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AGENDA Substitute
Page Item 1 Minutes Submittal of the October 27, 1998, November 10, 1998, November 24, 1998, and December 8, 1998 Cabinet Meetings. RECOMMEND ACCEPTANCE *************************************************** Substitute Item 2 Cornell/Ross Option Agreement/Survey Waivers/Florida Keys Ecosystem CARL Project REQUEST: Consideration of (1) two option agreements to acquire 1.6 acres within the Florida Keys Ecosystem CARL project from Errol S. and Jane H. Cornell, and Harry M. Ross, Trustee; and (2) a request for survey waivers. COUNTY: Monroe LOCATION: Section 24, Township 62 South, Range 38 East CONSIDERATION:
$10,500 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 utilize appraisals based on land use regulations in effect as of January 1, 1996, in Monroe County, Florida. 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. A waiver of the requirement for surveys of the properties is being requested pursuant to section 18-1.005, F.A.C., because, in the opinion of the Bureau of Survey and Mapping, the cost of the surveys would be prohibitive relative to the expected value of the parcels. While these properties are being recommended for a waiver of survey at this time, should the title commitments reveal a substantive surveying or surveying related issue which impacts the properties, surveys will be provided by the Division of State Lands (DSL) prior to closing. In cooperation with the managing agency, the DSL will acquire any special purpose survey work necessary for the effective management of the properties.
************************************************** Substitute Item 2, cont. 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 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 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 give residents and visitors more areas for enjoying the natural beauty of the Keys. These properties will be managed by the Florida Game and Freshwater Fish Commission for the conservation and preservation of their natural resources. These acquisitions are consistent with section 187.201 (10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan. (See Attachment 2, Pages 1-27) RECOMMEND APPROVAL *************************************************** Item 3 Carla Blaskovic Option Agreement/Wekiva-Ocala Greenway CARL Project REQUEST: Consideration of an option agreement to acquire 35.96 acres within the Wekiva-Ocala Greenway CARL project from Carla Blaskovic, Trustee. COUNTY: Lake LOCATION: Section 13, Township 17 South, Range 28 East CONSIDERATION:
$72,500 * Approved value revised on September 9, 1998, due to increased acreage and increased upland and wetland ratio data. STAFF REMARKS: The Wekiva-Ocala Greenway CARL project is ranked number 8 on the CARL Priority Project List approved by the Board of Trustees on February 10, 1998, and is eligible for negotiation under the Division of State Lands' Land Acquisition Workplan. The project contains 67,397 acres, of which 32,958.28 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement, 34,402.76 acres or 51 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 ************************************************** Item 3, cont. 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, an environmental site evaluation and, if necessary, environmental site assessment will be provided by the purchaser prior to closing. The seller will reimburse purchaser's title policy costs. A survey will be provided by the seller prior to closing. The purchaser will reimburse the seller's survey costs, not to exceed $11,000. The springs, rivers, lakes, swamps and uplands stretching north from Orlando to the Ocala National Forest are an important refuge for the Florida black bear, as well as other wildlife such as the bald eagle, swallow-tailed kite, Florida scrub jay and wading birds. The Wekiva-Ocala Greenway CARL project will protect these animals and the Wekiva and the St. Johns river basins by protecting natural corridors connecting Wekiwa Springs State Park, Rock Springs Run State Reserve, the Lower Wekiva River State Reserve and Hontoon Island State Park with the Ocala National Forest. It will also provide the people of the booming Orlando area with a large, nearby natural area in which to enjoy camping, fishing, swimming, hiking, canoeing and other recreational pursuits. The property will be managed by the Department of Agriculture and Consumer Services, Division of Forestry as part of the Seminole State Forest. This acquisition is consistent with section 187.201 (10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan. (See Attachment 3, Pages 1-20) RECOMMEND APPROVAL *************************************************** Item 4 Six Option Agreements/Charlotte Harbor Flatwoods CARL Project REQUEST: Consideration of six option agreements to acquire 361.5 acres within the Charlotte Harbor Flatwoods CARL project from Ronald M. Childree, Harborside Lakes Trust, Corrine Gunkel, Laura Ruth Nelson, William R. Schuchter and Arthur E. Erb. COUNTY: Charlotte LOCATION: Section 33, Township 42 South, Range 23 East CONSIDERATION:
$649,350 STAFF REMARKS:
The Charlotte Harbor Flatwoods CARL project is ranked number 13 on the
CARL Priority Project List approved by the Board of Trustees on February
10, 1998, and ************************************************** Item 4, cont. is eligible
for negotiation under the Division of State Lands' Land Acquisition Workplan.
