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Cabinet
Affairs |
AGENDA
BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND
JUNE 13, 1996
Item 1 Minutes
Submittal of the minutes of the April 23, 1996 Cabinet meeting.
RECOMMEND ACCEPTANCE
Item 2 Eminent Domain Policy Proposal
REQUEST: Consideration of the adoption of a policy on the
use of eminent domain.
LOCATION: Statewide
STAFF REMARKS: On August 22, 1995, the Board of Trustees
conceptually approved a proposed policy on eminent domain and
directed staff to hold at least three public workshops on the
proposed policy before returning for consideration of a final
policy. Workshops were held in Naples on November 15, 1995; in
Orlando on November 27, 1995; and in Milton on November 21, 1995,
and February 1, 1996. The workshops were attended by approximately
165 people, of which 40 spoke or provided written comments. A
summary of the comments regarding the eminent domain policy is
included in the backup.
The power to take private property for the public good is specifically recognized in the Florida Constitution in Article X, Section 6(a) which provides that "No private property shall be taken except for a public purpose and with full compensation therefore paid...". Prior to 1989, the Board of Trustees had not been granted any general power of eminent domain; however, from time to time, the legislature did grant the Board of Trustees or various state agencies the authority to take specific parcels of land through the use of eminent domain. In 1989, however, the legislature for the first time granted the Board of Trustees the authority to direct the then--Department of Natural Resources--to acquire any of the properties on the CARL list by exercising the power of eminent domain. See section 2 of chapter 89-276, Laws of Florida. The Board of Trustees' authority to use eminent domain was conditioned on the department's having been unsuccessful in its efforts to acquire the property through voluntary negotiations and a determination that the property was of special significance to the State for enumerated reasons. In addition, the Board of Trustees' ability to exercise the power was dependent on a unanimous vote of all seven members of the Board of Trustees. In 1990, the requirement for a unanimous vote was changed to the current requirement of a majority of seven members. See section 9 of chapter 90-217, Laws of Florida. With the exception that the controlling language has been moved from section 253.025(12), F.S., to section 259.041(13), F.S., it remains the same today.
Since its enactment in 1989, the Board of Trustees has authorized
the Department of Environmental Protection (DEP) to acquire CARL
property using eminent domain on only three occasions. The first
was to acquire the remaining parcels within North Key Largo. The
North Key Largo CARL project was first identified for state acquisition
in 1980 when it was called New Mahogany Hammock. Beginning in
1987, it has been ranked either number 1 or number 2 on the CARL
list every year. By 1992, staff had exhausted its efforts to acquire
property within the project using negotiation and requested the
authority to use eminent domain as a means of acquiring the remaining
properties. Staff recommended that all improved residential property
be excluded from the eminent domain resolution and not acquired
unless the owner was a willing seller and the Division of Recreation
and Parks identified a use for the structures. In addition, the
owner of a commercial aquaculture facility requested to be excluded
from the eminent domain resolution, and the Board of Trustees
agreed to his request. The second time eminent domain was used
was to acquire a 1,000-acre parcel within the Seminole Springs
CARL project. From 1988 to 1992, Seminole Springs and North Key
Largo alternated being ranked either first or second on the annual
CARL list. During this period, the state had been successful in
acquiring several significant parcels within the project, but
had reached impasse in its efforts
Board of Trustees
Agenda - June 13, 1996
Page Two
Item 2, cont.
to acquire a key 1,000-acre parcel that represented an inholding
within the state's existing ownership. Recognizing that having
a major residential subdivision built in the middle of tens of
thousands of acres of public resource lands was incompatible with
the goals of the state's acquisition and would present significant
impediments to successful management initiatives, the Board of
Trustees authorized DEP to resolve the value impasse by resorting
to eminent domain. Finally, eminent domain was approved in 1992
and 1994 to acquire the remaining four ownerships within the Topsail
Hill CARL project. Efforts to acquire those ownerships using voluntary
negotiations had been frustrated by a federal grand jury investigation
of previous land sales involving the same property as well as
a dramatic down zoning caused by the adoption of the county comprehensive
plan.
In the six and one-half years since being given the authority
to use eminent domain, the Board of Trustees has exercised that
authority just three times. In none of those instances has the
Board of Trustees ever voted to take a parcel of improved residential
property. In fact, in North Key Largo, improved residential properties
were specifically excluded from the condemnation resolution. Also
in North Key Largo, the Board of Trustees voted to exclude a parcel
of land because of the opposition of the land owner and a finding
that his commercial business could co-exist with the state park.
In virtually every case, eminent domain is used as a last resort
to resolve issues of value, and is not used to take property from
people who do not want to sell at all.
In spite of this track record, the Board of Trustees at its February
14, 1995, and August 22, 1995, meetings and DEP at the four public
workshops held on this policy continue to hear expressed general
feelings of fear and distrust related to eminent domain. Some
people expressed the opinion that there are no circumstances under
which the government should be allowed to take private property.
Others argued that environmental or resource protection do not
rise to the status of public necessity needed to support eminent
domain. There are other people, however, who strongly support
the CARL program and believe that acquisition of endangered lands
is a valid public purpose for which eminent domain may and in
appropriate circumstances should be used. DEP shares this last
view and believes that there are instances in which the use of
eminent domain as a last resort is warranted. Consequently, DEP
does not recommend that the Board of Trustees relinquish this
authority. On the other hand, DEP recognizes that eminent domain
is an extraordinary power of government that should only be used
in limited circumstances. Therefore, DEP supports the concept
of placing some reasonable restrictions on the broad authority
granted by the legislature. In that regard, DEP does not believe
it would ever recommend the use of eminent domain to acquire any
parcel of land not identified by the Land Acquisition Advisory
Council (LAAC) as essential to the success of the project. Much
of the opposition to the use of eminent domain came from citizens
who feared it would be used to take their family farms and residences.
