An Overview of Riparian Rights in Florida by Brendan Mackesey1*

Vol. XLI, No. 1 THE REPORTER October 2020

THE ENVIRONMENTAL AND LAND USE LAW SECTION

Rachael Santana, Chair • Jacob T. Cremer, Nikki T. Williams, Co-Editors • Derek Howard, Felicia Kitzmiller, Assistant Editors • www.eluls.org An Overview of Riparian Rights in Florida by Brendan Mackesey1*

Introduction The title to land under n.3 (citing Board of Trustees of the This article provides a concise ref- navigable waters, which have Internal Improvement Trust Fund erence point for the attorney who not been alienated, including v. Sand Key Associates, Ltd., 512 represents—or sues—a riparian (wa- beaches below the mean high So. 2d 934, 936 (Fla. 1987)). For the terfront) owner. By no means is this water line, is held in trust sake of brevity, this article only uses article intended to be exhaustive. by the State, by virtue of its the term “riparian” owner. Second, Quite the opposite . . . each one of the sovereignty, in trust for all the it is important to remember that different riparian rights discussed people. Sale of such lands may riparian rights—except for the right below warrants its own law review be authorized by law, but only to reasonable use4—only attach to article. Notwithstanding, the author when in the public interest. properties abutting “navigable” wa- hopes that this article provides a Private uses of portions of such ters.5 See Broward v Mabry, 50 So. helpful introduction for those un- lands may be authorized by law, 826, 830 (Fla. 1909); Martin v. Busch, familiar with riparian rights and a but only when not contrary to 112 So. 274, 277 (Fla. 1927). The useful refresher for others. the public interest. test for navigability asks whether, Origins of Riparian Rights Florida’s public trust doctrine at the time Florida joined the Union protects the public’s right to engage in 1845, the waterbody was (1) in its The concept of riparian rights in navigation, fishing, bathing, and ordinary and natural state, (2) used originated in England, where title commerce over navigable waters.1 or capable of being used by any wa- to navigable tidelands is held by Riparian owners share these rights tercraft (3) of a sufficient capacity of the King (the sovereign) in trust for with the public.2 However, riparian the year (4) as a public highway for the public. United States v. Ger- owners also enjoy special rights—dis- commerce?6 lach Livestock, 339 U.S. 725, 744 tinct from the public—by virtue of (1950); Shively v. Bowlby, 152 U.S. 1, The importance of “navigability” their upland ownership: (1) the right bears re-mentioning: Riparian rights 2 (1894). When the colonies rebelled to access; (2) the right to a view; (2) against England and became sover- the right to wharf out; (4) the right eign, each new state acquired title to to accretions; and (5) the right to See “Riparian Rights” page 13 the submerged lands of “navigable” reasonable use3. See Walton County waters within their borders. Martin v. Stop the Beach Renourishment, 998 v. Lessee of Wadell, 41 U.S 367, 410 So. 2d 1102, 1111 (Fla. 2008) (citing INSIDE: (1842). Other states—including numerous Florida Supreme Court Florida—gained similar rights when cases). This article addresses each of From the Chair...... 2 they joined the Union via the Equal these five riparian rights. First, how- Footing Doctrine. Pollard’s Lessee v. From the Chair – Historical Messages from ever, it will discuss riparian rights Past ELULS Chairs...... 3 Hagan, 44 U.S. 212, 228-29 (1845); generally. see also Geigor v. Filor, 8 Fla. 325, On Appeal...... 5 When Riparian Rights Attach 338 (1859). Rights of the public to For Whom The Permit Tolls...... 7 use “navigable” waters evolved into At the outset, it is important to the public trust doctrine. See State note that a “riparian” owner actually Environmental Case Law Update...... 8 v. Black River Phosphate Co., 13 So. only refers to the owner of property Meet the 2020-21 ELULS Executive 640 (Fla. 1893). In Florida, the public abutting a river or stream; a “lit- Council...... 11 trust doctrine is codified at Article X, toral” owner refers to the owner of a New Resiliency Committee...... 16 Section 11 of the State Constitution, property abutting an ocean or lake. which reads: Walton County, 998 So. 2d at 1102 From the Chair by Rachael Bruce Santana

Dear ELULS Section Member, practice. On August 14, 2020, over Rica, Keystone, the Bahamas, and In my first Chair’s message I laid twenty Past Chairs joined this year’s the Florida Keys. Due to Covid-19, out for you the theme of the Environ- Officers for a Past Chairs’ Roundtable this year’s Long Range Planning Re- mental and Land Use Law Section zoom conference. We are so honored treat was rescheduled to the first this year- ELULS 2020- Looking and appreciative that these distin- weekend in May and will be held at Backwards, Looking Forwards. guished professionals made the effort the Ritz Carlton on Sarasota Bay. The theme really evolved from the to chat with us and have agreed to We’d love to have you join us for some phrase “hindsight is 20/20.” It is easy serve as our Council of Wisdom. The much needed in person interaction~ to look backwards at what you should meeting was a great success, reunit- so mark your calendars now. ing colleagues and friends- some of have or could have done once you Within this Section Reporter you already know what happens. It is whom had not seen each other in decades. These Past Chairs achieved will find the first of several Histori- much harder to look ahead and fig- great things, such as growing Sec- cal Chair’s messages to go along with ure out where you would like to go. tion membership from 14 to over the Looking Backwards part of the As ELULS approaches its 50th an- 1,000 members in a handful of years, theme. We hope you enjoy reading niversary, that is exactly what the raising public awareness of environ- about the past accomplishments of Executive Council is endeavoring to mental issues, and promoting equal the Section. This Reporter also con- do- to envision the best version of the access and pro bono opportunities for tains a Meet and Greet of this year’s environmental and land use law com- those in need. What also struck me Executive Council and Officers. Feel munity at a half century. We started was how much fun everyone had and free to reach out to any one of us if that journey by reengaging with the the relationships they built during former leadership of the Section. you are looking for a way to connect their years of service with the Sec- and get involved. Many, if not most, of the founding tion. There was much debate among attorneys and key players in environ- the Past Chairs as to which Long mental and land use law have served Range Planning Retreat was the Warm Regards, as an ELULS Chair and are still in best- with top contenders as Costa Rachael Santana

2 From the Chair – Historical Messages from Past ELULS Chairs

This year the Section Reporter Water Quality and Water Man- to which they operate and the will be highlighting historical agement. This seminar was held policies and goals. The seminar Chair’s Messages as part of the at the meeting on October 25, was organized by Kenneth Hoff- “Looking Backwards” element of 1974. Speakers were Ross A. man of the Attorney General’s our theme. We want to give a spe- McVoy, general counsel for the office. Subsequent to the initial cial thanks to Irene Quincy for Trustees of the Internal Im- address by Attorney General providing the compilation of doc- provement Trust Fund, James Robert Shevin, there was an uments. The featured message Brindell of the Department of analysis of each agency by ei- comes Committee Chair Joseph Pollution Control, and Ralph ther the executive director or the Fleming during the 1974-1975 Bogardus of the Central and executive director’s representa- year. The Section had humble Southern Flood Control Dis- tive and the staff counsel. This beginnings as a Committee of trict. The purpose of the meeting enabled an understanding of not The Florida Bar but was soon was to enable members of the only what the purpose of the elevated to a Section. Enjoy! committee and other interested agency was as determined by the guests to obtain an analysis of ______applicable laws, but also gave the functions of the Trustees those in the audience an insight by Joseph Z. Fleming, Chairman of the Internal Improvement as to how the agency operated, Trust Fund, the Department of how its decisions were made and Pollution Control and the Flood The Environmental Law Commit- its policies were implemented. Control Districts. Representa- tee, recognizing the need to provide Because of the way in which tives of each of the agencies dis- information to members of the Bar the seminar was structured by cussed the agency jurisdiction, regarding environmental law, spon- Kenneth Hoffman, there were the statutes pursuant to which sored a series of seminars through- lectures not only from attorneys, their agency operated and an- out the state, Each meeting of the but from scientists and adminis- swered specific questions from trators. This seminar resulted in Environmental Law Committee was the audience. utilized for the purpose of enabling a unique understanding of the practitioners to keep up with the ever 2. The Tallahassee Seminar on inter-relationship of the func- changing state and federal regula- State Environmental Agen- tions of the attorneys and the tions applicable to the environmental cies. This seminar was held on environmental experts working law practice. February 13 and 14, 1975, and with the various agencies. was cosponsored by state agen- Set forth below are the semi- 3. The Miami Seminar on Private cies. It was a two-day in-depth nars which were sponsored by the Compensation in Oil Spill Situ- presentation of an analysis of committee: ations was held on February 26, the state environmental regu- 1. The Orlando Seminar on State latory agencies, the laws and Environmental Laws Regulating rules and regulations pursuant continued...

