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************************************************* AGENDA 2nd Substitute Item 1 Town of Fort Myers Beach Recommended Consolidated Intent REQUEST: Consideration of an application for (1) a ten-year, extended term, sovereignty submerged lands lease, containing 1,954,346 square feet (44.87 acres), more or less, for a managed, municipal anchorage mooring field; (2) waiver of lease fees; and (3) authorization to allow liveaboards to moor beyond six months. COUNTY: Lee
APPLICANT: Town of Fort Myers Beach (Town) LOCATION:
Sections 19 and 24, Township 46 South, Range 24 East, in Matanzas Pass,
Class II Waters, within the local jurisdiction of the Town of Fort Myers
Beach CONSIDERATION: A waiver of the lease fee is recommended, pursuant to sections 18-21.011(1)(b)7a and b, 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 the authorization to use sovereignty submerged lands under chapter 253, F.S. The Board of Trustees is requested to act on those aspects of the activity which require authorization to use sovereignty submerged lands. If the Board of Trustees approves the request to use sovereignty submerged lands and the activity also qualifies for a permit, the Department of Environmental Protection (DEP) will issue the "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 create a 44.87-acre mooring field (the Town of Fort Myers Beach Matanzas Pass Municipal Anchorage) that will be open to the public, on a first-come, first-serve (not-for-profit) basis within the applicant's jurisdictional limits. The proposed mooring field will contain 70 mooring spaces, each with helical anchors, cables and buoys, and designed to accommodate recreational vessels up to 58 feet in length. The applicant has negotiated a contract with an upland marina (Hanson Marine Properties, Inc., d/b/a Salty Sam's Marina, Inc. - Lease No. 360706835) to operate the mooring field. This commercial marina is located near the mooring field and will provide harbormaster facilities/amenities for patrons of the mooring field, which include: convenient sewage pumpout facilities, waste receptacles, a dinghy dock for land access, an on-site harbormaster quarters, laundry facilities, restrooms, shower facilities, and a ship's store. The applicant is of the opinion that these amenities will encourage boaters to use the mooring field. The marina will collect a rental fee from mooring field patrons and will retain 95 percent of the total gross rental income in order to cover the cost of operating the mooring field. The marina will remit to the applicant 5 percent of the total gross rental. The intent of the contract between the applicant and the marina is to ensure that all revenues collected from the mooring field will be used solely for the purposes of operation and maintenance of the mooring field. Sections
18-21.008(2)(a) 1 and 2, F.A.C., state in pertinent part that: "Extended
term leases shall be available for existing or proposed facilities or
activities…where the use of the sovereignty submerged lands and the
associated existing or proposed structures on sovereignty ************************************************* 2nd Substitute Item 1, cont. submerged lands have or will have an expected life, or amortization period, equal to or greater than the requested lease term and where the applicant has demonstrated that: 1. the facility or activity provides access to public waters and 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." The Town has provided information to DEP indicating that: (1) all slips within the lease area shall be made available for rent to the public on a "first-come, first-served" basis; and (2) that the mooring field will be constructed by the Town and the mooring field will be operated and maintained by the Town via a contracted harbormaster. Therefore, DEP is of the opinion that the proposed extended term lease is consistent with the rule. The applicant has submitted a Harbor Management Plan (Plan) that provides background information, design, operational rules and regulations, and objectives for the applicant's oversight and management of the entire mooring field via the harbormaster. A special lease condition will incorporate the Plan into the lease. The Plan will require the harbormaster to: (1) enforce the provisions of the sovereignty submerged lands lease and any permits granted; (2) provide administration for the operation, maintenance, and security of the mooring field and shoreside amenities (harbormaster facilities); (3) assign moorings; (4) prepare records and reports as they relate to management of the mooring field; (5) maintain the mooring field and harbormaster facilities; and (6) ensure that all mooring field patrons execute a mooring lease agreement during normal business hours, or for those vessels arriving after normal business hours, at the start of business the following day. This lease agreement will bind the users to the rules and regulations as provided in the Plan. Only authorized and operational vessels, those capable of maneuvering under their own power, and those in compliance with the United States Coast Guard regulations and safety standards will be allowed within the mooring field. Any vessel within the boundaries of the mooring field at the time of adoption of the Plan shall be considered to be "grandfathered in" from the requirement to pay fees for mooring within the mooring field for a period of six months. However, those vessels shall be required to meet all other applicable rules and regulations of the Plan. At the end of the six-month term, those vessels shall be required to comply with all parts of the Plan, or the vessels will be required to vacate the mooring field. Upon execution of the mooring field lease, all open water mooring within the applicant's jurisdictional limits, but located outside of the lease, will be limited to 24 hours pursuant to a local ordinance adopted by the applicant. This will minimize random mooring outside of the lease, thus alleviating unmonitored discharge of sewage and gray water, as well as, unregulated mooring over submerged resources in the area. Upon entering the mooring field, all vessel operators will be required to empty their sewage holding tanks into the sewage pumpout facility located at the harbormaster's marina and all Y-valves shall be locked and sealed in the non-overboard position. No pumping of sewage in any area within the mooring field will be allowed, except at the pumpout station. Liveaboard vessel operators will be required to empty their sewage holding tanks not less than every three days, unless an alternate pump out schedule for the vessel is approved by the harbormaster, and this shall be dependent upon the size of the vessel's holding tank. Major repairs or refitting of vessels, including any activity that could result in a deposition of materials into the waterway or within the mooring field, will be strictly prohibited. It has been
the position of the Board of Trustees to discourage liveaboards from mooring
over sovereignty submerged lands. A liveaboard is defined in sovereignty
submerged land leases as "a vessel docked at the facility and inhabited
by a person or persons for any five consecutive days or a total of ten
days within a 30 day period. If liveaboards are authorized, in no event
shall such liveaboard status exceed six months within a 12 month period,
nor shall any such ************************************************* 2nd Substitute Item 1, cont. vessel constitute a legal or primary residence." The mooring field is anticipated to help alleviate random mooring of boats and the discharge of sewage and gray water in Matanzas Pass, thereby protecting sovereignty submerged land resources in the area. In order to retain patrons in the mooring field who conform to all parts of the Plan, but otherwise would have to leave the mooring field under the above more restrictive definition of liveaboards, the applicant requests that liveaboards using the proposed mooring field will not be held to the restrictive length of stay of six months. DEP does not recommend lifting the Board of Trustees' existing time restriction on liveaboards. Sections 18-21.011(1)(b)7a and b, F.A.C., state in pertinent part that lease fees may be waived under the following circumstances: "a) Any revenues collected from the activity or use of sovereign submerged lands are used solely for the purposes of operation and maintenance of the structure; and b) The activity or use of sovereign submerged lands is consistent with the public purposes of the applicant organization and is not an adjunct to a commercial endeavor." Based upon the merits of the proposed project and information provided to DEP by the applicant indicating that fees will be assessed and profits shall be used to offset costs and construction, operations, and maintenance of the mooring field, DEP is of the opinion that the proposed activity meets the rule requirement. Therefore, DEP recommends that the lease fee be waived. A special lease condition will require the applicant to provide annual accounting data demonstrating whether the mooring field is a revenue generating activity. Should the accounting data demonstrate that the mooring field is a revenue generating activity, the special lease condition will require the applicant to submit lease fees for the use of sovereignty submerged land, pursuant to section 18-21.011, F.A.C. The Town of Fort Myers Beach is located in Lee County. The County is a designated manatee county without a state approved manatee protection plan. Pursuant to a letter sent by the Florida Fish and Wildlife Conservation Commission (FFWCC) on December 18, 2001, significant progress has not been made on the county's manatee protection plan. However, FFWCC recommends approval of the Town's mooring field if the applicant: (1) complies with the standard manatee protection construction conditions for all in-water construction; and (2) installs and maintains a manatee educational program, which shall include at a minimum, permanent signs and kiosks, speed zone booklets, and manatee educational brochures and pamphlets, in accordance with FFWCC requirements. These recommendations are incorporated into DEP's environmental resource permit. The proposed project was noticed pursuant to section 253.115, F.S., in a newspaper of general circulation, and it was specifically noticed to property owners within 500 feet of the proposed project area. The applicant has also held public workshops over the past several years to make the public aware of the mooring field. No objections were received in response to the noticing. However, prior to noticing, DEP received objections from eight individuals. The objections pertain to the following: (1) potential adverse affects to the real property, riparian and other existing property rights; (2) the applicant potentially exceeding its statutory and constitutional authority in matters pertaining to the navigable waters of the affected waterbody; (3) the size of the mooring field has been increased to accommodate shoal and seagrass areas in a commercial mooring area; and (4) the jurisdictional line of the applicant's limits have been extended to accommodate the western field. DEP is of
