The Bert J. Harris Act, Jr., Private Property Rights Protection Act (Harris Act), Section 70.001, Florida Statutes, waives sovereign immunity for a private property owner whose property rights are inordinately burdened, restricted, or limited by a governmental action. Royal World Metropolitan v. The City of Miami Beach, 28 Fla. L. Weekly D1620 (Fla. 3d DCA July 16, 2003)

     Appellant, Royal World Metropolitan (Royal World), challenged a set of City of Miami Beach ordinances that down-zoned Plaintiff’s property. The action was based on the Bert J. Harris Act and sought monetary damages for the “inordinate burden” imposed on the property by the ordinances. The trial court granted final summary judgment in favor of the City, finding that Section 13 of the Act did not affect the sovereign immunity of government and concluded that monetary damages were not available.

     The 3rd DCA concluded that the legislative intent behind the Harris Act was the protection of private property interests against “inordinately burdensome” governmental regulation, which did not amount to a constitutional taking. § 70.001(1), F.S. (1999). The court further found that a literal reading of Section 13 conflicted with the purpose and legislative intent of the Act. Accordingly, the Court held that a fair reading of Section 70.001(1), Florida Statutes, evidenced a legislative intent to waive sovereign immunity “as to a private property owner whose property rights are inordinately burdened, restricted, or limited by government actions where the governmental regulation does not rise to the level of a taking under the Florida and United States Constitutions.”

     The 3rd DCA’s ruling rejected the argument that Section 13 of the Harris Act prevents a private party from recovering monetary damages where that party can establish on inordinate burden to land as a result of government action.

Declaratory relief not available until Appellant first exhausts administrative remedies. Wilkinson v. Florida Fish and Wildlife Conservation Commission, 28 Fla. L. Weekly D1741 (Fla. 1st DCA July 28, 2003).

     Appellant, William D. Wilkinson, challenged the Lee County Manatee Protection Rule, Florida Administrative Code Rule 68C-22.005, after being cited for a criminal violation that was later changed to a civil violation. The administrative rule established speed zones in which the use of motorboats in waterways is restricted or prohibited in order to protect manatees from collisions with motorboats.

     Recognizing that the Florida Fish and Wildlife Conservation Commission (FWCC) regulation of manatees was subject to the requirements of Chapter 120, the Court found that the appellant could not circumvent that administrative process. The trial court further found that Wilkinson did not satisfy any of the bypass exceptions to the administrative process and thus was not entitled to declaratory relief without first exhausting his administrative remedies under Chapter 120. In addition to affirming the trial court’s summary judgment, the 1st DCA rejected Wilkinson’s argument that he lacked standing under Chapter 120 to initiate a rule challenge.

City Ordinance requiring permit for activities seaward of the established coastal construction line is valid and constitutional. GLA and Associates, Inc. v. City of Boca Raton, 28 Fla. L. Weekly D1636 (Fla. 4th DCA July 16, 2003).

     In January of 1999, a residential condominium developer, GLA and Associates, Inc. (GLA) applied for a permit from the Department of Environmental Protection (DEP) for construction -- including excavation of a dune -- seaward of the state coastal control line. Finding no significant adverse impact, DEP approved the permit.

     GLA began the construction without obtaining a City permit. The City cited GLA for violating the its ordinance that prohibited excavation and construction “seaward of the county coastal construction control line.” GLA then sought approval from the City for the dune rehabilitation work. However, the City denied the request based on the fact that the work involved reducing the dune elevation. When the City denied GLA’s request, the revoked GLA’s permit.

     GLA sued claiming that the state’s Beach and Shore Preservation Act (the Act), Chapter 161, Florida Statutes, § 161.053(4), preempted the City ordinance requiring a permit to excavate. And, GLA claimed, that since DEP did not approve the City’s ordinance, the state provision should apply over the ordinance. The trial court and the 4th DCA rejected this argument based on collateral estoppel since GLA’s predecessor had litigated the same issue previously. In dicta, the 4th DCA went on to discuss, and find, no preemption. The 4th DCA further rejected GLA’s argument that the City Code did not provide criteria to be applied when granting variances because as the criteria were found in a different section of the same chapter of the Code.

