain adopted levels of service for all existing and proposed land uses. (See Drainage Objective 1001.3 and related policies.) Prior to completion of the Stormwater Management Master Plan, but in no case later than one (1) year from the effective date of this plan, the County shall adopt land development regulations requiring xeriscape landscaping standards and other low maintenance landscaping requirements (including native vegetation at a ratio of 70 percent) in order to reduce fertilizer runoff into nearshore waters. [9J-5.006(3)(C)4]

Policy 101.13.6

In conjunction with the first annual review of the Point System, parcels within the following habitats and land use districts shall be designated as sender sites for Transferable Development Rights (TDRs) and Potential Development Credits (PDCs):

Any parcel within these zoning categories:

Offshore Island (OS) Sparsely Settled (55)

Mainland Native (MN) Parks and Refuge (PR)

Native (NA) Conservation (C) Suburban Residential (SR) (undisturbed habitat)

Habitat of the following types which lie within any zoning category:

Freshwater wetlands

Salt Marsh/Buttonwood wetlands High quality high hammock

High quality low hammocks Moderate quality high hammock Moderate quality low hammock High quality pinelands

Low quality pinelands Beach/berm

Palm Hammock Cactus Hammock Disturbed Wetlands

Policy 101.13.8

In conjunction with the first annual review of the Point System, the following guidelines shall be used to establish positive point awards in the Residential Permit Allocation System of each PDC:

not to include wetlands) least points

Objective 103.1

Monroe County shall regulate future development and coordinate the provision of public facilities on Big Pine Key and No Name Key, consistent with the Goals, Objectives, and Policies of this Comprehensive Plan in order to:

1. protect the Key deer (Odocoileus virgiianus clavium)

2. preserve and enhance the habitat of the Key deer; and

3. limit the number of additional vehicular trips from other islands to Big Pine Key; and

4. maintain the rural, suburban, and open space character

   of Big Pine Key.

5. prevent and reduce adverse secondary and cumulative impacts on Key Deer.

   
   

   [9J-5.006(3)(b)1 and 4]

   
   

   Policy 103.1.1

   
   

   The purpose of this policy is to ensure the long-term viability of the Key deer through the creation of a Habitat Conservation Plan (HCP) that complies with the Federal Endangered Species Act. It is recognized that the viability of the endangered Key deer depends on the control of both direct (primary) and indirect (secondary) impacts resulting from development. The adoption of an HCP is intended to address and ameliorate these impacts by determining the amount of development that can occur on Big Pine Key and No Name Key; by specifying the location of such development; by specifying measures such as road improvements to limit roadkills; by specifying measures to regulate fencing; by directing an aggressive acquisition effort; and by proposing any other necessary measures to prevent unacceptable direct and indirect impacts that could adversely impact the long-term viability of the deer. The HCP shall incorporate the findings of the current FDOT study which is directed at minimizing Key deer mortality resulting from vehicular collisions.

   
   

   Pending the completion of the HCP, development may be allowed only in accordance with the following criteria:

   
   

   1. Redevelopment and development activities which do not generate new vehicular trips and do not result in loss of habitat;

   2. Public facilities and utilities which are necessary to ensure public health and safety and which cannot otherwise be provided without facility location on Big Pine Key and No Name Key.

   3. Single family housing units and mobile home units not to exceed eight (8) per year, including affordable housing units provided that the units are located as follows:

      1. the units are not located within habitat areas including pinelands, beach berms, hammocks, wetlands and disturbed habitats;

      2. the units are located within existing subdivisions which are fully improved and more than 50 percent built-out as of the effective date of this Plan. Fully improved means that

         the entirety of the subdivision is served by paved roads, water lines, and electric lines;

      3. the units are not located within designated corridors utilized by the Key deer; and

      4. the units are located south of South Blvd.

Policy 103.1.5

By September 30, 1993, Monroe County shall document the freshwater lens systems and associated recharge areas on Big Pine Key.

Special measures shall be implemented to protect the quantity and quality of groundwater recharge to the freshwater lenses. No new commercial use of the freshwater lens shall be allowed. (See Natural Groundwater Aquifer Recharge Element Objective 1101.3 and related policies.) [9J-5.012(3)(c)1; 9J-5.013(2)(c)5 and 6] Any expansion of existing commercial development shall use FKAA water supplies rather than using other water sources which will negatively impact freshwater resources needed by the Key Deer.

Should FKAA water supplies not be available, expanding commercial development shall utilize alternative sources, such as cisterns. Notwithstanding any other provision of this Plan, all residential and commercial development on Big Pine Key shall be required to discontinue use of the freshwater lens no later than January 1, 2000.

Policy 103.1.10

Upon adoption of the Comprehensive Plan, Monroe County shall require that the following analyses be undertaken prior to finalizing plans for the siting of any new public facilities or the significant expansion (greater than 25 percent) of existing public facilities required to support development on Big Pine Key or No Name Key:

1. assessment of needs;

2. evaluation of alternative sites and design alternatives for the selected sites; and

3. assessment of impacts on surrounding land uses and natural resources.

The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach/berm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality hammocks and

pineland), habitats of species considered to be threatened or endangered by the state and/or federal governments, offshore islands, and Conservation Land Protection Areas.

Monroe County shall require that public facilities be developed consistent with the criteria described in Policy 103.1.1 and shall support, wherever possible, the location of public facilities off of Big Pine Key and No Name Key. Monroe County shall deny approval of any public or private development proposed for Big Pine Key or No Name Key if the development would generate more than 100 trips per 1000 square feet per day or attract more than

25 vehicular trips per 1000 square feet per day or a total of 100 vehicular trips per day from beyond Big Pine Key or No Name Key.

Policy 103.1.13

Monroe County, in conjunction with the FWS, shall implement activities to prohibit the destruction of the federally-designated endangered Key deer and to protect its habitat by addressing:

1. enforcement of animal control laws;

2. incorporation of management guidelines into development orders;

3. construction of fences;

4. roadside management techniques;

5. feeding laws;

6. speed limit enforcement;

7. removal of invasive plants;

8. distribution of management guidelines to private landowners;

9. attainment of Key deer management objectives, and (See Conservation and Coastal Management Objective

   207.7 and supporting policies.) [9J-5.012(3)(b)1; 9J-5.013(2)(b)6]

10. secondary and cumulative impacts by, among other things, adopting and implementing appropriate land development regulations.

    
    

    Policy 204.2.4

    
    

    Notwithstanding other provisions of this comprehensive plan regarding disturbed wetlands, no development activities shall be allowed in wetlands pending completion of the ADID program (referenced in Policy 204.1.1, above) or other similar functional assessment of disturbed wetlands in the County. The ADID or other similar program shall assess the functional value of disturbed wetlands in the County and develop an evaluation index to

    determine the appropriate level of development for disturbed wetlands. Upon completion and adoption of the functional assessment, it shall be incorporated into the plan, along with a functional definition of disturbed wetlands, by plan amendment.

    
    

    Policy 212.5.2

    
    

    Except as provided herein, siting of single family docks, boat ramps and boat slips on man-made water bodies shall require minus four (-4) feet mean low water (MLW) depths at the terminal end.

    These structures must have continuous access to open water at depths of minus four (-4) feet (MLW) or greater over a channel width of twenty (20) feet, or access to open water via a marked, federally and state approved navigation channel.

    
    

    1. Docking facilities may be developed on any shoreline if there is a mean low water depth of at least minus four (4) feet at the terminal end of the docking facility, and continuous access to open water; or

    2. Docking facilities may be developed on the shoreline of lots in a subdivision if the docking facility is located in a channel or canal which was dredged before 1986, and if there is a mean low water depth of at least minus four (4) feet at the terminal end of the docking facility.

For purposes of this policy, "open water" means the portion of the straits of Florida, Florida Bay, the Gulf of Mexico, or the Atlantic Ocean which consists of an uninterrupted expanse of water deeper than four (4) feet at mean low water; and "continuous access" means a natural passage or an existing man-made channel no shallower than four (4) feet at mean low water and no narrower than twenty (20) feet.

Objective 213.1

Monroe County shall maintain and increase the amount of public access to the beach or shoreline consistent with the estimated public need and environmental constraints. [9J-5.012(3)(b)9]

Policy 213.1.2

By September 30, 1994, Monroe County shall adopt Land Development Regulations which:

1. implement recommendations of the Public Access Plan;

2. provide for the enforcement of public access to beaches

   renourished at public expense by prescription, prescriptive easement, or any other legal means;

3. provide for the enforcement of public access requirements of the Coastal Zone Protection Act of 1985

4. specify standards for transportation and parking facilities for beach and shoreline access.

5. include environmental design criteria which reflect environmental constraints. [9J-5.012(3)(c)9]

Policy 215.2.3

No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. Following completion of the ADID or other similar functional analysis referenced in Policy 901.5.7, Monroe County shall determine whether public expenditures shall be made for new or expanding public facilities in disturbed wetlands, and shall adopt Land Development Regulations to further implement this policy.

Policy 216.1.1

Within one year of the effective date of this plan, Monroe County shall adopt Land Development Regulations which establish a Permit Allocation System for new residential development. The Permit Allocation System shall limit the number of permits issued for new residential development to be consistent with the Future Land Use Element in order to maintain hurricane evacuation clearance times at a maximum of 24 hours (see Land Use Objective 101.2 and supporting policies.) [9J-5.12(2)(c)4]

Policy 216.1.16

Monroe County shall coordinate with the Florida Department of Transportation (FDOT) to ensure that US 1 roadway capacity improvements necessary to maintain hurricane evacuation clearance time at 24 hours, including but not limited to improvements to US

1 between MM 80 and MM 90, are completed. See Traffic Circulation Policy 301.7.3. [9J-5.012(3)(c)4]

Policy 901.2.9

Program costs of phase I of the inspection/compliance program may be funded through federal and state sources. Program costs of Phase 2 shall be funded by a special assessment through the Municipal Service District special taxing district. The property owner shall be responsible for funding the replacement and/or improvement of illegal systems and the repair of inoperative systems.

Objective 901.4

By September 30, 1994, Monroe County shall prepare a Sanitary Wastewater Master Plan to determine the required levels of service and type of treatment for all developed and undeveloped areas in Monroe County with the intent to establish more stringent nutrient limiting standards as necessary to prevent degradation and ensure improvement of ground, confined, nearshore and offshore waters.

The interim levels of service for sanitary sewer shall be superseded as relevant components of the Master Plan are adopted. [9-5011(2)(b)1 and 2, 9J-5.011(2)(c)1, 9J-5.013(2)(b)2, 9J-

5.013(2)(c)1, 5, and 6, 9J-5.015(3)(b)1, 9J-5.016(4)(a)]

Policy 901.5.7

Pending the completion and implementation of the ADID or other similar functional analysis, Monroe County shall prohibit the use of OSDS in buttonwood, salt marsh or wetland area and require the provision of a buffer between OSDS and wetlands. Following completion of the ADID or other similar functional analysis, Monroe County shall determine whether OSDS may be used in disturbed wetlands based on functional assessment and shall adopt Land Development Regulations to further implement this policy.

Policy 1001.1.1

Water Quality Level of Service Standards - Minimum Water Quality:

1. All projects shall be designed so that the discharges will meet Florida State Water Quality Standards as set forth in Chapters 17-25 and 17-302, F.A.C. In addition, all projects shall include an additional 50 percent of the water quality treatment specified below, which shall be calculated by multiplying the volumes obtained in Section (a) by a factor of 1.5. Retention/Detention Criteria (SFWMD Water Quality Criteria 3.2.2.2):

   1. Retention and/or detention in the overall system, including swales, lakes, canals, greenways, etc., shall be provided for one of the three following criteria or

      equivalent combinations thereof:

      1. Wet detention volume shall be provided for the first inch of runoff from the developed project, or the total runoff of 2.5 inches times the percentage of imperviousness, whichever is greater.

      2. Dry detention volume shall be provided equal to 75 percent of the above amount computed for wet detention.

      3. Retention volume shall be provided equal to

         50 percent of the above amounts computed for wet detention.

   2. Infill residential development within improved residential areas of subdivisions existing prior to the adoption of this comprehensive plan must ensure that its post-development stormwater run-off will not contribute pollutants which will cause the runoff from the entire improved area or subdivision to degrade receiving water bodies and their water quality as stated above.

   3. New Development and Redevelopment projects which are exempt from the South Florida Water Management District permitting process shall also meet the requirements of Chapter 40-4 and 40E-40, F.A.C.

On the issue of sanctions, we conclude that, at this time, imposing financial or other sanctions authorized by section 163.3184(11), F.S., would serve no beneficial purpose, and we decline to impose these types of sanctions upon Monroe County at this time. We do, however, retain jurisdiction over this matter for the purposes of enforcing this Order and ensuring that, within a reasonable amount of time, a comprehensive plan is in place that adequately protects the fragile environment of the Florida Keys and protects the health, safety and welfare of its citizens and visitors. We conclude that this is a matter of the utmost importance and urgency. If we determine that additional measures are necessary to implement the Recommended Order, the Commission may at any time review the matter for implementation of full sanctions available under Section 163.3184, Florida Statutes, and such other measures as may be necessary and appropriate under Chapters 163 and 380, F.S., including but not limited to emergency action imposing a full or partial reduction in new development orders or permit allocation awards issued by Monroe County.

Any party to this order has the right to seek judicial review of the order pursuant to section 120.66, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules

of Appellate Procedure, with the Clerk of the Commission, Office of Planning and Budgeting, Executive Office of the Governor, the Capitol, Room 2105, Tallahassee, Florida 32399-0001; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the appropriate District Court of Appeal. Notice of Appeal must be filed within 30 days of the day this Order is filed with the Clerk of the Commission.

DONE and ORDERED this 12th day of December, 1995.

ROBERT B. BRADLEY, Secretary Administration Commission

FILED with the Clerk of the Administration Commission on this 12th day of December, 1995.

CLERK, Administration Commission

ENDNOTES

1/ In addition to the Permit Allocation System established in Policy 101.2.1, the County has adopted a Dwelling Unit Allocation Ordinance as a land development regulation to implement its permit allocation system. The Dwelling Unit Allocation Ordinance is commonly referred to as "ROGO" (for "rate of growth ordinance") in Monroe County. While the Plan does not include ROGO, it does include a commercial permit allocation and point system to which DeCarion likely refers.

2/ In their exceptions, neither UKCA nor FKCC identifies findings of fact by number to which exception is taken.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered to the following parties by U.S. Mail or hand delivery this 12th day of December, 1995.

Robert B. Bradley, Secretary

Administration Commission

Honorable Lawton Chiles Honorable Sandra Mortham Governor Secretary of State

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Honorable Bob Butterworth Honorable Frank Brogan Attorney General Commissioner of Education

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Honorable Bob Crawford Greg Smith, Esquire Commissioner of Agriculture Counsel to Governor & Cabinet The Capitol The Capitol, Room 209 Tallahassee, Florida 32399 Tallahassee, Florida 32399

Stephanie M. Gehres, Esquire Dan Stengle, General Counsel Department of Community Affairs Dept. of Community Affairs 2796 Overseas Highway 2740 Centerview Drive

Suite 212 Tallahassee, Florida 32399-2100

Marathon, Florida 33050

Robert C. Apgar, Esquire Richard Grosso, Legal Director David A. Theriaque, Esquire 1000 Friends of Florida

Apgar, Pelham, Pfeiffer, Civil Law Clinic

& Theriaque NOVA Southeastern University 909 East Park Avenue 3305 College Avenue Tallahassee, Florida 32301 Ft. Lauderdale, Florida 33314

David White, Esquire Nancy Carroll Brown, President National Wildlife Federation Friends of the Everglades, 1401 Peachtree St., N.E. Inc.

