in final hearing

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The number of lobsters per person, per day, during lobster mini-season, Wednesday, July 27 and Thursday, July 28, in the Florida Keys. Don’t say you’re catching another six lobsters for your wife who’s at the hotel or your father back home in South Carolina. Marathon resident Phil Demeo shows off a prized spiny lobster during the 2019 lobster season. If you plan to go hunting for miniseason this week, make sure you know – and follow – the rules. See page 17. CONTRIBUTED

CAN BOATS BECOME HOMES?

Marathon, BoatWorks, DEO square off in final administrative hearing

ALEX RICKERT

alex@keysweekly.com

Does a lack of express prohibition constitute permission? What’s the difference between a “liveaboard” and a “floating structure?” And what can you do with each of them?

Definitions and code interpretations consumed the majority of proceedings in a final hearing involving the city of Marathon, BoatWorks Investments LLC and the Florida Department of Economic Opportunity on July 13 and 14.

Heard by administrative law judge Todd P. Resavage, the outcome of the two-day hearing could set a significant precedent for the use of live-aboard vessels recognized as dwelling units when the city of Marathon adopted its 2005 comprehensive plan and 2007 land development regulations (LDRs).

DEO’s petition against the city and BoatWorks Investments stems back to Resolution 2021-105, unanimously approved by the Marathon City Council in January 2022, in which the city allowed a limited number of the 32 live-aboard dwelling units previously recognized at a property to be re-developed as land-based units at the same location – if the live-aboards were subsequently done away with.

As Marathon falls within an Area of Critical State Concern, all development agreements within the city – including the BoatWorks plan – are subject to review by DEO unless otherwise specified by a memorandum of understanding between a municipality and the state.

Colloquially known as the “BoatWorks project” at the end of Marathon’s 39th Street Gulf, in which 52 units of affordable housing would be paired with up to 20 market-rate units along the waterfront, the development agreement was eventually appealed by DEO, which contended that the decision to redevelop the live-aboard units on land was inconsistent with the principles set forth by Marathon’s comprehensive plan and LDRs. In layman’s terms: a permanent residence on the water should not be used as a basis to build a residence on land, even on the same piece of property.

Though the aftermath of the appeal was outside the scope of this particular hearing, DEO eventually issued a notice of violation to the city and subsequently revoked its long-standing Memorandum of Understanding (MOU) with Marathon when building permits were issued for a limited number of the market rate units as DEO’s appeal of the live-aboard redevelopments was ongoing.

Calling DEO regional planning administrators Scott Rogers and Barbara Powell, former Area of Critical State Concern administrator Rebecca Jetton and Marathon Planning Director Brian Shea as witnesses, DEO attorney Linville Atkins argued that pre-existing boats and slips at the property were better classified as floating structures and were thus expressly prohibited from being re-developed on land due to provisions in Marathon’s code.

“To allow the conversion of 34 wet slips, or live-aboards, to the upland as a development right circumvents the BPAS process or system, which in turn upsets the staged evacuation plan in place for hurricanes,” said Atkins. “This is a very important issue and … if allowed, will establish a dangerous precedent for not just Marathon but for the Keys.”

According to Florida statutes, a floating structure is defined as “a floating entity … which is not primarily used as a means of transportation on water but which serves purposes or provides

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CAN BOATS BECOME HOMES?

services typically associated with a structure. … Floating structures are expressly excluded from the definition of the term ‘vessel.’”

While agreeing that “there is an express prohibition on redeveloping floating structures upland,” BoatWorks attorney Bart Smith and Marathon city attorney Steve Williams contended that the same provision is nowhere to be found for dwelling units classified as live-aboards.

“There is nowhere in the comprehensive plan, LDRs, or principles for guiding development that expressly prohibits the redevelopment of live-aboards upland,” said Scott. “Because of this, it implicitly allows that live-aboards, the other type of dwelling units recognized that are waterborne, can be developed upland.”

Scott and Williams pointed to multiple previous development orders for the same property rendered to DEO without appeal since 2006, all of which the pair said recognize the existence of 32 live-aboard dwelling units that are already accounted for in hurricane evacuation models. Scott also argued that by redeveloping the live-aboard units upland and connecting them to modern utilities, the new dwelling units would likely prove to be more environmentally friendly than their live-aboard counterparts.

Witnesses for the city and BoatWorks included BoatWorks manager Amedeo D’Ascanio, Marathon City Manager George Garrett and Shea.

In proceedings largely dominated by definitions and document review, Williams also questioned Powell about an anonymous packet sent by a Marathon citizen to DEO. According to Powell, the packet contained allegations of BPAS mismanagement and permit inconsistencies leveled against Marathon officials.

