Opinion
No. 1D22-895.
04-12-2023
NORTHSHORE HOLDINGS, LLC and Lavin Family Development, LLC, Appellants/Cross-Appellees, v. WALTON COUNTY, Florida, a political subdivision of the State of Florida, Appellee/Cross-Appellant.
D. Kent Safriet , Mohammad O. Jazil , Edward M. Wenger , and Michael R. Beato of Holtzman Vogel Baran Torchinsky & Josefiak, PLLC, Tallahassee, for Appellants/Cross-Appellees. Kathryn D. Valois of Pacific Legal Foundation, Palm Beach Gardens, for Amicus Curiae Pacific Legal Foundation. David A. Theriaque , S. Brent Spain , Benjamin R. Kelley of Theriaque & Spain, Tallahassee, for Appellee/Cross-Appellant. Byron D. Flagg of Byron Flagg, P.A., Gainesville, for Amicus Curiae The Surfrider Foundation.
D. Kent Safriet , Mohammad O. Jazil , Edward M. Wenger , and Michael R. Beato of Holtzman Vogel Baran Torchinsky & Josefiak, PLLC, Tallahassee, for Appellants/Cross-Appellees.
Kathryn D. Valois of Pacific Legal Foundation, Palm Beach Gardens, for Amicus Curiae Pacific Legal Foundation.
David A. Theriaque , S. Brent Spain , Benjamin R. Kelley of Theriaque & Spain, Tallahassee, for Appellee/Cross-Appellant.
Byron D. Flagg of Byron Flagg, P.A., Gainesville, for Amicus Curiae The Surfrider Foundation.
Per Curiam.
Appellants, Northshore Holdings, LLC and Lavin Family Development, LLC, appeal a Final Judgment in which the trial court denied relief in their declaratory judgment action filed against Appellee, Walton County, Florida. The County cross-appeals the trial court's denial of its motion to dismiss Appellants' action. For the reasons that follow, we find merit in the cross-appeal argument and, therefore, dismiss the appeal and vacate the Final Judgment.
In their declaratory judgment action, Appellants, beachfront property owners, sought a declaration that the Florida Supreme Court's adoption of the doctrine of customary use, which allows the public to use privately owned property under certain circumstances, in City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73 (Fla. 1974), was unconstitutional because it constituted a judicial taking and violation of due process. The County moved to dismiss, arguing in part that Appellants were seeking an improper advisory opinion because no actual and present controversy existed as to their properties. The trial court denied the motion to dismiss and ultimately ruled that it was without authority to find the customary use doctrine "as established" by the Florida Supreme Court to be unconstitutional. Appellants contend on appeal that the trial court erred in denying them relief because the Florida Supreme Court's discussion of the customary use doctrine in Tona-Rama was dicta, because the doctrine violates the United States Constitution, and because the test as set forth by the Florida Supreme Court was void for vagueness. Because we agree with the County's argument on cross-appeal that the trial court should have dismissed Appellants' action, we do not address the arguments on appeal.
Pertinent to the cross-appeal issue is the fact that in 2018, the County, acting in accordance with section 163.035, Florida Statutes, issued a Formal Notice of Intent to Affirm the Existence of Recreational Customary Use on Private Property, which included Appellants' properties, and sought a declaration that the private beachfront property within the county is subject to use by the public for various recreational purposes. Importantly, when Appellants filed their declaratory relief action, the trial court in the County's case had not made a determination as to the existence of any customary use rights upon Appellants' properties. See 163.035(3)(b)2., Fla. Stat. ("The court must determine whether the evidence presented demonstrates that the recreational customary use for the use or uses identified in the notice of intent have been ancient, reasonable, without interruption, and free from dispute."). As such, there was no bona fide, actual, and present practical need at that point for the declaration Appellants sought. See Webster v. Inch, 286 So.3d 847, 847 (Fla. 1st DCA 2019) (noting that in order to maintain an action for declaratory relief, there must be a bona fide, actual, and present practical need for the declaration). Consequently, the trial court lacked jurisdiction to render declaratory relief in Appellants' case. See Santa Rosa Cnty. v. Admin. Comm'n, Div. of Admin. Hearings, 661 So.2d 1190, 1193 (Fla. 1995) ("[A]bsent a bona fide need for a declaration based on present, ascertainable facts, the circuit court lacks jurisdiction to render declaratory relief.")
We find support for our conclusion in Blessey v. Walton County, No. 3:18cv1415/MCR/CJK, 2018 WL 4291735, at *1 (N.D. Fla. Sept. 7, 2018), where the plaintiff, also a beachfront property owner in Walton County, filed suit against the County seeking a declaration that Florida's "common law customary use doctrine" was unconstitutional under the Fifth and Fourteenth Amendments to the United States Constitution. The plaintiff insisted that the County's "assertion" of its intent to initiate the statutory procedure provided for in section 163.035 to affirm the existence of recreational customary use over the beaches within the county demonstrated a live controversy and injury. Id. at *3. In granting the County's motion to dismiss, the district court found that the County's intent to hold a public hearing and to initiate the statutory process did not deprive the plaintiff of a constitutional protection, and it noted that the "County has not completed the statutory process...." Id. It explained, "Several hoops, with room for conjecture at each step, must be cleared before the doctrine of customary use can be applied to [the plaintiff's] property," including that "the County must adopt a formal statement of intent that includes [his] property, file suit in state court, present convincing evidence to the state court of long-standing and undisputed recreational use on the property, and the state court must make several particularized findings in the County's favor." Id. at *4. The court reasoned that "[a]ddressing a challenge to the common law doctrine with no state action and no concrete or immediate threat of injury would require this Court to make a constitutional determination based on hypothetical facts." Id. Although the County has now cleared the "hoops" of adopting its formal statement of intent to apply the customary use doctrine to county beachfront properties and seeking a declaration in the trial court, the other events mentioned in Blessey had not occurred as to Appellants' properties when they filed their declaratory judgment action. Instead of showing an actual and present practical need for the declaration they sought, Appellants alleged only the possibility of legal injury on the basis of a hypothetical state of facts that are contingent and uncertain. As Appellants' counsel acknowledged during oral argument, a possibility exists that the trial court in the County's action will find that Appellants' properties do not satisfy the customary use test set forth in Tona-Rama and adopted by the Florida Legislature in section 163.035. That possibility precludes Appellants from demonstrating a real threat of immediate injury. See Apthorp v. Detzner, 162 So.3d 236, 240 (Fla. 1st DCA 2015) ("To invoke the jurisdiction of the court, [the appellant] was required to allege a present controversy based on articulated facts which demonstrate a real threat of immediate injury.").
Based upon the foregoing, we agree with the County's cross-appeal arguments that the trial court lacked jurisdiction to rule upon Appellants' declaratory relief claim and that the Final Judgment constitutes an improper advisory opinion. Accordingly, we DISMISS the appeal, VACATE the Final Judgment, and REMAND to the trial court with instructions to dismiss Appellants' amended complaint with prejudice.
DISMISSED with instructions.
Lewis, Bilbrey, and Kelsey, JJ., concur.