No homes on submerged lands off Singer Island, federal judge rules
Ruling hands Fane Lozman a defeat but Lozman, who has twice taken Riviera Beach to the U.S. Supreme Court and won, is going for a three-peat
By Jane Musgrave
Five years after Fane Lozman embarrassed Riviera Beach — again — by notching his second U.S. Supreme Court victory against the city, the self-appointed corruption fighter claims he is poised to do it again.
While city officials and environmental groups vehemently disagree, Lozman insists U.S. District Judge Donald Middlebrooks last week handed him his third ticket to the nation’s highest court.
“I respect him, but he’s just wrong,” Riviera’s nemesis said after Middlebrooks threw out his latest lawsuit against the city. In it, Lozman claims the city owes him $49 million for blocking his efforts to develop 8 acres of mostly underwater land and a strip of adjacent upland he owns at the north end of Singer Island.
Attorney Andrew Baumann, whose firm hasn’t been involved in Lozman’s decades-long battles with Riviera over his floating homes and his behavior at council meetings, dismissed the former Marine’s well-known bravado.
“The city believes the court’s ruling is correct,” Baumann said. “This type of wholesale filling of lagoons and submerged lands has not been allowed in Florida for many decades.”
Attorney Lisa Interlandi, policy director for the Everglades Law Center, agreed that development in shallow water adjacent to the shore has been banned for decades. Once owned by the state, the muddy bottoms were transferred into private ownership in the 1920s.
“Judge Middlebrooks' order is based on well-established legal principles under state and federal law and we are confident that the ruling will be upheld,” Interlandi said.
Environmentalists, neighbors decry Lozman’s plans
While not involved in the litigation, Interlandi has joined efforts to block Lozman’s plans to build eight homes on his submerged land that is in one of the most environmentally significant stretches of the 20-mile Lake Worth Lagoon, which is part of the Intracoastal Waterway.
Lozman’s plans, which could trigger owners of other submerged lands to attempt to develop their property, would be devastating, environmentalists say. Singer Island neighbors viewed Lozman as Public Enemy No. 1.
Already, a Delray Beach developer has put a largely underwater 4-acre plot in Boca Raton on the market for $43 million. A real estate agent is asking $15.9 million for five submerged plots in Manalapan.
After public outcry in 2021, Rodney Barreto, a developer who chairs the Florida Fish and Wildlife Conservation Commission, scuttled plans to fill and develop luxury homes, apartments and a marina on more than 12 water-soaked acres along Singer Island. While Barreto said he would sell the land to the state, public records show the land is still owned by his company.
Interlandi, who lives in North Palm Beach, called Middlebrooks’ ruling “a huge victory.”
“(Lozman’s plan) would impact the public's historic right to use and enjoy these waters and could harm threatened and endangered species like manatees and sea turtles, which rely on this area for habitat,” she said.
Ruling focused on city planning, not environmental harm
But, Middlebrooks' 26-page ruling didn't turn on concerns about wildlife.
Instead, the 25-year jurist ruled that Lozman knew restrictions were in place in 2014 when he plunked down $24,000 for the property that includes a narrow strip of dry land along Ocean Boulevard.
“It is apparent from the history and evolution of Florida law pertaining to submerged lands that Mr. Lozman has never had any right or reasonable expectation to develop those portions of his land,” Middlebrooks wrote.
Lozman claims the city stripped him of his development rights in 2020 when it changed the zoning on his land from one unit an acre to one unit per 20 acres.
But, Middlebrooks ruled, the zoning change was perfunctory. Since 1991, Lozman’s property has been designated as a preservation area in the city’s comprehensive plan. Under the state-mandated plan, a road map for the city’s long-term growth, the development of submerged land has been prohibited, he ruled.
Courts have consistently ruled that people shouldn’t rely on zoning categories. Comprehensive plans, which aren’t zoning, are supreme.
“Compliance with a comprehensive plan is mandatory,” Middlebrooks wrote, quoting past court decisions.
He also rejected Lozman’s claims that laws the city enacted made his property worthless.
Pointing to an appraisal conducted by Riviera Beach, Middlebrooks said Lozman could sell the land for $130,000 — a fivefold increase on his investment.
“Mr. Lozman continues to have what he has always had, a narrow strip of dry land, likely worth more than he paid,” Middlebrooks wrote. “The value of his property has not been wholly eliminated.”
Hired former clerk for Justice Scalia
While Middlebrooks’ ruling is steeped in lengthy recitations of past rulings by the nation’s and state’s highest courts, Lozman insists that the judge misinterpreted them.
Further, Lozman said, Middlebrooks ignored numerous roadblocks the city threw up to prevent him from having any use of his property.
When he first bought the land, he said he wanted to use it as a place to moor his latest floating home.
The city, which famously lost its first battle with Lozman over a different floating home, responded by outlawing such dwellings. They also rejected his requests to bring electricity, build a dock or even erect a fence on the property.
“You can’t take someone’s house away and turn their land into a park and say we’re not going to pay you for it,” he said. “There has to be a beneficial use to the property, not just that it’s worth something.”
The self-made millionaire said he hired the late Justice Antonin Scalia’s one-time law clerk, attorney Ian Samuel, to represent him because Scalia wrote the seminal opinion that requires governments to pay for property if its regulations rob land of any value.
“Scalia would be rolling in his grave if he saw (Middlebrooks’) opinion,” Lozman said.
But, Middlebrooks ruled, the facts of the landmark 1992 South Carolina case are far different than those in Lozman vs. Riviera Beach. State regulations in the Carolina case destroyed the value of the private property. Therefore, the state had to buy it.
Lozman insisted the city’s appraisal of his land is speculative. It is doubtful anyone would buy it if he or she can’t use it.
If Middlebrook’s ruling isn’t reversed by the 11th Circuit Court of Appeals in Atlanta, he predicted the Supreme Court will agree to hear the case so it can clarify when government regulations go too far and destroy private property rights.
And, he’s been right before.
Lozman repeatedly lost in lower courts before the Supreme Court in 2013 ruled that Riviera Beach in 2009 improperly used centuries-old maritime law to seize his floating home from the city marina and destroy it. In a case that Chief Justice John Roberts called his favorite of the term, the court ruled that everything that floats is not a boat.
Similarly, a federal jury rejected Lozman’s claims that the Riviera Beach City Council retaliated against him by having him arrested for berating them at public meetings. But, in 2018 the Supreme Court reversed that decision and sent the case back to the lower courts to sort out.
Lozman eventually settled both cases by accepting $875,000 from the city’s insurer.
While confident that Middlebrooks’ opinion will eventually be thrown out, he said the battle will be lengthy, costly and time-consuming.
“He just kicked the can down the road. He’s smart enough to know it’s coming back to him,” Lozman said. “That’s not justice.”
This report was updated to correctly characterize attorney Ian Samuel’s role on the late U.S. Supreme Court Justice Antonin Scalia’s staff. Samuel was a law clerk for him.
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