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AGENDA
BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND
MAY 25, 1999
Item 1 Minutes
Submittal of the Minutes of the April 13, 1999 Cabinet Meeting.
RECOMMEND ACCEPTANCE
Item 2 Pier B Development Corp. Lease Modification
REQUEST: Consideration of an application for a modification of
a 25-year sovereignty submerged lands lease to increase the preempted
area from 109,756 square feet to 164,008 square feet for a proposed expansion
of an existing commercial marina facility.
COUNTY: Monroe
Lease No. 440020075
ERP No. 44-0142062-002
APPLICANT: Pier B Development Corp., a Florida corporation
LOCATION: Section 22 , Township 68 South, Range 25 East, in Key
West Harbor, Class III waters, within the local jurisdiction of the City
of Key West
Aquatic Preserve: No
Manatee Area idle/slow speed/caution zone: No
Outstanding Florida Waters: Yes
CONSIDERATION: $20,527.20 as the initial lease fee computed at
the base rate of $0.1156 per square foot for the 164,008 square-foot area,
and including the initial 25 percent surcharge payment for the 54,252
square-foot expansion area. Sales tax will be assessed pursuant to section
212.031, F.S., if applicable. The lease fee may be adjusted based on six
percent of the annual rental value, pursuant to section 18-21.011, F.A.C.
STAFF REMARKS: The lessee is proposing to expand an existing
commercial marina facility by increasing the preempted area from 109,756
square feet to 164,008 square feet. The lease contains two lease areas.
Lease area 2A currently provides for berthing of cruise ships up to 875
feet long. Lease area 2B provides for mooring of recreational vessels,
commercial charter boat vessels and a gambling ship ("Vegas West").
The proposed expansion will be to lease area 2A to provide for berthing
of cruise ships up to 1,000 feet long along the western face of Pier B.
Lease area 2B will not be modified.
Pier B was built prior to 1970 for use by the United States Navy. The
pier and associated uplands were purchased from the federal government
by a private developer (Pritam Singh, a/k/a Truman Annex Company) on March
11, 1987. The Board of Trustees initially approved a 25-year sovereignty
submerged lands lease on January 22, 1987, for 17,507 square feet. On
February 6, 1990, the Board of Trustees approved a 25-year sovereignty
submerged lands lease modification (no. 440002595) for an existing commercial
docking facility, including the submerged lands adjacent to Pier A, Pier
B, and Pier Bravo, for a total area of 114,671 square feet.
On January 22, 1991, the Board of Trustees approved a 25-year sovereignty
submerged lands lease modification for the same lease to expand the existing
commercial marina to 328,512 square feet. That modification did not include
changes to Pier B. The lease was also assigned to Truman Annex Retail
Development Company. On March 30, 1994, Pier B Development Corp. purchased
Pier B.
On March 31, 1994, the Board of Trustees approved a 25-year sovereignty
submerged land lease modification, under a delegation of authority (DOA)
for lease no. 440002595, splitting the lease area into four separate
leases and reassigning the leases from Truman Annex Retail Development
Corp. to: North Basin Development Corp. (lease no. 440002595), Pier Bravo
Development Corp. (lease no. 440020085), South Basin Development Corp.
(lease no. 440020095) and Pier B Development Corp. (lease no. 440020075).
The lessee applied to the Department of Environmental Protection (DEP)
on June 18, 1998, for a permit/water quality certification
and authorization to use sovereignty submerged lands to construct a pier
extension of approximately 12,416 square feet, install four new breasting
dolphins and one new mono-pile mooring dolphin. The project included a
request to expand by 54,252 square feet the sovereignty submerged lands
lease (no. 440020075) at Pier B. The original purpose of the project was
to accommodate larger cruise ships (up to 1,000 feet long), eliminate
the berthing loads on the existing structure and improve maneuverability
of the cruise ships during docking and departures. During the permit process,
turbidity created by the cruise ships became a concern for DEP. As a result
of negotiations between DEP and the lessee, the lessee provided
DEP with reasonable assurance that there will be a net improvement in
water quality as a result of pier expansion by: (1) the lessee providing
DEP documentation showing a reduction in turbidity generation in the order
of 75 to 80 percent once the pier expansion is complete; (2) project revisions
designed to deflect and breakup the prop wash energy from ships' propulsion
systems; and (3) the lessee's agreement to follow best management practices
during the maneuvering of ships docking and departing from the pier.
As mitigation and public interest for the permit
application, the lessee agreed to: (1) monitor turbidity levels within
the Key West Channel for each ship that docks and departs from the pier;
and (2) contribute a monetary donation of $16,088 to the Florida Keys
Environmental Trust Fund, for the purpose of restoring approximately 30,940
square feet (0.71 acre) of wetlands within the Key West Salt Ponds Habitat
Restoration Area.
As a result of the above project modifications, the lessee agreed to
pursue the project in two phases. Phase One would be the request to construct
the pier expansion within the existing lease boundary, but not to allow
for mooring of more or larger cruise ships. Phase Two would be a subsequent
request to modify the sovereignty submerged lands lease to increase the
lease area to accommodate the larger cruise ships. On April 8, 1999, the
lessee withdrew the request to modify the sovereignty submerged lands
lease until Phase Two. As a result, DEP issued an Environmental Resource
Permit (no. 44-0142062-001) for the revised project on April 9, 1999.
The permit granted regulatory and proprietary authorization
for construction of the pier extension. The proprietary authorization,
a consent of use, was issued pursuant to a DOA because the pier extension
did not increase the number of slips, substantially
change the use of the facility from that currently authorized in the existing
lease, or authorize berthing of vessels outside of the existing sovereignty
submerged lands lease area.
