Case No. 84-1198STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY
AFFAIRS,
Petitioner,
and
JERRY PARRISH, JOEL L.
BEARDSLEY, ED DAVIDSON,
Intervenors,
VS.
MARK BARTECKI, LYNN KEPHART,
and MONROE COUNTY ZONING
BOARD,
Respondents.
CASE NO. 84-1198
SETTLEMENT AGREEMENT
This agreement is entered into pursuant to Section 380.032
(3), Florida Statutes (1985), for the purpose of resolving the
Department of Community Affairs' ("Department") appeal of a
development order designated as Monroe County ("County")'Zoning
Board Resolution MD1-84, relative to a project known as
"Spoonbill Sound". The project is proposed to be developed on
Cudjoe Key, Monroe County, Florida, the site of which is more
specifically depicted on a survey of the development plan
appealed; a copy of which is attached hereto for purposes of
boundary depiction and calculation of "hammock" only, as
Exhibit A. The development order granted by the County is
modified only to the extent specified in the following
paragraphs:
1. Construction of the 50 residential units approved shall
be wholly confined to the area which is designated as the
"Building Zone" on the amended conceptual site plan attached
hereto as Exhibit B. The Building Zone comprises approximately 5
acres, as calculated as 40 per cent of the 12.5 acre (+ or -)
hammock area depicted on Exhibit A. Within 30 days of entry of
the Final Order approving this agreement, Respondents Bartecki
and Kephart, will have the physical boundaries of the Building
Zone surveyed and delineated as follows: each of the corners of
the Building Zone will be marked with concrete survey markers or
1
other permanent monuments, and the boundaries of the zone will be
marked with permanent markers at no less than 340 foot intervals.
2. After survey and marking, development in the Building
Zone will be subject to the following additional conditions:
a. The residental units and appurtenances will be clustered;
b. The location of residental units and appurtenances will
be approved for each phase by the County through issuance of a
building permit, based upon building regulations in effect when
applied for;
C. Areas proposed to be cleared will be staked prior to
clearing to allow for inspection by the County and any required
transplantation of rare, endangered or threatened species of flora
or fauna in the area proposed for clearing;
d. Clearing for residential units and appurtenances is
only authorized to locate said units and appurtenances with a
reasonable clearance surrounding said structures: no clear -cutting
within the Building Zone is authorized;
e. Construction of the residential units and appurtenances
may proceed in phases of one to ten years from the date of the
Final Order approving this agreement, provided that all development
shall commence no later than ten years from the date of the Final
Order approving this agreement;
f. Land clearing shall coincide with phasing of each
residential unit and appurtenance, and shall require the prior
issuance of a County land clearing permit;
g. Nothing in this agreement limits or prohibits construction
of (a) community swimming pools and/or tennis courts, not exceeding
a total of three such facilities, within the Building Zone, and (b)
those structures expressly allowed under the Conservation Easement
(Exhibit C hereto). Net buildable area, open space ratio, setbacks
and bufferyards shall be measured and computed on the basis of the
area and coundaries of the entire parcel, rather than the Building
Zone.
3. All on -site wastewater treatment facilities shall comply
with the requirements of Chapter 1OD-6, Florida Administrative
Code, or its successor regulations, as well as all applicable
FA
state statutes pertaining to wastewater treatment which are in
force as of the date that permits required thereby are applied
for. In no event shall more than 25 dwelling units be served
by on -site treatment units. After the issuance of a Certificate
Of Occupancy for the 25th dwelling unit, a sewage treatment facility
must be installed, to treat the wastewater of all existing and
future dwelling units at Spoonbill Sound. No more than 25 on -
site treatment units may be constructed until a fully -licensed
sewage treatment plant with requisite collection lines, has been
installed and is operational. Once the sewage treatment plant
is operational, all existing on -site treatment units shall be
removed within 6 months, and the areas disturbed revegetated with
native species, and all wastewater will be treated in the central
sewage treatment plant. The sewage treatment plant shall be located
as depicted on Exhibit B and clearing for construction and maintenance
shall be minimized and approved by the County Biologist.
