State Considers Easing Fla. Keys Decades-Old Growth Limits

MARATHON, Fla. – The state is considering easing strict long-standing limits on development in the Florida Keys, a move that could fuel the biggest building boom in the ecologically fragile island chain in nearly a half-century.

It could – at least potentially – open the door to as many as 8,000 new homes and businesses in one of Florida's most famous tourist destinations and supercharge Monroe County's construction industry and economy.

But it also would pack more people into a hurricane hot zone already experiencing increasing tidal flooding and facing billions of dollars in projects to raise roads and repair aging wastewater and water supply systems – and would almost certainly increase impacts on declining coral reefs, fish populations and sea grass beds.

The Florida Department of Commerce is planning to amend what rank as the most restrictive growth rules in the state, citing an already growing Keys population and an updated analysis that would allow emergency managers additional time to order hurricane evacuations. Getting residents and tourist out of harm's way is always a challenge in the 113-mile-long chain that has been hit or brushed by tropical storms or hurricanes 10 times since 2000 and has only one major road in and out.

Many landowners who have long been denied building permits will likely support easing building rules, but some longtime residents and environmental groups argue it would be a bad move on many levels.

"With rapid intensification of tropical storms into major hurricanes becoming a worsening problem, how does anyone justify increasing or removing the evacuation-based development limits in the Keys," environmental attorney Richard Grosso, who has represented several Keys residents in litigation against state efforts to increase development, told the Miami Herald.

Half century of growth limits

The Keys' tough development rules date to the 1970s, when the entire archipelago was declared an "area of critical state concern" in response to surging development, which included plans to build high-rises in Marathon. The designation was aimed at both protecting the sensitive marine systems surrounding the islands and ensuring residents had enough time to safely evacuate along the Overseas Highway within a 24-hour window.

Under the "critical concern" designation, all development was eventually regulated by a complicated law called the Rate of Growth Ordinance, known as ROGO, which requires property owners to go through a myriad of steps that can take decades to traverse before they ever receive a building permit.

The existing rules haven't halted building in the Keys but have kept it at a slow trickle. Meanwhile, the once-seasonal tourist economy has become much more year-round, and the numbers of people buying permanent and vacation homes continues to grow – driving up real estate prices and the demand for new housing.

While the state rules have been in place since Reubin Askew was governor, the law was also intended to be revisited "every decennial census, provided there was additional capacity following the latest update," Monroe County Attorney Bob Shillinger told the Miami Herald.

That opening has put the growth rules back up for review, and possible revision – with any proposed changes requiring approval by the Florida Legislature and governor.

With the latest census showing a population of around 80,000 people – roughly 10,000 more than the 2010 census — the state is now studying plans to reflect that bump. A range of options could be on the table, including clearing the way for construction permits for basically every undeveloped lot purchased over the years in the Keys – a number the Florida Department of Commerce puts at 7,954.

On its website this month, the department outlined the process as well as possible tweaks to hurricane evacuation timing. "An analysis of the updated hurricane evacuation modeling, along with public comment and local government input, will be used to make policy and rule recommendations to the Florida Governor, Cabinet, and Legislature."

County attorney Shillinger believes Monroe will push for some sort of compromise that wouldn't allow every lot to suddenly obtain building permits, with a careful look at the rise in vacation homes. Still, even half that number would represent a major surge for the Keys, one that could transform some communities.

"While we're seeing an increase in Census population, we've also seen an increase in the numbers of second and third homes," Shillinger said. "How do they factor into the model? Well, the standard for 24 hours is permanent residents, so, theoretically, a vacation rental doesn't count in the 24-hour evacuation period."

The permitting and evacuation issues are expected to be discussed at a Dec. 13 meeting of the Monroe County Commission, which is likely to vote on a recommendation to pass on to the Legislature when it comes into session in January.

"They're ready to roll out the evacuation model so they can finalize it," Shillinger said. "They want local government input on things that can go into the model."

Mayor Holly Raschein told the Herald that she can't say where she stands on additional development before discussing it with the other four commissioners, adding, "we knew this was coming, however, seeing words on paper is a reality check."

"What I do know is that we're not going to make everyone happy and that public safety, our environment and property rights all come into play," Rachein said. "I'm encouraged that our Keys have faced difficult decisions before and we always persevere."

