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HomeMy Public PortalAbout1995-25 Department of Community Affairs Master Plan settlement agreementRESOLUTION NO. 95-25 A RESOLUTION OF THE VILLAGE OF KEY BISCAYNE, FLORIDA; APPROVING THE TERMS OF A STIPULATED SETTLEMENT AGREEMENT BETWEEN THE VILLAGE AND THE FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS CONCERNING THE VILLAGE'S MASTER PLAN; AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT; DIRECTING THE VILLAGE CLERK TO TRANSMIT A COPY OF THE EXECUTED AGREEMENT; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on August 16, 1994, the Village adopted the Key Biscayne Master Plan pursuant to Ordinance 94-6; and WHEREAS, the Florida Department of Community Affairs issued a Notice of Intent to find the Village's Master Plan not in compliance with state law; and WHEREAS, the objections of the state are the subject of a pending administrative proceeding; and WHEREAS, the Village and Florida Department of Community Affairs wish to amicable resolve the objections in accordance with the terms of the attached Stipulated Settlement Agreement (the "Agreement"); and WHEREAS, the Village Council held a public hearing on July 11, 1995 to consider the Agreement; and WHEREAS, the Village Council has determined that it is in the best interest of the Village to comply with the terms of the Agreement; NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF KEY BISCAYNE AS FOLLOWS: Section 1. That the Village Council approves the terms of the attached Stipulated Settlement Agreement. Section 2. That the Mayor is hereby authorized to execute the attached Stipulated Settlement Agreement between the Village and the Florida Department o Community Affairs. Section 3. That the Village Clerk is hereby directed to transmit a copy of the executed Stipulated Settlement Agreement to the Florida Department of Community Affairs. Section 4. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this 11th day of July , 1995. ATTEST: IDO H. IN'-UANZO, JR., CMC, VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: STEPHEN\ . HEL , VI LAGE ATTORNEY STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, v. VILLAGE OF KEY BISCAYNE, Respondent. CASE NO. 94-5883GM STIPULATED SETTLEMENT AGREEMENT Petitioner, Department of Community Affairs (Department), and Respondent, Village of Key Biscayne (Village) , hereby stipulate and agree as follows: GENERAL PROVISIONS 1. Definitions. As used in this agreement, the following words and phrases shall have the following meanings: a. Act: The Local Government Comprehensive Planning and Land Development Regulation Act, as codified in Chapter 163, Part II, Florida Statutes (1994 Supp). b. Agreement: This stipulated settlement agreement. c. Comprehensive Plan or plan: The Village's comprehensive plan adopted by Ordinance No. 94-6 on August 16, 1994. d. DOAH: The Florida Division of Administrative Hearings. e. In compliance or into compliance: Consistent with Sections 163.3177, 163.3178 and 163.3191, Florida Statutes, Section 187.201, Florida Statutes, the applicable regional policy plan, and Chapter 9J-5, Florida Administrative Code. f. Notice: The notice of intent issued by the Department to which was attached its statement of intent to find the plan not in compliance. g• Petitions: The petition for administrative hearing and relief filed by the Department in this case. h. Remedial Actions: Remedial plan amendments, submission of support documents or other actions described in the statement of intent or this agreement as actions which must be completed to bring the plan into compliance. i. Remedial Plan Amendments or Remedial Amendments: Amendments to the plan or support documents, the need for which is identified in this agreement, including exhibits, Village must adopt to complete all remedial actions. amendments adopted pursuant to this agreement must, and which the Remedial plan in the opinion of the Department, be consistent with and substantially similar in concept and content to the ones identified in this agreement or be otherwise acceptable to the Department. j. Statement of Intent: The statement of intent to find the plan not in compliance issued by the Department in this case. k. Support Documents: The studies, inventory maps, surveys, data, inventories, listings or analyses used to develop and support the plan. 2. Entire Agreement. This is the entire agreement between the parties and contains all the terms and conditions agreed to 2 by the parties. No verbal or written assurance or promise is effective or binding unless included in this document. 3. Approval by Governing Body. This agreement has been approved by the Village at a public hearing advertised in an advertisement published at least 10 but not more than 15 days prior to the hearing in the format prescribed for advertisements in Section 163.3184(15)(c) and Section 163.3187, Florida Statutes. This agreement has been executed by the appropriate officer as provided in the Village's charter or other regulations. 4. Changes in Law. Nothing in this agreement shall be construed to relieve either party from adhering to the law, and in the event of a change in any statute or administrative regulation inconsistent with this agreement, the statute or regulation shall take precedence. 5. Other Persons Unaffected. Nothing in this agreement shall be deemed to affect the rights of any other person under the law. 6. Attorney Fees and Costs. Each party shall bear its own costs, including attorney fees. 7. Effective Date. This agreement shall become effective upon the last date of signing by the parties. 8. Purpose; Not Establishing Precedent. The parties enter into this agreement in a spirit of cooperation for the purpose of avoiding costly, lengthy and unnecessary litigation and in recognition of the desire for the speedy and reasonable resolution of disputes arising out of or related to the comprehensive plan. The acceptance of proposals for purposes of this agreement is part 3 of a negotiated agreement affecting many factual and legal issues and is not an endorsement of, and does not establish precedent for, the use of these proposals in any other circumstances or by any other local government. 