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AGENDA BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OCTOBER 24, 2000 Substitute Page ******************************************************************************** Item 1 Minutes Submittal of the Minutes from the September 12, 2000 Cabinet Meeting. RECOMMEND ACCEPTANCE
****************************************************************************** Item 2 Delegation of Authority to Disclaim Lands Lost Due To Avulsion / Section 18-21.019, F.A.C. DEFERRED FROM THE SEPTEMBER 12, 2000 AGENDA DEFERRED FROM THE SEPTEMBER 26, 2000 AGENDA REQUEST: Consideration of delegation of authority to the Secretary of the Department of Environmental Protection, or his designee, to issue disclaimers for privately-owned lands that were lost due to avulsion pursuant to section 18-21.019(4), F.A.C., where appropriate and delivering document(s) to the Board of Trustees for signature. LOCATION: Statewide STAFF REMARKS: An avulsive event is the sudden or perceptible loss of or addition to land by the action of water, or a sudden change in the bed of a lake or the course of a stream. These events have created hardships on the landowner. Over the past six years, seven applications for disclaimers have been processed as a result of avulsive events caused by storms. Currently there are no disclaimer applications pending. In an effort to expedite the process on future applications where there is no controversy or objection to granting the disclaimer, staff is recommending that these items be delegated to the Secretary of the Department of Environmental Protection, or his designee in the following manner. Staff proposes to process future applications by: (1) issuing disclaimers for avulsion pursuant to section 18-21.019(4), F.A.C., where there is no controversy or objection and delivering document(s) to the Board of Trustees for signature; and (2) placing those applications that are controversial or questionable on the Board of Trustees’ agenda for formal consideration. RECOMMEND WITHDRAWAL ****************************************************************************** Substitute Item 3 2000 CARL Interim Report/Interim Priority List REQUEST: Consideration of (1) the 2000 Conservation and Recreation and Lands (CARL) Interim Report of the Acquisition and Restoration Council, and (2) the 2000 Interim CARL Priority List. LOCATION: Statewide STAFF REMARKS: The 2000 Conservation and Recreation Lands (CARL) Interim Report was prepared pursuant to chapter 259, F.S., and Rule 18-8, F.A.C. The newly established Acquisition and Restoration Council (ARC) met on June 27, July 17-18, August 21-22, September 18-19, and October 16-17 of this year. The ARC added one project and approved Board of Trustees Agenda – October 24, 2000 Substitute Page Two
****************************************************************************** Substitute Item 3, cont. project design amendments to 13 projects on the CARL Priority List. The Interim Report includes: (1) the 2000 Interim CARL Priority List of Bargain/Shared CARL projects; (2) the project assessment and project design for the new Cedar Swamp project that was added to the priority list; and (3) maps and descriptions of 13 other projects whose boundaries have been modified. The Cedar Swamp project was submitted by the City of Jacksonville (City) to protect the rapidly declining open space and conservation lands in Duval County. Phase I contains significant areas of high quality longleaf pine, sandhill and mesic flatwoods and a section of Pablo Creek with its well developed floodplain swamp. The tract also supports at least one clan of red-cocaded woodpeckers. Much of the habitat has been fire suppressed but has intact ecotones between the natural communities and little disturbance other than a network of sand roads. Phase II contains areas of intact mesic flatwoods and a series of parallel north-south narrow ridges with disturbed flatwoods and sandhill. Many of these ridges are planted with slash pines and separated by equally narrow swampy wetlands. These areas of greenspace are rapidly diminishing in size due to surrounding residential development. Because a portion of this project is imminently threatened with development, the City asked the ARC to expedite the CARL evaluation and selection process to facilitate its acquisition. St. Johns River Water Management District acquired a less-than-fee interest in 1,100 acres within the project boundary, while the City seeks the state as a partner in the acquisition of 3,300 acres. Cedar Swamp is ranked number 12 on the Bargain/Shared List of CARL projects. (This will be determined by ARC on October 17, 2000) Projects whose boundaries have been modified since the approval of the CARL Annual Report on February 22, 2000 include: Atlantic Ridge Ecosystem (Martin County), Estero Bay (Lee County), Etoniah/Cross Florida Greenway (Marion County), Fakahatchee Strand (Collier County), Florida’s First Magnitude Springs – Cypress Spring (Washington County), Ichetucknee Trace (Columbia County), North Fork of the St. Lucie River (St. Lucie County), Pierce Mounds (Franklin County), Pinhook Swamp (Columbia County), Pumpkin Hill Creek (Duval County), St. Joe Timberland (Gulf and Taylor Counties) and Twelve Mile Swamp (St. Johns County). In addition to these, the Department of Environmental Protection received a certified request from two land owners to remove their property from the Belle Meade CARL project. Pursuant to section 259.032(16), F.S., the Board of Trustees shall delete the property from the list or from the boundary of an acquisition project on the list when such property is not listed for purchase in the current year's land acquisition work plan. These parcels were not included in this year’s land acquisition work plan because the owners were unwilling to sell at the price the state was willing to offer. Therefore, they have been removed from the Belle Meade CARL project boundary that is included in the Interim Report. The 2000 CARL Interim Priority List is consistent with section 187.201(10), F.S., the Natural Systems and Recreation Lands section of the State Comprehensive Plan. (See Attachment 3, Pages 1-3) RECOMMEND APPROVAL ****************************************************************************** Item 4 Fiscal Year 1999-2000 Annual Land Management Review Team Findings REQUEST: Consideration of Annual Land Management Review Team findings for Fiscal Year 1999-2000. Board of Trustees Agenda – October 24, 2000 Page Three
****************************************************************************** Item 4, cont. COUNTY: Statewide APPLICANT: Division of State Lands STAFF REMARKS: Section 259.036, F.S., requires the Board of Trustees, acting through the Department of Environmental Protection (DEP), to conduct management reviews of selected conservation, preservation and recreation lands titled in the Board of Trustees to determine whether those lands are being managed for the purposes for which they were acquired and in accordance with their adopted management plans. The legislation requires DEP to submit a report of its findings to the Board of Trustees no later than the second board meeting in October of each year. Properties to be reviewed were selected from a database of the Board of Trustees’ land based on managing agency, plan due-dates, and geographic location. Regional review team members were selected in accordance with the requirements of the legislation to include representatives of the following: (1) the county or local community in which the parcel is located; (2) the Division of Recreation and Parks; (3) the Division of Forestry; (4) the Florida Fish and Wildlife Conservation Commission; (5) the DEP’s district office; (6) the private sector; (7) the local Soil and Water Conservation District board of supervisors; and (8) a conservation organization. To assist the team in conducting its evaluation, a checklist was provided to each team member along with a copy of the current management plan, management policy statement, management prospectus, and related documents when available. In order to improve the review process, the Division of State Lands staff, along with advisors and site managers, inspected selected properties prior to the formal review to provide information necessary for meeting required objectives. Participating state agencies, soil and water conservation districts, and conservation groups have had continual input into the development and ongoing evolution of the review process. The DEP staff that coordinate the state’s land management review teams also met with representatives of the Water Management Districts (WMD) to integrate management reviews where WMD lands are adjacent to Board of Trustees’ lands and when the Board of Trustees has joint ownership of parcels with a WMD. Thirty-one reviews were conducted during the 1999-2000 fiscal year involving more than 257,497 acres of managed lands. Reports of the management review team findings are provided to the managing agency and the Acquisition and Restoration Council. The Acquisition and Restoration Council was provided copies of the team findings during the October 16 and 17 council meeting and public hearing. Overall, the teams found that public access was adequate in all sites visited. On 21 percent of the sites, managers were doing an exceptional job of restoring disturbed natural areas. On 38 percent of the managed areas, the prescribed burn program was found to be excellent. On 8 percent of the sites visited, the burn frequency and area receiving prescribed burns was found to be inadequate to preserve, restore, or maintain the natural communities. Non-native invasive plants were a management issue on most of the lands reviewed, and control measures were adequate on all sites visited. Degradation/alteration of surface water resources was a concern at 7 percent of the sites, with 56 percent of the management plans adequately covering degradation/alteration of surface water. Degradation/alteration of groundwater resources was adequately managed in the field, and 47 percent of the plans adequately covered degradation/alteration of groundwater. Only 19 percent of the sites have inadequate plans for protection of listed plants and animals or inventories of listed plants and animals, but all sites were adequate in actual management practices to protect the listed plants and animals. Law enforcement was adequate to protect the resources on 94 percent of the lands reviewed. On 25 percent of the sites, the public education and outreach programs were found to be excellent. Most management problems may be directly related to a lack of funding: 23 percent of the managed areas were found to have Board of Trustees Agenda – October 24, 2000 Substitute Page Four
****************************************************************************** Item 4, cont. inadequate staff and 26 percent were found to have inadequate equipment to properly manage the natural resources. Overall, however, the review teams found that the managers of these areas are dedicated professionals who are doing an excellent job with the resources available. All of the properties reviewed were found to be managed for the purpose for which they were acquired, and actual management practices, including public access, were found to be in compliance with the management plans. The report of the annual review team findings is consistent with section 259.036, F.S., and with the Natural Systems and Recreation Lands section of the State Comprehensive Plan. (See Attachment 4, Pages 1-3) RECOMMEND ACCEPTANCE ****************************************************************************** Substitute Item 5 FWCC/TPL Option Agreement/Lake Tohopekaliga Fish Management Area DEFERRED FROM THE OCTOBER 10, 2000 AGENDA REQUEST: Consideration of an option agreement to acquire 97.75 acres adjoining the Lake Tohopekaliga Fish Management Area by the Florida Fish and Wildlife Conservation Commission under the Preservation 2000 program from The Trust For Public Land. COUNTY: Osceola APPLICANT: Florida Fish and Wildlife Conservation Commission LOCATION: Sections 34 and 35, Township 25 South, Range 29 East; and Section 02, Township 26 South, Range 29 East CONSIDERATION: $4,745,126 APPRAISED BY SELLER’S TRUSTEES’ REVIEW Catlett Goodman APPROVED PURCHASE PURCHASE OPTION NO. PARCEL ACRES (04/28/00) (04/28/00) VALUE PRICE PRICE DATE 001701 TPL 97.75 $5,130,000 $5,000,000 $5,130,000 $4,745,126* $4,745,126 120 days (92%) after BOT * Prior to TPL obtaining an option to purchase the property, the owners held title to the property for decades. approval STAFF REMARKS: This acquisition was negotiated by the Florida Fish and Wildlife Conservation Commission (FWCC) under the P2000 program and approved by the FWCC on September 6, 2000. This property adjoins the Lake Tohopekaliga Fish Management Area and is on the current FWCC acquisition list. The Trust For Public Land (TPL) currently holds an exclusive option agreement to acquire this parcel. TPL will either exercise its option prior to closing or at a simultaneous three party closing with the state. Improvements on the island consist of a small caretaker’s cottage and a metal pole barn. The FWCC, the future managing agency, plans to evaluate and review the improvements for its Board of Trustees Agenda – October 24, 2000 Substitute Page Five
