Lower Matecumbe Beach Property Owners Association

Date: 9-21-2016

To:

Rod Maddox, PSM, Program Manager, BSM

Scott Woolam, Acting Bureau Chief, BSM

David Clark, Director, Director's Office, Division of State Lands

Rick Scott, Governor

Amanda Carey, Deputies Chief of Staff Coordinator, EOG

The Lower Matecumbe Beach Property Owners Association has a clear interest in and strong objection to any acquisition or disposition of all lands adjacent to our Association's 1982 recorded easement to the Jetty that was recorded in our Subdivision's Plat in 1953. Our Association would also like to officially protest any disposition of such lands. To that end please find a resolution unanimously approved by the Lower Matecumbe Beach Property Owners Association.                                                                                              

Whereas, the LMBPOA in order to protect the property rights of all property owners in the Subdivision, unanimously agrees to the following:

Whereas, the Lower Matecumbe Beach Subdivision has over 98 properties adjacent to our canal and relies on direct access to the ocean via our entrance channel which is protected by a jetty and our access to it and is essential to the property values in the Subdivision;

Whereas, the Plat of Lower Matecumbe Beach Subdivision was approved by the Monroe County Board of County Commissioners on February 3, 1953 and recorded in Plat Book 3, Page 34 of the public records of Monroe County, Florida;

Whereas, the developer of Lower Matecumbe Beach Subdivision constructed a rip rap jetty for the purpose of 1) public enjoyment (recreation, fishing etc.), 2) to protect the navigability of the inlet by preventing the adjacent entrance channel to our canal from filling in with sediment and 3) to protect the adjacent coastline from erosion and which creates a beach berm accumulation which fronts the entire length of the Subdivision and extends in front of the federally protected Sea Oats Beach, also home and nesting grounds to endangered sea turtles and shorebirds;

Whereas, the property owners in the Lower Matecumbe Beach Subdivision have historically used the jetty and State lands for public purposes since 1953;

Whereas, the jetty and State lands have been historically used by the public (in addition to those in the Subdivision);

Whereas, the need to protect our properties from damage or destruction from coastal erosion caused by frequent coastal storms is paramount;

               Whereas, there is substantial public benefit derived from this area by the members of public in addition to those in the Subdivision, this property should remain in sovereign ownership;

Whereas, the LMBPOA was formed in 1968 to represent the interest of the homeowners, maintain the entrance channel and canal and to protect and repair the jetty;

Whereas, the LMBPOA obtained permits from the Army Corps of Engineers, the DEP, Monroe County and the Village of Islamorada in 1970, 1975, 1976, 1980, 1989, 1999, 2013 to repair the jetty and to dredge the adjacent access channel;

Whereas, the IRS on May 16, 1975 acknowledged the activities of the LMBPOA consist of repairing and maintaining the jetty and removing silt from the canals. And that the LMBPOA's primary interest is the maintenance and repair of a piece of commonly owned property and therefore not exempt from federal income tax;

Whereas, the State recognized the Easement leading to the jetty dated 6-9-1982 recorded in OR 857 P 2056-2057. And this easement expressly requires the upland owner to maintain the seawall or the LMBPOA reserves the right to do so if upland owner does not;

Whereas, the State previously recommended, on March 14, 1983, that an Easement by the State to the submerged lands under the jetty would give the LMBPOA the control necessary to maintain and protect the jetty.

Whereas, the LMBPOA relied on the State's representations, on August 14, 1987, that it is in the best interest of the public that jetties on sovereign submerged land remain under public ownership and therefore did not process previous applications for lease or for purchase of the jetty and state lands;

Whereas, the State, on August 14, 1987, had previously determined that the Jetty is a navigational aid and in the public interest;

Whereas, the LMBPOA had paid taxes on the jetty up until 1989;

Whereas, ownership of the jetty, in reliance upon the State’s representation, on August 14, 1987 and October 14, 1987, that the jetty would remain in public ownership, was transferred by the LMBPOA to the State of Florida by deed on January 10, 1989 recorded in OR 1079 P 1607;

Whereas, in 2001, the entrance channel was dredged and jetty repaired at a cost of approximately $375,000;

