Item F8 F.8
Coty f � ,�� ,' BOARD OF COUNTY COMMISSIONERS
�� Mayor David Rice,District 4
The Florida Keys � Mayor Pro Tem Craig Cates,District I
y Michelle Coldiron,District 2
James K.Scholl,District 3
Ij Holly Merrill Raschein,District 5
County Commission Meeting
August 17, 2022
Agenda Item Number: F.8
Agenda Item Summary #10835
BULK ITEM: No DEPARTMENT: Land Authority Governing Board
TIME APPROXIMATE: STAFF CONTACT: Christine Hurley (305) 295-5180
9:25 AM
AGENDA ITEM WORDING: Authorization for Monroe County Land Authority Attorney to seek
an Attorney General's opinion regarding whether the Monroe County Land Authority is exempt from
public disclosure requirements pursuant to Florida Statute 125.355
ITEM BACKGROUND: The Land Authority currently regards all property acquisitions and
corresponding data as confidential, according to F.S. 125.355. This opinion is being sought to assure
the interpretation of this statute is correct, since the Monroe County Land Authority is a Dependent
District to Monroe County.
PREVIOUS RELEVANT BOCC ACTION:
CONTRACT/AGREEMENT CHANGES:
No
STAFF RECOMMENDATION:
DOCUMENTATION:
Legal Opinion Request to AGO - confidentiality of documents for purchases
FINANCIAL IMPACT:
Effective Date:
Expiration Date:
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
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F.8
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required:
Additional Details:
If applicable,please type in "None" or "N/A"; OR, if costs are associated with this item, check
the 'Budget Affected" box below and complete the funding source box for our Budget office.
For each funding source, select the cost center from the drop down list in the "Source" column
and enter the amount(do not insert$ sign). If the cost center is not known or not yet created,
select"NEW COST CENTER ADDED" from the drop down list. PLEASE REMEMBER TO
DELETE THESE INSTRUCTIONS PRIOR TO SAVING/SUBMITTING.
REVIEWED BY:
Christine Hurley Completed 07/15/2022 2:55 PM
Dina Gambuzza Completed 07/15/2022 4:54 PM
Bob Shillinger Skipped 07/29/2022 3:06 PM
Lindsey Ballard Completed 07/29/2022 4:25 PM
Board of County Commissioners Pending 08/17/2022 9:00 AM
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F.8.a
MEMORANDUM OF LAW
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TO: Office of the Attorney General of Florida C.
Hon. Ashley Moody
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From: Gregory S. Oropeza, Counsel for Monroe County Land Authority 2
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Date August 17, 2022 U
Subject: Request for Opinion of the Attorney General re: Whether the Monroe County
Comprehensive Plan Land Authority is Exempt from Public Disclosure
Requirements Pursuant to Florida Statute §125.355.
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I.
QUESTION PRESENTED
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Whether the Monroe County Comprehensive Plan Land Authority ("MCLA"), which is a
subset of the Monroe County Board of County Commissioners (`BOCC") as promulgated under 2-
Ordinance 031-1986, is exempt from the public disclosure requirements as relates to property
acquisitions and potential property acquisitions which are purchased in furtherance of the 0
objectives of the State of Florida and Monroe County, Florida.
II.
BRIEF ANSWER
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Yes. The undersigned believes that MCLA, which is a subset of BOCC and which was 0
created by BOCC for the sole purpose of carrying out the objectives of the State of Florida and
Monroe County as set forth in Florida Statutes Chapter 380, is exempt from public disclosure
documents and information which relate to the acquisition, or attempted acquisitions, of property
which is acquired, or sought to be acquired, by MCLA in furtherance of its objectives of wildlife
conservation, habitat conservation, to increase affordable housing availability, and to reduce the 0
available number of buildable lots to ensure safe hurricane evacuations while eliminating, or
otherwise greatly reducing, the number of future takings claims upon expiration of the State of
Florida's Rate of Growth System ("ROGO"). 0
III.
RELEVANT FACTS a�
Monroe County, Florida is a non-charter county and political subdivision of the State of g
Florida, and further is a dependent district as defined by the Department of Economic C.
