Item V3
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: June 16 , 2004
Bulk Item: Yes No X
Division: Growth Management
Department N/ A
AGENDA ITEM WORDING:
Public hearing to adopt an ordinance amending Section 9.5-119 (Environmental Restoration
Standards and Agreements) and Section 9.5-346 (Transplantation Plan), Monroe County Code
(MCC) to provide more effective standards for restoration of habitat, eliminate transplantation as
a mitigation option and replace it with payment of mitigation fees into the County's "Restoration
Fund" to be renamed, and an increase in said fees to act as a stronger deterrent to illegal clearing
and development. [ One hearing only required.]
ITEM BACKGROUND:
Concerns have been raised regarding the illegal clearing of environmentally sensitive lands and
development occurring without the benefit(s) of permits. As a result of these concerns, an
ordinance to amend Section 6-29, Monroe County Code (MCC) was drafted and approved to
increase fees for after-the- fact (A TF) permits, including the provision of mitigation fees for
unlawful filling of wetlands. As a result of the amendment to Section 6-29, Growth Management
Division staff was directed to prepare amendments to Section 9.5-119, MCC, to strengthen the
standards for restoration of habitat areas that are illegally cleared. Staff was also directed to
amend Section 9.5-346, MCC, to change the requirements for transplantation to eliminate
transplantation as a mitigation option. This change will provide a dedicated revenue source for
supporting the County's management of its conservation lands.
[Note: Planning Commission delay due to request for legal clarification regarding
additional penalties for illegal clearing]
PREVIOUS RELEVANT BOARD ACTION: N/ A
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATION:
Approval
TOTAL COST: N/A
BUDGETED: Yes
No
COST TO COUNTY: N/ A
SOURCE OF FUNDS: N/ A
REVENUE PRODUCING: Yes No X
YEAR
APPROVED BY: County Attorney X
DIVISION DIRECTOR APPROVAL:
ICP
DOCUMENTATION:
DISPOSITION:
BOCC STAFF REPORT
Page 1 of 10
MEMORANDUM
TO:
The Monroe County Board of County Commissioners
FROM:
K. Marlene Conaway
DATE:
May28,2004
MEETING DATE: June 16,2004
RE: REVISIONS TO MONROE COUNTY CODE, SECTION 9.5-
119 and 9.5-346
I. BACKGROUND
Concerns have been raised by the public, the Monroe County Board of County
Commissioners (BOCC) and County staff regarding the illegal clearing of
environmentally sensitive lands and development occurring without the benefit of
permit(s). As a result of these concerns, an ordinance to amend Section 6-29, Monroe
County Code (MCC) was drafted and approved to increase the fees for after-the-fact land
clearing permits, including the provision of mitigation fees for unlawful filling of
wetlands.
In addition to the aforementioned ordinance, Growth Management Division staff were
directed to prepare amendments to Section 9.5-119 (Environmental Restoration
Standards), MCC, to strengthen the standards for restoration of habitat areas that are
unlawfully cleared and as a result of that, staff has determined that changes in the
transplantation requirements in Section 9.5-346 (Mitigation Standards and County
Environmental Land Management and Restoration Fund), MCC, for on-site and off-site
mitigation of cleared habitat areas are warranted in conjunction with the changes to
Section 9.5-119.
II. ANALYSIS
The illegal clearing of and ensuing development on environmentally sensitive lands in
Monroe County has continued to occur in spite of fees and fines associated with after-the-
fact permits. The existing fee schedule was determined to not be effective in preventing
illegal clearing and development. The protection of environmentally sensitive lands is
supported strongly by the Year 2010 Comprehensive Plan and evidenced by the proposed
moratorium on development in certain Tier I lands.
This text amendment will provide for more effective standards for restoration of habitat
areas, as well as to eliminate transplantation as a mitigation option and replace it with a
Page 2 of 10
requirement for payment of mitigation fees into the county's "Restoration Fund", to be
renamed the "Environmental Land Management and Restoration Fund. Additionally, this
change will provide a dedicated revenue source for supporting the County's management
of its conservation lands.
These changes are consistent with the Goals, Policies, and Objectives of the Year 2010
Comprehensive Plan. As an "Area of Critical State Concern", Monroe County is also
governed by Chapters 9J-5 and 9J-12 of the Florida Administrative Code (F.A.C.) and
Chapter 163 of the Florida Statutes. The proposed text amendment is consistent with 9J-
5.013(2)(c) and 9J-5.013(3)(b). The proposed text amendment will further the following
Principles for Guiding Development:
· 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;
and
· To protect upland resources, tropical biological communities, freshwater
wetlands, native tropical vegetation, dune ridges and beaches, wildlife and
their habitat; and
· To limit the adverse impacts of development on the quality of water
throughout the Florida Keys.
III. FINDINGS OF FACT
1. A text amendment to Section 9.5-119, MCC, is needed to strengthen the
restoration requirements and increase the mitigation requirements for the clearing
of lands without a permit due to the continued occurrence of illegal clearing.
2. A text amendment to Section 9.5-346 is needed, in conjunction with the text
amendment to Section 9.5-119, to eliminate transplantation as a mitigation option
and replace transplantation with a requirement for payment of mitigation fees into
the county's "Restoration Fund", hereby renamed "Environmental Land
Management and Restoration Fund."
3. Staff finds that the proposed changes are consistent with Section 9.5-
511(d)(5)b.(v) "recognition of a need for additional detail or comprehensiveness.
4. Staff finds the proposed changes to be consistent with the goals, objectives, and
policies of the Monroe County Year 2010 Comprehensive Plan.
5. Staff finds the proposed changes consistent with F.A.C. Chapters 9J-5 and 9J-12,
Florida Statutes, Chapter 163, and The Principles for Guiding Development.
IV PROPOSED TEXT
See next page
Page 3 of 10
Section 1.
The title to Section 9.5-119 is hereby amended as follows:
Sec. 9.5-119. Environmental restoration standards aDd aggnlRiDts!
Section 2. Section 9.5-119 (a), MCC, is hereby amended and reorganized into
paragraphs (a) and (b) as follows:
(a) In the event any land clearing g~~YrE is occurring on a site and ~ such
clearing is outside the scope of any permit issued or for which no permit was issued,
~ the building official or other authorized county official, shall issue a stop work
order ~ If an land clearin has occurred for which no ermit has been issued, such
activity shall be subject to code enforcement proceedings under chapter 6.3.- Except
for issuance of an approved after-the-fact permit for restoration, the following permit
application restrictions shall apply upon a stop work order, pursuant to chapter 6.0,
or, a notice of violation pursuant to chapter 6.3, until the restoration conditions of
paragraph (b) are met:i
(1) No application for a building permit application shall be processed or
issued for the subject site, except as provided for in paragraph (c).
(2) No ROGOINROGO application for the subject site shall be accepted.
(3) Any ROGOINROGO application for the subject site currently in the
system shall automatically be withdrawn and, if it is resubmitted, it shall
be considered a "new" application, requiring payment of appropriate fees
and receiving a new controlling date.
(b) The stop work order, if applicable, n.~kQ and the permitting restrictions
of paragraph (a) above shall remain in full force and effect on the site, except where a
notice of violation is not sustained by the special master, until all of the following
restoration conditions have been met for those portions of the site that can not be
permitted for clearing:5
1 Restoration agreements are being eliminated as the proposed language will not allow such agreements
which allowed stop work orders to be removed or permitting even though restoration had not taken place.
2 This revision provides clear authority to code enforcement officers or other duly authorized County
officials to place stop work orders.
3 This revised language reflects the fact that often times unlawfully clearing has already occurred before a
stop work order can be placed.
4 The penalties for unlawful clearing have been increased to include removal from the permit allocation
system and halt on any work or permitting until restoration is completed.
5 This language specifically refers to those areas unlawfully cleared that can not be permitted and must be
restored, which would be accomplished through an after-the-fact permit. In conjunction with paragraph (c),
Page 4 of 10
(l) Restoration of the site to its pre-violation grade in accordance with a
restoration site plan approved by the county biologist.
(2) Replacement of the trees, shrubs, and groundcovers on the unlawfully
cleared site with native plant species as appropriate to the site unlawfully
cleared and, payment of a mitigation fee pursuant to sec. 9.5-346 to
compensate for the environmental damage for removal of those native
plants.6 The trees shall be of a size and maturity commensurate to the
unlawful clearing as determined by the county biologist. The native
species mix shall consist of the approximate percentages of the
predominant tree, shrub and groundcover species on the site unlawfully
cleared prior to the violation, but if any endangered or threatened tree,
shrub or groundcover species were unlawfully cleared, then those species
shall be replaced with plants of a size and maturity commensurate to and
related to the unlawful clearing as determined by the county biologist
regardless of predominance.
(3) All replanted trees, shrubs, and groundcovers shall be located on site ~
ma.ximYm ~xt~Rt p9ggibli within the same areas that were unlawfully
cleared in accordance with an approved restoration site plan. I If all 9f t1:l~
n~p1a~imiRt pl:mt~ ~Ar.Ja9t Bi pRy~i~:dly ripl~~g 9R ~it~, tR~ r~maiag~r
gRall Bi 99R:iti9 t9 tRi ~gYaty tg rigtgri 9r JIl:magir pYbli~ lang~ gr, at t1:li
gi~~ritigR gf tRi CgYRt~T, tg a ".'illiRg g9YimGlillt agiR~~' 9r pYBlk 9r
pri,.':iti ~gRgir(atigR gfGYp t9 riEtgri pyglk l:.lRg~ . Altim.~i'.Tily, om
:;m::).gyat gf mgRi~' i'iRal tg thi riEt gf tRi rip1a~imillt ~9gt ~ Bi plaCi9
~ :ill iE~rg"T a~~gyllt t9 Bi YEi9 by tRi ~gYat)' tg riEt9ri 9r maRagi pygli~
~.: gr, :it tbi gig~ritigR gf tRi ~gYIlt~T, BY a \J.'illiRg ggYimmillt agiaQ~'
9r a pygli~ gr pri":Mi ~9REiIY:iti9R grgyp f9r 9ff; ~iti ripla~imillt 9f t1:li
:.lffe~ti9 habitat. Thi ~gllat~' gRall aggpt agmiRigtrati'.'i pr9~iglJ{i~ f9r t1:li
m:m.agimiRt gf tbi iE~rgW a~~gllllt.
(4) Except as expressively authorized by the county biologist pursuant to an
approved phased restoration site plan, Aall invasive exotic plant species,
a~ giE~rigig iR ~R~tir ','II, pagi~ 193, 17Q, 17~, :iR9 1 ~1, Y9h~.i II,
M9Rl"9i Cgllllt~' C9I+lpriRiRgiYi 1.ang TJ~i Pl:m on the most current
Florida Exotic Pest Plant Council's list of Category I or II invasive exotic
plants shall be continuously removed during the three (3) ~year period
described in ~ybgi~tigR (1) paragraph (d) below.
it allows for an existing building permit to be revised or a building permit application submitted that would
allow for clearing of those portions of the property unlawfully cleared.
6 If land is unlawfully cleared, only that portion of the site that can not be permitted for clearing will need
to be restored
7 The concept of off-site transplantation is not viable based on the experience of Miami-Dade County and
the Monroe County biologists.
Page 5 of 10
(5)
A monetary guarantee for the restoration work as stipulated in paragraph
(e) shall be provided in the form of a surety bond.
Section 3.
A new Section 9.5-119 (c), MCC, is hereby created as follows:
(c) Where clearing of habitat is permitted, a building permit application or
revised permit application may be processed provided such permit specifically involves
the clearing of any portion of the land which has been unlawfully cleared. The subject
building permit shall not be issued until the provisions of paragraph (b) above have been
fully met for that portion of the site on which the unlawful clearing has occurred and
which must be fully restored.~
Section 4. Section 9.5-119 (b), MCC, IS hereby relabeled as paragraph (d) and
amended as follows:9
~@ At least eighty (80) percent of the trees replaced, as described in
EUBEecti9g sec. 9.5-119 W@(2), shall be viable at the end of a EJlryi"e fgr a ~ three
ill year period ~ from the date of the final inspection of the restoration work ~
replwiag; however, dead or dying trees may be replaced, subject to prior approval by the
county biologist, during the ~ three (3) year period in order to assure the eighty (80)
percent minimum is met at the ye:ir'E end of three years. The restoration work shall be
inspected by the county biologist on an annual basis during the three-year period. He
may direct that dead or dying trees be replaced as he deems necessary to ensure the
eighty (80) percent standard will be met at the end of the three years. All invasive exotic
plant species, as described in "9lyme I, Hgmoe C9~r C9mpfel:1ea~iYe Pl:m sec. 9.5-
119 (a)(4) above, shall be continuously removed during the ~ three (3) year period
described above, unless the county biologist directs otherwise.
Section 5. Section 9.5-119 (c), MCC, is hereby relabeled as paragraph (e) and
amended as follows:
(c) Ig lie'.! of compl@ti9g gf iRe regt9r:;&ti9a deEcriBed ig EyeEectiggE (a) :md
(e), tl:1e eyildigg official ma~r lift tl:1e Et9p vr9rk order if tl:1e fgllgY\1ag termg ~d
cggditiogE :ire met:
(1) The permit holder El:1all eater iatg a eigdigg reEtgr:;&tigg agreelReat
a;pltuall~r co'.'egwiag 'NiiR tl:1e C91.lRty iRat, ia coa~ideratigg fgr iRe liftillg
gf the Et9p V,rgrk order, tl:1e permit l:1g1der ',ill reEtgfe the yahp"fully
de:ired pfGperty ig tl:1e malIDer deEcrieed ia EYBEeGti9gg (a) and (9)
accQrdigg to the Eched'.lle required BY the gyildigg gfficial. The BYildillg
8 This provision recognizes the need to allow for revisions to an existing permit or submittal of a permit
application to authorize after-the-fact clearing. Even if these permit holders were not required to restore
any of the property, they would still face monetary penalties under the provisions of Section 6-29, MCC.
9 The one-year time period has been expanded to three-years, which is a much more realistic time period to
ensure plant growth and viability.
Page 6 of 10
of:fki~l iE 1:Hm~b~T ayt1:wri~~g to ~:Rt~r imo EY~R :em ~gr~~m~m OR p~Ralf of
th~ ~OURty.
(e) The permit holder shall be required through a surety bond, to guarantee
the satisfactory completion of the restoration work in accordance with the approved
restoration site plan and the survival of at least eighty (80) percent of the replanted trees
for a period of at least three (3) years after the issuance of the after-the-fact permit for the
restoration work. IU
(1 ) Guarantee amount: The amount of the restoration guarantee shall cover
the full costs of the restoration work described in sec. 9.5-119 (b) (1)
through (4). The estimated costs of the restoration described in sec. 9.5-
119 (b) shall be the sum of a and b, below:!!
a. One hundred (100) percent of the estimated cost of the restoration
described in EYP~~tioR sec. 9.5-119 WCQ)(I) as estimated by the
county'g g~p:irtIR~Rt ofp'lpliQ 'vorkg engineer; or alternatively, one
hundred- fifty 8-00) (150) percent of the price of a binding contract
for the restoration work required by E'.wg~~tioR sec. 9.5-119
W.QU(1) entered into with a contractor qualified to perform such
work.
b. One hundred (100) percent of the estimated cost, as estimated by
the building official, of performing the restoration work described
in gyggi~tioR ea) sec. 9.5-1 19(b)(2) through (4); or, alternatively,
one hundred::M!Y ~ (150) percent of the price of a binding
contract for the restoration work described in Eygg~~ti9R (1) sec.
