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AGENDA Item 1 Minutes Submittal of the Minutes from the October 30, 2001 and November 14, 2001 Cabinet Meetings. (See Attachment 1, Pages 1-22) RECOMMEND APPROVAL *********************************************** Substitute Item 2 Marco River Marina, Inc. Recommended Consolidated Intent REQUEST: Consideration of an application to modify an existing ten-year sovereignty submerged lands lease to increase the preempted area from 37,951 square feet to 102,880 square feet, more or less, for an existing commercial marina. COUNTY: Collier APPLICANT: Marco River Marina, Inc., a Florida Corporation 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 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., 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 modify an existing 21?slip commercial docking facility
by increasing: (1) the preempted area from 37,951 square feet to 102,880
square feet; and (2) the number of wet slips from 21 to 51. This expansion
is in conjunction with the existing upland marina, boat repair and 163-unit
dry storage facility. The docking facility will be used for private recreational
vessels, charter fishing vessels, and shuttle vessels taking passengers
to Key West. There are no gambling ships / "cruises to nowhere."
A minimum of 90 percent of all slips will be maintained on an open to
the public, first-come, first-served basis, and this requirement has been
included as a special lease condition. An additional 59 boat slips are
located in an existing privately owned, man-made basin. *********************************************** Substitute
Item 2, cont. On January 25, 1977, the Board of Trustees approved a sovereignty submerged lands lease containing 8,070 square feet, more or less. On June 2, 1981, the Board of Trustees approved a modified lease containing 14,270 square feet, more or less. On December 18, 1984, the Board of Trustees approved a modified lease containing 37,951 square feet, more or less. On February 22, 1995, DEP renewed the lease under a delegation of authority. On December 18, 1999, DEP again renewed the lease under a delegation of authority and modified the term of the lease from five to ten years pursuant to section 18-21.008(1), F.A.C., because 90 percent of the slips at that marina will be open to the general public on a first-come, first-served basis. The lease expires on December 18, 2009. An April 21, 2000 inspection by DEP revealed that the lessee had not installed the manatee informational display and awareness signs required by the 1995 lease renewal. The lessee subsequently installed the display, and no administrative fine was assessed for this violation. Since the awareness signs will be placed on the end of the docks that are proposed to be removed and replaced, a special lease condition requires sign installation within 60 days of completion of construction authorized by the Environmental Resource Permit. A November 21, 2001 inspection by DEP revealed that a 48-foot-long by 6-foot wide floating dock had been temporarily placed adjacent to the existing 203-foot-long by 6-foot-wide dock. The unauthorized dock was intended to replace one of the existing floating docks at the travel lift that had deteriorated with age. The unauthorized dock was installed and the old dock has been removed. No administrative fine was assessed for this violation since the unauthorized dock was installed within the existing lease area, did not provide additional boat slips, did not change the use of the docking facility, and was only temporary. The existing lease prohibits fueling facilities and liveaboards, but authorizes a sewage pumpout facility. DEP's environmental resource permit requires a sewage pumpout facility, prohibits liveaboards, and prohibits fueling facilities over sovereignty submerged lands, but authorizes fueling facilities in the man-made basin. The permit also incorporates several requirements designed to prevent and/or reduce water quality impacts, thereby resulting in a net improvement to water quality at the site. Those requirements include: (1) installation of a closed-loop recycled water system for the existing boat wash down area; (2) retrofitting existing storm water structures with filters to absorb hydrocarbons from vehicles parked at the marina; (3) development of a marina operations plan; (4) installation of a sewage pumpout facility for transient vessels having liveaboard capability; and (5) a requirement that CCA-treated pilings be wrapped with PVC sleeves to reduce leaching of CCA into the waterbody. Recommendations from the Florida Fish and Wildlife Conservation Commission (FFWCC) regarding manatee protection have been addressed in the specific conditions of the environmental resource permit or as special lease conditions in the lease. Additionally, Collier County has adopted and implemented a manatee protection plan. FFWCC has stated that the proposed project is consistent with the approved manatee protection plan. A proposed
special lease condition will require the lessee to ensure that the renter
of any slip at the docking facility enters into a signed agreement, between
the lessee and the renter, stating that the slip 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. *********************************************** Substitute Item 2, cont. 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 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 Marco Island. (See Attachment 2, Pages 1-41) RECOMMEND DEFERRAL TO THE MARCH 12, 2002 CABINET MEETING
Item 3 Bayhaven Enterprises, L.C. Recommended Consolidated Intent REQUEST: Consideration of an application for (1) after-the-fact authorization for a ten?year sovereignty submerged lands lease containing 108,780 square feet, more or less, for an existing unauthorized commercial marina; and (2) proposed modifications of the facility used in conjunction with an upland restaurant. COUNTY: Monroe APPLICANT:
Bayhaven Enterprises, L.C. LOCATION:
Section 31, Township 68 South, Range 25 East, in Key West Bight, Class
III Waters, within the local jurisdiction of the city of Key West CONSIDERATION: $93,328.67, representing (1) $12,093.32 as the initial lease fee for the water dependent portion of the facility computed at the base rate of $0.1216 per square foot, discounted 30 percent because of the first-come, first-served nature of the facility, and including the initial 25 percent surcharge payment; (2) $6,222.88 as the initial lease fee for the non-water dependent portion of the facility computed at ten times the base rate of $0.1216 per square foot, and including the initial 25 percent surcharge payment; (3) $70,012.47 as lease fees in arrears for the unauthorized use of sovereignty submerged lands pursuant to a Temporary Use Agreement (TUA), which has been paid; and (4) $5,000 as administrative fines for the unauthorized use of sovereignty submerged lands pursuant to the TUA, which has been paid. 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 *********************************************** Item 3, cont. 