With the start of hurricane season less than a month away, there is a “perfect storm” brewing. This storm, however, is not of the meteorological kind. It’s a storm that pits government and turtle-huggers against beachfront property owners. The regulators have become convinced that all beach nourishment is good, all seawalls are bad. This used to be a debatable issue on a case-by-case basis, but effective efforts by the turtle-huggers has ended all debate. Not that I have anything against sea turtles, but with a little effort and study, it may be possible to protect both the sea turtles and private property rights. Instead, with little to no notice to the affected property owners, the U.S. Fish and Wildlife Service adopted a regulation declaring most of Florida’s sandy shorelines “critical habitat” for the loggerhead sea turtle.
The significance of this action by unelected federal bureaucrats becomes apparent when one considers the fact that coastal construction regulations adopted by unelected Florida bureaucrats prohibits the construction of coastal armoring structures (seawalls, revetments, rip-rap, etc.) “in Federally-designated critical habitat for marine turtles”. While beach nourishment may be the “turtle safe” means to protect upland private property from the effects of critical erosion, beach nourishment typically is a time consuming process, involving both extensive permitting requirements and the acquisition of sufficient funds to accomplish the project.
In many cases, particularly following storm events, beach nourishment is not a practical means to immediately prevent infrastructure and residences from being lost. Even in the absence of a storm event, sea level rise will continue to jeopardize coastal properties. Additionally, as the use offshore sand sources for beach nourishment is discontinued due to environmental and sand quality concerns, the availability and cost of upland sand may make beach nourishment by trucking impractical.
Recently it was reported that the cost of hauling sand by truck is $40 to $60 per cubic yard. On the other hand, the cost of pumping sand from inlets is only $16 to $20 per cubic yard. As the competition for inland sand heats up with the number of coastal communities needing sand for their beach nourishment projects, the cost of hauling sand by truck will skyrocket. If protecting upland private property and public infrastructure by beach nourishment becomes unpractical, and the classification of our beaches as “critical habitat” for the loggerhead sea turtle prohibits protection by armoring, beachfront structures will be left with no protection.
To bring this important matter to the forefront so that appropriate legislative action may be taken before it is too late, I have submitted an abstract of this issue to the American Shore & Beach Preservation Association for presentation at their annual conference in October. a house and road damaged by severe storm related erosion
Please review my abstract at the following link and let me know what you think.
My Abstract
Whether storm induced or the effect of sea level rise, Florida’s shorelines are receding. Three-fourths of Florida’s population reside in counties along more than 1,200 miles of coastline. It has been reported that these coastal counties represent a built-environment and infrastructure whose replacement value was $2.0 trillion in 2010 and is estimated to be $3.0 trillion by 2030. The landward march of the shoreline threatens single and multi-family private residences, as well as the roads and public utilities that serve them. It also threatens the infrastructure that serves public recreational facilities along the coast. Allowing public and private investment in these improvements to become lost to the sea would cripple the State’s economy.
It has long been argued that beach nourishment is the preferred means to address the loss of uplands due to erosion; that coastal armoring will cause or accelerate erosion. However, beach nourishment typically is a time consuming process, involving both extensive permitting requirements and the acquisition of sufficient funds to accomplish the project. In many cases, particularly following storm events, beach nourishment is not a practical means to immediately prevent infrastructure and residences from being lost.
Additionally, finding an appropriate and adequate source of beach compatible sand for beach nourishment purposes is becoming increasingly difficult. Therefore, potentially coastal armoring may be the only viable option. Unbeknownst to most Florida shoreline residents and local government officials, a recent regulation of the U.S. Fish and Wildlife Service has all but eliminated coastal armoring as an option to protect upland structures. On July 10, 2014, an amendment to 50 CFR §17.95 designated significant portions of the shoreline of the State of Florida, as well as neighboring Southeast States, as “critical habitat for the Northwest Atlantic Ocean distinct population segment of the loggerhead sea turtle”.
In Florida, the construction of a seawall, rock revetment, or other rigid coastal structures below the mean high water line of the Atlantic Ocean or Gulf of Mexico, requires a State Coastal Construction Permit pursuant to the provisions of Section 161.041, Florida Statutes and the rules and regulations promulgated there under. Of particular note is Section 62B-41.0055(4), Florida Administrative Code. That rule, most recently amended in 2001, prohibits the construction of coastal armoring structures “in Federally-designated critical habitat for marine turtles”. There is no waiver or variance provision in the rule to avoid the prohibition.
Accordingly, unless circumstances allow for the construction of seawalls, revetments and the like entirely landward of the mean high water line, no State permit may be issued for the construction of rigid shore armoring to protect both private and public structures. Before the next “Big One” hits Florida, it is imperative that public sector and private property owners join forces to remove the prohibition within Section 62B-41.0055(4), Florida Administrative Code. Additionally, the same coalition of interests need to seek an amendment of 50 CFR §17.95 to provide an opportunity to protect existing structures when no other viable option is available.
