Vol. XXXV, No. 3 THE REPORTER March 2014

THE ENVIRONMENTAL AND LAND USE LAW SECTION

Nicole C. Kibert, Chair • Jeffrey A. Collier, Co-Editor • Christopher E. Cheek, Co-Editor www.eluls.org

Feeling the Squeeze: The Troubled Future of Lateral Beach Access In Florida by Carly Grimm, Amanda Broadwell & Thomas T. Ankersen1

“No part of Florida is more exclusively condominium. Faced with the chal- and coastal armoring interrupt public hers, nor more properly utilized by her lenge of wading through the turbid access along Florida’s shores. Of the people than her beaches.”2 ocean surf, the beachgoer instead state’s 825 miles of sandy beaches, works her way up a dune at the edge over 485 miles, nearly 60 percent, are Introduction of the revetment and begins walking experiencing erosion.3 Absent human A beachgoer strolling down the along the narrow cap of the seawall, interference, beaches tend to natu- beach spots a large obstruction in anxious to return to the sandy beach rally migrate inland as higher water the distance. As she nears the barrier, several hundred feet away. Midway levels erode the shoreline.4 Intensive it takes the shape of a large rocky through her journey, a man who has development along Florida’s coasts outcropping protruding into the tide, been relaxing by the condominium’s and the construction of seawalls and waves crashing against it in a con- pool shouts at her to get off the prop- revetments has arrested this process, fused swirl of shallow whitewater. The erty. She is trespassing, he screams. resulting in a phenomenon ecologists obstacle is a revetment, engineered This is a true story, at least in its have termed “coastal squeeze.” Now, to absorb and deflect wave energy essential facts, and is one likely to be met with an increasingly immobile before it hits an adjacent seawall, increasingly reenacted over the com- shoreline, rising seas are gradually which dutifully protects a multistory ing decades as rising tides, erosion, swallowing up the beaches that have See “Feeling the Squeeze,” page 18

From the Chair by Nicole C. Kibert

Hello ELULS Members and wel- will be available soon! Following the come to 2014! It’s only February and CLE, your hardworking Executive INSIDE: ELULS has already had a busy year! Council members spent the weekend On January 30, 2014, we had an Ex- engaged in long range planning led DEP Update...... 3 ecutive Council Meeting in conjunc- by Chair Elect, Kelly Samek. We thor- tion with a packed networking recep- oughly reviewed section activities The New Phase I ESA Standard: When tion at Tampa Bay Brewing Company. and programs including a complete Can a Historical REC be a REC?...... 6 The next day on January 31, 2014, the review of the section’s Treatise with Florida Case Law Update...... 7 section hosted a CLE program with Treatise Chair, Janet Bowman, to be RPPTL, “Emerging Trends on the De- sure we are keeping up to date and On Appeal...... 11 velopment Front for Environmental, adding timely articles. Brochure - Environmental and Land Use Land Use and Real Estate Practi- We are pleased to announce that Law Audio Webcast Series...... 13 tioners” at Tampa Airport Marriott. our Environmental and Land Use Chaired by Vinette D. Godelia, this Law Audio Webcast Series begins Law School Liaisons year’s program featured an updated February 18, 2014. You can register A Spring 2014 Update from the Florida State University College of Law...... 15 format for this popular program and for a single program or the whole UF Law Update...... 16 the recorded version of the program series. Here’s the schedule of events: See “Chair’s Message,” page 2 CHAIR’S MESSAGE - Peter Anderson, Geosyntec information. There are some sponsor- from page 1 Consultants ship opportunities available for our next networking reception in South Note: All webinar presentations are Florida in March 2014. Please contact scheduled to occur between 12:00 noon Calbrail Bennett at CBennett@flabar. • February 18, 2014 - Update on and 1:00 p.m. Eastern. For more in- org for more information. Water Use Issues from Around formation, please review the program You are welcome to attend meet- Florida information sheet at: http://eluls.org/ ings of the Executive Council. The - Timothy J. Perry, Oertel, Fernan- wp-content/uploads/2013/12/1626- remaining 2013-2014 meeting dates dez, Bryant & Atkinson, P.A. Webseries.pdf. for the ELULS Executive Council are - David Macintyre, PB Water listed below: As always special thanks to our • March 20, 2014 - Managing Large 2013-2014 ELULS sponsors for their • April 2014 (date to be deter- Scale Development for the Long support this year. mined) – Orlando, FL Term -- Sector Planning in Osceola • June 26, 2014 – Gaylord Palms County Platinum Level Resort, Orlando (in conjunction - Vivien J. Monaco, Burr & For- ARCADIS with The Florida Bar Annual man LLP Geosyntec Consultants Convention) - Jeff Jones, Osceola County Golder Associates, Inc. • August 6, 2014 (4:00 p.m.) – Omni Amelia Island Plantation • April 17, 2014 - Everyday Eth- Gold Level ics: The Most Common Errors At- Breedlove, Dennis & Associates, Inc. Also, feel free to visit the section web- torneys Make (and how to avoid Cardno TBE site http://eluls.org at anytime for them) Carlton Fields, P.A. information about section events and - Elizabeth Clark Tarbert, Ethics E Sciences, Inc. committee activities. Did you know Counsel, The Florida Bar Environmental Consulting & Tech- the section has several committees nology, Inc. focused on substantive areas of envi- • May 20, 2014 - Annual Legislative GrayRobinson, P.A. ronmental and land use law? You can Wrap Up HSW Engineering, Inc. read all about each committee and - Janet E. Bowman, Nature Lewis, Longman & Walker, P.A. their activities on our website. Conservancy Robert N. Hartsell, P.A. Finally, be sure to add August 7-9, - Gary K. Hunter, Jr., Hopping 2014 to your calendar for the ELULS Green & Sams Silver Level Annual Update’s return to Amelia The Byrd Law Group Island Plantation. We have some • June 19, 2014 - Air Law Hot Topics: Water and Air Research, Inc. unique events planned for this spe- Fine Particulate Emission Limits, cial occasion that you will not want NSR Enforcement and More If you are interested in sponsor- to miss! More to come on that in the - Dorothy E. Watson, Foley & ing the section, please visit http:// next issue of the Reporter and also Lardner LLP eluls.org/our-sponsors/ for more via the member e-newsletter.

This newsletter is prepared and published by the Environmental and Land Use Law Section of The Florida Bar. Nicole C. Kibert, Tampa...... Chair Kelly K. Samek, Tallahassee ...... Chair-elect Carl Eldred, Tallahassee ...... Secretary Vivien J. Monaco, Orlando...... Treasurer Jeffrey A. Collier, West Palm Beach...... Co-Editor Visit the Christopher E. Cheek, Miami ...... Co-Editor Environmental and Colleen Bellia, Tallahassee...... Production Artist Calbrail L. Bennett, Tallahassee ...... Section Administrator Land Use Law Section’s website at: Statements or expressions of opinion or comments appearing herein are those of the contributors and not of The Florida Bar or the Section. http://eluls.org

2 DEP Update by Randy J. Miller, II, Senior Assistant General Counsel

Rulemaking Update: has been established at http://www. not become effective until ratified by Chapter 62-780, F.A.C., AIF Peti- dep.state.fl.us/water/wetlands/miti- the legislature. tion Rulemaking: The DEP’s Divi- gation/umam/rule.htm. sion of Waste Management recently Chapter 62-771 and 62-772, Petro- Numeric Nutrient Criteria: completed Phase 2 of the Chapter leum Restoration Program: On May As a result of a federal lawsuit, 62-780 Rulemaking (Phase 1 was the 30, 2013, the Division published a EPA made a necessity determina- “merger” of the four contaminated Notice of Rule Development to amend tion in 2009 that numeric nutrient site cleanup rule chapters into one). Chapter 62-771, F.A.C., and to cre- criteria are necessary for the major- Phase 2 rulemaking for Chapter ate a new Chapter 62-772, F.A.C., in ity of surface waters in Florida, and 62-780, F.A.C., involved proposed the Florida Administrative Register. entered into a consent decree under changes in response to a Petition Chapter 62-771, F.A.C., related to which it set a schedule to establish filed by the Associated Industries the priority ranking of petroleum such criteria. Since that time, the of Florida (AIF) relating primarily contaminated sites, was amended Department has adopted numeric to probabilistic risk assessments for development of a definition of nutrient criteria (NNC) for lakes, and the criteria for establishing al- “Imminent Threat”; and to establish springs, estuaries, coastal waters, ternative cleanup target levels at procedures to re-score a petroleum and a majority of its streams. EPA contaminated sites. The Notice of contaminated site based on site spe- has approved these criteria as being Proposed Rule (NPR) was published cific data. Chapter 62-772, F.A.C., consistent with the Clean Water Act. in the FAR in September 2013, and was created to codify procedures On November 30, 2012 and June no one requested a hearing; however, for the competitive procurement of 28, 2013, EPA signed revised deter- the Joint Administrative Procedures contractual services for the cleanup minations that removed a limited Committee (JAPC) requested sev- of state-funded petroleum contami- subset of waters from its original eral changes. All JAPC issues were nated sites, including the establish- determination. It then filed with the resolved, and the DEP published ment of: minimum qualifications for court a motion to modify the consent its Notice of Change in December contractors to perform rehabilitation decree to make the decree consistent 2013. The Chapter 62-780, F.A.C., activities; procedures for the evalua- with the necessity determination as Certification Package was signed tion of contractor performance; and revised. On July 30, 2013, the Depart- by the Secretary and filed with the procedures for the procurement of ment filed an amicus brief with the Department of State in mid-January, petroleum contaminated site reha- court in support of EPA’s motion. On and the final rule became effective on bilitation services for state funded January 7, 2014, the court granted February 4, 2014. cleanup, including procedures to pro- EPA’s motion to modify. Chapter 62-345, Uniform Mitiga- cure multiple agency term contrac- By granting EPA’s motion, the tion Assessment Method (UMAM): tors. The Department held a rule court has set the stage for Florida’s The Department published a Notice workshop in Orlando, Florida on NNC to go into effect. Section 3 of of Rule Development for Chapter June 19, 2013. On October 4, 2013, Chapter 2013-71, Laws of Florida, 62-345, F.A.C., in May of 2013. This the Department published a Notice allows Florida’s adopted NNC to rulemaking seeks to refine the meth- of Proposed Rule and held a rule become effective once EPA ceases od to enhance clarification and con- hearing on October 28, 2013. After further nutrient rulemaking in the sistency, and, among other goals, to receiving public comments and com- State, EPA withdraws its federally provide better guidance on applying ments from the Joint Administrative promulgated NNC for Florida in 40 the method to benthic communities. Procedures Committee the Depart- C.F.R. § 131.43, and the Department The first rule workshop was held in ment published a Notice of Change on notifies the Department of State that June, with a follow-up held in De- November 18, 2013 and on December EPA has completed the actions set cember. The Department continues 5, 2013. The rules were filed for adop- forth in Chapter 2013-71. Modifica- to seek comments, suggestions, and tion with the Department of State tion of the consent decree provides concerns from all stakeholders before on December 27, 2013. A majority of the legal basis for EPA’s cessation it begins to draft rule amendments. the rule sections became effective on of further nutrient rulemaking in A website providing updates on the January 16, 2014, however Rule 62- Florida. Federal repeal of 40 C.F.R. rulemaking and contact information 772.300 and 62-772.400, F.A.C., will § 131.43 must go through normal continued...

