Statutory Strict Liability for Environmental Contamination: Florida Supreme Court interprets §376.313(3), F.S., to create a new cause of action.  Aramark Uniform and Career Apparel, Inc. v. Easton, 29 Fla. L. Weekly S551 (Fla. 2004). 

     On October 7, 2004, the Florida Supreme Court held that §376.313(3), F.S. -- which allows private parties to sue for damages resulting from a discharge or other condition of pollution – created a new cause of action for strict liability, regardless of causation.  In this case, a private landowner sued Aramark for damages arising out of past and ongoing migration of contaminated groundwater from commercial property that Aramark purchased in 1986.

     The Court reasoned that because the statute departs from the common law by providing a damages remedy for the non‑negligent discharge of pollution, the Legislature intended to create a new cause of action rather than modifying existing ones.  The Court stated further that the statute’ s enumeration of specific and exclusive defenses provides additional evidence that the Legislature intended to place the burden on the owner of polluting property to demonstrate their non-liability by establishing one of the limited affirmative defenses set forth in the statute.  Finally, the Court relied on the title of the section, "Non‑exclusiveness of Remedies and Individual Cause of Action for Damages Under ss. 376.30 ‑ 376.319," and the statutes provision of attorney fees as evidence of the Legislature’s intent to create a new cause of action.

 

The Marketable Record Title Act (MRTA) cannot be used to extinguish statutory ways of necessity.  Blanton v. City of Pinellas Park, 29 Fla. L. Weekly S614 (Fla. 2004).

     The Supreme Court held that the Marketable Record Title Act (MRTA) cannot be used to extinguish statutory ways of necessity.  The Fifth DCA reached the same conclusion in Cirelli v. ENT, 29 Fla. L. Weekly D2350 (Fla. 5^th DCA 2004), which was decided the same week as Blanton.  The MRTA provides that “any person. . .vested with any estate in land of record for 30 years or more, shall have a marketable record title. . .free and clear of all claims.” 

     In prior rulings, the court had held that the MRTA can be used to extinguish common law ways of necessity.  Therefore, in this opinion, the court distinguished common law ways of necessity from the statutory ways of necessity at issue in Blanton.  Common law ways of necessity are established at the time of the transfer of title that creates the landlocked property.  And, if that title transfer occurrs prior to the root of title, the MRTA extinguishes any common law way of necessity.  However, a statutory way of necessity is “more akin to a privilege than to an interest in land, unless and until an action in the circuit court results in the establishment of an easement.”  Common law ways of necessity are discovered by researching the history of the title and require “unity of title.”  In contrast, the existence of a statutory way of necessity depends only on the current status of the property (whether it is landlocked, outside a municipality, and used for a particular purpose).  The court held, noting that its holding was consistent with public policy, that the MRTA cannot be used to extinguish statutory ways of necessity.

 

DRI changes, including those that do not constitute a “substantial deviation,” are subject to consistency with local comprehensive plans.  Bay Point Club, Inc. v. Bay County, 29 Fla. L. Weekly D2375 (1st DCA 2004). 

     In its en banc opinion issued on October 25, 2004, the First DCA affirmed an order of the Florida Land and Water Adjudicatory Commission (FLWAC) which held that once a DRI has been approved by a regional planning agency, any proposed changes do not become vested development rights (even though the changes are not substantial deviations) and are not exempt from local government review and approval.  This case involved a proposed change to a longstanding but continually evolving DRI development order.  The proposed change would have altered the use of several parcels, adding 66 units to the parcels at issue and allowing a taller high‑rise than was approved in the original development order.

     Vested rights, according to the Court, do not, and cannot, create entitlement to greater rights than those originally obtained in the DRI.  Accordingly, a proposed change jeopardizes vested rights because, by definition, the change seeks different development rights than those development rights originally approved.  In other words, DRIs previously authorized may be completed, but changes, even those which are not a "substantial deviation," are subject to approval and must comply with the local comprehensive plan.

     While the First DCA’s decision will generally be applicable to administrative reviews of DRI issues  (the case was filed as an administrative challenge to FLWAC pursuant to Section 380.07, F. S.), it leaves open the question of whether a §163.3215, F.S., challenge might be available outside the APA process to prevent the DRI development order from being authorized by the local government (§163.3215, F.S., allows suits to "prevent" the local government from taking action on a development order.)  This potentially opens the door under §163.3215, F.S., to a third party attack on proposed changes to a DRI development order by a party who may otherwise lack standing under §163.3187(8), F.S., and chapter 380, F.S.