****************************************************************************** Substitute Item 5, cont.
potential use and historical value during the development of the management plan for the property. All mortgages and liens will be satisfied at the time of closing. On June 22, 1999, the Board of Trustees approved a staff recommendation to delegate to the Department of Environmental Protection (DEP) the authority to review and evaluate marketability issues as they arise on all Chapter 259, F. S., acquisitions and to resolve them appropriately. Therefore, DEP staff will review, evaluate and implement the most appropriate resolution for any title issues that arise prior to closing. The contract states that the seller will provide a survey for the entire property; however, the Bureau of Survey and Mapping has determined that a survey is not necessary for the island parcel. The seller will provide a boundary survey for the shore parcel, along with an environmental site assessment and title insurance policy for the entire property prior to closing. The FWCC will reimburse the seller’s cost of the title insurance policy, the environmental site assessment and the boundary survey. This acquisition consists of two parcels of land including Paradise Island (88.26 acres) and a 9.49-acre shoreline parcel, which serves as the staging area for access to the island. Paradise Island lies within the northern portion of Lake Tohopekaliga, while the shoreline parcel is located immediately east of the island on the eastern shoreline of the lake. The natural topography of portions of both the island and shore parcels has been altered somewhat through its conversion to citrus groves. Approximately 60 acres of the island’s interior is covered by a citrus grove which has been in operation for nearly 50 years. Nearly 75 percent of the shore parcel contains a citrus grove. Predominant natural vegetation remaining on the island and shore parcel are common to this physiographic region and consists of mature live oaks, Sabal palms, southern magnolias, cedars, and cypress trees. The outer fringe and shoreline of the island are in a relatively natural condition transitioning from oak hammock to cypress swamp and freshwater marsh communities providing important wildlife habitat. While a biological survey of the island has not been conducted, FWCC staff has observed listed species such as wood storks, snail kites and bald eagles on the island. Both Paradise Island and its sister, Cypress Island, which is located immediately south of Paradise Island, have been the subjects of various development plans over the past two decades. FWCC staff has carefully monitored and commented on proposed development plans for Paradise Island and adjacent Cypress Island for some time due to the impacts any development would have on the lake and FWCC’s need to periodically draw it down. Despite these efforts, both islands were assigned the Toho Islands Land Use designation in the future land use component of the Osceola County comprehensive land use plan. This designation is uncommon within the state and permitted two tiers or alternatives for extensive development on both islands. Consequently, staff concluded that both islands were under imminent threat of development given the proximity of the islands to the Greater Orlando Metropolitan Area, the increasing intensity of development in the surrounding area, the approval of the Toho Islands Land Use designation, and the uniqueness of these lands. If the islands are developed, not only will we lose a unique and important conservation resource, but it would be more difficult to manage the Lake Tohopekaliga Fish Management Area. Fish management areas are established by FWCC pursuant to chapter 372, F.S., to facilitate the restoration, improvement, and maintenance of fresh water fisheries habitat in lakes or other water bodies through the development and implementation of fisheries habitat enhancement Board of Trustees Agenda – October 24, 2000 Substitute Page Six
****************************************************************************** Substitute Item 5, cont. projects. Due to flood control concerns, interconnections between lakes in the Kissimmee chain were channelized and structures were built at lake out-flows by the U. S. Army Corps of Engineers (COE). The resulting stabilized lake levels, along with increased nutrient loading and upland development continue to cause degraded fish and wildlife habitat in littoral areas of Lake Tohopekaliga as well as other lakes within the Kissimmee chain of lakes. As a result, FWCC staff began developing plans to improve and restore the fish and wildlife habitat in the Kissimmee chain of lakes as it has in other lakes within Florida. Although Lake Tohopekaliga was not formally established as a fish management area until 1998, FWCC has been conducting restoration and improvement activities on the lake since 1971. FWCC staff are continuing to work in cooperation with the South Florida Water Management District (SFWMD) and COE staff to incorporate drawdowns on 10-year intervals into the existing fluctuation schedules for the chain of lakes. Permits and agreements have been received from the DEP, the COE and the SFWMD for lake habitat enhancement work currently scheduled to be conducted on Lake Tohopekaliga in 2001-2002. The FWCC believes that public ownership of the islands will ensure that future lake enhancement activities can be conducted without disputes with the private owners over access to the islands which have occurred during previous lake drawdowns. Development of Paradise Island as a private residential community would increase the likelihood of such disputes and seriously compound the difficulties associated with conducting periodic drawdowns of Lake Tohopekaliga to conduct future lake restoration and enhancement activities. Moreover, both of these islands are exceptionally unique natural resources. For these reasons, Paradise Island and Cypress Island were approved as additions to the FWCC acquisition list in July of 1998. The concept of acquiring conservation easements on both islands was discussed with both owners, to no avail. As a result, staff proceeded with efforts to acquire Cypress Island outright and were successful in securing the approval of the Board of Trustees to purchase it in August of 1999. It should be noted that the Board of Trustees expressed serious concerns about the acquisition of Cypress Island before it was approved for purchase. Their concerns appeared to be primarily focused on the margin of difference between the state’s purchase price and the price Mr. Hoch paid for the property. Other questions focused on the level at which the parcel was ranked on the FWCC acquisition list, its plans for use of the island and shore property, the overall importance of the project to its acquisition program and the survey waiver request. The FWCC addressed those concerns and after considerable debate and a deferral, the acquisition was approved. The acquisition of Paradise Island is, as was the acquisition of Cypress Island, an important component of the FWCC’s plans to restore and protect the Kissimmee chain of lakes, including Lake Tohopekaliga, which ultimately drains into Lake Okeechobee and the Everglades basin. Acquisition of the island and its related shoreline parcel will allow for continued periodic drawdowns of the lake, provide additional wildlife habitat, increase resource-based outdoor recreational opportunities for the increasingly urbanized Central Florida Region, and enhance the overall management of the Lake Tohopekaliga Fish Management Area. The property will be managed by the FWCC as an addition to the Lake Tohopekaliga Fish Management Area for natural resource conservation and resource-based public outdoor recreation within a multiple use management regime.
