Item L2
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: June 16, 2004
Division:
Growth Management
Bulk Item: Yes
No X
Department:
N/A
AGENDA ITEM WORDING: Consideration of a possible settlement agreement in the case of
Industrial Communications and Electronics v. Monroe County regarding the proposed 1,000 foot
communications tower in Cudjoe Key.
ITEM BACKGROUND: In response to a request from Industrial Communications and Electronics,
the Board of County Commissioners on May 19, 2004, agreed to meet at its next regularly scheduled
meeting with that firm's legal counsel, Mr. David Paul Horan, to discuss a proposed settlement
agreement. To assist the Board of County Commissioners in its consideration of the proposed
settlement, as outlined in Mr. Horan's letter, the Growth Management Division has prepared a staff
memorandum. The memorandum provides a brief description of the proposed settlement, information
on the Coast Guard's Rescue 21 Project and implementation plans for Florida Keys, and a summary of
staff concerns with the proposed settlement.
PREVIOUS RELEVANT BOCC ACTION: Board approved entering into a stipulated agreement
with ICE to stay appeal order by the 11 th Circuit Court of Appeals until it had an opportunity to hear
and discuss the proposed settlement agreement at an appropriate time and venue.
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS: See staff report.
TOTAL COST:
N/A
BUDGETED: Yes
No
COST TO COUNTY:
N/A
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes N/A No
AMOUNT PER MONTH
Year
DOCUMENTATION:
Included X
anagement _ N/ A_
APPROVED BY: County Atty N/A
DIVISION DIRECTOR APPROVAL:
To Follow
Not Required_
AGENDA ITEM # L<<
DISPOSITION:
Revised 2/27/01
County of Monroe
Growth Mana$ernent Division
2798 Overseas Highway
Suite 410
Marathon, norida 33050
Voice: 305.289. 2500
FAX: 305.289. 2536
Board of Countv Commissioners
Mayor Murray Nelson, District 5
Mayor Pro Tern David Rice, District 4
Comm. Charles "Sonny" McCoy, District 3
Comm. George Neugent, District 2
Comm. Dixie Spehar, District 1
MEMORANDUM
TO: Board of County Commissioners
FROM: Timothy J. McGarry, AICp/11A
Director of Growth Mana~~it
DATE: May 28,2004
SUBJECT: Background Information for Discussion of Proposed Settlement
Agreement between Industrial Communications and Electronics
Overview
At its regularly scheduled May 19, 2004, meeting, the Board of County Commissioners directed
the County Attorney to enter into a stipulated agreement with Industrial Communications and
Electronics (ICE) staying the pending appeal order by the 11 th Circuit Court of Appeals until the
Board of County Commissioners had an opportunity to hear and discuss the proposed settlement
agreement at its Marathon meeting on June 16,2004. A copy Mr. David Paul Horan's letter, legal
counsel for ICE, laying out a proposed settlement agreement in conceptual form is attached.
Proposed Settlement Agreement
In his letter, Mr. Horan refers to a U.S. Coast Guard project for a national project called "Rescue
21". Among other things, this involves the placement of towers around the U.S. coastline to
instantly triangulate radio transmissions. A description of this project from a government resource
web page is attached.
In his letter, Mr. Horan states that under Rescue 21, the Coast Guard is planning to construct a
1,500 foot communications tower in Saddlebunch Key (MM 15) and another tower in Islamorada
(MM-79). He indicated that federally-owned towers do not allow co-location.
The gist of his letter is that if the County agrees to allow his client's 1,000 foot communications
tower to be built, then the Coast Guard will co-locate on this tower obviating the need for the
\ \GMD0059\tim\DOCUMENT\Court and Appeal Cases\ice-agenda2-settlement.doc
Page lof3
proposed 1,500 foot tower. It is unclear from his letter whether such a scenario would preclude the
necessity for another tower in Islamorada.
He further opines that the County could justify the issuance of the permit to ICE under the
proposed settlement based on the tower ordinance that was in effect when the ICE application for
the tower was submitted. If the County doesn't go along with the settlement, not only will the
Coast Guard construct the 1,500 foot high tower, but the County would have to rescind the
permanent conservation easement conveyed to the County on the subject property and allow the
continued operation of the borrow pit. No wetlands restoration would occur.
