(a)

Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Allocation period means a defined period of time within which applications for the residential ROGO allocation will be accepted and processed.

Annual allocation period means the 12-month period beginning on July 13, 1992, (the effective date of the original dwelling unit allocation ordinance), and subsequent one-year periods.

Annual residential ROGO allocation means the maximum number of dwelling units for which building permits may be issued during an annual allocation period.

Buildable lot or parcel, for the purposes of this chapter, means a lot or parcel which must contain a minimum of 2,000 square feet of upland, including any disturbed wetlands that can be filled.

Controlling date means the date and time a ROGO application is submitted. This date shall be used to determine the annual anniversary date for receipt of a perseverance point and shall determine precedence when ROGO applications receive identical ranking scores. A new controlling date shall be established based upon the resubmittal date and time of any withdrawn or revised application, except pursuant to Section 138-25(h).

Lawfully established for ROGO/NROGO exemption means a dwelling unit or nonresidential floor area that has received a permit or other official approval from the division of growth management for the unit and/or nonresidential floor area.

Quarterly allocation period means the three-month period beginning on July 13, 1992, or such other date as the board may specify, and successive three-month periods.

Quarterly residential ROGO allocation means the maximum number of residential dwelling units for which building permits may be issued in a quarterly allocation period.

Residential dwelling unit (dwelling unit) means a dwelling unit as defined in Section 101-1, and expressly includes the following other terms also specifically defined in Section 101-1: rooms, hotel or motel; campground spaces; mobile homes; transient units; and institutional residential units (except hospital rooms).

Residential ROGO allocation means the maximum number of dwelling units for which building permits may be issued in a given time period.

Residential ROGO allocation award means the approval of a residential ROGO application for the issuance of a building permit.

ROGO application means the residential ROGO application submitted by applicants seeking allocation awards.

(b)

Purpose and intent. The purposes and intent of residential ROGO are:

(1)

To facilitate implementation of goals, objectives and policies set forth in the comprehensive plan relating to protection of residents, visitors and property in the county from natural disasters, specifically including hurricanes;

(2)

To limit the annual amount and rate of residential development commensurate with the county's ability to maintain a reasonable and safe hurricane evacuation clearance time;

(3)

To regulate the rate and location of growth in order to further deter deterioration of public facility service levels, environmental degradation and potential land use conflicts;

(4)

To allocate the limited number of dwelling units available annually hereunder, based upon the goals, objectives and policies set forth in the comprehensive plan; and

(5)

To implement goal 105 of the comprehensive plan.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Residential ROGO allocation award required. No building permit shall be issued for a new dwelling unless the dwelling unit has received a residential dwelling unit allocation award, or is determined to be exempt as provided below.

(b)

Yearly review and monitoring. As required by the Comprehensive Plan, as requested by the Planning Commission or the BOCC, or as otherwise necessary, the Planning Director shall consider the rate, amount, location, and ratio of market rate to affordable housing residential dwelling units available for development in the County. The Planning Director shall also monitor the effects of such development and determine the conformity of such development with the Comprehensive Plan and this Chapter. This review, in whole or in part, may form the basis for recommendations by the Planning Director or the Planning Commission to the BOCC for action to repeal, amend or modify the ROGO allocation system.

(c)

Applicability. The ROGO allocation system shall apply within the unincorporated area of the county outside of the county mainland, and such area, for purposes hereof, has been divided into subareas as follows:

(1)

Upper Keys: the unincorporated area of the county north of Tavernier Creek and corporate limits of the Village of Islamorada (approximately mile marker 90).

(2)

Lower Keys: the unincorporated area of the county from the corporate limits of the Village of Islamorada (approximately mile marker 72) south to the corporate limits of the City of Key West at Cow Key Bridge on U.S. Highway 1 (approximately mile marker 4), excluding Big Pine Key and No Name Key.

(3)

Big Pine Key and No Name Key: the islands of Big Pine Key and No Name Key within unincorporated the county.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

The residential ROGO shall apply to all residential dwelling units, including institutional residential uses, such as nursing homes and rehabilitation centers, for which a building permit is required and for which building permits have not been issued prior to July 13, 1992, except as otherwise provided herein.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

The residential ROGO shall not apply to the development described below:

(a)

Redevelopment on-site. Redevelopment, rehabilitation or replacement of any lawfully established dwelling unit or space that does not increase the number of dwelling units above that which existed on the site prior to the redevelopment, rehabilitation or replacement shall be exempt from the residential ROGO system.

The Planning Director shall review available documents to determine if a body of evidence exists to support the lawful existence of units on or about July 13, 1992, the effective date of the original ROGO. Such evidence shall be documented and submitted to the Planning Director on a form provided by the Planning and Environmental Resources Department. Any issued Monroe County building permit(s) for the original construction of the structure confirming the existence of the dwelling unit and its use(s) on or about July 13, 1992 can stand as the only piece of evidence for a ROGO exemption.

If there are no building permit(s) for the original construction of the structure which confirm the lawful existence of the dwelling unit and its use(s) on or about July 13, 1992, the application shall include, at a minimum, at least two of the following documents:

(1)

Any other issued Monroe County building permit(s) supporting the existence of the structure(s) and its use(s) on or about July 13, 1992;

(2)

Documentation from the Monroe County Property Appraiser's Office indicating residential use on or about July 13, 1992;

(3)

Aerial photographs (to confirm the number of structures, not the number or type of dwelling units) and original dated photographs showing the structure(s) existed on or about July 13, 1992;

(4)

Residential county directory entries on or about July 13, 1992;

(5)

Rental, occupancy or lease records, on or about July 13, 1992, indicating the number, type and term of the rental or occupancy;

(6)

State and/or county licenses, on or about July 13, 1992, indicating the number and types of rental units;

(7)

Documentation from the utility providers indicating the type of service (commercial or residential) provided and the number of meters in existence on or about July 13, 1992; and

(8)

Similar supporting documentation not listed above as determined suitable by the Planning Director.

Any dwelling unit established after the effective date of the original ROGO should be documented through the ROGO permit allocation system and dwelling units that received such allocations that were constructed and received certificates of occupancies may be established as exempt from ROGO through verification of the certificate of occupancy alone.

Provision of affidavits to support the existence of a dwelling unit(s) is allowed, but cannot be the sole record upon which a decision is based.

Provision of documents is the responsibility of the applicant.

Dwelling units determined to be exempt from the ROGO per this subsection that have not been previously acknowledged by the Planning Director may also be nonconformities, pursuant to Chapter 102, Article III Nonconformities. Such occasions shall require a determination by the Planning Director as to the lawfulness of the nonconformity.

(b)

Transfer off-site. Residential dwelling units and transient units may be transferred to another site in the same ROGO subarea, provided that the units lawfully exist and can be accounted for in the County's hurricane evacuation model.

(1)

ROGO exemptions may be transferred as follows:

a.

between sites within the Upper Keys ROGO subarea;

b.

between sites within the Lower Keys ROGO subarea;

c.

between sites within the Big Pine Key and No Name Key ROGO subarea;

d.

from the Big Pine Key and No Name Key ROGO subarea to the Lower Keys ROGO subarea.

(2)

No sender units may be transferred to an area where there are inadequate facilities and services.

(3)

Transfer off-site shall consist of either the demolition of a dwelling unit on a sender site or a change of use of the floor area of dwelling unit on a sender site to another permitted use in the applicable land use (zoning) district that does not require the ROGO exemption and the development of a new dwelling unit, transient unit or affordable housing unit on a receiver site.

(4)

Transfer of Lawfully Established Unit Types:

a.

Transfer of a transient unit. A lawfully established hotel room, motel room, campground space, or recreational vehicle space may be transferred off-site to another hotel, motel, campground or recreational vehicle park.

b.

Transfer of an affordable housing unit. A lawfully established permanent market rate or affordable dwelling unit may be transferred to affordable housing. The receiver site shall be developed with an affordable housing unit pursuant to Sections 101-1 and 139-1.

c.

Transfer of a market rate unit. A lawfully established permanent market rate dwelling unit may be transferred to a receiver site and developed as a single family detached market rate dwelling unit, subject to the following:

1.

The transfer of market rate ROGO exemptions may be allowed provided that one of the following is satisfied:

i.

A 99 year deed-restricted affordable housing unit, pursuant to Sections 101-1 and 139-1, is retained or redeveloped on the sender site. If the existing dwelling unit is proposed as the deed-restricted affordable housing unit, the unit shall pass a life safety inspection conducted in a manner prescribed by the Monroe County Building Department, comply with hurricane standards established by the Florida Building Code, and habitability standards established under the Florida Landlord and Tenant Act; or

ii.

The sender site is dedicated to Monroe County for the development of affordable housing and an in-lieu fee per unit, based on the current maximum sales price for a one-bedroom affordable unit as established under Section 139-l(a), is paid to the affordable housing trust fund; or

iii.

A 99 year deed-restricted affordable housing unit, pursuant to Sections 101-1 and 139-1, is developed on a Tier III property (single-family residential lots or parcels) and the dwelling unit on the sender site is demolished and the sender site is restored.

2.

The receiver site for the market rate ROGO exemption must meet the criteria of subsection (6) and the following:

i.

Receiver site is a legally platted lot; and

ii.

Receiver site is within the Improved Subdivision (IS) Land Use District or the Urban Residential Mobile Home (URM) Land Use District; and

iii.

Receiver site is located within the same ROGO subarea as the sender site, except exemptions may be transferred from the Big Pine Key and No Name Key ROGO subarea to the Lower Keys ROGO subarea; and

iv.

Receiver site property is not a recreational and commercial working waterfront.

(5)

Sender Site Criteria:

a.

Contains a documented lawfully-established sender dwelling unit pursuant to subsection (a) and recognized by the County; and

b.

Located in a Tier I, II, III-A, or III designated area; including any tier within the County's Military Installation Area of Impact (MIAI) Overlay.

(6)

Receiver Site Criteria:

a.

The Future Land Use category and Land Use (Zoning) District must allow the requested use;

b.

Must meet the adopted density standards;

c.

Includes all infrastructure (potable water, adequate wastewater treatment and disposal wastewater meeting adopted LOS, paved roads, etc.);

d.

Located within a Tier III designated area; and

e.

Structures are not located in a velocity (V) zone or within a CBRS unit.

(c)

Procedures for transfer off-site.

(1)

A pre-application conference and, at a minimum, a minor conditional use permit approval shall be required for both the sender site and the receiver site. The minor conditional use for the transfer shall be reviewed pursuant to standards in this subsection (2) and not the standards provided in Section 110-67. As part of the minor conditional use permit approval process, mailing of notice shall be required to owners of real property located within 600 feet of the receiver site and owners of real property located within 600 feet of the sender site. The receiver shall be posted in accordance with Sections 110-5(h) and 110-69. Posting of notice, as required in Section 110-5(c) shall be required for the receiver site, but not the sender site.

(2)

A sender unit shall be assigned a unique identifier number that shall be used for tracking and monitoring by the Planning and Environmental Resources Department. Multiple units to be transferred from a sender site to a single receiver site may be authorized under a single minor conditional use permit approval. The unique identifier number shall be itemized in the minor conditional use permit development orders and building permits required for both the sender and receiver sites.

(d)

Conditions for issuance of permit. No building permit shall be issued for the new dwelling unit, transient unit or affordable housing unit on the receiver site until one of the following conditions is met:

(1)

The dwelling unit to be transferred is demolished as per an issued demolition permit and a final inspection of the demolished or removed dwelling unit or space has been completed and approved by all necessary county staff;

(2)

The structure in which the dwelling unit to be transferred is located is converted to another permitted use as per an issued building permit and a final certificate of occupancy for the conversion has been issued; or

(3)

Restoration of the sender site consistent with an approved restoration/re-vegetation plan.

(e)

Nonresidential use. Nonresidential uses are not affected by residential ROGO.

