Chapter 2011-142, Laws of Florida, transferred Florida Communities Trust (“FCT”) from the Department of Community Affairs to the Department of Environmental Protection (“DEP”). As a result of that transfer, FCT rules were transferred to Chapter 62. ...

 

DEPARTMENT OF ENVIRONMENTAL PROTECTION

RULE NOS.:RULE TITLES:
62-821.002Definitions
62-821.004 Appraisal Procedures, Appraisal Report Requirements and Determination of Maximum Approved Purchase Price
62-821.006Negotiation of Offers and Counteroffers
62-821.009Certified Survey
62-821.010Examination for Hazardous Materials Contamination
PURPOSE AND EFFECT: Chapter 2011-142, Laws of Florida, transferred Florida Communities Trust (“FCT”) from the Department of Community Affairs to the Department of Environmental Protection (“DEP”). As a result of that transfer, FCT rules were transferred to Chapter 62. Now, FCT is engaging in rulemaking for its terms and procedures to conform to DEP terms and procedures, specifically those related to appraisals and environmental site assessments. These revisions are necessary to achieve a more consistent, effective, and streamlined approach to implement the FCT program.
SUMMARY: The proposed rule amendments will amend terms and definitions to conform to current DEP terms and definitions. Specifically, definitions and procedures for appraisal related items will refer to Rule Chapter 18-1, which mandates how DEP handles appraisal services and reviews.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.
The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The FCT rules are provided free of charge to the public and applicants following the FCT rules would not incur additional economic impact. Therefore, because the goal of the proposed amendments is to streamline FCT procedures, the Agency determined the proposed amendments would not impost an adverse economic impact or regulatory increases.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
RULEMAKING AUTHORITY: 380.507(11), 380.5105(2) FS.
LAW IMPLEMENTED: 259.105, 380.501-.515 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Kristen L. Coons, State of Florida Department of Environmental Protection, 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000, telephone [phone], email: [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

62-821.002 Definitions.

The definitions set forth in Rule 62-820.002, F.A.C., shall apply as used in this rule chapter and are incorporated herein by reference. Additionally, the following definitions shall apply as used in this rule chapter:

(1) “Appraisal” or “Appraisal Services” has the same meaning as provided in Rule 18-1.002, F.A.C. means the services provided by Florida certified or licensed Appraisers pursuant to Section 475.611(1), F.S.

(2) No change.

(3) “Appraiser” means any person who is certified or licensed by the State pursuant to Chapter 475, Part II, F.S., and whose certification or license is current, valid and active.

(3)(4) “Approved Appraisal” has the same meaning as provided in Rule 18-1.002, F.A.C. means an Appraisal that has been reviewed and approved by the Trust for use in determining the Maximum Approved Purchase Price.

(5) through (9) renumbered (4) through (8) No change.

(9)(10) “Market Value” has the same meaning as provided in Rule 18-1.002, F.A.C. , as defined in the Uniform Standards of Professional Appraisal Practice (as promulgated by the Appraisal Standards Board of The Appraisal Foundation), means the most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and assuming that the price is not affected by undue stimulus.

(11) “Maximum Approved Purchase Price” means the maximum purchase price that the Trust can participate in as determined by Appraisals performed on a Project Site that have been reviewed and approved by the Trust.

(12) through (16) renumbered (10) through (14) No change.

(15)(17) “Uniform Standards of Professional Appraisal Practice” has the same meaning as provided in Rule 18-1.002, F.A.C. means the “Uniform Title Standards” in effect as of the effective date of this rule approved and adopted by the Appraisals Standards Board of The Appraisal Foundation.

Rulemaking Authority 380.507(11), 380.5105(2) FS. Law Implemented 259.105, 380.501-.515 FS. History–New 11-25-08, Formerly 9K-10.002, Amended________.

 

62-821.004 Appraisal Procedures. , Appraisal Report Requirements and Determination of Maximum Approved Purchase Price.

(1) Appraisal services shall be obtained through the Department in accordance with the procedures and requirements provided in Chapter 18-1, F.A.C. The Trust shall contract with the Approved Appraiser(s) according to contract requirements of the Trust.

(2) Techniques and methods used by the Appraiser shall substantially conform to the Uniform Standards of Professional Appraisal Practice (USPAP), as defined in Chapter 475, Part II, F.S., as well as Trust appraisal instructions and format.

(3) The Trust shall provide to the Appraiser all pertinent title information developed in the title report, a specification of the rights to be acquired, a list of items, if any, considered to be noncompensable, required appraisal forms or formats, and the most recent survey, if available.

(4) The Trust shall obtain at least one Appraisal by an Approved Appraiser for each ownership in a Project Site estimated to be valued less than $500,000. For each ownership in a Project Site estimated to be valued at or greater than $500,000, the Trust shall obtain at least two Appraisals by Approved Appraisers.

(5) Determination of Maximum Approved Purchase Price.

