Item O6M
C ounty of f Monroe
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BOARD OF COUNTY COMMISSIONERS
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Mayor George Neugent, District 2
The Florida, Ke Se
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Mayor Pro Tern David Rice, District 4
Danny L. Kolhage, District I
Heather Carruthers, District 3
Sylvia J. Murphy, District 5
County Commission Meeting
October 18, 2017
Agenda Item Number: 0.6
Agenda Item Summary #3484
BULK ITEM: Yes DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Cynthia Hall (305) 292 -3470
3:00 P.M. Public Hearing
AGENDA ITEM WORDING: Approval to declare that an emergency exist in accordance with
F.S. 125.66(3) and approval to enact an Ordinance retroactive to September 4, 2017 amending
Chapter 11- Emergency Management and Emergency Service of the Monroe County Code to amend
Sec. 11 -2 to provide for disaster - generated debris removal from canals in order to protect public
health and safety.
ITEM BACKGROUND: The County has authority to adopt this ordinance pursuant to F.S. 252.38.
Staff upon consultation with our debris removal contractor, FEMA personnel and DEP personnel, is
recommending that this ordinance be considered for adoption in order to take a proactive approach to
coordinating and managing debris removal operations in canals as part of its overall emergency
management plan, recognizing that counties with a disaster - generated debris removal management
plan are better prepared to restore public services and ensure the public health and safety in the
aftermath of disaster. Previously, the ordinance covered only debris removal on public lands, private
roads and gated communities. Even though debris removal following a disaster is generally the
responsibility of the individual adjoining private property owners, a major or catastrophic disaster
event may result in enormous quantities of debris from private property landing in canals, resulting in
widespread immediate threats to the life, public health, and safety of the county. County staff has
determined that private property debris removal is necessary to protect the public health and safety in
a declared emergency when such debris poses a significant and immediate threat. Federal Emergency
Management Agency's (FEMA) Public Assistance Program will determine eligibility for removal of
debris from private roads and gated communities on a case by case basis so long as the debris
removal was necessary in the public interest to eliminate an immediate threat to life, public health and
safety and so long as the Federal government was held harmless and indemnified for all claims or loss
or damages resulting from the debris removal work.
The Board of County Commissioners approved Ordinance 013 -2008 providing for the entry onto
private land for removal of disaster - generated debris in order to protect safety, health, and welfare of
the public. On September 27, 2017, the BOCC passed Ordinance No. 018 -2017, extending authority
to collect debris on private property. This ordinance further extends that authority, into canals, where
public health and safety is imperiled.
This proposed ordinance will further the intent to protect the health and safety of the public and
provide a clear mechanism from FEMA reimbursement under certain circumstances as set forth in the
proposed ordinance.
This ordinance is being enacted under the emergency provisions of 125.66(3), therefore the
Board must by 4/5 vote declare an emergency exist and that the immediate enactment of this
ordinance is necessary. The Ordinance will have retroactive application to 9/4/17, the date
which Gov. Scott declared a State of Emergency due to Hurricane Irma.
PREVIOUS RELEVANT BOCC ACTION: On September 27, 2017, the BOCC approved an
amendment to Monroe County Code section 11 -1 et seq., extending the authority to remove debris
from private property (private roads and gated communities).
CONTRACT /AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval of Ordinance
DOCUMENTATION:
Ordinance amending Chapter 11 debris removal from canals strikethrough underline
Ordinance 018 -2017 adopted 9 -27 -2017
Memo, Debris Removal Canals
Notice of Int to Consider Adoption of Co Ord amending MCC re debris in canals
FINANCIAL IMPACT:
Effective Date: 9/4/17 (declared date of emergency by Gov. Scott)
Expiration Date:
Total Dollar Value of Contract: N/A
Total Cost to County: N/A
Current Year Portion: N/A
Budgeted: Yes
Source of Funds:
CPI: No
Indirect Costs: N/A
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: No If yes, amount:
Grant: No
County Match: N/A
Insurance Required: No
Additional Details:
N/A
REVIEWED BY:
Bob Shillinger
Budget and Finance
Maria Slavik
Kathy Peters
Board of County Commissioners
Completed
10/10/2017 3:03 PM
Completed
10/10/2017 3:09 PM
Completed
10/10/2017 3:42 PM
Completed
10/10/2017 3:46 PM
Pending
10/18/2017 9:00 AM
ORDINANCE -2017
AN ORDINANCE OF THE MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS CREATING SECTION 11 -2 OF
THE MONROE COUNTY CODE; RELATING TO EMERGENCY
MANAGEMENT AND DISASTER - GENERATED DEBRIS
REMOVAL; ADDING DEFINITIONS; ADDING EMERGENCY
RIGHT OF ENTRY ONTO PRIVATE ROADS AND GATED
COMMUNITIES AND CANALS ADDING INDEMNIFICATION;
PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL
OF ALL ORDINANCES INCONSISTENT HEREWITH;
PROVIDING FOR INCORPORATION INTO THE MONROE
COUNTY CODE OF ORDINANCES; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, this Ordinance is enacted under the emergency provisions of section 125.66(3),
Florida Statutes and the Board of County Commissioners of Monroe County, Florida hereby waive the
notice requirements of subsection (2) of 125.66, Florida Statutes, by a four - fifths vote and declares an
emergency exist and that the immediate enactment of this Ordinance is necessary; and
WHEREAS, the Monroe County Board of County Commissioners intent to make this ordinance
effective retroactively to September 4, 2017, the date Governor Scott declared a State of Emergency due
to Hurricane Irma; and
WHEREAS, in accordance with Metropolitan Dade County v. Chase Federal Housing
Corporation, et al., 737 So.2d 494 (Fla 1999) that provides that a retroactive provision of a legislative
