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AGENDA BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND FEBRUARY 6, 2001 **************************************************** Item 1 Brickell Key Marina/Swire Properties Recommended Consolidated Intent DEFERRED FROM THE JULY 25, 2000 AGENDA DEFERRED FROM THE SEPTEMBER 12, 2000 AGENDA DEFERRED FROM THE SEPTEMBER 26, 2000 AGENDA DEFERRED FROM THE NOVEMBER 29, 2000 AGENDA REQUEST: Consideration of an application for a five-year sovereignty submerged lands lease containing 204,861 square feet, more or less, for a proposed private use, access restricted commercial marina. COUNTY: Miami-Dade Application No. 13-0132744-001 APPLICANT: Swire Properties, Inc. d/b/a Brickell Key Marina LOCATION: Section 07, Township 54 South, Range 42 East, in Biscayne Bay, Class III Outstanding Florida Waters, within the local jurisdiction of the city of Miami Aquatic Preserve: Biscayne Bay, Resource Protection Area 1 Designated Manatee County: Yes, with an approved manatee protection plan Manatee Aggregation Area: No Manatee Protection Speed Zone: Yes, slow speed zone Outstanding Florida Waters: Yes, Class III 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 denial 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 applicant is proposing to construct a 112-slip commercial marina facility on the western shoreline of Brickell Key Island, located just south of the mouth of the Miami River in downtown Miami. The lease area, 204,861 square feet, will be divided into three separate parcels, with two parcels located north of an 840-foot-long by 66-foot-wide private bridge connecting the island to the mainland, and one parcel on the south side of the bridge. Parcel One is the northernmost parcel and contains 10,301 square feet. Parcel Two is located immediately north of the bridge and contains 102,910 square feet. Parcel Three is located immediately south of the bridge and contains 91,560 square feet. The applicant owns 4,525 linear feet of shoreline on Brickell Key as verified by Dade County tax records. The marina will be used in conjunction with upland private residential units, a hotel, and some commercial activities. The applicant proposes to limit 46 of the 106 private slips for powerboats, with remaining private slips for sailboat mooring only. Six slips in Parcel One will be dedicated to marine law enforcement vessels. Each slip is proposed to have a wastewater pumpout, connected to the island’s collection system. The applicant describes the marina as a "docks only" facility. No fueling or boat repair facilities, liveaboards, or other such activities are proposed. The applicant’s consultant has stated that the marina will be solely for the use of the island’s residents and guests of the hotel. Public access to the island is
Board of Trustees
*************************************************** Item 1, cont. limited. Vehicle or pedestrian access to the island is confined to the bridge that leads to a booth staffed by a security guard. During visits to the island, staff has noted that there is minimal public parking available. The application states that a water taxi also stops at the island. Currently, the upland uses are a combination of private residential units, a hotel, offices, and commercial retail activities. A 3.5-acre public park is proposed near the marina on the west side of the island pursuant to a 1975 development order. The applicant proposes to retain approximately two feet of the riparian shoreline along the top of a seawall surrounding the island. In addition, a 20- to 30- foot-wide strip of upland located adjacent to and upland of the applicant’s two-foot strip will be conveyed to the City of Miami (City) for a public park. This conveyance is pending. A wetland resource permit for a 53-slip marina was originally issued by the former Department of Environmental Regulation on May 28, 1985. A concurrent application for a sovereignty submerged lands lease was submitted on November 2, 1982, to the former Department of Natural Resources for processing. Because of an inability to adequately address the rule requirements of "extreme hardship" and "public interest", this application was subsequently deactivated. The applicant requested that the lease file be reactivated on January 25, 1989. The application was, however, again deactivated on September 25, 1990, because of the inability to meet the "extreme hardship" provisions of the rule. The proposed project will be located on a bridged coastal island and is, therefore, not subject to the coastal island rule. The proposed project will be located in Biscayne Bay Aquatic Preserve, established under section 258.397, F.S. As such, activities in this aquatic preserve must be consistent with the provisions of the statutes and rules governing the preserve. Section 258.397(3)(a), F.S., states that, "No further sale, transfer, or lease of sovereignty submerged lands in the preserve shall be approved or consummated by the board, except upon a showing of extreme hardship on the part of the applicant and a determination by the board that such sale, transfer, or lease is in the public interest." In addition, section 18-18.006(3)(b), F.A.C., states, "There shall be no further use, sale, lease, or transfer of interests in sovereignty submerged lands unless an applicant affirmatively demonstrates sufficient facts to support a finding by the board that: (i) an extreme hardship exists for the applicant at the time the application is filed; (ii) the use, sale, lease, or transfer of interest and the project planned in conjunction with the use, sale, lease or transfer of interest is in the public interest; and (iii) the project planned in conjunction with the use, sale, lease, or transfer of interest is consistent with these rules and management plans when developed for the preserve." The purpose of the facility is to provide dockage exclusively for residents of the island and for hotel guests. The entire facility will be owned, operated, and maintained by Swire Properties, not the City. As such, the marina is an amenity associated with an upland, access-restricted, commercial activity; owned, operated, and maintained by a private entity; with little, if any, access for the public at large. Section 18-18.004(7), F.A.C., clearly defines the project to be a private, "commercial/industrial dock" marina. Staff is of the opinion that the proposed project contradicts the requirements of section 258.397(3)(a), F.S., and section 18-18.006(3)(b), F.A.C., which both state that leases in the Biscayne Bay Aquatic Preserve must meet the test of extreme hardship, as defined in section 18-18.004(11), F.A.C. The rule allows some latitude for projects which are a public necessity, when such projects are necessary to protect public health and safety and there is no alternative.