The Parcels 46, 52, and 53 are subject to outstanding oil, gas and mineral interests with right of entry in favor of Hugh E. Parrish and Marian Fisher Parrish, beginning in January 1964. Parcel 48 is subject to outstanding oil, gas and mineral interests with right of entry in favor of T. A. Morison, beginning February 1952. The Bureau of Geology determined that there is no significant potential for commercial oil, gas and mineral production at this site. The appraiser was aware of the outstanding interests and took them into consideration when determining the value of the property. The seller intends to acquire the interests and convey them to the state at closing. The Florida Game and Fresh Water Fish Commission (GFC), the future managing agency, has determined that while they prefer the interests to be acquired, if this is not possible, they recommend acquiring the property with the interests outstanding. 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. Northwest of Fort Myers lies the largest and highest-quality slash-pine flatwoods left in southwest Florida. The pines are home to red-cockaded woodpeckers, black bears, and bald eagles, and an occasional Florida panther ranges the area. The largest population in the world of the rare beautiful pawpaw grows here. Several drainage ditches flow through these flatwoods into the Charlotte Harbor Aquatic Preserve. The Charlotte Harbor Flatwoods CARL project will protect these flatwoods and connect the Charlotte Harbor State Buffer Preserve with the Cecil M. Webb Wildlife Management Area, helping to protect both of these managed areas and the waters of the Aquatic Preserve. These properties will be managed by the GFC as part of the Cecil M. Webb Wildlife Management Area. 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 4, Pages 1-98) RECOMMEND APPROVAL *************************************************** Substitute Item 5 J. Paul Fitzgerald, et al Option Agreement/Sandy Point Buffer Greenways and Trails Project REQUEST: Consideration of an option agreement to acquire 13.60 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 ************************************************** Substitute Item 5, cont. APPLICANT: Office of Greenways and Trails LOCATION: Sections 35 and 36, Township 1 North, Range 28 West CONSIDERATION: $5,100
APPRAISED BY STAFF REMARKS: The Sandy Point Buffer project has been identified on the Office of Greenways and Trails program 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, 84.6 acres or 86 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 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 260.015, F.S., and section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan. (See Attachment 5, Pages 1-35) RECOMMEND DEFERRAL *************************************************** Item 6 Robert M. Porter Option Agreement/St. Marks National Wildlife Refuge (Spring Creek Addition to the National Scenic Trail) Greenways and Trails Project REQUEST: Consideration of an option agreement to acquire 304.96 acres within the St. Marks National Wildlife Refuge (Spring Creek Addition to the National Scenic Trail) project under the Preservation 2000 Florida Greenways and Trails program from Robert M. Porter. COUNTY: Wakulla APPLICANT: Office of Greenways and Trails LOCATION: Lot 106 of the Hartsfield Survey, Township 04 South, Range 01 West Board of
Trustees ************************************************** Item 6, cont. CONSIDERATION:
$243,200 STAFF REMARKS: The St. Marks National Wildlife Refuge (Spring Creek Addition to the Florida National Scenic Trail) project has been identified on the Office of Greenways and Trails program 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. This project contains two ownerships forming a corridor of approximately 1.7 miles along the St. Marks National Wildlife Refuge. After the Board of Trustees approves this agreement, one ownership will remain to be acquired. The fee appraisers for this acquisition were asked to value the parcel both with and without legal access. At the time the appraisals were ordered, it had not been determined whether the owner had legal access to the parcel. This transaction was negotiated as though the owner had no legal access. Rogers valued the parcel with and without legal access without considering the cost to cure. Carlton valued the parcel with legal access and then adjusted that value downward by his estimate of the cost to cure. The end result was the Carlton value for the parcel with no legal access is higher than the Roger's value with no legal access. It is the opinion of the review appraiser that the difference in value stemmed from the legal access issue and that the Carlton analysis is better supported. The review appraiser recommended placing more weight on the Carlton value estimate in negotiating with the owner. This property will be managed by the U.S. Fish and Wildlife Service, a division of the U.S. Department of the Interior, as a segment of the Florida National Scenic Trail. The managing agency has agreed to manage the property without legal access because it adjoins the St. Marks National Wildlife Refuge. In the event the lease with the managing agency is terminated, the managing agency has agreed to continue to provide access to the parcel via the refuge. 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 acquisition is consistent with section 260.015, F.S., and section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan. (See Attachment 6, Pages 1-37) RECOMMEND
APPROVAL ************************************************** Item 7 Seven Option Agreements/Corkscrew Regional Ecosystem Watershed CARL Project REQUEST: Consideration of authorization to acquire 100 percent interest in 150 acres within the Corkscrew Regional Ecosystem Watershed CARL project from seven separate owners. COUNTY: Lee LOCATION: Sections 25, 26 and 36, Township 47 South, Range 26 East CONSIDERATION: $215,000 STAFF REMARKS: The Corkscrew Regional Ecosystem Watershed (CREW) CARL project is ranked number 11 on the CARL Bargain/Shared Project List approved by the Board of Trustees on February 10, 1998, and qualifies for purchase under the Division of State Lands' Land Acquisition Workplan. The project contains 59,008 acres, of which 20,055 have been acquired by the South Florida Water Management District (District) and Lee County, and 879.5 acres have been acquired or are under contract to the Board of Trustees. After the Board of Trustees approves this agreement, 37,923.5 acres or 64 percent of this project will remain to be acquired. When CREW was added to the CARL list in 1991, a limit was placed on the CARL involvement to encourage local participation in the project. The project was initially planned to be a four-party project, with equal participation by Lee and Collier counties, the District and the Board of Trustees. To encourage this participation, the Land Acquisition Advisory Council (LAAC) placed both a geographical and financial restriction on the CARL participation in the project. Based on the fact that the Board of Trustees' share of the overall purchase was to be 25 percent, and the initial project cost estimate was $40 million, a $10 million "cap" was imposed and acquisition efforts were limited to the Camp Keis Strand Corridor. While both Lee County and the District began acquiring land within the project, participation by the Division of State Lands and Collier County was stalled. In the CARL acquisition area (Camp Keis Strand), the Collier family was the largest owner. They were pursuing an exchange with the federal government and were unwilling to consider a sale to the Board of Trustees while these efforts were underway. Collier County's bond referendum did not pass and it has been unable to contribute to the project. On November 20, 1992, the LAAC modified the project design to remove the geographical restriction (Camp Keis Strand) but maintained the $10 million cap. The LAAC also limited the CARL match to acquisitions made by the District after the date of the LAAC meeting. Following this decision, staff began working with the District to identify lands purchased that would qualify for the CARL match. Various options to pursue cooperative purchases were considered. In 1994,
the legislature enacted section 259.041, F.S., which provided the authority
to adopt District procedures for joint acquisitions. On June 27, 1995,
the Board of Trustees authorized staff to enter into an acquisition agreement
with the District to acquire various ownerships located within the CREW
CARL project in accordance with section 259.041(16), F.S., utilizing the
procedures set out in section 373.139, F.S. At the time the original agreement
was entered into, the LAAC-imposed cap on funding was still in effect.