act is valid, so long as vested rights are not adversely affected or destroyed or a new obligation or duty is
created or imposed, or an additional disability is established in connection with transactions or
considerations previously had or expiated, the Monroe County Board of County Commissioner finds
that this ordinance may be retroactive; and
WHEREAS, the County has authority to adopt this ordinance pursuant to Sec. 252.38, Florida
Statutes, as may be amended; and
WHEREAS, under Section 252.38(3)(a), Florida Statutes, in the event of a declaration of state
of local emergency, the political subdivision has the power and authority to waive procedures and
formalities otherwise required of the political subdivision, pertaining to various things, including
performance of public works and taking whatever prudent action is necessary to ensure the health, safety
and welfare of the community, incurring obligations, and appropriation and expenditure of public funds;
and
WHEREAS, it is the intent of the Monroe County Board of County Commissioners, in enacting
this ordinance, to take a proactive approach to coordinating and managing debris removal operations
both on land and in canals as part of its overall emergency management plan, recognizing that counties
with a disaster - generated debris removal management plan are better prepared to restore public services
and ensure the public health and safety in the aftermath of disaster; and
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WHEREAS, even though debris removal from private roads and gated communities and canals
following a disaster is generally the responsibility of the individual adjoining private property owners, a
major or catastrophic disaster event may result in enormous quantities of debris from private property '0
being placed on private roads and in canals for removal, resulting in widespread immediate threats to the
life, public health, and safety of the County's citizens, and F.S. 252.38(3) gives the County broad
powers to take actions to protect health and safety while under a declaration of local emergency and >
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WHEREAS, the County has determined that private property debris removal is necessary to CL
protect the public health and safety in a declared emergency when such debris poses a significant and
immediate threat; and
WHEREAS, the presence of submerged vessels, propane tanks and other debris in canals creates
a high concern that these items may leach hazardous materials into the waterway
WHEREAS, Florida Attorney General's opinions regarding use of public funds on private
property for health and welfare of the community, as documented in AGO 98 -22 and AGO 2002 -48,
indicate that the ability to remove debris from private property is firmly established by Florida law if the
general public's welfare is at stake; and
WHEREAS, the removal of such debris is critical for emergency access by police and fire
vehicles and to prevent additional hazards; and
WHEREAS, the Federal Emergency Management Agency's (FEMA) Public Assistance
Program provides for reimbursement for removal of disaster - related debris from public rights -of -way
and will determine eligibility for removal of debris from private roads and gated communities on a case
by case basis; and
WHEREAS, in determining eligibility under the Public Assistance Program for private roadway
and gated community and canal debris removal, FEMA and the State must be able to reach the following
conclusions in relation to the work in question:
1. Removal was the legal responsibility of an eligible applicant (County):
2. It was necessary in the public interest to eliminate an immediate threat to life, public
health and safety; and
3. The Federal government was held harmless and indemnified for all claims or loss or
damages resulting from the work; and
WHEREAS, the County needs to be able to act quickly to mitigate threats during and
immediately after emergency situations; and
WHEREAS, the efficient and safe removal of disaster related debris will promote the economic
recovery of the community and benefit the community -at- large;
Page 2 of 7
NOW THEREFORE BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
SECTION 1: Section 11 -2 shall be created to read as follows (additions are shown with underlines and
deletions are shown with str-ikethr -e gh- ):
11.2 Disaster - generated Debris Removal
11.2.1 Intent and purpose.
After declaration of a disaster in accordance with this chapter, the primary mission of the county
will be to protect lives and property, restore governmental services and clear public streets canals.
Depending on the magnitude of the disaster and after accomplishment of the primary mission, resources
may be available to the county that may not be available to a private property owner. This article will
establish a process by which the county may evaluate and, if necessary, remove disaster - generated
debris from private rights -of -way or gated communities or canals in the event of an immediate threat to
life, public health and safety after a significant disaster. While the county recognizes that, as a general
proposition, the removal of disaster - generated debris from private property is the responsibility of the
property owner, there are occasions when, because of the magnitude of the disaster and the threat posed
to life, health, and safety, there may be a compelling need to remove debris from private rights -of -way
and gated communities and canals as described in this article.
11.2.2 Definitions
The following words, terms and phrases, when used in this chapter, shall have the meanings
ascribed to them in this section, except where the context clearly indicates a different meaning:
Canal means an artificial waterway constructed to allow the passage of boats or other waterways
inland
County work forces means officers, employees, and agents of the County including, but not
limited to, contractor retained by the County to push, remove, store, or dispose of disaster - generated
debris or to otherwise act in response to the implementation of the County's disaster - generated debris
removal management plan.
