More letters sent back and forth in the ongoing National Historic Register controversy

July 6, 2021
By Marcy Shortuse

BY MARCY SHORTUSE – While a meeting is scheduled for Thursday, Aug. 5 with the Florida National Register Review Board to rehash the National Register of Historic Places nomination of part of the island’s downtown residential historic district, and to see if it meets the eligibility standards set by the state, letters are still flying back and forth between county attorney Richard Wesch and Jon Morris, senior attorney with the Florida State Department.

Also, as of June 10 the state’s Survey and Registration Supervisor Ruben Acosta was still sending out letters to homeowners, asking for their opinion on the matter.

In a letter dated June 25, Wesch starts out by giving the following example as to why the historic residential district nomination could be construed as an invasion of privacy.

As a threshold issue, please know that my office has extensively reviewed the federal regulations under 36 CFR Parts 60 and 61 regarding the nomination process and the regulation of states as Certified Local Governments under the National Historic Preservation Act. While I agree that these federal regulations do indeed fail to provide for adequate due process under federal law, I have particular concern with the application of these regulations in the State of Florida, where our Constitution expressly protects individuals from governmental intrusion into their private lives. In fact, in a very recent opinion from the First DCA in Green v. Alachua County, No. 1020-1661 (June 11, 2021), the right to privacy in the Florida Constitution was found to be so fundamental that “any law that implicates it ‘is presumptively unconstitutional,’ such that it must be subject to strict scrutiny and justified as the least restrictive means to serve a compelling governmental interest.” Id. at 5 (quoting Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1260 (Fla. 2017)).

Your letter cited the case Moody Hill Farms Ltd. Partnership v. U.S. Dept. of Interior, 205 F.3d 554 (2d Cir. 1999) for the proposition that being involuntarily listed on the National Register does not impose a burden on objecting property owners. However, while the federal court in Moody Hill Farms failed to find a constitutionally protected interest to support a due process claim, the plaintiffs in that case did not enjoy the very  broad privacy protection provided under Art. I, Sec. 12 of the Florida Constitution. As articulated in the Green opinion cited above, “If a challenged law implicates a privacy right, the burden shifts to the government ‘to prove that the law further[s] a compelling state interest in the least restrictive way.’ “ Green at 6 (quoting Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1260 (Fla. 2017)).

Wesch goes on to state, “You also go to great lengths to explain that a determination of eligibility for listing is not the same as being actually listed on the National Register. While I agree that the two are not the same, forwarding the nomination for a determination of eligibility still implicates an objecting property owner’s right to privacy … This is precisely the type of national publicity that the residents of Boca Grande wish to avoid, and which should not be imposed upon them absent a compelling state interest.”

Wesch explained in the letter that while In some drastic cases state intrusion could be considered “compelling enough to justify some government intrusion into a property owner’s right to privacy,” this is not one of those cases. “With this in mind, I must ask whether you are able to articulate any state interest, let alone a compelling one, which would justify the State’s intrusion into the privacy rights of the owners within the proposed district. Without a compelling state interest, such an action is completely indefensible under Florida law,” Wesch said in the letter.

Wesch finishes the letter by stating, “The right of privacy enjoyed by the people of Florida is broad and implacable. It is so fundamental that any infringement on its sanctity is presumed to be unconstitutional absent a compelling state interest. I do not believe such an interest exists in this case. The fundamentally flawed federal regulations are a precarious justification for taking an action that violates  a clearly-defined constitutional right under the laws of this State. To move forward with the proposed nomination, even for a determination of eligibility, would be to disregard these hallowed legal principles and is done so at the State’s peril.”

In another letter sent to the Boca Beacon, one home owner in the historic district was sent a letter by Ruben Acosta, outlining the merits of the nomination, and asking the homeowner listed on the letter if they wished to sent their notarized affidavit prior to the August 5 meeting.

At this time there is a landslide of objections against the nomination that have been sent to Acosta’s office. While those objections have been noted, because the originator of the nomination, Micky Hartig, had appealed the local and county historic board’s decision to turn down the nomination, it must be heard by the National Review Board to see if the property meets the criteria for the National Register. That meeting will take place August 5.