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AGENDA *************************************************** Item 1 Cominsky Easement/Blackwater River State Forest REQUEST: Consideration of a request for a non-exclusive, 30-foot-wide (0.72-acre, more or less) private access and utility easement to Leon J. and Susan L. Cominsky over state-owned land in Okaloosa County within the boundary of Blackwater River State Forest. COUNTY: Okaloosa APPLICANT: Leon J. and Susan L. Cominsky LOCATION: Section 25, Township 06 North, Range 24 West CONSIDERATION: $550, plus $100 worth of seed and fertilizer STAFF REMARKS: Mr. and Mrs. Leon J. Cominsky own about 30 acres within the boundary of Blackwater River State Forest which they acquired on April 17, 1992. In late 2001, they applied for an access and utility easement because they have no legal access to their property which is bordered on three sides by private land and on the fourth side by state-owned land. Although the Cominskys have two existing easements providing them access across adjacent private lands, neither easement connects with a public or private road. The requested easement, as surveyed, runs 1,042.53 feet generally southeastward along the centerline of an existing graded service road from the point where the easements on the private land abut state forest land. Telecommunication lines will be buried in the roadway to provide service to the Cominsky's residence. The Board of Trustees holds title to the service road in fee simple, and the Department of Agriculture and Consumer Services, Division of Forestry (DOF), as managing agency of Blackwater River State Forest under Board of Trustees' Lease Number 3686, maintains the roadway to state forest standards. Should the Cominskys want that part of the road within the easement maintained to a higher standard, they will be responsible for the extra maintenance and for coordinating the timing of said maintenance with state forest staff. Although state forest staff allows the public to use the service road, banks and mortgage and utility companies do not consider it as a "public" road because it is not dedicated to Okaloosa County. Because of this, Mr. and Mrs. Cominsky, who intend to apply for a loan to build a residence, have applied for a recordable easement as a means of documenting their legal access to their property. The land
on which the easement is proposed was donated to the state by the federal
government in 1955 for use as a state forest. As such, it is considered
natural resource (conservation) land. The proposed easement meets the
requirements of chapters 18-2.018(1), 18-2.018(2), 18?2.018(3)(d), and
18-2.020(4), F.A.C., the rules governing the Board of Trustees' issuance
of upland easements. Additionally, staff has found the easement to: (1)
be in the public interest; (2) not be incompatible with the major or primary
purpose for which the lands were acquired; (3) have no practicable alternative
that would have less adverse impact on Board of Trustees acquired lands
or public use thereof; and (4) provide a net positive benefit to the particular
lands on which the proposed use is to be located. This road is the most
practical route because it is already built and environmental impacts
are minimal. DOF expects the main impact of the easement to be limited
to branch trimming. Mr. and Mrs. Cominsky have agreed to a DOF request
that they provide $100 worth of seed and fertilizer for road stabilization
within Blackwater River State Forest as a net positive benefit to the
state forest under the Incompatible Use Policy. *************************************************** Item 1, cont. DOF supports the request for the 30-foot-wide easement provided that: (1) the easement runs along the centerline of the state forest road; (2) the road remains open to public access by issuance of a nonexclusive easement; (3) the applicant understands that the road is maintained to DOF standards and any additional improvements are borne by the applicant; and (4) no exotic species are introduced with fill material used to maintain the easement. The easement was valued at $550. The broker's opinion of value was reviewed and approved by a DSL staff appraiser. DSL staff opted for a broker's opinion of value instead of an appraisal in accordance with DSL policy to request a broker's opinion of value when appraisal fees would be substantially greater than the appraised value of an easement. 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. A compliance agreement between DCA and the local government has been finalized. The proposed easement is consistent with the goals, objectives and policies of the adopted Okaloosa County Comprehensive Plan. (See Attachment 1, Pages 1-15) RECOMMEND APPROVAL *************************************************** Item 2 Brevard County Option Agreement/Brevard Coastal Scrub Ecosystem Florida Forever Project REQUEST: Consideration of an option agreement to acquire 928.66 acres within the Brevard Coastal Scrub Ecosystem Florida Forever project from Brevard County. COUNTY: Brevard LOCATION: Sections 22 through 27, 34 through 36, Township 29 South, Range 37 East; and Sections 19, 20 and 29 through 32, Township 29 South, Range 38 East CONSIDERATION:
$2,460,475
* The Approved
Values were adjusted to reflect a decrease in the acreage after the owner
removed a portion of the property *************************************************** Item 2, cont. STAFF REMARKS: The Brevard Coastal Scrub Ecosystem project is an "A" group project on the Florida Forever Interim Report Small Parcels Project List approved by the Board of Trustees on January 29, 2002. The project contains 11,124 acres, of which 993.17 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement, 9,202.17 acres, or 83 percent of the project will remain to be acquired. Pursuant to a multi-party acquisition agreement entered into between Division of State Lands (DSL) and Brevard County (County), the County has contracted to acquire or has purchased parcels from various owners in the Valkaria, Ten Mile Ridge, South Babcock and Micco Expansion (subdivided) sites. Brevard County is acquiring the properties pursuant to its multi-party acquisition agreement with DSL and will complete the transactions prior to the Board of Trustees' option expiration date. The option agreement was approved by the Brevard Board of County Commissioners on May 7, 2002. If this item is approved, the Board of Trustees will reimburse the County for the lesser of 100 percent of the approved value or 100 percent of the County's purchase price. In no event will the purchase price exceed 100 percent of the approved value. The County will provide a title insurance policy and an environmental site assessment prior to closing. The Board of Trustees shall reimburse the County 50 percent of the DSL approved cost of the owner's title insurance policy and environmental site assessment contingent upon a sale of the property to the Board of Trustees. A survey will be provided by DSL prior to closing. 