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*************************************************** Item 1, cont. The applicant asserts that the project meets the extreme hardship test because the City is proposed to be co-lessee, which makes the marina a public project, and the City has endorsed the marina as part of a downtown revitalization, claiming it to be a public necessity. However, based on the submitted information, the City is not qualified to be a co-lessee since the City does not have the requisite riparian upland property interest required by statute and rule. After conveyance of the park property, the City still will not be a riparian upland owner, as the applicant will retain a two-foot-wide strip of property along the upland edge of the seawall. The applicant has also not shown public necessity, pursuant to section 18-18.004(22), F.A.C., by demonstrating how this access-restricted commercial marina is required for the protection of the health and safety of the public. Furthermore, the applicant has not provided evidence that no other reasonable alternatives exist. Absent the demonstration of public necessity, the applicant has not provided any other demonstration of how the project meets the test of extreme hardship. Section 18-18.006(3)(b), F.A.C., requires that a lease in Biscayne Bay must be in the public interest, pursuant to section 18-18.004(20), F.A.C., and defines such as demonstrating environmental, social, and economic benefits to the public at large, which would clearly exceed all similar cost. Application of the balancing test results in the costs of the proposed marina exceeding the benefits. Costs include: private preemption of almost five acres of public land from public use; increased boat traffic congestion in and near a navigation channel; shading impacts to seagrass, macroalgal habitat, other hard bottom benthic communties; and potential impacts to the West Indian manatee. The Florida Fish and Wildlife Conservation Commission (FFWCC) has recommended against a commercial or public marina at the site. Minimal benefits are expected. The primary benefit is a proposed conservation easement to extend along 4,106 linear feet of the island shoreline. However, this conservation easement is of limited value, since it is not likely that additional docking activities or facilities could be approved along the island. The applicant proposes to offset shading impacts by providing artificial substrate for new algal growth in another site within the project area. Staff is of the opinion that this project is not in the public interest. This item was deferred from the July 25, 2000, September 12, 2000, and September 26, 2000, agendas in order to give the applicant’s agent time to refute several of staff’s points in the item. One point which has been specifically mentioned is the agent’s opinion that Brickell Key is the ideal site for a marina in Miami-Dade County, countering the comments made by the FFWCC, Save the Manatee Club (SMC), and Miami-Dade County Department of Environmental Resource Management (DERM). However, Brickell Key is not one of the sites recommended for a marina by the approved Miami-Dade County Manatee Protection Plan (MPP). Since the original drafting of the item, DEP has not received any submittals from the agent or consultant to address any disputed issues or request modification of the item. In summary, staff’s opinion is that the proposed project will have no net public benefit and is not itself a public project, and meets neither the extreme hardship nor the public interest tests necessary for approval. An objection to the project was received from Friends of the Everglades on August 14, 1998. The objection stated that the project did not meet the "extreme hardship" criteria of section 18-18.006(3)(b), F.A.C., and that the City did not have sufficient interest in the uplands to be considered a co-applicant or co-lessee. A second objection to the project, in the form of a copy of a letter from the SMC to the United States Army Corps of Engineers, was received on December 21, 1998. The objection stated
Board of Trustees *************************************************** Item 1, cont. that the project was not consistent with the Dade County MPP, that the project was not in the public interest, and that the mitigation measures proposed at that time were insufficient to offset potential manatee impacts. A third objection to the project was received from Miami-Dade County DERM on September 14, 1998. The objection stated that the project would adversely impact manatees and was inconsistent with the Miami-Dade County MPP. A DEP environmental resource permit application has been processed concurrently with the lease application. Both applications were deemed complete on May 5, 2000. Based on staff’s recommendation to the Board of Trustees that the lease application be denied, and the concerns about the use of the facility and manatee impacts, staff will also recommend denial of the environmental resource permit application. A local government comprehensive plan has been adopted for this area pursuant to section 163.3167, F.S. The Department of Community Affairs determined that the plan is in compliance. The City has sent letters supporting the project. However, no local permits have been issued for the project. RECOMMEND DEFERRAL TO THE MARCH 13, 2001 CABINET MEETING