The District had already made some purchases in the project and requested
that the Board of Trustees match the District's contribution by paying
100 percent of the cost until the Board of Trustees' expenditures equaled
the District's. However, since the estimated cost of the parcels ************************************************** Item 7, cont. remaining to be acquired in the project exceeded $20 million, a 50/50 match on each succeeding acquisition would exhaust the Board of Trustees' funding limit of $10 million before the project acquisition was completed. For this reason, a 50/50 agreement was recommended and approved. On October 30, 1995, the LAAC expanded the project boundary, eliminated the $10 million cap and designated the project a shared acquisition with the District. As a shared acquisition, the District and the Board of Trustees are each expected to spend the same amount in acquiring land within the project. Since the District has already made some purchases for which it would be credited, staff agreed that it would be appropriate for the Board of Trustees to match those purchases called for under the acquisition agreement. Therefore, the acquisition agreement was amended to provide that the Board of Trustees purchase $13,360,000 worth of land in the project at its sole cost and expense before the 50/50 shared acquisitions will resume. The District has provided documentation, acceptable to the Division of State Lands, establishing the District's expenditure in this project. Following the Board of Trustees' authorization of these acquisitions, $1,606,454 worth of land will have been purchased by the Board of Trustees towards matching the District's purchases in this project. The remaining matching balance will be $11,753,546. The District has acquired seven options to purchase eight parcels (one at 82.5 percent; two at 88 percent; and five at 100 percent of the appraised values) from The Nature Conservancy (TNC). Pursuant to the terms of the amended acquisition agreement, the District shall be reimbursed for all costs associated with acquiring the eight properties, including pre-acquisition and closing related costs. The Board of Trustees' purchase price will be 100 percent of the contract price negotiated by the District plus 100 percent of the cost incurred in the purchase of the property. Title to the property acquired will vest in the Board of Trustees. As provided for in the amended acquisition agreement, the Governing Board of the District adopted Resolutions 98-102 and 98-114 requesting the Board of Trustees' share of the purchase price for the eight parcels, reimbursement of 100 percent of its pre-acquisition and reimbursement of 100 percent of its closing costs. Pursuant to the amended acquisition agreement, the pre-acquisition and closing costs will be reimbursed from CARL incidental expense funds. The District's resolutions contain all of the assurances required by the amended acquisition agreement. The property will be managed by the District as a conservation and preservation area with passive public use. These acquisitions are consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan. (See Attachment 7, Pages 1-17) RECOMMEND APPROVAL *************************************************** Item 8 Three Purchase Agreements/One Option Agreement/Survey Waivers/Coupon Bight/Key Deer CARL Project REQUEST:
Consideration of (1) three purchase agreements and one option agreement
to acquire 25.042 acres within the Coupon Bight/Key Deer CARL project
from Marvin and Catherine Penny, Trustees; Sharon Ryland McSwiggan, Brian
Ryland, Linda L. Ryland, Sheila Ryland, and Kathleen Ryland; Jesse W.
and June C. Paul; and Mark S. and Kimberly D. Bell; and (2) a request
for survey waivers for the Ryland, Paul and Bell properties. ************************************************** Item 8, cont. COUNTY: Monroe LOCATION: Sections 04, 05, 22 and 27, Township 66 South, Range 29 East CONSIDERATION:
$263,300 STAFF REMARKS: The Coupon Bight/Key Deer CARL project is ranked number 2 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. This project contains 1,827 acres, of which 599.83 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves these agreements, 1,202.118 acres or 66 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 Division of State Lands to utilize approved appraised values that were based on land use regulations in effect as of January 1, 1996, in Monroe County and Big Pine Key, Florida. 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. A waiver of the requirement for surveys of the Ryland, Paul and Bell properties is being requested pursuant to section 18-1.005, F.A.C., because, in the opinion of the Bureau of Survey and Mapping, the cost of the surveys would be prohibitive relative to the expected value of the parcels. While these properties are being recommended for a waiver of survey at this time, should the title commitments reveal a substantive surveying or surveying related issue which impacts the properties, surveys will be provided by the Division of State Lands (DSL) prior to closing. In cooperation with the managing agency, the DSL will acquire any special purpose survey work necessary for the effective management of the properties. Title insurance policies, surveys, environmental site evaluations and, if necessary, environmental site assessments will be provided by the purchaser prior to closing. The Pauls will reimburse purchaser's title insurance costs for their lots. The subtropical
pine forests of rapidly developing Big Pine Key and the islands around
it are the home of the endangered Key deer as well as of many Caribbean
plants found nowhere else in the country. Rich coral reefs and other hardbottom
communities flourish in the shallow water around the islands. The Coupon
Bight/Key Deer CARL project will protect the ************************************************** Item 8, cont. remaining undeveloped land on Big Pine and No Name Keys, without which the Key deer will not survive; protect the water quality of the Coupon Bight Aquatic Preserve and the other waters surrounding the islands; and provide the public an area to appreciate the unique natural world of this part of Florida. These parcels will be managed by the U.S. Fish and Wildlife Service as a part of the Key Deer National Wildlife Refuge. 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 1-33) RECOMMEND APPROVAL *************************************************** Item 9 Margaree B. Elkins Purchase Agreement/BOR/FAMU REQUEST: Consideration of a purchase agreement to acquire 0.67 acre for the benefit of the Florida Board of Regents and Florida Agricultural and Mechanical University from Margaree B. Elkins. COUNTY: Leon APPLICANT: Florida Agricultural and Mechanical University LOCATION: Section 01, Township 01 South, Range 01 West CONSIDERATION: $47,800
APPRAISED BY STAFF REMARKS: This acquisition was negotiated by Florida Agricultural and Mechanical University (FAMU). Funds for this parcel were appropriated by the 1994-1995 Florida Legislature and are still available. Improvements on this property consist of a 830 square-foot, single-story home surrounded by a chain link fence. After closing, and as soon as FAMU obtains all of the necessary permits, the structure and fence will be removed. FAMU plans to use the site for campus expansion. 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 survey
has been provided and an environmental site assessment and title insurance
policy will be provided by FAMU prior to closing. ************************************************** Item 9, cont. This parcel will be managed by FAMU as a part of the 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 9, Pages 1-16) RECOMMEND APPROVAL *************************************************** Item 10 Trust for Public Land Purchase Agreement/Department of Agriculture and Consumer Services, Division of Forestry REQUEST: Consideration of a purchase agreement to acquire 199.5 acres by the Department of Agriculture and Consumer Services, Division of Forestry under the Preservation 2000 program from The Trust for Public Land. COUNTIES: Citrus and Hernando APPLICANT: Department of Agriculture and Consumer Services, Division of Forestry LOCATION: Sections 09, 10 and 15, Township 21 South, Range 19 East CONSIDERATION: $385,000
APPRAISED BY STAFF REMARKS: This acquisition was negotiated by the Department of Agriculture and Consumer Services, Division of Forestry (DOF) under their Preservation 2000 Additions and Inholdings Program. The Trust for Public Land (TPL) currently holds an exclusive option to acquire the parcel. TPL will exercise its option prior to closing with the state. Forty acres
of this property are subject to a 25 percent oil, gas and mineral interest
in favor of Slattery Realty Corporation, with the right of entry and an
easement for ingress and egress and possession and use of the surface
for the purpose of mining, drilling, and exploring. The reservation was
created on December 6, 1966, to run indefinitely. The same forty acres
are also subject to a 25 percent oil, gas and mineral interest in favor
of W.L.B., Inc. The Bureau of Geology has indicated the potential for
oil and gas production in this area is low and that the mineral with the
most potential for development is limestone. The appraiser was aware of
the outstanding interests and took them into consideration when determining
the value of the property. TPL has given written notice that it will acquire
the outstanding interests and convey them with the property at closing.