To address this issue, DEP recommends exempting homestead property
as defined in the State Constitution unless the owner expressly
consents to the taking. This would allow an owner to exempt his
primary residence and up to 160 acres of contiguous land if located
outside an incorporated municipality. Finally, DEP has developed
a notice procedure to ensure that no property will be subject
to eminent domain unless the owner has been specifically notified
and given the chance to be heard.
Staff proposes that the policy, conceptually approved by the Board
of Trustees, be modified to read as follows:
1. The Board of Trustees will only use its eminent domain authority
if:
(A) The Department of Environmental Protection has made at least two bonafide offers to purchase the parcel which the landowner has rejected;
(B) The proposed managing agency indicates in writing that it
supports the need for the parcel's acquisition because either:
Board of Trustees
Agenda - June 13, 1996
Page Three
Item 2, cont.
(1) It involves an endangered or natural resource and is in imminent danger of development;
(2) It is of unique value to the state and failure to acquire it will result in irreparable loss; or
(3) The failure to acquire the parcel will seriously impair the
managing agency's ability to manage or protect other state-owned
land within the project; and
(C) The parcel is designated in the current CARL Annual Report as an essential parcel within the project in which it is located.
2. The Board of Trustees will not exercise its power of eminent
domain to acquire homestead property unless the owner consents
in writing to the use of eminent domain.
3. Prior to requesting the Board of Trustees to consider using
eminent domain, DEP shall mail to the owner of record, as the
name appears on the current property appraiser's tax roll, by
return receipt requested, a notice which does the following:
(A) States the date, time, and place of the Board of Trustees meeting where the use of eminent domain will be considered and provides information about how an owner may make an appearance and presentation;
(B) Provides a form that the owner may complete indicating whether the owner is willing to allow a court to determine the purchase price of the property or whether the owner opposes the use of eminent domain, and provides a place for written comments;
(C) Indicates that, if the property contains a residence that would qualify as homestead property under the provisions of Article X, Section 4 of the State Constitution, the Board of Trustees will not utilize eminent domain to take the property that so qualifies unless the owner consents to such taking in writing; and
(D) Provides a stamped return envelope also with a return receipt
and at least 45 days to respond.
(See Attachment 2, Pages 1-30)
RECOMMEND APPROVAL
Item 3 Dr. J. Robert Miles/Sale of State-Owned
Lands
REQUEST: Consideration of a request to purchase 575.26
square feet of state-owned land in the City of Treasure Island.
COUNTY: Pinellas
APPLICANT: Dr. J. Robert Miles
LOCATION: Lot 4, Block 1, Sunset Beach Subdivision, Unit
No.4
CONSIDERATION: $14,496.30
STAFF REMARKS: Dr. and Mrs. J. Robert Miles purchased a
beachfront lot in the City of Treasure Island in July of 1984.
There was a previous dwelling on the lot that was removed in 1993.
The Miles subsequently received approval of the Treasure Island
Planning Board and
Board of Trustees
Agenda - June 13, 1996
Page Four
Item 3, cont.
obtained the necessary permits to construct a new house on the
pilings of the old house. A small portion of the house and a wood
deck and balcony are located on state-owned land as indicated
by a mean high water line approved by the Board of Trustees in
1968 as part of a beach renourishment project.
Because the local government permitted the construction of the
new house, staff recommends that the applicant be allowed to purchase
575.26 square feet of the beach property to accommodate the improvements
for $14,496.30. The purchase price is based on the assessed value
of the lot divided by its tax roll area to arrive at a value of
$25.20 per square foot.
A consideration of the status of the local government comprehensive
plan was not made for this item. The Department of Environmental
Protection has determined that land conveyances are not subject
to the local government planning process.
(See Attachment 3, Pages 1-10)
RECOMMEND APPROVAL
Item 4 Department of Agriculture and Consumer
Services, Division of Forestry/TNC Purchase Agreement
REQUEST: Consideration of a purchase agreement to acquire
2,583 acres by the Department of Agriculture and Consumer Services,
Division of Forestry under the Preservation 2000 program from
The Nature Conservancy (TNC).
COUNTIES: Franklin and Liberty
APPLICANT: Department of Agriculture and Consumer Services,
Division of Forestry
LOCATION: Sections 21, 28, 29, 32 and 33, Township 05 South,
Range 05 West; Sections 03, 04, 10, 11, 14, 15, 21, 22, 27, 28
and 34, Township 06 South, Range 05 West; and Sections 03, 04,
09 and 10, Township 07 South, Range 05 West
CONSIDERATION: $5,095,997.69
REVIEW NO. 61001
APPRAISED BY PARCEL KING ROGERS APPROVED PURCHASE CLOSING NAME ACRES (02/1/96) (11/16/95) VALUE PRICE DATE New River 2,583 $5,096,300 $4,977,600 $5,096,300 $5,095,997.69 *
* 15 days after DSL approval of title commitment, survey, environmental
site assessment and closing documents
STAFF REMARKS: This acquisition was negotiated by the Department
of Agriculture and Consumer Services, Division of Forestry (DOF)
under the P2000 Additions and Inholdings Program. The parcel is
located within the Tate's Hell Carrabelle CARL project. Funding
is not currently available from the CARL Preservation 2000 Trust
Fund for this parcel.
