Cabinet
Affairs |
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AGENDA
BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND
DECEMBER 12, 1995
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Item 1 Minutes
Submittal of the minutes of the October 24, 1995 Cabinet meeting.
RECOMMEND ACCEPTANCE
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Item 2 10 Year Sovereignty, Submerged Land Live Rock
Aquaculture Lease
DEFERRED FROM THE NOVEMBER 29, 1995 AGENDA
REQUEST: Issuance of a ten-year sovereignty, submerged
land live rock aquaculture lease containing 2.5 acres, more or
less.
COUNTY: Monroe
Application No. 44-AQ-215
APPLICANT: Nanette Young
LOCATION: Between Long Point Key and Crawl Key, in
Florida Bay, in Class III Outstanding Florida Waters, within the
local
jurisdiction of Monroe County, at the following
(latitude/longitude)
coordinates:
Latitude Longitude Description
80º58'59.76"W 24º45'28.47"N Northwest Corner
80º58'56.33"W 24º45'30.86"N Northeast Corner
80º58'58.90"W 24º45'26.23"N Southwest Corner
80º58'54.57"W 24º45'28.71"N Southeast Corner
CONSIDERATION: $61.74, representing (1) an initial lease
fee of $15.58 per acre or fraction thereof; and (2) an annual
surcharge of $15, representing $5 per acre or fraction thereof,
for deposit in the Marine Biological Trust Fund pursuant to
section 370.16(4)(b), F.S. The lease fees shall be adjusted
every five years, based upon the five-year average change in the
Consumer Price Index.
STAFF REMARKS: The applicant is requesting approval of a
commercial aquaculture lease to cultivate and harvest artificial
live rock within a 2.5-acre parcel of sovereignty, submerged
land, in Florida Bay. The proposed project involves the
placement of approximately 75,000 pounds of quarried coral (non-
indigenous) rock per year, in order to recruit larval marine
organisms from a corridor of hard bottom habitat adjacent to the
proposed lease site. Once a desired rock growth stage has been
achieved, the applicant will harvest the rocks and sell them in
conjunction with the aquarium trade.
In May 1989 the department adopted a policy against harvesting
(wild) live rock within the territorial limits of Florida.
Subsequently, on July 1, 1992, the Florida Marine Fisheries
Commission closed the harvest of live rock in state waters. In
lieu of wild harvest, the department opted to encourage
aquaculture, using rock obtained from upland sources as a means
to fill the demand of live rock for the aquarium trade (a 1.6
billion dollar U. S. industry, and four billion spent on the
aquarium trade worldwide). Live rock is now an integral part of
the entire marine life aquarium trade.
The federal government has implemented a phase-out of all live
rock harvested in federal waters. By the end of 1996, no wild
live rock can be harvested in federal waters. As such, persons
such as the applicant, whose livelihood is dependent on the
harvest of live rock, will be put out of
Board of Trustees
Agenda - December 12,1995
Page Two
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Item 2, cont.
business, unless such harvest takes place on approved live rock
aquaculture leases in state waters, and permitted sites in
federal waters.
The proposed project is located within Monroe County, designated
as Outstanding Florida Waters; as such, no dredge/fill permit
should be issued if such activity damages the viability of a
living stony coral community, soft coral community, sponge bed,
or marine seagrass community. The field staff opined that no
adverse impacts to those resources would occur because the
proposed project was reduced to only 2.5 acres, from the original
five acres, and that site is void of seagrass beds and such other
significant resources. This position was reaffirmed by the staff
of the Submerged Lands and Environmental Resources Permitting
Program that indicated that the proposed project qualifies for a
deminimus exemption, indicating that no adverse environmental
impacts are anticipated from the proposed activities, provided
that the special lease conditions were implemented.
Objections to the proposed lease were received from staff of the
Division of Recreation and Parks' Bureau of Parks District 5 and
one property owner. Objections by the DRP were based on the
location of the proposed lease within or immediately adjacent to
the management line for the Curry Hammock Management Area.
Review by the Bureau of Survey and Mapping indicated that the
proposed lease was more than 3,000 feet from the management line.
Subsequently, the Division of Recreation and Parks recommended
that the application be approved and indicated that the distance
between the proposed location and the management area is expected
to provide an adequate buffer zone and safeguards. The
objections of the property owner were also based on the location
of the proposed lease and the potential for adverse environmental
impacts to adjacent habitats. The proposed lease is about 1,000
feet from the upland property and the attached resource
assessment report indicates that the proposed activities are not
expected to result in adverse environmental impacts.
The proposed project site is an average of ten feet in depth.
The applicant's business plan stipulates the preemption of no
more than 15 inches of the water column.
Chapter 258.42, F. S., states that aquaculture is presumed to
be in the public interest and is limited to activities that do
not result in adverse environmental impacts. The Department has
not applied a more stringent standard to aquaculture leases in
other waters of the state than it has in aquatic preserves. The
presumption that aquaculture is in the public interest has been
extended to Outstanding Florida Waters.
A consideration of the status of any local government
comprehensive plans was not made for this item. The department
has determined that the proposed action is not subject to the
local government planning process.
(See Attachment 2, Pages 1-43)
RECOMMEND APPROVAL SUBJECT TO FINAL ACTION BY THE U.
S. ARMY CORPS OF ENGINEERS AND COMPLIANCE WITH THE
SPECIAL LEASE CONDITIONS
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Item 3 Chapter 18-7, F.A.C. Rule Repeal
REQUEST: Consideration of a request to enter into
rulemaking to repeal rule chapter 18-7, F.A.C., which governs
rules of procedure for recommended orders regarding
authorizations to use sovereign submerged lands and conduct of
meetings of the Board of Trustees.
Board of Trustees
Agenda - December 12, 1995
Page Three
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Item 3, cont.
APPLICANT: Division of Environmental Resource Permitting
LOCATION: Statewide
STAFF REMARKS: By Executive Order 95-74, Governor Chiles
directed each state agency to identify rules that it recommends
should be repealed, even though such repeal may require
legislative action, because such rules: are obsolete; are
unnecessary for organization or procedure; merely track statutory
language; are required by statute even though the agency does not
need the rule to implement the legislative direction; were
adopted pursuant to section 120.535, F.S.; or are unnecessary.