In the event that the TPL is unable to acquire the interests prior to
closing, Department of Environmental Protection (DEP) staff will close
the transaction subject to the outstanding interests after a final determination
is made by DEP staff and the managing agency that such matters do not
substantially affect the proposed management of the property. ************************************************** Item 10, cont. The property was improved with an abandoned residential structure (which has since been removed) to which the appraisers gave no value. A well, pump, holding tank and fencing were included in the valuation of the property. All mortgages and liens will be satisfied at the time of closing. In the event the commitment for title insurance, to be obtained prior to closing, reveals any other encumbrances which may affect the value of the property or the proposed management of the property, staff will so advise the Board of Trustees prior to closing. A survey, an environmental site assessment and a title insurance policy will be provided by TPL prior to closing. DOF shall reimburse TPL's survey, environmental site assessment and title insurance costs. The property will be managed by DOF as part of the Withlacoochee State Forest. This parcel is adjacent to the Withlacoochee State Forest and will consolidate state forest boundaries in the area, and improve overall management of the forest. This property will be managed for natural resource conservation and outdoor recreation activities under a multiple-use management regime. This acquisition is consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan. (See Attachment 10, Pages 1-32) RECOMMEND APPROVAL *************************************************** Item 11 Interlachen Lakes Estates Delegation of Authority/Survey Waivers/ Department of Agriculture and Consumer Services, Division of Forestry REQUEST: Consideration of (1) a request to delegate authority to the Secretary of the Department of Environmental Protection, or his designee, to approve any agreement to purchase land within Interlachen Lakes Estates platted subdivision, a Department of Agriculture and Consumer Services, Division of Forestry Preservation 2000 program acquisition project surrounded by the Etoniah Creek State Forest, when the price per parcel does not exceed $50,000; and (2) a request for survey waivers. COUNTY: Putnam APPLICANT: Department of Agriculture and Consumer Services, Division of Forestry LOCATION: Section 31, Township 08 South, Range 25 East; and Section 01, Township 09 South, Range 24 East STAFF REMARKS:
This acquisition is being negotiated by the Department of Agriculture
and Consumer Services, Division of Forestry (DOF) under its Preservation
2000 Additions and Inholdings Program. The project consists of Unit 25
(190 unimproved lots ranging from 0.85 acre to 1.54 acres per lot) and
Unit 27 (three unimproved lots ranging from 0.44 acre to 0.85 acre per
lot) in Interlachen Lakes Estates. All of the individual lots are $50,000
or less in value. ************************************************** Item 11, cont. The Board of Trustees is only required to approve an agreement for the acquisition of land under chapter 259, F.S., if it meets one or more of the criteria found in section 259.041(3), F.S. The Board of Trustees has previously delegated authority to the Department of Environmental Protection (DEP) to approve agreements in the Mega/Multiparcel project category when the purchase price does not exceed $50,000. In order to expedite the land acquisition process and provide for efficient processing of these parcels within the Interlachen Lakes Estates project, DEP staff recommends using the Mega/Multiparcel project acquisition process which is specifically geared toward dealing with the challenges of the high volume of smaller ownerships present in this project. A waiver of the requirement for surveys of the properties is being requested pursuant to section 18-1.005, F.A.C., because, in the opinion of the Bureau of Survey and Mapping, the cost of the surveys would be prohibitive relative to the expected value of the parcels. While these properties are being recommended for a waiver of survey at this time, should the title commitments reveal a substantive surveying or surveying related issue which impacts the properties, surveys will be provided by the Division of State Lands (DSL) prior to closing. In cooperation with the managing agency, the DSL will acquire any special purpose survey work necessary for the effective management of the properties. All mortgages and liens will be satisfied at the time of closing. Title insurance policies, environmental site evaluations and, if appropriate in the opinion of staff and managing agency, environmental site assessments for these transactions will be provided by the purchaser unless otherwise provided for in the contract. In the event that staff's due diligence reveals outstanding oil, gas or mineral interests owned by third parties, or other encumbrances or issues which may affect value or proposed management, staff will close the transactions subject to such outstanding interests after determining that such matters do not substantially affect the proposed management of the property and after making any appropriate adjustments in value. The authorization contained in this agenda item is not intended to limit the authority of staff to require the sellers to address title defects pursuant to the terms of the agreements presented today. The property will be managed by the DOF as part of the Etoniah Creek State Forest. The lots are adjacent to the Etoniah Creek State Forest and will consolidate state forest boundaries in the area, provide access, and improve overall management of the forest. The property will be managed for natural resource conservation and outdoor recreation activities under a multiple-use management regime. These acquisitions are consistent with section 187.201(23), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan. (See Attachment 11, Pages 1-9) RECOMMEND APPROVAL *************************************************** Substitute Item 12 Final Order of Denial of Petition for Declaratory Statement/ Seminole County REQUEST: Consideration of adoption of a Final Order of Denial of Petition for Declaratory Statement. COUNTY: Seminole ************************************************** Substitute Item 12, cont. APPLICANT: Seminole County, Petitioner STAFF REMARKS: On September 24, 1998, Seminole County (County) filed a Petition for Declaratory Statement under section 120.565, F.S., requesting that the Board of Trustees answer the following questions: (1) whether "the lands and waters known as Clifton Springs and its associated waterways are lands and/or waters of the State subject to the County's enforcement powers under section 253.05, Florida Statutes. . . "; and (2) whether, in light of the petition, the Board of Trustees "will seek to enforce any of the State's rights under section 253.04, Florida Statutes." Petitioner alleges that under section 253.05, F.S., it has the duty to see that lands owned by the state shall not be