Board of Trustees Agenda – October 24, 2000 Additional Page Six-A
****************************************************************************** Substitute Item 5, cont. This acquisition is consistent with section 187.20(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan. (See Attachment 4, Pages 1-35, submitted with the October 10, 2000 Agenda) RECOMMEND APPROVAL
****************************************************************************** Item 6 TNC Assignment of Option Agreement (Bailey, Green et al.)/Perdido Pitcher Plant Prairie CARL Project REQUEST: Consideration of the acceptance of an assignment of option agreement to acquire 53.4 acres within the Perdido Pitcher Plant Prairie CARL project from The Nature Conservancy, Inc. COUNTY: Escambia LOCATION: Section 05, Township 03 South, Range 31 West CONSIDERATION: $542,540 ($527,000 for the acquisitions; $15,540 for the purchase of the option agreements) APPRAISED BY SELLER’S TRUSTEES’ REVIEW Carroll APPROVED PURCHASE PURCHASE OPTION NO. PARCEL ACRES (11/11/99) VALUE PRICE PRICE DATE 001702 Bailey,Green, 53.4 $587,000 $587,000 * $542,540 90 days after et al. / 49 (92%) BOT approval * George Haber, the majority owner, and associates acquired the property in 1979 as part of a 200-acre parcel. STAFF REMARKS: The Perdido Pitcher Plant Prairie CARL project is ranked number 4 on the CARL Priority Project List approved by the Board of Trustees on February 22, 2000, and
(AGENDA CONTINUED ON NEXT PAGE)
Board of Trustees Agenda – October 24, 2000 Page Seven
****************************************************************************** Item 6, cont. is eligible for negotiation under the Division of State Lands’ (DSL) Land Acquisition Workplan. This project contains 5,797 acres, of which 3,600.1 acres have been acquired. After the Board of Trustees approves this agreement, 2,143.5 acres or 37 percent of the project will remain to be acquired. Pursuant to a multi-party acquisition agreement entered into between the DSL and The Nature Conservancy, Inc. (TNC), TNC has acquired an option to purchase a parcel from Grover J. Bailey, Paul G. Greene, George H. Haber, Angie Nelson, Don A. Reynolds, Clyde Taylor, Robert G. Turner and The Celt, LLC, a Georgia Limited Liability Company. After this acquisition is approved, the Board of Trustees will acquire the option for the subject parcel from TNC for $15,540, which represents agreed upon compensation to TNC for overhead associated with acquiring the option. The assignment of option agreement provides that payment to TNC is contingent upon the Board of Trustees successfully acquiring the property from the owners. The assignment of option agreement further provides that in no event will the purchase price for the option and the purchase price of the property exceed the DSL approved value of the property. All mortgages and liens will be satisfied at the time of closing. The entire property is subject to an undivided 50 percent interest in all oil, gas and minerals in favor of Escambia Christian School, Inc., a non-profit corporation, recorded on March 21, 1973. A Gulf Power Company easement traverses the north boundary. On June 22, 1999, the Board of Trustees approved a staff recommendation to delegate to the Department of Environmental Protection (DEP) the authority to review and evaluate marketability issues as they arise on all chapter 259, F.S., acquisitions and to resolve them appropriately. Therefore, DEP staff will review, evaluate and implement the most appropriate resolution for these and any other title issues that arise prior to closing. A survey, title insurance policy, environmental site evaluation and, if necessary, environmental site assessment will be provided by the purchaser prior to closing. The property has high quality wetland resources. The parcel would provide excellent public and management access from Blue Angel Parkway to uplands in the eastern portion of the preserve without impacting wetlands. While there is legal access to state-owned lands north of Sorrento Road, wetlands would have to be impacted to access interior upland parcels. Wetlands border most of the unacquired portions of the project adjacent to Sorrento Road. The pine flatwoods and swamps west of Pensacola are interrupted by wet grassy prairies dotted with carnivorous pitcher plants, some of the last remnants of a landscape unique to the northern Gulf coast. Public acquisition of the Perdido Pitcher Plant Prairie CARL project will conserve these prairies and the undeveloped land around them, helping to protect the water quality of Perdido Bay and Big Lagoon, and giving the public a wealth of opportunities to learn about and enjoy this natural land. This property will be managed by the DEP’s Division of Recreation and Parks as a part of the Tarkiln Bayou State Preserve. This acquisition is consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan. (See Attachment 6, Pages 1-41) RECOMMEND APPROVAL Board of Trustees Agenda – October 24, 2000 Substitute Page Eight
****************************************************************************** Substitute Item 7 BOT/Citrus Mining & Timber, Inc. Exchange Agreement/Florida Springs Coastal Greenway CARL Project REQUEST: Consideration of an exchange agreement to acquire 77.4 acres within the Florida Springs Coastal Greenway CARL project from Citrus Mining & Timber, Inc. in exchange for three parcels of surplus Cross Florida Barge Canal parcels totaling 28.8 acres.
COUNTY: Citrus LOCATION: Sections 08, 09, 16 and 17, Township 17 South, Range 16 East CONSIDERATION: $77,000 APPRAISED BY SELLER’S TRUSTEES’ REVIEW Arline APPROVED PURCHASE PURCHASE CLOSING NO. PARCEL ACRES (11/04/99) VALUE PRICE PRICE DATE 001706 16A 77.4 $106,000 $106,000 *$ 77,400 $106,000 180 days 71A, 71B 28.8 $ 29,000 $ 29,000 **unknown after BOT & 71C approval * estimated, purchased as a part of a larger parcel. **acquired in 1965 through Eminent Domain with several other parcels. STAFF REMARKS: The Florida Springs Coastal Greenway CARL project is ranked number 3 on the CARL Substantially Complete Project List approved by the Board of Trustees on February 22, 2000, and is eligible for negotiation under the Division of State Lands’ Land Acquisition Workplan. The project contains 40,966 acres, of which 28,632.06 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement, 12,256.54 acres or 30 percent of the project will remain to be acquired. On August 12, 1999, the Board of Trustees approved the surplusing of the three Barge Canal parcels. This exchange was contemplated at the time the three parcels were surplused. Pursuant to sections 253.111 and 253.783, F.S., the parcels were offered to Citrus County who responded with no interest. Pursuant to section 253.783, F.S., once Barge Canal parcels are offered to the County they are next offered to the original owner or heirs. The three parcels were purchased by the Canal Authority from Harbond, Inc. Citrus Mining & Timber, Inc. is heir to Harbond, Inc. by virtue of a merger with Hollins, Inc., which was purchased by Citrus Mining & Timber, Inc. Pursuant to section 253.783(2)(b), F.S., the sale of the three parcels to heirs of Harbond, Inc. was advertised in three newspapers of general circulation along the canal route and a local newspaper in Citrus County. The advertisements ran October 7, 2000 through October 20, 2000. The transaction between the Board of Trustees and Citrus Mining & Timber, Inc. will be a value-for-value exchange. The value assigned to the parcels currently owned by the Board of Trustees is its appraised value of $29,000. The value assigned to the parcel currently owned by Citrus Mining & Timber, Inc. is its appraised value of $106,000. At closing, the Board of Trustees will pay Citrus Mining & Timber, Inc. $77,000, which is the difference in value between the parcels being exchanged. Pursuant to section 253.783(2)(e) F.S., the appraised value of the Board of Trustees’ parcel, $29,000, will be deposited from the CARL fund to the Land Acquisition Trust Fund for management of the Cross Florida Greenway. The Board of Trustees’ previously purchased property located to the South of the 77.4 acres (Parcel One) along with an easement for ingress and egress over property that is currently owned by Citrus Mining & Timber, Inc. The purchase of Parcel One recommended in this Board of Trustees Agenda – October 24, 2000 Substitute Page Nine
****************************************************************************** Substitute Item 7, cont. item will make the state-ownership contiguous and provides legal and physical access over other state-owned lands. Therefore, the state has no further need for the easement. Citrus Mining & Timber, Inc. has asked that the easement be released as described in Paragraph 29 of the Exchange Agreement. The exchange of the surplus land to Citrus Mining & Timber Inc. does not include access to the former barge canal. All mortgages and liens will be satisfied at the time of closing. On June 22, 1999, the Board of Trustees approved a staff recommendation to delegate to the Department of Environmental Protection (DEP) the authority to review and evaluate marketability issues as they arise on all chapter 259, F.S., acquisitions and to resolve them as appropriate. Therefore, DEP staff will review, evaluate and implement the most appropriate resolution for any title issues that arise prior to closing. Survey, environmental site evaluation, environmental site assessment, if necessary and title insurance will be provided by the purchaser prior to closing for Parcel One. The appraisal, survey, title insurance and environmental site assessment, if desired, will be provided by Citrus Mining & Timber, Inc. for the 28.8 acres (Parcel Two). The ragged coastline of Citrus County, with its salt marshes, clear spring runs, hammocks, and flatwoods, is being affected by the explosive growth of this part of the state. Public acquisition of the Florida Springs Coastal Greenway CARL project will conserve the natural landscape of this coast, protecting the water quality of the spring runs and estuaries where endangered manatees congregate, preserving natural lands that link with conservation lands to the south, and providing scenic areas in which the public can enjoy fishing, hiking, or learning about the natural world of this coast. The property will be managed by the DEP’s Office of Coastal and Aquatic Managed Areas as a part of Crystal River State Buffer Preserve. This acquisition is consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan. (See Attachment 7, Pages 1-25) RECOMMEND APPROVAL ****************************************************************************** Item 8 YCK, Inc. v. BOT (f/k/a Canal Authority of the State of Florida) Mediated Final Judgement REQUEST: Consideration of a proposed mediated final judgment in the case of YCK, Inc. v. Board of Trustees of the Internal Improvement Trust Fund (f/k/a Canal Authority of the State of