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AGENDA BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND AUGUST 28, 2001
******************************************************** Item 1Kabboord Exchange Agreement REQUEST:Consideration of an exchange agreement for an acre-for-acre and value-for-value exchange of property between John J. Kabboord and the Board of Trustees. COUNTY:Brevard APPLICANT:John J. Kabboord LOCATION:Section 12, Township 24 South, Range 35 East CONSIDERATION:Acre-for-Acre (.051) and Value-for-Value ($2,140) STAFF REMARKS:The Division of State Lands has received a request from John J. Kabboord (Kabboord) for an acre-for-acre exchange of lands in order to accommodate a billboard located on the Kabboord property that is currently non-compliant with county setback requirements.The billboard is presently located 15 feet from the road right-of-way; however, the county requirement is 30 feet. The Board of Trustees acquired property from Kabboord on January 13, 1999, and Kabboord retained an area that contained the billboard and a 15-foot setback from the road right-of-way of State Road 528.At the time of the sale, Kabboord was under the impression that the county setback requirement was 15 feet.Subsequent to the closing, the county notified Kabboord of the non-compliance of the billboard, due to the required 30-foot setback.The Board of Trustees' land is managed by the Department of Agriculture and Consumer Services, Division of Forestry (DOF), and is being developed as a work center site for fire fighting crews and other DOF-related activities. Since no conservation lands are involved, this land exchange is proposed as a value-for-value exchange and an acre-for-acre exchange.The property would not have been acquired from Kabboord, in the 1999 purchase, if it had been accurately known at the time that the county setback requirement was 30 feet.Therefore, this exchange satisfies the intentions of the parties to the original transaction. The original surveys indicated both parcels to be .0715 acres.The appraisal was based on this acreage.After review of the surveys, it was found that the original surveys were incorrect.The correct acreage of the parcels was .051 acres.This discrepancy was indicated in the revised survey.Although the size of the parcels has decreased, both parcels are still equal in size and this transaction remains an acre-for-acre exchange.Because the appraisal is based on the value per square foot, the exchange remains value-for-value. DOF has agreed to the exchange, so long as there are no negative impacts to the improvements planned for the state-owned property, and confirmation has been received from the county that there are no negative impacts at this time.The exchange parcels will be surveyed at the expense of Kabboord, and Kabboord will be responsible for any other costs of the exchange. The Board of Trustees' parcel was purchased with a Forestry Land Acquisition appropriation from the DOF's Incidental Trust Fund.The parcel was not purchased with conservation funds or for conservation purposes.
This exchange is consistent with section 187.201(23), F.S., the Agriculture section of the State Comprehensive Plan. Board of Trustees Agenda - August 28, 2001 Page Two ******************************************************** Item 1, cont. (See Attachment 1, Pages 1-44) RECOMMEND APPROVAL
******************************************************** Item 263rd Street Associates, Ltd. Deed Restriction Modification REQUEST:Consideration of a request to modify the deed restriction approved by the Board of Trustees of the Internal Improvement Trust Fund in the conveyance of 2.77 acres of filled, formerly sovereignty submerged lands to 63rd Street Associates, Ltd. COUNTY:Miami Dade Deed No. 30241 (4868-13) APPLICANT:63rd Street Associates, Ltd. LOCATION: Sections 11 and 14, Township 53 South, Range 42 East STAFF REMARKS:On May 11, 1999, the Board of Trustees approved the release of the restrictions contained in Dedication No. 23589 and the conveyance of 2.77 acres of formerly sovereignty submerged lands to 63rd Street Associates, Ltd.The conveyance was approved with the stipulation that the quitclaim deed include a provision restricting dredging, except for navigation purposes.On July 10, 1999, the Board of Trustees entered into a Contract for Sale and Purchase for $1,500,000 with 63rd Street Associates, Ltd. for the conveyance of 2.77 acres. Prior to closing, 63rd Street Associates, Ltd. approached the Division of State Lands (DSL) with a request to modify the deed restriction concerning dredging.63rd Street Associates, Ltd., intends to develop the property and install residential docks adjacent to the property.The docks will require issuance of a U.S. Army Corps of Engineers "Dredge and Fill” permit.While it is not the intent of the purchaser to dredge the property, there is concern that the deed restriction will delay the permitting process.Therefore, the purchaser and DSL are proposing the following language replace the current deed restriction: "GRANTEE is prohibited from dredging the above described lands, except for navigation purposes.This restriction does not preclude the placement of pile-supported or floating docks, mooring piles or other similar structures on the above-described lands, if GRANTEE has obtained all required federal, state and local permits, approval, agreements and authorizations for said structure and does not have to dredge any of the above described lands.” DSL staff does not believe that the proposed language alters the intent or purpose of the deed restriction. (See Attachment 2, Pages 1-11) RECOMMEND APPROVAL Board of Trustees Agenda - August 28, 2001 Page Three
****************************************************** Item 3TNC Assignment of Option Agreement (CSX Transportation, Inc.)