Item M61
CM
ounty of onroe
BOARD OF COUNTY COMMISSIONERS
Mayor George Neugent, District 2
Mayor Pro Tem David Rice, District 4
TheFloridaKeys
Danny L. Kolhage, District 1
Heather Carruthers, District 3
Sylvia J. Murphy, District 5
County Commission Meeting
December 14, 2016
Agenda Item Number: M.6
Agenda Item Summary #2436
BULK ITEM: DEPARTMENT:
No Sustainability
TIME APPROXIMATE:STAFF CONTACT:
Rhonda Haag (305) 453-8774
2:00 PM
AGENDA ITEM WORDING:
Part 2 (of 3) of the review and discussion of the draft Final Report
of the tidal flooding roads demonstration projects.
ITEM BACKGROUND:
The King Tides in 2015 provided a preview of what the County can
expect as sea level rise becomes a reality. The impacts exemplify flooding from events but also from
more regular tidal intervals that would be expected to be more impactful with higher sea levels.
Knowing that the County would be addressing increased flooding from either King Tides, storm
rmining future flood risk scenarios and the policy framework
for making these decisions relative to ongoing roadway improvement projects. Two communities
were chosen for this study (where impacts from the King Tides in 2015 were highest), one in Key
Largo and one in Big Pine Key. Specific roadway areas within those communities were further
defined as the Shaw, Crane, Adams area in Key Largo area as well as Father Tony Way and the
Avenues in Big Pine Key.
Pilot Roads Project Linkage to GreenKeys
Earlier this year, Monroe County accepted the GreenKeys Sustainability Action Plan which had
several recommendations related to infrastructure planning in light of future sea level rise
projections. The GreenKeys plan showed that approximately 150 miles of County roadways may be
exposed to intermittent flooding by 2030, so the recommendations design criteria will need to
consider this larger county-wide need to assure that further recommendations are developed
appropriately.
Recommendations from the GreenKeys Plan relevant to this Pilot Study include:
1-Comprehensive Feasibility Study for Enhanced Stormwater and Tidewater
Criteria (prioritizing areas) for near-term areas subject to inundation risk, including nuisance flooding (in
two locations).
2-countywide roads analysis to identify near-term roads subject to inundation risk,
including nuisance flooding. This will include researching where related green infrastructure would be
appropriate. Increase the percentag
4EGOIX4K
1
2-new nuisance flooding data informs future road decisions. These data will also
need to be considered for future road decisions. This will require coordination with FDOT for impacts to
State Roads (U.S. Highway 1).
Pilot Roads Report Overview
The Final Report for the Pilot Roads project is being presented to the County Commission in three
(3) parts. The three parts are:
Part 1 of the Report and BOCC presentation in November 2016 focused on
:
Project Background
Assumptions and Methodology
Results of analysis for design alternatives
Cost Comparisons between alternatives
Part 2 of the Report and BOCC presentation in December 2016 will focus on
:
Brief overview of alternatives and issues presented at November 22 BOCC meeting
Legal background regarding level of service for roads and drainage
Key factors to consider under 4 broad categories
Case studies to address sea level rise in road improvement projects
Developing a uniform countywide policy to address sea level rise in road improvement
projects
Part 3 BOCC Presentation in January 2017 for acceptance of the Final Report
The Final Report for the Pilot Roads project is currently being drafted with input from community
stakeholders and direction from the Board of County Commissioners. Part 1 of the issues and Draft
thth
of the Report was presented to the community on November 9 and 10 as well as to the BOCC on
November 22. The Final Report will be presented to the BOCC on January 18, 2017. During this
December BOCC meeting the BOCC will further discuss key policy issues so that further direction
can be incorporated into the Final Report.
While Part 1 of the report focused on existing conditions of the roads in the two pilot communities,
what might be expected with future sea level rise, what alternatives exist to address those conditions
and the cost of those alternatives, Part 2 of the Report is focused how to develop a uniform
countywide policy on incorporating sea level rise considerations into future road improvement
projects. Legal cases have arisen from expectations related to flooding and levels of service on
providing such levels of service will be addressed. Case studies on how other local governments are
Additionally, the Pilot Projects have provided useful information regarding the considerations for
developing criteria in the design of future road improvement projects that will be helpful in creating
a countywide policy moving forward. All of this information is important to present and discuss
with the BOCC to receive direction in finalizing the Pilot Project Report. Finally, the Pilot Project
has developed conceptual alternatives for each of the two pilot communities and the benefits and
constraints of those alternatives will be part of the dialogue as well as seeking further directionon a
preferred alternative and timeline for implementation.
4EGOIX4K
1
Summary of Part 2 of Report
The analysis for this project is meant to be specific to the two pilot communities in the areas defined
in Big Pine and Key Largo. However, the outcomes of this project must be taken in context within
the broader policy framework for Monroe County.
The BOCC on December 14 will include discussion and presentation will focus on the following
issues:
1.Brief overview of alternatives and issues presented at November 22 BOCC meeting
2.Legal background regarding level of service for roads and drainage
3.Key factors to consider under 3 broad categories:
a.Conditions of roads (current and future)
i.Future Sea level rise projections and impacts
ii.Current Elevation of adjacent properties
iii.Current road conditions and elevations
b.Environmental (Regulatory) considerations
i.Sensitive land
ii.Mitigation for harm
iii.Water quality requirements met for permitting
c.Space and elevation needs of road improvement projects
i.Horizontal- Right of way
ii.Horizontal- Available space for drainage
iii.Vertical- Elevation of water table in relation to road elevation
d.Impact of road improvement projects
i.Access for private property (driveways)
ii.Future maintenance including staff cost
4.Case studies to address sea level rise in road improvement projects
5.Developing a uniform countywide policy to address sea level rise in road improvement projects
6.Further direction on the two Pilot Project Conceptual designs and alternatives developed
PREVIOUS RELEVANT BOCC ACTION:
01/20/16: Approval
integrating design of tidewater, stormwater and road elements in two communities for sea level rise
adaptation and to extend the contract.