On April 13, 1999, the lessee applied to DEP for Phase Two to modify
the sovereignty submerged lands lease by increasing the preempted area
from 109,756 square feet to 164,008 square feet, to provide for berthing
of the larger cruise ships.
An April 14, 1999 inspection showed that the lessee is in compliance
with the existing lease. All fees are current through February 6, 2000.
The existing lease authorizes fueling facilities and sewage pumpout
facilities, but prohibits liveaboards. However, the waterbody is classified
as an Outstanding Florida Water (OFW) and is therefore subject to section
62-312.430(2), F.A.C. That rule prohibits fuel storage or pumping facilities
located on overwater structures within OFWs. There are currently
no such over-water facilities within lease area 2A. For consistency with
the DEP regulatory rule, staff recommends that the lease be modified to
prohibit fueling facilities within lease area 2A. Should this staff recommendation
be approved, the following special lease condition will be included in
the lease:
Fueling facilities, including fuel storage or fuel pumping devices,
shall be prohibited within lease area 2A.
Recommendations from DEP's Division of Marine Resources regarding manatee
protection include requiring the lessee to: (1) comply with the standard
manatee protection construction conditions for all in-water construction;
and (2) install and maintain permanent manatee informational displays
and awareness signs. These items will be addressed in the modified lease
as special lease conditions.
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 the City of Key West.
(See Attachment 2, Pages 1-5)
RECOMMEND APPROVAL SUBJECT TO THE SPECIAL LEASE CONDITIONS AND
PAYMENT OF $20,527.20
Item 3 SunTrust Bank, Southwest Florida (d/b/a Orange
Harbor Mobile Home Park) Lease Modification/Survey Waiver
WITHDRAWN FROM THE JANUARY 26, 1999 AGENDA
REQUEST: Consideration of an application for (1) a modification
of an existing fiveyear sovereignty submerged lands lease to increase
the preempted area from 26,116 square feet to 209,212 square feet, more
or less, for an existing commercial docking facility; and (2) a waiver
of the survey requirement.
COUNTY: Lee
Lease No. 360009925
APPLICANT: SunTrust Bank, Southwest Florida, a Florida corporation,
as Trustee
(d/b/a Orange Harbor Mobile Home Park)
LOCATION: Sections 34 and 35, Township 43 South, Range 25 East,
in the Caloosahatchee River and the Orange River, Class III waters
Aquatic Preserve: No
Manatee Area idle/slow speed/caution zone: Yes
Outstanding Florida Waters: No
CONSIDERATION: $29,476.38 as the initial lease fee computed at
the base rate of $0.1156 per square foot, 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.
If the staff recommendation regarding the survey and legal description
is approved, fees will be verified upon receipt of an acceptable survey.
STAFF REMARKS: The lessee is proposing to modify an existing
42slip commercial docking facility by: (1) increasing the preempted
area from 26,116 square feet to 209,212 square feet; and (2) increasing
the number of wet slips from 42 to 75.
On July 18, 1978, the Board of Trustees approved a sovereignty submerged
lands lease containing 2,841 square feet, more or less, to construct and
operate a commercial docking facility for the upland mobile home park.
The lessee rents mobile home lots to residents; therefore, the mobile
home park is a revenue generating/income related activity pursuant to
section 18-21.003(44), F.A.C. The rule also states that any activity (such
as a docking facility) on sovereignty lands which serves as an accessory
to an upland revenue generating activity is also considered to be a revenue
generating/income related activity. Therefore, use of the submerged land
requires a lease pursuant to section 18-21.005(1)(b)2, F.A.C. Although
the lessee does not charge the mobile home residents a fee to use the
docks adjacent to their mobile homes, the lot rent is higher for waterfront
lots than non-waterfront lots.
Under a delegation of authority (DOA), the lease was renewed and modified
by the former Department of Natural Resources (DNR) on August 29, 1988,
to include in the lease unregistered grandfathered structures consisting
of five finger piers and a marginal dock and boat ramp, increasing the
lease area to 6,960 square feet. Although these structures are located
near those authorized in the original lease, they were not included in
the original survey or lease. There is no record of any site inspection
being performed at this facility between 1978 and 1988.
From 1978 until 1994, individual Orange Harbor Mobile Home Park (Park)
residents applied for and obtained regulatory exemptions from the Department
of Environmental Regulation and proprietary consent of use letters from
DNR and the Department of Environmental Protection (DEP) for "single-family"
type docks. Although a lease would have been required pursuant to section
18-21.005(1)(b)2, F.A.C., another rule section, 18-21.005(1)(a), F.A.C.,
states that docks that are exempt from regulatory permitting are exempted
from any requirement to make application for consent of use, and such
consent is granted by the Board of Trustees. In the applications from
Park residents, it was indicated that they were the riparian upland owners,
and there were no clear indications of the rental nature of the mobile
home park. Therefore, the applications were reviewed as if the structures
were private, single-family docks associated with single-family lots,
when in fact the uplands were owned by SunTrust Bank and constituted a
revenue generating/income related activity pursuant to the rule. SunTrust
Bank has indicated to DEP staff that responsibility for construction and
maintenance of the individual docks was left to each waterfront resident.
In 1994, a Park resident submitted an application for a boat lift at
the dock located adjacent to his mobile home. The application revealed
that he was not the upland owner, that in fact SunTrust Bank owned the
lots. DEP staff's subsequent research of property records revealed that
the mobile home park was owned entirely by SunTrust Bank, without any
individually-owned lots. DEP staff performed a complete shoreline inventory
and contacted SunTrust Bank, informing them that the lease must be modified
to include all of the structures on sovereignty submerged lands adjacent
to the park. SunTrust Bank willingly complied with the requirement to
modify the lease accordingly.