Florida), Fifth Judicial Circuit (Marion County) Court Case No. 86-4463, through the purchase of a perpetual flowage easement over 54.6 acres, a temporary easement over 9.5 acres and payment of prejudgment interest. COUNTY: Marion LOCATION: Sections 27 and 28, Township 11 South, Range 24 East APPLICANTS: Department of Environmental Protection (DEP) and YCK, Inc. Board of Trustees Agenda – October 24, 2000 Page Ten
****************************************************************************** Item 8, cont. CONSIDERATION: $440,360 (Includes prejudgment interest through October 1, 2000.) APPRAISED BY TRUSTEES’ REVIEW Arline Castillo APPROVED PURCHASE STATUTORY CLOSING NO. PARCEL ACRES (09/01/00) (09/01/00) VALUE PRICE INTEREST DATE 001705 YCK, Inc. 65.1 $136,000 $663,800 $136,000 $218,000 $222,360* 11/24/00 * Statutory interest calculated through October 1, 2000. By law, prejudgment interest will continue to accrue on the $218,000 at a rate of $59.73 per day until the judgment is paid. STAFF REMARKS: The Etoniah/Cross Florida Greenway CARL project is ranked number 9 on the CARL Priority Project List approved by the Board of Trustees on February 22, 2000, and is eligible for negotiation under the Division of State Lands’ Land Acquisition Workplan. The project contains 43,564 acres, of which 20,271.7 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement, 23,237.7 acres or 53 percent of the project will remain to be acquired. In 1966, the Canal Authority of the State of Florida acquired the right to flood land in Putnam and Marion counties as part of the Cross-Florida Barge Canal Project. The Canal Authority obtained Judgments of Condemnation granting the state either fee simple title or perpetual flowage easements to flood private property "in connection with the construction, operation and maintenance of the Cross-Florida Barge Canal Project." In 1968, the Rodman Dam was completed and the land was flooded by the Rodman Reservoir. In 1990, Congress and the Florida Legislature adopted related legislation to deauthorize the Cross-Florida Barge Canal and to establish the Cross Florida Greenway in its place. The Cross-Florida Barge Canal was officially deauthorized on January 22, 1991, by adoption of a Resolution by the Governor and Cabinet which agreed, on behalf of the State of Florida, to the terms of the federal deauthorization. This lawsuit involves lands covered by a flowage easement donated to the Canal Authority in 1966. By its own terms the easement terminates and reverts to the underlying property owner at such time as the easement is no longer needed for the Cross-Florida Barge Canal. The subject property has remained flooded by the Rodman Reservoir for more than nine years following the deauthorization of the Barge Canal. In 1986, five years prior to deauthorization, YCK, Inc. filed suit against the Canal Authority to quiet title to this land, and subsequently added a count for inverse condemnation resulting from the continued flooding of the property following deauthorization. On June 29, 1999, the Circuit Court issued an Order of Taking and Partial Final Judgment, ruling that the easement terminated on January 22, 1991, upon deauthorization, and held that the State has taken a new perpetual flowage easement over the property through the continued flooding of the land. The new easement covers 54.6 acres of land from the Oklawaha River to an elevation of 18 feet above mean sea level. The court ordered a jury trial to assess the value of the easement as of January 22, 1991. The easement area is part of a 160-acre tract that is zoned for a recreational vehicle park. The easement property is separated from the rest of the property by a high bluff above the river (Reservoir) basin. There are approximately 76 acres at the top of the bluff which are being used for an RV park. The new easement boundary was set by the Circuit Court at an elevation of 18 feet above mean sea level, which is the predominant high water stage of the Reservoir. The 1966 easement encompassed approximately 65 acres of the total 160-acre tract. The new perpetual flowage easement covers 54.6 acres. Additionally, there are about 9.5 acres within Board of Trustees Agenda – October 24, 2000 Page Eleven
****************************************************************************** Item 8, cont. the original easement area that are excluded from the new flowage easement area. This land remained encumbered by the terms of the 1966 easement (though not actually flooded) and the original easement prohibited construction of any improvements on this property, including any improved access to the Reservoir. Accordingly, the Board of Trustees must also pay for a temporary easement over this 9.5-acre area from January 22, 1991 through June 29, 1999. In calculating the value of the continuing easement, the property is appraised as if it was dry on the valuation date of January 22, 1991. In analyzing the value of the new perpetual flowage easement, the appraisers considered the value of the 54.6-acre perpetual easement from 1991 into the future and the impact of this easement on the remaining 106 acres of the property. Each side obtained appraisal testimony for trial. The appraisers also calculated the value of a temporary easement over the 9.5 acres from January 22, 1991 through June 29, 1999. The testimony (compared to the proposed settlement values) would have been as follows: State Landowner Proposed Settlement Appraiser: John Arline Appraiser: Eliu Castillo New perpetual easement $ 98,000 $619,000 $177,000 Temporary 9.5-acre easement $ 38,000 $ 43,000 $ 40,000 Total $136,000 $663,800 $218,000 The two appraisers obviously widely diverged in their approaches to determining value. The landowner’s appraiser assumed that the entire 160 acres of land could accommodate an RV park with 1,228 units. Even though the acreage below the bluff was jurisdictional wetlands prior to being flooded, Marion County officials would permit the RV unit density attributed to the flooded acreage to be clustered on top of the bluff. Using this density to value the entire 160-acre property as suitable RV park land, the landowner’s appraiser placed a value of $8,000 per acre on the land within the new perpetual easement. The landowner’s appraiser then assumed that the easement would constitute 95 percent of fee value. By contrast, the State’s appraiser assumed that the land within the easement area includes 5 acres of uplands and 58 acres of jurisdictional wetlands. The State’s appraiser took the position that the property would consist largely of a mudflat on the wetland acreage after more than 30 years of flooding. Comparable wetland sales were $400 per acre in the area. The appraiser then discounted the value of the wetland for the period of time it would take for the land to resume its natural condition, resulting in a value of $120 per acre for wetlands and $4,000 per acre for uplands. Included within a valuation of the new perpetual flowage easement is a consideration of the impact of the new easement on the value of the remaining land resulting from restrictions upon the landowner’s use of the property and access to the Reservoir. The State’s appraiser assumed a 10 percent loss in value for this period. He placed a value of $1,400 on each RV space, assuming a maximum density of 546 units, and assumed that each RV site lost $140 in value. The landowner’s appraiser compared the RV park income over this period to income from other RV parks in the area. He determined that the income was less than half of the typical RV park rentals for the same period. Applying his value of $8,000 per acre to the land outside the easement area, he calculated an annual land rent value of $5,949 per month. The landowner’s appraiser opined that the owner lost half of the rental value of the land, or $2,975 per month, during the 101 months between January 1991 and June 1999. Both appraisers also placed a value on the temporary easement taken by the State over the 9.5 acres of dry land encumbered by the restrictions of the original easement from January 22, 1991 until June 29, 1999, the date the Circuit Court made its determination that the original flowage easement expired. During this time the owner was prohibited from constructing Board of Trustees Agenda – October 24, 2000 Page Twelve
****************************************************************************** Item 8, cont. access to the Reservoir from the bluff or using the land subject to the easement in any manner. For this analysis, the appraisers treated the property as if it were flooded during this period. The landowner’s appraiser used his $8,000 per acre value across the board, while the State’s appraiser placed a value of $7,500 per acre on the uplands as lakefront property. Both appraisers figured an annual land rental basis of 10 percent of fee value for the temporary easement. The landowner used 9.67 acres and the State used 9.0 acres. This resulted in a valuation of $38,000 by the State and $43,000 by the landowner. Under the proposed mediated final judgment, value for the temporary easement is settled for $40,000. Approval of the mediated final judgment avoids the risk of incurring a much larger jury verdict. The various compensation components of this case would be difficult for a jury of 12 persons to fully understand, and both parties feel that it would be equally difficult for the State and for the landowner to argue their respective per acre values ($120 vs. $8,000). A jury could easily split the difference at $4,000 per acre, resulting in a verdict in the range of $240,000 (compared to the settlement amount of $107,000) for this component alone. The impact to the remaining property would be equally difficult to explain. Prejudgment interest will apply to the $218,000 settlement amount at the statutory rate from January 22, 1991 until payment is made. It is estimated that this will add 102 percent or $222,360 to the settlement amount through October 1, 2000. Interest will continue to accrue at the rate of $59.73 per day until the judgment is paid. The Board of Trustees’ approval of the mediated final judgment also saves the trial costs for the experts on both sides, for which the Board of Trustees is responsible. Both sides have enlisted the testimony of appraisers and land planners, and it is estimated that each expert would spend 30 to 40 hours in trial preparation and testimony. It is estimated that the Board of Trustees would spend $15,000 to $25,000 on expert witnesses. Together with travel, court reporters and other litigation expenses, the cost of trial would reach $30,000 or more. The Office of Greenways and Trails will administer the easement over the property as a part of the Cross Florida Greenway. Upon removal of the Rodman Dam and draining of the Reservoir, the easement would terminate and revert to the property owner. A consideration of the status of the local government comprehensive plan