Item L07
Rev 2/95
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 02/16/00
Division: DISTRICT I
Bulk Item: Yes
No
x
Department: MAYOR HARVEY
AGENDA ITEM WORDING: Discussion of Communications
Cudjoe Key. Staff needs direction from Board
Commissioners on how to proceed with the application.
Facili ty on
of County
ITEM BACKGROUND: The project is now in limbo. This is unfair to
the applicant who is looking for a resolution to the application.
I believe the project has a public benefit in that it will provide
residents with free television, and beam the signals of radio
stations including U. S. 1 Radio. It will provide boaters the
safety of being able to contact home or emergency assistance from
over 50 miles out to sea. It will also provide a reliable source
of uninterrupted emergency information during a hurricane. In any
event, we need to direct staff to meet with the applicants to
resolve the impasse, and to meet with the public to make them aware
of the benefits.
PREVIOUS RELEVANT BOCC ACTION:
STAFF RECOMMENDATION:
TOTAL COST:
BUDGETED: Yes
No
COST TO COUNTY:
REVENUE PRODUCING: YES
NO
AMT. PER MONTH
YR
APPROVED BY:
County Atty
OMB/Purchasing
Risk Mgmt.
DIVISION DIRECTOR:
Lt) ~ .fl /Y').'&t/y~ I r:-b' - ~(4-
Commissioner Wilnelmina G. Harveyo~
DOCUMENTATION: Incld:
To Follow:
DISPOSITION:
Agenda
Not ReqUir~
Item #:J--t; .
A History of Detrimental Reliance and Other Issues
Relating to the Cudjoe Key Tower Construction
The following is a description of the history of the Cudjoe Key Quarry site, with
particular focus on zoning, The present owner, Frank Dirico, President of Industrial
Communications and Electronic, Inc., (IC&E) has relied on this information as the foundation
for substantial investments in the property.
The property has been an active rock quarry (heavy industrial use) since the 1970s, when
it was owned and operated by CTB, Inc. The environmental permits at that time provided for
quarry operations to extend to the property line in all directions, and a berm was constructed
around the entire parcel to prevent the industrial runoff from affecting surrounding wetlands (see
Figure 1 to the attached Department of the Army (ACOE) permit - Exhibit "A"). Most of the
parcel ofland would have been classified as "wetlands" under today's definitions/standards. In
1984, Tarmac Florida, Inc. (Tarmac) executed a mining agreement with CTB, Inc. to take over
operations of the rock quarry. Tarmac applied for new environmental permits and they were
issued in 1988. The new permits required removal of the outer berm along the northern property
line and along the southeastern comer of the property in order to restore some of the wetlands as
mitigation for the continued mining activities. This 1988 permit reduced the actual mining area
in size (see Figure 2 of Exhibit "A"). The berm removal took place before 1990. Rock mining
continued to be authorized on over 43+ acres of the 60+-acre parcel.
In 1990, Monroe County issued extensions and renewals of the mining and excavation
permits and blaster and user permits. The Florida Department of Community Affairs (DCA)
appealed the Monroe County permits, claiming that the permits were not "consistent" with the
County's land development regulations and that no "vested rights" for rock mining existed.
DCA, the County and Tarmac settled the DCA administrative appeal in 1991 (see March 1991
Agreement attached as Exhibit "B"). This March 1991, Agreement states, on page 6, that
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t,,1
Tarmac and CTB could apply to Monroe County to change the zoning for the entire area of the
parcel (over 43 acres) permitted for rock mining by the Florida Department of Environmental
Regulation (DER, now DEP) permits. This provision was added because the zoning on the
property, prior to 1986, had been primarily "general use" (GU). One of the uses "as of right"
under the U zoning was. , . "television and radio transmission towers." When Monroe County
passed its 1986 Comprehensive Plan, the zoning on the "borrow pit/lake" was changed to
"Industrial" (I) and the zoning on the large local, state and federally permitted borrow pit/rock
mining area (heavy industrial use) was changed to "Native" (N).
Cudjoe Enterprises, Inc., purchased the property with its existing permits in 1994 and
filed a "vested rights" application with Monroe County on January 2, 1997, The Monroe County
Hearing Officer issued a vested rights determination in favor of Cudjoe Enterprises on August 7,
1997 (copy attached as Exhibit "C"). Cudjoe Enterprises had not applied for annual extensions
of the Tarmac/CTB mining and excavation permits because the Cudjoe Enterprises officers were
under the "impression" that the 1991 Settlement Agreement with DCA somehow "superceded"
the annual local permitting process. After finding that their "understanding" was in error,
Cudjoe Enterprises filed "after the fact" applications for renewal of their Monroe County permits
on July 28, 1997 (copy attached as Exhibit "D"). Attachment 3 to the "after the fact" permit
application is a copy of the zoning map for the subject property, which shows the erroneous
Industrial (I) and Native (N) zoning placed on the property in 1986. The property owner has
never attempted to "mislead" the Monroe County Planning staff regarding the zoning at the
property.
Monroe County issued the "after the fact" permit to Cudjoe Enterprises in early 1998, but
it was then discovered that the August 7, 1997, Monroe County vested rights determination
(Exhibit C) had never been forwarded (by the Monroe County Planning staff) to the County
Commission for final approval. In a meeting with Monroe County Growth Management
2
Director Bob Herman and Planning Director Tim McGarry, Cudjoe Enterprises agreed that,
rather than pursue final approval of the August 1997 vested rights determination, Cudjoe
Enterprises would work with Monroe County and DCA to negotiate a final (all encompassing)
Settlement Agreement that would address all of the concerns of all of the parties. During these
negotiations, the issue of a conflict between the permitted heavy industrial use of the property
and the two zoning districts on the property (Native and Industrial) was discussed. The final
Settlement Agreement, executed on July 16, 1998 (copy attached as Exhibit "E"), specifically
addressed the zoning issues regarding the site. Because the permitted heavy industrial use (rock
mining) of over 43+ acres of the site continued to be in direct conflict with the 1986 zoning, the
final Settlement Agreement stated:
3. Zoning. All uses other than rock mining and related activities, present and
future, of the subject property will be consistent with zoning in effect at the time
applications for such use are submitted to Monroe County. (Emphasis added)
The final mining and excavation permit for the property (which encompassed the August 1997
vested rights determination) was issued by Monroe County on July 28, 1998 (copy attached as
Exhibit "F"). It should be noted that this Monroe County permit lists the zoning for the property
as I (Industrial).
In 1998, Mark Baker, real estate acquisition manager for Industrial Communications and
Electronics, Inc. (IC&E), did an extensive search of the Florida Keys for an appropriate site for
construction of a large tower capable of high-density television broadcast including rebroadcast
of South Florida television signals and broadcast of specialized mobile radio (SMR)
communication. Mr. Baker held numerous meetings with the Monroe County Planning staff in
this regard. Mr. Baker's chronological summary of his "due diligence" research is attached as
Exhibit "G". Also attached as Exhibit "H", is a hand-written note signed by Chad Meadows (of
the Monroe County Planning staff) agreeing that the Industrial zoning on the Cudjoe site was
correct for construction of communications facilities. Mr. Eddie Bie with Sounds of Service
3
Radio, Inc. was present at the meeting between Mr. Baker and Mr. Meadows. A letter signed by
Mr. Bie is attached as Exhibit "I". This letter corroborates that zoning of the subject property
was discussed and Mr. Chad Meadows confirmed that the Cudjoe property was appropriate for
the construction of the tower facility.
Based upon the numerous meetings with the Monroe County staff and the assurances from
Mr. Meadows, the property was purchased by Frank Dirico, the owner ofIC&E, in January
1999, Over the last three years, Mr. Baker participated in many, if not all, of Monroe County's
workshops on the proposed Monroe County Wireless Communications Ordinance. (Tower
Ordinance) Mr. Baker was understandably disturbed when he discovered that a provision that
required "horizontal separation" between facilities had been mysteriously added to the proposed
Tower Ordinance on the day of it's final hearing before the Monroe County Planning
Commission, This last minute addition to the proposed ordinance would have made the tower on
the Cudjoe Quarry site unbuildable. Following several hearings before the Monroe County
Commission, the Monroe County Planning staff removed the "horizontal separation" provision
and the Monroe County Tower Ordinance was unanimously adopted by the Monroe County
Commission in July 1999. It is important to note that when Monroe County passed the Tower
Ordinance there was no "zoning" problem regarding the construction of the Cudjoe Tower. The
new Tower Ordinance passed by the Monroe County Commission provided for the construction
of wireless communications facilities in Industrially zoned land and Native zoned land as
"conditional" uses.
After passage of the Monroe County Tower Ordinance, there remained one (supposedly
"final") problem with regard to the construction of the Cudjoe tower under Monroe County's
Land Development Regulations. Due to the engineering requirements to build the tower facility
to meet Category V hurricane force winds, the northwestern set of anchors for the tower guy
wires (and access road to the guywire anchors) would have to be located in, a wetland area which
4
was previously reserved for future rock mining use. Due to the vegetative classification of the
area as "high quality wetlands" there was no provision in the Monroe County Code for any
filling of these wetlands, Even if the heavy industrial rock mining operation was shut down and
use of the remaining property was forever precluded and substantial mitigation was provided,
there was no way Monroe County could issue a variance. Several meetings were held with
Monroe County staff and DCA staff and in these meetings it was decided that a Development
Agreement would have to be negotiated with DCA, as provided under Section 380.02, Florida
Statutes. This so-called "380 Agreement" was the only way to "vary" the total prohibition of the
Monroe County Land Development Ordinances. Monroe County Emergency Services Director
(Billy Wagner), the Monroe County Sheriff (Rick Roth) and DCA supported an expedited
procedure that would, hopefully, allow the Cudjoe tower to be constructed before the year 2000
hurricane season. If this was done, reliable countywide emergency communications would be
available to the entire Florida Keys. At a mid-1999 meeting with Interim Monroe County
Planning Director Tim McGarry, the necessary time frames and procedures were discussed and
he recommended that Industrial Communications negotiate a unilateral "380 Agreement" with
DCA. Mr. McGarry told Mr. Baker and Ms. Sandra Walters that if DCA approved the "380
Agreement' .,. "we [the Monroe County Planning staff] will honor it."
Mr. Baker proceeded to work directly with Secretary Seibert of DCA and his assistant to
prepare the "380 Agreement". Based upon the height requirement for the Cudjoe tower due to
the new technologies (HDTV and SMR) and the public services to be provided by the tower,
Secretary Seibert expedited the DCA approval of the "380 Agreement". The "380 Agreement"
was executed on December 6, 1999, and recorded in the Official Records of Monroe County on
December 13th, 1999. It is attached as Exhibit "J". The Agreement with DCA had the effect of
adding the following language to the 1998 Cudjoe Enterprises Settlement Agreement (Exhibit
E):
5
3. Zoning. All uses other than mining, and the communications
facility and related activities, present and future, of the subject
property will be consistent with zoning in effect at the time
applications for such use are submitted to Monroe County.
(emphasis added).
Since this December 1999 "380 Agreement" wording was consistent with the July 16th, 1998
agreement with Monroe County (Exhibit E) and the permitted uses under the prior agreement,
there was no reason for anyone to even suspect a "zoning problem". IC&E submitted its
application to build the Cudjoe tower and support building on November 20th, 1999, and on
December 8th, 1999, the Monroe County staff was provided a copy of the new "380 Agreement"
(Exhibit J).
The July 16th, 1998 Final Settlement Agreement (Exhibit E) involved a "revised restoration
plan" which not only included the restoration and reclamation plan incorporated into the 1991
Settlement Agreement (Exhibit B), but it also involved the. . , "creation of more than 8.6 acres
of additional endangered species habitat through removal of existing beams and fill to
surrounding wetland elevation." See Exhibit E, page 2, section 11(2), This extensive/expensive
restoration and reclamation of wetlands was based upon the future/continuing heavy industrial
use of the property to rock mining. When Frank Dirico, President and owner of IC&E purchased
the property in January 1999, it was for the sole purpose of building the Cudjoe tower; however,
during the past year, Mr. Dirico has proceeded in good faith on the implementation of the many
environmental improvements that were required under the July 16th, 1998 Settlement Agreement.
This is in spite of the fact that the heavy industrial use of rock mining will be discontinued when
the construction of the communications facility is complete, Attached as Exhibit K is a list of the
past year of good faith actions pursued by IC&E enhancing the environmental qualities of the
Cudjoe quarry site. It should be noted that these good faith actions have cost, and are costing,
tens of thousands of dollars.
6
On January 20t\ 2000, Mr. Baker was informed by the Monroe County Planning staff, that
the review of the Cudjoe tower permits application had "ceased" because of "incorrect zoning".
Monroe County staff also informed Mr. Baker that it would be necessary for the County
Commission to approve/ratify the "380 Agreement" between IC&E and DCA. Mr. Baker was
also informed that the Monroe County Commission had directed Monroe County staff not to
accept any more "380 Agreements". As can be appreciated, all of this came as a considerable
shock to Mr. Baker and IC&E due to the extensive history and expenditures on this project as
outlined above. Mr. Baker had received, substantial assurances (upon which Mr. Baker and
IC&E had relied) prior to the expenditure of funds for acquisition of the property, the purchase
of radio frequencies, and the years of work on the necessary approvals and permits and the
ongoing good faith mitigation activities,
Upon further inquiry with the Monroe County staff, it has been discovered that in the DCA
review of the July 1999 Monroe County "Tower Ordinance", DCA had "objected" to the part of
the Ordinance that allowed towers to be constructed using lands zoned "native". This
"objection" by DCA went all the way back to September 1999. This action by DCA has never
been brought before the Monroe County Commission for review and/or readoption. No public
notice, much less review, of this DCA action has taken place. Because the DCA action was
brought up for review, there was virtually no way Mr. Baker, IC&E and/or the Monroe County
Commission could have been aware of this suggested change in the Tower Ordinance. Due to
the newly apparent effect of this unknown DCA action involving the zoning and its effect on the
construction of the Cudjoe tower, there is a major problem facing the landowner and the Monroe
County Commission, both practical and constitutional.
7
CONCLUSION
There are a lot of reasons for the Monroe County Commission to address the problems
created by a number of inadvertent mistakes by local and state administrative officials. The first
thing that should be done is to instruct the Monroe County staff to process the permit application
for the tower. When the staff recommendation on the permit is ready, it should then be
considered at the same time the Monroe County Commission holds a public hearing on the
ratification of the "380 Agreement". This procedure would allow public input on the
construction of the communications facility/tower and the hardened tower support facility. The
Monroe County Commission should also instruct staff to present the Department of Community
Affairs objections to the Monroe County Tower Ordinance so that the administrative changes
can be either ratified/accepted or challenged by the Monroe County Commission.
Industrial Communications & Electronics, Inc., has well over One Million
($1,000,000.00) Dollars invested in the acquisition of the operational rock quarry, working with
the Monroe County staff on the Monroe County Tower Ordinance, and working with the Florida
Department of Community Affairs on the "380 Agreement". Industrial Communications &
Electronics has made good faith commitments regarding the free placement and use of a Monroe
County emergency communications antenna on the tower, This will provide countywide
emergency communications in the event of a major disaster. Because of the restrictions due to
the Federal Aviation Administration, the only place in the Florida Keys that is suitable (and
zoned) for a tower of this size is the Cudjoe property located within the FAA aviation-restricted
zone. The broadcast of high-density television (which is the only type of television that will be
available after 2006) can only be broadcast from a tower of this size. Industrial Communications
& Electronics will provide antenna space for the re-broadcast television signals from South
Florida that will be freely available to all Monroe County residents. Because of the emerging
new technologies, many future wireless communication antennas will be accommodated on the
8
Cudjoe tower. In most cases, the only alternate to the tall Cudjoe tower would be numerous
smaller towers, which, because of Monroe County's geographic configuration, would have to be
located near populated areas and much nearer to US 1.
Industrial Communications & Electronics has been placed in the position of having spent
substantial amounts of money in complete reliance on representations made by local and state
administrative officials. It would be highly inequitable for the Cudjoe tower to be rendered
unbuildable by coincidences of timing and actions that occurred without notice and with no
opportunity to take preventive action. Industrial Communications & Electronics has proceeded
for the past three years in total good faith and their expectations of being able to build this tower
are certainly reasonable.
9
J
/
j (,
DEPARTMENT OF THE ARMY PERMIT
Permittee
TARMAC FLORIDA, INCORPORATED
Permit No.
85IPG-21133
Issuing 0 (fice
u.s. Ar~y Engineer District, Jacksonville
NOTE: The term "you" and ita derivatives, a.s used in this permit, means the permittee or any Cuture transferee. The term
"this oCCice" refers to the appropriate district or division oCfice oC the Corps o( Engineera harinlf jurisdiction over the permitted
activity or the appropriate oCficiaJ o( that oCfice actinlf under the authority o( the commandinf oCCicer.
You are authorized to perform work in accordance with the terms and condition.s specified below.
Project Description:
The project involves the placement of 1.9 million cubic yards of
temporary fill material over 13.9 acres of wetlands in conjunction
with the expansion of an existing rock mine operation. Permanent
fill will be placed over 1.7 acres of wetlands to construct a new
berm as indicated in sheet 3 of 7.
The work described above is shown on the attached plans numbered
8SIPG-21133 in seven sheets; dated June 20, 1988.
Project Location:
The project is located in wetlands adjacent to Florida Bay in
Section 29, "Township 66 South, Range 28 East, Cudjoe Key, Monroe
County, Florida.
Permit ConditiolU:
Genenl Conditioru:
DEe 1 8 9 It- .
1. The time limit Cor completina' the work authorized ends on . U you find that you need
more time to complete the authorized activity, submit your request Cor a time extenaion to this oCfic:e Cor coruideration at leut
one month before the aboYe date is reached.
2. You must maintain the activity authorized by this permit in food condition and in conformance with the term. and caadie
tioaa oC this permit. You are not relieved of this requirement if you abandon the permitted activity, althourh you may make
a rood (aith tranafer to a third party in compliance with Genenl Condition" below. Should you wh to ceue to maintain
the authorized activity or should you desire to abandon it without a rood faith tranafer, you mUlt obtain a modification of
this permit from this oCfice, which may require restoratioa of the area.
3. If you discover any previou.sly unlcnowu historic: or archeolofic:al remain.a while accomplUhinr the activity authorized by
this permit, you must immediately notify this oCCice of what you hue found. We will initiate the Federal and state coordina-
tion required to determine if the remains warrant a recovery eCCoct or if the Gte ia eJieible (ot' listinlf in the National Re,uter
of Historic: Places.
ENG FORM 1721. NO"<'.'
EDITION OF SEI' 82 IS OBSOL.ETE.
Exhibit
\
1
II
(JJ CFR 320-330)
e. Dl.mage c1ainu 3SSociated with any future modiCication, swpension. or revocation oC this permit.
4. Reliance on Applicant's Data: The determination oC this oCCice that issuance oC this permit is not contrary to the public
interest was made in reliance on the information you provided.
5. Reevaluation oC Permit Decision. This oCCice may reevaluate ita decision on this permit at any time the circumstances
warrant. Circumstances that could require a reevaluation include, but are Dot limited to, the Collowine:
a. You fail to comply with the term. and condition. of thil permit.
b. The information provided by you in .upport of your pennit application prOYeI to have been Cwe, incomplete, or
inaccurate (See 4 above).
c. Si,mficant new in (ormation .urfaceI which thu office did not con.ider in reachinf tbe oripnal public intere.t deci.ion.