11/22/16: Review and discussion of the draft Final Report of the tidal flooding roads demonstration
projects.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION:
Approval
DOCUMENTATION:
4EGOIX4K
1
Pilot Roads Draft Narrative Part 2 120516 Agenda Backup for December 2016 meeting
FINANCIAL IMPACT:
Effective Date: N/A
Expiration Date:
N/A
REVIEWED BY:
Rhonda Haag Completed 11/28/2016 1:49 PM
Pedro Mercado Completed 11/28/2016 3:30 PM
Budget and Finance Completed 11/28/2016 3:39 PM
Maria Slavik Completed 11/29/2016 7:55 AM
Kathy Peters Completed 11/29/2016 9:17 AM
Board of County Commissioners Pending 12/14/2016 9:00 AM
4EGOIX4K
1E
Part 2 of Pilot Report WORKING DRAFT STILL UNDER DEVELOPMENT December 5, 2016
Policy Approach for future Road Design
I.Legal Analysis/Background
As the impacts from sea level rise become more prevalent within Monroe County, a complete
understanding of the Count responsibilities and duties with regard to specific infrastructure will
become critical.
response to sea level rise.
1.Local Governments Responsibility for Providing Services
Generally, local governments do not have a legal duty to provide particular services. Instead,
the powers of a local government are defined by what they are permitted to do, rather than what they
1
are compelled to do.
With regard to services, Florida courts distinguish and
infrastructure. The Florida Supreme Court has held that the decision to upgrade infrastructure is
2
considered a -level function, to which absolute immunity applies. In contrast, this same
Court has held that failing to maintaininfrastructure is exposes the
3
government to potential liability. These decisions solidify the distinction that the government has
immunity for planning decisions (which includes upgrading infrastructure) but not operational decisions
(like maintenance), which require a duty to act with reasonable care to avoid harm to others.
However, the difference between maintenance and upgrading of infrastructure remains grey
under Florida law in the context of a local governments duty to respond to changed circumstances
4
affecting services like increased flooding due to sea level rise. Courts in other states have addressed
this issue and concluded that there is n
5
planning-level decisions rather than an operational function.
2.
1
See Ecological Dev., Inc. v. Walton Cnty. . . . to perform or provide for
any particular construction or maintenance, except as it voluntar, 419 So. 2d 1071, 1077 (Fla.
1982) (-level type. To
hold otherwise would . . . supplant the wisdom of the judicial branch for that of the governmental entities whose job it is to determine, fund,
and supervise necessary road construction and improvements, thereby violating the separation Gargano v. Lee Cnty. Bd.
o
construct roadways, bridges, and other similar services are political questions outside the purview of the cou; Trianon Park Condo. Ass
City of Hialeah
discretionary judgment function with which we have held that the courts cannot
2
, 587 So. 2d 1292, 1296 (Fla. 1991) (holding that the decision of a government to upgrade an intersection was a
planning level decision the government had immunity from).
3
See Neilson, 419 So. 2d at 1073 (affirming the Commercial Carrier holding that the failure to properly maintain existing traffic control devices
and existing roads may also be the basis of suit against a government entity
4
Thomas Ruppert and Carly Grimm, Drowning in Place: Local Government Costs and Liabilities for Flooding Due to Sea-Level Rise, Fla. Bar
Journal. Vol 87, No. 9 (Nov. 2013), available at:
http://www.floridabar.org/divcom/jn/jnjournal01.nsf/8c9f13012b96736985256aa900624829/d1cd8a7e6519800885257c1200482c39!OpenDoc
ument (Florida case law has not directly ruled on the issue of whether changed circumstances that cause increased flooding despite a
stormwater system still in its proper
5
Id. (citing Alden v. Smith Cty., 679 N.E. 2d 36, 38 (Ohio Ct. App. 1996); Colemn v. Portage Cty. , 975 N.E. 2d 952, 960).
1
4EGOIX4K
1E
Part 2 of Pilot Report WORKING DRAFT STILL UNDER DEVELOPMENT December 5, 2016
6
In Florida, local governments have no general duty to provide drainage. All local governments
are permitted by statute to engage in the construction and management of drainage systems, but these
7
are discretionary duties on the part of the local government. However, once a local government does
provide protection from flood damage through the construction of a storm sewer pump or similar
8
system, it assumes the duty to do so with reasonable care. Stated another way, when a local
9
the system so that it [will] properly drain off expected
3.Local Governments Responsibility to Provide Drainage for Roads
10
Local governments do have a duty to reasonably maintain existing roads and traffic controls.
However, this duty applies only
11
The duty to
reasonably maintain roadways does not obligate the local government to upgrade a road through
12
measures like road widening or changing the means of traffic control. These measures have been
13
deemed discretionary functions and cannot be compelled by the courts..
Whether a local government has a duty to upgrade existing drainage systems to effectively drain
greater volumes of stormwater or address flooding from sea level rise or extreme ride events will
depend upon whether courts classify this action as a discretionary, planning-level or a nondiscretionary,
14
operational- and maintenance-level functionSince the failure of drainage systems to function as
.
effectively due to sea level rise represents a changed situation that would require a redesign of the
system to provide the same level of service previously provided, it would seem more logical to classify
15
If that is the case, a local government decision not to
upgrade such a system would be covered by sovereign immunity, insulating the local government from
16
flooding damage claims by those impacted if a drainage system is not upgraded.
