IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

STEPHEN HERBITS, and 1000            NOT FINAL UNTIL TIME EXPIRES TO
VENETIAN WAY                         FILE MOTION FOR REHEARING AND
CONDOMINIUM, INC.,                   DISPOSITION THEREOF IF FILED

      Appellants,                    CASE NO. 1D15-1076
                                     CORRECTED PAGES: pg 24
v.                                   CORRECTION IS UNDERLINED IN RED
                                     MAILED: June 24, 2016
                                     BY: NMS
BOARD OF TRUSTEES OF
THE INTERNAL
IMPROVEMENT TRUST
FUND,

      Appellee.


_____________________________/

Opinion filed June 24, 2016.

An appeal from an order of the Board of Trustees of the Internal Improvement
Trust Fund.

Samuel J. Dubbin of Dubbin & Kravetz, LLP, Coral Gables; Gary K. Hunter, Jr. and
Timothy M. Riley of Hopping Green & Sams, P.A., Tallahassee, for Appellants.

Craig D. Varn, General Counsel, Sarah M. Doar, Senior Assistant General Counsel,
and Tom B. Adams, III, Assistant General Counsel, Department of Environmental
Protection, Tallahassee, for Appellee.



PER CURIAM.
      Appellants, Stephen Herbits and 1000 Venetian Way Condominium, Inc.,

appeal a Final Order of Dismissal entered by Appellee, the Board of Trustees of the

Internal Improvement Trust Fund (“Board”), that dismissed their Second Amended

Petition for Formal Administrative Proceedings (“Second Amended Petition”),

wherein they sought administrative review of the Board’s decision to approve the

City of Miami’s request for a partial modification of deed restrictions on what was

once sovereign submerged land (“SSL”). For the following reasons, we affirm.

      In their Second Amended Petition, Appellants alleged the following:

                                    Background

             In 1949, the State of Florida conveyed Watson Island and
      surrounding submerged land to the City of Miami, more particularly
      described in Deed No. 19447 . . . for no consideration, and with the
      requirement that the City could use the property for public and
      municipal purposes only, specifically excluding any conveyance to a
      private person, firm, or corporation for any private use or purpose:

            PROVIDED, HOWEVER, anything herein to the contrary
            notwithstanding, this deed is given and granted upon the
            express condition subsequent that the Grantee herein or its
            successors and assigns shall never sell or convey or lease
            the above described land or any part thereof to any private
            person, firm or corporation for any private use or purpose,
            it being the intention of this restriction that the said lands
            shall be used solely for public purposes, including
            municipal purposes and not otherwise.

            PROVIDED, FURTHER, anything herein to the contrary
            notwithstanding, this deed is given and granted upon the
            further express condition subsequent that the Grantee
            herein or its successor or assigns shall not give or grant
            any license or permit to any private person, firm or
                                          2
            corporation to construct or make by any means, any
            islands, fills, embankments, structures, buildings or other
            similar things within or upon the above described lands or
            any part thereof for any private use or purpose, as
            distinguished from any public or municipal use or purpose.

                   It is covenanted and agreed that the above
            conditions shall run with the land and any violation thereof
            shall render this deed null and void and the above-
            described lands shall, in any event, revert to the Grantors
            or their successors.

      In 2004, the Board approved a partial modification of the deed restrictions,

allowing the City of Miami (“City”) to lease the land at issue for a proposed state-

of-the-art yacht marina and mixed-use development. In 2011, the Board approved

an amended and restated partial modification, which revised the schedule and

structure for payments to the Board. This modification automatically terminated in

2012 as a result of four undischarged judgments against the developer. As for the

2014 partial modification at issue in this case, the Board described it as being

“previously approved by the Board . . . in 2004.” The modification “allow[ed] the

construction and operation of a public and private commercial marina and mixed use

waterfront development project, including any and all uses permitted under the

Ground Lease, to continue which will help the local economy and continue to

provide revenue to the state.” According to the Board, the modification “in no way

waives any regulatory requirements including but not limited to those of DEP, Army

Corp of Engineers, South Florida Water Management District, and Miami-Dade

                                         3
County Environmental Resources Management.”

      In response, Appellants filed a Petition for Formal Administrative

Proceedings with the Board, pursuant to sections 120.569 and 120.57, Florida

Statutes. Appellants alleged that the Board’s approval of the City’s request to

remove important restrictions would substantially affect them, and they requested

that the Board refer the matter to the Division of Administrative Hearings for formal

administrative proceedings and that it enter a final order denying the decision to

approve the City’s modification request.