Chapter 18-7, F.A.C., contains Part I, Rules of Procedure, and
Part II, Rules Governing Conduct of Meetings of Board of Trustees
of the Internal Improvement Trust Fund (BOT). Part I of chapter
18-7, F.A.C., is a procedural rule that the department has
identified as unnecessary, in that, as an agency for purposes of
chapter 120, F.S., the Board of Trustees shall apply the
procedures outlined in the Model Rules of Procedure, in the
absence of specific agency rules. Part II is also recommended
for repeal because it contains material that is applicable to the
entire Cabinet agenda/review process or procedures that can be
adopted by motion and need not be contained in a rule.
If the proposed repeal of this rule is approved by the BOT, the
department will publish a Notice of Proposed Repeal in the
Florida Administrative Weekly.
(See Attachment 3, Pages 1-3)
RECOMMEND CHAPTER 18-7, F.A.C., BE REPEALED TO COMPLY WITH
EXECUTIVE ORDER 95-256
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Item 4 Metropolitan Dade County/DERP Memorandum of
Agreement
REQUEST: Authority to enter into a memorandum of
agreement (MOA) with Metropolitan Dade County regarding
minor activities that qualify for an exemption or a letter
of consent.
COUNTY: Dade
APPLICANT: Division of Environmental Resource Permitting
STAFF REMARKS: Because of local government rules that
require applicants to obtain proprietary authorizations before
issuance of a local permit, delays have occurred in the approval
process for certain minor activities.
Staff of the Department of Environmental Protection (DEP) and
Dade County's Department of Environmental Resources Management
(DERM) have identified a list of activities, the processing of
which can be expedited without weakening environmental protection
(see Attachment A of the proposed MOA). All of the projects
listed in Attachment A are statutorily exempt from regulatory
permitting at the state level and are either administratively
exempt from proprietary review or require a routine proprietary
letter of consent. The applicant will apply to DERM, and, if
authorized by DERM, the appropriate exemption letter or letter of
consent from the Board of Trustees will be attached to the local
permit. The proposed process will not diminish environmental
protection because DERM staff currently conducts site assessments
for all of these minor activities.
Board of Trustees
Agenda - December 12,1995
Page Four
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Item 4, cont.
Staff believes that the proposed process for project types listed
in Attachment A of the MOA responds to the goals of eliminating
duplication and reducing processing time with the additional
benefit of site inspections. This list was developed after
recognizing that DEP staff essentially approves the same projects
as does the staff of DERM. The only apparent difference is the
time lapse between authorizations. Since DEP staff will no
longer review the listed activities, the net effect will be a
slight reduction in workload for DEP Southeast District staff, no
increase in workload for DERM staff, and reduced processing times
for applicants.
The MOA is being presented for approval so that, upon approval by
Metropolitan Dade County, it may be implemented immediately
without returning to the Board of Trustees. This approval is
sought to allow the Secretary of DEP to sign the MOA. If
Metropolitan Dade County requests any substantial change, it will
be brought back to the Board of Trustees for consideration.
(See Attachment 4, Pages 1-6)
RECOMMEND APPROVAL
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Item 5 "Storm of the Century" Quitclaim Deeds
REQUEST: Conceptual approval of quitclaim deeds to
allow the reconstruction of certain homes on sovereignty,
submerged land that were destroyed during the "Storm of the Century."
COUNTY: Taylor
APPLICANT: Affected Property Owners/"Storm of the
Century"
LOCATION: Dekle Beach: Sections 22 and 27, Township 07
South, Range 07 East, in the Gulf of Mexico, Class
III Waters;
Keaton Beach: Section 35, Township 07
South, Range 07 East, in the Gulf of Mexico, Class
III Waters; all within the local jurisdiction of
Taylor County.
Aquatic Preserve: No
Outstanding Florida Waters: No
CONSIDERATION: N/A
STAFF REMARKS: Historically, various residential
structures, such as weekend cottages, stilt houses, mobile homes,
some commercial buildings, storage sheds, and similar structures
have been constructed along the shallow, marshy coastline of Taylor
County. Most of these residential structures were originally
constructed at or above the mean high water line on private
uplands. Over many years of natural erosion, the shoreline
receded, resulting in many of these structures extending totally
or partially beyond the mean high water line onto what has become
sovereignty, submerged lands of the state. These types of
structures are defined by Board of Trustees' rule as "nonwater-
dependent" structures.
On March 13, 1993, many of these structures were severely damaged
or destroyed by the "Storm of the Century." Some of the property
owners have been pursuing permission from local and state
governments to rebuild their structures since that date. Most of
the local and state regulatory permitting issues have now been
resolved. Since many of the lots do not have sufficient upland
for residential construction, the major remaining issue involves
the landowners'
Board of Trustees
Agenda - December 12, 1995
Page Five
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Item 5, cont.
ability to reconstruct residences extending onto sovereignty,
submerged lands.
Section 18-21.004(1), F.A.C., states that activities on
sovereignty lands shall be limited to water-dependent activities
unless the Board of Trustees determines that it is in the public
interest to allow an exception as determined on a case-by-case
evaluation. This rule also states that stilt houses, boathouses
with living quarters, or other such residential structures shall
be prohibited on sovereignty lands. Section 18-21.017, F.A.C.,
allows for riparian owners to reclaim private uplands lost due to
an avulsive action such as a storm. However, the department has
determined that the loss of uplands in this case was not the
result of avulsion. Loss of upland property resulting from
gradual erosion cannot be reclaimed and becomes state-owned
submerged lands.
There are 14 property owners in Dekle Beach and two owners in
Keaton Beach who have been identified by staff who may require
permission from the Board of Trustees to rebuild homes destroyed
by the storm. Four of the 14 in Dekle Beach appear to have
sufficient land existing so that such approval would not be
necessary. The specific issue before the Board of Trustees is
whether to grant an exception to Board of Trustees' rules or
issue a quitclaim deed, based on social and economic hardships
suffered by these property owners, to allow them to rebuild their
residential structures.
