The 2023 Florida Statutes (including Special Session C)

Title XI
COUNTY ORGANIZATION AND INTERGOVERNMENTAL RELATIONS

Chapter 161
BEACH AND SHORE PRESERVATION

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F.S. 161.052

161.052 Coastal construction and excavation; regulation.—

(1) No person, firm, corporation, municipality, county, or other public agency shall excavate or construct any dwelling house, hotel, motel, apartment building, seawall, revetment, or other structure incidental to or related to such structure, including but not limited to such attendant structures or facilities as a patio, swimming pool, or garage, within 50 feet of the line of mean high water at any riparian coastal location fronting the Gulf of Mexico or Atlantic coast shoreline of the state, exclusive of bays, inlets, rivers, bayous, creeks, passes, and the like. In areas where an erosion control line has been established under the provisions of ss. 161.141-161.211, that line, or the presently existing mean high-water line, whichever is more landward, shall be considered to be the mean high-water line for the purposes of this section.

(2) A waiver or variance of the setback requirements may be authorized by the department in the following circumstances:

(a) The department may authorize an excavation or erection of a structure at any riparian coastal location as described in subsection (1) upon receipt of an application from a riparian owner and upon the consideration of facts and circumstances, including adequate engineering data concerning shoreline stability and storm tides related to shoreline topography, which, in the opinion of the department, clearly and unequivocally justify such a waiver or variance.

(b) If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing, and if said existing structures have not been unduly affected by erosion, a proposed structure may be permitted along such line on written authorization from the department if such proposed structure complies with the Florida Building Code and the rules of the department. However, the department shall not contravene setback requirements established by a county or municipality which are equal to, or more strict than, those setback requirements provided herein.

(c) The department may authorize the construction of pipelines or piers extending outward from the shoreline, unless it determines that the construction of such projects would cause erosion of the beach in the area of such structures.

(3) The provisions of this section shall not apply to structures intended for shore protection purposes which are regulated by s. 161.041 or to structures existing or under construction on June 27, 1970.

(4) The department may by regulation exempt specifically described portions of the coastline from the provisions of this section whenever in its judgment such portions of coastline, because of their nature, are not subject to erosion of a substantially damaging effect to the public.

(5) The setback requirements as defined herein shall not apply to any riparian coastal locations fronting the Atlantic Ocean or Gulf of Mexico which have vegetation-type nonsandy shores.

(6) The setback requirements defined in subsection (1) shall not apply to any modification, maintenance, or repair to any existing structure within limits of the existing foundation which does not require, involve, or include any additions to, or repair or modification of, the existing foundation of that structure. Specifically excluded from this exemption are seawalls and any additions or enclosures added, constructed, or installed below the first dwelling floor or lowest deck of the existing structure.

(7) Any coastal structure erected, or excavation created, in violation of the provisions of this section is hereby declared to be a public nuisance, and such structure shall be forthwith removed or such excavation refilled after written notice by the department directing such removal or filling. In the event that the structure is not removed or the excavation refilled as directed within a reasonable time, the department may remove such structure or fill such excavation at its own expense. The cost thereof shall become a lien upon the property of the upland owner upon which such unauthorized structure or excavation is located.

(8) Any person violating any provision of this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.083. Such person shall be deemed guilty of a separate offense for each month during any portion of which any violation of this section is committed or continued.

(9) The secretary of the department may make recommendations to the Board of Trustees of the Internal Improvement Trust Fund concerning the purchase of the fee or any lesser interest in any lands seaward of the setback requirement as environmentally endangered lands or as outdoor recreation lands.

(10) A coastal county or municipality fronting on the Gulf of Mexico or the Atlantic Ocean shall advise the department within 5 days after receipt of any permit application for construction or other activities proposed to be located within 50 feet of the line of mean high water. Within 5 days after receipt of such application, the county or municipality shall notify the applicant of the requirements for state permits.

(11) The department is authorized to adopt rules for the implementation of the following provisions of this section: excavation and construction; setback requirements; waivers or variances; exemptions; the removal of unauthorized structures or refilling of unauthorized excavations; and violations and penalties.

(12) In accordance with ss. 553.73 and 553.79, and upon the effective date of the Florida Building Code, the provisions of this section which pertain to and govern the design, construction, erection, alteration, modification, repair, and demolition of public and private buildings, structures, and facilities shall be incorporated into the Florida Building Code. The Florida Building Commission shall have the authority to adopt rules pursuant to ss. 120.536 and 120.54 in order to implement those provisions. This subsection does not limit or abrogate the right and authority of the department to require permits or to adopt and enforce environmental standards, including but not limited to, standards for ensuring the protection of the beach-dune system, proposed or existing structures, adjacent properties, marine turtles, native salt-resistant vegetation, endangered plant communities, and the preservation of public beach access.

History.—s. 1, ch. 70-231; s. 82, ch. 71-136; s. 1, ch. 75-87; s. 4, ch. 78-257; s. 2, ch. 80-183; s. 66, ch. 81-259; s. 21, ch. 94-356; s. 1, ch. 98-131; s. 5, ch. 2000-141; s. 34, ch. 2001-186; s. 3, ch. 2001-372.

