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HomeMy WebLinkAboutJ. Growth ManagementBOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: December 15, 2010 (Marathon) Department: County Attorney Bulk Item: Yes X No Staff Contact: Suzanne Hutton # 3473 AGENDA ITEM WORDING: Discussion & direction re potential litigation to determine county's duties & authority in response to request by Keys Energy Services to approve utility easements over county -owned properties, including whether a county development permit is required to be issued in order for KES to place poles and utility lines on access easements; also county's ability to issue building permits for electrical connections of utilities in established rights -of -way to existing structures on private property. ITEM BACKGROUND: See Growth Management agenda item re direction re Comp Plan & land use regulations, and requests for easements over 4 lots owned by the County as result of ROGO dedications, which lots are in a CBRS area, are designated Tier 1, and cover Tortuga and Bimini Lanes, roads which have been constructed on access easements. Comprehensive Plan Policy 102.8.5 discourages the extension of electrical service facilities to CBRS Areas, while Section 130-122, Monroe County Code, prohibits the extension of electrical transmission lines to CBRS areas. State Statute, §380.04(3)(b), F.S. excludes from the term development utility work on "established rights -of -way." Case law clearly shows that an existing road which has been dedicated to the use of the public and within the local government's road system constitutes an established right-of-way. Where, as here, there is no public dedication but only access easements granted by deed, an existing road on that access easement may not constitute an established right-of- way, and the utility may therefore not have the exemption from the necessity of a permit for construc- tion of poles on private property, whether or not subject to an access easement. There is no clear and authoritative interpretation of whether the roads in question are established rights -of -way, or whether a utility may construct utility facilities on such a road without a local development permit. Statutory way of necessity, per S. 704.01(2), F.S., appears to expand access easement to use for "any utility service." PREVIOUS RELEVANT BOCC ACTION: Approval of Ordinance No. 20-2008 changing the land use regulation to allow the provision of central wastewater and support utilities to developed properties within the CBRS; and approval of Ordinance No. 3-2009, repealing and rescinding Ord. No. 20-2008, after the Dept. of Community Affairs rejected the ordinance as inconsistent with the Comp Plan. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval for County to file an action for declaratory judgment regarding whether Bimini and Tortuga Lanes, No Name Key, constitute rights -of -way, upon which Keys Energy Services does not need a county permit to construct poles, & the county's responsibility regarding issuance of building permits for connections between utility lines in rights -of -way and structures on private property. TOTAL COST:$500-$2,000 to INDIRECT COST:In-house litigation BUDGETED: Yes X No file complaint, serve parties (should not exceed costs of items staff continues to address, annually) COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year APPROVED BY: County AttykeX OMB/Purchasing Risk Management DOCUMENTATION: Inclu Not Required DISPOSITION: AGENDA ITEM #, Revised 1/09 A i VeTcyes �v f RECEIVED NOV 16IN loci°a es sit PO Banc 6100 0 Key West, FL 33040.6100 www.KeVsEriergy.com UTILITY BOARD OF THE CITY OF KEY WEST November 10, 2010 Mr. Mark J. Rosch Executive Director Monroe County Land Authority 1200 Truman Avenue, Suite 207 Key West, FL 33040 RE: No Name Key - Electrical Service Easements Dear Mr. Rosch: Keys Energy Services (KEYS) is in the final design stages for the installation of electrical facilities to various residences on No Name Key. There are five lots in the Peterson Subdivision that KEYS will require utility easements. These lots are owned by Monroe County and Monroe County Comprehensive Plan Land Authority. My research Indicates that there currently exists a 1995 ingress/egress easement for the residences. The attached electrical utility easements that KEYS is requesting will limit the location of our electrical facilities to within the existing 1995 ingress/egress easement. Below is a list of the locations KEYS would need utility easements for: RE# Legal Description Ownership 00108130-002200 No Name Key PT Lot 5 (Lot 22 of an Monroe County unrecordedplat) 00108120-001500 No Name Key PT Lot 5 (Lot 15 of an Monroe County unrecordedplat) 00108120-001600 No Name Key PT Gov Lot 5 (Lot 16 of Monroe County an unrecordedplat) 00108130-002600 No Name Key PT Lot 5 ( Lot 26 of an Monroe County U R Plat 00108120-000800 No Name Key PT Lot 5 (lot 8) Monroe County Comprehensive Plan Land Authori Thanks again for your assistance on this matter. If you have any question please call me at 305-295-1042. Sincerely, -� 4rZ Dale Fnigan Director of Engineering Dale.Finiga n@KevsEnemv.com DF/ba c: L. Tejeda, General Manager & CEO J. Wetzler, Asst. General Manager & CFO M. Alfonso, Supervisor of Engineering Rle:ENG-150 Ervin A. Higgs, CFA Property Appraiser Monroe County, Florida Property Record View Alternate Key:1127671 Parcel ID: 00108130-002200 Ownership Details Melling Address: MONROE COUNTY CIO BOCC 1100 SIMONTON ST KEY WEST, FL 33040 Property Details office (305) 292-3420 fax (305) 292-3501 PC Code: 88 - COUNTIES OTHER THAN (PC/UST) Mlllage Group: 11 OH Affordable Housing: No Section -Township. 18-8630 Range: Property Location: VACANT LAND NO NAME KEY Legal Description: 18 till 30 NO NAME KEY PT LOT 5 (LOT 22 OF AN UNRECORDED PLAT) OR684-3 OR1090-1977178 OR584-3 OR1139-1547 OR1141-476 OR2052- 834/35 OR2124-74175 OR2352-394/95 Parcel Map 13 12 canal i t TU g • P0• .- 21 1 22 23 24 TORTUGA Exemptions Exemption Amount 14 - COUNTYLANDS 27,593.00 Land Details Land Use Code Frontage Depth Land Area 8900 - COUNTY 0 0 0.490.00 SF Parcel Value History Certified Roll Values. View Taxes for this Parcel. Roll Year Total Bldg Value Total Misc Improvement Value Total Land Value Total Just (Market) Value Total Assessed Value School Exempt Value School Taxable Value Ervin A. Higgs, CFA Property Appraiser Monroe County, Florida Property Record View Alternate Key: 8497121 Parcel ID: 00108120-001500 Ownership Details Mailing Address: COUNTY OF MONROE C/O BOCC 1100 SIMONTON ST KEY WEST, FL 33040 Property Details office (305) 292-3420 fax (305) 292-3501 PC Code: 86 - COUNTIES OTHER THAN (PCILIST) Mlllage Group: 11OH ARordable Housing: No Sectlon-Township- 18-88-30 Range. Property Location: VACANT LAND NO NAME KEY Legal Description: 16-66-30 NO NAME KEY PT LOT 5 (LOT 15 OF AN UNRECORDED PLAT) OR438-538 OR528-5331536-Q OR998-185211853 0R1130-159211593 OR2048-253154 OR2208-2214 Parcel Map 2-9 a I v in 108120.0013 a I I � I � I 1B f6 f4 I 13 w Exemptions Land Details Exemption Amount 14 - COUNTYLANDS 42,450.00 Land Use Code Frontage Depth Land Area M10C - RESIDENTIAL CANAL 0 0 8,490.00 SF Parcel Value History Certified Roll Values. View Taxes for this Parcel. Ervin A. Higgs, CFA Property Appraiser Monroe County, Florida Property Record View Alternate Key: 8497130 Parcel ID: 00108120-001600 Ownership Details Mailing Address: MONROE COUNTY C/O BOARD OF COUNTY COMMISSIONERS 1100 SIMONTON ST KEY WEST, FL 33040 Property Details office (305) 292-3420 fax (305) 292-3501 PC Code: W - COUNTIES OTHER THAN (PC/LIST) Millage Group: 110H Affordable Housing: No Sectlon-Township- 18.88-30 Range: Property Location: VACANT LAND NO NAME KEY Legal Description: 18.88-30 NO NAME KEY PT GOV LOT LOT 18 O N UNRECORDED PLAT) OR438-538 OR528-533/535-Q OR998-1887/1888 OR1174-1285 OR2148-1401 OR2156-1340 OR2236 483 /17 OR2415-2427/28 Parcel Map 25 ...—I• g I j N I I •'� 2i 1B 15 14 W A 1 35 50 r , L. ;. 108p30,0019 Exemptions Exemption Amount 14 - COUNTYLANDS 9,240.00 Land Details Land Use Code Frontage Depth Land Area M1 EC - END CANAL 0 0 9,240.00 SF Parcel Value History Certified Roil Values. View Taxes for this Parcel. Ervin A. Higgs, CFA Property Appraiser Monroe County, Florida Property Record View Alternate Key: 8497202 Parcel ID: 00108130-002600 Ownership Details Mailing Address: COUNTY OF MONROE C/o BOCC 1100 SIMONTON ST KEY WEST. FL 33040 Property Details office (305) 292-3420 fax (305) 292-3501 PC Code: as - COUNTIES OTHER THAN (PC/LIST) Mlllage Group: 11 OH Affordable No Housing: Section -Township- 18-88.30 Range: Property Location: VACANT LAND NO NAME KEY Legal Description: 18 88 30 NO NAME KEY PT LOT 5 (LOT 26 OF AN U/R PLAT) OR473-1036 OR528-538/39Q OR1052-2474175 OR1052-2473QC OR1058-2235/36 OR1257- 1490/91R/S OR1673-1899/000/C OR1673-1901/020/C OR1998-284/85 OR2225-17070/C OR2230-418/19 OR2371-458/57C Parcel Map -E. canal Peterson (Unrecorded) Peterson (Unrecorded) J a —] — * — , — *I—* — T "�— * — 'r , — , — 1320 LIV 108170 Exemptions Exemption Amount 14 - COUNTYLANDS 42,450.00 Land Details Land Use Code Frontage Depth Land Area M10C - RESIDENTIAL CANAL 0 0 8.490.00 SF Parcel Value History Certified Roll Values. View Taxes for this Parcel. Ervin A. Higgs, CFA Property Appraiser Monroe County, Florida Property Record View Alternate Key: 1127621 Parcel ID: 00108120-000800 Ownership Details Mailing Address: MONROE COUNTY COMPREHENSIVE PLAN LAND AUTHORITY 1200 TRUMAN AVE STE 207 KEY WEST. FL 3304D-7270 Property Details office (305) 292-3420 fax (305) 292-3501 PC Code: 88 - COUNTIES OTHER THAN (PC/LIST) Mlllage Group: 11 OH Affordable Housing: No Section-Township.Rangs: 18-86-30 Property Location: VACANT LAND NO NAME KEY Legal Description: 18 88 30 NO NAME KEY PT LOT 5 (LOT 8) OR656-744/5 OR789-1349Q/C OR1002-1806 OR135"13/140/C OR1810-2435/38 OR2102-1111/13 Parcel Map RIMINI 108120 12 1D 9 8 7 8 Cane( Exemptions Exemption Amount 14 - COUNTYLANDS 42.460.00 Land Details Land Use Code Frontage Depth Land Area M10C -RESIDENTIAL CANAL 0 0 8.490.00 SF Parcel Value History Certified Roll Values. Roll Year Total Bldg Value Total Mlse Improvement Value Total Land Value Total Just (Market) Value Total Assessed Value School Exempt Value School Taxable Value 2010 0 0 42,450 42.450 42,450 42.450 0 This instrument was prepared by Barbara Archer Keys Energy Services, on 11/10/10. EASEMENT KNOW ALL MEN BY THESE PRESENTS, that MONROE COUNTY hereinafter called grantor (s) do hereby grant an easement to the UTILITY BOARD OF THE CITY OF KEY WEST, FLORIDA, hereinafter called grantee, for public utility purposes, in, under, over and across the hereinafter described land, in the management, operation, maintenance, extension, construction and improvement, thereof, to wit: On the Island of No Name Key in Monroe County, Florida LOT 22 ALTERNATE KEY 1127671 PARCEL ID 00108130-002200 SEE PROPERTY DESCRIPTION ATTACHED HERETO AND MADE PART HEREOF AS EXHIBIT "A". A GENERAL EASEMENT FOR THE INSTALLATION AND MAINTENANCE OF ONE POLE, OVERHEAD WIRING AND ALL APPUTENANCES NECESSARY. KEYS WILL MAINTAIN THE LINE WITHIN THE BOUNDARYS OF THAT EASEMENT FOR INGRESS AND EGRESS OVER PROPERTY DESCRIBED AND IS RECORDED IN OFFICIAL RECORDS BOOK 1367, PAGES 1247 TO 1251 OF THE OFFICIAL RECORDS OF MONROE COUNTY, FLROIDA. TOGETHER WITH THE RIGHT OF INGRESS AND EGRESS OVER PROPERTY OF THE GRANTOR(S), SO AS TO AFFORD THE GRANTEE COMPLETE USE AND ENJOYMENT OF THIS EASEMENT, INCLUDING THE RIGHT TO CUT AND TRIM, FROM TIME TO TIME, TREES, BRUSH, OVER- HANGING BRANCHES AND OTHER NATURAL OBSTRUCTIONS ON THE ABOVE DESCRIBED LAND, WHICH MAY INJURE OR INTERFERE WITH THE FULL AND COMPLETE USE OF THE AFORESAID EASEMENT. This easement shall terminate if at any time its use is discontinued for years. IN WITNESS WHEREOF, these presents have been executed by the grantor(s) herein, all as of the day of A.D. 20 Signed, Sealed and Delivered in the presence of: (Witness) (Witness) STATE OF COUNTY OF (Seal) (Seal) On . before me the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be the person(s) whose names subscribed to the within Instrument and acknowledged that executed the same. SEAL Notary Public in and for said County And State EXHIBIT ""A" A parcel of land In part of Government Lot 5, Section 18, Township 66 South, Range 30 East, on No Name Key, Monroe County, Florida and being more particularly described by metes and bounds as follows: Commencing at the Northwest Corner of Government Lot 5, bear South, 343' feet; thence bear East 325' feet, to the POINT OF BEGINNING of the parcel of land hereinafter described; thence continue East, 60' feet; thence bear North, 141.50' feet to a canal; thence bear West, along said canal 60' feet, thence bear South 141.50' back to the POINT OF BEGINNING, subject to a 25' foot easement on the South side. (Also known as Lot 22 of an unrecorded Plat of the subject property) This Instrument was prepared by Barbara Archer Keys Energy Services, an 11/10/10. EASEMENT KNOW ALL MEN BY THESE PRESENTS, that MONROE COUNTY hereinafter called grantor (s) do hereby grant an easement to the UTILITY BOARD OF THE CITY OF KEY WEST, FLORIDA, hereinafter called grantee, for public utility purposes, in, under, over and across the hereinafter described land, in the management, operation, maintenance, extension, construction and improvement, thereof, to wit: On the Island of No Name Key in Monroe County, Florida LOT 15 ALTERNATE KEY 8497121 PARCEL ID 00108120-001500 SEE PROPERTY DESCRIPTION ATTACHED HERETO AND MADE PART HEREOF AS EXHIBIT "A". A GENERAL EASEMENT FOR THE INSTALLATION AND MAINTENANCE OF ONE POLE, OVERHEAD WIRING AND ALL APPUTENANCES NECESSARY. KEYS WILL MAINTAIN THE LINE WITHIN THE BOUNDARYS OF THAT EASEMENT FOR INGRESS AND EGRESS OVER PROPERTY DESCRIBED AND IS RECORDED IN OFFICIAL RECORDS BOOK 1367, PAGES 1247 TO 1251 OF THE OFFICIAL RECORDS OF MONROE COUNTY, FLROIDA. TOGETHER WITH THE RIGHT OF INGRESS AND EGRESS OVER PROPERTY OF THE GRANTOR(S), SO AS TO AFFORD THE GRANTEE COMPLETE USE AND ENJOYMENT OF THIS EASEMENT, INCLUDING THE RIGHT TO CUT AND TRIM, FROM TIME TO TIME, TREES, BRUSH, OVER- HANGING BRANCHES AND OTHER NATURAL OBSTRUCTIONS ON THE ABOVE DESCRIBED LAND, WHICH MAY INJURE OR INTERFERE WITH THE FULL AND COMPLETE USE OF THE AFORESAID EASEMENT. This easement shall terminate if at any time its use is discontinued for years. IN WITNESS WHEREOF, these presents have been executed by the grantor(s) herein, all as of the day of A.D. 20 Signed, Sealed and Delivered in the presence of: (Witness) (Witness) STATE OF. COUNTY OF (Seal) (Seal) On , before me the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be the person(s) whose names subscribed to the within instrument and acknowledged that executed the same. SEAL Notary Public in and for said County And State EXHIBIT ""A" A parcel of land in part of Government Lot 5, Section 18, Township 66 South, Range 30 East, on No Name Key, Monroe County, Florida and being more particularly described by metes and bounds as follows: Commencing at the Northwest Comer of Government Lot 5, bear East, 85' feet to the POINT OF BEGINNING of the parcel of land hereinafter described; thence continue East, 60' feet; thence bear South, 141.50' feet to a canal; thence bear West, along said canal 60' feet, thence bear North 141.50' back to the POINT OF BEGINNING, subject to a 25' foot easement on the North side. (Also known as Lot 15 of an unrecorded Plat of the subject property) This Instrument was prepared by Barbara Archer Keys Energy Services, on 11/10/10. EASEMENT KNOW ALL MEN BY THESE PRESENTS, that MONROE COUNTY hereinafter called grantor (s) do hereby grant an easement to the UTILITY BOARD OF THE CITY OF KEY WEST, FLORIDA, hereinafter called grantee, for public utility purposes, in, under, over and across the hereinafter described land, In the management, operation, maintenance, extension, construction and improvement, thereof, to wit: On the Island of No Name Key in Monroe County, Florida LOT 16 ALTERNATE KEY 8497130 PARCELID 00108120-001600 SEE PROPERTY DESCRIPTION ATTACHED HERETO AND MADE PART HEREOF AS EXHIBIT "A". A GENERAL EASEMENT FOR THE INSTALLATION AND MAINTENANCE OF ONE POLE, OVERHEAD WIRING AND ALL APPUTENANCES NECESSARY. KEYS WILL MAINTAIN THE LINE WITHIN THE BOUNDARYS OF THAT EASEMENT FOR INGRESS AND EGRESS OVER PROPERTY DESCRIBED AND RECORDED IN OFFICIAL RECORDS BOOK 1367, PAGES 1247 TO 1251 OF THE OFFICIAL RECORDS OF MONROE COUNTY, FLROIDA. TOGETHER WITH THE RIGHT OF INGRESS AND EGRESS OVER PROPERTY OF THE GRANTOR(S), SO AS TO AFFORD THE GRANTEE COMPLETE USE AND ENJOYMENT OF THIS EASEMENT, INCLUDING THE RIGHT TO CUT AND TRIM, FROM TIME TO TIME, TREES, BRUSH, OVER- HANGING BRANCHES AND OTHER NATURAL OBSTRUCTIONS ON THE ABOVE DESCRIBED LAND, WHICH MAY INJURE OR INTERFERE WITH THE FULL AND COMPLETE USE OF THE AFORESAID EASEMENT. This easement shall terminate if at any time its use is discontinued for years. IN WITNESS WHEREOF, these presents have been executed by the grantor(s) herein, all as of the day of A.D. 20 Signed, Sealed and Delivered in the presence of: (Witness) (Witness) STATE OF COUNTY OF (Seal) (Seal) On before me the undersigned, a Notary Public In and for said County and State, personally appeared known to me to be the person(s) whose names subscribed to the within instrument and acknowledged that executed the same. SEAL Notary Public in and for said County And State EXHIBIT "A" A parcel of land in part of Government Lot 5, Section 18, Township 66 South, Range 30 East, on No Name Key, Monroe County, Florida and being more particularly described by metes and bounds as follows: Commencing at the Northwest Comer of Government Lot 5, bear East, 25' feet to the POINT OF BEGINNING of the parcel of land hereinafter described; thence continue East 60' feet; thence bear South, 141.50' feet to a canal; thence bear West, along said canal, 35' feet; thence bear South, along said canal, 30' feet; thence bear West, 25' feet; thence bear North, 171.50' feet, back to the POINT OF BEGINNING, subject, to a 25' foot easement on the North side. (Also known as Lot 16 of an unrecorded Plat of the subject property) This Instrument was prepared by Barbara Archer Keys Energy Services, on 11/10/10. EASEMENT KNOW ALL MEN BY THESE PRESENTS, that MONROE COUNTY hereinafter called grantor (s) do hereby grant an easement to the UTILITY BOARD OF THE CITY OF KEY WEST, FLORIDA, hereinafter called grantee, for public utility purposes, in, under, over and across the hereinafter described land, in the management, operation, maintenance, extenslon, construction and improvement, thereof, to wit: On the Island of No Name Key in Monroe County, Florida LOT 26 — ALTERNATE KEY 8497202 PARCEL ID 00108130-002600 SEE PROPERTY DESCRIPTION ATTACHED HERETO AND MADE PART HEREOF AS EXHIBIT "A". A GENERAL EASEMENT FOR THE INSTALLATION AND MAINTENANCE OF ONE POLE, OVERHEAD WIRING AND ALL APPUTENANCES NECESSARY. KEYS WILL MAINTAIN THE LINE WITHIN THE BOUNDARYS OF THAT EASEMENT FOR INGRESS AND EGRESS OVER PROPERTY DESCRIBED AND IS RECORDED IN OFFICIAL RECORDS BOOK 1367, PAGES 1247 TO 1251 OF THE OFFICIAL RECORDS OF MONROE COUNTY, FLROIDA. TOGETHER WITH THE RIGHT OF INGRESS AND EGRESS OVER PROPERTY OF THE GRANTOR(S), SO AS TO AFFORD THE GRANTEE COMPLETE USE AND ENJOYMENT OF THIS EASEMENT, INCLUDING THE RIGHT TO CUT AND TRIM, FROM TIME TO TIME, TREES, BRUSH, OVER- HANGING BRANCHES AND OTHER NATURAL OBSTRUCTIONS ON THE ABOVE DESCRIBED LAND, WHICH MAY INJURE OR INTERFERE WITH THE FULL AND COMPLETE USE OF THE AFORESAID EASEMENT. This easement shall terminate If at any time its use is discontinued for years. IN WITNESS WHEREOF, these presents have been executed by the grantor(s) herein, all as of the day of A.D. 20 Signed, Sealed and Delivered In the presence of: (Witness) (Witness) STATE OF COUNTY OF (Seal) (Seal) On , before me the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be the person(s) whose names subscribed to the within instrument and acknowledged that executed the same. SEAL Notary Public In and for said County And State EXHIBIT "An A parcel of land in part of Government Lot 5, Section 18, Township 66 South, Range 30 East, on No Name Key, Monroe County, Florida and being more particularly described by metes and bounds as follows: Commencing at the Northwest Comer of Government Lot 5, bear South, 343' feet; thence bear East 565' feet to the POINT OF BEGINNING of the parcel of land thereinafter described; thence continue East, 60' feet; thence North 141.50' feet to a canal; thence bear West, along said canal 60' feet thence bear South 141.50' feet, back to the POINT OF BEGINNING. Subject to a 25' foot easement on the South side (Also known as Lot 26 of an unrecorded Plat of the subject property) This instrument was prepared by Barbara Archer Keys Energy Services, on 11/10/10. EASEMENT KNOW ALL MEN BY THESE PRESENTS, that MONROE COUNTY COMPREHENSIVE PLAN LAND AUTHORITY hereinafter called grantor (s) do hereby grant an easement to the UTILITY BOARD OF THE CITY OF KEY WEST, FLORIDA, hereinafter called grantee, for public utility purposes, in, under, over and across the hereinafter described land, in the management, operation, maintenance, extension, construction and improvement, thereof, to wit: On the Island of No Name Key in Monroe County, Florida LOT 8 ALTERNATE KEY 1127621 PARCEL ID 00108120-000800 SEE PROPERTY DESCRIPTION ATTACHED HERETO AND MADE PART HEREOF AS EXHIBIT "A". A GENERAL EASEMENT FOR THE INSTALLATION AND MAINTENANCE OF ONE POLE, OVERHEAD WIRING AND ALL APPUTENANCES NECESSARY. KEYS WILL MAINTAIN THE LINE WITHIN THE BOUNDARYS OF THAT EASEMENT FOR INGRESS AND EGRESS OVER PROPERTY DESCRIBED AND IS RECORDED IN OFFICIAL RECORDS BOOK 1367, PAGES 1247 TO 1251 OF THE OFFICIAL RECORDS OF MONROE COUNTY, FLROIDA. TOGETHER WITH THAT EASEMENT FOR INGRESS AND EGRESS OVER PROPERTY DESCRIBED AND IS RECORDED IN OFFICIAL RECORDS BOOK 2047, PAGE 2469 OF THE OFFICIAL RECORDS OF MONROE COUNTY, FLORIDA TOGETHER WITH THE RIGHT OF INGRESS AND EGRESS OVER PROPERTY OF THE GRANTOR(S), SO AS TO AFFORD THE GRANTEE COMPLETE USE AND ENJOYMENT OF THIS EASEMENT, INCLUDING THE RIGHT TO CUT AND TRIM, FROM TIME TO TIME, TREES, BRUSH, OVER- HANGING BRANCHES AND OTHER NATURAL OBSTRUCTIONS ON THE ABOVE DESCRIBED LAND, WHICH MAY INJURE OR INTERFERE WITH THE FULL AND COMPLETE USE OF THE AFORESAID EASEMENT. This easement shall terminate if at any time its use is discontinued for years. IN WITNESS WHEREOF, these presents have been executed by the grantor(s) herein, all as of the day of A.D. 20 Signed, Sealed and Delivered in the presence of: (Witness) (Witness) STATE OF COUNTY OF (Seal) (Seal) On . before me the undersigned, a Notary Public In and for said County and State, personally appeared known to me to be the person(s) whose names subscribed to the within instrument and acknowledged that executed the same. SEAL Notary Public in and for said County And State EXHIBIT ""A" A parcel of land in part of Government Lot 5, Section 18, Township 66 South, Range 30 East, on No Name Key, Monroe County, Florida and being more particularly described by metes and bounds as follows: Commencing at the Northwest Comer of Government Lot 5, bear East, 505' feet to the POINT OF BEGINNING of the parcel of land hereinafter described; thence continue East 60' feet; thence bear South, 141.50' feet to a canal; thence bear West, along said canal, 60' feet; thence bear North, 141.50' feet, back to the POINT OF BEGINNING, subject to a 25' foot Easement on the North side. (Also known as Lot 8 of an unrecorded Plat of the subject property) ORDINANCE NO. 020 -2008 AN ORDINANCE AMENDING SEC. 9.5-258 OF THE MONROE COUNTY CODE TO ALLOW THE PROVISION OF CENTRAL WASTEWATER SERVICE AND SUPPORT UTILITIES TO DEVELOPED PROPERTIES LOCATED WITHIN THE COASTAL BARRIER RESOURCES SYSTEM; PROVIDING FOR SEVERABILITY; PROVIDING FOR THE REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR THE INCORPORATION INTO THE MONROE COUNTY CODE; AND DIRECTING THE CLERK OF THE BOARD TO FORWARD A CERTIFIED COPY OF THIS ORDINANCE TO THE FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS AND PROVIDING AN EFFECTIVE DATE WHEREAS, the Coastal Barrier Resources Act (CBRA) of 1982 established the Coastal Barrier Resources System (CBRS) to restrict the federally subsidized development of coastal barrier areas (SEE 16 U.S.C. 3504(a)(1)); and WHEREAS, Monroe County has 22 designated units of the CBRS identified by the U.S. Fish an Wildlife Service; and WHEREAS, Objective 102.8 of the Monroe County Year 2010 Comprehensive Plan states: "Monroe County shall take actions to discourage private development in areas designated as units of the Coastal Barrier Resources System [91-5.006(3)(b)4]' ; and WHEREAS, Policy 102.8.5 of the Monroe County Year 2010 Comprehensive Plan states: "Upon adoption of the Comprehensive Plan, Monroe County shall initiate efforts to discourage the extension of facilities and services provided by the Florida Keys Aqueduct Authority and private providers of electricity and telephone services to CBRS units"; and WHEREAS, on December 18, 2001, the Board of County Commissioners adopted Ordinance No. 043-2001, creating Section 9.5-258 of the Monroe County Code which established a Coastal Barrier Resources System Overlay District, the purpose of which is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to or through lands designated as a unit of the Coastal Barrier Resources System, and WHEREAS, pursuant to Chapter 99-395, Laws of Florida, Monroe County has been mandated by the State of Florida to provide a centralized sewer system by 2010 as a means of improving near shore water quality within the Florida Key; and WHEREAS, on June 18, 2008, the Growth Management Staff was directed by the Board of County Commissioners to amend the comprehensive plan and land development regulations to reword the prohibition on utilities such that the focus and priority be placed on wastewater first and any discussion of electric or any other utility, other than those required to efficiently support a central wastewater collection system, be deferred until the wastewater goal is accomplished; and Page 1 of 3 Initials W:\GROWTH MANAGEMENTIBOCC\GMD Agenda Items\20080917\CBRS LDR Amend\Adopted Wastewater Ordinance with changes from BOCC and no underlines or strikethroughs - LDR (Amended).doc WHEREAS, during a regular meeting held on July 23, 2008, the Monroe County Planning Commission conducted a public hearing on the proposed text, and recommended approval of the proposed text; and WHEREAS, the Monroe County Board of County Commissioners held a public hearing on the proposed amendments to the Monroe County Code submitted by the Monroe County Planning Department; and WHEREAS, it is the desire of the Monroe County Board of County Commissioners that the following amendment to the Monroe County Code be approved, adopted and sent to the state land planning agency for approval; NOW THEREFORE; BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Section 1. Chapter 9.5, Article VII Division 2 is hereby amended as follows: Sec. 9.5-258. Coastal barrier resources system overlay district (a) Purpose: The purpose of the Coastal Barrier Resources System Overlay District is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to undeveloped properties within a unit of the Coastal Barrier Resources System. (b) Application: The Coastal Bander Resources System Overlay District shall be overlaid on all areas, except for Stock Island, within federally designated boundaries of a Coastal Barrier Resources System Unit on current Flood Insurance Rate Maps approved by the Federal Emergency Management Agency, which are hereby adopted by reference and declared part of this chapter. Within this overlay district, the transmission and/or collection lines of the following types of public utilities shall be prohibited from extension or expansion only to undeveloped properties located within a CBRS Unit: central wastewater treatment collection systems; potable water, electricity, and telephone and cable. This prohibition shall not preclude the provision of those utilities required to provide central sanitary wastewater collection and treatment nor the maintenance and upgrading of existing public utilities in place on the effective date of this ordinance and shall not apply to wastewater nutrient reduction cluster systems. Section 2. If any section, subsection, sentence, clause, item, change, or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such validity. Section 3. All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed to the extent of said conflict. Section 4. This ordinance shall be transmitted by the Planning Department to the Department of Community Affairs to determine the consistency of this ordinance with the Florida Statutes. Page 2 of 3 Initials W:\GROWTH MANAGEMENT\BOCC\GMD Agenda Items\20080917\CBRS LDR Amend\Adopted Wastewater Ordinance with changes from BOCC and no underlines or strikethroughs - LDR (Amended).doc Section 5. This ordinance shall be filed in the Office of the Secretary of State of Florida, but shall not become effective until a notice is issued by the Department of Community Affairs or Administrative Commission approving the ordinance. Section 6. The Director of Growth Management is hereby directed to forward a copy of this ordinance to the Municipal Code Corporation for the incorporation into the Monroe County Code of Ordinances once this ordinance is in effect. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a regular meeting held on the 17th day of September, A.D., 2008. Mayor Mario DiGennaro 'Yes Mayor Pro Tern Charles "Sonny McCoy Yes Commissioner Sylvia Murphy No Commissioner George Neugent NO Commissioner Dixie Spehar Yes BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA BY } _ _ 1 Mayor Mario DiGennaro lay }}.� • 4 � A m _�; py��,,[: 4� : O l _ � �� • ram• �E ANNY KOLHAGE, CLERK ram' c N ca co DEPUTY CLERK EMONROE COU TTORNEY PP ED 5 T FORW Page 3 of 3 Initials W:\GROWTH MANAGEMEN RBOCC\GMD Agenda Items\20080917\CBRS LDR Amend\Adopted Wastewater Ordinance with changes from BOCC and no underlines or strikethroughs - LDR (Amended).doc MONROE COUNTY COURTHOUSE 500 WHITEHEAD STREET, SUITE 101 KEY WEST, FLORIDA 33040 TEL. (305) 2944641 FAX (305) 295-3663 BRANCH OFFICE: MARATHON SUB COURTHOUSE 3117 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 TEL. (305) 289-6027 FAX (305) 289-1745 CLERK OF THE CIRCUIT COURT MONROE COUNTY www.clerk-of-the-court.com Ms. Liz Cloud, Program Administrator Administrative Code & Weekly R.A. Gray Building 500 S Bronough Street Tallahassee FL 32399-0250 Dear Ms. Cloud, October 14, 2008 BRANCH OFFICE: PLANTATION KEY GOVERNMENT CENTER 88820 OVERSEAS HIGHWAY PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 FAX (305) 852-7146 ROTH BUILDING 50 HIGfi POINT ROAD PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 FAX (305) 853-7440 Via Certified Mail 70051160 0000 38412082 Enclosed is a certified copy of Ordinance No. 020-2008 amending Section 9.5-258 of the Monroe County Code to allow the provision of Central Wastewater Service and Support Utilities to developed properties located within the Coastal Barrier Resources System; Providing for severability; Providing for the repeal of all Ordinances inconsistent herewith; Providing for the incorporation into the Monroe County Code; and directing the Clerk of the Board to forward a certified copy of this Ordinance to the Florida Department of Community Affairs and providing an effective date. This Ordinance was adopted by the Monroe County Board of County Commissioners at a Regular Meeting, held in formal session, on September 17, 2008. Please file for record. Should you have any questions please feel free to contact me at (305) 295-3130. Danny L. Kolhage Clerk of the Circuit Court and ex officio Clerk to the Board of County Commissioners by: Pamela G. Hancock, D.C. cc: Via E-Mail to the following: Growth Management CountyAttorney BOCC File ■ Complete items 1, 2, and 3. Also complete item 4 If Restricted Del rery Is desired. ■ Print your name and address on the revarea so that we can return the card to you. ■ Attach this card to the back of the mallpiece, or on the front If space permits. t. ArHoW Addremed to: A. A. s�tum Von . CF STATkm p nde, esm e. Reoeived by (ftm"g Dam or Delivery D. is delivery address dnmre VAS it YES. ertter No Ms. Liz Cloud, Program Admin. Administrative Code & Weekly R.A. Gray Building 11 500 S Bronough Street 3. Servioe TAW Tallahassee FL 32399-0250 Mertifled Mail 0 F Map 0 Rsgletered E3 Retum Reoelptfor Mwdundim ❑ Insured Md 13 C.O.D. Co 4. Restricted DelNery7 Ifte Feel) 13 Yea 2. Mcfe Number 7005 1160 0000 3841 2082 MWMfGr 5om 8arvwa mbar) Ps Form 3811, February 2004 Domestic Retum Receipt ur2se54)2-Wte40 I`LI"'"(If I I It II I I'' I I I I I I I I"' I I"' It I""I I `I I"`11"I 086T—Th0££ U 398M 48M 086T xoS Od 31000UBg •d :u33V 80T3;0 5,3110TO .S3uno0 80auoN xoq slLD ul b+dlZ Pue 'sseuppe 'eweu most 3upd eseeld :JepuBS If 0 L-J 'oN PUUGd Sdsn Pled 688:1 V egad Liew SS13I0-W►Ll 33MGS TrlSod MVIS aRUNn CHARLIE CRIST Governor October 16, 2008 STATE LIBRARY AND ARCHIVES OF FLORIDA Honorable Danny L. Kolhage Clerk of Circuit Court Monroe County 500 Whitehead Street, Suite 101 Key West, Florida 33040 Attention: Isabel C. DeSantis, Deputy Clerk Dear Mr. Kolhage: KURT S. BROWNING Secretary of State IV M, -, c CQ 1 C7 -,) Pursuant to the provisions of Section 125.66, Florida Statutes, this will acknowledge receipt of your letter dated October 14, 2008 and certified copy of Monroe County Ordinance No. 020-2008, which was filed in this office on October 16, 2008. Sincerely, te; a� aK Liz Cloud Program Administrator LC/srd DIRECTOR'S OFFICE &A. Gray Building - 500 South Bronough Street - Tallahassee, Florida 32399-0250 850.245.6600 - FAX: 850.245.6735 - Too: 850.922.4085 - http://dUdoa.rtateJLus COMMUNITY DEVELOPMENT STATE LIBRARY OF FLORIDA STATE ARCHIVES OF FLORIDA 850.245.6600 - FAX: 950.245,6643 850.245.6600 - FAX: 850.245.6744 850.245.6700 - FAX: 950.498.4994 LEGISLATIVE LIBRARY SERVICE RECORDS MANAGEMENT SERVICES ADMINISTRATIVE CODE AND WEEKLY 950.488.2912 9 FAX: 950.499.9879 850.245.6750 9 FAX: 950.245.6795 850.245.6270 - FAX: 850.245.6282 2902 ThgE 0000 0922 SOUL DCA Final Order No.: DCAO&OR-352 STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS In re: MONROE COUNTY LAND DEVELOPMENT REGULATIONS ADOPTED BY MONROE COUNTY ORDINANCE NO.020-2008 FINAL ORDER N 71 _ C3 C7 i C." rn ccn Y o The Department of Community Affairs (the "Department") hereby issues its Final Order, pursuant to §§ 380.05(6), Fla. Stat., and § 380.0552(9), Fla. Slat. (2007), rejecting a land development regulation adopted by a local government within the Florida Keys Area of Critical State Concern as set forth below. FINDINGS OF FACT 1. The Florida Keys Area is a statutorily designated area of critical state concern, and Monroe County is a local government within the Florida Keys Area. 2. On October 17, 2008, the Department received for review Monroe County (County) Ordinance No. 020-2008 ("Ord. 020-2008"), adopted by the County on September 17, 2008. 3. The purpose of the Ordinance is to amend Section 9.5-258 of the Monroe County Code to allow the provision of wastewater service and support utilities to developed properties located within the Coastal Barrier Resources System (CBRS) Overlay. 4. The Coastal Barrier Resources Act (CBRA) of 1982 established the CBRS to restrict the federally subsidized development of coastal barrier areas. See 16 U.S.C. 3504(a)(1). 5. On December 18, 2001, the Monroe County Board of County Commissioners adopted Ordinance No. 043-2001, creating Section 9.5-258 of the Monroe County Code which established the CBRS Overlay District, the purpose of which is to implement the policies of the Comprehensive Plan by prohibiting the extension and expansion of specific types of public DCA Final Order No.: DCA08-OR-352 utilities to or through lands designated as a unit of the CBRS. 6. On June 18, 2008, the Monroe County Board of County Commissioners directed the Growth Management Staff to amend the Comprehensive Plan and Land Development Regulations to reword the prohibition on utilities such that the focus and priority be placed on wastewater first and any discussion of electric or any other utility, other than those required to efficiently support a central wastewater collection system, be deferred until the wastewater goal is accomplished. 7. Section 163.3202, Florida Statutes, however, requires that land development regulations contain specific and detailed provisions necessary to implement the adopted comprehensive plan which discourages the extension of facilities and utility services to CBRS units and prohibits public expenditures for new or expanded facilities in areas designated as units of the CBRS except for expenditures necessary for public health and safety. While the County's Comprehensive Plan does not prohibit the extension of facilities and services into CBRS units, Ordinance 020-2008 conflicts with the County's policies discouraging both private and public investments in CBRS units for new or expanded facilities. 8. A comprehensive plan amendment is necessary to resolve this conflict and clarify that the extension of facilities and services to specific areas in CBRS units, including No Name Key, designated as Hot Spots for central sewer may be necessary for water quality improvement as well as for financial feasibility and economies of scale in construction of regional wastewater plants. 9. The provision of central wastewater treatment and collection facilities through or to CBRS areas to developed properties may be one option to satisfy the treatment standard requirements of Section 6 of Chapter 99-395 Laws of Florida. However, sufficient data and analysis has not been provided to address the capital cost allocation issues associated with the provision of central wastewater treatment and collection systems, and where needed, the cost for the provision of electrical service to the CBRS units DCA Final Order No.: DCA08-OR-352 10. Monroe County staff has indicated that the County will be moving forward with a Comprehensive Plan amendment to address any conflicts with the Comprehensive Plan in the County's first amendment cycle in 2009. Although the Department is encouraged by the County's efforts to provide central sewer to No Name Key, since the current wastewater construction schedule does not anticipate completion of the new facility for several years, the County has an opportunity to provide an analysis of the magnitude of the additional public facility costs. 11. If the intent of the County is to provide wastewater only to No Name Key within the CBRS units, the Department would recommend the County first adopt any necessary Comprehensive Plan amendments and subsequently revise Ordinance 020-2008 to target its application to No Name Key. CONCLUSIONS OF LAW 12. The Department is required to approve or reject land development regulations that are enacted, amended, or rescinded by any local government in the Florida Keys Area of Critical State Concern. § 380.05(6), Fla. Stat., and § 380.0552(9), Fla. Stat. (2007). 13. Monroe County is a local government -within the Florida Keys Area of Critical State Concern. § 380.0552, Fla. Stat. (2007) and Rule 28-29.002 (superseding Chapter 27F-8), Fla. Admin. Code. 14. "Land development regulations" include local zoning, subdivision, building, and other regulations controlling the development of land. § 380.031(8), Fla. Stat. (2007). The regulations adopted by Ord. 020-2008 are land development regulations. 15. All land development regulations enacted, amended, or rescinded within an area of critical state concern must be consistent with the Principles for Guiding Development (the "Principles") as set forth in § 380.0552(7), Fla. Stat. See Rathkamp v. Department of Community Affairs, 21 F.A.L.R. 1902 (Dec. 4, 1998), aff d, 740 So. 2d 1209 (Fla. 3d DCA 1999). The Principles are construed as a whole and no specific provision is construed or applied in isolation from the other provisions. whole. DCA Final Order No.: DCAOB-OR-352 16. Ord. 020-2008 fails to promote and further the following Principles: (a) To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. (b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. (h) To protect the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major public investments, including: 1. The Florida Keys Aqueduct and water supply facilities; 2. Sewage collection and disposal facilities; 3. Solid waste collection and disposal facilities; 4. Key West Naval Air Station and other military facilities; 5. Transportation facilities; 6. Federal parks, wildlife refuges, and marine sanctuaries; 7. State parks, recreation facilities, aquatic preserves, and other publicly owned properties; 8. City electric service and the Florida Keys Electric Co- op; and 9. Other utilities, as appropriate. (i) To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. 17. Ord. 020-2008 is inconsistent with the Principles for Guiding Development as a WHEREFORE, IT IS ORDERED that Ord. 020-2008 is found to be inconsistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is hereby REJECTED. This Order becomes effective 21 days after publication in the Florida Administrative Weekly unless a petition is filed as described below. 4 DCA Final Order No.: DCA09-OR 352 DONE AND ORDERED in Tallahassee, Florida. 0 a-, _L C S GAUTHIER, AICP Director, Division of Community Planning Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 NOTICE OF ADMINISTRATIVE RIGHTS ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING ACTION. DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF MATERIAL FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE PROCEEDING, YOU ARE ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING. IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED ISSUE OF MATERIAL FACT CONTAINED IN THE DEPARTMENT'S ACTION, THEN THE ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED PURSUANT TO SECTIONS 120.569 AND 120.57(2) FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN INFORMAL ADMINISTRATIVE PROCEEDING, YOU MAY BE REPRESENTED BY COUNSEL OR BY A QUALIFIED REPRESENTATIVE, AND YOU MAY PRESENT WRITTEN OR ORAL EVIDENCE IN OPPOSITION TO THE DEPARTMENT'S ACTION OR REFUSAL TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS CHOSEN TO JUSTIFY ITS ACTION OR INACTION. IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE DMSION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND 120.57(l), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON ALL THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT REBUTTAL EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS, AND TO FILE EXCEPTIONS TO ANY RECOMMENDED ORDER. DCA Final Order No.: DCA08-OR-352 IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF COMMUNITY AFFAIRS A WRITTEN PLEADING ENTITLED, "PETITION FOR ADMINISTRATIVE PROCEEDINGS" WITHIN 21 CALENDAR DAYS OF PUBLICATION OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECEIVED BY THE AGENCY CLERK, IN THE DEPARTMENT'S OFFICE OF GENERAL COUNSEL, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100. THE PETITION MUST MEET THE FILING REQUIREMENTS IN RULE 28- 106.104(2), FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH RULE 28-106.301, FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH RULE 28-106.201(2), FLORIDA ADMINISTRATIVE CODE. A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY RULE 28-106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSING MEDIATION DOES NOT AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING. YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE PROCEEDING OR A FORMAL HEARING IF YOU DO NOT FILE A PETITION WITH THE AGENCY CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL ORDER CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with the undersigned designated Agency Clerk, and that true and t copies have been furnished to the persons listed below by the method indicated this 19,Mday of December, 2008. By U.S. Mail: Honorable Mario DiGennaro Mayor of Monroe County Florida Keys Marathon Airport 9400 Overseas Highway, Suite 210 Key West, Florida 33050 6 DCA Final Order No.: DCA08-OR-352 Danny L. Kolhage Clerk to the Board of County Commissioners 500 Whitehead Street Key West, Florida 33040 Andrew Trivette Growth Management Director 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 By Hand Delivery or Interagency Mail: Craig Diamond, Bureau of State Planning, DCA Tallahassee Rebecca Jetton, ACSC Administrator, DCA Tallahassee Richard E. Shine, Assistant General Counsel, DCA Tallahassee Final Order No. DCA09-OR 106 STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS ROBERT REYNOLDS, Petitioner, VS. DEPARTMENT OF COMMUNITY AFFAIRS, an agency of the State of Florida, Respondent, MONROE COUNTY ORDINANCE NO.020-2008 FINAL ORDER OF DISMISSAL -n o a o r rn C .> T11 -n tn� .;:;!-r- + c o CD n;x rn rn Petitioner ROBERT REYNOLDS commenced this proceeding on December 16, 2008, by filing a Petition with the DEPARTMENT OF COMMUNITY AFFAIRS for an Administrative Hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. Petitioner challenges DCA Final Order No. DCA08-OR-352 finding Monroe County Ordinance No. 020-2008 inconsistent with Section 380.0552(7), Florida Statutes, the Principles for Guiding Development of the Florida Keys Area of Critical State Concern. On February 18, 2009, the County adopted Ordinance No. 003-2009, which repealed in its entirety Ordinance No. 020-2008. By repealing the Ordinance pursuant to which the disputed land development regulation was adopted, the County eliminated the compliance issue in this matter. Thereafter, on April 22, 2009, the Department issued DCA Final Order No. DCA09-OR- 107 vacating DCA Final Order No. DCA08-OR-352. A copy of DCA Final Order No. DCA09- OR-107 is attached hereto as Exhibit A. A copy of Ordinance No. 003-2009 is attached hereto as 1 Final Order No. DCA09-OR-106 Exhibit B. ORDERED that this proceeding be, and hereby is, dismissed and the Agency Clerk is hereby authorized and directed to close the file in this proceeding. DONE AND ORDERED in Tallahassee, Florida. Shaw P. Stiller, deneh&eounsel DEPARTMENT OF COMMUNITY AFFAIRS NOTICE OF RIGHTS EACH PARTY IS HEREBY ADVISED OF ITS RIGHT TO SEEK JUDICIAL REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. 2 Final Order No. DCA09-OR-106 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned designated Agency Clerk, and that true and ffjj��9���ct copies have been furnished to the persons listed below in the matter described, on this �LF'Say of May, 2009. Paula Ford Agency Clerk VIA U.S. MAIL: The Honorable George Neugent Mayor, Monroe County 25 Ship's Way Big Pine Key, Florida 33043 James S. Mattson, Esq. James S. Mattson, P.A. P.O. Box 586 Key Largo, Florida 33037 Andrew M. Tobin, Esq. Andrew M. Tobin, P.A. P.O. Box 620 Tavernier, Florida 33070 Susan M. Grimsley, Esq. Assistant County Attorney 1111 12`h Street, Suite 408 Key West, Florida 33040 Danny L. Kolhage Clerk of the Board of County Commissioners Monroe County 500 Whitehead Street Key West, Florida 33040 VIA HAND DELIVERY: Richard E. Shine, Esq. Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399-2100 DCA Final Order No.: DCA09-OR-107 STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS In re: MONROE COUNTY LAND DEVELOPMENT REGULATIONS ADOPTED BY MONROE COUNTY ORDINANCE NO.003-2009 ORDER APPROVING MONROE COUNTY ORDINANCE 003-2009, AND VACATING DCA FINAL ORDER NO.: DCA08-OR-352 The Department of Community Affairs (the "Department") hereby issues its Order Approving Monroe County Ordinance 003-2009 rescinding and repealing Ordinance 20-2008, and Vacating DCA Final Order No.: DCA08-OR-352. FINDINGS OF FACT 1. The Florida Keys Area is a statutorily designated area of critical state concern, and Monroe County is a local government within the Florida Keys Area. 2. On October 17, 2008, the Department received for review Monroe County (County) Ordinance No. 020-2008 ("Ord. 020-2008"), adopted by the County on September 17, 2008. 3. On December 12, 2008, the Department issued DCA Final Order No.: DCA-OR- 352 rejecting County Ordinance No. 020-2008 as inconsistent with § 380.0552(7), Fla. Stat., the Principles for Guiding Development in an Area of Critical State Concern. 4. On February 18, 2009, the Monroe County Board of County Commissioners adopted Ordinance No. 003-2009, rescinding and repealing in its entirety Ordinance No. 020- 2008 concerning a land development regulation for the provision of central sanitary sewer and other utilities to be provided to properties within the Coastal Barrier Resource System units within the jurisdiction of Monroe County. Ordinance No. 003-2009 states that the Board of County Commissioners is following a process to consider and adopt a comprehensive plan amendment DCA Final Order No.: DCA09-OR-107 same subject area as Ordinance No. 020-2008. CONCLUSIONS OF LAW 6. The Department is required to approve or reject land development regulations that are enacted, amended, or rescinded by any local government in the Florida Keys Area of Critical State Concern. § 380.05(6), Fla. Stat., and § 380.0552(9), Fla. Stat. (2008). 7. Monroe County is a local government within the Florida Keys Area of Critical State Concern. § 380.0552, Fla. Stat. (2008) and Rule 28-29.002 (superseding Chapter 27F-8), Fla. Admin. Code. 8. "Land development regulations" include local zoning, subdivision, building, and other regulations controlling the development of land. § 380.031(8), Fla. Stat. (2008). The regulations rescinded by Ord. 003-2009 are land development regulations. 9. All land development regulations enacted, amended, or rescinded within an area of critical state concern must be consistent with the Principles for Guiding Development (the "Principles") as set forth in § 380.0552(7), Fla. Stat. See Rathkamp v. Department of Community Affairs, 21 F.A.L.R. 1902 (Dec. 4, 1998), aff d, 740 So. 2d 1209 (Fla. 3d DCA 1999). The Principles are construed as a whole and no specific provision is construed or applied in isolation from the other provisions. 10. Ord. 003-2008 promotes and furthers the following Principles: (a) To strengthen local government capabilities for managing land use and development so that local goverment is able to achieve these objectives without the continuation of the area of critical state concern designation. (b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. (h) To protect the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major public investments, including: 1. The Florida Keys Aqueduct and water supply facilities; 2. Sewage collection and disposal facilities; 3. Solid waste collection and disposal facilities; 4. Key West Naval Air Station and other military whole. DCA Final Order No.: DCA09-OR-107 facilities; 5. Transportation facilities; 6. Federal parks, wildlife refuges, and marine sanctuaries; 7. State parks, recreation facilities, aquatic preserves, and other publicly owned properties; 8. City electric service and the Florida Keys Electric Co- op; and 9. Other utilities, as appropriate. it. Ord. 003-2009 is consistent with the Principles for Guiding Development as a WHEREFORE, IT IS ORDERED that Ord. 003-2009 is found to be consistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is hereby APPROVED, and ORDERED that DCA Final Order No.: DCA08-OR-352 is vacated. This Order becomes effective 21 days after publication in the Florida Administrative Weekly unless a petition is filed as described below. DONE AND ORDERED in Tallahassee, Florida. 1 CHARLES GAUTHIER, AICP Director, Division of Community Planning Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 NOTICE OF ADMINISTRATIVE RIGHTS ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING ACTION. DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF MATERIAL FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE PROCEEDING, YOU ARE ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING. IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED ISSUE OF MATERIAL FACT CONTAINED IN THE DEPARTMENT'S ACTION, THEN THE ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED DCA Final Order No.: DCA09-OR-107 PURSUANT TO SECTIONS 120.569 AND 120.57(2) FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN INFORMAL ADMINISTRATIVE PROCEEDING, YOU MAY BE REPRESENTED BY COUNSEL OR BY A QUALIFIED REPRESENTATIVE, AND YOU MAY PRESENT WRITTEN OR ORAL EVIDENCE IN OPPOSITION TO THE DEPARTMENT'S ACTION OR REFUSAL TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS CHOSEN TO JUSTIFY ITS ACTION OR INACTION. IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE DMSION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND 120.57(1), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON ALL THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT REBUTTAL EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS, AND TO FILE EXCEPTIONS TO ANY RECOMMENDED ORDER IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF COMMUNITY AFFAIRS A WRITTEN PLEADING ENTITLED, "PETITION FOR ADMINISTRATIVE PROCEEDINGS" WITHIN 21 CALENDAR DAYS OF PUBLICATION OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECEIVED BY THE AGENCY CLERK, IN THE DEPARTMENT'S OFFICE OF, GENERAL COUNSEL, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100. THE PETITION MUST MEET THE FILING REQUIREMENTS IN RULE 28- 106.104(2), FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH RULE 28-106.301, FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH RULE 28-106.201(2), FLORIDA ADMINISTRATIVE CODE. A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY RULE 28-106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSING MEDIATION DOES NOT AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING. YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE PROCEEDING OR A FORMAL HEARING IF YOU DO NOT FILE A PETITION WITH THE AGENCY CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL ORDER DCA Final Order No.: DCA09-OR-107 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with the undersigned designated Agency Clerk, and that true and cofrect copies have been furnished to the persons listed below by the method indicated this ;al ay of April, 2009. I ?,��aula Ford, Age y Clerk By U.S. Mail: Honorable George Nugent Mayor of Monroe County 25 Ship's Way Big Pine Key, Florida 33043 Danny L. Kolhage Clerk to the Board of County Commissioners 500 Whitehead Street Key West, Florida 33040 Andrew Trivette Growth Management Director 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 By Hand Delivery or Interagency Mail: Craig Diamond, Bureau of State Planning, DCA Tallahassee Rebecca Jetton, ACSC Administrator, DCA Tallahassee Richard E. Shine, Assistant General Counsel, DCA Tallahassee ORDINANCE 003 -2009 AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS REPEALING AND RESCINDING ORDINANCE No. 20-2W8 CONCERNING THE PROVISION OF CENTRAL SANITARY SEWER AND OTHER UTILITIES TO COASTAL BARRIER RESOURCE UNITS; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF INCONSISTENT PROVISIONS; PROVIDING FOR TRANSMPITAL TO THE DEPARTMENT OF COMMUNITY AFFAIRS AND THE SECRETARY OF STATE; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Monroe County is in an area designated as an area of critical state concern; and WHEREAS, the Monroe County Board of County Commissioners passed a land development Ordinance 20-2008 on September 17, 2008 concerning the provision of central sewer service and other utilities to be provided to properties within the Coastal Barrier Resource System (CBRS) units within the jurisdiction of Monroe County; and WHEREAS, the County's current comprehensive plan discourages the provision of utilities within CBRS units; and WHEREAS, the Department of Community Affairs (DCA) provided its intent to find Ordinance No. 020- 2008 not in compliance and inconsistent with the County's 2010 Comprehensive Plan and the principles for guiding development as set forth in Chapter 380 of the Florida Statutes in Final Order No. 08-OR-352, stating also that them was not enough data and analysis, and that the ordinance was not specific enough in it s application to certain CBRS units; and WHEREAS, a member of the public has appealed the DCA's Final Order, and WHEREAS, land development regulations are not effective in an area of critical state concern until the DCA provides notification that the ordinance is consistent with the County's comprehensive plan and the principles for guiding development; and WHEREAS, the Board is following the process to adopt a Comprehensive Plan amendment concerning this same subject at the second transmittal for the year 2009; and WHEREAS, the language of the land development regulation may not accurately reflect what is included in the Comprehensive Plan amendment; and WHEREAS, the Planning Commission considered this matter at a public hearing on February 11, 2009; and WHEREAS, the Board of County Commissioners has considered the comments from the DCA, staff, the Planning Commission, and the public; and WHEREAS, based on the findings of the DCA and advice of the County Attorney, and considering the input from staff and recommendation of the Planning Commission, the Board has found that it is in the best interest of the public not to pursue the appeal of the final order and directed staff not to appeal the order, but to rescind Ordinance 20-2008; NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Section 1. Repealer, Ordinance No. 20-2008 is hereby rescinded and repealed in its entirety. Section 2. Severability. If any section, paragraph, subdivision, clause, sentence or provision of this ordinance shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, invalidate, or nullify the remainder of this ordinance, but the effect thereof shall be confined to the section, paragraph, subdivision, clause, sentence, or provision immediately involved in the controversy in which such judgment or decree shall be rendered. Sectlon 3. Conflicting Provi ons. In the case of direct conflict between any provision of this ordinance and a portion or provision of any appropriate federal, state, or County law, Wile code or regulation, the more restrictive shall apply. Sectloa 4 Transmittal_ This ordinance shall be transmitted by the Planning and Environmental Resources Department to e th Florida Department of Community Affairs to determine the consistency of this ordinance with the Florida Statutes and as required by F.S. 380.05(6) and (11). Section S. Fi11no_ This ordinance shall be filed in the Office of the Secretary of the State of Florida but shall not become effective until a notice is issued by the Department approving the ordinance. of Community Affairs or Administration Commission Sfttlon 6. Eff 9JM Dar This ordinance shall become effective as provided by law and stated above. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a regular meeting held on the 18th of February 2009. Mayor George Neugent Mayor Pro Tern Sylvia Murphy Commissioner Kim Wigington Commissioner Heather Caruthers -totnulissioner Mario Di Gennaro • , 1440 Attu; gLD�LL K LHAGE, CLERK By Deputy Cie Yes A ICB29 a Yea WT- Yea m MONROE COUNTY BOAR% M COUNTY COMMISSIONERS �'` By'467� h', Mayor George Neugent t�ON Tr A v r ro �oltr In BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 12/15/10 Division: Growth Management Bulk Item: Yes _ No X Staff Contact Person: Christine Hurley Phone #: 305-289-2517 AGENDA ITEM WORDING: Discussion and direction to staff regarding whether to initiate amendments to the Comprehensive Plan and Land Development Regulations to allow the extension of utility services to Coastal Barrier Resource System units and/or private development on No Name Key. ITEM BACKGROUND: The recent August 12, 2010 U.S. Fish and Wildlife Service letter concluded that: "Based on the best currently available scientific and commercial information, as well as the avoidance and minimization measures outlined ... within the biological assessment, the Service concurs ... that the proposed extension of electrical service to No Name Key is not likely to adversely affect the Key deer, Lower Keys, marsh rabbit, silver rice rate, eastern indigo snake, Stock Island tree snail, Key tree cactus, or Garber's spurge and formal consultation is not required. " See Attached Memo with options for action as follows: OPTIONS: 1. Direct staff to re -initiate amendments to the Monroe County 2010 Comprehensive Plan and Land Development Code from 2008 including transmittal in 2°d round of 2011. 2. Direct staff to initiate amendments to the Monroe County 2010 Comprehensive Plan and Land Development Code to allow utility expansion to NNK CBRS area only. 3. Direct staff to enforcement Comprehensive plan policies and Land Development Code policies and do not process amendments to the Monroe County 2010 Comprehensive Plan or Land Development Code. 4. Take no action with regard to Comprehensive Plan Amendment and Land Development Code amendments and wait for County Attorney's office to seek Declaratory Judgment related to NNK and expansion of utilities. PREVIOUS RELEVANT BOCC ACTION: See Attached Memo CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: Staff can support Options 2, 3, or 4 above. TOTAL COST: INDIRECT COST: DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: REVENUE PRODUCING: Yes No BUDGETED: Yes No SOURCE OF FUNDS: AMOUNT PER MONTH Year APPROVED BY: County Atty OMB/Purchasing DOCUMENTATION: Included x Not Required DISPOSITION: Revised 7/09 Risk Management AGENDA ITEM # MEMORANDUM MONROE COUNTY GROWTH MANAGEMENT DIVISION We strive to be caring, professional and fair To: Monroe County Board of County Commissioners From: Christine Hurley, AICP Growth Management Director Date: November 30, 2010 RE: Comprehensive Plan Amendment - Provision of Utilities/Electric Service to No Name Key BACKGROUND: The majority of No Name Key, as well as the eastern end of No Name Key Bridge, is located within a Coastal Barrier Resource System (CBRS Unit FL-50) (see attached map). This is a Federal designation that prohibits Federal expenditures within any CBRS mapped units. In addition to this Federal funding prohibition, Monroe County has several Comprehensive Plan Policies and a land development code provision that discourages and/or prohibits expansion of utilities to CBRS units. These policies are attached as "CBRS/No Name Key Monroe County 2010 Comprehensive Plan Objectives and Policies" and "Monroe County Land Development Code". The purpose of these policies are related to the fact that CBRS units are typically classified as areas that are well below flood elevation and include environmental resources that should be protected. There are criteria directly related to CBRS designations, established by the Federal Government. However, Monroe County Policy has also given consideration of the following: • the limited development potential in Monroe County, • policies related to expansion of utilities within CBRS units, • policies recommending community character be maintained, and • discouragement of development within areas lacking infrastructure in the tier system Based on the existing policies and regulations, staff finds that expansion of utilities into CBRS units within Monroe County to be inconsistent with the Comprehensive Plan and Land Development Code at this time. Over the past several years, several actions have been taken by the Board of County Commissioners (BOCC) to process Comprehensive Plan Amendments or Land Development Code Amendments related to the provision of utilities (primarily wastewater) to this area of CBRS. To date, these amendments have not been adopted. The following is a summary of the most recent events (relevant documents are also attached): • June 18, 2008: County staff was directed by the BOCC to process amendments to the Monroe County 2010 Comprehensive Plan and Land Development Code to allow the extension of wastewater service to No Name Key, and the provision of other utilities would be considered at a later date. • February 18, 2009: BOCC rescinded a proposed amendment to Section 130-122 of the Monroe County Code to allow the extension of central sewer service to No Name Key (Ordinance 20-2008) after the Department of Community Affairs found the proposed amendment to Section 130-122 (at the time the Code Section was Section 9.5-258) inconsistent with the Comprehensive Plan, on December 10, 2008. • January 26, 2009: BOCC moved to continue a request to amend Policy 102.8.5 of the Monroe County 2010 Comprehensive Plan to allow wastewater service and the utilities necessary to support wastewater service, to the second transmittal hearing of the year, no later than July 2009 to allow the Florida Aqueduct Authority (FKAA) the opportunity to determine the most appropriate wastewater system for No Name Key, with analysis of electric needed to support wastewater system, and the associated costs. See Ordinance 03-2009. • April 12, 2009: Signed affidavits from 30 of the 43 private property owners on No Name Key were submitted to the County affirming their request for electric service and that they would be responsible for the associated costs. • April 29, 2009: Robert Reynolds requested that Keys Energy Service provide electric power to his residence on No Name Key. Keys Energy Services responded on May 5, 2009, outlining the process for the extension of commercial power to No Name Key. • June 5, 2009 FKAA concluded: "When a final determination is made regarding the provision of commercial electrical power in areas currently without it, then the final selection and design of an appropriate wastewater system will commence with the assistance of the Department of Health ". Since the issues that the BOCC requested to be addressed by FKAA were not resolved, staff did not include the proposed amendment to Policy 102.8.5 with the second amendment transmittal for 2009. • July 9, 2010 and August 11, 2010: Keys Energy Service submitted plans and a Biological Assessment to U.S. Fish and Wildlife Service requesting coordination and determination of proposed project impact to endangered species including Key Deer, Lower Keys marsh rabbit, silver rice rat, eastern indigo snake, Stock Island tree Snail, Key tree cactus, or Garber's spurge. • August 3, 2009: A Second Amendment to the Interlocal Agreement for Expanded Cudjoe Regional Wastewater System was approved between Monroe County and the Florida Keys Aqueduct Authority, which "determined that there are a high proportion of properties in the area of the Cudjoe Regional Wastewater System which are not slated for centralized sewer but which will have to upgrade their onsite sewage treatment and disposal system (OSTDS) at a similar per EDU cost as the centralized system." The amended Inerlocal Agreement also "determined that it is equitable to include OSTDS in the Cudjoe Regional area to enable FKAA to enter into installation and maintenance agreements and to allow the same degree of subsidization to those costly projects which are on a par with centralized system EDU costs." This Amendment was based upon the Board of County Commission decision that No Name Key would not be included in the central wastewater system, but it would still be part of the Cudjoe Regional System which was to encompass both the central wastewater system and the onsite systems for which property owners opted to have FKAA own and operate on the individual's property. The decision included that those OSTDS users who opted into the regional system would get the same assessment as everyone getting central sewer. • October 15, 2010: FWS concluded: "Based on the best currently available scientific and commercial information, as well as the avoidance and minimization measures outlined above and within the biological assessment, the Service concurs with your view that the proposed extension of electrical service to No Name Key is not likely to adversely affect the Key deer, Lower Keys, marsh rabbit, silver rice rate, eastern indigo snake, Stock Island tree snail, Key tree cactus, or Garber's spurge and formal consultation is not required. Reinitiation of consultation may be necessary if.• (1) modifications are made to the project; (2) additional information involving potential effects to listed species becomes available; or (3) a new species is listed, or if critical habitat is designated that may be affected by the project. " • November 3, 2010: Keys Energy Service developed preliminary designs for the extension of electric service to No Name Key and requested permission to access County rights -of -way for above ground poles and to install and maintain conduit on No Name Key bridge. Based on the previous BOCC direction in Ordinance 03-2009, staff is seeking direction from the BOCC on whether to process a Comprehensive Plan amendment, with corresponding Land Development Code Amendment to Section 130-122 to allow utility expansion within this area of CBRS. Please note: Staff is providing the following information relative to CBRS areas, as NNK is not the only CBRS area within Monroe County and staff is seeking clear direction on whether the BOCC recommends amending the Comprehensive Plan to allow utility expansion to all CBRS units or just to NNK. There are presently 218 owners of developed property within Monroe County located within a CBRS designation, of which 16 owners are located within one condominium lot. Recommendation: OPTIONS: Direct staff to re -initiate amendments to the Monroe County 2010 Comprehensive Plan and Land Development Code from 2008 including transmittal in 2"a round of 2011. 2. Direct staff to initiate amendments to the Monroe County 2010 Comprehensive Plan and Land Development Code to allow utility expansion to NNK CBRS area only. 3. Direct staff to enforcement Comprehensive plan policies and Land Development Code policies and do not process amendments to the Monroe County 2010 Comprehensive Plan or Land Development Code. 4. Take no action with regard to Comprehensive Plan Amendment and Land Development Code amendments and wait for County Attorney's office to seek Declaratory Judgment related to NNK and expansion of utilities. 117 MINUTES OF THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS Regular Meeting Board of County Commissioners ednesday, June 18, 2008 Marat on, faT4t A Regular Meeting of the Monroe County Board of County Commissioners convened at 9:00 A.M., at the Marathon Government Center. Present and answering to roll call were Commissioner Charles "Sonny" McCoy, Commissioner Sylvia Murphy, Commissioner George R. Neugent, Commissioner Dixie M. Spehar and Mayor Mario DiGennaro. Also present at the meeting were Roman Gastesi, County Administrator; Debbie Frederick, Assistant County Administrator; Suzanne Hutton, County Attorney; Danny L. Kolhage, Clerk; Isabel C. DeSantis, Deputy Clerk; County Staff, members of the press and radio; and the general public. ADDITIONS, CORRECTIONS, DELETIONS Motion was made by Commissioner McCoy and seconded by Commissioner Neugent granting approval of the Additions, Corrections, and Deletions to the Agenda. Motion carried unanimously. PRESENTATION OF AWARDS Presentation of Years of Service Award for 10 years of service to Monroe County to Irene Toner, Director, Emergency Management, Emergency Services Division. ?resentation of the Florida Keys Council for People with Disabilities Award to C. J. Geotis, Port Manager of the City of Marathon, Florida. Presentation of a Mayor's Proclamation in recognition of the community services provided by the American Red Cross. BULK APPOVALS Motion was made by Commissioner Spehar and seconded by Commissioner Neugent granting approval of the following items by unanimous consent: Board granted approval and authorized execution of a Renewal Agreement between Monroe County and Synagro Southeast, Inc. for operation and maintenance of the sewage treatment plant at the Florida Keys Marathon Airport. 127 MISCELLANEOUS BULK APPROVALS The Board discussed an Interlocal Agreement between Monroe County and the School Board of Monroe County to cooperate in support of services formerly offered by the PACE Center for Girls, Inc. for County Fiscal Year 2008, with option to renew. Tina Boan, Senior Director of the Office of Budget & Finance discussed the matter. After Board discussion, motion was made by Commissioner Spehar and seconded by Commissioner Murphy granting approval of the item. Motion carried unanimously. The Board discussed an Award of Bid and a Contract between Monroe County and Hospice of the Florida Keys, Inc., d/b/a Visiting Nurse Association, to provide direct in -home services for the elderly and disabled as provided under grantee to Monroe County from the Alliance for Aging (e.g., CEC and OAA) and the Department of Children and Families (e.g., CCIA). Deb Barsell, Community Services Director discussed the matter. After discussion, motion was made by Commissioner Spehar and seconded by Commissioner Murphy granting approval of the item. Motion carried unanimously. The Board discussed the acceptance of the monthly report on Change Orders reviewed by the County Administrator's Office. There was one change order considered and approved by the County Administrator for the period beginning May 1, 2008 and ending May 31, 2008, at not cost to the County. There was not any change orders requested denied to the Contractor by Engineering or Facilities Development. Said report is incorporated herein by reference. Dave Koppel, County Engineer discussed the matter. After Board discussion, motion was made by Commissioner Spehar and seconded by Commissioner Murphy granting approval of the item. Motion carried unanimously. The Board discussed an Agreement between Monroe County and Leonardo Nierman to display a 12' tall sculpture titled "Eternal Flight" at the Freeman Justice Center. Suzanne Hutton, County Attorney discussed the matter. After Board discussion, motion was made by Commissioner Spehar and seconded by Commissioner Murphy granting approval of the item. Motion carried unanimously. The Board discussed an Award of Bid and a Contract between Monroe County and B.A.T. Construction, Inc., for the Environmental Wetlands Mitigation at the new Medical Examiner's Facility. B.A.T. Construction, Inc. was the lowest conforming responsive bidder. The following individual addressed the Board: Crystina Bass, representing B.A.T. T. Construction, Inc. Dave Koppel, County Engineer and Suzanne Hutton, County Attorney discussed the matter. After Board discussion, motion was made by Commissioner Murphy and seconded by Commissioner Neugent granting approval and authorizing execution of the item. Roll call vote was unanimous. COMMISSIONERS' ITEMS The Board discussed Mayor DiGennaro's item concerning a Resolution declaring support of Congressional Legislation to exclude the developed residential area of the unrecorded plat on the East End of No Name Key, otherwise known as "Island's End", 128 located in Monroe County, Florida from the Federal Coastal Barrier Resources Systcm. The following individuals addressed the Board: Hallett Douville, Donald Craig, representing No Name Key residents; Mary Bakke, Kathy Brown, Bruce Turkel, Kristie Killam, John Bakke, Dave Eaken, John Lentini, and Jim Newton. Suzanne Hutton, County Attorney and Drew Trivette, Growth Management Director discussed the matter. The Board requested the item be heard later in the day. The Board discussed Mayor DiGennaro's item to direct Staff to amend Section 9.5-258 Coastal Barrier Resources System Overlay District of the Monroe County Code to eliminate the prohibition of the establishment of central wastewater treatment collection systems and utilities for No Name Key in accordance with previously approved BOCC direction to include No Name Key within the central sanitary wastewater system plan for the Lower Keys Regional Service Area. The following individuals addressed the Board: Dennis Henize, representing Last Stand and himself; John Hammerstrom, Donald Craig, representing No Name Key residents; Jim Newton, Bob Reynolds, Beth Ramsay- Vickrey, Mary Bakke, John Lentini, Brad Vickrey, Kathy Brown, Kristie Killam, Dave Eaken, Kathy Wheeler, Brenda Schneider, Jan Scanlon, Rob Barber, Mirkos Pichel, Mick Putney, Alicia Putney, representing the Solar Community of No Name Key; Hallett Douville, and Frank Atwell. Jim Reynolds, Executive Director of the Florida Keys Aqueduct Authority and Drew Trivette, Growth Management Director discussed the matter. After Board discussion, motion was made by Commissioner Spehar and seconded by Commissioner Neugent to so word the resolution that the prohibition on utilities is reworded such that the focus and priority be placed on wastewater first and any discussion of electric or any other utility is deferred until the wastewater goal is accomplished. Roll call vote was taken with the following results: Commissioner Murphy No Commissioner Neugent Yes Commissioner Spehar Yes Commissioner McCoy Yes Mayor DiGennaro Yes Motion carried. The Board directed Staff to amend the LDR's and Comp Plan. The Board discussed Mayor DiGennaro's item concerning a Resolution declaring support of Congressional Legislation to exclude the developed residential area of the unrecorded plat on the East End of No Name Key, otherwise known as "Island's End", located in :Monroe County, Florida from the Federal Coastal Barrier Resources System. Suzanne Hutton, County Attorney and Drew Trivette. Growth Management Director discussed the matter. After Board discussion, motion was made by Commissioner Spehar and seconded by Commissioner Murphy to adopt the following Resolution. Roll call vote was taken with the following results: Commissioner Murphy Yes Commissioner Neugent No Commissioner Spehar Yes Motion carried. Commissioner McCoy Yes Mayor DiGennaro Yes RESOLUTION NO. 179-2008 Said Resolution is incorporated herein by reference. 129 Mayor DiGenaaro introduced J. B. Hunt of the local chapter of the American Red Cross in Monroe County who gave a presentation of the services provided to the local communities of the Keys. The Board discussed Commissioner Neugent's item concerning a request by a constituent to waive conditional use fee for a one story motel located at the Sugarloaf Lodge. The following individuals addressed the Board: Lloyd Good, Jr. After discussion, motion was made by Commissioner Neugent and seconded by Commissioner Murphy granting approval of the request. Motion carried unanimously. CLOSED SESSIONS Suzanne Hutton, County Attorney announced a closed Executive Session of the Board of County Commissioners in the matter of Department of Community Affairs v. Monroe County, et al, DOAH 08-2035. Present at the meeting will be the Board of County Commissioners, County Administrator Roman Gastesi, County Attorney Suzanne Hutton, Chief Assistant County Attorney Bob Shillinger, Assistant County Susan Grimsley, and Assistant County Attorney Derek Howard, and a certified court reporter. Suzanne Hutton, County Attorney announced a closed Executive Session of the Board of County Commissioners in the matter of Celeste Bruno v. Monroe County, CV 07-10117. Present at the meeting will be the Board of County Commissioners, County Administrator Roman Gastesi, County Attorney Suzanne Hutton, Chief Assistant County Attorney Bob Shillinger, Mike Burke as special litigation counsel in the pending litigation, and a certified court reporter. PUBLIC HEARINGS A Public Hearing was held to consider adoption of a Resolution concerning a Budget Amendment to the Fiscal Year 2008 Card Sound Bridge Fund 401; MSD Solid Waste Fund 414; Fleet Management Fund 504; Key West International Airport Fund 404; Key West Airport Series 2006 Bonds Fund 405; and Local Housing Assistance Fund 503. There was no public input. Motion was made by Commissioner Neugent and seconded by Commissioner Murphy to adopt the following Resolution. Motion carried unanimously. RESOLUTION NO. 178-2008 Said Resolution is incorporated herein by reference. ORDINANCE NO. 020 -2008 AN ORDINANCE AMENDING SEC. 9.5-258 OF THE MONROE COUNTY CODE TO ALLOW THE PROVISION OF CENTRAL WASTEWATER SERVICE AND SUPPORT UTILITIES TO DEVELOPED PROPERTIES LOCATED WITHIN THE COASTAL BARRIER RESOURCES SYSTEM; PROVIDING FOR SEVERABILITY; PROVIDING FOR THE REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR THE INCORPORATION INTO THE MONROE COUNTY CODE; AND DIRECTING THE CLERK OF THE BOARD TO FORWARD A CERTIFIED COPY OF THIS ORDINANCE TO THE FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS AND PROVIDING AN EFFECTIVE DATE WHEREAS, the Coastal Barrier Resources Act (CBRA) of 1982 established the Coastal Barrier Resources System (CBRS) to restrict the federally subsidized development of coastal barrier areas (SEE 16 U.S.C. 3504(a)(1)); and WHEREAS, Monroe County has 22 designated units of the CBRS identified by the U.S. Fish an Wildlife Service; and WHEREAS, Objective 102.8 of the Monroe County Year 2010 Comprehensive Plan states: "Monroe County shall take actions to discourage private development in areas designated as units of the Coastal Barrier Resources System [W-5.006(3)(b)4]"; and WHEREAS, Policy 102.8.5 of the Monroe County Year 2010 Comprehensive Plan states: "Upon adoption of the Comprehensive Plan, Monroe County shall initiate efforts to discourage the extension of facilities and services provided by the Florida Keys Aqueduct Authority and private providers of electricity and telephone services to CBRS units"; and WHEREAS, on December 18, 2001, the Board of County Commissioners adopted Ordinance No. 043-2001, creating Section 9.5-258 of the Monroe County Code which established a Coastal Barrier Resources System Overlay District, the purpose of which is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to or through lands designated as a unit of the Coastal Barrier Resources System; and WHEREAS, pursuant to Chapter 99-395, Laws of Florida, Monroe County has been mandated by the State of Florida to provide a centralized sewer system by 2010 as a means of improving near shore water quality within the Florida Key; and WHEREAS, on June 18, 2008, the Growth Management Staff was directed by the Board of County Commissioners to amend the comprehensive plan and land development regulations to reword the prohibition on utilities such that the focus and priority be placed on wastewater first and any discussion of electric or any other utility, other than those required to efficiently support a central wastewater collection system, be deferred until the wastewater goal is accomplished; and Page 1 of 3 Initials W:\•GROWTH MANAGEMENYBOCCGMD Agenda Items,20080917\CBRS LDR Amend\Adopted Wastewater Ordinance with changes from BOCC and no underlines or strikethroughs - LDR (Amended).doc WHEREAS, during a regular meeting held on July 23, 2008, the Monroe County Planning Commission conducted a public hearing on the proposed text, and recommended approval of the proposed text; and WHEREAS, the Monroe County Board of County Commissioners held a public hearing on the proposed amendments to the Monroe County Code submitted by the Monroe County Planning Department; and WHEREAS, it is the desire of the Monroe County Board of County Commissioners that the following amendment to the Monroe County Code be approved, adopted and sent to the state land planning agency for approval; NOW THEREFORE; BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Section 1. Chapter 9.5, Article VII Division 2 is hereby amended as follows: Sec. 9.5-258. Coastal barrier resources system overlay district (a) Purpose: The purpose of the Coastal Barrier Resources System Overlay District is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to undeveloped properties within a unit of the Coastal Barrier Resources System. (b) Application: The Coastal Barrier Resources System Overlay District shall be overlaid on all areas, except for Stock Island, within federally designated boundaries of a Coastal Barrier Resources System Unit on current Flood Insurance Rate Maps approved by the Federal Emergency Management Agency, which are hereby adopted by reference and declared part of this chapter. Within this overlay district, the transmission and/or collection lines of the following types of public utilities shall be prohibited from extension or expansion only to undeveloped properties located within a CBRS Unit: central wastewater treatment collection systems; potable water; electricity; and telephone and cable. This prohibition shall not preclude the provision of those utilities required to provide central sanitary wastewater collection and treatment nor the maintenance and upgrading of existing public utilities in place on the effective date of this ordinance and shall not apply to wastewater nutrient reduction cluster systems. Section 2. If any section, subsection, sentence, clause, item, change, or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such validity. Section 3. All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed to the extent of said conflict. Section 4. This ordinance shall be transmitted by the Planning Department to the Department of Community Affairs to determine the consistency of this ordinance with the Florida Statutes. Page 2 of 3 Initials W:'GROW"fH MANAGEMENT00CC IGMD Agenda ltems120080917\CBRS LDR Amend',Adopted Wastewater Ordinance with changes from BOCC and no underlines or strikethroughs - LDR (Amended).doc Section 5. This ordinance shall be fled in the Office of the Secretary of State of Florida, but shall not become effective until a notice is issued by the Department of Community Affairs or Administrative Commission approving the ordinance. Section 6. The Director of Growth Management is hereby directed to forward a copy of this ordinance to the Municipal Code Corporation for the incorporation into the Monroe County Code of Ordinances once this ordinance is in effect. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a regular meeting held on the 17th day of September, A.D., 2008, Mayor Mario DiGennaro Yes Mayor Pro Tern Charles "Sonny McCoy Yes Commissioner Sylvia Murphy No Commissioner George Neugent No Commissioner Dixie Spehar es BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA BY Mayor Mario DiGennaro 1 s o rma c7 \ ANNY KOLHAGE, CLERK ��o C,. :7 QD - DEPUTY C ERK MONROE COU TTORNEY AFP EU ST FORM. Page 3 of 3 Initials W:\GROWTH MANAGEMENTIBOCC\GMD Agenda Items1200809171CBRS LDR Amend\Adopted Wastewater Ordinance with changes from BOCC and no underlines or strikethroughs - LDR (Amended).doc STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS "Dedicated to making Florida a better place to call home" CHARLIE CRIST Govemor TO: THROUGH: FROM: DATE: SUBJECT: Craig Diamond, Chief, State Planning Rebecca Jetton, Administrator, ACSC Ada Mayte Santamaria, Community Planner December 10, 2008 Monroe County Ordinance 020-2008 THOMAS G.PELHAM Secretary AN ORDINANCE OF BY THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS ADOPTING AN AMENDMENT TO SECTION 9.5-258 OF THE MONROE COUNTY LAND DEVELOPMENT REGULATIONS TO ALLOW THE PROVISION OF CENTRAL WASTEWATER SERVICE AND SUPPORT UTILITIES TO DEVELOPED PROPERTIES LOCATED WITHIN THE COASTAL BARRIER RESOURCES SYSTEM. ADOPTION AND PUBLISHING Monroe County rendered Ordinance 020-2008 on October 15, 2008. The 60-day appeal deadline is December 14, 2008. PURPOSE The purpose of the proposed ordinance is to allow the provision of wastewater service and other utilities required to provide sanitary wastewater collection and treatment to properties located within the Coastal Barrier Resources System Overlay. RECOMMENDATION Staff recommends denial of this ordinance. STAFF ANALYSIS The proposed ordinance would allow the provision of central wastewater service and other utilities required to provide sanitary wastewater collection and treatment to developed properties located within the coastal barrier resources system. 2555 SHUMARD OAK BOULEVARD ♦ TALLAHASSEE, FL 32399-2100 850-488-8466 (p) ♦ 850-921-0781 (f) ♦ Website: vrvrw.dCa.state.fl.us ♦ COMMUNITY PLANNING 85OA88.2356 (p) 850468.3309 (f) • FLORIDA COMMUNITIES TRUST 850-922-2207 (p) 850-921.1747 (f) • HOUSING AND COMMUNITY DEVELOPMENT 850-488-7956 (p) 850-922.5623 (f) Land Development Regulation Definitions The Monroe County land development regulations define Coastal Barrier Resources System (CBRS) to mean those fifteen (CBRS) units in Monroe County designated under the Federal Coastal Barrier Resources Act (CBRA) of 1982, comprised of undeveloped coastal barriers and all associated aquatic habitats including wetlands, marshes, estuaries, inlets and near shore waters. Ordinance 020-2008 indicates that there are 22 designated Coastal Barrier Resources System units identified by the U.S. Fish and Wildlife Service. The County states the proposed change is to fully implement Section 6 of Chapter 99-395, Laws of Florida, which requires aII sewage facilities, including onsite sewage treatment and disposal systems, permitted after June 18, 1999 to comply with binding treatment and disposal requirements. There are 22 designated coastal barrier resources system units in Monroe County (mainly the Iower portion of unincorporated Monroe County, in northern Key Largo, Ocean Reef and several in the municipalities). The County staff report submitted with this ordinance, states that "there are five developed residential areas (with five structures or less per acre) and one commercial area that fall within the CBRS designation." The County did not provide any data indicating the Iocation of the five developed residential areas and one commercial area or which CBRS units contain these areas. AdditionaIIy, the County did not provide any basis for utilizing with five structures or Iess per acre" to mean the property is developed. This ordinance would allow the provision of central wastewater service and other utilities required to provide sanitaiy wastewater collection and treatment to developed properties located within the coastal barrier resources system. The ordinance did not include a defmition of "undeveloped" or "developed" properties. The Monroe County Growth Management Director has clarified that the County is utilizing the definition of "development" in the Iand development regulations to identify "developed" properties (see attachment 2 for the definition of development). The definition of development does not include: "with five structures or less per acre." If this amendment to the CBRS overlay intends to define a "developed" property as a property with "development," this would include parcels of Iand with any material change in the use or appearance of any structure or land or water (such as: structures, alterations of structures, alterations to the shoreline, mining, clearing of land, trimming of mangroves, and the placement of filI). As an example, parcels that have had vegetation cleared or removed (excluding maintenance of existing landscaped areas, clearing of survey cuts or other paths of less than four (4) feet in width) could be considered "developed." The Department suggests that Monroe County provide a clear and targeted definition of "undeveloped" or "developed" properties, as it appears the existing definition of "development" is overly broad. Section 163.3202, F.S., requires that land development regulations contain specific and detailed provisions necessary to implement the adopted comprehensive plan. This amendment does not provide specific and detailed standards for implementing this regulation. Monroe County should provide definitions and/or criteria to determine what is considered "undeveloped" or 2 "developed" properties, and ensure consistent implementation of this amendment. The Department would recommend a targeted definition for the implement of this proposed change. While the Department supports the County's efforts to meet the requirements of Chapter 99-395, Laws of Florida, without clear criteria or definition, the Department cannot detennine or establish the potential implications of the proposed amendment. Data and Analysis & Comprehensive Plan Consistencx Initially, the County did not provide an analysis of how many CBRS units would be affected by the proposed amendment or which CBRS units are within the proposed areas to have wastewater facilities. Additional information has been provided by the County that identifies properties within the CBRS units, properties that are considered developed and designated as a wastewater hot spot (area to receive sewers) as well as properties that are in government ownership. According to the Monroe County Growth Management Director, approximately 112 parcels are developed and within a CBRS unit (see examples below). It appears from the maps provided by Monroe County of the parcels in government ownership that approximately 60 parcels within a CBRS unit are in government lands. Wastewater Hotspots and Coldspots Monroe County, Flerida May 2008 } Codspa.sV tt,Euddirgs CafdspoisSN'htvut Etrldno ..�;�.<<�: Q Exsi,ngwas:ewatvFad6�s 03 Coastal Bamw Resaume S-evem Additional information has also been provided by the County that identifies properties within the CBRS units and the Tier designations of the CBRS units. The Comprehensive Plan limits the expansion of utility facilities, other than water distribution and sewer collection lines or pump/vacuum/lift stations; within Tier I designated areas or Tier III Special Protection Areas unless it can be accomplished without clearing of hammock or pinelands. The Monroe County Comprehensive Plan also discourages the extension of facilities and services provided by the Florida Keys Aqueduct Authority (wastewater and potable water provider) and private providers of electricity and telephone service to CBRS units and prohibits public expenditures for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, except for expenditures necessary for public health and safety. While the Comprehensive Plan does not prohibit the extension of facilities and services into CBRS units, this amendment conflicts with the County's policies discouraging both private and public investment in CBRS units. The Department recommends a Comprehensive Plan amendment to resolve this conflict. The Comprehensive Plan amendment should clarify that the extension of 4 facilities and services to specific areas in CBRS units designated as Hot Spots (area to receive central sewer) may be necessary for water quality improvement as well as for financial feasibility and economies of scale in constructing regional wastewater plants. Monroe County staff has indicated that the County wiII be moving forward with a Comprehensive Plan amendment to address any conflicts with the Comprehensive Plan in County's first amendment cycle in 2009. The Department would suggest the County complete the Comprehensive Plan amendment and then propose a revise land development regulation to implement the Plan. Additionally, the County may want to propose a policy clarifying that the County may provide wastewater facilities to existing development in a CBRS unit but will not provide additional capacity to encourage further development of these areas. As noted above, this proposed amendment may affect approximately 112 developed parcels in the CBRS units. According to discussions with Monroe County, the intent of this proposed amendment is to facilitate the wastewater planning and development of No Name Key. The Department is aware that there are not finn wastewater plans for the facility anticipated to service No Name Key and that this facility is not scheduled to be completed for several years. If the intent of Monroe County is to provide wastewater to No Name Key, the Department would recommend the County revise this ordinance to target its application to No Name Key. Additionally, in recognition of the existing funding gap of approximately $336 million for wastewater projects and the uncertainty of funding sources, the County should provide some analysis of the magnitude of the additional public facility costs. In this analysis, the County should review both wastewater project costs as well as unanticipated costs associated with providing other utilizes required for wastewater facilities. Staff Summary Department staff is encouraged by the County's efforts to provide sanitary sewer but the amendment is inconsistent with the intent of the Comprehensive Plan. The Department is willing to work with the County to review and develop strategies to ensure consistency with the requirements of Chapter 99-395, Laws of Florida and to ensure that the land development regulations consistent with and implement the Comprehensive Plan. The Department would like to work with Monroe County staff to draft specific and targeted language both for the Comprehensive Plan amendment and an amendment to the land development regulations. This could be accomplished quickly in early 2009. PRINCIPLES FOR GUIDING DEVELOPMENT The Ordinance does not further the following Principles for Guiding Development, Section 380.0552(7), F.S. Principle (a): To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the Area of Critical State Concern designation. Principle (b): To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. Principle (h): To protect the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major public investments, including: 1. The Florida Keys Aqueduct and water supply facilities; 2. Sewage collection and disposal facilities; 3. Solid waste collection and disposal facilities; 4. Key West Naval Air Station and other military facilities; 5. Transportation facilities; 6. Federal parks, wildlife refuges, and marine sanctuaries; 7. State parks, recreation facilities, aquatic preserves, and other publicly owned properties; 8. City electric service and the Florida Keys Electric Co-op; and 9. Other utilities, as appropriate. Principle (i): To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. COM_PREHENSIVE PLAN CONSISTENCY The ordinance is also inconsistent with numerous policies which provide that public expenditures should not be used in areas designated as CBRS units. The ordinance does not further the following Comprehensive Plan elements: Policy 215.2.3 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier- Resources System, saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. Policy 217.4.2 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. Policy 1401.2.2 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. 6 Policy 101.12.4 Monroe County shall require that the following analyses be undertaken prior to finalizing plans for the siting of any clew or the significant expansion (greater than 25 percent) of any existing public facility: 1. assessment of needs; 2. evaluation of alternative sites and design alternatives for the alternative sites; and, 3. assessment of direct and secondary impacts on surrounding land uses and natural resources. The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach berm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality harmnock and pinelands), habitats of species considered to: be threatened or endangered by the state and/or federal governments, offshore islands, and designated Tier I areas. Except for passive recreational facilities on publicly -owned land, no new public community or utility facility other than water distribution and sewer collection lines or pump/vacuum/lift stations shall be allowed within Tier I designated areas or Tier III Special Protection Area unless it can be accomplished without clearing of hammock or pineland,9. Exceptions to this requirement may be made to protect the public health, safety, and welfare, if all the following criteria are met: No reasonable alternatives exist to the proposed location; and The proposed location is approved by a supennajority of the Board of County Commissioners. The site of the Key Largo Wastewater Treatment Facility (located at mile marker 100.5) with an allowed clearing of up to 4.2 acres shall not be subject to this policy. Objective 102.8 Monroe County shall take actions to discourage private development in areas designated as units of the Coastal Barrier Resources System. Policy 102.8.1 Monroe County shall discourage developments which are proposed in units of Coastal Barrier Resources System (CBRS) Policy 102.8.4 By January 4, 1998, privately -owned undeveloped land located within the CBRS units shall be considered for acquisition by Monroe County for conservation purposes through the Monroe County Natural Heritage and Park Program. Policy 102.8.5 Monroe County shall efforts to discourage the extension of facilities and services provided by the Florida Keys Aqueduct Authority and private providers of electricity and telephone service to CBRS units. These efforts shall include providing each of the utility providers with: 1. a map of the areas of Monroe County which are included in CBRS units; 2. a copy of the Executive Summary in Report to Congress: Coastal Barrier Resources System published by the U.S. Department of the Interior, Coastal Barriers Study Group, which specifies restrictions to federally subsidized development in CBRS units; 3. Monroe County policies regarding local efforts to discourage both private and public investment in CBRS units. Policy 103.2.4 Upon adoption of the Comprehensive Plan, Monroe County shall require that the following analyses be undertaken prior to finalizing plans for the siting of any new public facilities or the significant expansion (greater than 25 percent) of existing public facilities: 1. assessment of needs 2. evaluation of alternative sites and design alternatives for the selected sites; and 3. assessment of impacts on surrounding land uses and natural resources. The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach/berm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality hammocks and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, offshore islands, and Conservation Land Protection Areas. Monroe County shall require that public facilities be developed on the least environmentally sensitive lands and shall prohibit the location of public facilities on North Key Largo, unless no feasible alternative exists and such facilities are required to protect the public health, safety, or welfare. Policy 103.2.10 Monroe County shall take immediate actions to discourage private development in areas designated as units of the Coastal Barrier Resources System. (See Objective 102.8 and related policies.) Objective 209.3 Monroe County shall take immediate actions to discourage private development in areas designated as units of the Coastal Barrier Resources System (CBRS). (See Future Land Use Objective 102.8 and related policies.) Attachment 1 Additionally, it appears many of the areas designated as a CBRS unit are also designated within the Conservation (C) future land use category and the Conservation zoning district. Policy 101.4.15 states "The principal purpose of the Conservation land use category is to provide for publicly owned lands held primarily for the preservation of natural and historic resources and compatible passive recreational uses. Public uses consistent with the purpose of this category shall be allowed." Section 9.5-225 of the land development regulations states "The purpose of the conservation district is to provide an area acquired for conservation purposes or subject to deed restrictions limiting the use of the property for conservation purposes." Section 9.5-254 Conservation District (CD) describes the uses that are permitted in the Conservation District, which include: • Passive recreational use. • Collocations on existing antenna -supporting structures • Satellite earth stations less than two (2) meters in diameter, as accessory uses • Satellite earth stations greater than or equal to two (2) meters in diameter, as accessory uses, are penmitted as minor conditional uses Further, Section 9.5-231 states that "No structure or land in Monroe County shall hereafter be developed, used or occupied unless expressly authorized in a land use district in this division." It does not appear that public utility facilities are an allowed use in many of the areas designated as a CBRS unit. Sewer lines along the road right-of-way would be allowed but it does not appear that other facilities are allowed. This amendment may be creating an internal inconsistency in the land development regulations. Attachment 2 Monroe County Land Development Regulations Section 9.5-4. Definitions. (D-8) Development means the carrying out of any building activity, the making of any material change in the use or appearance of any structure or land or water, or the subdividing of land into two (2) or more parcels. (a) Except as provided in subsection (c) hereof, for the purposes of this chapter, the following activities or uses shall be taken to involve "development": (1) A reconstruction, alteration of the size, or material change in the external appearance of a structure on land or water. (2) A change in the intensity of use of land, such as an increase in the number of dwelling units in a structure or on land or a material increase in the number of businesses, manufacturing establishments, offices or dwelling units in a structure or on land. (3) Alteration of a shore or bank of a seacoast, lake, pond or canal, including any work or activity which is likely to have a material physical effect on existing coastal conditions or natural shore and inlet processes. (4) Commencement of drilling (except to obtain soil samples), mining or excavation on a parcel of land. (5) Demolition of a structure. (6) Clearing of land, including clearing or removal of vegetation and, including significant disturbance of vegetation or substrate (soil) manipulation, including the trimming of mangroves to the extent allowed by law. (Ord. No. 19-1989, § I (PD 11)) (7) Deposit of refuse, solid or liquid waste, or fill on a parcel of land. (b) "Development" includes all other activity customarily associated with it. When appropriate to the context, "development" refers to the act of developing or to the result of development. Reference to any specific operation is not intended to mean that the operation or activity, when part of other operations or activities, is not development. Reference to particular operations is not intended to limit the generality of this definition. (c) For the purpose of this chapter, the following operations or uses shall not be taken to involve "development:" (1) Work involving the maintenance, renewal, improvement or alteration of any structure, if the work affects only the color or decoration of the exterior of the structure or interior alterations that do not change the use for which the structure was constructed. (2) Work involving the maintenance of existing landscaped areas and existing rights -of - way such as yards and other non -natural planting areas. (3) A change in use of land or structure from a use within a specified category of use to another use in the same category unless the change involves a change from a use permitted as of right to one permitted as a minor or major conditional use or frorn a minor to a major conditional use. (4) A change in the ownership or form of ownership of any parcel or structure. (5) The creation or termination of rights of access, riparian rights, easements, covenants concerning development of Iand, or other rights in land unless otherwise specifically required by law. H (6) The clearing of survey cuts or other paths of less than four (4) feet in width and the mowing of vacant lots in improved subdivisions and areas that have been continuously maintained in a mowed state prior to the effective date of the plan, the trimming of trees and shrubs and gardening in areas of developed parcels that are not required open space and the maintenance of public rights -of -way and private accessways existing on the effective date of this chapter or approved private rights -of -way. (d) Development also means the tourist housing use or vacation rental use of a dwelling unit, or a change to such a use (i.e., conversion of existing dwelling units to vacation rental use). Vacation rental use of a dwelling unit requires building permits, inspection(s) and a certificate of occupancy. Section 9.5-4. Definitions. (C-7)Coastal Barrier Resources System (CBRS) means those fifteen (CBRS) units in Monroe County designated under the Federal Coastal Barrier Resources Act (CBRA) of 1982, comprised of undeveloped coastal barriers and all associated aquatic habitats including wetlands, marshes, estuaries, inlets and near shore waters. MINUTES OF THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS Special Meeting/Transmittal Hearings Board of County Commissioners Monday, January 26, 2009 Marathon, Florida A Special Meeting of the Monroe County Board of County Commissioners convened at 10:00 A.M., at the Marathon Government Center. Present and answering to roll call were Commissioner Heather Carruthers, Commissioner Mario DiGennaro, Commissioner Sylvia Murphy, Commissioner Kim Wigington, and Mayor George R. Neugent. Also present were Roman Gastesi, County Administrator; Debbie Frederick, Assistant County Administrator; Bob Shillinger, Chief Assistant County Attorney; Danny L. Kolhage, Clerk; Isabel C. DeSantis, Deputy Clerk; County Staff, members of the press and radio; and the general public. ADDITIONS, CORRECTIONS, DELETIONS There were no Additions, Corrections or Deletions made to the Agenda. The Board discussed agenda item B4 on today's agenda concerning the consideration of a transmittal Resolution to the Department of Community Affairs proposing an amendment to the 2010 Comprehensive Plan amending the text of the Educational FLUM category; amending Policies 101.4.11 and 101.4.21; and allocating residential density to the Educational Future Land Use Category. Andrew Trivette, Growth Management Director discussed the matter. After discussion, motion was made by Commissioner DiGennaro and seconded by Commissioner Murphy to postpone this item until the next Transmittal Hearing date - (late July 09' or early August 09'). Motion carried unanimously. PUBLIC HEARINGS A Public Hearing was held to consider transmittal of a Resolution to the Department of Community Affairs at the request of Siervers Marine, Inc., proposing an Ordinance to amend the subject property's Future Land Use Map (FLUM) designation from Residential Medium (RM) to Mixed Use/Commercial (MC). There was no public input. After discussion, motion was made by Commissioner Murphy and seconded by Commissioner Wigington to adopt the following Resolution. Motion carried unanimously. RESOLUTION NO. 001-2009 Said Resolution is incorporated herein by reference. 2 A Public Hearing was held to consider transmittal of a Resolution to the Department of Community Affairs at the request of Lloyd A. Good, Jr., proposing an Ordinance to amend the subject property's Future Land Use Map (FLUM) designation from Residential Conservation (RC) to Mixed Use/Commercial (MC). There was no public input. Drew Trivette, Growth Management Director disseminated an addendum to the item. After discussion, motion was made by Commissioner Murphy and seconded by Commissioner DiGennaro to adopt the following Resolution, as revised. Motion carried unanimously. RESOLUTION NO.002-2009 Said Resolution is incorporated herein by reference. A Public Hearing was held to consider transmittal of a Resolution to the Department of Community Affairs at the request of Roseann & Rudolph Krause, proposing an Ordinance to amend the subject property's Future Land Use Map (FLUM) designation from Residential Low (RL) to Mixed Use/Commercial (MC). The following individual addressed the Board: Rudy Krause. After discussion, motion was made by Commissioner DiGennaro and seconded by Commissioner Murphy to adopt the following Resolution. Motion carried unanimously. RESOLUTION NO. 003-2009 Said Resolution is incorporated herein by reference. A Public Hearing was held to consider transmittal of a Resolution to the Department of Community Affairs, proposing an Ordinance amending the Potable Water Element and the Intergovernmental Coordination Element of the Monroe County Year 2010 Comprehensive Plan, creating Policy 701.1.6, Policy 701.1.7, Policy 1301.1.15, and 1301.1.16 regarding water supply concurrency and adopting a 10-year Water Supply Plan. There was no public input. After discussion, motion was made by Commissioner Wigington and seconded by Commissioner Murphy to adopt the following Resolution. Motion carried unanimously. RESOLUTION NO. 004-2009 Said Resolution is incorporated herein by reference. A Public Hearing was held to consider transmittal of a Resolution to the Department of Community Affairs, proposing an Ordinance revising sections of the Transportation Element. Recreation and Open Space Element, and Intergovernmental Coordination Element of the Monroe County Year 2010 Comprehensive Plan regarding the Florida Keys Scenic Highway and the Florida Keys Overseas Heritage Trail, creating Policy 301.6.4, Policy 301.6.5, Policy 1201.8.5, Policy 1201.8.6, Policy 1301.4.10, and Policy 1301.4.11. There was no public input. After discussion, motion was made by Commissioner Wigington and seconded by Commissioner DiGennaro to adopt the following Resolution. Motion carried unanimously. RESOLUTION NO. 005-2009 3 Said Resolution is incorporated herein by reference. A Public Hearing was held to consider transmittal of a Resolution to the Department of Community Affairs, proposing an Ordinance to amend Policy 102.8.5 of the Monroe County Year 2010 Comprehensive Plan to allow the provision of wastewater service and utilities necessary for its operation to developed properties located with the Coastal Barrier Resources System. Drew Trivette, Growth Management Director discussed the matter and recommended that the Board postpone this item until the next Transmittal Hearing date - (late July 09' or early August 09'). The following individuals addressed the Board: Donald Craig, Alicia Putney, representing the Solar Community of No Name Key; Halett Doville, Jim Newton, and Mary Frances Bakke. After discussion, motion was made by Commissioner DiGennaro and seconded by Commissioner Murphy to table the item. During discussion, Commissioner Murphy withdrew her second. Motion was then made by Commissioner DiGennaro and seconded by Commissioner Carruthers to continue the item to be heard by the Board no later than July 2009. The Board also discussed the FKAA completing their analysis by that date. Roll call vote was taken with the following results: Commissioner Carruthers Yes Commissioner DiGennaro Yes Commissioner Murphy No Commissioner Wigington No Mayor Neugent Yes Motion carried. A Public Hearing was held to consider transmittal of a Resolution to the Department of Community Affairs, proposing an Ordinance revising sections of the Livable CommuniKeys Master Plan for Big Pine Key and No Name Keys, amending sections to be consistent with the Habitat Conservation Plan, Incidental Take Permit, and Monroe County Code. There was no public input. Drew Trivette, Growth Management Director discussed staff recommendation and the change as authorized by the U.S. Fish and Wildlife Service to action item 8.1.2c. Motion was made by Commissioner Murphy and seconded by Commissioner DiGennaro to adopt the following resolution, as revised. Motion carried unanimously. RESOLUTION NO. 006-2009 Said Resolution is incorporated herein by reference. There being no further business, the meeting of the Board of County Commissioners was adjourned. Danny L. Kolhage, Clerk and ex-officio Clerk to the Board of County Commissioners Monroe County, Florida e Isabel C. DeSantis, Deputy Clerk BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: January 26, 2009 Division: Growth Management Bulk Item: Yes No X Department: Planning & Environmental Resources Staff Contact Person: Mitchell N. Harvey. AICP, Comprehensive Planning Manager AGENDA ITEM WORDING: A public hearing to consider transmittal of a resolution to the DCA, proposing an ordinance to amend Policy 102.8.5 of the Monroe County Year 2010 Comprehensive Plan allow the provision of wastewater service and utilities necessary for its operation to developed properties located within the Coastal Barrier Resources System. ITEM BACKGROUND: The Planning Commission held a public hearing in Marathon on July 23, 2008 and based, on the facts presented at the meeting, the Planning Commission recommended approval of the Policy Document amendment to the Board of County Commissioners. PREVIOUS RELEVANT COMMISSION ACTION: N/A CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: Approval TOTAL COST: N/A BUDGETED: Yes No N/A COST TO COUNTY: N/A SOURCE OF FUNDS: N/A REVENUE PRODUCING: Yes No N/A AMOUNT PER MONTH: N/A Year APPROVED BY: County Attorney OMB / Purchasing Risk Management DOCUMENTATION: Included X Not Required DISPOSITION: AGENDA ITEM # �r 1 Ir - 1 2 MEMORANDUM 3 MONROE COUNTY PLANNING & ENVIRONMENTAL RESOURCES DEPARTMENT 4 file strive to be caring, professional and fair 5 6 To: Monroe County Planning Commission 7 8 Through: Andrew O. Trivette, Director of Growth Management 9 Townsley Schwab, Acting Director of Env. & Planning Resources 10 11 From: Mitchell N. Harvey, AICP, Comprehensive Planning Manager 12 13 Date: January 9, 2009 14 15 Subject: Request for an Amendment to Policy 102.8.5 of the Monroe County Year 2010 16 Comprehensive Plan to allow the provision of wastewater service and utilities 17 necessary for its operation to developed properties located within the Coastal 18 Barrier Resource System 19 20 Meeting: January 26, 2009 21 22 1 REQUEST 23 24 In response to direction by the Board of County Commissioner on June 181 2008, the Growth 25 Management Division is requesting to amend the Monroe County Year 2010 Comprehensive 26 Plan to allow the provision of wastewater service to properties located within the Coastal 27 Barrier Resources System Overlay District together with the provision of those utilities 28 required to provide sanitary wastewater collection and treatment.. This will give Monroe 29 County the ability to more closely comply with the State requirement to provide centralized 30 sewer services throughout the Florida Keys by July 1, 2010. 