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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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
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(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
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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