An amendment to Florida’s Administrative Procedure Act, HB 993 (“the Bill”) passed last week by the Florida Legislature significantly changes the ability of affected property owners, and especially waterfront property owners, to challenge the correctness of government agency decisions which substantially affect their property. Hailed as a boon to big business, the Bill has major adverse consequences for individual home owners seeking to protect their investment. The Bill severely restricts the ability of private third parties to contest the issuance of, among other things, State environmental permits for projects that may impact the quality and use of waterfront properties.
By way of background, it should be understood that most activities that have the potential of adversely affecting water quality, navigation, wildlife, beaches, and wetlands, require one or more permits or approvals from State agencies. The decision to issue or deny such permits or approvals is required to be based upon criteria established by State statute and administrative regulations.
For example, before the State may issue a permit for the construction of a boat dock, the applicant must provide through the application process “reasonable assurances” that the proposed project will not adversely affect seagrass, manatees, water quality, or navigation.
Typically, for example, permit applicants for boat docks provide very little information regarding potential impacts to navigation, particularly from a neighbor’s perspective. Furthermore, State agencies typically accept the information provided by the applicant at “face value”, and do not conduct their own investigation of a project’s potential navigational impacts.
Therefore, for example, if an applicant fails to present information regarding the existence of a navigation channel in close proximity to the proposed dock, and such proximity would adversely affect a neighbor’s ability to get his/her boat in and out of their existing or future dock, it is likely that the State would issue the requested dock permit.
Since 1975, the Florida Administrative Procedure Act has allowed “substantially affected parties” to request a formal administrative hearing to contest permitting decisions made by State agencies. At least since 1981, following the landmark decision in Florida Department of Transportation v. J.W.C., 396 So.2d 778 (Fla. 1 st DCA 1981), the Florida Administrative Procedure Act established a “level playing field” between the permit applicant, the State agency, and the affected third-party.
Upon the filing of a challenge requesting a formal administrative hearing, typically an independent administrative law judge would be assigned to conduct a trial-like proceeding wherein evidence and testimony is presented by all parties to determine whether or not the permit met the requirements of State laws and regulations. Additionally, the filing of a challenge converted the permit issuance from “final agency action” to “preliminary agency action”.
It has long been the understanding following the FDOT v. J.W.C that the administrative hearing to contest the issuance of a State permit was a “de novo” proceeding. In other words, “no presumption of correctness attaches to the Department’s preliminary approval”. The administrative hearing was viewed as a step in the “formulation”, not “appeal” of agency action.
At the hearing, the applicant was required to present witnesses and evidence to demonstrate that the proposed project met the applicable standards. The challenging third-party had the opportunity to cross-examine both the applicant’s and State’s witnesses to challenge the sufficiency and accuracy of the information presented in support of the application.
This right of third-parties to directly question the applicant’s expert witnesses is crucial to the administrative hearing process. I have won a number of major environmental permitting challenges on behalf of affected third-parties just on the strength of my cross-examination of the applicant’s witnesses.
Since most permit applicants do not think that their application will be challenged, applications frequently are not submitted with the level of detail that would be sufficient to withstand close scrutiny. The reason for this is that many State permit reviewers do not hold the applicant’s to the level of detail that is required by the statutes and regulations. Thus, shortcuts are taken by both the applicant’s consultants and State employees. I have also found that there are a number of environmental consultants who will falsify or report half-truths in the data presented in support of an application.
When, during the course of an administrative hearing, the work effort of applicant’s consultants and State employees is placed under the “spotlight”, frequently it will be found that the applicant did not provide the requisite “reasonable assurances” that the proposed project complies with the applicable requirements of law.
In the boat dock example given above, if the third-party challenger showed under cross-examination of the applicant’s witnesses that no investigation of the potential impact of the proposed dock upon navigation was conducted, the third-party challenger would be entitled to a Final Order denying the requested dock permit.