The County’s Code Enforcement Special Magistrate finds the innocent purchasers to be guilty of violating the County’s “FEMA” Code even though it is undisputed that the new owners had nothing to do with creating the violations.
The County argues, and the Special Magistrate agrees, the County’s “FEMA” Code is a “strict liability” ordinance, making an innocent purchaser, who purchased the property without any notice of the violations, responsible for demolishing the ground floor improvements. Even though the information contained on the Sarasota County Property Appraiser’s webpage played an important role in inducing your buyers to purchase the property, the Special Magistrate, relying upon a Monroe County case, Monroe County v. Carter, the Special Magistrate finds that the information in the records of the County Property Appraiser should not be imputed to the County Code Enforcement office.
In other words, even though the County Building Department can use the Property Appraiser’s records as evidence of a violation, an innocent purchaser may not use the Property Appraiser’s information in their defense.
The Special Magistrate orders your buyers to demolish the ground level improvements and return the ground floor area to storage space. In so doing, your buyers will have spent approximately one-third of the purchase price on space they cannot use for living purposes.
How do you protect your future buyers from the same fate as those described herein? It is not enough to have the title work and closing performed by a lawyer who is not an expert in waterfront property law. A lawyer with expertise in this field would have known that something was wrong with the ground level improvements. In the absence of any permits of record with respect to the ground level improvements, the only way to protect purchasers from buying a potentially illegally non-conforming residence is to insist that the Sellers produce building permits for the ground level improvements.
If the Seller balks, then seek a written determination from the local government Building Official that the ground level improvements are legal. If that cannot be obtained, then either the purchase price must be adjusted to take into consideration the illegal living space and compensate the buyer for assuming the risk, or the buyer should be encouraged to terminate the contract.
It should also be noted that according to most Contracts, violation of government regulations constitutes a title defect that must be cured by the Seller upon written notice by the Buyer. If the Seller is allowed to choose the lawyer who will serve as the Title Agent, what is the practical likelihood that the Seller’s lawyer will find the illegal nature of the property and counsel the Buyer to notify the Seller of the title defect?
Buyers of waterfront property need knowledgeable lawyers whose primary objective is to protect the interests of the Buyers. And that includes title and closing services.
I love saltwater. I grew up on the New Jersey shore, just a block from the Atlantic. With the windows open and the wind blowing from the east, you could hear the ocean waves and smell the briny air. It has always been my objective to live where others go for vacation.
After law school and graduating from the University of Miami with a special law degree in Ocean and Coastal Law, the foundation was laid for my career as an attorney concentrating on Florida water law. My goal of living where others vacation was realized.
My early career, representing State and local governments, focused on environmental permitting and enforcement. When I went into private practice, joining Icard/Merrill in 1987, I specialized in marina and dock permitting, coastal construction, environmental enforcement defense, submerged lands ownership, riparian rights, and consultation with buyers of waterfront and near waterfront properties.
Since graduation from law school, there has been an explosion in federal, State, and local regulations affecting properties near the water. These regulations govern the location, size, height, design, materials, landscaping, cost, and remodeling potential of all new and existing waterfront and near waterfront properties. These regulations became so onerous, it was commonplace (and remains so) for owners to ignore them when making improvements to their properties.
To make matters worse, until relatively recent times, there was lax enforcement of the new regulations. The result is an abundance of properties with existing violations which today, when discovered, are aggressively enforced.
More and more of my time was spent representing innocent purchasers of waterfront properties who were forced to remedy violations created by prior owners, or those who purchased property only to find that due to legal matters they were unaware of, the property was unsuited to their needs. It became apparent that there was an increasing gap in the nature of legal services that buyers of waterfront property required and the scope of such services provided.
An increasing number of non-lawyers are representing buyers in the purchase of waterfront property, and those lawyers who are representing buyers are typically not performing the legal due diligence that buyers need.
The main reason this condition exists is that buyers of waterfront and near waterfront properties do not know any better, and because those that should know better are not doing a good job of educating buyers as to how to protect themselves in a transaction involving waterfront property.
As a result, it has become my “mission in life” to let buyers know “what they don’t tell them”. I will let it remain unsaid as to who “they” are, but through my website, Facebook & Twitter pages, blog, emails and other means, it will be my objective to inform buyers of waterfront and near waterfront properties of all of the questions they should be asking. They need to get these answers before committing to the purchase so that if and when they close, buyers will be satisfied that the property will be suitable for their intended purposes.
Sellers of such properties can use this information to make sure that they are able to investigate the status of their property and can be prepared to answer the questions that an informed buyer will be asking.
The lure of the sea shall continue to attract more and more paradise seekers to our shores. Assisted by the information provided by my materials, and through consultation with appropriate professionals, one’s paradise found will remain just that. Welcome to my paradise!