This newsletter is prepared and published by the Environmental and Land Use Law Section of The Florida Bar. Rachael Santana, West Palm Beach ...... Chair Susan Roeder Martin, Boca Raton ...... Chair-Elect Josh Coldiron, Tampa ...... Treasurer Robert Volpe, Tallahassee...... Secretary Jon Harris Maurer, Tallahassee ...... Immediate Past Chair Jacob T. Cremer, Tampa ...... Co-Editor Nikki T. Williams, Orlando ...... Co-Editor Derek Howard, Key West...... Assistant Editors Felicia Kitzmiller, Tallahassee ...... Assistant Editors Maliwan Theo, Tallahassee ...... Graphic Artist Cheri Wright, Tallahassee ...... Section Administrator Statements or expressions of opinion or comments appearing herein are those of the contributors and not of The Florida Bar or the Section.

3 HISTORICAL MESSAGES: from previous page

1975. Speaker was Thomas R. Post, attorney and port warden for the Port of Miami. This was an excellent presentation, not only of the history of the common law, but the current statutory laws relating to oil spills. 4. The Amelia Island Federal Envi- ronmental Laws Seminar. This seminar was held at Amelia Is- land on May 16 and 17, 1975, and involved an analysis of the applicable federal laws with an emphasis on those laws regulating air and water quality, the role of government in planning decisions and the federal land use legislative proposals. Among the speakers were Assistant Sec- retary of HUD and director of the New Communities Program, Otto Stolz; Colonel Emmett C. Lee, Jr., of the Army Corps of Engineers, Jacksonville District; Orin Briggs of the Regional Of- fice of the Environmental Pro- tection Agency; Vance Hughes, counsel for the Environmental Protection Agency in the Hol- land decision (a major decision interpreting the Federal Wa- ter Pollution Control Act); and Daniel O’Connell, past executive director of the Florida En- vironmental Land Management Study Commission. In addition to the seminars, the committee sponsored the publication of the Environmental Law column in The Florida Bar Journal. Arthur Harper, editor of the column, did an excellent job in insuring that there were a series of excellent and highly topical articles regarding environmental law. The committee also wishes to thank Linda Yates for her coopera- tion in connection with the Journal publication and Debbie Ginn who assisted with the seminars.

JOSEPH Z. FLEMING, Chairman

4 ON APPEAL by Larry Sellers, Holland & Knight LLP

Note: Status of cases is as of Octo- FIRST DCA its energy system into constitutional ber 6, 2020. Readers are encouraged City of Destin v. Wilson, et al., Case compliance. Status: Notice of appeal to advise the author of pending ap- No. 1D20-2585. Appeal from final filed July 1, 2020. peals that should be included. order denying motion for attorney’s Uhlfelder v. DeSantis, Case No. FLORIDA SUPREME COURT fees pursuant to Section 120.569(2) 1D20-1178. Appeal from trial court (e) related to litigation involving a order granting motion to dismiss The City of West Palm Beach, Inc., challenge to the modification of a with prejudice plaintiff’s amended v. Haver, et al., Case No. SC20-1284. DEP permit in connection with the complaint for emergency injunctive Notice to invoke discretionary juris- th dredging of East Pass in Destin, Flor- relief, which sought to compel Gover- diction to review the 4 DCA decision ida. Status: Notice of appeal filed nor DeSantis to close all of Florida’s in Haver v. City of West Palm Beach, September 3, 2020. beaches. Status: Notice of appeal 4D19-1537 (Jun. 10, 2020), in which filed April 9, 2020. the court certified direct conflict with 1000 Friends of Florida, Inc, et al., decisions of other district courts of v. State of Florida, et al., Case No Blue Water Holdings SRC, Inc. v. appeal, that is, Detournay v. City of 1D20-2135. Appeal from final order of Santa Rosa County, Case No. 1D19- Coral Gables, 127 So. 3d 869 (Fla. 3rd dismissal, dismissing amended com- 4387. Appeal from final summary DCA 2013), and Chapman v. Town of plaint challenging section 7, subsec- judgment denying Harris Act claim Redington Beach, 202 So. 3d 979 (Fla. tion (8)(c), Chapter 2019-165, Laws of for failure to comply with the Act’s 2nd DCA 2019). 45 Fla. L. Weekly Florida, that provides for prevailing procedural requirements to submit a D1406c. Status: Notice to invoke party attorney’s fees and costs in valid appraisal relating to the denial filed August 27, 2020. certain land development litigation, of a permit for a construction and as unconstitutional. (This provision demolition debris landfill. Status: Classy Cycles v. Panama City is now codified in section 163.3215(8) Oral argument held on September Beach, Case No. SC20-118. Notice (c), Florida Statutes (2020)). Status: 15, 2020. of intent to seek review of 1st DCA Notice of appeal filed July 17, 2020. Vickery v. City of Pensacola, Case decision affirming trial court order No. 1D19-4344. Appeal from trial upholding two City of Panama Beach Neely Paul Towe as Trustee v. Fish court order denying motion to dis- ordinances restricting and then pro- and Wildlife Conservation Commis- solve a temporary injunction to pre- hibiting the rental of scooters ef- sion, Case No. 1D20-2066. Appeal vent a property owner from removing fective September 2020. 44 Fla. L. from FWC final order dismissing a live oak tree located in the North- Weekly D2729a (1st DCA Nov. 13, amended petition for hearing seeking to challenge the renewal of a marine ern Hill Preservation District, part 2019). Judge Makar filed a dissent- of Pensacola governed by specific ing opinion. Status: Petition for turtle permit. Status: Notice of appeal filed July 13, 2020. ordinances to protect Heritage trees. review denied June 29, 2020. Status: Notice of appeal filed Decem- Florida Wildlife Federation, Inc., Delaney Reynolds, et al. v. State of ber 3, 2019. et al. v. Jose Oliva, Bill Galvano Florida, et al., Case No. 1D20-2036. Appeal from order granting motions John S. Donavan, et al., v. DEP and The Florida Legislature, Case and City of Destin, Case No. 1D19- No. SC19-1935. Notice to invoke to dismiss with prejudice the first amended complaint by which eight 4101. Appeal from DEP final order discretionary jurisdiction to review issuing consolidated joint coastal per- st young Floridians seek declaratory 1 DCA decision affirming in part, mit and sovereign submerged land and injunctive relief, asserting injury reversing in part and remanding authorization to the City authorizing because of “defendants’ deliberate in- the trail court’s Final Judgment for periodic maintenance dredging of the difference to the fundamental rights Plaintiffs: (1) interpreting Amend- federally-authorized East Pass in of life, liberty and property, and the ment 1 to limit the use of funds in Destin Harbor navigation channels. the Land Acquisition Trust Fund pursuit of happiness, which includes Status: Motion to dismiss as moot created by Article X, Section 28 to a stable climate system in violation of filed on July 22, 2020. the acquisition of conservation lands Florida common-law and the Florida GI Shavings, LLC v. Arlington for other property interests the state Constitution.” The complaint further Ridge Community Association, Inc. did not own on the effective date of asserts that the “fossil fuel energy and Florida Department of Environ- the amendment and thereafter, and system” created and operated by the mental Protection, Case No 1D19- to approve, manage, restore natural defendants does not, and cannot, en- 3711. Petition for review of DEP systems thereon, and enhance public sure that the plaintiffs will grow to final order approving a consent order access or enjoyment of those conser- adulthood safely, enjoying the same between GI Shavings and DEP but vation lands; and (2) determining rights, benefits and privileges of earlier-born generations of Floridians. denying the application for revisions the numerous specific appropriations to its air permit for a wood chip dryer. The complaint sought declaratory inconsistent with that interpreta- Status: Notice of appeal filed October relief and an injunction compelling tion are unconstitutional. 44 Fla. L. 14, 2019. Weekly D2268a. Status: Petition for defendants to develop and imple- review denied June 29, 2020. ment a comprehensive plan to bring continued...

