In re: Amendments to the Florida Small Claims Rules

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Walton County v. Save Our Beaches, Inc.

SC06-1447 | SC06-1449

IN THE CASE LAW CITED THERE

WAS FEDERAL CASE LAW WHICH HAS

BEEN OVERRULED BY THE UNITED

STATES SUPREME COURT.

OVERRULED THE CASE, THIS COURT

RELIED ON IN FLORIDA NATIONAL.

>> SO YOU DON'T -- THAT IS

TRUE MAYBE ON THE FEDERAL LAW,

BUT NOT UNDER THE STATE LAW.

THE STATE LAW THE UPLAND OWNER

WHO LOSES PROPERTY BY THE

EVENT CAN RESTORE THE PROPERTY

UP TO WHERE IT WAS BEFORE AND

LIKEWISE THE SOVEREIGN

LANDOWNER CAN RESTORE THE

PROPERTY TO PROTECT ITS

INTEREST, TOO.

THERE IS A DIFFERENCE UNDER

THE COMMON LAW.

HOW DO YOU DEAL WITH THAT IN

THIS CASE?

>> IN THE CASE, WE DON'T DEAL

WITH IT BECAUSE THOSE ISSUES

HAVE NOT BEEN DETERMINED.

THE EVULSION ISSUE WAS RAISED

FOR THE FIRST TIME BY THE

APPELLANTS ON APPEAL.

THERE IS NOTHING IN THE RECORD

TO DETERMINE STRAIGHT WHAT THE

PROPERTY OWNERSHIP WAS IN

ADVANCE OF THE SETTING OF THE

EROSION CONTROL LINE WHILE THE

EROSION CONTROL LINE IS

DIRECTED TO BE GENERALLY OR

ALONG THE HIGH WATER LINE IN

THIS CASE THERE WERE EVENTS

THAT DON'T CHANGE THE PROPERTY

OWNERSHIP THAT TOOK PLACE

BEFORE THAT.

ONE WOULD ASSUME THAT SOMEONE

MAY WISH TO LITIGATE THOSE IN

THE ONLY APPROPRIATE FORM

WHICH IS NOT THIS.

I THOUGHT IT WAS AGREED THAT

EROSION CONTROL LINE ESTABLISH

WAS AT THE HIGH WATER LINE.

>> THAT MAY WELL BE.

>> IF THAT SO, THAT IS NOT THE

QUESTION, IS IT?

>> BUT ALSO IN THE RECORD,

YOUR HONOR, THE PROJECT IS

PROJECTED TO ADD 80 TO 120

FEET OF NEW BEACH SEAWARD OF

THE EROSION CONTROL LINE.

>> UNDER THE COMMON LAW, THE

SOVEREIGN CAN DO THAT, THEN BY

DEFINITION THE LAND IS NO

LONGER RIPARIAN.

>> THAT DETERMINATION HAS NOT

BEEN MADE IN THE CASE.

>> I WANT TO UNDERSTAND THE

POSITION ON THAT.

[LOW AUDIO]

I DON'T KNOW.

IT IS A BEACH RENOURISHMENT.

NO ONE HAS EVER TESTED THE

FACT AS TO WHETHER IT IS

EVULSION.

IT IS GOING TO CHANGE.

THAT IS CORRECT.

>>> HE IS SAYING IN EVERY

SITUATION, THE STATE HAS

CONTROL OF THE LAND.

>> THAT IS NOT THE CASE.

>> WE'RE NOT TALKING ABOUT

EVULSION.

>> OKAY.

>> I DON'T KNOW WHAT THAT IS.

I DON'T KNOW IF IT IS

ACCRETION.

>> I GUESS YOU WERE SAYING YOU

WOULD HAVE THE RIGHT TO THAT

BEACH BECAUSE THAT IS GOING TO

CHANGE.

>> YES.

BUT WHAT WE ARE SAYING IS BY

THE ESTABLISHMENT OF THE

EROSION CONTROL LINE AND BY

NOT APPLYING THE EXCEPTION AS

IN THIS FIRST DISTRICT COURT

OF APPEALS CERTIFIED QUESTION

BY NOT APPLYING THE EXCEPTION,

THAT IS WHY THIS IS AN AS

APPLIED CHALLENGE.

YOU KNOW?

THE NATIONAL PROPERTIES CASE

DIDN'T HAVE A SAVINGS CLAUSE.

THE FLORIDA SUPREME COURT

SAID, IT IS A

CONSTITUTIONAL-VESTED RIGHT,

YOU, YOU CAN'T FIX, YOU CAN'T

FIX A LINE.

IN THE CASE, THE LINE IS FIXED

BY THE STATUTE, BUT THERE IS A

SAVING CLAUSE IF THERE IS A

TAKING.

