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COLUMNS
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Florida Caselaw Update |
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Gary K. Hunter,
Jr. & D. Kent Safriet |
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DEP and the Board of Trustees of the Internal Improvement Trust Fund
Unconstitutionally Applied the Beach and Shore Preservation Act Taking Riparian
Rights Without Just Compensation.
Save Our Beaches, Inc., et al. v. Florida
Department of Environmental Protection, et al., 31 Fla. L. Weekly D1173 (1 DCA,
April 28, 2006).
Two property owner groups challenged the Department of Environmental
Protection’s (DEP) approval of the issuance of a Joint Coastal Permit and
Authorization to Use Sovereign Submerged Lands (collectively “JCP”) for a beach
renourishment project. The groups alleged that DEP’s final order
unconstitutionally applied the Beach and Shore Preservation Act, Part I, Chapter
161, F.S., and, as such, effected a taking of affected coastal property owners’
constitutionally protected riparian rights without just compensation. The
District Court agreed and reversed DEP’s order approving issuance of the JCP.
The District Court first recognized that Rule 18-21.004(3)(b), F.A.C., required
an applicant for a JCP to provide DEP with “satisfactory evidence of sufficient
upland interest” before a JCP can be issued. Thus, before construction can take
place on sovereign submerged lands riparian to uplands, the applicant must show
some type of ownership interest in the riparian uplands. The ALJ and DEP, below,
relied upon the “exception” in Rule 18-21.004(3)(b), F.A.C., that provides
evidence of upland interest is not required where the renourishment project does
not “unreasonably infringe” on riparian rights.
The DCA found, and DEP acknowledged that, through the establishment of the
Erosion Control Line (ECL), the Act eliminates the common law riparian rights to
accretion and reliction as well as the right to have one’s property remain in
contact with the water. The Act requires an ECL to be established which will
have the effect of creating a fixed boundary line demarking private upland
property and state owned land (i.e., it replaces the naturally fluctuating Mean
High Water Line as the property boundary). According to the Act, once the ECL is
established and the beach renourishment project begins, a new dry sand beach
will be established seaward of the ECL which will be owned by the State.
The Court found that this establishment of the ECL results in the Act’s
elimination of constitutionally protected riparian rights and is a taking for
which just compensation must be made. The Court went on to reject DEP’s argument
that there is no “infringement” as the Act’s attempt to “preserve” common law
riparian rights was no preservation at all because Florida law “is clear that
riparian rights cannot be severed from riparian uplands absent an agreement with
the riparian owner, not even by the power of eminent domain.” As a result of the
taking of constitutionally protected riparian rights, the Court found the JCP
“unreasonably infringed” on the riparian owners rights and the applicants were
required to show “satisfactory evidence of sufficient upland interest” before a
JCP could be issued. The District Court further held the ECL invalid to the
extent it showed a boundary different that the Appellants’ members’ deeds.
Settlement of Claim Pursuant to The Bert J. Harris, Jr., Private Property Rights
Protection Act, Section 70.001, F.S., Does Not Require Filing of Formal Suit.
Charlotte County Park of Commerce, LLC v. Charlotte County, Florida, 31 Fla. L.
Weekly D1270 (2d DCA, May 5, 2006).
In prior litigation, Charlotte County Park of Commerce, LLC (CCPC), obtained a
preliminary injunction against Charlotte County ordering the County to take
certain steps to complete a permit approval process. The parties eventually came
to a settlement agreement in which both agreed to resolve all claims and issues,
allegedly including those pursuant to the Bert J. Harris, Jr., Private Property
Rights Protection Act, Section 70.001 F.S., raised in present and future
proceedings. Prior to the settlement, CCPC put the County on notice of a Harris
Act claim but never formally filed a lawsuit due to the Harris Act’s presuit
notice procedures.
In the instant litigation, CCPC sought a writ of mandamus to compel the County
to file pleadings in order to obtain court approval of the earlier settlement
agreement and sought a declaration of its rights under the Harris Act. The trial
court ruled that the earlier settlement agreement did not include a valid Bert
Harris claim because no suit had ever been filed and thus no case existed to
settle. The District Court reversed and remanded, holding that CCPC was not
required to file suit in order to settle its Harris Act claim. The Court noted
that the Harris Act specifically provides for resolution of claims during the
mandatory presuit period without the necessity of a formal pleading order to
validate a claim.
