The purpose of this rulemaking is to perform clean-up of the definitions, update land and conservation management plans in accordance with Section 253.034(5), F.S., to provide for business plans in accordance with Section 253.034(13), F.S., and to ...

 

BOARD OF TRUSTEES OF INTERNAL IMPROVEMENT TRUST FUND

RULE NOS.:RULE TITLES:

18-2.017Definitions

18-2.018Policies, Standards, and Criteria for Evaluating, Approving or Denying Requests to Use Uplands

18-2.019Procedures to Obtain Authorization

18-2.020Payments and Consideration

PURPOSE AND EFFECT: The purpose of this rulemaking is to perform clean-up of the definitions, update land and conservation management plans in accordance with Section 253.034(5), F.S., to provide for business plans in accordance with Section 253.034(13), F.S., and to update competitive bid and exception procedures in accordance with Section 253.034(6)(h), F.S.

SUMMARY: Update definitions to reflect changes in body of the rule and to eliminate unnecessary definitions; set forth when equitable compensation may be waived when leasing to a nonprofit corporation; update Land Use Plan and Management Plan requirements to better tie to statute and remove unnecessary requirements for those plans; allow counties and municipalities to apply for an exchange of state-owned uplands for privately-owned property; remove outdated references to Development of Regional Impact (DRI) and Preliminary Development Agreement (PDA) reviews; update application requirements for state agencies, state universities, and Florida College System institutions to require a business plan to be submitted to the Board of Trustees when applying to use uplands as required by changes in Chapter 2013-152, Laws of Florida; update rule to require appraisals when selling surplus land estimated to be valued over $500,000 as required by changes in Chapter 2013-152, Laws of Florida; update when parcels must be initially offered for sale by competitive bid; update the determination of value for private easements; clarify that there are no fees for public easements; update earnest money deposit requirements for bids.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that the proposed rules 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 for proposed rules 18-2.017, .018, or .020, F.A.C. However, a SERC has been prepared by the Agency for proposed rule 18-2.019. In summary, costs associated with this proposed rule are not estimated to be more than $10,000 total over the next 5 years.

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: Ratification is not required on any of the proposed rules because the changes are largely related to providing clarification and streamlining existing processes such that there is no adverse impact or regulatory costs of the rule that exceed any of the criteria established in Section 120.541(2)(a), F.S., based on a review conducted in association with the “Proposed Rule: Is a SERC Required?” checklist. For the changes requiring the submittal of a business plan when seeking surplus property as set forth in 18-2.019, F.A.C, the Department completed a SERC to evaluate any adverse impacts or regulatory costs and due to the anticipated infrequency that plans will be required and small cost associated with the plans when they are completed, there is no adverse impact or regulatory costs of the rule that exceeds any of the criteria established in Section 120.541(2)(a), F.S.

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: 253.03, 253.034, 259.035 FS.

LAW IMPLEMENTED: 253.001, 253.02, 253.03, 253.034, 253.04, 253.111, 253.115, 253.42-.44, 253.47, 253.51-.61, 253.571, 253.62, 253.77, 253.82, 259.035, 270.07, 270.08, 270.11, 259.035, 259.101, 259.105, 267.021 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: Elaine Mann, Division of State Lands, Department of Environmental Protection, [phone], [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

18-2.017 Definitions.

When used in this rule chapter, the following shall mean:

(1) through (4) No change. 

(5) “Approved appraisal” has the same meaning as provided in Rule 18-1.002, F.A.C.

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

(9)(10) “Board” means the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida or its designated agents.

(11) through (13) renumbered (10) through (12)  No change.

(14) “Convey” means to transfer title or interest in land from one party to another for consideration.

(15) “Conveyance” means an instrument or transfer of title of land from one party to another.

(16) “Cooperating agency” means a lessee which, as party to a multiple state agency lease, has designated management responsibilities to be carried out under the guidance of the lead agency so that each party utilizes its particular expertise in order to achieve the management goal.

(17) through (25) renumbered (13) through (21)  No change.

(26) “Fine” means a monetary assessment imposed, pursuant to Section 253.04, F.S., on a person or the agent of a person who willingly damages state lands, willfully damages or removes products of state lands in violation of state or federal law, or knowingly refuses to comply with or willfully violates Chapter 253, F.S., or the rules of the Division.