5 ON APPEAL: order dismissing a petition challeng- 2019). Status: Motions for rehear- from previous page ing the extension of an ERP pursu- ing and rehearing en banc denied on ant to section 252.363, F.S., which July 28, 2020. provides for the tolling and extension Great American Life Insurance Co. City of Jacksonville v. Dames Point of certain permits and other authori- v. The Buccaneer Commercial Unit Workboats, LLC and Florida Depart- zations following the declaration of a A, etc., et al., Case No. 4D19-868. ment of Environmental Protection, state of emergency. Status: Order Petition to review DEP final order Case No. 1D19-1728. Petition to granting voluntary dismissal filed granting consolidated ERP and sov- review DEP final order granting con- August 27, 2020. ereign submerged land lease for com- solidated ERP and sovereign sub- mercial unit A dock, after the ALJ FOURTH DCA merged lands lease for a commercial/ determined that the applicants met industrial tugboat and marine barge The Board of Trustees of the In- all applicable navigational criteria. loading facility on the St. Johns Riv- ternal Improvement Trust Fund of Status: Affirmed per curiam June er. Status: Oral argument scheduled the State of Florida v. Waterfront 18, 2020. for October 12, 2020. ICW Properties, LLC and Wellington Arms, A Condominium, Inc., Case FIFTH DCA Imhof, et al. v. Walton County, et al., Case No. 1D19-980. Appeal from No. 4D19-3240. Petition to review Glenda Mahaney v. Garber Hous- a final judgment in favor of the county final judgment quieting title in the ing Resorts, LLC and DEP, Case No. in an action brought by the plaintiffs name of the appellee and against 5D19-3517. Appeal from DEP final pursuant to Section 163.3215 chal- the Trustees as to certain submerged order denying appellant’s petition for lenging the consistency of a develop- lands constituting a part of Spanish administrative hearing with preju- ment order with the county’s compre- Creek located in the Town of Ocean dice and approving a site rehabilita- hensive plan. The trial court followed Ridge. Status: Oral argument sched- tion completion order. Status: Notice the 2d DCA’s decision in Heine v. Lee uled for December 8, 2020. of appeal filed November 27, 2019. nd County, 221 So.3d 1254 (Fla. 2 DCA Haver v. The City of West Palm 11th CIRCUIT COURT OF AP- 2017), which held that a consistency Beach, et al., Case No. 4D19-1537. PEAL Appeal from circuit court’s final challenge is limited to whether the Florida Defenders of the Environ- order dismissing with prejudice a development order authorizes a use, ment, et al., v. U.S. Forest Service, intensity, or density of development five-count complaint in a zoning en- Case No. 20-12046. Appeal from that is in conflict with the compre- forcement action, alleging that the order granting the federal defen- hensive plan. Note: Regular readers defendants failed to enforce zoning dant’s motion to dismiss a complaint will recall that the 3d DCA recently codes. Status: On June 10, 2020, the alleging that the state has operated affirmedper curiam a similar ruling court reversed the dismissal of the the Rodman Dam without a permit. in Cruz v City of Miami, Case No. first three counts, citing the Florida Status: Notice of appeal filed June 3D17-2708. Status: Oral argument Supreme Court’s decision in Bouch- 3, 2020. held January 15, 2020. er v. Novotny, 102 So. 2d 132 (Fla. 1958), in which the court held that UNITED STATES SUPREME SECOND DCA “where municipal officials threaten COURT Kochman v. Sarasota County, et or commit a violation of municipal Maggie Hurchalla v. Lake Point al., Case No. 2D20-18. Petition for ordinances which produces an injury Phase I, LLC., et al., Case No. 20- writ of certiorari by an adjacent prop- to a particular citizen which is differ- 332. Petition for writ of certiorari erty owner to review a trial court’s ent in kind from the injury suffered to review decision by the Florida 4th denial of the petition for certiorari by the people of the community as a DCA upholding jury verdict finding with respect to the County’s approval whole[,] then such injured individual Ms. Hurchalla liable for $4.4 million of the Siesta Promenade, a mixed- is entitled to injunctive relief in the in damages on a claim of tortious use project on Siesta Key. Status: absence of an adequate legal rem- interference with a contract for a Petition denied per curiam on July edy.” The court also certified conflict public project, due to her public com- 1, 2020; motion for written opinion with the Third District’s opinion in ments in opposition to the project. 44 denied on August 12, 2020. Detournay v. City of Coral Gables, Fla. L. Weekly D1564a (Fla. 4th DCA Denlinger v. Southwest Florida 127 So. 3d 869 (Fla. 3rd DCA 2013), 2019), rev. denied Case No. SC19- Water Management District and and the Second District’s opinion 1729 (Fla. Apr. 13, 2020). Status: Summit View, LLC, Case No. 2D19- in Chapman v. Town of Redington Petition for writ of certiorari filed on 3835. Appeal from a SWFWMD final Beach, 282 So. 3d 979 (Fla. 2nd DCA September 10, 2020.

6 For Whom The Permit Tolls – Section 252.363, Florida Statutes, and the COVID-19 Emergency by Jaime R. Maier, Attorney, Hill Ward Henderson, Tampa, Florida