/Lake Wales Ridge Ecosystem (Lake Blue) Florida Forever Project REQUEST:Consideration of the acceptance of an assignment of an option agreement to acquire 26.73 acres within the Lake Wales Ridge Ecosystem (Lake Blue) Florida Forever project from The Nature Conservancy, Inc. COUNTY:Polk LOCATION:Section 14, Township 28 South, Range 25 East CONSIDERATION:$550,700 ($535,000 for the acquisition; $15,700 for the purchase of the option agreement)
** $20,602.32/acre STAFF REMARKS:The Lake Wales Ridge Ecosystem (Lake Blue) project is an "A” group project on the Florida Forever Full Fee Project List approved by the Board of Trustees on May 15, 2001.The project contains 22,993 acres, of which 12,943 acres have been acquired or are under agreement to be acquired.After the Board of Trustees approves this agreement, 10,023.27 acres or 44 percent of the project will remain to be acquired. Pursuant to a multi-party acquisition agreement entered into between the Division of State Lands and The Nature Conservancy, Inc. (TNC), TNC has acquired an option to purchase this 26.73-acre parcel from CSX Transportation, Inc.After this acquisition is approved, the Board of Trustees will acquire the option from TNC for $15,700, which represents agreed upon compensation to TNC for overhead associated with acquiring the option.The Board of Trustees may then exercise the option and purchase the property.The assignment of option agreement provides that payment to TNC is contingent upon the Board of Trustees successfully acquiring the property from the owner. 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. A survey will be provided by the purchaser prior to closing.A title insurance policy and an environmental site assessment will be provided by the seller.At closing, the purchaser will reimburse the seller's cost of the environmental site assessment up to $5,000. The acquisition of this parcel is necessary to ensure the integrity of this small ecosite.Two-thirds of the Lake Blue site has been acquired.After this acquisition, only a 0.5-acre parcel will remain to be acquired.The Lake Blue site has a high potential for the conservation of and the future survival of one of the rarest scrub plants, pink lupine (Lupinus aridorum), which has suffered a 50 percent decline in the past decade and is at high risk for extinction during our lifetime. Board of Trustees Agenda - August 28, 2001 Page Four
******************************************************** Item 3, cont. The high, sandy, Lake Wales Ridge, stretching south from near Orlando almost to Lake Okeechobee, was originally covered with a mosaic of scrub, flatwoods, wetlands, and lakes. The scrub is unique in the world - it is inhabited by many plants and animals found nowhere else - but it has almost completely been converted to citrus groves and housing developments. The Lake Wales Ridge Ecosystem project is designed to protect the best remaining tracts of this scrub and the ecosystems associated with it, thereby preserving several endangered species and allowing the public to see examples of the unique original landscape of the ridge. The property will be managed by the Florida Fish and Wildlife Conservation Commission under a single-use concept as a unit of the Lake Wales Ridge Ecosystem. 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 3, Pages 1-30) RECOMMEND APPROVAL
******************************************************** Item 4 Kirby Development, Inc./Kirby Option Agreement/Ichetucknee Trace Florida Forever Project REQUEST: Consideration of an option agreement to acquire 302.35 acres within the Ichetucknee Trace Florida Forever project from Kirby Development, Inc., Garland and Sharon D. Kirby, and Fletcher and Terry C. Kirby. COUNTY: Columbia LOCATION: Sections 17 and 20, Township 05 South, Range 16 East CONSIDERATION: $10,250,000
** $33,901/acre STAFF REMARKS:The Ichetucknee Trace project is an "A” group project on the Florida Forever Full Fee Project list approved by the Board of Trustees on May 15, 2001.This project contains 1,326 acres, of which 438.18 acres have been acquired or are under agreement to be acquired by the Board of Trustees.After the Board of Trustees approves this agreement, 585.47 acres, or 44 percent of the project, will remain to be acquired. As part of this agreement, the sellers have arranged to donate $1,250,000 of the sale proceeds to the Trust For Public Land (TPL) for the acquisition of additional properties in the Ichetucknee Trace Florida Forever project.If no additional