Forget about floating homes.
Tired of endless fights with Riviera Beach about where he can and can’t moor his liveaboard vessel, Fane Lozman is taking a different tack
Claiming city officials have taken away his right to use roughly 51 acres of mostly submerged land he owns on Singer Island, he is asking a federal judge to force Riviera Beach to buy it.
The price tag? “Over a half-billion dollars,” he claims.
The latest legal salvo in Lozman’s never-ending feuds with city officials is being greeted with skepticism by
environmental activists and city officials, and by cheers from landowners who have spent decades trying to develop their water-soaked property in one of the most pristine stretches of the Intracoastal Waterway.
“Fane has a very strong case,” said Dan Taylor, whose family for more than 50 years has engaged in off-again, on-again legal bouts with the city over its right to build on its submerged lands.
“They’re in for a rude awakening. It’s going to be the worst battle the city has ever seen.”
Lisa Interlandi, executive director of the Everglades Law Center, said Lozman, Taylor and others who think they should be able to fill their submerged land or be paid top dollar for it are delusional.
While Lozman has twice taken Riviera Beach to the U.S. Supreme Court and won, she said this court battle is doomed.
“The time for filling in submerged lands is long gone and rightly so,” said Interlandi, an attorney who lives along the Intracoastal in North Palm Beach. Wetlands, seagrasses, mangroves and other sensitive marine habitats have been protected from development for decades.
When she heard Lozman spout off about his lawsuit, she said she wasn’t worried. “It’s probably the most ridiculous thing I’ve ever heard,” she said. North Palm Beach attorney Jim Ryan, who is on Lozman’s legal team along with a former clerk for the late U.S. Supreme Court Justice Antonin Scalia, said he understands Interlandi’s reaction.
People believe the land in the environmentally rich Lake Worth Lagoon is sacred and can’t be touched. “If you say that you’re going to fill the property, it makes people’s heads turn around,” said Ryan, whose family has represented Taylor and his family for years. “Everyone thinks they understand private property rights until they don’t like the answer.” But, he insists, the law is clear: “If you can’t do anything with your property, you’re entitled to compensation.” Further, he said, the submerged lands along Singer Island are unique and not just because of the sweeping waterfront views they would offer future homeowners.
Roughly 311 acres of submerged land were sold by the state nearly a century ago with the promise they could be developed. More than half of them are home to buildings that are familiar to county residents.
In West Palm Beach, people have only to look at the soaring Bristol luxury condominium at the south end of the Royal Park Bridge or at One Watermark Place, just north of the Flagler Memorial Bridge, to see examples of how the former state land has been used, he said.
Submerged property at the southern end of Singer Island, home to multimillion-dollar homes, was filled years ago. Roughly 150 acres at the north end of Singer Island remained un-touched for a variety of reasons, Ryan said.
But, he insists, despite the passage of time, the implementation of development restrictions and the public’s desire to protect the environment, the promise the state made when it sold the land remains.
“A change in attitude doesn’t mean a change in the law,” Ryan said. “The property rights run with the land.” According to the 1924 deed, the land can be filled and seawalls can be built to secure it, Ryan said. “The state, the county, the federal government, any one of them at any time could say you can’t do that,” Ryan said. “They are completely within their rights.” But, he said, those rights come with a cost. Under the takings clause of the Fifth Amendment to the U.S. Constitution, private property can’t be taken for public use “without just compensation.”
“I respect that people’s perspectives have changed and the amount of use might be regulated,” Ryan said. “But at some point it’s a taking.”
In its response to Lozman’s lawsuit, attorneys for the city said a decision on that issue is far into the future. Attorney Andrew Baumann, whose West Palm Beach law firm was hired to represent Riviera Beach, said Lozman hasn’t taken basic steps to prove the city has stripped him of the right to use his land. He hasn’t asked for a building permit. He hasn’t sought permits from state or federal regulators to fill it. “Lozman has not alleged that the city has taken any official action advising him that no development of his property is allowed,” Bauman wrote in court papers, asking U.S. District Judge Donald Middlebrooks to dismiss the lawsuit. But Lozman counters that any efforts to use his lots, which include a ribbon of dry land along North Ocean Drive, have been thwarted.
