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AGENDA BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND
FEBRUARY 23, 1999
Item
1 Matson/Miller Option Agreements/Watermelon Pond CARL Project REQUEST:
Consideration of two option agreements to acquire 211 acres within the
Watermelon Pond CARL project from Duffield Walker Matson, III, et al,
and Robert D. Miller, et al. COUNTIES:
Alachua and Levy LOCATION:
Sections 09 and 16, Township 11 South, Range 17 East CONSIDERATION:
$175,500 APPRAISED BY REVIEW Santangini APPROVED PURCHASE OPTION NO. PARCEL ACRES (12/01/97) VALUE PRICE DATE 903001 Matson/9 170.9 $151,000 $151,000 $135,500 150 days 903002 Miller/14 40.1 $ 50,000 $ 50,000 $ 40,000 after BOT 211.0 $201,000
$175,500 Approval STAFF
REMARKS: The Watermelon Pond CARL project is ranked number 16 on the
CARL Priority Project List approved by the Board of Trustees on February
10, 1998, and is eligible for negotiation under the Division of State
Lands' Land Acquisition Workplan. The project contains 16,600 acres, of
which 4,805 acres have been acquired or are under agreement to be acquired.
After the Board of Trustees approves these agreements, 11,584 acres or
70 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 commitments for title insurance, to be obtained prior to closing,
reveal any other encumbrances which may affect the value of the properties
or the proposed management of the properties, staff will so advise the
Board of Trustees prior to closing. Both the
Miller parcel and the Matson parcel do not have legal access. The contract
for the Miller property incorrectly states that the property will be conveyed
with legal access. The Miller contract will be amended prior to closing
to reflect the lack of access. Both properties were appraised without
legal access and this lack of access is reflected in the purchase price.
The Department of Agriculture and Consumer Services, Division of Forestry
(DOF), the future managing agency, has determined that the parcels can
be managed effectively without legal access. Title insurance
policies, surveys, environmental site evaluations and, if necessary, environmental
site assessments will be provided by the purchaser prior to closing. In southwestern
Alachua County, the original landscape of dry longleaf-pine sandhills
pocked with marshes and lakes, important for wildlife, has been much reduced
by agriculture and encroaching ranchettes. The Watermelon Pond CARL project
will conserve part of this original landscape for wildlife such as fox
squirrels and sandhill cranes and for plants like scrub bay, for the protection
of the groundwater supply of the county, and for the public to enjoy for
years to come. These parcels
will be managed by the DOF as a part of the Goethe State Forest. These acquisitions
are consistent with section 187.201(10), F.S., the Natural Systems and
Recreational Lands section of the State Comprehensive Plan. (See Attachment
1, Pages 1-56) RECOMMEND
APPROVAL
Item
2 Seven Option Agreements/Two Purchase Agreements/Corkscrew
Regional Ecosystem Watershed CARL Project REQUEST:
Consideration of authorization to acquire 100 percent interest in 70 acres
within the Corkscrew Regional Ecosystem Watershed CARL project from nine
separate owners. COUNTY:
Lee LOCATION:
Sections 26 and 27, Township 47 South, Range 26 East CONSIDERATION:
$120,500 STAFF
REMARKS: The Corkscrew Regional Ecosystem Watershed (CREW) CARL project
is ranked number 11 on the CARL Bargain\Shared Project List approved by
the Board of Trustees on February 10, 1998, and qualifies for purchase
under the Division of State Lands' Land Acquisition Workplan. The project
contains 59,008 acres, of which 20,055 have been acquired by the South
Florida Water Management District (District) and Lee County, and 1,029.5
acres have been acquired or are under contract to the Board of Trustees.
After the Board of Trustees approves this agreement, 37,853.5 acres or
64 percent of this project will remain to be acquired. When the
CREW project was added to the CARL list in 1991, a limit was placed on
the CARL involvement to encourage local participation in the project.