acquisitions can be made in the project, TPL will use the donated funds to acquire property within other Florida Forever projects, as agreed upon by TPL and the Division of State Lands (DSL).Any properties acquired with the donated funds shall then be donated to the Board of Trustees. Board of Trustees Agenda - August 28, 2001 Page Five
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Item 4, cont. All mortgages and liens will be satisfied at the time of closing.There is an active limerock mine on the property that is currently under lease to a local construction company.All mining shall cease within five days of Board of Trustees' approval of the option agreement.All improvements related to the mining operation shall be removed from the property prior to closing, with the exception of a front-end loader.This equipment will be used by the lessee to remove the previously excavated screenings for a period of six months from the date of the Board of Trustees' approval.There is also a 50-year-old, single-family residence located on site.The contributory value of the residence is nominal.A 30-foot-wide Clay Electric Cooperative easement runs northeast from SW Chariot Terrace past the residence and runs northwest, west and northwest from the southeast corner of section 17 to SW Chariot Terrace.The impact of this easement is that the area under easement will not yield any reserves, since there can be no excavation within the easement area.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 title insurance policy, a survey, an environmental site evaluation and, if necessary, an environmental site assessment will be provided by the purchaser. North and east of Ichetucknee Springs, a dry valley - the Ichetucknee Trace - marks the route of a major underground conduit supplying the springs' clear water.Though a state park protects the springs and much of the Ichetucknee River that flows from them, active limerock mines and sinks in the trace threaten to rupture the conduit and pollute the spring water.The Ichetucknee Trace project will protect the water quality of the springs by removing the threat of further mining and groundwater contamination at six sites along the trace.It also will provide the public with a park and a fishing area. The property will be managed by Columbia County's Division of Recreation and Parks and the Florida Fish and Wildlife Conservation Commission. (See Attachment 4, Pages 1-84) RECOMMEND APPROVAL ******************************************************** Item 5 SJRWMD Acquisition Agreement/Twelve Mile Swamp CARL Project REQUEST:Authorization to acquire an undivided 50 percent interest from the St. Johns River Water Management District, in the standing timber and future timber harvest rights on Parcel A and an undivided 50 percent interest in all rights on Parcel B, except for Rayonier Woodlands, LLC's right to manage and selectively harvest the upland pine timber during the remainder of the lease, on the recently acquired joint ownership of the Cummer Trust property, located within the Twelve Mile Swamp CARL Project. COUNTY:St.Johns Board of Trustees Agenda - August 28, 2001 Page Six
****************************************************** Item 5, cont. LOCATION:Sections 09, 11, 13, 16, 21 through 24, 27, 28, 33 through 36, 38, 39 and 42 through 45, Township 05 South, Range 28 East; Sections 29 through 32, and 41 through 43, Township 05 South, Range 29 East; Sections 01, 03, 10 through 13, 23 through 25, 26, 36, 39, 45, 46, 48, Township 06 South, Range 28 East; Sections 04 through 06, 08, 17 through 22, 27 through 34, 46, 58 through 64, 66 through 72 and 75 through 78, Township 06 South, Range 29 East; and Sections 03 through 06, 08 through 10, 37 and 53, Township 07 South, Range 29 East CONSIDERATION:$2,309,009.85* (Board of Trustees' 50 percent share of the $4,618,019.71** purchase price) TIMBER LEASE VALUE
*$291.86 (Board of Trustees' price per acre) ** $583.72 (Total price per acre) STAFF REMARKS:The proposed agreement covers timber rights on approximately 7,533 acres (Parcel A), and all rights on 378 acres (Parcel B) for a public access area, except for Rayonier Woodlands, LLC's right to manage and selectively harvest the upland pine timber during the remainder of the lease. On March 13, 2000, the Board of Trustees approved a 50/50 joint acquisition between the St. Johns River Water Management District (District) and the Board of Trustees for 21,898 acres (the Cummer Trust property) within the Twelve Mile Swamp CARL project area in St. Johns County.This was a full fee acquisition, subject to a lease with a twenty-five year term remaining, that included the timber, hunting and other surface rights on the land, and precluded public access.The property closed on February 20, 2001. Six named creeks begin within the boundaries of this land.The present lease encumbering the property allows the lessee, Rayonier Woodlands, LLC, (Rayonier) to harvest all timber on the property including the timber located within the wetlands.District staff entered into discussions with Rayonier to purchase the standing timber within most of the wetlands, as well as Rayonier's future rights during