I don’t know where to begin. I read with incredulity last week’s opinion piece by Mr. Kevin Diaz regarding the Florida Keys Stewardship Act (FKSA). It’s hard for me to comprehend how someone seeking to represent the citizens of Monroe County could so totally misunderstand what the Keys are about and it worries me that he could so totally misread this significant legislation. He has egregiously mischaracterized the Stewardship bill.
Let's start by explaining that there are some unique realities of land management and development in the Keys. We are a designated Area of Critical State Concern. We have limited land. We have one road in and out. We must be able to evacuate our residents within 24 hours. We are home to an exquisite and sensitive environment and at least 32 endangered species. As a result of all these factors, we have limited new development potential which is regulated through our Rate Of Growth Ordinance (ROGO), and that potential dries up completely in 2023. For the next 8 years, we will be able to give out 3,550 building permits throughout the County including municipalities. There are 11,364 undeveloped parcels in the Keys. It has been a goal of this County commission to retire development rights whenever possible and limit the potential takings liability that would be borne by taxpayers, as well as protect our environment and quality of life.
So the contention that the FKSA was crafted to buy, then sell off, environmentally sensitive land is nonsense. The County and State and to a lesser extent the federal government have invested considerable sums in purchasing land for conservation over the last few decades, with the result that approximately 76% of the land in the unincorporated County is conservation land and protected from future development. In recent years, the State’s acquisition efforts have weakened as Florida Forever funding dwindled. With the passage of FKSA, we now have a steady $5M carve-out of Florida Forever funding for land acquisition, a reflection of the State’s recognition of the value of conservation in the Florida Keys.
Mr. Diaz's "analysis" itself is fundamentally and structurally unsound from a pedagogic perspective. It is clear that he did not distinguish between the language in the actual bill and the staff analysis of the bill, which by its nature provides thorough background and addresses a broad range of issues. He seems unable to distinguish between this bill (the Stewardship Act) and a long list of prior legislation crafted without any inkling that the FKSA might ever exist. And finally, the "analysis" is in a vacuum, without any understanding of the County's Comprehensive Plan, environmental and planning framework and strict existing development constraints.
Before going into a point-by-point discussion of Mr. Diaz's article, let me clarify some basic facts. First, because of ROGO, there is limited new development potential in the Keys. The land acquisition portion of the FKSA was designed to retire development rights on those parcels that may be unsuccessful when competing for a building permit. Second, most of those parcels are considered Tier 1, the most environmentally sensitive, and are prohibited from being developed for affordable housing. Third, the Land Authority has two distinct goals: to purchase land for conservation or land for affordable housing. They are not the same lands. Fourth, the 160% of median income threshold referenced in Mr. Diaz's opinion piece is a state-created cap, one of four categories of income in the affordable housing realm. Private developers utilizing federal tax credits are constrained to the lower levels of income (60% to 120%), government-run housing focuses on the lowest level, and not-for-profit partners don't exceed 120%.
Now for specifics. In an attempt to unravel the misinformation and confusion of Mr. Diaz’s assertions, we have broken them down and addressed them individually. In order for you to judge for yourself the credibility of Mr. Diaz’s assertions, you may want to read the bill, complete with line by line references, which can be found at: https://www.flsenate.gov/Session/Bill/2016/0447/BillText/er/PDF. You may also want to read the final staff analysis which can be found at: http://www.flsenate.gov/Session/Bill/ 2016/0447/Analyses/h0447z1.ANRS.PDF.
Diaz: The Act essentially allows housing developers to build on environmentally critical land in our community.
•False. The author somehow mistakes clear language in the FKSA which only authorizes the disposal of land under certain limited conditions as authorization to allow developers to build housing on environmentally critical land. Judge for yourself whether the language spelled out in lines 230 to 242 in the Act supports the author’s assertion. It reads:
§ (7) If the South Florida Water Management District and the Department of Environmental Protection determine that lands purchased using bond proceeds within the Florida Keys Area of Critical State Concern, the City of Key West Area of Critical State Concern, or outside the Florida Keys Area of Critical State Concern but which were purchased to preserve and protect the potable water supply to the Florida Keys, are no longer needed for the purpose for which they were purchased, the entity owning the lands may dispose of them. However, before the lands can be disposed of, each general purpose local government within the boundaries of which a portion of the land lies must agree to the disposal of lands within its boundaries and must be offered the first right to purchase those lands.