The project was initially planned to be a four party project with equal
participation by Lee and Collier counties, the District and the Board
of Trustees. To encourage this participation, the Land Acquisition Advisory
Council (LAAC) placed both a geographical and financial restriction on
the CARL participation in the project. Based on the fact that the Board
of Trustees' share of the overall purchase was to be 25 percent and the
initial project cost estimate was $40 million, a $10 million "cap"
was imposed and acquisition efforts were limited to the Camp Keis Strand
Corridor. While both
Lee County and the District began acquiring land within the project, participation
by the Division of State Lands and Collier County was stalled. In the
CARL acquisition area (Camp Keis Strand), the Collier family was the largest
owner. They were pursuing an exchange with the federal government and
were unwilling to consider a sale to the Board of Trustees while these
efforts were underway. Collier County's bond referendum did not pass and
it has been unable to contribute to the project. On November
20, 1992, the LAAC modified the project design to remove the geographical
restriction (Camp Keis Strand) but maintained the $10 million cap. The
LAAC also limited the CARL match to acquisitions made by the District
after the date of the LAAC meeting. Following this decision, staff began
working with the District to identify lands purchased that would qualify
for the CARL match. Various options to pursue cooperative purchases were
considered. In 1994,
the legislature enacted section 259.041, F.S., which provided the authority
to adopt District procedures for joint acquisitions. On June 27, 1995,
the Board of Trustees authorized staff to enter into an acquisition agreement
with the District to acquire various ownerships located within the CREW
CARL project in accordance with section 259.041(16), F.S. utilizing the
procedures set out in section 373.139, F.S. At the time the original agreement
was entered into, the LAAC-imposed cap on funding was still in effect.
The District had already made some purchases in the project and requested
that the Board of Trustees match the District's contribution by paying
100 percent of the cost until the Board of Trustees' expenditures equaled
the District's. However, since the estimated cost of the parcels remaining
to be acquired in the project exceeded $20 million, a 50/50 match on each
succeeding acquisition would exhaust the Board of Trustees' funding limit
of $10 million before the project acquisition was completed. For this
reason, a 50/50 agreement was recommended and approved.
On October
30, 1995, the LAAC expanded the project boundary, eliminated the $10 million
cap and designated the project a shared acquisition with the District.
As a shared acquisition, the District and the Board of Trustees are each
expected to spend the same amount in acquiring land within the project.
Since the District has already made some purchases for which it would
be credited, staff agreed that it would be appropriate for the Board of
Trustees to match those purchases called for under the acquisition agreement.
Therefore, the acquisition agreement was amended to provide that the Board
of Trustees purchase $13,360,000 worth of land in the project at its sole
cost and expense before the 50/50 shared acquisitions will resume. The
District has provided documentation, acceptable to the Division of State
Lands, establishing the District's expenditure in this project. Following
the Board of Trustees' authorization of these acquisitions, $1,728,704
worth of land will have been purchased by the Board of Trustees towards
matching the District's purchases in this project. The remaining matching
balance will be $11,631,296. The District
has acquired seven options to purchase seven parcels from The Nature Conservancy,
Inc., and two agreements for sale and purchase, all at 100 percent of
appraised value. Pursuant to the terms of the amended acquisition agreement,
the District shall be reimbursed for all costs associated with acquiring
the nine properties, including pre-acquisition and closing related costs.
The Board of Trustees' purchase price will be 100 percent of the contract
price negotiated by the District plus 100 percent of the cost incurred
in the purchase of the property. Title to the property acquired will vest
in the Board of Trustees. As provided
for in the amended acquisition agreement, the Governing Board of the District
adopted Resolutions 98-118 and 98-119 requesting the Board of Trustees'
share of the purchase price for the nine parcels, reimbursement of 100
percent of its pre-acquisition and reimbursement of 100 percent of its
closing costs. Pursuant to the amended acquisition agreement, the pre-acquisition
and closing costs will be reimbursed from CARL incidental expense funds.