Under a DOA, the lease was modified by DEP on June 5, 1995, to: (1)
eliminate from the lease a marginal dock and four finger piers (six wet
slips preempting 3,276 square feet) that were deteriorating and no longer
needed by the Park because of lack of user demand; and (2) include in
the lease all of the other structures built by the individual lot renters.
These structures consisted of 31 fishing piers and 28 docks. This modification
increased the lease area to 23,171 square feet. Lease fees in arrears
for these structures were paid by the lessee. Interest on the lease fees
in arrears was not assessed because of the past authorizations issued.
The lease was again modified by DEP under a DOA on January 21, 1998,
to convert five of the fishing piers to docks, increasing the lease area
to 26,116 square feet. The modified lease now accurately reflects all
existing structures.
The overall facility currently consists of a four-slip docking facility
and boat ramp at one of the mobile home park's common areas, two fishing
piers adjacent to two other common areas, and numerous individual docks
and fishing piers, each adjacent to individual mobile home lots. All of
these existing structures are within the existing lease. The lessee's
proposed lease modification will: (1) convert 21 existing fishing piers
to docks adjacent to individual mobile home lots by allowing mooring at
the structures; (2) authorize some of the existing docks to be reconfigured
or expanded; (3) authorize construction of new docks; and (4) include
the area of sovereignty submerged lands between each structure consistent
with sections 18-21.003(38) and 18-21.004(1)(c), F.A.C. The modified lease
will provide a total of 75 wet slips for exclusive use of mobile home
park residents. The boat ramp and remaining fishing piers will also remain
for the exclusive use of mobile home park residents.
As a commercial operation, the lessee passes on the annual lease fee
to the waterfront lot renters. Most of the mobile home park residents
are retirees, many on fixed incomes. There is a continual turnover of
park residents, and new waterfront lot renters often desire to change
the configuration of the dock or fishing pier adjacent to their respective
lots. They also want to minimize the annual lease fee by designing each
dock's lease area to be as small as possible. This has resulted in continuous
lease modifications to change the preempted area to accommodate new or
relocated boat slips or larger vessels at various individual structures.
Therefore, future requests for additional lease modifications were anticipated
to occur frequently throughout the term of the modified lease.
Minimizing the lease area raises three concerns. First, the previous
frequent lease modifications required significant staff time; future lease
modifications would also require Board of Trustees' reviews. Second, it
has not adequately included all of the preempted area in the lease as
required by sections 18-21.003(38) and 18-21.004(1)(c), F.A.C. Because
many of the docks are located close together, the area between the docks
that is currently excluded from the lease is also realistically preempted
from traditional public uses. However, the Board of Trustees and DEP typically
require such areas to be included in sovereignty submerged lands leases.
Therefore, continuing to allow these areas to be excluded from the lease
raises a third concern: inconsistency with other Board of Trustees and
DEP authorizations. To address these concerns, the applicant has agreed
to modify the lease to include the areas between those docks whose proximity
to one another effectively preempts public use. Staff and the lessee estimate
that this will add approximately 168,290 square feet to the lease area,
resulting in an additional annual lease fee of $19,454.32. Because of
this lease fee increase, the Park residents do not agree with including
the additional preempted area in the lease.
Staff has considered whether a net environmental benefit would result
from replacing the existing docks, adjacent to individual mobile homes,
with one or more multi-slip docking facilities. However, this alternative
would concentrate pollutants, raise potential navigation concerns, and
result in an extensive and costly permitting process for SunTrust Bank
that would ultimately be passed onto the Park's waterfront residents.
Therefore, staff does not recommend this alternative.
Section 18-21.008(1)(a)4, F.A.C., requires a survey and legal description
to be submitted with all lease applications. Pursuant to Board of Trustees'
action on May 14, 1991, the Board of Trustees authorized a waiver of the
survey requirement in the following situations: (1) when unregistered
grandfathered structures are brought under lease (regardless of total
square footage of sovereignty submerged lands preempted); and (2) when
existing or proposed facilities are brought under lease that preempt less
than 3,000 square feet.
A survey was required for the original lease and the 1988 lease modification
because those actions occurred prior to creation of the survey waiver.
When the remaining unauthorized unregistered grandfathered structures
were brought under lease in 1995, a survey was not required because staff
interpreted the survey waiver to apply to unauthorized unregistered grandfathered
structures. Unauthorized unregistered grandfathered structures are those
where a lease is the appropriate authorization for the use of sovereignty
submerged lands, and the riparian upland owner did not apply for the lease
by April 1, 1991.
The currently proposed lease modification includes construction of new
structures (docks and boat lifts). These structures do not qualify for
a waiver of the survey requirement because: (1) they are new structures
(not unregistered grandfathered); and (2) while they are less than 3,000
square feet, the overall leased facility exceeds 3,000 square feet. However,
the lessee has requested a waiver of the survey requirement because of
the anticipated expense of the survey. The expense associated with surveys
was considered by the Board of Trustees when the survey waiver was approved
in 1991. To avoid the expense and delay associated with preparation of
a survey for the currently proposed lease modification, DEP required the
applicant to submit a sketch and description consistent with the survey
waiver requirements. A special approval condition has been included requiring
submission of an acceptable survey and legal description.
An October 19, 1998, inspection showed that the applicant is in compliance
with the existing lease. All fees are current through July 1999.
The DEP issued a letter to the lessee, dated October 20, 1998, stating
that the proposed additional docks and boat lifts were exempt from regulatory
permitting requirements.
