Plain reading of section 376.313 indicates that cause of action for strict liability is created. Easton v. Aramark Unif. & Career, 27 Fla. L. Weekly D1802 (Fla. 1st DCA Aug. 6, 2002).

Easton sought damages and injunctive relief arising from the migration of contaminated groundwater onto his commercial property from adjacent land owned by Aramark. Despite the fact that the chemical solvents originated from Aramark’s property, the circuit court entered a final judgment in favor of Aramark, finding that there was no evidence to prove that Aramark actually caused the contamination.

On appeal, the First DCA reversed, holding that a plain reading of section 376.313, F.S., provides for a strict liability cause of action. Specifically, subsection (3) identifies defenses and provides that a party does not have to plead or prove negligence. The court looked to this language as an indication that a separate cause of action is created by the statute. The First District Court remanded the case to the trial court to apply section 376.313(3) as a strict liability statute, without requiring proof that Aramark caused the contamination on its property, and to determine whether the exceptions and defenses specified within the statute were applicable.

County’s motion for disqualification of agency head established legally sufficient showing of bias or prejudice. Charlotte County v. IMC-Phosphates Co., 27 Fla. L. Weekly D1917 (Fla. 1st DCA Aug. 22, 2002).

FDEP announced its intention to issue an environmental resource permit to IMC-Phosphates Company to conduct phosphate mining activities. Charlotte County and others opposed the mining and petitioned for a formal administrative hearing pursuant to sections 120.569 and 120.57, F. S. After a hearing, the ALJ issued an order recommending that the permit be issued.

FDEP Secretary David Struhs then issued a statement that, in the words of the First DCA, specifically addressed the merits of the ultimate decision: whether the agency had followed the applicable law in granting the permit. Charlotte County moved to disqualify Secretary Struhs based on his statement, arguing that it could not receive a fair and impartial hearing from the agency head on its exceptions to the recommended order. When the motion was denied, the county filed a petition for a writ of prohibition with the First DCA.

The First DCA stated that the practical recognition of the numerous roles played by the agency and agency head (investigator, prosecutor, adjudicator, and political spokesman) must be weighed against a reasonable fear on the part of the movant that it will not receive a fair and impartial hearing. The Court then determined that Secretary Struhs’ statement could only be classified as a statement made as part of his political duties. Specifically, the timing and content of the statement was inconsistent with his role as adjudicator, which he assumed immediately after the recommended order was issued. Thus, the agency head’s perceived need to act in his political capacity was outweighed by the need for parties to believe they are involved in a fair process. As a result, Charlotte County’s petition for writ of prohibition was granted; Secretary Struhs’ order denying the motion for disqualification was quashed; and, the cause was remanded with directions that the motion be granted.

Amended petition that sought an administrative hearing to challenge the issuance of a permit was improperly dismissed with prejudice. Accardi v. Dep’t of Envt’l Prot., 27 Fla. L. Weekly D1943 (Fla. 4th DCA Aug. 28, 2002).

The Accardis petitioned DEP for an administrative hearing to challenge DEP’s issuance of a coastal construction control line permit. DEP stated that a notification letter regarding issuance of the permit was sent to the Accardis, as adjacent property owners, on November 6, 2000, and that the Accardis failed to file a timely petition. The Accardis alleged that they never received the letter and only discovered that a permit had been issued on or about December 14, 2000.

The Accardis filed a petition requesting an administrative hearing on December 30, 2000, alleging that DEP failed to give them written notice, that the party receiving the permit failed to publish notice, and that issuance of the permit constituted an abuse of DEP’s discretion in violation of the Florida APA. DEP issued an Order dismissing the Petition with Leave to Amend on September 14, 2001. DEP concluded that notice was presumed to have been received by the Accardis pursuant to Rule 62-110.106(3), F.A.C., simply because DEP mailed the letter on November 6th.

The Accardis filed an amended petition on September 26, 2001, to which a Final Order of Dismissal with Prejudice was issued on October 24, 2001. DEP denied the hearing on the same grounds, and additionally found that an administrative hearing under section 120.57(1), F. S., was not appropriate because the amended petition stated that there were no disputed issues of material fact.
On appeal, the 4th DCA reversed DEP’s order of dismissal. The court concluded that the timeliness of the petition represented a disputed issue of fact. After reviewing the “plain meaning” of Rules 62-110.106(2) and 28-106.111(2), F.A.C., the court found no requirement that receipt of notice be irrefutably presumed following an allegation of mailing by DEP. Thus, a fact-finder must determine whether the Accardis received the written notice allegedly mailed by DEP.

The second issue on appeal was whether the Accardis properly alleged standing in their amended petition. The court found that DEP’s initial dismissal order with leave to amend did not put the Accardis on notice that their petition failed to allege standing. Therefore, the Accardis should have been given an opportunity to amend for standing when they were notified of the defect in the second dismissal order.