The District's resolutions contain all of the assurances required by the
amended acquisition agreement. These properties
will be managed by the District as a conservation and preservation area
with passive public use. These acquisitions
are consistent with section 187.201(10), F.S., the Natural Systems and
Recreational Lands section of the State Comprehensive Plan. (See Attachment
2, Pages 1-15) RECOMMEND
APPROVAL Item
3 The Conservancy of Southwest Florida, Inc. Option Agreement/Survey
Waiver/Rookery Bay CARL Project REQUEST:
Consideration of (1) an option agreement to acquire 1.43 acres within
the Rookery Bay CARL project from The Conservancy of Southwest Florida,
Inc.; and (2) a request for survey waiver. COUNTY:
Collier LOCATION:
Section 31, Township 51 South, Range 26 East CONSIDERATION:
$1,073 APPRAISED BY REVIEW Bowen APPROVED PURCHASE OPTION NO. PARCEL ACRES (07/01/92) VALUE PRICE DATE 903003 Conservancy/182 1.43 $1,073 $1,073 $1,073 150 days after BOT approval STAFF
REMARKS: The Rookery Bay CARL project is ranked number 4 on the CARL
Substantially Complete Project List approved by the Board of Trustees
on February 10, 1998, and is eligible for negotiation under the Division
of State Lands' (DSL) Land Acquisition Workplan. The project contains
13,482 acres, of which 11,756.36 acres have been acquired or are under
agreement to be acquired. After the Board of Trustees approves this agreement,
1,724.21 acres or 13 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 this parcel is being requested pursuant
to section 18-1.005, F.A.C., because, in the opinion of the Bureau of
Survey and Mapping, the cost of the survey would be prohibitive relative
to the expected value of the parcel. While this
parcel is being recommended for a waiver of survey at this time, should
the title commitment and field inspection reveal a substantive surveying
or surveying related issue which impacts the parcel, a certified survey
will be provided by the purchaser prior to closing. In the event a full
survey is waived, a professional land surveyor will inspect the property
for any visible evidence of improvements or potential boundary issues.
In cooperation with the managing agency, the DSL will acquire any special
purpose survey work necessary for the effective management of this property. A title
insurance policy, an environmental site evaluation and, if necessary,
an environmental site assessment will be provided by the purchaser prior
to closing. Rookery
Bay is an outstanding subtropical estuary in the fastest growing part
of Florida. Its mangroves shelter important nesting colonies of water
birds, and feed and protect many aquatic animals. These animals in turn,
are the foundation of commercial and recreational fisheries. The Rookery
Bay CARL project will protect the bay's water quality and its native plants
and animals and will provide recreational opportunities to the people
of southwest Florida. As an addition to the Rookery Bay National Estuarine
Research Reserve, the project will also further coastal ecosystem research
and environmental education. This property
will be managed by the Division of Marine Resources as part of the Rookery
Bay National Estuarine Research Reserve. 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 1-17) RECOMMEND
APPROVAL
Item
4 Department of Corrections/Bid Acceptance/Land Sale REQUEST:
(1) Consideration of a request by the Department of Corrections to
sell a 0.32-acre parcel of state-owned land in Alachua County; and (2)
acceptance of the highest bid in the amount of $245,000, submitted by
Capital Assets Group. COUNTY: Alachua Deed No.
30306 APPLICANT:
Department of Corrections (Corrections) LOCATION:
A portion of Section 05, Township 10 South, Range 20 East CONSIDERATION:
$245,000, to be deposited in the Internal Improvement Trust
Fund (IITF) or Conservation and Recreation Lands (CARL) Trust Fund, pursuant
to section 253.034(6)(d), F.S. STAFF REMARKS: The Board of Trustees acquired this property in 1975 for management by Corrections (successor to the Department of Health and Rehabilitative Services, Division of Corrections). The property has been used as the Gainesville Community Correctional Center and consists of two 2-story structures containing approximately 4,923 square feet. Corrections received authority through the 1998/1999 General Appropriations Act to sell, trade, exchange or otherwise dispose of the subject property upon approval of a majority of the Board of Trustees and deposit the sales proceeds in the Corrections' Grants and Donations Trust Fund to be used to acquire, construct and maintain correctional facilities.
Florida
cases have held that an appropriations bill cannot amend existing substantive
law. The applicable language in the 1998/1999 General Appropriations Act
appears to amend substantive law in two respects. First, it authorizes
Corrections to sell the property upon approval of a majority of the Board
of Trustees, while section 253.02(2), F.S., requires the approval of at
least five members of the Board of Trustees for the sale of state-owned
lands. Second, the language in the 1998/1999 General Appropriations Act
directs the sales proceeds to Corrections' Grants and Donations Trust
Fund, while section 253.034(6)(d), F.S., requires the first $500,000 in
sales proceeds to be deposited in the Internal Improvement Trust Fund.
Any sales proceeds in excess of $500,000 are to be placed in the CARL
Trust Fund. In order to resolve this matter and accommodate Corrections, staff recommends that this sale comply with the provisions of sections 253.02(2) and 253.034(6)(d), F.S. To comply with section 253.02(2), F.S., the transaction will require the approval of at least five members of the Board of Trustees. To comply with section 253.034(6)(d), F.S., the Department of Environmental Protection (DEP) will deposit the sales proceeds in the Internal Improvement Trust Fund or CARL Trust Fund and Corrections should seek a specific appropriation to spend the monies for acquisition, construction or maintenance of correctional facilities. Corrections is willing to accept this solution in light of the statutory issues and with the understanding that Corrections receives all the sales revenues from DEP upon appropriation by the Legislature.
