The Governor and Cabinet - Florida Department of State

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Item 1 Minutes

Submittal of the Minutes from the September 30, 2003 Cabinet Meeting.

(Attachment 1, Pages 1-3)

RECOMMEND APPROVAL

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Item 2 WCI Communities Inc. & Communities Finance Corporation, LLC Recommended Consolidated Intent

DEFERRED FROM THE SEPTEMBER 30, 2003 AGENDA

REQUEST: Consideration of an application for a 25-year extended term sovereignty submerged lands lease containing 64,027 square feet, more or less, for a proposed private multi-slip, residential docking facility.

COUNTY: Palm Beach

Permit No. 50-05176-P

Application No. 020621-15

APPLICANTS: WCI Communities, Inc. & Communities Finance Corporation, LLC

(One Watermark Marina)

LOCATION: Section 22, Township 43 South, Range 43 East, in Lake Worth Lagoon, Class III Waters, within the city of West Palm Beach

Aquatic Preserve: No

Outstanding Florida Waters: No

Designated Manatee County: Yes, without a manatee protection plan

Manatee Aggregation Area: No

Manatee Protection Zone: Yes - Slow Speed, 25 MPH on Intracoastal Waterway, year round

STAFF REMARKS: In accordance with rules adopted pursuant to sections 373.427(2) and 253.77(2), F.S., this �Recommended Consolidated Notice� contains a recommendation for denial of both the permit required under part IV of Chapter 373, F.S., and the authorization to use sovereignty submerged lands under Chapter 253, F.S. The Board of Trustees is requested to act on those aspects of the activity which require authorization to use sovereignty submerged lands. If the Board of Trustees approves the request to use sovereignty submerged lands and the activity also qualifies for a permit, the South Florida Water Management District (District) 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, the District will issue a �Consolidated Notice of Denial.�

The applicants are proposing to construct a 22-slip private multi-slip, residential docking facility (facility) to be used in conjunction with an upland 48-unit condominium (One Watermark Place) currently being constructed on the adjacent riparian uplands. The residential facilities located on the riparian uplands were previously authorized by permit 50-05176-P. The facility is for exclusive use by the residents of the condominium. The proposed facility will preempt approximately 74,861 square feet of submerged lands within the Lake Worth

Board of Trustees

South Florida Water Management District

Agenda � October 28, 2003 Page Two

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Item 2, cont

Lagoon, of which 64,027 square feet are sovereignty submerged lands, and the remaining 10,834 square feet are privately-owned submerged lands. The facility will accommodate private recreational vessels ranging in size from 46 to 100 feet in length. The project area has sufficient water depth to accommodate the proposed vessels that will be using the facility, thus no dredging or filling other than that associated with piling and decking installation is proposed. No liveaboard vessels, nor fueling or pump-out facilities are proposed, or will be authorized, at the site.

The project is not expected to have adverse impacts to natural resources. No seagrasses, or other significantly productive marine bottom were observed during site inspections. Coordination with the Florida Fish and Wildlife Conservation Commission (FFWCC) indicates that manatees, while occurring within this general area, would not be adversely impacted by the proposed marina, provided the applicants implement the manatee protective measures recommended by FFWCC. Palm Beach County is a designated manatee county without an approved manatee protection plan. FFWCC has stated, �while a significant amount of effort was made in the 1990�s on development of a plan, no significant progress has been made to complete the process in recent years.�

The docking facility, as proposed, is considered an �ownership oriented� facility, pursuant to section 18-21.004(4)(a), F.A.C., and therefore, must meet specific rule criteria to be approved. Pursuant to section 18-21.004(4)(a)(1), F.A.C., the unit to slip ratio for the upland 48-unit condominium development limits the proposed facility to: (1) a maximum of 20 slips; or (2) the total preemption of sovereignty submerged lands to 16,872 square feet, whichever is less. The applicants propose 22 slips and the preemption of 64,027 square feet of sovereignty submerged lands, which is not consistent with the rule.