The Bill passed last week has clearly “tilted the playing field” in favor of permit applicants. Under the terms of the Bill, the proceeding before the administrative law judge is no longer a true “de novo” hearing. The agency’s action comes to the hearing with a presumption of correctness.
The applicant is no longer required to produce expert witnesses to support the correctness or accuracy of their work product contained in the application. The Bill states that the applicant may merely submit the application and supporting documents to show “prima facie” entitlement to the requested permit. Accordingly, the third-party objector is denied the opportunity for cross-examination of the authors of the information submitted to the State.
Under the Bill, the responsibility falls squarely upon the shoulders of the affected third-party to hire experts to conduct the studies either not performed by the applicant, or performed in an incomplete or inaccurate manner. This is a very costly and unfair burden.
The State’s environmental agencies were created by statute to protect the environment and private property. These agencies are funded by taxes paid by private property owners. Private property owners should not be required to pay even more as a consequence of the failure of State agencies to do the work they have been tasked to do.
If State agencies do not have the resources to thoroughly review the information provided in support of an application, or to conduct independent studies to verify the completeness or accuracy of applications, reason dictates that it should be the responsibility of the applicant to justify the facts or conclusions specified in its application.
The Bill, however, expressly benefits the applicant to the clear detriment of third-party property owners, by allowing the applicant to demonstrate prima facie entitlement to the requested permit or authorization simply by submitting into evidence the application, materials submitted in support of the application, the State agency’s report, and the agency’s written intent to issue the requested authorization.
To make matters worse, this major change in long-standing protections for private property owners afforded by the Administrative Procedure Act was made as an eleventh-hour “tack on” amendment to another bill regarding administrative agency “Rulemaking”. HB 993 has nothing to do with agency rulemaking. Additionally, the Title to HB 993 which is required to identify the scope of the proposed legislation, refers to the change as “providing that a non-applicant who petitions to challenge an agency’s issuance of a license, permit, or conceptual approval in certain circumstances has the burden of ultimate persuasion and the burden of going forward with evidence”.
There was nothing in the Title to HB 993 to suggest that the proposed legislation was going to change the protection of a “level playing field” that private property owners had enjoyed for at least 30 years. In fact, the language cited in the Title to HB 993 merely recited the standard that has been continuously applied since the FDOT v. J.W.C. case. One reading the Title to HB 993 could reasonably assume that the purpose of the Bill was simply to codify a policy that has been in place for a very long time, not to radically change the policy.
The Florida Legislature’s enactment of HB 993 presents further evidence of the State’s lack of concern for private property rights and the dire need for waterfront property owners to organize a state-wide association to have an effective voice in Tallahassee.
The question regarding whether an owner of property bordering on a navigable water body has a right to construct a dock upon adjacent privately owned submerged lands without the consent of the owner of such submerged lands will soon be answered by the District Court of Appeal for the Second District of Florida. In the case before the Court, 5F,LLC was the owner of the submerged lands adjacent to the uplands owned by Robert and Sarah Dresing and the Michael W. O’Shaughnessy Trust in Lee County, Florida. My client, 5F, LLC objected to the upland owners’ construction of a joint “fishing pier/observation deck” upon 5F’s privately owned submerged lands, lawfully acquired from the State of Florida, without 5F’s consent.
The upland owners argued that they had riparian rights, including the right to construct a dock, and they could exercise such rights even without the consent of the owner of the submerged lands. The following is an excerpt of my Appellate Brief showing that in the absence of any right granted by the Florida Legislature, riparian rights do not include the right to construct a dock upon adjacent submerged lands:
The analysis of a “riparian right” to “wharf out” requires an understanding of these terms of art and how they developed over time. Currently the term “riparian rights” is defined by Florida Statute Section 253.141(1) which, in pertinent part provides, “Riparian rights are those incident to land bordering upon navigable waters. They are rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law.” The analysis of a “riparian right” to “wharf out” requires an understanding of these terms of art and how they developed over time. Currently the term “riparian rights” is defined by Florida Statute Section 253.141(1) which, in pertinent part provides, “Riparian rights are those incident to land bordering upon navigable waters. They are rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law.” (Emphasis Added).
