Limits on state and local zoning authority set forth in 47 U.S.C. § 332(c)(7) with respect to wireless communications facilities are not enforceable by an action for damages under 42 U.S.C. § 1983. Ranchos Palos Verdes, Calif. v. Abrams, 125 S.Ct. 1453, 161 L.Ed.2d 316 (U.S., March 22, 2005).

City denied Plaintiff a conditional use permit for a wireless communications antenna. Plaintiff filed suit against the City seeking injunctive relief based on 47 U.S.C. § 332(c)(7) plus money damages and attorney’s fees under 42 U.S.C. § 1983. The District Court, while granting injunctive relief under § 332(c)(7), held that this section provided an exclusive remedy for the City’s actions and refused to grant Plaintiff’s request for § 1983 damages. The Ninth Circuit affirmed the grant of injunctive relief but reversed and remanded on the § 1983 claim holding that the remedies in § 332(c)(7) were not exclusive.

The U.S. Supreme Court reversed, finding that while 47 U.S.C. § 332(c)(7) created individually enforceable rights, Congress did not intend that the judicial remedy expressly authorized by § 332(c)(7) would coexist with the alternative remedy available in a § 1983 action.

Department of Transportation (DOT) contractor hired to operate and manage wastewater treatment facilities does not have standing to bring administrative challenge to a consent order agreed upon by Department of Environmental Protection (DEP) and DOT in which DOT agreed to pay regulatory fines for contractors alleged violations. Dillard & Associates Consulting Engineers v. Florida Dep’t of Environmental Protection, 893 So. 2d 702 (Fla. 1st DCA 2005).

In 2001, DOT and Dillard Consulting Engineers (Dillard) entered into an agreement under which Dillard was to operate and manage five DOT wastewater treatment facilities. The agreement also required Dillard to pay regulatory fines and sanctions DOT incurred as a result of Dillard’s operation of the facilities. DEP later cited DOT for various violations of environmental statutes relating to Dillard’s operation of the water treatment facilities. DEP and DOT entered into a consent order in which DOT agreed to pay $45,000 in penalties for these violations.

Dillard filed a petition for a formal administrative hearing challenging this penalty. DEP dismissed the petition with prejudice based on Dillard’s lack of standing to bring the challenge despite the indemnification agreement between Dillard and DOT. Dillard appealed DEP’s decision to First DCA, arguing that it had standing because its agreement with DOT required it to pay the $45,000 assessed by DEP without an opportunity to dispute the propriety and amount of the penalty.

The First DCA affirmed, finding that Dillard lacked standing in an administrative context because Dillard was not bound by DEP’s consent order with DOT. The Court reasoned that the consent order was not binding on Dillard because Dillard did not have an opportunity to appear and defend DEP’s claim which DOT settled. The court also agreed with DEP that Dillard could contest its potential liability in circuit court rather than an administrative hearing.

While a circuit court has the discretion to determine the type, extent, duration and location of an easement provided by statutory way of necessity, the circuit court lacks the discretion to permit a use for that easement that is not provided for in § 704.01(2), F.S. Staten v. Gonzales-Falla, 2005 WL 608230 (Fla. 1st DCA 2005).

Plaintiff filed a complaint seeking a statutory way of necessity for the plaintiff’s landlocked parcel of land. Plaintiff alleged that he sought to use the landlocked property for timber raising, agricultural purposes, and dwellings. The defendant contended that while he had allowed the plaintiff to use the right of way in the past, the plaintiff had created a nuisance by allowing his property to be used as a hunt club. The trial court granted the easement, but did not restrict the easement to only those uses permitted in § 704.01(2), F.S. or mentioned in the plaintiff’s complaint.

The First DCA reversed and remanded, finding that when § 704.01(2), F.S. and § 704.04, F.S., are read in conjunction, the legislature had permitted a statutory way of necessity only for those uses enumerated in § 704.01(2), F.S., which are limited to dwelling(s), agricultural, timber raising/cutting, and stock raising purposes.

Nothing in Chapter 95, F.S. (Limitations of Actions), suggests that the legislature intended to apply a statute of limitations to quasi-judicial proceedings initiated pursuant to any administrative law. Sarasota County v. National City Bank of Cleveland, Ohio, 2005 WL 1125050 (Fla. 2d DCA 2005).

Because a house built on a waterfront parcel in 1980 was required by Federal Emergency Management Agency to have a base flood elevation of eleven feet; the ground level of the house could not be used for human occupancy. Between 1980 and 1990, a prior owner of the property had renovated the ground level of the home without a building permit. In 1990, the prior owner obtained a building permit to redesign the stairs leading to the main floor of the house. This construction was inspected and approved by county building inspectors. The property was sold in 1996 and put into a trust by the buyer, who died in 1998; her grandson began to occupy the property in 1999.

In 2001, the county commenced a code enforcement action against the trustee, alleging that the lack of a building permit for the construction that occurred between 1980 and 1990, as well as the construction of habitable space within the flood zone were a violation of a local ordinance and part I of Chapter 162, F.S. A special master concluded that the county had established two violations and that the statute of limitations set forth in Section 95.11(3)(c), F.S., did not bar the County's enforcement action. Section 95.11(3)(c), F.S., provides that “[a]n action founded on the design, planning, or construction of an improvement to real property” must be commenced within four years, “with the time running from the date of actual possession by the owner.” The special master based his conclusion on the fact that the grandson had lived in the house for fewer than four years at the time the County initiated its action and thus, four years “from the date of actual possession by the owner” had not passed.

