Bartlett & Deal, P.A. Services

In today’s environment of increasing land development regulation, the purchase of waterfront property poses special issues to the Purchaser which requires that the Purchaser spend some time examining their ability to develop the property prior to committing to the purchase. Waterfront property often involves issues such as jurisdictional wetlands lines, mean high water lines, sovereign state land ownership, navigational servitudes & dredging rights, restrictions on rebuilding in the event a storm destroys the property, protection of waterfront vegetation, erosion control, and restrictions on constructing docks and bulkheads. The best avenue for a prospective purchaser to take is to request, in the contract for purchase of the property, a “feasibility period “ which gives the buyer a reasonable amount of time to investigate the property’s suitability for their intended purpose. The information presented herein is intended to be applicable to waterfront property in primarily the Northeast Florida area.

Below is a discussion and additional information of important issues regarding the purchase of waterfront property:

1. Questions a person buying waterfront property should ask:

(A) Were all docks and bulkheads on the property constructed under a valid permit from the agency having jurisdiction? If so, please provide a copy of the permit. If not, please explain or document why a permit was not required.

(B) If the property is oceanfront, the buyer needs to ask where the “Coastal Construction Control Setback Line” is located. All construction seaward of this line must be permitted through the Florida Department of Environmental Protection. If existing construction lies seaward of the Line and is destroyed in a storm or other event, the new construction may be limited to the footprint of the old construction. The Line’s location is changed periodically, and only a proper and recent survey will show its current location.

(C) Are there any “Jurisdictional Wetland’s Lines (JWL)” on the property. Whether or not a portion of the property looks “swampy”, a JWL may exist on the property. These lines are defined primarily by the presence of “hydrologic” species of plants- that is, plants that typically grow in areas where standing water is often present. Examples include water oaks, certain ferns, cypress, marsh grass, and tupelo trees. If a JWL is present, the Florida Department of Environmental Protection (FDEP) has jurisdiction over any proposed development within these areas and no construction may occur there without FDEP permitting and approval. Construction in these areas may be completely prohibited, or expensive mitigation may be required. The best way to determine the location of any JWLs on the property is to hire an environmental engineer to visit the property and map their probable location. The only way to know for sure is to submit the engineer’s map to the FDEP and have it approved as a “binding jurisdictional wetlands line delineation.”

(D) Where are all setbacks per the applicable zoning codes? What is the current zoning on the property? The setbacks typically include front, rear, and side yard setbacks. Together, they define the portion of the lot on which a home can be built. If the lot is platted, building restriction lines may be present which restrict the location of a home on the property. The zoning for the property defines not only the setbacks, but the minimum lot area, number of dwellings permitted on the property, etc. Next, ask at your local county zoning office whether any county zoning codes require setbacks or “buffers” from wetlands areas. If so, you must consider these setbacks as well in planning a suitable area in which a home may be built. Recently, St. Johns County, Florida has passed revisions to its Land Development Code requiring substantial setbacks and buffers from wetlands areas.

(E) How will the home or other property to be constructed (if vacant) access the road? If it is necessary for an access driveway to extend through a wetlands area additional permitting may be required.

(F) Will or is a septic tank required on the property. Many recent zoning codes require a minimum lot area for the property to be eligible for a septic tank. Often only uplands (non-wetland areas) may be counted towards the required lot area. Many properties may be rendered undevelopable because they are not large enough, or contain too much in wetland area to allow a septic tank and drainfield system.

(G) If the purchaser wants to build a dock or bulkhead, some additional planning and feasibility is required. Currently, the Army Corps of Engineers is barred by granting any permits for construction of docks on the St. Johns River or Intracoastal Waterway due to a lawsuit filed in Federal Court by an environmental group. The Corps of Engineers, St. Johns Water Management District, FDEP, or the County may have jurisdiction and require permitting for the construction of docks and bulkheads.

2. How does a Land Use/Real Estate Attorney help a prospective purchaser with addressing the above questions and in dealing with the regulatory process? The attorney may be as involved, or un-involved as the client wishes. At a minimum the attorney will look at the survey for the property, discuss it with the client, and point out some of the above issues that the client may want to check on further. The most important step for the client to take is to make sure that the include in their contract for purchase a reasonable period of time for feasibility study. The attorney can assist the client in obtaining required permits and in coordination with the client’s builder and/or architect, as well as coordinate with the various agencies involved in the process. Typically, an attorney will bill by the hour for these types of services, so it may be more cost-effective for the Buyer to hire the attorney to point out the issues to the client or the client’s builder, and then allow them to pursue permitting themselves, or perhaps if complicated action is required- retain a coastal/wetlands engineer to act as a consultant for the project. It is important for the purchaser, their real-estate agents, and all other parties to understand that a real estate attorney acting as the “settlement agent” for the closing is in no way addressing the above issues. An attorney acting as a settlement agent or “closing attorney” for the purchase of the property is required to prepare and record the documentation necessary to transfer title to the property from the buyer to the seller “as is”. In no way does an attorney acting in this capacity make any representation or incur any liability as to the ability of the purchaser to develop or build upon the property.

3. Are clients purchasing oceanfront or other waterfront property generally knowledgeable and sophisticated as the required regulatory processes for obtaining permits, and as to restrictions on their ability to build on the property? Normally, the answer to this question is definitely “NO”! This is important for the seller, the real estate agents, and most importantly- the Buyer to realize. The issues involving development on waterfront property are complex at best and considering the amount of the investment generally involved, they merit professional assistance in their study and resolution.

4. Do all of these issues sometimes cause people to back out of a purchase? Clearly the answer here is yes. But, it is better to have a purchaser conduct a proper study and make an informed decision than to have them find out later when they go to pull the permit for their construction. Finding out at that stage of the game that they can’t build their home can be devastating. More sophisticated purchasers such as developers and builders generally are more aware of these issues and are prepared to address them as necessary.