Suite 240 9220 Southwest 166th Street

Atlanta, GA 30309 Miami, Florida 33157

Dagny Johnson, President Debra S. Harrison Upper Keys Citizens Florida Keys Associate

Association, Inc. The Wilderness Society 95,600 Overseas Highway 8065 Overseas Highway Key Largo, Florida 33037 Marathon, Florida 33050

James S. Mattson, Esquire Florida Keys Citizens Andrew M. Tobin, Esquire Coalition, Inc.

Post Office Box 586 Post Office Box 432110

Key Largo, Florida 33037 Big Pine Key, Florida 33043-2110

Virginia B. Wetherell, Secretary Larry J. Sartin Department of Environmental Hearing Officer

Protection Division of Administrative Marjory Stoneman Douglas Bldg. Hearings

3900 Commonwealth Blvd. The DeSoto Building Tallahassee, Florida 32399-2400 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Greg Goldfarb, Esquire Edward Feaver, Secretary

19 West Flagler Street Department of Health and Suite 707 Rehabilitative Services Miami, Florida 33130 1317 Winewood Blvd.

Tallahassee, Florida 32399-0700

Mr. Tilford Creel Ronald L. Weaver, Esquire

Executive Director Stearns Weaver Miller Weissler South Florida Water Management Alhadeed & Sitterson, P.A.

District Post Office Box 3299 Post Office Drawer 24680 Tampa, Florida 33601 West Palm Beach, FL 33416-4680

John Kostyack, Esquire Michael Wm. Morell, Esquire National Wildlife Federation 310 West College Avenue 1400 16th Street, N.W. Suite 222

Washington, DC 20036 Tallahassee, Florida 32301

Ben Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Road

Tallahassee, Florida 32399-0450

Attachments CERTIFICATION OF

THE ADMINISTRATION COMMISSION RULE FILED WITH THE

DEPARTMENT OF STATE

I do hereby certify:

[x] (i) The time limitations prescribed by subsection 120.54(11)(a), F.S. have been complied with; and

[x] (2) There is no administrative determination under paragraph 120.54(4), F.S., pending on any rule covered by this certification; and

[x] (3) All rules covered by this certification are filed within the prescribed time limitations of paragraph 120.54(11)(b),

F.S. They are filed not less than 28 days after the notice required by subsection 120.54(1), F.S.7 and;

[ ] (a) Are filed not more than 90 days after the notice; or [ ] (b) Are filed not more than 90 days after the notice not

including days an administrative determination was pending; or

[x] (c) Are filed within 21 days after the adjournment of the final public hearing on the rule; or

[ ] (d) Are filed within 21 days after the date of the receipt of all material authorized to be submitted at the hearing; or

[ ] (e) Are filed within 21 days after the date tile transcript was received by this agency.

Attached are the original and two copies of each rule covered by this certification. The rules are hereby adopted by the undersigned agency by and upon their filing with the Department of State.

28-20.025 380.0552(9), F.S. 380.0552, F.S.

Under the provisions of paragraph 120.54(13)(a), F.S., the rule takes effect 20 days from the date filed with the Department of State or at a later date as set out below:

Effective: . (filed with DOAH undated)

Robert B. Bradley, Secretary Administration Commission

54

Number of Pages Certified

SUMMARY OF RULE

The purpose of the amendments to Rule 28-20.025, Florida Administrative Code, is to adopt amendments to the Monroe County Land Development Regulations, pursuant to sections 380.0552(9), F.S.

These amendments to the Monroe County Land Development Regulations address development controls which adequately protect hammocks, pinelands, wetlands, marine resources and water quality, and dock siting policies.

SPECIFIC AUTHORITY: 380.0552(9), Florida Statutes.

LAW IMPLEMENTED: 380.0552, Florida Statutes.

STATE OF FLORIDA ADMINISTRATION COMMISSION

RULE 28-20

Statement of Facts and Circumstances Justifying Adoption of the Rule Amendments:

Pursuant to section 380.05(8), F.S., "if any local government fails to submit land development regulations or a local comprehensive plan within 180 days after the Commission adopts a rule designating an area of critical state concern, or if the regulations or plan submitted do not comply with the principles for guiding development set out in the rule designating the area of critical state concern, in either case, within 120 days, the state land planning agency shall submit to the Commission recommended land development regulations and a local comprehensive plan or portions thereof applicable to that local government's portion of the area of critical state concern", and section 380.0552(9), F.S., "the state land planning agency, after consulting with the appropriate local government, may, no more

often that once a year, recommend to the Administration Commission the enactment, amendment, or recision, of land development regulation or element of a local comprehensive. Within 45 days following the receipt of such recommendation by the state land planning agency, the commission shall reject the recommendation, or accept it with or without modification and adopt it, by rule, including any changes." On August 31, 1993, in accordance with these requirements, the DCA submitted to the Administration Commission portions of the Monroe County Comprehensive Plan and the Land Development Regulations, adopted by Monroe County on May 3, 1993, for the Florida Keys Area of Critical State Concern. The portions of the Monroe County Comprehensive Plan that DCA recommends the Commission approve and adopt are consistent with Monroe County's Comprehensive Plan as it relates to the Florida Keys Area of Critical State Concern. On September 28, 1993, the Administration Commission initiated rulemaking and scheduled three public hearings, to be conducted in the Florida Keys, on November 2, 3, and 4, 1993. The proposed rule was challenged. A Notice of Change for Rule 28-20.025 was published on July 8, 1994. The Notice of Change was challenged. At the conclusion of the administrative hearing the Division of Administrative Hearings issued a Final Order on August 7, 1995, finding portions of the proposed rule amendments to be an invalid exercise of legislative authority. A final public hearing was conducted on December 12, 1995, and the Administration Commission approved and adopted those port ions of the Proposed rule amendments that were found valid and simultaneously approved a Notice of Withdrawal for those portions determined invalid. The Notice of Withdrawal will be published in the December 22, 1995, Florida Administrative Weekly.

SUMMARY OF HEARINGS

The Commission published a Notice of Proposed Rulemaking scheduling public hearings for November 2, 3, and 4, 1993. The proposed rule was challenged. A Notice of Change was published July 8, 1994, for Rule 28-20.025. This Notice of Change was challenged. The Division of Administrative Hearings entered a Final Order on August 7, 1995, finding portions of the proposed rule an invalid exercise of delegated legislative authority.

The final public hearing was held on December 12, 1995, in Tallahassee, Florida, before the Governor and Cabinet, sitting as the Administration Commission. The Administration Commission approved and adopted those portions of the proposed rule determined to be valid by the Hearing Officer, and Simultaneously approved a Notice of Withdrawal for those portions determined

invalid. The Notice of Withdrawal will be published in the December 22, 1995, Florida Administrative Weekly.

FEDERAL COMPARISON STATEMENT

Land Planning Regulations for Rule 28-20.025, the Florida Keys Area of Critical F.A.C.

State Concern Monroe County

Fourth Administration Commission Rule 28-20.025, Amendments to Land Development F.A.C. Regulations

A federal rule on the same subject as that covered by the adoption of these rule amendments does not exist.

THE FULL TEXT OF THE RULE:

28-20.025 Land Development Regulations.

1. Section 9.5-4 (A-2), Monroe County Code, Definitions, is amended to read as follows:

   
   

   (A-2) Accessory uses or Accessory structures means a use or structure that is subordinate to and serves a principal use or structure; is subordinate in area, extent and purpose to the principal use or structure served; contributes to the comfort, convenience or necessity of occupants of the principal use or structure served; and is located on the same lot or on contiguous lots under the same ownership and in the same land use district as the principal use or structure. Accessory uses include the utilization of yards for home gardens provided that the produce of the garden is for noncommercial purpose; however, in no event shall an accessory use or structure be construed to authorize a use or structure not otherwise permitted in the district in which the principal use is located, and in no event shall an accessory use or structure be established prior to the principal use to which it is accessory. Accessory uses shall not include guest units or any other potentially habitable structure. Habitable structures are considered to be dwelling units as defined below in this section.

   
   

2. Section 9.5-4(C), Monroe County Code, Definitions, is amended to add new definitions to be inserted in alphabetical order to read as follows:

   (C- ) Commercially exploited means native plants so designated by the Florida Department of Agriculture as listed in the Preservation of Native Flora of Florida Act, Section 581.185- 187, Florida Statutes, as amended from time to time.

   
   

   (C- ) Construction impact zone means the area to be deducted from the buildable area of a parcel in order to allow for clear working area during construction activities and which shall include a perimeter of at least five feet around the proposed structure as measured from the drip line or the outermost point of the structure.

   
   

   [Renumber subsequent paragraphs]

   
   

3. Section 9.5-4(D), Monroe County Code, Definitions, is amended to add a new definition to be inserted in alphabetical order to read as follows:

   
   

   (D- ) Dock or Docking facility means a fixed or floating structure built and used for the landing, berthing, and/or mooring of vessels or water craft either temporarily or indefinitely.

   Docking facilities include but are not limited to wharves, piers, quays, slips, basins, ramps, posts, cleats, davits, piles or any other structure or attachment thereto. For the purposes of this chapter, docks shall not include "water access walkways" as defined below In this section.

   
   

   [Renumber subsequent paragraphs]

   
   

4. Section 9.5-4(D-30), Monroe County Code, Definitions, is amended and renumbered to read as follows:

   
   

   (D- ) Dwelling unit means one or more rooms physically arranged to create a housekeeping establishment for occupancy by one family with separate toilet facilities. The abbreviation DU shall mean "dwelling unit."

   
   

5. Section 9.5-4(I), Monroe County Code, Definitions, is amended to add a new definition to be inserted in alphabetical order to read as follows:

   
   

   (I- ) Intertidal Zone or Intertidal means the area between the highest high tide and the lowest low tide of an average annual tide.

   
   

   [Renumber subsequent paragraphs]

6. Section 9.5-4(M), Monroe County Code, Definitions, is amended to add new definitions to be inserted in alphabetical order to read as follows:

   
   

   (M- ) Mean high water line or mean high tide (MHW) means the point to which water extends onto the shoreline at average daily high tide as indicated by physical evidence on site such as discoloration, vegetative indicators or wrack lines.

   
   

   (M- ) Mean low water line or mean low tide (MLW) means the point to which water extends onto a shoreline at average daily low tide as indicated by physical evidence on site such as discoloration, or vegetative indicators.

   
   

   [Renumber subsequent paragraphs]

   
   

7. Section 9.5-4(0-3), Monroe County Code, Definitions, is amended to read as follows:

   
   

   (0-3) Open space means that portion of any parcel or area of land or water which is required to be maintained such that the area within its boundaries is open and unobstructed from the ground to the sky.

   
   

8. Section 9.5-4(R), Monroe County Code, Definitions, is amended to add a new definition to be inserted in alphabetical order to read as follows:

   
   

   (R- ) Regionally important plant species means those native plant species identified as endemic, uncommon, or rare in the county's regionally important plant species list maintained by the Department of Environmental Resources or as identified by the Center for Plant Conservation, the Florida Natural Areas Inventory, or the Florida Committee on Rare and Endangered Plants and Animals.

   
   

   [Renumber subsequent paragraphs]

   
   

9. Section 9.5-4(5-1), Monroe County Code, Definitions, is amended to read as follows:

   
   

   (S-1) Salt marsh and buttonwood wetlands means two (2) plant associations that are sometimes collectively or individually referred to as the "transitional wetland zone." The salt marsh community is a wetland area subject to tidal influence, and the vegetation is dominated by nonwoody groundcovers and grasses. The

   vegetation may include but is not limited to the following nonwoody species:

   
   

   Sporobolus virginicus Dropseed

   Batis maritima Saltwort

   Distichlis spicata Salt grass

   Monanthochloe Key grass

   Salicornia spp. Glasswort

   Sesuvium portulacastrum Sea purslane

   Spartina spartinae Cordgrass

   Fimbristylis castanea Chestnut sedge

   
   

   Woody vegetation that may be present includes the three (3) species of mangroves, as well as buttonwood (Conocarpus erectus); however, the salt marsh community is distinguished by the dominance of nonwoody plants, and the woody species have a coverage of less than forty (40) percent. The salt marsh community may be associated and intermixed with areas of almost bare ground on which the vegetation may be limited to mats of periphyton. The buttonwood wet land is a wetland that is usually present in the more landward zone of the transitional wetland area, and may intermix with more upland communities. The vegetation may include (but is not limited to) the following species:

   
   

   Sporobolus virginicus Dropseed

   Borrichia spp. Sea oxeye daisy

   Bumelia celastrina Saffron plum

   Coccoloba uvifera Sea grape

   Conocarpus erectus Buttonwood

   Erithalis fruticosa Black torch

   Fimbristylis castanea Chestnut sedge

   Jacquinia keyensis Joewood

   Lycium carolinianum Christmas berry

   Maytenus phyllanthoides Mayten

   Spartina spartinae Cordgrass

   
   

   The buttonwood wet land is distinguished from the salt marsh wetland by the dominance of buttonwood trees, usually occurring as an open stand that permits the growth of an understory of groundcovers and shrubs. The buttonwood wetland is, in turn, distinguished from more upland communities by the presence of graminoids and halophytic groundcovers under its open canopy, and generally by the lack of an appreciable layer of humus and leaf litter. As referenced throughout these regulations, "Salt marsh and Buttonwood" habitat refers collectively and individually to

   "salt marsh" and "buttonwood" habitats for the purpose of determining regulatory requirements.

   
   

10. Section 9.5-4(S), Monroe County Code, Definitions, is amended to add a new definition to be inserted in alphabetical order to read as follows:

    
    

    (S- ) "Shoreline" means the interface between land and water, extending seaward of mean high water to include fringing mangroves and adjacent shelf and may also include a transitional zone landward of mean high water (MHW).

    
    

    1. "Altered shorelines" are generally located directly along dredged canals, basins and abutting channels and have been modified to such a degree that the shoreline no longer exhibits those functions typical of natural shorelines including filtra- tion, nutrient uptake, shoreline stabilization, storm surge abatement, and provision of habitat for wildlife and fisheries. A shoreline is not "altered" unless the functional characteris- tics of both the transitional zone and the zone seaward of mean high water have been altered.

       
       

    2. "Unaltered shorelines" are generally located along natural non-dredged waterways and open water. These shorelines continue to exhibit the natural functions cited above even though fill or rip-rap may be present either above or below MHW.

       
       

       [Renumber subsequent paragraphs]

       
       

11. Section 9.5-4(W), Monroe County Code, Definitions, is amended to add a new definition to be inserted in alphabetical order to read as follows:

    
    

    (W- ) Water access walkway means a structure built and used exclusively for access to the water for leisure activities such as fishing, swimming, or observation, but by its design may not be used as a dock. Water access walkways shall conform to the design criteria in Section 9.5-345 of this chapter.