Such a ~valuation may relult in I determination that it ia appropriate to \lie the .wpenaion. modification, and revocation
procedures contained in 33 CFR 325.7 or enforcement procedures .ucb AI thoae contained in 33 CFR 326.4 and 326.5. The
referenced enforcement procedures provide for the iuuance o( an admini.trative order requirinf you to comply with the temu
and condiaona o( your permit and Cor the initiation of leJal action where appropriate. You will be required to pay (or any
corrective meuurel ordered by thi. office, and i( you fail to comply with .uch directive, thu oCfice may in certain lituationa
(.uch AI thoae .pecified in 33 CFR 209.170) accompluh tbe corrective meuures by contract or otberwile and bill you (or tbe
c~t.
6. ExtelUiona. General condition 1 establiabes a time limit Cor the completion oC the acanty authoriud by thu permit. UaJeu
there are circum.atances requirinf either a prompt completion of the authoriud .canty or. reevaluation o( the public interHt
dec:Uion. the Corp. will normally Jive Clvorable conaideration to I reque.t for an extenaion of thu time limit.
YO~:6:rl:~nnitw,'od'a~ ~.t yo. K"pt md.: ~ ,~:p: ::~. ~nm md ~a~tlOM at ~ __it
(PERMITTEE)-; . (DATE)
ThU permit becomes effective when the Federal official, desicnated to act for the Secretary of tbe Army, haa liined below.
i 1u.l"J":Y L DEe. 1 B 1989
(D11R1[;. ;;;;~ER) (DA TE)
Bruce A. Malson
Colonel, u.s. Army
When the stt'uctures or work authorized by this permit are still in existence at the time the property ia tranaCerred, the terms and
conditiolU of this permit will continue to be bindini on the new owner(s) oC the property. To validate the transfer of thil permit
and the associated liabilities associated with compliance with its terma and cOl1ditioD4, have the transferee lip and date below.
(TRANSFEREE)
(DA TE)
-..---.
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. ,
00;
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3
.U,S. GPO: 1MS-520-3Z'
\
PER..'1ITTEE: Tarmac Flo r ida, I nc .
c/o Scott Quaas,
Environmental Specialist
7752 N.W. 74th Avenue
Medley, Florida 33166
PERMIT/CERTIFICATION
NO. 441416955
\
.
DATE OF ISSUE: June 24, 1988
EXPIRATION DATE: June 24, 1993
7. The permittee, by accepting this permit, specifically agrees to allow
authorized department personnel, upon presentation of credentials or other
documents as may be required by law, access to the premises, at reasonable
times, wher~ the permitted activity is located or conducted for the purpose
of:
a. Having access to and copYlng any records that must be kept under the
conditions of the permit;
b. Inspecting the facility, equipment, practices. or operations regulated
or required under this permit; and
c. Sampling or monitoring any substances or parameters at any location
reasonably necessary to assure compliance with this permit or department
ru Ie s .
Reasonable time may depend on the nature of the concern being
investigated.
8. If, for any reason, the permittee does not comply with or will be unable to
comply with any condition or limitation specified in this permit, the
permittee _shall immediately notify and provide the department with the following
information:
a. a description of and cause of non-compliance; and
b. the period of noncompliance. including exact dates and times; or, if not
corrected, the anticipated time the non-compliance is expected to continue. and
steps being taken to reduce, eliminate, and prevent recurrence of the
non-compl iance.
The permittee shall be responsible for any and all damages which may result and
may be subject to enforcement action by the department for penalties or
revocation of this permit.
9. In accepting this permit, the permittee understands and agrees that all
records. notes. monitoring data and other information relating to the
construction or operation of this permitted source. which are submitted to the
department. may be used by the department as evidence in any enforcement case
arising under the Florida Statutes or department rules, except Vhere such use is
proscribed by Sections 403.73 and 403.111. Florida Statutes.
10. The permittee agrees to comply with changes in department rules and Florida
Statutes after a reasonable time for compliance, provided however, the permittee
does not waive any other rights granted by Florida Statutes or department rules.
11. This permit is transferable only upon department approval in accordance with
Florida Administrative Code Rules 17-4.12 and 17-30.30. as applicable. The
permittee shall be liable for any non-compliance of the permitted activity until
the transfer is approved by the department.
DER Form 17-1.201.(5)
Effective November 30. 1982
Page 3 of 7
".,
,..,.
PERMITTEE: Tarmac Florida, Inc.
c/o Scott Quaas,
Environmental Specialist
7752 N.W. 74th Avenue
Medley, Florida 33166
PERMIT/CERTIFICATION
NO. 441416955
DATE OF ISSUE: June 24. 1988
EXPIRATION DATE: June 24, 1993
12. This permit is required to be kept at the work site of the permitted
activity during the entire period of construction or operation.
13. This permit also constitutes:
( ) Determination of Best Available Control Technology (BACT)
() Determination of Prevention, of Significant Deterioration (PSD)
(X) Certification of Compliance with State Water Quality Standards
(Section 401, PL 92-500)
( ) Compliance with New Source Performance Standards
14. The permittee shall comply with the following monitoring and record keeping
requirements:
a. Upon Request, the permittee shall furnish all records and plans required
under department rules. The retention period for all records will be extended
automatically, unless otherwise stipulated by the department, during the course
of any unresolved enforcement action.
b. The permittee shall retain at the facility or other location designated by
this permit records of all monitoring information (including all calibration and
maintenance records and all original strip chart recordings for continuous
monitoring instrumentation), copies of all reports required by this permit, and
records of all data used to complete the application for this permit. The time
period of retention shall be at least three years from the date of the sample,
measurement, report or application unless otherwise specified by department
rule.
c. Records of monitoring information shall include:
the date, exact place, and time of sampling or measurements;
the person responsible for performing the sampling or measurements;
the date(s) analyses were performed;
the person responsible for performing the analyses;
the analytical techniques or methods used; and
the results of such analyses.
15. When requested by the department, the permittee shall within a reasonable
time furnish any information required by law which is needed to determine
compliance with the permit. If the permittee becomes aware that relevant facts
were not submitted or were incorrect in the permit application or in any report
to the department, such facts or information shall be submitted or corrected
promptly.
DER Form 17-1.201(5) Page 4 of 7
Effective November 30, 1982 \,
--
PERMITTEE: Tarmac Florida, Inc.
c/o Scott Quaas,
Environmental Specialist
7752 N.W. 74th Avenue
Medley, Florida 33166
PERMIT/CERTIFICATION
NO. 441416955
DATE OF ISSUE: June 24, 1983
EXPIRATION DATE: June 24, 1993
SPECIFIC CONDITIONS:
1. The permittee is hereby advised that Florida law states: "No person shall
commence any excavation. construction, or other activity involving the use
of sovereign or other lands of the state, title to which is vested i~ the
Board of Trustees of the Internal Improvement Trust Fund or the Depa~tment
of Natural Resources under Chapter 253. until such person has received from
the Board of Trustees of the Internal Improvement Trust Fund the requi~ed
lease. license, easement, or other form of consent authorizing the proposed
use." Pursuant to Florida Administrative Code Rule 16Q-14, if such work is
done without consent. or if a person otherwise damages state land or products
of state land. the Board of Trustees may levy administrative fines of up to
$10.000 per offense.
2. If historical or archaeological artifacts. such as Indian canoes. are
discovered at any time within the project site the permittee shall
immediately notify the district office and the Bureau of Historic
Preservation. Division of Archives, History and Records Management. R. A.
Gray Building. Tallahassee. Florida 32301.
3. The Marathon Department of Environmental Regulation office shall be notified
in writing 48 hours prior to commencement of work.
4. Turbidity screens shall be properly installed and remain in place until all
construction generated turbidity subsides. Other turbidity control measures
such as. but not limited to, staked filter cloth. staked hay bales. working
at times of low tide only. and sodding or stabilization of all disturbed or
created slopes. shall be used as necessary to control turbidity. A
pre-construction meeting between the DER Marathon office and contractors
shall be arranged to discuss construction techniques to be used. adequate
turbidity control devices and construction sequencing. This meeting shall be
held at least 30 days prior to commencement of construction. If visual
observation reveals apparent violations of State Water Quality Standards for
turbidity downstream of the work areas. construction activities shall cease
immediately and shall not resume until corrective measures have been taken
and turbidity has returned to acceptable levels. Any such occurrence shall
be immediately reported to the Department of Environmental Regulation, South
Florida District Branch Office. Marathon.
5. Prior to any fill or excavation to create/remove dikes. a line of staked
filter cloth shall line the entire perimeter of the specific work location.
set not more than 25' outside of the work limits. These screens shall be
maintained throughout the work sequence.
DER Form 17-1.201(5)
Effective November 30. 1982
Page 5 of 7
;.
-
PE~~ITTEE: Tarmac Florida, Inc.
c/o Scott Quaas,
Environmental Specialist
7752 N.W. 74th Avenue
Medley, Florida 33166
PERMIT/CERTIFICATION
NO. 441416955
DATE OF ISSUE: June 24, 1988
EXPIRATION DATE: June 24, 1993
SPECIFIC CONDITIONS CONT.
6. The proposed new northern and eastern dikes shown on Figure 2 and described
as Phases I and II in the attached letters dated November 5, 1987 and June
13. 1988 shall be completed and stabilized prior to removal of the
northernmost dike and northern section of the western dike to maintain the
complete isolation of further mining operations from waters of the State. No
mining nor lake expansion shall occur at any time the borrow lakes are
directly connected to surrounding'waters of the State.
7. The side and top surfaces of the new betm sections shall be compacted and
stabilized as necessary in all areas exhibiting or having the potential to
exhibit erosion, siltation, or turbid discharges into waters of the State.
~his stabilization shall be completed within 72 hours of any such occurrence
or notice of remedial action required by the Department.
8. All heavy equipment operation during removal of existing dikes shall be
restricted to working entirely from the confines of the existing dike. There
shall be no heavy equipment or spoil_stockpile allowed in the adjacent
wetlands and all measures necessary shall be taken to avoid damage to those
areas. To prevent repetitive description, the dikes shall be removed to
natural adjacent wetland grades in one (1) step as work progresses, unless an
alternate methodology is approved in advance by the Department.
9. All culverts shall be installed on or slightly below adjacent natural wetland
ground elevations to maximize water exchange.
10. The Marathon Department of Environmental Regulation office shall be notified
in writing 48 hours prior to commencement of work.
11. All spoil material shall be stored in a self-contained uplands area i~ such
a manner as to prevent any runoff into waters of the State. The exact
location of the spoil disposal site shall be submitted for Departmental
approval prior to start of construction.
12. All disturbed/created slopes shall be kept free of exotic species SUC3 as
Brazilian pepper and Australian pine for the life of the pennit.
13. All debris and junk on site in wetland areas to be connected to waters of the
State shall be removed to a self-contained approved upland disposal site
prior to removal of the northern and western dike"sections.
14. Where discrepancies exist between the above Specific Conditions and the
permit drawings, the Specific Conditions shall govern.
DER Form 17-1.201(5)
Effective November 30. 1982
Page 6 of 7
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TmiAC FLORIDA. INC.
ClJDJOE KEY EXCAVATION
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JULY 1985
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r. PCllCr'.S or Bloch.' The quanying operations of Ta.nnac and ern shall be fenced
or blocked so as to prevent unauthorized ,~try into the resource extraction operation
through access roads.
J.
Any renewal of Pennits 9010000520 and 9010000519
shall be reviewed under conditional use reQ.ulrements of Monroe CoWlty land use
regulatioDS, Division 3, fig, 9.5 . 61 thru SO, provided thar compliance with this Agreement
shall be a pr~umption of compliance with those requirements.
3. ZonmJ- Tarmac and ern may apply to Monroe County, Plorida, to include all
areas of the Cudjoe Key Quany on which limestone utraction activity is pennirred under
the Florida Department of Environmental Regulation and United States Army Corps of
Engineers pennits, to industrial zoning under Section 9.5.249 (c) (2) of ~ Monroe Couney
Land Development Regulations. DCA has no objec:rlon to 8:ctivities within a properly zoned
site.
4. At.rrHORrIY. This Agreement is made by DCA pursuant to its legal authority
under Section 380.032(3), Florida Statutes, and is enforceable pursuant to Sea:ion 380.11,
Florida Statutes.
5. SUCCRqsQRS AND ASSIGNS. This Agreement sball inure to the benefit of and
be bindl.ng on the successors and assigns of the parties.
6. EFFRCl'tV'F. DA TK. The effective date of this Agreement is that date when the
last party hereto sfgns a counterpart of this Agreement.
7. RECOMMHNnATION TO FLAWAC. The parties hereto recommend approval of
this Agreement and issuance of a Development Order by FLAWAC incorporating the
6
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. conditions set forth above. This recommendation includes resolution of that portion of the
appeal relating to permit No. 9010000519 (Blaster and User permit) only as it applies to
the Cudjoe Key Quarry site.
IN WITNESS WHEREOF, the parties have duly executed this Agreement and agreed
to be bound by its terms.
C.T.B., Inc.
By: ;/~dL/- /f?
Reviewed for legal form and
Sufficien~
By: ~/it{?t(J
Attorney, DCA
By:
-~~j:J.~~
THOMAS G. PEUiAM, Secretary,
Department of Community Affairs,
State of Florida
MONROECOUN1Y
8t
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By: \..,.JJ ~~. ,~ . .. ""--, . - r' - '\
Wilhelmina Harvey, Mayor
o.tI
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
.
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BY'..o..L~~~ 1~
Depu Clerk
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Sf ATE OF ~r\O'B-h.C1:V\QtvrtD-J
COUNTY OF ~jY\.1.0y()
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Subscribed and sworn to before me by KdJ)tic'n G. ~t ,
\{~ President of C.T.B, mc., a Florid~ Corporation this .9S+h day of~/Y\UD_'"t ~
-1-9ge on behalf of the corporation.
lC\Cl \, .
J......,-U, ) x\o-(3, K ...n,t.cJ....t-
, Notary Public ;:~
My, Co riunission expires: \:t -::) \ .. C( ,
ST~TE 'OF '.C}{{7Ldi-' "
COUN1Y OF L~ !-C:({.71-''LL
Subscnoed and sWorn to before me by Robert F. Scully, President ofTannac Florida,
Inc., a ~orida Corporation. this ~ day ofC(171t.J...J2'Uj 1990 on behalf of the
corporation. '
. -11n .
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-'j 7jf/LUL' JC ~ <' if-. 'jl ./
Not Public "
My Commission expires:
.~
Sf ATE OF ..2~ .
COUNlY OF
HOTARY PUBLIC STATE rF FLORIDA
MY COMMISSION EXP. AUG. 6,1994
BOHDED lliRU GEICERAL INS. UfO.
Subscribed and sworn to before-me by Thomas G. Pelham., Secretary o~the State
F;F10rida, Department of Community Affairs, State of Florida, this /f - day of
_ 1990"On behalf of the State of Florida Departtnent of Community Affairs.
- 1'J9/
'71!-, ..
Public ;. .,.., F '.r "1 A . (I .J_
.. .. .1__', l.6:...:. _ l.e :11. ,r:aa .
Comnusslon e~~UiOll t,'f;:~ ~~:~~ 24. 1992
1c.ftJ~ nu.. T:~I 1'1:.1. irw:=ncw ~q. .:;
8
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STAtE"OF FLORIDA
COUNTY OF MONROE
. ,:'
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arid sworn to be'fore me by Wilhelmina.cfj1V~
County, Flor ida, this J;)~ day of
of Monroe County, Florida.
l~g~!D1
My Commission Expires:
Subscribed
Mayor of Monroe
1991, on behalf
" .t.-' ,
":'1
Notary ~ !taft of nortlll
My Cor.II':'lis:'", ~;J:r:f !....'! ~.~. 1991
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RATTFICATION OF'SETTLEMENT AGREEMEN~
Upon review and consideration of the foregoing Settlement
Agreement, I hereby acknowledge and ratify this Agreement and have
. 8& .
executed the same th1s ____ day of Apr1l ,1991.
.~
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Reviewed for legal form
and sufficiency:
, -7/1/1(/
By: tYf/{I"/~
Attorney, DCA
M~fJJ~'
t ,
WILLIAM E. SADOWSKI, Secretary
Department of Community Affairs
state of Florida
--
state of Florida '
County of Leon
Subscribed and. sworn to before me by William E. Sadowski,
secreta~ of the Department of Community Affairs, state of Florida,
this 6 day of ~ ., , 1991, on behalf of the State of
Florida Department 0 Community Affairs.
.~
ary ~ublic.G:::"i S1af..;norf~
COmInl.ssion 1fJltP~~: J 2' 1991
My ComrrdsSlOG E:rplfeJ lmt ~,
~ tNlIlnlJ 1&l4.~W.~
l..
STATE OF FLORIDA
LAND AND WATER ADJUD[CATORY COMMISSION
IN HE: EXTENSION OF BUILDING
PERMITS (BIOLOGICAL' PERMIT - MINING
AND EXCAVATION) NO. 9010000520 and
9010000519 ISSUED TO TARMAC
FLORIDA, INC., BY MONROE COUNlY
IN THE FLORIDA KEYS AREA OF
CRITICAL STATE CONCERN
Case No.. 90-923
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AGREEMENT
(Cudioe Key).
This Agreement is entered into by Tarmac Florida, Inc., a Florida corporation
(''Tarmac''), C.T.B., Inc., a Florida Corporation, ("ern"), and the State of Florida,
.. '
Departtnent of Community Affairs ("DCA"), pursuant to Section 380.032(3), Florida
Statutes (1989).
.' .;. ........! , :
REOT A nONS
. .
This Agreement is based upon the following statements of fact and of law:
1. era is the owner of property located in Monroe County, Florida, which is now,
. . ....
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and has been for many years, used for limestone quarrying, commonly known as the
Cudjoe Key Quany. Tarmac is the mining op~tor of the Cudjoe Key Quany under a
Mining and Royalty Agreement dated August 1, 1984, as amended and assigned, (the
''Mining Agreement").
'1~
2. On March 20 1990, Monroe County, Florida issued. an extension and renewal
of the Mining and Excavation Permit No. 9010000520 for the Cudjoe Key Quarry arid the
Blaster and. User Pennit No. 90100005t9 associated with quarrying operations in the
Exhibit
.8
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, Cudjoe Key Quany, and elsewhere in Monroe County, Florida. On June 24, 1988, the
Florida Department of Environmental Regulation issued Permit No. 441416955 to Tarmac
authorizing removal of an existing dike structure surrounding the property, re-establishing
tidal flushing to approximately 21 acres of mangrove-dominated wetlands, installation of
culverts and access roads and protecting certain vegetation. On December 18, 1989, the
United States Army Corp of Engineers issued Pennit No. 851PG-21133 incorporating the
authorizations and conditions of the Florida Department of Environmental Regulation
pennit as to the Cudjoe Key Quany.
3. The DCA is the land planning agency of the State of Florida exercising duties and
responsibilities set forth in Chapter 380, Florida Statues, including the provisions of
Sections 380.05 and 380.0552 applicable to the Florida Keys Area of Critical State
ConcerI1. The DCA has asserted that it has the authority and responsibility und~ Section
380.07, Florida Statutes, to review the Mining and Excavation Pennit No. 9010000520 and
Blaster and User permit No. 9010000519 issued by Monroe COunty6 Florida to Tarmac on
March 206 1990 for the Cudjoe Key Quany, within 45 days after receipt thereof, to
determine whether such Pennirs comply with the Monroe County Comprehensive Plan and
Land Development Regulations and Chapter 3806 Florida Statutes.