 

Statutory amendment limiting standing, which was included in environmental legislation, did not apply retroactively and did not violate single subject requirement in Article III, Section 6 of the Florida Constitution.  Environmental Confederation of Southwest Florida v. DEP, 29 Fla. L. Weekly D2421 (Fla. 1^st DCA Oct. 28, 2004).

     The First DCA preserved the standing of public interest groups challenging an injection well permit where the proceeding was initiated during the period of time between the adoption of a statutory amendment restricting standing and codification of the amendment in the Florida Statutes.  The amendment to §403.412, F.S., limited a citizens’ ability to initiate a proceeding to those persons with “substantial interest.”  The amendment also defined “intervene” such that a citizen could join an ongoing proceeding only where another party has raised an appropriate challenge.  Prior to the amendment, a citizen could “intervene” by filing a pleading stating the permit at issue “would have the effect of impairing, pollution, or otherwise injuring the air, water, or other natural resources of the state.” § 403.412(5) (2001).

     The court determined that the statute did not apply retroactively.  “In order for a law to apply retroactively, the court must determine (1) if there is evidence that the legislature clearly intended for the law to be applied retroactively, and (2) if so, whether the retrospective application of that law is constitutionally permissible.”  (citing Pondella Hall for Hire v. Lamar, 866 So. 2d 719, 722 (Fla. 5^th DCA 2004).  Generally, “procedural statutes apply retroactively and substantive statutes apply prospectively.”  The court found that the statute did not apply retroactively because the Legislature did not clearly intend such an application and retroactive application would leave the aggrieved party without a remedy.  As a result, the court concluded that the public interest groups retained standing to challenge the injection well permit because their claim was filed before the amendment limiting standing was codified in the Florida Statutes.

     The public interest groups also challenged the amendment as a violation of Article III, section 6 of the Florida Constitution, which provides that laws “shall embrace but one subject and matter directly related to that subject.”  In reviewing such a challenge, the court must determine the subject of the statute, and then whether all provisions are “properly connected” to the single subject.  The First District found that the statutory provisions “relate to the protection of the environment and to the policies and practices of the DEP.”  In addition, “[i]t is logical for the Legislature to amend the standing requirements defining who may initiate a proceeding when it foresees a possibility for large amounts of litigation concerning the permits.”  Thus, the amendment is valid and does not violate the single subject requirement. 

 

In an action to void a deed restriction, a property owner cannot rely on changes that took place before acquisition of the property, but instead must prove the deed restrictions “no longer confer substantial value on the dominant estate.”  Marco Island Civic Assoc., Inc. v. Mazzini, 881 So. 2d 99 (Fla. 2d DCA Aug. 27, 2004). 

     The Second DCA held a party must show that the deed restrictions “no longer confer substantial value on the dominant estate” in order to demonstrate that a deed restriction is void.  Here, the Petitioner, who wanted to construct a medical building on his three adjoining lots, sought to void deed restrictions limiting the development of each lot to one detached single-family dwelling not to exceed two stories in height.  The trial court found the restrictions void because “there had been many changes in the character of the surrounding neighborhood that materially affected the restricted land and frustrated the object of those restrictions.”  The trial court based its finding on the fact that the Petitioner’s lots were situated between two commercial properties at the edge of the subdivision on a busy thoroughfare, and the medical building would function as an intermediate buffer between more intense commercial activity and the residential areas. 

     The Second DCA disagreed, finding that “a property owner clearly cannot rely on changes that took place before his or her acquisition of the property when seeking to remove a deed restriction. . .he should seek to have the deed restriction removed before purchasing the property.” (citing Wood v. Dozier, 464 So. 2d 1168, 1170 (Fla. 1985).  “The test to be applied is whether or not the original intent of the parties to the restrictive covenants can be reasonably carried out or whether the changed conditions are such as to make ineffective the original purpose of the restrictions.”  (citing Wahrendorff v. Moore, 93 So. 2d 720, 722 (Fla. 1957).  The court found the “highest and best use. . .is of little consequence” because the focus is on the dominant, rather than the servient estate when considering whether deed restrictions are no longer of substantial value.