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 an appropriate resolution for any title issues that arise prior to closing. The strip of coastal scrub that once paralleled the Indian River in Brevard County is now threatened by residential development. The Brevard Coastal Scrub Ecosystem project will help preserve the best remaining habitat, thus helping to ensure the survival of the endangered scrub jay and scrub itself in the County, and providing areas where the public can learn about and appreciate this unique landscape. The property in the Valkaria and South Babcock sites of the project will be managed by the County as a wildlife and environmental area with limited passive recreation and environmental education. The property in the Ten Mile Ridge and Micco Expansion sites will be managed by the Fish and Wildlife Conservation Commission as a part of the Salt Lake Wildlife Management Area. 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 2, Pages 1-54) RECOMMEND APPROVAL *************************************************** Item 3 WGML Investments & PRN Real Estate and Investments Option Agreement/South Brevard Trail Connector Greenways and Trail Florida Forever Project REQUEST: Consideration of an option agreement to acquire 14.72 acres within the South Brevard Trail Connector Greenways and Trails Florida Forever project from WGML Investments and PRN Real Estate and Investments. COUNTY: Brevard LOCATION: Section 26, Township 28 South, Range 37 East CONSIDERATION: $150,000 (Board of Trustees' share of the total purchase price of $300,000)
* $10,190
per acre for the Board of Trustees' purchase price - $20,380 per acre
for the total purchase price STAFF REMARKS: The South Brevard Trail Connector has been identified on the Department of Environmental Protection (DEP), Office of Greenways and Trails' (OGT) Florida Forever approved acquisition list. Pursuant to a multi-party acquisition agreement (MPAA) among DEP's Division of State Lands (DSL), OGT, Brevard County and the City of Palm Bay, this acquisition was negotiated by DSL on behalf of OGT under the Florida Forever Greenways and Trails program. The project, which contains only 14.72 acres, will be complete after the Board of Trustees approves this agreement. There are two well water pump facilities owned by the City of Palm Bay Utilities Department located within the boundaries of the property along with two access easements approximately 15 feet in width leading to the pumps. A 0.03-acre area for well site "A" and a 0.02-acre area for well site "B" have been cut out of the acquisition. OGT and the City of Palm Bay, the future managing agencies, have determined that these facilities will not adversely affect management. The appraiser took these facilities, the limited development radius around the facilities and the easements into consideration in the determination of value. 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 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 an appropriate resolution for any 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 OGT prior to closing. Under the terms of the MPAA, Brevard County is responsible for 50 percent of the purchase price and 50 percent of the pre-acquisition costs incurred by OGT for appraisal maps, appraisals and title work as well as 50 percent of the environmental site assessment and title policy. This acquisition
furthers the Office of Greenways and Trails' mission, which is "To
facilitate the establishment of a statewide system of greenways and trails
that provides all Floridians and visitors public access to a greenway
or trail within 15 minutes of their home, workplace, or tourist destination."
This parcel is key to the attractiveness and completeness of the much
longer South Brevard Linear Trail. It adjoins Turkey Creek Sanctuary to
the west and Turkey *************************************************** Item 3, cont. Creek and Briar Creek to the northwest. This parcel is under threat of development and this acquisition will preserve the land as public open space that has historically been used for off road bicycle and hiking trails and canoeing. This project will provide the following recreational activities: hiking, bicycling, canoeing, running, historical study, birding, nature trails/study, and scenic overlooks. These trails will be part of a larger system that will also support equestrian uses. OGT will be the interim manager of the property with the City of Palm Bay as the long-term manager. The property will be managed as part of the South Brevard Linear Trail. 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 Keen's Corner, Inc. Option Agreement/South Tampa Greenway Greenways and Trails Florida Forever Project REQUEST: Consideration of an option agreement to acquire 14.25 acres within the South Tampa Greenway, Greenways and Trails Florida Forever project from Keen's Corner, Inc. COUNTY: Hillsborough LOCATION: Section 16, Township 30 South, Range 18 East CONSIDERATION: $1,152,000
* $80,842
per acre STAFF REMARKS: The South Tampa Greenway has been identified on the Department of Environmental Protection (DEP), Office of Greenways and Trails' (OGT) Florida Forever approved acquisition list. Pursuant to a multi-party acquisition agreement (MPAA) between the DEP's Division of State Lands (DSL), OGT, and the City of Tampa (City), this acquisition was negotiated by the City on behalf of OGT under the Florida Forever Greenways and Trails program. The project contains 111.05 acres, of which 5.18 acres have been acquired. After the Board of Trustees approves this agreement, 91.62 acres or 82 percent of the project will remain to be acquired. All mortgages
and liens will be satisfied at the time of closing. There is a 30-foot-wide
drainage easement in favor of Hillsborough County that runs along the
western boundary line of the property. A railroad right-of-way easement
in favor of Seaboard System Railroad, Inc., was located on the property
but existing information indicates that the tracks were never constructed
and the easement is no longer valid. Further research is underway to determine
the current status and location of the railroad right-of-way easement.