All mortgages and liens will be satisfied at the time of closing.
In the event the commitment for title insurance, to be obtained
for the parcel prior to closing, reveals any other encumbrances
which may affect the value of the parcel or the proposed management
of the parcel, staff will so advise the Board of Trustees prior
to closing.
Board of Trustees
Agenda - June 13, 1996
Page Five
Item 4, cont.
TNC will provide a certified survey, environmental site assessment and title insurance prior to
closing with purchaser reimbursing the actual, reasonable cost
upon closing.
Once acquired, this property will be managed by the Department
of Agriculture and Consumer Services, Division of Forestry as
part of the Tate's Hell State Forest. This parcel is adjacent
to the Tate's Hell State Forest and will protect several miles
of the New River corridor and black bear habitat. This acquisition
will consolidate state forest boundaries and improve overall management
of the forest. This property will be managed for natural resource
conservation and outdoor recreation activities under a multiple-use
management regime.
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 1-29)
RECOMMEND APPROVAL
Item 5 Florida First Magnitude Springs (Weeki
Wachee) CARL Project/RFK, Inc. Option Agreement
REQUEST: Consideration of an option agreement to
acquire approximately 0.688 acre within the Florida First Magnitude
Springs (Weeki Wachee) CARL project from RKF, Inc.
COUNTY: Hernando
LOCATION: Section 35, Township 22 South, Range 17
East
CONSIDERATION: $50,000
REVIEW NO. 61003
APPRAISED BY
Dohring Schaefer APPROVED PURCHASE OPTION
PARCEL ACRES (05/18/95)(05/10/95) VALUE PRICE DATE
RKF,Inc. 0.688 $50,000 $51,000 $51,000 $50,000 08/30/96
STAFF REMARKS: The Florida First Magnitude Springs
(Weeki Wachee) CARL project is ranked number 14 on the CARL Priority
Project List approved by the Board of Trustees on February 14,
1995, and is eligible for negotiation under the Division of State
Lands' Land Acquisition Workplan. The Weeki Wachee portion
of the project contains 1,266.65 acres, of which 586.16 acres
have been acquired or are under agreement to be acquired.
After the Board of Trustees approves this agreement, 679.80 acres
or 53.6 percent of this portion of the project will remain to
be negotiated.
All mortgages and liens will be satisfied at the time of closing.
In the event the commitment for title insurance, to be obtained
prior to closing, reveals any other encumbrances which may affect
the value of the property or the proposed management of the property,
staff will so advise the Board of Trustees prior to closing.
A certified survey will be provided by the purchaser and the environmental
site assessment will be provided by the seller prior to closing.
Florida has approximately thirty first magnitude springs which discharge on average at least 100 cubic feet of water per second. Commercial, residential and agricultural run-off, clearcutting, mining, and unsupervised recreation can degrade the water quality of these springs and harm the
Board of Trustees
Agenda - June 13, 1996
Page Six
Item 5, cont.
Florida Aquifer. The First Magnitude Springs project is aimed
at protecting eight of these thirty springs by acquiring land
around or near the headwaters.
The Weeki Wachee Springs group forms the headwaters of the Weeki
Wachee (or Weekiwachee) River. The area around the Weeki Wachee
Springs pool has been extensively developed and is a well known
tourist attraction; however, at present the upper river is relatively
pristine and includes natural communities such as scrub, xeric
hammock, depression marsh, spring-run stream and aquatic caves.
In addition to the recreational activities associated with the
headspring attraction, hiking, bicycling, fishing, picnicking,
canoeing, camping, nature appreciation and natural resource education
can be accommodated.
This property will be managed by Florida Game and Fresh Water
Fish Commission in conjunction with the Chassahowitzka Wildlife
Management Area.
This acquisition is consistent with section 187.201(10), F.S.,
the Natural Systems and Recreational Lands section of the State
Comprehensive Plan.
(See Attachment 5, Pages 1-22)
RECOMMEND APPROVAL
Item 6 John Pennekamp Project/Dr. Howard F. Wallach
Option Agreement
REQUEST: Consideration of an option agreement to acquire 12.3 acres within the John Pennekamp Division of Recreation and Parks Additions and Inholdings project from Dr. Howard F. Wallach, Trustee.
COUNTY: Monroe
LOCATION: Section 22, Township 61 South, Range 39
East
CONSIDERATION: $189,600
REVIEW NO. 610002
APPRAISED BY
Johnston APPROVED PURCHASE OPTION
SELLER ACRES (8/04/95) VALUE PRICE DATE
Wallach 12.3 $237,000 $237,000 $189,600 11/30/96
STAFF REMARKS: The John Pennekamp project is ranked number 19
on the 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.
All mortgages and liens will be satisfied at the time of closing.
In the event the commitment for title insurance, to be obtained
prior to closing, reveals any other encumbrances which may affect
the value of the property or the proposed management of the property,
staff will so advise the Board of Trustees prior to closing.
A certified survey and environmental site assessment will be provided
by the purchaser prior to closing. The purchaser shall reimburse
the seller for seller's cost of title insurance, contingent upon
a sale of the property to purchaser.
This property will be managed as an addition to John Pennekamp
State Park by the Division of Recreation and Parks.
Board of Trustees
Agenda - June 13, 1996
Page Seven
Item 6, cont.