9. Department Powers. The Department is the state land planning agency and has the power and duty to administer and enforce the Act and to determine initially whether a plan or plan amendment is in compliance. 10. Exhibits. Exhibits A and B are hereby incorporated by reference. 11. Negotiation of Agreement. The Department issued its notice and statement of intent to find the comprehensive plan not in compliance, and filed the petition, in this case to that effect. Subsequent to the filing of the petition, the parties conferred and agreed to resolve the issues in the petition, notice and statement of intent through this agreement. It is the intent of this agreement to resolve fully all issues between the parties in this proceeding. 12. Dismissal. If the Village completes the remedial actions required by this agreement, including the adoption of required plan amendments as set forth herein, the Department shall issue cumulative notice(s) of intent addressing both the compliance agreement amendments and the initial comprehensive plan subject to this proceeding. The Department shall file the cumulative notice(s) of intent with DOAH along with a request to dismiss this proceeding. 4 13. Filing and Continuance. This agreement shall be filed with DOAH by the Department after execution by the parties. Upon the filing of this agreement, the administrative proceeding in this case shall be stayed by the hearing officer in accordance with Section 163.3184(16), Florida Statutes. 14. Retention of Right to Final Hearing. Both parties hereby retain the right to have a final hearing in this proceeding in the event of a breach of this agreement, and nothing in this agreement shall be deemed a waiver of such right. The Department or the Village may move to have this matter set for hearing if it becomes apparent that any other party whose action is required by this agreement is not proceeding in good faith to take that action. 15. Description of Provisions not in Compliance and Remedial Actions; Legal Effect of Agreement. Exhibit A to this agreement is a copy of the statement of intent, which identifies the provisions of the plan which are not in compliance. Exhibit B contains remedial actions needed for compliance. This agreement constitutes a stipulation that if the remedial actions are accomplished, the Department shall issue a cumulative notice of intent to find the comprehensive plan and remedial amendments in compliance. However, this agreement shall not be construed to be a waiver of the Department's authority to make determinations under Section 163.3184(9)(b), Florida Statutes. 16. Remedial Actions to be Considered for Adoption. The Village agrees to consider for adoption by formal action of its governing body all remedial actions described in Exhibit B no later 5 than the time period provided for in this agreement. 17. Adoption or Approval of Remedial Plan Amendments. Within sixty (60) days after execution of this agreement by both parties, the Village shall consider for adoption all remedial plan amendments and amendments to the support document. This may be done at a single adoption hearing. Within ten (10) worki _lays after adoption of the remedial plan amendments, the Village shall transmit ten (10) copies of the remedial amendments to the Department as provided in Rule 9J-11.011, Florida Administrative Code. The Village also shall submit one (1) copy to the regional planning agency and to any other unit of local or state government that has filed a written request with the governing body for a copy of the remedial plan amendments, and a copy to any party granted intervenor status in this proceeding. The remedial amendments shall be transmitted to the Department along with a letter which describes the remedial action adopted for each part of the plan amended, including references to specific portions and pages. 18. Review of Remedial Amendments and Notice of Intent. Within forty-five (45) days after receipt of the adopted remedial plan amendments and support documents, the Department shall issue notice(s) of intent, pursuant to Section 163.3184, Florida Statutes, for the adopted remedial amendments in accordance with this agreement. a. In Compliance: If the adopted remedial actions satisfy this agreement, the Department shall issue cumulative notice(s) of intent addressing both the comprehensive plan and the 6 compliance agreement remedial amendments as being in compliance. The Department shall file the cumulative notice(s) with DOAH and shall move to have the proceeding dismissed. b. Not in Compliance: If the remedial actions are not adopted, or if they do not satisfy this agreement, the Department shall issue notice(s) of intent to find the remedial plan amendments not in compliance and shall forward the notice(s) to DOAH for a hearing as provided in Section 163.3184(10), Florida Statutes, and may request that the matter be consolidated with the pending proceeding for a single final hearing. The parties hereby stipulate to that consolidation and to the setting of a single, final hearing if the Department so requests. 19. Effect of Amendments. Adoption of any compliance agreement remedial amendments shall not be counted toward the frequency restrictions imposed upon plan amendments pursuant to Section 163.3187(1), Florida Statutes. 20. Agreement Regarding Further Amendments. The local government agrees not to transmit or adopt any additional amendments to its plan until the remedial amendments described in this agreement have been adopted and a notice of intent to find them in compliance has been issued by the Department. In witness whereof, the parties hereto have caused this agreement to be executed by their undersigned officials as duly authorized. 