After he persuaded the U.S. Supreme Court in 2013 that city officials illegally seized and destroyed his floating home, the self-made millionaire said he bought the land so he would have a place to moor a new liveaboard he bought. Last year, the city passed a law prohibiting floating homes on private property.
The city has also revoked permits he got to install electricity and rejected his requests for permits for water service and even to build a fence, Lozman said. He sued the city to get a court order so it would assign his property an address so he could get mail delivery, according to the lawsuit. Shortly after his mailbox was installed, the city asked the U.S. Postal Service to stop delivery. It did. The final straw came in 2020 when the city rezoned his property and other submerged land on Singer Island for special preservation. Instead of being allowed to build five homes per acre, the new zoning makes the land off-limits to development. Under preservation zoning, only viewing platforms or docks for boats without motors can be built. Since that means he can never live on the land, the property appraiser’s office revoked the homestead exemption he had held for five years. City officials say the zoning change just codified restrictions that were already in place. Since the early 1990s, Riviera’s comprehensive land use plan, the bible that dictates the city’s growth, tagged the submerged lands for preservation. Under Florida law, the zoning had to match the use dictated by the comprehensive plan, Baumann wrote. But to Lozman, the rezoning was an act of war.
“They decided to take away development rights that have been there for 100 years,” he said of the spark that lit the latest battle. Over the years, Taylor’s family and others have challenged the city’s ability to stop them from building on their land.
After a yearslong battle, a group that owned 51 acres next to the southern boundary of John D. Mac-Arthur Beach State Park in 1993 won the right to fill it and build 125 homes.
As part of a settlement, Florida environmental regulators agreed that Palm Beach Isles Associates didn’t need a state permit to fill the land. They also agreed not to interfere with the landowners’ efforts to get necessary permits from the U.S. Army Corps of Engineers. The 4th District Court of Appeal upheld the settlement.
Despite years of legal wrangling, the homes were never built. Development plans fell apart when the Corps denied the group a dredge and fill permit and the man who led the group died, said Ryan, whose brother was involved in the lawsuit.
In 2020, Rodney Barretto, a prominent Miami lobbyist who is chair of the Florida Fish and Wildlife Conservation Commission, tried to revive the long-abandoned plans. Barretto, who bought about 181⁄ 2 acres of the land involved in the settlement, filed papers in Palm Beach County Circuit Court to reinstate the deal.
The effort was shortlived. He dropped his lawsuit amid an uproar that erupted over his seeming contradictory roles as a protector of Florida wildlife and his plans to fill and develop sensitive lands. Taylor also returned to court last year to enforce his right to use the roughly 2 acres he owns just north of Lozman’s tract. While he initially wanted to build a home on stilts, after Lozman’s first Supreme Court win, he decided to use the property for a floating home. The city initially agreed to let Taylor build a wall, dock and driveway and install riprap, but later reversed course. It issued a stop-work order, rescinded the permits and ordered him to remove any work that had been done. Circuit Judge Joseph Marx expressed sympathy for Taylor’s predicament and questioned city officials’ motives. “The court empathizes with Mr. Taylor’s frustration over the city’s handling of this matter,” he wrote. “The court also is quite concerned that there might be machinations afoot whereby the city is stalling or frustrating whatever development rights Mr. Taylor might have.”
Eventually, he said, Taylor’s only recourse might be to file a separate lawsuit against the city, claiming that it robbed him of any ability to use his land and therefore must buy it.
But, he said, he wasn’t ready to make that decision. Marx ordered city officials to meet with Taylor to explain what could do with his property. The meeting was futile, Ryan said. “It became clear that we would have to pursue a taking (lawsuit),” he said.
But, Interlandi said, the city isn’t the only entity that is blocking development.