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3 DEP UPDATE DEP case adopting the ALJ’s recom- conservation of fish and wildlife by from page 3 mendation to deny the permit appli- eliminating the Creek or permanent- cations. No appeal was filed. ly reducing its natural dimensions so that the uses of the Creek by fish Save Our Creeks, Inc. and Environ- and wildlife are also eliminated or mental Confederation of Southwest substantially reduced. The ALJ found federal rulemaking steps and is an- Florida, Inc. vs. Florida Fish and that the proposed modification would ticipated to take a number of months. Wildlife Conservation Commission adversely affect navigation and the and Department of Environmental flow of water in Fisheating Creek, Litigation: Protection, DOAH Case No. 12-3427 and that it failed to restore the func- Angelo’s Aggregate Materials vs. The Department issued to Flor- tions performed by the pre-disturbed DEP, DOAH Case No. 09-1543, 1544, ida Fish and Wildlife Conservation Creek. The ALJ concluded that the 1545, 1546 Commission (Respondent), in May proposed modification is contrary to In 2006, Angelo’s applied to the 2011, a Consolidated Environmen- the public interest. The ALJ further Department to construct and oper- tal Resource Permit and Sovereign concluded that the proposed modifica- ate a 30 acre Class I landfill on its Submerged Lands Authorization tion failed to meet the criteria in rule property in Pasco County. On Febru- (Permits). The Permits authorized 40E-4.301(1), Florida Administrative ary 12, 2009, the Department issued the installation of six earthen check Code (“F.A.C.”), to provide reasonable a Notice of Intent to Deny Angelo’s dams on Fisheating Creek to prevent assurance that the proposed project permits. Angelo’s filed a petition for the over-draining of Cowbone Marsh, would not adversely affect storage hearing to contest the denial of its through which Fisheating Creek and conveyance capabilities, would applications. A number of parties runs. The work was completed later not cause adverse secondary impacts, filed petitions for hearing in sup- that year. The work became neces- and would function as proposed. port of the denials, and intervened sary after the Respondent contracted, The ALJ concluded that the pro- at DOAH in support of the denials. in April 2010, with A & L Aquatic posed modification failed to meet the A Final Hearing was held in Tampa Weed Control (“A & L”) to “[m]echani- requirements of rule 18-21.004(1), before Administrative Law Judge cally dismantle floating tussocks” by F.A.C., that activities on sovereignty (ALJ) Bram Canter. The parties “shredding vegetation and accumu- land not be contrary to the public submitted proposed recommended lated organic material to re-open the interest, and that the authorization orders, and the ALJ issued the rec- navigation across Cowbone Marsh.” “contain such terms, conditions, or ommended order on June 28, 2013. Approximately two miles of Fisheat- restrictions as deemed necessary The ALJ determined that Ange- ing Creek that runs through Cowbone to protect and manage sovereignty lo’s hydrogeological and geotechnical Marsh was dredged by a “cookie-cut- lands.” The ALJ further concluded investigations did not adequately ter” machine. The Department and that the proposed modification failed define the proposed landfill site’s the United States Army Corps of to meet the requirement of rule 18- geology and hydrology and its re- Engineers (“USACOE”), in July 2010, 21.004(2), F.A.C., that sovereignty lationship to the local and regional ordered Respondent to stop the proj- lands be “managed primarily for the hydrogeologic patterns, as required ect due to its adverse environmental maintenance of essentially natural by rule 62-701.410(1)(a), F.A.C. The impacts, including the draining of conditions, propagation of fish and ALJ found that without an adequate Cowbone Marsh. The Department wildlife, and traditional recreational geotechnical investigation, Angelo’s approved Respondent’s application, uses such as fishing, boating, and failed to insure that the integrity on September 10, 2012, to modify swimming.” of the structural components of the the initial permits. The modification landfill would not be disrupted. The would allow Respondent to backfill National Parks Conservation Asso- ALJ found that the proposed land- approximately two miles of Fisheat- ciation & Sierra Club v. EPA & Re- fill site is unstable because the evi- ing Creek. Save Our Creeks, Inc., gina McCarthy (11th Circuit Court dence indicated loose soils, raveling, and Environmental Confederation of of Appeals) and sinkhole activity. The ALJ found Southwest Florida (Petitioners) time- On September 30, 2013, the Envi- that Angelo’s did not demonstrate ly filed a petition for administrative ronmental Protection Agency’s (EPA) that proposed engineering measures hearing that was referred to DOAH to approval of Florida’s Regional Haze would overcome the instability and conduct an evidentiary hearing and State Implementation Plan (SIP) be- make the site suitable for a land- issue a recommended order. came effective. The SIP addresses the fill. Thus, the ALJ concluded that The Final Order adopts the ALJ’s provisions of the Clean Air Act (CAA) Angelo’s did not provide reasonable recommendation to deny the request- that require states to remedy and assurance that the proposed landfill ed modification to Respondent’s En- prevent anthropogenic impairment liner system would be installed upon vironmental Resource Permit and of visibility in mandatory Class I ar- a base and in a geologic setting ca- Sovereignty Submerged Lands Au- eas (national parks and wilderness pable of providing structural support thorization. The ALJ found that the areas) caused by emissions of air pol- as required by rule 62-701.400(3)(a), proposed modification would adverse- lutants from numerous sources lo- F.A.C. ly affect public welfare by impairing cated over a wide geographic area. In On September 16, 2013, the De- navigation and recreation on Fish- October, Petitioners filed a Petition partment issued the Final Order in eating Creek. The proposed modi- for Review with the 11th Circuit. The the Angelo’s Aggregate Materials vs. fication would adversely affect the Department has moved to intervene,

4 as has the Environmental Commit- Apalachicola Region and precipitated overall depletive water uses at the tee of the Florida Electric Power a collapse of Florida’s oyster fish- level existing on the date the states Coordinating Group. On December ery. The federal government recently first entered into a Memorandum of 6, the Petitioners and EPA filed a recognized the collapse and issued a Agreement to commit to a process for joint motion for a stay of proceedings fishery disaster declaration for the cooperative management and devel- in the case pending the outcome of a oyster industry in Florida. opment of regional water resources decision in a related case pending in Georgia’s overconsumption of wa- (January 3, 1992). another Circuit Court. On December ter stems from numerous municipal, Georgia filed its response on Janu- 26, 2013, the court granted the joint industrial, recreational and agricul- ary 30, 2014, asking the Supreme motion to stay and required Peti- tural uses within the state, including Court to deny Florida’s request to be tioners and EPA to submit monthly withdrawals from the upper-Chatta- heard, arguing that Florida should status reports to the court. There is hoochee River for the metro-Atlanta wait until the U.S. Army Corps of no time limit for the court to rule on region. Georgia estimates those with- Engineers completes its update to the Department’s pending motion to drawals will nearly double by 2040. the ACF River Basin Master Manual intervene; it may choose to wait until If Georgia’s consumption increases for operation of the five federal res- the stay is lifted before ruling on that as planned, the source of fresh water ervoirs. Georgia also alleged that motion. sustaining the Apalachicola River Florida failed to show substantial and Bay will shrink further, jeop- injury, ignoring Florida’s allegations Apalachicola-Chattahoochee-Flint ardizing the viability of the Apala- of harm to state resources, such as (ACF) River Basin Litigation chicola Region’s ecology, economy, and the Apalachicola oyster fishery. The waters of the Chattahoochee way of life. Florida’s reply, filed February 10, and Flint River Basins provide essen- On August 13, 2013, Governor explained that the Master Manual tial inflows to the Apalachicola River Scott announced that Florida would update cannot resolve the water dis- and Florida’s Apalachicola Bay, home file an Original Action in the U.S. pute because the Corps has no au- to a historic and once-thriving oyster Supreme Court seeking injunctive thority to adjudicate water rights. industry. Oysters in the Bay depend relief against Georgia’s unmitigated Florida’s reply also informs the Court on freshwater flows from the Apala- and unsustainable upstream con- that Georgia has long acknowledged chicola River to maintain the neces- sumption of water from the Chat- only an equitable apportionment sary salinity conditions to survive. tahoochee and Flint River Basins. can resolve this dispute and that The Apalachicola Region’s ecosystem The U.S. Supreme Court has original the Supreme Court is the only court and economy are suffering serious and exclusive jurisdiction over all able to address underlying water harm because of Georgia’s increasing controversies between two or more rights between the states. The reply storage and consumption of water States. The complaint was filed on reiterates that Florida has properly from both the Chattahoochee and October 1, 2013 and Florida asks the pled harm of a serious magnitude to Flint River Basins. Flow depletions Supreme Court to enjoin Georgia Florida’s economy, environment and from the Georgia portion of the ACF from interfering with Florida’s right its people and that the complaint Basin have already shrunk available to an equitable share of the inter- justifies the exercise of the Supreme riverine and estuarine habitats in the state river flows and to cap Georgia’s Court’s jurisdiction.

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5 The New Phase I ESA Standard: When Can a Historical REC be a REC? by Kaitlyn S. Rhonehouse, P.E. with Geosyntec Consultants

In November 2013, ASTM released regulatory authority, without subject- Environmental Protection’s (FDEP) the E1527-13 Standard for conduct- ing the property to any required con- Groundwater Cleanup Target Level ing a Phase I Environmental Site trols.” This new definition limits an (GCTL) for arsenic provides an ex- Assessment (ESA). This new Stan- HREC designation to contamination ample of the importance of carefully dard included several key changes to matters where an “unconditional clo- evaluating a site’s unconditional regu- the prior version of E1527 that was sure” was issued for the release and latory closure. The GCTL for arsenic published in 2005. The Federal All the regulatory agency concluded no was previously set at a target con- Appropriate Inquiries rule (aka AAI contamination remained at the prop- centration of 50 micrograms per liter rule) currently recognizes E1527-13 erty as a result of the past release. (µg/L) up until 2005, which meant that as a method by which a Phase I ESA The HREC definition also prompts properties that had concentrations of can be completed to help demonstrate the environmental professional (“EP”) no more than 50 µg/L in groundwa- AAI. A key goal of performing a Phase to evaluate whether the past release ter received unconditional regulatory I ESA is to identify recognized envi- may also be a REC: “Before calling the closure for arsenic. In 2005, the GCTL ronmental conditions (“RECs”), as past release a historical recognized was reduced from 50 µg/L to 10 µg/L. defined by E1527-13, which represent environmental condition, the environ- FDEP did not require the “reopening” certain environmental liabilities as- mental professional must determine of closed sites with groundwater con- sociated with a property. One of the whether the past release is a recog- centrations greater than 10 µg/L; how- key changes in the new Phase I ESA nized environmental condition at the ever, there are closed arsenic-affected standard is the updated definition of time the Phase I Environmental Site properties in Florida where concentra- a “historical REC” or “HREC.” Assessment is conducted (for example, tions of arsenic above 10 µg/L remain Previously, the term HREC was if there has been a change in the regu- in groundwater. sometimes used to refer to properties latory criteria). If the EP considers the Arsenic is one of a number of ex- with regulatory closures where con- past release to be a recognized environ- amples wherein it is important, with tamination remained at the property mental condition at the time the Phase this new Phase I ESA standard, to but had been addressed through the I ESA is conducted, the condition shall carefully evaluate each unconditional use of engineering and/or institu- be included in the conclusions section closure to assess whether previously tional controls. The new standard of the report as a recognized environ- detected contaminant levels in the has redefined the term HREC to re- mental condition.” In other words, ground meet current (and possibly fer to a “past release of any hazard- before concluding an HREC exists, more stringent) cleanup requirements. ous substances or petroleum products the environmental professional must This new HREC feature could require that has occurred in connection with assess whether the past release may the need for potentially costly file re- the property and has been addressed also be a REC based on current regu- views in cases where environmental to the satisfaction of the applicable latory criteria which provide a more documents are not readily available regulatory authority or meeting unre- stringent cleanup level. on the internet, such as in the case of stricted use criteria established by a The Florida Department of FDEP files that cannot be accessed on the online Oculus database site. It can also mean informing a client that a site which is being considered for acquisition was previously deemed “clean” or “closed” by the regulatory agency but would not meet present www.FloridaBar.org/CLE closure requirements based on cur- rent cleanup criteria. It is important • Quality Speakers that the EP, as well as the involved • Online Registration attorney, are aware of this need to • Convenient Locations further evaluate contaminated site closures in the Phase I ESA process • CLE Certification Credit to assess whether an HREC could • Audio CDs / Video DVDs also be considered a REC, as well as to • Live Webcasts communicate these possible concerns to the user of the Phase I ESA. • 24/7 Online CLE Endnote: 1 FDEP Chapter 62-777, Florida Administra- FOR THE BAR. BY THE BAR. tive Code.