The modified lease request was not required to be noticed because of
an exemption for lease modifications pursuant to section 253.115(5)(i),
F.S. However, DEP received 23 letters from Park residents expressing the
following concerns: (1) the lease modification process entailed significant
delays preventing them from building/modifying their docks; (2) because
they own the individual structures adjacent to their mobile homes, the
structures are not commercial and therefore should not be subject to the
lease requirement; and (3) because of item (2), they should not have to
pay lease fees. DEP sent each of these 23 residents a letter responding
to these concerns. DEP also provided a follow-up letter including a preliminary
draft agenda item for their review. That agenda item was also provided
to Representative Bruce Kyle's office and the Park management to be posted
in the Park for review by all Park residents.
On March 18, 1999, DEP held a three-hour public meeting with the lessee,
an aide to Representative Kyle, and over 200 park residents. The residents
asked numerous questions about authorizations to use sovereignty submerged
land. Two options for the lessee were identified at the meeting: (1) pursue
the lease modification discussed in this agenda item; or (2) await the
findings of a DEP sufficient title interest working group to determine
whether the individual structures could be authorized by a consent of
use instead of a lease. Option (1) would allow the park residents to modify
their structures in the near future, after the modified lease is issued.
Option (2) would prohibit modification of the leased structures until
the sufficient title interest working group findings are completed, which
could entail significant time delays because of potential rulemaking.
By the end of the meeting, it appeared that the lessee and the residents
looked favorably on option (1), and many of the residents stated that
they had a much better understanding of the costs and benefits of modifying
the submerged land lease to include additional preempted area. Subsequently,
DEP requested and received the lessee's written intent to pursue option
(1).
Recommendations from the Division of Marine Resources regarding manatee
protection include requiring the lessee to: (1) comply with the standard
manatee protection construction conditions for all in-water construction;
(2) install and maintain manatee informational displays; and (3) restrict
use of the boat ramp to mobile home park residents. Items (1) and (3)
will be addressed in the lease as special lease conditions. Item (2) is
addressed by a special lease condition in the existing lease requiring
the lessee to maintain the existing manatee informational displays throughout
the term of the modified lease and any subsequent renewals.
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. In accordance
with the compliance agreement between the 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 Lee County.
(See Attachment 3, Pages 1-8)
RECOMMEND (1) APPROVAL SUBJECT TO THE SPECIAL APPROVAL CONDITION,
THE SPECIAL LEASE CONDITIONS, AND PAYMENT OF $29,476.38; AND (2) DENIAL
OF THE SURVEY WAIVER
Item 4 City of Key West/Houseboat Row Interim Status
Report
REQUEST: Consideration of an interim report on the status of
the City of Key West's plan to remove houseboats from Houseboat Row.
APPLICANT: City of Key West
COUNTY: Monroe
STAFF REMARKS: On July 28, 1998, the Board of Trustees considered
a petition by the City of Key West (City) to stay ejectment of the structures
on Houseboat Row (HBR). The Board of Trustees had prevailed in the case
of the City of Key West and Board of Trustees of the Internal Improvement
Trust Fund v. Skifano, et. al. (Case No. 94-409-CA-12), and had been
granted a Writ of Possession entitling the Board of Trustees to eject
26 houseboats and other floating structures that were occupying an area
of submerged land in Key West known as HBR. The City petitioned the Board
of Trustees to stay the ejectment action and instead to lease the submerged
land to the City so that HBR could remain. The Department of Environmental
Protection (DEP) opposed the City's petition and recommended that the
residents of HBR be given six months to relocate and that a task force
be formed to address the larger issues associated with unmanaged anchoring
in Key West. The Board of Trustees ultimately agreed to defer action for
three months in order to give the City an opportunity to prepare a proposal
and a reasonable time schedule for dealing with HBR and with the other
liveaboards located in and around Key West. During October 1998, Hurricane
Georges hit Key West and only 16 of the 26 houseboats survived the storm.
The matter came back to the Board of Trustees on December 8, 1998, and
the Board of Trustees denied the request of the City to convey the sovereign
lands underlying HBR to the City so that HBR could remain on the seawall
along Roosevelt Boulevard. The Board of Trustees also deferred execution
of the Final Judgment of Ejectment to allow the City 120 days (April 7,
1999) to submit "a more detailed mooring and anchorage plan and an
acceptable Houseboat Row relocation plan."
The City Engineering Services Division developed its "Garrison
Bight Expansion Feasibility Study" dated February 28, 1999, for the
relocation of HBR to Garrison Bight. The City Commission considered the
study, which presented four options, and directed its staff to further
develop option 2, which called for an expenditure of approximately $450,000
to create 28 additional permanent live-aboard slips in the City-owned
Garrison Bight Marina, together with associated utility services.
A draft of City staff's "Garrison Bight Expansion Conceptual Plan,"
dated May 6, 1999, is attached, and will be presented to the Key West
City Commission for consideration on June 1, 1999. Phase one calls for
early relocation of HBR to either Dolphin or Sailfish Pier, in the outer
basin of Garrison Bight (many of the HBR houseboats cannot access the
inner basin because of bridge height restrictions), and phase two calls
for expansion of Wahoo Pier in the inner basin in order to replace those
slips taken by HBR. Authorization for the Garrison Bight expansion from
the Board of Trustees is not required because the submerged bottom of
Garrison Bight is City-owned. The City plans to complete the physical
relocation of HBR no later than 90 days from City Commission approval
on June 1, 1999.
The City has also retained a consultant to pursue the necessary inner
basin regulatory permits from the DEP, and has begun dock design for permitting
purposes. Further, the City has also been pursuing activation of the seaplane
basin mooring field and related issues such as "no discharge"
zones. It appears the City is moving steadily toward relocation of HBR,
and staff recommends no action at this time by the Board of Trustees.
(See Attachment 4, Pages 1-43)
RECOMMEND (1) ACCEPTANCE OF THIS INTERIM REPORT; AND (2) DIRECTION
TO STAFF TO SUBMIT ITS NEXT STATUS REPORT IN 90 DAYS.