      The Board entered an Order Dismissing Petition with Leave to Amend,

finding that the petition “fail[ed] to show that the Petitioners as third parties can

challenge a purely proprietary Board action under sections 120.569 and 120.57

Florida Statutes” and “fail[ed] to establish that the Petitioners’ substantial interests

will be affected by the Board’s action . . . .” The Board subsequently dismissed

Appellants’ First Amended Petition for Formal Administrative Proceedings as well,

determining that the amended petition was “based upon the defective premise the

land in question is [SSL],” it “[fail]ed to show that the Petitioners as third parties can

challenge this minor and purely proprietary Board action under sections 120.569,

and 120.57,” and it “fail[ed] to establish that the Petitioners’ substantial interests will

be affected by the Board’s action” granting the partial modification.

       Thereafter, Appellants filed their Second Amended Petition, the operative

                                            4
petition for purposes of this appeal. They asserted in part as follows:

              2.    The Department’s rationale [for dismissal] is without
      basis. The challenged action, a modification of the original restrictions
      concerning a deed over [SSL], is an action taken by the Board
      concerning the transfer of [SSL]. Such action is circumscribed in the
      Board’s own adopted regulations under Chapter 18-21 . . . . Therefore,
      the action challenged is subject to review under the Florida APA. The
      action is not “purely proprietary” as the Board is bound to follow its
      regulatory mandate under Chapter 18-21 . . . . Finally, Petitioners
      below detail multiple, independent, serious consequences and harms
      that will result if the action is approved. Thus, Petitioners have well-
      pled a substantial interest within the four-corners of the petition, which
      is the limit of the Department’s scope of review on a dismissal. . . .

                    Basis for Filing First Amended Petition

             ....

            5.      More importantly, Petitioners are challenging not simply
      the Board’s proprietary action, but its “administrative and management
      responsibilities” as circumscribed by its own rules, which it is bound to
      follow under the APA. R. 18-21.002(1), F.A.C. . . . The Board’s action
      here is bounded by both its proprietary and regulatory obligations.
      Specifically, Rule 18-21.004(1)(a), F.A.C., addresses the Board’s
      regulatory obligation to consider the public’s interest when making
      proprietary decisions concerning activities on sovereignty lands. . . .

In support of their assertion, Appellants cited article X, section 11 of the Florida

Constitution, section 253.12(2)(a), Florida Statutes, and Florida Administrative

Code Rule 18-21.004(1)(a), all of which pertain to SSL.



      In the Final Order of Dismissal, the Board set forth in part as follows:

              Defective Premise That The Land in Question Is [SSL]

                                          5
       The Petitioners’ Second Amended Petition again relies heavily,
if not entirely, upon various sections of Chapter 18-21 . . . and the
mistaken belief that the property in question is [SSL].

      ....

      Such arguments based upon Chapter 18-21, F.A.C. . . , however,
are not persuasive. For the arguments to be valid, the land in question
must be [SSL]. As stated under rule 18-21.002(1), F.A.C., titled “Scope
and Effective Date”:

      These rules are to implement the administrative and
      management responsibilities of the Board, the Department
      of Environmental Protection and the Department of
      Agriculture and Consumer Services regarding [SSL]. . . .

      Furthermore, as stated under rule 18-21.003(61), F.A.C.,

      “Sovereignty submerged lands” means those lands
      including but not limited to, tidal lands, islands . . . to
      which the State of Florida acquired title on March 3, 1845,
      by virtue of statehood, and which have not been heretofore
      conveyed or alienated. For the purposes of this chapter
      [SSL] shall include all submerged lands title to which is
      held by the Board. (Emphasis added).