AND THERE -- AS YOU RECOGNIZED

EARLIER, THE APPELANTS CAN

REALLY ONLY WIN IF THIS IS A

REGULATORY CASE.

IN THE 97 YEARS FROM BROWARD

CASE, NONE OF THOSE CASES STAN

FOR THE PROPOSITION THAT

RIPARIAN RIGHTS CAN BE SERVED

FROM RIPARIAN LANDS WITHOUT

THE PAYMENT OF COMPENSATION.

>> LET ME ASK YOU THIS, DO YOU

AGREE THAT THE RIPARIAN RIGHTS

ARE ACCOMPANIED BY A RIPARIAN

RISK, WHICH IS THE RISK OF

EROSION?

>> YES, SIR.

>> THE STATUTE SEEMS TO, IN

TAKES AWAY THE RIPARIAN RIGHT,

IS ALSO TAKING AWAY THE

RIPARIAN RISK, SO YOU ARE

GETTING A BENEFIT YOU DIDN'T

HAVE UNDER THE COMMON LAW.

>> WELL NOT NECESSARILY.

ONE DOESN'T KNOW WHAT THE

FUTURE WILL HOLD WITH RESPECT

TO THESE BEACHES.

THIS IS AN ATTEMPT TO

RENOURISH A BEACH, BUT THAT IS

PRECISELY WHY, YOUR HONOR,

THEY HAVE SAID, THAT YOU CAN'T

SEVER THE COURTS HAVE SAID SO

CLEARLY, YOU CAN'T SEVER

RIPARIAN RIGHTS FROM THE

RIPARIAN LAND.

[LOW AUDIO]

THE EROSION OCCURRED AFTER

THAT EROSION CONTROL LINE,

THEN THERE IS A MECHANISM TO

AVOID THAT AN YOU GO BACK TO

-- THAT IS FALSE?

IS THAT FALSE?

>> IT MAY BE SPECULATIVE.

RIPARIAN RIGHTS ARE TAKEN FROM

THE APPLICATION OF THIS PERMIT

APPLICATION TO THE CITY OF

DESTINE AND WALT COUNTY.

THERE WAS WAY THAT THIS COULD

HAVE BEEN AVOIDED BY THE

DEPARTMENT REQUIRING A SHOWING

OR THE TRUSTEES REQUIRING A

SHOWING THAT, THAT THERE WAS

SUBMISSION OF INTEREST TO

ENTITLE THE PERMITEE TO THE

PERMIT.

THERE WAS NOT IN THE CASE.

THEY SIMPLY SAY THERE WAS NO

INFRINGEMENT OF A PROPERTY

RIGHT AND THE RULES

SPECIFICALLY OF THE TRUSTEE

SAYS UNLESS THE RIPARIAN RIGHT

IS INFRINGED.

>> UNREASONABLY?

>> UNREASONABLY INFRINGED.

THEY WERE TAKEN BY THE STATE

WITHOUT COMPENSATION.

LET ME GO BACK TO FLORIDA

NATIONAL.

LEFT OFF AN IMPORTANT PLACE

THAT I WANT TO ADDRESS IT.

JUSTICE HAS BEEN ADDRESSING.

>> DEMARCATION LAB WOULD NOT

COMPLY WITH THE LETTER OF OUR

FEDERAL OR STATE CONSTITUTIONS

AN YOU LEFT OFF THE LAST

PHRASE.

NOR PRESENT REQUIREMENT SINCE

SOCIETY.

HOW DOES NOT WHAT THE STATE IS

DOING WITH ALL OF THE

ANNOUNCEMENTS THAT YOUR

OPPONENTS PRESENT MEET THE

PRESENT REQUIREMENTS OF

SOCIETY TO PROTECT THEM

INVALUABLE PUBLIC RESOURCE,

THE PUBLIC BEACHES?

BECAUSE THEY HAVE TAKEN

PROPERTY WITHOUT COMPENSATION

THAT THE STATUTE ALLOWS.

THE PROTECTION OF THESE

BEACHES COULD TAKE PLACE

WITHOUT TAKING, WITHOUT

APPROPRIATION THE PROPERTY

RIGHTS OF THE -- HUE WOULD IT

HAPPEN, IF THE STATE CAME IN

AND PUT IN 80 TO 100-FEET OF

BEACH, THEN, HOW WOULD THE

FEATURE LINE WORK?

IS IT YOUR POSITION THAT THE

LAND WOULD BECOME YOUR

CLIENTS?

HOW DOES IT WORK?