(f)

Development not increasing hurricane evacuation times. Any applicant that can demonstrate with a traffic study acceptable to county traffic engineers that the proposed development will not increase hurricane evacuation times. All dwelling units to be located in the Ocean Reef master planned community are deemed not to increase hurricane evacuation times.

(g)

Public/governmental uses. Public/governmental uses, including capital improvements and public buildings, as are defined in Section 101-1 shall be exempt from the residential ROGO system.

(h)

Other nonresidential development. Any other use, development, project, structure, building, fence, sign or activity, which does not result in a new dwelling unit shall be exempt from the residential ROGO system.

(i)

Vested rights. Landowners with a valid, unexpired development of regional impact approval granted by the county prior to July 13, 1992, shall be exempt from the residential ROGO system.

(j)

Temporary emergency housing. Temporary emergency housing shall be exempt from the residential ROGO system pursuant to Section 103-3.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016; Ord. No. 007-2020, § 1, 1-22-2020)

New transient residential units, such as hotel or motel rooms (and any lock-out units), seasonal residential units, or campground, recreational vehicle or travel trailer spaces, shall not be eligible for residential ROGO allocations until May 1, 2022.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016; Ord. No. 011-2021, § 1, 5-19-2021, eff. 9-13-2021)

(a)

Number of available annual residential ROGO allocations. The number of market rate residential ROGO allocations available in each subarea of the unincorporated county and the total number of affordable residential ROGO allocations and workforce housing early evacuation unit allocations available countywide shall be as follows:

The State of Florida, pursuant to Administration Commission Rules, may modify the annual allocation rate. The county adopted a slower rate of annual allocations for market rate development to extend the allocation timeframe to 2026 without exceeding the total of 1,970 allocations. By July 12, 2023, if substantial financial support is provided by state and federal partners, the county may reevaluate the ROGO distribution allocation schedule and consider an extended timeframe for the distribution of market rate allocations. If necessary, Monroe County will request a rule change from the Administration Commission to authorize an alternative allocation timeframe and rate.

(1)

Yearly residential ROGO allocation ratio. Each subarea shall have its number of market rate residential ROGO allocations available per ROGO year. Affordable ROGO allocations and workforce housing early evacuation unit allocations shall be available for countywide allocation except for Big Pine Key and No Name Key. The allocations for Big Pine Key and No Name Key shall be limited to maximums established in Big Pine Key/No Name Key Livable CommuniKeys Plan, Incidental Take Permit and Habitat Conservation Plan.

(2)

Quarterly residential ROGO allocation ratio. Each subarea shall have its number of market rate housing residential ROGO allocations available per ROGO quarter determined by the following formula:

a.

Market rate residential ROGO allocations available in each subarea per quarter is equal to the market rate residential ROGO allocations available in each subarea divided by four.

b.

Affordable housing residential ROGO for all four ROGO quarters, including the allocations available for Big Pine Key, shall be made available at the beginning of the first quarter for a ROGO year. Beginning July 13, 2016, the balance of all remaining affordable housing residential ROGO allocations shall be made available for award.

c.

Workforce initiative allocations shall be made available at the beginning of the first quarter of ROGO year July 13, 2021—July 12, 2022. All allocations shall be available for award, and shall be distributed on a first-come first-serve basis. Requests for workforce housing early evacuation unit allocations shall require a reservation via BOCC resolution.

(3)

Ratio of very low income, low income, and median income allocations to moderate income allocations. The Planning Commission may amend these proportions for affordable housing during any ROGO quarter.

(4)

Big Pine Key and No Name Key.

a.

All allocation awards on Big Pine Key and No Name Key are subject to the provisions of the Incidental Take Permit (ITP), the Habitat Conservation Plan (HCP) and Livable CommuniKeys Plan (LCP) for the Florida Key Deer and other covered species, which may affect ROGO allocations under this article.

b.

In the Big Pine Key/No Name Key subarea the annual maximum number of residential permit allocations that may be awarded in Tier I shall be no more than one (1) every 2 years. Until the ITP, HCP, biological opinion, and LCP are amended, a property owner attempting to develop his property may be granted an allocation through the ROGO process that may be used once that property owner obtains all required permits and authorizations required under the Endangered Species Act and other applicable federal and state laws. The allocation will remain valid so long as the applicant diligently and in good faith continues to work with USFWS to conclude the coordination and pick up a building permit.

(5)

Limit on number of allocation awards in Tier I.

a.

Big Pine Key/No Name Key subarea: The maximum ROGO allocations in Tier I shall be no more than one (1) every two (2) years.

b.

Upper Keys subarea: The annual maximum ROGO allocations in Tier I shall be no more than three (3).

c.

Lower Keys subarea: The annual maximum ROGO allocations in Tier I shall be no more than three (3).

(b)

Reservation of affordable housing allocations. Notwithstanding the provisions of Section 138-26 for awarding of affordable housing allocations or workforce initiative (workforce housing early evacuation unit) allocations, the BOCC may reserve by resolution some or all of the available affordable housing allocations or available workforce initiative allocations for award to certain sponsoring agencies or specific housing programs consistent with all other requirements of this chapter. Building permits for these reserved allocations shall be picked up within six months of the effective reservation date, unless otherwise authorized by the BOCC in its resolution. The BOCC may, at its discretion, place conditions on any reservation as it deems appropriate. These reservations may be authorized by the BOCC for:

(1)

The county housing authority, nonprofit community development organizations, pursuant to Section 139-1(e), and other public entities established to provide affordable housing by entering into a memorandum of understanding with one or more of these agencies;

(2)

Specific affordable or employee housing projects participating in a federal/state housing financial assistance or tax credit program or receiving some form of direct financial assistance from the county upon written request from the project sponsor and approved by resolution of the BOCC;

(3)

Specific affordable or employee housing projects sponsored by nongovernmental not-for-profit organizations above upon written request from the project sponsor and approved by resolution of the BOCC;

(4)

Specific affordable or employee housing programs sponsored by the county pursuant to procedures and guidelines as may be established from time to time by the BOCC;

(5)

Specific affordable or employee housing projects by any entity, organization, or person, contingent upon transfer of ownership of the underlying land for the affordable housing project to the county, a not-for-profit community development organization, or any other entity approved by the BOCC, upon written request from the project sponsor and approved by resolution of the BOCC; or

(6)

Rental employee housing projects situated on the same parcel of land as the nonresidential workplace for the tenants of these projects, upon written request from the property owner and approved by resolution of the BOCC; or

(7)

Workforce initiative housing projects, pursuant to Policy 101.3.12 and Section 138-24(c), that require occupants to evacuate in Phase 1 of the 48-hr evacuation of a pending major hurricane, are restricted to rental occupancy, and for those who derive at least 70% of their income as members of the workforce in Monroe County and who meet the affordable housing income categories of the Monroe County Land Development Code.

(c)

Affordable housing allocation awards and eligibility.

(1)

The definition of affordable housing shall be as specified in Sections 101-1 and 139-1.

(2)

Any portion of the affordable housing allocation not used for affordable housing at the end of a ROGO year shall be made available for affordable housing for the next ROGO year.

(3)

No affordable housing allocation shall be awarded to applicants located within a Tier I designated area, within a V-zone on the county's flood insurance rating map, or within a Tier III-A (special protection area) designated area.

Notwithstanding the foregoing, and notwithstanding Section 138-24(a)(5), affordable housing ROGO allocations may be awarded to Tier I or Tier III-A properties which meet all of the following criteria:

a.

The property contains an existing market rate dwelling unit that meets the criteria in LDC Section 138-22(a) and is determined to be exempt from ROGO;

b.

The proposed replacement affordable dwelling unit meets current Florida Building Code and is not a mobile home;

c.

The proposed replacement dwelling unit shall be deed restricted for a period of at least 99 years as affordable housing pursuant to the standards of the Land Development Code;

d.

The proposed site plan for the replacement affordable dwelling unit does not propose any additional clearing of habitat; and

e.

The structure is not proposed to be within a V-zone on the county's flood insurance rating map.

(4)

Only affordable housing allocations for Big Pine Key may be used on Big Pine Key. No affordable housing allocation may be used on No Name Key.

(d)

Dwelling unit allocation required. The county shall issue no building permit for a dwelling unit unless such dwelling unit:

(1)

Has a dwelling unit allocation award; or

(2)

Is exempted from the dwelling unit allocation system pursuant to this chapter or is deemed vested pursuant to Section 138-22.

(e)

Workforce initiative allocation awards, eligibility and requirements.

(1)

Pursuant to Policies 101.3.2, 101.3.3 and 101.3.12, Monroe County establishes a new allocation category to award 300 workforce housing early evacuation unit building permit allocations pursuant to the Workforce-Affordable Housing Initiative (workforce initiative). The Workforce-Affordable Housing Initiative will require dwelling units constructed and/ or deed restricted with workforce housing early evacuation building permit allocations to evacuate occupants in Phase 1 of the 48-hr evacuation of a pending major hurricane.

(2)

Dwelling units developed and/or deed restricted utilizing the workforce initiative allocations are subject to the following:

a.

Requests for workforce housing early evacuation unit allocations shall be available only for a 1 for 1 exchange for affordable allocations/exemptions and require a reservation via BOCC resolution. The BOCC may, at its discretion, place conditions on any reservation as it deems appropriate. The BOCC may, at its discretion, exchange existing reserved affordable allocations for allocations under the workforce initiative to private development and nonprofit sector partners willing to meet the requirements of the workforce housing early evacuation unit allocations. Further, the BOCC may, at its discretion, approve the exchange of existing deed-restricted affordable housing units (lawful affordable exemptions) at existing multifamily residential developments for allocations under the workforce initiative to private development and nonprofit sector partners willing to meet the requirements of the workforce housing early evacuation unit allocations.

1.

The affordable allocations returned to the county in exchange for workforce housing early evacuation unit allocations shall be banked and used for future administrative relief, beneficial use determinations and to resolve inverse condemnation cases and Bert J. Harris, Jr. Private Property Rights Protection Act cases.

2.

To maintain consistency with Rule 28-20.140(2)(b), F.A.C., the affordable allocations returned to the county shall be maintained as affordable allocations and shall also be returned to the original affordable housing income category (very low/low/median income vs. moderate income pool).

3.

The workforce housing early evacuation unit allocations must be utilized based on the original approved affordable housing income category or a lesser income category.

4.

Administrative relief means actions taken by the county granting the owner of real property relief from the continued application of the Rate of Growth Ordinance (ROGO) restrictions provided they meet the criteria established in the Comprehensive Plan and Land Development Code.

5.

Beneficial use means the use of property that allows an owner to derive a benefit or profit in the exercise of a basic property right. For the purpose of this policy, beneficial use shall mean the minimum use of the property necessary to avoid the finding of a regulatory taking under current land use case law.

b.

The construction of dwelling units, the redevelopment or the deed restriction of existing dwelling units utilizing workforce housing early evacuation unit allocations shall require approval of a resolution approving a contract between the BOCC and the applicant to officially exchange the allocations and confirm compliance with the requirements workforce initiative.

c.

All workforce housing early evacuation units require a deed-restriction ensuring:

1.

Before any building permit may be issued for any structure, portion or phase of a project subject to the workforce initiative, a restrictive covenant shall be approved by the Planning Director and County Attorney and recorded in the office of the Clerk of the County to ensure compliance with the provision of this section running in favor of the county and enforceable by the county and, if applicable, a participating municipality. The following requirements shall apply to these restrictive covenants:

i.

The covenants for any workforce housing early evacuation units shall be effective for 99 years.

ii.

The covenants shall not commence running until a certificate of occupancy has been issued by the Building Official for the dwelling unit or dwelling units to which the covenant or covenants apply.

iii.

For existing dwelling units that are deed-restricted as workforce housing early evacuation units, the covenants shall commence running upon recordation in the official records of Monroe County.

2.

