Board of Trustees of Internal Imp. Trust Fund of State of Fla. v. Barnett, No. 88-578

CourtCourt of Appeal of Florida (US)
Writing for the CourtBefore SCHWARTZ; PER CURIAM; Nowhere in the Complaint is it alleged that the Consent of Use was erroneously issued. Rather, Plaintiff alleged that an action taken by Monroe County after the Consent of Use was issued
Citation533 So.2d 1202,13 Fla. L. Weekly 2590
Docket NumberNo. 88-578
Decision Date22 November 1988
Parties13 Fla. L. Weekly 2590 BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND OF the STATE OF FLORIDA, Appellant, v. Mark BARNETT, f/k/a Mark Bartecki, and Lynn H. Kephart, individually, and Spoonbill Sound, Inc., a Florida corporation, Appellees.

Page 1202

533 So.2d 1202
13 Fla. L. Weekly 2590
BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND OF the STATE OF FLORIDA, Appellant,
v.
Mark BARNETT, f/k/a Mark Bartecki, and Lynn H. Kephart, individually, and Spoonbill Sound, Inc., a Florida corporation, Appellees.
No. 88-578.
District Court of Appeal of Florida,
Third District.
Nov. 22, 1988.

Page 1203

Ross Stafford Burnaman, Asst. Gen. Counsel, State of Fla., Dept. of Natural Resources, Tallahassee, for appellant.

Morgan & Hendrick and James T. Hendrick, Key West, for appellees.

Before SCHWARTZ, C.J., and BASKIN and JORGENSON, JJ.

PER CURIAM.

The Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, plaintiff below, appeals from a summary judgment entered by the circuit court of Monroe County in favor of Mark Barnett, f/k/a Mark Bartecki, Lynn H. Kephart, and Spoonbill Sound, Inc. The circuit court determined that the appellees, defendants below, were entitled to judgment as a matter of law, based upon the following findings of fact and conclusions of law:

"FINDINGS OF FACT

"1. This is an action brought by Plaintiff the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida for trespass seeking damages and a mandatory and permanent injunction.

"2. The property which is the subject of this action is owned by Plaintiff and lies below the mean high water line immediately adjacent to upland property described as Government Lot 8, Section 28, Township 66 South, Range 28 East, Cudjoe Key, Monroe County, Florida.

"3. Defendants Barnett and Kephart are the owners of the upland property located immediately adjacent to the submerged lands owned by Plaintiff. Spoonbill Sound, Inc., is the developer of a proposed single family development on such upland property. Defendants' plans call for an 8-slip dock to serve the residents of the upland development.

"4. Despite considerable litigation, the Department of Environmental Regulation has issued a permit for the dock, Bartecki v. Beardsley, 471 So.2d 1325 (Fla. 1st DCA 1985), and Defendants have received approval from Monroe County for the proposed development, Bartecki v. Department

Page 1204

of Community Affairs, 498 So.2d 972 (Fla. 1st DCA 1986). The United States Army Corps of Engineers has also issued a permit for the dock.

"5. Defendant Barnett applied to Plaintiff for permission to use the state-owned submerged lands which are the subject of this action. On April 8, 1983, the Department of Natural Resources, Division of State Lands (the 'Department'), acting on behalf of Plaintiff, issued a consent of use (the 'Consent of Use') to Barnett, authorizing the construction of the dock on state-owned submerged lands (Exhibit 'A' to the Complaint). The Consent of Use provides, in pertinent part:

The proposed project is not in conflict with any of our existing rules; therefore we have no objections ... Please consider this the authority sought under section 253.77, Florida Statutes, to pursue this project.

"6. On June 24, 1983, the Department sent a letter to Barnett's agent (Exhibit 'B' to the Complaint), the complete text of which is set forth below:

We have been advised that the above captioned application has been denied a variance by Monroe County Board of Adjustment.

As a variance will not be issued for the project, this Department is withdrawing its consent and will place your application in an inactive status and no further action will be taken on it.

If you have any questions concerning this matter, please do not hesitate to contact Grant Gelhardt, at 904/488-2297.

"7. By letter dated July 6, 1983, Barnett's agent requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, regarding the Department's letter of June 24, 1983.

"8. On August 10, 1983, the then-Deputy General Counsel for the Department wrote a letter to Barnett's attorney (Exhibit 'C' to the Complaint, document 1) stating, in pertinent part:

As agreed, your client's request for a hearing will, for the time being, be held in abeyance. I have requested Department staff to conduct an on-site inspection of the area of the proposed structure and to assess impacts on marine life. You will be notifed shortly of the staff's findings and the Department's intention to act upon your client's application. The right to request an administrative hearing will be activated at that time.

Plaintiff did not notify Barnett 'shortly' of its intention to act or of his 'right to request an administrative hearing.'