Palm Isles couldn’t turn its submerged land into homesites because the Corps of Engineers denied its request for a dredge and fill permit.
In a 2003 decision, the U.S. Court of Federal Claims upheld the Corps decision and also ruled that Palm Isles couldn’t recover money for the land it couldn’t develop.
The Corps denied the permit, saying the proposed project would interfere with navigation. While a string of U.S. Supreme Court decisions
Continued on next page “It’s probably the most ridiculous thing I’ve ever heard.” Lisa Interlandi
Executive director of the Everglades Law Center, on Fane Lozman talking about his lawsuit forces governments to pay for land if development plans are blocked by environmental regulations, the rules are different if a project obstructs boat traffic.
The commerce clause of the U.S. Constitution gives the federal government broad powers to “regulate and control the waters of the United States in the interest of commerce.” Under a legal theory called “navigational servitude,” all navigable waterways are considered property of the federal government, Further, the court ruled that Palm Isles didn’t deserve to be compensated for a narrow slice of upland it owned. The strip had no development value once it was clear the submerged lands couldn’t be filled, it ruled.
Ryan said he is convinced some of the submerged land owned by Palm Isles could have been developed. The landowners simply asked for too much.
If the lawsuit he filed on behalf of Barretto had moved forward, the Corps may finally have been asked to decide how much, if any, of the submerged land could be filled for development.
But, he said, speculation about what the Corps may or may not do is irrelevant when it comes to Lozman’s lawsuit.
Lozman is suing the city for illegally taking his land. And unlike the federal government, it can’t claim “navigational servitude,” Ryan said.
If Riviera won’t let him build so much as a fence on his property, it has taken his property and must pay him for it.
Lozman said he isn’t greedy. He will abide by a city restriction that limits development to one house per acre on land that was filled after 1989.
He said his planned development would increase Riviera’s tax base and should be welcomed by island residents. The seawalls he wants to build would protect North Ocean Drive, the main artery for those who live in high-rise condominiums that line the ocean.
His strip of upland property and the adjacent road are threatened by erosion, he said. A trench that was dug in the Intracoastal decades ago to get dirt to build the road has accelerated the loss of land.
“People are going to start whining about, ‘Why don’t you build a seawall and backfill the property or it’s going to destroy North Ocean Drive?’ ” he said.
If the city wasn’t standing in his way, he said he would build that wall and provide the fill to shore up the road as part of his development project.
But, he said, since the city has made it clear they won’t let him build on the property, they have to buy him out. He estimates each of the 51 acres he owns would be worth between $7 million and $8 million. The cost of buying his land alone would be nearly $410 million,
Lozman said. But, he said, he expects other landowners will join the lawsuit. There are about 150 acres of land along Singer Island that were sold by the state and could be filled,
Ryan said. California attorney Ian Samuel, who clerked for Justice Scalia, said Lozman’s case is destined for the nation’s high court.
Lozman’s case could clear up a murky area of the law, Samuel said. The high court has never squarely addressed whether a person who buys land can claim that government action, taken years before, made the property worthless.
But even if the court dodges that bigger question, Lozman can still argue that his property value was destroyed when the City Council approved the rezoning six years after he bought it.
“Either way, we win,” he said. Interlandi said Lozman and others who own the submerged lands are ignoring decades of state and federal environmental regulations.
Further, she said, Lozman and many of the others bought the property years after the city’s comprehensive plan was adopted.
They knew restrictions were in place, yet bought it anyway. To expect the taxpayers to pay exorbitant prices for land that had long been targeted for preservation is absurd, she said. “I absolutely support that land being put in public ownership,” she said. “But the government shouldn’t get fleeced to do it.”
Fane Lozman, seen here with his floating home in the Intracoastal Waterway in 2016, owns 51 submerged acres along the western side of Singer Island. He says Riviera Beach officials have blocked him from developing the land, and he has asked a federal judge to order the city to pay him as much as $500 million for taking the land. MEGHAN MCCARTHY/PALM BEACH POST
Jane Musgrave
jmusgrave@pbpost.com
