Are We Through Tiering Ourselves Apart?

by Nancy Klingener

How do you come up on the short end of a 23-5 scorecard ... and consider yourself victorious?

That was the question for the environmentalists after Administrative Law Judge Donald Alexander issued his recommended order in the enviros' challenge of Monroe County's proposed new growth management rules. The rules support the Tier System, our new, simpler, method for figuring out who gets to build what where in the county's unincorporated areas.

The Tier System, which classifies undeveloped land into three categories, is the county's chosen method of implementing the Florida Keys Carrying Capacity Study, a $6 million project ($3 million went for a stormwater management plan) intended to settle once and for all the question of how much more development we can take in the Keys.

The study's finding, at least for upland habitats, was not much at all, which made the obvious solution to send development into scarified areas. That was the idea of the Tier System. Tier I was the really good habitat, shouldn't be developed. Tier III was the developable property. But Tier II was a bit of a problem: "Transition and Sprawl Reduction Area." County commissioners a few years back had trouble with that one. It required some judgment calls, and tough decisions. So they got rid of Tier II.

The state didn't like that idea much, especially as the county had promised the governor and Cabinet to stop screwing around with the Tier System. So Tier II came back only now it's called Tier III-A or, refreshingly, SPA (special protection area).

Maps were drawn, hearings were held, votes were taken. The state approved the new rules, as it must because we are still an Area of Critical Concern. As is inevitable in Keys growth management, the enviros filed a legal challenge.

The enviros made 28 allegations and in 23 of them Alexander sided with the county (and the state, which came in on the county's side to defend the rules). That would seem to add up to a resounding victory for the county.

Except. A couple of the enviros' wins were big ones. The biggest was on the issue of size. The county's rules said that to be Tier I, a parcel had to be at least four acres, that anything smaller wasn't worth calling good habitat.

*On this one, the judge sided with the enviros. "Four-acre tracts of 'natural areas' are not insignificant or common; they are 'huge' by Keys standards," Alexander wrote. "Simply because larger parcels have more value than smaller ones does not mean that smaller hammocks in the unique, small-island geography of the Keys are unimportant."*

Tellingly, Alexander zeroed in on where the four-acre threshold really came from (and it wasn't from biologists): "Finally, it is fair to infer from the evidence of that the county's 'policy' decision to use a four-acre threshold was not based on scientific considerations but, in the words of one county witness, was simply a number the county commissioners 'became comfortable with.' (In fact, a January 19, 2004 memorandum by the county's outside consultant, which supports the four-acre threshold, was prepared AFTER he knew that the county had decided to use that size threshold.)"

Yikes. There's some political science for you.

The judge made a similar ruling on the enviros' side regarding SPAs, which the county had said must be at least one acre. How could that be, when the current habitat evaluation index system “considers only those hammock patches of less than .37 of an acre to have no ecological value"?

The third biggie for the enviros was the judge's call on road-building. Which roads would qualify as habitat dividers was a contentious issue throughout the Tier System process, with enviros arguing that only U.S. 1 should count, and the county wavering but continually backsliding to an "any old road will do" position.

The county's new rules had said anyone who owned SPA land could ask for it to be rezoned to Tier III if it had a 16-foot road in it. The judge reached the obvious conclusion: "it allows a property owner to circumvent a SPA designation by merely building a paved road."

Two other counts on which the judge recommended the enviros' side, the county didn't even dispute. All the other allegations raised by the enviros, including the question of protecting wetlands and endangered species, and whether Tier I and Tier III should be allowed to butt up against each other, he came down on the county's side.

So who really won here? *For the enviros, it's a question of quality over quantity — they lost most of their points but they won a couple of the ones that mattered most.*

The county can claim victory of numbers ... except there are some other numbers involved here, namely attorneys' fees and travel and whatever else it costs to deal with four days of trial in Miami and two in Tallahassee (it resulted in a 10-volume transcript; Alexander's order alone is 70 pages). And the thing is, the county last fall rejected a settlement offer from the enviros ... that would have been far more generous to the county.

*Why? County Commissioner George Neugent blames former State Rep. Ken Sorensen. It came at the same time that DCA Secretary Thaddeus Cohen was attempting a strange hurry-up de-designation of the Keys from Critical Concern status. But the county commissioners rejected the settlement and they're the ones who are accountable. They just couldn't stand to work with, much less concede anything to, the environmentalists. It would be nice to say it cost them but the truth is it cost us.*

There is some good news: The way may be finally clear to move ahead with the Tier System. It has always been seen as a good idea by environmentalists and frazzled planners alike. It simplifies the growth management system, takes out some of the complexities and unfairnesses of ROGO (in which the wealthy could basically "buy" a building permit by buying environmentally sensitive lots and donating them to the county).

Alexander praised it in his ruling: "The Tier System is robust, easy to administer, and implements the guidelines of the [Florida Keys Carrying Capacity Study]."

But from the beginning, the county has been inconsistent and backslide-prone in its implementation, through such moves as eliminating Tier II, and enacting the 4-acre rule and the road-as-divider rule.

The enviros didn't win everything they wanted on this, but here's hoping it will lead to a good-faith effort to accurately map the Keys and assess habitat.

*"There's a realization that it's really important to get these Tier maps right," said Richard Grosso, attorney for the environmentalists.

"Let's have the parties at the table and get them right, using the science that's out there — not based on numbers and formulas and artificial distinctions. Let's do something that protects the hardwood hammocks of the Keys once and for all, while allowing for ROGO allocations for 20-plus years."

nklingener@keysnews.com