Though both Powell and additional internal DEO emails obtained by Keys Weekly confirmed that the packet was eventually referred to an internal DEO auditor and law enforcement, Powell said the department’s response to the Boatworks development agreement was unaffected by its contents.

A meeting between Marathon officials and DEO was originally set for June 20 to attempt to settle the case, but was canceled shortly before the meeting by DEO. Brief settlement talks resumed shortly before the last witness took the stand on July 14, but were ultimately unsuccessful.

Video recordings of the hearings are available at https:// cloud.castus.tv/vod/city-of-marathon?page=HOME. Though the hearing concluded in two days instead of three as originally scheduled, a ruling from Resavage is likely more than a month away. With the court transcript set to take a minimum of 21 days, all parties will have 10 days upon receipt of the transcript to submit their proposed final orders detailing their desired outcomes. Upon receipt of these proposed orders, Resavage will have an additional 60 days to deliver a final ruling.

CITY OF MARATHON TAX RATE TO STAY

Council agrees to hold the millage rate on ad-valorem taxes at 2.77 mills

On July 12, the Marathon City Council agreed to a proposed tax rate of 2.77 mills, the same as the 2022 rate. The council will have two more budget meetings — on Sept. 13 and Sept. 20, both at 5:05 p.m. at Marathon City Hall — before the tax rate is finalized. Homeowners will pay $277 per $100,000 of the home’s tax assessed value.

According to Jennifer Johnson, Marathon finance director, the proposed millage rate is 17.15% higher than the rollback rate, or the rate that would have collected the same amount of funds in 2022 as in 2023. The rate is based on rising property valuations in the city of Marathon, making it possible to collect more in taxes while keeping the rate flat. The proposed millage rate of 2.77 mills will generate almost $9.9 million in revenue in 2023 for the city’s general fund, up from $8.3 million in 2022.

The proposed budget includes appropriations for a 9.6% cost of living increase for staff, as well as anticipated employee insurance benefits increases of 15%, three more public works positions and increased costs for consulting services for climate change-type studies.

Overall, the FY23 general fund revenues are projected to be about $19.8 million, while the estimated expenditures come in at $17.2 million, for a budget that increases unassigned reserves by about $880,000, and $1.7 million in restricted reserves.

The proposed budget would mean the city has $4.2 million in restricted reserves, and $16.3 million in unassigned reserves. The city has been proactively building its unassigned reserves fund since Hurricane Irma demonstrated the need for savings in the event of a natural disaster to pay for day-to-day operations and debris removal. With $16.3 million in reserve, the city estimates it has enough to operate for just short of a year if another storm would interrupt normal business.

The city has an annual general fund budget of $37.7 million for 2023. In addition to the ad valorem taxes in the general fund, the city operates on funds it receives for providing services, administrative fees and intergovernmental revenue sharing such as the half-cent sales tax.

— Contributed

BOCC DISCUSSES FLOOD MITIGATION ASSISTANCE, CONSERVATION REPORTS AND RESILIENCY PLANS

ALEX RICKERT

alex@keysweekly.com

In one of the quickest commission meetings in recent memory, the majority of the Monroe County Board of County Commissioners’ July 20 meeting was spent hearing reports from staff on flood mitigation assistance programs, public programs offered by master gardeners, habitat conservation plans on Big Pine and No Name keys, and amendments to language in the county’s comprehensive plan regarding Adaptation Action Areas (AAAs).

A presentation from the county land acquisition and land management department highlighted funds applied for annually by the county through the state of Florida from FEMA to assist in flood mitigation efforts. Focusing on homes with repetitive damage over a 10-year period, the Flood Mitigation Assistance program (FMA) provides funding for property owners who wish to either elevate or reconstruct their properties above the minimum flood elevation – or sell their properties altogether – in pursuit of a more floodresilient community.

“Severe repetitive loss” properties, classified as homes with at least two separate National Flood Insurance Program (NFIP) claims exceeding the home’s market value, are eligible for a 100% grant, while “repetitive loss” structures with at least two NFIP claims equaling or exceeding 25% of the structure’s market value are eligible for a 90% grant with a 10% match requirement by the property owner.

Land Authority executive director Christine Hurley said that with no repetitive loss structures submitted in Monroe County’s 2021 application for funding, the county has begun sending direct mail to qualifying properties encouraging them to apply.

“I can’t emphasize enough how competitive the program is,” said Hurley. “Florida has never really been a player in this arena. … I think it’s very important to note, though, that if you are a property owner in Monroe County that has a repetitive loss structure, you are very likely to become someone who could receive the grant.”