(a) For purposes of calculating the Trust and the Recipient shares of the purchase price paid for real property, a Maximum Approved Purchase Price shall be determined. The Grant Contract will describe financial participation by the Trust and the Recipient on a percentage basis. The Trust considers that the maximum purchase price in which it will participate shall be the Maximum Approved Purchase Price or purchase price, whichever is less. If the Recipient decides to pay a purchase price higher than the Maximum Approved Purchase Price, the Recipient shall pay all the purchase price amount over the Maximum Approved Purchase Price, in addition to the Match percentage share of the Maximum Approved Purchase Price.

(b) Appraisals shall be reviewed by a review Appraiser who is employed by or under contract to the Trust. The review Appraiser must certify to the Trust that the Appraisals have been conducted substantially in accordance with this rule chapter and with correct Appraisal standards and methods, and must certify the appraised value(s) of the subject real property. This certified value shall also be referred to as “the Maximum Approved Purchase Price.”

(c) The Maximum Approved Purchase Price shall be the value indicated in a single reviewed and approved Appraisal if only one Appraisal is required. If two Appraisals are obtained and approved when only one is required by this rule chapter, the Maximum Approved Purchase Price shall be the higher of the two values indicated in the Appraisals.

(d) If two Appraisals are required and their values do not differ significantly, the Maximum Approved Purchase Price shall be the higher value indicated in the two Appraisals. The two Appraisals shall be considered to differ significantly if the higher of the two values exceeds 120 percent of the lower value.

(e) When two Appraisals required under subsection (4) above differ significantly, the following steps shall be taken:

1. The review Appraiser shall request that the two Appraisers review the differences in their respective reports to attempt to rectify their value conclusions so that the two value conclusions are not significantly different;

2. A third Appraisal shall be obtained if the two Appraisals differ significantly and cannot be rectified as in the above paragraph unless a decision is made by the Trust to negotiate an Acquisition price of no more than 120 percent of the lower of the two reviewed and approved Appraisals; and

3. If a third Appraisal is obtained and reviewed and approved, the Maximum Approved Purchase Price shall be the value contained in the higher of the two closest Appraisals, so long as the two closest Appraisals do not differ significantly. If the two closest Appraisals differ significantly, 120 percent of the lower of the two Appraisals shall be the Maximum Approved Purchase Price.

(6) The Trust shall compare the Maximum Approved Purchase Price with the cost to purchase the land as estimated in the Application. If that estimated cost is greater than the Maximum Approved Purchase Price, the Trust shall reduce the amount of the Award by a letter of notice to the Recipient.

Rulemaking Authority 380.507(11), 380.5105(2) FS. Law Implemented 259.105, 380.501-.515 FS. History–New 11-25-08, Formerly 9K-10.004, Amended________.

 

62-821.006 Negotiation of Offers and Counteroffers.

(1) It shall be the goal of the Trust and the Recipient that the Acquisition of the real property be negotiated at the best price and terms that can be negotiated in the interest of the project’s public purpose, with preference given to a purchase price at or below the maximum amount Maximum Approved Purchase Price. The objective of all purchase negotiations shall be to obtain, at the lowest possible price, the appropriate interest in real property free of encumbrances, conditions, restrictions and reservations that would impede the purposes or management of the Project Site. In the course of negotiations the Trust may discuss the advantages of a Donation and bargain sale. If the real property to be acquired is not already surveyed and the acreage of the site is not known, the Owner shall be advised of the benefits of obtaining a safe upland line survey, as opposed to a mean high water or ordinary high water survey, for calculating the acreage of the site.

(2) through (7) No change.

Rulemaking Authority 380.507(11), 380.5105(2) FS. Law Implemented 259.105, 380.501-.515 FS. History–New 11-25-08, Formerly 9K-10.006, Amended________.

 

62-821.009 Certified Survey.

(1) At least 30 days prior to closing, a Certified Survey must be submitted to the Trust for final approval to rectify acreage and title issues against the title commitment, the negotiated Purchase Agreement and the Appraisal(s) used to determine the maximum amount Maximum Approved Purchase Price.

(2) through (4) No change.

Rulemaking Authority 380.507(11), 380.5105(2) FS. Law Implemented 259.105, 380.501-.515 FS. History–New 11-25-08, Formerly 9K-10.009, Amended________.

 

62-821.010 Examination for Hazardous Materials Contamination.

(1) through (4) No change.

(5) In the event an adverse environmental assessment is reported on a site, the Trust will assess may confer with the appropriate staff of the Department for assistance in assessing the risk to the State. Because the Board of Trustees will have an executory interest in the Project Site, the Trust shall have the right to refuse to deliver funds for closing if the Trust and the Department determines determine the hazardous materials contamination presents a liability to the State that outweighs the benefits to be derived from the Acquisition of the Project Site. If it is determined by the Trust and the Department that a delay in, or termination of the Acquisition is necessary, the Trust shall immediately notify the Recipient. The Trust shall immediately notify all other parties to the Purchase Agreement of the action taken and the basis for the action.

Rulemaking Authority 380.507(11), 380.5105(2) FS. Law Implemented 259.105, 380.501-.515 FS. History–New 11-25-08, Formerly 9K-10.010, Amended________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Susan Grandin, Director, Division of State Lands, State of Florida Department of Environmental Protection
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Herschel T. Vinyard Jr., Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: January 5, 2013
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: January 28, 2013, Vol. 39/18