    
    

    [Renumber subsequent paragraphs]

    
    

12. Section 9.5-55(c), Monroe County Code, Development permitted as of right, is amended to read as follows:

    
    

    (c) Action on the Application: If the director of planning determines that the proposed development is in compliance with all requirements of the County Code and the Monroe County

    comprehensive plan, and the building official determines that it is in compliance with the Standard Building Code and the applicant for development approval has been awarded a certificate of compliance, the building official shall issue a building permit with or without conditions.

    
    

13. Section 9.5-82, Monroe County Code, General standards for plat approval, is amended to add the following:

    
    

    1. Lands within the IS, URN, and CFV districts shall not be platted, replatted or otherwise reconfigured in any manner that would allow the number of proposed lots or units to exceed the number of parcels that lawfully existed as of September 15, 198E.

       
       

    2. All open space required for a tract of land shall be preserved as dedicated open space for each individual habitat type through the use of a conservation easement or a similar legal instrument.

    
    

14. Sections 9.5-119(a)(1), (2), and (3), Monroe County Code, Environmental restoration standards and agreements, are amended to read as follows:

    
    

    1. In the event that any land clearing occurs on a site which clearing is outside the scope of any permit issued or for which no permit was issued, then the building official shall issue a stop work order which shall remain in effect until all of the following restoration conditions have been met:

       
       

       1. Restoration of the site to its previolation elevation.

          
          

       2. Replacement of all trees, shrubs, and groundcovers on the unlawfully cleared site with native species as appropriate to the site unlawfully cleared. The trees shall be of a size and maturity commensurate to the unlawful clearing as determined by the county biologist. The native species mix shall consist of the approximate percentages of the predominant tree, shrub and groundcover species on the site unlawfully cleared prior to the violation, but if any endangered or threatened tree, shrub or groundcover species were unlawfully cleared, then those species shall be replaced with plants of a size and maturity commensurate to and related to the unlawful clearing as determined by the county biologist regardless of predominance.

          
          

       3. All replanted trees, shrubs, and groundcovers shall be located on site to the maximum extent possible. If all of the replacement plants cannot be physically replanted on site, the

       remainder shall be donated to Monroe County to restore or manage public lands or, at the discretion of the County, to a willing government agency or public or private conservation group to restore public lands. Alternatively, an amount of money equal to the rest of the replacement cost may be placed in an escrow account to be used by Monroe County to restore or manage public lands or, at the discretion of the County, by a willing government agency or a public or private conservation group for off-site replacement of-the affected habitat. The County shall adopt administrative procedures for the management of the escrow account.

       
       

15. Section 9.5-119, Monroe County Code, Environmental restoration standards and agreements, is amended to insert a new subsection (b) to read as follows:

    
    

    1. At least eighty (80) percent of the trees replaced, as described in subsection (a)(2), shall survive for a one-year period after the date of the last replanting; however, dead or dying trees may be replaced during the one-year period in order to assure the eighty (80) percent minimum is met at the year's end. All exotic plant species, as described in Volume I, Monroe County Comprehensive Plan, shall be continuously removed during the one- year period described above.

       
       

16. Section 9.5-119(b)(1), Monroe County Code, Environmental restoration standards and agreements, is amended by redesignating the present subsection (b) as (c) to read as follows:

    
    

    1. In lieu of completion of the restoration described in subsections (a) and (b), the building official may lift the stop work order if the following terms and conditions are met:

       
       

       1. The permit holder shall enter into a binding restoration agreement mutually covenanting with the County that, in consideration for the lifting of the stop work order, the permit holder will restore the unlawfully cleared property in the manner described in subsections (a) and (b) according to the schedule required by the building official. The building official is hereby authorized to enter into such an agreement on behalf of the County.

    
    

17. Section 9.5-121(E)(3), Monroe County Code, Dwelling unit allocation, is amended to read as follows:

    
    

    (3) A residential dwelling unit which is demonstrated by a traffic study submitted to and reviewed for sufficiency by the

    director of planning and approved by the Board. The traffic study shall demonstrate that the dwelling unit is so located with respect to the Monroe County major transportation network that evacuation of such dwelling unit in the event of a threat of a class 3-5 hurricane will not increase the traffic volume on the road segment beginning at the traffic signal located at approximately Mile Marker 100 and ending at the intersection of

    U.S. 1 and Rte. 905 (Mile Marker 106). All previously authorized residential dwelling units to be located in the area designated as zone 7 in the 1989 Transportation Analysis conducted by Post, Buckley, Schuh & Jernigan, Inc., are found to comply with the above criteria and are exempt.

    
    

18. Section 9.5-121.2, Monroe County Code, Dwelling unit allocation, is amended by redesignating the present subsection (H) as (I), and adding a new subsection (H) to read as follows:

    
    

    (H) Subject to approval by the board, the Planning Commission may award additional units from future quarterly allocation periods to fully grant an Application for multifamily residential units, if such an Application receives an Allocation Award for some, but not all, of the units requested because the Applicant seeks more units than are available during that allocation period. The Planning Commission shall not reduce any future quarterly allocation by more than twenty (20) percent, but may apply the reduction over any number of future quarterly allocation periods. If the Planning Commission so awards additional units, the Award shall not take effect until it is approved at a regularly scheduled Board meeting. Multifamily affordable housing or elderly housing projects shall be given priority.

    
    

19. Sections 9.5-227(a), (b) and (c), Monroe County Code, Existing conditions map, are amended to read as follows:

    
    

    1. Authority: The board of county commissioners, upon the recommendation of the planning commission, shall adopt the existing conditions map which shall consist of the 1985 Department of Transportation aerial photographs at a scale of 1" = 200' depicting habitat types coded according to the system set forth in Volume I of the Monroe County Comprehensive Plan.

       
       

    2. Effect: The official land use district map is hereby designated, established and incorporated as a part of this chanter; and the originals thereof, which are on file at the offices of the property appraiser and the department of planning, shall be as much a part of this chapter as if the information contained therein were set out in full in this chapter.

       
       

    3. Review and Amendment: The existing conditions map may be refined to reflect conditions legally in existence on February 28, 1986. Such refinements shall be made pursuant to the procedures for typographical and drafting errors in section 9.5- 511 (e).

       The existing conditions map as referenced throughout this chapter is intended only to serve as a general guide to habitat types for the purpose of preliminary determination of regulatory requirements. Final habitat determinations shall be based upon field verification. Unlawful conditions shall not be recognized when determining regulatory requirements.

       
       

       NOTE: The county has agreed along with the above change, to add a disclaimer to the existing conditions map, land use district map, and future land use map when it becomes effective. The disclaimer will be added when these maps are updated and will state that (1) all land use, including improved subdivisions, are recognized as to and affected by the existing conditions of the site and (2) that all maps are to be verified by site visit as provided in Section 9.5-227.

       
       

20. Section 9.5-231, Monroe County Code, Permitted uses, is amended to add a new subsection (d) to read as follows:

1. Accessory uses as permitted within each land use district shall be consistent with the definition of accessory uses as set forth in Section 9.5-4(A-2). (21) Section 9.5-270, Monroe County Code, Commercial retail and multiple land use intensities and district open space, is created to read as follows:

1. Unless a proposed commercial retail use is legally restricted by a conditioned permit to a particular type of use other than high intensity, the floor area ratio under Section 9.5-

   269 shall be presumed to be the floor area ratio indicated for high-intensity commercial retail uses.

   
   

2. If a proposed development is for a combination of uses, the acreage required for each use shall be determined independently based on the floor area ratio in Section 9.5- 269 for each individual use such that no acreage shall be dedicated for more than one use.

1. Section 9.5-281, Monroe County Code, Minimum yards, Introductory paragraph, is amended to read as follows:

   Except as provided in sections 9.5-266 of division 3 and 9.5-282 of this division and section 9.5-309, no structure or land shall be developed, used or occupied except in accordance with the bulk regulations set out in the following table. Side yards indicated set forth the minimum single yard and the total side yards required. The first number is the minimum for any single side yard where only one (1) side yard exists; where there are two (2) side yards, the first number is the required side yard for one (1) of the two (2) side yards. The second number is the minimum combined total of both side yards (where there are two (2) side yards).

   
   

2. Section 9.5-286, Monroe County Code, Shoreline setback, is amended to read as follows:

   
   

   1. All development shall be set back 20 feet along lawfully altered shorelines and 50 feet from unaltered and unlawfully altered shorelines, as measured from the mean high tide line or the landward extent of the mangroves, whichever is further landward. For man-made canals, the 20 foot setback shall be measured from mean high water line. An exception to this re- quirement shall be allowed only for utility pilings, fences, public boat ramps and for elevated structures limited to docks, nonenclosed gazebos, and walkways. On scarified canal shorelines only, boat ramps may also be allowed as accessory uses. All development within the shoreline setback area shall comply with the environmental design criteria in section 9.5-345 and the following design criteria:

      
      

      1. Only T-designs and similar designs perpendicular to the shoreline are allowed except where such structures would preclude lawful navigation of the waterway;

         
         

      2. Walkways and accessways shall not exceed five feet in width and shall be perpendicular to the shoreline;

         
         

      3. Perpendicular structures that extend over confined water bodies shall not exceed 10 percent of the width of confined water bodies as measured from mean low water line to mean low water line. The maximum area of the terminal platform of a dock shall not exceed 8 feet in width and 20 feet in length.

         
         

      4. Where perpendicular designs are not feasible, a parallel structure may be permitted provided that the structure:

         
         

         1. Does not exceed 20 feet in length;

         2. Does not exceed five feet in width; and

            
            

         3. Is confined to an existing cleared area along the shoreline whenever possible; and

         
         

      5. An additional 100 square feet of the shoreline setback may be utilized for elevated decks or non-enclosed gazebos provided that the structure is set back at least ten feet from mean high water, no land clearing of native species is involved, and drainage is adequately addressed.

         
         

      6. Boat ramps shall be confined to an existing cleared area wherever possible and shall be located and designed so as not to create a nonconformity. Boat ramps other than public ramps shall not exceed fifteen (15) feet in width.

         
         

      7. For purposes of this subsection, "open water" means the portion of the Straits of Florida, Florida Bay, the Gulf of Mexico, or the Atlantic Ocean which consists of an uninterrupted expanse of water deeper than four (4) feet at mean low water; and "continuous access" means a natural passage or an existing manmade channel no shallower than four (4) feet at mean low water and no narrower than twenty (20) feet. A docking facility shall meet at least one of the following conditions:

         
         

         1. Docking facilities may be developed on any shoreline if there is a mean low water depth of at least minus four (4) feet

            at she terminal end of the docking facility, and continuous access to open water; or

            
            

         2. Docking facilities may be developed on the shoreline of lots in a subdivision ii the docking facility is located in a channel or canal which was dredged before 1986, and if there is a mean low water depth of at least minus four (4) feet at the terminal end of the docking facility.

            
            

      8. Public boat ramps shall be allowed provided that the ramps meet the 4-foot water depth requirement in the preceding subsection and have been approved as part of a comprehensive access management plan adopted as part of the Monroe County Comprehensive Plan.

         
         

         (2) Notwithstanding subsection (1) above, no development other than docks shall be located within fifty (50) feet of any shoreline area which is known to serve as an active nesting or resting area for marine turtles, as required in Section 9.5- 345 (1)(7) . "Active nesting or resting area" is defined as any beach

         that has a marine turtle nesting area as identified on the nesting inventory approved by Monroe County or the Department of Environmental Protection.

         
         

3. Section 9.5-288, Monroe County Code, Bulkheads, seawalls, riprap and fences, is amended to read as follows:

   
   

   1. Bulkheads, seawalls, riprap and fences may be allowed as principal uses where it is demonstrated that their purpose is for erosion control or upland protection and provided that they comply with each and every other requirement of this code.

      
      

   2. Vertical seawalls or bulkheads may be allowed for ero- sion control where it can be demonstrated that rip-rap in con- junction with vegetation will not suffice. Seawall caps shall not be allowed in conjunction with seawalls or bulkheads. Any attachments such as davits, cleats, and platforms, or any other elements that constitute docking facilities shall not be allowed except as accessory to a principal use. Any such structures that incorporate a docking facility shall be subject to the dock siting criteria set forth in Sec. 9.5-345(m)(2)g.

      
      

   3. On those beaches identified and approved by the Depart- ment of Environmental Protection as turtle nesting areas, no seawalls, riprap or fences shall be permitted. (25) Section 9.S- 309(e), Monroe County Code, Fences, is amended to read as follows:

   
   

   (e) Big Pine Key and No Name Key: The purpose of this section is to recognize and provide for the particular habitat needs of the Florida Key Deer (Odocoileus virginianus clavium) on Big Pine Key and No Name Key. Whereas Big Pine Key and No Name Key serve as the core area or center of the Key Deer population, where the majority of the Key Deer population is located during some part of each year; and whereas the Key Deer depends upon the ability to move freely and safely throughout its range as well as the ability to have access to natural habitat for the purposes of feeding, watering, resting, birthing, and other activities necessary to carry out its life history; and, whereas the concentration of development and human activity on Big Pine Key and No Name Key have the greatest effect on the short and long term survival of the Key deer, it is hereby the intent of this section to limit fences on Big Pine Key and No Name Key so that deer movement throughout Big Pine Key and No Name Key is not hindered while allowing for reasonable use of minimal fencing for the purposes of safety and protection of property. In addition to all other standards set forth in this section, all fences located

   on Big Pine Key and No Name Key shall meet the standards of this subsection as listed below:

   
   

   1. In the Improved Subdivision (IS) land use district, fences shall be set back as follows:

      
      

      1. On canal lots, fences shall be set back at least

         fifteen (15) feet from the edge of abutting street rights- of-way and built to the edge of all other property lines;

         
         

      2. On all other lots, fences shall be set back at least fifteen (15) feet from the edge of abutting street rights-of-way, at least five (5) feet from side property lines and at least ten (10) feet from the rear property line;

      
      

   2. In all other land use districts, fences may enclose up to a maximum of and not to exceed the net buildable area of the parcel only;

      
      

   3. Enclosure of freshwater wetlands by fences is prohibited;

      
      

   4. All fences shall be designed and located such that Key Deer access to native habitat, including pinelands, hammocks, beach berms, saltmarshes, buttonwoods and mangroves, is maintained wherever possible;

      
      

   5. All fences shall be designed and located such that Key Deer corridors, as identified by the U.S. Fish and Wildlife Service, shall be maintained;

      
      

   6. Fences shall not be permitted without a principal use except where the enclosed area consists of disturbed lands or disturbed lands with exotics.