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 applicant is requesting: (1) after-the-fact authorization for an existing 48?slip commercial marina presently used in conjunction with an upland restaurant; and (2) authorization for proposed modifications to the facility. Vessels mooring at the facility include private recreational boats, commercial charter boats, and commercial tugboats; this will remain unchanged after approval of the requested lease. At least 90 percent of the proposed slips will continue to be open to the public on a first-come, first-served basis, in order to qualify for the ten-year lease and the 30 percent discount of the lease fee. This has been addressed as a special lease condition. The requested lease will include: an existing formerly registered grandfathered 10-foot-wide by 363-foot-long main access dock and associated mooring pilings; existing unauthorized structures consisting of a 7.5-foot-wide by 175-foot-long floating concrete terminal platform, an 8-foot-wide by 72-foot-long floating concrete dock, one set of cluster pilings, an 80-square-foot dockmaster building, and two 3-foot-wide by 20-foot-long finger piers; an existing 2,355-square-foot wooden boardwalk; a proposed 3-foot-wide by 40-foot-long finger pier; and a proposed 1,739-square-foot wooden boardwalk around the restaurant. The proposed boardwalk would have an 8-foot-wide by 151-foot-long section and a 6-foot-wide by 48-foot-long section. The proposed boardwalk is a non-water dependent structure. 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 by a case by case evaluation." DEP is of the opinion that the following factors make the proposed boardwalk in the public interest: (1) it will reduce crowding around the upland restaurant resulting from restaurant patrons, other boaters and pedestrian traffic around Key West Bight, thereby improving public safety; (2) it will connect to the applicant's existing boardwalk and the city of Key West's Harborwalk. The city's Harborwalk is intended to increase public access to the city's waterfront, thereby increasing tourism and associated economic activity in the city; (3) it will be constructed in an area that is devoid of submerged aquatic vegetation or other benthic resources because of historic dredging and filling activities, thereby entailing negligible resource impacts; (4) it will not be located in an aquatic preserve or class II waters; and (5) it will be incidental to the proposed docking facility (one percent of the preempted area) and would extend out over sovereignty lands no more than two percent of the overall facility. Therefore, DEP recommends approval of the proposed boardwalk. Section 18-21.011(1)(b)6,
F.A.C., states that "The annual lease fees for restaurants and other
non-water 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 has previously approved a modified
lease fee of ten times the base lease rate for several different leases
containing non-water dependent structures/activities. DEP recommends that
the ten times rate be approved for the existing and proposed non-water
dependent boardwalks. The current lease rate multiplied by a factor of
ten *********************************************** Item 3, cont. would result in an annual lease fee of $4,978.30 at today's rate for the 4,094-square feet preempted by the existing and proposed boardwalks. An approximately 10-foot-wide by 363-foot-long main access dock has existed at this site since before 1950. It was registered with the former Department of Natural Resources as a grandfathered structure (file number 440084). Pursuant to section 18-21.00405(1), F.A.C., registered grandfathered structures were required to come under lease on January 1, 1998, or upon conveyance of the riparian upland property. The applicant acquired title to the riparian upland property on March 31, 1997. The applicant has not converted the grandfather registration to a lease, because the applicant was, until recently, of the opinion that this structure qualifies for a Butler Act disclaimer from the Board of Trustees. The applicant filed a quiet title lawsuit against the Board of Trustees (case no. 97-884-CA-18, OGC no. 97-1466-C-44-SL) on August 18, 1997 seeking to obtain title to the lands beneath the entire docking facility. As a result of the Florida Supreme Court's decision in City of West Palm Beach v. Board of Trustees (no. 93-821, September 9, 1999), the applicant and DEP entered into a settlement agreement on October 26, 2001, in which the applicant dismissed the lawsuit and agreed to seek a disclaimer only for the footprint beneath whatever permanent improvements (essentially the main access dock) existed before repeal of the Butler Act and a sovereignty submerged lands lease for the remainder of the preempted area. The settlement agreement further provides that if the applicant and DEP cannot reach agreement on the disclaimer's exact location/dimensions, the Circuit Court of the 16th Judicial Circuit will resolve the disclaimer issue in accordance with Gagnon v. Board of Trustees, 730 So. 2d 814 (Fla. 2nd DCA 1999). As a result, the applicant has included the 3,630-square feet of submerged lands beneath the existing main dock in the requested lease. DEP recommends that this area be included in the lease until such time as the applicant obtains a Butler Act disclaimer for the affected submerged lands. If the Board of Trustees subsequently approves the Butler Act disclaimer, the lease will be modified accordingly after issuance of the disclaimer. DEP issued a wetland resource permit (no. 442766199) on October 3, 1995 for the installation of an 8-foot-wide by 70-foot-long concrete floating dock, relocation of three mooring pilings, and installation of four dolphin pilings at the docking facility. DEP erroneously issued a consent of use on October 13, 1995 for that activity. A sovereignty submerged lands lease for those structures and associated mooring areas should have been required, because of the revenue generating/income-related nature of the facility. On March 19, 1997, DEP issued a permit modification (file no. 443016045) authorizing installation of an approximately 15-foot-wide by 165-foot-long (2,355-square feet over sovereignty submerged lands) boardwalk along the eastern shoreline of the subject property and a 120-square-foot triangular shaped boardwalk/deck on the west side of the restaurant. The modified permit referenced the 1995 consent of use (file no. 442766199) and did not require the applicant to obtain a sovereignty submerged lands lease. A sovereignty submerged lands lease for the boardwalk should have been required, because of the revenue generating/income-related nature of the facility. On September
26, 1997, the applicant submitted an environmental resource permit (ERP)
application to DEP for a permit to construct a 6-foot-wide by 175-foot-long
floating concrete terminal platform to be located at the waterward end
of the existing main dock. The applicant did not obtain the required sovereignty
submerged lands lease because of the applicant's pending lawsuit against
the Board of Trustees. On February 18, 1998, DEP denied the permit (file
no. 44-0129209-001) for lack of information provided by the applicant.
