City of W. Palm Beach v. BD. TRUSTEES

• Decision Date: 09 September 1999
• Docket Number: No. 821., No. 93
• Citation: 746 So.2d 1085
• Parties: CITY OF WEST PALM BEACH, Petitioner, v. BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND, State of Florida Department of Environmental Protection, and Leisure Resorts, Inc., a Delaware corporation, Respondents.
• Court: Florida Supreme Court

746 So.2d 1085

CITY OF WEST PALM BEACH, Petitioner, v. BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND, State of Florida Department of Environmental Protection, and Leisure Resorts, Inc., a Delaware corporation, Respondents.

Nos. 93,821.

Supreme Court of Florida.

September 9, 1999.

Patrick N. Brown, City Attorney, and Claudia M. McKenna, Assistant City Attorney, West Palm Beach, Florida and William P. Doney of Vance & Doney, West Palm Beach, Florida, for petitioner.

F. Perry Odom, General Counsel, John W. Costigan, Deputy General Counsel and Maureen M. Malvern, Senior Assistant General Counsel, Tallahassee, Florida, for respondents.

Thomas M. Shuler, Apalachicola, Florida, for Olan B. Ward, Sr., Martha Pearl Ward, Anthony Taranto, Antoinette Taranto, J.V. Gander Distributors, Inc., A Florida Corporation, J.V. Gander, Jr. and Three Rivers Properties, Inc., a Florida Corporation, amicus curiae. Jonathan A. Glogau, Assistant Attorney General, Tallahassee, Florida, for Robert A. Butterworth, Attorney General, amicus curiae.

WELLS, J.

We have for review City of West Palm Beach v. Board of Trustees of the Internal Improvement Trust Fund, 714 So.2d 1060 (Fla. 4th DCA 1998) (hereinafter West Palm Beach), which certified conflict with the opinion in State Board of Trustees of the Internal Improvement Trust Fund v. Key West Conch Harbor, Inc., 683 So.2d 144 (Fla. 3d DCA 1996) (hereinafter Key West). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

FACTS AND PROCEDURAL HISTORY

In 1946, the City of West Palm Beach (hereinafter City) obtained a permit to construct a municipal marina on state sovereignty lands submerged under the intracoastal waterway. The marina was built between 1947 and 1949, pursuant to the Butler Act¹ and its predecessor Riparian Rights Act of 1856,² which divested the State of Florida of fee simple title to submerged lands upon which upland owners constructed certain improvements in the interest of encouraging commerce by developing waterfront property. The City's project, known as Palm Harbor Marina, included the erection of four piers with precast reinforced concrete, ranging from 380 to 450 feet in length and extending eastward from the bulkhead into the intracoastal waterway. The City dredged a boat basin in the areas between and surrounding the piers and a channel from the boat basin to the channel of the intracoastal waterway.

In 1957, the legislature repealed the Butler Act as to Palm Beach County but confirmed title for upland riparian owners in "all lands heretofore filled or developed" before the Act's repeal.³ The record reflects that in 1969 the City applied for and received from the Board of Trustees of the Internal Improvement Trust Fund (hereinafter Board) a disclaimer, pursuant to section 253.129, Florida Statutes, as to a 5.2-acre parcel of submerged land that had been filled to provide land upon which to build the marina. In the 1970s, the Board began requiring submerged land leases to compensate the State of Florida for "public and private activities on submerged lands which generate revenues or exclude traditional public uses." Fla.Admin.Code R. 18-21.001(5). Preexisting improvements to submerged lands could be registered as "grandfathered structures" until 1998 without payment of lease fees. Fla.Admin.Code R. 18-21.00405. The record reflects that in 1984 the City applied to the Board for grandfathered status for certain submerged lands relevant to the Palm Harbor Marina. The City stated in its application for grandfather status:

The activity which is the subject of this application is private boat slip rentals.... The slips are not available to the general public for docking boats on a transient basis, but are restricted to those boat owners who pay a fee for their use. The dock area is open to the general public, but the docks are not available for swimming purposes.

"Application for Registration of a Grandfathered Structure," Record on Appeal at 202.

In 1985, the Board granted grandfather status for the land under the piers. In 1994, the City filed suit to quiet title to twenty-six acres of submerged lands in the vicinity of the Palm Harbor Marina including land under the docks previously grandfathered and the dredged bottomlands surrounding them. The Board filed a quiet title counterclaim. The City's lessee, Leisure Resorts, Inc., intervened in the City's case. The Board conceded that the City was entitled to land immediately beneath its four piers, referred to as the "footprints" of the piers. Both the Board and the City moved for summary judgment.