9.5-119 (b)(2) through (4) entered into with a Florida licensed
landscape architect.
~. littir of ~rigit: TRi Firmit Ro1Q~r m~T fili a gtraigat: ~gHmli~~i~1
littir of ~rigit, iR a form ~~~iFtal?l~ tg thi ~g'mty augAl~Y. TRi
littir of ~rigit IRlut Frovig~ that tRi iggyiRg fiRa.R~ial iREtittltiga
".rill p~T tg tR~ QoYmy, or ~g t1:J.~ ~O~T gir~~tg, :f9119'v,iRg
g~d:R"atigR of a g~~lt, m~R :;R;R9tWE ~g IR~T b~ Ri~iE~:ilJT tg
cgmpl~t~ tR~ riEtoratioR a~~grgiRg tg th~ t~aRg gf tR~ agri~lRim.
Thi littir ghall b~ irr~'.To~:wli for ~'Ti~T foyr (2<1) 1R0aUlg :R:OIR
t1:J.~ gat~ oftR~ figtgratiga agriilRim gyt IR~T, at th~ gig~~tigR gf
tR@ buildiRg official, b@ reg\lc~g gg'Y~.'~.~:ird :lE '^7grk i~ ~gm.pl~tid;
gyt iR RO iY~Rt gRall tR~ fiRal tiR (1 0) F~r~~m Pi r~l~ag~g ootil t1:J.~
10 The current regulations do not require monetary guarantees except in the case of a restoration agreement
which have been eliminated in the proposed ordinance. This guarantee is needed to ensure restoration is
completed and the survivability of the replacement plants is ensured.
II The estimated costs to base the amount of surety bond is higher for amounts based on construction
contracts to provide some protection for the County in case of a default where the construction contracts
may not reflect true costs.
Page 7 of 10
gae ~'e:.ir Euryi"abilit:" rate lmd eXQtk maiatealmce re~ir.emem~ Qf
EugEectiga (a)(]) aad (<1) R~'e beea met. The pet:R:lit aQlder ERall
alEg agree t9 releaEe tRe iEEuer Y9m all pa~~eRtE made after the
ded:.irati9a Qf deftmlt b~' tRe bQ:.ird Qf CQuRty c9HYRiEEiQaerE.
boll Surety bond: The surety bond shall be in a form and with a bonding
company approved by the county attorney. The bond shall be payable to
the county in the amount of estimated total cost for restoration work as
calculated in sec.9.5-119(e)(1) above, and enforceable, on or beyond a
date t'''elye (12) thirty-six Q&l months from the date of the reEtQratiQR
agreemeRt permit issued for the restoration work. Release of any bond
shall be conditioned upon final approval by the guildiRg 9tIicial county
biologist of the restoration work. 12
~. CaEh @ECrQ'V: A,a eE~rg'" a~~gYat m~' be eEtabliERed iR tRe :ilR9lmt
re'luired with a federall~' iRsw:ed tiaa.R~i:d iREtimtiQR (RereiRafter
"eE~r9wee") iR a fgrm n~kR meetE tRe apprQ"al Qf tRe ~Q~'
attQme~'. TRe aG~9YRt Eh:;yl be admiRiEtered b~' iRe eE~rQ'Y.ee iR
aGGgrdaaQe 'vitR aR eg~r9')! agre~meRt eRt~red iRtQ bet'J.'~eR th~
~gUR.t~' aad tR~ F~rmit RQlder. TRe byildiRg Qfycial iE Rereby
:;tuthorized t9 ~at~r iato gYQR aa agre~m~at 9a b~Ralf 9fth~ Gg~'.
TRe agr~emeRt gRall, at miRimum r~'iyir~:
I) The eECrg')!e~ '"ill F~' t9 iR~ GQ~', Qr .E the CQ~'
dirertE, fQUgmiag tR~ de~bratiQR Qf a def:mlt, Eych amQ'lRtE
at> m~' be Re~eEE4f)' t9 CQlDplet~ the reEtQratiQR aCGQrdiRg
tg tRe te:r:m.E gf the r~t>tgratiQR agr~~m~at. TR~ t>YIR aeld iR
tbe :iCC9Um m~T hi: I@gll~i9 g9V~~~:u-g b~7 tRi gllildiRg
official, gut ia aQ eyeat Ehall tRe tiR.I teR (1 0) F~:t:~eRt b~
dit>bun:ed Yntil the 9Re ye:.ir t>'If' 'i'.'abilit3, rate aRd eXQti~
maiRteRaaGe re'iuiremeRtt> 9fmbt>e~ti9R (a3(]) and (<1) Raye
g~ea met.
2) TRe pe:r:m.it RoIder t>aall agree tg releat>e the eE~rQn.'ee frQm
all F~'meRtE made FUrEy:;mt tQ an Q:t:ger 9f tRe buildiRg
official aft~r a defaylt RaE beeR decl:;&l:ed b~' iRe bQArd Qf
~9U~' QgmmisgiQRerE.
(<1) IR the eyeRt the gyildiRg 9fy~ial dete:r:m.iReE taat the pe:r:m.it RQlger aa~
f:iiled tQ perfQml the reEtgratiQR '",grk a~cQrdiRg t9 the tet:R:lE 9f tRe
reEtgratigR agreemeRt 9r RaE f:iiled t9 ~9IaFl~' ',qth tRe teRRE Qf iRe
gUIM:mteeE Rer@iR aggye Eet fgrtR, tRe buildiRg gfti~ial, iR c9RE'.lltati9R
12 The options for use of a cash escrow and letter of credit have been eliminated and replaced with surety
bond which is easier to administer and ensures funds will be available even if property owner goes out of
business.
Page 8 of 10
with tRe ~gYm:~' :it;tgFRey, m~' t:ike gQe (1) gr mgre gf tRe fglhnHiQg
a~tigQE:
a. IQ tRe ~aEe gf tRe ~al!lR eE~rg,,' gr letter gf ~~git, tRe B'lildiQg
g[fid:d g}:),all ag'!iEe tae permit aglger:, iQ nq-itiQg, gf tae failJw,
giviQg tRe permit Rg1ger tai:r.ty (0) 9a:,'E tg ~'lre tRe ge[:mlt. If tae
penait aglger [ailE tg Q'.l~ tRe gefault, tRe BuildiQg g[fiQi:il m~T
re~gmaleQd tg tRe bg;R'd gf ~gym:j' ~gmmiEEigQerE tRat t1:ley ded~
the peaRit aglder iQ def:Rllt, and, ypgQ n.q-itteR Qgti:R~atigQ tg tRe
eECrg'Vee gr iEEyer gftae letter gf ~regit, Egme gr all gftae E'IHU: gf
mgQey gQ depgEit purEJl:mt tg tRe eE~rg'" agreemem gr letter sf
cr-edit ERall be diEbYfEed bj' tRe eE~rsnr.ee sr iEEyer Eslely apSQ tRe
authgrizatigR gf tRe byildiQg sfti~i:il, :md tRe eE~rg'Vee Qr iEEuer
Eaall pe releaEed by tRe permit aslder aE tg Eu~h p~'mem:(E).
b. IQ the eveRt gf a E'Jre~' b9Rd, the buildiQg gftkiall!laall iRfsrm t1le
b9RdiRg ~gmp:m~' iR 'witiRg sf tae debylt aad reGiyeEt that it taM
the ReceEEaf)' :;lctiSRE tg ~smplete the reGiyired reEtQr:atigQ.
(3) Default: All guarantees shall provide that if the permit holder failed to
complete required restoration work accordance with the restoration site plan and failed to
comply with the requirements of sec. 9 .5-119 (d), the director of planning in consultation
with the county attorney, may take the following action: Inform the bonding company in
writing of default by the permit holder and request that it take necessary actions to
complete the required improvements.'u
Section 6. Section 9.5-346 ("Transplantation Plan") MCC, is hereby deleted and
replaced with the following:14
Section 9.5-346. Miti~ation standards and county environmental land mana~ement
and restoration fund.
(a) Miti/?ation standards: The removal of any listed threatened, endangered,
commercially exploited, and regionally important native plant species and all native trees
with a diameter at breast height (DB H) of greater than four (4) inches shall require
payment to the County Environmental Land Management and Restoration Fund in an
13 This default language has been added similar to language for subdivision improvements in Section 9.5-
85.
14 The entire concept of on-site transplantation, except for restoration, and off-site transplantation has been
eliminated due to the problems with plant survivability. Instead, the concept is that for any clearing of
habitat, the permit holder will have to pay a mitigation fee into the County's environmental land
management and restoration fund. The County will be in a better position to direct such funds to where
they are needed the most. The three -to-one requirement for replacement of native plants within cleared
areas is consistent with Comprehensive Policy 205.2.9 for off-site transplantation.
Page 9 of 10
amount sufficient to replace each removed plant or tree on a two to one (2:1) basis.!? The
number, species, and sizes of trees and plants to be mitigated shall be identified in an
existing conditions report approved by the county biologist in accordance with the
minimum size requirements set forth in sec. 9.5-367.
(b) MitiKation fees determination: The mitigation fee shall be based on the
replacement cost of the specific plants and trees. The costs for replacement plants and
trees shall be based upon a price schedule maintained and updated annually by the county
biologist. This schedule shall be based on price quotes by at least three (3) private plant
nurseries within Momoe County or Miami-Dade County.
(c) County environmental land manaKement and restoration fund: The board
of county commissioners may establish a special revenue fund called the Momoe County
Environmental Land Management and Restoration Fund. Revenues and fees deposited in
this fund shall be used for restoration and management activities of public resource
protection and conservation lands, as specifically detailed by resolution of the board. of
county commissioners.~
v. RECOMMENDATION: The Planning and Environmental Resources staff
recommends approval of this text amendment.
15 The existing off-site transplantation requirement is 3 to 1; however, as on-site transplantation is no longer
an option, for purposes of mitigation the 2 to 1 ratio is more than sufficient to cover the costs of
replacement and installation.
16 This codifies the establishment of an environmental land management and restoration fund, which has
already been authorized by resolution of the Board of County Commissioners. Funds from this account
will not be used for land acquisition purposes and will be detailed by the Board of County Commissioners
through policy resolutions.
Page 10 of 10
ORDINANCE NO. -1004
AN ORDINANCE BY TIlE MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS AMENDING SECTIONS 9.5-119 AND 9.5-346. MONROE
COUNTY CODE; REVISING REQUIREMENTS FOR RESTORATION OF
LANDS CLEARED WITHOUT BENEFIT OF PERMIT OR BEYOND SCOPE
OF A PERMIT; DELETING TRANSPLANTATION REQUIREMENTS AND
SUBSTITUTING WJ11I REQUIREMENTS FOR PAYMENT INTO THE
MONROE COUNTY ENVIRONMENTAL LAND MANAGEMENT AND
RESTORATION FUND; PROVIDING FOR THE REPEAL OF ALL
ORDINANCES INCONSISTENT HEREWIm; PROVIDING FOR
INCORPORATION INTO THE MONROE COUNTY CODE OF
ORDINANCES; PROVIDING FOR SEVEIlABILITY; AND PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS, the Board of County Commissioners have approved an ordinance amending
Section 6-29~ Monroe County Code (MCC), to increase the fees for after-tile-fact permits, including
the provision of mitigation fees for unlawful f1Iling ofwedands; and,
WHEREAS, the Growth Management Division staff was further directed to prepare
amendments to Section 9.5-119, MeC, to strengthen the standards for restoration ofhabital areas that
are unlawfully cleared without benefit of a permit; and,
\VHEREAS, in reviewing Section 9.5-119, MCC, and related regulations, the Growth
Management Division staff dctennined that cbange$ in the transplantation requirements in Section 9.5-
346, MCC, for on-site and off-site mitigation of cleared habitat areas were warranted as transplantation
has not been proven to be a successful or cost-effective measure; and,
WHEREAS, the Growth Management Division staff has prepared amendments to Section 9.5-
119, MCC, to strengthen the restoration requirements and increase the mitigation requirements for the
clearing of lands without benefit of a pennit~ and,
WHEREAS, the staff has also prepared amendments to Section 9.5-346. MCC, to replace
transplantation as a mitigation option in the clearing of habitat with a requirement for payment of
mitigation fees into the county's "Restoration Fund", now renamed the "Environmental Land
Management and Restoration Fund"; and,
WHEREAS, these proposed amendments to the restoration standards of the county's
regulations arc intended to ensure that such lands are fully restored and to discourage unlawful clearing
activity and to provide a dedicated funding source for restoration and management of public
conservation land; and,
WHEREAS. the Board of County Commissioners has reviewed the proposed amendments to
Sections 9.5-119 and 9.5-346, recommended by the Orowth Management Division; now therefore,
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA:
Document) S
Paee f of7
Section 1.
The title to Section 9.5-119 is hereby amended as follows:
See. 9.5-119. Environmental restoration standards .... awe.eats.1
Section 2. Section 9.5-119 (a), MCC. is hereby amended and reorganiud into paragraphs (a) and
(b) as follows:
(a) In the event any land clearing eeews is occurring on a site ami whieft _ clearing is
outside the scope of any permit issued or for which no pennit was issued, thee the building official m:
other authorized county official. shalJ issue a stop work order~ If any land clearing has occurred for
which no pc(nnit has been issued. such activity shall be subiect to code enforcement proceedings under
clulDter 6.3.3 Except for issuance of an approved after-me-fact pennit fOT restoration. the folJowin,
pennit application restrictions shall applY upon a stop work order. pursuant to c~er 6.9. OT. a notice
of violation pursuant to chapter 6.3. until the restoration conditions of paragraph (b) are met:4
( 1) No application for a building pennit apolication shall be orocessed or issued for the
subiect site. except as orovided for in paragraph (c).
(2) No ROGOINROGO application for the subject site shall be ~ce.pted.
(3) Any ROGOINROGO application for the subiect site currentlv in the ~Slem shall
automatically be withdrawn and. if it is resubmitted. it shall be considered a "new"
application. requiring payment of anpropriate fees and receivinl! a new controllinll date.
(b) The stop work order. if applicable. wRieD and the permittimz restrictions of oara~ph
(a) above shalJ remain in full force and effect on the site, exce,pt where a notice of violation is not
sustained bv the special master. until all of the following restoration conditions have been met for
1D9SC portions of the site that can not t>e pennitted for clearing: ~
(1) Restoration of the site to its pre-violation grade in accordance with a restoration site
'Plan aoDroved by the county biologist.
(2) Replacement of the trees, shrubs. and grolUldcovers on the unlawfully cleared site with
native R!ADLspecies as appropriate to the site unlawfully cleared and. payment of a
mitigation fee pUr.\uant to sec. 9.5-346 to comoensate for the enviro~ental damage for
removal of those native Dlants.6 The trees shall be ofa size and maturity commensurate
to the unlawful clearing as determined by the county biologist. The native species mix
I Restoration agreements are being eliminl!lt~ as the proposed language will not allow ~uch agrecmelllS whicb allowed slOp
worle orders to be removed Or pcnninins even though restoration had not taken place.
2 This revisioR provides clear authority to code enforcement officers or other duly aU1hof12.ed County officials to place stop
work orders.