The applicant subsequently constructed a cluster piling and the terminal
platform without the required regulatory and proprietary authorizations.
DEP began to prepare a regulatory consent order (#98-0366) and TUA to
address these violations. The draft consent order required the applicant
to pay DEP a $500 civil penalty, $250 in administrative costs, and a $2,500
administrative fine, which were paid prior to DEP's execution of the consent
order. Also before executing the consent order, *********************************************** Item 3, cont. DEP conducted an inspection of the docking facility on February 15, 2001. That inspection revealed that two additional floating docks and an approximately 80-square-foot dockmaster building had been installed without the required regulatory and proprietary authorizations. The draft consent order (#98-0366) was therefore revised to address these violations in addition to the previous violations, and was issued by DEP on March 13, 2001. The consent order required the applicant to pay a $600 civil penalty and a $2,500 administrative fine for these additional violations, which have been paid. A TUA was also issued to the applicant by DEP on April 24, 2001 for the period extending from March 31, 1997, the date the applicant acquired title to the riparian upland property, to September 30, 2001. The TUA includes all of the unauthorized structures. Pursuant to the terms of the TUA, the applicant paid $65,417.97 as lease fees in arrears. The TUA expired on September 30, 2001. However, the applicant has paid $4,594.50 as lease fees pursuant to the terms of the expired TUA from September 30, 2001 through January 29, 2002. On May 3, 1999, DEP received an application (no. 44-0129209-002) for an ERP to construct a wooden boardwalk and a 120-square-foot finger pier at the existing marina. DEP determined the application to be complete on January 24, 2001. DEP's deadline to take final agency action on the application was April 24, 2001; however, the applicant has provided a waiver of the deadline to take final agency action. DEP's deadline to take final agency action is now February 8, 2002. Section 18-21.0041, F.A.C., provides criteria for all applications for leases of sovereignty submerged lands in Monroe County for multi-slip docking facilities. The proposed project is consistent with that criteria. Section 18-21.0041(1)(b)5, F.A.C., requires that leases for new or expanded docking facilities for ten or more boats contain a special lease condition requiring the lessee to maintain water quality standards as provided by chapter 403, F.S. This has been addressed as a special lease condition requiring the lessee to maintain a water quality monitoring program approved by DEP. DEP's ERP authorizes sewage pumpout facilities, liveaboards and fueling facilities. The permit will also require the applicant to maintain a pump-out logbook for all sewage pump-out stations. Recommendations
from the Florida Fish and Wildlife Conservation Commission (FFWCC) regarding
manatee protection have been addressed in the permit and/or the lease.
Monroe County is not one of the 13 critical manatee protection counties
identified by FFWCC. In the event
that any part of any structure authorized hereunder is determined by a
final adjudication issued by a court of competent jurisdiction to encroach
on or interfere with adjacent riparian rights, Lessee agrees to either
obtain written consent for the offending structure from the affected riparian
owner or to remove the interference or encroachment within 60 days from
the date of the adjudication. Failure to comply with this paragraph shall
constitute a material breach of this lease agreement and shall be grounds
for immediate termination of this lease agreement at the option of the
Lessor. *********************************************** Item 3, cont. 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. (See Attachment 3, Pages 1-37) RECOMMEND APPROVAL OF A 108,780-SQUARE-FOOT SOVEREIGNTY SUBMERGED LANDS LEASE SUBJECT TO THE SPECIAL LEASE CONDITIONS, AND PAYMENT OF $18,316.20 *********************************************** Item 4 David G. & Rita Law Lease Revocation DEFERRED
FROM THE SEPTEMBER 11, 2001 AGENDA REQUEST: Authorization to revoke an existing 25-year sovereignty submerged lands lease containing 30,296 square feet, more or less. COUNTY: Collier APPLICANT: Department of Environmental Protection (DEP) LOCATION:
Section 18, Township 52 South, Range 27 East, in Blue Hill Creek, Class
II Waters, within the local jurisdiction of Collier County STAFF REMARKS: This request was presented for Board of Trustees' consideration on September 11, 2001, because of the lessee's flagrant and repetitive violations of the lessee's sovereignty submerged lands lease, Florida Statutes, and Florida Administrative Codes. At that meeting, the Board of Trustees deferred action on the DEP's request until November 14, 2001. That deferral was recommended by DEP to provide DEP, the lessee, and the lessee's representatives additional time to enter into a Consent Final Judgment to resolve the lessee's violations. The negotiations between the parties were not finalized by November 14, 2001; therefore, DEP recommended deferral of this request until the January 29, 2002 meeting of the Board of Trustees. DEP, the lessee, and the lessee's representatives have been diligently working to complete the agreement. While the agreement addresses most of the significant issues, outstanding technical details of the agreement remain. DEP anticipates that these details will be worked out to the satisfaction of all parties by early February. Therefore, DEP again recommends that the Board of Trustees defer action on DEP's request until March 12, 2002. RECOMMEND