Also, pursuant to section 18-21.004(4)(a)7, F.A.C., the applicant is required to place a conservation easement or other restriction along the affected riparian shoreline to prohibit additional docking facilities. On September 18, 2003, the applicant provided an Easement Agreement in lieu of a standard proprietary conservation easement to meet the criteria outlined in section 18-21.004(4)(a)7, F.A.C. The proposed Easement Agreement does not meet the intent of the section because: (1) the instrument does not include all of the affected riparian shoreline; and (2) the Board of Trustees is not a grantee or a beneficiary of the Easement Agreement, and therefore has no enforcement rights. Therefore, the applicant does not comply with this section requirement.

Pursuant to section 18-21.008(1), F.A.C., standard lease terms are for a five-year period. The applicants are requesting a 25-year extended term lease. Section 18-21.008(2)(a), F.A.C., provides for extended term leases for uses of sovereignty submerged lands for periods up to 25 years, where the applicant demonstrates that: (1) the facility provides access to public waters or sovereignty submerged lands for the general public on a first-come, first-served basis; (2) the facility is constructed, operated or maintained by government, or funded by government secured bonds with a term greater than or equal to the requested lease term; or (3) the extended term is necessary to satisfy unique operational constraints. The applicants have not met the requirements of section 18-21.008(2)(a), F.A.C., because: (1) the proposed facility is for the exclusive use of the condominium residents and not the general public; (2) the facility is not being constructed, operated or maintained by government, or funded by government secured bonds; and (3) the applicants have not provided evidence of having to satisfy a unique operational constraint. The Board of Trustees have historically interpreted �unique operational constraints� to mean constraints in the operation of the facilities. The applicant indicates that

the �operation constraint� is not construction or operation of the marina, but rather difficulty in marketing slips with only a five-year lease duration.

Even if the applicants demonstrate that the extended term is necessary to satisfy unique operational constraints, they do not qualify for the extended term, pursuant to section 18-21.008(2)(b), F.A.C., because the proposed facility is not in compliance with all other provisions of Chapter 18-21, F.A.C., applicable to the facility or use as stated above in regards to the �ownership oriented� nature of the facility.

In addition to the proposed docking facilities, the applicants propose to donate two parcels, with a combined area of approximately 42.30 acres, to the State. The subject parcels consist of a 26.43-acre parcel known as Little Josslyn Island located in Lee County within the Pine Island Sound Aquatic Preserve and a 15.87-acre parcel located in Martin County in the immediate vicinity of the Jonathan Dickinson State Park (Park). The Little Josslyn Island parcel consists of a tidally influenced island dominated by mangroves. The abutting submerged lands consist of highly productive submerged aquatic vegetation. The donation of Little Josslyn Island will ensure that a highly productive mangrove habitat and its abutting submerged lands will be protected from development in perpetuity. The 15.87-acre parcel in Martin County consists of a linear parcel situated between District-owned lands and the Park. The donation of this parcel will close a gap between the District-owned lands and the Park, and will allow management access to both parcels. This donation will allow for a continuous corridor that will connect a significant portion of the Loxahatchee River restoration effort with the Park. The applicants have indicated that the land donation is proposed as a public interest consideration weighing in favor of the exceedance of the sovereignty submerged lands criteria as described above.

District staff has discussed the rule criteria with the applicants, and the applicants are requesting that the Board of Trustees grant an exception to the rule criteria and approve the proposal as submitted.

In summary, the proposed project does not appear to pose a threat to the natural resources. However, the proposal does not comply with all the rule criteria as specified above; therefore, staff recommends denial of the proposal.

In accordance with section 18-21.008, F.A.C., the applicant has notified all 250 landowners within 500 feet of the proposed project during May and June of 2003. A proprietary authorization notice was also published in the local paper on May 13, 2003. Of those noticed, four individuals expressed an interest in being kept notified of the progress of the project. Changes were made to the marina plan at the request of an adjacent owner and no objections have been received.

A local government comprehensive plan has been adopted for this area pursuant to section 163.3167, F. S.; however, the Department of Community Affairs (DCA) determined that the plan was not in compliance. In accordance with the Compliance Agreement between DCA and the local government, an amendment has been adopted which brought the plan into compliance. The proposed action is consistent with the adopted plan as amended according to the city of West Palm Beach�s Resolution No. 358-00.