was not made for this item. The DEP has determined that the proposed settlement is not subject to the local government planning process. (See Attachment 8, Pages 1-22) RECOMMEND APPROVAL OF THE MEDIATED FINAL JUDGMENT AND SETTLEMENT OF THE LAWSUIT THROUGH THE PURCHASE OF A PERPETUAL FLOWAGE EASEMENT OVER 54.6 ACRES, A TEMPORARY EASEMENT OVER 9.5 ACRES AND PAYMENT OF PREJUDGMENT INTEREST ****************************************************************************** Item 9 Hawkins Avenue Corporation/Wood-Hopkins Contracting Co. Lease DEFERRED FROM THE JULY 25, 2000 AGENDA DEFERRED FROM THE SEPTEMBER 12, 2000 AGENDA DEFERRED FROM THE OCTOBER 10, 2000 AGENDA Board of Trustees Agenda – October 24, 2000 Page Thirteen
****************************************************************************** Item 9, cont. REQUEST: Consideration of an application for (1) a five-year sovereignty submerged lands lease containing 129,084 square feet, more or less, for a proposed commercial/industrial docking facility; (2) authorization for the severance of 17,205 cubic yards of sovereign material; and (3) authorization for the placement of 495 linear feet of bulkhead at the approximate mean high water line (MHWL). COUNTY: Duval BOT No. 162245689 Application No. 16-147715-004-DF
APPLICANT: Hawkins Avenue Corporation, a Georgia corporation (d/b/a Wood-Hopkins Contracting Company) LOCATION: Section 24, Township 01 South, Range 27 East, in the St. Johns River, Class III Waters, within the local jurisdiction of the city of Jacksonville Aquatic Preserve: No Outstanding Florida Waters: No Designated Manatee County: Yes, with an approved manatee protection plan Manatee Aggregation Area: No Manatee Protection Speed Zone: Yes, Slow Speed Minimum Wake within 300 feet of shore, Channel Exempt CONSIDERATION: $57,799.55, representing (1) $19,088.30 as the initial lease fee computed at the base rate of $0.1183 per square foot and including the initial 25 percent surcharge payment; and (2) $38,711.25 for the severance of sovereign material computed at the rate of $2.25 per cubic yard pursuant to section 18-21.011(3)(a)2, F.A.C. Sales tax will be assessed pursuant to section 212.031, F.S., if applicable. STAFF REMARKS: The applicant is proposing to construct a commercial/industrial docking facility to be used in conjunction with a proposed upland marine contracting company. Wood-Hopkins Marine Contracting Company specializes in building bridges, constructing roll-on/roll-off facilities, and the repair and maintenance of vessels, along with other related marine contracting activities. Proposed upland activities include the construction of two buildings, a parking lot, an access road, and rail construction access. Activities on sovereignty submerged lands include the construction of 495 linear feet of bulkhead at the approximate MHWL, the dredging of 2.53 acres of river bottom, and the installation of a 350-foot-long by 75-foot-wide concrete dock. The applicant is proposing to dredge 17,205 cubic yards of sovereign material to create water depths sufficient for mooring tugboats and barges. Berths (mooring and maneuvering areas) will be dredged to a depth of -20 feet NGVD. Depths currently range from +6 feet NGVD at the proposed bulkhead location to -20 feet NGVD at the terminus of the proposed dock. The spoil will be used for backfill landward of the proposed bulkhead. Wood-Hopkins Contracting Company, a subsidiary of the applicant, was issued permits (Nos. 16-16318-2E and 16-16319-2E) from the former Department of Environmental Regulation (DER) for the construction of a similar project on December 9, 1979 and July 27, 1979, respectively. A sovereignty submerged lands lease (No. 160163182) was approved by the former Department of Natural Resources (DNR) on December 17, 1979, that authorized the preemption of 53,702 square feet of sovereignty submerged lands. However, the construction was delayed, the permits expired, and the sovereignty submerged lands lease was cancelled on December 7, 1988. Board of Trustees Agenda – October 24, 2000 Page Fourteen
****************************************************************************** Item 9, cont. The applicant submitted a new DER permit application for the current proposed project on November 16, 1992. The DNR began to receive preliminary submerged lands lease information from the applicant on January 26, 1993. On February 24, 1993, the applicant received a letter from the Department of Community Affairs (DCA) advising that the applicant’s property, a 37-acre parcel including the project site, was within the Blount Island/Dames Point Areawide Development of Regional Impact (DRI) proposed by the City of Jacksonville (City) with the Jacksonville Port Authority (JPA) serving as agent for the City. An Application for Development Approval (ADA) had been filed and was pending review and adoption by the City Council. Pursuant to section 380.06(5), F.S., no development of any area covered by the Blount Island/Dames Point Areawide ADA could be undertaken until the development order for that project became effective or an agreement with DCA was established. The submerged lands lease file was placed in an "inactive" status on May 24, 1993 until the DRI review could be completed and submerged lands lease surveys submitted. The DEP wetland resource permit for the current proposed project was issued to Wood-Hopkins Contracting Company on June 30, 1994. On June 16, 1999, the permit was modified to extend the term of the permit from five years to ten years. The permit was transferred to the applicant on July 7, 1999. The applicant received a "Clearance Letter" from DCA on February 14, 2000 indicating that the Wood-Hopkins development is not required to undergo DRI review. On April 24, 2000, the permit was modified to relocate the proposed dock 25 feet to the north in order to provide a 25-foot setback of the lease boundary from the south riparian line. The DEP modified wetland resource permit requires sewage pumpout facilities, prohibits liveaboards, and prohibits over-water fueling facilities. The recommendations of the Florida Fish and Wildlife Conservation Commission (FFWCC), Bureau of Protected Species Management, regarding protection of manatees have been addressed in the specific conditions of the wetland resource permit and as special conditions of the lease. In addition, Duval County has adopted and implemented a manatee protection plan that has been approved by the FFWCC. The FFWCC has determined that the proposed project is consistent with the plan. There are no seagrasses or other significant submerged biological resources at the site. The project was noticed pursuant to section 253.115, F.S., and five objections were received. The main objection concerned potential erosion as the result of the dredging and from potential heavy water traffic. Other concerns included noise pollution, depreciation of upland property values, and traffic. It is staff’s opinion that the erosion concerns due to increased water traffic are unwarranted. There will be very little increase in commercial river traffic, as the barges/tugboats will either be moored in front of the applicant’s property or at the job site. Given the nature of the applicant’s business, movement of the vessels may be weeks or even months apart. It is staff’s opinion that the remaining issues should be addressed by the appropriate local government agency regulating upland property zoning. However, the applicant has designed the proposed project so as to minimize any interference with the neighboring community. It is proposed to construct a main entry road to the property that will alleviate traffic on the neighborhood roads. In addition, the applicant has designed a landscaped buffer zone on its property to further ensure adequate protection for the community. A local government comprehensive plan has been adopted for this area pursuant to section 163.3167, F.S.; however, the Department of Community Affairs (DCA) determined that the plan was not in compliance. In accordance with the compliance agreement between DCA and the local government, an amendment has been adopted which brought the plan into compliance. The
Board of Trustees Agenda – October 24, 2000 Substitute Page Fifteen
****************************************************************************** Item 9, cont. proposed action is consistent with the adopted plan as amended according to a letter received from the City’s Planning and Development Department. RECOMMEND DEFERRAL ****************************************************************************** Substitute Item 10 L. I. Smith Lease DEFERRED FROM THE OCTOBER 10, 2000 AGENDA REQUEST: Consideration of an application for (1) a five-year sovereignty submerged lands lease containing 35,315 square feet, more or less, for a proposed commercial docking facility; and (2) authorization for the placement of 114 cubic yards of riprap. COUNTY: Collier Lease No. 111990189
APPLICANT: L. I. Smith, Trustee LOCATION: Sections 14 and 15, Township 53 South, Range 29 East, in the Barron River, Class II waters, within the local jurisdiction of the city of Everglades City Aquatic Preserve: No Outstanding Florida Waters: No Designated Manatee County: Yes, with an approved manatee protection plan Manatee Aggregation Area: No Manatee Protection Speed Zone: Yes, idle speed zone CONSIDERATION: $5,222.21 as the initial lease fee computed at the base rate of $0.1183 per square foot, and including the initial 25 percent surcharge payment. Sales tax will be assessed pursuant to section 212.031, F.S., if applicable. The lease fee may be adjusted based on six percent of the annual rental value pursuant to section 18-21.011(1)(a)1, F.A.C. STAFF REMARKS: The applicant is proposing to (1) construct a 45-slip commercial docking facility; and (2) install 114 cubic yards of riprap along the applicant’s seawall in the Barron River. The docking facility will be used for fishing guide boats, sightseeing boats, and transient private recreational boats using the proposed upland restaurant and hotel, the upland fueling facility or sewage pumpout facility. The docking facility will consist of a 769-foot-long by 8-foot-wide shore-parallel dock, five 30-foot-long by 4-foot-wide finger piers perpendicular to the shore-parallel dock designating ten of the slips, three 20-foot-long by 4-foot-wide finger piers perpendicular to the shore-parallel dock designating five of the slips, one 31-foot-long by 4-foot-wide access dock, one 33-foot-long by 4-foot-wide access dock, and one 34-foot-long by 4-foot-wide access dock. The remaining slips will be 34 feet long and are also intended to be perpendicular to the shore-parallel dock, but these slips will not have finger piers. Vessels in these slips will be moored using "frog hooks" attached to the dock and the stern of the vessels. Based on the approximate 480 linear feet of dock at this portion of the facility, and estimating that boats will require an approximate 15-foot-wide berth, a maximum of 32 vessels could moor at this location. However, a special lease condition will limit the number of slips to a maximum of 45 to be consistent with the wetland resource permit issued by the Department of Environmental Protection (DEP). Water depth in the area of the proposed docks ranges from -3 feet NGVD to -7.6 feet NGVD. There are no significant benthic resources such as seagrasses in the area of the proposed docking facility. Board of Trustees Agenda – October 24, 2000 Substitute Page Sixteen