Originally published in the Hill- Executive Order 20-52 (the “Ex- “natural emergency” definition, thus sborough County Bar Association ecutive Order”) , in which Governor effectively ending any debate on the LAWYER Magazine, May-June Ron DeSantis declared the COVID-19 question and ensuring that local gov- 2020 edition; Revised to reflect state of emergency, describes CO- ernments will afford permit-holders subsequent legal developments. VID-19 as a “Public Health Emer- the statutory extension. With the COVID-19 emergency gency.” “ Public Health Emergency” Section 252.363, Florida Statutes causing uncertainty across all mar- is not defined in Section 252.363, provides a 90-day window after the kets and industries right now, many Florida Statutes. However, Chapter conclusion of an emergency (and any developers and landowners are look- 252 of the Florida Statutes includes a extensions thereof) to notify a local ing for some relief. Section 252.363 cross-reference to Section 381.00315, government, in writing, of the intent to of the Florida Statutes is an avenue Florida Statutes which contains a def- exercise the extension. If a client’s ex- for relief from impending expiration inition of “Public Health Emergency” piration deadline is fast approaching dates and deadlines contained in per- that includes infectious diseases. The and the COVID-19 emergency is not mits and development orders. When Executive Order that declared the yet over, it may be beneficial to send the Governor of Florida declares a Zika Virus emergency similarly de- a letter to the appropriate jurisdiction state of emergency, Section 252.363, scribed Zika Virus as a “Public Health to put the jurisdiction on notice of the Florida Statutes tolls these deadlines Emergency.” Therefore it is not clear client’s intent to exercise the client’s until the end of the emergency, and from the “Public Health Emergency” rights under Section 252.363, Florida allows for an extension of the expira- terminology whether the Zika Virus Statutes when the emergency is over. tion date for however many days the or COVID-19 falls under the clas- The issuing authority may respond emergency lasted plus six months sification of “natural emergencies” with an acknowledgement of that (note that if emergencies overlap, the as contemplated by Section 252.363. right. Some jurisdictions will request overlapping days may only be counted The Florida Department of Busi- that the client formalize the use of the once in calculating the extension). ness and Professional Regulation is- extensions available under Section Section 252.363 of the Florida Stat- sued guidance on March 20 , 2020 252.363, Florida Statutes through utes has been used by many permit- (the “FDBPR Guidance”), specifying the respective jurisdiction’s process holders subsequent to Florida’s hur- that the COVID-19 emergency as for extending deadlines. Sending a ricane emergencies, and even after declared by Executive Order qualifies notice letter well before your client’s the Zika Virus emergency. as a “natural emergency” for pur- deadline is therefore advisable, to In 2019, however, Section 252.363 poses of tolling permits under Section provide enough time to determine if was revised to specify a “natural 252.363, Florida Statutes. When is- the issuing authority will require ad- emergency” as the only type of emer- sued, it was not clear from FDBPR’s ditional steps to extend the deadline gency that will toll and extend ex- Guidance whether this was a policy as result of the emergency. piration dates and deadlines. The decision for the COVID-19 emer- It is common for a local govern- other types of emergencies defined in gency specifically, or implied that ment’s land development code to con- Chapter 252, Florida Statutes include the term “natural emergency” will tain procedures for requesting dead- “manmade emergency” and “techno- cover viruses and/or “Public Health line extensions for certain types of logical emergency.” A “natural emer- Emergencies” for all purposes going development orders and permits. The gency” is defined in the statute as “an forward. The possibility existed that local government’s development order emergency caused by a natural event, a local government could deny an ex- and permit extensions could be used including, but not limited to, a hur- tension of a development order on the in tandem with a Section 252.363 re- ricane, a storm, a flood, severe wave grounds that “natural emergency” did quest, or could be used before the CO- action, a drought, or an earthquake.” not cover viruses or disease. VID-19 emergency is over to extend Though not exhaustive, this list does Perhaps unsurprisingly, litigation your client’s deadline before an exten- not specifically contemplate disease- as to whether “natural emergency” in- sion under Section 252.363, Florida or virus- related emergencies. Al- cluded viruses or diseases quickly en- Statutes is ripe. Many jurisdictions, though the Zika Virus emergency sued. In Abramson v. DeSantis, 2020 such as the City of Coral Springs, the did serve to toll and extend dead- WL 3464376 (Fla. 2020), petitioner City of Brooksville, St. Lucie County, lines under the statute, that emer- Abramson argued that the definition and Seminole County, have issued ex- gency occurred before the statute was of “natural emergency” did not include ecutive orders regarding the tolling of narrowed; therefore, the COVID-19 a virus pandemic, and, therefore, CO- various deadlines during local states emergency is the first virus-related VID-19-related emergency orders is- of emergency, which may benefit your emergency affecting Florida since sued by Governor DeSantis were void. clients as well. the revisions to Chapter 252 of the The Florida Supreme Court, however, Florida Statutes. held that a pandemic is covered by the 7 Environmental Case Law Update by Gary Hunter, Hopping Green & Sams

Manatee County v. Mandarin required wetland buffers for the pur- alleging that the wetland buffer pro- Development, Inc., 2020 Fla. App. pose of protecting and inspecting the visions were facially unconstitutional LEXIS 3568 (Fla. 2nd DCA 2020) conserved wetlands. In 2006, Kim- under the doctrine of unconstitu- (Opinion filed March 18, 2020) ball Hill Homes planned to develop a tional conditions, later withdraw- Manatee County (Manatee) ap- 41.2-acre parcel bisected by a linear ing an as applied challenge. Prior to pealed a final judgement finding that wetland. Approval was granted in trial, the court denied a motion for the Land Development Code (LDC) 2007, conditioned on the dedication summary judgement on the statute was facially unconstitutional. An ad- of conservation easements over iden- of limitations defense filed by Mana- ditional takings claim was affirmed tified wetland buffers. Riva Trace tee. After a bench trial, the court in favor of Mandarin Development subsequently purchased the property found that one section of the LDC was unconstitutional. (Mandarin), but the facial challenge in late 2007, reducing the density of to the constitutionality was subse- development yet not seeking a vari- On appeal, the Court addressed quently reversed. Therefore, the dis- ance to the wetland buffers. Shortly the specific question concerning when crete issue on appeal was whether the after, corporate successor Mandarin a statute of limitations begins to run statute of limitations begins to run on took ownership of the property. on a facial challenge to the constitutionality of a land use ordinance. a challenge to the facial constitution- After significant development, Manatee asserts that the statute of ality of a land use ordinance. Mandarin sought a variance from the limitations starts to run when the The matter involved provisions of wetlands buffer requirement. Mana- land use ordinance was originally Manatee County LDC that required tee responded that such relief was developers to dedicate conserva- not possible. Two years later, Man- tion easements to the County over darin filed a declaratory judgement continued... Visit Our Website eluls.org

8 CASE LAW UPDATE: ruling would not strip Mandarin from based on the Town’s land develop- from previous page moving forward with an as-applied ment code. In 2013, Jamieson applied challenge. For reasons not on the re- for a small-scale comprehensive plan cord, Mandarin elected to dismiss its amendment, which despite a favor- adopted in 1990. Mandarin argues as-applied challenge prior to the trial. able recommendation, was denied that the statute of limitations can Jamieson v. Town of Fort Myers in 2014. On appeal, Jamieson was never bar a challenge to a void ordi- Beach, 292 So.3d 880 (Fla. 2nd granted a MUD allowing one single- nance. Yet, the Court surmised that DCA 2020) (Opinion filed March family home per lot via a resolution. while the answer may be different in 25, 2020) However, the land development code still barred development on wetlands. an as-applied challenge, the statute At issue is whether a purchaser of limitations for a facial challenge In 2015, Jamieson applied for a vari- deemed to have notice of an earlier ance to the land development code, begins to run when the ordinance is enacted restriction is barred from which the Town did not process citing enacted or adopted. claiming it effects a taking. Alterna- that a variance of this kind would not In the context of land use ordi- tively, at issue is whether such claims be legally permissible. nances, facial constitutional chal- were ripe when the landowner still In 2016, Jamieson filed a Bert Har- lenges are based on a single harm, had “potential opportunities to secure ris claim. In response, the Town of- measurable and compensable when development rights for the property” fered to allow Jamieson to develop the statute is passed. Since the harm In 2002, Jamieson purchased sev- three lots but required this to repre- occurs immediately, the statute of en acres of platted vacant lands de- sent the “full amount of development limitations begins to run at the point veloped on three sides in the Town rights to which the property owner of enactment or adoption. Thus, Man- of Fort Myers Beach (Town). Prior is entitled” to under the 2014 resolu- atee was barred from bringing a de- to 1995, the land was under the ju- tion. Jamieson rejected the offer and claratory judgement as to the consti- risdiction of Lee County. In 1998, filed a three-count complaint alleg- tutionality, as the four-year statute the Town adopted a comprehensive ing inverse condemnation, partial of limitations began to run in 1990. plan that designated the entire prop- inverse condemnation, and a viola- In this case, the parcel was pur- erty as wetlands, permitting only one tion of the Bert Harris Act. The trial chased with full knowledge of the dwelling per twenty acres. This des- court granted summary judgement conditions imposed by Manatee. ignation was carried over from Lee in favor of the Town on the inverse Further, Mandarin proceeded with County’s comprehensive plan and condemnation count, holding that the development without ever mention- not supported by any environmental claim is not ripe. Soon after, the trial ing the facial unconstitutionality. In study. court granted summary judgement in fact, Mandarin failed to pursue any The property was subject to a “min- favor of the Town on the remaining remedy while accepting the benefits imum use determination” (MUD) counts based on the same reasoning. of development approval. Thus, the process for determining whether After the trial court entered final court “refuse[d] to hold that a devel- individual plats may be developed. judgement, Jamieson appealed. oper may dictate when the statute of Yet by 2003, the Town restricted the First, the trial court ruled that limitations begins for a facial chal- MUD process for property designated Jamieson was not entitled to relief lenge to the constitutionality of land as wetlands via their development as the property was clearly not eli- development ordinances by virtue of code. In 2010, Jamieson petitioned gible for development when it was its own actions.” the SFWMD and determined that purchased in 2002. In reversing this Additionally, it is arguable that only 61% of the property was wet- decision, the Court heavily relied on Mandarin could not have suffered land. However, the Town determined Palazzolo v. Rhode Island in conclud- any actual loss, as future owners that “no clear factual error” existed in ing that a transfer of property would would pay the purchase price re- the property’s current designation. In not bar an inverse condemnation flecting the burden of the ordinance. 2012, Jamieson applied for a MUD However, the court noted that this for all forty lots, which was denied continued...

