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Cabinet
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AGENDA
BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND
AUGUST 28, 1997
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Item 1 Theodore F. Bass and Martha S. Bass Disclaimer
REQUEST: Consideration of an application for a disclaimer
for submerged lands beneath a boathouse encompassing 1,624 square
feet or 0.037 acre, more or less.
COUNTY: Okaloosa
LOCATION: Section 24, Township 02 South, Range 24 West
APPLICANTS: Theodore F. Bass and Martha S. Bass
STAFF REMARKS: The applicant has requested a disclaimer
to an area under a boathouse as "permanent improvements"
pursuant to the Butler Act (Chapter 8537, Acts of 1921) and section
253.129, F.S. The courts in several recent decisions (e.g., Jacksonville
Shipyards and Industrial Plastics) have held that wharfs
and docks constructed prior to the repeal of the Butler Act constitute
"permanent improvements" for which disclaimers are appropriate.
The boathouse is represented on a map of Fort Walton, Florida
dated November 1937 and an aerial photograph dated August 1954
shows the boathouse in existence. The boathouse was destroyed
by Hurricane Opal in the fall of 1995 but has since been rebuilt
in the same configuration of the original footprint with additional
docking facilities that will soon come under lease.
Staff recommends that because the lands subject to this disclaimer
are subject to the inalienable public trust under which the Grantor
acquired and holds title to sovereignty lands, a notice be included
in the disclaimer providing that, if Grantee permanently abandons
any of the improvements on and above said sovereignty lands and
as a result of the abandonment said improvements deteriorate and
wash away through a gradual, imperceptible process, all right,
title and interest in the lands beneath the improvements shall
automatically and immediately vest in Grantor, without further
notice to Grantee.
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 the proposed action is not subject
to the local government planning process.
(See Attachment 1, Pages 1-14)
RECOMMEND APPROVAL
Item 2 Pelican Harbor, Inc. Land Exchange
REQUEST: Consideration of a request to quitclaim approximately
0.5 acre of filled land to Pelican Harbor, Inc., in return for
a deed to approximately 11.5 acres of submerged land.
COUNTY: Collier
APPLICANTS: Pelican Harbor, Inc.
LOCATION: Vanderbilt Lagoon, Section 32, Township 48 South,
Range 25 East
CONSIDERATION: None
Board of Trustees
Agenda - August 28, 1997 Page Two
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Item 2, cont.
STAFF REMARKS: On March 18, 1975, the Board of Trustees
approved an application to construct 756 lineal feet of vertical
sea wall on Vanderbilt Lagoon and to backfill the area landward
of the sea wall with 1,900 cubic yards of fill. The applicant,
Joseph Garland, agreed to deed to the state approximately 11.5
acres of submerged land in the lagoon in exchange for authorization
to construct the sea wall. According to the Division of State
Lands' title records, no deed to the state for the submerged land
was ever made, nor did the Board of Trustees quitclaim the filled
area to the applicant. The current owner of the upland property,
Pelican Harbor, Inc., and a prospective buyer, Vanderbilt Partners,
Ltd., have requested a quitclaim for the area of fill behind the
sea wall in return for the deed to the submerged land to the state
in order to once and for all settle any questions of title.
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 2, Pages 1-8)
RECOMMEND APPROVAL
Item 3 Alice M. S. Robinson Option Agreement/Survey
Waiver/Cayo Costa Island CARL Project
REQUEST: Consideration of (1) an option agreement
to acquire approximately 5.67 acres within the Cayo Costa Island
CARL project from Alice M. S. Robinson; and (2) a request for
survey waiver.
COUNTY: Lee
LOCATION: Section 12, Township 44 South, Range 20 East
CONSIDERATION: $280,900
APPRAISED BY
REVIEW (Bowen) APPROVED PURCHASE OPTION
NO. OWNER ACRES (09/29/94) VALUE PRICE DATE
713001 Robinson 5.67 $295,700 $295,700 $280,900 180 days after
BOT approval
STAFF REMARKS: The Cayo Costa Island CARL project
is ranked number 6 on the CARL Mega-Multiparcel Project List approved
by the Board of Trustees on February 11, 1997, and is eligible
for negotiation under the Division of State Lands' Land Acquisition
Workplan. This project contains 1,932 acres, of which 1,649
acres have been acquired or are under agreement to be acquired.
