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AGENDA BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND MAY 30, 2001 ************************************************************** Item 1 Grimes Option Agreement/Conservation Easement/Green Swamp Area of Critical State Concern/Green Swamp CARL Project REQUEST: Consideration of an option agreement to acquire a perpetual conservation easement over 1,247.09 acres within the Green Swamp Area of Critical State Concern Land Protection Program and the Green Swamp CARL project from Charles David Grimes. COUNTY: Polk LOCATION: Sections 26 and 35, Township 26 South, Range 24 East CONSIDERATION: $1,200,000
** The purchase price for the conservation easement is 55 percent of the Ryan appraised fee value of $2,182,407 and 48 percent of the Waller appraised fee value of $2,494,180. STAFF REMARKS: Effective July 1, 1999, the legislature revised section 380.0677(2), F.S, as amended by section 51, chapter 99-247, Laws of Florida, to assign the Department of Environmental Protection (DEP) as the administrator of the Green Swamp Area of Critical State Concern Land Protection Program. The area contains 322,690 acres, of which 29,660 acres are protected by, or under agreement to be protected by, land protection agreements or conservation easements. After the Board of Trustees approves this agreement, 291,782.91 acres or 90 percent of the area will remain to be acquired. This is the first acquisition negotiated by DEP as the administrator of the Green Swamp Area of Critical State Concern Land Protection Program. This acquisition also lies within the Green Swamp CARL project boundary, which contains 117,780 acres, of which 25,086.73 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement, 91,446.18 acres, or 78 percent of the Green Swamp CARL project, will remain to be acquired. The property under the proposed conservation easement will be restricted in perpetuity by provisions of the easement, which include, but are not limited to, the following: Additional new construction will be limited to three residential structures, no more than two related outbuildings for each, impacting an area limited to 2.5 contiguous acres each including access driveways; Dumping of trash, waste, hazardous materials and soil will be prohibited; Mining and excavation will be prohibited, except in relation to allowable construction; No more intense agricultural use than currently exists on the property, which includes improved pasture, sod cultivation, hay production, silviculture and cattle grazing will be allowed; No timber harvesting in any herbaceous or forested wetland area or open water will be allowed; No acts or uses detrimental to the retention of land or water areas, or to the use of the property as a water recharge area will be allowed; and No leasing or selling of hunting and fishing rights on the property will be allowed. 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
Board of Trustees Agenda - May 30, 2001 Substitute Page Two ************************************************************** Item 1, cont. 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. A survey, title insurance policy, environmental site assessment and easement documentation report 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 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 conservation easement will be monitored by DEP's Bureau of Mine Reclamation. 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 1, Pages 1-58) RECOMMEND APPROVAL ************************************************************** Substitute Item 2 Bolt/Bank of America/KMB Development Corp. Option Agreements/ Spruce Creek CARL Project REQUEST: Consideration of two option agreements to acquire 36.25 acres within the Spruce Creek CARL project from John F. Bolt and Bank of America NA, and KMB Development Corporation. COUNTY: Volusia LOCATION: Sections 25, 36, and 38, Township 16 South, Range 33 East CONSIDERATION: $1,400,000
* Acquired in 1992. ** Volusia County is contributing $50,000 towards the total purchase price of $950,000. STAFF REMARKS: The Spruce Creek CARL project is ranked number 6 on the CARL Substantially Complete Project List as approved by the Board of Trustees on February 22, 2000, and is eligible for negotiation under the Division of State Lands' (DSL) Land Acquisition Workplan. The project contains 2,107 acres, of which 1,915.07 acres have been
Board of Trustees Agenda - May 30, 2001 Substitute Page Three ************************************************************** Substitute Item 2, cont. acquired or are under agreement to be acquired. After the Board of Trustees approves these agreements, 155.68 acres, or seven percent of the project, will remain to be acquired. Volusia County (County) is contributing $50,000 toward the purchase of the KMB Development Corporation property but will not retain any interest. All mortgages and liens will be satisfied at the time of closing. On June 22, 1999, the Board of Trustees approved a staff recommendation to delegate to the Department of Environmental Protection (DEP) the authority to review and evaluate marketability issues as they arise on all chapter 259, F.S., acquisitions and to resolve them appropriately. Therefore, DEP staff will review, evaluate and implement the most appropriate resolution for any title issues that arise prior to closing. A title insurance policy and a survey for both parcels will be provided by the purchaser prior to closing. Environmental site assessments on both parcels will be provided by the County, with