*************************************************** Substitute Item 2 Becton Springs Consent of Use REQUEST: Consideration of an application for a sovereignty submerged lands consent of use containing approximately 37.5 square feet, more or less, for a proposed wooden slat stream diversion structure. COUNTY: Washington Application No. 67-0148551-001-DF APPLICANT: Harold W. & Linda Creamer Vickers and Rueben A. & Lorrie A. Laurel a/k/a Becton Springs LOCATION: Section 24, Township 03 North, Range 15 West, in Becton Springs, Class III Waters, near the town of Bonifay, within the local jurisdiction of Washington County Aquatic Preserve: No Outstanding Florida Waters: No Designated Manatee County: No Manatee Aggregation Area: No Manatee Protection Speed Zone: No CONSIDERATION: No payment is required. STAFF REMARKS: The applicant is proposing to construct a 410-foot-long by 0.75-foot-wide wooden slat diversion structure, approximately 50 feet of which is located on sovereignty submerged lands, and excavate a 120-foot-long by 25-foot-wide by –1-foot-deep stream by-pass channel, not on sovereign submerged lands, adjacent to Becton Springs. The project is
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*************************************************** Substitute Item 2, cont. located in central Washington County, south of Interstate 10 on State Road 79, south of Bonifay. Currently, Becton Springs and Holmes Creek are connected via a secondary flowway which carries turbid water, sediments, tannins and other organics into the spring area, resulting in diminished water clarity. The diversion structure and by-pass channel are proposed to prevent debris and turbid water from Holmes Creek from entering the springhead area during periods of high water flow. Diversion of the secondary stream into the proposed by-pass channel will not reduce the flow of water into Becton Springs, nor is it expected to impede navigation, and has been designed to allow access by the same-sized boats that may use the existing stream channel. The Department of Environmental Protection (DEP) issued an Intent to Issue and a Draft Permit on December 21, 1999, to construct the 410-foot-long by 0.75-foot-wide wooden slat diversion structure, and to excavate a 120-foot-long by 25-foot-wide by –1-foot-deep stream by-pass channel. The springhead, stream, and Holmes Creek are considered to be sovereignty submerged lands. The by-pass will not be located on sovereignty submerged lands. DEP has received letters of opposition from the public and the Washington County Board of County Commissioners. Their concerns include: blocking of public access, flooding of private property, shoaling and erosion within Holmes Creek, water quality impacts, the stability of the structure, and impacts to the wetlands. The Washington County Board of County Commissioners has petitioned for an administrative hearing for both the water diversion structure and the by-pass channel, citing all of the above referenced reasons. Litigation is still pending on the administrative hearing. The project has been reviewed by DEP’s hydrographic section and Washington County’s concerns were addressed in that review. The flowway that the diversion structure is proposed to cross acts as a floodplain and is located off the main channel of the creek. Therefore, DEP is not concerned that the structure will cause any upstream flooding, erosion or shoaling. The hydrographic section has expressed concern that the structure may potentially fail during flood stages of the creek. The permit has addressed these concerns by adding a special condition that if the diversion structure is damaged by flooding, debris or other events, DEP shall be contacted within 48 hours of the event, and the cause of failure shall be determined. DEP shall also determine if the structure can be rebuilt or if design changes are necessary. Several individual homeowners and the Bay County Audubon Society have also expressed concerns about the project blocking public access to the springhead. A special permit condition has also been added which prohibits the applicant from constructing any additional structures, which would impede public access to the springhead. The springhead will be accessible via the southerly outflow from the springhead. The project was not required to be noticed, as the project is for a consent of use. A local government comprehensive plan has been adopted for this area pursuant to section 163.3167, F.S. The Department of Community Affairs determined that the plan is in compliance. The proposed action is consistent with the adopted plan according to a letter received from Washington County. (See Attachment 2, Pages 1-6) RECOMMEND DEFERRAL TO THE MARCH 13, 2001 CABINET MEETING ***************************************************
Board of Trustees
