Section 259.041, Florida Statutes 2009
259.041 Acquisition of state-owned lands for preservation, conservation, and recreation purposes.--
(1) Neither the Board of Trustees of the Internal Improvement Trust Fund nor its duly authorized agent shall commit the state, through any instrument of negotiated contract or agreement for purchase, to the purchase of lands with or without appurtenances unless the provisions of this section have been fully complied with. Except for the requirements of subsections (3), (14), and (15), the board of trustees may waive any requirements of this section, may waive any rules adopted pursuant to this section, notwithstanding chapter 120, or may substitute other reasonably prudent procedures, provided the public's interest is reasonably protected. The title to lands acquired pursuant to this section shall vest in the board of trustees as provided in s. 253.03(1), unless otherwise provided by law, and all such titled lands shall be administered pursuant to the provisions of s. 253.03.
(2) The board of trustees has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this section, including rules governing the terms and conditions of land purchases. Such rules shall address with specificity, but not be limited to:
(a) The procedures to be followed in the acquisition process, including selection of appraisers, surveyors, title agents and closing agents, and the content of appraisal reports.
(b) The determination of the value of parcels which the state has an interest to acquire.
(c) Special requirements when multiple landowners are involved in an acquisition.
(d) Requirements for obtaining written option agreements so that the interests of the state are fully protected.
(3) No agreement to acquire real property for the purposes described in this chapter, chapter 260, or chapter 375, title to which will vest in the board of trustees, may bind the state unless and until the agreement has been reviewed and approved by the Department of Environmental Protection as complying with the requirements of this section and any rules adopted pursuant to this section. Where any of the following conditions exist, the agreement shall be submitted to and approved by the board of trustees:
(a) The purchase price agreed to by the seller exceeds the value as established pursuant to the rules of the board of trustees;
(b) The contract price agreed to by the seller and acquiring agency exceeds $1 million;
(c) The acquisition is the initial purchase in a project; or
(d) Other conditions that the board of trustees may adopt by rule. Such conditions may include, but not be limited to, projects where title to the property being acquired is considered nonmarketable or is encumbered in such a way as to significantly affect its management.
Where approval of the board of trustees is required pursuant to this subsection, the acquiring agency must provide a justification as to why it is in the public's interest to acquire the parcel or project. Approval of the board of trustees also is required for projects the department recommends acquiring pursuant to subsections (14) and (15). Review and approval of agreements for acquisitions for Florida Greenways and Trails Program properties pursuant to chapter 260 may be waived by the department in any contract with nonprofit corporations that have agreed to assist the department with this program. If the contribution of the acquiring agency exceeds $100 million in any one fiscal year, the agreement shall be submitted to and approved by the Legislative Budget Commission.
(4) Land acquisition procedures provided for in this section and related rules are for voluntary, negotiated acquisitions.
(5) For the purposes of this section, the term "negotiations" does not include preliminary contacts with the property owner to determine the availability of the property, existing appraisal data, existing abstracts, and surveys.
(6) Evidence of marketable title in the form of a commitment for title insurance or an abstract of title with a title opinion shall be obtained prior to the conveyance of title, as provided in the final agreement for purchase.
(7) Prior to approval by the board of trustees or, when applicable, the Department of Environmental Protection, of any agreement to purchase land pursuant to this chapter, chapter 260, or chapter 375, and prior to negotiations with the parcel owner to purchase any other land, title to which will vest in the board of trustees, an appraisal of the parcel shall be required as follows:
(a) The board of trustees shall adopt by rule the method for determining the value of parcels sought to be acquired by state agencies pursuant to this section.
(b) Each parcel to be acquired shall have at least one appraisal. Two appraisals are required when the estimated value of the parcel exceeds $1 million. However, when both appraisals exceed $1 million and differ significantly, a third appraisal may be obtained. When a parcel is estimated to be worth $100,000 or less and the director of the Division of State Lands finds that the cost of obtaining an outside appraisal is not justified, an appraisal prepared by the division may be used.
(c) Appraisal fees and associated costs shall be paid by the agency proposing the acquisition. The board of trustees shall approve qualified fee appraisal organizations. All appraisals used for the acquisition of lands pursuant to this section shall be prepared by a member of an approved appraisal organization or by a state-certified appraiser who meets the standards and criteria established in rule by the board of trustees. Each fee appraiser selected to appraise a particular parcel shall, prior to contracting with the agency or a participant in a multiparty agreement, submit to that agency or participant an affidavit substantiating that he or she has no vested or fiduciary interest in such parcel.
