Resolution 402-1989
Monroe County Commission
RESOLUTION NO. 402 -1989
A RESOLUTION OF THE BOARD OF COUNTY COMMIS-
SIONERS OF MONROE COUNTY, FLORIDA, AUTHORIZING
THE COUNTY ATTORNEY TO EXECUTE ON BEHALF OF
MONROE COUNTY, FLORIDA, A JOINT STIPULATION AND
SETTLEMENT AGREEMENT IN THE LAWSUIT OF BROEMAN V.
MONROE COUNTY, CASE NO. 87-20-283-CA-18.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, that the County Attorney is hereby
authorized to execute on behalf of Monroe County, Florida, a
joint stipulation and settlement agreement in the case of Broeman
v. Monroe County, Case No. 87-20-283-CA-18, a copy of said
stipulation being attached hereto and incorporated by reference.
PASSED AND ADOPTED by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of said Board held
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on the ~-;. day of '-J Un -e. , A. D. 1989.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
BY: .AW~a
(Seal)
Attest :DA.NN'X L. KOLIlAGE, Clerk
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IN THE CIRCUIT COURT OF THE
16TH JUDICIAL CIRCUIT IN AND
FOR MONROE COUNTY, FLORIDA
CASE NO. 87-20-283-CA-18
CHARLES W. BROEMAN, II, and
SHARON L. BROEMAN, his wife,
et al.,
Plaintiffs,
MONROE COUNTY, a political
subdivision of the State of
Florida,
STIPULATION FOR SETTLEMENT
BETWEEN PLAINTIFFS AND
MONROE COUNTY
vs.
Defendant,
STATE OF FLORIDA DEPARTMENT
OF COMMUNITY AFFAIRS,
Defendants/lntervenor.
/
COMES NOW the Plaintiffs, CHARLES W. BROEMAN, II, and SHARON L.
BROEMAN, his wife, et al., and the Defendant, MONROE COUNTY, by and through
their undersigned attorneys and files this their Joint Stipulation/Settlement Agreement,
the terms of which are as follows:
1. The parties, CHARLES W. BROEMAN, II, and SHARON L. BROEMAN, his
.
wife, et al., and MONROE COUNTY, a political subdivision of the State of Florida,
agree that Monroe County shall issue a completely new two-phase building permit,
allowing the, Plaintiffs to resolve the water quality problems in DISPATCH CREEK
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Said Monroe County Building permit shall be issued and be conditional upon
acquisition of all necessary Federal and State permits to accomplish the work as
specified in Exhibit IIAII.
2. Upon the issuance of the said Monroe County permit the Plaintiff shall me
a voluntary dismissal in this cause. The issuance of said permit will be
communicated to the State of Florida, Department of Community Affairs and all other
concerned agencies on an immediate basis by Monroe County. The issuance of the
said Monroe County permit shall be considered to be a "development order" within
the meaning of Florida Statutes, Chapter 380.
3. The said Monroe County permit shall have the same standing and dignity
as other. development orders issued by Monroe County and shall be administered
and proceed according to applicable laws and regulations. The work contemplated
under phase n of the said permit shall be conditioned upon successful completion of
the work contemplated under phase I according to the terms and conditions of
Exhibit "A". Phase n work will not commence until successful completion required of
phase I. If phase II fails to work, phase I will be continued until resolution of the
matter.
4. That should an appeal be taken by the State of Florida, Department of
Community Affairs or any other interested agency or party it is agreed between these
parties that all aspects of this permit shall be tolled until a resolution of said appeal.
6. The permit referred to in paragraph 1 above and Exhibit "A" shall be
issued by Monroe County within ten (10) days of the execution of this Stipulation by
the parties.
6. That the parties agree that each of the respective parties shall bear their
own costs and attorneys fees with reference to the matters set forth herein and the
subject matter of this suit.
7. That this agreement shall be executed by an attorney for each party to this
.stipulation and the said attorney represents that he has the full power and authority
to execute this agreement on behalf of his client.
8. That there are no agreements, either oral or written, concerning the
subject matt~ to this stipulation that are not set forth herein and no such oral or
written agreement shall be binding upon any of the parties.
9. The parties agree that it is not necessary to have the State of Florida,
Department of Community Affairs, the Administration Commission or any other party
to this suit join with this stipulation due to the fact that they have appeal rights under
Florida Statutes, Chapter 380 and provisions of the Florida Administrative Code which
fully protect their rights with regard to the permit/development order.