>> THIS IS NOT A CLASS OF

CLAIM -- THE RIGHT OF

ACCRETION, WHAT IS TAKEN THE

MOMENT THAT THE APPLICANT DID

NOT HAVE TO DEMONSTRATE

SUFFICIENT UPLAND INTERESTS.

THE RIGHT TO ACCRETION --

>> ANSWER MY QUESTION.

IF YOU HAVE THE STATE -- YOU

AGREE THE STATE HAS A RIGHT TO

PRESERVE ITS OWN PROPERTY,

CORRECT?

>> YES, SIR.

>> SO IT CAN'T COME IN, IF IT

HAS BEACH EROSION, CORRECT THE

EROSION?

CORRECT?

>> ON ITS PROPERTY?

>> IF IT DID THAT ON ITS

PROPERTY, THE HIGH WATER LINE

WHAT IS THE IMPACT?

IF THE STATE DOES THAT?

>> IF THE STATE DOES THAT

WITHOUT THE STATUTE, THE

BEACHES IS PROTECTED.

THEY GET, THE EROSION CONTROL

LINE ACCORDING TO THE STATUTE

IS ONLY FOR THE PURPOSE OF

DECIDING, WHETHER THE STATE

COST SHARE, BY THE COST SHARE

ON THE BEACH WITH THE

APPLICANT.

IN THE BEACH RENOURISHMENT.

THAT IS WHAT THE EROSION

CONTROL LINE IS.

>> IF THE STATE DOES THAT,

YOUR LAND IS NO LONGER

RIPARIAN BY DEFINITION?

>> THAT IS CORRECT.

THAT IS CORRECT.

AND AS THE COURTS INDICATED,

THE MOMENT YOU SEVER THOSE

RIPARIAN RIGHT INTERESTS THE

UPLAND PROPERTY, IT REQUIRES

COMPENSATION TO THE

UPLANDOWNER.

THE STATE COMPLETELY IGNORES

THAT AND THE STATUTE AND THE

RULE OF THE TRUSTEES

CONTEMPLATE THAT.

THE STATE FOR WHATEVER REASON

HAD ELECTED NOT DO THAT AND

THUS HAS NOT REQUIRED THE

APPLICANT TO DEMONSTRATE

SUFFICIENT UPLAND INTERESTS AN

IN ALL OF THE LINE OF CASE,

AND THERE IS NOT ONE CASE IN

FLORIDA LAW DEALING WITH

RIPARIAN RIGHTS THAT DEALS

WITH IT AS A REGULATORY

TAKING.

>> WELL, LET ME ASK YOU THIS:

I AM REALLY TRYING TO GET HERE

TO WHAT IS THE BOTTOM LINE OF

WHAT IT IS YOU REALLY WANT.

IF THE COUNTY DID NOT COME IN

AND RESTORE THIS BEACH, WHAT

WOULD HAPPEN THEN?

>> IF THE COUNTY DID NOT COME

IN AN RESTORE THE BEACH, THE

BEACH MAY BE ERODED, THE BEACH

MAY ACCRETE, WE DON'T --

>> THE BEACH MAY, IN FACT, THE

WATER MAY IN FACT INTRUDE ON

YOUR CLIENT'S PROPERTY.

>> IT MAY IN FACT TO DO THAT,

YES, YOUR HONOR.

>> SO WHAT IS IT THAT THESE

PROPERTY OWNERS ARE REALLY

LOOKING FOR IN THE CASE?

I MEAN, IF THE COUNTY COMES

IN, RESTORES THE BEACH, THERE

IS MORE BEACH.

YOUR CLIENT HAS BETTER ACCESS,

ALL OF THESE THINGS.

SO WHAT IS IT THAT THEY ARE

REALLY AFTER?

>> THE PROPERTY OWNERS WOULD

-- KNOW, THE PACIFIC RELIEF

REQUESTED IS TO INVALIDATE THE

PERMIT BECAUSE THE PERMIT,

THEY HAVE NOT MET THE PERMIT

CONDITIONS.

THEY HAVE APPROPRIATED RIGHTS

AND NOT REQUIRED TO

DEMONSTRATE IT HAS TO

INSTITUTE EMINENT DOMAIN

PROCEEDINGS AGAINST THE

PROPERTY OWNERS DOWN THAT

6.9-MILE OF BEACH.

>> NO, SIR.

IT IS PASSED DUE SOMEHOW ALLOW

THE APPLICANT TO -- THE

APPLICANT HAS TO DEMONSTRATE

SUFFICIENT INTEREST.

IT HAS TO GET ACQUIESCENCE.