The covenants shall require that the workforce housing early evacuation units to be restricted to rental occupancy for those who derive at least 70% of their income as members of the workforce in Monroe County and who meet the affordable housing income categories of the Monroe County Land Development Code. The occupants are required to annually verify their employment and income eligibility.

3.

The covenants shall require occupants to evacuate in Phase 1 of the 48-hr evacuation of a pending major hurricane. Persons living in the workforce housing early evacuation units who may be exempted from evacuation requirements are limited to law enforcement, correctional and fire personnel, health care personnel, and public employees with emergency management responsibilities. If there is an occupant that indicates their employment is considered a "first-responder position" and not included in the list of exemptions above, then the Planning Director shall determine, in writing, whether the person may be exempted because of a requirement to remain during an emergency. Any person claiming exemption under this provision shall submit an affidavit of qualification and faithfully certify their status with the onsite property management.

4.

The covenants shall require rental agreements which contain a separate disclosure requiring rental occupants to acknowledge the existing restrictive covenant on the unit requiring evacuation in Phase 1 of the 48-hr evacuation and that failure to adhere to the Phase 1 evacuation requirement could result in severe penalties, including eviction, to the occupant.

5.

The covenants shall require onsite property managers and a separate employment disclosure requiring the maintenance of training in evacuation procedures and an acknowledgement that failure to adhere to the Phase 1 evacuation requirement could result in severe penalties, including termination.

d.

Workforce housing early evacuation units shall be restricted to rental occupancy for those who derive at least 70% of their income as members of the workforce in Monroe County and who meet the affordable housing income categories of the Monroe County Land Development Code. Workforce means individuals or families who are gainfully employed supplying goods and/or services to Monroe County residents or visitors.

e.

Workforce housing early evacuation units shall require onsite property management with property managers trained in evacuation procedures and required to manage the evacuation of tenants in Phase I of an evacuation. During traditional working hours, the property manager must be at an office within the workforce housing early evacuation unit development subject property. Outside the traditional working hours, the property manager must be available at all times to respond to evacuation orders.

f.

The property management entity for the workforce housing early evacuation units shall be required to annually verify the employment and income eligibility of tenants; report the total units on the site, the occupancy rates of units, and tenant compliance with the requirement to evacuate the units in Phase 1 of an evacuation, including the number of occupants that are exempt from the evacuation requirements. The property management entity must submit a report to the Planning and Environmental Resources Department by May 1 of each year. Further, each lease and this annual report shall be kept by the property manager and be available for inspection by the county during traditional working hours.

g.

Workforce housing early evacuation units shall be located within an area designated as Tier III.

h.

Workforce housing early evacuation units shall not be located in the V-zone or within a Coastal Barrier Resource System (CBRS).

i.

Workforce housing early evacuation units shall be located on a property which has all infrastructure available (potable water, adequate wastewater treatment and disposal wastewater meeting adopted LOS, paved roads, etc.).

j.

All workforce housing early evacuation units must demonstrate compliance with all applicable federal standards for accessibility for persons with disabilities (ADA compliance).

k.

To the greatest extent practicable, a development utilizing workforce housing early evacuation unit allocations shall incorporate sustainable and resilient design principles into the overall site design and be accessible to employment centers in Key West, Stock Island and Marathon.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016; Ord. No. 019-2019, § 1, 6-19-2019; Ord. No. 006-2020, § 1, 1-22-2020, eff. 6-4-2020; Ord. No. 006-2021, § 2, 4-21-2021)

(a)

Deadlines for submission of building permit applications to be entered into the residential permit allocation system. No approved building permit application requiring a ROGO allocation award, including applications submitted under privatized plan review as provided for by Chapter 553, F.S., shall be accepted for the entry into the ROGO system under this chapter, unless the building permit application is submitted to the Building Department at least 30 days prior to the end of the allocation period appropriate for the application. A submission 30 days prior does not guarantee that it will be eligible to enter ROGO that quarter if it has not passed all required reviews.

(b)

Application for allocation. In each quarterly allocation period, the Planning and Environmental Resources Department shall accept applications to enter the residential ROGO system. Except for allocations to be reserved and awarded under Section 138-24(b), the ROGO application must be accompanied by an approved building permit application in order to be considered in the current allocation period. The Planning Director, or his or her designee, shall review the ROGO application for completeness. If the application is determined to be incomplete, the Planning Director, or his or her designee, shall reject the ROGO application and provide a written notice to the applicant specifying the application's deficiencies and the reasons therefore, within fifteen (15) working days. The Planning Director or his or her designee shall take no further action on the application unless the deficiencies are remedied. The application shall be assigned a controlling date that reflects the time and date of its submittal unless the application is determined to be incomplete. If the application is rejected, then the new controlling date shall be assigned when a complete application is submitted.

(c)

Application requirements. The ROGO application shall be submitted in a form provided by the Planning and Environmental Resources Department and meet the following requirements:

(1)

The application shall include a) the name and address of the property owner(s) of record and any authorized agents, to which certified notice of an allocation award will be mailed, if awarded, b) the property record card(s) from the Monroe County Property Appraiser, c) a written legal description of the property proposed for development, d) a boundary survey of the property proposed for development, prepared by a surveyor registered in the State of Florida, showing the boundaries of the site, elevations, bodies of water and wetlands on the site and adjacent to the site, existing structures including all impervious areas, existing easements, total acreage, and total acreage by habitat and e) a site plan. The boundary survey and site plan may be filed with the corresponding building permit application. Additional copies of the boundary survey and site plan are not required to be filed with the ROGO application.

(2)

If a conditional use permit is required in accordance with this Land Development Code for the development applied for, the conditional use permit shall be obtained and effective prior to submittal of any ROGO application. A copy of the recorded development order shall be submitted with the ROGO application.

(3)

The site plan shall be prepared and sealed by a professional architect, engineer, or any other professional licensed to prepare a site plan. The site plan shall be drawn to a scale of one inch equals ten feet or one inch equals 20 feet. At a minimum, the site plan shall depict the following features and information:

a.

Date, north point and graphic scale;

b.

Boundary lines of site, including all property lines and mean high-water lines shown in accordance with Florida Statutes;

c.

All attributes from the boundary survey;

d.

Future Land Use Map (FLUM) designation(s) of the site;

e.

Land Use (Zoning) District designation(s) of site;

f.

Tier designation(s) of the site;

g.

Flood zones pursuant to the Flood Insurance Rate Map;

h.

Setback lines as required by this Land Development Code;

i.

Locations and dimensions of all existing and proposed structures, including all paved areas and clear site triangles;

j.

Size and type of buffer yards and parking lot landscaping areas, including the species and number of plants;

k.

Extent and area of wetlands, open space preservation areas and conservation easements;

l.

Delineation of habitat types to demonstrate buildable area on the site, including any heritage trees identified and any potential species that may use the site (certified by an approved biologist and based on the most current professionally-recognized mapping by the U.S. Fish and Wildlife Service);

m.

Drainage plan including existing and proposed topography, all drainage structures, retention areas, drainage swales and existing and proposed permeable and impermeable areas;

n.

Location of fire hydrants or fire wells;

o.

The location of public utilities, including location of the closest available water supply system or collection lines and the closest available wastewater collection system or collection lines (with wastewater system provider) or on-site system proposed to meet required county and State of Florida wastewater treatment standards; and

p.

A table providing the total land area of the site, the total buildable area of the site, the type and number of all dwelling units, the amounts of impervious and pervious areas, and calculations for land use intensity, open space ratio, and off-street parking.

(d)

Fee for review of application. Each ROGO application shall be accompanied by a nonrefundable processing fee established by resolution of the BOCC. Additional fees are not required for successive review of the same ROGO application unless the application is withdrawn and resubmitted.

(e)

Compliance with other requirements. The ROGO application shall not constitute an indication of whether or not the applicant for a residential ROGO allocation has satisfied and complied with all county, state and federal requirements otherwise imposed by the County regarding conditions precedent to issuance of a building permit.

(f)

Non-county time periods. The County shall develop necessary administrative procedures and, if necessary, enter into agreements with other jurisdictional entities which impose requirements as a condition precedent to development in the county, to ensure that such non-county approvals, certifications and/or permits are not lost due to the increased time requirements necessary for the county to process and evaluate dwelling unit applications and issue allocation awards. The County may permit evidence of compliance with the requirements of other jurisdictional entities to be demonstrated by "coordinating letters" in lieu of approvals or permits.

(g)

Limitation on number of applications.

(1)

An individual entity or organization may submit only one (1) ROGO application per dwelling unit in each quarterly allocation period.

(2)

There shall be no limit on the number of separate parcels for which ROGO applications may be submitted by an individual, entity or organization.

(3)

A ROGO application for a given parcel shall not be for more dwelling units than are permitted by applicable zoning or land use regulations or the Comprehensive Plan.

(h)

Expiration of allocation award. Except as provided for in this article, an allocation award shall expire when its corresponding building permit is not picked up after 60 days of notification by certified mail of the award, or, after issuance of the building permit, upon expiration of the permit or after failure of the applicant to submit required plan revisions by the required date set forth in subsection (l) or after the failure to conclude the required coordination with FWS under the permit referral process in Section 122-12(d)(5).

(i)

Revisions of ROGO applications and awards.

(1)

An applicant may elect to revise a ROGO application to increase the competitive points in the application without prejudice or change in the controlling date if a revision is submitted on a form approved by the Planning Director to the Planning and Environmental Resources Department no later than 30 days following the Planning Commission approval of the previous ROGO rankings. Any such revision shall not involve changes to the approved building permit application. All other applications that are withdrawn and resubmitted that do not increase the competitive points or involve revisions to the approved building permit application shall be considered new, requiring payment of appropriate fees and receiving a new controlling date.

(2)

After receipt of an allocation award, and either before or after receipt of a building permit, but prior to receipt of a certificate of occupancy, no revisions shall be made to any aspect of the proposed residential development which formed the basis for the evaluation review, determination of points and allocation rankings, unless such revision would have the effect of increasing the points awarded, without the removal of any lot aggregation or land dedication or removal of an affordable housing deed restriction or density reduction restrictive covenant.

(j)

Clarification of application data.

(1)

At any time during the residential ROGO allocation review and approval process, the applicant may be requested by the Planning Director or the Planning Commission to submit additional information to clarify the relationship of the allocation application, or any elements thereof, to the evaluation criteria. If such a request is made, the Planning Director shall identify the specific evaluation criterion at issue and the specific information needed and shall communicate such request to the applicant.

(2)

Upon receiving a request from the Planning Director for such additional information, the applicant may provide such information, or the applicant may decline to provide such information and allow the allocation application to be evaluated as submitted.

(k)

Re-review of criteria and scores. All applications in or entering into the ROGO system on or after the effective date of the updated FEMA flood insurance rate maps, and all other applications competing in the ROGO system that have not received an allocation award on the effective date of the updated FEMA flood insurance rate maps, shall have the application scores reevaluated and updated based on the updated FEMA flood insurance rate maps (FIRM). Updated FEMA flood insurance rate maps are the maps adopted subsequent to FEMA FLOOD INSURANCE STUDY and the accompanying flood insurance rate maps, dated February 18, 2005; and included by reference within Chapter 122 of the Monroe County Land Development Code.