4. Other on -site stormwater and wastewater shall be subject
to permitting requirements of the South Florida Water Management
District and Department of Environmental Regulation, in addition
to any review required by the County.
5. The depiction of the "proposed dock" on Exhibits A and B
does not in any respect constitute an endorsement or approval of
the dock by the Deparment or the Florida Land and Water Adjudicatory
Commission, which currently lack Area of Critical State Concern
jurisdiction over the proposed dock waterward of the line of mean
high water. The proposed dock is depicted solely as a surviving
feature of the County development order.
6. Within 15 days of the entry of the Final Order approving
this agreement, Respondents Bartecki and Kephart shall execute
and record in the Public Records of Monroe County, the Conservation
Easement attached hereto as Exhibit C. No disturbance shall occur
in the areas subject to the easement prior to recordation and
the Respondents shall be required to restore any areas disturbed
prior to recordation. A true and correct copy of the recorded
instrument shall be provided to the Department's Agency Clerk
within 15 days of recordation.
3
i
7. Nothing in this agreement shall relieve the Respondents,
or their successors in interest, of the need to apply for and
obtain all required federal, state, regional and local permits.
8. This agreement is enforceable pursuant to Sections 380.032(3)
and 380.11, Florida Statutes (1985). The prevailing party in such
an enforcement proceeding shall be entitled to recover those costs
and attorneys fees allowed by law. In addition, the Department
shall be entitled to recover those investigative costs and expenses
incurred in such proceedings.
9. Upon full execution of this agreement, the Department
will file a notice of voluntary dismissal of its appeal of Monroe
County Zoning Board Resolution MD1-84.
MARK BARTECKI and LYNN KEPHART
STATE OF FLORIDA
ss:
COUNTY OF MONROE
SWORN TO and SUBSCRIBED before me this_ day of,
1987.
Notary PuW' State of %rwo
My Commission Expires Dec, 9, IM
1londad Th- Tro)s fain -insurance hw.
My commission expires:
ATTESTr
:s
�i
STATE OF FLORIDA
ss:
COUNTY OF MONROE
SWORN TO and SUBSCRIBED be
1987.
My commission expires:
G ,l�
NONROE COUNTY BOARD OF COUNTY COMMISSIONERS
yor C irman f Board r• L
me this day of Awtst/I V
FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS Notary Publid State of Rorida
My Commission Expires June 24, 198#
By
THOMAS G. PELHAM, Secretary
AS TO FORM
SUFF/CIENC
a1.nr1
Ida Office '
4
CONSERVATION EASEMENT
THIS INDENTURE, is made this day of August, 1987
by and between LYNN H. KEPHART and MARK BARNETT, f/k/a MARK
BARTECKI ("Owner", herein), and FLORIDA KEYS LAND TRUST, a non-
profit corporation organized and existing under the Laws of
Florida, ("FKLT", herein), for the benefit of the people of
the State of Florida.
