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HomeMy WebLinkAboutVII (B) AT&T Cellular Tower, Mitigation Plan, Project SS-2001-005 Agenda 12-04-2001 Item VII B FOLEY & LARDNER MEMORANDUM CLIENT-MATTER NUMBER 020377-0107 TO: The Honorable Mayor and City Commissioners of the City of Ocoee FROM: Paul E. Rosenthal, Esq., City Attorney DATE: November 26, 2001 RE: AT&T Wireless Services of Florida, Inc. ISSUE: Should the City Commission issue a permit to AT&T Wireless Services of Florida, Inc. ("AT&T Wireless") to fill wetlands in order to construct a monopole cellular antenna? DISCUSSION: The City has previously issued to AT&T Wireless a special exception to construct a monopole cellular antenna on a site located at 835 Marshall Farms Road. AT&T Wireless has submitted to the City staff an application for approval of a small scale site plan in connection therewith. During the course of preparation of the site plan, AT&T Wireless discovered that approximately 0.08 acres of wetlands were located on the antenna site and that it was necessary to fill these wetlands. Section 7-4B(1) of the Ocoee Land Development Code provides that "no excavation or filling shall be undertaken within a wetland unless the City Commission finds, on the basis of reasonable evidence, that there are no practical alternatives to filling". In the absence of such finding, AT&T Wireless could not construct the monopole. As a result, AT&T Wireless has applied to the City and St. Johns River Water Management District("SJRWMD") for permission to fill the wetlands. Attached hereto is a copy of the letter application dated October 29, 2001 by Lee Chotas on behalf of AT&T Wireless (the "Application"). City staff has reviewed the Application and concurs that there is no practical alternative to the filling. Section 7-4(B)(2) of the Ocoee Land Development Code requires new replacement wetlands at a minimum of 2 times the area of the destroyed wetlands, or where replacement wetlands are impractical, alternative mitigation requirements. City staff believ; that the payment of$5,000 to the City for use by the City in connection with the acquisition ii etlands in the Crown Point area is an acceptable mitigation alternative which accom. es the objectives of the Code and further an important City of Ocoee environmental project" 1/4\ 006 23936].2 1 Foley & Lardner SJRWMD is also requiring mitigation by AT&T Wireless for the destroyed wetlands. It is anticipated that SJRWMD will allow the mitigation payment to be made to the City on the condition that it be used to acquire wetlands in the Crown Point area which have previously been approved for acquisition in the agreement between SJRWMD and the City. AT&T Wireless has indicated a willingness to pay sums due to SJRWMD to the City of Ocoee, if permitted by SJRWMD, provided that the total of such sums and sums due pursuant to the Ocoee Land Development Code do not exceed $10,000 in the aggregate period. There are no outstanding site plan issues and approval of the Application is the only remaining requirement in order for AT&T Wireless to proceed. RECOMMENDATION: It respectfully is recommended that the City Commission APPROVE the Application of AT&T Wireless Services of Florida, Inc. to fill approximately 0.08 acres of wetlands at 835 Marshall Farms Road in order to construct a monopole cellular antenna, subject to the payment to the City of the sum of $5,000 as mitigation to be utilized to acquire wetlands in the Crown Point area, provided, however, that if the total cash mitigation required by the City and St. Johns River Water Management District ("SJRWMD") equal or exceed $10,000, then the City will accept a total payment equal to the greater of$10,000 or the amount required by SJRWMD (or if SJRWMD does not impose a cash amount then the average cost of replacing the mitigated wetlands in a wetlands bank as agreed to by the City Manager). PER/jlh Attachments: (1) Application dated October 29, 2001 (2) Copy of Section 7-4(B) of Ocoee Land Development Code cc: Russell B. Wagner, AICP Lee Chotas, Esq. 2 006 239367 2 WRITERS DIRECT DIAL WNW.deanmeadcom WRITER'S E-MAIL ADDRESS ECHOTAS@DEANMEAD COM (GO]I 428-5192 October 29, 2001 - 4-- ; y VIA FACSIMILE -(407)656-6885 IJ & U.S. MAIL Jim Gleason — — City Manager City of Ocoee, Florida 150 N. Lakeshore Drive Ocoee, Florida 34761 RE: AT&T Wireless Monopole - OR-77 Parkridge 835 Marshall Farms Road, Ocoee, Florida 34761 File No.: 14835-30564 Dear Mr. Gleason: As you know, this firm represents AT&T Wireless Services of Florida, Inc. ("AT&T Wireless") in connection with the establishment of the above referenced cellular antennae site on a leased parcel 0.13 acres in size, which is designed to improve wireless telephone service within the City of Ocoee. Also as you know, AT&T