6 Florida Case Law Update by Gary K. Hunter, Jr. & Thomas R. Philpot, Hopping, Green & Sams, P.A.

When a beneficial use determina- The special master’s recommendation the City to delay the processing of tion is delayed by a county and was informed, in part, by the record the BUD application, and thereafter a city following comprehensive showing the Beyers demonstrated no claim laches or an expiration of the plan changes, the subsequent as- development activity for more than limitations as a defense, would be sertion of a defense of laches in 30 years despite increasingly strict patently unfair, if not absurd. Re- an inverse condemnation suit is land use regulations. gardless, under the “tipsy coachman” patently unfair to a landowner The Beyers’ initial suit claimed a doctrine, the Third DCA held the seeking relief. Nevertheless, the per se, facial taking, which was ruled judgment of the trial court was still landowner must still show evi- on summary judgment in favor of the supported by the record. dence of deprivation of reason- City based on a statute of limitations. able economic use or frustration The Third District Court of Appeal Legislative history demon- of reasonable investment-backed (Third DCA) reversed and remanded, strates the 2012 amendment to expectations to succeed in an “as holding the Beyers’ claim was not § 163.3167(8), Florida Statutes, applied” takings claim. Beyer v. barred by the statute of limitations reaffirmed a longstanding prohi- City of Marathon, 38 Fla. L. Weekly for an as applied, rather than facial, bition on public referenda for lo- D2286 (Fla. 3d DCA 2013). takings claim. (See, Beyer, et al. v. City cal development orders except as The Beyers purchased a nine-acre of Marathon, 37 so. 3d 932 (Fla. 3d grandfathered in specific charter parcel of underdeveloped property DCA 2010)). Again on remand, the provisions effective as of June 1, on Bamboo Key in 1970. At the time trial court entered summary judg- 2011. Archstone Palmetto Park, LLC of purchase, the property was zoned ment, citing the Beyers’ failure to v. Kennedy, 2014 WL 305086 (Fla. 4th for General Use, which permitted produce evidence of how the land use DCA 2014). one single family home per acre. The regulations deprived their reasonable In February 2012, the City of Boca property rezoned in 1986 to Con- economic use of the property or frus- Raton (City) adopted Ordinance 5203, servation Offshore Island, limiting trated their reasonable investment- which amended a previously ap- development to one dwelling per 10 backed expectations in the property. proved development order by setting acres. Ten years later, the property The trial court also ruled that the additional requirements for a four- was designated as a bird rockery with takings claim was barred by the doc- acre parcel of land owned by Arch- the adoption of the Monroe County trine of laches, asserted by the City, stone. The ordinance, though styled Comprehensive Plan, a classification where the Beyers’ thirty-year delay as an amendment, was considered by that allowed camping but no develop- in pursuing development on the prop- both parties to be a development or- ment. From the date of purchase to erty resulted in prejudice to the City. der. A group of Boca Raton residents the adoption of the comprehensive Under de novo review, the Third DCA filed a petition seeking a referendum plan, the Beyers demonstrated no determined that the Beyers’ reliance as to whether the ordinance should evidence of a specific plan for develop- on a subjective expectation that the be repealed. The petition was filed ing the property. land could be developed in the ab- pursuant to section 6.02 of the City’s In 1997, the Beyers submitted an sence of zoning ordinances did not charter which gave the citizens a gen- application for a Beneficial Use De- equip the Beyers with a vested right eral power of referendum with regard termination to Monroe County. By to development. Furthermore, the to the passage of city ordinances. 1999, no action on the BUD had been dock application submitted by the In 2012, the Florida Legislature taken, and the City of Marathon as- Beyers in 2000 was viewed by the amended section 163.3167(8), Florida sumed jurisdiction of the area upon Court as an untimely attempt to dem- Statutes, to allow local governments incorporation. The City required the onstrate investment-backed expecta- to retain and implement charter pro- Beyers to submit a new BUD applica- tions, an argument that had been visions that authorized an initia- tion and fee, which was put forward advocated by the City in observing tive or referendum process in regard in 2002. Prior to the BUD applica- that the dock represented merely an to development orders, provided the tion to the City, the Beyers also sub- appurtenant structure unconnected charter provision was in effect as mitted a dock permit application in to any plans for development on the of June 1, 2011 (2012 Amendment). 2000. A special master hearing on property that it could serve. At the recommendation of the De- the BUD was held in 2005, result- The Third DCA rejected the trial partment of Community Affairs, the ing in a recommendation of denial court’s analysis of the laches defense. 2012 Amendment had been under- based on a determination that the Based on the record, the Court noted taken to accommodate certain local allowable recreational uses for the that the delay of the Beyers’ BUD governments whose limited refer- property and the assignment of six- application was not caused by ac- enda process had been eliminated teen points on the City’s Residential tion or inaction on their part. As the by the Legislature’s 2011 revision of Rate of Growth Ordinance (valued at Court observed in reversing summa- the same statute. The City filed suit $150,000.00) reasonably met the Bey- ry judgment on the basis of a statute requesting a declaratory judgment ers’ investment-backed expectations. of limitations, to allow the County or that the amendment adopted under continued... 7 CASE LAW UPDATE of the jury to determine just com- Appeal (Fourth DCA) disagreed, in- from page 7 pensation. Exclusion of scientific stead emphasizing that undisputed evidence relevant to the valua- and overwhelming evidence before tion of compensation for a taking, the trial court showed that the CCEP, however, is in error. Fla. Dep’t of while a legitimate exercise of police Ordinance 5203 was not statutorily Agric. & Consumer Servs. v. Mendez, power, destroyed uninfected trees subject to a referendum by effect of 126 So. 3d 367 (Fla. 4th DCA 2013). which were not imminently danger- the 2012 Amendment. Archstone in- A class action for inverse condem- ous to the public. Only in the narrow- tervened in the action as a co-plaintiff nation sought compensation for tak- est circumstances where the prop- and argued that the 2012 Amend- ings as a result of the Department of erty is imminently dangerous may ment’s “grandfather clause” applied Agriculture’s (Department) destruc- the state take the property without only to charter provisions that specifi- tion of more than 60,000 citrus trees compensation. Relying in part on cally allowed for referendums regard- in Palm Beach County through the the Legislature’s own explicit provi- ing development orders, language not Citrus Canker Eradication Program sions for compensation in the statute found in the City’s charter. The trial (CCEP). By Department rule, and as authorizing the CCEP, the Court ob- court, however, interpreted the City codified in section 581.184,Florida served that the Legislature and the charter’s allowance for a referendum Statutes, the CCEP requires the de- courts considering this issue have process on any ordinances to implied- struction of trees infected with citrus determined that uninfected trees de- ly include development orders, and canker and all trees within a 1,900- stroyed through the CCEP are a com- thus ruled that the 2012 Amendment foot radius of infected trees. Florida pensable taking that does not involve enabled the referendum requested by Statutes authorizes compensation property imminently dangerous to the petition. for removed trees at $100 per tree, the public welfare. Thus, even if the The Fourth District Court of Ap- but also explicitly clarifies that the presumption of harm outlined in the peal (Fourth DCA) reversed. Look- statutory compensation does not op- statute applies in the context of the ing to the legislative history of the erate as a limit to the amount a court CCEP, it does not operate to render statute prohibiting referenda on de- may award in a claim regarding trees uninfected trees valueless. Accord- velopment orders, the Fourth DCA destroyed in the CCEP. ingly, the Fourth DCA affirmed the outlined legislative intent regard- At trial on liability, the trial court trial court’s ruling on liability for the ing this issue through the series of found that the destruction of non- takings. legislative amendments and legisla- infected trees within the 1,900-foot In turning to the value of compen- tive bill analysis accompanying the statutory radius constituted a taking, sation, the Fourth DCA held that the changes year by year. Of particular since the Department failed to prove trial court erred in excluding scientif- emphasis, the Fourth DCA noted that that all non-infected trees would be- ic evidence related to the citrus can- a 2013 amendment to the statute come infected by canker virus. In ker that could be relevant to explain makes clear what the Legislature the trial for compensation, scientific an expert appraiser’s recommenda- intended to accomplish in the 2012 evidence that could support the im- tion of value for the trees as taken. Amendment, explicitly providing that minence of the trees at issue contract- The differences in valuation offered “a general local government charter ing citrus canker was excluded as by witnesses for the plaintiffs and the provision for an initiative or referen- duplicative of the liability phase and Department could not be adequately dum process is not sufficient” to qual- not concerning to the value of the explained for the jury without refer- ify for the grandfather provision. The destroyed trees. Trial witnesses for ence to the science of the diseases and staff analysis accompanying the 2013 the plaintiffs and for the Department how they spread. Nevertheless, the amendment further showed that the offered starkly different value assess- Fourth DCA cautioned that the sci- opinion of the trial court in this case ments for the destroyed trees based ence of citrus canker should not be a represented an overly broad inter- on several factors, resulting in total feature of the compensation trial be- pretation of the 2012 Amendment values ranging from $1.3 million ac- yond what is necessary to explain the that was contrary to the restriction cording to the Department’s witness facts related to any alleged reduction of referenda for development orders and up to $29.1 million according to in value, and therefore, the reversal the Legislature intended through the a plaintiff witness. The jury awarded of the trial court on compensation did 2011 and 2012 amendments. an average value of $210 per tree not compel admission of all scientific which, after reductions and interest, evidence from the trial on liability. The exercise of state police pow- totaled more than $19.2 million. The er through the Citrus Canker Department appealed the award. A city’s discretion to file, pros- Eradication Program (CCEP) According to the Department, the ecute, abate, settle or dismiss a may not employ a statutory pre- trial court erred in not applying the building and zoning enforcement sumption of harm to preclude all statutory presumption of harm in action against a private property compensation for the destruc- section 11.066(2), Florida Statutes, owner is an executive function tion of uninfected trees. In an which requires a person seeking mon- that cannot be supervised by the inverse condemnation proceed- etary damages from the state to re- courts, absent the violation of a ing, the statutory presumption but by clear and convincing evidence specific constitutional provision does not supersede the purview the presumption of harm afforded or law. Detournay v. City of Coral of the court to determine a com- legitimate exercises of state police Gables, 38 Fla. L Weekly D2552 (Fla. pensable taking or the province power. The Fourth District Court of 3d DCA 2013).

