State, Dept. of Environmental Regulation v. Schindler, 91-02713

• Decision Date: 28 August 1992
• Docket Number: No. 91-02713,91-02713
• Citation: 604 So.2d 565
• Parties: STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellant, v. C.G. SCHINDLER, Jr. and L. Brett White, as trustee, Appellees. 604 So.2d 565, 17 Fla. L. Week. D2010
• Court: Florida District Court of Appeals

Page 565

604 So.2d 565

STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellant, v. C.G. SCHINDLER, Jr. and L. Brett White, as trustee,

Appellees.

No. 91-02713.

604 So.2d 565, 17 Fla. L. Week. D2010

District Court of Appeal of Florida,

Second District.

Aug. 28, 1992.

David K. Thulman, Tallahassee, for appellant.

Lee S. Damsker of Maney, Damsker & Arledge, P.A., Tampa, for appellees.

RYDER, Acting Chief Judge.

We have for review a nonfinal order of partial summary judgment as to the liability of the State of Florida, Department of Environmental Regulation (DER) in this taking case. We reverse.

Appellees brought an action against DER and the Board of Trustees of the Internal Improvement Trust Fund (the Board) for the alleged inverse condemnation of a parcel of property located in Indian Rocks Beach, Pinellas County, adjacent to the intracoastal waterway. The property consists of 1.65 acres of uplands and 1.85 acres of wetlands.

Lots 1 through 4 of the subject property were purchased by Edwin Thomas in 1950. Appellees allege in their second amended complaint that from 1943, when the Indian Beach Manor area was platted, until 1960, a portion of the subject property was lost through erosion. Thomas sought a permit from the state to establish a bulkhead and fill the eroded portion of his lots. Title to that portion of the subject property which had eroded and was then submerged, had revested in the state. Appellees further allege that the Board required Thomas to purchase the submerged land from the state as a condition precedent to the issuance of the bulkhead and fill permit. Thomas paid the Board $925.00 and the Board issued a deed conveying him 1.85 acres of submerged land, which abutted his upland lots. The sale was approved at a meeting of the Board on October 18, 1960. Nothing in the minutes of the approval of the sale or in the deed itself grants Thomas a right to fill the submerged 1.85 acres.

Thomas then applied for a permit to fill the submerged portion of lots 1 through 4. On October 12, 1961, the Pinellas County Water and Navigation Authority issued a permit to Thomas to fill the 1.85 acres. By its terms, the permit was subject to approval by the Board. On October 24, 1961, the Board approved the Authority's permit. That permit expired two years after the date of issuance, i.e., October 12, 1963. Thomas never acted on the permit and never filled the submerged 1.85 acres. On April 24, 1964, Thomas purchased Lot 5. Together with his 1.65 acres of uplands, Thomas then owned 3.5 contiguous acres.

On January 18, 1974, George Albrecht and Nellie C. Richey purchased the entire 3.5 acre parcel from Thomas, consisting of 1.65 acres of uplands and 1.85 acres of submerged lands for the purchase price of $75,000.00. On November 21, 1973, prior to his purchase of the property, Albrecht had the entire 3.5 acre parcel appraised. According to that appraisal, the value of the property in its natural, unfilled state was $125,000.00. Its appraised value in the filled state was $230,000.00.

On December 4, 1974, Albrecht and Richey sold appellees, Schindler and White, an undivided one-third interest in the entire 3.5 acres for $60,750.00. On August 25, 1975, Richey sold her remaining undivided one-third interest to appellees for $50,000.00. After those sales, Albrecht, Schindler and White each owned an undivided one-third interest in the property.

On April 6, 1976, Schindler exchanged a parcel of Bahamian property with White for White's remaining interest in the Pinellas property. At that time, Schindler owned an undivided two-thirds and Albrecht owned an undivided one-third interest in the parcel. The approximate value of the exchange was $60,000.00. Approximately six months later, White reacquired a one-third interest through an unrecorded deed. On September 24, 1981, Albrecht sold his remaining one-third undivided interest to White. As of 1986, White, Schindler and White, as trustee, each possessed undivided one-third interests in the property.

Shortly after purchasing the property in 1974, Richey and Albrecht applied to DER for a permit to fill the 1.85 acres. That permit application was denied by DER and the denial was upheld by the Board on November 10, 1976. Albrecht and Richey appealed the denial to the First District Court of Appeal, which upheld the permit denial on December 27, 1977. Albrecht v. Department of Environmental Regulation, 353 So.2d 883 (Fla. 1st DCA 1977), cert. denied, 359 So.2d 1210 (Fla.1978). This present action was commenced after the permit denial was upheld on appeal.

The parcel consists of Lots 1 through 5 of Indian Beach Manor, Indian Rocks Beach. The upland portion of the property is 243 feet along a major road, (Gulf Boulevard) by 118 feet deep. The property is zoned for commercial and residential use, including condominiums, apartments and motels.

After purchase of the property, neither Albrecht nor Schindler ever attempted to make commercial use of the uplands of the property. According to their testimony, it was always Albrecht's and Schindler's intent to fill the entire submerged portion of the property and use it as a whole. At the time of the purchase by Albrecht and Richey in 1974, through at least July 1979 the property has had two income-producing rental houses. Michael Kenton, an environmental management consultant, testified by deposition that the submerged property could be used to compliment the use of the uplands by installing a boardwalk, walkway, gazebo, fishing pier and perhaps boating slips.

Appellees moved for partial summary judgement on the issue of liability against DER and the Board. In the motion for partial summary judgment, appellees claim that as a result of DER's denial of their application to bulkhead and fill the submerged portion of the subject property, that the 1.85 acres of submerged property has no economically reasonable use. The trial court granted appellees motion for partial summary judgment, without making any findings of fact.

Appellees contend that the state has taken, by inverse condemnation, the 1.85 acres of submerged land, without compensation. Appellees claim that the 1.85 acres of submerged land is separate and distinct from the 1.65 acres of uplands, and should be considered separately when determining whether a taking has occurred. DER, on the other hand, contends that the 1.85 acres of submerged land is but a portion of the entire 3.5 acres owned by appellees, and therefore, the entire 3.5 acres should be considered in determining whether a taking has occurred.

DER correctly states that the seminal issue in this case is what "property" the court should consider in deciding whether there has been a taking, i.e., the 1.85 acres of submerged land or the entire 3.5 acres.

Appellees argue that the 1.85 acres should be considered separately because there is a lack of "unity of use" of both the 1.65 acres of uplands and the 1.85 acres of wetlands. See Division of Administration,...