At this time, the *************************************************** Item 4, cont. easements do not appear to negatively impact the value or adversely affect the management of the property. 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 an 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 OGT prior to closing. The seller will reimburse the cost of the title insurance, up to one percent of the purchase price for the cost of the environmental site assessment, and up to $1,500 for the cost of the survey. This acquisition furthers the Office of Greenways and Trails' mission, which is "To facilitate the establishment of a statewide system of greenways and trails that provides all Floridians and visitors public access to a greenway or trail within 15 minutes of their home, workplace, or tourist destination." This project is a critical component of the larger South Tampa Greenway that, upon completion, will provide 15 miles of safe trails. It will ultimately connect to the Friendship Trail Bridge to the northwest, travel south to Picnic Island Park, across the northern boundary of MacDill Air Force Base, and north to the Bayshore Boulevard paved trail. Recreational opportunities within this project include hiking/walking, bicycling, running/jogging, birding, picnicking and nature study. The subject property is forested with a mixture of longleaf pines, live oaks, laurel oaks and cabbage palms. Due to rapid development, this type of natural community is becoming increasingly rare within the City of Tampa. OGT will be the interim manager of the property with the City as the long-term manager. The property will be managed as a paved recreational trail with associated amenities. 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 4, Pages 1-28) RECOMMEND APPROVAL *************************************************** Item 5 Port Hudson Marina L.L.C. Recommended Consolidated Intent REQUEST: Consideration of an application for (1) a five-year sovereignty submerged land lease containing 107,158 square feet, more or less, for a commercial marina docking facility and accessory docks associated with an upland commercial dry boat storage facility, restaurant and ship store; and (2) authorization for the placement of 330 cubic yards of riprap for shoreline stabilization. COUNTY: Pasco APPLICANT: Port Hudson Marina L.L.C. LOCATION:
Section 28, Township 24 South, Range 16 East, in Hudson Creek and a basin
(historically part of the Gulf of Mexico), Class III Waters, near the
town of Hudson, within the local jurisdiction of Pasco County *************************************************** Item 5, cont. Aquatic
Preserve: No CONSIDERATION: $37,130.08 representing (1) $16,689.86 as the initial lease fee computed at $0.1246 per square foot, and including the initial 25 percent surcharge payment; and (2) $20,440.22 as lease fees in arrears for the prior use of sovereignty submerged lands, which has been paid. Sales tax will be assessed pursuant to section 212.031, F.S., if applicable. Lease fees 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 "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 chapters 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, 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 expand an existing 86?wet slip commercial marina docking facility, presently used in conjunction with a 78-slip upland dry boat storage facility, fueling facility, restaurant and ship store, by constructing 16 additional wet slips, thereby creating an 102-wet slip facility (83 permanent and 19 temporary slips). The existing facility was constructed in the early 1970s by a predecessor in title without authorization from the Board of Trustees. The applicant applied to the DEP for a reconfiguration of the existing facility soon after assuming ownership of the facility in December of 1999. The current docking facility preempts 69,475 square feet. The proposed expansion and reconfiguration would add 37,683 square feet for a total preempted area of 107,158 square feet. The upland dry boat storage facility would expand by 108 dry slips for a new total of 186 dry slips. The entire marina would accommodate a total of 288 wet and dry slips. The applicant is proposing one boat ramp at the facility. As a result of a 20-foot setback restriction from the mean high water line, the number of parking spaces associated with boat ramp use would decrease. Vessels proposed for mooring at the marina include private recreational vessels, commercial fishing vessels and charter vessels. There are no gambling ships or "cruises to nowhere" existing or proposed at this facility. The marina is located within a basin that was created by dredging the shallow bottoms of the Gulf of Mexico in the 1960s. The basin is buffered by a spit of filled land bordering the open Gulf of Mexico. Ingress and egress between the Gulf of Mexico and the marina is via the Hudson Channel, a marked channel, also posted for manatees, that is intermittently shallow and constricted because of its rocky substrate. The Southwest District Office is currently reviewing an application by Pasco County to dredge the channel to make it consistently deep and wide. The applicant understands that if the channel dredging is not approved, the size of vessels occupying marina slips may be limited accordingly. In association
with the dry boat storage facility the applicant is proposing to accessory
floating docks to be used for staging of vessels and fueling. All existing
docks will be removed and replaced with the following: (1) nine 7-foot-
wide marginal docks of varying lengths totaling 1,545 feet; (2) one 1,030-foot-long
by 3-foot-wide marginal dock; (3) seventeen 16-foot-long by 4-foot-wide
finger piers; (4) one 16-foot- long by 7-foot-wide finger pier; (5) five
24-foot-long by 3-foot-wide finger piers; (6) two 60-foot-long by 7-foot-wide
terminal docks; and (7) fourteen 14-foot-long by 4-foot-wide access ramps.