The Board of Trustees has four options: deny the use of
sovereign land, issue leases, provide consents of use, or provide
quitclaim deeds. Staff recommends issuance of quitclaim deeds,
at no cost to the applicants, over parcels sufficient to
reconstruct houses on pilings and minimal parking areas. Staff
estimates that in most cases this area will be approximately 50
feet by 50 feet. The total area to be quitclaimed for the 16
possible affected owners is less than one acre. If the
residences are reconstructed, some or all of the applicants will
need to place some fill on the proposed quitclaim land. All
filling and any containment bulkhead structures shall be placed
within the quitclaim area. If approval is granted, the Board of
Trustees could issue quitclaim deeds which will allow the
applicants to secure bank loans for reconstruction. In return,
staff recommends the lot owners be required to issue a quitclaim
deed to the Board of Trustees for the remainder of the area
waterward of the state's quitclaimed area, to clearly resolve all
ownership issues.
Issuance of DEP environmental resource permits are contingent
upon the applicants' commitment to purchase an offsite upland
parcel and construct a sewage treatment package plant (or multi-
user septic tank system). The applicants have made the
commitment and a site has been approved by DEP.
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 Taylor County.
(See Attachment 5, Pages 1-6)
RECOMMEND CONCEPTUAL APPROVAL OF QUITCLAIM DEEDS
Board of Trustees
Agenda - December 12, 1995
Substitute Page Six
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Substitute Item 6 Island Marina, Inc., Lease
Modification
DEFERRED FROM THE NOVEMBER 29, 1995 AGENDA
DEFERRED FROM THE OCTOBER 24, 1995 AGENDA
REQUEST: Consideration of an application for a
modification of a 25-year sovereignty, submerged land lease
to contain a total of 79,092 square feet, more or less,
for an expansion of an existing commercial docking facility.
COUNTY: Collier
Lease No. 111000635
Application Nos. 112545225 and 112719925
APPLICANT: Island Marina, Inc.
(f/k/a Shelter Island Joint Venture;
Shelter Island Development; Shelter Island
Land Trust; and B. Charles Johnson, Trustee)
LOCATION: Section 17, Township 48 South, Range 25
East, in the Cocohatchee River, Class II waters,
within the local jurisdiction of Collier County.
Aquatic Preserve: No
Outstanding Florida Waters: No
(currently proposed for OFW status)
CONSIDERATION: $6,430.75 as the initial lease fee computed
at the base rate of $0.1038 per square foot, discounted 30 percent
because of the first-come, first-served nature of the facility, and
including the initial 25 percent surcharge payment for the additional
area. Sales tax will be assessed pursuant to section 212.031, F.S.,
if applicable. The lease fee may be adjusted based on seven percent
of the rental rate pursuant to section 18-21.011, F.A.C.
STAFF REMARKS: The applicant is proposing to expand the
mooring area of an existing commercial docking facility by extending
the lease boundary waterward of its existing location. This
modification will involve relocation of mooring pilings farther
waterward and installation of additional mooring pilings. One of
the existing slips will be dedicated for access to the sewage
pumpout, thereby reducing the total number of slips to 79. The
original sovereignty, submerged land lease, approved by the Board
of Trustees on February 12, 1991, authorized the preemption of
52,736 square feet of sovereignty lands to construct an 80-slip
commercial marina.
In 1990, a request was presented to the Board of Trustees from
Shelter Island Joint Venture for a submerged land lease for an 80-
slip commercial docking facility to be developed in conjunction
with a 91-unit condominium. At that time, staff recommended
denial because the number of slips exceeded the number allowed
for the condominium development. The applicant requested
deferral of its request and then withdrawal from the following
Board of Trustees meeting to obtain local approval.
Subsequently, Shelter Island Joint Venture revised its upland
plans by deeding the shoreline to Island Marina, Inc., which then
proposed to construct and operate the 80-slip commercial marina.
Condominiums were still proposed to be constructed on the
interior property and the unit owners would have no riparian
shoreline or any rights to use the marina beyond the 21 slips the
ownership oriented upland facility would have qualified for had
that entity remained the riparian upland property owner. That
request was approved and represents the lease in effect today.
This lease does not stipulate lengths or drafts of vessels.
Subsequent to execution of the 1991 lease, complaints were
received regarding advertising associated with the condominium.
The 1991 lease contained a special lease condition that required
the lessee to advertise the facility as open to the public on a
first-come, first-served
Board of Trustees
Agenda - December 12, 1995
Substitute Page Seven
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Substitute Item 6, cont.
basis by constructing permanent signs at the waterward entrance
to the docking facility and at the upland entrance to the
condominium development to clearly state that all of the berths
are available for rental by the general public. The applicant
installed the signs; however, advertising associated with the
condominium included visuals of the docking facility and provided
information on the slips. According to the applicant, 39
advertisements were released by the condominium, three of which
referred to a "private marina" being associated with the
condominium. The agent for the applicant acknowledged the
mistake (after two of the advertisements) and stated that the
mistake would not occur in the future. Two additional
advertisements (dated July 1993 and February 1994) were supplied
by the Attorney General's office bringing the total to five
erroneous advertisements out of a total of 41. The applicant has
stated that the advertising was handled by the condominium, not
the marina owner, and that the two entities are separate. At
this time, the issue may be moot because all of the units have
been sold and the developer is no longer associated with the
condominium. The special lease condition pertaining to
advertising of marina slips as open to the public was revised to
specifically require that "any and all advertising" shall refer
to the facility as open to the public; this revised condition
will be part of this modified lease.
On May 28, 1991, the marina was conveyed to the condominium,
incorporated as a unit of the condominium, and reseparated.
After this action took place, the department reviewed the
transactions and determined that the marina still qualified as a
commercial marina. The lease was then amended to add a special
lease condition prohibiting future transfers without Trustees'
knowledge.