J This revised language reflects the fact that often times unlawfully clearing has aln:ady occurred befOR a stop work order
can be placed.
· The penalties for unlawful clearing have been increased to include remo...al trom the permit allocation system and halt on
any work or pennitting until restoration is comp~td.
~ This language sptdfscaUy refers to tho:le areas unlawfully cleared that can Rot be permitted and must be restored, which
would be accomplished through an after-the.fact penuit. In conjunttion with paragraph (c:). it allows for an existing
building permil 10 be revised or a building permit application submitted that would allow for dear.ing of those portions of
the propert)' unlawfully cleared.
, If land is unlawfully cleared, only that portion of the site that C8I1 oot be pemlitted for clearing wiJI need to be restOred
Document 1 S
Page 2 0(7
shall consist of the approximate percentages of the predominant tree, shrub and
groundcover species on the site unlawfully cleared prior to the violation. but if any
endangered or threatened tree. shrub or groWldcover species were unlawfully cleared,
then those species shall be replaced with plants of a size and maturity commensurate to
and related to the unlawfuJ clearing as determined by the county biologist regardless of
predominance.
(3) All replanted trees. shrubs. and groundcovers shall be located on site te tile IBMtmam
eJ{teftt pessiWe within the S8Jlle areas that were unlawfullv cleared in accordance with
an approved restomtion site plan.7 If all &f the RtJ'laeemeat pl8RtB ,---at he physisaUy
feplaBtetl aft site, the IemaiRder shall he deRated tG l:Ile 88l11lfy 18 MeteR ef mana&<<
PyeBS JlHlEIs or, at the dis8feti9R sflbe ee1HHy, to a V'lilling ge\'eftHlleBt age~ 9f IUihlis
ar pA\'ate eoosef\'8tieB gF811' te fe~ere JMMie laBds . AltemaWJely, en amEMtftt &f
meRe}' 8l}Y8I Ie the lest af the replaeemeftt 8est IB&f he piKed ill 88. eseIS'.V &eeMIBt Ie
he ysed &y di8 SSWlty te rest9fe Sf Jll!l&D8ge ,Helie 1_$.:. or, at t:h. di8SFlSi98 of the
e&\Hlf}'. hy a !J.i1liBg geviHUMBt agell~y or a pubJie 9f r-rivet, e8BSef'\ltltie8 8f8l:lp fer
eft' site repJaeem8ftt sf the affeeted baBiSH. TIle SeYR~ shall ad&pt aElmieisff8thre
"raGed_as fer the RWlftll.gemeftt of 1Ile eesrs'JI aeeeURt.
(4) Except as expressivelY authorized by the county bioloflist pursuant to an approved
phased restoration site plan. Aall invasive exotic plant species, as deserihect ill ehapter
VII. peges 163, 170. 178, aM 1&), wlWfte II, Menf8e CsYMy C8mpreheBsi'le lIREt
Use PlM on the most current Florida Exotic Pest Plant Council's list of Category I or II
invasive exotic plants shall be continuously removed during the three (3) eee-year
period described in SYMeetisR 0) Rsragraph (d) below.
(5) A monetarY i!uaran1ee for the restoration work as stipulated in paraMlph le) shall be
provided in the fonn of a surelY bond.
SectioD 3. A new Section 9.5-J 19 (c), MCe, is hereby created as follows:
(c) Where cl~aring of habitat is pennitted. a buildint:! oennit application or revised oennit
application may be processed provided such pennit specifically involves the clearing of any oortion of
the land which ha~ been unlawfully cleared. The subiect buildinsz permit shall not be issued 14Dtil the
provisions of paragra,ph (b) above have been fulIv met for that ponion of the site on which the
unlawful clearin~ has OCCUlTed and which must be fully restored. I
Section 4.
follows: 9
Section 9.5-119 (b), Mee, is hereby relabeled as paragraph (d) and amended as
~ At least eighty (80) percent of the trees replaced, as described in suhseefiea sec. 9.5-119
(a)ili}(2), shall be viable at the end of a S'lV:irJ8 fer 8 eRe- three (3) year period eieF from the dale of
7 The concept of off-site transplantation is l10t viable based on tht: experience of Miami-Dade COIInty and the Monroe
COUDty biologists.
a This provision recognizes the need to allow for revisions to an ex.isting pumit or subminal of a pennit application to
authorize after-the-fAct clearing. Even ifthese permit holders were .oot required to reslOR any oftbe propeny, they would
still face monetary penalties under she provisions of Stetion 6-29, MCC.
9 The ooe-year time period has beeD expanded to three-years, which is a much more realistic time period to ensure plant
growth and viability.
DocumentlS
Page:; 00
the final inspection of the restoration work 188t replalltiBg; however. dead or dying trees may be
replaced. subject to prior approval by the county biologist. during the 6fte- three (3) year period in
order to assure the eighty (80) percent minimum is met at the yeer's end of three years. The restoration
work shall be insoected by the countv biolo2.i~t on an annual basis during the three-vear period. He
may direct that dead or dying trees be replaced as he deems necessary to ensure theeightv (SO) percent
standard will be met at the end of the three vears. All invasive exotic plant species, as described in
Vahee I, Menrge CelHlly CampJ1eh8flBive PIBIl sec. 9.5-119 (8)(4) above, shall be continuously
removed during the eRe- three (3) year period described above. unless the county biologist directs
otherwise.
Section S. Section 9.5-119 (c), MCC, is hereby relabeled as paragraph (e) and amended as follows:
Ee) IB lieu of e91RpletieR efthe resrorati88 ite_hed ill StlhseeBeBS ~ aM (h). the bWldiftg
eAieial. may lift the stap '~vefk 8Ner if the fellavJiftg terMS !Wi eeB6itiens are IBM:
(1) The l'eRBlt heWer shall eater iIlt8 a binding reSferalieR agreemeRt lIlY,..",.,)' e&?Je-"'-tiBg
w4th 1he eeWtly fbeI. Hi 6oBsidef8tieR fer *8 lifting of the gtep '.''elk er_. die peRRH
RaIder \\'iR festeR die \Iftl&'I...rfWly ele&fed "repeRy i8 the IB8BBef deseribed i8
sH8seetiens (~) aM (8) aes8RIHtg te tile S0ftMale letlHifeEl hy Ibe ~HiJ~ift, effieial. The
MiiltIHtg aftk.ial is hetshy allthoft~EI Ie eatElr iAte !Nell &8 agreelftent 88 heh&lf ef the
e9l1ftly .
(e) The pennit holder shall be reauired through a surety bond. to guarantee the satisfactorY
completion of the restoration work in accordance with the approved restoration site plan and the
survival of at least eighty (80) percent of the replanted trees for a period of at )ea.~ three (3) years after
the issuance of the after-the-fact permit for the restoration work. to
(1) Guarantee amount: The amount of the restoration ~arantee shall cover the full costs
of the restoration work described in sec. 9.5-119 (b) (1) through (4). The estimated
costs of the restoration described in sec. 9.5-119 (b) shall be the swn of a and b.
below: 11
a. One hundred (100) percent of the estimated cost of the restoration described in
SH"eetieft ~. 9.5-119 ftOO2}(l) as estimated by the county!e 4epl:l1lBeBt &f
"H"lie werks enllineer; or alternatively. one hundred~~) illIDJ>ercent of
the price of a binding contract for the restoration work required by suhseeti8ll
sec. 9.5-112 ~1) entered into with a contractor qualified to perfonn such
work.
b. One hWldred (loo) percent of the estimated cost, as estimated by the building
official~ of perfonning the restoration work described in wbSeefieR Ee) sec. 9.5-
119(b)(2) throug11-(4); or, alternatively, one hundred:t!fiI ~ illQl.percent of
the price of a binding contract for the restoration work described in suhseeli8Jl
10 The ~UlTent regulations do DOl require monetary guarantees except in the case of a restoration agreement which have been
eliminaaed in the proposed ordinan". Tbis guarantee: is needed to ensure rCSloration is complewdand the survivability of
the replacemeot plants is ensured.
II The estimared costs to base the amount of swet)' bond is hiper for amounts based on constrUCtiOn ConuactS to provide
some protection for the County in case of a default where the construction contracts may 001 retlect tNe costs.
Document. 5
Pagll40f7
fB sec. 9.5-119 (b)(2) through (4) entered into with a Florida licensed landscape
architect.
8. Letter ef ereEltt: The pefMit heWer may file a ssraight eeMlMreiallebr sf elellA,
ia 8 faRll aeeeptahla telAe eeUBty affefM)". The letter sf ereElit Blust pfG'.ise that
the iSS\ling M811.siel instifuC!9R '}lill pay Ie tBe e8~, ef 85 Ute eell8fy sweets.
fel1e\\iBg IIselaratioa sf a "small, Sltek IIIMHMS as IB8Y he Reeessery Ie
eemplere tee .restef8fiaB aseaftiiHg te ~ teFlB6 af the agreemeM. The letter Mall
Be iHeveeable fer RveiMy tow (2 () BlaHtM (18m the date of the feBleRtiaft
agreemeBl btK May. at the diseNtie8 sf Ifte htiilfJHtg sflieial, he rssuied
~ware as wefk is eemplete"; but in ne sr:eat ..1 the fiBal tea (19) ,eHem
Be .release" UBtiI the 8M year sun'iva9ili~ f85e aRd ellatie --hteDflMe
Feftwem8Rts ef st!hseetiaB (a)(3) anfJ €4) ha." heeR met. 'fM ,eRBit holder !IhBIl
81se agree to teleaee .e issuer "alB all ,aymeBf5 !BaEte aRer the deel8fMiell ef
fkfault hy tfie hewd sf eeYBfy s8lBlB:issif)fters.
lr.Q} Surety bond: The surety bond shall be in a form and with a bonding company approved
by the county attorney. The bond shall be payable to the county in the amount of
estimated total cost for ~storation work a.c; calculated in sec.9 .S-119( e)( n above. and
enforceable, on or beyond a date twelve t 1 ~ thirtv-six 00 months from the date of the
r:estefaQeB apeemeAf pennit issued for the restoration work. Release of any bond shall
be conditioned upOn final approval by the h~ilding effieial countv biolo~isl of the
restoration work.l~
c. Cesh 8SSF&",V: An eseretv aeeeUftt may he e6taIJlished iB file BlBellBt require~
'!xi. a federally iRS_eEl RR8Rsial iMtitutia8 (hefEliRefter f1eaer.eweefl) ill a fa..
wkieh lR8ets the appl'8~.~ sf the eaumy alteJllley. The aese\Mlt shall he
admiBistered by 1M eserev:ee ill aee0fSaASe '.vtUl 8B eselow agre8M8Ilt enteFed
itne betweeH the eeYlKy and the permit heJder. The 9YilEliRg efReial is herehy
authorized te Mter iftt9 syeh _ a8J'eemeBt ea heh&lf sf me e0ooty. ne
agfeellleat shall, at miftiRuuB req~ire:
1) Tae eser&Vi'ee ,'All pay to the eeliMy, er 85 the ee\Hlty fJifeets, folleVJiag
tfte aeel8fftli8B ef a defMllt, gush ameunts as May he Beeessary te
oomplete the rester-au88 BeeerdiBg Ie the tefIBS ef the Fe&terMieR
agreement. The SOl hel" iB 1M ooee\lftt may he redueed OO'lJW..J8ftI hy
the building effieial. but in Be 8r.'88t !lholl the it... (8ft (I Q) pereeBt he
distn.lssEl _tit tile eHe year 9WVivahitity fate aM eJiatie maintefteaee
f.iremettts efwhseetiaB (a)(3) and (4) _.os heeR met.
2) The permit liehler soall agHe t9 release the 8SeP8":J8e fl8. all peymeRts
1M. pwsuaBt te 8B eMer ef the 9YilElittg eflieial ... a defaQlt MS Beell
seelare4 by tile B8&1'ii1 of eeuMy eemmissieftSFS.
(4) IB Ute e'/eRt the htHlfJiBg sffieial Eletetmi:Bes _ die Jleftftit kelEler has failed to perf8fB\
thtl ro3t8f8tiSB walk aeeeNiiBg t8 dte telms of the re91eFMleB agreemeRt 9r has failed te
12 The options for use of a ca.,h escrow aad lener of credit have been elimina1ed and replaced with surcly bond which is
easier to adminill.1.er Ilnd ensures funds will be available even if property owner goes OUl of business.
Documentl S
Page 5 of7
selRply \\'it:k the teRftS af the gH6ftUltees hereiB sheve set reM. lite ~J"ing effieial. is
eall5\lketiea ,'!Jim me OOuMy demey, may mite eM (1) 8f R\e~ af .. felle.Mag
aese8B:
8. 1ft the S868 eftlte e89k SS6f&".1'} ef leMer ef ere4it, die inlildiBg eftieifll ~"iln aQ.?/i98
the permit helM', is. wriliag. ef ~ failwe. ~vtBl the peRBit helser 1hi~ (39)
Elays te ewe the aef8HIt If du~ peRBit Belser fails Ie ewe the Eleftwlt, tile
lMJiWiBg 8ftieial M8Y MS81n1Reftd Ie t8e heeN sf ee\lBty eemmi5sie&efS that
tMy deelare &8 )'eftBit balder is tier_It, aM, apeD v.nl1eR RetiRIil.i8ft te ..
8sere.:;ee 91 iS9\ief af the letter sf sNdil. Same ar aU er tile S\UB5 af 1IleM)' ell
depe:sit pUfS~1ftt 19 the eserew agreellleRt af leaer af credit ~r-I' he asbW3ed hy
die esef&'l\'Se af issuer selely Yp8ft die SllthePi_6ft ee tM BlIilaiBg effieiel. _
the a&ers'.\'ee 8f iss~er sMll he felee&e8 &y die peftftit Bel'" as ~ 8aeR
p&ylll8BI(~).
h. IB lite "veft( ef a Stlft'l'Y heM, the baildiRg eftieiel shall i8€&Jm the beAding
eSMpMy i8 ....'PittBg sf the defaWt &BEl FetllleSl that it lab the see8898fY aetieBs
19 samplers the flil'l1Hfed resta,sd8R.
(3) Default: All guarantees shall provide that if the permit holder failed to comDlete
required restoration work accordance with the re~toration site plan and failed to comDJv with the
requirements of sec. 9.5-119 (d)' the director of planning in consultation with the COWlty attorney. may
take the following action: Inform the bonding company in writipg of default bv the permit holder and
request that it take necessary actions to complete the required improvements. 13
SeetioD 6. Section 9.5-346 ("Transplantation Plan") MeC. is hereby deleted and replaced with the
following: 14
Sedion 9.5-346. Mine.tion staDdards and ~ountv cDvironmeata) land maDaeemeDt aDd
restor-ation fund,
ia) Mitil!ation standards: The removal of allY lil\ted threatened. endangered. commercially
exploited. and regionally i.rQportant native plant species and all native trees with a diameter at breast
beiGht (DBHl of areater than four (4) inches shall require payment to the County Environmental Land
Management and Rest~ration Fund in an amount sufficient to replace each remQved plant or tree on a
two to one (2: 1) basis. S The number. species. and sizes of trees and D18.915 to be mitil.!ated shalJ be
identified in an existin2 conditions report ~proved by the county biologist in accordance with the
minimwn size requirements ~et forth in sec. 9.5.367.