The applicant is also proposing to place *************************************************** Item 5, cont. 330 cubic yards of riprap along 1,525 feet of the applicant's riparian shoreline extending approximately 3 feet into the waterbody. The applicant has paid $20,440.42 as lease fees in arrears for the prior use of sovereignty submerged lands for the period beginning December 21, 1999, the date the applicant acquired title to the riparian upland property, to May 21, 2002. No administrative fines have been assessed because the existing unauthorized structures were built by a predecessor in title. The DEP/WMD environmental resource permit requires sewage pumpout; prohibits liveaboards; and authorizes fueling facilities. Specific conditions in the permit also address measures the applicant must take to prevent or reduce impacts to water quality. They are as follows: (1) provision of a mobile, vehicle-mounted sewage pumpout facility, pumpout service by a marina staff member, and maintenance of a pumpout log; (2) dissemination of information in writing by the marina operator to all slip occupants regarding the availability of sewage pumpout facilities and the requirement to use them; and (3) posting of public information signs regarding the dangers and effects of dumping raw sewage into surface waters and the prohibition of the discharge of raw sewage from any vessel pursuant to Florida Statutes. Staff believes that these measures along with the applicant's conformance with current environmental resource standards for stormwater retrofitting and increased manatee awareness at the facility will significantly improve environmental conditions at the marina. There are no seagrasses or other resources at the site. The project was noticed as required, pursuant to section 253.115, F.S., and no objections were received by the end of the 30-day comment period. However, in a letter dated February 14, 2002, the Save the Manatee Club is recommending denial of the project to the U.S. Army Corps of Engineers (USACOE), because the U.S. Fish and Wildlife Service's, the Florida Fish and Wildlife Conservation Commission's (FFWCC), and the USACOEs' data indicate manatees would be at an increased risk of watercraft-related harassment, injury and death due to additional vessel traffic associated with a net increase of 105 slips (letter enclosed). The recommendations of the Fish and Wildlife Conservation Commission regarding protection of manatees have been addressed in the permit. Pasco County is not one of the 13 critical manatee protection counties identified by FFWCC. A special lease condition requires the lessee to ensure that the renter of any wet or dry slip at the facility enters into a signed agreement, between lessee and the renter, stating that the renter understands the potential danger that navigating vessels through the Hudson Channel poses to manatees due to shallow water depths, rocky substrate conditions and narrow constrictions. The renter shall agree to observe slow speed when navigating through the channel. 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 to be 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. A Zoning Petition Review
Report approved by the Pasco County Board of County Commissioners dated
December 18, 2001, stated that the project is consistent with the adopted
plan subject to conditions. RECOMMEND APPROVAL SUBJECT TO THE SPECIAL LEASE CONDITIONS AND PAYMENT OF $16,689.86 Board of
Trustees *************************************************** Item 6 Kendall R. Jones Campsite Lease REQUEST: Consideration of a request to reinstate a campsite lease for a term of 20 years and rebuild a stilthouse partially destroyed by the "No Name Storm" of 1993. COUNTY: Pasco CONSIDERATION: $910. 96 as the initial lease fee computed at the campsite lease rate of $910.96 per annum. Sales tax will be assessed pursuant to section 212.031, F.S., if applicable. STAFF REMARKS: The Board of Trustees' position on stilthouses was first developed in the 1960s when the Board of Trustees granted "campsite" leases to owners of existing unauthorized stilthouses in Biscayne Bay, the structures of which were damaged less than 50 percent of their value by a hurricane. In 1969, the Board of Trustees became aware of approximately 15 more stilthouses built offshore in Pasco County without authorization. These structures have also been severely damaged by a hurricane. Ultimately, 13 campsite leases in Pasco County, including the applicant's, were issued for five-year terms beginning in 1971. In 1976, these leases were renewed for a period ending July 1, 1999 without any right of renewal. In 1997, the Florida Legislature amended section 253.03, F.S., to provide owners of stilthouse structures with the right to apply for an extension of their lease if the following criteria are met: (1) owners have structures which are listed in or eligible for the National Register of Historic Places or the State Inventory of Historic Places; (2) owners have a submerged lands lease; or (3) have been grandfathered in until January 1, 1998. In 1999, the Legislature further amended section 253.03, F.S., to give stilthouse lessees the right to continue their submerged land leases provided the following criteria are met: (1) the structures must be maintained in good repair consistent with the guidelines for listing; (2) lessees are allowed to reconstruct, in the event the structure is damaged or destroyed, so long as the reconstruction is consistent with the integrity of the listed structure and does not increase the footprint of the structure; and (3) if a structure falls into a state of disrepair and the lessee is not willing to maintain it consistent with its listing, the state may cancel the submerged lands lease and either repair and maintain the property or require that the structure be removed from sovereignty, submerged lands. On September
9, 1998, the Board of Trustees, in light of the 1997 statutory amendment,
revised its position regarding stilthouse structures located on sovereignty
submerged lands throughout the state. The agenda item addressed existing
grandfathered stilthouse structures in Charlotte and Lee Counties and
the situation with six stilthouse structures located offshore of New Port
Richey in Pasco County that had been severely damaged by the "No
Name Storm" of 1993. Each of the six stilthouse structures had been
issued a campsite lease due to expire on July 1, 1999 without any right
of renewal. Each campsite lease contained a condition that stated that
the structure could not be rebuilt if it is damaged to the point that
the cost to rebuild the structure would exceed 50 percent of the structure's
value. Department of Environmental Protection (DEP) staff notified the
six lessees in early 1994 that their leases were being canceled, since
it appeared from site inspections that greater than 50 percent of the
structure's value was gone. In each case, the stilthouse itself was demolished
leaving essentially only the pilings. The lessees were also ordered by
DEP to remove all remaining pilings at their expense. Of the six lessees,
the applicant was the only one to comply with DEP's order, thus eliminating