7 DEPARTMENT OF COMMUNITY AFFAIRS VILLAGE OF KEY BISCAYNE _., rte._ Charles Pattison, Director Division of Resource Planning and Management Date John F. Festa, Mayor July 11, 1995 Date Attest: Village C'erk Assistant General Counsel Villag ttor 8 STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS IN RE: VILLAGE OF KEY BISCAYNE) COMPREHENSIVE PLAN ) ADOPTED BY ) ORDINANCE NO. 94-6 ) ON AUGUST 16, 1994 STATEMENT OF INTENT TO FIND COMPREHENSIVE PLAN NOT IN COMPLIANCE The Florida Department of Community Affairs hereby issues its Statement of Intent to find the Comprehensive Plan of the Village of Key Biscayne, adopted by Ordinance No. 94-6 on August 16, 1994, Not In Compliance based upon the Objections, Recommendations and Comments Report (ORC Report) issued by the Department on April 7, .994, which is hereby incorporated by reference, and changes made to the plan, as adopted, which were not previously reviewed by the Department. The Department finds that the plan is not "in compliance", as defined in Section 163.3184(1) (b) , Florida Statutes (F . S .) , because it is not consistent with Sections 163.3.77 and 163,3178, F. S . , the State Comprehensive Plan, the Regional Plan for South Florida, and Chapter 95-5, Florida Administrative Code following reasons: Village of Key Biscayne SO; rF .A.C.), for the STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS IN RE: VILLAGE OF KEY BISCAYNE) COMPREHENSIVE PLAN ADOPTED BY ORDINANCE NO. 94-6 ON AUGUST 16, 1994 STATEMENT OF INTENT TO FIND COMPREHENSIVE PLAN NOT IN COMPLIANCE The Florida Department of Community Affairs hereby issues its Statement of Intent to find the Comprehensive Plan of the Village of Key Biscayne, adopted by Ordinance No. 94-6 on August 16, 1994, Not In Compliance based upon the Objections, Recommendations and Comments Report (ORC Report) issued by the Department on April 7, 1994, which is hereby incorporated by reference, and changes made to the plan, as adopted, which were not previously reviewed by the Department. The Department finds that the plan is not "in compliance", as defined in Section 163.3184(1)(b), Florida Statutes (F.S.), because it is not consistent with Sections 163.3177 and 163,3178, F.S., the State Comprehensive Plan, the Regional Plan for South Florida, and Chapter 9J-5, Florida Administrative Code (F.A.C.), for the following reasons: Village of Key Biscayne SOI 1 EXHIBIT 3 I. FUTURE LAND USE ELEMENT A. Inconsistent Provisions. The inconsistent provisions of the Plan are as follows: 1. The methodology for estimating a projected population in the plan is straightforward; there is limited vacant land for development in the Village and the Future Land Use Map (FLUM) densities for these areas are known. However, statements and assumptions are made in the discussion of the population projection that are not clear. It cannot be determined if the population projection is based upon buildout at the FLUM designations or some other assumptions. It appears that there are inconsistencies in the seasonal population projections as noted by Metro -Dade County. [Rule 9J -5.005(2)(e), and 9J - 5.006(3)(b)9, F.A.C.] 2. Policies 1.1.3 and 1.2.1 defer to the land development regulations (LDR's) and do not provide adequate guidance for the LDR's. These policies also defer to the statutes and administrative code, and to regulatory agencies for the governing of signs, subdivisions, and floodplain protection. The language also allows for a self -amending plan. [Rule 9J -5.006(3)(b)2 and 3, and 9J -5.006(3)(c)1, F.A.C., Section 163.3177 and 3178, F.S.] 3. Objective 2.1 and Policy 2.1.1 defer the extension of central sewer to those areas currently served by septic tanks until 10 years beyond the end of the planning horizon. Policy 2.1.3 defers to the land development code and does not provide Village of Key Biscayne SOI 2 standards for drainage, erosion control, pervious surfaces, and traffic flow and parking. Objective 2.2 is not specific as to when stormwater outfalls into Biscayne Bay will be eliminated. Policy 2.2.2 relating to stormwater management, dune protection, and other environmentally sensitive land protection measures defers to statute, administrative code, and other regulatory agencies which does not provide guidance for the LDR's and also creates a self -amending plan. Objective 2.3 no longer provides for the elimination of direct stormwater outfalls to Biscayne Bay, but rather the "mitigation to the maximum extent feasible" of these outfalls by December 31, 1998. The proposed language sets a date certain, but the action that is to be completed by this date is now in question. Policy 2.3.1 has been modified to remove the reference to eliminating stormwater outfalls and sets that date for activation of a stormwater utility as no later than December 31, 1998 which is inconsistent with Objective 2.2. Policy 2.3.2 does not provide specific guidance to the LDR's. [Rule 9J -5.006(3)(b)4 and (3) (c) 4 and 6, F.A.C., Section 163.3177 and 3187, F.S.] 4. Objective 2.5 is not measurable or specific. Policy 2.5.1 defers requirements for the provision of "sewer and stormwater lift stations, collection/infiltration mechanisms, and other utility land requirements" to the LDR's. [Rule 9J - 5.006(3)(b)9, F.A.C. ] Village of Key Biscayne SOI 3 5. Policy 1.1.1 makes the provision that reconstruction after a natural disaster or other casualty cannot exceed the original density or intensity of the pre -disaster use. However, this provision is now inconsistent with Policy 1.2.1 that requires redevelopment to be consistent with the provisions of Policy 1.1.1 (which includes the land use category descriptions) and the FLUM, and inconsistent with the provisions of Conservation and Coastal Management Element Policy 3.3.1 that requires structures that are damaged by more than 50% of their value to rebuild according to current development regulations. It is not clear from the policies as to whether a non -conforming use in a given land use category would be allowed to rebuild to its pre -casualty use, or whether it would be required to rebuild in a manner consistent with the FLUM and Future Land Use Element (FLUE) . [Rule 9J -5.005(5)(a), and 9J -5.006.