STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD G. COLVILLE, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF NATURAL RESOURCES, ) CASE NO. 88-3143 BOARD OF TRUSTEES OF THE )

INTERNAL IMPROVEMENT TRUST FUND, )

)

Respondent, )

)

and )

) JOHN C. AND PATRICIA BROCKWAY, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on December 8, 1988 in Key Largo, Florida. The following appearances were entered:

APPEARANCES

FOR PETITIONER : Arthur E. Ballen

Qualified Representative Two South Drive

Key Largo, Florida 33037

FOR RESPONDENT : Eugene D. McCellan, Jr., Esquire

3900 Commonwealth Blvd

Tallahassee, Florida 32303

FOR INTERVENORS: Martha J. Edenfield, Esquire

2700 Blair Stone Road Tallahassee, Florida 32314

BACKGROUND

This matter began when Respondent Issued its intent to grant a quitclaim deed to Intervenors of the State of Florida's interest in certain filled, formerly submerged, lands adjacent to and waterward of Intervenors' property situated at lot 43, Block 3, Lower Matecumbe Beach, Monroe county, Florida. petitioner, an adjacent property owner, objected to Respondent's proposed action and requested a formal administrative hearing. This proceeding ensued.

At hearing, Intervenors presented the testimony of six witnesses and 11 evidentiary exhibits. Respondent presented the testimony of two witnesses. Petitioner presented testimony of two witnesses and 11 evidentiary exhibits. proposed findings of fact submitted by Intervenors and Respondent are addressed In the appendix attached to this recommended order. No proposed findings were timely submitted by Petitioner and none had been received by the undersigned at the time of the preparation of this recommended order.

Based upon all of the evidence, including the demeanor and candor of the witnesses who testified, the following findings of fact are determined:

FINDINGS OF FACT

1. On March 6, 1987, Intervenors filed with Respondent an application for a quitclaim deed for the property adjacent to and waterward of Lot 43, Block 3, Lower Matecumbe Beach, Monroe County, Florida. Intervenors are the legal owners of Lot 43, although they entered into a contract for sale of the lot with another individual which remains in full force and effect. However, no transfer of title or sale of the property has taken place since Intervenors filed their application for quitclaim deed.

   
   

2. Intervenors' application was reviewed by the Division of State Lands and determined to be complete and in compliance with the rules of Respondent and applicable statutory provisions. This determination by the Division was consistent with previous policy decisions in like matters.

   
   

3. The application included two prints of a survey by a licensed surveyor acceptable to Respondent depicting the present mean high water line, surveyed and approved in accordance with Chapter 177, Part II, Florida Statutes; showing intervenor's property ownership to the mean high water line prior to filling; and showing the location of the former mean high water line which is properly riparian to Intervenors' upland property ownership with a tie to an established accessible section corner.

   
   

4. Intervenors' application also contained:

   
   

   1. five maps, no larger than 8 1/2" x 14" in size, showing the location of the property to which a quitclaim deed is sought.

   2. the legal description and acreage of the property.

   3. an aerial photograph dated March 26, 1955 showing the land as it existed after filling.

   4. evidence of Intervenors' title to the riparian upland.

   5. affidavits of three disinterested parties evidencing the date of commencement and completion of the fill of the formerly submerged land as prior to June 11, 1957.

      
      

5. The proof establishes that the property to which Intervenors seek a quitclaim deed resulted in part from filling performed between 1949 and 1952 and in part from accretion prior to 1960. Although some changes have occurred in the shoreline configuration with the passage of time, the majority of the property was in existence on March 26, 1955, In substantially the same shape and configuration as it existed on the date of the application. All of the property is located landward of the mean high water line and is within the riparian ownership of Intervenors.

   
   

6. Petitioner has maintained that the property sought to be quitclaimed was filled as recently as 1975. Petitioner has not performed or had performed a

   mean high water survey necessary to any determination of whether materials were placed above or below the boundary line in 1975. Further, the purported dredging and filling activities depicted in photographic slides presented by Petitioner are found to memorialize the work performed by the Lower Matecumbe Beach Property Owners Association in 1975 on an existing jetty located adjacent to the southwestern boundary of the property sought to be quitclaimed. The work consisted of the dredging of a channel on the south side of the jetty. All or a majority of the resulting spoil which was deposited in the process on Intervenors lot was removed from the site by trucks. None of the spoil was placed on the beach or in the waters adjacent to Lot 43. The Association subsequently paid Respondents for removal of 1,000 cubic yards of fill from sovereign lands. The agreement by the Association to make such a payment to Respondent was reached in May, 1976.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

   
   

8. Ownership of state sovereignty lands is vested in the Board of Trustees of the Internal Improvement Trust Fund which is charged with administration, management and disposition of such lands. Section 253.03, Florida Statutes.

   The Division of State lands within the Department of Natural Resources provides all staff functions for the Board of Trustees. Section 253.002, Florida Statutes.

   
   

9. The boundary between state sovereignty lands and privately owned uplands is the mean high water line. Section 177.28, Florida Statutes. Under common law of Florida, the upland riparian owner acquires ownership of natural accretions and loses lands as a result of natural erosion. Ford v. Turner, 142 So.2d 335 (Fla. 1962). Such upland owners do not acquire title under common law to lands which are artificially filled or extended beyond the line of mean high water. Martin v. Busch, 93 Fla. 535, 112 So.274 (1927); Conoley v. Naetzker, 137 So. 2d 6 (Fla. 2nd DCA, 1962).