Disaster - generated debris or debris means any material, including trees, branches, personal
property, marine vessels, and building material deposited on county -owned property or rights -of -way or
on private roads or in canals as a direct result of a major disaster or a catastrophic disaster.
(a) The term includes, but is not limited to:
(1) Vegetative debris, which means debris consisting of whole trees, tree stumps, tree
branches, tree trunks, and other leafy material.
(2) Hazardous limbs and hazardous trees, which means limbs or trees damaged in a major
disaster or a catastrophic disaster and in danger of falling on primary ingress or egress
routes or on county rights -of -way.
(3) Construction and demolition debris, which means debris created by the removal of
disaster - damaged interior and exterior materials from improved property such as lumber
and wood, gypsum wallboard, glass, metal, roofing material, tile, carpeting and floor
coverings, pipe, concrete, fully cured asphalt, equipment, furnishings, and fixtures.
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(4) HHW, which means household hazardous waste such as household cleaning supplies,
insecticides, herbicides, and other products or materials containing volatile chemicals that
catch fire, react, or explode under certain circumstances, or that are corrosive or toxic.
(5) E- waste, which means electronic waste such as computer monitors, televisions, and other
such electronics that contain hazardous materials.
(6) White goods, which means discarded household appliances such as refrigerators, freezers,
air conditioners, heat pumps, ovens, ranges, washing machines, clothes dryers, and water 0
heaters. >
(7) Putrescent debris, which means debris that will decompose or rot such as animal a
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carcasses and other fleshy organic matter.
(8) Marine vessels, which is a nautical term that means all kinds of craft designed for
transportation on water, including but not limited to boats, kayaks, canoes and other
watercraft.
(b) The term does not include:
(1) Debris on vacant lots, forests, heavily wooded areas, unimproved property, and unused
areas.
(2) Debris on agricultural lands used for crops and livestock.
(3) Concrete slabs or foundations -on- grade.
(4) Construction and demolition debris consisting of materials used in the reconstruction of
disaster - damaged improved property.
Private right -of -way means any non - public road located within the unincorporated area of
Monroe County with a designated name and road signage, the maintenance of which is not the legal
responsibility of the County. The term includes, but is not limited to, roads owned and maintained by
homeowners' associations, including gated communities, mobile home parks and roads for which no
individual or entity has claimed or exercised maintenance responsibility and canals. The term also
includes the land under common ownership immediately adjacent to the travel lane or paved surface, or
if no such common ownership exists, the land lying within the three -foot roadside shoulder area on both
sides of the travel lanes or paved surface of such road.
Public right -of -way means land owned or controlled by the County and intended to be used for
public passage, including but not limited to streets, alleys, sidewalks, canals, bike path, parkage and
driveways constructed thereon.
11.2.3 Removal of debris from private rights -of -way.
Following issuance of a local declaration of emergency in accordance with Chapter 252, Florida
Statutes and Monroe Countv Ordinance No. 028 -1987. as may be amended from time to time. the
County shall have the right of entry and authority to remove disaster - generated debris located within
unincorporated Monroe County on County -owned property, canals whether privately or publicly
owned) County -owned roads and from private rights -of -way when such debris is determined to pose an
immediate threat to the health, safety and welfare of the community. Pursuant to the authority set forth
in article I of this chapter, the emergency management director shall determine whether there is an
immediate threat to the public health, safety, and welfare sufficient to warrant removal of said debris
based on one or more of the following factors:
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(a) There is a significant likelihood that rescue vehicles will be significantly hindered from
11.2.4 Responsibility of private property owners.
(a) Any individual who places debris in the private or public rights -of -way shall be responsible for
assuring that the placement of any disaster - generated debris for removal by county work forces
satisfies each of the following conditions:
(1) The disaster - generated debris shall be neatly stacked, piled, or placed with its leading
edge lying within the three -foot roadside shoulder area on either side of the travel lanes
of the road.
(2) The disaster - generated debris shall be separated into stacks or piles of the following types
of debris:
a. Putrescent debris and mixed common household items.
b. Vegetative debris.
Page 5 of 7
rendering emergency services to residential and commercial property should the debris be
allowed to remain in place absent county removal.
(b)
The type of debris is such that it may reasonably cause disease, illness, or sickness which could
injure or adversely affect the health, safety, or general welfare of those residing and working in
the area if it is allowed to remain.
(c)
The clearing is necessary to effectuate orderly and expeditious restoration of county -wide utility
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services including, but not limited to, water, sewer, power and telecommunications.
(d)
The debris prevents garbage collection thereby creating a public health and safety hazard.
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(e)
The debris inhibits access to school buses and mass transit thereby interrupting recovery and
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normalization post- disaster.
(f)
The debris becomes a fire hazard which is susceptible to igniting and causing damage to property
and risking the safety of the public.
(g)
The debris causes obstruction to mail boxes restricting the public's access to send and receive
important documents.
(h)
The debris is likely to harbor vermin and reptiles that are potentially poisonous.