The docking facility was not built as originally authorized and
permitted; the perimeter dock was constructed two feet wider and
four additional access ramps were built. These changes were
required by Collier County to accommodate local ordinances. In
addition, the perimeter dock was constructed 54 feet longer and
placed between three and 14 feet waterward of its approved
location in an effort to follow the -4 foot bottom contour. This
resulted in a docking structure located outside the lease
boundary. The applicant was notified of the violation and
voluntarily removed the portions of the structure that extended
beyond the lease boundary. This action brought the project
within the preemption limits that had been originally approved.
The applicant subsequently sought approval for the revised
structure from Collier County, the former DER, and the Board of
Trustees. The Division of State Lands authorized a modified
lease in 1992 via a delegation of authority to authorize the as-
built structures within the original lease boundary. The current
request will authorize 26,356 square feet of additional sovereign
lands to allow the applicant to install floating finger pier
extensions and to relocate and place new mooring pilings, thereby
providing finger piers of the size originally authorized by the
Board of Trustees and providing longer slips. Specific
restrictions on the lengths, drafts, and beams of the vessels
that will be allowed to dock at the marina are included in the
Intent to Issue for the wetland resource permit (no. 112719925).
Special Lease Condition No. 12, attached, incorporates the
specific permit conditions of the wetland resource permit.
The docking facility will continue to be maintained on an open to
the public, first-come, first-served basis; the existing special
lease conditions will be included in the modified lease.
An April 20, 1994, site inspection verified that the applicant is
in compliance with the existing lease and all fees are current.
A DEP Intent to Issue a Permit was issued (for the relocation and
addition of mooring pilings and for additional mooring area) and,
provided that the Intent is not challenged, a permit will be
issued on December 14, 1995, for the entire project. A long-term
agreement associated with the previously issued permit prohibits
liveaboards and fueling facilities, and authorizes a sewage
pumpout facility. This agreement will remain in effect.
Recommendations from the Division
Board of Trustees
Agenda - December 12, 1995
Substitute Page Eight
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Substitute Item 6, cont.
of Marine Resources regarding manatees and shellfish have been
addressed. There are no seagrasses located within the expansion
area. The proposed project was not required to be noticed.
A local government comprehensive plan has been adopted for this
area pursuant to section 163.3167, F.S.; however, the Department
of Community Affairs (DCA) determined that the plan was 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 Collier County.
(See Attachment 6, Pages 1-12; and Attachment 12, Pages 13-39
from the November 29, 1995 Agenda)
RECOMMEND APPROVAL SUBJECT TO ISSUANCE OF A DEP
WETLAND RESOURCE PERMIT, THE SPECIAL LEASE
CONDITIONS, AND PAYMENT OF $6,430.75
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Item 7 Santa Rosa Bay Bridge Authority, Public Easement
WITHDRAWN FROM THE JULY 14, 1994 AGENDA
REQUEST: Consideration of an application for (1) a
50-year sovereignty, submerged land public easement containing a
total of 5,835,221 square feet (133.96 acres), more or less,
for a proposed public vehicular bridge and the widening of two
existing bridges; and (2) authorization for the severance of 36,200
cubic yards of sovereign material.
COUNTY: Santa Rosa
Application No. 572089039
Easement No. 29249
APPLICANT: Santa Rosa Bay Bridge Authority
(Santa Rosa Bay Bridge)
LOCATION: Sections 03,04,20,28, and 29, Township 02
South, Range 28 West, and Sections 05, 06, 08, 10,
15, 18, 21, 24, 27, and 28, Township 01 South,
Range 28 West, in Pensacola/East Bay, Trout Bayou,
and Indian Bayou, Class II waters, all within the
local jurisdiction of Santa Rosa County.
Aquatic Preserve: No
Outstanding Florida Waters: No
CONSIDERATION: No fees required for public rights-
of-way pursuant to section 18-21.004(1)(c), F.A.C. The project
qualifies for a waiver of the severance fee pursuant to section
18-21.011(3)(c)1., F.A.C., since the material will be placed on
public property and used for public purposes.
Board of Trustees
Agenda - December 12, 1995
Additional Page Eight-A
Item 7, cont.
STAFF REMARKS: The applicant is proposing to construct
a two-lane bridge across Pensacola/East Bay and to widen two existing
bridges across Trout and Indian Bayous to accommodate additional
traffic associated with the new bridge. The proposed bridge will
span the bay from Garcon Point to Redfish Point with a tie-in at
Highway 98 in the southern part of the county. The applicant is
also proposing to dredge 36,200 cubic yards of sovereign material
to create two work channels for construction barges.
The DEP wetland resource modified permit addresses possible
impacts to water quality, shellfish, and uplands. Comments from
the Division of Marine Resources concerning manatees were not
required for this project; comments concerning shellfish have
been addressed as specific conditions in the DEP wetland resource
modified permit. The northern terminus of the
Continued on next page
Board of Trustees
Agenda - December 12,1995
Page Nine
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Item 7, cont.
bridge will be located two miles west of the Yellow River Marsh
Aquatic Preserve and will be adjacent to uplands on Garcon Peninsula
which were purchased by the Northwest Florida Water Management District
for preservation purposes. There are no submerged grassbeds or oyster
bars within the corridor of the proposed work channels for bridge
construction. Short-term impacts from the project may include
turbidity and disruption of benthic invertebrates caused by
dredging and filling of the work channels, the installation of
bridge pilings, and tugboat operations. The proposed project was
not required to be noticed.
A local government comprehensive plan has been adopted for this
area pursuant to section 163.3167, F.S.; however, the Department
of Community Affairs (DCA) determined that the plan 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 Santa Rosa County.
(See Attachment 7, Pages 1-18)
RECOMMEND APPROVAL SUBJECT TO THE SPECIAL APPROVAL CONDITION
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Item 8 NWFWMD Purchase Agreement Termination/Garcon Point CARL/SOR
Project
WITHDRAWN FROM THE JULY 14, 1994 AGENDA
REQUEST: Consideration of a request from the Northwest
Florida Water Management District (NWFWMD) to terminate an agreement
to purchase an undivided fifty percent interest in the Garcon Point
CARL/SOR Project.