*************************************************** Substitute Item 3 Florida Forever Advisory Council Report REQUEST: Consideration of the first report of the Florida Forever Advisory Council. LOCATION: Statewide STAFF REMARKS: As required by section 259.0345(7), F.S., the Florida Forever Advisory Council (Council) submitted this report to the Secretary of the Department of Environmental Protection by December 15, 2000. The Secretary is then required to forward the report to the Board of Trustees for approval, and thereafter, to the "President of the Senate and the Speaker of the House of Representatives, prior to the beginning of the 2001 Regular Legislative Session, for review by the appropriate substantive legislative committees from which the Florida Forever Act originated, or its successor." The report condenses the 19 original legislative goals into eight objectives and 34 program performance measures (Appendix A of report). In general, the measures establish baselines and resource data layers for a variety of resource indicators, including: biodiversity; land, water and wetlands systems; water quantity; resource-based recreational and educational opportunities; archaeological and historical sites; forestlands; and urban open spaces. The Council plans to monitor these measures for a period of time before making recommendations on possible policy or funding shifts for the Florida Forever program. The measures adopted are identical or very similar to those adopted by the state’s Water Management Districts and by the Office of Program Policy Analysis and Governmental Accountability, an office of the Florida Legislature. The report also includes the Conservation Needs Assessment (Appendix B) developed by the Florida Natural Areas Inventory (FNAI). The Department of Environmental Protection (DEP) contracted with FNAI to develop this comprehensive resource analysis to establish baselines for as many of the Council’s measures as possible, to provide a methodology for tracking acquisitions as they occur, and to record program progress towards meeting goals. FNAI worked in conjunction with DEP’s many acquisition and resource data partners. Some of these same partners, as well as others, have also agreed to provide performance measurement data to DEP's Division of State Lands that FNAI is unable to provide at this time. Along with recommendations on program performance measures, the report also includes several observations and recommendations (body of report) of the Council: (1) land selection is not necessarily a science and requires some subjectivity; (2) multiplicity of goals is important; (3) waiting until more baseline data is available is appropriate before trying to establish any land acquisition targets; and (4) greater emphasis should be placed on providing public access to public lands. The Council, made up of seven gubernatorial appointees and two additional ad hoc members from the Legislature, met eight times during the later part of 1999 and throughout the year 2000. The Council received comments and information from the public at each of its meetings, which were predominantly held in Tallahassee and Jacksonville, but also included West Palm and Orlando. The Council is also required to provide reports in the following years: 2002, 2004, 2006 and 2008. (Report submitted separately.) RECOMMEND ACCEPTANCE
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Board of Trustees
*************************************************** Substitute Item 4 DEP Division of State Lands' Delegated Acquisition Procedures Implementation and Operational Efficiency Report/Chapter 259, F.S. REQUEST: Consideration of a status report on the operational efficiency and effectiveness of the chapter 259, F.S., acquisition program. APPLICANT: Department of Environmental Protection (DEP) LOCATION: Statewide STAFF REMARKS: At the June 22, 1999 Cabinet meeting, the Board of Trustees in an effort to expedite the acquisition process approved increased delegations of authority to DEP which are summarized as follows:
The Board of Trustees requested that DEP report back to them in the future with a status report on the implementation of these delegations and on the success of these strategies. When staff originally reported to the Board of Trustees in June 1999 the amount of time that a seller was in the process from appraisal to closing averaged 440 days. Today, the average time from appraisal to closing for a seller is 298 days. This indicates a reduction of 142 days or 32 percent. Additionally, the reduction of the number of appraisals and appraisal reviews has saved over $650,000 which can now be applied to the purchase of additional lands. While this improvement is substantial, it is staff’s position that there may be an opportunity for additional improvements using new strategies currently under development by DEP. Upon final formulation of the new strategies, it is staff’s intention to present them to the Board of Trustees for consideration in the spring of 2001. (Report to be submitted separately.) RECOMMEND DEFERRAL *************************************************** Substitute Item 5 Eminent Domain Authorization/Delegation of Authority/Golden Gate Estates/Save Our Everglades (Phase II) CARL Project REQUEST: Consideration of a request to (1) direct the Department of Environmental Protection to acquire fee simple title to all remaining land within the portion of the Save Our Everglades CARL project (Phase II) lying south of I-75 on which two bona fide offers have been made by the exercise of the power of eminent domain pursuant to the provisions of chapters 259, 73 and 74, F.S.; and (2) delegate authority to the Secretary of the Department of Board of Trustees Agenda – February 6, 2001 Substitute Page Eight