4.Services Reduced or Compromised
There may also be instances where the County needs to reduce transportation infrastructure
services in response to flooding or sea level rise. Florida law provides specific procedures and
6
Supra, note 4.
7
Id.; See, e.g.,
the construction, reconstruction, repair, renovation, excavation, grading, stabilization, and
upgrading of greenbelts, swales, culverts, sanitary sewers, storm sewers, outfalls, canals, primary, secondary, and tertiary drains, water bodies,
marshlands, and natural areas, all or part of a comprehensive stormwater management system, including the necessary appurtenances and
structures thereto and including, but not liity for
certain mechanisms to fund stormwater management).
8
Id. (citing Slemp v. City of North Miami, 545 So. 2d 256, 258 (Fla. 1989)).
9
Id.; See also Southwest Fla. Water Mgmt. Dist. v. Nanz
and undertaken to operate and maintain said drainage system, [d]efendants, and each of them, had a duty and obligation to prudently operate,
control, maintain, and manage said system so that it would work properly and drain off excess waters so as not to cause flooding in the area.
Defendants owed said duties and obligations to your [p]laintiffs, residents and/or owners of homes and real property serviced by the drainage
, 468 So. 2d 912 (Fla. 1985); Collazos v. City of West Miami, 683 So. 2d 1161 (Fla. 3d
DCA 1996).
10
Id. (citing Neilson, 419 So. 2d at 1078).
11
Id.
12
Id. (citing Konney, 587 So. 2d at 1294).
13
Id.
14
Id.
15
Id.
16
Id.
2
4EGOIX4K
1E
Part 2 of Pilot Report WORKING DRAFT STILL UNDER DEVELOPMENT December 5, 2016
17
requirements for counties to use in closing or abandoning roads. Additionally, the recent Jordan v. St.
18
Johns County decision involved the effects
road. decided not to maintain Old A1A because of the frequency of
washout and the economic burden on the county for a limited number of residents using the road. The
opinion specifically noted that the procedural failure to formally abandon the road in
accordance with the statutes liability claims. Should Monroe County
decide to stop maintaining perpetually flooded roadways in the future a key component is that the
statutory abandonment process should be utilized.
5.Sea Level Rise Policy in Comprehensive Plans
19
In 2015 Florida These new
provisions now require that coastal management elements of Comprehensive Plans include a
20
While the redevelopment
concept in the coastal element itself is not new, what is required to be addressed in the element has
been enhanced. The new full requirements include:
1. Development and redevelopment principles, strategies, and engineering solutions that reduce
the flood risk in coastal areas which results from high-tide events, storm surge, flash floods,
stormwater runoff, and the related impacts of sea-level rise.
2. Encouraging the use of best practices development and redevelopment principles, strategies,
and engineering solutions that will result in the removal of coastal real property from flood zone
designations established by the Federal Emergency Management Agency.
3. Identifying site development techniques and best practices that may reduce losses due to
flooding and claims made under flood insurance policies issued in this state.
4. Being consistent with, or more stringent than, the flood-resistant construction requirements in
the Florida Building Code and applicable flood plain management regulations set forth in 44
C.F.R. part 60.
5. Requiring that any construction activities seaward of the coastal construction control lines
established pursuant to Section 161.053, F.S. be consistent with Chapter 161, F.S.
6. Encourage local governments to participate in the National Flood Insurance Program
Community Rating System administered by the Federal Emergency Management Agency to
achieve flood insurance premium discounts for their residents.
Local governments appear to have broad discretion as to how they comply with this new mandate. And
corollary to that, the law does not specify a date by which local governments must comply. That said,
Section 163.3191(1), F.S. still requires local governments to evaluate their plans at least once every 7
years to determine if amendments are necessary to reflect relevant changes in state law and a local
government also has the authority pursuant to Section 163.3191(2), F.S. to make a determination that
amendments are necessary sooner than that 7-year requirement. With that, Monroe County will have
some level of discretion in terms of compliance with these new requirements, but the concepts
contained within this Report related to infrastructure planning and design for roads are conceivably a
17
See Fla. Stat. §§ 316.006, 336.09, 336.10, 336.12, 336.125 (2016).
18th
Jordan v. St. Johns Cnty., 63 So. 3d 835 (Fla. 5 DCA 2011).
19
Laws of Florida, 2015-69.
20
Laws of Florida, 2015-69, section 1, codified at Section 163.3178(2)(f), F.S. (2016).
3
4EGOIX4K
1E
Part 2 of Pilot Report WORKING DRAFT STILL UNDER DEVELOPMENT December 5, 2016
compliance strategy. Additionally, all the work the County is doing related to achieving a good score in
the Community Rating System will also lend itself to compliance with these new requirements.
6.Local Government with Regard to Service Delivery
The two most prominent liabilities facing the County with regard to service delivery are those of
sovereign immunity and potential takings claims.
a.Sovereign Immunity
21
Florida waived sovereign immunity in tort actions in 1973 with its Torts Claims Act, opening
22
the door for private citizens to sue local governments over flooding damage. However, tort claims
involving government infrastructure may still be subject to sovereign immunity despite the statutory
23
waiver. The Florida Supreme Court has held that despite the Act,
24
to scrutiny by judge or jury as to the wisdom of their performance. These planning level decisions are
contrasted from those operational functions as discussed above.
b.Takings Claims
There is also potential liability for local governments related service delivery through private
takings claims. There are two (2) types of takings: 1) per se and 2) as applied takings. Per se takings
25
amount to a taking of all viable economic use of the property. As applied takings claims require a case-
26
by-case factual analysis of the degree of interference with property use.