The trial court entered a final summary judgment in favor of the Board on November 1, 1995. The trial court concluded that the City was entitled to a disclaimer only as to the land immediately beneath the four piers (the footprints), which the Board had conceded. The court concluded that dredging of the submerged lands between and surrounding the piers and under a channel from the boat basin to the channel of the intracoastal waterway did not constitute a "permanent improvement" under the Butler Act, and thus the title to these lands had not vested in the City. The judgment confirmed fee simple ownership of these submerged dredged lands in the Board and required the Board to issue a disclaimer to the City for the "footprint" submerged land immediately beneath the four piers.

The City appealed, and the Fourth District Court of Appeal reversed and adopted the Third District's view in Key West that the issue of whether dredging constitutes an improvement should involve a case-by-case analysis that includes a consideration of surrounding lands and other improvements made. City of West Palm Beach v. Board of Trustees of the Internal Improvement Trust Fund, 22 Fla.L. Weekly D2028 (Fla. 4th DCA Aug. 27, 1997). The Attorney General and counsel for the Department of Environmental Protection, acting as attorneys for the Board, filed a motion for rehearing on September 10, 1997. The Fourth District granted the motion, withdrew its 1997 opinion, and substituted a revised opinion, West Palm Beach, which is the case presently under review in this Court. The revised opinion, which is in accord with Judge Gersten's dissent in Key West, affirmed the trial court's final summary judgment in favor of the Board. West Palm Beach, 714 So.2d at 1066.

In West Palm Beach, the Fourth District stated that the issue was whether the City had fee simple title to the submerged lands, a form of ownership that "could give rise to expansion of the existing marina or even to the filling of the submerged lands for more intensive development." Id. at 1061. The district court discussed the evolution of riparian rights law, including the Butler Act, and found that the district courts in Key West and Jacksonville Shipyards, Inc. v. Department of Natural Resources, 466 So.2d 389 (Fla. 1st DCA 1985), had failed to acknowledge the rule of strict construction which this Court provided for riparian rights statutes in State v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640 (1893). 714 So.2d at 1065-66. The Fourth District noted that the Third District had employed reasoning in Key West that was contrary to two factors crucial to West Palm Beach: (1) that the Butler Act is strictly construed in favor of the state; and (2) that submerged land must be actually filled in, bulkheaded, or permanently improved to trigger application of the statute. Id. at 1066. The Fourth District concluded that dredging is not a permanent improvement as intended by the legislature in the Butler Act and held that the City was entitled only to fee simple ownership of the "footprint" land immediately beneath the four piers of Palm Harbor Marina. Id. The Fourth District certified to this Court conflict with Key West. Id.

LAW AND ANALYSIS

As the Fourth District stated below, the broad issue in this case is whether the City has acquired fee simple title to submerged sovereignty state lands by virtue of the City's dredging of such underwater lands, thereby entitling the City to exercise property rights pursuant to such ownership. Resolution of that issue depends upon a statutory construction as to whether the City's dredging of submerged bottomlands in the vicinity of Palm Harbor Marina's piers has "permanently improved" such lands according to the plain language of the now-repealed 1921 Butler Act and thus has caused title to these dredged submerged lands to vest in the City. The Butler Act provided in relevant part:

Section 1. Whereas, It is for the benefit of the State of Florida that water front property be improved and developed; and

Whereas, the State being the proprietor of all submerged lands and water privileges within its boundaries, which prevents the riparian owners from improving their water lots; therefore

The State of Florida, for the consideration above mentioned, subject to any inalienable trust under which the State holds said lands, divests itself of all right, title and interest to all lands covered by water lying in front of any tract of land owned by the United States or by any person, natural or artificial, or by any municipality, county or governmental corporation under the laws of Florida, lying upon any navigable stream or bay of the sea or harbor, as far as to the edge of the channel, and hereby vests the full title to the same, subject to said trust in and to the riparian proprietors, giving them the full right and privilege to build wharves into streams or waters of the bay or harbor as far as may be necessary to affect the purposes described, and to fill up from the shore, bank or beach as far as may be desired, not obstructing the channel, but leaving full space for the requirements of commerce, and upon lands so filled in to erect warehouses, dwellings or other buildings and also the right to prevent encroachments of any other person upon all such submerged land in the direction of their lines continued to the channel by bill in

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