(b) Mitigation fees determination: The mitiaation fee shall be based on the rej)lacement
cost of the specific plants and trees. The costs for replacement plants and trees sball be based u,pon a
13 This default language has been added similar to language for !Iubdivision improvements in Section 9.5-85.
14 The entire concept of on-sire transpJantation. except for restoration, and off-l'it4! transplantation has been elimioaled due
to the problems with plant survivability. Instead. the COiK:ept is that for any clearing of babitat, the permit bolder will have
to pay a mitigation fee ioto the COUDty'S e.ovironmentaJ land managemenl and r~1ontio.Q fund. The County wiJl be in a
better position to direct such funds to where they are needed the most. The three -tc>-one requiremeOl for replac:ement of
native plants within cJeared areas is conSdcent with Comprehensive Policy 205.2.9 tOr off-site transplantation.
I' The existing off-site transplantation requirement is 3 to I; however, as on-sile IT'lInsplantation is DO longer an optiOD. fOt
purposes of mitigation the 2 to I ratio is more than sufficicOl to cover the costs of tcphlcement and iDstaUatioo.
Document 15
Page 6 of7
price schedule maintained and updated annually bv the county biologist. This schedule shall be ba.~
on price QUOtes by at least ~ (3) private plant nur:>eries within Monroe Countv' or Mismi.Dade
County .
it) CQunty environmental land management and restoration fund: The board of county
~JDmissi~ners may establish a special revenue fund called the Monroe County Environmental Land
Management and Restoration Fund. Revenues and fees dCDOsited in this fund shall be used for
restoration and mana2ement activities of DubHe resource protection F conservation lands. as
specifically detailed by ~lution of the board. of cOW}tv' commissioners. I
PASSED AND ADOPTED by the Board of County Commissioners of Monroe COWlt)'t
Florida. at a regular meeting of said Board held on the day of . AD. 2004.
Mayor Murray Nelson
Mayor Pro Tern David Rice
Commissioner Charles "Sonny" McCoy
Commissioner George Neugent
Commissioner Dixie Spelw
(SEAL)
Anest: DANNY L.KOLHAGE. Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By
By
Deputy Clerk
Mayor/Chairperson
MONROE COUNTY ATTORNEY
~e~ASTOFORlI:
~
JOHN R. COLLINS
~UNTV ATTORNEY
DlIle oC- o~l D)'
16 This l:odifaes the establishment of an environmental land management and restoration fund. which has already been
authorized by resolution of the Board of County Commissioners. Funds trom Ibis account will not be used for land
acquisition purposes and wilJ be detailed by the Board of Counl)' Commissioners through polk)' resolutions.
DoaJmeIlt I S
Page 7 of7
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: June 16 , 2004
Bulk Item: Yes No X
Division: Growth Management
Department N/ A
AGENDA ITEM WORDING:
Public hearing to adopt an ordinance amending Section 9.5-119 (Environmental Restoration
Standards and Agreements) and Section 9.5-346 (Transplantation Plan), Monroe County Code
(MCC) to provide more effective standards for restoration of habitat, eliminate transplantation as
a mitigation option and replace it with payment of mitigation fees into the County's "Restoration
Fund" to be renamed, and an increase in said fees to act as a stronger deterrent to illegal clearing
and development. [One hearing only required.]
ITEM BACKGROUND:
Concerns have been raised regarding the illegal clearing of environmentally sensitive lands and
development occurring without the benefit(s) of permits. As a result of these concerns, an
ordinance to amend Section 6-29, Monroe County Code (MCC) was drafted and approved to
increase fees for after-the-fact (ATF) permits, including the provision of mitigation fees for
unlawful filling of wetlands. As a result of the amendment to Section 6-29, Growth Management
Division staff was directed to prepare amendments to Section 9.5-119, MCC, to strengthen the
standards for restoration of habitat areas that are illegally cleared. Staff was also directed to
amend Section 9.5-346, MCC, to change the requirements for transplantation to eliminate
transplantation as a mitigation option. This change will provide a dedicated revenue source for
supporting the County's management of its conservation lands.
[Note: There are two ordinances included in BOCC packet. One contains the Planning
Commission's recommendation to withhold permits on any property where illegal clearing
occurs for three years.]
PREVIOUS RELEVANT BOARD ACTION: N/ A
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATION:
Approve
TOTAL COST: NA
BUDGETED: Yes
No
COST TO COUNTY: NA
SOURCE OF FUNDS: NA
REVENUE PRODUCING: Yes No X AMOUNT PER MONTH YEAR
APPROVED BY: County Attorney _ OMB/Purchasing _ Risk Management_
DIVISION DIRECTOR APPROVAL: X ~
DISPOSITION:
X Not required
AGENDA ITEM # K1:_1
/lev i~~
DOCUMENTATION: Included To follow
i'({
BOCC STAFF REPORT
Page 1 of 10
MEMORANDUM
TO:
The Monroe County Board of County Commissioners
FROM:
K. Marlene Conaway
DATE:
May28,2004
MEETING DATE: June 16,2004
RE: REVISIONS TO MONROE COUNTY CODE, SECTION 9.5-
119 and 9.5-346
I. BACKGROUND
Concerns have been raised by the public, the Monroe County Board of County
Commissioners (BOCC) and County staff regarding the illegal clearing of
environmentally sensitive lands and development occurring without the benefit of
permit(s). As a result of these concerns, an ordinance to amend Section 6-29, Monroe
County Code (MCC) was drafted and approved to increase the fees for after-the-fact land
clearing permits, including the provision of mitigation fees for unlawful filling of
wetlands.
In addition to the aforementioned ordinance, Growth Management Division staff were
directed to prepare amendments to Section 9.5-119 (Environmental Restoration
Standards), MCC, to strengthen the standards for restoration of habitat areas that are
unlawfully cleared and as a result of that, staff has determined that changes in the
transplantation requirements in Section 9.5-346 (Mitigation Standards and County
Environmental Land Management and Restoration Fund), MCC, for on-site and off-site
mitigation of cleared habitat areas are warranted in conjunction with the changes to
Section 9.5-119.
II. ANALYSIS
The illegal clearing of and ensuing development on environmentally sensitive lands in
Monroe County has continued to occur in spite of fees and fines associated with after-the-
fact permits. The existing fee schedule was determined to not be effective in preventing
illegal clearing and development. The protection of environmentally sensitive lands is
supported strongly by the Year 2010 Comprehensive Plan and evidenced by the proposed
moratorium on development in certain Tier I lands.
This text amendment will provide for more effective standards for restoration of habitat
areas, as well as to eliminate transplantation as a mitigation option and replace it with a
Page 2 of 10
requirement for payment of mitigation fees into the county's "Restoration Fund", to be
renamed the "Environmental Land Management and Restoration Fund. Additionally, this
change will provide a dedicated revenue source for supporting the County's management
of its conservation lands.
These changes are consistent with the Goals, Policies, and Objectives of the Year 2010
Comprehensive Plan. As an "Area of Critical State Concern", Monroe County is also
governed by Chapters 9J-5 and 9J-12 of the Florida Administrative Code (F.A.C.) and
Chapter 163 of the Florida Statutes. The proposed text amendment is consistent with 9J-
5.013(2)(c) and 9J-5.013(3)(b). The proposed text amendment will further the following
Principles for Guiding Development:
. 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;
and
. To protect upland resources, tropical biological communities, freshwater
wetlands, native tropical vegetation, dune ridges and beaches, wildlife and
their habitat; and
. To limit the adverse impacts of development on the quality of water
throughout the Florida Keys.
III. FINDINGS OF FACT
1. A text amendment to Section 9.5-119, MCC, is needed to strengthen the
restoration requirements and increase the mitigation requirements for the clearing
of lands without a permit due to the continued occurrence of illegal clearing.
2. A text amendment to Section 9.5-346 is needed, in conjunction with the text
amendment to Section 9.5-119, to eliminate transplantation as a mitigation option
and replace transplantation with a requirement for payment of mitigation fees into
the county's "Restoration Fund", hereby renamed "Environmental Land
Management and Restoration Fund."
3. Staff finds that the proposed changes are consistent with Section 9.5-
511(d)(5)b.(v) "recognition of a need for additional detail or comprehensiveness.
4. Staff finds the proposed changes to be consistent with the goals, objectives, and
policies of the Monroe County Year 20 I 0 Comprehensive Plan.
5. Staff finds the proposed changes consistent with F.A.C. Chapters 9J-5 and 9J-12,
Florida Statutes, Chapter 163, and The Principles for Guiding Development.
IV PROPOSED TEXT
See next page
Page 3 of 10
Section 1.
The title to Section 9.5-119 is hereby amended as follows:
Sec. 9.5-119. Environmental restoration standards aDd aggnlRiDts!
Section 2. Section 9.5-119 (a), MCC, is hereby amended and reorganized into
paragraphs (a) and (b) as follows:
(a) In the event any land clearing Qc~\m: is occurring on a site and ~ such
clearing is outside the scope of any permit issued or for which no permit was issued,
~ the building official or other authorized county official, shall issue a stop work
order ~ If any land clearing has occurred for which no permit has been issued, such
activity shall be subject to code enforcement proceedings under chapter 6.3.:? Except
for issuance of an approved after-the-fact permit for restoration, the following permit
application restrictions shall apply upon a stop work order, pursuant to chapter 6.0,
or, a notice of violation pursuant to chapter 6.3, until the restoration conditions of
paragraph (b) are met::!
(1) No application for a building permit application shall be processed or
issued for the subject site, except as provided for in paragraph (c).
(2) No ROGOINROGO application for the subject site shall be accepted.
(3) Any ROGOINROGO application for the subject site currently in the
system shall automatically be withdrawn and, if it is resubmitted, it shall
be considered a "new" application, requiring payment of appropriate fees
and receiving a new controlling date.
(b) The stop work order, if applicable, v.~ich and the permitting restrictions
of paragraph (a) above shall remain in full force and effect on the site, except where a
notice of violation is not sustained by the special master, until all of the following
restoration conditions have been met for those portions of the site that can not be
permitted for clearing:5
1 Restoration agreements are being eliminated as the proposed language will not allow such agreements
which allowed stop work orders to be removed or permitting even though restoration had not taken place.
2 This revision provides clear authority to code enforcement officers or other duly authorized County
officials to place stop work orders.
3 This revised language reflects the fact that often times unlawfully clearing has already occurred before a
stop work order can be placed.
4 The penalties for unlawful clearing have been increased to include removal from the permit allocation
system and halt on any work or permitting until restoration is completed.
5 This language specifically refers to those areas unlawfully cleared that can not be permitted and must be
restored, which would be accomplished through an after-the-fact permit. In conjunction with paragraph (c),
Page 4 of 10
(1) Restoration of the site to its pre-violation grade in accordance with a
restoration site plan approved by the county biologist.
(2) Replacement of the trees, shrubs, and groundcovers on the unlawfully
cleared site with native plant species as appropriate to the site unlawfully
cleared and, payment of a mitigation fee pursuant to sec. 9.5-346 to
compensate for the environmental damage for removal of those native
plants.6 The trees shall be of a size and maturity commensurate to the
unlawful clearing as determined by the county biologist. The native
species mix shall consist of the approximate percentages of the
predominant tree, shrub and ground cover species on the site unlawfully
cleared prior to the violation, but if any endangered or threatened tree,
shrub or groundcover species were unlawfully cleared, then those species
shall be replaced with plants of a size and maturity commensurate to and
related to the unlawful clearing as determined by the county biologist
regardless of predominance.
(3) All replanted trees, shrubs, and groundcovers shall be located on site ~
m~imum ~xt~m: FOgEiBI~ within the same areas that were unlawfully
cleared in accordance with an approved restoration site plan. I If all 9f tlle
reFla~~m~m: FlamE ~:MlRgt Be Fl:J.~'gk411y J:~Flanteg 9R gite, il:J.e remaiHger
81:1411 Be ggR4t~g tg tl:J.e ~gl.l~' tg reEtgre gr maR~er F~lk laRgE 9r, at iRe
gigcretiQR gf tl:J.e ~911Rt~', t9 4 'villiRg ggYeRYR~Ht ageR~~' 9r FYbli~ 9r
priyate ~gRger.'atiQR gJ:9Yp tg reEtgre F~li~ laRgg . .^Jtemati'.'ely, aa
amg"Bt of mOll~~' ~qual tg tR~ r~Et of ifl~ J:~Fb~~m~Ht Cggt ~ Be pb~eg
~ an egcrg'1,' accoum: to B~ "geg BY th~ CglW:,' t9 regtgr~ 9r m:inag~ pyblic
~.: Qr, at the giE~retigR 9f th~ ~OY~', BY a ,villiRg ggY~mmem: age~y
9r a FYt?lic gr privat~ C911ger.'ati9R grgup fur 9ft' Eit~ r~placemeat 9f tlle
:!lffect~g hasitat. Tl:J.~ ~9uBt~' gRall aggf't 4gmiRiEtr4ti,'e f'r9~egmeE fur iRe
m:inag~meRt 9f t1:}~ ~ECrgW acclmBt.
(4) Except as expressively authorized by the county biologist pursuant to an
approved phased restoration site plan, Aall invasive exotic plant species,
a8 geEcribeg iR ch~t~r VII, pageg 1 gJ, 170, 172, aRg 1 2J, '.'9Iume II,
Hom-ge CO'.lBt~' ComprehellEi17e l.aRg PEe Plan on the most current
Florida Exotic Pest Plant Council's list of Category I or II invasive exotic
plants shall be continuously removed during the three (3) ~year period
described in gJwg~~tioR 0) paragraph (d) below.
it allows for an existing building permit to be revised or a building permit application submitted that would
allow for clearing of those portions of the property unlawfully cleared.
6 If land is unlawfully cleared, only that portion of the site that can not be permitted for clearing will need
to be restored
7 The concept of off-site transplantation is not viable based on the experience of Miami-Dade County and
the Monroe County biologists.
Page 5 of 10
(5)
A monetary guarantee for the restoration work as stipulated in paragraph
(e) shall be provided in the form of a surety bond.
Section 3.
A new Section 9.5-119 (c), MCC, is hereby created as follows:
( c) Where clearing of habitat is permitted, a building permit application or
revised permit application may be processed provided such permit specifically involves
the clearing of any portion of the land which has been unlawfully cleared. The subject
building permit shall not be issued until the provisions of paragraph (b) above have been
fully met for that portion of the site on which the unlawful clearing has occurred and
which must be fully restored.!!.
Section 4. Section 9.5-119 (b), MCC, IS hereby relabeled as paragraph (d) and
amended as follows:9
W@ At least eighty (80) percent of the trees replaced, as described in
gl.1bg~~tigR sec. 9.5-119 W@(2), shall be viable at the end of a gur.'iy~ fgr ~ ~ three
ill year period ~ from the date of the final inspection of the restoration work lasi
rephmtiRg; however, dead or dying trees may be replaced, subject to prior approval by the
county biologist, during the ~ three (3) year period in order to assure the eighty (80)
percent minimum is met at the )'@:.\f'E end of three years. The restoration work shall be
inspected by the county biologist on an annual basis during the three-year period. He
may direct that dead or dying trees be replaced as he deems necessary to ensure the
eighty (80) percent standard will be met at the end of the three years. All invasive exotic
plant species, as described in V91Ym@ I, H9Ilrge Cg~T C9m'pr~a@Rgiy~ Pl:m sec. 9.5-
119 (a)(4) above, shall be continuously removed during the ~ three (3) year period
described above, unless the county biologist directs otherwise.