(l)

Revisions of building permit applications requiring the ROGO allocation(s). A building permit application for a proposed dwelling unit requiring a ROGO allocation must be approved prior to submitting a ROGO application. In the event that the Florida Building Code and/or a FEMA flood insurance rate map (FIRM) is amended between the date that a ROGO application is submitted and the date on which a building permit, requiring the ROGO allocation(s) applied for, is issued (which follows the date on which the required allocation(s) is awarded), if necessary, the applicant shall submit plan revisions to the building permit application demonstrating full compliance with the current Florida Building Code and the adopted FIRM in effect. These plan revisions shall be submitted within 180 days of the ROGO allocation award date or the applicant shall forfeit the ROGO allocation award. Following receipt of the plan revisions, the Building Department shall review the revisions as if the application is new (however retaining the same building permit number for administrative purposes), based on the building code and the adopted FIRM, for compliance prior to issuance of the building permit requiring the ROGO allocation(s) by the Building Official. Such mandatory revisions and review are limited to the modifications necessary to demonstrate compliance with the Florida Building Code and the adopted FIRM in effect at the time of building permit issuance. Any mandatory revisions that affect the footprint of a dwelling unit, increases clearing of habitat or increases the height of the structure shall be reviewed for compliance with the Land Development Code in effect at the time of permit issuance.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016; Ord. No. 030-2022, § 2, 11-15-2022)

(a)

Adjustment of residential ROGO allocations. At the end of each quarterly allocation period, the Planning Director shall recommend additions or subtractions to the basic allocation available by subarea, based upon any of the following, as appropriate:

(1)

The number of building permits for new residential units issued which expired.

(2)

The number of dwelling unit allocation awards that expired prior to issuance of a corresponding building permit and which were awarded in the current annual allocation period;

(3)

The number of residential ROGO allocation awards available which were not allocated during the quarterly allocation period in the current annual allocation period;

(4)

The number of residential ROGO allocation awards in previous quarters which were borrowed from future allocations to accommodate multiple unit projects or to accommodate allocation applications with identical scores, pursuant to Section 138-26(b)(2), or which were granted to applicants via either the appeals process, administrative relief or a beneficial use determination;

(5)

Residential ROGO allocations vested during the preceding quarter;

(6)

Any other modifications required or provided for by the Comprehensive Plan or an agreement pursuant to F.S. Chapter 380;

(7)

The receipt or transfer of affordable housing allocations from or to municipalities pursuant to this article;

(8)

Allocations reserved and/or awarded by the BOCC pursuant to Section 138-24(c).

(b)

Initial evaluation of allocation applications. Upon receipt of completed allocation applications, the Planning Director shall evaluate the allocation applications for market rate housing pursuant to the evaluation criteria set forth in Section 138-28.

(1)

Except for affordable housing, the Planning Director shall classify each allocation application by subarea.

(2)

On the evaluation cover page, for each allocation application, the Planning Director shall indicate the subarea and the number of dwelling units for which allocation awards are being requested. Market rate allocation applications shall be aggregated by subarea. Affordable housing allocation applications shall be aggregated on a countywide basis, except for the Big Pine Key/No Name Key subarea.

(3)

Within 30 days of the conclusion of a quarterly allocation period, unless otherwise extended by the BOCC, the Planning Director shall, for market rate allocations:

a.

Complete the evaluation of all allocation applications submitted during the relevant allocation period;

b.

Total the number of dwelling units by subarea for which allocation applications have been received; and

c.

Rank the allocation applications in descending order from the highest evaluation point total to the lowest and by controlling date, pursuant to subsection (e).

(4)

Within 30 days of the conclusion of a quarterly allocation period, unless otherwise extended by the BOCC, the Planning Director shall, for affordable housing allocations:

a.

Complete review of all allocation applications to confirm eligibility of applicants during the relevant allocation period;

b.

Total the number of dwelling units for the unincorporated county for which affordable housing allocation applications have been received; and

c.

List the affordable housing allocation applications in descending order of controlling date from earliest to latest date.

(5)

If the number of dwelling units represented by the allocation applications for market rate housing, by subarea, is equal to or less than the quarterly allocation, the Planning Director may make a recommendation to the Planning Commission that all of the allocation applications for that subarea be granted allocation awards.

(6)

If the number of dwelling units represented by the allocation applications for affordable housing is equal to or less than the available allocation, the Planning Director may make a recommendation to the Planning Commission that all of the allocation applications be granted allocation awards.

(7)

If the number of dwelling units represented by the allocation applications for market rate housing, by subarea, is greater than the quarterly allocation, the Planning Director shall submit an evaluation report to the Planning Commission indicating the evaluation rankings and identifying those allocation applications whose ranking puts them within the quarterly allocation, and those allocation applications whose ranking puts them outside of the quarterly allocation.

(8)

If the number of dwelling units represented by the allocation applications for affordable housing is greater than the total available allocation, the Planning Director shall submit a report to the Planning Commission indicating the applications in order of their control dates and identifying those allocation applications for which sufficient allocations exist and those allocation applications whose ranking by controlling date puts them outside the available allocation.

(c)

Public hearings. Upon completion of the evaluation ranking report and/or recommendation, the Planning Director shall schedule and notice a public hearing by the Planning Commission pursuant to otherwise applicable regulations.

(1)

At or prior to the public hearing, the Planning Commission may request, and the Planning Director shall supply, copies of the allocation applications and the Planning Director evaluation worksheets.

(2)

Upon review of the market rate allocation applications and evaluation worksheets, the Planning Commission may adjust the points awarded for meeting a particular criteria, adjust the rankings as a result of changes in points awarded, or make such other changes as may be appropriate and justified.

(3)

The basis for any Planning Commission changes in the scoring or ranking of market rate applications shall be specified in the form of a motion to adopt the allocation rankings and may include the following:

a.

An error in the designation of the applicable subarea.

b.

A mistake in the calculation of dedicated or aggregated lots/land.

c.

A mistake in assignment of the tier map designation in the application. Such a mistake in reading the tier designation in applying points for the application, any change to the tier map must go through the procedures for amendment of the tier map.

d.

Any other administrative error or omission that may cause the application to be incorrectly scored.

(4)

The public, including, but not limited to, applicants for allocation awards, shall be permitted to testify at the public hearing. Applicants may offer testimony about their applications or other applications; however, in no event may an applicant offer modifications to an application that could change the points awarded or the ranking of the application.

(5)

At the conclusion of the public hearing, the Planning Commission may:

a.

Move to accept the evaluation rankings for market rate housing applications and rankings for affordable housing applications as submitted by the Planning Director.

b.

Move to accept the rankings as may be modified as a result of the public hearing.

c.

Move to continue the public hearing to take additional public testimony.

d.

Move to close the public hearing but to defer action on the evaluation rankings pending receipt of additional information.

e.

Move to reject the rankings.

(6)

The Planning Commission shall finalize the rankings within 60 days following initial receipt of the Planning Director evaluation ranking, report and recommendations.

(d)

Notification to applicants. Upon finalization of the evaluation rankings by the Planning Commission, notice of the rankings, by subarea for market rate housing, and countywide for affordable housing, shall be posted at the Planning and Environmental Resources Department offices and at such other places as may be designated by the Planning Commission.

(1)

Applicants who receive allocation awards shall be further notified by certified mail, return receipt requested. After three (3) unsuccessful attempts to notify the applicant via certified mail, return receipt requested, the allocation award shall expire. Except as provided herein for allocations for affordable housing awarded by the BOCC pursuant to Section 138-24(b) and subsection (f) of this section, upon receipt of notification of an allocation award, the applicant may request issuance of a building permit for the applicable dwelling unit.

(2)

Applicants who fail to receive allocation awards shall be further notified by regular mail; without further action by such applicants or the payment of any additional fee, such applications shall remain in the residential ROGO system for reconsideration in the next succeeding quarterly allocation period.

(e)

Identical rankings for market rate housing applications. If two or more allocation applications in a given subarea have identical evaluation points, these applications shall be ranked in descending order from the earliest controlling date of submission to the latest. The Planning Commission may approve two or more allocation applications with identical rankings and controlling dates despite the fact that the quarterly allocation will be exceeded if:

(1)

A clear statement of findings of fact are made justifying the decision; and

(2)

The excess allocation is reduced from the next succeeding quarterly allocation period or is reduced pro rata from the next three quarterly allocation periods.

(f)

Extension of expiration period for Affordable Housing. Upon the written approval of the Planning Director, the expiration period for an allocation award for affordable multi-unit housing projects may be extended where the applicant is unable to be granted a sufficient number of allocations required to initiate the project. As may be required time to time, the BOCC may extend the 60-day expiration period for an allocation award by resolution upon finding that such extension is in the public interest.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Eligibility. An applicant for an allocation award is eligible for administrative relief if:

(1)

The application complies with all requirements of the dwelling unit allocation system;

(2)

The application has been denied an allocation award for four successive years (first 16 consecutive quarterly allocation periods) in the ROGO Permit Allocation System;

(3)

The proposed development otherwise meets all applicable county, state, and federal regulations;

(4)

The ROGO allocation application has not been withdrawn;

(5)

The applicant has complied with all the requirements of the ROGO Permit Allocation System; and

(6)

The applicant has followed the procedures for administrative relief; and

(7)

The applicant has not received an allocation award.

(b)

Notification of eligibility. Within 30 days of the finalization of evaluation rankings by the Planning Commission, any applicant determined to be eligible for administrative relief pursuant to subsection (a) of this section shall be notified of the applicant's eligibility for administrative relief by certified mail, return receipt requested.

(c)

Application. An application for administrative relief shall be made on a form prescribed by the Planning Director and may be filed with the Planning and Environmental Resources Department no earlier than the conclusion of the 16th quarterly allocation period and no later than 180 days following the close of the 16th quarterly allocation period.

(d)

Exceptions. Monroe County shall preclude the granting of administrative relief in the form of the issuance of a building permit for lands within the Florida Forever targeted acquisition or Tier I land areas unless, after 60 days from the receipt of a complete application for administrative relief, it has been determined the parcel cannot be purchased for conservation purposes by any county, state or federal agency or any private entity. The county shall routinely notify the Department of Environmental Protection of upcoming administrative relief requests at least six months prior to the deadline for administrative relief.

(e)

Forwarding application to board of county commissioners. Upon the filing of an application for administrative relief, the Planning Director shall forward to the BOCC all relevant files and records relating to the subject applications. Failure to file an application shall constitute a waiver of any rights under this section to assert that the subject property has been taken by the county without payment of just compensation as a result of the dwelling unit allocation system.

(f)

Public hearing. Upon receipt of an application for administrative relief, the BOCC shall notice and hold a public hearing at which the applicant will be given an opportunity to be heard. The BOCC may review the relevant applications and applicable evaluation ranking, taking testimony from county staff and others as may be necessary and hear testimony and review documentary evidence submitted by the applicant.

(g)

Board of county commissioners action. At the conclusion of the public hearing, the BOCC may take any or a combination of the following actions:

(1)

Offer to purchase the property at its fair market value as its preferred action if the property is located within:

a.

A designated Tier I area or within the Florida Forever (or its successor) targeted acquisition areas (unless, after 60 days from the receipt of a complete application for administrative relief, it has been determined no county, state or federal agency or any private entity is willing to offer to purchase the parcel);

b.

A designated Tier II area (Big Pine Key and No Name Key);

c.

A designated Tier III-A area (special protection area); or

d.

A designated Tier III area on a nonwaterfront lot or parcel for affordable housing.

(2)

Grant the applicant an allocation award for all or a number of dwelling units requested in the next succeeding quarterly allocation period or extended pro rata over several succeeding quarterly allocation periods as the preferred action for buildable properties not meeting any of the criteria in subsection (g)(1) of this section.

(3)

Suggest or provide such other relief as may be necessary and appropriate.

(h)

Limits on administrative allocations per quarter. The number of allocations that may be awarded under administrative relief in any one quarter shall be no more than 50 percent of the total available market rate allocations available, excluding banked administrative relief allocations and those allocations received from Key West, in a quarter for that subarea. Any allocations, excluding banked administrative relief allocations and those allocations received from Key West, in excess of 50 percent shall be extended into the succeeding quarter or quarters until the number of such allocations is 50 percent or less of the total number of market rate allocations available to be awarded.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Residential Evaluation Criteria. The point values established on the following pages are to be applied cumulatively:

For all applications entering the Residential Permit Allocation system after July 13, 2016, the following points and criteria shall apply:

(1)

Tier designation. Utilizing the Tier System for land classification, the following points shall be assigned to allocation applications for proposed dwelling units in a manner that encourages development of infill in predominately developed areas with existing infrastructure and few sensitive environmental features and discourages development in areas with environmentally sensitive upland habitat which are targeted for acquisition and the retirement of development rights for resource conservation and protection.