A Section 120.56(4) proceeding challenging an agency statement as an unadopted rule becomes moot after the agency complies with the requirements of section 120.56(4)(e). Osceola Fish Farmers Ass’n, Inc., v. DOAH, 27 Fla. L. Weekly D2525a (4th DCA November 20, 2002).

     Over the years, the Florida Fish and Wildlife Commission (FWCC) artificially lowered the water level of a lake rapidly, and by several feet, in a process called “lake drawdowns.” The FWCC then mechanically removes “muck” from the bottom of the lake. During these lake drawdowns, members of the Osceola Fish Farmers Association (Association) suffer severe reductions in the level of groundwater on their property, thereby allegedly incurring economic losses.

     In a related case, a South Florida Water Management District (District) employee submitted an affidavit stating that the District has consistently found that no water use permit is required to drawdown a water body. The Association filed suit under §120.56(4), F.S., claiming that the District’s statement violated §120.54(1)(a), F.S., because it was an unadopted rule. In response, the District initiated rulemaking to promulgate the “unadopted rule.” Thereafter, the ALJ stayed the unadopted rule challenge while the Association challenged the promulgated rule as an invalid exercise of legislative authority.

     The District’s proposed rule was found ultimately, to be an “invalid exercise of legislative authority.” The Association then requested that the ALJ proceed to final disposition of the §120.56(4), F.S., petition. However, the ALJ found that the petition was moot since the District had published the proposed rule and otherwise complied with the requirements of §120.56(4)(e), F.S.

     The issue before the 4th DCA, which was one of first impression, was whether an administrative proceeding challenging an agency statement under §120.56(4), F.S., as an unadopted rule becomes moot after the agency complies with the requirements of §120.56(4)(e), F.S., despite the subsequent rule being found invalid. The Court read §120.56(1)(a), F.S., together with §120.56(4), F.S., to find that the Legislature intended to force agencies into the rulemaking process whenever possible. Thus, in a §120.56(4), F.S., proceeding, an administrative agency can avoid an adverse decision and an award of attorney’s fees, if the agency publishes a proposed rule regarding the statement prior to the entry of a final order and continues expeditiously, in good faith to adopt the rule.

Where amendments to a land use regulation are adopted by referendum, the Florida Growth Management Act does not require the amendment to be reviewed by the local planning agency. City of Cocoa Beach v. Vacation Beach, Inc., 2003 WL 21946462 (Fla. 5th DCA Aug. 15, 2003).

     Citizens of the City of Cocoa Beach initiated petitions to amend its charter regarding density and height restrictions on development pursuant to §166.031, F.S. The two proposed amendments were approved by a majority vote. However, prior to the election, Vacation Beach brought suit challenging the enforcement of the proposed amendments. The lower court issued a temporary injunction enjoining the enforcement of the proposed amendments until further order of the court, but allowed the election to proceed.

     Vacation Beach argued that § 163.3194(2), F.S., of Florida's Growth Management Act (the Act), requires all amendments to a comprehensive plan to be referred to the local planning agency for review and recommendation. The proposed amendments at issue were not referred to the local planning agency, and the 5th DCA held that in this case, §163.3194(2), F.S., did not require such a referral. Although the Court found that the amendments amended the land use regulations (because the proposals provided that certain contrary ordinances be repealed), the amendments were not adopted by the “governing body” and thus were not invalid under § 163.3194(2), F.S. However, the Court emphasized that its holding should not be construed as a declaration that the charter amendments were valid - - merely that their adoption was not invalid under this specific section.