Item 5 Calzadilla/Adams Option Agreements/Florida Keys
Ecosystem CARL Project
REQUEST: Consideration of two option agreements to acquire
10.97 acres within the Florida Keys Ecosystem CARL project from Anthony
A. Calzadilla and Charles M. Adams.
COUNTY: Monroe
LOCATION: Section 20, Township 66 South, Range 29 East
CONSIDERATION: $27,500
APPRAISED BY
REVIEW Hrabko APPROVED PURCHASE OPTION
NO. PARCEL ACRES (05/18/98)
VALUE PRICE DATE
909004 Calzadilla/ 8.74 $21,900 $21,900 $21,900 150 days
3097, 3098, after BOT
3105 approval
909005 Adams/3103 2.23 $ 5,600 $ 5,600 $
5,600
10.97 $27,500 $27,500
STAFF REMARKS: The Florida Keys Ecosystem CARL project is ranked
number 4 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' (DSL) Land Acquisition Workplan. The project contains
7,033 acres, of which 1,217.69 acres have been acquired or are under agreement
to be acquired. After the Board of Trustees approves these agreements,
5,804.34 acres or 83 percent of the project will remain to be acquired.
On March 12, 1996, the Board of Trustees exercised its authority under
section 259.041(1), F.S., to waive the normal appraisal procedures and
to substitute other reasonably prudent procedures. This enabled the DSL
to utilize approved appraised values that were based on land use regulations
in effect as of January 1, 1996, in Monroe County.
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.
Title insurance policies, surveys, environmental site evaluations and,
if necessary, environmental site assessments will be provided by the purchaser
prior to closing.
The unique pine rocklands and hardwood hammocks of the Florida Keys,
forests of West Indian plants that shelter several extremely rare animals,
are being lost to the rapid development of these islands. The Florida
Keys Ecosystem CARL project will protect all the significant unprotected
hardwood hammocks left in the Keys and many rare plants and animals, including
the Lower Keys marsh rabbit and the Key deer. It will also help protect
the Outstanding Florida Waters of the Keys, the recreational and commercial
fisheries, and the reefs around the islands, and will give residents and
visitors more areas in which to enjoy the natural beauty of the Keys.
These properties will be managed by the Florida Game and Fresh Water
Fish Commission for the conservation and preservation of the natural resources
of the properties.
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 5, Pages 1-21)
RECOMMEND APPROVAL
Item 6 Budzilas/Morejon/Waldo Purchase Agreements/Save
Our Everglades (Golden Gate Estates) CARL Project
REQUEST: Consideration of three purchase agreements to
acquire 60 acres within the Save Our Everglades (Golden Gate Estates South)
CARL project from Maria Budzilas; Raimundo Morejon and Lucia Morejon;
and Christina M. Waldo and Michael C. Waldo.
COUNTY: Collier
LOCATION: Sections 33 and 34, Township 50 South, Range 28
East
CONSIDERATION: $168,000
APPRAISED BY
REVIEW PARCEL/ Hettema APPROVED PURCHASE CLOSING
NO. OWNER ACRES (01/12/99)
VALUE PRICE DATE
909001 Budzilas 20 $ 56,000 $ 56,000 $ 56,000 150 days
after
909002 Morejon 20 $ 56,000 $ 56,000 $ 56,000 BOT approval
909003 Waldo 20 $ 56,000 $ 56,000 $ 56,000
60 $168,000 $168,000
STAFF REMARKS: The Save Our Everglades CARL project is ranked
number 4 on the CARL Mega-Multiparcel 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
222,691 acres, of which 199,107.25 acres have been acquired or are under
agreement to be acquired. After the Board of Trustees approves these agreements,
23,523.75 acres or 11 percent of the project will remain
to be acquired.
These properties are being acquired utilizing Federal acquisition procedures
as a condition of the award of a $25 million Farm Bill grant from the
U. S. Department of Interior to the Department of Environmental Protection
for the purchase of lands within the Save Our Everglades (Golden Gate
Estates South) CARL project.
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.
Title insurance policies, surveys, environmental site evaluations and,
if necessary, environmental site assessments will be provided by the purchaser
prior to closing.
West of the huge sawgrass marsh of the central Everglades spreads a
landscape of cypress swamps, marshes, slash-pine flatwoods, and tropical
hammocks, through which water slowly flows to the mangrove swamps of the
Ten Thousand Islands. The Save Our Everglades CARL project will conserve
three large pieces of this landscape, connecting and extending existing
conservation lands, helping to save the last of the Florida panthers and
a host of other rare animals and tropical plants, preserving the flow
of water to the rich estuaries of the Gulf coast, and allowing the public
to enjoy this unique landscape for years to come.
These properties will be managed by the Department of Agriculture and
Consumer Services, Division of Forestry as a part of the Picayune Strand
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 6, Pages 1-12)
RECOMMEND APPROVAL
Board of Trustees
Agenda - May 25, 1999 Page Eleven
Item 7 J. Paul Fitzgerald, et al. Option Agreement/Sandy
Point Buffer Greenways and Trails Project
REQUEST: Consideration of an option agreement to acquire 11 acres
within the Sandy Point Buffer project under the Preservation 2000 Florida
Greenways and Trails program from J. Paul Fitzgerald, et al.