COUNTY: Santa Rosa
LOCATION: Sections 26, 27 and 28, Township 01 South, Range 29
West; and Sections 01, 02 and 03, Township 02 South, Range 28 West
APPLICANT: Northwest Florida Water Management District
STAFF REMARKS: On January 22, 1992, the Board of
Trustees approved a purchase agreement to acquire an undivided
fifty percent interest in a parcel of land that the NWFWMD had
acquired pursuant to a multiparty acquisition agreement with the
Division of State Lands. The parcel consisted of 1,868.29 acres
located within the Garcon Point CARL project as well as within an
approved Save Our Rivers project. The NWFWMD had previously
acquired the property on December 6, 1991, for $800,000. The
purchase agreement called for the Board of Trustees to reimburse
the NWFWMD $400,000 for the property and up to $7,500 for survey
costs. The property was to be managed by the Division of
Recreation and Parks with the NWFWMD listed as the cooperating
manager.
The closing has not yet occurred and the NWFWMD has written to
the department informing it that the water management district
wished to retain ownership of the entire Garcon Point tract. The
department informed the water management district that it would
submit the request to the Board of Trustees for its
consideration.
Board of Trustees
Agenda - December 12, 1995
Page Ten
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Item 8, cont.
The Division of State Lands has consulted with DRP regarding the
water management's request, and DRP concurs with it.
The agency has determined that this action is not subject to a
compliance plan consistency determination.
(See Attachment 8, Pages 1-21)
RECOMMEND APPROVAL
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Item 9 15 Purchase Agreements/South Savannas CARL Project
REQUEST: Consideration of (1) 15 purchase agreements to
acquire 18.75 acres within the South Savannas CARL project from thirteen
separate owners; and (2) a waiver of survey.
COUNTY: St. Lucie
LOCATION: Section 24, Township 36 South, Range 40 East
CONSIDERATION: $104,500
APPRAISED BY
REVIEW (Gray) APPROVED PURCHASE OPTION
NO. SELLER ACRES (08/24/94) VALUE PRICE DATE
------ ------ ----- ---------- -------- -------- -------
520001 Moffet 1.25 $ 6,500 $ 6,500 $ 6,500 90 days
520002 Donascimento 1.25 $ 6,500 $ 6,500 $ 6,500 after BOT
520003 Berkley 1.25 $ 6,500 $ 6,500 $ 6,500 approval
520004 Klein 1.25 $ 6,500 $ 6,500 $ 6,500
520005 Donascimento 1.25 $ 6,500 $ 6,500 $ 6,500
520006 Donascimento 1.25 $ 6,500 $ 6,500 $ 6,500
520007 Hancock 1.25 $ 7,000 $ 7,000 $ 7,000
520008 Ruiz 1.25 $ 6,500 $ 6,500 $ 6,500
520009 Young 1.25 $ 8,500 $ 8,500 $ 8,500
520010 DeCiantis 1.25 $ 6,500 $ 6,500 $ 6,500
520011 St.Lucie Invest. 1.25 $ 11,000 $11,000 $11,000
520012 Kastner 1.25 $ 6,500 $ 6,500 $ 6,500
520013 Kastner 1.25 $ 6,500 $ 6,500 $ 6,500
520014 Pursley 1.25 $ 6,500 $ 6,500 $ 6,500
520015 Holeman 1.25 $ 6,500 $ 6,500 $ 6,500
------ ------- --------
18.75 $104,500 $104,500
STAFF REMARKS: The South Savannas CARL project is ranked
number 4 on the Substantially Complete Project List approved by
the Board of Trustees on February 14, 1995, and is eligible for
negotiation under the Division of State Lands Land Acquisition
Workplan. This project contains 6,007 acres, of which 4,673.8
acres have been acquired or are under agreement to be acquired.
After the Board of Trustees approves these agreements 1,314.45
acres or 21.9 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.
The purchase price of the parcels to be acquired is based upon
acreages calculated from the platted dimensions of each of the
parcels as reflected on recorded subdivision plats and field
survey data. A waiver of the requirement for a survey of all
interior lots is being requested
Board of Trustees
Agenda - December 12, 1995
Page Eleven
*
Item 9, cont.
pursuant to section 18-1005, F.A.C., because, in the opinion of
the Bureau of Survey and Mapping, the benefit of a survey of
these parcels would be outweighed by the cost and time involved
in obtaining the surveys.
The environmental site assessments and title insurance
commitments will be provided by the purchaser prior to closing.
The South Savannas comprises the last relatively undisturbed
example of coastal freshwater marsh in southeastern Florida.
These communities support a great diversity of wild life, some of
which are rare and endangered in Florida. Additionally, this
project can support a range of recreational activities that are
compatible with the primary acquisition objective of resource
protection.
These properties will be managed by the Division of Recreation
and Parks as part of the Savannas State Reserve.
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 9, Pages 1-18)
RECOMMEND APPROVAL
*
Item 10 RKF, Inc. Option Agreement/Florida First
Magnitude Springs CARL Project
REQUEST: Consideration of an option agreement to
acquire approximately 62.58 acres within the Florida First
Magnitude Springs (Weeki Wachee) CARL Project from RKF, Inc.
COUNTY: Hernando
LOCATION: Section 35, Township 22 South, Range 17 East
CONSIDERATION: $530,000
REVIEW NO. 520016
APPRAISED BY
Dohring Schaefer APPROVED PURCHASE OPTION
ACRES (05/18/95) (05/10/95) VALUE PRICE DATE
62.58 $520,000 $597,000 $597,000 $530,000 05/31/96
STAFF REMARKS: The Florida First Magnitude Springs(Weeki
Wachee) CARL project is ranked number 14 on the Priority CARL
List approved by the Board of Trustees on February 14, 1995, and
is eligible for negotiation under the Division of State Lands
Land Acquisition Workplan.