As the Petitioners point[] out in their own words on page 6 of the
Amended Petition:

      In 1949, the State of Florida conveyed Watson Island and
      surrounding submerged land to the City of Miami more
      particularly described in Deed No. 19447 . . . .

       When Deed No. 19447 was executed and delivered to the City of
Miami in 1949, effectively conveying and alienating Watson Island and
surrounding submerged land, the property ceased to be [SSL]. The
property become conveyed land in which the State of Florida, through
deed restrictions and possibility of reverter only, held a distant
proprietary right. Therefore, the action of the Board in approving a
Partial Modification of Original Deed Restriction to Deed No. 19447,
                                  6
was not an action governed by the provisions of Chapter 18-21, F.A.C.,
which deals exclusively with the administration of [SSL]. Also, the
Board’s action did not deal with any rule making action subject to the
APA.
      This conclusion is not only supported by the F.A.C., but also the
Constitution of the State of Florida . . . . Under Article X, Section 11,
Fla. Const., “Sovereignty Lands” are described as follows:

             The title to lands under navigable waters, within the
      boundaries of the state, which have not been alienated . . .
      is held by the state . . . .

       Therefore, the Board’s decision to approve the request from the
City of Miami for a Partial Modification of Original Restriction to Deed
No. 19447 did not involve rulemaking or action under Chapter 18-21,
F.A.C., but instead was the exercise of a minor and purely propriety
right that existed because of the conveyance and alienation of Watson
Island and surrounding submerged land under Deed No. 19447 in 1949.
       Since the Board’s action falls outside of Chapter 18-21, F.A.C.,
and the Petitioners rely heavily on said rule to establish both standing
and jurisdiction, the Board must dismiss the Petitioners’ Second
Amended Petition. In doing so, the Board restates the following
concerning standing and jurisdiction.

     The Petitioners’ Allegations Fail to Implicate Administrative
                      Procedure Act Jurisdiction

       . . . (DOAH) does not, by either statutory or constitutional
scheme, acquire automatic jurisdiction through the . . . (APA) when the
Board takes action that is related to a minor and purely proprietary
interest, and does not involve rulemaking, and thus DOAH/APA
jurisdiction is not invoked. Furthermore, the Petitioners have not
alleged a single applicable chapter or rule of the Florida Administrative
Code relative to the Board’s action in this situation, or sufficiently,
alleged that the Board has exercised rule making authority in relation
to its granted authority. The property in question is no longer
“sovereign” submerged land, and is no longer owned by the State of
Florida. The Board’s only interest is a distant proprietary role
completely separate, and disconnected from any rulemaking or other
action subject to the jurisdiction of the APA.
                                   7
             ....

      Furthermore, the Petitioners’ stated basis for jurisdiction are sections of
      Chapter 18-21, F.A.C., and the belief that the property in question is
      [SSL]. These beliefs are misplaced. Thus, the Second Amended
      Petition does not contain sufficient allegations under established
      precedent or rule to implicate APA jurisdiction.

The Board further determined that the Second Amended Petition did not contain

allegations clearly demonstrating standing. It dismissed the petition with prejudice.

This appeal followed.

      “In considering the dismissal of a petition for a hearing under section 120.57,

Florida Statutes, an agency must ‘accept as true the factual allegations of the

petitions and may not consider any factual matters outside the amended

petitions.’” Save our Creeks v. State of Fla. Fish & Wildlife Conservation Comm’n,

, 130 (Fla. 1st DCA 2013) (citation omitted). Dismissal of such a

petition is reviewable de novo. 

that the Board dismissed their petition by inventing a new

legal standard that would exempt “this” SSL from the requirements of the Florida

Constitution. As this argument makes clear, the premise of Appellants’ petitions

was that the land at issue is SSL. However, as the Board determined, Appellants

alleged in all of their petitions that the State “conveyed” by deed Watson Island and

surrounding submerged land to the City in 1949. Article X, section 11 of the Florida

Constitution, which addresses “[s]overeignty lands,” provides:
                                          8
      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.