Section 5. Section 9.5-119 (c), MCC, is hereby relabeled as paragraph (e) and
amended as follows:
(~) IR li~l.1 gf ~gmpl@ti9R gf ta~ r@Etgr:RigR d@g~ribed iR Eyl;n:e~tigRg (~) aRd
(b), tl:1e bl.1ildiRg gffid:d ma~T lift ta@ gtgp 'vgrk grder if the f.911g'viRg t~rmE and
~9RditigRg :!Y.'e m~t:
(1) Th@ p@l1Rit agld@r Ea:ill @at~r iatg a biRdiRg r~gtgr:itigR agIeemeRt
ml.1tl.1~I)' ~gY@R:iatiRg 'vitl:1 ta~ ~g'~T tl:1:it, iR ~gRgider:itigR fgr tl:1e liftiRg
Gf the Etofl 'I'I7grl<: ord~r, thi p~rmit hgldir -nqll ~@gtgri the uRl:tP'I7fyl1~7
d~ar@d }Ugp~rt~T iR tl:1@ manner d~g~rib~Q iR EybE~~tigRg (a) :iRQ (b)
accgrdiRg t9 ta~ E~a~dyl~ r@'!l.1ir@Q b~T ta@ bl.1ildiRg gftkial. Ta@ g'lildiRg
8 This provision recognizes the need to allow for revisions to an existing permit or submittal of a permit
application to authorize after-the-fact clearing. Even if these permit holders were not required to restore
any ofthe property, they would still face monetary penalties under the provisions of Section 6-29, MCC.
9 The one-year time period has been expanded to three-years, which is a much more realistic time period to
ensure plant growth and viability.
Page 6 of 10
Gffi~ial ig l:um:g~' :;mthGriziQ tG iRtir iatg gU~R :ill agriilRiat 9R BiRalf gf
tl:li ~gunt~,'.
(e) The permit holder shall be required through a surety bond, to guarantee
the satisfactory completion of the restoration work in accordance with the approved
restoration site plan and the survival of at least eighty (80) percent of the replanted trees
for a period of at least three (3) years after the issuance of the after-the- fact permit for the
restoration work. IU
(1) Guarantee amount: The amount of the restoration guarantee shall cover
the full costs of the restoration work described in sec. 9.5-119 (b) (1)
through (4). The estimated costs of the restoration described in sec. 9.5-
119 (b) shall be the sum of a and b, below:.!.!
a. One hundred (100) percent of the estimated cost of the restoration
described in EUBi~tigR sec. 9.5-119 W~)(l) as estimated by the
countY'E Qip:RllRim 9f pyQli~ 'XgrkE engineer; or alternatively, one
hundred- fifty 8-00) (150) percent of the price of a binding contract
for the restoration work required by EyQEi~ti9R sec. 9.5-119
WiQ2(1) entered into with a contractor qualified to perform such
work.
b. One hundred (100) percent of the estimated cost, as estimated by
the building official, of performing the restoration work described
in E'JBgi~ti9R (a) sec. 9.5-1 19(b)(2) through (4); or, alternatively,
one hundred-fifty ~ (150) percent of the price of a binding
contract for the restoration work described in gUBgi~ti9R (1) sec.
9.5-119 (b)(2) through (4) entered into with a Florida licensed
landscape architect.
a. l.ittir gf ~riQit: Tl:li Pirm.it RglQir IRa:,' fiJi a Etr:~igat ~glRlRil'~i~
littir Gf ~riQit, iR a fgrm. a~~iptaSli t9 tai ~9UR~' aU9rRi)' TRi
littir gf ~riQit IRm;t prg,,'iQi taat tRi igmiRg fiR:;m~ial iREtimti9R
v.rill p~' to tl:li ~9UR~', gr ag tRi ~9URt3' Qiri~tE, fu1l9'.viRg
QidaratigR gf a Qif:Ralt, E'J~R ~9URtE aE IRa)' hi Ri~igElilfj' tg
CGmpliti tRi riEtgratigR a~~grQiRg tg tRi timlE gftai ~iilRim.
Tl:li littir EBall bi irriyg~aSli fgr t'JJi~r fgur (2<1) 1R9mRE kglR
tai Qati gfiRi rigtgratigR agriilRiRt B'lt 1Ra:,', at tRi Qi~~ritigR gf
thi b'JilQiRg official, Bi l'iQllCiQ Q9wW\':arQ ag v:grk ig {OgmplitiQ;
byt iR BO i"iat gl:lall tai fiBal tiR (1 Q) pir~iRt Bi l'iliaEiQ until tRi
10 The current regulations do not require monetary guarantees except in the case of a restoration agreement
which have been eliminated in the proposed ordinance. This guarantee is needed to ensure restoration is
completed and the survivability of the replacement plants is ensured.
II The estimated costs to base the amount of surety bond is higher for amounts based on construction
contracts to provide some protection for the County in case of a default where the construction contracts
may not reflect true costs.
Page 7 of 10
9Re ~'ear ~'Jrvivabili~' rate AR9 ~x9tk m.:iim~RAR~~ N'lyirem.em~ gf
EYBEe~ti9R (a)(3) AR9 (<I) h~:~ BeeR m.~t. Th~ permit hglg~r Ehall
alE9 agIee t9 releaEe the iEEyer fr9m. all Piil3'meRtE m.:lge after tR~
ge~br:iti9R 9f gef:V..llt B~' the bgAfQ 9f ~g~' ~gR1.JRiEEigRen:.
.b..ill Surety bond: The surety bond shall be in a form and with a bonding
company approved by the county attorney. The bond shall be payable to
the county in the amount of estimated total cost for restoration work as
calculated in sec.9 .5-119( e)(1) above, and enforceable, on or beyond a
date t'vel"e (12) thirty-six Q&2 months from the date of the IeEtgratigR
agreem.ellt permit issued for the restoration work. Release of any bond
shall be conditioned upon final approval by the BuilgiRg 9f:fi~ial county
biologist of the restoration work. 12
c. CAd~. eE~rG'),': .^..R eE~r9').' :ii~~911at m.a:,' be ~Etaelidl.~g iR iRe am9'oUlt
re'f.lireg ncith a feger:ollly iREyreg :tiRaR~ial iREtitl~:igR (hereiRatt~r
"@gCrg"Ti~lt) iR ~ form "Thich mitatE tA.~ :ippr(lV~ gf tl1~ Cg~T
attgme~'. The a~~gYRt gRall be agm.imEter~g B~' tRe eECrgW~~ iR
a~~grQAR~e "'ith AR eE~rg'" :iigreem.~Rt ellt~r~g iRtg B~w.'e~R. tR~
Cgyatj' AR9 th~ p~llRit hglg~r. Th~ ByilgiRg gfU~ial iE h~r~by
a.ythgriz~g t9 ~at~r illtg Ey~h AR :iigr~em.~1lt 9R b~half gf th~ C9YR.~'.
Th~ agr~em.ellt Eh:iill, :it miRim.'.Jm. re'l'.lir~:
1) Th~ ~E~rGv.'~e "l,1.cill pay t9 the ~gyR.t:.', 9r aE tR~ ~g~'
gire~tE, f9119wiRg tR~ gedaratigR gf a g~fAylt, Eych :;l,lH9YntE
aE ma:,' b~ ReC~EEar:' t9 ~gmt?l~t~ tRe r~Et9rati9R ac~grgiRg
t9 the termE gf th~ reEtgrati9R agre~m~Rt. Ta~ Eum a~lg iR
the :ol~~gYRt ma~' B~ regy~~g 99WW'.'AfQ by tR~ BYilgiag
gffici:oll, But ill n9 e"eRt Eaall th~ BRal t~R (1 Q) p~rc~Rt b~
giEBurEeg YRtil tae 9Re ~'~ar E'.lrvivabilitj' r:olt~ AR9 ~xgti~
m:olim:@RaR~e re'lyirem.eRtE 9f EubEe~ti9R (a)(]) AR9 (<I) ha'.'~
be@R m.et.
2) The pemait h9lger Ehall agree tg rel~aEe tR~ eE~r9'vee frgm.
all pa:,'mi1mE m.:olgi1 pt'..fEyaat tg AIl grg~r gf iRe Byi!giag
gffi~ial att@r a geb-Ylt haE Be~R gedar~g B~' iRe Bgarg gf
~g\mty ~gm.m.iEEi9R~rE.
(<I) IR iR~ ~"eat the BYilgiRg gffi~ial g~t~n:RiR~E th:it th~ p~rmit hglg~r haE
fail~g tg perf9rm. tae reEtgratigR mgrk a~CgrgiRg tg tR~ t~rmE gf iR~
reEtgrati9R :olgreem~Rt gr h:olE :fail~g tg ~gmt?l~' 'vith th~ t~rm.E gf tR~
gYar:mte~E her@iR aBg'.'e g~t fgrtb., iRe ByilgiRg gfficial, iR ~gREyltatigR.
12 The options for use of a cash escrow and letter of credit have been eliminated and replaced with surety
bond which is easier to administer and ensures funds will be available even if property owner goes out of
business.
Page 8 of 10
witR tlle ~guat:,' ~Gme~', m~' take 9Re (1) gr mgre gf tlle fgllG'J.iRg
:i~ti9RE:
:i. IR the C:iEe gf the c:iEh eECrgnr or letter gf ~redit, tlle guildi~
ofHci:il sh:ill :id"iEe tRe permit hglder, iR v:ritiRg, gf tRe fail\K'e,
gi'.'iRg the permit Rolder tRi~' (10) d~'E to ~ure the default If tile
permit hglder f:iilE tg Cl're tRe def:iult, the guildiRg gfti~ial m~'
recgmmeRd tg tlle gg;R"d gf Cgum:,' c9RYRiEEigRirl> tRat the~' ded~
tl:1e permit hglder iR deI:l-ult, aad, Yp9R v.'fitteR Rgtiti~atigR tg ~
eE~r9'Nee 9r iEEuer gf tl:1e letter gf credit, Egme gr all gf tRe EYmE gf
mgRe~' OR depgEit pYrEU:m,t tg tlle eECrg').' :igreemeRt gr letter gf
credit Ehall ge didmrEed g~' tRe eECrg'Vee gr iEEuer Eglel;,' Yp9R the
~tl:19riz:itigR gf tlle b'.lildiRg gffidal, aad the eE~rg'V~e gr iEEUer
Eh:ill be rele:iEed by tRe permit hglder :iE t9 E\l~h p~'meRt(E).
b. IR tl:1e eyeat of:i Eurety bORd, tl:1e buildiag gftidal Ehall iRfGrm ~
b9RdiRg CgmpaR)' ia Vl'fitiRg gf the defMllt and requeEt that it take
tl:1e ReceEEaf)' :iCti9RE tg cgRafleti the re'luired riEtgntigR.
(3) Default: All guarantees shall provide that if the permit holder failed to
complete required restoration work accordance with the restoration site plan and failed to
comply with the requirements of sec. 9.5-119 (d), the director of planning in consultation
with the county attorney, may take the following action: Inform the bonding company in
writing of default by the permit holder and request that it take necessary actions to
complete the required improvements.~
Section 6. Section 9.5-346 ("Transplantation Plan") MCC, IS hereby deleted and
replaced with the following: 14
Section 9.5-346. Miti~ation standards and county environmental land mana~ement
and restoration fund.
(a) Miti~ation standards: The removal of any listed threatened, endangered,
commercially exploited, and regionally important native plant species and all native trees
with a diameter at breast height (DBH) of greater than four (4) inches shall require
payment to the County Environmental Land Management and Restoration Fund in an
13 This default language has been added similar to language for subdivision improvements in Section 9.5-
85.
14 The entire concept of on-site transplantation, except for restoration, and off-site transplantation has been
eliminated due to the problems with plant survivability. Instead, the concept is that for any clearing of
habitat, the permit holder will have to pay a mitigation fee into the County's environmental land
management and restoration fund. The County will be in a better position to direct such funds to where
they are needed the most. The three -to-one requirement for replacement of native plants within cleared
areas is consistent with Comprehensive Policy 205.2.9 for off-site transplantation.
Page 9 of 10
amount sufficient to replace each removed plant or tree on a two to one (2:1) basis.!1 The
number, species, and sizes of trees and plants to be mitigated shall be identified in an
existing conditions report approved by the county biologist in accordance with the
minimum size requirements set forth in sec. 9.5-367.
(b) MitiKation fees determination: The mitigation fee shall be based on the
replacement cost of the specific plants and trees. The costs for replacement plants and
trees shall be based upon a price schedule maintained and updated annually by the county
biologist. This schedule shall be based on price quotes by at least three (3) private plant
nurseries within Monroe County or Miami-Dade County.
(c) County environmental land manaKement and restoration fund: The board
of county commissioners may establish a special revenue fund called the Monroe County
Environmental Land Management and Restoration Fund. Revenues and fees deposited in
this fund shall be used for restoration and management activities of public resource
protection and conservation lands, as specifically detailed by resolution of the board. of
county commissioners.!!!
v. RECOMMENDATION: The Planning and Environmental Resources staff
recommends approval of this text amendment.
15 The existing off-site transplantation requirement is 3 to 1; however, as on-site transplantation is no longer
an option, for purposes of mitigation the 2 to 1 ratio is more than sufficient to cover the costs of
replacement and installation.
16 This codifies the establishment of an environmental land management and restoration fund, which has
already been authorized by resolution of the Board of County Commissioners. Funds from this account
will not be used for land acquisition purposes and will be detailed by the Board of County Commissioners
through policy resolutions.
Page 10 of 10
MEMORANDUM
FROM:
The Monroe County Board of County Commissioners.
K. Marlene Conaway~~
Director of Planning and Environmental Resources.
TO:
DATE:
June 1 0, 2004.
MEETING DATE: June 16,2004.
RE:
REVISIONS TO MONROE COUNTY CODE, SECTION 9.5-
119 and 9.5-346.
The Planning Commission, meeting at its regular scheduled meeting of June 9, 2004,
voted to adopt an amended version of the ordinance prepared by staff. The Planning
Commission has included additional language to Section 9.5-319 to strengthen the
ordinance by including a three-year freeze on any permits associated with property where
illegal clearing has occurred or where legal clearing has exceeded the permitted amount
of square feet by more than ten (10%) percent.
A revised version of the complete ordinance contained in the original Board of County
Commissioner's packet is included in this packet. Provided below are the two amended
paragraphs for review.
The proposed revisions are shown in strike-through/underline format. The strike-through
language is to be eliminated and the underlined language shall be added. The Planning
Commission recommendations are indicated by shading.
Section 2.
Section 9.5-119
Section 9.5-119 (b) is amended as follows:
(b) The stop work order, if applicable, v..J:J.icR and the permitting restrictions of
paragraph (a) above and (c) below shall remain in full force and effect on the site,
except where a notice of violation is not sustained by the special master.