COUNTY: Santa Rosa
APPLICANT: Office of Greenways and Trails
LOCATION: Section 36, Township 01 North, Range 28 West
CONSIDERATION: $4,125
APPRAISED BY
REVIEW Ketcham APPROVED PURCHASE OPTION
NO. PARCEL ACRES (12/17/97)
VALUE PRICE DATE
909006 Fitzgerald 11 $5,100 $4,125* $4,125 150 days
after BOT
* Revised February 22, 1999, due to decreased acreage.
approval
STAFF REMARKS: The Sandy Point Buffer project has been identified
on the Office of Greenways and Trails approved acquisition list. This
agreement was negotiated by the Division of State Lands on behalf of the
Office of Greenways and Trails under the Preservation 2000 Florida Greenways
and Trails program. The project contains 98.2 acres, of which these are
the first to be acquired. After the Board of Trustees approves this agreement,
87.2 acres or 89 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 title insurance policy, survey, environmental site evaluation and,
if necessary, an environmental site assessment will be provided by the
purchaser prior to closing.
This parcel drains a large upland area to the west of the Yellow River
Marsh Aquatic Preserve. The area currently consists of residential land
and a large cattle farm. Cattle farms can cause problems for water quality
unless properly filtered through sufficient uplands or wetlands. The drainage
system that eventually exits into the aquatic preserve runs through the
middle of the cattle farm. All of the residential homes that are in this
sub-drainage basin are on septic tanks, and due to the recent installation
of the Garcon Point bridge, new development is increasing rapidly. The
portion of the aquatic preserve that abuts the Fitzgerald property is
currently pristine, with extensive grassbeds consisting of Vallisneria,
American and Ruppia maritima. Turbidity and excessive algae growth can
smother grass beds and prevent efficient photosynthesis. The Fitzgerald
property will provide a valuable filtering system via wetlands to assure
that this ecosystem remains intact. Also, the wetland itself is an important
nursery area for aquatic life.
This property will be managed by the Division of Marine Resources as
a buffer to the Yellow River Marsh Aquatic Preserve.
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 7, Pages 1-30)
RECOMMEND APPROVAL
Board of Trustees
Agenda - May 25, 1999 Page Twelve
Item 8 North Key Largo Hammocks CARL Project/Delegation/Confidentiality
Requirement Waiver/Survey Waiver
REQUEST: Consideration of a request to (1) delegate authority
to and authorize the Director of the Division of State Lands, Department
of Environmental Protection, or his designee, to extend bona fide offers
and approve any contract for the sale and purchase of land within the
North Key Largo Hammocks CARL project pursuant to section 259.041(1),
F.S., at the approved value; (2) waive the confidentiality requirement
contained in section 259.041(7)(e), F.S.; and (3) waive the surveys.
COUNTY: Monroe
LOCATION: Section 29, Township 60 South, Range 40 East
STAFF REMARKS: The North Key Largo Hammocks CARL project is ranked
number 1 on the CARL Substantially Complete 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. This project
contains 3,605 acres, of which 3,310 acres have been acquired or are under
agreement to be acquired by the Board of Trustees.
The tropical rockland hammock of the North Key Largo CARL project is
a highly endangered, rapidly disappearing natural community that supports
numerous rare and endangered plant and animal species with limited distributions.
The hammocks of North Key Largo are the best and largest examples of tropical
hammock remaining in the United States. This project has over ten miles
of shoreline that directly influence the adjacent waters of John Pennekamp
Coral Reef State Park and the Florida Keys National Marine Sanctuary.
Preservation of the project area in its natural condition will significantly
aid in the maintenance of the high water quality necessary to support
and manage the living reefs of the park, and it will conserve an area
where the public can enjoy the original landscape of the subtropical Florida
Keys.
This project was originally known as New Mahogany Hammock on the first
CARL list in 1980. The project was significantly expanded in 1986. By
1992, all lots owned by willing sellers had been acquired. On September
15, 1992, the Board of Trustees directed the Department of Natural Resources
(DNR) to exercise the power of eminent domain to acquire all remaining
vacant parcels within the project. Since 1992, the DNR, now the Department
of Environmental Protection (DEP), and the Attorney General's Office have
been pursuing eminent domain and have acquired approximately 410 acres.
On December 5, 1997, the Land Acquisition and Management Advisory Council
approved a request by the Division of Recreation and Parks (DRP) to add
vacant lots, consisting of 24 acres, within Gulfstream Shores and Knowlson
Colony Subdivisions to the project. These two subdivisions will form a
critical link connecting existing state-owned lands. The DRP, the managing
agency, is supportive of acquiring these essential parcels by the use
of eminent domain, if necessary.
DSL staff is preparing to initiate negotiations with owners of 109 small,
unimproved lots. While it is the desire of the DEP to acquire all remaining
vacant properties through voluntary negotiations, staff is seeking authority
to make bona fide offers in the event condemnation is required to complete
the acquisition. One of the prerequisites to the exercise of the power
of eminent domain is the requirement that at least two bona fide offers
to purchase land through negotiations must have been made and, notwithstanding
those offers, an impasse between the state and the landowner has been
reached. It has been judicially determined that offers made through the
use of option agreements "subject to approval" by the Board
of Trustees are not considered bona fide offers. Consequently, in order
to satisfy the bona fide offer requirement, staff is recommending that
the Board of Trustees substitute the alternative procedure of Board of
Trustees delegating authority to the Director of the Division of State
Lands (Director) to make bona fide offers to owners of small lots in the
Gulfstream Shores and Knowlson Colony Subdivisions and execute purchase
agreements, including the authority to negotiate and approve counteroffers,
provided that such offers and counteroffers do not exceed the approved
value. Pursuant to section 259.041(1), F.S., the Board of Trustees may
substitute other reasonably prudent procedures provided the public's interest
is reasonably protected. By delegating authority to the Director, and
limiting the offers in the proposed manner, DEP staff believes the public's
interest is reasonably protected.
In an effort to encourage the owners of these parcels to sell voluntarily,
staff would like to be able to share information from the appraisals with
them. To do this requires the Board of Trustees to waive the confidentiality
provision of section 259.041(7)(e), F.S. which can be done as provided
in section 259.041(1), F.S.
