Zoning Practice — September 2009
Ask the Author
Here are reader questions answered by Scott L. Reichle, author of the August 2009 Zoning Practice article "Local Zoning and Water Rights."
Question from Richard Walton, AICP:
In Florida, we have a limit on number of motorized boat slips we can have. This is a state-mandated requirement due to protection of manatees. The number is based on the amount of shoreline a local government has.
In dividing up how to permit slips, I am having a little trouble understanding how ownership rights of the bottom (if any) affect the legal authority one property has versus another property with a land lease to use the bottom they do not own. We are trying to permit by-right properties along the line of the principle that single-family gets one entitlement and non-single-family gets a different entitlement. We also are trying to keep some of the slip entitlements for public lands where we can allow non-waterfront properties to get use of the water.
Do you have any input on issues to consider in this regard?
Answer from author Scott L. Reichle:
Thank you for the question. Let me premise my answer by first noting that I have limited exposure to Florida's laws specific to the issue you have raised. This being said, Florida has recognized riparian and littoral rights. For example, in Board of Trustees of the Internal Improvement Trust Fund v. Sand Key Associates, the Florida Supreme Court stated that riparian and littoral rights are constitutional and constitute a property right. The court went on to state that these rights included access to the water and the right to use the water for navigational purposes.
Your question brings into play several issues. First, as I understand it, each locality in Florida enacts a Manatee Protection Plan that addresses, among other things, boating activities and the number and locations of boating facilities. Those that live and own the land to the high-water mark have an argument that they are entitled to use their riparian rights in accordance with the applicable case law. This does not mean that they are not subject to regulations. For example, many localities will enact regulations that allow the construction of piers and other structures, but they must be built in such a manner as to minimize the negative impacts on the wetlands. I see your concern about the issue when you bring into play the fact that there are also multifamily units with shared boating facilities. Once again, this provides riparian rights to the common owners of the parcel; however, this does not guarantee that every owner should be entitled to unlimited access. And of course, as you state, you also want to include some public access. I tend to agree that you need to treat the single owner differently than the multifamily parcels as the single owners have a good argument that now allowing them to construct a pier (in accordance with the applicable regulations) would deprive them of their riparian rights.
I hope this is helpful.