(d) The fee appraiser and the review appraiser for the agency shall not act in any way that may be construed as negotiating with the property owner.
(e) Generally, appraisal reports are confidential and exempt from the provisions of s. 119.07(1), for use by the agency and the board of trustees, until an option contract is executed or, if no option contract is executed, until 2 weeks before a contract or agreement for purchase is considered for approval by the board of trustees. However, the department has the authority, at its discretion, to disclose appraisal reports to private landowners during negotiations for acquisitions using alternatives to fee simple techniques, if the department determines that disclosure of such reports will bring the proposed acquisition to closure. The Division of State Lands may also disclose appraisal information to public agencies or nonprofit organizations that agree to maintain the confidentiality of the reports or information when joint acquisition of property is contemplated, or when a public agency or nonprofit organization enters into a written multiparty agreement with the division to purchase and hold property for subsequent resale to the division. In addition, the division may use, as its own, appraisals obtained by a public agency or nonprofit organization, provided the appraiser is selected from the division's list of appraisers and the appraisal is reviewed and approved by the division. For the purposes of this chapter, "nonprofit organization" means an organization whose purposes include the preservation of natural resources, and which is exempt from federal income tax under s. 501(c)(3) of the Internal Revenue Code. The agency may release an appraisal report when the passage of time has rendered the conclusions of value in the report invalid or when the acquiring agency has terminated negotiations.
(f) The Division of State Lands may use, as its own, appraisals obtained by a public agency or nonprofit organization, provided that the appraiser is selected from the division's list of appraisers and the appraisal is reviewed and approved by the division. For the purposes of this chapter, the term "nonprofit organization" means an organization whose purposes include the preservation of natural resources and which is exempt from federal income tax under s. 501(c)(3) of the Internal Revenue Code.
Notwithstanding the provisions of this subsection, on behalf of the board and before the appraisal of parcels approved for purchase under this chapter, the Secretary of Environmental Protection or the director of the Division of State Lands may enter into option contracts to buy such parcels. Any such option contract shall state that the final purchase price is subject to approval by the board or, when applicable, the secretary and that the final purchase price may not exceed the maximum offer allowed by law. Any such option contract presented to the board for final purchase price approval shall explicitly state that payment of the final purchase price is subject to an appropriation from the Legislature. The consideration for such an option may not exceed $1,000 or 0.01 percent of the estimate by the department of the value of the parcel, whichever amount is greater.
(8)(a) When the owner is represented by an agent or broker, negotiations may not be initiated or continued until a written statement verifying such agent's or broker's legal or fiduciary relationship with the owner is on file with the agency.
(b) The board of trustees or any state agency may contract for real estate acquisition services, including, but not limited to, surveying, mapping, environmental audits, title work, and legal and other professional assistance to review acquisition agreements and other documents and to perform acquisition closings. However, the department shall use outside counsel for review of any agreements or documents, or to perform acquisition closings unless department staff can conduct the same activity in 15 days or less.
(c) All offers or counteroffers shall be documented in writing and shall be confidential and exempt from the provisions of s. 119.07(1) until an option contract is executed, or if no option contract is executed, until 2 weeks before a contract or agreement for purchase is considered for approval by the board of trustees. The agency shall maintain complete and accurate records of all offers and counteroffers for all projects.
(9)(a) A final offer shall be in the form of an option contract or agreement for purchase and shall be signed and attested to by the owner and the representative of the agency. Before the agency signs the agreement for purchase or exercises the option contract, the provisions of s. 286.23 shall be complied with. Within 10 days after the signing of the agreement for purchase, the state agency shall furnish the Division of State Lands with the original of the agreement for purchase along with copies of the disclosure notice, evidence of marketability, the accepted appraisal report, the fee appraiser's affidavit, a statement that the inventory of existing state-owned lands was examined and contained no available suitable land in the area, and a statement outlining the public purpose for which the acquisition is being made and the statutory authority therefor.
(b) Within 45 days after receipt by the Division of State Lands of the agreement for purchase and the required documentation, the board of trustees or its designee shall either reject or approve the agreement. An approved agreement for purchase is binding on both parties. Any agreement which has been disapproved shall be returned to the agency, along with a statement as to the deficiencies of the agreement or the supporting documentation. An agreement for purchase which has been disapproved by the board of trustees or its designee may be resubmitted when such deficiencies have been corrected.