Staff requests that the Board of Trustees, pursuant to its authority
under section 259.041(1), F.S., waive any portions of chapter 259, F.S.,
and any applicable rule or policy that may require a survey on these parcels.
It is the opinion of the Bureau of Survey and Mapping that available boundary
information is sufficient to reasonably protect the public's interest.
While these parcels are being recommended for a waiver of survey at
this time, should the title commitments reveal substantive surveying or
surveying related issues which impact the parcels, certified surveys will
be provided by the purchaser prior to closing. In the event full surveys
are waived, a professional land surveyor will inspect the properties 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 these properties.
These properties will be managed by the Division of Recreation and Parks
as part of the Key Largo Hammocks State Botanical site.
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 8, Pages 1-2)
RECOMMEND APPROVAL
Item 9 1999 CARL Interim Report/1999 CARL Interim Priority
List
REQUEST: Consideration of (1) the 1999 Conservation and Recreation
Lands Interim Report of the Land Acquisition and Management Advisory Council;
and (2) the 1999 CARL Interim Priority List.
STAFF REMARKS: The 1999 Conservation and Recreation Lands (CARL) Interim
Report was prepared pursuant to chapter 259, F.S., and rule 18-8, F.A.C.
During the Land Acquisition and Management Advisory Council (LAMAC) meetings
of February 11, March 26, and May 6, 1999, the Council added two projects,
removed two projects and approved project design amendments to seven projects
on the CARL Priority List. The Interim Report includes the 1999 Interim
CARL Priority List of 1999 CARL projects approved by the LAMAC and proposed
for adoption by the Board of Trustees. In addition, the Report includes
the Project Assessments and Projects Designs of the two new projects which
were added to the Priority List: Tequesta Circle (Dade County) and Fisheating
Creek (Glades County). Tequesta Circle is Board of Trustees number 1 on
the Bargain/Shared List, and Fisheating Creek is number 1 on the Less-than-Fee
List. Maps and descriptions of seven other projects whose boundaries have
been modified are included in the Interim Report.
The seven projects with boundary amendments are: Florida Keys Ecosystem
(Monroe County), Charlotte Harbor Flatwoods (Charlotte and Lee Counties),
Middle Chipola River (Calhoun and Jackson Counties), Caloosahatchee Ecoscape
(Glades and Hendry Counties), Apalachicola River (Gadsden, Liberty, Calhoun
and Jackson Counties), Wacissa/Aucilla River (Taylor and Jefferson Counties),
and Rotenberger/Seminole Indian Lands (Broward and Palm Beach Counties).
Two projects included on the 1999 CARL Priority List, approved by the
Board of Trustees on February 9, 1999, are not included on the proposed
1999 CARL Interim Priority List. Mallory Swamp, (Lafayette County) number
6 on the Less-than-Fee List, was removed from the list because the Suwannee
River Water Management District acquired the project. The Everglades Agricultural
Restoration Area, (Palm Beach County) number 5 on the Bargain/Shared List,
was removed from the list because the federal government and South Florida
Water Management District acquired the project through the Everglades
Restoration Act.
The 1999 CARL Interim Priority List is consistent with section 187.201(10),
F.S., the Natural Systems and Recreation Lands section the State Comprehensive
Plan.
The Interim Report will be submitted separately.
(See Attachment 9, Pages 1-3)
RECOMMEND ACCEPTANCE OF THE 1999 CARL INTERIM REPORT AND APPROVAL
OF THE 1999 CARL INTERIM PRIORITY LIST
Item 10 Elizabeth Wade Easement Modification
REQUEST: Consideration of a request to modify a perpetual non-exclusive
right-of-way easement to Elizabeth Wade, containing 1.72 acres, more or
less.
COUNTY: Clay
Easement No. 30168
APPLICANT: Elizabeth Wade
LOCATION: Section 24, Township 04 South, Range 23 East; and Section
19, Township 04 South, Range 24 East
CONSIDERATION: N/A
STAFF REMARKS: On February 9, 1999, the Board of Trustees approved
a perpetual non-exclusive easement to Elizabeth Wade for access across
a portion of Jennings State Forest. Ms. Wade owns a 40-acre inholding
that is surrounded by state forest land. Pursuant to section 704.01(2),
F.S., an owner of land cannot be denied access to his/her property and
may lawfully use and maintain an easement by means of the nearest practical
route. Although there has been no judicial determination that the applicant
is entitled to a statutory way of necessity, staff has reviewed the matter
and it appears that the applicant's property meets the criteria for a
statutory way of necessity.
Prior to Board of Trustees' approval, Ms. Wade was forwarded a copy
of the proposed easement for her review, and a copy was included in the
agenda item at the time of Board of Trustees' approval. Following Board
of Trustees' approval, the easement was forwarded to Ms. Wade for execution.
Ms. Wade's attorney subsequently notified staff that the state's requirements
were not justifiable under the circumstances and requested modification
of the easement agreement to exclude those conditions that will: (1) create
an unreasonable right or the ability to unilaterally terminate the easement
agreement; and (2) lessen her ability to market her property or obtain
a mortgage or title insurance.
The following changes to the easement have been requested:
Paragraph 6. ASSIGNMENT: Delete entire paragraph.
Paragraph 8. BINDING EFFECT AND INUREMENT: Delete, "but
nothing contained in this paragraph shall be construed as a consent by
GRANTOR to any assignment of this easement or any interest therein by
GRANTEE."
Paragraph 9. NON-DISCRIMINATION: Delete, "or upon lands
adjacent to and used as an adjunct of this easement."
Paragraph 10. INDEMNITY: Insert in last sentence, "GRANTEE'S
use of this easement".