To support a claim for inverse condemnation, flooding must be caused by government action
27
Tent of a taking is satisfied,
according to Florida courts, where periodic flooding occurs or is expected to recur, that deprives the
28
property owner of all reasonable use of their land. Recently, the U.S. Supreme Court held that
periodic flooding, even if only temporary, may result in a compensable takings claim for damage to
property [emphasis on the causation by governmental
29
action].This suggests that government action causing even periodic flooding on a temporary basis
may be a taking, depending on the specific facts at issue. But note the distinction is based on the actual
governmental action causing the flooding for instance where the government constructs a building that
21
Fla. Stat. §768.28 (2016).
22
Supra, note 4.
23
Id.
24
Id. (citing Commercial Carrier Cor. v. Indian River Cnty., 371 So. 2d 1010, 1022 (Fla. 1979) and Konney, 587 So. 2d at 1294).
25
Lucas. V. South Carolina Coastal Council, 505 U.S. 1003 (1992).
26th
Lost Tree Village v. City of Vero Beach, 838 So. 2d 561, 570 (Fla. 4 DCA 2002).
27
Supra, note 4 (citing S. Florida Water Mgmt. Dist. v. Basore of Florida, Inc., 723 So. 2d 287, 288 (Fla. 4th DCA 1998)).
28
Id. (citing Elliott v. Hernando County
infringed to demonstrate a taking under the Florida
t rain is a
condition that is reasonably expected to continually reoccur in the future)).
29
Id. (citing , 133 S. Ct. 511 (2012)).
4
4EGOIX4K
1E
Part 2 of Pilot Report WORKING DRAFT STILL UNDER DEVELOPMENT December 5, 2016
causes flooding to an adjacent property owner. The inaction of government has not historically been
30
sufficient to support a claim for inverse condemnation, but this is an important concept to consider.
31
The Jordan case calls that general principle of inaction into question unfortunately.
Landowners sued St. Johns County alleging that the county failed to reasonably maintain a county-
owned r
their land, resulting in a taking of property. As briefly noted above, there was a dispute among several
private property owners challenging St. Johns County over their legal responsibility to maintain old A1A,
a coastal road inundated by storms and hurricanes. In 1979, the State deeded Old A1A to the County.
By 2005, the County enacted a temporary residential building moratorium for properties along the
roadway segment at issue (approximately 60 in total).
32
claiming generally that the County had deprived these landowners of access to their land. A total of five
(5) claims were raised against the County, including: 1) that the County had a duty to provide emergency
services; 2) that the County had a duty to restore and perpetually maintain old A1A to ensure the
property oaccess; 3) an injunction was needed requiring the County to perpetually maintain old
A1A to ensure access; 4) inverse condemnation due to the deteriorated road/lack of access; and 5)
inverse condemnation due to the temporary building moratorium.
As a low-lying coastal road, old A1A is subjected to continuous damage from natural forces,
33
including storms and erosion and although not mentioned, even sea level rise. The County argued that
was to expend more than $13
million to elevate the height of the road by placing large amounts of sand along its entire length from
34
the right-of-way down to the mean high-water mark. The County further argued that it would have to
spend an additional $5-8 million every 3-5 years to maintain that protection. According to the County,
it could not spend these sums because they represented more than the entire county budget for repair
and maintenance of the Cs 800 miles of roads.
At the lower level, t
35
counts. On appeal though, the Fifth District Court of Appeal opined that the County had a duty to
36
The case
was remanded to determine whether the County had fulfilled its duty. More significantly, however, the
court held that governmental inaction in the face of an affirmative duty to act can support a claim
37
For the first time in Florida, this case established a precedent that
government inaction may be grounds for a plaintiff to bring a constitutional takings claim if the
30
Id. (citing Griffin Broadband Communs., Inc. v. United States, 79 Fed. Cl. 320, 324 (20ngs claim is that
. See also Robert Meltz, Substantive Takings
Law: A Primer, a paper presented at The 12th Annual CLE Conference on Litigating Regulatory Takings and Other Legal Challenges to Land Use
and Environmental Regulations at 14-15 (Nov. 2009), available at http://www.vjel.org/docs/Takings%20Conference/Meltz_Vermont_conf%20--
%20takings_primer.pdf.
31
Jordan, 63 So. 3d at 839.
32
Id.
33
Supra, note 4.
34
Id.
35
Jordan, 63 So. 3d at 837.
36
Id. at 839.
37
Id.
5
4EGOIX4K
1E
Part 2 of Pilot Report WORKING DRAFT STILL UNDER DEVELOPMENT December 5, 2016
38
government had a duty to act. In December 2011, the Florida Supreme Court declined review in this
case.
The case ultimately settled whereby the County and property owners came to agreement on
levels of service for the road in the future, recognizing the environmental challenges impacting the
quality of the road in the future. As part of the settlement, the following were agreed to:
County agreed to ugood fefforts to maintain ocondition;
County agreed to utimely and good faith ekeep access open;
County agreed to include the existing paved portion of old A1A in the pavement management
schedule and repave it as needed;
County agreed to resurface a 0.3-mile portion of old A1A to create a connection with New A1A;
The County agreed to remove diminished road access as an impediment to obtaining building
permits;
Property owners agreed to give the County notice and an opportunity to buy properties along
this roadway before selling to others;
The County agreed to repeal the requirement that prospective ho
Property owners agreed to grant easements to restore access to parcels outside of the existing
paved area;
Agreed to allow transit over County-owned parcels to facilitate access to parcels outside of the
existing paved area;
Agreed to consider recommendations of the Summer Haven Municipal Services Taxing Unit
regarding the use of MSTU funds; and
39
County agreed to pay $75,000 to partially reimburse Plaintiff-costs.