Owners of land failed to pursue potential administrative remedies for planning director's refusal to issue building permits based on highway concurrency deficiency, and therefore could not pursue court action for damages or for a taking based on failure to issue permits. Clay v. Monroe County, 849 So.2d 363 (Fla. 3d DCA May 14, 2003)

     Appellants, owners of residential lots in improved subdivisions of Big Pine Key in Monroe County (owners), each applied for a permit under Monroe County’s Rate of Growth Ordinance ("ROGO") to build a single family residence. Although the County approved each building permit application, the Monroe County Director of Planning refused to issue the building permit stating that transportation concurrency requirements had not been met because the level of service for U.S. Highway 1 was insufficient.

     In 1999, the owners sued seeking a writ of mandamus compelling the issuance of their building permits, declaratory judgment and damages arising out of the permanent and temporary takings of their land as a result of the withholding of the building permits. The trial court ruled in favor of Monroe County, and the owners appealed.

     While the case was pending, Monroe County initiated a proceeding for a determination of beneficial use on behalf of the owners and other property owners. In June of 2002, the County Commission approved the special master's recommendation to grant the permits. As a result, Monroe County claimed that this part of the appeal was now moot. However, the owners disagreed because one condition of the permit required the owners “to obtain an environmental coordination letter from the U.S. Fish and Wildlife Service prior to permit issuance.” The 3rd DCA rejected this argument finding that it had no legal basis to override the jurisdiction of any federal agency and concluded that the request for a writ of mandamus was mooted by the County’s issuance of the permits with the conditions.

     With respect to the owners’ takings claims, the Court found that the owners failed to exhaust all reasonably available administrative remedies. The Court noted two specific remedies that may have been available, namely, §§163.2180(6) and 163.3180(11), F.S., (de minimis impact exception to concurrency and five-part test for exception to concurrency). The Court summarily rejected the owners’ argument that there was an unlawful delegation of legislative authority because the planning director was merely enforcing an existing ordinance.

Because a Town Council’s quasi-judicial decision is not governed by the APA, the Town possesses the inherent power to reconsider its ruling and the time to invoke the circuit court’s review jurisdiction does not begin to run until a written order is filed with the lower tribunal. Smull v. The Town of Jupiter, 28 Fl. L. Weekly D 2064 (Fla. 4th DCA Sept. 3rd 2003).

     Appellant, Lester Smull, appealed to the Jupiter Town Council the Planning and Zoning Division’s denial of his application to build a canopy over his marina slip. The Town approved the building permit after Smull presented evidence at the quasi-judicial hearing that the condominium association had approved the canopy and had amended its declaration accordingly. However, no written ruling was filed with the Town Clerk and the condominium association later withdrew its approval of the building permit and vacated the amended declaration.

     The Town later voted to reconsider Smull’s building permit. Smull contended that the Town did not have jurisdiction to reconsider the approval of the permit and filed a writ of prohibition. The Court granted the Town’s motion for summary judgment finding that the Town had jurisdiction over the appeal at the time the rehearing was ordered.

     The general rule for administrative agencies states that “administrative agencies have inherent or implied power, comparable to that possessed by courts, to rehear or reopen a cause and reconsider its action or determination therein, where the proceeding is in essence a judicial one.” The 4th DCA found that this general rule applied to the Town Council because the Town’s decision was “essentially a judicial one” and subject to Rule 9.020(a)(3), Fla. R. App. P., and not the APA. Thus, the 4th DCA held that the Town had the inherent power to reconsider the approval of the building permit.

     The Court went on to find that the Town Council may reconsider its ruling until an appeal has been taken or the time to take an appeal has elapsed. The time period for taking an appeal is governed by Rule 9.100 (c), Fla. R. App. P., which requires petitions to review quasi-judicial agency action to be filed “within thirty days of rendition of the order.” An order is not rendered until it is signed and filed with the clerk. See Rule 9.020(h), Fla. R. App. P. Since the Town Council had not filed a signed order approving the building permit with the Town Clerk, the time to invoke the circuit court’s review jurisdiction had not started to run at the time that the Town decided to reconsider the approval. Therefore, the 4th DCA found that the Town had authority to rehear the decision to approve Smull’s building permit.


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.