31 32 Policy 102.8.5 of the Monroe County Year 2010 Comprehensive Plan is proposed to be 33 amended to include the following: 34 35 Monroe County shall initiate efforts to discourage the extension of facilities and services 36 provided by the Florida Keys Aqueduct Authority and private providers of electricity and 37 telephone service to undeveloped CBRS units;. excluding central sanitary wastewater service 38 and those utilities required to provide sanitary wastewater collection and treatment ^ 39 40 II PROCESS 41 42 Amendments to the Goals, Objectives, and Policies of the Comprehensive Plan may be 43 proposed by the Board of County Commissioners (BOCC), the Planning Commission or the 44 Director of Planning. The Director of Planning shall review and process amendments and Page I of 7 Reviewed by W:\Planning\Working Folders\Harvey-Mitch\Wastewater\Wastewater GOP - BOCC Staff Report.doc I pass them on to the Development Review Committee and the Planning Commission for 2 recommendation and final approval by the BOCC. 4 The Planning Commission and the BOCC shall each hold at least one public hearing on a 5 proposed amendment. The Planning Commission shall review the amendment, the reports 6 and recommendations of the Department of Planning & Environmental Resources and the 7 Development Review Committee, and the testimony given at the public hearing, and shall 8 submit its recommendations and findings to the BOCC. The BOCC shall consider the staff 9 report, recommendation, and testimony given at the public hearings and may either deny the 10 application or adopt or not adopt a resolution transmitting the proposed amendment to the 11 DCA. Amendments are then reviewed by the Florida Department of Community Affairs and 12 returned to the County with objections, rejections and comments to be considered prior to 13 adoption of the ordinance. Then, an adoption hearing is scheduled for the BOCC. 14 15 I11 RELEVANT PRIOR COUNTY ACTIONS 16 17 June 2000 — BOCC approved the Monroe County Wastewater Management Plan; 18 December 19, 2001 — BOCC approved Ordinance 043-2001 amending the Monroe County Land 19 Development Regulations to include Section 9.5-258, thereby establishing the Coastal Barrier 20 Resources System Overlay; 21 April 16, 2008 — BOCC approved the expansion of the Sumerland/Cudjoe/Sugarloaf Regional 22 Wastewater System to cover design for Big Pine Key and Lower Sugarloaf Key; 23 May 21, 2008 — BOCC approved central sanitary wastewater service to the property owners of 24 No Name Key through inclusion of the area in the Lower Keys Regional Service Area 25 wastewater treatment and collection system. 26 June 18, 2008 — BOCC discussed an item to direct staff to amend Section 9.5-258 Coastal 27 Barrier Resources System Overlay District of the Monroe County Code to eliminate the 28 prohibition of the establishment of central wastewater treatment collection systems and utilities 29 for no Name Key. Following public discussion, the BOCC approved a motion that the 30 prohibition of utilities is reworded such that the focus and priority be placed on wastewater first 31 and any discussion of electric or any other utility is deferred until the wastewater goal is 32 accomplished. The Board directed staff to amend the Land Development Regulations and the 33 Comprehensive Plan. 34 June 18, 2008 — BOCC approved a resolution to remove the developed residential area the 35 unrecorded plat on the east end of No Name Key, otherwise originally known as "Islands End" 36 from the Coastal Barrier Resource System. 37 July 22, 2008 — Development Review Committee held a meeting, received comments from the 38 public, and recommended approval to the Planning Commission. 39 July 23, 2008 — The Monroe County Planning Commission held a public hearing, received 40 comments from the public, and recommended approval to the BOCC. 41 42 IV REVIEW OF APPLICATION 43 44 A. Consistency of the proposed amendment moth the provisions and intent of the jVfonroe 45 County Year 2010 Comprehensive Plan: 46 Page 2 of 7 Reviewed by WAPlanning\Working Folders\Harvey-Mitch\Waster+pater\Wastet�ater GOP - BOCC StaffReport.doc I Existing Policy 102.8.5 discourages the extension of utilities within the Coastal Barrier 2 Resources System Overlay District. The proposed amendment to the Monroe County 3 Land Development Regulations clarifies the intent of Monroe County to provide 4 centralized wastewater service throughout the unincorporated area by July 1, 2010 as 5 mandated by the Chapter 99-395, Laws of Florida. An amendment to Section 9.5-258(b) 6 of the Monroe County Code is being considered concurrently with the proposed 7 amendment. to the Comprehensive Plan. 8 9 B. Consistency of the proposed amendment with the provisions and intent of Chapter 9.5 of 10 the Monroe County, Land Development Regulations: 11 12 In accordance with MCC Sec. 9.5-511(d)(5)b., the BOCC may consider the adoption of 13 an ordinance enacting the proposed change based on one (1) or more of the following 14 factors: 15 16 i. Changed projections (e.g., regarding public service needs) from those on which the 17 text or boundary was based: 18 19 None. 20 21 ii. Changed assumptions (e.g., regarding demographic trends): 22 23 None. 24 25 iii. Data errors, including errors in mapping, vegetative types and natural features 26 described in Volume I of the Monroe County Year 2010 Comprehensive Plan: 27 28 None. 29 30 iv. New issues; 31 32 In order to improve near shore water quality, the State of Florida requires the 33 provision of centralized wastewater service to eliminate sewage disposal surface 34 water discharges within Monroe County by the July 1, 2010 (Chapter 99-395, Section 35 6, Laws of Florida). On June 18, 2008, the BOCC directed staff to amend the 36 Comprehensive Phan and Land Development Regulations to allow wastewater service 37 within the Coastal Barrier Resources System Overlay District. An amendment to 38 Policy 102.8.5 of the Monroe County Year 2010 Comprehensive Plan is concurrently 39 being considered to allow wastewater service within the Coastal Barrier Resources 40 System Overlay District, together with the provision of those utilities required to 41 provide sanitary wastewater collection and treatment. Provision of wastewater service 42 within the coastal areas of Monroe County will further the mandate of the State to 43 improve near shore water quality through the elimination of sewage disposal surface 44 water discharges. 45 46 v. Recognition of a need for additional detail or comprehensiveness: Page 3 of 7 Reviewed by WAPlanning\Working Folders\Harvey-Mitch\Wastewater\Wastewater GOP - BOCC Staff Report.doe I 2 The proposed amendment clarifies the necessity to provide centralized wastewater 3 service within Monroe County, which includes the Coastal Barrier Resources System 4 Overlay District. 5 6 vi. Data updates: 7 8 None. 9 10 C. Consistency with the Principles for Guiding Development in the Florida Keys Area of 11 Critical State Concern: 12 13 All land development regulations enacted, amended or rescinded within a area of critical 14 state concern must be consistent with the Principles for Guiding Development, Section 15 380.0552(7), Florida Statutes. The proposed GOP amendment promotes and furthers the 16 following Principles in Section 380.0552(7): 17 18 i. To strengthen local government capabilities for managing land use and 19 development so that local government is able to achieve these 20 objectives without the continuation of the area of critical state concern 21 designation. 22 23 The proposed amendment strengthens Monroe County's ability to 24 provide centralized wastewater service to existing and future land uses 25 within the unincorporated area. Growth controls presently in place, such 26 as the Residential Rate of Growth Ordinance (ROGO) and Non- 27 residential Rate of Growth Ordinance (NROGO), effectively moderates 28 how much new development will occur within Monroe County. 29 30 One focus of the Area of Critical State Concern program was 31 environmental protection. The associated ACSC work program 32 supports the efforts by Monroe County to improve near shore water 33 quality by developing and implementing centralized wastewater and 34 storm water management plans. 35 36 ii. To protect shoreline and marine resources including mangroves, coral 37 reef formations, seagrass beds, wetlands, fish and wildlife, and their 38 habitat. 39 40 The provision of centralized wastewater service will improve near shore 41 water quality, enhancing the Florida Key's unique shoreline marine 42 habitats which include mangroves, coral reefs, and seagrass beds, 43 44 iii. To ensure the maximum well-being of the Florida Keys and its citizens 45 through sound economic development. 46 Page 4 of 7 Reviewed by WAPlanning\Working Folders\H arvey-M itch\ Wastewater\Wastewater GOP- BOCC Staff Report.doc I Centralized wastewater service is an essential component of residential 2 and nonresidential development, reducing the incidence of near shore 3 water pollution that affects the well-being of both Florida Keys citizens 4 and its tourist visitors who are an essential supporter of the local 5 economy. Eco-Tourism has long been an economic driver within 6 Monroe County and the Florida Keys. Maintaining the health of near 7 shore habitat is consequently a high priority to the Florida Keys and its 8 citizens. 9 10 iv. To limit the adverse impacts of development on the quality of water 11 throughout the Florida Keys. 12 13 The provision of centralized wastewater service will improve near shore 14 waxer quality through the elimination of septic hot spots and the use of 15 uncontrolled individual septic systems whose contaminants leach into 16 the adjacent near shore waters. 17 18 V. To protect the value, efficiency, cost-effectiveness, and amortized life 19 of existing and proposed major public investments, including sewage 20 collection and disposal facilities. 21 22 The proposed amendment will give the Florida Keys Aqueduct 23 Authority the ability to design, construct, and maintain centralized 24 wastewater service throughout the Monroe County unincorporated area. 25 Economies of scale are extremely important to public utilities in our 26 current budgetary environment. Limitations on the expansion of 27 wastewater services are prohibiting economies of scale. Allowing 28 additional users to access the proposed centralized wastewater system 29 will promote lower user fees. The present Coastal Barrier Resource 30 System Overlay District limits our ability to do this. 31 32 vi. To protect the public health, safety, and welfare of the citizens of the 33 Florida Keys and maintain the Florida Keys as a unique Florida 34 Resource. 35 36 The maintenance of near shore water quality is an essential element of 37 the Florida Keys. Pollution of the Keys' aquatic habitat can result in the 38 permanent degradation and destruction of the Florida Keys' unique 39 marine resources. Near shore water pollution has resulted in the 40 periodic closing of public beaches and promotes algae growth that 41 destroys coral reefs that are unique to the Florida Keys. Implementation 42 of a County -wide centralized wastewater system will significantly 43 reduce the level of near shore pollution resulting from individual septic 44 systems through protecting public health, safety and welfare as well as 45 our most important resource. 46 Page 5 of 7 Reviewed by WAPlanning\Working Folders\Harvey-Mitch\Wastewater\Wastewater GOP - BOCC Staff Report.doc I D. Impact on Community Character: 2 3 The proposed amendment will allow existing and future land uses located within Coastal 4 Barrier Resources System Overlay to be served by centralized wastewater service, to 5 promote, improve and protect near shore water quality. Monroe County presently 6 maintains several unique land use controls, such as the Tier System, Rate of Growth 7 Ordinance (ROGO), Nonresidential Rate of Growth Ordinance (NROGO), and the 8 Incidental Take Permit (ITP, 6/9/96). It is anticipated that the proposed amendment will 9 not affect the rate of new growth in Monroe County. However, the proposed amendment 10 will insure that as growth proceeds within the context of these regulations, centralized 11 wastewater service will be available concurrent with the impact of existing land uses and 12 new development. No changes in land use density, intensity or community character is 13 anticipated as a result of the proposed amendment. This amendment will result in the 14 enhancement of near shore water quality, which will in turn promote a more sustainable 15 shoreline and near shore aquatic environment. 16 17 18 V FINDINGS OF FACT 19 20 1. The Coastal Barrier Resources Act (CBRA) of 1982 established the Coastal Barrier 21 Resources System (CBRS) to restrict the federally subsidized development of coastal barrier 22 areas and specifically prohibited the "construction or purchase of any structure, 23 appurtenance, facility, or related infrastructure" 16 U.S.C. 3504(a)(1) in said areas. 24 25 2. Monroe County has 15 designated units of the CBRS which can be found listed in Table 26 3.21 of the Monroe County Year 2010 Comprehensive Plan Technical Document and 27 illustrated on the Existing Land Use Maps of the Comprehensive Plan Map Atlas. 28 29 3. Objective 102.8 of Monroe County Year 2010 Comprehensive Plan states: "Monroe 30 County shall take actions to discourage private development in areas designated as units of 31 the Coastal Barrier Resources System. 32 33 4. Policy 102.8.5 of Monroe County Year 2010 Comprehensive Plan states: "Upon adoption 34 of the Comprehensive Plan, Monroe County shall initiate efforts to discourage the extension 35 of facilities and services provided by the Florida Keys Aqueduct Authority and private 36 providers of electricity and telephone services to CBRS units". 37 38 5. Current Flood Insurance Rate Maps published for the National Flood Insurance Program 39 by the Federal Emergency Management Agency, indicate there are five developed residential 40 areas (with five structures or less per acre) and one commercial area that fall within the 41 CBRS designation; and 42 43 6. On December 18, 2001, the Board of County Commissioners adopted Ordinance No. 043- 44 2001, creating Section 9.5-258 of the Monroe County Code which established a Coastal 45 Barrier Resources System Overlay District, the purpose of which is to implement the policies 46 of the comprehensive plan by prohibiting the extension and expansion of specific types of Page 6 of 7 Reviewed by WAPlanning\Working Fo lders\Harvey- M i tch\W as tewater\Wastewa ter COP - BOCC Staff Report.doe 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 public utilities to or through lands designated as a unit of the Coaster Barrier Resources System. 7. Pursuant to Chapter 99-395, Laws of Florida, Monroe County has been mandated by the State of Florida to provide a centralized sewer system by July 1, 2010 as a means of improving near shore water quality within the Florida Keys. 8. On June 18, 2008, the Growth Management Staff was directed by the Board of County Commissioners to amend the comprehensive plan and land development regulations to reword the prohibition on utilities such that the focus and priority be placed on wastewater first and any discussion of electric or any other utility be deferred until the wastewater goal is accomplished. VI CONCLUSIONS OF LAW 1. The proposed amendment will not affect the existing or future land use character of Monroe County. 2. The proposed amendment is internally consistent with the Monroe County Comprehensive Plan. 3. The proposed amendment will allow a more comprehensive implementation of a centralized wastewater service system throughout the unincorporated area of Monroe County as required by Chapter 99-395, Laws of Florida. VII RECOMMENDATION Staff recommends approval to the Monroe County Board of County Commissioners. VIII ATTACHMENTS 1. Monroe County Code and Comprehensive Plan Citations 2. Ordinance No. 43-2001 3. Coastal Barrier Resources Act 4. Coastal Barrier Resources Act Reauthorization 5. Chapter 99-395, Laws of Florida 6. Resolution No.179-2008 7. CBRS No Name Key Unit FL-50 Map Page 7 of 7 Reviewed by WAPlanning\Working Folders\Harvey-Mitch\CBRS\Wastewater GOP - BOCC Staff Report.doc BOCC TRANSMITTAL RESOLUTION RESOLUTION NO. -2009 A RESOLUTION BY THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS TRANSMITTING TO THE FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS AN ORDINANCE AMENDING THE MONROE COUNTY YEAR 2010 COMPREHENSIVE PLAN, AMENDING POLICY 102.8.5 BY ALLOWING THE PROVISION OF WASTEWATER SERVICE AND THE UTILITIES NECESSARY FOR ITS OPERATION TO DEVELOPED PROPERTIES LOCATED WITHIN THE COASTAL BARRIER RESOURSES SYSTEM WHEREAS, the Monroe County Board of County Commissioners held a public hearing for the purpose of considering the transmittal to the Florida Department of Community Affairs for review and comment of a proposed amendment to the Monroe County Year 2010 Comprehensive Plan, changing Policy 102.8.5 of the Policy Document; and WHEREAS, the Monroe County Planning Commission and the Monroe County Board of County Commissioners support the requested polcy change; NOW THERFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Section 1: The Board of County Commissioners does hereby adopt the recommendation of the Planning Commission to transmit the ordinance for adoption of the proposed amendment. Section 2: The Board of County Commissioners does hereby transmit the proposed amendment as part of the first (ls) set of comprehensive plan amendments for 2009 to the Florida Department of Community Affairs for review and comment in accordance with the provisions of F. S. Sec. 163.3184; and Section 3. The Monroe County staff is given authority to prepare and submit the required transmittal letter and supporting documents for the proposed amendment in accordance with the requirements of 9J-11.006 of the Florida Administrative Code; and Section 4. The Clerk of the Board is hereby directed to forward a certified copy of this resolution to the Director of Planning. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a special meeting held on the 261h day of January A.D., 2009. Mayor George Neugent Mayor Pro Tern Sylvia Murphy Commissioner Kim Wigington Commissioner Heather Carruthers Commissioner Mario Di Gennaro BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA Mayor George Neugent (SEAL) ATTEST: DANNY L. KOLHAGE, CLERK MONRpE COUNTY ATTORNEY APPRO O Ag FORM ate: y n DEPUTY CLERK BOCC ORDINANCE ORDINANCE NO. -2009 AN ORDINANCE AMENDING POLICY 102.8.5 OF THE MONROE COUNTY YEAR 2010 COMPREHENSIVE PLAN TO ALLOW THE PROVISION OF CENTRAL WASTEWATER SERVICE AND SUPPORT UTILITIES TO DEVELOPED PROPERTIES LOCATED WITHIN THE COASTAL BARRIER REOURCES SYSTEM; PROVIDING FOR SEVERIBILITY; PROVIDING FOR THE REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; DIRECTING THE CLERK OF THE BOARD TO FORWARD A CERTIFIED COPY OF THIS ORDINANCE TO THE FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS; PROVIDING AN EFFECTIVE DATE; AND PROVIDING FOR THE INCORPORATION INTO THE COMPREHENSIVE PLAN WHEREAS, the Coastal Barrier Resources Act (CBRA) of 1982 established the Coastal Barrier Resources System (CBRS) to restrict the federally subsidized development of coastal barrier areas 16 U.S.C. 3504(a)(1); and WHEREAS, Monroe County has 22 designated units of the CBRS identified by the U.S. Fish and Wildlife Service; and WHEREAS, Objective 102.8 of Monroe County Year 2010 Comprehensive Plan states: "Monroe County shall take actions to discourage private development in areas designated as units of the Coastal Barrier Resources System [W-5.006(3)(b)4]' ; and WHEREAS, Policy 102.8.5 of Monroe County Year 2010 Comprehensive Plan states: "Upon adoption of the Comprehensive Plan, Monroe County shall initiate efforts to discourage the extension of facilities and services provided by the Florida Keys Aqueduct Authority and private providers of electricity and telephone services to CBRS units"; and WHEREAS, on December 18, 2001, the Board of County Commissioners adopted Ordinance No. 043-2001, creating Section 9.5-258 of the Monroe County Code which established a Coastal Barrier Resources System Overlay District, the purpose of which is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to or through lands designated as a unit of the Coastal Barrier Resources System; and WHEREAS, Pursuant to Chapter 99-395, Laws of Florida, Monroe County has been mandated by the State of Florida to provide a centralized sewer system by 2010 as a means of improving near shore water quality within the Florida Keys, and WHEREAS, on June 18, 2008, the Growth Management Staff was directed by the Board of County Commissioners to amend the comprehensive plan and land development regulations to reword the prohibition on utilities such that the focus and priority be placed on wastewater treatment first and any discussion of electric or any other utility, other than those required to efficiently support a central wastewater collection system, be deferred until the wastewater goal is accomplished; and WHEREAS, during a regular meeting held on July 23, 2008, the Monroe County Planning Commission conducted a public hearing on the proposed text, and recommended approval of the proposed text; and WHEREAS, the Monroe County Board of County Commissioners held a public hearing to consider the transmittal of the proposed amendment to the state land planning agency on January 21, 2009; and WHEREAS, it is the desire of the Monroe County Board of County Commissioners that the following amendment to the Comprehensive Plan be adopted and sent to the state land planning agency for approval; NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Section 1. Policy 102.8.5 of the Monroe County Year 2010 Comprehensive Plan is hereby amended to include the following: Monroe County shall initiate efforts to discourage the extension of facilities and services provided by the Florida Keys Aqueduct Authority and private providers of electricity and telephone service to undeveloped CBRS units..-, excluding central sanitary wastewater service and those utilities required to provide central sanitary wastewater collection and treatment. Section 2. If any section, subsection, sentence, clause, item, change, or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such validity. Section 3. All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed to the extent of said conflict. Section 4. This ordinance shall be transmitted by the Planning Department to the Department of Community Affairs to determine the consistency of this ordinance with the Florida Statutes. Section 5. This ordinance shall be filed in the Office of the Secretary of State of Florida, but shall not become effective until a notice is issued by the Department of Community Affairs or Administrative Commission approving the ordinance. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a special meeting held on the 26 h day of January A.D., 2009. Mayor George Neugent Mayor Pro Tern Sylvia Murphy Commissioner Kim Wigington Commissioner Heather Carruthers Commissioner Mario Di Gennaro BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA WA (SEAL) ATTEST: DANNY L. KOLHAGE, CLERK DEPUTY CLERK Mayor George Neugent M=ZQ Date: ORDINANCE 003 -2009 AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS REPEALING AND RESCINDING ORDINANCE No. 20-2008 CONCERNING THE PROVISION OF CENTRAL SANITARY SEWER AND OTHER UTILITIES TO COASTAL BARRIER RESOURCE UNITS; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF INCONSISTENT PROVISIONS; PROVIDING FOR TRANSMITTAL TO THE DEPARTMENT OF COMMUNITY AFFAIRS AND THE SECRETARY OF STATE; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Monroe County is in an area designated as an area of critical state concern; and WHEREAS, the Monroe County Board of County Commissioners passed a land development Ordinance 20-2008 on September 17, 2008 concerning the provision of central sewer service and other utilities to be provided to properties within the Coastal Barrier Resource System (CBRS) units within the jurisdiction of Monroe County; and WHEREAS, the County's current comprehensive plan discourages the provision of utilities within CBRS units; and WHEREAS, the Department of Community Affairs (DCA) provided its intent to find Ordinance No. 020- 2008 not in compliance and inconsistent with the County's 2010 Comprehensive Plan and the principles for guiding development as set forth in Chapter 380 of the Florida Statutes in Final Order No. 08-OR-352, stating also that there was not enough data and analysis, and that the ordinance was not specific enough in it s application to certain CBRS units; and WHEREAS, a member of the public has appealed the DCA's Final Order; and WHEREAS, land development regulations are not effective in an area of critical state concern until the DCA provides notification that the ordinance is consistent with the County's comprehensive plan and the principles for guiding development; and WHEREAS, the Board is following the process to adopt a Comprehensive Plan amendment concerning this same subject at the second transmittal for the year 2009; and WHEREAS, the language of the land development regulation may not accurately reflect what is included in the Comprehensive Plan amendment; and WHEREAS, the Planning Commission considered this matter at a public hearing on February 11, 2009, and WHEREAS, the Board of County Commissioners has considered the comments from the DCA, staff, the Planning Commission, and the public; and WHEREAS, based on the findings of the DCA and advice of the County Attorney, and considering the input from staff and recommendation of the Planning Commission, the Board has found that it is in the best interest of the public not to pursue the appeal of the final order and directed staff not to appeal the order, but to rescind Ordinance 20-2008; NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Section 1. Repealer. Ordinance No. 20-2008 is hereby rescinded and repealed in its entirety. Section 2. Severability. If any section, paragraph, subdivision, clause, sentence or provision of this ordinance shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, invalidate, or nullify the remainder of this ordinance, but the effect thereof shall be confined to the section, paragraph, subdivision, clause, sentence, or provision immediately involved in the controversy in which such judgment or decree shall be rendered. Section 3. Conflicting Provisions. In the case of direct conflict between any provision of this ordinance and a portion or provision of any appropriate federal, state, or County law, rule code or regulation, the more restrictive shall apply. Section 4. Transmittal. This ordinance shall be transmitted by the Planning and Environmental Resources Department to the Florida Department of Community Affairs to determine the consistency of this ordinance with the Florida Statutes and as required by F.S. 380.05(6) and (11). Section 5. Filing. This ordinance shall be filed in the Office of the Secretary of the State of Florida but shall not become effective until a notice is issued by the Department of Community Affairs or Administration Commission approving the ordinance. Section 6. Effective Date. This ordinance shall become effective as provided by law and stated above. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a regular meeting held on the 18th of February 2009. Mayor George Neugent Mayor Pro Tern Sylvia Murphy Commissioner Kim Wigington Commissioner Heather Carruthers Commissioner Mario Di Gennaro Aiest Ij-kWV L. K LHAGE, CLERK By Deputy Cler c Yes r" Yes 7�'C'�yi.� O Yes Orn�C -n Yes _rW Yes ;0 rn 4 _ = C1 MONROE COUNTY BOAICQ'ON �. COUNTY COMMISSIONER'S J By Mayor George Neugent MONROE C TY ATTORNEY ROV D TOfORM MONROE COUNTY COURTHOUSE 500 WHITEHEAD STREET, SUITE 101 KEY WEST, FLORIDA 33040 TEL. (305) 294-4641 FAX (305) 295-3663 BRANCH OFFICE: MARATHON SUB COURTHOUSE 3117 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 TEL. (305) 289-6027 FAX (305) 289-1745 `Saco uNrrc �uJ .'���Gurp�E CG o� CLERK OF THE CIRCUIT COURT MONROE COUNTY www.clerk-of-the-court.com Ms. Liz Cloud, Program Administrator Administrative Code & Weekly R.A. Gray Building 500 S Bronough Street Tallahassee FL 32399-0250 Dear Ms. Cloud, March 12, 2009 BRANCH OFFICE: PLANTATION KEY GOVERNMENT CENTER 88820 OVERSEAS HIGHWAY PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 FAX (305) 852-7146 ROTH BUILDING 50 HIGH POINT ROAD PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 FAX (305) 853-7440 Via Certified Mail 70051160 0000 3841 2372 Enclosed is a certified copy of Ordinance No. 003-2009 repealing and rescinding Ordinance No. 020-2008 concerning the provision of central sanitary sewer and other utilities to coastal barrier resource units; providing for severability; providing for repeal of inconsistent provisions; providing for transmittal to the Department of Community Affairs and the Secretary of State; providing for an effective date. This Ordinance was adopted by the Monroe County Board of County Commissioners at a Regular Meeting, held in formal session, on February 18, 2009. Please file for record. Should you have any questions please feel free to contact me at (305) 295-3130. Danny L. Kolhage Clerk of the Circuit Court and ex officio Clerk to the Board of County Commissioners by: Pamela G. Hancock, D.C. cc: Via E-Mail to thefollowing: Municipal Code Corporation Growth Management County Attorney BOCC File U.S. Postal Service, CERTIFIED MAIL_,, RECEIPT Insurance Coverage Provided) {Domestic Mail Only, No lion visrl our websitc ;It www,usps!com For dclivcry inform: Ln Pro ut C3 1 Administrative Code and Weekly r` i%t�xAe3�A:•-Qray- tJ--------------- °500_Snuih.Ernnowb.-SIMAt--------------------- °"'01aliahassee, Florida 32399-0250 ■ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery Is desired. ■ Print your name drid address on the reverse so that we can return the card to you. ■ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: A Signature X B. Received by (Printed Name) D. Is delivery address different If YES, enter delivery addre � � o ❑ Agent ❑ Addressee C. Date of Delivery 1? ❑ Yes ❑ No Program Aaministrator Administrative Code ano WeeK-�11 - R.A. Gray Building .900 South Bronough Street a. rerype 0 ffi -fliahassee, Florida 32399-025: Certlfled ail ❑ Registered Ipt for Merchandise ❑ Insured Mail ❑ C.O 0 0 3 2 0 0 4. Restricted Delivery? (Extra ❑ Yes 2. ArticleNumber7005 1160 0000 3841 2372 (Transfer from servke label Ps Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 ; Page I of 1 Pam Hancock From: "Andrea Hoyle" <AHoyle@municode.com> To: <phancock@monroe-clerk.com> Sent: Friday, March 13, 2009 9:17 AM Subject: RE: Ordinance 003-2009 We have received your files. If you have any questions or concerns, need addiditonal information, or you do not receive this response within 24 to 48 hours of sending your material please contact us at the information below. Ord Admin. Ords@_municode.com 1-800-262-2633 (850) 576-3172 ext. 235 Fax No. 850-575-8852 P.O. Box 2235 1700 Capital Circle, S.W. Tallahassee, FL 32317-2235 From: Ords Admin Sent: Friday, March 13, 2009 6:50 AM To: Andrea Hoyle Subject: FW: Ordinance 003-2009 From: Pam Hancock [mailto:phancock@monroe-clerk.com] Sent: Thursday, March 12, 2009 3:25 PM To: Hanson-Donna@MonroeCounty-FL.Gov; Terri Marble; Lundstrom-Tamara@MonroeCounty-FL.Gov; Wilma Corbin; Carol Schreck; Ords Admin Cc: Tezanos-Mayra@MonroeCounty-FL.Gov; Kathy Peters; Grimsley-Susan@MonroeCounty-FL.Gov Subject: Ordinance 003-2009 Attached is the above -mentioned Ordinance that was approved at the 2/18/09 BOCC meeting. 3/13/2009 Page 1 of 2 Pam Hancock From: <ords@municode.com> To: <phancock@monroe-clerk.com> Sent: Thursday, March 19, 2009 12:58 PM Subject: Acknowledgment of material received This is a computer generated email, please do not reply to this message. Municipal Code Corporation P.O. Box 2235 1700 Capital Circle SW. (32310) Tallahassee, FL 32316-2235 850-576-3171 Fax:850-575-8852 info@munlcode com Monroe County, FL Code of Ordinances - 2008(14298) Supplement 2 Recorded: 311912009 11:36:10 AM We have received the following material through E-Mail. Document Adoption Ordinance No. 003-2009 2/18/2009 ***Click_here to see the full list of recorded ordinances for the next supplement.*** Or point your browsers at: http://www.municode.com/disposition/dislist.asp?jobid=109682 • You can also "GO G��FN" and reduce the number of supplement copies ou receive or just get a of the supplement to print your own copies.ask uz how - email Info@municode_.com. �temet version of your Code more often tha a printed supplement. We can update the Internet quarterly, mont�ily, even weekly. For additional information email Info@municode.com. • We can post newly enacted ordinances in the online Code after each meeting. E-mail us for more information at info municode.com. • Automate your agenda and completelegislat'ive I. process. Visit MCCi for more information. http://www.mccinnovations.com/products/agenda._asp . We can provide a solutionfor Document and Recofds Management, imaging or scanning services. Contact us for more information at info@mcclnnovations.com or visit MCCi. . Billin of o4 doy v:n? 1Ne can o1ovile invoice zInd statement rintin and procc�s m utility bills and tax i Is. or more in ormation emagl us aP Info@mccadvantage.com. • Need a better way to manage your Contracts? Visit MCCi's website to learn more about automating your contract management processes. MCCi • Ever need to search in several online Codes for a sample ordinance? Try our Multiple Code Searching. For more information email us at info@-Municode.com. • We can do more than just codes... Please visit our Company On-line Brochure at: http://www.munico.de.com/about/brochure.pdf 3/19/2009 Page 1 of 2 Pam Hancock From: <ords@municode.com> To: <phancock@monroe-clerk.com> Sent: Monday, March 23, 2009 11:25 AM Subject: Acknowledgment of material received This is a computer generated email, please do not reply to this message. Municipal Code Corporation P.O. Box 2235 1700 Capital Circle Sw. (32310) Tallahassee, FL 32316-2235 850-576-3171 Fax: 850-575-8852 info@municode,com Monroe County, FL Land Development Code - 2008(14299) Supplement 2 Recorded: 3/19/2009 12:08:24 PM We have received the following material through E-Mail. Document Adoption Ordinance No. 003-2009 2/18/2009 Ordinance No. 002-2009 2/18/2009 ***Click here to see the full list of recorded ordinances for the next supplement.*** Or point your browsers at: http://www.municode.com/disposition/dislist.asp?jobid=109690 • You can also "GO G� R and reduce the numl?er of supplement copies �ou receive or just get a of te supplement to print your n copies. sk u how - email info a municode.com. • Update the internet version of your Code more often than a printed supp ement. a can update the Internet quarterly, monthly, even weekly. For additional information email Info municode.com. • We can post newly enacted orr mances in t e online Code after each meeting. E-mail us for more information at infoQmunicode.com. • Automate your agenda and comps a legisTative process. Visit MCCi for more information. http_I/www_mccinnovations_com/prod_ucts/agen,da.asp • We can provide a soTu io�orl o umen and Records Management, imaging or scanning services. Contact us for more Information at info,@_mccin-novations.com or visit MCCi. • BiIlin pt ou .ddo . ? We can oxide invoice nd statement printin and proc�s�31nutllltyills and tax Ails. For more InTormation email us atq info mccadvantage.com. • ee aette� way to manage your Contracts? Visit MCCi's website to learn more about automating your contract management processes. MCCi • Ever need to search in several online Codes for a sample ordinance? Try our Multiple Code Searching. For more information email us at info@rnunicode.com. com. • We can do more than just codes... Please visit our Company 0n-line 'Bro6 die at: http://www m_unicode com/about/brochpre.pdf 3/23/2009 CHARLIE CRIST Governor March 23, 2009 STATE LIBRARY AND ARCHIVES OF FLORIDA Honorable Danny L. Kolhage Clerk of Circuit Court Monroe County 500 Whitehead Street, Suite 101 Key West, Florida 33040 Attention: Pamela G. Hancock, Deputy Clerk Dear Mr. Kolhage: KURT S. BROWNING Secretary of State Pursuant to the provisions of Section 125.66, Florida Statutes, this will acknowledge receipt of your letter dated March 12, 2008 and certified copy of Monroe County Ordinance No. 003-2009, which was filed in this office on March 18, 2009. Sincerely, Liz Cloud Program Administrator LC/srd 3 D n- r—T' rry rn rn rn t o DIRECTOR'S OFFICE R.A. Gray Building • 500 South Bronough Street • Tallahassee, Florida 32399-0250 850.245.6600 • FAX:850.245,6735 • TDD:850.922.4085 • http://dlis.dos.state.fl.us COMMUNITY DEVELOPMENT STATE LIBRARY OF FLORIDA STATE ARCHIVES OF FLORIDA 850.245.6600 • FAX: 850.245.6643 $50.245.6600 • FAX:850.245.6744 850.245,6700 . FAX: 850.488.4894 LEGISLATIVE LIBRARY SERVICE RECORDS MANAGEMENT SERVICES ADMINISTRATIVE CODE AND WEEKLY 850.488.2812 • FAX: $50.488.9879 850.245.6750 • FAX: $50.245,6795 850.245,6270 • FAX: 850.245.6282 DCA Final Order No.: DCA09-OR-107 STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS o � In re: MONROE COUNTY LAND Q o m DEVELOPMENT REGULATIONS " n -o b o ADOPTED BY MONROE COUNTY ORDINANCE NO. 003-2009 r === co o rn ORDER APPROVING MONROE COUNTY ORDINANCE 003-29.rn 70 AND VACATING DCA FINAL ORDER NO.: DCA08-OR-353 0 The Department of Community Affairs (the "Department") hereby issues its Order Approving Monroe County Ordinance 003-2009 rescinding and repealing Ordinance 20-2008, and Vacating DCA Final Order No.: DCA08-OR-352. FINDINGS OF FACT The Florida Keys Area is a statutorily designated area of critical state concern, and Monroe County is a local government within the Florida Keys Area. 2. On October 17, 2008, the Department received for review Monroe County (County) Ordinance No. 020-2008 ("Ord. 020-2008"), adopted by the County on September 17, 2008. On December 12, 2008, the Department issued DCA Final Order No.: DCA-OR- 352 rejecting County Ordinance No. 020-2008 as inconsistent with § 380.0552(7), Fla. Stat., the Principles for Guiding Development in an Area of Critical State Concern. 4. On February 18, 2009, the Monroe County Board of County Commissioners adopted Ordinance No. 003-2009, rescinding and repealing in its entirety Ordinance No. 020- 2008 concerning a land development regulation for the provision of central saniiary sewer and other utilities to be provided to properties within the Coastal Barrier Resource System units within the jurisdiction of Monroe County. Ordinance No. 003-2009 states that the Board of County Commissioners is following a process to consider and adopt a comprehensive plan amendment concerning the DCA Final Order No.: DCA09-OR-107 same subject area as Ordinance No. 020-2008. CONCLUSIONS OF LAW 6. The Department is required to approve or reject land development regulations that are enacted, amended, or rescinded by any local government in the Florida Keys Area of Critical State Concern. § 380.05(6), Fla. Stat., and § 380.0552(9), Fla. Stat. (2008). 7. Monroe County is a local government within the Florida Keys Area of Critical State Concern. § 380.0552, Fla. Stat. (2008) and Rule 28-29.002 (superseding Chapter 27F-8), Fla. Admin. Code. 8. "Land development regulations" include local zoning, subdivision, building, and other regulations controlling the development of land. § 380.031(8), Fla. Stat. (2008). The regulations rescinded by Ord. 003-2009 are land development regulations. 9. All land development regulations enacted, amended, or rescinded within an area of critical state concern must be consistent with the Principles for Guiding Development (the "Principles") as set forth in § 380.0552(7), Fla. Stat. See Rathkamp v. Department of Community Affairs, 21 F.A.L.R. 1902 (Dec. 4, 1998), aff'd, 740 So. 2d 1209 (Fla. 3d DCA 1999). The Principles are construed as a whole and no specific provision is construed or applied in isolation from the other provisions. 10. Ord. 003-2008 promotes and furthers the following Principles: (a) To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. (b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. (h) To protect the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major public investments, including: 1. The Florida Keys Aqueduct and water supply facilities; 2. Sewage collection and disposal facilities; 3. Solid waste collection and disposal facilities; 4. Key West Naval Air Station and other military whole. DCA Final Order No.: DCA09-OR-107 facilities; 5. .Transportation facilities; 6. Federal parks, wildlife refuges, and marine sanctuaries; 7. State parks, recreation facilities, aquatic preserves, and other publicly owned properties; 8. City electric service and the Florida Keys Electric Co- op; and 9. Other utilities, as appropriate. 11. Ord. 003-2009 is consistent with the Principles for Guiding Development as a WHEREFORE, IT IS ORDERED that Ord. 003-2009 is found to be consistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is hereby APPROVED, and ORDERED that DCA Final Order No.: DCA08-OR-352 is vacated. This Order becomes effective 21 days after publication in the Florida Administrative Weekly unless a petition is filed as described below. DONE AND ORDERED in Tallahassee, Florida. CHARLES GAUTHIER, AICP Director, Division of Community Planning Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 NOTICE OF ADMINISTRATIVE RIGHTS ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING ACTION. DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF MATERIAL FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE PROCEEDING, YOU ARE ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING. IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED ISSUE OF MATERIAL FACT CONTAINED IN THE DEPARTMENT'S ACTION, THEN THE ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED DCA Final Order No.: DCA09-OR-107 PURSUANT TO SECTIONS 120.569 AND 120.57(2) FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN INFORMAL ADMINISTRATIVE PROCEEDING, YOU MAY BE REPRESENTED BY COUNSEL OR BY A QUALIFIED REPRESENTATIVE, AND YOU MAY PRESENT WRITTEN OR ORAL EVIDENCE IN OPPOSITION TO THE DEPARTMENT'S ACTION OR REFUSAL TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS CHOSEN TO JUSTIFY ITS ACTION OR INACTION. IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE DIVISION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND 120.57(1), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON ALL THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT REBUTTAL EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS, AND TO FILE EXCEPTIONS TO ANY RECOMMENDED ORDER. IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF COMMUNITY AFFAIRS A WRITTEN PLEADING ENTITLED, "PETITION FOR ADMINISTRATIVE PROCEEDINGS" WITHIN 21 CALENDAR DAYS OF PUBLICATION OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECEIVED BY THE AGENCY CLERK, IN THE DEPARTMENT'S OFFICE OF GENERAL COUNSEL, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100. THE PETITION MUST MEET THE FILING REQUIREMENTS IN RULE 28- 106.104(2), FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH RULE 28-106.301, FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH RULE 28-106.201(2), FLORIDA ADMINISTRATIVE CODE. A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY RULE 28-106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSING MEDIATION DOES NOT AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING. YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE PROCEEDING OR A FORMAL HEARING IF YOU DO NOT FILE A PETITION WITH THE AGENCY CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL ORDER. DCA Final Order No.: DCA09-OR-107 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with the undersigned designated Agency Clerk, and that true and cojrrect copies have been furnished to the persons listed below by the method indicated this;Vlay of April, 2009. 1 , -�a- Paula Ford, Age y Clerk By U.S. Mail: Honorable George Nugent Mayor of Monroe County 25 Ship's Way Big Pine Key, Florida 33043 Danny L. Kolhage Clerk to the Board of County Commissioners 500 Whitehead Street Key West, Florida 33040 Andrew Trivette Growth Management Director 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 By Hand Delivery or Interagency Mail: Craig Diamond, Bureau of State Planning, DCA Tallahassee Rebecca Jetton, ACSC Administrator, DCA Tallahassee Richard E. Shine, Assistant General Counsel, DCA Tallahassee NO NAME KEY PROPERTY OWNERS ASSOCIATION Resolution 001-2009 RESOLUTION TO GRANT AUTHORITY TO PRESIDENT AND VICE-PRESIDENT This Resolution hereby gives authority to the President Kathryn Brown to take whatever action on behalf of the Associations that they deem necessary and appropriate to foster and advance the mission and goals of the Association to obtain commercial power and a long term solution to the wastewater sewer mandate to the homes on No Name Key. The President and Vice President have such immunity as set forth in the corporate Bylaws. More specifically, the President is hereby granted authority to do whatever is proper and prudent in representing and furthering the Association's goals and interest including, but not limited to, working with Monroe County Board of County Commissioners and county staff; working with Florida Keys Aqueduct Authority and staff; and working Keys Ener seeTiing grants or other type fundin o ———�nd�-- g pportunities for both electricity and sewers. The President is authorized to sign contracts, make public statements, respond to the media, file grants and funding applications, write newspaper articles regarding the Association's activities, and speak on behalf of the Association before local, state, and federal agencies. In the absence of the President, then the Vice -President James B. Newton has the authority to act on behalf of the Association and President and do whatever the President is empowered to do under this Resolution. The undersigned hereby certifies that she is the duly elected Secretary and the custodian of the If a books and records of a non-profit corporation duly formed pursuant to the laws of the state of Florida and that the foregoing is a true record of a resolution duly adopted at a meeting of the No Name Key Property Owners' Assoeiati id. That said meeting was held in accordance with state law and the Bylaws of the above -named Corporation, and that said Resolution No. 001- 2009 is now in full force and effect without modification or rescission. IN WITNESS WHEREOF, I have executed my name as Secretary on this day of 'Z*Z 2009. Secretary NONAME KEY HOMEOWNERS WHO ARE REQ TFSTrNG ELECTRICITY: AFFIDAVIT LIST: S3 Persons representing 30 HOMES = 70% 1. Appignani, Lou (Louja) 1957 Bahia Shores Rd. 2. Bakke, John & Mary 32766 Bimini Lane 3. Benton, Robert & Petranella 2148 Bahia Shores Rd. 4. Bone, Charles & Sabre 2011 Bahia Shores Rd. 5. Brown, Robert & Kathy 32731 Tortuga Lane 6. Coleman, Richard & Katheryn 2123 Spanish Channel Dr 7. Craig, Herbert & Lois 2060 No Name Drive 8. Daniels, Thomas 1931 Spanish Channel Dr 9. Jeanneret (Druckman), Karen 32860 Bimini Lane 10. Eaken, Robert & Ruth 32844 Bimini Lane IL Ebner, Timothy and Starcevich, Jill _______ — _ — 32865 Tortuga Lane e __ _ — — _ 12. Elbualy, Christine 31549 Old State Rd 13. Fletcher (Shew), Marsha 32763 Tortuga Lane 14. Hochber& Randall & Kristie Killam 32750 Bimini Lane 15. Kamm, Tracey & Leanne and Juhasz, Joe & Dina 32840 Bimini Lane 16. Lentini, John J. & Judy 32836 Bimini Lane 17. Licht, Mark & Marjorie 2101 Bahia Shores Rd. 18. McCClelland, Hal & Linda 32723 Tortuga Lane 19. McCurdy, Charles Joseph 32029 Marginella Dr 20. Morris, John & Linda 32773 Tortuga Lane ' :,,21. Newton, James & Ruth 2047 Bahia Shores Rd 22. Pichell, Francisco & Mircos 2081 Spanish Channel Dr 23. Raser, Randy 2100 No Name Drive 24. Reynolds, Julia & Robert 2160 Bahia Shores Rd 25. Sandroni, John 2084 No Name Drive 26. Sinclair, Thomas & Janie 2024 No Name Drive 27. Sweet, Richard & Jennifer 32857 Tortuga Lane i 28. Thompson, Dean 714 Tortuga Lane 29. Turkel, Bruce & Gloria 32734 Bimini Lane 30. Vickrey, Wm. Brad & Beth Ramsay 2035 Bahia Shores Rd (305) 245-1000 1001 James sheet PO 0oz 6100 K.ey West, FL 33041.6100 www.KeysEimWcom UTILITY BOARD OF THE CITY OF KEY WEST May 5, 2009 Mr. Robert D. Reynolds 10395 SW 58 Court Pinecrest, FL 33156 Re: Service Request 2160 Bahia Shores Road No Name Key, FL 33043 Dear Mr. Reynolds: Sent Via Certified Mail I received your request for power connection dated April 29, 2009. Based upon your letter and your indication that 75% of the No Name Key homeowners have signed notarized affidavits expressing a desire for commercial power and a willingness to pay for said service, KEYS will begin the line extension process. The line extension process will include: • Updating the estimates for overhead and underground costs of the Gne extension; • Opening a dialogue with Monroe County to determine if they will grant f > permission for both the water crossing (bridge attachment) and use of the rights -of -way and if approved, obtaining any technical constraints For the bridge attachment; • Opening a dialogue with ATT to see if opportunities exist to lease conduit from them; • issuing a formal bid to determine cost of water crossing (bridge attachment); • Working with other appropriate agencies for permits; • Formalizing the costs of fine extension once the "unknowns" have been determined; and • Obtaining signed line extension contracts and associated payments from homeowners. (How will be paying the actual costs for the line extension, the bridge crossing, any permits and associated mitigation, and any litigation that may ensue from the line extension.) Please provide KEYS with copies of the signed affidavits and any correspondence to date with Monroe County. We would appreciate being copied on future correspondence regarding commercial power to No Name Key so we are able to stay current on developments. I am returning your contract for service, deposit agreement, your check in the amount of $125.00 and other documents since we cannot process your request until commercial power has been established. KEYS will provide you with periodic updates as to the progress of the above. In the meantime, please feel free to contact met at 305-295-1020. Both Engineering Services and Customers Services will be working with you in the future. Contacts are Dale Finlgan at 305-295-1042 and Alex Tejeda at 305-295- 1088. Sincerely, Lynne Tejeda General Manager & CEO Lynn . CjWaQkevsenergty.com c: Utility Board Members Nathan Eden, Utility Board Attorney Jack Wetzler, Assistant General Manager/CFO Alex Tejeda, Director Customer Services Dale Frnigan, Director of Engineering/System Control JGeorge Neugent, Monroe County Mayor Suzanne Hutton, Monroe County Attorney Bob Peryam, KEYS Advisory Committee Area REpresentative Hie: CUS-200 Mr. Andrew Trivette June 5, 2009 Director of Growth Management Marathon Government Center 2798 Overseas Highway Marathon, Fl. 33050 ME= The design of the Cudjoe Regional Wastewater System is well underway. Collection system Key. The Big Pine collection system (from Doctor's Arm to US1) is being designed to OWN "-I'. "N staw 1-6X-U-61Akn,-ff P—VA�L�.wc, be made available. MEE= sy7mm" and economically feasible wastewater system would be facilitated by the provision of commercial electric power in these areas. 1,Iffe—n—affflai determination is maoe e pro, W-Z"yjUP-T::M areas currently without it, then the final selection and design of an appropriate wastewater system will commence with the assistance of the Department of Health. Sincerely, FLORI AUTHORITY Sincerely, AU1 FLOR J es ds, PE Executive rector S AM AWAllift (305) 29s-1000 1001 JWw sheet eneray PO Box 6100 Key ftsk FL 33OW4100 www.KePEnew=m UTILITY BOARD OF THE CITY OF KEY t tow VE D July 9, 2010 FEDEX 8723 1849 2058 Mr. Paul Souza, Field Supervisor United Department of the Interior V . Fish and Wildlife Service South FloridaEcological Services ofrwe 1339 2& Street Vero Beach, Horlda 32960 RE: No Name Key Midge — Electrical Service Dear Mr. Souza: Keys Energy SWAM (KEYS) has reviewed your letter of January 20, 2010, for the extension of electrical service to No Name Key. Over the past five (5) months KEYS and theHomeowner's Association have been obtaining the Information you requested. Please find attached two (2) copies of our response to your questions and supporting data that your agency 1. Project Routing Map of Electrical Facilities 2. GPS Data Points on Pole and Down Guy Facilities 3. Elevation Data for each Pole and Down Guy Location 4. Photo at Ground Level of Each Pole and Down Guy Location 5. Tree Trimming (line clearance) needed for the Overhead Fadlides 6. Construction Room and General Requirements 7. Electrical Equipment Material Details (pole, manhole, trench detail) 8. Confirmation that no Federal Funds will be used for this Project 9. Discussions with FKAA on ®Joint Line Extension" 10. Report on Environmental Impact of the Electrical Facilities on No Name Key Thanks again for your assistance. If you have any questions, please do not hesitate to call. Sincerely, Dale Z�Fin n Director of Engineering/Control Center DZF/ba c: L Tejeda, General Manager & CEO J. Wetzler, Asst. General Manager & CFO D. Price, Director of T&D M. Alfonso, Supervisor of Engineering J. Barroso, Communication/Marketing Coordinator C. Hurley, Monroe County Growth Management Division Director DESK CO" K. Brown, No Name Key Homeowners Association President M. Sa"o, Fish and Wildlife Services File: PLI-133 �,.rr. ' �ttl l y t � ki(�T' y��yy� �� �1� I g - t •o H,^� � - "R r� s F' �p�A 'v Y ati 1 e , f 1 • } n : i n iS i �ih � si l��a� t -�1� � ��5 t t, 3��s Iti�. 1 '•= r, �J� � t��t, si�Y `t s w t F y 'OVA SI Av� S .UsA r t0 R Nii an � k i ys" g, It h?d ''VlS u n +lt� si 411 3�' t d l PNI�` , s ikAv ,w11�j�3 t�A U. A t Jt �SJ� t k ?E 4i �i.'+�° Ail � _ t qp - 6 - 1 t�,yc— �ls �.�. ft^r�,-+"`,3?mSJi�:!'..f`S�+'T`.'�..''� �'�°'Sie... i Y }) s t • r W 7 a it{tp I 2r x 14� � Ir it t � i A t t l IL Ttt.ti }1 { l Qlm ffc �,) i� I { l ;�t • 1`IY li �FP � irr `Yj � . ► 13`'F� P� � „ lip �.q3 Location! le number Latitude Lon Rude< NN-1 G 24.697831 81.340212 NN-1 24.697829 81.340121 NN-2 24.697819 81.339322 NN-3 24.697808 81.338495 NN4 24.697798 81.337666 NN-5 24.697788 81.336836 NN-6 24.607778 81.335008 NN-7 24.697769 81.335179 NN-8 24.697759 81.334355 NN-9 24.697750 81.333546 NN-10 24.697740 81.332731 NN-11 24.697729 81.331920 NN-12 24.697720 81.331116 NN-13 24.697T08 $1.330209 NN-14 24.697695 81.329222 NN-15 24.897687 81.328370 NN-18 24.697677 81.327549 NN-17 24.697667 81.326723 NN-18 24.607657 81.325896 NN-19 24.697648 81.325057 NN-20 24.097638 81.324276 NN-21 24.697629 81.323500 NN-22 24.697619 81.322713 NN-23 24.697610 81.321937 NN-24 24.697599 81.321256 NN-240 24.697600 $1.321165 NN-12-1 G 24.697888 81.331117 NN-12-1 24.697972 81.331118 NN-12-3 24.698742 $1.331134 NN-12-5 24.69M3 81.331154 NN-12-7 24.700267 81.331171 NN-12-9 24.701040 81.331191 NN-12-11 24.701815 81.331207 NN-12-13 24.702551 81.331225 NN-12-13G 24.702634 81.331224 NN-12-13-1G 24.702550 81.331353 NN-12-13-1 24.702549 81.331439 NN-12-13-3 24.702531 81.332333 NN-12-13-5 24.702521 81.332912 NN-12-13-5-G1 24.702522 81.332931 NN-12-13-5-G2 24.702444 81.332 NN4 2-13-5-2 24.703031 81.332921 NN-12-13-5-2G 24.703116 81.332923 NN-13-1G 24.697874 81.330212 NN-13-1 24.697956 81.330212 NN-13-3 24.698756 81.330232 NN-13-6 24.699529 81.330250 NN-13-7 24.700104 81.330261 NN-13-9 24.700681 81.330274 NN-13-11 24.701258 81.3302$3 NN-13-13 24.702030 81.330300 NN-13-16 24.702797 81.330326 NN-13-15G 24.702879 81.330327 Location! ole number Latitude Lanciltude NN-13-17 24.703023 81.330273 NN-14-1 G 24.697864 81.329220 NN-14.1 24.697949 81.329223 NN-14-3 24.698593 81.329238 NN-14-5 24-699351 81.329252 NN-14-7 24.700131 81.329270 NN-14-9 24.700873 81.329285 NN-14-11 24.701865 81.3 NN-14-13 24.7 81.329317 NN-14-13G 24.702297 81.329319 NN-14-16 24.702823 81.329324 NN-24-1G 24.697778 81.321251 NN-24-1 24.6978" 81.321252 NN-24-3 24.69M 81.321260 NN 24-5 24.699041 81.321271 NN-24-5G 24. 126 81.321272 NN-24-7G 24.6M87 81.321300 NN-24-7 24.69=1 81.321275 NN-24-7G 24.699345 81.318655 NN-24-7-2 24.699308 81.3 2 NN-24-7-4 24.699319 81.319919 NN-24-7-6 24.699334 81.319197 NN-24-7-8 24.699348 81.318744 NN-24-3-2 24.608362 81.321031 NN-24-3-2G 24.69W8360 81.321122 NN-24-3-4 24.6M71 81.320618 NN-24-U 24.8M90 81.319715 NN-24-3-8 24.698402 81.319173 NN-24.3-10 24.698412 81.318721 NN-24-3-10G 24.6W13 81.318631 NN 24-1Galt 24.607762 81.321194 NN24-felt 24.697845 81.321195 NN-24-3alt 24.698402 $1.321212 NN-24-5alt 24.SM78 81.321185 NN-245Gaft 24.699152 81.321187 NN-24-7alt 24.699284 81.321194 NN-24-7Galt 24.699290 81.321326 NN-MH 24.697929 81.340481 MH-1 24.698027 181.348343 LocatIon! oole number- Elevation NNAG 2.9 NN-1 2.7 NN-2 2.8 NN-3 2.4 NN4 3.3 NN-5 3.0 NN-6 32 NN-7 3.1 NN-8 3.5 NN-9 3.6 NN-10 3.5 NN-1 1 3.0 NN-12 3.6 NN-13 3.7 NN-14 4.2 NN-15 4.9 NN-16 5.3 NN-17 5.8 NN-18 6.1 NN-19 6.4 NN-20 5.8 NN-21 5.3 NN-22 5.5 NN-23 5.4 NN-24 5.2 NN-24G 5.3 NN-12IG 4.0 NN-12-1 4.3 NN-12-3 4.1 NN-12-5 3.7 NN-12-7 3.6 NN-12-9 3.0 NN-12-11 3.3 NN-12-13 3.6 'NN-12-13G 3.5 NN-12-13-IG 3.9 NN-12-13-1 4.0 NN-12-13-3 4.0 NN-12-13-5 3.4 NN-12-13-5•G1 3.6 NN-12-13-5-G2 M NN-12-13-5.2 3.7 NN-12-13-5-2G 3.8 NN-13-1G 4.6 NN-13-1 4.7 NN-13-3 4.6 NN-13-5 4.2 NN-13-7 4.1 NN-13-9 3.4 NN-13-11 4.3 NN-13-13 4.4 NN-13-15 4.3 NN-13-15G 4.9 INN-13-17 5.0 NN-1 4-1 G 5.3 Location/ Is number Elevatlon NN-14-3 4.6 NN-14-5 4.8 NN-14-7 4.7 NN-14-9 4.8 NN-14-11 5.1 NN-14-13 4.8 NN-14-13G 4.9 NN-14-16 5.4 NN-24-IG 5.6 NN-24-1 5.4 NN-24-3 4.8 NN-24-5 4.5 NN-24-5G 4.4 NN-24-7G 6.7 NN-24-7 8.9 NN-24-7G 3.3 NN-24-7-2 4.0 NN-24-7-4 3.9 NN-24-7-6 3.2 NN-24-7-8 3.0 NN-24-3-2 4.5 NN-24-3-2G 4.8 NN-24-3-4 4.5 NN-24-3-6 3.7 NN-24-" 2.8 NN-24-3-10 2.9 NN-24-3-10G 3.1 NN-24-1 Galt 5.4 NN-24-tall 5.5 NN-24-3alt 4.5 NN-2'4-Saft 4.8 NN-24SGaft 4.3 NN-24-7alt 4.6 NN-24-7Gait 4.9 NN-MH 3.2 W�- 2.5 Elevations are refemnced to NGVD 1929 Datum i k tiIII Sup m 4� � � `q• � tea, a•`F ire.; �a ` r�.w�'��J. y � l tf �t �81: - �� � (^dam . "9 ✓ sJ ( �\� 2 \ : :� \ : �\� � � d < ? &. » ?; � « w.� <\ ^�/ 2a:� / . »dam d2� } «� \�� \\ son, Of lit. -01. Nir,"K ljppp- 7%j, 71, Jk i' � � J/1pg, a ,t a F" 5 'w ffm . < � §« % � /] It .2010 DALE FINIGAN, DIRECTOR OF ENGINEERRING FROM: JACK WETZLER, ASSISTANT GENERAL MANAGER & CFT ti NO NAME It-V Please be advised that KEYS has not used any federal funds to construct any portion of the substation or distribution system that would be used to connect No Name Key. Further, KEYS has no intention - federal funds to construct the No Name Key electrical extension. Federal The only federal funds KEYS has used In the past have been grants received from the _ .ency Management Agency damage tofacilities. File; ENG-150 Keys Energjj Services (KEYS) and Florida Keys Aqueduct Authority (FKAVk) have had regular discussions n the status of pnoviding and considering Utilities to and on No Name KEY (NNK). Bc,rth agencies have agreed that if any design/permitt, Ing/construction opportunities arise during the processes that are in the best interest of all parties, KEYS and FKA4% would C.Onsider them., June 2rd 2010 ENDANGERED SPECIES BIOLOGICAL NO NAME KEY EXTENSION of ELECTRICAL SERVICE KEYS ENERGY SERVICES ID SERVICE# 1 -- I 1 I' I '' , 32731 Tortuga Lane No Name Key, Florida 33043 Prepared by: Terramar Environmental Services, Inc. 1241 Crane Boulevard Sugarloaf Key, Florida 33042 (305) 3934200 FAX (305) 745-1192 e HIN&SA No Name Key - &,wwom of Dectric Sen-ice TABLE of CONTENTS 2.0 PROPOSED ACTION 3.0 EXISTING CONDITIONS....................................................................................... l Big Pine Key Habitat Conservation Plan (CP)........................................................4 4.0 THREATENED and ENDANGERED SPECIES...................................................... 5 Threatened or Endangered Species not Analyzed in the Biological Assessment ....... 5 Threatened or Endangered Species Analyzed in the Biological Assessment .............6 DESCRIPTION OF SPECIES....................................................................................6 Habitat.......................................................................................................................35 5.0 ANALYSIS OF EFFECTS ........................................................................................ 38 Direct Effects - Upland and Wetland Habitats.........................................................38 Direct Effects - Threatened and Endangered Species Habitat Impacts ....................38 IndirectEffects..........................................................................................................41 Beneficial Indirect Effects........................................................................................43 CumulativeEffects ...................................................................................................44 Interdependent and Interrelated Effects..................................................................45 Avoidance, Minimization and Conservation Measures ............................................45 7.0 DETERMINATION OF EFFECT............................................................................. 46 Attachments Attachment 1. Project Plans (included in submittal packet) Attachment 2. Letter from Jay Slack, U.S. Fish and Wildlife Service, 1998 % Nome Key - Errension of Electric Service EXECUTIVE SUMMARY Page W Based on a request from homeowners on No Name Key, Keys Energy Services (KEYS) is proposing to extend commercial electrical power from the adjacent Big Pine Key to existing residences on No Name Key. The proposed electrical extension will serve 43 existing residences and employ a total of 61 concrete utility poles. No ancillary facilities (e.g. substations) will be developed on No Name Key. The project will occur in existing developed right-of-way; no native habitats including pine rocklands, hardwood hammocks, or wetlands will be impacted by the proposed project. Similarly, the proposed project will not adversely impact the National Key Deer Refuge. Limited lateral trimming of tree branches will be required, but right of way maintenance on No Name Key has been ongoing for decades. Best management practices will be employed during construction to prevent adverse secondary impacts to native habitats and wildlife. No Name Key is an 1,175 acre island located adjacent to Big Pine Key. The island is sparsely developed, with the majority of development located in two canal subdivisions. Property ownership on No Name Key is a mix of public and private lands. Public lands include 338 parcels totaling 874 acres and include lands owned by Monroe County, the State of Florida and the U.S. Department of interior. Public lands comprise 74% of the total land mass of No Name Key and are managed by the NKDR as a wildlife refuge. Private lands include 161 parcels totaling 301 acres and include 43 properties developed as residences. No Name Key has long been the target of conservation efforts by local, state and federal agencies, and the majority of sensitive wildlife habitat on the island is protected either through acquisition as refuge lands or through stringent growth management controls including the Monroe County Comprehensive Plan and the USFWS Habitat Conservation Plan. Significant fiiture development on No Name Key is highly unlikely, and any proposed future development would fall under the auspices of the Monroe County Comprehensive Plan and the USFWS Habitat Conservation Plan. Due to the presence of a number of Federally -listed species on or near No Name Key, the proposed project has the potential to impact Key deer, Lower Keys marsh rabbit, silver rice rat, Eastern indigo snake, Stock Island tree snail, Garber's spurge and the Key tree cactus. However, because the proposed project will not directly impact these species or their habitats, the proposed project will have no measurable adverse impact on these species. Because No Name Key is protected from rampant over -development through the actions of land acquisition and environmental regulations, adverse indirect and cumulative effects are not anticipated to occur. No Nome Key - Favension of Electric Service 1.0 INTRODUCTION Page 1 This document is a Biological Assessment of the potential effects of extending electrical service to No Name Key, Monroe County, Florida to Federally listed plant and animal species. This Biological Assessment is being submitted by the No Name Keys Property Owners Association (NNKPOA) on behalf of Keys Energy Services (KEYS). KEYS is the electric utility for the Lower Keys and is responsible for the design and installation of the electrical extension project. This document is based on information available on the project as well as recent on -site ecological investigations conducted by Terramar Environmental Services, inc. While this document follows the general format for biological assessments as required for major Federal actions under the National Environmental Policy Act of 1969 (NEPA), it is not a formal Biological Assessment since there is no Federal involvement in the planning and implementation of the project. The Biological Assessment format is followed for clarity and consistency in assessing the potential impacts of the proposed project on Federally listed plant and animal species. Initial coordination of the proposed project has occurred between KEYS and the U.S. Fish and Wildlife Service (FWS) on and consisted of correspondence from KEYS to FWS dated October 19, 2009 and a response from FWS dated January 20, 2010. The proposed project consists of extending existing electrical service from Big Pine Key to No Name Key, where no electrical service currently exists (Figure 1). The project will employ a total of 61 utility poles located within existing right of way (ROW) owned by Monroe County and possibly the National Key Deer Refuge (NKDR). Power poles will be placed in existing scarified ROW within six feet of the edge of existing roadway pavement. No clearing of vegetation will occur as a result of the proposed project; however some trimming of overhead tree limbs will occur during initial system installation. A complete description of the proposed project including pole locations, pole installation details, and vegetative trimming has been prepared by KEYS (Attachment I -KEYS Project Plans). 3.0 EXISTING CONDITIONS No Name Key is a 1,175 acre island located adjacent to Big Pine Key in the Lower Florida Keys, with much of the island included in the National Key Deer refuge (Figure 3). The native habitat types on No Name Key are typical of larger islands in the Lower Keys and support a diversity of upland and wetland habitat types (Table 1, Figure 2). The flora is primarily West Indian in origin. Typically, island areas near sea level (maritime zones) are comprised of red, black, and white mangroves, as well as buttonwood forests. As elevation increases, these maritime zones No Name Key - Exmnsfon of Eleetrfc Service page 2 transition into hardwood hammocks and eventually into pineland forests intolerant of salt water. Freshwater marshes are lowlands or basins surrounded either by higher upland forests or between upland areas and transition zones. Table 1. Habitat types on No Name Key based on the most current habitat map provided by Monroe County. Habitat Type Hammock Acres 399 Pineland 123 Freshwater Wetland 13 Buttonwood 64 Salt Marsh 111 Scrub Mangrove 98 Mangrove 312 Exotic 8 Impervious Surface Total 6 Undeveloped Land Total 18 Developed Land 23 Total Area 1175 A brief description of each of these vegetation types and representative plant species follow: Mangrove Swamps: Mangrove forests are dense, low forests occurring along flat, maritime zones. Average elevation is 0-1 m above mean sea level. Dominant plants are red, black, and white mangroves and to a lesser degree buttonwood. In general, vascular plant diversity of mangroves increases with increasing elevation. Salt Marsh Buttonwood Wetlands: Tiraansitional areas between mangrove forests and upland forests consist of buttonwood prairie, salt marsh, and open scrub. Average elevation is 0.5-1 m above mean sea level. In buttonwood forests, most plant species are resistant to salt water although these areas are not tidally -influenced. Plant species near the mangrove zones include red mangrove, black mangrove, white mangrove, saltwort, and glasswort. With increasing elevation, these plants are replaced with buttonwood, joewood, wild dilly, mayten, blacktorch, saffron plum, dropseed, key grass, sea oxeye, cordgrass, Christmas berry, and sea purslane. No Name Key - Evenslon of Electric Service Page q Freshwater Marsh: Freshwater marshes are lowland areas or basins either surrounded by higher upland forests or between upland areas and transition zones (Fig. 1.4). Average elevation for freshwater marshes is 1-2 in above mean sea level, and they can vary in size from 1 ha to greater than 100 ha (Folk 1991). Plant species are similar to hammocks or pinelands, with the exception that standing freshwater levels are maintained for extended periods during the year. As a result, many wetland species such as sawgrass, buttonwood, red mangrove, saw sedge, white -top sedge, leather fern, false foxglove, and broom sedge are found in these areas (Dickson 1955, Silvy 1975, Florida Natural Areas Inventory 1990, Folk 1991). Hardwood Hammock: Hammocks are upland hardwood forests characterized by broad -leaf evergreen trees. Plant diversity is high, and these areas support many plants of West Indian origin including gumbo limbo, Jamaican dogwood, poisonwood, pigeon plum, blolly, stoppers, sea grape, buttonwood, wild dilly, and saffron plum. Average elevation is 2-3 m above mean sea level with areas rarely effected by tides except during extreme weather events such a hurricanes. Pinelands: Pinelands consist of an open canopy of slash pines with a patchy understory/groundcover of tropical and temperate shrubs, palms, grasses, and herbs (Florida Natural Areas Inventory 1990, Folk 1991). Historically, natural fires maintained these areas. Average elevation is 2-3 in above ocean sea level with plant species being very intolerant of saltwater intrusion (Fig. 1.6). Plants associated with pinelands include blackhead, saw palmetto, Keys thatch palm, silver palm, Indian grass, Christmas berry, pineland croton, yellow root, love vine, and locustbetry. Hammocks, pinelands, and freshwater marshes all are important in providing freshwater resources in the form of natural waterholes to Key deer (Dickson 1955, Silvy 1975, Florida Natural Areas Inventory 1990, Folk 1991). Developed: Developed areas on No Name Key include areas developed for both residential and commercial purposes. These lands are generally scarified and support minimal vegetation, often invasive exotic plants such as Australian pine and Brazilian pepper. Many of the residential area have been fenced. Two active commercial rock mines are in operation on the island. Property ownership on No Name Key is a mix of public and private lands. Public lands include 338 parcels totaling 874 acres and include lands owned by Monroe County, the State of Florida and the U.S. Department of Interior. Public lands comprise 74% of the total land mass of No Name Key and are managed by the NKDR as a wildlife refuge. Private lands include 161 parcels totaling 301 acres and include 43 properties developed as residences. No Name Key - Extension ofEleartc Service Big Pine Key Habitat Conservation Plan (HCP) Page 4 Big Pine Key is the largest of the Lower Keys and forms the center of the Key doer's range, supporting about 68 percent of the population. Like Big Pine Key, No Name Key contains relatively large areas of the preferred upland habitat with freshwater resources. Together, those keys support about three -fourths of the Key deer population. Vehicular mortality is the greatest known source of deer mortality within the action area, especially on Big Pine and No Name Keys. To address vehicle mortality and habitat loss associated with development on Big Pine and No Name Keys, the Service issued a section 10(a)(1)(B) permit (Incidental Take Permit [ITP]) to Monroe County. FDOT, and the Florida Department of Community Affairs (DCA). Issuance of the lTP will authorize take of Key deer, Lower Keys marsh rabbit, and eastern indigo snake on Big Pine and No Name Keys, Monroe County, Florida. The take of these species will be incidental to land clearing for development and recreational improvements. The applicants have developed a habitat Conservation Plan (HCP) that sets guidelines for development activities on Big Pine and No Name Keys to occur progressively over the permit period (20 years) and provides a conservation and mitigation strategy to minimize and mitigate for impacts to protected species and their habitat. The HCP allows for the loss of a maximum of 168 acres of potential Key deer habitat and compensation will be provided by the acquisition at a minimum of three mitigation units for every one -development unit of suitable habitat on Big Pine and No Name Keys. The Service has determined that this level of incidental take would not jeopardize the survival and recovery of the species. The implications of the HCP and ITP on the conservation status of No Name Keys are discussed in detail below under Analysis of Effect — Indirect Effects. In short, the HCP provides adequate protection for threatened and endangered species and their habitats on No Name Key, and will prevent rampant development from taking place on the island. No Name Key is within the restrictive Tier I category as defined in the HCP. Development in Tier I areas is limited to ten permits over the 20 year period 2006-2026. To date, three Tier 1 allocations have been authorized, leaving only seven (7) Tier I allocations for use on No Name and Big Pine Keys through 2026. Because No Name Key has no specific set -aside permit allocations, it is entirely possible that all seven Tier I allocations could go to Big Pine Key, and no additional residential development will occur on No Name Key. Conversely, it is theoretically possible that all seven remaining Tier I allocations could go to No Name Key, however this scenario is extremely unlikely considering the number of Big Pine Key Tier I permit applications currently in the permitting system. Regardless, all development permitted under the HCP would require compensatory mitigation and will by definition under the HCP offset any adverse impacts. No Name Key - Extension of Electric Service Several threatened or endangered species occur in the vicinity of No Name Key and the Lower Florida Keys, including nearby coastal waters, but have never been documented to occur in the vicinity of the proposed project and therefore the probability of these species to be affected either directly or indirectly by the proposed project is negligible. These include species that do not occur on No Name Key or occur in coastal waters that will not be impacted either directly or indirectly by the proposed project (Table 1). Table 1. Species listed as threatened or endangered by the USFWS or National Marine Fisheries Service that occur in the Lower Florida Keys and coastal waters, but will not be evaluated in this biological assessment. Common name Scientific name Status Schaus' swallowtail butterfly fferaclides aristodemus ponceanus Endangered West Indian manatee Trichechus manatus latirosais Endangered Smal [-tooth sawfish Fristis pectinata Endangered Loggerhead sea turtle Caretta caretta caretta Threatened Green sea turtle (Florida population) Chelonia mydas mydas Endangered Leatherback sea turtle Dermochelys coriacea Endangered Hawksbill sea turtle Eretmochelvs imbrieata imbricata Endangered Kemp's ridley we turtle Lepldoehetw kempt Endangered American crocodile (and ethical habhat► Crocodylus acunv Threatened Piping Plover (and critical habitat) Charadrius melodus Tbremened Because the likelihood of any adverse impacts to these species resulting from the proposed project is negligible and can be discounted, these species will not be considered further in this Biological Assessment. No Name Key - Extension of Electric Service 0 The information on the status of threatened and endangered species presented below was summarized from a variety of sources including published thesis and dissertations, peer -reviewed scientific literature, and Recovery Plans and Biological Opinions prepared by the U.S. Fish and Wildlife Service. A complete list of references used in this section is included in the Literature Cites section of this Biological Assessment. A review of the most current information available of the distribution and status of threatened and endangered species potentially impacted by the proposed project indicated the following species may potentially occur within or in the vicinity of the proposed project, have the potential to be impacted by the proposed project, and therefore warrant detailed analysis through this Biological Assessment (Table 2). Table 2. Species listed as threatened or endangered by the USFWS that could potentially occur on No Nance Key and are the subject of analysis in this biological assessment. Common name Scientific name FwS Status Key deer Qdocaileus virginianus clailum Endangered Lower Keys marsh rabbit $dvilagus palustris hefneri Endangered Silver rice rat Orysomys arsenratus Endangered Eastern indigo snake Drymarchon corgis couperl Threalened Stock Island tree snail Orthalicra reses rases Endangered Garber's spurge Chamaesvicegarberi Endangered Key tree cactus Pilosocereus robinil Endangered DESCRIPTION OF SPECIES ear The deer lives in a complex of native upland and wetland habitats interspersed in a matrix (mixture) of light to dense urban development. The number of Key deer has increased substantially over the past 40 years, due principally to a ban on hunting and protection and management of habitat within the National Key Deer Refuge (NKDR) and surrounding lands. Natural stochastic (random) events and the influences of human development, as manifested No Name Key -Extension of Electric Service Page through habitat loss, fragmentation, and degradation, continue to negatively affect Key deer survival with road mortality representing the largest known source of documented Key deer mortality (Lopez, 2001). Life history Distribution: The Key deer's range probably historically extended from Key Vaca to Key West (Klimstra et al., 1978a). Florida Key deer (Odocofieur virginiantrs clavium) occupy 20-25 islands in the Lower Florida Keys, with about 65 percent (453-517 deer in 2000) of the overall population found on Big Pine Key (Lopez et a1., 2004a). The NKDR and the Great White Heron National Wildlife Refuge encompass much of this range. They are managed for the Key deer and other wildlife. The principal factor influencing the distribution and movement of Key doer in the Keys is the location and availability of freshwater. Key deer swim easily between keys and use all islands during the wet season, but suitable water is available on only 13 of the 26 islands during the dry season (Folk, 1991). Habiwir Key deer use all habitat types including pine rocklands, hardwood hammocks, buttonwood salt marshes, mangrove wetlands, freshwater wetlands, and disturbed/developed areas (Lopez, 2001). Uplands are used more than wetlands (Lopez et aL, 2004b). Key deer use these habitats for foraging, cover, shelter, fawning, and bedding. Pine rocklands hold freshwater year round and are especially important to Key deer survival. About 34 percent of the range is pine rocklands and hardwood hammocks (Lopez et al., 2004b). Over 85 percent of the fawning occurs in pine rocklands and hardwood hammocks (Hardin, 1974). Five of 26 islands occupied by Key deer have significant pine rocklands. Key deer also use residential and commercial areas extensively where they feet) on ornamental plants and grasses and can seek refuge from biting insects. No critical habitat has been designated for the Key deer. Behavior Key deer have well-defined patterns of activity and habitat use, and established trails from years of daily use are visible in many areas within Key deer habitat (Khmstra et al., 1974). Roadkill hotspots are evident from the Service's long-term mortality database, further illustrating the habitual movement patterns of Key deer. The social structure of the Key deer varies throughout the year with the reproductive cycle. Bucks associate with females only during the breeding season and will tolerate other males when feeding and bedding only during the nonbreeding season. Does may farm loose matriarchal groups consisting of an adult female with several generations of her female offspring, but these associations are not stable (Hardin et al., 1976). Home ranges of Key deer are variable (Lopez, 2001). Average monthly home range size for adult males is about 296 acres (118 ha) and about 128 acres (51 ha) for adult females, while yearly ranges are larger with an average of 790 acres (316 ha) for males and 432 acres (173 ha) for females. Males tend to disperse from their natal (birth) No Name Key . Extension of Electric Service Page 8 range as fawns or yearlings. Adult males range over larger areas during the breeding season and may shift to an entirely new area (Silvy, 1975; Drummond, 1989; Lopez, 2001). Territorial behavior is limited to a buck's defense of a receptive doe from other bucks, rather than the defense of a specific territory (Klimstra et al., 1974). Aggressive male behaviors (combat) between rutting males are common in Key deer, especially during the fall breeding season or rut. A recent study indicates that Key deer home ranges have become smaller and tolerance for other deer has increased in recent years as the result of development and feeding (Lopez et al., 2005). Urbanization: Key deer have become more urbanized over the last 45 years, a trend reported in Folk and Klimstra (1991c). Key deer are regularly fed at several private locations on BPK, which exacerbates urbanization (Folk and Klimstra, 1991c; Lopez et al., 2005). Past research has shown that the Key deer on BPK are habituated to human noises, lights, and vehicular traffic (Folk and Klimstra, 1991c). "Urbanized" is the term most often used to describe this behavior. Folk and Klimstra (1991c) observed that Key deer "often bedded in open sites within seven feet (two meters) of a road and were not disturbed by cars, pedestrians, and cyclists. Loud noises from within 31 feet (40 meters), such as circular saws, lawn leaf -blowers, and wood chippers brought little response." Several studies have documented that deer in general quickly become habituated to noise and lights. Bashore and Ellis (1982) found that deer quickly became accustomed to noise and lights on Pennsylvania airfields. Krausman et al. (1993) investigated the effects of low -altitude jet aircraft noise on the behavior and physiology on captive mule deer and mountain sheep, finding that all study animals became habituated to noise levels ranging from 92 to 112 decibels. According to Dr. Phil Frank, former NKDR manager, Key deer research biologist, and co-author of several papers on Key deer, less than ten percent of Key deer on BPK are believed to exhibit "wild", or natural, characteristics (P. Frank, personal communication, 2005). The Key deer is capable of exploiting a variety of foods over a range of habitat conditions. Diet varies seasonally with resource availability and changes in nutritional requirements of deer (Carlson et al., 1993; Klimstra and Dooley, 1990). Key deer forage on over 160 plant species including red mangrove (Rhizophora mangle), blackbead (Pithecellobium keyense), acacia (Acacia pinetorum), indian mulberry (Morinda royoc), and pencil flower (St ylosanthes hamata). Red and black mangroves (Avicennia germinans) constitute 24 percent by volume of the diet of the Key deer (Klimstm and Dooley, 1990). Key deer require a freshwater source for survival (Folk et al., 1991). Population Dynamics The Key deer population was estimated at 360 to 375 individuals in 1972, the last official survey (Silvy, 1975), and has increased, but estimates of density and structure are lacking (Lopez, 2001). Based on habitat condition and the presence of density -dependent disease in the population, the Key deer may be at or near ecological carrying capacity (Lopez, 2001, Lopez et al., 2004a; Nettles et al., 2002). No Name Key - F.rtexston of &ectrtc Service Page 9 Key deer are wide ranging and use virtually all available habitats, including developed areas (Lopez, 2001). The Key deer population on BPK and No Name Key has increased by about 240 percent since 1972. Collectively, 450 to 515 deer occupy Big Pine and No Name Keys; the highest recorded estimate for these two islands (Lopez, 2001). The increase in the population is believed to be due to the protection of Key deer from hunting through law enforcement, habitat protection, and the positive response of the deer population to low levels of urban development (Lopez et al., 2004a). Key deer produce fewer young per female than any other white-tailed deer population in North America. Fecundity (number of fetuses per female) and productivity (percent of females reproducing) are low, mean age of first breeding is high, and twinning is infrequent, resulting in relatively low reproductive potential. The sex ratio of Key deer is initially weighted towards males; with a 1.75 tol fetal ratio and 2 tol fawn ratio. However, significantly higher male mortality at maturity serves to balance adult sex ratios more evenly. Annual deer mortality is a function of deer density and population size (Lopez et al., 2003a). Status and distribution Reasons for listing; Prior to human arrival in the Keys in the early 18th century, the Key deer had few natural competitors or predators. Key deer have evolved to withstand natural phenomena such as drought, hurricanes, fire and disease, but were not adapted to human hunting pressures. however, once a human population was established on the Lower Keys, hunting of Key deer for food and loss of habitats resulting from development ensued and diminished their population. By the 1940s, it was estimated that as few as 25 Key deer remained. In response to the threat of extinction from over hunting and habitat loss from development, the NKDR was established in the 1950s and the Key deer were listed as federally endangered on March 11, 1967 (Service, 1967). Rangewide trends The protection afforded the Key deer through prohibitions on hunting, habitat management, and habitat protection through acquisition has resulted in an apparent significant increase in (240 percent) in the BPK Key deer population. Despite the apparent increase in population levels of Key deer, there has been a contraction of the range of Key deer from 1970 to 1999 (Lopez, 2001). Key deer have become increasingly abundant on BPK and adjacent islands, but have decreased to near extirpation on more distant islands such as Cudjoe and Sugarloaf Keys (Lopez, 2001). Although Key deer were never abundant on Cudjoe and Sugarloaf Keys, they now exist at such low numbers that local extirpation is likely in the near future (Lopez, 2001). This contraction in the range has decreased the overall viability of the Key deer population by increasing the probability that a stochastic event, such as a hurricane or disease epidemic, may have catastrophic impacts to the core population on and around Big Pine Key. No Name Key - Ertenmon of Ekctric Service Threats Loss of habitat resulting from development is the most significant threat to Key deer (Klimstra et al., 1974). The human population on BPK has increased an estimated 77 percent from 1980 to 1990. An estimated 116 acres per year of Key deer habitat was cleared on Big Pine Key in the early 1970s. Development has been reduced in recent years due to growth management controls, but habitat loss remains a major concern. Fencing of private property associated with residential and commercial development has reduced habitat availability for the Key deer. Native habitat that is fenced is no longer available for use by the Key deer and may block access to other areas. This loss of habitat has reduced the availability of food, water, and shelter as well as fawning areas needed by deer to survive and reproduce. Large networks of fencing have fragmented Key deer habitat and restricted movement, which has further reduced the availability and value of these areas to Key deer. Although fencing is regulated under the Monroe County Comprehensive Land Use Plan, many areas important to Key deer continue to be impacted by fences. An additional concern is the injury or loss of deer as a result of attempting to j ump these fences. Fire suppression promotes ecological succession in pine rockland communities, resulting in increased hardwood cover, dense brush, decreased herbaceous cover, reduced light penetration, and a general deterioration of habitat quality for Key deer (Klimstra, 1986; Carlson et al., 1993). Exotic plant species such as Australian pine (Casuarina equisetffolia), Brazilian pepper (Schfnus terebinthffolius), and latherleaf (Colubr(na asiatfca) are invading Key deer habitat, out competing native vegetation, and reducing habitat quality. Exotic vegetation and underbrush restrict Key deer movements and concentrate their movements along established trails. Since useable habitat is limited, Key deer must move more to access preferred areas, which involves crossing streets and roads. This results in more Key deer crossing roads at fewer access routes or walking along roads, increasing their vulnerability to traffic. Invasive exotic vegetation out -competes native vegetation, resulting in areas of formerly high quality habitat becoming unusable. As the population density nears carrying capacity, density dependent disease becomes an increasing problem (Lopez 2001). Deer mortalities are tested for infectious diseases. Several diseases have been detected, but only haemonchosis is believed to have affected population dynamics in recent years (Nettles et al., 2002). Residential and commercial development over the past 20 years has increased the number of vehicles and vehicular traffic in the Keys. This additional traffic has increased the likelihood of Key deer/vehicle collisions. Vehicular mortality is the greatest known source of Key deer deaths, and can impact the population by removing large numbers of animals. Telemetry data suggests that about 50 percent of deer mortality is attributed to roadkills and most of that occurs on US 1 (Lopez, 2001). Although lower speed limits have been imposed in an attempt to reduce traffic mortality, continuing deaths in some areas may also be caused by speeding motorists (R. Lopez, 2001, P. Frank, personal communication, 2005). No Name Key - Extension of Electric Service Page 11 Since the 1960s. between 60 and 81 (1996-2000) deer -vehicle collisions (DVCs) have occurred (Si Ivy, 1975, Lopez et al., 20036). in 2000, 69 DVCs were recorded on BPK (Service, unpublished data). Additionally, over half (between 35 and 50 DVCs) of the DVCs that occurred during the period 1996 to 2000 occurred along a 3.5 mile (5.6 km) segment of US 1, which bisects the southern end of BPK. Due to the high occurrences of Key deer -vehicle collisions along this road segment, Service and Florida Department of Transportation (FDOT) biologists have attempted to address DVCs on US 1. FDOT completed two projects on Big Pine Key, one of which adversely affected Key deer. One project was completed to improve traffic congestion on US 1, which traverses BPK and is the only route into BPK or to continue south to the Lower Keys. US 1 was a two-lane highway on BPK traveling in an east -west direction and had limited center turn and storage lanes. The intersection of Key Deer Boulevard and US 1 was enhanced by the addition of an eastbound lane on the south side of the US 1. The total paved area increased by 35 percent in that segment of the roadway. A biological opinion issued by the Service (2001a) determined that the project would result in incidental take of four individual Key deer annually for the duration of the project. The biological opinion stated that the level of incidental take was above the baseline average of nine roadkills per year that already existed on the project segment of US 1. The Service determined that this level of take was not likely to result in jeopardy to the Key deer. FDOT completed a second project in January 2003, which was designed to reduce Key deer vehicular mortality along US 1 on Big Pine Key from mile marker 29.5 to mile marker 33 (Service, 2001b). The project was accomplished through the installation, management, and monitoring of two wildlife underpasses between mile markers 31 and 33, The undetpasses included fencing to direct Key deer toward the underpasses, and deer guards at the intersections of US 1 and access roads along this segment to keep Key deer from entering the highway corridor. Non-structural improvements as well were installed in the US 1 corridor in the unincorporated area and the business district to minimize road mortalities in these areas. These non-structural improvements included: additional signage, radio advisories, speed control, lighting improvements, and pavement markings. Take was anticipated to remain at base levels prior to the installation of the first wildlife undercrossing. However, the level of take associated with the proposed project is estimated to diminish over time. The wildlife crossings were predicted to reduce Key doer mortality on the average by 25.7 percent of total annual road mortalities (27 Key deer) within the project area, or 44.4 percent of road mortalities (47 Key deer) recorded annually on US 1. The maximum reduction in road mortalities estimated by the Service is 40.4 percent of all road mortalities (43 Key deer) recorded annually within the project area, or 66.7 percent of those road mortalities (78 Key deer) recorded for US 1 annually. This reduction would be expected to extend for the life of the project. A recent study (Braden, 2005) of the effects of the project reported that two vehicular mortalities have been recorded since installation. The study determined DVCs had been reduced 83 to 93 percent inside the fenced area. However, overall DVCs on US 1 did not change. No Name Key - Extension ot'Electrie service Page 12 Key deer move between and over islands more often during the dry season and breeding season to find freshwater and females. During cycles when deer numbers are high, vehicular mortalities may be a less significant negative impact on the Big Pine Key deer population than during low population periods. However, as habitat continues to be degraded and Key deer carrying capacity is reached vehicular mortality may become more important. Catastrophes, such as hurricanes, might reduce Key deer numbers to the extent that road mortalities could adversely affect the population (Lopez, 2001). Btg Plae Key Habitat Conservation Plan (HCP) Big Pine Key is the largest of the Lower Keys and forms the center of the Key deer's range, supporting about 68 percent of the population. Like Big Pine Key, No Name Key contains relatively large areas of the preferred upland habitat with freshwater resources. Together, those keys support about three -fourths of the Key deer population. Vehicular mortality is the greatest known source of deer mortality within the action area, especially on Big Pine and No Name Keys. To address vehicle mortality and habitat loss associated with development on Big Pine and No Name Keys, the Service has issued a section 10(a)(I)(B) permit (Incidental Take Permit [ITP]) to Monroe County, FDOT, and the Florida Department of Community Affairs (DCA). Issuance of the ITP will authorize take of Key deer, Lower Keys marsh rabbit, and eastern indigo snake on Big Pine and No Name Keys, Monroe County, Florida. The take of these species will be incidental to land clearing for development and recreational improvements. The applicants have developed a habitat Conservation Plan (HCP) that sets guidelines for development activities on Big Pine and No Name Keys to occur progressively over the permit period (20 years) and provides a conservation and mitigation strategy to minimize and mitigate for impacts to protected species and their habitat. The HCP allows for the loss of a maximum of 168 acres of potential Key deer habitat and compensation will be provided by the acquisition at a minimum of three mitigation units for every one -development unit of suitable habitat on Big Pine and No Name Keys. The Service has determined that this level of incidental take would not jeopardize the survival and recovery of the species. Lower Keys Marsh Rabbit The Lower Keys marsh rabbit, one of three subspecies of marsh rabbit (Sylvilagus pal(stris), is endemic to the Lower Florida Keys. The Lower Keys marsh rabbit was listed as an endangered species on June 21, 1990. Lower Keys marsh rabbits have short, brown fur and a grayish -white belly. Their feet are small and their tails are dark brown and inconspicuous. Male and female Lower Keys marsh rabbits do not appear to differ measurably in size or color. This marsh rabbit differs from the peninsular Florida marsh rabbits (S. p. pahidicola) in several cranial No Name Key - Extension of Electric Service Page 13 characteristics. The Lower Keys marsh rabbit is the smallest of the marsh rabbit subspecies. There is no critical habitat designated for the Lower Keys marsh rabbit. Distribution The Lower Keys marsh rabbit's original range extended from Big Pine Key to Key West, encompassing a linear distance of about 30 miles (Figure 3a-3b). Historically, Lower Keys marsh rabbits probably occurred on most of the Lower Keys that supported suitable habitat, but did not occur east of the Seven -mile Bridge where it is replaced by S. p. pahtdicola. The Lower Keys marsh rabbit is known from many of the larger Lower Keys including Sugarloaf, Saddlebunch, Boca Chica, and Big Pine Keys and some smaller islands near these keys. Historically, the species has existed on Middle Torch Key, Big Torch Key, Cudjoe Key, and may have existed on Ramrod Key, and Key West, but has been extirpated from these areas. Presently, there is a large gap in the distribution of Lower Keys marsh rabbits from Cudjoe Key to the Torch Keys. The following Keys were known to be occupied by Lower Keys marsh rabbit subpopulations etween 1988 to 1995; Annette Key, Big Munson Key, Big Pine Key, Boca Chica Key, East Rockland Key, Geiger Key, Mayo Key, No Name Key, Porpoise Key, Saddlebunch Key, Saddlehill Key, and Sugarloaf Key. During subsequent investigations, conducted from 2001 to 2003, Lower Keys marsh rabbit subpopulations were not found on Big Munson Key, Porpoise Key, and Saddlehill Key. Reintroduction efforts during 2002 to 2004 resulted in the establishment of rabbits on little Pine Key and Water Key. Additional Keys with potential rabbit habitat include Big Torch Key, Cook Key, Cudjoe Key, East Water Key. Hopkins Key, Howe Key, Johnson Keys, Key West, Little Torch Key, Marvin Key, Middle Torch Key, Mud Key, Ramrod Key, Snipe Point, and Summerland Key. On the extreme ends of the range, eastern (Big Pine Key area) and western (Boca Chica Key area) populations exhibit strong genetic differentiation, and limited genetic exchange. The Lower Keys marsh rabbit occurs in small, disjunct populations whose survival depends on the emigration and dispersal of individuals. In order to persist, the emigration rates of the Lower Keys marsh rabbit have to be equal or greater than the death rates. This subspecies may be less fecund than others, thus naturally making it more susceptible to demographic and stochastic events. Since breeding occurs year round, urbanization has affected the Lower Keys marsh rabbit reproductive potential. In addition to natural threats, residential and commercial construction in the Keys have caused direct mortality to the marsh rabbit and disrupted their dispersal. In 2002, a pilot study that reintroduced 13 Lower Keys marsh rabbits to little Pine Key, an isolated island with a relatively large area 32 acres of suitable habitat, was conducted to assess the effectiveness of reintroduction in the recovery of the Lower Keys marsh rabbit. High survival (81 percent) during the first 5 months and evidence of reproduction suggested reintroduction was a feasible management tool. To evaluate the tranlocation techniques used, seven Lower Keys marsh rabbits were introduced to Water Key, an island with about 25 acres of suitable No Name Key - Extension ofElecvric Service p 1* habitat. Survivorship on Water Key during the first 5 months (100 percent) and evidence of reproduction validated these translocation techniques as a viable tool for recovery biologists. Long-term success of this reintroduction program will depend on availability of translocation candidates and possibly an in -sins captive breeding program. Habitat Lower Keys marsh rabbits inhabit tidal, brackish, upland, and freshwater environments. The majority of suitable habitat area lies in a transitional zone between marine environments and uplands. Cover types that provide habitat include salt marsh, coastal prairie, coastal beach berms, buttonwood (Conocarpus erectrrs) woodlands, and salt marsh -buttonwood transition areas. They also use freshwater wetlands. Lower Keys match rabbits often include areas of mangrove (red mangrove, black mangrove, and white mangrove (Laguncularia racemosa) woodlands within their home ranges, and regularly pass through mangrove when traveling between the other habitats. Similarly, data from recent studies suggests that the species may range into the edges of pinelands and other upland habitat, although the frequency and degree of use is currently unknown. During long-range dispersal events, such as when a juvenile leaves its natal home range, it is likely that rabbits pass through all natural terrestrial and wetland environments of the Lower Keys. An estimated 1,291 acres of occupied habitat, and 687 acres of potential (unoccupied) habitat occur throughout the range. The median size of all of the 228 occupied and potential habitat patches as delineated was 43 acres. These habitat patches occur in a fragmented composite of native and disturbed habitat, with few contiguous areas of native habitat greater than 12 acres. Known localities for the rabbit are on privately owned land, State-owned land, and Federal land within the NKDR, Great White Heron National Wildlife Refuge, and Naval Air Station Key West. Suitable habitat for this species is highly fragmented across all of the Lower Keys. Typical Lower Keys marsh rabbit habitat includes wet area with dense cover. Herbaceous cover is a dominant feature within Lower Keys marsh rabbit home ranges. This herbaceous cover is a mixture of grasses, sedges, and forbs. Such ground cover provides shelter as well as critical foods and nesting sites. The Lower Keys marsh rabbit builds mazes of runs, dens and nests in herbaceous cover. Many of the grassy marsh and prairie rabbit habitats are in transitional plant communities that are similar in form and species composition to communities interspersed among mangrove forests of mainland Florida. These wetland communities lie in the middle of the salinity gradient in the Lower Keys. However, many areas occupied by the Lower Keys marsh rabbit appear to be rarely inundated by tides. In 1996, the total area of all suitable occupied habitat was about 625 acres. In 2003, there were about 3,140 acres of occupied and potential habitat, of which 2,467 acres (78.6 percent) are in public ownership. No Name Key - Extension of Electric Service Behavior Adult Lower Keys marsh rabbits of the same sex tend to maintain mutually exclusive home ranges. The home ranges of these rabbits average about 0.8 acre. Adult rabbits have permanent home ranges, while male subadults tend to disperse. Adults of both sexes have similar home range sizes, although the size varies widely among individuals. This individual variability may be due to differences in habitat quality, population density, or the status of an individual in a social hierarchy. juvenile Lower Keys marsh rabbits appear to use a home range near their nest site. Lower Keys marsh rabbits usually travel through a variety of habitats between their natal and permanent home ranges including areas with dense ground cover, mangroves, upland hardwood hammocks, and vegetation between road shoulders and water. Marsh rabbits are good swimmers and will swim when pursued. Dispersing rabbits are susceptible to high mortalities, particularly when there is a lack of habitat between populations, presence of free - ranging cats, and roads to cross. This species appears to be chiefly nocturnal, although they can be active on cloudy days and when they are protected by dense cover. Reproduction: Marsh rabbits sexually mature at about 9 months of age. During this time, the majority of the males disperse. Sexually maturing females are not as likely as males to disperse. Like other marsh rabbit subspecies, Lower Keys marsh rabbits are polygamous, and generally breed throughout the year. Although Lower Keys marsh rabbits do not display an apparent seasonal breeding pattern, the highest proportion of females with litters occurs in March and September; the lowest proportion occurs in April and December. The Lower Keys marsh rabbit is less fecund than other marsh rabbits. Marsh rabbits in mainland south Florida (S. p. pahtdicola) can produce 14 to 18 young per female per litter, while only one to three young (average of 1.77) have been observed per nest for Lower Keys marsh rabbits. The average for Lower Keys marsh rabbits is 3.7 litters per year, which indicates a much lower fecundity rate than for marsh rabbits in southern Florida, which average 5.7 litters per year. Some marsh rabbits experience total litter resorption that can affect their reproductive output. The loss of these ova can be related to maternal physiological changes in response to stressful events. Rates of litter resorption in the Lower Keys marsh rabbits are not known. Marsh rabbits are herbivores, fading on grasses, succulent plants, and herbaceous shrubs. Lower Keys marsh rabbits feed on at least 19 different plant species, representing 14 families. The most abundant species in the rabbit's diet include seashore dropseed, glassworts, cordgrass, seaside oxeye, red mangrove, and white mangrove. Based on their distribution, Lower Keys marsh rabbits appear to need only limited sources of freshwater to survive. In a study of several mammals from the lower Florida Keys, this rabbit has one of the highest capacities to No Name Key - Extension of Electric Service Page 16 concentrate urine. The Lower Keys marsh rabbit may be able to survive solely on dew and brackish water, but probably cannot use seawater to meet their need for water. Population size In 1995, the Lower Keys marsh rabbit population was 275 individuals (Forys et at, 1996). Since then, additional habitat areas have been found, but rabbits have also been extirpated from many previously occupied habitat patches. The actual number of rabbits is hard to estimate. The current population in 2006 was about 500 rabbits. An index of abundance that has been estimated more accurately for the Lower Keys marsh rabbit is patch occupancy, the number of occupied habitat patches. Occupancy rates can be compared among different subpopulation areas or different periods, in order to provide an index population decline or growth. Based on the information available as of 2006, the Lower Keys marsh rabbit currently exists on 118 patches, which average 5.1 acres in size. The average home range size of a marsh rabbit is about 12.6 acres. However, Hurricane Wilma storm surge inundated occupied habitat in 2005 and is believed to have had a significant detrimental effect on the marsh rabbit. Population structure: The Lower Keys marsh rabbit exists in a metapopulation structure. Rabbits occupy distinct patches of habitat. Clusters of adjacent patches comprise subpopulations. Rabbits living in these habitat patches are socially isolated from rabbits in other patches and subpopulations, but interact through dispersal. Distance among habitat patches is important because the ability of rabbits to recolonize vacant habitat patches depends upon the presence of viable habitat corridors. At the subpopulation level, interchange of rabbits may be rarer, depending on the distance between subpopulations. At the broadest scale, subpopulations may be so distant from other subpopulations that interchange may be nonexistent, and they constitute demes (isolated populations). For example, western subpopulations such as those on Boca Chica, Geiger, and Big Coppitt Keys are part of a metapopulation that is isolated from the metapopulation that encompasses Big Pine Key. A natural feature of metapopulation dynamics is periodic local extinctions (extirpation in patches) and recwlonization (immigration from extant patches). The probability that a population can persist in isolation depends on its initial size and the capacities of the resource base. In general, small populations cannot persist in isolation from other populations. For a population to persist, adjacent subpopulations are generally required, as they provide necessary sources of genetic diversity and recolonization. Accordingly, there must be a capacity for dispersal among patches. Population variability: Random population fluctuation is evident in the rabbit metapopulation; several subpopulations were so small and contained so few individuals of the same sex that they eventually became extirpated. Lower Keys marsh rabbits, at a density below carrying capacity, currently occupy over two-thirds of the No Name Key - Extenvon of Electric Service Nee 17 habitat identified in the Lower Keys. For a metapopulation to persist requires that some minimum extent of useable, occupied habitats are available, and configured so that interchange can occur among them. This subspecies is thought to be less fecund than other subspecies, making it relatively more susceptible to demographic and stochastic events, because the potential for rebounding from p g perturbations or capitalizing on opportunities may be relatively low. The Lower Keys marsh rabbit population may be strongly susceptible to chance environmental perturbations, such as hurricanes. For example, five out of six rabbits that were tracked by radio -telemetry on Boca Chica Key succumbed to Hurricane Wilma, which passed near Key West on October 24, 2005. On Boca Chica, the number of patches that were occupied during the previous dry season (winter) decreased by 33 percent after Hurricane Wilma passed. Status and distribution Reason for listing: The Lower Keys marsh rabbit was listed because of habitat loss and fragmentation, predation by cats, and vehicular mortality. Range -wide tread : Threats to the Lower Keys marsh rabbit have resulted in a decrease in the number of populations, a decline in the size of the populations, and reduced connectivity among patches and subpopulations. A population viability analysis for the Lower Keys marsh rabbit was conducted in 1999. The researchers suggest that the Lower Keys marsh rabbit metapopulations exist in the classic metapopulation structure but are declining due, in part, to low survival. The analysis predicted that this species might become extinct in 20 to 30 years under the current conditions. The population viability analysis also predicted a high probability of extinction if mortality from either vehicles or free -roaming cats is not controlled. Of the Keys studied. persistence of the population on Big Pine Key was predicted to be greater than on other keys because of larger habitat areas. The Lower Keys marsh rabbit occurs in small, largely disjunct subpopulations that cover a shrinking area. The number of patches of occupied habitat and the rate of occupancy continues to decline. Monitoring of patch occupancy has illustrated these annual declines. Results from rangewide monitoring efforts are available for four periods: 1988-1995, 2001-2003, winter 2003-2004, and winter 2004-2005. Occupancy rates between these periods declined 6.0, 3.9, and 2.0 percent, respectively. Among all three periods, the net loss of patches between periods averaged 6.3 patches. The Service and collaborators have initiated a reintroduction program. In 2002, 13 Lower Keys marsh rabbits were translocated to Little Pine Key, which resulted in successful establishment. In 2004, seven rabbits were translocated to Water Key, which also resulted in successful establishment on that island. In both cases, evidence of reproduction has been documented on the newly colonized islands. These efforts have served, to a degree, to offset No Name Key - Extension of Elewric Service page 18 some of the trends discussed above, and ameliorate threats. For example, several patches were recolonized, and portions of the geographical range were reoccupied. Threats The Lower Keys marsh rabbit is vulnerable to predation by free -roaming cats, habitat loss and degradation, hurricanes, vehicular traffic, contaminants, dumping and trash accumulation, poaching, fire ants, and exotic vegetation. The greatest threats to the continued existence of the Lower Keys marsh rabbit are predation by cats, habitat loss and degradation, and hurricanes. These threats not only directly affect the viability of local subpopulations, but also reduce the probability of successful dispersal among the increasingly fragmented habitats. Connectivity among suitable habitat patches is necessary for Lower Keys marsh rabbit dispersal among patches, and dispersal is a necessary process if rabbit metapopulations are to remain self -sustainable. In the past, humans often hunted the Lower Keys marsh rabbit; this is not known to be a current threat. Isolation from free -roaming cats appears to be the most important factor to help this species survive. Habitat Loss and Degradation Lower Keys marsh rabbit metapopulation exists as small, disjunct subpopulations, which require dispersal among subpopulations, because recolonization of temporarily extirpated subpopulations is periodically required in a metapopulation structure. The destruction and fragmentation of habitat may result in habitat patches that are too small to support the Lower Keys marsh rabbit. In the past 50 years, more than half the area of the suitable habitat of the Lower Keys marsh rabbit has been destroyed to construct residential housing, commercial facilities, utility lines, roads, or other infrastructure. The dredging of canals and fill in tidal areas for waterfront access further destroyed and fragmented Lower Keys marsh rabbit habitat. Much of the remaining suitable habitat of the Lower Keys marsh rabbit has been degraded by altered hydrological and fire regimes, invasive exotic plants, repeated mowing, dumping of trash, or off road vehicle use. Habitat fragmentation is as an important factor in Lower Key marsh rabbit demographics. Urbanization has fragmented the sites occupied by this species and has eliminated many of the corridors that allow movement between the increasingly isolated subpopulations. For example, commercial and residential development along US1 effectively creates a barrier to movement of Lower Keys marsh rabbits between northern and southern Big Pine Key subpopulations. In more urbanized areas where the vegetative cover has been removed and mowed, dispersing marsh rabbits have no cover from cats, and face greater threats from vehicles. No Name Key - EveRpon ofElecrric Service Big Pine Key HCP Page 19 Lower Keys marsh rabbit suitable habitat on Big Pine and No Name Keys is estimated at 1,045 acres of which 892 acres are in public ownership (85 percent). To address habitat loss and indirect effects (cat predation) associated with development on Big Pine and No Name Keys, the Service has issued a section 10(aXl)(8) ITP to Monroe County, FDOT, and DCA pursuant to the Act. Issuance of the ITP will exempt take of Key deer, Lower Keys marsh rabbit, and eastern indigo snake on Big Pine and No Name Keys, Monroe County, Florida. The take of these species will be incidental to land clearing for development and recreational improvements. The applicants have developed a Habitat Conservation Plan (HCP) that establishes guidelines for development activities on Big Pine and No Name Keys to occur progressively over the permit period (20 years) and provides a conservation and mitigation strategy to minimize and mitigate for impacts to protected species and their habitat. The HCP project area encompasses about 7,166 acres, including Big Pine Key (5,975 acres) and No Name Key (1,191 acres). Government owned lands constitute 69 percent of the HCP project area and these lands are protected under conservation status. The HCP allows for the loss of a maximum of 168 acres of potential Key deer and eastern indigo snake habitat and 36 acres of suitable marsh rabbit habitat. Compensation will be provided by the acquisition at a minimum of three mitigation units for every one -development unit of suitable habitat on Big Pine and No Name Keys. The Service has determined that this level of incidental take would not jeopardize the survival and recovery of these species. Furthermore, the Service considers the proposed FEMA action on Big Pine and No Name Keys, which will occur during the same timeframe, to be covered by and must comply with the terms of the HCP and therefore, to be a subset of the incidental take authorized for this species. Recovery of the Lower Keys marsh rabbit will continue to be challenging due to the lack of available habitat, road construction causing habitat fragmentation and development, and increased mortality due to cats. This recovery potential will increase if active management of populations and habitats is undertaken. Since residential and commercial construction affected both occupied and unoccupied sites over the past three decades, opportunities for conservation of the rabbit have been reduced. Silver Rice Rat The silver rice rat was originally described as a full species based on two specimens trapped in a freshwater marsh on Cudjoe Key in 1973. The silver rice rat is distinguished from mainland rice rats based on lighter pelage color, lack of digital bristles on hind foot, and a narrow skull with elongate nasal bones. Externally, the silver rice rat resembles other marsh rice rats in general form, being a medium-sized, semi -aquatic, generalized rat. However, the silver rice rat is distinct because it has no tufts of digital bristles projecting beyond the No Name Key - Extension of Electric Service Aole 20 ends of the median claws in the hind foot, and silver-gray pelage laterally. The body weight of silver rice rats caught in the field range between 2.1 5.3 ounces; male rice rats are generally heavier than females. External measurements of the holotype specimen for this species (United States National Museum 514995), which is an adult female, is; total body length 10 inches, tail 4.8 inches, hind foot 1.25 inches, and ear 0.7 inches (Spitzer and Lazell 1978). Distribution The silver rice rat occurs on twelve islands in the Lower Keys: Big Pine, Little Pine, Howe, Water, Middle Torch, Big Torch, Summerland, Raccoon, Johnston, Cudjoe, Upper Sugarloaf, and Saddlebunch Keys (Figure 2). Based on the availability of suitable habitat and proximity to existing populations, the silver rice rat may also occur on several other islands in the Lower Keys including but not limited to Little Torch and Ramrod. Habitat The silver rice rat is restricted to a narrow range of wetland habitat types; populations are widely distributed and they occur at extremely low densities. The silver rice rat occurs at comparable densities in both scrub and fringe mangrove communities, and microhabitat data suggest that this species may spend much of its time in red and black mangroves. The silver rice rat also requires a large home range. The need for a large home range may indicate a limited supply of food or freshwater resources for the silver rice rat in the Lower Keys. A low reproductive rate may also be an indicator of limiting food resources in wildlife populations. In surveys conducted in 1987 and 1985, rice rats were not found on Big Pine and Boca Chica Keys despite the availability of large areas of apparently suitable habitat. However, in a more recent extensive survey, an individual was recently trapped on the northern tip of Big Pine Key. Because of the semi -aquatic habits of the silver rice rat, the extensive areas it traverses, and fluctuations typical in small mammal populations, it is possible that Boca Chica and Big Pine Keys could be colonized from existing populations on adjacent islands. Black rats and raccoons on both Boca Chica and Big Pine Keys could be factors in the absence or rarity of silver rice rats from these islands. Silver rice rats are not found in the Upper Keys presumably because of the lack of suitable habitat. The first two captures of silver rice rats on Cudjoe Key were in a freshwater marsh vegetated mainly with sawgrass and cattails. Since those original captures, however, no silver rice rats have been captured in freshwater marshes. Rather, all captures have been in salt marsh habitats. Radiotelemetry and trapping data reveal the use of three topographic zones: low intertidal areas, low salt marsh, and buttonwood transitional salt marsh. Silver rice rats use low intertidal and low salt marsh habitats during activity periods, and swales in the low salt marsh are primary foraging sates. Buttonwood transitional salt marsh is at a higher elevation than other salt marsh habitats, and is used for foraging and nesting. The silver rice rat moves through small hammocks and buttonwood transitional zones. No Name Key - Extension of Electric Service Page 21 Silver rice rats are nocturnal and have been reported to range extensively, with an estimated home range of a male silver rice rat on Summerland Key of 56.3 acres documented. There is no estimate of dispersal distance for silver rice rats; however, their home range size is estimated to be larger than Is known for other rice rats, and consequently dispersal distances are likely large as well. Silver rice rats are generalized omnivores that eat a variety of plant and animal material. The diet of the silver rice rat includes seeds of saltwort, coconut palm (Cocos nucifera), and invertebrates including isopods. Population dynamies The silver rice rat population has apparently remained stable throughout its range in the last 10 years. The best available species population size is 5.000-20,000 individuals. Silver rice rats construct simple spherical nests looted near the ground. Nests are about 38 inches in diameter, and constructed primarily of grasses (Distichlis. Sporobolus), although the exact materials used in construction may vary. A single male silver rice rat on Summerland Key alternately used 16 different nest sites, often quite distant from each other, over a one -month period. Reproduction in silver rice rats can occur throughout the year and is likely influenced by a variety of ecological factors. The reproduction peak occurs after the wet season, from October to November, and gestation is 21-28 days with litter size ranging from 4 to 6. The average number of litters are produced in a year has not been documented. Status and distribution Reason for Listing: The silver rice rat was listed as an endangered species on April 30, 1991. At that time. the silver rice rat was extirpated from one Key where it formerly occurred and believed to be extirpated from two additional Keys. The silver rice rat was listed as endangered due to destruction of wetland habitat by development, predation, competition, and habitat modification from various introduced mammals. In the final rule listing the silver rice rat as an endangered species, the Service determined that critical habitat designation was not prudent. A reexamination of potential threats to the silver rice rat led the Service to conclude the illicit takings arising from publication of critical habitat may not be so serious as to render designation of critical habitat imprudent. Critical habitat was designated on September 30. 