1. Section 9.5-336, Monroe County Code, Habitat analysis required, is amended to read as follows:

   
   

   1. As a part of an application for approval of development on lands classified on the existing conditions map as slash pine land or tropical hardwood hammock, the applicant shall prepare and submit a habitat analysis that analyzes the distribution and quality of undisturbed lands within the parcel proposed to be developed in accordance with the standards of this division unless the applicant stipulates that the slash pine lands or tropical hardwood hammock is of high quality pursuant to the provisions of this chapter. Once a development permit has been issued and site

      preparation commenced, the habitat quality rating either resulting from the habitat analysis or as a result of the applicant's stipulation of high quality shall remain in perpetuity and all future development of the parcel shall conform to the applicable pinelands or hammock so analyzed or stipulated. This shall be assured by attachment of a deed restriction to run with the land, stating the amount of required open space. Likewise, a habitat analysis which is part of a development application or permit, which application for development is then denied or abandoned or which permit is abandoned or expired without site preparation having commenced, shall be revised and resubmitted according to the applicable standards at the time of submittal of a new application for development.

      
      

   2. The habitat analysis shall be prepared by a biologist qualified under section 9.5-28 of this chapter, however, all habitat analyses are subject to the approval of the county biologist. Where the habitat analysis requires consideration of commercially exploited, threatened or endangered plant and animal species, the analysis shall consider those native plants and animals listed under state and federal law at the time the development approval is sought. Where consideration of regionally important plants is required, the habitat analysis shall consider those plants listed by the Monroe County Environmental Resources Department at the time the development approval is sought.

      
      

2. Section 9.5-342(b)(5), Monroe County Code, Habitat analysis for pinelands, is amended by deleting all text and renumbering subsequent paragraphs.

   
   

3. Section 9.5-342(c), Monroe County Code, Habitat analysis for pinelands, is amended to read as follows:

   
   

   1. The quality of the pineland shall be determined on the basis of the cumulative score as follows:

      
      

      1. A cumulative score of 16 to 21 shall indicate a high quality pineland; and

         
         

      2. A cumulative score of less than 16 shall indicate a low quality pineland.

   
   

4. Section 9.5-343, Monroe County Code, Open space requirements, is amended to read as follows:

It is the purpose of this section to provide for open space as a part of a development plan in order to ensure the continued

existence of natural wildlife habitat and to provide open green areas for the movement, aesthetics, and safety of the human population utilizing the development. It is the intent of this section that open space areas be designated and treated in such a manner as to maintain their integrity whether their primary purpose is to serve as natural wildlife habitat or as cultivated, landscaped space.

No land shall be developed, used or occupied such that the amount of open space on the parcel proposed for development is less than the open space ratios listed below for each habitat.

1. Exceptions: No structures are permitted in the required open space except for the following:

   
   

   1. Up to fifty (50) percent of the total area of driveways, parking areas, passive recreational uses, and active recreational uses provided that:

      
      

      1. they do not cumulatively occupy more than ten (10) percent of the total required open space area; and

         
         

      2. they are constructed of permeable materials; and

      3. they do not require the removal of native vegetation for that portion to be considered open space; and

         
         

      4. they are located within a disturbed habitat as listed in Section 9.5-345(o) of this division.

         
         

   2. Structures buried underground including but not limited to septic tank drain fields, utility lines, and underground tanks, provided that:

      
      

      1. they are covered with permeable materials; and

         
         

      2. they do not require the removal of native vegetation; and

         
         

      3. they are located within a disturbed habitat as listed in Section 9.5-345(o) of this division.

      
      

   3. Docks, piers and walkways located over submerged lands, or within mangroves, or freshwater wetland habitats that are elevated by means of pilings or other such supports such that the area of land or water underneath the structure IS not topographically altered and remains in a vegetated state.

(2) Required open space shall be maintained pursuant to the most restrictive design criteria listed for each habitat which applies to the development as listed in this division.

Permittable clearing within each habitat type shall be assessed on a cumulative basis such that any additional or proposed clearing shall be determined by accounting for all previous clearing that occurred on the site since February 28, 1986. Major development sites approved prior to September 15, 1986 shall not be permitted to clear additional habitat beyond the clearing originally approved.

1. Section 9.5-344, Monroe County Code, Transplantation plans and surveys, is amended to read as follows:

   
   

   1. A transplantation plan shall contain the following:

      
      

      1. A survey indicating the location, size and species to be transplanted;

         
         

      2. Identification of the transplantation site including the ultimate location, size and species of all plants to be transplanted;

         
         

      3. The transplantation method to be eloyed, including:

         
         

         1. A schedule, by week, of each step of the transplantation process and a specific completion date;

            
            

         2. Demonstration of the qualifications and experience of the individual or firm performing the transplanting;

            
            

         3. The means of excavating the plant materials;

            
            

         4. Preparation of the site to which the plant material will be transplanted; and

            
            

         5. A schedule of maintenance of the plant material after it has been transplanted;

         
         

      4. A written narrative description of the likelihood of the success of transplantation including a description of other successful transplantations of the species proposed to be transplanted.

         
         

   2. All transplantation plans shall meet the following standards:

      
      

      1. If, upon site evaluation and review of the narrative required in subsection (4) above, the proposed transplantation is deemed not feasible by the county biologist and preservation is not possible, replacement with nursery stock may be permitted pursuant to the standards listed below:

         
         

         1. Nursery stock shall be of the same size as the plants required to be transplanted, or if of smaller size, shall be substituted at the ratio of two (2) nursery plants for every one

            1. plant proposed for removal;

               
               

         2. Nursery stock shall be of the same species whenever possible, or equally rare species as approved by the county biologist;

         
         

         1. All transplantation shall be on the development site unless there is no suitable planting area available;

            
            

         2. Transplantation plans shall be approved by the county biologist prior to issuance of a permit and shall be attached as a condition on the permit;

            
            

         3. All transplantation shall-be completed prior to issuance of a Certificate of Occupancy (C.O.) for the site, or, where a

            C.O. is not applicable, within the time frame outlined in the transplantation plan.

            
            

         4. All transplantation shall meet a survival rate of 80.

         
         

   3. Off site transplantation:

      
      

      1. Receiver sites eligible for off site-transplantation shall be either:

         
         

         1. located within an area of publicly-owned (local, federal, or state) land which is designated solely for the purpose of reforestation, restoration and/or preservation; or

            
            

         2. located within a site owned by a private non-profit conservation organization where the site is designated for the sole purpose of reforestation, restoration and/or preservation.

         
         

      2. Sites not eligible as receiver sites for off site transplantation:

         
         

         1. Any area designated for landscaping that serves an architectural or aesthetic purpose only;

            
            

         2. any area which is a required landscape or buffer area by county code (however, required scenic corridors-are eligible);

            
            

         3. any area which would require clearing of native trees or habitat to make room for plants; and,

            
            

         4. any area which is required for planting, restoration, or mitigation under the Monroe County land development regulations as part of or as a result of a code violation case.

         
         

      3. Additionally, the off site transplantation area shall be either:

         
         

         1. suitable for restoration to the same habitat type as the applicant's property, as confirmed by the county biologist after site inspection; or

            
            

         2. suitable for establishing new habitat, provided that it can reasonably be expected to support the applicable habitat type based upon site history and characteristics and is approved by the county biologist.

         
         

      4. Off site transplantation methods:

      
      

      1. The transplantation plan shall be part of a written tri- party agreement or memorandum of understanding (MOU) between the applicant, the receiving (transplantation) site owner, and Monroe County. The agreement or MOU shall be prepared by the applicant In a form acceptable to the county and should state responsibilities and include a copy of the transplantation plan.

         
         

      2. All initial costs of transplantation, including materials, installation and labor required to establish the planes (Initial watering, etc.) and to remove exotic vegetation to prepare the site, shall be the responsibility of the applicant and shall be calculated as follows in accordance with the terms of the agreement:

         
         

         1. For transplantable plant material, the applicant shall pay to the owner of the receiver site an amount equal to 100 percent of the cost of transport and delivery of the plants plus

            100 percent of two times the cost of substitute nursery plant material (according to the ratios in subsection (b)(1)a above) to cover labor and installation. plus, 15 percent of the cost of substitute nursery plant material to cover maintenance for one year.

            
            

         2. For nursery stock, the applicant shall pay to the owner of the receiver site an amount equal to 100 percent of the cost of plant materials (including transportation and delivery), plus 100 percent of two times the plant material cost to cover labor and installation, plus 15 percent of the cost of substitute nursery plant material to cover maintenance for one year.

            
            

      3. All physical maintenance and guarantees required by the transplantation plan after installation and establishment of plants shall be the responsibility of the owner of the receiver site.

         
         

      4. As part of the guaranteed maintenance, the owner of the receiver site shall agree to keep it free of invasive exotic vegetation in perpetuity.

      
      

   4. If none of the above alternatives are available, then the applicant shall provide a fee equal to the cost of the replacement plants plus installation and maintenance, calculated in accordance with section (c)(4)b.2 above. This fee shall be held in an escrow account or similar instrument which shall be used by the County to restore and manage public lands in Monroe County or, at the discretion of the County, to a willing government agency or public

      or private conservation group for off-site replacement of the affected habitat. The County biologist shall prepare a fee schedule which shall be periodically revised based on the market costs for replacement plants and installation. The County shall adopt administrative procedures for management of the escrow account.

      
      

   5. Inability to locate eligible off site transplantation area. Until the administrative procedures referenced in section

1. above are adopted, the following procedure shall be used when no other alternative is available. If the applicant demonstrates to Monroe County that he/she has exhausted attempts to locate an off site transplantation area which meets the criteria of section

   
   

   1. above, and is unable to locate a suitable site, the following method shall be employed:

      
      

      1. The applicant shall submit to Monroe County a transplantation plan which includes all of the items listed in subsection (a) above with the exception of the location of trees at the receiver site;

         
         

      2. The applicant should then arrange, with assistance from the county for removal of the plants from the site by area nurseries, landscapers, and other individual for future replanting;

         
         

      3. Prior to approval of final inspection for a Certificate of Occupancy, the applicant shall demonstrate that all of the required plants have been removed for transplantation by submitting receipts to the county from the above individuals which state the species and number of plants removed for transplantation.

1. Section 9.5-345(a), Monroe County Code, Environmental design criteria, is amended to read as follows:

   
   

   1. Clustering: It is the purpose of this section to minimize the environmental impacts of development by encouraging design of a development on a parcel of land to incorporate clustering of the development away from the natural areas on the parcel that are the most susceptible to harmful development Impacts. Clustering requirements shall apply to all development, including plat design, and shall be achieved in the following manner:

      
      

      1. When a parcel proposed for development contains more than one (1) habitat type, all development shall be clustered on the

         least sensitive portions of the parcel subject to the maximum net densities of section 9.5-262 and 9.5-269 and the performance standards of this section. For the purpose of this subsection, the relative sensitivity of separate habitat types shall be as listed below with subsection (a) being the most sensitive and subsection (s) being the least sensitive. Development within the least sensitive habitat shall achieve the maximum density or intensity allowable by these regulations and shall fully utilize the buildable area of the habitat prior to expanding to the next least sensitive habitat type on the site. For proposed plats, these cluster requirements shall be applied such that the number of proposed lots are sized and configured to achieve the highest allowable density within the least sensitive habitat prior to locating additional lots within the next least sensitive habitat.

         
         

         1. High hammock (high-quality);

         2. Palm hammock;

         3. Cactus hammock;

         4. Beach/berm;

         5. Pinelands (high-quality);

         6. Salt marsh and buttonwood wetlands;

         7. High hammock (moderate-quality);

         8. Low hammock (high-quality);

         9. Low hammock (moderate-quality);

         10. Pinelands (low-quality);

         11. High hammock (low-quality);

         12. Low hammock (16w-quality);

         13. Disturbed beach/berm;

         14. Disturbed with slash pines;

         15. Disturbed with salt marsh and buttonwood;

         16. Disturbed with high hammock;

         17. Disturbed with low hammock;

         18. Disturbed;

         19. Disturbed with exotics.

         
         

      2. In addition to the requirements of subsection 1 above, when a parcel proposed for development contains more than one habitat type, the development shall be clustered within the least ecologically valuable area of each habitat as determined by the county biologist.

         
         

      3. When a parcel proposed for development contains only one habitat type, the development shall be clustered within the least ecologically valuable area of the habitat as determined by the county biologist.

2. Section 9.5-345(b), Monroe County Code, Saltmarsh and buttonwood design criteria, is amended to add a section (5) to read as follows:

(5) All listed threatened, endangered, commercially exploited, and regionally important native plant species are preserved, protected, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site pursuant to a transplantation program approved in accordance with section 9.5-344 of this division; (33) Section 9.5-345(c)(1), Monroe County Code, High hammock (high-quality) design criteria, is amended to read as follows:

(1) All listed threatened, endangered, commercially exploited, and regionally important native plant species are preserved, protected, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site pursuant to a transplantation program approved in accordance with section 9.5-344 of this division;

1. Section 9.5-345(c)(3), Monroe County Code, High hammock (high-quality) design criteria, is amended to read as follows:

   
   

   (3) All native trees with a diameter at breast height (DBH) of greater than three and one-half (3-1/2) inches shall be preserved, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site at a ratio of two (2) replacements for every one (1) tree removed pursuant to a transplantation program approved in accordance with section 9.5-

   344 of this division.

   
   

2. Section 9.5-345(c), Monroe County Code, High hammock (high- quality) design criteria, is amended to add a subsection (10) to read as follows:

   
   

   (10) A construction impact zone is provided and construction barriers are required at the outer edge of the construction impact zone and shall be visible and of durable material such as wood, fabric, wire fencing, rope or wire cable; Barriers shall remain in place until final inspection for a Certificate of Occupancy has been approved.

   
   

3. Sections 9.5-345(d)(1) and (2), Monroe County Code, High hammock (moderate-quality) design criteria, are amended to read as follows:

   1. All listed threatened, endangered, commercially exploited, and regionally important native plant species are preserved, protected, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site pursuant to a transplantation program approved in accordance with section 9.5-344 of this division;

      
      

   2. All native trees with a diameter at breast height (D H) of greater than three and one-half (3-1/2) inches shall be preserved, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site at a ratio of two (2) replacements for every one (1) tree removed pursuant to a transplantation program approved in accordance with section 9.5-

      344 of this division.

      
      

4. Section 9.5-345(d), Monroe County Code, High hammock (moderate-quality) design criteria, is amended to add a section

(7) to read as follows:

(7) A construction impact zone is provided and construction barriers are required at the outer edge of the construction impact zone and shall be visible and of durable material such as wood, fabric, wire fencing, rope or wire cable; Barriers shall remain in place until final inspection for a Certificate of Occupancy has been approved.

1. Section 9.5-345(e)(1), Monroe County Code, High hammock (low- quality) design criteria, is amended to read as follows:

   
   

   1. All listed threatened, endangered, commercially exploited, and regionally important native plant species are preserved, protected, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site pursuant to a transplantation program approved in accordance with section 9.5-344 of this division;

      
      

2. Section 9.5-345(e), Monroe County Code, High hammock (low- quality) design criteria, is amended to add a section (5) to read as follows:

   
   

   (5) A construction impact zone is provided and construction barriers are required at the outer edge of the construction impact zone and shall be visible and of durable material such as wood, fabric, wire fencing, rope or wire cable; Barriers shall remain in place until final inspection for a Certificate of Occupancy has been approved.

