MONROE COUNTY — The Florida Supreme Court has declined to hear an appeal from the cities of Marathon and Islamorada asking to keep 300 state-issued building allocations, but the case is far from over as those two municipalities have been lobbying state elected officials to craft a bill that could still bring those allocations to the Florida Keys.
Last summer, the 3rd District Court of Appeal overruled an administrative law judge’s decision that found the cities of Islamorada and Marathon could each have 300 new state-issued building allocations called BPAS or ROGO units. The court ruled that amendments to the two cities’ comprehensive land-use plans require a hurricane evacuation clearance time for permanent residents of no more than 24 hours. The new units were to be used for affordable housing in which the occupants agreed to leave within 48 hours of a hurricane making landfall.
The 3rd DCA found the new allocation of units violated state statute that set up the Area of Critical State Concern for the areas of the Keys that includes Islamorada and Marathon.
The city of Key West, which was allowed to keep its 300, is not subject to the same statute because it set up its own Area of Critical State Concern separate from the rest of the island chain. Monroe County commissioners voted to seek 300 more ROGO units as well but have held off on moving forward on a formal request until the issue is resolved in court.
“We are working on some language, but it’s not finalized yet,” Marathon City Manager George Garrett said of the proposed state legislation.
Attorney Richard Grosso, who represented the residents who successfully fought the new allocations, argued the state laws should not be changed, citing public safety concerns related to hurricane evacuation time.
“There is a reason for these rules and it’s all about public safety,” Grosso said. “After everything we saw this year with Hurricane Ian, and they want to ignore all of the science and public safety? They just want to repeal this when it becomes inconvenient. It’s dangerous and reckless. It was put in place for good reason and it needs to stay for good reason.”
At a recent Monroe County delegation meeting with state House Rep. Jim Mooney, R-Islamorada, and state Sen. Ana Maria Rodriguez, R-Doral, representatives from Keys environmental groups Last Stand, FOLKS (Friends of the Lower Keys) and the Key Largo Federation of Homeowner Associations voiced their objections to more state building allocations being sent to the Keys.
Ann Olsen, representing FOLKS, raised the issue of rapidly intensifying hurricanes and asked Mooney and Rodriguez to not do an “end run around rules that were designed to protect public safety.”
Last Wednesday, Monroe County Attorney Bob Shillinger briefed the Monroe County Commission on the case. County Mayor Craig Cates asked if it would be legal if Key West acquired all or some of the total 1,200 allocations offered by the state and then gave them to Islamorada, Marathon or the county.
Shillinger responded that a legal argument could be made that those units would still violate the county and city ordinances regulating growth and could not be used.
The 3rd DCA ruling has serious impacts for Marathon. That city has already allocated all of the units and construction is complete on some of the projects, with residents occupying the apartments. A 52-unit affordable workforce housing project called Marty’s Place on 39th Street could face condemnation and the development of 248 additional workforce housing units are in jeopardy.
Another large project possibly in jeopardy by the ruling is the 124-unit Seaview Commons development, which has gone through the design and permitting phases and is now ready to be granted building permits, according to the city.
The threat of condemnation is based in precedent, and that precedent-setting lawsuit was handled by Grosso, the same attorney in the local ROGO/BPAS case.
In 2001, Grosso successfully argued a case that led a $3.3 million luxury condo complex in Martin County to be torn down. A state appellate court found that the development, approved by Martin County commissioners, violated that county’s comprehensive land use plan.
Grosso is representing three Keys residents who challenged the 1,200 state-issued ROGO/BPAS units. In February 2021, he sent the attorneys of the Keys cities a letter warning them not to allocate or build any of their 300 units until after the legal challenge was complete, which Marathon did not heed.
Grosso told the attorneys that “any actions taken in furtherance of the ROGO/BPAS allocations that remain subject to legal challenge are taken with knowledge of the pending legal challenge and the potential of a judicial order of invalidation. We would hope that each of the local governments would choose not to move forward with the granting of any of the disputed allocations, whether by action of the elected governing bodies or via any authority to do so that may have been delegated to staff.”