all of the applicant's structure from sovereignty submerged. *************************************************** Item 6, cont. Upon receipt of a notice from DEP of their rights under the amended statute, four of the six lessees in Pasco County, who met the first two criteria stipulated in the statute, applied to the Board of Trustees for an extension of their campsite lease. The Board of Trustees approved the reinstatement of two of the four leases based on appraisals showing that the cost to rebuild the structures would not exceed 50 percent of the value of the structure. However, the applicant never received the certified letter from DEP in 1998, notifying him of the opportunity to apply for an extension of his campsite lease, as documented by the letter stamped "Return to Sender" found in DEP's file. Apparently, the letter was returned, because of a numerical transposition error in the address. The applicant is now applying for reinstatement of his lease and, as in the case of the two lessees whose lease reinstatements were approved by the Board of Trustees for lease terms of 20 years beginning July 1, 1999, has obtained a recent appraisal by the same certified appraiser that concludes that the cost to rebuild the structures does not exceed 50 percent of the value of the structure. This appraisal, approved by DEP's Bureau of Appraisal, was based on staff's 1993 post storm site inspection photographs showing the remaining pilings and a few cross members. The applicant is proposing to replicate the structure destroyed by the 1993 storm, with the exception of the roof, which will have a different design in order to better withstand hurricane winds. The applicant is also proposing to minimize impacts to the marine environment by enclosing all pilings with PVC jackets, which will avoid potential leaching of arsenic from treated wood pilings. Special lease conditions prohibit the lessee from converting the use of the structure to a new use, except as authorized by the lessor, and discharging sewage into the waterbody, unless a sewage disposal system approved by DEP is installed and all local, state and federal requirements are met for such facilities. Staff recommends that the Board of Trustees approve the applicant's request, since he meets both the criteria for being able to apply for a lease extension under the 1997 statutory amendment and the criteria utilized in the Board of Trustees' 1998 approval of the reinstatement of two similar stilthouse leases in Pasco County. Furthermore, the applicant was inadvertently denied due process by having never received notification of his right under the law to petition the Board of Trustees in 1998. In addition, the applicant was the only stilthouse lessee who complied with DEP's order to remove his structure. In similar circumstances, courts have held that, where one person has followed the law to his detriment and others have not, and DEP allowed them to retain their illegal structures, DEP's position was inequitable. Therefore, the applicant may have an equitable argument. Staff also recommends retroactive fees be waived, because proposal meets the criteria of section 18-21.011(1)(b)11, F.A.C., and because: (1) the applicant has complied with the Board of Trustees' statutes and rules; (2) the applicant has no Board of Trustees' orders to comply with; (3) there was no willful violation; (4) there is no need to deter future violations; (5) there are mitigating circumstances specific to this application; and (6) because no structures have existed at the site since DEP ordered them removed in early 1994. A consideration of the status of the local government comprehensive plan was not made for this item. The DEP has determined that the proposed request is not subject to the local government planning process. (See Attachment 6, Pages 1-15) RECOMMEND APPROVAL SUBJECT TO THE SPECIAL LEASE CONDITIONS AND PAYMENT OF $910.96; AND (2) WAIVER OF RETROACTIVE LEASE FEES Board of
Trustees *************************************************** Item 7 David C. Blackburn Purchase DEFERRED FROM THE MAY 21, 2002 AGENDA REQUEST: Consideration of an application for the purchase of an approximately 1,100-square-foot parcel of filled, state-owned, submerged lands. COUNTY: St.
Lucie County APPLICANT: David C. Blackburn LOCATION:
Section 01, Township 35 South, Range 40 East, Thumb Point, in the Florida
Atlantic Intracoastal Waterway, Class II waters, within the local jurisdiction
of St. Lucie County On September 30, 1992, DER's staff conducted a permit compliance inspection at the property and discovered that the seawall and riprap had been built approximately 11 feet waterward of the permitted location, flush with the adjacent seawalls, and backfilled with approximately 163-cubic yards of backfill material. The unauthorized placement of the seawall resulted in the filling of approximately 1,100-square feet of state-owned, submerged lands, in violation of the issued regulatory and proprietary authorizations. DNR could not have issued an authorization for the seawall in its current location, because the land upon which the seawall was constructed is state-owned, submerged lands. Following
unsuccessful staff enforcement efforts to resolve the regulatory and proprietary
issues, DER issued a Notice of Violation and Order for Corrective Actions
(NOV) to the applicant on November 29, 1993. After the applicant failed
to file a responsive pleading or request a hearing on the NOV, the DER
issued a Final Order (Order) to the applicant on June 1, 1994. This Order
directed the applicant to remove the seawall, riprap and backfill, and
reconstruct the structures as permitted. On June 30, 1994, the applicant
appealed the Order to the Fourth District Court of Appeals. On May 2,
1995, the Department of Environmental Protection (DEP) filed a Complaint
and Petition to Enforce DEP's Final Order with the 19th Judicial Circuit.
On July 12, 1995, the Fourth District Court of Appeals upheld the Order
in a per curiam opinion. *************************************************** Item 7, cont. Settlement discussions continued in 1995 and 1996. During these negotiations, the applicant claimed that the title to the filled lands was held by the City of Fort Pierce, but this claim was reviewed and subsequently disproved by DEP staff. In addition, the applicant alleged potential environmental harm if the seawall was removed. In light of the alleged title and potential environmental harm issues, DEP and the applicant executed a Consent Final Judgment (Judgement) that was entered by the Court in December 1996. This Judgement was intended to bring this contentious matter and unresolved issues to an end by allowing the applicant to choose his course of corrective action. The Judgment required the applicant to: (1) pay a fine for the regulatory violation; and either (2a) relocate the seawall, riprap and fill material and restore the shoreline in accordance with the original permit; or (2b) make application pursuant to chapter 18-21, F.A.C., for the purchase of the filled, state-owned, submerged land. Further, in light of the unresolved issues and in an attempt to resolve this contentious matter, DEP agreed in the Judgment that its Southeast District would recommend to the Board of Trustees that the lands be sold to the applicant for the sum of $15,000. The Board of Trustees is not obligated to follow that recommendation. While the applicant did pay the administrative fine and allegedly wrote a one page letter to DEP requesting to purchase the filled lands, the applicant neither removed the seawall and fill, nor submitted a proper application pursuant to section 18-21.013, F.A.C., to purchase the filled, state-owned, submerged lands. Consequently, DEP filed a Motion for Contempt, due to the applicant's failure to comply with the Judgment. However, the Court did not find the applicant in contempt. Instead, the Court determined that the terms of the Judgment were not clear as to which application in chapter 18-21, F.A.C., applied to the applicant. At a hearing on November 21, 2000, and via the Order dated January 25, 2001, the Court directed the applicant to either: (1) remove the seawall and fill and restore the shoreline in accordance with the permit; or (2) submit an application pursuant to section 18-21.013, F.A.C., to purchase the filled, state-owned, submerged lands. The applicant has since