Opportunity.' In 1986,via Ordinance No. 031-1986("Ordinance',)2,the BOCC created the MCLA 0
as a land authority within an "Area of Critical State Concern" for the purpose of implementing
comprehensive land use plans developed pursuant to the Areas of Critical State Concern Program.
1 See The Special Districts Report prepared by the Department of Economic Opportunity,
http://sp�ecialdistrictrep�orts,floridajobs,orb/webreports/alldistricts,aspx
z See Ordinance No.031-1986,attached hereto as Exhibit"A."
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The Ordinance specifically states that the MCLA was developed for the purpose of acquiring land
within Monroe County for "preservation, conservation, lot consolidation, the provision of 0
affordable housing and the reduction in the total number of dwelling units to be developed in 0.
Monroe County," such actions which are"consistent with and in furtherance of the Monroe County 0
Comprehensive Plan."
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To be more specific, the State of Florida developed the Areas of Critical State Concern U)
Program which identified Counties within the State of Florida which were found to be a cause for
concern due to the growing populations and the risk to those populations presented by severe
weather. Monroe County was identified as one of the counties of concern due to its remoteness, .2
large and growing population, and its limited evacuation path for severe storms. The State of
Florida devised a plan to reduce the total number of buildings within Monroe County in developing
the Rate of Growth System (ROGO), which limits the total number of building permits which are
given out on an annual basis until the expiration of ROGO in 2026. 0
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MCLA's sole purpose has always been to acquire land on behalf of Monroe County and
the State of Florida. The land is purchased and subsequently used for wildlife conservations, U)
habitat conservation areas, for density reduction, or to provide for affordable housing for current U)
Monroe County residents. The County's most recent concern has become the potential for a large
quantity of takings claims which are anticipated to be filed upon expiration of the ROGO in 2026.
ROGO has acted as a shield for the County insofar as it is a State mandated restriction on building
permits designed to slow the growth of the number of residents within the County in order to U)
maintain safe hurricane evacuations, and therefore the County could not allow building within the
County limits to the extent current and proposed landowners desired to build. However, with the E
fast-approaching expiration of ROGO, the County is concerned that it will face a large number of 0
takings claims filed as a result.
In carrying out the objectives of BOCC, Monroe County, and the State of Florida, MCLA
locates privately owned vacant lands which have building rights and subsequently works with the
owner to negotiate a contract to purchase the property,thereafter,retiring the building rights. In so
doing, in some transactions, MCLA obtains an appraisal on the land and makes an offer and/or a
counteroffers to the landowner based on such appraisals. The public disclosure of these appraisals,
offers and/or counteroffers places MCLA in an inferior bargaining position for acquisition of lands 0
with public funds, and is thus counter-intuitive to the objectives of MCLA,BOCC,the County and <
the State. Moreover, the MCLA currently abides by Florida Statute §125.355(1)(b) in that it
obtains at least one (1) appraisal by an appraiser approved pursuant to Florida Statute
§253.025(6)(b) for a purchase which is for more than $100,000 but not more than $500,000.00,
and obtains at least two (2) appraisals for any purchases which exceed $500,000.00. Further, in
the event MCLA and the landowner agree to a purchase price which exceeds the appraised price
of the appraisals,the MCLA calls for an extraordinary vote, and only purchases the property above
the appraisal price in the event the vote passes. 0
In analyzing the applicability of statutory exemptions from public disclosure, the
undersigned finds that it is the intent of F.S. §125.3553 to provide the County with a means under
which it could reasonably purchase land and/or property in furtherance of its public purposes
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3 See copy of FL.ST. §125.355,attached hereto as Exhibit`B."
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without interference of the general public. Given the language and the apparent intent of the statute,
the undersigned believes that, as a subset of the County which was developed solely for the
furtherance of the initiatives and goals of the State of Florida and the County, both of which are
clear third parry beneficiaries to land purchases by MCLA, the MCLA would fall under the term 0
"county" as used in F.S. 125.355, and is therefore exempt from public disclosure or inspection for
all such property acquisitions, including any and all appraisals obtained on a property sought for
purchase, and any and all offers and counteroffers made, at least to the extent that such appraisals, U)
offers,and counter offers are in furtherance of the objectives of the State of Florida and the County.