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 6, Pages 1-23)
RECOMMEND APPROVAL
Item 7 Saddle Blanket Lakes Scrub CARL Project/Termination
of TNC Option Agreement
REQUEST: Consideration of a request to terminate an option
agreement dated November 30, 1994, between The Nature Conservancy,
a nonprofit District of Columbia corporation, authorized to transact
business in the State of Florida as The Nature Conservancy, Inc.
(TNC), and the Board of Trustees of the Internal Improvement Trust
Fund of the State of Florida.
COUNTY: Polk
LOCATION: Sections 25, 26 and 36, Township 32 South, Range
27 East
STAFF REMARKS: On July 9, 1991, the Board of Trustees approved
the purchase of 77.86 acres within the Saddle Blanket Lakes Scrub
CARL project from TNC. This property, located in the eastern section
of the project, has closed and is in state ownership. This property
was acquired in anticipation of acquiring additional property
in the project.
On December 13, 1994, the Board of Trustees approved the purchase
of an additional 644.6 acres within the project from TNC. In preparation
for closing the second transaction, TNC experienced difficulty
in securing an acceptable title commitment and many surveying
problems developed. TNC has recently re-evaluated its position
on this transaction and determined that, for numerous reasons,
it would prefer to continue to own and manage this tract as a
TNC preserve.
TNC submitted a written request to the Division of State Lands
to terminate the agreement with TNC retaining the property for
incorporation into its nationwide system of preserves. If the
Board of Trustees authorizes the termination of the agreement,
the 77.86-acre parcel will remain as an isolated parcel under
the management of the Division of Recreation and Parks (DRP).
TNC has offered to exchange property it owns in the Catfish Creek
CARL project for the 77.86 acres. This would consolidate under
TNC ownership and management all of the property within the Saddle
Blanket Lakes Scrub CARL project and make for more efficient management.
In addition, DRP already manages the Catfish Creek CARL project,
and the TNC property would more appropriately be managed as part
of that larger property. The DRP supports TNC's request for termination
and is interested in pursuing the exchange.
(See Attachment 7, Pages 1-27)
RECOMMEND APPROVAL CONTINGENT UPON NEGOTIATING AN ACCEPTABLE
EXCHANGE OR PURCHASE AGREEMENT WITH TNC INVOLVING THE 77.86-ACRE
PARCEL
Board of Trustees
Agenda - June 13, 1996
Page Eight
Item 8 Kissimmee Prairie/River Ecosystem CARL
Project/South Florida Water Management District/Latt Maxcy Corporation
Purchase Agreement/Managing Agency Designation/Management Policy
Amendment
REQUEST: Consideration of (1) authorization to acquire
approximately an undivided 76 percent interest with the South
Florida Water Management District (District) in 36,659.95 acres
within the Kissimmee Prairie/River Ecosystem CARL project from
the Latt Maxcy Corporation; (2) designation of the Division of
Recreation and Parks as managing agency; and (3) evaluation and
amendment of the management policy statement for Kissimmee Prairie/River
Ecosystem CARL project.
COUNTY: Okeechobee
LOCATION: Sections 01-03, 11-15, 21-28 and 31-36, Township
33 South, Range 32 East; Sections 02-11, 14-23 and 26-35, Township
33 South, Range 33 East; Sections 01 and 02, Township 34 South,
Range 31 East; Sections 01-06, Township 34 South, Range 32 East;
Sections 02, 03, 05 and 06, Township 34 South, Range 33 East.
CONSIDERATION: up to $21,581,303.60 (The District's share
of the purchase price is $5,000,000 for the purchase of the property
plus $36,894 towards the purchase of the option. The Board of
Trustees' estimated share of the purchase price is up to $16,426,303.60
for the purchase of the property and $118,106 for the purchase
of the option.)
STAFF REMARKS: The Kissimmee Prairie/River Ecosystem CARL
project is ranked number 6 on the 1996 CARL Bargain\Shared Project
List approved by the Board of Trustees on February 13, 1996, and
will qualify for purchase under the Division of State Lands' FY96/97
Land Acquisition Workplan. The project contains 48,334 acres,
of which 11,674 acres will be acquired by the District under a
separate agreement. After the Board of Trustees authorizes this
acquisition, this project will be complete.
On May 29, 1996, the Board of Trustees authorized staff to enter
into an acquisition agreement with the District to acquire the
Kissimmee Prairie/River Ecosystem CARL project in accordance with
section 259.041(16), F.S. (1994) utilizing the procedures set
out in section 373.139, F.S.
The Nature Conservancy, on behalf of the District, contracted
to purchase the Latt Maxcy Corporation prairie parcel ownership
in fee simple utilizing District acquisition procedures set out
in section 373.139, F.S., at $21,006,180 or about 86 percent of
the approved value. The agreement includes a two percent upward
and downward adjustment to the purchase price based on final surveyed
acres. The agreement further provides for the seller to reserve
certain drainage rights over the property for the benefit of its
remainder property and use and occupancy of the property for cattle
grazing through the term ending December 31, 1996. It is also
believed that at least three cattle dipping vats exist on the
property. The District will perform an environmental audit and
survey work to determine the location of the vats. The agreement
provides for excluding the vats and a buffer area around the vats
from the acquisition. The seller will donate to the District a
conservation easement over the excluded area.