*************************************************** Substitute Item 5, cont. Environmental Protection to accomplish the acquisition as described herein through negotiation or condemnation, including authority to prepare and execute all necessary parcel-specific condemnation resolutions. COUNTY: Collier STAFF REMARKS: The Save Our Everglades CARL project is ranked number 3 on the CARL Mega/Multiparcel Project List approved by the Board of Trustees on February 22, 2000, and is eligible for negotiation under the Department of Environmental Protection (DEP), Division of State Lands’ (DSL) Land Acquisition Workplan. That portion of the project lying south of I-75, commonly referred to as Golden Gate Estates South, contains 55,566.2 acres, of which 44,422 acres have been acquired or are under agreement to be acquired, leaving 11,144.2 acres, or 20 percent, remaining to be acquired. The Golden Gate Estates South portion of this project includes the Southern Golden Gate Estates subdivision and surrounding acreage tracts bordered by I-75 to the north, US-41 to the south and the Fakahatchee Strand and Belle Meade CARL projects to the east and west, respectively. On January 23, 2001, the Board of Trustees recognized that (1) property within the Save Our Everglades CARL project lying south of I-75 is of special importance to the state; (2) the acquisition of the land is necessary to protect hydrological connections among Big Cypress National Preserve, Fakahatchee Strand State Preserve, and Everglades National Park, and to protect and restore the Everglades, which is an endangered natural resource of unique value to the state; and (3) the failure to acquire this property will result in irreparable loss to the state and seriously impair the state’s ability to manage or protect other state-owned lands. DEP was directed to proceed with the acquisition of the parcels in Phase I. Public acquisition is essential to continue the conservation, preservation and restoration of this endangered portion of the western Everglades ecosystem that is a vital component of the Comprehensive Everglades Restoration Plan (CERP). Conserving this land is critical to the ecosystem in the western Everglades, its wildlife and the water quality throughout the area. In 1996, the hydrological restoration plan was identified as a "Critical Project" under the Federal Water Resources Development Act making it eligible for federal funds. The project was subsequently added to CERP. The acquisition will allow the restoration of significant wetlands crucial to the reestablishment of the historic water flow pattern in the western Everglades. Nearly half of this region's water flows into Everglades National Park. Purchasing this portion of the Save Our Everglades CARL project will also help preserve and restore the fresh water flow necessary for maintaining the rich productivity of Gulf Coast estuaries, such as Rookery Bay and the Ten Thousand Islands. Moreover, the timely implementation of the hydrological restoration plan will restore important habitat for numerous endangered and threatened species, including the Florida panther, one of the world's most endangered mammals. Public acquisition of this portion of the Save Our Everglades CARL project will preserve a large piece of South Florida's unique ecosystem. Ultimately, this will contribute to the formation of a continuous public conservation corridor extending across South Florida from the Gulf Coast to approximately ten miles from the Atlantic Ocean. It will help protect the western Everglades ecosystem from encroachment of residential, commercial and industrial development. Board of Trustees Agenda – February 6, 2001 Substitute Page Nine
*************************************************** Substitute Item 5, cont. In 1999, the Big Cypress Basin Board advised DEP that the hydrologic restoration was scheduled to commence as early as October 2002, and 100 percent public ownership would be required. After multiple rounds of appraisals and offers over the last fifteen years, nearly 4,000 parcels in Southern Golden Gate Estates and the surrounding area still remain to be acquired. Due to the relatively large number of remaining parcels, a plan was developed to increase the percentage of parcels acquired by voluntary means while assuring that all lands are acquired by October 2002. The first step in the plan was to seek authority from the Board of Trustees to offer amounts in excess of the appraised value in an effort to acquire as much property as possible without having to resort to the use of eminent domain. On July 11, 2000, the Board of Trustees authorized the Director of DSL, or her designee, to extend bona fide offers and approve any contract for the sale and purchase of land at $5,000 over or up to 125 percent of the appraised value, whichever is greater, when the purchase