The county is accepting applications for the fiscal year 2022 FMA grant, with applications closing around Sept. 15. More details are at https:// www.monroecounty-fl.gov/768/GrantFunding-Flood-Mitigation-Assistanc.

Emily Schemper, senior director of planning and environmental resources, later delivered a presentation on the county’s 16th Annual Monitoring Report (AMR), detailing progress in habitat conservation for Key deer and other protected species on Big Pine and No Name keys. Under a 2006 permit issued by U.S. Fish and Wildlife, the county is permitted a limited take of endangered species in the area due to development. With a cap set on the total allowable impact from commercial, institutional and residential development over the 20-year life of the permit, the county must mitigate any impacts on protected habitat with three times the value of the impact in acquisition of conservation land.

“As of the end of 2021, our impact so far has only been … about 55% of the maximum allowed impact,” said Schemper. “We’ve acquired 99% of the maximum (mitigation land) that we would have to acquire if we got to our full impact. … So we’re in very good shape.”

According to Schemper, even if all the permits competing for ROGO allocations in the monitored area were issued, the county would still sit at less than 60% of its allowable impact.

The board additionally elected to move forward with a preliminary framework for policy language regarding Adaptation Action Areas within the county. Intended for eventual incorporation into the county’s comprehensive plan, the AAAs would identify areas most vulnerable to coastal flooding and rising sea levels and provide strategies to address such vulnerabilities. The AAAs would allow the county to further prioritize funding for infrastructure needs and adaptation planning.

“It seems like a no-brainer to me to adopt these sorts of policies,” said commissioner Holly Raschein. “We’re already doing a lot of this work. I think it just falls right in line with our resilient nature; we’re sort of leading the charge for the state.”

LeeAnn McDougall, pictured holding her award, is recognized as Monroe County’s Employee of the Second Quarter for her outstanding work in the county’s facilities maintenance department. KRISTEN LIVENGOOD/Monroe County

COMMISSIONERS DISCUSS FISCAL YEAR 2023 AT BUDGET WORKSHOP, APPROVE PROPOSED DECREASED MILLAGE RATE

The Monroe County Board of County Commissioners met on July 19 to discuss the proposed $512 million fiscal year 2023 (FY23) budget. The budget includes the Board of County Commissioners, the constitutional officers, like the sheriff's office, tax collector, property appraiser, supervisor of elections, clerk of court and other appropriations for the Tourist Development Council, capital projects and reserves.

Monroe County Administrator Roman Gastesi and Budget and Finance Director Tina Boan presented the tentative budget with FY23 estimates of residential real estate trends, taxable property values, sales taxes, and state shared revenues, along with fund balance, reserves and general fund.

With the proposed budget and countywide average property values, a homesteaded residential property owner with an average appraised assessed taxable value of $469,161 in 2022 will see a $0.66 monthly decrease in their property tax for the FY23 year with the tentative budget. The taxable value is different from the market value.

Some of the FY23 budget highlights: • A decrease in the proposed FY23 aggregate millage rate by 4.1 percent, from 3.3748 to 3.2366. Typically, Monroe County has the lowest millage rate in the state. • Reflects a property value increase with a total value of $36.8 billion, another historic high. Property values have doubled in the past 10 years. • Reflects continued investment in roads and bridges, resilience adaptation, facilities, and public safety infrastructure. A number of notable capital projects are funded in whole or in large part with non-local funding. • Funds expanded recreational facilities, including new parks, upgrades and amenities to existing parks, and expanded library services. • Funds higher operational costs like CPI-based increases for vendor contracts, higher cost of fuel, supplies, and materials, higher utility and property insurance costs, and higher personnel costs. • Provides more than $2.1 million in funding for 26 communitybased nonprofit organizations.

FY23 budget timeline:

The first public hearing of the adoption of the tentative budget and millage rate will be Monday, Sept. 12 at 5:05 p.m. at the Harvey Government Center in Key West.

The final public hearing will be held on Wednesday, Sept. 21 at 5:05 p.m. at the Murray Nelson Government Center in Key Largo. The BOCC adopts the final millage rate and budget at this meeting. Both meetings are hybrid and can be attended in-person or via Zoom.

The Monroe County Office of Budget and Finance provides coordination and development of the budget. The award-winning office continues to work with inflation issues, Hurricane Irma and COVID-19 impacts, while providing for the department's daily operations, program enhancements, capital projects, and infrastructure improvements.

More information is at www.monroecounty-fl.gov/budgetandfinance.