1993. Critical habitat is designated on eight islands in the Lower Keys, and is restricted to a narrow range of wetland habitat types. Some areas have been excluded from critical habitat designation based on comments received on the proposed rule. Rantewide Trends: Silver rice rats were documented on two new islands in 2005. Big Pine and Ramrod Keys, where no silver rice rats had been recorded in previous studies. No Name Key - Extension ofVectrie Service Threats The primary threat to the silver rice rat is degradation and loss of wetland habitat where this species occurs. Silver rice rats require expanses of high -quality salt marsh habitat. They are extremely limited in habitat occupancy, occurring in salt marsh and transitional buttonwood habitats. Construction activities typically result in the direct loss of habitat as well as secondary effects that extend into surrounding habitats. Related secondary effects include habitat fragmentation and an increase in the densities of black rats and domestic cats. Cats are predators of silver rice rats and there is evidence of interspecific competition between silver rice rats and black rats. Domestic cats are abundant throughout the Lower Keys, and sometimes forage in the higher elevation salt marsh habitats also used by the silver rice rat. Because rodents are often the most abundant items in a domestic cat's diet, the potential for domestic cats to prey upon silver rice rats is high. Given the low densities of silver rice rats throughout the Lower Keys, an increase in cat predation could have an adverse effect on this species. Raccoons, however, may be a more significant cause of mortality than cats, especially because cats primarily stalk prey in the wetland -upland transition zone, and not the more wetland areas where the rice rat predominates. Human habitation and solid waste accumulation encourage establishment of black rats, potentially adversely impacting rice rats. Anecdotal data suggest that black rats may out -compete silver rice rats for food and habitat resources; in areas of suitable habitat, the occurrence of black rats may preclude the survival of silver rice rats. Black rats may also prey upon newborn silver rice rats. Rodenticides, used to control black rats, also threaten the silver rice rat. Exotic fire ants, another secondary effect to human encroachment, may cause direct mortality of silver rice rats. Fire ants cause declines in populations of small mammals in Texas. The ants are attracted to mucous, so newborn silver rice rats would be vulnerable to predation. In some areas, the natural hydrologic cycles of silver rice rat wetland habitat have been altered by the construction of fill roads, borrow pits, and mosquito ditches. These alterations may encourage invasion by exotic vegetation, which may reduce the ability of the habitat to support rice rats. Some small, isolated, and widely distributed populations of silver rice rats may also vulnerable to extirpation through random demographic fluctuations, loss of genetic variability caused by a small population size, and stochastic environmental events (e.g., hurricanes) that may affect the entire population. Considering the limited range, habitat specificity, and low population density of the silver rice rat, it is unlikely that this animal was ever extremely abundant in the Lower Keys. No Name Key • Errension ofEkc rtc Servke Critical Habitat for the Silver Rice Rat Critical habitat was designated on September 30, 1993, for the silver rice rat and includes areas containing contiguous mangrove swamps, saltmarsh flats, and buttonwood transition vegetation. These vegetation types, as well as cattail marshes, contain the primary constituent elements of silver rice rat critical habitat. The major constituent elements of this critical habitat that require special management considerations or protection are: (1) mangrove swamps containing red mangrove (Rhizophora mangle), black mangrove (Avicenna germinans), white mangrove (Laguncularia racemosa), and buttonwood (Conocarpirs ereetus); (2) salt marshes, swales, and adjacent transitional wetlands containing saltwort (Basis maritima), perennial glasswort (Salicornia virginica), salgrass (Distichlis spicata), sea oxeye (Borrichia frutescens), Key grass (Monanthochloe littoralis), and coastal dropseed (Sporobolus virginicus), (3) and freshwater marshes containing cattails (Typha domingensis), sawgrass (Cladium jamaicense), and cordgrass (Spaitlna spp.). The original critical habitat proposal included nine Keys totaling 10,062 acres on the following islands: Little Pine, Water (north of Big Torch, but not the Water Key west of Little Pine), Big Torch, Middle Torch, Raccoon, Summerland, Cudjoe, Johnston, and Saddlebunch Keys. About 5,003 acres of the proposed critical habitat was within the NKDR boundaries, After a scientific and economic analysis, the Service concluded there was no justification for excluding areas from the proposed critical habitat based on economic reasons, although two areas should be excluded from critical habitat designation because they no longer supported significant silver rice rat habitat. These two areas totaled 1,032 acres, with 460 acres on Summerland Key and 572 acres on Cudjoe Key. Both areas are located south of US1, are urbanized and hence have little remaining suitable habitat left for the silver rice rat. Based on GIS mapping of the constituent elements and the habitat types codified in the 50 CFR §17.95(a), 8,645 acres encompass the critical habitat for this species, of which 6,712 acres are in government ownership (77.6 percent) and about 1,933 acres in private ownership (22A percent). As of 2006, approximately 264 acres of rice rat critical habitat have been developed. Federal, State, and local regulations largely prohibit development in wetland habitats where the species is found. Critical habitat only affects Federal agency actions and does not apply to private, or, local or State govemment activities that are not subject to Federal authorization or funding. Federal agencies affected by the designation of silver rice rat critical habitat include the Service's NKDR, U.S. Army Corps of Engineers (COE), and the Federal Emergency Management Agency (FEMA). Seven of the nine keys in critical habitat are within the NKDR boundaries. Although the NKDR is managed for Key deer, the habitat No Name Key - E.xiewim of Electric Service Page 2* requirements and biological needs of the species do not convict. Both the permitting program of the COE and the administration of flood insurance by FEMA are affected by the silver rice rat's critical habitat designation. The COE is required to insure that issuance of permits, under section 404 of the Clean water Act, does not likely result in the destruction or adverse modification of critical habitat for the silver rice rat. Permitting actions that may affect the silver rice rat or areas within silver rice rat critical habitat require section 7 consultation with the Service. FEMA provides flood insurance for residential and commercial activities, which in some cases may involve construction of structures in silver rice rat critical habitat. Eastern Indigo Snake The eastern indigo snake is a large, black, non -venomous snake found in the southeastern U.S. It is widely distributed throughout central and South Florida, but primarily occurs in sandhill habitats in northern Florida and southern Georgia. The eastern indigo snake was listed as a threatened species as a result of dramatic population declines caused by over -collecting for the domestic and international pet trade as well as mortalities caused by rattlesnake collectors who gassed gopher tortoise burrows to collect snakes. Since its listing, habitat loss and fragmentation by residential and commercial expansion have become much more significant threats to the eastern indigo snake. Description The eastern indigo snake is the longest snake in the United States (R. Hammer, Metro Dade Park and Recreation, personal communication 1998), reaching lengths of up to 265 cm (Ashton and Ashton 1981). Its color is uniformly lustrous -black, dorsally and ventrally, except for a red or cream -colored suffusion of the chin, throat, and sometimes the cheeks, Its scales are large and smooth (the central 3 to 5 scale rows are lightly keeled in adult males) in 17 scale rows at midbody. Its anal plate is undivided. Its antepenultimate supralabial scale does not contact the temporal or postocular scales. In the Florida Keys, adult eastern indigo snakes seem to have less red on their faces or throats compared to most mainland specimens and those in north Florida typically have little to no red (Laze!! 1989; P. Moler, GFC, personal communication 1998). Page 4-567 Federal Status: Threatened (January 31, 1978) Critical Habitat: None Designated Florida Status: Threatened Figure 1. Florida distribution of the eastern indigo snake. Eastern Indigo Snake Drymarchon corais couperi Taxonomy The indigo snake (Drymarchon corals) ranges from the southeastern U.S. to northern Argentina (Molar 1992). This species has eight recognized subspecies, two of which occur in the U.S. (Conant 1975, Moler I985a): the eastern indigo (D. c. couperi) and the Texas indigo (D. c. erebennus). The eastern indigo snake was originally described as Coluber couperi by Holbrook in 1842 and was later reassigned to the genus Georgia by Baird and Girard in 1853. No Name Key - Fslenslon of Electric Serviee Page 2$ Cope transferred it to the genus Spilotes in 1860 and later (1862) described it as a subspecies of Spilotes corais. Cope assigned the species corals to the genus Compsosoma in 1900. In 1917, Stejneger and Barbour resurrected the genus name Drymarchon, (Drymarchon corais; Daudin 1827), including the eastern indigo snake as Drymarchon corals couperi. Distribution Historically, the eastern indigo snake occurred throughout Florida and in the coastal plain of Georgia, Alabama and Mississippi (L'ding 1922, Haltom 1931, Carr L940, Cook 1954, Diemer and Speake 1983, Moler 1985a). It may have occurred in southern South Carolina, but its occurrence there cannot be confirmed. Georgia and Florida currently support the remaining, endemic populations of the eastern indigo snake (Lawler 1977). in 1982, only a few populations remained in the Florida panhandle, and the species was considered rare in that region. Nevertheless, based on museum specimens and field sightings, the eastern indigo snake still occurs throughout Florida, even though they are not commonly seen (Moler 1985a) (Figure 1). in South Florida, the eastern indigo snake is thought to be widely distributed. Given their preference for upland habitats, eastern indigos are not commonly found in great numbers in the wetland complexes of the Everglades region, even though they are found in pinelands, tropical hardwood hammocks, and mangrove forests in extreme South Florida (Duellman and Schwartz 1958, Steiner et al. 1983). Eastern indigo snakes also occur in the Florida Keys. They have been collected from Big Pine and Middle Torch Keys, and are reliably reported from Big Torch, Little Torch, Summerlar4 Cudjocq Sugarloaf and Boca Chica Keys (Lazell 1989). Moler documented eastern indigo snakes on North Key Largo and feels they are probably restricted to Crocodile Lake NWR and the protected hammock areas on that Key. Given the ubiquitous nature of the eastern indigo snake throughout the remainder of its range, we believe it probably occurs on other keys. Habitat Over most of its range, the eastern indigo snake frequents several habitat types, including pine flatwoods, scrubby flatwoods, high pine, dry prairie, tropical hardwood hammocks, edges of freshwater marshes, agricultural fields, coastal dunes, and human -altered habitats. Eastern indigo snakes need a mosaic of habitats to complete their annual cycle. interspersion of tortoise -inhabited sandhills and wetlands improves habitat quality for this species (Landers and Speake 1980, Auffenberg and Franz 1982). In the milder climates of central and southern Florida, eastern indigo snakes exist in a more stable thermal environment, where availability of thermal refugia may not be as critical to the snake's survival. Throughout peninsular Florida, this species may be found in all terrestrial habitats which have not suffered highdensity urban development. They are especially common in the hydric hammocks throughout this region (Moler 1985a). No Nance Key - Extension of Electric Sendce Par 16 In central and coastal Florida, eastern indigos are mainly found within many of the State's high, sandy ridges. in extreme South Florida, these snakes are typically found in pine flatwoods, pine rocklands, tropical hardwood hammocks, and in most other undeveloped areas (Kuntz 1977). Eastern indigo snakes also use some agricultural lands (e.g., citrus) and various types of wetlands (Layne and Steiner 1996). Even though thermal stress may not be a limiting factor throughout the year in South Florida, eastern indigo snakes still seek and use underground refugia in the region. On the sandy central ridge of South Florida, eastern indigos use gopher tortoise burrows more (62 percent) than other underground refugia (Layne and Steiner 19%). Other underground retLgia used by this species include burrows of armadillos, cotton rats (Sigmodon hispi(hus), and land crabs; burrows of unknown origin; natural ground holes; hollows at the base of trees or shrubs; ground litter; trash piles; and in the crevices of rock -lined ditch walls (Layne and Steiner 1996). These refugia are used most frequently where tortoise burrows are not available, principally in low-lying areas off of the central and coastal ridges. Behavior and Reproduction Most information on the reproductive cycle of eastern indigo snakes is from data collected in north Florida. Here, breeding occurs between November and April, and females deposit four to 12 eggs during May or June (Moler 1992). Speake et al. (1987) reported an average clutch size of 9.4 for 20 captive bred females. Eggs are laid from late May through August, and young hatch in approximately 3 months. Peak hatching activity occurs between August and September, and yearling activity peaks in April and May (Groves 1960, Smith 1987). Limited information on the reproductive cycle in south-central Florida suggests that the breeding and egg laying season may be extended. In this region, breeding extends from June to January, laying occurs from April to July, and hatching occurs during mid -summer to early fall (Layne and Steiner 1906). Female indigo snakes can store sperm and delay ferti lization of eggs. There is a single record of a captive snake laying five eggs (at least one of which was fertile) after being isolated for more than four years (Carson 1945). It has long been assumed that this event resulted from sperm storage. However, there have been several recent reports of parthenogenetic reproduction by virginal snakes. Hence, sperm storage may not have been involved in Carson's (1945). There is no information on how long eastern indigo snakes live in the wild; in captivity, the longest an eastern indigo snake lived was 25 years, I 1 months (Shaw 1959). Feeding The eastern indigo snake is an active terrestrial and fossorial predator that will eat any vertebrate small enough to be overpowered. Layne and Steiner (1996) documented several instances of indigos flushing prey from cover and then chasing it. While rare, these snakes may also climb shrubs or trees in search of prey. An adult eastern indigo snake's diet may include fish, frogs, toads, snakes (venomous as well as no-nvenomous), lizards, turtles, turtle eggs, juvenile gopher tortoises, small alligators, birds, and small mammals (Keegan 1944, Babis 1949, Kochman 1978, Steiner et al. 1983). Juvenile eastern indigo snakes eat mostly invertebrates (Layne and Steiner 1996). No Name Key - Extension of Electric Service Movements Indigo snakes range over large areas and into various habitats throughout the year, with most activity occurring in the summer and fall (Smith 1987, Moler 1985b, Speake 1993). In Georgia, the average range of the eastern indigo snake is 4.8 ha during the winter (December to April), 42.9 ha during late spring and early summer and 97.4 ha during late summer and fall. Warmer weather during the winter months in South Florida may afford the eastern indigo snake a larger range than 4.9 ha. Adult males have larger home ranges than adult females and juveniles; their ranges may encompass as much as 224 ha and 158 ha in the summer (Moler 1985b, Speake 1993). By contrast, a gravid female may use from 1.4 to 42.9 ha (Smith 1987). These estimates are comparable with those found by Layne and Steiner (1996) in south-central Florida, who determined adult male home ranges average about 74 ha (max. 199.2 ha), whereas adult female home ranges average about 19 ha (max. 48.6 ha). Relationship to Other Species Eastern indigo snakes require a sheltered "refuge" from winter cold and dry conditions. Wherever the eastern indigo snake occurs in xeric habitats, it is closely associated with the gopher tortoise, the burrows of which provide shelter from winter cold and the desiccating sandhill environment (Bogert and Cowles 1947, Speake et at. 1978). This dependence seems especially pronounced in Georgia, Alabama, and the panhandle area of Florida, where eastern indigo snakes are largely restricted in the winter to sandhill habitats occupied by gopher tortoises (Diemer and Speake 1981, Moler 1985b, Mount 1975). In more mesic habitats that lack gopher tortoises, eastern indigo snakes may take shelter in hollowed root channels, rodent burrows, armadillo burrows, hollow logs, or crab burrows (Lawler 1977, Moler 1985b). Status and Trends The eastern indigo snake was listed because of a population decline caused by habitat loss, over -collecting for the pet trade, and mortality from gassing gopher tortoise burrows to collect rattlesnakes. At the time of listing, the main factor in the decline of this species was attributed to exploitation for the pet trade. As a result of effective law enforcement, the pressure from collectors has declined but still remains a concern. The eastern indigo snake will use most of the habitat types available in its home range, but prefers open, undeveloped areas (Kuntz 1977). Because of its relatively large home range, this snake is especially vulnerable to habitat loss, degradation, and fragmentation (Lawler 1977, Moler 1985b). Lawler (1977) noted that eastern indigo snake habitat has been destroyed by residential and commercial construction, agriculture, and timbering. He stated that the loss of natural habitat is increasing because of these threats; in Florida, indigo snake habitat is being lost at a rate of five percent per year (Lawler 1977). Low density residential housing is also a potential threat to this species, increasing the likelihood of snakes being killed by property owners and domestic pets. Extensive tracts of wild land are the most important refuge for large numbers of eastern indigo snakes (Diemer and Speake 1981, Moler 1985b). Additional human page 28 No Nan, Key - Exrension of Fj_jric Service o ulation growth will increase the risk of direct mortality of the eastern indigo snake from property owners, PP domestic animals, and highway mortality f habitat destruction and degradation• we have no quantitative data with which to evaluate the wend of eastern indigo snakes in South Florida, Although we surmise the population as a whole is declining because of current rates o purposes, most of which are dential, and commercial Natural communities continue to be altered for agricultural'sttkes'(Kautz 1993). Habitat destruction and alteration are incompatible with the habitat needs of Eastern indigo ridges of south-central Florida, whero probably most substantial along the coasts. in the Keys, and along the high g (principally citrus) continue to growth is expected to continue to accelerate. Agricultural interests (P human population snake habitat throughout much of South Florida. Even with destroy large expanses of suitable natural indigo continued habitat destruction and alterations, this species will probably persist in most localities where large. un— ain. Unfortunately, current and anticipated future habitat fragmentation wil l fragmented pieces a natural habitat rems of indigo snakes. Fragmented habitat patches probably probably result in a large number of isolated, small group cannot support a sufficient number of individuals to ensure viable populations. Management large expanses of unaltered habitat must be proted=d. To protect and recover the eastern indigo snake, is not known because population of land required and its distribution over the landscape Unfortunately, the amount thorefore, of ttte viability analysis or spatially explicit modeling have not been completed. We know nothing, the size Population r size required to maintain and recover eastern indigo snakes or habitat ne`eds:'thereftrre minimump necessary for effective preserves. We have no information on population the amount of land needed to proms eastern indigo s n ak e s • several "educated guesses" have been made regarding ival of a gnu estimates suggested several thousand hectares may be sufficient to that ensure must be at least 4 .- 000 Early suggested that h preserves of individuals (Speake et al. 1978). More recently. it has been sugg go ha for ha. If we assume an average home range to be about 75 ha for males and 9 female ates assume for al ekhP preserves of this size may be able to support about 53 males and 210 females-ul ation s between males and females and that all of the preserve area would be suitable habitat. Pop Of home range populations of this size can be expected to persist. modeling will be needed to determine if isolated ction of ve naturml and f the large protected lands in South Florida have been purchased for the srote .nain'ng and' Most o enhancis"9 the cultural resources. Presumably, management of these lands r these directed Mal goals are achieved, eastern diversity of plant and animal assemblages within these Properties- directly benefit because of improved habitat conditions. indigo snakes. as well as other species, will k No Name Key - Extension of Electric Savice Stock Island treemall Say first described the Stock Island tree snail in 1830 based on a snail that was probably collected from Key West. That specimen was lost and the species was later described by Pilsbry (1946) using a snail from Stock Island. The Stock Island tree snail is a subspecies in the genus Orthalicvs. Pilsbry wrote that he believed Orihalicia (Subfamily Orthalicinae) migrated through tropical America on Floating trees that were later blown ashore although he provides no specific evidence of this phenomenon. Pilsbry (1946) described the Stock Island tree snail as having a shell that "...is rather thin and light, less solid than (other] races of (Orthalletis]. White to warm butt this tint deepening near the lip or behind the later varices; stripes... purplish brown, running with the growth -lines, the stripes and the streaks often interrupted between the bands, and mostly not extending below the Lower one; growth -rest varices usually 2 to 4 on the last whorl; three spiral banks, the Upper and Lower interrupted. are indicated, but weaken with age. Apex white, aperture showing the varices, bands and streaks vividly inside; columella white, straightened above; parietal callus white or dilute chestnut in old shells. The characteristics that most distinguish this species from O. reses neso&yw are the white apex and white columella and parietal callus. These characteristics are chestnut -brown or darker in O. reses nesodryas. " Distribution and Habitat Historically, Stock Island tree snails occurred only on Stock Island and Key West. Today, populations of snails occur throughout the Keys in hardwood hammocks. The majority of suitable habitat is now unoccupied. The Service has current records of 28 populations in the Florida Keys, many believed to be populations distributed by collectors. Snails feed on epiphytic growth on hardwood tree trunks, branches and leaves. The Stock Island tree snail survives best in hammocks of native trees that support relatively large amounts of lichens and algae. In the Keys, Ortha/icus is li mited to those portions of the islands that have minimum elevations of 5-11 feet. Larger trees support more Stock Island tree snails than smaller trees because they provide the snails with an increased surface area for foraging (Deisler 1987). There is no evidence that Stock Island tree snails prefer certain tree types or species (Deisler 1987). However, Voss (1976) wrote that the tree snails generally prefer trees with smooth bark to trees with rough bark, because the snails would require less energy to crawl over smooth bark. He also believed Stock Island tree snails would prefer smooth bark because it would make it easier for them to form a secure mucous seal when they were aestivating, resulting in lower mortalities from dehydration or accidental dislodgement. Stock Island tree snails are arboreal except when they move to the forest floor for nesting or traveling. Hammocks that contained organic soils or leaf litter are probably necessary for nesting activity and dispersal. No Name Key - Extension ofElectnc 5errice page so No data are available on minimal hammock size needed to support a viable population of tree snails. Suitable habitat would have to include an area large enough to provide for foraging and nesting requirements as well as provide for the microclimate (air temperature and humidity) needed by the Stock Island tree snail. Behavior The Stock Island tree snails are active mainly during the wet season. Besides the reproductive activities discussed above, most of the feeding and dispersion takes place during the wet season (May through November). Dry periods (usually December through April) are spent in aestivation in which the Stock Island tree snail forms a tight sealed barrier between the aperture and a tree trunk or branch. Snails may come out of aestivation briefly to feed during dry -season rains or go into aestivation during summer dry spells. Feeding Little is known about the feeding habits or food preferences of the Stock Island tree snail. Probable food items include a large variety of fungi, algae, and lichens found on many of the native hammock trees. Mixobacteria and some small mites may serve as a secondary food source. Feeding can occur anytime during the day or night with peak feeding activity occurring from late afternoon through the night to mid- morning and during or immediately after rainfall. Feeding Stock Island tree snails often follow a random twisting path that covers the entire bark surface but will move in a straight line if surface moisture is abundant. Population dynamics PQRSIloign Siu: Enthusiasts and collectors have introduced Stock island tree snails to new areas and it is believed that other, unknown, populations exist. Today, populations of snails are found throughout the Keys in hardwood hammocks. The Service has current records of 28 populations, many believed to be populations distributed by collectors. Population Variability: The snails are hermaphroditic, but cross-fertilization appears to be common. They mate and nest in late summer and early fall during the wettest part of the rainy season. They lay about 15 eggs per clutch in a cavity dug into the soil humus layer, usually at the base of a tree, and take anywhere from 24 to 105 hours to deposit their eggs (Deisler 1987, McNeese 1989). The eggs hatch during the onset of the rains the following spring. The Stock island tree snails immediately proceeded upon hatching to climb adjacent trees. Most nesting snails appear to be about 2-3 years old. They may live for up to 6 years, with 2.11 years being the mean age for the Stock Island population at the time of Deisler's study (1987). The Stock Island tree snail's age can be estimated by counting the number of dark "suture -like" lines resulting from pigment deposition during long dry spells (the dry season). No Name Key - Extension ojElectric Semite Status and Distribution Reason for : The Stock Island tree snail was listed as threatened by the Service on July 1978 (Service 1978) because of population declines, habitat destruction and modification, pesticide use, and over -collecting (Service 1982c). Since its original listing, this threatened snail was thought to have been eliminated from its historic range on Stock Island by habitat destruction; however, snails were observed there two years ago in the botanical garden (Hughes, personal communication, 2006). Ranaewide Trends: McNeese, 1997 concluded that the Stock Island tree snail was extinct on Stock [stand. However, snails were observed there two years ago in the botanical garden (Hughes, personal communication, 2006). Recently, a new population was discovered in Key Largo. At least three populations now exist in South Key Largo. Viable populations are apparently successful in North Key Largo. Today, populations of snails occur throughout the Keys in hardwood hammocks. The Service has current records of 28 populations, many believed to be populations distributed by collectors. Locations of tree snails are not published due to concerns that collectors will locate them and kill them. Therefore it is not known if the Stock Island tree snail occurs on No Name Key although it is known that a small group of snails was relocated there by Service and FWC biologists in the 1990's. Threats The greatest threat to the Stock Island tree snail is the loss and modification of its habitat, although natural disasters such as hurricanes and drought can have a significant effect. Fire ants may also have an adverse impact on tree snails, especially nesting activities. Iguanas were recently documented to feed upon tree snails (Townsend et al. 2005), representing a potential threat. 4iarber's SDarge Garber's spurge is a short-lived, perennial herb belonging to the Euphorbiaceae or spurge family. This species is known from pine rocklands, coastal flats, coastal grasslands, and beach ridges in Miami -Dade and Monroe counties, Florida. It requires open sunny areas and needs periodic fires to maintain habitat suitability, although this has not yet been verified by studies. It is found throughout its historic range and is abundant in some areas, but the populations are relatively disjunct. Habitat loss and exotic plant invasion threaten its recovery. Description Garber's spurge is a prostrate to erect herb with pubescent stems. The leaves are ovate in shape and 4 to 9 mm long, with entire or obscurely serrate leaf margins. The cyathia are about 1.5 mm long and bome singly at the leaf axi Is. No Nance Key - Extension gfDectric Service Pop 32 The appendages are minute or completely absent. The fruit is a pubescent capsule 1.5 mm wide. The seeds either are smooth or have transverse ridges, but are not wrinkled; this is not, however, a distinctive character for this species. Taxonomy Garber's spurge was first described by Engelman as Euphorbia garberi Engelman in 1883 (Engelman in Chapman 1883). In 1903, Small transferred it to the genus Chamaesyce (Small 1903), a natural genus distinguished from Euphorbia by having the main stem abortive just above the cotyledons, making the aerial portion of Chamaesyce homologous to the inflorescence of Euphorbia subgenus Esula (Webster 1967). Herndon (1989, 1993) includes Chamaesyce porteriana Small var. keyensis Small within C. garberi, citing that the erect growth form of C. porteriana var. keyensis was within the range of variation for C. garberl. Distribution Garber's spurge is endemic to South Florida. It is abundant on Cape Sable and is probably found throughout the Keys in small numbers. Historically, it occurred from Perrin, Miami -Dade County, west to Cape Sable, Monroe County, and to the Sand Keys west of Key West, Monroe County (Small 1933. Long and Lakela 1971). Habitat Garber's spurge occurs at low elevations either on thin sandy soils composed largely of Pamlico sands or directly on limestone. It is found in a variety of open to moderately shaded habitat types. In pine rocklands, it grows out of crevices in oolitic limestone. On Cape Sable, Everglades NP, it has been reported from hammock edges, open grassy prairies, and backdune swales. In the Florida Keys, it grows on semi -exposed limestone shores, open calcareous salt Rats, pine rocklands, calcareous sands of beach ridges, and along disturbed roadsides. Reproduction Reproductive ecology in Chamaesyce has been poorly studied, but is known to be highly variable (Ehrenfeld 1976 and 1979; Webster 1967). Some species are completely reliant on insects for pollination and seed production while others are self -pollinating. Pollinators may include bees, flies, ants, and wasps (Ehrenfeld 1979). The seed capsules of many Euphorbiaceae are explosively dehiscent, ejecting seeds a short distance from the parent plant. Some seeds are dispersed by ants (Pemberton 1988). Relationship to Other Species Garber's spurge occurs in association with Randia aculeata, Lantana involucrata, Sideroxylon saHclfolium, and Brysonima hwida and many more scrub understory species. Relationships to pollinators and seed dispersers are not known. No Name Key - Extension of Electric Service Status and Trends Garber's spurge was listed in 1985 because of habitat loss from increased residential and commercial development (50 CFR 29349). A complete status survey has not been performed for Garber's spurge since 1980. In the status survey Austin et al. (1981) found five sites; three on Cape Sable (Everglades NP), one on Long Pine Key (Everglades NP), and one on Big Pine Key. Only the Long Pine Key site has been resurveyed, and it was found to contain approximately 150 plants (DERM 1994). Cape Sable, in Everglades NP, has an invasive exotics problem that the Park has not, until recently, been able to address (D. Jones, Everglades National Park, personal communication 1997a). The extent of the exotic plant cover was partially assessed in 1996 (Seavey et al. 1996). The Park began an exotics control program in 1997. The status of the three Garber's spurge populations on the Cape is not known. A new population was found in 1988 at the Charles Deering Estate, Miami -Dade County, after a burn. It had 250 to 500 plants in 1991, but the population size appears to be getting smaller (K. Bradley, Institute for Regional Conservation, personal communication 1996). Since Herndon (1993) inclusion of C. porteriana var. keyensis under Garber's spurge, two other sites have been added, Bahia Honda State Park and Long Key SRA. The population sizes and trends at these sites are unknown. Habitat for the Garber's spurge has been lost to development, fire suppression, and invasive exotics. In addition, the remaining habitat is relatively fragmented and most populations are small. These small, disjunct populations are more susceptible to extirpation from a single disturbance, natural or manmade, without the chance of recruitment from a nearby population. Fire suppression and the invasion of exotic plants can result in over -shading of the understory, reducing the quality of the habitat. Over time this could lead to the extirpation of Garber's spurge at these sites. Management Garber's spurge occurs in a few protected areas where it is being managed. The National Key Deer Refuge uses prescribed fire to manage pineland habitats on the refuge. The main focus of their management is for the key deer, but it may benefit Garber's spurge. In Everglades NP, fire is used as a management tool in pine rocklands. However, management at Cape Sable has been limited by the available manpower and funding. Garber's spurge occurs in a variety of habitats in the Florida Keys and Miami -Dade County and will require management practices specific to each habitat. Although there are differences between the habitats, they are all early successional and require some type of disturbance (i.e. fire or wash over). The habitats in the Florida Keys have a slower growth rate than similar habitats in Miami -Dade County and require less frequent disturbance. Presently, many of the publicly owned lands in the Florida Keys and Everglades NP use prescribed fire as a management tool. Fire management in Everglades NP has shifted to an early wet season burn schedule (D. Jones Everglades NP, personal communication 1997b). In Miami -Dade County pinelands, a fire No Name Key Esteesion of'Electric &rrice Page 34 frequency of 3 to 7 years is generally recommended. However, in the Florida Keys there is very little information available to determine how frequently disturbances are needed. Any prescribed fire management, especially in the Florida Keys, should include a monitoring program to determine the effectiveness of management. Monitoring should include the species distribution (presence/absence), quantitative assessment of abundance or condition, and demographic information on individual plants (Menges and Gordon 19%). There should also be a component to the monitoring that captures the health of the community and species that occur in association with Garber's spurge (C. Kernan, Fairchild Tropical Garden, personal communication 1996). Invasive exotic plant species, especially Brazilian pepper, Burma reed, and Cogon grass (lmperata cylindrica) threaten many of the listed pine rockland species and other rare pine rockland plants. The control of exotic species is a very important part of maintaining the habitat, although it can be very costly once exotics are established in an area. Kev Tree-cech The Key tree -cactus is a large, tree -like cactus with erect columnar stems, reaching 10 m in height. At maturity, the plants are either much -branched (in variation robinii), or remaining few -branched (in variation deeringii). The stems of the tree -cactus are cylindrical, green, succulent, and 2 to 4 inches thick, with nine to 15 prominent ribs. Areoles bear 15 to 30 acicular spines that are up to 0.78 inches long and are thickly pubescent when young. Flowers are solitary in the Upper areoles, nocturnal, and 2.0 to 2.3 inches long. The outer perianth segments of the flowers are green, with tips pointed (in variation robinii) or rounded (in variation deeringii). The inner perianth segments of the flowers are white. The style is slightly exsetted (in variation robinii) or included (in variation deeringii). The fruit of the Key tree cactus is globose, depressed, and I to 1.6 inches in diameter. The coat of this fruit is thin, leathery, bright red, and splits open at maturity. The seeds are small, hard, shiny black, and set in a soft, white pulp. Distribution The Key tree -cactus grows in the coastal hammocks of the Keys (Avery 1982, Benson 1982, Britton and Rose, 1937 Small 1917, 1921) and in the coastal thickets of the Matanzas and Habana provinces in Cuba (Benson 1992, Britton and Rose 1937). The historical distribution of this species on the Florida Keys, which included populations that are now extinct on Key West, Boca Chica, and Windley Keys, has been substantially diminished by the destruction of populations occurring in the Lower Keys, particularly Key West (Avery 1982, Britton and Rose 1937, Small 1917, 1921). Construction and development activity has been directly responsible for the destruction of several major Key tree -cactus populations over the past seven decades (Austin 1980, Avery [no date], Britton and Rose 1937, Small 1921,1924). No Name Key - Extension of Eleerne Semwe Habitat The Key tree -cactus grows in a narrow range of plant associations, which include tropical hardwood hammocks and a thorn -scrub association known locally as a "cactus hammock." The major requirements for successful growth of Key tree -cactus are an open canopy and freedom from frequent floods or frequent fires. Hardwood hammocks inhabited by the species are typically in an early stage of succession following disturbance (Avery [no date], Small 1917, 1921). Dominant tree species include Bumelia salicifolia, Bursera simaruba, Coccoloba diversifolia, Ficus aurea, Krugiodendron ferreum, Metopium toxiferum, and Piscidia piscipula. The Lower story of the canopy E typically contains small trees of the dominant species and plants of Amyris elemifera, Ateramnus lucidus, Bumelia i celastrina, Capparis flexuosa, Eugenia foetida, Guapira discolor, Pithecellobium guadelupense, Randia aculeata, and Zanthoxylum fagara (Austin 1980, Weiner [no date]). These hardwood hammocks are upland communities which are flooded only rarely (during major storms) and are mesic in character (Weiner [no date]). The thorn -scrub, "cactus hammock" association occurs at relatively low elevations in the Keys and is prone to more flooding. Consequently, the canopy of this vegetative community is lower and more open than hardwood hammocks. Conocarpus erectus and Ximenia americana are the most typical dominant tree species (Weiner [no date]). Cereus gracilis, Cereus pentagonus, and Opuntia dillenii are common associates of Key tree -cactus in these habitats. Key tree -cactus exists on high sites within cactus hammocks that are rarely flooded. These sites support the hardwood hammock species listed above, but they are rarely extensive enough to allow typical development of hardwood hammocks. The hardwood hammocks and cactus hammocks where the Key tree -cactus grows are all on coral rock. Key tree - cactus grows well on well -drained upland sites with little or no soil development. Mineral soil is, if present at all, a very thin (less than 0.4 inches) layer of rock rubble, calcareous sands or calcareous marl (Austin 1980). A layer of leaf litter one to two cm thick is typically present (Austin 1980). Deeper accumulations of soil may be found in pockets and crevices in the rock. These soils are classified as Histosols (Soil Conservation Service 1975). They are placed in the "catch-all" Rockland groups (Jones 1948). There is no detailed work on soil types in the Keys due to their small area, agricultural insignificance, and lack of well -developed soils. Hammocks on Key West and Boca Chica Key, where Key tree -cactus grew in the past, were developed on oolitic limestone. Soil conditions at these sites were not recorded, but were probably similar to those listed above. Key tree -cactus exists in small, isolated patches or clumps. The patches may consist of a single plant. or a group of plants may cover an area of tens of square meters (Austin 1980. Small 1917). When many plants occur in a clump, most, if not all, of the separate stems likely represent vegetative offshoots of one or a few founders. Vegetative reproduction is common because of old stems being knocked to the ground. No Name Key - E temlon of Electric Service Reproduction Long distance dispersal and establishment of new tree -cactus populations is dependent upon the production of seed. However, reproduction within a single population (a clump) is mostly, if not entirely, vegetative. This reproductive strategy (formation of clonal clumps from rooted wind -thrown branches) also accounts, in part, for the clumped distribution of the species (Adams and Lima 1994). Pollination agents are unknown, but may include sphingid moths (Adams and Lima 1994). Seed dispersal by birds (Cardinaiis cardinalis, for example) is indicated for this species (Austin 1980). The effective dispensers would be those fruit -eating birds, which favor openings in the woods. The Key tree -cactus can flower year-round, but July. August, and September are peak flowering periods. Mature flowers develop in about 12-14 days, and many flowers may occur simultaneously on a single pseudocephalium (Adams and Lima 1994). Seed dispersal, based on one observation, occurs in August (Austin 1980; Avery [no date]). Population dynamics The Key tree -cactus is known to occur at seven locations in the Keys. Three (two on Long Key and one on Big Pine Key) locations are protected on public lands managed for conservation. Of those four on private lands, one is protected from disturbance by a conservation easement and one population may be deceased (Klett, personal communication, 2006). The Key tree -cactus has probably always been rare in Florida. The primary cause for this rarity seems to be the rather restrictive habitat requirements of the species. It grows only on lightly shaded, upland sites. This habitat is not common on the Keys, and, furthermore, is transient in nature. The habitat preferred by Key tree -cactus occurs primarily in naturally disturbed patches of hammock (Avery [no date], Small 1917, 1921). The location of these patches changes with time as disturbed areas re -grow and new sites are disturbed. In the fall of 2004, Service staff noticed mortality in the population on Long Key. By November 2004, we recognized the problem as a widespread decline phenomenon afflicting most other subpopulations. Morbid trees showed a lack of living tissue (only woody pith) at the base. This pattern was observed to extend upwards, as an advancing edge of necrotic tissue, towards the branch tips. There is little information on the species autecology or synecology. Status and distribution Reason for Listing: The Key tree -cactus was federally listed as endangered on July 19, 1984 (Service 1984). The tree -cactus was listed because of severe population declines caused by destruction of upland areas in the Keys for commercial and residential development. No Name Key - ExfensW of Electrk Serrrce Pose J7 Range wide Trends: Key West once held a large population of this species (Britton and Rose 1937, Small 1917). The last plants apparently died when the final remnants of the original forest were cleared on the island during the 1920's (Small 1921). Plants on nearby Boca Chica Key (Britton and Rose 1937) presumably shared the same fate. Populations reported for Windley Key and Lower Matecumbe Key (Small 1917) were presumed to have been destroyed (Avery 1982). the population on Lower Matecumbe Key was recently rediscovered (Adams and Lima 1994). In recent years, a population of Key tree -cactus on Long Key was destroyed when the hammock where it grew, just east of the town of Layton, was cleared for development. Key tree -cactus populations documented in 1994 (Adams and Lima 1994) occur on Upper Matecumbe Key (two populations), Lower Matecumbe Key (one population), Long Key (three populations), and Big Pine Key (two populations). Service records (2006b) document seven populations of tree cactus, only three occur on protected public lands: one at the NKDR and two at Long Key State Recreation Area. The other four populations occur on private lands. Of those four on private lands, one is protected from disturbance by a conservation easement and one population may be deceased (Klett, personal communication, 2006). A recent population decline was detected in the fall of 2004, but neither correlative factors nor causation has yet been determined. By November 2004, Service personnel recognized the problem to be a widespread decline phenomenon that afflicted most subpopulations, with mortality exhibited among larger subpopulations across the range. To date, the Service has been unable to determine the cause of this mortality and investigative efforts continue. Threats Development of occupied tree cactus habitat remains the most significant threat to the long-term conservation of this species. Of the remaining seven populations of tree cactus, only three occur on protected public lands: one at the NKDR and two at Long Key State Recreation Area. The other four populations occur on private lands. Of those four on private lands. one is protected from disturbance by a conservation easement. The Service is coordinating jointly with Monroe County to secure the protection of these populations through review when development is proposed for these properties. Hurricanes also have the potential to adversely affect tree -cactus populations. Hurricane Georges hit Big Pine Key in October 1998 and caused severe damage to the tree -cactus population on the NKDR. Many of the larger cacti were damaged by high winds and adjacent vegetation. The long-term impacts of hurricanes on tree -cactus are difficult to predict, but because the number of locations where cacti occur has been reduced, the threat of hurricanes is significant. Recently, the 2005 hurricane season resulted in blow -down of portions of at least two additional plants that had otherwise survived the mortality pulse associated with the decline phenomenon. In both rases, windfall includes healthy cactus tissue (e.g., segments of branches) that is suspended in the foliage of adjacent plants (trees and shrubs). This windfall adds to the current stock of downed green tissue, however data indicates that suspended tissue rots in place. No Name Key - Extension oj'Veetrk Service past 38 Direct Effects - Upland and Wetland Habitats The proposed project will not directly impact native upland or wetland habitats on No Name Key. All proposed pole locations occur in disturbed, mowed and maintain road ROW's on Watson Boulevard as well as all secondary roads. No mangrove wetlands, salt marsh wetlands, hardwood hammock, or pine rockland habitats will be displaced by the proposed project It can be assumed that installation of a power pole will displace approximately four (4) square feet of disturbed roadside area per pole. Given the project includes a total of 62 poles, a total of 248 square feet of disturbed roadside area would be displaced by the proposed project. This amount of "habitat" loss constitutes a loss of 0.000005% of the total area of No Name Key (1,175 acre s = 51,193,205 sf). Best management practices will be employed during construction of the facility to ensure adverse secondary impacts do not occur to adjacent native habitats. These best management practices include installation of silt fencing where wetlands are located adjacent to a pole location and removal of all spoils resulting from pole installations offsite to an approved upland disposal facility. A limited amount of overhead lateral branch trimming will result from the proposed project to accommodate overhead electrical wires. This trimming will not displace native habitat and is consistent with current ROW management practices already occurring on public roads on No Name Key. Monroe County is responsible for maintaining the ROW's on No Name Key and routinely trims overhanging vegetation and line -of -sight triangles on the island. These activities involve trimming lateral branches of trees growing adjacent to roadways, and in implemented through Monroe County Public Works using tractor -mounted trimmers as well as hand equipment. Direct Effects - Threatened and Endangered Species Habitat Impacts Ka Deer The Key deer occur throughout the Lower Keys, including Upper Sugarloaf Key, Cudjoe Key and Summerland Key while the core population occurs on Big Pine and No Name Keys. Key deer habitat includes all habitat types including disturbed lands. On No Name Key, the Key deer herd is believed to be at or above carrying capacity, and the deer herd on the island is known for exhibiting signs of stress due to food and water limitation resulting from high population density. No Name Key - Fx&wion olVectrie Service Poge 39 The proposed project will not impact core habitats used by Key deer on No Name Key including pine rockland, hardwood hammock, freshwater wetlands, salt marsh wetlands or mangrove habitats. A total of 248 square feet of disturbed roadside would be displaced by the proposed project, representing a miniscule 0.000005% of the total area of No Name Key. This amount of "habitat" loss is insignificant and can be discounted. Therefore it is anticipated that the proposed project will have no measurable effect upon Key deer populations. No areas of known, occupied Lower Keys marsh rabbit habitat will be impacted by the proposed project, and no adverse direct or indirect impacts to the marsh rabbit or suitable, potential habitat are anticipated as a result of the proposed project. The Lower Keys marsh rabbit has not been documented to occur on No Name Key, although it does occur on Big Pine Key. Because no potential suitable habitat for the Lower Keys marsh rabbit will be impacted by the proposed project, and because the Lower Keys marsh rabbit is not known to occur on No Name Key, it is anticipated that the proposed project will have no measurable effect upon the Lower Keys marsh rabbit. No areas of known, occupied silver rice rat habitat will be impacted by the proposed project, and no adverse direct or indirect impacts to the marsh rabbit or suitable, potential habitat are anticipated as a result of the proposed project. The silver rice rat has not been documented to occur on No Name Key, but has been documented on Big Pine Key. Because no potential suitable habitat for the silver rice rat will be impacted by the proposed project, and because the silver rice rat is not known to occur on No Name Key, it is anticipated that the proposed project will have no measurable effect upon the silver rice rat. Similarly, because there is no designated Critical Habitat on No Name Key, none will be affected. Eastern /adleo Snaky The status of the Eastern Indigo snake is uncertain in the Lower Keys and No Name Key in particular. No documented records of this species on No Name Key have been reported in recent years, despite the presence of residents, tourists and NKDR staff traversing the island on a regular basis. The Eastern Indigo snake is a large animal requiring large areas of habitat, and it is unlikely that this species would occur on No Name Key and not have been detected. Even if a small number of these snakes occur on No Name Key, the proposed project will not impact core habitats used by the species including pine rockland, hardwood hammock, freshwater wetlands, salt marsh wetlands or mangrove habitats. A total of 248 square feet of disturbed roadside would be displaced by the proposed project, representing a miniscule 0.000005% of the total area of No Name Key. This amount of "habitat" No Name Key - Extension of Elecmc Service Page IO loss is insignificant and can be discounted. Therefore it is anticipated that the proposed project will have no measurable effect upon the Eastern indigo snake. The Stock Island tree snail occurs in hardwood hammocks throughout the Keys, potentially at 28 locations from Key West to Dade County. It is known that a small group of Stock Island tree snails were relocated onto No Name Key in the early 1990's but the current status of the species on No Name Key is not known. Even if the species does occur on No Name Key, there are 399 acres of high quality hardwood hammock on the Island and the proposed project will have no direct permanent impact on any of this habitat. There will be some limited trimming of lateral branches along existing roads, but the probability of limited trimming over such a small proportion of the total available habitat is insignificant and can be discounted. Therefore it is anticipated that the proposed project will have no measurable effect upon the Stock Island tree snail. Gerber's S»urge The status of Garber's spurge on No Name Key and the Lower Keys in general is poorly documented. It is known that this species may occur in pine rocklands, hardwood hammocks and disturbed habitats in the Keys, but information on the status of the species on No Name Key is lacking. As part of this assessment, each proposed pole location was carefully surveyed for the Garber's spurge based on surveyed locations established in the field by KEYS. The surveys were conducted in April and May, 2010. No Garber's spurge were identified within areas of proposed pole locations or immediately adjacent. Even if it were determined that Garber's spurge occurred on No Name Key, the proposed project will not impact core habitats used by the species including pine rockland and hardwood hammocks, and will have only miniscule impacts of the roadside "habitats" that could potentially support Garber's spurge. Roadside "habitat" on No Name Key includes the mowed, disturbed road shoulders of Watson Boulevard and all secondary roads. A total of 248 square feet of disturbed roadside would be displaced by the proposed project over a linear distance of approximately 15,000 fat. Assuming an average shoulder width of 10 feet (measured in several locations) along Watson and the secondary roads, approximately 300,000 square feet (6.9 acres) of roadside habitat is present on No Name Key. Thus, the proposed project will result in displacement of 248 square feet or roadside disturbed area representing a loss of 0.08°/o of this "habitat" type. This amount of potential "habitat" loss represents a miniscule amount of the total roadside area on area of No Name Key, and the potential loss of "habitat" is insignificant and can be discounted. Therefore it is anticipated that the proposed project will have no measurable effect upon Garber's spurge. No Name Key - Extension of Electric Sen-tee Par 41 Key 7'reo-cactus The Key tree -cactus is not known to occur on No Name Key. This species is a highly -conspicuous plant and if present, NKDR biologists would likely have discovered it by now. Even if it were present on the island, it would occur in hardwood hammock, and no hardwood hammock is being impacted by the proposed project. Because no potential suitable habitat for the Key tree -cactus will be impacted by the proposed project, and because the Key tree -cactus is not known to occur on No Name Key, it is anticipated that the proposed project will have no measurable effect upon the Key tree -cactus. Indirect Effects Indirect effects are those that are caused by the proposed action and are later in time (after the action is complete) but are still reasonably certain to occur. Examples may include changes to the ecosystem such as predator/prey relationships, long-term habitat changes, and anticipated changes in human activities (i.e., changes to land use as a result of the project). indirect effects for utility projects typically include changes in land use patterns in the vicinity of the project. For example, new utilities may result in significant changes to development patterns and as such may have the potential for indirect effects to listed species and their habitat, because the proposed action can potentially cause changes in land development. Potential adverse indirect effects for the proposed project may include the potential for increased development that may have an adverse impact on listed species or native habitats used by listed species. There is a concern that if electricity is provided to existing development on No Name Key, owners of vacant lots on No Name Key may have an increased desire to build due to the availability of commercial electricity. While we acknowledge that generally this is a concern, we believe that for No Name Key, this is not a valid issue. All development on No Name Key is regulated under the Big Pine Key -No Name Key Habitat Conservation Plan (HCP). In 1998, Monroe County, the Florida Department of Transportation, and the Florida Department of Community Affairs developed a partnership to develop the HCP to protect threatened and endangered species and obtain an incidental take permit (ITP) from the U.S. Fish and Wildlife Service (Service) pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (87 Stat. 884; 16 U.S.C. 1531 etseq.). Covering an area of approximately 7,000 acres, the Big Pine Key -No Name Key HCP will implement an important conservation strategy that protects the habitat of federally listed species including the endangered Key deer (Odocoileus virginfamis c/avitrm), endangered Lower Keys marsh rabbit (Sylvilagns pahistris hefheri), and threatened eastern indigo snake (Drymarchon corals couperi). The HCP also allows limited residential, No Name Key - Earlensloa 0j.Electric service Pae 42 commercial, recreational, and municipal development, including approximately 200 homes. In total, no more than 168 acres (approximately 2.4 percent of the planning area) of development is anticipated over a 20-year period. The HCP will aid in the recovery of listed species on Big Pine and No Name Keys because it directs development toward areas that have been already impacted and away from listed species habitat. It includes conservation measures to protect Key deer movement corridors and provide habitat mitigation at a 3:1 ratio. The acquisition and restoration of 504 acres of high quality habitat will maintain the deer population and benefit the eastern indigo make. In addition, development will be excluded from Lower Keys marsh rabbit habitat, and a public education program will be implemented to address threats posed by free -roaming pets. The Service prepared an Environmental Assessment (EA) for this ITP request. A Notice of Availability was published in the Federal Register from May 23, 2005, through July 22, 2005 notifying the public of the availability of the HCP and EA for review and comments. The Service received nine requests for documents and ten sets of comments on this ITP application during the comment period. On June 9, 2006, the Service approved the HCP and issued the ITP. The HCP adequately protect listed species and their habitats on No Name Key and alleviates any concern that rampant development may result from the availability of commercial power on the island. The HCP does not specify which properties will be permitted or when, but the likelihood of future development occurring on No Name Key is negligible. The HCP (page 58) lists one of the primary, measurable goals of the HCP as ensuring that future development does not have a negative impact on covered species habitat. The HCP restricts the loss of native habitat caused by development activities over the permit period (20 years) to no more than 7 acres in current privately -owned native habitat areas on both No Name and Big Pine Keys. Land development regulations will direct development activities to areas of low habitat quality using the Tier System. No more than two (2) percent of the total H impact over 20 years will be allowed in vacant (privately owned) Tier 1 areas (H - 0.022). All of No Name Key is listed as Tier I habitat, the most restrictive category. Furthermore, the ITP (Page 3) states that new residential development in Tier I areas will be limited to no more than five (5) percent of all residential units permitted over the 20-year life span of the HCP which amounts to a maximum of 10 residential units in Tier I areas on both No Name and Big Pine Keys. Monroe County has approved three allocations in Tier I based on the most recent information available in the Fourth Annual HCP report. This leaves a total of seven (7) Tier I allocations remaining under the life span of the HCP. In a worse -case scenario, all seven of these permits could go to Tier l properties located on No Name Key over the remaining life span of the HCP. While this is extremely unlikely, it is theoretically possible. However, by theterms of the HCP and ITP, this level of development would be considered acceptable assuming Monroe County continues to abide by the terms of the HCP and maintain adequate mitigation and habitat management programs. Based on the No Nance Key - Extension of Electric Service Fourth Annual report from Monroe County to the Service dated April 28, 2010, permitted development activities and required management actions are in compliance with the terms of the HCP and ITP. Beneficial Indirect Effects There are potential beneficial indirect effects on the environment of No Name Key as a result of extension of electric service to the island. There are environmental disadvantages to off -grid solar electric systems that greatly influence the health, safety and welfare of all inhabitants of No Name Key, including the people and native species. The limitations inherent to off -grid solar systems include the following: storing energy in large lead/acid battery banks; daily use of large diesel and gasoline powered generators; large fuel storage tanks at residences; and inability to send excess solar energy back to the electrical grid. Batteries: With off -grid solar, energy must be stored in a large bank of lead/acid batteries which generate toxic fumes. Most lay persons don't realize that that their automobile and truck batteries are constantly giving off toxic fumes. Our battery banks are located under our homes, and even though they are kept in ventilated areas it is reasonable to assume there is potential for human health impact. Additionally, batteries are about 90% efficient as a storage resource. With grid tie solar electricity on No Name Key the grid, at 100% storage efficiency, becomes the storage facility minimizing or eliminating toxic fumes which have potential to harm animals, plants, and humans. Generators: Energy requirements of households often exceed the abilities of an off -grid electrical system, especially in the summer when air conditioning in needed, at night, or on rainylovercast days. In the summer, many of the off - grid systems of No Name Key use generators on a daily basis (4-8+ hours a day) to supplement battery power. Some households even run generators 24 hours a day. Daily generator noise has many documented environmental impacts including; noise pollution, toxic air emissions and carbon dioxide (greenhouse gas) emissions. All of these are hazardous to the health, safety and welfare of people and the environment. Noise Pollution: Generators cause significant noise pollution. Noise pollution is known to have adverse effects on humans and animals. It has been documented that noise pollution can increase blood pressure, cardiac issues, cause hearing loss, as well as gastric disorders. Noise pollution causes adverse concerns for birds relying on hearing to locate prey, disturbs feeding and breeding patterns of many animals, and has been cited as a contributing factor in the extinction of some species. Noise pollution also has been shown to have adverse effects on the growth of some plants. Air Pollution: USFWS, the U S Environmental Protection Agency and other federal, state and local agencies responsible for protecting the environment have adapted policies relating to addressing the issue of climate change. Diesel and gas generators emit large quantities of carbon dioxide emissions, a primary ingredient in the climate No Name Key - Extension of Eleca le Semiee Pop 44 change issue. Many residents on No Name Key presently expend as much as 500 gallons of diesel fuel a month in the summer, potentially emitting five tons of CO- a month. There are numerous other toxic air emissions that pollute the No Name Key environment. These include nitrogen oxides, carbon monoxide and particulate matter. All of these chemicals are regulated by the US EPA and have been shown to be extremely hazardous to human health. The addition of grid tie solar electricity would eliminate generators, thus eliminating all the noise pollution and air pollutants that impact the air, ground, and water.2 The only viable solution to the untenable impact of pollution on No Name Key and one that would provide a sustainable solution and improvement in the environment of the island is for grid intertie. This essentially means that current solar systems, developed over time by residents, be linked to KEYS grid electricity for the advantage of all life on the island, and to include the many visitors who enjoy visiting the wildlife preserve. Off -grid solar energy that is not used is wasted. A technologically efficient grid intertie system which is possible with commercial electricity allows the energy created by solar to truly become sustainable. Grid tie would insure cleaner air, eliminate noise, and chemical pollution. There would be no need for individual householders to store their power production in lead/acid batteries. Power would not be wasted, in that KEYS would constantly be receiving and using unused solar energy for the benefit of all of Monroe County. There would be no further daily use of generator produced electricity. Cumulative Effects Cumulative effects are those effects of future state, local, or private activities not involving federal activities that are reasonably certain to occur within the action area of the federal action subject to consultation. A cumulative effect is an "impact on the environment which results from the incremental effect of the action when added to other past. present, and reasonably foreseeable future actions." Cumulative effects can result from individually minor but col lectively significant actions taking place over time. Adverse cumulative effects associated with the proposed action are presumed negligible; it is highly unlikely that any non -Federal, future state or private development projects are reasonably certain to occur on No Name Key. No Name Key has long been the target of conservation efforts by local, state and federal agencies, and the majority of sensitive habitat on the island are protected either through acquisition as refuge lands or through stringent growth management controls including the Monroe County Comprehensive Plan and the USFWS Habitat Conservation Plan. As described previously, the likelihood of significant development occurring on No Name Key in any form is highly unlikely, and any future development that may be proposed would fall under the auspices of the Monroe County Comprehensive Plan and the USFWS Habitat Conservation Plan. For these reasons, adverse cumulative effects within the action area are negligible and can be discounted. No Name Key - Extension of Electric &?vlce Interdependent and Interrelated Effects ""•idi;ID Interdependent and interrelated actions are separate actions that would have no purpose if it were not for the specific proposed project, such as to support the project. For example, in the case of a new residential development an access road and power line may be needed. An interrelated activity is an activity that is part of the proposed action and depends on the proposed action for its justification. Interrelated actions are typically "associated with" the proposed action. The main concern related to interdependent and interrelated effects of the proposed electrification of No Name Key would appear to the threat of future development (e.g, residential development) that could result from the availability of commercial power on the island. Using guidance from the USFWS Section 7 Handbook, we would apply the "but for" test which poses the question if another activity (e.g. future development) would not occur but for the proposed extension of commercial electricity to No Name Key. We believe that because of aggressive conservation measures in place on No Name Key including land protection and regulation, future development is not likely to occur as a result of the proposed project. Thus, future development on No Name Key is not interrelated and interdependent with the proposed project and as such should be not be analyzed with the effects of the action. Adverse interdependent and interrelated effects resulting from the proposed project are not anticipated. No other activities, additional projects or ancillary activities are anticipated to result "but for" the proposed project, therefore no interdependent and interrelated effects will result from the proposed project. - Avoidance, minimization, and conservation measures are intended to minimize or avoid environmental impacts to listed species or critical habitat. The proposed project has been designed to avoid and minimize impacts to native habitats and threatened and endangered species to the maximum extent practical while still accomplishing the objective of the project. The following actions have been incorporated into the proposed project to further avoid and minimize and potential adverse impacts to threatened or endangered species: • All areas of native habitat will be avoided. There will be no direct loss of any native habitat as a direct result of the proposed project. Lateral trimming of tree branches will be conducted initially and as part of long-term maintenance, but these trimming activities are minor and will not result in any measurable loss of habitat. • Construction of the project will implement best management practices to ensure that no secondary impacts to native wetland or upland habitats will occur. In areas near wetlands. a siltation barrier will be No Name Key - Extension of 6tectric Service installed to delineate the work area and prevent siltation. All spoils from pole installation will be captured and removed offsite. • Concrete power poles will be utilized instead of traditional CCA-treated wood poles. Concrete is inert and has no impact on the environment relative to the CCA-treated poles which can leach toxic metals including copper and arsenic. • All construction personnel will be informed of the potential presence of threatened and endangered wildlife in the project limits. Construction personnel will be directed to avoid contact with any wildlife, and to cease all project work if a Key deer or other wildlife species is observed within the project limits until such time as the animal is documented as leaving the work area. Once the animal has been confirmed to be absent from the work area, construction may continue. e All construction will abide by the "Standard Protection Measures for Eastern Indigo Snake" guidelines prepared by the USFWS. Best Management Practices for sediment and erosion control will be employed to protect sensitive habitats adjacent to the project. The results of literature reviews, interviews with species experts, and on -site surveys regarding potential impacts of the proposed project on the key deer, Lower Keys marsh rabbit, silver rice rat or the Eastern indigo snake are likely insignificant and/or discountable. The total area of potential, suitable habitat being impacted is insignificant in relation to the total available habitat for these species in the Lower Keys. Additionally, avoidance, minimization and mitigation measures have been incorporated into the project that further reduce the likelihood of measurable impacts on threatened or endangered species. Impacts to silver rice rat critical habitat are also minimal, and occur in small fragmented areas adjacent to existing roadways. In addition, the proposed mitigation plan will onset any potential adverse impacts to critical habitat, and result in an overall increase in the amount of critical habitat available to the species. The following effect determinations are established for the proposed project: • The proposed project is considered not likely to jeopardize the continued existence of the Key deer, Lower Keys marsh rabbit, silver rice rat, Eastern indigo snake, Stock Island tree snail, Garber's spurge or Key tree cactus, or any other federally -listed species. No Name Key - Extension of Rectric Service • The proposed action may effect; but is not likely to adversely affect the Key deer, Lower Keys marsh rabbit, silver rice rat, Eastern indigo snake, Stock Island tree snail, Garber's spurge or Key tree cactus, or any other federally4isted species. • The proposed action may ajj°ect, but wnuld not likely adversely modify designated critical habitatfor the silver rice rat, or any other federally -listed species. . Bashore, T.L. and E.D. Bellis. 1982. Deer on Pennsylvania Airfields: Problems and Means of Control. Journal of Wildlife Management 10: 386-88 Braden, A.W. 2005. Evaluation of the effects of a highway improvement project on Key deer. Master's Thesis. Texas A&M University, College Station, Texas. Carlson, P.C, G.W. Tanner, J.M. Wood, and S.R. Humphrey.1993. Fire in Key deer habitat improves browse, prevents succession, and preserves endemic herbs. Journal of Wildlife Management 57(4):914-928. Drummond, F. 1989. Factors influencing road mortality of Key deer. M.S. Thesis. Southern Illinois University; Carbondale, Illinois. Ellsworth, D.L., R.L. Honeycutt, N.J. Silvy, M.H. Smith, J.W. Bickham, and W.D. Klimstra. 1994. White-tailed deer restoration to the southeastern United States: evaluating genetic variation. Journal of Wildlife Management 58(4):686-697. Faulhaber, C. A. 2003. Updated Distribution and Reintroduction of the Lower Keys Marsh Rabbit. Masters Thesis, Texas A & M University, College Station, Texas. Folk, M.J. 1991. Habitat of the Key deer. PhD. Dissertation. Southern Illinois University, Carbondale, Illinois. Folk, M.J. and W.D. Klimstra. 1991a. Antlers of white-tailed deer (Odocoileus virginianits) from insular and mainland Florida. Florida Field Naturalist 19:97-105. Folk, M.J. and W.D. Klimstra. 1991b. Reproductive performance of female Key deer. Journal of Wildlife Management 55:386-390. No Name Key - Extension of Electric Service Pop 411 Folk, M.J. and W.D. Klimstra. 1991c. Urbanization and Naturalization of the Key deer (Odocoileus virginianus clavium). Florida Field Naturalist. 19(1): 1-9. Folk, M.L., W.D. Klimstra, and C.R. Kruer. 1991. Habitat evaluation: National Key deer range. Final report, Program Project No. NG88-015. Florida Game and Fresh Water Fish Commission Nongame Wildlife Program; Tallahassee, Florida. Forys, E.A., P.A. Frank, and R.S. Kautz. 1996. Recovery actions for the Lower Keys marsh rabbit, silver rice rat, and Stock Island tree snail. Cooperative Agreement No. 1448-0004-94- 9164, Final Report to Florida Game and Freshwater Fish Commission, Tallahassee, Florida, USA. Hardin, J.W., N.J. Silvy, and W.D. Klimstra. 1976. Group size and composition of the Florida Key deer. Journal of Wildlife Management 40:454-463. Hardin, J.W., W.D. Klimstra, and N.J. Silvy. 1984. Florida Keys. Pages 381-390 in L.K. Halls, editor. White-tailed deer: ecology and management. Stackpole Books; Harrisburg, Pennsylvania. Harveson, P.M., R.R. Lopez, N.J. Silvy, and P.A. Frank. 2004. Source -sink dynamics of Florida Key deer on Big Pine Key, Florida. Journal of Wildlife Management 68(4):909-915. Jacobson, B.N. 1974. Effects of drinking water on habitat utilization by Key deer. M.S. research paper. Southern Illinois University; Carbondale, Illinois. Klimstra, W.D. 1986. Controlled burning in habitat management: some observations, National Key Deer Refuge. Final Report; Big Pine Key, Florida. Klimstra, W.D. 1992. Key deer. Pages 201-215 in S.R. Humphrey, editor. Rare and endangered biota of Florida, volume 1: mammals. University Press of Florida; Gainesville, Florida. Klimstra, W.D. and A. Dooley. 1990. Foods of the Key deer. Florida Scientist 53:264-273. Klimstra, W.D., J.W. Hardin, N.J. Silvy, B.N. Jacobson, and V.A. Terpening. 1974. Key deer investigations final report: December 1967-June 1973. U.S. Fish and Wildlife Service; Big Pine Key, Florida. Klimstra, W.D., J.W. Hardin, and N.J. Silvy. 1978a. Endangered Key deer. Pages 15-17 in J.N. Layne, editor. Rare and endangered biota of Florida, volume 1: mammals. University Presses of Florida; Gainesville, Florida. No Nance Key - Extension oj'£lecrric Service Page 14 Krausman, P.R., M.C. Wallace, M.E. Weisenberger, D.W. DeYoung, and O.E. Maugen. 1993. Aircraft Noise Effects on Captive Desert Mule Deer. ASA 125`h Meeting. (http:fl sound. Media.mit.edu/—dpwe/AUDITORY/). Ottawa, Ontario. Lopez, R.R. 2001. Population ecology of Florida Key deer. Ph.D. Dissertation. Texas A&M University, College Station, Texas. Lopez, R.R. 2004a. Florida Key deer (Odocoileta virginianus clavium). Effects of urban development and road mortality. Pages 450-458. In: H.R. Akcakaya et al. editors. Species conservation and management: case studies. Oxford University Press, Oxford, England. Lopez, R.R., Harveson, P.M., Peterson, M.N., Silvy, N.J., Frank, P.A., 2005. From the field: changes in ranges of Florida Key deer — does population density matter? Wildlife Society Bulletin 33, 343-348. Lopez, R. R., and N. J. Silvy. 1999. Use of infrared -triggered cameras and monitors in aquatic environments. Proceedings of the Annual Conference of Southeastern Association of Fish and Wildlife Agencies. 53:200-203. Lopez, R. R., N. J. Silvy, B. L. Pierce, P. A. Frank, M. T. Wilson, and K. M. Burke. 2004. Population density of the endangered Florida Key deer. Journal of Wildlife Management. 68:570-575. Lopez, R.R, M.P. Vieira, N.J. Silvy, P.A. Frank, S.W. Whisenant, and D.A. Jones. 2003a. Survival, mortality, and life expectancy of Florida Key deer. Journal of Wildlife Management 67(1):34-45. Lopez, R.R., N.J. Silvy, R.N. Wilkens, P.A. Frank, M.J. Peterson, and M.N. Peterson. 2004b. Habitat -use patterns of Florida Key deer: implications of urban development. Journal of Wildlife Management 68(4):900-908. Monroe County, Florida Department of Transportation, and Florida Department of Community Affairs. 2005. Habitat Conservation Plan for Florida Key Deer (Odocoileus virginianits clavium) and other Protected Species on Big Pine Key and No Name Key, Monroe County, Florida. Nettles, V.F., C.F. Quist, R.R. Lopez, T.J. Wilmers, P. Frank, W. Roberts, S. Chitwood, and W. R. Davidson. 2002. Morbidity and mortality factors in Key deer, Odocodells virginiamcs clavium. Journal of Wildlife Diseases. 38:685-692. No Name Key - Extension of Electric Service Page $0 Perry, N. D. 2006. Lower Keys Marsh Rabbit and Silver Rice Rat: Steps Towards Recovery. Masters Thesis, Texas A & M University, College Station, Texas. Peterson, M. N., R. R. Lopez, P. A. Frank, M. J. Peterson, and N. J. Silvy. 2003. Evaluating capture methods for urban white-tailed deer. Wildlife Society Bulletin. 31:1176-1187. Peterson, M.N., R.R. Lopez, P.A. Frank, B.A. Porter, and N.J. Silvy. 2004. Key deer fawn response to urbanization: is sustainable development possible? Wildlife Society Bulletin 32(2):493-499. U.S. Fish and Wildlife Service. 1967. Native Fish and Wildlife, Endangered Species. Federal Register 32:4001 U.S. Fish and Wildlife Service (Service). 1993. Final rule: designation of critical habitat for the silver rice rat. Federal Register 58(167):46030-46034. U.S. Fish and Wildlife Service. 1997. Biological opinion on Federal Emergency Management Agency's administration of the National Flood Insurance Program in Monroe County, Florida. Atlanta, Georgia. U.S. Fish and Wildlife Service. 1999. South Florida multi -species recovery plan. Atlanta, Georgia. U.S. Fish and Wildlife Service. 2001a. Biological Opinion based on review of the Florida Department of Transportation's proposal to install a northbound travel lane on U.S.1 on Big Pine Key, Monroe County, Florida and its effects on the Key deer (Odocoileus virginianus clavium). Service Log No. 4-1-01-253. Vero Beach, Florida. U.S. Fish and Wildlife Service. 2001b. Biological Opinion based on review of the Florida Department of Transportation's proposal to install wildlife undercrossings on U.S. 1 on Big Pine Key, Monroe County, Florida and its effects on the Key deer (Odocoileus virginianus clavium) and Lower Keys marsh rabbit (Sylvilagus palustris hefneri). Service Log No. 4-1-98-F-777. Vero Beach, Florida. U.S. Fish and Wildlife Service. 2003. Amendment to the June 16, 1997, biological opinion on the effects of the Federal Emergency Management Agency's continued administration of the National Flood Insurance Program in Monroe County, Florida. Atlanta, Georgia. No Name Key - Extension of Electric Service U.S. Fish and Wildlife Service [Service]. 2W7. Biological Opinion, Department of the Navy, Restoration of Clear Zones and Stormwater Drainage System, U.S. Fish and Wildlife Service, Vero Beach, Florida. U.S. Fish and Wildlife Service [Service]. 2008. Biological Opinion, Big Pine Key Park marina Basin Fill, U.S. Fish and Wildlife Service, Vero Beach, Florida. No Name Key • Extension of Electric SenIcv Figure 1. Location of No Name Key adjacent to Big Pine key, Monroe County. No Nance Key - &Wuion of0eadc Service Habitat Types No Name Key, Monroe County, Florida Date: Monroe County Growth Management 1 1 '! Figure 2. Habitat types on No Name Key. Source: Monroe County Environmental Resource Department. No Nome Key - Cuoem on of EkcWv Service Property Ownership Patterns NoName Key,Monroe • Florida Data: Monroe County Property Appraiser May 2010 Private Ownership (DevebW and Undeveloped) 181 e; 301.31 scree: 26% Private Ownership Public ownership (County, state, Federal) 338 parewle; 874 acres; 74 % Public Ownsaft Figure 3. Property ownership patterns on No Name Key as of May, 2010. Source: Monroe County Property Appraiser. CAI - *"PtQ, in ...... s---- UnitedStates Departmentof the Intexior _con vao j i r ', , :,a . _ J 1 1 . n"- �:fl • rr::- •^ Sri :,. ';� r �, 1 �' . �' •: 1 . .i. !..., Ifyou my Iftwop af Tom G=W at (561) 562. 3909. FWS, Big r. comfy. KM FL Monroe DIVANOn OfGAMOA Ronds DVu=ow of Coannunity. . FGPC, Musthon. D1TERLOCAL AGREEMENT SECOND AMENDMENT FOR THE (EXPANDED) CUDJOE REGIONAL WASTEWATER SYSTEM INCLUDING BIG PINE KEY, RAMROD KEY SUMMERLAND KEY, CUDJOE KEY, THE TORCH KEYS (LITTLE, MIDDLE AND BIG), AND UPPER AND LOWER SUGARLOAF KEYS THIS AMENDMENT TO INTERLOCAL AGREEMENT is entered into the 3`d day of August, 2009, pursuant to Sec. 163.01, FS, by and between Monroe County, a political subdivision of the State of Florida, (County), and the Florida Keys Aqueduct Authority, Inc., an independent special district, (FKAA). WHEREAS, on September 20, 2006, the parties entered into an interlocal agreement (ILA) for the purpose of funding the costs associated with the administration, planning and development of a regional wastewater project; and WHEREAS, on April 16, 2008 the County approved an amendment to the ILA to expand the areas encompassed in the Cudjoe Regional wastewater System, which amendment was approved by FKAA on April 24, 2008; and WHEREAS, it has been determined that there are a high proportion of properties in the area of the Cudjoe Regional Wastewater System which are not slated for centralized sewer but which will have to upgrade their onsite sewage treatment and disposal systems (OSTDS) at a similar per EDU cost as the centralized system; and WHEREAS, it has been determined that it is equitable to include the OSTDS in the Cudjoe Regional area in the overall project to enable the FKAA to enter into maintenance installation and mainte agreements and to allow the same degree of subsidization to those costly projects which are to a par with centralized system EDU costs; now, therefore IN CONSIDERATION of the mutual consideration and promises set forth below, the parties agree as follows: 1. Paragraph 2, Project, of the Inter -local Agreement (11 A) dated September 20, 2006, for the Summerland/Cudjoe/Upper Sugarloaf Regional Wastewater System, as previously amended on April 16, 2008, shall be amended as follows: The Project shall be called the Cudjoe Regional Wastewater System and consist of centralized collection systems, transmission mains and method of treatment to Advanced Wastewater Treatment standards sufficient to serve the needs of the residents and businesses included for centralized systems in the Master Wastewater Plan in the Wastewater Service Districts from Big Pine Key through Lower Sugarloaf Key, and Onsite Sewage Treatment And Disposal Systems for which owners of properties not in the Master Plan but located in the Cudjoe Regional area from No Name Key through Lower Sugarloaf Key, plus Boca Chica Key parcels identified as RE# 122880-000000,122890-000000, and 122870-000000 , contract with FKAA for installation and maintenance. The Project may be developed in phases in accordance with availability of funding. Both FKAA and County shall perform their respective obligations under the interlocal agreement dated September 6, 2005. 2. All other provisions of the MA dated September 20, 2006, for the Summerland/Cudjoe/Upper Sugarloaf Regional Wastewater System, as previously amended, not inconsistent herewith shall remain in full force and effect. 3. This Agreement will take effect on the 3rd day of August, 2009. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. FLORIDA KEYS A UE AUTHORITY KEY WEST, BY: Jame C eyn ecutive Director .. /—/ (/ /v DA 4.% ATTEST: BY: P'4�� e DATE APPROVED AS TO FORM AND LEGAL SUFFICIENCY BY: kirk C. e FKAA eral Counsel Y BOARD OF COUNTY COMMISSIONERS OF MONROE COU FLORIDA BY: v v Mayor Sylvia J. Murphy g��cQ A UG 3 2009 D C, AUG DATE APPROVED AS TO FORM BY: A. Hutton County Attorney Date: rn BOARD OF COUNTY COMMISSIONERS OF MONROE COU FLORIDA BY: v v Mayor Sylvia J. Murphy g��cQ A UG 3 2009 D C, AUG DATE APPROVED AS TO FORM BY: A. Hutton County Attorney Date: rn ,T r a n N O ;a m rn o United States Department of the Interior FISH AND WILDLIFE SERVICE South Florida Ecological Services Office I339 20 Street Vero Beach, Florida 32960 October 15, 2010 Dale Finigan Keys Energy Services 1001 James Street Post Office Box 6100 Key West, Florida 33040-6100 Service Federal Activity Code: Date Received: Project: County: Dear Mr. Finigan: 41420-2009-TA-0539 August 12, 2010 No Name Key Extension of Electrical Service Monroe The Fish and Wildlife Service (Service) has reviewed your biological assessment and letter dated, July 9, 2010 and August 11, 2010, respectively, and other information submitted by the Keys Energy Services (KES), on behalf of various property owners on No Name Key, for the project referenced above. We understand Monroe County (County) has advised KES the project requires our review in accordance with the Big Pine Key Habitat Conservation Plan (HCP). PROJECT DESCRIPTION According to your documents, KES is proposing to extend electrical services to No Name Key, Monroe County, Florida, via overhead power lines. The project would include 61 concrete utility poles and an electrical system line placed within existing right of way (ROW) owned by the County or private land. Placement of power poles will occur largely on existing scarified ROW and will be set back 6 feet from roadways. No clearing of native vegetation will occur as a result of the proposed project; however minimal trimming of overhead tree limbs may occur during initial system installation. No ancillary facilities will be developed on No Name Key. This design would be able to provide power for up to 43 potential residential customers and a single commercial customer. However, Monroe County has stated no new developments are anticipated on No Name Key as a result of this additional electricity. THREATENED AND ENDANGERED SPECIES In your Biological Assessment, KES has determined the project may affect, but is not likely to adversely affect, the endangered Key deer (Odocoileus virginianus clavium), endangered Lower Keys marsh rabbit (Sylvilagus palustris hefnen), endangered silver rice rat (Oryzomys palustris natator), threatened eastern indigo snake (Drymarchon corals couperi), threatened Stock Island tree snail (Orthalkw reses), endangered Key tree cactus (Pilosocereus robiniz) and threatened TAKE PRIDE® INAMERICA Dale Finigan Page 2 Garber's spurge (Chamaesyce garberi). In addition, KES has made a determination the project may affect, but is not likely to adversely affect designated critical habitat for the silver rice rat. During an August 4, 2010, site visit to No Name Key, KES and Service staff discussed a number of avoidance and minimization measures that will be implemented throughout construction and long-term maintenance to further reduce the proposed project's impact on listed species, as follows: I. Poles will be placed near paved roads to avoid and minimize disturbance to native habitats. 2. The project was designed to allow for flexibility in pole placement. The distance between poles was extended to the maximum practical amount in order to reduce total pole count. In addition, pole locations in all areas (except corner poles) are flexible to allow the individual poles to be placed so as to avoid the permanent removal of native vegetation and minimize trimming. 3. This flexibility will greatly reduce potential impacts to Garber's spurge, which has been documented along the roadsides of Old State Road 4A as recently as 2008. Surveys conducted by KES in April and May 2010 did not locate the plant on at each proposed pole location or in the immediate vicinity of each pole. However, even at the time of installation KES has agreed to reposition the pole locations in order to avoid the species should it be encountered. Therefore the avoidance measures detailed in the Garber's Spurge Protection Plan (see attached) will be conducted by a qualified biologist during system installation and all pole maintenance. If the plant is encountered, the pole will be repositioned. 4. The poles that will be employed are taller than normal residential poles thereby allowing power line placement to occur above the vegetation. Pole heights of 45 feet will be used to minimize initial and yearly re -occurring tree trimming. 5. No vegetative trimming will be conducted until all poles are placed and the power lines are strung. This will allow KES to trim only those branches that will actually obstruct the power lines, thereby minimizing vegetation removal to the maximum extent. 6. The only self-sustaining population of the Stock Island tree snail with long-term viability in the Lower Florida Keys is located in the hardwood hammock south of Old State Road 4A on the eastern side of No Name Key, and may occur on trees within the ROW. Therefore the avoidance measures detailed in the Stock Island Tree Snail Protection Plan (see attached) will be conducted by a qualified biologist, during system installation and all pole maintenance. 7. Poles will only be placed at residences that have requested power, thereby reducing the scope of the overall project. 8. High strength concrete poles, storm -rated at 148 MPH, will be employed to reduce replacement intervals and subsequent maintenance. 9. Best management practices for construction impacts will be implemented, including placement of silt fence around all pole location area, removal of all spoils off -site, securing trash, and minimal staging of construction equipment and supplies. Dale Finigan Page 3 10. KES will conduct pre -construction training with all contractors and YES staff working on the project regarding the presence of listed species. Training will be provided by a qualified biologist familiar with lower keys wildlife and environmental regulations. 11. Standard Protection Measures for the Eastern Indigo Snake (see attached) will be implemented during construction activities. 12. Best management practices will be implemented to prohibit feeding of key deer either intentionally or unintentionally by work crews during construction activities and lunch breaks, as well as traffic control measures to avoid deer -vehicle collisions during construction activities. Based on the best currently available scientific and commercial information, as well as the avoidance and minimization measures outlined above and within the biological assessment, the Service concurs with your view that the proposed extension of electrical service to No Name Key is not likely to adversely affect the Key deer, Lower Keys marsh rabbit, silver rice rat, eastern indigo snake, Stock Island tree snail, Key tree cactus, or Garber's spurge and formal consultation is not required. Reinitiation of consultation may be necessary if: (1) modifications are made to the project; (2) additional information involving potential effects to listed species becomes available; or (3) a new species is listed, or if critical habitat is designated that may be affected by the project. Thank you for your cooperation in the effort to protect federally listed species. If you have any questions regarding this project, please contact Mark Salvato at 772-562-3909, extension 340. Field Supervisor South Florida Ecological Services Office Enclosures cc: w/o enclosures (electronic only) Florida Keys Aqueduct Authority, Key West, Florida (Jim Reynolds) Monroe County Government, Key West, Florida (Roman Gastesi, Suzanne Hutton, Mark Rosch) Service, Washington, DC (Katie Niemi) Service, Big Pine Key, Florida (Anne Morkill) Service, Atlanta, Georgia (Cynthia Bohn) FDCA, Tallahassee, Florida (Rebecca Jetton) STANDARD PROTECTION MEASURES FOR THE EASTERN INDIGO SNAKE 1. An eastern indigo snake protection/education plan shall be developed by the applicant or requestor for all construction personnel to follow. The plan shall be provided to the Service for review and approval at least 30 days prior to any clearing activities. The educational materials for the plan may consist of a combination of posters, videos, pamphlets, and lectures (e.g., an observer trained to identify eastern indigo snakes could use the protection/education plan to instruct construction personnel before any clearing activities occur). Informational signs should be posted throughout the construction site and along any proposed access road to contain the following information: a. a description of the eastern indigo snake, its habits, and protection under Federal Law; b. instructions not to injure, harm, harass or kill this species; C. directions to cease clearing activities and allow the eastern indigo snake sufficient time to move away from the site on its own before resuming clearing; and, d. telephone numbers of pertinent agencies to be contacted if a dead eastern indigo snake is encountered. The dead specimen should be thoroughly soaked in water and then frozen. 2. If not currently authorized through an Incidental Take Statement in association with a Biological Opinion, only individuals who have been either authorized by a section 10(a)(1)(A) permit issued by the Service, or by the State of Florida through the Florida Fish Wildlife Conservation Commission (FWC) for such activities, are permitted to come in contact with an eastern indigo snake_ 3. An eastern indigo snake monitoring report must be submitted to the appropriate Florida Field Office within 50 days of the conclusion of clearing phases. The report should be submitted whether or not eastern indigo snakes are observed. The report should contain the following information: a. any sightings of eastern indigo snakes and b. other obligations required by the Florida Fish and Wildlife Conservation Commission, as stipulated in the permit. Revised February 12, 2004 ! 1 1 1.. 1 1 -1 !' 1 �'. 1 ! No Name eyy, roe County UT-TITirmwr Tortuga32731 No Name Key, Florida Dc r Boulevard1241 Crane Sugarloaf r 1 " If 1 r; terrama E@bellsouth.net August 9, 2010 Introduction The Stock Island Tree snail (Orthalicus reins yeses) is a Federally listed Endangered mollusk that occurs throughout the Florida Keys. A population of this snail was introduced onto No Name Key in 1996 from Key Largo, and that population may persist in areas of hardwood hammock. Garber's spurge (Chamaesyce garberi) is a small plant also Federally -listed as Endangered that occurs throughout South Florida, and occurs in pine rocklands, hardwood hammocks and also on disturbed roadsides. It is known to occur on No Name Key where it occurs on the limestone road shoulders. Keys Energy Services (KEYS) is installing electrical power to No Name Key using concrete power poles and overhead electric lines. The proposed project consists of extending existing electrical service from Big Pine Key to No Name Key, where no electrical service currently exists. The project will employ a total of 61. utility poles located within existing right of way (ROW) owned by Monroe County or on private property. Power poles will be placed in the ROW within six feet of the edge of existing roadway pavement using an auger truck and Iif. Trimming of tree branches will be required for the initial installation of the system and ongoing trimming will be required to maintain the system in perpetuity. KEYS will implement measures specifically designed to avoid impacts to the Stock Island tree snail and Garbees spurge during the initial installation of the system as well as during the long-term maintenance phase of the project. Stock Island Tree ftgLBdgS&tion Proced res The Stock Island Tree snail may occur on lateral branches and tree trunks that may require trimming during initial installation of the system as well as during ongoing maintenance. The following procedures will be implemented by KEYS during all tree trimming activities throughout the life of the project. These procedures follow the procedures established by Deborah A. Shaw, Ph.D., Environmental Affairs Manager for the Florida Keys Electric Cooperative and are based on many years of experience relocating tree snails associated with the power distribution system on Key Largo. General Requirements All staff conducting tree trimming activities will be provided a copy of this protocol and be instructed on tree trimming procedures on No Name Key by a qualified biologist. A qualified biologist is someone with the appropriate combination of education and training that makes them competent to direct trimming in a manner that avoids adverse impacts to tree snails. A qualified biologist will have direct experience in the handling and relocation of tree snails in South Florida. All tree snails associated with the project will be relocated including members of the genus Orthalicus and Liguus. All limbs will be out using hand-held trimming equipment such as a chain saw, power pruner or hand - operated Toppers. No trimming using mechanized equipment is authorized. Equipment Needed High -quality toppers, cooler with sealed lid; clean spray bottle (plant mister type); source of fresh, clean water, paper towels; plant clippers, bucket to carry snails. Relocation Procedures Tree branches will be trimmed and placed on the ground for inspection by a qualified biologist. Each branch will be carefully inspected for tree snails, and any snails identified will be relocated. No tree branches will be removed off -site or chipped until approved by the qualified biologist. The qualified biologist will work directly with KEYS during trimming operations to ensure any tree snails are relocated properly. Tree snails identified during tree trimming operations will be in one of three conditions: 1) sealed on a branch, aestivating during dry and/or cold weather; 2) aestivating but detached from branch with protective seal broken; 3) active and moving about, normally in warn, wet weather, Procedures for the three scenarios are discussed below. Snails sealed on a branch or tree trunk: As long as the protective seal is intact, the snail can be left on the branch for relocation. CIip the branch with the snail attached. Trim extra twigs and leaves off of the branch leaving a forked branch to use as a hanger. Removing the extra branches and twigs minimizes the wrong turns that the snail can make when it awakens and leaves its twig to climb onto the new host tree and it makes it easier to handle the cut branch. The trimmed branch with snail still attached is then placed in an appropriate host tree and secured with blo-degradable cotton string as needed. if the snail is sealed onto a branch that is too large to handle and relocate, the snail will have to be removed from the tree bark. This can be done safely by spraying the snail with clean fresh water which will soften the adhesive seal. After the seal softens, gently peel the snail off the tree bark. This should be done by an experienced tree snail handler. The adhesive membrane (seal) will be broken in this process so the snail will then have to be awakened to be relocated. See procedures for detached snails below. Tree snails detached from branch -or with broken protective seals: Aestivating tree snails with broken protective seals will die of desiccation unless they are awakened by being held in a warm, moist box for a period of time (usually a few hours). To awaken aestivating snails, place them in a tree snail holding pen (cooler). On the bottom of the cooler lay two layers of clean paper towels saturated with clean fresh water. Fill the cooler with out fresh Pigeon plum, Cocoloba diversifolia, branches with leaves attached. Pigeon plum is a favorite host tree for tree snails and the leaves stay fresh .b in the cooler for a long time. Spray the branches with water to keep the air in the cooler saturated. Spray the protective membrane of each snail with clean fresh water. As it softens, peel it off to hasten the snail's awakening. Keep the drain plug open and keep the cooler lid open slightly to allow good air flow, but do not allow snails to escape the cooler once they awaken. Once they are active, they can be placed in a new host tree using the same technique described in the next section on active snails. Between uses, the cooler should be thoroughly cleaned and dried as It will become contaminated with snail excrement and mucus. Active snails: If the weather is warm and humid, active tree snails can be easily relocated by simply spraying the bark of the new host tree with clean fresh water. Place the snail on the wet bark and support it until it gets a firm grip. The snail will climb up the tree and relocation is complete. If conditions are warm but dry, the snail can still be released as it will simply reseal itself on the new tree as soon as it perceives the dry conditions. Garber's SRuMe Avoidance Pree cares Based on pre -construction surveys conducted at surveyed pole locations, Garber's spurge is either not present or extremely rare at proposed pole locations. Regardless, specific procedures will be implemented during the installation of the 62 power poles that are designed to avoid impacting arty individual plants. These procedures include the following: All staff conducting pole installation activities will be provided a copy of this protocol and be instructed on pole installation procedures by a qualified biologist. A qualified biologist is someone with the appropriate combination of education and training that makes them competent to direct pole installation in a manner that avoids adverse impacts to Garber's spurge. A qualified biologist will have direct experience in the identification of Garber's spurge and relevant construction management experience. At each pole location, the work area will be delineated using staked silt fencing. This silt fencing will be installed around the pole location to clearly identify the work area; no soil disturbance will occur outside the work area. Work areas will be approximately 10' x 10' and will encompass the proposed pole location with adequate room for installation and containment of spoils. Once the work area has been staked, a qualified biologist will inspect each work area for the presence of Garber's spurge. If no plants are identified, work may proceed at that location. If a Garber's spurge is found within the work area, the pole location will be relocated by KEYS engineering staff to a suitable adjacent location that will not result in impacts to Garber's spurge. Once the now location has been identified, a new work area will be established at this site. Any spurge identified outside a work area will be marked using traffic cones and protected from impacts during the installation process. All spoils from the auger process will be contained within the work area and be removed off -site for appropriate disposal. Following pole installation, the work area will be raked smooth to restore the original topography and the silt fence removed for disposal. Staging of supplies will not occur on the roadsides on No Name Key. Staging of project materials will occur off -site at a KEYS facility and supplies will be transported to the island as -needed. KEYS will maintain control over contractors during pole installation to ensure that the roadsides on No Name Key are not adversely impacted by the proposed project. hN (305) 295-1000 1001 James Street PO Box 6100 =Wes Ak Key West, FL 33040-6100 www.KeysEnergy.com UTILITY BOARD OF THE CITY OF KEY WEST November 3, 2010 Ms. Judith Clarke Monroe County 1100 Simonton Street Key West, Florida 33040 RE: NO NAME KEY — LAND PORTION Dear Ms. Clarke: Attached are two copies of the proposed construction on No Name Key. All of the construction will occur on public county right-of-way and private property easement. This coordination review is only for the" land portion". Please advise of any concerns within the next three weeks, as Keys Energy Services will be installing two poles to test the site conditions. If you have any concerns, or would like to perform a "field site visit" please let me know. Sincerely, Dale Finigan Director of Engineering Dale. Finigna@KeysEnergy.com DF/ba c: L. Tejeda, General Manager & CEO J. Wetzler, Asst. General Manager & CFO A. Tejeda, Director Customer Services D. Price, Director of T&D/Electrical M. Alfonso, Supervisor of Engineering File: PLI-133 IIIIIII Jim • • • I •` �• . • �• Tree Trimming (line clearance) needed for the Overhead Facilities Equipment 7. Electrical Material Details (pole,, manhole., trench • �1'! w h� it�� I It i eaan hi — �" i 1 p • d#, d I F4 a� } g q uF ",��� .' A 41 V S h� S`•" �'b9� q N � rS kiE t � Ry t � 4x ate, L ffi ffi �3 ; gg � ffi �kli 40 I ; } �y,} % u D x �uq u II R � n � 64 6 � I � � n 14r1 1 40 X 1 1 �1 �ls(( 1 1471(; %D 1 1 S4} t 1 ,miry � 11 I i 7 39 • k 4 4 £yN ' it I� �ttttt"W'Wr' S��i 94u 4 11 J ii Sf 4 } sAl£{ .... S� AT` £ � ,�t� i { £ A �i�E y "X � i a n 2 4 S £ IF 1\ E` ' n 0,a�4�ar+� r .nw� £i, i tt y y I£ ��,' t AII&NJI - £IT y\ �r tt y, a u I it ly'VO J"6 y y ££ t r t r,,yi 1 5 s 'F 94111 �1 t �44�r �izr r yy t �4t1`r,t ts... ....0 w R F. il�i � • .n � ,Fi r' i l r'#ixY N i`T�'FIYK+A4Z� mx»Y�h"riaie t v. � ttt�M1t ! st t err j� y it q g War �'VE 40 J" t i n i Location/pole number Latitude Longitude N N-1 G 24.697831 81.340212 NN-1 24.697829 81.340121 NN-2 24.697819 81.339322 NN-3 24.697808 81.338495 NN-4 24.697798 81.337666 NN-5 24.697788 81.336836 NN-6 24.697778 81.336008 NN-7 24.697769 81.335179 NN-8 24.697759 81.334355 NN-9 24.697750 81.333546 NN-10 24.697740 81.332731 NN-11 24.697729 81.331920 NN-12 24.697720 81.331116 NN-13 24.697708 81.330209 NN-14 24.697695 81.329222 NN-15 24.697687 81.328379 NN-16 24.697677 81.327549 NN-17 24.697667 81.326723 NN-18 24.697657 81.325896 NN-19 24.697648 81.325057 NN-20 24.697638 81.324276 NN-21 24.697629 81.323500 NN-22 24.697619 81.322713 NN-23 24.697610 81.321937 NN-24 24.697599 81.321256 NN-24G 24,697600 81.321165 NN-12-1G 24.697888 81.331117 NN-12-1 24.697972 81.331118 NN-12-3 24.698742 81.331134 NN-12-5 24.699493 81.331154 NN-12-7 24.700267 81.331171 NN-12-9 24.701040 81.331191 NN-12-11 24.701815 81.331207 N N-12-13 24.702551 81.331225 NN-12-13G 24.702634 81.331224 NN-12-13-1G 24.702550 81.331353 NN-12-13-1 24.702549 81.331439 N N-12-13-3 24.702531 81.332333 N N-12-13-5 24.702521 81.332912 NN-12-13-5-G1 24.702522 81.332931 NN-12-13-5-G2 24.702444 81.332909 N N-12-13-5-2 24.703031 81.332921 NN-12-13-5-2G 24.703116 81.332923 NN-13-1G 24.697874 81.330212 NN-13-1 24.697956 81.330212 NN-13-3 24.698756 81.330232 NN-13-5 24.699529 81.330250 NN-13-7 24.700104 81.330261 N N-13-9 24.700681 81.330274 NN-13-11 24.701258 81.330283 NN-13-13 24.702030 81.330300 NN-13-15 24.702797 81.330326 NN-13-15G 24.702879 81.330327 Location/pole number Latitude Longitude NN-13-17 24.703023 81.330273 NN-14-1 G 24.697864 81.329220 NN-14-1 24.697949 81.329223 NN-14-3 24.698593 81.329238 NN-14-5 24.699351 81.329252 N N-14-7 24.700131 81.329270 NN-14-9 24.700873 81.329285 NN-14-11 24.701665 81.329303 NN-14-13 24.702244 81.329317 NN-14-13G 24.702297 81.329319 NN-14-15 24.702623 81.329324 NN-24-1G 24.697778 81.321251 NN-24-1 24.697844 81.321252 NN-24-3 24.698363 81.321260 N N-24-5 24.699041 81.321271 NN-24-5G 24.699125 81.321272 NN-24-7G 24.699287 81.321300 N N-24-7 24.699291 81.321275 NN-24-7G 24.699345 81.318655 NN-24-7-2 24.699308 81.320462 NN-24-7-4 24.699319 81.319919 NN-24-7-6 24.699334 81.319197 NN-24-7-8 24.699348 81.318744 NN-24-3-2 24.698362 81.321031 NN-24-3-2G 24.698360 81.321122 N N-24-3-4 24.698371 81.320618 NN-24-3-6 24.698390 81.319715 NN-24-3-8 24.698402 81.319173 NN-24-3-10 24.698412 81.318721 NN-24-3-10G 24.698413 81.318631 NN-24-1Galt 24.697762 81.321194 NN-24-1alt 24.697845 81.321195 NN-24-3a1t 24.698402 81.321212 NN-24-5alt 24.699078 81.321185 NN-24-5Galt 24.699152 81.321187 NN-24-7alt 24.699284 81.321194 NN-24-7Galt 24.699290 81.321326 NN-MH 24.697929 81.340481 MH-1 24.698027 81.348343 Location/pole number Elevation NN-1 G 2.9 NN-1 2.7 N N-2 2.8 N N-3 2.4 N N-4 3.3 NN-5 3.0 N N-6 3.2 N N-7 3.1 N N-8 3.5 NN-9 3.5 NN-10 3.5 NN-11 3.0 NN-12 3.6 NN-13 3.7 NN-14 4.2 NN-15 4.9 NN-16 5.3 NN-17 5.8 NN-18 6.1 NN-19 6.4 NN-20 5.8 NN-21 5.3 N N-22 5.5 N N-23 5.4 N N-24 5.2 N N-24G 5.3 NN-12-1 G 4.0 N N-12-1 4.3 N N-12-3 4.1 N N-12-5 3.7 N N-12-7 3.6 N N-12-9 3.0 NN-12-11 3.3 NN-12-13 3.6 NN-12-13G 3.5 NN-12-13-1G 3.9 N N-12-13-1 4.0 NN-12-13-3 4.0 NN-12-13-5 3.4 NN-12-13-5-G1 3.6 NN-12-13-5-G2 3.5 N N-12-13-5-2 3.7 N N-12-13-5-2G 3.8 NN-13-1 G 4.6 NN-13-1 4.7 NN-13-3 4.6 N N-13-5 4.2 N N-13-7 4.1 N N-13-9 3.4 N N-13-11 4.3 NN-13-13 4.4 N N-13-15 4.3 NN-13-15G 4.9 INN-13-17 5.0 INN-14-1 G 5.3 Location/pole number Elevation N N-14-3 4.6 N N-14-5 4.8 N N-14-7 4.7 NN-14-9 4.8 NN-14-11 5.1 NN-14-13 4.8 NN-14-13G 4.9 NN-14-15 5.4 NN-24-1 G 5.6 NN-24-1 5.4 N N-24-3 4.8 N N-24-5 4.5 N N-24-5G 4.4 NN-24-7G 6.7 N N-24-7 8.9 NN-24-7G 3.3 N N-24-7-2 4.0 N N-24-7-4 3.9 N N-24-7-6 3.2 N N-24-7-8 3.0 N N-24-3-2 4.5 N N-24-3-2G 4.8 N N-24-3-4 4.5 N N-24-3-6 3.7 N N-24-3-8 2.8 NN-24-3-10 2.9 NN-24-3-10G 3.1 NN-24-1 Galt 5.4 N N-24-1 alt 5.5 NN-24-3alt 4.5 NN-24-5alt 4.8 NN-24-5Galt 4.3 NN-24-7alt 4.6 NN-24-7Galt 4.9 INN-MH 3.2 MH-1 2.5 Elevations are referenced to NGVD 1929 Datum :2�«< /��: r �a � ;�i r, � $� i� r 1 i' A ua lip tit... a 9 vl' I� ik F�1 h I t � I yy7k i B' 61 1 ir} h, 1� 0 0 gN OD o N 0 in I S6CO �^ In E Li N 09 O I I VV I a M 0 J a S C, I I U n O g Z N N O I > O N ; 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ONE CHOICE. Fiberglass Conduit and Hanger Submittal Package For: Submitted to: BRIDGE ATI ACHMENT HANGERS & SUPPORTS DISTRIBUTOR OF OUTSIDE PLANT A19D UTILITY PRODUCTS FIBER OPTIC CABLE FIBER -SPLICING FIBER TESTING FIBER DOCUMENIATION K""ELLIGENT; TRANSPORTA110"N SYSTF,',MS ONE CALL - (800) 905-7506 ENCINEER-FURNISH C0NS1'R4.)C4 "BULLET RESISTANT" STEEL REP CEMENT CONDUIT s, �.