8 In 2004, the City of Coral Gables avoiding the standing issue and for 2007 amendment sought declaratory issued three administrative citations introducing separation of powers, an and injunctive relief in the circuit against Amace Properties, Inc., the issue not raised by either party be- court, but was denied on the basis operator of a private yacht basin fore the trial court or the Third DCA. that the 2001 amendment allowed within the City, for violating the local Undertaking a standing analysis, the changes to the DRI as long as the building and zoning codes. However, dissenting opinion concluded that 2,107 peak hour threshold was not for years, the City did not pursue the City waived the issue in the pro- exceeded, regardless of other crite- enforcement of the citations due to ceedings below, and regardless, the ria under section 380.06(19), Florida ongoing efforts to settle with Amace homeowner allegations represented Statutes, which provides examples through proposed redevelopment of sufficiently special damages differ- of proposed changes that constitute the yacht basin property. Two home- ent in kind from other Coral Gables substantial deviations requiring ad- owners, along with their homeown- residents so as to maintain an action. ditional review. Among the changes ers’ association, sought a declaratory Furthermore, the dissent expressed identified in the 2010 statute, an judgment (Count 1) and an injunction that the Declaratory Judgment Act increase in the number of hotel rooms (Count 2) to force the City to proceed did not require a special injury, as by 10 percent or 83 rooms, whichever with the enforcement actions. Amace long as the elements of the Act are is greater, constituted a substantial intervened as a defendant, although established as here by the homeown- deviation. However, the Fourth Dis- the homeowners made no claims ers’ doubt as to the existence or non- trict Court of Appeal (Fourth DCA) against Amace in the instant case. existence of a right under the City’s denied a petition for second tier re- The trial court dismissed Count I for zoning ordinances and by the bona view of the circuit court order, agree- lack of standing and found in favor of fide, actual, present and practical ing with the Tribe that the number the city on Count II. need for a declaration. The major- of hotel rooms was not yet decided at On appeal, the Third District Court ity’s reliance on tort-based case law the time of the amendment, and thus, of Appeal (Third DCA) affirmed the required an unnecessary extension of did not trigger further DRI review. ruling on Count I, reaching the deci- municipal immunity from torts and In a 2010 rezoning application, sion, however, by applying separa- damages to municipal immunity from the Tribe sought approval for a 1,000 tion of powers rather than standing. declaratory and injunctive relief, a room hotel and a seven-story parking Accordingly, relying on separation of conclusion the dissent argued was garage within the DRI, asserting that powers, the Court reversed the rul- an expansion of Florida law with the the change conformed to the 2,107 ing on Count II and remanded for effect of immunizing Amace’s conduct peak hour trips limit. At the public dismissal. Separation of powers is the even though Amace had become a hearing on the proposed rezoning, simplest and most direct explanation party to the suit. residents argued, in pertinent part, of why dismissal is proper, accord- that the 1,000-room hotel represent- ing to the Court. Citing a series of Whether a city rezoning decision ed a substantial deviation exceed- cases arising in torts, mandamus, and properly applied substantial de- ing the statutory increase threshold criminal law, the Third DCA empha- viation criteria to the modifica- of 83 rooms, and thus required fur- sized that the governing principles tion of the number of hotel rooms ther review. The rezoning ordinances attendant to separation of powers in an approved DRI is moot un- were unanimously recommended by apply equally well to injunctions and der current law, given the Florida the Planning and Zoning Board and declaratory actions. In essence, the Legislature effectively eliminat- unanimously approved by the City Court observed, the City’s discretion ed hotel and motel developments Commission. to file, prosecute, abate, settle, or vol- from DRI review in 2011. Ripps v. City residents again brought a untarily dismiss a building and zon- City of Coconut Creek, 124 So. 3d 1007 challenge, petitioning the circuit ing enforcement action is analogous (Fla. 4th DCA 2013). court for certiorari review of the re- to a prosecutor’s discretion to file, In 1987, the City of Coconut Creek zoning ordinances. The circuit court prosecute, abate, settle, or dismiss adopted an ordinance approving the accepted the City’s argument that a criminal or civil lawsuit. Absent a development of regional impact (DRI) rezoning within the DRI only need- violation of a specific constitutional for the 101-acre Commerce Center ed to meet the 2,107 peak hour trip provision or law, this discretion is an of Coconut Creek, of which 45 acres threshold and was not controlled executive function that cannot be su- are owned by the Seminole Tribe. by substantial deviation thresholds pervised by the courts. The majority The DRI was subsequently amended then existing in the DRI statute. The opinion explained that the separation several times, including amendments residents petitioned for second tier of powers would be a hollow idea if it in 2001 and 2007 that are at issue review in the Fourth DCA, a review applied only to some procedures and in this case. The 2001 amendment the Court acknowledged is limited not others. As for the homeowners eliminated certain restrictions to al- to whether the circuit court failed opportunity to direct action against low any mix of commercial, office, to provide procedural due process or Amace, the Court noted that its deci- and industrial use, provided the de- applied incorrect law that results in sion does not speak to the validity of velopment did not generate more a miscarriage of justice. such a claim, as no relief has been re- than 2,107 peak hour trips. The 2007 Although standing for the claim quested against Amace in the instant amendment introduced “hotel” to the was at issue, the Fourth DCA de- case. allowable mix and eliminated “indus- clined to address standing, resting A lengthy dissenting opinion chal- trial” use. its second tier review instead on the lenged the majority for its analysis An initial resident challenge to the fact that legislative changes to the continued... 9 CASE LAW UPDATE Hills. Ultimately, however, disputes Florida Statutes, which provides, in from page 9 regarding the use and costs of the pertinent part: property’s maintenance compelled An action founded on the design, the case at hand. In deciding the is- planning, or construction of an sues, the trial court determined that improvement to real property . . DRI statute in 2011 eliminated any Harbor Hills had the right to main- . . must be commenced within 10 potential miscarriage of justice that tain and control the gate. The Grove years after [1] the date of actual would warrant extraordinary relief. appealed. possession by the owner, [2] the The Legislature, by Chapter 2011- Citing pertinent provisions of the date of the issuance of a certifi- 139, Laws of Florida, removed the agreement, the Fifth District Court cate of occupancy, [3] the date of substantial deviation standards re- of Appeal (Fifth DCA) rejected the abandonment of construction if not lating to the number of hotel rooms trial court’s conclusion that “control” completed, or [4] the date of comple- from the DRI criteria. Further, 2012 and “maintenance” are synonymous, tion or termination of the contract amendments to the statute clarified particularly where the terms are not between the professional engineer, that changes that do not increase the defined in the agreement. Using defi- registered architect, or licensed con- number of external peak hour trips nitions to determine the plain mean- tractor and his or her employer, do not constitute a substantial devia- ing of the terms, the Fifth DCA ruled whichever date is latest. tion. Thus, the Fourth DCA reasoned, that, even though the agreement al- the proposed hotel development is locates primary maintenance respon- The trial court granted summary not subject to DRI review under cur- sibility to Harbor Hills, the ultimate judgment in favor of Future Capital, rent law. The Court acknowledged control of the property, including finding that the statute of repose that the Tribe could withdraw and staffing decisions, remains with its barred CHA’s claims. Future Capital resubmit its rezoning application owner, subject to the rights reserved had argued that submission of the under current law without triggering for Harbor Hills in its easement. final plat in 2003 could not be the a substantial deviation, effectively triggering event for the statute of mooting any miscarriage of justice Although the ten-year statute of repose because the submission did by the circuit court even if there had repose applies to causes of action not constitute design, planning, or been error in the ruling. founded on the design, planning, construction of an improvement to or construction of an improve- real property. Where one homeowners associ- ment to real property, plain lan- On appeal, CHA argued that sec- ation owns a road and related guage of Florida Statutes does tion 95.11(3)(c), Fla. Stat., does not property, an agreement to share not require the event triggering require that the triggering event for costs and allocate primary main- the statute of repose to be an im- the statute of repose be an improve- tenance responsibility for the provement to real property. Fil- ment to real property, rather only road to an adjoining homeowners ing of a final plat, even years after the cause of action must be grounded association does not relinquish project completion, may raise in an improvement to real property. the owning association’s ultimate sufficient issues of material fact The Second District Court of Appeal authority to control the prop- to survive summary judgment on (Second DCA) agreed. From the af- erty, absent provisions stating claims subject to the statute of re- fidavits submitted by the parties, otherwise. Grove at Harbor Hills pose. Clearwater Housing Authority the Second DCA recognized genuine Homeowners v. Harbor Hills Dev., v. Future Capital Holding Corp., No. issues of material fact existed as to L.P., 38 Fla. L. Weekly D2627 (Fla. 2D12-5515 (Fla. 2d DCA 2013). whether the final plat filing in 2003 5th DCA 2013). In 1998, Future Capital Holdings was completed under CHA’s contract Homeowners associations (HOA) Corp. (Future Capital) was hired to with the engineering group for the established by the same developer of construct apartments in the City of apartment development (placing the two adjoining subdivisions, The Grove Clearwater, Florida, a project later claims within the limitations of the at Harbor Hills HOA (The Grove) and purchased by Clearwater Housing statute of repose), or as argued other- Harbor Hills HOA (Harbor Hills), Authority (CHA). A certificate of oc- wise, whether it represented separate entered into a joint use agreement re- cupancy was issued, and CHA took work under contract with the original garding the maintenance and costs of possession of the property in 2000. property owner (placing the claims a road, gate, guardhouse, and related Engineers for the project did not sub- beyond the statute of repose expira- property (the property) owned by The mit a final plat until 2003. tion). Accordingly, the Second DCA Grove and subject to an easement in In 2009, CHA filed suit for negli- reversed and remanded for further favor of Harbor Hills. Notwithstand- gence and construction defects, and proceedings, emphasizing that even ing the sharing of costs, the agree- then in 2011, named Future Capi- the slightest doubt that a genuine ment specified that the property shall tal as a defendant. The CHA claims issue of material fact might exist ren- be maintained primarily by Harbor are governed by section 95.11(3)(c), ders summary judgment improper.

10 On Appeal by Lawrence E. Sellers, Jr.

Note: Status of cases is as of February SFWMD’s request and certified the curiam on December 11, 2013. 7, 2014. Readers are encouraged to following question: “Under the holding State of Florida v. Basford, Case advise the author of pending appeals of Department of Banking & Finance No. 1D12-4106. Appeal from order that should be included. v. Osborne Stern & Co., 670 So. 2d 932 of partial taking in claim for inverse (Fla. 1996), is a state governmental condemnation against the State of FLORIDA SUPREME COURT agency which brings a civil action in Florida as a result of the passage Herrin v. City of Deltona, Case No. circuit court required to prove the al- of Article X, Section 21, Limiting SC 13-2003. Petition for review of 5th leged regulatory violation by clear and Cruel and Inhumane Confinement DCA decision confirming the trial convincing evidence before the court of Pigs During Pregnancy. Status: court’s summary judgment in favor of may assess monetary penalties.” 37 Affirmed on July 24, 2013. 38 Fla. L. the City of Deltona and rejecting the Fla. L. Weekly D2528a (5th DCA, Oct. Weekly D1567a; motion for rehear- plaintiff’s claim that the City violated 26, 2012). Status: On March 7, 2013, ing and rehearing en banc denied the Florida Sunshine Law by not al- the Florida Supreme Court accepted on August 29, 2013. lowing Herrin to speak at the Deltona jurisdiction and dispensed with oral FINR, II, Inc. v. CF Industries, City Commission meeting, ruling that argument. Inc. and DEP, Case No. 1D12-3309. the public had no right to participate Petition for review of final DEP order in the City’s decision making process. FIRST DCA granting CF’s applications for various 38 Fla. L. Weekly D1767a (5th DCA Florida Fish and Wildlife Conserva- approvals, including environmental 2013). Status: Notice filed October 22, tion Commission v. Wakulla Fisher- resource permit, conceptual reclama- 2013. men’s Association, Inc., et al., Case No. tion plan, wetland resource permit DOT v. Clipper Bay Investments, 1D13-5115. Appeal from final judg- modification and conceptual recla- LLC, Case No. SC 13-775. Petition for ment enjoining any and all further mation plan modification. Status: review of 1st DCA decision determin- enforcement of the net ban amend- Affirmedper curiam on July 19, 2013; ing that the Marketable Record Title ment as set forth in Article X, §16, the motion for rehearing and rehearing Act’s exception for easements in right- Commission’s authority to adopt rules en banc denied August 22, 2013. The of-ways is applicable to land held as a to regulate marine life with respect to U.S. Supreme Court denied certiorari fee estate for the purpose of a right-of- the use of a “gill net” or an “entangling on January 27, 2014. way, so long as competent substantial net” pursuant to Article IV, §9, and evidence establishes the land is held Rules 68B-4.002, 68B-4.0081 and 68B- THIRD DCA for such a purpose. The court reversed 39.0048. Case No. 2011-CA-2195 (2d Padron v. Ekblom and DEP, Case the trial court’s award of a portion of Cir. final judgment entered October No. 3D13-2446. Appeal from final the land north of the I-10 fence line 22, 2013). Status: Notice of appeal filed order adopting recommended order and remanded with instruction to October 23, 2013. determining that Ekblom’s appli- quiet title to all of the land north of the Putnam County Environmental cation to install a boat lift on an I-10 fence line in Clipper Bay, except Council v. SJRWMD, Case No. 1D13- existing dock in a man-made body for the portion used by Santa Rosa 2669. Petition for review of FLWAC of water is exempt from the need for County. 38 Fla. L. Weekly D271a (Fla. final order denying the Council’s an ERP. Status: Notice of appeal filed 1st DCA 2013). Status: Oral argument request for review pursuant to s. September 24, 2013. to be held on April 8, 2014. 373.114, F.S., of the Fourth Adden- SFWMD v. RLI Live Oak, LLC, dum to SJRWMD’s Water Supply FOURTH DCA Case No. SC12-2336. Petition for re- Plan, relating to identification of Conservation Alliance of St. Lucie, view of 5th DCA decision reversing withdrawals from the St Johns and et al. v. DEP, Case No. 4D13-3504. declaratory judgment determining Ocklawaha Rivers as alternative wa- Appeal from a final order adopting that RLI participated in unauthor- ter supplies. Status: Notice of appeal a recommended order of dismissal, ized dredging, construction activity, filed June 5, 2013. which dismissed for lack of standing grading, diking, culvert installation Capital City Bank v. DEP and a challenge to a settlement agree- and filling of wetlands without first Franklin County, Case No. 1D13- ment resolving an enforcement ac- obtaining SFWMD’s approval and 1489. Appeal from two final orders tion relating to alleged contamina- awarding the District $81,900 in civil granting dismissal of plaintiff’s third tion of soil and groundwater at a penalties. The appellate court deter- amendment verified complaint, by bleach-manufacturing and chlorine- mined that the trial court improperly which plaintiff seeks an injunction repackaging facility. DOAH Case No. based its finding on a preponderance pursuant to s. 403.412(2), Florida 10-3807 (Final Order entered Au- of the evidence standard and not on Statutes, for alleged violations of gust 21, 2013). Among other things, the clear and convincing evidence various statutes and rules relating the order concludes that petition- standard. 37 Fla. L. Weekly D2089a to actions allegedly taken by Frank- ers were “foreclosed from assert- (5th DCA, Aug. 31, 2012). Subsequently, lin County without DEP approval at ing their interests under subsection the district court of appeal granted Alligator Point. Status: Affirmed per 403.412(6), Florida Statutes, in a continued... 11 ON APPEAL 4D13-2925. Appeal from final order Appeal from trial court’s order grant- from page 11 adopting recommended order deter- ing final summary judgment deter- mining that the petition for hearing mining that the 2012 amendment to was filed untimely and that petition- section 163.3167(8), Florida Statutes, proceeding where DEP took enforce- ers failed to demonstrate standing to does not prohibit the referendum ment action.” Status: Notice of ap- request a hearing. Status: Notice of process described in the City charter peal filed September 19, 2013. appeal filed August 8, 2013. prior to June 1, 2011. Status: Re- Conservation Alliance of St. Lucie Archstone Palmetto Park LCC v. versed on January 29, 2014. 39 Fla. County and Roman v. DEP, Case No. Kennedy, et al, Case No. 4D12-4554. L. Weekly D230a.

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12 The Florida Bar Continuing Legal Education Committee and the Environmental & Land Use Law Section present Environmental and Land Use Law Audio Webcast Series

COURSE CLASSIFICATION: INTERMEDIATE LEVEL

Dates: February 18, 2014; March 20, 2014; April 17, 2014; May 20, 2014; June 19, 2014 12:00 noon – 1:00 p.m. EST Course No. 1626R

The Florida Bar Environmental and Land Use Law Section is pleased to announce this 2013-2014 audio webcast series. Over the course of six months, we will provide an easy and affordable manner to earn CLE credits (including ethics credit) and listen to presentations on environmental and land use hot topics by some of the top lawyers in the state, all from the comfort of your home or office. There is a discount for ordering the entire series.