(i)
The debris contains contaminants which have a reasonable likelihood of leeching into the soil
and /or aquifer of the county.
(j)
The debris has a substantial negative impact in preventing or adversely affecting emergency
repairs to buildings and /or property.
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(k)
The debris presents a reasonable danger of being transported by wind and /or water into the
surrounding areas of the county and thereby increasing the cost of recovery and removal.
(1)
The debris poses a significant likelihood of, if left over time, producing mold which would be
injurious to public health.
(m)
The presence of the debris significantly adversely impacts the county's recovery efforts.
(n)
The debris significantly interferes with drainage or water runoff, so as to be a significant hazard
in the event of significant rainfall.
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(o)
The sheer volume of the debris is such that it is impractical and unreasonable to remove in an
orderly and efficient manner absent action by the county.
(p)
The type, extent and nature of the debris is such that it would cause much greater damage if the
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debris was not removed immediately.,
(q)
The debris in the canals, including submerged or partially submerged vessels and other debris, is
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rendering the canals impassible or extremely dangerous to vessels, preventing movement down
the canals by first responders as well as citizens in the area.
11.2.4 Responsibility of private property owners.
(a) Any individual who places debris in the private or public rights -of -way shall be responsible for
assuring that the placement of any disaster - generated debris for removal by county work forces
satisfies each of the following conditions:
(1) The disaster - generated debris shall be neatly stacked, piled, or placed with its leading
edge lying within the three -foot roadside shoulder area on either side of the travel lanes
of the road.
(2) The disaster - generated debris shall be separated into stacks or piles of the following types
of debris:
a. Putrescent debris and mixed common household items.
b. Vegetative debris.
Page 5 of 7
C. Construction and demolition debris.
d. White goods.
e. Hazardous household waste and electronic waste.
(3) The disaster - generated debris shall be placed so that it does not block the roadway, traffic r_
signs and signals, or stormwater structures. '0
(4) The disaster - generated debris shall be placed so that it is not under any power lines, not
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on top of any water meters, or not within three (3) feet of any power poles, fire hydrants, 0
vehicles, mailboxes, or fences.
(b) Any damage to personal property by county work forces resulting from the placement of a
disaster - generated debris in a manner inconsistent with this section shall be the responsibility of
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the private property owner, or individual otherwise in possession of private property, who
misplaced such debris.
(c) Any owners of private property, or any individuals otherwise in possession of private property,
who stack, pile, or otherwise place anything for removal on county rights -of -way or on private
roads which is deemed not to be disaster - generated debris, shall be responsible for removing
such unauthorized debris no later than twenty -four (24) hours after notification of such removal
requirement by a member of the county work forces. Any such owner or other individual who
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fails to timely comply with such removal requirement shall thereafter be responsible for any
costs associated with the removal of such unauthorized debris by county work forces.
11.2.5 Indemnification and hold harmless.
Prior to removal of debris from private rights -of -way by the county, as contemplated herein, each
property owner adjacent to a private road or street or gated community association shall indemnify and
hold harmless, to the maximum extent permitted by law, the Federal, State, and local government and all
employees, officers and agents of the Federal, State, and local government connected with the rendering
of such service.
11.2.6 Emergency roadway clearance.
Nothing contained herein shall preclude a first response by the county to clear and push debris
from all rights -of -way (both public and private) necessary for the movement of emergency vehicles
including police, fire and ambulance within the first 70 hours after a disaster declaration.
SECTION 2: SEVERABILITY. If any portion of this ordinance is for any reason held invalid or
declared to be unconstitutional, inoperative or void, such holding shall not affect the remaining portions
of this ordinance. If this ordinance or any provision thereof shall be held to be inapplicable to any
person, property or circumstances, such holding shall not affect its applicability to any other person,
property or circumstances.
SECTION 3: CONFLICT WITH OTHER ORDINANCES. All ordinances or parts of ordinances in
conflict with this ordinance are hereby repealed to the extent of said conflict.
SECTION 4: INCLUSION IN CODE OF ORDINANCES. The provisions of this ordinance shall be
included and incorporated in the Code of Ordinances of the County of Monroe, Florida, as an addition or
amendment thereto, and shall be appropriately renumbered to conform to the uniform numbering system
of the Code.
Page 6 of 7
SECTION 5: TRANSMITTAL AND EFFECTIVE DATE. The Ordinance shall have retroactive
application to September 4, 2017. This Ordinance is enacted under the emergency provisions of section
125.66(3), Florida Statutes. The Board of County Commissioners of Monroe County, Florida hereby
waives the notice requirements of subsection (2) by a four - fifths vote and declares an emergency exist
and that the immediate enactment of this Ordinance is necessary. In accordance with F.S. 125.66(3),
certified copies of the Ordinance shall be filed with the Department of State as soon after enactment as is
practicable and shall be deemed to be filed when a copy has been accepted by postal authorities of the
Government of the United States for special delivery by certified mail to the Department of State.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a
regular meeting of the Board held on the day of , 2017.