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9 CASE LAW UPDATE: Electric Company, 2020 Fla. PUC impair the ability to prescribe fair, from previous page LEXIS 110 (Fla. P.S.C. 2020) (De- just, and reasonable rates. Further, cision issued April 16, 2020) TECO anticipates a de minimus im- On January 6, 2020, TECO pe- pact on the general body of ratepay- claim. Otherwise, a post enactment titioned for a temporary waiver of ers as line extensions for EV chargers transfer would absolve the State of Rule 25-6.064 5-year cost estimation would not cause a material impact on its obligation to defend any action requirement for the purpose foster- the amount of CIAC collected relative to TECO’s overall invested capital. restricting land use, no matter how ing electric vehicle (EV) fast charg- Although TECO has only installed extreme or unreasonable. Reversing ing stations. The rule in question one-line extension for EV chargers the trial court’s distinction, the Court is intended to quantify the costs for to date, it has nonetheless served held that the language in Palazzolo certain new construction to deter- over 50 EV chargers. The Commis- “makes it clear that notice of a preex- mine the appropriate contribution- sion found that TECO demonstrated isting regulation does not operate as in-aid-of-construction (CIAC) from that the purpose of the underlying an absolute bar to a takings claim.” customers requesting said facilities. Thus, Jamieson acquired full proper- statute will be achieved if the waiver Ultimately, the Florida Public Ser- is granted. ty rights when he acquired the prop- vice Commission granted the tempo- erty in 2002, including the right to rary waiver, subject to the condition Second, TECO alleges that strict challenge the wetlands designation. that TECO makes annual reporting application will create a substantial hardship to widespread development Second, the trial court dismissed requirements. and growth of EV. Given the pro- the remaining counts on the basis TECO’s petition relates to Rule 25- jected acceleration of EV, adopting a that possible opportunities to secure 6.064 F.A.C., stating that estimated 10-year estimation would lower the development rights rendered the is- charge revenues shall be estimated CIAC barrier for construction of EV sue unripe. However, the Court held not more than 5 years after the new chargers. The Commission found that that where the permissible uses of facilities are placed in service. TECO complying would create a substantial the property are known to a reason- states that the purpose of waiving hardship. They note their concern able degree, a takings claim is likely this would be to create a pilot pro- for the limited information available to have ripened. While Florida courts gram and encourage EV growth in but recognize the potential benefit in have required a final determination, Florida, citing that initial cost is the allowing TECO to explore this new a limited exception exists in cases main barrier. TECO states that rev- methodology to encourage EV. whether further attempts to obtain enues are very low when first in- Third, the Commission’s response approval would be futile. Here, the stalled, and that a 10-year revenue is conditioned on TECO filing annual permissible uses of property were estimation would encourage more reports during the 5-year rule/waiver clear to a reasonable degree, having development of EV charging stations. variance period, with the first report submitted multiple challenges over Moreover, TECO requests that the due on March 1, 2021. The Commis- the years. The settlement offer would waiver be limited to 5-years, giving sion notes that their main concern is only remove wetland designation enough time to determine whether the potential level of cross subsidies for three lots. Thus, it is reasonably the 10-year period has a beneficial if the waiver is extensively utilized. certain the Town will not permit de- impact of the EV market. However, the reporting requirements velopment of the remaining ninety- First, Rule 24-6.064 is implement- should limit cross subsidies to be three percent of the property. Accord- ed to prescribe just, fair, reasonable, relatively small in comparison with ingly, the summary judgement on all and compensatory rates. TECO TECO’s net income. Accordingly, TE- counts was reversed and remanded. states that the underlying statute CO’s petition for a temporary waiver In re: Petition for approval grants broad discretion in setting is granted, subject to the condition of waiver of CIAC Rule No. 25- utility rates. Moreover, TECO states that TECO make the annual report- 6.064, F.A.C. for new line exten- that the different estimation will ing requirements sions serving electric vehicle fast not result in undue or unreasonable charging stations, by Tampa preference to any person and will not

10 Meet the 20-21 ELULS Executive Council

Rachael Santana, Chair Susan Roeder Martin, Chair-Elect Josh Coldiron, Treasurer Lewis, Longman & Walker, P.A., West Palm Nason, Yeager, Gerson, Harris & Fumero, P.A., Gramling Environmental Law, P.A., Tampa Beach Boca Raton

Jon Harris Maurer, Immediate Past Chair Fred Aschauer Robert Volpe, Secretary Panza, Maurer & Maynard PA, Tallahassee Lewis, Longman & Walker, P.A., Tallahassee Hopping Green & Sams, PA Tallahassee

Neysa Borkert Stacy Bjordahl Jon Paul Brooker Charlotte County Attorney’s Office, Port Charlotte Garganese, Weiss, D’Agresta & Salzman, Orlando Ocean Conservancy, St. Petersburg

Lauren Brooks Jake Cremer Byron Flagg Baker Donelson, P.C., Tallahassee Stearns Weaver Miller Weissler Alhadeff & Byron D. Flagg, Esq., Gainesville Sitterson, P.A., Tampa

11 20-21 ELULS : from previous page

Felicia Kitzmiller Pamela Jo Hatley Jacki Lopez Hopping Green & Sams, PA, Tallahassee Pamela Jo Hatley, P.A., Tampa Center for Biological Diversity, St. Petersburg

Joan Matthews Malcolm Means Peter Morris Matthews Law PLLC, Orlando Ausley McMullen, Tallahassee Monroe County Attorney’s Office, Key West

Angela Morrison David Sacks Nikki Williams Earth & Water Law, PLLC, Tallahassee David B. Sacks, P.A., Jacksonville Watson Sloane PLLC, Orlando

Melissa VanSickle Cheri Wright, Program Administrator Board of Governors Liaison The Florida Bar, Tallahassee Nelson Mullins Broad and Cassel, Tallahassee