Paragraph 12. VENUE PRIVILEGES: Change Leon County to Clay County.
Paragraph 19. CONVICTION OF FELONY: Delete entire paragraph.
Paragraph 20. DEFAULT AND FORFEITURE: Delete entire paragraph.
Paragraph 21. RIGHT OF AUDIT: Delete entire paragraph.
Paragraph 22. PAYMENT OF TAXES AND ASSESSMENTS: Add to last sentence,
"and which are directly occasioned by GRANTEE."
Paragraph 23. AUTOMATIC REVERSION: Delete entire paragraph.
Paragraph 24. RECORDING OF EASEMENT: Change ten days to thirty
days.
Staff has reviewed the requested changes and concurs that they are acceptable
for Ms. Wade's easement.
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 request is not subject to the local government
planning process.
(See Attachment 10, Pages 1-31)
RECOMMEND APPROVAL
Item 11 Walton County Settlement Agreement
REQUEST: Consideration of an agreement to settle those certain
cases styled, Florida Wildlife Federation, Inc., Anne Schultz, Walter
Schultz, Susan Paladini, Bruce Paladini and Ronald Vaughan v. the Board
of Trustees of the Internal Improvement Trust Fund, and Walton County
(Cases No.: 98-4719, First District Court of Appeal; 98-3055, Second Judicial
Circuit Court in and for Leon County); and Florida Wildlife Federation,
Inc., and Florida Audubon Society, Inc., v. Board of Trustees of the Internal
Improvement Trust Fund and Walton County (Case No. 97-4203, Division
of Administrative Hearings).
COUNTY: Walton
Deed No. 30364
APPLICANT: Department of Environmental Protection, Division of
State Lands (DEP)
LOCATION: Section 28, Township 02 South, Range 20 West; and Sections
29, 30, and 31,
Township 02 South, Range 19 West
CONSIDERATION: $27,810, plus an amount equal to the interest
that would have accrued had the purchase price been deposited in the CARL
Trust Fund.
STAFF REMARKS: On August 12, 1997, the Board of Trustees determined
that 420 acres, more or less, of state-owned land in Walton County (County)
no longer needed to be preserved in furtherance of the intent of the Florida
Preservation 2000 Act. The County proposed to develop the 420 acres for
its South Walton New Town Center. The Board of Trustees also established
a Working Group consisting of representatives from the Governor's office,
each Cabinet office, the Walton County Beaches-to-Bay Connection, county
commission, and environmental groups.
In August 1997, Florida Wildlife Federation, Inc., and Florida Audubon
Society, Inc., filed an administrative challenge before the Division of
Administrative Hearings to the Board of Trustees' determination that the
420-acre parcel no longer needed to be preserved in furtherance of the
intent of the Preservation 2000 Act. While the administrative challenge
was pending, the Working Group continued to meet. On November 19, 1997,
the Working Group completed its recommendations, which were put on hold
pending the outcome of the administrative challenge.
Prior to the scheduled hearing date of the administrative challenge,
the Florida Legislature enacted chapter 98-366, Laws of Florida, section
15 of which directed the Board of Trustees to convey to the County the
420-acre New Town Center lands. The statute established the price the
County was to pay for the 420 acres as a price not to exceed the price
paid by the Board of Trustees for the lands, plus any applicable interest.
Thereafter, the parties moved to abate the pending administrative proceeding.
Florida Wildlife Federation, Inc., then filed a constitutional challenge
to section 15, chapter 98-366, Laws of Florida, in the Circuit Court of
the Second Judicial Circuit. The County intervened in the constitutional
challenge as an interested party. The Circuit Court sustained the constitutionality
of section 15, chapter 98-366, Laws of Florida, whereupon Florida Wildlife
Federation, Inc., filed the pending appeal.
Florida Wildlife Federation, Inc., and the individual plaintiffs have
now negotiated a compromise agreement with the County which they have
reduced to writing and are requesting that the Board of Trustees adopt.
The agreement provides for the transfer of 114 acres of the originally
designated 420 acres to the County for development and establishment of
the South Walton New Town Center for educational, governmental, and civic
uses. The agreement also provides for a separate 140-acre parcel acquired
as part of the Point Washington acquisition, but lying outside of the
present CARL boundary, to remain under management as part of the Point
Washington State Forest, and urges the Board of Trustees to complete the
proposed acquisition of the Point Washington State Forest. Approval of
the Settlement Agreement will require the Board of Trustees to transfer
title of the 114-acre parcel to the County for development of the South
Walton New Town Center; to retain the remaining 306 acres of the original
420-acre parcel; and to retain the additional 140-acre parcel, to be managed
as part of the Point Washington State Forest by the Department of Agricultural
and Consumer Services, Division of Forestry. If approved by the Board
of Trustees, the Settlement Agreement will supercede the recommendations
of the Working Group.
The purchase price to be paid by the County equals the state's cost
to acquire the 114 acres, plus an amount equal to the interest the state
would have received had it deposited it in the CARL fund for the period
of time extending from the original date of purchase through May 25, 1999,
the date of Board of Trustees' approval of the Settlement Agreement.
A consideration of the status of the local government comprehensive
plan was not made for this item. The DEP has determined that the proposed
request is not subject to the local government planning process.
(See Attachment 11, Pages 1-46)
RECOMMEND APPROVAL
Item 12 Trustees of the Internal Improvement Trust
Fund v. Lykes Brothers, Inc. Settlement Agreement
REQUEST: Consideration of a request to approve a Settlement Agreement
in the case of Trustees of the Internal Improvement Trust Fund v. Lykes
Brothers, Inc.
COUNTY: Glades
APPLICANT: Department of Legal Affairs
Attachments will be submitted separately.
RECOMMEND APPROVAL
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