WHEREFORE, the parties have set their hands and seals through their
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respective attorneys this ---L- day of
. '"- ,.
, 1989.
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Randy Ludacer, Esquire
Monroe County Attorney
310 Fleming Street
Key West, Florida 33040
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LAW OFFICES
'I'I'I"I'I...E ~ '1'1'1"1'1...1_:, Pd\.
FRED TITTLE
CHARLES p, TITTLE
GUS H, CROWELL
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April 21, 1989
Mr. Donald Leland Craig, Assistant County Administrator
Director, Division of Growth Management
Monroe County
5825 Junior College Road, West
Wing III, Stock Island
Key West, Florida 33040
Re: Dispatch Creek Flushing Canal Permit
Dear Mr. Craig:
Pursuant to the letter, dated April 14, 1989, from George Garrett,
Environmental Resources Coordinator, to me, the following is what
we would suggest as corrected copy of the County's conditions:
This letter serves as confirmation of the conditions to be placed
on the Dispatch Creek flushing canal proposal which we have
verbally agreed upon in past conversations.
A statement of the situation establishes the following facts:
......
1. Dispatch Creek consists of a natural mangrove slough and
an improved canal which extends from the ocean over a distance
of approximately 1.5 miles (+-). The portion in question is
the improved portion which is showing considerable water
quality degradation. This canal is located within Ocean Reef
Club and extends. northeast to southwest in an archuate
pattern.
2. Dispatch Creek presently has very poor flushing capacity.
3. As a result of poorly understood hydrologic, biologic, and
bio~hemical regimes, Hydrogen Sulfide and allied compounds
have been found to exist in Dispatch Creek in high
concentrations.
4. The resultant combination of poor flushing and sulfide
have created a nearly unbearable ambient odor for residents
near the creek.
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EX~imn A -. .
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5. Property owners and other interested parties within the
Ocean Reef Club complex have proposed the elimination of the
problem.
Based, on considerable discussion over the past two years the
County, on December 61 19881 agreed to a program to remedy and
analyze the recognized concerns of the property owners and
permitters. The following special permit conditions were agreed
upon in concept by the Monroe County Board of County Commissioners,
the Monroe County Growth Management Divisionl and representatives
for the permit applicants.
GENERAL CONDITIONS:
1. This is a two phased permit which first requires
improving water quality in Dispatch Creek and then allows
a one way flushing canal to be connected to the Atlantic
Ocean from the landward terminus of the creek.
2. Prior to any dredgingl water quality must meet specified
standards established in permits from other state and
federal agencies for canal construction and must be
obtained for review by Monroe County.
SPECIFIC CONDITIONS:
1. An aeration system designed and constructed by the
applicants will be installedl operated and maintained in
the southeastern or terminal end of Dispatch Creek in
accordance with the plans submitted to the Growth
Management Division on 17 February 1988 (dated 30
November 1987 and supplemented 9 February 1988). This
will act to'aerate the currently anaerobic water column
in Dispatch Creek and oxidize organic components creating
the noxious odor.
2. Final design plans and specifications for all project
components shall be submi tted by the applicant, and
approved in writing by the Director of Growth Management,
not later than June 301 1989.
3. The applicant shall install and begin operation of the
aeration system within 90 days from issuance of all
necessary permits.
4. The applicant shall provide an operational plan for the
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system specifying method of operation, maintenance
schedule and repair.
5. Aeration system shall be operated continuously for a
period of not less than one year.
6. All maintenance, operations and repair of the system
shall be entirely the responsibility of the applicant,
with no cost to the County for these activities.
7. A water quality monitoring program has been established
to assess the success of the aeration process and
infusion of bacterial agents improving basic water
quality components of the Dispatch Creek system. A
report written by Mr. Jack Bateman, consultant to the
applicant, in November, 1988, established the criteria
for monitoring a program and is, therefore, incorporated
by reference to the conditions of this permit.
The first year establishes a rigorous program of weekly,
bi-weekly, monthly, quarterly, and semi-annual sampling
frequencies. Sampling sulfite, and sufate
concentrations, total nitrogen and phosphate, heavy
metals and pesticides, and counts and quantification of,
bacteria, macro-invertebrates and macrophytes.