(27) renumbered (22) No change.

(23)(28) “Historic resources” ­is as defined in Section 267.021, F.S. means any prehistoric or historic district, site, building, object, or other real or personal property of historical, architectural, or archaeological value, or any part thereof, relating to the history, government, or culture of the state.

(29) renumbered (24) No change. 

(30) “Lead agency” means that agency designated by the Board as being responsible for coordinating the development of a management plan for a cooperative management area with input from cooperating agencies pursuant to the terms of the management agreement/multiple agency lease.

(31) renumbered (25) No change.

(26)(32) “Letters Letter of authorization” means a nonpossessory form of authorization that allows the applicant the right to erect specific structures or conduct specific activities on uplands.

(27)(33) “Management agreement/multiple agency lease” means the legal instrument by which the management purpose(s) of a property and the responsibilities of each managing party are delineated in a cooperative management situation. It is a contractual agreement between the Board and one or more agencies which does not create an interest in real property but merely authorizes conduct of certain management activities on lands owned by the Board.

(34) renumbered (28) No change.

(35) “Mean high water line” means the intersection of the tidal plane of mean high water with the shore. This is the boundary between sovereignty submerged land and the adjacent upland along tidal waterbodies.

(36) through (39) renumbered (29) through (32)  No change.

(40) “Ordinary high water line” means the boundary between uplands and submerged lands beneath non-tidal navigable natural water bodies.

(41) renumbered (33)  No change.

(34)(42) “Plan” means a document management plan as required by Section 253.034, F.S.

(a) “Business Plan” means a plan submitted by a state agency, state university, or Florida College System institution to the Board regarding the intended use of a building or parcel of land before approval of a lease, as required by Section 253.034(13), F.S.

(b) “Land Use Plan” means a plan submitted by a manager of nonconservation lands to the Division as required by Section 253.034 F.S.

(c) “Management Plan” means a plan submitted by a manager of conservation lands to the Division as required by Section 253.034(5), F.S.

(43) renumbered (35) No change. 

(44) “Preliminary Development Agreement (PDA)” means a written agreement between the developer and the Department of Community Affairs to allow the developer to proceed with a limited amount of the total proposed development, subject to all other governmental approvals and solely at the developer’s own risk. This written agreement is entered into prior to issuance of a final development order which grants, denies or denies with conditions an application for a development permit.

(45) through (51) renumbered (36) through (42) No change.

(52) “Rule” means a rule adopted pursuant to Chapter 120, F.S.

(53) “Satisfactory evidence of title” means a current title insurance policy or current title insurance binder or commitment, not more than 6 months old, issued by a title insurance company authorized to do business in the State of Florida or an opinion of title prepared by a member of the Florida Bar, covering title to the lands involved and indicating any mineral or other interest.

(54) renumbered (43) No change.

(55) “Sole management” means management by one agency on a single or multiple use management tract.

(56) renumbered (44) No change.

(45)(57) “State lands land” as used in this rule means land to which the title is vested in the Board.

(58) through (64) renumbered (46) through (52) No change.

(65) “USPAP” has the same meaning as provided in Rule 18-1.002, F.A.C.

(66) renumbered (53) No change.

Rulemaking Authority 253.03, 253.034, 259.035 FS. Law Implemented 253.03, 253.034, 259.035, 259.101, 259.105, 267.021 FS. History–New 6-4-96, Amended 5-15-08, 5-29-08, _________.

 

18-2.018 Policies, Standards, and Criteria for Evaluating, Approving or Denying Requests to Use Uplands.

Applications to use Trustees-owned uplands and decisions to approve or reject such applications will be based on all of the following:

(1) No change. 

(2) General Policies.

(a) through (h) No change.