Mayor George Neugent
Mayor Pro Tern David Rice
Commissioner Danny L. Kolhage
Commissioner Sylvia J. Murphy
Commissioner Heather Carruthers
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
ma
(SEAL) Mayor George Neugent
ATTEST: KEVIN MADOK, CLERK
By
Deputy Clerk
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MR
°- Kevin Madok, cPA
Clerk of the Circuit Court & Comptroller — Monroe County, Florida
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October 2, 2017
Department of State
Administrative Code & Register
500 S Bronough Street
Tallahassee FL 32399 -0250
To Whom It May Concern,
Attached is an electronic copy of Ordinance No. 018 -2017 of the Monroe County Board
of County Commissioners creating Section 11 -2 of the Monroe County Code; relating to
emergency management and disaster - generated debris removal; adding definitions; adding
emergency right of entry onto private roads and gated communities; adding indemnification;
providing for severability; providing for the repeal of all Ordinances inconsistent herewith;
providing for incorporation into the Monroe County Code of Ordinances; and providing for an
effective date.
This Ordinance was adopted by the Monroe County Board of County Commissioners at a
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special meeting, held in formal session, on September 27, 2017. Should you have any questions,
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please feel free to contact me at (305) 292 -3550.
Respectfully Submitted,
Kevin Madok, CPA, Clerk of
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the Circuit Court & Comptroller &
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ex- officio to the Monroe County
Board of County Commissioners
by: Pamela G. Hancock, D.C.
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cc: County Attorney
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Engineering
BOCC
File
KEY WEST
500 Whitehead Street
Key West, Florida 33040
305- 294 -4641
MARATHON
3117 Overseas Highway
Marathon, Florida 33050
305 - 289 -6027
PLANTATION KEY
88820 Overseas Highway
Plantation Key, Florida 33070
305- 852 -7145
PK/ROTH BUILDING
50 High Point Road
Plantation Key Florida 33070
305- Packet Pg. 2517
ORDINANCE 018 -2017
AN ORDINANCE OF THE MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS CREATING SECTION 11 -2 OF
THE MONROE COUNTY CODE; RELATING TO EMERGENCY
MANAGEMENT AND DISASTER - GENERATED DEBRIS
REMOVAL; ADDING DEFINITIONS; ADDING EMERGENCY
RIGHT OF ENTRY ONTO PRIVATE ROADS AND GATED
COMMUNITIES; ADDING INDEMNIFICATION; PROVIDING
FOR SEVERABILITY; PROVIDING FOR REPEAL OF ALL
ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR
INCORPORATION INTO THE MONROE COUNTY CODE OF
ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, this Ordinance is enacted under the emergency provisions of section 125.66(3),
Florida Statutes and the Board of County Commissioners of Monroe County, Florida hereby waive the
notice requirements of subsection (2) of 125.66, Florida Statutes, by a four -fifths vote and declares an
emergency exist and that the immediate enactment of this Ordinance is necessary; and
WHEREAS, the Monroe County Board of County Commissioners intent to make this ordinance
effective retroactively to September 4, 2017, the date Governor Scott declared a State of Emergency due
to Hurricane Irma; and
0
WHEREAS, in accordance with Metropolitan Dade County v. Chase Federal Housing
Corporation, et al., 737 So.2d 494 (Fla 1999) that provides that a retroactive provision of a legislative
act is valid, so long as vested rights are not adversely affected or destroyed or a new obligation or duty is
created or imposed, or an additional disability is established in connection with transactions or
considerations previously had or expiated, the Monroe County Board of County Commissioner finds
that this ordinance may be retroactive; and N
WHEREAS, the County has authority to adopt this ordinance pursuant to Sec. 252.38, Florida
Statutes, as may be amended; and
WHEREAS, it is the intent of the Monroe County Board of County Commissioners, in enacting
this ordinance, to take a proactive approach to coordinating and managing debris removal operations as
part of its overall emergency management plan, recognizing that counties with a disaster - generated
debris removal management plan are better prepared to restore public services and ensure the public
health and safety in the aftermath of disaster; and
WHEREAS, even though debris removal from private roads and gated communities following a
disaster is generally the responsibility of the individual adjoining private property owners, a major or
catastrophic disaster event may result in enormous quantities of debris from private property being
placed on private roads for removal, resulting in widespread immediate threats to the life, public health,
and safety of the county; and
Page 1 of 8
WHEREAS, the County has determined that private property debris removal is necessary to
protect the public health and safety in a declared emergency when such debris poses a significant and
immediate threat; and
WHEREAS, Florida Attorney General's opinions regarding use of public funds on private
property for health and welfare of the community, as documented in AGO 98 -22 and AGO 2002 -48,
indicate that the ability to remove debris from private property is firmly established by Florida law if the
general public's welfare is at stake; and
WHEREAS, the removal of such debris is critical for emergency access by police and fire
vehicles and to prevent additional hazards; and
WHEREAS, the Federal Emergency Management Agency's (FEMA) Public Assistance
Program provides for reimbursement for removal of disaster - related debris from public rights -of -way
and will determine eligibility for removal of debris from private roads and gated communities on a case
by case basis; and
WHEREAS, in determining eligibility under the Public Assistance Program for private roadway e
and gated community debris removal, FEMA and the State must be able to reach the following
conclusions in relation to the work in question:
1. Removal was the legal responsibility of an eligible applicant (County):
2. It was necessary in the public interest to eliminate an immediate threat to life, public
health and safety; and -
3. The Federal government was held harmless and indemnified for all claims or loss or E
damages resulting from the work; and
WHEREAS, the County needs to be able to act quickly to mitigate threats during and
immediately after emergency situations; and
WHEREAS, the efficient and safe removal of disaster related debris will promote the economic
recovery of the community and benefit the community -at- large;
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
SECTION 1: Section 11 -2 shall be created to read as follows:
