A draft of a bill that could provide up to 8,000 new building allocations to the Florida Keys, written by Marathon City Manager George Garrett and submitted to state Rep. Jim Mooney, seems to have accomplished its goal of “starting the conversation” on future development in the Keys – but not without drawing the ire of some officials and residents throughout the island chain.
The resolutions
At its Jan. 9 meeting, the Marathon City Council passed resolution 2024-01 on consent, intended to outline the city’s stance on changes of statutes governing mandatory hurricane evacuation times in the Florida Keys Area of Critical State Concern – and the resulting building allocations that could be bestowed on the island chain, should that mandatory clearance time increase. The resolution includes the city’s support for adding the Keys’ mobile homes to Phase 1 of hurricane evacuations (48 hours in advance of a storm) and Key West residents not living in mobile homes to Phase 2 (24 hours).
At the council’s Dec. 12, 2023 session, City Attorney Steve Williams advised the council to pursue as many additional allocations as possible from the state to use in the Building Permit Allocation System as a defense against takings cases from property owners of vacant but otherwise buildable lots.
Recent estimates from Marathon city staff indicate that the city has 1,026 vacant lots, including 556 buildable lots and 215 waterfront properties. The city’s final BPAS allocations will expire in July 2024, but it currently holds applications for 81 market rate and 40 affordable allocations, 48 of which have reached a point that they could request to use the city’s 12 remaining Administrative Relief allocations.
“When the day ever comes that you don’t have a (BPAS) permit to give out, you can go on the record and say, ‘Dear state of Florida, please defend this, because we asked for all the units we could and you said no to us,’” he said.
However, Resolution 2024-01 contains only general provisions seeking a remedy for potential takings cases, simply urging the Legislature to “collectively and collaboratively work with Monroe County and other municipalities this year and during this Legislative Session to develop a Legislative solution to the continuation of BPAS (ROGO) and the cessation of the ‘takings’ dilemma.”
As predicted by Williams in December, Marathon’s third provision contrasts a portion of a resolution passed Dec. 13 by the Monroe County Board of County Commissioners. While supportive of the same Key West and mobile home provisions in hurricane evacuation changes, the county resolution instead asks the legislature to “hold off on any further related actions until the public has time to consider the related issues and make thoughtful recommendations.”
Monroe County Mayor Holly Raschein repeated that the county was not “under the gun,” stressing the need for greater collaboration among municipalities, and further analysis of environmental and infrastructure concerns as well as total liabilities, before pursuing a legislative goal in the 2025 state session. Commissioner Craig Cates said he hoped to take the question of additional allocations to a voter referendum, whether binding or not, in the November 2024 election.
Addressing the county commission in December, Williams said Marathon would seek “as many units as necessary to cover our takings exposure,” but would not seek to receive all the units immediately, stretching a distribution over a period of up to 50 years. Acknowledging the need to “go to Tallahassee with one voice,” Williams added that “(Marathon) run(s) out (of units) in 2024. … Our takings cases ripen before yours do.”
“We definitely need to move forward,” Garrett added in the same meeting. “We’ve been just talking about it. We need to get together and talk about this, but the imperative is there, from our perspective.”
The addition
Though Resolution 2024-01 did not contain specifics of a desired “fix” for Marathon’s takings liability, those concerns were addressed in draft bill language sent by Garrett to Mooney, County Administrator Roman Gastesi and County Attorney Bob Shillinger in the days following the Jan. 9 meeting.
The draft proposed modifications to Florida state statute 380.0552(9)(a) and section 28-36.004(3) of the Florida Administrative code, which govern the Florida Keys and Key West Areas of Critical State Concern (ACSCs), respectively. Among other items, the amendments propose a move from 24 to 31 hours for hurricane evacuation clearance times, along with a distribution of 8,000 residential allocations across both ACSCs, to be split among jurisdictions based on the numbers of vacant lots within each.
The draft proposes a 30-year distribution of the units, additionally limited by adopted Level of Service standards within each jurisdiction, but includes a critical distinction that “any individual jurisdiction may borrow residential allocations forward from future years if those allocations will be utilized for affordable housing development.” It’s unclear why the provision was included in an amendment otherwise aimed at defending takings cases from single buildable lots.
While early reports stated that both the resolution and draft bill language were sent as a request to Tallahassee, multiple Marathon officials confirmed to the Weekly that only the approved resolution was transmitted to the state.
The reaction
Speaking with the Weekly by phone, Garrett said that while the draft language was not part of the approved Jan. 9 resolution, it had been reviewed with each council member individually prior to the meeting as the “start of essential dialogue” on the issue of building allocations and takings liability. While he said he understood the 8,000-allocation request could raise eyebrows, in order for Marathon to receive its necessary units, a distribution would need to include all jurisdictions governed by the pertinent statute.
Asked directly if Marathon would pursue the opportunity to add the draft language to an existing bill during the 2024 state legislative session, Garrett said, “I don’t think that’s going to happen this year. … (But) if somebody jumped up and said ‘we want to do this,’ I think we would work with them, but not to the exclusion of the county and the other municipalities.”
All five Marathon council members confirmed to the Weekly that they had seen the draft prior to the Jan. 9 meeting, with four adding that they viewed the language as an extension of the direction the council previously had provided to Garrett.
However, in a phone interview, councilman Kenny Matlock said that while he was briefly shown the draft, he was not allowed to leave from his meeting with Garrett with a copy of it, adding he felt “deliberately misled” about the city’s intent to request a specific number of units or hurricane evacuation time change. He said he would have pulled the Jan. 9 resolution from the consent agenda for discussion if he had known a specific request for additional allocations would be sent to state legislators.
Mooney said by phone that although he was initially shocked by the request, he had since discussed the draft with Garrett.
“I think George thought, let’s just get the ball rolling. But this isn’t a decision that one person is going to make,” Mooney said. “I think in hindsight he realized he probably should have reached out to everybody first, instead of just sending off their priorities.”
Mooney added that he didn’t agree with the “fear factor” of takings liabilities, saying that such cases were “not a slam dunk – they’re a full-court, three-point try.” He said the “borrow forward” provision in the draft was concerning as well.
“Here’s the problem: If I’m a developer and I come to you and say that I’m going to build 100 affordable units, I’m not going to build those on 100 lots,” he said. “That still leaves me with a whole bunch of vacant lots that aren’t going to get permits somewhere down the line. It could be next year or 30 years, but I’ll be back to the same scenario as I was before.”
County Commissioner Michelle Lincoln, who had in December suggested that Marathon stretch its remaining administrative relief allocations to cover the city’s liability until 2025, reiterated the need for extensive discussions among leaders and officials in different jurisdictions and conversations with residents before pursuing a specific evacuation change and allocation request.
“We’re still crunching our numbers,” she said. “I thought, if anything, (Marathon) might have asked for a few (allocations) to get through if they were afraid of having a takings case.”
Nearly a dozen Keys officials interviewed by the Weekly floated mounting developer pressure and the impending 2024 election as factors influencing municipalities’ willingness to pursue additional allocations in 2024 versus 2025.
The Marathon City Council is set to further discuss its stance on allocations and evacuation times at its workshop on Monday, Jan. 22 at Marathon City Hall. The workshop is set for 5:30 p.m.
But regardless of stances and methodology, as put by Marathon Vice Mayor Lynn Landry, the draft “did exactly what it was supposed to do. It has everybody talking about this.”