the purchaser reimbursing the County's costs of the environmental site assessments in an amount not to exceed $6,000. The County will pay up to five percent of the purchase price in environmental clean-up costs, if necessary, for both parcels. The Bolt parcel is ranked number 10,468 on the Abandoned Tank Restoration Program and this ranking goes with the site. This program cleans up petroleum-based products, with the owner paying a $500 deductible. The environmental site assessment will determine whether or not any non petroleum-based products need to be cleaned up. The County will complete any needed clean up of non petroleum-based products prior to closing. The County has the option to withdraw its funds on either option agreement if the estimated cost of clean up exceeds five percent of the purchase price. These parcels share common borders with the Atlantic Center for the Arts, Inc. (ACA), an internationally-known and respected artists-in-residence center founded by Doris Leeper, a recent inductee into the Florida Artists' Hall of Fame and the driving force behind the creation of the Canaveral National Seashore. According to Paul Markunas, the Executive Director of ACA, the purchase of the Bolt property was Doris Leeper's dream and focus for the last years of her life. Several archaeological sites are recorded on both parcels. Protection of this area through state acquisition and preservation would also provide manatee protection and recovery. The property is bordered by the mouth of Spruce Creek to the north and east, and runs along Murray Creek to the west. It is not clear if manatees use Murray Creek, but the waters of Spruce Creek show high levels of use by these animals. Both creeks provide a source of freshwater for the manatees. Development of this property for residential or commercial purposes would lead to decreased water quality in the area. Despite a relative lack of submerged aquatic vegetation directly adjacent to the site, such reductions in water quality would be detrimental to the manatee. Also, residential development of this site would likely lead to increased boating traffic in an area that already has a relatively high manatee mortality rate attributed to watercraft. Public acquisition of this property, with appropriate management of its natural communities, will directly benefit the regional population of manatees. Natural areas along the coast of Volusia County are becoming scarce as residential developments expand from Daytona Beach and New Smyrna Beach. Public acquisition of the Spruce Creek CARL project will protect one of the largest tracts of undeveloped land left in this region along the estuary of Spruce Creek; help to maintain the water quality of the creeks and bays here, thus protecting a fishery; conserve what may be the site of Andrew Turnbull's eighteenth-century plantation; and provide a recreational area where people can do anything from hiking and fishing to simply learning about the plants and animals of this scenic landscape. Board of Trustees Agenda - May 30, 2001 Substitute Page Four ************************************************************** Substitute Item 2, cont. This property will be managed by the Volusia County Parks and Recreation Services for the conservation and preservation of the natural resources of the property and to provide recreational information to the public. 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 1-53) RECOMMEND APPROVAL ************************************************************** Item 3 Kelly Purchase Agreement/Lake Jackson Mounds Archaeological State Park REQUEST: Consideration of a purchase agreement to acquire 44.7 acres within the Lake Jackson Mounds Archaeological State Park, Division of Recreation and Parks' Additions and Inholdings project from Roy Kelly, as Trustee of the Lowell D. Crowder Trust-A and as Personal Representative of the Estate of Willie B. Crowder. COUNTY: Leon LOCATION: Section 10, Township 01 North, Range 01 West CONSIDERATION: $750,000
STAFF REMARKS: The Lake Jackson Mounds Archaeological State Park project has been identified on the Division of Recreation and Parks' Additions and Inholdings List. This agreement was negotiated by the Division of State Lands on behalf of the Division of Recreation and Parks (DRP) under the State Parks' Additions and Inholdings Preservation 2000 program. All mortgages and liens will be satisfied at the time of closing. There are two easements on the property. These include a 30-foot wide natural gas pipeline easement and an eight-foot wide, approximately 120-feet long, ingress-egress easement. The appraiser has determined that the easements do not have any adverse impact on value. On June 22, 1999, the Board of Trustees approved a staff recommendation to delegate to the Department of Environmental Protection (DEP) the authority to review and evaluate marketability issues as they arise on all chapter 259, F.S., acquisitions and to resolve them appropriately. Therefore, DEP staff will review, evaluate and implement the most appropriate resolution for any title issues that arise prior to closing. A title insurance policy, a survey, an environmental site evaluation and, if necessary, an environmental site assessment will be provided by the purchaser prior to closing. Lake Jackson Mounds, with its complex of mounds, is recognized for its importance as an example of the once powerful Southern Cult of Native American Mississippians. At its peak in Board of Trustees Agenda - May 30, 2001 Page Five ************************************************************** Item 3, cont. the fourteenth century, Lake Jackson was a thriving community that represented a southern commercial and ceremonial hub into peninsular Florida. This acquisition represents a majority of the village site that remains in private ownership. The property will be managed by DRP as an addition to the Lake Jackson Mounds Archaeological State Park. 