WITNESSETH:
WHEREAS, Owner is the owner of certain real property
known as SPOONBILL SOUND, described as that part of Government
Lot 8, Section 28, Township 66 South, Range 28 East, Monroe
County, Florida, lying South of U.S. Highway No. 1, which is
proposed to be developed as a residential community; and
WHEREAS, the Site Plan of SPOONBILL SOUND designates
a Building Zone, within which all residential construction will
be confined, and retains the remainder of the property lying
North and South of the Building Zone as a buffer zone, and nature
preserve, said remainder being herein referred to as the Protected
Property; and
WHEREAS, Owner will place of record a Declaration of
Covenants, Conditions and Restrictions of SPOONBILL SOUND, includ-
ing therein certain restrictions upon trimming or removal of
native vegetation within the Protected Property; and
WHEREAS, Owner and FKLT recognize the natural, scenic,
aesthetic and special character of the Protected Property, and
have the common purpose of the conservation and protection in
perpetuity of the Protected Property as a natural habitat;
NOW, THEREFORE, Owner, for and in consideration of the
facts set forth above and as an absolute and unconditional gift
does hereby give, grant" bargain, and convey unto FKLT a Conser-
vation Easement in perpetuity over the said Protected Property,
(i.e. all of SPOONBILL SOUND except the "Building Zone" described
in the legal description, Exhibit 1 hereto) to be held for the
benefit of the people of the State of Florida, consisting of
the following:
EXHIBIT "C" to
DCA Settlement Agreement
1. The right of FKLT, in a reasonable manner and at
reasonable times, to enforce by proceedings at law or in equity
the restriction hereinafter set forth, including but not limited
to, the right to require any violator of the said restriction
to fully restore said Protected Property to its pre -violation
condition. FKLT does not waive or forfeit the right to take
action as may be necessary to insure compliance with the purposes
of this Easement by any prior failure to act. Nothing herein
shall be construed to entitle FKLT to institute any enforcement
proceedings against the Owner or its successors and assigns
for any changes to the Protected Property due to causes beyond
Owner's control, such as changes caused by fire, floods, storm
or the unauthorized wrongful acts of third persons, nor for
acts occurring prior to recordation of this Easement.
2. The right of FKLT to enter the Protected Property,
-in a reasonable manner and at reasonable times, but always upon
prior notice to Owner, for the purpose of inspecting the Protected
Property to determine whether the Owner, or Owner's successors
or assigns are complying with the restrictions and purposes
of this Easement.
AND IN FURTHERANCE of the foregoing rights, Owner, on
behalf of itself, its successors and assigns, and with the intent
that the same shall run with and bind the protected property
in perpetuity, does hereby make, with respect to the protected
property, the following restrictions:
1. There shall be on the protected property no construc-
tion or placement of buildings, roads, signs, billboards, or
other advertising, utilities or other structures on or above
the ground.
2. There shall be on the protected property no dumping
or placing of soil or other substance or material as landfill,
or dumping or placing of trash, waste, or unsightly or offensive
materials.
-2-
3. There shall be on the protected property no excavation,
dredging, or removal of loam, peat, gravel, soil, rock or other
material substance in such manner as to affect the surface.
4. No person, including without limitation any owner
of any residential unit of SPOONBILL SOUND, nor any agent nor
employee of any owner, may trim or remove any native vegetation
within the Protected Property, except as may be necessary for
construction and maintenance of the following described improve-
ments, built in accordance with all appropriate State, Federal
and local permitting requirements:
(A) A sewage treatment facility with service/access
drive, elevated walkways, a nature trail, and a dock; provided
further that (1) the width of an elevated walkway shall not
exceed eight (8) feet, with a platform at the terminal end no
larger than 20 feet by 20 feet; (2) the length and width of
the nature trail shall not exceed three -fourths of p mile, and
eight feet, respectively, with up to 2 picnic areas no larger
than 20 feet by 20 feet each; and (3) location of the nature
trail is subject to prior approval of the Monroe County or FKLT
Biologist, who may alter its course to avoid destruction of
rare or endangered plant species.
NEVERTHELESS, and notwithstanding any of the foregoing
provisions to the contrary, Owner reserves for itself, its succes-
sors and assigns the right to construct, maintain and replace
a sewage treatment facility with service/access drive, elevated
walkways, a nature trail and a dock, in accordance with the
limitations set forth in Paragraph 4(A) above.
TO HAVE AND TO HOLD the above -described Conservation
Easement, for the proper use and benefit of FKLT forever.
IN WITNESS WHEREOF, the Owner has executed this Easement
-3-
this day of August, 1987 at Key West, Monroe County, Florida.
Witnesses:
STATE OF FLORIDA
:SS
COUNTY OF MONROE
LYNN H. KEPHART
MARK BARNETT
BEFORE ME, personally appeared LYNN H. KEPHART and MARK
BARNETT, f/k/a MARK BARTECKI, to me well known and known to
be the individuals described in and who acknowledged that they
executed the foregoing Conservation Easement.
