Lost Tree Village Corp. v. Board of Trustees of the Internal Imp. Trust Fund, 92-1985

Decision Date03 September 1997
Docket NumberNo. 92-1985,92-1985
Citation698 So.2d 634
Parties22 Fla. L. Weekly D2072 LOST TREE VILLAGE CORPORATION, Appellant, v. BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, et al., Appellees.
CourtFlorida District Court of Appeals

Mary F. Smallwood and Margaret-Ray Kemper of Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A., Tallahassee, for Appellant.

Kenneth J. Plante, General Counsel and Edwin A. Steinmeyer, Assistant General Counsel of Department of Natural Resources, Tallahassee, for Appellee-Board of Trustees of the Internal Improvement Trust Fund.

Joseph Z. Fleming of Joseph Z. Fleming, P.A., Alley and Alley/Ford & Harrison LLP, Miami, for Appellee-Florida Audubon Society.

KLEIN, Judge.

Lost Tree Village Corporation appeals from a final order of the Division of Administrative Hearings which determined that certain proposed amendments to rules 18-21.003 and 18-21.004 of the Florida Administrative Code are valid. These amendments will prevent construction of bridges and utility lines over submerged sovereign land owned by the Internal Improvement Trust Fund (IITF). Lost Tree challenged the amendments because it wants to construct a residential development and golf course on seven undeveloped islands in the Indian River. We affirm.

Generally speaking, islands are defined in the amendments as including all islands which are "completely separated from the coastal mainland by marine or estuarine waters," all islands within aquatic preserves except for specifically named lakes and rivers, and "other islands within confined or semi-confined marine or estuarine waters with an open connection to the Atlantic Ocean or Gulf of Mexico, such as bays, lagoons or inlets." Fla. Admin. Code R. 18-21.003. The amendments apply to islands which were not connected to the mainland by a bridge suitable for automobile traffic and which had a density of less than one structure per five acres as of December 18, 1990. The amendments also restrict, but do not eliminate, docks. There was evidence that 867 islands would be affected by these rules.

Lost Tree contends that pursuant to section 120.52(8)(b), Florida Statutes (1991), IITF has exceeded the rule making authority delegated to it by the legislature, arguing that, although the legislature has adopted a number of regulatory programs which affect islands like these, it has not chosen to prohibit their development. It also argues that the legislature has authorized local governments to regulate the development of these islands through section 125.01(1)(g), and that IITF has usurped that power.

IITF correctly responds that it is not regulating development of these islands, but rather is regulating the use of its own submerged land. It points out that islands such as these can still be developed by the use of generators for making electricity and septic tanks, and that those uses would be regulated by local governments. IITF is only managing the State's lands, "important to public drinking water supply, shellfish harvesting, public recreation, and fish and wildlife propagation and management." Fla. Admin. Code R. 18-21.001 In Sarasota Anglers Club, Inc. v. Burns, 193 So.2d 691, 693 (Fla. 1st DCA 1967), the first district explained:

The title to public bottoms is vested in the state as a public trust to be held for the benefit of all the people.... It is quite obvious that the public interest demands that there be some impairment of the individual citizen's right to enjoy absolute freedom in the use of public bottoms. The decisions recognize this fact.

It necessarily follows that some agency must determine when, under what circumstances, and to what extent the public interest demands or permits the construction of wharfs, docks, piers, buoys, the dredging of channels and the filling of parts of the public bottoms.

Article X, Section 11 of the Florida Constitution provides:

The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale of such lands may be authorized by law, but only when in the public interest. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest.

We conclude that IITF has not exceeded its authority.

The amended rules preclude the use of submerged land to provide services to islands that had not been developed as of December 18, 1990. Lost Tree argues that the use of this date, rather than the date the rules became effective, makes their application impermissibly retroactive as to its application which had...

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2 cases
  • STATE, BD. OF TRUSTEES OF INTERNAL IMPROVEMENT TRUST FUND v. Day …
    • United States
    • Florida District Court of Appeals
    • 13 Septiembre 2001
    ...the Internal Improvement Trust Fund, 743 So.2d 1121, 1122-23 (Fla. 1st DCA 1999); Lost Tree Village Corp. v. Board of Trustees of the Internal 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 12......
  • State v. Day Cruiese Assoc.
    • United States
    • Florida District Court of Appeals
    • 13 Septiembre 2001
    ...Internal Improvement Trust Fund, 743 So. 2d 1121, 1122-23 (Fla. 1st DCA 1999); Lost Tree Village Corp. v. Board of Trustees of the Internal Improvement Trust Fund, 698 So. 2d 634, 635-36 (Fla. 4th DCA 1997); Board of Trustees of the Improvement Trust Fund v. Barnett, 533 So. 2d 1202, 1206 (......

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