CopyCited 27 times | Published | Supreme Court of Florida | 2008 WL 4381126
...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....
...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. See id. Furthermore, the First District found that: Although section
161.201 has language describing a preservation of common law riparian rights, it does not actually operate to preserve the rights at issue ....
...[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 process." However, section
161.201 expressly preserves the upland owners' littoral rights, including, but not limited to, rights of ingress, egress, view, boating, bathing, and fishing, and prevents the State from erecting structures on the beach seaward of the ECL except as required to prevent erosion....
...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....
...On the other hand, the Act benefits private upland owners by restoring beach already lost and by protecting their property from future storm damage and erosion. Moreover, the Act expressly preserves the upland owners' rights to access, use, and view, including the rights of ingress and egress. See § 161.201....
...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 eminent domain pr...
...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). Fourth, the upland owner's littoral right of access is preserved under the Act. See *1119 §
161.201....
...In this case, the Act expressly protects the right of access to the water, which is the sole justification for the subsidiary right of contact. The Act preserves the rights of ingress and egress and prevents the State from erecting structures upon the beach seaward of the ECL except as required to prevent erosion. See § 161.201....
...edge, the Act, on its face, does not unconstitutionally eliminate the ancillary right to contact. Lastly, we briefly explain our disagreement with the First District's use of Belvedere to discount the Act's express preservation of littoral rights in section 161.201. (4) Belvedere In its opinion, the First District concluded that " Belvedere controls by explicitly holding that [littoral] rights cannot be constitutionally reserved to the landowners as described in section 161.201." 31 Fla....
...Thus, our holding that was limited to the context of condemnation of upland property is inapplicable. Furthermore, in contrast to the circumstances of Belvedere, upland owners under the Act continue to have the ability to exercise their littoral rights to access, use, and view. See §§
161.201;
161.141....
...[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....
...w 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
...parian upland owners whose view or access to the water's edge would be altered or impaired. §
161.191, Fla. Stat. (2005) (emphasis added). Notwithstanding the recognition that the upland landowners' titles have been altered by operation of statute, section
161.201 states that the landowners continue to be entitled to all of their riparian rights: Any upland owner or lessee who by operation of ss....
...Neither shall such use be permitted by the state as may be injurious to the person, business, or property of the upland owner or lessee; and the several municipalities, counties and special districts are authorized and directed to enforce this provision through the exercise of their respective police powers. § 161.201, Fla....
...ed). The express language of the statute stating "and such others [riparian rights] as may be or have been defined by *58 law," indicates that the statute does not completely replace the common law. Moreover, the legislature explicitly recognizes in section 161.201 that common law riparian rights continue to exist. See § 161.201, Fla....
...ian accretion rights. Moreover, because the boundary will now remain fixed, as the high water mark moves seaward, the landowners will also lose the right to have the property's contact with the water remain intact. It is not enough to provide, as in section 161.201, rights of ingress and egress to the water over the state's land. These deprivations of riparian rights are an unconstitutional taking of STBR's members' riparian rights. The Department relied on section 161.201 to rule that the landowners' riparian rights are not affected by its final order. Although section 161.201 has language describing a preservation of common law riparian rights, it does not actually operate to preserve the rights at issue in this case....
...reservation to the landowners of the rights to use and enjoy the riparian rights of and pertaining to the land). Belvedere controls by explicitly holding that the riparian rights cannot be constitutionally reserved to the landowners as described in section 161.201....
CopyPublished | Florida 1st District Court of Appeal | 2001 Fla. App. LEXIS 12839, 2001 WL 1033585
...We affirm all issues raised on appeal. We write to address appellant’s argument that the record lacks competent substantial evidence to support a finding that the beachwalk project is a “structure required for the prevention of erosion” under section 161.201, Florida Statutes (1997)....
...Florida Statutes (1997). As a result of Wallace’s opposition to the beachwalk, the project design was amended so that the beachwalk did not cross the Richmond Hotel property, but stopped to the south and resumed to the north of the property. *1137 Section 161.201, Florida Statutes (1997), provides that any structure constructed seaward of the ECL, must be “required for the prevention of erosion.” Wallace contended in its petition, among other things, that the project was not required for t...
...Following the hearing, the ALJ concluded that the testimony presented by Wallace was too speculative to prove the beachwalk’s adverse impact on the Richmond Hotel. As a result, the ALJ found that Wallace lacked standing to make a challenge under section 161.201....
...llace lacked standing and requesting that the ALJ make additional factual findings and legal conclusions related to the issue of whether the City’s proposed beachwalk project, in its entirety, was “required for the prevention of erosion” under section 161.201....
...Further, the lighting and other improvements will not cause damage to the turtle habitat in the area of the project as adequate safeguards have been proposed to assure minimal impacts .... (emphasis supplied). With respect to the interpretation of section 161.201, the Secretary of DEP adopted the determination of the ALJ “that the Project in its entirety is an ECL structure ‘required for the prevention of erosion’ under § 161.201....” The Secretary also adopted the recommendation that the CCCL permit be issued. This appeal ensued. Section 161.201, Florida Statutes Section 161.201 provides, in pertinent part, that [T]he state shall not allow any structure to be erected upon lands created, either naturally or artificially, seaward of any erosion control line fixed in accordance with the provisions of ss....
...lorida, 24 Stetson L.Rev. 353 (1995); Kenneth G. Oertel & Thomas G. Tomasello, Beach, Shore and Coastal Zone Regulation, Florida Environmental & Land Use Law, Vol. II, ch. 14 (1996 Supp.). Under section
161.131, the Legislature directed that section
161.201 “shall be liberally construed by all con *1139 cerned in a manner to best accomplish the beach and shore preservation purposes and programs.” Required for the Prevention of Erosion Wallace argues that the record contains no evidence that the beachwalk project is “required for the prevention of erosion.” We cannot agree. Initially, it is necessary to discuss what is required in section
161.201 when it provides that no structure be erected seaward of the ECL except “structures required for the prevention of erosion.” First, section
161.201 does not mandate that any structure erected seaward of the ECL can serve only the purpose of the prevention of erosion....
...The statute does provide that the upland owner or lessee shah continue to be entitled to all common law riparian rights and that nothing shah be permitted that would be “injurious to the person, business, or property of the upland owner or lessee.” § 161.201, Fla....
...Nevertheless, nothing in the statute prevents a structure from serving more than one purpose, although one substantial purpose must be to address a recognized need to prevent erosion. The term “required” is not defined in the statute. Wallace asserts that the term “required” means that, under section 161.201, the structure must be “needed” or “essential” to prevent erosion, and that no witness below testified expressly that the project was “required” to prevent erosion. Appellant argues that the City simply wants a pedestrian alternative to Collins Avenue and that environmental concerns were merely an afterthought. Even if we agreed with Wallace that, by the use of the term “required” in section 161.201, the Legislature was directing that any structure must be “needed or essential” to prevent erosion, 1 below the ALJ expressly found that the structure here was required to prevent erosion and we conclude that the record supports such a finding....