3. Sections 9.5-345(f)(1) and (2), Monroe County Code, Low hammock (high-quality) design criteria, are amended to read as follows:

   
   

   1. All listed threatened, endangered, commercially exploited, and regionally important native plant species are preserved, protected, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site pursuant to a transplantation program approved in accordance with section 9.5-344 of this division;

      
      

   2. All native trees with a diameter at breast height (D:4) of greater than three and one-half (3-1/2) inches shall be preserved, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site at a ratio of two (2) replacements for every one (1) tree removed pursuant to a transplantation program approved in accordance with section 9.5-

      344 of this division.

      
      

4. Section 9.5-345(f), Monroe County Code, Low hammock (high- quality) design criteria, is amended to add a section (8) to read as follows:

   
   

   (8) A construction impact zone is provided and construction barriers are required at the outer edge of the construction impact zone and shall be visible and of durable material such as wood, fabric, wire fencing, rope or wire cable; Barriers shall remain in place until final inspection for a Certificate of Occupancy has been approved.

   
   

5. Section 9.5-345(g)(1), Monroe County Code, Low hammock (moderate-quality) design criteria, is amended to read as follows:

   
   

   1. All listed threatened, endangered, commercially exploited, and regionally important native plant species are preserved, protected, relocated or replaced with nursery shock of the same species or equally rare species suitable to the site pursuant to a transplantation program approved in accordance with section 9.5-344 of this division;

      
      

6. Section 9.5-345(g), Monroe County Code, Low hammock (moderate-quality) design criteria, is amended to add a section

(6) to read as follows:

(6) A construction impact zone is provided and construction barriers are required at the outer edge of the construction impact zone and shall be visible and of durable material such as wood,

fabric, wire fencing, rope or wire cable; Barriers shall remain in place until final inspection for a Certificate of Occupancy has been approved.

1. Section 9.5-345(h)(1), Monroe County Code, Low hammock (low- quality) design criteria, is amended to read as follows:

   
   

   1. All listed threatened, endangered, commercially exploited, and regionally important native plant species are preserved, protected, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site pursuant to a transplantation program approved in accordance with section 9.5-344 of this division;

      
      

2. Section 9.5-345(h), Monroe County Code, Low hammock (low- quality) design criteria, is amended to add a section (5) to read as follows:

   
   

   (5) A construction impact zone is provided and construction barriers are required at the outer edge of the construction impact zone and shall be visible and of durable material such as wood, fabric, wire fencing, rope or wire cable; Barriers shall remain in place until final inspection for a Certificate of Occupancy has been approved.

   
   

3. Sections 9.5-345(i)(1) and (6), Monroe County Code, Palm hammock design criteria, are amended to read as follows:

   
   

   1. All listed threatened, endangered, commercially exploited, and regionally important native plant species are preserved, protected, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site pursuant to a transplantation program approved in accordance with section 9.5-344 of this division;

      
      

      (6) All native trees with a diameter at breast height (DBH) of greater than three and one-half (3-1/2) inches shall be preserved, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site at a ratio of two (2) replacements for every one (1) tree removed pursuant to a transplantation program approved In accordance with section 9.5-

      344 of this division.

      
      

4. Section 9.5-345(i), Monroe County Code, Palm hammock design criteria, is amended to add a section (9) to read as follows:

   (9) A construction impact zone is provided and construction barriers are required at the outer edge of the construction impact zone and shall be visible and of durable material such as wood, fabric, wire fencing, rope or wire cable; Barriers shall remain in place until final inspection for a Certificate of Occupancy has been approved.

   
   

5. Section 9.5-345(j)(1), Monroe County Code, Pinelands (high- quality) design criteria, is amended to read as follows:

   
   

   1. All listed threatened, endangered, commercially expoited, and regionally important native plant species are preserved, protected, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site pursuant to a transplantation program approved in accordance with section 9.5-

      344 of this division;

      
      

6. Section 9.5-345(j), Monroe County Code, Pinelands (high- quality) design criteria, is amended to add a section (?) to read as follows:

   
   

   (7) A construction impact zone is provided and construction barriers are required at the outer edge of the construction impact zone and shall be visible and of durable material such as wood, fabric, wire fencing, rope or wire cable; Barriers shall remain in place until final inspection for a Certificate of Occupancy has been approved.

   
   

7. Section 9.5-345(k)(1), Monroe County Code, Pinelands (low- quality) design criteria, is amended to read as follows:

   
   

   1. All listed threatened, endangered, commercially exploited, and regionally important native plant species are preserved, protected, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site pursuant to a transplantation program approved in accordance with section 9.5-344 of this division;

      
      

8. Section 9.5-345(k), Monroe County Code, Pinelands (low- quality) design criteria, is amended to add a section (5) to read as follows:

   
   

   (5) A construction impact zone is provided and construction barriers are required at the outer edge of the construction impact zone and shall be visible and of durable material such as wood, fabric, wire fencing, rope or wire cable; Barriers shall remain in

   place until final inspection for a Certificate of Occupancy has been approved.

   
   

9. Section 9.5-345(1)(7), Monroe County Code, Beach berm complex design criteria, is amended to read as follows:

   
   

   (7) No development shall be located within fifty (50) feet of the most landward crest of the beach berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds; and

   
   

10. Section 9.5-345(1), Monroe County Code, Beach berm complex design criteria, is amended to add new sections (9), (10) and (11) to read as follows:

    
    

    1. All listed threatened, endangered, commercially exploited, and regionally important native plant species are preserved, protected, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site pursuant to a transplantation program approved in accordance with section 9.5-344 of this division;

       
       

    2. All native trees with a diameter at breast height (DEH) of greater than three and one-half (3-172) inches shall be preserved, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site at a ratio of two (2) replacements for every one (1) tree removed pursuant to a transplantation program approved in accordance with section 9.5-

       344 of this division.

       
       

    3. A construction impact zone is provided and construction barriers are required at the outer edge of the construction impact zone and shall be visible and of durable material such as wood, fabric, wire fencing, rope or wire cable; Barriers shall remain in place until final inspection for a Certificate of Occupancy has been approved.

    
    

11. Sections 9.5-345(m)(1) and (2), Monroe County Code, Mangroves and submerged lands, are amended to read as follows:

    
    

    1. Only docks, walkways and utility pilings shall be permitted on submerged lands and mangroves;

       
       

    2. All structures on any submerged lands and mangroves shall be designed, located and constructed such that:

       1. All structures shall be constructed on pilings or other supports;

          
          

       2. Walkways and accessways shall not exceed five feet in width;

          
          

       3. Perpendicular structures that extend over confined water bodies shall not exceed 10 percent of the width of confined water bodies as measured from mean low water line to mean low water line. The maximum area of the terminal platform of a dock shall not exceed 8 feet in width and 20 feet in length.

          
          

       4. Where perpendicular designs are not feasible, a parallel structure may be permitted provided that the structure:

          
          

          1. Does not exceed 20 feet in length;

          2. Does not exceed five feet in width; and

          3. Utilizes an existing cleared area along the shoreline before encroaching into vegetated areas; and

          
          

       5. An additional 100 square feet of the shoreline setback may be utilized for elevated decks or non-enclosed gazebos provided that the structure is set back at least ten feet from the mean high water, no land clearing is involved, and drainage IS adequately addressed.

          
          

       6. No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities;

          
          

       7. For purposes of this subsection, "open water" means the portion of the Straits of Florida, Florida Bay, the Gulf of Mexico, or the Atlantic Ocean which consists of an uninterrupted expanse of water deeper than four (4) feet at mean low water; and "continuous access" means a natural passage or an existing manmade channel no shallower than four (4) feet at mean low water and no narrower than twenty (20) feet. A docking facility shall meet at least one of the following conditions:

          
          

          1. Docking facilities may be developed on any shoreline if there is a mean low water depth of at least minus four (4) feet at the terminal end of the docking facility, and continuous access to open water; or

             
             

          2. Docking facilities may be developed on the shoreline of lots in a subdivision if the docking facility is located in a

             channel or canal which was dredged before 1986, and if there is a mean low water depth of at least minus four (4) feet at the terminal end of the docking facility.

             
             

12. Section 9.5-345(o)(1) a, Monroe County Code, Disturbed with high hammock design criteria, is amended to read as follows:

    
    

    a. All listed threatened, endangered, commercially exploited, and regionally important native plant species are preserved, protected, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site pursuant to a transplantation program approved in accordance with section 9.5-344 of this division;

    
    

13. Section 9.5-345(o)(2)a, Monroe County Code, Disturbed with low hammock design criteria, is amended to read as follows:

    
    

    a. All listed threatened, endangered, commercially exploited, and regionally important native plant species are preserved, protected, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site pursuant to a transplantation program approved in accordance with section 9.5-344 of this division;

    
    

14. Section 9.5-345(o)(3), Monroe County Code, Disturbed with beach berm design criteria, is amended to add sections h. and i. to read as follows:

    
    

    h. All native trees with a diameter at breast height (DBH) of greater than three and one-half (3-1/2) inches shall be preserved, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site at a ratio 0- LW0 (2) replacements for every one (1) tree removed pursuant to a transplantation program approved in accordance with section 9.5-

    344 of this division.

    
    

    1. All listed threatened, endangered, commercially exploited, and regionally important native plant species are preserved, protected, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site pursuant to a transplantation program approved in accordance with section 9.5-

    344 of this division;

    
    

15. Section 9.5-345(o)(4)a, Monroe County Code, Disturbed with saltmarsh and buttonwood design criteria, is amended to read as follows:

    a. No fill shall be placed on a parcel proposed for development except for the minimum amount necessary to permit a driveway, on-site disposal system (if applicable), and house pad. However, in no case shall the area of the fill exceed 2000 square feet and all fill shall comply with the requirements of section 9.5-345(b)(1) through (5);

    
    

16. Section 9.5-345(o)(4), Monroe County Code, Disturbed with saltmarsh and buttonwood design criterIa, IS amended to add a new section e. to read as follows:

    
    

    e. All listed threatened, endangered, commercially exploited, and regionally important native plant species are preserved, protected, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site pursuant to a transplantation program approved in accordance with section 9.5-344 of this division;

    
    

17. Section 9.5-345(o)(5) a, Monroe County Code, Disturbed with slash pineland design criteria, is amended to read as follows:

a. All listed threatened, endangered, commercially exploited, and regionally important native plant species are preserved, protected, relocated or replaced with nursery stock of the same species or equally rare species suitable to the site pursuant to a transplantation program approved in accordance with section 9.5-344 of this division;

Specific Authority: 380.0552(9), Florida Statutes Law Implemented: 380.0552, Florida Statutes History - New.

NAME OF PERSON ORIGINATING RULE AMENDMENTS:

Robert P. Bradley, Secretary, Administration Commission, The Capitol, Room 2105, Tallahassee, Florida, 32399-0001.

NAME OF SUPERVISOR OR PERSON WHO APPROVED RULE AMENDMENTS:

Administration Commission

DATE RULE APPROVED: December 12, 1995 ADMINISTRATION COMMISSION

RULE CHAPTER TITLE: RULE CHAPTER NO.:

Land Planning Regulations for the Florida Keys Area of Critical

State Concern, Monroe County 28-20.025

RULE TITLE: RULE NO.:

Fourth Administration Commission Amendments to the Monroe County

Land Development Regulations 28-20.025

NOTICE OF WITHDRAWAL

Notice is hereby given that a portion of the above cited rule has been withdrawn as published in Volume 20, Number 27, Florida Administrative Weekly, July 8, 1993:

Withdraw portion of sections 28-20.025(23) and (54), which amend Sections 9.5-286(1)(g)(2) and 9.5-345(m)(1) and (2), Monroe County Code, to delete the words "which was approved before 1986,".

CERTIFICATION OF

THE ADMINISTRATION COMMISSION RULE FILED WITH THE

DEPARTMENT OF STATE

I do hereby certify:

[x] (1) The time limitations prescribed by subsection 120.54(11)(a), F.S have been complied with; and

[x] (2) There is no administrative determination under paragraph 120.54(4), F.S., pending on any rule covered by this certification; and

[x] (3) All rules covered by this certification are filed within the prescribed time limitations of paragraph 120.54(11)(b),

F.S. They are filed not less than 28 days after the notice required by subsection 120.54(1), F.S., and;

[ ] (a) Are filed not more than 90 days after the notice; or [ ] (b) Are filed not more than 90 days after the notice not

including days an administrative determination was pending; or

[x] (c) Are filed within 21 days after the adjournment of the final public hearing on the rule; or

[ ] (d) Are filed within 21 days after the date of the receipt of all material authorized to be submitted at the

or

[ ] (e) Are filed within 21 days after the date thee transcript was received by this agency.

Attached are the original and two copies of each rule covered by this certification. The rules are hereby adopted by the undersigned agency by and upon their filing with the Department of State.

Under the provisions of paragraph 120.54(13)(a), F.S., the rule takes effect 20 days from the date filed with the Department of State or at a later date as set out below:

Effective:

ROBERT B. BRADLEY, Secretary Administration Commission

44

Number of Pages Certified

SUMMARY OF RULE

The purpose of the amendments to Rule 28-20, Florida Administrative Code, is to adopt amendments to the Monroe County Comprehensive Plan and Land Development Relations, pursuant to sections 380.05(8) and 380.0552(9), F.S.

These amendments bring portions of the Monroe County Comprehensive Plan into compliance with Chapter 163, Florida Statutes, and the Principles for Guiding Development in the Florida Keys Area of Critical State Concern identified in Chapter 380, F.S. The amendments to the Monroe County Comprehensive Plan address local funding initiatives, and alternatives for implementation of the plan; use of the County's Point Allocation System to direct development away from important natural resources and maintain acceptable hurricane evacuation times; and development controls which adequately protect hammocks, pinelands, wetlands, marine resources and water quality.

SPECIFIC AUTHORITY: 380.0552(9), Florida Statutes.

LAW IMPLEMENTED: 380.0552, Florida Statutes

STATE OF FLORIDA ADMINISTRATION COMMISSION

RULE 28-20

Statement of Facts and Circumstances Justifying Adoption of the Rule Amendments:

Pursuant to section 380.05(8), F.S., if any local government fails to submit land development regulations or a local comprehensive plan within 180 days after the Commission adopts a rule designating an area of critical state concern, or if the regulations or plan submitted do not comply with the principles for guiding development set out in the rule designating the area of critical state concern, in either case, within 120 days, the state land planning agency shall submit to the Commission recommended land development regulations and a local comprehensive plan or portions thereof applicable to that local government's portion of the area of critical state concern, and section 380.0552(9), F.S., the state land planning agency, after consulting with the appropriate local government, may, no more often that once a year, recommend to the Administration Commission the enactment, amendment, or recision, of land development regulation or element of a local comprehensive. Within 45 days following the receipt of such recommendation by the state land planning agency, the commission shall reject the recommendation, or accept it with or without modification and adopt it, by rule, including any changes. On August 31, 1993, in accordance with these requirement the DCA submitted to the Administration

Commission portions of the Monroe County Comprehensive Plan and the Land Development Regulations, adopted by Monroe County on May 3, 1993, for the Florida Keys Area of Critical State Concern. The portions of the Monroe County Comprehensive Plan that DCA recommends the Commission approve and adopt are consistent with Monroe County's Comprehensive Plan as it relates to the Florida Keys Area of Critical State Concern. On September 28, 1993, the Administration Commission initiated rulemaking and scheduled three public hearings, to be conducted in the Florida Keys, on November 2, 3, and 4, 1993. The proposed rule was challenged. At the conclusion of the administrative hearing the Division of Administrative Hearings issued a Final Order finding portions of the proposed rule amendments to be an invalid exercise of legislative authority. A final public hearing was conducted on December 12, 1995, and the Administration Commission approved and adopted those portions of the proposed rule amendments that were found valid and simultaneously approved a Notice of Withdrawal for those portions determined invalid. The Notice of Withdrawal will be published in the December 22, 1995, Florida Administrative Weekly.