(i) Equitable compensation shall be required when the use of uplands will generate income or revenue for a private user or will limit or preempt use by the general public. The Trustees shall award authorization for such uses on the basis of competitive bidding rather than negotiation unless otherwise provided herein or determined by the Trustees to be in the public interest pursuant to the results of an evaluation of the impacts, both direct and indirect, which may occur as a result of the proposed use. Relevant factors to be considered in the evaluation shall include those specified in subsection 18-2.018(1), F.A.C. The Trustees shall make its final determination at a regularly scheduled meeting of the Governor and Cabinet. The Trustees reserve the right to reject any and all bids. Equitable compensation under this paragraph shall be waived in instances where all of the following conditions are met:

1. The managing entity proposes subleasing property to a duly-registered, not-for-profit corporation,

2. The sublease is directly related to the purpose of the primary lease, and

3. The lessee submits to the Board a certification that the first two conditions are met.

(j) The successful bidder shall pay all costs of legal advertisement, title work, all costs associated with estimating value, taxes or assessments for any activity requiring such items.

(k) through (p) No change.

(3) Standards and Criteria. The following standards and criteria must be met for approval of the following described authorizations to use state-owned uplands.

(a) Leases and Subleases.

1. Unless determined by the Trustees to be in the public interest, the term of any lease or sublease shall not exceed a maximum term of fifty years. Specific terms are as follows:

a. No change.

b. The standard lease term for agricultural or grazing leases shall not exceed ten be six years.

c. No change.

2. through 4. No change.

5. Lessees and sublessees shall be responsible for preparing either a management plan or a land use plan an operational report as follows:

a. All lessees of conservation lands shall prepare and submit to the Division parcel-specific management plans in accordance with Section 253.034(5), F.S., and Rule 18-2.021, F.A.C. No physical alteration of the leased premises shall occur unless such activity has been authorized via an approved management plan.

b. All lessees of nonconservation lands shall prepare and submit to the Division parcel-specific land use plans in accordance with Section 253.034(5), F.S. No physical alteration of the leased premises shall occur unless such activity has been authorized via an approved land use plan.

a. All state agency lessees and sublessees, through the sublessor, shall prepare and submit to the division parcel-specific management plans in accordance with Rule 18-2.021, F.A.C. No physical alteration of the leased premises shall occur unless such activity has been authorized via an approved management plan.

b. All other lessees except agriculture, grazing and oil and gas lessees shall prepare a site-specific operational report which shall be prepared and submitted to the division by lessee within a year of lease execution or other dates as designated in the lease. The operational report shall include the following:

(I) The common name of the property, if any;

(II) A map showing the approximate location and boundaries of the property, the location of any structures or improvements to the property, and a statement as to whether the property is adjacent to an aquatic preserve or a designated area of critical state concern or an area under study for such designation;

(III) The legal description and acreage of the property;

(IV) The land acquisition program, if any, under which the property was acquired;

(V) The designated single or multiple use management for the property, including use by other managing entities;

(VI) The approximate location and description of known renewable and non-renewable resources of the property including archaeological and historical resources; fish and wildlife resources, both game and non-game; mineral resources (such as oil, gas, phosphate, etc.); and natural resources (such as virgin timber stands, scenic vistas, rivers, streams, etc.);

(VII) A description of past and existing uses, including unauthorized uses of the property;

(VIII) A description of alternative or multiple uses of the property considered by the lessee and a statement detailing why such uses were not adopted;

(IX) An assessment of the impact of planned uses on the renewable and non-renewable resources of the property and a description of the specific actions that will be taken to protect, enhance and conserve those resources and to compensate/mitigate the damage that is caused by such use;

(X) A description of management needs and problems on the property;

(XI) A description of the management responsibilities of each entity and how such responsibilities will be coordinated;

(XII) A statement concerning the extent of public involvement and local government participation, if any, in the development of the plan; and

(XIII) A statement of gross income generated, net income and expenses.

c. through d. No change.

6. Additional specific criteria for subleases are as follows:

a. Subleases shall be in compliance with the lease and management plan or land use plan operational report for the master lease.

b. No change.

7. through 8. No change.

(b) Disposal of Trustees-owned Uplands.

1. No change.

2. Parcels to be conveyed pursuant to this subsection shall be noticed in accordance with Rule Chapter 18-2.019, F.A.C., and applicable law.

3. Conveyance of property pursuant to this section shall be in accordance with the following requirements:

a. No change.

b. The cost of title insurance, documentary stamp tax, recording fees, any property taxes due, abstract, title certificate, survey, all costs associated with estimating value, legal advertisement and purchaser’s legal fees shall be the responsibility of the purchaser.

c. through d. No change.