12 RIPARIAN RIGHTS: government or private entity from Florida regarding the right to a view from page 1 activity that prevents the owner from remains Hayes v. Bowman, 91 So. 2d reaching the water. Cf. Game & Fresh 795 (Fla. 1956). There, the Florida Water Fish Commission v. Lake Wa- Supreme Court recognized a problem attach only to a parcel abutting a ters, 407 So. 2d 189, 192 (Fla. 1981). without a neat answer: The shoreline waterbody that was “navigable” when Significantly, this right of ingress and is rarely straight. See Hayes, 91 So. Florida joined the Union in 1845. egress does not mean that a riparian 2d at at 801. Accordingly, the Court Therefore, a riparian owner living property must touch the water. See adopted a rule requiring that courts alongside a waterbody that either Stop the Beach Renourishment, Inc. v. delineate so called “riparian lines” on is (a) non-navigable, or (b) became Florida Department of Environmen- a case-by case basis; such riparian navigable after 1845, does not have tal Protection, 560 U.S. 702 732-33 lines must preserve riparian owners’ riparian rights (again, except for the (2010). As the U.S. Supreme Court views “as near as practicable” to the 13 right to reasonable use). astutely observed in Stop the Beach, water. the doctrine of avulsion (discussed An important caveat regarding Taken to its next logical step, with the “Right to Accretions” infra) the “navigability” analysis discussed Hayes stands for the principle that above: The submerged lands under- necessitates scenarios where a ri- an obstruction (to a view) must be lying the abutting “navigable” wa- parian parcel is separated from the more than a “mere annoyance;” it ters do not have to be owned by the water . . . such as by a hurricane or must be “substantial and material.” State—at least not in the Second from beach nourishment. See id. See Lee County v. Kiesel, 705 So. 2d District Court of Appeals. See 5F, The second part is trickier. A se- 1013, 1016 (Fla. 2d DCA 2008). An LLC v. Dressing, 142 So. 3d, 936, 947 ries of Florida Supreme Court cases obtrusive bridge has met this stan- (Fla. 2d DCA 2014). The paradox of (with conflicting DCA cases cited dard in Florida. See id. at 1016 (ri- privately owned, formerly sovereign, therein) illustrates how much Florida parian owner entitled to compensa- submerged lands is beyond the scope courts have struggled with defining tion where bridge obstructed 80% of this article.7 In addition, ripar- a riparian owner’s access rights over of view). Several other states have ian rights are severable to a limited navigable waters. See Thiesen, 8 recognized different obstructions. extent. See Belvedere Development So. at 491; Webb v. Giddens, 82 So. See, e.g., City of Ocean City v. Maf- Corp. v. Department of Transporta- 2d 743 (Fla. 1955); Game & Fresh fucci, 740 S.2d 630 (N.J. App. 1999) tion, Division of Administration, 476 Water Fish Commission, 40 So. 2d (dune obstruction); Pierpont Inn, Inc. So. 2d 649, 653 (Fla. 1986) (“[riparian at 189. The outcome of these cases v. State, 449 P. 2d 737, 745-46 (Cal. rights] may be separated from the is summed up Game & Fresh Water 1969) (freeway obstruction); DBL, upland by bilateral agreement to re- Fish Commission: “It is a recognized Inc. v. Carson, 585 S.E. 2d 87 (Ga. serve them in a deed of conveyance or general rule of law that a riparian App. 2003) (dock obstruction). The all or any interest in riparian rights owner’s interest in waterway naviga- doctrine of laches may bar a right-to- view claim. Eustis v. Firster, 113 So. may be transferred by voluntary act tion is the same as a member of the 2d 260 (Fla. 2d DCA 1959). Finally, of the upland owner”); see also Bran- public except where there is some spe- the right to a view does not equate non v. Boldt, 958 So. 2d 367, 373-74 cial injury to the riparian owner.” Id. to an unqualified right to trim (or al- (Fla. 2d DCA 2006) (easement on at 192 (citing F. Maloney, S. Plager, ter) mangroves; mangrove trimming plat may implicitly reserve ripar- & F. Baldwin, Jr., Water Law and Ad- (or alteration) must be consistent ian rights). However, a condemning ministration he lorida xperience , T F E with the State Mangrove Trimming government entity cannot sever ri- (1968)); see also Webb, 82 So. at 745 and Preservation Act, see F.S. §§ parian rights without compensating (“[W]e are concerned with a field of 403.9321-403.933314, and the regula- the upland owner or gaining his or law that is unusually dependent upon tions adopted by delegated local gov- her consent. Belvedere, 476 So. 2d the facts and circumstances of each ernments. See, e.g., Pinellas County at 654. This latter point is critical: case”). Therefore, like loss of access Code, Chapter 58, Article XVI. Riparian rights are private property to a road, a substantial diminution or rights that may not be taken without total denial of reasonable access over Right to Wharf Out just compensation.8 a navigable waterbody may be a tak- Riparian owners in Florida enjoy a 15 Right to Access ing. See Game & Fresh Water Fish right to wharf out to the water. Un- Commission, 40 So. 2d at 193; see also like the other riparian rights includ- Riparian owners in Florida enjoy a ed in this article, the riparian right to right to access the water.9 The right Fla. Att’y Gen. Op. No. 85-47 (June 7, 1985) (enforcement of ordinance that wharf out is a qualified one. Dresing, to access may be broken up into two 142 So. 2d at 942 (citing Williams v. parts: (1) the right of ingress and prohibits boat access within 300-feet of public beach may be taking of ri- Guthrie, 137 So. 682, 685 (Fla. 1931): egress over the riparian property to see also Fla. Att’y Gen. Op. No. 90- navigable waters; and (2) the reason- parian owners’ right to access). The majority of states, however, do not 37 (May 10, 1990). This essentially able right of access over navigable means that approval for the dock at waters for navigation. recognize a riparian right to access beyond the water’s edge.11 the federal, state, and local levels of The first part is relatively straight- government, as applicable, must be forward. A riparian owner has the Right to a View obtained. See Freed, 112 So. 841 at right to ingress and egress over his Riparian owners in Florida enjoy land to reach the water.10 There- a right to an unobstructed view of fore, a riparian owner may enjoin a the water.12 The paramount case in continued...