the opinion that the applicant has addressed these objections as follows:
(1) section 18-21.004(3)(b), F.A.C., states in pertinent part that "satisfactory
evidence of sufficient upland interest is not required for activities
on sovereignty submerged lands that are not riparian to uplands, or when
a governmental entity conducts restoration and enhancement activities,
provided that such activities do not unreasonably infringe on riparian
rights." Based on a review of historical aerial photographs, the
mooring field will be situated waterward compared to the historical mooring
locations of vessels and does not appear to adversely affect the riparian
rights of waterfront property owners. Residents have complained that during
storm ************************************************* 2nd Substitute Item 1, cont. events, the vessels now randomly moored in Matanzas Pass have been improperly anchored and are carried into other vessels, or onto shore, thus causing damage to adjacent properties. The applicant believes the mooring systems will minimize this occurrence; (2) the applicant has established secondary access channels to facilitate the flow of vessels and the mooring field will not encroach into the federal navigational channel; (3) the size of the western mooring field has been increased to further protect the submerged resources that are adjacent to the field. No overnight mooring, only transitional mooring such as to allow recreational opportunities, i.e. fishing, is to be allowed within the area of the submerged resource; and (4) the jurisdictional limits of the Town have not been extended. DEP's environmental resource permit authorizes liveaboards and requires sewage pumpout facilities. 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 applicant, the proposed action is consistent with the adopted plan, as amended. (See Attachment 1, Pages 1-31) RECOMMEND DEFERRAL TO THE OCTOBER 8, 2002 CABINET MEETING ************************************************* Item 2 Florida Keys National Marine Sanctuary Five-Year Management Plan Evaluation/Fifth Annual Status Report REQUEST: Acceptance of (1) the five-year management plan evaluation; and (2) the fifth annual status report of the Florida Keys National Marine Sanctuary. COUNTY: Monroe STAFF REMARKS: Following the grounding of three large vessels on the coral reefs of the Florida Keys within a short period in the fall of 1989, Congress passed the Florida Keys National Marine Sanctuary and Protection Act [Public Law 101-605 (H.R.5909)] (hereinafter referred to as "the Act"). This legislation provided federal authority to implement the regulations required to protect the marine resources of the Florida Keys. The Florida Keys National Marine Sanctuary (Sanctuary) was enacted into law on November 16, 1990. The Sanctuary, created by the Act, encompasses 2,900 square nautical miles of coastal and oceanic waters, and the submerged lands thereunder, surrounding the Florida Keys and extending westerly to encompass the Tortugas Banks. Approximately 65percent of the sanctuary is comprised of the sovereignty submerged lands of Monroe County, Florida. The Act provided authority, effective at the time of enactment, to restrict the operation of vessels greater than 50 meters in length in the "Area To Be Avoided" and prohibit the leasing, exploration, development or production of minerals or hydrocarbons in the Sanctuary. It also provided for the development of a comprehensive management plan to be developed through cooperation among all involved governmental agencies at the federal, state and local levels, and the general public. Additionally, a water quality protection program was authorized and specified as an integral part of the overall management of the Sanctuary. ************************************************* Item 2, cont. Section 5.(c) of the Act provided for the inclusion of the area located within waters of the State of Florida into the Sanctuary, unless the State of Florida objected in writing within 45 days after the date of enactment of the Act, which would have been December 31, 1990. The Board of Trustees responded by adopting a resolution on December 18, 1990 specifying the provisions under which state waters would be considered for inclusion into the Sanctuary. One provision was that the decision regarding the inclusion of state waters would be made following completion of the management plan. Another was that the management plan development process would include state participation. The Board of Trustees adopted the management plan on January 28, 1997, through a resolution, specifying the conditions and agreements between the State of Florida and the National Oceanic and Atmospheric Administration (NOAA) for the long-term partnership management of the sanctuary. The resolution specified 14 conditions and 9 interagency agreements required for inclusion of the territorial waters of the State of Florida into the Sanctuary. The management plan contains 10 action plans designed to protect the marine resources of the Florida Keys, including: (1) Channel/Reef Marking; (2) Education and Outreach; (3) Enforcement; (4) Mooring Buoy; (5) Regulatory; (6) Research and Monitoring; (7) Submerged Cultural Resources; (8) Volunteer; (9) Water Quality; and (10) Zoning. Attached is a letter from the Chief of the National Marine Sanctuaries Program of the U. S. Department of Commerce's NOAA that describes the status of the five-year revision of the Sanctuary management plan and the process by which the management plan will be revised. This revised plan will be brought to the Board of Trustees for consideration. During the five years following Board of Trustees' adoption of the management plan, many of the strategies defined in the action plans have been successfully implemented. The five-year management plan evaluation recounts those achievements. Among the many successes during its first five years of Sanctuary existence, several actions stand out as significant achievements. One of those was the execution of an agreement among NOAA, the Advisory Council on Historic Preservation, and the Department of State on June 29, 1998, which resulted in resolving permitting concerns of commercial treasure hunters. Another was a milestone in the protection of the diverse marine life and lush corals of the Tortugas Bank, which was the establishment of the fully protected Tortugas Ecological Reserve. It was adopted by the Board of Trustees on April 24, 2001, and the resulting regulations took effect on July 1, 2001. Three major accomplishments resulted from working with the shipping industry. On May 29, 2002, the boundary of the "Area To Be Avoided" at "The Elbow" in the upper keys was modified to avoid directing southbound ships farther out into the Florida Current than necessary. Installation of eight RACON beacons was completed on February 26, 1999, to warn large vessels of the reef hazards along the Keys. On March 4, 2002, the International Maritime Organization designated the waters surrounding the Sanctuary as one of only three Particularly Sensitive Sea Areas (PSSA) in the world. This PSSA designation will be marked on maps used by shippers worldwide. A No Discharge Zone (NDZ) for Sanctuary waters was implemented on June 19, 2002, as the result of the state's request to the U. S. Environmental Protection Agency to prohibit sewage discharges from boats in the Florida Keys. The Western Sambos Ecological Reserve, the only such zone established in the original management plan, has been documented by scientists as a highly successful no-take zone where the size and numbers of spiny lobsters have increased, and commercial fishermen have not been displaced or otherwise affected economically. (See Attachment 2, Pages 1-96) RECOMMEND
ACCEPTANCE OF (1) THE FIVE-YEAR MANGEMENT PLAN EVALUATION; AND (2) THE
FIFTH ANNUAL STATUS REPORT ************************************************* Item 3 Peter Miller, et al vs. BOT/DEP Settlement Agreement DEFERRED
FROM THE JUNE 12, 2002 AGENDA REQUEST: Consideration of the proposed settlement 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 and the acquisition of the 573.9 acres of land within the Etoniah/Cross Florida Greenway Florida Forever Project. 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 CONSIDERATION: $180,000 in severance damages, $110,000 in settlement of other claims and $610,000 for acquisition of 573.9 acres within the Cross-Florida Greenway, for a total of $ 900,000.
