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Case Study
High and Dry Boats and Residents in Ponce Inlet: A Waterfront Property Owner Goes to Court to Enforce Florida’s Growth Management Act and Invalidate a Municipal Referendum Prohibiting a Dry Stack

Location
Ponce Inlet, Volusia County, Florida (northeast Florida)

Timeframe
2004-present

Summary
As a "sport port," Ponce Inlet relies on recreational boating to support its Working Waterfront. In order to diversify his commercial enterprise and maintain the recreational boating industry, a private property owner sought to build a "dry stack" to accommodate additional boats on waterfront land in Ponce Inlet. Local residents vehemently opposed construction of the dry stack, culminating in a successful public referendum amending the town charter to prohibit dry stacks as a land use on the property. Subsequently, the property owner initiated litigation that raised the question of whether such a referendum is valid under Florida law when it applies to a single parcel of land. The litigation led the Seventh Judicial Circuit Court to rule that the referendum was not valid due to language in Florida's Growth Management Act that prohibited referenda on such issues when it applies to five or fewer parcels of land. Although the property owner has yet to build the dry stack, litigation in this instance successfully cleared the way for a land use that is beneficial to working waterfronts.

Transferability
Transferability depends on the nature of growth management legislation in other states, but the dispute surrounding the dry stack illustrates a successful example of using litigation to encourage and/or protect land uses that are beneficial to the continued viability of working waterfronts.

Best Practices
Emphasize policies that encourage and facilitate marine-industrial-related development within recreational working waterfronts. Also, although potentially costly and time-consuming, the use of litigation can be an effective last resort.

Full Case Study Description
Background
Ponce Inlet, on Florida's East Coast near Daytona Beach, is an enclave of maritime commercial and industrial uses surrounded by a largely single family neighborhood. The immediate deepwater access Ponce Inlet provides to the Atlantic Ocean makes it an important component of industrial and commercial maritime geography in northeast Florida. As a "sport port," Ponce Inlet depends on the recreational vessels it services. In 2004, a working waterfront property owner began planning for a development that would include expanding vessel access to his services by building a dry stack storage facility for boats ("dry stack") on upland property within the maritime commercial zoning district. A dry stack can take many forms, but it is essentially a structure housing boat racks where boats can be stacked on top of one another for storage. Dry stacks can benefit both boat owners, by providing protection from the elements and increased security for boats, and waterfront property owners who build such structures on their property. The property owner in this case sought to build a dry stack to diversify his revenue stream in order to maintain his industrial maritime assets, and anticipated that the vessels housed in the dry stack would augment the industrial and commercial deepwater access facilities he provided (boatworks and a haulout).

Challenges/Issues
Before 2008, zoning for the property owner's land prohibited the planned dry stack. However, by engaging in the process required by Florida’s Growth Management Act (and after years of working on plans in conjunction with the property owner), the Town began to take steps to pass an ordinance effectively discarding this prohibition. After progressing to the latter stages of the process, the proposed ordinance was submitted to the Florida Department of Community Affairs and thereafter was ready for approval by the Town. The Town's residents, however, vocally opposed the dry stack, arguing that it was incompatible with the community character and would create traffic congestion in the surrounding single-family residential neighborhoods. This opposition culminated in the passage of a referendum to amend the town charter and prohibit dry stacks on the owner's property. The referendum elevated the dry stack restriction to the status of immutable charter provision.

Actions, Approaches, and Policy Framework/Impacts
In response to the referendum and the Town's actions, the owner of the working waterfront property brought suit and, in 2010, the Seventh Judicial Circuit Court of Florida overturned the charter amendment. The Seventh Circuit Court found that the charter amendment violated Florida's Growth Management Act. Specifically, the Court found that initiating land use legislation and comprehensive planning by a referendum like the one passed in Ponce Inlet violated the Act because the referendum affected fewer than five parcels of land and the Act (particularly section 163.3167(12)) prohibited local initiatives or referenda in regard to development orders affecting five or fewer parcels of land. This 2010 court ruling was affirmed on appeal in early 2011, and in 2012 the Florida Supreme Court denied a request to hear the case.

Next Steps
Although related litigation continues and the property owner has yet to build a dry stack on the property, the Court's enforcement of the Growth Management Act paved the way for such a structure. Ongoing litigation consists of the Town's appeal of a more recent ruling by the same Seventh Circuit Court. This ruling found that the Town's actions amounted to both an unconstitutional taking of the property and a violation of the Bert J. Harris Act, which allows for compensation to owners of property "inordinately burdened" by governmental action. Due to the Town's appeal of the case, the Town Council significantly raised property taxes in Ponce Inlet for the 2012-2013 fiscal year in order to pay for attorney’s fees anticipated to stem from the dispute. Moreover, indications show that the property owner will seek, and could secure, up to $55 million in damages from the Town.

Key Partners
Pacetta, L.L.C.

Contacts

C. Allen Watts, Attorney for Pacetta L.L.C., Cobb Cole, P.A., Allen.Watts@CobbCole.com

Michael J. Woods, Attorney for Pacetta L.L.C, Cobb Cole, P.A., Michael.Woods@Cobbcole.com

Thomas, T. Ankersen, Legal Skills Professor and Director, Conservation Clinic, University of Florida College of Law, ankersen@law.ufl.edu

Additional Information
Pacetti Preserve (website devoted to the working waterfront property owned by Pacetta L.L.C.): http://pacettipreserve.webs.com/

References
2010 Seventh Judicial Circuit Court of Florida, Ruling Invalidating the 2008 Referendum: Pacetta, L.L.C. v. Citizens for Property Rights, Inc., Case No. 2008 32613- CICI (Florida 7th Cir. Mar. 18, 2010).

2011 Fifth District Court of Appeal of Florida, Ruling Affirming the 2010 Seventh Judicial Circuit Court of Florida Ruling: Town of Ponce Inlet v. Pacetta L.L.C., 63 So. 3d 840 (Fla. 5th DCA 2011).

Seventh Judicial Circuit Court of Florida Ruling that Finds Ponce Inlet's Actions were Unconstitutional and Require the Town to Compensate the Property Owner Under the Bert J. Harris Jr. Act: Pacetta, L.L.C. v. Ponce Inlet, Case. No. 2010-31696-CICI (Florida 7th Cir. Apr. 20, 2012).

Legislation Prohibiting Local Initiatives or Referenda Regarding Development Orders Affecting Five or Fewer Parcels of Land: Florida Statute § 163.3167(12) (2010). Also, note that Florida Statute 163.3167(12) has since been recodified at Florida Statute § 163.3167(8) (2012), and now the prohibition of initiatives and referenda applies to any development order.

Bert J. Harris, Jr., Private Property Rights Protection Act, Florida Statute § 70.001 (2012).

Last updated 25-Mar-13





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Region
  • Southeast
Geographic Scope
  • Town
  • Medium (20,000 - 65,000)
  • Suburban (500-2,000 people per square mile)
Governance Structure
  • Home Rule
Issues
  • Loss of commercial and/or recreational access and associated user conflicts
  • Economic development
  • Impacts on tourism industry
Tools Waterfront Uses
  • Marina/drystack
Digital Coast Snapshots
Flood Exposure
Wetland Benefits
Coastal & Maritime Jobs