4. On May 4, 1990 the DCA filed a Notice of Appeal from the issuance by Monroe
County, Florida of the extension and renewal of the Mining and Excavation Permits No.
9010000520 and 9010000519 relating to the Cudjoe Key Quarry, to the Florida Land arid
Water Adjudicatory Commission, (the "FlAWAC') where the appeal was assigned Case
Nos. 90-023.
.
2
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S. Tarmac and ern have asserted that their rights to continue mining operations
pursuant to the Permits issued by Moriroe County. Florida in 1985. which they assert have
been continually renewed and extended since that time. have vested. and that the DCA has
no basis or jurisdiction, pursuant to the express provisions of Section 380.05 (18). Florida
Statutes. to appeal from Monroe County's issuance of an extension and renewal of such
PemUt in 1990. The DCA has asserted that no vested rights exist. and that Permits No.
9010000520 and 9010000519. as they relate to the Cudjoe Key Quarry. do not comply
with land development regulations of Monroe County, Florida.
6. The parties however. desire to amicably settle and resolve the foregoing dispute
by agreement in order to settle now and for the future. Tannac's and ern's right to
complete the approved mining and excavation plans for the Cudjoe Key Quarry. pursuant
. .
to the Mining and ExcavatioI?- Permits issued by Monroe County. Florida. the Florida
Department of Environmental Regulation and the United States Army Corps of Engineer:s.
to Tarmac and ern relating to the Cudjoe Key Quarry. The parties therefore desire to add
certain conditions and modifications to the foregoing Mining and Excavation Permits issued
by Monroe County. Florida. and to dismiss the administrative appeals referenced above as
they relate to the Cu4joe Key Quarry. ern joins in this Agreement as owner of the real
property at issue to effectuate the terms hereof.
NOW THEREFORE. in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
.
3
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1. REm ALS. The foregoing recitals are true and correct, and the parties request
the FLAWAC to add the following conditions and modifications to Permits No. 9010000520
and 9010000519 relating to the Cudjoe Key Quany, as specified below.
2. PERMIT MODIFICATIONS. The following conditions and modifications are
added to Permits No. 9010000520 and 9010000519 as they relate to the Cudjoe Key
Quarry:
SETBACKS
A. Setback Requirements.
Tannac and ern shall setback deep limestone
excavations 200 feet from the property lines, and shoreline setbacks shall be as may be
required by, and pursuant to, the shoreline sloping requirements of Rule 16C-36.008(7)(a),
Florida Administrative Code, Umestone Reclamation Requirements of the Department of
Natural Resources, Division of Resource Management, effective July 16, 1987, a copy of
which is attached hereto and incorporated herein as Exhibit A. Such shoreline slope
setbacks shall generally conform to those depicted in the Final Mining Plan attached hereto
and incorporated herein as Exhibit B.
REcr.AMATION OR RESTORATION PLAN
B. Sloping Requirements: Drainage Requirements. Tarmac and ern shall follow the
shoreline sloping provisions as may be required by Rule 16C-36.008(7)(a) FAC. as
generally depicted in the Final Mining plan set forth in Exhibit B attached hereto and
incorporated herein, and configure such shoreline slopes so that surface water generated
by rainfall, to the maximwn extent practicable, shall be directed so as to provide maximwn
water use in support of the natural or landscape vegetation placed on such slopes, pursuant
.
4
I
,
( -
to Rule 36C-.008(7)(a) F.A.C. and the Vegetation Plan required by Pennit Nos.
9010000520 and 90100009J 9 and this Agreement., ";.. r, " ...:,
c. Vegetation. Tannac and era shall plant vegetation in the shoreline slope areas
pursuant tq the Vegetation Plan (Proposed Reclamation Plan) attached hereto and made
a part hereof as Exhibit C.
D. Depth. Tannac and ern shall not excavate more than 60 feet below natural
ground level.
E. Equipment and Structure Removal All equipment, machinery and structures,
except for structures which are usable for recreational purpo~es or any othex: authorized
use in the area, shall be removed within six months after the limestone reSource extraction
operation is terminated and restoration as set forth in this Permit is completed by Tannac
or CfB.
F. Surety Bond or Guarantee. Tannac or ern shall post a Surety Bond or other
guarantee of performance in favor of and approved by Monroe County, Florida in the
amount of $95,000. to secure performance by Tarmac and era of the Reclamation and
'-
Restoration requirements of pennit No. 9010000520 and this Agreement.
MINING OPERATIONS
G. Hours of Mining. Tannac and em shall conduct actual mining operations solely
between the hours of 7:00 a.m. and 7:00 p.m..
H. Saline and Fresh Aquifer Waters. Tarmac and ern shall not cause the
introduction of saline aquifer waters into fresh water aquifers.
.
5
, ( .! , (~~ :
r. PC1a5 or Bl~ The quarrying o~dons of Tarmac and ern shall be fenced
or blocked so as to prevent unauthorized ,~try into the resource extraction operation
through access roads.
J.
Any renewal of PennIts 9010000520 and 9010000519
shall be reviewed under conditional use reqi.tlrements of Monroe County land use
regulations, Division 3, ~~, 9.S . 61 thru SO, provided that compliance with this Agreement
shall be a pr~umption of compliance with those requirements.
3. ZoninZ Tarmac and ern may apply to Monroe County, Florids, to include all
areas of the Cudjoe Key Quany on which limestone ~ction activity is permitted under
the Florida Department of Environmental Regulation and United States Army Corps of
Engineers pennits, to industrial zoning under Section 9.S.249Cc) (2) of the Monroe County
Land Development Regulations. DCA has no objection to ~ctivirles within a properly zoned
site.
4. AtrrHORITY:, ThIs Agreement Is made by DCA pursuant to its legal authority
under Section 380.032(3), Florida Statutes, and is enforceable pursuant to Section 380.11,
Florida Sta tutes.
S. SUCCRqg()RS AND ASSrGN~ This Agreement shall inure to the benefit of and
be binding on the successors and assigns of the parties.
6. EFFECI1VF. DA TF'q The effective date of this Agreement ts that date when the
last party hereto signs a counterpart of tb!3 Agreement.
7. REmMMHNnATION TO FLAWAC, The parties hereto recommend approval of
this Agreement and issuance of a Development Order by Fl.AWAC incorporating the
.
6
(. . . '
(, .
. conditions set forth above. This recommendation includes resolution of that portion of the
appeal relating to Permit No. 9010000519 (Blaster and User permit) only as it applies to
the Cudjoe Key Quarry site.
[N WITNESS WHEREOF, the parties have duly executed this Agreement and agreed
to be bound by its tenns.
C.T.B., Inc.
By: ;7'~c:Jtu-- /f?
Reviewed for legal fonn and
Sufficiency:
By: ~/Jjp{/
Attorney, DCA
By:'
'~~Jj,~~
THOMAS G. PELHAM, Secretary,
Department of Community Affairs,
State of Florida
MONROECOUN1Y
8)'
~"/AS
NlD .
-
/~~I; ~I
-. -'~--
By: ~ .~~.e~. . "",-.,. - r', '\.
Wilhelmina Harvey, Mayor
"*
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
,
~ ;
By:
...]-1:;'. &J I
.
7
('
/'
,. .'
':- .
Sf A TE OF 'r\O'\M,CnJ\QJ..vno..J
COUNTY OF '.lA..iY\..lO,D
. ~.'.. : "
Subscribed and sworn to before me by KdAtrc'Y\ G... ~t .
\{.J.b...) President of C.T.B, me., a Florid~ Corporation this .?S+h day of ~'-Cl.'1 CC
-19ge on behalf of the corporation.
l~\, .
J....,-'Q, ) -Dc-- (.:3. k -n.t.C'~
, Notary Public 'J
My Coriunission expires: \:z -:J \ . q ,
Sf A TE ~F '-:;){{ -rz...U:iii-' "
COUNlY OF .(~ !{)t(..7L''LL
. Subscnoed and sWorn to before me by Robert F. Scully, President of Tarmac Florida,
Inc.J a ~orida Corporation, this ~ day ofcr 71UJ1,'Uj 1990 on behalf of the
corporation. '
~rk{]d,'w, X , -;;.-In 'if-' 'it "".
Not Public "
My Commission expires:
.~
STATE OF ...J~ .
COUNTY OF
NOTARY PUBlIC STATE OF FLORIDA
MY COHKISSIOH EXP. AUG. 6.1994
BOHDED THRU GEHERAL INS. UfI).
Subscribed and sworn to before- me by Thomas G. Pelham, Secretary o~the State
~F10ridaJ Department of Community AffairsJ State of Florida, this /f - day of
~ 1990 "On behalf of the State of Florida Oeparnnent of Community Affairs.
. /'991
~,
Public ;. .'-1 F' r..- ",.. . cl ..J_
.. . .. J._ ......10:, ... l.~ -:at. ~r:OQ .
COIIUIUSslon e~~uion t'~i...~ }:~~ 1"'.1992
a.:-J.a.J n".. T:~l T 1:..,\. .r...::"cw ~q. ...:;
.
8
L,
(, i,
(
\;' .
STAtk . OF FLORHfA
COUNTY OF MONROE
.0
arid sworn to be'fore me by Wilhelmina .!lli~
County, Florida, this J;)~ day of
of Monroe County, Florida.
~{!g4!t1
My Commission Expires:
Subscribed
Mayor of Monroe
1991, on behalf
.. .1." ,
~'f
- IIotary ~ !taft of "orlls
My Cor.v':')is:'~ rx?:r:t .'II"~ 14, 1991
....c:.... ~.... ~~ !...... ....'::.1C.
",-
.
9
(
C.,';
RA~FICATION OF 'SETTLEMENT AGREEMENr
.~
..l.1 .
.....
Reviewed for leqalform
and sufficiency:
By: d!I~(J
Attorney, DCA
;J~$J~.
WILLIAM E. SADOWSKI, Secretary
Department of Community Affairs
State of Florida
--
state of Florida '
County of Leon
Subscribed and sworn to before me by William E. Sadowski,
secreta;r.x of the Department of Community Affairs, state of Florida,
this ~ day of ~ .. , 1991, on behalf of the State of
Florida Department 0 Community Affairs.
.~
ary ~ublic.~ Slafurnorf&;-"
Conunl.ssion 19lip:l~: J 24 1991
My Conur.issioa bpltu &;nf ,
~ tl\II JftJl..~W.~
.
~
co.
(
, I
RULES
OF THE
DEPARTMENT OF NATURAL RESOURCES
DIVISION OF RESOURCE MA~AGEMENT
CHAPTER 16C-36
. :-
LIMESTONE REC~TION REQUIREMENTS
, . . ~ ,,".~' .
" .
I" .,
EFFECTIVE: JULY 16, 1987
Questions or comments about these rules should be sent to:
Limestone Reclamation
Bureau of Mine Reclamation
903 West Tennessee street
Tallahassee, FL 32304
Phone: 904/488-8217 "
.
.
section
16C-J6.001
16C-J6.002
16C-J6.003
16C-J6.004
16C-J6.00S
_16C-36.006
16C-36.007
16C-36.008
16C-J6.009
16C-36.010
16C-J6.011
16C-36.012
16C-J6.013
16C-J6.014
(
CONTENTS
OF
CHAF'l'ER 16C-J6
LIMESTONE RECLAMATION REQUIREMENTS
,
Title
Intent and Applicability.....................
Definitions..................................
1
1
Notices, Plans, and Information Required..... 3
Document Format and Standards................ 5
Notification Procedures.~.................... 6
Agency Review Procedures.......~............. 6
Confidenti~lity and Availability of Records.. 7
Reclamation Standards........................ 7
Inspections.................................. 10
Release Procedures......;.................... 11
11
12
12
12
Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Violations, Injunctive Relief, and Penalties.
Donations of Land............................
Forms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
Page
....
16C-36.001
16C-36.002
16C-36.003
16C-36.004
16C-36.005
16C-36.006
16C-36.007
16C-36.008
16C-36.009
16C-36.010
16C-36.011
16C-36.012
16C-36.013'
16C-36.014
(-
( :'
RULES
OF THE
OEPARTMENT Of NATURAL RESOURCES
OIVISION OF RESOURCE MANAGEMENT
CHAPTER 16C-36
lIMESTONE' RECLAMATION REQUIREMENTS
Intent and Applicability
Definitions
Notices, Plans, and Information Required
Document Format and Standards
Notification Procedures
Agency Review Procedures
Confidentiality and Availability of Records
Recl amat ion Standards.
Inspections
Release Procedures
Reports
Violations, Injunctive Relief, and Penalties
Donations of land
Forms
.,
. "
16C-36.001 Intent and Applicability. '.
(1) The intent of the rules in this chapter is to assure that:
, (a) Florida's lands, waters, and wetlands which are mined to remove
limestone from underlying strata are reclaimed in accordance with the
provisions of chapter 378, part IV, Florida Statutes.
(b) The department's regulatory procedures and standards are
clearly set forth so that all interested citizens will understand the means by
which required notices and conceptual reclamation plans are reviewed and
reclamation activities are monitored.
(2) Nothing in these rules shall be:
.(a) Construed to limit, abridge, or alter any agency's duties,
authority, and responsibilities, as otherwise provided by,law.
(b) Deemed to preempt local ordinances that impose stricter
reclamation and restoration standards.
(3) The department's authority extends only to reclamation activities
and not to the extraction or material processing of limestone.
Specific Authority 370.021, 378.404 FS.
law Implemented 378.404, 378.412 FS.
History'- New 7-16-87.
16C-36.002 Definitions. For the purpose of this chapter, the following
words and terms shall have the definitions and meanings ascribed to them in
this section:
(1) -Agency. means an official, committee, department, commission,
officer, division, authority, bureau, council, board, section, or unit of
government within the state, including a county, municipality, or other local
or re~ional entity or special district.
(2) -Bureau. means the Bureau of Mine Reclamation, 903 West Tennessee
Street, Tallahassee, Florida 32304. .
-1-
16C-36 LIMESTONE REC~~ ~ON REQUIREM~NTS
(
7-6-87
{3} .Certified- means approved by the executive director to administer
the requirements of this chapter. This term shall only apply to the
Department of Transportation or a local government. ,
(4) .Conceptual plln. means a generalized graphic and written
description of mining and reclamation activities.
(S) .Oepartment- means the Governor and Cabinet, sitting as the head of
the Department of Natural, Resources.,. ,
(6) -Executive director- means the chief administrative officer of the
department or his designee.
(7) .Existing mine- means any mine upon which an operation is being
conducted, or has been conducted, on October 1, 1986.
(8) -Extraction- means the removal of limestone from "its location, so as
to make it suitable for commercial, industrial, or contruction use; but does
not include excavation soley "In aid of on-site farming or on-site
construction, nor the process of sear~hfng, prospecting, explqring, or
investi9ating for limestone by drilling. ' ,
(9) -Limestone- means any extracted material composed principally of
calcium or magnesium ca~bonate. This includes coquina and shell.
{10} -Local government- means any county or municipality. .
(11) -Mine. means an area of land upon which mining operations have been
conducted, are being conducted, or are planned to be conducted, as the term Is
commonly used in the trade. .
(12) - -New mine- means any mine that is not an existing mine~
(13) .New surface area- means any area at an existing mine which Is
initially disturbed by mining operations after January 1, 1989, or where
removal of undisturbed overburden begins after January I, 1989.
(14) .On-site- means within the contiguous limits of an area of land
under one ownership or control and upon which farming or construction
activities are taking place. Areas of land that are divided by public or
private roads are considered contiguous if such areas are under one ownership
or control.
(IS) -Ope~ltion- means any activity, other than prospecting, necessary
for site preparation, extraction, waste disposal, storage, or reclamation.
(16) .Operator- means any person engaged in an operation.
(17) .Overburden- means'soil and rock removed to gain access to the
limestone in the process-of extraction and means such soil or rock before or
after its removal. This does not include tailings or screenings generated by
limestone processing.
(18) -Reclamation- means the reasonable rehabilitation of land where
limestone extraction has occurred.
(19) .Sheer wall. means any near vertical surface of consolidated
limestone that is above the water table and ten feet or more in height.
(20) -Wetlands- means any area having dominant vegetation as defined and
listed in Department of Environmental Regulation Rule 17-4.022, Florida
Administrative Code, regardless of whether the area is within the Oepartment
of Environmental Regulation's jurisdiction or whether the water bodies are
connected.
Specific Authority 370.021. 378.404 FS.
Law Implemented 378.403, 378.404 FS.
History - New'7-16-87.
.
-2-
08/08/97 12:43 FAX 3052892536
GROWTH !IGMT
~02
BEFORE mE VESTED RIGHTS
HEARING omaR IN AND FOR
MONROE. COUNT\" FLORIDA
~RE:
TlU: VESTED RIGHTS APPUCA nON OF:
Cudjoe Enterprises. Jot..
I
This cause came on to be heard by the Vested Rights Hearing Officer. who. after having reviewed
the application and eMibits. heard oral presentation of the Applicant and hislher anomey, if any. makes the
following findings offact and conchmons of law:
FINDINGS OF FACT
The AppliCant bas taken the following actions [0 obtain approval for the development sought:
a, Mining aud excavations activities have rakeD place on the subject properlY since u least
AuguSll, 1984, these ~es were pursuant permits issued by Monroe County. Florida;
b, In the latter pan of 1989 or che beginning of 1990, C.T.B., Inc. applied for and was
issu~ Mining and Excavation Permit No. 9010000520 and Blaster and User Permit No
9010000519 by Monroe County.
c, the Florida Depamnent of Community Affairs appealed the issuance of these pennits by
Monroe County;
d, the appeal was amicable settled and an agreement was entered into in Florida Land and
Water Adjudicatory Commission Case No. 90-923, Monroe County was a party to this
agreement, a copy of which is attached as exhibit 1:
e. Florida Depanmeru of Environmental Regulation, Florida Land and Water Adjudicatory
Commission and the Army Corp of Engineers as weU as Monroe County have issued
Development Orders or permits for this project;
f The pennits issued pursuant to the agreement required annua.I renewal under the
Monroe County Code however the applicant and his predecessor in interest failed to apply
tor or obtain the renewal permits until after the effective date of the Plan;
Exhibit
08/08/97 12:43 FAX 3052892536
GROWTH MGMT
@03
g. The legal eff'ec:t of the failure by the Applicant to obtain the annua.I County renewal
permits was the source of it difference of opinion at me hearing he.ld on this application;
h, Mr. Herb Rabin. Monroe County Building Official, argued that tailw-e by the applicant
and it's predecessor in interest to obtain the renewal pennies as required by ~9,5-lll(a)
required the applicant to comply with Monroe County 1010 Comprehensive Plan pursuant
to ~9,S-2(b)(1) llJ1d (5), a copy of the supplemental memorandum provided by Mr. Rabin
is auached as exhibit 2;
i, A letter in response to the memorandum was prollided to Mr, Rabin by the undersigned
and to the extent that the letter provides an analysis of the argument proposed by Mr,
Rabin is incorporated herein. a copy of the lener is aiw:hed as ~bit 3;
2. The Applicant has been diligem and acting in good faith in pursuing the pennit sought and bas
substantially changed it's position by continuing to exptmd a substantial sums by operating the facility from
March, 1991 until the permit issue was discovered
l The developmem (application process) has commenced aDd has eootinued in good faith without
interruption,
CONCLUSIONS OF LAW
01, The penniu issued to tbe Applicant March 20. 1990 and the settlement agreement to which
Monroe County was a pany constitute an approval UPOD which the Applicant couJd justifiably rely, Monroe
County Year 20/0 Comprehensive Plan. Policy 101.182 (1)
S, It woufd be highly inequitable or unjust to affect the riglns of the Applicant by requiring the
Applicant TO conform witb the Plan. Moruoe County Year 20/0 C0171prehensive Plan. Policy 101.18,2
(2)(b),
6, The Applicant'" requ~ for Vested Rights i$ Granted subject to the following restrictions:
a, The geographic scope of this Determination is limited to the scope relative to the toral
area of the development site as contemplated by me original application;
08/08/97 12:43 F~! 3052892536
GROWTH MGMT
14104
b, The duration of this Determination and its termination shall be as contemplated by the
originaJ application;
c, The substamive scope of this Determination shall be as contemplated by the original
application;
d, By vinue of this determination, the AppliCant is entitled to development as
contemplated by the plans as approved and subject to the Monroe County Land Development Regu.lations
existing January 4, 1996, however, amendment! to the Monroe County Land Development Regu1atioll5
shaJI apply if such amendments would have applied to the development notwithstanding Monroe County
Year ~OIO ComprehensIVe Plan.
c. The Applicam is entitled to the coftStlUc:tion contemplaled by the original application so
long as the cOllSuuc:tion is timely commenced and subject to quarterly reporting to ensure that development
is continuing in good faith,
DONE AND ORDERED at Mamhon.