13 RIPARIAN RIGHTS: established riparian rights (and therefore commit a ju- from previous page dicial taking). See Stop the Beach, 560 U.S. at 731-32.21 In addition to nourished sand (and other avulsions), a riparian owner is not entitled to ownership of accretions 22 844-45 (“If such wharves, or piers, or docks are built with- that he or she causes. However, a riparian owner is out due authority, they may be removed as purprestures, entitled to ownership of accretions caused by another. or, if they are or become nuisances or are harmful to the Sand Key, 512 So. 2d at 934-35. Moreover, where a dedi- rights of the public, they may be removed or abated by cated roadway over a riparian parcel abuts the water, the due course of law.”); cf. Pinellas County Code, Chapter 58, riparian owner—not the government agency—is entitled Article XV. Water and Navigation Regulations (providing to ownership of the accretions. See Bonifay v. Dickinson, a comprehensive example of dock regulations at the local 459 So. 2d 1089 (Fla. 1st DCA 1984) (citing Burkart v. government level).16 Rejected dock permit applicants at City of Fort Lauderdale, 168 So. 2d 65 (Fla. 1964)). the local level may have a right to appeal to—or seek a Right to Reasonable Use variance from—an impartial quasi-judicial body. See, All property owners in Florida—not just “riparian” e.g., Pinellas County Code, §§ 58-536, 58-539. Rejected owners—enjoy the right to make reasonable use of the wa- dock permit applicants at the state level may request a ter on, under, or abutting their property.23 Before 1972, hearing before a State Administrative Law Judge. See the right to take and consume water in a reasonable mat- F.S. §§ 120.569, 120.57. ter was regulated under the common law. See Tequestra Significantly, the right to wharf out only concerns v. Jupiter Inlet Corp., 371 So. 2d 663 (Fla. 1979), cert. de- access by the owner; it does not include commercial or nied 444 U.S. 965 (1979). In 1972, the Florida Legislature other ancillary uses. See BB Inlet, 293 So. 3d 538 (citing adopted the State Water Resources Act, which prescribed Shore Village, 824 So. 2d at 211). Therefore, a riparian a permitting system that essentially replaced the common owner should not rely on riparian rights to operate a law reasonable use doctrine.24 See id.; Southwest Florida restaurant—or any other for-profit operation—on a dock. Water Management District v. Charlotte County, 774 So. See BB Inlet, 293 So. 3d 538 (citing Tewksbury v. City of 2d 993 (Fla. 2d DCA 2001). Note that a landowner does Deerfield Beach, 763 So. 2d 1071 (Fla. 4th DCA 1999)). not own the groundwater beneath his or her land until the Indeed, in Pinellas County, any sort of “developed use” owner legally diverts the water for his or her reasonable over “navigable” waters is prohibited. Pinellas County and beneficial use. Claussen v. Aetna Casualty & Surety Code § 128-3506. The same is true for roofs and vertical Co., 754 F. Supp. 1576 (S.D. Ga. 1990) (citing Tequestra, walls. Id. § 58-543(m). 371 So. 2d at 670). Therefore, where a property owner does not have a State Water Use Permit, government ap- Right to Accretions propriation of groundwater beneath the owner’s property Riparian owners in Florida enjoy the right to accre- does not amount to a taking unless there is damage to the tions.17 Accretion is the “gradual and imperceptible” ac- overlying land. Tequestra, 371 So. 2d at 672. cumulation of land along the shore. See Walton County, 18 In the surface water context, when a property owner 998 So. 2d at 1112 (citing Sand Key, 512 So. 2d at 936). unreasonably obstructs or diverts the natural flow of As the Florida Supreme Court explained in Sand Key, surface water to the detriment of his or her neighbor, he “[t]he test as to what is gradual and imperceptible . . . or she may be liable to the neighbor. See Westland, 371 is, that though the witnesses may see from time to time So. 2d at 962-63. This concept is inherently nebulous; that progress has been made, they could not perceive it 19 nevertheless, as the Florida Supreme Court explained in while the process was going on.” Contrast the doctrine Westland: “[A]n analysis centering on the reasonableness of accretion with the doctrine of avulsion, which is the of the defendant’s conduct, in view of all the circumstanc- “sudden and perceptible” loss or addition of land along es, is more likely to produce an equitable result than one the shore. See Walton County, 998 So. 2d at 1116 (citing based on arbitrary property concepts.” Id. at 963 (quoting Sand Key, 512 So. 2d at 936). If an avulsion occurs, the McGlashan v. Spade Rockledge Terrace Condominium property boundary between the State and riparian owner 20 Development Corp., 402 N.E. 2d 1196, 1199-1120 (Ohio does not change. 1980)); see also Coachwood Colony MHP, LLC v. Kironi, The doctrines of accretion and avulsion pose a quan- LLC, 263 So. 3d 263 (Fla. 5th DCA 2019) (remanding a dary in the context of beach nourishment. The U.S. drainage dispute between neighbors for application of Supreme Court attempted to solve this quandary in the Westland test). Where different riparian owners own Stop the Beach. See Stop the Beach, 560 U.S. 702. In a different submerged lands within the same non-navigable unanimous decision, the U.S. Supreme Court affirmed natural lake, all owners enjoy reasonable access to and the Florida Supreme Court’s holding in Walton County use of the entire lake.25 upholding the facial constitutionality of the State Beach Conclusion and Shore Preservation Act, which prescribes the Erosion Control Line (ECL) as the new State-private property line This article has provided a basic roadmap for un- post-beach nourishment. See id. at 703; see also Walton derstanding riparian rights. When assessing whether County, 998 So. 2d at 1120-1121. Because beach nourish- a property owner has riparian rights, the first question ment is an avulsion, and because fixing the ECL at the to ask is whether the owner’s property abuts “navigable” pre-nourishment mean high water line is consistent with waters. If the property does not abut “navigable” waters, the doctrine of avulsion (where the State-private property line does not change), the Florida Supreme Court did not contravene the plaintiff beachfront property owners’ continued...

14 RIPARIAN RIGHTS: from previous page the only riparian right that may attach to the property is the right to reasonably use the water. If the property does abut navigable waters, attorneys should be aware that the right to wharf out is qualified by government regulation and that the right to accretions may be lost if an avulsion occurs. Moreover, the right to an unobstructed Sponsored by the view may only preserve a narrow line of sight. Notwith- Young Lawyers Division of The Florida Bar standing these limitations, a riparian owner enjoys an unequivocal right to access navigable waters from his or her property; however, absent special injury, this right does not guarantee passage over said waters. Lawyers Advising Lawyers (LAL) is a free service offered to all members of The Florida Bar who may need advice Endnotes in a specific area of law, procedure, or other legal issue. *Brendan Mackesey is an Assistant County Attorney for the Pinellas Currently, the program consists of more than 300 attorney County Attorney’s Office, where he practices coastal and environmental advisors who volunteer to assist other members of The law for the Office’s Land Use and Infrastructure Section. He is Florida Bar Board Certified in City, County, and Local Government Law. Florida Bar in this program. Advice is offered in more than 50 areas of law and procedure. Each LAL attorney advisor 1 See, e.g., Coastal Petroleum, Inc. v. American Cyanamid, 492 So. 2d 339, 342-43 (Fla. 1986); Brickell v. Trammel, 82 So. 221, 226 (Fla. 1919); Broward is required to have a minimum of five years of experience v. Mabry, 50 So. 826, 830 (Fla. 1909). in his or her respective area of advice. 2 See, e.g., Shively, 152 U.S. at 17; Walton County v. Stop the Beach Renour- ishment, Inc., 998 So. 2d 1102, 1111 (2008) (citing Ferry Pass Inspectors’ & Shippers’ Association v. White’s River Inspectors’ & Shippers’ Association, 48 So. 643, 645 (Fla. 1909)). WHY LAWYERS ADVISING LAWYERS 3 The right to reasonable use is much broader than the other four riparian rights. This is because the “navigability” of the adjacent waterbody appears to be irrelevant. See cases cited at note xxv, infra. If you confront an issue in an area of law or procedure Moreover, non-riparian owners may be entitled to a right to reason- unfamiliar to you, the LAL program provides quick access ably use groundwater. See § F.S. 373.223 (use must be reasonable andbeneficial to obtain State Water Use Permit); accord Koch v. Wick, to an attorney advisor who likely has the experience to 87 So. 2d 47, 48 (Fla. 1956) (right to draw percolating water bounded help. A brief consultation with a LAL attorney advisor by reasonableness); Cason v. Florida Power Co., 76 So. 535, 536 (1917) should assist you in deciding the best approach for (ground water use of neighbors must be reasonable). resolving the legal issue you are confronting. Please 4 See note iii, supra. note that the program is designed to supplement rather 5 The property boundary between riparian property is typically the than act as a substitute for the exercise of independent mean high water line, or the ordinary high water mark. State v. Florida judgment by the attorney seeking assistance. Natural Properties, Inc., 338 So. 2d 213 (Fla. 1976); see also Thiesen v. Gulf, Florida and Alabama Railway, 8 So. 491 (Fla. 1919). However, when a beach nourishment project occurs, a new property boundary is set—the Erosion Control Line (ECL). F.S. § 161.191; see also Walton County, 998 So. 2d at 1106. HOW TO BECOME AN ATTORNEY ADVISOR 6 See, e.g., id.; Odom v. Deltona Corp, 341 So. 2d 977, 981 (Fla. 1976); Bucki v. Cone, 6 So. 160, 161 (Fla. 1889). Note that a presumption of navigability attaches to the waterbody if it is shown as meandering Becoming an advisor is quick and easy. To enroll, visit on an official government survey; conversely, a presumption of non- LawyersAdvisingLawyers.com and click the “Become an navigability attaches to the waterbody if it is shown as non-meandering. Advisor” button. You will be required to log into The Florida Odom, 341 So. 2d at 988-89; Martin, 112 So. at 284. Bar’s website using your Florida Bar Identification Number 7 See generally Jesse Reiblich, Private Property Rights Versus Florida’s and password. Next, check the box next to the areas in Public Trust Doctrine: Do any Uses Survive a Transfer of Sovereign Submerged which you are willing to be contacted to provide advice. Lands from the Public to Private Domain, Vol. XXXV No. 1 Fla. Bar ELULS To finalize, please review the “Requirements of Advisor, Reporter, Sept. 2013, at 3 (discussing the public’s right to use formerly sovereign submerged lands now privately owned). Advisor Acknowledgement” and certify the information is true and correct by clicking on the “I Agree” button. You 8 See, e.g., Walton County, 998 So. 2d at 1111; Broward, 50 So. at 830; Thiesen, 8 So. 491; BB Inlet Property, LLC v. 920 N. Stanley Partners, 293 So. will be contacted by The Florida Bar when your contact 3d 538 (Fla. 4th DCA 2020). information has been shared with an inquiring attorney. 9 See, e.g., Walton County, 998 So. 2d at 1119 (citing Sand Key, 512 So. 2d at 936); Brickell, 82 So. at 227; Broward, 50 So. at 830. 10 See Walton County, 998 So. 2d at 1119; Ferry Pass, 48 So. 643 at 645; QUALIFICATIONS FOR AN ATTORNEY ADVISOR Merrill Stevens Co. v. Durkee, 57 So. 428, 431 (Fla. 1911). 11 See e.g., Miller v. Mayor of New York, 109 U.S. 385 (1883); Gilman v. To qualify, a LAL attorney advisor must have a minimum City of Philadelphia, 70 U.S. 713 (1865); Becker v. Litty, 556 A.2d 1101 (Md. 1989); Colberg, Inc. v. State, 432 P.2d 3 (Cal. 1967). of five years of experience in his or her respective area(s) of advice and must be a member of The Florida Bar in good standing. continued...

