"AN OUT AND OUT PLAN OF EXTORTION"

"AN OUT AND OUT PLAN OF EXTORTION" 

As we roll in to July, it has not been widely publicized but a new set of amendments to the Martin County Comprehensive Plan are set to go in to effect later this month.  These amendments are numerous, and will eventually prove shocking and troublesome to many residents of Martin County.  

For those having the patience to sit, read through and understand all these amendments it becomes clear these latest changes are not part of a coherent “plan” for Martin County.  A “plan” would clearly lay out the big picture with regard to how residents want Martin County to evolve.  The bulk of these amendments do not address big picture items.  Rather, they are specific new local governmental regulations which are being improperly injected in to a “planning” document..  What is the difference you ask?  It’s simple, local ordinances and/or regulations are the method by which the “plan” is implemented.  Logically this makes sense since we want the process of changing the “plan” to take longer so we don’t change the  “plan” on a regular basis.  To the contrary, we DO want the ability to change regulations and ordinances in a timely manner because we may, from time to time, stumble upon better or more appropriate ways to implement our “plan”.

That having been said, there is only one motivation for placing specific  regulations in the “plan” where they don’t belong.  That motivation is………….wait for it………………to make it as difficult as possible to undo the continuing and unabashed assault upon the private property rights of the citizens of Martin County. 

For instance, one of the more objectionable provisions in the amendments is laid out in Policy 8.1C.1(1), providing for the creation of a new seventy five foot (75’) shoreline protection zone (SPZ).   This new 75 foot SPZ is, or will now be, required for “all new development”.  Thus, as of the effective date in July, “no construction” will be permitted in Martin County within 75 feet of the waterline on any waterfront property within the County.   In other words, in Martin County no waterfront real estate owner will be permitted to make any use of a 75 foot wide strip of land which abuts the water.  There is no scientific justification cited in the "plan" for this regulation, rather, the 75 foot SPZ is premised upon a generalization and presumption "that of course a 75 foot buffer will help water quality". 

This type of regulation, which denies a limited group of property owners the right to use their property is not new by any means in Martin County.  It is simply a perpetuation of the problematic mindset which all to often goes unchallenged because citizens believe a burdensome regulation will only affect someone else.  After all, why would any voter object when there is a governmentally identified "public purpose" that is being advanced solely by burdening a small minority of property owners?     

            Looking at it  purely from a fairness perspective I think we would all agree if there is some truly legitimate “public purpose” to the community, the cost or burden of achieving that"public purpose' should be borne by the entire community, not just by a small minority of property owners. So for instance, (leaving aside the issue of 75 foot SPZ being improperly injected in a planning document) if there truly is a “public purpose” to the community to be achieved in enacting a 75 foot SPZ, then Martin County should pay all waterfront property owners for taking their 75 foot strip of land.  To be fair, Martin County should then turn around  and assess all County residents their fair share of the cost of buying the land needed to achieve this "public purpose".  

This type of governmental regulation which takes property without providing just compensation violates the United States Constitution’s Fifth Amendment’s Takings Clause which states: “nor shall private property be taken for public use without just compensation.”

Uncompensated regulatory takings of private property have become an immense problem not just in Martin County but all across the nation.  This, notwithstanding the fact the US Supreme Court has recognized it is inappropriate for governmental regulation to act as a substitute for the power of eminent domain, calling it an“out and out plan of extortion” 

With any luck however, the tide many be turning on uncompensated regulatory takings.  There is currently pending before the US Supreme Court the case of Common Sense Alliance v. San Juan County which is a case from San Juan County in Washington State.  The most interesting factor in Common Sense Alliance  is that the unlawful regulation which precipitated this case is eerily similar to the 75 foot SPZ in Martin County.    

As is the case in Martin County, San Juan County’s “growth management approach" to regulating land-uses adjacent to environmentally sensitive lands relies almost exclusively on presumptions and generalizations. 

In 2012, San Juan County enacted a regulation stating that as condition of obtaining local government approval, a waterfront property owner must dedicate a portion of their property as an on-site conservation area.  So, just as with Martin County’s 75 foot SPZ, San Juan County shoreline property owners are required to set aside “water quality buffers” as a condition of development.   Again similar to the 75 foot SPZ in Martin County, San Juan’s “water quality buffers” are not based on any harm the proposed land use itself might cause, but based on the county’s general efforts to reduce pollutants and improve water quality.   