February 18, 2014 Update on Water Use Issues from Around Florida Timothy J. Perry, Oertel, Fernandez, Bryant & Atkinson, AUDIO WEBCAST P.A. Webcast registrants receive an email two days prior to David Macintyre, PB Water the seminar, with log-in credentials to access course materials and the webcast link. Call The Florida Bar Order March 20, 2014 Entry Department at (800) 342-8060, ext. 5831 with any Managing Large Scale Development for the Long questions. Term -- Sector Planning in Osceola County Vivien J. Monaco, Burr & Forman LLP Jeff Jones, Osceola County

April 17, 2014 CLE CREDITS Everyday Ethics: The Most Common Errors Attorneys Make (and how to avoid them) CLER PROGRAM Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar (Max. Credit: 6.0 hours) General: 6.0 hours May 20, 2014 Ethics: 1.0 hour Annual Legislative Wrap Up CERTIFICATION PROGRAM Janet E. Bowman, Nature Conservancy (Max. Credit: 6.0 hours) Gary K. Hunter, Jr., Hopping Green & Sams City, County & Local Government: 6.0 hours Real Estate Law: 6.0 hours June 19, 2014 State & Federal Gov’t & Administrative Practice: 6.0 hours

Air Law Hot Topics: Fine Particulate Emission Limits, Seminar credit may be applied to satisfy CLER / Certification require- NSR Enforcement and More ments in the amounts specified above, not to exceed the maximum Dorothy E. Watson, Foley & Lardner LLP credit. See the CLE link at www.floridabar.org for more information. Peter Anderson, Geosyntec Consultants Prior to your CLER reporting date (located on the mailing label of your Florida Bar News or available in your CLE record on-line) you will be sent a Reporting Affidavit if you have not completed your required Note: All webinar presentations are scheduled to hours (must be returned by your CLER reporting date). occur between 12:00 noon and 1:00 p.m. Eastern Time.

13 REFUND POLICY: A $25 service fee applies to all requests for refunds. Requests must be in writing and postmarked no later than two business days following the live course presentation or receipt of product. Registration fees are non-transferrable, unless transferred to a colleague registering at the same price paid. TO REGISTER OR ORDER AUDIO CD BY MAIL, SEND THIS FORM TO: The Florida Bar, Order Entry Department, 651 E. Jefferson Street, Tallahassee, FL 32399-2300 with a check in the appropriate amount payable to The Florida Bar or credit card information filled in below. If you have questions, call 850/561-5831. Name______Florida Bar #______Address______Phone: ( )______City/State/Zip______E-mail*______*E-mail address required to transmit electronic course materials and is only used for this order. CLB: Course No. 1626R

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registration fee (check ALL THAT apply): Update on Water Use Issues from Around Florida – Annual Legislative Wrap Up – May 20, 2014 February 18, 2014 (1627R350) (1630R350)  Member of Environmental & Land Use Law Section: $40  Member of Environmental & Land Use Law Section: $40  Non-section member: $80  Non-section member: $80 Managing Large Scale Development for the Long Air Law Hot Topics: Fine Particulate Emission Term -- Sector Planning in Osceola County – Limits, NSR Enforcement and More – June 19, 2014 March 20, 2014 (1628R350) (1631R350)  Member of Environmental & Land Use Law Section: $40  Member of Environmental & Land Use Law Section: $40  Non-section member: $80  Non-section member: $80 Everyday Ethics: The Most Common Errors Reduced Rate: Entire Audio Webinar Series (1626R350) Attorneys Make (and how to avoid them) –  Member of Environmental & Land Use Law Section: $150 April 17, 2014 (1629R350)  Non-section member: $190  Member of Environmental & Land Use Law Section: $40  Non-section member: $80

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14 Law School Liaisons A Spring 2014 Update from the Florida State University College of Law by David Markell, Steven M. Goldstein Professor and Associate Dean for Environmental Programs

The Florida State University College of Law has a busy schedule planned for the spring. We hope Section mem- bers will join us in person or on-line for one or more events.

Spring 2014 Events LAZARUS KLASS BURTRAW SKOCPOL FUNK AAGAARD Environmental Law With- out Congress (February 28, 2014, 8:50 a.m. in Room 310). This conference features lead- ing national experts in law, pol- icy and the social sciences who will discuss possible future di- rections for environmental law. Participants include Richard ZELLMER RUHL SWIM FARBER RICHARDSON HSU J. Lazarus, Howard and Kath- erine Aibel Professor of Law, Harvard Spring 2014 Law School, Todd Aagaard, Associate Environmen- Professor of Law, Villanova University tal Forum on School of Law, Dallas Burtraw, Dar- the Apala- ius Gaskins Senior Fellow, Resources chicola-Chat- for the Future, Daniel A. Farber, tahoochee- Sho Sato Professor of Law, University Flint (ACF) of California-Berkeley, School of Law, River System William Funk, Robert E. Jones Pro- (April 2, 3:15 HOEHN LEOPOLD MARKELL fessor of Advocacy and Ethics, Lewis p.m. in Room GLOGAU & Clark Law School, Alexandra B. 310). The Spring 2014 Environmen- Student Activities Klass, Professor of Law, University tal Forum will focus on the ACF river Andrew Missel (3L), Curtis Fi- of Minnesota Law School, Nathan system, including the State’s recent laroski (3L), and Sarah Spacht (3L) Richardson, Resident Scholar, Re- court filing with the U.S. Supreme will compete in the National Environ- sources for the Future, J.B. Ruhl, Da- Court. Featured participants include mental Law Moot Court Competition vid Daniels Allen Distinguished Chair Jonathan Glogau, Special Counsel at Pace Law School in White Plains, in Law, Vanderbilt Law School, Theda and Chief, Complex Litigation Office, NY. Lawyers with the firm of Oertel, Skocpol, Victor S. Thomas Professor Office of the Florida Attorney Gen- Fernandez, Bryant & Atkinson, of Government and Sociology, Harvard eral and Adjunct Professor, Florida P.A. are serving as coaches for the University, Janet Swim, Professor of State University College of Law, Ted team. Psychology, The Pennsylvania State Hoehn, Florida Fish and Wildlife University, and Sandra Zellmer, Rob- Conservation Commission, and Matt ert B. Daugherty Professor of Law, Leopold, General Counsel, Flori- University of Nebraska College of Law. da Department of Environmental Shi-Ling Hsu, Larson Professor, Flori- Protection. David Markell, Steven da State University College of Law will M. Goldstein Professor of Law and moderate the program. Associate Dean for Environmental For more information please visit: Programs, Florida State University http://law.fsu.edu/events/environmen- College of Law, will moderate the talconference_2014.html. Forum. Several of our students are partici- The conference will be streamed live The forum will be streamed live pating in Externships this semester, at: http://mediasite.apps.fsu.edu/Me- at: http://mediasite.apps.fsu.edu/Me- including: Ryan McCarville and diasite/Play/c431d54c2664432f82cd- diasite/Play/ba4c4ac598e345cd9fe2e- Heather McLellan (Department of 3fce4e19b10a1d 11a9863f7591d Environmental Protection); Beverly

Law School Liaisons continued.... 15 LAW SCHOOL LIAISONS Loeb & Hinds, was named a Tampa mid-year CLE. The presentation from page 15 Bay Business Journal Up and Comer. highlighted the growing trend of ur- Kaitlin Monaghan (’13) joined ban farming in Florida and around Advanced Energy Economy in Wash- the United States. ington, D.C. as an associate. Liesl Voges (’13) joined the City Halloran (NextEra Energy); Davis Trey Mills (’06) was elected as of Tallahassee as a Senior Planner in George Moye (Governor’s Office- a shareholder at Rogers Towers. He Growth Management. Environmental Policy); and James was also elected to the Board of Direc- For more information about our Flynn (LL.M.) (Division of Adminis- tors for the North Florida Land Trust. programs this semester, please con- trative Hearings). Sarah Taitt (’08), an Assistant sult our web site at: http://www.law. This year’s Environmental Law County Attorney in Osceola County, fsu.edu, or please feel free to contact Society has launched an innova- gave a presentation at the Florida Prof. David Markell, at dmarkell@ tive mentoring program to help our Association of County Attorneys law.fsu.edu. students connect with environmen- tal and administrative legal profes- sionals. Please contact Sarah Spacht (’14) if you would like to participate ([email protected]).

Alumni Accomplishments and Honors Jacob T. Cremer (’10), an associ- ate with Smolker Bartlett Schlosser VOGES CREMER MILLS TAITT

UF Law Update Submitted by Mary Jane Angelo, Director, Environmental and Land Use Law Program, University of Florida Levin College of Law

20th Annual Public Interest Envi- Philip Ackerman-Leist, Associate of ballot-box zoning; and campaign ronmental Conference Held Professor, Green Mountain College; disclosure for ballot measures. Since “Feeding the Future: Shrinking Director, Farm and Food Project; and the 2000 presidential election, the Resources, Growing Population and Anna Prizzia, IFAS Farm to School Sunshine State has been closely iden- a Warming Planet” was the theme Statewide Coordinator, UF. tified with these and other contro- of the 20th annual Public Interest The conference also included pan- versial election topics, so the presen- Environmental Conference, held Feb. els focused on three tracks: “Agricul- tations and discussions during the 20-22, at the University of Florida tural Frontiers”; “Natural Resourc- Nelson Symposium provided fodder Levin College of Law. es”; and “Legal/Regulatory Issues.” for continuing debates over current Dr. Dickson Despommier, Professor Special events included a workshop and future controversies. of Public Health in Environmental on “Finding Collaborative Solutions Presenters included Michael S. Sciences at Colombia University and for Natural Resources Issues”; a ses- Kang, Professor of Law, Emory Law author of The Vertical Farm: Feeding sion on “Ethics & Professionalism for School; Janai Nelson, Professor of the World in the 21st Century, was the Attorneys”; a roundtable discussion Law, St. John’s University School keynote speaker. His topic was “Ur- on “Climate Change & Food Security: of Law; Kenneth A. Stahl, Associate ban Agriculture: Things are Looking and a career path event. Professor of Law, Fowler School of Up.” Law, Chapman University; Profes- The conference featured plenary Nelson Symposium Discusses sor Terry Smith, Professor of Law, sessions, including: “Resource Out- State & Local Elections DePaul University College of Law; look: The Current State of Agricul- The 13th Annual Richard E. Nelson Mark H. Scruby, County Attorney, ture, Challenges We face and Oppor- Symposium, held Feb. 7, featured na- Clay County; Ilya Shapiro, Senior Fel- tunities for the Future” – speakers tional and state experts who explored low, Cato Institute; Daniel A. Smith, Sarah Bittlemen, Senior Agricultural the status of the Voting Rights Act Professor, Department of Political Counselor, EPA; and Jack Payne, Se- after the U.S. Supreme Court’s 2013 Science, University of Florida; Nicho- nior Vice-President for Agriculture decision in Shelby County v. Holder; las M. Gieseler and Steven Geoffrey and Natural Resources, IFAS, Uni- the legality and wisdom of voter ID Gieseler, Gieseler & Gieseler, P.A., versity of Florida. laws, felon disenfranchisement, and Port St. Lucie; Suh Lee and Emma “Feeding the Future” – speakers voter roll purges; the phenomenon Morehart, J.D. candidates, University Law School Liaisons continued.... 16 of Florida Levin College of Law; and Sponsors for the speaker series are Agricultural Water Pollution” at the Michael Allan Wolf, Richard E. Nel- Alfred J. Malefatto, Shareholder, University of Kansas Law Review son Chair in Local Government Law, Lewis, Longman & Walker, P.A., West Symposium: “Waters of the United University of Florida College of Law. Palm Beach, FL; and Hopping Green States: Adapting Law for Degrada- & Sams, P.A., Tallahassee, FL. tion and Drought” and participated UF Law Costa Rica program joins Topics and schedule for the series in a panel on “Urban Agriculture” at international consortium included: the fourth environmental conference The UF Law Costa Rica Program at the University of Michigan. is partnering with the Organiza- January 9, 2014: Agricultural Law tion for Tropical Studies (OTS) and 101, Mary Jane Angelo, UF Research Christine A. Klein, Chesterfield UF’s Center for Latin American Foundation Professor of Law, Alumni Smith Professor of Law; Director, Studies, enhancing efforts to build Research Scholar, Director, Environ- LL.M. Program in Environmental & interdisciplinary bridges between mental & Land Use Law Program, Land Use Law: Klein participated in law, policy and the social and natural University of Florida Levin College Notre Dame Law School’s “National science of conservation and sustain- of Law. Parks Roundtable.” The superinten- able development. With administra- dents of six National Parks together tive offices, classrooms and three in- January 16, 2014: Agricultural Strife: with eight natural resources law ternationally renowned field stations Industrial Food Animal Production in scholars participated in an all-day in Costa Rica, OTS is a consortium of America, Hannah Connor, Staff At- discussion of the challenges current- U.S. and international universities torney, Animal Protection Litigation, ly facing the parks. The roundtable and institutions focused on tropical The Humane Society of the United participants also presented a lunch research and education. Using OTS States, Washington, D.C. discussion and a Q-and-A session for field stations as policy laboratories, Notre Dame law students. the program will explore the issues of January 23, 2014: (via videoconfer- sustainable development through the ence): The Dating Game and beyond: Michael Allan Wolf, Professor of lens of the ecosystems and communi- Expiration Date Laws and Other Poli- Law; Richard E. Nelson Chair in Lo- ties that surround the stations at La cy Levers to Reduce Food Waste, Emily cal Government Law: Wolf published Selva, Palo Verde and Las Cruces. M. Broad Leib, Director, Food Law his paper, “The Brooding Omnipres- A skills emphasis: Practicums and Policy Clinic, Center for Health ence of Regulatory Takings: Urban lie at the heart of the Program. Law Law and Policy Innovation, Harvard Origins and Effects,” in the Fordham and graduate students from the U.S., Law School. Urban Law Journal. The cite is 40 Costa Rica and elsewhere develop Fordham Urb. L.J. 1835 (2013). Wolf’s their knowledge and skills through January 30, 2014: Sustaining the paper, “Strategies for Making Sea- an integrated suite of courses that co- Health of the Land: It all Begins with Level Rise Adaptation Tools ‘Takings- alesce around efforts to find practical, the Soil, Frederick L. Kirschenmann, Proof,’ ” was published in the Journal policy-relevant solutions to issues of Distinguished Fellow, Leopold Center of Land Use & Environmental Law. immediate importance to the conser- for Sustainable Agriculture, Iowa The cite is 28 J. Land Use & Envtl. vation and sustainable development State University. L. 157 (2013). “Strategies for Mak- community. ing Sea-Level Rise Adaptation Tools A field-based approach:For poli- February 6: Food Labeling, Public ‘Takings-Proof’ ” Journal of Land Use cymakers and those advising them, Health & the Environment, Jason J. & Environmental Law conservation and sustainable devel- Czarnezki, Gilbert and Sarah Kerlin opment issues are best understood Distinguished Professor of Environ- UF Law Foreign Field Study Op- where they occur. Each week the Pro- mental Law, Pace Law School. portunities Scheduled gram will embark on extended visits UF law’s ELULP will again offer to OTS field stations and their neo- February 13, 2014: The Food Safety two foreign field study opportunities tropical context – rivers, wetlands, Modernization Act and Small and Or- this academic year in Belize and in forests (wet, dry and cloud), beaches ganic Farmers, Danielle D. Treadwell, Costa Rica. The courses are: and mountains. They will also visit Ph.D., Associate Professor and Veg- “Sustainable Development: Law, indigenous communities, meet with etable Extension Specialist, Horticul- Policy & Practice” is offered during farmers and land owners, and en- tural Sciences, UF Institute of Food spring break, 2014, in Belize for 2L, counter unique sustainable develop- and Agricultural Sciences. 3L, and LLM students. The two-cred- ment projects – all grist for collabora- it, eight-day course is hosted by the tive problem-solving approaches. Faculty Publications and Belize Foundation for Research and Presentations Environmental Education (BFREE). Speaker Series Focuses on Agri- Students will travel through Belize culture & Environment Mary Jane Angelo, University of to delve into international and do- UF law’s annual Environmental Florida Research Foundation Profes- mestic law issues concerning pro- Speaker Series paralleled the theme sor and Director, Environmental and tected areas, indigenous land rights, of the PIEC, featuring topics on “Ag- Land Use Law Program, presented intellectual property in biological riculture and the Environment.” Pre- “Maintaining a Healthy Water Sup- diversity, water, mining and ener- sentations occurred during Janu- ply While Growing a Healthy Food gy, cultural resources, fisheries and ary and February, 2014. The Gold Supply: Legal Tools for Cleaning Up coral reef conservation – all within Law School Liaisons continued.... 17 LAW SCHOOL LIAISONS policy-focused program consisting practicums based around current from page 17 of three linked courses integrating issues of conservation and develop- international and comparative sus- ment in Costa Rica and elsewhere, tainable development law and policy, jointly developed by U.S. and Costa contemporary issues in tropical con- Rican faculty. Costa Rican law and the context of national pressures for servation and development, and pro- graduate students as well as young human development. In addition to fessional skills for practitioners. The professionals also will participate. domestic Belizean law and interna- 2014 summer program will consist The course will include lectures at tional development law and policy, of a foundational course in inter- the Organization for Tropical Studies students are exposed to the unique le- national sustainable development headquarters, site visits to interna- gal framework of the commonwealth law and policy; a topical course in tional and domestic institutions in Caribbean. water, wetlands and wildlife conser- San Jose such as the Inter-American “Conservation and Sustainable vation, and a sustainable develop- Court for Human Rights, and field Development: Law, Policy and Profes- ment practitioner skills course. All trips to biological field stations of sional Practice” is an interdisciplinary three courses are integrated through topical relevance to the course.