>> ACCORDING TO YOU -- UNDER

161.14 1, IT SAYS IF

AUTHORIZED BEACH RESTORATION,

BEACH NOURISHMENT, CONTROL

PROJECT CANNOT BE ACCOMPLISHED

WITHOUT THE TAKING OF

PROPERTY, THE TAKE MUST BE

MADE BY THE REQUESTING

AUTHORITY BY EMINENT DOMAIN

PROCEED, THE ARGUMENT IS THAT

IT CONSTITUTE AS TAKING, SO

THE CONCLUSION OF THAT

ARGUMENT IS THAT BEFORE THEY

CAN CONDUCT THE BEACH

RESTORATION PROJECT, THEY

HAVE TO CONDUCT EMINENT DOMAIN

PROCEEDINGS AGAINST ALL OF

THE PROPERTY OWNERS DOWN THE

66.9 MILE BEACH.

>> IF IT CAN'T BE ACCOMPLISHED

WITHOUT A TAKING.

A TAKE OF PRIVATE PROPERTY

RIGHTS, BUT THEY DON'T, YOU

KNOW, WHAT I AM TELLING YOU,

YOUR HONOR, IF THEY DON'T

ALWAYS HAVE TO INSTITUTE

EMINENT DOMAIN PROCEEDINGS IF

THEY CAN SHOW SUFFICIENT

INTEREST.

IN OTHER WORD, IN REGARD TO

THE PROPERTY OWNERS AND GOTTEN

THEIR ACQUIESCENCE OR REQUIRED

THE RIGHT SOMEHOW THROUGH A

NEGOTIATIONS, THROUGH PAYMENT

OF COMPENSATION, THROUGH SOME

OTHER MECHANISM, THIS IS ONLY

INVOKE FIRE DEPARTMENT THE

BEACH RENOURISHMENT CAN'T BE

REACCOMPLISHED WITHOUT A

TAKING OF PRIVATE PROPERTY,

AND IF YOU TURN TO --

>> WELL, THE WHOLE POINT ON

THE LAST 25 MINUTES HAS BEEN

THAT THEY ARE TAKING YOUR

RIPARIAN RIGHTS.

BECAUSE THEY HAVE NOT INVOKED

THE SAVINGS CLOSE.

THEY HAVE NOT DONE ANYTHING

ELSE.

>> THEY ARE TAKING THEM

BECAUSE THEY ARE FIXING THE --

WHETHER THAN ALLOWING THE

HIGH-WATER MARK TO MEANDER BY

FIXING IT, THEY ARE, THEY ARE

UNDERSTOOD AT THE NATIONAL

PROPERTIES CASE IS THAT IT IS

UNCONSTITUTIONAL TO DO THAT

UNLESS THEY PAY YOU

COMPENSATION.

>> RIGHT.

THERE WAS NOT A SAVINGS CLAUSE

IN THE NATIONAL PROPERTIES

CASE.

THERE IS A SAVINGS CLAUSE

HERE.

>> THE SAVINGS CLAUSE --

>> JUST TO PAY YOU

COMPENSATION.

BUND ARE THE RULE, YOUR HONOR,

THEY HAVE TO DEMONSTRATE

SUFFICIENT UPLAND IN REST.

>>.

[LOW AUDIO]

HOW DO THEY ESTABLISH?

>> WHAT YOU MEAN?

>> THE RULES FOR THE TRUSTEES

PROVIDE FOR THAT, A WAR RAN

TEE DEED, A QUIT CLAIM DEED,

SOMETHING TO SHOW THAT

INAPPROPRIATING THESE UPLAND

RIPARIAN RIGHTS WHICH MAY BE,

WHICH MAY HAVE BEEN THE

RIPARIAN RIGHTS MAY BE THE

DIFFERENCE IN VALUE BETWEEN AN

EMPTY LOT AND A RIPARIAN LOT

THAT MAY HAVE BEEN THE BASIS

FOR THE REASON OR PAID THE

PURCHASE PRICE AND THE SELLER

SET THE PRICE BUT YOU ARE

SAYING IT DOESN'T MATTER

WHETHER THEY TAKE ONE OF THE

BUNDLES AND NEVER ACTUALLY

THEORETICALLY HURT THESE VIEW

AND I DON'T KNOW HOW YOU PUT

TWO TOGETHER.

>> YOUR HONOR, THE COURTS HAVE

MADE NO DISTINCTIONS BETWEEN

THOSE FOUR RIGHTS IN THE

CASES, IF THAT IS THE CASE, IF

THE RIGHT IS OF LESS VALUE AS

THE RIGHT TO VIEW WHERE THE

BRIDGE DIDN'T TOUCH THE

PROPERTY BUT THE DISTRICT

COURT OF APPEALS SAY YOU TOOK

AWAY THE RIPARIAN RIGHT, IT IS

NOT LEAGUE TORY TAKING, IT IS