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 1-25) RECOMMEND APPROVAL ************************************************************** Item 4 Orange County Option Agreement/West Orange Trail Phase III Greenways and Trails Project REQUEST: Consideration of an option agreement to acquire 5.12 acres (10 parcels) within the West Orange Trail Phase III project under the Preservation 2000 Greenways and Trails program from Orange County. COUNTY: Orange APPLICANT: Department of Environmental Protection, Office of Greenways and Trails (OGT) LOCATION: Sections 03 and 10, Township 21 South, Range 28 East; and Section 34, Township 20, Range 28 East CONSIDERATION: $514,283
STAFF REMARKS: The West Orange Trail Phase III project has been identified on OGT's approved acquisition list. Pursuant to a multi-party acquisition agreement (MPAA) entered into on February 11, 1998, between the Department of Environmental Protection's (DEP) Division of State Lands (DSL), OGT and Orange County (County), this acquisition was negotiated by DSL on behalf of OGT under the Preservation 2000 Florida Greenways and Trails program. After the Board of Trustees approves this agreement, the West Orange Trail Phase III will be completed. This property is being acquired using federal acquisition procedures, in accordance with the Federal Intermodal Surface Transportation Efficiency Act and the Code of Federal Regulations Title 49. On June 22, 1999, the Board of Trustees approved a recommendation to substitute Board of Trustees Agenda - May 30, 2001 Substitute Page Six ************************************************************** Item 4, cont. the land acquisition procedures of the Federal Highway Administration for the State of Florida's procedures outlined in section 259.041, F.S., for the projects that qualify for federal enhancement funding, as administered by the Florida Department of Transportation. Pursuant to the terms of the MPAA, and due to fragmented ownership of the corridor, the County acquired these parcels from the individual owners with the intention of conveying ownership to the Board of Trustees. The County was able to acquire one parcel through negotiation and the other nine were acquired through litigation. According to the MPAA, if the County elects to purchase a parcel from the owner and then convey the parcel to the Board of Trustees, the Board of Trustees' purchase price shall be the lesser of the County's purchase price or the maximum approved value of the parcel, plus the County's pre-acquisition and closing costs. 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, a survey, an environmental site evaluation and, if necessary, an environmental site assessment will be provided by the purchaser. The West Orange Trail project consists of five phases of which this acquisition is the final part of the third phase. The first two phases have been acquired by the Board of Trustees and developed. Once all phases have been completed, the West Orange Trail will be a 30-mile, multi-purpose recreational greenway containing a 14-foot-wide paved surface to be enjoyed by walkers, joggers, hikers, bikers, skaters, the physically challenged, and horseback riders. The completed trail will become part of the 200-mile Central Florida Loop. This immense greenway system would stretch from the Ocala National Forest to Wekiva Springs State Park. The Central Florida Loop (and the West Orange Trail) will link communities to natural lands throughout the region. OGT will be the interim manager of the property with the County as the long-term manager. The property will be managed as a multi-purpose recreational trail as a segment of the West Orange 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 4, Pages 1-40) RECOMMEND APPROVAL ************************************************************** Substitute Item 5 Gulfstream Natural Gas System, L.L.C. Utility Easements REQUEST: Consideration of a request for (1) six 50-year non-exclusive utility easements; and (2) two 3-year temporary utility easements to Gulfstream Natural Gas System, L.L.C., for a natural gas transmission pipeline.
Board of Trustees Agenda - May 30, 2001 Substitute Page Seven ************************************************************** Substitute Item 5, cont. COUNTIES: Palm Beach, Polk, Manatee Easement Numbers 30707, 30708, 30709, 30710, 30711, 30712, 30713, 30719