DEFERRAL TO THE MARCH 12, 2002 CABINET MEETING *********************************************** Item 5 2002 Florida Forever Interim Report/Interim Priority List REQUEST: Consideration of (1) the 2002 Florida Forever Interim Report of the Acquisition and Restoration Council; and (2) the 2002 Florida Forever Interim Priority List. STAFF REMARKS: The 2002 Florida Forever Interim Report (Report) was prepared pursuant to chapter 259, F.S., and rule 18-24, F.A.C. During the Acquisition and Restoration Council (ARC) meetings of April 6, May 17, July 12, September 13, October 25 and December 6, 2001, ARC added five projects, removed two projects, combined eight projects and amended the boundaries of eleven projects on the Florida Forever Priority List. The Report includes the 2002 Florida Forever Interim Priority List of Florida Forever projects approved by ARC and proposed for adoption by the Board of Trustees. In addition, the Report includes the Project Evaluation Reports of the five new projects that were added to the Priority List: Babcock Ranch (Charlotte and Lee Counties); Okeechobee Battlefield (Okeechobee County); Northeast Florida Blueway, Phase II (St. Johns County); Kissimmee-St. Johns River Connector (Okeechobee and Indian River Counties); and Northeast Florida Timberlands and Watershed Reserve (Duval, Nassau, Clay and Putnam Counties). Another project was evaluated but not added to the list [Holopaw Ranch Addition (Osceola County)]. Final action on this project was deferred until management issues can be resolved. Maps and descriptions of eleven other projects whose boundaries were modified are also included in the Report. Eight projects were combined. Myakka Estuary (Sarasota and Charlotte Counties) was combined with Cape Haze/Charlotte Harbor (Charlotte County) because they are adjacent components of an estuarine ecosystem that are primarily composed of small holdings. The newly combined project was renamed 'Charlotte Harbor Estuary.' The other six projects are recombinations of projects that were split into two or more projects because of acquisition issues. These issues are no longer applicable under the new Florida Forever program. Thus, North Key Largo Hammocks, less-than-fee was combined with North Key Largo, full fee (Monroe County); Green Swamp, full fee was combined with Green Swamp, less-than-fee (Lake and Polk Counties); and Florida's First Magnitude Springs, Group B (Bay and Washington Counties) was combined with Florida's First Magnitude Springs, Group A (Jackson, Lafayette and Hernando Counties). Two projects were removed from the list because they are being acquired or have been acquired under another program: Southwest Florida Water Management District is pursuing acquisition of the Liverpool Park project (DeSoto and Charlotte Counties), while Suwannee River Water Management District acquired a conservation easement on the California Swamp project (Dixie County). To induce greater competition between landowners and to better match anticipated acquisition success with available funding, the size of the list of Group A projects was increased by moving eighteen Group B projects to Group A. ARC based its decision on which projects to move from Group B to Group A on relative resource values using the Florida Forever goals and measures, on the amount of local support using public testimony and correspondence, and on the willingness of owners to sell their land to the state. The eighteen projects moved from Group B to Group A include: Apalachicola River (Liberty, Gadsden and Jackson Counties); Archie Carr Sea Turtle Refuge (Brevard and Indian River Counties); Brevard Coastal Scrub Ecosystem, Mega parcels (Brevard County); Caloosahatchee Ecoscape (Hendry and Glades Counties); Catfish Creek (Polk County); Estero Bay (Lee County); Etoniah/Cross Florida Greenway (Putnam, Marion, Clay, Levy and Citrus Counties); Fakahatchee Strand (Collier County); North Key Largo Hammocks (Monroe County); Perdido Pitcher Plant Prairie (Escambia County); Pineland Site Complex (Lee County); St. Joe Bay Buffer (Gulf County); Spruce Creek (Volusia County); Terra Ceia (Manatee County); Three Chimneys (Volusia County); Volusia Conservation Corridor (Volusia County); Wacissa/Aucilla River Sinks (Jefferson and Taylor Counties); and Watermelon Pond (Alachua and Levy Counties). The boundaries
of eleven projects were amended to facilitate resource protection, land
management, ecological restoration, connectivity with other managed areas,
or land *********************************************** Item 5, cont. acquisition. These projects include: Bombing Range Ridge (Polk County); Brevard Coastal Scrub Ecosystem (Brevard County); East Everglades (Palm Beach); Etoniah Cross Florida Greenway (Marion County); Lake Wales Ridge Ecosystem (Highlands County); Panther Glades (Hendry County); St. Joe Timberlands (Jefferson, Taylor and Gulf Counties); Upper Econ Mosaic (Orange County); Wacissa/Aucilla River's Sink (Jefferson County); Wakulla Springs Protection Zone (Wakulla County); and Wekiva/Ocala Greenway (Lake County). The 2002 Florida Forever Interim Priority List is consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan. The Interim Report was submitted under separate cover. (See Attachment 5, Pages 1-2; 2002 Interim Report submitted separately) RECOMMEND ACCEPTANCE OF THE 2002 FLORIDA FOREVER INTERIM REPORT AND APPROVAL OF THE 2002 FLORIDA FOREVER INTERIM PRIORITY LIST *********************************************** Item 6 Bender/Partin/Fussell Option Agreements/Green Swamp Area of Critical State Concern/Green Swamp Florida Forever Project REQUEST: Consideration of three option agreements to acquire perpetual conservation easements over 1,076.96 acres within the Green Swamp Area of Critical State Concern and the Green Swamp Florida Forever project from Sylvia S. Bender, Marshall B. Partin, Clyde H. Fussell and Deanna Fussell. COUNTIES: Polk and Lake LOCATION: Sections 24 and 25, Township 24 South, Range 25 East; Sections 04 and 09, Township 23 South, Range 24 East; Section 01, Township 27 South, Range 24 East; and Section 36, Township 26 South, Range 24 East CONSIDERATION:
$739,900
* A portion
was acquired in 1980 for $20,000 per stamps on deed and a portion was
inherited in 1991. STAFF REMARKS:
Effective July 1, 1999, the legislature transferred all activities performed
by the Green Swamp Land Authority to the Department of Environmental Protection
(DEP) as provided in section 51, chapter 99-247, Laws of Florida. The
Green Swamp Area of Critical State Concern contains 322,690 acres, of
which 31,626 acres are protected by, or under agreement to be protected
by, land protection agreements or conservation easements. After the Board
of Trustees approves these agreements, 289,986 acres, or 90 percent of
the area, will remain to be acquired. These acquisitions also lie within