As provided for in the acquisition agreement, on May 9, 1996,
the Governing Board of the District adopted Resolution No. 96-17,
requesting reimbursement from the Board of Trustees for the costs
for acquisition of the prairie parcel. The resolution contains
all of the assurances required by the acquisition agreement.
The District will close the transaction and title to the parcel
will be held jointly by the District and the Board of Trustees.
The Board of Trustees' purchase price will be approximately 76
percent of the contract price plus approximately 76 percent of
the costs incurred in the purchase of the property. The Board
of Trustees' percentage will be calculated by dividing the Board
of Trustees' share of the purchase price by the final adjusted
purchase price paid to Latt Maxcy Corporation. As further provided
for in the acquisition agreement, the District may also request
Board of Trustees
Agenda - June 13, 1996
Page Nine
Item 8, cont.
reimbursement of Board of Trustees' share of its preacquisition
costs, excluding appraisal fees, and reimbursement of the Board
of Trustees' share of its closing costs (recording, title insurance
policy and survey costs). Pursuant to the agreement, the preacquisition
and closing costs will be reimbursed from CARL incidental expense
funds previously released by the Board of Trustees.
Pursuant to section 259.032(9)(b)2., F.S., staff recommends that
the Board of Trustees designate the Division of Recreation and
Parks as the managing agency of the property as a state preserve.
Section 259.032(9)(b)2., 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 1996 CARL Annual Report adopted by the Board
of Trustees on February 13, 1996.
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 8, Pages 1-15)
RECOMMEND: APPROVAL AND ACCEPTANCE OF MANAGEMENT POLICY
STATEMENT
Item 9 Larry E. Crosby Aquaculture Lease
REQUEST: (1) Consideration of a competitive, sealed bid
for a proposed sovereignty, submerged land aquaculture lease;
(2) acceptance of a bid of $50 per year, submitted by Larry E.
Crosby; and (3) the issuance of a ten-year sovereignty, submerged
land aquaculture lease, containing 2.0 acres of sovereignty submerged
lands, more or less.
COUNTY: St. Johns
No. 55-AQ-338
APPLICANT: Larry E. Crosby
LOCATION: Sections 35 and 2, Township 9 South, Range 30
East, in the Matanzas River, Class III waters, near the Town of
Crescent Beach, within the local jurisdiction of St. Johns County.
CONSIDERATION: $50, representing (1) an initial lease fee
of $20 per acre, or fraction thereof; and (2) an annual surcharge
of $10, representing $5 per acre or fraction thereof, for deposit
in the Marine Biological Trust Fund pursuant to section 370.16(4),
F.S.
STAFF REMARKS: The proposed project site was previously
leased to Gary L. Feldhamer by the Board of Trustees on October
10, 1989, for clam culture. No objections were received from anyone
in response to the notice to the four original lease applications.
The original parcel included four leases that preempted five acres:
three one-acre parcels and one two-acre parcel. Since the lessee
did not perform effective cultivation, Mr. Feldhamer's leases
were terminated by the Department of Environmental Protection
(DEP) on April 22, 1994.
Since the lease was vacant the DEP initiated a competitive bid process to offer the area to a new tenant. Larry E. Crosby filed an application to perform clam culture activities on 4.426 acres
Board of Trustees
Agenda - June 13, 1996
Page Ten
Item 9, cont.
of the site and was informed that the leases would be subject
to competitive bids.
The Division of Marine Resources recommended that the lease be
reduced to a single two-acre parcel and sought competitive bids
for the single parcel. The competitive bid process appeared to
be the most equitable method to offer this lease and best served
the public interest. This action marked the first time that the
DEP had sought competitive bids for submerged lands that would
be used for aquacultural purposes (including three leases in Brevard
County).
There was a general perception among the shellfish aquaculture
industry that competitive bidding would adversely affect prospective
applicants and the growth of this emerging industry. In efforts
to reach a compromise with the industry during the competitive
bid process, the DEP offered the original applicant the opportunity
to match the highest bid. The DEP accepted the lease application
from Mr. Crosby and informed him that a provision was included
that allowed him to match the highest bid.
The staff also advised Mr. Crosby that if the St. Johns County Board of County Commissioners (SJCBCC) would submit a valid resolution of objection to the proposed activity, his $200 application processing fee would not be refunded. Additionally, if no substantial objections were received and if he was not the high bidder, then the successful bidder would reimburse him for his application processing fee and the cost of the initial advertisement in the local newspaper. These provisions were determined to be appropriate for the site for the following reasons: (1) they are in conformity with section 18-21.004(2)(l)1, F.A.C., which states in part: "it shall be a policy of the State of Florida to foster aquaculture when the aquaculture activity is consistent with state resource management goals, proprietary interest, environmental protection and antidegradation goals . . ;" (2) the competitive bid was advertised in the St. Augustine Record; and (3) all potential bidders were required to submit a lease application for review for conformity under the same effective cultivation standards stipulated in chapter 18-21, F.A.C., and the terms and conditions of the lease instrument. No respondent expressed any concerns
about the provision for matching bids within the bid conditions.
Mr. Crosby was the only bidder.
St. Johns County's resolution was not received within the required
30-day local review period under section 253.68, F.S., that states
in part: "...said resolution shall be filed with the Board
of Trustees within 30 days of the date of the first publication
of notice as required by s. 253.70." The initial publication
date was January 27, 1995 (Ponte Vedra Recorder),
and the county's Resolution No. 95-114 was not adopted until June
13, 1995. The resolution was not documented to the department
by the SJCBCC until January 12, 1996. In order for that resolution
to have a legal standing in this case, it was required to be filed
on or before February 26, 1995. It was adopted four and one-half
months after publication, and filed for record 12 months after
the statutory period closed.
