The Florida Agricultural Lands and Practices Act, § 163.3162, F.S., does not prohibit counties from enforcing existing county ordinances regarding agricultural land, it only prohibits the adoption of new ordinances that do so. J-II Investments, Inc. v. Leon County, 2005 WL 1902569 (Fla. 1st DCA Aug. 11, 2005).

Leon County filed an action requesting a temporary and permanent injunction enjoining J-II from continued “developmental” activities in violation of a county ordinance which required a permit before development activities occur. J-II responded that the land was not being “developed,” but instead was being used for agricultural purposes, including aquaculture and livestock pasture. J-II argued that the County does not have regulatory authority over agricultural activity under § 163.3162, F.S. Under this section, a “county may not exercise any of its powers to adopt any ordinance, resolution, regulation, rule or policy to prohibit, restrict, regulate, or otherwise limit any activity of a bona fide farm operation on land .... “ The lower court granted the County summary judgment.

The First DCA affirmed the lower court’s entry of summary judgment and applied the plain language doctrine. Giving the statute its plain and obvious meaning, § 163.3162, F.S., prevents the county from adopting any new regulations related to agriculture. Consequently, the First DCA found that this statute applied only to newly enacted ordinances not existing ordinances. If the legislature had intended to divest counties of the ability to enforce existing statutes, it should have done so. Failing to do so, the statute cannot be said to preempt existing county regulations relating to agriculture.

City of Tampa did not have statutory or common law duty to warn homeowner of allegedly defective soil conditions in tract of land city designated as affordable housing. City neither owned or controlled the land, and therefore had no such obligation. Dudley v. City of Tampa, 2005 WL 1125018 (Fla. 2d DCA May 13, 2005)

Homeowners appealed a grant of partial summary judgment that dismissed their claim of negligence against the City of Tampa. The homeowners alleged that they and their homes suffered substantial damage due to defective soil conditions that the City was aware of but failed to disclose.

In 1987, in an effort to combat urban blight, the City developed an Affordable Housing Program in which the city would designate a tract of land and work with a not-for-profit developer to develop the site as affordable housing. In this particular tract, the engineering company hired by the designated not-for-profit developer to test the soil conditions reported that the soil was not suitable for home construction. However, the developer continued with the project, developed the land and sold it to a homebuilder who built the homes owned by the plaintiffs.

Because the claim against the City was for negligence, the Second DCA focused on whether the City had a duty to the homeowners under statute or common law. The Court did not identify any statutorily based duty. However, the Court concluded that it was more likely in this situation that a common law duty existed because when a governmental entity builds or takes control of property it has the same common law duties as a private landowner. Even recognizing this, the Court failed to impose a common law duty of care since the City did not own or develop the land at the time the alleged disclosure was required or at any other time. Because the City only facilitated the project by bringing together and advising various private entities, for the benefit of the community, the City had no duty on which plaintiffs could base a negligence claim.

City of Sanibel properly granted Verizon Wireless permission to erect a telecommunication tower on city owned land. Verizon Wireless Personal Communications, L.P. v. Sanctuary at Wulfert Point Community Ass’n, Inc., 2005 WL 2086343 (Fla. 2d DCA Aug. 31, 2005).

Homeowners’ association challenged Sanibel City Council’s approval of Verizon’s request to install a telecommunications tower on city-owned property. The City obtained the property as a result of an agreement that was entered into in 1982 between the City and Wulfert Point developers in resolution of litigation regarding the development of the Wulfert Point property. Under this settlement, the developer was required to design, build, and convey to the City a wastewater treatment plant and the City was required to enact a PUD ordinance that set development regulations and standards for the Wulfert Point property.

During the quasi-judicial hearings conducted by the City on Verizon’s tower application, the Homeowners objected to the proposed location as a violation of the PUD and settlement agreement. Despite these objections, the City, relying on a newly enacted telecommunication ordinance, approved the application that the Association challenged. The lower court quashed the City’s approval of Verizon’s application and Verizon appealed.

The Second DCA limited its review to whether the circuit court applied the correct law, and found that it had not when it looked to the settlement agreement and the PUD to settle the dispute. When the City Council approved the application for the tower, it was acting as a quasi-judicial board and in that capacity, the Council was applying existing law. Therefore, it did not have the authority to ignore, invalidate, or declare the telecommunications ordinance unenforceable. Thus, the City Council properly applied the telecommunication ordinance, which expressly superseded any contrary provisions in the land development code, including those contained in the PUD.

Department of Environmental Protection (DEP) cannot attach conditions to permits without holding an administrative hearing. Tuten v. State of Florida, Dep’t of Envt’l Protection, 906 So.2d 1202 (Fla. 4th DCA 2005).

Tuten submitted a permit to DEP requesting permission to dredge a canal to provide material for a house pad. In a prior case before the Fourth DCA, Tuten I, the DEP was ordered to issue Tuten a default permit following a hearing to determine if conditions should be imposed on the permit to protect the environment. Tuten v. State of Florida, Department of Environmental Protection (Tuten I), 819 So.2d 187 (Fla. 4th DCA 2002).