{J~ 1991,
Monroe CoUllt}', Florida this ~ day of
~~~
FBN 177163
Vested Rights Hearing Officer
.
"AFTER THE FACI" & '70 COMPLETE"
APPLICATION FOR BUILDING PERMIT
MONROE COlJN'TY GROWI1i MANAGEMENT DIVISION
NOhl: ALL OWNER BLnLDERS MUST APPLY IN PERSON (p.s, 489.103(7))
Rec'd by:
lAte
19
Ptnnh .
9010000520
Propn1yOwntr'. Nama: Cudjoe Enterpri,ses,
Address: P.O, Box 431646, Big Pine Key, FL
Cudjoe
Inc.
Appllatlon Date:
Phone:
July 28
(305) 872-4951
19 97
33043
Prvptrly O..crlptlon. K.y
Subdivision N/ A
Lot
und Use Districl
MM
Sec. -1L Twn. ~ Rge..1!!L Flood. Zona
renewal of excavation permit-Cudjoe Key ATFSq,Ft,
Quarry
TC Sq, Ft.
Block RE.
Street Cudjoe Key Road (B1 imp Road)
Altn Iht Fl<t ConotN<tlonl
To Compltl. Con.tructfon:
Pa.nel II
Alln Ih. Fut Building COlt:
To Complet. Con.truction CO.I:
Oud, appU".blr box lor Roofing Pmnlta NEW 0 RE-RooF 0
Conmcton Name: Ron McPha 11
Addr~s: P.O. Box 431646, Biq Pine Key, FL 33043
Bonding Company Name: _ ,__
Addr.,,:
An:hitK1lEng.lnur'. Name:
Address:
Mortgag. Lend.r'. Nilme:
Address'
Sub"ontr
RE-COVER 0
Phone: (305) 872-4951
COWPU'liIt . CDmiICA Ti .
ENG 207A
Phone:
Phone:
Phone:
Roofing
Electrk~
I
Iclonl After the Fact To Complete
$ $
I
eal
g
Mechani
Plumbln
Monro. County Drivrw.y Permit II
Is und.c:aplng or Pili R~ulr.d7
General Remuk"
Yet 0
S.ptie T.tnk - Heilllh Dept. Permil ,
No 0
I hareby cmlry lhall hilve read and examined this applJcatlon and know that aameto be true and correct, All provisions oilaw. and ordinanCel
llOvnlllllg thiltffl work will ba complied wllh wfulthllr specified herein or nol, l1\e gnnlinp; of a pIIrmit aces not presumo to give authorit)
fo vlolata or caneelthe provl.lon. of lny beal. slate or te<1wallaws regulating con5h'uction lit the performan,e ofconllru,tion.
~. ollCl'/n addition tQ Ihe ~Ulrem,"u of thU permit thWll may be addltlonalrestrlc:tiQN applicable \0 thLs proporty that may be found ir
t a pUblic nlI:ord. of thlll;Q !y, and thenl LNY'be adilltlonal pannils required from other governmental entitles .ud\ at water managemen,
5tHclS, st41e agellclu or f, atal agencIes.
WARNI~G TO OWNEr?' YOUR FAILURE TO rn:~ORD A NOTICE OF COMMENCEMENT MAY RESUlT IN ygvn PAYING 'I'vVICE FO~
IMPRO E MENTS TC YOlJR PROPERTY, IF YOU INT NO TO OBTAIN FINANCING, CONSULT WITH YOUIHENDER R AN A lTOl<NEY BEfO/((
RECOR ING YO NOnCE OF COMMtNCEM NT.
. .... v I S. 8US Contractor
B Signature:
B ' nm exp, 61JA/oo
ODd By S ,[Jf(te"
erv'ce IDS
!:Jp, CC37886I
,....... /J~ll1.
My Commission Expires
FIRE MA RSHAL
RAD/REC
BLnLDING
ROOFING
ELECTRICAL
Ale. MECHANICAL
PLlIMlllNG
TOTAL PERMIT FEE
APP. FEE CREDIT
AFiER THE FACT PERMIT COST
TO COMPLJITi! PI!RMIT COST
DATE
PERMIT FEE DUE
Exhibit
o
FOR DEPARTMENT USE ONLY;
DEVELOPMENT I
_ NON-OEVELOPMENT
BUILDING OFFICIAL, ASST BUilDING OFflCIAL
APPROVE'D FOR ISSUANCE OF PERMIT
BPAPP3/91I.
KEYS (305) 294-1238
FAX (305) 294-2164
MIAMI (305) 661-4928
FAX (305) 668-4658
e.MAIl: barrell@signalnel
July 24, 1997
Ms, Patty Herman
Monroe County Building Department
2798 Overseas Highway
Marathon, FL 33050
Subject: After-the-fact application for excavating permit annual renewal, Cudjoe Enterprises, Inc.
Permit No. 9010000520
Dear Ms, Herman:
Cudjoe Enterprises (CE) did not fIle for annual renewals of this excavation permit due to reliance on the
settlement agreement between the Florida Department of Community Affairs, Tarmac Florida, Inc. and
Monroe County, issued in March 1991, as authority to continue work. CE applied for vested rights under
the September IS, 1986 Monroe County Comprehensive Plan, and presented our case to the County's
vested rights special master, Mr. Randolph Sadtler, on June 5, 1997. Mr, Sadtler sent a letter to Mr. Herb
Rabin concerning our application on July 3, 1997 (please see Attachment 1), in which he observed that
CE's reliance on the settlement agreement was correct and that CE must comply with the provisions of the
September 15, 1986 plan. The letter also noted that the settlement agreement did not exempt CE from
permitting requirements under that plan, but that annual renewals of mining permits are ministerial in nature,
allowing periodic inspections to assure compliance with the long-term mining plan. Mr, Sadtler concluded
that an after-the-fact permit would be the appropriate remedy to the situation.
We believe this letter provides clear guidance on the best avenue to proceed, and clearly indicates that Mr,
Saddtler will issue a vested rights determination, thus exempting CE from application of Policy 801.2,1 of
the County's 20 I 0 Comprehensive Plan, which would prohibit and expansion of existing mining activities.
Therefore, with this letter we request after-the-fact reissuance to the present owners-Cudjoe Enter-
prises, Inc-ofthe above-referenced excavating permit, previously issued to Tarmac Florida, Inc.
In this regard, we provide the following information to address the permit reissuance requirements speci-
fied in Policy 208,2,1-10 of the 2010 Plan, as is being required of all active mining operations in the
COlmty:
Policy 208.2.1 (a) Retention of first flush of runoff onsite
The existing two basins of the Cudjoe Key Quarry currently are contained by fill pads with elevations
which range from 2,0 feet to 3.1 teet above assumed NGVD (please see Attachment 2, July 22, 1997
Overbeck elevation survey). The volume ofrunotfrequired to be retained onsite by the Florida Depart-
ment of Environmental Protection is that generated by the 25 year, 3 day storm event. Engineering calcu-
lations have found that a berm 1.59 feet above NGVD would contain this storm event. Therefore, the
existing berms serve this function during excavation activities, Cudjoe Enterprises plans to construct final
containment berms, upon closure of the pit, at elevation J feet above NGVD, to provide a safety factor in
stormwater retention,
Policy 208.2.1 (b) Turbidity con trois to prevent contamination of adjacent waters
The berms described in the response above serve this function, as well.
600 WHITE STREET, SUITE 5. KEy WEST, FL 33040
4530 SW 68 COURT CIRCLE, SUITE 6, MiAMI, FL 33155
I A , Sandra
Iflfalters
CONSULTANT
t--'lI Sandr.. K-.J B"'....tt. ~o'I.
Ms. PAllY HERMAN
JULY 24, 1997
PAGE 2
Policy 208.2.1 (c) All point sources of pollution will be reduced in accordance with state and
federal standards
This facility is self-contained and causes no pollution to the subject property or surrounding properties, As
the groundwater in the area and in the rockmines is saline, there are no concerns regarding contamination
of a freshwater lens.
Policy 208.2.2 lVleasures to decrease air quality impacts
This is a small operation which does not utilize large crushers, screening plants, or any other equipment
which would affect air quality. No concrete plants or equipment are utilized on the property,
Policy 208.2.3 Proper precautions regarding blasting
Cudjoe Enterprises has not conducted blasting activities since acquisition of the quarry, and does not
intend to conduct blasting at this time. Before blasting activities are resumed, a fully-qualified and certified
blasting contractor will be retained, and all required permits and authorizations will be obtained.
Policy 208.2.4 Excavation will not exceed 60 feet in depth
Please see Attachment 2, which is an elevation survey conducted on July 22, 1997 by H.L. Overbeck,
Inc. This survey found a maximum excavation depth of 48 feet in both pits, with of the bottom substantially
more shallow than this. Therefore, this condition is presently met, and the final excavation will not exceed
60 feet.
Policy 208.2.5 Reclamation plan
A reclamation plan was required as part of the 1991 settlement agreement between the Florida Depart-
ment of Community Affairs (DCA), Monroe County, and the previous owners, Tarmac Florida, Inc.
Oversized engineering drawings detailing this plan are on file in the Monroe County Building Department.
Policy 208.2.6
(a) stormwater management plan
Please see response to Policy 208,2.1 (a), above.
(b) soil erosion and sediment control plan
Please see response to Policy 208,2.1 (b), above.
(c) fugitive dust control plan
Please see response to Policy 208,2.2, above,
(d) reclamation plan
Please see reclamation plan oversized engineering drawings in the files of the Monroe County Building
Department, which were submitted as required by the 1991 settlement agreement between DCA, the
County, and Tarmac,
(e) documentation of excavation maximum depth
Please see Attachment 2.
(f) risl{ analysis and pre-blasting survey
Please see response to Policy 208.2.3, above. Also, please note that there are no structures within at
least 1,500 feet of the quarry,
Policy 208.2.7 County inspections of site to assure compliance
The County is always welcome to the site, although we request advance notification to assure presence of
a supervisor who can answer questions and assure the safety ofanyone coming onto the property.
Policy 208.2.8 Reclamation plan
On file in the Monroe County Building Department.
I A ., Sandra
IfValters
CONSULTANT
1-......":1 S""a..A K<IlII1I11TCtt, />f.A.
Ms. PAID HERMAN
JULY 24, 1997
PAGE 3
Policy 208.2.9 No non-conforming uses
The property containing the Cudjoe Key Quany is zoned Industrial (I, please see Attachment 3, land use
district map of site), and resource extraction is a conforming use in this land use district.
In addition, as specified in Section 2.J of the 1991 Settlement Agreement, we assert in this application that
we are in compliance with all provisions of the Agreement, as defined in documents and engineering
drawings on file with the Monroe County Building Department.
Policy 208.2.10 Oil and gas exploration
The Cudjoe Key Quany is utilized strictly for the purpose oflimerock mining,
Finally, you requested we provide documentation of economic activity conducted since purchase of the
property, in December 1994. Please see Attachment 4, which is a listing of all sales made by Cudjoe
Enterprises since purchase of the property,
Thank you for your assistance in preparation of a complete application, Please call if you have any
questions.
Sincerely,
~~
Sandra Walters
Attachments: I July 3, 1997 letter from Randolph Sadtler to Herb Rabin
2 July 22, 1997 Overbeck elevation survey
3 Land Use District Map showing Industrial (I) zoning
4 Cudjoe Enterprises sales from 1994 through June 1997
cc, Ron McPhall, President, Cudjoe Enterprises
Nicholas Mulick, P,A.
ATTACHMENT 1
Randolph W. Sadtler, P.A.
Attorney at Law
Post Office BOll 14-4 Tavernier, Florida 33070
Telephone/Facsimile (305) 852-1966
July 3, J 997
~\'lr. Hcrb Rabin
Monroe County Regional Selvice Center
2798 Overseas Highway, Suite 300
Marathon, Florida 33050-2227
R(;: Cudjo~ Enterprises. Inc. - Application for Vested Rights
Dear Mr, Rahin:
This It:uer is to ul.:knowkdge receipt of your memorandulll tlated June 6, 1997,
I would first direct you attention to Policy 10 Ll8.2, Monroe Counly Year 201 () Cvmprehensil'e Plan.
This provision sets forth the Vested Rights procedure under the Plan. It has been my understanding that
granling of Vested Rights, under the Illan means that the applicant need not comply with the requirements
of the Illan, rather, the successful applicant would be allowed to continue development pursuant to
Chapter 9,5 and other applicable provisions oftJlc Monroe Cvun~y Cvde.
Accordingly, under Policy 101,18.2, the sole inquiry, under the facts of this case. is whether an approval.
by tvlonroe County ol:cl11Ted prior to the effective date of the Plan, rcli.mce on that approval by the
applicnnr, and a change of position ba<;ed on that reliance. I found lhat the settlement agreement between
Ihe: State of Florida, Monroe County and dIe applicant to be such an approval. TIle applicant mllst still
comply with all other requiremellts of the :\Iol1roe ('Ol/IIZF Code, including 9.5-111 (a).
I f my understanding of the Plan is correct, the provisions of the Code have no npp/ication when
detennining Vested Rights under the })/an.
Wirh reg:lrd to your numbered pnmgJ':1ph I, I do 1I0t bclie\.'e there WHS any :1rglllTlent at Ihe hearing [lwr:
a. 111c Settlement Agreement of March, /991 does not exempted the applicant from
permitting rC(lllircmcnts lindeI' the Monroe ( 'ai/my Code;
h. lilt: applil:anr and his predecessor in interesr had failed to apply for such pennits,
This tact does nol alter my conclusion that the Settlement Agreement of March /991 was an approval
IIpOIl Wllldl Ihe applic:ml l:Ould rely under the I'lan. Accordingly, what ever consequences may betall the
appJi.:ant tor h~l\ing t:likd to obtain penn its under Chapter 9.5. I\lonroe COllll~l' ( 'ode an: srill alive and
\\ d I.
. .
}{'rgarding your numbered paragraph~, I have read section 9.5-2( b)( I) and (5) and find that 1 must
disagree wilh YOllr conclusion, While hoth suh-secliolls ( I) and (5) do refer 10 IIII' comprehensh'e plan. ill
nc:ilhc:r slIb-se:clioll could I lind the: word L'/lrrel/I, 1 can only assume that the ""ord cllrrel/I was interpose:d
in YOllr memorandum as YOllr constTucrion of rhese sub-sections, I do not share that consmlcnon tor the
H~rh Rahin lellc:r
July 3. 1997
Page 2
reasons set forth bdow.
If you will note at the bottom of pages 773 through 776, you will sce the notation, Supp No, 33.
Supplement 33 to the Alonroe COlm~v Code is a very significant supplement. It was the supplement,
which adopted the Comprehensive Plan of September 15, 1986. The provisions upon which you rely for
your conclusion in paragraph 2 have not been amended since, I find it incomprehensible that the
legislative body, which enacted the provisions upon which you rely for your conclusion, contemplated
Monroe COlln~l' Year )()/O C'omprehen-.;i1le Plan.
'. ~
Further. I would point out that by using the teon rlie (.'oJ1lprehensil'e plan, the enactors were clearly
conlcmplating a plan which was in existence at'the time of enacnnent, not a plan which was enacted over
ten years later. Accordingly, granting vested rights to this applicant will place dIe applicant in precisely
the position contemplated by the provisions upon which you rely: compliance with the Comprehensive
Plan of September 15, 1986, as amended, Chapter 9.5 ll/Ionroe COllll/Y Code.
I would also direct your anention to the beginning of *9.5-2(b)( I), which states:
The provisions of this chapter and any
amendment hereto shall not affect the validity
of any lawfully issued and effective permit,
provided that consrruction authorized by such
pcrmit has commenced plioI' to the effective
date of this chapter or any amendment hereto,
and provided that construction continues
WitJlOut interruption until development is
complete, In /he el'en! a huilding permir
expire.\', /hen all jimher del1elopmem shall be
in cOl'~ji)rJl/ance with the requirements of the
comprehen.\'il'e plan,
(emphasis indicates that portion of ordinance
highlighted in your attachments)
It is my opinion dlat tlJis provision applies only to permits in existence prior to Scptcmbl.T IS, 1986 and
would have no application to the facts of thj~ case. Rather, it is my opinion that this provision is a de jure
vesting of rights for pennits in existence Plior to September 15. 1986, By dIe very terms of this provision,
it has no application on any permit, dcvelopment order or agreement issued or entered iuto subsequent to
September 15. 1986, FUl111l~r, whcn construing a stafute (ordinance), one mllst give meaning to aJl of the
words of the provision, One should not extract those words which are convenient while ignoring the
comc'\t oCthe provision. as a whole,
, -- Without belaboring the point. I find tJlat your reliance on ~9.5-1(b)(5), lvlol1roe COlm~v ('ode misplaced as
'wdl. This section slates:
. I
l:.':xcept as provi<.kd in subsecrion (h)( I) and (2)
of this section, all applicarions for development
approval/ifeel I!/ier the dare of adoplion of rhe
Herb Rabin letter
J Lily 3. 1997
Page 3
Monroe County Comprehensi....e Plan and this
chapter shaH be considered for approval under
the. comprehensive pl.Ul amI regulations in
effect at the time of the final decision,
Again, the word ClIrrl!J1l is not within the text of this provision. The fact that Monro/! COllnt}'
( 'o/1/prdwm.,,'/t Plan is capitalized indicates that the provision is referring to a document in existence at
the time of enactment of the provision, Reading sub-section (2) in pari materia with sub-section (5). sub.
section (2) says. in essence, if you have permit prior 10 September 15, 1986, you can complete
de....e1opment under prior regulations unless the permit expires while sub-section (5) says, in essence,
applications filed afrer the effective date must comply with the comprehensive plan.
Dy its very words, sub-section (5) excludes any pennit, which qualifies under sub-seclion (2). I find it
curious that two facially muhlally exclusive provisions can be used to support the same proposition.
