A stunning court opinion in an ongoing appeal of 1,300 Keys housing units may send shockwaves through the affordable housing landscape in the Keys. But the severity of the damage all depends on the mile marker.
Handed down on Aug. 3 by Florida’s Third District Court of Appeal (DCA), the opinion looks to reverse 600 affordable workforce housing allocations given to the City of Marathon and Village of Islamorada in 2018, but protects allocations awarded to Key West that same year.
Shortly following Hurricane Irma, then-Gov. Rick Scott attempted to remedy an exacerbated workforce housing shortage by ordering the state Department of Economic Opportunity (DEO) to hand down a total of 1,300 new building allocations to the Florida Keys. Designated for affordable workforce housing, the units were split roughly evenly among Key West, Marathon, Islamorada and unincorporated Monroe County.
Comprehensive plan amendments in the corresponding municipalities to allow for safe evacuations in the event of a hurricane added a stipulation that residents in the newly-awarded units are required to evacuate during the first of two hurricane evacuation phases. As currently written, Phase 1 runs from 48 to 24 hours before the Keys are to be fully vacated and is the designated evacuation window for non-residents, visitors, travel trailers, mobile home residents and a number of other smaller designated groups. Phase 2 follows with a second 24-hour evacuation period for permanent Keys residents in site-built homes.
An appeal filed by three Keys residents in 2018 – Cecilia Mattino in Marathon, Catherine Bosworth in Islamorada and Naja Girard in Key West – argued that adding the residents of the new units to the Phase 1 group was a violation of Florida Statute 380.0552(9)(a)2. Outlining restrictions in place in the Keys as an Area of Critical State Concern, the statute reads that amendments to a city’s comprehensive plan must “maintain a hurricane evacuation clearance time for permanent residents of no more than 24 hours.”
An administrative law judge from the Department of Administrative Hearings (DOAH) conducted a final hearing on the appeal in December 2019. A final order issued by DEO adopted this judge’s recommendation and ruled that the appealed comprehensive plan amendments did not violate the Florida statutes in question, as residents would still be safely evacuated in multiple 24-hour periods to avoid congestion on Overseas Highway. However, another appeal of this decision escalated the case, culminating in the Aug. 3 opinion from the DCA.
“We reverse the final order as to the cities of Marathon and Islamorada because their Comprehensive Plan Amendments violate section 380.0552(9)(a)2, Florida Statutes (2020),” the opinion’s conclusion reads. “We affirm the final order in all other respects, and affirm en toto as to the City of Key West.”
“We are keenly aware of the well-intended objectives and meritorious goals embodied within the Comprehensive Plan Amendments of Marathon and Islamorada,” reads an earlier paragraph in the same opinion. “We further acknowledge the substantial challenge those cities face in attempting to balance the competing interests at stake. Nevertheless, we ‘do not have the authority to ignore plain and unambiguous language under the guise of interpretation.’”
A WIN (SO FAR) FOR KEY WEST
Both Marathon and Islamorada are included in the Florida Keys Area of Critical State Concern, established in 1974 and governed by the heavily debated statutes previously mentioned. However, in 1984 the City of Key West was designated as its own Area of Critical State Concern and as such is not subject to the same statutes. Instead, the Southernmost City is governed by the Principles for Guiding Development in the Florida Administrative Code, which simply provide for “An evacuation plan consistent with regional and County plans…which provides an opportunity for residents and visitors to evacuate to a place of safety during a natural disaster.”
“This is a tremendous victory for affordable housing in the city of Key West,” wrote city attorney Shawn Smith of the Aug. 3 opinion in an email to Keys Weekly.
MARATHON TO FACE THE TOUGHEST BATTLE
Despite ongoing appeals, Marathon has already awarded all of its 300 allocations within the past four years. While some of the allocations went toward new construction – take, for instance, the 124 units awarded to the Seaview Commons developments off of Coco Plum Drive – others were used to reclassify smaller inns and motels as affordable housing while transient units were transferred off those properties and sent, in nearly all cases, to the upcoming Valhalla Resort on Crawl Key.
According to Marathon planning director Brian Shea, at the moment, 73 of the awarded allocations are attached to finished projects or repurposed housing believed to be currently occupied: 52 units in a development at 700 39th Street Gulf, 12 units at the former Ranch House Motel property at 7251 Overseas Highway, and nine units at the former Flamingo Inn on Grassy Key.
“There is not much I advise we do about (those units), because they are there, they are living, and we will deal with that at the appropriate time,” said Marathon city attorney Steve Williams as he addressed the Marathon City Council on Aug. 9. “What we’re going to get is tremendous pressure from many different directions to approve these (other) units while this court case is still pending.”
Referencing a 2001 decision in which the appellants’ attorney in this case, Richard Grosso, successfully argued that a $3.3-million luxury apartment complex violated the comprehensive plan for Martin County, Florida and must be demolished, Williams said that he would “inherently … treat this conservatively” by pausing ongoing permitting at the affected sites with the stated intent of the DCA in the city’s possession.
“There is no 100% bulletproof answer. We’re danged if we give (the permits) and danged if we don’t,” he continued. “We face potential liability from either side. … But I’ve got three judges in Miami who say ‘don’t.’ And I’m inclined not to attempt to anger those judges.”
Representing Smith Hawks, PL, the independent firm contracted by the city during the appeal proceedings, attorney Chris Deem urged the city council to continue processing permits as normal until the opinion is finalized.
“What often happens is, if you change what you’re doing right now based upon something that is not final … you can have financing issues that fall through,” he said. “And if this opinion does change, then those individuals will come after the city of Marathon. … I think the downside liability is greater if you do not process permits as normal.”
Deem suggested that in this case, permit applicants with work in progress on the units in question should be notified of the existing DCA opinion.
A closed executive session with Williams, Deem and attorney Bart Smith of Smith Hawks, city manager George Garrett and the members of the Marathon City Council is set for Tuesday, Aug. 16 at 11 a.m. to determine the city’s next steps. City staff was instructed to pause permitting activity on the affected units until the conclusion of the session.
Though the Village of Islamorada accepted its 300 units in 2018, the allocations were never doled out.
“Legal counsel told us we better not and we didn’t,” Mayor Pete Bacheler said.
Islamorada officials are set to meet on Monday, Aug. 15 at 2 p.m. to discuss ongoing litigation in the case. Village council members and Village Manager Ted Yates will enter executive session with interim attorney John Quick as well as Smith and Deem. A public comment period will commence at 1 p.m.
Though the Aug. 3 opinion is significant, it is not yet final. Grosso and the appellants have already filed a motion for a rehearing of the case, continuing their challenge of Key West’s allocations. Closed executive sessions in Marathon and Islamorada will likely iron out the details of additional motions for rehearing, required within 15 days of the opinion. Alterations to the statutes governing Marathon and Islamorada’s comprehensive plan changes are possible, but would need to be enacted through the Florida state legislature, likely in the 2023 legislative session or beyond.
“We’ll probably try to take it as far as we can, and we’ll probably seek some other lawful changes,” said Williams.
While the recent opinion states that Marathon’s 300 units are unlawful, it does not outline any required course of action for allocations already constructed and occupied by residents.
Jim McCarthy and Mandy Miles contributed to this report.