(3)(c)1 and 7, F.A.C.] B. Recommended Remedial Actions. These inconsistencies may be remedied by taking the following actions: 1. Clearly state the assumptions made in preparing the permanent and seasonal population projections and the basis of the projections. 2. Establish policies which provide clear guidance for the regulation of the subdivision of land, floodplain protection, signage. and Village of Key Biscayne SOI 4 3. Stormwater outfalls to Biscayne Bay and their associated drainage systems, and the complete provision of central sewer are two of the Village's more pressing infrastructure concerns from the standpoint of natural resource protection and public welfare. The Village should design very clear policies and set the most expedient timetable possible to address these issues. 4. Specify when and under what conditions utility infrastructure will be required and how adequate land area for this use will be provided. 5. Resolve the internal inconsistency concerning post - disaster redevelopment by clearly stating what the rebuilding and redevelopment policy of the Village will be. It is suggested that the Future Land Use Map be the guiding document for redevelopment and rebuilding. II. TRAFFIC CIRCULATION ELEMENT A. Inconsistent Provisions. The inconsistent provisions of the Plan are as follows: 1. The service volume standards used in the Village support document are not consistent with the volumes given in FDOT's 1992 Level of Service Standards and Guidelines Manual. The Village Plan includes a disclaimer that the service volumes used in the support document analysis are for design capacity information and do not reflect FDOT or Dade County maximum service volumes. The data and analysis is inconsistent as to the Village of Key Biscevne SOI 5 build -out Level of Service (LOS) for Crandon Boulevard. The statement is made that the roadway will operate at LOS E at buildout while the data suggests that the roadway will be at LOS F. The methodology and assumptions used to arrive at the projected build -out levels of service are not clearly stated. [Rule 9J-5.005(5) (a) and 9J-5.007(1) and (2) , F.A.C. ] 2. Policy 1.1.1 establishes LOS standards that the data and analysis suggest cannot be met and accommodate the committed development within the Village. Objective 1.4 and Policies 1.1.2, 1.4.1 and 1.4.2 defer to the LDR's. The policies do not provide specific standards so as to guide the LDR's. Policy 1.1.1 states that Crandon Boulevard, the only arterial in the Village, will operate at LOS E or better, "although the LOS could potentially fall slightly below E near the north Village limits." It would appear that the Village is making the provision for LOS of F on an arterial roadway segment. The Village is adopting a LOS for their collector roadways of B. The data supplied with the adopted plan indicates that these roadways are at LOS D now. Policy 1.1.3 was added to specify how the Village will address meeting the adopted LOS in Policy 1.1.1. It is not clear how these proposals will address meeting the adopted LOS in view cf the current operating conditions for these roadways. Policy 1.1.2 is not specific and states that State highway access management standards will be considered in developing access controls, but provides no guidance to develop an access Village of Key Biscayne SOI 6 management program. Policy 1.4.2, concerning access management on Crandon Boulevard, has been amended to reflect Objective 1.4 to reduce the lineal footage of curb cuts on Crandon Boulevard. The Policy does not state how this objective will be achieved and defers to the LDR's. [Rule 9J -5.005(5)(a) and 9J -5.007(3)(b) and (c) , F .A.C. ] B. Recommended Remedial Actions. These inconsistencies may be remedied by taking the following actions: 1. The Village could resolve the inconsistencies noted concerning roadway service volumes by using the FDOT 1992 Level of Service Standards and Guidelines Manual in the roadway analysis. Determine the buildout LOS for Crandon Boulevard so that there is no ambiguity as to what the projected LOS will be. 2. Revise the policies to provide clear guidance to the LDR's to address methods of meeting LOS standards. Determine the projected LOS for Crandon Boulevard at buildout and identify mitigation efforts, if necessary, to be undertaken to address any projected LOS deficiencies. Revise Policy 1.1.2 to provide specific guidance to an access management program. III. HOUSING ELEMENT A. Inconsistent Provisions. None. Village of Key Biscayne SOI 7 IV. INFRASTRUCTURE ELEMENT: SANITARY SEWER, SOLID WASTE, DRAINAGE, POTABLE WATER, AND NATURAL GROUNDWATER AQUIFER RECHARGE A. Inconsistent Provisions. The inconsistent provisions of the Plan are as follows: 1. Objective 1.1 as adopted removes reference to the elimination of direct stormwater outfalls to Biscayne Bay and shifts the focus to "technically and economically feasible" mitigation of these outfalls by December 31, 1998 and to require onsite stormwater detention. While a date certain has now been established for an action, that action is not specific. Policy 1.1.3 defers to the LDR's for stormwater management requirements. Specific criteria for the extent of on -site detention required, impervious surface area ratios, conveyance structure type and maintenance, and drainage LOS have been deferred to the LDR's. Objective 1.2 has been amended to provide for the extension of central sewer by 2014, ten years beyond the end of the planning period. Policy 1.2.1 has been amended to require completion of a plan to provide sewer service to unsewered areas of the Village by 2014 as opposed to 2004 and to begin implementation no later than 2014. The support document indicates that approximately 25% of the Village area is served by septic tanks and that from time to time there is evidence of septic tank effluent percolating to the ground surface. The support document also