"9. By letter dated December 8, 1986, Barnett's attorney requested reinstatement of the Consent of Use. More than three and one-half months later, the Department responded (Exhibit 'C' to the Complaint, document 2) stating, in pertinent part:

Now pending before the Department of Natural Resources is your request for hearing, related to the Department's withdrawal of its consent of use; this request for hearing [made more than three and one half years ago] will [continue to] be held in abeyance, as there has been no final agency action of the application that would warrant an administrative hearing at this time.

* * *

* * *

Once all appropriate permits, including local development orders, have been obtained, the application will be reviewed based on the current rules, guidelines and policies for docking facilities in the Florida Keys, including the Florida Keys Marina Siting Criteria and the current provisions of Rule 18-21 governing applications.

"10. Defendants thereafter notified the Department of their position that the letter withdrawing the Consent of Use was illegal and...

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5 practice notes
  • Childers v. Department of Environmental Protection, No. 96-4182
    • United States
    • Court of Appeal of Florida (US)
    • July 16, 1997
    ...within the ambit of its statutory authority." Board of Trustees of Internal Improvement Trust Fund of State of Florida v. Barnett, 533 So.2d 1202, 1206 (Fla. 3d DCA 1988)(citing Reversed. ERVIN and DAVIS, JJ., concur. --------------- 1 Article X, section 16(b)(2) of the Florida Constit......
  • STATE, BD. OF TRUSTEES OF INTERNAL IMPROVEMENT TRUST FUND v. Day …, No. 1D00-1058.
    • United States
    • Court of Appeal of Florida (US)
    • September 13, 2001
    ...Improvement Trust Fund, 698 So.2d 634, 635-36 (Fla. 4th DCA 1997); Board of Trustees of the Internal Improvement Trust Fund v. Barnett, 533 So.2d 1202, 1206 (Fla. 3d DCA 1988) (discussing an asserted distinction between the proprietary function of granting consent for construction of a priv......
  • State v. Day Cruiese Assoc., 00-1058
    • United States
    • Court of Appeal of Florida (US)
    • September 13, 2001
    ...Improvement Trust Fund, 698 So. 2d 634, 635-36 (Fla. 4th DCA 1997); Board of Trustees of the Internal Improvement Trust Fund v. Barnett, 533 So. 2d 1202, 1206 (Fla. 3d DCA 1988) (discussing an asserted distinction between the proprietary function of granting consent for construction of priv......
  • State, Bd. of Trustees of Internal Imp. Trust Fund v. Lost Tree Village Corp., Nos. 91-1813
    • United States
    • Court of Appeal of Florida (US)
    • June 11, 1992
    ...submerged lands, "is different from other state agencies acting in a regulatory capacity," Board of Trustees v. Barnett, 533 So.2d 1202, 1206 (Fla. 3d DCA1988), the policies underlying the public trust doctrine do not of themselves exempt the Board from the operation of the APA. S......
  • Request a trial to view additional results
5 cases
  • Childers v. Department of Environmental Protection, No. 96-4182
    • United States
    • Court of Appeal of Florida (US)
    • July 16, 1997
    ...within the ambit of its statutory authority." Board of Trustees of Internal Improvement Trust Fund of State of Florida v. Barnett, 533 So.2d 1202, 1206 (Fla. 3d DCA 1988)(citing Reversed. ERVIN and DAVIS, JJ., concur. --------------- 1 Article X, section 16(b)(2) of the Florida Constit......
  • STATE, BD. OF TRUSTEES OF INTERNAL IMPROVEMENT TRUST FUND v. Day …, No. 1D00-1058.
    • United States
    • Court of Appeal of Florida (US)
    • September 13, 2001
    ...Improvement Trust Fund, 698 So.2d 634, 635-36 (Fla. 4th DCA 1997); Board of Trustees of the Internal Improvement Trust Fund v. Barnett, 533 So.2d 1202, 1206 (Fla. 3d DCA 1988) (discussing an asserted distinction between the proprietary function of granting consent for construction of a priv......
  • State v. Day Cruiese Assoc., 00-1058
    • United States
    • Court of Appeal of Florida (US)
    • September 13, 2001
    ...Improvement Trust Fund, 698 So. 2d 634, 635-36 (Fla. 4th DCA 1997); Board of Trustees of the Internal Improvement Trust Fund v. Barnett, 533 So. 2d 1202, 1206 (Fla. 3d DCA 1988) (discussing an asserted distinction between the proprietary function of granting consent for construction of priv......
  • State, Bd. of Trustees of Internal Imp. Trust Fund v. Lost Tree Village Corp., Nos. 91-1813
    • United States
    • Court of Appeal of Florida (US)
    • June 11, 1992
    ...submerged lands, "is different from other state agencies acting in a regulatory capacity," Board of Trustees v. Barnett, 533 So.2d 1202, 1206 (Fla. 3d DCA1988), the policies underlying the public trust doctrine do not of themselves exempt the Board from the operation of the APA. S......
  • Request a trial to view additional results

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