11.2 Disaster - generated Debris Removal
11.2.1 Intent and purpose.
After declaration of a disaster in accordance with this chapter, the primary mission of the county
will be to protect lives and property, restore governmental services and clear public streets. Depending
on the magnitude of the disaster and after accomplishment of the primary mission, resources may be
Page 2 of 8
available to the county that may not be available to a private property owner. This article will establish a
process by which the county may evaluate and, if necessary, remove disaster - generated debris from
private rights -of -way or gated communities in the event of an immediate threat to life, public health and
safety after a significant disaster. While the county recognizes that, as a general proposition, the removal
of disaster - generated debris from private property is the responsibility of the property owner, there are
occasions when, because of the magnitude of the disaster and the threat posed to life, health, and safety,
there may be a compelling need to remove debris from private rights -of -way and gated communities as
described in this article.
11.2.2 Definitions
The following words, terms and phrases, when used in this chapter, shall have the meanings
ascribed to them in this section, except where the context clearly indicates a different meaning:
County work forces means officers, employees, and agents of the County including, but not
limited to, contractor retained by the County to push, remove, store, or dispose of disaster - generated 10
debris or to otherwise act in response to the implementation of the County's disaster - generated debris
removal management plan. 0
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Disaster - generated debris or debris means any material, including trees, branches, personal
property, and building material deposited on county -owned property or rights -of -way or on private roads
as a direct result of a major disaster or a catastrophic disaster.
(a) The term includes, but is not limited to: N
(1) Vegetative debris, which means debris consisting of whole trees, tree stumps, tree
branches, tree trunks, and other leafy material.
(2) Hazardous limbs and hazardous trees, which means limbs or trees damaged in a major
disaster or a catastrophic disaster and in danger of falling on primary ingress or egress
routes or on county rights -of -way.
(3) Construction and demolition debris, which means debris created by the removal of
disaster - damaged interior and exterior materials from improved property such as lumber
and wood, gypsum wallboard, glass, metal, roofing material, tile, carpeting and floor
coverings, pipe, concrete, fully cured asphalt, equipment, furnishings, and fixtures.
(4) HHW, which means household hazardous waste such as household cleaning supplies,
insecticides, herbicides, and other products or materials containing volatile chemicals that
catch fire, react, or explode under certain circumstances, or that are corrosive or toxic.
(5) E- waste, which means electronic waste such as computer monitors, televisions, and other
such electronics that contain hazardous materials.
Page 3 of 8
(6) White goods, which means discarded household appliances such as refrigerators, freezers,
air conditioners, heat pumps, ovens, ranges, washing machines, clothes dryers, and water
heaters.
(7) Putrescent debris, which means debris that will decompose or rot such as animal
carcasses and other fleshy organic matter.
(b) The term does not include:
(1) Debris from vacant lots, forests, heavily wooded areas, unimproved property, and unused
areas.
(2) Debris on agricultural lands used for crops and livestock.
(3) Concrete slabs or foundations -on- grade.
(4) Construction and demolition debris consisting of materials used in the reconstruction of
disaster - damaged improved property.
Private right -of -way means any non - public road located within the unincorporated area of 1.
Monroe County with a designated name and road signage, the maintenance of which is not the legal
0
responsibility of the County. The term includes, but is not limited to, roads owned and maintained by
homeowners' associations, including gated communities, mobile home parks and roads for which no
individual or entity has claimed or exercised maintenance responsibility. The term also includes the land
under common ownership immediately adjacent to the travel lane or paved surface, or if no such
common ownership exists, the land lying within the three -foot roadside shoulder area on both sides of 0
the travel lanes or paved surface of such road.
Public right -of -way means land owned or controlled by the County and intended to be used for
public passage, including but not limited to streets, alleys, sidewalks, bike path, parkage and driveways
constructed thereon.
11.2.3 Removal of debris from private rights -of -way.
The County shall have the right of entry and authority to remove disaster - generated debris
located within unincorporated Monroe County on County -owned property, County -owned roads and
from private rights -of -way when such debris is determined to pose an immediate threat to the health,
safety and welfare of the community. Pursuant to the authority set forth in article I of this chapter, the
emergency management director shall determine whether there is an immediate threat to the public
health, safety, and welfare sufficient to warrant removal of said debris based on one or more of the
following factors:
Page 4of8
(a) There is a significant likelihood that rescue vehicles will be significantly hindered from
rendering emergency services to residential and commercial property should the debris be
allowed to remain in place absent county removal.
(b) The type of debris is such that it may reasonably cause disease, illness, or sickness which could
injure or adversely affect the health, safety, or general welfare of those residing and working in
the area if it is allowed to remain.