4. A state agency, any lessee of state-owned lands that is a county or municipality, or the Division may apply for an exchange of state-owned uplands for a parcel of privately-owned uplands by certifying:

a. That it needs a parcel of private land for a particular use; and

b. That it manages uplands vested in the Trustees which it wishes to use for a state agency exchange. If no uplands managed by the state agency can be identified as excess to its management needs, then uplands which have been selected through the land disposal process may be used instead.

5. through 6. No change.

(c) through (f) No change.

Rulemaking Authority 253.03(7)(a), 253.034 FS. Law Implemented 253.001, 253.02, 253.03, 253.034, 253.04, 253.111, 253.115, 253.42-.44, 253.47, 253.51-.61, 253.62, 253.77, 253.82, 259.035, 270.07, 270.08, 270.11 FS. History–New 6-4-96, Amended 4-17-02, 5-15-08, 5-29-08, __________.

 

18-2.019 Procedures to Obtain Authorization.

(1) No change.

(2)Applications to use uplands which are subject to the DRI or PDA review process shall be processed only after the DRI or PDA application review process is complete and the DRI or PDA has been authorized.

(3) through (4) renumbered (2) and (3) No change.

(5) State agency notice

(a) Before a parcel of land is offered for lease, sublease or sale to a local or federal unit of government or a private party, it shall first be offered to state agencies.

(b) This provision shall be waived in instances where:

1. A managing entity proposes subleasing property and that sublease is directly related to the purpose of the primary lease, as certified by the sublessor;

2. Management of a property has been determined through the selection process for a state acquisition list;

3. The proposed lease or sale is for subsurface rights or interests;

4. The Trustees determine that conveyance of the parcel by sale, gift or exchange provides a greater benefit to the public than retention in state ownership; or

5. The land is being exchanged pursuant to Chapter 18-2, F.A.C.

(6) through (7) renumbered (4) through (5) No change.

(6) Before a building or parcel of land is offered for lease or sale to a local or federal unit of government or a private party, it shall first be offered for lease to state agencies, state universities, and Florida College System institutions, with priority consideration given to state universities and Florida College System institutions.

(7) In lieu of the application procedure for leases in this rule, before a surplus parcel or building owned by the Board is leased to a state university, Florida College System institution, or state agency, Section 253.034(13), F.S., requires the applicant to submit a business plan to the Board for its review and approval. State universities, Florida College System institutions, and state agencies must follow the following application procedures:

(a) A state university, Florida College System institution, or state agency shall submit written notice of intention to submit a business plan and desire to apply for a lease after the offer for lease is published and prior to submission of the business plan. Failure to submit a notice of intention to submit a business plan shall be considered to be conclusive that there is no interest in leasing the parcel or building. Within the time period set forth in Section 253.034(13), F.S., the state agency, Florida College System institution, or state agency must submit its business plan.

(b) If the applicant chooses to combine elements in its business plan, it shall clearly indicate where in the business plan all statutory requirements of Section 253.034(13), F.S., and the requirements of this rule are met. The plan shall contain an explanation of such combinations.

(c) A business plan from a state agency shall consist of:

1. A description of the proposed use, including future use, of the building or parcel.

2. A timeline for the renovation or construction of any capital improvements.

3. A statement certifying that the plan submitted to the Board for its review and approval has been approved by the agency head.

4. A description of how the proposed use is of public benefit to the state.

5. All data, studies, and analyses that demonstrate the building or parcel meets an existing need of the applicant that cannot otherwise be met.

6. A capital improvement plan that includes, but is not limited to, projected costs for any building located on or proposed to be located on the parcel.

7. The estimated cost of renovations to any building located on the parcel.

(d) A business plan from a state university or Florida College System institution shall consist of:

1. A description of the proposed use, including future use, of the building or parcel, and a statement of how such future use is consistent with its campus master plan.

2. A timeline for the renovation or construction of any capital improvements.

3. A statement certifying that the plan submitted to the Board for its review and approval has been approved by the Trustees of the state university or Florida College System institution.