How does language authorizing a state agency to dispose of lands “no longer needed for the purpose for which they were purchased” and which requires the local government where the land is located to not only decline to exercise its right to purchase that land but also to explicitly approve of that sale equate to allowing housing developers to build on “environmentally critical land”? In short, it doesn’t because if the environmentally sensitive land was purchased for conservation, then it still retains that purpose as long as it is undeveloped. The author’s conclusion makes even less sense when one considers the fact that under current law, the State will not authorize enough ROGO allocations to allow development on all privately held lots. It would make absolutely no sense for the State to exacerbate the ROGO deficit problem by returning these lots to private ownership for development when there are not nearly enough ROGO allocations to build on all currently held private lots.
Diaz: The Act essentially allows housing developers to build on environmentally critical land in our community. To top it off, it labels affordable housing as 160% of the median household income for Monroe County.
•False. The author fails to mention that the Legislature adopted the “160% of median family income” language in 2006, a full DECADE before the FKSA. See, ch 2006-223, Laws of Florida. Look on page 5 of that Act for the 160% language, which can be found online at: http:// laws.flrules.org/files/Ch_2006-223.pdf. In order for the author’s theory to make sense, the 2006 Legislature would have had to have the ability to look 10 years into the future to foresee the language that the 2016 Legislature would adopt. Further, this 160% is a ceiling. In this County,we build for affordable housing at four different income thresholds with the floor being 60% and the ceiling being 160%.
Diaz: That means we’re selling environmentally sensitive land so developers can make a profit, not so members of our community can afford to live in Monroe County.
•False. See above. If the land is environmentally sensitive, it fails to meet the test for disposal in that it still serves the purpose for which it was acquired. Additionally, environmentally sensitive lands, which are classified as Tier I under the County’s Comprehensive Plan, are ineligible for the placement of affordable housing. See, Policy 101.3.3. Environmentally sensitive submerged lands, salt ponds, freshwater ponds, and mangroves are further protected from development under Policy 101.5.25 of the Comprehensive Plan.
Diaz: It took many hours of reading Florida Statutes cited within the footnotes of the bill, as well as reviewing the initial proposed Act and all subsequent amendments, in order to uncover this very clever maneuver. In the interest of not putting everyone to sleep, I have inserted the statuary [sic] language within the footnotes.
•False. First, the word is “statutory” not “statuary”. Second, because the language set forth in the author’s third footnote does not appear in the statute, but rather in the staff analysis, it appears that the author does not understand the difference between the staff analysis of a bill and the actual bill itself. The actual bill contains a grand total of zero footnotes.
Diaz: First, within the Act it states that an additional 3,550 residential units may be constructed. Having this provision within an environmental protection bill seems strange.
•False. The bill contains no such language. However, the staff analysis of the bill does make reference to 3,550 residential building allocations on page 4. These are not "additional" units created by the Act. That is a reference to the number of new ROGO allocations set by the State of Florida after the 6 local governments in the Keys entered into a Memorandum of Understanding with the State regarding hurricane evacuation issues in 2012. The MOU and the 3,550 cap on new units predates the FK Stewardship Act by four years. And what Mr. Diaz does not seem to understand, is that there are over 11,000 privately held, undeveloped lots in the Keys. Perhaps if he did the math he would realize that the FKSA will increase our ability to purchase some of the over 7,000 parcels prohibited from development by that MOU, retire the development rights and limit our takings liabilities and taxpayer burden.
Diaz: Why would we be allowing the opportunity for the addition of residential living units on top of environmentally critical land in a water quality bill?
•The author apparently does not understand that the statutory mission of the Monroe County Land Authority is to carry out the purchase of land to meet two critical and distinct needs: conservation and affordable housing. The Land Authority purchases environmentally sensitive lands for conservation and purchases other completely separate lands suitable for development for affordable housing purposes. These are not the same lands. Land purchased for its environmental value is set aside and preserved in perpetuity and specifically intended to retire all development rights on that land. Non-environmentally sensitive land is purchased for affordable housing purposes. This is obvious to anyone with even the vaguest familiarity with the Land Authority’s role and history, or anyone willing to take 15 minutes to research it. The FKSA contains language that will enhance the ability of the Land Authority to acquire land to fulfill its dual mission.
• The bill is more than just a water quality bill. In fact, the term “water quality” appears in only 5 places among the 16 pages/414 lines of text. The bill is a multi-faceted approach to addressing various needs arising from the State’s designation of the Florida Keys as an Area of Critical State Concern. The Act touches upon topics such as funding sources for acquiring conservation land and satisfying property rights claims, and correcting an oversight that prohibited use of certain state monies within the City of Key West.
Diaz: Second, within the subsection labeled Everglades Restoration Bonds, it cites to Footnote 74, Florida Statute 253.034, which labels Capital Facilities and infrastructure improvement as some of the legislative goals of the Everglades Restoration Bonds. What does “Capital Facilities and Infrastructure” mean? Within the surtaxes section of the Act, it labels affordable housing as infrastructure. How can affordable housing be an infrastructure need included in this bill, when the purpose of the Act was to receive capital in order to further treat our water concerns and better protect our environmentally sensitive land?