II.Case Studies
As sea level rises and flooding increases in Florida, local governments are beginning to make
policy decisions in response. Two case studies, St. Johns County and Miami Beach, are particularly useful
in illustrating how Florida governments are responding through the use of pilot projects preliminary
design criteria. Additionally, the South Florida Water Management District is starting to also address
these issues.
a.St. Johns County- Natural Forces Ordinance
40
As a result of the Jordan case discussed above, St. Johns County adopted an ordinance in 2012
to specifically address natural forces degradation and damage to public roads and streets and other
improved public rights-of-way used for travel and recreation. In essence, the ordinance creates a
where necessary to allow the county to deviate from the minimum standards
book. The ordinance establishes design
criteria and standards for existing roads in environmentally-challenging locations
and defines meaningful access for the users of such roads. Environmentally-challenging locations are
defined,
38
Supra, note 4.
39
Exhibit A: Settlement Agreement and Release, Case. No. 05-CA-0694.
40
See Ordinance 2012-35 effective December 11, 2012.
6
4EGOIX4K
1E
Part 2 of Pilot Report WORKING DRAFT STILL UNDER DEVELOPMENT December 5, 2016
41
infeasible due to the Meaningful access is
defined
road owned and maintained by the County for access to private property. For property along formerly
opened State or County roads, or portions thereof, meaningful access shall include access to such
42
The following design criteria were adopted by St. Johns County in this ordinance:
(a)Design criteria listed serve as an approved Design Exception to the uniform minimum
standards for the design, construction, maintenance and operation of public roads pursuant
to Chapter 14 of the Florida Greenbook;
(b)Due to forces of nature and environmental conditions, access to property accessed by roads
in environmentally-challenging location may be limited. The Commission may then
designate such road as being located in an environmentally-challenging location.
(c)For those designated as located in environmentally-challenging locations, the minimum
(d)Roads in environmentally-challenging locations may experience conditions that necessitate
iteria be altered to the point that the following may be present in
providing meaningful access:
1.Unpaved surfaces and sub-surfaces composed muck, sand, clay or organic material.
2.Sub-standard lane widths, single lanes and varying maintained width.
3.Vehicle type, size, and weight limitations.
4.Periods of time when the roads may be submerged, buried by soil, covered by sand
or blocked by vegetative debris.
5.No assurance that emergency vehicles can use or routinely use the road for access.
6.Paved surfaces with intermittent pavement, potholes, cracks, loose material.
7.Other conditions that cause the roads to be in substandard condition.
(e)Property owners with existing improvements that are accessed by roads that are located in
environmentally-challenging locations may encounter access issues.
(f)Access to private property served by existing County-owned or maintained roads in these
locations may be limited by naturally occurring conditions beyond the reasonable control of
the County. Resulting circumstances may include:
1.Roadway conditions require the use of a four-wheel drive vehicle for passage.
2.Periods of time before roadway repair will be accomplished when vehicular access is
not possible or is more limited than usual.
3.Extended periods when access and the roadway are impassable to vehicles.
4.Instances when roadway repair cannot be accomplished without permits issued by
state or federal agencies for necessary impacts to a protected resource.
(g)Any owner in a designated area who rents property for more than fourteen (14) days in a
single calendar year is deemed to have meaningful access regardless of roadway condition.
(h)Except by the Commission, the County has no affirmative duty to construct or permit
construction of new or extended roads in these designated areas.
(i)County has no obligation to improve any portion of a County-owned and maintained road in
a designated area adjacent to private property who purchases property after the ordinance
existed or after the County designated the location.
41
Id.
42
Id.
7
4EGOIX4K
1E
Part 2 of Pilot Report WORKING DRAFT STILL UNDER DEVELOPMENT December 5, 2016
(j)Nothing in the ordinance prohibits private property owners from petitioning the
Commissioners for a vacation of the road or for the establishment of a Municipal Services
43
Benefit Unit or Municipal Services Taxing Unit.
b.City of Miami Beach- Land Development Regulations
The City of Miami Beach has experienced significant tidal flooding in recent years. The City is
currently moving toward the development of design criteria to incorporate into its land development
44
regulations, of citywide road design but has not yet done so. Although it is not yet incorporating sea
level rise considerations
45
rise, makes recommendations for 20-year capital improvements, provides flexibility for various rates of
sea level rise, and provides drainage analyses using technical modeling. In its 20-year capital
improvement program, the SWMMP accounts for sea level change over a 20-year planning horizon for
46
stormwater infrastructure and 50-year horizon for seawall heights.
In addition to sea level rise generally, the City is also responding to impacts from exceptionally
47
high tides, or King tides. These King tides cause the Cravity flow stormwater drainage
48
infrastructure to become ineffective and road flooding. The City has addressed the problem in the
short-term by installing check valves, which only allow outflow, at points where stormwater pipes
discharge into the Biscayne Bay, and pumps to give the stormwater sufficient pressure to overcome the
49
increased inflow pressure associated with the high tides. For the longer term solution, the City has also
raised the stormwater infrastructure design sea level considerations by two feet in the new SWMMP, to
50
both account for the King tides and begin to address future sea level rise.
To address impacts to its 60 miles of seawall, the City is currently considering incorporating new
seawall design specifications into its Code so that the financial impact of improving the seawalls could
51
be borne overtime, rather than when the infrastructure becomes inadequate due to rising water.
52
Specifically, the City is considering raising the seawall height standard by 2 feet, from 3.2 to 5.2.
