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Item G09BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: August 19, 2009 Division: Growth Management Bulk Item: Yes CL No _ Department: Planning and Environmental Resources Staff Contact Person: Andrew O. Trivette, Growth Management Director AGENDA ITEM WORDING: Approval of the currently utilized "H" mitigation credit/debit process for public and private development located on Big Pine Key and No Name Key with direction to Growth Management to pursue Regulatory Conservation as a mitigation strategy using a mitigation ordinance as a secondary approach. ITEM BACKGROUND: The Habitat Conservation Plan (HCP) and the Incidental Take Permit (ITP) which allow continued, limited, development of No Name Key and Big Pine Key over a period of 20 years requires mitigation of impacts associated with this development. Staff requests that the current process of "H" debit and credit continue to be utilized until the ratification of Regulatory Conservation by USF&W or, failing that, a mitigation ordinance is adopted and becomes effective. PREVIOUS RELEVANT BOCC ACTION: On November 14, 2007, the BOCC approved Ordinance 044-2007 imposing an Interim Development Ordinance prohibiting the approval of new allocations for ROGO and NROGO until such time as a mitigation ordinance is adopted by the BOCC or for two months, whichever comes first. On January 16, 2008, a public hearing was held to consider adoption of an Ordinance imposing an IDO ending July 14, 2008 with the ROGO Allocation Quarter or when the Mitigation Ordinance was adopted by the BOCC whichever came first. A vote of 4-1 denied the request for a moratorium. On July 16, 2008, the BOCC held a public hearing to consider an Ordinance, at the request of the Planning and Environmental Resources Staff, to amend the Monroe County Code to allow credit for habitat mitigation and establish mitigation requirements for development activities. This item was continued until August 20, 2008. On August 20, 2008, the BOCC held a public hearing to consider the continued item. The Planning and Environmental Resources Staff requested to withdraw the Ordinance. Motion was made and carried unanimously. A final version of the Ordinance was never drafted. STAFF RECOMMENDATIONS: Approval TOTAL COST: n/a INDIRECT COST: BUDGETED: Yes No DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: nla SOURCE OF FUNDS: REVENUE PRODUCING: Yes No x AMOUNT PER MONTH Year APPROVED BY: County Atty X OMB/Purchasing Risk Management DOCUMENTATION: Included X Not Required DISPOSITION: AGENDA ITEM # MEMORANDUM MONROE COUNTY GROWTH MANAGEMENT DIVISION We strive to be caring, professional and fair To: Roman Gastesi, County Administrator 7-W IM3 From: Andrew Omer Trivette Growth Management Division Director t� Date: Tuesday August 4, 2009 RE: "H" Mitigation Bank Debit and Credit Process Continuance The intention of this memorandum is to provide additional clarification on the request to continue using the current "H" mitigation credit and debit process fro public and private development on Big Pine and No Name Keys. The Habitat Conservation Plan (HCP) and the Incidental Take Permit (ITP) which allow continued, limited, development of No Name Key and Big Pine Key over a period of 20 years requires mitigation of impacts associated with this development. The impact of the development is represented by the variable "H". The HCP and ITP require that the impact be mitigated at a ratio of 3:1 and that impacts shall be tracked by the County and reported annually to the United States Fish and Wildlife Service. The HCP suggests that the County should adopt a mitigation ordinance to allow a developer to mitigate impacts through donation of land or payment of a fee which the County would in turn use to purchase land to mitigate the impact. Staff prepared such an ordinance and presented it several times in several formats to both the Planning Commission and the BOCC with little success in addressing the inherent problems surrounding a methodology for assigning a fee for "H". Staff requested a moratorium be established on all development in the affected planning area until an ordinance could be established. This suggestion was rejected due to the possible length of such a moratorium. At present the mitigation bank is used to provide the required mitigation for both public and private development. Staff has proposed a new approach to satisfying the mitigation requirement of the ITP in total (3.3 "H") called Regulatory Conservation. Staff requests that the current process of "H" debit and credit continue to be utilized until the ratification of Regulatory Conservation by USF&W or, failing that, a mitigation ordinance is adopted and becomes effective. The attached tables illustrate the credits, debits and the current balance of the "H" bank for all public and private development activities occurring on Big Pine and No Name Keys since 1995. "H" BANK ACTIVITY SUMMARY MARCH 13, 1995 TO PRESENT "H" DEBITS PROJECT TYPE "H" DEBITS TOTAL ACCESSORIES 34 0.0305 SINGLE FAMILY RESIDENTIAL 105 0.1120 SFR-AFFORDABLE 7 0.0394 SFR-PENDING ( AFFORDABLE 7 0.0165 SFR-RESERVED -16 AFFORDABLE 1 0.0078 TOTAL SINGLE FAMILY RESIDENTIAL 120 0.1757 NON-RESIDENTIAL DEVELOPMENT 2,500 sf retail, Panizza 0.0555 1,309 ft expansion TIB BANK 0.0003 2,500 sf As of Right Permit FLETCHER 0.0060 2,500 sq As of Right Permit FLETCHER 0.0033 4,869 sf Fire Station #13 expansion 0.0012 Budgeted 7 pocket parks 0.0550 Budgeted Library Expansion 0.0110 Budgeted Public Offices - New and Expansion 0.0110 County Rd. to Mariner's Park 0.0102 Expansion 3,630 SQ Instititutional Use -Church 0.0053 Hibiscus Rd. 0.0019 Key Deer Boulevard 0.0130 New 2,246 sf office 0.0025 New 2,400 sf office 0.0010 Sands Road Segment 1 0.0018 Sands Road Segment 2 0.0019 Budgeted US 1 ROAD WIDENING 0.0072 TOTAL NON-RESIDENTIAL DEVELOPMENT 17 0.1882 TOTAL "H" DEBITS 0.3944 "H" CREDITS ACQUISITION TYPES "H" CREDITS COUNTY ACQUISITION 461 0.9596 DEDICATED ROGO LOT 543 0.9413 FLORIDA COMMUNITIES TRUST GRANT 3 0.0153 MCLA/P2000 GRANT 8 0.0144 MCLA 13 0.0102 TOTAL "H" CREDITS 1028 1.9408 GOAL 3.3 NEED 1.3592 CURRENT "H" BANK BALANCEI 0.7576 MEMORANDUM MONROE COUNTY GROWTH MANAGEMENT