Case No. 95-004776DRISTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioners,
VS. CASE NO. 95-004776DRI
PAM A. AND BRIAN H. BAUER,
Owners and General Contractors;
and MONROE COUNTY, a political
subdivision of the State of
Florida,
Respondent.
SETTLEMENT AGREEMENT
This Agreement is entered into by and between PAM A. AND BRIAN
H. BAUER, Owner/Developer; MONROE COUNTY, Florida, a political
subdivision of the State of Florida; and the DEPARTMENT OF
COMMUNITY AFFAIRS ("the Department" or "DCA").
W I T N E S S E T H:
WHEREAS, PAM A. AND BRIAN H. BAUER is the owner of real
property known as Part of Lot 4, Block 21, Coco Plum Beach
Subdivision, Fat Deer Key, ("the subject property") within the
Florida Keys Area of Critical State Concern; and
WHEREAS, on May 12, 1995, Monroe County issued building permit
number 9520000223 authorizing construction of a swimming pool, deck
and stairs; and
WHEREAS, on June 26, 1995, the Department timely appealed the
respective permits to the Florida Land and Water Adjudicatory
Commission; and
agreement/bauer.agm 3/6/96 1
WHEREAS, the Department is the state land planning agency with
the duty and responsibility of administering and enforcing the
provisions of Chapter 380, Florida Statutes, the Florida
Environmental Land and Water Management Act of 1972 ("The Act"),
and the rules and regulations promulgated thereunder, including the
Monroe County comprehensive plan and land development regulations
in the Florida Keys Area of Critical State Concern; and
WHEREAS, pursuant to Section 380.032(3), Florida Statutes, the
Department is authorized to enter into agreements with any
landowner, developer, or governmental agency as may be necessary to
effectuate the provisions and purposes of The Act or any rules
promulgated thereunder; and
WHEREAS, the parties wish to avoid the expense, delay and
uncertainty of litigation and resolve the above -styled development
order appeal and related issues under the terms and conditions set
forth herein, and it is in their best interests to do so; and
WHEREAS, the Department finds that this agreement is in the
best interests of the state and is necessary to effectuate the
provisions and purposes of Chapter 380, Florida Statutes.
NOW, THEREFORE, in consideration of the mutual promises and
undertakings contained herein, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Recitals. The above recitals are incorporated herein and
form a material part of this agreement.
agreement/bauer.agm 3/6/96 2
2. Owners shall complete construction of swimming pool,
deck, and stairs as depicted in the revised site plan, a copy of
which is attached hereto as Exhibit "A."
3. Owners shall adhere to the recommendations and
requirements of the "Sea Turtle Setback Mitigation Plan," prepared
by Lewis Environmental Services, Inc., dated June 8, 1995 (attached
hereto as Exhibit "B"), including but not limited to beach
vegetation restoration, fire ant eradication, a conservation
easement for Save -A -Turtle, and an elevated beach boardwalk, with
the following modifications:
a. Owners may substitute common green buttonwood for
the sea lavender required in the vegetation plan; however, green
buttonwood may not be substituted for the bay cedar required in the
vegetation plan;
b. Owners shall schedule restoration of beach berm
vegetation on the subject property so as not to interrupt or
interfere with turtle nesting season, which occurs annually April
14th through October 16th; and
C. Owners shall substitute a footpath for the elevated
boardwalk reflected in the revised site plan (Exhibit A).
4. Should Owners desire to clean, clear, or "scrape" the
beach on the subject property, owners agree to obtain all necessary
permits from the Department of Environmental protection, Division
of Beaches and Coastal System Management, and provide a copy of
said permit to the Department prior to any such activity.
agreement/bauer.agm 3/6/96 3
5. The subject single family development shall be set back
from the mean high water line (MHWL) in order to protect the known
turtle nesting area of Coco Plum Beach. Under the unique
circumstances of this case -- wherein the permit was applied for,
revised more than once, separate lot owners filed separate permits,
a consolidated permit for many of the lots was never withdrawn, and
some construction had occurred -- the setback is measured from a
fixed point (the seaward edge of Avenue C) for a distance seaward,
such that the most seaward edge of the subject house will be
located at the setback line, described as follows:
The setback line is a straight line with the
southern end to be located by proceeding
southeasterly from the east right-of-way of
way (southwest corner of property) of Avenue C
for 313' along the south property line of the
lot. The northern end of the setback line is
located by proceeding southeasterly from the
east right-of-way (north corner of property),
of Avenue C for 372' along the north property
line of the lot.