APPLICANT: Gulfstream Natural Gas System, L.L.C. (Gulfstream) LOCATION: Tenoroc Fish Management Area - Section 34, Township 27 South, Range 24 East, Section 32, Township 27 South, Range 25 East, and Sections 02, 03, and 04, Township 28 South, Range 24 East; Beker Tract - Section 20, Township 33 South, Range 21 East; Peace River Settlement - Sections 03 and 10, Township 30 South, Range 25 East, and Section 04, Township 31 South, Range 25 East; ScanAmerican - Sections 22, 23, 24, 27, 28, 29, 31, and 32, Township 26 South, Range 26 East; A. Duda and Sons, Inc. Agricultural Lease - Section 88, Township 44 South, Range 37 East; and Board of Regents/IFAS Facility - Section 10, Township 44 South, Range 37 East CONSIDERATION: Easement fee based on an appraisal of the affected parcels, to be deposited pursuant to chapters 253 and 259, F.S., and mitigation/compensation to be determined by the affected managing agencies. STAFF REMARKS: Gulfstream proposes to construct approximately 753 miles of 16- to 36-inch diameter natural gas pipeline that will originate in Mobile, Alabama, extend across the Gulf of Mexico to Tampa Bay, just south of Egmont Key, and then make landfall at Port Manatee in northern Manatee County. From Port Manatee, the pipeline will traverse ten counties across the state, terminating in Palm Beach County. On January 23, 2001, the Board of Trustees approved an easement for the submerged lands portion of the applicant's pipeline. The pipeline will also cross six state-owned upland properties. The first state-owned parcel, Tenoroc Fish Management Area (Tenoroc), is managed by the Florida Fish and Wildlife Conservation Commission (FWCC) under Board of Trustees' Lease Number 3977. The Beker Tract is managed by the Department of Environmental Protection (DEP), Division of Recreation and Parks under Board of Trustees' Lease Number 3703. The Peace River Settlement lands are managed by DEP, Bureau of Mine Reclamation (BOMR) under Board of Trustees' Lease Number 3995. The Board of Regents (BOR) Institute of Food and Agricultural Sciences (IFAS) facility is managed under Board of Trustees' Lease Number 3653. Lastly, A. Duda & Sons, Inc. (Duda), manages an agricultural land parcel under Board of Trustees' Lease Number 3422. The ScanAmerican property is a recent acquisition scheduled for management by the FWCC. DEP will grant Gulfstream two initial three-year temporary construction easements based on survey sketches of the pipeline route, one for the ScanAmerican parcel, which will be executed separately to allow FWCC additional time to negotiate with Gulfstream on compensation/mitigation for impacts to the new property, and one for the remaining parcels. Once the pipeline is installed, Gulfstream will provide as-built surveys of the final pipeline route and will execute 50-year easements for each of the properties crossed by the pipeline. Pursuant to section 18-2.018, F.A.C., the decision to authorize the use of Board of Trustees-owned uplands requires a determination that such use is not contrary to the public interest. The purpose of the pipeline is to meet increased demand for natural gas, largely electrical power generation. The environmental benefits of the project are cleaner air from burning natural gas instead of coal or oil, and the reduced potential risk of oil spills through surface transportation and handling of refined oil. In siting linear facilities, owners and operators must avoid locating on state-owned natural resource lands unless no other practical and prudent alternative is available and must take steps Board of Trustees Agenda - May 30, 2001 Substitute Page Eight ************************************************************** Substitute Item 5, cont. to minimize impacts. Gulfstream avoided impacting the DRP Beker Tract by co-locating with State Road 62 through Manatee County. This resulted in crossing only 65 feet of the property. Negative impacts will be further avoided by boring under the property. FWCC's Tenoroc was avoided to the extent practical. However, Gulfstream has a contract to deliver natural gas to the city of Lakeland, on the west side of Tenoroc, necessitating the crossing of this property. Gulfstream worked with FWCC to come up with a route that avoids most of the property. The final route is sited along the edges of the property, and is co-located adjacent to an existing powerline easement. The ScanAmerican Tract came up late in routing/siting efforts, but Gulfstream was required to be on the south side of Interstate 4 to avoid the more pristine areas of Green Swamp. Alternatives looked at by Gulfstream only increased the overall environmental impact, and impact to residential areas. Through the course of the DEP Environmental Resource Permitting process, agencies concluded that co-locating the pipeline with a powerline along Interstate 4 was the route that avoided the most environmental impact. For the three additional state-owned properties acquired with funds not associated with conservation and recreation land acquisition programs, Gulfstream sited the pipeline along the southern border of Duda's agriculture lease and BOR's IFAS facility in Palm Beach County to minimize impacts to these properties. Duda has no objection to the pipeline. However, Gulfstream and BOR are still negotiating the details of the IFAS easement. If the easement as submitted has substantive changes, this portion of the request will be brought back to the Board of Trustees. The Peace River Settlement lands were acquired as part of the Coastal Petroleum Settlement Agreement. The pipeline crosses uplands adjacent to where the pipeline crosses the Peace River. The location of the upland crossing resulted from the selection of the submerged lands crossing identified during the Ecosystem Management team permitting process to minimize impacts to wetlands. Applicants for linear facilities are required to compensate the Board of Trustees for utility easements. DEP staff has contracted for appraisals of the easement areas; however, additional time is required for review and approval of the appraisals. Gulfstream is under time constraints requiring that construction start by June 2001. For this reason, DEP staff is requesting approval of the easements, subject to final approval of the appraisals by DEP's Bureau of Appraisal. Easement fees will be deposited pursuant to chapters 253 and 259, F.S.
