HomeMy WebLinkAbout11081993i
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City of Sebastian
1225 MAIN STREET D SEBASTIAN, FLORIDA 32958
TELEPHONE (407) 589-5330 g FAX (407) 589-5570
AGENDA
i SEBASTIAN CITY COUNCIL
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SPECIAL MEETING
MONDAY, NOVEMB~ 8, 1993 - 7:00 P.M.
CITY COUNCIL CHAMBERS
1225 MAIN STREET, SEBASTIAN, FLORIDA
ALL PROPOSED ORDiNANCES AND INFORMATION ON ITEMS
BELOW MAY BE INSPECTED IN THE OFFICE OF THE CITY CLERK,
CITY HALL, 1225 MAiN STREET, SEBASTIAN, FLORIDA.
PURPOSE:
Discuss Habitat Conservation Plan
Implementation
1. CALL TO ORDER
2. PLEDGE OF ALLEGIANCE
3. ROLL CALL
93.336/ 4.
92.213
DISCUSS HABITAT CONSERVATION ~ IMPLEMENTATION
(Director of Community Transmittal dated 11/2/93 -
List of Events and Exhibits)
5. ADJOURN
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ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE BY THE CITY
COUNCIL WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING (OR
HEARING) WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO
ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH
RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL
IS TO BE HEARD. (286.0105 F.S.)
City of Sebastian
POST OFFICE BOX 780127 [] SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330 D FAX (407) 589*5570
SUBJECT:
SPECIAL MEETING REGARDING HABITAT
CONSERVATION PLA~ FOR SCRUB JAY
Approval For Submittal By:
City Manager
) Agenda Number: ~ ~.~
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) Dept. Origin: ~ommunitv D..e. veloPmg, nt
) (BC~
) Date Submitted: .... 11~/2/93. ....
)
) For Agenda Of: 11/Q8/93 ......
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) Exhibits: See list below of exhibits
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EXPENDITURE
REQUIRED:
AMOUNT
BUDGETED:
APPROPRIATION
REQUIRED:
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SUM~Y STATEMENT
In the last couple of years, the City of Sebastian has been placed in a
precarious situation regarding Fish & wildlife,s position on scrub jay
habitat and the issuance of development permits throughout the City. It is
apparent with recent discussions with Fish and Wildlife that they are
post~ring to take a more active roll in requiring the City to pursue a HCP or
refuse to stop issuing letters of approval for construction within the City
of Sebastian. Before getting into the specific issues, below is a
chronological list of events and correspondences in your packet that has
transpired and leading to this meeting regarding the HCP:
DATE
EVENTS & EXHIBITS
April 7, 1992
Carolyn Corum sends a note to Robb McClary and attaches
Fish & Wildlife's letter dated August 5, 1991 to Mayor
Conyers. This letter from Fish & Wildlife never was
disseminated to City staff therefore, staff was not aware
of Fish & Wildlife's position at that time. Apparently,
Mayor Conyers received his own mail and the City Clerk's
office was not aware of this letter.
Page 2
DATE
June 9, 1992
June 16, 1992
June 17, 1992
July 22, 1992
July 31, 1992
July 29, 1992
EVENTS & EXHIBITS
A meeting was held between City staff, State and ·
Federal Officials regarding the scrub jay habitat
and their concerns. The results of this meeting
are outlined in the next event. ·
Letter to Brian Toland from Richard Torpy
requesting a map from Mr. Toland I
identifying the
scrub jay areas, in turn, the City would require
all parties involved requesting development within
these areas to obtain permission from both State
and Federal agencies. A notice was also preparedl
and given to all perspective permit holders for·
landclearing within the City of Sebastian to advise
them of the Endangered Species Act and the scrub·
jay in particular.
Letter from Richard Torpy to Robert McClary
requesting the scrub jay item to be placed on City
Council's agenda to discuss and pursue any specific
action City Council may wish to take.
The City Council reviewed the proposed policy
regarding scrub jay habitat which has been outlined
by the Assistant City Attorney and City Council
directed the attorney to draft an ordinance
implementing the above reference policy.
Letter received via fax from Fish & Wildlife
authorizing construction on a specific Sebastian
Highlands lot. This is one of the first letters
from Fish & Wildlife giving authorization and
implementing our policy to obtain permission from
Fish & Wildlife prior to issuing a landclearing
permit. The City has received approximately 40
letters of approval between July 92 and October 93.
Letter from Bruce Cooper to Brian Toland clarifying
scrub habitat map Mr. Toland provided to the City3~
This letter was sent to Brian Toland clarifyin{
what staff believes the map represents regarding
scrub habitat and also requested an agreement ·
signed by Florida Game & Fresh Water Fish
Commission but, the City has never received a
signed agreement back from Mr. Toland.
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August 12, 1992
April 4, 1993
Bruce Cooper holds a public information workshop
regarding scrub jay. This meeting was to advise
contractors and other interested parties regarding
the policy of the City of Sebastian regarding Fish
& Wildlife's position of the scrub jay habitat.
The City Attorney advises the City Council there is
no need for an ordinance as directed on July 22,
1992 since staff has implemented.the procedures
administratively.
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April 20, 1993
April 23, 1993
April 27, 1993
September 10, 1993
October 1, 1993
The Press Journal has an article quoting Dawn
Zattau of Fish & Wildlife that the City of
Sebastian has made no effort towards obtaining a
Habitat Conservation Plan and making a statement
that there will come a point.when development in
Sebastian will stop. While making statements to
the reporter regarding this article, staff was not
aware of the position of Dawn Zattau and her
statement that there will come a point when
development will stop in Sebastian. Of course,
this statement disturbed me, to say the least. I
decided to see if we could get any assistance from
Congressman Jim Bacchus's office.
Letter from Richard Torpy to Bruce Cooper regarding
staff's contact to Congressman Jim Bacchus's office
and Fish & Wildlife's position regarding
construction within the City.
Letter from Richard Torpy to Dawn Hamilton,
Assistant to Congressman Jim Bacchus: The City has
not received anything official from Congressman Jim
Bacchus after these letters but, Dawn Hamilton has
advised that their office will not intervene and we
would have to deal with the federal government.
Letter from Fish & Wildlife to Mr. Tom McMullen in
which Mr. McMullen was pursuing the development of
some portion of Unit 17 that G.D.C. has never
constructed. This letter represents Fish &
Wildlife's non-objection except for Block 588.
Letter from Bruce Cooper to Roland DeBlois
submitting an application to the County
Environmental Land Acquisition Project identifying
five areas of concern that Brian Toland has
previously mentioned to City staff. This
application was made as an "open application" to
ensure that if the City does pursue an HCP, that
the City would be able to pursue funding from the
County's 26 million dollar fund for the purchase of
certain properties.
Page Four
October 5, 1993
October 5, 1993
November 2, 1993
Letter from Fish & Wildlife to Mr. Tom McMullen
ch~/~ging
their
position regarding all of the block.
that Mr. McMullen was requesting approval from.
Staff has contacted Dawn Zattau in regards to thi~
letter and have determined that their letter
only dealing with the requested lots from Mr
McMullen and not the remaining area of unit 17.
This letter represents the start of Fish
Wildlife's position. They have not denied an
single lot, as of now.
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Memo from Bruce Cooper to City Council regarding m~
notes from two previous meetings with Fish &
Wildlife, Brevard County and Brian Toland.
Letter from Richard Torpy to Bruce Cooper regarding
the issues that City Council need to addres~m
regarding scrub jay habitat.