1 All appraisals
exclude the value of the boat ramp, canal, and campground built by the
U.S. Army Corps. of
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 are located
within the barge canal taking ************************************************* Item 3, cont. area. Also contained on the property is a portion of a campground, canal, concrete block bathhouse and boat ramp access. The primitive campground, canal, concrete block bathhouse and boat ramp were constructed by the U.S. Army Corps. of Engineers after the acquisition of the flowage easement. However, the Army Corps. of Engineers appears not to have obtained a recreation or other use easement from the Millers. Estimates by the Office of Greenways and Trails indicate the more than 5,000 vehicles per month visited the boat launch based upon traffic counts from January to April 2002. All but 34 acres of the Miller parcel lie within the former Cross Florida Barge Canal taking line. To date, the Board of Trustees has acquired most of the properties over which the Canal Authority had only a flowage easement under the area of the Rodman Reservoir. This Miller parcel essentially surrounds a parcel turned over to Board of Trustees by the Canal Authority and lies in the middle of the parcels acquired in the settlements with Ardrenn Suttlemyre, Joe, Earl, Douglas and Barbara Miller and Judith Shine, and Rae Miller McClure approved by the Board of Trustees in 2000. Settlement of these parties' claims, along with several other lawsuits in the same area, was achieved through the acquisition of the properties and, in some cases, through the payment of additional monies in settlement of additional claims. Acquisition of the 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." As noted in the preceding paragraphs, this parcel lies in the midst of other parcels already acquired by the Board of Trustees. This parcel is also unique in that it contains the remaining structures built by the United States Army Corps. of Engineers in the construction of a camping facility on this parcel. The Office of Greenways and Trails (OGT) will be able to operate the improved facilities and campground as a result of this purchase. OGT will also be able to provide needed amenities associated with the boat ramp presently located adjacent to property already owned by the Board of Trustees without having to acquire an easement across the Miller Property and without having to construct a new facility to gain water access on the northern portion of the Reservoir. This lawsuit arose as a result of the deauthorization of the Cross Florida Barge Canal. 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 a flowage easement to flood private property "in connection with the construction, operation and maintenance of the Cross-Florida Barge Canal Project." The Canal Authority appealed the judgment granting it only a flowage easement in hopes of acquiring fee simple title to the properties. The Canal Authority was unsuccessful in the series of appeals with the appellate courts finding that the flowage easement was sufficient to meet its needs under the doctrines of eminent domain contained in Florida Statutes. This parcel was flooded in 1968 when the Rodman Dam was completed. 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 ************************************************* Item 3, cont. resolution by the Governor and Cabinet, which agreed, on behalf of the State of Florida, to the terms of the federal deauthorization. After the deauthorization of the Barge Canal, a series of lawsuits were filed. A number of lawsuits also preceded the deauthorization during the time in which no activity associated with the construction of the Cross Florida Barge Canal was undertaken. Included in these lawsuits was the case of Canal Authority of the State of Florida v. Mainer, 440 So. 2d 1304 (5th DCA 1983). In the Mainer case, the appellate court held that "[t]he easements, by the very language of their creation, made their existence limited or conditioned upon use by the Canal Authority for the canal project, now abandoned." The document in that conveying an easement to the Canal Authority contained language that was similar, if not identical to that in this case, "for the purpose of constructing, operating, repairing, or improving the Cross Florida Barge Canal." The court continued that "[w]here the condemning authority only has an easement, and its rights to use the property has been lost or the public use has ended, the easement is extinguished, and all of its rights revert to the owner of the fee." The court concluded that "[t]he owners of the servient tenements in these cases now hold their lands free from the public easements." The court made on final statement that further, "[t]he Canal Authority has the right to use the easement over the lands, which is what it paid for," and the fact that the project was concluded did not entitle the State to recover any portion of the money paid out previously. This case has not been overruled to date, and therefore, remains the law for the present lawsuit. 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. If the Millers can reach the merits of their inverse condemnation claim and succeed, the Board of Trustees may be liable for the "high and dry" value of all submerged lands together with whatever wetlands the Court determines to be flooded by the reservoir. Meaning that 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. 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. If the Millers' "taking" claim fails, they may proceed against the Board of Trustees and DEP under a trespass or other tort action, seeking damages for the continued flooding of the property. It is estimated that if the Millers' succeed in this claim, the compensation for the damages to the Millers' property could well exceed the total amount paid in this settlement. If the Millers' succeed on their damages claim, the Board of Trustees would be liable for the payment of damages and not obtain the fee title to the property. The Millers' could also allege that the tort is of a continuing nature. If they were successful in this claim, it would mean that the Board of Trustees liability may not end until the water is fully removed from the Millers' property and the land is reasonably restored to the conditions the court imposes. In short, the Board of Trustees' potential liability could well exceed the $290,000 offered in settlement of all claims to resolve all pending and future litigation without receiving fee simple title to the land. 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 $610,000 and the payment of $290,000 in settlement of other potential
claims. The other existing and potential claims include severance damages
(compensation for the reduction in value of or damage to the portion of
the property not taken in the condemnation proceeding), attorney's fees
and costs, all pending and future claims (such as the trespass claims),
any recoverable pre-judgment interest, and removal of any question of
a continuing trespass with continuing damages based thereon. ************************************************* Item 3, cont. 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 $610,000, 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 any potential severance damage claims by the payment of $180,000; (3) settlement in full of any trespass action or other claims arising from, or relating to, the flooding of the property by the payment of the additional $110,000; (4) 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 (5) 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. (See Attachment 3, Pages 1-38) RECOMMEND APPROVAL OF THE SETTLEMENT AGREEMENT, INCLUDING THE PURCHASE OF APPROXIMATELY 573.9 ACRES OF LAND ************************************************* Item 4 South Florida Land Holdings LLC vs. BOT Settlement Agreement REQUEST: Consideration of a land exchange for Florida Forever "A" List lands existing within the Cape Haze/Charlotte Harbor Florida Forever Acquisition Project and proposed settlement in the case of South Florida Land Holdings LLC v. Board of Trustees of the Internal Improvement Trust Fund. Twentieth Judicial Circuit (Charlotte County) Court Case No. 01-1262 CA. COUNTY: Charlotte APPLICANTS: Department of Environmental Protection, Division of State Lands, and South Florida Land Holdings, LLC LOCATION: The Board of Trustees to receive lands located in Sections 14, 23, 24, 25 and 36, Township 41 South, Range 21 East. Jointly-held Board of Trustees/Southwest Florida Water Management District lands located in Sections 3, 9 and 10, Township 41 South, Range 21 East, to be exchanged. STAFF REMARKS:
On December 16, 1986, the Board of Trustees approved agenda item number
27 (BLA Review number 86-042-741), attached hereto as Exhibit "A",
wherein the Board of Trustees accepted General Development Corporation's
("GDC") donation of approximately 414 acres of land located
in Charlotte County, Florida. To effectuate this donation, on September
20, 1988, a special warranty deed was executed by and between GDC and
the Board of Trustees; however, because Department staff determined the
deed contained unacceptable conditions, the deed was not recorded. The
conditions required the Board of Trustees to be responsible for all delinquent
taxes and special assessments and also restricted certain Board of Trustees'