Corrections
has complied with all other requirements of section 253, F.S., to surplus
state-owned lands. Corrections provided notice of the proposed sale to
the county and owners of land within 500 feet of the property pursuant
to sections 253.111, and 253.115, F.S. No objections were received, and
no public agency expressed any interest in managing this parcel or gave
any reason for maintaining state ownership of the parcel. On October 15,
1998, the Land Acquisition and Management Advisory Council recommended
that the property be declared surplus. The property was subsequently declared
surplus by the DEP under delegation of authority. Corrections
contracted to have the property appraised. The market value of the property
on February 18, 1998, as appraised by Don Emerson, Jr., MAI, SRA, and
William Emerson, MAI, was $228,000. Corrections offered the property for
sale by sealed competitive bid on January 6, 1999. The following is a
tabulation of the offers received and considered by the advertised deadline: OFFER
SUBMITTED BY AMOUNT OF BID Capital
Assets Group $245,000 Brian Phegley
$231,001 Corrections
has recommended acceptance of the high bid. A consideration
of the status of the local government comprehensive plan was not made
for this item. The DEP has determined that land conveyances are not subject
to the local government planning process. (See Attachment
4, Pages 1-25) RECOMMEND
APPROVAL SUBJECT TO PROCEEDS BEING DEPOSITED PURSUANT TO SECTION
253.034(6)(d), F.S.
Item
5 Pan American Construction, L.P. Mining Lease Modification/Bid
Requirement Waiver REQUEST:
Consideration of a request to (1) waive the competitive bid requirements
of section 18-2.018(3), F.A.C.; (2) extend the term of that portion of
lease number 2429, containing 430 acres, more or less, assigned to Pan
American Construction, L.P., for one additional five-year term followed
by five succeeding one-year terms; and (3) increase the royalty payments. COUNTY: Dade Lease Number
2429 APPLICANT:
Pan American Construction, L.P., a Delaware limited partnership LOCATION:
Section 23, Township 53 South, Range 39 East CONSIDERATION:
Minimum annual rental payment of $20,000 to be credited against a
royalty of $0.10 per short ton or 5.5 percent of actual sales, whichever
is greater, of limerock extracted. STAFF
REMARKS: On April 14, 1970, the Board of Trustees leased 1,000 acres,
more or less, to Seminole Rock Products, Inc., (Seminole) for limerock
mining. The lease was granted for an initial term of ten years, with two
additional 10-year extensions. In return, Seminole agreed to pay $25,000
in rent for each of the first two years of the lease and $40,000 per year
thereafter. Under the lease, these rental payments were to be credited
annually against royalties of seven cents per short ton or four percent
of sales. Mining of the property commenced in 1972. On June
17, 1974, the Board of Trustees consented to Seminole subleasing its leasehold
interest to Vulcan Materials, Inc. (Vulcan). On February 27, 1987, Seminole
formally assigned its rights under the lease to Vulcan, which then became
the sole lessee. On May 17, 1996, Vulcan assigned its "Section 22" rights under lease number 2429 to Florida Rock Industries, Inc. (FRI). The $40,000 minimum annual rental payment was divided evenly between the two lessees. On June 12, 1997, the Board of Trustees agreed to extend the lease to FRI for two additional 10-year terms.
On March
18, 1997, Vulcan assigned its remaining rights under lease number 2429
to Pan American Construction L.P. (Pan American). Vulcan assigned to Pan
American "that part of Section 23, Township 53 South, Range 39 East,
described in the lease except for the West 150 feet of the South 2,260
feet and less the South 660 feet thereof." This assigned area is
characterized in the assignment as "Section 23." Pan American
is now requesting that the Board of Trustees amend that portion of lease
number 2429 assigned to Pan American by extending the term for one additional
five-year term followed by five succeeding one-year terms. The parcel
has been substantially mined, but additional time is needed to extract
the remaining resources. In consideration for the Board of Trustees' grant
of this lease amendment, Pan American has agreed to increase the royalty
and payment terms of the lease which have not changed since 1970. Pan American
will continue to guarantee its $20,000 portion of the minimum annual rental
payment which will be credited against a royalty of ten cents per short
ton (versus the current seven cents per short ton) of limerock extracted,
or five and one-half percent of sales (versus the current four percent
of sales), whichever is greater. The royalty will be adjusted annually
based on the Producer Price Index (PPI) for construction sand, gravel
and crushed stone. The upward or downward adjustment of the royalty rate
based on changes in the PPI shall not exceed a change of more than five
percent compared to the royalty rate for the immediately preceding year.
