Court Rules Restoration Project a Taking
Infringed on Riparian Rights
Beaches, Inc. v. Fla. Dept. of Envtl. Protection,
2006 WL 1112700 (Fla. App. April 28, 2006)
in Florida challenged a state administrative agencys decision
to grant a permit for a beach restoration project on the grounds that
it effected an unconstitutional taking of their property without compensation.
The District Court of Appeal of Florida, First District, ruled in favor
of the property owners and reversed the agencys decision.
Hurricane Opal lashed the northern Gulf Coast in 1995, leaving extensive
erosion in its wake. In 2003, after careful study, the City of Destin
and Walton County applied to the Florida Department of Environmental
Protection (DEP) for a Joint Coastal Permit and Authorization to Use
Sovereign Submerged Lands so that they could begin a project to restore
their fabled white sand beaches. The permit would allow Destin and Walton
County to dredge and transport sand from a borrow area in neighboring
Okaloosa County to rebuild the eroded shorelines.
In 2004 DEP issued a Notice of Intent to issue the permit. Two groups
of property owners, Save Our Beaches (SOB) and Stop the Beach Renourishment
(STBR), filed a petition for an administrative hearing to challenge
the permit. They also filed a petition with Floridas Internal
Improvement Fund, which manages public trust lands, to challenge the
establishment of the county erosion control line.
SOB was a group
of approximately 150 people who owned beachfront properties in Destin.
STBR was made up of six people who owned beachfront property in the
area of the proposed project.
When the complaints went before the administrative law judge (ALJ)1
the issues were whether the city and county had reasonably assured that
applicable water quality standards would be preserved, and whether the
city and county had acquired the private property rights necessary to
go forward with the project. The ALJ determined that water quality was
reasonably assured, and recommended that the permit be issued. Accordingly,
DEP issued the permit.
The joint permit was comprised of two individual permits and an authorization,
all of which are governed by different Florida statutes and regulations.
The individual permits were a coastal construction permit and a wetland/environmental
resource permit. The authorization would allow the city and county to
use the states sovereign submerged lands.
The Florida Administrative Code (FAC) allows for these joint permits
to issue when various conditions are met. FAC Rule 18-21.004(3)(b) states:
[s]atisfactory evidence of sufficient upland interest is required
for activities on sovereignty submerged lands riparian to uplands
except in cases where a governmental entity conducts restoration
and enhancement activities, provided that such activities do not unreasonably
infringe on riparian rights. Riparian rights are the property
rights that accompany ownership of land that borders water. SOB and
STBR asserted that the project unreasonably infringed on their members
riparian rights, and the city and county had not shown sufficient upland
interest. The specific riparian right at issue was the right to accretion;
that is, the right to the extension of ones riparian lands by
the natural addition of sand.
The DEP had determined that the project did not unreasonably infringe
on the landowners common-law right to accretion because a Florida
statute mandates the establishment of an erosion control line before
a restoration project may commence.2 The erosion control
line fixes the boundary between private riparian land and state sovereignty
land. However, another section of the statute divests the riparian owner
of the common-law riparian right to accretions after the erosion control
line has been fixed. The DEP recognized this fact, but nonetheless concluded
that there was no unreasonable infringement of riparian rights because
the infringement was authorized by statute. The ALJ affirmed the DEPs
conclusion, with the caveat that there was no unreasonable infringement
of riparian rights assuming the statute was constitutional. The ALJ
could not rule on the constitutionality of the statute because an administrative
body does not have the authority to do so. The permit was issued.
The court first faced the threshold issue of SOBs and STBRs
standing to bring suit, which was challenged by DEP. When organizations
challenge an agency decision in court they must be able to prove associational
or organizational standing; that is, they must show that
their individual members are or will be adversely affected by the decision.
The court found that SOB lacked standing because its members did not
own property in the area that would be affected by the project. All
of STBRs members, on the other hand, owned property that would
be directly affected by the project. STBR was therefore allowed to proceed
with its constitutional claim.
STBR challenged the DEPs issuance of the permit as an unconstitutional
taking of private riparian property rights without just compensation.
Riparian rights include the right to receive accretions to that land
(as well as the corresponding risk of losing property by natural erosion).
In Florida, the boundary between private riparian property and the states
sovereign land is usually the ordinary high water mark, which migrates
over time as sand is added or removed by natural forces. As the boundary
moves, the landowners property at all times retains contact with
However, as described above, a Florida statute requires that the boundary
line be fixed before a restoration project takes place. Any accretion
that occurs after the line is fixed will eliminate the riparian owners
contact with the water. In addition, the landowner is deprived of the
right to accreted land. These were the specific property interests that
STBR argued were unconstitutionally taken.
The court agreed with the landowners. DEPs final order approving
the permit worked to deprive STBRs members of their riparian rights.
Under Florida law, the government is prohibited from taking riparian
rights without the landowners agreement, even when the power of
eminent domain is exercised. Because this taking was clearly an unreasonable
infringement on riparian rights, the city and county would have to provide
satisfactory evidence of sufficient upland interest in accordance with
FAC Rule 18-21.004(3)(b).
The court reversed DEPs final order approving the permit and returned
the issue to the agency to prove sufficient upland interest. The court
also declared invalid the states determination of the erosion
control line, to the extent that it differed from the deeds of STBRs
1. An ALJ has duties and powers similar to those of
a judge in a civil or criminal court, but he or she is a member of the
executive branch of government instead of the judicial branch and presides
only over the proceedings of administrative agencies.
2. Fla. Stat. § 161.141.