In order to ensure that the typical lot owner would not be deprived o.~
building, staff has tried to work diligently with Fish & Wildlife regardin(
single family development on existing platted lots of record and until the
newspaper article of April 20, 1993, staff believed that everything wail
working out pretty good by requiring homeowners to obtain letters of approva~
from Fish & Wildlife.
I have strongly advocated the following position, Fish & Wildlife shoul¢l
leave alone the existing platted lots of record (Sebastian Highlands) and
City would require the large undeveloped tracts of land to work with Fish &
Wildlife to preserve Habitat but, still leave enough for development. Fis~
& Wildlife will only listen if, the City pursues a HCP.
Although Fish & Wildlife's attendance to this meeting is to discuss the HCP~
I have included in your packet the introduction sheet of the "Interi~
Guidance for Habitat Conservation Planning Manual,, to give you some insight
of the HCP. If you wish to have a copy of the manual or any other material~.
such as the Endangered Species Act of 1973, please let me know.
Below are three positions the Assistant City Attorney and myself believe the
City Council needs to review in order to give some direction to staff in thi~
matter:
Continue the same process of requiring homeowners orcontractors to~
receive approval from Fish & Wildlife for construction. This optio
exposes the City to the least liability but, Fish and Wildlife will--
probably stop the letters of approval and the homeowner will be left
alone to resolve the matter with the Federal Government. In turn, Fis~
& Wildlife will inform the homeowner there's a better way, which is
have the City pursue HCP.
Page 5
The City can pursue the HCP process in order to satisfy the Fish &
Wildlife Department. This will be an economic impact to the City but at
this time, nobody can tell how much. My notes from the meeting of
August 5, 1993 gives you some insight of potential costs.
Issue permits to land owners regardless of the Federal regulations and
possible liability the City may encounter. By the time of the meeting
of November 8, 1993, the Assistant City Attorney would have completed
his research and can advise the City Council of any repercussions
(fines, etc.) of this position.
RECOMMENDED ACTION
Discuss with Fish & Wildlife the Habitat Conservation Plan.
City of Sebastian
POST OFFICE BOX 780127 n SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330 D FAX (407) 589-5570
R E CF_.,tVF' F...: APR
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August 5, 1991
W.E. Conyers, Mayor
City of Sebastian
1225 Main Street
Sebastian, Florida 32958
Dear Mayor Conyers:
Sebastian contains areas of habitat known as "scrub," which is defined as a sandy area
which supports a dense, but often patchy, layer of woody shrubs, with little or no
grassy groundcover. Typical plants which grow here include sand live oak, myrtle oak,
inopine oak, and Chapman oak, along with saw palmetto, scrub palmetto, scattered
sand pine, and rosemary. This type of habitat may be occupied by Florida scrub jays,
which are federally listed as a threatened species.
The Florida scrub jay is provided protection under the Endangered Species Act of
1973 (Act), as amended (16 U.S.C. 1531-1543), and by regulations promulgated
thereunder (50 CFR Part 17). Section 9 of this federal statute and the implementing
regulations prohibit the "take" of any endangered or threatened species. Take is
defined to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct. Harm and harass are further
defined in the Code of Federal Regulations; harass is defined as an intentional or
negligent act or omission which creates the likelihood of injury to wildlife by annoying
it to such an extent as to significantly disrupt normal behavioral patterns which
include, but are not limited to, breeding, feeding, or sheltering. Harm is further
defined as an act which actually kills or injures wildlife. Therefore, any activity or
omission, including disruption or modification of habitat occupied by scrub jays, which
significantly alters the behavior of the jays or creates the likelihood of injury or death
to the birds, may cdnstitute a violation of Section 9 of the Act.
As a governmental entity which issues permits allowing private landowners to develop
their property, you are responsible for ensuring that activities authorized by the
municipality will not be harmful to the scrub jays or any other listed species. The
prohibitions against take apply to persons, and in 1988 the Act was amended to
broaden the meaning of person to include "... any state, municipality, or political
subdivision of the state."
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Although this may appear to be a burden, there is a procedure to resolve conflicts.
Under the Endangered Species Act, there are two ways private landowners who wish
to develop land containing federally-protected species may legally "take" a threatened
or endangered species. The fi~st is through Section 7 of the Act, which would be
used if any federal permit, authorization, or funding was received to develop the
property. In some cases, this involves a permit for wetland fill by the U.S. Army
Corps of Engineers; however, there are many other federal permits that may have the
same requirements.
The second alternative is described in Section 10(a) of the Act. In this instance, a
permit authorizing incidental take can be issued by the Service provided the applicant
institutes appropriate conservation measure~ for habitat maintenance, enhancement,
and protection, coincident with the proposed activity. The conservation measures are
outlined in a Habitat Conservation Plan (I-ICP), a mandatory component of any
Section 10(a) permit for talcing. An HCP must show that 1) the tak"ing is incidental,
2).impacts to the species will be held to a minimum and unavoidable impacts
mitigated, 3) there must be adequate funding for the plan, 4) the taking will not
jeopardize the continued existence of the species, and 5) other site spec~c needs that
may develop on a ease by case basis.
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Our office is interested in working with counties and municipalities to develop HCP's
for the Florida scrub jay. In the event you receive an application for development
within scrub habitat, we suggest you contact this office for further information on how
you or the applicant can obtain a permit to authorize "take" of scrub jays, or how you
may begin the HCP process. If you have any questions, please feel free to call me or
Dawn Zattau of this office for further information. You can reach us at 904-1~1-
2580. Thank you for your interest in endangered species.
Sincerely yours,
David J. Wesley
~-SENOER: Complete items 1 end 2 when additional aewicel ere deiirld, end cmpMte itel
3 ~nd 4.
=ut TOur =~reS$ in the "RETURN TO" 5Dl~e on the r~rSe I~e. Flilu~e fo do Ibis ~l ~l thil
:tuff,be,m} reiD,ted lo ~u. T~e return r~CeiDt fee will ~e ~ba fi~me of the p~rl~n del~re~ to
I. :~ ~how to whom ~e~ivured. date. Ind Id~tlitl'l idd~el$. 2. ~ Reltri~ld DMive~
~. ~mcle ~resse~ ~o: ~. ~cle Mumber
Ty~ o~ Se~Ce:
~ITY 0F ~EBASTIAH ~ ~egistere~ ~
- for
or agent an~ DATE DELIVERED.
5. S,gnalu, .- A~essee 8. Addressee's AddreSs tONLY
~ - re~e.sted and J~e ~id)
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~ '.rOe e o ~ehCe v
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June 16, 1992
Mr. Brian Toland
Game and Freshwater Fish Commission
110 - 43rd Avenue
Veto Beach, FL 32960
Dear Mr. Toland:
This letter is to follow-up our meeting on June 9, 1992, in ~he
I City of ~ebasttan, regarding the City. of Sebastian's policy for
dealing with scrub jay habltat and nestang areas. As was concluded
at that meeting, it appears that the best course of action for=he
i City of Sebastian to take, for the purpose of protecting=he scrub.
jay habitat and nesting areas from harm due to development, is to
implement a two phase process.
I The first phase, which is evidenced the letter
by
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attache~,
is simply to put all persons seeking any type of development permit
on notice of the requirements of the State and Federal agencies.