the remainder of the lease to harvest and re-plant harvested areas over approximately 7,911 acres (Parcels A and B).Purchasing this timber and these future rights will add a substantially higher degree of protection for the water resources on the property, not only in the immediate cessation of harvesting, but also because it is anticipated that a significant portion of the hardwood areas could be converted to commercial pine plantations, thereby diminishing the water-related benefits of those areas.An additional benefit in this acquisition will be increased wildlife protection, as these areas are important for the protection of certain native species to the area, including the Florida Black Bear, deer, turkey, and a variety of bird species. Public access is currently precluded over the entire tract due to the existing lease.As a result of the proposed transaction, the Board of Trustees will acquire a public access area over an approximately 378-acre portion of the tract (Parcel B) located at the intersection of International Golf Parkway Drive and U.S. Highway 1.Public access to this area will allow for resource-based recreation, as well as environmental education.
Board of Trustees Agenda - August 28, 2001 Page Seven
******************************************************** Item 5, cont. Rayonier and the District co-funded a cruise of the timber volumes on both of these sites.District staff contracted with The Forestry Co. to provide estimates of the stumpage values.The present value of the future profits through the lease term were calculated using standard timber growth models.These values were added together to reach a total value for the proposed acquisition.District staff negotiated a purchase contract with Rayonier, and secured the approval of the District's Governing Board on April 11, 2001. The District has provided the Department of Environmental Protection's Division of State Lands with Resolution No. 2001-27, requesting reimbursement of the Board of Trustees' 50 percent share of the purchase price, plus its 50 percent share of pre-acquisition and closing-related costs.Closing costs are expected to be minimal in this transaction, with the buyers being held responsible for recording the amendment to the timber contract, quitclaim deed, and any other closing documents.Rayonier will be responsible for the pro-ration of any real property taxes.If the Board of Trustees approves this purchase, the District will proceed to closing.Title will be vested jointly, with the District and Board of Trustees with each holding an undivided 50 percent interest. On March 14, 2000 and pursuant to section 259.032(9)(b)2, F.S., the Board of Trustees designated the District as the lead manager of the Twelve Mile Swamp CARL Project Area.The primary goals of management of the Twelve Mile Swamp CARL project are to conserve and protect significant habitat for native species or endangered and threatened species; to manage water supply in the region to protect water resources; and to conserve, protect, manage, or restore important ecosystems, landscapes, and forests, in order to enhance or protect significant surface water, coastal, recreational, timber, fish or wildlife resources which local or state regulatory programs cannot adequately protect. For twenty-five years, the District will monitor the implementation of an existing lease on 21,931 acres (Cummer Trust property).Upon termination of the lease in 2015, this property will be managed as stated above. Approval of this acquisition will provide support to the District in its efforts to meet the management goals of providing water management, water supply, and the conservation and protection of water resources within the Twelve Mile Swamp CARL project area.The District will monitor the terms of this agreement, as well as other management responsibilities. (See Attachment 5, Pages 1-62) RECOMMEND APPROVAL ******************************************************** Item 6Land Acquisition Appraisal Procedures & Issues Discussion REQUEST: A discussion of land acquisition appraisal matters. STAFF REMARKS:The Board of Trustees expressed an interest in meeting with private sector appraisers to discuss land acquisition appraisals. The Department of Environmental Protection's Division of State Lands (DSL) has invited three private sector real estate appraisers - two of whom are not on DSL's list of approved appraisers - to participate in the discussion. Mr. William Pittenger and Mr. Dennis Basile are not on DSL's approved list. Board of Trustees Agenda - August 28, 2001 Page Eight
******************************************************** Item 6, cont. The third appraiser, Mr. Randy Chandler, is on DSL's list and has provided appraisal services to the state for various land acquisition projects. In addition to appraisal issues involving the recent South Florida Water Management District acquisition of the Wald ownership in Dade County, the following questions have been submitted as sample topics for discussion:
· How are comparable sales selected for use in the sales comparison approach to valuation, and what factors govern whether a sale is considered "comparable"?Are