Statute does not require that joint planning areas for annexation be adopted in comprehensive plan prior to annexation; Department’s order upholding amendments to intergovernmental coordination elements of plan, as complying with chapter 163, affirmed. 1000 Friends of Fla., Inc. v. State Dep’t of Community Affairs, 27 Fla. L. Weekly D1941 (Fla. 4th DCA Aug. 28, 2002).

On April 10, 2002, the City of Stuart (Stuart) adopted two amendments to the intergovernmental coordination element of its comprehensive plan. The amendments authorized the city to coordinate “Joint Planning Areas” with the county, including establishing those areas “where annexation is likely to occur.” The amendments specified that the identified areas and policies would be incorporated into the city and county comprehensive plans or through formal adoption of an official agreement between Stuart and Martin County.

The Department of Community Affairs (Department) issued an order upholding the amendments. Specifically, the Department determined that the amendments were in compliance with Chapter 163, F. S., (the Growth Management Act), and that Act did not modify the applicable provisions of Chapter 171, F. S. (the Annexation Act). The Department concluded that “[n]either chapter mandates comprehensive planning as a prerequisite to annexation.” Also, the Department noted in its order that recognizing the validity of the inter-local agreements governing joint annexation planning areas does not interfere with adoption of comprehensive plan amendments at such time as the city assumes jurisdiction and has planning authority over the area.

The 4th DCA found that section 163.3177(6)(h)(1)(a), F. S., requires that the plan amendments include procedures to implement joint planning areas, but nothing in the statute mandates that all annexation planning agreements be by comprehensive plan amendment rather than through joint planning agreements. Thus, the 4th DCA affirmed the Department’s order, concluding that provision for additional public participation, or a requirement that comprehensive plans be amended as a prerequisite to joint planning and future annexation, is something that the legislature must address, if needed.

Developer had no cognizable substantive due process claim because its property interest in the building permits was created by state law, not the Constitution, and both the issuance and revocation of the building permits constituted executive, not legislative, acts. City of Pompano Beach v. Yardarm Rest., Inc., 27 Fla. L. Weekly D2208 (Fla. 4th DCA Oct. 9, 2002).

On May 1, 1973, the City of Pompano Beach (City) enacted an ordinance imposing a ten-story height restriction on new buildings within municipal limits. Yardarm subsequently applied for, and received, a special exception to construct an eighteen-story hotel. After a series of permit revocations, renewals, and re-revocations, Yardarm filed for bankruptcy protection and its property was sold through foreclosure.

Yardarm sued the City, and after a two-week trial, the trial court found that the City violated Yardarm’s procedural and substantive due process rights by its obstructionist conduct in connection with Yardarm’s application for building permits. The trial court also reinstated a previous federal takings claim.

On appeal, the 4th DCA held that the federal takings claim was identical to the state claim that had previously been adjudicated by the 4th DCA. Thus, the trial court erred in concluding that a taking had occurred. Further, the court found that Yardarm had been afforded full judicial procedures to challenge the City’s administrative decisions. Hence, Yardarm failed to show any procedural due process violations.

Yardarm asserted a constitutionally protected property right in the building permits arising from its substantial change of position in reliance on their initial issuance. Yardarm also asserted that the City lacked discretion to deny the permits. The City argued that Yardarm had no substantive due process protection in its building permits, and noted that the case law relied on by Yardarm and the trial court had been overruled in McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc), cert. denied, 513 U.S. 1110 (1995).

The 4th DCA agreed, noting that, under McKinney, the distinction between “legislative” and “executive” is key in the substantive due process analysis. Specifically, substantive due process protects against arbitrary legislative action, not arbitrary executive action. The court found that Yardarm presented no evidence that the City Commission or a City official with “final policy-making authority” acted against Yardarm, and that such action was taken pursuant to a policy adopted by the City Commission. In fact, the only land-use decision that the City Commission made as a body with respect to Yardarm’s project was the granting of the special exception, which made the project possible. Therefore, the 4th DCA concluded, as a matter of law, that Yardarm had no cognizable due process claim because its property interest in the building permits were created by state law, and both the issuance and revocation of the building permits constituted executive, not legislative, acts.

The Florida Supreme Court must incorporate statutory language into the appellate rules to give effect to provision of the Harris Act. Osceola County v. Dep’t of Envt’l Prot., 27 Fla. L. Weekly D2126 (Fla. 5th DCA Sept. 27, 2002).