After the Board of Trustees approves this agreement, 277 acres
or 14 percent of the project will remain to be acquired.
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 waiver of the requirement for a survey of these parcels is being requested pursuant to section 18-1.005, F.A.C., because, in the opinion of the Bureau of Survey and Mapping, the parcels to be acquired meet all of the following conditions:
Board of Trustees
Agenda - August 28, 1997 Page Three
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Item 3, cont.
While these parcels are being recommended for a waiver of survey
at this time, should the title commitment reveal a substantive
surveying or surveying related issue which impacts the parcels,
certified surveys will be provided by the purchaser prior to closing.
In cooperation with the managing agency, the Division of State
Lands will acquire any special purpose survey work necessary for
the effective management of the property.
Environmental site evaluations and, if necessary, environmental
site assessments will be provided by purchaser prior to closing.
A mass environmental site assessment was performed on this project
and no contaminants were discovered. Prior to closing, the managing
agency will perform site inspections and, as in prior purchases
in this project, unless contaminants are found, site specific
environmental site assessments will not be performed.
Cayo Costa Island is a member of a chain of sandy barrier islands,
including North Captiva, which protects the entrance to Charlotte
Harbor, one of the largest and most productive estuaries in Florida.
The Cayo Costa Island project will protect the beaches, dunes
and hammocks of these islands--the largest barrier islands in
natural condition in southwest Florida--while giving the residents
and tourists a beautiful natural shore to enjoy for years to come.
This property will be managed by the Division of Recreation and
Parks as part of Cayo Costa State Park.
This acquisition is consistent with section 187.201(10), F.S.,
the Natural Systems and Recreational Lands section of the State
Comprehensive Plan.
(See Attachment 3, Pages 1-15)
RECOMMEND APPROVAL
Item 4 The Nature Conservancy, Inc./Highlands
County Land & Title Co. /Assignment of Option Agreement/Lake
Wales Ridge Ecosystem CARL Project
REQUEST: Consideration of (1) an assignment of an option
agreement to acquire approximately 36.52 acres within the Lake
Wales Ridge Ecosystem (Highlands Ridge) CARL project from The
Nature Conservancy, Inc. (TNC); (2) a request for survey waiver;
and (3) a request for waiver of the appraisal requirements for
an 18.52-acre parcel in accordance with section 259.041(1), F.S.
COUNTY: Highlands
LOCATION: Sections 17 through 20, 28, 29, 32 and 33, Township 36 South, Range 29 East
Board of Trustees
Agenda - August 28, 1997 Page Four
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Item 4, cont.
CONSIDERATION: $141,110 ($137,000 for the acquisition; $4,110 for the purchase of the option agreement)
APPRAISED BY
REVIEW Miller APPROVED PURCHASE OPTION
NO. PARCEL ACRES (08/20/96) VALUE PRICE DATE
713002 Highlands County 18.00 $186,000* $186,000 $137,000 112 days
Land & Title Co. 18.52 N/A N/A N/A after BOT
36.52 $137,000 approval
* appraised value for the 72 lots only
STAFF REMARKS: The Lake Wales Ridge Ecosystem CARL project
is ranked number 1 on the CARL Priority Project List approved
by the Board of Trustees on February 11, 1997, and is eligible
for negotiation under the Division of State Lands' Land Acquisition
Workplan. This project contains 33,031 acres, of which 1,250 acres
have been acquired by Southwest Florida Water Management District
and 12,632.5 acres have been acquired or are under agreement to
be acquired by the Board of Trustees. If the Board of Trustees
approves this agreement, 19,111.98 acres or 58 percent
of the project will remain to be acquired.