SUMMARY OF HEARINGS

The Commission published a Notice of Proposed Rulemaking scheduling public hearings for November 2, 31 and 4, 1993. The proposed rule was challenged and the administrative hearing resulted in a Final Order issued by the Division of Administrative Hearings on July 19, 1995, finding portions of the proposed rule an invalid exercise of delegated legislative authority.

The final public hearing was held on December 12, 1995, in Tallahassee, Florida, before the Governor and Cabinet, sitting as the Administration Commission. The Administration Commission approved and adopted those portions of the proposed rule determined to be valid by the Hearing Officer, and simultaneously approved a Notice of Withdrawal for those portions determined invalid. The Notice of Withdrawal will be published in the December 22, 1995, Florida Administrative Weekly.

FEDERAL COMPARISON STATEMENT

Amendments to Land Planning Chapter 28-20, Regulations for the Florida Keys F.A.C.

Area of Critical State Concern

Monroe County

A federal rule on the same subject as that covered by the adoption of these rule amendments does not exist.

THE FULL TEXT OF THE RULE:

PART 1

28-20.019(6) Purpose and Effect. PART II

28-20.100 Comprehensive Plan.

Existing Rules 28-20.001 through 28-20.023, Rule 28-20.025, and Section (6) of 28-20.019 are designated as PART I of Rule Chapter 28-20.

Rule 28-20.019, Purpose and Effect, is amended to add:

(6) The purpose of Part II of this Chapter is to adopt amendments to the Monroe County Comprehensive Plan adopted by Monroe County Ordinance No. 016-1993, and approved by the Department of Community Affairs in Rules 9J-14.020-.023, F.A.C., including maps, consistent with the Principles for Guiding Development for the Florida Keys Area of Critical State Concern, pursuant to Sections 380.0552(7) and (9), F.S. The Monroe County Comprehensive Plan adopted by Ordinance 016-1993 and approved by the Department of Community Affairs in Rules 9J-14.020- .023 supersedes the Comprehensive Plan addressed in Part I of this Chapter.

Specific Authority: 380.05(8), and 380.0552(9), F.S. Law Implemented: 380.0552, F.S.

History: New 9/15/86, Amended 10/5/89, Amended .

PART II.

28-20.100 Comprehensive Plan. The Monroe County Comprehensive Plan Policy Document and Map Atlas, which were

adopted by Monroe County Ordinance 016-1993, are hereby amended as follows:

1. 2.0 General, is amended to add:

   
   

   Policy 4

   
   

   Monroe County shall be responsible to implement the Compre- hensive Plan to the extent authorized by law. While all plan policies are contingent upon funding, many require substantial funds in order to be implemented. Therefore, the County shall be responsible to implement the objectives and policies enumerated in Policy 1 (a) and (b) above, to the extent that local funds for implementation are available, and to maintain and continue imple- mentation to the extent that additional local funds or state and federal funds, become available. Further, the County, with the assistance of the State, shall determine the ultimate fiscal cost of implementing the plan and the federal, state and local fair share of implementation. The plan shall be amended to require that within one year of the effective date of the plan, the County with the assistance of the Department of Community Affairs shall report to the Legislature the full fiscal cost of imple- menting the plan, the state and local shares of such implementa- tion, and shall include recommendations for funding initiatives and alternatives for implementation. These recommendations shall be presented to the 1995 Florida Legislature. The state shall seek the assistance of the Advisory Council for Intergovernmental Relations, if available, to implement the objective and its supporting policies.

   
   

2. Objective 101.4

   
   

   Monroe County shall regulate future development and redevel- opment to maintain the character of the community and protect the natural resources by providing for the compatible distribution of land uses consistent with the designations shown on the Future Land Use Map. [9J-5.006(3)(b)3)]

   
   

3. Policy 1014.1

The principal purpose of the Residential Conservation land use category is to encourage preservation of open space and natural resources while providing for very low-density residen- tial development in areas characterized by a predominance of undisturbed native vegetation. Very low-intensity public and utilities uses are also allowed. Maximum permitted densities shall be based upon the results of the habitat analysis required

by Division 8 of the Monroe County Land Development Regulations, as amended. [9J-5.006(3)(c)1 and 7]

(4) Policy 101.4.2

The principal purpose of the Residential Low land use cate- gory is to provide for low-density residential development in partially developed areas with substantial native vegetation. Low intensity public/institutional uses are also allowed.

(5) Policy 101.4.3

The principal purpose of the Residential Medium land use category is to recognize those portions of subdivisions that were lawfully established and improved prior to the adoption of this plan and to define improved subdivisions as those lots served by a dedicated and accepted existing roadway, have an approved potable water supply, and have sufficient uplands to accommodate the residential uses. Development within this land use category shall be limited to one residential dwelling unit for each such platted lot or parcel which existed at the time of plan adoption. Lands within this land use category shall not be further subdi- vided. [9J-5.006(3)(c) 1 and 7]

(6) Policy 101.4.5

The principal purpose of the Mixed Use/Commercial land use category is to provide for the establishment of commercial zoning districts where various types of commercial retail and office may be permitted at intensities which are consistent with the commu- nity character and the natural environment. Employee housing and commercial apartments are also permitted.

This land use category is also intended to allow for the establishment of mixed use development patterns, where appropriate. Various types of residential and non-residential uses may be permitted; however, heavy industrial uses and similarly incompatible use shall be prohibited. In order to protect environmentally sensitive lands, the following development controls shall apply to all hammocks, pinelands, and disturbed wetlands within this land use category:

1. only low intensity commercial uses shall be allowed

   
   

2. a maximum floor area ratio of 0.10 shall apply; and

   
   

3. maximum net residential density shall be zero.

(7) Policy 101.4.6

The principal purpose of the Mixed Use/Commercial Fishing land use category is to provide for the maintenance and enhancement of commercial fishing and related traditional uses such as retail, storage, and repair and maintenance which support the commercial fishing industry. Residential uses are also permitted. In order to protect environmentally sensitive lands, the following development controls shall apply to all hammocks, pinelands, and disturbed wetlands within this land use category:

1. only low intensity commercial uses shall be allowed;

2. a maximum floor area ratio of 0.10 shall apply; and

3. maximum net residential density shall be zero. [9J-5.006(3)(c)1 and 7]

(8) Policy 101.4.22

Monroe County hereby adopts the following density and inten- sity standards for the future land use categories, which are shown on the Future Land Use Map and described in Policies 101.4.1 - 101.4.17: [9J5.006(3)(c)7]

FUTURE LAND USE DENSITIES AND INTENSITIES FUTURE

================================================================

Agriculture/Aquiculture(A) 0 du 0 du 0.20-0.25

(no directly 0 rooms/spaces 0 rooms/spaces corresponding zoning)

Airport (AD) 0 du 0 du 0.10

AD zoning 0 rooms/spaces 0 rooms/spaces

Conservation (c) 0 du 0 du 0.05

(CD zoning) 0 rooms/spaces 0 rooms/spaces

Educational (E) 0 du 0 du 0.30

(no directly corresponding 0 rooms/spaces 0 rooms/spaces zoning)

Industrial (I) 1 du 2 du 0.25-.060

and MI zoning) 0 rooms/spaces 0 rooms/spaces

Institutional (INS) 0 du 0 du 0.25-0.40

(no directly corresponding 3-15 rooms/spaces 6-24 rooms/spaces zoning)

Mainland Native (MI) 0.01 du 0 du 0.10

(MN zoning) 0 rooms/spaces 0 rooms/spaces

Military (M) 6 du 12 du 0.30-0.50

(MF zoning) 10 rooms/spaces 20 rooms/spaces

Mixed Use/Commercial (MC) 1-6 du 6-18 du 0.10-0.45

(SC,UC,DR,RV,MU zoning) 5-15 rooms/spaces 10-25 rooms/spaces

Mixed Use/Commercial approx. 3-8 du 0-12 du 0.25-0.40

Fishing(MCF) 0 rooms/spaces 0 rooms/spaces (CFA, CFV, CFSD zoning)

(no directly corresponding 0 rooms/spaces 0 rooms/spaces zoning)

Recreation (R) 0.25 du 0 du 0.20

(PR zoning) 2 rooms/spaces 0 rooms/spaces

FUTURE LAND USE DENSITIES AND INTENSITIES

ratio)

================================================================

Residential Conservation(RC) 0-0.25 0 du 0-0.10

(OS and NA zoning) 2 rooms/spaces 0 rooms/spaces

Residential Low (RL) 0.25-0.50 du 0-5 du 0.20-0.25

(SS,SR,SR-L 3-5rooms/spaces 0-8 rooms/spaces zoning)

Residential Medium (RM) approx. 0.5-8 du 0 du 0.20-0.25

(IS zoning)(1 du/lot) 0 rooms/spaces

0 rooms/space

Residential High (RH) approx. 3-16 du 0-12 du 0.20-0.25

(IS-D,URM,UR zoning) (1-2 du/lot) 7-20 rooms/spaces

5-10 rooms/spaces

Notes:

The allocated and maximum net densities for submerged lands, salt ponds, freshwater ponds, and mangroves shall be 0. The allocated density for CFV zoning shall be 1 dwelling unit per lot. The maximum net density for 55 zoning shall be 0. The allocated density for IS-D and URM zoning shall be 2 and 1 dwelling units per lot, respectively. The maximum net density for IS-D and URM zoning shall be floll. For properties consisting of hammocks, pinelands or disturbed wetlands within the Mixed Use/Commercial and Mixed Use/Commercial Fishing land use categories, the floor area ratio shall be 0.10 and the maximum net residential density shall be 0.

(9) Policy 101.4.25

In order to preserve the existing community character and natural environment, Monroe County shall limit the height of structures including landfills to 35 feet. Exceptions will be allowed for appurtenances to buildings, transmission towers and other similar structures.

(10) Policy 101.5.4

Monroe County shall implement the Residential Permit Allocation and Point System via the land development regulations. The following weighting categories are hereby established as guidelines for developing the specific point values in the land development regulations:

WEIGHTING CATEGORY RANGE OF POINTS

Major 6 to 10

Moderate 3 to 5

Minor 1 to 2

Adjustments to the specific point values assigned in the land development regulations may be accomplished without an amendment to this plan, provided the adjusted point values are consistent with the weighting categories assigned in this policy. The point

system criteria and corresponding weighting categories are hereby established as shown below. The points are intended to be applied cumulatively except where specified otherwise. Dwelling units shall receive all applicable point allocations related to habitat protection.

1. Platted Subdivision Infill - Points shall be assigned to Allocation Applications for purposed dwelling unit(s) which result in the infill of a legally platted subdivision and which lots are serviced by existing infrastructure. For the purposes of this section and Section 2 below, existing infrastructure means that infrastructure in place as of

   July 13, 1992, the effective date of the Dwelling Unit Allocation Ordinance.

   
   

   WEIGHTING

   CATEGORY CRITERIA

   Major Dwelling unit(s) which are proposed within a Positive legally platted recorded subdivision and

   which lots are served by existing infrastructure including, at a minimum, potable water, electricity and paved roadways.

2. Infrastructure Availability WEIGHTING

   CATEGORY CRITERIA

   Moderate Any dwelling unit(s) which are proposed and Positive which are not within a legally platted, recorded subdivision, but which sites are

   served by existing infrastructure, including, at a minimum, potable water, electricity and paved roadways.

   
   

3. Lot Aggregation - Points shall be assigned to Allocation Applications for proposed dwelling unit(s) which include a voluntary reduction of density permitted as of right within subdivisions (residential units per legally platted, buildable lots) by aggregating vacant, legally platted, buildable lots.

   
   

   WEIGHTING

   CATEGORY CRITERIA

   Moderate The application aggregates two (2) Positive contiguous, vacant, legally platted,

   buildable lots.

   Moderate Each additional contiguous, vacant, legally

   Positive platted, buildable lot aggregated over two (2).

   
   

4. Affordable Housing - Points shall be assigned to Allocation Applications for proposed dwelling units which contribute to the supply of affordable housing in Monroe County.

   
   

   WEIGHTING

   CATEGORY CRITERIA

   Moderate Proposed dwelling unit(s) which meet the Positive affordable housing guidelines set forth in

   Policy 601.1.11.

   
   

5. Land Dedication - Points shall be assigned to Allocation Applications for proposed dwelling units which include a voluntary dedication to Monroe County of vacant, buildable lots or unplatted, buildable land within areas proposed for acquisition by governmental agencies for purposes of conservation or resource protection.

   
   

   WEIGHTING

   CATEGORY CRITERIA

   Minor Application includes dedication to Monroe Positive County of one of one vacant, legally platted,

   buildable lot or at least one acre of unplatted, buildable land located within Conservation Areas or areas proposed for acquisition by governmental agencies for purposes of conservation or resource protection.

   Minor Additional minor positive point(s) shall be Positive assigned for each additional legally platted,

   buildable lot, and for each one acre of unplatted, buildable land located in areas proposed for acquisition by governmental agencies for purposes of conservation or resource protection, which lot(s) or acreage is dedicated to Monroe County.

   
   

6. Habitat Protection

   1. If the approved clearing area includes more than one habitat type/habitat quality group, points shall b assigned to the application for development on the

      basis of the following formula:

      total points assigned -

      (area of clearing in Group 1) x (Group 1 point value) (area in parcel to be cleared)

      plus

      
      

      plus

      (area of clearing in Group 2) x (Group 2 point value) (area in parcel to be cleared)

      
      

      (area of clearing in Group 3) x (Group 3 point value) (area in parcel to be cleared) plus

      (area of clearing in Group 4) x (Group 4 point value) (area in parcel to be cleared)

   2. Determination of the quality of undisturbed high hammock, low hammock and pinelands shall be made through utilization of the habitat analysis indices and scores (HEI), applied pursuant to the Monroe County Land Development Regulations.

      
      

7. Threatened, Endangered or Species of Special Concern Animal Species

   
   

   1. Points shall be assigned to Allocation Applications for proposed dwelling unit(s) based on the probable impacts

      of the proposed development on the successful protection and recovery of a threatened or endangered animal species in its natural habitat. Points shall be assigned as follows:

      
      

      WEIGHTING

      CATEGORY CRITERIA

      Major Dwelling unit(s) within a known habitat of Negative threatened/endangered or species of special

      concern, except for marine turtles and the piping plover which are specifically addressed below.

      Major Dwelling unit(s) within 100 feet of any known Negative nesting area for marine turtles.