the object of damage, trespass, depredation, or unlawful use. (The petition does not allege that any such violations of state law are occurring at Clifton Springs.) Petitioner further alleges that it has an interest in public lands for the use and benefit of the County's citizens and that it owns a fish camp parcel proximate to and potentially influenced by Clifton Springs. It also alleges an undefined "potential threat" to Lake Jesup (a sovereign lake), to the Sulphur Springs Apphaostracon (snail), and to the Great Leather Fern. Rule 28-105.003, F.A.C., requires the Board of Trustees to take action on a Petition for Declaratory Statement only at a duly noticed public meeting. No hearing was timely requested, and none was held. Hearings are discretionary under section 28-105.003, F.A.C. The County's petition should be denied because the Board of Trustees lacks jurisdiction to resolve disputes over title to real property. Original and exclusive jurisdiction to resolve disputes over title to real property lies in the circuit court in the county in which the land lies. Section 26.012(2)(g), F.S., (Supp. 1998); Board of Trustees v. Mobil Oil Corp., 455 So. 2d 412, 415 (Fla. 2d DCA 1984), approved in part, quashed in part sub nom. Coastal Petroleum Co. v. American Cyanamid Co., 492 So. 2d 339 (Fla. 1986), cert. denied 479 U.S. 1065 (1987). Even if the Board of Trustees had jurisdiction over this question, the petition is deficient under section 120.565, F.S., because it does not contain the facts necessary for the Board of Trustees to make such a determination. Specifically, the County does not address the many factors involved in determining navigability in fact at statehood, including whether the water body was used or capable of being used, in its ordinary and natural condition, for waterborne transportation for purposes of trade or travel by means common in the local area. See, Bucki v. Cone, 25 Fla. 1, 6 So. 160 (1889). Further, declaratory statements should not be rendered when there is only the mere possibility of a dispute in the future. The issue cannot be speculative, but must present a "bona fide, actual, present and practical need for a declaration." Okaloosa Island Leaseholders Assoc., Inc., v. Okaloosa Island Authority, 308 So. 2d 120, 122 (Fla. 1st DCA 1975). The petition does not establish that enforcement under either section 253.04 or 253.05, F.S., is presently necessary since it does not allege any violation of state law occurring at Clifton Springs or its associated waterway. For the reasons stated above, the petition should be denied, without leave to amend in light of the inherent lack of jurisdiction in the Board of Trustees to resolve disputes over title to real property. (See Attachment 12, Pages 1-22) RECOMMEND
DEFERRAL ************************************************** Substitute Item 13 City of Palmetto (d/b/a Regatta Pointe Marina) Recommended Consolidated Intent DEFERRED FROM THE DECEMBER 8, 1998 AGENDA REQUEST: Consideration of an application for a modification of a 25-year sovereignty submerged lands lease for an existing city-owned marina to permanently connect a floating sanitary facility, within the existing lease area, to upland utilities. COUNTY: Manatee APPLICANT:
City of Palmetto LOCATION:
Section 23, Township 34 South, Range 17 East, in the Manatee River, Class
III Waters, within the local jurisdiction of the City of Palmetto. STAFF REMARKS: The Board of Trustees authorized a rule amendment on September 14, 1995, to "link" the two processes of regulatory and proprietary reviews and authorizations. The rule became effective October 12, 1995. As a result of this linkage, the recommended Department of Environmental Protection (DEP) regulatory permit decision and the recommendation to the Board of Trustees on the proprietary authorization are contained in one document, the "Consolidated Notice of Denial," which is attached. The attached consolidated intent contains a recommendation for denial of a permit under Part IV of chapter 373, F.S., and a recommendation for denying authorization to use sovereignty submerged lands under chapter 253, F.S., for the activity described therein. This recommendation is provided to the Board of Trustees pursuant to section 373.427(2), F.S. A description of the requested activity is provided in Section I, "Description of the Proposed Activity." The specific basis for recommending denial of the authorization to use sovereignty submerged lands is contained in Section III, "Reasons for Denial." The lessee is proposing to modify an existing 736,164 square foot sovereignty submerged lands lease, for a city-owned marina, by the addition of a 947 square foot floating sanitary facility (permanently connected to an upland sewer line) inside an existing slip. The original lease was approved by the Board of Trustees on December 8, 1981, for 98 slips with specific stipulations regarding the type of marina operations allowed both on uplands and submerged lands. The lease stated that "none of the facilities described in Exhibit "A" shall be constructed upon submerged lands with the exception of the piers, docks, and Dockmaster's office." Exhibit "A" reads as follows: "Description of Pier, Dock Marina Facility and Restaurant to be constructed upon the Subject Lands which description shall include: 1. A prohibition
against inclusion of any boat repair or "in and out" facility;
and, ************************************************** Substitute Item 13, cont. A. Laundry,
Showers and Restrooms for the limited use of individuals renting slips. 4. Restaurant having a minimum of 200 seats. IN NO EVENT SHALL ANY OF THE FACILITIES DESCRIBED HEREIN BE CONSTRUCTED OVER SUBMERGED LANDS EXCEPT THE PIERS, DOCKS AND DOCKMASTER'S OFFICE." On February 13, 1991, an application to add 252 additional slips to the existing marina was received by the then Department of Environmental Regulation. The former Department of Natural Resources (DNR) West Central Florida Field Office received a copy of the application on February 20, 1991. On March 22, 1991, the DNR field office sent the lessee a completeness summary information request for the lease modification. In the completeness summary request, staff asked for proof of authorization from the Board of Trustees for an existing breakwater that appeared in the application drawings for the proposed 252 additional slips. Because the lessee failed to provide the requested information on the completeness summary by the specified deadline of September 22, 1991, the DNR field office sent an inactive letter to the lessee on September 23, 1991, and again on November 20, 1991. The inactive letters provided the lessee an opportunity to reactivate the file by requesting a time extension within 30 days of the receipt of each letter. The November 20, 1991 letter, sent by certified mail, also warned the lessee that if the requested information was not received by the specified timeframe, the DNR would take legal action to prevent the continued use of sovereignty submerged lands without authorization. There is no record in the file of any response by the lessee to any of the requests made in the above mentioned letters. The file's internal routing sheet reflects that the application was deactivated on August 28, 1992, and sent to the DNR investigations unit for follow up inspection. On August 2, 1993, the newly formed DEP issued a wetland resource permit to the City of Palmetto for the addition of 252 slips. Specific Condition Number 1 of the permit advised the permittee regarding the requirement, pursuant to chapter 253.77, F.S., that "no person shall commence any excavation, construction, or other activity involving the use of sovereign or other lands....until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use." DEP records indicate that the additional slips appear to have been constructed, within the boundaries of the original 1981 lease, in late 1994 without approval of the Board of Trustees. In addition,