This project contains 1,266.65 acres, of which 520.33 acres have
been acquired or are under agreement to be acquired. After the
Board of Trustees approves this agreement, 683.74 acres or 54
percent of the project will remain to be negotiated.
All mortgages and liens will be satisfied at the time of
closing. In the event the commitment for title insurance, to be
obtained prior to closing, reveals any other encumbrances which
may affect the value of the property or the proposed management
of the property, staff will so advise the Board of Trustees prior
to closing.
Board of Trustees
Agenda - December 12, 1995
Substitute Page Twelve
*
Item 10, cont.
The certified survey and environmental site assessment will be
provided by the purchaser.
Florida has approximately thirty first magnitude springs which
discharge on average at least 100 cubic feet of water per second.
Commercial, residential and agricultural run-off, clearcutting,
mining, and unsupervised recreation can degrade the water quality
of these springs and harm the Florida Aquifer. The First
Magnitude Springs Project is aimed at protecting eight of these
thirty springs by acquiring land around or near the headwaters.
The Weeki Wachee Springs group forms the headwaters of the Weeki
Wachee (or Weekiwachee) River. The area around the Weeki Wachee
Spring pool has been extensively developed and is a well known
tourist attraction; however, at present the upper river is
relatively pristine and includes natural communities such as
scrub, xeric hammock, depression marsh, spring-run stream and
aquatic caves. In addition to the recreational activities
associated with the headspring attraction, hiking, bicycling,
fishing, picnicking, canoeing, camping, nature appreciation and
natural resource education can be accommodated.
This property will be managed by Florida Game and Fresh Water
Fish Commission in conjunction with the Chassahowitzka Wildlife
Management Area.
This acquisition is consistent with section 187.201(10), F.S.,
the Natural Systems and Recreational Lands section of the State
Comprehensive Plan.
(See Attachment 10, Pages 1-29)
RECOMMEND APPROVAL
*
Substitute Item 11 Florida Department of Corrections\Nekoosa Packaging
Corporation Purchase Agreement
REQUEST: Consideration of a purchase agreement to acquire 27.5
acres from Nekoosa Packaging Corporation by the Florida Department of
Corrections.
COUNTY: Baker
APPLICANT: Florida Department of Corrections
LOCATION: Section 24, Township 03 South, Range 19 East
CONSIDERATION: $47,000
REVIEW NO. 520017
APPRAISED BY
HOLLIS * APPROVED PURCHASE CLOSING
ACRES (10/10/94) VALUE PRICE DATE
----- ---------- -------- -------- -------
27.5 $47,000 $47,000 $47,000 60 DAYS AFTER
BOT APPROVAL
* The appraisal was procured
and reviewed pursuant to
section 944.10, F.S.
STAFF REMARKS: This acquisition was negotiated by the
Florida Department of Corrections (DC). Funds appropriated by the
Florida Legislature are still available.
Board of Trustees
Agenda - December 12,1995
Substitute Page Thirteen
*
Substitute Item 11, cont.
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 by DC, 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.
An environmental site assessment and certified survey of the
property will be provided by DC prior to closing.
This property will be managed by DC as a spray field for the
Baker Correctional Institution.
This acquisition is consistent with section 187.201(07), F.S.,
the Public Safety section of the State Comprehensive Plan.
(See Attachment 11, Pages 1-17)
RECOMMEND APPROVAL
*
Substitute Item 12 University of North Florida/Park Joint
Venture/McGehee Family Partnership/ Pilot Corporation
of America- Purchase/Option Agreement
REQUEST:Consideration of (1) a purchase agreement to
acquire 43.9 acres; and (2) an option agreement to acquire 66.6
acres from East Park, Inc.; East Park Realty, Inc., doing business
as Park Joint Venture and McGehee Family Partnership by the
University of North Florida.
COUNTY:APPLICANT: University of North Florida
LOCATION: Section 05, Township 03 South, Range 28 East
CONSIDERATION: $6,100,000 ($2,685,000 - purchase
agreement and $3,415,000 - option agreement)
PURCHASE AGREEMENT
APPRAISED BY
REVIEW GRAINGER CANTRELL APPROVED PURCHASE CLOSING
NO. ACRES (06/01/95) (06/21/95) VALUE PRICE DATE
520018 43.9 $2,420,000 $2,685,000 $2,685,000 $2,685,000 01/30/96
OPTION AGREEMENT
APPRAISED BY
REVIEW GRAINGER CANTRELL APPROVED PURCHASE OPTION
NO. ACRES (06/01/95) (06/21/95) VALUE PRICE DATE
520019 66.6 $3,680,000 $4,065,000 $4,065,000 $3,415,000 09/01/96
STAFF REMARKS: These acquisitions were negotiated
by the University of North Florida (UNF). Funds for this acquisition
were appropriated by the 1994 Florida Legislature and are still
available. The Board of Regents approved this acquisition on May
17, 1994.
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 either parcel or the proposed management of either
parcel, staff will so advise
Board of Trustees
Agenda - December 12, 1995
Substitute Page Fourteen
*
Item 12, cont.
the Board of Trustees prior to closing. The property to be
acquired is currently a part of Eastpark, an industrial park in
Jacksonville. The seller has agreed to remove the property
from the industrial park at closing subject to the master
drainage plan remaining in place after closing. UNF has
stated that the master drainage plan will not impact its
management of the property.
The option agreement requires UNF to pay a $150,000 option
payment to the Seller. The option payment will be returned to
UNF if the agreement is terminated for any reason other than
default on the part of the state. The option agreement is
contingent upon (1) the purchase agreement closing and (2) the
1996 Florida Legislature appropriating the necessary funds.
A certified survey and environmental site assessment of both
parcels will be provided by the seller prior to closing.
These parcels are the last available land which is contiguous to
the UNF campus. Based upon expected growth as identified in
UNF's recently updated Master Plan, UNF views the acquisition of
both of these parcels as essential to UNF's future.
This property will be managed by the University of North Florida
as a part of its existing campus through a lease to the Florida
Board of Regents.
