Askew v. Gables-By-The-Sea, Inc.

333 So. 2d 56
CourtDistrict Court of Appeal of Florida
DecidedJune 3, 1976
DocketZ-92
StatusPublished
Cited by13 cases

This text of 333 So. 2d 56 (Askew v. Gables-By-The-Sea, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Askew v. Gables-By-The-Sea, Inc., 333 So. 2d 56 (Fla. Ct. App. 1976).

Opinion

333 So.2d 56 (1976)

Reubin O'D. ASKEW, Governor of the State of Florida, et al., Appellants,
v.
GABLES-BY-THE-SEA, INC., a Florida Corporation, Appellee.

No. Z-92.

District Court of Appeal of Florida, First District.

June 3, 1976.

*57 Ross A. McVoy, Dept. of Environmental Regulation, Tallahassee, Robert L. Shevin, Atty. Gen., and Kenneth F. Hoffman, Asst. Atty. Gen., for appellants.

Marion E. Sibley of Sibley, Giblin, Levenson & Ward, Miami Beach, for appellee.

PER CURIAM.

This controversy between appellee and the State has suffered an extensive judicial journey. In entering the partial summary judgment in favor of appellee, Gables-By-The-Sea, Inc., the learned trial judge traced the trials and tribulations that appellee has suffered for more than a decade by the actions of the sovereign. We adopt as this court's opinion the trial court's Partial Summary Judgment, viz.

"... The Court has examined the pleadings of the parties and the depositions and exhibits attached of Bernard Barnes of the Department of Pollution Control; Harmon W. Shields, Executive Director of the Florida Department of Natural Resources; Joseph W. Landers, Jr., of the Florida Board of Trustees of the Internal Improvement Trust Fund; Dr. O.E. Frye, Jr., Executive Director of the Department of Game and Fresh Water Fish Commission; and Bernard E. Goods, Chief of the Regulatory Branch of the U.S. Corps of Engineers, Jacksonville District. The Court has also considered the final judgment rendered in this cause on the 10th day of September, 1970; the supplemental final judgment rendered in this cause on January 21, 1972; and the opinions and judgments in this cause rendered by the District Court of Appeal of Florida, First District; namely, Kirk, Governor of State of Florida et al. v. Gables By The Sea, Inc., 251 So.2d 880, and Askew, Governor of State of Florida et al. v. Gables By The Sea, Inc., 258 So.2d 822. Based thereon the Court finds that:

"1. In the Judgment of this Court on the 10th day of September, 1970, it was finally adjudicated: [Defendants are appellants here and Plaintiff is appellee.]

`On January 6, 1936, plaintiff acquired by purchase from the Trustees of the Internal Improvement Fund a substantial tract of bottoms in Biscayne Bay and within the City of Coral Gables. This tract extended seaward to the then established bulkhead line.
`Some time after the purchase of these bottoms, the bulkhead line was reestablished some distance seaward from its previous location.
`In 1956 plaintiff began to seek the necessary permits to dredge from the adjacent public bottoms and fill its land. Under date of May 17, 1956, the Trustees agreed to the issuance by the U.S. Corps of Engineers of a permit for this dredging. Everyone concerned seems to have regarded this as, at least, a license to plaintiff to remove the fill from the public bottoms.
`During 1957 plaintiff sought to acquire by purchase from the Trustees a parcel of bottoms consisting of the area between the bulkhead line as it had previously existed and the new bulkhead line which had been established somewhat seaward from the old line.
......
`Plaintiff filed a formal application with the Trustees, accompanied by a map which indicated the bottoms to be acquired, the areas to be filled and areas from *58 which the proposed fill was to be dredged. This map clearly indicates that the area to be filled embraced the parcel previously acquired and the proposed new acquisition.
......
`Under date of September 25, 1967, in the light of this background plaintiff purchased and paid for the second parcel of bottoms — that lying between the old and the new bulkhead lines.
......
`... prior to October 18, 1965 the City of Coral Gables approved a fill permit to plaintiff and on November 2, 1965, this permit was formally approved by the Trustees. It is also admitted that this permit was extended until December 31, 1968.
......
`The extension of the fill permit took the form of an approval by the Trustees of an extension of a permit issued by the Corps of Engineers.
......
`On May 21, 1968, the Trustees adopted a resolution prohibiting any person from thereafter dredging pursuant to any pre-existing permit unless dredging operations had already commenced. Plaintiff respected this resolution and, not having begun dredging, did not thereafter attempt to dredge under its permit.'