*********************************************** Item 6, cont. the Green Swamp Florida Forever project boundary, which contains 276,165 acres, of which 27,053.22 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves these agreements, 248,034.82 acres, or 90 percent of the Green Swamp Florida Forever project, will remain to be acquired. The properties under the proposed conservation easements will allow the owner to retain certain rights which include but are not limited to the following: ·
Cattle grazing and improved pasture for all parcels; The properties under the proposed conservation easements will be restricted in perpetuity by the following provisions of the easements, which include, but are not limited to, the following: ·
New residential structures will be prohibited for Parcel 4B; All mortgages and liens will be satisfied or subordinated at the time of closing. In the event the commitments for title insurance, to be obtained prior to closing, reveal any other encumbrances which may affect the value of the properties or the proposed management of the properties, staff will so advise the Board of Trustees prior to closing. Surveys of the properties have been completed and will be updated prior to closing. Title insurance policies, environmental site assessments and easement documentation reports will be provided by the purchaser prior to closing. The mosaic
of cypress swamps, pine forests, and pastures known as the Green Swamp
is a vital part of the water supply of Central Florida. This region gives
rise to four major river systems (the Withlacoochee, Oklawaha, Hillsborough
and Peace) and, because it has the *********************************************** Item 6, cont. highest groundwater elevation in the peninsula, is important for maintaining the flow of water from the Floridan Aquifer. Preservation by acquiring certain rights to the properties located within the area will protect the Floridan Aquifer and the headwaters of several rivers, and preserve a large area for wildlife. The Department of Environmental Protection's (DEP) Office of Environmental Services will be the interim monitor for the conservation easements until such time that DEP staff has determined a permanent monitor. 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 6, Pages 1-104) RECOMMEND APPROVAL *********************************************** Item 7 The Nature Conservancy Charitable Trust Assignment of Option Agreement/St. Joseph Bay Buffers Florida Forever Project REQUEST: Consideration of the acceptance of an assignment of an option agreement to acquire 3,442.15 acres within the St. Joseph Bay Buffers Florida Forever project from The Nature Conservancy Charitable Trust. COUNTY: Gulf LOCATION: Sections 01, 12, 13, 14 and 24, Township 09 South, Range 11 West; and Sections 07, 08 and 17 through 19, Township 09 South, Range 10 West CONSIDERATION: $4,800,000 (Board of Trustees' share of the $4,873,000 purchase price)
* The Board
of Trustees' price per acre is $1,394. STAFF REMARKS: The St. Joseph Bay Buffer project is an "A" group project on the Florida Forever 2002 Interim Report Full Fee Project List being presented to the Board of Trustees on this agenda. The project contains 7,841 acres, of which 2,115 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement, 2,285.1 acres or 29 percent of the project will remain to be acquired. Pursuant
to a multi-party acquisition agreement entered into between the Division
of State Lands (DSL) and The Nature Conservancy, Inc., (TNC), TNC has
acquired an option to purchase this property from Treasures Shores Limited
for $4,873,000. Because the purchase price of this important parcel exceeds
the state's approved value, TNC will not receive any overhead and will
contribute $73,000 in order to complete the acquisition. In addition,
a 1.25-acre cattle dipping vat that was cut out of an adjacent parcel
previously acquired from Treasures Shores Limited will be transferred
to the Board of Trustees. *********************************************** Item 7, cont. The property is improved with an eight-unit, 5,389-square-foot lodge. Department of Environmental Protection's (DEP) Office of Coastal and Aquatic Managed Areas (CAMA), the future managing agency, supports the acquisition of the lodge facility, located on approximately five acres along the shoreline of the St. Joe Bay Aquatic Preserve. This facility will help in the management of both the buffer preserve and aquatic preserve by serving as a remote office for staff. The facility will provide a workspace for volunteer partners from the local community and may serve as a meeting space for related projects. As state acquisitions increase in the region, so does the opportunity for public recreation, mostly in the form of multiple trails. The lodge site is more than adequate to accommodate horse trailers and to serve as a launching site for equestrian trail use. The concept of using the lodge facility as an environmental learning center in partnership with local schools and area community colleges, or eco-tours with a local private concession contractor, is also viable. The Gulf Coast Community College has expressed a desire to partner with the Apalachicola National Estuarine Research Reserve to support the education and research activities for the general area. 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 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 title insurance policy will be provided by seller. A survey, an environmental site evaluation and, if necessary, an environmental site assessment will be provided by the purchaser prior to closing. The property creates excellent buffer zones for Money Bayou and Depot Creek, which both drain into the Apalachicola Bay, St. Vincent Sound, and the Gulf of Mexico. The property also adds to the buffer for the St. Joseph Bay. These outstanding aquatic resources contain essential sea grass beds, oyster bars and salt marsh and have the water quality necessary for sustained commercial and recreational uses. The pine flatwoods, swamps, and scrub on the shore of St. Joseph Bay, with their concentration of rare plants, have largely escaped the residential development that is filling the nearby coast with vacation homes. The St. Joseph Bay Buffer project will protect the water quality and productive seagrass beds of the bay by protecting the undeveloped land around and in it, in so doing also ensuring the survival of dozens of rare plants, protecting one of the best preserved archaeological sites in northwest Florida, and giving the public opportunities to enjoy the natural beauty of the bay. This property will be managed by CAMA as an addition to the St. Joseph Bay 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 1-52) RECOMMEND