indicates that drainage is an acute problem in the Village and most if not all of the stormwater flows directly to Biscayne Village of Key Biscayne SO3 8 Bay, or into drainage wells with little or no pre-treatment. It can therefore be assumed that septic tank effluent is being carried by stormwater to Biscayne Bay and into these drainage wells. The Village has initiated, as indicated in the support document to the Master Plan, a master drainage plan to address drainage problems. The Village has not fully addressed the resource concerns due to stormwater runoff raised by the Department and made adequate provision for the removal of existing septic tanks. [Rule 9J -5.011(2)(b)1 and (2) (c) 1, F.A. C. ] 2. Policies 1.4.1 and 1.4.3 have been revised to set LOS standards for sewer and potable water of 140 gallons per capita per day (gpcpd) and 280 gpcpd respectively. These LOS standards are inconsistent with Intergovernmental Coordination Element Policy 1.3.1 which ties the Village LOS to Dade County's LOS for these services. The Dade County LOS for sewer is 100 gpcpd and water is 200 gpcpd. The plan is internally inconsistent. Policy 1.4.4 states that development and redevelopment shall adequately accommodate runoff to meet all federal, state and local requirements. The policy does not set a specific LOS standard for drainage.[Rule 9J-5.005((3) and 5)(a), 9J-5.003(65), and 9J -5.011(2)(c)2 and 5, F . A. C ] 3. Policy 1.5.1 requires the LDR's to provide for irrigation requirements to conserve water, water conservation plant species requirements for landscaping derived from SFWMD lists, mandatory use of ultra -low volume water saving devices in all new construction and rehabilitation, lawn watering Vittage of Key Biscayne SW 9 restrictions, and other water conservation measures as feasible. However, the policy does not provide specific guidance to the LDR's as to the standards and criteria that will be required. Policy 1.5.2 was amended to provide for educational programs to promote water conservation; Policy 1.7.13 provides for an emergency water conservation plan. The policies do not address the requirements of Policy 8.1.7 of the Regional Plan for South Florida. [Rule 9J -5.011(2)(b)4 and 9J -5.011(2)(c)3, F.A.C. , Regional Plan for South Florida Policy 8.1.7] 4. Policy 1.5.1 lacks specificity as to how the Village will carry out the proposed water conservation measures, and the adopted policy defers to statutes and administrative code to address recycling efforts. [Rule 9J -5.011(2)(b)4, 9J - 5.013(2)(b)2, F . A . C ; and Chapter 187.201(13)(a) and (b) 1 and 9, F.S., Regional Plan for South Florida Policy 18.1.2] B. Recommended Remedial Actions. These inconsistencies may be remedied by taking the following actions: 1. Revise the policies under this objective to provide sufficient detail to guide the LDR requirements for stormwater management. A more definite target date and shorter time frame for completion of the financial and engineering plan and conversion of septic tanks to central sewer should be included in the Village Plan. Also see recommendations for Future Land Use Element Objective 2.1. Village of Key Biscayne SOI 10 2. Resolve the internal inconsistency within the Plan for the LOS standards for central sewer and potable water. Establish a specific drainage level of service for both water quality and quantity. Clearly state the LOS for drainage will be in accordance with the provisions of Chapter 17-25, F.A.C. in order to meet receiving water body quality standards in Chapter 17- 302.500 F.A.C., and that post development runoff shall not exceed pre -development runoff rates. 3. Revise the above policies to be specific. Include policies to address other methods of water conservation. Develop a method to monitor and measure water consumption within the Village. 4. Establish policies which provide clear guidance for conservation efforts such as resource recovery, recycling, cogeneration, water reuse systems, and other measures to lessen the impact of development upon public facilities and resources. The RPC suggests that at a minimum the Village use the conservation standards required of the island while under the jurisdiction of Dade County. V. CONSERVATION AND COASTAL MANAGEMENT ELEMENT A. Inconsistent Provisions. The inconsistent provisions of the Plan are as follows: 1. Policies 2.2.1 and 2.2.2 do not identify regulatory or management techniques to limit the specific and cumulative Village of Key Biscayne SOI 11 impacts of development or redevelopment upon wetlands, water quality, water quantity, wildlife habitat, living marine resources, and beach and dune systems. These policies do not identify the regulatory or management techniques for the restoration or enhancement of disturbed or degraded natural resources including beaches and dunes, estuaries, wetlands, and drainage systems. Objective 2.2 and Policies 2.2.1, 2.2.2, and 2.2.3 regulate building seaward of the coastal construction control line and require dune restoration for any new development. The Village did not specifically address redevelopment. Conceivably, redevelopment could occur in the Village and not met the requirements for natural resource conservation or enhancement. [Rule 9J -5.012(3)(c)1 and 2, F .A. C. ] 2. A policy identifying regulatory or management techniques for general hazard mitigation (including regulation of building practices, floodplains, beach and dune alteration, stormwater management, sanitary sewer and septic tanks, and land use) to reduce the exposure of human life and property to natural hazards is not included. The Village modified Policy 1.5.1 to require the Village manager to ensure enforcement of FEMA regulations, but no specific policy to address the above listed requirements was adopted. Policy 2.2.2 has been amended to require dune restoration of new development to the extent "economically and technically feasible." There is no requirement for redevelopment Village of Key Biscayne SQI 12 to restore dune areas. The