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Regulations

DIVISION 3. SOUTHERN BALD EAGLE*

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*Editor's note--Ord. No. 95-02, § 1, adopted Jan. 4, 1995, repealed former §§ 14-116, 14-120, and 14-121, added a new § 14-118, and renumbered and revised this division in its entirety. See the Code Comparative Table for a detailed analysis of inclusion.

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Sec. 14-111. Purpose of division.

In order to protect and preserve the southern bald eagle, it is necessary and appropriate to protect, enhance and preserve the nest of the eagle and its immediate environs. With reasonable land compensation incentives and proper habitat management, the southern bald eagle population in the county can be maintained. This division's intent is to protect the critical nesting habitat of the southern bald eagle and promote national, state and county pride and esteem by providing special compensation incentives to private property owners for loss of property committed to critical southern bald eagle nesting habitat. This division also intends to provide information and assistance to property owners to enable them to avoid violations of state and federal law. The landowner has the opportunity to choose one of several options. Those options include: forming an eagle management plan which should assist significantly in the state and federal permitting process; bypassing this division and dealing directly with the state and federal governments; or do nothing and take the chance of being in violation of state and federal law.

(Ord. No. 86-15, § 1, 6-11-86; Ord. No. 95-02, § 1, 1-4-95)

Sec. 14-112. Definitions.

The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Abandoned nest means a nest which has not been occupied by the southern bald eagle for the hatching and nurturing of eagle young for a period of four consecutive years or has been determined to be abandoned by the eagle technical advisory committee.

Buffer area means that area designated by the Board of County Commissioners in accordance with section 14-119 that must remain predominantly in its natural state to protect eagles, nest trees, or other critical eagle nesting habitat. Buffer areas may range in any distance up to 750 feet from a nest and be irregularly shaped areas.

Conservation easement means a right or interest in real property which is appropriate to retaining land or water areas predominantly in their natural, scenic, open or wooded condition; retaining such areas as suitable habitat for fish, plants or wildlife; or maintaining existing land uses and which prohibits or limits any or all of the activities described in F.S. § 704.06, as such provisions now exist or may from time to time be amended.

Critical eagle nesting habitat means habitat which, if lost, would result in the elimination of nesting eagles from the area in question. Critical eagle nesting habitat typically provides functions for the southern bald eagle during the nesting portion of that species' life cycle. This area includes eagle nest trees and their immediate environs and may include other areas or features such as perch trees, flyways, and secondary nests.

Developer means any person undertaking development.

Development means any improvement or change of the land induced by human activities.

FGFWFC means the Florida Game and Fresh Water Fish Commission or its successor.

Land means the earth, water and air above, below or on the surface.

Nest means a structural mass of sticks, twigs, leaves, mosses or other materials which is being occupied or has been occupied by the southern bald eagle for the hatching and nurturing of eagle young.

Nesting period means the period of time, from October 1 to May 15 for most southern bald eagles, during which courtship, nest building, egg laying, incubation, brooding and the fledgling of the young occur.

Parcel, for purposes of this division only, means one or more contiguous lots under unified control.

Property owner means any person having recorded legal title to real property.

Southern bald eagle (Haliaeetus leucocephalus), as per the federal and state threatened species list, means a mature eagle with white plumage on its head and tail feathers, or an immature eagle with dark plumage, which resides throughout the state around estuarine areas and along the lakes and river drainage basins within the interior of the state and county.

Unified control means the unrestricted right of any owner or agent to enforce whatever conditions are placed on the use and development of a parcel of land through the provisions of this division, by binding his heirs, assigns or other successors in title with covenants or restrictions on the development and subsequent use of property.

(Ord. No. 86-15, § 2, 6-11-86; Ord. No. 95-02, § 1, 1-4-95)

Cross reference(s)--Definitions and rules of construction generally, § 1-2.

Sec. 14-113. Violation of division; penalty.

(a) Any person convicted of violation of any of the provisions of this division may be punished as provided in section 1-5. Such person will also be responsible for costs and expenses involved in the case. Each day such violation continues will be considered a separate offense.

(b) Any violator of this division may be required to restore the critical eagle nesting habitat to its original undisturbed condition. If restoration is not undertaken within a reasonable time after notice, the county may take necessary corrective action, the cost of which will be placed as a lien upon the property.

(c) In addition, any violation of this division is a public nuisance and may be restrained by injunction by any interested party.

(Ord. No. 86-15, § 11, 6-11-86; Ord. No. 95-02, § 1, 1-4-95)

Sec. 14-114. Provisions of division supplemental.

This division does not replace the Federal Endangered Species Act, the Federal Migratory Bird Act, the Federal Bald Eagle Act or the Florida Endangered Species Act, but is intended to supplement those laws to ensure protection of critical eagle nesting habitat.