Condition Number 3 of the original lease states that the Board of Trustees
acknowledged that a designated sublessee may enter into further subleases
of the sovereignty submerged lands described in the lease "so long
as the use of the leased lands shall conform to the provisions of this
lease and the description of the marina facility set forth in Exhibit
"A" or such plans for the marina facility as they may be from
time to time amended with the approval ************************************************** Substitute Item 13, cont. of the Board."
Therefore, the construction of the additional 252 slips, without the approval
of During a lease inspection of the subject facility by DEP's Compliance/Enforcement staff on June 5 and June 17, 1997, it was noted that a 46 foot long by 20.6 foot wide floating sanitary facility, a non-water dependent structure, had been installed without the authorization of the Board of Trustees. The vessel contained seven toilet and shower facilities, a maintenance area, three washing machines, two dryers, two vending machines, a TV, a table and a porch. This facility was connected to the available sewer and electric hook ups at the slip. On June 25, 1997, a warning letter, #97-070DF41SWD, was sent certified mail, by the DEP, to the lessee indicating that there was a potential violation regarding the floating sanitary facility. After a meeting on August 12, 1997, between the DEP and the lessee, it was decided that the DEP would give the City of Palmetto and sublessee, America Holdings Corporation, up to 60 days from August 12, 1997, to remove the floating facility. A subsequent site inspection by staff of Regatta Pointe Marina was conducted and confirmed that the floating facility had been removed. On November 20, 1997, the DEP received an application from the lessee for a permit to moor the same floating sanitary facility. The lessee states in the application that the restroom facilities are needed over the water to accommodate the needs of boaters whose slips are on the outermost reaches of the docking facility. Currently, restrooms, showers and laundry facilities exist on the first floor of the restaurant building located on an island at the end of the main pier. These facilities are for the exclusive use of the boat slip renters and require a key to enter. In addition, a restroom, available for public use, exists inside the dockmaster's office located at the end of a dock extending west about 200 feet from the restrooms, showers and laundry alluded to above. To reach these facilities, slip renters situated in the furthermost corner of the docking facility must walk about 1,700 feet. The lessee believes that the lack of easy access to restrooms at the marina leads to increasing use of individual heads on the boats resulting in the temptation of boaters to discharge waste into nearby waters. Pursuant to the definition of water dependent activity in section 18-21.003(57), F.A.C., the proposed structure constitutes a non-water dependent use, because it is fully enclosed and climatized, permanently connected to the upland utilities, and contains activities that do not require "direct access to the water body or sovereign submerged lands for transportation, recreation, energy production or transmission, or source of water, and where the use of the water or sovereign submerged lands is an integral part of the activity." Pursuant to section 18-21.004(1)(d), F.A.C., "activities on sovereignty lands shall be limited to water dependent activities only unless the board determines that it is in the public interest to allow an exception as determined by a case by case evaluation. Public projects which are primarily intended to provide access to and use of the waterfront may be permitted to contain minor uses which are not water dependent if: 1. located
in areas along seawalls or other nonnatural shorelines; Staff is
of the opinion that the proposed project meets the siting criteria of
number 2, but does not meet the siting criteria of numbers 1 and 3. The
project does not meet number 1, even though a ************************************************** Substitute Item 13, cont. seawall exists at the marina, because the existence of mangroves waterward of the seawall for the entire riparian shoreline renders the shoreline functionally natural. In addition, the proposed project would lie not along the seawall, but approximately 200 feet from it. While staff would agree that the proposed restrooms and showers are incidental uses, staff is of the opinion that the laundromat and vending machines are not incidental and, therefore, contrary to number 3. Staff is also of the opinion that it is not in the public interest to allow an exception to the non-water dependent rule, because cumulative impacts statewide to sovereign resources would be substantial due to increased risk of spills and leakage and unnecessary shading of resources. In addition, cumulatively, more sovereign land would be preempted needlessly from the traditional water dependent uses of the public. Staff's site inspection revealed that sufficient space already exists on the uplands to accommodate restrooms and showers. The applicant has not addressed this alternative upland use of existing space. In addition, the applicant has not addressed the potential cumulative impacts by defining what is a reasonable number of bathroom facilities needed in proportion to the size of an overall marina. As more and more marinas build out on the uplands, the DEP should, if this type of activity is allowed, expect an increasing number of applications not only to construct restroom and laundry facilities but to construct other types of non-water dependent structures over sovereignty submerged lands as well. This trend, if allowed, would be contrary to the public interest which under the Public Trust Doctrine has been weighted in favor of the public's right to use sovereignty submerged lands for the traditional water dependent uses of fishing, swimming, and commercial and recreational navigation. If the Board of Trustees decides to deny the request for proprietary authorization made herein, under sections 373.427(3) and 253.77, F.S., and sections 18-21.00401 and 62-343.075, F.A.C., the regulatory permit must also be denied. RECOMMEND DEFERRAL TO THE FEBRUARY 23, 1999 CABINET MEETING *************************************************** Substitute Item 14 National Marine Manufacturers Association Recommended Consolidated Intent REQUEST: Consideration of an application for renewal and modification of a five-year sovereignty submerged lands lease to (1) change to a five-year special event sovereignty submerged lands lease; and (2) increase the preempted area from 45,563 square feet to 87,478 square feet, more or less, for a temporary annual boat show. COUNTY: Miami-Dade