      Section 253.12, Florida Statutes (2014), which is entitled “Title to tidal lands

vested in state,” provides in part in subsection (1) that “[e]xcept submerged lands

heretofore conveyed by deed or statute, the title to all sovereignty tidal and

submerged bottom lands . . . is vested in the Board . . . .” Section 253.12(2)(a)

provides in part that “[t]he Board . . . may sell and convey such islands and

submerged lands if determined by the board to be in the public interest, upon such

prices, terms, and conditions as it sees fit.”

      Florida Administrative Code Rule 18-21.003(61) defines “SSLs” as:

      those lands including but not limited to, tidal lands, islands, sand bars,
      shallow banks, and lands waterward of the ordinary or mean high water
      line, beneath navigable fresh water or beneath tidally-influenced
      waters, to which the State of Florida acquired title on March 3, 1845,
      by virtue of statehood, and which have not been heretofore conveyed
      or alienated. For the purposes of this chapter sovereignty submerged
      lands shall include all submerged lands title to which is held by the
      Board.

(Emphasis added).

      Based upon the foregoing authorities, we agree with the Board that the land

at issue ceased being SSL when it was conveyed or deeded to the City. Appellants

cite to no authority for the proposition that land continues to be SSL if a deed

                                            9
includes use restrictions, and there has been no allegation that the Board, rather than

the City, holds title to the land at issue. Nor does the record provide any indication

that Appellants have administratively challenged rule 18-21.003(61), which

expressly includes “all submerged lands title to which is held by the Board.”

Although Appellants’ desire to administratively challenge the deed modification is

understandable, as are the dissent’s concerns regarding their ability to do so, both

Appellants and the dissent acknowledge that the land at issue was “conveyed” by

deed to the City. Yet, none of the foregoing authorities include within the SSL

definition SSL that was conveyed by a deed containing restrictions. To read those

authorities in the manner proposed by Appellants and accepted by the dissent would

entail us improperly adding words to those authorities. See Lawnwood Med. Ctr.,

Inc. v. Seeger, 

, 512 (Fla. 2008) (noting that courts are not at liberty

to add words to a statute that were not placed there by the Legislature and that the

same tenet applies equally to constitutional provisions); see also Daniels v. Fla.

Dep’t of Health, 

, 64 (Fla. 2005) (“When the statute is clear and

unambiguous, courts will not look behind the statute’s plain language for legislative

intent . . . .”); Overstreet v. State, 

, 126 (Fla. 1993) (“If the legislature

did not intend the results mandated by the statute’s plain language, then the

appropriate remedy is for it to amend the statute.”).

      Accordingly, we AFFIRM the Final Order of Dismissal.

                                            10
LEWIS and B.L. THOMAS, JJ., CONCUR; MAKAR, J., DISSENTS WITH
OPINION.




                               11
MAKAR, J., dissenting.

      At issue are modifications to an original deed conveying uplands and

sovereignty submerged lands to the City of Miami in 1949, the State of Florida

retaining a reversionary interest in the island property, which was restricted to only

public purposes. The plaintiffs seek to challenge the modifications, which now allow

extensive private uses of the property including submerged lands, but the defendant,

the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida,

dismissed their complaint with prejudice. The crux of the matter is whether the

plaintiffs have sufficiently pled a claim that entitles them to a hearing before an

administrative law judge.

      In 1919, the State deeded to the City an islet that surfaced from the dredged

sand and construction debris of a new county bridge connecting the mainland to its

barrier islands. Aptly named Causeway Island, it was later rechristened Watson

Island to honor Miami Mayor John Watson, Jr. The island is the first stop along the

bridge, renamed MacArthur Causeway in 1942, as it snakes eastward across

Biscayne Bay toward the Atlantic Ocean. Though at the time scarcely more than a

massive artificial sand bar, it eventually would become home to a number of the

area’s recreational, cultural, and commercial ventures, including the airbase of the

Goodyear blimp for almost fifty years (see Appendix A).