In no event will the royalty be less than ten cents per short ton. Pan
American will supply monthly operating reports showing the tonnage extracted
from the Section 23 leasehold during the previous month. As soon as royalties
exceed the $20,000 guaranteed rental payment, Pan American will furnish
the Board of Trustees with monthly royalty payments in accordance with
the monthly reports of mined material. Should royalties on actual tonnage
extracted on an annual basis by Pan American be worth less than $20,000,
no carry forward of rental credit will apply, and under no circumstances
will the Board of Trustees return on the lease be less than $20,000 per
year. Pursuant
to section 18-2.018(2)(i), F.A.C., the Board of Trustees shall award authorization
for uses of state-owned land on the basis of competitive bidding rather
than negotiation unless otherwise determined to be in the public interest.
Mining has occurred on the site since April 1970, and the amount of resources
remaining to be extracted is limited. It is unlikely that another company
would be willing to incur the costs associated with setting up a new mining
operation for such limited resources. The Board of Trustees would also
lose revenue during the period of time required to set up a new mining
operation. Pan American is already on site and mining and is in a better
position than a new lessee to maximize both the short and long term return
of economic value to the state. Therefore, staff recommends that the Board
of Trustees waive the competitive bidding process. Pursuant
to section 18-2.018(1)(a), F.A.C., the decision to authorize the use of
Trustees-owned uplands requires a determination that such use is not contrary
to the public interest. Since this request extends an existing use, the
Board of Trustees has already made its determination with regard to the
probable impacts of the proposed activity on the uplands. 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. (See Attachment
5, Pages 1-15) RECOMMEND
APPROVAL
Item
6 Stella Quitclaim Deed REQUEST:
Consideration of (1) the issuance of a quitclaim deed to permit the reclamation
of a 0.2303-acre parcel (10,035 square feet) of land lost as a result
of artificial erosion and avulsion; and (2) a request to waive the fee. COUNTY:
Broward APPLICANTS:
Stephen Stella and Patricia Stella LOCATION:
Section 17, Township 50 South, Range 42 East CONSIDERATION:
$15,000 as calculated under the provisions of Rule 18-21.019, F.A.C. The
applicants have requested that the Board of Trustees waive the fee in
recognition of the cost of the mitigation being required as a condition
of the Environmental Resources Permit issued for the project. STAFF
REMARKS: The applicants are requesting to purchase lands lost as a
result of artificial erosion and avulsion. The unprotected shoreline has
been eroding due to boat traffic on the South Fork of the New River. The
adjacent property owners both have seawalls, which are intensifying the
damage to the applicants' property. The Department
of Environmental Protection (DEP) has determined that all of the criteria
of Rule 18-21.019, F.A.C., have been met. This includes proof of ownership;
documentation supporting the location of the mean high water line prior
to and after artificial erosion; documentation demonstrating the adjacent
shoreline is bulkheaded or armored; a legal description showing the quantity
of land does not exceed one-half acre; the tax assessed value from the
county property appraiser's records; the sale is in the public interest
since the deed will contain language reserving lateral public access;
a copy of the DEP regulatory permit; and the lands are not located within
an aquatic preserve. The applicants
are being required to provide mitigation as a condition of the regulatory
permit for the project. The project involves (1) the filling of 0.2303
acre along a 342-foot length of shoreline along the New River that involves
the placement of 1,192 cubic yards of fill; (2) the construction of two
marginal boat docks; and (3) the placement of riprap along the entire
length of the applicants' property line. The mitigation required to offset
the adverse impacts from the project involves the creation of at least
0.23 acre of mangrove wetland substrate along 250 feet of shoreline at
John U. Lloyd State Park. Under Rule 18-21.019, F.A.C., the Board of Trustees may reduce the fee for purchasing lands to be reclaimed if it is the public interest. Since the mitigation work at John U. Lloyd State Park is a requirement of the regulatory permit needed to offset the adverse impacts from the project, the DEP does not feel it justifies waiver of the fee. A consideration
of the status of the local government comprehensive plan was not made
for this item. The DEP has determined that the proposed action is not
subject to the local government planning process. (See Attachment
6, Pages 1-14) RECOMMEND
(1) APPROVAL OF THE REQUEST TO ISSUE THE QUITCLAIM
DEED; AND (2) DENIAL OF THE REQUEST TO WAIVE FEE
Item
7 Edward J. Ruff Development, Inc. Lease Renewal/Modification/
Assignment to Barefoot Boat Club Condominium Association, Inc. REQUEST:
Consideration of a request to (1) renew an expired five-year sovereignty
submerged lands lease for a docking facility used in conjunction with
an upland nonresidential condominium and dry storage facility, containing
24,143 square feet, more or less; (2) modify it to a 30-year extended
term lease; and (3) assign it to the Barefoot Boat Club Condominium Association,
Inc. COUNTY: Collier Lease No.