Wireless has obtained from the City of Ocoee approval of a special exception regarding the referenced monopole. Subsequent to approval of that special exception, it was discovered that, contrary to the understanding of both AT&T Wireless and the City of Ocoee, wetlands (0.08 acre)within the jurisdiction of the St. Johns River Water Management District are located within the proposed site such that a permit to disturb or eliminate such wetlands is required from the St. Johns River Water Management District ("SJRWMD"). We previously met with you, your planning director, your legal counsel, and others to discuss how we might best deal with this situation. Subsequent to our meeting, AT&T Wireless attempted diligently to relocate the monopole site on the parent parcel to an area which did not contain wetlands. The landlord was not responsive to these attempts. There are no practical alternatives to the filling of these wetlands, if the cellular network of AT&T Wireless is to be implemented without a capacity or service deficiency in this area. Accordingly, AT&T Wireless retained an environmental engineering firm which has filed an application for the necessary permit from the St. Johns River Water Management District. Enclosed is a copy of that permit application which we arc advised may be administratively approved by St. Johns River Water Management staff in a few weeks. Jim Gleason City Manager October 29, 2001 Page 2 We would appreciate your confirmation that the Final Site Plan as submitted by AT&T Wireless to the City of Ocoee, last amended on August 28, 2001 to accommodate comments received from the City, is acceptable, and that construction may proceed under the previously approved Special Exception, notwithstanding the fact that wetlands were included within the proposed site. We request this assurance contingent upon our receipt of a final permit from the St. Johns River Water Management District to authorize wetlands removal. Pursuant to Article VII, § 7-4.8.1, of the Ocoee City Code, wetlands may be filled if there is no practical alternative, the area is minimized and either alternative mitigation areas are provided or other alternative mitigation requirements are satisfied. Please consider this letter as our application to disturb or eliminate+ 0.08 acres of wetlands pursuant to said Code provision. We respectfully request that in view of the mitigation requirements already imposed by the SJRWMD, that the City of Ocoee accept the sum of$5,000.00 as a contribution to other wetlands mitigation projects of the City of Ocoee, in lieu of the creation of new wetlands areas. Authorization for this request is found in the City Code at § 7-4.B.(2). In view of the stricture upon AT&T Wireless to have its cell site operational,this offer is contingent upon approval prior to December 1, 2001. Your earliest attention is greatly appreciated. Sincerely, Elias N. Chotas ENC/mls cc: Walter D. Tanner(via fax) Russ Wagner, Director of Planning/Zoning (via fax) William (Bill) Bailey (via fax) C:\windows\TEMP\30564.misc0l a.leason.wpd. ARTICLE VII (4) Where the City Commission determines that one or more restrictions would have the effect of depriving the property owner of the reasonable, beneficial use of his land, the Commission may consider alternative restrictions, provided that any variation from the standards herein constitute the minimum variation necessary to prevent confiscation of the property. shall periodically ew, fees essary to (5) The City cover the cost olf the administratonssion shall set, dof the permit issuancel procedures cunder tit this Article. § 7-4 STANDARDS FOR MANAGEMENT OF NATURAL RESOURCES A. Generally (1) The purpose of these standards is to protect and properly manage the use of certain important natural resources for the overall benefit of the public. Toward that end, these standards shall be considered the minimum standards necessary to provide for adequate protection and management of natural resources. Where the specific facts indicate the need for greater protection, and the type of action being considered is legislative,the City Commission shall consider the need for additional conditions and/or may require a higher standard. (2) Development proposed on or near resource management areas shall be designed so as to maximize the ability of the resource management area to function in an to undisturbed natural condition. The following general standards shall be app ledall resource management areas: (a) Uses and activities within resource management areas shall be limited to those uses and activities which by their nature must be located within these areas, or which are compatible with the need for resource • management and protection. Uses and activities on other lands which might create an