(c) The clearing is necessary to effectuate orderly and expeditious restoration of county -wide utility
services including, but not limited to, water, sewer, power and telecommunications.
(d) The debris prevents garbage collection thereby creating a public health and safety hazard.
(e) The debris inhibits access to school buses and mass transit thereby interrupting recovery and
normalization post- disaster.
(f) The debris becomes a fire hazard which is susceptible to igniting and causing damage to property
and risking the safety of the public.
(g) The debris causes obstruction to mail boxes restricting the public's access to send and receive
important documents. _
0
(h) The debris is likely to harbor vermin and reptiles that are potentially poisonous.
0
(i) The debris contains contaminants which have a reasonable likelihood of leeching into the soil
and /or aquifer of the county.
(j) The debris has a substantial negative impact in preventing or adversely affecting emergency
repairs to buildings and /or property.
(k) The debris presents a reasonable danger of being transported by wind and /or water into the
surrounding areas of the county and thereby increasing the cost of recovery and removal.
(1) The debris poses a significant likelihood of, if left over time, producing mold which would be
injurious to public health.
(m) The presence of the debris significantly adversely impacts the county's recovery efforts.
(n) The debris significantly interferes with drainage or water runoff, so as to be a significant hazard
in the event of significant rainfall.
(o) The sheer volume of the debris is such that it is impractical and unreasonable to remove in an
orderly and efficient manner absent action by the county.
Page 5 of 8
(p) The type, extent and nature of the debris is such that it would cause much greater damage if the
debris was not removed immediately.
11.2.4 Responsibility of private property owners.
(a) Any individual who places debris in the private or public rights -of -way shall be responsible for
assuring that the placement of any disaster - generated debris for removal by county work forces
satisfies each of the following conditions:
(1) The disaster - generated debris shall be neatly stacked, piled, or placed with its leading
edge lying within the three -foot roadside shoulder area on either side of the travel lanes
of the road.
(2) The disaster- generated debris shall be separated into stacks or piles of the following types
of debris:
a. Putrescent debris and mixed common household items.
b. Vegetative debris.
C. Construction and demolition debris.
d. White goods.
e. Hazardous household waste and electronic waste.
(3) The disaster - generated debris shall be placed so that it does not block the roadway, traffic
signs and signals, or stormwater structures.
(4) The disaster - generated debris shall be placed so that it is not under any power lines, not
on top of any water meters, or not within three (3) feet of any power poles, fire hydrants,
vehicles, mailboxes, or fences.
(b) Any damage to personal property by county work forces resulting from the placement of
disaster - generated debris in a manner inconsistent with this section shall be the responsibility of
the private property owner, or individual otherwise in possession of private property, who
misplaced such debris.
(c) Any owners of private property, or any individuals otherwise in possession of private property,
who stack, pile, or otherwise place anything for removal on county rights -of -way or on private
roads which is deemed not to be disaster - generated debris, shall be responsible for removing
such unauthorized debris no later than twenty -four (24) hours after notification of such removal
I
Page 6 of 8
requirement by a member of the county work forces. Any such owner or other individual who
fails to timely comply with such removal requirement shall thereafter be responsible for any
costs associated with the removal of such unauthorized debris by county work forces.
11.2.5 Indemnification and hold harmless.
Prior to removal of debris from private rights -of -way by the county, as contemplated herein, each
property owner adjacent to a private road or street or gated community association shall indemnify and
hold harmless, to the maximum extent permitted by law, the Federal, State, and local government and all
employees, officers and agents of the Federal, State, and local government connected with the rendering
of such service.
11.2.6 Emergency roadway clearance.
Nothing contained herein shall preclude a first response by the county to clear and push debris
from all rights -of -way (both public and private) necessary for the movement of emergency vehicles
including police, fire and ambulance within the first 70 hours after a disaster declaration.
SECTION 2: SEVERABILITY. If any portion of this ordinance is for any reason held invalid or
declared to be unconstitutional, inoperative or void, such holding shall not affect the remaining portions 0
of this ordinance. If this ordinance or any provision thereof shall be held to be inapplicable to any
person, property or circumstances, such holding shall not affect its applicability to any other person, 0.
property or circumstances.
SECTION 3: CONFLICT WITH OTHER ORDINANCES. All ordinances or parts of ordinances in
conflict with this ordinance are hereby repealed to the extent of said conflict.
SECTION 4: INCLUSION IN CODE OF ORDINANCES. The provisions of this ordinance shall be
included and incorporated in the Code of Ordinances of the County of Monroe, Florida, as an addition or
amendment thereto, and shall be appropriately renumbered to conform to the uniform numbering system
of the Code.
SECTION 5: TRANSMITTAL AND EFFECTIVE DATE. The Ordinance shall have retroactive
application to September 4, 2017. This Ordinance is enacted under the emergency provisions of section
125.66(3), Florida Statutes. The Board of County Commissioners of Monroe County, Florida hereby
waives the notice requirements of subsection (2) by a four -fifths vote and declares an emergency exist
and that the immediate enactment of this Ordinance is necessary. In accordance with F.S. 125.66(3),
certified copies of the Ordinance shall be filed with the Department of State as soon after enactment as is
practicable and shall be deemed to be filed when a copy has been accepted by postal authorities of the
Government of the United States for special delivery by certified mail to the Department of State.