I The second, which requires your assistance, is to identify known
scrub jay habitat within =he City of Sebastian and require all
i parties wishing to develop this area to first obtain State and
Federal permits, as required. Accordingly, i am requesting =hat
you forward to the City of Sebastian the maps you have been working
on which ~dentify those areas within the. City of Sebastian which
I are known, scrub jay habitat or nesting areas. It is
my
understandIng that you have been mapping=hese matters for several
years and have all of the biographical data which is necessary to
I complete such a project. Further, it is also my understanding that
you have been conducting =his work in conjunction with your
employment with the State Game and Freshwater Fish Commission..
i Therefore, it is our intention to use this map due to the fact =hat
it is prepared by a State agency and, contains data which we can
rely upon.
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Mr. Brian Toland
JuDe 16, 1992
Page -2-
I would appre¢ia=e if you would
can provider, his informa=ion =o us so we can de=cz-mine when we will
be able =o procee~ wi~.h proper legisla=ion =o enac= this policy.
give us a time frame in which you
If you have any questions regarding these mat=er, please
con~.a c'c i
Sincerely,
FRZSE, NASH & TORPY, P.A. ~
R/chard 2. Torpy
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RET/lbg
~n¢losure
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Robert S. McClary, City of Sebastian
Bruce Cooper, city of Sebastian
Ci y of Sebastian
POST OFFICE BOX
I ~E~=~E,C= ,'- LOT . . BLO== ..... . U,IT, .......
I Your prc~ec~'~a¥ be within habi~a~ u~lli'zed by ~he Tlorida
Scrub Jay. a bird on the federal ~hrea%ened s ecies
?here~ore. ~he Cl~¥ of $ebas~ia~ --~ .... =- p ..... ~s~.
clearing, you con~ac~ ~he United SEa,es Fish and
Service (USFWS) a~ (9~4)-791-258e io~.requ£red consul:atica
I under ~he Endangered Species Ac=.
According ~o =he US~WS. %bls consulEa=ion m~s= occur because
of ~he requiremen~s of =he End. nsc=ed Species Ac= (I$ U.S.C.
I 15~1-1~43) regarding" =be responsibili%ies in
endangered and =hrea=ened species. The Endangered Spec/es'
Ac= and inp!emen=lng regulations found in SO CFR Par= 17.
I prohibl= _=~e '}ake' o2 any endangered or =hrea=ened speclis
wl%hou= receral au%horlza=lon. Take is dellned %o include,
anong o%her ac=lvltles. =he harassnen= or harming of
I wlldl!!e and planes regula=ed under %he law. Fur=her, any
ac%ivi~y or on/ss/on, including dtsrup%ion
os modtflca=lon
of babies= occupied by a ~hrea=ened or endangered species,
which signli£can=ly al=ers =he behavior or crea%es
i likelihood o~ in~ur¥ or dea=h,.na¥ cons~i=u=e a viola=ion
=he Endangered ~pecies Ac=. Ac=ivt=y in ~his con=ex~ can
include, according %o USYWS,
~he ac=l~ns o~ local
I governmen%s.
The City of Sebastian has no au~hor!~¥ ~o issue ~he permits
I required by =he Endangered Species Act wi=h regard =o Scrub
Jays. The Ci=y of'Sebas%lan's approval of your
should =herefore no~ be cons=rued ~c authorize ac=ions =ha=
i ma~ vlola=e ~he Endangered Species Ac~.
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City of Seb'as=l'an Issuing Agen=
~' ~. ~'~. ~T ' -- 505
v ~ ~- To~ Ja ~o~ ~A32901
J~e 17, 1992
P.O. BOX 780Z27
--e. Scr~ Ja'-
I Dear Robb:
Based on a meeting t_hat was held in Sebastian between State,
Federal and Local officials regarding the issues involving ~he
scrub jay habitat, I believe ~he following should be enacted to
protect t_he City of Sebastian from liability for violation of
State and Federal law.
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First, the notice which has been prepared by Bruce Cooper, and is
attached hereto, should immediately be distributed to all persons
wishing to develop within the City of Sebastian. This notice is
to advise persons wishing to develop or clear land of the need to
inspect their land for potential scrub jay habitat.
Second, I have requested a map from the Game'and Freshwater Fish
Commission, ~-hich has been prepared by NJ. Brimn To!and, showing
all the known scrub jay habitat and nesting areas within the City
of Sebastian (copy of letter attached). After this map is
obtained, it is my proposal that the City of Sebastian adopt an
ordinance requiring, as a pre-condition to development, that any
person wishing to develop property within areas designated as known
scrub jay habitats, by %he State's map, be required to first obtain
the necessary State and Federal permits.
It is my belief that this will only impact development in those
areas specifically designated as known scrub jay'habitat. Further,
if we do not implement such a policy, the City will expose itself
to severe liability for violation of the Federal Regulations with
regard to disturbing these habitats.
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Robe~ $. McClary
June 16, 1992
Page -2-
Accordingly, I would request =ha= %his proposal be presented to
city
Council for =heir approval and authorization be given t~
prepare the necessary ordinance. Bruce Cooper and I have discussed
=his issue a= length and he has mos= of =he information T_hat will
be necessary =o inform Council of the liabilities =hat we are
experiencing. Of course, I would be happy =o discuss 't_his mat=er
with you at leng~_h. Also, I would be happy to attend a Council,
meeting for p._urposes of explaining this issue to the City Council.
I have diaried my file for fifteen days for the purpose of
contacting you again to determine how you wish for me to proceed
with this issue.
RXT/lbg
Sincerely,
FRESi, NASH & TORPY, P.A. I
Richard E. Torpy
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Bruce Cooper
Charles Ian Nash
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Regular CiTy Council Mee=ing
July 22, 1992
Page Nine
Mrs. Corum commended the City Planner for her
environmental efforts.
Mayor Conyers called recess at 8:11 p.m. and
reoonvened the meeting at 8:26 p.m. All members were
present.
12. CITY ATTORFEY MATTERS
I 92.213 A.--Enact ~ Re: Scrub ~ Habitat (Cl%~. Atto~ey
Letters dated 6/17/92 & 6/16/92, Noticel
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John King, 182 Delmonte Road, Sebastian, expressed
concern for proposed city policies'to comply wi~h
state and federal regulations on endangered species.
The City Attorney clarified the possible imposition
of penalties to T_he city if it neglects to comply
with these regulations, and recommended an ordinance
be adopted to set out procedures for property owners
in certain areas tO obtain permits from state and
federal agencies prior to obtaining a building permit
from the city.
A lengthy discussion followed.
TAPE II - SIDE I
The Director of Community Development said his office
had compiled a list of those lots affected by the
regulation.
MOTION by Oberbeck/Reid
I would move to enact the policy.
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ROLL CALL:
Mayor Powell aye
Mr. 0berbeok aye
Mrs. Corum aye
Dr. Holyk aye
Mr. Reid aye
MOTION CARRIED 5-0.
The effect of the motion was to direct the City
Attorney to draft an ordinance.
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i July 31, 1992
Fmuk
I O~cc Hom~
~'.o. Box
I TMs b In rosponse to your t~ tr~lmltml ds~ed July 31, 1992, in which ~u fo~~
pl~ d~a~g a ~b ~de ~ ~r · lot ~ S~ ~M~dl ~t 3, Bl~k '
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im~ F~fl~ ~b jtys. H ~ h not ~p~ ou~ of n~ s~n ~ i
~gh'l~, 30), it ~Ii be n~~ ~ s~ey ~e lot for ~ ~b jiy n~ ~or m
~y ~er ~d ~g. If you ht~ ~y qu~ons, pl~ ~ ~ ~u. ~e
numb~ b ~2~-2~. ~k you for ~e ~nity to ~mment.