Millions in 'takings' lawsuits loom

There's also a huge financial factor in play for Monroe County's leaders. Under the current rules, the county is supposed to cease granting any new building permits for undeveloped properties after 2023 – a step that could expose the county, and taxpayers, to billions of dollars or more in liability in "takings" lawsuits from landowners should they be flat-out refused building permits.

By law, if the government prohibits owners from developing their lands, they must pay what a court ultimately decides is fair market value for the property. With the amount of undeveloped lots in the Keys, Monroe County and cities like Key West, Marathon and Islamorada alone could be facing thousands of such cases if the 2023 deadline is maintained.

Shillinger said finding some number in between zero permits and every available lot in the Keys would give the county more time to prepare plans – and provide an argument in takings cases. That would still provide property owners the potential to build, he said, at least eventually.

"As long as there is a chance, there is not taking," he said during a meeting with other county officials earlier this month.

Key West attorney David Paul Horan, who has represented many Keys residents in land use cases, did not buy that argument. In the end, he said, local governments will either have to issue all of the outstanding building permits or pay landowners market value for properties."

"We're telling people who've been paying taxes for years and years, 'I'm sorry, you can't use your property,'" Horan said at that meeting. "Ultimately, the Constitution is going to rule and just compensation will have to be made."

"Accepting a known risk"

Critics of the proposal to revise the law say people who gambled on obtaining rare building permits knew what they were getting into with Keys land purchases over the last decades.

"They were accepting a known risk that they may not be able to build on their property," Robert Gold, a Key West resident and member of the Keys environmental group Last Stand, said during the meeting with Monroe County officials.

The last state review in 2012 allowed limited new permits but also called for the permanent building cap to kick in 2023. The view a decade ago was that the Keys could only handle so much development and so many visitors. Critics say nothing has changed to suggest the islands are now able to absorb more people and buildings.

"That was the most recent assessment that determined there was an environmental and infrastructure capacity in the Keys that should not be expanded," said Ed Davidson, chair of the environmental group, Florida Keys Citizens Coalition, and chairman emeritus of the Florida Audubon Society.

Beyond spreading damage from pollution and overuse to surrounding marine ecosystems, there are concerns that a new burst of building would strain the Keys' already stressed critical infrastructure. Everything from drinking water and sewage systems to roads and schools is already in need of expansions or overhauls.

In March, there were three consecutive breaks in the underground fresh water main, creating an emergency situation for the thousands of homes and businesses from the Upper Keys to Key West.

In May, the Miami Herald obtained documents that revealed parts of the Keys' billion-dollar centralized wastewater system, which is only five years old, began hemorrhaging sewage into the fragile nearshore waters shortly after it was completed and carries a $16-million price tag to be repaired.

The county also faces billions of dollars worth of projects intended to blunt the impacts of climate change in coming decades — raising roads, installing stormwater pumps, elevating homes and businesses. The looming bills have the county pushing to raise sales taxes by 1%, which would put much of the cost on tourists.

Traffic, evacuation worries

Then there are questions about public safety from possible changes to the timeline for hurricanes evacuation decisions.

The state proposal could up the allowable evacuation time for residents and tourists from the current 24 hours to 31 hours. That means emergency managers would have to make the call to evacuate earlier – in communities that are famously resistant to leaving until the threat is dire.

Davidson, the environmental advocate, argues the state's modeling already under-estimates real-world evacuation challenges — ignoring the fact that people trying to flee Monroe could likely run into people also fleeing the heavily populated South Florida mainland, slowing the flow even further.

"This study makes the preposterous, utterly unrealistic and dishonest assumption that while all of us are fleeing for our lives, no residents in Homestead, Miami, Fort Lauderdale and West Palm Beach have left the house," he told the Herald.

The Keys already have increasing traffic snarls. The Overseas Highway, which is only one lane in each direction for most of its span from Key Largo to Key West, has also seen more frequent backups from the increasing number of visitors and residents. And the once-infamous 18-mile stretch from Key Largo to mainland Homestead can be a bottleneck on any random weekend, even after a $330 million overhaul completed in 2011 that added a series of passing lanes and median that has cut down on deadly head-on collisions.

"This is life and limb stuff," environmental attorney Grosso said, "and state and local leaders need to realize there are new realities and information now compared to 100, 50 or even 20 years ago, and it is time to focus on protecting existing lives and investments in the Keys instead of subsidizing putting even more in harm's way."

© 2023 Florida Keys Keynoter