This acquisition is consistent with section 187.201(01), F.S.,
the Education section of the State Comprehensive Plan.
(See Attachment , Pages )
RECOMMEND APPROVAL
*
Item 13 Okeelanta Corporation/Everglades Agricultural
Area Lease
REQUEST: Consideration of a request to lease a parcel of
Board of Trustees owned land in the Everglades Agricultural Area as
required under chapter 94-115, Laws of Florida.
COUNTY: Palm Beach
Lease No. 2376
APPLICANT: Okeelanta Corporation
LOCATION: Everglades Agricultural Area
CONSIDERATION: Appraised market rent of $41,160 annually.
STAFF REMARKS: The 1994 Florida Legislature enacted the
"Everglades Forever Act" (chapter 94-115, Laws of Florida) which,
among other things, offered to lease Board of Trustees' land to
farmers impacted by the Everglades Restoration Project. The law
states that these impacted farmers shall have the right to lease
the parcels, upon expiration of the existing leases, for a term
of 20 years and at a rental rate determined by appraisal using
established state procedures. The Board of Trustees may also
adjust the rental rate on an annual basis using an appropriate
index, and update the appraisal at five-year intervals.
Only the south one-third of the subject lease falls under the
provisions of the "Everglades Forever Act" because, at the time
of the passage of the act, the north two-thirds was identified in
the conceptual design document for the restoration project
as land to be included in a
Board of Trustees
Agenda - December 12, 1995
Page Fifteen
*
Item 13, cont.
Stormwater Treatment Area (STA). However, the project continues
to undergo design modifications and the property may not
ultimately be needed for an STA. Staff feels that the whole
tract should be leased as if it were included in the act until
such time as a public need for the northern portion may be
identified. The South Florida Water Management District concurs.
The Board of Trustees retains the right to cancel the lease as to
the northern portion upon a 2-1/2 year notice.
A consideration of the status of any local government
comprehensive plans was not made for this item. The department
has determined that leasing of this property is not subject to
the local government planning process since it is mandated by
state law.
(See Attachment 13, Pages 1-30)
RECOMMEND APPROVAL
*
Item 14 Talisman Sugar Corporation/Everglades Agricultural
Area Lease
REQUEST: An extension of Everglades Agricultural Area
Lease No. 3422 until December 31, 1996, to allow the current tenant
to harvest one standing and one ratoon crop and complete negotiations
regarding the future disposition of the lease area.
COUNTY: Palm Beach
Lease No. 3422
APPLICANT: Talisman Sugar Corporation
LOCATION: Everglades Agricultural Area
CONSIDERATION: $213,086.43
STAFF REMARKS: The 1994 Florida Legislature
enacted the "Everglades Forever Act" (chapter 94-115, Laws
of Florida) which, among other things, offered to lease
Board of Trustees' land to farmers impacted by the Everglades
Restoration Project. The law states that these impacted farmers
shall have the right to lease the parcels, upon expiration
of the existing leases, for a term of 20 years.
According to the "Everglades Forever Act," this lease is
designated for vegetable farming. While the subject lease area
is now occupied by Talisman Sugar Corporation, the most affected
vegetable farmer, in this case A. Duda and Sons, has the superior
claim to the 20-year lease. Negotiations with Duda are under way
concerning the terms of the new lease. The South Florida Water
Management District has also expressed an interest in purchasing
the parcel should Duda decide not to take over the lease. While
these deliberations are taking place, staff believes it would be
advantageous to allow the current tenant to occupy the property.
A consideration of the status of any local government
comprehensive plans was not made for this item. The department
has determined that leasing of this property is not subject to
the local government planning process since it is mandated by
state law.
(See Attachment 14, Pages 1-4)
RECOMMEND APPROVAL
Board of Trustees
Agenda - December 12, 1995
Substitute Page Sixteen
*
Substitute Item 15 Gulsby v. Board of Trustees
Settlement Agreement
REQUEST: Consideration of a settlement agreement
resolving a title dispute.
COUNTY: Sarasota
APPLICANT: James F. and Mary V. Gulsby
LOCATION: South 1/2 of the Southwest 1/4 of Section 02,
Township 37 South, Range 20 East, Sarasota, Florida
CONSIDERATION: $20,000, and a quitclaim deed to six acres
in the southwest portion of the disputed area.
STAFF REMARKS: In 1981, the Division of Recreation and
Parks (DRP) commissioned a survey of the northern boundary of Myakka
River State Park. This survey revealed that more than two miles
of boundary fence was located inside the actual boundary of the
park, because of an earlier surveying error. Except for
approximately one-half mile, all of the fence has now been
relocated. The remaining area containing 31 acres, more or less,
is claimed by James F. and Mary V. Gulsby. Although the
department notified the Gulsbys of the error and the department's
intention to relocate the fence, the Gulsbys would not permit the
relocation, claiming the land was theirs.
In 1994, the Gulsby filed suit to quiet title to this area,
claiming that the boundary as fenced is the true line and that
the Gulsbys and their predecessors in title have maintained and
occupied the disputed area for at least 59 years. The boundary
claimed by the Gulsbys is marked with concrete monuments which
were erroneously erected years ago. The Gulsbys have occupied
the property since their purchase of the adjoining land, which
includes their home, in 1975.
To settle the dispute, the Gulsbys have offered to purchase 25
acres of the land in dispute for $20,000 and to quitclaim six
acres in the southwest corner of the disputed area which
encompass a wetland. The 25 acres consist of cleared pasture,
currently being used by Gulsby for livestock. The Gulsbys have
requested that the Board of Trustees waive the mineral and
petroleum reservations required by section 270.11, F.S., pursuant
to section 270.11(3), F.S. While an appraisal has not been
obtained, staff has reviewed the tax rolls for similar property
in the vicinity and found that such property is typically
assessed at approximately $1,000 per acre.
DRP has indicated that the 25-acre pasture is of little resource
value to the park and concurs with the terms of the settlement
agreement. The DRP has agreed to relocate the existing fence to
enclose the six-acre wetland area within the boundaries of the
Myakka River State Park.