The City is also implementing requirements on buildings to prepare for rising water. Because
sea level rise will eventually require the City to raise its streets and sidewalks, and because all structures
within the City are within a floodplain, the City is currently requiring new buildings to include false
53
fronts.
54
with disabilities, and already capable to accommodating a higher street level.
43
Id.
44
Per conversation with Bruce Mowry, City Engineer, City of Miami Beach on or around November 18, 2016.
45
Lenhers, M. et al., Planning for Sea-Level Rise: A Guide for Managers, Owners and Regulators of Water-Dependent Infrastructure, available at:
https://www.law.ufl.edu/_pdf/academics/centers-clinics/clinics/conservation/resources/final-deliverable-2b2-guidance-document-on-slr-and-
water-dependent-infrastructure.pdf (last accessed Nov. 28, 2016).
46
Id.
47
Id.
48
Id.
49
Id.
50
Id.
51
Id.
52
Id.
53
Id.
54
Id.
8
4EGOIX4K
1E
Part 2 of Pilot Report WORKING DRAFT STILL UNDER DEVELOPMENT December 5, 2016
Much of tthrough road design (or elevated re-design)
55
has been the result of two (2) pilot projects: 1) Sunset Harbour Neighborhood Improvement Project
56
and 2) West Avenue Neighborhood Improvement Project. Sunset Harbour is an improvement project
that includes both infrastructure improvements and above-ground improvements. Water mains and
service, water meters, fire hydrants, sanitary sewer lines and manholes, and the existing stormwater
drainage system are all included in the preliminary infrastructure improvements. Raising and
reconstructing roadways and leveling private property driveways are the sea level rise related above-
ground improvements to be implemented through this project. The West Avenue pilot project includes
the installation of a new stormwater drainage system with pump stations and raising the elevation of
the roadway to minimize street flooding, along with matching the new roadway elevation to existing
driveways. These improvements were projected to be completed by Fall 2016.
57
Through these two pilot projects, the City has implemented through resolution and its
SWMMP two specific design criteria addressing sea level rise. First, the City has adopted
NAVD (based on drainage). The City also recently passed Ordinance 2016-4010 defining crown of the
58
road, future crown of the road, and establishing minimum and maximum yard elevation requirements.
In addition, the City has also changed its regulations related to base flood elevation for
residential property, with regulations for commercial properties likely forthcoming. According to the
more easily accommodate building modification in response to sea level rise. Though the City of Miami
Beach has not yet adopted a comprehensive set of citywide criteria (for road design or sea level rise
generally), they continue to make policy and regulatory decisions in direct response to sea level rise.
c.South Florida Water Management District Flood Control Structures
The South Florida Water Management District ) has developed a Flood
Protection Level of Service program designed to identify and prioritize long-term SFWMD
infrastructure needs. Level of Service projects provide a process to establish flood protection thresholds
for each basin within the SFWMD and while specific to flood control structures, the idea of establishing
such levels of service is pertinent. The flood protection thresholds established are then used to initiate
retrofits or other adaptation efforts in the capital planning process. Of note, the thresholds are basin
specific based on site-specific assessments, and are not uniform everywhere. Adaptation efforts are
coordinated with annual structure maintenance program.
As part of this program, the District uses its Conceptual Adaptive Resilience Model to establish
the sea level at which existing infrastructure no longer provides flood protection. Based on the amount
of time required to rebuild, conditions are established to trigger replacement of particular
infrastructure. The SFWMD then monitors conditions and initiates an adaptive strategy once a given
condition is realized.
55
See Sunset Harbour Neighborhood Improvements website, available at: http://www.mbplannedprogress.com/projects/neighborhood-
improvements/middle-beach/sunset-harbour-neighborhood-improvements.
56
See West Avenue Neighborhood Improvement Project website, available at: http://www.mbplannedprogress.com/projects/neighborhood-
improvements/south-beach/west-avenue-neighborhood-improvement-project.
57
See Resolution 2016-29366 adopted April 13, 2016 and Resolution 2014-28499 adopted February 12, 2014.
58
See Ordinance 2016-4010 effective June 8, 2016.
9
4EGOIX4K
1E
Part 2 of Pilot Report WORKING DRAFT STILL UNDER DEVELOPMENT December 5, 2016
The SFWMD is currently implementing the Flood Protection Level of Service program through
several projects, including:
C-4 Basin LOS project to determine the existing and future (using three (3) sea level rise
scenarios) flood protection level of service for this basin to prioritize flood protection issues and
initiate basin-specific solutions. The project was slated to be completed by the end of FY 2015-
16;
C-7, C-8 and C-9 LOS projects to determine the existing and future (using three (3) sea level
rise scenarios) flood protection level of service for this basin to develop flood protection
strategies with Miami-Dade County and incorporate into the Local Mitigation Strategy. The
project is slated to be completed during the FY 2016-17 cycle; and
Big Cypress Basin LOS project - to determine the existing and future (using three (3) sea level
rise scenarios) flood protection level of service for this basin, including an assessment of future
land use. The project is slated to be completed during the FY 2016-17 cycle.
III.Recommendation on Policy
59
The County currently addresses road design criteria in two key sections as well as capacity-
60
based levels of service. For the purposes of this discussion, the design criteria (as opposed to capacity)
are most relevant.
19-42 (Construction standards and
specifications) of the Code are that:
All construction, repairs and/or restorations within county public rights-of-way and easements
shall conform to the technical standards and specifications as contained in the Florida
Greenbook and the 1995 edition of the Monroe County Public Works Manual, which manual is
hereby adopted pursuant hereto and, by reference, incorporated herein.