Section 3. A new Section 9.5-119 (c), MCC, is hereby created as follows:
Section 9.5-119(c) replaces the previous (c)
Page 1 of 1
ORDINANCE
RECOMMENDED
BY STAFF
ORDINANCE NO. -1004
AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS AMENDING SECTIONS 9.5-119 AND 9.5-346, MONROE
COUNTY CODE; REVISING REQUIREMENTS FOR RESTORATION OF
LANDS CLEARED WITHOUT BENEFIT OF PERMIT OR BEYOND SCOPE
OF A PERMIT; DELETING TRANSPLANTATION REQUIREMENTS AND
SUBSTITUTING wlm REQUIREMENTS FOR PAYMENT INTO THE
MONROE COUNTY ENVIRONMENTAL LAND MANAGEMENT AND
RESTORATION FUND; PROVIDING FOR THE REPEAL OF ALL
ORDINANCES INCONSISTENT HEREWITH; PROVlDING FOR
INCORPORATION INTO THE MONROE COUNTY CODE OF
ORDINANCES; PROVIDING FOR. SEVERABILITY; AND PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS, me Boar~ of County Commissioners have approved an ordinance amending
Section 6-29~ Monroe County Code (MCC), to increase the fees for after-tile-fact permits, including
the provision of mitigation fees for unlawful mJing of wetlands; and,
WHEREAS, the Growth Management Division staff was further directed to prepare
amendments to Section 9.5-119, MCC, to strengthen the standards for restoration of habitat areas that
are unlawfully cleared without benefit of a permit; and,
WHEREAS. in reviewing Section 9.5-119. MCC, and related regulations, the Growth
Management Division staff determined that changes in the transplantation requirements in Section 9.5-
346. MCC, for on-site and off.site mitigation of cleared habitat areas were warranted as transplantation
has not been proven to be a successful or cost-effective measure; and,
WHEREAS, the Growth Management Division staff has prepared amendments to Section 9.5-
119, MCC, to strengthen the restoration requirements and increase the mitigation requirements for the
clearing of lands without benefit of a permit; and,
WHEREAS. the staff has also prepared amendments to Section 9.5-346. MeC, to replace
transplantation as a mitigation option in the clearing of habitat with a requirement for payment of
mitigation fees into the county's "Restoration Fund", now renamed the "Environmental Land
Management and Restoration Fund"; and.
WHEREAS, these proposed amendments to the restoration standards of the county's
regulations are intended to ensure that such lands are fully restored and to discourage unlawful clearing
activity and to provide a dedicated funding source for restoration and management of public
conservation land; and,
WHEREAS, the Board of COWlty Commissioners has reviewed the proposed amendments to
Sections 9.5-119 and 9.5-346, recommended by the Growth Management Division; now therefore,
BE IT ORDAINED BY TIlE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA:
Document) S
Page J of7
Section 1.
The tide to Section 9.5-119 is hereby amended as follows:
See. 9.5-119. Environmental restoration standards ..d .we.e.ts.!
Section 2. Section 9.5-119 (a), MCC. is hereby amended and reorgani2ed into paragraphs (a) and
(b) as follows:
( 1) No application for a build~ pennit apolication shall be orocessed Or issued for the
subiect site. except as Drovided for in oaragraph (c).
(2) No ROOOINROGO ap,plication for the subject site shall be accepted.
(3) Anv ROGO/NROGO apolication for the subiect site currentlv in the ~~lem shall
automaticallv be withdrawn and. if it is resubmitted. it shall be considered a "new"
applicatio~. requiring pavment of appropriate fees and receivint!. a new controllina date.
(b) The stop work order. if allolicable.... wltidl and the permitting restrictions of paraeraph
(8) above shaH remain in full force and effect on the site, excc;pt where a notice of violation is oot
sustained by the special master. Wltll all of the following restoration conditions have been met !2r
!h9se portions oCthe site that can not t>e pennitted for cleariDl!:~
(1) Restoration of the site to its pre-violation grade in accordance with a restoration site
plan aDproved by the county biologist.
(2) Replacement of the trees. shrubs. and groWldcovers on the unlawfully cleared site with
native R!!nLspecies as appropriate to the site unlawfully cleared and. payment of a
mitigation fee pursuant to sec. 9.5-346 to comDensate for the environmental damage for
removal of tho!;e native plants. 6 The trees shall be of a size and maturity commensurate
to the unlawful clearing as detennined by the county biologist. The native species mix
I Resuntion agreements are being eliminat~ as the propo$td language will not allow ~uch agrecmelllS which allowed slOp
work orders 10 be removed or pennining even though restoration had not taken place.
2 This revision provides clear authority to code enforcement officers or other duly authori2ed County officials to place Slop
work orders.
) This revised language reft<<lS the fact that often times unlawfully clearing has aln:ady occurred before a stop work order
can be placed.
4 The penaJties for unlawful Clearing have been increased to include removal from the permit allocation system and halt on
any work or pennining until res&oration is completed.
~ This language specifically refers to tho:lC orcas unlawfully cleared that can not be permined and must be restored, which
would be accomplished tbrougb an after-tbe-fact pennit. In conjunctiOll with paragraph (c). it allows for an existiDg
building permit to be revised or a building permit application submilt~d that would .Uow for clearing of those portions of
the proper1)' ualawfully cleared.
, If land is unlawfully cleared, only that portion oime site that can oot be pemlitted tor clearins will need to b~ restored
Document IS
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shall consist of the approximate percentages of the predominant tree, shrub and
groundcover species on the site unlawfully cleared prior to the violation. but if any
endangered or threatened tree, shrub or groWldcover species were unlawfully cleared,
then those species shall be replaced with plants of a size and maturity commensurate to
and related to the unlawfuJ clearing as determined by the county biologist regardless of
predominance.
(3) All replanted trees, shrubs, and groundcovers shall be located on site te the lB&Kimum
exteBt 1l9ssiWe within the same areas that were unlawfully c teared in accordance with
an approved restoration site plan.' If all af the rel'looemem plaatB ,---at he physieaUy
repl_tell 8ft site, tat r.emaiRder shall he eeRated ~ dle eeUB.~' 1a Retere or maaager
pshlie J&fKJs er, 81 tile eise_iaR sf the eeURty. Ie a y.ljUi:ng ge".~ffI:IBeftt RgeBeY er Inihlie
ar ,fivate eeaservMie8 81'Sll' 10 reeJl9~ ~ie 18ft89 . i\llem8w:ely, 8ft &lBMHlt af
Rl6aey eElY81 f8 tile Je6t af the replaeelfteftt eest ~ M pteeeEI ill QB. esers"]: aee&\lBt te
be ases 9y the 88tiBty te fflsteJe at Jll8Il8ge ,Helie laMs.:. 0r, at the eisireBaR of the
OOtiBfy, hy a .;.illiBg gElVElfftlMM age8ey &r a p\lblie sr pfi\l8tl 6aBsef\'tltioB grellp fer
eft' site FeflJacem8Bt af the afieeted J:ta&i'Mr TIle 8esR~ shell adept admiaisffMive
~fe~EI\H't'lS fer the lB&.RB8emeBt ef me eeereVJ aee6Uftt.
(4) Except as expressivelv authorized by the count\! bioloeist pursuant to an approved
phased restoration site pl@.l).. Aall invasive exotic plant species. 89 deseril:tM ill tiMpter
VII, pages 14;3. 170, 178, aM 18), velum" II. MeIW8 csY&~ CaBlprelumsive l_EI
Use PIeB on the most current Florida Exotic Pest Plant Council's list of Category I or II
invasive exotic plants shall be continuously removed during the three (3) ~year
period described .in S\i~geetisR (3) RRragraph Cd) below.
(5) A monetarY l!Uarantee for the restoratioQ work as stipulated in para~Dh (e) shall be
provided in the fonn of a suretv bond.
Section 3. A new Section 9.5-119 (c), MCe. is hereby created as follows:
(c) Where cll;aring of habitat is permitted. a buildinl! oennit application or revised Dennit
application m~ be processed provided such permit specificallv involves the clearin~ of any oortion of
the land which ha.; been unlawfullv cleared. The subiect buildin2 pennit shall not be issued until the
provisions of paragra,ph Cb) above have been fullv met for that portion of the site on which the
unlawful cJearin~ has occurred and which must be fully restored. &
Sectioa 4. Section 9.5-119 (b). MCC, is hereby relabeled as paragraph (d) and amended as
follows: 9
~ At least eighty (80) percent of tile trees replaced, as described in s\lhseeti8ft sec. 9.5-119
~2)) shall be viable at the end of a s.-Jive fer 8 eRe- three (3) year period aiel from the date of
7 Tht concept of off-site transplantation is nat viable based on the experience of Miami-Dade County and the Monroe
COUDty biologists.
· This provision recognizes the need to allow for revisions to an existing permit or subminal of . permit application to
authorize after-tbe-Bct clearing. Even ifthese permit holders were .oot required to restore any of the property, they would
still face monetary penalties under the provisions of S~etlon 6-29, MCe-
t The one-year time period has bee.o expanded to three-years, which is a much more realistic time period to ensure plant
growth a.od viability.
Document 1 S
Page 3 of7
the [mat inspection of the restoration work last rep.laIltiftg; however, dead or dying trees may be
replaced. subtect to prior aporovaJ by the countv biologist. during the ooe- three (3) year period in
order to assure the eighty (80) percent minimum is met at the year's end of three years. The restoration
work shall be insDCCted by the countv bioloe.i!'t on an annual basis during the three-vear period. He
may direct that dead or dying trees be renlaced as he deems necessary to ensure the eh!bty (gO) percent
standard will be met at the end of the three years. All invasive exotic plant species, as described in
VehllBe I, M8Ilf8s C8~' Cemp~eBBive PIe sec. 9.5-119 (a){4) above, shall be continuously
removed during the eRe- three (3) year period described above, unless the county biologist clireclS
otherwise.
SectiOD S. Section 9.5-119 (c), MCC, is hereby relabeled as paragraph (e) and amended as follows:
(e) IB lieu ofeempletieR erUle restOl'alieB 8e8eReed iH SIleaeette88 (a) and (e), the 8\tildiftg
eftieial 8l&Y lift the step welk. eNei' if the fellevJiftg tefMS and e6ftditiaftS 8fe met:
(1) Thill ~efIBit Belder shall eater iBte a binding Fesfe.a1ieR agreemeRt JRYtuaUr 8eve--^-tiBg
with the eeWlly fMt, is. eeBsideratieR fer .e IiftiBg ef the 9Ie, \\'8rk elller, me l'eRIlil
belder 'wiR festeR the unlw.rJlWly ele&r~ prepeRy i8 fhe IBB8Bef deseFihed ill
syhseeooftS (a) aM (h) a8eeNiBg t8 the seheSale rettyi:r.~ "y 1IIe e\:lil~tng effieial. The
htiiWiBg affiGial is here")' a\tt:herizeEl te eAter inte !Nell an agJeemeftl ell heMIC af the
eeURty .
(e) The pennit holder shall be reauired through a surelY bond. to guarantee the satisfactorY
completion of the restoration work in accordance with the aporoved restoration site plan and the
survival of at least eighty (80) percent of the replanted trees for a period of at leac;t three (3) years after
the issuance of the after-the-fact permit for the restoration work. 10
(1) Guarantee amount: The amount of the restoration 2Uarantee shall cover the full costs
of the restoration work described in sec. 9.5-119 (b) 0) through (4)' The estimated
costs of the restoration described in sec. 9.5-119 (b) shall be the sum of a and b.
below: II
a. One hundred (100) percent of the estimated cost of the restoration described in
suheetien ~c. 9.5-119 ~(1) as estimated by the county!e 4epel1lBeRt af
pyelie -.verb entlineer; or alternatively, one hundred~~) illQl.percent of
the price of a binding contract for the restoration work required by stleseeti&B
sec. 9.5-119 ~1) entered into with a contractor qualified to perfonn such
work.
b. One hundred (100) percent of the estimated cost, as estimated by the building
official, of perfonning the restoration work described in suhseetieR (8) sec. 9.5-
119(b)(2) through..(4); or, alternatively, one hundred.:.il.fiI ~ L1iID..percent of
the price of a binding contract for the restoration work described in sHseeliell
10 The current regulations do not require monetary guarantees except in the case of a restoration agreement which have been
eliminllred in the proposed ordinance. This g\l4nmtee is Deeded 10 ellSure restoration is complewdand the survivability of
the replacement plants is ensured.
II The estimated costs to base the amount of surety bond is hisber for amounts based on constlUCtiOD conttactS to provide
some protection for the County in case of a default where the construction contracts may !lot retlect true costs.
Document 15
Page 4 of7
fB sec. 9.5-119 (b}(2) tbroue:h (4) entered into with a Florida licensed landscape
architect.
a.
~~~ := The pePMit lielder may tHe a straight eemme~eiallelt:er e~ eredit,
1ft _ . lahle ta t:M OOUBty attemey. The letter sf eredit m\lSt prevuie _t
;; is~~g M8flsi&l iRstiMi8A "Nill pay te the ee~, af 85 me ealHlly direets,
=;~:g ~e;~a:raUs~ sf a d~\ik, stteIt 8IB81HltS as lBay he R.ee~~I.~
e e staMas aeesrthRg ta the tieRB6 sf the &gPesa... ~ ~~~_~
= for tweBly ti...dJ~)I"'- _ .~ - of.. --
\It may, at the dl98ftlltlaa sf the htHltbeg sffiel~t ~~ r~~~~
8oVJftv:ara as walk is eempleted; lNt iB Be eveat 3hall1he fmal tea (1 ~ pereent
be fElle8B8e lIBal the e88 year 5UfVi\'a8ili~' NIe aRe exatie -~:"ltenBB8e
~ of StII>..Oli~ (al()~..... (4) _ ~.... _. 1M..- ~~ ~!
9 ee te rels8B8 me Issuer H9fB all paymeB1S mMe after die deellll'Mis8 sf
adault h~' the heartl sf eOOBty e8lBlB:issieMfS.
e:a1 Surety bond: The surety bond shall be in a form aDd with a bonding company approved
by the county attorney. The bond shall be payable to the county in the amount of
estimated total cost for restoration work ac; calculated in sec.9.5-119le){l) above. ~
enforceable. on or beyond a date wiel'Vlil (l~ thirtv-six ~ months from the date of the
feStef6tiell agreemeAt permit issued for the restoration work. Release of any bond shall
be conditioned upOn final approval by the &1iildiBg offieiel countv hiolo\list of the
restoration work.l~
e. C8Ba eS6I'&W: An eseNW aeeeUftt lIIay he estalJlisheEI iR lite 8IB8l1Bt ~ife"
wia a federally ill6UfeEl fiR8Rei81 iMtit~:a81l (he~tRefter "es8fewee") in 8 feflll
whiM meets the appl'9val sf the eS\I8ty atlSfRey. TIle leee_' shall H
admiBisteNd by me eserswee ill aeeefSaRee ".v:idl 8B eS61SW agr88Rleat eRtered
HMe eetv;eeft the SSHIi'" and the permit heldII'. The 8\1ihliRg eftieial is IlerMY
8\Hheri~ ta 81lter iftte SlieR QB 8gJeelBeRt 9ft heBa&f af the eeuaty.. The
agreelll9B.t shall, at minUHm left\iife:
1) The eserev.'ee YJill pay to me eelHlfy, Sf as the aeut:)' dweIs, folleVJiRg
the deelaratisR sf a Elefelt, 31ieli ameuAts as May he Meessary le
oomplete the rest0FaUS8 aee8fdiBg Ie tM tefBHl ef the MSterMieR
agNemeBt. The &mil kald Hi 1ft. ieee\H\t IR8:y M re_ead 8eww:J8flil h~'
the 8ui1eing afHeial. &Jut ill He e-":eRt shall the futal tell (I Q) ",NeAt he
dislNfseEi l::lDlil the efte year Wl'Vy;aeility Fate anS euetie lflSiBtefteaee
F8ElllilemefttS ofs-.haeetisB (&)(3) md (4) he.}e tleeR met.