activities. ************************************************* Item 4, cont. November 17, 1989, Department staff correspondence indicates that the land donation had "not closed due to problems with the language contained within the deed." Accordingly, Department staff continued to work with GDC on acceptable deed language. GDC, however, was unwilling to cooperate, thus complicating and impeding Department staff's attempt to finalize the donation. GDC's untimely 1990 bankruptcy, wherein GDC was reorganized into Atlantic Gulf Communities Corporation ("AGCC") - Case No. 90-12231-BKC-AJC, further complicated Department staff's attempts to finalize the donation. The Department staff again attempted "to complete and finalize the donation." Final correspondence between Department staff and AGCC took place in late 1997 and early 1998. The Department staff asked AGCC if the subject property was "still available to be donated." AGCC failed to respond to Department staff's correspondence. The brief chronology above characterizes the challenges Department staff confronted in its attempt to close the 1986 land donation. In summary, a billion dollar bankruptcy and corporate reorganization, coupled with Department staff turnover during the 1990's, precipitated the circumstances involved in this litigation. Because GDC and its successor in interest, AGCC, failed to cooperate with Department staff in finalizing acceptable deed language, Department staff never recorded the deed. Consequently, when South Florida Land Holdings, LLC (SFLH) purchased the property from AGCC in 1999, SFLH's review of the chain of title did not reveal any prior recorded interests in favor of the Board of Trustees. During the Fall of 2000, SFLH applied to the Charlotte County Board of Zoning Appeals ("BZA") and requested a special exception to build a marina on the subject property. The Department's Charlotte Harbor Aquatic and State Buffer Preserves' staff received notice of the request and informed Charlotte County that the subject property was state-owned. As a result, in July of 2001, SFLH filed a quiet title action against the Board of Trustees alleging that it owned the property donated to the Board of Trustees in December of 1986. The Board of Trustees answered SFLH's July 2001 complaint and raised several affirmative defenses. The Court ordered the parties to attempt to mediate the title dispute. Settlement discussions between the parties ensued during the late Fall of 2001, premised upon the notion of a potential land exchange. Subject to the Board of Trustees' approval, the parties have agreed to the terms described in the settlement agreement attached to this item as Exhibit "B." This agreement resolves all pending and future litigation, costs, attorneys' fees, and interest. In the initial exchange, the Board of Trustees receive approximately 456 acres of Florida Forever "A" List lands in exchange for approximately 210 acres of jointly-owned Board of Trustees/Southwest Florida Water Management District (Board of Trustees/SWFWMD) lands. The jointly-held Board of Trustees/SWFWMD lands present Department staff with consistent and long-term management problems. Specifically, the 210 acres are lands created by upland spoil, which left little natural habitat and a large, invasive plant infestation. Accordingly, Department staff supports exchanging the 210 acres. The SWFWMD's Governing Board approved this settlement agreement at its June 25, 2002, meeting. See signature page of Exhibit "B." Note, also, that in addition to the initial land exchange, the settlement agreement includes a provision (paragraph 5.d.), which requires that the acreage received by the Board of Trustees is equivalent in monetary value to the 210 acres exchanged. The overview
map, attached hereto as Exhibit "C," shows the lands that are
being exchanged in the settlement agreement. The map also depicts additional
Florida Forever "A" List lands - or lands contiguous to "A"
List lands - that have been identified by the Charlotte Harbor Aquatic
and State Buffer Preserves' land manager. These additional lands have
been identified by the land manager to comply with paragraph 5.d. of the
settlement agreement. Finally, the ************************************************* Item 4, cont. map displays the desired route of mutual easements that are required to access the "BOT Lands." The "BOT Lands" are defined in paragraph 2.g. of the Settlement Agreement, attached hereto as Exhibit "B." The "BOT Lands" and the additional Florida Forever lands are all located in, or contiguous to, the Cape Haze/Charlotte Harbor Florida Forever "A" list project. Both the "BOT Lands" and the additional Florida Forever lands have been identified by Department staff as essential properties. The "BOT Lands" and additional Florida Forever lands included in the settlement agreement provide essential additions to lands previously acquired through the Environmentally Endangered Lands Program of the 1970s and the Save Our Rivers Program of the 1980s. Most of the lands are wetlands, including mangrove, salt marsh, and salt flats, with occasional uplands including pine flatwoods, and scrub habitats. These lands will aid in the protection or "buffering" of state waters, primarily the Cape Haze and the Gasparilla Sound/Charlotte Harbor Aquatic Preserves, as well as improve the protection and recreational value of the existing state- owned lands. They will also provide a land base for public access by improving connectivity between and among existing state-owned lands. This settlement agreement benefits the Charlotte Harbor area and enhances the management objectives of the Cape-Haze/Charlotte Harbor "A" Listed Project. Charlotte Harbor, one of the largest and most productive estuaries in Florida, supports an important recreational and commercial fishery, but is rapidly being surrounded by urban development. By conserving coastal wetlands, flatwoods and prairies behind mangrove swamps and salt marshes along Charlotte Harbor, the Cape-Haze/Charlotte Harbor project will help preserve the water quality of the estuary and protect habitat for the Florida manatee and other rare wildlife. In addition, citizens are provided opportunities for public access to enjoy passive, nature based recreational pursuits. The primary objective of management of the Charlotte Harbor State Buffer Preserve is to preserve and restore the natural systems surrounding Charlotte Harbor. This settlement agreement will aid the Board of Trustees in other specific management objectives, such as helping Department staff to protect the water quality of Charlotte Harbor and its important nursery areas for fish, shellfish and manatee habitat and, also, by providing the public with additional areas for natural-resource-based recreation. In sum, the land exchange contemplated in the settlement agreement will accomplish the multiple objectives of acquiring essential lands identified for acquisition under the Florida Forever program, increasing public access to Board of Trustees' lands, and settling the ongoing litigation. Additionally, the combined Board of Trustees and SWFWMD efforts embodied in this agreement demonstrates an interagency commitment that advances two interdependent objectives: (1) natural resource enhancement and protection; and (2) increased natural resource management efficiency. The Office of Coastal and Aquatic Managed Areas will manage the lands acquired in the settlement agreement as part of the Charlotte Harbor Aquatic and State Buffer Preserves. These lands acquired as part of this settlement agreement are consistent with Section 187.201 (10), Florida Statutes, the Natural Systems and Recreational Lands' section of the State Comprehensive Plan. (See Attachment 4, Pages 1-44) RECOMMEND
APPROVAL OF THE SETTLEMENT AGREEMENT WHICH PROVIDES FOR THE EXCHANGE OF
APPROXIMATELY 456 ACRES FOR APPROXIMATELY 210 ACRES OF JOINTLY- OWNED
BOARD OF TRUSTEES/SWFWMD LANDS ************************************************* Substitute Item 5 State-owned Land Encumberances/Federal Grants REQUEST: Authorization to encumber specific parcels of state-owned land as a condition for the receipt of federal grant money. COUNTIES: Lee and Collier APPLICANT: Department of Environmental Protection (DEP) LOCATION: Sections 29 and 30, Township 51 South, Range 27 East; and Section 20, Township 46 South, Range 25 East STAFF REMARKS: DEP's Office of Coastal and Aquatic Managed Areas has applied for federal grant money under the U.S. Fish and Wildlife Service (USFWS) Coastal Wetlands Conservation Grant Program in the amount of $1,367,385 for Rookery Bay National Estuarine Research Reserve (RBNERR), and $1,000,000 for Estero Bay State Buffer Preserve (EBSBP) for acquisition and restoration activities. When state land is purchased or restored using federal grant dollars or is used as a match for the federal funds, the federal government requires that the land be used only for the purposes specified in the grant agreement. The federal requirements preclude the grant recipient from altering the use of those lands or from disposing of or encumbering them without the concurrence of the granting agency. Because the grants listed below involve acquisition with federal dollars and restrictions on future use of the land, Board of Trustees' approval is required. DEP staff has reviewed the grants and has determined that the objectives of the state's environmental land acquisition and management programs will be served if approval is granted, and the restrictions on use will not limit the managers' ability to carry out their management responsibilities. Board of Trustees' approval to encumber the properties is contingent upon the Board of Trustees approving the respective acquisitions. Collier County is currently facing an unprecedented urban growth rate, with Naples leading the nation in metropolitan growth. Changes in land use within the primary watersheds that drain into the Rookery Bay estuary and adjacent water have been identified as the highest priority resource issue that threatens the long-term preservation of the RBNERR. The coastal habitats in Collier County have been impacted by alterations in hydrology and habitat, and development and channelization of natural systems. Historically, freshwater traveled across the surface of the land, percolating through wetland flow ways, before entering McIlvane Marsh. An old road, known locally as the Belle Meade grade, now runs through this area with some smaller roadbeds feeding off from it. The roads have disrupted the natural hydrology and caused a shift in plant communities: mangroves encroach on the saltmarsh on the saline side and wax myrtles and other shrubs invade the saltmarsh on the freshwater side. This shift in plant communities has been further exacerbated by fire suppression. While channelization and development have disrupted this system to some extent, acquisition of undeveloped lands remaining in and around McIlvane Marsh will limit further hydrologic and habitat disturbance. Land acquisition will assure long-term protection of the upland and wetland communities associated with these parcels. The objective of the McIlvane Marsh acquisition project is to acquire almost 1,000 acres of environmentally sensitive lands within the RBNERR. The lands are in 5 to 160-acre tracts under 19 different ownerships. Once acquired, RBNERR proposes to push the network of roadbeds into an adjacent borrow ditch to restore surface water sheet flow and native plant communities, and invasive plants on site will be controlled. Title to
the lands to be acquired will vest in the Board of Trustees but, since
federal funds are being used, the newly acquired parcels will be restricted
to the conservation objectives of the project and no change in use or
