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Date of Issue: October 08, 2008

High court: renourishment a state duty

The Florida Supreme Court Sept. 29 ruled that the state has a duty to renourish critically eroded shorelines.

The 5-2 ruling went against six waterfront property owners in the city of Destin who objected to a government-sponsored renourishment of their beaches despite erosion.

The supreme court ruled that the state has a constitutional obligation to protect Florida’s beaches and that the Beach and Shore Preservation Act allows the state to rebuild or renourish shorelines with sand.

Locally, Coquina Beach is due for renourishment next year and a large-scale, multi-government renourishment operation is planned for 2011-2012 on Anna Maria Island. An area that has been hardest hit by recent storms, the bayside property between Bean Point and the Rod & Reel Pier in Anna Maria, is not due to be renourished, the result of a conflict with the Florida Department of Environmental Protection.

The DEP has deemed the bayfront in north Anna Maria “critically eroded,” but not eligible for state funding for renourishment because the area is considered in Tampa Bay, not the Gulf of Mexico.

Property owners in the area are continuing to lobby for relief, but several legal experts and local attorneys said last week that they did not think the supreme court’s decision would add weight to Anna Maria residents’ pleas.

“The statute sets up a duty for the state,” said Chuck Webb, a local attorney and also a candidate for the Anna Maria City Commission. However, he emphasized that the act — Chapter 161 in the Florida Statutes — refers specifically to “sand beaches of the state fronting on the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida.”

Additionally, Webb said the court case really is about the state’s impact on private property rights.

The Destin case involved property owners in an area slated for renourishment objecting to the project, claiming it unconstitutionally deprived them of their common-law water rights.

The dispute goes back to 1995, when the DEP, the city of Destin and Walton County began studying 6.9 miles of Gulf of Mexico beaches damaged by Hurricane Opal and, before that, Hurricane Georges.

In 2003, the city and county sought a permit and authorization to use sovereign submerged lands for the project. Also, in 2003, a survey was conducted to establish an erosion-control line.

The DEP issued a notice of intent to issue a permit in July 2004.

In January 2005, Save Our Beaches Inc. and Stop the Beach Renourishment, representing private property owners, filed petitions challenging the permit. Stop the Beach Renourishment also challenged the erosion-control line established during the survey work. The erosion-control line established the line between state-owned land below mean high water and privately owned land above mean high water.

DEP issued the permit in July 2005 and opponents turned to the First District Court of Appeals, which found that the permit and erosion-control line were invalid and that a taking of riparian rights had occurred.

The dispute went on to the state supreme court, which heard arguments in April 2007.

In its ruling last week, the court declared, “Concisely put, the state has a constitutional duty to protect Florida’s beaches, part of which it holds ‘in trust for all the people.’”

The court further held that the Beach and Shore Preservation Act, “by authorizing the addition of sand to sovereignty lands … prevents further loss of public beaches, protects existing structures, and repairs prior damage. In doing so, the act promotes the public’s economic, ecological, recreational and aesthetic interests in the shoreline. 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.”

“The court’s opinion reflects that the Beach and Shore Preservation Act implements the state’s constitutional duty to protect Florida’s beaches, and achieves a reasonable balance between public and private interests in the shore,” Michael W. Sole, director of the Florida Department of Environmental Protection, said in a news release.

But sand may not be moved into Destin anytime soon. The ruling stated, “We again emphasize that our decision in this case is strictly limited to the context of restoring critically eroded beaches under the Beach and Shore Preservation Act.”

That means the property owners could challenge the classification of the beach areas as “critically eroded.”

Judge J. Lewis, in his dissenting opinion, said the court’s decision destroyed property rights and “as constitutionally protected rights slide, it becomes more difficult to protect others. The rights inherent in private-property ownership are at the foundation of this nation and this state.”