�_7 A'BVLLET RESIST EXTRA HEAVY WALL FIBERGLASS COHDUff Designed for areas subject to physical damage, under roadways and rail beds, and under bridge applications where 'Bullet Resistance" is necessary to protect sensitive cables. This special filament wound fiberglass/epoxy conduit has shown no projectile penetration from a .45 caliber slug from less than 20 feetl Our "Bullet Resistant' conduit is manufactured with additional UV inhibitors formulated in the epoxy resin - giving it the longest outdoor life of any conduit system. United Fiberglass "Bullet Resistant" Conduit meets and exceeds the latest requirements of UL 1684A, Standard for Supplemental Requirements for Extra Heavy Wall Reinforced Thermosetting Resin Conduit (RTRC) and Fittings and NEMA TC14-2002. U 1 rimrl AUVAN IAut:o AFtt: LIGHTWEIGHT A 20 foot length of 4" weighs just 55 OLOW The hard smooth inside diameter pounds compared to 200+pounds for FRICTION yields lower friction for long cable 4"Sch. 40 steel. pulls. CORROSION Fiberglass conduit is resistant to a 0 HIGH The high impact resistance and stiff - RESISTANCE wide variety of chemicals including STRENGTH ness of fiberglass conduit make it a salts and acids. It also contains an truly "tough" material. It has a higher ultra -violet (UV) inhibitor. strength to weight ratio than steel. THERMAL The operating range of -400 to LOW COST +250°F. make it ideal for any outside The low initial cost combined with the STABILITY temperature environment. Its thermal ease of installation of a lighter stability means less expansion and material make fiberglass conduit contraction and fewer expansion joints extremely competitive with Sch. 40 compared with Sch. 40 pvc. steel. COMPRESSION TEST FORCE (Ibs/ft) 2" 8900 2000 3 8900 2000 4" 8900 2000 6" 1 8900 2000 �, lf_,r s'v. �; lar rh Sk � ,1 t r ti ,n;�rl , r��r '�-t. i }0 R r N 2" XHW UF20B-XHW-AG-20-1 2.00 2.48 .250 240" 1.25 (57) (63) (6) (6.1) 3" XHW UF30B-XHW-AG-20-1 3.00 3.48 .250 240" 1.83 (76) (88) (6) (6.1) 4" XHW UF40B-XHW-AG-20-1 4.00 4.48 .250 240" 2.60 (101) (114) (6) (6.1) is XHW UF50B-XHW-AG-20-1 5.00 5.48 .250 240" 3.47 (127) (139) (6) (6.1) 6" XHW UF60B-XHW-AG-20-1 6.00 6.48 .250 240" 3.83 (152) (165) (6) (6.1) 8" XHW UF80A-XHW-AG-20-1 8.40 8.90 .250 240" 4.90 (152) (226) (6) (6.1) 10" XHW UF10B-XHW-AG-20-1 10.00 10.50 .250 240" 5.90 (152) (267) (6) (6.1) 12" XHW UF12B-XHW-AG-20-1 12.00 12.50 .250 240" 6.90 (152) (318) (6) (6.1) FOR 10' LENGTHS, CHANGE (20) IN CONDUIT PART NUMBER TO (10) CONDUIT COLOR CHART -LAST NUMBER IN PART # DENOTES COLOR. CONTACT UFA FOR SPECIAL COLOR PRICING. M ACK �� • i fd§i4�4t� United Fiberglass Above Ground "Bullet Resistant" Products meet and exceed the latest requirements of UL 1684 A Conduit, supports enclosures are designed to work together as a system. For optimal performance, use only United Fiberglass of America products when installing conduit systems on bridge structures. 5. Properties and Specifications Surface Interior Finish < 125 micro inches Clean, smooth and free of abrasive surfaces Exterior Finish < 2000 micro inches Shall contain UV 9 Absorber Solution and pigmented carbon black or gray Coefficient of Friction 0.385 (PVC cable) 0.233 (XLP cable) 0.160 (concentric neutral cable) Electrical Dielectric Strength > 500 volts/mil per ASTM-D 149 Dissipation Factor 0.5% per ASTM-D 150 Mechanical Tensile Strength (axial) >11,000 psi per ASTM-D 2105 Ultimate Elongation 2% Modulus of Elasticity 1,250,000 psi Representative Weight 2" —1.245 Ibs/ft 3" — 1.83lbs/ft 4" — 2.60lbs/ft 5" - 3.47" Ib/ft 6" - 3.83 Ib/ft Modulus of Elasticity in Tension 1,250,000 psi Min. Impact Resistance (Factory Test) 2" 150ft/lbs 3" — 225ft/lbs 4" — 300ft/Ibs 5" — 375ft/Ibs 6" — 600ft/lbs Physical Specific Gravity 1.9 — 2.0 per ASTM-D792 Glass Content 68% +/- 2% Water Absorption < 1 % Barcol Hardness 56 +/- .75 Compression Test 2" — 6" > 2000 Ibf (8900N) per ASTM-D2412 Thermal Heat Deflection Temp. 312° F ASTM-D 648 Continuous Operating Temp. -40° F to 230" F (-40' C to 110" C) per UL 1684A Coefficient of Thermal Expansion 1.25 x 10' in/in/F per ASTM D 696 Conduit diameters shall be fabricated per the following tolerance and out -of -roundness: Nominal Minimum Outside Maximum Inside Inside Diameter Out -of -Roundness Diameter Diameter Nominal 2" 2.00" 2.50" 0.40" 3" 3.00" 2.50" 0.40" 4" 4.00" 2.50" 0.40" 5" 5.00" 2.50" 0.40" 6" 6.00" 2.50" 0.40" 6. Marking Conduit shall be stenciled per customer specifications. 7. Packaging The conduit and fittings shall be packaged in accordance with United Fiberglass of America, Inc., and commercial practices to ensure safe delivery without damage. Conduit lengths will be bundled and strapped for ease of offloading and use. Fittings and elbows will arrive on skids. Hanger systems will arrive pre -assembled and on skids. United Fiberglass of America — XHW Specification Page 3 Made In The U.S.A. 8. Installation a. United Fiberglass of America shall provide the contractor methods to ensure proper alignment of joints and conduit runs prior to installation. b. The installer of the conduit system shall be familiar with the installation guides provided by United Fiberglass of America, Inc., or an equivalent guide. c. Expansion joints must be installed at a maximum every 160' of conduit run. d. An expansion joint must always be located between an abutment wall and an anchor point hanger regardless of the space between them. e. Expansion joints are to be set to factory recommendations prior to securing split stop rings. f. Split stop rings must be located on each side of the anchor point hangers to secure the conduit in place. g. Field Joints. An adhesive gun shall apply a two -component epoxy adhesive to the bell and spigot ends and field cuts before joining the conduit together. All joints shall be cured before moving conduit. h. The epoxy manufacturer's temperature restrictions should be carefully observed. Care must also be taken to store the epoxy material at room temperature prior to use. I. Each joint shall be seated using a block of wood placed over the bell end and a hammer. A stab and twist motion should be used to properly seat the joint. j. The conduit must be loose and properly aligned in the hangers. k. Couplings, bell ends and fittings should be placed a minimum of 24" from the hanger windows. I. Couplings, bell ends and fittings should be staggered so as to not bind up against each other. This is achieved by staggering each run of conduit at the abutment wall. m. All non-metallic hanger parts shall be fiberglass. n. A representative of United Fiberglass of America, Inc., will be on site if requested to ensure proper installation procedures. FOR INSTALLATION QUESTIONS, PLEASE CALL THE UFOA CONTRACTORS HELP -LINE: Toll Free: 800-905-7506 AFTER HOURS: 937-605-1559 9. Approved Manufacturer: United Fiberglass of America, Inc. United Fiberglass of America — XHW Specification Page 4 Made In The U.S.A. ABOVE GROUND CONDUIT /PS COHTROLLEO noEm"ss compu/T Iron Pipe Size, or O.D. controlled products have similar outside dimensions to PVC and steel, but larger inside dimensions. This allows a greater wire or cable carving capacity compared with PVC and steel. CLen9th> SIZE AG PART # I.D. I O.D. WALL Length LbsJR 2" SW UF20A-SW-AG-20-1 2.25 2.39 .070 240" .42 (57) (60) (2) (6.1) 3" SW UF30A-SW-AG-20-1 3.38 3.52 .070 240" .70 (86) (89) (2) (6.1) 4" SW UF40A-SW-AG-20-1 4.34 4.48 .070 240" .80 (110) (114) (2) (6.1) 4" HW UF40A-HW-AG-20-1 4.34M15) .090 240" 1.03 (110)(2) (6.1) 5" SW UF50A-SW-AG-20-1 5.38.075 240" 1.03 (137)(2) (6.1) 5" MW UF50A-MW-AG-20-1 5.38 5.57 .095 240" 1.27 (137) (142) (2) (6.1) 5" HW UF50A-HW-AG-20-1 5.38 5.60 .110 240" 1.48 (137) (142) (3) (6.1) 6" SW UF60A-SW-AG-20-1 6.38 6.53 .075 240" 1.19 (162) (166) (2) (6.1) 6" MW UF60A-MW-AG-20-1 6.38 6.57 .095 240" 1.51 (162) (167) (2) (6.1) 6" HW UF60A-HW-AG-20-1 6.38 6.60 .110 240" 1.75 (162) (168) (3) (6.1) 8" HW UF80A-HW-AG-20-1 8.40 8.64 .120 240" 2.43 (213) (220) (3) (6.1) IPS = IRON PIPE SIZE FOR 10' LENGTHS, CHANGE (20) IN CONDUIT PART NUMBER TO (10) CONDUIT COLOR CHART -LAST NUMBER IN PART # DENOTES COLOR. CONTACT UFA FOR SPECIAL COLOR PRICING. 1 2 3 4CONCRETE United Fiberglass Above Ground• -- - �.- Products meet and exceed the latest Conduit and supports requirements of UL 1684/NEMA TC-14 2002 together as a system. a sys are designed to work tem. For optimal performance, use only United Fiberglass of America inserts, brackets and supports when installina fiberalass conduit. SLEEVE COUPLINGS CAN BE USED TO SLEEVE THROUGH A BRIDGE ABUTMENT WALL, OR HANGER SUPPORT WINDOW TO PROTECT CONDUIT. MAY ALSO BE USED TO REPAIR BROKEN DUCT. SLEEVES ARE NOT RECOMMENDED FOR JOINING TWO MALE ENDS OF CONDUIT. IPS Part Number STOP COUPLING STOP COUPLINGS, OR DOUBLE BELL COUPLINGS ARE USED TO JOIN MALE ENDS OF CONDUIT AFTER A FIELD CUT HAS BEEN MADE. IPS Part Number 2" SW UF20ASW-AG-510-1 2.41" 6.50" 3" SW UF30ASW-AG-510-1 3.54" 6.50" 4" SW UF40ASW-AGS10-1 4.50" 6.50' 4" HW I UF40A-HW-AG•510-1 4.54' 6.50' 5" SW UF50ASW-AG-510-1 5.55' 6.50" 6" MW UFSOA-MW-AGS10-1 5.59" 6.50" 5" HW UF50A-HW-AG-510-1 5.62' 6.50" 6" SW UF60ASW-AG-510-1 6.55" 6.50" 6" MW UF60A-MW-AG510-1 6.59" 6.50" 6" HW UF60A-HW-AG-510-1 6.62" 6.50' 8"HW UF80A-HW-AG-510.1 8.66" 6.50" ABOVE GROUND CONDUIT �u I ID Part Number ID Part Number 2" SW UF20B-SW-AG-510-1 2.17' 6.50" 3" SW UF30B-SW-AG-510-1 3.16' 6.50" 4" SW UF40B-SW-AG-510-1 4.16" 6.50" 4" HW UF40B-HW-AG-510-1 4.20" 6.50" 5" SW UF50BSW-AG-510-1 5.18" 6.50" 5" MW UF50B-MW-AG510-1 5.21" 6.50" 5"HW UF50B-HW-AG510-1 5.24" 6.50" 6" SW UF60BSW-AG-510-1 6.17" 6.50" 6" MW UF60B-MW-AG510-1 6.21" 6.50" 6" HW UF60B-HW-AG-510-1 6.24" 6.50" z 0 = U a � C C C U m 0 E a o m 06 co 0 N 7 oU a Z s N S oD t4 U d V - 7 L 0 Wi 0 ~ J `- L_ �w a 2 � a_ LL NgU'o W W m m9 .. I Ea ZL r C;o r.r a z p a z LL �£r. a $ q m 3 000 W m Z w �R QWUZ 2 O t- 0 n 0 V n v c aa. b tl1 r Lc) co C O m 0 V n U LL. O — z O a U U L w 0 �a C i 5 Z W N M U H H H H 3 »>» 00000 o z z z w0000 W o 0 0 0 �ci ui ui ui � in CV in N fn N i"c� N U O o O 0 O 0 O 0 ai ri ch ri tri t� Q o 0 0 0 0 M r r r r r �rrn^^rrr^^i``.c^^i``.^^i r r r V V V V Z Q Q Q >Q ca===2 a o 0 0 0 N � to CO W CV �h in Cfl "ING MPANSIONJOINT EXPANSION JOINTS ARE USED TO ACCOMMODATE CHANGES IN CONDUIT LENGTH DUE TO TEMPERATURE FLUCTUATIONS. IPS Part Number A,' [44�Yz T,",Rlm IPS Part Number ABOVE GROUND CONDUIT ` ° u...,,...-...u-....�.�_..................._........ Glbergloss ComkAit--� ID Part Number ID Part Number 2" SW UF20BSW-AG430-1 2.17' 53' 6.00' 3" SW UF308SW-AG-4301 3.16" 53" 6.00' 4" SW UF40MW-AG-430-1 4.16" 53" 6.00" 4" HW UF40B-HW-AG-430 1 4.20" 53" 6.00" 5" SW UF50BSW-AG-430-1 5.18" 53" 6.00" S" MW UFSOB-MW-AG-430-1 5,21' 53' 6.00' 5" HW UF50B-HW-AG-430-1 n/a n/a 6.00" 6" SW UF60BSW-AG-430-1 6.17" 53" 6.00" 6" MW UF60B-MW-AG-430-1 6.19" 53" 6.00" ABOVE GROUND CONDUIT m SPL/T STOP RANDS SPLIT STOP RINGS CREATE A FIXED POINT IN BETWEEN TWO EXPANSION JOINTS. TWO PAIRS OF SPLIT STOP {� RINGS ARE REQUIRED FOR EACH EXPANSION JOINT USED. THEY ARE BONDED WITH ADHESIVE ON EACH SIDE OF AN, ANCHOR POINT HANGER WHICH IS PLACED MID -POINT BETWEEN TWO EXPANSION JOINTS. IPS Part Number ID Part Number IN 2" SW UF20ASW-AG-440.1 N/A .250 3.00" 2" SW UF2013SW-AG-440-1 N/A .250 3.00" 3" SW UF30ASW-AG-440-1 N/A .250 3.00" 3" SW UF3013SW-AG-440-1 N/A .250 3.00" 4" SW UF40ASW-AG-440.1 N/A .250 3.00" 4" SW UF408-SW-AG-440-1 N/A .250 3.00" 4" HW UF40ASW-AG-440-1 N/A .250 3.00" 4" HW UF40SSW-AG-440.1 N/A .250 3.00" 5" SW UF50ASW-AG-440-1 N/A .250" 3.00" 5" SW UF506SW-AG-440-1 WA .250 3.00" 5" MW UF50ASW-AG-440-1 N/A .250 3.00" 5" MW UF50BSW-AG-440-1 N/A .250 3.00" 5" HW UF50ASW-AG-440-1 N/A .250 3.00" 5" HW UF50BSW-AG-440.1 N/A .250 3.00" 6" SW I UF60ASW-AG-440.1 N/A .250 3.00" 6" SW UF6013SW-AG-440-1 N/A .250 3.00" 6" MW UF60ASW-AG-440-1 N/A .250 3.00" 6" MW UF60B-SWAG-440-1 N/A .250 3.00" 6" HW UF60ASW"AG-440-1 N/A .250 3.00" 8" HW UF608SW-AG-440-1 N/A .250 3.00" 8" HW UF80ASW-AG-440-1 N/A .250 3.00" *v VY WALL SPL/T STOP R/N" s, THICKER STOP RINGS ARE USED WHERE THE HANGER Yt SUPPORT WINDOW IS DESIGNED LARGE ENOUGH FOR THE`, BELL ENDS OF THE CONDUIT TO PASS THROUGH. CONTACT UNITED FIBERGLASS FOR SPECIAL WALL THICKNESSES. IPS Part Number ID Part Number 2" SW UF20A-HW-AG-591-G-1 N/A .375 3.00" 2" SW UF2013-HW-AG-591-G-1 N/A .375 3.00" 3" SW UF30A-KW.AG-591-G-1 N/A .375 3.00" 3" SW UF30B-HW-AG-591-G-1 N/A .375 3.00" 4" SW UF40A-HW-AG-591-G-1 N/A .375 3.00" 4" SW UF4013-HW-AG-591-G-1 N/A .375 3.00" 4" HW UF40A"HW-AG-591-G-1 N/A .3751 3.00" 4" HW UF4013-HW-AG-5914-1 N/A .375 3.00" 5" SW UF50A-HW-AG-591-G-1 N/A .375 3.00" 5" SW UF5013-HW-AG-5914-1 N/A .375 3.00" 5" MW UF50A-HWAG-591-G-1 N/A .375'! 3.00" S" MW UF5013-HWAG-591-fa-1 WA .375 3.00" 5" HW UF50A-HW-AG-591-G-1 N/A .375 3.00" 5" HW UF5013-HW-AG-591-G-1 N/A .375 3.00" 8" SW UF60A"HW-AC-591-G-1 N/A .375 3.00" 8" SW UF6013-14WAG-591-4-1 N/A .375 3.00" 6" MW UF60A-HW-AG-591-G-1 N/A .375 3.00" 6" MW UF60B-HW-AG-591-G-1 N/A .375 3.00" 6" HW UF60A•HW-AG-591-G-1 N/A .3753.00" 6" HW UF6013-14W-AG-5914-1 N/A .375 3.00" 8" HW UF80A-HW-AG-591-G-1 N/A .375 3.00" CONDUITABOVE GROUND \` EXPANSION ✓O/NTs FOR Ftw" w CONOu/T All conduit materials expand and contract with changes in temperature. These temperature changes affect reinforced thermosetting resin conduit (RTRC) differently than traditional materials such as PVC, steel and aluminum. For example, the co -efficient of thermal expansion for fiberglass (1.5 x 10-5 in/in/°F) is only slightly greater than steel and aluminum, but nearly three times less than PVC. Thermal expansion and contraction has a significant effect on long straight runs of conduit, such as when installed on bridges. For this application, expansion joints are used to accommodate changes in length. This prevents potentially harmful stress on the conduit itself or on any supporting structures. Expansion Fittings Required Section 352.44 of the 2002 National Electrical Code® requires that expansion joints be installed for RTRC conduit to compensate for thermal expansion and contraction where the length of change is anticipated to be .25 in. (6.36mm) or greater, in accordance with Table 352.44 B, in a straight run between securely mounted items such as boxes, cabinets, elbows or other conduit terminations. For bridge attachment applications, the following rule of thumb applies: • Where the conduit run is 50 ft. or less, no expansion joint is required. Where the conduit run is between 50 ft. and 200 ft., one expansion joint is installed at the mid -point. For these installations no anchor point hanger is required, as the bridge ends or abutments act as a stop- and allow for expansion to occur in the expansion joint. Where the conduit run is greater than 200 ft., install one expansion joint every 160 ft. to 200 ft. Anywhere between each expansion joint, an anchor point hanger is installed which is braced to the bridge deck. Split stop rings are then cemented to the conduit on each side of the anchor point hanger to create a fixed point. This allows the expansion joints on each side of the anchor point hanger to except the expansion and contraction of the conduit. Approx. 80 ft. Approx. 80 ft. Approx.160 ft. - 200 ft. Intermediate Style Hanger I 1 7 Anchor Point I it y tyle Hanaer '--Fiberglass to PVC or GAC Adaptor Cormfe conogdtprotnmGng flvm awwrwt to fiberglass uslnp a MCad$otorwhfch yeaeBfusdon orameteorfemale threaded ad*W to nlpld steal. Expansion Joint /Vaae first awm ivniafnt eppmdmaWyW wool hom abutment mhd at/east 121 inches from a hanger window. Split Stop Ring Expansion Joint Conduit Bell End Nylon :to wreps — E— once am conawr system /s tamplew* installed and dhe aapwWon ia/nts ere set l I to the 4Wroprfato pas/dmh for dw arnblenr 4—perstuln grue the swig stop singe onto dhe conddrar the andwr I l Split Stop Ring polnthangeriocadons: Serar10401rstgo Cemented to Conduit Line dfwInpwar'a111W ndewwx KNch may be leftlnp/am 3/4 1/2 1/4 For medium temperature (65°-75° F) set piston 1i4 1i2 3 4 Max 1/2 way in barrel 3/4 1/2 1/4 For cold temperature _a (20°-30° F) set piston 1/4 r 3/4 MAX 1/4 way in barrel 3/4 1/2 1/4 For hot temperature (95°-105° F) set piston 3/4 way in barrel 1/4 1/2 3/4 MAX pus SURFACE Interior Finish < 125 micro inches Clean, smooth and free of abrasive surfaces EXTERIOR FINISH < 2000 micro inches Shall contain UV 9 Absorber Solution and pigmented carbon black or gray COEFFICIENT OF FRICTION ELECTRICAL Dielectric Strength Dissipation Factor Volume Resistivity Surface Resistivity Dielectric Constant MECHANICAL Tensile Strength (axial) Compressive Strength (axial) Ultimate Elongation Modulus of Elasticity Modulus of Elasticity in Tension PHYSICAL Specific Gravity Glass Content Water Absorption Barcol Hardness THERMAL Heat Deflection Temp. Continuous Operating Temp. Maximum Operating Temp. Coefficient of Thermal Expansion FLAMMABILITY Conforms to UL 1684 HB Rating 0.385 (PVC cable) 0.233 (XLP cable) 0.160 (concentric neutral cable) > 500 volts/mil per ASTM D 149 0.5% per ASTM-D 150 3.8 x 1014 ohm per ASTM D 150 1.1 x 1014 ohms per ASTM D 257 3.5 (at 103 cps) per ASTM D 150 11,000 psi per ASTM D 2105 11,000 psi per ASTM D 695 2% 1,250,000 psi per ASTM D 2105 1,250,000 psi per ASTM D 2105 1.9 — 2.0 per ASTM-D792 68% +/- 2% per API SPEC 15 LR < 1 % per ASTM D 570 55 +/- .75 per ASTM D 2583 3120 F per ASTM D 648 -400 to 250° F (-40° C to 110* C) -600 to 260° F (-60° to 130° F) 1.25 x 10"5 in/in/F per ASTM D 696 U L 94 SPECIFICATIONS Impact Resistance Table Minimum impact resistance values shown in ft-lbs as required by UL 1684/NEMA TC-14 2002 as tested at 740F and 320F in accordance with ASTM D2444. Compression Resistance Table The internal diameter of the conduit shall not decrease by more than 25% during application of the force specified in the table below when tested in accordance with UL 1684, clause 5.2.2 to 5.2.4. The conduit shall show no evidence of cracking or buckling after removal from the compression equipment. Pipe Stiffness Minimum conduit stiffness at 5% deflection for all sizes of conduit shall not be less than the values shown below when tested at 740F and 320F in accordance with ASTM D2412 ADHESIVE SYSTEMS UNITED FIBERGLASS OF AMERICA "ALL WEATHER" ADHESIVE APPLICATION GUIDE The United Fiberglass "ALL WEATHER" adhesive systems have been specially formulated for United Fiberglass products and are designed to create a permanent weld for joints and fittings. Each kit contains a two-part epoxy adhesive system and one static mixing tip. A dual plunger adhesive gun is also required and must be ordered separately. Note: Poor surface preparation is a major hindrance to proper adhesion f ti3 �y# 7 �ptyfi All O.D. field cuts or bonding surfaces that have not been factory sanded must be abraded with sand paper (#4 or equal) to remove resin glaze. Remove all dust, moisture and residue prior to applying the adhesive. Remove applicator gun and adhesive kit from their containers. Remove black plastic nut and tips from the end of adhesive kit and place the cartridges in the applicator gun. Next place the static mixing tip on the end of the cartridges and screw down with the plastic nut. Each kit comes with one static mixing tip. Additional tips are available from the factory. Begin squeezing the handle of the gun to start adhesive through the mixing tip. Squeeze out enough adhesive until you achieve a gray uniform color. Adhesive is now thoroughly mixed and ready for application. (Note: adhesive should always be stored at room temperature for ease of installation. Cold adhesive is difficult to squeeze through the cartridges). An alternate method of mixing is to squeeze adhesive directly from the cartridges without mixing tip and into a mixing bowl. Dispense just enough adhesive to complete desired number of joints. Mix adhesive thoroughly with a spatula until you achieve a gray uniform color. Apply adhesive following the directions below. (This method eliminates the need for additional mixing tips due to epoxy hardening in the tip). Approximately 1" from the end of the spigot, apply enough adhesive to cover a 2" area around the spigot end. Spread adhesive uniformly with a spatula or wooden mixing stick. Immediately insert the spigot end into the bell or fitting and seat into place using a "twist and tap" motion - tapping the end of the conduit with a wooden block and rubber mallet, taking care not to damage the end. Spread excess adhesive around the outside of the bell or fitting. Care should be taken not to disturb the joint until it has fully cured. The pot life or working life of the OF-ADH 610 "ALL WEATHER" Adhesive is approximately 10- 15 minutes with a total cure time of 4 hours. Estimated Joints Per Kit 2" 24 Joints 3" 20 Joints 4" 16 Joints 5" 12 Joints 6" 8 Joints UFADH 810 20 oz All Weather Adhesive UFADH 6W Dual Cartridge Applicator Gun UFADH 620 ' Mlxing 77ps Prime Conduit •' Adhesive PRIME SEAL 5200 CONDUIT JOINT! • component,1 1' " solids, epoxy jointused for sealing Bell -and -Spigot pipe joints in fiberglass con- duits. • Fast setting ® Cures at temperatures as low as -180 F • Easy 1:1 mix ratio • Non -sag consistency 22 Ounce "Quick Mix" Cartridges PRIME RESINS, INC. - 2291 Plunkett Road - Conyers, Georgia 30012 770-388-0626 / 800-321-7212 • Fax: 770-388-0936 - www.primeresins.com - email: sales@primeresins.com PHYSICAL PROPERTIES AT 77°F (25°C): MIX RATIO A:B 1:1 By Volume VISCOSITY Flowable Gel Concrete Gray POT LIFE 60 grams 1/2 gallon Tack Free (1/811) 90°F (32°C) 2 minutes 2 minutes 10 minutes 730F (230C) 3 minutes 3 minutes 11 minutes. 500F (10°C) 4 minutes 3 minutes 11 minutes i (neat) 231 cubic inches (smooth surfaces) 1/8" thick = 12 square feet per gal (rough surfaces) = 6 square feet per gal (STRENGTHSTEST DATA •t- COMPRESSIVE STRENGTH ASTM D-695 COMPRESSIVE MOE ASTM D-638 TENSILE STRENGTH ASTM D-638 TENSILE MOE ASTM D-638 BOND STRENGTH 2 DAY (dry) ASTM C-882 14 DAY (wet) ELONGATION ASTM D-638 SHORE HARDNESS D SCALE 8,200 2.82 x 105 5,500 3.67 x 105 3,060 3,400 1.9% 85 WATER ABSORPTION ASTM D-570 .8% Prime Seal 5200 - Conduit Joint Adhesive APPLICATION TECHNIQUES: Material Conditioning: Pre -condition materials to 650F - 850F (190 - 30°C) before using Temperature Effects: All material should be stored at a moderate recommended temperature (generally 600 - 75°F) at least overnight prior to use. The viscosity (thickness) and reaction time of epoxy are sensitive to tem- perature. In cold weather, if materials are not pre -conditioned, they will become thicker and may become diffi- cult to dispense. In hot weather they can become thin and sag, and set up much quicker. Consult supplier for alternate product for temperature above 650 - 70°F. DO NOT USE IF TEMPERATURE AT TIME OF INSTAL- LATION IS BELOW -18OF (-28°C). Surface Preparation: Pipe ends (male and female) shall be sanded to remove gloss and to provide additional mechanical adhesion. Surface must be dry, and clean, free of any dust, oil, grease, or any other contaminants. Mixing Considerations: "Quick Mix" cartridges are recommended for this product because of its extremely quick set time. If bulk mixing is necessary, measure exactly 1 part "A" to 1 part "B" by volume in a clean dry pail. Only mix the amount of material that can be used within the pot life. Mix epoxy for 2 minute using low speed drill with a mixing paddle (never mix by hand). Scrape the sides and bottom of pail by mixing. Note: This product sets up extremely fast. Be careful how much material you attempt to mix up at a time. Installing material: Prime Resins "Quick Mix Cartridge System" was developed for ease of application with minimal waste of material. Pneumatic or Manual dispensing guns are available. Air compressor, piped air, or portable CO2 tank can operate the pneumatic gun. Using the cartridges: The gun shall be a 1:1 ratio gun designed for use with 300 ml X 300 ml twin cartridges. (Prime Resins Manual Gun# 725 or Pneumatic Gun 700) Unscrew the retaining nut from the cartridge, remove the small end caps, slide retainer nut over static mixing nozzle and screw onto cartridge and tightened. Save small end caps to re -seal cartridge if less than full tube is used. Tube can be used several times until empty; however, a new static mixer will be needed each time. Extra static mixers are available from the dealer or manufacturer, ask for Prime Resins '/2' static mixer part number 760 (supplied in packs of 10). If alternate static mixer is used they must be of a minimum of 30 ele- ments to ensure proper mixing, use of a shorter static mixer will not thoroughly mix product causing material not to set up properly. Squeeze trigger until material is flowing out end of static mixer, some material will need to be discarded to ensure proper mixing. Discard until uniform gray color is achieved. Never attempt to re -use a static mixer. Reuse can result in material that is not properly mix and the final prod- uct may not fully cure. Apply liberal band of material to bell and spigot section of fiberglass conduit joint. Joint gap should be less than 1/8", if joint gap is larger than1/8" consult factory for additional information. With a % - % turn rotation slide pipe together and set to desired depth for joint. Do not twist or spin pipe back and forth. Allow joint to set undisturbed until epoxy has set up, proceed to next joint. Prime Seal 5200 - Conduit Joint Adhesive LIMITATIONS: Do not use backer rod. Do not use solvents to thin. WARNINGS: "A" material may cause skin irritation. Contains epoxy resins. "B" material may cause severe burns on skin. Contains amines. FIRST AID: Skin Contact - Wipe off contaminated area and wash with soap and water. Eye Contact - Immediately flush eyes with large amounts of water for 10 minutes. Get medical attention. Inhalation - Move to fresh air if symptoms occur. If breathing is difficult, get medical attention. Ingestion - If conscious give two glasses of milk or water. Get medical attention. See MSDS for more information. CLEAN UP: Clean equipment with MEK or Xylene immediately after use. Observe product cautions when using solvents. Clean skin with soap and water. Wash contaminated clothing before re -use. WARRANTY: Prime Resins warrants its products to be free from manufacturing defect and that products meet the published characteristics when tested in accordance with ASTM and Prime Resins standards. No other warranties by Prime Resins are expressed or implied, including no warranty of merchantability or fitness for a particular purpose. Prime Resins will not be liable for damages of any sort resulting from any claimed breach of warranty. Prime Resins' liability under this warranty is limited to replacement of material or refund of sales price of the material. There are no warranties on any product that has exceeded the "shelf life" or "expiration date" printed on the package label. If you have any questions or comments about any of Prime Resins products or application techniques you may contact us directly at 800-321-7212, Monday through Friday 7:00 A.M. to 5:00 P.M Eastern Time. TDS-5200-1/07 INT - Conduit Joint Adhesive "Innovations in Infrastructure Repair Technology" 2291 Plunkett Road Conyers, Georgia 30012 770-388-0626 / 800-321-7212 - Fax: 770-388-0936 • www.primeresins.com b email: sales@primeresins.com 300ml x1 1 300ml x,' 'j ' ml Ratio Easily Converts Seconds with Snap In/Snap Out Push Disks Easily Fits Long EpconCartridges by Removing Front • cvw& • 151 wgrevou unk vouO aWx; tser ii HN r�qwrhllfl Inkru"u'p 'doonli CExual • lull fie 158, Weil I 4-�'Ul Ivs1sr'l ler, ow ni EMA�Urr, R""'D'ANS sivin'A'd M, I HjXrV,%A opro"in oral 1r, IM,111KI v.ao,43 'MU, II 'II HT If'I' I :'#] 'llu.t; rx 1,1 '94MIAllor IMIA101)"n lCeG A C R�, Ml, 061 F 1511 2 l�r,uwq Mux up, m wor 1,01malwo IC4 vu-'w Nslahlril i d ho!� iq %III o.AA owhnnfrxi Irt of 4w;41 KT 1I uccl lu'l, My'r, crA " P rlulw "'I III • I %xilinhu; rwj Irl""oW rilloNII Ifs'Al"o -ian "'aloly x; vo 4,,& inq� sxwgry trir,,;;Yv Wei a i No equ'dul", 4p �1%11-o ��Jl coruda � Aaw., mo I, aLvw,rnhFfv;,Afth al Ill ofWwax, allivilf nrrha �fxx i I q (""I"Illuk! plw;fic ulpvulp, jpJmj)ff-rj .a 1tl I.Ou,',hr r;llpulln wkiw w;s' In olvildill lvk�- ftrci i IiI hts dwr�j I� w � lulh �j ryocv,:;�, 1441 kkXl ll, , ty fic"19L4! � M ter I'vi'm , �V& h1a tocull Imiqp NrA oui V11 10 fIvjh mcphOikily ;VW qAP:A I W I fl,. 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"t For all 12 iWWW.UsAffixom tot, lot uct trifort'rown for s thaq rn,5jnjCp(xg s, click on Duch enter expertise. €e every I:al P 1 CUStOriler Service 1- 0- 9- (M-F, 6:00 am &00 pin CST) 1 116C0 7.22 SOUTHLAND PROFESSIONAL ENGINEERS, INC. Telecommunication Consultants Mill Montgomery, 334-271-7107 NO NAME KEY KEYS ENERGY SERVICES PROJECT LIST OF SIMILAR F28 LOCATION CLIENT NA CONTACT PHONE Panama City, FL Comcast Hathaway Bridge Ed Lang 850-258-9526 Panama City, FL Comcast Tyndal AFB-US 98 Bridge Ed Lang 850-258-9526 5384 Ft. Myers, FL SubAqueous Caloosahatchee River Gary Robinson 954-816-5121 5408 Panama City, FL Comcast West Bay Bridge Ed Lang 850-258-9526 8494 Panama City, FL Southern Light DuPont Bridge U.S. Hwy 98 Andru Bramblett 251-583-4444 8496 Ft. Myers, FL United Fiberglass Midpoint Bridge Kent Gruber 937-325-7305 8498 Lake Jesup, FL Conduit Constructors Seminole Express Bums Conrad 704-598-5684 8504 Marco Island, FL United Fiberglass Goodland Pass Kent Gruber 937-325-7305 8505 Ft. Walton, FL Southern Light Cinco Bayou Bridge Andru Bramblett 251-583-4444 8506 Ft. Walton, FL Southern Light Shalamar Bridge Andru Bramblett 251-583-4444 8507 Panama City, FL Southern Light Hathaway Bridge Andru Bramblett 251-583-4444 85 77 Indiana, PA Conduit Constructors Airport Road Bridge Bums Conrad 704-598-5684 8527 Homestead, FL Conduit Constructors 74th St. over FL Turnpike Bums Conrad 704-598-5684 8541 Chattanooga, TN United Fiberglass Lookout Creek Bridge Kent Gruber 937-325-7305 8548 Ft. Walton, FL Southern Light Brooks Bridge Andru Bramblett 251-583-4444 8549 Destin, FL Southern Light East Pass Bridge Andru Bramblett 251-583-4444 8550 Panama City, FL Southern Light Phillips Inlet Bridge Andru Bramblett 251-583-4444 8555 Philadelphia, PA United Fiberglass Henry Avenue Bridge Kent Gruber 937-325-7305 8564 Santa Cruz, AZ United Fiberglass Twin Peaks Bridges Chad Moore 937-605-4091 8567 Niceville, FL Southern Light Rocky Bayou Bridge Andru Bramblett 251-583-4444 8579 Pensacola, FL United Fiberglass Perdido River Bridge Kent Gruber 937-325-7305 8581 Edgecombe Co., NC Conduit Constructors Tar River Bridge Burns Conrad 704-598-5684 I EP _qp ll� wit 81> PO OR 'o .2 8- I'S C21 Am R w 0 0 - (O Iq O 0) O LLJ � U Q O O p (� Z ONm Ld Jo a J U�ao z Q ��^ m0 U m 0 0 Li p N 0 z z ? 0OII C) w0-CN a0 U x w(n N = a-�W v V-1 '— 3 ZUi W (n z Z U w a ~ w g v(ni JOf � U W ._I QM N ^ O Q p w J Z Y U � O Z �. 0 O N vp N a z w w (_ ^CO ^N N VW) N N N N N (N ( N N Zcram M I'I M M M wN `O M c�a 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CARDINAL'S CREST KEY LARGO NO 00573730-OW500 RICCIARDI STEPHANIE QPRT 8/4/2008 KEY LARGO NO 00573730-000600 10SPEY FAMILY LTD PTN KEY LARGO NO 00573730-OW700 KIBEL ADAM & CHRISTINE KEY LARGO NO 00573730-000800 WHEELER LESLIE P KEY LARGO NO 00573730-000900 WILLIAMS LEO H AND KEY LARGO NO MARILYN J 00573730-001000 EMMERT HELEN H RE5TAT TRUST AG12/21/95 KEY LARGO NO 00573730-001100 ROSEN HOLDINGS LLC KEY LARGO NO 00573730-001200 WILLIAMSON ROBERT KEY LARGO NO W 00573730-001300 KEEFE ROSEMARY A REV TR 9/13/93 AMD REST 10/24/01 KEY LARGO NO 00573730-001400 POOLE JAMES GREGORY III & SARAH L KEY LARGO NO 00573730-001500 BELL THOMAS D AND FRANCES RES TR DTD 2/2/2007 KEY LARGO ARGO NO 00573730-001600 BLAYLOCK M BRADLEY NO KEY LARGO NO CBRS/No Name Key Monroe County 2010 Comprehensive Plan Objectives and Policies Policy 101.12.4 Upon adoption of the Comprehensive Plan, Monroe County shall require that the following analyses be undertaken prior to finalizing plans for the siting of any new or the significant expansion (greater than 25 percent) of any existing public facility: 1. assessment of needs; 2. evaluation of alternative sites and design alternatives for the selected sites; and 3. assessment of direct and secondary impacts on surrounding land uses and natural resources. The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beachiberm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality hammocks and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, offshore islands, and Conservation Land Protection Areas. Obiective 102.8 Monroe County shall take actions to discourage private development in areas designated as units of the Coastal Barrier Resources System. [9J-5.006(3)(b)4] Policy 102.8.1 Monroe County shall discourage developments which are proposed in units of Coastal Barrier Resources System (CBRS) by methods including, but not limited to, negative points in the Permit Allocation and Point System (see Policy 101.5.4). (See Objectives 101.2, 101.3, and 101.5 and related polices) [9J-5.006(3)(c)6] Policy 102.8.4 By January 4, 1998, privately -owned undeveloped land located within the CBRS units shall be considered for acquisition by Monroe County for conservation purposes through the Monroe County Natural Heritage and Park Program. [9J-5.006(3)(c)6] Policy 102.8.5 Upon adoption of the Comprehensive Plan, Monroe County shall initiate efforts to discourage the extension of facilities and services provided by the Florida Keys Aqueduct Authority and private providers of electricity and telephone service to CBRS units. These efforts shall include providing each of the utility providers with: 1. a map of the areas of Monroe County which are included in CBRS units; 2. a copy of the Executive Summary in Report to Congress: Coastal Barrier Resources System published by the U.S. Department of the Interior, Coastal Barriers Study Group, which specifies restrictions to federally subsidized development in CBRS units; 3. Monroe County policies regarding local efforts to discourage both private and public investment in CBRS units; and 4. Monroe County regulations regarding development in CBRS units, including the Permit Allocation System regulations, which commits negative points for development in CBRS units. (See Policy 101.5.4.) [9J-5.006(3)(c)6] Policy 103.2.4 Upon adoption of the Comprehensive Plan, Monroe County shall require that the following analyses be undertaken prior to finalizing plans for the siting of any new public facilities or the significant expansion (greater than 25 percent) of existing public facilities: 1. assessment of needs 2. evaluation of alternative sites and design alternatives for the selected sites; and 3. assessment of impacts on surrounding land uses and natural resources. The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach/berm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality hammocks and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, offshore islands, and Conservation Land Protection Areas. Monroe County shall require that public facilities be developed on the least environmentally sensitive lands and shall prohibit the location of public facilities on North Key Largo, unless no feasible alternative exists and such facilities are required to protect the public health, safety, or welfare. Policy 215.2.3 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. [9J-5.012(3)(c)1] Policy 217.4.2 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. [9J-5.012(3)(c)1] Policy 1401.2.2 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. [9J-5.016(3)(c)l and 9] Monroe County Land Development Code Sec. 130-122. - Coastal barrier resources system overlay district. (a) Purpose. The purpose of the coastal barrier resources system overlay district is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to or through lands designated as a unit of the coastal barrier resources system. (b) Application. The coastal barrier resources system overlay district shall be overlaid on all areas, except for Stock Island, within federally designated boundaries of a coastal barrier resources system unit on current flood insurance rate maps approved by the Federal Emergency Management Agency, which are hereby adopted by reference and declared part of this chapter. Within this overlay district, the transmission and/or collection lines of the following types of public utilities shall be prohibited from extension or expansion: central wastewater treatment collection systems; potable water; electricity, and telephone and cable. This prohibition shall not preclude the maintenance and upgrading of existing public utilities in place on the effective date of the ordinance from which this section is derived and shall not apply to wastewater nutrient reduction cluster systems. (Code 1979, § 9.5-258, Ord. No. 43-2001, § 1) 0 01 aim A "n, i, "f N f Fit In Z t W A X 1HP o to 14 st 01 T 0 9 MIA Lit 4,1tt1 1 PIN I Rot i 1 eye H I I i I U low, aim IN 4 at 'all g%R N 5M WAS me, a 1"al � — — " IP, UH Nolai�w PNI" 4 t -o viol 11 yquNt: MN 4 M 1"IA Ep �`g R 54-41 Upwo yy yen; 4 a M, Po G juw"f Oulu W F I "AN , I q His 0 OR NVW H a 4, q 'Unrom 4), , ,,, - E � E nF1 a I , I W-0- "5 " pp- q q'i, uuun Uo" Movie 1p, g p A , K WHY" SNAM Jay, a 1"t low Q T j, OWN INO No go M, a A 0, 04 phQ, g, If tt. �p A V � -, , E Q oil RE jul lip C UK "M o A solo KV o"io . 9"Nit! . A �bb wq W, 61 is SIR MUM I i, 4i 15 W " I , , I n I ""I- T 14 'No lot U ti WH Win I'M 0 R "All oil PAt ..... ...... its, 102 11 A PH lot 1 p a po 6J 1 d Y, , 1, — " I H i Al a b Ar 'nu I A A 1',, rq i �I It LU V it Jill ap ti Ism no T" NEW 0,11UP, 11 MIST '' I , ", I 1"", '" ivy! 411 OR P A a, We: 309 T" 1 50 U a a' A 1" . in". opt "o "MA I low 1w w MY q, lop 5 so ay tr a Off T 01 HA "",a v UI Pal WN "M UK A or V V" P W—nd A "IAAL 12 MVal iluNOW tY" tooY0Ma I'uI, ­11 i I ') I501 NOT61Sa0A UT olp o,SAC,HVWSTpN" I- �I I " s, H;11I too, E H q J"v ,Mky0s, KPT olAUW uifhNQ ; p, oI i BOARD OF COUNTYCOMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: December 15, 2010 Division: No Name Key Bulk Item: Yes No X Department: Staff Contact Person/Phone #: Christine Hurley 289-2517 / Mark Rosch 295-5180 AGENDA ITEM WORDING: Consideration of a request to grant utility easements to the Utility Board of the City of Key West, Florida (Keys Energy Services) on four No Name Key properties. ITEM BACKGROUND: Keys Energy Services requests utility easements on four conservation lots on No Name Key owned by Monroe County. The subject properties are Tier I "ROGO" lots dedicated to the County pursuant to Comprehensive Plan Policy 101.5.4 (4) and Section 138-28(4) of the Land Development Regulations. Much of No Name Key and all of the subject lots are within a federally designated unit of the Coastal Barrier Resources System (CBRS). There are many comprehensive plan policies and one land development regulation addressing special reviews and growth control measures applicable to CBRS areas, including Policy 102.8.5 which discourages the extension of electrical service facilities to CBRS areas and Section 130-122, Monroe County Code, which prohibits the extension of electrical transmission lines to CBRS areas. Keys Energy Services has also requested a utility easement on a fifth conservation lot on No Name Key within the CBRS owned by the Monroe County Land Authority. Section 380.0666(3)(a), Florida Statutes, requires the Land Authority's activities to be consistent with the adopted Comprehensive Plan and Land Development Regulations. PREVIOUS RELEVANT BOCC ACTION: None. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Since the purpose of the utility easements is to facilitate the extension of the electrical grid to the CBRS area of No Name Key, staff views the request as inconsistent with the adopted Comprehensive Plan and Land Development Regulations and recommends denial. If the Board wishes to grant the requested easements, the Board should first amend the Comprehensive Plan and Land Development Regulations. TOTAL COST: INDIRECT COST: DIFFERENTIAL OF LOCAL PREFERENCE: BUDGETED: Yes No COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes No AMOUNT PER MONTH/YEAR APPROVED BY: County Atty OMB/Purchasing Risk Management DOCUMENTATION: Included Not Required _ DISPOSITION: AGENDA ITEM # lotM RECEIVED NOV 16 2010 (305) 295-1000 1001 James Street enemy PO Box 6100 Ser"Ces Key West, FL 33040-6100 www.KeysEnergy.com UTILITY BOARD OF THE CITY OF KEY WEST November 10, 2010 Mr. Mark]. Rosch Executive Director Monroe County Land Authority 1200 Truman Avenue, Suite 207 Key West, FL 33040 RE: No Name Key - Electrical Service Easements Dear Mr. Rosch: Keys Energy Services (KEYS) is in the final design stages for the installation of electrical facilities to various residences on No Name Key. There are five lots in the Peterson Subdivision that KEYS will require utility easements. These lots are owned by Monroe County and Monroe County Comprehensive Plan Land Authority. My research indicates that there currently exists a 1995 ingress/egress easement for the residences. The attached electrical utility easements that KEYS is requesting will limit the location of our electrical facilities to within the existing 1995 ingress/egress easement. Below is a list of the locations KEYS would need utility easements for: RE# Legal Description Ownership 00108130-002200 No Name Key PT Lot 5 (Lot 22 of an Monroe County unrecordedplat) 00108120-001500 No Name Key PT Lot 5 (Lot 15 of an Monroe County unrecordedplat) 00108120-001600 No Name Key PT Gov Lot 5 (Lot 16 of Monroe County an unrecordedplat) 00108130-002600 No Name Key PT Lot 5 ( Lot 26 of an Monroe County U/R Plat 00108120-000800 No Name Key PT Lot 5 (lot 8) Monroe County Comprehensive Plan Land Authori Thanks again for your assistance on this matter. If you have any question please call me at 305-295-1042. Sincerely, Dale Finigan Director of Engineering Da le. F i n ioa n (a) Kevs E ne ray. co m DF/ba c: L. Tejeda, General Manager & CEO J. Wetzler, Asst. General Manager & CFO M. Alfonso, Supervisor of Engineering File: ENG-150 This instrument was prepared by Barbara Archer Keys Energy Services, on 11/10/10. EASEMENT KNOW ALL MEN BY THESE PRESENTS, that MONROE COUNTY hereinafter called grantor (s) do hereby grant an easement to the UTILITY BOARD OF THE CITY OF KEY WEST, FLORIDA, hereinafter called grantee, for public utility purposes, in, under, over and across the hereinafter described land, in the management, operation, maintenance, extension, construction and improvement, thereof, to wit: On the Island of No Name Key in Monroe County, Florida LOT 22 ALTERNATE KEY 1127671 PARCEL ID 00108130-002200 SEE PROPERTY DESCRIPTION ATTACHED HERETO AND MADE PART HEREOF AS EXHIBIT "A". A GENERAL EASEMENT FOR THE INSTALLATION AND MAINTENANCE OF ONE POLE, OVERHEAD WIRING AND ALL APPUTENANCES NECESSARY. KEYS WILL MAINTAIN THE LINE WITHIN THE BOUNDARYS OF THAT EASEMENT FOR INGRESS AND EGRESS OVER PROPERTY DESCRIBED AND IS RECORDED IN OFFICIAL RECORDS BOOK 1367, PAGES 1247 TO 1251 OF THE OFFICIAL RECORDS OF MONROE COUNTY, FLROIDA. TOGETHER WITH THE RIGHT OF INGRESS AND EGRESS OVER PROPERTY OF THE GRANTOR(S), SO AS TO AFFORD THE GRANTEE COMPLETE USE AND ENJOYMENT OF THIS EASEMENT, INCLUDING THE RIGHT TO CUT AND TRIM, FROM TIME TO TIME, TREES, BRUSH, OVER- HANGING BRANCHES AND OTHER NATURAL OBSTRUCTIONS ON THE ABOVE DESCRIBED LAND, WHICH MAY INJURE OR INTERFERE WITH THE FULL AND COMPLETE USE OF THE AFORESAID EASEMENT. This easement shall terminate if at any time its use is discontinued for years. IN WITNESS WHEREOF, these presents have been executed by the grantor(s) herein, all as of the day of A.D. 20 Signed, Sealed and Delivered in the presence of: (Witness) (Witness) STATE OF COUNTY OF (Seal) (Seal) On , before me the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be the person(s) whose names subscribed to the within instrument and acknowledged that executed the same. Notary Public in and for said County And State EXHIBIT ""A" A parcel of land in part of Government Lot 5, Section 18, Township 66 South, Range 30 East, on No Name Key, Monroe County, Florida and being more particularly described by metes and bounds as follows: Commencing at the Northwest Corner of Government Lot 5, bear South, 343' feet; thence bear East 325' feet, to the POINT OF BEGINNING of the parcel of land hereinafter described; thence continue East, 60' feet; thence bear North, 141.50' feet to a canal; thence bear West, along said canal 60' feet, thence bear South 141.50' back to the POINT OF BEGINNING, subject to a 25' foot easement on the South side. (Also known as Lot 22 of an unrecorded Plat of the subject property) This instrument was prepared by Barbara Archer Keys Energy Services, on 11/10/10. EASEMENT KNOW ALL MEN BY THESE PRESENTS, that MONROE COUNTY hereinafter called grantor (s) do hereby grant an easement to the UTILITY BOARD OF THE CITY OF KEY WEST, FLORIDA, hereinafter called grantee, for public utility purposes, in, under, over and across the hereinafter described land, in the management, operation, maintenance, extension, construction and improvement, thereof, to wit: On the Island of No Name Key in Monroe County, Florida LOT 15 ALTERNATE KEY 8497121 PARCEL ID 00108120-001500 SEE PROPERTY DESCRIPTION ATTACHED HERETO AND MADE PART HEREOF AS EXHIBIT "A". A GENERAL EASEMENT FOR THE INSTALLATION AND MAINTENANCE OF ONE POLE, OVERHEAD WIRING AND ALL APPUTENANCES NECESSARY. KEYS WILL MAINTAIN THE LINE WITHIN THE BOUNDARYS OF THAT EASEMENT FOR INGRESS AND EGRESS OVER PROPERTY DESCRIBED AND IS RECORDED IN OFFICIAL RECORDS BOOK 1367, PAGES 1247 TO 1251 OF THE OFFICIAL RECORDS OF MONROE COUNTY, FLROIDA. TOGETHER WITH THE RIGHT OF INGRESS AND EGRESS OVER PROPERTY OF THE GRANTOR(S), SO AS TO AFFORD THE GRANTEE COMPLETE USE AND ENJOYMENT OF THIS EASEMENT, INCLUDING THE RIGHT TO CUT AND TRIM, FROM TIME TO TIME, TREES, BRUSH, OVER- HANGING BRANCHES AND OTHER NATURAL OBSTRUCTIONS ON THE ABOVE DESCRIBED LAND, WHICH MAY INJURE OR INTERFERE WITH THE FULL AND COMPLETE USE OF THE AFORESAID EASEMENT. This easement shall terminate if at any time its use is discontinued for years. IN WITNESS WHEREOF, these presents have been executed by the grantor(s) herein, all as of the day of A.D. 20 Signed, Sealed and Delivered in the presence of: (Witness) (Witness) STATE OF COUNTY OF (Seal) (Seal) On , before me the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be the person(s) whose names subscribed to the within instrument and acknowledged that executed the same. SEAL Notary Public in and for said County And State EXHIBIT "A" A parcel of land in part of Government Lot 5, Section 18, Township 66 South, Range 30 East, on No Name Key, Monroe County, Florida and being more particularly described by metes and bounds as follows: Commencing at the Northwest Corner of Government Lot 5, bear East, 85' feet to the POINT OF BEGINNING of the parcel of land hereinafter described; thence continue East, 60' feet; thence bear South, 141.50' feet to a canal; thence bear West, along said canal 60' feet, thence bear North 141.50' back to the POINT OF BEGINNING, subject to a 25' foot easement on the North side. (Also known as Lot 15 of an unrecorded Plat of the subject property) This instrument was prepared by Barbara Archer Keys Energy Services, on 11/10/10. EASEMENT KNOW ALL MEN BY THESE PRESENTS, that Yl� � ' •�_I�1►111'1 hereinafter called grantor (s) do hereby grant an easement to the UTILITY BOARD OF THE CITY OF KEY WEST, FLORIDA, hereinafter called grantee, for public utility purposes, in, under, over and across the hereinafter described land, in the management, operation, maintenance, extension, construction and improvement, thereof, to wit: On the Island of No Name Key in Monroe County, Florida LOT 16 ALTERNATE KEY 8497130 PARCELID 00108120-001600 SEE PROPERTY DESCRIPTION ATTACHED HERETO AND MADE PART HEREOF AS EXHIBIT "A". A GENERAL EASEMENT FOR THE INSTALLATION AND MAINTENANCE OF ONE POLE, OVERHEAD WIRING AND ALL APPUTENANCES NECESSARY. KEYS WILL MAINTAIN THE LINE WITHIN THE BOUNDARYS OF THAT EASEMENT FOR INGRESS AND EGRESS OVER PROPERTY DESCRIBED AND RECORDED IN OFFICIAL RECORDS BOOK 1367, PAGES 1247 TO 1251 OF THE OFFICIAL RECORDS OF MONROE COUNTY, FLROIDA. TOGETHER WITH THE RIGHT OF INGRESS AND EGRESS OVER PROPERTY OF THE GRANTOR(S), SO AS TO AFFORD THE GRANTEE COMPLETE USE AND ENJOYMENT OF THIS EASEMENT, INCLUDING THE RIGHT TO CUT AND TRIM, FROM TIME TO TIME, TREES, BRUSH, OVER- HANGING BRANCHES AND OTHER NATURAL OBSTRUCTIONS ON THE ABOVE DESCRIBED LAND, WHICH MAY INJURE OR INTERFERE WITH THE FULL AND COMPLETE USE OF THE AFORESAID EASEMENT. This easement shall terminate if at any time its use is discontinued for years. IN WITNESS WHEREOF, these presents have been executed by the grantor(s) herein, all as of the day of A.D. 20 Signed, Sealed and Delivered in the presence of: (Witness) (Witness) STATE OF COUNTY OF (Seal) (Seal) On before me the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be the person(s) whose names subscribed to the within instrument and acknowledged that executed the same. SEAL Notary Public in and for said County And State EXHIBIT ""A" A parcel of land in part of Government Lot 5, Section 18, Township 66 South, Range 30 East, on No Name Key, Monroe County, Florida and being more particularly described by metes and bounds as follows: Commencing at the Northwest Corner of Government Lot 5, bear East, 25' feet to the POINT OF BEGINNING of the parcel of land hereinafter described; thence continue East 60' feet; thence bear South, 141.50' feet to a canal; thence bear West, along said canal, 35' feet; thence bear South, along said canal, 30' feet; thence bear West, 25' feet; thence bear North, 171.50' feet, back to the POINT OF BEGINNING, subject, to a 25' foot easement on the North side. (Also known as Lot 16 of an unrecorded Plat of the subject property) This instrument was prepared by Barbara Archer Keys Energy Services, on 11/10/10. EASEMENT KNOW ALL MEN BY THESE PRESENTS, that MONROE COUNTY hereinafter called grantor (s) do hereby grant an easement to the UTILITY BOARD OF THE CITY OF KEY WEST, FLORIDA, hereinafter called grantee, for public utility purposes, in, under, over and across the hereinafter described land, in the management, operation, maintenance, extension, construction and improvement, thereof, to wit: On the Island of No Name Key in Monroe County, Florida LOT 26 — ALTERNATE KEY 8497202 PARCEL ID 00108130-002600 SEE PROPERTY DESCRIPTION ATTACHED HERETO AND MADE PART HEREOF AS EXHIBIT "A". A GENERAL EASEMENT FOR THE INSTALLATION AND MAINTENANCE OF ONE POLE, OVERHEAD WIRING AND ALL APPUTENANCES NECESSARY. KEYS WILL MAINTAIN THE LINE WITHIN THE BOUNDARYS OF THAT EASEMENT FOR INGRESS AND EGRESS OVER PROPERTY DESCRIBED AND IS RECORDED IN OFFICIAL RECORDS BOOK 1367, PAGES 1247 TO 1251 OF THE OFFICIAL RECORDS OF MONROE COUNTY, FLROIDA. TOGETHER WITH THE RIGHT OF INGRESS AND EGRESS OVER PROPERTY OF THE GRANTOR(S), SO AS TO AFFORD THE GRANTEE COMPLETE USE AND ENJOYMENT OF THIS EASEMENT, INCLUDING THE RIGHT TO CUT AND TRIM, FROM TIME TO TIME, TREES, BRUSH, OVER- HANGING BRANCHES AND OTHER NATURAL OBSTRUCTIONS ON THE ABOVE DESCRIBED LAND, WHICH MAY INJURE OR INTERFERE WITH THE FULL AND COMPLETE USE OF THE AFORESAID EASEMENT. This easement shall terminate if at any time its use is discontinued for years. IN WITNESS WHEREOF, these presents have been executed by the grantor(s) herein, all as of the day of A.D. 20 Signed, Sealed and Delivered in the presence of: (Witness) (Witness) STATE OF COUNTY OF (Seal) (Seal) On , before me the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be the person(s) whose names subscribed to the within instrument and acknowledged that executed the same. SEAL Notary Public in and for said County And State EXHIBIT IRA" A parcel of land in part of Government Lot 5, Section 18, Township 66 South, Range 30 East, on No Name Key, Monroe County, Florida and being more particularly described by metes and bounds as follows: Commencing at the Northwest Corner of Government Lot 5, bear South, 343' feet; thence bear East 565' feet to the POINT OF BEGINNING of the parcel of land thereinafter described; thence continue East, 60' feet; thence North 141.50' feet to a canal; thence bear West, along said canal 60' feet thence bear South 141.50' feet, back to the POINT OF BEGINNING. Subject to a 25' foot easement on the South side (Also known as Lot 26 of an unrecorded Plat of the subject property) This instrument was prepared by Barbara Archer Keys Energy Services, on 11/10/10. EASEMENT KNOW ALL MEN BY THESE PRESENTS, that MONROE COUNTY COMPREHENSIVE PLAN LAND AUTHORITY hereinafter called grantor (s) do hereby grant an easement to the UTILITY BOARD OF THE CITY OF KEY WEST, FLORIDA, hereinafter called grantee, for public utility purposes, in, under, over and across the hereinafter described land, in the management, operation, maintenance, extension, construction and improvement, thereof, to wit: On the Island of No Name Key in Monroe County, Florida LOT 8 ALTERNATE KEY 1127621 PARCEL ID 00108120-000800 SEE PROPERTY DESCRIPTION ATTACHED HERETO AND MADE PART HEREOF AS EXHIBIT "A". A GENERAL EASEMENT FOR THE INSTALLATION AND MAINTENANCE OF ONE POLE, OVERHEAD WIRING AND ALL APPUTENANCES NECESSARY. KEYS WILL MAINTAIN THE LINE WITHIN THE BOUNDARYS OF THAT EASEMENT FOR INGRESS AND EGRESS OVER PROPERTY DESCRIBED AND IS RECORDED IN OFFICIAL RECORDS BOOK 1367, PAGES 1247 TO 1251 OF THE OFFICIAL RECORDS OF MONROE COUNTY, FLRRIDA. TOGETHER WITH THAT EASEMENT FOR INGRESS AND EGRESS OVER PROPERTY DESCRIBED AND IS RECORDED IN OFFICIAL RECORDS BOOK 2047, PAGE 2469 OF THE OFFICIAL RECORDS OF MONROE COUNTY, FLORIDA TOGETHER WITH THE RIGHT OF INGRESS AND EGRESS OVER PROPERTY OF THE GRANTOR(S), SO AS TO AFFORD THE GRANTEE COMPLETE USE AND ENJOYMENT OF THIS EASEMENT, INCLUDING THE RIGHT TO CUT AND TRIM, FROM TIME TO TIME, TREES, BRUSH, OVER- HANGING BRANCHES AND OTHER NATURAL OBSTRUCTIONS ON THE ABOVE DESCRIBED LAND, WHICH MAY INJURE OR INTERFERE WITH THE FULL AND COMPLETE USE OF THE AFORESAID EASEMENT. This easement shall terminate if at any time its use is discontinued for years. IN WITNESS WHEREOF, these presents have been executed by the grantor(s) herein, all as of the day of A.D. 20 Signed, Sealed and Delivered in the presence of: (Witness) (Seal) (Witness) (Seal) STATE OF COUNTY OF On , before me the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be the person(s) whose names subscribed to the within instrument and acknowledged that executed the same. Notary Public in and for said County And State EXHIBIT ""A" A parcel of land in part of Government Lot 5, Section 18, Township 66 South, Range 30 East, on No Name Key, Monroe County, Florida and being more particularly described by metes and bounds as follows: Commencing at the Northwest Corner of Government Lot 5, bear East, 505' feet to the POINT OF BEGINNING of the parcel of land hereinafter described; thence continue East 60' feet; thence bear South, 141.50' feet to a canal; thence bear West, along said canal, 60' feet; thence bear North, 141.50' feet, back to the POINT OF BEGINNING, subject to a 25' foot Easement on the North side. (Also known as Lot 8 of an unrecorded Plat of the subject property) Keys Energy Services Request for Aerial Easements on Monroe County and Monroe County Land Authority Property No Name Key O n Z j 2 I� 52 0 no z kid 1 d Z o ^ I sS \r )sftits sett s v t 1. 3.w:. ca 1-4 ..c �c f, W V W Q Q (J J QLUt b 0 WLU J Z W = W LU W a a a 3 0 Monroe County Year 2010 Comprehensive Plan Policy Document Revised 01/27/10 Includes Revisions 1 -14 As Adopted by the Board of County Commissioners on April 15, 1993 amended pursuant to DCA Rule 9J-14.022, January 4, 1996 and adopted by FAC Rule 28-20.100 Part I, January 2, 1996 and Part II, July 14, 1997 Table of Contents Objective 101.12 Monroe County shall ensure that sufficient acreage is available for utilities and public facilities, including education and public health facilities, required to support proposed development and redevelopment. [9J-5.006(3)(b)8] Policy 101.12.1 By January 4, 1997, Monroe County shall adopt a Concurrency Management System in accordance with Policy 1401.4.5 of the Capital Improvements Element to ensure that facilities required to provide utility services to new development in order to maintain adopted LOS standards are authorized at the same time that new development is authorized. [9J-5.006(3)(c)3] Policy 101.12.2 Monroe County shall, on an annual basis during the preparation of the Concurrency Management Report, coordinate with the Municipal Services District, the Florida Keys Aqueduct Authority, City Electric System and the Florida Keys Electric Cooperative to determine the acreage and location of land needed to accommodate projected service expansions. [9J-5.006(3)(c)3] Policy 101.12.3 Monroe County shall, on an annual basis during the preparation of the Concurrency Management Report, coordinate with the Monroe County School Board, Fire Marshall and Sheriffs Department to identify potential acquisition sites required to accommodate projected expansions in education and public service facilities. [9J-5.006(3)(c)3] Policy 101.12.4 Monroe County shall require that the following analyses be undertaken prior to finalizing plans for the siting of any new or the significant expansion (greater than 25 percent) of any existing public facility: 1. assessment of needs; 2. evaluation of alternative sites and design alternatives for the alternative sites; and, 3. assessment of direct and secondary impacts on surrounding land uses and natural resources. The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach berm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality hammock and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, offshore islands, and designated Tier I areas. Except for passive recreational facilities on publicly -owned land, no new public community or utility facility other than water distribution and sewer collection lines or pump/vacuum/lift stations shall be allowed within Tier I designated areas or Tier III Special Protection Area unless it can be accomplished without clearing of hammock or pinelands. Exceptions to this requirement may be made to protect the public health, safety, and welfare, if all the following criteria are met: Goals, Objectives and Policies — Future Land Use 3.1-39 No reasonable alternatives exist to the proposed location; and 2. The proposed location is approved by a supermajority of the Board of County Commissioners. The site of the Key Largo Wastewater Treatment Facility (located at mile marker 100.5) with an allowed clearing of up to 4.2 acres shall not be subject to this policy. Policy 101.12.5 Monroe County shall coordinate the siting of new public facilities with the appropriate local, state and federal agencies to resolve potential regulatory conflicts and ensure compliance with all applicable state and federal regulations. [9J-5.006(3)(c)2 and 6] (The remainder of this page left intentionally blank.) Objective 101.13 Monroe County shall adopt innovative Land Development Regulations which implement the Goals, Objectives and Policies of the Comprehensive Plan. Such regulations shall include a Permit Allocation System for residential and non-residential development and revisions to the existing Transferable Development Rights (TDR) regulations to address existing deficiencies in the TDR program. [9J-5.006(b)9] Policy 101.13.1 By January 4, 1997, Monroe County shall adopt Land Development Regulations which establish a Permit Allocation and Point System for new residential and non-residential development (See Policies 101.2.1, 101.3.1, and 101.5.1). Policy 101.13.2 By January 4, 1998, Monroe County shall evaluate the existing TDR program and adopt Land Development Regulations which address identified deficiencies in the program. The following issues shall be considered in evaluating the program: revision to the current tax policy whereby owners of sites which have transferred development rights continue to pay taxes on such rights until development orders have been issued for the transferred rights at the receiver sites; 2. establishment of criteria for designation of sender and receiver sites based upon factors such as the environmental characteristics of the land; 3. establishment of mechanisms to enhance the value and marketability of TDRs such as assigning density bonuses to receiver sites; 4. clarification of the status of sites which have transferred development rights, including the possible requirements that sender sites be dedicated as public or private open space through conservation easement or other mechanism. At a minimum, the LDRs shall be revised to require that a restrictive covenant be recorded on the sender site deed at the time of the Allocation Award for the Permit Allocation System; and 5. establishment of a management and accounting system to tract TDRS Goals, Objectives and Policies — Future Land Use 3.1-40 Objective 102.8 Monroe County shall take actions to discourage private development in areas designated as units of the Coastal Barrier Resources System. [9J-5.006(3)(b)4] Policy 102.8.1 Monroe County shall discourage developments which are proposed in units of Coastal Barrier Resources System (CBRS) [9J-5.006(3)(c)6] Policy 102.8.2 Upon adoption of the Comprehensive Plan, Monroe County shall not create new access via new bridges, new causeways, new paved roads or new commercial marinas to or on units of the Coastal Barrier Resources System (CBRS). [9J-5.005(3)(c)6] Policy 102.8.3 By January 4, 1997, shoreline hardening structures, including seawalls, bulkheads, groins, rip -rap, etc., shall not be permitted along shorelines of CBRS units. [9J-5.006(3)(c)6] Policy 102.8.4 By January 4, 1998, privately -owned undeveloped land located within the CBRS units shall be considered for acquisition by Monroe County for conservation purposes through the Monroe County Natural Heritage and Park Program. [9J-5.006(3)(c)6] Policy 102.8.5 Monroe County shall efforts to discourage the extension of facilities and services provided by the Florida Keys Aqueduct Authority and private providers of electricity and telephone service to CBRS units. These efforts shall include providing each of the utility providers with: 1. a map of the areas of Monroe County which are included in CBRS units; 2. a copy of the Executive Summary in Report to Congress: Coastal Barrier Resources System published by the U.S. Department of the Interior, Coastal Barriers Study Group, which specifies restrictions to federally subsidized development in CBRS units; 3. Monroe County policies regarding local efforts to discourage both private and public investment in CBRS units [9J-5.006(3)(c)6] (The remainder of this page left intentionally blank.) Goals, Objectives and Policies — Future Land Use 3.1-62 Objective 103.2 Monroe County, in coordination with the FWS, shall regulate future development and coordinate the provision of public facilities in North Key Largo consistent with the Goals, Objectives and Policies of this Comprehensive Plan in order to maintain the rural and open space character of North Key Largo, as well as to preserve and enhance the habitat of four (4) species of animals listed as endangered under the Endangered Species Act, including the American crocodile (Crocodylus acutus), the Key Largo wood rat (Neotoma floridana smalls), the Key Largo cotton mouse (Peromyscus gossypinus allapatico/a), and the Schaus swallowtail butterfly (Heraclides aristodemus ponceanus). North Key Largo is defined as that portion of Key Largo Located between the junction of State Road 905 and U.S. Highway 1 and the Dade County boundary at Angelfish Creek. [9J-5.006(3)(b)1 and 4] Policy 103.2.1 Monroe County shall implement methods including, but not limited to, designating known habitat of the Schaus swallowtail butterfly as Tier I. [9J-5.012(3)(c)l ; 9J-5.013(2)(c)5 and 6] Policy 103.2.3 By January 4, 1997, Monroe County shall adopt revisions to the Land Development Regulations pertaining to development siting and clustering so as to avoid impacts on sensitive habitats and to provide for the retention of contiguous open space by requiring the following: when a parcel proposed for development contains more than one (1) habitat type, all development shall be clustered on the least sensitive portion(s) of the parcel (as is currently required); and 2. development permitted on the least sensitive portion(s) of a parcel shall be clustered within that portion(s) of the parcel. (See Conservation and Coastal Management Policy 205.2.3.) [9J-5.013(2)(c)3] Policy 103.2.4 Upon adoption of the Comprehensive Plan, Monroe County shall require that the following analyses be undertaken prior to finalizing plans for the siting of any new public facilities or the significant expansion (greater than 25 percent) of existing public facilities: assessment of needs 2. evaluation of alternative sites and design alternatives for the selected sites; and 3. assessment of impacts on surrounding land uses and natural resources. The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach/berm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality hammocks and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, offshore islands, and Conservation Land Protection Areas. Monroe County shall require that public facilities be developed on the least environmentally sensitive lands and shall prohibit the location of public facilities on North Key Largo, unless no feasible alternative exists and such facilities are required to protect the public health, safety, or welfare. Goals, Objectives and Policies — Future Land Use 3.1-66 Policy 103.2.5 Monroe County shall monitor FKAA compliance with federal regulations prohibiting potable water hookups to designated habitat areas of the American crocodile, the Key Largo wood rat, the Key Largo cotton mouse, and the Schaus swallowtail butterfly (pursuant to FKAA Rules Chapter48-7). [9J-5.012(3)(c)1; 9J-5.013(2)(c)5 and 6] Policy 103.2.6 Monroe County shall implement activities to protect the habitat and prohibit the destruction of the: American crocodile (See Conservation and Coastal Management Objective 207.8 and supporting policies); 2. Schaus swallowtail butterfly (See Conservation and Coastal Management Objective 207.10 and related policies); and 3. the Key Largo wood rat and the Key Largo cotton mouse (See Conservation and Coastal Management Objective 207.12 and related policies.) 9J-5.012(3)(b)1; 9J- 5.013(2)(b)6] Policy 103.2.7 Monroe County shall identify native upland habitats used by the Schaus swallowtail butterfly and the Key Largo wood rat and the Key Largo cotton mouse as priority acquisition sites for conservation purposes. Emphasis shall be placed upon acquisition of native upland sites which are located within Improved Subdivisions and which are outside of the acquisition areas identified by the FWS (for the Crocodile Lake National Wildlife Refuge), and DNR (for the Key Largo Hammock CARL Project). Acquisition shall be considered through the Monroe County Natural Heritage and Park Program. (See Objective 102.4 and related policies.) [9J-5.012(3)(c)1; 9J-5.013(2)(c)5 and 6] Policy 103.2.8 By January 4, 1998, Monroe County shall complete and implement a cooperative land management program for private and county -owned lands located within and adjacent to state and federal government -owned parks and conservation lands which are within or affected by land uses in North Key Largo, including: Crocodile Lake National Wildlife Refuge; 2. John Pennekamp Coral Reef State Park; 3. North Key Largo Hammock State Botanical Site and CARL Project; and 4. Biscayne Bay - Card Sound State Aquatic Preserve. (See Objective 102.9 and related policies.) [9J-5.006(3)(b)4] Policy 103.2.9 Monroe County shall support, wherever possible, the efforts of federal agencies, state agencies, and private non-profit conservation organizations, to acquire land for conservation purposes within North Key Largo. [9J-5.012(3)(c)1; 9J-5.013(2)(c)5 and 6] Policy 103.2.10 Goals, Objectives and Policies — Future Land Use 3.1-67 Monroe County shall take immediate actions to discourage private development in areas designated as units of the Coastal Barrier Resources System. (See Objective 102.8 and related policies.) [9J-5.006(3)(b)4] Policy 103.2.11 Prior to issuing a building permit or development approval, Monroe County shall require an archaeological/historical review of the proposed development site, performed by a qualified professional familiar with Monroe County. The review will identify the potential development impacts on any resources present, and will recommend mitigation measures, if any. Policy 103.2.12 Prior to issuing a building permit or development approval, Monroe County shall require that the Monroe County Biologist visit the site of all development approval and building permit applications within North Key Largo to assess the need for any federal or state permits. Policy 103.2.13 Prior to issuing a building permit or development approval, Monroe County shall require all applicants to obtain all federal and state permits, including, but not limited to, required permits pertaining to endangered species as required by the U.S. Fish and Wildlife Service and the Florida Game and Fresh Water Fish Commission. Policy 103.2.14 Monroe County, in conjunction with the FWS, shall implement activities to prohibit the destruction of the federally -designated threatened and endangered species and to protect its habitat by addressing: enforcement of animal control laws; 2. construction of fences; 3. roadside management techniques; 4. feeding laws; 5. speed limit enforcement; 6. removal of invasive plants; 7. distribution of management guidelines to private landowners; and 8. attainment of endangered species management objectives. (The remainder of this page left intentionally blank.) Goals, Objectives and Policies — Future Land Use 3.1-68 Objective 209.3 Monroe County shall take immediate actions to discourage private development in areas designated as units of the Coastal Barrier Resources System (CBRS). (See Future Land Use Objective 102.8 and related policies.) [9J-5.012(3)(b)1] (The remainder of this page left intentionally blank.) Goals, Objectives and Policies — Conservation and Coastal Management 3.2-73 Objective 215.2 By January 4, 1997, Monroe County shall initiate programs which require exploration of feasible alternatives to funding of public facilities and infrastructure which will result in the loss of or damage to significant coastal or natural resources, including, but not limited to, wilderness areas, wildlife habitats, and natural vegetative communities. [9J-5.012(2)(b)11] Policy 215.2.1 By January 4, 1997, Monroe County shall adopt Land Development Regulations which require consideration of feasible design and siting alternatives for new public facilities and infrastructure proposed within the coastal zone in order to minimize adverse impacts to natural resources. [9J-5.012(3)(c)1] Policy 215.2.2 Monroe County shall limit public expenditure on the mainland to the repair and maintenance of existing public facilities and infrastructure. [9J-5.012(3)(c)9] Policy 215.2.3 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. [9J-5.012(3)(c)1] (The remainder of this page left intentionally blank.) Goals, Objectives and Policies — Conservation and Coastal Management 3.2-103 Objective 217.4 With the following exceptions, public expenditures within the CHHA shall be limited to the restoration or enhancement of natural resources and parklands, expenditures required to serve existing development such as the maintenance or repair of existing infrastructure, and expenditures necessary for public health and safety: public expenditures within the CHHA may be permitted where required to meet adopted level of service standards or to maintain or reduce hurricane evacuation clearance times and where no feasible alternatives to siting the required facilities within the CHHA exist. 2. public expenditures within the CHHA may be permitted for improvements and expansions to existing public facilities, which improvements or expansions are designed to minimize risk of damage from flooding. [9J-5.012(3)(b)5] Policy 217.4.1 By January 4, 1997, Monroe County shall adopt Land Development Regulations which limit public expenditures in the CHHA by requiring consideration of feasible siting and design alternatives for public facilities and infrastructure. [9J-5.012(3)(c)3] Policy 217.4.2 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. [9J-5.012(3)(c)1] (The remainder of this page left intentionally blank.) Goals, Objectives and Policies — Conservation and Coastal Management 3.2-114 Policy 1301.7.12 By January 4, 1998, Monroe County shall initiate discussions with the FKAA and providers of electricity and telephone service to assess the measures which could be taken to discourage or prohibit extension of facilities and services to Coastal Barrier Resource Systems (CBRS) units. [9J-5.006(3)(c)6] Policy 1301.7.13 Monroe County shall encourage and participate in the development and implementation of pollution response plans. These shall include participation in an oil response team (See Policy 207.8.6), and plans for hazardous materials emergencies (See Policy 801.5.2). Policy 1301.7.14 Monroe County shall, by January 4, 1998, identify the technical assistance available from the U.S. Department of Agriculture, Soil Conservation Service for development and implementation of a soil erosion and sedimentation control program. Policy 1301.7.15 Monroe County shall coordinate with DNR and encourage total acquisition of North Key Largo under the CARL program. Policy 1301.7.16 The Monroe County Growth Management Division shall continue its active involvement with the ongoing Florida Keys interagency committee. Through this established process, Monroe County shall solicit comments from and offer comments to DER, DNR, NOAA, SFWMD, USFWS, FGFWFC, ACOE and DCA on permitting, planning, regulatory revisions, and other agency -related issues. (The remainder of this page left intentionally blank.) Goals, Objectives and Policies — Intergovernmental Coordination 3.13-13 Objective 1401.2 With the following exceptions, public expenditures within the Coastal High Hazard Area (CHHA) shall be limited to the restoration or enhancement of natural resources and parklands, expenditures required to serve existing development such as the maintenance or repair of existing infrastructure, and expenditures necessary for public health and safety: public expenditures within the CHHA may be permitted where required to meet adopted level of service standards or to maintain or reduce hurricane evacuation clearance times and where no feasible alternatives to siting the required facilities within the CHHA exist. 2. public expenditures within the CHHA may be permitted for improvements and expansions to existing public facilities, which improvements or expansions are designed to minimize risk of damage from flooding. [9J-5.016(3)(b)2] Policy 1401.2.1 By January 4, 1997, Monroe County shall adopt Land Development Regulations which limit public expenditures in the CHHA by requiring consideration of feasible siting and design alternatives for public facilities and infrastructure. [9J-5.016(3)(c)1 and 9] Policy 1401.2.2 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. [9J-5.016(3)(c)1 and 9] (The remainder of this page left intentionally blank.) Goals, Objectives and Policies — Capital Improvements 3.14-3 ARTICLE IV. - OVERLAY DISTRICTS (a) Purpose. The purpose of the coastal barrier resources system overlay district is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to or through lands designated as a unit of the coastal barrier resources system. (b) Application. The coastal barrier resources system overlay district shall be overlaid on all areas, except for Stock Island, within federally designated boundaries of a coastal barrier resources system unit on current flood insurance rate maps approved by the Federal Emergency Management Agency, which are hereby adopted by reference and declared part of this chapter. Within this overlay district, the transmission and/or collection lines of the following types of public utilities shall be prohibited from extension or expansion: central wastewater treatment collection systems; potable water; electricity, and telephone and cable. This prohibition shall not preclude the maintenance and upgrading of existing public utilities in place on the effective date of the ordinance from which this section is derived and shall not apply to wastewater nutrient reduction cluster systems. (Code 1979, § 9.5-258; Ord. No. 43-2001, § 1) http: library.municode.com.HTML 114298'level3 PTIILADE CH130LAUSDI ARTIVOVDI.html 11 3'2010 4:27:24 PM F' W LLf a LL all x�3 0 a E A tll to to 6 w i. 0. Ul C Ul L !� 50 L C Fu 16 u µp Z '�+' } FFoce, .s "-'� 'y. "i, � `� � c GG J • -c T .G % -� 'may i4 Ca Sla. rd E ^,9 7 c uYrz iRLL LL, [c c E� M u a r �. € Z E� P ,a � y c ra �' C C9.-L1! u.. ro j e Y e c. rz "` `m - q 02 Y u a -may 22 Z —45 C a gE NMaLL�j x' Z S Z Z Z 2 Z Z F R Z +�VA VA ' 0O 043 Q p 0O ' d, c a„ ik i> 6 ✓p Ve ur eo L g E1 L 3 KEY DEER PROTECTION ALLIANCE, INC. P.O. Box 430224 Big Pine Key, Florida 33043-0224 December 15, 2010 BOCC Regular Meeting — Marathon, Florida Agenda Items: J1, J2 and J3 Mayor Carruthers & Board of County Commissioners: The Key Deer Protection Alliance is opposed to any amendments to the Monroe County Code or the Comprehensive Land Use Plan which would allow the extension of utilities into areas designated as Coastal Barrier Resources System units throughout Monroe County. (Ninety- five percent 195 0] of No Name Key is within CBRS unit FL-50.) Approximately one -sixth of No Name, nearly Zoo acres, is undeveloped land in private ownership. History shows us that provision of infrastructure leads to increased development. There is no way to ensure otherwise. The current rules and regulations aimed at discouraging new development on this island are not carved in stone. The current proposal to extend commercial electricity to No Name concerns us deeply, as habitat fragmentation and loss of habitat are the primary threats to the continued existence of the Key deer. The effect of changing the Code and the Comprehensive Land Use Plan would ultimately have negative direct and indirect impacts on the Key deer and the other six federally listed endangered species with habitat on this island. The rare and critically important habitat of No Name Key deserves maximum protection under our laws. The Key Deer Protection Alliance Board believes nothing has been brought forward to demonstrate a compelling reason to amend the Monroe County Code or the Comprehensive Land Use Plan. Please vote "No" to any such proposed changes. Sincerely, Jerry Dykhuisen, President TO: MONROE COUNTY COMMISSIONERS FROM: FRANKLIN ATWELL BAHIA SHORES ROAD NO NAME KEY, FLORIDA 33043 RE: ELECTRIC SERVICE ON NO NAME KEY DATE: DECEMBER 15, 2010 Agenda item J-1: A vote for this agenda item is to abdicate the Commission's responsibility for which they/you were elected. Do not pass the buck to the courts. That would be a copout. Agenda item J-2: A vote for any option presented other than option 3, would be tantamount to a declaration that the plans and rules decided by the BOCC are not worth the paper they are printed on. Amending the comprehensive plan which applies to the whole county, to accommodate a small special interest, is an open invitation to any other interest to justify their wants using this as precedent. unless you approve option 3 you will demonstrate what any 3 year old knows; If you whine loud enough and long enough, the county will cave. Agenda item J-3: I would hope that the BOCC follows the staff recommendations and denies the easements. l a/ 5/10 ISLAND OF KEY LARGO FEDERATION OF HOMEOWNER ASSOCIATIONS INC. PO BOX 702 KEY LARGO, FL 33037 BUTTONWOOD BAY HOMEOWNER ASSOC., CAPTAIN JAX HOMEOWNERS ASSOC., HOMEOWNERS ASSOC. OF CORAL COAST, GATEWAY -TO -THE -SEA HOMEOWNERS ASSOC., HAMMER POINT HOMEOWNERS ASSOC., HIBISCUS PARK HOMEOWNERS ASSOC., KEY LARGO VILLAGE HOMEOWNERS ASSOC., LARGO SOUND PARK CLUB INC HOMEOWNERS ASSOC., PIRATES COVE PROPERTY OWNERS AND BOATING ASSOC. INC., PORT LARGO RESIDENTIAL HOMEOWNERS ASSOC., ROCK HARBOR CLUB CONDOMINIUM ASSOC., ROCK HARBOR ESTATES HOMEOWNERS ASSOC., SEXTON COVE HOMEOWNERS ASSOC. SILVER SHORES HOMEOWNERS ASSOC., STILLWRIGHT PROPERTY OWNER'S ASSOC. TAYLOR CREEK VILLAGE HOMEOWNERS ASSOC., THE HARBORAGE HOMEOWNERS ASSOC.,WYNKEN BLYNKEN & NOD HOMEOWNERS ASSOC. "Never doubt that a small group of committed citizens can change the world. Indeed. it is the only thing that ever has." Margaret Mead December 15, 2010 Monroe County Commissioners, Legal Staff, Growth Management Monroe County Government Center Marathon, Florida 33052 Re: COUNTY ATTORNEY - Agenda Item Q. 7. Discussion and direction to staff to initiate the process to adopt an Ordinance that requires a 4/5 vote of the Board of County Commissioners to approve any ordinance that adopts, amends, repeals, or otherwise changes the Land Development Code and the Comprehensive Plan THIS IS A LETTER OF SUPPORT FOR COMMISSIONER SYLVIA MURPHY'S EFFORTS IN HER PROPOSEL TO ADOPT AN ORDINANCE REQUIRING A 4/5 VOTE BY THE COUNTY COMMISSION ON ANY PROPOSED CHANGE TO THE LAND DEVELOPMENT CODE AND THE COMPREHENSIVE PLAN. Thank you. Ron Miller, President The Solar Community of No Name Key IL934 No Name Drive No Name Key, Florida 33043 Regular BOCC Meeting 12/15/2010 Marathon, Florida Agenda Items J1, J2 and J3 Dear Mayor Caruthers and Fellow County Commissioners: The Solar Community of No Name Key prepared the two booklets I am now holding up. They contain some of the many documents on the issue of extending utilities to No Name Key, which, as you know, lies within the boundaries of the federally designated Coastal Barrier Resources System Unit FL -so. Each Commissioner has a copy of each booklet. We will now give a copy of each summary booklet to the Clerk of the Court, Mr. Kohlage. Throughout all of these documents there is one single and consistent message from Monroe County, the Florida Department of Community Affairs and the Circuit Court of Monroe County — the Comprehensive Land Use Plan has authority over this issue and allowing the extension of utilities to No Name Key would be inconsistent with the Monroe County Comprehensive Land Use Plan and Code, and Chapters 163 and 38o of the Florida Statutes. Nowhere in all of these documents is there one statement written by the County, the DCA or the Count to suggest this issue is complicated or fuzzy. Therefore, there is no justification or basis for considering a complicated, expensive and unnecessary course of legal action by you. And, there is no justification or basis for considering amendments to the Land Use Plan or the Monroe County Code. Typically, under these circumstances, the local government would deny the requested approval for easements over County -owned conservation lots, and then, if a parry "N%rith standing" disputes the governmental action, that party would sue the County by way of a Declaratory Judgment. As you know, a Declaratory Judgment Action is a lawsuit, against a specific Defendant, which asks the Court to declare that the Plaintiffs view of the law and facts are correct. We would respectfully ask the Mayor to ask the County Attorney a question we feel is relevant to your decision of whether or not to file a Declaratory Judgment in the issue of extending utilities to No Name Key. That question is: "Who is going to be the Defendant in this proposed legal action?" Are all of the property owners on No Name Key going to be Defendants? Are all of the taxpayers of this County going to be Defendants? Is every potential parry that could be affected by the Declaratory Judgment decision going to be a Defendant against Monroe County? If the answer is "Yes" to any of these questions, please ask yourselves; do you want to commit many years and a large amount of money to a legal action on this particular issue? How will the outcome benefit Monroe County and all its residents? Please do not compromise the position of this County by unnecessarily complicating what is an uncomplicated issue. Please take the clean and direct approach typical of these circumstances and deny the easements, decline to file a Declaratory Judgment Action and direct staff: (1) to enforce the Comprehensive Land Use Plan policies and the Land Development Regulations; and (2) to not initiate the amendment process. This is the clean and direct approach and, we believe, the only right and fair course of action. Thank you. Sincerely, Alicia Roemmele-Putney, President The Solar Community of No Name Key W-C Some of the Documentation Regarding the Extension of New Infrastructure to Coastal Barrier Resource System Units in Monroe County, Florida September 2007 — November 2010 Assembled by: The Solar Community of No Name Key 1934 No Name Drive No Name Key, Florida 33043 Table of Contents Section Background on CBRS Unit F1-50 With Map of No Name Key Unit 1 List of CBRS Units in Monroe County With Map of Florida CBRS Units 2 3o Homeowners Who Signed Affidavits Own 1.5% of the Land on No Name Key 3 Judge Payne's Final Order Rules the Comprehensive Plan Has Authority 4 County -Owned Rights of Way on No Name Key by Name with Map 5 KEYS and the Easement Issue 6 Current Demographics and Community Character on No Name Key 7 Summary of Previous BOCC Action Regarding the Granting Permission to KEYS 8 • June 17, 2009 — BOCC Meeting With The List of 4 Questions 9 • December 16, 2009 — BOCC Meeting — Permission Without BOCC Approval 10 • January 2010 — BOCC Meeting With DCA v St. Johns County Case 11 Overall Intent of the Year 2010 Comprehensive Land Use Plan 12 Year 2010 Comprehensive Plan Policies Regarding FKAA Hook-ups 13 DCA Final Order Rejects Ordinance 020-2008 (12/12/20o8) 14 Comprehensive Plan Amendment — DCA Transmittal Hearing (01/26/2009) 15 Land Development Regulation Ordinance 020-20o8 Rescinded (02/18/2009) 16 The Principles for Guiding Development [Chapter 380.0552(7) FS] 17 Inconsistencies: Between the Habitat Conservation Plan and Electricity Project 18 October 15, 2010 USFWS Letter to KES is NOT an ESA Concurrence Letter 19 DCA Package on No Name Key & Wastewater to Cabinet Aides (11/23/2009) 20 • January 28, 2010 — BOCC Meeting —Wastewater Service Areas 21 • June 17, 2009 — BOCC Meeting —Wastewater Service Areas for DCA 22 Cistern Water is Safe To Drink �3 The Extension of FKAA Water to No Name Key: 09/12/2009 — 07/22/2010 24 1990 Mapping of Coastal Barrier Resources System Unit FL-5o and The Issue of a Possible MaDDing Error The only areas on No Name Key that are excluded from CBRS unit FL-5o are the two oldest subdivisions in the central portion of the island, the Amended Plat of Dolphin Harbour and the Amended Plat of Bahia Shores. As such, 18 of the 43 homes on No Name Key are within CBRS unit FL-50. Please see the attached 1992 Monroe County Land Use Map of CBRS unit FL-50 on No Name Key. Homes are not "grandfathered in or out" of CBRS units or the federal designation. Some the eighteen (18) homes within CBRS unit FL-50 on No Name Key have FEMA flood insurance because they were in existence when the CBRS designation became effective. In 2009 the BOCC passed a Resolution in support of a Coastal Barrier Resources System (CBRS) map amendment based on the testimony that the unplatted subdivision known as "Island's End", located at the east end of No Name Key, may have been erroneously included in CBRS unit FL-50 in 1990. In July of this year the Department of Interior concluded "the Island's End subdivision met the criteria for an undeveloped coastal barrier and therefore was appropriately included within Unit FL-50 in 1990." Please see the last sentence on page 3 of the attached July 15, 2010 USFWS letter to Mr. Lentini. Background on CBRS Unit FL -so: One of the many CBRS units added to the System with the passage of the CBIA in 1990 was FL-50 which included the island of No Name Key, Florida. All of the federally owned No Name Key parcels were designated as "Excluded Federal" on October 24, 1990 (because they were already protected from development as part of the National Key Deer Refuge). Of the privately held land, the two oldest and most developed subdivisions (Amended Plats of Bahia Shores and Dolphin Harbour) were designated as "Excluded" (because of their existing development level) and did not become part of System unit FL-50. All of the remaining privately owned parcels on No Name Key did become part of the Coastal Barrier Resources System unit FL-50 on November 16, 19go and remain so today. c v RC) 1� � U IJ � fl � —uts "Ntt. =ram 004., unit . 7 p pA c w5 r-W �i r r { V As, \ 0 \ Name Key F3 rf k O� cam, 40 it'lhe Interior JUL liiI "!:Ju ."."()43 ! ),: .!! \ 1! :.: �, " I: I � 1 11_ni t,t: liar r letter of \yd 2 n Th A to Qcwwq of the Interior Ken, SaL"1a!-:.e�'x-dn1,_, V K,: \ `, nit I I -5(J o: doJohn 11. (lake (Wad Hamer Rewoul-ces S., wo, UBITS! 1 letter estate, that v our nei�,h horhood in tier I lorida Kc\.s. know n a, the (,land,, I n,i did !-It" Meet the dellnitiOn of all undc%elopod 111aSlal harrier anLi kv: ANd in 0, (AWS in NO I he I S. HAi and 'A Mile scr\ ice I Set-\ ice, 11 ll'L!,ll'atit)ll \tIlh thil IiRlatik)n and ha%e COndUCIeLl a :CN 1,:\\ or no" :fit: island', I Ild ,Llbdi% ision %\a, el-l-OlooLlSk iloU,Iet_i \\idlill the A> par] re\ic\%ed the Illaterial" Aou pro\ided a, of the area. Mollive CoulllV Properl\ .Appraiser in iornlal'on. ;1:1,1 'i,,."eialed \tllh this 0111 rrvirvv ifllhCaICS that the I'dalld" I nd 1LlKil\111,1:-. !'!'Ial,- !.% i:"LIuJeJ v'(dlin 1 nit 1-1-5il ill !')(A). 110 e\ilteloe on the ir n"I e:oll<,Litule 'Ll!'I'lCient 'le\01olilloll" to \\al"Fant the e\clu,lon., "! ljo CBRS. Ili, !otter explains the criteria that were used w A,yint: S: MRW M±, Mj W Me 0wha "Cre Wpcullcal!\ applied 1:1 the de'SiZ"llallt)E '!'[ 1-n! I ! ' ! il: t, Barrie: RL­4ourer, Ae! I CBR \) "!, 1981. P.1 . 9--_'48. estahli,hed the ( :1 On W w! Apow"aplik unit, Am, do Wando (WIFol' \IcxWo. (;neat I akcv Pueno Ili,:( i:-�,!n I -Land coast,. the ('IIR.\ restrict. IIC\\ ledCl.di CXI)Cndin_ll_e) and :111:al,:Ial int:!u,linn badmil MY hisnawn " AlTin We CBRV the CHM Am, Mq P" on" 011 1IC\ 1:101)llollt e0111IUCtCj \\ ilh 11011-1:'Jel-al a, earl o!'the UBRS W It)" by the Coastal llai-rie:- IM.", Im lo\\ nlr!`,IdcI.iai 1, 'Indc% eloped eoa,tal ilarrler� %tilhi!: '-I],- li;R� Inal"Illude <true',aleqn HWAV the CHRA \\,I' enacted n"IN_ 'in-el:l[ed b\ the ( hl)niiltl, ktjd_let I\'eC011C11i1ti,,n .\et j Q aUtal harrier, for ( consideration, I he del`ini-tion> and hat puidcd the Dopm-upent Mile InterioCs (Dqonnwnp vKWpin; aborl, EY Zoe".- 4 up un: 16. 482. 1 div 1A,kral Agw" (Vol. 47 \n 159 Ac lJopm ae: r oV and a\ the p'l-OHI'd ',,, 10 �!Ic :011';IdLI'Ld dC\L'l0j)eLL IIIC IlCnlltV 0! dC\Cl0j1lllen', %11'. L:oula: .,ecn :110!-e dian (yw <mMum pub\ c aue, A land Am c mear hQ 1A. 1'. 1 Ure :11,:Ia,ies a11 ol ii1e colnjlollcnt> !,(,!- "iteil le ffe.i 'I .!d vx.:l l,cd. a v.a,%ae\\,ne!. di,�J'ojal �l 'te:n. --icel!-i, 'e!­ W%. I Fe Awn AM inhomuclue \\aW , al .,:a. !Ie!" ate eal, i I'll i/al i (r, to i!leiusior \A i;hin dic CRR :ommillnelli, 10 :011;11Cle lile dC\ 1:10111I)CIlt. I lle�e 1:1 itCl.la e!e !>tal Barriel. Re�')aa.ees Reauthol-i/ation Ac" ol, 2001 1 P. I lntel-io!. \,Ilcll Inakill'-'. !_CI:0nn11CndatlorN t' 1 -5 "Le de\ clol-Tilert \\ ll,:r "he anit \N ilam :I. . al la:iA:" 1 i,�w:l :o:llaitled corlplel,.,_, !:( 'C lhal !0,11 a:!,: a 'e: (,!*,i AAe . i: s o :SIC: i ! I e, 1 .....1._ o-, look al the enti:e BRS wlil. :Iol al r,h :,ivai �1:.e a! I-al-!-ie!. a:li., .,!_ J!ea�, 1:� \��Cl o!'a :oas', alea.a'.al 'n-L. othel.\\iie I'l-olecle'd "!. Iea: iJe\ 11._, II,I,:iei e!-ele .'lcnl' \\ ilhil'. t :,.!" 1 1 -5,1. !i"e!C 1:-" 'A 101.!i '.:le \I' \Jll:e Ke\ �l,>: !'C t. 1, :C :1:aden�,it., a., -.11e "inle Ll:-.il" d,:,�ip,:"atioll i:, \all-.,: K", lvlali\ el\ ande\ ejop"'i eli� eon�ider�.i jje,. .:j a!*,: !.0, o! all tl 1 ral lul�l 'heLi 1 �i`IC Va�� eonnl-,:rreln> ol. 1.pa: tl-!-aIlpL.l­nCI­'t> nLL, >IP-Li,:tali:11fi-a>11-LiCu,11-C a!-e !,a:-:ieFs wNcorli w Me dcp!-Cc al-C or 1111,ra,Inlclllre oil tllL: coastal I%1lTiCl'.­ I hel_Clol_C. ill IV% ,I' I 'llit 1 11�,:, pern"i" OU IVI t:Ft:1lct,: oul. lotto do 1'* JC% CkIT'lliell" the CRRA. A I'lle J:\ :101)1:d � 109o. 1!,mritted lelt,:F Jltt,:d AUI_'U>j 7. 1 Qil Ln I L:T-1 k )!* i il� ': III, i On I'!I LIIi alvil, : CIlt e." Illid I rhi 11 11, 11-ho: i L� 1 slLll f BId"a shol t pholot_,raph' alld 011 .tllll!.\ �i> ,F I QS. I IL11'110,1: t\w ,ul !;N v \l'o-ch 4. i.'' the ',',it ,i li"'t 'rl !1.011 !1Yk IPO ,,:,i :i'lji % 1 1 L 11 � 12 11 1' t LJ I I j I'Ll-, :J J L: I( q'! r L: I Il I e: 1 1! t.: i.l!-. lh.` IhL� t ,I l't,: C. 11-, .l il,., V" 11ji t 0:1,11 1, )F:11;11 al...,, 1 17 1 ,c T" s 1, 1 t: I I- J I I 1 11 !1 ;1 t,: I i R 1* .1_'!12 1 S: i1J,!t! ili the LAWS. IICI-. llik:�!i,)!` i,:i: 'Ird Co:, IIIIL: 'A IMIIC'. li!I2 )rl i 1', lit 'I'l � t2 I slai I o I] t II,) di ;It , I I I i ; x KM Oi.ff 1-e\ ICyv (11 LIDS ca.w indicates that tile Island's Fnd subdi\ ision mot tn'L' Ll,:!,:rn1 It'l- :oastal barri;:r and lheref'Ore v\ as appropriatek included \011"Ill 1:1 50 in "h i "Pi:11: ii!-" A7.!v\ o. ,I: I I D i:-ector 1,01- 1 is I I erie, a I I'l I labit' It Ck I! Is el.\ at I Acting Deputy ti�t (, i ()iZ 11). Arlin'-,lor. \ A V \allle Kell . 1 Amendment of the Land Development Regulation to Allow the Extension of Utilities to CBRS Units is Not Limited to Commercial Electricity on No Name KeX Monroe CounU Code Section 130_122 "The purpose of the coastal barrier resources system overlay district, is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to or through lands designated as a unit of the coastal barrier resources system. ` This Land Development Regulation is not limited infrastructure. Nor is this Land Development Regulation Key. CBRS units in the Florida Keys extend from North Tortugas. to one limited to particular No Name Key Largo to the Dry Monroe County Coastal Barrier Resource System Units FL-34P & FL-35-------------- --------- Biscayne Bay & North Key Largo - 25 FL-34P & FL-35/FL-35P------------- Biscayne Bay & North Key Largo - 26 FL-35---------------------------------- North Key Largo - 27 FL-35/FL-35P & FL-36P------------- North Key Largo & El Radabob Key - 28 FL-36P & FL-37----------------------- El Radabob Key & Rodriguez Key - 29 FL-39 & FL-40------------------------- Tavernier Key & Snake Creek - 30 FL-41P---------------------------------- Lignumvitae/Shell Keys 31 FL-42P------------- --------------------- Long Key - 32 FL-43 & FL-44------------------------- Channel Key & Toms Harbor Keys - 33 FL-45----------------------------------- Deer/Long Point Keys - 34 FL-46------------- -------------------- Boot Key - 35 FL-47P, FL-48P & FL-5o--------- ---- Key Deer/White Heron, Bahia Honda Key & No Name Key - 36 FL-51------------------------------------ Newfound Harbor Keys - 37 FL-47P & FL-52----------------------- Key Deer/ White Heron & Little Knockemdown/Torch Keys Complex - 38 FL-53---------------------------------- Budd Keys - 39 FL-47P, FL-54 & FL-55--------------- Key Deer/White Heron, Sugarloaf Sound & Saddlebunch Keys - 40 FL-47P, FL-55, & FL-57-------------- Key Deer/White Heron, Saddlebunch Keys, & Cow Key - 41 FL-47P, FL-59P & FL-6oP----------- Key Deer/White Heron, Fort Taylor & Key West NWR - 42 FL-61P ---------------------------------- Tortugas - 43 Please see the Map of the John H. Chafee Coastal Barrier Resources System. FLori-da., A? s CBA.5 Unit FL-102 FL48P 99 Ft ioi -..:y rt--100 j;,FL F P 2 - FL 96 - L-103P P31A -FL-93P FL-98P FL!48 FL-94 P 31 P` P31 FL900PI (P27A P30P_ff3O ! FL,89 IFL-90P FL-92 il►`. FL-91P R.-90 GULF OF MEXI CO P26, P25425P .R-01p P02lkP02P JFL-03P ATLANTIC' OCEAN PO4AV105 POSP 05AP POSA FL--06P P07PLP07 FL-87PN 3OHN H. CHAFEE COASTAL P24A—FL-85P P24-83 BARRIER RESOURCES SYSTEM P24P FeF,1.82 -7PL--7 FLORIDA FL-81P'" , --P�FL-73P FFL-7 P fP23P P22 FL-71P P21A--�, ; P21P P21AP' � iP20 P21 /P19P FL-70P P20P FL47 P17A P19-, ,AjR P17P P7&"i P17FL45P P18P' FL-64Pr 6 FL-63P,qP15 ,WP08 v -07P FL -'I 3P iP09A P10P%P10 P10A %FL-14P P11AP -P11 P11A�� P12 P12P —1 FL-15 - , FL-16P--,-� FL-17P FL-18 P F FL-20PL-19P P14A� .FL-21 P Sowidrb of OM John M. Chabe Comm Bertkr Rssoamss SyMrrr (CBRS) MOM 0n Otis msP vrre trarwWred fan Oi. 01111 C SRS mops for Otis am and are dapbbd 0n Mb map on foo for hkffrmb W PuPOs" atiy. 11m - M, I I CBRS mme we wmdod by Cmwm vla OM CoomW BrrLr Remxm Act as wnrMsd. and are msMWMd by the U.S. Fish and VWMNb Saabs. TheOObiM CBRS maps are.vaV" for dwrnbsd at IMlp:pwww tws 0owhaMlekarmvmftVaomft bwdw.htW. The Future of All Coastal Barrier Resources System Units Throughout the Florida KgYs Should Not Be Changed To Suit 1. 5 % of the Current No Name KeyPPr_opeM Owners The 3o homeowners combined own 18..291 acres of land on No Name Key. The total number of acres of land on No Name Key equals 1, i912 acres. The 3o homeowners combined own 1.5% of the land on No Name Key. Please see the attached map "Coastal Barrier Resources Unit FL-5o and the Location of 3o Homeowners in Support of Utilities on No Name .Key, Florida." Please also see the list of the 3o homeowners and how much land they own that was used to calculate the 1.5 % figure. 1 One of the 3o homeowners that signed an affidavit owns 9.12 acres of land on No Name Key. The other 29 homeowners combine own a total of 9.17 acres of land. The sum of 9.12 acres and 9.17 acres = 18.29 acres. 2 Habitat Conservation Plan for Big Pine Key and No Name Key, page i. i• � � �� '�% / / / / / / ;% � � . / % �, � 1 � /', � �f /. J � ;� i � %� �� � j ���� // � j" � �� � � � Qi i �� i �,' �: ��� ,i �� � � ' / , i j ; i / � / � ,,� ;� F � ,� r /� � � � �� � �� � ;%� i � ° �� / J �, /� � �, � ,� /, , � ,� r �# �, ,� ,'� / ��� ,,j� � �. � �� ' , / ,' � � j' ,' " . �,r `, (� ;� /� i / �% `► / � //, ���� � / �� The go No Name Key Homeowners Who Signed an Affidavit Asking the BOCC to Allow Commercial Power on No Name Key Own 1.5% of the Land on No Name Key Bimini Lane: 1. 1 & 2 - Druckman - 00108120-000100 17,286 sf 2. 3 & 4 - Eaken - 00108120-000300 16,98o Roadway - Eaken-108120-000000 8,575 sf 3- 5 - Kamm- 00108120-000500 8,490 sf 4. 6 - Lentini - 00108120-000600 8,490 sf 5• 9 - Bakke - 00108120-000900 8,490 sf 6. 10 & 11 & 12 - Hochberg/Killiam - 00108120-001200 25,470 sf 7. 13 & 14 - Turkel - 00108120-001300 i6,98o sf Tortuga Lane 8. 17 & 18 & 19 - McClelland - 00108130-001900 26,220 sf 9. 20 & 21 - Brown - 00108130-002000 & 00108130-002100 16,98o sf 10. 24 - Fletcher - 00108130-002400 8,490 sf 11. 25 - Morris --00108130-002500 8,490 sf Page 1 of 3 12. 27 - Thompson - 00108130-002700 8490 sf 13. 32 - Starcevich - oo1o8130-003200 10,840 We are unsure as to whether or not Philip signed a Affidavit, To be save, the four 4) lots owed by Phillip are included in these acerage figures. 14. 28 - Phillip (Vacant Land)-00108130-002800 8,490 sf 29 - Phillip (Vacant Land)-oolo8130-002900 8,490 sf 30 - Phillip (Vacant Land)-oo1o8130-003000 8490 If 31- Phillip - 00108130-003100 10,454 S.f Marginella Drive 15. Marginella LLC 16,600 sf Spanish Channel Drive 16. 5 - Coleman - 00319491-000500 7,000 sf 17. 7 & 8 - Pichel - 00319491-000700 & 00319491-000800 14,000 sf 18. 19 & 20 Daniels - 00319491-001900 & 00319491-002000 14,000 sf Bahia Shores Road 19. 46 - Benton - 00319491-004600 7,700 sf 20. 47 - Reynolds 00319491-004700 12,032 sf Tract A - Reynolds - 00319491-004800 1 lot, estimate: 120' X 15' = 1,800 sf 21. 17 - Licht - 00319492-001700 7,700 sf Page 2 of 3 22. 14 - Newton - 00319492-001400 7,700 sf 23. 13 - Vickrey - 00319492-001300 11,550 sf 24. 11 - Bone - 00319492-001100 11,550 sf 25. 7 - Louja Realty - 00319492-000700 7,700 sf No Name Drive 26. 25 & 26 - Raser - 00319492-002500 15,400 sf 27. 27 & 28 - Sandroni - 00319492-002700 & 00319492-002800 15,400 sf 28. 30 & 31- Craig - 00319492-003000 & 00319492-003100 15,400 sf 29• 33 - Sinclair 7,700 sf = 399,427 square feet divided by 43,56o sq. ft./acre = 9.17 Acres Total Number of Acres Without the 3oth Property Owner 9.17 Acres Acreage 30. Elbualy-1o848o-000000 13,o68 sf = 0.3o Acres + 0.28 Acres + 1.42 Acres 2.00 Acres Elbualy-1o8480-000200 + 7.12 Acres Elbualy owns 9.12 Acres Total Number of Acres With the 3oth Property Owner = 18.29 Acres Total Number of Acres on No Name Key = 1,191 Acres' 30 Homeowners Who Signed an Affidavit Own 1.5% of the Land on No Name Key Page 3 of 3 ' Source: Habitat Conservation Plan for Big Pine Key and No Name Key, page 1. Judge Pune's Final Order Rules the Monroe County Comprehensive Land Use Plan Has Authority in the Extension of Electric Service to No Name Key In the Final Summary Judgment, which was issued on June 13, 2003, Judge Payne ruled there is no constitutional right to commercial power and that neither Monroe County or City Electric System are bound by Section 366.03 FS" and, that "utilities governed by this section are authorized to consideration of consistency with a local government comprehensive plans" (sic). The Final Order also states, "that commercial electric service would be inconsistent with the Monroe County Comprehensive Plan and Chapters 16.q and 38o FS." Unfortunately, the importance and relevance of this lawsuit has not been given the attention it deserves. Please see the attached Final Order granting Summary Judgment in favor the Defendants Monroe County and City Electric Service- 3 . The BOCC Is Incorrectly Advised That Judize Richard Payne's Final Order Was Vacated Of In the attached Memorandum dated January 21, 2010, Monroe County Attorney Hutton corrects the misinformation given to the BOCC at the January 20, 2010 regular meeting that the Final Summary Judgment on behalf of Defendant Monroe County against the Plaintiffs in the Electrification of No Name Key case issued by Judge Payne on June 13, 2003 was Vacated leaving no Final Order in the case. As Attorney Hutton's attached chart indicates, the Final Summary Judgment on behalf of Defendant Monroe County was issued on June 13, 2003 and is the same Final Order dated July 11, 2002. IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT IN AND FOR NIONROE COUNTY, FLORIDA TAXPAYERS FOR THE ELECTRIFICATION OF NO NAME KEY, FNC., et al. Plaintiffs, u MONROE COUNTY, a political subdivision of the State of Florida, and CITY ELECTRIC SERVICE, Defendants and CASE NO. 99-8 I 9-CA-18 Honorable Judge Sandra Taylor DR. SNELL PUTNEY and ALICIA ROEMMELE-PUTNEY, Intervenors. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS THIS MATTER having come before the Court on Defendant Monroe County's Motion for Summary Judgment, Intervenor, Putney's Motion for Summary Judgment, various affidavits and attachments thereto, responses to requests for admissions and interrogatories filed with the court, Report and Recommendation of Special Master, and Defendant Monroe County's Exceptions to Report of Special Master, Intervenor Putney's Exceptions to Report and Recommendation of Special Master, the Court having reviewed the pleadings, heard argument of counsel, and being otherwise duly apprised, it is hereby: ORDERED and ADJUDGED that the Report and Recommendation of Special Master is hereby REJECTED, Monroe County and Intervenors' Exceptions to said Report are hereby GRANTED and Defendant Monroe County's Motion for Summary Judgment is hereby GRANTED on the following grounds: 1. Plaintiffs' Equal Protection and Vested Rights claims are barred by res judicata. See., Verdi v. Metropolitan Dade County, 6S4 So.2d 870 (Fla. 3d DCA 1996); Key Hal -ell Associated Enters. v. Board of Trustees, 427 So.2d 153 (Fla. 1982). Plaintiffs failed to appeal Resolution P17-99 of the Monroe County Planning Commission to the Board of County Commissioners as provided in the County's Land Development Regulations. Plaintiffs are thus barred from re -litigating the factual findings and legal conclusions therein relative to the rational basis for the county's decision to deny the extension of electric service to No Name Key, the lack of a substantial and detrimental change of position based on the standard electric wiring requirements for the issuance of building permits, and the consistency of that decision with the county's Comprehensive Plan.. The findings within Resolution P17-99 are dispositive of Plaintiffs' Equal Protection and Vested Rights claims. Therefore, summary judgment is granted in favor of Defendants. 2. Plaintiffs have no statutory or property right to have electric power extended to their homes, which are operated with alternative, typically solar, energy sources. Section 366.03, Fla. Stat. does not apply to Defendants Monroe County or City Electric Service. Even if it did apply here, Section 366.03, Fla. Stat., does not provide a right to commercial electric service if such service would be inconsistent with Chapters 163 and 380 or the Monroe County Comprehensive Plan. Utilities Commission of New Smyrna Beach v. Florida Public Service Commission, 469 So.2d 731 (Fla. 1985); Storey v. Mayo, 217 So.2d 304 (Fla. 1968); Gulf Coast Electric Co-op., Inc. v. Johnson, 727 So.2d 259 (Fla. 1999). This is particularly true given that utilities governed by this section are authorized to consideration of consistency with a local government comprehensive plans. See, City of Oviedo v. Clark, 699 So.2d 316 (Fla. I" DCA 1997) . This negates a claim of a statutory entitlement to the receipt of electric power in a manner that is inconsistent with a local comprehensive plan. 2 3. Plaintiffs' Vested Rights claim fails as a matter of law because Plaintiffs fail to establish an affirmative govemment act of approval by Munroe County as to the expansion of commercial electric service to No Name Key. Plaintiffs' claim is based on an implied expectation and therefore fails to support a Vested Rights claim. DONE and ORDERED in chambers located in Key West, Monroe County, Florida this lj�hday of July, 2002. cc: Karen Cabanas, Esq. Nathan Eden, Esq. Frank Greenman, Esq. Richard Grosso, Esq. 3 Honorable Richard Payne CIRCUIT JUDGE Me [January 21, 2010] "Commissioners: I reviewed all of the orders, even to the point of making a table to follow exactly what happened when. There were numerous orders with similar dates and an erroneous reference to the date ofone order (Nunc pro tunc order), but the order from which I read at yesterday's meeting seems to have been reinstated by the court vacating the order amending it, and a final summary judgment was entered in favor of the County on 6-13-2003. That was the same day the Court also ordered vacation of the prior amended SJ which left only the one entered 7-11-02 with a statement of findings upon which the summary judgment could be based. You can see a list of the orders with respect to summary judgment & final summary judgment on the attached table. Suzanne A. Hutton County Attorney Monroe County PO Box 1026 Key West, Fl. 33041-1026 305-292-3470 Table of SummaryJudgment related Orders in NNK Electrification Case.doc Date Court order Order/Motion referred to in this Judge OR order Recordation July 12, "Order Granting SJ in Favor of Payne 2002 Defendants" June 24, Order of Dismissal Appellants' notice of voluntary 3` Bk 1903 Pg 2003 dismissal DCA 1090 June 11, "Amended Order Granting SJ" Upon relinquishment of District Payne Bk 1897 Pgs 2003 - that Defendants County & Court Jurisdiction: 1426-1429 Nunc Putney's entitled to judgment County Motion for SJ, Putney Pro Tunc as matter of law; complaint Motion for SJ June 11, dismissed 2002 June 13, "Final Summary Judgment" on Order Dated July 11, 2002 Payne Bk 1898 Pgs 2003 behalf of Defendant Monroe granting motion of Defendant 1121-1122 County against Plaintiffs MC for SJ June 13, "Order Vacating Amended on "Agreed Motion to Vacate Payne Bk 1898 Pg 2003 Order Granting SJ" Amended Order [of 6/11/2003] 1120 Granting SJ and for Entry of Final SJ Submitted by Plaintiffs" County -Owned Rights of Way on No Name Key Roads, along with their rights of way, are dedicated to Monroe County as part of the plat approval process. Not all of the homes on No Name Key are located in platted subdivisions or along County -owned roads. There are four officially platted subdivisions on No Name Kev. 1.) Dolphin Estates 2.) Amended Plat of Bahia Shores 3.) Amended Plat of Dolphin Harbour 4.) Amended Plat of Galleon Bay County -owned roads, of which there are seven(71provide access to 28 of the 43 existing homes on No Name Kev. 1.) State Road 4A, Watson Boulevard - paved (i house) 2.) Tulip Road - paved (o houses) 3.) Marginella Drive - paved (1 house) 4.) Spanish Channel Drive - paved (4 houses) 5.) Bahia Shores Road — paved (13 houses) 6.) No Name Drive — paved (9 houses) 7.) Wolfs Way - unpaved (o houses) Unpaved privately -owned roadway, of which there are three (3), provide access to 15 of the 43 existing homes on No Name Key. 1.) Cat Lane (1 house) 2.) Tortuga Lane (7 houses) 3.) Bimini Lane (7 houses) Keys Energy Services has asked Monroe County for a total of five easements on the County's property along Tortuga Lane and Bimini Lane. Keys Energy Services has NOT done anything to try and secure the easements needed for the existing dwelling located on Cat Lane'. This is not right. Please see the following Section which is entitled "Keys Energy Services Turns Easements Over to Group & Easements Are Being Overlooked." 