F.S. 161.052 on Google Scholar

F.S. 161.052 on Casetext

Amendments to 161.052

Arrestable Offenses / Crimes under Fla. Stat. 161.052

Level: Degree
Misdemeanor/Felony: First/Second/Third

S161.052 - CONSERVATION-ENVIRONMENT - CONSTRUCT ON SAND DUNE BEYOND SETBACK LINE - M: F

Annotations, Discussions, Cases:

Cases from cite.case.law:

ATLANTIS AT PERDIDO ASSOCIATION, INC. v. L. WARNER, W. M., 932 So. 2d 1206 (Fla. Dist. Ct. App. 2006)

. . . The Florida Legislature enacted section 161.052, Florida Statutes, in 1970 to prohibit certain construction . . .

ST. JOSEPH LAND AND DEVELOPMENT COMPANY, v. FLORIDA DEPARTMENT OF NATURAL RESOURCES,, 596 So. 2d 137 (Fla. Dist. Ct. App. 1992)

. . . Section 161.052, Florida Statutes, adopted by the 1970 Legislature, prohibits unauthorized excavation . . . Contrary to the language of Section 161.052, in adopting Section 161.053 the Legislature did not specifically . . .

DEPARTMENT OF NATURAL RESOURCES, v. WINGFIELD DEVELOPMENT COMPANY,, 581 So. 2d 193 (Fla. Dist. Ct. App. 1991)

. . . .-02(5), 161.052 and 161.053. Of particular importance to note is § 161.053(9), Fla. . . .

TOWN OF PALM BEACH, E. v. STATE DEPARTMENT OF NATURAL RESOURCES, 577 So. 2d 1383 (Fla. Dist. Ct. App. 1991)

. . . applicable criteria, the following may be considered not to fall within the meaning and intent of Sections 161.052 . . .

A. McNULTY, v. TOWN OF INDIALANTIC,, 727 F. Supp. 604 (M.D. Fla. 1989)

. . . . § 161.052 (1970), which prohibits construction of dwellings within 50 feet of the mean high water line . . .

ST. JOE PAPER COMPANY, a St. a a v. FLORIDA DEPARTMENT OF NATURAL RESOURCES,, 536 So. 2d 1119 (Fla. Dist. Ct. App. 1988)

. . . In 1970, the Florida Legislature enacted section 161.052, Florida Statutes, prohibiting certain construction . . .

NICHOLS v. DEPARTMENT OF NATURAL RESOURCES,, 22 Fla. Supp. 2d 249 (Fla. Div. Admin. Hearings 1985)

. . . Pursuant to Section 161.052, et seq., Florida Statutes, it is necessary to obtain a permit from the Department . . .

STATE DEPARTMENT OF NATURAL RESOURCES J. v. SUNSET REALTY CORPORATION,, 474 So. 2d 363 (Fla. Dist. Ct. App. 1985)

. . . If the variance is requested under the provisions of Section 161.052(2)(b), Florida Statutes, or Section . . . General Authority 161.052, 161.-053, 370.021 FS. Law Implemented 161.052, 161.053, 370.021(1) FS. . . .

WOODHOLLY ASSOCIATES, v. DEPARTMENT OF NATURAL RESOURCES, 451 So. 2d 1002 (Fla. Dist. Ct. App. 1984)

. . . Establishment of a coastal construction control line or the 50-foot setback requirement (Section 161.052 . . .

P. HELD, v. TRAFFORD REALTY COMPANY W., 414 So. 2d 631 (Fla. Dist. Ct. App. 1982)

. . . line, which is drawn 50 feet from the line of the mean high water mark of the Atlantic Ocean [sec. 161.052 . . .

TOWN OF INDIALANTIC v. A. McNULTY,, 400 So. 2d 1227 (Fla. Dist. Ct. App. 1981)

. . . . §§ 161.052(2)(b), 161.053(4), Fla.Stat. (1979). . . . The state statute requires a land owner to apply for a permit to construct beyond the “dune line”. § 161.052 . . . Lachman, 71 So.2d 148 (Fla.1953); § 161.052(2), Fla.Stat. (1979); Fla.Admin.Code Rule 16B-25.05 — .09 . . . Section 161.052(7), Fla.Stat. (1979), declares new construction beyond the dune line without a permit . . .

B. RHOADS, Jr. v. VIRGINIA- FLORIDA CORPORATION,, 549 F.2d 985 (5th Cir. 1977)

. . . . § 161.052 requiring a 50 foot minimum setback for all beachfront construction. . . .

STATE L. SHEVIN, v. INDICO CORPORATION,, 319 So. 2d 173 (Fla. Dist. Ct. App. 1975)

. . . agent for the ordinances) and further alleged violations of coastal construction requirements under § 161.052 . . . s Pinnacle Port, when completed as planned, would not violate the 50-foot setback line imposed by § 161.052 . . . [T]he projects violated Section 161.052, Florida Statutes, which prohibits building within 50 feet of . . . Pinnacle Port when completed as planned would not violate the 50-foot setback line imposed by Section 161.052 . . .