Group Title: Historic St. Augustine: Seawall
Title: Motion for Summary Judgment
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Permanent Link: http://ufdc.ufl.edu/UF00095518/00011
 Material Information
Title: Motion for Summary Judgment
Series Title: Historic St. Augustine: Seawall
Physical Description: Financial/tax/legal record
Language: English
Publication Date: 1992
Physical Location:
Box: 8
Divider: Seawall
Folder: Seawall
 Subjects
Subject: Saint Augustine (Fla.)
Seawall (Saint Augustine, Fla.)
Spatial Coverage: North America -- United States of America -- Florida -- Saint Johns -- Saint Augustine
Coordinates: 29.888145 x -81.309125
 Record Information
Bibliographic ID: UF00095518
Volume ID: VID00011
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text






IN THE CIRCUIT COURT, SEVENTH
JUDICIAL CIRCUIT, IN AND FOR
ST. JOHNS COUNTY, FLORIDA

CASE NO.: 92-754-CA
DIVISION: A
HENRY WHETSTONE and
ESTHER WHETSTONE,

Plaintiffs,
vs.

MARGUERITE S. CONNELL and
CARL WAYNE CONNELL,

Defendants.


MOTION FOR SUMMARY JUDGMENT

COME NOW the above-named Defendants, by and through

their undersigned attorneys, and, pursuant to Rule 1.510

Florida Rules of Civil Procedure move for Summary Judgmept

in their favor. With particularity the grounds upon wl4ch S

this motion is based and the substantial matters of law -to r

be argued are as follows:

1. That as shown below, the pleadings on file togeth-

er with the affidavits attached thereto and the exhibits

attached to such affidavits and to this motion show that

there is no genuine issue as to any material fact and that

the Defendants are entitled to a judgment as a matter of

law.

2. That the Plaintiffs have alleged in their com-

plaint that the Defendants' restaurant and piers allegedly

interfere with the Plaintiffs' right of view toward the main









N .al
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channel of the Matanzas River, constitute an alleged inter-

ference with the alleged riparian rights of the Defendants,

that improvements made to the Defendants' restaurant and

associated structures were done without appropriate permits

from the City of St. Augustine and that the Defendants'

structure constitute an alleged trespass upon the riparian

ownership of the Defendants.

With regard to all claims by the Defendants, the

exhibits attached hereto show that the Plaintiffs are not

riparian owners and, therefore, lack standing to bring this

action. The Complaint alleges that the Plaintiffs are the

owners of Lot 2, Block 21, City of St. Augustine and at-

tached to their complaint as their munument of title is a

deed dated April 12, 1965 conveying therein certain de-

scribed properties including Lot 2 of Block 21 as per

official map of the City of St. Augustine dated January 1,

1905. Attached hereto and made a part hereof as Exhibit "A"

is a certified copy of the official map of St. Augustine,

1905 as recorded in Official Map Book at page H for that

portion of the City of St. Augustine including Lot 2 of

Block 21. That official map reflects that Lot 2 of Block 21

is not a riparian lot and does not extend to the water.

Additionally, assuming arguendo that the complaint alleges

other ownership of property adjacent to Lot 2 of Block 21,

the map also reflects that the other properties do not












extend to the water and, therefore, the Plaintiffs are not

upland owners and, thus, do not have any riparian rights.

Attached as Exhibit "B" is a true and correct copy of the

Property Appraiser's Map for that area of the City of St.

Augustine which reflects that Block 21 is not an upland lot

extending to the waters of the Matanzas River and further

reflecting that the City of St. Augustine is the owner of

the upland properties lying to the East of Aveneda Menendez.

Attached as Exhibit "C" is a certified copy of a deed from

the United State of America dated March 28, 1955, as record-

ed in Deed Book 218 at Page 278, deeding the seawall from

the most southeasterly point of the southeast bastion of the

Casteilo San Marcos to the St. Francis Barracks Reservation.

3. That as additional grounds with regard to Count I

attached hereto and made a part hereof as Exhibit "D" is the

affidavit of the Defendant Carl Connell; that attached to

said affidavit are copies of warranty deeds which reflect

that as to the property described as belonging to -the

Defendants that they are owners of said property by virtue

of the Marketable Record Title Act, Florida Statutes 712.01

et.seq. To the extent that the complaint alleges that

improvements have been located without the properties

belonging the Defendants by virtue of the deeds attached to

Exhibit "D", such improvements have, as shown by the affida-

vit of Frank Usina attached as Exhibit "E", been properly














permitted by the State of Florida and the City of St.