1 The homeowners who currently live on Cat Lane are in opposition to commercial power. l"/ CG%) a 0 s L �. r 101 L9 Keys Energy Services has apparently relied on the information from a group of homeowners regarding the easements that would be needed for a project to extend commercial power to No Name Key. This homeowners group has evidently not provided the information needed to procure utility easements for all of the existing No Name Key homes. Or, perhaps Keys Energy Services already knows that the easements needed for the one house on Cat Lane are NOT going to be forthcoming because the land is owed by Monroe County, the State of Florida, the United States of America and private landowners? Either way, leaving out one of the existing dwelling units raises questions regarding the amount of due diligence that has gone into the project to extend commercial power to No Name Key. Unfortunately, this situation has the potential for causing problems for Monroe County. Cat Lane Easements Are Being Overlooked, All of the land purchased by Monroe County, the State of Florida and the United States of America was done in the name of conservation. Access on the north side of Cat Lane would require easements from a private individual, Monroe County and the United States of America. Access on the south side of Cat Lane would require easements from a private individual and the State of Florida. Access to this dwelling unit from the east side would require an easement from the United States of .America. Keys Energy Services is treating the Cat Lane house differently than the other homes on No Name Key and have evidently determined that providing commercial power to this one house would be a separate and distinct Keys Energy Services project. This is not right. Please see the attached Monroe County Property Appraiser's aerial. 1 The homeowners who currently live on Cat Lane are in opposition to commercial power. tv Current Demographics and Community Character of No Name KeX The 1986 Land Use Plan defined the Community Character of No Name Key as 98% Native Area. There were 8 No Name Key homes on the 1986 Tax Rolls. There were 34 No Name homes on the Tax rolls in 1993 when the Board of County Commissioners adopted the Year 2010 Comprehensive Land Use Plan Future Land Use Maps (FLUM). There is four land use classification on No Name Key: Conservation, Residential Conservation, Residential Medium and Mixed Use Commercial Fishing. There are numerous individual lots zoned Residential Conservation within the two oldest platted subdivisions on the island. The vast majority of the land is zoned Conservation and remains undeveloped. There are two commercial fishing villages with a total of 24 platted lots, but only one existing dwelling unit. Less than 2% of the land is developed and most of the undeveloped land is in public ownership. All three levels of government have made substantial investments in conservation lands on No Name Key. Acquisition efforts are ongoing. The community character of the island can be described as native habitat, Refuge lands, sparsely settled with no commercially supplied utilities. The 43 off -grid homes on No Name Key rely predominately on photovoltaic systems with back-up generators. Not all of the homes have generators. Some rely on the sun for too % of their electricity. Rainwater is collected and stored in aboveground cisterns. Sewage is treated, as is the case in most areas of the Florida Keys, with onsite systems that have been approved by the Florida Department of Health. Approximately 16-18 homes are occupied full time with an average of less than two individuals per dwelling unit. The majority of the homes are second homes. Some are used seasonally: most are occupied only occasionally. The permanent population of No Name Key is currently about 28-30 individuals. Summary of the Issue of Granting Permission to KES to Use the Bogie Channel Bridge and the County Rights of Way on No Name Key March 14,,19996 — Monroe County Engineering writes City Electric Services informing them of the need to apply for a license agreement to attach a utility conduit to the Bogie Channel bridge. Please see the attached May 7, 1996 and July 3,1996 letters regarding permission to use the Bogie Channel bridge. June 2009 — Keys Energy Services writes Monroe CougV asking for permission to use the Coun V bridge and County Rights of Way on No Name Key. June 17, 2009 — BOCC votes NOT to write a letter granting permission to KES and directed staff to bring a full report regarding this issue back to the Board and to, at a minimum, address the following four questions. 1. What is the current position of the U.S. Fish and Wildlife regarding the extension of commercial power to No Name Key? 2. How can we preserve the character of the island if commercial power were to be extended to No Name Key? 3. Was the 1951 BOCC Resolution presented to the BOCC on June 17, 2009 addressed in the 1999 Circuit Court case regarding the extension of commercial power to No Name Key that was heard by Judge Richard Payne? 4. What are the potential liabilities on either side of the decision to allow the extension of commercial power to No Name Key? December 16, 2009 — BOCC — In spite of the above, staff plans to write a letter granting permission to KES without direction from the BOCC to do so. Staff was instructed to bring the issue back to the BOCC the following month. January20, 2010 — BOCC votes NOT to write a letter granting permission to KES until the other issues, such as Comprehensive Land Use Plan and LDR amendments were addressed. It was also decided to put all of the issues on hold until the current position of USFWS was known to Monroe County. The 1996 requirement of a license agreement has been ignored and two of the four June 17, 2009 questions remained unanswered. a FA UTILITY BOARL posy oFFICR DRAWN 6100 KEY WEST, FLORIDA 330413100 May 7, 1996 Mr. David S. Koppel, P. E. -)F THE CITY OF KEY v' z t TSLEPHdP1E: i30S1 28S-1000 Morwos County En*4wft Department 5100 College Rd Key West, Florida 33040 RE: * ELECTRIC SERVICE - NO NAME KEY Dear Mr. Koppel: In your letter to Mrs. Damon of the "Taxpayers for Electrification of No Name Key" dated March 14,1 "6, you stated that a "Yoenss agnemert" would be needed to attach to the County bridge. Plsass forward the mp*vd app n to Ca for our execution. After completion of this appic000 to Owed an the Cm* qWda Cwm*$W rwiew and appr�ovai.CES will gm MW" ift if my undNstandinp of the above procceeduB e i ot�ed, please advise. Thanm again for your continual cooperation. Ste. UTILITY BOARO - CITY OF KEY WEST "CITY ELECTRIC SYSTEM' Leo L. Carey, Caernral Manager Dale Z. Flripan Et►gineer'ing Supedrtendsrq DZF/ba cc: L. Carey, Gsrnral Manager L. Thompson, AS& General MprJOperations Mw R. Rodrignr@& CU$W. r SWAM Manager R. RewroWsK T&D SWtMin14ndV9 A. TO*W Meter Services Supervisor P. Cates. Enonsering $upovisor Barbara Damon - No Name Key !FIe:CUS-201 UTILITY BOARD MEMBERS: Robert R. Padron. Chairman - Marty Arnold, Vice -Chairman Otha P. Cox, Member " Leonard H. Knowies. Member " John M. Robinson. Jr.. Member [Source: Page 97 of 1998 Administrative Appeal file "98044. Taxpayers. Electrication.pdf '] UTILITY BOARD OF THE CITY OF KEY r'VEST OOS7 ^,FFICE DRAWER $100 TELEPHONE. (305) 295.1000 XEY WEST. FLORIDA 330416100 July 3, 1866 kir James L. Roberts County Engineer 1) e N ,, , g 7 ,</y /_r. Monroe County Engineering Department 5100 College Rd. Key West, Florida 33040 RE: ELECTRIC SERVICE - NO NAME KEY Dear Mr. Roberts: City Electric System is in the process of performing preliminary design of electric facilities to No Name Key. l have had correspondence with David Koppel, County En veer, on obtaining Monroe County approval. Mr. Koppel has responded back to CES recommending that CES contact the County Ai ministrator's office for such approval (see attached correspondence) - Please advise CES of the necessary steps or appropriate agreements rewired In order to fulfill CES' responsibilities with this project. S,ncerely, UTIUT.' BOARD - CITY OF KEY WEST "CITY ELECTRIC SYSTEM" Larry J. Thompson, General Manager Dale Z. F;nigan Director of Engineering DZF/ba co: L. Thompson, General Manager R. Rodriguez, A58't. General Manager H. Plowman, FieeWFacilitiss Supervisor A.'tejeda, Meter Services Supervisor P. Cates,. Engineering Supervisor Aarbara Damon - No Name Key File:CUS-201 UTILITY SO/tRD MEMBERS: r,to a xw Robert R. Padron, Chairman a Marty ern John N. Robl son. Jr.. •member June 17, 2009 Regular Meeting of the BOCC Marathon, Florida Agenda Item M-1: "Approval of authority for mayor to send a letter to Keys Energy Services stating that Monroe County has no objection to use of No Name Key County bridge and No Name Key County rights of way for placement of electrical lines provided that any obstruction, whether permanent or temporary, to said bridge and rights of way, or any physical changes there to are coordinated with the Engineering Department in compliance with County ordinances regarding its roads and bridges and that Keys Energy will maintain lines and whatever structural supports they install to support their lines." Outcome: 4-1 to NOT write the above -described letter to KES. Staff was directed to bring a full report regarding this issue back to the Board and to, at a minimum, address the following four questions. 1. What is the current position of the U.S. Fish and Wildlife regarding the extension of commercial power to No Name Key? 2. How can we preserve the character of the island if commercial power were to be extended to No Name Key? 3. Was the 1951 BOCC Resolution presented to the BOCC on June 17, 20o9 addressed in the 1999 Circuit Court case regarding the extension of commercial power to No Name Key that was heard by Judge Richard Payne? 4. What are the potential liabilities on either side of the decision to allow the extension of commercial power to No Name Key? "Questions number 2 and 4 have not yet been addressed. Please see the attached June 17, 2009 letter from the Solar Community of No Name Key, the Minutes of the April 19, 2001 meeting directing staff to zone No Name Key off grid, 1951 Resolution and the July 14, 2009 letter from Everglades Law Center regarding the 1951 BOCC Resolution. Staff'Contact PersoIi/F._ ..it #: l erri arl�Ie ? 1Z AGENDA ITEM WORDING: Approval of authority for mayor to send a letter to Keys Energy Services stating that ;Monroe ounty has no obje tints to uw& 4 Nz Name Key C c-unty hridge and No Flame Ivey County rights of way for placement of electrical lines provided that any obstruction, whether permanent or temporary, to said bridge and rights of way, or any physical changes there to are coordinated with the Engineering Department in compliance with County ordinances regarding its roads and bridges and that Keys Energy' will maintain lines and whatever structural supports they install to support their Tines. ITEM BACKGROUND - Keys Energy letter included a PREVIOUS RELEVANT BOCC ACT'I€ N- CON"I'RACyT/AGFtEI✓'MENT C]HA,NGES: - - - STAFF RECOMMENDATIONS: TOTAL COST:----- INDIRECT COST: COST TO COUNTY: I3IJI)GETED: Yos �Nc� SOURCE OF FUNDS: � �, RF:VENiJE PRODUCING: Yes _ No -- _. AMOUNT PER N1ONTIH_,__- Year APPROVED BY: County Atty ____ OMB/Purchasing __ Risk. Management DOCUMENTATION: Included x _,. Not Required DISPOSITION': Revised 1/09 AGENDA ITEM #_ "J. The Solar Community of No Name Key 1934 No Name Thrive No Name Ivey, Florida 33043 06/17/2009 BOCC 1�cgular Meeting, Marathon, Florida AgendaName Kev roc Extension of Corr�naerci�t Power The 1951 BOCC Resolution The recently unearthed 1951 BOCC Resolution authorizing the use of County bridges and ROWS for electric service is a separate issue from your agenda item M-1. It was passed in the enthusiasm of electrifying Big Pine Ivey (54 customers) and reflected the realities of that era —to encourage all development and did not contemplate No Name Key, an uninhabited of#shore island. [See, attact ed 1951 Resolution., 1994 Bridge permit and 2002 Letter from Tom I-Iarnbright. County Historian.1 The BOCC has the power anti ©bl on to arnend/uptlate B®CC It _ esoluirraais A Resolution is not a law. A Resolution is transitc�f ttneasr�t�e thy�t essc�s ttie c�i�iFai�rt.�� of the at e sitting Commission. Subsequent Boards have the right and obligation to Cf IANGE the previous Board's opinions and directions in order to keep up with the current local- state am. -I federal rules and regulations. fIistory ReSOIUtions are no!. binding on this Board. Bringing tip this Sfl year old resolution as germane is very irre;guiar, if knowing a previous Board's opinion is gerrnanc to r current agenda itern, then why not bring Lila the 2001 BOCC Resolution `-`to create crra cxiserlcry rl of _ rich{ar._ctll of No Narttc I�etj,,_' [See attached 04/19/2.001 BOCC Minutes.] The BOCC has the power and the right to sav "1'VO" to :Keys i;neray Systeins I his is hrccisely what happened in 1996 when Monroe County told CES they could NOT use the Bogie Channel Bridge to extend electric service to No Name Ivey because the recently adopted Year 2010 C�`oaiap Plat' "1t�tlzslci not crlloEa szrcla_crn er�tension."" [See attached 08/02/l996 letter born Monroe County to City Electric Services.] To date there is na le tills oliticall s or ethicafiv jusCiLlable reason for the BOCC to chap a course on the issrte of electric service to No__N�Kev The issue has been debated, legislated, litigated and settled. No pea+, acts• home been established. 70% of current No Name may have signed an affidavit in the belief that, "'The provision of commercial power to nay home will allow me to best aneet the State `seiiyi--maandade,' (sic)" but. commercial power is NOT needed to meet the State inrsteuvier mandate. The 30-sig;ned affidavits are not a legally justifiable reason to reverse the County's position of upholding the Goals, Objectives and Policies of the 2010 Comprehensive Land Use flan regarding the extension of commercial power to the island of No Name limey. [See the attached Affidavit for wordingI There is no le al "Farm" in delairzaar an answer to KES The extension of commercial power to No Name Key is NOT needed for us to come into compliance with the 2010 Wastewater Standards; alternatives exist. Given the low density and long distances, 'FKAA and the DOH are likely to end up recommending the.. same systeraas recommended in the Monroe County Wastewater Master Plan, that No Nance be served by upgraded on -site �,vastevvater systems designed to operate with minimal electric demands which are compatible With solar generation. This is va separate and distinct issue from commercial electricity. The BOCC �ashoulr ante "N(i"until tliey lrtrvcr the le�ially required data and Ling/ Isican The BOCC can always vote "Yes" at a later date. Brit, if rand when the BOCC: votes "I ES' 93 a dr3ar is open that will b impossible to close and No Nance Kev will be inexorably changed forever. 0 1 1 '119i0l DIVISION OF GROWTH MANAGEMENT Kar(-n Cabaiikls, Assistant Coi trity Attorney disciissed with the Board approval of a proposed settlement agreement for Taxpayers for the Electrification of No Name Key,.Itic-, PA, al. v, Monro -( ., 18 (Fla. l 6th Cir. (A.), - e County and City Electric Systeiv., Case No. 99-919� A allowing for the extension of CcArimercial electric service to tile existing lawfUlly coc nstnicted homes on NoNarxie'K.ey. The fbIlowing individuals addressed the Board: FranklinT..). Gwennflan, Attorney forTaxpayers for Elec.trification of No Name Key; Mick _.Putney, Alicia Putney, leannette, Gato. representing No Name Key Residents Against Commercial flower; Coy Lindy, j A. Wernsen, Rob Barber, Jane Sprenger Wallace,'Kirk Wiederecht, Harry Wallis, David Eaken, Daryl Millet-, and Ruth..kaken, representingTaxpayer,', for Electrification of f4o Name Key; Petronella 13euton, Bob Blanton, Attorney Richard Grosso, repre,,e.rkting fhr. Snell and Alicia il�utney; Lenore Lohr, John F. Uhr, Frank Atwell, Karen Jeanneret-Dnickirian,Tonig flarlacheA-, F',Iixabeth, Harlacher, Stu Ciarrison, Faye T. Ida K niels, Walter eske, Rebeccit ,:Jut on, representing the Depa!ialeill: of Conimunity Affairs, and Larry Stillivt,11, Flig Pinc, Kol- Civ;­ Y As-,,,00iation. Aflet, discussion, No icon was made by Convilissiorlel WAilliarn s and secorld'ed 1.)Y jojjer St. ejjjr, to i,eject the, proposed settletileld ag rc,ement. Roll C1,111 vote: unar� iuous. zo� C "on unissioner Nelson excused himself from tile meeting. Motion was m ado by 4-00' com -)ner Willianns, directing Staffto brim, back, to . inissioner Spehar and seconded by i 1V tho Roard for apprcw"ll thf,- crfy,afion of a zoning overlay district designation of off -I 6-Ad dj properties Vatllir the boundaries of No Maine Key andtilso, to address or change the other isslles thatelearly caused confusion today. Ms. Cabanas;addresscd the 1kA oard. on not prese oll i-q,11 Vote wil", i1nanirnous, Nells Commissioner Nelson returned to the Illecting- .M.otion was made by Mayor Neny ,,ent and seconded by Commissioner Spellar granting -trprovr - stee f 'I'l-I . 2 1 at of the Proposed settlement agreement tlbrMax D. Puyanic, asT,?U 'Of ust NO '0 v. Monroe County and Joseph Paskalik, Case No. CAP-00-60i (Fla. 16th Cir. Ct.), allowing the issuaoce of building permits to Pl;j jilt ifffi) t .1, tht-.TavorniprTown Shopping Centerupon paymen t fees fanny Plaintiff. Roll caU vote. was 1111allimous. COUNI-Y ADMINISTRATOR The Board discussed Representative Sorensen's letter concerning an invitation to attend a meeting in Tallahassee to discuss a strategy for the use of pending federal wastewater and storrawater funds-. The 11.3oard took no official arfion. SOUNDING BOARD )elf Belisle, representing tile International Association of Firefighters addressed the Board issues relating to the fiiresowvictwhich havea direct bearing on the reqtnicturing of RESMTI(B URANTING TAS CITI "A wWr* , FIOMDA PMWMO 1 TO USE TjZ RItNAWJW OF CUTAIN PUBLIC 52R=S2,lb011D,S2 BHII)OSs- AHD/OR Htt)wns IN mcros COUNTI, FWMA. the CitO' of Fey West# Floridas desires to ran eleotrical line from t*he City of -Key West, Florida to pigeon Keys, Florick for the purpose of fur- nishing electr .ity to the residents of the Florida Kays residing in said area, and, , the City of Key West, Florida has requested the Board of County Commissioners of Monroe County* Florida to grant easements on -and over the'publie- streets, roads, bridges and/dr higfi►aya tinder said Board's jurisdiction and control, and, WHxM , the. said City of -Key West Florida has agreed not to .charge any higher rates to :residents of the above areas than it charges within the boundaries of the City of Yoy went, Florida, and that in furnishing service to residents not residing on a pi tic street, road and/or highway not to charge any higher rate for the extension of the pole lineethan that which is charged by the Florida Keys Elect- rical Cooperative Association, which in- now operating in another area in Monroe County, Florida, and WHEM , the City of Key West,. Florida has agreed to furnish service under the conditions set forth in the above paragraph$ to any aril all subscribers who may apply fo same, now; therefore, BE IT I G►LgEO ;HX° {TEE $0ARb 'OF COINTY ,C0=8510 =S .4,`, $ONWg COMM, FLE)RZUA,s that pe °,as#:a# a ,tsae.eiere2�y game to'fia Gp t►:Fr'ieet, Florid to Construct and 1 ctri+� . ss on on atxi :�av ?of. tbrg .1_►;,c 01, `'. aaaOY wf thin. `the 'l ari, 'lcr da, ,the, C3t�r of 1$ i '1Cr3da up to and it chid - tg'X0A.d4provided that. the City of Key West', Flora charges the agret•d rates and Coats to consumers for extension; as set forth in the introductory pars:graphs bf this Reaoltation. Dated is lath day -of SePtOmber, A.D. 1�51. MONROE COUNTY MAY HILL RUSSELL LIBRARY 700 FLEMING STREET KEY WEST, FLORIDA 33040 January 31, 2002 Subject: No Name Key I have never found a record where commercial power was on No Name Key. During the 1930's the WPA had a camp on No Name near the ferry landing and may have had a generator for their use. There was telephone service to the ferry landing which connected to the telephone line on the railroad right -of -away. The first commercial power in the lower Keys was in 1953. The transmission line to Big Pine Key was energized March 10, 1953. No Name Key was not included because the bridge had been destroyed by the Hurricane of 1948 and no one was living on the island. The new bridge opened in April 1968 without electric lines. S ncerely, Tom Ham right Monroe County Historian CIO 11, - �— July 14, 2009 Everglades Alicia Putney Law Center, Inc. 2150 No Name Dr. Defending Florida IsEcosyvents No Name Key, Fla. 33043 and Conimnnifies Shepard Broad Law Center 'Bova Southeastern University Dear Ms. Putney; 3305 College Avenue Ft Lauderdale, Florida 333I4 Phone: (9541262-6140 In response to the question you've posed regarding the Fax: (954) 262-3992 I current discussions about extending electric service to No Name Board of Directors Key, I have the following thoughts. You've asked about a 1951 Monroe County Resolution, which, as I understand, states that: President Thomas T. Ankersen, Esq. Treasurer "...permission be and the same is hereby granted to the Richard Hamann, Esq. City of Key West, Florida to construct and maintain and Secretory electrical system on and over any of the public streets, Joel A. Mintz, Esq. roads, bridges and/or highways under said Board's Laurie Ann Macdonald jurisdiction and control within the Florida Keys." Janet Reno. Esq. My reactions to this are as follows: David White, Esq. .John H. Hankinson, Esq. First, generally, Resolutions (unless they are mis-named as a Resolution and were actually adopted with the same notice and Executive Director General Counsel formalities required of ordinances) do not have the same legal Richard Grosso, Esq. effect of Ordinances. It would be important to know what the Regional Director applicable law was in 1951 when the Resolution was adopted. It Senior Counselmay rl Lisa Interlandi, Esq.q.y be that the law authorized the County to grant this right to Trial Counsel use streets, roads, bridges and highways via Resolution. Or, it Robert N. Hartsell, Esq. may be that the lack of formal adoption as an ordinance precluded Staff Counsel the 1951 Resolution from having the force of law. I don't have Jason Totoiu, Esq, that answer, but the County's legal staff should probably be asked to look into that. On the other hand, because of the issues I discuss next, this may be a moot issue. The Everglades Lmv Center. Inc, is a tax- exempt Florida riot for profit Caparation pursuant to Section 50I (c)(3) ofthe Internal Revenue Code. Even if the Resolution did have legal effect, by its terms it applied to only such facilities "under said Board's jurisdiction and control". Was the bridge that now exists to No Name Key under the BOCC's jurisdiction and control at the time this Resolution? If not, it is questionable whether it can be used to support a claim that permission was granted for this bridge. Next, even if the 1951 Resolution did have legal effect, and could apply prospectively to facilities that did not exist at the time, Resolutions and Ordinances can always be superseded. If the County Ordinance adopted in 2001 prohibited what the 1951 Resolution had authorized, then the 2001 Ordinance most likely supersedes and trumps the 1951 Resolution. That would happen if the two actions are in conflict — in which case the later adopted one would trump the previously adopted one, or, if the later adopted Ordinance stated that it supersedes any previously actions with which it is in conflict. The exception to that would be if, at the time of the 2001 ordinance, electric lines had already been extended to No Name Key in reliance on the 1951 Ordinance, which is not the case. In this case, the 2001 ordinance (Ord. No. 43-2001, § 1, Part 3) states that "[a]ll ordinances or parts of ordinances in conflict with this ordinance are hereby repealed to the extent of said conflict." This language appears to clearly repeal any previous conflicting ordinances. I hope that this information is useful to the current policy discussions concerning this matter. While this letter is not an exhaustive legal analysis, I think the points discussed above, at a minimum, should be specifically analyzed and addressed by the County's legal staff before the County reverses a long-standing policy that has applied to a very unique place in the Keys. Sincerely, /s/ Richard Grosso General Counsel December 16, 2009 Regular Meeting of the BOCC Marathon, Florida Agenda Item n-1: Page 11 15 Staffs intention to draft a letter to KEYS Energy Systems giving the Utility the right to install electric lines on the Bogie Channel bridge and No Name Key. Background: In spite of the direction of the BOCC at the June 17, 20o9 Regular Meeting to bring the issue of granting permission to KEYS back to the BOCC with the answers to three questions, the County Administrator's December 1, 2009 Monthlu Activity Report states, "Engineer staff is working with the County Attorney, Growth Management [Andrew Trivette] and KEYS energy regarding the installation of electric service infrastructure on the No Name Key bridge and County right of way." And, that "Staff will be drafting a letter to Keys Energy confirming a 1951 resolution giving the utility right to install electric transmission equipment on County roads and bridges." Outcome: Staff was directed to NOT write the above -described letter and to bring the item back to the BOCC for consideration, which in fact did happen. The issue of granting permission to KEYS for the right to install electric lines on the Bogie Channel bridge and No Name Key was heard before the BOCC on January 20, 2010. 0 MEMORANDUM Office of the County Administrator TO: Board of County Commissioners FROM: Debbie Frederick Deputy County Administrator DATE: December 1, 2009 SUBJECT: County Divisions' Monthly Activity Report for November, 2009 MONTHLY ACTIVITY REPORT — NOVEMBER, 2009 KEY WEST AIRPORT • Because of the "Miracle on the Hudson," involving a US Air 737 in January of this year, the FAA has mandated increased emphasis on wildlife management and birds in particular. As a result, in November several airport staff members participated in two days of Wildlife Hazard Management Plan (WMHP) training. • The Director of Airports made a presentation to the Key West Rotary Club discussing the recently completed passenger terminal complex at Key West International and the upcoming Runway Safety Area project. • The installation of artwork is nearly complete in the new terminal buildings and Air Tran airline is almost ready to begin operations here at the airport. Their first flight will arrive on December 17`" MARATHON AIRPORT • Notice of Calling for Bids/Proposals was advertised for a fourth car rental agency and there were no responses received. • Request for Proposals document is being developed for a restaurant in the terminal. Consideration to hold this in abeyance may be appropriate while the proposal to establish a U.S. Customs Services facility at the airport is explored, due to potential of competing interest for available space in the terminal. • Award of bid to Oshkosh Corporation and execution of contract documents was approved on November 18, 2009 by the BOCC for ARFF Vehicle and Equipment for the airport in the total bid amount of S317,747.01, including associated and related equipment. Project funding is through a Joint Participation Agreement (JPA) with Florida Department of Transportation • Through -the -fence agreement with Florida Keys Mosquito Control District has been drafted and submitted to FAA for review: FAA review is still pending. • Special Events: • Skydive Sebastian held an event on November 5 — November H. 2009; actual skydiving activities were limited due to meteorological conditions (high winds). • Experimental Aircraft Association (EAA) sponsored Aviation Day at Florida Keys Marathon Airport on November 14, 2009: attended by an estimated 1,200 people and 124 young eagles were flown. • Several construction and operations related projects continue to be in various stages of completion at the airport including: 9 HMGP Wind Retrofit (Hurricane Shutter) Project: Phase II — This project is under contract FDOT Sign Permit Request — staff is submitted a sign permit request to DOT for the drih: ,. t connection for the Medical Examiners Building at the request of the Overseas Heritage Coordinator. (ongoing). No Name Key Bridge/Keys Energy — Engineering staff is working with County Attorney, Growth Management and Keys Energy regarding installation of electrical service infrastructure on No Name Key Bridge and county right of way. Staff will be drafting letter to Keys Energy confirming 1951 Resolution giving the utility right to install electric transmission equipment on County roads & bridges. Duck Key Bus Shelter — staff working with Clear Channel on request from Hawks Cay Resort to install a bus shelter on US 1 at Duck Key. Staff is coordinating with DEP Overseas Heritage Trail and DOT project staff. Burton Memorial United Methodist Church Road Abandonment — staff researching historical right of way abandonment with Property Appraisers office to determine status of 1992 petition previously approved by BOCC. Engineering Services tangoing Work General Right of Way permits reviewed - 6 Right of way permits issued — 5 Inspection of completed right of way work - 4 FKAA pavement cuts notification for inspection received/routed — 8 Assistance to code enforcement on right of way issues: inspection of locations with potential violations, providing engineering opinion of circumstances — 6 locations Staff handled various calls from public regarding wastewater assessment payoff, drainage and flooding complaints, miscellaneous sewer and road inquiries, requests for street light installation, traffic signal timing PROJECT MANAGEMENT ADA Compliance Survey and Assessment — Public review of the Evaluation Assessments reports placed in the Key West Library, Marathon Library and Key Largo Library is ongoing. ADA Compliance Transition Plan Negotiations —BOCC approved commencement of negotiations with the number one ranked firm on 19a' of August 2009. First negotiation meeting held August 27th, 2009. Second meeting held on October 271h 2009. Staff compiling and providing to Bender & Associates copies of county policy and procedures, program services, Evaluation and Survey Assessment documents, etc. Vendor submitted project proposal to Project Management September 2009. Bender's initial proposal was for over $300k which exceeds budget for project. Bender submitted new proposal on September 23`d. Contract submitted to Bender for signature. Expected to be on December BOCC agenda. Warranty Support to Public Works — Staff continues to provide on -going warranty support to Public Works for the Murray Nelson Government Center, the Freeman Justice Center, Big Pine Park, Medical Examiner Facility and the Big Pine Key Fire Station #13. Litigation Support to the County Attorney Office — staff continues to provide on -going litigation research, documents, and support for the Freeman Justice Center, Tower Group v. Monroe County as well as Monroe County v. Gonzalez Architects o Freeman Justice Center Litigation —legal research and negotiations for a settlement agreement on -going. Draft agreement prepared by outside counsel in coordination with County Attorney's office was under review by all parties. Meeting held with Tower/OHL on October 19`h 2009 agreement reached but not yet signed by Tower/OHL. The Solar Community of No Name Key 1934 No Name Drive No Name Key, Florida 33043 12/16/2009 BOCC Regular Meeting, Marathon, Florida Agenda Item O-1 • Page 11115: Staff's Intention to Draft Letter to KEYS Energy Systems Giving the Utility the Right to Install Electric Lines on Bogie Channel Bridge & No Name Key. From: "Hutton -Suzanne" <Hutton -Suzanne Cu�MonroeC..ountv+l_.Gov> Date: November 30, 2009 2:29:46 PM EST To: <toharaCg)keymews.com> Subject: FW: No Name Key and 1951 Resolution Tim, Thanks for asking. Hope you had a nice long week -end too. Regarding your email today, below is an email I previously sent. Nothing has changed since that time to affect my opinion that KES has the authority to provide electricity to NNK & he Gounty_has:done natht to=retractor reduce the permission to use the.. County R_OW''s_They will have to comply with our ordinances about repairing any damage to our roads & bridges if there is any damage, but that is the extent of our authority regarding their provision of electricity to NNK since state legislation authorizing them to provide electricity supercedes our comprehensive plan. S.,F. 4. ,7/,4y. County Attorney 1' a No'yote• the double underhmn was added for en h s. Monroe County SCNINK Comment: As stated previously by Attorney Mutton and Growth PO Box 1026 Management staff, adopting, a Resolution that retracts the ROW permission Key West, Fi. 33041-1026 Vgy)osed h be graracd by the "1951 Resolution" would be a simply task for this 305-292-3470 Commission. From: "Hutton -Suzanne" <Hutton-Suzanne(a)MonroeCounty-Fl_.Gov> Date: November 30, 2009 3:25:29 PM EST To: < gharaCa%keysneNv_s.com> Subject: RE: No Name Key and 1951 Resolution Actually, no. There is a process in the County Code to get approval to use the ROW via the Public Works Director through the County Engineer. Unless there is some anomaly, #he�rocess can be handled_ - -- administsativejy handlgd_by staff_. $u�aaure r�. '�utea.c County Attorney Picase Notc: the double underlining was added for emphasis. Monroe County SCNNK Cornment: By any standard, the adoption of t.DR 9.5-258 (CBRS PO Box 1026 Key West, FI. 33041-1026 Overlay District Ordinance No. 43-200I) would qualify as an ariqmaly to ROW 305-292-3470 approval for utilities to cross the Bogie Channel Bridge to No Name Key. From: Tim O'Hara [mailto:toharankeysnews.com] Sent: Monday, November 30, 2009 2:55 PM To: Hutton -Suzanne Subject: RE: No Name Key and 1951 Resolution Suzanne, Thanks. The County Commission would have to approve allowing KEYS to place the wires and cables on the bridge to get the power out there right? Tim January 20, 2010 Regular Meeting of the BOCC Key West, Florida Agenda Item 0-3: (County Attorney's Item) "Discussion of 1951 Resolution and June 2007 legislation allowing Keys Energy Services to utilize County rights of way and bridges to provide electrical service to No Name Key, and reaffirmation of resolution, provided that any obstruction, whether permanent or temporary, to said bridges and right of way, or any physical changes there are coordinated with the Engineering Department in compliance with County ordinances regarding its roads and bridges and that Keys Energy will maintain lines and whatever structural supports they install to support lines." Outcome: Staff did not present a comprehensive report on the issue of electric service to No Name Key. The BOCC voted NOT to write a letter granting permission to KES until the other issues were addressed. And, the Board voted to put all of the issues on hold until the USFWS's position on the issue is known. Please see the attached January 20, 2010 letter to the BOCC from the Solar Community of No Name Key, which includes important excerpts from Judge Payne's Summary Judgment regarding the extension of commercial power No Name Key and the Year 2010 Comprehensive Land Use Plan. Attorney Hutton stated that her position is partly based on the 1951 BOCC Resolution and partly based on a 5t' District Court of Appeals case, St. Johns County v Department of Community Affairs, a copy of which is attached. Please note this court case does not involve the extension of new infrastructure through and/or into a federally designated Coastal Barrier Resources System unit such as the CBRS unit FL-50 on No Name Key. 10, The Solar Community of No Name Key 1934 No Name Drive No Name Key, Florida 33043 January 20, 2010 Regular BOCC Meeting, Key West, Florida Ref: County Administrator's Item 0-3 Dear Mayor Murphy and Fellow Monroe County Board of County Commissioners: Our attorney, Richard Grosso, apologizes for not being able to attend today. He has a conflict due to his teaching schedule. That said, please be advised Mr. Grosso participated in the crafting of this letter. The taking of any action on this issue by the County today is clearly premature. Below we explain our rational for this statement. That said, we thank the Commission very much for having this item placed on the agenda elevating this major policy decision to the Commission itself. Last month's Administrator's Report revealed Staff s intention to grant approval for the use of the County's rights of way and bridge to reverse long-standing County policy by allowing the extension of commercial power to No Name Key. This action would have been in conflict with the 4-1 BOCC vote of 06/17/2009 that directed Staff to bring a Report back to the Board with answers to, at a minimum, four specific questions. The four specific questions were: 1.) How can we preserve the character of the island if electric service were to be extended to No Name Key; 2.) What is Fish and Wildlife's current position on this issue; 3.) Was the 1951 Resolution addressed in the 1999 Circuit Court case heard by Judge Richard Payne; and 4.) What are the potential liabilities on either side of the decision to allow the extension of commercial power to No Name Key? [See Official Minutes pages 126-127.] Question #3 was answered by County Attorney Hutton at the July BOCC meeting when she reported that she had gone through the No Name Key Circuit Court case file and had found nothing to indicate that either the Keys Energy Service's Enabling legislation or the 1951 Resolution were part of that case. [See Tape @ 4:30 P.M. and Official Minutes page 157.] The answers to the three remaining questions have not yet been reported to this Board. One of the answers is dependent on the outcome of the federal government's review process. Because No Name Key provides habitat for four federally endangered species and is also designated as a Coastal Barrier Resources System unit, this review will be multi -faceted. We would, therefore. ask for this Board to please re rain from voting on this agenda item until the completion of the federal review process. Mr. Grosso would like to call attention to the following language in Judge Richard Payne's Order Granting Summary Judgment in Favor of Defendants, July 11, 2002. "Section 366.03, Fla. Stat. does not apply to defendants Monroe County or City Electric Service. Even if it did apply here, Section 366.03, Fla. Stat., does not provide the right to commercial electric service if such service would be inconsistent with Chapters 163 and 380 or the Monroe County Comprehensive Plan.... This negates a claim of a statutory entitlement to the receipt of electric power in a manner that is inconsistent with a local comprehensive plan." [See attached.] Unfortunately, there seems to be a lot of (mis) information, along with various "legal opinions", being thrown around surrounding this issue. A personal opinion, in and of itself, is not a legal opinion. There has to be a law and/or a court ruling to support a legal opinion, and the County should not reverse a long-standing policy and approve something contrary to its comprehensive plan without an objective opinion by a legal expert in the field. Given that Monroe County has a special land use attorney on its payroll, and that the proponents of this issue are making various legal claims, the County should solicit and receive a formal legal opinion as to these claims. This opinion should include what law and/or court rulings exist which actually support the proponent's claims. It is simply not accurate to unequivocally announce. "State law trumps the Comp Plan." In general, if state law allows something, a local comprehensive plan can be more restrictive unless the state law expressly prohibits the local government from being more restrictive. In this matter, Judge Payne has already ruled on precisely this exact point when he wrote: "Plaintiffs have no statutory or property right to have electric power extended to their homes..." Furthermore, it is grossly inaccurate to claim that individual commissioners are personally liable when their actions wind up overturned by the courts. The law in general is just the opposite because otherwise there would be total chaos. Government would be paralyzed. The statues, court rulings and legal opinions on the personal liability of government officials applies only in a very limited number of instances when, for example, there was an intentional violation of civil rights or personal liberties. Anyone making such claims should be required to back them up with a specific law or court order. The ONLY prudent approach to this issue would be to avoid voting "Yes." The only way either side has the basis for a valid lawsuit would be for this commission to vote "Yes." A decision to delay the vote until the federal review process is complete would be consistent with the Year 2010 Comprehensive Plan. A decision to vote "No" on the grounds that, according to County Attorney Suzanne Hutton, Keys Energy Services already has permission to use of County rights of way and bridges to provide electrical service to No Name Key, would be consistent with the Year 2010 Comprehensive Plan. We ask you to please consider some of the issues we have raised here today. And, we ask you to please refrain from voft on this agenda item until after the federal review,process is complete. Sincerely, //s// Alicia Roemmele-Putney, President cc: Attorney Richard Grosso, Everglades Law Center, Ft. Lauderdale, Florida. Attachments: July 11, 2002 Order Granting Summary Judgment and Section 366.03 Fla. Stat., 3 pages. C+.uut/uun Page 2 of 5 Mstlaw. 836 So.2d 1034, 28 Fla. L. Weekly D126 (Cite as: 836 So.2d 1034) H District Court of Appeal of Florida, Fifth District. ST_ JOHNS COUNTY, Appellant, v. DEPARTMENT OF COMMUNITY AFFAIRS, Department of Transportation, 1000 Friends of Florida, Inc., Friends of the Matanzas, Inc., Patrick Hamilton, George Hamilton, and G. William Hamilton, Appellees. No. 5D01-3413. Dec. 27, 2002. Rehearing Denied Feb. 3, 2003. Petitioners sought declaratory statement from De- partment of Community Affairs that installation of public facilities had to be included in county com- prehensive plan to allow public a voice in policy level of county planning. The Department dis- missed petition. Petitioners appealed. The District Court of Appeal, 760 So.2d 154, reversed and re- manded the case. On remand, the Department gran- ted declaratory relief. County appealed. The Dis- trict Court of Appeal, Palmer, J., held that petition- ers did not having standing to bring claim for de- claration that county's comprehensive plan had to be amended. Quashed. See also 765 So.2d 216. West Headnotes Zoning and Planning 414 4C=1237 414 Zoning and PIanning 414 V Construction, Operation and Effect 414V(A) In General 414k236 Application to Persons or Places 414k237 k_ Governmental Bodies. Most Cited Cases Page 1 _..Wing and Planning 414 ---238 414 zoning and Planning 414V Construction, Operation and Effect 414V(A) In General 414k236 Application to Persons or Places 414k238 k. Public Utilities. Most Cited Cases Sewer and roadway improvements within county's existing rights -of -way were not subject to statutes regulating county and municipal growth and devel- opment, and thus environmental groups and indi- vidual plaintiffs did not have standing to bring claim for declaration that county's comprehensive plan had to be amended before Department of Transportation's (DOT) project to run water and sewer lines through rights -of -way could proceed. West's F.S.A. §§ 163.3164(241 163.3215(l). *1034 Geoffrey B. Dobson of Dobson & Brown, St. Augustine, for Appellant. David L. Jordan and Alfred O. Bragg, III, Talla- hassee, for Appellee Department of Community Af- fairs. Janet E. Bowman of 1000 Friends of Florida, Inc., Tallahassee, for Appellees 1000 Friends of Florida, Friends of Matanzas, and Hamilton. No Appearance for Appellee Department of Trans- portation. PALMER, J. St. Johns County (County) appeals a declaratory statement issued by the Department of Community Affairs (the Department) opining that the County should amend its comprehensive plan to include certain water and sewer lines that the Department of Transportation (DOT) intended to construct and turn over to the County. Concluding that this case is controlled by our holding in 1000 Friends of Flor- ida, Inc., v. St. Johns County, 765 So.2d 2I6 (Fla. 5th DCA 2000) (" StJohns "), we quash the declar- C 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2. west] aw. com/print/printsveam.aspx?sv=Split&Prft=HTMLE&fi1= top&mt=Li... 1/22/2010 Page 3 of 5 836 So.2d 1034, 28 Fla, L. Weekly D126 (Cite as. 836 So.2d 1034) atory statement.F"I FN I . This court has jurisdiction to review the declaratory statement as final agency action pursuant to section 120.68, Florida Statutes (2001). DOT, in order to improve the water and sewer cap- abilities of two rest stops on Interstate 95 in St. Johns County, entered into an agreement with the County to build certain water and sewer lines over a distance of more than six miles to connect to exist- ing services provided by the County. The agree- ment further provided that *1035 DOT would be re- imbursed for the cost of the lines through any fees the County would collect from parries who connec- ted to the lines in the future. The instant petition for declaratory relief was filed by two environmental groups and three owners of real property allegedly Iocated in the vicinity of the water and sewer im- provements. In that regard, on April 10, 1998, 1000 Friends of Florida, Inc., Friends of the Matanzas, Inc., Patrick Hamilton, George Hamilton, and G. William Hamilton (hereinafter collectively referenced to as "Friends") filed a petition for declaratory relief dir- ected to the Department. In its petition, Friends al- leged that DOT had applied for, and received, a permit from the Florida Department of Environ- mental Protection to install and maintain a 12 inch sewer line and a 12 inch water line between two rest stops on Interstate 95. Friends alleged the lines, sufficient to provide sewer and water to thousands of people, were planned to be installed over largely undeveloped rural land, and that such construction would "induce growth and cause the premature conversion of rural, vacant land to a higher density residential and higher intensity commercial" use. They further alleged that the County agreed to re- imburse DOT for the cost of these lines. Friends as- serted that the County failed to comply with the es- sential requirements of the law in allowing these improvements to be made and agreeing to pay for them without first amending their comprehensive plan. More specifically, Friends alleged that these Page 2 new public facilities should have been addressed and incorporate into the future land use, sanitary sewer and potable water, and capital improvement elements of the County's comprehensive plan. The County responded by arguing that a grant of re- lief was not warranted because Friends was not a "substantially affected person" and thus lacked standing to assert a claim and, in the alternative, that the lines would improve the environment by eliminating the use of wells and septic tanks, and that the County only agreed to pay back to DOT, a share of what the County received in future sewer and water connection fees for a limited number of years. The Department referred the petition to an adminis- trative law judge ("ALJ"). In referring the matter, the Department expressed concern that Friends was primarily seeking relief that pertained to parties not named in the action, to wit: the County and DOT. The Department additionally stated that it was ne- cessary to refer the matter to the ALJ for a section 120.57(1) formal hearing FNz to determine whether a declaratory statement should properly issue in this case because the County's response raised material issues of disputed fact. FN2. See § 120.57, Fla. Stat. (1997). The ALJ entered an order recommending dismissal of the Friends' petition. To support its recommenda- tion the ALJ first found that the Administrative Procedure Act does not contemplate declaratory statement hearings of any nature to be conducted by an ALJ and that the court therefore lacked jurisdic- tion to review the matter. Second, the ALJ con- cluded that even if jurisdiction existed, the declarat- ory statement request was subject to dismissal be- cause it sought guidance for the determination of conduct of another person; namely, the County, as to whether it should have begun implementing a comprehensive plan amendment before allowing DOT to undertake the project. The Department ad- opted the second portion of the ALJ's recommended order and dismissed the Friends' petition. ® 2010 Thomson Reuters, No Claim to Orig. US Gov. Works. http:llweb2.westlaw.com/print/printstneam.aspx?sv=Split&prft=HTML,E&fn=_top&mt=Li... 1 /22/2010 Page 4 of 5 836 So.2d 1034,28 Fla. L. Weekly DI26 (Cite as: 836 So.2d 1034) *1036 Friends appealed that ruling to the First Dis- trict Court of Appeal. On appeal, Friends asserted that their petition should not have been dismissed merely because it might indirectly affect the in- terests of DOT and the County. They argued further that they were entitled to be given a point of entry to challenge the extension of the water and sewer lines under Chapter 163 of the Florida Statute, but had been deprived of same when the County and DOT refused to process a plan amendment. The First District set forth in its opinion the applicable statute and rule, section 120.565, Florida Statutes (1997) and Florida Administrative Code Rule 28-105.001, and then concluded that the petition should not have been dismissed. 1000 Friends of Florida Inc. v. State, Dept of Community Affairs, 760 So.2d 154 (Fla. 1st DCA 2000) ("Community Affairs"). The court, accordingly, reversed the dis- missal order and remanded the cause "for consider- ation of the merits of appellants' petition for declar- atory statement." Id. at 158. The County then filed a motion for clarification, as- serting that the opinion was "susceptible of an in- terpretation that the court has determined [Friends] are `substantially affected persons' within the mean- ing of section 120.565, Florida Statutes (1997)." Id The First District granted the motion, clarifying that the decision had not determined whether Friends was a substantially affected person. The present case on appeal is the appeal after re- mand of the First District's Community Affairs de- cision. Upon remand, the Department conducted an informal hearing and decided to grant declaratory relief. In a 17 page declaratory statement, the Sec- retary of the Department set forth the procedural history of the case, the facts as stated by Friends, his independent conclusions of law, and a ruling on DOT's motion for attorney's fees. The Secretary first explained that the declaratory statement was being issued based only on the facts as stated by Friends because the Division of Ad- ministrative Hearings had previously rejected the Department's request for a formal hearing in which Page 3 disputed issues of material fact could be heard. The Secretary, in his order, specifically stated that the Department "will not [in this declaratory statement] attempt to resolve the disputed issues of fact raised by DOT and [the County]." The Secretary next ad- dressed the applicability of Part II of Chapter 163, the Growth Policy Act and the Local Government Comprehensive Planning and Land Development Regulation Act, to the instant proceeding. The Sec- retary rejected Friends' contention that "St. Johns County failed to comply with the ... essential re- quirements of law by allowing FDOT to construct [ (the water and sewer lines) ] ... without first pro- cessing an amendment." (Emphasis added). The Secretary, however, agreed with Friends that the County "should adopt an amendment to include the water and sewer lines in its Comprehensive PIan." The County timely filed an appeal of the declarat- ory statement. In 1000 Friends of Florida, Inc. v St. Johns County, 765 So.2d 216 (Fla. 5th DCA 2000) (" St -Johns "), we reviewed a separate lawsuit brought by Friends for injunctive and declaratory relief against the County and DOT arising out of this same matter. In & Johns, this court affirmed the dismissal of the action on the basis that Friends lacked standing to prosecute the action. Although Friends conceded that they lacked standing under section 163.3215(1), Florida Statutes, they asserted that they nonetheless possessed standing to contest the project because the project was a "public facil- ity." They reasoned that the County should have amended its comprehensive plan because a *1037 public facility should be included hi the compre- hensive plan. This court, while agreeing with Friends that they lacked standing based on section 163.3215, further noted that the Florida supreme court, in Rinker Materials Corp. v. Town of Lake Park, 494 So.2d 1123 (F1a.1986), held that sewer and roadway improvements within rights -of -way are not subject to the requirements of part two of Chapter 163. The court further concluded that Friends tacked standing to prosecute the action be- cause no showing was made that the County was ® 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prf--HTMLF,&fn— top&mt=Li... 1/22/2010 WJ VV't/ VVU Page 5 of 5 836 So.2d 1034, 28 Fla. L. Weekly D126 (Cite as: 836 So.2d 1034) required to amend its comprehensive plan before the project could proceed, or that any procedural ir- regularity occurred. St. Johns, 765 So.2d at 217-218 . In St. Johns, Friends conceded, as they have in this appeal, that the sewer and water lines fall outside of the defuiition of development and that they thus have no means of preventing the construction of the lines by asserting a challenge to a development or- der under section 163.3215(1) of the Florida Stat- utes. They contended instead that, because the project was a "public facility" within the meaning of section 163.3164(24), the County should have amended its comprehensive plan to include the lines. This court rejected that argument by noting that the supreme court in Rinker, held that sewer and roadway improvements made within rights - of -way are not subject to the requirements of part two of Chapter 163. In Rinker, the supreme court concluded that, because nothing in the record sug- gested the drainage, roadway, and sewer improve- ments were outside of a town's existing rights of way, there was no requirement that they be "consistent with" the towns comprehensive Iand use plan. Rinker, 494 So.2d at 1126. This court ruled that Rinker provides a blanket exception from comprehensive plan requirements for road and sew- er improvements, no matter their size or scope, as long as they are constructed within existing rights - of -way. The Department and Friends in the instant case of- fer substantial reasons as to why a significant addi- tion to a sewer and water system such as the addi- tion of six -stile long main lines should at least be addressed (even if post -construction) in an amend- ment to a local govemment's comprehensive plan. Neither are able, however, to get around the partic_ ularly broad statement made in St. Johns, that Rink- er "held that sewer and roadway improvements within the rights -of -way are not subject to the re- quirements of part two of Chapter 163." This court was aware of the fiscal implications ar- gument in St. Johns, In St. Johns, it was in fact, the Page 4 Only argument that Friends used because they con- ceded that they did not possess standing under sec- tion 163.3215(1). This case is controlled by the holding of St. Johns, The declaratory statement should not have been issued because this court, be- fore the declaratory statement was decided, determ- ined that Rinker makes all road and utility improve- ments completed within existing rights -of -way ex- empt from the Growth Management Act. Accordingly, the Department's declaratory state- ment is hereby QUASHED. SHARP, W. and HARRIS, JJ., concur. Fla.App. 5 Dist.,2002. St, Johns County v. Department of Community Af- fairs 836 So.2d 1034, 28 Fla. L. Weekly D126 END OF DOCUMENT ® 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2'Westlaw.com/printJprintstream-aspx?sv=Split&prft=HTMLF&fn= toP&rarLi... 1/22/2010 Many Far -Reaching and Complicated Comprehensive Land Use Plan Amendments Would Be Required Beginning_ in 19966 when Monroe County was first asked to interpret the Year 2010 Land Use Plan to determine whether or not commercial power could be extended to No Name Key, the County has taken the position that such a project would be inconsistent with the Comp Plan and Chapters 163 and 38o FS. Please see the attached August 2, 1996 letter from County Administrator Roberts to City Electric System. The assertion that there is only one policy of the Comprehensive Plan that would require amendment is completely inaccurate. Please see the attached May 13, 1998 Letter of Understanding from Planning Director Timothy Mc Garry, ACIP, to Attorney Frank Greenman. There are dozens of goals, objectives and policies that would need amendment. Here is a partial list of those areas in the Plan that would require amendments. 1.) the extension of utilities into Coastal Barrier Resources System units; 2.) the extension of Florida Keys Aqueduct Authority pipeline into certain areas of the Florida Keys Refuges with hardwood hammock habitat, including all of No Name Key; 3.) the protection of endangered species; 4.) secondary impacts in endangered species habitat; 5.) the protection of conservation lands; and 6.) the protection and enhancement of the existing community character. In addition to specific Goals, Objectives and Policies, amendments of the Comprehensive Land Use Plan must be found to be consistent with the "overall intent" of the Plan. Quoting from the Technical Document, the stated overall intent of the Year 2010 Comprehensive Land Use Plan is "to alter both the rate and distribution of growth so as to ensure that future development patterns and land use in Monroe County reflect three critical land use determinants. These are: 1. Improve development efficiency; 2. Improve community character; and 3. Protect the natural resources." Please see the attached December 21, 1999 letter from Planning Director Marlene Conaway to Attorney Frank Greenman stating that "there are simply too many policies in the Comprehensive Plan which would be in conflict with an amendment..." to allow the extension of commercial power to No Name Key." [Page 1, paragraph 3.1 e james L. Roberts Country Administrator 5100 College Road Public Service Bldg. wind jr, Stock Island Key West., Florida 33040 (305) 292-4441 Phone (305) 292--4544 Fax AUGUST 2, 1996 Mr. male 2. F.inigan Director of Engineering Utility Board of the City of Key West P.O. Drawer 6100 Key west., Florida 33041-6100 Dear Mr. Finigan: ie ID .:at. 9k, G9ey --f.A%(4 441�..- Vk "AkA- /NOw*$A- 4xkt'. Thank you for your recent letter in reference to electric service at No Name Key. This appears to be .an ongoing issue and one that harp alioady boon before the Board of County Commissioners an January IS, 1995. You shOuld bQ aware that on that date, thu Board Of County Commissioners decided that it would not support the extension of electric service to No NaMe KOY. Also, you should know that the Monroe County 2010 COMprehensive Plan as adopted has policies which are clearly not in support of such an extension. of electric service. Please see attachments_ Therefore, 1 must suggest to you that the County does not support extension of electric service to No Namo Key. If you have any further quesrt:3ons, plOase do not hesitate to let: me know. very truly yours, James L. Roberts .7 LR :.I j s County Adminlatrat:or cc: socc Bob Herman Dent Pierce Dave Koppel AKO& OUNTYof MONROE KEY WEST FLORIDA 33040 it Vie: Franklin Greenman Greenman & Manz Gulfside Village, Suite 40 5800 Overseas Highway Marathon, FL 330SO RE: Letter of understanding for the electrification of No Name Key Dear Frank: S,jARD OF COUNTY COMMISSIONER MAYOR, Keith Douglass, District 4 - Mayor Pro Tem, Jack London, District 2 Wllhelmina Harvey, District I Shirley Freeman, District 3 Mary Kay Reich, District 5 Monroe County Planning 2798 Overseas Hwy Suite 410 Marathon, Florida 33050 May 13, 1998 frt�V-� iz. 'r�-tLx Pursuant to Sec. 9.5-43 of the Monroe County Code, Amended, this document shall constitute a letter of understanding. On March 25, 1998, a pre -application conference regarding the above -referenced project was held in the Marathon Planning De- partment office. Attendees of the meeting included Franklin Greenman, Richard Melahi, Ernest and Barbara Damon, Tracy Bockenhauer, Terry and Pam Morrison, Joe and Dira Juhasz, Aldone and Bernard Siczek, Harry and Janet Wallis and Francisco Pichel thereafter referred to as "the applicant"), Elizabeth Trotter, Court Reporter, and Antonia Gerli, Development Review Coordinator (hereafter re- ferred'to as "the Planning staff"). The applicant is proposing to provide electricity to the resi- dents of No Name Key. The Planning Department finds that the proposal is inconsistent with both chapters 163 and 380 of the Florida Statutes and the Monroe County Year 2010 Comprehensive Plan. Pertinent facts related to this issue are listed below: The intent of chapter 163 of the Florida Statutes is, in part, to cause local governments to encourage appropriate use of land, water, and resources, consistent with the public interest; and deal effectively with future problems that may result from the use and development of land within their jurisdictions. Page 1 PRNONAME/TXTDR SCNNK — History of Con- r ', E'1ectn-d*ty ` ''`P*O fvf 1evt► Gof hers — l l /2008 Some of the Documentation Regarding the Extension of the New Infrastructure of Commercial Electricity to the Island of No Name Key, Florida 1996 — 2007 Assembled by: The Solar Community of No Name Key 1934 No Name Drive No Name Key, Florida 33043 SCNNK — History of Commercial Electricity — Packet for New Commissioners—11/2008 January 3191996 Letter from Monroe County Acting Planning Director Ms. Antonia Gerli to Mr. Dale Finigan City Electric Service (CES) of Key West • Notifying City Electric Service of Key West (CES) that the Monroe County Year 2010 Comprehensive Plan took effect on January 5,1996• • And, that Policy 102.8.5 of the Year 2010 Plan states "Monroe County shall initiate efforts to discourage the extension of facilities and services provided by Florida Keys Aqueduct Authority and private providers of electricity and telephone service to CBS (Coastal Barrier Resources System) units." • A copy of the portion of the Comprehensive Plan pertaining to the CBRS and a copy of the Federal regulations pertaining to the Coastal Barrier Resources System were attached to the letter from Ms. Gerli to CES. ou"ROE KEY WME67 FLORIDA43040 Dalc Finigan, Engineering Super_ntendent City Electric system Post Office Drawer 6100 Key West, FL 33041-6100 RE: Electrical Service . No Name Key near mr. Pinigan, IDNEPS 1 Ans'd �4 �\t - by ram•{+ l C.1 Planning Department Suite 410 2796 overseas Highway Marathon, FL 33050 January 22, 199G On January 5, 1996, the Monroe County year 2010 Comprehensive Plana took effect. Objective 102.8 of the Plan states that Mon- roe County shall tale actions ec discourage private develc�gment its tem. designated as units of the Coastal Barrier Resouroea System. Under thik; objective, Policy 102.8.s of th© Plmn states that "Monroe County shall initiate etforr_e to discourage the exten- ,3zo:z of fixr�i3itifla ansa 9�rviee€� provided by Florida Key Aqueduct Aut;nority and private providers of electricity and telephone service to CBRS (Coastal harrier Resources System) snita,'r With the except or, of a small portior. of Bahia Shores 9ubdivi- eion, all of No Name Kay live wia Costal Barrier Ret�ourcee System unit, In an effort to discourage development within this syrtem, all applications for awards in the residential dwelling unit alloca- tion (ROCO) syRttm w4.11 be awarded nee ative points when located in za CBRS unit. Tn addition, all privately -owned undeveloped lan3 located within a CBRS unit ie coneiderod for acquisition by Monroe County for conservation purposes. FES 96 13:29 NO.006 P.02 I have enclosed a copy of the portion of the Comprehensive Plan pertaining to the CBRS and a copy of the Federal regulations pertaining to the Goaetal Barrier Resources System. when other information on the subject becomes available, we will forward it to your office. If you have any questions, please do not hesitate to call me at 289-2500. Very truly yours, Antonia Gerli Acting Planning Director cc. Robert Herman, DiracLor of Growth Management CES/TXTGERLI a SCNNK — History of Comma Electricity — Packet for New Comrr iers—11/2008 May 9, 1996 Letter from Monroe County FEMA Coordinator Ms. Dianne Bair to No Name Key Resident Ms. Alicia Putney • Confirming all of No Name Key, with the exception of the two oldest platted subdivisions of the Amended Plat of Bahia Shores (197o) and the Amended Plat of Dolphin Harbour (1973), are a part of CBRS unit FL-50. • And, explaining the significance of a CBRS unit designation in terms of federal funding, including FEMA flood insurance and loans for new construction. • It should be noted, Monroe County's policies and regulations regarding CBRS units within Monroe County are separate and distinct from the federal government's policies and regulations. j7, OUNTYof MONROE my WFS-1, VI-01-11DA 33040 BARD OF C01UNI Y COMM I S�; Kr` N! 'I V, Mayor Pro Tern, Jack London, District 2 ViWidmina We, DIU" 1 Mary Kay Reich, [)jsUicj 5 Keith Douglas, Doom 4 "Wa VUtDOY May 9, 1996 2150 Nu Name Drive N" Namo Key, VL 33043-520-2 RE: Coastal Barrier Resource SysLum Unit Designation Name Key and No in receipt of Your letter dated May n, 1996 and tlmo answe,t, of Your questions is yes, W"Pmhur 4, 1992 CMRs Map, trig ipuLecj UhaL all of No Name Key lies within the CBRS designation c >, '04% two of the five subdivisions." it-ement. l i correct. The only subd.iv.j.E_; C o t rom ro Naii-I Z-11-1d Amended plat h Bai n' ._ Dolphin Harbour. Dolphin Estates, Galleon Bay and Unrecorded Plat -East Wi j I End of Key are all located .nhir a Caw', The Coastal Barrier ResOurceH Act of 1992 was qreaLly enlarged by tB j)j�� 1990. arrier Improvement P.ct of - On nctober 21, 1992, November 15, lq93 and February 23, 1995, the houndaries were again mode tied. The result of all of LKy modifications was to impose a Federal flood insurance bull I - _01.' ol' substantially improved structures in added to k-he C13R,D' on or after those dates. n1w answvc to your second question is also yes. [L is 1-11Y understandinc j that federal fund:jt-j9-, inc] udinq NAli Iona l. Flood insurance, A no longer availahi'le for any now "elOPMent of prnpertins that lie within Lion" 0*. The resull-, of the Coastal Barrier Resources Act of 1982, and the Coastal Barrier improvement Act of 1990 was Lo prohibit the issu- cari("(-a of new Federal flood insurance coverage for. any new con- smocKun cr: substantially improved struntures locam-1 Mese nywemw. he (-)f further assisLance, please do i.).ot Inesit-ate to contact me. Manne Bair, ITEMA Mordinato.i: SHELL .OS/TXTMDB SCNNK — History of Commercial Electricity — Packet for New Commibstoners — 11/2008 August 21 1996 Letter from Monroe County Administrator Mr. James L. Roberts to Mr. Dale Finigan City Electric Service (CES) of Key West • Stating that the issue of electric service to No Name Key had already been before the Board of County Commissioners on January 18,1995• • And, that the Board of County Commissioners decided they would not support the extension of electric service to No Name Key. • And, that the Monroe County Year 2010 Comprehensive Plan has policies which are clearly NOT in support of an extension of commercial power to No Name Key. • And, finally, reaffirming that "Monroe County does not support extension of electrical service to No Name Key." BOARD OF COUNTY COMMISSIONS MA)'OH. Shv!ey Free'nar (}s'.ncI 3 O! ' �� Q� O � � � � Mayor Fro Tern, Jack Lo��O� tnc; on �stt U M Wilheirnina Harvey, 04SWc1 I KEY WEST FLORIDA 33040 Mary Kay Retch. Dishict t 1305, 294-4641 Keith Douglass, DtSINC' James L. Roberts County Administrator 5100 College Road Public Service Bldg. wing II, Stock Island Key West, Florida 33040 (305) 292-4441 Phone (305) 292-4544 Fax AUGUST 2, 1996 Mr. Dale Z. Finigan Director of Engineering Utility Board of the City of Key West P.O. Drawer 5100 Key West., Florida 33041-6100 Dear Mr. Finigan: C� A�Gs�r� Co f- f-'6A%s4 /1Q ilj.�Ottia+•Q.r �'�' Thank you for your recent letter in reference to electric service at No Name Key. This appears to be an ongoing issue and one that has already boon before the Board of County Commissioners on January 18, 1995. You should be aware that on that date, the Board of Country Commissioners decided that it would not support the extension of electric service to No Name Key. Also, you should know that the Monroe County 2010 Comprehensive Plan as adopted has policies which are clearly not in support of such an extension of electric: scrvic:e. Please see attachments - Therefore, I must suggest to you that the County does not support extension of electric service to No Name Key. if you have any further quest ions, pl(,a-,e do riot hesitate to let me know. JLR:IIs cc: BOCC Bob Herman Dent Pierce Dave Koppel Very truly yours, James L. Roberts County Administrator .04111k SCNNK — History of Commei Electricity — Packet for New Commi, ers—11/2008 May 13,1998 Letter from Understand (LOU) from Monroe County Planning Director Mr. Timothy J. McGarry, AICP to Mr. Franklin Greenman, Attorney for Taxpayers for the Electrification of No Name Key, Inc. Stating, "Monroe County cannot support a project to extend commercial power to No Name Key because it would be inconsistent with Monroe County's Year 2010 Flan and both Chapters 38o and 163 of the Florida Statues." And, that "Taken collectively, the goals, objectives and policies of the Monroe County Year 2oio comprehensive plan attest to the County's position that all mod+yeloprnenL including elec cation, must be diseouraed ran No Name KM. And, "In support of this position, the County, as well as state and federal authorities, have expended (and continue to expend) considerable funds on the purchase of lands on No Name Key in an effort to ensure that the primary and secondary impacts of development will not occur on the island. This letter of understanding (LOU) is the basis for the Administrative Appeal filed by Attorney Frank Greenman on behalf of the Taxpayers for the Electrification of No Name Key, Inc. that was heard by the Monroe County Planning Commission in 1998 and 1999• OUNTYof MONROE KEY WEST FLORIDA 33040 Franklin Greenman Greenman & Manz Gulfside Village, Suite 40 5800 Overseas Highway Marathon, FL 33050 RE: Letter of understanding for the electrification of No Name Key Dear Frank: BvARD OF COUNTY COMMISSIONERS MAYOR, Keith Douglass, District A Mayor Pro Tem, Jack London, District 2 Wllhelmina Harvey, District 1 Shirley Freeman, District 3 Mary Kay Reich, District 5 Monroe County Planning 2798 Overseas Hwy Suite 410 Marathon, Florida 33050 May 13, 1998 h r klHY i Q 199 r. Pursuant to Sec. 9.5-43 of the Monroe County Code, Amended, this document shall constitute a letter of understanding. On March 25, 1998, a pre -application conference regarding the above -referenced project was held in the Marathon Planning De- partment office. Attendees of the meeting included Franklin Greenman, Richard Melahi, Ernest and Barbara Damon, Tracy Bockenhauer, Terry and Pam Morrison, Joe and Dira Juhasz, Aldone and Bernard Siczek, Harry and Janet Wallis and Francisco Pichel (hereafter referred to as "the applicant"), Elizabeth Trotter, Court Reporter, and Antonia Gerli, Development Review Coordinator (hereafter re- ferred to as "the Planning staff"). The applicant is proposing to provide electricity to the resi- dents of No Name Key. The Planning Department finds that the proposal is inconsistent with both chapters 163 and 380 of the Florida Statutes and the Monroe County Year 2010 Comprehensive Plan. Pertinent facts related to this issue are listed below: The intent of chapter 163 of the Florida Statutes is, in part, to cause local governments to encourage appropriate use of land, water, and resources, consistent with the public interest; and deal effectively with future problems that may result from the use and development of land within their jurisdictions. Page 1 PRNONAME/TXTDR Objective 215.2 By January 4, 1997, Monroe County shall ini- tiate programs which require exploration of feasible alterna- tives to funding of public facilities and infrastructure which will result in the loss of or damage to significant coastal or natural resources, including, but not limited to wilderness areas, wildlife habitats, and natural vegetative communities. Policy 215.2.1 By January 4, 1997, Monroe County shall adopt land Development regulations which require consid- eration of feasible design alternatives for new public facilities and infrastructure proposed within the coast- al zone in order to minimize adverse 'impacts to natu- ral resources. GOAL 1301 Monroe County shall promote and encourage intergovernmental coordination between the County, the munici- palities of Key West, Key Colony Beach and Layton; the Counties of Dade and Collier; regional, state and federal governments and private entities in order to anticipate and resolve present and future concerns and conflicts. Objective 1301.7 Monroe County shall implement mechanisms to identify and resolve intergovernmental coordination needs pertaining to environmental issues and natural resource pro- tection. Policy 1301.7.12 By January 4, 1997, Monroe County shall initiate discussions with the FKAA and providers of electricity and telephone service to assess the mea- sures which could be taken to discourage or prohibit extension of facilities and services to Coastal Barrier Resource Systems units. Taken collectively, the goals, objectives and policies of the Monroe County year 2010 comprehensive plan attest to the Coun- ty's position that all development, including electrification, must be discouraged on No Name Key. In support of this posi- tion, the County, as well as state and federal authorities, have expended (and continue to expend) considerable funds on the pur- chase of lands on No Name Key in an effort to ensure that the primary and secondary impacts of development will not occur on the island. Pursuant to Sec. 9.5-43 of the Monroe County Land Development Regulations, you are entitled to rely upon the representations set forth in this letter of understanding as accurate under the regulations currently in effect. However, the Planning Depart- ment acknowledges that all items required as part of the applica- tion for development approval may not have been addressed at the March 25, 1998, meeting, and consequently reserves the right for additional departmental comment. Page 6 PRNONAME/TXTDR We trust that this information is of assistance. If any questions regarding the contents of this letter, may further assist you with your project, please feel contact our offices {305) 289-2500. TJM/ag you have or if we free to cc: James Roberts, County Administrator Larry Thompson, General Manager, City Electric system Richard Grosso Robert L. Herman, Director of Growth Management Antonia Gerli, AICP, Development Review Coordinator Page 7 7 PRNONAME/TXTDR SCNNK — History of Comm. _ Electricity — Packet for New Comer: ers—11l2008 November 23,1998 Monroe County Planning Department Staff Report In the Administrative Appeal by Taxpayers for the Electrification of No Name Key, Inc. Recommending he Ad-minisLrgahiyeAMmal be denied-. R rt. • The Staff Report includes a description of the community character of No Name Key and explains the importance of "Community Character" as one of the three basic determinants of all future land use decisions in Monroe County. • Many of the Year 2010 Plan's Goals, Objectives and Policies listed in this Staff Report help form the basis for the County's unwavering position that the extension of g.new infrastructure to No Namg Keu would be a clear violation!Qf our lgal comnrehensi-ye la andFlorida statues. MEMORANDUM TO: Planning Commission FROM: Planning Department 0 RE: Appeal of Letter of Understanding Discouraging Extension of Electrical Service to No Name Key nATF.• November 23, 1998 PLANNER: Kimberly Ogren, Comprehensive Planning Manager APPLICANT: Mr. Frank Greenman, Esq. Agent for 17 No Name Key Homeowners PLANNING COMMISSION HEARING DATE: December 1, 1998 ISSUE, Pursuant to Section 9.5-521, Monroe County Code, several No Name Key proper�y owners, are appealing a May 13, 1998, "letter of understanding" from Timothy J. McGarry, Director of Planning. In essence then, the property owners are appealing an interpretation of the Monroe County Year 2010 Comprehensive Plan rather than a decision. (Typically, this board considers appeals of a decision that is made in the form of a development order or a building permit.) BACKGROUND: Mr. Frank Greenman is representing 17 property owners who wish to extend electrical service to their homes located on No Name Key. These property owners recently requested a "pre - application conference" pursuant to Section 9.5-43, Monroe County Code, in order to discuss issues related to their desire to extend electrical service to their properties. The pre -application conference was held on March 25, 1998. The resulting letter of understanding, dated May 13, 1998, outlines the numerous policies from the Monroe County Year 2010 Comprehensive Plan that discourage the extension of electrical services to any properties on the island. As a consequence, the Planning Director has determined that the Planning Department must discourage the extension of electricity to No Name Key. CHARACTER OF NO NAME KEY: No Name Key is a unique island. It is well documented in the comprehensive plan that No Name Key contains some of the most critical habitat for the endangered Key Deer. As such, private development is limited to a few subdivisions on the north end of the island. North of State Road 4A lie the following recorded plats: Amended Plat of Bahia Shores, Amended Plat of Dolphin Harbor and Galleon Bay. Dolphin Estates and the subdivision at the ferry landing are not recorded. Three additional recorded plats, Ocean Heights, Tuxedo Park and Refuge Point, lie deep within the refuge and are undeveloped. The northern portion of the island is also part of the Coastal Barrier Resource System (see attached map). Public utilities and improvements on No Page 1 Fife # 98044 Name Key are limited to Old State Road 4A, Spanish Channel Dr., Bahia Shores Dr. and No Name Dr. Neither water nor electricity are provided. PREVIOUS CONSIDERATIONS OF ELECTRIFICATION OF NO NOME KEY: This is not the first time the issue of electrification of No Name Key has been raised. As the letters contained in the attached packet indicate, several residents of No Name Key have been campaigning for support of the extension of electrical service for many years. Two documents contained in the section "Records related to previous requests for electrification of No Name Key" indicate that the extension letter tfrom supported by the Anton a Gerli1e formernsive plan: Development Review (1) January 31, 19 Coordinator, and (2) August 2, 1996, letter from Mr. James L. Roberts, County Administrator. This time around, the property owners requested a pre -application conference with the Planning Department to discuss the planning issues related to electrification of the island. Mr. Greenman argues, as indicated in the transcripts from that conference, that the issue deserves consideration again because the property owners are now willing to propose that the service be limited to just their already -existing homes. BURDEN IN THIS CASE: By way of its letter of understanding, the Planning Department contends that extending electricity to any home on No Name Key, would be inconsistent with the goals and objectives of the Monroe County Year 2010 Comprehensive Plan and should therefore be discouraged. To get electricity to the appellants' homes, the lines would need to run adjacent to vacant properties, thereby increasing the development expectations of those property owners beyond that which is supported by the comprehensive plan. It is now the burden of the appellant to provide evidence indicating that the Planning Department was in error when it determined that the expansion of electricity to residents to No Name Key should be discouraged based on the goals of the Monroe County Year 2010 Comprehensive Plan. In their appeal, the property owners argue that past approvals and provisions on the part of the County and private service providers, including building permits for homes, certificates of occupancy for homes, paving and maintaining roads, garbage collection and telephone, obligates the County to allow electricity at this time. CONSISTENCY WITH THE MONROE COUNTY YEAR 2010 COMPREHENSIVE PLAN: The Monroe County Year 2010 Comprehensive Plan was developed in coordination with all the entities that have a vested interested in the impacts of development on No Name Key. As a consequence, the county Is comprehensive plan is consistent with the collective goals of these entities. Correspondence contained in this packet suggests that the following governmental agencies would be involved in reviewing a request for extension to the island: Florida Department of Environmental Protection Florida Department of Community Affairs Page 2 File # 98044 U.S. Fish & Wildlife Service Florida Game & Freshwater Fish Commission U.S. Coast Guard U.S. Army Corps of Engineers Federal Emergency Management Agency Monroe County Environmental Resources & Planning Departments A determination that the expansion is consistent with the comprehensive plan would be a good indication of whether these other agencies support the idea too. Understandably then, the petitioners sought the endorsement of the Planning Department before applying for the numerous permits they would need to obtain from these other agencies. Unfortunately, the Planning Department has determined that the comprehensive plan does not support the expansion of electricity to the island. The discussion that follows illustrates how the idea of extending electricity to No Name Key is inconsistent with the overall intent of the plan as well as with its goals, objectives and policies. Technical Document The intent of the county's comprehensive plan can be found within its accompanying Technical Document. There, the bases for the regulations in the Policy Document are provided. The following excerpts are taken directly from the Technical Document of the comprehensive plan and indicate the intent of those policies cited in the letter of understanding: Effects of Future Land Use on Natural Resources The Goals, Objectives and Policies of the Comprehensive Plan and the accompanying Land Development Regulations will alter both the rate and distribution of growth so as to ensure that future patterns of land use in Monroe County reflect three critical land use determinants. These include: (a) improve development efficiency, by guiding development to existing growth areas where infrastructure systems are in place and where unit costs for public services and facilities are relatively low; (b) improve community character, by reinforcing the low -density, informal residential lifestyle of the Keys and encouraging development which respects the intrinsic value of the Keys' natural and social history; and (c) protect resources, by guiding development away from wetlands, hammocks, and other natural and scenic resources, which historically have been sacrificed to speculative real estate pressures. (Technical Document pg. 2-87) Public Facilities Public facilities, including office and service buildings, uses and facilities owned or operated by a governmental agency, utility company or service provider, are currently permitted within most land use districts in Monroe County. In order to facilitate provision of future public facility expansion needs, public facilities will not be subject to the provisions of the Permit Allocation System. Page 3 File # 98044 The following policies will be implemented to ensure that new public facilities are developed to protect natural resources and enhance community character consistent with the Future Land Use Concept: (a) New Land Development Regulations will be adopted which require consideration of feasible design and siting alternatives and analysis of environmental impacts for proposed public facilities. (b) New county buildings will be located within the Compact Community Center overlay category shown on the Future Land Use Map where feasible and compatible with adjacent land uses. (c) No county expenditures for new or expanded public facilities will be made in areas designated as units of the Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection. (Technical Document pg. 2-111) Policy Document The following list of goals, objectives and policies discourage the expansion of electricity to No Name Key. This is the same set of regulations are contained in their entirety in the letter of understanding. Discourage public and private investment and limit I Objective 102.8, Policy 102.8.1, Policy 102.8.5 development expectations in the Coastal Barrier Goal 209, Policy 209.3 Resource System. Goal 101, Objective 10 1. 11 Discourage development that would adversely impact Goal 102, Objective 102.9, Policy 102.9.3 environmentally sensitive lands. Goal 215, Objective 215.2, Policy 215.2.1 Objective 1301.7, Policy 1301.7.12 Discourage development that would adversely impact Goal 103, Objective 103.1, Policy 103.1.1, Policy 103.1.10 the endangered Key Deer, I Goal 207, Objective 207.7, Policy 207.7.1 FINDINGS OF FACT: 1. Property owners on No Name Key requested, pursuant to Section 9.5-43, Monroe County Code, that Planning Department consider the issues that would need to be addressed should they apply for permits that would extend electrical power to their homes located on No Name Key. Page 4 File # 98044 2. The Planning Department considered the idea based on .the overall goals of the Monroe County Year 2010 Comprehensive Plan and prepared a letter of understanding, dated May 13, 1998, stating that the Planning Department must discourage expansion of electricity on the island. 3. The letter of understanding cites the following goals, objectives and policies that discourage extension of electricity to No Name Key: Objective 102.8, Policy 102.8.1, Policy 102.8.5, Goal 209, Policy 209.3 Goal 101, Objective 101.11, Goal 102. Objective 102.9, Policy 102.9.3, Goal 215, Objective 215.2, Policy 215.2.1, Objective 1301.7, Policy 1301.7.12 Goal 103, Objective 103.1, Policy 103.1.1, Policy 103.1.10, Goal 207, Objective 207.7, Policy 207.7.1. 4. Property owners then appealed this interpretation of the plan made by way of the letter of understanding. 5. Also, in their application for an appeal, the property owners argue that the past actions the County and private service providers to issue building permits for homes, issue certificates of occupancy for homes, pave and maintain roads, collect garbage and provide telephone service, obligates the County to allow electricity today. 6. The Planning Department contends that encouraging the extension of electricity would be yet an additional county action that could increase the development expectations of property owners of vacant lots on the island, which is inconsistent with the comprehensive plan. CONCLUSION: The Planning Department accurately interpreted the overall goals of the Monroe County Year 2010 Comprehensive Plan in its letter of understanding of May 13, 1998, when it stated that extension of electrical service to No Name Key must be discouraged. RECOMMENDATION: The Planning Department continues to discourage the expansion of electrical service to No Name Key and thus recommends denial of the subject appeal. Page 5 File # 98044 SCNNK — History of Coma Electricity — Packet for New Comr iers—11/2008 December 1,1998 and February 3,1999 Annotated Exhibit List Entered by the No Name Key Property owners Against Commercial Power and Monroe County Planning Department's Exhibit Loy Administrative Appeal to the Planning Commission I' PA Taxpayers for the Electrification of No Name Key, Inc. These two documents are included here to make available a partial list of the numerous documents on file with the Monroe County Planning Department regarding the issue of the extension of commercially supplied electricity as a new f—aftfitmcftcre to the island of No Name Key. And, to demonstrate the comprehensive level of review that took place at the two quasi-judicial hearings before the Monroe County Planning Commission on 12/01/1998 and 02/O3/1999• A complete record of this Administrative Appeal is on file with the Monroe County Planning Department. Administrative Appeal by Taxpayers for Electrification of No Name Key Monroe County Planning Commission (12-1-98 and 2-3-99) No Name Key Property Owners Against Commercial Power was granted the legal status of a standing this matter by the Planning Commission. Their designated representative was Ms. Alicia Putney. The attorney of record for Ms. Putney is Mr. Richard Grosso. lloWl y ucdUln up To Haministrative Appeal (1992-1998) -Perspective of . omeowners Against Commercial Power -Appendix: Table 1: Existing Dwelling Units on No Name Key Table 2: inventory of Existing Development on No Name Key Table 3: No Name Key Development by Location and Year Dwelling Unit Built Table 4: Corrected List of Applicants in Appeal (Pro -Commercial Power) Table 5: Corrected List of Applicants by Location & Year Dwelling Unit Built or Bought & Homestead Exemption Status Table 6: Homeowners in Opposition to Commercial Power **`Note: Craig, Keske & Rega were removed from list at the hearing on _ 12-1-98 by A. Putney Table 7: Homeowners in Opposition to Commercial Power by Location & Year Dwelling Unit Built or Bought & Homestead Exemption Status 2.) Exhibit B: Comaosite Exhibit ' 16 pages' Letters in O�ipositinn to Commercial Power 3 Exhibit CUOMPosite Exhibit-: 52 fig .Xerox Cony of No Name K v Tax Foils 4.) Exhibit D: ComDosite Fxhihit • a nnnco ,n��,�,,.. ,. n - Uverview of the Coastal Barrier Resources System and INo Name Key ,V -U.S. Fish and Wildlife Service 10-30-98 E-mail from Mr. Steven Glomb verifying the 10 °10-92 CBRSUnits FL-47, FI-48P, FL-50P Map is current -10-15-92 (U.S. Fish & Wildlife) Map of CBRSUnits FL-47, FI-48P, FL-50P -3-3-97 No Name Key National Flood Insurance Program FIRM Map # 12087C1529 -5-9-96 Ms. Dianne Bair, Monroe County FEMA Coordinator, letter confirming where CBRS Unit Designation FL-50P is located on No Name Key by subdivision 5.) Exhilziit E Comaosite Exhibit - 8 naa s M C L A ' Acc iisition Histor�on No Name Kev 6.) Exhibit F: 8' x 11' Color Phntnrsraph 32" x 36" No N ma K v Ownershi 7:) �` to f the Entir PI r} D r m nt Fil n 11 h fill may Elei,-triciW_=_L& n 1 - etter to A. Putney from Mr. Barry Stieglitz (USFWS) clarifying Service's position on Electricity to No Name Key as stated by James J. Slack in 12-1-98 letter to F. Greenman. Monroe County Planning Commission (12-1-98 and 2-3-99) The Applicant's attorney of record is Mr. Frank Greenman. Exhibit•' • F, Gree.nman•m J.-S-lack. U.S.- P_WartMent of • page. 5.) 03i11%00 14:21 FAX 28''-36 PLANNING DEM'. Q01 To:. Location: Fax #: From:. # of Re MONROE COUNTY PLANNING DEPARTMENT 2798 OverMS Highway, Svite 410 Marathon, A 33050-2227 Photo (3031289-25M FM (3051289-2534 8-t E 03/21/00 14:21 FAX 288"^36 PLANNING Myr. Q 02 _S �L ,. a of�e _, ( 6 , fik�fh / ) >EsXMBIT LIST PLANNI1nir� IsSI N LOCATION Au� ?� DATE CASE FILE _ _ _ _ _ _ _ _ _ _ PUBLIC EXHIBIT # PAGES _ DESCRIPTION: J r�U/10,11 f' PUBLIC EXHIBIT # PAGES f{p DESCRIPTION: �.. PUBLIC EXHIBIT # PAGES .� DESCRIPTION: wo Na wc-- KQ / -T R'//s PUBLIC EXHIBIT # D DESCRIPTION: f� PACES z u lit � PUBLIC EXHIBIT # PAGES DESCRIPTION: vim Yee, PUBLIC EXHIBIT PAGES DESCRIPTION: e 4" Imp - PUBLIC PUBLIC EXHIBIT # DESCRIPTION: JPCEXHIB.IT/TXTMORO PAGES : us:zi/uu 142692536 ---- KCANT -WIT LIST Q03 LOCATION QV L.AA� rt .-- CASE FILE 1�j%l /}t`j �I?� i DATE i ;..."— APPLICANT!APPELLANT EXHIBIT # � PAGES DESCRIPTION: at APPLICANT/APPELLANT EXHIBIT nrQ A TDTTnW. 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PAGES DESCRIPTION: APPLICANWAPPELLANT EXHIBIT # PAGES DESCRIPTION: APPLICANT/APPELLANT EXHIBIT # PAGES DESCRIPTION: APPLICANT'/APPELLANT EXHIBIT # PAGES DESCRIPTION APPLICANT/APPELLANT EXHIBIT # PAGES DESCRIPTION: IPCEXHIB.IT/TXTMORO 03i21/00 I4:21 FAA 2892;36 Pl-lN..NINC 1?E!''1 Q05 D �'4i6 LIST — PLANNIM COMMISSION LOCATION L DATE3�I CASE FILE --------------------------------- PUBLIC EXHIBIT PEES o DESCRIPTION: / PUBLIC EM IBIT # PAGES• _QESERTPT-T0N: �F'/l�Pi'�. 'f� PldkAjgj�C-4"IQr0^— �4aow PUBLIC EXbiIBIT # PAGES DESCRIPTION: PUBLIC EXHIBIT DESCRIPTION: PUBLIC EXHIBIT ,�_ PAGES . DESCRIPTION: PUBLIC EXHIBIT # PAGES DESCRIPTION: PUBLIC EXHIBIT �_ PAGES DESCRIPTION: IPCEXHIB.:ET/TXTMORO SCNNK — History of Commerc Electricity — Packet for New Commis ers—11/2008 December 1,1998 and February 3,1999 "Composite Exhibit D" Entered by the No Name Key Property Owners Against Commercial Power in the Administrative Appeal to the Planning Commission by Taxpayers for the Electrification of No Name Key, Inc. Stating that construction loans, mortgages and flood insurance can be obtained for new development within a federally designated CBRS unit Urovided„federal dollars are not involved. Which includes a list of many, but not all, of the Monroe County Year 2010 Plan's goals, objectives and policies that pertain to lands within Monroe County which are federally designated as Coastal Barrier Resources System units. And, should put an end to the often -repeated false statement that a member(s) of the neighborhood organization, No Name Key Property Owners Against Commercial Power, now known as the Solar Community of No Name Key, misrepresented the federal regulations regarding the Coastal Barrier Resources System to Monroe County or any other party. Ile '.7 71-a Of 7d/iy Coastal Barrier Resources systems {. Background: The Coastal Barrier Resource Act was passed by Congress in 1982 establishing Coastal Barrier Resources Systems (which included only undeveloped coastal barriers along the Atlantic and Gulf of Mexico coasts). The scope of the CBRS was expanded to include undeveloped barriers of all coastlines of the United States when Congress passed the Coastal Barrier Improvement Act (CBIA) in 1990. The CBRS/CBIA law embodies three major goals: (1) to minimize loss of human life by discouraging development in high hazard areas: (2) to reduce wasteful expenditure of Federal revenues: and (3) to protect fish, wildlife, and other natural resources associated with coastal barriers. !!. CBRS and Monroe County: According to Monroe County FEMA coordinator, Dianne Bair, it a Monroe County building permit was issued before a given property was designated as a CBRS unit, FEMA flood insurance would be available to the homeowner. Moreover, existing policies would not be canceled until a flood insurance claim was made to FEMA. (In short ---one rebuild ---and then the policy would be canceled.) l `f90 Any permit issued after the November 199 ale would not be eligible for FEMA flood insurance. Flood insurance is required if a mortgage from any bank or loan institution that is FDiC federally insured is involved. Further, a construction loan from a federally insured loan institution would not be approved if the collateral for the loan was the property in question. However. alternative do exists ---although more costly, private flood insurance policies have historically been available in the Keys, and a construction loan could be approved if it were secured by assets other than the property involved. in short, the basic ramification of the CBRS designation is the financial constraints it places on the owner builder or developer. Monroe County has continued issuing permits in CBRS---and rightly so. There is nothing in the underlying legislation that states the County should not issue building permits in CBRS units. However, the recently adopted Monroe County Year 2010 Comprehensive Plan address the issue of CBRS at the County level. The 2010 Plan States that Monroe County is to "take actions to discourage private development in CBRS units:" -i- Ill. CBRS Policies Within the Monroe County Year 2010 Comprehensive Plan, Policy Document* Objectives and Policies related to Federally Designated Coastal Barrier Resources Systems Units (CBRS) Objective 102.8 (CBRS) Monroe County shall take actions to discourage private development in the areas designated as units of Coastal Barrier Resources System. (9J-5.006(3)(b)4) Policy. 102.8.1 (CBRS) Monroe County shall discourage developments which are proposed in units of Coastal Barrier Resources System (CBRS) by methods including but not limited to, negative points in the Permit Allocation and Point System (see Policy 101.5.4). (See Objectives 101.2, 101.3, and 101.5 and related policies) (W-5.006(3)(c)6 Policy 102.8.2 (CBRS) Upon adoption of the Comprehensive Plan, Monroe County shall not create new access via new bridges, new causeways, new paved roads or new commercial marinas to or an units of coastal Barrier Resources Systems (CBRS) (9J- 5.006(3)(c)6) POO 102.8.3 (CBRS) By October 16, 1992. shoreline hardening structures, including seawalls, bulkheads, groins, rip -rap, etc., shall not be permitted along shorelines of CBRS units. (9J- 5.006(3)(c)6) Policy 102.8.4 (CBRS) By September 30, 1993.** privately -owned undeveloped land located within the CBRS units shall be considered for acquisition by Monroe County for conservation purposes through the Monroe County Natural Heritage and Park Program. (9J- 5.006(3)(c)6) Polic102.8.5 (CBRS) Upon adoption of the Comprehensive Plan, Monroe County shall initiate efforts to discourage the extension of facilities and services provided by the Florida Keys Aqueduct Authority and private providers of electricity and telephone service to CBRS. -2- AW These efforts shah include providing each of the utility providers with: (1) a map of the areas of Monroe County which are included in the CBRS units, (2) a copy of the Executive Summary in Report to Congress: Coastal Barrier Resources System published by the U.S. Department of the Interior, Coastal Barrier Study Group, which specifies restrictions to federally subsidized development in CBRS units: (3) Monroe County policies regarding local efforts to discourage both private and public investment in CBRS units: and (4) Monroe County regulations regarding development in CBRS units, including the Permit Allocation System regulations, which commits negative points for development in CBRS units (See Policy 101.5.4)(W-5.006(3)(c)6) *Note: As adopted by the Board of County Commissioners on April 15, 1993, Date the Plan took effect, January 4, 1996, "Nate: "all dates from July 1. 1993 to December 31, 1993 shall be interpreted to mean "within one year after the effective date of the plan"." (Policy Document 2.0-2) -3- SCNNK — History of Comma. ' Electricity — Packet for New Coma ners — 11/2008 June 22,1999 Letter from Monroe County Planning Department to Mr. Franklin Greenman Planning Commission Resolution P17-1999 Denying the application of the Taxpayers for the Electrification of No Name Key, Inc. for an appeal of Growth Management Division's denial of a request to allow electricity to be supplied to No Name Key. PEA S.E READ the CONCLUSIONS -OF LAW, page 6. which include: • "Monroe Countu has consistently held, be tq'nning prior to the adoption of the 1986 Comprehensive Plan and increasingly so with the adoption of the Year 2010 Plan, that future growth and the expectation to develop must be directed away,from No Name Key." `All of the reasons the appellants gave regarding potential negative environmental impacts and potential health and safety concerns are a direct result of the a12pellants' choice for generated power rather than solar power." • "All of the appellants moved to No Name _Keu with the knowledge commercial electricity was not available. Appellants could move anywhere else in the Florida Keys to have commercial power, whereas those who have successfully and knowingly adapted to the lifestyle on No Name Key have no such choice." • The communitu character of the island is unique and this is in part due to the lack commercial power and mould be nurtured granting the provision ofommercial power would degrade the unique character of No Name Key and those who chose to move to the island stand to loose a unique and worthwhile lifestyle." • There is no constitutional right to electricity. CUNTY jo'MONROE KEY WESTRIDA 33040 Planning Department Suite 410 2798 Overseas Marathon, FL 305-289-2500 June 22, 1999 Highway 33050-2227 Frank Greenman, Esquire Gulfside Village, Suite 40 5800 Overseas Highway Marathon, FL 33050 BOARD OF COUNTY COMMISSIONER! MAYOR Wilheimina Harvey, District 1 Mayor Pro Tern Shirley Freeman, District 3 George Neugent. District 2 Nora Williams, District 4 Mary Kay Reich, District 5 RE: Administrative Appeal of No Name Key Taxpayers for Electricity Dear Mr. Greenman: Enclosed is a copy of Resolution P17-99 from the Planning Commission Hearing of February 3, 1999, at which time the Commission denied the application of "Taxpayers for Electricity" for an appeal of Growth Management Division's denial of a request to allow electricity to be supplied to property described herein. This Resolution was signed by the Chair on June 16, 1999. Pursuant to Section 286.0105, Florida Statutes and Monroe County Board of County Commissioners' Resolution ##131-1992 appellants must provide a verbatim transcript of the hearing hofore the planning wituin 30 days (approximately July 19, 1999, in this case) of the written decision of the Planning Commission. The verbatim transcript of the hearing shall be prepared by a court reporter at the appellant's expense and will be filed as a part of the record on appeal. A transcript made from recordings or other secondary means, does not provide a sufficiently accurate record of all the speakers. Therefore, such "secondary" transcripts may not be accepted as a valid verbatim transcript. ANONAME.07/TXTDR/98044 Appeals of Planning Commission decisions, timely filed, will go before a hearing officer in the manner provided by Monroe County Code, Section 9.5-535. Should you have any questions concerning this matter, please do not hesitate to call me at 289-2522. Sincep4ly, h Chambers ing Commission Coordinator CERTIFIED MAIL Enclosure copy: Alicia Putney ANONAME.07/TXTDR/98044 RESOLUTION NO. P17-99 A RESOLUTION BY THE MONROE COUNTY PLANNING COMMISSION DENYING THE ADMINISTRATIVE APPEAL BY THE TAXPAYERS FOR THE ELECTRIFICATION OF NO NAME KEY, INC., THEREBY UPHOLDING THE POSITION OF THE COUNTY AS STATED BY THE DIRECTOR OF THE PLANNING IN A LETTER OF UNDERSTANDING, DATED MAY 13, 1998, WHICH STATES THAT THE PLACEMENT OF ELECTRICAL POWER LINES TO NO NAME KEY WOULD BE INCONSISTENT WITH CHAPTERS 163 AND 380 OF FLORIDA STATUES, AS WELL AS WITH THE MONROE COUNTY YEAR 2010 COMPREHENSIVE PLAN. WHEREAS, Section 9.5-43, Monroe County Code (MCC), states an applicant for development approval may request a pre -application conference with the development review coordinator to acquaint the participants with the requirements of these [Monroe County Code) regulations and the views and concerns of the county; and WHEREAS, on January 20, 1998, some owners of property on No Name Key, known as "Taxpayers for Electricity", requested a pre -application conference in order to, according to the application, discuss a development proposal for "the installation of electrical service transmission lines from Big Pine Key to No Name Key to provide electrical service to the already permitted and built single family homes on No Name Key"; and WHEREAS, on March 25, 1998, a pre -application conference was held with the Monroe County planning department's development review coordinator, the attorney for the applicant, the court reporter for the applicant, and several No Name Key homeowners and property owners; and WHEREAS, Section 9.5-43, MCC, states that after a pre -application conference, the applicant receives a "letter of understanding" signed by the director of planning that sets forth the issues raised at the conference and states the county's position in regard to those issues; and WHEREAS, Timothy J. McGarry, AICP, Director of Planning for Monroe County, signed such a letter on May 13, 1998, concluding that the proposed development is inconsistent with both Chapters 163 and 380 of the Florida Statutes and with the Monroe County Year 2010 Comprehensive Plan and should therefore, be discouraged; and WHEREAS, Section 9.5-521, MCC, allows affected property owners to appeal any order, decision, determination or interpretation by any administrative official within 30 days of such action; and WHEREAS, on June the of understanding from th tag Departmentreceived Taxpayers ior Electricity, the Planning ayment f r an administrative appeal of letterer referred to as the appellants hereafter; and WHEREAS, a public hearing before the Planning Commission was noticed for December 1, 1998; and WHEREAS, on November 16, 1998, the Planning Department received the rest of the application for the appeal containing the written basis for the appeal; and WHEREAS, the Planning Department analyzed the requested appeal and prepared a staff report and packet to the Planning Commission dated November 23, 1998, recommending that the appeal be denied; and WHEREAS, the Planning Commission conducted public hearings on December 1, 1998 and on February 3, 1999; and WHEREAS, the appellants provided testimony and evidence along with arguments made by their attorney, Mr. Frank Greenman, Esq.; and WHEREAS, No Name Key Property Owners Against Commercial Power (represented by Ms. Alicia Putney and her attorney, Mr. Richard Grosso, Esq. in absentia) were granted legal standing on the basis that these residents are third party beneficiaries of the decision under appeal; and WHEREAS, No Name Key Property Owners Against Commercial Power provided testimony and evidence along with arguments made by Ms. Alicia Putney and her attorney, Mr. Richard Grosso, Esq. in absentia. WHEREAS, Ms. Debra Harrison of World Wildlife Fund, was tendered as a planner and an expert witness on Florida Keys land use, the Rate of Growth Ordinance (ROGO) and the Monroe County Year 2010 Comprehensive Plan and provided testimony in support of No Name Key Property Owners Against Commercial Power; and WHEREAS, the Planning Department staff presented evidence and provided expert testimony; and WHEREAS, the Planning Commission, after carefully considering all of the evidence and testimony submitted by the appellants, the Planning Department staff, No Name Key Property Owners Against Commercial Power, Ms. Debra Harrison and members of the public at the public hearings, as well as the advice of their attorney, Mr. Garth Coller, Esq., hereby makes the following FINDINGS OF FACT: 1.) Based on the testimony of the Planning Department staff, the issue of the public hearing was whether the May 13, 1998, letter of understanding accurately concluded that, based on the requirements of Chapters 163 and 380, Florida Statutes, and based on the Monroe County Year 2010 Plan, the placement of electrical power lines on No Name Key should be discouraged. 2.) As a matter of law, it is the appellant's burden to provide evidence and testimony that the conclusion reached in the letter of understanding is inaccurate and that instead, the 2010 Plan does not discourage the provision of infrastructure on No Name Key and in particular, the provision of commercial electrical power. Page 2 of 8 3.) Pursuant to Section 163.3194, Florida Statutes, development approved by a local government is considered consistentevelohits ment is compatible ewth and furthers lan when the development and the timing of thep the goals, objectives and policies of the comprehensive plan. inal 4.) As a matter of law, the PlanningoDeartment he overall goafs,eobjectivesred the ria d poec els of the opent proposal and the appeal based t Monroe County Year 2010 Comprehensive Plan. Also, as a matter of law, when reviewing consistency with the comprehensive plan, the goals, objectives and policies must be considered as a 5.) Based on the testimony presented by the Planning Department staff and by Ms. Debra Harrison, the 2010 Plan, on the whole, seeks to limit increasing development expectations of vacant property owners throughout the County, in part because developments already allowed by Monroe County have exceeded the carrying capacity for nearshore water quality of the Keys, as reflected in part by the Administrative Hearing Officers Final Recommended Order. 6.) Based on the testimony of the Planning Department staff, Ms. Debra Harrison and No Name Key Property Owners Against Commercial Power the 2010 Plan contains additional measures in its goals, objectives and policies to specifically ensure that development and the expectation of development is directed away from critical areas within the Monroe County. No Name Key, where the carrying capacity of the Key Deer has also been exceeded, as reflected in part by the Administrative Hearing Officer's Final Order, is one of those specific areas according to theesa nevidence presentedby the Planning Department staff, Ms. DebraHson and NoName Key Poperty Owners Against Commercial Power. 7.) The measures contained in the Plan that ensure that development and that the expectation of development is directed away from No Name Key fall in three areas as cited by the Planning Department's staff report: 1. Discourage public amer Resourcesivate investment System and Objective v102 8,ent Polliicy 102.8 1, ectations m the Coastal Policy 102.8.5, Goal 209; and 2. Discourage development that would adversely impact environmentally sensitive lands: Policy 209.3, Goal 101, Objective 101.1, Goal 102, Objective 102.9, Policy 102.9.3, Goal 215, Objective 215.2, Policy 215.2.1, Objective- 1301.7, Policy 1301.7.12; and ould 3. Discourage develop�ectiive 103 1, Pol cat VVJv103 1 1� Poi cacty 103 1be 10, Goal 20red 7, Deer: Goal 103, Obi Y Objective 207.7, Policy 207.7.1. 8.) According to the expert testimony of Ms. Debra Harrison, infrastructure availability is often the basis for offering to a landowner the expectations that he may develop. Based on the testimony of Ms. Debra Harrison, limiting infrastructure is a widely utilized mechanism �ormanagi�� hh��abasis for the concurrency management quenof CaPtelfi3Florida Statutes 9.) According to the testimony of the No Name Key Property Owners Against Commercial Power, limiting infrastructure is a widely used Growth Management tool utilized by all local governments in Florida and by all levels of government. in addition, they testified that it is precisely this tool that is the basis of the prohibition on development under the jurisdiction of the Coastal Barrier Resources Act. Page 3 of 8 10.) Policy 1301.7.12 of the 2010 Plan specifically requires that Monroe County assess measures, which could be taken to discourage or prohibit extension of facilities to areas within the Coastal Barrier Resource System (CBRS). In addition, Policy 102.8.5 of the comprehensive plan requires that Monroe County initiate efforts to discourage the extension of facilities and services provided by private providers of electricity to CBRS units. 11.) According to the Planning Department staff and as also evidenced in Department of Interior and FEMA maps submitted by No Name Key Property Owners Against Commercial Power, most of No Name Key, including areas to which appellants desire commercial electricity, is within Coastal Barrier Resources System (CBRS) FL-50 and therefore, has been under the jurisdiction of the Coastal Barrier Resources Act (CBRA) and the Coastal Barrier Improvement Act (CBIA) since October 24, 1990. 12.) While the appellants argued that the Coastal Barrier Resources Act does not apply to them, they did not provide any evidence of this. 13.) While the appellants argue that Chapter 366, Florida Statutes, contains language that requires Monroe County to allow for the provision of electricity, we find that the language is specific only to the providers of electricity and not to Monroe County. In addition, the language places no burden on local governments nor does it negate the requirements of the County's comprehensive plan. 14.) The appellants argued that the Monroe County Building Code's requirement to wire their homes with 110 VAC (volts alternating current) and the installation of a weather head suggests that commercial electricity is going to be provided. 15.) Instead, we agree with the position espoused by the No Name Key Property Owners Against Commercial Power and the Planning Department staff that Monroe County's Electrical Codes are standard electric codes based on the need for fire prevention and that they are necessary even for solar powered homes which require 110 VAC wiring to run 110 VAC appliances such as full sized refrigerators, washers and dryers, televisions, computers and power tools that are used successfully in many of No Name Key's solar powered homes. 16.) Merely requiring all homes to provide for electrical service does not obligate the County to approve the extension of commercial electricity to No Name Key. As a matter of law, prior actions and services provided by Monroe County or any other agency do not obligate Monroe County to provide electricity. In addition, information provided in the packet demonstrates that the Planning Department has consistently indicated that provision of commercial electricity would violate the 2010 Plan. 17.) The appellants argued that the County's Permit Allocation System for residential development, or the Rate of Growth Ordinance (ROGO), in combination with the duties of the Florida Department of Environmental Protection, National Marine Sanctuary, Florida Game and Freshwater Fish Commission, Florida Department of Community Affairs, United States Fish and Wildlife Service, United States Army Corps of Engineers, prohibited any future development on No Name Key. The appellants indicated that the planning director's testimony supports this argument. Page 4 of 8 18.) Instead, however, we find that the Permit Allocations System for residential development, or the ROGO, was specifically crafted to ensure that development was not prohibited and that opportunities for successful competition were made available to all property owners. In addition, the appellants provided no evidence of such governmental regulation by any of the aforementioned agencies prohibiting development on No Name Key. 19.) The appellants argue that the lack of commercial power on No Name Key diminished the value of the appellant's homes. Additionally, the appellants testified there is no market for solar homes. However, at the time that all appellants moved to No Name Key, the island had no commercial power. In addition, according to Exhibit A, tendered by No Name Key Property Owners Against Commercial Power, a majority of the appellants either moved to or built their homes on No Name Key within the last four years. 