Item J3
BOARD OF COUNTY COMMISSIONERS
Meeting Date: May 19,2004
AGENDA ITEM SUMMARY
Division: Growth Management
Bulk Item: Yes
No X
Department: N/ A
AGENDA ITEM WORDING: Approval of a request by Industrial Communications and Electronics
to authorize legal counsel to enter into a stipulated agreement staying the pending appeal order by the
11 th Circuit Court of Appeals until the Board of County Commissioners has had an opportunity to hear
a proposed settlement agreement at an appropriate time and venue.
ITEM BACKGROUND: As reported to the BOCC by the County's Growth Management Litigation
Attorney, Industrial Communications and Electronics (ICE) involves a proposed 1,000 foot
communications tower on Cudjoe Key. This federal case alleges that the wireless tower moratoria
enacted by the County were unconstitutional on various grounds and violated the Federal
Communications Act.
ICE's attorney submitted a letter to the Growth Management Division suggesting a proposed
settlement agreement, which is attached to this agenda item. Due to the significant public policy issues
involved, the County Growth Management Director and Division's Litigation Counsel recommend that
this settlement agreement be discussed in the Sunshine and scheduled as a Commission agenda item in
a proper venue, such as in the Middle or Lower Keys.
As the 11 th Circuit Court of Appeals is already deliberating on this case, ICE is requesting that both
parties enter into a stipulated agreement staying the pending appeal order to be issued by that court
until the Board of County Commissioners has the opportunity to discuss the proposed settlement
agreement.
PREVIOUS RELEVANT BOCC ACTION: Board discussed settlement of this appeal in Executive
Session in 2003.
CONTRACT/AGREEMENT CHANGES: NM
STAFF RECOMMENDATIONS: Approval
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
APPROVED BY: County Atty
, ICP
DIVISION DIRECTOR APPROVAL:
DOCUMENTATION:
Included
X
To Follow Not Required
---:GENDA ITEM #~
DISPOSITION:
~~I ~~I ~~~~ .U.LU
,JU.JLJ""ULL
.OAVlD P~1.1l HOR.\N, P.A.
.E.DWAlID W. HOllAN. P.A.
R. BRUCE WALLACE. P.....
-OPAllUCIA A. IlABUlS
--
Tim McGarry, Director
Growth Management Division
Monroe County
Marathon, Florida
nUF'.HI"t 01 WHl....LMvc:..
r-I-l"'t:. 01
ORAN HORAN:
~~~~~~~~T ~~p
.
liOI WJ.l.rnHEAD STIUlBT
KEY WEST, PLORlDA 33040
,
April 14,2004
()o,) Z'4-4515
(lOS) 2lN-3411
PAA (305) ~71:O
PAX (lOS) 54-4S'J
"AlSO MEMIU!Jl COWRAOO BAR
."ALSO MJ;MBER I\R.KANSAS BAR
Re: Industrial Conun 'cations v. Monroe Counl~
Appeal #03-12233 DO i
;
The subject of settlemen of this appeal has been! before the Conimission in
!
"Executive Session"~
i
Industrial CommWlicatio s & Electronics (ICE) bought the 62-acre Cudjoe
borrow pit based upon advice ( itten) from Monroe Co~ty Senior Comprehensive
Planner, Chad Meadows. ICE w rked for 2 years to help Monroe County originate and
pass a Tower Ordinance (#028-1 99 approved by DCA 9/14(99). The ordinance had no
height limitations. lbree (3) m atoriurns 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 COlinty prevailed by explaining
to the Court that the moratoriwn was "only" 180 days and: was necessary in order to
change Monroe County's Comp ehensive Plan. Upon expiration of the 180 second
moratoriwn, a third moratorium entered and, to date, no change in Monroe County's
Comp.rehensive Plan has been ma e relating to communication towers.
Monroe County asked for d received from ICElDQA (on 11/9/99) a so-called
"380 Agreement" allowing plac ent of one of the tower; anchors in wetlands. On
January 20, 2000, Monroe Count requested and received a "Permanent Conservation
Easement'1 closing the Cudjoe orrow pit and requiring ~ considerable amount of
wetlands res~oration work. lbis C nservation Easement insUI~s that the easement only
Tim McGarry, Director
Growth Management Division
April 14, 2004
Page 2
flU'.....,......... Oi WHLLM......c...
r"",or:.. (JL
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 Cowtto require processing Wlder
the ordinance that was in effect t the time the ICE tower application 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 contractor 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 at 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 ent 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 permit would be issued under
the original tower ordinance tha was in effect when the Industrial Communications
application for the tower permit w s submitted.
~
U~'~~'LUU~ ~O;LO
.:lU:JL:l~'OLL
MUr<:HI'i <II WHLLHv~
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 Momoe County.
:;3)A?/,L
DA VID PAUL HORAN
For the Firm
DPH:krh
Attachments as stated.
r- Hut:. tJ.:l
HUt<AN & WALLAGI:..
t"AUI:.. t:Jb
~4/14/~~~4 l~:~b 3~~~~4f~LL
84/14/2004 11:20 1305292B739
~
!
ti
..
-i
PI
..
<:
>
i
,
I!
l
I I ~,~
a . ~'~
i>E
~~
., '"
CG GROUP KEV WEST
~
lllP or ~ iNt ~
'_4'W~'
M;1/'tI&f;Il' f1!:' tMtt
JAM,~ JL5,L. $
HOTt:
PtlOl'03fjJ.ll/iFTXIRX" ~
~IJJH" ,. ,
~5CD ,," 1ft .,' Slt:ICI:NIJSIrUJD~1
I'IIa'OstD VHr 7;1; ~ ~~, SRl.2.!5-~
:t
(,)
'~
.....;:)
:Ita
~LU
)--J
o~
wr...i.l
d,~
fCl)
tl:
cc
1\111 I' I Ii' ~ 1'11111
~~, ~II: ~g I.;~ I~ml. ,...1
}i+
, ,~
..
-P.
.1
II
-. '" _,iI
"ili.
,.., !
I
I
11111
1~ltI
I
I
, ~i",
I _II
. u;
l;hd
.,
:r:: ....
~~ i
~~
~ :{
,J
I~
i~H
: i I _
~'~
J ~ .,
.6
~
~
,g
s
1
;j
<!)
't:l
i
It
i
~
s
u
S
...r
i
.c:
V>
~
II
Ct)
.c:
u
5
~
:
~
I J I i R I, !i/ ""I ' I "II ;
1IIIIJIlidK I h H II. 1.111 it II \ , I, f
L~ ..aaL..h. Ii i I ~, .~CI ........ : ~
I I J I I
II Bill iJ IltJoI! 111.111 n I
k~ bulill ''':1111 ,.fd ~v.. !t,p. ~ ..
~ I ~ I
~~~:~I'~~:~~~:~
153M A3>l dflOCl9 9:)
II
I
· l "
~'., .r
,'''' ..
, .
~;
6ELBl6lS0Et 0l:II ~00Z/~r/~0