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i *ssht~m su]~rvlm~
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CC::
DL.-~c~or vi' Communi9, Development
Ci~ of Sob~tia~
P,O, lk~ 780~.7
S~, PL, 32978..0127
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City of Sebastian
POST OFF~CE BOX 780127 [] SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330 [] FAX (407) 589-5570
July 29, 1992
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Mr. Brian Toland
Game and Freshwater Fish Commission
110 - 43rd Avenue
Vero Beach. FL 32960
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Reference:
Scrub Habitat Map
Dear Hr. Toland:
With reference to the Scrub Habitat Map which you provided
as an overlay to the City's Zoning Map, the following
clarifications are in order. Staff understands~
All areas bound in yellow pertain to functional
habitat, which can be identified by the actual scrub
vegetation and white sandy areas typical of other scrub
habitat elsewhere in the Treasure Coast Region. The
areas within those yellow boundaries which have been
crossed-hatched pertain to areas carefully surveyed by
Florida Freshwater Fish & Game Commission and contain
nesting sites and banded individual birds.
Areas bound in red are "wildlife sinks" represented by
Waxed Myrtle vegetation and other growt~ not typical of
functioning scrub habitat. However, those sites
contain functioning nests and scrub jay families which
have utilized the locations over the period of the
family life span and have been monitored and banded by
the Florida Game and Freshwater Fish Commission's
biology staff.
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Our use of the map reguires a recognition that while the
habitat identified on the map is maintained during each
successive year through natural growth and refurbishment, it
may migrate slightly within a 10% level of significance in
any one year. Thus, we understand that the list of affected
properties which we created from this map may change from
time to time.
Brian Toland
July 29, 1992
Page 2
Our commitment, at this time, to this preservation effort is
to require that, a~ a pre-condition to development, any
developers or property owners contact the U.S. Fish and
Wildlife Service and/or, during nesting season, Your.off/ce
to ascertain further steps before site development, if by
virtue of the data shown on %he map, they believe that their
property is within scrub habitat or a nesting family's
foraging area.
We are encouraged by your assistance in this regard and
shall continue to work with you as we plan the future steps
of preservation of scrub within the City of Sebastian as
directed by City Council. Thank you for your time and
attention to this all important issue.
B ~ce~" C~op~r
Director of Community Development
BC/gk
roland.wp
INTERIM SCRUB HABITAT CONSERVATION AGREEMENT
With reference to the Scrub Habitat Map which you provided
as an overlay to the City's Zoning Map. the following
clarifications are in order. Staff understands~
All areas bound in yellow pertain to functional
habitat, which can be identified by the actual scrub
vegetation and white sandy areas typical of other scrub
habitat elsewhere in the Treasure Coast Region. The
areas within those yellow boundaries which have been
crossed-hatched pertain to areas carefully surveyed by
Florida Freshwater Fish & Game Commission and contain
nesting sites and banded individual birds.
Areas bound in red are "wildlife sinks", represented by
Waxed Myrtle vegetation and other growth not typical of
functioning scrub habitat. However, those sites
contain functioning nests and scrub jay families which
have utilized the locations over the period of the
family life span and have been monitored and banded by
the Florida Game and Freshwater Fish Commission's
biology staff.
Our use of the map requires a recognition that while the
habitat identified on the map is maintained during each
successive year through natural growth and refurbishment, it
may migrate slightly within a 10% level of significance in
any one year. Thus, we understand that the list of affected
properties which we created from this map may change from
time to time.
Our commitment, at this time, to this preservation effort is
to require that, as a pre-condition to development, any
developers or property owners contact the U.S. Fish and
Wildlife Service and/or, during nesting season, your office
to ascertain further steps before site development, if by
virtue of the data shown on the map, they believe that their
property is within scrub habitat or a nesting family's
foraging area.
We are encouraged by your assistance in this regard and
shall continue to work with you as we plan the future steps
of preservation of scrub within the City of Sebastian as
directed by City Council. Thank you for your time and
attention to this all important issue.
Florida Game & Freshwater Fish Commission DATE
I City of Sebastian
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POST OFFICE BOX 780127 u SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5.330 D FAX (407) 589-5570
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PUBLIC NOTICE
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CITY OF SEBASTIAN
INDIAN RIVER COUNTY
FLORIDA
The Director of Community Development of the City of Sebastian,
Indian River County, Florida, will conduct a public meeting on
Wednesday, August 12, 1992, at 1:00 p.m. in the City Council
Chambers, City Hall, 1225 Main Street, Sebastian, Florida, to
provide information regarding properties located w/thin the the
scrub jay area and procedures to obtain building authorization.
Two or more elected or appointed officials ma~ be in attendance.
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Kathryn M. O'Halloran, CMC/AAE
City Clerk
City of Sebastian, Florida
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ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE BY WITH
RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING (OR HEARING)
WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO ENSURE THAT
A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD
INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO
BE HEARD. (286.0105 F.S.)
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SCRUB JAY PUBLIC INFORMATION WORKSHOP
ADGUST 12, 1992
There are approximately 2,300 lots which are affected by the
Scrub Jay habitat.
Brian Toland from the State Florida Game and Freshwater Fish
Commission, has indicated from his extensive surveys specific
areas of concern.
There are two different types of scrub jay areas. Category 1
indicates it has been surveyed as a known scrub jay area.
Category 2 indicates it has not been surveyed. Federal and
State Agencies are critically concerned with these areas, but
have not confirmed if there is habitat their.
Fish and wildlife have indicated that you are going to have
to do a survey, which involves a methodology that Fish and
Wildlife will accept. A brief idea of that methodology would
be:
1.)
obtain a tape that contains the attraction to the scrub
jay and put it in a playback tape machine.
2.) Conditions must be permitting according to the
methodology printout (as provided).
Bruce Cooper stated that this surveying is not conducive for
a single family lot of 80' x 125', because the list talks
about disection of lands further apart.
Scrub jays which have been banded by Brian Toland are coming
from an area that has been surveyed. The Scrub Jays that
have been banded are color coded. If your property has a
Scrub Jay that is banded you need to contact the appropriate
agency and advise them of what color band.
If you find a Scrub Jay that hasn't been banded the entire
area needs to be surveyed and the agencies will also review
the property.
The Scrub Jay has a nesting season which is March 1 through
July 31. During the nesting season you need to obtain
approval from the federal and state agencies. The State of
Florida's concern is active nesting however, after the
nesting season they have no qualms. Subsequent to the
nesting season only federal approval is necessary. Federal
agencies stated that if the lot is just grass, or if it has
no wax myrtles or scrub oaks then you will not have a
problem. Wax myrtles and scrub oaks are the two type trees
they are looking for.
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There have been several lots predominantly made up of grass
which have the approval of the Federal agency. The lots were
in surveyed areas and they had taken pictures of the lot and
sent that to the federal agency for review.
The approval from the federal agency consisted of a letter
stating they had the sign off but, beware that you are still
.subject to scrub jay area but, you can proceed.
A surveyed lot is easier to proceed with then a non-surveyed
lot.
Federal agencies have been giving the sign off for these lots
within two weeks. Should they start to get inundated with
properties turnover time will slow.
Bruce Cooper stated that we are trying to get these approvals
locally but, that has not yet been accomplished.
Federal agencies have been pushing the City to get into a
habitat conservation plan (HCP). Habitat conservation plan
is comprised of a fund in which money goes into to buy other
properties. Federal agencies are looking into putting
together an act in which an owner of a single family lot
located in a scrub jay area owner buys a lot and pays a
nominal fee and the agency will sign off on that and use that
money towards buying other land. This is only in review.