Pursuant to a multi-party acquisition agreement entered into between
the Division of State Lands (DSL) and TNC, TNC has acquired an
option to purchase 72 platted lots (consisting of approximately
18 acres) and 18.52 acres from Highlands County Land & Title
Company, a Florida corporation. TNC was able to obtain an option
to purchase the 72 lots and the additional 18.52 acres for 73.6
percent of the approved value of the lots alone. While no appraisal
of the 18.52-acre parcel has been done, it is the opinion of staff
that an appraisal would have no benefit other than to further
justify the contract purchase price. Staff recommends that pursuant
to section 259.041(1), F.S., the Board of Trustees waive the requirement
for an appraisal of the 18.52-acre parcel because the public's
interest is reasonably protected and the transaction can be completed
without incurring additional appraisal costs. After this acquisition
is approved, the Board of Trustees will acquire the option from
TNC for $4,110, which represents agreed upon compensation to TNC
for overhead associated with acquiring the option. The Board
of Trustees may then exercise the option and purchase the property.
The assignment of option agreement provides that payment to TNC
is contingent upon the Board of Trustees successfully acquiring
the property from the owner. The assignment of option agreement
further provides that in no event will the purchase price for
the option and the purchase price of the property exceed the DSL
approved value of the property.
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 waiver of the requirement for survey of these parcels is being
requested pursuant to section 18-1.005, F.A.C., because, in the
opinion of the Bureau of Survey and Mapping, the parcels to be
acquired meet all of the following conditions:
Board of Trustees
Agenda - August 28, 1997 Page Five
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Item 4, cont.
While these parcels are being recommended for a waiver of survey
at this time, should the title commitment reveal a substantive
surveying or surveying related issue which impacts the parcels,
a certified survey will be provided by the purchaser prior to
closing.
The environmental site assessment will be provided by the seller
with the purchaser reimbursing the seller the DSL's approved cost,
not to exceed $3,950.
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 Lake Wales Ridge
Ecosystem CARL project is designed to protect the best remaining
tracts of this scrub and the ecosystems associated with it, thereby
preserving several endangered species and allowing the public
to see examples of the unique original landscape of the ridge.
This property will be managed by the Florida Game and Fresh Water
Fish Commission under a single-use concept as a unit of the Lake
Wales Ridge Ecosystem.
This acquisition is consistent with section 187.201(10), F.S.,
the Natural Systems and Recreational Lands section of the State
Comprehensive Plan.
(See Attachment 4, Pages 1-28)
RECOMMEND APPROVAL
Item 5 Florida Game and Fresh Water Fish Commission/Henry
C. Yates Option Agreement/Triple N Ranch Wildlife Management Area
REQUEST: Consideration of an option agreement to
acquire 2,095.52 acres within the Triple N Ranch Wildlife Management
Area by the Florida Game and Fresh Water Fish Commission under
the Preservation 2000 program from Henry C. Yates.
COUNTY: Osceola
APPLICANT: Florida Game and Fresh Water Fish Commission
LOCATION: Sections 11 through 18, Township 28 South,
Range 33 East
CONSIDERATION: $2,357,460
APPRAISED BY
REVIEW Holden Lentz APPROVED PURCHASE OPTION
NO. PARCEL ACRES (06/12/96) (06/12/96) VALUE PRICE DATE
713003 Yates 2,095.52 $2,305,000 $2,515,000 $2,515,000 $2,357,460 175 days
after BOT
approval
STAFF REMARKS: This acquisition was negotiated by the Florida Game and Fresh Water Fish Commission (GFC) under the P2000 program. This property is within the Triple N Ranch Wildlife Management Area and is ranked number 10 on the current GFC Acquisition List. Board of Trustees
Agenda - August 28, 1997 Page Six
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Item 5, cont.
The seller currently owns 904.72 acres and holds an option to
purchase an additional 1,190.80 acres. The seller's obligation
to convey property to the purchaser is contingent upon seller
acquiring fee simple title to the property prior to closing of
this transaction. Additionally, this property is subject to outstanding
oil, gas and mineral interest in favor of Consolidated Tomoka
Land Company. This outstanding interest affects approximately
904.72 acres. The seller will attempt to acquire the outstanding
interest prior to closing. In the event the seller is unable
to acquire the outstanding interest, staff recommends acquiring
the property subject to the outstanding interest. The Bureau
of Geology determined that the potential for oil, gas and mineral
production at this site is considered low and it does not appear
as though this parcel contains any major economic reserves, except
for peat, which is used for horticulture purposes in Florida.