price per parcel does not exceed $50,000, and at up to 125 percent of the appraised value when the purchase price per parcel exceeds $50,000. In anticipation that a substantial portion of the remaining parcels will still require the use of eminent domain to assure that all lands are in public ownership by the time the restoration is to begin, preliminary meetings have been held with the Chief Judge in Collier County. Current projections are that it may take nearly two years to process the parcels that cannot be acquired voluntarily through the court system of Collier County. To assure a constant flow of parcels to the Office of the Attorney General, the plan contemplates the processing of parcels in multiple phases over the next 18 months. On the advice of the Office of the Attorney General, appraisals were updated to assure that offers would satisfy the bona fide offer requirement and on December 19, 2000, second bona fide offers were tendered to the 26 owners (45 parcels) in Phase II. The initial mailing and follow-up negotiations with the owners within Phase II resulted in the successful negotiation and approval of contracts for 6 of the 45 parcels or 13 percent of Phase II. Negotiations for the acquisition of the 39 remaining parcels in Phase II have reached an impasse; however, the bona fide offer requirement of section 259.041(14), F.S., has been satisfied. In the event one or more of the parcels placed under contract cannot close for any reason, the authority requested today covers all 45 parcels. Parcels under contract will be held by DSL and only parcels that have reached impasse or parcels that cannot be closed by voluntary means will be turned over to the Office of the Attorney General. Section 259.041(14), F.S., authorizes the Board of Trustees, by majority vote of all of its members, to direct DEP to exercise its power of eminent domain pursuant to the provisions of chapters 73 and 74, F.S. Eminent domain may be used to acquire any of the property on the CARL priority list if (1) the state has made at least two bona fide offers to purchase the land through negotiation and an impasse between the state and the land owner has been reached; and (2) the land is of special importance to the state because (a) it involves an endangered or natural resource and is in imminent danger of being developed; (b) it is of unique value to the state and failure to acquire the property would constitute an irreparable loss to the state; or (c) the failure to acquire the property would seriously impair the state's ability to manage or protect other state-owned lands. The parcels included in Phase II of the Save Our Everglades project lying south of I-75 meet these criteria: (1) the state has made at least two bona fide offers and has been unable to acquire these parcels through negotiation; and (2) in section 373.4592(1), F.S., the legislature has recognized that the Everglades ecological system is unique in the world and one of Florida’s great treasures. They also recognize that the CERP is important for restoring the Everglades ecosystem and sustaining the environment, economy, and social well being of Board of Trustees Agenda – February 6, 2001 2nd Substitute Page Ten
*************************************************** Substitute Item 5, cont. South Florida. The Everglades ecological system is endangered as a result of adverse changes in water quality, and in the quantity, distribution, and timing of flows and, therefore, must be restored and protected. The hydrological restoration of these lands is an essential component of the CERP. Pursuant to the Board of Trustees’ eminent domain policy, DSL has mailed proper notice to all owners of record in Phase II at least 45 days preceding this Board of Trustees’ meeting. In accordance with the eminent domain policy, the notice advised the owners that homesteaded property was exempt from eminent domain without the owner’s written permission. As of (01/31/01) at 5:00 p.m., no responses to the written notice had been received. Based on research of tax records by staff, there does not appear to be any homesteaded property within Phase II. If it is later determined that there is any homesteaded property and the owner has not given written consent, that parcel will be excluded from the eminent domain process unless the Board of Trustees waives its policy on homestead property. If the Board of Trustees approves this item, DSL intends to amend its existing contract with the Office of the Attorney General to handle the condemnation of these parcels. Once second bona fide offers are tendered on additional groups of parcels, staff will return to the Board of Trustees periodically to seek authority to pursue those parcels that have reached impasse or parcels that cannot be closed by voluntary means. It is anticipated that there may be as many as ten such groups or phases. The property will be managed by the Department of Agriculture and Consumer Services, Division of Forestry as an addition to Picayune State Forest. DEP’s Division of Recreation and Parks will manage the property in the area east of the Faka Union Canal. The South Florida Water Management District will coordinate the implementation of