Zabel v. Pinellas County Water and Nav. Control Authority, 32831
| Decision Date | 20 January 1965 |
| Docket Number | No. 32831,32831 |
| Citation | 171 So.2d 376 |
| Parties | Alfred G. ZABEL and David H. Russell, Appellants, v. PINELLAS COUNTY WATER AND NAVIGATION CONTROL AUTHORITY, Appellee. |
| Court | Florida Supreme Court |
Harris & Harris, St. Petersburg, for appellants.
Page S. Jackson and Julian R. Howay, St. Petersburg, for Pinellas County Water and Navigation Control Authority, appellee.
Byron T. Sauls, St. Petersburg, as amicus curiae.
Appellants Zabel and Russell petitioned the Pinellas County Water and Navigation Control Authority, appellee, requesting that it fix a bulkhead line and grant them a dredge and fill permit for approximately 11.5 acres of submerged land in Boca Ciega Bay under the authority of F.S. §§ 253.122, 253.124, F.S.A. and Chapter 31182, Special Acts 1955. An examiner appointed by the Authority recommended denial of appellants' application. The Authority affirmed the examiner. The Circuit Court of Pinellas County held the Authority correct in its confirmance and found additionally that appellants had elected their remedy and estopped themselves from urging unconstitutionality of the acts under which they were at the same time seeking relief.
The District Court of Appeal, Second District, 1 affirmed the Circuit Court on the merits of the cause but held the lower court erred in holding appellants were barred under doctrine of election of remedies and estopped from raising the constitutional issue. The District Court then proceeded to 'deal initially with the matter of constitutionality' and held the acts in question valid 'even though title to the submerged lands had been acquired prior to the passage of the acts protested * * *.' 2
Appellants assert they were erroneously required by the Authority and the trial court to carry the burden of proof in showing no adverse effect upon the public interest. 3 The question was raised before the Authority, the trial court and the District Court of Appeal and is presented here. Appellee, although assuming that appellants have the burden of proof, has ignored this issue and argues only there is evidence in the record to sustain the findings of the examiner.
The examiner, the Authority and the trial court apparently held the statute required appellants to prove the proposed fill would not materially affect adversely any of the eight specified public interests. It is not clear the statutes do in fact place the burden of proof upon the property owner but, if they do, such requirement would render the statute unconstitutional as to the facts of this case.
The District Court appears to have agreed with appellants' contention that Chapter 31182 provides for refusal of a permit only where it is shown the proposed fill will have material adverse effect. The court held, under the statute, the Authority was free to make its own determination independent of presumption as to the examiner's findings and reasoned '* * * it is obvious that the determination made [by the Authority] was that the proposed plan would produce materially adverse effects.' 4 We agree the Authority could have made an independent determination but, in doing so, it was required to comply with Chapter 31182 Special Acts of 1955(8)(e) 5 by reducing its determination to writing and filing it with the clerk for the inspection of the public. Our examination of the Minutes of the meeting at which the Authority voted to deny the permit persuades us the Authority did not make an independent determination which was reduced to writing and filed as required but merely accepted the findings and determination of the examiner, which were based upon an erroneous application of the rule relating to the burden of proof.
The examiner found the appellants had failed to prove there would be no adverse effect but he did not find that the appellee had proven material adverse effect would result from the proposed fill. He reached these conclusions:
'Based upon the testimony taken before me, and my personal inspections of the proposed dredge and fill site, it is the finding of the Examiner that Applicants have failed to establish that the proposed plan of development will have no adverse effect on the use of the waters of Pinellas County for transportation, recreational or other public purposes, flow of water or tidal currents and erosion and shoaling of channels in the area necessarily affected by the proposed development; further applicants have failed to establish that the proposed plan of development will have no adverse monetary or other effect upon the uplands surrounding or necessarily affected by said plan of development.' (Emphasis supplied)
The examiner did not find, nor could he have on the record, that any material adverse effect on the public interest had been demonstrated. The evidence in the record and as summarized by the District Court in its opinion 6 failed to meet the standard of proof contemplated by the statute.
The burden and the degree of proof required in proceedings such as those involved here are of fundamental importance in view of the property rights involved. The sale of the land by the state to appellants' predecessors in title expressly carried with it by statute the right to bulkhead and fill. This right, a form of property, 7 was at all times a legitimate public concern and as such is subject to reasonable regulation under the police power. 8
Conceding, for the purpose of this cause that, under certain conditions, a police power regulation could, by prohibiting filling or dredging, deprive the owner of any valuable use of his property, it is clear that such regulation can be valid only if a material adverse effect specified by the Legislature is proven. 9 Such regulation, absent proof of an overriding public necessity, constitutes the taking of private property without just compensation. 10
As previously stated the conveyance from the Trustees of the Internal Improvement Fund carried with it the right to bulkhead and fill. 11 That conveyance is presumptively valid and based upon a determination by the Trustees that the public interest would not be impaired. In Hayes v. Bowman, 91 So.2d 795, 802 (Fla.1957) this court stated:
12
In 1951 the conveyances by the trustees of the lands in question were 'ratified, confirmed, and validated in all respects.' 13 If, because of the passage of time and changed conditions, the public interest will be impaired by the proposed use of the land the burden is on the objectors to demonstrate that fact.
In Gies v. Fischer, 14 this court affirmed the District Court's construction of F.S. § 253.122, F.S.A. as authorizing the establishment of a bulkhead line only at a point where in fact 'a further extension of land or islands outward would be an interference with the servitude in favor of commerce and navigation.' and held:
'Under the rule of the cited cases there can be no doubt that in the absence of some overriding necessity a conveyance of public lands or rights in lands which actually results in the impairment of the public servitudes, referred to in the statute here involved, must fail.' (Emphasis supplied)
The District Court of Appeal correctly held the statute involved to be constitutional but was in error in failing to find that a denial of the permit in this case can be sustained as a valid police regulation only if material adverse effect on the specified public interest is proven. The statutory rights of the appellants to dredge, fill and bulkhead the land, subject to reasonable limitations, are appellants' only present rights attributable to ownership of the submerged land itself. 15 Those rights may not be arbitrarily denied and the owners deprived of the only beneficial use of their property without compensation.
In Kass v. Lewin 16 this court held:
'The word 'property' in the Fourteenth Amendment to the U. S. Constitution includes the right to acquire, use and dispose of it for lawful purposes, and the constitution protects each of these essentials.'
In Ocean Villa Apartments, Inc. v. City of Fort Lauderdale, 17 this court sustained an attack on a zoning ordinance as applied to petitioners' property because the ordinance, in reducing the building area on the property to seventeen feet in depth, deprived the owner of its beneficial use. This court held:
In Beck v. Littlefield 18 this court stated that an ordinance which purported to prohibit the erection of any building on the property in question would clearly 'run afoul of the guaranty of due process.'
It is our view that a denial of permission to fill...
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