            The San Juan regulation was challenged as a taking without just compensation by a local property owners’ association called the Common Sense Alliance. Unfortunately, at each level the Washington state courts ignored the Fifth Amendment and sided with San Juan County finding the ordinance was permissible because it was a generally applicable ordinance instead of a case specific  regulation.  Because the Washington State courts ignored well established federal precedent with regard to the federal Takings Clause, the case has been appealed to the United States Supreme Court.

The Washington State courts logic flies in the face of several U.S Supreme Court decisions, such as Nollan v. California Coastal Commission and Dolan v. City of Tigard, which  hold the government may only demand property from a permit applicant when necessary to mitigate a harm that the proposed project would cause.  Put another way, permit conditions are legal only when they mitigate identifiable development impacts caused by that permit applicant. Permit conditions cannot be imposed to cure problems not created by the permit applicant, or be disproportionate to the impact.

In 2013, following along the rationale of Nollan and Dolan, the Supreme Court said in Koontz v. St. Johns River Water Management District that government is forbidden from pressuring citizens into forfeiting their constitutional rights by coercively withholding benefits (i.e., giving up property to obtain a permit).

            With any luck the Supreme Court will grant review to Common Sense Alliance v. San Juan County, and there is hope the case could be heard by the Court before the end of 2016, so perhaps by 2017 private property rights in Martin County and across the country can begin to be restored as the Constitution intended..   

LICENSED CAPTAIN OR NOT?

LICENSED CAPTAIN OR NOT?

I recently received a call from a long time marine business client looking for some help resolving a problem that had arisen regarding the need for a licensed captain.

For the past several years, this particular client has operated a camp for kids with cancer at his waterfront property.  The camp is free for all children who are referred through a particular well known local non profit.   The entire cost of the camp is underwritten by this particular client so campers pay nothing. 

Not surprisingly, one of the favorite activities for the kids is going on their daily boat trip.  Trips vary each day taking campers fishing, water skiing, eco tours, trips to a waterfront restaurant for lunch, etc.  These boat trips have always been conducted by volunteer (but very experienced) boat operators. 

Based upon the outstanding feedback received from camp attendees and their parents, my client decided this year he would offer a similar summer camp for local kids.  This summer camp however, includes a minimal fee to cover expenses for the week.  My client arranged to use the exact same experienced volunteer boat operators whom he used for his free camp, but was told by his insurer they would not issue an insurance policy unless licensed captains were operating the boats taking campers out on their daily boat trips.

His question of course, was why do I need a licensed captain for my summer camp when I never needed one before.

I must admit I have never encountered an insurance company refusing to issue an insurance policy for not using licensed captains, but as a business lawyer in an admiralty and maritime firm, every year I do get the same basic question from at least a couple of my clients, that being: am I required to have a licensed captain operating my boat?

The Coast Guard provides a very good and detailed explanation of when a licensed captain is required.   

Under Coast Guard rules, a licensed captain is required for all charter operations.  Charter boats are referred to as uninspected passenger vessels (UPV).   Coast Guard regulations make it illegal for a UPV to engage in “passenger for hire” operations without a Coast Guard licensed captain.  

A passenger for hire is a “passenger for whom a consideration is contributed as a condition of carriage whether directly or indirectly flowing to the owner, charterer, operator, agent, or any other person interested in the vessel is a passenger for hire.”  Basically, anyone who is required to contribute something to get on the boat.

Thus, in my client's case I had to break him the bad news.  Coast Guard regulations demanded he get licensed captains to operate the boats for summer camp because attendees were required to pay a fee to attend camp.  Conversely, since attendees at his kids with cancer camp were not required to pay anything to attend, this would be classified as a recreational excursion and volunteer boat operators were acceptable (I’ll leave for another day a discussion of the propriety of volunteer boat operators from a boating accident and boating injury perspective).

Aside from the importance of the question for my client, locals up and down the east coast need to understand this is an important issue for every weekend warrior. 