Owners reserve the right to prepare and incorporate into this
agreement a more detailed legal description of the setback area
prepared by a licensed surveyor. Owners shall erect stationary
monuments on the property, on a lot -by -lot basis, from which the
setback line is marked, maintained, and preserved into perpetuity.
Owners shall maintain the area seaward of the single family house
in a natural state by retaining native vegetation, removing
invasive exotic vegetation and eradicating fire ants, pursuant to
Exhibit B. No additional development shall occur in this area.
6. Further Proceedings. Within five (5) working days after
an amended development order consistent with this agreement is
agreement/bauer.agm 3/6/96 4
rendered to the Department, the Department shall file a notice of
voluntary dismissal of this appeal and seek a final order from the
Florida Land and Water Adjudicatory Commission concluding this
appeal proceeding. By their signatures hereon, the parties to this
agreement join in any request to place this matter in abeyance
pending issuance of an amended development order and the filing of
a notice of voluntary dismissal, and join in any request for entry
of a final order consistent with this agreement.
7. Caveat. The parties acknowledge their disagreement over
whether the subject development order is consistent with the
provisions of Chapter 380, Florida Statutes, relating to areas of
critical state concern and the administrative rules promulgated
thereunder and have entered into this settlement agreement solely
in the spirit of compromise. By their signatures hereon, no party
shall be deemed to have acquiesced in the position of another party
with regard to the proper interpretation and implementation of
statutory and regulatory provisions relating to areas of critical
state concern. This agreement shall not be given precedential
effect with regard to any other development orders for other
projects in an area of critical state concern.
8. Retention of Right to Final Hearing. Time is of the
essence of this agreement. If any party fails to implement this
agreement within the time periods prescribed hereunder, or if this
agreement is based upon materially false or inaccurate information,
any party shall be entitled to withdraw from this agreement and
agreement/bauer.agm 3/6/96 5
seek a final hearing in this case by motion filed with the Florida
Land and Water Adjudicatory Commission.
9. Certification of Understanding and Voluntary Execution;
Release; Costs and Attorney's Fees. The parties and/or their
authorized representatives each certify that they have read and
understand the terms and conditions of this agreement and that it
is voluntarily executed for the purposes of making a full and final
settlement of any and all claims, disputes or otherwise, which
could have been asserted against the other party as a result of the
appeal of the subject development order. The parties hereto
release each other party from any and all claims of whatever nature
which arise or may arise out of the appeal of permit no.
9520000223. Each party shall bear its own costs and attorney's
fees incurred in this proceeding.
10. Drafting of Agreement. The parties shall be deemed to
have participated generally in the drafting of this agreement.
Accordingly, this agreement shall be construed neutrally without
regard to the party or parties responsible for its preparation, and
any terms, conditions, uncertainty, or ambiguity shall not be
construed against any of the parties as a result of the drafting of
this agreement.
11. Scope of Authority. This Agreement affects the rights
and obligations of the parties under the provisions of Chapter 380,
Florida Statutes, relating to areas of critical state concern. It
is not intended to influence or determine the authority or
decisions of any other state or local government or agency in
agreement/bauer.agm 3/6/96 6
issuance of any other permits or approvals that might be required
by state law or local ordinance for any development authorized by
this Agreement.
12. Duplicate Originals. This Agreement may be executed in
any number of originals, all of which evidence one agreement, and
only one of which need be produced for any purpose.
13. Binding Effect; Recordation of Agreement. This Agreement
shall be binding on the parties, their heirs, successors and
assigns. Within ten (10) days after entry of a final order by the
Florida Land and Water Adjudicatory Commission concluding this
appeal, the Owner shall record this Agreement in the Public Records
of Monroe County, Florida, and shall promptly provide proof of
recordation to Monroe County and the Department, including the
official records book and page where this Agreement is recorded.
Proof of recordation shall be furnished by hand delivery or U.S.
