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DEP addresses state owned submerged land

January 29, 2014
By ED FRANKS ( , Pine Island Eagle

Three employees of the Florida Department of Environmental Protection arrived at the Pine Island Art Association building in Matlacha Park last Tuesday evening. They were invited by the Matlacha Civic Association to explain why several Matlacha waterfront property owners received a visit from the Florida DEP about their properties.

Over the last couple of months, several Matlacha businesses were visited by Florida DEP officials advising them that the land behind their businesses has been identified as state owned submerged land. In these cases land and docks were determined to be on state owned and would require not just a permit but an application fee and back payments including sales tax, interest, a 25 percent surcharge and annual lease fees for the previous four years.

Terry Cerullo, community outreach; Greg O'Connell, submerged lands and environmental coordinator; and James Kipp, environmental specialist, were there to offer a Powerpoint presentation and answer residents questions.

"The DEP has contacted several business owners that have docks on the water on Matlacha," O'Connell said. "It is commercial businesses that generally need a lease and very few private residences. We look at each individual property and review to see if it's on state lands or not and then if it is, we contact the owner of the property to bring it under lender-lease if that is what's required."

Section 18-21 of the law specifies what state owned lands are. These were established in 1845 when Florida became a state. The law states that lands, "Including but not limited to, tidal lands, islands, sand bars, shallow banks, and lands water-ward of the ordinary or mean high water line, beneath navigable fresh water or beneath tidally influenced waters ..."

Most of the submerged lands in Matlacha Pass, Pine Island Sound and Charlotte Harbor are state owned and are designated as aquatic preserves. Privately owned submerged lands are generally not in aquatic preserves. A local example would be the canals created by the developer in Cape Coral.

"The issue on Matlacha (and elsewhere) is where does my property end and the state's begin," O'Connell said. "Very few residential properties are going to come under the lease laws. It's almost exclusively revenue generating properties."

According to the law, revenue generating property is defined as, "any structure or activity on sovereignty submerged lands that generates revenue or income by any means or serves as an accessory activity or facility to any revenue generating or income producing operation, such as docking for marinas, restaurants, hotels, motels, commercial fishing, shipping, and boat or ship construction, repair or sales. However, the following shall not be construed to be revenue generating or income producing: the sole act of mooring a commercial vessel at the vessel owner's private residential single-family dock; incidental aquaculture activities on a private residential dock or pier; rental of private single-family residence with a dock or pier; or construction by a developer os a private residential single-family or multi-family dock or pier."

If a property falls under the lease law, lease fees are applied. The lease application fee is $606. The minimum annual lease fee is $490 (adjusted annually with changes in CPI). The annual lease fee is currently $0.163077 per square foot. For example, if a property has 4,000 square feet of preempted area on state owned land, the lease fee is $0.163077 multiplied by 4,000 square feet for a total annual lease fee of $652.31.

Fernando's Hideaway was one of the businesses contacted by DEP. However, after reviewing the property lines, DEP determined that Fernando's Hideaway's property line was approximately 10 feet beyond the shore line and therefore does not fall under the lease-fee laws. They did determine however, that the property next door had apparently been filled in years ago and would require a lease agreement with the state.

At the end of the presentation there was a brief question and answer period.

One resident asked, "My question is why now? Why all of a sudden are people learning that they have to pay a lease on their land. Isn't something like this covered by the title search when you buy property?"

"It's very unlikely that a title search company is aware of the lease laws that are involved in submersible land," O'Connell said. "It's also possible that these docks were constructed before permits were even needed. In those cases there was grandfathering for these structures that would need a lease. They went through two grandfather stages in 1984 and 1990 that required all of these to come under lease as of Jan. 1, 1998. The bulk of these facilities came under lease at that time. But as technologies improved and aerials became more and more available the state found areas that had been missed. That's where we are today."

Mike Gibbons, owner of Matlacha Cottages asked, "The letter I got was for four years back licensing fees and I'd like to know when I was notified originally. I never got a letter. I am a new property owner so I only go back a year but even my title search didn't show this. But some of these people got hit for four years. When was this law instituted and why haven't people been notified for four years and then hitting them up for non-payment for four years when they were never notified?

"This isn't going to answer your question but it may offer some insight," O'Connell said. "Up until a year and a half ago they would assess lease fees back to Sept. 30, 1984 (or the date of purchase). It was determined that there was a four year "statute of limitations" and we had it changed to four years. There is also a "hardship clause" so anyone with a hardship can get their fees modified."

Most residential properties don't come under the lease agreement. However there are some special circumstances (such as an oversized dock) that may cause a property to fall under the lease laws. It is possible that only a small modification to a dock could be made.

"Back in the '70s is when the leases came into effect with marinas to start with," O'Connell said. "Then in 1982 the leases were expanded to include restaurants, piers, hotels and other commercial uses.

Another asked, "Where does this money go to?"

"This money goes in to the Internal Improvement Trust Fund for the State of Florida," O'Connell said.

"Regarding the canal systems in these areas, generally speaking, the canal systems in Matlacha, Matlacha Isles, St. James City are not state land and do not come under the lease laws if they were dug out from the uplands," O'Connell said. "However, some of the canals in Bokeelia were filled out and may fall under the lease law."

"The issue comes down to Riparian Rights and if you have property adjacent to the water you have the right to use of those waters," O'Connell said. "But you have to stay within those rights that are established by your surveyor. Any situation where the homeowner disagrees those property owners have to go to court to determine what is the proper Riparian line."

For information contact: Florida Department of Environmental Protection, South District Office, 2295 Victoria Avenue, Suite 364, Fort Myers, Florida 33902-2549; phone: 239-344-5600; Fax: 850-412-0590



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