County APPLICANT:
National Marine Manufacturers Association LOCATION:
Section 31, Township 53 South, Range 42 East, in Biscayne Bay, Class III
waters, year round Slow Speed Manatee Area, within the local jurisdiction
of the City of Miami. ************************************************** Substitute Item 14, cont. CONSIDERATION: $922.42, representing the prorated base fee computed at the base rate of $0.1130 per square foot and including the initial 25 percent surcharge payment for the additional area calculated (41,915 square feet) on the prorated base fee. A certification shall be submitted to the Department of Environmental Protection (DEP) within 30 days from the closing date of the show itemizing the gross rental income generated over sovereignty submerged lands, including the actual income collected from the rental or use of sovereignty submerged lands and any ancillary user charges. If five percent of this amount is greater than the initial payment, the lessee shall submit the difference. Sales tax will be assessed pursuant to 212.031, F.S., if applicable. STAFF REMARKS: The Board of Trustees authorized a rule amendment on September 14, 1995, to "link" the two processes of regulatory and proprietary reviews and authorizations. The rule became effective October 12, 1995. As a result of this linkage, the recommended DEP regulatory permit decision and the recommendation to the Board of Trustees on the proprietary authorization are contained in one document, the "Consolidated Notice of Intent to Issue," which is attached. The attached consolidated intent contains a recommendation for issuance of a permit under Part IV of chapter 373, F.S., and a recommendation for granting authorization to use sovereignty submerged lands under chapters 253 and 258, F.S., for the activity described therein. This recommendation is provided to the Board of Trustees pursuant to section 373.427(2), F.S. A description of the requested activity is provided in Section I, "Description of the Proposed Activity." The specific basis for recommending approval of the authorization to use sovereignty submerged lands is contained in Section III, "Background/Basis for Issuance." Approval by the Board of Trustees is requested only for those aspects of the activity which require authorization to use sovereignty submerged lands. If the Board of Trustees approves the request to use sovereignty submerged lands, and the activity also qualifies for an environmental resource permit, and no challenges are successful, the Consolidated Notice of Intent will be issued and will contain general and specific conditions. In the event the Board of Trustees denies the use of sovereignty submerged lands, whether or not the activity otherwise qualifies for a wetland resource permit, the DEP will issue a "Consolidated Notice of Denial" for both the wetland resource permit and the authorization to use sovereignty submerged lands. The applicant is proposing to construct a temporary commercial docking facility to be used in conjunction with the National Marine Manufacturers Association Miami International Boat Show. The temporary construction takes place immediately waterward of an area under lease to the Miramar Marina Corporation (Miramar), Board of Trustees' Lease No. 130009916, which is 354,294 square feet. A portion of this special event boat show will take place within the entire Miramar facilities. Miramar has allowed this boat show to utilize their area in the past. The Miramar lease is due to expire on February 7, 1999, and is in the process of being renewed. Miramar is required to report the gross rental income collected from the special event to the Division of State Lands as part of the annual certification required for their lease, pursuant to section 18-21.011(1)(d)3, F.A.C. The proposed
temporary and existing docks will be used as a centralized sales center
for public display of vessels by various brokers. On November 23, 1993,
the Board of Trustees approved a five-year, 45-day, sovereignty submerged
lands lease for 45,563 square feet. The applicant was advised by staff
of the DEP not to renew its current lease, which has since expired on
February 27, 1998, and wait on rule amendments to chapter 18-21, F.A.C.,
regarding special events. Therefore, on October 1, 1998, the applicant
applied to the DEP for a wetland resource permit renewal and for a new
Class IV Special Event Lease. However, the DEP has decided to process
this application as a lease renewal and modification to a five-year special
event lease, since there was an existing lease that has expired. The applicant
again ************************************************** Substitute Item 14, cont. proposes to construct the facility during the first week of the proposed lease term, to run the sales operation for seven days, and to dismantle the facility during the following week. The exhibitors will lease mooring space from the applicant. There will be approximately 225 total vessels displayed at the boat show with approximately 55 vessels to be moored in this particular lease area and the remaining 170 vessels moored within the Miramar facility. Test drives will take place in the morning on show dates, with manatee information packages distributed to anyone who test drives a vessel. The proposed project is located in the Biscayne Bay - Card Sound Aquatic Preserve. In accordance with section 258.397, F.S., and section 18-18.006(3)(b), F.A.C., the proposed project should be approved only if the Board of Trustees determines that the applicant has demonstrated extreme hardship and that the project is in the public interest. The Board of Trustees approved this boat show on November 23, 1993, in this same location and found it met extreme hardship. Staff finds that this project meets the extreme hardship test for the following reasons: (1) the Miramar is the only existing commercial docking facility in proximity to the Intracoastal Waterway and the Atlantic Ocean with the capacity to accommodate the size and number of exhibit vessels for the show; (2) it is not feasible to show the boats out of the water since they range in size up to 80 feet in length; and (3) the show is conducted at an existing facility which offers the ability to support the show and avoids the construction of a new temporary facility. The maximum time that the boats are in the water is going to be 12 days and offers little potential for environmental harm. Staff also advised the applicant not to renew the current expiring lease due to pending rule changes regarding special events and as a