DIVISION We strive to be caring, professional and fair To: Roman Gastesi, County Administrator23 M1^ From: Andrew O. Trivette, Growth Management Division Director _$ Date: August 1, 2008 RE: Regulatory Conservation as a Mitigation Technique The intention of this memo is to provide detail on the concept of regulatory conservation as a technique for threatened and endangered species habitat loss and development impact mitigation. Concept: Mitigation of both direct habitat loss and indirect human related impacts on threatened and endangered species can occur through the use of a rigorous regulatory framework which prohibits, discourages and limits development. Introduction: Development within the Planning Area of Big Pine and No Name Keys is heavily regulated by three documents; the Big Pine and No Name Key Livable Communikeys Plan (master plan), the Big Pine and No Name Key Habitat Conservation Plan (HCP) and the Federal Incidental Take Permit (ITP). The master plan and the HCP are community plans which are governed by the ITP as the federal permit for take of threatened and endangered species, except where the community plans are more restrictive. All of these intricate regulatory documents hold as a key tenet the survival of the Florida Key Deer, as an umbrella species, through the maintenance of the herd above quasi -extinction population levels. This is accomplished through the strict monitoring of impact through the assigned master variable "H". The master variable represents both direct habitat loss and indirect human -related effects on Key deer. Each parcel of land within the planning area is assigned an "H" value through the use of a spatial model which considers deer movement corridors, deer density in an area, existing development density, water barriers to movement, distance of a property from US 1, and habitat quality. The assigned "H" value represents the total impact on the umbrella species that would be realized if that parcel or property were developed. The three (3) regulatory documents allow for a development horizon of 20 years with a total "H" impact of 1.1 to the umbrella species through the continued development of the planning area. The plans also require that this impact be mitigated at a ratio of 3:1. The plans define the appropriate form of mitigation to be property acquisition. The 3:1 ratio should be met through the conservation of land which has a cumulative assigned "H" value of 3.3 to the total impact value of 1.1. The strict requirement of mitigation in the form of property acquisition and the tight controls on the form of purchase of said property have created the unintended consequence of a moratorium on development due to the lack of willing sellers. Monroe County and the State of Florida have Monroe County Growth Management Division Naze I spent nearly 100 million dollars in property acquisition within this planning area over the last seven (7) years and to date every private vacant buildable land owner has, at minimum, received three (3) purchase offers from various conservation agencies and groups. Regulatory Conservation: I would like to offer as an alternative the concept of regulatory conservation. The intent of a mitigation requirement is the conservation of habitat. It is an extremely narrow approach to consider that the only method of habitat protection is purchase of the property for conservation. Monroe County has been protecting habitat through a rigorous regulatory framework for over 15 years. We accomplish this ambitious goal of smart growth in an area where land is at a premium through the enforcement of a Rate of Growth Ordinance (ROGO). ROGO establishes a competitive allocation system for our limited development approvals. The county achieves smart growth through the discouragement of development in environmentally sensitive and development sparse areas of the county by structuring the competition to favor infill development areas. The competition is based on the proposed development area's Tier designation. The Tier is simply a separation of our jurisdiction into two (2) categories, those inappropriate for continued development, Tier 1, and those which are infill areas, Tier 3. An applicant for development approval receives points based on the Tier designation and then competes with the other applicants from that sub -district, upper and lower keys with another for Big Pine and No Name Keys. The County discourages development in Tier 1 by creating a differential of 30 points between Tiers 1 and 3. The County further ensures the protection of Tier 1 properties through the allowance for only three (3) Tier 1 permits per year within each sub -district (upper and lower keys) and only 10 permits for Tier 1 properties within the Big Pine and No Name Keys planning area over the next 20 years. Regulatory Conservation Applied: If we consider only Big Pine and No Name Key, the total cumulative "H" value of the 1,156 private vacant buildable properties in Tier i is 3.5. Currently Monroe County has seven (7) permits remaining available for issuance within Tier 1 of the planning area. Assuming that these seven (7) permits will be those private vacant buildable Tier 1 properties with the highest "H" values the additional total "H" or impact realized will be .69. The ITP allows a total "H" impact of 1.1 and presently we have allowed development equaling .75, thus the additional impact of .69 to total 1.4 is not feasible. However, using this worst case scenario, through the concept of regulatory conservation based on the discouragement of development and the prohibition for more than 10 total permits within Tier 1 over the next 20 years Monroe County is providing a total "H" impact mitigation of 2.81 in Tier 1 properties not entitled to development approval. Combining the total "H" impact mitigated through traditional acquisition (1.6) with that mitigated through regulatory conservation, Monroe County has surpassed the 3:1 ratio required for a total impact of 1.1 by providing habitat protection for properties equaling a total "H" of 4.41. It is important to note that acceptance of this method of mitigating impact and habitat loss will not be deter our continuing efforts to acquire those lands designated Tier 1.