Notably, MCLA has already been designated a state agency by former Attorney General .2
Lytton, Sr., who found in Advisory Legal Opinion No. AGO 87-534, that MCLA, which is a land
authority created pursuant to F.S. §768.28, is a "state agency or subdivision" and is therefore
subject to actions to recover damages in tort for money damages related to sovereign immunity.
Given this prior designation of MCLA as a state agency or subdivision, it would appear clear that 0
MCLA is therefore exempt from public disclosure or inspection of appraisals, offers or 0
counteroffers for the acquisition of land under F.S. §125.355.
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IV.
STATUTORY FRAMEWORK:
Section 380.0661 Florida Statutes,provides:
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Legislative intent. It is hereby declared that the intent of the Legislature is:
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(1) To provide a mechanism to equitably deal with the challenges of
implementing comprehensive land use plans developed pursuant to the area of ,0
critical state concern program, which challenges are often complicated by the 0
environmental sensitivity of such areas.
(2) To provide the mechanism referred to in subsection (1)by creation of a body
politic which would have a stable funding source and the flexibility to address plan
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implementation innovatively and by acting as an intermediary between individual 0
landowners and the governmental entities regulating land use.
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Section 380.0663 Florida Statutes,provides:
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Land authority; creation, membership, expenses.— U)
(1) Each county in which one or more areas of critical state concern are located a�
is authorized to create, by ordinance, a public body corporate and politic, to be
known as a land authority, which may be renamed by the governing board of the g
county. The governing body of the land authority shall be the governing board of C.
the county. For the purposes of this act, the governing body of the land authority 0
shall be referred to individually or collectively as the members or membership of
the land authority, whichever is appropriate.
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4 See AGO 87-53,attached hereto as Exhibit"C."
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F.8.a
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Further, as stated above, the MCLA is a dependent district pursuant to the classification0.
designation allotted to MCLA by the Department of Economic Opportunity. E
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189.012 Definitions.—As used in this chapter, the term: '
(1) "Department" means the Department of Economic Opportunity.
(2) "Dependent special district" means a special district that meets at least one
of the following criteria:
(a) The membership of its governing body is identical to that of the .2
governing body of a single county or a single municipality.
(b) All members of its governing body are appointed by the governing body of
a single county or a single municipality.
(c) During their unexpired terms, members of the special district's governing 0
body are subject to removal at will by the governing body of a single county or a 0
single municipality. 0
(d) The district has a budget that requires approval through an affirmative vote U)
or can be vetoed by the governing body of a single county or a single municipality. U)
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This subsection is for purposes of definition only. Nothing in this subsection
confers additional authority upon local governments not otherwise authorized by L
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the provisions of the special acts or general acts of local application creating each -
special district, as amended.
(3) "Independent special district" means a special district that is not a E
dependent special district as defined in subsection(2). A district that includes more
than one county is an independent special district unless the district lies wholly 'a
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within the boundaries of a single municipality. 0
(4) "Local governing authority" means the governing body of a unit of local
general-purpose government. However, if the special district is a political
subdivision of a municipality, "local governing authority" means the municipality.
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Section 125.355(1) Florida Statutes,provides:
(1)(a) In any case in which a county, pursuant to the provisions of this section, 0
seeks to acquire by purchase any real property for a public purpose, every appraisal, U)
offer, or counteroffer must be in writing. Such appraisals, offers, and counteroffers �.
shall not be available for public disclosure or inspection and are exempt from the
provisions of s. 119.07(1) until an option contract is executed or, if no option
contract is executed, until 30 days before a contract or agreement for purchase is E
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considered for approval by the board of county commissioners. If a contract or 0
agreement for purchase is not submitted to the board of county commissioners for
approval,the exemption from s. 119.07(1)will expire 30 days after the termination
of negotiations. The county shall maintain complete and accurate records of every
such appraisal, offer, and counteroffer. For the purposes of this section, the term
"option contract" means a proposed agreement by the county to purchase a piece
of property, subject to the approval of the local governing body at a public meeting
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F.8.a
after 30 days' public notice. The county will not be under any obligation to exercise
the option unless the option contract is approved by the governing body at the 0
public hearing specified in this section. CL
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(b) If the exemptions provided in this section are utilized, the governing body "
shall obtain at least one appraisal by an appraiser approved pursuant to
s. 253.025(6)(b) for each purchase in an amount of not more than $500,000. For
each purchase in an amount in excess of$500,000,the governing body shall obtain
at least two appraisals by appraisers approved pursuant to s. 253.025(6)(b). If the 'a
2
agreed purchase price exceeds the average appraised price of the two appraisals, Z
the governing body is required to approve the purchase by an extraordinary vote.