      The property proved to be a hot potato. In the 1940s, the City deeded the island

                                         12
back to the State, which in turn deeded it back to the City. The latter deed, signed in

1949 by Governor Fuller Warren and cabinet members, is the key document at issue

in this case. Conveyed were both the uplands of Watson Island as well as specified

adjoining submerged sovereignty lands (see Appendix B); it also placed substantial

restrictions on uses of the property, allowing public/municipal uses and prohibiting

private uses/purposes:

      PROVIDED, HOWEVER, anything herein to the contrary
      notwithstanding, this deed is given and granted upon the express
      condition subsequent that the [City] or its successors and assigns shall
      never sell or convey or lease the above described land or any part
      therefor to any private person, firm or corporation for any private
      use or purpose, it being the intention of this restriction that the said
      lands shall be used solely for public purposes, including municipal
      purposes and not otherwise.

      PROVIDED, FURTHER, anything herein to the contrary
      notwithstanding, this deed is given and granted upon the further express
      condition subsequent that the [City] or its successors or assigns shall not
      give or grant any license or permit to any private person, firm or
      corporation to construct or make by any means, any islands, fills,
      embankments, structures, buildings or other similar things within or
      upon the above described lands or any part thereof for any private use
      or purpose, as distinguished from any public or municipal use or
      purpose.

(Emphasis added). As indicated, construction of any structures, buildings, fills, and

so on for a private use or purpose was expressly prohibited. The deed contains a

reverter clause, which immediately followed these restrictions, stating: “It is

covenanted and agreed that the above conditions subsequent shall run with the land

and any violation thereof shall render this deed null and void and the above-
                                          13
described lands shall, in any event, revert to the [State] or [its] successors.”

(Emphasis added).

      Around 2004, a few years before economic hard times befell the country, the

City partnered with a private company to develop part of the island and a dozen or

so acres of the submerged lands for a mega-yacht marina, two massive hotels, and

immense space for retailers (not to mention a marine museum and a fish market).

The State agreed to modify the deed restrictions to allow this project, sharing in the

projected revenues of the venture, but delays and other setbacks shelved the project.

Almost a decade from its inception, the project—phoenix-like—rose again after the

City and Board agreed to renewed deed modifications in 2014.

      In response, a group of homeowners on a neighboring island timely filed an

administrative petition asserting that the Board’s modifications of the deed

restrictions, allowing for broad-ranging private commercial activities previously

prohibited, may be challenged administratively as affecting uses of sovereignty

submerged lands. See Fla. Admin. Code Ann. R. 18-21.004 (2016) (setting forth

“management policies, standards, and criteria” that “shall be used in determining

whether to approve, approve with conditions or modifications, or deny all requests

for activities on sovereignty submerged lands . . . .”). Plaintiffs seek administrative

remedies, but also want to create a factual record for a constitutional claim based on

the public trust doctrine, upon which an article V court can rule.

                                          14
      In its dismissal order, the Board ruled that the submerged portion of the

property was no longer sovereignty submerged lands, losing that status upon its

conveyance to the City in 1949, which the Board viewed as an alienation of its entire

sovereignty interest under article X, section 11, of the Florida Constitution

(describing “Sovereignty Lands” as the “lands under navigable waters, within the

boundaries of the state, which have not been alienated . . . .”). As such, the Board’s

approval of the modifications “was not an action governed by the provisions of

Chapter 18-21, F.A.C., which deals exclusively with the administration of

sovereignty submerged lands.” It also concluded that the deed restrictions and

possibility of reverter gave the State only “a distant proprietary right” and that the

Board’s modifications of the restrictions were a “purely proprietary function” not

subject to administrative review. Because the 2014 deed modifications were “the

exercise of a minor and purely propriety right that existed because of the conveyance

and alienation of Watson Island and surrounding submerged land” in 1949, they

were not subject to administrative review. For related reasons, the Board also

concluded that the property owners lacked standing.

