DEO. DCA. MOU. ROGO. DOAH. LDR.
Lost track of the acronyms? You’re not alone.
The City of Marathon remains embroiled in litigation surrounding building allocations recognized, received, transferred and awarded by the city in multiple market-rate and affordable developments. With a number of separate, yet at some points related, ongoing cases, Keys Weekly sat down with city attorney Steve Williams, planning director Brian Shea and city manager George Garrett to provide our residents with an update on these ongoing cases. Here’s what we learned:
Boatworks Case in Holding Pattern
Developers and homeowners alike were shocked when the Florida Department of Economic Opportunity (DEO) in February revoked a long-standing Memorandum of Understanding (MOU) between the city and state. Previously, Marathon was allowed to review minor building permits independently instead of rendering them to the state for review as part of Marathon’s designation as an Area of Critical State Concern (ACSC). The revoked MOU resulted in all permits being rendered to the state, exponentially increasing wait times for projects as small as installing pavers and fences.
The revoked MOU and a related Notice of Violation stem from a resolution unanimously approved by the Marathon City Council in January 2022. As part of the colloquially-named “Boatworks Project” at the end of 39th Street Ocean, a limited number of the 32 live-aboard dwelling units recognized at the property were allowed to be re-developed as land-based market rate units at the same location, as long as the corresponding live-aboards were subsequently removed. The development decision was appealed by DEO, but in the course of the appeal process, Marathon granted building permits to market rate units within the development whose building rights were not related to the live-aboard units in question.
A new MOU that took effect on May 11 returned the city’s ability to approve some – but not all – of the permits it previously handled independently, and the question of “Can boats become homes?” became the subject of a final two-day hearing with Judge Todd P. Resavage of the Florida Department of Administrative Hearings on July 13 and 14. The outcome of the hearing could set a highly significant precedent for development in Marathon as it helps to determine the possibilities for live-aboard vessels recognized as dwelling units when Marathon adopted its 2005 comprehensive plan and 2007 land development regulations (LDRs).
Both sides submitted proposed final orders detailing their desired outcome on Sept. 9. As of Sept. 27, the city awaits a final order handed down from Resavage, required within 60 days (Nov. 8).
300 ROGO Units Case Dives Into Muddy Waters – And Has Major Implications
Though Marathon and DEO may be opponents in the Boatworks cases, the two find themselves on the same side of the fence as they attempt to combat a stunning decision from Florida’s Third District Court of Appeals (DCA). Handed down on Aug. 3, the opinion reverses 600 affordable workforce housing allocations, given to the City of Marathon and Village of Islamorada in 2018 and subsequently appealed by three Keys residents in Key West, Marathon and Islamorada.
In the eventually successful appeal, the attorney for the appellants, Richard Grosso, argued that 300 affordable units given to the city by DEO on the order of then-Gov. Rick Scott violated the statutes governing Marathon as an ACSC. Tagged as “early evacuation units” whose residents must leave sooner than full-time residents in site-built homes in the event of an evacuation, the DCA opinion ruled that comprehensive plan amendments in Marathon required to accept the bestowed units did not “maintain a hurricane evacuation clearance time for permanent residents of no more than 24 hours.”
The catch: DEO and Marathon are now on the receiving end of DCA’s denial, as the units were handed down by DEO itself and originally upheld by a subsequent hearing with DOAH in December 2019.
The decision could also have an unknown ripple effect for development in Marathon, as since 2013 the city has relied on a multi-day phased evacuation plan, one that requires early departure for groups of individuals many would classify as “permanent residents”: those residing in mobile homes and live-aboard vessels, nursing home residents, and members of the military, among others.
Of the units awarded by Marathon, about 73 are attached to finished projects or repurposed housing believed to be currently occupied. With multiple developers in various stages of construction based on the previously awarded units, the Marathon City Council has already faced debate about how to fairly assist the individuals and businesses affected by the decision.
Though there are several avenues still to be explored in an attempt to remedy the reversal, there is a possibility of severe consequences for housing already constructed on the basis of the awarded units. In 2001, Grosso successfully argued that a $3.3-million luxury apartment complex violated the comprehensive plan for Martin County, Florida and must be demolished.
Following the shocking Aug. 3 opinion, the city filed a motion to have the case re-heard by all nine DCA judges. In an 8-1 vote, with judge Edwin Scales as the lone supporter of Marathon’s motion, the request was denied on Sept. 20.
The next step for the case would be an escalated appeal to the Florida Supreme Court, a decision likely on the agenda for Marathon’s Oct. 11 city council meeting. However, Williams said the odds of success at the Supreme Court level in light of the DCA’s denial are slim, and a more likely avenue of relief could fall on the 2023 session of the Florida legislature.
Changing the statute mandating a 24-hour evacuation of the Keys to 36 hours or more would alleviate Marathon’s violation confirmed in the DCA’s decision. But with a new Regional Evacuation Transportation Analysis – commonly called “the evacuation model” on the way in the coming days or weeks – the exact change required is yet to be determined.
If a legislative fix is unsuccessful, the city may explore the possibility of swapping some of its 300 units with Key West. As its own ACSC separate from Marathon, the principles in the Florida Administrative Code regulating Key West’s evacuations provide only for a plan that “provides an opportunity for residents and visitors to evacuate to a place of safety during a natural disaster.”
The distinction was enough to provide a win for Key West and allow the southernmost city to keep its 300 units from 2018 in the very same case that challenged Marathon’s units. The simple translation: send the “tainted” units with an early evacuation requirement to a place that can legally use them, in a trade for “clean” units to use in Marathon. Although it’s a possibility, it’s one Williams described as a last resort should a legislative fix prove unattainable.