****************************************************************************** Substitute Item 10, cont. The riparian upland property is currently undeveloped. Various commercial uses have been approved for the site pursuant to local zoning. The applicant indicates that the currently proposed upland development plan includes a 62-unit hotel with 25 rental cottages, a restaurant, a gift shop, and a ship’s store. However, final development plans and a stormwater permit have not been approved for the upland development. Although the currently proposed upland uses do not include dry boat storage, Save the Manatee Club, Inc., has expressed concern about potential adverse impacts to manatees from additional boat traffic that could be generated by upland dry boat storage at the site. A standard lease condition in all sovereignty submerged lands leases states that the docking facility will be used for a specific upland use. Another standard lease condition in all sovereignty submerged lands leases states that the lessee will not change or add to the approved leased premises or change the type of riparian upland use without first obtaining a regulatory permit, if applicable, and written authorization from the Board of Trustees. Staff is of the opinion that these conditions will ensure that there will be no change in planned use of the docking facility without prior Board of Trustees’ consideration. However, to further address the concern expressed by Save the Manatee Club, Inc., a special lease condition has been modified to clearly require that any request by the lessee to use sovereignty submerged lands in conjunction with upland boat storage at the site will require prior consideration by the Board of Trustees. The proposed project has been noticed pursuant to section 253.115, F.S. Fifteen property owners were specifically noticed and 14 objections were received by July 29, 2000, the end of the comment period. Four additional objections were received after the comment period. One of the objections was from the Save the Manatee Club, Inc. The substance of the objections received pertained to: (1) potential navigational hazards from the waterward extension of the docking facility, use of the docking facility by novice boaters, and increased boat traffic; (2) potential adverse impacts to manatees; (3) infringement upon adjacent riparian rights; and (4) the potential for the docks to break away and damage upstream properties in a hurricane. The applicant responded to these concerns as follows: (1) the docking facility will not extend past the existing channel marker #34, reflectors will be installed on the outermost portion of the docking facility, and there are plans for three finger piers closest to the channel marker to be shortened from 30 feet to 20 feet. The project has been previously permitted by the Army Corps of Engineers. The applicant has obtained a letter from the Florida Marine Patrol stating that the project will not interfere with navigation. Also, the entire Barron River is an idle speed zone; (2) the proposed docking facility is consistent with the manatee protection plan adopted and implemented by Collier County and approved by the Florida Fish and Wildlife Conservation Commission (FFWCC), and the applicant will comply with standard FFWCC conditions; (3) the applicant has provided a survey and legal description prepared by a professional land surveyor showing that the proposed docking facility will be located within the applicant’s riparian area; and (4) the potential for docks breaking away during a hurricane is eliminated by use of concrete piles that will be driven 12 to 15 feet into the river bottom. Staff is of the opinion that the applicant has adequately addressed the concerns raised by the objections received. Subsequent to the applicant’s response to these concerns, one of the objectors raised concerns about the location of the proposed fueling facility near the mouth of Tarpon Creek and potential future dock construction in Tarpon Creek. The wetland resource permit issued by the DEP has authorized this activity. The sovereignty submerged lands lease will authorize the fueling facility. In response to the concern about the location of the proposed fueling facility, the applicant proposes to modify the wetland resource permit by locating that facility at least 100 feet away from the mouth of Tarpon Creek. Therefore, a special approval condition has been included to require the applicant to obtain the modified permit prior to receipt of the sovereignty submerged lands lease. Regarding future dock construction in Tarpon Creek, the applicant has agreed to place a proprietary deed of conservation easement over it’s Tarpon Creek shoreline to preclude future dock construction in the creek from the applicant’s shoreline. This has been addressed as a special approval condition. Board of Trustees Agenda – October 24, 2000 Substitute Page Seventeen
****************************************************************************** Substitute Item 10, cont. Regarding navigation, the lease area will extend to within ten feet of the marked navigation channel (channel marker no. 34, red). However, the applicant has obtained recent letters from the FFWCC, Division of Law Enforcement, Bureau of Marine Enforcement, and the U.S. Coast Guard stating that the proposed project will not be a navigational hazard. The DEP issued a wetland resource permit (No. 111990189) on October 26, 1992. The DEP issued a permit modification (Nos. 113041185 and 11-0128890-001) on January 9, 1998 to extend the expiration date to October 26, 2002. The permit authorizes fueling and sewage pumpout facilities but prohibits liveaboards. The fueling and sewage pumpout facilities will be located on the applicant’s uplands near the confluence of Tarpon Creek and the Barron River. Recommendations from the FFWCC, Bureau of Protected Species Management, regarding protection of manatees have been addressed as a specific condition in the wetland resource permit and special lease conditions. Additionally, Collier County has adopted and implemented a manatee protection plan that has been approved by the FFWCC. The FFWCC has determined that the proposed project appears to be consistent with that plan and is not expected to have adverse impacts on manatees, if specific manatee protection conditions are made part of the lease. This application could be processed under delegation of authority pursuant to section 18-21.0051(2)(b), F.A.C. However, because of the number of objections received in response to the noticing, this proposed project is being brought before the Board of Trustees for consideration. A local government comprehensive plan has been adopted for this area pursuant to section 163.3167, F.S.; however, the Department of Community Affairs (DCA) determined that the plan was not in compliance. In accordance with the compliance agreement between the DCA and the local government, an amendment has been adopted which brought the plan into compliance. The proposed action is consistent with the adopted plan as amended according to a letter received from the city of Everglades City. (See Attachment 2, Pages 1-11, submitted with the October 10, 2000 agenda.) RECOMMEND APPROVAL SUBJECT TO THE SPECIAL APPROVAL CONDITIONS, THE SPECIAL LEASE CONDITIONS AND PAYMENT OF $5,222.21 ****************************************************************************** Substitute Item 11 Sarasota Yacht Club Recommended Consolidated Intent DEFERRED FROM THE JULY 25, 2000 AGENDA DEFERRED FROM THE SEPTEMBER 12, 2000 AGENDA DEFERRED FROM THE SEPTEMBER 26, 2000 AGENDA REQUEST: Consideration of an application for a modification of a five-year sovereignty submerged lands lease for an existing private yacht club docking facility to increase the number of wetslips from 84 to 108 and increase the preempted area from 182,086 square feet to 244,137 square feet, more or less. COUNTY: Sarasota Lease No. 580578403 Application No. 58-01620873-001 Board of Trustees Agenda – October 24, 2000 Substitute Page Eighteen
****************************************************************************** Substitute Item 11, cont. APPLICANT: Sarasota Yacht Club
LOCATION: Section 26, Township 36 South, Ranges 17 East, in Sarasota Bay, Class II Waters, within the local jurisdiction of the city of Sarasota Aquatic Preserve: No Outstanding Florida Waters: Yes Designated Manatee County: Yes, without an approved manatee protection plan Manatee Aggregation Area: No Manatee Protection Speed Zone: Yes, Idle speed/no wake within the channel CONSIDERATION: $30,716.57 as the initial lease fee computed at the base rate of $0.1183 per square foot, including the 25 percent surcharge payment for the additional area. Sales tax will be assessed pursuant to section 212.031, F.S., if applicable. STAFF REMARKS: In accordance with rules adopted pursuant to sections 373.427(2) and 253.77(2), F.S., this "Recommended Consolidated Intent" contains a recommendation for issuance of both the permit required under part IV of chapter 373, F.S., and the authorization to use sovereignty submerged lands under chapter 253, F.S. The Board of Trustees is requested to act on those aspects of the activity which require authorization to use sovereignty submerged lands. If the Board of Trustees approves the request to use sovereignty submerged lands and the activity also qualifies for a permit, the Department of Environmental Protection (DEP) will issue a "Consolidated Notice of Intent to Issue" that will contain general and specific conditions. If the Board of Trustees denies the use of sovereignty submerged lands, whether or not the activity qualifies for a permit, DEP will issue a "Consolidated Notice of Denial." The lessee is proposing to expand the existing 84-slip, private yacht club docking facility by constructing 24 additional boat slips, thereby creating a 108-slip facility. The initial lease was approved by the Board of Trustees on October 18, 1983. The most recent modification to the existing sovereignty submerged lands lease, that was approved under delegation of authority by the DEP on February 11, 1997, incorporated 142,986 square feet of registered, grandfathered structures into the existing 39,100-square-foot lease area for a total lease area of 182,086 square feet. This proposed addition is 62,051 square feet, for a new total lease area of 244,137 square feet.