there any factors that are universally considered more important than others? (See Attachment 6, Pages 1-3) RECOMMEND DISCUSSION ******************************************************** Item 7 Jacksonville Port Authority Recommended Consolidated Intent REQUEST:Consideration of an application for (1) a five‑year sovereignty submerged lands lease containing 324,086.40 square feet, more or less, for a bulk material handling facility and vessel berthing area; (2) a 11.33 acre, more or less, public easement for a dredged access channel to the facility; (3) authorization for the severance of 445,000 cubic yards of sovereign material; (4) construction of a 1,345-foot-long vertical sheet pile wall and approximately 2,500 cubic yards of backfill on sovereignty submerged lands; and (5) placement of 1,100 linear feet of riprap stabilization at or above the mean high water line. COUNTY:Duval Lease No. 160031802 Public Easement No. 30651 Application No. 16-185791-001-EI APPLICANT:Jacksonville Port Authority (JPA) LOCATION:Sections 25 and 26, 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 Board of Trustees Agenda - August 28, 2001 Page Nine ******************************************************** Item 7, cont. Designated Manatee County: Yes, with an approved manatee protection plan Manatee Aggregation Area:No Manatee Protection Speed Zone:Yes, 300-foot slow speed zone CONSIDERATION:Pursuant to the exemptions provided for port facilities in sections 253.77(4) and 253.03(10), F.S., this project qualifies for a waiver of lease, easement and severance fees. STAFF REMARKS:In accordance with rules adopted pursuant to sections 373.427(2) and 253.77(2), F.S., the attached "Recommended Consolidated Notice" 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." JPA is proposing to construct a new bulk material handling facility for the relocation of an existing tenant.The proposed bulk material handling facility will be located on Dames Point in the St. Johns River.JPA owns approximately 550 acres of property on Dames Point, and will be developing the area for port activities.The existing site is currently undeveloped, with the exception of single-family homes, which have been purchased by JPA. The materials handled at the facility are primarily sand, crushed limestone and limerock.The facility will consist of a 1,345-foot-long vertical sheet pile wall (bulkhead) and seven mooring dolphins. The mooring dolphins will each have 5-foot-wide catwalks that connect to the sheet pile wall to provide access for tying off the vessel mooring lines.The dolphins will provide for the mooring of one vessel up to 800 feet in length.An additional 1,100 feet of shoreline will have a riprap revetment placed at or above the mean high water line.A separate environmental resource permit application is required to be submitted for the construction of the upland facilities, and will include the required stormwater treatment system. JPA is also proposing a public easement to dredge 445,000 cubic yards of sovereign material to create an access channel and to provide sufficient depths in which to berth the bulk material vessel.The severed material will be disposed at Bartram Island, a JPA-owned spoil disposal island.The berthing area and access channel will be dredged to -40.0 feet mean low water, with side slopes of 3 to 1 (horizontal to vertical). The retaining wall and backfill material will result in the filling of 0.17 acre of salt marsh vegetation along the shoreline and the dredging will result in the conversion of an additional 0.11 acre of salt marsh to open water.To mitigate for the wetlands which are to be eliminated, and converted to open water, JPA will expand an existing salt marsh mitigation area located adjacent to and contiguous with the marshes and waters of Sisters Creek.Sisters Creek is located within the Nassau River-St. Johns River Marshes Aquatic Preserve.The mitigation area is currently 2.08 acres in size, and will be expanded by 0.45 acre to offset the impacts of the bulk handling facility. DEP's environmental resource permit does not authorize liveaboards, sewage pumpout or fueling facilities.The Florida Fish and Wildlife Conservation Commission states that the Board of Trustees Agenda - August 28, 2001 ******************************************************** Item 7, cont. project is consistent with the Duval County Manatee Protection Plan, and its recommendations regarding protection of manatees have been addressed in the environmental resource permit.The project was noticed to the one property owner within 500 feet of the lease area, as required by section 253.115(1), F.S., and to date, no objections have been received. 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 proposed action is consistent with the adopted plan as amended according to a letter received from the city of Jacksonville. (See Attachment 7, Pages 1-38) RECOMMEND APPROVAL ******************************************************** Substitute Item 8 Pier 81 Marina, Inc., Recommended Consolidated Intent REQUEST:Consideration of an application to modify an existing 25-year sovereignty submerged lands lease to (1) assign the lease to the current riparian upland owner; (2) consolidate two commercial marina leases into one lease and cancel one of the leases; and (3) increase the lease area for a private commercial marina from 109,721 square feet, more or less, to 157,899 square feet, more or less. COUNTY:Collier Lease No. 110011195 ERP No. 11-0141447-001 APPLICANT:Pier 81 Marina, Inc. LOCATION:Section 05, Township 52 South, Range 26 East, in the Marco River, Class II waters, within the local jurisdiction of the city of Marco Island