With regards to realtors listing the lots in the scrub jay
areas, Bruce Cooper advised that they check with their legal
counsel. Also that they might want to do a disclaimer.
The City of Sebastian is not in the position of stopping
building but, stating that we will not issue any permits
until we have sign-offs from the necessary agencies.
The City of Sebastian has to go through these procedures
because it is a Federal Act and a State Law.
Bruce Cooper stated that he would push for the property
owners rights because these are platted lots. Also, that any
new subdivision coming in, we would do everything we can to
preserve certain areas and still give them the chance to
build and not be in a "take" position.
Bruce Cooper asked if anyone had any questions.
A question was asked in relation to whose responsibility is
it to send the photographs of a lot to the U.S. Fish and
Wildlife for approval. Bruce Cooper responded by saying
whoever requires the approval (homeowner, contractor,
realtor, etc.). It will not be the City of Sebastian but,
Page 3
will be glad to do whatever we can to streamline it.
An inquiry was made as to whether the property owner would
have any repercussion if the lot could not be sold because of
a scrub jay being there. Bruce Cooper responded by saying
that the owner has a civil right to file an action suit
against the Federal Government.
Bruce Cooper stated that the scrub jay activity is
predominant in this area and probably because of local
concerns, the U.S. Fish and Wildlife have put pressure on the
city.
The Federal Government has put the City of Sebastian in the
position of controlling these circumstances.
It does now take a little more time to obtain a permit but,
it has not been restricted.
The City Council has advised the City Attorney to prepare an
ordinance to do what we are currently doing, which is
advising property owners who are in scrub jay areas do obtain
required approvals from the agencies.
The City of sebastian has been put on "notice", once we
received the maps from the State that these are known scrub
jay areas. We would be held liable if we arbitrarily issue
clearing permits in the scrub jay areas, then U.S. Fish and
Wildlife would come after the City.
The City of Sebastians alternative is to do the habitat
conservation plan (HCP), according to U.S. Fish and Wildlife.
The habitat conservation plan involves money and the property
owners paying into a fund.
A question was asked to Bruce Cooper as to what. he would do
if he were interested in purchasing a lot in a designated
scrub jay area. He replied that he would either find another
lot or if he really like the particular lot he would find out
what needed to be done.
Bruce Cooper suggested that the realtors pursue the issuance
of U.S. Fish and Wildlifes approval ahead of time for any
scrub jay lots that are for sale.
A question was asked that if you had the sign-off from the
U.S. Fish and Wildlife prior to the nesting season and you
didn't clear the lot until March, would you then need the
States approval. Bruce Coopers response was conclusive.
Page Four
An inquiry was made as to whether there is a time limit on
the sign-off letter. Bruce Cooper stated it is not known at
this time.
A question was asked as the whether there is a fee for'this
sign-off services from the Federal and State Agencies. There
is no fee.
Bruce Cooper read from a few "sign-off" letters that the City
of Sebastian had received from the U.S. Fish and Wildlife in
regards to a scrub jay lot.
One letter stated that since the lot was vegetated of
entirely grass no further action is required from U.S. Fish
and Wildlife.
A portion of another letter stated that if work had not been
completed prior to nesting season (March 1 through June 30),
it will be necessary to survey the lot for active scrub jay
nests prior to any further landclearing.
What the City of Sebastian has done is reproduced the scrub
jay map to show the development in those affected areas.
What the City is hoping to do is show the U.S. Fish and
Wildlife Services that these areas are highly developed and
that it is not conducive for them.
The key is to let them know what type of vegetation you have
on your property because they will be spot checking.
Bruce Cooper stated in closing that the City of Sebastian is
trying to streamline this process to accommodate the
Government, the City, and the Homeowner.
BC:sb
Scrubjay.doc
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City of Sebastian
1225 Main Street o SEBASTIAN, FLORIDA
TELEPHONE (407) 589-5330 [3 FAX (407) 589-5570
32958
October 1, 1993
Roland DeBlois
Indian River County
1840 2$th Street
Vero Beach, FL 32960-3394
Reference:
Environmental Land Acquisition Project Application
Dear Roland:
Pursuant to our discussion yesterday regarding the City's
application for the above referenced project, I am attaching
additional information regarding the areas of concerns as
established by Brian Toland, Game & Fresh Water Commission. Please
keep in mind that these areas are not delineated specifically but,
are in general and further analysis would be needed.
I will be asking the City Council to hold a special meeting
regarding the determination of the City to pursue a habitat
conservation plan for the scrub jay. I will advise you of the
meeting date and would hope to see you at the meeting.
If you need any further information regarding this matter, please
do not hesitate to give me a call at 589-5537.
Sincerely,
,
i .oper
Director of Community Development
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BC/gk
deblois.wp
Attachment
cc:
Mayor & City Council
City Manager
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ATTACHMENT TO ENVIRONMENTAL LAND ACQUISITION PROJECT APPLICATION
AREAS OF CONCERN
Approximately 60 acres along Gibson Street which is currently
zoned Industrial. (See Attached Vicinity Map)
Approximately 45 acres in the St. Sebastian Planned Unit
Development. Tax Parcel # 00-30-38-00001-0300-00008.0 (See
Attached Vicinity Map)
Approximately 25 acres which comprises the Golf Course and a
little bit of Airport property and the P.U.D. property to the
south.
Approximately 50
School.
Approximately 20
located on 512.
acres around Pelican Island Elementary
acres around Sebastian Elementary School
'
, /
Sebastian, Florida
..............
INDIAN RIVER COUNTY
ENVIRONMENTAL Z~ND ACOUISITiON I~ROJECT APPLICATION
GENERAL INFORMATION
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A. Property name: .. City of Sebastian
Tax parcel number(s):..
c. Does ~ne property have any liens? ....
I D.
Number of parcels= ___-- Total size=
Dlrect£ons to the property:
I F.. Attach l'egal description,
property, ex,sting
easements, section lines
encumbrances.
L~et owner(e) of record~
Name Address
etreets~
survey ehow~ng the boundaries of the
bu~Idings, water courses,
any deed restrictions or
Telephone
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If Applicant does not own the property, provide the followAng~
A_o~:L~cant' s Hame
Telephone
City of Sebastian _ 1225 .Main S%.~eet
589-5537
Describe the current zoning and future land use des~gnation of
the property and surrounding area.
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PLEASE PROVIDE AS MANY OF THE FOLLOWING AS POSBIBLEt
Vlclnlt¥ map at a scale of 1" = 2000' wl:h sufftc£ent
tnformat~on..(roads,.water bodies, land marks, etc.) to locate
the property in the f£eld.
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:ON q3i
13Bc]n8 '3'~'I :~! ~q:80 FIHI £6,-0£-c~35 .......
A topographic quadrangle map (U.$.G.s.) with boundaries
property sketched in.
· Aerial' photograph with parcel boundaries sketched in.
Tax Appraisers assessment, map,
Photographs or a video
characteristics.
Ecological survey reports.
~xpert endorsements.
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highlighting property i
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II. VALUATION
A. Fair market value. Attach documentation such as an appraisal.
Attach documentation of current assessed value by county tax
assessor. A letter signed by Tax Assessor is required.
C. At~ach documentation of owner(s) willingness to sell, if
available. '
(All attachments will become the proper~¥ of %he County Board of
commiss~oners and will no~ be returned.)