(2)

Big Pine and No Name Keys. The following negative points shall be cumulatively assigned to allocation applications for proposed dwellings to implement the Big Pine Key and No Name Key Habitat Conservation Plan (HCP) and the Livable CommuniKeys Community Master Plan.

(3)

Wetlands. The following points shall be assigned to allocation applications on Tier III parcels which have sufficient upland to be buildable (min of 2,000 sq. ft. of uplands) but also contain wetlands which require 100 percent open space pursuant to the Monroe County Comprehensive Plan and that are located adjacent or contiguous to Tier I properties.

(4)

Aggregation. The following points shall be assigned to allocation applications to encourage the voluntary reduction of density, for the retirement of development rights through aggregation of parcels and for the purpose of retirement of development rights through aggregation of legally platted buildable lots.

(5)

Land dedication. The following points shall be assigned to allocation applications to encourage, the voluntary dedication of vacant, buildable land within Tier I designated areas, Tier II (Big Pine Key and No Name Key), Tier III-A Special Protection Areas (SPA), and parcels which contain undisturbed wetlands for the purposes of conservation, resource protection, restoration or density reduction and, if located in Tier III outside of Special Protection Areas (SPA), for the purpose of retirement of development rights or providing land for affordable housing where appropriate. Applicants can utilize lands dedicated pursuant to Policy 101.5.26; however, submerged lands (inundated by water) shall not be eligible for land dedication.

(6)

Market rate housing in employee or affordable housing development. The following points shall be assigned to allocation applications for market rate housing units in an employee or affordable housing development:

(7)

Special flood hazard areas. The following points shall be assigned to allocation applications for proposed dwelling unit(s) to provide a disincentive for locating within certain coastal high flood hazard areas:

(8)

Central wastewater system availability. The following points shall be assigned to allocation applications to direct development to areas with sewer:

(9)

Payment to the Land Acquisition Fund. Up to two (2) whole points shall be awarded for a monetary payment by the applicant to the County's land acquisition fund for the purchase of lands for conservation, and retirement of development rights. The monetary value of each point shall be set annually by the County based upon the estimated average fair market value of vacant, privately-owned, buildable IS/URM zoned, platted lots.

Additional Requirements:

1.

The monetary value of each point shall be established annually by resolution of the BOCC.

2.

The monetary value of each point shall be based upon the average fair market value of privately-owned, buildable, vacant, IS/URM, platted lots divided by four.

3.

Payment to the County's land acquisition fund shall be prior to the issuance of any building permit pursuant to the allocation award.

(10)

Energy and Water Conservation. The following points shall be assigned to allocation applications on lands designated as Tier III to encourage the planting of native vegetation and promote water conservation and increased energy efficiency:

(11)

Perseverance Points.

(12)

The County shall not allow the reversal of any 'acreage tract density reduction,' previously approved restrictive covenant by the County and recorded in the official records of Monroe County, Florida, and used to assign extra points to a ROGO application, regardless of the status of the ROGO allocation award or associated building permit. In the event the dwelling unit was not constructed and the ROGO allocation award has expired, a subsequent ROGO allocation application on the same parcel(s) will be assigned the same number of extra points originally assigned for the 'density reduction.'

(13)

All applicants in the ROGO system upon the effective date of the ordinance from which this article is derived shall be notified by regular mail within 30 days from the effective date of the ordinance from which this article is derived by the county Planning and Environmental Resources Department of the new ROGO scoring system. In this notification, applicants shall be informed that they have 30 days from the date of the notification, if they so choose, to submit a revision to their ROGO application to receive positive points through aggregation, land dedication, or payment of fees to the land acquisition fund. Within this one-time, 30-day time period, applicants shall be able to revise their applications without payment of fees or a change in their controlling date upon condition that their approved building permit application is not revised.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016; Ord. No. 030-2022, § 2, 11-15-2022)

(a)

An appeal from the decision of the Planning Commission on a ROGO allocation shall be made to the BOCC. The notice of such appeal shall be in a form prescribed by the Planning Director and must be filed with the Planning Director within 20 working days of the Planning Commission's decision. Upon the filing of an appeal, the Planning Commission's secretary will forward to the board all relevant files and records relating to the matter. Failure to file an appeal with the BOCC shall constitute a waiver of any rights under this chapter to further dispute the decision of the Planning Commission.

(b)

The filing of an appeal shall not stay either the action of the Planning Commission or the action of the director of planning.

(c)

If, as a result of a successful appeal, additional allocation awards are to be made, the BOCC shall instruct the Planning Director as to how many dwelling unit applications shall receive allocation awards, when such allocation awards are to be made and what effect such additional allocation awards will have on the current annual or quarterly dwelling unit allocation. To ensure that the dwelling unit allocations set forth in Section 138-24 are not exceeded, the Planning Director shall inform the Planning Commission of the results of the appeal and the disposition of any additional allocation awards.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Allocation date means the specific date and time by which applications for the NROGO allocation will be accepted and processed.

Annual allocation period means the 12-month period beginning on July 14, 2001, and subsequent one-year periods that is used to determine the amount of nonresidential floor area to be allocated based on the number of ROGO allocations to be issued in the upcoming ROGO year.

Annual nonresidential ROGO allocation, also referred to as an annual NROGO allocation, means the maximum floor area that may be allocated during an annual allocation period.

Buildable lot or parcel, for the purposes of this article, means a lot or parcel which must contain a minimum of 2,000 square feet of uplands, including any disturbed wetlands that can be filled.

Canopy, also referred to as a sunshade, in reference to a structure, means an unenclosed, covered area. A canopy may be a free-standing structure or may project from the wall of a building.

Community master plan means a plan adopted by the board of county commissioners as part of the Monroe County Livable CommuniKeys Program.

Controlling date means the same as defined in Section 138-19(a), except it shall apply to NROGO applications under this article.

Historic resources means a building, structure, site, or object listed or eligible for listing individually or as a contributing resource in a district in the National Register of Historic Places, the state inventory of historic resources or the county register of designated historic properties.

Lawfully established ROGO/NROGO exemption means a dwelling unit or nonresidential floor area that has received a permit or other official approval from the division of growth management for the units unit and/or nonresidential floor area.

Nonresidential floor area means the sum of the total floor area for a nonresidential building or structure, as defined in Section 101-1. Additionally, covered and unenclosed boat racks with three or fewer sides not associated with retail sales of boats are not considered nonresidential floor area. Further, the term "nonresidential floor area" does not include space occupied by residential uses, including spaces occupied by a transient residential unit and an institutional-residential use as defined in Section 101-1.

Nonresidential ROGO allocation, also referred to as NROGO allocation, means the maximum amount of nonresidential floor area which may be allocated in a given time period.

Nonresidential ROGO allocation award, also referred to as NROGO allocation award, means the approval of a nonresidential ROGO application prior to the application and subsequent issuance of a building permit to authorize construction of new nonresidential floor area.

Nonresidential ROGO bank, also referred to as NROGO bank, means the cumulative total of a) NROGO allocations that were not awarded and thereby not allocated due to a lack of demand, b) nonresidential floor area not made available for the annual NROGO allocation by the BOCC; and c) allocated nonresidential floor area reclaimed due to the abandonment or expiration of approved development that received an NROGO allocation award.

Nonresidential ROGO bank account, also referred to as NROGO account, means one of the two accounts that cumulatively establish the NROGO bank. There are two accounts within the NROGO bank, with each carrying an independent balance of nonresidential floor area: 1) the Big Pine/No Name ROGO subarea account; and 2) the Upper and Lower Keys general (joint) account.

Quarterly nonresidential ROGO allocation means the maximum number of amount of nonresidential floor area square footage which may be allocated in a quarterly allocation period.

Quarterly nonresidential ROGO allocation period means any one of the four periods within an annual allocation period.

Site means the parcels of land required to be aggregated to be developed or from which existing nonresidential floor area is to be transferred or received.

(b)

Purpose and intent. The purposes and intent of the nonresidential rate of growth ordinance (NROGO) are:

(1)

To facilitate implementation of goals, objectives and policies set forth in the comprehensive plan relating to maintaining a balance between residential and nonresidential growth.

(2)

To maintain a ratio of approximately 239 square feet of nonresidential floor area for each new residential permit issued through the residential rate of growth ordinance (ROGO) by ROGO subarea.

(3)

To promote the upgrading and expansion of existing small-size businesses and to retain the predominately small scale character of nonresidential development in the Florida Keys.

(4)

To regulate the rate and location of nonresidential development in order to eliminate potential land use conflicts.

(5)

To allocate the nonresidential floor area annually hereunder, based on the goals, objectives and policies of the comprehensive plan and the community master plans.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Nonresidential ROGO allocation award required. No building permit shall be issued after September 19, 2001 that results in additional nonresidential floor area on a site unless that nonresidential development has received an NROGO allocation award or is determined to be exempt as provided in Section 138-50.

(b)

Applicable geographic area. The NROGO allocation system shall apply within the unincorporated area of the county, excluding areas within the county mainland and within Ocean Reef planned development.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

The NROGO shall apply to the development of all new and expanded nonresidential floor area, except as exempted by Section 138-50, for which a building permit or other final development approval is required.

(b)

Unincorporated areas other than Big Pine Key and No Name Key. Notwithstanding the provisions of development, as defined in Section 101-1, the following new uses shall only be eligible for an NROGO allocation under this article on sites located within a designated area approved for such use, identified within a community master plan and/or an overlay district established within Chapter 130:

(1)

Commercial retail very high-intensity uses that generate more than 150 vehicle trips per 1,000 square feet of floor area.

(c)

Big Pine Key and No Name Key. Notwithstanding the provisions of development, as defined in Section 101-1, in accordance with the community master plan for Big Pine Key and No Name Key, the following new uses or changes in use are prohibited on Big Pine Key and No Name Key:

(1)

Commercial retail high-intensity uses that generate more than 150 vehicle trips per 1,000 square feet of floor area.

(d)

Nonpublic institutional uses on Big Pine Key and No Name Key are subject to the provisions of NROGO pursuant to the following special conditions and standards:

(1)

A nonpublic institutional floor area and use existing on the effective date of the issuance of the incidental take permit for the Florida Key Deer and other covered species may be expanded by 2,500 square feet of floor area per NROGO year, provided that the land was owned by the institutional organization at the time of the issuance of the incidental take permit. These allocations are to be made on a "first come, first served" basis.

(2)

New nonpublic institutional uses on Big Pine Key and No Name Key are subject to the provisions of NROGO.

(e)

All new or expanded nonresidential development on Big Pine Key and No Name Key is subject to the provisions of the incidental take permit and the habitat conservation plan for the Florida Key Deer and other covered species, which may affect NROGO allocations under this article. All new and expanded nonresidential development shall be limited to scarified or disturbed lands, and clearing of any pinelands and/or hammock is prohibited.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

The NROGO shall not apply to the development described below:

(a)

Development with no net increase in nonresidential floor area. The redevelopment, rehabilitation or replacement of any lawfully established nonresidential floor area which does not increase the amount of nonresidential floor area greater than that which existed on the site prior to the redevelopment, rehabilitation or replacement.

The Planning Director shall review available documents to determine if a body of evidence exists to support the lawful existence of nonresidential floor area on or about September 19, 2001, the effective date of the original NROGO. Such evidence shall be documented and submitted to the Planning Director on a form provided by the Planning and Environmental Resources Department. Any issued Monroe County building permit(s) confirming the existence of the structure(s) and its use(s) on or about September 19, 2001 can stand as the only piece of evidence for an NROGO exemption.