CONSIDERATION:$29,146.73,
representing (1) $19,722.73 as the initial lease fee for the 150,149-square-foot
docking facility computed at the base rate of $0.1216 per square foot,
and including the 25 percent surcharge for the expansion area; and
(2) $9,424 as the initial lease fee for the 7,750-square-foot non-water
dependent boardwalk computed at ten times the base rate of $0.1216
per square foot.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 gross rental income pursuant to section 18-21.011(1)(a)1, F.A.C. STAFF REMARKS: In accordance with rules adopted pursuant to sections 373.427(2) and 253.77(2), F.S., the attached "Consolidated Notice of Intent to Issue” contains a recommendation for issuance of both the permit required under part IV of chapter 373, F.S., Board of Trustees Agenda - August 28, 2001 Substitute Page Eleven *************************************************** Substitute Item 8, cont. 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 modify existing lease no. 110011195 by:(1) incorporating the 57,850-square-foot area from lease no. 110956205 into this lease; and (2) leasing an additional 48,178 square feet of sovereignty submerged lands.Lease no. 110011195 would then contain 157,899 square feet.Lease no. 110956205 would then be cancelled. Lease no. 110011195, containing 51,871 square feet, authorizes a 79‑slip commercial docking facility for an upland restaurant, ship's store, and retail shop.Private recreational, commercial fishing, and rental boats, ranging in length from 17 to 80 feet, historically used that facility.The lease was originally approved by the Board of Trustees on May 2, 1978.The lease has subsequently been renewed and modified to include unregistered grandfathered structures and to reflect changes in upland ownership.All of the structures were removed by the applicant pursuant to an environmental resource permit (no. 11-0141447-002) issued by DEP on October 1, 1999. Lease no. 110956025, containing 57,850 square feet, authorizes a partially, over-water restaurant and a 36‑slip commercial docking facility for an upland restaurant.The lease was originally approved by the Board of Trustees on May 6, 1980. The lease has subsequently been renewed and modified to include unregistered grandfathered structures and to reflect changes in upland ownership.All of the structures were removed by the applicant, pursuant to an environmental resource permit (no. 11-0141447-002) issued by DEP on October 1, 1999. There
will be four multi-slip docks:A, B, C, and D.Dock A is designed to
accommodate one 107-foot-long wet slip, seven 55-foot-long wet slips,
and nine 44-foot-long wet slips.Dock B is designed to accommodate
one 86-foot-long wet slip and eighteen 39-foot-long wet slips.Dock
C is designed to accommodate nineteen 39-foot-long wet slips.Dock
D is designed to accommodate one 107-foot-long wet slip, seven 55-foot-long
wet slips, and nine 44-foot-long wet slips. The docking facility
will have 72 designated wet slips and one temporary mooring slip,
for a total of 73 wet slips.This represents a reduction of 42 wet
slips from the 115 slips currently authorized by the two existing
leases. The
docking facility will be owned and operated as a private commercial
marina, in conjunction with the applicant's riparian upland commercial
marina property.A Development Agreement for this project, approved
by the city of Marco Island on September 21, 1998, limits use of the
docking facility to private recreational vessels.Access to the docking
facility will be limited to slip owners/lessees and their guests.Rental
boats, tour boats, charter boats, public gas or fuel sales, excursion
boats, boat sales, and public marina stores will be prohibited.The
boat slips may be sold or leased to any private boat owner wanting
to keep their boat at the docking facility, on a non-exclusive basis.The
upland marina property will include a dockmaster building and vehicle
parking.The dockmaster building will provide bathrooms, showers and
laundry facilities for marina patrons.The dockmaster will be responsible
for security of the boats, and for providing assistance to boat slip
owners/lessees.Fuel sales shall be also limited to wet slip owners/lessees