(Ord. No. 86-15, § 12, 6-11-86; Ord. No. 95-02, § 1, 1-4-95)

Sec. 14-115. Applicability of division.

This division will apply unless, prior to commencement of development which is subject to conditions imposed under this division, where applicable, the property owner elects, in writing, not to participate. This division applies only to all real property within 750 feet of a nest unless the nest has been determined to be abandoned. Abandonment will be determined by the eagle technical advisory committee based on competent evidence but in no event will be more than four years.

(Ord. No. 86-15, § 5, 6-11-86; Ord. No. 95-02, § 1, 1-4-95)

Note--Formerly § 14-117.

Sec. 14-116. Eagle technical advisory committee.

(a) The county eagle technical advisory committee (ETAC) will consist of five residents of the county appointed by the Board of County Commissioners for the purpose of advising the Board of County Commissioners on matters relating to the protection of the southern bald eagle. Each eagle technical advisory committee member should have extensive technical or practical knowledge of the southern bald eagle biology and must be qualified by either training or experience to render advice regarding the protection of critical southern bald eagle nesting habitat.

(b) The term of office for a member of the eagle technical advisory committee will be two years; however, so as to provide for staggered terms, two members will be appointed initially to one-year terms, and the remaining three members to two-year terms.

(c) The eagle technical advisory committee will review all pertinent or current eagle technical documents and provide expert advice to the Board of County Commissioners, the department of community development and the general public.

(d) The eagle technical advisory committee will review management plans and make recommendations to the Board of County Commissioners in accordance with section 14-119.

(e) The county department of community development, division of natural resources management, with assistance from the county attorney's office will serve as support staff to the eagle technical advisory committee.

(f) The eagle technical advisory committee will determine occupancy of southern bald eagle nests not included on FGFWFC's annual southern bald eagle nesting survey.

(g) The eagle technical advisory committee, with assistance of appropriate staff, will maintain and update as necessary a list or map of occupied southern bald eagle nests and will monitor nest sites on a regular basis, with the permission of the property owner, if required.

(Ord. No. 86-15, § 4, 6-11-86; Ord. No. 95-02, § 1, 1-4-95)

Note--Formerly § 14-115.

Sec. 14-117. Public acquisition of rights and interest in critical eagle nesting habitat lands.

(a) The county may acquire rights and interests in real property designated as a critical eagle nesting habitat. When a developer or property owner cannot accommodate critical eagle nesting habitat through reasonable site planning or proper access, the county may acquire an interest through:

(1) Receiving donations of critical eagle nesting habitat lands;

(2) Purchase or conveyance by dedication of a perpetual conservation easement;

(3) Outright purchase or lease of critical eagle nesting habitat;

(4) Acquisition through eminent domain proceedings pursuant to article II, section 9, and article X, section 6, of the state constitution and applicable provisions of the Florida Statutes; or

(5) Implementation by the Board of County Commissioners of any combination of these or other actions to acquire rights and interests that balance the public and private interests.

(b) Monies needed for the purchase of critical eagle nesting habitat, or the purchase of conservation easements to protect these habitats, may be funded by public and private donations. Funding may also be solicited in a general community appeal on license tag renewals and ad valorem tax envelopes issued by the county tax collector, and by monies appropriated from the general fund by the Board of County Commissioners from time to time. All funds received and the earnings from such funds will be escrowed in a special account for use in the acquisition of critical eagle nesting habitat or the purchase of conservation easements.

(Ord. No. 86-15, § 6, 6-11-86; Ord. No. 95-02, § 1, 1-4-95)

Note--Formerly § 14-118.

Sec. 14-118. Notification procedure.

Lee County will notify the FGFWFC and the U.S. Fish and Wildlife Service upon receipt of any application for a planned development rezoning, a development order, a notice of clearing, or a building permit for any property located within 750 feet of a nest. The notice must include any available information gathered by the eagle technical advisory committee regarding the behavior of the eagles who are occupying the nest.

(Ord. No. 95-02, § 1, 1-4-95)

Sec. 14-119. Mechanisms for the protection of critical eagle nesting habitat.

(a) Single- or two-family dwelling unit (including accessory structures.) Appropriate conditions limiting or prohibiting development during the nesting season may be attached to building permit approvals for property to which this division is applicable where such conditions are deemed necessary by the director of the department of community development (or designee) to prevent a "take" of the eagle, as that term is defined in FAC rule 39-1.004(77).

(b) Agricultural activities. All persons intending to conduct agricultural activities on property to which this division is applicable are encouraged to consult with the eagle technical advisory committee prior to submittal of an application for a notice of clearing or the commencement of clearing activities.

(c) All other development.

(1) All persons contemplating the development of property to which this division is applicable are encouraged to consult with the eagle technical advisory committee and the division of natural resources management as early in the planning and design process as possible.