• False. Again, the bill contains no footnotes whatsoever. Instead it appears that the author is confusing the staff analysis with the actual legislation. Footnote 74 to the staff analysis document reads: “Generally, procedures for the surplus of lands do not require local governments to agree prior to surplus. See ss. 253.111, 215.619, and 253.034, F.S.” That footnote follows the sentence: “However, before the lands can be disposed of, each local government within whose boundaries a portion of the land lies must agree to the disposal of lands within its boundaries and must be offered the first right to purchase.”
• The author is apparently referring to lines 230-242 of the FKSA. On those lines, the bill imposes an additional requirement of local government approval before State agencies can dispose of land that was acquired for conservation purposes. That new statutory requirement can be found at F.S. 215.619(7). Because of this language, for the first time ever, local governments have not only a right of first refusal but also veto power over a state agency's decision to surplus property that have been purchased for conservation purposes with relevant funds.
• Author fails to grasp the comprehensive nature of the bill. In addition to improving water quality and protecting environmentally sensitive lands, the bill also provides tools for addressing private property rights claims arising because of the growth management, environmental protection and water quality regulations that have been imposed on the Keys by the State through the Area of Critical State Concern program.
• In other words, the FKSA is intended to provide greater restrictions to the use of state-acquired land, with enforcement through local oversight. Compound this with the realization that lands purchased for conservation tend to be Tier 1 lands and that the State and the BOCC are seeking to retire development rights and lessen any potential takings liabilities, and again, the absurdity of Mr. Diaz’s so-called analysis is clear.
Diaz: Third, the Act creates a mechanism to sell environmentally critical land.
• False. The contention is nonsense. As set forth above, the Act creates a mechanism where State owned land can only be disposed of as surplus if it no longer serves the purpose for which the State acquired it and the local government with jurisdiction over where the land is located consents to its disposal. The bill says nothing about disposing environmentally critical land. The State, the County and the municipalities expend considerable resources to buy and conserve environmentally sensitive land precisely to protect it from future development. Historically, through Florida Forever, the State also invested significantly in the acquisition of environmentally sensitive land here in the Florida Keys such that over three-quarters of the land in the unincorporated County is protected from future development. The FKSA gives us a $5M carve-out of Florida Forever funding for land acquisition, reinvigorating a conservation program that contracted in recent years due to a lack of funding.
Diaz: The bill cites that the building of affordable housing is a critical state concern. With this language the State has officially labeled affordable housing as a critical state concern and the land authority is authorized to sell off land in order to achieve that goal.
• False. The Legislature made that determination 30 years ago with its designation of affordable housing as part of the critical area program in 1986. See §4, ch. 86-170, Laws of Florida, which enacted the Florida Keys Protection Act. In 1986, the Legislature declared that “mak[ing] available adequate affordable housing for all sectors of the population of the Florida Keys” to be one of the “principles for guiding development” in the Florida Keys.
• Again, nowhere is the Land Authority given authorization to sell environmentally sensitive land for affordable housing because that would be against the law.
Diaz: While I agree that affordable housing is an issue our community needs to address, it should not be at the expense of our environmentally sensitive land. It especially should not be permitted just to allow developers the ability to sell or rent units for ridiculous prices. Under this Act, the price point for what is deemed as affordable housing is for someone that earns nearly $100,000.00 year. In what world is that affordable? I was shocked when I read the State could sell off our environmentally critical land to build housing, but when I saw that it was not even affordable housing, it helped to reinforce the thought that maybe special interest groups got their way again.
• False. No such provision exists in the FKSA. Again, the author appears to confuse the dual missions of the Land Authority. The Land Authority has had a 30-year history of buying land that is environmentally sensitive and different land that is suitable for affordable housing. When appropriate, it will convey environmentally sensitive lands to another governmental entity, such as the State or Federal governments for conservation purposes. When appropriate, the Land Authority will convey land for affordable housing but not land that is environmentally sensitive since such lands are protected from development as affordable housing under the Comprehensive Plan.
Diaz: In my analysis of this Act, the Florida Keys receives $5,000,000.00 in guaranteed funds, and in exchange the State of Florida receives the power to sell off environmentally critical land in order to build residential living units for people that make nearly $100,000.00 a year.
• False. There is no language in the FKSA that authorizes the State to sell environmentally sensitive land so it can be developed as affordable housing. That would violate the County’s Comprehensive Plan and be against the law. In fact, the FKSA only allows for the disposition of state-owned land if it is no longer needed for the purpose for which it was acquired and if the local government with jurisdiction agrees. If a parcel of land is truly environmentally sensitive, it is still needed for conservation and thus not eligible for disposition under the Act.
