Lost Tree Village Corp. v. Board of Trustees of the Internal Imp. Trust Fund, No. 92-1985

• Court: Court of Appeal of Florida (US)
• Writing for the Court: KLEIN; WARNER, J., and OFTEDAL, RICHARD L.
• Citation: 698 So.2d 634
• Parties: 22 Fla. L. Weekly D2072 LOST TREE VILLAGE CORPORATION, Appellant, v. BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, et al., Appellees.
• Decision Date: 03 September 1997
• Docket Number: No. 92-1985

Page 634

698 So.2d 634 22 Fla. L. Weekly D2072 LOST TREE VILLAGE CORPORATION, Appellant,
v.
BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, et al., Appellees. No. 92-1985. District Court of Appeal of Florida,
Fourth District. Sept. 3, 1997.

Page 635

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...