111939239 APPLICANT:
Edward J. Ruff Development, Inc. LOCATION:
Section 06, Township 48 South, Range 25 East, in Little Hickory Bay,
within the local jurisdiction of Collier County. Aquatic Preserve: No CONSIDERATION:
$3,546.61, representing (1) $2,728.16 as the annual lease fee computed
at the base rate of $0.1130 per square foot; and (2) $818.45 as the extended
term lease payment calculated at 30 percent of the lease fee, if applicable.
Sales tax will be assessed pursuant to section 212.031, F.S., if applicable.
STAFF
REMARKS: On October 26, 1993, the Board of Trustees approved the issuance
of a five-year submerged lands lease to Tempustech, Inc. for the construction
of a six-slip docking facility to be used in conjunction with a proposed
upland commercial marina and private club. The upland facilities would
include a clubhouse, snack bar, swimming pool, parking and a 90-unit dry
storage facility. The six slips would provide temporary mooring for boats
launched and retrieved at the site. Subsequently,
on February 14, 1996, the aforesaid lease was modified pursuant to delegation
of authority to change the lessee to Edward J. Ruff Development, Inc.,
who had purchased the uplands from Tempustech, Inc. on October 12, 1995,
and to add 18 additional wet slips, thereby creating a 24-slip facility.
The lease expired on October 26, 1998. The applicant made this application
prior to the expiration of the lease. On June 11, 1996, the lessee, Edward J. Ruff Development, Inc. ("developer"), filed a declaration of condominium for Barefoot Boat Club, a nonresidential condominium. In the declaration of condominium, the developer submitted the uplands owned by the applicant in fee simple, together with its interest in the sovereignty submerged lands lease, as modified, to condominium ownership under chapter 718, F.S., the Florida Condominium Act (Act). The developer subsequently sold the 18 wet slip condominium "units," for approximately $30,000 each, to individual owners. The six original wet slips are included as "common elements" to be used
by the dry slip owners. Under the declaration, the Barefoot Boat Club
Condominium Association, Inc. (Association), has the right to "build,
maintain and use docks, piers, and other facilities in and over the waters
of Little Hickory Bay". Under the Act, leasehold property submitted
as nonresidential condominium property must have an unexpired term of
30 years, under section 718.401, F.S. Since the modified submerged lands
lease had only a two and one-half year term remaining on its five-year
term, the creation of the condominium on the leased portion of the lands
appears to be contrary to law. The developer and the Association (still
controlled by the developer) request that the Board of Trustees issue
a 30-year extended-term lease to correct this problem. Several
unit owners filed suit against the developer in the circuit court for
Collier County. The plaintiffs (several wet slip and dry slip owners)
alleged that the condominium was not validly formed since the submerged
lands lease was not for a term of 30 years. The applicant's request for
a 30-year lease appears to be motivated by the litigation. Granting the
request would have the effect of ratifying the inclusion of sovereignty
submerged land in the declaration of condominium. On July
28, 1998, the Board of Trustees considered the issue of whether to allow
30-year leases when it considered the rule amendments for extended term
leases. The applicant's president and his attorney attended and unsuccessfully
argued their position regarding 30-year leases. At that time, the Board
of Trustees said that the applicant could come back with its specific
request for a term longer than 25 years and that it would be considered. By submitting
the submerged lands lease to condominium ownership, a use which was not
specified in paragraph one of the lease, the developer violated paragraph
seven of the lease (change of use not permitted unless authorized by the
Board of Trustees); paragraph eight by making a claim of title to the
submerged land; paragraph nine when he sold the wet slip units into private
ownership (transfer or assignment of lease without written consent of
lessor prohibited); and paragraph ten by conveying the upland into condominium
ownership and terminating his fee simple ownership. Enforcement
has not been taken, since such violations must be corrected before renewal
of the lease by the Board of Trustees under section 18-21.008(1)(b)3.,
F.A.C. Further, a site inspection done on September 11, 1998, showed that
certain vessels were using more sovereignty submerged lands than had been
leased, also a lease violation. A lease modification of the leased area