~lve approxima~e acreage of the following natural communities
existing on the parcel~
T~,,~RZBTRZAL
Hardwood hammock
Es~uarino wetlands
Coas=al/~rop~cal hammock ----
Freshwater wetlands
Coastal strand
Stream/river
Xeric scrub
Pine flatwoods
Dry prairie
Cabbage palm hammock
Other (explain)
~6£6~-8~,-~ :ON -~11
1190n8 '3 '~' ! :(ii 9s :8~ ~HI 76 ,-0£-c~3S
Please attach inventories, letters or reports for the followings~
PLANTS AND ANIMALS. Describe most common and especially
unique spec/es. Oive scientific names wherever possible.
Delineate extent and location of unique communities, on e map
of.the property.
~RCHAEOLOGIC .AND HISTORICAL SITES. 'Describe known
archaeological or historically valuable remains. Show
locations on a map of the property.
OTHER FEATURES. Descr£be aqua~Ic0 geologic, scenic end o~her
physical features of signAf£cance. Include such things ss
terrain, soil, etc.
I property.
Name and address of ecologist(s) with knowledge of
Brian Toland, Game & Fresh Water Commission
'
l10-43rd Avenue, Veto Beach gap ...... 32960
1¥. ~NFLUENCES ON THE PROPER'I~.
I A. .PAST. Descr£be occurrences of significant past disturbances,
'~oth natural and human. Include appropriate ~atea an~ size
areas affected b~ storm damage, fires, floods, Infestation,
i farming grazing, mining, loot£ng,
d/sturbances
archaeological and h~storical sites. Describe and structures;
roads, trails, fences and other evidence of man.
I B. PRE~ENT. L£$~ approximate acreage affected by the followlngt
Australian Pine
Melaleuca______
I
i Hunting
Dumping/litter
I Over-gra~/ng
other (explain)
Indicate presence of the followlngt
Pollu~ion
Camping
Siltation
ErOSlOR .... ~ ,,.
Off-road vehicles
Looting/disturbances of archaeological sates _
Other Development of residential, commercial & industrial
T6£6-SL&-£O~ :ON' qB1
IBSKIF~ '3'~ I :(II 9~:80 RHI £6.-0£-dB '
I
Scenic -- Sc£ent£fic Documentation Buffer Zona .. ~ .
Geological Forma~lon, ~ Ra~e Aqua~fc H&bl~at ..... ~
Rare Terrestrial Hab~tn~ ~ . Endemic Animal Species _ ..
ReCrea~$on Opportunities ~ Endemic Plant Spe~$es' ' .. ~ ~'
Archaeological or Historical Site _ Open Space ......... i
Natural Floodplain, Marsh or Estuary Remnant Communit¥~
To Enhance or Protect Water Quaiit¥_~//_/_LOcal Rare Animal I
Adjacent to o~he= Protected Land . .... . ......
__ To establish a Habitat Conservation Plan for the ,,Scrub Ja.Y. I
· Oth-r. ' ............... ' ....... . i
¥~. RECO~NXTZON'"
~;~;~;-ae a National Natural Landmark, National Register o=
H~storic Places, Florida Natural Features Program, Scenic R~ver, i
Florida State Division of Archives or has been given other
recognition or designs=ion.
Please complete ~h~s application and subm~=
~.R.C. Plann£ng
.A~un.~ Environmental ~lanning 1840 25th
Veto Beach, Florida 32960
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u\rl\laac.app
06\15\93
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I6£6-8~2.-£0~ :ON q~l
1~(i~ 'D'~'l :(II £~:80 []HI
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United States Department of the Interio~~h
.\
VERO BEACH, FLOR~A 32961-26?6. l~ ~ ~ '..'.. ~
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Mr. Tom McMullen
The Heritage Company
P.O. Box 1441
Cape Canaveral, FL 32920
FWS Log No: 4-1-93-410
County: Indian River
Dear Mr. MeMullen:
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Reference is made to your telephone request of September g, 1993, and the Fish and
Wildlife Service (Service) response to your request dated September 10, 1993. You
requested the Service to inspect lots located in Unit 17 of Sebastian Highlands, Indian
River County, Florida. This letter supplements our previous comments.
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Since our initial letter of September 10, 1993,. Service biologists have inspected the
property on September 28 and October 4, 1993. Additionally, we have coordinated with
the Florida Game and Freshwater Fish Commission. Based on the findings of this more
through review, new biological information regarding Florida scrub jay use of the
property has surfaced, as described as follows:
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Block 584: Lots 2 and 3 contain sand pine/scrub' habitat. Lots 4 through 8 are
scrub with sand pine interspersed. Lots 10 through 14 are overgrown scrub. It
appears that most of Block 584 provides habitat suitable for scrub jays.
Block 585: All the lots in this Block (1 to 11) appear to provide habitat suitable for
scrub jays. Sand pines are present and, while some of the area is slightly
overgrown, other areas are more open with lower vegetation and thus more suitable
for jays.
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Block 586: Lots 1 through 8 consist of scrub habitat with sand pine and are suitable
for scrub jays. LOts 16 through 26 are overgrown scrub with sand pine interspersed.
A scrub jay survey is necessary before the full extent to which this Block is utilized
by scrub jays can be fully determined.'
Block 588: As previously stated, lots 5 through 15 contain scrub which appears
suitable for scrub jays.
Based on this new information, the ServiCe recommends thai no lot clearini~ be conducted,
on your urouertv in Unit 17 at this time. We request that an on-site meeting be arranged
to review your plans and discuss the implications of those plans on the continued viability
of the Sebastian scrub jay population.
Clearing of lots in unit 17 of Sebastian Highlands at this time may represent a violation
of the Endangered Species Act. By copy of this letter, we are notifying our Division of
Law Enforcement. Any questions you may have should be direct~ to Jane Tutton,
Endanger~ Species Coordinator, at (407) 562-3909.
Sincerely,
Field Supervisor
FWS, Jacksonville, FL (Atto: Dawn Zattau)
FWS, , FL (Attn: Charles Bazemore)
FGFWFC, Vero Beach, FL (Atto: Brian Toland)
Mr. Bruce Cooper
Director of Community Development
City of Sebastian
P.O. Box 780127
Sebastian, FL 32978-0127
z_~
QZ
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SCHUHANN DRIVE
ARCHER ~r .... ~,,,,.% ,x '7l
i City of Sebastian
1225 Mai,~ Street u SEBASTIAN, FLORIDA. 32958
i TELEPHONE (407) 589-5330 o FAX (407) 589-5570
MEMORANDUM
I DATE:
October 5, 1993
iTO:
THROUGH:
I FROM:
I REFERENCE:
Mayor Powell and City Council
Kay O'Halloran
Acting City Manager
Bruce Cooper
Director of Community Development
Issues Regarding Scrub Jay
As everyone is aware, the Fish and Wildlife has been threatening to
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stop building construction within the City of Sebastian due to the
City not pursuing a habitat conservation plan.
I have met on several occasions with Brevard County staff and Fish
and Wildlife to obtain further information concerning a HCP in
order to inform the City Council regarding the full impact of such
a plan.
I am enclosing my notes regarding the two meetings that I've had
with Brevard County and Fish and wildlife to give you an idea of
what the City is up against regarding a HCP. Please'keep in mind
that these are just notes but, it should give you some background
regarding the scrub jay issue.