the hydrologic restoration project. These acquisitions are consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan. (See Attachment 5, Pages 1-9) RECOMMEND APPROVAL *************************************************** Substitute Additional Item 6 Lost Tree Village Corporation v. BOT Settlement Agreement REQUEST: Consideration of a proposed settlement in the case of Lost Tree Village Corporation v. Board of Trustees of the Internal Improvement Trust Fund, Nineteenth Judicial Circuit (Indian River County) Case No. 99-0093-CAB. COUNTY: Indian River APPLICANTS: Department of Environmental Protection, Division of State Lands, and Lost Tree Village Corporation LOCATION: Sections 12, 13, 24, 25 and 29, Township 32 South, Range 39 East; Sections 19 and 30, Township 32, South, Range 40 East, in the Indian River Lagoon, Class III Outstanding Florida Waters, within the local jurisdiction of the City of Vero Beach. Aquatic Preserve: Indian River Malabar – Vero Beach Aquatic Preserve Designated Manatee County: Yes, with an approved manatee protection plan Board of Trustees Agenda – February 6, 2001 Substitute Additional Page Eleven
*************************************************** Substitute Additional Item 6, cont. Manatee Aggregation Area: no Manatee Protection Zone: Yes, county-wide manatee speed zone Outstanding Florida Waters: Yes, Class III STAFF REMARKS: Lost Tree Village Corporation ("Lost Tree") owns numerous islands and other property in and adjacent to the Indian River Lagoon in Indian River County, Florida. In 1950, the Board of Trustees deeded hundreds of acres of islands within the Indian River to Fred Tuerk, and Lost Tree acquired title to these islands from Mr. Tuerk’s estate through an option agreement executed in 1968. Lost Tree seeks to develop upscale residential homesites on some of these islands, described hereafter as the "Inner Islands," three islands lying along the east side of the Indian River, and the "Outer Islands," three islands located further west and in the middle of the Indian River Lagoon and separated from the Inner Islands by Gifford’s Cut, a navigable channel over sovereign submerged lands. In pursuit of this objective, Lost Tree filed applications for Environmental Resource Permits with the St. Johns River Water Management District in 1998, seeking to construct a bridge to the Inner Islands and several bridges among the Inner Islands. In response to the Water Management District’s inquiry, Department of Environmental Protection (DEP) staff opined that the submerged lands at issue were owned by the Board of Trustees. The Water Management District informed Lost Tree that it could not issue the permits because the bridges would violate the Board of Trustees’ coastal island provisions contained within sections 18-21.004(1)(g) and (1)(h), and 18-20.004(1) and (2), F.A.C. On February 12, 1999, Lost Tree filed an action in the Circuit Court for the Nineteenth Judicial Circuit, in and for Indian River County, to quiet title in the submerged lands surrounding the Inner and Outer Islands, thereby seeking to render the Board of Trustees’ coastal island rules inapplicable to its bridge permit applications. The Board of Trustees contended that Lost Tree’s deed was ambiguous and its surveys faulty and that parole evidence confirmed that both Mr. Tuerk and the Board of Trustees believed and intended that the original conveyance involved only uplands and that the Inner Island tract was located offshore and did not abut the mainland. Mediation proved unsuccessful, and the case was tried in May, 2000. On September 11, 2000 the Circuit Court entered a Final Judgment determining that the Board of Trustees’ deed to Mr. Tuerk conveyed submerged lands plus the islands identified in the deed – -even though Mr. Tuerk paid only for the net acreage (the islands)-- and on the issue of the location of the Inner Island property the Court also ruled in favor of Lost Tree, finding the deed to be unambiguous and the property to be immediately adjacent to the mainland. However, the Court also entered an alternative finding and alternative ruling, stating that if parole evidence were admitted (i.e. if the Court of Appeals found that the deed was indeed ambiguous and the Board of Trustees’ parole evidence should have been considered) then the evidence established that the Board of Trustees and Mr. Tuerk intended that the Inner Island conveyance was located offshore and noncontiguous to the mainland. The case is currently on appeal to the Fourth District Court of Appeal and the initial brief on the Board of Trustees’ behalf was filed on January 23, 2001. Unless overturned, the Final Judgment quiets title in Lost Tree of the submerged lands lying between the mainland and the Inner Islands, the submerged lands lying among the Inner Islands, and the submerged lands lying among the Outer Islands. The practical effect of the Final Judgment is that the Board of Trustees’ coastal island rules are inapplicable to Lost Tree’s plans to bridge to the Inner Islands and among both the Inner and Outer Islands. Further, approximately 120 acres of submerged lands surrounding the islands are considered privately held and not within the aquatic preserve.