15 RIPARIAN RIGHTS: 18 Together with the right to accretions, riparian owners enjoy the from previous page (much less well-known) right to relictions. See Sand Key, 512 So. 2d at 936. Reliction is the increase in land from the “gradual and imperceptible” withdrawal of water. Id. Riparian owners also risk losing land due to erosion, which is the “gradual and imperceptible” deterioration 12 See, e.g., HaggertySmith, LLC v. Gerlander, 236 So. 3d 462 (Fla. 5th of land. Walton County, 998 So. 2d at 1112. DCA 2017) (citing Walton County, 998 So. 2d at 1111); Brannon, 958 So. 19 Sand Key, 512 So. 2d at 936) (citing Philadelphia Co. v. Stimson, 223 2d at 373 (citing Thiesen, 78 So. at 507). U.S. 605 (1912) (quoting St. Clair County v. Lovingston, 90 U.S. 46 (1874))). 13 Id. In drawing riparian lines, courts must consider the lay of the 20 See Walton County, 998 So. 2d at 1114 (citing Bryant v. Peppe, 236 shoreline, the direction of the waterbody, and the needs of adjoining So. 2d 836, 838 (Fla. 1970); cf. Martin, 112 So. 274 at 288 (Brown, J., owners. conc.) (doctrine of relictions does not apply where land is drained and 14 The riparian right to a view is recognized in F.S. § 403.9323(3) as reclaimed by government agency). follows: “It is the intent of the Legislature to provide waterfront prop- 21 Although the U.S. Supreme Court declined to address this point erty owners their riparian right of view, and other rights of riparian in Stop the Beach, see id. at n.5, the Florida Supreme Court reaffirmed property ownership as recognized by [F.S. §] 253.141 and any other that accretions are a future, contingent interest not guaranteed to a provision of law, by allowing mangrove trimming in riparian mangrove riparian owner in Walton County. See Walton County, 998 So. 2d at 1118; fringes without prior government approval when the trimming activi- see also Accardi, 201 So. 3d at 746-47. Therefore, fixing an ECL does not ties will not result in the removal, defoliation, or destruction of the deprive a riparian owner of any established (riparian) property right. mangroves.” See Walton County, 998 So. 2d at 1118. 15 See, e.g. Freed v. Miami Beach Pier, Corp., 112 So. 841, 844-45 (Fla. 22 Board of Trustees v Medeira Beach Nominee, Inc., 272 So. 2d 209, 212 1927); Modrall v. Sawyer, 297 So. 2d 562, 563 (Fla. 1974) (Ervin, J., dis- (Fla. 2d DCA 1973) (citing Brundage v. Knox, 117 N.E. 123 (Ill. 1917); senting); Shore Village Property Owners’ Association v. State Department of State v. Sause, 342 P.2d 803 (Or. 1959)). Environmental Protection, 824 So. 2d 208, 211 (Fla. 4th DCA 2002) (citing 23 See, e.g., Westland Skiing Center v. Gus Machado Buick, Inc., 542 So. 2d Tewksbury v. City of Deerfield Beach, 763 So. 2d 1071, 1071 (Fla. 4th DCA 959 (Fla. 1989); Koch, 87 So. 2d 47; Cason, 76 So. 535; see also Ferry Pass, 1999)). 48 So. at 644. 16 At the state level, an Environmental Resource Permit (ERP)—or 24 The State Water Resources Act is codified at F.S. ch. 373. To obtain exemption—is required for a dock. See F.S. §§ 373, 403; F.A.C. § 62-330; a Water Use Permit under the Act, an applicant must establish that State of Florida Department of Environmental Protection et. al., ERP his or her proposed use of water: (a) is reasonable-beneficial as defined Applicant’s Handbook, Vol. 1 (June 1, 2018). If the dock is constructed by F.S. § 373.019; (b) will not interfere with any existing legal use of over sovereign submerged lands, proprietary authorization from the water; and (c) is consistent with the public interest. See F.S. § 373.223. State is also required. See F.S. §§ 253, 258; F.A.C. §§ 18-20, 18-21. 25 See Duval v. Thomas, 113 So. 2d 791 (Fla. 1959); Conrad v. Whitney, 17 See, e.g., Walton County, 998 So. 2d at 1111; Brickell, 82 So. at 227 141 So. 2d 976 (Fla. 2d DCA 1976); Publix Super Markets v. Pearson, 315 (citing Broward, 50 So. at 830); Accardi v. Regions Bank, 201 So. 3d 743, So. 2d 98 (Fla. 2d DCA 1975); Florio v. State, 119 So. 2d 305 (Fla. 2d DCA 746 (Fla. 4th DCA 2016). 1960).

NEW RESILIENCY COMMITTEE by Susan Roeder Martin, Chair-Elect

South Florida has been called “ground zero” for sea level rise. Together with water quality, these are two of the most important resiliency issues affecting our state. But, resiliency issues in Florida are much broader than these two issues. Resiliency is a broad topic which also includes climate change, water quantity, air quality, electric vehicles, and many other topics. Because of the importance of these issues, a new Committee has been created by the Florida Bar’s Environmental and Land Use Law Section to address resiliency. The new Committee will host a series of webinars on resiliency issues beginning this winter. We hope you will join us in these webinars to learn more about the variety of resiliency issues facing our state.

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