The phrase “wharf out” is an anachronism, particularly when used to describe a so-called right to construct a recreational dock. Historically, a wharf referred to a structure necessary for commerce. See, e.g., Geiger v. Filor, 8 Fla. 325, 1859 WL 2324 (Fla. 1859). Nevertheless, today the phrase “wharf out” appears to be treated as synonymous with constructing a dock. [The phrase “wharf out” as currently interpreted, does not include a “right” to construct a dock to reach navigable water depths. All applicable local, state, and federal regulations impose limitations upon the length of docks where necessary to protect environmental or navigational interests. For example, Chapter 26, Division 2, Section 26-71(b), Lee County Land Development Regulations provides that the maximum permissible length of a single-family residential dock is 300 feet.]
“Riparian rights” can only exist under Florida’s Constitution, Florida Statutes, or the common law. Article X, Section 11 of the Florida Constitution provides:
The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale of such lands may be authorized by law, but only when in the public interest. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest. (Emphasis Added).
The Florida Constitution does not expressly provide for any rights of riparian owners over the submerged lands adjacent to their property. The phrase may be authorized by law” indicates the private use of State-owned submerged lands is within the Florida Legislature’s discretion. It is not a “right.” Certain riparian rights are provided by statute in Florida, but Section 253.141(1) does not expressly include any right to construct a dock or to “wharf out.” Since neither the Florida Constitution nor Florida Statutes expressly provide for a right to wharf out, the only possible source would be the common law. Florida Statute Section 20.1 declares England’s common law as the law of this State provided it is consistent with state and federal law. Accordingly, Florida riparian rights are originally based on England’s common law. Under English common law, all lands below the high water mark of tidal waters were owned by the King of England. All construction on the King’s lands without the King’s consent was prohibited. Boston Waterfront Development Corporation v. Commonwealth, 393 N.E.2d 356 (Mass. 1979). See also, Shively v. Bowlby, 14 S.Ct. 548 (1894) (noting that every building or wharf constructed below the high water mark without the King’s consent could “either be demolished, or be seized and rented for his benefit”).
Our English ancestors who immigrated to America made their settlements on harbors or arms of the sea. For the purpose of commerce, the construction of wharves erected below the high water mark, i.e., upon the King’s land, was a necessity. See, Woodbury Storer v. Nathaniel Freeman, 6 Mass. 435 (Mass. 1810); and Dutton v. Strong, 66 U.S. 23 (1861). Therefore, to facilitate the construction of such wharves below the high water mark, early colonial governments enacted ordinances modifying the common law of England. One such ordinance was the “Colonial Ordinance of 1641″ adopted by the Massachusetts Bay Colony. See Commonwealth v. Cyrus Alger, 61 Mass. 53 (Mass. 1851). The Colonial Ordinance of 1641 modified the common law of England by extending the private upland ownership of lands adjoining a tidal water body from the high water mark to the low water mark, and extending seaward a maximum of one hundred rods (1,650 feet), thus facilitating the erection of wharves. Id; Woodbury, supra.
Property rights granted by the Colonial Ordinance of 1641 were considered “qualified” rights since those who acquired such property were restricted from any use impairing the public’s right of passage over the water. Commonwealth v. Charlestown, 1 Pick. 180 (Mass. 1822). The Charlestown Court further noted that while the colonial government could transfer title to submerged lands to upland owners to build wharves up to a certain maximum size, such conveyance was conditioned to the extent that such construction could not interfere with the free passage of boats over the public’s navigable waters.
These early decisions demonstrate that even England’s common law did not recognize any right of a riparian owner to wharf out. Had such right existed under England’s common law, the adoption of ordinances such as the Colonial Ordinance of 1641 would have been unnecessary.