to resolve that problem is pending in the Department of Environmental
Protection's (DEP) South District. Staff recommends that the request for a 30-year lease be denied because it is contrary to section 18-21.008(2)(a), F.A.C., which allows extended term leases of "up to 25 years." Renewal of the lease should be denied because it would violate section 18-21.008(1)(b)3., F.A.C., which requires the applicant be in compliance with all submerged lands rules and statutes. Assignment should be denied because it would violate 18-21.008(1)(b)4., F.A.C., involving the same requirements as renewal. There are no exceptions in these rules, and the Board of Trustees declined to extend the lease terms in the rule to 30 years to accommodate such uses as "dockominiums". Staff further recommends that the Board of Trustees deny the request because it is contrary to the public interest and public policy. Staff believes that this would open the door to other private nonresidential dockominiums, which are not a traditional use for which the Board of Trustees has allowed docking facilities to be constructed on sovereignty lands. Such privately-owned facilities do not provide public access to public waters; would further limit the already limited public usage of sovereignty submerged lands near the shore; and would increase impacts on natural resources. Further, conveying sovereignty submerged lands into private condominium ownership is contrary to the public interest and arguably in violation of Article X, section 11, Florida Constitution. Additionally,
section 718.401, F.S., provides that if the rent under the lease is payable
by the condominium association or the unit owners, the lease must include
certain specific provisions as set forth in the statutes. This would mean
that the standard submerged lands lease would have to be revised to conform
to the statutory requirements, some of which are likely to be unacceptable
to the Board of Trustees. For example, subsection (d) contains detailed
provisions governing actions by the lessor (Board of Trustees) for non-payment
of rent or other breaches of the lease, including authorization for payment
of rent by the lessee into the registry of the court, and requiring that
the lessor must post a bond or other security as a condition for the release
of funds from the court registry. If the lessor attempts to file liens
for non-payment of rent or foreclose such liens in violation of this subsection,
then the lessor may be liable for damages plus attorney's fees and costs
to the unit owners or the condominium association. As a matter of public
policy, this is not recommended as it favors the private owner and increases
expenses to and restrains use by the public of its own lands. Staff accordingly recommends denial of the request for a 30-year extended term lease, and denial of the assignment. Other than the condominium requirements cited above, the applicant has not shown any "unique operational constraints" under 18-21.008(2)(a)3, F.A.C., which is the test to justify an extended term lease of up to 25 years, not 30 years. In view of the apparent lease violations, staff recommends denial of any lease renewal at this time and, instead, issuance of a temporary use agreement for one year, with the following special conditions: 1) the applicant shall come into full compliance with the lease; 2) the applicant shall eliminate sovereignty submerged lands from condominium ownership; 3) the applicant shall not be fined if it proceeds to correct all lease violations and condominium issues within one year; and 4) if the applicant performs all conditions of the TUA, and is in compliance with all rules and statutes governing submerged lands, a standard five-year lease shall be issued by staff, in which the assignment shall be made. The DEP South District shall stop processing the modification of the lease area until these issues are resolved, and shall not resume such processing until a five-year lease is fully executed and delivered.
A consideration
of the status of the local government comprehensive plan was not made
for this item. The DEP has determined that the request for an extended
lease term for this facility is not subject to the local government planning
process. (See Attachment
7, Pages 1-10) RECOMMEND 1) DENIAL OF THE 30-YEAR EXTENDED TERM LEASE; 2) DENIAL OF THE LEASE ASSIGNMENT; 3)
ISSUANCE OF A TEMPORARY USE AGREEMENT FOR ONE YEAR WITH SPECIAL CONDITIONS;
AND 4) ISSUANCE OF A FIVE-YEAR LEASE WHEN ALL CONDITIONS ARE MET.
Item
8 Chapter 18-20, F.A.C. Settlement Agreement/Rule Repeal WITHDRAWN
FROM THE SEPTEMBER 27, 1998 AGENDA
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