The upland facility consists of a clubhouse and dining room. The existing docking facility contains three docks extending an average of 280 feet into the waterbody. The proposed construction over sovereignty submerged lands includes: three 97-foot-long by 10-foot-wide walkout extensions from the existing docks; three 120-foot-long by 10-foot-wide terminal "T" docks at the end of each access dock; and two 40-foot-long by 3-foot-wide catwalks at each dock. The proposed project is not anticipated to have any adverse impact on benthic resources. In addition, the water depths at the site of the proposed expansion are greater than -11 feet at mean low water. The types of vessels using the facility are recreational, ranging from 45 to 60 feet in length with a 4-foot draft. The Board of Trustees reviewed this project proposal on July 25, 2000. At that Cabinet meeting, concerns were expressed over cumulative impacts to manatees from marinas and other types of multi-slip docking facilities within the 13 coastal counties (including Sarasota County) that were to have developed and adopted comprehensive manatee protection plans Board of Trustees Agenda – October 24, 2000 Substitute Page Nineteen
****************************************************************************** Substitute Item 11, cont. (MPP). At the July Cabinet meeting, the subject item was deferred until the status of the MPP for Sarasota County and the other coastal counties could be assessed. At the September 12, 2000 Cabinet meeting, the Florida Fish and Wildlife Conservation Commission (FFWCC) presented a status report on the MPPs of the 13 coastal counties. Manatee Protection Plans consist of boat facility siting, habitat protection, education, speed zone, and law enforcement elements. While only 4 of the 13 counties have approved MPPs addressing each element, each of the counties has speed zone rules adopted by the FFWCC. The FFWCC recommended that future MPPs concentrate on boat facility siting, which has proved to be the most controversial element of the MPPs. According to a letter from the FFWCC dated October 5, 2000, countywide manatee protection speed zones were adopted for Sarasota County in 1992 with the posting of those zones completed in 1993. The FFWCC further stated: "Sarasota County has implemented various manatee education programs for county residents and visitors, but they have not made significant progress on marina siting or completing an MPP." The FFWCC had previously reported to the DEP that the County has recently taken steps to implement the boat facility siting element and anticipates that this element will be finalized within a year. Completion of the siting element will be a significant step in Sarasota County’s manatee protection planning. As a part of its routine review of applications for docking facilities and their anticipated impact on manatees and their habitat, the FFWCC stated in a memorandum to the DEP on December 30, 1999 that incorporation of the standard manatee protection construction conditions and a condition requiring manatee awareness and informational displays at the Sarasota Yacht Club facility would satisfy the statutory requirements for manatee protection. In a October 5, 2000 letter the FFWCC again reiterated no objection to the issuance of the lease modification, provided these measures were followed. The recommendations of the FFWCC have been addressed in the environmental resource permit. The DEP’s recommendation to the Board of Trustees on a proposed use of sovereign submerged lands is based on the project’s compliance with the sovereignty submerged lands statutes and rules. Because of staff’s finding that the proposed project meets all existing statutory and rule requirements along with the recommendations of the FFWCC for protection of manatees, staff believes that it is obligated to return this item to the Board of Trustees with a recommendation of approval. The DEP environmental resource permit also requires sewage pumpout facilities, prohibits liveaboards at the proposed slips, and authorizes fueling facilities. The proposed project is exempt from noticing pursuant to section 253.115(5)(i), F.S. A local government comprehensive plan has been adopted for this area by the city of Sarasota pursuant to section 163.3167, F.S.; however, the Department of Community Affairs (DCA) determined that the plan was not in compliance. In accordance with the compliance agreement between DCA and the local government, an amendment has been adopted which brought the plan into compliance. The proposed action is consistent with the adopted plan as amended according to a letter received from the city of Sarasota. (See Attachment 11, Pages 1-27) RECOMMEND DEFERRAL TO THE NOVEMBER 29, 2000 CABINET MEETING
Board of Trustees Agenda – October 24, 2000 Substitute Page Twenty
****************************************************************************** Substitute Item 12 John Buete Consent of Use/Lease REQUEST: Consideration of an application for a consent of use and a lease of state-owned lands adjacent to sovereignty submerged lands for a one-slip private residential single-family docking facility in conjunction with an existing upland private single-family residence. COUNTY: Collier BOT No. 110222005 ERP File No. 11-0158271-002 APPLICANT: John Buete LOCATION: Section 27, Township 52 South, Range 26 East, in Barfield Bay, Class II waters, within the local jurisdiction of the city of Marco Island Aquatic Preserve: No Outstanding Florida Waters: No Designated Manatee County: Yes, with an approved manatee protection plan Manatee Aggregation Area: No Manatee Protection Speed Zone: Yes
STAFF REMARKS: The applicant, a non-riparian land owner, is requesting authorization to construct a one-slip private residential single-family docking facility. The portion of the docking facility on sovereignty submerged lands would include a 4-foot-wide by 110-foot-long access dock with a 429-square-foot "U"-shaped terminal platform and boat lift. Pursuant to sections 18-21.005(1)(a)1 and 2, F.A.C., the form of authorization for this type of docking facility is a consent of use. In the 1960s, the Deltona Corporation (Deltona) began developing nearly 25,000 acres of property on and around Marco Island. Much of the land had been deeded by the Board of Trustees to Deltona’s predecessors as swamp and overflowed lands in the 1800’s and included large tracts of wetlands. In the mid-1970s a number of governmental and environmental groups began opposing Deltona’s vast development plans for this fragile environment. This resulted in protracted litigation involving six state cases, which involved the Department of Environmental Regulation (now DEP), Department of Veterans and Community Affairs (now DCA), Board of Trustees of the Internal Improvement Trust Fund, South Florida Water Management District, Collier County Board of County Commissioners, National Audubon Society, Florida Chapter of the Audubon Society, Collier County Conservancy (now The Conservancy of Southwest Florida), Environmental Defense Fund (now Environmental Defense), and the Florida Division of the Izaak Walton League, and two federal cases involving the U.S. Army Corps of Engineers. The history of this complex process is stated in more detail in the Stipulation for Dismissal and Settlement Agreement (Settlement) dated July 20, 1982, filed in Division of Administrative Hearings case numbers 79-2471, 80-683, and 80-1308R; and First District Court of Appeal case numbers XX-335, XX-336, and YY-76. In connection with the issuance of dredge and fill permits in the mid-seventies, the Board of Trustees had considered the "environmental, social, economic, legal and equitable issues involved in this . . .master planned community; and...based on the foregoing review, the [Board] reached an overall decision.... As part of that land use decision, the TIIF required Deltona to eliminate major portions of its property from future land development and to deed...land to the TIITF as a preservation area" (Settlement, page 6). Similarly, the U.S. Army Corps of Engineers (Corps) had considered Deltona’s application for dredge and fill permits and denied those in the "environmentally sensitive mangrove estuary" part of which was Barfield Bay (Settlement, page 7). The Department of Environmental Regulation refused to issue permits because, even after the Board of Trustees’ and the Corps’ modifications, the Board of Trustees Agenda – October 24, 2000 Substitute Page Twenty-one