(2) With assistance from the eagle technical advisory committee, all such persons are encouraged to prepare a management plan that protects critical eagle nesting habitat. All such management plans will be reviewed by Lee County staff and the eagle technical advisory committee prior to approval by resolution of the Board of County Commissioners.

(3) All development within critical eagle nesting habitat and buffer areas must be consistent with the approved management plan.

(4) Management plans must address, at a minimum, the following items:

a. Description of the land around the critical eagle nesting habitat, including locations of nest tree(s) and perch tree(s), vegetation types, and a description of the type and density of understory and canopy vegetation;

b. History and behavior patterns of the eagle pair;

c. A one inch equals 200 feet aerial map and a map at the scale of the development which shows the location of the eagle's nest and other critical eagle nesting habitat features as well as the proposed development;

d. The size and shape of the buffer area;

e. Measures to reduce potential adverse impacts of the development on the nesting bald eagles;

f. A critical eagle nesting habitat management plan which shall include techniques to maintain viable nesting habitat. These techniques may include controlled burning, planting, or removal of vegetation, invasive exotic species control, maintaining hydrologic regimes, and monitoring;

g. Deed restrictions, protective covenants, easements, or other legal mechanisms running with the land that provide reasonable assurances that the approved management plan will be implemented and followed by all subsequent owners of the property in question;

h. A commitment to educate future owners, tenants, or other users of the development about the specific requirements of the approved eagle management plan and the state and federal eagle protection laws.

(5) The legal effect of management plans will be limited geographically to property owned or controlled by the proponent of the plan.

(6) The eagle technical advisory committee will consider the guidelines promulgated by FGFWFC and the U.S. Fish and Wildlife Service in the review of management plans and may request technical assistance from the FGFWFC or the U.S. Fish and Wildlife Service whenever necessary.

(7) An approved management plan will remain effective notwithstanding the abandonment of a nest unless the abandonment occurs prior to the use of any incentives (see section 14-120 below) and the property owner relinquishes the incentives by amending the development order or taking other appropriate action.

(Ord. No. 86-15, § 10, 6-11-86; Ord. No. 95-02, § 1, 1-4-95)

Note--Former § 14-122.

Sec. 14-120. Compensation incentives for protection of critical eagle nesting habitat.

Incentives for the preservation of critical eagle nesting habitat pursuant to approved management plans will be granted in accordance with the standards in section 10-474(e) provided, however, that nothing in this section may be construed to impair the value of incentives previously approved by the Board of County Commissioners pursuant to Ordinance No. 86-15.

In addition to the incentives already provided herein, if the Board of County Commissioners elects not to acquire a critical eagle nesting habitat, then the board may permit all or some of the following special compensation benefits as incentives to the developer or property owner for the purpose of protecting critical eagle nesting habitat:

(1) For a buffer area of 350 feet in radius or an approximate equivalent acreage, minimum, the following benefits will be granted:

    1. The property owner will be allowed to transfer density from within the buffer area to designated upland areas within the subject property at the same density permitted for the property as determined through the residential planned development process. For a buffer, area or portion thereof, composed of wetlands, an internal transfer of one development right per five acres will apply.

b. The property owner will be allowed priority review and processing of zoning and development applications for the subject property, and, if applicable, one other parcel under unified control.

(2) For a buffer area of 550 feet in radius or an approximate equivalent acreage, the following benefits, in addition to those set forth in subsection (1) of this section, shall be granted:

a. The county shall waive the zoning application fee on the subject property, and, if applicable, one other parcel under unified control;

b. The county shall waive building permit application fees on the subject property, and, if applicable, one other parcel under unified control; and

c. The county shall waive development review related fees on the subject property, and, if applicable, one other parcel under unified control.

(3) For a buffer area of 750 feet in radius, or an approximate equivalent acreage, the following benefits, in addition to those set forth in subsections (1) and (2) of this section, shall be granted: The county shall provide a credit against regional park impact fees on the subject property, and, if applicable, one other parcel under unified control located within the same regional park impact fee district. In no event shall the credit towards the regional park impact fee exceed the appraised value of the dedicated land.

(4) In order to receive the benefits mentioned in this section, the buffer areas shall be designated as critical eagle nesting habitat and shall be conveyed to the county by either warranty deed or by dedication of a perpetual conservation easement.

(5) The increase in buffer area beyond the minimum radius is directly proportional to additional incentive benefits which may be requested and may be received by the developer or property owner pursuant to the terms of this division.

(6) In no event shall the amount of fees waived or credited set forth in subsections (2) and (3) of this section exceed twice the appraised value of the buffer area conveyed to the county. The appraised value shall be based on two current documented appraisals of the fair market value or sales price of the land. Appraisals must be prepared by qualified appraisers and are subject to approval by the county administrator.

(Ord. No. 86-15, § 7, 6-11-86; Ord. No. 95-02, § 1, 1-4-95; Ord. No. 96-17, § 3, 9-18-96)

 

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