To conclude my analysis, it is clear to me dlat the ('oue does not apply to Vested Rights determination
under the /)"111. further, one provision of the Cude cited in your memorandwn would not apply to the
tacts of this case under any circumstances. The granting of Vested Rights requires compliance with the
other,
The foregoing has heen my legal analysis of the issues with which r W:JS confronted, The analysis will be
incorporated in the final order issued ill this cause, At this point, I will wax practical wilh the following
observations and comments being editorial in nature.
rr is a cannon of statutory consOllction rhar laws should be construed to avoid bizarre results. If I 3dopted
the constmction suggested by you, there would likely be several potentially undesintble results, Fir~1, 1
would point out that it has been my experience that most settlement agreements regarding land use maltLTs
"re well thought out and, accordingly, should be respected. Secondly, without having read the Settlement
Agreement, there may be executory provisions required by the State. I would point out that the State is
Tlot a party to these proceedings, Prior to determining that an agreement is void, all parties should have
norice and an opportunity ro be heard 011 rhe matter. This is fundamental due process of law,
Should V\:sreu Rights not he granted to this applicant, there arc potenlial adverse eITeets t()r lhc citizcns of
~vlonroc County, The Settlement Agreement has strict closure and mitigation rC<luiremcnts. If Munroe
County does not honor the Sdt/elllcnt Agrccmt:nl, the applicant would likely ahandon tilt: site leaving the
citizens of r..lonroe County with a hole in the ground to fix at taxpayers. expense. Additionally, tens of
Ihous<!/I(b of dollms ill legal expellses would arise: ill virtually cCTlaill liligation that such un llction would
cause,
. ~
Whik the applicalll a/l(l his predecessor should have obtaincd thc permits al issue, mining anu blasting
pcnnits arc uniquc. By your own testimony. mining operations are subject to a long-tenn plan and the
, annual renewals are ministeri,,1 in nanlfe, You had no substantial argument to that characterization at the
. heming, The annual pennit simply allows the County to pcriouically inspect the development to insure
compliance with (he plan. Since mining operations require a closure plan, it seems that inspections would
accomplish liuh: until dosun:,
I krb Rabin kUer
July 3. 1997
Page J
To apply your construction of the Codl1 to the f.'lcts of this case would be to aI/ow the procedural tail to
wag the suhslantive dog. The rights and obligations set torth in the Settlement Agreement were agreed to
by all parties and must constitute a development order within the meaning of the Code.
Having dctcnnincd that the Monroe COlltl~V Year 20/0 Compre!uJnsil1e Plan stands alone with regard to
the dcrcnninalion of Vested Rights under the Plan, the resolution of the dilemma which you perceive
seems simple. Whatever remedy would apply, had staff been aware that proper permits were not in
existence prior to the adoption of the Plan, exist today as thought the Plan had not been adopted. Ha"ing
had some modesr dealing with after the fact permits, this would seem an appropriate remedy under
Chaprer 9.5 A1ol1roe ('Olmty Code.
Very truly yours,
~/4-/;;~
Randolph W. Sadrler
RWS/dim
Cc: :'vlr, Robelt I-Jerman
Mr, Tim McGarry
Mr. Ross Allistoll
Ms. Patti Hennan
~icholns Mulick. Esquire
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r ATTACHMENT 3
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MONRO~ COUNTY, ..LORlDA,
LAND US! DISTRICT MAP
~~0#Q\1!
N> "'_
c:o ~ATIOH
Cl'A ~"
CF1D ~"""'t
c;r.t ~l.oIoI.."
Oft OIn.....TtaH ,.
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COllnty of MOIlroe
Growth Management Division
2798 Overseas Highway
Suite 400
Marathon, Florida 33050
Voice: (305) 289-2500
FAX: (305) 289-2536
Board of Co un tv Commissioners
Mayor lack London, Dist. 2
Mayor Pro Tern Wilhelmina Harvey, Dist. I
Commissioner Shirley Freeman, Dist. 3
Commissioner Keith Douglass, Dist. 4
Commissioner Mary Kay Reich, Dist. 5
July 21, 1998
Ms. Carol Forthman, Director
Division of Community Planning
Florida Department of Community Affairs
2555 Shumard Oak Blvd.
Tallahassee, FL 32388-2100
and
j Ms. Sandra Walters, Consultant
600 White Street
Suite #5
Key West, Florida 33040
Re: Cudjoe Enterprises, Inc. Settlement Agreement
Dear Ms, Forthman and Ms. Walters:
Please find enclosed a fully executed original of the Settlement Agreement between Monroe County, the Department
of Community Affairs and Cudjoe Enterprises, Inc. Thank you for your cooperation in this matter.
Sincerely,
q-;atLll ~r !fe;C€
Isabel T. Reid, Senior Administrative Assistant
Growth Management Division
fir
Enclosure
cc: James T, Hendrick, County Attorney (w/o enclosure)
Robert L. Herman, Director of Growth Management
Timothy J. McGarry, Director of Planning
Ross Alliston, Director of Environmental Resources
Don Horton, Sr. Director/Building Official
Patti Herman, Sr, Administrator/Assistant Building Official
Dianna Stevenson, Biologist, Lower Keys
Michael McDaniel, Growth Management Administrator, DCA
Rowena Garcia, DCA Field Office, Marathon
Exhibit
€.
-, "'
AGREEMENT
This Agreement is entered into by Cudjoe Enterprises, Inc., a Florida corporation ("Cudjoe
Enterprises"); Monroe County; and the State of Florida, Department of Community Affairs (DCA),
pursuant to Section 380.032(3), Florida Statutes (1997).
RECITATIONS
WHEREAS, Cudjoe Enterprises is the owner and operator of property located in Monroe
County, Florida, which is now, and has been for many years, used for limestone quarrying, commonly
known as the Cudjoe Key Quarry. Cudjoe Enterprises purchased the subject property from CTB, Inc.
("CTB") on December 5, 1994; prior to that time, Tarmac Florida Inc. ("Tarmac") was the mining
operator at the quarry.
WHEREAS, Monroe County issued to Cudjoe Enterprises' predecessor in interest !vIining
and Excavation Permit No. 9010000520, and Blaster and User Permit No. 9010000519 for the
Cudjoe Key Quarry, and issued extensions and renewals for these permits on March 20, 1990.
WHEREAS, DCA filed an appeal of the extension of the permits, following which a
Settlement Agreement was signed on March 21, 1991, placing additional conditions on the
operations.
WHEREAS, DCA, !vfonroe County, and Tarmac Florida, Inc. are signatories to the
Settlement Agreement;
WHEREAS, Cudjoe Enterprises purchased the quarry in 1994, and continued operations
based on the fact that the Settlement Agreement authorized their continued operation of the quarry
as long as conditions of that Agreement were met.
WHEREAS, certain terms and conditions set forth in the Settlement Agreement relating to
the duties and responsibilities of the parties are in need of further clarification;
WHEREAS, Cudjoe Enterprises, !vfonroe County, and the DCA desire to amicably resolve
issues in question now and for the future regarding Cudjoe Enterprises' right to complete the
approved mining and excavation plans for the Cudjoe Key Quarry.
-, '
NOW THEREFORE, in consideration of the premises and the mutual covenants hereinafter
set forth, the parties hereto agree as follows:
I. Quarry Operation
1. Geographic Scope. The geographic scope of this Agreement is defined in Attachment 2
of Exhibit 1.
2. Completion Date. All mining activities and restoration will be complete within 10 years
of the effective date of this Agreement.
3-. Zoning. All uses other than rockmining and related activities, present and future, of the
subject property will be consistent with the zoning in effect at the time applications for any such use
are submitted to Monroe County.
4. Dimensions. Due to a voluntary decrease in the desired area to mine, the final excavation
size will be no larger than 33.5 acres (Attachment 2 of Exhibit 1), representing a reduction of7.8
acres from that previously pennitted. Correspondingly, property line setbacks will be modified to
those shown on Attachment 2 of Exhibit 1. The depth of excavation will not exceed 60 feet. "
5. Blasting. Cudjoe Enterprises will conduct no blasting operations without first acquiring
all applicable pennits from local, State or federal agencies.
6. Renewal of Permits. Cudjoe Enterprises will maintain and renew all required County
pennits annually during the term of this agreement.
II. Restoration and Reclamation
1. Cudjoe Enterprises has agreed to revise the restoration and reclamation plan incorporated
into the 1991 Settlement Agreement.
2. The revised restoration plan (Exhibit 1) will involve creation of more than 8.6 acres of
additional endangered species habitat through removal of existing berms and fill to surrounding
wetland elevation.
3. Special Conditions. The ACOE has imposed special conditions upon the pending permit
renewal, in coordination with wildlife agencies, which link restoration performance standards to a
specific timetable related to the issuance date of the regulatory permits. Cudjoe Enterprises is in
agreement with these conditions, which are in addition to the berm planting plan required by the 1991
DCA Settlement Agreement (Attachment 5 of Exhibit 1). Therefore, these conditions are
incorporated in the restoration plan (Attachment 3 of Exhibit 1).
2
III. Miscellaneous
1. Caveat. The parties acknowledge that they have entered into this Agreement solely in the
'spirit of compromise. This Agreement shall not be deemed to constitute a waiver of any party's
position with regard to the proper interpretation of the Monroe County Code, and shall not be given
precedencial effect with regard to any other permit issued by Monroe County.
2. Duplicate Originals. This Settlement Agreement may be executed in any number of
originals, all of which evidence one Agreement, and only one of which need be produced for any
purpose.
3. Enforcement. This Agreement may be enforced by any party as provided in Chapter 380,
Florida Statutes, or as otherwise allowed by law. In the event of breach of this Agreement, or if this
Agreement is based upon materially inaccurate information, the Department may tenninate this
Agreement or file suit to enforce this Agreement as provided in Sections 380.11, Florida Statutes,
including a suit to enjoin all development.
4. Scope of Authoritv. This Agreement affects the rights and obligations of the parties under
Chapter 380, Florida Statutes, authorized by thiS Agreement.
5. Entirety of Agreement. The parties further agree that this Settlement Agreement contains
the entire and exclusive understanding and Agreement among the parties and may not be modified
in any manner except by an instrument in writing and signed by the parties.
6. Binding Effect: Recordation of Agreement. This Agreement is intended to and shall create
a covenant running with the land, and shall be binding on the parties, their heirs, successors and
assigns. Within ten (10) days after the signing of the Agreement by all parties, Cudjoe Enterprises
shall record this Agreement in the public records of Monroe County, Florida, and shall promptly
provide proof of recordation to Monroe County and the Department, including the official records
book and page where this Agreement is recorded. Proof of recordation shall be furnished by hand
delivery or U.S. rvfail, postage prepaid, to Monroe County by directing same to the Monroe County
Planning Director, Growth Management Division, Marathon Regional Service Center, 2798 Overseas
Highway, Suite 400, Marathon, Florida 33050; and to the Department by directing same to the
Growth Management Administrator, Florida Department of Community Affairs, 2555 Shumard Oak
Boulevard, Tallahassee, Florida 32399-2100, with a copy to the DCA Keys Field Office, Marathon
Regional Service Center, 2796 Overseas Highway, Suite 212, Marathon, FL 33050.
3
7. Release: Costs and A,torneys Fees. Each party hereto release.::; the other from any and all
claims or demands arising out of the subject Agreement. Each party bears its own costs and attorney
. fees incurred in connection with this proceeding.
8. Effective Date. The effective date of this Agreement is that date when the last party
hereto signs a counterpart of this Agreement. However, this agreement shall not be effective unless
all parties execute within 90 days of the first signature.
IN WI1NESS WHEREOF, the parties have duly executed this Agreement and have agreed
to be bound by its terms.
CUDJOE ENTERPRISES, INC.
By:
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Ron McPhall, President
Date:s-/7-'i(/
FLORIDA DEPARTMENT OF COMJ\1UNITY AFFAIRS
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Carol Forthman, Director
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ATTEST: DANNY L KOLHAGE, QERK
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DEPUTYCLE~
MONROE COUNTY
By), 2J~' :::;,':s~te: 7-/6 -If7cf?
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APPROVED AS TO FORM
1 AND LEOAl. sumdmNCY 1
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EXHIBIT 1
May 12, 1998
CUDJOE ENTERPRISES, INC.
Restoration Plan for Cudjoe Key Quarry
The following restoration pian was developed through coordination with the following representatives
of public agencies:
. Steve Klett, U.S. Fish and Wildlife Service (USFWS)
. Charles Schnepel, U.S. Army Corps of Engineers (ACOE)
. Phil Frank, Florida Game and Fresh Water Fish Commission (FGFWFC)
. Randy Grau, Florida Department of Environmental Protection (DEP)
. Rowena Garcia, Florida Department of Community Affairs (DCA)
Location and Site History
The Cudjoe Key Quarry is located to the north of U.S. Highway 1 on Cudjoe Key. The property is
surrounded by wetlands on the north, south and west, and bordered by Blimp Road to the east. The
quarry has been actively mined for limestone rock for many years.
Wetland permits were issued by the Florida Department of Environmental Regulation (now
Protection) in 1998 and the ACOE in 1989. Attachment 1 consists of Figure 2 in these permits, and
shows the final excavation size approved at that time. It also shows required restoration work, which
included removal of berms along the north and west property lines and two berm areas extending
between the road right-of-way and the pit on the east, for the purpose of restoring full tidal
connection to the wetlands within these berms and thereby enhancing the wildlife habitat value.
All of this work was completed in accordance with the permits. One problem, however, was that the
permits did not allow removal of mangroves, and, therefore, it was necessary for remnants of the
berms to be left in place, which impedes tidal flow and reduces the effectiveness for habitat
restoration.
Cudjoe Enterprises, Inc. purchased the property in late 1994. The DEP and ACOE permits had
expired in 1993 and 1994, respectively, and Cudjoe Enterprises retained Sandra Walters, Consultant
(SW) to apply for new permits for expansion of the quarry. Several meetings and site visits with the
USFWS and FGFWFC were conducted, and resulted in a revised site plan which includes
substantially more habitat restoration than permitted previously.
Attachment 2 consists of Figure 4 in the new permit sketches, which shows both the existing
conditions and proposed changes to the site. The existing deep mine area covers a total of 18.411
acres. There is an existing fill pad which surrounds the deep mine, from which drag lines remove
material from the excavation, and berms presently separate the mine from surrounding wetlands.
The final mine configuration would include excavation of two existing wetland areas onsite contained
within the existing berm, located along the southwest and north boundaries. Both of these areas were
scraped down during earlier mining operations and now possess little to no habitat value, and consist
of approximately 4.187 acres. The majority of the existing fill pad around the deep mine area,
conslstmg of 10.916 acres, which is completely scarified, is also included in the new mine
configuration. This results in a final total deep mining area of 33.514 acres. The earlier permits
approved a final deep mining area of 41.3 acres; therefore, the new plan is a 7.8 acre reduction from
that previously permitted.
Restoration Plan
Two areas which were designated in the previous DEP and ACOE permits for mining will now be
included in restoration plans for the site. One is located in the approximate center of the western
boundary ofthe property, and the second is along the entire southern boundary (excluding a section
of berm already removed as part of the earlier restoration work). The remainder of the mitigation
project consists of removal of an upland berm along the southeast boundary. In addition, the two
berms at the north of the property are located approximately 50 feet further south than specified by
the original permits, and they will remain in place, resulting in a small amount of additional mitigation
acreage from that originally calculated. The total additional restoration, beyond that provided for in
the earlier permits, is 8.654 acres.
The specific fashion in which this restoration is accomplished is defined in Attachment 3. These
conditions are derived from conditions developed for the pending ACOE permit, and are modified
to provide for review and approval of certain terms by DCA and Monroe County, as signators to this
settlement agreement. These conditions provide for a specific compliance schedule for restoration
linked either with execution of this settlement agreement or acquisition of regulatory permits,
including a final survey and preparation and recording of a conservation easement for all lands within
restoration areas. The conditions also provide for removal of mangroves and other wetland plants
where they encroach on existing fill substrate to be restored to surrounding wetland elevations; clean
up of the site; removal of all exotic vegetation on the property; and installation of additional culverts
under the access road to the quarry,
The final berm around the deep mine will include a littoral zone, as depicted in Attachment 4 (Figure
6 of new permit sketches), to provide some submerged habitat within the rockmine itself, and also
to provide a shelfas a safety measure for wildlife or people to climb out of the mine. This safety shelf
is also maintained throughout the mining process.
During a March 31, 1998 site visit with biologists Rowena Garcia (DCA) and Phil Frank (FGFGWC),
a concern was raised regarding lowering the proposed berm height to reduce the likelihood of
invasion of exotic vegetation once mining is complete. Consultation with the engineer for the project,
Paul Larsen, P.E., finds that reducing the berm elevation from 3 feet to 2 feet will still result in a 0.41
foot buffer for retention of the 25 year 3 day storm event, as required by the South Florida Water
Management District MSSW Permit Manual. Therefore, this change will be made in the design
before submittal to the regulatory agencies (see note on Attachment 4).
An agreement was executed with DCA and Monroe County in 1991, in which planting of vegetation
along the berm is required following closure of quarry operations. An engineering drawing showing
how this would be implemented was submitted by the operator at the time, Tarmac, Inc., and was
incorporated into the County records (Attachment 5). This plan calls for planting 170 native trees
Cudjoe Key Quarry Restoration Plan - Page 2
at 10 foot centers along the western berm and 85 native trees at 10 foot centers along the southern
berm. On the March 31, 1998 site visit described above. it was agreed that the planting of native
trees along the berm would be continued along the eastern berm, to provide a visual buffer from the
adjacent roadway. Therefore, the following planting plan is incorporated in the restoration plan for
the Cudjoe Key Quarry:
Boundary Length (in feet) # of Trees
West 1000 100
South - 835 85
East 2,170 217
TOTAL 402
Trees planted will be no smaller than 3 feet in height, and will consist of Buttonwood (Cococarpus
erecta) or Seagrape (Coccoloba uvifera) on the west and south berms. Jamaica dogwood (Piscidia
piscipula), Catsclaw (Pithecellobium unguis-cati), and Blackbead (Pithecellobium guadalupense)
are added to the list of tree species which may be planted on the east berm.
The special conditions also provide for possible eventual complete removal of the berm to
surrounding wetland elevations, or continued removal of exotic vegetation, following cessation of
excavation or any other use of the property.
Cudjoe Key Quarry Restoration Plan - Page 3
A TT ACHMENT LIST
Attachment
Description/Significance
1
Figure 2 from 1988 DEP permit and 1989 ACOE permit, showing previously
approved excavation boundaries and restoration
2
Figure 4 from new permit sketches, showing new excavation boundaries and
restoration
3
Special Conditions to Restoration Plan
4
Figure 6 from new permit sketches, showing cross section of final berm
and littoral shelf around excavation
5
Planting plan from 1991 DCA settlement agreement
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ATTACHMENT 3
Restoration Plans for Cudjoe Key Quarry
SPECIAL CONDITIONS
1. Cudjoe Enterprises, with the assistance of the Department of Community Affairs and Florida
Game and Fresh Water Fish Commission, will work with owners of adjacent property extending
from the southwest corner of the parcel which contains cement debris and a fill road, to obtain
written permission for removal of these materials and restoration of the area to surrounding
wetland elevations.