Shortly after Florida became a State, the Florida Legislature enacted “The Riparian Act of 1856”, Chapter 791, Laws of Florida (1856). The Act defined “riparian owner” as one whose lots extended to the low water mark, and granted to such owners the right to build wharves to facilitate the landing of goods, and to fill in land to build warehouses and other buildings, as long as such activities did not obstruct the channel. Thiesen v. Gulf, F.& A. Ry. Co., 78 So. 491, 501 (Fla. 1917). The Riparian Act of 1856 was replaced by “The Butler Act”, Chapter 8537, Laws of Florida (1921), which provided for similar rights. The rights granted to riparian owners by these acts were repealed in 1951 by the adoption of Chapter 26776, Laws of Florida (1951), which required upland riparian owners to purchase from the Trustees any lands sought to be filled prior to the erection of permanent improvements upon State-owned submerged lands, including private docks. The Florida Legislature’s enactment of these acts demonstrates that no common law right to wharf out existed under Florida law, for if it did, the Riparian Act and Butler Act would have been meaningless. Florida’s appellate opinions confirm this conclusion. In State v. Black River Phosphate Co., 13 So. 640 (Fla. 1893), the Florida Supreme Court discussed the purpose of The Riparian Act of 1856, recognizing that the State’s ownership of submerged lands was “a bar to the riparian owner building such wharves.” See also, State ex rel. Ellis v. Gerbing, 47 So. 353 (Fla. 1908) (confirming the State’s power to grant limited privileges to individuals to erect wharves to reach navigable waters but not unreasonably impair the public’s rights in the use of the waters or lands thereunder).
Ferry Pass Inspectors’ & Shipping Ass’n. v. White’s River Inspectors’ & Shipping Ass’n., 48 So. 643 (Fla. 1909), identified Florida’s common law riparian rights. Ferry Pass involved a dispute between two logging companies over the use of a navigable river, one of whom owned the uplands along the river. The shipping company that did not own the uplands nonetheless tied logs along the shore of the other shipping company’s uplands over their objection. The upland owner filed suit seeking a declaration that the other shipping company’s use deprived the upland owner of access to the water. The Florida Supreme Court found that neither shipping company had exclusive rights to use the navigable waters, as the upland owner’s rights of use were shared with both the other shipping company, and the public. The Ferry Pass Court did, however, engage in a discussion of what an upland owner’s riparian rights included. An examination of that language demonstrates constructing wharves was a “privilege,” as distinguished from a right. When this language is analyzed in comparison to the other cases addressing the issue, it becomes abundantly clear that any such “privilege” was always subject to the consent of the submerged land owner. The Court stated,
Among the common-law rights of those who own land bordering on navigable waters apart from rights of alluvion and dereliction, are the right of access to the water from the land for navigation and other purposes expressed or implied by law, the right to a reasonable use of the water for domestic purposes, the right to the flow of the water without serious interruption by upper or lower riparian owners or others, the right to have the water kept free from pollution, the right to protect the abutting property from trespass and from injury by the improper use of the water for navigation or other purposes, the right to prevent obstruction to navigation or an unlawful use of the water or of the shore or bed that specially injures the riparian owner in the use of his property, the right to use the water in common with the public for navigation, fishing, and other purposes in which the public has an interest.
With respect to a riparian owner’s ability to construct wharves, in contrast to the litany of specifically listed riparian rights, the Court noted:
Subject to the superior rights of the public as to navigation and commerce, and to the concurrent rights of the public as to fishing and bathing and the like, a riparian owner may erect upon the bed and shores adjacent to his riparian holdings bath houses, wharves, or other structures to facilitate his business or pleasure; but these privileges are subject to the rights of the public to be enforced by proper public authority or by individuals who are specially and unlawfully injured.