future development can take place without the consent of the USFWS. ************************************************* Substitute tem 5, cont. This is a partnership project with $450,000 from DEP and $1,367,385 from the USFWS. Mullock Creek Slough Acquisition Project Florida Gulf Coast University is expanding on Estero Bay's eastern water shed, less than five miles from the bay. Over the next two decades the university is expected to attract a student body of approximately 20,000, associated staff, support industries and business, housing, utility construction and transportation infrastructure. In addition, residential development has gradually filled the hydric flatwoods along tidal creeks such as the Imperial and Estero Rivers and Spring Creek. Drainage from the Fort Myers peninsula has been routed into the Ten-Mile Canal, draining into the Mullock Creek system. Overland sheetflow has been diverted by mosquito control ditches and farm fields, altering fire frequency, ground cover, diversity and the pollutant-filtering ability of marsh and forest understory. There are, however, several blocks of undeveloped open space remaining along the boundary of the Estero Bay Aquatic Preserve (EBAP). These blocks represent the last and best chance to design an EBSBP boundary that can both protect the waters of Estero Bay and return upland habitat benefits. The primary objective of the Mullet Creek Slough acquisition proposal is to acquire a 60-acre parcel and a 10-acre parcel consisting of salt marsh, hydric flatwoods, and mangroves surrounding Mullock Creek Slough. Acquisition will ensure long-term protection of the upland and wetland communities, and is considered to be a critical component towards successfully achieving ecosystem management goals for the EBSBP and the adjacent EBAP. Another part of this grant proposal is minor restoration via the removal of exotic plant species such as melaleuca and Brazilian pepper on the 70 acres, as well as hydrologic restoration of approximately 300 acres, and plant, wildlife and habitat surveys and mapping on 6,160 acres of the EBSBP. Title to the lands to be acquired will vest in the Board of Trustees, but since federal funds are being used, the newly acquired parcels will be restricted to the conservation objectives of the project and no change in use or future development can take place without the consent of the U.S. Fish and Wildlife Service (USFWS). This is a partnership project with $700,391 from the DEP, $2,000 from the Other Estero Bay Buddies, and $1,000,000 from the USFWS Wetlands Conservation Grant Program. A consideration of the status of the local government comprehensive plan was not made for this item. DEP has determined that the request is not subject to the local government planning process. (See Attachment 5, Pages 1-4) RECOMMEND APPROVAL ************************************************* Substitute Item 6 Florida Gas Transmission Company Utility Easements REQUEST: Consideration of a request for a (1) 50-year non-exclusive utility easement for 0.62 acre of state-owned land; and (2) 3-year non-exclusive temporary utility easement for 0.54 acre of state-owned land to Florida Gas Transmission Company for a natural gas transmission pipeline. COUNTY: Brevard APPLICANT:
Florida Gas Transmission Company (FGT) ************************************************* Substitute Item 6, cont. LOCATION: Section 25, Township 23 South, Range 35 East CONSIDERATION: $6,872, to be deposited in the Internal Improvement Trust Fund; and $10,440, to be provided to the Florida Fish and Wildlife Conservation Commission (FWCC) for management activities within the Brevard Coastal Scrub Florida Forever Project STAFF REMARKS: On April 9, 2002, the Board of Trustees approved a 50-year permanent easement and a 3-year temporary easement to FGT for expansion of FGT's existing underground natural gas pipeline system across the Brevard Coastal Scrub Florida Forever project. FGT has determined that its Phase VI pipeline's Cape Kennedy Lateral Loop Extension will cross two additional lots acquired by the Board of Trustees within the project. FWCC is designated to manage this portion of the project and has no objections to the pipeline. FWCC has agreed to accept $10,440 from FGT for management activities within the Brevard Coastal Scrub Florida Forever Project to offset the impacts of the pipeline. Pursuant to section 18-2.018(1)(a), 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 easement meets this requirement because expansion of the pipeline will meet increased demand for natural gas, largely for electrical power generation. The project will produce environmental benefits of cleaner air from burning natural gas instead of coal or oil, and the reduced risk of oil spills through surface transportation and handling of refined oil. Furthermore, the proposed pipeline route was selected specifically because it parallels two existing pipelines, eliminating the need to clear a new utility corridor. Because a pipeline already exists, co-location is preferable from an economic and resource protection standpoint because existing right-of-way can be used during construction, reducing the amount of new right-of-way needed. Co-location will reduce further habitat fragmentation and difficulties in implementing resource management activities such as habitat restoration and prescribed burning. Pursuant to section 18-2.020(4)(a), F.A.C., a one-time fee for private easements of greater than one-quarter acre in size shall be assessed and based upon an appraisal. Diskin Property Research, Real Estate Market Analysts, appraised the easements on May 10, 2002, and valued the 0.62-acre permanent easement at $5,952, and the 0.54-acre temporary easement at $920, for a total of $6,872. A consideration of the status of the local government comprehensive plan was not made for this item. The Department of Environmental Protection has accepted the applicant's claim of preemption by regulation under the Federal Energy Regulatory Commission process. (See Attachment 6, Pages 1-28) RECOMMEND APPROVAL ************************************************* Item 7 Jewel D. Rogers Utility Easement/Waiver of Appraisal REQUEST: Consideration of a request from Jewel D. Rogers for (1) a non-exclusive 20-foot-wide private utility easement (0.50 acres, more or less); and (2) waiver of an appraisal for a parcel to be conveyed to the Board of Trustees in a land exchange not related to the easement. APPLICANT: Jewel D. Rogers COUNTY: Gulf ************************************************* Item 7, cont. LOCATION: Section 09, Township 07 South, Range 08 West CONSIDERATION: $600 to be deposited in the Internal Improvement Trust Fund STAFF REMARKS: The Florida Fish and Wildlife Conservation Commission (FWCC) currently manages the Lower Apalachicola River Wildlife and Environmental Area (WEA) under Board of Trustees' Lease Number 3584. Ms. Jewel D. Rogers owns one acre on the Brothers River abutting the WEA in a remote part of the lower Apalachicola River Basin accessible only by boat. She is requesting a 1,082.87-foot-long by 20-foot-wide utility easement to extend an overhead electrical line to her property across state-owned natural resource lands acquired in 1974 as part of the MK ranch acquisition under the state's Environmentally Endangered Lands program. Electricity was available when Ms. Rogers and her husband bought the property in 1972, however, the overhead power lines were later removed when lines and poles were downed during timbering of the area. Since 1974, Ms. Rogers has had to use a portable generator powered by fuel brought in by boat to provide electricity to her camp house. On January 25, 2001, the Acquisition and Restoration Council (ARC) reviewed and approved part 1 of this request. The ARC agenda item referenced section 704.01(2), F.S., under which Ms. Rogers was entitled to an access/utility easement. Subsequent to the ARC agenda item, staff was advised by the Department of Environmental Protection's (DEP) Office of General Counsel (OGC) that because Ms. Rogers was only requesting a utility easement, section 704.01(2), F.S., which provides a statutory way of necessity for ingress and egress, does not apply. FWCC advised ARC that it took no position on the easement request as FWCC believed that Ms. Rogers was entitled to a utility easement because of the statute. The easement was valued at $600 in a broker's opinion of value dated April 1, 2002. The broker's opinion of value was reviewed and approved by DEP, Division of State Lands (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. In part 2 of this request, DSL recommends waiving an appraisal for a 0.50-acre part of Ms. Rogers' property being acquired in an exchange. This exchange will be accomplished under an existing delegation of authority. The exchange will resolve an encroachment on adjacent state-owned natural resource lands. The waiver is being requested prior to execution of the exchange agreement upon opinion of the OGC that Board of Trustees consideration of the waiver must precede negotiation of the exchange. The exchange will provide for a 0.25-acre parcel of Board of Trustees' land, on which part of Ms. Rogers' house encroaches, to be exchanged for the northern one-half (0.50) acre of Ms. Rogers' land abutting the WEA. The exchange transaction shall be completed prior to the issuance of the utility easement. Plant cover on the exchange parcels is predominantly black gum and cypress trees with some other bottomland hardwoods. Vegetative cover in the easement area is similar to that on the exchange lands. Except for the encroaching residence, the parcels are undeveloped. Ms. Rogers and FWCC support the exchange as a means of resolving the encroachment issue. 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 action is consistent with the adopted plan as amended according to Gulf County. (See Attachment 7, Pages 1-18) RECOMMEND