WITNESS my hand and official seal at Key West, Monroe
County, Florida this day of August, 1987.
ri
Notary Public, State of Florida
(SEAL)
My Commission expires:
-4-
7. Nothing in this agreement shall relieve the Respondents,
or their successors in interest, of the need to apply for and
obtain all required federal, state, regional and local permits.
8. This agreement is enforceable pursuant to Sections 380.032(3)
and 380.11, Florida Statutes (1985). The prevailing party in such
an enforcement proceeding shall be entitled to recover those costs
and attorneys fees allowed by law. In addition, the Department
shall be entitled to recover those investigative costs and expenses
incurred in such proceedings.
9. Upon full execution of this agreement, the Department
will file a notice of voluntary dismissal of its appeal of Monroe
County Zoning Board Resolution MD1-84.
MARK BARTECKI and LYNN KEPHART
ss:
COUNTY OF MONROE
SWORN TO and SUBSCRIBED before me this day of i! dj---,
1987. }Notary Pubrk,. State of Ho
�Ily Commission Expires Dec. 9, IM.,
bpded Dw Troy Faiq a jwumn- Inc 4
My commission expires:
MONROE COUNTY, FLORIDA
!0/
Ma or/Ch irman of the Bo
JT
Count Commissioners
S OF FLORIDA
ss:
COUNTY OF MONROE
(SEAL)
AS&.6ea, "?
Clerk / ' rs rQFC
„ 1,
BYE, Office
SWORN TO and SUBSCRIBED before me this 3(IA day of w-1'4'
19 8 7 . NOTARY PUBLIC STATE OF FLORIDA
NY COMMISSION EXP. NOV 13,1990
BONDED THRU GENERAL INS. UND.
My commission expires:
FLORIDA DEPARTMENT OF COMMUNITY A FAIRS
By
THOMAS G. PELITAM, Secretary
STA^'E OF FLO^IDA
COUNTY OF LE,ON
SWORNAND AND SUBSCRIBED BEFORE ME T11ISCX DAY Off' � � 1987
;Notary PubCc,'State of florilds 4
My Crumn;ission Expires June 24, 1988
4QAdad i ntu 140y - fait' . ixuranca, loci Nd ar v PubLic 4
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LOCAV 1ON MAC'.
("y
LEGAL DE CRIPTION:
Government Lot 8, lying South of U.S. Route No. 1, Section 28, Township 66
South, RatAge 28 East, Cudjoe Key, Monroe County, Florida.
NOTES:
Present zoning: GU
Owners:
Location
Name & Address
?opinj
North
ila, Dept. of Transportation
N/A
East
Pirates Road (Monroe County)
N/A
M.B.G. Investment Corp.
RU-3
% Maria Buscemi
6060 India Creek Drive
Miami Beach, Fl.
Eugenio Martinez
BlJ-2
=$
1024 Duval St.
Key West, Fl.
South
State of Florida
N/A
West
Jack A Saunders
GU
801 Eisenhower Drive
Key West, Florida 33040
,.
Parcel "A" is dedicated as a Red Mangrove Prdserve and as ant;',quat 6 bird
' sanctuary, not.to be altered or disturbed.
i
Parcel "14" is dedicated for the private use pf "SPOONBILL SOUND"
homeowners, Solely as a recreatiopal area, parking for
_t�i.e._xe�r�eational area, and- as
treatment plant.
t F
SPOONBILL DRIVE. as'shown hereon is not dedi.catgi to the public, but
is reserved for the non-exclusive use of the owners of,the
property in the subdivision, their successors, or assigns,
together4with the members of the Police and Fire De 4 tment
and othe.ranecessary Governmental agencies engaged in.their
official ,"capacities. Public utilities shall have the right
to use Said road for the ins tal la tia� -and of
underg`toUnd transmission and distrilion lines.
Platting area contains 16.01 area, more or less x upland hammocks,
as,recently calculated. Boundries of Parcel "A" ere surveyed and
total acreage calculated to be 12.93 acres, more r less.