The sampling methodology shall be designed to accomplish
the following: ( 1 .) A determination of relative changes
in the ambient water..... quality of Dispatch Creek by
sampling with high frequency. (2.) Based on the high
frequency of sampling, a decision about short term
(monthly and quarterly) success of the project and
whether it should be continued or not may be made.
8. Angelfish Creek and pristine tidal flow portions' of
Dispatch Creek will be utilized as a UcontrolU, for the
same regime of water quality analysis. Sampling sites
are referenced in Mr. Bateman's repot-t. Based on a
statistical comparison of all parameters, excluding
color, before and after project initiation, a decision
will be made ]:,.1 the applicants and Monroe County as
whether a sufficient level of water quality enhancement
has been achieved. The clarity of the water shall be
comparable to that in other dredged navigable waterways
at Ocean Reef. If water quality has been enhanced
sufficiently, then the second phase of the project may
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proceed. In essence, within the limits of normal water
quali ty in pristine mangrove creeks, Dispatch Creek
should not further degrade adjacent Class III,
Outstanding Florida Waters if phase two is completed.
9. Phase two shall consist of the construction of a one-way
flushing canal which directs water flow from the new
entrance to the Atlantic Ocean, as provided in this
permit, toward the existing mouth of the creek.
10. The canal alignment shall begin at the landward terminus
of Dispatch Creek and run completely landward within the
rear lot line boundaries of certain lots, Harbor Course
Subdivision. The canal shall terminate at the Atlantic
Ocean at the closest approach to the ocean through the
existing mangrove fringe. The attached map 1 indicates
the location of the canal.
11. The one way flapper valve shall be placed at the terminal
end of the creek or as stated in the DER Permit Number
440937479i "at the landward end of the circulating
canal", and permanent posts shall be installed at the
Atlantic end to prevent boater access or egress.
12. All construction shall be carried out from the Harbor
Course Subdivision side of the proposed alignment in
order to prevent damag~to otherwise undisturbed habitat
identified on Map 1.
13. The agreed mitigation for the loss of all rare and/or
endangered habitat types located within the area impacted
by the dredging shall be carried out prior to initiation
of the dredg~ project. This shall be based on existing
vegetation surveys and an assessment of species currently
located within the confines of the project area. Prior
to intiation of any dredge activity, a formal inventory
of the project site shall be made and a one-to-one
replacement program (based on species rarity or level of
endangerment) shall be established and agreed upon. Such
an agreement will include defining an appropriate site
and the number and type of trees, as well as a
maintenance plan for the agreed upon area.
14. The water quality monitoring program shall be maintained
to assess the quality of water in Dispatch Creek
subsequent to the dredge project completion. If at any
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time the water quality fails to meet the standards
established by this permit, the one way flushing valve
shall be closed by the applicant, and in applicant' s
failure to do so, by the County. The applicant assumes
all costs of closing said valve, whether closed by
applicant or the County. Aeration, and/or other means
at the discretion of the applicant, shall be utilized to
re-establish quality. The valve shall not be reopened
until the water quality standard is met.
15. Prior to permitting the dredge project, all required
State and Federal permits must be obtained for
presentation to Monroe County. Such permits include, but
are not limited to, those from the Florida Department of
Environmental Regulation, Florida Department of Natural
Resources, and the United States Army Corps of Engineers.
16.
Any violation of
constitute grounds
permi t and subj ect
review for remedial
the terms of this permit shall
for immediate revocation of this
the applicant to code enforcement
action and penalties.
The addresses for the purpose of all required correspondence and
report submittals shall be:
Donald Leland Craig
Director of Growth Management
Monroe County
5825 Junior College Road
Wing III, Stock Island
Key West, Florida 33040
Ocean Reef rmprovement Association
120 Anchor Drive
Key Largo Florida 33037
Ocean Reef Property Owners Association
Ocean Reef Plaza
31 Ocean Reef Drive
Key Largo, Florida 33037
C. W. Broeman, II
Representative of Property Owners
On Dispatch Creek
30 South Harbor Drive
Key Largo Florida 33037
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Hopefully these suggested changes conform in essence to our verbal
agreements heretofore made. We agree with the general method of
procedure suggested in the last paragraph of your April 14, 1989
letter.
By a copy of this letter to County Attorney Randy Ludacer, we
respectively request that he set this stipulated settlement matter
for the earliest possible County Commission meeting.
Very truly yours,
Fred Tittle
FT/jc
cc: George Garrett
Bob Herman
C.W. Broeman
Randy Ludacer, Esquire
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