In addition to an easement fee, applicants for linear facilities crossing natural resource lands are required to provide that measure of additional money, land, or services necessary to offset the actual adverse impacts reasonably expected to be caused by the construction, operation and maintenance of the linear facility and related appurtenances. DRP has indicated that impacts to its Beker Tract are minimal and do not require compensation beyond the easement fee. FWCC has requested that Gulfstream undertake development of a recreational facility at Tenoroc, estimated to cost $251,180. Because the ScanAmerican lands were only recently acquired, FWCC has not been able to assess impacts to the property or develop a specific mitigation proposal. Approval of this segment of pipeline is subject to Gulfstream agreeing to work with FWCC to negotiate the scope and cost of a project acceptable to FWCC. BOR and Duda are assessing the impacts resulting from the loss of a portion of their respective lease areas. Gulfstream has agreed to compensate the lessees for their losses. BOMR has requested that Gulfstream develop a canoe launch on the Peace River, including an entrance road and parking area, as compensation for impacts to BOMR's lease area. DEP received letters from three adjacent landowners expressing concern about the safety of the pipeline and need for opportunities for public comment on the proposed route. Responses were sent addressing the landowners' respective concerns and advising them of the Board of Trustees meeting dates. IMC Phosphates has requested that Gulfstream coordinate with them relative to pipeline installation under reclaimed wetlands it owns on either side of the Peace Board of Trustees Agenda - May 30, 2001 Substitute Page Nine ************************************************************** Substitute Item 5, cont. River. Gulfstream has agreed to do so. The City of Lakeland (City) notified DEP that it is negotiating with FWCC on an exchange involving Tenoroc lands. Gulfstream and the City are coordinating their efforts to avoid impacting the exchange. On March 15, 2001, the Acquisition and Restoration Council approved a determination that Gulfstream's pipeline request complies with the Board of Trustees' Linear Facilities Policy, and that, pursuant to section 259.101(7)(a), F.S., the crossings of the Beker and ScanAmerican tracts are compatible with the intent for which the lands were purchased. A consideration of the status of the local government comprehensive plan was not made for this item. DEP has accepted the applicant's claim of preemption by regulation under the Federal Energy Regulatory Commission process. (See Attachment 5, Pages 1-168) RECOMMEND APPROVAL SUBJECT TO RECEIPT OF EASEMENT APPRAISALS ACCEPTABLE TO DEP, BUREAU OF APPRAISAL ************************************************************** Item 6 Ocean Isles Estates Subdivision Quitclaim Deeds/Delegation/John Pennekamp Coral Reef State Park REQUEST: Consideration of a request to (1) quitclaim any state interest in filled, formerly submerged mangrove lands to the current owners of record of lots in the developed portion of Ocean Isles Estates Subdivision, pursuant to section 253.03(1), F.S., in order to cure clouds on title; and (2) give to the Director of the Division of State Lands, Department of Environmental Protection, or her designee, the authority to administer quitclaim deeds without the necessity to go through the formal agenda process for filled, formerly submerged mangrove lands to the current owners of record of lots in the remaining subdivisions and parcels within John Pennekamp Coral Reef State Park that were filled, other than by the current owners, prior to its dedication. COUNTY: Monroe APPLICANT: Owners of Ocean Isles Estates Subdivision and Department of Environmental Protection (DEP), Division of State Lands (DSL) LOCATION: Blocks 7 and 8, Ocean Isles Estates Subdivision in Plat Book 5, Page 14, Public Records of Monroe County, Florida, lying in Section 06, Township 61 South, Range 40 East STAFF REMARKS: A resident who purchased nine lots in Ocean Isles Estates Subdivision, which was platted, filled and developed between 1959 to 1961, has learned that her lots are subject to a claim of state ownership. Pursuant to section 253.12(9), F.S., title owners of record of tidally-influenced sovereignty land, permanently filled prior to July 1, 1975, are entitled to a certificate wherein the public-private boundary is established at the waterward extent of the fill. There is no requirement for the applicant to pay consideration; however, there is an exception to the certificate process in section 253.12(10), F.S., for lands maintained as state or local recreation areas. At issue is whether the subject filled land is included in the Board of Trustees' 1967 John Pennekamp Coral Reef State Park Dedication No. 22309-A (for public State Park purposes only, under the supervision and control of Florida Board of Parks Board of Trustees Agenda - May 30, 2001 Substitute Page Ten ************************************************************** Item 6, cont. and Historic Memorials) which states the following: "do hereby dedicate the following described sovereignty lands, in Monroe County, Florida to-wit: Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo." The subject lands were filled before the 1967 dedication. At this time, DEP has determined that the filled sovereign lands would fall within the dedicated area, but the applicant and other owners of similar lands have a reasonable argument that lands filled