APPROVAL ************************************************* 2nd Substitute Item 8 Noel E. Andress/Karen Savulis-Andress Access and Utility Easement/DOA to Approve Easement REQUEST: Consideration of a request for a (1) perpetual, non-exclusive access and utility easement to Noel E. Andress and Karen Savulis-Andress over 0.94-acre, more or less, of state-owned land in Lee County within the boundary of Cayo Costa State Park; and (2) delegation of authority to the Secretary, Department of Environmental Protection, or his designee, to approve the easement, up to a width of 45 feet, if required by Lee County. COUNTY: Lee APPLICANTS: Noel E. Andress and Karen Savulis-Andress LOCATION: Section 18, Township 44 South, Range 21 East CONSIDERATION: Appraised easement value to be deposited in the Internal Improvement Trust Fund STAFF REMARKS: In November 2001, the Department of Environmental Protection (DEP), Division of State Lands (DSL) received an application from Peter and Linda Foy for an easement for access and utilities to service a 1.1-acre, more or less, lot in unrecorded Island Grove Subdivision (Island Grove) on Cayo Costa Island. The Foys were represented by Mr. Noel Andress. The application was subsequently amended to reflect Mr. and Mrs. Andress as the applicants. The Andresses are also lot owners within the subdivision. The Foys and the Andresses own two of the last eight lots within the subdivision that remain in private ownership. The Board of Trustees has acquired the remaining lots, as well as all other lands surrounding the subdivision, leaving the private landowners landlocked. The requested easement is one of two routes initially suggested by the applicants. The recommended easement route runs 1,420 feet north from Island Grove to the south line of La Costa Drive in La Costa Isles Subdivision (La Costa Isles). A second east-west route extends from Island Grove to Primo Bay, but was determined by the DEP, Division of Recreation and Parks (DRP) to have greater impacts. DRP manages the state park under Board of Trustees' Lease Number 3426. Section 704.01(2), F.S., provides that a statutory way of necessity exists when land outside municipal boundaries, used as a dwelling, or for agricultural, timbering or stock raising purposes, is shut off so that no practicable route of ingress or egress to the nearest public or private road exists. In such cases, the landlocked landowner may lawfully use, with or without an easement, lands lying between his property and the nearest public or private road for access and utility services. Although there has been no judicial determination that the applicant is entitled to a statutory way of necessity under the provisions of section 704.01(2), F.S., legal staff has reviewed this matter and it appears that the applicant's property meets the criteria for a statutory way of necessity. DRP would
prefer to have the Board of Trustees acquire the remaining lots; however,
the landowners have rejected all offers. For this reason, DRP is willing
to support the request provided that the applicants: (1) take all steps
necessary to minimize impacts to park resources; (2) limit the width of
the easement to no more than 25 feet; (3) provide a plan for and obtain
approval of the park manager before building any type of road on the easement
area; (4) accept responsibility for all costs associated with construction,
maintenance, and repair of the easement area; (5) provide warning signs
to ensure safety of park users whenever they conduct any construction
activity on or next to the easement area; (6) agree to pay reasonable
expenses incurred by DRP within the easement area or adjacent state park
lands if determined to be the result of the applicants' use of the easement
area; and (7) coordinate with and obtain approval from the park manager
before undertaking any construction, maintenance, ************************************************* 2nd Substitute Item 8, cont. or repair activity in the easement area. These DRP special conditions have been included in the easement. In addition, special conditions have been included prohibiting the use of impermeable materials in construction of the easement route, and limiting clearing of the easement area to the minimum necessary for access. Paragraph 15 regarding submerged lands has been modified to state that the easement does not signify the intent of the Board of Trustees to authorize the use of sovereignty submerged lands for access to the island. The applicants have an easement to access the island via a canal that does not involve sovereignty submerged lands; however, any request to use sovereignty submerged lands elsewhere on the island will require a separate application. The applicants have indicated they intend to build a single-family residence on their lot, which use is allowable under section 704.01(2), F.S. DRP has requested that the applicants furnish evidence that they have a valid permit to build a structure on their lot. However, the Lee County (County) Department of Community Development has provided a letter indicating that no building permits may be issued until access to the property has been determined. To ensure that the applicants' lot is developed as proposed, a special condition has been included in the easement requiring commencement of construction of the residence within three years from the date of execution of the easement or the easement will terminate. DEP has received objections from Barbara and Dan Trescott, landowners in La Costa Isles. The Trescotts maintain that because Island Grove is still pristine and undisturbed, the state should make every effort to acquire the remaining lots. They have requested that the state either enforce its public trust responsibilities and deny the application or seek to condemn the remaining privately owned lots in the subdivision. The County has submitted a resolution supporting the Trescott's position that the state either purchase or condemn the lots. An appraisal for the easement has not been completed to date, pending a determination by the Board of Trustees that it will not seek condemnation or deny the application. If approved, an appraisal of the easement will be required that is acceptable to DSL. The County requires that private access roads meet minimum width requirements that exceed the 25-foot width being granted the applicants. The minimum width varies depending on drainage requirements and may be as much as 45 feet. In an effort to reduce impacts to the park, the applicants will seek a variance for the reduced width. In the event the County does not approve the variance, DEP is requesting a delegation of authority for the Assistant Director, DSL, to approve the easement up to a width of 45 feet, if required. A local government comprehensive plan has been adopted for this area pursuant to section 163.3167, F.S. The Department of Community Affairs has determined that the plan is in compliance. The proposed easement is consistent with the adopted plan according to a letter received from the County Department of Community Development. (See Attachment 8, Pages 1-38) RECOMMEND DEFERRAL TO THE OCTOBER 8, 2002 CABINET MEETING ************************************************* Item 9 BOT/DOT/Determination/Conveyance/Reservation REQUEST:
Consideration of a (1) determination that a 54.063-acre parcel of state-owned
land in Collier County is no longer needed for conservation purposes pursuant
to section 253.034(6), F.S., and section 18, Article X of the Florida
Constitution; (2) request for approval to convey the parcel to the Department
of Transportation pursuant to section 253.03, F.S.; and (3) request for
approval to not reserve the oil, gas and mineral reservation pursuant
to section 270.11(1), F.S. ************************************************* Item 9, cont. COUNTY: Collier APPLICANT: Department of Transportation (DOT) LOCATION:
Section 01, Township 50 South, Range 32 East STAFF REMARKS: Pursuant to an Interagency Joint Participation Agreement (Agreement) dated December 10, 1986, between the Board of Trustees and DOT, DOT agreed to convey to the Board of Trustees any lands within the Save Our Everglades CARL project that were not needed for right-of-way purposes for Interstate 75/Alligator Alley. The Board of Trustees reimbursed DOT's acquisition costs for any lands the Board of Trustees received using a formula outlined in the Agreement. In 1996, DOT built a rest area on lands located at mile marker 38. The rest area site includes 54.063 acres of Board of Trustees-owned land acquired pursuant to the terms and conditions of the Agreement. Because the rest area is a right-of-way purpose and DOT holds title to rest areas located within the state's interstate system, DOT is requesting that the Board of Trustees convey the lands to DOT pursuant to section 253.03, F.S., and in accordance with the intent of the Agreement. DOT will reimburse the Board of Trustees' acquisition costs for the lands on which the rest area is located. The rest area is located on lands acquired as part of the Big Cypress Addition, but management has not yet been transferred to the National Park Service. For this reason, the Board of Trustees must also make a determination that the lands are no longer needed for conservation purposes. Because the site has been developed for a rest area, Department of Environmental Protection (DEP) staff believes that the site no longer serves a conservation purpose, and that the monies received by DOT can best be used for buying additional conservation lands. At the time the Board of Trustees approved the Agreement, it was expected that oil, gas and mineral rights would not be acquired in most cases, and DOT subsequently did not seek to acquire these interests. For this reason, DEP staff is requesting that the deed not contain the reservation required pursuant to section 270.11, F.S. A consideration of the status of the local government comprehensive plan was not made for this item. DEP has determined that the transfer of real property is not subject to the local government planning process. (See Attachment 9, Pages 1-17) RECOMMEND APPROVAL ************************************************* Substitute Item 10 2002 Florida Forever Five-Year Plan/Priority List REQUEST: Consideration of (1) the August 2002 Florida Forever Five-Year Plan of the Acquisition and Restoration Council; and (2) the August 2002 Florida Forever Priority List. STAFF REMARKS:
The 2002 Florida Forever Five-Year Plan was prepared pursuant to chapter
259, F.S., and rule 18-24, F.A.C. During the Acquisition and Restoration
Council (ARC) meetings of February 7, April 25, and June 6, 2002, ARC
