Stephen Herbits, and 1000 Venetian Way etc. v. Board Of Trustees Of The Internal etc., 195 So. 3d 1149

Background

In 1949 the State deeded Watson Island and adjoining submerged land to the City of Miami with express deed restrictions limiting use to public/municipal purposes and a reverter if restrictions were violated.
The Board of Trustees later approved partial modifications (2004, 2011, 2014) allowing private commercial uses (yacht marina, mixed-use development); the 2014 modification renewed such permissions.
Neighbors (Herbits and 1000 Venetian Way Condominium) filed administrative petitions challenging the 2014 modification under the Florida Administrative Procedure Act (APA), claiming the lands remain subject to sovereignty submerged lands (SSL) rules and that their substantial interests were affected.
The Board dismissed the petitions (with leave to amend initially, then with prejudice) holding the land ceased being SSL when conveyed in 1949, that its action was a minor/proprietary act not governed by Chapter 18-21 or the APA, and that petitioners lacked standing to invoke APA/DOAH review.
The district court affirmed, accepting the Board’s interpretation that SSL status requires that title remain vested in the Board and that deed-restricted but conveyed lands are not within Chapter 18-21’s scope.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the modified land remains subject to SSL rules and Chapter 18-21	The 1949 deed’s reverter and restrictions leave a sufficient state interest so the land remains subject to SSL management and APA review	1949 conveyance alienated SSL; Chapter 18-21 applies only to lands title-held by the Board, so this is conveyed private property and a proprietary action	Court held land is not SSL once conveyed; Chapter 18-21 does not govern this modification
Whether the Board’s deed-modification is regulatory (APA-reviewable) or purely proprietary	Modification affects public interests and is functionally regulatory given scope and potential impacts; thus APA applies	The action was a minor, purely proprietary exercise of Board’s distant proprietary interest, not rulemaking; APA/DOAH jurisdiction not triggered	Court held the action was proprietary and not subject to APA/DOAH jurisdiction
Whether petitioners pleaded standing/substantial interests to obtain an administrative hearing	Petitioners allege concrete neighborhood harms from the conversion to private commercial use, satisfying standing to challenge the modification	Petitioners failed to show they are substantially affected; their claims rest on the mistaken premise that land remains SSL	Court held petitioners failed to demonstrate APA standing and dismissed with prejudice
Whether the court may read deed restrictions into SSL definitions to preserve APA review	Plaintiffs: reading is necessary to avoid leaving no administrative remedy and to effectuate public trust limitations	Board: courts cannot add words to statutes/rules; SSL definition clearly requires title held by Board, so no expansion	Court refused to rewrite statutes/rules and declined to extend SSL definition to conveyed, deed-restricted land

Key Cases Cited

Save Our Creeks v. State of Fla. Fish & Wildlife Conservation Comm’n, 112 So.3d 128 (Fla. 1st DCA 2013) (standard for reviewing agency dismissal of petitions under section 120.57)
Lawnwood Med. Ctr., Inc. v. Seeger, 990 So.2d 503 (Fla. 2008) (courts cannot add words to statutes)
Daniels v. Fla. Dep’t of Health, 898 So.2d 61 (Fla. 2005) (when statute is clear, courts do not look behind plain language)
Overstreet v. State, 629 So.2d 125 (Fla. 1993) (statutory text controls where unambiguous)
5F, LLC v. Dresing, 142 So.3d 936 (Fla. 2d DCA 2014) (state oversight of submerged lands can persist after conveyance; public rights remain superior)
Sexton v. Bd. of Trs. of Internal Imp. Trust Fund of State of Fla., 101 So.3d 946 (Fla. 1st DCA 2012) (distinction between Board’s regulatory and proprietary actions under APA)
Lost Tree Vill. Corp. v. Bd. of Trs. of Internal Imp. Trust Fund, 600 So.2d 1240 (Fla. 1st DCA 1992) (policies underlying public trust doctrine do not automatically exempt Board from APA)
Washington Cnty. v. Nw. Fla. Water Mgmt. Dist., 85 So.3d 1127 (Fla. 1st DCA 2012) (agency dismissal improper where administrative challenge is arguably within reviewable scope)
Ft. Myers Real Estate Holdings, LLC v. Dept. of Bus. & Prof’l Reg., 53 So.3d 1158 (Fla. 1st DCA 2011) (persons whose substantial interests are determined by an agency are entitled to a hearing)
U.S. Steel Corp. v. Save Sand Key, Inc., 303 So.2d 9 (Fla. 1974) (recognition of special injuries distinct from general public)
Holland v. Fort Pierce Fin. & Constr. Co., 27 So.2d 76 (Fla. 1946) (limit on grants of sovereignty lands that materially impair public uses)