Board of Trustees
*************************************************** Substitute Additional Item 6, cont. The proposed settlement currently before the Board of Trustees would accept the Circuit Court’s determination that Lost Tree owns the submerged lands surrounding the Inner and Outer Islands, and would accept the location of the Inner Island tract as determined by the Circuit Judge. In return, Lost Tree will quitclaim all submerged lands surrounding the Inner and Outer Islands to the Board of Trustees except for the footprints of its proposed bridges to and between the Inner Islands and between the Outer Islands. Lost Tree will also reserve 25 foot-wide strips of submerged land surrounding the Inner and Outer Islands until all Environmental Resource Permits are issued, after which such strips will be conveyed to the Board of Trustees except for the footprints of the two small ferry docks for access to the Outer Islands. No application for any further docks of any kind will be made by Lost Tree until after the buffer tracts have been conveyed, thereby assuring that all subsequent dock construction, if any, will be consistent with aquatic preserve rules. Further, Lost Tree will convey to the Board of Trustees its McCuller’s Point property, which consists of approximately 135 acres located just north of the Inner Islands. Lost Tree will also restore such property, which was diked and turned into a mosquito impoundment, back into a functioning saltmarsh system or Rotational Impoundment Management ("Rim") System, which will reconnect the estuary on the property to the Indian River Lagoon. As part of this restoration, Lost Tree will remove exotic vegetation and replant the property with mangroves and other native vegetation. Lost Tree will also convey to the Board of Trustees seven additional tracts of land in the Indian River Lagoon consisting of approximately 43 acres of submerged land and small island chains in and adjacent to the aquatic preserve. In exchange for the above conveyances from Lost Tree to the Board of Trustees, the settlement calls for the Board of Trustees to convey to Lost Tree a strip of submerged lands 3 feet wide and approximately 450 feet long from the Inner Islands to the Outer Islands for the sole purpose of providing potable and nonpotable water for "golf course purposes." The deed contains restrictions and reverter language that will result in the reversion of the property back to the Board of Trustees if: (1) Lost Tree fails to construct subaqueous water pipelines and is not delivering water to a completed or substantially completed golf course within five years after the Board of Trustees’ approval of the settlement agreement; (2) Lost Tree uses the deeded property for any purposes other than for a subaqueous water pipeline; (3) Lost Tree uses water delivered to the Outer Islands via these pipelines for any purpose other than for "golf course purposes;" or (4) if Lost Tree constructs residential units or dwellings on the Outer Islands. Finally, Lost Tree will be required, as part of the settlement of this matter, to construct sewage collection improvements to allow 49 homes in the Silver Shores subdivision adjacent to the Indian River Lagoon to stop using septic tanks and connect to the city of Vero Beach’s central sewage treatment system. This should result in significant water quality benefits for the Indian River Lagoon and the aquatic preserve.
As noted above, the terms of the proposed settlement involve the exchange of title to lands: Lost Tree will convey approximately 302 acres of upland and submerged land to the Board of Trustees, and in return the Board of Trustees will convey approximately .032 acres to Lost Tree, subject to restrictions and reversionary language, for the purpose of laying subaqueous water lines from the Inner Islands to the Outer Islands. The conveyance of sovereign submerged lands requires a finding by the Board of Trustees that it is in the public interest to do so. Article X, section 11, Constitution of the State of Florida. Section 253.42 F.S., entitled "Board of Trustees may exchange lands," authorizes the Board of Trustees to exchange lands under such terms and conditions as it deems appropriate and to enter into agreements or contracts for such purpose. Section 18-20.004(1)(b), F.A.C., reiterates the Board
of Trustees
*************************************************** Substitute Additional Item 6, cont. constitutional test that the conveyance must be in the public interest, as analyzed under the provisions of section 18-20.004(2), F.A.C. Staff recommends that the Board of Trustees make the requisite finding that this settlement and conveyance is in the public interest, in that: the exchange will convey approximately 212 acres of submerged lands and 90 acres of uplands within or adjacent to the boundary of the aquatic preserve to the Board of Trustees; water quality will be enhanced by connecting 49 homes to a central sewage system; the McCuller’s Point property and estuary will be converted from a mosquito impoundment into a functioning saltmarsh and essential fish habitat; and exotic and invasive plant species (Brazilian pepper and Australian pine) will be eliminated and mangrove and other native species will be replanted. (See Additional Attachment 6, Pages 1-88) RECOMMEND APPROVAL *************************************************** |
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