Hillsboro Island House Condominium Apartments, Inc. v. Town of Hillsboro Beach

• Decision Date: 07 June 1972
• Docket Number: No. 41529,41529
• Citation: 263 So.2d 209
• Parties: HILLSBORO ISLAND HOUSE CONDOMINIUM APARTMENTS, INC., et al., Defendants-Appellants, v. TOWN OF HILLSBORO BEACH, a municipal corporation in Broward County, Florida, Plaintiff-Appellee.
• Court: Florida Supreme Court

Page 209

263 So.2d 209

HILLSBORO ISLAND HOUSE CONDOMINIUM APARTMENTS, INC., et al., Defendants-Appellants, v. TOWN OF HILLSBORO BEACH, a municipal corporation in Broward County, Florida, Plaintiff-Appellee.

No. 41529.

Supreme Court of Florida.

June 7, 1972.

H. M. Schwenke, of Berryhill, Avery, Schwenke & Williams, Fort Lauderdale, for appellants.

Russell B. Clarke, of Clarke, O'Brien & Wutt, Deerfield Beach, for appellee.

CARLTON, Justice:

In this bond validation appeal, the right of the Town of Hillsboro Beach to offer bonds for the funding of a beach erosion project is challenged as violative of the Town Charter, Chapter 69--1111, Laws of Florida. Our jurisdiction vests under Article V, Section 4(2), Florida Constitution, F.S.A. We affirm the validation judgment rendered by the Circuit Court for Broward County.

We are told that the Town is approximately 3.2 miles in length and only 600 feet wide at its widest point. Its boundaries are formed in the North by the city limits of Deerfield Beach; in the East for the whole of the Town's length by the Atlantic Ocean; in the West, again for the whole of its length, by the Intracoastal Waterway; in the South, by the Hillsboro Inlet. The Atlantic side is eroding in a manner sufficiently serious to have moved the electors of the Town to approve an $800,000 bond issue for countermeasures. The principal activity envisioned is the restoration and extension of the Atlantic beaches by sands brought in from offshore dredging. The improvement, as contemplated by the Town, would principally be effected by the addition of approximately 75 feet of sand eastward from the Mean High Water Base Line along the northernmost 5,000 feet of the Atlantic shore. The amount of $500,000 is to be set aside for this; the remaining funds are to be reserved for other anti-erosion measures as needed.

Appellants are a group of citizens of the Town that live in a condominium located on an island in the Intracoastal Waterway. We will dispose of their arguments in the sequence of their presentation. It is contended that the bond issue is premature because the project cannot be undertaken without approval of outside authorities having jurisdiction over the Atlantic shore, including Broward County, the State of Florida, and agencies of the United States government. This is akin to an argument advanced in Seadade Industries, Inc. v. Florida Power & Light Co., 245 So.2d 209 (Fla.1971), relating to a taking in condemnation for a project which had not yet been approved by outside governmental agencies.

We held in Seadade that a reasonable demonstration that regulations would be met, and a similar demonstration that work in advance of approval would not lead to irreparable harm to the environment should approval be denied, would be sufficient, if deemed so by the courts, unless an adverse party presented strong and convincing proof to the contrary. The Seadade rationale would seem appropriate here. We hold that the bond issue could be validated where the requisite reasonable showings have been made, where these showings have been judged sufficient by the court involved, and where the adverse party has not presented strong and convincing proof to the contrary. From the record, it appears that these tests have been met here. The project fits into the general scheme of anti-erosion measures currently in operation in Broward County, and those sanctioned by Fla.Stat. Ch. 161, F.S.A. known as the 'Beach and Shore Preservation Act.' The Town Engineer, who is also an administrator for the Broward County Erosion Prevention District, has testified that the necessary permissions should be forthcoming. Appellants have presented little adverse evidence; their main thrust is simply that the permissions have not yet been secured. Although we find that under the circumstances this issue can be satisfactorily disposed of, we caution that it is a vital and decisive issue in litigation of this nature.

Next, it is contended that the erosion problem should be addressed by special assessment, not by a general obligation bond, because only the property owners along the Atlantic shore will be benefited. We do not agree. The benefit to the shore owners is incidental to the preservation of the shore line as the eastern boundary of the Town. Moreover, the geography of the Town is such that serious incursion of Atlantic waters would threaten its existence; recall that the Town is sandwiched between the ocean and the Intracoastal Waterway, and is 600 feet wide at its widest point.

Appellants argue that a substantial portion of the improvements would be located outside of the Town boundary on the Atlantic, which is set by the Town Charter (Art. I, § 8) as being the 'ordinary low water mark.' They also point out that under Fla.Stat. § 161.191, F.S.A., title to improved beach land is divided between the upland owners and the State; furthermore, the Town itself owns no property along the shore. While these things are true, we do not think...