Resolution 372-1988Monroe County Commission
RESOLUTION NO. 372 -1988
A RESOLUTION OF THE BOARD OF COUNTY COMMIS-
SIONERS OF MONROE COUNTY, FLORIDA, AUTHORIZ-
ING THE MAYOR/CHAIRMAN OF THE BOARD TO
EXECUTE A SETTLEMENT AGREEMENT BY AND BETWEEN
THE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA, THE FLORIDA DEPARTMENT OF
COMMUNITY AFFAIRS, AND ARTHUR AND BETTY
LUJAN, CONCERNING BUILDING PERMIT NO.
8810000196 FOR ENCHANTED ISLAND.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, that the Mayor/Chairman of the Board is
hereby authorized to execute a Settlement Agreement by and
between the Board of County Commissioners of Monroe County,
Florida, The Florida Department of Community Affairs, and Arthur
and Betty Lujan, a copy of same being attached hereto,
concerning Building Permit No. 8810000196 for Enchanted Island,
located in Florida Bay, Monroe County, Florida.
PASSED AND ADOPTED by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of said Board held
on the 16th day of August, A.D. 1988.
(Seal)
Attest: DANNY L. KOLHAGE, Clerk
Wwn
M/AWZ
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BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By
ay airman
APPROVE AS FORM
AND LE A SU /CIFRfCY
RY "
Atterney's Office
STATE OF FLORIDA
LAND AND WATER ADJUDICATORY COMMISSION
IN RE:
BUILDING
PERMIT NO. )
8810000196
ISSUED
BY THE MONROE )
COUNTY
BUILDING DEPARTMENT
TO )
ARTHUR
AND BETTY
LUJAN IN AN )
AREA OF
CRITICAL
STATE CONCERN. )
STIPULATION AND SETTLEMENT AGREEMENT
THIS AGREEMENT entered into on the day of ,
1988, by and between the State of Florida, Department of
Community Affairs, (hereinafter referred to as DCA) Arthur and
Betty Lujan, (hereinafter referred to as LUJAN) and Monroe
County, the parties in the above styled proceedings.
WITNESSETH:
WHEREAS, Lujan is the owner of certain real property to wit:
An island known as Enchanted Island, of approximately 3-1/2 acre
island located in Florida Bay to the East of Key Haven and North
of U.S. Highway No. 1, Monroe County, Florida, (hereinafter
referred to as Property);
WHEREAS, Lujan applied to Monroe County on January 15, 1986
for a land clearing permit and fill permit. The permits as
requested would have permitted him to clear, after the fact, the
island of vegetation, fill the island to +4 mean high water, and
restore an access road to the island;
WHEREAS, Lujan-s applications were approved and the permits
were issued on February 4, 1986. The DCA, pursuant to Section
380.07, Florida Statutes, filed a timely appeal to the Florida
Land and Water Adjudicatory Commission;
WHEREAS, The Florida Land and Water Adjudicatory Commission
forwarded the DCA appeal to the Division of Administrative
Hearings and requested an assignment of a hearing officer for an
administrative hearing, pursuant to Section 120.57(1), Florida
1
Statutes. Pursuant to this notice, the Division of
Administrative Hearings, by its duly designated hearing officer,
William J. Kendrick, held a public hearing in this case on
December 15 through 17, 1986, in Key West, Monroe County,
Florida;
WHEREAS, William J. Kendrick, hearing officer, issued a
recommendation order on the 9th day of April, 1987, making the
following recommendation: "That the Florida Land and Water
Adjudicatory Commission enter a Final Order reversing Monroe
County's decision to issue the subject permits No. 14723A and
14724A, and deny Lujan's request for a land clearing and fill
permit for Enchanted Island and the westerly access road. That
such Final Order specify those items set forth in paragraph 10,
Conclusions of Law, as the changes necessary that would make
Lujan's proposal eligible to receive the requested permits.
WHEREAS, On the 6th day of July, 1987, Lynn W. Robertson,
Secretary for the Florida Land and Water Adjudicatory Commission
entered a Final Order which states in pertintent part, "While not
entitled to the requested permits, Lujan is entitled to a
specification of what changes in his proposal are necessary that
would make it eligible to receive a permit. Section 380.08(3),
Florida Statutes. Based on the evidence adduced at hearing, such
changes are as follows:
A. Prepare and submit a natural vegetation survey of the
island and access road in accordance with Chapter 18,
MCC, and provide reasonable assurances that clearing
will be minimized and will not adversely impact the
natural resources, scenic amenities and water quality
on and adjacent to the site.
B. Prepare and submit a site plan depicting the proposed
development and use of the island, and provide
reasonable assurances that the proposed development and
fill activities will not adversely affect natural
resources or water quality.
C. To secure a land clearing and fill permit within the
shoreline protection zone that Lujan provides
reasonable assurances that the access road is dedicated
for use solely as an access way or turnaround for
.single-family residences; that the principal structures
will be located as close as possible to the landward
edge of the site so as to reduce driveway length; that
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the access way provide for piped culverts at
appropriate intervals so as to maintain tidal regime;
and, that shoreline stabilization, storm surge
abatement, water quality, and marine resources habitat
and marine productivity, on or adjacent to the site,
will not be adversely impacted.