      Major Dwelling unit(s) within 500 feet of any known Negative known nesting or resting area of the piping

      plover.

      Moderate Dwelling unit(s) within a probable or Negative potential habitat of threatened/endangered or

      species of special concern habitat.

      Minor Dwelling unit(s) within the habitat of a Negative wide-ranging threatened/endangered or species

      of special concern.

   2. All habitat categories for threatened and endangered species are mapped on the "Protected Animal Species Map." Monroe County shall within six months of the effective date of the Plan amend the maps to reflect the habitat range of species of special concern.

8. Critical Habitat Areas - Points shall be assigned to Allocation Applications for proposed dwelling unit(s) located within critical habitat areas of the Florida Keys. Points shall be assigned as follows:

   Weighting

   
   

   CATEGORY CRITERIA

   Major Any dwelling unit(s) proposed on Big Negative Pine Key, No Name Key, Ohio Key and

   North Key Largo.

   Major Dwelling unit(s) proposed within Negative Priority I and Priority II acquisition

   areas of the National Key Deer Refuge.

   Major Dwelling unit(s) proposed within the Negative Coupon Bight or C.A.R.L. acquisition areas. Major Dwelling unit(s) proposed within the Negative "secondary zone", as defined by the U.S.

   Fish and Wildlife Service, for nesting sites of the Southern Bald Eagle.

   
   

9. Acreage Tract Density Reduction - Points shall be assigned to Allocation Applications for proposed dwelling unit(s) which include a voluntary reduction of density permitted as of right:

   
   

   WEIGHTING

   CATEGORY CRITERIA

   Minor Application voluntarily reduces allocated Positive density permitted as of right (residential

   units per acre) on unplatted, acreage tracts by between fifty (50) and sixty-six (66) percent;

   Moderate Application voluntarily reduces allocated Positive density permitted as of right on unplatted,

   acreage tracts by between sixty-seven (67) and seventy-five (75) percent;

   Major Application voluntarily reduces allocated Positive density permitted as of right on unplatted,

   acreage tracts by greater than seventy-five

   (75) percent.

   
   

10. Perseverance Points - Minor positive point(s) shall be awarded for each year that the applicant remains in the allocation system.

    
    

11. Water Conservation - Points shall be assigned to Allocation Applications for proposed dwelling units which include water

    conservation measures.

    
    

    WEIGHTING

    CATEGORY CRITERIA

    Minor Application includes ultra-low flow plumbing Positive fixtures for all toilets, sinks, and showers:

    Toilets 1.6 gal/flush

    Showerheads 2.5 gal/min

    Faucets 2.0 gal/min

    Minor Application includes either:

    Positive (a) a primary water source consisting of a cistern (12,500 gallon minimum) or reverse osmosis facility (200 gallon per day minimum) ; or

    (b) a secondary water source consisting of a cistern (2,500 gallon minimum or reverse osmosis facility (50 gallon per day minimum.) Points for alternative water systems shall not be awarded in areas in which FKAA water connection is prohibited, as described in Chapter 48-7, F.A.C.

    
    

12. Energy Conservation - Points shall be assigned to Allocation Applications for proposed dwelling units which include energy conservation measures.

    Weighting

    
    

    CATEGORY CRITERIA

    Minor HVAC unit has an Energy Efficiency Positive Rating of 12 or better.

    Minor Dwelling unit has an Energy Performance Positive Index of 70 or lower, as calculated for

    Section 9 - Residential Point System Method of the Florida Energy Efficiency Code for building construction.

    Minor Application includes either:

    Positive (a) a solar hot water heater

    1. photovoltaic panels; or

    2. a wind driven energy generator

    Points-shall not be awarded for these devices in areas not served by the Florida Keys Electric Cooperative or the City Electric System.

    
    

13. Structural Integrity of Construction WEIGHTING

    CATEGORY CRITERIA

    Minor Application exceeds the minimum flood Positive elevation required by the floodplain

    management standards section of the Monroe County Land Development Regulations by one

    (1) foot or more.

    Minor Dwelling unit meets a wind load of 130 mph Positive or greater, as certified by a qualified

    engineer/architect.

    Minor Additional point(s) shall be given to Positive dwelling structures meeting a wind load of

    155 mph or greater, as certified by a qualified engineer/architect.

    
    

14. Coastal High Hazard Areas - Points shall be assigned for development within coastal high hazard areas.

    
    

    WEIGHTING

    CATEGORY CRITERIA

    Minor Development proposed within "A" zones on the Negative FEMA flood insurance rate maps.

    Major Development proposed within "V" zones on the Negative FEMA flood insurance rate maps.

    Minor Development proposed within "X" zones on the Positive FEMA flood insurance rate maps.

    
    

15. Coastal Barrier Resources System - Major negative points shall be assigned to developments proposed within units of the Coastal Barrier Resources System.

    
    

16. Offshore Islands/Conservazion Land Protection Area - Nega- tive points shall be assigned to allocation applications for proposed dwelling units located on offshore islands or within Conservation Land Protection Areas.

    WEIGHTING

    CATEGORY CRITERIA

    Major Development on Offshore Islands. Negative

    Minor Development which may impact Conservation Negative Lands.

    
    

17. Transferable Development Rights - Points shall be assigned to allocation applications for proposed dwelling units which utilizes transferable development rights.

    
    

    WEIGHTING

    CATEGORY CRITERIA

    Minor Points shall be assigned to any unit which Positive uses TDR's.

    
    

18. Historic Resources - Points shall be assigned to allocation applications for developments which affect historic or archaeological resources.

    
    

    WEIGHTING

    CATEGORY CRITERIA

    Major Major negative points shall be assigned to Negative any to any development which adversely

    affects, removes or destroys historic structures located within local or national districts or destroys known archaeological resources. The Secretary of Interior's guidelines shall be used in making this determination.

    Major Development which preserves, restores or Positive enhances historic or known archaeological

    resources.

    
    

    (10) Policy 101.5.5

    
    

    Monroe County shall implement the Non-Residential Permit Allocation and Point System via the land development regulations. The following weighting categories are hereby established as guidelines for developing the specific point values in the land development regulations. The points are intended to be applied cumulatively except where specified otherwise.

    
    

    Weighting Category Range of Points Major 6 to 10

    Moderate 3 to 5

    Minor 1 to 2

    
    

    Adjustments to the specific point values assigned in the land development regulations may be accomplished without an amendment to this plan, provided the adjusted point values are consistent with the weighting categories assigned in this policy. The point system criteria and corresponding weighting categories are hereby established as shown below. The points are intended to be applied cumulatively except where specified otherwise. Nonresidential development shall receive all applicable point allocation related to habitat protection.

    
    

    1. Commercial Area Infill - Points shall be assigned to Allocation Applications for purposed nonresidential

       developments which result in the infill of commercial areas which are serviced by existing infrastructure.

       
       

       WEIGHTING

       CATEGORY CRITERIA

       Major Nonresidential development which is Positive proposed as an addition to an existing

       nonresidential development.

    2. Infrastructure Availability WEIGHTING

       CATEGORY CRITERIA

       Moderate Any nonresidential development site Positive which is served by existing

       infrastructure, including at a minimum, potable water, electricity and paved roadways. For the purposes of this section, "existing infrastructure" means that infrastructure in place as of July 13, 1992, the effective date of the Dwelling Unit Allocation Ordinance.

       
       

    3. Intensity Reduction - Points shall be assigned to Allocation Applications for proposed nonresidential developments which include a voluntary reduction of intensity.

       
       

       WEIGHTING

       CATEGORY CRITERIA

       Moderate The proposed development reduces Positive permitted floor area ratio by 35 percent

       or more.

       
       

    4. Land Dedication - Points shall be assigned to Allocation Applications for proposed nonresidential developments which include a voluntary dedication to Monroe County of vacant, buildable lots or unplatted, buildable land within areas proposed for acquisition by governmental agencies for purposes of conservation or resource protection.

       
       

       WEIGHTING

       CATEGORY CRITERIA

       Minor Application includes dedication to Positive Monroe County of one vacant, legally

       platted, buildable lot or at least one

       acre of unplatted, buildable land located within Conservation Areas or areas proposed for acquisition by governmental agencies for purposes

       of conservation or resource protection. Minor Additional minor positive point(s) shall Positive be assigned for each additional legally

       platted, buildable lot, and for each one acre of unplatted, buildable land located in areas proposed for acquisition by governmental agencies for purposes of conservation or resource protection, which lot(s) or acreage is dedicated to Monroe County.

       
       

    5. Habitat Protection

       
       

       
       

       plus

       
       

       plus

       1. If the approved clearing area includes more than one habitat type/habitat quality group, points shall be assigned to the application for development on the basis of the following formula: total points assigned =

          
          

          (area of clearing in Group 1) x (Group 1 point value) (area in parcel to be cleared)

          (area of clearing in Group 2) x (Group 2 point value) (area in parcel to be cleared)

          (area of clearing in Group 3) x (Group 3 point value)

          
          

          
          

          plus

          (area in parcel to be cleared)

          
          

          (area of clearing in Group 4) x (Group 4 point value) (area in parcel to be cleared)

       2. Determination of the quality of undisturbed high hammock, low hammock and pinelands shall be made through utilization of the habitat analysis indices and scores (HEI), applied pursuant to the Monroe County Land Development Regulations.

          
          

    6. Threatened or Endangered or Animal Species of Special Concern

       
       

       1. Points shall be assigned to Allocation Applications for proposed nonresidential development based on the probable impacts of the proposed development on the successful protection and recovery of a threatened or endangered or animal species of special concern in its natural habitat. Points shall be assigned as follows:

          
          

          WEIGHTING

          CATEGORY CRITERIA

          Major Nonresidential development within a Negative known habitat of documented

          threatened/endangered or species of special concern, except for marine turtles and piping plover which are specifically addressed below.

          Major Nonresidential development within 100 Negative feet of any known nesting area for

          marine turtles.

          Major Nonresidential development within 500 Negative feet of any known nesting or resting

          area of the piping plover.

          Moderate Nonresidential development within a Negative probable or potential habitat of

          threatened/endangered or species of special concern habitat.

          Minor Nonresidential development within the Negative habitat of a wide-ranging

          threatened/endangered or species of special concern.

          
          

       2. All habitat categories for threatened and endangered species are mapped on the "Protected Animal Species Map." Monroe County shall within six months of the effective date of the Plan amend the maps to reflect the habitat range of species of special concern.

          
          

    7. Critical Habitat Areas - Points shall be assigned to Allocation Applications for proposed nonresidential development located within critical habitat areas of the Florida Keys. Points shall be assigned as follows:

       
       

       WEIGHTING

       CATEGORY CRITERIA

       Major Any nonresidential development proposed on

       Negative Big Pine Key, No Name Key, Ohio Key and North Key Largo.

       Major Nonresidential development proposed within Negative Priority I and Priority II acquisition areas

       of the National Key Deer Refuge.

       Major Nonresidential development proposed within Negative the Coupon Eight or C.A.R.L. acquisition

       area.

       Major Nonresidential development proposed within Negative the "secondary zone", as defined by the U.S.

       Fish and Wildlife Service, for nesting sites of the Southern Bald Eagle.

       
       

    8. Perseverance points - Minor positive point(s) shall be awarded for each year that the applicant remains in the allocation system.

       
       

    9. Water Conservation - Points shall be assigned to Allocation Applications for proposed nonresidential developments which include water conservation measures.

       
       

       WEIGHTING

       CATEGORY CRITERIA

       Minor Project is designed according to xeriscape Positive principles such that vegetation is 100-

       native plants, and rainfall is collected and directed to the landscaped areas.

       Minor All toilet fixtures in the proposed non- Positive residential development are ultra-low flow,

       using 1.6 gal/flush or less.

       
       

    10. Energy Conservation - Points shall be assigned to Allocation Applications for proposed nonresidential development which include conservation measures.

        
        

        WEIGHTING

        CATEGORY CRITERIA

        
        

        Minor The HVAC unit has an Energy Efficiency Rating Positive of 12 or better, or the entire area is outside. Minor The building has an Energy Performance Index Positive of 70 or lower, as calculated for Section 9

        Residential Point System Method of the Florida Efficiency Code for building construction, or the entire area is outside.

        Minor Application includes either: Positive (a) a solar hot water heater

        1. photovoltaic panels; or

        2. a wind driven energy generator

Points shall not be awarded for these devices in areas not served by the Florida Keys Electric Cooperative or the City Electric System.

1. Structural Integrity of Construction WEIGHTING

CATEGORY CRITERIA

Minor Application exceeds the minimum flood Positive elevation required by the floodplain

management standards section of the Monroe County Land Development Regulations by one

(1) foot or more.

Minor Nonresidential structure meets a wind load Positive of 130 mph or greater, as certified by a

qualified engineer/architect.

Moderate Additional point(s) shall be given to non- Positive residential structures meeting a wind load of

155 mph or greater, as certified by a qualified engineer/architect.

1. Coastal High Hazard Areas - Points shall be assigned for development within coastal high hazard areas.

   
   

   WEIGHTING

   CATEGORY CRITERIA

   Minor Development proposed within "A" zones on the Negative FEMA flood insurance rate maps.

   Major Development proposed within "V" zones on the Negative FEMA flood insurance rate maps.

   Minor Development proposed within "X" zones on the Positive FEMA flood insurance rate maps.

   
   

2. Coastal Barrier Resources System - Major negative points shall be assigned to developments proposed within units of the Coastal Barrier Resources System.

3. Highway Access WEIGHTING

   CATEGORY CRITERIA

   Moderate The parking lot is connected to an adjacent, Positive nonresidential parking lot; or the applicant

   records a driveway easement in favor of the public to connect the applicant's parking lot to an adjacent, nonresidential lot; or the development does not propose an additional driveway onto U.S.1.

4. Landscaping WEIGHTING

   CATEGORY CRITERIA

   Moderate The project provides twice the number of Positive native landscape plants than the number

   required by the Monroe County Land Development Regulations

   Minor Additional point(s) shall be assigned if Positive twenty-five (25) percent of the native plants

   are listed as threatened or endangered plants native to the Florida Keys.

5. Disaster Recovery WEIGHTING

   CATEGORY CRITERIA

   Moderate The development includes a permanently Positive installed, non-portable generator.

   Minor The development includes permanent wiring set Positive up to accommodate auxiliary power generation.

   
   

6. Offshore Islands/Conservation Land Protection Area -

   
   

   Negative points shall be assigned to allocation applications for proposed nonresidential development located on offshore islands or within Conservation Land Protection Areas.

   
   

   WEIGHTING

   CATEGORY CRITERIA

   Major Development on Offshore Islands Negative

   Minor Development which may impact Conservation Negative Lands.

   
   

7. Transferable Development Rights - Points shall be assigned to allocation applications for proposed non- residential development which utilizes transferable development rights.

   
   

   WEIGHTING

   CATEGORY CRITERIA

   Minor Moderate positive points shall be assigned to Positive any nonresidential development which uses

   TDR' s.

   
   

8. Historic Resources - Points shall be assigned to allocation applications for developments which affect historic or archaeological resources.