2) The permit lielEler sftall &glee ta release the 8S6l'8VJee (NIB &II pQYJfteRl6
Maes J'Il1FsuaBt teaR s,d.r af1fte hui1eing slliei81 after a defaalt has heell
EleelElfed by .e heard af eetiftly G0R1tBissisB8FS.
(1) 1ft Ute e\<eat tile Mlildillg .effitiial e8tereHB8S tIIa, Hie pefmit aeMer has failed to peff8fIB
thtl ~9teJ'8tieB walk aeeereil\g 'e die terms of IDe resfefMieB agreemeRt 91' Ras failed ta
12 The options for use of a ca.,b escrow and letter of credit hav~ bleeD eliminaled and replaced with surety bond which is
easier to administer llJld ensures funds will bIe available even if property owner goes out of business.
Document! S
Page 5 of7
salliJJIy 'lJifJl the teABS of me gtJar88le~ herem aheve set CartS, the lltiildiftg efMial, is
8sD5Ultetiel\ wMh the ~euM'y aKBHley, may tHe elle (l) aF meN af tile felleVoliftg
aeaaBB:
&. 1ft the eMe af the 88M e~w Sf leKer sf eredi1t the htlilEIiBg eftieiel shsll fMtJiM
the permit &ehler, ill writing, sf tile failure. gi-MBI tile ~mit helder uuJt}' (39)
d~s le ewe the aefatHt. If the peBBit Belser foils te ewe the f1efHk, the
lMtikliBg siBeial !MY re8sfftlBeftfl Ie 18e 8e&rd sf 8a\iBty eemmi9sieaers that
tMy lieelara the permit heJaer iB default, an&, Ypa8 ..,maeR RetifiiatieR '9 tile
eserav;ee er isslIer Bf the letter Bf eMail, same Sf all sf the smB5 sf meMY iMl
.:;.t p\lfStlaRt t9 the esersw &gleameft' er llMt8r afere6it ~l1-'l he.4isBwsed hy
the eSEir-0'.\'se Sf toot1er selely \IPsa die 8tHkefil!Mioa af tM hBil8iBg emeiel, aBd
the 8&efEW.'ee Sf iSS\ler shell be releesM By the permit BeItler as le !MIeR
JJ8)'M88l(s).
b. l:a the t)V8Bt sf a ~ heAd, the b\lildiBg silieial shell ieieRB the beMiRg
8alllpatly ift ..,.'l'iQag af the defaWt aB8 FeEtUsst thai it l8k.e me aee899&ry &etieBs
18 8sB'iplele the HttYifeEI FeSlaratisR.
(3) Default: All guarantees shall provide that if the oennit holder failed to com,plete
required restoration work accordance with the re!;toration site plan and failed to comply with the
requirements of sec. 9.5-119 (d)' the director of planning in consultation with the county anomey. may
take the following action: Inform the bonding company in writinll of default bv the pennit holder and
request that it take necessary actions to complete the required improvements.13
S~tioD 6. Section 9.5-346 ("Transplantation Plan") Mee, is hereby deleted and replaced with the
following: 14
Seenon 9.5-346. Mine.tion staDdards and eountv environmeDtal land maDae.emeDt and
restoration fUDd.
(a) Mitjl!ation standards: The removal of anv li~ted threatened. endangered. commercially
exploited. and rewonally important native plant species and all native trees with a diameter at breast
height (DBH) of greater thM four (4) inches shall require pavment to the County Environmental Land
Management and Rest~ration Fund in an amount sufficient to replace each remQved plant or tree on a
two to one (2: 1) basis. S The number. species. and sizes of trees and Dlagts to be mitieated shall be
identified in an existin2 conditions report approved by the county biologist in accordance with the
minimwn size requirement" ~et forth in sec, 9.5.367.
(b) Mitiealion fees determination: The mjti~ation fee shall be based on the replacement
cost of the specific plants and trees. The costs for replacement olanrs and trees sball be based u,pon a
13 This default language has been added similar to language for !:ubdivision improvements i.n Sectioo 9.5-85.
14 The entire concept of on-sire transpl8J'ltation, extept for restoration. and off.~itll tnlnsplantation has been eJUninaled due
to the problems wdh plant survivability. Instead. the cooupt is that for any clearing of babitat, the permit hokler will have
10 pay It mitigation fee into the County's environmentaJ land ma.oagemenl and r~toratiol1 fund. The Counl)' will be in a
better position 10 direct such funds 10 where they are needed the most. The three ....o-one reqw..cmcot for replacement of
native plants within cJeared areas is consistent with Comprebensive Policy 205.2.9 tOr off-site transplantation.
I' The existing oft:'site trABSplantation requirement is 3 to I; however, as on-sile transplantalion is DO longer an option. for
purposes of mitigation the 2 to J ratio is more than suffiticm 10 cover the costs of replatement and iDstaUation.
Document 15
Page 6 of7
PASSED AND ADOPTED by tbe Board of County Commissioners of Monroe COWlty,
Florida, at a regular meeting of said Board held on the clay of ' AD, 2004.
Mayor Murray Nelson
Mayor Pro Tern David Rice
Commissioner Charles "Sonny" McCoy
Commissioner George Neugent
Commissioner Dixie Spelw
(SEAL)
Anest: DANNY L.KOLHAGE. Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLOlUDA
By
By
Mayor/Chairperson
Deputy Clerk
MONROE COUNTY ATTORNEY
~E~ASTO FORM:
~
JOHN R. COLLINS
~UNTY ATTOANEY
Dale OC# Oa..) f)Y
I' ~ codifies the e~tablishmenl of an envitoDmUW land manag~menl and resloration fund. wlUc:h has already been
authorazed by resoJurJOn of the Board of County Commissi~s. Funds from this account will not be used {or l.aod
acquisilion purposes and will be detailed by the 80ard of Counly Commissioners through policy resolutiQns.
Documeoll S
Page 7 of1
ORDINANCE
RECOMMENDED
BY
PLANNING COMMISSION
ORDINANCE NO. -2004
AN ORDINANCE BY THE MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS AMENDING SECTIONS 9.5-119
AND 9.S-3"6, MONROE COUNTY CODE; REVISING
REQUIREMENTS FOR RESTORATION OF LANDS CLEARED
WImOUT BENEFIT OF PERMIT OR BEYOND SCOPE OF A
PERMIT; DELETING TRANSPLANT A TION REQUIREMENTS
AND SUBSTITUTING W1m REQUIREMENTS FOR PAYMENT
INTO THE MONROE COUNTY ENVIRONMENTAL LAND
MANAGEMENT AND RESTORATION FUND; PROVIDING FOR
THE REPEAL OF ALL ORDINANCES INCONSISTENT
HEREWITH; PROVIDING FOR INCORPORATION INTO THE
MONROE COUNTY CODE OF ORDINANCES; PROVIDING FOR
SEVERABILITY: AND PROVIDING FORAN EFFECTIVE DATE.
WHEREAS, the Board of County Commissioners have approved an ordinance
amending Section 6-29, Monroe COUDty Code (MCC), to increase the fees forafter-the-
fact permits, including the provision of mitigation fees for unlawful tilling of wetlands;
and,
WHEREAS, the Growth Management Division staff was further directed to
prepare amendments to Section 9.5-119, MCC, to strengthen the standards tor restoration
of habitat areas that are unlawfully cleared without benetlt of a permit; and,
WHEREAS, in reviewing Section 9.5-119, MCC, and related regulations, the
Growth Management Division staff determined that changes in the transplantation
requirements in Section 9.5-346, MCC, for on-site and off.site mitigation of cleared
habitat areas were warranted as tranSplantation has not been proven to be a successful or '
cost-effective measure; and,
WHEREAS, the Growth Management Division staffhas prepared amendn\ents to
Section 9.5-119, MCC, to strengthen the restoration requirements and increase the
mitigation requirements for the clearing of lands without benefit of apennit; and,
WHEREAS, the staff has also prepared amendments to Section 9.5-346, MCC, to
replace transplantation as a mitigation option in the clearing of habitat with a requirement
tor payment of mitigation fees into the county's '"Restoration FWld", now renamed the
..Environmental Land Management and Restoration Fund"; and,
WHEREAS. these proposed amendments to the restoration standards of the
counry's regulations are intended to ensure that such lands are fully restored and to
discourage unlawful clearing activity and to provide a dedicated funding source for
restoration and management of public conservation land; and,
Docuroent20
Page I ofB
WHEREAS, the Board of COWlty Commissioners has reviewed the proposed
amendments to Sections 9.5-119 and 9.5-346. recommended by the Growth Management
Division;
The proposed revisions are shown in strike-through/underline fonnal. The strike-through
language is to be eliminated and the underlined language shall be added. .
Section 1..
The title to Section 9.5-119 is hereby amended as follows:
Sec. 9.5-119. Environmental restoration standards a.1I a"~_t8"
Sedion 1. Section 9.5-119 (a). MCC, is hereby amended and reorganized into
paragraphs (a) and (b) as follows:
(a) In the event any land clearing &eewe is occurrina on a site and wftieh ~
clearing is outside the scope of anypennit issued or for which no permit was issued. .theft
the building official or other authorized county official. shall issue a stop work order': If
any land clearing has occurred for which no permit has been issued. such activity shall be
subject to code enforcement proceedinl!s under chanter 6.3.3 Except tor issuance of an
aporoved after-me-fact pennit for restoration. . the followin2 nermir application
restrictions shall apnlv upon a stoP work order. pursuant to chapter 6.0. or. a notice of
v;oJation pW"Suant to chanter 6.3, until the restoration conditions of parall.raph (bl are
met:4
(J) No application for a building oennit application shall be. processed or
is!'iued for the subtect site. except ac; nrovided for in parallTaph (c).
(2) No ROGO/NROGO 8oolication for the subiect site shall be accepted.
(J) Anv ROGO/NROGO apolication for the subiect site currently in the
system shall automatically be withdrawn and. if it is resubmitted. it shall
be considered a "new" application. reQuirin2 payment of appropriate fees
and receiving a new controlling date.
(b) The stop work order. if applicable. whiM 3Qd the permitting restrict.ions
of naragraph (a) above and (c) below shall remain in full force and effect on the site,
except where a notice of violation is not sustained by the special master;. Hmilall of1he
I Restoration agreements are beiDg eliminated as the proposed language will not allow such agreements
which allowed stop work orders to be removed or permitting even though resroration had not taIc~D place.
2 This revision provides dear authority to code enforcement officers or other duly authorized County
officials to place stop worl.: orders.
1 This revised language reflects the fact thal often times unlawfully clearing has already occurred before a
stop work order can be placed.
4 The penaJties for unlawful clearing have been increased to include removal from tIle pennir allocation
sYSIen\ and halt on any work or pennining until r~slOJalion is completed.
Document20
Page 2 of!
fellswHtg Eestefati8ft e8ftditions he',e hHft met faf tRO~f: pOPlie8S af Ehe sile tftal eaft RAt
88 fl-8HBhted fer tilElariftg:~
(1) Restoration of the site to its pre-violation grade in accordance with a
restoration she plan approved bv the cmUltvbiologist.
(2) Replacement of the trees, shrubs, and groundcovers on the Wllawfully
cleared site with native. plant species as appropriate to the site unlawfully
cleared and. payment of a mitii!ation feenursuant to sec. 9.5-346 to
compensate for the environmental damage for removal of those native
~.6 The trees shall be of a size and maturity commensurate to the
unlawful clearing as determined by the county biologist. The native
species mix shall consist of the approximate percentages of the
predominant tree, shrub andgroundcover species on the site unlawfully
cleared prior to the violation, but if any endangered or threatened tree,
shrub or groundcover species were unlawfully cleared, then those species
shall be replaced with plants of a size and maturity commensurate to and
related to the unlawful clearing as determined by the cOWltybiologist
regardless of predominance.
(3) All replanted trees, shrubs, and groWldcovers shall be located on site te-4he
maximWR IilUlIilR' passible within the same areas that were unlawfully
cleared in accordance with an approved restoration site plan. 7 If aU af die
f8JlI8e8ffieat plants 0aft8at he physiti&lly Fq'IlaBted all site, tAt reHlaift6er
shaU be BOB8ted to lite 88ttftt:y k) fester:e or manager ptthHe lanEls ef, at tile
diseretteft sf the 8aM\)', .a a 'Nilliag go\'emmellt agaft")' or publie ar
private eOAservatisft group te restore publie IlWls . Altemalivl!ly, aft
amoWlt of !Baney equal te the r.est sf tlt.e .eplaselR8Rt eest may he plaeee
tA 8Il e96FeW EKJOOURt te he yeN 8Y me ceWtly te r~stsre 9r !B8B8ge puhlie
Hm6s.:. or, at the diser8tta8 &f the ti8UIJty, by a vJilliBg g&"lemmeftt ageaey
or a ptthlie ar private cOflservatisll gfa~ fer ail site replaeellleRt sf the
aft'eete(j habitat The eeuMy sBiYI adapt admiftistf8ti',e p.seesules fer the
management sf lke 8serow aceeunt.
(4) Except as expressively authorized by the county biologist pursuant to an
approved phased restoration site plan, Aall invasive exotic plant species,
8B EieSEiR8ee ia ehapler VII, pages 163, 179, 17g, IUld 1&3, "sluMe II,
Moftft)e CettBf')' CempreheBsi"le Land U3a PIeR on the most current
Florida Exotic Pest Plant Council's list of Catel!.ory lor 11 invasive exotic
, 'rhis language specifically refers to lho~ areas unlawfully cleared that can not be permitted and must be
restored. which would be accomplished through an Bftet-the-facl permil.1n ~onjunction with panlgJ1lph(c),
it allows for an existing building permillO be revised or Ii building permit application submitted that would
allow for clearing of those ponions of the property unlawfully cleared.
6 If land is unlawfully cleared, only tbat ponion of the site that can not be permirted for clearing will need
(0 be restored
7 The concept of off-sile transplaotatioD is not viable based on tht experience (\f Miami-Dade County and
the Monroe COUDty biologists.
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plants shall be continuously removed during the three (3) ee-year period
described in ~eaaR (3) oaral!l'aph Cd) below.
ill
A monetarY ~antee for the restoration work as stipulated in paragraph
C e) shall be provided in the fonn of a surety bond.
SectioD 3.
A new Section 9.5-119 (c), MCC, is hereby crea1ed as follows:
(e) W-ber-e QJearme af )laBilet is ptlrlBisea. a BtH.hiiBf: peHftit ftBf\lieatiell &I'
~iised 98faNt 811lllieatiaR m911 Be BI'aeeS9tld era...iS0d !HiM peRDit ~ifieaUv ift-valves
the eleariBf: of an'" ,eRioA sf fke laIHI v;IHfih has Beefl tiRJavlfilllly' eleared. The &t1bieet
lntihiyul. pt'HRit shall RAt Be issues lIMil the JH'&':iaiElfts Elf parall!f8Ph (8) eave he"/S BeeR
flill'.. met fer dt8t rAttieR of the site OR whish the IiRlavAul ~leaFi~ has eeeHl'fed &Jut
wftiek BUist he ftiHy restered.&
tc) Where clearing is done without benefit of a nenni, or where cJeari~
exceeds the nennitted Ullount of 9qlJ31'e feet by. more than ten (I ()O~) percent. no permits
shall be issued on the property for a Deriod of three years from the date of the final
inspection of the restoration work as described in (d) below.