The Bureau of Appraisal has indicated that the outstanding interest
does not affect the market value of the property. The GFC has
determined that the property can be effectively managed subject
to the outstanding oil, gas and mineral interest.
Improvements on the property consist of a mobile home, equipment
barn, shed, cow pens, and fencing. The Bureau of Appraisal indicated
that the subject's improvements are typical of ranch type properties
in the area and were not valued separately but as a part of the
overall property. The GFC will ascertain the best use of these
improvements as part of the management plan after closing.
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.
The certified survey and environmental site assessment will be
provided by the GFC prior to closing.
The property will be managed by the GFC as an addition to the
Triple N Ranch 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 1-26)
RECOMMEND APPROVAL
Item 6 James C. Abbey, et al., vs. DEP
and Joseph L. Abbott, MD, et al., vs. DOT, et al., Settlement
Agreement
REQUEST: Consideration of a settlement agreement in the
cases of James C. Abbey, et al., vs. DEP, United States
District Court, Middle District of Florida, Ft. Myers Division,
Case No. 92-296-CIV-FTM-25D; and Joseph L. Abbott, MD, et al.,
vs. DOT, et al., Twentieth Judicial Circuit, Collier County,
Case No. 88-3361-CA-01.
COUNTY: Collier
LOCATION: Southern Golden Gate Estates subdivision
Board of Trustees
Agenda - August 28, 1997 Page Seven
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Item 6, cont.
CONSIDERATION: Reappraisal of the approximately 31,000
acres remaining to be acquired in the Southern Golden Gate Estates
CARL project, and agreement to purchase at such appraised value
the approximately 7,500 acres/3,871 lots owned by the plaintiffs
in these two lawsuits.
STAFF REMARKS: In 1985, Southern Golden Gate Estates (SGGE)
was placed on the CARL list as part of the "Save Our Everglades"
project. SGGE initially involved approximately 53,000 acres held
by 19,619 owners, most of which consisted of 1.14 to 5.0 acre
residential lots developed by Gulf American Corporation (GAC)
during the 1960's. The mass appraisal performed in 1986-87 reflected
per acre values of $300 to $2,000, depending upon the topography
of the area of the subdivision in which the lots are located and
other market conditions. The lots located nearest I-75 have the
highest elevation and the elevation falls gradually as the subdivision
runs south towards U.S. 41. Unhappy with the appraisals and other
alleged governmental actions, 3,000 lot owners filed suit (Abbott,
et al) in Circuit Court in Collier County in 1988 claiming
that their property had been taken without compensation (inverse
condemnation). The defendants were Collier County, the Department
of Transportation (DOT), the Department of Environmental Regulation
(DER), the South Florida Water Management District, and the Department
of Natural Resources (DNR)/Board of Trustees. The allegations
against DNR/Board of Trustees were based upon "condemnation
blight", the contention that inclusion of the property on
the CARL list coupled with wrongfully low appraisals eliminated
all buyers but the State and effectively confiscated the property.
The second suit (Abbey, et al) is identical to the first
suit and was filed in 1992 when the Circuit Court refused to allow
additional plaintiffs to join the Abbott suit. The Abbey
suit was removed by defendants to United States District Court
for strategic reasons. By October 1994, all defendants in both
suits except DNR/Board of Trustees had been dismissed by plaintiffs,
and trials were scheduled to begin in January 1995, and April
1995, respectively. In December 1994, the United States District
Court dismissed the Abbey complaint for failure to state
a claim for inverse condemnation. The Abbey plaintiffs
appealed to the U.S. Court of Appeals, 11th Circuit (Atlanta),
Case No. USCA - 95-2131, and Abbott was stayed pending
the outcome of the federal case. In January 1997, the U.S. Court
of Appeals reversed the Abbey dismissal and remanded for
further proceedings. Settlement discussions had already begun,
and a joint motion was filed to stay the case pending settlement
negotiations.
A consequence of litigation and the accompanying perception that
the initial appraisals are artificially low has been the refusal
of lot owners to accept offers to purchase. After ten years of
effort, less than one-half of the property has been acquired:
7,618 lots consisting of 22,000 acres have been acquired to date
and 12,001 lots consisting of 31,032 acres remain in private ownership.