The SJCBCC's Resolution of Objection expressed the following concerns:
(1) the lease would exclude the public from common resources;
(2) the lease would restrict ingress and egress across the site;
(3) the methodology for clam aquaculture may adversely impact
sport and recreational fishermen; and (4) the aquaculture activity
would pose navigational hazards, create visual pollution, and
undermine property values.
The SJCBCC also filed a resolution objecting to the competitive bid of the proposed lease on March 6, 1996. Neither of the two resolutions precludes the DEP from proceeding with the review and approval process for the lease. Yet, the SJCBCC is now clearly opposed to the issuance of the proposed lease.
The proposed project is located within a conditionally-approved
shellfish harvesting area. The Division of Marine Resources completed
a resource assessment of the proposed project site and offered
a positive recommendation pursuant to the provisions in chapter
18-21.005, F. A. C.
Board of Trustees
Agenda - June 13, 1996
Page Eleven
Item 9, cont.
This recommendation was subject to the applicant accepting special
lease conditions and agreeing to reducing the size of the proposed
lease area from 4.426 acres to two acres. The lease modification
was recommended in order to: (1) exclude natural oyster reefs;
(2) provide a greater buffer zone between the lease and adjacent
salt marsh vegetation; and (3) provide an added buffer zone to
allow greater access to an adjacent tidal creek. The applicant
has agreed to reduce the size of the proposed lease area and to
the special lease conditions.
A local government comprehensive plan has been adopted for the
area pursuant to section 163.3167, F.S. The Department of Community
Affairs (DCA) has determined that the plan was not in compliance.
A compliance agreement between the DCA and the local government
was finalized. The proposed action is consistent with the adopted
plan.
(See Attachment 9, Pages 1-15)
RECOMMEND DEFERRAL
Item 10 J.L.O.G., Inc. Submerged Land Lease Modification
REQUEST: Consideration of an application for a modification
of a fiveyear sovereignty submerged land lease to contain
a total of 36,253.8 square feet, more or less, for a proposed
expansion of an existing commercial marina.
COUNTY: Putnam
Lease No. 540003832
Application No. 542425559
APPLICANT: J.L.O.G., INC.
(d/b/a Porky's Landing and Marina)
LOCATION: Section 41, Township 13 South, Range 26 East, in the St. Johns River, Class III Waters, near the town of Georgetown, within the local jurisdiction of Putnam County.
Aquatic Preserve: No
Outstanding Florida Waters: No
CONSIDERATION: $3,213.67 as the initial lease fee computed
at the base rate of $0.1070 per square foot, discounted 30 percent
because of the first-come, first-served nature of the facility,
and including the initial 25 percent surcharge payment for the
additional area. Sales tax will be assessed pursuant to section
212.031, F.S., if applicable. The lease fee may be adjusted based
on seven percent of the rental rate pursuant to section 18-21.011,
F.A.C.
STAFF REMARKS: The applicant is proposing to expand the
existing 19slip marina facility presently used in conjunction
with an upland restaurant and R.V./mobile home park by constructing
45 additional slips, thereby creating a 64-slip facility. The
project consists of adding 43 covered slips and two uncovered
slips, constructing a 300-foot long timber dock, extending the
existing "L"-dock by 40 feet, and removing an existing
hyacinth fence. A Planned Unit Development for the upland property
consists of phases which include removal of the R.V. sites and
mobile homes, expansion of the restaurant, and construction of
a 30-unit motel. The existing sovereignty submerged land lease,
approved by the Department of Environmental Protection (DEP) on
March 22, 1990, authorizes the preemption of 17,627 square feet
of sovereignty lands. The proposed addition is 18,626.8 square
feet, for a new total of 36,253.8 square feet.
All of the proposed slips will be maintained on an open to the
public, first-come, first-served
Board of Trustees
Agenda - June 13, 1996
Page Twelve
Item 10, cont.
basis which has been addressed as a special lease condition.
The applicant is also proposing to construct 230 linear feet of
wooden vertical bulkhead that has been authorized pursuant to
Delegation of Authority for use of state-owned submerged lands.
A site inspection on September 6, 1995, verified that the applicant
is in compliance with the existing lease and all fees are current.
The DEP wetland resource permit prohibits liveaboards in the proposed
slips and allows a fueling facility. Protection of grassbeds has
been addressed in the permit. The recommendations of the Division
of Marine Resources have been addressed in the permit. The project
was not required to be noticed.
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 is not in
compliance. In accordance with the Compliance Agreement between
DCA and the local government, an amendment has been adopted which
brought the plan into compliance. The proposed action is consistent
with the adopted plan as amended according to a letter received
from Putnam County.
(See Attachment 10, Pages 1-7)
RECOMMEND APPROVAL SUBJECT TO THE SPECIAL LEASE CONDITION AND
PAYMENT OF $3,213.67
Item 11 South Florida Water Management District/Overstreet/Ecobank
Mitigation Bank
REQUEST: Consideration of a request to use state sovereign
lands designated as policy lands for a mitigation bank as part
of the Kissimmee River Restoration Project.
COUNTY: Osceola
APPLICANT: South Florida Water Management District
(Overstreet/Ecobank Mitigation Bank)
CONSIDERATION: $2,000,000 savings in costs to the South
Florida Water Management District and the U.S. Army Corps of Engineers.