and their guests. Board of Trustees Agenda - August 28, 2001 Substitute Page Twelve ******************************************************** Substitute Item 8, cont. A standard condition in sovereignty submerged lands leases clearly states the Board of Trustees' interest in the lands being leased, as follows: Lessee shall make no claim of title or interest to said lands hereinbefore described by reason of occupancy or use thereof, and all title and interest to said land hereinbefore described is vested in the Lessor.The Lessee is prohibited from including, or making any claim that purports to include, said lands described or the Lessee's leasehold interest in said lands into any form of private ownership, including but not limited to any form of condominium or cooperative ownership.The Lessee is further prohibited from making any claim, including any advertisement, that said land, or the use thereof, may be purchased, sold, or re-sold.A
special lease condition will require the boat slip rental agreement
between the applicant and boat slip owners/renters to also clearly
state the Board of Trustees' ownership of the submerged lands at the
marina, and that the boat slip owner/renter does not obtain any ownership
of or prescriptive easement on sovereignty submerged lands.The purchase
agreement for each wet slip will also state that use of each slip
is subject to renewal of the lease by the Board of Trustees, and if
the lease is not renewed, use of the slip terminates. The Development Agreement authorizes a separate corporation -- Pier 81 Development Corporation -- to own and operate a 76-unit condominium (Pier 81 Condominium) currently under construction adjacent to the landward side of the upland marina property.The upland marina property and associated docking facility will be operated separately from the condominium.The Development Agreement states that purchasers of residential units in the adjacent Pier 81 Condominium will be allowed to lease or purchase boat slips at the marina.This is reflected in the Planned Unit Development (PUD) approval that is incorporated into the Development Agreement. The Declaration of Condominium for Pier 81 Condominium does not contain any language pertaining to use of the docking facility.However, it states that there is an easement in favor of the Pier 81 Condominium association allowing unit owners pedestrian access to a boardwalk adjacent to the condominium property and located on the Marco River.The Declaration of Condominium further provides that each unit owner will have the right to use and enjoy the boardwalk. Pursuant
to section 18-21.004(4)(a), F.A.C., the 76-unit condominium would
be limited to 27 wet slips, if the docking facility was proposed to
be used in conjunction with the condominium.To ensure that the docking
facility is consistent with the rule, a special lease condition has
been included to prohibit the applicant from selling or leasing more
than 27 slips to owners of Pier 81 Condominium units.Another special
lease condition will require the applicant to provide annual reports
to DEP containing the names and addresses of all unit owners in Pier
81 Condominium and of all boat owners using the docking facility,
along with the vessel registration numbers of all vessels using the
docking facility.These conditions are consistent with previous Board
of Trustees actions pertaining to these types of projects. The applicant also proposes to construct a non-water dependent boardwalk/deck along the shoreline.Approximately 7,750 square feet will be on sovereignty submerged lands, and the remainder will be on privately-owned submerged lands by virtue of Board of Trustees' Deed No. 17921.The proposed boardwalk/deck will be 546 feet long.One hundred seventy-six linear feet of the boardwalk/deck will extend 12 feet onto sovereignty submerged lands, 200 linear feet will extend between 12 and 24 feet onto sovereignty submerged lands, and Board of Trustees Agenda - August 28, 2001 Substitute Page Thirteen ******************************************************** Substitute Item 8, cont. approximately 170 linear feet will extend between 5 and 10 feet onto sovereignty submerged lands. Section 18-21.004(1)(d), F.A.C., limits activities on sovereignty lands, ..to water dependent activities only unless the board determines that it is in the public interest to allow an exception as determined on a case by case evaluation.Public projects which are primarily intended to provide access to and use of the waterfront may be permitted to contain minor uses which are not water dependent if: 1. located in areas along seawalls or other nonnatural shorelines; 2. located outside of aquatic preserves or class II waters; and 3. the nonwater dependent uses are incidental to the basic purpose of the project, and constitute only minor nearshore encroachments on sovereign lands."The proposed boardwalk/deck is not a public project because the applicant is not a governmental entity.Therefore, the rule criteria allowing for exceptions to the prohibition on non-water dependent uses would typically not apply to this project. The
applicant is requesting that the Board of Trustees evaluate and approve
the boardwalk/deck based on its consistency with the exceptions in
the rule.The proposed boardwalk/deck is consistent with exception
1, because historic dredging, filling and placement of seawalls and
riprap have altered the shoreline.The proposed boardwalk/deck is partially
consistent with exception 2, because, although located in class II
waters, it is not located within an aquatic preserve, and the class