• Sometimes the Land Authority will sell land to other State and Federal environmental land acquisition programs, the intention of which is to help facilitate more efficient and lower land management costs. We will continue to acquire more environmentally sensitive land to prevent further development, and the FKSA has secured state funding to help us do this. The Land Authority will continue to identify and acquire other types of land suitable for affordable housing.
• Let’s talk about income thresholds for affordable housing. These are set in state statute that predates FKSA. There are four categories of income thresholds for affordable housing, with 60% of median income as a floor and 160% as a ceiling. Developers of land conveyed by the Land Authority, such as Habitat for Humanity, or those using the federal tax credit (LITEC programs) must apply a significantly lower threshold in order to secure additional government funding that makes it possible to complete their projects. Mr. Diaz does not seem to understand the economics of building affordable projects.
Diaz: As a community we need to begin looking deeper into the Florida Keys Stewardship Act and determine whether this Act needs to be rewritten completely.
• We welcome any effort that can improve upon the $5M that has been secured for land acquisition, and the $100M authorization that has been maintained for water quality projects, or that further enhances the ability of the local governments and Land Authority to continue to buy lands for conservation and affordable housing and the retirement of development rights.
Diaz Footnote: Florida statute 253.034 states “Short-term and long-term management goals shall include measurable objectives for the following, as appropriate: (1) Habitat restoration and improvement. (2) Public access and recreational opportunities. (3) Hydrological preservation and restoration. (4) Sustainable forest management. (5) Exotic and invasive species maintenance and control. (6) Capital facilities and infrastructure . . .
• The author quotes from a small snippet of the entire statute. Precisely, he quotes from F.S. 253.034(5)(b)1-6 which addresses care and management of lands already acquired by the government. It appears that the author has mistakenly equated the concepts of the “acquisition” and “disposition” of conservation lands with the “management” of conservation lands.
Diaz Footnote  Subsection Discretionary surtaxes states “[a]ny land acquisition expenditure for a residential housing project in which at least 30 percent of the units are affordable to individuals or families whose total annual household income does not exceed 120 percent of the area median income adjusted for household size, if the land is owned by a local government or by a special district that enters into a written agreement with the local government to provide such housing.”
• This language appears at lines 134-141 of the bill and is an accurate rendition of F.S. 212.055(2) (d)1e. As explained above, this is NOT new statutory language; it was enacted in 2009 and predates the FKSA. See, §19, ch. 2009-96, Laws of Florida. (SB360 2009).
Diaz Footnote  Within the subsection labeled Purchase of Lands in Areas of Critical State Concern it states “ [i]n carrying out the purposes of the areas of critical state concern program, the land authority is also authorized to: [a]cquire and dispose of real and personal property or any interest therein when the acquisition is necessary or appropriate to . . . provide affordable housing to families whose income does not exceed 160 percent of the median family income for the area.
• False. This language does not appear in the bill but it represents portions lifted from page 5 of the staff analysis. The author included an incomplete snippet. It reads in its entirety:
"In carrying out the purposes of the areas of critical state concern program, the land authority is also authorized to:
Acquire and dispose of real and personal property or any interest therein when the acquisition is necessary or appropriate to protect the natural environment, provide public access or public recreational facilities, preserve wildlife habitat areas, provide affordable housing to families whose income does not exceed 160 percent of the median family income for the area, or provide access to management of acquired lands."
The Monroe County Land Authority not only purchases lands but does, at times, sell land to environmental land acquisition programs run by state and federal government agencies. The land authority, when appropriate, does convey land for affordable housing projects to governmental partners.
The Florida Keys Stewardship Act is one of the most important pieces of legislation to be passed on behalf the Florida Keys in recent years. It cements the State’s recognition of the Keys' environmental and economic value and its obligation to preserve and protect Keys' resources. With this legislation we have created the framework to receive $20M annually for water quality improvements and secured $5M annually from the State through the Florida Forever program to help us buy land to preserve the environment and retire development rights while protecting local taxpayers from future potential liability costs.
The FKSA is an enormous accomplishment. Its passage demonstrates that good public policy is achievable even in today’s contentious political environment. It is non-partisan and intended only to benefit the people and environment of the Florida Keys. It was vetted and supported by environmental organizations throughout the State, including the Audubon Society, 1000 Friends of Florida and Sierra Club. I believe I speak for the entire BOCC when I say we are extremely proud of the work of our superb staff and partnership with local governments on the FKSA. It is a legacy that will benefit generations to come.
Mayor Heather Carruthers, Monroe County Commissioner, District 3