Accordingly, a riparian owner only had a “privilege” to construct a wharf upon the submerged lands adjacent to its property which could be granted or denied by the State, and was also subject to the State’s regulation. It was not a common law “right.”
The first Florida decision to squarely address whether common law riparian rights included a right to construct docks upon adjacent submerged lands was Thiesen v. Gulf, F.& A. Ry. Co., 78 So. 491 (Fla. 1917). In that case, Thiesen, a landowner claiming to be a riparian owner, brought suit against a railroad company for damages to his “rights” as a result of the construction of railroad tracks, including fill upon submerged lands opposite the shoreline of Thiesen’s property. Thiesen claimed the construction directly interfered with his rights of access, ingress and egress, and his right to construct wharves from his upland property to the channel of Pensacola Bay.
Initially, Thiesen claimed his right to construct wharves to the channel of the bay was based upon The Riparian Act of 1856. The Florida Supreme Court, however, determined the Act did not apply because Thiesen only owned the land to the high water mark, and did not own the land to the low water mark, a precondition to being a “riparian owner” under the Act. Thiesen then petitioned the Court for a rehearing claiming that even if he did not have any rights under the Act, he had common law rights, including the common law “right” to wharf out from his property.
The Court granted Thiesen a rehearing to consider his claim of a common law right to wharf out. Thus, the Florida Supreme Court on rehearing faced the precise question as to whether there was a common law riparian right to wharf out. Thiesen v. Gulf, F.& A. Ry. Co., 78 So. 491, 500 (Fla. 1917), rehearing 1918. The Court noted that a riparian landowner only has the common law “right of ingress and egress to and from the lot over the waters of the bay”, and the right “of an unobstructed view over the waters, and in common with the public the right of navigating, bathing, and fishing.”
Thiesen claimed an absolute right to wharf out and that the law was “full of cases showing the common-law rights and how they have been exercised both in England and this country.” The Court pointed out, however, “that counsel deemed it unnecessary to cite a single case or text-book supporting the plaintiff’s declaration….We have made a diligent search of the books for such a doctrine, but have been unable to find a single authority in support of it.” Thiesen claimed an absolute right to wharf out and that the law was “full of cases showing the common-law rights and how they have been exercised both in England and this country.” The Court pointed out, however, “that counsel deemed it unnecessary to cite a single case or text-book supporting the plaintiff’s declaration….We have made a diligent search of the books for such a doctrine, but have been unable to find a single authority in support of it.” Thiesen claimed an absolute right to wharf out and that the law was “full of cases showing the common-law rights and how they have been exercised both in England and this country.” The Court pointed out, however, “that counsel deemed it unnecessary to cite a single case or text-book supporting the plaintiff’s declaration….We have made a diligent search of the books for such a doctrine, but have been unable to find a single authority in support of it.” (Emphasis Added).
The Court expressly noted:
It is perfectly clear that the Legislature of 1856 did not consider the doctrine as announced by plaintiff’s counsel to be so well settled….If the owners of lots which extended only to the high-water mark had the right at common law to construct wharves, docks, and piers out into the bay to the channel, to ‘wharf out’, as the saying is, the act of 1856 was superfluous.
With respect to a “right to wharf out”, the Florida Supreme Court in Thiesen unequivocally announced, “The right did not exist at common law”. The Court did, however, quote the language from its earlier opinion in Ferry Pass Inspectors’ & Shipping Ass’n. v. White’s River Inspectors’ & Shipping Ass’n., 48 So. 643 (Fla. 1909), reflected above, and also confirmed that riparian owners did not have exclusive rights in land below the high water mark other than access. Thiesen at 503 (quoting Merrill- Stevens Co. v. Durkee, 57 So. 428 (Fla. 1911)). Accordingly, the Thiesen Court addressed the exact question presented as to whether an upland owner had a common law right to wharf out, and confirmed such a right did not exist. See also, Brickell v. Trammell, 82 So. 221 (Fla. 1919) (confirming the State’s right to grant easements in submerged lands to wharf out to navigable waters, thereby reiterating its determination that there was no common law right to wharf out).