policy is not specific as to the level of restoration that will be required. Objective 3.1 has been amended to limit as opposed to prohibit the expenditure of Village funds on infrastructure that would subsidize development that is more intense than that authorized by the Plan. Policy 3.1.1 and Policy 3.5.6 state that the Village will not fund any public infrastructure that directly subsidizes specific private development. The objective and policies are internally inconsistent. Policy 3.5.1 has been amended to require building setbacks from the ocean that are "the maximum consistent with reasonable use of private property." The policy does not set a specific setback distance. Policy 3.5.1 appears to be inconsistent with other policies requiring building landward of the coastal construction control line. [Rule 9J -5.005(5)(a), and 9J -5.012(3)(c)2 and 3 F.A.C.] 3. Policy 3.3.1 sets a threshold of damage exceeding 50% of a structure's value as the point at which redevelopment shall be required to comply with all current regulations. As noted previously, this provision renders the Plan internally inconsistent. Objective 3.3 sets a 1996 date for adoption of a post - disaster redevelopment plan. Policy 3.3.1 sets the date at 1999. The objective and policy are not consistent. New Policies 3.3.2 and 3.3.3 do not provide guidelines or standards for the post - disaster redevelopment plan. [Rule 9J -5.005(5)(a), and 9J- Vitiage of Key Biscayne SOI 13 5.012(3)(c)5, F.A.C.] 4. Policy 3.3.4 does not identify regulatory or management techniques for identifying areas needing redevelopment and defers to the as yet unadopted post -disaster redevelopment plan. [Rule 9J -5.012(3)(c)6, F.A.C.] 5. Policy 2.1.2 includes specific criteria and requirements for new marina, marina expansion, or similar water - dependent uses. The expanded policy makes reference to Metro - Dade Shoreline Development Review Procedures, but does not adopt these procedures or say what the procedures are. The policy contains the provision to be self -amending as Dade amend its Shoreline Development Review procedures. 9J -5.012(3)(c)9, F.A.C., Section 163.3184, F.S.] 6. Policy 2.5.1 provides for the protection County may [Rule of Biscayne Bay by implementing a master drainage plan, replacing septic tanks with central sewer, mandating onsite stormwater detention, and marina siting standards. The policy do not specify when these activities will occur. Policy 2.5.2 provides for Village coordination in the review of bayfront projects by the Biscayne Bay Shoreline Development Review Committee. It is not clear how this action will contribute to the improvement and protection of Biscayne Bay. As noted in the Infrastructure Element review, the Village proposal for the management of stormwater and provision of central sewer is inadequate. :Rule 9J -5.012(3)(c)14, F.A.C.] Village of Key Biscayne SO! 14 7. Policy 2.5.2 concerns the coordination of a Village representative with the Biscayne Bay Shoreline Development Review Committee. The policy makes no mention of coordinating with other agencies that have regulatory authority and management responsibility for Biscayne Bay such as the Florida Department of Environmental Protection (FDEP) and the National Park Service or their management plans for Biscayne Bay. The membership of the Review Committee is not specified in the Plan. [Rule 9J -5.012(3)(c)15, F.A.C. ] 8. Policy 1.2.2 does not provide adequate guidance to the LDR's for the correction of drainage and stormwater management problems in the Village. Policy 1.4.2 was amended to provide for the location and screening of beachfront lights "in a way that is practical to water dependent and water related uses" to assist in protecting sea turtles. The policy is not specific as to what the locational and screening criteria are or what the desired result may be. Policy 2.2.2 was amended to provide for dune restoration of the highest level that is "technically and economically feasible" in conjunction with new development. The policy does not specify what this restoration will entail or that redevelopment will also be required to restore dunes. Objective 2.5 is not measurable or specific. Objective 3.5 does not provide measurability. The objective to "minimize damage from any hurricane storm surge" is not measurable in Vittage of Key Biscayne SOI 15 itself. Policy 3.5.1 and new Policy 3.5.3 do not provide specific standards for setbacks and limiting fill so as to avoid storm surge damage. Policy 3.6.1 does not provide guidance to the LDR's to achieve the objective of commercial redevelopment. [Rule 9J -5.013(2)(c), F.A.C. ] • Policy 3.5.3 concerns limiting the filling of areas, but lacks specificity. Policy 1.7.1 concerns beach renourishment and minimizing natural resource damage caused by the renourishment = The policy lacks specificity to adequately guide the LDR's. Policy 1.7.2 concerns locating borrow areas for beach renourishment. The policy contains a syntax error and cannot be evaluated. Policy 1.7.3 concerns discouraging the encroachment upon the beach front and dunes by development. However, the policy does not say how encroachment will be discouraged. As noted previously, no specific setbacks have been set other than not allowing buildings seaward of the coastal construction control line. The issue of resource protection has not been fully addressed. Policy 1.7.4 contains a syntax error and cannot be evaluated. The policy concerns the effects that dredge and fill would have upon benthic communities. Policy 1.7.6, intended to protect listed species and all birds within the Village, lacks specificity. [Rule 9J-5.013 (2) (c) , F.A.C. ] Village of Key Biscayne SOI 16 10. The Village has not adopted a policy to designate environmentally sensitive lands for protection (based on locally determined criteria) or explained why such a policy would be unnecessary. [Rule 9J -5.013(2)(c)9, F.A.C.] 11. Objective 1.3 Vegetative and Soil Resources and Policy 1.3.1, have been amended to remove reference to keeping non- seawalled waterfront as natural as possible for habitat purposes. Language was added to the policy to require Dade County Department of Environmental and Resource Management permits for construction seaward of mean high water line. The new language is inconsistent with 9J-5 requirements for the protection of natural resources, particularly habitat for listed species. It is not clear how this language is consistent with other policies in the plan limiting construction seaward of the coastal construction control line. [Rule 9J -5.013(2)(c), F.A.C.] B. Recommended Remedial Actions. These inconsistencies may be remedied by taking the following actions: 1. Specify that the regulatory or management techniques for the restoration of natural resources and programs for the mitigation of future disruptions or degradations will apply to all development and redevelopment. 