added five projects, ************************************************* Substitute Item 10, cont. removed one project, and amended the boundaries of seven projects on the Florida Forever Priority List. The Five-Year Plan includes the August 2002 Florida Forever Priority List of acquisition projects approved by ARC and proposed for adoption by the Board of Trustees. In addition, the Report includes the Project Evaluation Reports of the five new projects that were added to the Priority List: Cypress Creek / Loxahatchee (Palm Beach and Martin Counties), Hosford-Chapman's Rhododendron Protection Zone (Gadsden and Liberty Counties), Lake Hatchineha Watershed (Osceola and Polk Counties), Lower Perdido River Buffer (Escambia County), and Yellow River Ravines (Santa Rosa and Okaloosa Counties). One project, the McKeithen Site (Columbia County), was removed from the list because we completed acquisition of the project. Four projects were moved from Group B to Group A: Big Bend Swamp / Holopaw Ranch (Osceola County), Middle Chipola River (Jackson/Calhoun Counties), Osceola Pine Savannas (Osceola County), and Tiger Island / Little Tiger Island (Nassau County). Additionally, the Volusia Conservation Corridor (Volusia County) Less-Than-Fee project in Group B was recombined with the Volusia Conservation Corridor (Volusia County) Full Fee project in Group A; the Southeastern Bat Maternity Caves Less-Than-Fee (Alachua County) and Full Fee (Jackson, Marion, Sumter, and Citrus counties) projects in Group B were recombined, and the Middle Chipola River Less-Than-Fee project was recombined with the Middle Chipola River Full Fee project and, as noted above, moved from Group B to Group A. The intent of recombining Full Fee with Less-Than-Fee projects was not to restrict the acquisition of all parcels in this project to fee-simple, but to allow flexibility to use either fee-simple or less-than-fee acquisition tools to accomplish the goals of the project. The boundaries of eight projects were amended to facilitate resource protection, land management, ecological restoration, connectivity with other managed areas, or land acquisition. These projects include: Apalachicola River (Corbin / Tucker site, Calhoun County), Big Bend Swamp / Holopaw Ranch (Osceola County), Bombing Range Ridge (Polk County), Brevard Coastal Scrub Ecosystem (Brevard County), Corkscrew Regional Ecosystem Watershed (Lee County), Osceola Pine Savannas (Osceola County), St. Joe Timberlands (Crooked / Short Creek in Liberty County, and Wakulla River site in Wakulla County), and Twelvemile Slough (Hendry County). The August 2002 Florida Forever Priority List is consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan. The Florida Forever Five-Year Plan was submitted under separate cover. (See Attachment 10, Page 1) RECOMMEND (1) ACCEPTANCE OF THE AUGUST 2002 FLORIDA FOREVER FIVE-YEAR PLAN; AND (2) APPROVAL OF THE AUGUST 2002 FLORIDA FOREVER PRIORITY LIST ************************************************* Item 11 TPL Option Agreement/South Walton County Ecosystem Florida Forever Project REQUEST: Consideration of an option agreement to acquire 2.61 acres within the South Walton County Ecosystem Florida Forever project from the Trust For Public Lands. COUNTY: Walton LOCATION:
Section 05, Township 03 South, Range 20 West ************************************************* Item 11, cont. CONSIDERATION: $450,000 (Board of Trustees' share of the total purchase price of $2,400,000)
* July 2002,
seller entered into a contract with McKenzies and Sharetron Limited for
$2,375,000. STAFF REMARKS: The South Walton County Ecosystem project is an "A" group project on the August 2002 Florida Forever Small Parcels Project List being presented to the Board of Trustees on this agenda. The project contains 22,036 acres, of which 20,204 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement, 1,829.39 acres or eight percent of the project will remain to be acquired. The majority of this acquisition is funded by a federal grant provided through the U.S. Fish and Wildlife Service Endangered Species Grant, obtained through the Habitat Conservation Program, and administered through the Florida, Fish and Wildlife Conservation Commission. The grant is known as the Beach Mouse Habitat Conservation Program Land Acquisition I. Pursuant to federal guidelines, the Trust For Public Lands (TPL) was offered 100 percent of the appraised value of $2,600,000. The federal grant will fund $1,950,000 (75 percent of the appraised value) and the Board of Trustees would have contributed $650,000 (25 percent of the appraised value). However, TPL has agreed to accept $2,400,000 for the property with the $200,000 reduction being applied to the Board of Trustees, thus reducing the Board of Trustees' share to 17 percent of the approved value. TPL will retain $25,000 to pay for overhead costs. This acquisition is contingent upon TPL acquiring the property from Thomas L. McKenzie and Mary Lynn McKenzie and Sharetron Limited. In the event that the terms and conditions for long-term conservation set forth in the U. S. Fish and Wildlife Service (FWS) Endangered Species Grant Agreement are not fully complied with, the property acquired with the grant from the FWS and the property used as a match for the grant dollars will be subject to transfer, replacement or repayment to the United States in accordance with the language below: a. Transfer
to the United States an undivided pro-rata share of the affected real
property. Subsequent disposition of the affected real property will be
subject to negotiation between the parties to this Agreement. The intent
of the negotiations will be to ensure that both parties receive a share
of the real property that is proportionate, as nearly as feasible, to
their share of the funds used to purchase such real property; or ************************************************* Item 11, cont. Additionally, since this parcel will be partially acquired with the U. S. Fish and Wildlife Service Endangered Species Grant Program funds, the recorded deed must contain the language below: "This property was acquired (in part) with funds provided by the U. S. Department of Interior, Fish and Wildlife Service, pursuant to section 6 of the Endangered Species Act (16 U. S. C. 1535), and will be managed for the protection of endangered species specific to Incidental Take Permit TE 796769-1, in accordance with applicable federal and state law." 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 the authority to review and evaluate marketability issues as they arise on all chapter 259, F.S., acquisitions and to resolve them as appropriate. 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 and an environmental site assessment will be provided by the seller prior to closing. The purchaser will reimburse the seller's cost of the title insurance, survey and environmental site assessment at closing. Few parcels of undeveloped beachfront property still exist in northwest Florida that are within designated critical habitat for the Choctawhatchee beach mouse, as this property is. This property, Topsail Hill Preserve State Park and the Stallworth Preserve are all within the Coastal Barrier Resources System. The property is adjacent to the Stallworth Preserve and adjoins the Topsail Hill Preserve State Park at Stallworth Lake, a rare coastal dune lake. Although the primary purpose of the proposed land acquisition is to promote recovery of the Choctawhatchee beach mouse, other state and federal protected species would benefit from this acquisition as well. These species include the threatened loggerhead sea turtle, endangered green sea turtle, endangered leatherback sea turtle, threatened piping plover and snowy plover, a species of concern. Acquisition of the property would ensure the protection of turtle nesting habitat and minimize the effects of beachfront lighting. Coastal beachfront lighting is one of the greatest threats to hatchling sea turtles as they emerge from the nest and crawl to the sea. It is especially important that the loggerhead turtle nesting areas be protected as the turtles that nest in northwest Florida are genetically different than other southeastern U.S. sea turtles. Where the Gulf of Mexico meets the coast of Walton County is a line of some of the most beautiful beaches and dunes in the world, backed by sparkling freshwater lakes and pine flatwoods and marshes spreading to Choctawhatchee Bay - one of the largest natural areas on the northern Gulf coast. Public acquisition of the South Walton County Ecosystem project will conserve a part of this unique coast and the forest behind it, linking three state parks; protecting several rare plants and rare animals such as the Choctawhatchee beach mouse and red-cockaded woodpecker; and providing residents and tourists a scenic area in which to enjoy many recreational activities, ranging from hunting and fishing to hiking, picnicking, and sunbathing. This property will be managed by DEP's Division of Recreation and Parks as an addition to the Topsail Hill Preserve 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 11, Pages 1-35) RECOMMEND
APPROVAL ************************************************* Item 12 Mary Kaufman Maxwell, Trustee Option Agreement/Access Easements/ North Key Largo Hammocks Florida Forever Project DEFERRED
FROM THE JUNE 26, 2001 AGENDA REQUEST: Consideration of (1) an option agreement to acquire 2.8 acres within the North Key Largo Hammocks Florida Forever project from Mary Kaufman Maxwell, Trustee; and (2) granting three access easements. COUNTY: Monroe CONSIDERATION: $61,600
* Acquired
August 2, 1985. STAFF REMARKS: The North Key Largo Hammocks is an "A" group project on the August 2002 Florida Forever Small Parcels Project List being presented to the Board of Trustees on this agenda. This project contains 4,513 acres, of which 4,269 acres have been acquired or are under agreement to be acquired by the Board of Trustees. After the Board of Trustees approves this agreement, 241.2 acres, or five percent of the project, will remain to be acquired. The tropical rockland hammock of the North Key Largo project is a highly endangered, rapidly disappearing natural community that supports numerous rare and endangered plant and animal species with limited distributions. The hammocks of North Key Largo are the best and largest examples of tropical hammock remaining in the United States. This project has over ten miles of shoreline that directly influence the adjacent waters of John Pennekamp Coral Reef State Park and the Florida Keys National Marine Sanctuary. Preservation of the project area in its natural condition will significantly aid in the maintenance of the high water quality necessary to support and manage the living reefs of the park, and it will conserve an area where the public can enjoy the original landscape of the subtropical Florida Keys. This project was originally known as New Mahogany Hammock on the first CARL list in 1980. The project was significantly expanded in 1986. By 1992, most property owned by willing sellers had been acquired. On September 15, 1992, the Board of Trustees directed the Department of Natural Resources (DNR) to exercise the power of eminent domain to acquire all remaining vacant parcels within the project, with an amendment to exclude this parcel, Number 56, from the condemnation resolution, and attempt to resolve our differences by mutual negotiations. Since 1992, DNR, now the Department of Environmental Protection (DEP), and the Attorney General's Office have been pursuing eminent domain, and have acquired approximately 410 acres by eminent domain. The state
has been negotiating with the owners of this parcel since the early 1990's.