(a) Within 30 days of the execution of this settlement agreement, Cudjoe Enterprises will provide
a letter to the following two owners of property within the Unrecorded Plat of Sawyer
Property on Cudjoe Key, which defines the location, scope of work, time frame within which
the work will be accomplished, and any other terms necessary regarding liability, etc., for
execution by these owners to allow removal of the debris and fill road from the wetlands:
· Ms. Janet Cates, owner oflots N, M, L and I
· Associated Marine Institutes, Inc., owner oflots J and K
(b) If, within 120 days of the provision of the letter to the adjacent property owners, the parties
are unable to come to terms regarding permission for this work, then the restoration plan as
provided for on Attachment 2 of Exhibit 1 will apply. However, if at any time prior to
expiration of the 120 day period the adjacent property owners affirmatively refuse to grant
permission for the removal of the debris and fill road in the adjacent wetlands, then the
restoration described on Attachment 2 of Exhibit 1 will apply.
(c) If the adjacent property owners do execute the permission letter within 120 days, then the
restoration plan will be modified to substitute removal of the debris and fill road, as described
in I. Above, for removal of the vegetated berm along Blimp Road, as described in 6(a) below.
In addition, replanting of the eastern berm will be removed from the restoration plan, as it will
no longer be necessary because existing visual screening from the road will be left in place.
2. Cudjoe Enterprises will provide a survey, not more than 60 days after receipt of all State and
Federal regulatory permits, of the mitigation area depicted on the Plan View of Existing
Conditions signed on March 10, 1997 by Mr. Paul Larsen and representing 8.5 acres more or less
(Attachment 3, Figure 4), or as modified by 1. above.
3. Cudjoe Enterprises will provide, within 60 days from the date of regulatory permit issuance, a
legally sufficient conservation easement to ensure that the identified wetland areas will remain in
their natural state in perpetuity. The conservation easement will encompass approximately 8.5
acres of natural and restored wetlands. These areas will not be disturbed whatsoever by dredging,
filling, land clearing, agricultural activities, planting, or other construction work. The permittee
agrees that the only future utilization of the preserved area in question will be as a purely natural
area.
(a) Cudjoe Enterprises will prepare the proposed conservation easement, including a legal
description, to include scale drawings, of the area in question and furnish the same to the legal
1
counsels ofthe Department of Community Affairs and Monroe County, for legal review and
approval.
(b) Within 30 days of approval by the Department of Community Affairs and Monroe County
of the proposed easement,Cudjoe Enterprises will record the easement in the public records
of Monroe County, Florida. A certified copy of the recording, plat, and verification of
acceptance from the grantee will be forwarded to the Department of Community Affairs and
Monroe County. The recording and notification to the Department must be made prior to the
discharge of any additional fill authorized under Federal or State permits.
4. Cudjoe Enterprises will remove berms, roads and disturbed areas within the mitigation area to
surrounding wetland elevations, as depicted in Attachment 3, Figure 4, for the southern edge of
the borrow pit and the central northwestern portion, consisting of 5.717 acres more or less, . or
as modified by 1. above, within a period of six months of receipt of all regulatory permits.
5. Cudjoe Enterprises will construct a containment berm along the south side of the proposed rock
mine wide enough to accommodate heavy equipment. This berm will be completed prior to
expansion of mining operations.
6. Cudjoe Enterprises will enhance the existing wetland along Blimp Road south of the entrance
road into the rock mine and improve water circulation as follows:
(a) The vegetated berm along the west side of this wetland, consisting of2.937 acres more or
less, will be removed and the elevation returned to the surrounding wetland elevations within
a two (2) year period of receipt of all regulatory permits.
(b) Six (6) twelve inch culverts will be placed under the entrance road into the rock mine as
depicted on drawing entitled Location and Detail of Culverts Under Entrance Road, signed
and sealed March 10, 1997 by Paul Larsen (Attachment 3, Figure 6), prior to expansion of
mining operations.
(c) All fill will be removed to wetland elevations, which may include removal of wetland plants
which have encroached into the existing fill substrate.
7. A clean mining operation will be maintained to discourage the establishment of a black rat
population. Existing piles oftrash will be removed within 90 days of execution of this settlement
agreement, in areas where no regulatory permits are required. In areas where permits are
required, these materials will be removed within 90 days of permit acquisition. The site will not
be used for storage, except for mining material and functional mining equipment used on the site.
However, nothing in these special conditions will prevent Cudjoe Enterprises from applying for
permits to store other materials allowed under applicable zoning.
8. All exotic vegetation, to include Australian pine and Brazilian pepper, will be removed from areassnot proposed for mining within 30 days of acquisition of applicable permits. The site shall be
maintained exotic-free over the life of the project.
2
9. One of the following three alternatives must be chosen by Cudjoe Enterprises and implemented
within two years after the expiration of the 10-year life of the quarry, or closure of the mining
operation, whichever is earlier.
(a) The berm surrounding the deep excavation will be removed to surrounding wetland
elevations, if all regulatory permits can be acquired. In this case, the berm planting plan
described in the restoration plan will not be required.
(b) A new permitted use for the property will be in place, which will also provide for continued
removal of exotic vegetation on the property.
(c) A trust fund in the amount of $10,000 will be established for continued removal of exotic
vegetation, with or in favor of an agency or organization acceptable to the Department that
is willing to undertake the task of removal.
3
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STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
"Helping Floridians create safe, vibrant, sustainable communities"
LAWTON CHILES
Governor
JAMES F. MURLEY
Secretary
Phone: (305) 289-2402
Date: July 28, 1998
Address:
Finley Ricard
858 Caribbean Drive East
Summerland ~ey, FL 33042
RE: Permit #: 971-1186 Audit #: 2028006
Issued to: Cudjoe Enterprises, Inc.
For: after the fact excavation - Department of Environmental Protection permits are
required. Please contact Randy Grau with DEP at 305-289-2311.
The Department Field Office has received your request for a letter stating that the
Department will not appeal the above permit.
The Department will not appeal this building permit pursuant to Section 380.07, Florida
Statutes, While the Department will not appeal this development order under its statutory
authority, the development order is still subject to the local administrative appeal provisions
of Section 9.5-521, Monroe County Code. Accordingly, please provide the Monroe County
Building Department with a copy of this letter in order to determine when you may begin
construction.
This letter is not intended to constitute, and shall not be construed as constituting, a
verification of compliance with the Monroe County Comprehensive Plan and Land
Development Regulations, and shall not be relied upon as a precedent or a waiver of rights
regarding any other development order issued by Monroe County.
Sincerely,
7'/
Ty Symroski
Planning Manager
cc: Randy Grau, DEP
flORIDA KEYS
As~ of Critical Slale Concern Field Office
2796 Oveneas Highway, Suite 212
Mmlhoo, Florida lJ050.2227
2555 SHUMARD OAK BOULEVARD. TALLAHASSEE, FLORIDA 32399-2100
Phone: 850.488.8466/Suncom 278.8466 FAX: 8S0.921.0781/Suneom 291.0781
I n tern e I add res 5: h lip :llwww.slale.fl.us/eomaH/dea. h 1m I
GREIN SWAMP
Asea of Critical State Concern Field Offic
155 East Summerlin
Barlow, Florida 33830.4641
. Exhibit
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SOUTH flORIDA RECOVERY OFFICE
P,O, Box 4022
8600 NW, J6Ih Street
Miami, Florida ]]159-4022
MONROE COUNTY BUILDING DEPARTMENT
BJ.JILDING PERMIT '
Dale Applied:
Permit Type:
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BY
BUILDING DEPARTMENT
PERMITTEE
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::eRMIT NUMBER:
,~RMIT TYPE:
!~OPERTY ADDRESS:
ERS NAME:
9710001166
BIOLOGICAL - REVISED
CUDJOE KEY RlJ, ClJDJOB KEY
eUDJOE ENTERPRISES, INC.
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I. REQUIRED THIS PERMIT IS GOOD FOR ONE
..-" YEAR FROM THE EFFECTIVE DATE OF THE
H' PERMIT THE AFTER THE FACT PERMI'l'
~; INCLUDES EXCAV~~ION FROM 12/94 THRU
Ih 5/97
.", DCA EFFECTIVE DATE: 10/16/97 ,
..~ PER 9/19/97 MEMO FROM H.RABIN THIS PER-
MIT IS TOLLED UNTIL VESTED RIGHTS IS
APPROVED BY Bec - HO WORK TO BE STARTED
DCA SETTLEMENT AGREBMENT DAT~p 7/16/98
pgRMI'r TO BE REISSUED ON 7/'AflI/98 ALL ___
CONDlTIONS OF SETTLEMEm' AGREEMENT MUST
BE HONORED - DCA BFFECTIVE DATE 9/12/98
THIS PERMIT WILL BE GOOD FOR 1 YE1.R FROM
THE EFFECTIVE DATE OF THE DCA, WAIVER
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DATE:
7/24/98
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July 15, 1998
September 2, 1998
September 9,1998
September 21, 1998
September 14, 1998
October 5, 1998
October 5, 1998
October 12, 1998
October 19,1998
October 20, 1998
October 20, 1998
October 20, 1998
October 21, 1998
October 21, 1998
October 22,1998
November 10,1998
November 13, 1998
November 13, 1998
December 9, 1998
February 10, 1999
February 25, 1999
March 5, 1999
March 17, 1998
March 19, 1999
March 22, 1999
March 24,1999
Received search rings in South Florida.
Searched Cudjoe Key, Summer1and Key, Ramrod Key, Grassy Key
Met with Chad Meadows, Tim McGarry at Planning Office to discuss
permitted Zoning for towers
Received a letter from Tim McGarry stating that a possible location at
Grassy Key would not work
Submitted Cudjoe key site to IC&E
Made offer to Ron Mcphail for Cudjoe Enterprises Mine site.
Stopped by Chad Meadow's office to discuss project, he assured me at
this meeting that my project was doable.
Monroe County gives me a copy of their Co-location agreement.
Met with Ron McPhail to discuss contracts.
Met with Chad Meadows to discuss plausibility of project. His response
was for me not to worry that I would be able to build my tower,
Picked up mitigation Info from Sandy Walters.
Contracted with Fred Hildebrant to survey property.
Met with DCA to discuss Project, Rowina Garcia, stated that she would
prefer a tower at that location rather than a mine.
Contracted with Bob Smith to do Environmental Work.
Received FAA Analysis. Favorable determination for 970'AGL.
Monroe County e-mailed me a copy of CO-location Agreement
Geological analysis
Meeting with Chad Meadows and Eddie Bie
In this meeting Chad gave me a letter stating that industrial zoned
areas were ok for towers, he also stated that there would be no
horizontal separation requirements.
Gave Co-location agreement to County
Omnipoint Requests co-location on our proposed tower
Final determination from FAA
Chad approved contact list
Pre-application
change ordinance
County suggests that we move pre-application
ice changes pre app
Exhibit
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Exhibit
Apr-07-99 03:33P
P.Ol
Sounds of Ser"ice Radio} Inc.
Serving the Florida Keys For Over 30 Years
Eddie Bie - President
MONROE COUNTY
8649001S Hwy.
Plantation Key, FL
P.O. Box 1572
Tavernier. FL 33770
305-517-2587 '
305-517'2796 (Fax)
MAIN OFFICE
81 N. Gulf Blvd.
P.O. Box 987
Indian ROCkS Beach, Florida 33785
727-593-7453
727-593-0301 (Fax)
April?, 1999
Mr. Mark Baker
Inuustrial Communications
Sent Via Fax:
Dear Mark,
In the mccting we had with Chad Meadows on Novemher 1 J. 1998 aL the Monroe County
Government Center in Marathon, YOll discussed the site on Cudjoe Key which yOu proposed LO
buy as a tower site jf a lower could be constlucted there under Munroe Coullly Regulations.
Y()U were cOllcemetl about proposed regulations and wanted to make sure that you did
not buy a pruperty that you would be prevented from using,
AL Lhat point. Chad Meadows did assure you, that the proposed regulations did not
re<.luire a separation n'om other existing lowers and that the Cudjoe Key site would he entirely
within the proposed regulations as a pcnnissihle tower site. There wns nothing to prevent it. He
also told you (hat industrial zoning on that site was the was the preferred zoning under the
regulations, and that you wuuld be able to build your tower.
I am sony [0 hear about your troubles.
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AGREEMENT
MONRO& COUNTY
OFFICIAL RECORDS
This Agreement is entered into by Frank Dirico (Mr. Dirico) and the State of Florida,
Department of Community Affairs (DCA), pursuant to Section 380.032(3), Florida Statutes
(1999),
RECITATIONS
WHEREAS, Mr. Dirico purchased the subject property commonly known as the Cudjoe
Key Quarry, located in Monroe County, Florida which has for many years been used for limestone
quarrying, from Cudjoe Enterprises, Inc. ("Cudjoe Enterprises") on January 5, 1999. Cudjoe
Enterprises purchased the subject property from CTB, Inc. on December 5, 1994; prior to that
time, eTB, Inc. was the owner and Tarmac Florida Inc. was the operator at the quarry, and
WHEREAS, DCA, Monroe County ("the County), and Cudjoe Enterprises signed a
development agreement on July 16, 1998 for the purpose of clarifYing terms and conditions in an
earlier Development Agreement between Tarmac, Monroe County and DCA signed on March 21,
1991, and to resolve issues now and for the future regarding Cudjoe Enterprises' right to continue
approved mining and excavation plans for the Cudjoe Key Quarry, and
WHEREAS, the 1998 settlement agreement specifies implementation of extensive
environmental mitigation measures prior to expansion of the quarry on the subject property,
including creation of almost eight (8) acres of additional endangered species habitat through
removal of existing berms and fill to surrounding wetland elevation, and
WHEREAS, Monroe County issued excavation permit no, 971-1188 to Cudjoe
Enterprises on July 24, 1998, which allows limestone quarrying to continue on the subject
property, and
WHEREAS, Mr. Dirico has purchased the subject property to install a communications
facility, rather than to continue the historic quarry operations, and
WHEREAS, the completion of installation of the communications facility will provide a
"passive" use for the property which will have much less impact on surrounding natural and
inhabited areas than would the continuation of limestone mining activities, and
to ""I
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WHEREAS, Mr. Dirico proposes to incorporate the communications facility into the
settlement agreement,
WHEREAS, the northwest guy wire anchors for the communications facility must be
located within an area that has been designated as red-flagged wetlands and deemed unbuildable
based on the KEYWEP model adopted by the County and DCA;
WHEREAS, the 1991 and subsequent 1998 settlement agreements allowed mining within
areas designated as open water which are also deemed unbuildable based on the KEYWEP model;
WHEREAS, the former agreements vest development impacts within environmentally
sensitive areas now otherwise deemed unbuildable;
WHEREAS, this agreement reduces impacts to unbuildable areas and substantially
increases mitigation requirements as compared to the former agreement;
WHEREAS, Section 380,032, F.S" authorizes the Department to enter into agreements
for the purpose of effectuating the provisions and purposes of.Chapter 380, F.S., and the
Department has determined that this agreement meets that criteria; and
NOW THEREFORE, in consideration of the mutual promises and undertakings herein,
the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
I. Use of Site
L Recitals. The foregoing recitals are incorporated herein and form a material part of
this agreement.
2. Scope of Agreement. The Applicant shall seek Minor Conditional Use approval for
the project, consistent with the requirements of the Monroe County Code as applied by Monroe
County. This agreement shall not be construed to grant development approval to the project.
Rather, this agreement shall be construed to define wetland impacts, wetland and property line
setbacks, and required mitigation and restoration, as described in Exhibit 1, which shall apply if
Monroe County approves the conditional use. Restoration shall occur according to the schedule
in Attachment 5. However, all restoration shall be completed within 2 years of facility
installation.
3. Geographic Scope. The geographic scope of this Agreement is defined in Attachment
3 of Exhibit 1_
4 Zoning, All uses other than mining, and the communications facility and related
activities, present and future, of the subject property will be consistent with the zoning in effect at
the time applications for any such use are submitted to Monroe County.
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5, Dimensions. The total impact area is being voluntarily reduced approximately an
additional 2.4 acres from that committed to in the 1998 settlement agreement. Correspondingly,
the project impact area will be modified as shown in Exhibit 1, Attachment 4, revised Figure 4.
6. Renewal of Permits. Mr, Dirico will maintain and renew all required County permits
during the term of this agreement.
II. Restoration and Reclamation
1. Mr. Dirico has agreed to revise the restoration and reclamation plan incorporated into
the 1998 Settlement Agreement.
2. The revised restoration plan (Exhibit 1) will involve creation of approximately 10.325
acres of additional endangered species habitat through removal of existing berms and fill to
surrounding wetland elevation.
3. Special Conditions. The 1998 settlement agreement imposes special conditions upon
the property which link restoration performance standards to a spes~fic timetable related to the
issuance of regulatory permits, and this schedule is incorporated in both the 1999 DEP permit and
ACOE permit. Mr. Dirico is in agreement with these conditions; therefore, they are incorporated
in the restoration plan (Attachment 5 of Exhibit 1).
ill. Miscellaneous
1. Caveat. The parties acknowledge that they have entered into this Agreement solely in
the spirit of compromise. This Agreement shall not be deemed to constitute a waiver of any
party's position with regard to the proper interpretation of the Monroe County Code, and shall
not be given precedencial effect with regard to any other permit issued by Monroe County,
2. Duplicate Originals. This Settlement Agreement may be executed in any number of
originals, all of which evidence one Agreement, and only one of which need be produced for any
purpose.
3, Enforcement. This Agreement may be enforced by any party as provided in Chapter
380, Florida Statutes, or as otherwise allowed by law. In the event of breach of this Agreement
by Mr. Dirico of any of the material covenants or provisions hereof and Mr, Dirico's failure to
cure any breach of any other provision of the Agreement after ninety days written notice, the
Department may terminate this Agreement or file suit to enforce this Agreement as provided in
Sections 380.11, Florida Statutes, including a suit to enjoin all development contemplated
hereunder, If any provision of this Agreement is invalid or unenforceable with respect to any
party, the remainder of this Agreement or the application of such provision to persons other than
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those as to whom it is held invalid or unenforceable, will not be affected and each provision of this
Agreement will be valid and enforceable to the fullest extent permitted by law.
4, Scope of Authority. This Agreement affects the rights and obligations of the parties
under Chapter 380, Florida Statutes, authorized by this Agreement.
5. Entirety of Agreement. The parties further agree that this Settlement Agreement
contains the entire and exclusive understanding and Agreement among the parties and may not be
modified in any manner except by an instrument in writing and signed by the parties.
6. Binding Effect: Recordation of Agreement. This Agreement is intended to and shall
create a covenant running with the land, and shall be binding on the parties, their heirs, successors
and assigns. Within ten (10) days after the signing of the Agreement by all parties, Mr. Dirico
shall record this Agreement in the public records of Monroe County, Florida, and shall promptly
provide proof of recordation to Monroe County and the Department, including the official records
book and page where this Agreement is recorded. Proof of recordation shall be furnished by hand
delivery or U.S. Mail, postage prepaid, to Monroe County directed to the Monroe County
Planning Director, Growth Management Division, Marathon Regional Service Center, 2798
Overseas Highway, Suite 400, Marathon, Florida 33050; and to the Department directed to the
Growth Management Administrator, Florida Department of Community Affairs, 2555 Shumard
Oak Boulevard, Tallahassee, Florida 32399-2100, with a copy to the DCA Keys Field Office,
Marathon Regional Service Center, 2796 Overseas Highway, Suite 212, Marathon, FL 33050.
7. Release: Costs and Attorneys Fees. Each party hereto releases the other from any and
all claims or demands arising out of the subject Agreement. Each party agrees to bear its own
costs and attorney fees incurred in connection with this proceeding.
