The Florida Department of Commerce's latest report modeling hurricane evacuation times for the Florida Keys — the first analysis released in over a decade — poses serious implications for the future of development in the Keys.
The “Florida Keys Hurricane Evacuation Modeling Report,” released Dec. 8, models several different scenarios for current conditions in the Keys as well as several prospective conditions. One baseline model shows the possibility of developing nearly 8,000 vacant lots in the area, which is thousands more building units than the state agency determined a decade ago the Keys could handle today.
This has activists, developers and local government officials alike bracing for a decision from the state.
“It's alarming and it's actually more than alarming,” said Ann Olsen, a Summerland Keys resident and the President of Keys Last Stand, an organization focused on the quality of life for Florida Keys residents.
Olsen said that she and members of her organization fear that allowing more lots to be constructed could endanger residents.
“That's supposed to be the number one role of our government is to, you know, provide safety to the citizens, public safety,” she said. “Evacuation is a critical component of our land development component in that we're supposed to be able to evacuate all residents in 24 hours.”
READ MORE: "The Florida Keys Hurricane Challenge Is To Get Everyone Out On Time"
In response to the report, Monroe County Commissioners passed a resolution Dec. 13, in part, asking the the Florida Legislature to hold off on making decisions before the public has time to weigh in. The resolution was then sent to Gov. Ron DeSantis, Florida Senate President Kathleen Passidomo, Florida House Speaker Paul Renner and the Monroe County Legislative Delegation.
The Legislature could take up the issue during the regular session that begins Tuesday, but Monroe County Mayor Holly Raschein has said it’s unlikely.
In addition to public input, Monroe County officials hope to present the Legislature with more data that will help inform how many, if any, more building allocations can be given out.
Emily Schemper, the Senior Director of Planning & Environmental Resources for Monroe County, has been tasked with analyzing the remaining 7,954 lots that are listed in the Florida Department of Commerce, also known as FloridaCommerce.
Schemper and a Geographic Information System, or GIS, administrator pulled data from property appraiser records. Then, they determine how many of those lots have been marked as vacant but may actually be included in a mobile home park.
“So that can eliminate what appear to be quite a few vacant parcels from the outset,” Schemper said.
The planning team is also conducting a “density analysis” that checks how many of the lots meet acreage minimums for a building unit per their future land use map designation and cross-reference with their zoning map.
The county also has restrictions over habitat types such as wetlands, submerged lands, and mangroves.
“Some of those restrictions are not necessarily definitive,” she said. “You can sometimes get a permit to fill some land.”
Schemper said she hopes to have her analysis ready for the upcoming County Commission meeting on Jan. 31.
How hurricane evacuation and building development are linked
The Keys are considered an “Area of Critical State Concern.” They were designated that way by the Florida Environmental Land and Water Management Act of 1972 because they contain natural resources that are of major statewide importance.
The Areas of Critical State Concern program intends to protect areas like the Keys from “uncontrolled development that would cause substantial deterioration” to their resources, according to FloridaCommerce.
FloridaCommerce is the state agency that’s tasked with overseeing that local governments in the Keys are establishing policies that “protect public safety and welfare in the event of a natural disaster by maintaining a hurricane evacuation clearance time for permanent residents of no more than 24 hours.”
There’s only one major road in and out of the entire island chain: U.S. 1. There also aren’t any hurricane shelters in the Keys that are certified to house people in storms stronger than a category 2. So, evacuation becomes mandatory for everyone when a hurricane reaches category 3.
More buildings mean the potential for more people who are relying on limited infrastructure to leave safely in the case of a strong hurricane. So, land use planning, hurricane evacuation modeling, and environmental sensitivity are all considerations for FloridaCommerce as they oversee “Areas of Critical State Concern.”
A History of Building Restrictions
In 1992, the Florida Keys adopted a strict system for distributing building permits called the Rate of Growth Ordinance, or ROGO. The system, which goes by different names depending on the municipality you’re trying to get a permit from, is based on a tiered points system.
