Florida Court Rules Restoration Project a Taking
Beach Project Infringed on Riparian Rights

Save our Beaches, Inc. v. Fla. Dept. of Envtl. Protection, 2006 WL 1112700 (Fla. App. April 28, 2006)

Josh Clemons

Beachfront landowners in Florida challenged a state administrative agency’s decision to grant a permit for a beach restoration project on the grounds that it effected an unconstitutional taking of their property without compensation. The District Court of Appeal of Florida, First District, ruled in favor of the property owners and reversed the agency’s decision.

Background
Hurricane Opal lashed the northern Gulf Coast in 1995, leaving extensive erosion in its wake. In 2003, after careful study, the City of Destin and Walton County applied to the Florida Department of Environmental Protection (DEP) for a Joint Coastal Permit and Authorization to Use Sovereign Submerged Lands so that they could begin a project to restore their fabled white sand beaches. The permit would allow Destin and Walton County to dredge and transport sand from a borrow area in neighboring Okaloosa County to rebuild the eroded shorelines.
In 2004 DEP issued a Notice of Intent to issue the permit. Two groups of property owners, Save Our Beaches (SOB) and Stop the Beach Renourishment (STBR), filed a petition for an administrative hearing to challenge the permit. They also filed a petition with Florida’s Internal Improvement Fund, which manages public trust lands, to challenge the establishment of the county erosion control line.

SOB was a group of approximately 150 people who owned beachfront properties in Destin. STBR was made up of six people who owned beachfront property in the area of the proposed project.

When the complaints went before the administrative law judge (ALJ)1 the issues were whether the city and county had reasonably assured that applicable water quality standards would be preserved, and whether the city and county had acquired the private property rights necessary to go forward with the project. The ALJ determined that water quality was reasonably assured, and recommended that the permit be issued. Accordingly, DEP issued the permit.

The joint permit was comprised of two individual permits and an authorization, all of which are governed by different Florida statutes and regulations. The individual permits were a coastal construction permit and a wetland/environmental resource permit. The authorization would allow the city and county to use the state’s sovereign submerged lands.

The Florida Administrative Code (FAC) allows for these joint permits to issue when various conditions are met. FAC Rule 18-21.004(3)(b) states: “[s]atisfactory evidence of sufficient upland interest is required for activities on sovereignty submerged lands riparian to uplands” except in cases where “a governmental entity conducts restoration and enhancement activities, provided that such activities do not unreasonably infringe on riparian rights.” Riparian rights are the property rights that accompany ownership of land that borders water. SOB and STBR asserted that the project unreasonably infringed on their members’ riparian rights, and the city and county had not shown sufficient upland interest. The specific riparian right at issue was the right to accretion; that is, the right to the extension of one’s riparian lands by the natural addition of sand.

The DEP had determined that the project did not unreasonably infringe on the landowners’ common-law right to accretion because a Florida statute mandates the establishment of an erosion control line before a restoration project may commence.2 The erosion control line fixes the boundary between private riparian land and state sovereignty land. However, another section of the statute divests the riparian owner of the common-law riparian right to accretions after the erosion control line has been fixed. The DEP recognized this fact, but nonetheless concluded that there was no unreasonable infringement of riparian rights because the infringement was authorized by statute. The ALJ affirmed the DEP’s conclusion, with the caveat that there was no unreasonable infringement of riparian rights assuming the statute was constitutional. The ALJ could not rule on the constitutionality of the statute because an administrative body does not have the authority to do so. The permit was issued.

The Court’s Analysis
The court first faced the threshold issue of SOB’s and STBR’s standing to bring suit, which was challenged by DEP. When organizations challenge an agency decision in court they must be able to prove “associational” or “organizational” standing; that is, they must show that their individual members are or will be adversely affected by the decision. The court found that SOB lacked standing because its members did not own property in the area that would be affected by the project. All of STBR’s members, on the other hand, owned property that would be directly affected by the project. STBR was therefore allowed to proceed with its constitutional claim.

STBR challenged the DEP’s issuance of the permit as an unconstitutional taking of private riparian property rights without just compensation. Riparian rights include the right to receive accretions to that land (as well as the corresponding risk of losing property by natural erosion). In Florida, the boundary between private riparian property and the state’s sovereign land is usually the ordinary high water mark, which migrates over time as sand is added or removed by natural forces. As the boundary moves, the landowner’s property at all times retains contact with the water.

However, as described above, a Florida statute requires that the boundary line be fixed before a restoration project takes place. Any accretion that occurs after the line is fixed will eliminate the riparian owner’s contact with the water. In addition, the landowner is deprived of the right to accreted land. These were the specific property interests that STBR argued were unconstitutionally taken.

The court agreed with the landowners. DEP’s final order approving the permit worked to deprive STBR’s members of their riparian rights. Under Florida law, the government is prohibited from taking riparian rights without the landowner’s agreement, even when the power of eminent domain is exercised. Because this taking was clearly an unreasonable infringement on riparian rights, the city and county would have to provide satisfactory evidence of sufficient upland interest in accordance with FAC Rule 18-21.004(3)(b).

Conclusion
The court reversed DEP’s final order approving the permit and returned the issue to the agency to prove sufficient upland interest. The court also declared invalid the state’s determination of the erosion control line, to the extent that it differed from the deeds of STBR’s members.

Endnotes
1. An ALJ has duties and powers similar to those of a judge in a civil or criminal court, but he or she is a member of the executive branch of government instead of the judicial branch and presides only over the proceedings of administrative agencies.
2. Fla. Stat. § 161.141.

University of Mississippi