boundaries of the state, which have FEELING THE SQUEEZE Public Access Under the Com- not been alienated, including beaches from page 1 mon Law Rooting the public’s right of lateral below mean high water lines, is held access to Florida’s beaches in common by the state, by virtue of its sover- law doctrine rather than addressing eignty, in trust for all the people.”12 the issue statutorily helps to protect This provision creates a constitu- long served as a cornerstone of Flor- the state from constitutional takings tional duty on the part of the state to 5 ida’s economy, ecology, and culture. challenges brought by private prop- hold in trust certain lands seaward of This trend presents a tremendous erty owners.7 Defining the various the mean high water line (MHWL) on obstacle to public “lateral” access: rights of public and private users of behalf of the citizens of Florida for the that is, the ability of the public to the shoreline through the common purposes of bathing, fishing, naviga- move down the beach along the wet law does not modify or extinguish tion,13 and “other implied purposes.”14 sand, a common law right it possesses the property rights of littoral prop- As a beach slowly erodes or ac- 6 on most shores. erty owners, but simply clarifies the cretes over time, the boundary be- Much of the existing body of liter- boundaries of such rights as they tween the land held in trust for the ature regarding public beach access currently exist.8 There are a number public and the dry sand beach, sub- in Florida focuses on access to the of common law doctrines in Florida ject to private ownership, migrates beach rather than along the beach. relevant to public access to the state’s with the MHWL.15 Analogizing to This article evaluates whether cur- beaches that may be useful in ensur- traditional property law principles, rent Florida law is equipped to ad- ing continued lateral access. Each are one commentator has described the dress the growing number of impedi- considered below. land on either side of the MHWL as ments facing lateral access along comparable to a defeasible estate, the state’s beaches and discusses A. The Public Trust Doctrine title to which changes hands upon the possible future legal innovations The public trust doctrine is an occurrence of a specific event – in this to tackle this problem. The article ancient legal principal, originating case, erosion or accretion.16 The public first examines the tools provided by from early Roman law, under which trust doctrine in effect reserves to the Florida common law doctrines rel- the sovereign holds title to certain public a reversionary interest that evant to beach access by the public. submerged lands in trust for the vests when land becomes submerged A review of the way in which other benefit of its citizens.9 American law seaward of the MHWL.17 These lands coastal jurisdictions have applied adopted this doctrine from English held in trust by the state may only these common law doctrines to pro- common law and applied it to the be transferred out of the trust under tect access to the beach follows. The original 13 states.10 Under the equal limited circumstances and only when article then considers whether cur- footing doctrine, each new state re- it is in the public interest to do so.18 rent Florida statutory law regard- ceived the same property interests Private use of these lands is permit- ing coastal construction and beach in submerged land as granted to the ted only when not contrary to the access provides sufficient protection original 13.11 public interest.19 for public lateral access. The ad- The public trust doctrine is codi- In addition to its duties under the vantages and shortcomings of each fied in Article 10, Section 11 of the public trust doctrine, the state of legal avenue are expressed in turn, Florida Constitution, which states Florida has the complementary obli- accompanied by a brief discussion of in pertinent part: “The title to lands gation to conserve and protect Flor- where the law may go. under navigable waters, within the ida’s beaches as important natural

18 resources. Article II, Section 7(a) of acquire rights to use the dry sand through custom, this right is not am- the Florida Constitution states in area of the beach above the MHWL bulatory. That is, the right to use by relevant part, “It shall be the policy that is subject to private ownership. custom does not migrate onto private of the state to conserve and protect The Supreme Court of Florida first property as beaches erode. Despite its natural resources and scenic beau- recognized the doctrine of custom in arguments from the county that to ty.” 20 As the Supreme Court of Florida the 1974 case, City of Daytona Beach immobilize the doctrine of custom has articulated, “[c]oncisely put, the v. Tona-Rama, Inc.,25 in which the in the face of moving shorelines is State has a constitutional duty to pro- court acknowledged the importance to deny the public its right to access tect Florida’s beaches, part of which of public access to state shores: the beach, the 5th DCA established it holds ‘in trust for all the people.’”21 that where customary use of a beach We recognize the propriety of pro- On eroding beaches, the construc- is made impossible by the landward tecting the public interest in, and tion of seawalls and other coastal shift of the MHWL, “it is not evident right to utilization of, the beaches armoring structures artificially pre- … that the areas subject to the public and oceans of the State of Florida. vents the migration of the MHWL, right by custom would move land- No part of Florida is more exclusive- potentially relegating (and shrink- ward with it to preserve public use on ly hers, nor more properly utilized ing) the public’s reversionary inter- private property that previously was by her people than her beaches. And est to the vertical space between the not subject to the public’s customary the right of the public of access to, mean low and mean high water lines right of use.”31 Migration of the pub- and enjoyment of, Florida’s oceans on the structure. On eroding armored lic’s customary use of the sandy beach and beaches has long been recog- beaches this practice will eventu- is a matter of proof.32 nized by this Court.26 ally result in the complete loss of the Pending a split among the district beach, depriving the public of the In Tona-Rama, the court found that courts of appeal or an opinion by the ability to use the wet sand beach sea- the public may acquire a right to use Supreme Court of Florida overturn- ward of the MHWL for the exercise the dry sandy beach landward of the ing the precedent of the 5th DCA, the of its public trust rights – bathing, MHWL as a matter of custom if the common law doctrine of custom is of fishing, navigation, and other implied recreational use of that area has been limited use in ensuring continued purposes. Some commentators have ancient, without interruption, and lateral access along Florida’s beaches suggested that overly broad armor- free from dispute.27 The court clarified as they are reshaped by rising seas ing privileges granted by the state that such a right by custom prohib- and coastal armoring. to littoral property owners that lead ited the owners of the sandy area at to such destructive outcomes are not issue from using their property in a C. Prescriptive Easements and within the property owners’ existing way inconsistent with the public’s Dedication common law rights.22 They argue that customary use or “calculated to inter- Two final common law doctrines administrative permits aside, courts fere with the exercise of the right of are worth noting in relation to public should find such grants to be illegal the public to enjoy the dry sand area access. Both prescriptive easements transfers out of the trust: “[s]eawalls as a recreational adjunct of the wet and dedication have been used to violate the public trust in a time of sand or foreshore area.”28 acquire public use rights in private rising seas.”23 Although the doctrine of custom land, though neither is a particularly By permitting coastal armoring may secure the public’s use of discrete apt tool for preserving lateral access. on eroding beaches, the state argu- sandy beaches, its utility in ensuring In order for the public to gain a ably breaches its common law and unimpeded lateral access along the prescriptive easement in land, its constitutional duties regarding the shore has been limited in a number use of private land must be actual protection and conservation of state of ways by the 5th DCA in Trepanier and continuous, for a period of 20 beaches. Scholars have recommended v. County of Volusia. In that case, the years, adverse under a claim of right, that in light of the ancient principals court established that the requisite and must be either known to the underpinning the public trust doc- elements of custom must be proven owner or so open, notorious, and vis- trine, courts should support regulato- on a case-by-case basis and cannot ible that knowledge of the adverse ry and statutory efforts that prohibit be applied to the sandy beaches of use by the public can be imputed to armoring that would impair public Florida as a whole.29 A court must the owner.33 One cannot gain access rights under this doctrine.24 The pub- “ascertain in each case the degree of through prescription if the property lic trust doctrine and accompanying customary and ancient use the beach owner expressly or impliedly allows constitutional provisions may provide has been subjected to.”30 This require- that person to be there,34 which is the broad legal foundation needed ment renders the doctrine of cus- often the case on Florida’s sandy to support regulatory decisions that tom an unsuitable tool for acquiring beaches. Further, like custom, a pre- allow the natural migration of the public access rights to those private scriptive easement is location-specific MHWL. beaches where proof of ancient, unin- and granted on a case-by-case basis. terrupted, and peaceable recreational These factors make it an impractical B. Custom use is lacking. and cumbersome method by which to A second major common law source Presenting a second challenge for gain access along Florida’s 825 miles of the public’s right to use of the beach the use of custom to preserve lat- of shoreline. is the doctrine of custom. Distinct eral access, the court held that even The public may also acquire the from the public trust doctrine, custom where the public’s right to use of right to use private coastal prop- is a method by which the public may a beach is successfully established erty through dedication. To claim continued... 19 FEELING THE SQUEEZE has retained a right by virtue owned, extending inland from from page 19 of custom, “the public shall have the line of mean low tide to the the free and unrestricted right line of vegetation bordering on of ingress and egress to the the Gulf of Mexico, as the line of larger area extending from the vegetation may shift over time line of mean low tide to the line as a result of avulsive events use through dedication a private of vegetation bordering on the or other forces of nature.”47 If property owner must have expressed Gulf of Mexico.”41 signed into law, this new defini- “a present intention to appropriate Although the language of tion would “correct” the holding his lands to public use.”35 Long and the Act requires the public to in Severance and ensure the en- continued use by the public will not prove the elements of the com- forceability of the rolling ease- lead to a presumption of dedication; mon law doctrines of prescrip- ment even following avulsive the burden is on the government to tion, dedication, or custom, events such as hurricanes. prove dedication.36 Because this doc- Texas courts have been notably trine operates parcel by parcel and deferential to claims of public ii. New Jersey is dependant on a voluntary act of right under the TOBA.42 Amend- The New Jersey Supreme individual property owners, it too is ments to the TOBA throughout Court has employed the pub- an ineffective common law device for the 1980s and 1990s further lic trust doctrine to address removing obstacles to lateral access. strengthened the public ease- problems of public access to the ment through measures such state’s beaches, both above and D. Common Law Doctrines as disclosure requirements for below the MHWL. As discussed and Public Access in Other Coast- executory contracts regarding by the court in Matthews v. Bay al Jurisdictions the purchase of property located Head Improvement Association, As currently interpreted and ap- seaward of the Gulf Intracoastal the rights traditionally ensured plied, the common law doctrines of Waterway.43 All such contracts by the public trust doctrine are Florida provide only a patchwork must include language warn- effectively eliminated without of legal tools with which to secure ing purchasers of the legal and coexisting rights to use adjacent public lateral access along the state’s economic risks of purchasing sandy beaches. In rejecting the coast. The common law approaches coastal property near a beach, use of prescription, dedication, applied in a number of coastal juris- namely that structures found or custom to ensure contin- dictions are examined below as they to be located on the public beach ued public access to dry sand may prove instructive for the future as a result of natural processes beaches, the court opined, “[a] of lateral access in Florida. may be subject to suit by the rchaic judicial responses are not state for their removal.44 an answer to a modern social i. Texas The Supreme Court of Tex- problem. Rather, we perceive Texas has upheld and en- as abridged the breadth of the the public trust doctrine not to forced a rolling easement doc- state’s rolling easement doc- be ‘fixed or static,’ but one to be trine longer and perhaps more trine in 2012. In Severance v. ‘molded and extended to meet forcefully than any other state.37 Patterson, the court overruled a changing conditions and needs Broadly speaking, the term 1986 decision of the Texas Court of the public it was created to “rolling easement” is used by of Appeals holding that after a benefit.’”48 one commentator to describe hurricane moved the natural The court applied this dy- a collection of regulatory and line of vegetation landward of namic public trust doctrine to legal mechanisms that require appellant’s property, the public ensure not only the public’s human activity and develop- acquired the right to use the right to use the land seaward of ment to yield the right of way newly-located beach based on the MHWL for fishing, naviga- to naturally migrating shores.38 the doctrine of custom.45 The Su- tion, and recreation, but also to The easement ensures public preme Court of Texas reversed provide the public a right to use tidelands and associated public this portion of the opinion, as- the dry sand beach. “[W]here uses are allowed to migrate in- serting that rolling easements use of dry sand is essential or land as sea levels rise at the ex- exist only where they are creat- reasonably necessary for enjoy- pense of existing private uses.39 ed by the gradual process of ero- ment of the ocean, the doctrine Texas’s rolling easement is sion and may not be found when warrants the public’s use of the grounded in the Texas Open coastal land is eroded through a upland dry sand area subject to Beaches Act (TOBA), enacted sudden and violent occurrence an accommodation of the inter- in 1959 to codify common law known as “avulsion.”46 ests of the owner.”49 principles of public access and As of the time of publica- use of state coastal areas.40 The tion, proposed legislation has iii. Oregon Act declares that it is the public been introduced to the Texas The state of Oregon has policy of the state that if the Legislature to amend the defini- invoked the common law doc- public has acquired a right of tion of “public beach” within the trine of custom to keep its sandy use or an easement over an area TOBA to read “any beach area, beaches open to the public. Un- by prescription, dedication, or whether publicly or privately like Florida’s use of custom in