D. Prepare and submit a plan to mitigate the prior removal
of Bay Cedar, an endangered species.
E. Should the permits issue, provide reasonable assurances
that the cleared and filled areas be replanted in
ground cover if the development of Enchanted Island
should not begin within a reasonable time.
WHEREFORE, the parties hereto are desirous of having this
appeal voluntarily dismissed and of assuring that any development
of the subject island is consistent with the conservation of the
environmental values for which the DCA is obligated to protect.
NOW THEREFORE, in consideration of the premises and of the
mutual promises, covenants and agreements herein contained and
for other good and valuable consideration, the receipt of which
is hereby acknowledged by each of the parties hereto, the parties
hereby mutually agree as follows:
1. That Lujan will comply with paragraph 10, items A.
through E. of the recommended order of William J. Kendrick,
hearing officer, as adopted by and incorporated in the Final
Order of the Florida Land and Water Adjudicatory Commission, as
follows:
a. Lujan shall submit a vegetation survey prepared by
Dr. Earl Rich, President of Rio Palenque Research Corporation,
on October 18, 1987 and on April, 1979 to Monroe County.
b. Lujan shall prepare and submit a site plan to
Monroe County depicting the proposed development and use of the
island. The proposed development and use of the island will be
consistent with a suburban residential (SR) land use district
designation. The parties hereto acknowledge that the current
land usq district designation of Offshore Island (OS) is not
appropriate due to the pre—existing access road being in
existence prior to the adoption of the Florida Keys Comprehensive
Plan which was adopted February 28, 1986 and became effective
September 15, 1986. Therefore, Lujan shall immediately request
t
the Monroe County Planning Department to prepare and submit a Map
Amendment Petition to change the offshore (OS) land use district
designation to a land use district designation suburban
residential (SR). This`petition shall be admitted to the map
amendment process that is currently underway in Monroe County,
and shall be reviewed pursuant to the criteria established in
the Florida Keys Comprehensive Plan regarding amendments thereto.
The parties agree that they will make a good faith effort to
support the approval and final adoption of said map amendment
since the facts as they currently exist, support this amendment.
C. At the time of final major conditional use approval
and/or plat approval, Lujan shall dedicate said access road for
use solely as an access way or turnaround for single-family
residences. At Lujan's discretion, said dedication may be for
public or private use. Lujan shall locate all principle
structures as close as possible to the landward edge of the site,
as to reduce driveway length. The final recommendation of
paragraph 10 c. is provided for by way of the DER consent
agreement relating to the access road which requires, inter alia,
culverts. Lujan shall comply with the terms and conditions of the
DER consent agreement which provides for culverts to the access
road.
d. Lujan shall, plant 25 Bay Cedar trees on the upland
area of the island. The planting shall be 20 inch potted nursery
stock. Lujan shall insure, by a maintenance program approved by
the Monroe County Biologist, a 90% survival rate of the plantings
for a period of three years. Lujan shall re -plant at the same
size as necessary to accomplish the 90% 3 year survival rate.
e. Lujan shall, if development of the island should
not begin within two years from the date of this agreement, plant
an acceptable ground cover on the island.
2. Lujan shall take action to vacate and/or amend the plat,
when it becomes legally necessary to do so or as a condition of a
major conditional use approval.
3. Lujan shall be entitled to the maximum net density as
4
provided for by Section 9-302 of the Florida Keys Comprehensive
Plan by utilizing transferrable development rights and receiving
major conditional use approval pursuant to said Plan.
4. The parties acknowledge Lujan's obligation to complete
the access strip pursuant to Federal Court Order in Case No. 75-
150-CIV-EBD and 75-635-CIV-EBD and Exhibit 1 and upon execution
of this Agreement, Lujan shall be forthwith permitted to complete
the access strip hereto. However, prior to Lujan commencing the
completion of the access road, he shall comply with paragraph d.
above.
5. The aforereferred, Monroe County Building Permits do not
authorize filling or development of any submerged land, except as
required to complete the access road.
6. Any further development of the interior of Enchanted
Island would require compliance with all applicable, federal,
state and local rules, regulations and laws relating to
permitting any such future activities.
7. This Agreement is enforceable pursuant to Section 380.11,
Florida Statutes. The prevailing parties in any enforceable
proceeding shall be entitled to recover those costs and attorneys
fees allowed by law together with investigative costs and expenses
incurred in such proceeding.
8. Lujan agrees to record this executed Agreement with the
clerk of the Circuit Court in the Official Records of Monroe County,
which include the terms and conditions upon which approval for
development is given and said terms and conditions which run with
the land and enforceable against all successors, heirs or assigns of
the parties; additionally, Lujan shall provide to the Department
proof of recording this Agreement.
Upon receipt of proof of recording this Agreement, the
Department will file its Notice of Voluntary Dismissal in this
cause.
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IN WITNESS WHEREOF, the parties hereto have hereunto set
their hands and seals this day of ,
1988 at Rey West, Monroe County, Florida.
Signed, sealed and delivered
in the presence of:
as tb Lu j an's
as to DCA
DANNY L. KOLHACr
as to Monr�te Count
1 • i%' s V i
By:
STATE OF FLORIDA, DEPARTMENT
OF COMMUNITY AFFAIRS
MONROE COUNTY
By :
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