Revisions to the 1995 Monroe County Public Works Manual may be adopted by the board of
county commissioners by resolution.
Finally, Section 114-7 (Streets) includes the following design criteria:
(a)The arrangement, character, extent, width, grade and location of all streets shall conform to all
the county plans and shall be considered in relation to existing and planned streets,
topographical conditions, public convenience and safety, and in their appropriate relation to the
proposed uses of the land to be served by such streets.
(b)Right-of-way shall be provided and dedicated to the public in accordance with the following:
(1)State roads: as determined by the Florida Department of Transportation;
(2)Secondary roads and streets: 50 feet, with 25 feet on either side of centerline.
(c)Roads and streets shall be located to provide access to all adjoining land at intervals of not more
than one-quarter mile (1,320 feet) unless blocked by a natural obstacle. Access to all adjoining
property must be provided by the developer at his expense if any of the developer's actions
block natural or existing access.
(d)Names of subdivisions, roads and streets previously used for subdivisions in the county shall not
be given to new subdivisions unless their post office addresses are different towns or cities.
Roads and streets that form extensions, or are located along the general projections of existing
roads and streets, shall be named after the existing roads and streets.
59
Section 19-42 and Section 114-7, Monroe County Code of Ordinances.
60
Section 114-2, Monroe County Code of Ordinances.
10
4EGOIX4K
1E
Part 2 of Pilot Report WORKING DRAFT STILL UNDER DEVELOPMENT December 5, 2016
(e)Street markers and traffic-control signs shall be installed at the expense of the developer in
accordance with the county's typical standard construction details.
(f)The arrangement of streets in a subdivision shall either:
(1)Provide for the continuance or appropriate projection of existing principal streets in
surrounding areas; or
(2)Conform to a plan for the neighborhood to meet a particular situation where
topographical or other conditions make continuance or conformance to existing streets
impracticable.
(g)Minor streets shall be laid out to discourage their use by through traffic.
(h)Where a subdivision abuts or contains existing or proposed arterial streets, the county engineer
may require marginal-access streets, reverse frontage with screen planting contained in a
nonaccess reservation along the rear property line, deep lots with rear service alleys, or such
other treatment as may be necessary for adequate protection of residential properties and to
afford separation of through and local traffic.
(i)Reserve strips controlling access to streets shall be prohibited except where their control is
placed under the county, with conditions approved by the county engineer.
(j)Streets with centerline offsets of less than 125 feet at points of intersection with other streets
shall be avoided where possible.
(k)A tangent of at least 100 feet shall be introduced between reverse curves on arterial and
collector streets if required by the county engineering department.
(l)When connecting street lines deflect from each other at any one point by more than ten
degrees, they shall be connected by a curve with a radius adequate to ensure a sight distance of
not less than 300 feet for minor and collector streets, and of such greater radii as the
department of planning shall determine for special cases.
(m)Streets shall be laid out so as to intersect as nearly as possible at right angles, and no street shall
intersect any other street at less than 80 degrees.
(n)Property lines at street intersections shall be rounded with a minimum radius of 25 feet, or a
greater radius where the county engineer may deem it necessary. The county engineer may
permit comparable cutoffs or chords in place of rounded corners.
(o)Half-streets shall be prohibited, except where essential to the reasonable development of the
subdivision in conformity with the other requirements of this article, and where the county
engineer finds it will be practicable to require the dedication of the other half when the
adjoining property is subdivided. Wherever a half-street is adjacent to a tract to be subdivided,
the other half of the street shall be platted within such tract.
(p)Dead-end streets, designed to be so permanently, shall be provided at the closed end with a
turnaround having an outside roadway diameter of at least 70 feet, and a street property line
diameter of at least 100 feet, or may be provided with a "T" type turnaround as may be
approved per "Standard Specifications and Details of Monroe County" by the department of
planning.
(q)Street grades, including bridge approaches, shall not exceed six percent and shall include
properly designed vertical curves.
(r)Paved roads and streets shall be paved at least 20 feet wide on a minimum base width of 22 feet
and a minimum subgrade width of 24 feet, all as required in the county's typical standard
construction details.
(s)Stabilized shoulders seven feet wide shall be provided for public parking and safety alongside
roads and streets.
(t)The minimum crown elevation of all roads and streets in the county shall be plus 4.0 msl.
11
4EGOIX4K
1E
Part 2 of Pilot Report WORKING DRAFT STILL UNDER DEVELOPMENT December 5, 2016
Recently, the County has begun factoring sea level rise considerations into decisions related to
road improvement projects. The factors already being considered on a project by project basis include
tide levels at the location of the project, tide elevation seen on average or during the Fall 2015 King tide
event and the projected sea level rise for the life of the road project.
While these considerations are already being factored into road project design by County staff, a
more comprehensive policy that takes into account site-specific conditions and can be applied
countywide is warranted. From a policy perspective, while the Board of County Commissioners may
decide upon a particular of level of projected sea level rise to drive design decisions, other
considerations and constraints may prevent that goal from being achieved.
This Pilot Project is also providing a mechanism to tie these numerous concepts together and
develop recommendations for a countywide approach to addressing future flooding into road design
criteria. State Comprehensive Plan requirements are moving in that direction, but from the County
perspective, tying useful life of infrastructure projects to sea level rise factors is something already
established as a policy. Monroe County Comprehensive Plan Policy 1502.1.5 states that:
Within five (5) years after the adoption of the 2030 Comprehensive Plan, Monroe
County shall initiate an inventory of existing and planned infrastructure up to the 2030
horizon, based upon the vulnerability mapping identified in Policy 1502.1.4 for capacity
to accommodate projected sea-level rise of the life expectancy of that infrastructure.