20.) We find that the testimony regarding cost, health risk or potential environmental degradation do not address or negate the 2010 Plan's current requirements nor provides evidence that the conclusion reached in the letter of understanding was inaccurate. 21.) We concur with No Name Key Property Owners Against Commercial Power's arguments that sustainable developments that utilize alternative energy sources are a more appropriate form of development which aligns particularly well with the Refuge setting, the unique character of No Name Key and the goals, objectives and policies of the County's Year 2010 Land Use Plan and should be encouraged by local governments. In addition, such developments fit in with Chapter 380, Florida Statutes, which recognizes the need to move away from reliance on non- renewable resources and that solar powered homes with cisterns should be encouraged, not diminished. 22.) No Name Key Property Owners Against Commercial Power and members of the public testified that they moved to the island for the alternative lifestyle it offers and that commercial power would adversely affect that lifestyle which can only be found on No Name Key. They also argued that they had the most to lose in the decision because of this, adding that many of them would not have bought or built homes on No Name Key if commercially supplied power had existed on the island. 23.) No Name Key Property Owners Against Commercial Power testified that they enjoy living a life of conservation in solar powered homes and had built and purchased their homes on the island to practice it, that the shared life style had encouraged a close knit community and a sense of place. 24.) Planning Department staff, No Name Key Property Owners Against Commercial Power and members of the public testified that the existing development patterns, along with the minimal infrastructure, which lack both commercially supplied electrical power and aqueduct supplied water, along with the rural setting and public ownership of the lands in the National Key Deer Refuge makes the character of No Name Key unique not only from a local perspective, but from a national perspective, making the island a national treasure as well. Page 5 of 8 25.) We find that as a matter of law, it is within the police power of Monroe County to pass rules and regulations to protect areas with unique character and circumstances. . 26.) As indicated by the 2010 Plan and based on the testimony of residents from the island, No Name Key is a unique island in that it lies within a National Key Deer Refuge. Large expanses of undisturbed native lands contain sensitive habitats that are critical to many endangered plant and animal species, including the Key Deer and provide a rural setting for the homes on the island. WHEREAS, the Planning Commission hereby makes the following CONCLUSIONS OF LAW: 1. The appellants have failed to meet their burden of proof by showing that the Planning Department reached the wrong conclusion in their letter of understanding. 2. The appellants have failed to meet their burden of proof by providing competent and substantial evidence that contradicted the May 13, 1998, letter of understanding or the conclusion reached therein. Appellants' testimony regarding cost, potential health risks and potential environmental degradation was insufficient or irrelevant given that it is the duty of this Board to make decisions based on the applicable laws and regulations of the Monroe County Year 2010 Comprehensive Plan and the Land Development Regulations. 3. Monroe County has consistently held, beginning prior to the adoption of the 1986 Comprehensive Land Use Plan and increasingly so with the adoption of the 2010 Plan, that future growth and the expectation to develop must be directed away from No Name Key. 4. Infrastructure availability will increase the development expectations of the owners of vacant land. The comprehensive plan specifically directs Monroe County to assess measures that can be taken to discourage or prohibit extension of facilities to No Name Key. Therefore, supporting such an action through the approval of this appeal would be a County action that is inconsistent with the 2010 Plan. 5. Planning Department staff, No Name Key Property Owners Against Commercial Power, Ms. Debra Harrison, the appellants and members of the public provided compelling testimony and evidence indicating that the extension of commercial electricity to No Name Key would be yet an additional County action that would increase the development expectations of property owners of vacant lots on an island where the County is mandated by the comprehensive plan to decrease them. 6. The Planning Department accurately interpreted the overall goals of the Monroe County Year 2010 Comprehensive Plan in its letter of understanding of May 13, 1998, when it concluded that extension of electrical transmission lines to No Name Key must be discouraged. The letter of understanding is an accurate interpretation of the Monroe County Year 2010 Comprehensive Plan. There was no compelling evidence presented by the appellant to contradict that interpretation. Increasing the development expectations of vacant lot owners on No Name Key would be inconsistent with the overall objectives of the comprehensive plan. 7. Testimony regarding the benefits of solar powered homes over generator powered Page 6 of 8 home as an alternative energy source was compelling, but not relevant. All the reasons appellants gave regarding potential negative environmental impacts and potential health and safety concerns resulting from Monroe County not allowing commercial power to No Name Key are a direct result of the appellants' choice to use generated power rather than solar power. In addition, the testimony provided at the hearing suggests that lifestyles that rely on alternative energy sources such as renewable resources, should be encouraged. There is no risk to public health and safety by limiting the extension of commercial power, given that other viable alternatives exist. 8. It is not the direct impacts of commercially supplied power versus the direct impacts of power supplied by fossil fuel generators on the Key Deer that are at issue, but rather the secondary impacts associated with risk of increased development expectations and the resulting vehicular trips and loss of habitat due to increased development. 9. All of appellants moved to No Name Key with the knowledge that commercially provided electricity was not available. These property owners have the ability to move anywhere else in the Florida Keys in order to have such a service provided to them. In contrast, other No Name Key property owners moved to the island expressly because of the lifestyle that is offered to them there, including the fact that infrastructure is minimal and commercial electricity is absent. The community character of the island is unique, in part, due to the lack of commercial power and is a special enclave in the Florida Keys that provides a unique quality of life that must be nurtured, protected and prolonged. 10. The testimony provided at the hearing regarding the need to protect such community character, was compelling in that granting the provision of commercial power would degrade the unique character of No Name Key and those who chose to move to the island stand to lose a unique and worthwhile lifestyle. Appellants could move anywhere else in the Florida Keys to have commercial power, whereas, those property owners who have successfully and knowingly adapted to the lifestyle on No Name Key have no such choice. No Name Key is a unique island in the Florida Keys and in the United States both because of its significant natural resources and its unique character. 11. There is no constitutional right to electricity. There is a valid police power basis to treat No Name Key differently than other areas in the Florida Keys due to the unique conditions of the island with the presence of sensitive habitats critical to a variety of endangered plant and animal species, including the Key Deer, the expansive undeveloped areas as part of a National Key Deer Refuge, and the rural character of the developed portions of the island that relies on renewable alternative energy sources. It is the right of the legislature to provide different areas, which allow for different lifestyles treated differently. Page 7 of 8 12. While we find that there are valid reasons for requiring that all houses must meet the standard electrical code, it may have been an oversight that No Name Key was not exempted from the electrical code's specific requirement of a roof -top weather head. This oversight in no way provides sufficient equitable or legal basis for overriding the mandates of the Plan and the Land Development Regulations. NOW THEREFORE, BE IT RESOLVED BY THE PLANNING COMMISSION OF MONROE COUNTY, FLORIDA that the preceding findings of Fact and Conclusions of Law support its decision to DENY the administrative appeal by the Taxpayers for the Electrification of No Name Key, Inc. PASSED AND ADOPTED by the Planning Commission of Monroe County, Florida, at a regular meeting of said Board held on the 3rd day of February, A.D. 1999. Chair Gorsuch Yes Vice -Chair Mapes Yes C.ommissioner Aultman No - Commissioner Hill No Commissioner Stuart Yes Resolution passed by the Planning Commission of Monroe County, Florida, at a regular meeting of said Board held on the 3rd day of February, A.D. 1999. By: _9A .. Billy G rsuch, Chair Signed this 14,�day of mac& 6 , 1999 Page 8 of 8 SCNNK — History of Commerc al'Electricity - Packet for New Commissioners — 11/2008 July 2,1999 - Complaint Filed loth Judicial Circuit Monroe County, Florida Case No. 99-819-CA-18 Plaintiffs, Taxpayers for the Electrification of No Name Key Defendants, Monroe County and City Electric Service • Planning Commission Resolution No. 17-1999 was 'signed on June 16, 1999• The decision of the Planning Commission to deny the applicant's Administrative Appeal was not appealed to the Florida Department of Administrative Hearings (DOAH). Instead, a lawsuit was filed against Monroe County and City Electric Service Of Key West. • While the complaint lists thirty-five"(35) plaintiffs; twelve (12) No Name Key residential dwelling units are represented in the lawsuit against Monroe County. Six (6) of these homes have since been sold. More specifically: Real Estate No.# 1999 Owner Built/Bought�LYear 20o8 Owner 1. lo8120-000100 Druckman Bought 1994 Druckman 2. io8120-000300 Eaken Built 1988 Eaken 3. 1o8120-000500 Juhasz/Kamm Built -Reissue 1997 Kamm 4. 108120-000600 Morrison Bought 1996 5. 1o8120-001200 Nichols/Wallis Bought 1995 6. 108130-001900 Damon Built 1993 7. 108130-002000 Brown Built 1991 Brown 8. 1o8130-002500 Morris Built 1992 Morris 9. 1o8130-003100 Miller Built 1994 10.319491-000800 Pichel Bought 1986 Pichel H. 319492-002500 Rega Built -Reissue 1997 12.1o8480-000000 Sizcek Bought 1994 08/31,190 16: 17 FAX IN THE CIRCUIT COGRT OFTHE 16TI-I JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA TAxPAYF,Rs FOR THE ELECTRIFICATION OF NO NAME KEY, INC., a Florida Corporation, and; BA"ARA and EARNEST I)ANIONT, ""ALNqD LWEN, DARYL MILLER, FRANCISCO pICHFL, BEpNARD and ALDONA SICZEIC, JAMES D- EVANS, ROBERT and RUTH LAla-N— JOSEPH and DINA jUjjASZ, ROGER and RUTH KAMM, F. and TRACEY KAMM, RICHARD MELkHMDARYL MILLER, MANUEL DRICKMAN)'DR, ROBERT and ,,CATHRYN DROWN, JOSE OLIVERA, 101-IN MORRIS, DANIEL MORRIS, JOHN and CAROLYN DEMOTT, TERRELL F mcCOMBS, HARRY and JANET WALLIS- F. ROHL, NjEAR-L POHL, TERRY and PJAA4 MOMSON, EDWARD and NINA RECA., plaintiffs, MONROE COUNTY, a Political subdivision of the State Of Florida and CITY ELECTRIC SERVICE., Defendants. COMFLA IT FOR -DECTORT' LIEFAND DAMAGES FOR VIOLATION OF CON 110NAL RX S COMES Now Plaititiff, TAXPAYERS FOR THE ELECTRIFICATION OF NO NAME KEY, INC., a Florida Corporation, by and through its undersigned counsel and 19: 17 P&I" me rg a nHeiid.ridl 1' 019 2064 331 files this . its Declaratory Relief and Damages Complaint for D I for Violation of Constitutional Rights and in support thereof would state as follows: Plaixiliff is a Plarida, aot-IfOr-Profit i'-OTOrat'on whose corporate purpose is to represent the interest of property owners on No Name Key, Monroe County, Florida -Ke i I I --Ioe Who have fegadlyconstructed single family1'residencp-s on No NaLtric I Y if Vk01 County, Florida. 2. The Defendants are all owners of lawfully constructed bomes on No Name Key, Monroe ColmtY, Florida 3. Defendant, MONROE COUNTY, is a political subdivision of the State of Florida -whose jurisdiction includes No Name Key, Mony-'cw- Cour"LY, Florida, Defendant. MONROE COUNTY, has the authority for all planning, zoning and developrneqt k-0 - I - 17 des No MrqrOe C de-cision's vAd-dn the boundaries of i Name Key. 3. Defendant, C . M ELECTRIC SYSTEK is public utility as defined in Fla. Stat. 366 who has a statutory . . I dutytoprovide electric serACe',0 its service area, wh§ service area includes No Name I(ey, Monroe County; Florida. 11 cou-N'T I DECAjI [ITSUNDER THE F—L—OPDA �4STJTUTIQN'IEN OINTHT:PRO"v"T'vvrW (T LMt�NVNIIr4. No Nan-te Key is cormected to Monroe County by a4igh,,y and bridge 2 16.:17 FAX orrrcae known as Old State Road 4A, which was b4it and is nlalrltaic.Cd k-Y ¢-1 aw \4 County. The purpose Of this roadway is to provide access to No Name Key to, An"g d activity suds as the rise rid ownership of ly pro-tecte -tutiona _J�er things, allrDw co �zu land on No Name Key. in addition to the prOVISiOn and maintenance of roads, the Defendant 11 Monroe County provides garbage collection ,services, fire and rescue services, d service transpormtion and the other normal services protection, public education an provided by a local 90vernrnerlt to its citizens 6. In addition to governn*tentat services, the Defendant Monroe County either wsor does not object to. the provision of other norinal residential s;,:'�� Nlcc alto , be expected to be provided to owners of homes within its iurisdiction, these services o ndr-e7 Prowl e - and n gas delivery� MIS uellep",C)r.- incl-ude, balt are "lot united to pos, , ew-rvilce- - , simUar services. 7 'Piaintiff s members; owners of lawfully constructed single- family homeson No Name KeY, constructed their homes in subdivisions whose Plats Were accepted. by Defendant, Monroe County. 8. Each Of these dedicated Plats on No Name KCY were Pte"'d to, accepted nd aroved by, Defendant NlOntOe County. The specific purpose behind Obtaining app defendant MOBT01-COUXItY's approval for the plats on No Name KeY was to aumonze s to individuals such as plaintiffs- Each of the tl-le sale of lots for single family residence 3 .,q �� , � �i I (I - � 17 FAX �i it specificO_' plxus pproved by Defendant Monroe County contained specific easements, or the right _-Le homes to be constrac.-Ited for the delivery 'ry of utility service: to tj to establish eaS li -pursuant to these approved Plats- d onjoe I -an" _ CoUnty T and Tb N4 The M.OMOe- C,40unty Code enacted in 1973 No Name Ke-Y for Developin 1986, both established areas in merit Reato gulins enacted I the development of single family residences by f0f Ole location enacting Zoniflig constructed their homes in a ,awfully enacted zoning of homes. The Plaintiffs have Dmes- LTir ra tif t for sing" ly 1t Each 0. or, No Name Key was requirecL by the laws 0� he , I-lornes constructed and otd ted by Defendant1140MOP- County' to construct, as a part of the .Unanccs enac r the receipt of outside electrical utilit)" single family home, electrical wirir19 systems ro Each homeowner was required to obtain a buiiding Permit from the Defendant N4onxoe County in order to construct their homes. As a condition of the -act an pd, uired by the _f,,datjt Monroe COW LLY to constr ennit, the plalp ,tiff, S Nvere req frorn an outside sourc-e� install electrical wiring for the receipt of electrical utility "er"Ces I �.A -, ectri I ' 1 2' Vs_tem'. his home If anv horneo'Arfter failed to Construct this 'SPC"';f'lc e' -Cct*' w1r1no would have failed inspection and the homeowner would have been denied- a Certificate ve ! PMe.jt�-' ,he horn eo,%rners of Occupancy frOff, IN40r',toe (-Ousty"YvL of each of the-, from living, OT otherwise using their home- During the construction 11 lawfully constructed homes on No Name Key, Defendant. Monroe County, conducted inspections of the construction as it progressed and specifically inspected the installation of electrical wiring systems to receive outside electrical utility service. Each of the constructed homes on No Name Ivey passed these electrical inspections for wiring to receive outside electricity, imposed by Defendant Monroe County, an —A received a Certificate of Occupancy from Defendant Monroe County as a result of having passed -these inspections. The additional cost for the construction of electrical wiring; to receive electricity from a public utility is approximately $ 15,000.00 for each house, this cost being imposed on the homeowner by Defendant Monroe County as a condition of approva-1. of each homeowner's home. 12. Each of the homeowners of these lawfully constructed homes took I - - -ertificate oE Occupancy by possession of these 1-tomes "after the issuance of the C I r Defendant Monroe County with the expectation that they would be able to use their homes without interference as contemplated by Art I Section 2 of the Florida constitutiom 13, The Defendant, Monroe County, has imposed land development regulations on all of the unincorporated areas of Monroe County, Florida, which includes No Name Key. These land development regulations include zoning, planning, and development controls. 14. No Name Key has been appropriately zoned and regulated by the County 5 16:18 FAX of Monroe with the same zoning classifications as are applicable to all other property in Monf_oe C0unty.Florida. . 15. There is no Provision in the Monroe County Code, the Monroe County _Iprehen, ioe _Ity Con P7 l _ COUX an, which Land DeveiopinenL RegulatiOns! or the- M'On service to the specifically provision of electrical already C<)nqructed hornes prohibits the pro I IL rnatler, IS t�ttere an exv-,ificx n 1%4o Nw�te 1< nor for that electricity to arty lawllly constructed home in Monroe County pursuant to Fla. Stat- fend=t.. Ci Eje&ric Sem is reatifted. 'Ce. T- c De §363.03 to provide "reasonably sufficient, adequate and efficient service -...No Public utility shall make or give any undue or unreasonable ),reference or advantage W any -ct the wine to any undue or unreasonable prejudice or perso-D or locality, or subje he State f ot_d&cTmjntd, by di - sadvantage in any respect.". The Legislature of Florida has -the assage of Fla- Scat. 366 and 403, that it is the public policy of t�be stateTo provide p electrical energy to assure the well being of the citizens reliable and abundant low cost of this state- Defendant QtY 7. 11-1 Otder to provide cle(.trical Service to No Name Key, -dgCSma;mtaioedb-) r Name KeY-tI*OLI0r' 'Ile �fja'�' kt.L Electilc Service must access t\10 Defendant Monroe County, For that reason, among others, City Electric must have the i duty to VrOAfide electrical ineet it-Ctat ;tcs�v r Ova I A c., fre tr i d a n t COUr-t-Y to service to No Name Key. IN U8 31;43 M18 FAX l Defendant Monroe t"o'anty resixses to flaw Defendant C ity electric �I stems the provision of electrical Servyces to the already constructed residences of No Name l(ey, Monroe County, Florida. 19. Defendant Monroe County, by its refusal to allow electricity to be provided to the lawfully constructed homes on No Name Key, has caused or participated in Defendant, City Electric Systems, breach of its statutory duty to provide electrical service. "without undue or unreasonable prejudice or disadvantage in any respect". 20. The homeowners on No Name Key: A. Have obtained or are the beneficiary of an affirmative governmental , homes on No Name Key so as to receive electric service - act allowing the construction of Are not subject to any specific ordinance, rule, statute or regulation that prohibits the delivery of electrical service to their lawfully constructed homes on No Name Key, and in fact are entitled to the delivery of electru`�al service by the legislative mandate found in Fla. Stat, 966.02 C. Relied and are relying in ggod faith upon the affirmative governmental act that would allow them to receive electrical service, D. Made a substantial change in position or incurred extensive obligations or expenses in the furtherance of the receipt of electrical service in accordance -with the affirmative governmental act. 21. Plaintiffs have met the standards for Constitutional vested rights that 7 i 1-4 fps 0 FAX require the issuance of a Declaratory Judgi-nent agAiy',st Defend -ant Mol"roe County quitably estoppel fromtaking any act that prohibits ordering that Mortroe County is e Wfull-v 'v Electric Service from providing the !R7 or tends to prohibit DefendantC,t constructed homes on No Name Key with electricity. relief: L WHER-EFORL or, Count, L! Plaintiff pra)ls th,"t tie OPL"� the 1. The Court accept jurisdiction of the Parties and subject matter; rhe Court DECLARE that the owners of lawfiffly constructed homes on No Name ICCY, Monroe [aunty, Florida have a vested property right to receive electrical Sen�,(_e or other appropriate pub1ic utility and the Defenda t power tom City Electri-c Monroe, County is estoppel, prohibited and forbidden to take any act or enforce any U tawful light -ner- receive ar'-" use n,o11c7v that NvoJld interfere wi-Ch the L (.-)f these homeov, W rtL el ectricity ixi their homes The Court DECLARE that the Defendant M-01"rOe countv's Policy Tc Prohilbitingy the delivery Of electrical power to the jawfuUy orLstructed hopnes on C, Name KeY is uncOnstit"t'ona" Violating Art L, Sec. 2, Ar. V111 Sec I(f) Fla. Const, and A01end. 5 and 14, U,S. Const- because it is c6nrls , catory, beyond the, r-1slice Power Of 01""' defendant County, arbitrary and capricious, and has no lawful, rational basis, I Court ENJOIN Defendant from enforcing this P611"CY, iv. The Court RErAJN JURISDICTION over this cause and controversy to 0 enter such further and additional Orders as may be necessary to effr-CLuat(-- its itl-dgmr-At, V, The Court award attorneys' fees and costs of this action against defendant, Pursuant tc, 42 1 § 1988, and grant such other and further relief as may be just. COUNT 11 Q �UNC�TXVE RaIEF CONSTI TIONAL RIGHTS IAGESIOR 20 1 0 22- plaintiff hereby readopts and reallege each and every paragraph above as though fully set forth herein, 23. This is an action for declaratory and injunctive relief pursuant to Fla- Stat. I §86, Aft-i-cle 1, Section 2 and Article Vill, -Section I Of the Florida Coll$t'tution, The F and Fourteenth. Amendments to the United States Constitution, and 42 U.S.C. Section 1983, to declare the Monroe., County policy prohibiting the introduction of electrical County power into the lawfully constructed homes on No Name Key invalid facially and -invalid as applied to the lawfully conFlorida,constructed homes on No. Name Bey, o to enjoin the enforcement or application of this policy, for monetary damages for deprivatiOrL of a protected property right and violation of the Due Process and Equal Protection Rights of the property ommers of the lawfully constructed homes of No Name Key and for attorney's fees pursuant to 42 V.S.C. 1998. 1Y In 4. 2 No portion of this action constitutes a cKliM formefly allowed only equity. 9 96 4- ConStitlltiOn griilrltS tO all 25- _Nrt-idIC oe the Flond. lorida, the rights to be "equal before the law" and ,to acquire, possess, and protect F Fundamental to the Constitutional right to OWn, Property is the right to be V 0 o j--ree of unreasonable, or unlawful, restrictions on the use 0 e of a residence. M-00rev- Cittv st Ckjyeland, 31 47 Ct. 1932,53 L.Ed.2d,531(1977) andFossV. Feu 392 ,a F _4US. 94,9S, So. 2d 606 (3 DCA 1981)- Article VIII grants to the 130-'ffds ­ Section 1 (0 of the Florida Constitution g 26, ordinanms tfitat are not inconsistent with T, 0 Count ,Y cornmissioners the right to enact general or special la'vv. 1 quires public re 27, 1§363-03 re I c utilities such as Del nclant QrV F Service to provide "reasonably sufficient, adequate- and efficiel-It service .... no public Ility StLalt make or give any und ue due or unreasonable preference or advantage to any person or locality, Or subject the same to any undue or tinreasoriable prejudice or disadvantage in any respect". advarvesge il g�,ver, by a statelegislaturf! etre or even an M 28� 'VyThen a eight or PrMI , it is a denial of due process and equal protection to deny that right, or Privilege, or advantage, to some, but not all Of those iOtended to be lienefited by the legislation. 29. Defendants Monroe County and City Electric System have denied and continue to deny the right, Privilege or advantage- of L'Ifectfic serv're, authorrizcd by Fla, Stat. 366.03 to the lawfully constructed homes on No Name Key - to 0 FAX XorganHenndrick3652964331 !t, 017 30. if an ordinance had been passed by Monroe County prohibiting the Mr U.Id delivery of electric service to the lawfully constructed hornes on No Name Key, it WO be in violation of the Florida Constitution at Article VSection I (f) as contrary to III, I general kavv_ 31. HOWever, there is no ordinance or other provisiOn in the Monroe County Code, the Monroe County Land Development Regulations, or the Monroe County Comprehensive Plan, WI-lich specifically prohibits the provision Of electrical service to the -nor for that matter, is there an explicit constructed -homes on No Name Key, prohibition providing of electricity to any similarly situated home in Monroe County. No other property caner in Monroe County is deprived the ri ght to receive clect,icity from a public utility. Property owners on the other side of the Bogie Channel Bridge in Big Pine K-ey, Monroe County, Florida are subject to the same ,and Use Regulations, Comprehensive Plan and Environmental criteria as are imposed on No Name Key, yet each single family home on Big Pine I<ey is treated differently, receiving electricity. 33. No reasonable or lawful reason has been issued by Monroe County as to why the legally constructed homes on No ,Name Key should be . deprived of electricity while every other substantially similar home in Monroe Colinty is treated differently, (by being able to obtain utility supplied electricity) without any rational basis for that different treatment - I I 16: 20 FAI y The dep Ivation of Cimtricity to the oNvners of legallcorNst-fucted on No Name Key bas.-a deleterious effect on their health, safety, security and the peaceful enjqym, ent of their hornes- SPCCfficalIY, (A) the denial of electricity denies certain homeowners on No Name Key with medical equipment (including air conditioning) required by their health conditions which has the effect of threatening and shortening the lives of these homeowners. (B) the denial of electricity denies the homeowners on No Name Key with the riggl-It to hard wired fire detectors and direct cornml.2nication with police, fire and rescue services, threatening the lives and safety Of these homeowners. A (C) the denial of electricity denies certain of he homeowners or' N-0 NaTIIC with the right to clean air and watef th and a PO'lut'oxl free environment by forcing e use Of gasohneand d-tsel poivered genthe air, water ana peace and quiet of the environment, (D) the denial of electricity increases the threats of death and injury to the Key tl - Deer, an endangered species, that lives on No Natytt I Icey, by increasing the traf fic On e island, thereby increasing the likelihood of automobile caused injurie's to the Key Deer, as the largest killer of Key deer is the autom6bile. 35. But for the arbitrary and capricious policy of denying electricity to the alreadv Constructed home-- of No Name Key, the residents of No Name Key vvould. have substantial investment value in their homes, but, with the depravation of electricity that i2 ftRi ti i'e 16: 20 FAX investment value is lost and Monroe County has deprived the owners of No Natut Key of the only means they have of recapturing their investment in their property. 36, Nevertheless, Defendants Monroe County and laity Electric Service continue to deny electrical service to the lawfully constructed homes on No Name Key. 37. No specific policy, ordinance, rule, regulation, memorandum, communication, or any other directive, was ever issued by Monroe County, at any time, to the owners of legally constructed hornes on No Name Icey that indicated they would not be allowed to obtain electricity. 38. Unless this invalid, unwritten, arbitrary and capricious policy is invalidated Plaintiffs will be unable to sell or use their homes in the same mariner as similarly situated hornes that have utility electricity. They will suffer incalculable damage incapable of a remedy at law, and irreparable injury as they will have been deprived of their Constitutional right to sell or use their property in violation of Article I, Section Il, Florida Constitution and the fifth andFourteenth Amendment to the United States Constitution. 39, The acts of Defendant Monroe County deprive the owners of the lawfully constructed homes on No Name Key their constitutional rights to the equal protection of the laws, the right to the due process of law, and the rights guaranteed to them by the Florida Constitution. including the right to sell and use their prOpefy, and to b fre- from imposed governmental prohibitions that are not properly enacted ordinances, and 13 16:211 FAX ar�,. cc)lltrary to general law, WHEREFORE on Count 11 plaintiff prays that the court grant the following L The Court accept lur'sdiction of the parties and subject matter; The Court. DECLARE that the Defendant Monroe r-ounty's Policy '0 rof electrical r to the a Xly constructed hornes on prohibiting the deli"ve ,v _ating Axt I., Sec. 2., Ax. V111 Sec I (f) Fla. Const, and Name Key is unconstitutional, VI-01 Aniend. 5 and 14, U.S. Const., because it is confiscatory, beyond the rP0v-,7Cr Of t! defendant County, arbitrary and Mpricious, and has no IL1wful, rational basis-, The Clourt ENJOIN WerkdarLt fjow, enforcing this T1101110Y iv- The Court }DETAIN JURISDICTION over this cause and controversy to ^ffectuate it's hidgm--nt; _a;LY I- -, - additiOnal cq-ders as raay be -enecP-f_zS­`-' nftr sucn fttrth�er and a and V_ The Court award attorneys' fees and costs of this action against defendant, De girant sucin o urd may Jus Pursuant to 42 U-S-C. 5 19W RTId other and f her rkehef WS f � COL-INT III SECTION 1983 CAM FAC, 'rO (b�AiLADA�TE POLTIC-7K ON ITS 40. Plaintiff hereby readopts and reallege each and eNtery paragraph above as "n ful _v set forth her-I'M 41. plaintiffs, home owners of legally constructed homes on No Name Key, .14 16 : 2 1 Eil MorgarM-endrIck3- 05 90A An 31 I L, tile Y to t, have a constitutionally` -protected property rij, right to TeCE!iVe clectriCit" the hornes that were required to be built with the ability to receive electricity. 4plajnAi�fs have a constitutio,-ally I protected right to be treated with equal 9, V protection of the laws, to wit-. the right to receive electricity free of interference from Monroe County as is required by Fla. Stat. §366- 43, The -right to receive grid electricity Js a Constitutionally protected property right on which Count I and 11 are founded and is created by Article- 1, Section 11. and Article vill, Section I (f) of the Florida Constitution, Fla. Stat. 366.03, the County's plat approvals on No Name Key, the County's issuance of a building pern-tit for the const"'),ction Of hornes on No Name Key, the Countys issuanceof a kcrtificate cal occupancy for the homes constructed pursuant to its permits on No Name Key, and the Plaintiffs' detrimental reliance thereon and eVenditure of sums in excess Of $15,000.00 per house in the process of constructing their home to receive grid electricity, as required by Monroe. County, and the County's Land Development Regulations and Comprehensive Plan. 44, Plaintiff and Defendants are "persons' for purposes of 42 U.S.C.§ 1983. _j. The acts of Defendants, complained c of herein, were all arried out under color of State laws. 46, Once created by t1-je Florida Constitution, Plaintififs vested property rim are protected by Amendments V and XIV of the United States Constitution and the is 16::.I1 FAX MorganHendr1ck3052964331 Z022 depravation of those rights has created a cause of action under 42 1983. Counts I - - - . and under 42 U-51-C- -� 1 t 983 47. -All of the similarly situated property owners within Monroe County, Florida, except dhose owner-s 0 -ucted domes - granted f legally consti - on No Name Key, Are the legislatively enacted privilege and right to have public utilities deliver electrical POW'cr to their hornes, without unreasonable prejudice or disadvantage in any respect, as is required. by Fla. Stat. §366.03. 48. The action of Defendants, Monroe County and City Electric Service, in I t prohibiting the , extension of electrical grid power to No (j-y is a Vio,a-ion of Fla. Suit. §366.03 which prohibition is imposed ',;OlelY on property owners of legally construmd hoxnes on No Narne Kev and no :Dther substantially similar horneowrlCr Irl moxwoe County. 49, 'The Defendant, Monroe County, has not enacted any law, rule, regulation, resolution, ordinance, policy or statement that prohibits grid power from being delivered to the lawfully constructed homes on No Name Key. 50. Ne-Nrertheless and despite the lacl,- of any mplicit or specific prohibitiCin in the Jaws and ordinance of Monroe County, the Defendant Monroe County' continues co I to the alread,,;, constructed homes on No to prohibit the extension of electrical service Name Key Florida_ Said unwritten policy constitutes a vliolation of the Constitutionally orotected ri I ght to the equal protections of the laws as -required by the Federal and 16 Florida Constitution- Said violation deprives Plaintiffs of a constitutionally protected right is in violation of Fla. Stat. §366.03 and 42 U.S.C•§ 19$3 and the First and Fourtecn.th AmendMent to the U.S. Constitution and Art I, Section 2 of the Florida Constitution. 51. I}ursuant to 42 U.S.C.§ 1983 Plaintiff is entitled to recover its attorneys fees and costs. WHEREFORE on Count II Plaintiff prays that the Court giant the fallowing relief: I The Court accept jurisdiction of the parties and subject matter; The Court DECLARE that -the Defendant Monroe County's policy prof,ibitinb the delivery of electrical power to the laArcully constructed homes on 1' O Name IC.ey is unconstitutional and INVALID ON ITS FACE, violating Art I., Sec. 2, Ar. VIII Sec I (f) Fla. Coast, and Amend. 5 and 14, U.S. Const., because it is confiscatory, beyond the police power of the defendant County, arbitrary and capricious, and has no lawful, rational basis; iii. The Court ENJOIN Defendant froze enforcing this policy; iv. The Court RETAIN JURISDICTION over this cause and controversy to enter such further and additional orders as may be necessary to effectuate its judgment; and V. The Court award attomeys' fees and costs of this action against defendant, i 17 1{VCI.flhtfA\C:Qrr-NmAMAC'Mvt\TAXI'Ayr, i'LEhUfNCY�3M�'IiUN.WCt� morsanuenar1CK3052864331 @ 024 i pursuant to 42 U.S.C. § 1988, and grant such other and further relief as may be just. GREENMAN &- MANZ .Attorneys for Plaintiffs 5800 Overseas Highway Suite 40 Marathon, FL 33050 (305)743-235I (305) 743-6523 FAX KLIIN D. GREENMAN Florida flax ##290815 HeNCUCN7VC. ENMAMAC.TIVE%TA%PAYIRW ZADINCXOM►WN wP14 IS SCNNK — History of Commercial Electricity — Packet for New Commissioners—11/2008 August 29,1999 Motion to Dismiss Filed by Defendants, Monroe County Case No. 99-819-CA-18 16th Judicial Circuit Monroe County, Florida IN THE CIRCUTf COURT OF THE SIXTEENTH JUDICLkL CIRCUTT IN AND FOR MONROE COUNTY, FLORIDA TAXPAYERS FOR THE ELECTRIFICATION OF NO NANO KEY, INC., et aL FILE PWntitis, V. CASE NO. 99-819-CA 18 Honorable Judge Sandra Taylor MONROE COUNTY, a political subdivision of the State of Florida, and CITY ELECTRIC SERVICE, Defendants. r IY+1OE_ CQUNTY'S MOTION TU DISMISS Defendant MONROR COUNTY, by and through undersigned counsel, hereby moves. this Court to dismiss Plaintiffs' complaint and as grounds states: -. WARIKS, _ 1. Plaintiffs' claims are barred by the statute of limitations. The governmental act(s) relied upon, i.e., granting of plat approvals, building permits, and/or certificates of occupancy, occurred more than four (4) years ago. U. SUBJECT MATTER JURISDICTIOl►7 2_ This Court lacks subject matter jurisdiction over Plaintiffs' clam because Plaintiffs have failed to exhaust their available administrative remedies_ Plaintiffs have failed to apply for vested rights under the Year 2010 Comprehensive plan and applicable provisions of the Monroe County Code. zII. RES Tt DICATAiC'.0)T LA-TRRAT ESTOPPEL 3 _ Plaintiffs claims are barred by the doctrines of collateral estoppel and/or res judicata. Pursuant to an administrative appeal of a letter of understanding rendered by the 1 Director of Planning, on February 3, 1999, the Monroe County Planning Commission passed and adopted Resolution P17-99. A copy is attached as `Exhibit A." 4, Resolution P17-99 upholds the letter of understanding which sets forth Momroe County's policy to discourage commercial electricity expansion on No Name Trey because it is inconsistent with the 2010 Comprehensive Plan_ Pursuant to the Resolution, the Planning Commission has made findings of fact and legal conclusions relevant to issues set forth in Pla.intiffis Complaint- Plaintiffs are barred from re -litigating those factual and legal issues here. IV. FAILURE TO STATE A CAUSE OF ACTION Count I: Vested Rights 5. Plaintiffs' complaint fails to state a cause of action for vested rights. 6. Plaintiffs have not reasonably relied on any official act of Monroe County that would entitle them to the relief they seek. The requirement that Plaintiffs wire their homes for electric current in compliance with applicable building code standards did not establish that Plaintiffs would be entitled to receive commercial electricity. The electric wiring systems installed in Plaintiffs' homes are necessary for the receipt of any type 'of power, including solar or generator- 7, l iaintizzs were consistently informed that the extension of commercial electricity to No Name Key would violate the Monroe County Year 2010 Comprehensive Plan. Specifically, a, to discourage public and private investment and limit development expectations in the Coastal Barrier Resources System: Objective 102.8, Policies 102.8.1 and 102.8.5, and Goal 209,- 2 b. to discourage development that would adversely impact environmentally sensitive lands: Objectives 101.1, 102.9, 215.2. and 1301-7. Policies 209.3, 102.9.3, 215.2.1, and 1301.7.12, Goals 101, 102, and 215; C. to discourage development that would adversely impact the endangered Key Deer: Objectives 103.1 and 207.7, Policies 103.1.1, 103,1.10, and 207.7.1, Goals 103 and 207, 8. Plaintiffs cite no official act by Monroe County prior or subsequent to the adoption of the 2010 Plan to support their claim for vested rights. The County's approval for homes to be built on specific lots does not include the extension of commercial electric service when that extension is not in compliance with Chapters 163 and 380. Plaintiffs were aware at. the time of construction that commercial electric service would not be permitted. The electric wiring requirements imposed on Plaintiffs are included in the standard building code and are necessary for homes that utilize generator and solar power, as Plaintiffs homes were authorized to use. 9. Plaintiffs did not rely on any official act of Monroe County, nor did they make any substantial change in position based on any act of the County. The electric wiring systems are required for both commercial electric and alternative energy -utilizing, homes. Regardless of the type of energy source used, a residential structure niust meet the minimum electric wiring requirements to ensures public safety. 11 Count II: Declaratory and Igjunctive Action 10. Plaintiffs claim an unabridged right to receive commercial electric service under Section 366,03, ,FLa. Start. plaintiffs' claim fails to state a cause of action because the expansion of commercial electricity on No Name Key is directly inconsistent with the provisions of Chapters 163 and 380, Flax. Slat. Section 366.03, Fla. Siat., does not provide an unabridged right 3 16.16 FA:I Ai)d'kSttddRG2dud i nvvva uvivv+ _ to commercial electric service and is subject to the provisions and limitations of Chapters 163 and 380. 11. Under Chapter 163, Fla Stut., any development approved by local government must be consistent xith its comprehensive plan. In reviewing for consistency, the comprehensive plan goals, objectives, and policies are considered as a whole. The Monroe County 2010 Plan as a whole, seeks to limit increasing development expectations of vacant property owners throughout the County and specifially discourages development of areas including No Name Rey due to environmental sensitivity and Key Deer habitat concerns. The discouraging of development through limiting infraWucture is a widely utilized mechanism for managing growth and is the basis for the concurrency management requirements of Chapter 163. 12. Plaintiffs' properties are also within Coastal Barrier Resources System FL-50 and are therefore have been subject to the provisions of the Coastai Barrier Resources Act and the Coastal Barrier Improvement Act since October 24, 1990. 13. Plaintiffs' claim for declaratory and injunctive relief fails to set forth a proper claim because there is no actual or pending controversy. The provisions of Chapters 163 and 380 are clear and Plaintiffs do not question their applicability or interpretation. Plaintiffs have instead ignored Chapters 163 and 380 entirely and assert that Section 366.03 provides some unabridged, constitutionally protected right to commercial electricity. Plaintiffs' claim is legally insufficient and should be dismissed by this Court_ Plaintiffs may not isolate one statute and attempt to assert that it provides a right that cranr,ot be limited by another statute. 14. As a matter of law, Monroe County's actions are within the police power. The language of Chapter 366 is specific only to electric providers — it does not apply to Monmz County, Chapter 366 places no burden on local governments to provide electric service nor does it negate or override the requirements of Chapters 163 and 3 W 4 08/31/99 16:16 F-4- nuL'su�anGuu.,�nvvvrvv� v_ WT t1�—01e3m 15, Plaintiffs fail to set forth a legally sufficient claim for relief under 42 U-S-C- §19s3. Chapter 366, la Stat., does not provide a constitutionally protected right to receive commercial electricity. Nor do the plat approvals, issuance of building permits, car issuance of F certificates of occupancy establish a protected property right. The electric wiring requirements imposed on plaintiffs are necessary for horses that utilize solar anchor generator -based electricity. 16, Plaintiffs fail to establish a recoozable claim for equal protection. Plaintiffs are not within a protected class. The location of Plaintiffs homes within a Coastal Barrier Zone and within Key Deer habitat establishes a rational basis to prohibit the installation and development of ; omrr.ercial electricity, The requirements of Chapters 163 and 390 also provide a rational basis for preventing the expansion of commercial electric services. WfBREFORE, Defendant MONR.OE COUNTY respectfully requests this Court dismiss Plaiwiffs' complaint. CRYt1`>�'YCA7R of sFyXCE EREFs CER y that a,, —,us and e�rrvct v oft foregoing has been furnished by U.S. Mail to. Franklin D. CJreennuaq Esq., GREENMAN & MANZ, 5800 Overseas Hwy" Suite CFO, Marathon, Florida 33050, FL 33037 this 271' day of August, 1999. R�rar�:"Cnb'l�inas �` Florida Bar No. 0136964 MORGAN & HENDRICK Attorneys for bilonroo Count-y 317 'Whitehead Street Key West, Florida 33040 305-296-5676 305-296-4331 fax KCabanas@flakeysol _ com 5 SCNNK — History of Commer, Electricity — Packet for New Comn iers—11/2008 December 21,1999 Letter from Monroe County Planning Director K. Marlene Conaway to Mr. Franklin Greenman, Attorney for Taxpayers for the Electrification of No Name Key, Inc. Denyina support by t• Monroe County PlanningDepartmentr extendgd to _, r, County of Monroe Planning Department 2798 Overseas Highway Suite 400 Marathon, Florida 33050 Voice: (305) 289-2500 FAX: (305) 289-2536 CERTIFIED MAIL RECEIPT # Z 200 004 171 December 21, 1999 Mr. Frank Greenman, Esq. Greenman and Manz 5800 Overseas Highway Suite 40 Marathon, FL 33050 Board of County Commissioners Mayor Shirley Freeman, Dist. 3 Mayor Pro Tern George Neugent. Dist. 2 Commissioner Wilhelmina Harvey, Dist. l Commissioner Nora Williams, Dist. 4 Commissioner Mary Kay Reich, Dist. 5 RE. Text Amendment to allow electrification of No Name Key Dear Mr. Greenman: This letter is in response to our meeting with you and Mr. Eaken on December 7, 1999. As you will recall, this meeting was held to discuss the Planning Department's position on a possible Year 2010 Comprehensive Plan amendment to allow for the extension of electrical service to No Name Key. The idea of a comprehensive plan amendment was proposed by your clients as a possible way to settle the suit your clients have brought against Monroe County and City Electric System. We appreciate the list of Comprehensive Plan policies you submitted at this meeting as justification for your client's position. The staff and I have had a chance to review the Comprehensive Plan policies related to this matter, and we find that we would not be able to support a comprehensive plan amendment which would allow electricity to be extended to No Name Key. Part of our rationale for this decision is that there are simply too many policies in the Comprehensive Plan which would be in conflict with an amendment of this nature. Allowing the proposed amendment would require these other policies to be amended to a point that could be in conflict with state statutes. Mr. Frank Greenman, Esq. December 21, 19L9 Page 2 Consequently, the Planning Department would respectfully decline to recommend a text amendment to the Year 2010 Comprehensive Plan which would alter existing policies so as to allow for the extension of electrical service to No Name Key. Should you have any additional questions, please feel free to contact the Planning Staff or myself at (305) 289-2500. Thank You. Sincerely, 144Le'IC41 K. Marlene Conaway Planning Director CC: Timothy J. McGarry, A1CP; Director of Growth Management Karen Cabanas, Esq.; Morgan and Hendrick Kimberly Ogren, Comprehensive Planning Manager Chad Meadows, AlCP; Senior Comprehensive Planer File 2 Through the process of comprehensive planning, it is intended that units of local government can preserve, promote, protect and improve the public health, safety, comfort, good order, ap- pearance, convenience, law enforcement and fire prevention, and general welfare; prevent overcrowding of land and avoid undue concentration of population... and conserve, develop, utilize, and protect natural resources within their jurisdictions. Chapter 380 of the Florida Statutes designates the Florida Keys as an area of critical state concern in part in order to protect the natural resources and environment, conserve and promote the community character, and establish a land use management system that promotes orderly and balanced growth in accordance with the capacity of available and planned public utilities and services. Chapter 380 lists twelve principles for guiding development with which all local regulations and programs in the Florida Keys must be consistent. Relevant to your proposal are the following principles: To protect shoreline and marine resources, including man- groves, coral reef formations, wetlands, fish and wildlife and their habitats; To protect upland resources, tropical biological communi- ties, freshwater wetlands, native tropical vegetation, dune ridges and beaches, wildlife and their habitat; To ensure maximum well-being of the Florida Keys and its citizens through sound economic development; To limit adverse impacts of development on the quality of water throughout the Florida Keys; To enhance natural scenic resources, promote the aesthetic benefits of the natural environment and ensure that develop- ment is compatible with the unique historic character of the Florid Keys; To protect the value, efficiency, cost-effectiveness,- and amortized life of existing and proposed major public invest- ments including City Electric service; To protect the public health, safety and welfare of the citi- zens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. The Monroe County Year 2010 Comprehensive Plan has been found to be consistent with both Chapters 163 and 380 of the Florida Stat- utes. As you know, the thrust of both state planning law and the Monroe county Year 2010 comprehensive plan is to direct growth toward existing developed areas and to discourage growth in areas that are environmentally sensitive and/or areas that continue to be in their natural state. Page 2 PRNONAME/TXTDR The majority of the acreage on No dame Key remains undevelcped in its native state. No commercial development exists on the island and the limited industrial uses are in the process of being phased out in accordance with settlement agreements with the Florida Department of Community Affairs. Residential devel- opment is sparse with the concentration of homes being located within three subdivisions. No Name Key is unique, not only because it lacks electrical con- nections, but also because it is remote from US 1, is located entirely within a National Wildlife Refuge and almost entirely within the Coastal Barrier Resource System (CBRS). Refuge and CBRS status were necessitated by the need to reduce the exposure of residents to natural hazards and to reduce adverse impacts on endangered species. The proposed project is inconsistent with the following goals, objectives and policies of the comprehensive plan: GOAL 101 Monroe County shall manage future growth to enhance the quality of life, ensure the safety of County residents and visi- tors and protect valuable natural resources. Objective 101.11 Monroe County shall implement measures to direct future growth away from environmentally sensitive land and toward established development areas served by ex- isting public facilities. GOAL 102 Monroe County shall direct future growth to lands which are intrinsically most suitable for development and shall encourage conservation and protection of environmentally sensi- tive lands. Objective 102.8.1 Monroe county shall take actions to dis- courage private development in areas designated as units of the Coastal Barrier Resource System. Policy 102.8.1 Monroe County shall discourage develop- ments which are proposed in units of the Coastal Barri- er Resource System (CBRS) by methods including, but not limited to, negative points in the permit allocations and point system. Policy 102.8.5 Upon adoption of the Comprehensive Plan, Monroe County shall initiate efforts to discour- age the extension of facilities and services provided by the Florida Keys Aqueduct Authority and private pro- viders of electricity and telephone service to CBRS units.... Objective 102.9 Monroe County shall complete and implement a cooperative land management program for private and county - owned lands located within and adjacent to parks and conser- Page 3 PRNONAME/TXTDR vation lands which are owned by the state and federal govern- ments in the Florida Keys. Policy 102.9.1 Monroe County shall discourage develop- ments which are proposed within Conservation Land Pro- tection Areas by methods including, but not limited to, negative points in the permit allocation and point sys- tem. Policy 102.9.3 ... Conservation lands for which a Con- servation Protection Area shall be designated include the following: 1. Fort Jefferson National Monument 2. National Key Deer Refuge.... GOAL 103 Monroe County shall implement regulations and programs to address the special environmental protection and/or traffic circulation needs of those areas of Big Pine Key.... Objective 103.1 Monroe County shall regulate future develop- ment and coordinate the provision of public facilities on Big Pine Key and No Name Key, consistent with the Goals, Objectives and Policies of this Comprehensive Plan, in order to: (a) protect the Key deer; (b) preserve and enhance the habitat of the Key deer; (c) limit the number of additional vehicular trips from other islands to Big Pine Key; (d) maintain the rural, suburban, and open space character of Big Pine Key; (e) prevent -and reduce adverse secondary and cumulative impacts on Key deer. Policy 103.1.1 The purpose of this policy is to insure the long-term viability of the Key deer by directing development away from those areas necessary to protect the Key deer habitat from the impacts of development. it is recognized that the viability of the endangered Key deer depends on the control of both direct (prima- ry) and indirect (secondary) impacts resulting from development.... Policy 103.1.10 Upon adoption of the Comprehensive Plan, Monroe County shall require that the following analyses be undertaken prior to finalizing plans for the siting of any new public facilities or the signifi- cant expansion of existing public facilities required to support development on Big Pine Key and No Name Key: 1. assessment of needs; 2. evaluation of alternative sites and design alterna- tives for the selected site; and Page 4 PRNONAME/TXTDR 3. assessment of impacts on surrounding land uses and natural resources. The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmen- tally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach/ berm areas, units of the Coastal barrier resource System, undis- turbed uplands, habitats of species considered to be threatened or endangered by the state and/or federal governments, offshore islands, and "Conservation Land Protection Areas. Monroe County shall require that public facilities be developed consistent with the cri- teria described in Policy 101.1.1 and shall support whenever possible the location of public facilities off of Big pine Key and No Name Key. GOAL 207 Monroe County shall protect and conserve existing wild- life and wildlife habitats. Objective 207.7 Monroe County shall implement activities to prohibit the destruction of the federally -designated Key deer and to protect its habitat. Policy 207.7.1 Monroe County shall regulate future development and coordinate the provision of public fa- cilities on Big Pine Key and No Name Key, consistent with the goals, objectives and policies of this Compre- hensive Plan and in order to: 1) protect the Key deer; 2) preserve and enhance the habitat of the Key Deer; and 3) maintain the rural, suburban, and open space charac- teristics of Big Pine Key. GOAL 209 Monroe County shall discourage private land uses on its mainland, offshore islands and undeveloped coastal barriers, and shall protect existing conservation lands from adverse impacts associated with private land uses on adjoining lands. Objective 209.3 Monroe County shall take immediate actions to discourage private development in areas designated as units of the Coastal Barrier Resource System. GOAL 215 Monroe County shall provide the necessary services and infrastructure to support existing and new development proposed by the Future land Use Element while limiting public expendi- tures which result in the loss of or adverse impacts to environ- mental resources in the Coastal Zone. Page 5 PRNONAME/TXTDR Objective 215.2 By January 4, 1997, Monroe County shall ini- tiate programs which require exploration of feasible alterna- tives to funding of public facilities and infrastructure which will result in the loss of or damage to significant coastal or natural resources, including, but not limited to wilderness areas, wildlife habitats, and natural vegetative communities. Policy 215.2.1 By January 4, 1997, Monroe County shall adopt land Development regulations which require consid- eration of feasible design alternatives for new public facilities and infrastructure proposed within the coast- al zone in order to minimize adverse "im pacts to natu- ral resources. GOAL 1301 Monroe County shall promote and encourage intergovernmental coordination between the County, the munici- palities of Key West, Key Colony Beach and Layton; the Counties of Dade and Collier; regional, state and federal governments and private entities in order to anticipate and resolve present and future concerns and conflicts. Objective 1301.7 Monroe County shall implement mechanisms to identify and resolve intergovernmental coordination needs pertaining to environmental issues and natural resource pro- tection. Policy 1301.7.12 By January 4, 1997, Monroe County shall initiate discussions with the FKAA and providers of electricity and telephone service to assess the mea- sures which could be taken to discourage or prohibit extension of facilities and services to Coastal Barrier Resource Systems units. Taken collectively, the goals, objectives and policies of the Monroe County year 2010 comprehensive plan attest to the Coun- ty's position that all development, including electrification, must be discouraged on No Name Key. In support of this posi- tion, the County, as well as state and federal authorities, have expended (and continue to expend) considerable funds on the pur- chase of lands on No Name Key in an effort to ensure that the primary and secondary impacts of development will not occur on the island. Pursuant to Sec. 9.5-43 of the Monroe County Land Development Regulations, you are entitled to rely upon the representations set forth in this letter of understanding as accurate under the regulations currently in effect. However, the Planning Depart- ment acknowledges that all items required as part of the applica- tion for development approval may not have been addressed at the March 25, 1998, meeting, and consequently reserves the right for additional departmental comment. Page 6 PRNONAME/TXTDR We trust that this information is of assistance. If you have any questions regarding the contents of this letter, or if we may further assist you with your project, please feel free to contact our offices (305) 289-2500. TJM/ag cc: James Roberts, County Administrator Larry Thompson, General Manager, City Electric System Richard Grosso Robert L. Herman, Director of Growth Management Antonia Gerli, AICP, Development Review Coordinator Page 7 PRNONAME/TXTDR Various Areas of the Monroe County Year 2O10 Comprehensive Land Use Plan Would Be Affected by a Change in CBRS Policy Policies Related to FKAA Hook-ups in Certain National Refuge Areas Would Also Require Amendments There are several areas of the year 2010 Comprehensive Land Use Plan which have policies that would require amendment if the prohibitions and policies regarding the extension of utilities to CBRS units within Monroe County were to be changed. One such area that would require amendment if CBRS policies were changed are those Goal, Objectives and Policies regarding the extension of FKAA water pipelines into certain areas within the National Refuge System in the Florida Keys. Please see the attached list of "Year 2010 Comprehensive Land Use Plan Policies Regarding the Extension of FKAA Water to Refuge Areas." /3 Year 201O Comprehensive Land Use Plan Policies Re ag_ rdinR the Extension of FKAA Water to Refine Areas Below is a partial list of some of the policies in the Monroe County Year 2010 Comprehensive Land Use Plan regarding the extension of FKAA water to certain area within the National Refuges through out the Florida Keys. No Name Key is one of these areas. Many of these policies, among others, would need to be amended for consistency with the other Goals, Objectives and Policies of the Plan and with the Comprehensive Plan as a whole. GOAL 103 Monroe County shall implement regulations and programs to address the special environmental protection and/or traffic circulation needs of those areas of Big Pine Key, North Key Largo, Holiday Isles and Ohio Key formerly described as the Areas of Critical County Concern (ACCC) in the 1986 version of the Comprehensive Plan and Land Development Regulations. The Goals, Objective and Policies of this Plan will replace the Focal Point Plans. [9J- 5.006(3)(b)1 and 41 Policy 103.1.6 Monroe County shall monitor FKAA compliance with federal regulations prohibiting potable water hookups to designated habitat areas of the Key deer (pursuant to FKAA Rules Chapter 48-7). 19J- 5.012(3)(01, 9J-5.013(2)(c)5 and 61 Policy 103.2.5 Monroe County shall monitor FKAA compliance with federal regulations prohibiting potable water hookups to designated habitat areas of the American crocodile, the Key Largo wood rat, the Key Largo cotton mouse, and the Schaus swallowtail butterfly (pursuant to FKAA Rules Chapter 48-7). 10-5.0120)(01; 0-5.013(2)(05 and 6] Page 1 GOAL 207 Monroe County shall protect and conserve existing wildlife and wildlife habitats. 19J-5.012(3)(a); 9J-5.013(2)(a)] Objective 207.1 By January 4, 1997, Monroe County shall adopt revisions to the Land Development Regulations, which shall protect wildlife and wildlife habitat from adverse impacts of development. L9J-5.012(3)(b)1; 9J-5.013(2)(b)6] POlicv 207.6.4 Monroe County shall support special activities to protect specific species designated by the FWS as threatened or endangered (pursuant to FKAA Rule Chapter 48-7). (See Objectives 207.8 through 207.13 and related policies). [9J-5.012(3)(c)1; 9J- 5.013(2)(05 and 6] Policy 207.6.5 Monroe County shall continue to monitor water connections and hookups by the FKAA to confirm compliance with mandatory requirements of the FWS. These FWS requirements prohibit water connections or hookups within National Wildlife Refuge areas or hardwood hammock areas within its jurisdiction. 19J-5.012(3)(c)1; 9J-5.013(2)(c)5 and 6] PORRy 207.7.6 Monroe County shall monitor FKAA compliance with federal regulations prohibiting potable water hookups to designated habitat areas of the Key deer (pursuant to FKAA Rules Chapter 48-7)• L9J- 5.012(3)(01; 9J-5.O13(2)(c)5 and 6] Policy 207.8.12 Monroe County shall monitor FKAA compliance with federal regulations prohibiting potable water hookups to designated habitat areas of the American crocodile (pursuant to FKAA Rules Chapter 48-7)• 19J-5.012(3)(c)1; 9J-5.013(2)(c)5 and 61 Page 2 DCA Issued a Final Order Rejecting Ordinance 020-2008 That Would Have Lifted the Prohibition of New Infrastructure in Coastal Barrier Resources System Units in Monroe County Back round: June 18.2oo8 At a Regular BOCC meeting on June 18, 2oo8, the Commission directed staff to amend Section 95-258 Coastal Barrier Resources System Overlay District of the Monroe County Code to eliminate the prohibition of the establishment of central wastewater treatment collection systems and support utilities for No Name Key. December 12, 20o8 On December 12, 20o8, the Department of Community Affairs issued DCA Final Order No.: DCAo8-OR-352 which rejected the above -described Ordinance. The Princi leD s for Guiding Develo ment "All land development regulations enacted, amended, or rescinded with an area of critical state concern must be consistent with the Principles for Guiding Development. The Principles are construed as a whole and no specific provision is construed or applied in isolation from the other provisions.", Please note that the proposed ordinance was found to be inconsistent with four of the Principles for Guiding Development and inconsistent with the Principles for Guiding Development as a whole. Please see the attached DCA Final Order rejecting Ordinance 020-20o8. The Princi 1 s for Guidina Development can be found immediately after this Section of this document. 1 DCA Final Order No.: DCAo8-OR-352, page 3. 0 DCA Final Order No.: DCAOS-OR-352 STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS In re: MONROE COUNTY LAND DEVELOPMENT REGULATIONS ADOPTED BY MONROE COUNTY ORDINANCE NO.020-2008 .FINAL ORDER The Department of Community Affairs (the "Department') hereby issues its Final Order, pursuant to §§ 380.05(6), Fla. Stat., and § 380.0552(9), Fla. Stat. (2007), rejecting a land development regulation adopted by a local government within the Florida Keys Area of Critical State Concern as set forth below. F INGS OF FACT The Florida Keys Area is a statutorily designated area of critical state concern, and M(?71roe County is a local government within the Florida Keys Area. 2. On October 17, 2009, the Department received fhr review ? nnroe County (County) Ordinance No. 020-2008 ("Ord. 020-2008"), adopted by the County on September 17, 2008. 3. The purpose of the Ordinance is to amend Section 9.5-258 of the ?Monroe County Code to allow the provision of wastewater service and support utilities to developed properties located within the Coastal Barrier Resources System (CBRS) Overlay. 4. The Coastal Barrier Resources Act (CBRA) of 1982 established the CBRS to restrict the federally subsidized development of coastal barrier areas. See 16 U.S.C. 3504(a)(1). 5. On December 18, 2001, the Monroe County Board of County Commissioners adopted Ordinance No. 043-2001, creating Section 9.5-258 of the Monroe County Code which established the CBRS Overlay District, the purpose of which is to implement the policies of the Comprehensive Plan by prohibiting the extension and expansion of specific types of public DCA Final Order No.: DCAOS-OR-352 utilities to or through lands designated as a unit of the CBRS. 6 On June 18, 2008, the Monroe County Board of County Commissioners directed the Growth Management Staff to amend the Comprehensive Plan and Land Development Regulations to reword the prohibition On utilities such that the focus and priority be placcd on wastewater first and any discussion of electric or any other utility, other than those required to efficiently support a central wastewater collection system, be deferred until the wastewater goal is accomplished. 7. Section 163.3202, Florida Statutes, however, requires that land development regulations contain specific and detailed provisions necessary to implement the adopted comprehensive plan which discourages the extension of facilities and utility services to CBRS units and prohibits public expenditures for new or expanded facilities in areas designated as units of the CBRS except for expenditures necessary for public health and safety. While the County's Comprehensive Plan does not prohibit the extension of facilities and services into CBRS units, Ordinance 020-2008 conflicts with the County's policies discouraging both private and public investments in CBRS units for new or expanded facilities. 8. A comprehensive plan amendment is necessary to resolve this conflict and clarify that the extension of facilities and services to specific areas in CBRS units, including No Name Key, designated as blot Spots for central sewer may be necessary for water quality improvement as well as for financial feasibility and economies of scale in construction of regional wastewater plants. 9. The provision of central wastewater treatment and collection facilities through or to CBRS areas to developed properties may be one option to satisfy the treatment standard requirements of Section 6 of Chapter. 99-395 Laws of Florida. However, sufficient data and analysis has not been provided to address the capital cost allocation issues associated with the provision of central wastewater treatment and collection systems, and where needed, the cost for the provision of electriceil service to the CARS units DCA Final Order No.: DCAOS-OR-352 10. Monroe County staff has indicated that the County will be moving forward with a Comprehensive Plan amendment to address any conflicts with the Comprehensive Plan in the county's first amendment cycle in 2009_ Although the Department is encouraged by the County's efforts to provide central sewer to No Name Key, since the current wastewater construction schedule does not anticipate completion of the new facility for several years, the County has an opportunity to provide an analysis of the magnitude of the additional Public facility costs. 11. if the intent of the County is to provide wastewater only to No Name Key within the CBRS units, the Department would recommend the County first adopt any necessary Comprehensive Plan amendments and subsequently revise Ordinance 020-2008 to target its application to No Name Key. CONCLUSIONS OF_LAW 12. The Department is required to approve or reject land development regulations that are enacted, amended, or rescinded by any local government in the Florida Keys Area of Critical State Concern. § 380.05(6). Fla. Stat.. and § 380.0552(9), Fla. Stat. (2007). 13. Monroe County is a local government -within the Florida Keys Area of Critical State Concern. § 380.0552, Fla. Slat. (2007) and Rule 28-29.002 (superseding Chapter 27F-8), f'la. 'IdInitn. Cowc. 14. "Land development regulations" include local zoning, subdivision, building, and other regulations controlling the development of land. § 380.031(8), Fla. Stat. (2007). The regulations adopted by Ord. 020-2008 are land development regulations. 15. All land development regulations enacted, amended, or rescinded within an area of critical state concern must be consistent with the Principles for Guiding Development (the "Principles") as set forth in § 380.0552(7), Fla. Stat. See .Rathkamp v. Department of Community Affairs, 21 F.A.L.R. 1902 (Dec. 4, 1998), aff'dl, 740 So. 2d 1209 (Fla. 3d DCA 1999). The Principles are constnied as a whole and no specific provision is construed or applied DCA Final Order No.: DCA08-OR-352 in isolation from the other provisions. alga* 16. Ord. 020-2008 fails to promote and further the following Principles: (a) To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. (b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. (h) To protect the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major public investments, including: 1. The Florida Keys Aqueduct and water supply facilities; 2. Sewage collection and disposal facilities; 3. Solid waste collection and disposal facilities; 4. Key West Naval Air Station and other military facilities; S. Transportation facilities, 6. Federal parks, wildlife refuges, and marine sanctuaries; 7. State parks, recreation facilities, aquatic preserves, and other publicly owned properties; 8. City electric service and the Florida Keys Electric Co- op; and 9. Other utilities, as appropriate. (i) To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. 17_ Ord. 020-2008 is inconsistent with the Principles for Guiding Development as a whole. WHEREFORE, IT IS ORDERED that Ord. 020-2008 is found to be inconsistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is hereby REIECTED. This Order becomes effective 21 days after publication in the Florida Administrative Weekly unless a petition is filed as described below. DCA Finial Order No.: DCAOS-OR-352 DONE AND ORDERED in Tallahassee, Florida- 1 'e7 . . I CHA'ft S GAUTHIER, AICP Director, Division of Community Planning Department of Community Affairs '7555 Shumard Galt -Poule yard Tallahassee, Florida 32399-2100 NOTICE OF ADMINISTRATIVE RIGHTS ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING ACTION. DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF MATERIAL FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE PROCEEDING, YOU ARE ENTITLED TO ETHER AN INFORMAL PROCEEDING OR A FORMAL HEARING. IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED ISSUE OF MATERIAL FACT CONTAINED IN THE DEPARTMENT'S ACTION, THEN THE ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED PURSUANT TO SECTIONS 120.569 AND 120.57(2) FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE, IN AN INFORMAL ADMIlOSTRATIVE PROCEEDING, YOU MAY BE REPRESENTED BY COUNSEL OR BY A QUALIFIED REPRESENTATIVE, AND YOU MAY PRESENT WRITTEN OR ORAL EVIDENCE IN OPPi'3SdTION TO THE DEPARTMENT'S ACTION OR REFUSAL TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS CHOSEN TO JUSTIFY ITS ACTION OR INACTION. IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED?N THE AGENCY ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE DIVISION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND 120.57(1), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA ADMINISTRATIVE CODE. AT a FORMAL ADMINISTRATIVE HEARING, YOU MAY BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON ALL THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT REBUTTAL EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS, AND TO FILE EXCEPTIONS TO ANY RECOMMENDED ORDER. DCA Final Order No.: DCAOS-OR-352 IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF COMMUNITY AFFAIRS A WRITTEN PLEADING ENTITLED, "PETITION FOR ADMINISTRATIVE PROCEEDINGS" WITHIN 21 CALENDAR DAYS OF PUBLICATION OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECEIVED BY THE AGENCY CLERK, IN T14E DEPARTMENT'S OFFICE OF GENERAL COUNSEL, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100. THE PETITION MUST MEET THE FILING REQUIREMENTS IN RULE 28- 106.104(2), FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH RULE 28-106.301, FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH RULE 28-106.201(2), FLORIDA ADMINISTRATIVE CODE. A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY RULE 28-106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSING MEDIATION DOES NOT AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING. YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE PROCEEDING OR A FORMAL HEARING IF YOU DO NOT FILE A PETITION WITH THE AGENCY CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL ORDER. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with the undersigned designated Agency Clerk, and that true and ppgect copies have been furnished to the persons Listed below by the method indicated this day of December, 2008. f�kfaula Ford, Agency er By U.S. Mail: Honorable Mario DiGennaro Mayor of Monroe County Florida Keys Marathon Airport 9400 Overseas Highway, Suite 210 Key West, Florida 33050 19 DCA Final Order No.: DCA08-OR-352 Danny L. Kolhage Clerk to the Board of County Commissioners 500 Whitehead Street Key West, Florida 33040 Andrew Trivette Growth Management Director 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 By Hand Delivery or Intera,V,encv Mail: Craig Diamond, Bureau of State Planning, DCA Tallahassee Rebecca Jetton, ACSC Administrator, DCA Tallahassee Richard E. Shine, Assistant General Counsel, DCA Tallahassee January 26, 2009 Special Meeting of the BOCC DCA Transmittal Hearing For Comprehensive Land Use Plan Amendments Marathon, Florida Agenda Item : A public hearing to consider transmittal of a resolution to the DCA, proposing an ordinance to amend Policy 102.8.5 of the Monroe County Year 2010 Comprehensive Plan allow the provision of wastewater service and utilities necessary for its operation to developed properties located with [in] the Coastal Barrier Resources system. Staff Recommendation: Postpone this item until the next Transmittal Hearing date. Outcome: The Board votes (3-2) to continue the item to be heard no later than July 2009 with Murphy and Wigington dissenting. Please see the attached January 26, 2010 letter from The Solar Community of No Name Key, which gives an overview of the issue and also lists the various documents that were used to provide a foundation for correcting the misconception that No Name Key was classified as a wastewater "Hot Spot': (f) The Solar Community of No Name Key 1934 No Name Drive No Name Key, Florida 33043 01/26/2009 Special BOCC Meeting/Transmittal Hearings for Comp Plan Amendments Marathon, Florida Agenda Item 7: "A public hearing to consider transmittal of a resolution to the DCA, proposing an ordinance to amend Policy 102.8.5 of the Monroe County Year 2010 Comprehensive Plan allow the provision of wastewater service and utilities necessary for its operation to developed properties located with [in] the Coastal Barrier Resources system. Dear Mayor Neugent and Fellow Monroe County Commissioners: A. Who We Are and Where We Stand: The Solar Community of No Name Key, formerly known as the No Name Key Property Owners Against Commercial Power, was founded in 1995 in response to efforts to extend commercial electricity to No Name Key. Many of us are here today and would like to be recognized even if we choose not to speak as individuals. Our message has not changed. Our message is simple. 1.) We are NOT members of, nor represented by, the recently formed pro -commercial power organization "No Name Key Property Owners Association, Inc." 2.) We are committed to bringing our current (permitted) on -site septic systems into compliance with the more stringent Year 2010 wastewater standards. 3.) We do NOT support the extension of commercial power to our solar homes on No Name Key; and, will not contribute financially to any such project. B. Previous BOCC Decisions Were Based on Fiction. not Fact. - The May 21, 2oo8, BOCC decision to "start the 12roeedure to put No Name Key back into the "Hot Spot Designation" was NOT based upon relevant factual information, data or analysis. The June 16, 2oo8, BOCC decision to "amend the Code and the Comp Plan to lift the prohibition of the establishment of central wastewater treatment collection systems and utilities for No Name Key" was NOT based upon relevant factual information, data or analysis. The July 23, 20o8, Planning Commission decision to recommend an amendment to Comprehensive Plan Policy 102.8.5 was NOT based upon relevant factual information, data or analysis. CFO C. The Relevant Facts Have Been Demonstrated and Reconfirmed: Our previous submittals to this Board regarding this issue have demonstrated that the above - mentioned BOCC decisions were based upon information that was submitted by some residents of No Name Key, which was never verified as relevant and accurate by Staff. Please see the attached as a small sample of our previous submittals that reconfirm that: 1.) No Name Key was NOT "omitted" from the Monroe County Sanitary Wastewater Master Plan planning process. 2.) No Name Key is NOT, and has never been, a wastewater "Hot Spot." 3.) The Monroe County Sanitary Wastewater Master Plan designated No Name Key as a wastewater "Cold Spot" which could best be served by onsite treatment systems. D. The Facts Do NOT Support the Proposed Amendment to Policy 102.8.5: Since the adoption of the 1986 Comprehensive Land Use Plan, Monroe County has consistently taken positive actions to discourage development on No Name Key. This has taken the form of land acquisition, and the adoption of numerous policies and ordinances. The recent flurry of proposals to encourage development on the Key is contrary to this history, is not based upon any objective data and analysis, and in fact is in violation of the Year 2010 Plan and Chapters 163 and 380, Florida Statues. Please vote NO on this agenda item. Sincerely, Alicia Roemmele-Putney, President Attachments With Page Number: P-1) "07114197,�Scope of Work Map of "Study Areas for Monroe County Sanitary Wastewater Master Plan" shows No Name Key within the boundary of the "Big Pine Key Study Area". P-2) "Exhibit 1-2: Study Areas in the Lower Keys Area for the Monroe County Sanitary Wastewater Master Plan" shows No Name Key within the boundary of the "Big Pine Key P-3 P-3) "Exhibit 6-1: Hot Spot Areas and Rankings - Lower Keys Study Area" does NOT include No Name Key in the list of "Hot Spots". P-4) "Exhibit F-1-B: Hot Spot Areas & Community Wastewater Collection & Treatment System Service Areas" shows No Name Key within "Big Pine Regional Wastewater Management District and as a "Cold Spot." P-5 through P-1o) All five pages of the 1996 Water Quality Hot Spot Iist which shows that No Name Key was not on the water quality "Hot Spot" list. P-11 and P-12) "November 22, 2008 letter from Dr. Kruczynski, Program Scientist Florida Keys National Marine Sanctuary Water Quality Protection Program that states that No Name Key was never and is not a wastewater "Hot Spot, 2 pages. February 18, 2009 Regular Meeting of the BOCC Key Largo, Florida Agenda Item 0-3: Public Hearing to consider rescission of Land Development regulation Ordinance 020-20o8 which amended Section 9.5-258 of the Monroe County Land Development Regulations to allow the provision of Central Wastewater service and support utilities to developed properties located within the Coastal Barrier Resources System. Staff Recommendation: Rescind Ordinance 020-20o8 Outcome: Ordinance No. 020-20o8 was rescinded by a 5-0 vote. This action means that the Ordinance prohibiting the expansion or extension of central wastewater treatment collection systems, portable water and electricity within the Coastal Barrier Resources System Overlay District, which includes all of No Name Key, remains in place in the Monroe County Code. Please see the attached Ordinance 9.5-258• Please see the attached February 18, 2009 letter from The Solar Community of No Name Key to the BOCC. Please see the attached Ordinance 003-2009, which is the ordinance that rescinded ordinance 020-2008. CHAPTER 9.5 4j) LAr tjV L)tvtL%)eWNT K PF_GULATiGNa ARTICLE VII. LAND USIE DISTRICTS cab-tial 6cii-I'ley i7eslaw-ces system, overlxyr dfstrict. (a) Flufrpose- Thle purpose of the Coastal Barrier ResotircPs Systems? overlav district N -to implement the policies of the comprehensive pla". by prohibiting the extension and expansion of specific types of public utilities to or through lands designated as a unit of the Cpasta _1 8; ,)rripr Resotirres SVIIStem. (b) Application: The Coastal Barrier Resources System Overlay District shall be overlaid on all areas, except for Stock Island, within federally designated boundaries of a Coastal Barrier Resources Syqtertl Unit on current flood insurance rate maps approved by the Federal Emergency Management Agency, which are hereby adopted by reference and declared part ot this chapter. Within this overlay district, the transmission and/or collection lines of the following types of public utilities shAll be.prohibjte�d from extension or expansion: Central wastewater treatment collection systems; potaolewater; electricity, and teiephone aild cable. Tht;s prohibition shall not preclude the maintenance and upgrading of existing public utilities in place on the effective date of this Section and shall not apply to wastewater nutrient reduction cluster systems. (Ord- No. 43-2001, § 1) The Solar Community of No Name Key 1934 No Name Drive No Name Key, Florida 33043 Board of County Commissioners Meeting Monroe County, Key Largo, Florida 02/18/2009 Agenda Item O-�: "A public hearing to consider rescission of Land Development Regulation Ordinance 020-2008 which amended Sec. 9.5-258 of the Monroe County Land Development Regulations to allow the provision of Central Wastewater service and support utilities to developed properties located within the Coastal Barrier Resources System." Dear Mayor Neugent and Fellow Monroe County Commissioners: The Solar Community of No Name Key, formerly known as the No Name Key Property Owners Against Commercial Power, was founded in 1995 in response to efforts to extend commercial electricity to No Name Key. Many of us are here today and would like to be recognized even if we choose not to speak as individuals. Our message has not changed. Our message is simple. Our opposition to the extension of commercial power to No Name Key does not in any way diminish our desire and commitment to bring our current septic systems into compliance with the Year 2010 wastewater standards. We believe the standard can be met without the extension of commercial power to the 43 homes on No Name Key and without having to use composting toilets. The June 16, 2oo8, BOCC decision to "amend the Code and the Comp Plan to lift the prohibition of the establishment of a central wastewater collection system and utilities for No Name Key" was NOT based upon relevant factual information, data or analysis On September 17, 20o8, the previous BOCC adopted Ordinance No. 20-2oo8, which prejudged the solution for wastewater on No Name Key without waiting for facts and analyses. This was wrong and the BOCC was so advised at that very meeting to wait until a Comp Plan amendment was in place before making any change the Code. We now have a chance to correct that error. On December 17, 2008, the Monroe County Board of County Commissioners directed the Florida Keys Aqueduct Authority to investigate all wastewater options prior to making the determination of which technology would be the most appropriate choice given the unique circumstances of No Name Key. We are not prejudging what specific technology would best serve No Name Key. We are only asking that any proposed amendment to the Monroe County Code and/or Year 2010 Comprehensive Plan be held off until substantial data and competent analysis are available. Please vote YES to REPEAL and RECIND Ordinance No. 20-2oo8 as recommended by Staff. Thank you. ORDINANCE 003 -2009 AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS REPEALING AND RESCINDING ORDINANCE No. 20-2008 CONCERNING THE PROVISION OF CENTRAL SANITARY SEWER AND OTHER UTILITIES TO COASTAL BARRIER RESOURCE UNITS; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF INCONSISTENT PROVISIONS; PROVIDING FOR TRANSMITTAL TO THE DEPARTMENT OF COMMUNITY AFFAIRS AND THE SECRETARY OF STATE; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, 'Monroe County is in an area designated as an area of critical state concern; and WHEREAS, the Monroe County Board of County Commissioners passed a land development Ordinance 20-2008 on September 17, 2008 concerning the provision of central sewer service and other utilities to be provided to properties within the Coastal Barrier Resource System (CBRS) units within the jurisdiction of Monroe County; and WHEREAS, the County's current comprehensive plan discourages the provision of utilities within CBRS units; and WHEREAS, the Department of Community Affairs (DCA) provided its intent to find Ordinance No. 020- 2008 not in compliance and inconsistent with the County's 2010 Comprehensive Plan and the principles for guiding development as set forth in Chapter 380 of the Florida Statutes in Final Order No. 08-OR-352. stating also that there was not enough data and analysis, and that the ordinance was not specific enough in it s application to certain CBRS units; and WHEREAS, a member of the public has appealed the DCA's Final Order; and WHEREAS, land development regulations are not effective in an area of critical state concern until the DCA provides notification that the ordinance is consistent with the County's comprehensive plan and the principles for guiding development; and WHEREAS, the Board is following the process to adopt a Comprehensive Plan amendment concerning this same subject at the second transmittal for the year 2009; and WHEREAS, the language of the land development regulation may not accurately reflect what is included in the Comprehensive Plan amendment; and WHEREAS, the Planning Commission considered this matter at a public hearing on February 11, 2009, and WHEREAS, the Board of County Commissioners has considered the comments from the DCA, staff.. the Planning Commission, and the public; and WHEREAS, based on the findings of the DCA and advice of the County Attorney, and considering the input from staff and recommendation of the Planning Commission, the Board has found that it is in the best interest of the public not to pursue the appeal of the final order and directed staff not to appeal the order, but to rescind Ordinance 20-2008; NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Section 1. Repealer. Ordinance No. 20-2008 is hereby rescinded and repealed in its entirety. Section 2. Severability. If any section, paragraph, subdivision, clause, sentence or provision of this ordinance shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, invalidate, or nullify the remainder of this ordinance, but the effect thereof shall be confined to the section, paragraph, subdivision, clause, sentence, or provision immediately involved in the controversy in which such judgment or decree shall be rendered. Section 3. Conflicting Provisions. In the case of direct conflict between any provision of this ordinance and a portion or provision of any appropriate federal, state, or County law, rule code or regulation, the more restrictive shall apply. Section 4. Transmittal. This ordinance shall be transmitted by the Planning and Environmental Resources Department to the Florida Department of Community Affairs to determine the consistency of this ordinance with the Florida Statutes and as required by F.S. 380.05(6) and (11). Section 5. Filing. This ordinance shall be filed in the Office of the Secretary of the State of Florida but shall not become effective until a notice is issued by the Department of Community Affairs or Administration Commission approving the ordinance. Section 6. Effective Date. This ordinance shall become effective as provided by law and stated above. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a regular meeting held on the 18th of February 2009. Mayor George Neugent Mayor Pro Tern Sylvia Murphy Commissioner Kim Wigington Commissioner Heather Carruthers -Commissioner Mario Di Gennaro Attcgt "kl L. K LHAGE, CLERK By {' :Deputy Cler c 'n Yes Yese7� _ Yes C:)M --n Yes r � j = Yes rn ?°r �c c-4=y MONROE COUNTY BOAR�'Of. " ... Q;J COUNTY COMMISSIONEn Go By ! Mayor George Neugent MONROE CC TY ATTORNEY .r�.� 7?,n l L - t0ORM� MONROE COUNTY COURTHOUSE 500 WHITEHEAD STREET, SUITE 101 KEY WEST, FLORIDA 33040 TEL. (305) 294-4641 FAX (305) 295-3663 BRANCH OFFICE: MARATHON SUB COURTHOUSE 3117 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 TEL. (305) 289-6027 FAX (305) 289-1745 ��GOUNTyO U• ,N C�O f CoilNtv.py� CLERK OF THE CIRCUIT COURT MONROE COUNTY www.clerk-of-the-court.com Ms. Liz Cloud, Program Administrator Administrative Code & Weekly R.A. Gray Building 500 S Bronough Street Tallahassee FL .32399-0250 Dear Ms. Cloud, March 12, 2009 BRANCH OFFICE: PLANTATION KEY GOVERNMENT CENTER 88820 OVERSEAS HIGHWAY PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 FAX (305) 852-7146 ROTH BUILDING 50 HIGH POINT ROAD PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 FAX (305) 853-7440 Via Certified Mail 70051160 0000 3841 2372 Enclosed is a certified copy of Ordinance No. 003-2009 repealing and rescinding Ordinance No. 020-2008 concerning the provision of central sanitary sewer and other utilities to coastal barrier resource units; providing for severability; providing for repeal of inconsistent provisions; providing for transmittal to the Department of Community Affairs and the Secretary of State; providing for an effective date. This Ordinance was adopted by the Monroe County Board of County Commissioners at a Regular Meeting, held in formal session, on February 18, 2009. Please file for record. Should you have any questions please feel free to contact me at (305) 295-3130. Danny L. Kolhage Clerk of the Circuit Court and ex officio Clerk to the Board of County Commissioners by: Pamela G. Hancock, D. C. cc: Via E-Mail to the following: Municipal Code Corporation Growth Management County Attorney BOCC File The Principles for Guiding Development "All land development regulations enacted, amended, or rescinded with an area of critical state concern must be consistent with the Principles for Guiding Development. The Principles are construed as a whole and no specific provision is construed or applied in isolation from the other provisions.", ' DCA Final Order No.: DCAo8-OR-352, page 3. 0 7) * PRINCIPLES FOR GUIDING DEVELOPMENT. *State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, which chapter is hereby adopted and incorporated herein by reference. For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the principles for guiding development and any amendments to the principles, the principles shall be construed as a whole and no specific provision shall be construed or applied in isolation from the other provisions. However, the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, are repealed 18 months from July 1, 1986. After repeal, the following shall be the principles with which any plan amendments must be consistent: (a) To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. (b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. (c) To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. (d) To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. (e) To limit the adverse impacts of development on the quality of water throughout the Florida Keys. (f) To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. (g) To protect the historical heritage of the Florida Keys. Page 1 (h) To protect the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major public investments, including: 1. The Florida Keys Aqueduct and water supply facilities; 2. Sewage collection and disposal facilities; 3. Solid waste collection and disposal facilities; 4. Key West Naval Air Station and other military facilities; 5. Transportation facilities; 6. Federal parks, wildlife refuges, and marine sanctuaries; 7. State parks, recreation facilities, aquatic preserves, and other publicly owned properties; 8. City electric service and the Florida Keys Electric Co-op; and 9. Other utilities, as appropriate. (i) To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. 0) To make available adequate affordable housing for all sectors of the population of the Florida Keys. (k) To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a post disaster reconstruction plan. (1) To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. Page 2 Numerous Inconsistencies Exist Between the Big Pine Key Habitat Conservation Plan — Incidental Tape Permit (ITP) No. TE o83411-o and the Extension of a New Infrastructure to No Name Kev No Name Key provides habitat for seven federally -listed endangered species. The Habitat Conservation Plan (HCP) covers four of these seven species. The impacts to the silver rice rat, the Stock Island tree snail and Garber's spurge are not covered in the HCP or the concomitant Incidental Take Permit (ITP) issued by USFWS. Only certain types of development activities are allowed on Big Pine Key and No Name Key during the 20-year horizon of the Habitat Conservation Plan. The extension of utilities is not one of the allowed activities and is therefore not covered the associated Incidental Take Permit. Below are a few examples of the inconsistencies between the Habitat Conservation Plan (HCP) for Big Pine Key and No Name Key and the extension of a new infrastructure to No Name Key. A copy of the Incidental Take Permit is attached. The Incidental Take Permit (ITP) defines public infrastructure (roads) as development. Condition G-16 states: "Public infrastructure development will be restricted to disturbed lands as defined in the Monroe County Code (9.5-4 [D-14][S-2])." The Habitat Conservation Plan designates all of No Name Key as Tier 1 lands. The type of development allowed in Tier 1 by the Incidental Take Permit (ITP) is limited. Condition G-6 states: "No new development other than single-family residential and accessory uses will be permitted in Tier 1 areas." The main road on No Name Key, SR 4-A, bisects Lower Keys marsh rabbit habitat. Condition G-20 states: "No development will be allowed in Lower Keys marsh rabbit habitat." These issues, and others, need to be addressed in a second Habitat Conservation Plan and a second Incidental Take Permit (ITP). olt� The October 15, 2010 U. S. Fish and Wildlife Service Letter to Keys Energy Services (KES) is Not an Endangered Species Act "Concurrence Letter" "The Service's October 15, 2010 letter to Keys Energy Services (KES) is not a "concurrence letter" pursuant to Section 7 of the Endangered Species Act but rather an advisory opinion"' To date, "the [Endangered Species Act] Section 7 consultation process has not been triggered and no Incidental Take Statement is in place for either of these projects"2 1. A project to extend commercial electricity to No Name Key or 2. A project to trim hardwood hammock trees on No Name Key. The Service's October 15, 2010 letter to KES "does not conclude that the KES project is covered by and consistent with the Big Pine Key HCP nor does it constitute an ITP/HCP in its own right."3 Please see the attached November 8, 2010 letter from Everglades Law Center to USFWS and Monroe County. 1 November 8, 2010 letter from Everglades Law Center to USFWS and Monroe County, page 2. 2 Ibid. Ibid. N dM November 8, 2010 Everglades Law Center, Inc. Spencer Simon Defending Florida's Ecosystems Assistant Field Supervisor - Ecological Services and Communities U.S. Fish and Wildlife Service Shepard Broad 1-:111Conte:r 1339 20th Street Nova Southeastern Universiti 3305 College Avenue Vero Beach, Florida 32960 Ft Lauderdale, Florida 33314 Phone: (954) 262-6140 Fax: (954) 262-3992 Bob Shillin er g Chief Assistant County Attorney Monroe County Attorney's Office Board ol. Directors l l l l 12th Street, Suite 408 President Key West, FL 33040 Thomas T. Ankersen, Esq. Treasurer RFi : No Name Key Tree -Trimming Richard Hamann, Esq. Secretary Dear Spencer and Bob, Joel A. Mintz, Esq. Laurie Ann Macdonald I am writing on behalf of Alicia Putney to express concern that Monroe County's plans to trim hardwood hammock trees on No Name Key Janet Reno, Esq. may result in the unauthorized take of the Stock Island tree snail under the David White, Esq. Endangered Species Act (ESA). We therefore urge the County to apply for an incidental take permit (ITP) and prepare a habitat conservation plan John H. Hankinson, Esq. (HCP) for this activity so as to minimize and mitigate impacts to the snail and any other listed species that might be killed, injured or harassed as a Executive {lirector General Counsel result of this project. Richard Grosso, Esq. Our concerns stem from a recent letter dated October 15, 2010, Regional Director Senior Counsel wherein the Fish & Wildlife Service stated that it has reviewed a biological Lisa Interlandi, Esq. assessment prepared by Keys Energy Services (KES) and concurs with Trial Counsel KES's view that the proposed extension of electrical service into No Name Robert N. Hartsell, Esq. Key would not likely adversely affect a number of federally listed species. Staff Counsel This conclusion was based in part on the preparation of a "protection plan" Jason Totoiu, Esq. for the Stock Island Tree Snail and Garber's Spurge that was attached to the Service's letter. It is our understanding that some in the community have called for such trimming and have suggested that the County follow the guidance set forth in the Service's letter. We believe that this would not be a prudent course of action for the County and could result in the unlawful take of the Stock Island Tree Snail for several reasons. The Everglades Law Center, Inc. is a tax-exempt Florida not -for -profit corporation pursuant to Section 501(c)(3) of the Internal Revenue Coa The KES protection plan was prepared for KES' plans to engage in whatever trimming is necessary to accommodate the construction of transmission poles within a defined right of way. There is no indication that the trimming envisioned here is for a limited purpose or within a narrowly defined area. Thus, given the potentially large-scale nature of the County's trimming plans there could be a significant cumulative impact of both the KES trimming and the County's latest trimming proposal on species such as the threatened Stock Island Tree Snail. Should the Service determine that this may occur, we would hope that the Service would revisit its October 15'h decision and urge both the County and KES to apply for incidental take permits for both projects. Moreover, the KES protection plan does not set forth an established protocol that is sufficient under the law to protect endangered and threatened species. For example, the correspondence fails to specify whether the biologist assigned to that project would be required to possess an Incidental Take Permit for the removal and relocation of the Stock Island tree snail. Before the County engages in any tree trimming, there must be written assurances that the supervising biologist obtain an ITP even if the County chooses not to obtain an ITP for this specific activity. In light of the fact that "take" under Section 9 of the Act encompasses more than simply the killing of a listed species, but also the harming or harassment of a species,' it is imperative that whoever is charged with the task of removing, and/or relocating these snails do so in a manner that avoids harming or harassing the species. In the event this process results in the take of one or more snails, an ITP would assure some degree of accountability by imposing certain monitoring and reportinI requirements,2 establishing a limit on the number of snails that could be lawfully taken, and requiring the revocation of the permit should the permit holder fail to comply with the terms and conditions of the permit.4 Lastly, the Service's October 15, 2010 letter is not a "concurrence letter" pursuant to Section 7 of the Endangered Species Act but rather an advisory opinion that the project is "not likely to adversely affect" listed species.5 At this point in time, the Section 7 consultation process has not been triggered and no Incidental Take Statement is in place for either of these projects. Moreover, while the October 15`h letter references the Service's review of the project "in accordance with the Big Pine Key HCP," this letter does not conclude that the KES project is covered by and consistent with the Big Pine Key HCP nor does it constitute an ITP/HCP in its own right.b Because this letter is only 1 See 16 U.S.C. § 1532(19). 'See 50 C.F.R. § 17.22(b)(3). 'See 50 C.F.R. § 17.22(b)(2)(iii); Habitat Conservation Planning and Incidental Take Permit Processing Handbook at 3-14. 4 16 U.S.C. § 1539(a)(2)(C). 5 See Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9`' Cir. 1996) (holding that Service's advice to lumber companies on how to avoid the "take" of certain listed species did not constitute "agency action" under Section 7 of the ESA). 6 Nor could the Service conclude that such activities are protected by the Big Pine Key HCP as the extension of utilities to No Name Key is not one of the activities covered by the HCP. The HCP only covers limited residential development, commercial development and expansion, community and 2 advisory and does not authorize take either under Section 7 or Section 10 of the Act, it does not immunize KES, the County, or any other non-federal party from Section 9 liability should "take" occur. Further, the Service's determination that the KES project is "not likely to adversely affect" is premature at this stage. While the October 15tb letter is not a Section 7 concurrence letter, the Service nevertheless elected to use the phrase "not likely to adversely affect" in this instance. That particular phrase has a s?ecific meaning under the Act, as it is the standard for terminating Section 7 consultation. A "not likely to adversely affect" (NLAA) finding can only occur when the Service is certain that the effects on species are de minimis, discountable or insignificant.8 "If the nature of the effects cannot be determined, benefit of the doubt is given to the species" and the Service cannot issue an NLAA determination.9 The KES protection plan fails to specify the relocation site for these snails so as to ensure that the selected host trees are in an area suitable for relocation. Without any monitoring and reporting requirements in place to account for the removal and relocation of each and every snail, it is unclear just how many snails will be removed, where they will end up and what shape they will be in at the time of relocation. In light of these uncertainties, the Service cannot conclude at this time that the project will "not likely adversely affect" listed species. Given the deficiencies of the KES protection plan, the potential cumulative impacts of the two tree trimming projects, and no existing Section 7 or Section 10 protections in place for either project, we would strongly urge the County to apply for an ITP for this project and develop a habitat conservation plan that minimizes and mitigates impacts to the snail and any other listed species that could be killed, harmed or harassed as a result of this project. 10 In consideration of the project's close proximity to federal refuge lands and trust resources we expect that similar protections would be in place for these federal resources." institutional facilities, and transportation improvements. See Habitat Conservation Plan for Florida Key Deer and other Protected Species on Big Pine Key and No Name Key, Monroe County Florida, 18 (April 2006). Clearing of native habitat is strictly limited to parcels to be developed for residential development, local road widening and fire breaks. See Big Pine Key ITP at G-4. Moreover, any impacts to the silver rice rat, tree snail, and Garber's spurge would also not be covered by the HCP as the HCP only authorizes a specified level of take for the Key Deer, Lower Keys Marsh Rabbit and Eastern Indigo Snake. See HCP at 20. 7 See 50 C.F.R. § 402.12. S See Final ESA Consultation Handbook, at 3-12, 3-13 (March 1998). 9 See Section 3-12, Final ESA Section 7 Consultation Handbook, March 1998. 10 A requirement for the issuance of an ITP is that the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such takings. See 50 C.F.R. § 17.22(b)(2)(i)(B). " We would hope that the development of the HCP would include close coordination with the National Key Deer Refuge to analyze the potential indirect impacts to refuge resources (consistent with Section 7 of the ESA and NEPA). The Service should require the County to minimize and mitigate such impacts consistent with Section 10 of the Act and the federal government's broad constitutional powers to protect its public lands, even where such activities arise on non-federal lands. See Kleppe v. New Mexico, 426 U.S. 529 (1976). 3 Should the County chose not to apply for an incidental take permit, we would strongly urge that the County work in close cooperation with the Service to develop a detailed action plan to protect the snail. We believe that such a plan would set forth a strict protocol for all tree -trimming activities and require that a qualified biologist supervise any and all trimming. Further, the biologist should possess an incidental take permit for the removal and relocation of these snails even where the County has not obtained an ITP for this activity. This is common practice whenever listed species are the subject of research or relocation efforts and we would expect that it be the case here. The plan must also specify the relocation site for these snails so as to ensure that the selected host trees are in an area suitable for relocation. This plan must be followed each and every time the County engages in future tree trimming on No Name Key for the protection of listed species under the Act. We thank you for your consideration of our concerns and we would welcome the opportunity to sit down with the Service and the County and further discuss this matter. Sincerely, Jason Totoiu Staff Counsel Everglades Law Center cc: (electronic only) Alicia Putney El No Name Kev Was Never Designated As A Wastewater Hot Shot When the issue of commercial power to No Name Key resurfaced in April of 20o8, it was under the; guise of wastewater. The pro -utilities contingent from No Name Key asserted that No Name Key was a wastewater Hot Spot and that No Name Key was "left out" of the 2000 Monroe County Sanitary Wastewater Master Plan. Further, they tried to demonstrate that No Name Key needed to be hooked into a centralized collection system. Predictably, they argued that the only central collection system which made sense for No Name Key would use a grinder pump which ran 24 hours a day, seven days a week, and would therefore require commercial electric service to be extended to No Name Key. On September 17, 20o8 it was this issue that lead the Commission (made up of DiGenarro, McCoy, Spehar, Neugent and Murphy) to vote 3 to 2, to amend the Comprehensive Land Use Plan and Monroe County Code to allow centralized wastewater and back-up utilities to be extended into Coastal Barrier Resources System units. such as No Name Key. By the end of 2008 the Solar Community of No Name Key was able to demonstrated beyond any shadow of doubt that No Name Key was never designated as a wastewater "Hot Spot." We further demonstrated that No Name Key was included in the Monroe County Sanitary Wastewater Master Plan (2000), was targeted for onsite wastewater nutrient reduction systems (OWNRS) and that systems, which meet the 2010 wastewater standards, will work in an off -grid setting without the use of generators. In spite of these facts, the pro -utilities contingent continued to try to argue otherwise, and the issue of No Name Key and Wastewater was heard by the BOCC several more times in 2009 and went before the Governor and Cabinet in December of that year. Please see the attached documents that were prepared by the Department of Community Affairs for the Governor and Cabinet in December 2009. Department of Community Affairs Report to the Cabinet Aides Regarding No Name Key Wastewater Issues November 23, 2009 STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS "Dedicated to making Florida a better place to call home " CHARLIE CRIST THOMAS G. PELHAM Govemor Secretary Date: November 23, 2009 To: Cabinet Aides From: Areas of Critical State Concern Staff Subject: No Name Key Wastewater Questions No Name Key *Please note: The Monroe County Sanitary Wastewater Master utilizes the term "hot spot" to define areas that are anticipated to be served by central community wastewater systems, not to define potential areas of degraded water. Hot Spot Designation The 2000 Monroe County Sanitary Wastewater Master Plan (Master Plan) defines "hot spots" as areas that are anticipated to be served by central community wastewater systems. Under the Master Plan central wastewater collection and treatment systems would be implemented in those areas where the wastewater management alternatives analyses determined that sufficient density existed to make central sewers cost effective. • Chapter 6 "Water Quality Hot Spots." "The subject of this Master Plan has been to determine the most efficient, economical, and technically effective means of meeting this mandate [1999 Florida legislation that mandates the reduction of nutrients in effluent from both onsite systems and wastewater treatment plants] and the water quality goals for the surrounding waters of the Keys." • "Exhibits 6-1 through 6-3 list the ranked "Hot Spots", and include "Hot Spots" for the entire Master Plan study area, including Islamorada, Village of Islands and the recently incorporated City of Marathon." • The Master Plan does not include No Name Key as an area to be sewered. 2555 SHUMARD OAK BOULEVARD ♦ TALLAHASSEE, FL 32399-2100 850-488-8466 (p) ♦ 850-921-0781 (f) ♦ Website: v,-n icc! sjat .11.u. ♦ COMMUHITY PLANNING 850488-2356 (p) 850.488-3309 (f) ♦ FLORIDA COMMUNITIES TRUST 850-922-2207 (p) 850-921-1747 (f) 4 HOUSING AND COMMUNITY DEVELOPMENT 850488-7956 (p) 850-922-5623 (f) • 1999 Master Plan Technical Memorandum No. 4: Analysis of wastewater derived nutrients from developed land -based areas of the Keys. • The purpose of this technical memorandum is to quantify water quality problem areas within the 27 Master Plan study areas. • [The analysis] provides county, planning, health, and environmental administrators numerical data for use in evaluating problem areas based on nutrient (nitrogen or phosphorus) discharge density, nutrient (nitrogen or phosphorus) discharge, and the number of unknown systems. • Estimated nutrient (nitrogen or phosphorus) discharge per unit land area was calculated by dividing the estimated nutrient discharge of the subdivision by the land area of the subdivision. • Phase 1 of the Report identified Bahia Shores on No Name Key as a water quality hot spot. o The first hot spot list appeared in the Phase I Report of the Water Quality Protection Program for the Florida Keys National Marine Sanctuary (EPA, 1992). This list was created with input from R. J. Helbling, Environmental Administrator and Branch Office Manager for the Florida Department of Environmental Protection (FDEP) in Marathon, Florida, and the results of a workshop on water quality degradation in nearshore and confined waters. • Revised hot spot list does not include No Name Key. o The most recent list of water quality hot spots was included in the 1997 Memorandum of Understanding (MOU) developed for coordinated review of wastewater disposal permits and permits for development in Monroe County. Hot spots on the MOU list represented the consensus of the four agencies that signed it. which were the DCA FDEP, DOH (state and Monroe County), and Monroe County. Environmental Protection Agency (y EPA) William Kruczynski, EPA Program Scientists, issues a letter on November 22, 2008, to Richard Grosso at the Everglades Law Center, to describe the history of No Name Key. • "The canal system at No Name Key was on a preliminary list of canal that were identified as potential sources of degraded water to receiving waters. All canals on that list were originally identified as "hot spots." However, No Name Key was not identified as a hot spot for wastewater planning." • No Name Key was identified in the Monroe County Sanitary Wastewater Master Plan as a "cold spot." Meaning that it was determined that wastewater improvements could be accomplished effectively with onsite, not central collection and treatment, wastewater systems." • Letter provides a history/summary of listings of degrades water bodies 0 1985, FDEP samples major residential canal systems and other near shore waters in support of designation of the Keys as an "Outstanding Florida Water." The canal at No Name Key was included in that water quality sampling program. o The canals and other near shore waters that were sampled during the Outstanding Florida Water Study (1993) appeared as a list of potential sources of degraded water quality to receiving waters in a planning document that was 2 prepared during the development of the Water Quality Protection Program for the Florida Keys National Marine Sanctuary. All areas sampled were identified as "water quality hot spots," i.e., areas with known or suspected severely degraded water quality. o At an interagency workshop in 1996, the list of water quality hot spots was revised and updated. A new list was prepared that included the relative ranking of the top 19 canal systems and other waters that demonstrate poor water quality based upon literature and the collective experience of the participants of the workshop. No Name Key was not on the revised list of water quality hot spots. Monroe Counjy Comprehensive Plan Coastal Barrier Resources Act issue The Monroe County Comprehensive Plan discourages the extension of facilities and services provided by the Florida Keys Aqueduct Authority (wastewater and potable water provider) and private providers of electricity and telephone service to Coastal Barrier Resource System units and prohibits public expenditures for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, except for expenditures necessary for public health and safety. • A portion of No Name Key is designated as a Coastal Barrier Resource System (Unit FL- 50). Wastewater Service Areas Monroe County Board of County Commissioners adopted Resolution 179-2009 on June 17, 2009. Resolution 179-2009 provides a map identifying the centralized service area (regional/central wastewater), decentralized service area (no regional/central sewer but onsite system owners may enroll in an upgrade/replacement program provided by FKAA) and non service areas (offshore islands). • No Name Key has been identified as a decentralized service area (an area where regional/central sewer will not be provided but onsite system owners may enroll in an upgrade/replacement program provided by FKAA) The anticipated cost for the provision of central wastewater service and the other utilities necessary to provide sanitary wastewater collection and treatment is approximately $75,000 per household on No Name Key. Estimated Cost to Sewer No Name Key Florida Keys Aqueduct Authority's estimated construction costs to serve No Name Key a Low - Pressure Sewer System. • Estimated total probable construction costs = $2,596,209.00 Estimated cost per household = $57,693.53 Note: Does not include design services, easement/property acquisition, permitting, onsite plumbing or electrical on private property or septic tank abandonment/conversion. 