Petition for Waiver of Rules IN THE DEPARTMENT OF ENVIRONMENTAL PROTECTION
STATE OF FLORIDA
OGC No.
PETITION FOR WAIVER OF RULES L
62S-2.072(2)(b)AND 62S-2.076(1)
The City of Miami Beach("City") applied for and was approved for an RTP grant to
develop a trail and trail facilities on the Middle Beach Recreational Corridor("Lands")that it
currently leases from the Board of Trustees of the Internal Improvement Trust Fund ("Trustees").
The City seeks a waiver of Rules 62S-2.072(2)(b) and 62S-2.076(1), Florida Administrative
Code ("the Rules"),under §120.542, Florida Statutes ("F.S."), and as grounds states:
1. The Division of State Lands("Division") serves as staff to the Board of Trustees
of the Internal Improvement Trust Fund("Trustees"). The Division is responsible
for the administration, oversight, management,protection, and conservation of all
state-owned lands.
2. The Division also has the authority to approve and administer pass-through grants
from the Federal Highway Administration("FHWA") for the development of
trails under the Recreational Trails Program ("RTP")pursuant to §260.016(1)(h),
F.S. The Division has the authority to adopt rules for the RTP under
§260.016(1)(c) and has adopted such rules in Chapter 62S-2, Florida
Administrative Code("F.A.C.").
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3. The Division manages the leases for state-owned uplands and sovereign
submerged lands. Some of these,leases, generally to local governments, allow
state-owned land to be used for local trails and parks.
4. As a condition of the RTP grant, the City is required to dedicate the Lands as an
outdoor recreation area for the use and benefit of the general public for a
minimum of 25 years.
5. The applicable portion of Rule 62S-2.072(2)(b), states as follows:
A site not owned by the applicant or government shall be
under the applicant's or government's control by a 99-year
lease or similar control, such that the applicant has the legal
ability to dedicate and manage the site for public recreational
trail use pursuant to subsections 62S-2.076(1) and (2),
F.A.C. (emphasis added).
6. The Division seeks, on behalf of the City of Miami Beach, a waiver from the
requirement that the site be dedicated to the general public. It would be
impossible for the City to comply with Rule 62S-2.072(2)(b)because the City
lacks"the legal ability to dedicate"the site for public recreational trail use. Only
the property owner, in this case the Trustees,has the authority to dedicate the
property to public use. The Division itself, although tasked with managing the
property on behalf of the Trustees, has not been delegated the authority to
dedicate land owned by the State of Florida.
7. The Division is also requesting a waiver of the applicable portion of Rule 62S-
2.076(1), F.A.C., which states as follows:
Land under control other than by ownership of the grantee
such as by lease, shall be dedicated as an outdoor recreation
area for the use and benefit of the general public for a
minimum of twenty-five(25) years from the completion date
set forth in the project completion certificate. The lease must
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not be revocable at will; must extend for twenty-five (25)
years after project completion date; and must contain a
clause which enables the grantee to dedicate the land for the
twenty-five(25) year period. The dedication must be
recorded in the public property records by the grantee, or in
the case of a nonprofit grantee,by the land owner.
8. The Division is seeking, on behalf of grant recipient the City of Miami Beach, a
waiver of the portion of this rule that requires dedication.
9. Neither the City nor the Division can meet the requirements of Rule 62S-2.076(1),
F.A.C. because neither is the land owner and neither has the authority to dedicate
the property.
10. Section 260.016(1)(h), F.S., shows that the Florida Legislature intended to allow
the Division to give pass through grants to local governments to develop trail
facilities on public lands,presumably including state-owned lands. The Division
could meet this intent by accepting the City's lease of 25 years or more on behalf
of the Trustees.'
11. The 25-year dedication is not specifically required by statute. It is solely a rule
requirement. Its evident purpose is to ensure that public funds are spent on public
properties that will remain in the public domain for a reasonable length of time.
There is no question that the Division's lease would accomplish this purpose even
without the requirement for dedication.
12. Section 120.542, F.S.,provides that where"[s]trict application of uniformly
applicable rule requirements can lead to unreasonable, unfair, and unintended
1 If the City's lease has less than 25 years remaining on its term,the Division will seek an amendment of the lease to
extend the term to the 25 years required by the RTP Rules.
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results in particular instances . . . it is appropriate in such cases to adopt a
procedure for agencies to provide relief to persons subject to regulation."
13. Section 120.542 specifically provides that an agency may not waive a federal
requirement unless the federal program allows a waiver or the federal agency
approves a waiver. Dedication is not a requirement under the federal RTP
program.
14. Section 120.542(2), F.S.,provides that"[v]ariances and waivers shall be granted
when the person subject to the rule demonstrates that the purpose of the
underlying statute will be or has been achieved by other means by the person." In
this case the purpose served by the required dedication can be achieved through
provisions within the City's lease that serve to limit the City's use of the lands to
outdoor recreation. Therefore, that portion of the statute is satisfied.
15. Section 120.542(2) also requires that the petitioner for a waiver demonstrate that
strict application of the rule will "create substantial hardship or would violate
principles of fairness." The City has demonstrated a substantial hardship because
of the RTP Rule requirement to dedicate lands they do not own. This would
preclude the City from seeking grant funds that the legislature intended to be
available to those leasing state-owned land.
16. Since the Division is a governmental body with the duty to provide public lands
for public use,the Division will be ultimately responsible to ensure compliance
with the RTP Rules requirements and the provisions of the Division's lease with
the City.
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WHEREFORE, the City,respectfully requests:
That the rules referenced above waived for this project; and
Submitted this 21 day of FnitvAn7 , 2020.
ATTEST: CITY`e F MIAM '':EACH, FLORIDA
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Rafael E. Gra do, City Clerk Ji i, L. Mor.les, City Manager
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Date
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