In that judgment it was adjudicated:

`1. The right of plaintiff under the circumstances of this case to dredge fill material from public bottoms to fill the submerged land purchased from the Trustees was an incident to the purchase of submerged land and became a vested right.
`2. This right did not extend in perpetuam and would be lost if not exercised within a reasonable time.
`3. A reasonable time does not extend beyond the expiration date of the last extension granted by the Trustees.
`4. The granting of dredge and fill permits by the Trustees served to perpetuate the rights of plaintiff for the life of such permits.
`5. The action of the Trustees in attempting to abrogate an extension of a fill permit previously granted was without lawful authority, and void.
`6. Plaintiff should not be penalized for obeying the demands of the highest officers of the State and respecting the order not to dredge.
`7. Plaintiff is entitled to dredge from the designated areas under the terms and conditions of its permit in effect on May 21, 1968, for a number of days after this judgment becomes final, and the time for appeal expires, equal to the number of days from the adoption of the above-described resolution of the Trustees to December 31, 1968.
......
`If such filling would injure the aquatic life of the vicinity to such an extent as to adversely affect the public interest, the State has the power of eminent domain to take, for just compensation, the plaintiff's property. But the State cannot, after selling submerged land to private owners, deny such owners the right to use those lands in the only way in which private ownership can be of any value.'

And the Court found:

`The plaintiff has the lawful right to dredge material from the areas indicated on the application for a dredge and fill permit and to use such material to fill its privately owned submerged land indicated on such application for a period of time consisting of 223 days beginning on the day this judgment becomes final by the expiration of the time of appeal, or the filing of the mandate of an Appellate Court affirming this judgment, whichever is the later date.'

*59 "2. The permit granted by the U.S. Army Corps of Engineers which permitted the Plaintiff to dredge and fill the land involved was not revoked and remained outstanding and valid until the date of its expiration on December 31, 1968. The Defendants, by the revocation of the state permit, were the direct cause of the expiration of the federal permit, and thus, prevented the Plaintiff from dredging and filling its property pursuant to said federal permit.

"3.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Coastal Petroleum v. Chiles
701 So. 2d 619 (District Court of Appeal of Florida, 1997)
Ventures Northwest Ltd. v. State
914 P.2d 1180 (Court of Appeals of Washington, 1996)
Ventures Northwest Ltd. Partnership v. State
914 P.2d 1180 (Court of Appeals of Washington, 1996)
City of Pompano Beach v. Yardarm Restaurant, Inc.
641 So. 2d 1377 (District Court of Appeal of Florida, 1994)
Division of Administration State Department of Transportation v. Ideal Holding Co.
480 So. 2d 243 (District Court of Appeal of Florida, 1985)
Department of Administration v. City of St. Petersburg
12 Fla. Supp. 2d 112 (Florida Circuit Courts, 1985)
Pinellas County v. Brown
420 So. 2d 308 (District Court of Appeal of Florida, 1982)
Graham v. Estuary Properties, Inc.
399 So. 2d 1374 (Supreme Court of Florida, 1981)
STATE, ETC. v. Oyster Bay Estates
384 So. 2d 891 (District Court of Appeal of Florida, 1980)
Estuary Properties, Inc. v. Askew
381 So. 2d 1126 (District Court of Appeal of Florida, 1979)
STATE, ETC. v. Gables-By-The-Sea, Inc.
374 So. 2d 582 (District Court of Appeal of Florida, 1979)
Venezia A, Inc. v. Askew
363 So. 2d 367 (District Court of Appeal of Florida, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
333 So. 2d 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/askew-v-gables-by-the-sea-inc-fladistctapp-1976.