Contact with the Coast Guard on Rescue 21 Project
On May 25, the Growth Management Director contacted Lt. Sam Edwards (202.267.0902), Public
Affairs Officer for the Rescue 21 Project to obtain the facts concerning implementation plans and
schedule for Key West and the Florida Keys. When questioned about the proposed 1,500 square
foot tower, he indicated the proposed plan for Key West submitted by General Dynamics (project
contractor) had been rejected by the Coast Guard in March of this year.
Lt. Edwards stated that the major reason for this rejection was the Coast Guard's concerns about
the risks of degradation for such a high tower from hurricanes. The components of the Rescue 21
systems need to be fully operational and reliable during and after even catastrophic storm events.
When Lt. Edwards mentioned that the typical height of such towers being constructed for the Coast
Guard under Rescue 21 was under 400 feet, I asked him why the contractor proposed a 1,500 foot
high tower. Without having the specific plan information before him, he offered the opinion that it
had to do with increased coverage area, possibly reducing the need for other towers to adequately
cover the coastline.
As for Coast Guard policies concerning co-location, Lt. Edwards indicated co-location on
privately-owned towers was an option; however, any such tower would have to meet the
operational and maintenance requirements established for the Rescue 21 project.
He further indicated that General Dynamics would be coming back to the Coast Guard with a
revised plan for Key West within two to four months. When asked if the Coast Guard would
favorably reconsider placement of a 1,000 foot or higher tower, he indicated that he would not rule
it out, but the Coast Guard has definite concerns about the risks with tall towers.
Lt. Edwards also confirmed that such a project was subject to the National Environmental Policy
Act and Endangered Species Act. His agency had consultation agreements with the U.S. Fish and
Wildlife Service and Environmental Protection Agency.
Staff Concerns
The staffhas the following concerns with the proposed settlement:
\\GMD0059\tim\DOCUMEN1\Court and Appeal Casesuce-agenda2-settlement.doc
Page 2 of3
o The appellant has not provided any tangible quid pro quo solution that would
benefit the County to enter into a settlement at this time. The Coast Guard has
rejected plans for a 1,500 foot communications tower and it will be at least two to
four months before any new plans are approved. Even if the County were to agree
to enter into the proposed settlement by granting a permit for the 1,000 foot
communications tower to ICE, no guarantee exists that the Coast Guard would ever
co-locate on that communications tower.
o The statement in Mr. Horan's letter that if the ICE tower is not permitted the
permanent conservation easement on the subject property at Cudjoe Key will have
to be rescinded and continued operation of the borrow pit will have to be allowed
does not accurately reflect the situation. Under the Chapter 380.032, F.S. agreement
entered into in 1999 between DCA and Mr. Frank Dirco (ICE), ICE is required to
annually obtain renewal of all required County permits for the mining operations on
the site. ICE failed to renew its annual County excavation permit in 2003 and the
DEP permit expired on April 12, 2004. Therefore to reinitiate mining operations,
he will need to submit permit applications and be issued new permits.
More importantly, ICE is still bound by the wetlands restoration plan and
reclamation requirements of a 1998 Settlement Agreement, which were modified by
the Chapter 380 Agreement between Mr. Dirco (ICE) and DCA. The 1998
agreement requires all mining to cease and restoration to be completed by July 16,
2008.
o Mr. Horan's rationale that the legal justification for the County issuing the tower
permit as part of a settlement agreement presumes that the conditional use would
have been approved by the Planning Commission. Even under the old ordinance the
height of the tower in relationship to existing towers in the County and its proposed
location make it highly problematic that conditional use would be granted due to
these possible adverse impacts on community character.
Recommendation
Unless more compelling reasons or arguments are presented for settlement of this case, the Growth
Management Division staff believes it would premature to pursue the proposed settlement.