2. Revise Policy 3.5.1 to require specific building setbacks from the ocean and Bay to address hazard mitigation and resource protection. Resolve the inconsistency between Objective 3.1 and Policies 3.1.3 and 3.5.6. Village of Key Biscayne SOI 17 3. Resolve the inconsistency between Objective 3.3 and Policy 3.3.1. See recommendation for FLUE Policy 1.1.1. 4. Include a policy, based on relevant,data and analysis, that specifies regulatory or management techniques for redevelopment. 5. Revise Policy 2.1.2 to incorporate by reference and include as an attachment Policy 4D of the Metro -Dade Comprehensive Development Master Plan (CDMP) Coastal Management Element, and include guidelines to be utilized by the Village upon future amendments to Dade County Policy 4D. 6. Revise Policies 2.5.1 and 2.5.2 to include specific dates for the implementation of the master drainage plan, replacing septic tanks with central sewer, and mandating of onsite stormwater detention. 7. Revise Objective 2.5 and Policy 2.5.2 to include other agencies that have regulatory authority and management responsibility for Biscayne Bay such as the Florida Department of Environmental Protection and the National -Park Service. 8. Revise the above objectives and policies to include specific and measurable actions to be taken by the Village to address stormwater management. 9. Revise the above objectives and policies to include specific and measurable actions to be taken by the Village. Correct the syntax errors in Policies 1.7.2 and. 1.7.4. Village of Key Biscayne SOI 18 10. Revise the Element to include a policy, based on relevant data and analysis, designating environmentally sensitive lands. 11. Revise the objective and policy to provide for the protection of habitat for listed species and natural resources. Clarify the relationship of this policy to other policies in the Plan concerning coastal construction. VI. RECREATION AND OPEN SPACE ELEMENT A. Inconsistent Provisions. The inconsistent provisions of the Plan are as follows: 1. Policies 1.4.1 and 1.4.2 are not specific as to how much public open space is to be required. The Village amended Policies 1.4.1 and 1.4.2 to state that required open space "shall be consistent with the high property values of the island and the need to ensure reasonably satisfactory levels of access to light and air." The policies do not set any specific standards for open space requirements. [Rule 9J -5.014(3)(c)4) B. Recommended Remedial Actions. These inconsistencies may be remedied by taking the following actions: 1. Revise Policies 1.4.1 and 1.4.2 to establish specific guidance for the provision of required open space. Village of Key Biscayne SOI 19 VII. INTERGOVERNMENTAL COORDINATION ELEMENT A. Inconsistent Provisions. The inconsistent provisions of the Plan are as follows: 1. The Plan makes reference to the potential use of areas within the boundaries of Bill Baggs Cape Florida State Park to provide active recreation sites for the Village. Such a provision is inconsistent with the established management plan for this State Park. The Florida Department of Environmental Protection (FDEP) has stated that the unit management plan only authorizes passive recreational use of the State Park which must be consistent with management plans and efforts required to protect the natural and cultural resources found within the Park. The Park management plan does not identify any lands as surplus to the needs of the Park. Policy 1.2.1 contains language that indicates that the intended use of Bill 3aggs/Cape Florida State Park and Dade County Crandon Park is inconsistent with the master plans for these parks. [Rule 9J -5.015(3)(b)2 and 3, F . A. C. ] 2. Objective 1.3 ties the Village LOS standards to those of Dade County. Policy 1.3.1 states the Village will use the same LOS standards as Dade County for solid waste, sewage, and water. The stated Village LOS for sewer is 140 gpcpd, water is 280 gpcpd, and solid waste is 5.2 pounds per person per day. Dade County's LOS for sewer is 100 gpcpd, water is 200 gpcpd, Village of Key Biscayne BOI 20 solid waste is 7 pounds per person per day. Objective 1.3 and Policy 1.3.1 are inconsistent with other policies in the adopted Plan. (Rule 9J -5.015(3)(b)2 and 3 and 9J -5.005(5)(a), F.A.C.] 3. Policy 1.2.4 indicates that the Village will contribute to the improvement of water quality in Biscayne Bay by implementing a master drainage plan, replacing septic tanks with central sewer, mandating on -site detention of stormwater, and implementing marina siting standards. There are concerns as previously noted with the implementation of the activities associated with stormwater management and the provision of central sewer facilities. Policy 1.2.5 concerns the coordination of the review of bayfront development projects with the Biscayne Bay Shoreline Development Review Committee. The policy makes no mention of coordinating with other agencies that have regulatory authority and management responsibility for Biscayne Bay such as FDEP and the National Park Service. The membership of the Review Committee is not specified in the Plan. [Rule 9J -5.015(3)(c)6, F.A.C.] B. Recommended Remedial Actions. These inconsistencies may be remedied by taking the following actions: 1.