If there are no building permit(s) which confirm the lawful existence of the structure(s) and its use(s) on or about September 19, 2001, the application shall include, at a minimum, at least two of the following documents:

(1)

Any other issued Monroe County building permit(s) supporting the existence of the structure(s) and its use(s) on or about September 19, 2001;

(2)

Documentation from the Monroe County Property Appraiser's Office indicating residential use on or about September 19, 2001;

(3)

Aerial photographs (to confirm the number of structures, not the type of structure) and original dated photographs showing the structure(s) existed on or about September 19, 2001;

(4)

Nonresidential County Directory entries on or about September 19, 2001;

(5)

Rental, occupancy or lease records, on or about September 19, 2001, indicating the number, type and term of the rental or occupancy;

(6)

State and/or county licenses, on or about September 19, 2001, indicating the nonresidential use;

(7)

Documentation from the utility providers indicating the type of service (commercial or residential) provided and the number of meters in existence on or about September 19, 2001; and

(8)

Similar supporting documentation not listed above as determined suitable by the Planning Director.

Nonresidential floor area established after the effective date of the original NROGO should be documented through the NROGO permit allocation system. Such nonresidential floor area that received such an NROGO allocation(s) that was constructed may be lawfully established through verification of the certificate of completeness/occupancy alone. Provision of affidavits to support the existence of nonresidential floor area is allowed, but affidavits cannot be the sole record upon which a decision is based. Other than files in which the growth management division is custodian, provision of documents is the responsibility of the applicant. Nonresidential floor area determined to be exempt from the NROGO per this subsection that has not been previously acknowledged by the Planning Director may also be a nonconformity, pursuant to Chapter 102, article III nonconformities. Such occasions shall require a separate determination by the Planning Director as to the lawfulness of the nonconformity.

(b)

Areas exempted from residential ROGO. Any area of the unincorporated county exempted from residential ROGO as provided for in Section 138-22.

(c)

Public/governmental uses. Public/governmental uses, including public buildings, as defined in Section 101-1.

(d)

Development activity for certain not-for-profit organizations. Except for the nonpublic institutional uses on Big Pine Key and No Name Key pursuant to Section 138-49, nonresidential development activity within Tier III designated areas by federally tax exempt not-for-profit educational, scientific, health, religious, social, cultural and recreational organizations which predominately serve the county's non-transient population, if approved by the BOCC after review and recommendation by the Planning Director and Planning Commission. This exemption is subject to the condition that a restrictive covenant be placed on the property prior to the issuance of a building permit. The restrictive covenant shall run in favor of the county for a period of at least 20 years. Any change in the use or ownership of the property subject to this restrictive covenant shall require prior approval by the Planning Commission, unless the total floor area exempted by the Planning Commission is obtained through an off-site transfer of floor area and/or nonresidential floor area allocation. If the total amount of floor area that is transferred and/or allocated meets or exceeds the total amount of floor area exempted, the restrictive covenant shall be vacated by the county. This exemption is not applicable to nonresidential development proposed within any Tier I or Tier III-A (special protection area) designated areas.

(e)

Vested rights. Landowners with a valid, unexpired development of regional impact approval granted by the county prior to January 4, 1996, (effective date of the Comprehensive Plan) or an approved vesting determination by the county from the nonresidential allocation requirements of this section and the Comprehensive Plan.

(f)

De expansion or de minimis addition of new nonresidential floor area. The cumulative addition of up to 1,000 square feet of new nonresidential floor area shall not require an NROGO application and NROGO allocation prior to issuance of a building permit. De minimis is not required to be utilized in whole or limited to a single building permit application; however cumulatively, an individual property shall not receive any more than 1,000 square feet of new nonresidential floor via de minimis expansion and/or addition. Nonresidential floor area permitted via de minimis expansion and/or addition shall be deducted from the annual NROGO allocation or the NROGO bank.

(g)

Uses in the Industrial (I) and Maritime Industries (MI) districts. Industrial uses in the Maritime Industries (MI) and the Industrial (I) land use (zoning) districts, provided that the floor area is restricted to manufacturing, assembly, wholesaling, and distribution uses. Uses permitted in the Rockland Key Commercial Retail Center Overlay District pursuant to Section 130-131. All other forms of industrial uses and other nonresidential uses which may be permitted in the land use (zoning) district are subject to the requirements of this article and will require an NROGO allocation.

(h)

Agriculture/aquacultural uses. Agricultural and aquacultural uses in the agricultural and aquaculture use overlay (A).

(i)

Canopy.

(j)

Transfer off-site of existing nonresidential floor area. The demolition/removal and transfer off-site of nonresidential floor area from a sender site and the development of the transferred nonresidential floor area on a receiver site in accordance with the following procedures and criteria:

(1)

Eligibility of sender floor area. Nonresidential floor area shall be lawfully established floor area pursuant to subsection (a) or have received an NROGO allocation or transfer of floor area after September 19, 2001.

(2)

Criteria:

a.

The receiver site shall be within a Tier III designated area and, if on Big Pine Key, it shall also be is located within the designated community center overlay area;

b.

The receiver site shall be located within the same ROGO subarea, as set forth in Section 138-20, as the sender site;

c.

The use that would utilize the transferred nonresidential floor area on the receiver site shall not be a high-intensity commercial retail use which will generate more than 150 daily vehicle trips per 1,000 square feet of floor area, unless the receiver site is within an overlay district or area, established in a community master plan or within Chapter 130, specifically allowing such a high-intensity commercial retail use;

d.

The receiver site shall not be located within a V special flood hazard zone;

e.

The receiver site shall not be located in a coastal barrier resources system; and

f.

The receiver site shall not be located in an offshore island/conservation land protection area.

(3)

Limitations on the amount of nonresidential floor area which may be transferred to any one site. The amount of nonresidential floor area which may be transferred to any one site shall be as follows:

a.

No more than a maximum cumulative total of 50,000 square feet of nonresidential floor area may be transferred to any one site.

b.

A structure utilizing the transferred nonresidential floor area shall not be greater than 10,000 square feet, except for a) a structure within the Urban Commercial (UC) land use (zoning) district consist of up to a maximum total of 50,000 square feet of nonresidential floor area and b) a structure within an overlay district or area, established in a community master plan or within Chapter 130, may consist of up to a maximum total of nonresidential floor area set forth in the superseding overlay district or area.

(4)

Procedures. The following procedures shall be followed for permitting transfer of nonresidential floor area off-site:

a.

A minor conditional use permit shall be required to identify, determine the eligibility of and document the approval of the sender and receiver site, pursuant to the process set forth in Section 110-69. If a single receiver site is proposed to receive the transferred nonresidential floor area from multiple sender sites, only a single minor conditional use permit application shall be required. All sender and receiver sites associated with a proposed transfer shall be identified at the time of application.

b.

The minor conditional use permit application required in the previous subsection shall be submitted in a form provided by the Planning and Environmental Resources Department. A development order shall memorialize approval of the minor conditional use permit. After successfully passing all applicable appeal periods, the development order shall be recorded in the official records of the Monroe County Clerk of the Circuit Court. Such recording shall be carried out so that the document is associated with all applicable sender and receiver sites.

c.

No building permit shall be issued for the nonresidential floor area on the receiver site until the sending site structure is demolished as per an issued demolition permit and a final inspection for the demolished floor space has been completed by the Building Department.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Maximum amount of available floor area for the annual nonresidential ROGO allocations. The annual amount of floor area available for allocation under NROGO shall be 47,083 square feet. Beginning NROGO Year 22 (July 13, 2013), this floor area shall be distributed to each of subareas as provided in the following table:

(b)

Maximum allocation of nonresidential floor area by site per each allocation quarter. The amount of nonresidential floor area to be allocated shall be limited to a maximum share of 10,000 square feet for any one site per each allocation quarter.

(c)

Maximum floor area per structure. A structure shall not receive an allocation that expands the structure to more than 10,000 square feet of nonresidential floor area, excluding: a) a structure in the Urban Commercial (UC) land use (zoning) district may receive an allocation that expands the structure to not more than 50,000 square feet and b) a structure within an overlay district established in a community master plan, in which the maximum shall be governed by the master plan if applicable, or within Chapter 130 specifically allowing such a structure of over 10,000 square feet.

(d)

Allocation dates. To be considered for an allocation award, all NROGO applications must be submitted to the Planning and Environmental Resources Department and deemed complete by the Planning Director, or his or her designee, by no later than 4:00 p.m. on the specified allocation quarter closure, which shall be the same dates as those for the residential ROGO.

(e)

Annual nonresidential ROGO allocation. This annual allocation shall be distributed between the four allocation quarters, which shall be the same dates as those for the residential ROGO.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Deadlines for submission of building permit applications to be entered into the nonresidential permit allocation system. No approved building permit application requiring an NROGO allocation award, including applications submitted under privatized plan review as provided for by Chapter 553, F.S., shall be accepted for the entry into the NROGO system under this chapter, unless the building permit application is submitted to the Building Department at least 30 days prior to the end of the allocation period appropriate for the application. A submission 30 days prior does not guarantee that it will enter NROGO that quarter if it has not passed all required reviews.

(b)

Application for allocation by way of the NROGO allocation system. Applications competing in the Residential Permit Allocation system that have not received an allocation award in quarter 4, ROGO year 24, ending July 12, 2016, shall receive perseverance points as listed above. The Planning and Environmental Resources Department shall accept applications to enter the NROGO system. The NROGO application must be accompanied by an approved building permit application in order to be considered. The Planning Director, or his or her designee, shall review the NROGO application for completeness. If the application is determined to be incomplete, the Planning Director, or his or her designee, shall reject the NROGO application and provide a written notice to the applicant specifying the application's deficiencies, and the reasons therefore, within fifteen (15) working days. The Planning Director or his or her designee shall take no further action on the application unless the deficiencies are remedied. If determined to be complete, the application shall be assigned a controlling date.

(c)

Application requirements. The NROGO application shall be submitted in a form provided by the Planning and Environmental Resources Department and meet the following requirements:

(1)

The application shall include a) the name and address of the property owner(s) of record and any authorized agents, b) the property record card(s) from the Monroe County Property Appraiser, c) a written legal description of the property proposed for development, d) a boundary survey of the property proposed for development, prepared by a surveyor registered in the State of Florida, showing the boundaries of the site, elevations, bodies of water and wetlands on the site and adjacent to the site, existing structures including all impervious areas, existing easements, total acreage and total acreage by habitat and e) a site plan. The boundary survey and site plan may be filed with the corresponding building permit application. Additional copies of the boundary survey and site plan are not required to be filed with the NROGO application.

(2)

If a conditional use permit is required in accordance with this Land Development Code for the development applied for, the conditional use permit shall be obtained and effective prior to submittal of any NROGO application. A copy of the recorded development order shall be submitted with the NROGO application.

(3)

The site plan shall be prepared and sealed by a professional architect, engineer, or any other professional licensed to prepare a site plan. The site plan shall be drawn to a scale of one inch equals ten feet or one inch equals twenty feet. At a minimum, the site plan shall depict the following features and information:

a.

Date, north point and graphic scale;

b.

Boundary lines of site, including all property lines and mean high-water, lines shown in accordance with Florida Statutes;

c.

All attributes from the boundary survey;

d.

Future Land Use Map (FLUM) designation(s) of the site;

e.

Land Use (Zoning) District designation(s) of site;

f.

Tier designation(s) of the site;

g.

Flood zones pursuant to the Flood Insurance Rate Map;

h.

Setback lines as required by this Land Development Code;

i.

Locations and dimensions of all existing and proposed structures, including all paved areas and clear site triangles;

j.

Size and type of buffer yards and parking lot landscaping areas, including the species and number of plants;

k.

Extent and area of wetlands, open space preservation areas and conservation easements;

l.

Delineation of habitat types to demonstrate buildable area on the site, including any heritage trees identified and any potential species that may use the site (certified by an approved biologist and based on the most current professionally recognized mapping by the U.S. Fish and Wildlife Service);

m.

Drainage plan including existing and proposed topography, all drainage structures, retention areas, drainage swales and existing and proposed permeable and impermeable areas;

n.