submitted a complete application to purchase the filled, state-owned, submerged lands. On January 23, 2001, the applicant filed a Motion for Relief from the Consent Final Judgment (Motion) alleging it is no longer equitable. The applicant identified the same unresolved issues [i.e. title and potential environmental harm] as the bases for the Motion. DEP believes the question of title has been resolved for the following reasons: the applicant represented to DEP that he is the riparian owner in his permit application, and the Court of Appeals upheld DEP's Final Order thus rendering the issue barred in future litigation by collateral estoppel. Additionally, staff has verified that the Board of Trustees' records do not reflect any deed to the City of Ft. Pierce. However, the Court deferred a ruling on the defendant's Motion until the Board of Trustees makes a determination on the application. The applicant's application to purchase the filled, state-owned, submerged lands pursuant to section 18-21.013, F.A.C., is the issue before the Board of Trustees. The sale of the filled lands must be found to be in the public interest, as required by section 253.115(2), F.S. Public interest is defined in section 18-21.003(40), F.A.C. as: "demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social and economic costs of the proposed action. In determining the public interest in a request for use, sale, lease, or transfer of interest in sovereignty lands or severance of materials from sovereignty lands, the board shall consider the ultimate project and purpose to be served by said use, sale, lease, or transfer of lands or material." DEP staff is of the opinion that the proposed sale is in the public interest in light of the following: the parcel does not lend itself to public use; the liability of managing a small, isolated, remnant parcel; and the cost and uncertainty of results through litigation. Therefore, DEP staff recommends the sale of the parcel. Board of
Trustees *************************************************** Item 7, cont. Section 18-21.013(3)(c)3, F.A.C., indicates DEP shall recommend that the purchase price for filled land be assessed at three times the present appraised value, since the unauthorized fill was placed by the applicant after June 11, 1957. A recent appraisal submitted by the applicant indicates the sale price, pursuant to section 18-21.013(3)(c)3, F.A.C., would be $52,800. However, in this case, DEP is bound by the Judgment to recommend that the parcel be sold to the applicant with a purchase price of $15,000. This amount was based on the assumed value of the filled land and is contained in the Judgment. While DEP is bound to recommend a purchase price of $15,000, the Board of Trustees is not obligated to follow that recommendation. Condition 2 of the terms of the Judgment states, in part, that "…the Southeast District will recommend to the Board that the lands to be sold to Blackburn for the sum of $15,000." Condition 3 of the terms of the Judgment states that if "the sale is approved by the Board of Trustees in accordance with the recommendation, Blackburn shall pay the purchase price within 30 days of the Board of Trustees approval." Condition 4 of the Judgment states that "If the sale is conditioned upon paying an amount greater than $15,000, Blackburn may elect to either pay the amount specified by the Board of Trustees, or restore the site [i.e. remove the seawall, riprap and fill and restore the shoreline to comport with the initial authorizations] as required by Paragraph 5." If the Board of Trustees decides not to approve the sale of the filled, state-owned, submerged lands, then the applicant is bound by the Judgment to remove the seawall and fill. Any restoration activity must comply with applicable DEP statutes and rules, including water quality and habitat protection criteria. DEP would monitor any restoration activity for compliance with, and enforcement of existing regulations. The proposed sale has been noticed, as required by section 253.115, F.S. Ninety-five property owners were specifically noticed and six objections were received. The objections addressed resident concerns about environmental impacts and degradation, mangrove destruction, arguments that the applicant should not gain the property improperly, concern that no mitigation has been required, and the general objection that the applicant should not benefit from the unauthorized location of the seawall. While these objections may have merit as individual issues, based on the current situation involving the legal requirements of the lawsuit pending before the Courts, staff maintains the recommendation for sale of the parcel to the applicant as stated in this item. A consideration of the status of the local government comprehensive plan was not made for this item. DEP has determined that land sales are not subject to the local government planning process. (See Attachment 7, Pages 1-24) RECOMMEND APPROVAL SUBJECT TO PAYMENT OF $15,000 FOR THE PURCHASE OF THE FILLED PARCEL *************************************************** Item 8 Chafin & Cason vs. BOT/DEP Settlement Agreement REQUEST: Consideration of a proposed settlement agreement in the case of Paul R. Chafin, Alva L. Chafin, Walter W. Cason, Jr. and Jacqueline Phelps Cason v. Board of Trustees of the Internal Improvement Trust Fund, Eighth Judicial Circuit (Levy County) Court Case No. 95-583-CA. APPLICANTS:
Department of Environmental Protection, Paul R. Chafin, Alva L. Chafin,
Walter W. Cason, Jr., and Jacqueline Phelps Cason *************************************************** Item 8, cont. LOCATION: Sections 11 and 12, Township 16 South, Range 15 East STAFF REMARKS: This litigation is the result of damage done to the Waccasassa Bay State Preserve by a contractor hired by the Chafins and Casons to harvest cabbage palm trees from their parcel adjacent to the preserve. The Chafins and Casons commonly own an approximately 200-acre parcel of land located in Levy County. The Chafins and Casons are land-locked by the Waccasassa Bay State Preserve and private landholders. The Circuit Court in and for Levy County ruled on September 12, 2000 that the Chafins and Casons were entitled to a statutory way of necessity, but left open all other issues of the Chafins and Casons claims. This case is presently set for trial on those issues, as they relate to the statutory way of necessity. This settlement agreement resolves all pending claims between the Chafins and Casons and the Board of Trustees. The Preserve is located on the seaward fringe of Gulf Hammock. The Gulf Hammock was once a hardwood forest that covered almost 100,000 acres in the region between the Suwannee and Withlacoochee Rivers. The Preserve is consists of mainly wet lowlands. The Preserve encompasses some of the last remnants of intact Gulf Hammock. Outside the Preserve, the hydric hammock is now pine plantation. Bordering the hydric hammock along the Gulf of Mexico are large expanses of tidal marsh. The tidal marsh is dissected by a number of tidal creeks and dotted with isolated islands of hydric hammock. The Preserve also contains many cultural resources. The portion of the Waccasassa River flowing through the Preserve has been designated an Outstanding Florida Waterway. The Board of Trustees purchased the area that is known as the Waccasassa Bay State Preserve in 1975 from the Georgia Pacific Company. The acquisition encompassed more than 19,000 acres. The Preserve now encompasses more than 35,000 acres. There are a number of parcels scattered throughout the Preserve that are held in private ownership and most are without deeded legal access, relying on existing trails through the park for access. The Chafins
and Casons acquired their parcel in 1987 without deeded legal access.