- Resolve the inconsistencies over the recreational use of Bill Baggs Cape Florida State Park and Dade County Crandon Park and the conflict between the management plans for these areas and the potential uses suggested by the Village. Village of Key Biscayne SOI 21 2. Resolve the inconsistencies in the adopted LOS standards. If it is the Village's intention to adopt LOS standards for solid waste, sewage, and potable water that differ from those of Dade County, then the Village should amend the LOS standards adopted in the Infrastructure Element in Policies 1.4.1 through 1.4.5. 3. Revise Policy 1.2.5 to include all agencies that have regulatory authority and management responsibility for the Biscayne Bay, such as FDEP and the National Park Service. VIII. CAPITAL IMPROVEMENT ELEMENT A. Inconsistent Provisions. The inconsistent provisions of the Plan are as follows: 1. Policy 1.5.3 requires development and redevelopment to pay a proportional share of the cost of expanded public facilities for which the development or redevelopment creates the need. However, the policy does not say what that share may be or how a share will be determined. [Rule 9J -5.016(3)(b)4 and (c)8, F.A.C.] B. Recommended Remedial Actions. These inconsistencies may be remedied by taking the following actions: 1. Revise Policy 1.5.3 to include the specific proportionate share of facility improvement costs to be born by new development and redevelopment. Village of Key Biscayne SOI 22 IX. CONSISTENCY WITH THE STATE COMPREHENSIVE PLAN A. Inconsistent Provisions. The inconsistent provisions of the comprehensive plan under the subject heading are as follows: 1. The plan is not consistent with, and fails to further the State Comprehensive Plan including the following provisions [Rules 9J-5.021 and 9J-11.006(3), F.A.C.]: (8) Water Resources, Goal (a), Policies (b) 5., 6., 8., 9., 10., and 11., which refer to the protection of surface and ground water quality and quantity; aquifer recharge quality; protection of water courses; and environmentally sensitive floodplain resources. (9) Coastal and Marine Resources, Goal (a), Policies (b) 2., 4., 6., and 7., which refer to the provision of public access to beaches, and the protection of aquatic habitat. (10) Natural Systems and Recreational Lands, Goal (a), Policies (b) 1., 2., 3., 4., 7., and 10., which refer to the conservation of natural habitats and wetland systems; potential destruction of endangered species; protection of the ecological function of wetlands systems; and the maintenance of ecologically intact systems. (16) Land Use, Goal (a), Policies (b) 2. 3., 4., 6., and 7., which refer to the efficiency of development; and review of specific impacts to natural resources. Vittage of Key Biscayne SOI 23 (18) Public Facilities, Goal (a), Policies (b)1., 4., 5., 6., and 10., which refer to provision of adequate public facilities. (20) Transportation, Goal (a), Policies (b) 3., 9., and 13., which refer to efficiency of transportation systems. B. Recommended Remedial Actions. These inconsistencies may be remedied by taking the following actions: 1. Revise the plan to be consistent with and further the State Comprehensive Plan, including the above -referenced goals and policies. Specific recommendations can be found in above Sections I through VIII. Village of Key Biscayne SOI 24 X. CONSISTENCY WITH THE COMPREHENSIVE REGIONAL POLICY PLAN A. Inconsistent Provisions. The inconsistent provisions of the plan under the subject heading are as follows: 1. The plan is not consistent with and does not further the Regional Plan for South Florida, including the following goals and policies [Rules 9J-5.021 and 9J-11.006(3), F.A.C.]: (8) Water Resources, Goals 8.1 and 8.4, Policies 8.1.7, 8.1.8, 8.1.11, 8.1.14, 8.1.22, 8.1.24, 8.1.29, 8.2.1, 8.2.2, 8.4.2, 8.4.3, 8.4.4, 8.4.6, and 8.4.16, which refer to the protection of surface and ground water supplies, wetland and floodplain resources, and basin management. (10) Natural Systems and Recreational Lands, Goals 10.1, 10.3, and 10.5, Policies 10.1.7, 10.1.8, 10.1.11, 10.3.1, 10.3.4, 10.3.5, 10.5.6, 10.5.7, and 10.5.8, which refer to protection of endangered species; providing for the protection of the natural function of wildlife habitat and wetlands. (16) Land Use, Goals 16.3 and 16.4, Policies 16.3.1, 16.3.2, 16.3.4, 16.3.6, 16,3.7, 16.3.8, 16.3.9, 16.4.1, 16.4.2, which refer to land use compatibility; and the protection of natural resources. (18) Public Facilities, Goal 18.1, Policies 18.1.2, which refer to reducing the impacts of new development on existing public facilities and services. (20) Transportation, Goal 20.2, Policies 20.2.1 and 20.2.3 which refer to efficiency of transportation systems. f Village of Key Biscayne SOI 25 B. Recommended Remedial Actions. These inconsistencies may be remedied by taking the following actions: 1. Revise the plan to be consistent with and further the Regional Plan for South Florida, including the above referenced goals and policies. Specific recommendations can be found above in Sections I through VIII. Village of Key Biscayne SOI 26 CONCLUSIONS 1. The plan is not consistent with the Regional Plan for South Florida. 2. The plan is not consistent with the State Comprehensive Plan. 3. The plan is not consistent with Chapter 9J-5, F.A.C. 4. The plan is not consistent with the requirements of Sections 163.3177, and 163.3178, F.S. 5. The plan is not "In Compliance," as defined in Section 163.3184(1) (b) , F.S. 6. In order to bring the plan into compliance, the Village may complete the recommended remedial actions described above or adopt other remedial actions that eliminate the inconsistencies. Executed this - day of October, 1994, at Tallahassee, Florida. Charles G. Pattison, Director Division of Resource Planning and Management 2740 Centerview Drive Tallahassee, Florida 32399 Village of Key Biscayne S31