****************************************************************************** Substitute Item 12, cont. application "still entailed the dredging and filling of some 2,500 acres of open water, mangrove swamps, and fresh water wetlands" (Settlement page 8). In 1982, all of the state parties reached a global settlement regarding the overall development of the property owned by Deltona in the Marco Island area. The Settlement recognized the interests of the public and Deltona, as well as the third-party purchasers who were adversely affected because Deltona could not deliver the lots it had promised them (Settlement, page 10). The Settlement provided that Deltona had specific "Development Areas" and that no development could occur outside those Development Areas" (Settlement, page 11-12). The purpose of the Settlement from the perspective of the governmental and environmental parties was to conserve and protect: the "unique and irreplaceable wetlands coastal estuarine system," which includes the major wading bird feeding habitat in southwest Florida, and supports the only major rookery in Southwest Florida; the vast wetlands adjoining the Rookery Bay National Marine Sanctuary; the thousands of acres of mangrove forests, which contribute to the estuarine food web; the major nursery area for shrimp and juvenile organisms of all description; the unique habitat for wildlife; and to protect and enhance the water quality of the adjacent bay areas (Settlement, pages 3, 9-10). This area includes Rookery Bay National Estuarine Research Reserve, Rookery Bay Aquatic Preserve, Collier Seminole State Park, and Big Cypress Swamp. Everglades National Park and Fakahatchee Strand State Preserve are nearby. It is evident from reading the Settlement in its entirety that the property conveyed to the Board of Trustees, including the parcels in Barfield Bay, was conveyed specifically for the purpose of preventing all future private development of those lands. The Board of Trustees approved the Settlement on July 20, 1982. Certain terms of the Settlement allowed Deltona to develop about 2,500 acres, and in return, Deltona would deed approximately 15,000 acres of wetlands and uplands to Collier County, the Board of Trustees, and other conservation entities. Deltona deeded some of the acreage in exchange for state permits, and the rest of it was to be exchanged on a value-for-value basis. The final exchange of 13,175 acres was approved by the Board of Trustees on March 20, 1984 (Item 33, attached). In that exchange, Deltona conveyed title to the lands in the "Barfield Bay Preservation Area," which includes the waterward portion of the applicant’s lot, to the Board of Trustees. On July 19, 1990, the Board of Trustees entered into a 50-year lease with the former Department of Natural Resources, Division of Marine Resources, Bureau of Coastal and Aquatic Managed Areas (CAMA), for the conservation and protection of the natural resources of these public lands (plus many others acquired by the Board of Trustees since 1978). These lands were to be managed as part of Rookery Bay National Estuarine Research Reserve (Rookery Bay Reserve). The lease to CAMA states in paragraph 4 that it "shall manage the leased premises only for the conservation and protection of natural and historical resources and resource based public outdoor recreation which is compatible with the conservation and protection of these public lands...along with other related uses necessary for the accomplishment of this purpose as designated in the Management Plan...." (Lease, page 2). Further, the program goals of the Rookery Bay Reserve Management Plan (Management Plan) are to establish adequate long-term state control of key lands and water resources, and essential buffer areas necessary for protection of resources; restore and maintain significant representative habitat; and minimize adverse impacts on resources…" (Management Plan, page 40). The Management Plan lists a significant number of threatened and endangered species in Appendix 6 (Management Plan, Appendix 6; page 36), as well as 16 species of fish and shellfish (Management Plan, page 51). The resource management issues of concern expressed in the Management Plan include increased boat traffic, boat-related disturbances at wading bird rookeries, increased boat-related deaths of endangered West Indian manatee, and increased Board of Trustees Agenda – October 24, 2000 Substitute Page Twenty-two
****************************************************************************** Substitute Item 12, cont. prop-dredging with resultant damage to submerged vegetation and habitats. The Management Plan states "[t]he cumulative impacts of these activities can be devastating to estuarine productivity." On September 5, 2000, Rookery Bay Reserve staff commented on this application, stating that "…the site was intended to be preserved because it provides important mangrove wetland habitats that contribute to the estuarine food web, including shrimp and marine juvenile organisms and other wildlife…. Staff should consider the precedent established by any proposed change in current use of these wetlands. If the agency recommends approval of a lease or sale of lands within the Deltona Settlement Agreement to enable construction of a dock or other access, the cumulative impacts associated with anticipated additional docks from adjacent landowners will have significant negative impacts on this ecosystem." The "Deltona Lands" purposely separated many Deltona residential lots which were not yet sold to third parties from direct ownership on Barfield Bay. There are approximately 70 lots very near Barfield Bay that are not contiguous to sovereignty submerged lands because of the conveyance of the Deltona Lands to the Board of Trustees as part of the Settlement. These lots are referred to by staff as "A lots." The owners of "A lots" do not have riparian rights to Barfield Bay, and do not qualify for a consent of use by the Board of Trustees under section 18-21.004(3)(b), F.A.C. The applicant’s lot is an "A lot" and is separated from sovereignty submerged lands by state-owned lands. This was a matter of public record when the applicant purchased his lot in 1996. The prior conveyance from Deltona to the Board of Trustees is explicitly referenced in the deed to the applicant’s lot. The remaining residential lots along Barfield Bay are referred to as "B lots." These lots had already been conveyed to third parties by Deltona at the time of the Settlement. These lots are riparian to sovereignty submerged lands and could qualify for consent to build docks. There are approximately 20 waterfront "B lots." "B lots" with docks are on either side of the applicant’s lot. When advised by staff that approval of a dock was not possible because he did not have a sufficient title interest in the adjacent uplands, the applicant then requested that the Division of State Lands issue a lease over the state-owned lands (Deltona Lands) between his lot and sovereignty submerged lands. On June 9, 2000, the Division of State Lands denied the applicant’s request because: (1) the land is already under lease to Rookery Bay Reserve; and (2) an upland lease to provide the applicant riparian rights to sovereignty submerged lands for the purpose of building a dock "would be contrary to the terms, intent and spirit of [the Deltona] settlement agreement." An agenda item similar to this item involving management of Barfield Bay for the purpose of allowing docks was brought to the Board of Trustees on June 27, 1989. That item was withdrawn because it was determined that the owners of "A lots" on Barfield Bay did not have riparian rights and did not qualify to build docks. Such applications were thereafter denied. The applicant states that the proposed denial is unfair because there are other docks near his lot in Barfield Bay. Those docks are on "B lots" which, as noted above, were not separated from Barfield Bay by conveyance to the Board of Trustees as part of the Settlement of the Deltona litigation. However, a shoreline inventory conducted by DEP in May 2000 revealed that five small docks without boats exist on sovereignty submerged lands waterward of "A lots" in the north end of Barfield Bay. These docks were constructed without the authorization of the Board of Trustees. DEP is currently in the process of taking enforcement action to remove these structures and to institute other enforcement remedies, as warranted. Board of Trustees Agenda – October 24, 2000 Substitute Page Twenty-three
****************************************************************************** Substitute Item 12, cont. The proposed docking facility qualifies for a regulatory Noticed General Environmental Resource Permit pursuant to section 62-341.427(1)(a), F.A.C. Regulatory noticed general permits are not "linked" to proprietary authorizations pursuant to chapters 253 and 373, F.S. Recommendations from the Florida Fish and Wildlife Conservation Commission regarding manatee protection were not requested for this proposed project because such comments are typically not requested for private residential single-family docking facilities. Consent of use applications are not required to be noticed pursuant to section 253.115, F.S. This application could be processed under delegation of authority pursuant to section 18-21.0051(2)(b), F.A.C. However, because the Deltona Settlement and Deltona Lands affect a significant number of interested parties, this proposed project is being brought before the Board of Trustees for consideration. Approval of this application would have a detrimental effect on a wide variety of Board of Trustees’ land and resource interests. Many non-riparian owners throughout the state would likely request special approval from the Board of Trustees to lease or otherwise acquire public waterfront lands held by the Board of Trustees to obtain the riparian rights necessary to build additional structures on sovereignty submerged lands. Approval of this application would violate the Board of Trustees’ lease with CAMA, which states that there would be undesirable environmental effects as well as cumulative effects from more construction adjacent to "A lots." If this application was approved, the Board of Trustees would have no basis to deny docks to the other 70 "A lot" owners on Barfield Bay. Modification of the Settlement requires the consent of all parties (Settlement, page 21). Approval of the application would breach the Deltona Settlement and likely subject the Board of Trustees to litigation. In 1999, a similar DEP permit to trim mangroves at the end of the Marco Island Airport, which had not been approved by all parties to the Settlement, resulted in a claim by The Conservancy of Southwest Florida that DEP had violated the Settlement. That issue was worked out among the parties, but a lawsuit was threatened. The Board of Trustees’ policy is that an applicant must be in compliance with all Board of Trustees’ rules prior to issuance of further approvals. This applicant has a pending DEP enforcement action for illegal trimming of 8,820 square feet of large, old growth mangroves on state-owned lands. For the foregoing reasons, approval of this application would be contrary to the public interest. (See Attachment 12, Pages 1-80) RECOMMEND WITHDRAWAL ****************************************************************************** |
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