               Whereas, the LMBPOA has paid for surveys, permits and installation of “private navigational aids” (channel piling markers and light) registered and approved by the US Coast Guard and ACOE adjacent to our jetty;

Whereas, the Board of County Commissioners in 2011 recognized there is no identifiable funding source or agency designated to provide any type of routine maintenance dredging of approach channels (nor by inference; any jetty repair) and recognized the Lower Matecumbe Beach Property Owners Association has an approach channel which has experienced sedimentation and requested funds in rebuilding the jetty adjacent to the approach channel;

Whereas, in 2014, the LMBPOA paid approximately 130,000 to rebuild the jetty;

Whereas, the LMBPOA is currently embroiled in litigation initiated by the upland property owner to prevent access to the jetty;

Whereas, the platted jetty gives an implied easement to the Subdivision;

Whereas, the adjacent property owner has made application in 2014 and 2015 for and continues to attempt to purchase the jetty and State land from the State of Florida, and to deny the homeowners and the Association and the general public access to the jetty;

Whereas, the State in 2014, indicated the jetty is State owned by Quit Claim Deed from the LMBPOA on 1-10-1989, and recorded in Book 1079 Page 1607. Additionally, the jetty is considered to be a shoreline protection structure.

Whereas, the State in 2015, indicated the jetty is State owned by Quit Claim Deed from the LMBPOA on 1-10-1989, and recorded in Book 1079 Page 1607. And the property constituting the State owned jetty is located waterward and adjacent to lands conveyed by the Board of Trustees Deed No. 28258(3730-44) for lands laying above the mean high water line at this site on 9-27-1989. 

Whereas, the intent of the Statute was to allow upland riparian landowners to acquire filled lands adjacent to their property. Attorneys could argue whether Myers even qualifies as an “adjacent” owner;

Whereas, if the jetty is sold, transferred or assigned to the adjacent property owner, he could prevent the homeowners and Association access for recreational purposes and from repairing the jetty and dredging the adjacent channel;

NOW THEREFORE, the Association does hereby authorize the President and Board of Directors to notify the appropriate Departments and Offices of the State of Florida of the following:

               A. OBJECT TO SALE;

B. In the alternative, should the State of Florida desire to sell/transfer the jetty, the Association hereby requests the State require the purchaser to agree to an EXPRESS WRITTEN EASEMENT in favor of the LMBPOA and the homeowners granting unlimited access to the jetty for recreational purposes and for the purpose of protecting, maintaining and repairing the jetty and adjacent approach channel;

C. In the alternative, should the State of Florida desire to sell/transfer the jetty, the Association hereby requests the State provide the LMBPOA with the opportunity to purchase it, as we believe our 1982 recorded easement provides us with sufficient interest to do so;

D. In the alternative, should the State of Florida desire to sell/transfer the jetty, the Association hereby requests the State provide the LMBPOA with the opportunity to lease access on top of the jetty as we believe our 1982 recorded easement provides us with sufficient interest to do so;

E. In the alternative, if the State abandons the jetty, that it specifically includes an easement for the benefit of the homeowners and the Association and LMBPOA requests the State to require, the upland property owner, Myers, to maintain the jetty (and grant an easement). Absent such a requirement, the State would (inadvertently) allow, the upland property owner, Myers to eliminate riparian access by failing to repair and maintain the jetty;

LMBPOA 2016 Board of Directors by Unanimous Agreement

President: Robert Moser

Vice President: John Langston

Sec/Treasurer: Cathy Langston

Director: Richard Manning

Director: Tom Handwork

Director: Paul Garber

Director: Jeanie Dello Joio

Director: George Nassar

Director: Aaron Herwig

LMBPOA is a Non Profit Corporation and our incorporation protects the members from personal liability. Florida Statute 617 governing Non Profit Corporations states in section……617.0604 Liability of MEMBERS — (1) A member of a corporation is not, as such, personally liable for any act, debt, liability, or obligation of the corporation. Members cannot be financially liable. Incorporation protects against individual liability. Furthermore, the LMBPOA maintains a General Liability Insurance Policy and a Directors and Officers Insurance Policy for ALL the Association Members.