LOCATION: Sections 21, 27, 28, 33 and 34, Township 29 South, Range 31 East, on the
east side of Lake Kissimmee, within the local jurisdiction of
Osceola County.
STAFF REMARKS: The restoration of the Kissimmee River is
a priority of the federal government, the State of Florida, and
the South Florida Water Management District (SFWMD). The Board
of Trustees previously granted an easement to the SFWMD to all
state-owned lands within the federally approved Kissimmee River
Restoration Project to allow for the restoration activities. To
further facilitate the SFWMD's acquisition of other land needed
for the restoration project, the Board of Trustees adopted a resolution
on February 23, 1993, wherein it agreed not to assert the state's
claim of ownership to any land acquired by the SFWMD for the Kissimmee
River Restoration Project provided that the SFWMD does not convey
any interest to a third party and provided that the Trustees approve
any activities on these lands that are not enumerated in section
373.59, F.S. These lands are referred to as "policy lands."
In the course of acquiring property for this restoration project,
SFWMD had been negotiating with the Overstreets (property owners)
for the purchase of 595.06 acres (328.75 acres of which
Board of Trustees
Agenda - June 13, 1996
Page Thirteen
Item 11, cont.
are policy lands). The SFWMD must acquire these lands no later
than August 31, 1996, to meet the Corps of Engineers' (COE) schedule
for the restoration project. Before negotiations could be finalized,
Ecobank (a mitigation banking company) approached the Overstreets
with the suggestion that a mitigation bank be established at this
site. The Overstreets and Ecobank agreed to donate the land to
the SFWMD in exchange for being allowed to retain the right to
operate a mitigation bank on the property. The use of policy lands
as mitigation banks is not enumerated in section 373.59, F.S.;
therefore, the SFWMD is seeking the Board of Trustees' authorization
to allow the policy lands at the site to be used as part of a
mitigation bank.
The 596.06 acres contain a levee and degraded wetlands. As part
of the restoration project, the COE project requires a breach
of the levee to restore the wetlands. If a mitigation bank is
approved for this site, the restoration work would be conducted
and paid for by the banker, rather than the COE.
As part of the mitigation bank permit requirements, the SFWMD
and the state will receive a conservation easement over 400 additional
acres owned by the Overstreets which are adjacent to the acquisition
area. These additional acres are not required for the COE restoration
project, but will be included in the mitigation bank for a total
mitigation bank area of 995.06 acres. The U.S. Fish and Wildlife
Service has released approximately 40 of the nearly extinct whooping
cranes (Grus americana) on this parcel and adjacent land.
The restoration project will sustain and enhance the preferred
habitat of this endangered species.
Approval of this mitigation bank will preclude the necessity of
the COE performing the restoration work with public funds. The
proposal will result in a projected savings of approximately $2,000,000
as follows: $950,000 savings to SFWMD for the land acquisition;
$700,000 to the COE for the cost of restoration; and $350,000
for long-term management by SFWMD. The Overstreets and the mitigation
banker will establish a trust fund for the perpetual management
of the restored lands. Staff believes that the monies saved by
the SFWMD and the COE are sufficient compensation for the use
of the policy lands. Staff requests concurrence that the Board
of Trustees is willing to allow this savings to accrue to the
SFWMD and the COE in this unusual circumstance in lieu of requesting
that a percentage of the sale price of the mitigation credits
be paid to the Board of Trustees. In addition, staff recommends
that approval of the mitigation bank include a special condition
that mitigation credits from the bank cannot be used to offset
impacts to sovereign submerged lands.
(See Attachment 11, Pages 1-10)
RECOMMEND APPROVAL WITH SPECIAL CONDITION
Item 12 Palm Beach County Board of County Commissioners
Submerged Land Lease
DEFERRED FROM MAY 14, 1996 AGENDA
DEFERRED FROM MARCH 12, 1996 AGENDA
WITHDRAWN FROM FEBRUARY 13, 1996 AGENDA
REQUEST: Consideration of an application for a five-year
sovereignty, submerged land lease containing 22,508 square feet,
more or less, for a proposed public fishing pier.
COUNTY: Palm Beach
Application No. 502637596
APPLICANT: Palm Beach County Board of County Commissioners
(Juno Beach Pier)
Board of Trustees
Agenda - June 13, 1996
Page Fourteen
Item 12, cont.
LOCATION: Section 21, Township 41 South, Range 43 East, in the Atlantic Ocean, 3.6 miles south of the Jupiter Inlet, Class III waters, near the town of Juno Beach, within the local jurisdiction of Palm Beach County.
Aquatic Preserve: No
Outstanding Florida Waters: No
CONSIDERATION: $2,920.41 as the initial lease fee computed
at the base rate of $0.1038 per square foot and including the
initial 25 percent surcharge payment. Sales tax will be assessed
pursuant to section 212.031, F.S., if applicable. Fees may be
revised upon receipt of an acceptable survey.
STAFF REMARKS: The applicant is proposing to construct
a public fishing pier in conjunction with the county's Juno Beach
Park. The pier will extend into the Atlantic Ocean approximately
895 feet, with a 22-foot wide walkway. In the nearshore area of
the pier, the applicant is proposing to construct a 660 square-foot
bait shop and vending area. This bait shop is expected to be operated
or managed by a concessionaire with vending machines available
for the use of the pier patrons and is considered a non-water
dependent activity. The applicant has not determined the admission
fee to the pier, but anticipates the fee will be minimal. To ensure
long-term applicability of the conditions being imposed for the
protection of sea turtles and in light of the commercial nature
of the bait shop, staff does not recommend a waiver of lease fees.
