LAW FOR SALE

Issue 62 Rohe Cartoon Wolf Dreding

There it was, a 100’ long wooden dock, all ready for the sport fishing boats belonging to the owners of the eight new mansions nestled between the palm trees and the tropical flowers. The only problem was, no boats could get to the dock!  There was simply not enough water covering the seagrass bed surrounding Walker’s Island and the necessary dredging operation was strictly prohibited by the Monroe County code.

So, was that the end of it?  Well, not quite.  Beginning in 2010 savvy developers and their lawyers discovered a little-known loophole; a way around Monroe County’s tight environmental regulations. For a $ 5,000 application fee, a developer can write his own version of the law and, after proper lobbying, force the County Commission to vote on whether to reject or adopt his “Comprehensive Plan Text Amendment.”

Several County Commission members, including Commissioner Danny Kolhage and Mayor Sylvia Murphy, have expressed concern over the process and the amount of time expended by County staff on these private legislation projects.

“I was horrified,” said Mayor Murphy, “ when I heard staff had spent two years working on the Walker’s Island dredging project without the public or the Commission knowing anything about it.”

The practice reached a high level of criticism four years ago when Roger Bernstein first used the new process to try to design a special law applicable only to Wisteria Island.  The development of Wisteria Island was initially disguised as a project meant to furnish bathrooms and other amenities for a mooring field:

and the mooring field itself was described as a generous offer by Roger Bernstein to help Monroe County tackle its derelict vessel problem:
In exchange for the rights to the deep water baybottom between Sunset Key and Wisteria Island, Bernstein would donate an area of flats called Frankford Bank to the State, build a mooring field around Wisteria Island and use the newly acquired baybottom rights to pass sewer, electricity, and water from Sunset Key to Wisteria Island in order to operate the mooring field bathrooms. Oh, and of course, one more little detail, in order to operate the mooring field, the island designation would have to switch from the standard Residential Conservation designation for offshore islands [allowing 1 house for every 10 acres] to “Mixed-Use Commercial”. [ie. Everything Goes]

Initially, Monroe County staff fell for it.  “I want the mooring field,” said Monroe County Growth Management Director Christine Hurley at the time.  But, to no one’s great surprise, once the whole mooring field project was clearly decoded, it hid an 85-unit hotel complex, 35 luxury single-family homes, a restaurant, a retail store, and an exclusive marina big enough for a casino boat.  The farce created a huge backlash from the public.

Similarly, the Walker’s Island project was initially presented by its owners as a “seagrass restoration project”.  That was the code name for an extensive dredging project.  That misrepresentation resulted in only three people showing up at a community meeting organized by Sandra Walters, the PR consultant for the Walker’s Island project.  One of the attendees was County Mayor Sylvia Murphy. “What did you expect, Sandra,” said Murphy, “You advertized your meeting as a seagrass restoration project, not a dredging project. You’re playing with people, you’re playing with words and that’s not fair.”

However, here again the Monroe County staff supported the amendment to the comprehensive plan even though the Commission later unanimously rejected the Walker’s Island dredging amendment. Danny Kolhage commended staff for their hard work “making this as palatable as possible” but also voted to reject the dredging amendment.

So, why did staff support a concept as unpopular as allowing dredging of seagrass meadows in the Keys?  Kolhage explained it a few months later, saying there is a culture in county government that promotes customer satisfaction.  We should certainly be thankful for a positive attitude, however many complain that the process for private text amendments is completely unbalanced and can not possibly result in fair legislation.

“By the time we heard about what was going on,” says Dottie Moses, who opposed the dredging project on Walker’s Island on behalf of the Key Largo Federation of Home Owners, “the developers and Monroe County staff had already been working on this for a full two years and nobody, not even the Commission, knew about it.  It took us five months just to get up to speed.” Moses says she spent countless hours conducting research to address the many misconceptions created by the developers.  She even cancelled a personal trip just so she could have her five minutes to explain her findings during the County Commission meeting.