(10)(a) The board of trustees may accept a dedication, gift, grant, or bequest of lands and appurtenances without formal evidence of marketability, or when the title is nonmarketable, if the board or its designee determines that such lands and appurtenances have value and are reasonably manageable by the state and that their acceptance would serve the public interest. The state is not required to appraise the value of such donated lands and appurtenances as a condition of receipt. No deed filed in the public records to donate lands to the Board of Trustees of the Internal Improvement Trust Fund shall be construed to transfer title to or vest title in the board of trustees unless there also shall be filed in the public records, a document indicating that the board of trustees has agreed to accept the transfer of title to such donated lands.
(b) The board of trustees may not accept by dedication, gift, grant, or bequest any lands and appurtenances that are determined to be owned by the state either in fee or by virtue of the state's sovereignty or which are so encumbered as to preclude the use of such lands and appurtenances for any reasonable public purpose.
(c) Notwithstanding any other provision of law, the maximum value of a parcel to be purchased by the board of trustees as determined by the highest approved appraisal or as determined pursuant to the rules of the board of trustees shall not be increased or decreased as a result of a change of zoning, permitted land uses, or changes in market forces or prices that occur within 1 year after the date the Department of Environmental Protection or board of trustees approves a contract to purchase the parcel.
(11)(a) The Legislature finds that, with the increasing pressures on the natural areas of this state and on open space suitable for recreational use, the state must develop creative techniques to maximize the use of acquisition and management funds. The Legislature also finds that the state's conservation and recreational land acquisition agencies should be encouraged to augment their traditional, fee simple acquisition programs with the use of alternatives to fee simple acquisition techniques. Additionally, the Legislature finds that generations of private landowners have been good stewards of their land, protecting or restoring native habitats and ecosystems to the benefit of the natural resources of this state, its heritage, and its citizens. The Legislature also finds that using alternatives to fee simple acquisition by public land acquisition agencies will achieve the following public policy goals:
1. Allow more lands to be brought under public protection for preservation, conservation, and recreational purposes with less expenditure of public funds.
2. Retain, on local government tax rolls, some portion of or interest in lands which are under public protection.
3. Reduce long-term management costs by allowing private property owners to continue acting as stewards of their land, where appropriate.
Therefore, it is the intent of the Legislature that public land acquisition agencies develop programs to pursue alternatives to fee simple acquisition and to educate private landowners about such alternatives and the benefits of such alternatives. It is also the intent of the Legislature that a portion of the shares of Preservation 2000 and Florida Forever bond proceeds be used to purchase eligible properties using alternatives to fee simple acquisition.
(b) All project applications shall identify, within their acquisition plans, those projects which require a full fee simple interest to achieve the public policy goals, together with the reasons full title is determined to be necessary. The state agencies and the water management districts may use alternatives to fee simple acquisition to bring the remaining projects in their acquisition plans under public protection. For the purposes of this subsection, the term "alternatives to fee simple acquisition" includes, but is not limited to: purchase of development rights; obtaining conservation easements; obtaining flowage easements; purchase of timber rights, mineral rights, or hunting rights; purchase of agricultural interests or silvicultural interests; entering into land protection agreements as defined in s. 380.0677(4); fee simple acquisitions with reservations; creating life estates; or any other acquisition technique which achieves the public policy goals listed in paragraph (a). It is presumed that a private landowner retains the full range of uses for all the rights or interests in the landowner's land which are not specifically acquired by the public agency. The lands upon which hunting rights are specifically acquired pursuant to this paragraph shall be available for hunting in accordance with the management plan or hunting regulations adopted by the Florida Fish and Wildlife Conservation Commission, unless the hunting rights are purchased specifically to protect activities on adjacent lands.
(c) When developing the acquisition plan pursuant to s. 259.105 the Acquisition and Restoration Council may give preference to those less than fee simple acquisitions that provide any public access. However, the Legislature recognizes that public access is not always appropriate for certain less than fee simple acquisitions; therefore no proposed less than fee simple acquisition shall be rejected simply because public access would be limited.
(d) Beginning in fiscal year 1999-2000, the department and each water management district shall implement initiatives to use alternatives to fee simple acquisition and to educate private landowners about such alternatives. The department and the water management districts may enter into joint acquisition agreements to jointly fund the purchase of lands using alternatives to fee simple techniques.
(e) The Legislature finds that the lack of direct sales comparison information has served as an impediment to successful implementation of alternatives to fee simple acquisition. It is the intent of the Legislature that, in the absence of direct comparable sales information, appraisals of alternatives to fee simple acquisitions be based on the difference between the full fee simple valuation and the value of the interests remaining with the seller after acquisition.
(f) The public agency which has been assigned management responsibility shall inspect and monitor any less than fee simple interest according to the terms of the purchase agreement relating to such interest.