The circuit court reviewed the final administrative order and reversed. The circuit court agreed that the statute of limitations in § 95.11, F.S., applied to the case but concluded that the period of limitations began in the early 1990s when the county first knew about the violations.

The district court reversed, holding that Chapter 95, F.S., applies only to civil actions or proceedings. Nothing in § 95.11(3)(c), F.S., suggests that the legislature intended it to apply to quasi-judicial proceedings initiated pursuant to any administrative law. In dicta, the court suggested a similar application for all of Chapter 95, F.S. The court declined to resolve the issue of whether an administrative enforcement proceeding could be barred by some legal theory relating to delayed enforcement. Thus, the court concluded that both the special master and the circuit court applied the wrong law in deciding this case.

A party deprived of a non-exclusive right to provide services to a parcel of land does not have standing based on suffering of a material injury under Florida’s “Appeal on Annexation or Contraction” statute, § 171.081, Fla. Stat. (2003). City of Auburndale v. Town of Polk City, Case No. 2D04-4441 (Fla. 2d DCA 2005).

City of Auburndale contracted to be responsible for the disposal of reclaimed water used to cool a power plant. Auburndale purchased 196 acres of undeveloped land within Polk City’s Water and Waste Water Reserve Area to use as a sprayfield for the disposal of the reclaimed water. Auburndale then approved an ordinance annexing the parcel and Polk City petitioned the circuit court for certiorari review of the ordinance. Auburndale contended that Polk City did not have standing to challenge the annexation but the circuit court concluded that Polk City had standing because the annexation would affect Polk City’s right to provide water and wastewater services to the property.

The appellate court reversed, finding that Polk City did not have standing under Florida’s “Appeal on Annexation or Contraction” statute which requires that “any party affected who believes that he or she will suffer material injury…may file a petition…seeking review for certiorari.” § 171.081, F.S. The court reasoned that while Polk City had statutory authorization to provide water and wastewater services to the property under § 180.06, F.S., the statute did not grant Polk City the exclusive authority to do so. This lack of exclusivity resulted in Polk City not being an “affected party” under § 171.081, F.S., and therefore, Polk City lacked standing to seek certiorari review.

Liability insurance policies issued to a county did not cover expenses incurred by the county in remedying pollution at an airport pursuant to a consent order and settlement agreement with the DEP, where the policy excluded costs arising out of governmental direction to remove pollutants. Miami-Dade County v. Aviation Office of America, 2005 WL 957185 (Fla. 3d DCA 2005).

After Miami-Dade County and DEP entered into a consent order and settlement agreement that addressed pollution at the airport, Miami-Dade attempted to recover the cost of the clean up from their insurance company. However, the County’s insurance policy included a provision that excluded “any loss, cost, or expense arising out of any governmental direction or request that the named insured test for, monitor, clean up, remove, contain, treat, detoxify, or neutralize pollutants.” The trial court granted summary judgment to the insurance company reasoning that the “government direction” exclusions (in insurance policies) have been enforced almost without exception in multiple U.S. jurisdictions. The Third DCA affirmed the trial court’s reasoning and entry of summary judgment against Miami-Dade County.

Trial court abused its discretion when it declined to issue a temporary injunction for violation of a zoning law because the government has a clear legal right to relief and the county has a clear public interest in ensuring compliance with the county’s ordinances and city zoning plan. Miami-Dade County v. Fernandez, 2005 WL 1109496 (Fla. 3d DCA 2005).

Appellees owned land that had been used as a for-profit commercial party business for several years. Those operations had created excessive noise and automobile traffic in the neighborhood. The land was located in a zoning district that permitted agricultural and limited residential uses, but did not authorize commercial uses. The county sought injunctive relief on the ground that the appellees did not have the proper “certificate of use” that is required for a commercial use. The trial court denied the county’s motion.

The appellate court reversed, holding that the standard for the issuance of a temporary injunction is relaxed when a temporary injunction is sought by a government entity to enforce its police powers. In such a case, irreparable harm is presumed and any alternative legal remedy is ignored. The court held that in order to receive a temporary injunction the county only need show a substantial likelihood of success on the merits and that the issuance of an injunction will serve the public interest.

The doctrine of equitable tolling may apply to an administrative complaint when the defendant takes action to contest the complaint although not tolling the statute of limitations as defined by the administrative code. Brown v. State of Florida, Dep’t of Financial Services, Case No. 4D04-855 (Fla. 4th DCA 2005).

The Department of Financial Services (DFS) received complaints regarding appellant’s licensed insurance practice. DFS mailed appellant a copy of an administrative complaint. A final order of revocation of the appellant’s insurance license was entered (via default) by DFS when appellant failed to request an administrative hearing within 21 days of receipt of a copy of the administrative complaint. Within a week of receiving the final order, appellant filed a letter and supporting affidavit asking that DFS set aside the default order. DFS denied this request despite the fact that appellant’s affidavit raised several factual issues.

The Fourth DCA reversed and remanded, applying the doctrine of “equitable tolling.” “Equitable tolling” serves to lessen the harsh effects of a strict, literal construction of administrative time limits and often focuses on the “plaintiffs excusable ignorance and the lack of prejudice to the defendant.” The Court found that the factual issues raised in appellant’s affidavit created a situation in which the doctrine of equitable tolling was applicable. Those factual issues included: the fact that appellant requested more information from DFS immediately after receiving the original complaint; that appellant believed that there was no need to request an administrative proceeding while awaiting a response from DFS; and that he was unable to analyze the allegations based upon him not knowing the identity of the customers making the complaint.

The court expressed no opinion as to whether the appellant would be able to prevail on the merits of his claims.



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.