LEGEND;
S1 ',ire -well (total 9)
Q Sanitary Sewer Manhole
a.5 Denotes existing elev, at decimal point
Electrical
'C Telephone
C Cable
Pole
Ground waterf low
C R.A.Community Recreational Area
(subject to permits) (Phase II.)
SURVEYORS NOTES:
3.4 denotes existing elevation bosed on N.G.V.D. 1929
Bearings based on F.D.O.T. drawi"g No. 90020-616608 (3-26-80)
CERTIFICATION:
I hereby certify that the attached preliminary plat entitled "SPOONBILL SOUND"
is true and correct to the best of my knowledge and belief; that it meets the
minimum technical standards adopted by the Florida Society of Professional
Land Surveyors, Florida Statue Section 472.027 and the Florida Land Title
Association, and that there are no encroachments unless shown hereon.
F'reder�ck H. H3Tdebrandt --"
Professional Land Surveyor #2749
State of Florida
5z
74,
0
777 ,!
�7_411 "q
FINAL MAJOR DEVELOPME
SPOONBILL S(
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1 V T P-',P
T PL/�N AND P P-,,F-LIMIN/\RY
)ND
Government,Lot 8, Sec. 28-66-28, Cudjoe Key,
Z3 , ED Monroe County, Fla. Contains
1JE K � Y Less U.S. .Highway No. 1
(right-of-way)
Remaining Acres.
10
Area Northerly U.S. Highway N0.1
(a) Vegetated Preserve
(b) Unnamed water area
Total Area Northerly U.S. Highway No. 1
(Areas per Phillips I& Trice Survey No. C-34C
13,E C
Areas Southerly of U.S.
Total area: ,
Upland 1 g;A jx
Red Mangrove Pi
Land Locked Lai
Upland Area ,
Transitional Bu
Upland Hammock
Shoreline Prote
West Buffer Zon
Upland Hammock Zone .
C.R.A. & Parking
Road Area .
Road area to t
Net Area . _
ol
T r1i
"N
0,
rA
QED MAt--AGQOVE.---
\N N
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lb,
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2-0
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1 6
2 2, 9 2b G. F.
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21
NE
lt-A All m 0
24570 S
2- —` 23
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Government Lo 8,Sec.28-66-28 is4t
esently unWeloped.
This parcel of land does not exh climax tt"Opical hardwood
hammocks: 's
s
This parcel of land does not exh +.t endanger species hammocks.
this parcel of land does not exh fit major wildife intensive
58.46 Acres use area.
There are no existing easements on this parcelif land.
3.08 Acres
55.38 Acres
There are no utilities existing, �n this parcel cif land.
'
This property is part of a 100 tear flood prong area.
There are no altered or d4svtvrbed lands on this!' parcel,there is an
25.05 Acres area cleared known as Old U:.S. No. 1 to the Nor of the existingU.S. No.l, which presently xhibits the old pari•all.y paved U.S. No. .
26.29 Acres
1.2Acres Sub -surface characteristic&4`Consist of Miami 04 lLe and the intended
disposal method of sewage 11 be septic tankst= ith a future Sewage
Treatment Plant.
Comments by Key Colony, Lyme Kephart, 414 SimonN'an St.,Key West,Fl.3 40
All parking will be off sty- t provided by each �ndivual homeowner
s }
{
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1-X ►�-I
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28.94
Acres
HOW
16.01
Acres
re
8.32
Acres
f
{
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•
4.61
Acres
•
16.0I
Acres
Zone
1.61
Acres
. 12.50
Acres
i Zone .
1.65
Acmes
•
. 0.25
Acres
--
•
12.50
Acres
p
i
` 1
•
0.52
Acres
m
"-
•
3.03
Acres
tere S� (1.65
Acres)
8.95
Acres
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CA `IOC
W 170.
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APPROVIED
SCALE: APPROVIED BY: DRAWN BY
REVISED
DATE:
k E CIO LO So i N C)
DRAWING NUMBER
of 7 SHEET