The Department of Environmental Protection's Division of Recreation of
Recreation and Parks serves as the managing agency for the Preserve. Subsequent
to the acquisition of the Preserve, the Chafins and Casons approached
the managing agency in 1988 regarding the historical access to their property.
The Division of Recreation and Parks indicated to the Chafins and Casons
that it did not intend to disrupt the historical access route at the time.
The letter also indicated that the "only way continued access can
be assured is through approval and execution of an easement…. That
would involve review…by the Department's Division of State Lands."
The letter also indicated that the approval of the Board of Trustees would
also likely be required. In 1992, the Chafins and Casons again approached
the Division of Recreation and Parks regarding the improvement of the
access in order to timber on their property. The Division of Recreation
and Parks indicated that it would not agree to the improvement of the
access because such improvement was contrary to the purposes of the Preserve.
The Division of Recreation and Parks also indicated that it would not
permit use of the access for timbering purposes. The Chafins and Casons
made no application to the Board of Trustees or to the Division of State
Lands subsequent to this denial. The Chafins and Casons, despite the prohibition,
utilized the access for timbering purposes following the "Storm of
the Century", and continued to use the access for the harvesting
of cabbage palms, thereafter. The evidence collected by investigators
indicated that little or no damage occurred during the timbering process,
based on the observations of an adjacent landowner and the conditions
of the access as used by the timbering company. However, the same adjacent
landowner denied the palming operation access through his property. The
damage over the new access point and the remainder of the access was extensive,
including the creation of large ruts, bogs, and extensive damage to the
wetlands in the area. *************************************************** Item 8, cont. Criminal charges were brought against the Chafins and Casons, along with the contractor. The Chafins and Casons were ultimately acquitted of the criminal charges. The palm harvester has admitted to being negligent in his activities on the land in his testimony during the criminal trial and in the deferred prosecution agreement, which was later dismissed. In 1995, the Chafins and Casons filed a lawsuit alleging that they were landlocked by the Preserve owned by the Board of Trustees, and therefore, entitled to a statutory way of necessity and injunctive relief to prohibit the Board of Trustees from denying them access to their property along the historical access route. The Board of Trustees has counterclaimed for trespass, injunctive relief, conversion and statutory enforcement under Chapter 373, Florida Statutes. Subject to the Board of Trustees' approval, the parties have agreed to the terms described extensively in the settlement agreement attached to this item. This agreement resolves all pending and future litigation, costs, attorneys' fees, and interest. The agreement also provides an important safety net to the Board of Trustees if full restoration is not ordered against the palm tree harvester in the Board of Trustees third party claim. This recommendation of approval is not to be construed as an admission of liability and is offered only for the purpose of negotiating a settlement of the current and potential litigation. Some of the more critical terms of the settlement agreement are: (1) the negotiated terms and conditions imposed on the use and maintenance of the way of necessity ordered by the court; (2) settlement in full of the Board of Trustees counterclaims, the Department of Environmental Protection's potential claims and the claims of Chafin and Cason; (3) a release by the Chafins and Casons of the Board of Trustees and DEP for any future claims arising from the transactions and occurrences set forth in the lawsuit; (4) a release by the Chafins and Casons for any and all interest, costs, and attorneys' fees; (5) a much needed grant of an access easement across the Chafins and Casons property in favor of the Board of Trustees; (6) the guaranteed restoration of the way of necessity damaged should no other person be held liable for the damages; (7) entry by the Chafins and Casons into a consent order for the restoration, which provides the Board of Trustees further assurances of restoration and provides the Chafins and Casons with much needed technical support from the Department of Environmental Protection, saving them substantial sums money in terms of hiring of experts and terms of time by avoiding the permitting and design process; (8) the dismissal with prejudice of conversion count and statutory enforcement count by the Board of Trustees; and (9) the dismissal with prejudice of the Chafins and Casons remaining allegations. The Department of Environmental Protection, Division of Recreation and Parks will continue to manage this property. The Department of Environmental Protection's Southwest District Office will assume responsibility for enforcement of and assistance with the consent order and restoration. (See Attachment 8, Pages 1-69) RECOMMEND APPROVAL OF THE SETTLEMENT AGREEMENT *************************************************** Item 9 Peter Miller, et al vs. BOT/DEP Settlement Agreement DEFERRED FROM THE MAY 21, 2002 AGENDA REQUEST:
Consideration of a proposed settlement agreement in the case of Peter
Miller, et al. v. Board of Trustees of the Internal Improvement Trust
Fund and Department of Environmental Protection, Seventh Judicial Circuit
(Volusia County) Court Case No. 96-5099-CA, through the purchase of approximately
573.9 acres of land within the Etoniah/Cross Florida Greenway Florida
Forever Project. *************************************************** Item 9, cont. APPLICANTS: Department of Environmental Protection, Division of State Lands, and Peter T. Miller, James T. Miller, John R. Miller, and Susan Eleanor Miller Thomas COUNTY: Putnam LOCATION:
Sections 14, 22, 23 and 27, Township 11 South, Range 24 East
