CopyCited 27 times | Published | Supreme Court of Florida | 2008 WL 4381126
...To determine the mean high water line (MHWL) for the restoration area, a coastline survey was completed in September 2003. The Board of Directors for the Internal Improvement Trust Fund (Board) subsequently established an erosion control line (ECL) at the surveyed MHWL. Pursuant to section 161.191(1) of the Beach and Shore Preservation Act, this ECL became the boundary between publicly owned land and privately owned upland after it was recorded....
...statutes and rules. Before the First District, STBR challenged the Department's final order, claiming in essence that the final order is unconstitutional because it was issued pursuant to an unconstitutional statute. Specifically, STBR asserted that section
161.191(1) of the Beach and Shore Preservation Act, which fixes the shoreline boundary after the ECL is recorded, unconstitutionally divests upland owners of all common law littoral rights by severing these rights from the uplands. According to STBR, after the recording of the ECL and by operation of section
161.191(1), the State becomes owner of the land to which common law littoral rights attach because it owns all lands seaward of the ECL. STBR further argued that the littoral rights, which are expressly preserved by section
161.201 of the Act, are an inadequate substitute for the upland owners' common law littoral rights that are eliminated by section
161.191. The First District agreed the Act divests upland owners of their littoral right to receive accretions and relictions because section
161.191(2) provides that the common law rule of accretion and reliction no longer operates once the ECL is recorded. See Save Our Beaches, 31 Fla. L. Weekly at D1177, ___ So.2d at ____. The First District also agreed that the Act eliminates the right to maintain direct contact with the water since section
161.191(1) establishes the ECL as the shoreline boundary....
...n mind the requirements of proper engineering in the beach restoration project, the extent to which erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible." §
161.161(5). Pursuant to section
161.191(1), this ECL becomes the new fixed property boundary between public lands and upland property after the ECL is recorded. [8] And, under section
161.191(2), once the ECL has been established, the common law no longer operates "to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial...
...ithin a two-year period, is halted *1109 in excess of a six-month period, or the authorities do not maintain the restored beach, section
161.211 dictates that the ECL is cancelled. II. DISCUSSION As stated earlier, the First District determined that section
161.191 of the Beach and Shore Preservation Act facially results in an unconstitutional taking of upland owners' littoral rights to receive accretions and to maintain direct contact with the water despite the express preservation of littoral rights in section
161.201....
...h and Shore Preservation Act results in an unconstitutional taking of upland owners' rights to accretions and to contact with the water. In its opinion, the First District essentially employed the following three-step analysis: (1) it found sections
161.191 and
161.201, which fix the shoreline boundary and suspend the operation of the common law rule of accretion but preserve the littoral rights of access, view, and use after an ECL is recorded, facially unconstitutional; (2) then, because emine...
...[15] Thus, because *1118 the Act authorizes actions to reclaim public beaches that are also authorized under the common law after an avulsive event, the Act is facially constitutional. (2) Common Law Right to Accretion Additionally, we disagree with the First District's determination that section 161.191(2) results in a facial and unconstitutional taking of the littoral right of accretion....
...After renourishment, the risk of loss and repair lies more with the State than with the upland owner. Third, all land has an owner under the Act because the property line between private and public land is clearly and conveniently fixed at the ECL. See § 161.191(1)....
...Having explained our disagreement with the First District regarding the right to accretion, we now discuss the First District's analysis of the supposed independent right of contact with the water. (3) Contact is Ancillary to the Littoral Right of Access The First District concluded that, under section 161.191(1), upland owners "lose the right to have the property's contact with the water remain intact." Save Our Beaches, 31 Fla....
...[2] For ease of reading, we refer generally to the statutory provisions at issue as "the Beach and Shore Preservation Act" or the "Act." However, this case only concerns the following provisions of part I of chapter 161, Florida Statutes (2005): sections
161.088,
161.101,
161.141,
161.161,
161.191,
161.201, and
161.211....
...lorida law because it is part of our system of private-property ownership. [25] See Save Our Beaches, 31 Fla. L. Weekly at D1173, ___ So.2d at ___. [26] §
161.151(3), Fla. Stat. (2005); see also §
161.141, Fla. Stat. (2005). [27] See §§
161.141,
161.191,
161.201, Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2006 WL 1112700
...approving the erosion control line in the public records and record the survey showing the area of beach to be protected and the erosion control line in the book of plats of the county or counties where the erosion control line lies. Significantly, section 161.191 provides that the erosion control line becomes the new property boundary, denying the upland landowners any property gained by accretion: (1) Upon the filing of a copy of the board of trustees' resolution and the recording of the surv...
...erosion control line beyond the limits set forth in the survey recorded by the board of trustees unless the state first obtains the written consent of all riparian upland owners whose view or access to the water's edge would be altered or impaired. § 161.191, Fla....
...iparian rights: Any upland owner or lessee who by operation of ss.
161.141-161.211 ceases to be holder of title to the mean high-water line shall, nonetheless, continue to be entitled to all common-law riparian rights except as otherwise provided in s.
161.191(2), including but not limited to rights of ingress, egress, view, boating, bathing, and fishing....
...(2005) (emphasis added). The final order expressly recognized that at least two riparian rights, (i) the right to receive accretions and relictions to the property, and (ii) the right to have the property's contact with the water remain intact, were eliminated by section 161.191. However, the final order found no "infringement" of these riparian rights. This finding was based solely on the fact that the elimination of these rights was authorized by section 161.191....
...Moreover, the legislature explicitly recognizes in section
161.201 that common law riparian rights continue to exist. See §
161.201, Fla. Stat. (2005) (providing that upland owners "continue to be entitled to all common-law riparian rights except as otherwise provided in s.
161.191(2) [eliminating right of accretion] ....") (emphasis added)....
...ing the riparian's rights and the sovereign's rights. Medeira Beach,
272 So.2d at 213 (emphasis added). The erosion control line was established by the Board of Trustees on the high water mark. That became the fixed new boundary of the property. See §
161.191(1), Fla....
...ies extend to the high water mark. B. Deprivation of Riparian Rights The parties agree that this project will cause the high water mark to move seaward and ordinarily this would result in the upland landowners gaining property by accretion. However, section 161.191(2) states that "the common law shall no longer operate to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion...." Therefore, the Department's final order, approving...