result of the delay, to cancel the 1999 show at this late date, after the extensive advertising already done by the applicant, would create a hardship on the applicant. Staff is of the opinion that the proposed project is in the public interest for the following reasons: (1) the applicant will provide displays to educate the general public about environmental issues, such as the importance of seagrasses, the use of marked channels to avoid harming shallow submerged land resources, and the importance of safe boating; (2) the applicant's show will have a positive economic impact on the city; (3) the applicant will invite environmental agencies to operate informational booths during the show to facilitate public education; (4) the applicant will conduct various public service seminars on topics such as boating safety and boat licensing during the show; and (5) the applicant will provide local schools exhibit space at the show for fund-raising activities for school projects. Item (1) has been included as a specific condition in the wetland resource permit. According to the Division of Marine Resources, the proposed project would not significantly affect the endangered manatee so long as the applicant (1) complies with the DEP's standard manatee construction conditions; (2) installs and maintains informational displays; (3) distribute and maintain copies of the "Guide for Boating, Diving and Snorkeling" and the Dade County "Manatee Protection Zone Map" at the Miramar Marina Show Office, to individual vessel operators and exhibitors when they first arrive for the show; (4) distributes information packages to anyone test driving a vessel; (5) maintains a log of everyone test driving a vessel; (6) requests that the off-duty Florida Marine Patrol officer encourages everyone to observe the established speed restrictions and patrols the demonstration ride areas and forwards any warnings and citations to the Bureau of Protected Species Management within 30 days after the event; and (7) agrees that if boat traffic resulting from the event results in an unsafe situation for manatees, the approval of future events shall be revoked. These items have been included as specific conditions in the wetland resource permit. Noticing
of property owners within a 500-foot radius of the project is currently
being done. The applicant also was required to publish notice of receipt
of application by DEP. The notice of receipt of application has been published,
the DEP has received the certified copy of the advertisement and no objections
have been received to date. ************************************************** Substitute Item 14, cont. The structures do extend into the 25-foot setback and cross over riparian lines; therefore, a letter of no objection was obtained from the Miami Women's Club (riparian owner to the north) and the DEP is waiting on the letters of no objection from Miramar and Dade County Public Works Department. A local government comprehensive plan has been adopted for this area pursuant to section 163.3167, F.S. The Department of Community Affairs determined that the plan is in compliance. A local permit has been received for the proposed actions which has therefore been determined to be consistent with the adopted plan. (See Attachment 14, Pages 1-31) RECOMMEND APPROVAL SUBJECT TO PAYMENT OF $922.42 *************************************************** Substitute Item 15 SunTrust Bank, Southwest Florida (d/b/a Orange Harbor Mobile Home Park) Lease Modification/Survey Waiver REQUEST: Consideration of an application for (1) a modification of an existing five?year sovereignty submerged lands lease to increase the preempted area from 26,116 square feet to 40,922 square feet, more or less, for an existing commercial docking facility; and (2) a waiver of the survey requirement. COUNTY: Lee APPLICANT:
SunTrust Bank, Southwest Florida, a Florida corporation, as Trustee LOCATION:
Sections 34 and 35, Township 43 South, Range 25 East, in the Caloosahatchee
River and the Orange River, Class III waters CONSIDERATION: $5,042.46 as the initial lease fee computed at the base rate of $0.1130 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. The lease fee may be adjusted based on six percent of the annual rental value pursuant to section 18-21.011, F.A.C. If the staff recommendation to increase the lease area is approved, fees will increase to approximately $24,218, and will be verified upon receipt of an acceptable survey. STAFF REMARKS: The lessee is proposing to modify an existing 42?slip commercial docking facility by: (1) increasing the preempted area from 26,116 square feet to 40,922 square feet; and (2) increasing the number of wetslips 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 ************************************************** Substitute Item 15, cont. 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 nonwaterfront 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)(a), F.A.C., another rule section, 18-21.005(1)(a)2, 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 wetslips 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 ************************************************** Substitute Item 15, cont. of these existing structures are within the existing lease. The lessee's proposed lease modification will convert 21 existing fishing piers to docks adjacent to individual mobile home lots by allowing mooring at the structures, increasing the lease area to 40,922 square feet. 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 results 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 are anticipated to occur frequently throughout the term of the modified lease. Minimizing the lease area raises three concerns. First, the previous and anticipated future frequent lease modifications will require significant staff time and Board of Trustees' reviews. Second, it may not adequately include 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 submerged land 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, staff recommends that the lease be modified to include the areas between those docks whose proximity to one another effectively preempt public use. Staff estimates that this recommendation would add approximately 169,695 square feet to the lease area, resulting in an additional annual lease fee of $19,176. SunTrust Bank has informed staff that it agrees with the staff recommendation; the Park residents may not agree because of the increased cost. 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. ************************************************** Substitute Item 15, cont. 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. 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 this agenda item for their review. This 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. 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. 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 in the existing lease, and will also be addressed by a special lease condition 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 15, Pages 1-70) RECOMMEND
WITHDRAWAL |
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