The site of the proposed pier is on a Palm Beach County beach
that contained a record number of turtle nests during the past
nesting season and has historically been the heaviest nesting
beach in the state. In 1990, 773 nesting sites were located on
the beaches within one-half mile north and south of the proposed
pier location. In 1995, there were 1,464 nesting sites within
the same area. These nests are primarily used by three species
of marine turtles: green, loggerhead, and leatherback turtles.
Since the applicant is proposing to operate the pier at night,
the proposal includes lighting the walkway, the area under the
main access pier, and around the terminal platform, bait shop,
and vending machine areas. This presents staff with substantial
concerns because unrestricted lighting and human activity on the
beach area has been shown to significantly impact turtle nesting
activities and to disorient hatchlings when leaving the nest.
This lighting may result in an adverse impact on the hatchlings.
To address these concerns, staff requested the Bureau of Protected
Species (BPS) of the Division of Marine Resources to review the
potential impacts that construction and use of the pier may have
on the nesting and hatching activities of sea turtles.
The BPS review states that potential adverse impacts would be
lessened with the imposition of special lease conditions. The
conditions address the hours of operation of the pier, lighting,
location of construction equipment, informational displays regarding
hooking or snagging a marine turtle, establishing medical care
procedures, removal of discarded fishing gear, annual reports
of nesting survey data and other activities, and timing of construction
activities. Prior to construction, the applicant must provide
a plan describing the handling and salvaging of hook and line
captured marine turtles from the pier, a marine turtle nest survey
and monitoring plan, and a lighting plan for the pier.
Because of potentially significant adverse impacts to marine turtles,
staff recommends approval of the lease only if these conditions
are included in the lease. The applicant has agreed to comply
with all of these conditions.
This project qualifies for processing under the delegations of
authority. However, in light of heightened public concern, its
potential effect on the environment, and controversial nature,
staff is of the opinion that this project should be elevated to
review by the Board of Trustees.
Approximately 234 individuals have written in support of the project; and resolutions of support
Board of Trustees
Agenda - June 13, 1996
Page Fifteen
Item 12, cont.
from the City of Palm Beach Gardens, City of Riviera Beach, Northern
Palm Beaches Chamber of Commerce, and Jupiter/Tequesta/Juno Beach
Chamber of Commerce have been received.
Additionally, a petition of 3,000 names was submitted to Palm
Beach County in support of the project in 1988. Approximately
836 individuals have written or signed petitions in opposition
to the project; and the Town of Jupiter (via resolution) opposes
the project. The Town of Juno Beach originally stated opposition
to the project; however, no vote was taken by the council. Organizations
expressing opposition to the pier include Swimmers and Taxpayers
Opposing the Pier (STOP), Reef Environmental Education Foundation,
Humane Society of the United States, and Sea Turtle Survival League.
These comments in opposition to the project cover a variety of
concerns, including the potential for adverse impact to turtles,
the turtle nesting area/habitat, the presence of a public fishing
pier within a residential area, and inadequate parking. Staff
is of the opinion that these concerns have been addressed by the
recommended special lease conditions or they represent local land
use issues or concerns which are not within the jurisdiction of
the Department of Environmental Protection.
It is important to note that this request is being presented as
an incomplete application at the applicant's request. The applicant
is pursuing the outstanding items needed for completion, except
for the lease survey, for which the applicant does not want to
expend funds unless the request is approved. Staff has no objections
to this request. If the lease is approved, staff will require
the applicant to provide the items listed as special approval
conditions prior to the issuance of an executed lease and prior
to commencement of any construction activities.
The items which presently remain outstanding are: (1) a final
determination of who will operate the facility (concessionaire
or county staff); (2) the various plans and studies requested
by the BPS; and (3) the required survey and legal description
of the proposed lease area. Additionally, the application for
a coastal permit to the Bureau of Beaches and Coastal Systems
is complete except for Board of Trustees' authorization and will
be processed separately from this action.
The Board of Trustees authorized a rule amendment on September
14, 1995, to "link" the two processes of regulatory
and proprietary reviews and authorizations. Because this application
was received prior to October 12, 1995, the effective date of
the linkage rule, the two decisions can be made separately. The
Intent to Issue a wetland resource permit was signed March 8,
1996. The Intent to Issue has been challenged by the Town of Jupiter,
Peter and Christina Gandolfo, Seppala Corporation, Joseph and
Donna Sanzari, and Marjorie and Lieber Nataupsky. An administrative
hearing has not been scheduled. Therefore, staff (and the challengers)
request that the Board of Trustees consider the request now, rather
than waiting for resolution of the challenge, so that, if necessary,
any challenge to the issuance of the lease can be combined with
the wetland resource permit challenge and be considered by the
hearing officer at the administrative hearing when one is scheduled.
Section 163.3194(3)(b), F.S., in summary, states that a local
development approved or undertaken by a local government shall
be consistent with the comprehensive plan if it meets all criteria
of the plan and all other criteria enumerated by the local government.
The proposed action is consistent with the adopted plan according
to a letter received from Palm Beach County.
(See Attachment 12, Pages 1-10)
RECOMMEND APPROVAL SUBJECT TO THE SPECIAL APPROVAL CONDITIONS,
THE SPECIAL LEASE CONDITIONS, AND PAYMENT OF $2,920.41