      On appeal, the property owners say the 1949 conveyance of the sovereignty

submerged lands does not abdicate the Board’s responsibility to continue to treat the

submerged property as subject to the legal requirements for such lands under the

administrative code. They view the State as retaining a sufficient legal interest in the

                                          15
conveyed submerged lands to allow for their administrative challenge; to deny them

this opportunity would allow the State to convey sovereignty submerged lands,

violate restrictions placed upon them, and provide no recourse for persons or entities

adversely affected. The Board recognizes the State’s reversionary interest in the

Watson Island property, and that the Board may sue to enforce the deed restrictions

and, in extremis, take back the property. It also recognizes that proprietary decisions

may be subject to the APA and that it can be forced to comply with rules it has

promulgated by someone with standing. The Board, however, disclaims any

authority over the submerged lands conveyed via the 1949 deed. Though

acknowledging that its authority includes review of uses or projects affecting

sovereignty submerged lands (such as building docks and bridges), the Board views

the Watson Island property as retaining no sovereignty submerged lands, thereby

ending the matter.

      To begin, what property interest, if any, does the State have in Watson Island’s

submerged lands? The Board’s disclaimer of any ongoing legal interest or

enforcement authority over the submerged lands is a double-edged sword, one edge

potentially foreclosing the type of administrative challenged presented here, the

other potentially foreclosing the State’s exercise of its authority over submerged

lands held in private or non-state hands. As an initial matter, it is not clear that the

property was fully “alienated” by the 1949 deed because the State retains an interest

                                          16
in its reversion if public use restrictions are violated. Unlike property sold

unconditionally in fee simple, the conveyance here cannot be said to have entirely

alienated the State’s interest in the property due to the potential for its reversion. On

this point, it appears that the State retains an interest to some degree in submerged

state lands conveyed to private owners. For example, the Second District recently

observed that simply because state submerged lands are conveyed into private hands

does not entirely extinguish the State’s right to oversee their use, saying that “though

it is apparent the authority to control and manage submerged lands is restricted by

the public trust doctrine, we do not believe that such authority can be stripped from

the State even if the submerged land becomes privately owned.” 5F, LLC v. Dresing,

, 946 (Fla. 2d DCA 2014) (emphasis added).1 That is so even in the

“increasingly rare” situations where the “submerged land under navigable water has


1
    As the Florida Supreme Court noted over a century ago:
         A state may make limited disposition of portions of such lands, or of
         the use thereof, in the interest of the public welfare, where the rights of
         the whole people of the state as to navigation and other uses of the
         waters are not materially impaired. The states cannot abdicate general
         control over such lands and the waters thereon, since such abdication
         would be inconsistent with the implied legal duty of the states to
         preserve and control such lands and the waters thereon and the use of
         them for the public good.

State v. Gerbing, 

, 355 (Fla. 1908). This implied legal duty was “codified
in article X, section 11, of the Florida Constitution, which recites that “[t]he 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.” 5F, 

.
                                            17
been or will be dredged and filled to create upland.” 

recognized that a

“common thread” in the caselaw is “that the rights of the public are superior to those

of private landowners—whether riparian owners or submerged land owners.” 

a viable legal theory is that governmental action may, in some limited

circumstances, provide those who are substantially affected with the right to seek

administrative review by challenging activities on state submerged lands now held

by third parties. On the record presented, it appears that the conveyed submerged

lands abutting Watson Island remained submerged at the time of the plaintiffs’

petition (see Appendix B – portion of property labeled “Submerged Parcel”); at what

stage dredge and fill activities may be taking place was not known at oral argument.

And we aren’t told what uses were made of the submerged lands from 1949 until the

present day. Nonetheless, at least facially it appears that the plaintiffs have alleged

a sufficient legal theory based on the proposed change in use of the still-submerged

lands. Of course, submerged lands that are conveyed into private hands and then

improved do not necessarily transgress the public trust doctrine; the test is “if the

grant of sovereignty land to private parties is of such nature and extent as not to

substantially impair the interest of the public in the remaining lands and waters it

will not violate the inalienable trust doctrine.” Holland v. Fort Pierce Fin. & Constr.

Co., 

, 81 (Fla. 1946). Moreover, this appears to be one of those

“increasingly rare” situations where dredge and fill activities may be converting state

                                          18
submerged lands into uplands for private uses, which has become less common than

earlier in the State’s history before the environmental movement. 5F, 

.

      Turning to the main point, the 1949 grant was a very limited one, restricting

the uses of Watson Island to only public, non-private uses with a threat of reverter.