The governing body may, by ordinary vote, exempt a purchase in an amount of
$100,000 or less from the requirement for an appraisal.
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(c) Notwithstanding the provisions of this section, any county that does not
choose with respect to any specific purchase to utilize the exemptions from
s. 119.07(1)provided in this section may follow any procedure not in conflict with U)
the provisions of chapter 119 for the purchase of real property which is authorized U)
in its charter or established by ordinance.
(2) Nothing in this section shall be interpreted as providing an exemption from, L
or an exception to, s. 286.011. 0
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Through Section 125.355, the Florida legislature has granted a specific exemption from
public disclosure and/or inspection of appraisals, offers or counteroffers for real property sought
for acquisition for a public purpose. 'a
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V.
ANALYSIS
A. MCLA is exempt from public disclosure and/or inspection of any documents ;-
which pertain in any way to the acquisition, or attempted acquisition, of real 0
property for a public purpose, including but not limited to all appraisals,
offers, or counteroffers.
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"It is axiomatic that where the language of a statute is plain and unambiguous, there is no
necessity for any construction or interpretation of the statute, and effect should be accorded to the
plain meaning of the statute's terms." AGO 86-87,citin CL
_g Holly v.Auld,450 So.2d 217(Fla. 1984);Holly v.Auld,450 So.2d 217(Fla. 1984);
State v. Egan, 287 So.2d 1 (Fla. 1973); Tropical Coach Line, Inc. v. Carter, 121 So.2d 779 (Fla. 0
1960); Maryland Casualty Co. v. Sutherland, 169 So. 679 (Fla. 1936).
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The plain language of Section 125.355, Florida Statutes, clearly exempts Monroe County
from public disclosure or inspection of any information or documentation pertaining to the U
purchase, or attempted or prospective purchase, of real property in furtherance of a public purpose
on behalf of the State of Florida and/or Monroe County, including any and all appraisals, offers or .2
counteroffers which relate to the acquisition or attempted acquisition of such real property. In this
case, MCLA was established by BOCC for the sole purpose of carrying out the objectives of
Monroe County and the State of Florida with regard to the acquisition of privately held lands for
wildlife conservation, habitat restoration areas, density reduction, and affordable housing 0
initiatives, and to further the goals of the State of Florida's Area of Critical Concern and Rate of 0
Growth Ordinance. Moreover, MCLA has already been deemed a state agency or subdivision by
former Attorney General Eugene Lytton, Sr., and therefore it follows that MCLA, as a subset of U)
Monroe County,Florida, is exempt from public disclosure or inspection of any and all information U)
or documentation pertaining in any way to the acquisition, or attempted acquisition, of property, 2-
including any and all appraisals, offers or counteroffers which relate to the acquisition of real CL
property for a public purpose. 0
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VI.
CONCLUSION
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MCLA is a state agency which is exempted from public disclosure and or inspection of any
ra
and all documentation or information pertaining in any way to the acquisition, or
potential/attempted acquisition of real property for a public purpose, including any and all
appraisals, offers or counteroffers,as dictated by F.S. §125.355. The authority of MCLA to acquire a
privately owned lands on behalf of Monroe County is limited to only lands which are acquired for
a public purpose, such as for allocation as wildlife conservation, habitat conservation, affordable
housing, or to eliminate future building on that particular land to avoid additional building and <
thus a more staggering rise in resident and the ensuing longer, less safe hurricane and other 0
weather-related evacuations. It is the opinion of the undersigned that Florida Statute §125.355 U)
applies to MCLA and that therefore MCLA is exempt from public disclosure and or inspection of �-
any and all documentation or information which relate to the acquisition, or attempted or potential
acquisition, of real property for a public purpose, including any and all appraisals, offers or
counteroffers.
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