The County denied Best Diversified’s (“Best”) zoning application that would allow it to use its property as a landfill. Likewise, DEP refused to issue Best a general permit that would allow a landfill on Best’s property. The trial court agreed with Best that the denials by the County and DEP “inordinately burdened” Best’s property and constituted an inverse condemnation of the property under Section 70.001, F. S. (Harris Act).

The County and DEP appealed to the 5th DCA, which sua sponte ordered the County and DEP to show cause why the appeal should not be dismissed for lack of jurisdiction. In response, the County and DEP asserted that the court had jurisdiction over the inverse condemnation claim under Fla. R. App. P. 9.130(a)(3)(C)(ii), which allows for an interlocutory appeal of an order that determines the right to immediate possession of property. Further, the County and DEP argued that the Harris Act specifically confers jurisdiction on the appellate court to hear an interlocutory appeal from an inordinate burden determinaton.
While acknowledging that previous appellate court decisions have relied upon Fla. R. App. P. 9.130(a)(3)(C)(iv) for jurisdiction to review non-final orders finding liability in inverse condemnation actions, the 5th DCA found that Fla. R. App. P. 9.130(a)(3)(C)(iv) was repealed in 2000 by amendment, thus, no longer providing a basis for jurisdiction. No other subdivision of Fla. R. App. P. 9.130 provides a basis for jurisdiction over the inverse condemnation portion of the appeal.

Acknowledging that Section 70.001(6)(a), F. S., states that a governmental entity may seek an interlocutory appeal of the court’s determination that an action of a governmental entity has inordinately burdened private property, the 5th DCA dismissed the appeal for lack of jurisdiction because the Florida Constitution (Art. V, § 4(b)) does not authorize the Legislature to provide for interlocutory appeals. As a result, an agency may not seek an interlocutory appeal of a court’s determination that an action of a governmental entity has resulted in an inordinate burden unless the Florida Supreme Court amends Fla. R. App. P. 9.130 to provide for such review.

Circuit court did not depart from essential elements of law in upholding Board of County Commissioners’ denial of request for rezoning. Mann v. Board of County Comm’rs, 27 Fla. L. Weekly D2165 (Fla. 5th DCA Oct. 4, 2002).

Betty Jean Mann (Mann) sought certiorari review of the order from the circuit court, acting in its appellate capacity, which denied her petition for writ of certiorari. Mann argued that the sole reason the County denied her rezoning request was the County Chairman’s “Initiative” through a policy that county staff should recommend denial of any rezoning that would substantially aggravate the overcrowded conditions of local schools. The County Chairman encouraged the Board to follow this new approach despite any School concurrency provision in the County’s Comprehensive Plan.

The circuit court in its opinion evaded the main concurrency issue finding that the Board’s denial was based, not on the Chairman’s Initiative, but on other inconsistencies in the Comprehensive Plan. The 5th DCA agreed and adopted the opinion of the circuit court denying Mann’s Petition for Writ of Certiorari.

Supreme Court finds that the Florida Fish and Wildlife Conservation Commission (FWCC) is bound by the APA in adopting rules regulating endangered or threatened species. Caribbean Conserv. Corp., et. al., vs. Florida Fish and Wildlife Conserv. Comm’n, (January 16, 2003 - Case No. SC01 - 1885).

Petitioners, numerous environmental groups and individuals, alleged that portions of the Florida Statutes requiring the FWCC to promulgate administrative rules pursuant to the APA (Chapter 120, F.S.) usurped the Constitutional authority of the FWCC to regulate marine life. Petitioners contended that the FWCC holds absolute constitutional authority in this area and that the Florida Legislature cannot require the FWCC to comply with the APA (Chapter 120, F.S.) when adopting regulations that affect species of marine life that are defined as endangered, threatened, or species of special concern.

In upholding the decision of the First DCA, the Supreme Court concluded that upon passage of Amendment 5 in the 1998 Constitutional revisions, the FWCC did inherit certain constitutionally derived regulatory and executive powers with respect to marine life, but that these powers are not absolute. The power to regulate endangered and threatened species of marine life remained initially with DEP and was subsequently transferred by legislative act in defining eh responsibilities of the newly created FWCC. The Court, therefore, upheld all challenged statutes with the exception of Section 20.331(6)(c)(1), F.S., which refers to marine species that are “of special concern.” Accordingly, all FWCC rules regulating endangered or threatened species must be adopted in accordance with the APA.

 

Gary K. Hunter, Jr. is a Shareholder with Hopping Green & Sams, P.A. in Tallahassee, Florida. He received his B.B.A. and J.D. from the University of Georgia. D. Kent Safriet is an Associate with Hopping Green & Sams, P.A. in Tallahassee, Florida. He received his B.S. from Clemson University and his J.D. from the University of South Carolina. Mr. Hunter and Mr. Safriet practice primarily in the areas of environmental and land use litigation and solid and hazardous waste regulation.