Mail, postage prepaid to the County by directing same to Antonia
Gerli, Acting Planning Director, 2798 Overseas Highway, Marathon,
Florida 33050, and to the Department by directing same to Mike
McDaniel, Growth Management Administrator, Region 2, Division of
Resource Planning and Management, Department of Community Affairs,
2740 Centerview Drive, Tallahassee, FL 32399-2100, or to such other
person or address as the County or Department may hereafter direct
in writing. Communications to the Owner/Developer regarding this
agreement and the development authorized thereby shall be directed
to Tony D'Ascanio, D'Asign Source, 5800 Overseas Highway, Suite 17,
Marathon, Florida 33050.
agreement/bauer.agm 3/6/96 7
14. Entirety of Agreement/Amendment. This Agreement
constitutes the entire agreement of the parties. This Agreement
may be modified or amended only by a separate writing signed by all
parties hereto.
15. Effective Date of Agreement. The effective date of this
Agreement is the date the last party signs this agreement.
IN WITNESS WHEREOF, the parties, by their duly authorized
undersigned representatives, have executed this Agreement on the
dates and year below written.
DEPARTMENT OF COMMUNITY AFFAIRS,
An Agency of the State of Florida
6044 -7 By
Date Charles G. Pattison
Director, Division of Resource
Planning and Management
STATE OF FLORIDA
COUNTY OF LEON
This instrument was acknowledged before me this day
of 4Q, 1996, by
Charles Pattison, as Director, Division
of source Planning and
Management, Department of Community
Aff irs, who is personallv
known to me and who did not take an
oath.
G�-cJGi�/,L.e..
No ry Public
G.�a!/ D 1 S�. 1/l/I1 � �� �a
! � v✓
Name (typed, printed dr stam)ed)
�1
My commission expires:
Commission Number ��; �`' V,j;i,-- + ;• v,'
�� � '•'sue r
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#CC 308615 '?
agreement/bauer. agm 3/6/96
8 �'iis .....
1,
By
Wit ess Brian Bauer
Witne s
STATE OF FLORIDA
COUNTY OF m12�1m�
Date
By
Pam Bauer
Date
The foregoing instrument as ackno edged befo e me this
day of CY ' CX"1 1996 by r 17f1 4 l .l�.r' ,
who are personally known to me or have produced
as identification and did (did not) take an oath.
or mi SHE1NNON M. W—EYER
Ady Comm E)q). 8/08/99
0e reLtUBW� Bonded By Service Ins
No. CC486979
Vp—HyKumn j j 0dWL D.
My Commission Expires:
AP S RM
A U C i CY
BY
rFiC,E
STATE OF FLORIDA
COUNTY OF MONROE
piqp
P IF
Frry Pu
Name (typed, printed or stamped)
Commission Number
MONROE C Y .
By
Mayor, Monroe''County, Bo
of County Commissioners.
Date:
The foregoing instrument was acknowledged before me this
_!_ day of , 1996, by 5#"PAU S&dn6 _ ,
who is personall known or who has produc
as ide-TH-7tification, and who did (did not) take an oath.
of �,.� RI_JTII ANN JANTZE: ,
Notary P
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a rvettio 13onded By Service In
Tdo. CC506335
p�rwn yrnown [10tr«,.o. Name (typed, printed or stamped)
My Commission Expires: Commission Number
agreement/bauer.agm 3/6/96 9
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EXHIBIT B
Sea Turtle Setback Mitigation Plan
prepared for
Tony D'Ascanio
by
Lewis Environmental Services, Inc.
P.O. Box 420334
Summerland Key, Florida 33042-0334
June 8, 1995
WASCANIO SEA TURTLE SETBACK MTTIGATTON PLAN
Lot 2, BIock 21, CocopIum Beach Subdivision
Site Description
The mitigation plan will focus on the area wateiward of the proposed single. family
residence. The habitat in this area can be described as ".disturbed with.beach berm" and is
vegetated with typical'beach herbaceous and -shrub species -
Zone A (Figure 1) consists of the sandy beach area between the waxer line.and the. storm
tide line. There is no vegetative growth in this area.
Zone B figure 2) is located between 13 and 21 feet from mean high water and consists of
an escarpment dominated by shrubs including dune elder (Iva imbricata), inkberry
(Scaevola plumien) and also seagrape (Coccoldba uvifera) and bay cedar (Suriana
marifima). Around and behind the shrub line are several herbaceous species such as dune
sunflower (Helianfhus debilis), railroad vine (Ipomoea pes-cuprae), Paspalum (Paspalum
sp.), spanish needles (Bidens abler), and fringe rush (Fymbrisfilis sp.). The invasive
exotic, Australian pine (Casuarina sp.) also occurs in this zone.