Two years after Tuten I was decided, the DEP had not issued a default permit nor scheduled an evidentiary hearing. Tuten filed a Motion to Show Cause (with the 4th DCA) as to why a default permit without conditions should not be granted due to the extensive delay. Eleven days after the motion was filed, DEP issued a permit with certain general and specific conditions believed necessary to protect the public and the environment. Under §§ 120.569 & 120.57, F.S., the default permit and all conditions set forth therein are final unless a petition for an administrative hearing is filed within 21 days of the permit being issued. Rather than timely filing the petition for an administrative hearing, Tuten appealed to the Fourth DCA.

The Fourth DCA reversed the issuance of the default permit and remanded the matter back to the DEP to hold an evidentiary hearing on the permit conditions. The Fourth DCA also ordered the DEP to follow the ruling issued in Tuten I, and conduct an administrative hearing prior to the issuance of the default permit. Absent clear permission, DEP did not have authority to alter the mandate of the Fourth DCA in Tuten I.

In an inverse condemnation action the property owner must be permitted to introduce expert witnesses to prove the fair value of the property. Savage v. Palm Beach County, 2005 WL 2086197 (Fla. 4th DCA 2005).

Unit 11 is a 1,760 acre tract of land in Palm Beach County that is highly susceptible to periodic flooding. In 1986, The Indian Trails Improvement District was given the task of constructing improvements to the existing drainage system to facilitate access and allow residential development. The area remained unsuitable for residential development because the district was unable to obtain the permits needed to construct the improvements.

In 1996, the County began to purchase parcels from willing sellers in the area. Four years later, a resolution was passed authorizing the County to acquire the land through various means, including condemnation. In October, 2003, Palm Beach County began condemnation proceedings against property owners in Unit 11. The subject litigation contests the value in several of the condemnations. The property owners hired two engineers who testified that the permits were not issued to the improvement district because the agencies in charge of permitting wanted the land to be used as a wildlife corridor. The land owner’s property appraiser testified that the only reason the area was blighted and valued well below the neighboring lands, was because of the failure to grant the required permits to allow development.

The lower court granted the County’s motion in limine which prevented admission of the engineers’ testimony. The court also excluded the appraiser’s testimony because it was based on the unsupported and speculative assumptions of the engineers. The property owners appealed arguing that the trial court erred by excluding their experts’ testimony.

The Fourth DCA agreed and reversed. The state and federal constitutions require that a property owner be fairly and adequately compensated for property that is taken. The Fourth DCA held that when the court denied the jury access to the testimony offered by the engineers, it excluded relevant testimony regarding the lost potential value of the property, how it occurred and when. The engineers’ testimony regarding the suitability of residential development in Unit 11, the permitting process, and whether the County was responsible for the blight was within their area of expertise and should have been admitted. Furthermore, this error was exacerbated when it was used to exclude the testimony of the property appraiser since that testimony was predicated on the testimony of the engineers. Therefore, the property owners were deprived of the opportunity to prove the fair value of their property.

County regulation of a private property owner’s landfill constituted a taking when the landfill could neither be used as a landfill or filled and converted to an alternate use. Osceola County v. Best Diversified, Inc., 2005 WL 1787438 (Fla. 5th DCA July 29, 2005).

Peter Huff & Best Diversified, Inc. operated a forty-acre construction and demolition debris landfill in Osceola County. Huff’s applications for conditional use were denied repeatedly beginning in 1996 because of numerous complaints by neighboring land owners of odors emanating from the landfill. In 1999, Huff sued the County and the Florida Department of Environmental Protection seeking damages under inverse condemnation and the Bert J. Harris, Jr. Private Property Rights Protection Act. Later that year, Huff withdrew his request for administrative review of the Department’s denial of his permit to operate his landfill. He also filed a “Notice of Acceptance of Agency Action” in which he accepted the defendants’ denial of his permit but reserved the right to maintain this action for inverse condemnation and the Private Property Rights Protection Act violation.

The lower court found that Huff was entitled to relief under the Harris Act and his inverse condemnation claim. Huff elected the remedy of inverse condemnation and was awarded $1,415,000.

On Appeal, the Fifth DCA found that the lower court erred in reviewing the action. If the County or the Department acted improperly, Huff should have sought appropriate administrative and judicial review of those actions. Failing to do so, Huff should not have been able to challenge the propriety of the denial of the conditional use approval and permit. The Fifth DCA then addressed whether Huff was entitled to compensation based on the denial of his requests for conditional use and a development permit. The Court stated that when the government regulation is to control a nuisance just compensation is not required.

The final question presented was whether there was a taking because Huff was denied an opportunity to close the landfill. Huff asserted that, after being denied the permit, he was trying to bring construction and demolition debris in to fill the landfill in preparation for a final cover of dirt and vegetation to close the landfill. The County responded that to bring any fill, even clean fill, would require a closure plan “approved by the department” (DEP). However, a DEP employee testified that the DEP does not regulate clean fill and therefore Huff’s attempt to bring clean fill onto the property to close down the landfill should not have been stopped by the County. Based on this testimony, the Fifth DCA confirmed the lower court’s ruling that Huff could neither reopen the landfill for use nor close it to make it available for other use. Therefore, the property had no economically beneficial use and Huff was entitled to compensation from the County for taking his property through inverse condemnation. The Fifth DCA reversed the judgment against DEP because it was the County’s actions, not DEP’s that prevented any use of the property.




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.