It's no secret the Coast Guard has been cracking down up and down the east coast on what they perceive to be unlawful charter boats.  It is not uncommon for a small center console type boat with several individuals aboard heading in from a day of fishing to be stopped by the Coast Guard.  Questions usually begin with an eye towards a safety check, but then quickly transition in to questioning the vessel operator and passengers separately regarding how the voyage was financed.  

In fact, there appear to be instances where the Coast Guard has determined an illegal charter to exist where a boat owner basically said to one of his buddies “Hey Joe, if you pay for half the fuel, food and drinks we can go out trolling for dolphin”.  The logic presumably being that Joe’s buddy felt he was required  to pay for half the fuel, food or drinks to go fishing.  Illegal charters can subject a vessel operator to criminal and civil liability of up to $40,000.00 per violation. 

Given the high degree of confusion surrounding the issue, the Coast Guard has published guidance specifically stating it is not an illegal charter when passengers freely and voluntarily contribute to the voyage.  Thus, for anyone who fishes recreationally, the lesson to be learned is if your fishing buddies don't feel they are freely and voluntarily sharing the expenses of the fishing trip, an otherwise fun day of fishing could end up as a very costly nightmare.

BOAT WAKE LIABILITY

BOAT WAKE LIABILITY

While up in north Florida this past weekend, my in-laws were hosting a party at their home which sits on one of the larger rivers up that way.  Saturday was the first nice day of the week, and all the crazies were on the water early.

As I was standing on the river bank with some family friends eating hot dogs, we watched in horror as an exceedingly large sport cruiser passed the property going way too fast.  As you can imagine this boat which belonged in the gulf, not the river, threw up a gigantic wake in comparison to the minimal wakes created by the little “go-fast” boats which usually populate the river.  This particular wake picked up my father-in-laws floating dock and deposited it on a tree branch hanging over water.  The local real estate attorney who happened to be eating hot dogs with me, piped up asking if boats on the river could be held liable for damage caused by their wakes.  He then proceeded to tell me his tale of woe about one of his clients trying to sell a house on the river with boathouse and dock having suffered significant damage from similar large boat wakes. 

The short answer I gave him was yes, all boats (including jet skis) are responsible for any damage caused by their wakes, be it personal injuries or property damage.  Our firm has litigated several of these boat wake cases, but thus far they have always involved personal injuries, not property damage.   

That having been said, we find normally there are two big challenges presented in boat wake cases.  First, there is frequently a problem identifying the owner and/or operator of the vessel who created the damaging boat wake.  The second major issue that arises is that it is often difficult to prove the damage (personal or property) in question was caused by the excessive wake rather than being a pre-existing condition.   

As more and more boats hit the water, more and more people are operating boats without the requisite skill and experience needed for the protection of everyone on the water.  As a result, it would seem boat wake cases are only going to continue to become more prevalent as the years go on.   If you don’t want to find yourself on the wrong end of a boat wake case, go the extra step and make sure you are a conscientious and courteous boat operator.   Competent boat operators are something we can never have enough of.

WHERE IS FLORIDA’S HOMEOWNERS’ BILL OF RIGHTS?

WHERE IS FLORIDA’S HOMEOWNERS’ BILL OF RIGHTS?

Momentum is building around the nation to finally say enough is enough when it comes to overly intrusive governmental regulations.  More and more citizens are becoming aware of the fact that almost invariably each new, well intentioned governmental regulation comes with far reaching unintended consequences.  Not only do these unintended consequences usually strip away property rights, but the accumulation of the unintended consequences over time cause a financial drag on communities.

Most recently, two legislators in Wisconsin rolled out their “Homeowners Bill of Rights”.  The stated intent of their legislation is to protect homeowners from the “creep of overbearing government at all levels”.  Citing studies indicating nearly 25% of the price of a new home is directly attributable to governmental regulation; the legislation seeks to significantly reduce housing costs, which will in turn lead to greater home ownership and a more invested community.  The Wisconsin Homeowners' Bill of Rights includes provisions to:

1) Control property taxes
2) Increase broadband access
3) Make the supply and delivery system for propane affordable 
4) Provide property owners additional protections from "takings" 
5) Reform unreasonable regulations that threaten property rights
6) Reduce regulatory barriers for home buyers
7) Protect your "right to fly the flag"
8) Require a warrant based on probable cause for any search of a property
9) Broaden the concept of grandfathering
10) Inject a private property rights element into the Smart Growth program

Any such bill would obviously need to tweaked a bit to conform to Florida’s peculiarities.  But wouldn’t it be nice to see our legislators in Tallahassee taking concrete steps to proactively begin reigning in overzealous governmental entities, protecting property rights, encouraging families to become homeowners and fostering the American Dream?