Monroe County shall identify the infrastructure within those areas, its useful life and
any retrofits or capital projects necessary to address the impacts of sea level rise. These
strategies may include defense, accommodation, or and retreat projects, or not building
planned infrastructure in vulnerable locations, to address the impacts of sea level rise.
Monroe County will consider developing design criteria, in conjunction with a broader
asset management process.
Based on the case studies discussed in this Report, the Team has development a policy approach that
incorporates three (3) key elements of design related to roads in the face of changing environmental
conditions. The Elements include:
1.Design Criteria development
2.Environmentally Challenging Locations (or Local Conditions)
3.Meaningful Access
We discuss the framework for each of those elements below.
A.Design Criteria development
The road design requirements currently set forth in sections 19-42 and 114-7
Code are not sufficient to address the impacts of sea level rise on roadways as required by Monroe
County Comprehensive Plan Policy 1502.1.5. These existing criteria are not tied to the Southeast Florida
Regional or other sea level rise projections, nor do they
consider sea level rise impacts over the useful life of the designed roadways.
It is recommended that Monroe County use an approach similar to that used in St. Johns
County in its 2012 Ordinance regarding treatment of the Greenbook recognizing that it shall be applied
12
4EGOIX4K
1E
Part 2 of Pilot Report WORKING DRAFT STILL UNDER DEVELOPMENT December 5, 2016
to the extent that economic and environmental considerations in existing development will allow. That
approach was that design criteria were adopted by ordinance and compliance with such County
regulation is an approved Design Exception to the Greenbook as permitted in the Greenbook itself. In
particular, the Design Exception could incorporate consideration of the low or Median projection of sea
level rise, at a minimum, for the useful life of that particular road improvement project.
B. Environmentally Challenging Locations (or Local Conditions)
Similar to how St. Johns County addressed their roadway erosion issue, Monroe County can
create a Design Exception that establishes design criteria and standards for existing roads in areas
especially challenged by sea level rise. Designing to a particular sea level rise target may not be
achievable because of local conditions that vary location to location and this should be considered in
developing design criteria. These conditions have been crystallized through this pilot project and
considering best practices from other local governments dealing with similar sea level rise impacts, to
include:
Existing and Future Conditions:
Future sea level rise;
R
Current elevation of adjacent properties;
R
Current road conditions and elevations;
R
Accurate elevation date; and
R
The elevation of private parcels along the roadway.
R
Environmental Considerations:
Sensitive land;
R
Mitigation for harm requirements; and
R
Whether water quality requirements are being met for permitting.
R
Space Considerations:
Horizontal - right of way availability;
R
Horizontal available space for drainage; and
R
Vertical elevation of the water table in relation to the road elevation.
R
Impact Evaluation:
Access for private property (driveways); and
R
Future maintenance including staff costs.
R
In weighing the above factors, County staff will have to balance these challenges and conditions to
61
create target best suited for a particular roadway. This will include the roadway elevation most
appropriate in light of the above local issues faced in that area. This approach can then be presented to
the County Commission for their consideration given the best balance of the above design factors.
C.Special Designation for Environmentally Challenging Locations and Providing Meaningful
Access
The final element of the policy approach is to provide for meaningful access to address the
appeal of the Jordan case in the Fifth District Court of Appeal. As discussed earlier in this Report, that
court opined that the C
61
This concept borrows from Section 373.14, F.S. utilizing a similar balancing test to determine whether an activity over surface water or
wetlands is contrary to or in the public interest by evaluating seven (7) express criteria.
13
4EGOIX4K
1E
Part 2 of Pilot Report WORKING DRAFT STILL UNDER DEVELOPMENT December 5, 2016
Any policy approach should incorporate this Element to avoid the issues
raised in that case regarding access along the roadway. By defining meaningful access in light of the
natural forces degradation of roadway infrastructure and creating this designation process, the County
is formalizing and adopting new design criteria for these designated areas. Once designated, specific
design criteria become applicable, as well as specific conditions which may be present as a result of
environmental conditions due to the reduced levels of service in these areas.
A sample process evaluation is depicted as follows:
IV.Conclusions
Based on the foregoing, several key conclusions can be reached from this analysis that support
the adoption of a policy approach such as that outlined here in the form of an Ordinance. A draft
ordinance is being prepared for presentation and discussion by the Board of County Commissioners at a
later date but the following conclusions are relevant:
1.The law is moving in the direction of requiring local governments to harmonize future flood
risk and the useful life of infrastructure projects. The County has already adopted local
policy requiring this linkage.
2.While there is no legal duty to provide a specific level of service for flood risk on roads,
reasonable maintenance resulting in legal access has been one courts interpretation of
those duties with regarding to local government action.
14
4EGOIX4K
1E
Part 2 of Pilot Report WORKING DRAFT STILL UNDER DEVELOPMENT December 5, 2016
3.Developing a countywide approach for addressing these issues is preferable to case by case
determinations because it provides more long term certainty for the County for capital
planning and residents in terms of expectations for levels of service.
4.The lessons learned from this pilot project have served an important purpose related to
understanding the case by case differences in attempting to develop road design criteria
that address future flood risk. That said, any discussion related to road design criteria
countywide will be aided by a) better elevation data and b) a more specific vulnerability
analysis to determine the timing and magnitude of future risk related to sea level rise.
5.While there is no one single case study of a local government that has addressed all of issues
in one policy approach, case studies have addressed: a) road design criteria that
incorporate sea level rise b) developing policy in the face of environmentally challenging
road conditions and 3) case by case localized (or basin) criteria recognizing that levels of
service fluctuate but can still address common conditions.
15
4EGOIX4K