APPROVAL *********************************************** Substitute Item 8 Hunt Camps Proposed Standard Lease Terms/Delegation of Authority/ Everglades Water Conservation Areas 2 and 3 REQUEST: Consideration of (1) approval of the proposed standard lease terms and conditions and the fee schedule for 27 hunt camps located within Everglades Water Conservation areas 2 and 3 and which are located on Board of Trustees' property; and (2) delegation of authority to negotiate the final lease terms and conditions and execute the leases, so long as the final lease terms are substantially consistent with those approved by the Board of Trustees. COUNTIES: Miami-Dade and Broward LOCATION: Everglades Water Conservation Areas 2 and 3 STAFF REMARKS: The 2000 Florida legislature passed a law, section 253.03(7)(d), F.S., that requires the state to issue a lease to each of the hunt camp owners within the Everglades Water Conservation Areas 2 and 3. These hunt camps are typically houses and other habitable structures built without authorization on property belonging to the Board of Trustees and the South Florida Water Management District (SFWMD). In Everglades Conservation Areas 2 and 3 there are 77 hunt camps; 9 are on private lands, 27 are on Board of Trustees land, 17 are on SFWMD land and 24 are on Miccosukee Indian Reservation land. It is the intent of the legislation that all of the camps on public lands be brought under lease. To be entitled to a lease on hunt camps that existed on or before May 1, 1999, the hunt camp owners were required to notify the SFWMD by January 1, 2001. The SFWMD has confirmed that all the camps were in place on or before May 1, 1999. The law states that the timely remittal of the notification automatically grants to the hunt camp owner a 20-year lease. The law further states that the lease shall terminate no later than January 1, 2020. Therefore, the term of the leases will be January 1, 2000, to January 1, 2020. At the expiration of the 20-year lease, the Department of Environmental Protection (DEP) shall have the option to renew the leases or require the lessees to remove the structures. DEP has coordinated with the SFWMD to draft the terms and conditions of the proposed lease so that there is a consistency of lease terms and fees among all lessees on public lands. While this item is for the 27 camps on Board of Trustees lands, the Division of State Lands (DSL) is considering entering into an agreement with the SFWMD, subject to SFWMD governing board approval, to administer the leases on the 17 camps located on SFWMD property. If DSL administers these SFWMD leases, DSL will collect and be entitled to the lease fees from the SFWMD leases. These fees will be deposited into the Internal Improvement Trust Fund. If this item is approved by the Board of Trustees, a copy of the proposed lease agreement will be sent to each hunt camp owner along with a letter informing them of a public meeting scheduled for the first week of March 2002. Typically, staff would have leases executed by the lessee prior to bringing them to the Board of Trustees. Because of the uniqueness of this situation; however, staff feels that it is appropriate to receive approval from the Board of Trustees prior to proceeding with the owners. After meeting with the owners there may be some modifications to the lease terms; therefore, staff is requesting delegated authority from the Board of Trustees to finalize these leases. The annual lease fee for these leases will be $850 per year with a 2.75 percent increase each year. The increase is based upon a five-year average of the consumer price index and is consistent with other leases approved by the Board of Trustees. The lease fee is based on appraisal information and stilt house leases previously approved by the Board of Trustees. In the year 2002, the payment will be $1,747.40, which is $850 in arrears for the first year plus $897.40 ($873.38 plus the 2.75 percent increase) for year three. In the year 2003 the payment will be year two in arrears ($873.38) plus year four ($897.40 plus the 2.75 percent increase), totaling $1,819.48. If this item
is approved: *********************************************** Substitute Item 8, cont. ·
Lessee will be responsible for installing a self-contained sewage composting
system; In summary, the requested lease: (1) is in compliance with the requirements of section 253.03(7)(d), F.S.; (2) will safe guard against further expansion into Water Conservation areas 2 and 3; and (3) will allow for the protection of the state's resources. (See Attachment 8, Pages 1-28) RECOMMEND APPROVAL *********************************************** Substitute Item 9 City of Crystal River Quitclaim Deeds REQUEST: Consideration of a request to issue quitclaim deeds to three parcels of filled, formerly submerged, sovereignty land to the City of Crystal River for public purposes. COUNTY: Citrus LOCATION: Crystal River, Florida CONSIDERATION: $820 STAFF REMARKS: The City applied under section 253.12(6), F.S., and section 18-21.019(2), F.A.C., for a quitclaim deed to three parcels of filled, formerly submerged, sovereignty lands totaling 0.42 acre in the city limits for public purposes. Section 253.12(6), F.S., provides in pertinent part that "[w]here any person, state agency, county, city, or other political subdivision prior to June 11, 1957, extended or added to existing lands or islands bordering on or being in the navigable waters…by filling in or causing to be filled in such lands, the board shall upon application therefor convey said land so filled to the riparian owner or owners of the upland so extended or added to." The riparian
property and the filled lands to be quitclaimed have a complex history.
The uplands are adjacent to Kings Bay and within the city limits of Crystal
River. The 1894 plat of "Crystal City Addition" shows that the
parcels in question were below the mean high water line of Crystal River.
Title to these lands was vested in the state by virtue of its sovereignty.