*Excludes the value of the boat ramp STAFF REMARKS: The Etoniah/Cross Florida Greenway Project is a "B" Group project on the 2002 Interim Florida Forever Full Fee Project List approved by the Board of Trustees on January 29, 2002. This project contains approximately 47,217 acres, of which 21,262 acres have been acquired by the Board of Trustees. After the Board of Trustees approves this agreement, 25,381 acres or 54 percent of the project will remain to be acquired. The Millers commonly own an approximately 573.9-acre parcel of land located in Putnam County, including 293.2 acres of land flooded by the Rodman Reservoir, 153.1 acres of jurisdictional wetlands, and 127.6 acres of uplands and lake front property. The site extends some 16,800 feet along the Rodman Reservoir. The uplands are scattered throughout the site, are of limited depth, and in many cases are surrounded or isolated by jurisdictional wetlands. Approximately 539.9 acres of the 573.9-acre parcel is located within the barge canal taking area. In 1966, the Canal Authority of the State of Florida acquired the right to flood approximately 9600 acres of land in Putnam and Marion counties as part of the Cross-Florida Barge Canal Project. The Canal Authority obtained a Judgement of Condemnation, granting the state either fee simple title or perpetual flowage easements to flood private property "in connection with the construction, operation and maintenance of the Cross-Florida Barge Canal Project." In 1968, the Rodman Dam was completed and the land was flooded by the Rodman Reservoir. In 1990, Congress and the Florida Legislature adopted related legislation to deauthorize the Cross-Florida Barge Canal and to establish the Cross Florida Greenway in its place. The Cross-Florida Barge Canal was officially deauthorized on January 22, 1991, by adoption of a resolution by the Governor and Cabinet, which agreed, on behalf of the State of Florida, to the terms of the federal deauthorization. On March
19, 1996, the Millers, as fee title owners of property that was subject
to the state's flowage easement, filed an inverse condemnation lawsuit
alleging that the Board of Trustees and the Department of Environmental
Protection (DEP) have "taken their property without just compensation".
The Millers alleged that the state's flowage easement had terminated with
the deauthorization of the Barge Canal, and that the continued flooding
of their property constituted a "taking" for which just compensation
was owed. On May 5, 1997, the Circuit Court for Putnam County, Florida,
held that the flowage easement over the Millers' property had been terminated,
extinguished, and was otherwise null and void due to the Canal's deauthorization.
The Millers may have waited too long to file their "taking"
claim, and may be barred by the applicable statute of limitations depending
upon what date the Court finds the "taking" to have occurred.
If the Millers' "takings" claim fails, they may proceed against
the Board of Trustees and DEP under a trespass action, seeking damages,
costs, and attorney's *************************************************** Item 9, cont. fees for the continued flooding of the property. If the Millers can reach the merits of their inverse condemnation claim and succeed, the Board of Trustees may be liable for the value of all submerged lands together with whatever wetlands the Court determines to be flooded by the reservoir. The Millers may also be entitled to recover statutory interest from the date of the "taking", along with any severance damages, reasonable costs, and attorneys' fees. Subject to the Board of Trustees' approval, the parties have agreed to the acquisition of approximately 573.9 acres of the Millers' property for the purchase price of $900,000. This amount exceeds the appraised value of the property by $400,000, but resolves all pending and future litigation, costs, attorneys' fees, interest, and removes any question of a continuing trespass with continuing damages thereon. If the Millers succeed in their "takings" claim, the Court might instruct the jury to value the land as if it were dry, resulting in a much higher price-per-acre for the 293.2 acres of submerged lands and the 153.1 acres of wetlands, a portion of which would be drier than present. In short, the Board of Trustees' potential liability could well exceed the $400,000 added to the appraised value to resolve all pending and future litigation. Acquisition of this Miller property will accomplish the multiple objectives of acquiring lands identified for acquisition under the Florida Forever program, settling the ongoing litigation with the Millers, and fulfilling the legislature's directive to acquire fee simple title to less-than-fee holdings within the original Cross-Florida Barge Canal lands. In establishing the Cross Florida Greenway, the 1990 Legislature concluded that "public ownership of and access [to the lands within the former Cross-Florida Barge Canal] are necessary and desirable to protect the health, welfare, safety and quality of life of the residents of this state," and encouraged the acquisition of fee simple title to those portions of the Cross-Florida Greenway held in less-than-fee title. Accordingly, section 253.781(3), F.S., states that the Board of Trustees "may acquire by purchase, exchange of other state lands, or the exercise of the power of eminent domain the fee title to lands acquired in less-than-fee title… using state, local or federal funds dedicated to acquiring lands for conservation and recreation." Some of the more critical terms of the settlement agreement are: (1) purchase of fee simple title to approximately 573.9 acres of land adjacent to and underneath the Rodman Reservoir, the Cross Florida Greenway and the Carravelle Ranch Wildlife Management Area for the total purchase price of $900,000, in furtherance of the legislature's policy of acquiring fee simple title to all less-than-fee title holdings within the Cross Florida Greenway; (2) settlement in full of the pending trespass action arising from, or relating to, the flooding of the property; (3) a release by the Millers of the Board of Trustees and DEP for any future claims arising from, or relating to, the flooding of the property or its use as part of the Cross Florida Greenway; and (4) a release by the Millers for any and all interest, costs, and attorneys' fees. This recommendation of approval is not to be construed as an admission of liability and is offered only for the purpose of negotiating a settlement of the current and potential litigation. The purchase price also remains subject to adjustment based upon a final acreage calculation of the Peter Miller, et al. parcel. The purchase will be done consistent with section 259.041, F.S. The Office of Greenways and Trails will manage this property as a part of the Cross Florida Greenway. These acquisitions are consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan. RECOMMEND
DEFERRAL TO THE AUGUST 27, 2002 CABINET MEETING *************************************************** |
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