It stands to reason that if modifications to those restrictions have a significant and

direct effect on the legally-recognized interests of affected property owners, they

may be subject to some degree of administrative and ultimately judicial review. If

that is the case, whether the modifications are proprietary or regulatory comes into

play, the latter being subject to Florida’s administrative procedures act, the former

less clear in this regard. Sexton v. Bd. of Trs. of Internal Imp. Trust Fund of State of

Fla., 

, 948 (Fla. 1st DCA 2012) (Makar, J., concurring) (“While the

caselaw holds that the APA applies when the Board is acting in its regulatory

capacity, . . . it is less than clear in defining the circumstances when the exercise of

proprietary powers subjects the Board to the APA procedures.”); see State, Bd. of

Trs. of Internal Imp. Trust Fund v. Lost Tree Vill. Corp., 

, 1243 (Fla.

1st DCA 1992) (“Although the Board, acting in its proprietary capacity as owner of

sovereign submerged lands, ‘is different from other state agencies acting in a

regulatory capacity,’. . . the policies underlying the public trust doctrine do not of

themselves exempt the Board from the operation of the APA.”) (citation omitted).

                                          19
      The Board says the challenged modifications to the deed restrictions were “the

exercise of a minor and purely propriety right” and that the State’s “only interest is

a distant proprietary role completely separate, and disconnected from any

rulemaking or other action subject to the jurisdiction of the APA.” But unlike a

discrete and limited grant of an easement to allow for the construction or

maintenance of a bridge, pier, or dock over or on submerged lands, see Sexton, the

modifications of the restrictions to the original 1949 deed in this case are

qualitatively and quantitatively quite different. They do not facilitate an existing

purely proprietary project in a minor way; instead, the Board’s action in modifying

the deed restrictions is akin to a major zoning modification that could trigger

substantial impacts on the public, i.e., a regulatory action, particularly as to those

submerged lands that might be subject to dredge and fill activities not previously

authorized (presumably the submerged lands too would be subject to the deed’s use

restrictions). Thus, at this earliest stage of this proceeding, it appears that plaintiffs

have alleged a viable legal theory for challenging the modifications to the 1949 deed,

such that dismissal of plaintiffs’ administrative challenge with prejudice was

premature. Washington Cnty. v. Nw. Fla. Water Mgmt. Dist., 

, 1130

(Fla. 1st DCA 2012) (concluding that “the District incorrectly determined it lacked

jurisdiction over Appellants’ petitions because the Plan is not subject to

administrative challenge”); Ft. Myers Real Estate Holdings, LLC v. Dep’t of Bus. &

                                           20
Prof’l Reg., Div. of Pari-Mutuel Wagering, 

, 1161 (Fla. 1st DCA

2011) (reversing dismissal with prejudice based on “settled principle of

administrative law that a person whose substantial interests are determined by an

agency is entitled to some kind of hearing—either formal or informal—to challenge

the agency’s decision once the agency’s ‘free form’ process is complete”).

      Plaintiffs must also have standing. In that regard, what is alleged here is

different from mere run-of-the-mill proprietary actions on a minor scale. If deed

restrictions originally allowed only a public beach adjoining or a small, one-story

public fishing pier over submerged lands, but by deed modification years later the

property’s use was transformed into a massive private commercial project of the type

alleged, it takes little imagination to envision the potential impacts on those living

nearby. Here, the plaintiffs—who reside on adjacent Venetian Causeway a few

hundred yards directly north of the project—have alleged some of such impacts,

which are the type of special injuries that differ from those of the public generally.

See U.S. Steel Corp. v. Save Sand Key, Inc., 

(Fla. 1974).

      All this said, the limited issue presented on appeal is whether the plaintiffs are

entitled to an administrative proceeding; we are not asked to decide who wins or

loses, only whether plaintiffs get a hearing on their legal theory, keeping in mind

that at this point they have merely made factual allegations and alleged injuries.

Based on their allegations, they have sufficiently pled a preliminary basis to permit

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them to administratively challenge the Board’s modifications to the 1949 deed.




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                               APPENDIX A




“View of causeway from Goodyear Blimp,” Florida Photographic Collection.




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Appendix B




             Plaintiffs




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