without authorization off Key Largo prior to 1967 were not intended to be within the park boundary, and that those lands would be entitled to certificates under section 253.12(9), F.S., a position that has not been tested in litigation. Due to the uncertainties of litigation, it is in the public interest to settle the title issues in the manner in which they were settled in the case of Winston Waterways, which came before the Board of Trustees on January 24, 1995. In that case, similar lands were quitclaimed in recognition of the fact that the landowners were innocent purchasers and were having significant problems obtaining title insurance on the lands. This recommendation to clear title for no consideration is consistent with the Board of Trustees action taken on Winston Waterways Subdivision, which is in the vicinity of the subject filled land. DEP's Division of Recreation and Parks takes the position that even if the state has a title claim to the filled lands, restoration is not feasible, because the filled land is fully developed with homes and small businesses. DEP staff recommends the Board of Trustees clear title to the filled lands by conveying, for no consideration, a single quitclaim deed to the lot owners of record who did not conduct the filling, and paid valuable consideration to their predecessors in title. The Ocean Isles Estates Subdivision area was noticed, pursuant to sections 253.111 and 253.115, F.S., and no objections were received. Further research revealed that waterward lots in as many as 15 platted subdivisions adjacent to John Pennekamp Coral Reef State Park are in this similar situation. DEP staff is requesting that as these similar lands that were filled prior to the park's dedication are identified, the Director of DSL, or her designee, be given the authority to administer quitclaim deeds without the necessity to go through the formal agenda process. A consideration of the status of the local government comprehensive plan was not made for this item. Staff has determined that the recommended action is not subject to the local government planning process. (See Attachment 6, Pages 1-21) RECOMMEND APPROVAL ************************************************************** Substitute Item 7 City of Naples/Naples Community Sailing Center, Inc. Recommended Consolidated Intent WITHDRAWN FROM THE APRIL 24, 2001 AGENDA DEFERRED FROM THE MARCH 29, 2001 AGENDA REQUEST: (1) Affirmation that a proposed public sailing school is consistent with an existing dedication; (2) modification of the dedication to add special conditions; and (3) authorization for the severance of 500 cubic yards of sovereign material within the dedicated area. Board of Trustees Agenda - May 30, 2001 Substitute Page Eleven ************************************************************** Substitute Item 7, cont. COUNTY: Collier Dedication No. 23096 ERP File No. 11-0171118-001 APPLICANTS: City of Naples (City) and Naples Community Sailing Center, Inc.
LOCATION: Section 10, Township 50 South, Range 25 East, in Naples Bay, Class II Waters, within the local jurisdiction of the city of Naples Aquatic Preserve: No Outstanding Florida Waters: No Designated Manatee County: Yes, with an approved manatee protection plan Manatee Aggregation Area: No Manatee Protection Speed Zone: Yes, idle/slow speed zone CONSIDERATION: No fee is required for the structures/activities within the dedicated area. The project qualifies for a waiver of the severance fee, pursuant to section 18-21.011(3)(c)1, F.A.C. STAFF REMARKS: In accordance with rules adopted pursuant to sections 373.427(2) and 253.77(2), F.S., the attached "Consolidated Notice of Intent to Issue" contains a recommendation for issuance of both the permit required under part IV of chapter 373, F.S., and authorization to use sovereignty submerged lands dedicated to the City under chapter 253, F.S. The Board of Trustees is requested to act on those aspects of the activity which requires authorization to use dedicated lands for the purposes requested. 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 applicants propose to construct a three-slip docking facility with access ramps within an area of sovereignty submerged lands originally dedicated to the City by the Board of Trustees on June 1, 1962, for street and other public municipal purposes. The docking facility is to be used primarily for a youth sailing school, educating children as young as eight years old. The facility will entail construction of a 5,302-square-foot "U"-shaped, floating dock-type structure designed with a detachable side that will swing out to provide access to an interior portion of the dock for mooring a large vessel that will be used as a floating classroom(s). The other two wet slips will be located along the northwest side of the facility, and will be used to moor two small tending vessels. The proposed dock will also support staging, launching, and retrieval of small, non-fixed keel sailboats. These small sailboats will be stored on top of the floating docks. The school, operated by Naples Community Sailing Center, Inc. (a Florida non-profit corporation), will train four classes of youth racers and will sponsor regattas for youth and adults. Adults may also take advantage of more advanced "learning to sail" programs to increase boat handling proficiency, and also to learn about racing, cruising, and passage making. The school presently operates out of a city park. The park supports a boat ramp with an accessory dock located on sovereignty submerged lands. The resulting boat traffic generated