Of the latter, plaintiffs hold 3,871 lots representing 7,500
acres. The slow rate of acquisition now threatens the hydrological
restoration plan for this area of the Everglades developed last
year by the South Florida Water Management District at the request
of Governor Chiles.
The proposed settlement agreement calls for new appraisals under an open format where representatives of the plaintiffs participate in selection of the appraisers in order to eliminate allegations that the appraisals are not arms-length, and is structured to provide individual plaintiffs the option of approving or rejecting the settlement agreement subsequent to conceptual approval by the Board of Trustees. If 1,950 lot owners, or 50 percent, approve the settlement agreement, the State is obligated to purchase - and the lot owners to sell - the lots involved at the appraised value, and the plaintiff lot-owners are also afforded priority status in terms of accelerated closing dates. If fewer than 1,950 lot owners approve the proposal, the Board of Trustees still has the option, at its discretion, of making the agreement binding. The
Board of Trustees
Agenda - August 28, 1997 Page Eight
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Item 6, cont.
new appraisal will also be applicable to acquisitions of non-plaintiff
lots, but only after plaintiffs' lots have been acquired.
The settlement agreement further calls for joint efforts to dismiss
all remaining plaintiffs, if any, who choose not to participate,
under such terms as each Court deems appropriate.
(See Attachment 6, Pages 1-25)
RECOMMEND APPROVAL
Item 7
Chapter 18-21 F.A.C. Notice of Proposed Rulemaking
REQUEST: Consideration of approval to publish a notice
of proposed rulemaking regarding amendments to chapter 18-21,
F.A.C., to specify criteria for standard term sovereignty submerged
land leases, to add procedures for reviewing and taking action
on applications for extended term sovereignty submerged land leases,
and to amend the methodology for calculating lease fees.
COUNTY: Statewide
APPLICANT: Department of Environmental Protection (DEP)
STAFF REMARKS: The DEP, as staff to the Board of Trustees,
has initiated rulemaking to establish specific criteria for standard
and extended terms for sovereignty submerged land leases and to
modify the methodology for calculating lease fees. We are proposing
to modify section 18-21.008, Applications
for Lease, to:
Modifications are also proposed to
section 18-21.011, Payments and Fees, to:
On April 12, 1988, the Board of Trustees of the Internal Improvement Trust Fund adopted a policy that established a methodology for calculating extended term lease fees for applicants requiring lease terms that correspond to their construction loan terms as required by their financial lending institutions. Pursuant to the adopted policy, a special lease condition is
Board of Trustees
Agenda - August 28, 1997 Page Nine
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Item 7 , cont.
included in the extended term leases
that would ensure that the Board of Trustees' proprietary and
fiduciary duties would not be limited by long-term commitments.
The policy also provided for DEP review of the long-term leases
to be conducted every five years. This policy has not been adopted
by rule. At the Board of Trustees meeting of November 7, 1996,
staff was directed to make recommendations for the revision of
the rules that address, at a minimum, the fees charged for the
leases and easements, including those issued for public utilities,
the justification of public benefit of extended term leases, and
a need and public benefit of special discounts allowed in rule.
This rulemaking only addresses extended term leases and discounts.
The other items will be addressed in future rulemaking efforts.
The DEP conducted two public workshops on March 13 and 14, 1997,
in Pinellas and Palm Beach Counties to present preliminary rule
language and to gather comments and suggestions. Two follow-up
public workshops were conducted on May 14 and 15, 1997, in Tallahassee
and West Palm Beach to discuss the proposed rule and to receive
public comments. As a result of public input received at those
workshops, the proposed rule language has been revised.
Upon approval by the Board of Trustees, a notice of proposed rulemaking
will be published in the Florida Administrative Weekly. The notice
will include an opportunity for a public hearing which will be
held on October 9, 1997. Staff anticipates returning to the Board
of Trustees for final rule adoption on November 18, 1997.
(See Attachment 7, Pages 1-17)
RECOMMEND APPROVAL TO PUBLISH A NOTICE OF PROPOSED RULEMAKING
ON AMENDMENTS TO CHAPTER 18-21, F.A.C.