Zone C (Figure 3) is located between 21 and 35 feet landward of mean high water and
displays a hard packed dredge spoil substrate typical of the Cocoplum Beach Subdivision
area. Deposition of dredged fill is the main source of permanent disturbance in this area.
This zone has also apparently been used recently by construction or beach cleaning
vehicles. Vegetation is sparse in this zone.
Zone D (Figure 4) extends from about 35 to 65 feet from mean high water and is
vegetated mainly with the herbaceous species found in Zone B but also including sea
purslane (Sesuvium portulacastrum), Andropogon (Andropogon sp.) and other grasses
(Figure 5). Australian pines can also be found here.
Zone E (Figure 6) lies between Zone D and the house site (about 65-90 feet from mean
high water). This area is sparsely vegetated mainly with Paspalum A stand of large
Australian pines is located at the west end of this zone.
Mitigation Activities
Cocoplum Beach is an active turtle nesting beach'and is regularly patrolled by volunteers
from the local organization known as Save -A -Turtle. Mdgation/restoration efforts will be
aimed at enhancement of sea turtle nesting habitat. Mitigation activities are listed below in
order of greatest to least importance to sea turtles, and each one is described in detail.
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Compliance with County Turtle Liahtin Ordinance
The County's Turtle Lighting Ordinance will be complied with during construction'of and
upon occupancy of the residence. There is no outdoor lighting proposed on the seaward
side of the residence. Any lighting of stairs, drives, -walks, etc. at the front of the.
residence will be recessed or otherwise shielded to prevent direct fllumination of the
beach_ Indoor lighting will be shielded with window treatments.
Fire Ants
Fire ant attacks on turtle hatchlings are becoming an increasing problem This site has at
least two and perhaps more fire ant nests located directly in the beach setback area,
especially in the disturbed area. Eradication of fire ants could significantly enhance turtle
hatchling survival in this area and would also be of benefit:to the property owner. Fire ant
nests will be treated once during the revegetation of the beach berm. The area will then be
retreated every year, as necessary, just prior to the start of the nesting season.
Conservation Easement
A conservation easement will be recorded which guarantees access to Save -A Turtle
volunteers (under the authority of DEP) for turtle nesting surveys on this beach.
Beach Reve�etation
Planting Plan: Revegetation will occur mainly in Zones C and E as depicted in Figure 7.
The remaining areas are all fairly well vegetated and it is more advisable to allow natural
expansion of the vegetation in these zones than to attempt to plant. Modification of the
substrate will be needed in Zone C, but the rest of the beach has enough loose sand to
accomodate plant germination and expansion. All Australian pines will first be treated
with "Garlon 4" herbicide about 30 days prior to removal to ensure that all vegetative and
underground parts are lolled. The smaller pines will be removed completely, taking as
much stump and root as possible without uprooting surrounding vegetation. The large
trees in Zone E will be cut and stumps left in place.
Figure 7 shows the general planting scheme.
to availability:
Sea lavender
Bay cedar
Dune sunflower
Sea oxeye daisy
Beachgrass
Railroad vine
Sea purslane
Seashore dropseed
The following plants will be included subject
Tournefortia gnaphalodes -
Suriana maritima _
Hellanthus debilis
Borrichia arborescens
Panicum amarum
1pomoea pes-caprae
Sesuvium portulacastrUnl
Sporobolus virginicus
It appears at this time that all of the plants are readily available except sea lavender and,
perhaps bay cedar. Green buttonwood will be substituted as needed for these species.
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Bay cedar is found on this lot and elsewhere on Cocoplum Beach. One specimen of
woody sea lavender occurs east of this site and is the only specimen on Cocoplum Beach.
Planting of these two listed woody species will help *promote their recovery. on Cocoplum
Beach and will be consistent with the County's Cocoplum Beach Management Plan. The
remainder of the restoration focuses on herbaceous vegetation in keeping with the existing
vegetative character and turtle nesting activities. The list attempts to concentrate mainly
on species found naturally growing on this site and elsewhere on Cocoplum Beach.