by the boat ramp is a hazard to the participating students. In order to eliminate the hazard, the applicants have selected to relocate the sailing school to a site wtihin the dedicated area. The proposed location offers similar access to the students and significantly reduces the potential for collision associated with public boat ramp activity. Board of Trustees Agenda - May 30, 2001 Substitute Page Twelve ************************************************************** Substitute Item 7, cont. In addition to the proposed dock, the applicants would like to create a net improvement to water quality within the area by dredging 500 cubic yards of carbon-enriched, sovereign material from a shallow basin near the proposed dock and within the dedicated area. There are no seagrasses within the dredge area, and, since the material will be placed on public property and it will be used for a public purpose, the project qualifies for a waiver of the severance fee, pursuant to section 18-21.011(3)(c)1, F.A.C. DEP's environmental resource permit contains specific conditions to address concerns such as protection of water quality, water quality improvements, and protection of endangered species. On May 22, 1962, the Board of Trustees approved a sovereignty submerged lands dedication (No. 23096) to the City containing 2.25 acres, more or less, to be used for "street and other public municipal purpose under the supervision and management of the City of Naples..." The proposed sailing center will be operated pursuant to a 20-year use agreement approved by the City on June 16, 1999 and entered into by the applicants on November 23, 1999, and as amended on April 4, 2001 and April 25, 2001. The use agreement provides for management of the premises by Naples Community Sailing Center, Inc., subject to oversight supervision and management by the City. The use agreement also allows the Naples Community Sailing Center, Inc., to make the sailing center facility available for rental by others, for public municipal purposes only, at such times when it is not being used by the Naples Community Sailing Center, Inc. Rental rates are intended to allow Naples Community Sailing Center, Inc., to recoup operating costs. Pursuant to the April 25, 2001 amendment to the use agreement, the rate schedule will be set annually by the Naples Community Sailing Center, Inc's., Board of Directors, who shall forward the rate schedule to the City for its approval. A special dedication condition has been included to ensure that Naples Community Sailing Center, Inc., does not discriminate in rental of the facility. Additional special dedication conditions will: (1) require prior Board of Trustees approval for any changes in use of the sailing school; (2) ensure that the sailing school classroom(s) are placed on, or are otherwise a part of, a vessel that is registered in the state, pursuant to chapter 328, F.S.; and (3) address the state's liability concerns. A previous design of the proposed sailing school dock placed the facility within 25 feet of the southern boundary of the dedicated area. Based on that previous design, the adjacent property owner submitted a written objection to the project, citing: (1) potential interference with riparian rights and ingress and egress to the adjacent property owner's restaurant; and (2) lack of parking availability for the sailing center. The applicants have responded to the first objection by redesigning and relocating the facility 25 feet away from the southern boundary, although DEP has determined that the set back rule does not apply to dedications by the Board of Trustees, since such dedications were issued prior to adoption of the applicable rules. The applicants have responded to the second objection by stating that there is a sufficient parking lot in the immediate vicinity of the project, and that the parking lot, while used by the restaurant, is under the supervision and management of the City, being fully within the dedication area. The adjacent property owner subsequently also raised a concern regarding the project's potential threat to existing buildings in the event of high winds (i.e., a hurricane). The applicants have responded to this objection by stating that the docks are designed to withstand strong winds when properly anchored in place, such as with the concrete pilings proposed for the project. Additionally, the pilings will be designed to extend to an appropriate height to accommodate potential storm surges associated with a hurricane. Therefore, the project's dock design should minimize any potential damage to the objector's adjacent property during high winds. A special approval condition has been included to require the applicants to provide an acceptable survey and legal description showing the location of all structures within the dedicated area and the City's riparian lines.
The DEP environmental resource permit requires sewage pumpout facilities, and prohibits liveaboards and fueling facilities. Recommendations from the Florida Fish and Wildlife Board of Trustees Agenda - May 30, 2001 Substitute Page Thirteen ************************************************************** Substitute Item 7, cont. Conservation Commission (FFWCC) regarding protection of manatees have been addressed in the permit. Additionally, Collier County has adopted and implemented a manatee protection plan that has been approved by the FFWCC. The FFWCC has stated that the proposed project appears to be consistent with the plan. The project was not required to be noticed, pursuant to section 253.115, F.S.