FLORIDA RIPARIAN RIGHTS ISSUES

FLORIDA RIPARIAN RIGHTS ISSUES

Waterfront property in Florida is very desirable, be it for boating access or an incredible view of the water.  Despite the sometimes exorbitant price paid for a waterfront piece, I am always amazed at how many prospective purchasers fail to investigate the potential legal pitfalls that come along with owning waterfront property.  In far too many instances six months or a year after closing, buyers will first become aware of an issue involving the location of a dock or with their view of the water being blocked.  Such issues involve what are known as riparian rights.  Riparian rights disputes come in many different forms and frequently result in costly litigation between neighbors.  It therefore goes without saying just how important it is for potential purchasers to investigate possible riparian rights issues before they buy waterfront property. 

Who has riparian rights?

Title to all non-deeded submerged land in Florida rests with the State of Florida, and is held in trust for the public.  This is known as “the Public Trust Doctrine”, and is codified in Article X, section 11, of the Florida Constitution.  The State of Florida therefore owns the submerged land water ward of the ordinary high water mark. 

In order to possess riparian rights, an individual must own upland property which extends to the ordinary high water mark.  Riparian rights extend water ward from the ordinary high water mark. 

Thus, a conveyance of uplands bounded by navigable waters carries riparian rights in the adjacent waters.  These riparian rights are derived from both common law, and the Florida Statutes.

What are riparian rights?

Riparian rights are those rights incidental to ownership of land contiguous to and abutting navigable waterways.   Riparian rights include the right of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law (right to view being perhaps the most contentious).

Riparian rights convey no title to the submerged lands beneath the waters and therefore are not “real property”.  Riparian rights are rights to use the water and nothing more. Riparian rights are merely a preferred right of purchase, and do not convey any title.

Riparian rights are not owned by the riparian landowner, they are an appurtenance to, and inseparable from, the riparian land.   Riparian rights may only be severed from the uplands by an "express bilateral agreement to do so."   Thus, any deed conveying riparian uplands carries riparian rights unless those rights are expressly reserved.

How are riparian rights delineated?

Some fifty years ago, in Hayes v. Bowman the Florida Supreme Court declared:

“We therefore prescribe the rule that in any given case the riparian rights of an

upland owner must be preserved over an area "as near an practicable" in the

direction of the Channel so as to distribute equitably the submerged lands

between the upland and the Channel. In making such "equitable distribution"

the Court necessarily must give due consideration to the lay of the upland shore

line, the direction of the Channel and the co-relative rights of adjoining

upland owners.”

In other words, when riparian rights issues are presented to a Court for resolution the main goal is to make certain each neighbor receives “an equal piece of the pie”.

Conclusion

Due to the multitude of issues that can arise, this blog is not intended as legal advice or to be a comprehensive discussion of Florida riparian rights law.  Rather this blog is just a general outline of the concepts and key elements of riparian rights law that are likely to command attention.  If you are looking at purchasing waterfront property or are confronted with a riparian rights problem, please do not hesitate to contact me to discuss the specifics of your case.

U.S. Army Corps of Engineers; Masters of Disasters!

U.S. Army Corps of Engineers; Masters of Disasters!

Well, they’re at it again!  The U.S  Army Corps of Engineers (Corps) is about to get sued for turning a blind eye to the destruction of endangered corals in south Florida. A coalition of environmental groups cite a report from the National Marine Fisheries Service (NMFS) finding the Corps vastly underestimated the extent of sedimentation from the recent Port of Miami dredge project.   The NMFS report indicates the Port of Miami dredging buried two hundred football fields of endangered corals, killing 93% of those corals near the dredge area.  Now, rather than demanding updated and accurate information which takes in to account the failed Port of Miami project the Corps is about to issue new permits to dredge Port Everglades based on the exact same old, inaccurate information which was relied on to obtain the Port of Miami permits.