Since our last meeting with Fish and wildlife in August, I have
talked with Dawn Zattau and have informed her of the pending
purchase of the St. Sebastian P.U.D. property, i have asked for
her consideration that if the City was to preserve the approximate
50 acres in the St. Sebastian P.U.D., along with the City Golf
Course to formulate the HCP, will Fish and wildlife be willing to
relinquish the other properties that are outlined in my notes of
the August 5th meeting specifically, the area around Pelican Island
Page
Elementary. Neither Dawn or Brian Toland (Game & Fresh Water)
would commit to any such proposal until further investigation of
the HCP. I believe that the Fish and Wildlife Department will be
adamant in requiring all five areas to be included in the HCP.
At this time, I will be recommending that a special meeting be held
with City Council and all par~ies concerned to discuss this HCP in
order for the City Council to make a decision.
BC/gk
issuessj.wp
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I Meeting today on July 8, 1993, 3:00 p.m. with Lisa Bart, Director
for Natural Resources Management Division for Brevard County; Tammy
i Townsend, Environmental Specialist Biologist, Natural Resources
Management Division; Michael O'Connel, Director for Habitat
Conservation Planning for the Nature Conservancy.
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To discuss various issues which are as.follows:
Gave brief description of the City of Sebastian's plight
regarding scrub jay and Fish and Wildlife. Tried to get
across the idea of the 13,000 platted lots that are already
developed with roads and drainage and various housing, should
not be entered into the picture but, Lisa has informed me that
the Fish and Wildlife people will not back down from their
position which they have found in similar situations in other
areas of their county.
2. Discuss the issue of what would happen if the City was to do
nothing and allow the individual property owner to pursue an
I "Incidental Take Permit" through Fish and Wildlife on an
individual lot basis. It appears from discussions from 'Lisa
that Fish and Wildlife would look at that but, at a minimum a
i lot owner could look at buying on a 2 to I ratio same amount
of land that he would be asking for the take. Example: If
you own one lot of 10,000 square feet, you would have to buy
another lot of 20,000 square feet for mitigation factors.
i There could also be consulting fees.
3. Discussed the idea on how can Fish and Wildlife issue letters
of approval for individual lots for a couple of years and then
all of a sudden decide that no longer can building be
continued because of a "take position". Lisa had indicated
that Fish and wildlife is permissible to allow small impacts
such as certain amount of individual lots to be built on but,
after a certain time, they will determine that a certain area
will become a take by allowing building to continue within
that specific area.
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Discussed the idea of using the Golf Course and larger tracts
of land such as St. Sebastian P.U.D.. It could be determined
that certain amount of lands that are identified on Brian
Toland's map, although are separated, can still be utilized if
they are within approximate of a 1/2 mile of each other. In
other words, 20 acres in one area and another 30 acres in
another as long as it is within a 1/2 mile of the area could
still be considered a habitat area due to the scrub jay will
still utilize small patches of habitat, although broken up by
development in between.
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Page 2
Another issue was in regard to City Council's position of
taking lands off the tax roll to preserve will cost the City
in the long run. Lisa and them have indicated that they have
done certain studies to actually indicate that it is not
necessarily the case based on the theory that the land
surrounding the preserved area becomes more valuable and it
costs the City to service this land which would be eliminated
if, there is no development. I'm not convinced on this idea.
ISSUES:
The City has an option of doing the following:
Nothing at all and wait to see if Fish and Wildlife comes down
with a determination of no more building i~ certain areas.
2. Pursue a HCP either through the following concepts:
An individual HCP for just the City of Sebastian.
A HCP with Indian River County and the City of Sebastian.
HCP with Brevard County, Indian River County and City of
Sebastian.
The City Council I think needs to be aware that pursuing a HCP
no matter what funding sources will be available, it will
still cost the City some money to pursue this effort.
The upcoming meeting that I am going to coordinate with Fish and
wildlife, Brevard County, the Nature Conservatory or Conservancy,
and IndianRiver County also including Brian Toland is to determine
whether or not how the City should try to pursue a HCP if City
Council elects to do so. Although the area on the maps indicated
by Brian Toland shows scrub habitat, certain areas may not be as
conducive for the habitat which, could be alleviated from this map
and not be considered part of the HCP.
brucemtg.wp
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i MEETING OF AUGUST 5, 1993 AT 10:00 A.M. AT THE BREVARD
ADMINISTRATIVE BUILDING WITH LISA BARR, TAMMX TOWNSEND, BRIAN
TOLAND, AND DAWN ZATTAU
I Discussed the concept of a HCP for the City of Sebastian and the
following came out of that meeting:
I 1. Explained to Dawn and Brian that I was here to review what the
City of Sebastian would have to do to obtain a HCP and its
i parameters in order to report back to City Council to give the
full impact on the City of Sebastian. Impact meaning what
will be the costs involved for the City of Sebastian such as
consultants, lost of revenue from losing a tax base byplacing
I parcels of land under conservation.
2. Dawn Zattau had indicated that they are very close to stop
I issuing letters of approval to the City of Sebastian.
3. Brian indicates that there are five (5) key areas within the
i City of Sebastian that should be preserved and placed in a
conservation which means no development. The following are
the areas identified by Brian:
I a. Approximately 60 acres along Gibson Street which is zoned
Industrial. This specific tract of land was brought by
Indian River County Acquisition Committee to purchase
under the Preservation 2000 and the City Council placed
Indian River County on notice that they did not want this
property to be purchased and placed off of the tax rolls.
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b. St. Sebastian P.U.D. approximately 45 acres.
Cs
25 acres which comprises the golf course and a little bit
of airport property and the P.U.D. which was known in the
past as Collier Place.
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d. 50 acres around Pelican Island Elementary School.
Approximately 20 acres on the Sebastian Elementary School
site.
Brian had indicated that these are approximates as far as the
acreage but he does have sufficient data that could be utilized to
delineate specifically the area in question.
Page 2
4. Reviewing the above tracts of land, the only real concern
initially would be the land surrounding Pelican island
Elementary School. The other tracts of land,
except the Sebastian Elementary School, are not subdivided and
hopefully we can require conservation easements on the two
P.U.D.s without rendering the proper~y unbuildable and being
in a position of a "take".
Lisa Barr and Brian Toland have both stated that the data that
Brian has, can be placed and delineated on a map in order to be
specific on how much land and what lands are going to be involved
if the City pursues a HCP. This would not be at any cost to the
City of Sebastian through an independent scientific research
company that Brian belongs to.
It appears based on the above facts and conversations with all
involved, below would be what the City of Sebastian could
anticipate as far as expenditures of monies:
A consultant would actually have to formulate the habitat
conservation plan based on the data from Brain Toland. This
plan will identify the specific areas and the management plan
must be accompanying with a HCP. This management plan would
be where the individual tracts of land will have to have a
control burn or mechanically move certain vegetation that is
not conducive to the scrub habitat. This might only happen
every 5 to 10 years but, the HCP will not be approved unless
someone such as the City or County takes over the management
plan and shows how it can be funded. There has been an
approximate cost of anywhere from $400.00 to $1,000.00 per
acre for maintenance of scrub habitat. Brian Toland has also
advised that the Division of Forestry might be able to do this
maintenance, free of charge, and of course a contract between
the City of Sebastian and the Division of Forestry would have
to be accomplished in order for Fish and Wild Life to accept.
The other option of course is to have the County take over the
management of these tracts of land within their overall of HCP
that they are trying to pursue.
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No one could give me an approximate cost of what it would take
to have a person formulate this plan but, Lisa Barr had
indicated it could run up to $50,000.00.