During the negotiations about dredging an access channel to this 100’ dock, County staff was unable to determine whether the dock had even been built with a proper permit. The developer’s agent assured the Commission the dock was legal by flashing a document in front of the Commissioners just minutes before the vote.   In fact, not only was the document shown to the Commission not a permit, but it did not even mention a dock. It apparently referred to a permit for “holding pens” and it was later determined the dock on Walker’s Island had been found to be unlawful in 1973 by the Florida Department of Pollution Control.

“That is the part that is so crazy,” says Deb Curlee, Vice President of Last Stand, “How could we expect that developers, who have so much to gain financially in deregulating land use, would be good stewards of the public interest?  And yet, the County Commission has to listen to them and their lawyers for as long as it takes; saying just about anything to win the day and if the truth is on the side of a public speaker, he or she has only three minutes to dispel any delusions.”

County Mayor Sylvia Murphy is in favor of some practical solutions:

1] Favor Variances Over Text Amendments:

“I am not a lawyer and I am not a professional planner,” says Mayor Murphy, “but it seems to me that what we are doing with those individual text amendments is spot zoning.  We don’t want to call it that because spot zoning has such a bad connotation.  Maybe the proper way to address these issues is through a variance process.  I would like to go with a method that provides the most protection to the neighbors and that seems to be the variance system which gives the neighbors the strongest right to object.”

2] Bifurcating the Creation of County-Wide Text Amendments and the Specifics of a Particular Project.

Mayor Murphy believes there should be two distinct processes; one for a change in law that applies to everyone in the County and another to address whether one property owner qualifies under the new law.

Commissioner Heather Caruthers agreed with that concept during the Walker’s Island discussion.  After all Commissioners had taken positions against relaxing the dredging prohibitions, Caruthers noted,  “I would actually want to bifurcate this resolution and not even consider at this point the specific subarea for Walker’s Island…”:

3] Immediate Public Notice and Initial Head-Nod By the County Commission:

“As was the case with Wisteria Island, when we asked whether the $ 5,000 application fee actually covered the County’s costs in the Walker’s Island project, we received a resounding ‘no’ from staff.”

“If we continue to accept these private applications for text amendments, we need to have immediate public notice and if staff gets a request for a text amendment and it looks like they’re going to spend more than 10 hours or so in a two-week period on it, then they should not touch it without first coming to the Commission and getting a go-ahead. Why go to all that trouble if neither the public nor the Commission are interested in doing it? I’d like to see that requirement codified.”

Christine Hurley, Monroe County’s Growth Management Director, has said the right of a property owner to apply for a Comprehensive Plan text amendment is protected by the Growth Management Act [Florida Statute 163].  However, the statute, which does not specifically mention applications for “text amendments”, arguably, was intended merely to allow property owners to challenge incorrect zoning of their property, which would indeed, if successful, require an amendment to the detailed zoning maps that are a part of the overall Comprehensive Plan.

Julie Dick, an attorney working with the environmental watchdog group Last Stand, wrote in a recent letter submitted to the Commission, “we believe in requiring a recommendation of the Planning Commission and Board of County Commissioners to initiate a text amendment.”

In Monroe County even an elected County Commissioner needs a  ‘second’ to force a vote of the Commission and the public at large doesn’t even have a right to put a referendum on the ballot, no matter how many signatures they are able to gather. So why should one man, with enough money to spend, have the right to force the County Commission to vote on whatever new law suits him?

This whole thing certainly doesn’t feel like the “equal protection of the law” guaranteed by the Constitution.  It does however have a strangely backwards flavor from the time when, by the grace of the King, aristocrats would receive special privileges, like the right to remain seated in the Queen’s presence or the right to sell pork on Fridays.

The County Commission will debate the issue on May 22, 2014 at the Marathon Government Center during a special Comprehensive Plan Update meeting, which begins at 10:00 am.