8. Effective Date. This agreement shall not be effective unless all parties execute within
90 days of the first signature. The effective date of this Agreement is that date when the last party
hereto signs a counterpart of this Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement and have
agreed to be bound by its terms.
By:
Date:
~~V_~ M.G.A08ENTHAL
~A~ COMMISSION#CC660218
~ :!C EXPIRES JUN 10, 2000
~ "# 8OHO!D THftU
OF f\) ATLANTIC BONDING CO., INC.
Mark aker, power of attorney for Frank Dirico
Notary 0 r~
My Commission Expires:
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FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS
By:
Date: 1;2-& - 99
Notary
My Commission Expires:
P2.E.P~Et> '1!>>'1 :
'SAt..J be.A WA\..."T E.2.s.
:SA"n:~~A. WA\...TERs CO~S\,)\...""^NT!.
4I-:r.~~ Beth A Frost
~~( ):j MY COMMISSION # CC884492 EXPIRES
~~i' . ..,0,' March I, 2003
...",.9'f.,i~8.'" BONDED THRU TROY FAIN INSURANC~ INC.
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EXHIBIT 1
FRANK DIRIeO
Restoration Plan for Cudjoe Key Quarry
The following restoration plan was developed through coordination with the following
representatives of public agencies:
· Steve Klett, Jeanette Gallihugh, and Phil Frank, U.S. Fish and Wildlife Service (USFWS)
· Charles Schnepel, U.S, Army Corps of Engineers (ACOE)
· Rowena Garcia" Florida Fish and Game Conservation Commission (FFGCC)
· Randy Grau & Ed Barham, Florida Department of Environmental Protection (DEP)
· Ken Metcalf, Florida Department of Community Affairs (DCA)
· Ed Koconis, Monroe County
Location and Site History
The Cudjoe Key Quarry is a parcel of land consisting of approximately sixty-two (62) acres
located to the north of U.S. Highway 1 on Cudjoe Key, The property is surrounded by wetlands
on the north, south and west, and bordered by Blimp Road to the east. The quarry has been
actively mined for limestone rock for many years.
Wetland permits were issued by the Florida Department of Environmental Regulation (now
Florida Department of Environmental Protection, DEP) in 1988 and the ACOE in 1989.
Attachment 1 consists of Figure 2 in these permits, and shows the scope of excavation approved
at that time, It also shows the required restoration work, which included removal of berms along
the north and west property lines and two (2) berm areas extending between the road right-of-
way and the pit on the east. This restoration work was for the purpose of restoring full tidal
connection to the wetlands within these berms and thereby enhancing the wildlife habitat value.
All of this work was c:.Jmpleted in accordance with the permits. One problem, however, was that
the permits did not allow removal of mangroves, and, therefore, it was necessary for remnants of
the berms to be left in place. These remaining berm remnants impede tidal flow and reduce the
effectiveness the intended habitat restoration.
Cudjoe Enterprises, Inc. purchased the property in late 1994, The DEP and ACOE permits had
expired in 1993 and 1994, respectively, and Cudjoe Enterprises retained Sandra Walters
Consultants (SW) to apply for new permits for expansion of the quarry. Several meetings and site
visits with the USFWS and FFGCC were conducted, and resulted in a revised site plan which
includes substantially more habitat restoration than permitted previously.
Frank Dirico (Mr, Dirico) purchased the property on January 5, 1999, for the purpose of
constructing a wireless communications facility instead of continuing the rockmining activities. As
there was a moratorium in Monroe County on new wireless communications facilities at that time,
pending completion of a new County ordinance governing these facilities, Mr. Dirico chose to
proceed with applications for the original mining plan on the property, with the goal of
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incorporating the communications facility into the overall site plan and mitigation actIvIties.
Therefore, Mr. Dirico authorized the previous owner of the property, Cudjoe Enterprises, Inc., to
submit applications to the DEP and ACOE. Cudjoe Enterprises continued to retain Sandra
Walters Consultants for this purpose, and applications were filed in January 1999. DEP issued a
permit for the project on April 12, 1999, and the ACOE issued a permit on July 26, 1999.
Attachment 2 consists of Figure 3 in the 1999 DEP permit sketches, which shows the existing
conditions onsite; and Attachment 3 consists of Figure 4 in the 1999 DEP permit sketches, which
shows the changes to the site for mining purposes, The existing deep mine area covers a total of
18.411 acres. There is an existing fill pad which surrounds the deep mine, from which draglines
remove material from the excavation, and berms presently separate the mine from surrounding
wetlands,
The final configuration of the rockminingoperation permitted by the DEP and ACOE would
include excavation of two (2) existing wetland areas onsite contained within the existing berm,
located along the southwest and north boundaries. Both of these areas were scraped down during
earlier mining operations and now possess little to no habitat value, and consist of approximately
4.187 acres. The majority of the existing fill pad around the deep mine area, consisting of 10,916
acres, which is completely scarified, is also included in the new mine configuration. This results in
a final total deep mining area of 33.514 acres. The earlier permits approved a final deep mining
area of 41.3 acres; therefore, the plan depicted in Attachment 3 is a 7.8 acre reduction from that
previously permitted.
Mr, Dirico's wireless communications facility changes the site plan as shown in Attachment 4,
which is a revised versi0n of Figure 4 in the 1999 DEP permit sketches. The antenna-bearing
tower would be located on the berm between the two (2) existing deep mine areas, with three (3)
sets of guY wires extending to the east towards the entrance road, the south into the barren scrape
down area, and the north just above WEZ #2. The tower foundation and support building will be
built at an elevation of twelve (12) feet, exceeding the base flood elevation for the site. The
southwest barren scrape down area will be permanently filled and will serve as a staging area for
tower installation, as well as providing land for helicopter access to the property.
Restoration Plan
The 1999 DEP and ACOE permits designate for restoration two (2) areas that were included in
the previous DEP and ACOE permits for mining. One is located in the approximate center of the
western boundary of the property, and is designated WEZ #2 on Attachment 3; the second is
along the entire southern boundary (excluding a section of berm already removed as part of the
earlier restoration work, and is designated WEZ #1 on Attachment 3).
The entire property has been surveyed, as required by the existing agreement and permits, and
conservation easements for WEZ #1 and #2 are presently under review by DCA, the County and
the ACOE, Upon approval, the easements will be recorded in the public records of Monroe
County and the restoration work will be conducted.
Cudjoe Key Quarry Restoration Plan - Page 2
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A fill road extending into wetlands off the southwest tip of the property (designated Wetland
Restoration Zone on Attachment 3) has already been removed to surrounding wetland elevation
under the existing permits, restoring normal water circulation to many acres of wetlands. The two
berms at the north of the property are located a short distance further south than specified by the
original permits, resulting in a small amount of additional mitigation acreage from that originally
calculated (designated as WPZ on Attachment 3). The total area in the permits designated for
restoration and enhancement is approximately 7,901 acres.
To compensate for approximately 0.10 acres of additional wetland impacts which will result from
unavoidable placement of the northwest set of guy wires for the communications facility in
wetlands outside of the present rockmine area, an additional berm and barren scapedown area at
the north end of the property presently permitted for rockmining--comprising approximately 2.23
acres and included in WEZ #3 on Attachment 4--will be returned to surrounding wetland
elevations.
The U.S. Fish and Wildlife Service (F&W) and Florida Fish and Game Conservation Commission
(FFGCC) have expressed concerns to the applicant that the proposed communications facility may
have impacts on birds. The applicant has met with representatives of these agencies and has
developed with them the folto.wing plan to address these concerns:
· fund a study of the impact of communication facilities in the Florida Keys on birds, a not-for-
profit corporation for which has been established
· leave a section of the northernmost berm in place following restoration of the remainder of
WEZ #3 to create an island surrounded by wetlands for a completely isolated tern and plover
nesting site;
· control access to a section of the existing northern berm as an additional nesting site; and
· place visual marker balls on the lower portions of the guy wires.
With inclusion of the nesting island, WEZ #3 will comprise 2.42 acres.
The specific fashion in which this restoration is accomplished is defined in Attachment 5. These
conditions are derived from conditions in the existing DEP and ACOE permits, and are modified
to include the addition of the northwest guy wires and access road and additional mitigation, and
to provide for review and approval of certain terms by DCA., as signator to this agreement. These
conditions provide for a specific compliance schedule for restoration linked either with execution
of this agreement or acquisition of regulatory permits, preparation and recording of a
conservation easement for all lands within the additional restoration area. The conditions also
provide for removal of mangroves and other wetland plants where they encroach on ex~sting fill
substrate to be restored to surrounding wetland elevations; clean up of the site, most of which is
already completed; removal of all exotic vegetation on the property; and installation of additional
culverts under the access road to the quany (which has already been completed under the existing
permits) and the northwest guy wire access road.
The berm around the existing deep mine presently includes a littoral zone, as depicted in
Attachment 6 (Figure 11 of 1999 DEP permit sketches), to provide some submerged habitat
within the rockmine itself, and also to provide a shelf as a safety measure for wildlife or people to
climb out of the mine. This safety shelf will be maintained as is.
Cudjoe Key Quarry Restoration Plan. Page 3
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Attachment
Description/Significance
1
Figure 2 in 1988 DEP permit and 1989 ACOE permits, showing previously
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2
Existing Conditions referenced to 10/98 survey, updating Figure 3 in 1999
DEP permit sketches
3
Figure 4 in 1999 DEP permit sketches, showing new excavation boundaries
and restoration
4
Revised Figure 4, showing new site configuration with communications facility
5
Special Conditions to Restoration Plan
6
Figure 11 from 1999 DEP permit sketches, showing cross section of final
berm and'littoral shelf around excavation
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ATTACHMENT 5
Restoration Plans for Cudjoe Key Quarry
SPECIAL CONDITIONS
1. Conservation easements required under existing State and Federal regulatory permits and the
July 17, 1998 agreement between the Department of Community Affairs (''DCA''), Monroe
County ("the County") and Cudjoe Enterprises, Inc,:
(a) A survey of the property was conducted on October 27, 1998 by F.H. Hildebrandt, P.E.
(b) Legal descriptions, scale drawings, and legally sufficient conservation easements for onsite
mitigation areas encompassing 7.4 acres of natural and restored wetlands were provided
to DCA, the County and the U,S. Army Corps of Engineers ("ACOE") for review and
approval on October 8, 1999, These areas will not be disturbed whatsoever by dredging,
filling, land clearing, agricultural activities, planting, or other construction work. Mr.
Dirico has specified in these conservation easements that the only future utilization of the
preserved areas in question will be as purely natural areas.
(c) Within 30 days of approval of the proposed easement by DCA, the County and the
ACOE, Frank Dirico (Mr. Dirico) will record the easement in the public records of
Monroe County, Florida. A certitled copy of the recording, plat, and verification of
acceptance from the grantee will be forwarded to OCA and the County, The recording
and notification to DCA must be made prior to the discharge of any additional fill
authorized under Federal or State permits,
2. Removal of the Wetland Preservation Zone located on property adjacent to the subject
property, has already been removed pursuant to existing permits,
3 Mr, Oirico will provide a survey, not more than 60 days after receipt of all State and Federal
regulatory permits modified pursuant to this agreement, of the northwest guy wire
foundations and access road comprising approximately 0,1 acres, and the additional mitigation
area labeled WEZ #3 on the Restoration Plan (Attachment 4).
4 Mr. Oirico will provide, within 60 days from the date of regulatory permit issuance, a legally
sutlicient conservation easement to ensure that the identified additional mitigation area will
remain in its natural state in perpetuity. The conservation easement will encompass
approximately 2.42 acres of natural and restored wetlands and upland bird nesting refugium,
These areas will not be disturbed whatsoever by dredging, filling, land clearing, agricultural
activities, planting, or other construction work, Mr, Oirico agrees that the only future
utilization of the preserved area in question will be as a purely natural area. The same
procedure outlined in # I above will be followed,
4, Mr, Oirico will remove berms, roads and disturbed areas within the mitigation areas to
surrounding wetland elevations, as depicted in Attachment 4 for WEZ #1, #2, and #3, as
FILii: #1155953
BK#1608 PG#953
shown on Attachment 4, within a period of six months of receipt of all regulatory permits.
5. Mr. Dirico will construct a containment berm along the northwest side of WEZ #1 wide
enough to accommodate heavy equipment. This berm will be completed prior to any fill being
placed in the southwest barren scrape down area.
6, Mr. Dirico will enhance the existing wetland along Blimp Road south of the entrance road
into the property, and improve water circulation on the property, as follows:
(a) Six (6) twelve inch culverts have been placed under the entrance road into the property
under existing permits.
(b) Culverts will be installed under the northwest guy wire access road, as specified by
required regulatory permit modifications.
( c) All fill will be removed to wetland elevations, which may include removal of wetland
plants which -have encroached into the existing fill substrate.
7, A clean site will be maintained to discourage the establishment of a black rat population.
Existing piles of trash have been removed. The site will not be used for storage, except for
communications and mining equipment used on the site. However, nothing in these special
conditions will prevent Mr. Dirico from applying for permits to store other materi,als allowed
under applicable zoning.
8. All exotic vegetation, to include Australian pine and Brazilian pepper, will be removed from
the property within 30 days of acquisition of applicable permits.
9. Mr. Dirico will maintain the property free of exotic vegetation in perpetuity.
10, The U.S. Fish and Wildlife Service has expressed concerns to the applicant that the proposed
communications facility may have impacts on birds. The applicant has met with Fish and
Wildlife and has developed with them the following measures to address this issue:
a) Possible bird collisions with towers-fund a study, designed and managed by the local
U.S. Fish and Wildlife Service office, of the impact of towers in the Florida Keys on birds.
A not-for-profit corporation to oversee and conduct this study has been created,
b) Possible impacts on birds which use the property for nesting, including terns and
plovers-set aside, and control access to, a section of the existing northern berm as a
preserve, and leave a section of the northernmost berm in place to serve as an entirely
isolated and undisturbed nesting area, as shown on revised Figure 4.
c) Place ball markers on the lower sections of guy wires, to aide in visual avoidance of the
WIres.
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February 4, 2000
Good Faith Accomplishments at Cudjoe Key Quarry Site
Industrial Communications and Electronics (IC&E) has proceeded in good faith with mitigation
activities provided for in the 1998 agreement between DCA, the County and the predecessor in
title, Cudjoe Enterprises, Inc" even though mining activities at the site will be discontinued on
completion of construction of the communications facility. The following is a summary of the
restoration activities provided for under the current permits, along with a description of what has
been accomplished, to date, referenced to the attached permit sketch labeled Figure 4, revised
12/99:
.
Detailed survey of the property, and preparation of a conservation easement to be filed
in the official Monroe County records for all restored land.
The survey and easement preparation are complete, the easement is approved by the DCA,
the County and the U.S. Anny Corps of Engineers, and it was filed in the official County
records on December 6, 1999.
.
Removal of an ofT site fill road labeled wetland restoration zone (WRZ) to restore
natural water flow to many acres of surrounding wetlands.
This was accomplished in September 1999.
· Removal of benns and restoration of the enclosed wetlands on the south and west
property boundaries titled Wetland Enhancement Area #s 1, 2A and 2B (WEZ).
The berms were removed around the southern property boundary (WEZ #1) in November
1999 and 4.58 acres of wetlands were restored.
· Preservation of wetlands previously permitted for mining expansion, titled Wetland
Preservation Zone (WPZ).
These wetlands were delineated m the detailed survey described above, and will be
preserved, as specified.
· Removal of all exotic vegetation onsite and maintenance of the property exotic free in
perpetuity .
Much of the exotic vegetation onsite has been removed, and removal of the remainder is in
progress.
· Installation of additional culverts under the access road to the property.
These culverts were installed in October 1999.
The project has been designed so that all structural components of the communications facility
will be located on land previously impacted by mining activities, with the exception of the
northwestern guy wire foundations. Because of the radius of the guy wires necessary to provide
wind resistance to meet the Monroe County Code requirement of 150 miles per hour, it is
necessary for this one set of guy wires to be located in wetlands outside of the present mining
impact area. The applicant proposes to exchange wetlands that are presently permitted for
mining expansion for 0.10 acres of new wetland impacts to accommodate the foundations and
access road. This exchange, along with exceptions to Monroe County setback requirements and
l~
Sandra Walters eonsultants
February 4, 2000
a zoning provision, are the subject of a development agreement with DCA, which was executed
on December 6, 1999 and filed with the Clerk of the Court on December 13, 1999.
The U. S, Fish and Wildlife Service and Florida Fish and Game Conservation Commission have
expressed concern regarding possible impacts of the facility on birds. To address these concerns,
the applicant has committed to the following:
1) Impacts of the facility on birds
a) Possible bird collisions with towers-IC&E will contribute to the funding of a study to
determine the impact of towers located in the Florida Keys on birds. To accomplish this,
IC&E has already created a nonprofit organization called the South Florida Avian
Mortality Study, Inc., the board of which will consist of representatives from the wildlife
agencies. This board has met, established goals for how to accomplish the research, and
is identifYing appropriate universities to contact to find graduate students interested in
pursuing the research.
b) Possible impacts on birds which use the property for nesting, including terns and
plovers-restrict access to a portion of the northern berm to traffic of maintenance
equipment on an infrequent basis; in addition, as part of wetland restoration work
described under 2)b) below, leave a portion of the northernmost berm after removal of
communicating berms, to serve as an inaccessible island for undisturbed nesting.
2) Approx. 0.10 acre impact on wetlands by placement of the northwest set of guy wires
a) Install access road and guy wire bases to minimize interruption of tidal flow, including
culverts (see revised Figure 12).
b) Restore and enhance 2.23 acres (+/-) of additional wetlands at the northern end of the
existing mining area by removing the existing northernmost berm to surrounding wetland
elevations. This is shown on Figure 4 as WEZ #3.
An application has been filed with the Florida Department of Environmental Protection (DEP) to
modify the existing Environmental Resources Permit (#44-0150416-001-ES) for the property,
which reflects the proposed project and all the details described above. Figure 4 is the permit
sketch for this application, The Marathon DEP office has conveyed the modification approval to
the Ft. Myers office for issuance.
An application has also been filed with Monroe County for minor conditional use approval, as
required by the new wireless communications ordinance. Preparation of these applications,
including creation of CADD generated permit sketches, landscape and irrigation design to meet
County requirements, etc., has resulted in expenditure of many thousands of dollars.
.
2
DCA Final Order No. DCA99-0R-189
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
INRE:
MONROE COUNTY LAND
DEVELOPMENT REGULATIONS
ADOPTED BY MONROE COUNTY
ORDINANCE NO. 028-1999
FINAL ORDER
The Department of Community Affairs (the "Department") hereby issues its Final Order,
pursuant to SS 380.05(6) and (11), Fla. Stat. (Supp. 1998), and 380.0552(9), Fla. Stat. (I 997), which
require the Department to enter a final order approving or rejecting land development regulations
adopted by Monroe County. This Final Order rejects in part and approves the remainder of Monroe
County Ord. No. 028-1999 as set forth below.
FINDINGS OF FACT
1. The Florida Keys Area is a statutorily designated area of critical state concern, and
Monroe County is a unit of government within the Florida Keys Area.