Page 7of8
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a
regular meeting of the Board held on the 27 day of September, 2017.
AT'"?
Mayor George Neugent Yes
Mayor Pro Tem David Rice Yes
Commissioner Danny L. Kolhage Yes
Commissioner Sylvia J. Murphy Yes
Commissioner Heather Carruthers Yes
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
BY 4
Ma or George Neug nt
MAWK, CPA, Cleric
By -1 �
eputy Clerk
(� � ON�R�,O�E COUNTY ATTORNEY
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Page 8 of 8
MEMORANDUM
Office of the Monroe County Attorney
TO: Mayor, County Commissioners, County Administrator
THROUGH: Bob Shillinger, County Attorney
Christine Hurley, Assistant County Administrator
FROM: Cynthia L. Hall, Assistant County Attorney
DATE: October 10, 2017
SUBJECT: Proposed ordinance, debris and vessel removal from canals
Attached is a proposed ordinance, amending Section 11 -2 of the Monroe County Code. The
purpose of the amendment is to give the County the legal authority to remove marine debris,
including vessels, from canals.
In 2008, the Board of County Commissioners adopted Ordinance 013 -2008, providing authority i5
for County staff and /or contractors to enter onto private land in the event of a declared ii
emergency for removal of disaster - generated debris, in order to protect the safety, health and
welfare of the public. On September 27, 2017, the BOCC adopted Ordinance 018 -2017, adding 0
authority for emergency right of entry onto private roads and gated communities.
0
Passage through numerous canals within the County has been rendered difficult if not impossible
in the aftermath of Hurricane Irma, as a result of submerged or partially submerged vessels,
trees, and other marine debris. Vessels, barbeques, coolers, and other debris in the canals are
leaching or potentially will begin to leach hazardous substances, including marine fuel and L)
propane. Cumulatively this creates an extremely unsafe situation. The attached ordinance >
extends the right of entry in the event of a declared emergency only to canals.
Under Section 252.38(3), Florida Statutes, the political subdivision has the authority to take
whatever prudent action is necessary to ensure the health, safety and welfare of the community
That section forms the legal authority for the actions contemplated under this ordinance.
In this case, notice of this proposed ordinance was published beginning on 10 -12 -2017, which is
less than the 10 days' notice otherwise required under Section 125.66, Florida Statutes. This
action is allowable under Section 252.38(3)(a), Florida Statutes, which states that in the event of
a declaration of local emergency, the political subdivision has the power and authority to waive
procedures and formalities otherwise required of the subdivision. Findings to this effect are
included in the draft ordinance.
NOTICE OF INTENTION TO CONSIDER
ADOPTION OF COUNTY ORDINANCE
NOTICE IS HEREBY GIVEN TO WHOM IT MAY CONCERN that on October 18, 2017 at 3:00
P.M., or as soon thereafter as may be heard, in the Marathon Government Center, 2798 Overseas
Highway, Monroe County, Florida, the Board of County Commissioners of Monroe County, Florida,
intends to consider the adoption of the following County ordinance:
AN ORDINANCE OF THE MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS CREATING SECTION 11 -2
OF THE MONROE COUNTY CODE; RELATING TO
EMERGENCY MANAGEMENT AND DISASTER -
GENERATED DEBRIS REMOVAL; ADDING 0
DEFINITIONS; ADDING EMERGENCY RIGHT OF ENTRY
ONTO PRIVATE ROADS AND GATED COMMUNITIES m
AND CANALS; ADDING INDEMNIFICATION;
PROVIDING FOR SEVERABILITY; PROVIDING FOR
REPEAL OF ALL ORDINANCES INCONSISTENT
HEREWITH; PROVIDING FOR INCORPORATION INTO
THE MONROE COUNTY CODE OF ORDINANCES; AND
PROVIDING FOR AN EFFECTIVE DATE.'
Pursuant to Section 286.0105, Florida Statutes, notice is given that if a person decides to appeal any
decision made by the Board with respect to any matter considered at such hearings or meetings, he will
need a record of the proceedings, and that, for such purpose, he may need to ensure that a verbatim
record of the proceedings is made, which record includes the testimony and evidence upon which the
appeal is to be based.
ADA ASSISTANCE: If you are a person with a disability who needs special accommodations in order to
participate in this proceeding, please contact the County Administrator's Office, by phoning (305) 292 -4441,
between the hours of 8:30 a.m. - 5:00 p.m., no later than five (5) calendar days prior to the scheduled
meeting; if you are hearing or voice impaired, call "711':
Dated at Key West, Florida, this 10 day of October, 2017.
(SEAL)
KEVIN MADOK, Clerk of the Circuit Court
and ex officio Clerk of the Board of County
Commissioners of Monroe County, Florida
Publication dates:
KW Citizen (Weekend Edition: 10/14/17 - 10/15/17)
Keynoter (Sa) 10/14/17
Reporter (Fr) 10/13/17