Item P5BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 1119/12
Bulk Item: Yes No xx
Division: Cogqty Attorney/Growth M ana ement
Staff Contact Person/Phone #: Christine Hurley:.x2517
Bob Shillm" er x3470
AGENDA ITEM WORDING: Discussion and direction to staff to commence the legislative process
to adopt an ordinance amending the County's Land Development Code and flood plain management
regulations to ensure that permits issued for development within the flood plain are consistent with the
Federal Endangered Species Act and with a target date for a public hearing on adoption of the proposed
ordinance of April 18, 2012.
ITEM BACKGROUND: The Federal Emergency Management Agency (FEMA) has threatened to
place the County on probation and ultimately suspend the County from the National Flood Insurance
Program (NFEP) if it does not adopt ordinances which implement the settlement agreement which
FEMA and the US Fish &Wildlife Service (FWS) entered into to resolve the Florida Key Deer v.
Craig Fugate case. FEMA's suggested ordinance language seeks to transfer the Federal governments
duties under the Endangered Species Act to the County in a manner that is not only unconstitutional
under Florida law but also exposes the County to an estimated $65 million in liability for takings
claims.
As a result of FEMA's threat, staff has drafted an ordinance which complies with the Endangered
Species Act ( ESA), state and County requirements, and recognizes the responsibility of FEMA and
FWS in the implementation of the ESA. Staff requests authorization to begin the legislative process.
The target adoption schedule would be:
a) Development Revision Committee on February 28, 2012
b) Planning Commission hearing for review and recommendation on March 28, 2012;
c) BOCC's public hearing for consideration and adoption on April 18, 2012;
d) Transmittal to the FL Dept. of Economic Opportunity (DEO) by April 28, 2012; and
e) Deadline for DEO review and approval is no later than June 15, 2012.
PREVIOUS RELEVANT BOCC ACTION: Board has discussed this case and the implications at
various times since April 2010. BOCC briefed by FEMA & FWS staff on October 20, 2010.
CONTRACT/AGREEMENT CHANGES: nla
STAFF RECOMMENDATIONS: Approval of authorization to start the
legislative process,
g
TOTAL COST: nla INDIRECT COST: nla BUDGETED: nla
COST TO COUNTY: nla SOURCE OF S: nla
REVENUE PRODUCING: nla AMOUNT PER MONTH Year
APPROVED BY: County Atty X OMB/Purchasing Risk Management
DOCUMENTATION: Included X
DISPOSITION:
Not Required
AGENDA ITEM # P-5
Revised
(Additional backup)
DRAFT
1/2/2011
DRAFT ORDINANCE NOT USING SPECIES ASSESSMENT GUIDES — SENDING
OWNERS DIRECTLY TO FWS.
Sec. 122-10.Inclusion of United States Federal Emergency Management Agency (FEMA) and
United States Fish and Wildlife Service (FWS) Requirements in Final Permit Determinations
(a) Purpose and intent. It is the purpose of Section 122-10 to implement regulations that
will assure, consistent with the loth Amendment to the U.S. Constitution., state and
County regulations, proper record retention and notification of FEMA and FWS
regarding permits filed with or issued by Monroe County.
(b) Lands to which this Section apply. FEMA and FWS have provided the Species Focus
Area Maps (SFAMs) mailed to Monroe County and dated XX, 2011, and a listing of real
estate numbers of parcels (RE list) mailed to Monroe County and dated XX, 2011, that
are within the SFAMs and that have been identified by FWS. The FWS and FEMA
identified properties are hereby declared to be a part of these regulations
N Rules for interpreting SFAMs. The boundaries of the flood hazard areas shown on the
FEMA SFAMs maybe determined by scaling distances. Required interpretations of
those maps for precise locations of such boundaries shall be made by the County
Planning Director or his/her designee, in consultation with the building official.
(d) Administration of Development Approval in Species Focus Areas.
a. SFA Review Required. For parcels or lots shown within the SFAMs in which an
application for development permit has been made, if the SFAM indicates the
parcel or lot contains only unsuitable habitat for any of the following species:
Key Largo Cotton Mouse, Key Largo woodrat, Key tree -cactus, Lower Keys marsh
rabbit, Eastern indigo snake, Key deer, Schaus swallowtail butterfly, silver rice
rate, and Stock Island tree snail, and the parcel or lot is not listed on the RE list,
the Planning Director or his/her designee shall provide for a notation in the
development application permit files that indicates:
i. The name of the official that made the determination;
ii. The date of the determination;
iii. The date of the SFAM and RE list used to make the determination.
Once the determination has been made that a parcel or lot contains unsuitable
habitat, action may be taken on the permit application by Monroe County staff.
MC - 038491 /000001 - 3348412 Q
DRAFT
1 /21201'1
b. FWS Approval. For parcels or lots shown within the SFAMs in which an
application for development permit has been made, if the SFAM indicates the
parcel or lot contains suitable habitat for any of the following sources: Key Largo
Cotton Mouse, Key Largo woodrat, Key tree -cactus, Lower Keys marsh rabbit,
Eastern indigo snake, Key deer, Schaus swallowtail butterfly, silver rice rat, Stock
Island tree snail, and the parcel or lot is listed on the RE list, the Planning
Director or his/her designee shall require property owners to apply to FWS for
any FWS required approval or FWS building conditions prior to issuing any
development approval and shall require the following:
i. Property Owners shall request FINS review prior to applying for any
permit for new development.
ii. Once the property owner has recieved from the FINS a letter stating the
results of the FWS review, the letter shall be submitted to the County,
accompanied by County form fora Permit.
iii. Based on the requirements contained in an FWS letter, the County shall
require the owner of the property to sign a form acknowledging
agreement to the FINS recommendations and the County shall maintain
the acknowledgement form in the permit file.
iv. The County shall, based on the acknowledgement form from the
property owner, incorporate the FWS letter recommendations into any
final development permit
c. Enforcement. Violation of this section, including any development constructed
not in accordance with the owner acknowledged FINS conditions, are hereby
deemed to be violations of the County Code and may be enforced as follows:
The County may utilize the administrative enforcement procedures set
forth in Chapter 8, Monroe County Code of Ordinances;
ii. The County's Growth Management Director may make a formal
complaint to the U.S. FWS Office of law Enforcement;
iii. The County may file an action in a court of competent jurisdiction seeking
damages as well as injunctive and/or equitable relief; and/or
iv. Knowing violations of this section may be prosecuted in the same manner
as misdemeanors are prosecuted in the name of the State in a court
having jurisdiction of misdemeanors by the prosecuting attorney thereof
2
\\DC - 038491/000001 - 3348412 v2
DRAFT
1/212011
and upon conviction shall be punished by a fine not to exceed $500
and/or imprisonment in the county jail not to exceed 60 days, Each day a
violation exists shall constitute a separate offense.
MC - 038491/000001 - 3348412 Q