3 Estimated Cost for Above/UnderUound Electrical Service to No Name Key Estimated total cost for overhead construction = $756,000 Estimated cost per household = $16,800 Estimated total cost for underground construction = $1,808,000 Estimated cost per household = $40,177 Note: Does not include permitting, mitigation, easements, etc. Attachments: • November 22, 2008, William Kruczynski, EPA Program Scientists, letter to Richard Grosso at the Everglades Law Center describing the history of No Name Key. • Policies from Monroe County Comprehensive Plan on Coastal Barrier Resource Systems. • Map of Coastal Barrier Resource System Unit FL-50 (No Name Key). • Monroe County Resolution 179-2009 (identifying wastewater service areas) • Email from Monroe County with Estimated Cost to Sewer No Name Key • Email from Monroe County with Estimated Cost for Above/Underground Electrical Service to No Name Key El UNITED STATES ENVIfiONMENTAt, PROTECTION AGENCY i REGION 4 WATER MANAGEMENT DIVISION 800111 11ORIDA OFFICE 400 NORTH CONGRESS AVE., SUITE 120 WFST PALM BEACH, FLORIDA 33,101 November 22, 2008 Richard Grosso, Esq. Nova Southeastern University Shepard Broad Law Center 3305 College Avenue Ft. Lauderdale, FL 33314-7721 Dear Mr. Grosso: 11 has come to my attention that some residents of No Name Key (Monroe County), Florida have argued that No Name Key is a water quality "hot spot" and thus slated to receive a central collection and treatment system that would require electricity to accomplish. That argument is not supported by the facts. The canal system at No Name Key was on a preliminary list of canals that were identified as potential sources of' degraded water to receiving waters. All canals on that list were originally identified as "hot spots." However, No Name Key was not identified as a hot spot for wastewater planning. Thus, part of the confusion in this matter is semantic. No Name Key was identified in the Monroe County Sanitary Wastewater Master Plan as a "cold spot", meaning that it was determined that wastewater improvements could be accomplished effectively with onsite, not central collection and treatment, wastewater systems. It is my understanding that the designation of No Name Key as a cold spot for wastewater planning is included in a Monroe County Ordinance. Because the confusion in this matter stems in pail lirom a misinterpretation of the history of listings of degraded water bodies, 1 have included below a brief discussion of the salient facts. This history is discussed in "Water Quality Concerns in the Florida Keys: Sources, Rffi cts, and Solutions" (EPA 904-R-99--005). In 1985, FOEP sampled the major residential canal systems and other near shore waters in the Keys from Ocean Reef to Key West in support of designation of the Keys as an "Outstanding Florida Water." Tate report concluded that many of the canals have degraded water, "often below standards." The canal at Bahia Shores Subdivision, No Name Key, was included in that water quality sampling program. 2. The canals and other near shore waters that were sampled during the Outstanding Florida Water Study appeared as a list of potential sources of degraded water quality to receiving waters in a planning document that was prepared during the development of the Water Quality Protection Program for Recydedi Recyclable . Prifif( l w411 VWPIIHN10 Oil H_+snn Inks oil HncVrAkvl Parvv f,101; prrsfrnm:umarj the Florida Keys National Marine Sanctuary (EPA Phase 11 Report, 1993, Table 6-4). All the areas sampled were identified as "water quality hot spots", i.e. areas with known or suspected severely degraded water quality. The list of water quality hotspots was revised and updated at an interagency workshop sponsored by the South Florida Water Management District (March 19, 1996). Also, a new list was prepared that included the relative ranking of the top 19 canal systems and other waters that demonstrate poor water quality based on the literature and the collective experience of the participants of the workshop. This new list is included as pages 3 through 5 of Table 5 (Florida Keys -Priority Water Quality Hot Spots) in the publication "Water Quality Concerns in the Florida Keys: Sources, Effects, and Solutions". Note that the text of that EPA Report has a typographical error and states that the meeting occurred on April 16, 1996 (page 19). The new list also included a brief description of the potential solutions to water quality problems for each of the prioritized water quality hot spots. No Name Key was not on the revised list of water quality hotspots. 4. The Monroe County Sanitary Wastewater Master Plan took a fresh look at all areas of the Keys and evaluated them based upon their potential nutrient addition to receiving waters, number and density of houses, economics, and other environmental considerations. Service areas were ranked based upon potential for environmental harm and designated as either a "hotspot for wastewater planning" or a "cold spot for wastewater planning." Hot spots could best be served with central collection and treatment systems. Cold spots could best be served by onsite treatment systems. No Name Key was identified as a cold spot in the Wastewater Master Plan. I hope that this summary of the history helps you understand the source of the controversy over the status of No Name Key in wastewater planning. If you have any questions or wish to discuss this in any more detail, you may reach me by telephone (561 310-9145 cell phone; 305 872-5690 home) or email (kruczynski.bill@epa.gov). Sincerely, William L. Krui, Ph.D. Program Scientist Florida Keys National Marine Sanctuary Water Quality Protection Program MONROE COUNTY COMPREHENSIVE PLAN Policy 215.2.3 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. Policy 217.4.2 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. Policy 1401.2.2 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. Policy 101.12.4 Monroe County shall require that the following analyses be undertaken prior to finalizing plans for the siting of any new or the significant expansion (greater than 25 percent) of any existing public facility: 1. assessment of needs; 2. evaluation of alternative sites and design alternatives for the alternative sites; and, 3. assessment of direct and secondary impacts on surrounding land uses and natural resources. The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach berm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality hammock and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, offshore islands, and designated Tier I areas. Except for passive recreational facilities on publicly -owned land, no new public community or utility facility other than water distribution and sewer collection lines or pump/vacuum/lift stations shall be allowed within Tier I designated areas or Tier III Special Protection Area unless it can be accomplished without clearing of hammock or pinelands. Exceptions to this requirement may be made to protect the public health, safety, and welfare, if all the following criteria are met: 1. No reasonable alternatives exist to the proposed location; and 2. The proposed location is approved by a supermajority of the Board of County Commissioners. The site of the Key Largo Wastewater Treatment Facility (located at mile marker 100.5) with an allowed clearing of up to 4.2 acres shall not be subject to this policy. Objective 102.8 Monroe County shall take actions to discourage private development in areas designated as units of the Coastal Barrier Resources System. Policy 102.8.1 Monroe County shall discourage developments which are proposed in units of Coastal Barrier Resources System (CBRS) Policy 102.8.4 By January 4, 1998, privately -owned undeveloped land located within the CBRS units shall be considered for acquisition by Monroe County for conservation purposes through the Monroe County Natural Heritage and Park Program. Policy 102.8.5 Monroe County shall efforts to discourage the extension of facilities and services provided by the Florida Keys Aqueduct Authority and private providers of electricity and telephone service to CBRS units. These efforts shall include providing each of the utility providers with: 1. a map of the areas of Monroe County which are included in CBRS units; 2. a copy of the Executive Summary in Report to Congress: Coastal Barrier Resources System published by the U.S. Department of the Interior, Coastal Barriers Study Group, which specifies restrictions to federally subsidized development in CBRS units; 3. Monroe County policies regarding local efforts to discourage both private and public investment in CBRS units. Policy 103.2.4 Upon adoption of the Comprehensive Plan, Monroe County shall require that the following analyses be undertaken prior to finalizing plans for the siting of any new public facilities or the significant expansion (greater than 25 percent) of existing public facilities: 1. assessment of needs 2. evaluation of alternative sites and design alternatives for the selected sites; and 3. assessment of impacts on surrounding land uses and natural resources. The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beachiberm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality hammocks and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, offshore islands, and Conservation Land Protection Areas. Monroe County shall require that public facilities be developed on the least environmentally sensitive lands and shall prohibit the location of public facilities on North Key Largo, unless no feasible alternative exists and such facilities are required to protect the public health, safety, or welfare. Policy 103.2.10 Monroe County shall take immediate actions to discourage private development in areas designated as units of the Coastal Barrier Resources System. (See Objective 102.8 and related policies.) Objective 209.3 Monroe County shall take immediate actions to discourage private development in areas designated as units of the Coastal Barrier Resources System (CBRS). (See Future Land Use Objective 102.8 and related policies.) U) c-c "Za-6- RESOLUTION NO. 179 -2009 A RESOLUTION OF THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONFIRMING THE INTENDED WASTEWATER SERVICE AREAS AS EITHER CENTRALIZED OR DECENTRALIZED AND CLEARLY SHOWING NON -SERVICE AREAS WITHIN MONROE COUNTY AND THE FLORIDA KEYS AQUEDUCT AUTHORITY WASTEWATER JURISDICTIONAL AREAS WHEREAS, Proposed Rule 28-20.130 includes the following requirement: (a) By July 1, 2009, identify by County resolution the areas of the County that will be served by central sewage facilities ("service areas") and the areas of the County that will not be served by central sewage facilities ("non -service areas"). and; WHEREAS, Monroe County has approved "service areas" and "non -service areas" associated with wastewater service based on the recommendations of staff and the Keys Wastewater Master Plan for all areas of the Monroe County/FKAA wastewater jurisdictional area; and WHEREAS, Monroe County has approved a joint proposal by the FKAA and the Florida Department of Health to provide optional decentralized service to areas of Monroe County not included in a centralized service area with the exception of off shore islands; and WHEREAS, Monroe County through the above described actions has created a service area which consists of both centralized service and decentralized service with off shore islands being the only non - service area within the Monroe County/FKAA wastewater jurisdictional area. NOW, THEREFORE, BE IT RESOLVED by the Monroe County Board of County Commissioners: Section 1: The attached map which details the following: L Service Area -Monroe County/FKAA Wastewater jurisdictional area to be supplied with wastewater treatment service a. Centralized - Uses a regional collection system and treats effluent at a regional plant location b. De -centralized - No regional collection system and/or treatment is available, on site system owners may enroll in an upgrade/replacement program provided by the FKAA 2. Non -Service Area - No regional collection system is available and on site system compliance with Chapter 99-395 of the Laws of Florida is the responsibility of the land owner shall serve as the official preliminary depiction of wastewater treatment service and non - service areas within the Monroe County/FKAA wastewater jurisdictional area. Section2: This preliminary depiction of service area may be modified as required by final system design and recommendations from the FKAA. Following the completion of final system design a final service area map shall be approved by the BOCC through an amended resolution. PASSED ANI) ADOPTED by the Board of County Commissioners of Monroe County, Florida at a regular meeting held on the 17th day of June . 2009. Mayor George Neugent No Mayor Jiro /cam Sylvia Murphy Yes Commissioner Kim Wigington Yes_ — Commissioner Ileather Carruthers Yes Commissioner Mario Di Gennaro No BOARD OF COUNTY COMMISSIONERS OF MOLAR F. C'O.NTY. FLORIDA e. Mayor George Neugent (SEAL), ATTESTS mY L. KOLIIAG) . CLERK Deputy C'ler c� cv Cr O N iA- Cn W ci:- c a _ k 2 � � z 2 � � � \� \ � 0 § 2 R � � � � .IV � k 0 | ! 222||| !� ■� � !! � ■ �¢ i 4 Ninety-seventh Congress of the United States of America AT THE SECOND SESSION Begun and held at the City of Washington on Monday, the twenty-fifth day of January, one thousand nine hundred and eighty-two An Act To protect and conserve fish and wildlife resources, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the "Coastal Barrier Resources Act". SEC. 2. FINDINGS AND PURPOSE. (a) FINDINGS. — The Congress finds that— (1) coastal barriers along the Atlantic and Gulf coasts of the United States and the adjacent wetlands, marshes, estuaries, inlets and nearshore waters provide — (A) habitats for migratory birds and other wildlife; and (B) habitats which are essential spawning, nursery, nesting, and feeding areas for commercially and recreationally important species of finfish and shellfish, as well as other aquatic organisms such as sea turtles; (2) coastal barriers contain resources of extraordinary scenic, scientific, recreational, natural, historic, archeological, cultural, and economic importance; which are being irretrievably damaged and lost due to development on, among, and adjacent to, such barriers; (3) coastal barriers serve as natural storm protective buffers and are generally unsuitable for development because they are vulnerable to hurricane and other storm damage and because natural shoreline recession and the movement of unstable sediments undermine manmade structures; (4) certain actions and programs of the Federal Government have subsidized and permitted development on coastal barriers and the result has been the loss of barrier resources, threats to human life, health, and property, and the expenditure of millions of tax dollars each year; and (5) a program of coordinated action by Federal, State, and local governments is critical to the more appropriate use and conservation of coastal barriers. (b) PURPOSE. — The Congress declares that it is the purpose of this Act to minimize the loss of human life, wasteful expenditure of Federal revenues, and the damage to fish, wildlife, and other natural resources associated with the coastal barriers along the Atlantic and Gulf coasts by restricting future Federal expenditures and financial assistance which have the effect of encouraging development of coastal barriers, by establishing a Coastal Barrier Resources System, and by considering the means and measures by which the long-term conservation of these fish, wildlife, and other natural resources may be achieved. SEC. 3. DEFINITIONS. For purposes of this Act— (1) The term "undeveloped coastal barrier" means — (A) a depositional geologic feature (such as a bay barrier, tombolo, barrier spit, or barrier island) that— (i) consists of unconsolidated sedimentary materials, (ii) is subject to wave, tidal, and wind energies, and (iii) protects landward aquatic habitats from direct wave attack; and (B) all associated aquatic habitats, including the adjacent wetlands, marshes, estuaries, inlets, and nearshore waters; but only if such feature and associated habitats (i) contain few manmade structures and these structures, and man's activities on such feature and within such habitats, do not significantly impede geomorphic and ecological processes, and (ii) are not included within the boundaries of an area established under Federal, State, or local law, or held by a qualified organization as defined in section 170(h)(3) of the Internal Revenue Code of 1954, primarily for wildlife refuge, sanctuary, recreational, or natural resource conservation purposes. (2) The term "Committees" refers to the Committee on Merchant Marine and Fisheries of the House of Representatives and the Committee on Environment and Public Works of the Senate. (3) The term "financial assistance" means any form of loan, grant, guaranty, insurance, payment, rebate, subsidy, or any other form of direct or indirect Federal assistance other than — (A) general revenue -sharing grants made under section 102 of the State and Local Fiscal Assistance Amendments of 1972 (31 U.S.C. 1221); (B) deposit or account insurance for customers of banks, savings and loan associations, credit unions, or similar institutions; (C) the purchase of mortgages or loans by the Government National Mortgage Association, the Federal National Mortgage Association, or the Federal Home Loan Mortgage Corporation; (D) assistance for environmental studies, planning, and assessments that are required incident to the issuance of permits or other authorizations under Federal law; and (E) assistance pursuant to programs entirely unrelated to development, such as any Federal or federally assisted public assistance program or any Federal old - age survivors or disability insurance program. Effective October 1, 1983, such term includes flood insurance described in section 1321 of the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4028). (4) The term "Secretary" means the Secretary of the Interior. (5) The term "System unit" means any undeveloped coastal barrier, or combination of closely -related undeveloped coastal barriers, included within the Coastal Barrier Resources System established by section 4. SEC. 4. THE COASTAL BARRIER RESOURCES SYSTEM. (a) ESTABLISHMENT. — (1) There is established the Coastal Barrier Resources System which shall consist of those undeveloped coastal barriers located on the Atlantic and Gulf coasts of the United States that are identified and generally depicted on the maps that are entitled "Coastal Barrier Resources System", numbered A01 through T12, and dated September 30, 1982. (2) Any person or persons or other entity owning or controlling land on an undeveloped coastal barrier, associated landform or any portion thereof not within the Coastal Barrier Resources System established under paragraph (1) may, within one year after the date of enactment of this Act, elect to have such land included within the Coastal Barrier Resources System. This election shall be made in compliance with regulations established for this purpose by the Secretary not later than one hundred and eighty days after the date of enactment of this Act; and, once made and filed in accordance with the laws regulating the sale or other transfer of land or other real property of the State in which such land is located, shall have the same force and effect as if such land had originally been included within the Coastal Barrier Resources System. (b)(1) As soon as practicable after the enactment of this Act, the maps referred to in paragraph (1) of subsection (a) shall be filed with the Committees by the Secretary, and each such map shall have the same force and effect as if included in this Act, except that correction of clerical and typographical errors in each such map may be made. Each such map shall be on file and available for public inspection in the Office of the Director of the United States Fish and Wildlife Service, Department of the Interior, and in other appropriate offices of the Service. (2) As soon as practicable after the date of the enactment of this Act, the Secretary shall provide copies of the maps referred to in paragraph (1) of subsection (a) to the chief executive officer of (A) each State and county or equivalent jurisdiction in which a system unit is located, (B) each State coastal zone management agency in those States which have a coastal zone management plan approved pursuant to section 306 of the Coastal Zone Management Act of 1972 (16 U.S.C. 1455) and in which a system unit is located, and (C) each appropriate Federal agency. (c) BOUNDARY MODIFICATIONS. — (1) Within 180 days after the date of enactment of this Act, the Secretary may make such minor and technical modifications to the boundaries of system units as depicted on the maps referred to in paragraph (1) of subsection (a) as are consistent with the purposes of this Act and necessary to clarify the boundaries of said system units; except that, for system units within States which have, on the date of enactment, a coastal zone management plan approved pursuant to section 306 of the Coastal Zone Management Act of 1972 (16 U.S.C. 1455�- (A) each appropriate State coastal zone management agency may within 90 days after the date of enactment of this Act, submit to the Secretary proposals for such minor and technical modifications; and (B) the Secretary may, within 180 days after the date of enactment of this Act, make such minor and technical modifications to the boundaries of such system units. (2) The Secretary shall, not less than 30 days prior to the effective date of any such boundary modification made under the authority of paragraph (1), submit written notice of such modification to (A) each of the Committees and (B) each of the appropriate officers referred to in paragraph (2) of subsection (b). (3) The Secretary shall conduct, at least once every five years, a review of the maps referred to in paragraph (1) of subsection (a) and make, in consultation with the appropriate officers referred to in paragraph (2) of subsection (b), such minor and technical modifications to the boundaries of system units as are necessary solely to reflect changes that have occurred in the size or location of any system units as a result of natural forces. (4) If, in the case of any minor and technical modification to the boundaries of system units made under the authority of this subsection, an appropriate chief executive officer of a State, county or equivalent jurisdiction, or State coastal zone management agency to which notice was given in accordance with this subsection files comments disagreeing with all or part of the modification and the Secretary makes a modification which is in conflict with such comments, or if the Secretary fails to adopt a modification pursuant to a proposal submitted by an appropriate State coastal zone management agency under paragraph (1)(A), the Secretary shall submit to the chief executive officer a written justification for his failure to make modifications consistent with such comments or proposals. SEC. 5. LIMITATIONS ON FEDERAL EXPENDITURES AFFECTING THE SYSTEM. (a) Except as provided in section 6, no new expenditures or new financial assistance may be made available under authority of any Federal law for any purpose within the Coastal Barrier Resources System, including, but not limited to— (1) the construction or purchase of any structure, appurtenance, facility, or related infrastructure; (2) the construction or purchase of any road, airport, boat landing facility, or other facility on, or bridge or causeway to, any System unit; and (3) the carrying out of any project to prevent the erosion of, or to otherwise stabilize, any inlet, shoreline, or inshore area, except that such assistance and expenditures may be made available on units designated pursuant to section 4 on maps numbered SO1 through S08 for purposes other than encouraging development and, in all units, in cases where an emergency threatens life, land, and property immediately adjacent to that unit. (b) An expenditure or financial assistance made available under authority of Federal law shall, for purposes of this Act, be a new expenditure or new financial assistance if- (1) in any case with respect to which specific appropriations are required, no money for construction or purchase purposes was appropriated before the date of the enactment of this Act; or (2) no legally binding commitment for the expenditure or financial assistance was made before such date of enactment. SEC. 6. EXCEPTIONS. (a) Notwithstanding section 5, the appropriate Federal officer, after consultation with the Secretary, may make Federal expenditures or financial assistance available within the Coastal Barrier Resources System for- (1) any use or facility necessary for the exploration, extraction, or transportation of energy resources which can be carried out only on, in, or adjacent to coastal water areas because the use or facility requires access to the coastal water body; (2) the maintenance of existing channel improvements and related structures, such as jetties, and including the disposal of dredge materials related to such improvements; (3) the maintenance, replacement, reconstruction, or repair, but not the expansion, of publicly -owned or publicly -operated roads, structures, or facilities that are essential links in a larger network or system; (4) military activities essential to national security; (5) the construction, operation, maintenance, and rehabilitation of Coast Guard facilities and access thereto; and (6) any of the following actions or projects, but only if the making available of expenditures or assistance therefor is consistent with the purposes of this Act: (A) Projects for the study, management, protection and enhancement of fish and wildlife resources and habitats, including, but not limited to, acquisition of fish and wildlife habitats and related lands, stabilization projects for fish and wildlife habitats, and recreational projects. (B) The establishment, operation, and maintenance of air and water navigation aids and devices, and for access thereto. (C) Projects under the Land and Water Conservation Fund Act of 1965 (16 U.S.C. 4601-4 through 11) and the Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq.). (D) Scientific research, including but not limited to aeronautical, atmospheric, space, geologic, marine, fish and wildlife and other research, development, and applications. (E) Assistance for emergency actions essential to the saving of lives and the protection of property and the public health and safety, if such actions are performed pursuant to sections 305 and 306 of the Disaster Relief Act of 1974 (42 U.S.C. 5145 and 5146) and section 1362 of the National Flood Insurance Act of 1968 (42 U.S.C. 4103) and are limited to actions that are necessary to alleviate the emergency. (F) The maintenance, replacement, reconstruction, or repair, but not the expansion, of publicly owned or publicly operated roads, structures, or facilities. (G) Nonstructural projects for shoreline stabilization that are designed to mimic, enhance, or restore natural stabilization systems. (b) For purposes of subsection (a)(2), a channel improvement or a related structure shall be treated as an existing improvement or an existing related structure only if all, or a portion, of the moneys for such an improvement or structure was appropriated before the date of the enactment of this Act. SEC. 7. CERTIFICATION OF COMPLIANCE. The Director of the Office of Management and Budget shall, on behalf of each Federal agency concerned, make written certification that each such agency has complied with the provisions of this Act during each fiscal year beginning after September 30, 1982. Such certification shall be submitted on an annual basis to the House of Representatives and the Senate pursuant to the schedule required under the Congressional Budget and Impoundment Control Act of 1974. SEC. 8. PRIORITY OF LAWS. Nothing contained in this Act shall be construed as indicating an intent on the part of the Congress to change the existing relationship of other Federal laws to the law of a State, or a political subdivision of a State, or to relieve any person of any obligation imposed by any law of any State, or political subdivision of a State. No provision of this Act shall be construed to invalidate any provision of State or local law unless there is a direct conflict between such provision and the law of the State, or political subdivision of the State, so that the two cannot be reconciled or consistently stand together. This Act shall in no way be interpreted to interfere with a State's right to protect, rehabilitate, preserve, and restore lands within its established boundary. SEC. 9. SEPARABILITY. If any provision of this Act or the application thereof to any person or circumstance is held invalid, the remainder of the Act and the application of such provision to other persons not similarly situated or to other circumstances shall not be affected thereby. SEC. 10. REPORTS TO CONGRESS. (a) IN GENERAL. — Before the close of the 3-year period beginning on the date of the enactment of this Act, the Secretary shall prepare and submit to the Committees a report regarding the System. (b) CONSULTATION IN PREPARING REPORT. — The Secretary shall prepare the report required under subsection (a) in consultation with the Governors of the States in which System units are located and with the coastal zone management agencies of the States in which System units are located and after providing opportunity for, and considering, public comment. (c) REPORT CONTENT. — The report required under subsection (a) shall contain— (1) recommendations for the conservation of the fish, wildlife, and other natural resources of the System based on an evaluation and comparison of all management alternatives, and combinations thereof, such as State and local actions (including management plans approved under the Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq.)), Federal actions (including acquisition for administration as part of the National Wildlife Refuge System), and initiatives by private organizations and individuals; (2) recommendations for additions to, or deletions from, the Coastal Barrier Resources System, and for modifications to the boundaries of System units; (3) a summary of the comments received from the Governors of the States, State coastal zone management agencies, other government officials, and the public regarding the System; and (4) an analysis of the effect, if any, that general revenue sharing grants made under section 102 of the State and Local Fiscal Assistance Amendments of 1972 (31 U.S.C. 1221) have had on undeveloped coastal barriers. SEC. 11. AMENDMENTS REGARDING FLOOD INSURANCE. (a) Section 1321 of the National Flood Insurance Act of 1968 (42 U.S.C. 4028) is amended to read as follows: "UNDEVELOPED COASTAL BARRIERS "SEC. 1321. No new flood insurance coverage may be provided under this title on or after October 1, 1983, for any new construction or substantial improvements of structures located on any coastal barrier within the Coastal Barrier Resources System established by section 4 of the Coastal Barrier Resources Act. A federally insured financial institution may make loans secured by structures which are not eligible for flood insurance by reason of this section." (b) Section 341 (d)(2) of the Omnibus Budget and Reconciliation Act of 1981 (Public Law 97-35) is repealed. SEC. 12. AUTHORIZATION OF APPROPRIATIONS. There is authorized to be appropriated to the Department of the Interior $1,000,000 for the period beginning October 1, 1982, and ending September 30, 1985, for purposes of carrying out sections 4 and 10. Speaker of the House of Representatives Vice President of the United States and President of the Senate January 28, 2009 Regular Meeting of the BOCC Key West, Florida Agenda Item I-3: Consideration to Approve 2009 Update to the Monroe County Wastewater Master Plan [20oo] and authorization to present this item to the Monroe County Board of County Commissioners for consideration. The Solar Community of No Name Key entered several exhibits from the Monroe County Wastewater Master Plan into the record. Outcome: The Board voted 5-0 to amend the final map and return No Name Key to its original designation in the Monroe County Wastewater Master Plan as an area targeted for onsite wastewater nutrient reduction systems and, thereby removing No Name Key from the proposed 2009 Cudjoe Regional Wastewater Master Plan. BOARD OF DIRECTORS, FLORIDA KEYS AQUEDUCT AUTHORITY AGENDA ITEM SUMMARY AGENDA ITEM # CONSENT: REGULAR: Meeting Date:January 22, 2Q08 Department: Engineering AGENDA TITLE: Consideration to Approve 2009 Update to the Monroe County Wastewater Master Plan and authorization to present this item to the Monroe County Board of County Commissioners for consideration. ITEM BACKGROUND: At the County's request, FKAA performed a wastewater conveyance alternatives analysis and as a result, developed basic guidelines for extending central sewer to previously named "cold spot" areas. FKAA, the County and the Monroe County Health Department are in the process of developing a plan to handle the remaining on -site systems through an Interlocal Agreement. It is expected that the proposed ILA will be presented to the Board at the February Board Meeting. The FKAA and Monroe County held two meetings with the residents of the Cudjoe Regional wastewater district in December 2008. Comments from the citizens have been considered and incorporated into the proposed 2009 changes to the Wastewater Plan. PREVIOUS RELEVANT ACTION BY FKAA BOARD OF DIRECTORS: 10� /08 Staff made presentation to the Board on proposed implementation changes to the Wastewater Plan. STAFF RECOMMENDATION (MOTION): Staff recommends the Board of Directors approve the 2009 Update to the Monroe County Wastewater Plan: - to provide for the inclusion of additional properties to the central wastewater system; - to provide that properties that are located in the wastewater districts that will not be connected to central wastewater systems receive funding equitable to properties connected to the central systems, and - to authorize staff to present this item to the Monroe County BOCC for approval. SUPPLEMENTAL INFORMATION: See attached summary and exhibits. DOCUMENTATION: Included: To -Follow: Not Required: COST FKAA: $ BUDGETED: Yes No COSTIOTHERS: $ COST TOTAL: $ DEPARTMENT DIRECTOR APPROVAL: 2eviewed by: Director Ex. 30ARD ACTION: Internal Auditor: '117, General ►pproved: O Tabled: 0 Disapproved: J :omments: ate: Recording Clerk: Recommendation Revised: O Director: The Solar Community of No Name Key 1934 No Name Drive No Name Key, Florida 33043 01/28/2009 BOCC Regular Meeting Key West, Florida Aaenda. Item I-7: AGENDA ITEM WORDING: "Discussion and approval of 2009 update to Monroe County Sanitary Wastewater Master Plan that delineates boundaries of the Cudjoe Regional centralized wastewater treatment system." CONTRACT/AGREEMENT CHANGES: "Update [Monroe County, 20001 Sanitary Wastewater Master Plan to incorporate proposed changes." Dear Mayor Neugent and Fellow Monroe County Commissioners: We are here today to ask for your help in trying to minimize future confusion over the issue of wastewater "Cold Spot" and "Hot Spots" with regard to a planned connection to a central sewer collection system or an onsite wastewater nutrient reduction system permitted by the State. Monroe County Ordinance o ii-199_q called for the establishment of wastewater "Hot Spots" and defines "Hot Spots" as "those areas that are anticipated to be served by central community wastewater systems within the next io years or by year 2010"; and, "that all areas not designated as "Hot Spot Areas" are "Cold Spot Areas." Page three of the back-up materials for this agenda item, a copy of which was just given to each Commissioner, describes wastewater "Cold Spots" as those "areas that must employ on -site BAT compliant technology." Technically speaking, this is not an accurate statement. As you know, there is nothing in the Master Plan that would prohibit an area designated as a wastewater "Cold Spot" from being connected to a regional sewer system. In fact, Chapter 6 of the Master Plan addresses this very issue on page 6-2 by stating, "as the year 2010 approaches, property owners with existing onsite system will opt for the lease expensive alternative for them and the surrounding area, which would entail hooking up to a central collection and treatment system." Exhibit F-1-B of the Wastewater Master Plan, a copy of which was just given to each of Commissioner, clearly show that all of No Name Key is a wastewater "Cold Spot Area." The fact that No Name Key was designated by the Master Plan as a wastewater "Cold Spot" is undisputed by this Commission, Growth Management and Planning staff, and needs to be understood by all. -1- Unfortunately the map on page twelve of the back-up materials for this agenda item, a copy of which was just given to each Commissioner, incorrectly shows two large portions of No Name Key in RED color which are named "Original Regional System Connected Parcels" and would signify areas the Master Plan originally defined as wastewater "Hot Spots", not "Cold Spots." Also, we would like to point out that the two area on No Name Key currently shown in RED, include undeveloped privately owned properties, conservation land owned by the Department of Interior, conservation land owned by Monroe County; and, exclude one of 42 lawfully established single family residential units that currently exist on No Name Key. We realize our request to correct this FKAA map is picky and apologize in advance for that fact. But, given the time and energy and money we have had to spend in the last year trying to correct misinformation brought before this Board that unfortunately went unchallenged at the public hearings, we feel the need to ask you to please ask FKAA to remove the RED shaded areas from their map and correctly depict No Name Key as a wastewater "Cold Spot." We would further ask that this FKAA planning map remain aligned with Monroe County Sanitary Wastewater Master Plan's designation of No Name Key as a wastewater "Cold Spot" until such time that a formal recommendation, based upon a full analysis of all of the alternative has been made by the relevant agencies (FKAA, DOA and DCA), is reviewed and adopted by this Board of County Commissioners as the best technology for us to meet the Year 2010 wastewater standards. Thank you for your patience in this matter. Sincerely, a,Qc,erw Alicia Roemmele-Putney Attachments: A-1 Page 3 of the Agenda Item I-3 Back -Up Material that states, "areas that must employ on -site BAT compliant technology." (1 Page) A-2 Page 11 of the Agenda Item 1-3 Back -Up Material: Color map of Lower Big Pine Key showing "Original Regional System Connected Parcels" in Red; and, showing "Proposed Expanded Regional System Connected Parcels" in Blue.." (1 Page) A-3 Page 12 of the Agenda Item 1-3 Back -Up Material: Color map of Lower No Name Key showing "Original Regional System Connected Parcels" in Red; and, showing "Proposed Expanded Regional System Connected Parcels" in Blue.." (1 Page) A-4 Monroe County Sanitary Wastewater Master Plan Exhibit F-i-B: "Hot Spot Areas & Community Wastewater Collection & Treatment System Service Areas" that indicates that No Name Key lies within the "Big Pine Regional Wastewater Management District and is designated a wastewater "Cold Spot." (i Page) WZ June 17, 2009 Regular Meeting of the BOCC Marathon, Florida Agenda Item K-2: Approval of a resolution by the Monroe County Board of County Commissioners confirming the intended wastewater service areas as either centralized or decentralized, and clearly showing non -service areas within Monroe County and the Florida Keys Aqueduct Authority Wastewater jurisdictional areas. Background Rule 28-20.130 states that the County shall identify by resolution the above -described boundaries by July 1, 2009. Outcome: The back-up material included a map that erroneously showed the developed portions of No Name Key as an area to be centralized. This is in direct conflict with the unanimous vote by the BOCC and the January 28, 2009 that No Name Key should remain decentralized in accordance with the Monroe County Wastewater Master Plan. The map error described above was corrected. After this correction was made, the BOCC voted to stop the process of the proposed Comprehensive Plan amendment which would have added language to Comprehensive Plan Policy 102.8.5 to allow for centralized wastewater services within CBRS units. b _AR.D OF COUNTY COMMISSION) AGENDA ITEM SUMMARY Meeting Date: June 17, 2009 Bulk Item: Yes X No — DiAsion: Growth Manmement Department: Staff Contact Person/Phone #: Andrew Trivette Ext. #2517 AGENDA ITEM WORDING: Approval of a resolution by the Monroe County Board of County Commissioners confirming the intended wastewater service areas as either centralized or decentralized; and clearly showing non -service areas within Monroe County and the Florida Keys Aqueduct Authority Wastewater jurisdictional areas. ITEM BACKGROUND: The proposed Rule 28-20.130 requires that by July 1, 2009, the County shall identify by resolution the areas of the County that will be served by central sewage facilities and the areas of the County that will not be served by central sewage facilities. PREVIOUS RELEVANT BOCC ACTION: n/a CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATIONS: Approval TOTAL COST: n/a INDIRECT COST: BUDGETED: Yes —No COST TO COUNTY: n/a 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 # Revised 1/09 0 C Lt. _ O CD X m l< N C tD �u CL The Extension of a Commercial Water Supply to No Name Key September 12, 2O09 -- July 223 2010 Cistern Water is Safe To Drink Shortly after Monroe County made certain that No Name Key was once again correctly designated in the Wastewater Master Plan and was being slated for Onsite Wastewater Nutrient Reduction Systems (OWNRS), the No Name Key Property Owners Association changed their direction away from wastewater and towards other utilities. Mr. Robert Reynolds made application from Keys Electric Services for electric service to his house on No Name Key. Brad and Beth Ramsay-Vickrey made application from Florida Keys Aqueduct Authority for a water hook-up to their house on No Name Key. The Vickreys argued their cistern water was unhealthy and making them sick. Please see the attached November 12, 2009 letter from Monroe County Health Department to Florida Keys Aqueduct Authority stating that "It is the position of this department that there are no inherent public health concerns that automatically preclude the use of a rainwater cistern for a source of potable water. In fact, from a historical perspective cisterns have been safely utilized throughout the Keys for a long period of time." Please also see the attached January 30, 2010 Press Release from the American Rainwater Catchments Systems Association in support of the above - mentioned letter from the Florida Health Department. d � 4 CHARLIE GRIST GOVERNOR MONROE COUNTY HEALTH DEPARTMENT ROBERT B. EADIE, JD ADMINISTRATOR Mr. James C. Reynolds Executive Director Florida Keys Aqueduct Authority 1100 Kennedy Dr. Key West, FL 33040 RE: No Name Key Cisterns Dear Mr. Reynolds: 1100 SIMONTON STREET KEY WEST, FLORIDA 33040 November 12, 2009 ANA M. VIAMONTE ROS, MD, MPH STATE SURGEON GENERAL ECEIVED NOV 13 2009 TEL:305-809-5610 FAX:305.809-5619 EJXECLMVE t)ERARTMENT This letter is written in response to the inquiry as to whether the use of rainwater cisterns as sources of potable water "for residences on No Name Key constitutes an inherent and serious public health threat. Additionally, the question is raised as to whether the Monroe County Health Department will urge the Aqueduct Authority to provide water service to residences that rely on rainwater cisterns for potable water. In order to assure that the most current and best science was available to guide this response, I consulted with the Bureau of Water Programs of the Division of Environmental Health. Following is the guidance received: The Bureau of Water Programs endorses the use of residential rainwater cisterns for non -potable or potable water uses in residences where they are properly installed and maintained. If available, piped potable water from a public system or a private well is the preferred source of water for residential water systems due to the continuous testing of public water systems and wells that tap a less dynamic source of freshwater. However, recognizing that many areas of Florida do not have access to preferred sources, the Florida Plumbing Code (Section 602.3.1) allows for the use of rainwater cisterns as water sources for structures. The utilization of cisterns for potable use requires treatment to prevent water contamination from microbiological pathogens and chemical contaminants. Adequate treatment and system construction with food -grade materials has successfully produced safe drinking water in remote areas of Florida, the U.S., and the Caribbean for many years. The Florida Plumbing Code is administered by the Building Department Authority and requires construction based upon sound plumbing and public health principles. After construction and approval, the continued operation and maintenance of a cistern -treatment system is the responsibility of the property owner. The Bureau recommends that the final tap water be analyzed on a regular basis for fecal indicator bacteria such as total coliform and E. coli to validate the effectiveness of the cistern water treatment system. Results of water quality testing can also be used to indicate maintenance requirements. November 6, 2009 Mr. James C. Reynolds Page 2 It is the position of this department that there are no inherent public health concerns that automatically preclude the use of a rainwater cistern for a source of potable water. In fact, from a historical perspective, cisterns have been safely utilized throughout the Keys for a long period of time. Moreover, I am unable to find any recent report of illness caused by drinking water from a cistern. If there are concerns by any one about the safety of his or her drinking water supply, the Monroe County Health Department will test it and provide the results of its analysis. Given the facts at hand, there are no indications of urgent public health threats arising from the use of rainwater cisterns for drinking water by residences on No Name Key. Unless and until there are concerns that such threats may exist, it is not within the purview of the Monroe County Health Department to urge the Aqueduct Authority to provide water service to No Name Key. If there are additional questions or matters the Board Members or you wish to discuss, please contact me. Sincerely, &-r .4 / g� 14/t D , Robert B. Eadie, J Administrator FOR IMMEDIATE RELEASE January 30, 2010 AMERICAN RAINWATER CATCHMENT SYSTEMS ASSOCIATION SUPPORTS FLORIDA DEPARTMENT OF HEALTH REGARDING POTABLE USE OF RAINWATER Following a claim that potable use of rainwater was inherently unsafe in an attempt to force the Florida Keys Aqueduct Authority to provide potable water service to the off - grid island of Name Key in the Florida Keys, the Florida Department of Health declared that "It is the position of this department that there are no inherent public health concerns that automatically preclude the use of a rainwater cistern for a source of potable water." The American Rainwater Catchment Systems Association (www.aresa.org) — a 501(c)3 not -for -profit whose mission is to promote the harvesting of rainwater to help solve potable, non -potable, stormwater and energy issues -- concurred with the Florida Department of Health and has reinforced the FDOH position with the attached letter. "A properly designed and maintained rainwater harvesting system will provide safe, potable drinking water that exceeds the requirements of the Environmental Protection Agency. There are many thousands of people in the U.S. who currently use this viable and sustainable source as their only (and often preferred) source of water. For further information, contact John Hammerstrom, Director American Rainwater Catchment Systems Association (305)852-8722 John. ham merstrorn�ic aresa.org , " I, lam"..'.ANY'_ "' ;-Aq .. apu� dye. .nya J...an.,way.e -.a .�.*4 - are.. m�,+asr.wew -� � .m n, . . ,:ram.. _.r.. .�.... ,.,. The Extension of a Commercial Water Supply to No Name Ke,.y September 12, 2009 — MY 22, 2010 FKAA Rule Change — Elimination of Rule Chapter 48-206 Despite evidence to the contrary from: 1.) Florida Department of Health 2.) American Rainwater Catchment System 3.) Environmental Protection Agency And, opposition from: 1.) U.S. Department of Interior 2.) Florida Department of Community Affairs 3.) Monroe County Board of County Commissioners 4.) Seven Keys -wide environmental and green organizations 5.) Two attorneys for affected residents 6.) Members of the public n July 22, 2010 the FKAA Board of Directors (by 3-2) voted to eliminated the 27-year old prohibition against water hookups on No Name Key and other protected areas within the National Refuge System in the Florida Keys. There was no Justification to support the Rule change. If FKAA water were to be extended to No Name Key or other areas within the Coastal Barrier Resources System in the Keys, a minimum of six (6) policies in the Year 2010 Comprehensive Land Use Plan would need to be amended. These Comp Plan policies are listed in a previous Section of this document. Please see the attached July 22, 2010 letter of opposition from Monroe County. Please also see the attach July 16, 2010 letter of opposition from the DCA. Please also see the attached July 22, 2010 letter of opposition from The Solar Community of No Name Key. (2) C UNTY So�MONROE KEYWESTLORIDA 33040 (305)294-4641 Suzanne A. Hutton, County Attorney** Robert B. Shillinger, Chief Assistant County Attorney ** Pedro J. Mercado, Assistant County Attorney * * Susan M. Grimsley, Assistant County Attorney ** Natileene W. Cassel, Assistant County Attorney Cynthia L. Hall, Assistant County Attorney Christine Limbert-Barrows, Assistant County Attorney Derek V. Howard, Assistant County Attorney Lisa Granger, Assistant County Attorney ** Board Certified in City, County & Local Govt. Law Jim Reynolds, Executive Director Florida Keys Aqueduct Authority 1100 Kennedy Drive Key West, Fl. 33040 RE: Environmental Rules Dear Mr. Reynolds: July 22, 2010 via email BOARD OF COUNTY COMMISSIONERS Mayor Sylvia 3. Murphy, District 5 Mayor Pro Tern Heather t:aniAhers, District 3 Kim Wigington, District t George Neugent, District 2 Mario Di Gennaro, District 4 Office of the County Attorney 1111 12tn Street, Suite 408 Key West, FL 33040 (305) 292-3470 — Phone (305) 292-3516 — Fax Please be advised that at the Board of County Commissioners meeting yesterday, the Commission voted to send to the FKAA a letter stating their opposition to the repeal of Aqueduct Rules 48.206.001-.004, which is scheduled for hearing this morning. Let me know if you have any questions regarding the Commission action. Sincerely, Su nne A. Hutton County Attorney cc: County Commissioners County Administrator Growth Mgt. Div. Director 0 STATE OF • DEPARTMENT OF COMMUNITY AFFAIRS "Dedicated to making Florida a better place to call home" CHARLIE CRIST Governor July 16, 2010 Florida Keys Aqueduct Authority Post Office Box 1239 1100 Kennedy Drive Key West, Florida 33041-1239 Re: Chapter 48-206 Florida Administrative Code, National Wildlife Refuge Area Rules Dear Chairman David Ritz and Fellow FKAA Board Members: THOMAS G. PELHAM Secretary The Department of Community Affairs is writing to provide Agency comments to be considered by the Florida Keys Aqueduct Authority (FKAA) with respect to proposed rulemaking to repeal Chapter 48-206, Florida Administrative Code. The Florida Keys were originally designated an Area of Critical State Concern (ACSC) by the Administration Commission in 1975 and redesignated by the Legislature in 1986. See § 380.0552, Fla. Stat. Both the Legislative Intent section and the Principles for Guiding Development codified in Section 380.0552, Florida Statues, require an effective land use management system that protects the natural environment and character of the Keys, maintains acceptable water quality conditions, provides affordable housing, and requires adequate emergency and post -disaster planning to ensure public safety. State, regional and local agencies, and units of government, such as FKAA, are required to coordinate their programs and regulation activities consistent with the Principles of guiding development §380.0552(7), Fla. Stat. The Department is the state land planning agency with the power and duty to exercise general supervision of the administration and enforcement of the ACSC program, and to approve or reject comprehensive plan and land development regulations adopted by local governments within an ACSC. The Department's concern is that FKAA's proposed repeal of Chapter 48-206, Florida Administrative Code, relating to the long standing prohibition of the provision of public utility services for properties located within a National Wildlife Refuge Area, may be inconsistent with the Legislative Intent, Principles for Guiding Development and the Monroe County Comprehensive Plan and Land Development Regulations. See § 380.0552(2)(7), Fla. Stat. 2555 SHUMARD OAK BOULEVARD ♦ TALLAHASSEE, FL 32399-2100 850-488-8466 (p) • 850-921-0781 (f) ♦ Website: www.dca.state.fl,us • COMMUNITY PLANNING 850488-2356 (p) 850488-3309 (fl • FLORIDA COMMUNITIES TRUST 850.922.2207 (p) 850.921-1747 (t) • HOUSING AND COMMUNITY DEVELOPMENT 850-48&7956 (P) 850.922-5623 (f) David Ritz, Chairman Florida Keys Aqueduct Authority July 16, 2010 Page 2 Currently, Rules 48-206.002, and 48-206.003, Florida Administrative Code, prohibit the FKAA from providing water connections or hookups to specified areas within the boundaries of the Crocodile National Wildlife Refuge, the Key Deer National Wildlife Refuge and specifically identified Hardwood Hammock Lands. The FKAA Rules were adopted as a result of mandatory requirements of federal agencies having jurisdiction over National Wildlife Refuge areas and pursuant to federal laws to enforce the Endangered Species Act of 1973, the National Environmental Policy Act, and Executive Order Nos. 11988 and 11990 as identified in Rule 48- 206.001, Florida Administrative Code. For illustration purposes, the Department has attached GIS Maps with red lines depicting lands within the National Wildlife Refuge areas and the Hardwood Hammock Lands individually identified by Rule that are intended to provide habitat protection to endangered and threatened species consistent with both federal and state law including the Habitat Conservation Plan for Big Pine and No Name Keys. FKAA's proposed repeal of Chapter 48-206, Florida Administrative Code appears to be inconsistent with the following provisions of the Monroe County Comprehensive Plan and Land Development Regulations with respect to water connections and hookups by FKAA and other utility providers in National Wildlife Refuge areas and Hardwood Hammock Lands: Policy 103.2.5 states: Monroe County shall monitor FKAA compliance with federal regulations prohibiting potable water hookups to designated habitat areas of the American crocodile, the Key Largo wood rat, the Key Largo cotton mouse, and the Schaus swallowtail butterfly (pursuant to FKAA Rules Chapter 48-7). [9J-5.012(3)(c)1; 9J-5.013(2)(c)5 and 61 Policy 207.6.5 states: Monroe County shall continue to monitor water connections and hookups by the FKAA to confirm compliance with mandatory requirements of the FWS. These FWS requirements prohibit water connections or hookups within National Wildlife Refuge areas or hardwood hammock areas within its jurisdiction. [9J-5.012(3)(c)l; 9J-5.013(2)(c)5 and 6] Policy 701.10.5 states: The FKAA shall continue its policy of not providing for water connection services in National Wildlife Refuge areas or hardwood hammock areas within its jurisdiction as specified in FKAA's enabling legislation and the FKAA Policy and Procedure Handbook, Chapter 48-7. [9J- 5.011(2)(c)1 ] David Ritz, Chairman Florida Keys Aqueduct Authority July 16, 2010 Page 3 Policy 102.8.5 states: Monroe County shall initiate efforts to discourage the extension of facilities and services by the Florida Keys Aqueduct Authority and private providers of electricity and telephone service to CBRS units. These efforts shall include providing each of the utility providers with: 1. a map of the areas of Monroe County which are included in the CBRS units; 2. a copy of the Executive Summary in Report to Congress: Coastal Barrier Resources System published by the U.S. Department of the Interior, Coastal Barriers Study Group, which specifies restrictions to federally subsidized development in CBRS units; 3. Monroe County policies regarding local efforts to discourage both private and public investment in CBRS units. In addition to the County's comprehensive plan language intended to discourage the extension of utilities to and investment in CBRS units, Monroe County's Land Development Code, Section 130-122, provides: Sec. 130-122. Coastal barrier resources system overlay district. (a) Purpose. The purpose of the coastal barrier resources system overlay district is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to or through lands designated as a unit of the coastal barrier resources system. (b) Application. The coastal barrier resources system overlay district shall be overlaid on all areas, except for Stock Island, within federally designated boundaries of a coastal barrier resources system unit on current flood insurance rate maps approved by the Federal Emergency Management Agency, which are hereby adopted by reference and declared part of this chapter. Within this overlay district, the transmission and/or collection lines of the following types of public utilities shall be prohibited from extension or expansion: central wastewater treatment collection systems; potable water; electricity, and telephone and cable. This prohibition shall not preclude the maintenance and upgrading of existing public utilities in place on the effective date of the ordinance from which this section is derived and shall not apply to wastewater nutrient reduction cluster systems. The Department respectively requests that the FKAA carefully consider the above identified inconsistencies with the referenced sections of the Monroe County Comprehensive Plan and Land Development Regulations and the potential impact associated with the environmental and land use protections long established for an Area of Critical State Concern found in Section 380.0552, Florida Statue, before you make a decision to amend or repeal Chapter 48-206 relating to Water Connections in Wildlife Refuge areas. David Ritz, Chairman Florida Keys Aqueduct Authority July 16, 2010 Page 4 In conclusion, the Department is willing to provide technical assistance and written comment in future FKAA rule development workshop proceeding and requests inclusion in the notice list of affected persons to ensure receipt of all upcoming Rule notices and related publications. Thank you for your attention to this matter, please contact Ms. Barbara Powell at 850 922-1782 if you have any questions regarding the Department's concerns. Sincerely yours, Charles Gauthier, AICP Director, Division of Community Planning CG\res cc: Rebecca Jetton Barbara Powell The Solar Community of No Name Key 1934 No Name Drive No Name Key, �Florida �3304- - - - - - - - J 22, 2010 FKAA Board f Directors Meeting Marathon, Florida Dear Chair Ritz and Fellow FKAA Board Members: Below is a summary of the public input to date regarding the elimination of Rule Chapter 48-206. In Onn0 ition to the Rule Change: United States Fish and Wildlife Service, Vero Beach, Florida Florida Department of Community Affairs, Tallahassee, Florida Monroe County, Monroe County, Florida Attorney Caron Balkany, Summerland Key for Residents of Middle Torch and Big Torch Key Everglades Law Center, Richard Grosso Executive Director for Alicia Putney of No Name Key Green Living and Energy Education (GLEE) Florida Keys Citizens Coalition Friends and Volunteers of the Refuges (FAVOR) Key Deer Protection Alliance, Inc. Last Stand The Solar Community of No Name Key, Representing 13 of the 43 Households on No Name Key Upper Keys Citizens Association Members of the General Public — Several individuals who are not included in the above listed groups spoke in opposition to the Rule Change at the June 14, 2010 Public Meeting. -I- In support of the Rule Change: No Name Key Property Ownersl In spite of you being told otherwise, there is no justification for eliminating Rule Chapter 48-2o6. Exploring the possibility of this Rule Change has been a costly mistake that can be ended today. Please vote NO. Thank you. Sincerely, , fi Alicia Roemmele-Putney, President ' As a follow up to being asked about the 30 households that are supposedly on record in favor of FKAA water hook-ups on No Name Key, we now know that this information is not accurate. Evidently, some of these folks have not been asked where they stand on this issue. IM SCNNK — History of Commer Electricity - Packet for New Commi, iers—11/2008 Jule 2,1999 to June 11, 2003 Case No. c -S1 c CA-18 - D2&et infoLmat on 16thJudicial Circuit - Monroe County, Florida Q:Z/02 f 1999 Attorney Franklin Greenman files a Complaint on behalf of Taxpayers for the Electrification of No Name Key, Inc. against Monroe County and City Electric Service, Defendants. • Q911812001 The Honorable Sandra Taylor grants a Motion for Leave to Intervene to Dr. Snell and Alicia Roemmele-Putney. • o2/1612002 The Honorable Richard G. Payne issues an Order Granting Summary Judgment in favor of the Defendants. • 0811912002 Plaintiffs file a new case with the Third District Court of Appeals, Case No. 3Do2-2176. • 46/11/2003 The Honorable Richard G. Payne issues an Amended Order Granting Summary Judgment in favor of the Defendants, dismissing the Complaint with prejudice. • 06126120Q3 Attorney Keith Hope, on behalf of Taxpayers for the Electrification of No Name Key, Inc. request that Case No. 3Do2-2176 be V-6-1untarily Dismiss. 3112108 4:58 liviumoet ounty Kecoras octail I'ttP:I"www.clerk-Of-tbP-'(-)tirl.ct)ir)Jdctaj]Civii('ases,,-isp?ca.se-key=�)o'z CITY ELECTRIC SERVICE, Docket Information Date Description 51200� RECEIPT ACKNOLEDGING RECEIVING ORIGINAL RECORD AND EXHIBITS FROM DISTRICT COURT OF APPEAL <: ORDEREll RDER i3RD DCA DISMIISSAL)I8971, 1426 OR 19 3 PG 1090 616'2003 AGREED MOTION TO VACATE AMENDED ORDER GRANTING SUMNI)AR), JUFj(jMEN T A.No FOR ENTRY OF FINAL SUMMARY JUDGMENT SUBMITTED BY PLAINTIFFS 6 11 3f-2 0 0 3 FINAI ;(.J1IV1I`v1ARY JUDGIMIENT 6/ 1 "312003 ORDER VACATING AMENDED ORDER GRANTING SUPvIMARYJUDGI`,.1EN-J BOOK 1898 PAGE 1120 61/12,/2003 AMENDED ORDER GRANTING SUMMARY JUDGMENT f-P30/2003 C)RDPR I'-PON4 THIRD DIS T'RIC i COUR! OF APPEAL (RFI. 2 0' A y S �: /1. 1 . - ) M A T E 0'r' 0 R D EIR M A Y 2 8. 2 C-) 03, 1 /121:)002) VOLUNTARY DISMISSAL WI­THOU'I PREJUDICE 1 1 /4/2002 RECORD ON APPEAL MAILED TO 3R[--) Df.-,/-\ -THREE VOL.I.)NIFS 91;,20/2002 !Nf-)PX PREPARED %,11AIl !11- TO ATTvjs 9/10/200-2 DESIGNA T ION 10 REPORTS R 91/2002 AC'KNOWLEDG)EMEN! 01F NEkN CASE I-ROMI THE THIRD DISTRICT COURT - CASE# 3D02-2176 8r 12,,2 0 0 2 PAY.MEN] ACCEPTED 1211 6 8/12112002 Receivable Assessed 8,1212002 NOT OF APF,'OR. PG CIRCUIT ONLY 7116!20 02 JL 0GFTNSP(-)sF'D AFTFF31 ' IDGMENI-IDFGISfoN C,,7,ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF IDE'PENDANIVS T'l 120022 ORDER VACATING ORDER APPROVING REPOPT OF SPECIAL MASI OR 1796 PG 1395 6,+2612002 REPO RI AND RECOMMENDA 1-1()N OF SPECIAI-1.11ASTER 6/26/2002 ORDER APPROVING REPORT OF SPECIAL MASTER 6/25/2002 NOTICE OF UNAVAILABILITY 61251'2002 NOTICE OF CHANGE OF ADDRESS 611 -'J1 0 0 2 NOTICE OF HEARING <071!0,1,2002> 10:00 A fv1 6/12/2002 ORDER 6/ 1012002 ORDER SETTING CAUSE FOR NJ TRIAL <12120i2002-, 900 A M, 6/ 10/2002 1NTERVFN0P PI_ITNFY�, EXCEPTIONS TO P17.PORT AND Rr-,c 6/712002 MONROE COUINTY'S EXCEPTIONS TO REPORT AND RECOMMENDATION OF SPECIAL MAST ER of 5 3/12/08 4:58 PM ly'011"Oe (- 01111ty Records I)etail htlP-'fi\vxvw,cferk-of-,' --,-ottri,corn/detailCivil('ases.,tsp'?case—keyz:90 of 's 5/31/2002 DEFENDANT MONROE COUNTY AND INTERVENORS' JOINT POST -HEARING M'FMORANDflM OF LAW 0212002 NO-E CF HF-ARIN(--,' <06/03/21002-4.15 P,Nl 5/24/2002 JOINT MOTION TO CONTINUE TRIAL DATE E 5122/2002 COURT MINUTES <65/22,2002-, 2,,2 0 (12 AVIENIORAN)!.A! 1NI QPP�;'SITION TO S,'-JlP,.lMAf',,'i/ JUDGMIENT 5,20/2002 NOTICE. OF FILING, INTERVENORS FIRST REQUEST FOR ADIATSUN6 5=20(4 NO&CF OF FILING -AFFD OF DAVID P [--AKi----N rt 1, 6/20 - 'l, 02 NOT!(-',L-- OF FILING 50 T2N2 NC)'; WE OF FT ING THE DPOSITION OF DALF.- FINIGAN 50 5QN2 NOTCE OF FLING EXCERPT' OF THE DEPOSITION OF IM't\/I(',(;ARRY 5M T2002 NOTICE OF FLING DEPOSITION OF MARK ROSCH IiN-f i'\,i*"(,)-,'it_ )N FC),,-:,) SUMfv'.A,-,'Y Jt jDGME-AT 50 X2W2 NC DCE OF FILING. PLTF SCZEK RESPONSE 10 REQUEST FOR ADtvIlISSIC)NS, SA3,rAW2 NOTICIn OF FING, ATF SWEK RESPONSE 1­0 REQUEST W? ADMISSION,'-; 'Gkl N AF-FiLWVIT OF A[JCIA ROE MP. Pl !TN[---Y ,5/2,2002 MONROE GOI JNTY'S MO LION FOR S'UMMARYJI,jDGMENT STOW NO WE OF HEARING � 0.5,'22i200,l P 00 A M, 4121 6,,2 0 0 2 NOTICE OF HEARING 105225002> 9 00 Al"O ORDER-C.)F REFFRRA!- I ci PE(,fA! MA,S)TERORDFIR FETING PETITION MOTION FOR HEARING 3/26;2002 NOTICE OF FILING :92&2002 WDUE 04 PH jNG 3! 2 f) /2 0 0,", NC)l 1CF- OF f ILING 212UNO PI AINTIFFS'RESPONSE I (.) IN! ERVEAORIS FIRST REQLJF',`)I FOR ADMISSION,---,' 2/612002 MONROF COUNTrS MODON TO CONONUE TRAL OR RECXTST FOR SUMMARY,h FIX, I I ri�:A'RiNG PRIOR -10 1 ��IAL NINON REAO rfCE-,0F HEARING (06i'17i2002) 1 00 P M 1092002 ORDER SETONG CAUSE FOR NON JURY TRAU 06AW2002 9 00 A Nm 12 1 8i2002 AvIONROF COUNTY'S NO&CE OF FILING DISCOlv!cl_Ry IN SI-)PPOPT,,')F- FUR.' SMIMARYJUDGMENT 1N812N2 MONROE COUNTY'S MOTION FOR SUMMARY JUDGMENT i/iW2002 AMENDED NOICE OF TARNG DEPO�'----ITION (Kf,,RPN K GARAN,",vS L) 00 A M V 1012002 NOT!(-F-'OF TAKING DE -PO - DALE FINIGAN 121?112001 tftt WFE-RAL PRE-TRIAL S rATFMEN T 301258 408 PM Moll"oe County Records Detail l'ttp:/Avwwxlerk--of--' v(-)Ilrt.coyWde.tiii(-'ivil('ases.,tsp'?cii-se—key=�))' 1:2",:2022001 PLAINTIEFSVEZEK RESPONSE TO INTERVENORS—iRS-1 REQUESJ ADMISSIONS m'22200-j MOT iON FOR EXTENSION OF TIME TO RESPOND TO FIRS ` REi-JUE ST F ADKIIIISSIONS TO PLAINTIFFS IWIQNI ORDER SETTING CAUSE FOR NON JURY TRA" 0249QW2 910 A 141 I i0);'I '2001 PRETRIAL 'HEARING <02104,20021- 2 30 P NI POWTV1 nRDER GRAWIW; MOPON TO UTERKNE 9qTOM MEMORANDUM IN OPF-'OSiT!(--),'J TO lNTjL-RVF1',,,'f IC)N 1151001 COURT NIINUTES N09=160 w 3 /,3 1 �? () 0 1 DE-F-E-NDANI'S RESPONSE TO kl()FION F--(:-Rt-EAVI--- FO !Nli ERVENE 6020M NOTICE HI�-,ARING <09�'05.2001 --. 10 30 A'r,,;i 6?5;'2001 iJOTION OF DR SNELL PUTINEY AND AL 0A ROEMfvlE!.-F---PUT` F.-'Y FOR LEAVE TO INTERVENE 65NOT)l N&MORANIM.W IN 'SUIPPOI-NT IV - 3062MI REPOR " OF COURT ORDFIRED MEDIATION 2001 NOTICE OF MEDIATON CONFERENCE DATE OIL= AT 10 W jvU i 1112001 P&DTICE OF TAKING REPO (RM MCGARRY) 1,. 12/2001 COLI F,T P, I I N T E S < 0 1 2:2 010 I 1:'2Nl ORDER -1/9,'2001 UNOPPOSFD MOTION TO(-'ONTINUF 'l R'IAL DA TE i I �31-!RPOI`-NA RETURNEO SERVED MCGAlZIRR''' INQ001 SUBPEONA FOR DEPOSITION RETURNED klCGARR)' 11281000 NOTICE OF TAMNG DFPO --[ I" �-LECTRIC S'y ",,TEPl 10281000 NO FI OF 7ANNG DFPO - MAb< ROSO-i 15281000 NC910E OF TANNG DEPO. &M NKMARRY I 222,!2 00PRFTRIAL ST)PI R-A-f ION 11225000 DEFENDANT-S) (jTK-TTY BOARD OF.THP CHIN f-IF CBA Ei EC7*R!(, SYSTEM S`v'VI LIS 1517QOOO NL4 ICE UF SERVICE OF ANSWERS TO Pi A FIRST SET OF 10,,16,2000 OF SERVICE OF ANSWERT�'D PI. -A FIRST SF-i'OF 91W2000 ORDER SETTING CAUSE FOR NON WRY TRIAL 02i08,.-200 1 10 30 A Ivi UNO PREIRIAL HEARNG <0v"Q0M> 1010 A M. 8i2000 ORDER DIRECTING MEDIA ION 911 TWO PLhNTfFFS INTERROGATORIES TO DEFENDANT r,.4ONROE COUN-ly 8092NO DFMAi (3)F A-iLIFIRMATWE DEFt-NSf:1,S. 8QN2000 DE MAI, OF AFF-!RPOA TIVE DEFENSES &'21312000 NOTICE OF-- READY FOR TRIAt, of 5 30[258 408 PM - - -- - - - - ... 1 ­111­0 L"4Wll f 5 8/21,2000 ORDER -GRANTED 20 DAYS 10 RETAIN NEW COUNSEL 8/15/2000 F) A i,j CtAr�- 11 �� T,� _r­��-,� j i \j I Lpcw (-)I­-,IF,: ANSWPR-N,10NR0E COUNTY 7/25/2000 ORDER DENYING DPNT- MONROE COUNTY'S M I'N TO DISMISS -T 712012000 PLAINTIFFS KAMM ANSVNERS T(: ) IN . E_RRO C -1:20,00 NOTICE--,,-,, !-ILINGANSOVER TCINTFRRC)(-A!()R!F-.Sr-3yT-t-.lE-,"RitGFAMILY NOJIC! of-' Fl! ING ANSWERS TO iNTERROGATORIE,9 BYEDIAIARD RFGA 7119i2000 NOT +CE OF FILING ANSVkA.-RS TO IN TERROGA VORIES By 0ARY) G.MI! IFR 111 if-fl-INNIG !A%Nlt,�IAiri 1i y H' ANE AKE_N U H E F 71l 2,2000 PLAIN 11FFS , SICZEK.ANSVVE-,RS TO 1NTERROGATORIf_ S 711212000 Nr)TWJ-_ OF FILING AN,!�AAJURS TO INT F_RFZC)G3A­Tn IF tj R COMPLAIN I b 5 T MINUTES <05/01/2000> / 112000 COUR 1 412�/2000 C)RDER ON STIPULATION FOR SUBS] ITUTION OF PARTY NAMF--F, jt- A f �,'. A N1, f 'S V8/2000 NO T1I(_J Of- HEAR! NG 05)/U 1!2()00 00 A M 214/2000 NOTICE Of-- SERVICE OF DFN V V_IRSTSF-1_ OF INTERROGA f0mFS 1. 1 (31 . 1) 0".i N ( Yl I,'-; A R.! N (J 0, el:) f 8,'30:1999 N1 () N P 0 E C L) N T Y'S P;j 0 T 1(_JN TO D I S M I S S, 1 12/ 1999 "3t i M M 0 NS 'MONROE COUNTY RT 8/19/99 SV 8/9/99 'V,; 0 i A T N 0 r-- C 0 N t I f (-IT 10 N Ai - R I G T S NL A Copyright 0 2001 Monroe County Clerk of the Circuit Court. All rights reserved, Disclaimer ._�— 3/12/08 4:58 PM SCNNK - History of Comm, Electricity - Packet for New Coma Hers -1 ] /2008 April 1g, 2001 Board of County Commissioners Meeting — Minutes Ivey West, Florida Denial of a ProposedSettlement Agreement for Taxpayers for the Electrification of No Name Ivey, Inc., Commissioners: Spehar, McCoy, Neugent, Williams & Nelson Roll call vote was unanimous. issues that cieayy caused contusion today... Roll call vote was unanimous, with Commissioner Nelson not present MINUTES OF THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS Regular Meeting Board of County Commissioners Thursday, April 19, 2001 Key West, Florida 2001/127 A Regular Meeting of the Monroe County Board of County Commissioners convened at 9:00 AM., on the above date at the Harvey Government Center at Historic Truman School. Present and answering to roll call were Commissioner Charles "Sonny" McCoy, Commissioner Murray Nelson, Commissioner Dixie Spehar, Commissioner Nora Williams, and Mayor George Neugent. Also present were James Roberts, County Administrator; Karen Cabanas, Assistant County Attorney; Danny L. Kolhage, Clerk; Isabel C. DeSantis, Deputy Clerk; County Staff, members of the press and radio; and the general public. All stood for the invocation and Pledge of Allegiance. ADDITIONS, CORRECTIONS, DELETIONS Motion was made by Commissioner Williams and seconded by Commissioner Spehar granting approval of Additions, Corrections, and Deletions to the Agenda. Motion carried unanimously. BULK APPROVALS Motion was made by Commissioner Williams and seconded by Commissioner Spehar granting approval of the following items: Board granted approval for the transfer of three buildable lots from Richard Klepper to Monroe County by Warranty Deeds, Permit Number 99-1-2430, described as Lots 2 & 3, Block L, Pine Heights Subdivision, Big Pine Key, and Permit Number 99-1-2430, described as Lot 5, Block 12, Eden Pines Colony, Big Pine Key. The applicant receiving a dwelling unit allocation award for the year ending July 13, 2001, has filed the document in accordance with Ordinance No. 47-1999. Board granted approval for the transfer of two buildable lots from Dean G. & Lauren L. Thompson and Edward & Petra M. Sanchez to Monroe County by Warranty Deeds, Permit Number 00-1-3921, described as Lot 6, Block 22, Port Pine Heights 2nd Addition, Big Pine Key, and Permit Number 00-1-2882, described as Lot 4, Block 5, Cutthroat Harbor Estates, Cudjoe Key. The applicants receiving dwelling unit allocation awards for the year ending July 13, 2001, have filed the documents in accordance with Ordinance No. 47-1999. 04/19101 DIVISION OF GROWTH MANAGEMENT 2001i133 Kasen Cabanas, Assistant County Attorney discussed with the Board approval of a proposed settlement agreement for Taxpayers for the Electrification of No Name Key, Inc., et. al. v. Monroe County and City Electric System, Case No. 99-819-CA- IS (Fla. 16th Cir. Ct. ), allowing for the extension of commercial electric service to the existing lawfully constructed homes on No Nance Key. The following individuals addressed the Board: Franklin D. Greenman, Attorney for Taxpayers for Electrification of No Name .Key; Mick Putney, Alicia Putney, Jeannette Gato, representing No Name Key Residents Against Commercial Power; Cory Lindy, J. A. Wemsen, Rob Barber, Jane Sprenger Wallace, Kirk Wiederecht, Harry Wallis, David Eaken, Daryl Miller, and Ruth Eaken, representing Taxpayers for Electrification of No Name Key; Petroneila Benton, Bob Banton, Attorney Richard Grosso, representing Dr. Snell and Alicia Putney; Lenore Lohr, John F. Lohr, Frank Atwell, Karen Jeannettt-Druckman, Tonig Harlacher, Elizabeth Harlacher, Stu Garrison, Faye T. Daniels, Walter Keske, Rebecca Jetton, representing the Department of Community Affairs; and Larry Sullivan, representing the Big Pine Key Civic Association. der discussion, motion was made by Commissioner Williams and seconded by Commissioner Spehar to reject the proposed settlement agreement. Roll call vote was unanimous. Commissioner Nelsen excused himself from the meeting. Motion was made by Commissioner Spehar and seconded by Commissioner Williams directing Staff to bring back to the Board for approval the creation of a zoning overlay district designation of off -grid encompassing all properties within the boundaries of No Name Key; and also, to address or change the other issues that clearly caused confusion today. Ms. Cabanas addressed the Board. Roll call vote was unanimous, with Commissioner Nelson not present. Commissioner Nelson returned to the meeting;. Motion was made by Mayor Neugent and seconded by Commissioner Spehar granting approval of the proposed settlement agreement for Max D. Puyanic, as Trustee for Trust No. 201 v. Monroe County and Joseph Paskalik, Case No. CAP-00-601 (Fla. 16th Cir. Ct.), allowing the issuance of building permits to Plaintiff for the Tavernier Town Shopping Center upon payment of fees buy Plaintiff. Roll call vote was unanimous. COUNTY ADMINISTRATOR The Board discussed Representative Sorensen's letter concerning an invitation to attend a meeting in Tallahassee to discuss a stra`iegy for the use of pending federal wastewater and stormwater fiends. The Board took no official action. SOUNDING BOARD Jeff Delisle, representing the International Association of Firefighters addressed the Board concerning issues relating to the fire service which have a direct bearing on the restructuring of SCNNK — History of Commer Electricity - Packet for New CommiF iers—11/2008 December 19, 2001 Monroe County Ordinance No. 043-2001 Creates Article VII, Section 9.5-258 Coastal Barrier Resources System Overlay District • Ordinance No 04 2001 was adopted on December i a- tool creating a "Coastal. Barrier Resources System Overlay District to implernent the poliojes of the carnprehehsive Pnlan by prohibiting the extension and expansion of specific types of public utilities to or through lands designated as a unit of the Coastal Barrier Resources System. • For ease of reference, the Minutes of the two publicly noticed hearings' before the BOCC are included in this section, along with the three -page Ordinance 043-2001. • Recall, Monroe Cauntu's xrolicies and regulations reaardina CBRS units within Monroe County are separate and dtstinet from the federal government's policies and regulations. . And that the Country's unwaver%na position, that the extension of an infrastructure to No Name Key would be a clear violation of the overall intent of the Year 2010 Plan and Florida Statues, is not narrowly based County- MONROE COUNTY CODE CHAPTER 9.5 LAND DEVELOPMENT REGULATIONS ARTICLE V11. LAND USE DISTRICTS Sec. 9.5-258. Coastal barrier resources system overlay district. (a) Purpose: The purpose of the Coastal Barrier Resources System Overlay District is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to or through lands designated as a unit of the Coastal Barrier Resources System. (b) Application: The Coastal Barrier Resources System Overlay District shall be overlaid on all areas, except for Stock Island, within federally designated boundaries of a Coastal Barrier Resources System Unit on current flood insurance rate maps approved by the Federal Emergency Management Agency, which are hereby adopted by reference and declared part of this chapter. Within this overlay district, the transmission and/or collection lines of the following types of public utilities shall be prohibited from extension or expansion: Central wastewater treatment collection systems; potable water, electricity, and telephone and cable. This prohibition shall not preclude the maintenance and upgrading of existing public utilities in place on the effective date of this section and shall not apply to wastewater nutrient reduction cluster systems. (Ord. No. 43-2001, § 1) MINUTES OF THE MONROE COUNTY BOARD OF COUNTY 4C'OMMISSIONERS Regular/Organizational Meeting Board of County Commissioners Tuesday, November 20, 2001 Key Largo, Florida 2001/330 A Regular/Organizational Meeting of the Monroe County Board of County Commissioners convened at 10:00 A.M., on the above date in the Key Largo Library. Present and answering to roll call were Commissioner Charles "Sonny" McCoy, Commissioner Murray Nelson, Commissioner Dixie Spehar, Commissioner Nora Williams, and Mayor George Neugent. Also present were Danny L. Kolhage, Clerk; Isabel C. DeSantis, Deputy Clerk; .fames L. Roberts, Comity Administrator; ,lames 1'. Hendrick, County Attorney; County Staff, members of the press and radio; and the general public. All stood for the Invocation and Pledge of Allegiance. ORGANIZATIONAL MEETING The Board proceeded to the selection or' Mayor aiid Mayor Pro 1'em of the Commission. Commissioner Williams nominated Mayor Neugetit as Mayor. Commissioner Nelson nominated Commissioner McCoy as Mayor. 'There being no other nominations, motion was made by Commissioner Williams and seconded by Commissioner Nelson to close nominations. Motion carried unanimously. Roll call vote was unanimous selecting Commissioner McCoy as Mayor of Monroe County. Motion was made by Mayor McCoy and seconded by Commissioner Williams nominating Commissioner Spehar as Mayor Pro Tern of Monroe County. Motion carried unanimously. Motion was made by Commissioner Williams and seconded by Commissioner Nelson to adopt the following Resolution electing the Mayor and Mayor Pro Tern for the Board of County Commissioners for 2001-2002. Motion carried unanimously. RESOLUTION NO, 430-2001 Said Resolution is incorporated herein by reference. Motion was rnade by Commissioner Spehar and seconded by Commissioner Nelson to adopt the following Resolution authorizing the Mayor and Clerk of the Board to sign all warrants, legal documents and any other necessary papers and documents; and stating that the presently authorized signatures validating County checks are hereby continued for sixty days from this date in order to meet payroll and other necessary obligations. Roll call vote was unanimous. 11/20/01 2001 /349 reconfirming entitlement to update cost proposals, finding potential diminution or loss of funding, and providing an effective date. State .Representative Ken Sorenson addressed the Board. No official action was taken by the Board. COMMISSIONERS' ITEMS Motion was made by Commissioner Williams and seconded by Commissioner Spehar granting approval of a request for heating on the proposed Monroe County Rule Changes from the State on November 28, 2001. Motion carried unanimously. PUBLIC HEARING A Public Hearing was held to consider a Budget Amendment to the Key West Airport Fund #404. There was no public input. Motion was made by Commissioner Spehar and seconded by Commissioner Nelson to adopt the following Resolution. Motion carried unanimously. RESOLUTION NO.469-'2001 Said Resolution is incorporated herein by reference. A Public Hearing was held to consideration adoption of an Ordinance approving the request by the Upper Keys Sailing Club, Inc. to amend the Land Use District (Zoning) Map from Improved Subdivision (IS) to Park and Refuge (PR) for properties described as Lot 6, Block 2, less the South 80 feet; and Lots 7 and 8, Block 2, and part of the road (aka Point Pleasant Drive) located between Lots 6 and 7, less the Southerly 80 feet of Lot 6; all being a part of the amended Plat of Point Pleasant, Key Largo, located in Section 29, Township 61 South, Range 39 East, at approximately mite marker 99.5. Motion was made by Commissioner Nelson and seconded by Commissioner Neugent to adopt the following Ordinance. Motion carried unanimously. ORDINANCE NO.041-2001 Said Ordinance is incorporated herein by reference. The first of two Public Hearings were held concerning adoption of an Ordinance amending the Monroe County Code by adding Section 9.5-258; to establish a new Land Use Overlay District that will prohibit the extension or expansion of public utilities to units of the Coastal Barrier Resources System; Providing for the Severability; Providing for the repeal of all Ordinances inconsistent herewith; Providing for incorporation into the Monroe County Code; and directing the CIerk of the Board to forward a certified copy of this Ordinance to the Florida Department of Community Affairs and Providing an effective date. There was no public input. (The date of the second Public Hearing is scheduled for December 19, 2001 in Marathon, Florida). A Public Hearing was held to consider a DCA Transmittal Resolution on the request by Howard and Lynda Kolbenheyer and Dancing Bear Properties, LLP to amend the Future Land Use Map (FLUM) from Residential Medium ((RM) to Mixed Ilse/Commercial QVI') and to MINUTES OF THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS Regular Meeting Board of County Commissioners Wednesday, December 19, 2001 Marathon, Florida 201011356 A Regular Meeting of the Monroe County Board of County Conirnissioners convened at 10-100 A.M., on the above date in the Marathon Government Center. Present and answering to roll call were Mayor Charles "Sonny" McCoy, Commissioner Murray Nelson, Commissioner George Neugent, Commissioner Dixie Spehar and Commissioner Nora Williams. Also present were Danny L. Kolhage, Clerk- Isabel C. DeSantis, Deputy Clerk- James L, Roberts., County Administrator-, James T. Hendrick, County Attorney-, County Staff, member--, of the press and radio., and the general public. All stood for the Invocation and Pledge of Ailegiance. ADDITIONS, CORRECTIONS, DELETIONS Motion,was made by Commssioner Spehar and seconded by Commissioner Neugent granting approval of the additions, corrections and deletions to the Agenda. Motion car -lied unanimously. PRESENTATION OF AWARDS Presentation of recognition of C ommissioner Neugent's outstanding to the citizens of Monroe County as Mayor. Presentation of an award to the Guidance Clinic of the Middle Keys by the Board of County Commissioners and the Florida Keys Council for People with Disabilities (FKCF-PWD) Chairman Charles Ingraham. 'this award recognizes the eff-orts of the Guidance Clinic of the Middle Keys in assisting and hiring the physically disabled of Monroe County. BULK APPROVALS Motionwasmade by Commissioner Neugent and seconded by Commissioner Williams granting approval of the following items: Board granted approval to remove surplus equipment from inventory via advertising for bids/disposal/trade and approval to award Surplus equipment as described on attached list. Said list is incorporated herein by reference, 2 0 0 1 / 31 `114 1 1) 1 2/ 19/2001 A Public Hearing was held concerning adoption of a Resolution approving amendments to the Development of Regional Impact (DRJ) Development Order- Resolution No. 365-1986, and modifications to the major development approval for the Hawk's Cay expansion DRI- providing for an effective date. There was no public input. Motion was made by Commissioner Williams and seconded by Commissioner Spehar to continue the item to the Special Meeting on January 15, 2002 in the Marathon Government Center at 5:30 RIM Motion carried unanlmous!-Yr. e second of two public hearings were held concerning adoption of an Ordinance amending the Monroe County Land Development Regulations by adding Section 9.5-258 to establish a new Land Use Overlay District that will prohibit the extension or expansion of public utilities to units of the Coastal Barrier Resources System. Mr. Hendrick addressed the Board. There was no public input- After discussion, motion was made by Commissioner Williams and seconded by Commissioner Spehar to adopt the following Ordinance by adding Section 9.5-258; Providing for the severability- Providing for the, repeal of all Ordinances Inconsistent herewith'. Providing for incorporation into the Monroe County Code; and directing the Clerk of the Board to forward a certified copy of this Ordinance to the Florida Department of Community Affairs and providing an effective date. Roll call vote was unanimous ORDLNANCE NO. 043-2001 Said Ordinance is incorporated herein by reference. There being no further business to come before the Board, the meeting was adjourned. Danny L. Kolhage, Clerk and ex-officio Clerk- to the Board of county Commissioners Monroe County, Florida Isabel C. DeSantis, Deputy Clerk ORDINANLEIN0. 043 -2001 AN ORDINANCE AMENDING THE MONROE COUNTY CODE BY ADDING SEC, 9,5-258, PROVIDING FOR TITE SEVERIBILITY; PROVIDING FOR THE REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH,- PROVIDING FOR THE INCORPORATION INTO THE MONROE COUNTY CODE; AND DIRECTING THE CLERK OF THE BOARD TO FORWARD A CERTLTIED COPY OF THIS ORDINANCE TO THE FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS PROVIDING AN EFFECTIVE DATE WHEREAS, the Coastal Barrier Resources Act (CBRA) of 1982 established the Coastal 'Barrier Resources System (C.BRS) to rest -net the federally subsidized development of coastal barrier areas and specifically prohibited the "construction or purchase of any structure, appurtenance, facility, or related infrastructure" 16 U.S.C. 3504(a)(1) in said areas: and WHEREAS, Monroe County has 15 designated units of the CBRS which can be found listed in Table 3.21 of the Monroe Co "ity Year 20111 Comprehensive Pian'Technical Document and illustrated on the Existing Land Usemaps of the 1.n Comprehensive Plan Map Atlas; and WHEREAS, Objective 102.8 of Monroe County Year 2010 Comprehensive Plan states: "Monroe County shall take actions to discourage private development in areas designated as units of the Coastal Barrier Resources System N -5.006(3)(b)41"; and WHEREAS, Policy 102.8.5 of Monroe County Year 2010 Comprehensive Plan states: "Upon adoption of the Comprehensive Plan, Monroe County shall initiate efforts to discourage the extension of facilities and services provided by the Florida Keys Aqueduct Autho.nitlyl and private providers of electricit-y and telephone ser vices to CBRS units"; and WHEREAS, Current Flood Insurance Rate Maps published for the National Flood Insurance Program by the Federal Emergency Management Agency, indicates there are five developed residential areas (with five structures or less per acre) and one commercial area that fall within the CBRS desi Vatican; ation; and WHEREAS, on Thursday, April 19, 2001. the Growth Management Staff was directed by the Board Of County Commissioners to create an overlay district prohibiting the extension of public utilities to certain areas of the county; and WHEREAS, the Development Review Committee on August 14, 200'. reviewed the legal authority and the proposed text, and recommended approval of the proposed 'text; and WHEREAS, during a regular meeting held on September 26, 2001, the Monroe County Planning Commission conducted a public hearing on the proposed text, and recommended approval of the proposed text; and WHEREAS, The Monroe Comity Board Of County Commissioners was presented with the following information, which by reference is hereby incorporated as part of the record of said hearing: Page I of 3 Initials \\GMD00591pub$\Planning\WorkingFolders\will-robert\TextAmenei-�p„t,.\Onl>,z�e-nr)cn,-1,-,r,`+--4 _ lbe Staff report prepared on September 19, 20011 by K. Marlene Conaway, Director, Planning and Environmental Resources. 2. Proposed changes to the 'Monroe County Land Devcl=rnent Re la glu iions. The swom testimony Of the Growth Management Staff. 4. Comments by the public; and WHEERFAS. the Monroe County Board of County Con-ft-nissioners examined the: Proposed aniendments to the Monroe County Code submitted by the Monroe County ,Planning Department; and ing WHEREAS, the Monroe County Board Of C-ourity Cormf-Ilssioners hereby supports the decision Of the Monroe County PlanningI Planning Department; and Commission and ',he staff of j-he Moni-oc County WHEREAS, it is the desire of the Monroe County Board of County Comi_� e har % �issj ,Tiers 1', the following amendment to the County Code be approved, adopted and transmitted to the ..state land planning agency for approval; NOW THEREFORE; BE IT ORDAINED BY 'J'HE BOARD OF COUNV T Y COMMISSIONERS OF -MONROE COUNTY, FLORIDA, THAT: Chapter 9,5, Article --ision -Cby VII Div IS 11ci amended to inciade the, following: See. 9.5-258. Coastal barrier resources system overlay district. (3.) Aulpose: The purpose of the Coastal Barrier Resources Systen, 0",rerlay District is to implement the policies Of the comprehensive plan by prohibiting the extension and expansion of sPeci'le types Of Public Utilities to or through lands designated as a unit of the Coast Resources System. al Barrier (b. I I areas, except for Stock Island, within federally designated boundaries of a Coastal overlaid on all �, 11 b APP-Iicat;oft: The Coasral Barrier Resources System Overlay District s a e Barrier Resources System Unit on current Flood Insurance Rate. Maps approved by the Federal Emergency Management Agency, which are hereby adopted by rcfC . -genie and declared pa— f this chapter. Within this overlay d� it C ISU let, the transmission and/or collection line- ofthefollowing types Of Public Utilities shall be prohibited from extension or expansion: c' ' "_ treatment collecti central wastewater ion systems; potable water; electricity-, and telephone utilities hproof ishall not preclude the maintenance and upgradingOfexisting Public in placel the effective date of this ordinance and -shall not y applto wastewater nutrient red Ssystems.I � L.c*,101-1 cluster SLCtiou 2. If any section, subsection, sentence, clause, itcrn, change, or pro,0sion of this ordinance is held invalid, the remainder of this ordinance shall not be affected by suzch validity, 3 Section 3, All Ordinances or parts of ordinances in conflict with this ordinance are hereby repealed to the extent of said conflict. Page 2 of 3 Initial-, VG king Foiders4ilkrnt.,,r,',,,t A Section 4. This ordinance shall be filed in the Office of the Secretary of State of Florida, but shall --not become effective until a notice is issued. by the Department of Community Affairs or Administrative Commission approving the ordinance. Section 5. This ordinance shall be transmitted by the Plarujins, Department to the Department ot'Community Affairs to determine the consistency of this ordinance with the Florida Statutes. Section 6. The Director of Growth -k-fanagernent is hiereby directed to tbnvard a copy of this —ordinance to the Municipal Code Corporation for the incorporation in the. Monroe County Code of Ordinances once this ordinance is in effect, PASSED AIND ADOPTED by the Board Of County Commissioners Of N410Proe County, Florida at a regular meeting held on the 11- 9 ti, day of December A. D., 200 Mayor Charles "Sonny" McCoy yes Mayor Pro Tern Dixie Spehar Commissioner Murray Nfelsol-, Commissioner George iJ roc it Ye Commissioner Nora Wiffiam, s ves BOARD OF COUNn" COMMISSIONERS OF MONROE COLTINTY9-10RJDA Mayor Charles Y"nn—y'l —McCoy LAGE CLERK -,) t-I / DEPUTYCLERK fff SIN 0 OVED PIA', FORM V 4, 1 1 IF, -1 IEPI A N EGI -' "0' Arts . -Xe Pa,ge 3 of 3 initials C:\VVINDOWS\Temporary Internet Hes\0LK827RRob CBRS BOCC Ord 122001.doc SCNNK — History of Comme Electricity — Packet for New Commi iers —11 /2008 June 11, 2003 Honorable Richard G. Payne Amended Order Granting Summary Judgment In favor of Monroe County and City Electric Service, Defendants Case No. 99-819-CA-18 16t' Judicial Circuit Monroe County, Florida VIt-PUYVI y OFFICIAL RECORM RC D jun 13 20 09t33AM DANNY L K0LH1t-.,, CLERK 2 4 9 n, Flit I F� 9 7 PG#1 4 2 6 IN THE CIRCUIT COURT OF THE 16"' JUDICIAL CIRCUIT OF THE STATE OP FLORIDA IN AND FOR MONROE COUNTY CASE NO: 99-819-CA-18 TAXPAYERS FOR THE ELECTRIFICATION OF NO NAME KEY, INC., ET AL., Plainfift Vs. MONROE COUNT`", a politiclall subdivision Ot the State of Florida, and CITY E-1ECTRIC, 3 F RV 1 C CE, CA Defendants And DR. SNI-7-1.1- PUTNEY and ALICIA ROEMMELE-PUTNEY, intervenors Upon relinquishment of jurksdictionand remand from the, District Court the COUrt enters this, its Amended Order Granting Summary Judgment. THIS MATTER having come before the court on Defendant Monroe Co,,jnty Motion for Summary Judgment, 'intervenor, PUTNEY'S Motion for Summary Judgment, various affidavits and attachments thereto, responses to requests for admissions and interrogatories filed with the court, Report and Recommendation Of Special Master, and Defendant Monroe County's Exceptions to Report of Special Master, Intervenor Putney's Exceptions to Report and Recommendation Of Special Master, the court having reviewed the Pleadings, heard argument of counsel, and being otherwise duly apprised, it is hereby, ORDERED and ADJUDGED that the Report and Recommendation of Special Master is hereby REJECTED, Monroe County and Intervenor's Exceptions to said Report are $hereby GRANTED and Defendant Monroe County's Motion for Summary Judgment is hereby GRANTED on the following grounds: There is no genuine dispute as to the following facts: FILE :2> 4 _7 1, Plaintiffs' homes are all located on No Name Key, Monroe County, Florida, and as such are located within the habitat of the endangered Key Deer. 2. Each of Plaintiffs' homes had obtained final developmental approval frorn Monroe County more than four years prior to the filing of the instant action. 3. 'rho building approvals and regulations in question, i.e., The Monroe County Code, adopted in 1973, ,and Development Regulation of 1986 and Monroe County Year 2010 Comprehensive Plan were adopted more than four years Prior to this action. 4. ON January 20, 1998, Plaintiffs requested a pre -application conference with Monroe County to discuss Plaintiffs' development proposal for the installation of electrical service transmission lines to Provide commercial electrical service to the single family homes already permitted and built orl No Name Key and were issued a "letter of understanding" from Monroe County that Plaintiffs' proposal would be inconsistent with the regulations set forth in paragraph 3 aforesaid as well as the provisions of Florida Statute Chapters 163 and 380, and therefore could not be approved. 5. This determination was appealed to the Monroe County Planning Commission and on February 3, 1999 said appeal was denied by issuance of Resolution P 17­99, attached hereto. 6. Plaintiffs failed to appeal this denial in accordance with ordinance provisions allowing for same, See § 9.5-535; Monroe County Code. 7. Plaintiff can site to no official action by Monroe County, i.e., by resolution, ordinance, permit or official motion or letter of understanding whereby Plaintiffs were to be granted the right to have commercial electrical service available to their properties on No Namo Key. 19. Plaintiffs' Equal Protection, Vested Rights and declaratory judgment claims are barred by res judicata. See, Verdi v. Metropolitan Dade County, 684 So.2d 870 (Fla. 3d DCA 1996); KOY Haven ASSOCiated Enters. V. appeal -99 of the Monroe County Planning Commission to the Resolution P17 I Board of Trustees, 427 So.2d 153 (Fla. 1982). Plaintiffs failed to Board of County Commissioners as Provided in the County's Land Development Regulations. Plaintiffs are thus barred from re -litigating the factual findings and legal conclusions therein relative to the rational basis for the county's decision to deny the extension Of electric service to No Name Key, the lack of a substantial and detrimental change Of Position based on the standard electric wiring requirements for the issuance of building permits, and the consistency of that decision with the Countys FILE *I- A-2419 BK#1 B9 7 PG#3- 4 2 S Comprehensive Plan. The findings within Resolution PI 7-1,49 are dispositive of Plaintiffs' Equal Protection and Vested Rights claims 9. Additionally, Plaintiffs' Vested Rights claim fails as a matter of law because Plaintiffs fail to allege an affirmative governmental act of approval by Defendant Monroe County to the expansion of commercial electrical service to No Name Key. Plaintiffs cannot base its claim to vested Rights on an implied expectation that some day said Key would have commercial electrical power extended to it. 10. Therefore, summary judgment is granted in favor of Defendants on Plaintiffs' Equal Protection and Vested Rights claims and said counts are dismissed with prejudice. 11. Plaintiffs have no statutory or property rights to have electric power extended to their homes, which are operated with alternative, typically solar, energy sources. Section 366.03, Fla. Stat., is not meant to apply to Defendants Monroe County or City Electric Service. Even if the statutes were applicable, Section 366.03, Fla. Stat., does not provide a right to commercial electric service if such service would be inconsistent with Chapters 163 and 380 or the Monroe County Comprehensive Plan. Utilities Commission of New Smyrne Beach v, Florida Public Service Commission, 469 So.2d 731 (Fla, 1985); Storey v. Mayo, 217 So.2d 304 (Fla. 1968); Gulf Coast Electric Co-op., Inc., v. Johnson, 727 So.2d 259 (Fla. 1999). Said extension of electric power would clearly be inconsistent with Monroe County's Comprehensive Plan for development. See City of Ovierlo v. Clark, 699 So.2d 316 (Fla. Is' DCA). Therefore, Plaintiffs' count for statutory entitlement to receive electrical power is dismissed with prejudice. 12. There being no genuine issue of material fact and as a matter of law Defendants are entitled to a judgment as a matter of law. 13. Plaintiffs' complaint is hereby dismissed with prejudice and Plaintiffs shall take nothing by this action. DONE and ORDERED in Chambers at Key West, Monroe County, Florida, this I I th day of June, 2003. NUNC PRO TUNC JUNE 11, 2002. ,113*11101t Wel. cc* Karen Cabanas, Esq. Nathan Eden, Esq. SCNNK — History of Conn Electricity — Packet for New Comm tern—1112008 Dec mber 15 2oJune 20, 2007 Monroe County Ordinance Creates Article XII, Section 15.5--181 Big Pine Key Municipal Service Twdng Unit yV'hit+ Fjulu s N Nam a Be o N K is M ew t r Cold t - Serve by OWNR,S • Ordinance No. Q38-20-04 WAs ad=ed ga 12ember 15, 2004 creating municipal service taxing districts (MSTUs) for the purpose of assessing and collecting taxes to pay for administration, planning and development costs associated with and incurred in advancing wastewater and reclaimed water project for the following units: Stock Island,Summerland/Cudjoe/ Upper Sugarloaf, Big Pine Key, Conch/Duey Key and Long Key /Layton. No. revising the legal descriptions' of all those taxiing districts erroneously set forth in Ordinance No. 038-2004, except the correct legal description of the Long Key/Layton MSTU. 0 SCNNK — History of Commercial Electricity — Packet for New Commissioners — 11/2008 MONROE COUNTY CODE ARTICLE XII. BIG PINE MUNICIPAL SERVICE TAXING UNIT* *Editor's note: Ord. No. 038-2004, § 5, adopted Dec. 15, 2004, was not specifically amendatory of the Code and has been included as Art. XII, § 15.5- 181 at the discretion of the editor. Sec. 15.5 -181. Created. (a) Pursuant to the provisions of F.S. § 125.01(1)(q), there is hereby created a municipal service taxing unit to be known as the Big Pine Municipal Service Taxing Unit. The Big Pine Municipal Service Taxing Unit shall encompass that portion of the unincorporated area bounded on the west by Niles Channel and on the east by the west end of the Seven Mile Bridge less No Name Key. (b) The board is hereby authorized, in the manner and under the authority provided by F.S. § 125.01(1)(q), to levy and collect ad valorem taxes at a millage rate not greater than 0.70 mil upon taxable real and personal property within the Big Pine Municipal Service Taxing Unit, commencing with the county fiscal year beginning October 1, 2005. The imposition of ad valorem taxes, as authorized herein, shall cease after four (4) consecutive fiscal years and the Big Pine Municipal Service Taxing Unit shall terminate on September 30, 2010. (c) Revenue derived from ad valorem taxes levied in the Big Pine Municipal Service Taxing Unit shall be used solely for the administration, planning and development costs associated with and incurred in advancing wastewater and reclaimed water projects within and benefiting the Big Pine Municipal Service Taxing Unit. The board shall adopt a budget for the Big Pine Municipal Service Taxing Unit for the county fiscal year beginning October 1, 2005 and each fiscal year thereafter, at the same time and in the same manner as the county budget. (Ord. No. 038-2004, § 5; Ord. No. 010-2005, § 5; Ord. No. 025-2007, § 2) Secs. 15.5-182--15.5-190. Reserved. SCNNK — History of Commercial Electricity — Packet for New Commissioners — 11/2008 Some of the Documentation Regarding the Extension of the New Infrastructure of Centralize Wastewater Collection to the Island of No Name Key, Florida April 2oo8 - September 20o8 Assembled by: The Solar Community of No Name Key 1934 No Name Drive No Name Key, Florida 33043 .........� ..,..w.) v. vw.uu. ,.. _..v.....w.> ..w.�vr .v. ..v.. �.v..,.., ., ..e,..vvv Monroe County Board of County Commission Meetings No Name Key and Wastewater April 16, 2oo8 — Key West May 21, 2oo8 — Key Largo June 18, 2oo8 — Marathon Sept.17, 20o8 — Key West • The issue of No Name Key and, ostensibly, wastewater was heard by the BOCC four times in six moths: April, May, June and September. • From the comments made by Commissioners DiGenarro and McCoy at the first BOCC meeting in April, it was clear the issue was really about commercial power and not wastewater. • In nearly every instance, the information provided to the Commissioners was limited to the language of the Agenda Item Summary Sheets provided by Commissioner DiGennaro's office; and, documents submitted by members of the public, as opposed to data and analysis submitted by Staff. • There seems to be an almost total lack of factual knowledge regarding the planning and review process of the Monroe County Sanitary Wastewater Master Plan, including it's proper name. • Hopefully, this packet of information will help shed some light on the history of wastewater planning and No Name Key. In the interest of order, there is a section for each of the four Board of County Commissioners meetings. SCNNK — History of Comme Aectricity — Packet for New Comm* :rs—11/2008 April 16, 20o8 - Key West, Florida Monroe County Board of County Commission Meeting Agenda Item J-5 —Commissioner DeGennaro's Item —ADD -ON se p • "The County should take the responsibility to provide public wastewater services to No Name Key, removing the burden of meeting the 2010 State mandate for the individual property owners and stabilize the residents who are very concerned and upset about this issue." There were ten (1o) pages of information submitted by the public, copies of which are included in this section and on the Monroe County website. Summary of Meeting and Outcome: The BOCC directed staff to investigate/analyze the situation to see IF No Name Key should be included in the Lower Keys Regional Wastewater Facility and to specifically explore the STEP/STEG small diameter technology for No Name Key. was referred to Staff, for ftuthee review." -1 Of 2- Comments and Corrections Agenda Item Summary Sheet (J-5) 1. There are 42 dwelling units with Certificates of Occupancy and 1 partially built structure. In terms of wastewater planning, the safer number is 43• 2. The Monroe County Sanitary Wastewater Master Plan ranked all areas of Monroe County as either wastewater "cold spots" or wastewater "hot spots" based upon their potential to negatively impact the environment. 3. The Monroe County Sanitary Wastewater Master Plan divided the Keys into 27 study areas. No Name Key lies within the "Big Pine Key Study Area #11." [See: Monroe County Sanitary Wastewater Master Plan, Exhibit 1.2.1 4. The Monroe County Sanitary Wastewater Master Plan identified 17 "hot spot" areas in the Lower Keys. No Name Key was identified as a wastewater "cold spot"; and therefore, not listed as a "hot spot". [See: Monroe County Sanitary Wastewater Master Plan, Exhibit 6.1.] 5. Per the Monroe County Sanitary Wastewater Master Plan, areas designated as wastewater "hot spots" are those areas best served with central wastewater collection and treatment. And, those areas designated as wastewater "cold spots" are best served by onsite treatment systems. 6. The Monroe County Sanitary Wastewater Master Plan identified 1,085 EDUs (equivalent dwelling units) that would be best served with onsite treatment systems. The 43 No Name Key EDUs are included here. 8. It is not within the perview of the BOCC per se to change a wastewater "cold spot" to or from a wastewater "hot spot." Under the law, any such change would have to be based on data and an analysis. 9. Not all onsite wastewater nutrient reduction systems (OWNRS) are aerobic systems. Not all OWNRS require a pump that runs 24 hours a day, 7 days a week. lo. OWNRS that meet the Year 2010 Wastewater Standard of lo-to-io-1 can be installed and will work with solar systems on No Name Key. -2 Of 2- BOARD OF COUNTY COMMISSIONED AGENDA ITEM SUMMARY **ADD — ON** Meeting Date: Wed_jApril 16, 2008 Division: BOCC Bulk Item: Yes — No XX Department Comm Di Gennaro, District-4 Staff Contact Person: Tamara Lundstrom (305 289-6000) AGENDA ITEM WORDING: Discussion and direction to staff to include No Name Key into the Lower Keys regional wastewater facility design plans. ITEM BACKGROUND: There are currently 47 No Name Key residences in a documented environmentally sensitive area which should be included in the County's central sewer plans with the required designation as a hot spot. The County should take the responsibility to provide public wastewater services to No Name Key, removing the burden of meeting the 2010 State mandate from the individual property owners and stabilize the residents who are very concerned and upset about this issue. No Name Key should be added now to the design plans for the Lower Keys wastewater system along with Big Pine. PREVIOUS RELEVANT BOCC ACTION: Item J.2 of April 16, 2008 BOCC agenda expands the ILA with FKAA for the Summeriand/Cudjoe/Sugarloaf Regional Wastewater System to cover design for Big Pine Key through Ramrod and Lower Sugarloaf. CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: TOTAL COST: COST TO COUNTY: BUDGETED: Yes _____ No SOURCE OF FUNDS: REVENUE PRODUCING: Yes -- No.— AMOUNT PER MONTH__ _ Year APPROVED BY: County Atty — OMB/Purchasing Risk Management _____ DOCUMENTATION: Included DISPOSITION: Revised 2/05 Not Required XX AGENDA ITEM #__ T_ -_ MINUTES OF THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS Regular Meeting Board of County Commissioners Wednesday, April 16, 2008 Key West, Florida 67 A Regular Meeting of the Monroe County Board of County Commissioners convened at 9:00 A.M., at the Harvey Government Center. Present and answering to rolt call were Commissioner Mario DiGennaro, Commissioner Sylvia Murphy, Commissioner George R. Neugent, Commissioner Dixie M. Spehar and Mayor Charles "Sonny" McCoy. Also present at the meeting were Debbie Frederick, Acting County Administrator; Suzanne Hutton, County Attorney; Danny L. Kolhage, Clerk; Isabel C. DeSantis, Deputy Clerk; County Staff, members of the press and radio; and the general public. ADDITIONS, CORRECTIONS, DELETIONS Motion was made by Commissioner Spehar and seconded by Commissioner Murphy granting approval of the Additions, Corrections, and Deletions to the Agenda. Motion earned unanimously. PRESENTATION OF AWARDS Presentation of the 2007 Employee of the Year Award to Brandon Gill, Systems, Analyst, Technical Services Division. Presentation of Mayor's Proclamation observing the week of May 18-24, 2008 as Emergency Medical Services Week. Presentation of Mayor's Proclamation observing May 10, 2008 as World Lupus Day. Presentation of Mayor's Proclamation declaring April 2008 as Water Conservation Month in Monroe County. Presentation of Mayor's Proclamation declaring the week of April 13-19, 2008, as National Library Week. Presentation of Mayor's Proclamation declaring the month of April 2008, as Library Appreciation Month. Presentation of Mayor's Proclamation proclaiming the week of April 13-29, as National Victims' Rights Week. COMMISSIONERS' ITEMS Commissioner Spehar discussed her item concerning the creation of a "Green Team" made of concerned citizens throughout the keys. The purpose of the "Team" is to recommend to the BOCC green standards for building that would be adopted into the Monroe County building codes. The following individuals addressed the Board: Donna Windle and Alicia Putney. Andrew Trivette, Growth Management Director discussed the matter. After discussion, motion was made by Commissioner Spehar and seconded by Commissioner Murphy granting approval of the creation of a "Green Team". Roll call vote was unanimous, with Commissioner Neugent not present. WASTEWATER ISSUES Dave Koppel, County Engineer provided the Board with a written report entitled Wastewater Projects - Status Report Update, dated April 16, 2008, Motion was made by Commissioner DiGennaro and seconded by Commissioner Spehar granting approval and authorizing execution of an Amendment to the September 20, 2006 Interlocal Agreement to expand the Summerland/Cudjoe/Sugarloaf Regional Wastewater System to cover design for Big Pine Key through Ramrod Key and Lower Sugarloaf. Motion carried unanimously, with Commissioner Neugent not present. Motion was made by Commissioner Murphy and seconded by Commissioner. Spehar granting approval and authorizing execution of an Interlocal Agreement between Monroe County and the Key Largo Wastewater Treatment District (KLWTD) to enable early connection to the wastewater system for the Murray E. Nelson Center. The County shall have until June 15, 2008 to pay the assessment. Motion carried unanimously, with Commissioner Neugent not present. The Board discussed the direction to Staff to include No Name Key into the Lower Keys Regional wastewater facility design plans. The following individuals addressed the Board: Jim Newton, Rick Sweet, Jennifer Sweet, John Bakke, Mary Bakke, Donald Craig, representing No Name Key Homeowners; Petronella Benton, Charles Bone, Ruth Newton, Bob Benton, Beth Ramsay-Vickrey, Brad Vickrey, Tom Sinclair, Bob Reynolds, Dean Thompson, Tara Vickrey, Alicia Putney, Kathy Wheeler, representing the Big Pine Key Civic Association. Dave Koppel, County Engineer discussed the matter. The item was referred to Staff for further review. DIVISION OF GROWTH MANAGEMENT The Board discussed a Resolution approving a request by the Growth Management Division for a Tier Overlay Map amendment from Tier I to Tier III for property having real estate numbers: 00119260.000000, 00119270.000000, 00119280,000000, 00119300.000000, 00119310.000000, 00119320.000000, 00119330.000000, 00119340.000000, 00119360.000000, 00119360.000100, o4/i6/2oo8 BOCC Regular Meeting Key West, Florida Agenda Item J-5; "Discussion and direction to staff to include No Name Key into the Lower Keys Regional Wastewater Facility design plans (aka Summerland/ Cudjoe/ Upper Sugarloaf/ (Big Pine Key through Ramrod and Lower Sugarloaf Key were presumable added today with the approval of Item J-2 by the BOCC). Dear Mayor McCoy and Fellow Board of County Commissioners: The wording of this agenda item needlessly raises problems which can be avoided by a simple change in wording. Specifically, it commits the homeowners of No Name Key to becoming a part of the Lower Keys Regional Wastewater Facility design plan without recognizing the legal, technical and financial issues, which this inclusion involves. Apart from the prohibition of federal dollars being used to extend an infrastructure to No Name Key as Coastal Barrier Resources System unit FL-50, it simply would not be financially practical to tie 43 dwelling units into a conventional gravity, or vacuum collection system. The technical problems are simply too great, including, of course, the lack of commercial power. Obviously it is essential to find a way for No Name Key to meet the 2010 deadline with an acceptable system, and it is beginning to appear that individual on site systems which meet the standards may not be the most practical solution. Serendipitously, one of the 43 homeowners on No Name Key, a Mr. Tom Sinclair, is a renowned wastewater engineer who owns the largest manufacture of onsite wastewater system in the country, Wastewater Systems, Inc. He believes that a STEG hybrid system, partly on site and partly central would be technically and financially feasible. And, it is our belief that this system maybe legally instituted provided, among other measures, No Name Key is a separate Municipal Service Taxing Unit District to ensure compliance with the federal Coastal Barrier Resources Act. [Public Law 101-5911 Whether or not this particular approach proves to the final solution, we strongly believe that we need to investigate aggressively all means of bringing No Name Key into compliance with the 2010 directive. -1- We do not believe it was the intention of Commissioner DiGennaro to close off such investigation in the wording of his proposed directive. Accordingly, we respectfully ask if he would consider amending this agenda item to give staff the latitude necessary for a full analysis of our options. We offer the following substitute wording for Commissioner DiGennaro's consideration: "direction to staff to investigate wastewater options that would be legally, technically and,f nancially feasible solutions to bring No Name Key into compliance with the 2010 BAT standards of lo-lo-to-1." In closing, we ask that you please support our amendment to this agenda item wording and help us make a well informed decision that will allow us to achieve the 2010 wastewater standards while respecting the uniqueness of the special place we call home, No Name Key. Thank you for you time and consideration in this important matter. Sincerely, Alicia & Mick Putney -2- Good afternoon Mayor, Commissioners, Ladies and Gentlemen - My name is Beth Ramsay-Vickrey, I am a resident of No Name Key, but I'm not a public speaker, so please forgive and bear with me as I am doing my best. I would like to start by thanking you the Commissioners for your time and attention. I would also like to thank all on the Monroe County staff, and the FKAA officials with whom we have been working closely. I realize that you all have a lot on your plates and are diligently working to comply with and solve the Florida Keys sewer mandate issues. No Name Key is a small community, with just more than 40 homes; we are at times overlooked and forgotten. Sometimes it is very hard to be the "little guy" (or in our case, the little community). We have inherently been included with Big Pine Key (BPK/NNK Habitat Conservation Plan, BPK/NNK Master Plan, etc) and we just wanted clarification that we remain a part of this inclusion; that both Big Pine Key and No Name Key are included in the Lower Keys waste water plan. Your reassurance here today that we have not been forgotten is greatly appreciated. One department who does not forget about us is the Tax Collectors office. We have no public water, yet we pay water taxes. In all the years, only one (1) child from No Name Key has even been enrolled in the public school system. We don't go to the County asking to have our roads paved. We don't have much in the way of police patrol, nor do we ask for it; rarely are the police called out to No Name Key as we look out for each other. Some have called us a "Donor Community"; and perhaps we may be, as we ask very little from our County. There is one other thing that i, that we, respectfully are asking for now: a Commitment. Declaring No Name Key a "Hot Spot" relieves us of the burden of installing an alternative system by the 2010 deadline. It gives all of us (the Board, the Staff, the Engineers, the Planners, the FKAA, and the NNK Community) the Commitment of working towards the best solution. This would also relieve us from the potential of paying twice: Once to install a marginal system, which in all likelihood will not meet State standards; and a second time if (and hopefully when) we are included into our County -wide central sewer system. Due to the lack of public electricity on NNK, the individual homeowner needing to comply with the State mandate is left with a Great Burden, if not an impossibility. A few "ideas" have been tossed around, such as: Composting Toilet & Performance Based Aerobic Systems. *Composting Toilets: All 1 can say is that I personally can't comprehend how or why anyone would suggest a thing, to me it is a vulgar suggestion and no solution. -Would any of you Commissioners want one of those things in your home? *Performance Based Aerobic Systems: They require a lot more power than our homes produce from solar. As it is now, there are generators running to make up for the difference in current power needs. if stuck with the added, and very heavy burden of aerobic system pumps (which need to run 24/7/365); we would have to turn to generators and No Name Key would become nothing less than a gas guzzling, noisy, polluting (high carbon footprint) generator station. As one County engineer correctly stated; "we would be cleaning up the water by polluting the air". I just don't think that was the intention of this (2010) State mandate. We have been, and we will continue to address any other options; but at this time we see none viable. Frankly we are quite concerned, and you might even say frightened, by the words: "unique" or "novel". * We don't feel that NNK should become the testing grounds for "unique" or "novel" waste treatment systems that are experimental and not approved; and may not satisfy the State mandate. This may end up costing all of us (NNK and our County) more in the long run both economically and environmentally. —1 think this is a scary road to ask us travel. One person has also pointed at the Coastal Barrier Resource Act in order to prevent NNK from having a central sewer connection; I would like to take a moment to address this. The C.B.R.A. was never intended to harm the individual homeowner, and it does not prohibit sewers (for NNK). i have the feeling that the C.B.R.A. has been misconstrued through the years as the Fish and Wildlife service felt it necessary to publish an Executive Summary in 2002 describing the Intent of the C.B.R.A. -they say: On m Also of importance to note are two things: 1) While the CBRS Act Prohibits "Federal" Funding, it does Not prohibit State Funding: Sewers can be installed on No Name Key with State Monies. 