Location of fire hydrants or fire wells;

o.

The location of public utilities, including location of the closest available water supply system or collection lines and the closest available wastewater collection system or collection lines (with wastewater system provider) or on-site system proposed to meet required County and State of Florida wastewater treatment standards; and

p.

A table providing the total land area of the site, the total buildable area of the site, the type and square footage of all nonresidential land uses, the type and number of all dwelling units, the amounts of impervious and pervious areas, and calculations for land use intensity, open space ratio, and off-street parking.

(d)

Fee for review of application. Each NROGO application shall be accompanied by a nonrefundable processing fee established by resolution of the BOCC. Additional fees are not required for successive review of the same NROGO application unless the application is withdrawn and resubmitted.

(e)

Compliance with other requirements. The NROGO application shall not constitute an indication of whether or not the applicant for the nonresidential floor area allocation has satisfied and complied with all county, state, and federal requirements otherwise imposed by the county regarding conditions precedent to issuance of a building permit.

(f)

Time of review. The Planning Director may retain the allocation application and its associated building permit application for review pursuant to the evaluation procedures and criteria set forth in Section 138-53 and Section 138-55.

(g)

Non-county time periods. The county shall develop necessary administrative procedures and, if necessary, enter into agreements with other jurisdictional entities which impose requirements as a condition precedent to development in the county, to ensure that such non-county approvals, certifications and/or permits are not lost due to the increased time requirements necessary for the county to process and evaluate NROGO applications and issue allocation awards. The county may permit evidence of compliance with the requirements of other jurisdictional entities to be demonstrated by coordination letters in lieu of approvals or permits.

(h)

Limitation on number of applications.

(1)

An individual entity or organization may have only one active NROGO application per site in the allocation period.

(2)

There shall be no limit to the number of separate projects for which NROGO applications may be submitted by an individual, entity or organization.

(i)

Expiration of allocation award. Except as provided for in this article, an allocation award shall expire when its corresponding building permit is not picked up after 60 days of notification by certified mail of the award, or, after issuance of the building permit, upon expiration of the permit or after failure of the applicant to submit required plan revisions by the required date set forth in subsection (n) or after the failure to conclude the required coordination with FWS under the permit referral process in Section 122-12 (d)(5).

(j)

Withdrawal of NROGO application. An applicant may elect to withdraw an NROGO application without prejudice at any time up to finalization of the evaluation rankings by the Planning Commission. Revision and resubmission of the withdrawn application must be in accordance with subsection (k) of this section.

(k)

Revisions to applications and awards.

(1)

Upon submission of an NROGO application, an applicant may revise the application if it is withdrawn and resubmitted prior to the allocation date for the allocation period in which the applicant wishes to compete. Resubmitted applications shall be considered new, requiring payment of appropriate fees and receiving a new controlling date.

(2)

After receipt of an allocation award, and either before or after receipt of a building permit being obtained, but prior to receipt of a certificate of occupancy or final inspection, no revisions shall be made to any aspect of the proposed nonresidential development which formed the basis for the evaluation review, determination of points and allocation rankings, unless such revision would have the effect of increasing the points awarded without the removal of any land dedication or removal of an affordable housing deed restriction.

(3)

After the receipt of an allocation award, a building permit and a certificate of occupancy or final inspection, no revision shall be made to any aspect of the completed nonresidential development which formed the basis for the evaluation, review, determination of points and allocation rankings, unless such revisions are accomplished pursuant to a new building permit and unless such revisions would have the net effect of either maintaining or increasing the number of points originally awarded.

(l)

Clarification of application data.

(1)

At any time during the NROGO allocation review and approval process, the applicant may be requested by the Planning Director or the Planning Commission, to submit additional information to clarify the relationship of the allocation application, or any elements thereof, to the evaluation criteria. If such a request is made, the Planning Director shall identify the specific evaluation criterion at issue and the specific information needed and shall communicate such request to the applicant.

(2)

Upon receiving a request from the Planning Director for such additional information, the applicant may provide such information; or the applicant may decline to provide such information and allow the allocation application to be evaluated as submitted.

(m)

Re-review of criteria and scores. All applications in or entering into the NROGO system on or after the effective date of the updated FEMA flood insurance rate maps, and all other applications competing in the NROGO system that have not received an allocation award on the effective date of the updated FEMA flood insurance rate maps, shall have the application scores reevaluated and updated based on the updated FEMA flood insurance rate maps (FIRM). Updated FEMA flood insurance rate maps are the maps adopted subsequent to FEMA flood insurance study and the accompanying flood insurance rate maps, dated February 18, 2005; and included by reference within Chapter 122 of the Monroe County Land Development Code.

(n)

Revisions of building permit applications requiring the NROGO allocation(s). A building permit application for proposed nonresidential floor area requiring an NROGO allocation must be approved prior to submitting an NROGO application. In the event that the Florida Building Code and/or a FEMA flood insurance rate map (FIRM) is amended between the date on which an NROGO application is submitted and the date on which a building permit requiring the NROGO allocation(s) applied for is issued (which follows the date on which the required allocation(s) is awarded), if necessary, the applicant shall submit plan revisions to the building permit application demonstrating full compliance with the current Florida Building Code and the adopted FIRM in effect. These plan revisions shall be submitted within 180 days of the NROGO allocation award date or the applicant shall forfeit the NROGO allocation award. Following receipt of the plan revisions, the Building Department shall review the revisions as if the application is new (however retaining the same building permit number for administrative purposes), based on the building code and the adopted FIRM, for compliance prior to issuance of the building permit requiring the NROGO allocation(s) by the Building Official. Such mandatory revisions and review are limited to the modifications necessary to demonstrate compliance with the Florida Building Code and the adopted FIRM in effect at the time of building permit issuance. Any mandatory revisions that affect the footprint of the structure, increases clearing of habitat or increases the height of the structure shall be reviewed for compliance with the Land Development Code in effect at the time of permit issuance.

(o)

Application for allocation by way of the NROGO bank. The Planning and Environmental Resources Department shall maintain a record of NROGO allocations that were not awarded in annual NROGO allocation periods. This shall be known as the NROGO bank. As of July 12, 2012 (NROGO Year 20), the NROGO bank balance for each ROGO subarea was as follows:

Prior to the opening date of NROGO Year 22 (July 13, 2013), the Planning and Environmental Resources Department shall determine the precise balance of the NROGO bank.

Upon availability of nonresidential floor area in a given and applicable ROGO account within the NROGO bank, the Planning and Environmental Resources Department shall accept applications from applicants requesting the banked nonresidential floor area. The NROGO application must be accompanied by an approved building permit application in order to be considered. The Planning Director, or his or her designee, shall review the application for completeness. If the application is determined to be incomplete, the Planning Director shall reject the application and notify the applicant of such rejection, and the reasons therefor, within 30 days. The application shall be submitted in a form provided by the Planning and Environmental Resources Department and meet the same requirements for a standard NROGO application as set forth in subsection 138-52(b). Each application shall be accompanied by a nonrefundable processing fee as established by resolution of the board of county commissioners.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016; Ord. No. 030-2022, § 2, 11-15-2022)

(a)

Initial evaluation of allocation applications. Upon receipt of completed NROGO allocation applications, the Planning Director or his or her designee shall evaluate the allocation applications pursuant to the evaluation criteria set forth in Section 138-55.

(1)

Within 30 days of an allocation date, unless otherwise extended by the Planning Commission, the Planning Director shall:

a.

Complete the evaluation of all allocation applications submitted during the relevant allocation period;

b.

Total the amount of square footage for which allocation applications have been received for each ROGO subarea (Upper Keys; Lower Keys; and Big Pine Key/No Name Key); and

c.

Rank the allocation applications, in descending order from the highest evaluation point total to the lowest for each ROGO subarea and by controlling date pursuant to subsection (d).

(b)

Public hearings and allocation awards. Upon completion of the evaluation ranking report and/or recommendation, the Planning Director shall schedule and notice a public hearing by the Planning Commission pursuant to otherwise applicable regulations.

(1)

At or prior to the public hearing, the Planning Commission may request, and the Planning Director shall supply, copies of the allocation applications and the evaluation worksheets.

(2)

Upon review of the allocation applications and evaluation worksheets, the Planning Commission may adjust the points awarded for meeting a particular criterion, adjust the rankings as a result of changes in points awarded, or make such other changes as may be appropriate and justified.

(3)

The basis for Planning Commission changes shall be specified in the form of a motion to adopt the allocation rankings and may include the following:

a.

A mistake in the application of one or more of the evaluation criteria; and

b.

A misinterpretation of the applicability of an evaluation criterion.

(4)

The public, including, but not limited to, applicants for allocation awards, shall be permitted to testify at the public hearing. Applicants may offer testimony about their applications or other applications; however, in no event may an applicant offer modifications to an application that could change the points awarded or the ranking of the application.

(5)

At the conclusion of the public hearing, the Planning Commission may:

a.

Move to accept the evaluation rankings as submitted by the Planning Director;

b.

Move to accept the evaluation rankings as may be modified as a result of the public hearing;

c.

Move to continue the public hearing to take additional public testimony;

d.

Move to close the public hearing but to defer action on the evaluation rankings pending receipt of additional information; and

e.

Move to reject the evaluation rankings.

(6)

The Planning Commission shall finalize the evaluation rankings within 60 days following initial receipt of the Planning Director evaluation ranking, report and recommendation.

(c)

Notification to applicants. Upon finalization of the evaluation rankings by the Planning Commission, notice of the rankings shall be posted at the Planning and Environmental Resources Department and at such other places as may be designated by the Planning Commission.

(1)

Applicants who receive allocation awards shall be further notified by certified mail, return receipt requested. After three (3) unsuccessful attempts to notify the applicant via certified mail, return receipt requested, the allocation award shall expire. Upon receipt of notification of an allocation award, the applicant may request issuance of a building permit for the applicable development of the allocated nonresidential floor area.

(2)

Applicants who fail to receive allocation awards shall be further notified by regular mail, return receipt requested; without further action by such applicants nor the payment of any additional fee, such applications shall remain in the NROGO system for reconsideration at the next allocation in the current or following annual allocation period.

(d)

Identical rankings. If two or more allocation applications in a given size classification receive an identical evaluation ranking and both (or all) cannot be granted allocation awards within the allocation period, the Planning Commission shall award the allocation to the completed application first submitted, based on the controlling date of the application. If two or more such completed applications were submitted with the same controlling date, the available allocation shall be awarded to the application with the fewest number of negative points.

(e)

Allocation by way of the NROGO bank. Concerning applications submitted pursuant to Section 138-52(n), if nonresidential floor area is available in an NROGO subarea account within the NROGO bank, upon receipt of completed application, the Planning Director shall evaluate the application pursuant to the evaluation criteria set forth in Section 138-55.

(1)

Public hearing. Excluding reservations granted by the BOCC, the Planning Director shall schedule and notice the application for review and decision by the Planning Commission at a public hearing.

a.

Allocation by Planning Commission. Allocations by way of the NROGO bank shall only be awarded four times per NROGO year, on the same public hearing dates in which annual NROGO allocations are awarded per Section 138-53(b). Such allocations shall be awarded pursuant to subsections (e)(2) through (e)(12).

b.

Reservation of allocation by the Board of County Commissioners. Notwithstanding provisions of subsections (e)(2) through (e)(12), the BOCC may, for projects in excess of 10,000 square feet of nonresidential floor area, reserve by resolution, for up to eighteen (18) months, some or all of the available nonresidential floor area within an applicable account within the NROGO bank for a specified development. Prior to the public hearing in which the reservation is to be considered, the applicant shall a) if necessary, have entered into a development agreement with Monroe County for the development requiring the nonresidential floor area and b) if required, have been issued a conditional use permit for the development requiring the nonresidential floor area. Building permits for these reserved allocations shall be picked up within six months of the effective reservation date, unless otherwise authorized by the BOCC in its resolution. The BOCC may, at its discretion, place conditions on any reservation as it deems appropriate.