The Thiesen Court noted the distinction between a riparian “right” and a “privilege” to construct docks on submerged lands beyond the upland boundary of privately owned lands. The Court noted that “the privilege of constructing wharves or piers to navigable waters…cannot be considered as a right appurtentant to the upland. The right to build wharves into the streams or waters of the bay or harbor…was granted by the act of 1856.” (Emphasis Added). Thiesen, at 503. In Krieter v. Chiles, 595 So.2d 111 (Fla. 3rd DCA 1992), the Third District Court of Appeal upheld the right of the State to preclude the construction of private docks on State-owned submerged lands. The Court found a riparian owner did not have a common law right to wharf out. The Florida Supreme Court in Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102, 1111 (Fla. 2008), identified riparian rights as including only access, use, view and the right to accretion and reliction. The Court’s list did not include the right to wharf out. See also, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S.Ct. 2592 (2010)(identifying the same rights as the Florida Supreme Court in Walton).
In light of the overwhelming authority set forth herein, there is no common law right to wharf out; only at best a privilege, always subject to the consent of the submerged land owner. Accordingly, an upland owner does not have a constitutional right, statutory right, or common law right to wharf out, only a privilege subject to consent of the submerged land owner. Thiesen, supra.
This Court, in Barasch v. Odio, 561 So.2d 1256 (Fla. 2nd DCA 1990), found an upland owner’s use of another’s privately held submerged lands was improper. In that case, Odio owned a waterfront lot and adjacent submerged land, which was subject to an easement for a common dock benefitting both Odio and Odio’s neighbor, Barasch. In order to facilitate the use of the dock, Barasch installed davits and motors on the dock, but also sunk a tie pole into Odio’s submerged land, 26 feet away from the dock allowed by the easement. This Court ruled that the placement of the tie pole in the submerged land, away from the easement, was “a substantial encroachment upon the Odios’ rights, for which the Baraschs have offered no legal justification.” Id at 1259. The Court allowed the use of the davits and motors on the dock as incidental to use of the easement, but ordered removal of the tie pole.
If the Baraschs were required to remove a tie pole from Odio’s submerged land when they had an easement over those lands for a dock because it was outside the easement area, certainly Appellees must be required to remove their Pier since they have no right to construct anything on the submerged land, whether by easement or otherwise.
The above authorities demonstrate Appellees have no riparian right to wharf out or build the Pier on 5F’s submerged lands without 5F’s consent. Appellees have only riparian rights of access, reasonable use, view and rights of accretion and reliction. They cannot boot strap their limited riparian rights to include a right to wharf out or construct a Pier over 5F’s submerged lands without 5F’s consent.
The results of this case will establish new precedent in the area of waterfront property law. I will keep you posted of further developments.
On Thursday, July 10, 2014 the U.S. Fish and Wildlife Service adopted new regulations designating portions of Florida’s sandy beaches as “Critical Habitat” for the Loggerhead Sea Turtle. Local beaches affected by this designation include Longboat Key, Siesta Key, Casey Key, Venice Beaches, Manasota Key, Knight Island, Don Pedro Island, Little Gasparilla Island, and Gasparilla Island. Beaches of Anna Maria Island and Lido Key were not included.
The direct effect of this designation is that any coastal development requiring federal funding or federal permits, will be reviewed by the U.S. Fish and Wildlife Service to determine whether or not the proposed project is likely to jeopardize the continued existence of the Loggerhead Sea Turtle, or destroy or adversely modify the designated critical habitat. The construction and remodeling of existing residential structures does not require federal permits. Therefore, this recent action should not have any direct effect on the local housing market. However, federal permits typically are required for beachfront seawalls and beach renourishment.
As sea levels continue to rise, this is a matter that will need to be readdressed sooner than later.