adverse impact on resource management areas shall be designed so as to reduce or eliminate such impacts. The City Commission may require the rearrangement of uses or activities, including density, on a site plan or the rearrangement of lots within a subdivision in order to minimize the impact of such uses on resource management areas. (b) Use of Planned Unit Development design and permitting procedures is encouraged for development located within or near resource management areas. The City Commission may require use of this technique if it finds such use necessary to ensure adequate protection of these areas. (3) Where a site is affected by more than one resource (such as a wellfield located in a wetland), the appropriate standards shall apply collectively, with the more restrictive standard applying in the case of a conflict. Where meeting one standard would have the effect of violating another, the City Commission shall determine how the standards shall apply. B. Wetlands (1) No excavation or filling shall be undertaken within a wetland unless the City Commission finds, on the basis of reasonable evidence,that there are no practical alternatives to the filling. Examples of situations where such activities may be permitted include the need to provide access to property, to provide utilities, and to create a building site on an approved lot. Where any such disturbance of a wetland is permitted, it shall be the minimum disturbance necessary to meet the Adopted July 21, 1992 18181 ARTICLE VII needs of the use. No excavation or other disturbance shall be permitted in a floodway. Except where specifically permitted by the City Commission, no native wetland vegetation shall be disturbed. (2) Where disturbance is permitted, new wetland areas shall be created at a minimum rate of two (2) times the area of wetlands destroyed. New wetland areas shall be in the vicinity of the areas destroyed and, at maturity, shall be functionally related (in terms of elevation, hydrology, and vegetation) to the remaining wetlands In the area. Where the City Commission finds that it is impractical to create such replacement wetlands, it may make alternative mitigation requirements. (3) A buffer area shall be retained in Its natural state surrounding connected (i.e., FDER jurisdictional) wetlands. Such buffer shall be a minimum of seventy-five (75) feet in width except where the City Commission finds that it is impractical to maintain that width. Buffer areas shall not be disturbed except to provide for surface water management areas. (4) Modifications to wetlands shall ensure that predevelopment water flow (rate and quantity) is maintained to preserve wetland viability. (5) Wetlands management shall conform to standards Included in the Comprehensive Plan (specifically including Conservation Element Policies 2.3 and 4.2). C. Critical Habitats (1) Habitats for threatened or endangered species shall be protected to ensure the viability of the habitat to support the continued functioning of the species. This shall be done by preserving the habitat itself from change, including reduction In size, destruction of major features or vegetation within the habitat, changes in surface water flow patterns, and/or introduction of pollutants. In addition, land development and land uses in areas near the habitat shall be restricted as needed to prevent adverse impacts. Where development in or near a critical habitat will substantially reduce its viability, the City Commission may require mitigation. Mitigation may Include such actions as restoration of contiguous or disturbed areas (either on-site or off-site) to a condition which provides satisfactory habitat, or relocation of the species to appropriate non-contiguous areas dedicated for permanent use as habitat areas. Mitigation shall be subject to the approval by the Florida Game and Freshwater Fish Commission. The following specific standards shall be applied to protect habitat areas: (a) Where specific management and recovery strategies for key listed species have been developed by the Florida Game and Freshwater Fish Commission and/or the United States Fish and Wildlife Service,any activity within an environmentally sensitive area shall conform to the strategy. (b) Exotic nuisance vegetation within environmentally sensitive areas and within nearby areas which may affect environmentally sensitive areas shall be removed and replaced with native plant species. Native vegetation shall be preserved and/or provided along river banks. (c) Examples of upland native plant communities, both within and near the habitat area, shall be preserved. (d) Where new planting or landscaping areas are provided in or near habitats, xeriscape landscaping utilizing native plant species shall be used. Adopted July 21, 1992 18182