A local government comprehensive plan has been adopted for this area pursuant to section 163.3167, F.S. According to a letter received from the City, the proposed action is consistent with the adopted plan, as amended. (See Attachment 7, Pages 1-50) RECOMMEND (1) AFFIRMATION THAT THE PUBLIC SAILING SCHOOL IS CONSISTENT WITH THE DEDICATION; (2) APPROVAL OF THE DEDICATION MODIFICATION TO ADD SPECIAL DEDICATION CONDITIONS SUBJECT TO THE SPECIAL APPROVAL CONDITION; AND (3) APPROVAL OF THE SEVERANCE OF 500 CUBIC YARDS OF SOVEREIGN MATERIAL WITHIN THE DEDICATED AREA
************************************************************** Item 8 Sufficient Upland Interest Rule Amendments/Chapter 18-21, F.A.C. REQUEST: Consideration of a request to publish a Notice of Proposed Rulemaking for amendments to chapter 18-21, F.A.C., regarding sufficient upland interest required to use sovereignty submerged lands. COUNTY: Statewide APPLICANT: Department of Environmental Protection (DEP) (Sufficient Upland Interest Rule Amendments) STAFF REMARKS: The DEP is proposing to amend chapter 18-21, F.A.C., Sovereignty Submerged Lands Management, to clarify the type and degree of interest in riparian uplands that is necessary to make application for a Board of Trustees' authorization to conduct activities on sovereignty submerged lands. DEP initially published a Notice of Development of Proposed Rules in the April 9, 1999, issue of the Florida Administrative Weekly (FAW). DEP staff prepared a preliminary draft rule that was presented and discussed at three public Technical Advisory Committee (TAC) meetings, in July, August and October 1999. The TAC consisted of representatives of the marine industry, contractors, local government, water management districts, the Fish and Wildlife Conservation Commission, DEP, and general public. Although the TAC did not reach complete consensus on all issues, a revised draft rule was developed based on input from the TAC. The draft rule was discussed at three public workshops, in May, July and November 2000. Comments and suggestions from those workshops were considered in developing the final draft rule. DEP is now proposing to publish a Notice of Proposed Rulemaking, including the text of the proposed rule amendments, in the FAW to clarify and amend rules regarding "Sufficient Upland Interest." Board of Trustees Agenda - May 30, 2001 Page Fourteen ************************************************************** Item 8, cont. The current rule limits the types of satisfactory evidence of title or proof of interest to such things as a warranty deed, a current title insurance policy, or an opinion of title prepared by a member of the Florida Bar, although other forms of evidence of title or proof of interest are deemed acceptable. A court case [Secret Oaks Owner's Association, Inc. v. Department of Environmental Protection, 704 So. 2d 702 (Fla. 5th DCA 1998)] found that a homeowners association's interest in an easement constituted satisfactory evidence of title interest for the purpose of making application. The draft rule adds easements as an acceptable form of interest and includes a requirement that the form of interest submitted must clearly demonstrate that the holder has both control and interest in the riparian uplands adjacent to the project area and the riparian rights necessary to conduct the proposed activity. The proposed draft rule also conforms the terms and application requirements in several portions of the current rule that presently contains a mixture of terms for upland interest and requires varying degrees of interest for different types of projects. A draft of the proposed rule amendments is attached. Staff believes the proposed rule amendments address the necessary changes and will provide the clarity and definition needed. The proposed amendments are described below. 18-21.003(49) - amended to replace the definition of "satisfactory evidence of title" with "satisfactory evidence of sufficient upland interest" and provide that documentation, such as a warranty deed, lease or easement, must clearly demonstrate the holder has both control and interest in the riparian uplands adjacent to the project area and the riparian rights necessary to conduct the proposed activity. Provision is made to accept "other forms" of documentation if those documents adequately demonstrate sufficient riparian upland interest and riparian rights. 18-21.004(1) (c) - new language limiting the term of authorizations, when interest is less than fee simple, to the lesser of the term allowed by rule or the duration of interest in the riparian uplands. (d) - new language providing that where the riparian upland interest is less than fee simple, satisfactory evidence of sufficient upland interest must cover the lesser of the shoreline of the entire riparian upland parcel or 65 feet to construct a dock or pier. 18-21.004(3) (a) - amended to clarify that riparian rights are those defined in section 253.141, F.S. (b) - amended to clarify that activities on sovereignty submerged lands riparian to uplands can only be approved for persons with satisfactory evidence of sufficient upland interest; to provide that public utilities and governmental agencies must obtain satisfactory evidence of sufficient upland interest prior to beginning construction, but need not provide such evidence as part of any application; and to provide that satisfactory evidence of sufficient upland interest is not required for activities on sovereignty submerged lands that are not riparian to uplands (such as public mooring fields), or when a governmental entity conducts restoration and enhancement activities, provided that such activities do not unreasonably infringe on riparian rights. (c) - amended to clarify that structures and other activities must be conducted so as not to unreasonably impact the riparian rights of adjacent upland riparian owners. (d) - amended to clarify which structures and activities must be set back 25 feet inside an applicant's riparian lines; and to clarify exceptions to the set back requirements, including addition of a provision to allow the Board to authorize an exception where necessary to avoid or minimize adverse impacts to natural resources. 18-21.007, .008, .009, and .010 - minor technical corrections plus changes necessary to conform to the definition of "satisfactory evidence of sufficient upland interest." Board of Trustees Agenda - May 30, 2001 Page Fifteen ************************************************************** Item 8, cont. 18-21.900 - technical correction clarifying the forms to be used in submitting applications.
Upon approval of the proposed amendments by the Board of Trustees, a Notice of Proposed Rulemaking on Sufficient Upland Interest will be published in the FAW. The notice will include an opportunity for a public hearing, which could be held in late June 2001. If a hearing is requested resulting in changes to the proposed rule, staff anticipates returning to the Board of Trustees for final rule adoption on August 28, 2001. (See Attachment 8, Pages 1-5) RECOMMEND APPROVAL
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