   
   

10. Previous legislative enactments in 1856 and 1921 divested the state of ownership of submerged lands in favor of upland riparian owners where such owners actually filled, bulkheaded or permanently improved the submerged lands. This practice of abandonment of state ownership was expressly repealed in 1957 with legislative enactment of the Bulkhead Act, chapter 57-362, Laws of Florida. However, a provision in the Act still requires the Board of Trustees of the Internal improvement Trust to quitclaim to the upland riparian owner any lands filled or added to prior to June 11, 1957. This provision is currently codified as Section 253.12(6), Florida Statutes, (1987), and reads as follows:

    
    

    Where any persona state agency, county, city or other political subdivision prior to June 11, 1957, extended or added to existing lands or islands bordering on or being in the navigable waters as defined in this section by filling in or causing to be filled in such lands, the board shall upon application therefor convey said land so filled to the riparian owner or owners of the upland so extended or added to. The consideration for such conveyance shall be the appraised value

    of said lands as they existed prior to such filling.

    
    

11. The procedures for application by a riparian owner for a quitclaim deed are codified in Rule 18-21.015, Florida Administrative code.

    
    

12. Under the common law doctrines and statutory provision noted above, one may possess ownership of lands naturally accreting to the upland property either before or after June 11, 1957. The state has no ownership interest in such property.

    
    

13. Lands above the mean high water line that were filled or added to prior to June 11, 1957 must be quitclaimed to the upland riparian owner upon application and payment of the requisite consideration. If lands above the mean high water were artificially filled or added to after June 11, 1957, those lands are state-owned.

    
    

14. When a riparian upland owner files an application for quitclaim deed under Section 253.12(6), Florida Statutes, to formerly submerged lands, the filing of the application creates the presumption that the land was artificially filled and adequacy of that application rests upon a determination of whether the lands were in existence prior to June 11, 1957, whether the lands are presently landward of the line of mean high water; and whether the applicant is the upland riparian owner.

    
    

15. The aerial photograph of March 26, 1955, depicting a land mass in substantially the same location and configuration as the property to which Intervenors seek a quitclaim deed, along with the corroborative testimony that the property was filled between 1949 and 1952, with subsequent accretion prior to 1960, adequately establishes its existence prior to June 11, 1957.

    
    

16. The property's existence landward of the mean high water line is established by the survey approved by Respondent and conducted by a licensed surveyor. Section 177.40, Florida Statutes, prohibits admissibility or use of a mean high water survey in this or judicial proceedings which has not been approved by Respondent.

    
    

17. The final issue is whether Intervenors are the upland riparian owners entitled under Section 253.12(6), Florida Statutes, and Rule 18-21.015, Florida Administrative code, to maintain an application for quitclaim deed. The statute requires the filled property to be quitclaimed "to the riparian owner or owners of the upland so extended or added to." There is no requirement that the applicant for quitclaim must also have been the upland riparian owner on or prior to the date of filling. Respondent's policy as articulated at hearing is to interpret the requirement of Rule 18-21.015(1)(b)(2)2., Florida Administrative code, that the survey show "applicant's ownership to the mean high water line prior to filling" to mean that the legal description of the applicant's property extends to the pre-fill mean high water line. Otherwise, the applicant would not be an upland riparian owner. Petitioner's advancement of the contra interpretation that the rule requires ownership by the applicant at the time of filling of the land is not persuasive, would impose an impermissible agency rule limit to the scope of Section 253.12, Florida Statutes, and must be rejected.

    
    

18. Likewise, Petitioner's argument that Intervenors, through executing a contract for sale of their property, have alienated those ownership rights essential to maintenance of this proceeding solely by themselves is rejected.

    Although the word "owner" is not defined by the statute or implementing rule, giving the language of the statute its plain and ordinary meaning will not lead to an absurd result.

    
    

19. Petitioner's proposed definition of "ownership" requires that the potential purchaser under a contract for sale participate as a co-applicant for quitclaim deed with the resultant effect of creating a co-tenancy in the quitclaimed property even though an actual sale of the upland property may never be consummated. This proposed definition is rejected.

    
    

20. There exists competent and substantial evidence supporting a determination that the property to which a quitclaim deed is sought was in existence prior to June 11, 1957; that it resulted from a combination of artificial fill and natural accretion to Intervenors' uplands ; that none of the property was artificially filled on or after June 11, 1957; that all the property is landward of the line of mean high water; and that Intervenors, as the legal owners of the riparian upland property, are entitled to the issuance of a quitclaim deed from Respondents pursuant to Section 253.12(6), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered directing the issuance of a

quitclaim deed to Intervenors as requested in the application.

DONE AND ENTERED this 6th day of February, 1989, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1989.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-3143

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Intervenors' Proposed Findings

1. Addressed.

2. Accepted, but unnecessary. 3.-6. Addressed.

7-8. Accepted but unnecessary. 9.-12. Unnecessary to result.

1. Adopted by reference.

2. Addressed.

31.-35. Adopted by reference. 36.-41. Addressed.

42.-44. Adopted by reference. Respondent's Proposed Findings 1.-7. Adopted in substance.

COPIES FURNISHED:

Martha J. Edenfield, Esq.

P.O. Box 6507

Tallahassee, FL 32314-6507

Eugene D. McClellan, Jr., Esq. Department of Natural Resources Suite 1003, Douglas Building 3900 Commonwealth Boulevard

Tallahassee, FL 32399

Arthur D. Ballen, Esq. Qualified Representative Two South Drive

Key Largo, Florida 33037

Richard G. Colville

257 Sunset Drive Islamorada, FL 33036

Tom Gardner Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Ken Plante General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Docket for Case No: 88-003143

Orders for Case No: 88-003143