(2)

NROGO bank accounts. Beginning July 13, 2013, the NROGO bank shall consist of two accounts. The accounts consist of 1) Upper Keys and Lower Keys (joint or general) account, and 2) Big Pine Key and No Name Key subarea account. The boundaries of the ROGO subareas are defined in section 138-20(c). An applicant may only request nonresidential floor area from the account associated with the ROGO subarea in which the subject property is located. As of July 13, 2013, pursuant to Section 138-51(a), the distribution of the annual NROGO allocation shall be distributed to each of the ROGO subareas based on the number of dwelling unit permits made available for each of the ROGO subareas. The unused remainders of nonresidential floor area from the annual NROGO allocation for each of the ROGO subareas shall roll over into the applicable NROGO accounts (general, or Big Pine Key and No Name Key subarea account) within the NROGO bank each year. Nonresidential floor area within a given subarea NROGO account shall be available for eligible developments within the boundaries of that subarea. The nonresidential floor area within the general (joint) NROGO account shall be available for eligible developments within the boundaries of either the Upper Keys or Lower Keys subareas. On the opening day of each subsequent NROGO year (July 13), excluding the reserves provided for in subsection (e)(4), the non-reserve balances of the general (joint) account shall be returned to the general (joint) account for the Upper Keys and Lower Keys ROGO subareas.

(3)

Eligibility per tier designation. Only applications for developments within Tier III designated areas shall be eligible for allocation by way of the NROGO bank.

(4)

NROGO subarea account reserves. The general (joint) account shall maintain reserves of 20,000 square feet for the Upper Keys and Lower Keys NROGO subarea. The Big Pine/No Name Key subarea account is not required to maintain a reserve.

(5)

Noncompetitive applications. If the total amount of nonresidential floor area requested in a single application or cumulatively in multiple applications by separate applicants is equal to or less than the amount available in the applicable NROGO bank (excluding reserved floor area) account, the Planning Commission may grant the total amount of nonresidential floor area requested in the application(s) to the applicant(s).

(6)

Competitive applications. If the total amount of nonresidential floor area requested in a single application or cumulatively in multiple applications by separate applicants is greater than that the total amount available in the applicable NROGO bank accounts (excluding reserved floor area), the Planning Director shall submit an evaluation report to the Planning Commission indicating the evaluation rankings. The Planning Commission shall award available nonresidential floor area in the applicable NROGO bank account (excluding reserved floor area) to the applicant with most points pursuant to Section 138-55. If the highest scoring applicant does not request the entire amount available in an NROGO bank account, the Planning Commission shall award the remaining available nonresidential floor area in the applicable NROGO bank account (excluding reserved floor area) to the application with the second highest score and so on until the NROGO bank reaches its balance (excluding reserves).

(7)

Single application requesting more than the balance in an NROGO bank account. If there are not any competing applications, the Planning Commission may grant the total amount of nonresidential floor area available in an NROGO bank account (excluding reserved floor area) to the applicant and require the applicant to acquire the remaining nonresidential floor area through the NROGO permit allocation system.

(8)

De minimis applications. Square footage for de minimis applications may be deducted from the annual NROGO allocation or the NROGO bank. Nonresidential floor area permitted via de minimis shall be deducted from the NROGO subarea account in which the property is located.

(9)

Testimony. The public, including but not limited to applicants, shall be permitted to testify at the public hearing. Applicants may offer testimony about their applications or other applications; however, in no event may an applicant offer modifications to an application that could change the points awarded or the ranking of the application.

(10)

Decision by the Planning Commission. At the conclusion of the public hearing, the Planning Commission may:

a.

If applicable, move to accept the evaluation rankings as submitted by the Planning Director;

b.

If applicable, move to accept the evaluation rankings as may be modified as a result of the public hearing;

c.

Move to continue the public hearing to take additional public testimony;

d.

Move to close the public hearing but to defer action on the evaluation rankings pending receipt of additional information; and

e.

Move to reject the evaluation rankings.

Within 60 days of the public hearing, the Planning Commission shall render its final decision on an application for an allocation by way of the NROGO bank by resolution. If an approval, the resolution shall be issued and pass all relevant appeal periods prior to issuance of a building permit requiring the nonresidential floor area awarded by the resolution.

(11)

Opening balances. Opening balances for the NROGO bank accounts as of NROGO Year 22 (July 13, 2013). The opening balances for the NROGO bank accounts shall be determined and calculated by the Planning and Environmental Resources Department based on available and unused annual nonresidential floor area from NROGO Years 10 through 21.

(12)

Joint Account. Commencing NROGO Year 23 (July 13, 2014), on the opening date of each NROGO Year, excluding the reserves provided for in subsection (e)(4), the non-reserve balances of the general (joint) bank account for the Upper Keys ROGO subarea and the Lower Keys ROGO subarea shall be returned to the general or joint account for award within the Upper Keys and Lower Keys ROGO subareas.

(13)

Notification to the general public of the availability of the NROGO account balances. For each of the four Planning Commission public hearings in a given NROGO Year in which NROGO allocations may be awarded, the Planning and Environmental Resources Department shall provide a detailed report to the Planning Commission and general public providing the exact balances of nonresidential floor area that exist within the NROGO bank. In addition, these balances shall be provided in the newspaper advertisements for the Planning Commission public hearings (as required by Section 110-5) in which NROGO allocation awards may be awarded.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Eligibility. An applicant is eligible for administrative relief under the provisions of this section if all the following criteria are met:

(1)

The applicant has complied with all requirements of the nonresidential permit allocation system;

(2)

The application has been denied an allocation award for four successive years (first 16 consecutive quarterly allocation periods) in the NROGO Allocation System;

(3)

The proposed development otherwise meets all applicable county, state, and federal regulations;

(4)

The subject application has not been withdrawn;

(5)

The applicant has complied with all the requirements of the NROGO Allocation System;

(6)

The applicant has followed the procedures for administrative relief; and

(7)

The applicant has not received an allocation award.

(b)

Application. An application for administrative relief shall be made on a form prescribed by the Planning Director and may be filed with the Planning and Environmental Resources Department no earlier than the conclusion of the fourth allocation period and no later than 180 days following the close of the fourth annual allocation period.

(c)

Waiver of rights. Failure to file an application shall constitute a waiver of any rights under this section to assert that the subject property has been taken by the county without payment of just compensation as a result of the nonresidential floor area allocation system.

(d)

Exceptions. Monroe County shall preclude the granting of administrative relief in the form of the issuance of a building permit for lands within the Florida Forever targeted acquisition or Tier I land areas unless, after 60 days from the receipt of a complete application for administrative relief, it has been determined the parcel cannot be purchased for conservation purposes by any county, state or federal agency or any private entity. The county shall routinely notify the Department of Environmental Protection of upcoming administrative relief requests at least six months prior to the deadline for administrative relief.

(e)

Processing and review by Planning Director. Upon the filing of an application for administrative relief, the Planning Director shall prepare a written report with recommendation and forward the report to the BOCC along with all relevant files and records relating to the subject application. The Planning Director shall advertise and schedule a public hearing for consideration of the application by the BOCC.

(f)

Public hearing. At a public hearing, the BOCC may review the relevant application and application evaluation ranking, taking testimony from county staff and others as may be necessary and review documentary evidence submitted by the applicant.

(g)

BOCC action. At the conclusion of the public hearing, the BOCC may take any or a combination of the following actions:

(1)

Offer to purchase the property at fair market value as the preferred action if the property is location within:

a.

A designated Tier I area or within the Florida Forever (or its successor) targeted acquisition areas (unless, after 60 days from the receipt of a complete application for administrative relief, it has been determined no county, state or federal agency or any private entity is willing to offer to purchase the parcel);

b.

A designated Tier II area (Big Pine Key and No Name Key);

c.

A designated Tier III-A area (special protection area); or

d.

A designated Tier III area on a nonwaterfront lot for affordable housing.

(2)

Grant the applicant an allocation award for all or part of the nonresidential floor area requested in the next allocation award as the preferred option for buildable properties not meeting the criteria in subsection (g)(1) of this section.

(3)

Suggest such other relief as may be necessary and appropriate.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Evaluation point values. The following point values established are to be applied cumulatively except where otherwise specified. For all applications entering the Nonresidential Permit Allocation system after July 13, 2016, the following points and criteria shall apply:

(1)

Tier designation. Utilizing the Tier System for land classification, the following points shall be assigned to allocation applications for proposed nonresidential development in a manner that encourages development of infill in predominately developed areas with existing infrastructure, commercial concentrations, and few sensitive environmental features, and discourages development in areas with environmentally sensitive upland habitat, which are targeted for acquisition and the retirement of development rights for resource conservation and protection:

(2)

Wetlands. The following points shall be assigned to allocation applications on Tier III parcels which have sufficient upland to be buildable (min of 2,000 sq. ft. of uplands) but also contain wetlands which require 100 percent open space pursuant to the Monroe County Comprehensive Plan and that are located adjacent or contiguous to Tier I properties.

(3)

Land dedication. The following points shall be assigned to allocation applications to encourage the voluntary dedication of vacant, buildable land within Tier I, Tier II (Big Pine Key and No Name Key), and Tier III-A (Special Protection Areas (SPA)) designated areas and parcels which contain undisturbed wetlands for the purposes of conservation, resource protection, restoration or density reduction and, if located in Tier III outside of Special Protection Areas, for the purpose of providing land for the retirement of development rights or affordable housing where appropriate. Applicants can utilize lands donated pursuant to Policy 101.5.26; however, submerged lands (inundated by water) shall not be eligible for land dedication.

(4)

Special Flood Hazard Area. The following points shall be assigned to allocation applications to discourage development within high risk special flood hazard zones:

(5)

Perseverance Points.

(6)

Highway Access. The following points shall be assigned to allocation applications to encourage connections between commercial uses and reduction of the need for trips and access onto U.S. Highway 1:

(7)

Landscaping, Energy and Water Conservation. The following points shall be assigned to allocation applications on lands designated as Tier III to encourage the planting of native vegetation and promote water conservation and increased energy efficiency:

(8)

Central Wastewater System Availability*. The following points shall be assigned to allocation applications to direct development to areas with central sewer:

(9)

Employee Housing. The following points, up to a maximum of four (4), shall be assigned to allocation applications, which includes new employee housing units:

(10)

Payment to the Land Acquisition Fund. Up to two (2) whole points shall be awarded for a monetary payment by the applicant to the County's land acquisition fund for the purchase of lands for conservation, and retirement of development rights. The monetary value of each point shall be set annually by the County based upon the estimated average fair market value of vacant, privately-owned, buildable IS/URM zoned, platted lots.

(11)

Community Centers. The following points shall be assigned to allocation applications to encourage, nonresidential development within an areas designated as a Community Center in an adopted Livable CommuniKeys Plan.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016; Ord. No. 030-2022, § 2, 11-15-2022)

(a)

An appeal from the decision of the Planning Commission on an NROGO allocation shall be made to the BOCC. The notice of such appeal shall be in a form prescribed by the Planning Director and must be filed with the Planning Director within 20 working days of the Planning Commission's decision. Upon the filing of an appeal, the Planning Commission's secretary will forward to the board all relevant files and records relating to the matter. Failure to file an appeal with the BOCC shall constitute a waiver of any rights under this chapter to further dispute the decision of the Planning Commission.

(b)

The filing of an appeal shall not stay either the action of the Planning Commission or the action of the director of planning.

(c)

If, as a result of a successful appeal, additional allocation awards are to be made, the BOCC shall instruct the Planning Director as to how many nonresidential floor space applications shall receive allocation awards, when such allocation awards are to be made and what effect such additional allocation awards will have on the current annual allocation for nonresidential floor area. To ensure that the allocations set forth in Section 138-51 are not exceeded, the Planning Director shall inform the Planning Commission of the results of the appeal and the disposition of any additional allocation awards.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)