“We've always known that we weren't going to be able to allow all the undeveloped land of the keys to develop from the initiation of ROGO,” said Richard Grosso, a public interest land use and environmental lawyer since the mid-1980s.
This limited growth system aims to direct development to parts of the Keys that would have the least impact on the environment and ensure that it doesn’t impede residents’ ability to evacuate in the 24-hour window they’re mandated to leave in.
“I think we're at that same critical juncture, for all of South Florida. It's just a lot more acute and obvious in the Florida Keys,” Grosso said. “Given that you got 42 islands connected by a series of bridges and one way out surrounded by rising seas, on all sides in the most biodiverse, environmentally sensitive part of Florida. So we have obviously major concerns at this point.”
The limited growth system is a famously strict and slow process with applicants sometimes waiting up to several years before they receive a permit to build on their property.
“In the Lower Keys the oldest applicant last quarter was November of 2020,” Schemper said. “The Upper Keys, the last quarter that was awarded is from July of 2019.”
The development restrictions are rarely loosened. But in 2018, they were preempted when a plan proposed by then-Gov. Rick Scott was approved, opening the door for 1,300 affordable housing units to be built outside of the approved permit allocations. Ultimately, only Key West’s portion of those housing units was approved.
In 2012, FloridaCommerce released a hurricane evacuation modeling report alongside a “build-out analysis” as part of that year’s Florida Keys Annual Report. The build-out analysis determined that only 3,550 permit allocations across 10 years could be awarded before the area reached its carrying capacity for development.
Those allocations were set to expire last year, in 2023, but Monroe County officials decided to give themselves more time before they ran out of permits.
“So the unincorporated county, if we continue as is, we would give out our last allocations from the 2012 allocation pool in the summer of 2026,” Schemper said.
The new report and the threat of takings cases
Unlike in 2012, the December report does not include a build-out analysis or recommendations for the Legislature to consider. Instead, it only models several possible scenarios.
A spokesperson for FloridaCommerce did not directly answer questions from WLRN about whether a build-out analysis was underway, why one wasn’t released yet, and when legislators might take up the issue.
“As stated within the Executive Summary of the report, the intention of the report is to give options and considerations for Keys residents, the Legislature, and the Administration Commission to help ensure the continued safety and well-being of Florida Keys residents for generations to come,” the spokesperson stated in an email. “The analysis, research, and data and methodology for the Hurricane Evacuation Modeling Study are all included in the report.”
Many across the Keys don’t find it likely that the Legislature will ultimately decide that all 7,954 vacant lots will be given building permits.
“Certainly, if nearly 8,000 new permits became available in short order here it would upset the economy,” said Brian Schmitt, the owner of Coldwell Banker Schmitt Real Estate company in the Keys. “It would dramatically impact the value of existing lots. It would dramatically affect the value of existing homes. It would dramatically impact the value of transferable building rights, which are a component of this marketplace.”
But if development is restricted too much, property owners may be entitled to takings claims.
Per federal and state law, property owners are entitled to reasonable economic use of their property. If they have taken steps to develop the land and are prevented from building, they can file a claim that would make the government pay for the value of the land.
Court and attorney fees as well as inflation driving up property costs could make takings claim payouts an expensive ticket for local and state governments.
“It’s an unknowable number,” said Bob Shillinger, the Monroe County Attorney. “You have to show that you've had reasonable investment-backed expectations and have taken steps to develop the land along the way. So there are property owners who may own a vacant piece of property, who've held it for years, haven't done anything to it, and under current takings law, would not meet the standard for establishing a taking.”
Schmitt projects that the Legislature will decide to increase hurricane evacuation times to 30 hours instead of 24 hours to allow more building units to legally be developed, instead of assuming takings cases.
“They don't want to put the taxpayers on the hook to buy well over a $1 billion worth of real estate here in the Keys. And nobody knows what the price tag of those lots are, but it just doubled probably in the last 3 years since the pandemic,” Schmitt said.