Attachments
\\GMD0059\tim\DOCUMEN1\Court and Appeal Cases\ice-agenda2-settlement.doc
Page 3 of3
Coast Guard updates its disaster call system
Page 1 of2
N
Coast Guard updates its disaster call system
11/18/02
By Preeti Vasishtha,
GCN Staff
Rescue 21 will address signal coverage gaps, inadequate capacity, garbled signals and
interoperability with other agencies
The Coast Guard is modernizing the way it monitors distress calls from vessels.
The agency in September awarded a 19-year, $611 million contract to General Dynamics Corp. to begin
work on the Rescue 21 project. Through the project, the Guard will upgrade its 30-year-old, short-range
analog communications network, the National Distress and Response System, which no longer supports
the Coast Guard's communications needs in coordinating search-and-rescue operations, said Capt.
Ronald T. Hewitt, NDRS modernization project manager.
Rescue 21 will improve the agency's ability to receive rescue calls from boaters, pinpoint their locations
and coordinate rescues, Hewitt said.
Agency officials had been concerned that the contract might be held up because of an Office of
Management and Budget directive halting infrastructure projects at agencies slated to become part ofthe
proposed Homeland Security Department. But Hewitt said the Homeland Security IT Investment
Review Group, which is looking to consolidate IT projects at HSD-bound agencies, decided the Rescue
21 was mission-critical and gave approval to proceed.
The Guard expects to complete the rollout of Rescue 21 by Sept. 30,2006.
General Dynamics next year will start deploying it in Atlantic City, N.J., and some parts of Maryland.
The next deployments will be in St. Petersburg, Fla.; Mobile, Ala.; and along the coast of Washington
state.
"Simply put, this new system will be the maritime equivalent of a 911 system, enhancing maritime
safety by helping to minimize the time that search-and-rescue teams spend looking for people in
distress," Transportation secretary Norman Y. Mineta said. "And that means saving more lives."
General Dynamics beat out bids by Lockheed Martin Corp. and Scientific Applications International
Corp. for the contract, which has a six-year base and three follow-on options-two four-year periods
and a five-year period.
Subcontractors include American Nucleonics of Westlake Village, Calif.; CACI International Inc. of
Arlington, Va.; Communication Services Inc. of Mesa, Ariz.; Fuentze Systems Concepts Inc. of
Charleston, S.c.; Integrated Defense Solutions Inc. of Austin, Texas; L&E Associates of Oxon Hill,
Md.; and Motorola Inc.
Coastal network
The existing network of284 VHF-FM antenna sites with analog transceivers lies along the East and
West coasts, Hewitt said. Each site covers 20 to 30 nautical miles.
There are 46 communications centers monitoring the antenna sites. One communications center
typically monitors messages received at two to 10 sites.
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OS/2612004
Coast Guard updates its disaster call system
Page 2 of2
The centers use six maritime frequencies, Hewitt said. For instance, vessels send distress signals through
VHF-FM Channel 16, at 156.8 MHz, and the center uses other channels to manage search-and-rescue
operations. A major problem is that the system can handle only one channel at any time because of a
shortage of receiving capacity, Hewitt said.
Also, if two boats try to communicate with a center simultaneously and the signals are the same
strength, the center gets a garbled message. If one distress signal is stronger than the other, the weaker
signal is lost.
Another problem is that the system does not cover the entire coastline. Despite the antennas' spacing,
there are still about 60 spots where vessels cannot communicate with any center. With the new system,
the Guard will:
. Greatly reduce the gaps in the communication network
. Increase channel capacity, which will allow simultaneous communications on six channels,
including VHF-FM 16
. Gain direction-finding equipment that will pinpoint a distressed vessel closer than is currently
possible
. Have digital selective-calling capability that will instantly transmit a vessel's name, location and
the nature of its distress
. Use digital recording for instant playback
. Interoperate with other federal, state and local communications systems.