SectioD 4.. Section 9.5-119 (b), MCC, is hereby relabeled as paragraph (d) and
amended as follows:9
~ At least eighty (80) percent of the trees replaced, as described in
st1l3seetien sec. 9.5-119 ~(2), shall be viable at the end of a stlr/i'/e fer a eRe- three
ill year period &fteF from the date of the fmal inspection of the restoration work laM
teplebftg; however, dead or dying trees may be replaced. subject to prior approval by the
county bioloeist. during the eRe- three (3) year period in order to assure the eighty (80)
percent minimum is met at the year'trCnd of three vears. The rel'>toration work shall be
insoected by the counrv biologist on an annual basis durini! the three-yenr period. He
may direct that dead or dyin~ treel'> be reD laced as he deems necessan' to ensure the
eighty (80) percent standard will be met at the end of the three vears. All invasive exotic
plant species, as described in VelYJBe 1, M9ftree CeltIlty Compl'8ReRSi"le Plan sec. 9.5-
119 (a)(4) above, shall be continuously removed during the ~ three (3) vear period
described above. unless the county biologist directs otherwise.
Section 5, Section 9.5-119 (c), MCC, is hereby relabeled as paragraph (e) and
amended as follows:
I This pro\'ision recognizes the need to allow for revisions to an existing permit or subminal of a permil
applicalion 10 authorize after-the-facr clearing. Even if these permit holders were nOl required to restore
any of~ property, they would still face monetary penalties under the provisions of Section 6-29, MCC.
9 The one-year time period bas been expanded to three-years, which is a mucb more re&listic lime period to
ensure plant growth and via.hilit)'.
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Page 4 of8
;e-~ -: I:: .~.liea .r.. _at;... d.~b~ ;~ ~~ ~ ::
(e). fA \lihli ~ . aI ;;:;; lift che step wark. erder if the fe1l0wiRg tefIB6 -
eeft(tiyeRs are Iftet:
::.::: hoIdti .11 __ iJ1lO . b~ ..._~::.::=
=~;~-;1Il .. .._IIlat. iR .~~~~~.~I.i~
== -;;: ;;;_ ;;;.~r. .... JlOIlIBII b~I"" :.011 ~ ~ _~~~
::::: ; ,_ . IRa.- _- IR s..~:.t~ ~~ ~
= ::: -:= ~:"ire<I BY Ibo boilolins .~~ ~ ~~
rye 9 eater 0\18 S~eB &R agreelBeat ell eehalJ Q{
the e9tiftty.
(l)
e
') Guarantee amounl: The amount of the restoration antee s
the fun costs 0 e restoration work described in sec. 9.5-119
through (4). The estimated cOSIS of the restoration described in sec. 9.5-
119 (b) shall be the sum of a and b. below: 11
a.
One hundred (100) percent of the estimated cost of the restoration
described in ~beet:ieB sec. 9.5-119 W(h)(1) as estimated by the
county's dElp8Plffteat efp\lsliG VJerl~& eneineer; or alternatively, one
hundred:Jifiy (-1-00) D..ill..Percent of the price of a binding contract
for the restoration work required by M3eetie8 sec. 9.5-119
@)(l) entered into with a contractor qualified to perfonn such,
work.
b.
One hundred (100) percent of the estimated cost, as estimated by
the building official. of performing the restoration work described
in sHhseetieB (8) sec. 9.S-119(b}(2) through (4); or, alternatively,
one hundred-fifty ~ (t 50) oercentOf the price of a binding
contract for the restoration work described in 9\l9S1!leti8ft (11 ~
9.5-119 (b)(2) throu2h (4) entered into with a Florida licensed
landscape architect.
a.
L= :: :~it: :rile peADit lialser Ift8'Y file a s-1f8ight ee~r~
Ie t, tR 8 fa"" aeeefllehle 18 the e8~ aaet'Rsy. The
10 The current regulations do not requile monerary guarantees except in the case of a reslOl1ltiOD agr~emeDt
which have bten eliminated in the proposed ordinance. nus guarantee is o~eded to ensure reS\oration is
compJeted And the sUt\livabihty ofttle replacement plants is ensured.
II The estimated costs to base the amount of surely bond is higher tor amounts based on construction
contrlicts to provide some pro~ction for the County in Ca...ll of a default where the construction contracts
may not reflect true costs,
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Page 5 ofs
J~t:ter sf 8redit JBtl81 pre vide thal lite isstlH\g hB&Beial iftsat:uriot\
will pay te the eellftt'y, Sf 89 Hie estillty streets, fsUWNiag
"lelara.isH of a Eiefattlt. sHeh 8IIl6ttfttS as may he neeessary Ie
eemplete 1he festeJ6tiSl\ aeeeftHg ta ae leMa sf IRe a~emellt.
:'Ale letter shall he iff8veeable fer MaRty few (24) MSAlhs HaRt
the ~t~ ;f .8 re~s,ation agreemeat h&t R\8Y, at tM disefetisll ef
the huil<!iIlg affieial,B~ reEilleed dS'J.w.vefd as walk is e.eM,letee;
9tH in Be 8\'8nl 9I1a11 the BRaI tM (19) pereent he releases llnti) the
OM year swvi'labilify rate 886 exetie maiftlaaanee feElllirelft8Rt9 af
stlBseelieB (a)(3) 888 (4) _Ie heaa met. The permit held. shall
8136 agree te releasedle issuer fF8m all paymests mad~ after tke
tleelaMtien sf aefatllt hy the Beef" of ee1iR.Y eeJBIHis!JiaBefS-
b:ill Surety bond: The surety bond shall be in a form and with a bonding
company approved by the county attorney. The bond shall be payable to
the county in the amount of estimated total cost for restoration work as
calculated in sec.9.5-119(e)(l) above. and enforceable. on or beyond a
date twelve (12) thirty-six (36) months from the date of the roE!lsteftltiee
&greemeBt permit issued for the restoration work.. Release of any bond
shall be conditioned upon final approval by the lMlilding 8FH&ial county
bioloszist of the restoration work.l:l
8. Cash e88feW; An e:;erewooceYBt may he estahlisheEi in 1he amellftt
req\1iree with a fedefally ift9wred fin8ft6ial lMtiMi8R (acreiRafter
l~sere':Jee") in a feRll \vh:iea mesS!> the apple..-al eftheee\lftly
aftemey. TRe aGe9118t shall Be 88miftiste,ea by the e5er8Wee in
aeeer8aeee witR Qft e98faw atJe1meBt eftter-eEl iBte be~veeft file
e0U1lty all" tile pt3tttHt belder. The buildiag effieial is berehy
llHtherize"ts enter inta sueR an agreemellt el\ behalf af tbe 881iftty.
+Re apesment sRalI, at minim\!M requtFef
1) The eseF9'.\~ee will pay t9 the GallB.~', ar as tM sauoty
direets, feRawlng lh.e dee)afMian af a default, stieR ameunte
as IftaY he Beeessary to 8eJftpl0le the resferaliel\ aeoofdiftg
18 the terms of tke re3t8fatieR agreemeBt:. T~ SllIR hels is
tRe aeeeunt May he feEkiEieEI s9wnwar" hy tile lMlilEliftg
offieial, But iR Be eveBt shall the flMl left (19) pereellt be
dieewsed llAlil the ene year stifll.:i',abilit:y ftlte aft8 eK0ge
RUHllt8Baft6e reElyiremeB~ af sYhseeti81l (a )(3) Bftd (~) Rave
BeeR Met.
2) The peRllit Rslder sb.aIlagree t8 release the eSSfWJIee fF8m
&H paym8B.ts IB8.tle pwsu&ftt Ie 8ft er-der af the builEliftg
I! The options for use of a cash escrow and letter of credit have been elimiollted and replaced with surety
bond which is ~asier to administer and ensures funds will be availAble even if propeny owner goes out of
business.
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Page 60f8
eftieial after El Elef6tdt Bas BeeR dedar~d by the he&f4 ef
seBRt}' eSlll:ftlissieftefs.
( 1 ) IB the event the b\liIEliAg effieial deteflBiRe& "'at Yle peRBit ltelder has
failed Ie peries lhe fesoomien wel'k a8eeFdiRg te the teflfts sf tee
r~tef8l:ieB 8gfeeIBeBt or has faileEI Ie 8a...1y with the tefB16 af the
gtuwftftlees herein eave 3et fertft, ~ MtiWing effiei81, aft El8BBtikatleB
wifft the e6Uftty altEU'ft~., lRay take one (J) ef Mete ef the fellewill'
aetioBS;
6. In tfte ease ef the e858 eSele,.', erJeMer sf efedit, the BBildiftg
offieial 9h8Il advise tlte permit helde.,iB Wfiang, ef the fai'-e,
giving the permit balder tftilty (30) days Ie Slife the default. If the
peHftitaelaer: fails to ewefheElefBYk. taB building afti&i61 May
rtll8emmBad to the beaM ef 8EM:H\ty eemmissieBeFS that they deeJare
th8 PBRB:it hehler in Elefault, &fHI, upeB '.'Vfitte8 BSMHEaties te the
esere-wee aF t8stlef ef the letter at' 8f~tlil, 8eIBe Sf all af the SWBS ef
mosey 8B depesit ptlfSII8ftt ta file eS8feV.' agr~emeRt Sf leMer af
eJedit shall M eishttf5eEl by the e:;er.e'Jlee ar i99\l0f 1ge1el)' .n the
Mltftefi2att8ft af the buildiftg affietal, BREI 1M eSErev.'ee sr issuer
shall he released by the peRRit aelder 6S te well p6ymeRt(.s).
8. lH the eves. ef 8 SHfety baBd, the builEliftg eftieial shall iBfelBl the
bonding 8e81p8ftY iB writiBg ef the defMtlt aM retlue5t tfteI it tae
the Reeessery aetieB5 16 oomplele the feElyifeEl rest6fatioo.
(3) Defaulr: All auarantees shall Drovide that if the permit holder failed to
comolete reQuired restoration work accordance with the restoration site Dlan and failed to
comply with the requirements of sec. 9.5-) 19 (d). the director of planning in consultation.
with the county attomev. may take the followine action: Info"" the bondin2 companv in
writing of default by the permit holder and reque~lthat it take necessary actions. to
complete the required improvements.13
Seetioa 6. Section 9.5-346 ("Transplantation Plan") MCC, is hereby deleted and
replaced with the following: 14
Section 9.5-346. Mitieation staandards and countv environmental land manaeement
aDd restoration rUDd.
I) This defau't language has ~n added similar to language for subdivision impri>vements in ~ction 9.5-
&5.
14 Tilt entire concept of on-site transplantation, except for restoration, and off-site uuspl8Dtationbas been
climinated due to the problems with plant survivability. wlead, the concept is that for any clearing of
habitat, the permit holder will have to pay 8 mitigation fee inlo tbe County's environmental land
management and restoration fund. Tbe County will be in a better position to direct such funds to where
they are needed the most. The thrce -to-one requirement for replacement of native plants within cleared
areas is consistent with Comprehcnsive Policy 205.2.9 for off-site transplantation.
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(3) Milie.QI;On standard..: The removal of any listed threatened. endangered.
commercially exploited. and regionally imDortant native Dlant species and all native trees
with a diameter at breast hei~t (DBH) of greater than four (4) inches shall require
wment to the COWltv Environmental Land Management and Restoration FWldin an
;nount sufficient to replace each removed D1ant or tree on a two to one (2: 1) basis. I S The
number. sDecies, and sizes of trees and Dlants to be mitigated shall be identified in an
existing conditions report approved by the county biolof:ist in accordance with the
minimum size reauirements !'>et forth in sec. 9.5-367.
(b) Milifa/ion fees determination: The mitigation fee shall be ba~ed on the
reolacement cost of the specific plant') and trees. Tbe costs for replacement plants and
trees ~hall be based upon a price schedule maintained and updated annually bv the COWltv
biologist. Thi:; schedule $;hall be based on price quotes bv at least three (3) Drivate plant
nurseries within Monroe County or Miami-Dade County.
(c) Countv environmental land mana~emenl and re..~loration fund: The board
of COWltv commissioner.; mavestablish a special revenue fund called the Monroe Countv
Environmental Land Manai!ement and Restoration Fund- Revenues and fees deposited in.
this fund shall be used for restoration and manaeement activities of public resource
protection and conservation lands. as specificallv detailed bv resolution of the board. of
countv commissioners.16
NOW THEREFORE, BE IT ORDAlNEDBY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA, THE FOLLOWING:
PASSED AND ADOPTED by the Board of COWlty Commissioners of Monroe County,
Florida, at a regular meeting of said Board held on the 19th day of May, AD. 2004.
Mayor Murray Nelson
Mayor Pro Tern David Rice
Commissioner Charles "Sonny" McCoy
Conunissioner George Neugent
Commissioner Dixie Spehar
(SEAL)
Attest: DANNY L.KOLHAGE, Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY. FLORIDA
By
By
Deputy Clerk
Mayor/Chaitl'trson
J, The existing off-site lraDspJamAtioD requirement is 3 to 1; however, as Oil-site transpJanlation is Dolon&er
an option. for PUrposd of mitigatioD the 2 to I ratio is more than sufficient to cover the costs of
repl.c~ment and installation.
III This codifies [he establilltunenl of an environmental land management and r~1ora[ion fund, which bas
already been authorized by resolution of the Board of County Commissionen:. Funds from this account
will not be used for land acquisition purpos~ and will be del8iled by the Board of COUI1Iy Commissioners
through policy re$olu[ions. Mc.~'~>;: COUNTY ATTORNEY
Do<lunont20 ...go. of8 ~;~IA:
. c.o~~1Y..!'~ORNEV
t'".~
~ v' ~
County of Monroe
Growth Mana~ernent Division
2798 Overseas Highway
Suite 410
Marathon, florida 33050
Voice: 305.289. 2500
FAX: 305.289. 2536
Board of County 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
DATE:
Board of County Commissioners
Timothy J. McGarry, AICP /Ii J
Director of Growth Mana~:l(t
June 15, 2004
TO:
FROM:
SUBJECT:
Planning Commission's Recommended Changes to
Proposed Ordinance Amending Sections 9.5-119 and
9.5-346, Monroe County Code
The Growth Management Division recommends approval of the proposed ordinance as amended
by the recommendations of the Planning Commission identified in Ms. Conway's June 10, 2004,
memorandum with the addition of the following language to that recommended by the Planning
Commission for new Section 9.5-119(c) [proposed change underlined]:
"(c) Where clearing is done without benefit of a permit or where clearing
exceeds the permitted amount of square feet by more than ten (10) percent, no
permits shall be issued for the property for a period of three (3) years from the
date of the final inspection of the restoration work as described in (d) below,
excevt for the permit required to complete the restoration work and any permit
exclusively limited to addressing imminent risks to property and public health and
safety."
V/3