20 Tona-Rama, however, Oregon proposed ordinance failed after con- which to exercise public trust rights, did not limit the doctrine to a cern from the public that this ordi- at least for the near term future. case-by-case application. In- nance could effect a regulatory taking stead, the Supreme Court of and pose enforcement problems.53 Statutory Protection of Public Oregon, recognizing that the The third proposed ordinance carved Access public had enjoyed the dry sand out a 25-foot public use buffer zone Until Florida revisits the common areas along the Pacific shore from the most seaward permanent law to address lateral public access, since the beginning of the state’s structure on the private beach. This legislative action may serve to fill a political history, held that “[o] ordinance was rooted in the doctrine number of gaps. The primary statu- cean-front lands from the north- of custom announced in Tona-Rama, tory scheme regarding the conserva- ern to the southern border of but despite efforts by the city land tion and protection of Florida’s coasts the state ought to be treated use attorney to gather sufficient his- is the Beach and Shore Preservation uniformly.”50 torical and archaeological evidence to Act (the “Act”), enacted in 1965.56 prove that particular area should be Among its many provisions, the Act iv. Montana protected by custom, the ordinance regulates two key realms of activ- Even with the right of public failed to pass after threats of suit ity that have major implications for access to submerged lands and from private landowners.54 lateral access: beach restoration and sandy beaches secured at com- Destin eventually turned to an ad- coastal construction. mon law, physical barriers such ministrative tactic to preserve public as revetments and seawalls may access. The Okaloosa County Sheriff’s A. Beach Restoration and continue to interfere with lat- Office, charged with patrolling the Nourishment eral access along state shores beaches of Destin, allows the public Because erosion is the primary as illustrated by the introduc- a leeway of 10 to 15 feet landward contributing factor to the problem of tion of this article. The Supreme of the MHWL so long as there is no interrupted lateral access, a seemingly Court of Montana addressed misconduct or disturbances.55 Beyond simple solution is to replace and main- this issue directly in 1984, by this point, deputies will ask public tain the sand that has washed away. carving out a small exception beachgoers to leave the area only Though the Act does include a legal to the common law rule that when a private beachfront property mechanism by which to accomplish the public has the right to use owner makes such a request. beach restoration and subsequent state-owned waters only to the Over the coming decades the com- nourishment, this practice is no silver point of the high water mark. mon law doctrines of other coastal bullet for continued public access. Acknowledging the difficulties jurisdictions may provide valuable In recognition that “beach erosion physical obstacles pose for com- guidance in safeguarding lateral is a serious menace to the economy mon law public use and access, access to Florida’s shores. Were and general welfare of the people of the court held that when such Florida to extend the doctrine of this state,”57 the Act declares that it is barriers are present, the public custom to encompass all beaches the responsibility of the government is allowed “portage around such uniformly, as Oregon did, the public to manage Florida’s beaches, protect barriers in the least intrusive would not have to resort to case- them from erosion, and to make nec- way possible, avoiding damage by-case litigation to establish use essary provisions for beach restora- to the private property holder’s rights and avoid trespass claims. tion and nourishment projects.58 The rights.”51 Expanding the public trust doctrine Act creates a cost sharing scheme to encompass the dry sand beach as wherein the state may pay for up to E. The Future of Common Law New Jersey did would accomplish 75 percent of the cost of restoring Public Access in Florida as similar result. Overruling Tre- and nourishing an eroded beach, the The gaps left in the common law of panier to allow customary public balance of which is covered by the Florida regarding public access to its use rights to the wet sandy beach to local government in which the beach beaches leave local communities that move with the MHWL as Texas has is located.59 All restoration proj- wish to preserve lateral access in a done (with respect to the dry sandy ects completed under the Act must difficult position. In 1999 and 2000, beach) would help preserve access take place in an area designated as the city of Destin, Florida proposed along eroding coastlines. Allowing “critically eroded” shoreline, or must three ordinances meant to address limited trespass around obstruc- benefit an adjacent critically eroded public beach access problems. The tions to permit free passage along shoreline.60 The Florida Department only ordinance of the three to make the beach, in a manner analogous of Environmental Protection (DEP) its way into the city’s code prohibits to Montana, would maintain the serves as the beach and shore pres- beach vendors from setting up within public’s ability to exercise its public ervation authority within the state 20 feet of the water east of Henderson trust or customary right to use the and is charged with making the de- Beach State Park where the beaches beach. Regardless of whether the termination as to which beaches are are narrower.52 public gains a usufruct of some na- “critically eroded.”61 A second proposed ordinance at- ture over private dry sandy beach, Beyond ensuring beaches will not tempted to codify a 10-foot pedes- prohibiting shoreline hardening be completely submerged as rising trian zone for lateral access through that impedes the migration of the seas meet seawalls, restoration proj- the voluntary granting of easements MHWL will ensure the continued ects have other positive implications by littoral property owners. The existence of a wet sandy beach on for public access. First, in order to continued... 21 FEELING THE SQUEEZE accessible and environmentally safe applicant before the DEP may issue from page 21 offshore sand to nourish its beaches.68 a permit. One such criterion is that The dilemma has sparked politically the proposed project will not interfere charged conflicts between counties with public access,77 defined under throughout southern Florida and the Act as: some have resorted to trucking in [T]he public’s right to laterally receive state funds, a project must sand purchased from central Florida, 62 traverse the sandy beaches of this provide for “adequate public access.” a practice that is more expensive state where such access exists on Second, and more significantly in and logistically difficult.69 In a sign or after July 1, 1987, or where the relation to lateral access, upon com- of true desperation, Broward County public has established an access- mencement of a restoration project, has gone so far as to consider making way through private lands to lands an erosion control line (ECL) is es- sand out of recycled glass.70 seaward of the mean high tide or tablished and replaces the MHWL Finally, any increase in public ac- water line by prescription, prescrip- as the legally significant boundary cess provided by beach restoration tive easement, or any other legal by which to determine title to coastal projects may be short-lived. If beach 78 63 means. lands. In other words, the common restoration is not commenced within law ambulatory boundary ceases to two years following the establishment The definition also declares, “devel- operate and title to all lands seaward of the ECL or the restoration project opment or construction shall not of the ECL, whether wet or dry sand is halted for a period exceeding six interfere with such right of public beach, is vested in the state. It follows months, the ECL becomes null and access unless a comparable alter- that once the ECL is established, the void and title to coastal land reverts native accessway is provided.”79 If common law “no longer operate[s] to back to the MHWL under common the DEP determines that a develop- increase or decrease the proportions law. 71 The same result is reached if ment’s interference with public ac- of any upland property lying land- the entity charged with maintain- cess is unavoidable in order to protect ward of [the ECL], either by accretion ing the restored beach fails to do the beach or an endangered upland or erosion or by any other natural or so.72 Absent vigilant, perpetual, and structure, it may require, as a condi- artificial process.”64 The functional costly upkeep, beach restoration and tion of the permit, that the developer result of this statute is the creation nourishment offer only a temporary provide alternative access.80 Finally, of a new dry sand beach, accessible solution to increased lateral access in any structure that does not meet such by the public. the face projected sea level rise. requirements of the Act will be de- Despite these boons to public ac- clared a public nuisance and may be cess, the practice of beach restoration B. Coastal Construction removed upon request of the DEP.81 and nourishment is an expensive Permits Though, at first blush, these provi- approach to a complex and perma- In addition to restoring and nour- sions seemingly provide robust protec- nent problem. Armored and heavily ishing our beaches, the Act declares tion for public access, the width of any developed coasts have created barri- that it is in the public interest “to mandatory alternative access may ers beyond which shorelines cannot preserve and protect them from not be required to exceed the width of migrate, as they would naturally. imprudent construction which can the access that will be obstructed as a Without the addition of new sand, jeopardize the stability of the beach- result of the permit being granted.82 these beaches become increasingly dune system, accelerate erosion, pro- This limitation on permit conditions narrow. Over the last 10 years, the vide inadequate protection to up- is likely a direct response to the U.S. state of Florida has thrown $393 land structures, endanger adjacent Supreme Court’s regulatory takings million in matching funds onto its properties, or interfere with public jurisprudence in which the Court has beaches through nourishment proj- beach access.”73 To this end, the Act held that there must be an ‘essential ects.65 It is estimated that local, state, requires that any individual or en- nexus’ between the legitimate state and federal entities spend roughly tity wishing to engage in construc- interest and the condition on the $100 million each year in efforts to tion below a line referred to as the permit.83 The Court also requires a maintain the state’s shoreline.66 This Coastal Construction Control Line rough proportionality between the continuous battle against the forces or CCCL first obtain a coastal con- projected impact of development and of nature fought along hundreds of struction permit, issued by the DEP.74 the permit conditions.84 Because the miles of beach may not be economi- Coastal construction activities below consequences of coastal armoring cally feasible in the long term. the MHWL must obtain a similar structures such as diminished sand Even if the money keeps flowing, permit, which is consolidated with supply and subsequent interference the sand may not. A second major federal approval and authorization to with lateral access are often delayed problem facing beach nourishment use state lands.75 “Coastal construc- rather than immediately perceptible, projects is a shortage of sand, namely tion” is defined broadly and includes it is difficult to condition permits to “beach quality sand.” Beach quality “any work or activity which is likely account for a development’s actual sand is defined by regulation as sand to have a material physical effect on impacts that may occur over the life “similar to the native beach sand in existing coastal conditions or natural of the structure. Moreover, coastal both coloration and grain size” and shore and inlet processes.”76 construction permits are just that – free from foreign debris.67 As of Feb- The Act and Florida Administra- construction permits. Unlike other ruary 2014, Miami-Dade County has tive Code set forth a number of stan- environmental permit regimes, there reportedly used the last of its easily dards that must be met by a permit is no accompanying operation permit

