St. John’s River Water Management District avoids judgment for equal protection violation despite a finding that the District set aside their public responsibilities in favor to favor of an environmental organization.  St. Johns River Water Management  Dist. v. Womack, 2005 WL 2253833 (Fla. 5^th DCA Sept. 16, 2005).

Womack owned 7.6 acres of land that included 4 acres of forested wetlands.  In an attempt to improve the property, Womack retained a professional engineer to prepare and obtain a “management and storage of surface waters permit” from the District.  It became apparent to the engineer, after submitting five different applications to resolve district “objections,” that the District simply was not going to permit the project.  No final action was taken on the application prepared by the engineer.  Womack, frustrated with the attempts, submitted his own self-made application which was denied through final action by the district.  Thereafter, Womack sued the District for a number of causes of action including equal protection violation.   The trial court specifically found that applications were denied because the Chairman of the Governing Board (who required that the applications be denied) colluded with and controlled District personnel.  This finding formed the basis of the equal protection judgment in favor of Womack.

Despite this finding and judgment, the appellate court found that the “self-made” application failed to satisfy the District’s regulations.  The Court noted that even Womack’s professional engineer testified that the self-made application was insufficient. 

Because the underlying application was insufficient, the District’ denial of the application was proper, despite the misconduct.  The Court implied that had Womack required that the District take final action on one of the engineer’s applications that met the District’s regulations, the judgment could have been affirmed.  However, the Court reluctantly reversed the judgment on the equal protection claim.

An administrative petition challenging comprehensive plan amendment must be made within 30 days of amendment’s effective date rather than the date the city commission votes to adopt the amendment.  Payne v. City of Miami, 2005 WL 3054154 (Fla. 3d DCA Nov. 16, 2005)

The Miami City Commission approved an ordinance adopting a comprehensive plan amendment on June 24, 2005.  Under the City’s Charter, the Ordinance becomes effective when the mayor signs the ordinance or 10 days after adoption if the mayor fails to veto the ordinance.  In this case, the ordinance became effective 10 days after adoption because the Mayor did not veto or approve the ordinance within 10 days of its adoption.  Thus, the ordinance became effective on Tuesday, July 6, 2005.  The petition challenging the comprehensive plan was filed on August 5, 2005, within thirty days of the ordinance’s effective date. 

The Court rejected the Department of Community Affairs’ conclusion that the term “local government adoption” in Section 163.3187(3)(a), Fla. Stat., meant 30 days from the City Commission’ adoption of the amendment.  The Court noted that it is the adoption of the amendment by the City (not the city commission) that is the triggering event.  In this case, the City of Miami did not adopt the amendment until the Mayor either signed the ordinance approving it or failed to act within 10 days.  Accordingly, the Court held the administrative challenge was timely.

Use of park property for a telecommunications tower violated a deed restriction limiting use of property only for “passive park purposes.” AT&T Wireless Services of Florida, Inc. v. WCI Communities, Inc., 30 Fla. L. Weekly D2130 (Fla. 4^th DCA September 7, 2005).

WCI Communities, Inc. (WCI) sued AT&T and the City of Coral Springs after the City permitted and AT&T constructed a telecommunications tower in a city park over WCI’s objections.  WCI is the successor in interest to the entity that granted the park property to the City.  The deed conveying the park property contained a restriction that the property “would be used and maintained solely for passive park purposes” unless written consent from grantor or its successor was obtained.

Despite this restriction, the City adopted a telecommunication tower ordinance that allowed towers to be located in parks and recreation areas over five acres in size.  The City later entered into a lease with AT&T of 1,600 sq. ft of park property for the construction of a tower and related equipment.  Thereafter, the City approved a building permit for the tower.  WCI later filed suit seeking injunctive relief and alleging that the tower violated the deed restriction.  The trial court granted injunctive relief finding that AT&T and the City, aware of the deed restriction, never sought WCI’s consent.  The court further found that the public was excluded from the area leased (as it was surrounded by a fence) and the city received financial benefit from the commercial venture.  Finding no ambiguity in the deed restriction the trial court found the use of the park for a telecommunications tower was not a “passive park purposes.”

On appeal, AT&T and the City fared no better.  The Court rejected the appellants’ attempt to define the issue of whether the tower is a passive use.  Rather the issue was whether the tower was a park purpose that was also a passive use.  The Court found that the tower provided no park purpose since the tower was located there to fill in AT&T’s telecommunication grid for monetary gain.  The appellants next argued that any violation was “de minimis” and injunctive relief was not available.  The Court found that even a minor violation of the deed restriction was still a violation because the scope of an easement is defined by what is granted, not by what is excluded.  While the Court recognized that in some instances that some incidental uses of residential properties that are restricted to residential use is permissible, that is the case only where the use is incidental to the primary use and so inconsequential that it is still in substantial harmony with the purpose of the covenants.  The Court found that the tower was not incidental to a “passive park purposes.” 

Lastly, the court affirmed the trial court’s injunctive relief which gave AT&T and the City two years to the remove and relocate the tower.

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.