4. A description of how the proposed use is of public benefit to the state.

RulemakingAuthority 253.03, 253.034 FS. Law Implemented 253.03, 253.034, 253.115, 253.42, 253.52, 253.77 FS. History–New 6-4-96, Amended _________.

 

18-2.020 Payments and Consideration.

(1) No change.

(2) Disposal.

(a) For parcels with an estimated value in excess of $500,000 $100,000, the sale price for the disposal of uplands shall take into consideration appraisal services as provided in Chapter 18-1, F.A.C.

(b) Parcels with an estimated value over $500,000 must be initially offered for sale by competitive bid. Any parcels with an estimated value of over $500,000 that were unsuccessfully offered for sale by competitive bid, and parcels with an estimated value of $500,000 or less, may be sold by any reasonable means, including procuring real estate services, open or exclusive listings, competitive bid, auction, negotiated direct sales, or other appropriate services, to facilitate the sale. Disposal of surplus land shall be competitively bid except that parcels with a market value of $100,000 or less may be sold by any reasonable means, including open or exclusive listing with real estate sales services, competitive bid, auction, and negotiated direct sales.  In no case shall a real estate brokerage fee or auction fee exceed 10% of the purchase price.

(c) through (d) No change.

(3) No change.

(4) Easements.

(a) A one-time fee for private easements of greater than one-quarter acre in size shall be assessed and based upon an appraisal, a comparable sales analysis, or a broker’s opinion of value. Notwithstanding, private easements shall be assessed and based upon an appraisal if the Division, using best professional judgment, finds easement has an estimated value greater than $10,000 or if the Division, using best professional judgment, is unable to determine an initial estimated value.

(b)  A one-time fee for private easements of one-quarter acre or less in size shall be negotiated by the Division if value information other than an appraisal is available. For the purposes of this rule, broker’s opinion of value and comparable sales analysis are valuation techniques, which are not appraisals, that are performed under Chapter 475, Part 1, F.S., comparing available market data such as sales, listings, and contracts to the property being analyzed.

(c) No change.

(d) Public easements shall not be subject to an easement fee.

(5) through (6) No change.

(7) Competitive Bidding Procedures.

(a) When competitive bidding is required, notice to bidders shall be given by publication in a newspaper published in the county in which the lands are located not less than once a week for two three consecutive weeks. The notice shall provide the following:

1. Location of the parcel by Section, Township and Range, or by tax identification number;

2. The total approximate acreage of the parcel for lease or sale;

3. The term of lease and any renewal options, if applicable;

4. A statement of obligations of the grantee for taxes and drainage assessments;

5. The minimum value of improvements to be made, if any;

6. Any conditions deemed necessary by the Board Trustees;

7. The deadline, date and time, for the receipt of sealed bids in the office of the division; and

8. The address to which the bid shall be directed and posted; or

9. In lieu of all the foregoing, the publication may be limited to items 1., 2. and 8.9. and notice that a complete statement concerning terms of the lease or sale will be forwarded to interested bidders upon request.

(b) through (c) No change.

(d) Sealed bids shall be accompanied by a certified check, cashier’s check, or letter of credit from a financial institution as defined by Section 655.005, F.S., and shall not exceed either for 10% of the amount bid for the annual rental fee or 10% of the purchase price as payment for the earnest money deposit. The deposits will be non-refundable to the successful bidder and will be credited toward the lease fee or purchase price. The exact amount required as the earnest money deposit shall be set forth in the bid specifications packet.  The successful bidder’s deposit will be credited toward the lease fee or purchase price unless otherwised provided in the bid documents.

(e) No change.

(8) Administrative Fee.

Each government lessee shall pay to the division an annual administrative fee of $300.00 for each lease, sublease or management agreement authorizing the lessee to occupy uplands.

(a) through (c) No change.

Rulemaking Authority 253.03, 253.034  FS. Law Implemented 253.03, 253.034, 253.42, 253.51-.54, 253.571, 270.11 FS. History–New 6-4-96, Amended 5-29-08, _________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE:  Scott Woolam, Senior Program Analyst, Division of State Lands

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Board of Trustees of the Internal Improvement Trust Fund

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 27, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: July 1, 2015