In 1953, the City Council voted to allow a local developer, Major Woodward,
to dredge and fill the submerged lands at the western end of NW Third
Avenue (now NW Third Street). The developer's nephew, Donald McBride,
obtained dredge and fill permits in 1953 from the Board of Trustees and
the U.S. Army Corps of Engineers (Corps) to dredge the sovereignty lands
west of NW Third Avenue and south of the uplands to the north; to place
the fill on the sovereignty lands adjacent to the uplands; and to build
a pier on the sovereignty lands to the *********************************************** Substitute Item 9, cont. west of the fill. (At that time, no Board of Trustees' authorization was needed for the pier.) McBride proceeded to fill the lands in a 30-foot to 60-foot wide strip stretching 300 feet from NW Third Street to the West into Kings Bay. The City subsequently leased the filled lands to McBride and his associate, Mr. McQuarrie, for the next 25 years. It is not clear why the City thought it owned the filled lands, but staff has been advised that in about 1954, a state senator from Inverness had been contacted to assist the City in obtaining title to the filled lands; however, the Board of Trustees' minutes between 1950 and 1975 reflect no such conveyance to the City or to any other person. During that 25 years, McBride and McQuarrie built a pier adjacent to the filled lands and subleased various parcels to other private individuals and companies, some of whom also built structures on and adjacent to the fill, such as fish houses, boat houses and docks. The sublessees also conveyed their interests to other persons. The lease between the City and McBride/McQuarrie expired in 1978; however, the development and subleasing by individuals continued until 1987. All of the development (except that shown on the Board of Trustees' dredge and fill permit) on and adjacent to the fill between 1953 and 1987 took place without the Board of Trustees' knowledge or authorization. In 1987, the Department of Environmental Protection (DEP), formerly Department of Natural Resources, became aware that the Board of Trustees held title to these filled lands and that the Board of Trustees had not authorized some of the activities on the fill and the adjacent sovereignty lands. Upon learning of the Board of Trustees' concern, the City applied for a sovereignty submerged lands lease for the lands under the pier. At that time, DEP determined that the City was ineligible for the lease because it had not shown a sufficient title interest in the adjacent uplands (to the north) and because certain title issues were in litigation. In the mid-1990's, the City filed a prescriptive plat under section 95.361, F.S., to the extension of NW Third Street over the fill, showing its intention to permanently maintain the extension as a City street, and barring the claims of all private parties to the extension. In 1999, the City obtained approval for a Florida Recreation Development Assistance Program (FRDAP) grant from DEP for $100,000 to develop the filled area for public outdoor recreation purposes. However, prior to disbursing any of the funds to the City for the city park, the Division of Recreation and Parks learned that the City did not own the filled lands. FRDAP grants require ownership, a long-term lease, or other sufficient control of the property to enable a local government to construct the project and to dedicate the park in perpetuity for public outdoor recreation purposes. The City cannot meet this requirement until it purchases the filled lands from the Board of Trustees. In 2000,
the City and DEP met, and DEP agreed that the issues raised by DEP in
1987 had been sufficiently resolved for the City to proceed with an application
to purchase the filled lands (after which it may obtain any sovereignty
land authorizations necessary). DEP determined that the Butler Act did
not apply to the subject lands, since the act was repealed in May 1951
for Citrus County. The City filed an application to purchase the filled
lands in 2001 and subsequently provided all of the information required
by section 253.12(6), F.S., and section 18-21.019, F.A.C., to prove its
eligibility for a quitclaim deed to all of the filled lands. The City
addressed the riparian rights issues, showing that it owns all riparian
rights to the pre-fill uplands on the north and east of the filled parcels.
The lands would be deeded by quitclaim deed to the City at a cost of $820,
the appraised value of said lands as they existed prior to the filling,
as required by section 253.12(6), F.S. The lands would be conveyed in
three parcels to facilitate development with future grants. After the
City receives the quitclaim deeds, it will apply to DEP's District office
for a sovereignty submerged lands lease for the pier and any other structures
below the current mean high water line outside of the deeded areas. Under
these unique and special circumstances, DEP believes that this conveyance
would be in the public interest because of the City's plans to maintain
the public road and to develop a public waterfront park. *********************************************** Substitute Item 9, cont. There are two local residents who assert a claim of ownership to the subject lands. Mr. and Mrs. Toms believe that they have title to the lands stemming from three quitclaim deeds. In 1988, Patricia Phillips (one of the former sublessees) quitclaimed to Mr. Toms "the dock at the end of Third Avenue . . . with the buildings thereon, together with all the rights, titles, claims, and interests it may have to the underlying land and adjacent property dredged and filled [in accordance with the Corps permit of 1953]. . . ." In 1988, McBride and McQuarrie each quitclaimed their interest to Mr. Toms to a forty-foot by forty-foot area at the western end of NW Third Street (Parcel B). However, none of the grantors of those deeds had any real property interest in the land. All of the persons and structures occupying the subject lands were squatters on sovereignty land. DEP has met with Mr. and Mrs. Toms on several occasions between 1987 and 2001 to address the title issues. Staff carefully evaluated each of their claims, but none of the facts that they presented proved that they had any title interest in the filled lands. Further, Mr. and Mrs. Toms have litigated with the City and DEP/Board of Trustees in several cases, all of which were dismissed with prejudice on the Toms' title claims. Mr. and Mrs. Toms were finally barred from asserting any more claims of ownership to the filled property by both state and federal courts by 1994. Nevertheless, the Toms have continued to assert ownership to the filled lands. They have filed applications for disclaimers and a certificate of fill subsequent to 1994, but their applications were denied because they did not comply with the Board of Trustees' statutes and rules. No consideration of the County Comprehensive plan is needed for this project. (See Attachment 9, Pages 1-26) RECOMMEND APPROVAL *********************************************** Item 10 BOT/Christian Church in Florida, Inc. Exchange Agreement DEFERRED FROM THE NOVEMBER 27, 2001 AGENDA REQUEST: Consideration of (1) a determination that a 0.5165-acre, more or less, parcel of Board of Trustees' land no longer needs to be preserved in furtherance of the intent of the Florida Preservation 2000 Act; (2) a determination that the 0.5165-acre, more or less, parcel of Board of Trustees' land is no longer needed for conservation purposes; and (3) an exchange agreement under which the Board of Trustees would convey the 0.5165-acre, more or less, parcel of Board of Trustees' land to the Christian Church (Disciples of Christ) in Florida, Inc., (Church) in exchange for a 1.033-acre, more or less, parcel of land owned by the Church. COUNTY: Marion APPLICANT: Christian Church (Disciples of Christ) in Florida, Inc. LOCATION: Section 31, Township 14 South, Range 23 East; and Section 06, Township 15 South, Range 23 East CONSIDERATION:
Value for value [The Church will deposit $1,550 into the Preservation
2000 Trust Fund to compensate the Board of Trustees for the difference
in value.]