II waters are not approved for shellfish harvesting.The proposed boardwalk/deck
is consistent with exception 3, because it is incidental to the proposed
docking facility (four percent of the preempted area) and would extend
out over sovereign lands no more than about ten percent of the overall
facility.In contrast, the previously existing non-water dependent
restaurant in lease no. 110956205 preempted 11,515 square feet of
sovereignty submerged lands, and extended 50 feet onto sovereignty
submerged lands.That structure was substantially damaged by fire in
the mid-1990s, although the decking remained substantially intact
and therefore could have been maintained pursuant to rule.The restaurant
was subsequently removed by the applicant pursuant to a regulatory
Noticed General Permit (no. 11-0127755-001) and proprietary consent
of use issued by DEP on September 4, 1997.On balance, DEP recognizes
that there is a public interest benefit from reducing the size of
the non-water dependent use of sovereignty submerged lands.Board of
Trustees' approval of the proposed boardwalk would constitute a determination
that the proposed structure is in the public interest, pursuant to
the rule. Section 18-21.011(1)(b)6, F.A.C., states that "The annual lease fees for restaurants and other nonwater dependent uses shall be negotiated by the Department or water management district staff.In negotiating the annual lease fee, the Department or water management district staff will consider the appraised market rental value of the riparian upland property and the enhanced property value, benefits, or profit gained by the applicant if the proposed lease is approved."The Board of Trustees have previously approved a modified lease fee of ten times the base lease rate for several different leases containing non-water dependent structures/activities.Therefore, DEP recommends that the ten times rate be approved for the proposed non-water dependent boardwalk.The current lease rate multiplied by a factor of ten would result in an annual lease fee of $9,424 at today's rate for the proposed boardwalk.The applicant has agreed to pay this modified lease rate for the structure. DEP's environmental resource permit will authorize fueling facilities and sewage pumpout facilities, which are authorized in existing lease no. 110011195 and will remain authorized in the modified lease.The environmental resource permit and the modified lease will prohibit liveaboards.However, the environmental resource permit will authorize overnight occupancy Board of Trustees Agenda - August 28, 2001 Substitute Page Fourteen *************************************************** Substitute Item 8, cont. of
vessels.Therefore, the lease will include a special lease condition
to authorize vessels to be occupied on an overnight basis. Specific
conditions in the environmental resource permit will require the applicant
to develop and implement a Marina Operations Plan acceptable to DEP
prior to commencement of construction of the docking facility.The
Marina Operations Plan will require:a dockmaster to be present daily;
fuel spill containment equipment; sewage pumpout facilities; and training
for marina staff in all phases of marina operations. Recommendations from the Florida Fish and Wildlife Conservation Commission (FFWCC), Bureau of Protected Species Management, regarding protection of manatees have been addressed in DEP's environmental resource permit and/or in the lease.In addition, Collier County has an approved manatee protection plan.FFWCC has stated that the proposed project appears to be consistent with the approved manatee protection plan. A proposed special lease condition will require the applicant to ensure that the purchaser/renter of any slip at the docking facility enters into a signed agreement, between the lessee and the purchaser/renter, stating that the slip purchaser/renter agrees to comply with the speed zones contained in the Collier County Manatee Protection Plan, or any revisions adopted by Collier County and approved by FFWCC, and/or any speed zones established by the city of Marco Island and approved by FFWCC. The
proposed project will be located within the 25-foot setback area from
the adjacent riparian lines on both sides of the project.The applicant
has obtained a waiver from the affected adjacent property owner to
the south.A special approval condition requires the applicant to obtain
a setback waiver in a format acceptable to DEP from the affected adjacent
property owner to the north. The current modified lease request was not required to be noticed due to an exemption for lease modifications, pursuant to section 253.115(5)(i), F.S. A June
13, 2001 inspection showed that each of the leased docking facilities
had been removed.Prior to removal of the facilities, each lessee was
in compliance with the respective lease. 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 was in compliance.The proposed action is consistent with the adopted comprehensive plan according to a letter received from the city of Marco Island. (See Attachment
8, Pages 1-44) RECOMMEND DEFERRAL *************************************************** |
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