WEIGHTING

CATEGORY CRITERIA

Major Major negative points shall be assigned to Negative any development which adversely affects,

removes or destroys historic structures located within local or national districts or destroys known archaeological resources. The Secretary of Interior's guidelines shall be used in making this determination.

Major Development which preserves, restores or Positive enhances historic or archaeological resources.

(11) Policy 101.5.7

Potential Development Credits (PDCs) - An applicant may have the option of receiving positive points, called Potential Development Credits (PDCs), for transferring development rights away from a sender site for development proposed on an eligible receiver site, as specified in Objective 101.13 and related policies.

(12) Policy 101.8.10

With the following exception, nonconforming structures which are damaged or destroyed so as to require substantial improvement shall be repaired or restored in conformance with all applicable provisions of the current Monroe County Code. Substantial improvement or reconstruction of nonconforming single-family homes shall comply with the setback provisions of the Monroe County Land Development Regulations except where strict compliance would result in a reduction in lot coverage as compared to the pre- destruction footprint of the house. In such cases, the maximum shoreline setback shall be maintained and in no event, shall the shoreline setback be less than ten (10) feet from mean high water.

(13) Policy 101.12.4

Upon adoption of the Comprehensive Plan, Monroe County shall require that the following analyses be undertaken prior to finalizing plans for the siting of any new or the significant expansion (greater than 25 percent) of any existing public facility:

1. assessment of needs;

2. evaluation of alternative sites and design alternatives for the selected sites; and

3. assessment of direct and secondary impacts on surrounding land uses and natural resources.

The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach/berm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality hammocks and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, offshore islands, and Conservation Land Protection Areas.

(14) Policy 101.13.9

In conjunction with the first annual review of the Point System, the following guidelines shall be used to establish positive point awards in the Nonresidential Permit Allocation System for each PDC:

(15) Policy 101.18.2(2)(b)

(b) The applicant acting in good faith, has made such a substantial change of position or has incurred such extensive obligations and expenses that it would be highly inequitable or unjust to affect such rights by requiring the applicant to now conform to the comprehensive plan and land development regula- tions. Substantial changes of position or expenditures incurred prior to the official County act upon which the vested rights claim is based shall not be considered in making the vested rights determination; and

(16) Policy 101.18.5(1)

It is the policy of Monroe County that neither the provisions of this Comprehensive Plan nor the Land Development Regulations shall deprive a property owner of all reasonable economic use of a parcel of real property which is a lot or parcel of record as of the date of adoption of this Comprehensive Plan. Accordingly, Monroe County shall adopt a beneficial use procedure under which an owner of real property may apply for relief from the literal application of applicable land use regulations or of this plan when such application would have the effect of denying all economically reasonable use of that property unless such deprivation is shown to be necessary to prevent a nuisance or to protect the health, safety and welfare of its citizens under Florida Law. For the purpose of this policy, all reasonable economic use shall mean the minimum use of the property necessary to avoid a taking within a reasonable period of time as established by current land use case law.

(17) Policy 101.18.5(3)

Development approved pursuant to a beneficial use determination shall be consistent with all other objectives and policies of the Comprehensive Plan and Land Development Regulations unless specifically exempted from such requirements in the final beneficial use determination.

(18) Policy 102.1.1

Upon adoption of the Comprehensive Plan, the County shall utilize the Environmental Standards, found in Section 9.5-336 through 9.5-342 of the Land Development Regulations (hereby Incorporated by reference) to protect submerged lands and wetlands. Accordingly, the open space requirement shall be one hundred (100) percent of the following types of wetlands:

1. submerged lands;

2. mangroves;

3. salt ponds;

4. freshwater wetlands and

5. freshwater ponds.

Upon adoption of the Comprehensive Plan the County shall further protect its wetlands by requiring a one hundred (100) percent open space requirement for undisturbed salt marsh and

buttonwood wetlands and by requiring a 50 foot buffer around freshwater resources.

Allocated density (dwelling units per acre) shall be assigned to freshwater wetlands and undisturbed saltmarsh and buttonwood wetlands only for use as transferable development rights away from these habitats. Submerged lands, salt ponds, freshwater ponds, and mangroves shall not be assigned any density or intensity.

[9J-5.006(3)(c)1 and 6]

(19) Policy 102.2.1

Monroe County shall adopt revised environmental standards and environmental design criteria as indicated in Conservation and Coastal Management Policy 204.2.6. These revised standards and criteria will eliminate the net loss of disturbed wetlands. Where possible, on-site mitigation shall be required in order to offset any loss of disturbed wetlands by requiring revegetation of an area equal or greater in size than the area proposed for fill. If on-site mitigation is not possible, restoration fees shall be paid pursuant to a wetlands restoration fund. [9J-5.006 (3)(c)1 and 6; also see Policy 204.2.10 and 204.3.4]

(20) Policy 103.2.4

Upon adoption of the Comprehensive Plan, Monroe County shall require that the following analyses be undertaken prior to final- izing plans for the siting of any new public facilities or the significant expansion (greater than 25 percent) of existing public facilities.

1. assessment of needs;

2. evaluation of alternative sites and design alternatives for the selected sites; and

3. assessment of impacts on surrounding land uses and natural resources.

The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach/berm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality hammocks and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, offshore islands, and Conservation Land Protection Areas.

Monroe County shall require that public facilities be developed on the least environmentally sensitive lands and shall prohibit the location of public facilities on North Key Largo, unless no feasible alternative exists and such facilities are required to protect the public health, safety, or welfare.

(21) Policy 203.1.3

Monroe County shall require minimum vegetated setbacks of fifty (50) feet to be maintained as an open space buffer for development occurring adjacent to all types of wetlands including mangroves except as provided for in Policy 204.2.2 and 204.2.3.

If a 50-foot setback results in less than 2,000 square feet of buildable area, then the setback may be reduced to the minimum necessary to allow for 2,000 square feet of buildable area; however, in no event shall the setback be less than 20 feet. "Development" shall include all activities as currently defined in the F.S. 380.05-compliant Land Development Regulations, hereby incorporated by reference.

(22) Policy 204.2.1

Upon adoption of the Comprehensive Plan, the County shall utilize the Environmental Standards, found in Section 9.5-336 through 9.5-342 of the Land Development Regulations (hereby incorporated by reference) to protect submerged lands and wetlands. Accordingly, the open space requirement shall be one hundred (100) percent of the following types of wetlands:

1. submerged lands;

2. mangroves;

3. salt ponds;

4. freshwater wetlands, and

5. freshwater ponds.

Upon adoption of the comprehensive plan the County shall further protect its wetlands by requiring a one hundred (100) percent open space requirement for undisturbed salt marsh and buttonwood wetlands and by requiring a 50 foot buffer around freshwater resources.

Allocated density (dwelling units per acre) shall be assigned to freshwater wetlands and undisturbed saltmarsh and buttonwood wetlands only for use as transferable development rights away from these habitats. Submerged lands, salt ponds, freshwater ponds,

and mangroves shall not be assigned any density or intensity. [9J-5.012 (3)(c)l and 2; 9J-5.013(2)(c) 6]

(23) Policy 204.2.6

Upon adoption of the Comprehensive Plan, Monroe County shall adopt revised environmental standards and environmental design criteria which establish minimum vegetated setbacks of fifty (50) feet to be maintained as an open space buffer for development occurring adjacent to all types of wetlands, except as provided for in Policy 204.2.2 and 204.2.3. If a 50-foot setback results in less than 2,000 square feet of buildable area, then the set- back may be reduced to the minimum necessary to allow for 2,000 square feet of buildable area; however, in no event shall the setback be less than 20 feet. "Development" shall include all activities as currently defined in the F.S. 380.05-compliant Land Development Regulations, hereby incorporated by reference. [9J- 5.012(3)(c)1 and 2; 9J-5.013(2)(c)6]

(24) Policy 205.2.6

The open space requirements for native upland vegetation communities which exhibit functional integrity and viability shall meet or exceed their existing percentages, as follows:

1. high hammock

   • high quality 0.80

   • moderate quality 0.60

   • low quality 0.40

   • disturbed 0.40

2. low hammock

   • high quality 0.80

   • moderate quality 0.60

   • low quality 0.40

   • disturbed 0.40

3. palm hammock 0.90

4. cactus hammock 0.90

5. pinelands

   • high quality 0.80

   • low quality 0.60

   • disturbed 0.60

6. scarified 0.20

The definition for open space shall be that currently contained in Section 9.5-4(0-3) of the F.S. 380.05-compliant Land Development Regulations, hereby incorporated by reference.

(25) Policy 301.6.4

All roadway improvements shall be consistent with the policies of the Coastal Management and Conservation Element.

(26) Policy 1401.4.10

Monroe County shall use the following guidelines for interpreting and applying level of service standards to development order applications. For the purposes of this policy, reserve capacity refers to the capacity of existing public facilities plus the capacity of public facilities which do not exist but which meet the applicable requirements of Policy 1401.4.7, less the existing demand for those facilities and the demand expected to be created for those facilities by approved but unbuilt development as determined by the databases in Policy 1401.4.9

1. Potable Water - The County shall not render a final concurrency determination unless the quantity of water available under the FKAA Consumptive Use Permit meets or exceeds the estimated water demand of the proposed development together with the estimated water demand of all existing and committed development.

2. Solid Waste - The County shall not render a final concurrency determination unless capacity available at solid waste facilities either owned by or under contract with Monroe County meets or exceeds the estimated daily solid waste generation of the proposed development together with the estimated daily solid waste generation of all existing and committed development for a period of three (3) years from development approval.

3. Sanitary Sewer - The County shall not render a final concurrency determination unless the proposed development will be served by a treatment plant permitted by the Department of Environmental Protection with adequate reserve capacity to accommodate the impact of the proposed development or an on-site sewage disposal system permitted by the Department of Health and Rehabilitative Services.

4. Drainage - The County shall not render a final concurrency determination unless the proposed development will be served by stormwater management facilities approved by the South Florida Water Management District; or has received an individual construction permit or written authorization to proceed pursuant to a general permit from the South Florida Water Management District.

5. Parks - The County shall not render a final concurrency

   determination unless the park facilities either in existence or programmed within the next year will meet or exceed the estimated park demand of the proposed development together with the estimated park demand of all existing and committed development. Within each impact area for park facilities, the County shall determine the population capacity of both resource-based and activity-based facilities by multiplying the level of service standard by the number of acres of existing or programmed parks.

6. Roads - The County will not render a final concurrency determination unless the estimated traffic impacts of the proposed development, together with the estimated traffic impacts of all existing and committed development, will not exceed either the segment or overall reserve capacity of U.S.1, as determined by the U.S. 1 Level of Service Task Force Methodology. The trip assignment for proposed developments with an estimated trip generation rate of more than 10 trips per day shall be based on a traffic impact report prepared by the developer based on a professionally accepted methodology. The trip assignment for proposed developments with a trip generation rate of 10 trips or less (such as a single family home) shall be limited to the segment of U.S. 1 most directly impacted by the development.

1. Map Atlas, Future Land Use Map Series:

   1. Designate wetland portion of MC district north of and directly abutting U.S. 1 at approximately Mile Marker 21.5 on Cudjoe Key RC.

   2. Designate MC parcel north of U.S. 1 on Little Torch Key on Barry Avenue, Lots 4-9, Barry Beach Subdivision RL.

   3. Designate RM district on Cooks Island, Newfound Harbor, T 675, R 29E to RL. (d) Designate RM district in Dorns Subdivision on Big Torch Key RL.

   1. Designate wetland portion of MC parcel on Big Pine Key south of U.S. 1 between Mile Markers 30 and 31 RC.

   2. Designate RH parcel on Vaca Key, north of U.S. 1 at Mile Marker 33, Section 32, T 655, R 33E RL.

   3. Designate RH parcel on Vaca Key, approximately 1000 feet north of U.S. 1 at Mile Marker 33, Sections 5 and 32, T66S, R 33E RL.

   4. Designate RH parcel on Vaca Key, approximately 300 feet north of U.S. 1 at Mile Marker 33, Section 5, T66S, R 33E RC.

   5. Designate MC district on Fat Deer Key, Coco Plum Beach Subdivision, south side of Coco Plum Drive, Lots 13-20 RC.

   6. Designate RH parcel on Fat Deer Key, Coco Plum Beach Subdivision, Lots 64 and 65 RC.

   7. Designate RH parcel on Fat Deer Key, Coco Plum Beach Subdivision, part of Lot 1, Lots 2-6 and Lime Grove Estates Subdivision, Block 6, Lots 8-10 RL.

   8. Designate MC parcel where overlay exists on Windley Key on north side of U.S. 1 at approximately Mile Marker 85.4 RC.

   9. Designate RM parcel on Key Largo, south of and directly abutting U.S. 1 at Mile Marker 104, west of Largo Sound Village RL.

   
   

2. Map Atlas Future Transportation Map Series: .LS2

   (a) Designate "Arterial: Two Lanes" on all of Big Pine Key, Map 6.

   
   

3. Table 3.2 Capital Improvements to be Provided by the Florida Department of Transportation (FDOT) and Florida Keys Aqueduct Authority (FKAA)

   
   

   PROJECT	TARGET FISCAL YEAR(S)		ESTIMATED COST
   Potable Water Improvements (FKAA)(2) Distribution Upgrade		92/93-94/95	$14,100,000
   Projects		1995/96-2004/05	$19,300,000
   Future 5 MG Tank
   (or Stock Island Aquifer Storage Recovery) Long Key Pump Station	1995/96-2004/05 92/93-94/95		$ 1,020,000 $ 900,000
   renovation
   Cathodic Protection-	92/93-94/95		$ 400,000
   Phases 3,4,5,6	1995/96-2004/05		$ 1,000,000

   24" main from

   Sugarloaf Key 92/93-94/95 $ 1.170,000

   
   

4. Copies of Monroe County Map Series which are referenced in these rules are available from the Department of Community Affairs, 2740 Centerview Drive, Tallahassee, Florida 32399-2100, and from the Monroe County Growth Management Division.

Specific Authority: 380.05(8), and 380.0552(9), F.S. Law Implemented: 380.0552, F.S.

History: New

NAME OF PERSON ORIGINATING RULE AMENDMENTS:

Robert E. Bradley, Secretary, Administration Commission, The Capitol, Room 2105, Tallahassee, Florida, 32399-0001.

NAME OF SUPERVISOR OR PERSON WHO APPROVED RULE AMENDMENTS:

Administration Commission

DATE RULE APPROVED: December 12, 1995 ADMINISTRATION COMMISSION

RULE CHAPTER TITLE: RULE CHAPTER NO.:

Land Planning Regulations for the Florida Keys Area of Critical

State Concern, Monroe County 28-20.100

RULE TITLE: RULE NO.:

Fourth Administration Commission Amendments to the Monroe County Comprehensive Plan Policy Document and Map Atlas, as adopted by Monroe

County Ordinance 016-1993 28-20.100

NOTICE OF WITHDRAWAL

Notice is hereby given that the following policies in the above cited rule have been withdrawn as published in Volume 19, Number 40, Florida Administrative Weekly, October 8, 1993:

10) Policy 216.1.19

11) Policy 901.1.1(A)(2)(c)

Docket for Case No: 94-004255RX

Orders for Case No: 94-004255RX