2. On August 16, 1999, the Department received for review Monroe County Ordinance
No. 028-1999 (regarding the siting and design of wireless communication facilities/towers) which
was adopted by the Monroe County Board of County Commissioners on July 21, 1998 ( "Ord. 028-
1999). Ord. 028-1999 amends Article VII, Divisions 2 and 16, of the Monroe County Land
Development Regulations, as codified at Sections 9.5-232 throl}gh 9.5-253 and Section 9.5-434 of
the Monroe County Code (the "County Code"). The substance of Ord. 028-1999 is set forth in
Sections 1 and 2.
3. Section 1 of Ord. 028-1999 amends Article VII of the County Code, Division 16
Exhibit
JL ;
DCA Final Order No. DCA99-0R-189
entitled "WIRELESS COMMUNICA TION FACILITIES" by setting forth development standards
for various types of wireless communication facilities: "New Antenna Supporting Structures,"
"Replacement of an Existing Antenna-Supporting Structure," "Collocations on an Existing Antenna-
Supporting Structure," "Attached Wireless Communication Facilities," "Stealth Wireless
Communication Facilities," and "Satellite Earth Stations."
4. Section 2 of Ord. 028-1999 amends Article VII of the County Code, Division 2
entitled "STANDARDS FOR ZONING DISTRICTS" by amending the 'As of right uses,' 'Minor
conditional uses,' and the 'Major conditional uses' allowed in many land use districts, including the
'Native Area' land use district.
5. Other than Satellite Earth Stations (which may not exceed 35 feet in height), there
are no height limitations for new wireless communication facilities/towers. Self-supporting
facilities/towers may include guy wires or other stabilization devices. Ord. 028-1999 permits new
wireless communication facilities/towers in several land use districts, including all urban and sub
urban commercial, industrial, and mixed-use districts.
6. According to the County Code, the purpose of the 'Native Area' land use district "is
to establish areas that are undisturbed with the exception of existing solid waste facilities and
because of their sensitive environmental character should be preserved in their natural state." Sec.
9-5.210. However, Ord. 028- I 999 also permits both "new-antenna-supporting structures" and
"stealth wireless communication facilities" to be located within the 'Native Area' land use district,
Sec. 9.5-434.4(a), 9.5-434.4(e), Sec. 9.5-239(b)(5), and Sec. 9.5-239(c)(4), which areas may include
areas containing wetlands, uplands, native vegetation and protected habitat. The use of guy wires,
2
DCA Final Order No. DCA99-0R-189
for example, in the critical nesting and resting sites of local bird population can cause adverse
impacts to those populations and is contrary to Objective 207.9 of the County's Comprehensive Plan.
7. Additionally, Sec. 9.5-434.4.(a)(2)f.2.(v) of Ord. 028-1999 provides that areas
covered with pea stone ofless than one inch in diameter shall not be considered as development area
for the purpose of determining setbacks and open space requirements. The effect of this would be
that any driveway, access, or parking area consisting of gravel (less than one inch in diameter)
would not be considered "development." Gravel roads, for example, would disrupt the flow of water
and impact tidal exchange, and will impact the natural hydro logic regime that occurs within
wetlands. This provision is further inconsistent with Policies 204.2.1, 204.2.2 and 204.2.3 of the
County's Comprehensive Plan.
CONCLUSIONS OF LAW
1. The Department is required to approve or reject any and all land development
regulations that are enacted, amended or rescinded by any unit of government in the Florida Keys
Area within 60 days ofreceipt by the Department. ~~ 380.05(6) and (11), Fla. Stat. (Supp. 1998),
and 380.0552(9), Fla. Stat. (1997).
2. Monroe County is a unit of government within the Florida Keys Area. ~ 380.0552
(1997) and Rule 28-29.002 (superseding Chapter 27F-8) and Chapter 28-30, Fla. Admin. Code.
3. "Land development regulations" include local zoning, subdivision, building and other
.
regulations controlling the development of land. S 380.031 (8), Fla. Stat. (Supp. 1998). The
regulations adopted by Monroe County Ordinance No. 028-1999 are land development regulations,
as defined by the statute.
3
DCA Final Order No. DCA99-0R-189
4. All land development regulations enacted, amended or rescinded by Monroe County
must be consistent with the Principles for Guiding Development. ~ 380.0552(7), Fla. Stat.; see
Rathkamp v. Department of Community AfJairs, 21 F.A.L.R. 1902 (Dec. 4,1998), afJ'd, 24 Fla. L.
Weekly. DI807 (Fla. 3d DCA Aug. 24, 1999). In reviewing the land development regulations for
consistency, the Principles shall be construed as a whole and no specific provision shall be
construed or applied in isolation from the other provisions. ~ 380.0552(7), Fla. Stat. (1997).
5. The Department has reviewed all provisions of Ord. 028-1999 for consistency with
the Principles for Guiding Development. Paragraphs (g), (h), (i), and (j) of the Principles do not
apply to Ord. 028-1999.
6. The first Principal for Guiding Development proscribes: "To strengthen local
government capabilities for managing land use and development so that local government is able to
achieve these objectives without the continuation of the area of critical state concern designation."
~ 380.0552(7)(a) (1997). It follows, afortiori, that any land development regulation proposed by
Monroe County that is inconsistent with its own comprehensive plan undermines its capability to
manage land use and development. Rathkamp, supra. Moreover, a local government in the Florida
Keys Area which adopts land developments which are inconsistent with its comprehensive plan
cannot achieve the objectives described in the other Principles for Guiding Development [paragraphs
(b) through (1)J, and should reasonably expect that the area of critical state concern designation will
.
continue. Id. Therefore, land development regulations must also be reviewed for consistency with
the County's Comprehensive Plan.
7, Here, the permitting of new wireless communication facilities/towers in the 'Native
4
DCA Final Order No. DCA99-0R-189
Area' land use district is not consistent with the Principles for Guiding Development as a whole.
Specifically, this is not consistent with paragraph (a) of the Principles to the extent that it is
inconsistent with the referenced goals and policies of the Comprehensive Plan and regulations
thereunder. This is also is not consistent with paragraphs (b), (c) and (I) of the Principles due to
adverse impacts to the natural and unique resources ofthe Florida Keys. Such facilities and towers
will not enhance the natural and scenic vistas of the Florida Keys or promote the aesthetic benefits
of the environment pursuant to paragraph (t) of the Principles. ~ 380.0552(7)(a), (b), (c), (t) and
(I), Fla. Stat. Additionally, based on the findings and reasoning above, the parenthetical phrase in
Sec. 9.5-434.4.(a)(2)f.2.(v) ofOrd. 028-1999 (regarding pea stone ofless than a certain size being
excluded as development) is not consistent with the Principles for Guiding Development as a whole,
and specifically with paragraphs (a), (b), (c), and (e) of the said Principles. ~ 380.0552(7) (a), (b),
(c), and (e), Fla. Stat. Accordingly, the following provisions of Ord. 028-1999 are deemed not
consistent with the Principles for Guiding Development:
· Sec. 9.5-434.4(a) (Table entitled "New Antenna-Supporting Structures" on
Page 11 of Ord. 028-1999, referring to the "X" marked on the row for the
'Native Area' land use district);
· Sec. 9.5-434.4(e) (Table entitled "Stealth Wireless Communications
Facilities" on Page 24 of Ord. 028-1999, referring to the "X" marked on the
row for the 'Native Area' land use district);
· Sec. 9.5-239(b)(5) (entire sub-section);
.
· Sec. 9.5-239(c)(4) (entire sub-section); and
· Sec. 9.5-434.4.(a)(2)f.2.(v) (entire parenthetical: "not including areas covered
with pea stone ofless than one (1) inch in diameter"),
Ord. 028-1999, at pages 10, 13,24,30 and 31.
5
DCA Final Order No. DCA99-0R-189
8. The Department has determined that the remainder ofOrd. 028-1999 (excluding those
provisions cited in the preceding paragraph) are consistent with the Principles for Guiding
Development as a whole. Overall, Ord. 028-1999 provides greater regulatory control over the siting
and design of wireless communication facilities/towers in furtherance of paragraph (a) of the
Principles. Further, Ord. 028-1999 advances the public safety provisions of the Principles in that
properly designed wireless communication facilities/towers will facilitate communications during
and following storm events and disasters. 9 380.0552(7) (a), (k) and (I), Fla. Stat.
WHEREFORE, IT IS ORDERED that the following portions of Monroe County Ordinance
028-1999 are found not to be consistent with the Principles for Guiding Development found at 9
380.0552(7), Fla. Stat. (1997) and, therefore, are hereby REJECTED:
· Sec. 9.5-434.4(a) (Table entitled "New Antenna-Supporting Structures" on
Page 11 of Ord. 028-1999, referring to the "X" marked on the row for the
'Native Area' land use district);
· Sec. 9.5-434.4(e) (Table entitled "Stealth Wireless Communications
Facilities" on Page 24 ofOrd. 028- 1999, referring to the "X" marked on the
row for the 'Native Area' land use district);
· Sec. 9.5-239(b)(5) (entire sub-section);
· Sec. 9.5-239(c)(4) (entire sub-section); and
· Sec. 9.5-434.4.(a)(2)f.2.(v) (entire parenthetical: "not including areas covered
with pea stone of less than one (I) inch in diameter").
Except as referenced above, all other provisions of Monroe County Ordinance 028-1999 are
found to be consistent with the Principles for Guiding Development found at S 380.0552(7), Fla.
Stat. (1997) and are hereby APPROVED.
This Order becomes effective 21 days after publication in the Florida Administrative Weekly
6
DCA Final Order No. DCA99-0R-189
unless a petition is filed as described below.
DONE AND ORDERED this I L(f~ day of September, 1999, in Tallahassee, Florida.
J.T~~~
Division of Community Planning
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
NOTICE OF ADMINISTRATIVE RIGHTS
ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS
ORDER HAS THE OPPORTUNITY FORAN ADMINISTRATIVE PROCEEDING PURSUANT
TO SECTION 120.569, FLORIDA STATUTES, REGARDING THE AGENCY'S ACTION.
DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF MA TERIAL FACT
IN YOUR PETITION REQUESTING AN ADMINISTRATIVE PROCEEDING, YOU ARE
ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING.
IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED ISSUE OF
MATERIAL FACT CONTAINED IN THE DEPARTMENT'S ACTION, THEN THE
ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED
PURSUANT TO SECTIONS 120.569 AND 120.57(2) FLORIDA STATUTES, AND CHAPTER
28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN INFORMAL
ADMINISTRA TIVE PROCEEDING, YOU MA Y BE REPRESENTED BY COUNSEL OR BY A
QUALIFIED REPRESENTATIVE, AND YOU MAY PRESENT WRITTEN OR ORAL
EVIDENCE IN OPPOSITION TO THE DEPARTMENT'S ACTION OR REFUSAL TO ACT; OR
YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN STATEMENT
CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS CHOSEN TO
JUSTIFY ITS ACTION OR INACTION.
IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY
ACTION, THEN YOU MA Y FILE A PETITION REQUESTING A FORMAL ADMINISTRATIVE
HEARING BEFORE AN ADMINISTRA TIVE LAW JUDGE OF THE DIVISION OF
ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND 120.57(1),
FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA
ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY BE
REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND YOU
WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON ALL
THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT REBUIT AL
7
DCA Final Order No. DCA99-0R-189
EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS, AND TO FILE
EXCEPTIONS TO ANY RECOMMENDED ORDER.
IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARlNG,
YOU MUST FILE WITH THE AGENCY CLERK. OF THE DEPARTMENT OF COMMUNITY
AFFAIRS A WRITTEN PLEADING ENTITLED, "PETITION FOR ADMINISTRATIVE
PROCEEDINGS" WITHIN 21 CALENDAR DAYS OF PUBLICATION OF THIS NOTICE. A
PETITION IS FILED WHEN IT IS RECEIVED BY THE AGENCY CLERK., IN THE
DEPARTMENT'S OFFICE OF GENERAL COUNSEL, 2555 SHUMARD OAK BOULEVARD,
TALLAHASSEE, FLORIDA 32399-2100.
THE PETITION MUST MEET THE FILING REQUIREMENTS IN RULE 28-106.104(2),
FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING IS REQUESTED,
THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH RULE 28-106.301,
FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS REQUESTED, THEN THE
PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH RULE 28-106.201 (2), FLORIDA
ADMINISTRATIVE CODE.
A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A
REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY RULE
28-106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSING MEDIATION DOES NOT
AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING.
YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE PROCEEDING
OR A FORMAL HEARING IF YOU DO NOT FILE A PETITION WITH THE AGENCY
CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL ORDER.
8
DCA Final Order No. DCA99-0R-189
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with the
undersigned designated Agency Clerk, and that true ~d correct copies have been furnished to the
persons listed below by the method indicated this~-S .,. of Septe ber, 1999.
L .'af.[ ;'- L- I C
Paula Ford
Agency Clerk
Bv U.S. Mail:
Hon. Wilhelmina Harvey
Mayor of Monroe County
500 Whitehead Street
Key West, Florida 33040
FILING AND ACKNOWLEDGEMENT
FILED, on this date, with the designated
~ency G ,receipt of which is hereby
ac wI ..
! 'it. r-&.
Paula P. Ford
~ency CIeri<
Danny L. Kolhage
Clerk to the Board of County Commissioners
500 Whitehead Street
Key West, Florida 33040
Timothy J. McGarry, AICP
Acting Director of Planning
2798 Overseas Highway
Suite 400
Marathon, Florida 33050
Bv Hand Delivery or Interagencv Mail:
Michael McDaniel, Growth Management Administrator, DCA Tallahassee
Geoffrey T. Kirk, Assistant General Counsel, DCA Tallahassee
Mike Des Parte, Florida Keys Field Office, DCA Marathon
9
ATTACHMENT 35
Letters of Collocation Interest
A. From Bernard Wimmers, WFOR- TV
B.:From Bob Soos, US 1 Radio
C. From James A. Dwyer, Qualicom
D. From Ly Lima, Omnipoint
[,.1
.&.
MEMORANDUM
DATe: M.,., 1999
TO: Tom Haf'lOUtd
PROM; 8emard'Mmmell
AE: New Tower
Dear Tom.
This ...... is to 8XI)reSs the inIeNISt d WFOR- TV in Ioeating br0adt8.
equipment. at your Mure tcMet.. on Cudj6e Key,
We WDUId be intereated ill seCuring . tp8C8 lit or lIIOUnd 950'. 0eeaiIs .. to the
type and size of antenna, .nlnsrnistion line, eIec::triaII circub, and floor space wilt
be ~.. a Isler dale.
Sinoetety, ~
104.1 FM
DiE FLORIDA KEYS RAf)IO STAnON
11/1/99
To: Jim london
From: Bob Soos
Re: Cudjoe Tower Site
We are very interested in the possibility of relocating our sister station,
WCNK-FM's antenna, to your proposed tower on Cudjoe Key.
We would either move our present 8-bay antenna somewhere near the 500 foot
level, or explore the possibility of changing to a 4-bay antenna, placed at the
very top,
Obviously we would like to be at the top, but will have to conduct further
engineering studies to determine feasibility.
Should WWUS suffer a technical failure during a storm. moving WCNK's
antenna to your site would give us the ability to have a back up hurricane
emergency station. If we can locate the antenna at the top. WCNK would be the
only FM station flbls to service all the keys from Key Largo to Key West
Emergency Services could then cover the entire county with one voice.
I look forward to your success. and to improving WCNK's signal.
WWUS - 104.1 FM · JODG OVl:J(~~A'l H/CiHWAY RKi PINr Krv n BO'lj . M/ULJl( KlV~ IU KlY WI:\J I~O!). !l};'.CJ I Oil
^ ~,rllll'\ ("1')'~/frllll'.i.'.r,liwl", IIlf O:;f..lii II' I
QUALICO","
2100 Electronics Lane . Fort Myers, Florida 33912
October 20, 1999
Mr. Mark L. Baker
Industrial Communicatons and Electronics. Inc.
350 N.W. 215 Street
North Miami. FL 33169
Dear Mr. I\aker:
Thank you for your letter of October 13 regarding your Cudjoe
Key site. Our company may be interested in putting an SMR. facility
on that tower. We would appreciate if you would forward the
coordinates.
Thank you.
J:CDwy7;L
JAD/tern
Soutbwest Florida's Leader in Wireless Communications - Since 1959
SMR Trunked SY$tems, Two-Way Radio, PriVate Systems. Engineering Services
Pon Charlotte 290-476/ . Fort Myers 481.8700 .. Naple5360-4767
Fax (941) 489-1928
~
.
OMNIPOINT CCMlUNlCATIOHS 8ERVICE8
eoo ~ ~ ........... fL 3300i
.......,-#DO Fee .44.7.a701
12-9-91
Mr. Mart L. Baker
laduIIriaI CoauramicadoBa.t BI~lta.lnc_
lS.. DoabIecGG Ori\<e
DeIrJy BMch, JlL Jl446
RE: Tower SI. GlI alllp'" ia CW;. Key, "-
Oar MarIe
w. Mw NOeivecl )QU' .... c:aooemina.... pu&ajb&e c:o-WclIIioa ~ out lIIIIt:ImaI OIl your J'lopoeed tower
ute.
llmnipoiDt MUId be ...... J ...d ill dU.IcaliOll providad duit .. obIlIio wria.en WI'ifi&:atiGo from MGIuot
Coumy thM our ~ j~lI";G11 e8Il ClOGIiawt 1O~ ~...... caller aIIernIrM IUl
would IlJaw UI to COIIIiDue our QiITIIIf owel1lll'lrwla lJttlil \\4Ud1 UmII M c:a ~ WiIihudioD an
the MW tORI.
PIAN lUIIaQ lilt. dill..... WJfeId&.
SiftCerely,
~.,e
LyLima
Property ~~~
02/14/2000 17:36 3052967450
ROKOS
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FEB-15-00 TUE 05:11 PM GINA - US1 RADIO
3052924837
P.01
2/15/00
184.1 fl
TO: Monroe County Commissioners
FROM: Bob Soos
General Manager.
US-1 Radio/CONCH-FM
HE: Proposed Cudjoe Tower
After Hurricane Georges, we did a thorough inspection of our transmitter site on
Ramrod Key, and our studio facility on Big Pine. Frankly, I was amazed we
stayed on the air. The roof of our transmitter building had almost, blown off, and
our microwave antenna,(which receives the signal from the studio) had been
twisted away from the signal path.
Our studio location sustained damage to the roof, and we were operating in a
studio with about three inches of water on the floor. If Georges would have
increased in strength. there's no doubt we would have been forced off the
air...._leaving the keys without a source for information.
We have since been searching for a way to strengthen our facilities. in the event
of a storm worse than Georges. After reviewing the plans for the proposed
Cudjoe tower and support building, we feel it's the answer.
Should the tower be approved, we plan on relocating US1 to the new tower. Our
antenna will be higher than at our present site, allowing us to cover more of the
keys. We also plan to move our other station 98.7 CONCH.FM to the facility as
well. Since the support building will be far stronger than our Big Pine studios, we
will build a small emergency studio there, so we can broadcast directly from the
transmitter site, if necessary
You've already seen letters of support for this tower from county officials such as
Billy Wagner and Rick Roth. The proposed location is the only place in the keys
this kind of tower can be built. It will have minimal impact on the environment.
and will be far from any residential area. I hope you determine the tower's
feasibility based on facts, and not emotional rhetoric.
wwus - 104.1 FM · 30336 OVERSEAS HIGHWAY. BIG PINE KEY. R 33043 . MIDOLE I<EYS Yo KEY WEST 1305) an-91 00.
1\ Cr(lin CommunIC(l\lons. Ine, SUlOon
/,-.1
L,7-