Augustine. Attached as composite Exhibit "F" are certified

copies of various documents from the City of St. Augustine

reflecting the approval of the Historic Architectural Review

Board and the City's Planning and Zoning Board granting

approval for such structures. The City of St. Augustine is

by virtue of Section 9 Chapter 11148 laws of Florida Special

Acts of 1925, the owner of such bottom lands and, therefore,

the Plaintiff does not have an exclusive right of possession

sufficient to bring an action for ejectment.

4. That as to Count II that in addition to the

matters above set forth and as additional grounds therefore

the Plaintiffs are not entitled to damages for any alleged

trespass. Under Florida Law the bottom lands in the State

of Florida belong to the State or, in this instance to the

City of St. Augustine. If a wharf or other structure is

erected improperly, it constitutes a purpresture which is a

right vested in the Crown, the State, or in this instance

the City of St. Augustine. Any right to damages lies only

to the one who has the title, the City of St. Augustine,

which has not objected and in fact has specifically author-

ized the structures and, therefore, an action for damages

does not lie, nor, to for the reasons discussed above, does

the right to injunction.












5. Count III alleges violations of the building and

zoning code of the City of St. Augustine for an alleged

failure to notify property owners within 150 feet. Section

33-158 of the Zoning Code of the City of St. Augustine, as

in effect in 1989, requires that notices be mailed by a

certified mail to the owners of real property within 150

feet of the boundary upon which conservation zone develop-

ment is requested. The section specifies

"for the purpose of notice requirements to adjoin-
ing owners, the names and addresses of such owners
shall be deemed to be those on the current tax
records in the office of the property appraiser of
St. Johns County. Failure of owners to receive
notice of hearing shall in no way affect the
validity of the action taken. However, should any
property owner listed on the current tax records
fail to receive notice of public hearing and files
a verified written complaint with the Planning and
[Department] prior to action by the Board, the
Application will be deemed null and void, and a
new application will be processed."


As shown by the affidavit of Frank Usina, notice was in

fact mailed to the persons owning the adjoining properties

within 150 feet including the Plaintiffs. As indicated by

the affidavit of Frank Usina and the exhibits attached

thereto notices of the certified mail were given to the

Plaintiffs but the notice was ultimately returned after

several notices "unclaimed".

Case law indicates that even were there has been no

compliance with a statutory requirement of mail notice or

actual receipt of notice by a person affected by a rezoning














that where there has been substantial compliance with the

provisions of the ordinance relating to posting of the

notice in front of the property and newspaper advertising,

the action of a Planning and Zoning Board will not be over-

turned. The affidavit of Frank Usina indicates that the

notice of the rezoning was posted in front of the property

and the certified copies attached by the City Clerk's

office, indicates that newspaper notice was in fact given.

It, therefore, affirmatively appears that in addition to the

grounds above alleged that the Plaintiffs' action relating

to the approval of the City of St. Augustine Planning and

Zoning Board should be dismissed as to the following defens-

es:

a. The action is untimely;

b. The Plaintiffs are guilty of laches;

c. The Plaintiffs have failed to exhaust their

administrative remedies;

d. An independent action challenging or collater-

ally attacking an administrative orders such as those of the

City of St. Augustine granting permission to construct the

piers may not be collaterally attacked.

6. That the items complained of in paragraph 35 of

the Complaint do not constitute as a matter of law special

injury sufficient to convey standing.















WHEREFORE, Defendants move the Court for Summary

Judgment in their favor several as to each count and re-

spectfully move the Court to determine that there is a

complete absence of a judiciable issue of either law or fact

raised by the Complaint and to reserve jurisdiction to

assess a reasonable attorney's fees pursuant to Florida

Statutes 57.105.


DOBSON & CHRISTENSEN, P.A.



BY:
GeoffreY B. sobs
Florida Ba # 01 919
66 Cuna St ee Suite B
St. Augustine, FL 32084
Telephone: (904) 824-9032
Telefax: (904) 824-9236


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing has been furnished to George McClure, Esquire,

Post Office Box 3504, St. Augustine, FL 32085 by U.S. Mail

this /-dIay of June, 1992.




Attorney




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