Sound familiar?  It should if you live in Martin County.  For the past 50+ years, the Corps has been the main culprit allowing freshwater discharges from Lake Okeechobee and the c-44 canal to pollute and kill the St. Lucie River. 

Just do a Google search for lawsuits against the Corps, and you will quickly see the Corps is being sued in just about every state for causing, or being complicit in, some form of environmental damage.

               How is it that the federal government in the form of the Corps, can be so intimately involved in so many projects around the country that wreak so much environmental havoc on the individual states?  No citizen or corporate entity or state for that matter, could ever get away anything which begins to approach the level of environmental damage inflicted by the Corps.  

The overly simplified answer is that government has become way too big.  There are way too many laws on the books which result in too many conflicts at too many different levels.  There is no “institutional control”, as evidenced by the troubling problems at the Veterans Administration. 

While it is unfortunate, until there are systemic changes to the structure of government which can ensure “institutional control”,  citizen suits will remain as the best and only method of reigning in environmental abuse by the government.  

Private property rights are different 240 years later

In 1776 private property rights were one of the founding principles of our nation. They were one of the freedoms that set our nation apart from the rest of the world. During the time of the Declaration of Independence citizens had the unalienable right to acquire, possess, protect and dispose of property. One of the purposes of our early government was to protect those unalienable private property rights.

            Fast forward 240 years to 2016, and the idea of unalienable private property rights has been turned on its ear!   Today’s mentality is not that the government must protect our property rights at all costs.  Rather, in today’s world any rights to property that a person has may be regulated, limited or revoked by government in order to satisfy something which the government tells us is a “public purpose.”

            Every day I read at least one article from somewhere in the United States where some governmental body is commandeering  the private property of the citizens it is supposed to be serving, all in the name of a “public purpose”.

            For instance, today it was an article bemoaning the fact Congress can't reign in EPA's assault on property rights with the new "waters of the United States" rules.  Yesterday it was an article about municipalities seizing beach front property for a "public purpose".  Before that it was an article detailing how the Dallas City Council was removing a small business owner from his own private property where had operated his business for 30 years.  

It is happening here in Martin County as well.  Sometime this summer the Martin County Board of County Commissioners is poised to approve a set of changes to the Martin County Comprehensive Plan which will further erode the private property rights of our citizens under the guise of furthering a “public purpose” (or as the catch phrase goes in Martin County, “maintaining our quality of life”).

Unless you are one of the unlucky few who are adversely affected by the “public purpose” du jour, most of us in this crazy hectic world we live in simply accept government’s spin as to why we should support a further erosion of our property rights.  We nod out heads in agreement, feeling content we are selflessly supporting a good and altruistic cause.  We rationalize the “good” being done thinking it won’t really affect that many of our neighbors or it’s not so bad to burden a few for the good of the many.

Then………..one day……….out of the blue………..WE become one of those adversely affected by a good and noble “public purpose” getting cross ways with the government.  Then, and only then, do we become indignant with a government trying to separate us from our property rights.  I can’t tell you how many times I’ve heard “we have property rights in this country how can the government get away with this!” or “since when does the government have the right to take my private property?”  

This seems to be the rub with property rights.  In today’s society the mindset is as long as it doesn’t affect me, I don’t really care what the government does.  I know far too many highly educated, kind and compassionate folks who, for whatever reason, cannot bring themselves to honestly ask the question “how would I like it if I was subjected to this particular governmental burden?”  If they ever did ask the question, and honestly answer it I surmise they would not be so complacent in their acceptance of these supposed good and noble causes. 

Absent a societal shift in the public’s expectations of government, there is no reason to believe the governmental property rights grab will stop any time soon.  The further away we move from the roots of our colonial heritage, the closer we get to a more feudalistic system where the sovereign (ie. government) controls all the land it surveys.  With good reason, colonial America rejected feudalism.  Perhaps we are coming full circle.  I hear Mars will available for colonization by 2020!