Easement Providing Access to Navigable Waters Necessarily Conveys Associated
Riparian Rights.
Brannon v. Boldt, 31 Fla. L. Weekly D1260 (2d DCA, May 5,
2006).
Subdivision landowners sought to enforce a 22 foot wide by 347 foot long
easement running over a neighboring landowner’s property to Boca Ciega Bay for
means of “ingress, egress, and utilities.” The landowner across whose land the
easement ran sought to extinguish the easement. While the language of the
easement was unambiguous, the question presented was whether the easement
holders enjoyed the full easement rights including the appurtenant riparian
rights. The District Court affirmed the trial court’s decision, holding that an
easement providing ingress and egress over land reaching navigable waters
necessarily conveys the riparian rights associated with those lands.
Court Finds Water Body Erroneously Included in City’s Permitted Density
Calculations.
Marina Grande North Miami Beach, LLC v. Smukler, 31 Fla. L. Weekly
D1145 (3d DCA, April 26, 2006).
A citizens group challenged the City of Miami Beach’s rezoning and site plan
approval for the construction of two multi-family high-rise towers and an
adjacent marina. The circuit court held that the City erroneously included the
acreage of an adjacent water body in calculations of the permitted density of
the development. The District Court affirmed, holding that the City’s Land
Development Code prohibited the City’s inclusion of adjacent water bodies (or
internal roads) in calculating the maximum number of dwelling units permitted
for the development. As such, the City’s density calculation violated the City’s
Land Development Code.
Court Denies Class Certification Due to Developers’ Failure to Meet Predominance
Requirement.
Seminole County v. Tivoli Orlando Associates Ltd., 31 Fla. L.
Weekly D522 (5 DCA, February 17, 2006).
A real estate developer challenged, as arbitrary and capricious, Seminole
County’s calculation of building permit fees and water and wastewater impact
fees with respect to two apartment building projects. In addition, the developer
sought certification of a class action. The circuit court entered an order
certifying a class of all developers and builders who had paid fees to Seminole
County under the new fee structure. On appeal, the District Court reversed.
The District Court’s reversal of the certification order was appropriate because
the trial court failed to hold an evidentiary hearing to find facts to support
or negate the certification. The Court also found that the developer failed to
meet the predominance requirement, which requires that common questions of law
or fact predominate over individual questions, because differences as to each
developer and builder’s fee payments (which varied with single family,
multi-family or commercial buildings) would overwhelm any common issue.
Homeowners’ Association Could Not Demand Removal of Energy Devices Protected by
Chapter 163, F.S. Homeowners Entitled to Attorney Fees.
Sorrentino v. River Run
Condominium Assoc’n, 31 Fla. L. Weekly D679 (5th DCA, March 3, 2006).
Homeowners installed skylights in the roof and ceiling of their condominium unit
without obtaining prior approval from the Condominium Homeowners’ Association.
The Association sought to compel the homeowners to remove the skylights because
they were allegedly installed in derogation of the Condominium Declaration. The
homeowners argued the skylights were “solar collectors” and, pursuant to Chapter
163, F.S., no covenants or deed restrictions could prohibit installation of such
energy devices. While the circuit court issued an injunction prohibiting the
Association from requiring the removal of the skylights, it did not award
attorney fees to either party, finding no prevailing party.
On appeal, the District Court upheld the injunction, stating that if the
skylights were protected by Chapter 163, then the Association could not
unreasonably deny permission to install them, nor require the homeowners to
remove them, once installed. The District Court reversed the circuit court’s
denial of attorney fees, holding that the homeowners had prevailed on all
significant issues raised at trial, and therefore were entitled to an award of
reasonable attorney fees.
Gary K. Hunter, Jr. is a Shareholder with Hopping Green & Sams, P.A. in
Tallahassee, Florida. He received his B.B.A. and J.D. from the University of
Georgia. D. Kent Safriet is an Associate with Hopping Green & Sams, P.A. in
Tallahassee, Florida. He received his B.S. from Clemson University and his J.D.
from the University of South Carolina. Mr. Hunter and Mr. Safriet practice
primarily in the areas of environmental, land use and property rights law.