It is recommended that the restoration take place outside the turtle nesting season
(between October 16 and April 14). However, if restoration must take place during
nesting season, the following measures will be implemented: All activities will be .
coordinated with the Save -A --Turtle volunteer for Cocoplum Beach to make sure
restoration work does not disrupt nesting activites, hatching activities, or known nests.
The substrate modification in Zone C (described below) will all be performed within one
day. The cloth barrier will be erected at the beginning of the day and removed at the end
of the day to avoid leaving it overnight. All crews performing planting will be instructed
to be alert for unmarked turtle nests and will immediately report these to their superviser
who will contact the Save -A Turtle volunteer.
Zone C: As previously mentioned, the substrate in Zone C is hard -packed dredge spoil
and will have to be modified prior to plant installation. The most effective way to do this
will be to either loosen or replace the top few inches of soil. Prior to planting, one or two
small "test" areas of substrate will be excavated to determine how much modification is
needed. The goal will be to keep alteration of the site to the minimum amount necessary
for plant survival. The perimeter of the planting area in Zone C (about 2500 square feet)
willbe delineated with a staked cloth barrier to confine the work and soil in the disturbed
area. A small backhoe and/or small auger will be used to break up or scrape down the top
two to three inches of hard dredge spoil substrate. Soil will be tilled or otherwise
mechanically worked to match as closely as possible, the consistency of the adjacent sandy
areas- Although it is not anticipated at this time, it is possible that the original substrate
material will be too "packed" to effectively break up. If it is decided that the soil should
be replaced, the original material will be spread at the front of the lot (amount will be less
than 25 cubic yards) or properly.disposed of by the contractor, and replaced with limerock
fill screenings.
Once the site is prepared, the plantings will be installed. Sea lavender and bay cedar
shrubs (largest sizes available) will be installed in five groupings of plants mainly along the
waterward edge of the zone (Figure 7). The remainder of the area will be filled in with an
equal mix of dune sunflower, railroad vine, sea oxeye daisy, and sea purslane planted on
approximate three foot centers throughout the zone.
Zone E: No substrate modification will be needed in Zone E. The entire area (about 2400
square feet) will be planted on approximate three foot centers with an equal mix of dune
sunflower, railroad vine and beachgrass.
Maintenance: Once the plantings are installed they will be watered immediately and then
once every other day for the first week (one good soaking without waterlogging). The
plants will be watered once a week thereafter for the following five weeks, and about once
a month after that. Seasonal timing -of the planting (wet or dry season) will playa great
role in the watering schedule. Any invasive exotics found on the site during monitoring
visits will be pulled up by hand, if possible, or treated with Garlon 4. Access will be
prevented by staking and marking the area with survey ribbon so that work crews stay out
of the area during constriction_ of the house. The future homeowners will use the
boardwalk (see below) for access to the beach. Damage of plantings by nesting turtles can
be expected but is not anticipated to be a significant problem. This will be monitored as
part of the monitoring plan (see below) and plants will be replaced if necessary.
Monitoring. Success of this beach restoration will be defined as an 80% survival rate for
planted individuals over a one-year period and maintenance of the entire beach free of
invasive exotics. Once the planting is installed, the site will be photographed. The site
will be revisited at the end of three months to determine the general condition .of the
installed plant material. If survival is generally good, the site will be revisited at the end of
the first year and placement of plants to meet the 80% survival requirement will be
performed at that time if necessary. If� after three months, the survival of installed
material is very poor, the site will be re-evaluated to determine whatmeasures need to be
taken. Given the nature of the existing plant material in the area and the proposed
modification of substrate in Zone C, it is expected that plant survival will be high and that
natural recruitment will also be accelerated. The site will also be monitored for invasive
exotic plant colonization at three months and one year from plant installation.
Elevated Boardwalk
The proposed boardwalk will be used for access to the beach by the future homeowners.
It will be no more than four feet wide, will terminate at the escarpment or storm berm
(beginning of Zone B), and will pass through one of the unvegetated areas of Zone B so
that native woody dune plants will not be disturbed. It will be the subject of a future
permit application and will be built prior to plant installation if at all possible. Otherwise,
the footprint of the boardwalk area will be marked on site and planting worked around it.
12