22 that must be renewed periodically, of construction permits on eroding Beach v. Board of Trustees of Internal Imp. based on long term monitoring and beaches (which may raise constitu- Trust Fund, 714 So. 2d 1060, 1062 (Fla. 4th 85 DCA 1998). inspection. tional issues) or conditioning them to 15 An exception to this rule exists where land

In order to protect lateral access, provide for the public’s future inter- is gained or lost through avulsion, defined as coastal construction permits theoreti- est in lateral beach access. Finally, a a sudden or violent event such as a hurricane, cally may be conditioned to require more sweeping judicial interpretation the effect of which is perceptible as it happens. In such a case, the boundaries between public a permittee to grant the local gov- of the doctrine of custom and recog- and private land do not move. ernment a future interest in certain nition that the customary use of the 16 James G. Titus, Rising Seas, Coastal Ero- property that would vest upon the beach should roll with the tide would sion, and the Takings Clause: How to Save occurrence of an event, such as when offer the greatest potential to realize Wetlands and Beaches Without Hurting Coastal the MHWL reaches a point at which the Supreme Court’s admonition that Property Owners, 57 Md. L. Rev. 1279, 1370 (1998). there is no longer a sandy beach. In “No part of Florida is more exclusive- 17 Id. at 1371. addition to ensuring an essential ly hers, nor more properly utilized by 18 Fla. Const. art. X, § 11. nexus and rough proportionality of her people than her beaches.”89 19 Id. such a permit condition, a further 20 Fla. Const. art. II, § 7(a). 21 Walton County v. Stop Beach Renourish- difficulty with the use of future inter- Endnotes: ment, Inc., 998 So. 2d 1102, 1110-1111 (Fla. ests as a sea level rise adaptation tool 1 Carly Grimm and Amanda Broadwell are 2008) aff’d sub nom. Stop the Beach Renourish- may be the common law rule against third year law student associates in the Con- ment, Inc. v. Florida Dept. of Envtl. Prot., 560 perpetuities, codified in Florida Stat- servation Clinic at the University of Florida U.S. 702 (2010). Levin College of Law, directed by Legal Skills 22 ute § 689.225. The rule states that a Caldwell and Segall, supra note 4, at 555. Professor Thomas T Ankersen. Ankersen also 23 Id. at 554. non-vested property interest in real serves as statewide legal specialist to Florida 24 Id. at 555. property is invalid “unless: 1) when Sea Grant, which provides partial support to 25 City of Daytona Beach v. Tona-Rama, Inc., the interest is created, it is certain the Clinic’s marine and coastal project portfolio. 294 So. 2d 73 (Fla. 1974). 2 to vest or terminate no later than City of Daytona Beach v. Tona-Rama, Inc., 26 Id. at 75. 294 So. 2d 73, 75 (Fla. 1974). 27 Id. at 78. 21 years after the death of an indi- 3 Beaches and Coastal Systems: Why Restore 28 Id. vidual then alive; or 2) the interest Eroded Beaches? Florida Department of En- 29 Trepanier v. Cnty of Volusia, 965 So. 2d 276, either vests or terminates within vironmental Protection (February 28, 2013), 290 (Fla. 5th DCA 2007). 90 years after its creation.”86 Under http://www.dep.state.fl.us/beaches/programs/ 30 Id. (emphasis in the original). 31 Florida’s current laws, therefore, if becp/restore.htm. Erosion is the result of both Id. at 293 (emphasis added). natural and human activity. As of early 2013, 32 Id. none of the events specified by the 387 miles of sandy beaches had experienced 33 Downing v. Bird, 100 So. 2d 57, 64 (Fla. grant of a future interest occur within “critical erosion,” a level of erosion threaten- 1958); see also Trepanier, 965 So. 2d at 284. 90 years to trigger the vesting of such ing substantial development, recreation, and 34 Id. interest, the future interest fails and environmental interests. Id. 35 Trepanier, 965 So. 2d at 285. 4 Meg Caldwell and Craig Holt Segall, No Day 36 Id. the permittee holds the land in fee at the Beach: Sea Level Rise, Ecosystem Loss, 37 87 Richard J. McLaughlin, Rolling Easements simple. For this reason, the “use of and Public Access Along the California Coast, As A Response to Sea Level Rise in Coastal future interests generally represents 34 Ecology L.Q. 533, 540 (2007). Texas: Current Status of the Law After Sever- a complex, arcane, and limited ability 5 This article assumes that current sea level ance v. Patterson, 26 J. Land Use & Envtl. L. to aid local governments in efforts to rise trends and sea level rise acceleration sce- 365, 369 (2011). narios proffered by the Intergovernmental 38 Titus, supra note 16, at 1313 (1998). improve their long-term coastal re- Panel on Climate Changes are accurate. In- 39 McLaughlin, supra note 37, at 369 (2011). silience and efforts to adapt to rising tergovernmental Panel on Climate Change, 40 Id. at 370. sea levels.”88 Climate Change 2013: The Physical Science 41 Tex. Nat. Res. Code § 61.011(a) (2013). Basis, (2013), http://www.ipcc.ch/report/ar5/ 42 McLaughlin, supra note 37, at 371 (2011). wg1/#.Uvf2MUKwLGk. 43 Id. at 372. Conclusion 6 Lateral access is to be distinguished from 44 Tex. Nat. Res. Code § 61.025(a) (2013). Neither the common law nor the “perpendicular access” to the beach, which 45 Matcha v. Mattox on Behalf of People, 711 acts of the state legislature and its refers to the ability of the public to navigate S.W. 2d 95, 98 (Tex. App. 1986). agencies provide sufficient protec- from highways and parking lots to the sand. 46 Severance v. Patterson, 370 S.W. 3d 705, 730 7 tion for lateral access along Florida’s For a compendium of beach access legal lit- (Tex. 2012). erature related to Florida see generally Public 47 2013 Texas House Bill No. 325, Texas shores in a time of rising seas and a Rights in Water, Florida State Law Research Eighty-Third Legislature (emphasis added to diminishing and increasingly costly Center, (Feb. 23, 2012), http://guides.law.fsu. proposed language). sand supply. Adopting measures to edu/content.php?pid=188286&sid=1580350. 48 Matthews v. Bay Head Improvement Ass’n, allow the public limited ingress to 8 Caldwell and Segall, supra note 4, at 471 A. 2d 355, 365 (N.J. 1984). 551-552. 49 Id. private property to circumvent ob- 9 Norwood Gay, Tidelands, 20 Stetson L. 50 State ex rel. Thornton v. Hay, 462 P. 2d 671, structions as Montana has done will Rev. 143 (1990), 676 (Or. 1969). help to avoid the trespass scenario 10 See Martin v. Waddell’s Lessee, 41 U.S. 367 51 Montana Coal. for Stream Access, Inc. v. described in this article’s introduc- (1842). Curran, 682 P. 2d 163, 172 (Mont. 1984). 11 52 tion. Were Florida law to reflect a See Mumford v. Wardwell, 73 U.S. 423, 436 Jennifer A. Sullivan, Laying Out an “Unwel- (1867). come Mat” to Public Beach Access, 18 J. Land prospective consideration of the im- 12 Fla. Const. art. X, § 11. Use & Envtl. L. 331, 341 (2003). pact of coastal construction on the 13 Walton County v. Stop Beach Renourish- 53 Id. at 342. public’s right to a wet sandy beach ment, Inc., 998 So. 2d 1102, 1109 (Fla. 2008) 54 Id. at 343. under the public trust doctrine, the aff’d sub nom. Stop the Beach Renourishment, 55 Id. at 344. Inc. v. Florida Dept. of Envtl. Prot., 560 U.S. 702 56 See, Fla. Stat. Chapter 161. causes of interrupted lateral access (2010). 57 Fla. Stat. § 161.088 (2013). may be addressed more directly. Such 14 State v. Black River Phosphate Co., 13 So. 58 Id. an approach would include the denial 640, 648 (Fla. 1893); see also City of West Palm 59 Fla. Stat. § 161.101(1) (2013). continued... 23 The Florida Bar 651 E. Jefferson St. Tallahassee, FL 32399-2300

ishment--tou_n_1346656.html. free from future audits, empirical research sug- FEELING THE SQUEEZE 67 Fla. Admin. Code R 62B-33.002(8) (2013). gests that denial rates of coastal construction from page 23 68 Lizette Alvarez, Where Sand is Gold, the permits by DEP are notably low. A large major- Reserves are Running Dry, N.Y. Times, (Aug. ity of permit applications are approved with no 24, 2013), http://www.nytimes.com/2013/08/25/ system in place for continued inspection. See us/where-sand-is-gold-the-coffers-are-running- Thomas Ruppert et al., Eroding Long-Term

60 dry-in-florida.html?pagewanted=1&_r=0. Prospects for Florida’s Beaches: Florida’s Coast- Fla. Stat. § 161.088 (2013). 69 61 Id. al Management Policy, University of Florida Fla. Stat. § 161.101(1) and (2) (2013). The 70 Id. Institute for Food and Agricultural Sciences, 82 Florida Administrative Code defines “critically 71 Fla. Stat. §161.211(1) (2013). (August 19, 2008), http://www.law.ufl.edu/_pdf/ eroded” shoreline to include beaches “where 72 Fla. Stat. §161.211(2) (2013). academics/centers-clinics/clinics/conservation/ natural processes or human activities have 73 Fla. Stat. § 161.053(1)(a) (2013) (emphasis resources/coastal_management_finalreport. caused, or contributed to, erosion and recession added). pdf. of the beach and dune system” to the extent 74 Fla. Stat. § 161.053(2)(a) and (4) (2013). 86 Fla. Stat. §689.225(2)(a) (2013). that development, recreational, environmen- 75 Fla. Stat. §161.041(1) (2013). Section 87 Thomas Ruppert, Use of Future Interests in tal, or cultural resources are threatened. The 161.055 consolidates coastal construction Land as a Sea-Level Rise Adaptation Strategy definition also includes shorelines that may permits, environmental resource permits and in Florida, Florida Sea Grant College Program, not currently be eroded but “their inclusion sovereign submerged lands authorizations https://www.flseagrant.org/wp-content/up- is necessary for continuity of management of for the DEP to consider concurrently and is- loads/2012/08/Use-of-Future-Interests_8.8.12. the coastal system or for the design integrity sue a single “joint coastal permit.” Fla. Stat. pdf. A possible solution to the 90-year limita- of adjacent beach management projects.” Fla. §161.055(1) and (2) (2013). tion imposed by Florida Statute § 689.225 is Admin. Code R. 62B-36.002(5). 76 See Fla. Stat. §161.021 (2013). the use of a trust as the third party in which 62 Fla. Stat. § 161.101(12) (2013). 77 Fla. Admin. Code R. 62B-33.005(4)(g). the future interest will vest upon the occur- 63 Fla. Stat. § 161.141 and § 161.191 (2013). 78 Fla. Stat. § 161.021(1) (2013). rence of the specified condition. Section (2)(f) of The constitutional validity of these provision 79 Id. this statute states that as to any trust created have been challenged and upheld. See Walton 80 Fla. Stat. § 161.041(1)(a) (2013). after December 31, 2000, the provisions of § County v. Stop Beach Renourishment, Inc., 998 81 Fla. Stat. § 161.053(6) (2013). 689.225(2) shall apply to a non-vested property So. 2d 1102 (Fla. 2008). 82 Id. interest or power of appointment contained in a 64 Fla. Stat. § 161.191 (2013). 83 Nollan v. California Coastal Com’n, 483 U.S. trust “by substituting 360 years in place of ‘90 65 Lilly Rockwell, Impact: Beach and Shore, 825, 836-37 (1987). years’ in each place such term appears in this Florida Trend (Jul. 8, 2013), http://www.florida- 84 Dolan v. City of Tigard, 512 U.S. 374, 391 section unless the terms of the trust require trend.com/article/15815/span-stylecolor777im- (1994). The Supreme Court recently clarified that all beneficial interests in the trust vest pactstyle-beach-and-shore. that these requirements apply even where a or terminate within a lesser period.” Fla. Stat. 66 Tamara Lush, Beach Replenishment A permit is denied. Koontz v. St. Johns River § 689.225(2)(f)(2013). Tough Issue In Florida, St. Joseph Peninsula, Water Management Dist., 133 S.Ct. 2586, 2596 88 Id. Huffington Post (Mar. 15, 2012), http://www. (2013). 89 City of Daytona Beach v. Tona-Rama, Inc., huffingtonpost.com/2012/03/15/beach-replen- 85 Not only are permitted construction projects 294 So. 2d 73, 75 (Fla. 1974).