2) Also, there are Exceptions to the "Federal" Funding Restricts, which may apply: ,t -Isn't this 2010 State Mandate an act of Conservation: A Clean Water Act? We have repeatedly been told that a central sewer system is the best environmental solution, and we understand that connecting No Name Key to the central sewer system will be a little more complex than connecting some of the other communities; but I promise you Commissioners that we (and yes, "we" are very much the majority of the homeowners on this island) will work tirelessly and diligently with you, with all members of the BOCC, all County staff, and the FKAA, in order to assist in any way possible. We do not wish to be a part of our County's concerns; but we commit to you to be a part of the solution. *1 stand before you today offering you my/our commitment to work with you, and 1 respectfully request you give us your commitment: Declare No Name Key a "Hot Spot", so that we can all work together towards this best solution. I sincerely thank you all for your time today, and I respectfully leave you with this request: a Commitment. Beth Ramsay-Vickrey 2035 Bahia Shore Rd No Name Key, FL 33043 305-872-2114 Beth@MacDanes.com s re Y p 0 yr I IWOWN LT VC r1V1Tn7t11 rage + of i Subject: RE: URGENT: MUST ATTEND APRIL 16TH MEETING Date: Wed, 9 Apr 2008 t0: t8:S9 -0400 From. Dave.f-aken@MyFWC:.com Try: �aYiri t�akkel�hut�r�e�'�.c.urn Hey John, can you pass this message on to Mary please? I don't have her e-nY work. -dave Regrettably, I will not be able to attend the meeting on Wednesday. I will be lea, outreach event in St. Petersburg that has been planned for over 1 year Wednes4 that Putzney is trying to circle the wagons, but she is probably down to 2 or 3 we Mallet, and Barber ... .with support from the rest of the island I have a hard time b. commissioners won't finally make a decision that benefits us. Thank you for aff your hard work and attention in this issue, please keep me in rf Dave http://by l 15w.bay 115.mail.live.com/mail/ApplicationMain_I2.4.0080.0327,aspx?cul ure 4/15/2008 1T IITUVYVJ L" VG 1 ,VU11aIl vage i of 1 John Sandroni {cf ,r >i ,,; i� l:: �cisPl' c, Mary, first of all thank you and all who has worked for the owners of property (n NNK fr have also thanked Mr Nugent and Mr. Digenaro for there support. I apologize for not b meeting on the '16th of April because of my previous schedule meeting that c,vr tno. i you have sent and in the future 1 will try my best to attend any tUtUre meetings Thanks for the coliaboratron Sohn .l v7w5'�SJtiN http://by 115%v.bay 115.mail.live.com/mail/AppiicationMain_ 12.4.0080.0327.aspx?culture=... 4/15/2008 Windows Live Hot -mail PCI�;G f VI i Although I can't be there as I am teaching a class, it ap repriWte, central wastewater treatment, 1 am there in spirit and advocacy. Dan Morris 2800 Tortuga LO No Name Key http://by 115w.bay 1 15.mail.live,com/mail/ApplicationMain_12,4,0080.0327. aspx?culture=... 4/15/2008 SCNNK — History of Comm I Electricity — Packet for New Comn ners —11 /2008 May 05, 2oo8 Letter of Support for STEP/STEG Wastewater Technology From No Name Key Homeowners (N=16) to Monroe County Board of County Commissioners • Letter from Hallett Douville, The Solar Community of No Name Key, to Monroe County Board of County Commissioners, O5/O5/2oo8, 3 pages. To: Commissioner (Ijeorge Nugent & Fellow Monroe County Board of County Commissioners Mr. Dave Koppel. Monroe County Frigineer & bellow Monroe, County Engineers 10r, Tim Reynolds. EXeerztiv,: Director, Florida Keys Aqueduct Authority (liK tAA) Frorn: The 11omeowners of No name Key Listed Below (Each of who were contacted by phone andYm I' -mail and wanted to sign -on to this letter Date: 0 Ma v ?t s3s4' Re,:: 5" I-T/STEG WasteNvater 'l"echnology and No Name Key. Florida We. the following homeowners of No Name Key would like to thank Monroe County and FKAA for O)Hkin 7 with N-Mr. 1 Ji1: Sinclair and us to ?Beet the 2010 zr asleiiatfr S",andard> with tli�° t11C �`. 'v`5t effective system and for their commitment to the, STET/STEO technology. TI P/S`I I .0 zs zn l PA approved ystem in Florida. As just one example, a. STUT/sTEG system is servicing approximately 20.000 homes in Paint (.'.oast- Florida. and has been operating for approximately twenty year,, its long-term low maintenance costs and high reliability can be easily: confirmed. However, some flexibility in pKA •S's standard procedures ixotjld be essential to install this EPA approved system cost effectively in the Keys. It should be cloud that using this ; stem in other areas ofthe FI„ r da Kays vtoul(' sue. stantid k stretch the limited dollars availably: for wastewater treatment. Atwell. Frank & Kimi 21 37 13_ahia Shores Road (,s 5) 7. -34�t� Barbera [Loh & Chris 1934 No Name Drive No Name Key, FL 33043 (305) f 72-1401 Brouillette, Jason 1843 Rahia Shores Road No Naa,e Key'. Ff., 33043 (305) 872-0283 4. Brouillette, Wayne & Christie 2107 Bahia Shores toad, NNK 328 Kings Crest Lane Pelham, AL .35124 Page 1 of", y. Daniels, Faye 20 Spanish Channel Drive No Name Key, FL 33043 (305) 87-0599 6Douville. Hallett& Linda 32140 Cat aric No Name Key, FL 33043 (305) 872-2055 7. Wanda Dry, Larry 18 68 No Name Drive, No Name Kev, III - 33043 005) 872-1951 11\ -0fild, I Is. Gato. kannette 1909 Bahia Shores Road �I No Name Key, FL 33043 (305) 864-09,1i 1 9- 1 lafl,-ichcu, I oni & Liz 192 1, Bahia Shores Road No Narne Key, 11, 33043 (305) 8722-0644 (570) 424-737 10. Press, Michael & Anti Spanish Channel Drive No Name Key, FI, '13043 (305) 872-7550 (12 1 ) 2 13-2654 a hoI 1) 1,11 Lcoll I H. Putney, Mick & Alicia 21 i-,O 'NIo Name Drive No Name Kev, Fl. (305) 872-8888 12. Scanlon, Bob & Jan 1845 No Name Drive No Name Kew,. FT. 33043 (305) 872-.8845 Page 2 01" Sinclair. Janie & Tom 2024 No Name Drive No Name Key, Ft, 33043 (305) 87-2-9830 14, Wernsen, []an,, & Corry it) 10 No Name Drive No Niame Key. Il; 13043 ( 3051) 972-3141 Witter, i om & Susan '1046 Bahia Shores Road No Nanic Key, FL 13043 (305) 5 15-208-2 (607) 967-8028 L� 3; 16. Zeman, Larry 1933 Bahia Shores Road No Nance KeyR, 1310431 (305) 87?-1173 Thank you again. Please feel free to contact me if I can be of an), tijrtber help in this matter. Sincerel�, /AtCllet DOVVU1e// Hallett Douville (3105) 972-2055 cc: Ms. Judith Clarke, Assistant County Engineer County Ms. Lisa Schieffele, Senior Engineer, Wastewater County Ms. Elizabeth Wood, Engineer, Wastewater, Monroe County Mr.TomWalker, Department Director of Engineering, Florida Keys Aqueduct Authorit", Mr. Donald flubbs, Assistant Director of Engineering, Florida Keys Aqueduct Authority I , I Mr. Rx. ShImokubo,. Engineer, Florida K-N s Aqueduct Authority Page 3 of 3 SCNNK - History of Commer l Electricity - Packet for New Commi, ners-11/2008 May 19, 20o8 Letter from Dr. Snell and Alicia Roemmele-Putney to Monroe County Board of County Commissioners In opposition to Approval to Designate No Name Key as a Wastewater Hot Spot Agenda Item J-2 - Commissioner DiGennaro's Item May 21, 20o8 BOCC Meeting — Key Largo, Florida • Letter from No Name Key residents, Dr. Snell and Alicia Roemmele- Putney, to Monroe County Board of County Commissioners, 05/19/2oo8, 4 pages. To: Mayor Sonny McCoy and Fellow Monroe County Commissioners From: Dr. Snell and Alicia Roemmele-Putney, No Name Key, FL — 872-8888 Date: 05/19/2oo8 Re: 05%21/2008 BOM Remdi ar MeeUig in My w=s Florida Agenda Item 1-2: "Approval to designate No Name Key improved residential areas as a "Hot for inclusion in the regional central wastewater system for the Lower Keys." [original wording] "Approval to provide central sanitary wastewater service to the property owners of No Name Key through inclusion of the area in the Lower Keys Regional Service Area wastewater treatment and collection system." [revised wording] A. This agemla item should be denied. Here are some basic reasons why. 1. Nothing prevents a wastewater Cold Spot from being serviced by central sewers. 2. No action on the part of the BOCC is required to connect a Cold Spot to a central sewage collection system. 3. There is no justification for this agenda item that relates to No Name Key wastewater. 4. The information provided to the BOCC as backup for this agenda item is totally misunderstood and is being misconstrued to justify an unnecessary BOCC action. (See Sections B and C below.) 5- If the BOCC approves this agenda item, the resulting Resolution may be used against Monroe County in upcoming lawsuits to extend commercial power to No Name Key. 6. Nothing has been presented for this agenda item to legally justify an action for No Name Key that is distinct from the remaining 1,042 property owners in Cold Spots beyond No Name Key. One such area is Big Torch Key which is also not served by commercial electricity. 7. Last month (04/16/20o8) the BOCC directed staff to look into central collection systems for No Name Key. They are doing that. Choosing the best option should be based on relevant and substantiated facts that have to do with wastewater, not based on tangential water quality data collected in 1985 for the DER Outstanding Florida Waters (OFW) designation report. B. No Name Key was not "inadvertently completely omitted from the Combs 2000 Wastewater Plan." 1. The 07/14/1997 "Scope of Work Monroe County Sanitary Wastewater Master Plan, Scope of Work — Project 1", as presented to the BOCC on o8/20/1997, clearly indicates that No Name Key is included within the boundary of the "Big Pine Key Study Area," along with West Summerland Key, Cook's Island and Munson Island. -1- 2. The Monroe County Sanitary Wastewater Master Plan, "Exhibit 1-2: Study Areas of the Lower Keys Areas" also indicates that No Name Key is included within the boundary of the "Big Pine Key Study Area # 11". 3. On o8/19/1997, the BOCC created the Monroe County Local Citizens Wastewater Task Force with publically noticed and televised bi-monthly meetings for two years. Mr. George Garrett, Director of Monroe County Department of Marine Resources, who personally participated in the i98os and 19gos water quality studies of the Florida Keys, chaired these meetings. A meeting often included a presentation on wastewater technology and available systems and updates by Mr. Ken Williams of CHM2Hill, Mr. Damann Anderson of Ayres Associates, Mr. George Garrett Director of Monroe County Marine Resources and by representatives other federal and state agencies. 4. The HRS Florida Keys Onsite Wastewater Nutrient Reduction Systems (OWNRS) Central Testing Facility was constructed at the Prison Camp on Big Pine Key to demonstrate that Onsite Wastewater Treatment Systems (OWTS) could significantly improve treatment and reduce concentrations of nutrients discharged to the nearshore environment of the Keys and reach AWT standards. "Process Stream 2", one of five steams tested, used a relatively passive technology that would work without commercial electricity and was conceived as the probable type of OWNRS for No Name Key, Big Torch Key and the Offshore Islands. 5. On 12/01/1998 and 02/03/1999 the Planning Commission heard and denied an Administrative Appeal to allow the extension of commercial power to No Name Key. On 07/02/1999 a lawsuit was filed against Monroe County and City Electric Systems in the 16t' Judicial Circuit Court. (No Name Key was certainly not under the radar.) 6. EPA 904-R-99-005: September 1999, includes "Table 1: Cesspool Identification and Elimination Areas", pages 4 and 5, which lists all unknown onsite wastewater systems in both hot and cold spots throughout the Florida Keys. Three No Name Key home- owners were listed. Each received a DOH registered letter requiring proof of a permit for their existing onsite septic systems. (All three were able to produce valid permits.) 1. EPA 904-R-99-005: September 19991, states on page 19, "In 1985, the Florida Department of Environmental Regulation (DER) studied the water quality of the waters surrounding the Florida Keys in preparation for the proposed designation of the waters of the Florida Keys as Outstanding Florida Waters (OFW)." The waters surrounding No Name Key were designated as OFW in 1968 and retained this designation through the 05/14/86 and 04/19/88 DEP modifications. [DEP Surface Water Quality Standards, 62-302 F.A.C., 6-302.700(9)(b)(1o). 1 The 1999 EPA report "Water Quality Concerns in the Florida Keys: Sources, Effects, and Solutions [EPA 904-R-99-0051 was presented to the BOCC on 01/20/2000, Agenda Item G3; and, was sent to each of the BOCC as part of this agenda item, J-2, for the 05/21/2oo8 BOCC Regular Meeting in Key largo, Florida. -2- 2. EPA 904-R-99-005: September 1999, states on page 19,"Qnals and other confined water bodies that demonstrated signs of eutrophication during the 1985 OFW study were listed as "hot spots" in Phase the II report of the Water Quality Protection Program (EPA, i9g3 Table 6-4.). 3. Eutrophication is defined as "the change to an ecosystem due to excess nutrients (literally "too much food) which can result from many causes, of which sewage is only one. 4. EPA,1993, Table 6-4 is entitled "Florida Keys Water Quality "Hot spots: Areas with Known or SMected severely degraded Water Quality. 5. EPA,1993, Table 6-4 is a list of 88 locations from north to south in the Florida Keys. The 88 locations in the Table 6-4 are not RANKED. a. In 1985, No Name Key was targeted for a take over by the commercial fishermen (O.F.F.). Protection of the existing rights of the commercial fisherman through zoning designations and the Grandfathering of existing uses was a critical element in 1986 Comprehensive Plan process. b. In 1985, the zoning designations of the Amended Plat of Bahia Shores, Amended Plat of Dolphin Harbour and the Amended Plat of Dolphin Estates, the only platted subdivisions on No Name Key, were changed no fewer than five times. Beginning in 1978 six residential structures were built on the 109 platted lots in the three subdivisions that share the canal system as `Bahia Shores'. The few existing residents fought hard to keep the residential zoning in place. C. In 1985, amidst the commercial fishing wars, numerous live -aboard vessels were using the northern portion of the Bahia Shores canal and the Dolphin Estates basin. The 1985 DER water samples, which lead to the EPA,1993, Table 6-4, were taken near the entrance of the Dolphin Estates commercial fishing basin (Garrett). If there was sewage contamination in the water at that time, it was likely to be the result of untreated discharges from the live -aboard fishing vessels rather than from the six residences, all of which had recently permitted onsite septic systems. 7. The canals system in the Amended Plats of Bahia Shores, Dolphin Harbour and Dolphin Estates are the textbook recipe for severely degraded water quality due to eutrophication. The system is made up of two long, deep, dead-end canals and a basis all of which has very poor circulation and is prone to accumulate weed wrack. 8. EPA 904-R-99-005: September 1999, states on page 8, "Fecal coliform bacteria normally die when exposed to marine waters. However, fecal coliforms sometimes are present in tropical environments in the absence of any source of fecal contamination (Hansen,1988). Therefore, it is questionable whether the existing standard is meaningful for marine systems (Dutka et al.,1974; Goodfellow et al.,197? Loh et al., -3- 1979• Normally when fecal coliform bacteria are present in marine systems, it is an indication of very recent fecal contamination"..."found typically in water near sewage treatment outfalls, dense concentrations of cesspits or livaboards. (Hansen,1988)" 9. EPA 9o4-R-99-005: September 1999, states on page i9,"That hot spot list was revised (Table 5) at an interagency workshop sponsored by South Florida Water Management District (April 16,1996). The revised list includes a relative priority ranking of the top 19 canal systems and other water that demonstrate poor water quality based upon literature and the collective experience of participants of the workshop. It also includes a brief description of potential solutions for each (water quality) hot spot." 10. The April 16, 1996 revised list, Table 5, is five pages in length; but. only the first two pages were included in the agenda item back-u-12 materials. The three missing pages (67 — 69) indicated that No Name Key was not included in the final list generated on April 16,1996 by the interagency workshop sponsored by SFWMD. These missing pages also show that the focus of the study and workshop was on "water quality concerns, sources, effects and solutions" and does not make recommendations on wastewater treatments. Wastewater treatment recommendation were the same for all of the top ranked 19 canal systems, namely "Install Best Available Technology OSDS (Onsite Disposal System) or WWTP (Wastewater Treatment Plant). 11. "Table 4-1. Hot Spots Identified by Prior Lists" is incorrectly identified as part of EPA 904-R-99-o05: September 1999, page 9 of the agenda item back-up materials; and, the hand written notations on page io are misleading. The three columns in "Table 4-1. Hot Spots Identified by Prior Lists are correctly identified as: (1) "Phase I R=rt" - which is the 1985 DER Outstanding Florida Waters (OFW) list which became the EPA,1993, Table 6-4 eight years later; (2) "March 1996 SFWMD Revision"- is the list that was revised at the 04/16/1996 interagency workshop sponsored by South Florida Water Management District which became Table 5 in EPA 9o4-R-99-005: September 1999, pages 65-69; and, (3) "Judy 1997 MOU List" is the 04/16/1996 revised list - which includes a relative priority ranking of the top 19 canal systems and other water that demonstrate poor water quality based on the collective experience of participants at the SFWMD workshop which later became the basis for the Memorandum of Understanding (MOU) presented to the BOCC on 07/16/1997 by CHM2Hill. 12. As indicated on page 10 of the agenda item back up materials, "Table 4-1. Hot Spots Identified by Prior Lists," `Bahia Shores' on No Name Key was not included in the final list in column three, "July 1997 MOU List" that went to the BOCC on 07/16/1997• 13. Page 12 of the of the agenda item back up materials., "Hot Spot Areas and Community Wastewater Collection and Treatment Systems Service Areas" correctly indicates No Name Key as a `Cold spot'. as SCNNK — History of Commerciai Electricity — Packet for New Commissioners—11/2008 May 21, 20o8 - Key Largo, Florida Monroe County Board of County Commission Meeting Agenda Item J-2 — Commissioner DeGennaro's Item PLEASE REAL? the Agenda Item Summary Sheets, which include: • A"1999 EPA Report" was "the underlying scientific analysis for the Monroe County Sanitary Wastewater Management [sic] Master Plan (BOCC approved 2000)" which is "attached for documentation"... "(pages 65 & 66)." • "Inadvertently, No Name Key was completely omitted from the County 2000 Wastewater Plan ... and became a cold spot by default." • Both of the above statements are false. Please see the four sections which follow: 1.) "The Real Table 5"; 2.) "Confusion Over Table 5"; 3.) "The 1999 EPA Report and the Monroe County Sanitary Wastewater Master Plan"; and 4.) No Name Key Was Included in the Monroe County Sanitary Wastewater Master Plan Planning Process." There was a five -page letter and six pages of documents submitted by No Name Key homeowner Mr. Robert Reynolds. Copies of these eleven (11) pages are included in this section, in the order they were submitted, and can also be found on the Monroe County website. Summary oL Meeting and Outcome: The BOCC directed Staff to initiate the procedure to switch NNK from a designated wastewater "cold spot" to a wastewater "hot spot" AND to include Name Key in the regional central wastewater system for the Lower Keys. Final BOCC Direction Based on the Minutes (Amended Motion): Staff was directed to "start the procedure to put No Name Key back into the Hot Spot Designation" AND to include No Name Key in the central sewering system. BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY 0 /e4 G r N# -- L !Meeting Date: Wed.. Mal 21, 200 Division: BOCC Bulk Item: Yes _ v No XX Department: Comm. Di Gennaro District 4 Staff Contact Person: Tamara Lundstrom 305 289-6000) AGENDA ITEM WORDING: Approval to designate No Name Key improved residential areas as a "Hot Spot" for inclusion in the regional central wastewater system for the Lower Keys. ITEM BACKGROUND: in September 1999, an EPA scientific study -based report was issued on the water quality and contamination of Florida Keys near shore waters and canals, as a part of the EPA Water Quality Protection Project for the Florida Keys. This document was the underlying scientific analysis for the Monroe Countv 'tar Wastewater Management Master Plan (BOCC approved 2000). This was a interagency cooperative effort led by the L . S. Environmental Protection Agency (E A), the L7... Army orp. of Fngineers, (ACOE), the Florida Keys National Marine Sanctuary through the National Oceanic and Atmospheric Administration (NOAA), the Florida Department of Environmental Protection (DEP), the Florida Marine Research Institute, the South Florida Water ;Management District (SFWMD), the Florida Keys Aqueduct Authority (FKA.A), and the Monroe County Department of Marine Resources. Attached for documentation: included in the EPA report (pages 65 & 66), was a priority listing of Florida Keys "ifot Spots" designated for central wastewater treatment based on the scientific study, which included a No Name Key improved residential area (Bahia Shores) as 447 on the list due to the water quality degradation found in the tested canal. Inadvertently, No Name Key was completely omitted from the C'ounty's 2000 Wastewater Plan (see pertinent excerpts included herein), and became a cold spot by default. This action will correct that omission. PREVIOUS RELEVANT BOCC ACTION: June 2000 — BOCC approved the Monroe County Wastewater Management Plan k_"F% I KAC. I lAI,KI' EIVI.L' IN I C'HAINGES: STAFF RECOMMENDATIONS: TOTAL COST: BUDGETED: Yes No COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes —No _ AMOUNT PER :MONTH Year APPROVED BY: County Atty _ O'VIB/Purcliasing Risk Management DOCUMENTATION: Included XXXX Not Required DISPOSITION: _ AGENDA ITEM # Z. Revised 2/05 h0ARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: Wed-, May 21 2008 Bulk Item: Yes — No XX -* A,yCNZ) r o 4e Division: BOCC Department: Comm. Di Gennaro District 4 Staff Contact Person: Tamara Lundstrom (305 289-6000) AGENDA ITEM WORDING: Approval to provide central sanitary wastewater service to the property owners of No Name Key through inclusion of the area in the Lower Keys Regional Service Area wastewater treatment and collection system. ITEM BACKGROUND: Pursuant to Board direction from April 16, 2008, staff has investigated and considered the request from No Name Key (NNK) residents for central wastewater sewer services. Early cost estimates from our partner, Florida Keys Aqueduct Authority (FKAA) indicate the total cost of providing standard central sewer service to NNK could be approx. $2.5 million. * Additionally, hybrid central sewer system proposals have been brought forward to be evaluated for overall feasibility on NNK and other outlying areas of the Keys that could possibly reduce installation costs by as much as a third. The direction of the BOCC should be to direct staff to include No Name Key within the central sanit4a wastewat r system plan for the Lower Keys Regional Service Area which currently encompasses Lower Sugarloaf Key through Big Pine Key. PREVIOUS RELEVANT BOCC ACTION: June 2000 — BOCC approved the Monroe County Wastewater Management Plan April 16, 2008 — BOCC approved expansion of the Summerland/Cudjoe/Sugarloaf Regional Wastewater System to cover design for Big Pine Key through Ramrod Key and Lower Sugarloaf Key. CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: TOTAL COST: TBD COST TO COUNTY: TBD BUDGETED: Yes _ No XX SOURCE OF FUNDS: REVENUE PRODUCING: Yes— No— AMOUNT PER MONTH Year APPROVED BY: County Atty _ OMB/purchasing Risk Management DOCUMENTATION: Included XX DISPOSITION: Revised 2/05 Not Required AGENDA ITEM # — PA944 Att, Bob, juli, Delaney, and Owen Reynolds A,�- 1ZFt>A14— . 2160 Bahia Shores Road, No Name Key, Florida 33043 Phone: (305)343-1646 Email: bob(d,)morrisandreynolds.com — Resident Address: 2160 Bahia Shores Road No Name Key, Florida 33043 Mayor Charles "Sonny" McCoy, District 3 530 Whitehead Street Key West, Florida 33040 Mailing Address: 14821 South Dixie Highway RECEIVED MAY 08 2008 Miami, Florida 33176 May nth 2008 CUPY Re: Central Sewer Discussion and Findings Meeting Dear Mayor McCoy, Good News! I write today to update you on a wonderful meeting that the residents of No Name Key who favor a central sewer connection (which as you know comprise the vast majority of homeowners) held last week, Apt -it 30th, at the Gato building. The purpose of this meeting was to discuss our findings and suggestions to allow a central sewer connection at a considerable savings that meets 2010 standards. It is our hope that our research and ideas will not only assist in making a connection on No Name as economically viable as possible but might also help hundreds of homeowners in the Lower Keys. Here is the promised update and issues discussed: = Attendees it ;, :l w l>:s :. ,t ol \ , o it ! c, nt dii, , i joii that L aunty Lngineering proceed rapidly with their research into No N,iinc hey ;i ++l nc,tion to the exp,:0 :;nil N!, Name recident, Tom Sinclair ;aid nio-,clf lovt ,vith the 1 1, discL1,1,, ,,,4 tlli. !c;l .Ibllri\ or :1 ';lllall pipe: 1tllSlcwatCr Solution, �iSnitli, lllV ?e?,'li�•.1 tl' ii 5l �.{' f STFG technolk-a • 1 1111,1411 ht, po,,illl,2 The following were in attendance: David S. Koppel, P.E., County Engineer/Division Director; Judith Clark, .Assistant County Engineer; Elizabeth Wood, Senior Administrator; Sewer Projects, Lisa Schieferle, Senior Engineering Technician — Wastewater; Mr. Date Z. Finigan, Director of Engineering and System Control Center, Keys Energy; Roy Coley, Director of Operations FKAA; Ray Shimokubo, Engineer FKAA; Don Hubbs, Assistant Department Director Engineering FKAA; Rodney Corriveau of The Don Craig Company; along with resident Alicia Putney, Mr. Sinclair, and myself. • Meeting Overview I opened the meeting by introducing Tom and myself again and reiterating the recent comments (thank you) during the County Commission meeting in April that the time had come to find a way to connect our homes to the central sewer system. I also reiterated that if the work required other infrastructural improvements then the time had come to assist our community in these regards as well and that the work we were discussing can and should lead to the long term protection of No Name as well as best serving the wishes of the majority of its homeowners. Mr. Sinclair then took the floor and provided an excellent overview of STFG and STEP technology, reviewed a large number of technical documents that detailed how these systems work as well as actual design and engineering plans for communities where STEP/STFG wastewater solutions are installed and function perfectly. Mayor Charles "Sonny" McCoy, strict 3 May 5th, 2008 STEP/STEG STEP/STI r di,,,w,,. d .it lenvtl► .i; a po-ihlc ,,,...t cfifectiv,, „ hition for Ni, well :., for other arc:-, in the I .ewer Keys. David Koppel madc it very, clear to the FKAA that the Comity wants this option reviewed, oitdied and bid for nur island and others lie cxplained that the County. is very interested in a cost effective snllition to ,dlo\ !ts many resldenl is i .11 ii:,;' It sounds as if STEP/STEG might solve our environmental concerns as well as the Mandate, It also may be a significantly lower cost than a traditional large pipe and a deeply installed gravity -lift gate system. I have attached an overview of STEP/STEG, as provided by the Environmental Protection Agency (EPA) which supports and actively advocates STEP/STEG but. in brief the approach uses a onall diameter pipe that is buried approximately two feet underground (a traditional sewer pipe. by comparison mieltt be buried at a depth of S to 10 feet) and moves wastewater to f1w ce►iiml pipe for tre.it gent. rill othe-, -,.aste (solids) would remain in septic type tank, which is handled, as is now the case. cleaned perhaps every 10 years or so by the homeowner haled on EPA estimates. Irokkcr is, v,,n hw,vk required f,,r .t CTFP/STEG _N .tcn� ►rtd this vv:,, di,.by } t, j . r;iC�► ii#i' .ii.d .9r1. i� ls;-ilO O.L�... 17 %ic'. I it> t,-i i li "d t._� 4wd ;rdx�i,.cd that thc:m: �a,ilhn,v to obt;iin l,Lls vv hi" 1 the 1­.:i:.:i flower =f ilic s,.:tern ore knoww Th,,°} :0,,, mentioned a uumhci of inicit2,ting ids•.►-, t. r,�ducc th.° cf th, i timt the\ .uld �' e x� ill Ijur ,ii: v\hen!if needed. The sizable savings from STEP/STEG are achieved amongst other reasons by the use of a smaller diameter, less costly pipe running at a much lesser grade and buried far less than traditional. The savings aside, the best news of all of this is that a STEP/STEG system unequivocally meets/exceeds 2010 standards and thus does what is best, and correct, to protect the environment that we so cherish. • Key Points & Comments During the meeting, I took notes and listened as all of the experts discussed the issues, options and merits of Mr. Sinclair's ideas. Some of the highlights from my notes and the discussion include the following: 1) Mr. Sinclair detailed 11, . thi. technology has been used in the TTnited States for some 40 years and around the world for 50 years. 2) Mr. Sinclair explained that the EPA supports small flow wastewater technology and that the EPA, in fact, funds the National Environmental Services Center located at the University of West Virginia. Extensive information can be found on STEP/STEG and its successful application by visiting http://www.nesc.wv_u,edu/smallflows.cfin. 3) 'vir. `;ioclair shared the details of a number of of this technoli,!,y vvith the �,!aup chat (riii,.ri,,, 1,�►f,�tl� irr":fudino ',uch a'; Port St. Lucie (3,000 homes) and Palm Coast (20,000 homes) Mr. Sinclair left design plans, engineering documents, a CD on the technology from the EPA and a stack of reference documents with David Koppel. Although Mr. Sinclair has no direct interest in the County wastewater project at this time other than wanting the best long term solution for his own home on No Name he was adamant that this technology will absolutely work in Monroe County and in particular on No Name Key. Based on the systems he has installed all over America. The mechanics and low costs sound very appealing indeed. Mr. Sinclair was also, equally, adamant that should alternatives such as E 1 systems (see page four) were installed as FKAA suggested he would happily support that approach. Mayor Charles "Sonny" McCoy, strict 3 May 51h, 2008 Key Points & Comments 3) Mr. Sinclair estimated, and much of the technical literature that he provided supported, that using STEP/STEG for a central sewer connection would be passible at a cost of 113 (30%4) of a traditional sewer. hi to ql►c, timvn about the possible cost, !Mr. Sinclair ;wi gestcd that he t elieve, th,il the gross cost would range anywhere between S 400,000.00 to S 500,11100,00 (as compared to estimates of a conventional cyOoin at perhaps_ S ",000.000 00 on No N.nne). Mr. Sinclair explained that aside from the smaller pipe and other cost effective features including lower installation costs, the lift station, that STEP`STEG use tvpically cost about S 30.000.00 while a cnrIventic'w' l ;1 ,tcm',, lift �,tati=an-, ►iIi"Ill Ding S ?;0.000 00 hti S 100,000 00 k,I l►wk' There was also a lengthy discussion about costs that the homeowner would bear in such a conversation and it was estimated that these costs would likely be between $ 1,000.00 and $ 2,000.00. These costs would include things like an `overflow alarm' (said to cost $ 55.00), a baffle and a lifetime filter (one time cost). Also within this range Mr. Sinclair said that part of the design work will include reviewing the existing septic tanks to determine whether they need to be retro-fitted (at a small cost) or replaced. To his figures the cost of powering the system would need added and this cost can only be estimated once the design details are known thus any comment or assumption at this point is purely that, a rough estimate. For example, from the discussion it sounds as if power costs might be in the range of S 250,000.00, perhaps less depending on how the ideas that the power company mentioned work. A figure of $ 310,000.00 for cross the Old Wooden Bridge was discussed but it was also noted that this figure was likely conservative (high) and to their credit Mr. Finigan from Keys Energy mentioned ways to reduce the cost through bidding and other ideas that have yet to be explored. It was agreed by all that the figure that Keys Energy had for the bridge cross was a conservative very, very initial figure. A, ^. ici1 ?lit' hii`hct cl►d rkAc.'I siho%c ,itnplN for `dis n1,,,i,,n' in tht`, letter. ptrh,gNs the ;t. laairli STU I JI 'T G And it rcyaired po k+ ci A o,,Jd be in the rrtli, or, p► rh:T_�, $ 750.000.00 for th,. -nt;ic l io1c,'t l.a tin, including the �tAntral connection .in,] pov rr steeds. Assuming that the 43 homeowners are asked to pay, as an example, a connection fee of the $ 4,500.00 I have heard has been common of late that would produce some $ 193,500.00 and thus the gross estimated capital cost after homeowner connection fee would be $ 556,500.00. Although I fully realize that these are very rough numbers, based on the discussions I heard and making the connection fee assumption, clearly the $ 556,500.00 is much less than the S 2,000,000.00 a convention connection might cost. Also as clear, although we understand, as I am certain that you do, is that homeowners would like the lowest connection costs possible along with a long term solution to protect the environment while meeting the 2010 standards. If, as has been widely suggested and publicized that it is deemed that connection fees throughout the Lower Keys are increasing above what is currently or was previously charged the net cost to the County would, of course, decrease. Recently I've heard $ 8,000 (as well as higher figures!) as possible connection costs for Monroe residents and using this figure, again strictly as an example, 43 homes would produce $ 344,000 towards the gross cost and thus could reduce $ 750,000 to S 406,000. Dramatically less than a conventional system. Again, we realize that much work needs to be done to finalize figures, and t ask you to also, please, realize that fact as well, but the key point to all of the discussion over possible costs, and my comments above, is that STEP/STEG may be much, much less costly on No Name (and we hope in other places). 3 Mayor Charles "Sonny" McCoy, strict 3 May 51h, 2008 Key Points & Comments 5) During our meeting, Mr. Don i•lubbs of FKAA suggested that we should also consider what he called El, Grinder pump systems. After nearly two years of asking for cost effective ideas I was pleased to hear FKAA open to alternatives such as EI, STEP and STEG for our central connection needs. Although Mr. Sinclair made it clear that he would be happy to have such technology and was familiar with same, having installed these on many occasions, he explained that the power needs for the pump that El requires is likely greater than homes on No Name can supply. He felt that in our case they would not work, unless cornmercial power was brought to each home. fn fact, Mr. Sinclair advised FKAA that if they opted to install a El. Grinder System that he would be happy to `cut a check for one today' as lie believes them to be a reliable, cost effective approach that should be considered. FKAA was energetically encouraged by Mr. Sinclair and myself to consider any/all such ideas as part of their plan/design work so that a cost effective solution can be found for our island. 6) 1)urinlp ,,w ullctin., the FKAA asked for clarification on whether No N;_inw is d,,,,i'a,nnted as a Hot Spot, the desi!,nation that they Ivnicaliv desire so as to conduct dcsi«n :ind pricing t,, 71C Wolf A few points on this topic are important to consider from the session and these include: A)', o Name recently been very vo it hi rcqu�,­ttnlp to h:lvc r=, dc-.,i-,ration n Hot Spot and N""111d lil'o to 1Jiii-%L- thi" A, „011 11ti l �l��;ihl_c NI'm that it is chair that achicvin:, this designn!i,,n i the lci Ili :(l •n11111 Wil ;- hell that .t GV1111 1! •,c'Ncl 011110i,'lion is the only viable solution for our iAaa'.d. we would ask the BOCC to please affirm this designation at this time. Please. 11) tiott! lh;it residents ha\, n+nv It;irnetl that No Name was (and we believe still is) designated as Hot Spot in the EPA% 1993 report thol cko,,Judvd that our waters suffered from vvierelr degraded water quality due to scientific findings of fecal matter in our canals and near shore waters W the R;:hi 1 Sll,rti ,111�{livi .ic!n. I have attached a copy of the EPA's report. ( &ry -r- Q'°Cpy, U " Perhaps this is good news (if finding that we have had and might still have an issue in our waterways some 15 years later can be called good). Vuch, we actually believe that No Name is, today. a Hot Spot and althonpli we were lef) off the wastewater master plan for reasons we cannot .-et billy explain. it appears that No Name was very clear, and repeatedly a defined Hot Spat ­11I litlrlwitl,lci id till, t:;: c c th, i".1111,0111111" 110CL ioctml ,-�S,)iild he lii11-4111 to ilic I KAA ;Ind oth-r, li> li the 4� 1:lt"',.1iCt 'Mitt Iwlil(:o" in the hinilk:d till►;that %%, hlisv ' iclt ivillainini'.. Rix.. i,l !,:oppel l:indk, thiinkfiilh. FKAA that lie v..ints FKAA to move forward in evaluating central sewer connection alternatives including STEP/STEG. El and others. That said, the FKAA made clear that having, No Name designated as a Hot Spot will help FK 1 A lirlp its ,ind the Uotml,. V 11ch. 'U'ain, we ask for your affirmation/designation of No Name Key as a Hot Spot at this time. Plca,,e. 7) Given the costs involved, the residents of No Name Kerr are committed to being w olved in seeking, the po,,ibie term do ;ii,n ih;it ineets the mandate and doe, so at the I1)west cost possible. F\cr,.on:' in the mk,,'1H1w finds! Occ o l that %tc' 'A'Int to ,ontintw to be ail ih.' hi,1,!ing ;iild J,i iqn nod, in fact, .aid tll:it the % supported these sentiments. fn fact, as a next step Mr. Koppel has asked Mr. Sinclair to provide a fist of questions of the information he needs to provide the County an accurate estimate of costs and requirements associated with a STEP/STF,G system. Mayor, whether the engineer/designer's suggestion is STEP/STEG, El, a traditional central sewer connection or some other version of a central connection, the vast majority of homeowners on No Name Key want and need the Board to approve, please, a central connection. At this time, we would a-v' L are Mayor Charles "Sonny" McCoy, ,..,Irict 3 May 5th, 2008 ask that you a,,,ain. doi ,;nwitc No N;mic Kcia hot spot and in doing ° n addre« awl concerns liar protecting the environment for eent.•mHons to enmc: as well as l,rIv►dine basic infra,Jnicture improvements to our homes as is the case for the majority of Monroe homconvners. Ills` a'iltlion hill► 1wi11 i�i!` tf`l Ater pollution. rt'iltJ�int' �reilllii�it L '__'=� and our Cz11'1?t)11 i:r;itl�rint anal iliihro=. ifi ether dan devices has thiinkfully become a k(w•. critical. focus of our •.a ;;,�;y, � i', Nl�t'It' :irti` t1U`=�, -,,ot i:erw-, -md oi-portunitiel. MOIL, t", ident than on nur lovely No Nl .-w _ Key. Ti," z,l�l<►= >i iitir i;kund, anal thc iC?CC_ ill f-i,t et'eryj)n� :it c,ory le%c1 .!'this di-cussion and r,�ce:- have a iniique. rare. opj,r,rtunit�. to set .in example for other~ in fnlln�� 'ltil, iiiil,rn^rini* , nr c! , m in ,u9u mi We ask you to embrace this opportunity and to help No Name Key and its residents. Please. Please contact me with any questions related to the recent meeting, the desires of the vast majority of homeowners on No Name Key, or the plight that my family and our neighbors face over these issues and in meeting the 2010 standards. I than4Ivou, again. for your consideration as well as your topig:s. VAry t J,ukv-gours, Bob Rttyi$ )Ids TelephUe # 305.343.1616 bobia�morrisandreynoids.com Enclosures fie; 4,f.',i i ..151 "l 1. it „ tit +,_. i�o.[t,y, i );-.t! r..[ k Honda lhcys Marathon Airport 9400 Overseas Hwy, Ste.210 Marathon 33050 Commissioner Sylvia Murphy, District 5 Darnaron Building, Suite 11 99198 Overseas Highway Key Largo, FL 33037 Corrunissioner Dixie Spehar, District 1 500 Whitehead Street, Ste 102 Key West, FL 33040 Commissioner George Neugent, District 2 25 Ships Way flig Pine Key, FL 33043 Nts, Suzanne I lutton, County Attorney County Administrator's Office 500 Whitehead Street Key West, FL 33040-6581 Mr. Andrew l rivette Division Director — Growth Management Marathon Gov. Center 2798 Overseas [fury Marathon, FL 33050 Mr. David S. Koppel, P.E., County Engineer/Division Director Utilities/Wastewater Department Monroe County 1 100 Simonton Street Key West, FL 33040 leadership and vision on these very important A "e'r QUW'ty "OHt S SuS"". Areapi with k ,INxted'sSed evm,,ejy degraded Water QIW,t _nown or y (From_ U 'PA P-S rcViOn, Marvb 1996 by a,-,, fnteragev paw.1, Wito OcOaf) RAef Marina Phase I afid DiSpatch Creok -Wft-"�J0-44eY'OR4- CIELF-11TO-PURCHASED BY STATE I! Canal "Oxtotl C-Ove and Lake SUrf'riSe Subdivisfors C'�ross Key Watervvrays poyl Largo Key Largo Fishery Marina 0 Marian Park an(] Rock Hart)ot Pffalc- Coove OSubdivision 8 IY Wit N -'kPn '. and Nod Blue watef, Trailer Park Harnmer point, Mariva Allantic (ges K'ey Color-ly" 'divisjofl PlafltafiOH Yacht Harbor venetiail Shores Holiday Isle f4pst)rl F`s-h H 0, NeVV N E VV NEW 4 Port Anfigtia Mactin Beactf Dead) Cjalomsxl ("Ove ma -rime Kampgrk)t1r,,(j;.� Of Atvnerira Vjarij,a L�'-)rig "Y VSlalc-� a"d Cif Ot Lavtg)na 3 U OuIr Joor Hesc)rt.,,3 of An, efit z4 GC4 Ch Key 3 2 Beat, mers marina .34 INJECTION WELL ' 11-4oco Plum ajj!-.eWpy N E IN Key Colony !�-,jtyjivisiorja 36 Spa -Air Xi Stripm-A Curial vvinfv'� Dock avo 84'mvo hfiarinn 'Boc"ilKay IvIzaim:1 Bf)(A Kev Harbor drainage area MM'atfiofi Seafood �.j Ai LittIt? Venjt,;,� NEW ptel"!>- 199:i' CL 6A le- L&MVAU Re Bey Largo Key Largo X*r"O Mainland Key Larqt) Key Largo no Kc�v Largo Key Largo Key Largo 0 V Largo 1 , ' Ki-y Kew 1-4� IrqO (IA-11tatior? Key PlAntation Key 3."Aatinn Key P"aOtabOn Key W.; n 0 1 C-'.- y K e v `-4)POV MRteC'Srv4),e Key LIPPef- Matecumbe Key IJPPeF Mat9CUmbe Key LOWef Matecurnbe KeV MaWcun-,be. Kv'y LOWOr M-atecumbe Ke�,, LOwOf MaNcurnbe Kev F'ienla. tCe'v Long Key Gonch Kev rat Deer Key at Ueet vaf"R Kov, Wmmlhcjr.) vaca 'Key *,;yi K!;iy vaca Kev '/*'Ica Keq K VaGa Key Vasa Kov V a t,,- K --, y Table 5. continued Pa�5� a,of- CU b 46 Knight Key Campground Knight Key 46 Sunshine Key Marina Ohio Key 47 Bahia Shores No Name Key 48 Doctors Arm Big Pine Key 49 Tropical Bay Big Pine Key so Whisp ring Pines Subdivision Big Pine Key 51 Sands Subdivision area Big Pine Key ,52 Eden Pines Colony Big Pine Key 53 Pine Channel Estates Big Pine Key 54 Cahill Pines and Palms Big Pine Key 55 Pori Pine Heights Big Pine Key .56 Sea Camp' Big Pine Key 57 Coral Shores Estates Little Torch Key 58 Jolly Roger Estates Little Torch Key 59 Breezeswept Beach Estates" Ramrod Key 6 0 Summerland Key Fisheries Summerland Key 61 Summerland Key Cove Summerland Key 62 Cudjoe Ocean Shore Cudjoe Key 63 Venture Out Trailer Parl< Cudioe Key 64 Cutthroat Harbor Estates' %,,Udjoe Key 65 Cudjoe Gardens Subdivision Cudjoe Key 66 Orchid Park Subdivision Lower Sugarloaf Key 67 Sugar Loaf Shore Subdivision Lower Sugarloaf Key 681 Sugar Loaf Lodge Marina" Lower Sugarloaf Key 69 Bay Point Subdivision Saddlebunch Keys 70 Porpoise Point 8 Big Coppitt Key 71 Seaside Resort Big Coppitt Key 72 Gulfrest Perk® Big Coppitt Key 73 Boca Chica Ocean Shore.- Geiger Key 74 Tamarac Park Geiger Key 75 Boca Chica Naval Air Station Baca Chica Key ist" Haven Su-10— DELETED ee e e e 14 76 Boyd's Trailer Park Stock Island 77 Alex's Junkyard Stock Island 78 Ming Seafood Cow Key 79 Oceanside Marina Cow Key 80 Sale Harbor 'Cow Key Key West Landfill Key West 82 House Boat Row Key West 83 Garrison Bight Marina Key West 84 Navy/Coast Guard Marina and Key West Trumbo Point Fuel Storage Facility 85 Truman Annex Marina Key West 86 Key West Sewage Treatment Plant Outfall Key West 87 Key West Bight NEW Key West 88 Key West Slormwater Discharge NEW Key West Potential water quality` degradation. No data available. 66 WATER QUALITY CONCERNS IN THE FLORIDA KEYS: SOURCES, EFFECTS, AND SOLUTIONS PREPARED BY WILLIAM L. KRUCZYNSKI PROGRAM SCIENTIST FLORIDA KEYS NATIONAL MARINE SANCTUARY WATER QUALITY PROTECTION PROGRAM SEPTEMBER 1999 Table 4-1. Hot Spots Identified by Prior Lists. i I r- r ;,' I .� ) r Location Phase 1 Reri March M ch 1996 SFWD Revision _1� 1997 MOU List No. She No. Site _ No l Site Key Largo Key Urgo _ _ Key Urgo 1 10ce2n Reef Marina l 10cean Reef Marina - 23 10cean Reef Manna ? lPhasol and Dispatch Creek 2 - Phase I and Dispatch Creek 3 Worlds Beyond So. Fla. Mainland 4 C I l i Cartel -- 5 Sexton Cove dr Lake Surprise S/ 3 C- I I 1 Canal- 1 -+Sexton Cove dt L. Surprise S/D 3 'Cross Key Waterways 5/D "- 6 Pirate Cove Subdivision 18 W "ken, Blyttken and Nod Key largo - 4 — Se=too Cove & L Surprise S/D"' Key Largo 6 ^Cross Key Waterwa s S/D 5 'Cross Key Waterways S/Dm _ Ke Lar o Ke 7i Port Largo _fi 7 8 Pon L_ o Key Largo Pishetg Marina Marian Park &Rock Harbor Est. _ 8 Ke Lar o Fish Marina _L_zrgo __ Ke Lae o Key 9 Marian Park do Rock Harbor Est. Id Pirate Cove Subdivision 9 Pirate Cove Subdivision 11 12 W rtken, Blynken and Nod Blue Water Trailer Park 10 Wyuken, Blyaken and Nod"" 11 Blue WaterTrailer Park 13 Hammer Point 7 Plantation Key Colon _ -r Indian Waterways y 13 Hammer Point 12 Bruner Point Key Largo 14 Campbell's Marina 13 _ Ca beli's Marina Plantation Key 15 Tropical Atlantic Shores S/D 14 Tropical Atlantic Shores S/D Plantation Ke IG IPlantation Key Colon • 15 Plantation Key Colon • Plantation Key 17 Indian Watawa s 16!Indian �Waterways Plantation Key 18 Plantation Yacht Harbor 17 IPlantation Yacht Harbor Plantation Key 19 Treasure Harbor 18 !Treasm Harbor 12 Venetian Shores Plantation Key 20 Venetian Shores 19 1 Venetian Shores Windle Key lslamorada Istamorada 21 Holiday Isle Resort 20 Holiday Isle Resort -- - 21 lslamorada Fish House 22 Lorelei Restaurant _ 1 - Upper Mat 23 Stratton's Subdivision L. Mateciu Ke L. Matecumbe Ke _ 22 Port Antiua 23 White Marlin Beach 24 Pon Antigua 25 lWhite Marlin Beach 8 Port Antigua 8 White Marlin Beach L- Manectrnbe Ke1 24 Lower Matecumbe Beach 26 Lower Matecumbe Beach 8 Lower Matecumbe Beach L. Matecumbe Kc Fiesta Key 25 lCaloosa Cove Marina' 27 Caloosa Cove Marina* ji,4Lon Ke Estates _ 26 Kampgroumds of America Marim 27 Long Key Estates/City of La n 28 29 of Ater cMarina I.ang Key Long Key Estates/Ci of Layton— Long Key 28 Outdoor Resorts of America 30 Outdoor Resorts of America Conch Key 29 Conch Key 31 Conch Keym 9- lConch Key 'at Deer Key 30 31 Coco Plum Beach• Bonefish Towers Marina• 32 Coco P)tttn Beach* Fat Deer Key 33 Bonefish Towers Maritsa" Fat Deer Key 32 Key Colony Beach WWTP tar - - Fat Deer Key Vaca Key 34 Coco Plum Causeway 33 Key Wony Subdivision* 35 Key Colony Subdivision* 36 Sea -Air Estates Vaca Key_ 34 Sea -Air Estates Vaca Key 35 90th Street Canal 37 '90th Street Canal - - Vaca Key 36 1 Winner Docks 38 Winner Docks Vaca Key 37 lCity Fish Market 39 Cit Fish Market Vaca Key 38 Faro Blanco Marina 40 Fare Bianco Marina Vaca Key Vaca Key 39 Boot Key Marina 41 Boot K __ey Marina -� _ — -- --� — - 40 Boot Key Harbor _42 Boot Ka Harbor"' Vaca Ke 41 Marathon Seafood 43 Marathon Seafood - Vaca Key 44 ILittic Venicet=r _ Km� Knight Key 42 Jht Key-Cat�rn gouad 45 Knight Key Camper-oundtn' Qhio Key 41 !.Sunshine Key Marina 46 'Sunshine Key Marina Varrx Key 44 Bahia Slu,res t; ti.,tta Shores IS Pine Key 4a iDoctont Ain 48 'De"ers Arm- Big Pine Key _ -- Big Pine Key 46 !'cal Bay- -._ - 49 Tropical Haym 4 ;Doctors Arrn - 4 lambert 4 ,"rmprcal Bay €3 ;a Oj m t N o E 0 m "c. wa 164 V)"C OIL CQ to 4J Nil iw- Cd )or 4J 444 ,- CIS " IV IV WHIM 4W i} 0 x MINUTES OF THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS Regular Meeting Board of County Commissioners Wednesday, May 21, 2008 Key Largo, Florida 87 A Regular Meeting of the Monroe County Board of County Commissioners convened at 9:00 A.M., at the Key Largo Library. Present and answering to roll call were Commissioner Mario DiGennaro, Commissioner Sylvia Murphy, Commissioner George R. Neugent, Commissioner Dixie M. Spehar and Mayor Charles "Sonny' McCoy. Also present at the meeting were Roman Gastesi, County Administrator, Debbie Frederick, Assistant County Administrator; Suzanne Hutton, County Attorney; Isabel C. DeSantis, Deputy Clerk; County Staff, members of the press and radio; and the general public. PRESENTATION OF AWARDS Presentation of Years of Service Award for 20 years of service to Priscilla London, Sr. Safety Administrator, Employee Services. Presentation of Years of Service Award for 10 years of service to Monroe County to Eduardo Capote, Maintenance Worker, Unincorporated Parks & Beaches, Public Works Division. Presentation of Mayor's Proclamation Proclaiming the Month of May as Motorcycle Safety Awareness Month. Presentation of Mayor's Proclamation Proclaiming the Week of May 17cn through May 23,d 2008 as Safe Boating Week. Presentation of Mayor's Proclamation Proclaiming Baptist Health South Florida as an Outstanding Employer. Presentation of President's Exceptional Leadership Award to Jerry O'Cathey as the outgoing Florida Society of Certified Public Manager's Program President. ADDITIONS, CORRECTIONS, DELETIONS Motion was made by Commissioner Spehar and seconded by Commissioner DiGennaro granting approval of the Additions, Corrections, and Deletions to the Agenda. Motion carried unanimously. Motion was made by Commissioner Murphy and seconded by Commissioner DiGennaro to include on today's agenda - Sounding Board Item K.2 in regards to the contract for the ADA Compliance Assessment for Circuit and County Court facilities - Jimmy Morales. Motion carried unanimously. FIRE & AMBULANCE DISTRICT 1 BOARD OF GOVERNORS The Board of Governors for the Fire and Ambulance District I convened. Present and answering to roll call were Commissioner Sylvia Murphy, Commissioner George Neugent, and Commissioner Mario DiGennaro. Absent were Chairman Clark Snow and Mayor Norman Anderson. James Callahan, Acting Fire Chief addressed the Board concerning approval of a Settlement Agreement between Monroe County Fire Rescue and Chelsa Call account #90401-01. Motion was made by Commissioner Murphy and seconded by Commissioner DiGennaro that Chelsa not be charged for the transport. Motion carried unanimously, with Chairman Clark Snow and Mayor Norman Anderson not present. There being no further business, the meeting of Board of Governors for the Fire and Ambulance District I, was adjourned. The Board of County Commissioners meeting reconvened with all commissioners present. WASTEWATER ISSUES Dave Koppel, County Engineer provided to the Board a written Status Report Update concerning the wastewater projects. Charles Fishburn, representing the Key Largo Wastewater Treatment District (KLWWTD) made a presentation to the Board concerning the progress of wastewater projects in the KLWWTD. The Board discussed providing central sanitary wastewater service to the property owners of No Name Key through inclusion in the Lower Keys Regional Service Area wastewater treatment and collection system. The following individuals addressed the Board: Burke Cannon, representing Hammerpoint Home Owner's Association; John Hammerstrom, David Eaken, Kathy Brown, Mary Bakke, John Bakke, Julie Reynolds, representing No Name Key; Brad Vickrey, Beth Ramsay-Vickrey, and Bob Reynolds. Suzanne Hutton, County Attorney discussed the matter. After discussion, motion was made by Commissioner DiGennaro and seconded by Commissioner Spehar to include No Name Key in the central sewering system. During further discussion, the motion was amended by the second with the maker accepting directing Staff to start the procedure to put No Name Key back into the "Hot Spot Designation". RoIl call vote was taken with the following results: Commissioner DiGennaro Yes Commissioner Murphy No Commissioner Neugent Yes Commissioner Spehar Yes SCNNK — History of Commerc` "Electricity — Packet for New Commis ers — 11/2008 The Real Table 5 • The full name of the "1999 EPA Report" "Water Quality Concerns in the Florida Keys: Sources, Effects, and Solutions, prepared by William L. Kruczynski, Program Scientist, Florida Keys National Marine Sanctuary Water Quality Protection Program, September, 1999•" • The full name of Table 5 of the "1999 EPA Report" "Table 5: Florida Keys Water Quality "Hot Spots": Areas with Known or Suspected severely degraded Water Quality (From: U.S. EPA, 1993, Table 6- 4), as revised on March 19, 1996 by an Interagency Panel." • The "1999 EPA Report" was presented to the Monroe County BOCC on o1/2ol2000 and can be downloaded as a 118-page .PDF file. The document begins on page 5/118 and ends on page 107/118. http: //www.minutes-monroe-clerk.com/weblink/docview.aspx?id=9078 W-A , X1 4 7 Ki !,. 18 i (4 22 24 25 2r" 27 2 8 29 30 �'2 33 40 .41, 42 43 4�_ keYs -4ater Quajiy o,,O, s", A Susr . _reas with Kno - Xxted severely degraded Water Qual,ty (Frar Wn or 6-4, as reused oil 1\48rr 19-96 by an Inte T.S. EPA, 11-493, 'rabje ragent--y pa..j. Ocean Reef Marina Phase I and Dispatch Creek I Canal DELFTED-PURCHASED ay Sexton Cove and Lake SUfPfi'e Subdivisions Cross Key Waterways Subdivision Part Largo Key Largo Fishery Marina Marian Park ar)(i Rack Harbor Estates Pifaie Cove Subdivisior, Winketi, Blynken ` and Nod -Blue Water Traijer Park, Hammer Point Gaff0pil's Marina Tropical Atlantic, Shares subdivision Plantation Key Coir.;r;va indian Waievrvays Plantation Yacht 1-fark)o, Venetian) Shores Holiday Isle Resort Isialmorada Fish Hcaure N E W Lorelpi Ro-,slaurant N, E IN Stratt,on1g: Sub(u�,jsj(,-,,n NEW Port Antigua White Marlin Beach Lower Matecurnbe Beach -loos., Cove Marina Kampgrouncls ol Arnerica �Aa,,-jj-ta Long Key Estates and City of Layton' &A jor "CSOMS of America Conch Key Olurr4 Beach areaon tislo -4 Towers Maril-laa 'Ma PIUM Causeway Key Colony ,;Ubdivi, -Sea-Air Estates 90" Sireel rarjCj Winner i"4,41000'Af F' Nh Market F-:31'0 Bianla Marina 3-11(A Key Marina Boof Key Harbor drainage area 11-ittle Veniul'p Key Largo Key Largr, STATE INJECTION WELL NEW NEW Mainland Key Largo Key Largo KY L4fgo Key Largo Key Largo Key largo Key Largo Key , Largo Key t-girgC. Key Largo Plantation Key Plantation Key Plantation Key Piwitation Key Plantation Key Plantation Key Windley Key i„iP.Per Mate timbe Key Upper M"Iecumbe Key Upper Matecumbe Key LOwef MatecUMbe Key I-. ' K4,V0, rwiafecumtle- KS5.-V Lower MatectilInbe Key - Lower Matecumbe Key Fiesta Key Long Key oeicfi L()nq X"ejy Key Fat Deer Key Fat Deer Key at Deer i<ey Vac., Key (Marathoni Vaca Key Vasa y Vaca Key Vaca Key Vara Kia&� y Vaca Key Vaca Key Vaca Key Vaca Key 6 2S Table 5. continued a# 45 Knight Key Campground Knight Key 46 Sunshine Key Marina Ohio Key. 47 Bahia Shares No Name Key 48 Doctors Arm Big Pine Key 49 Tropical Bay Big Pine Key 50 Whispering Pines Subdivision Big Pine Key 51 Sands Subdivision area Big Pine Key 52 Eden Pines Colony Big Pine Key 53 Pine Channel Estates Big Pine Key 54 Cahill Pines and Palms Big Pine Key 55 port Pine Heights Big Pine Key 56 Sea Camp" Big Pine Key 57 Coral Shores Estates Little Torch Key 58 Jolly Roger Estates Little Torch Key 59 Breezeswept Beach Estates" Ramrod Key 60 Summeriand Key Fisheries Surnmeriand Key 61 Summerland Key Cove Summerland Key 62 Cudioe Ocean Shore Cudioe Key r)3 venture Out Trailer Park Cudioe Key 64 Cutthroat Harbor Estates' Cudioe Key 65 Cudioe gardens Subdivisiono Cudioe Key fib Orchid Park Subdivision Lower Sugarloaf Key 67 Sugar Loaf Shore Subdivision Lower Sugarloaf Key 68 Sugar Leaf Lodge Marina' Lower Sugarloaf Key 69 Bay Point Subdivision Saddlebunch Keys 70 Porpoise Point Big Coppitt Key 71 Seaside Resort Big Coppitt Key 72 Gulfrest Parka Big Coppitt Key 73 Boca Chita Ocean Shores Geiger Key 74 Tamarac Park Geiger Key 75 Boca Chica Naval Air Station Boca Chica Key DELETED Reeeeen-KeY 76 Boyd's Trailer Park Stock Island 77 Alex's Junkyard Stock Island 78 Ming Seafood Corr Key 79 Oceanside Marina Cow Key 80 Safe Harbor Cow Key 81 Key West Landfill Key West 82 House Boat Row Key West 63 Garrison Bight Marina Key West 84 Navy/Coast Guard Marina and Key West Trumbo Point Fuel Storage Facility 85 Truman Annex Marina Key West 86 Key West Sewage Treatment Plant Outfall Key West 87 Key West Bight NEW Key West 88 Key West Stormwater Discharge NEW Key West 9 Potential water quality degradation. No data available: M. wi a � Va so Va soy I � cgs Q ra to � CD0 =W N soy r F,: c g�m�.+ 0 a E a� sc !0 y� Lito so -a 25 y of c0�y 67 E E E w rn sn m v: ''22e are vg ® v 'w v c�3- c� c�� ® ep m m y m ichi > E r i= 441 CL�RL w 90. 3 # t > Q 4 vs Ee9 .. 0 -a v► tee ` S o t 9) in ;a .50 .0 m to .90 ve N an m ie 0 oAd o ue v,cC a s ��o V Q m 'a g L.e c 0 � 0 co m Q m Ni vl aN N ® f m .0W Z" 6 :°O« Z`O 2 0 t= O 6 1 ' in sia for v+ tp �p o u► CO are ca: ti Tvc�a fm 1uu L3a D� �5 C8e CL .� 0 C �g I cc as V 2 CL 21 00 rA sn W ew � 0 W co ED �j C�7 SCNNK — History of Commercial Electricity — Packet for New Commissioners — 11/2008 The Confusion Over Table 5 No Name Key was never categorized as a wastewater "Hot Spot." It was included in a 1999 EPA Report that listed potential "Hot Spots"-- although it was dropped from the final listing. Water gualitu "Hot Spots" are NOT the same thing as wastewater "Hot Spots." The former were originally listed in relation to potential degradation of nearshore waters, the latter were developed as a basis for planning sewage systems. Please see the previous section, "The Real Table 5," and the next section, "1999 EPA Report and the Monroe County Sanitary Wastewater Master Plan Planning Process." The Basis of the Confusion Over Table • Table 5 is 5-pages in length (pages 65-69) and can be found in the previous section, "The Real Table 5." • only the ,ftrst 2 pages (pages 65 & 66) were submitted as Back-up materials for J-5 at the May 21, 20o8 BOCC meeting in Key Largo. • The Agenda Item SummM ,sheet (previous section) describes Table 5 as having Qnlu 2 paves, "EPA Report (pages 65 & 66)." (See May 21, 2008 BOCC Meeting in Key Largo.) • The first two pages of Table (pages 65 & 66) lists the 88 sites that were sampled as part of the 1985 FDER Outstanding Florida Waters (OFW) Study and was the Iist prior to the revisions made by the panel of experts_ at the "March 19,1996 Interagency `Hot Spot' Workshop." • The missing ,final 3 Voges of Table 5 (pages 6�7, 68 & 69) are the revised (new) list and does NOT include No Name Keu. Each of the three pages are clearly marked as the "Results" of the March 19, 1996 Interagency `Hot Spot' Workshop." (See previous section, "The Real Table 5".) SCNNK —History of Commer 'Electricity —Packet for New Commi, ners—11/2008 1999 EPA Report and the Monroe County Sanitary Wastewater Master Plan Planning Process 1. March 1985 FDER Study to the Environmental Regulation Commission on the proposed designation of Florida Keys as an Outstanding Florida Water, Volume III, and 44 pages. The U.S. EPA subsequently refers to this report as the "Phase I Report Site". • 1985 Data is Collected One sample of water, on one day, was collected from Station #119 @ about half way down the Bahia Shores subdivision canal on No Name Key. The sample was collected from the bottom @ 16.5 foot depth. [D.O. levels = o.00. Fecal Coliform = 41 colonies/too ml water.] For a frame of reference, the beaches in Monroe County are closed to swimming when the Fecal Coliform level is 200 colonies/too ml of water. • 1985 Existing Conditions on Land as an FYI Three (3) single-family residences existed on the Bahia Shores subdivision canal in 1985, one of which was owned by Francisco Pichel who was using his property and the vacant lots to the south for a commercial fishing enterprise. Several other commercial fishing boats were tied up to vacant lots along the canal. On March 18, 1985 the Planning Department announced the proposed new zoning districts for the 1986 Comprehensive Land Use Plan. Between March and November of 1985, the Bahia Shores subdivision was rezoned three times: from Sparsely Settled to Commercial Fishing to Sparsely Settled to Improved Subdivision. The residents fought for a residential zoning and the commercial fishermen fought for a commercial zoning. • NO New Data 2. 1993 U.S. EPA Study, "Water Quality Concerns in the Florida Keys: Sources, Effects, and Solutions" prepared by William Kruczynsld included "Table 6-4: Florida Keys Water Quality "Hot Spots": Areas with Known or Suspected severely degraded Water Quality, 2 pages. The unranked list of 88 sites in the Florida Keys was generated entirely from data in the 1985 DER Study (which included 1 water sample from the Bahia Shores subdivision canal on No Name Key.) The Bahia Shores canal on No Name was listed at No# 44• Every site m=led in the 1985 FDER Study was included in this list. t� �, SCNNK — history of Comme? I Electricity — Packet for New Commi mers — 11/2008 • NO New Data 3. March 19, 1996 - SFWMD hosts the "Interagency Florida Keys Water Quality `Hot Spot" Workshop" which was composed of a panel of experts representing a multitude of federal, state and local agencies including U.S. EPA, U.S. ACOE, NOAA, DEP, FKAA, and Monroe County Marine Resources. • NEW Data The 1993 U.S. EPA Study's Table 6-4: Florida Keys Water Quality `Hot Spots': Areas with Known or Suspected severely degraded Water Quality was revised and updated by the panel of experts at the "March 19, 1996 Interagency `Hot Spot' Workshop". The new list was generated based upon the literature and the collective experience of participants of the workshop. The Bahia Shores canal on No Name Key was not on the new (revised) list. • NO New Data ¢. 1999 U.S. EPA Study, "Water Quality Concerns in the Florida Keys: Sources, Effects, and Solutions" prepared by William Kruczynski included "Table 5: Florida Keys Water Quality `Hot Spots': Areas with Known or Suspected severely degraded Water Quality, (From: U.S. EPA, 1993, Table 6-4, as revised on March 19, 1996 by an Interagency Panel". • NEW Data 5. "The Monroe County Sanitary Wastewater Master Plan took a fresh look at all areas of the Kevs and evaluated them based upon their potential nutrient addition to receiving waters, number and density of houses, economics, and other environmental considerations. Service areas were ranked based upon potential for environmental harm and designated as a "hotspot for wastewater planning" or a "cold spot for wastewater planning." Hotspots could best be served with central collection and treatment systems. Cold spots could best be served by onsite treatment systems. No Name Key was identified as a cold spot in the Wastewater Master Plan." (William L. Kruczynski, Program Scientist, Florida Keys National Marine Sanctuary Water Quality Protection Program, November 22, 2008.) 6.2000 Monroe County Sanitary Wastewater Master Plan • "Exhibit 1-2: Study Areas in the Lower Keys Area for the Monroe County Sanitary Wastewater Master Plan" shows No Name Key within the boundary of the "Big Pine Key Study Area # 11." • "Exhibit 6-1: Hot Spot Areas and Rankings - Lower Keys Study Area" does NOT include No Name Key in the list of "Hot Spots". • "Exhibit F-1-B: Hot Spot Areas & Community Wastewater Collection & Treatment System Service Areas" shows No Name Key within "Big Pine Regional Wastewater Management District and as a "Cold Spot." oI o� � SCNNK — History of Comm 'Electricity — Packet for New Comm' hers—11/2008 No Name Key Was Included Monroe County Sanitary Wastewater Master Plan No Name Key was included in the Monroe County Sanitary Wastewater Master Plan planning process. To suggest otherwise is ludicrous. Listed below are just a few of the numerous locations in the Master Plan that demonstrate No Name Key was included in the planning process. In fact, two of the documents submitted by those who claim that "No Name Key was completely omitted from the County 2000 Wastewater Plan," actually demonstrate that No Name Key was most certainly included in the Plan. • "Exhibit 1-2: Study Areas in the Lower Keys Area for the Monroe County Sanitary Wastewater Master Plan" shows No Name Key within the boundary of the "Big Pine Key Study Area # 11." • "Exhibit 6-1: Hot Spot Areas and Rankings - Lower Keys Study Area" does NOT include No Name Key in the list of "Hot Spots". • "Exhibit F-1-B: Hot Spot Areas & Community Wastewater Collection & Treatment System Service Areas" shows No Name Key within the "Big Pine Regional Wastewater Management District" and the map shows No Name Key as a "Cold Spot." a rg i W Z IL m SCNNK — History of Cor Electricity — Packet for New Coma iers — 11/2008 June 18, 2008 - Marathon, Florida Monroe County Board of County Commission Meeting Agenda Item M-3 — Commissioner DeGennaro's Item Agenda Item Wording: Approval to amend the Monroe County Code to eliminate the prohibition of the establishment of central wastewater treatment collection systems and utilities or No Name Keu..." The Back-up material consists of 76 pages, most of which are included in this packet of information. Among the 76 pages are 23 letters from individuals and organizations in opposition to lifting the prohibition against extending commercial power to No Name Key. All 76 pages can be found on the Monroe County website. Summary ofMgednq and Outcome: At the beginning of the meeting, both the pro -solar and pro -commercial power residents of No Name Key supported the STEP/STEG small diameter technology. It became clear during public input the STEP/STEG small diameter technology could be installed on No Name Key as a central collection system without extending commercial power to the 42 homes., Based on this, members of the Solar Community of No Name Key asked if the words "and utilities" could be removed from the motion. That did not happen. This may help explain the awkward wording of the motion. Final BOCC Direction (Based on the Minutes): Staff was directed to amend the language in the LDR and the Year 2010 Comp Plan so "that the prohibition on utilities is reworded such that the focus and priority be placed on wastewater first and any discussion of electric or any other utility is deferred until the wastewater goal is accomplished." ' Not long after this meeting, the pro power folks withdrew their support of the STEP/STEG small diameter technology in favor of the E-One Grinder system that requires commercial power to be extended to each of the developed parcels property line. b%-- .RD OF COUNTY CO1I+ MISSIONta. AGENDA ITEM SUMMARY **TIME APPROXIMATE REQUESTED** Meeting Date: Wed. June 18, 2008 Bulk Item: Yes No XX Division: BQCC Department: Mayor Di Gennaro, District 4 Staff Contact Person: Tamara Lundstrom (305 289-6000) AGENDA ITEM WORDING: Approval to direct staff to amend Section 9.5-258 Coastal Harrier Resources System Overlay District of the Monroe County Code to eliminate the prohibition of the establishment of central wastewater treatment collection systems and utilities for No Name Key in aecordanm with previously approved BOCC direction to include No Name Key within the central sanitary wastewater system plan for the Lower Keys Regional Service Area. ITEM BACKGROUND: PREVIOUS RELEVANT BOCC ACTION: June 2000 — BOCC approved the Monroe County Wastewater Management Plan; December 19, 2001— BOCC approved Ordinance 043-2001 amending the Monroe County Land Development Regulations to include Section 9.5-258, thereby establishing the Coastal Barrier Resources System Overlay; April 1 b, 2009 — BOCC approved expansion of the Summerland/Cudjoe/Sugarloaf Regional Wastewater System to cover design for Big Pine Key through Ramrod Key and Lower Sugarloaf Key; May 21, 2008 — BOCC approved central sanitary wastewater service to the property owners of No Name Key through inclusion of the area in the Lower Keys Regional Service Area wastewater treatment and collection system. CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: TOTAL COST: BUDGETED: Yes , No COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes — No i AMOUNT PER MONTH Year APPROVED BY: County Atty OMB/Purchasing Risk Management DOCUMENTATION: Included XX Not Required DISPOSITION: AGENDA ITEM # Revised 2/05 MINUTES OF THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS Regular Meeting Board of County Commissioners Wednesday, June 18, 2008 Marathon, Florida 117 A Regular Meeting of the Monroe County Board of County Commissioners convened at 9:00 A.M., at the Marathon Government Center. Present and answering to roll call were Commissioner Charles "Sonny" McCoy, Commissioner Sylvia Murphy, Commissioner George R. Neugent, Commissioner Dixie M. Spehar and Mayor Mario DiGennaro. Also present at the meeting were Roman Gastesi, County Administrator, Debbie Frederick, Assistant County Administrator; Suzanne Hutton, County Attorney; Danny L. Kolhage, Clerk; Isabel C. DeSantis, Deputy Clerk; County Staff, members of the press and radio; and the general public. ADDITIONS, CORRECTIONS, DELETIONS Motion was made by Commissioner :McCoy and seconded by Commissioner Neugent granting approval of the Additions, Corrections, and Deletions to the Agenda. Motion carried unanimously. PRESENTATION OF AWARDS Presentation of Years of Service Award for 10 years of service to Monroe County to Irene Toner, Director, Emergency Management, Emergency Services Division. Presentation of the Florida Keys Council for People with Disabilities Award to C. J. Geotis, Port Manager of the City of Marathon, Florida. Presentation of a Mayor's Proclamation in recognition of the community services provided by the American Red Cross. BULK APPOVALS Motion was made by Commissioner Spehar and seconded by Commissioner Neugent granting approval of the following items by unanimous consent: Board granted approval and authorized execution of a Renewal Agreement between Monroe County and Synagro Southeast, Inc. for operation and maintenance of the sewage treatment plant at the Florida Keys Marathon Airport. 128 located in Monroe County, Florida from the Federal Coastal Barrier Resources System. The following individuals addressed the Board: akealK�thD B o�� $��edTurkel, Kristie representing No Name Key residents; Mary Killam, John Bakke, Dave Eaken, John Lentini, and Jim Newton. Suzanne Hutton, County Attorney and Drew Trivette, Growth Management Director discussed the matter. The Board requested the item be heard later in the day. The Board discussed Mayor DiGennaro's item to direct Staff to amend Section 9.5-258 Coastal Barrier Resources System Overlay District of the Monroe County Code to eliminate the prohibition of the establishment of central wastewater treatment collection systems and utilities for No Name Key in accordance with previously approved BOCC direction to include No Name Key within the central sanitary wastewater system plan for the Lower Keys Regional Service Area. The following individuals addressed the Board: Dennis Henize, representing Last Stand and himself; John Hammerstrom, Donald Craig, representing No Name Key residents; Jim Newton, Bob Reynolds, Beth Ramsay- Vickrey, Mary Bakke, John Lentini, Brad Vickrey, Kathy Brown, Kristie Killam, Dave Eaken, Kathy Wheeler, Brenda Schneider, Jan Scanlon, Rob Barber, Mirkos Pichel, Mick Putney, Alicia Putney, representing the Solar Community of No Name Key; Hallett Douville, and Frank Atwell. Jim Reynolds, Executive Director of the Florida Keys Aqueduct Authority and Drew Trivette, Growth Management Director discussed the matter. After Board discussion, motion was made by Commissioner Spehar and seconded by Commissioner Neugent to so word the resolution that the prohibition on utilities is reworded such that the focus and priority be placed on wastewater first and any discussion of electric or any other utility is deferred until the wastewater goal is accomplished. Roll call vote was taken with the following results: Commissioner Murphy No Commissioner Neugent Yes Commissioner Spehar Yes Commissioner McCoy Yes Mayor DiGennaro Yes Motion carried. The Board directed Staff to amend the LDR's and Comp Plan. The Board discussed Mayor DiGennaro's item concerning a Resolution declaring support of Congressional Legislation to exclude the developed residential area of the unrecorded plat on the East End of No Name Key, otherwise known as "Island's End", located in Monroe County, Florida from the Federal Coastal Barrier Resources System. Suzanne Hutton, County Attorney and Drew Trivette, Growth Management Director discussed the matter. After Board discussion, motion was made by Commissioner Spehar and seconded by Commissioner Murphy to adopt the following Resolution. Roll call vote was taken with the following results: Commissioner Murphy Yes Commissioner Neugent No Commissioner Spehar Yes The Solar Community of No Name Key 1934 No Name Drive No Name Key, Florida 33443 ------------------------- o6/i8/2oo8 BOCC Regular Meeting Marathon, Florida Agenda Item M-_3: "Approval to direct staff to amend Section 9.5-268 Coastal Barrier Resources Svstem Overlay District of the Monroe County Code to eliminate the prohibition of the establishment of central wastewater treatment collection systems and utilities for No Name Key in accordance with previously approved BOCC direction to include No Name Key within the eentnal sanitary wastewater system plan for the Tower Keys Regional Service Area. Dear Mayor DiGennaro and Fellow Board of County Commissioners: The Solar Community of No Name Key, formerly known as the No Name Key Property Owners Against Commercial Power, was founded in 1995 in response to efforts to extend commercial electricity- to No Name Key. Our current membership, rtihich is listed below, represents 15 of the 43 homes on No Name Key. Some of the remaining households remain neutral on the issue. We fought, along side of Monroe County, with all parties expending an incredible amount of time, energy and money to keep No Name Key from loosing what makes it distinct from every other island in the Florida Keys. Below is an ovenview of the Electrification of No Name Key, battle from .to96 to 2003. Three of you., Mayor Pro 'T em McCoy, Commissioner George Neugent and Commissioner Spehar, helped in our efforts to have the existing regulations and policies upheld. Monroe County's has maintained a consistent position on the issue of extending commercial power to No Name Key- since 1996 and .%,e thank. you. Our core beliefs and the County's historical position is eloquently stated in portions of the Planning Commission Resolution P17-99 Conclusions of Law: "All of the.Appellants (Taxpayers for the Electrification of No .Name Key] moved to IVo .Name Kett with the knowledge that commercially provided electricity was not available. These property owners have the ability to move elsewhere in the Florida Keys in order to have such a service provided to them. In contrast, other No Name Key property owners moved to the island expressly because of the lifestyle that is offered to them there, including the fact that the character of the island is unique.,, in part due to the lack of commercial power and is a special enclave in the Florida Keys that provides a unique quality of life than must he nurtured. protected and prolonged." There is no justification for linking the issue of sewage to electrification in ligrht of the fact the STEP/STEG small diameter sewer system will work on No Name Key without involving KeysEneW. It is also the most cost effective of all the systems. We ask you please to oppose this agenda item and to continue in your ongoing commitment to "protect and nurture our special enclave of solar homes on No Name Key". [PC Resolution P 17-99.1 Thank you for you help and interest in this matter. Sincerely, Alicia Roemmele-Putney, President Carol C. Barber, Vice -President Elizabeth. Harlacher, Secretary Fraklin Atwell, Treasurer The Electrification of No lYame Kgy Battle from ioo6 to 2003: A Brief History On 2 It County Administrator James Roberts adtvised Dale Finigin, Cite Electric_ Systems, that the Monroe County Year 2010 Comprehensive Plan has policies that are clearly not in support of an extension of electric service to No Name Key. [See attached Fin igan-Roberts.pdf] In a May 1.,L1Ug8 Letter of Understanding from Tim McGarry, Director of Planning to Taxpayers for the Electrification of No Name Key, Inc., he stated that Monroe County "cannot support a project to extend commercial power to No Name Key because it would be inconsistent with Monroe County's Year 2010 Plan and both Chapters 380 and -163 of the Florida Statues." [See attached "LOU McGarry.pdf] This decision was appealed to the Planning Commission where every conceivable argument imaginable was brought forward and heard by the Planning Commission during two lengthy quasi- judicial hearings in 1998 and. 1999. The Applicants stated they had raccoons entering their homes, could not keep ice cream, were exposed to dengue fever, could not sell their homes, were lied to by the Realtors, had to run generators and store fuel and old batteries -- all of which are bad_ for the environment. The appeal was denied. [See attached Admin Appeal.pdf] The Planning Commission, on FebMa—ry 3, 1999, upheld the Planning Director's interpretation of the Year 201O Comprehensive Plan. Major points in the Commission's Conclusions of Layer were: that the appellants failed to meet the required burden of proof, that No Name Key has always been provided special protection under the County's Comp Plans (plural), and that allowing commercial electricity would be inconsistent with the overall goals, objectives and policies of the Year 2010 Plan. Moreover all of the reasons the appellants gave regarding potential negative environmental impacts and potential health and safety concerns are a direct result of the appellant's choice for generated power rather than solar power. All of the appellants moved to No Name Key with the knowledge commercial electricity, was not available. Appellants could move anywhere else in the Florida Keys to have commercial power, whereas those who have successfully adapted to solar living have no such choice. After the Planning Commission's denial of the Administrative Appeal by Taxpayers for the Electrification of No Name Key, Inc., the Planning Department paid for two Photovoltaic experts to come down from Central Florida and host a two-day seminar on Big Pine Key that offered free technical assistance on how to utilize solar power effectively, on -site advice and information on grants. Only one member of Taxpayers for the Electrification, Inc. of No Name Key bothered to attend the workshops. Instead of appealing the Planning Commission's denial to DOAH, the Taxpayers for the Electrification of No Name Key, Inc. filed a Complaint against Monroe County and City Electric Systems of Key West in the Circuit Court of the 16th Judicial Circuit on jj& 2, 1999. [Case Number: CAK990000819] The plaintiff represented 12 homes on No Name Key. WZ As a means of settling the pending suit, Plaintiffs once again sought relief through a Comprehensive Plan amendment to allow electrification of No Name Key. This time, on December 21. 14y9, Planning Director Marlene Conaway determined "there are simply too many] policies in the [Year 2010] Comprehensive Plan which would be. in conflict with an amendment of this nature." [See attached Conaway-Amend.pdf] In a second attempt to settle the pending suit, Plaintiffs proposed a Settlement Agreement that would have allowed the extension of commercial power to No Name Key. On Aril ig, 2ooi the BOCC unanimously rejected the proposed settlement agreement. Motion was made by Commissioner Williams, seconded by Commissioner Spehar, and supported by Commissioners Nelson, Nugent and McCoy. Also on April 19, 2001, motion was made by Commissioner Spehar and seconded by Commissioner Williams "directing staff to bring back to the Board for approval the creation of a zoning overlay district designation of off -grid encompassing all properties within the boundaries of No Naive Key; and also, to address or change the other issues that clearly caused confusion today." This is the exact legislation,_Monroe Coulrty Code Section %. 71268 Coastal Barrier Resources Svsterri_®verlav_ Bistrlct of the Monrc Caunty vote are_bein� asked to amend with this agenda item, By the time Mudge Richard Payne granted Summary ,Judgment in favor of the Defendants on July 1. 2002, over ninety-seven (97) entries had been made on the docket. On August is., 2002. Taxpayers for the Electrification of No Name Key, Inc, appealed. ,fudge Payne's ruling to the Third District Court of Appeals. After nearly a year of inaction, the Taxpayers for the Electrification of No Name Key, Inc. requested voluntary dismissal of their suit, which the court recognized on June 24, 2 The Solar Community of No Name Key- Membership List- June 20of3 Atwell, Frank & Kimi; 2137 Bahia Shores Read, No Name Key; 872-3495 2. Barber, Rob & Chris 1934 No Name Drive No Name Key. FL 33043 _i05) 872-1401 fliltriit� { l3�_�i�?t11�1 Iiit Brouillette, Jason 1843 Bahia Shores Road No NaTne Key, F1_, 33043 (305) 872-0283 4. Brouillette, Wayne & Christie 2107 Bahia Shores Road, NNK 328 Kings Crest Lane Pei ham, AL 35124 -3- 5. Daniels, Faye & Garrison, Stuart 20 Spanish Channel Drive No Name Key, 1`1 , 33043 (105) 872-0589 6. Douville, Hallett & Linda 32340 Cat Lane No Name Key, FL, 33043 305) 872-20',5 7. Dry, Lam, & Wanda 1868 No Narne Drive No Name Key, Fl-- 33043 o4,3 (3051) 872-1953 lrt h v 11 I'o'; to I. C o 1! 1 ol,com 8. Gato, Jeannette 1909 Bahia Shores Road No Name Key, I'l, 33043 (305) 864-0945 9. Ilarlacher,'Fony & Liz 1921 Bahia Shores Road No Name Key, FL 33043 05) 87'2-0'044 (570) 424-737 10- Press, Michael & Ann Spanish Channel Drive No Name Key, Fl.- 33043 )043 (305) 872-71550 (32 1) 13-2654 n 11ch'ICIIII-Cssra'. 11('4111.1"I.Com IL Putney, Mick & Alicia 2150 No Name Drive No Name Key, Fl (305) 872-8888 1111C,1111111L a"aot'.Colll .12, Scanlon, Bob & Jan 1845 No Name Drive No Name Key, FL 33043 (305) 8722-8845 ----came------ rr'I Lytn? lil.cvl�� -4- 13. Wernsen, Hans & Corry 1910 No Name Drive No Name Key, FL 33043 (305) 872-3141 h'!11110rlc(ff A— 14. Witter. Tom &. Susan 2046 Bahia Shores Road No Name Key, FL 33043 (305) t 15-2082 (607 j 967-8029 15 Leman. Larry 1933 Bahia Shores Road No Name Key, FL 33043 (305) 872-1173 Attachments: • August 2, 1996 Letter to Mr. Dale Finigin, Director of Engineering, Utility hoard of Key West from Monroe County Administrator James Roberts stating the adopted Monroe County 2010 Plan as adopted has policies which are not in support of the extension of electrical service to No Name Key • May 13. 1998 Letter of Understanding for the Electrification of No Name Key to Mr. Frank Greeman from Monroe County Planning Director Timothy McGarry. 7 pages. • June 11. 1999 Letter of Denial of the Administrative Appeal by the No Name Key 'Taxpayers for Electricity to Mr. Frank Greeman from Mrs. Judith Chambers, 2 pages. The eight (8) page Planning Commission Resolution No. P17-99 is a part of this document, 10 pages. • December 21, 1999 Letter to Mr. Frank Greenman from the Monroe County Planning Director Marlene Conaway stating the Planning Department cannot support or recommend a text amendment to the 2010 Comprehensive Plan to allow electrification of No Name Key, 2 pages. -Composite Attachment: Twenty-three (23) letters in opposition to Agenda Item M-3. Ten (10) are from No Name Key homeowners and represent eight (8) households. Twelve (12) are from Keys -,vide homeowners. And, one (1) is from a Keys -wide organization, Florida Keys Green Living and Energy Education (GLEE). -5- SCNNK — History of Comrr ' Electricity — Packet for New Comr ' ners —11 /2008 September 17, 20o8 - Key West, Florida Monroe County Board of County Commission Meeting Agenda Item Pi — Growth Management's Item AGENDA ITEM WORDING: "A public hearing to consider an ordinance amending the Monroe County Land Development Regulations Sec. 9.5- 258 to allow the provision of Central Wastewater service and support utilities to developed properties located within the Coastal Barrier Resources System." There were ten (14) pages of information submitted by Staff including the August 29, 2008, Planning Commission Staff Report. All of the Back-up material can be found on the Monroe County website. Planning Staffs initial recommendation was "to eliminate the direct prohibition for wastewater services within [CBRS] areas.", • Planning Staffs final recommendation ended up allowing for "the provision of sanitary wastewater service and those utilities required to provide sanitary wastewater collection. 2 The final language of the proposed amendment was subsequently changed by the Planning Commission on 07/23/20o8 by adding language that differentiates "developed" versus "undeveloped properties located within a CBRS unit." (Planning Commission Resolution No. 29-o8.) Outcome: The Board adopted ordinance No. 020.20o8. Vote was 3-2 with Commissioners Murphy and Neugent dissenting. Ordinance No. 020-20o8 was rendered to the DCA on October 15, 20o8. ' See attached letter from Andrew O. Trivette, Growth Management Division Director, to Mitchell N. Harvey, AICP, Comprehensive Planning Manager, July 14, 2oo8. 1 page. 2 Ibid. BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: September 17, 2008 Division: Growth Management Bulk Item: Yes No X Department:Planning_& Environmental Resources Staff Contact: Andrew O. Trivette AGENDA ITEM WORDING: A public hearing to consider an ordinance amending the Monroe County Land Development Regulations Sec. 9.5-258 to allow the provision of Central Wastewater service and support utilities to developed properties located within the Coastal Barrier Resources System. ITEM BACKGROUND: On July 22, 2008, the Development Review Committee reviewed the proposed text amendment and recommended approval. The Planning Commission met on July 23, 2008 and heard the proposed amendment at a public hearing. The Planning Commission duly considered public comments and staff report, and passed a resolution (P29-08) to the BOCC recommending adoption. PREVIOUS RELEVANT BOCC ACTION: June 18, 2008 — BOCC Resolution 179-2008 removing a portion of the CBRS. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: N/A TOTAL COST: N/A BUDGETED: Yes — No COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year APPROVED BY: County Atty X OMB/Purchasing Risk Management -- DOCUMENTATION: DISPOSITION: Revised 11,06 Included X Not Required AGENDA ITEM # �? MEMORANDUM MONROE COUNTY GROWTH MANAGEMENT DIVISION lye drive to be curing, prvfessionul and,fair To: Mitchell N Harvey, A1CP, Comprehensive Planning Manager From: Andrew O. Trivette, Growth Management Division Director Y ! Date: July 14, 2008 RE: CBRS Regulation Amendments - ..•... on of The intention of this memo toprovide vPlopmentcwthition n the eCBRS I units regulations Mons e prohibiting utility and infrastructure. County. The BOCC provided staff direction to develop proposed amendments for section ry e Pla5-258 of the land development regulations and policy 102.8.5 of the 2010 Co n p ehensal direction to BRS as. In my o to allow the provision of wastewater servicevision Cwas to simply eliminate the direct you I indicated that the necessary prohibition for wastewater services within these areas. he Additional staff review of the for the ne 18, provisionofBOCC wasgenda item (M3) tewater s rvices to these areatstas BOCC directed staff to silo p well as the utilities required to provide said service. Therefore, I recommend the following revisions: Land Development Regulations Sec 9.5-258, Coastal Barrier Resources System Overlay Districpotable water; electricity; (b) ... and telephone and cable. those utiis lities reon shall uired to not ro idecsan t the wastewaterColl et on wastewatr service and of existing public utilities in place and treatment nor the maintenance and upgrading on the effective date if this ordinance.-- ��on 2010 Comprehensive Plan policy 102.8.5 Monroe County shall initiate eyefforts f° discourage the Authority and extension of providerslof electricity it city and d services provided by the Florida yAqueduct telephone service to CBRS units.- excludin sanity wastewater service and those utilities required to pro_videsanitary wastewater collection and treatment. Please ensure that the staff report correctly reflects the action taken by the BOCC and include as a portion of the packet, the June 18, 2008 (M3) BOCC agenda item. ORDINANCE NO. 020 -2008 AN ORDINANCE AMENDING SEC. 9.5-258 OF THE MONROE COUNTY CODE TO ALLOW THE PROVISION OF CENTRAL WASTEWATER SERVICE AND SUPPORT UTILITIES TO DEVELOPED PROPERTIES LOCATED WITHIN THE COASTAL BARRIER RESOURCES SYSTEM; PROVIDING FOR SEVERABILITY; PROVIDING FOR THE REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR THE INCORPORATION INTO THE MONROE COUNTY CODE; AND DIRECTING THE CLERK OF THE BOARD TO FORWARD A CERTIFIED COPY OF THIS ORDINANCE TO THE FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS AND PROVIDING AN EFFECTIVE DATE WHEREAS, the Coastal Barrier Resources Act (CBRA) of 1982 established the Coastal Barrier Resources System (CBRS) to restrict the federally subsidized development of coastal barrier areas (SEE 16 U.S.C. 3504(a)(1)); and WHEREAS, Monroe County has 22 designated units of the CBRS identified by the U.S. Fish an Wildlife Service; and WHEREAS, Objective 102.8 of the Monroe County Year 2010 Comprehensive Plan states: "Monroe County shall take actions to discourage private development in areas designated as units of the Coastal Barrier Resources System [9J-5.006(3)(b)4]'; and WHEREAS, Policy 102.8.5 of the Monroe County Year 2010 Comprehensive Plan states: "Upon adoption of the Comprehensive Plan, Monroe County shall initiate efforts to discourage the extension of facilities and services provided by the Florida Keys Aqueduct Authority and private providers of electricity and telephone services to CBRS units", and WHEREAS, on December 18, 2001, the Board of County Commissioners adopted Ordinance No. 043-2001, creating Section 9.5-258 of the Monroe County Code which established a Coastal Barrier Resources System Overlay District, the purpose of which is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to or through lands designated as a unit of the Coastal Barrier Resources System; and WHEREAS, pursuant to Chapter 99-395, Laws of Florida, Monroe County has been mandated by the State of Florida to provide a centralized sewer system by 2010 as a means of improving near shore water quality within the Florida Key; and WHEREAS, on June 18, 2008, the Growth Management Staff was directed by the Board of County Commissioners to amend the comprehensive plan and land development regulations to reword the prohibition on utilities such that the focus and priority be placed on wastewater first and any discussion of electric or any other utility, other than those required to efficiently support a central wastewater collection system, be deferred until the wastewater goal is accomplished; and Pagel of 3 Initials W:\GROWTH MANAGEMENT\BOCC\GMD Agenda Items\20080917\CBRS LDR Amend\Adopted Wastewater Ordinance with changes from BOCC and no underlines or strikethroughs - LDR (Amended).doc WHEREAS, during a regular meeting held on July 23, 2008, the Monroe County Planning Commission conducted a public hearing on the proposed text, and recommended approval of the proposed text; and WHEREAS, the Monroe County Board of County Commissioners held a public hearing on the proposed amendments to the Monroe County Code submitted by the Monroe County Planning Department; and WHEREAS, it is the desire of the Monroe County Board of County Commissioners that the following amendment to the Monroe County Code be approved, adopted and sent to the state land planning agency for approval, NOW THEREFORE; BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Section 1. Chapter 9.5, Article VII Division 2 is hereby amended as follows: Sec. 9.5-258. Coastal barrier resources system overlay district (a) Purpose: The purpose of the Coastal Barrier Resources System Overlay District is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to undeveloped properties within a unit of the Coastal Barrier Resources System. (b) Application: The Coastal Barrier Resources System Overlay District shall be overlaid on all areas, except for Stock Island, within federally designated boundaries of a Coastal Barrier Resources System Unit on current Flood Insurance Rate Maps approved by the Federal Emergency Management Agency, which are hereby adopted by reference and declared part of this chapter. Within this overlay district, the transmission and/or collection Iines of the following types of public utilities shall be prohibited from extension or expansion only to undeveloped properties located within a CBRS Unit: central wastewater treatment collection systems; potable water; electricity; and telephone and cable. This prohibition shall not preclude the provision of those utilities required to provide central sanitary wastewater collection and treatment nor the maintenance and upgrading of existing public utilities in place on the effective date of this ordinance and shall not apply to wastewater nutrient reduction cluster systems. Se 'on 2. If any section, subsection, sentence, clause, item, change, or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such validity. Section 3. All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed to the extent of said conflict. Section 4. This ordinance shall be transmitted by the Planning Department to the Department of Community Affairs to determine the consistency of this ordinance with the Florida Statutes. Page 2 of 3 Initials W:\GROWTH MANAGEMENTIBOCC\GMD Agenda ltems\20080917\CBRS LDR Amend\Adopted Wastewater Ordinance with changes from BOC.0 and no underlines or strikethroughs - LDR (Amended).doc Section 5. This ordinance shall be filed in the Office of the Secretary of State of Florida, but shall not become effective until a notice is issued by the Department of Community Affairs or Administrative Commission approving the ordinance. Section 6. The Director of Growth Management is hereby directed to forward a copy of this ordinance to the Municipal Code Corporation for the incorporation into the Monroe County Code of Ordinances once this ordinance is in effect. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a regular meeting held on the 17th day of September, A.D., 2008. Mayor Mario DiGennaro Yes Mayor Pro Tern Charles "Sonny McCoy Yes Conunissioner Sylvia Murphy No Commissioner George Neugent No Commissioner Dixie Spehar Yes BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA _ BY Mayor Mario DiGennaro 4 _ U5V-DANNY KOLHAGE, CLERK ; 'b co DEPUTY C ERK EONRQ£ cG � 7TORNEY APP EU S T FORM+ Page 3 of 3 Initials W:\GROWTH MANAGEMENT\BOCC\GMD Agenda Items120080917\CBRS LDR Amend\Adopted Wastewater Ordinance with changes from BOCC and no underlines or strikethroughs - LDR (Amended).doc SCNNK — History of Commercial Electricity — Packet for New Commissioners—11/2008 September 17, 2oo8 - Key West, Florida Monroe County Board of County Commission Meeting Agenda Item P2 — Growth Management's Item AGENDA ITEM WORDING: "A public hearing to consider a resolution supporting the proposed amendment to Policy 102.8.5 of the Monroe County Year 2010 Comprehensive Plan to facilitate central wastewater service to No Name Key. There were ten (14) pages of information submitted by Staff including the August 29, 20o8, Planning Commission Staff Report. All of the Back-up material can be found on the Monroe County website. This is a very unusual agenda item — it puts the cart before the horse. Any ordinance that amends Monroe County Code Section 9.5-268, must be consistent with the current language in Policy 102.8.5 of the Year 2010 Comp Plan, not thefiLtge language in Policy 102.8.5 of the Year 2010 Comp Plan. This amendment to the Year 2010 Plan must be done before any amendment to the Monroe County Code. In spite of this, the approval of P-1 did just that. It approved the parallel amendment to the Code. Outcome: The Board passed a resolution supporting the adopted ordinance No. 020- 2008. Vote was 3-2 with Commissioners Murphy and Neugent dissenting. b,j, _,cD OF COUNTY COMMISSIONE. AGENDA ITEM SUMMARY Meeting Date: September 17, 2008 Division: Growth Mana ement Bulk Item: Yes No X __ DepartmentTl n &Environmental Resources Staff Contact: Andrew O. Trivette ing the AGENDA ITEM WORDING: A public hearing to consider20IOeCom�rehensive Plan to proposed amendment to Policy 102.8.5 of the Monroe Count} Year P central wastewater service to No Name Key. ITEM BACKGROUND: On July 22, 2008, the Development Review Committee reviewed the proposed text amendment and recommended approval. The Planning Commission met on July 23, 2008 and heard the proposed amendment at a public aresolution hearing. o a ( Planning 08) mCommission duly considered public comments and staff report, and pass OCC recommending adoption. 200$ _ BOCC approved central sanitary PREVIOUS RELEVANT BOCC ACTION: May 21, inclusion of the area in the Dower wastewater service to the property owners of No Name Key .throe gh Keys Regional Service Area wastewater �ore� �� Sectioncolle�t5 258sCo Coastal Barrier Resources System June 18, 2008 — BOCC directed staff Overlay District of the Monroe County Code to eliminate e Name Key. of the establishment of central wastewater treatment collection systems and utilities for CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: N/A TOTAL COST: N/A COST TO COUNTY: BUDGETED: Yes _ No SOURCE, OF FUNDS: REVENUE PRODUCING: Yes No — AMOUNT PER MONTH Year APPROVED BY: County Atty X OMB/Purchasing Risk Management DOCUMENTATION: Included X Not Required DISPOSITION: Revised 11 /06 AGENDA ITEM RESOLUTION NO. -2008 A RESOLUTION OF THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS SUPPORTING THE PROPOSED AMENDMENT TO POLICY 102.8.5 OF THE COMPREHENSIVE PLAN TO FACILITATE CENTRAL WASTEWATER SERVICE TO NO NAME KEY. WHEREAS, the Coastal Barrier Resources Act (CBRA) of 1982 established the Coastal Barrier Resources System (CBRS) to restrict the federally subsidized development of coastal barrier areas [16 U.S.C. 3504(a)(1)]; and WHEREAS, Monroe County has 22 designated units of the CBRS identified by the U.S. Fish and Wildlife Service; and WHEREAS, Objective 102.8 of Monroe County Year 2010 Comprehensive Plan states: "Monroe County shall take actions to discourage private development in areas designated as units of the Coastal Barrier Resources System [9J-5.006(3)(b)4]"; and WHEREAS, Policy 102.8.5 of Monroe County Year 2010 Comprehensive Plan states: "Upon adoption of the Comprehensive Plan, Monroe County shall initiate efforts to discourage the extension of facilities and services provided by the Florida Keys Aqueduct Authority and private providers of electricity and telephone services to CBRS units"; and WHEREAS, on December 18, 2001, the Board of County Commissioners adopted Ordinance No. 043-2001, creating Section 9.5-258 of the Monroe County Code which established a Coastal Barrier Resources System Overlay District, the purpose of which is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to or through lands designated as a unit of the Coastal Barrier Resources System; and WHEREAS, Pursuant to Chapter 99-395, Laws of Florida, Monroe County has been mandated by the State of Florida to provide a centralized sewer system by 2010 as a means of improving near shore water quality within the Florida Keys, and WHEREAS, on June 19, 2008, the Growth Management Staff was directed by the Board of County Commissioners to amend the comprehensive plan and land development regulations to reword the prohibition on utilities such that the focus and priority be placed on wastewater treatment first and any discussion of electric or any other utility, other than those required to efficiently support a central wastewater collection system, be deferred until the wastewater goal is accomplished; and WHEREAS, the Development Review Committee on July 22, 2008 reviewed the legal authority and the proposed text; and Page 1 of 2 WHEREAS, during a regular meeting held on July 23, 2008, the Monroe County Plamling Commission conducted a public hearing on the proposed text and recommended approval of the proposed text. NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Section 1: The BOCC confirms its continued support for the proposed comprehensive plan amendment which will facilitate the provision of central wastewater services to No Natne Key which currently includes developed areas within the Coastal Barrier Resources System. Section 2: The BOCC instructs the Growth Management Division Director to proceed with the Planning Commission recommended amendment to the comprehensive plan in January 2009 as a part of the 09-01 comprehensive plan amendment package which will require a public hearing prior to transmission. PASSED AND ADOPTED at a regular meeting of the Board of County Commissioners of Monroe County, Florida, held on the 17"' day of September, 2008. Mayor Mario DiGennaro Mayor Pro Tem Charles "Sonny" McCoy Commissioner Sylvia Murphy Commissioner George Neugent Commissioner Dixie M. Spehar BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA wo (SEAL) Mayor Mario DiGennaro ATTEST: DANNY L. KOLHAGE, CLERK 0 APPROVED AS TO FORM AND QAL SUE 61ENCY BY ATTORNEY' FtCE DATE Page 2 of 2 SCNNK — History of Comm( Electricity — Packet for New Comm- iers—11/2008 September 17, 20o8 Letter from Hallett Douville to Monroe County Board of County Commissioners In opposition to Agenda Item P-1 and P-2 - Growth Management's Items • Letter from No Name Key resident Hallett Douville presented to the Monroe County Board of County Commissioners, 09/17/20o8, 2 pages. Monroe County Board of County Commissioners Meeting 09/ 1'7/2008 Key West, Florida Comments by Hallett Douville, No Name Key, Florida (305) 872-2055 <douville@bellsouth.net> Agenda Item P-1: "A public hearing to consider an ordinance amending Section 9.5-258 to allow the provision of Central Wastewater service and support utilities to developed properties located within the Coastal Barrier Resources System." Good afternoon Commissioners. My name is Hallett Douville; No Name Key has been my home since 1990. I have participated in all of the issues affecting No Name Key over the years and have spoken to this Board several times this year regarding wastewater and No Name Key. I also attended the July 23rd Planning Commission meeting when this agenda item was heard. I will comment on the specific language of this proposed ordinance when the next agenda item, P-2, is called. For now, I would like to read a couple of quotes taken directly from the Back-up materials for Agenda Item P-2 because they are also very important to this agenda item, P-1. 1. Section 2, on page I of theproposed Resolution supporting amending Policy 102.8.5 states: "Section 2. The BOCC instructs the Growth Management Division Director to proceed with the Planning Commission recommended amendment to the comprehensive plan in January 2009 as part of the 09-01 comprehensive plan amendment package which will require a public hearing prior to transmission." -1- 2. The second and third WHEREAS on page 2 ofthe_proposed_Ordinance to amend Policy 102.8.5 state: "WHEREAS, the Monroe County Board of County Commissioners held a public hearing [on some unspecified date] to consider the transmittal of the proposed amendment to the state land planning agency on January 21, 2009; and, "WHEREAS, it is the desire of the Monroe County Board of County Commissioners that the following amendment to the Comprehensive Plan be adopted and sent to the state land planning agency for approval;" As these three quotes show, the proposed amendment to Policy 102.8.5 of the Year 2010 Comp Plan has not y_ et been adopted. In fact, it has not yet been sent up to the DCA. And, it cannot be sent to the DCA until January 21, 2009 - after another formal public hearing. YET, the purpose of this agenda item is to try to get this Board to approve new language in a Monroe County Code ordinance that is based upon and legally justified by new langua e in the Year 2010 Comp Plan_that has not ,yet been adorned! Any ordinance which amends Monroe County Code Section 9.5-268 must be consistent with the current language in Policy 102.8.5 of the Year 2010 Comp Plan, not the , future language in Policy 102.8.5 of the Year 2010 Comp Plan. What if all does not go as planned? What if the proposed language is changed at the transmittal hearing? What if the DCA recommends changes? What is the DCA rejects the proposed ordinance? This agenda item puts the cart way before the horse. P-1 should be pulled from today's agenda and reheard AFTER the underlying Comp Plan Policy 102.8.5 is amended, adopted and approved by the Department of Community Affairs. Approving P-1 today would not be legal. Please don't do it. Thank you. -2- September 30, 2Oo8 Analysis of Estimated Construction Costs To Serve No Name Key Low -Pressure Sewer (E-One Grinder) from The Solar Community of No Name Key to Monroe County Board of County Commissioners • Letter from Hallett Douville, The Solar Community of No Name Key, to Monroe County Board of County Commissioners, 09/30/20o8, qpages. • "Grinder Pressure Sanitary Sewer System for ... No Name Key" prepared by Larry Chapman and Associates, Inc. for No Name Key resident Robert Reynolds. Only the first page and final page of the 15-page report is included in this section. • "Estimated Construction Costs to Serve No Name Key Low -Pressure Sewer" prepared by Florida Keys Aqueduct Authority, 4 pages. The Solar Community of No Name Key 1934 No Name Drive No Name Key, Florida 33043 0 '19/"0/1008 .) � Dear CommIssioner Neugent and fellovr Monroe County Commissioners; ' ave K-oppe!,. Public Monroe County Worlks; Andrew Triiette, Monroe County GroWtb Management; and, Jim Reynolds, FK-/\ A--. At the September 17th BOCC meeting, Bob Reynolds, who represents a group of people that want to bring commercial power to No Name Key (NNK), submitted a proposal for an E-One ' Grinder Systern for NNK. For ease of reference, attached is the .5-page proposal, Grinder, Pressure §anitation Sewer Systern for 'lio Name Key," Larry Cbapnial- &.Associates, hic. The power demands of the individual "grinder" pumps at each house will be so large, conirnercial power will have to be run to each house to operate this, system. The "Solar Community of No Name (fey" has stated repeatedly that we realize -ore must meet the 201.0 Wastewater Standards and have supported the STEP/STE03 Wastewater Systern that 1 as proposed by one of our nei,,hFors, 'I7orn Sinclair, of Waste Water Systems, Inc. Page vi of the attachment has the brcal�down of the costs including abovIc ground power holes at a cost Of $573,90o.00. This does not include the individual homeowner cost for perl-nits, the '"drop" from the power -pole, disconnects., Pieter can riser, etc., that Dale Finigan frown Keys Ener,,),:,,, said woL�Id typically be from $5000 to 86000 per home. Using the low figure of $5000 per house, this adds an additional 'S215,000.00 to the cost, which now ir--ould be $788,qoo.00. This brin,-ISI the "Estirnated Se-vvef & Power Cost for No Narnle Ke.y" to 81,361,qoo.00. We Lhink it necessary to point out that we could not be forced to accept commercial 1po,iNer to our -/FKk--,k decides on histalling the Grinder individual homes. As sucli, if Monroe County �, System on NLNK, Monroe County/FKAA would have to absorb the cost of running CODIniercial power to the individual grinder pumps, not the homes themselves, for a minirnum of -Iq of the 43, hoi-neovners on No Name Key who are satisfied i8ith Solar power only. Item 6 on page 15 "The Power Distribution Net-ivorh" states the "s;li. amity" ils 43, Which 's the number of homes that would be divided into the cost of "the po,,Ner distribution neh-,,orl-C that i would enable the E-One Grinder System to operate, on NNK. The divider number 43 is not Ot correct. In, addition to the 15 110meO-Wners of "The Solar Community of No Name Key" who oppose bringing commercial power to their homes, -,ve know of at lea st one h.,,ornew"i ' Tner, perhaps as, niany as it nanny additional bomeot%,ners, that have remained neutral on bringn-1- comniercial power to NNK. Suffice it to say, using a divider number Of 43 would not be accurate. At best, the divider number to share the commercial power cost should be26 at the maximum. If the agenda to extend commercial power moves forxvard, there Nvii'll be a huge ,egal battle, including the fight to put the power lines under-roUnd. Given these facts, it N,ti�ould be reasonable to expect this divider number to decrease over time as the economic reality of the situation sets in for each of the 43 homeoAvnens on NNK. di In closing, \ve woLild 111ke to express our surpil-se and disgust thatthe issue of' Lgra-dinpg g our existing septic s3lstems to meet the 2010 Wastewater Standards has been allowed to becoi-ne an "electrificafioii of No Name Key issue;" especially given the knowledge that the STEP/STEM; System would meet the 20 io Wastewater Standards for less money than the E- One GrinderS-Vstern and without the cont-Foversy of bringing cons mercial-o-we,3- 1-0 the IINATIPIS ori NNK. 03, 1 iffututber clarification and/or /or input :are needed, please Heel --Frce to co-nnact us. 7,11AMA 'I ou 1F J-011 help and interest in this matter. Sincerely, I I ett Dou-ville, Board AGMsor :32340 C',11 1-71110 No, Name Kev, FL 33043 (30i) 872-2055 DouN,,ii.leCTj'oe'llsoutii..,ic', C., ffi Alicia Roenunele-Putp-cN ]'resident Carol C. Barber, Vice -President Seerctav� Franklin Atvell, Treasurer A tta -1. n *f e n t: ® Proposal, "Grinder Pressure Sanitation Seiver System for No Name Ke), by LarrY Chapinan & Associates, Inc." submitted by Mr. Robert Reynolds to the BOCC at the Regular Meeting, September 1-,, 2008 for Age-nda T erns P-, and P-2, 15 pages. I A -L -2- ("he Solar CoymriuriiV of,'No Nair Key — Officers & Membership List - September 17, 2008 Amcfl, Frank. & Kimi: 2137 Bahia Shores Road; 1,1,cy; S72-3495 Barber, I-,(-)b � Chris 1934 No Namc, Drive N o NNzmw Key, FL 33043 (305) 872-1401 fj`nowher,cE)be! I south. net 3. Brouiflk_-'u.c-- Jason 1843 BaMa Shores Had NoName Key, FL 333043 (305) 872-02S3 Am"M Tunwar" 4. Brollifle'tte, Wayne & Christie 2107 Badhia Shores Road, NNTIK, 328 Kings Crest Lane Petham, "J_ 3i124 5. mWels., !--ayt, , & Garrj,,out, Stuzar` 20 Spanish Chmum! EhAe Ito Wne Key, Ff. 33043 (305) S72-05S9, 6. Douvilic. j. Him Sz Linda 32340 Cal Lain No �Narne Key, FL, 33043 (305) 872-2055 Douvillc"?illel lsouthlie, 7. _Dry. Luri�y "K, Wanda, 1868 No'Nanic Drive No Nance Key, F1, 33043 (305) 872-1953 drdrytnjaoixoni 8. Carlo- Jeanncllc 1909 Babia Shores Road No. -rtzanw K-y. FL (305) 864-0945 Jf,pwcW6L ffisn.com s MN .Idler. F CIIY 0� Lis.' 1921 Bahia Shores Road No Name Key, 14- 33043 (305) 872.06441 (570) 424.-737 Spanish Channel Drive (305) 872-7550 (321) 21 3-2654 1"tiiC!1Ftc'11'it'� Ss!:(,''11t_?!1?la?..Gorrl 2150 No T imue Drive ame k Ni % ,t_. (305) 572-8988 mic lirl? o[jaolmorm 12. Scanlon, Bob &T, Jan 184 5 No -, t nie Drive d., y { 33043 `ti ii �NsAS 1A\.; ��. i>`}�. ?,Y_ ( 30 ) 872-SS45 theseuMmis.r I Armii.coiil 1�6; 11Set1.. 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