The Maxwells own and operate a brine shrimp farm on a parcel adjacent
to this property. Its location within the North Key Largo Hammocks is
an ideal setting, due to the state's policy of not allowing the spraying
for mosquitoes. Between the brine shrimp farm and the county road is the
2.8 acres of undisturbed hammock that is being acquired. While the parties
had agreed to an acquisition proposal shortly after the Board of Trustees'
vote on condemnation, a ************************************************* Item 12, cont. significant amount of research had to be undertaken to ascertain the ownership of the existing driveway that goes from the county road to the brine shrimp farm in the rear of the property. It was initially thought that the driveway was on lands that had been acquired by the state, and an exchange of an easement across state lands along with a cash boot for the 2.8 acres of hammock was being proposed. As title and survey work was being performed, a question was raised as to the ownership of the road, and further research revealed that, in fact, a significant portion of the driveway was actually within a dedicated county right-of-way. Based on this new information, the acquisition proposal was altered to account for the existence of the county road right-of-way. On September 14, 1999, in order to induce more property owners to accept DEP's offers and avoid eminent domain proceedings, the Board of Trustees authorized Division of State Lands to extend offers to property owners in the Gulfstream Shores and Knowlson Colony subdivisions on North Key Largo, at a price not to exceed $4,000 over appraised value for each parcel. The $4,000 was based on the highest taxable value assessed by the county, which was in tax year 1991. The taxable value for this parcel cannot be calculated, since it is combined with a contiguous parcel to the east. Staff believes 10 percent over approved value is appropriate, when compared to the cost associated with eminent domain and with the precedent set on September 14, 1999. In an effort to acquire this property and to avoid costly condemnation proceedings, an agreement was reached that is 10 percent over the approved value. If condemnation was to be pursued, the appraisals would have to be updated and current fair market value would have to be offered. In the condemnation of the Kaliopi property (parcel Number 43, case number 94-20495), 17 acres were awarded $50,000 per acre plus fees. Staff believes that to avoid unnecessary and costly litigation, approval of this transaction is warranted. The option agreement grants a right of first refusal in favor of the Board of Trustees over the portion of the property which contains the brine shrimp farm, and which is being retained by the seller. At closing, the seller will reserve an easement for a water line that benefits the retained parcel. An addendum to the option agreement further provides that the Board of Trustees will grant a non-exclusive perpetual easement over state-owned land in order to provide access to the parcel being retained by the seller. This property will be managed by DEP's Division of Recreation and Parks as part of the Key Largo Hammocks State Botanical site. 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 12, Pages 1-36) RECOMMEND APPROVAL ************************************************* Substitute Item 13 Rolling Meadows Ranch, Inc. Authorization to Acquire Interest/Designation of SFWMD as Managing Agency/Confirmation/Modification of Management Policy Statement REQUEST:
Consideration of (1) authorization to acquire an undivided 42 percent
interest in 5,830.83 acres within the Catfish Creek Florida Forever Project
from Rolling Meadow Ranch, Inc.; (2) designation of the South Florida
Water Management District as manager of 1,972.43 acres (Parcel B) located
in the District's Kissimmee Chain of Lakes Project; and (3) confirmation
and modification of the management policy statement. ************************************************* Substitute Item 13, cont. LOCATION: Sections 32 through 35, Township 28 South, Range 29 East; and Sections 02, through 05, 07 through 11 and 15, Township 29 South, Range 29 East CONSIDERATION: $16,000,000 (Board of Trustee's 42 percent share of the total purchase price of $38,000,000)
* The seller
purchased the property in 1973 as part of a larger tract. STAFF REMARKS: The Catfish Creek project is an "A" group project on the August 2002 Florida Forever Full Fee Project List being presented to the Board of Trustees on this agenda. The project contains 13,325, of which 4,370 acres have been acquired or are under agreement to be acquired. Approximately 2,045 acres were approved by the Acquisition and Restoration Council as a boundary amendment on August 15, 2002. After the Board of Trustees approves this agreement, 3,124.17 acres or 23 percent of the project will remain to be acquired. The South Florida Water Management District (District) has taken the lead in facilitating the acquisition of this joint project. The District has entered into a purchase agreement to acquire 5,830.83 acres within the Catfish Creek Florida Forever project from Rolling Meadow Ranch, Inc., under the threat of condemnation. The purchase agreement will be partially assigned to the Board of Trustees who will contribute $16,000,000 for an undivided 42 percent interest in the property. The Department of Environmental Protection (DEP), Division of Recreation and Parks (DRP) will manage Parcel A, which contains 3,858.4 acres, and the District will manage Parcel B, which contains 1,972.43 acres within the District's Kissimmee Upper Kissimmee Headwaters Revitalization project, a component of the Kissimmee River Restoration program. On July 10, 2002, the Governing Board of the District adopted Resolution No. 2002-197, which approved the purchase price and the purchase agreement between the District and Rolling Meadow Ranch, Inc. Improvements on the property include a 2,256-acre sod farm, 508 acres of improved agricultural land, and a one-story office building. There are utility easements that provide phone service and electricity to the office building and power to the pumps necessary for irrigating the sod fields. The improvements and easements were considered in the determination of the final appraised value. The DEP, Division of State Lands (DSL), Bureau of Appraisal has reviewed and approved the appraisals provided by the District for this transaction. The managing agencies have determined that the property can be managed with the improvements and easements in place. A use agreement will provide for the sod operation to continue for a period of twenty-two months beyond the date of closing, under which the District and DRP will proportionally share revenues generated from the sale of the sod for management of the property. 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.
DSL will conduct an independent review of the title work, environmental
site assessments and surveys prior to the District closing the transaction
and will evaluate and implement an appropriate resolution for any title
issues that arise prior to closing. ************************************************* Substitute Item 13, cont. has been no litigation filed by either side of this transaction. Any sovereignty lands issues will, therefore, be resolved consistent with the negotiated transaction contemplated by the resolution. A title insurance commitment for the entire property, and a survey and an environmental site assessment for Parcel B will be provided by the District prior to closing. The Board of Trustees will provide a survey, an environmental site evaluation and, if necessary, an environmental site assessment on Parcel A, that will be managed by DRP. The Board of Trustees will reimburse the District for 42 percent of the title insurance policy. The high, sandy Lake Wales Ridge, stretching south from near Orlando almost to Lake Okeechobee, was originally covered with a mosaic of scrub, flatwoods, wetlands, and lakes. The scrub is unique in the world - it is inhabited by many plants and animals found nowhere else - but it has almost completely been converted to citrus groves and housing developments. The Catfish Creek project, with its scrub ridges overlooking the nearly pristine shore of Lake Pierce, will protect an especially scenic example of Lake Wales Ridge scrub and its associated ecosystems and allow the public to enjoy camping, fishing, and swimming in this unique and beautiful natural area. It will also protect an important archaeological site on Lake Pierce. This property is a major portion of the Catfish Creek Florida Forever project currently remaining in private ownership. This acquisition will connect the Allen David Broussard Catfish Creek State Preserve to the Lake Kissimmee State Park and create a sizeable regional park in central Florida. The entire parent tract is in the Lake Hatchineha water basin of which Parcel A will be managed by DRP as part of the Allen David Broussard Catfish Creek Preserve State Park and Parcel B will be managed by the District as part of their Upper Kissimmee River Headwaters Revitalization project. Pursuant to section 259.032(9)(e), F.S., staff recommends that the Board of Trustees designate the District as the managing agency for Parcel B, which contains 1,972.43 acres within the District's Upper Kissimmee River Headwaters Revitalization project. A large portion of the property could easily be restored to historic wetlands. It will be re-flooded, restored to wetlands and managed as a part of the District's Upper Kissimmee River Restoration Program. Section 259.032(9)(e), F.S., requires that the Board of Trustees, concurrent with its approval of the initial acquisition agreement within a project, "evaluate and amend, as appropriate, the management policy statement for the project as provided by section 259.035, F.S., consistent with the purposes for which the lands are acquired." The management policy statement for this project was included in the 2001 Florida Forever Annual Report adopted by the Board of Trustees on May 15, 2001. Staff recommends that the Board of Trustees confirm and modify the management policy statement as follows: The primary goals of management of the Catfish Creek project are: to conserve and protect environmentally unique and irreplaceable lands that contain native, relatively unaltered flora and fauna representing a natural area unique to, or scarce within, a region of this state or larger geographic area; to conserve and protect significant habitat for native species or endangered and threatened species; to provide areas, including recreational trails, for natural-resource-based recreation; to preserve significant archaeological or historical sites; and to protect water resources. 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 13, Pages 1-44) RECOMMEND APPROVAL |
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