The actual purchase of the lands around Pelican Elementary
School could be pursued under the Indian River County bond
referendum of $26,000,000.00. Without the map delineating the
specific area, staff has no knowledge of the total amount of
lots that would be purchased. Brian has indicated 50 acres
which could include up to 150 lots. At $10,000.00 per lot,
this would costs approximately 1.5 million.
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The City would also try and pursue monies for the actual
development of the plan through Representative Bacunus,:=~
office.
At this point, the City Council should have a meeting which,
Lisa Bart, Brian Toland and Dawn Zattau have agreed to attend
in order to help advise the City Council of this process.
Lisa Bart will send additional information prior to the
meeting being scheduled.
November 2, 1993
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Mr. Bruce Cooper
Director of Community Development
City of Sebastian
1225 Main S~reet
Sebastian, FL 32958
Scrub Jay Meeting / November 8, 1993
Our File No. 882489.9615
Dear Bruce:
For purposes of our meeting on November 8, 1993,
I are ~ree possible, positions the City can ~ake,
negative ram~f2oatzons.
I believe ~here
all wi~h varying
i First, the City can continue their c~rrent policy whic~ is to
require owners of land, within the identified scrub jay habitat, to
obtain letters of authorization from the Federal Fish and Wildlife
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Division in Jacksonville as a condition precedent ko issuing any
development permits. In this manner, the City will not be exposed
to a fine by Fish and Wildlife for being accessories to a "take" of
scrub jay habitat.
As we have discusmed, however, I believe the down side to this
position is that Fish and Wildlife have already threatened to stop
issuing letters Of authorization tO these property owners,
therefore, these property owners would, in essence, not be able to
develop their property within the City of Sebastian.
I I believe, however, this option exposes the City to the least
liability. Although, I understand that it may result in a
tremendous amount of displeasure from citizens who are prohibited
i by Fish and Wildlife from developing their lands.
The second option is for the City to begin the process of
developing a Habitat Conservation Plan (H.C.P.). Although we both
I know that ~his is what Fish and Wildlife ultimately ~ants, the
economic impact of developing an H.C.P. may be prohibitlve to the
city.
! 1~e2~3 e8 '- 52
l~t. Bruce Cooper
Director of Community Development
November R, 1993
Page -2-
The third option is to issue development permits to land owners,
irrespective of ~he federal regulations with regard ~o liability
for engaging in a "take" of scrub jay habitat. By ~he time we
attend the November 8th meeting, I will have completed my research
on the liability ~o the City if we engage in ~his aggressive
stance. At ~his time, however, I can tell you that such a position
will likely result in Fish and Wildlife attempting to impose a fine
against ~he City of Sebastian. Therefore, we will be engaged in
litigation wi~h Fish and wildlife over the enforceability of the
federal legislation.
I will more~horoughly discusses legal aspects or,his issue wish
Council at our workshop on November 8th. In the aeantiae, I wil1
be contacting Fish and Wildlife's enforcement division to see ~f I
can obtain some information with regard to their posture about
.enforcing ~his legislation.
If you have any questions, or wish for me to address any other
issues with ~he Council, please let me know prior to our meeting.
Sincerely,
FRESE, NASH & TORPY, P.A.
Richard E. Torpy
Rl~T / lb
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INTERIM GUIDANCE FOR HABITAT CONSERVATION PLANNING
MARCH 1992
INTRODUCTION
In the ]982 amendments to the Endangered Species Act of ]973 (Act), Congress
responded to a conflict in the Act by amending Section 10, and established
an incidental take permit provision that includes the development of
habitat conservation plans. Before the 1992 amendments, private parties
undertaking otherwise lawful actions resulting in the incidental taking of
listed species faced the prohibitions of Section 9 of the Act which prohibit
the 'taking" of any listed species of wildlife. [Taking is defined, in
part, to include killing, harm or harassment of a federally listed species.
Under certain circumstances, the destruction of habitat may constitute
harm (50 CFR § 17.3(c) - see Definitions). At that time, the only
activities under the Act that could be exempted from the take prohibitions
were scientific research, captive breeding and similar conservation actions.
Thus, private individuals with otherwise lawful proposed developments faced
a seemingly unresolvable statutory conflict when such development likely
would result in the incidental take of a listed species.
The provisions of the Act authorize the U.S. Fish and Wildlife Service
(Service), under some circumstances, to permit the taking of federally
listed wildlife if such taking is "incidental to, and not the purpose of
carrying out otherwise lawful activities" (16 U.S.C. § 1539}. As a result,
the Director"of the Service, acting for the Secretary of the Interior, has
some discretion and flexibility in regulating the incidental taking of
listed species. Not only does the Act provide the regulatory mechanism
for these potentially affected parties to lawfully take listed species,
Congress also intended that this process be used to reduce conflicts between
listed species and private development and to provide a framework that
would encourage "creative partnerships" between the private sector and
local, State, and Federal agencies in the interest of endangered species
and habitat conservation. When approved by the Service, this regulatory
procedure results in the issuance of a Section lO(a)(]){B) permit
authorizing incidental take provided such take is mitigated by appropriate
conservation measures for habitat maintenance, enhancement and protection,
coincident with development. These measures are detailed in a conservation
plan or habitat conservation plan {so-called "HCP"), a mandatory component
of any Section lO(a)(1)(B) permit. HCP's can also include conservation
measures directed at "candidate species" or other species of concern that
are not listed at the time a permit application is submitted. This will
facilitate issuance of an incidental take permit should the species become
listed in the future. As Congress intended, the conservation planning
process has been characterized, to date, by a mutual understanding of the
objectives of wildlife conservation and management and the economic and
social values derived from local development.
Congress modeled the ]982 amendments to the Act after the conservation
plan developed by'private landowners and local governments to protect the
habitat of listed spectes and other spectes of concern on San Bruno
Hountain, San Hateo County, California. As discussed in the legislative
history of the ]gB2 amendments (H.R. Rep. No. 97-835, gTth Congress, Second
Session), Congress expects that the adequacy of future conservation plans
would be Umeasured against' the San Bruno Hountaln experience. That
guidance notwithstanding, Congress also recognized that the San Brunn
HountaJn Area Habitat Conservation Plan would not be universally applicable.
These guidelines reflect the San Bruno gountain experience and guidance
provided by Congressional conferees In the development of the ]982
amendments, and later approved efforts In California [e.g., Coachella
Valley, Bakersfield, western Riverside County, Hartna (Honterey County),
Delano State Prison (Kern County)] Florida (e.g., Key Largo) and
elsewhere. ' ,
Because this process may apply to a wide variety of projects and activities,
the Service declined to promulgate 'exhaustive, 'cookbook' regulations
within the agency's final regulations published in lgB5
50:3gSBl-3g691] detailing every possible element that could be required in
a conservation plan.' Features appropriate for one plan may not be feasible
or acceptable in another area or for a different set of development and
species/habitat circumstances. Rather, the existing law and regulations
provide for, and encourage, flexibility and ingenuity in the development.
of a conservation plan that will adequately mitigate'the impacts of
incidental taking of listed species.
In keeping with the regulations, the following guidance will discuss in
detail the necessary components of the conservation plan process. Though
it does not include any "cookbook" instructions, it reiterates, and expands
upon the application procedures contained within 50 CFR Parts 13 and 17.
This guideance should help clarify the objectives of conservation planning
and the roles and responsibilities of the Federal and non-Federal
participants. Nothing herein is intended to supersede or alter any aspect
of the Federal regulations published in
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