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Tuesday, Jun 19, 2018
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State lawsuit against St. Pete dock owners could have broad implications

ST PETERSBURG - The calm waters of Coffee Pot Bayou have become the center of a legal storm between the state and private dock owners, and the outcome of the case potentially could impact miles of coastline in the Tampa Bay area. In July, the State Attorney General's office filed suit against Rick and Kelly Ware, a St. Petersburg couple that owns one of dozens of docks on the waterway, which is due north of downtown, claiming the state owns the land beneath the water's surface and that the Wares didn't have the right to build a dock there because they don't own the land. "It's beyond unbelievable,"said Rick Ware. The couple bought the dock in 2008 for more than $140,000. They live in Old Northeast and wanted a place nearby to put their boat on the water. Ware was in the middle of expanding the dock surface when the state Department of Environmental Protection told him the land didn't belong to him.
"We've been fighting this since 2010," he said. On July 10, the state filed suit in Pinellas-Pasco circuit court. Although there are dozens of docks in the area, the state is only suing the Wares. Its complaint alleges that the land under their dock has belonged to the state since Florida became sovereign and that the dock sits atop a navigable waterway. The dispute in Coffee Pot Bayou, which separates the manicured lawns and stately homes of two of the city's better-kept neighborhoods - Snell Isle and Old Northeast - is just the latest battle over submerged lands in Florida. Past court cases have been fought over riverbeds, oceanfront property and even entire lakes. Courts have ruled in either direction. Sometimes, the state has bought up the land in question as part of a settlement, and sometimes it has won outright. "I've seen it for 39 years," Tampa land-use lawyer Ron Weaver said. "Every year there are a couple of cases like this." The outcome of this dispute, though, could have substantial impact on waterfront property owners throughout the Tampa Bay area, including the City of St. Petersburg, which not only collects tax revenue from submerged lots but owns its own underwater parcels - including 12 in Coffee Pot Bayou. "We certainly have a vested interest," said Mark Winn, the city's chief assistant city attorney. City officials are considering whether to get involved in the lawsuit. "We may seek to intervene as a party," Winn said. If a judge sides with the state, the decision could have untold impacts statewide, said Rick Ware. "If they prevail, that essentially invalidates every deed on the bayou, including the city's," he said. Such an outcome might spur other coastal land battles, he said. The case could be tough to resolve because of its many sticking points, some of which predate modern records, according to experts in state land-use law. "It's going to be a battle of the experts here," said Jacksonville land-use lawyer Chris Cobb. "You have to trace the deeds and the language of the deeds as far back as you can." In 1883, the state sold 4 million acres to Hamilton Disston to pay off Civil War bonds, including large swaths of coastal property along the bay in what would later become St. Petersburg. "It really turns on the nature of the conveyance back in 1883," Cobb said. If the state willingly handed over Coffee Pot Bayou to Disston, it would have given up its claim to the submerged land underneath it. Whether the property was included in the purchase is up for debate, though. Another issue that needs to be sorted out is whether the Coffee Pot Bayou property is sovereign - meaning it belongs, collectively, to the people of Florida and likely would not have been sold by the state. That determination could hinge on what Coffee Pot Bayou looked like when Florida became a state on March 3, 1845. If the water was deep enough back then, the land under it would have been considered sovereign. Otherwise, the land would have been ceded to the state with other mud flats and shallow creeks and intended for private sale and use five years later. Determining whether Coffee Pot Bayou was navigable back then could be tough, complicated by, among other things, disagreement over the standard that should be used to answer that question. Is it enough that a canoe could have made its way in Coffee Pot Bayou at any time, including low tide, or would a larger vessel need to have been able to make the journey? "Whether or not a canoe is [a sufficient way to determine navigability] has been a matter of debate for years," said Weaver. Maps from the mid-1800s may not be of any help, either. "Unfortunately, maps don't say what's navigable," Weaver said. The only way to be sure of how deep the water was in 1845 would be to have a hydrogeologist sample the soil there, he said. How long the case could drag on in court, why the state wants its land back and whether it will go after other property owners are lingering questions. While representatives from the state Department of Environmental Protection and the Attorney General's office declined to talk about the case, experts don't expect the state to back down. "It's very clear from the complaint that the State of Florida wants its land back," Cobb said. [email protected] (727) 215-7999 Twitter: @kbradshawTBO
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