@ 1996-2004 Post-Newsweek Media, Inc. All Rights Reserved.
http://www.gcn.comJcgi-bin/udt/im.display.printable?client.id=gcn2&story.id=20452
OS/26/2004
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Tim McGarry, Director
Growtb Management Division
Monroe County
Marathon, Florida
Re: Industrial Comm 'cations v. Monroe C0W11~
Appeal #03-12233 DO
;
The subject of settlemen of this appeal has been 1 before the Commission in
"Executive Session"~ !
i
Industrial Communicatio s & Electronics (rCE) bought the 62-acre Cudjoe
borrow pit based upon advice ( itten) from Monroe Co~ty Senior Comprehensive
Planner, Chad Meadows. ICE w eked for 2 yeaTS to help Monroe County originate and
pass a Tower Ordinance (#028-1 99 approved by DCA 9/l 4(99). The ordinance had no
height limitations. lbree (3) m atoriums later, an "Amended Tower Ordinance" was
passed prohibiting any tower fro being constructed in ex~ess of 300 feet. After the
second moratorium, ICE filed su t in the State Court contesting the procedure used by
Monroe County in passing the se ond moratorium. The COVnty prevailed by explaining
to the Court that the moratorium was "only" 180 days ancl was necessary in order to
change Monroe County's Comp ehensive Plan. Upon expiration of the 180 second
moratorium, a third moratorium entered and, to date, no change in Monroe County's
Comp!ehensive Plan has been ma e relating to communication towers.
Monroe County asked for d received from ICElDqA (on )]/9/99) a so-called
"380 Agreement" allowingplac ent of one of the tower; anchors in wetlands. On
January 20, 2000, Monroe Count requested and received ~ "Permanent Conservation
Easement" closing the Cudjoe orrow pit and requiring ~ considerable amount of
wetlands res~oration work. This C nservation Easement insUJ:~s that the easement only
.
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~~,~~,--~~ ~~.~-
Tim McGarry, Director
Growth Management Division
April 14, 2004
Page 2
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allows the construction of the to er and building housing a communications booth, large
diesel generators, etc.. The rest f the property is required to remain in its natural and/or
restored state. Monroe County so requested and received:8 "Co-Location Agreement"
requiring ICE to allow the place ent of private and public antenna structures on the ICE
tower. Sheriff Roth has written e County in support of the ICE tower due to its ability
to cover all of Monroe County fr m one transmitting antenna.
Monroe County staff de ided to process the ICE tower application under the
Amended Tower Ordinance and CE filed in Federal Court:to require processing under
the ordinance that was in effect 1 the time the ICE towerappJication was filed. The
Court held that the prior State C urt action prohibited the federal action. ICE took an
appeal, which remains pending.
Recently, the USCG wa funded (under Homeland Security provisions) for a
. national project called "Rescue 2", This involves placement of towers around the U.S.
coastline to instantly triangulate adio transmissions. The tontractor for the USCG is
General Dynamics (Mr. Mark Fi gerald (480) 441-3559 of Phoenix, AZ).
If the Industrial Communi ations tower is permitted and built, then this one tower
will be used instead of towers bei g constructed for the USCG on federal lands along the
Keys) without the need - or oppo unity - for .input from M~nroe County. Attached are
the drawings for the proposed 500 ft. tower a1 SaddlebUnch Key (MM-15). The
"Rescue 21" plan also includes a wer in Islamorada (at MM-79). Federal towers do not
allow co-location and the Penn eot ConseJVation Easement previously conveyed to
Monroe County will have to be r scinded and continued operation of the borrow pit will
have to be allowed. There will be no wetlands restoration.
Finally, settling the Feder Court appeal with Industriial Communications will not
create any dangerous/future prec dent that can be used against Monroe County. The
Cudjoe site is the onlY place' Monroe County where a tall civilian tower can be
constructed. The legal justificatio for settlement is that our pennit would be issued under
the original tower ordinance tha was in effect when the Industrial Communications
application for the tower permit w s submitted.
.
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Tim McGarry, Director
Growth Management Division
April 14, 2004
Page 3
This settlement helps H meland Security and is supported by Sheriff Roth, the
INS, DEA and USCG, it allow future co-location of antennas and it settles litigation
with Monroe County.
:2?;Av~
DAVID PAUL HORAN
For the Firm
DPH:krh
Attachments as stated.
HUt'<AN ~ WALLAL;t.
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