In light of the expense and uncertainty of litigation, staff
recommends that the settlement agreement be approved.
(See Attachment 15, Pages 1-17)
RECOMMEND APPROVAL
*
Board of Trustees
Agenda - December 12, 1995
Page Seventeen
*
Item 16 Sabal Hammock/Lake Poinsette Status Report
REQUEST: Consideration of a status report of actions
taken at the direction of the Florida Land and Water Adjudicatory
Commission.
COUNTY: Brevard
LOCATION: Lake Poinsette
APPLICANT: Division of State Lands
STAFF REMARKS: As a result of a Final Order entered on
January 13, 1992, by the Florida Land and Water Adjudicatory Commission
in the matter of Save the St. Johns River vs. St. Johns River
Water Management District and David A. Smith, the Division of
State Lands (DSL) was directed to investigate certain allegations
raised in that proceeding that the Respondent, David Smith, had
constructed a series of dikes along the shoreline of Lake
Poinsette that encroached onto state sovereignty lands located
below the ordinary high water line of the lake. The DSL was
further directed "to take appropriate action including, if
necessary, the institution of a quiet title suit and any
appropriate judicial remedy to protect the state's ownership of
its land."
Based upon records reviewed by DSL, the subject dikes were
constructed in 1973 without permits. While the dikes were under
construction, a Florida Marine Patrol Officer visited the site
and opined that no permits were necessary. Nevertheless, in
1976, while processing an application submitted by Mr. Smith to
reconstruct certain dikes on the property, the Department of
Environmental Regulation (DER) initiated an enforcement action
against Mr. Smith to remove the dikes which DER felt had been
illegally constructed. That enforcement action was subsequently
abandoned when Mr. Smith agreed to remove and restore the
offending dikes as a condition of the permit he was seeking to
construct additional dikes at the 13.0-foot contour elevation.
When Mr. Smith submitted the application for that permit in April
1977, he also submitted an engineering report depicting the
ordinary high water line (OHWL) at 13.0 feet. Ultimately, both
DER and the Corps of Engineers (COE) issued permits to Mr. Smith
to construct new dikes on his property, conditioned upon his
breaching the older dikes. By 1983, the breaching was described
as 90 percent complete--the breaches had been cut but had not
been lowered all the way to the design specifications. Three
years later, in 1986, Mr. Smith decided to abandon construction
of the new dikes. Since breaching of the old dikes was only
required as a condition of the permits to build the new dikes,
the decision not to construct the new dikes effectively meant he
was under no further obligation to complete the breaching. In
fact, in 1986, he refilled the breaches in the old dikes, making
them once again functional. Subsequent to this action, Mr. Smith
completed his development plans and sought the permits from the
St. Johns River Water Management District that resulted in the
appeal that ultimately made its way to the Florida Land and Water
Adjudicatory Commission.
Prior to instituting an ordinary high water study of Lake
Poinsette, the DSL met with Mr. Smith and his attorney. At that
time, DSL was aware of the OHWL report submitted by Mr. Smith in
1977. His own study had suggested that the OHWL was at or near
the 13.0-foot NGVD contour elevation. Since the dikes at issue
here were located below the line delineated in that report, DSL
suggested he either remove those dikes or apply to the Board of
Trustees for authorization to use the state-owned land located
behind the dikes. DSL further suggested that such authorization
would more likely be granted if the uses proposed for the state-
owned land were less intensive and more oriented towards a public
purpose such as storm water retention rather than for residential
development. Mr. Smith subsequently rejected DSL's suggestion
that he redesign the project.
Board of Trustees
Agenda - December 12, 1995
Page Eighteen
*
Item 16, cont.
At that point, the DSL in cooperation with the St. Johns River
Water Management District conducted an ordinary high water study
of Lake Poinsette. The result of that study was the conclusion
that the ordinary high water level of Lake Poinsette falls at or
near the 13.8-foot NGVD contour elevation. Based upon ground
survey work performed by a contract surveyor, it was determined
that a substantial portion of the existing system of dikes was
constructed below the OHWL of the lake. Lands located waterward
of the OHWL of a navigable waterbody are considered state-owned
sovereignty lands.
While DSL is prepared to institute the appropriate legal action
as directed by the Governor and Cabinet, Mr. Smith, through his
attorney, has requested an opportunity to "demonstrate that the
Division's claim is unwarranted and unfair and that the Trustees
of the Internal Improvement Trust Fund should disclaim any
interest in the property."
There is no statutory or legal basis for the issuance of a
disclaimer. Disclaimers are authorized to be issued pursuant to
section 253.129, F.S., for lands filled or developed in
accordance with the Butler Act. Since these dikes were not
constructed until well after the Butler Act's repeal, such a
disclaimer would not be appropriate. In some instances, the
issuance of a disclaimer might be warranted where the state has
no legal interest in the property subject to the disclaimer.
That is not the case here, however, since the state owns the land
located below the OHWL of all navigable water bodies.
Other than issuing a disclaimer, there are two options available
to the Board of Trustees. First, the Board of Trustees could
grant Mr. Smith the authority, pursuant to a lease or easement,
to continue to maintain the dikes on public land and to use the
public land located landward of the dikes for private purposes.
Second, the Board of Trustees could convey to Mr. Smith all of
the state's right, title, and interest to the land under and
behind the dikes. Based upon staff's review of the facts and
circumstances of this matter, however we cannot recommend either
of those options. Rather, DSL believes that the most appropriate
course of action is to submit the legal and equitable issues to
the circuit court and seek to have the dikes removed and the
shoreline of Lake Poinsette returned to its natural condition.
Based on its analysis of the facts and law, DSL has concluded
that the dikes in question are located below the OHWL of Lake
Poinsette on state-owned, sovereign land; that Mr. Smith has not
and cannot show any exclusive rights and privileges pursuant to
which he is entitled to use these public trust lands; and that
appropriate legal action should be brought to have the dikes
removed.
(See Attachment 16, Pages 1-32)
RECOMMEND ACCEPTANCE