(12) Any conveyance to the board of trustees of fee title shall be made by no less than a special warranty deed, unless the conveyance is from the Federal Government, the county government, or another state agency or, in the event of a gift or donation by quitclaim deed, if the board of trustees, or its designee, determines that the acceptance of such quitclaim deed is in the best interest of the public. A quitclaim deed may also be accepted to aid in clearing title or boundary questions.
(13) The board of trustees may purchase tax certificates or tax deeds issued in accordance with chapter 197 relating to property eligible for purchase under this section.
(14) The board of trustees, by majority vote of all of its members, voting at a regularly scheduled and advertised meeting, may direct the department to exercise the power of eminent domain pursuant to the provisions of chapters 73 and 74 to acquire any of the properties on the acquisition list established by the land acquisition selection committee and approved by the board of trustees. However, the board of trustees may only make such a vote under the following circumstances:
(a) The state has made at least two bona fide offers to purchase the land through negotiation and, notwithstanding those offers, an impasse between the state and the landowner was reached.
(b) The land is of special importance to the state because of one or more of the following reasons:
1. It involves an endangered or natural resource and is in imminent danger of development.
2. It is of unique value to the state and the failure to acquire it will result in irreparable loss to the state.
3. The failure of the state to acquire it will seriously impair the state's ability to manage or protect other state-owned lands.
Pursuant to this subsection, the department may exercise condemnation authority directly or by contracting with the Department of Transportation or a water management district to provide that service. If the Department of Transportation or a water management district enters such a contract with the department, the Department of Transportation or a water management district may use statutorily approved methods and procedures ordinarily used by the agency for condemnation purposes.
(15) The board of trustees, by an affirmative vote of at least three of its members, may direct the department to purchase lands on an immediate basis using up to 15 percent of the funds allocated to the department pursuant to ss. 259.101(3)(a) and 259.105 for the acquisition of lands that:
(a) Are listed or placed at auction by the Federal Government as part of the Resolution Trust Corporation sale of lands from failed savings and loan associations;
(b) Are listed or placed at auction by the Federal Government as part of the Federal Deposit Insurance Corporation sale of lands from failed banks; or
(c) Will be developed or otherwise lost to potential public ownership, or for which federal matching funds will be lost, by the time the land can be purchased under the program within which the land is listed for acquisition.
For such acquisitions, the board of trustees may waive or modify all procedures required for land acquisition pursuant to this chapter and all competitive bid procedures required pursuant to chapters 255 and 287. Lands acquired pursuant to this subsection must, at the time of purchase, be on one of the acquisition lists established pursuant to this chapter, or be essential for water resource development, protection, or restoration, or a significant portion of the lands must contain natural communities or plant or animal species which are listed by the Florida Natural Areas Inventory as critically imperiled, imperiled, or rare, or as excellent quality occurrences of natural communities.
(16) The Auditor General shall conduct audits of acquisitions and divestitures which he or she deems necessary, according to his or her preliminary assessments of board-approved acquisitions and divestitures. These preliminary assessments shall be initiated not later than 60 days following the final approval by the board of land acquisitions under this section. If an audit is conducted, the Auditor General shall submit an audit report to the board of trustees, the President of the Senate, the Speaker of the House of Representatives, and their designees.
(17) Title to lands to be held jointly by the board of trustees and a water management district and acquired pursuant to the procedures set out in s. 373.139 may be deemed to meet the standards necessary for ownership by the board of trustees, notwithstanding any provisions in this section or in related rules.
(18) Any agency authorized to acquire lands on behalf of the board of trustees is authorized to request disbursement of payments for real estate closings in accordance with a written authorization from an ultimate beneficiary to allow a third party authorized by law to receive such payment provided the Chief Financial Officer determines that such disbursement is consistent with good business practices and can be completed in a manner minimizing costs and risks to the state.
(19) Many parcels of land acquired pursuant to this section may contain cattle-dipping vats as defined in s. 376.301. The state is encouraged to continue with the acquisition of such lands including the cattle-dipping vats.
History.--s. 4, ch. 94-240; s. 852, ch. 95-148; s. 3, ch. 95-349; s. 5, ch. 96-389; s. 115, ch. 96-406; s. 51, ch. 98-200; s. 12, ch. 98-336; s. 19, ch. 99-247; s. 30, ch. 2000-152; s. 88, ch. 2001-266; s. 16, ch. 2003-6; s. 281, ch. 2003-261; s. 9, ch. 2003-394; s. 12, ch. 2008-229.