*********************************************** Item 10, cont. STAFF REMARKS: The Office of Greenways and Trails (OGT) and the Church requested an exchange of 0.5165 acre of state-owned property for 1.033 acres of Church-owned property. The state-owned parcel is part of a 630-acre tract which was acquired on July 10, 1998, under the Preservation 2000 Program from Silver Run Properties, Inc., and is currently managed by OGT as part of the Marjorie Harris Carr Cross Florida Greenway. According to OGT, the state-owned parcel is approximately 50 feet by 450 feet and has been used as an athletic field for more than 40 years. On December 19, 2000, the Acquisition and Restoration Council (ARC) recommended surplusing the state-owned property to be exchanged with the Church. Stephen J. Albright, Sr., MAI, SRA, and State-Certified General Real Estate Appraiser, appraised the property on January 16, 2001. Mr. Albright estimated the market value of the 1.033-acre Church-owned parcel at $7,750 and the 0.5165-acre state-owned parcel at $9,300, indicating a difference in value of $1,550. If approved, this exchange will accomplish the following: · It will result in a net positive conservation benefit because the state will receive 0.5165 more acres of environmentally sensitive land, plus $1,550, in the proposed exchange. · According to OGT, the state will gain 1.033 acres of property that is more environmentally significant than the 0.5165 acres of state-owned land. · The 1.033 acres the state will receive in the exchange are in a natural condition, and possess lush vegetation with a dense canopy of loblolly pine, sabal palm, bay and magnolia trees, and border the floodplain area of the Silver River. Authorization to exchange Board of Trustees-owned uplands requires meeting the directives outlined as follows: 1. Pursuant to section 253.42, F.S., the Board of Trustees may exchange lands held or owned by, or vested in, said board for other lands in the state owned by private individuals or corporations; and fix the terms and conditions of any such exchange, and select and agree upon the lands to be conveyed by said board; and the lands to be conveyed to said board in exchange therefore; and agree upon and pay or receive, as the case may in the judgment of said board require, any sum or sums of money deemed necessary by said board for the purposes of equalizing the values of such exchanged property, and make and enter into contracts or agreements for such purpose or purposes. 2. Pursuant to section 18-2.018(3)(b)7., F.A.C., every exchange of natural resource lands shall result in the Board of Trustees acquiring a minimum of twice the amount of acreage being conveyed out of state ownership. 3. Pursuant to section 253.034(6), F.S., and Article X, section 18 of the Florida Constitution, the land is no longer needed for conservation purposes and will result in a net positive conservation benefit. 4. Pursuant to section 253.115, F.S., property owners within 500 feet of the subject property as the owner's name and address appears on the latest county tax assessment roll must be noticed of this proposed exchange. *********************************************** Item 10, cont. The above requirements have been met as indicated below: ·
The transaction between the Board of Trustees and the Church meets the
requirements of section 253.42, F.S., because this will be a value-for-value
exchange. The value assigned the parcels currently owned by the Board
of Trustees is its appraised value of $9,300. The value assigned to the
parcel currently owned by the Church is its appraised value of $7,750.
At closing, the Church will pay the Board of Trustees $1,550, which is
the difference in value between the parcels being exchanged. ·
This transaction also complies with section 253.034(6), F.S., and Article
X, section 18 of the Florida Constitution because on December 19, 2000,
ARC declared this state-owned parcel of 0.5165 acres as no longer being
needed for conservation purposes. The 1.033 acres the state will receive
in the exchange is in a natural condition and borders the floodplain area
of the Silver River. The state-owned property has been fenced, maintained
and used by the Church as an athletic field with the permission of the
previous owner. OGT considers the 1.033 acres of the Church property to
be more environmentally significant than the 0.5165 acres of state-owned
land. All mortgages and liens on the parcel to be received by the Board of Trustees will be satisfied at the time of closing. The Board of Trustees will reserve the oil, gas and mineral rights, if any, on the parcel it is conveying to the Church. The Church will not reserve the oil, gas and mineral rights, if any, on the parcel it is conveying to the Board of Trustees. 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 Church will bear the costs of a title insurance policy, a survey, an appraisal and an environmental site assessment for the Church-owned parcel. In summary, the requested exchange: (1) is in compliance with the requirements of sections 253.42, F.S., 253.034(6), F.S. and Article X, section 18 of the Florida Constitution; (2) will result in the Board of Trustees acquiring twice the amount of acreage being conveyed pursuant to section 18-2.018(3)(b)7., F.A.C.; (3) will result in a net positive conservation benefit since the state will receive 0.5165 more acres of land and $1,550 in the proposed exchange; and (4) does not require public notice since the only property owners within 500 feet of the proposed land exchanged are the Church and the state. DEP has determined that surplus land sales are not subject to the local government planning process. The acquisition of the Church parcel is consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan. RECOMMEND WITHDRAWAL |
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