Waiver of Sovereign Immunity Cannot Be Implied. City of Gainesville v. State Dep’t of Transp., 30 Fla. L. Weekly D2851 (1st DCA, December 19, 2005).

The City of Gainesville sought to collect stormwater utility fees from the Department of Transportation (DOT) under Chapter 403, F.S. The City argued that since DOT is a “person” within the meaning of chapter 180, F.S., its sovereign immunity was waived. Following a dismissal with prejudice by the trial court, the District Court affirmed recognizing that statutes allegedly waiving sovereign immunity are strictly interpreted in favor of the state.

The Court reiterated that a statutory waiver of sovereign immunity must be clear and unequivocal or contained in a written contract. Considering that Chapter 180, F.S., did not include a waiver for stormwater utility fees within its scope, the Court refused to rewrite that chapter to include such. Additionally, because no written contract existed the court affirmed the dismissal with prejudice.

Modification To Development Application Following Adoption Of New Review Criteria Subjects Application To The Newly Adopted Criteria. Morningside Civic Ass'n, Inc. v. City of Miami Comm'n, 917 So.2d 293 (3d DCA 2005)

The City approved a zoning resolution granting a developer a major use special permit. Opponents of the development, Morningside, filed a petition for writ of certiorari challenging the zoning resolution. At issue was which version of the zoning ordinance applied to the application. The original application was filed in 2003 and was recommended for denial by the Planning Advisory Board in December 2003.

The developer then submitted a “substantially modified” application on February 10, 2004 after the rezoning ordinance was amended and took effect in January, 2004. The new zoning ordinance required the City to make written findings with respect to eight criteria. While the City did not make such findings in the zoning resolution it stated in the resolution that the application was “complete” on February 10, 2004. On appeal from the circuit court’s refusal to grant certiorari, the District Court found that the circuit court had applied the law incorrectly. The Court held the proper version of the zoning ordinance was the amended 2004 version requiring written findings rather than the pre-2004 version applied by the circuit court. Because the City failed to make written findings relating to the criteria as required by the amended 2004 ordinance, the Court quashed the circuit court’s order.

The Statute Of Limitations To File Suit Under The Bert J. Harris, Jr., Private Property Rights Protection Act, Section 70.001, F.S., Is Four Years. Russo Assoc., Inc. v. City of Dania Beach Code Enforcement Bd., 31 Fla. L. Weekly D418 (4th DCA Feb. 8, 2006).

Following the City’s enforcement of a zoning change that prohibited Plaintiff’s existing use of the property, Plaintiff filed a Harris Act claim with the City on October 10, 2002 and later filed suit on February 6, 2004. The City moved to dismiss the complaint arguing that the Act’s statute of limitations required a suit, rather than claim, be filed “less than one year after the subject ordinance was first applied by the City to Plaintiff’s Property.” The trial court agreed and dismissed the complaint with prejudice.

On appeal, the Court reversed. The Court noted that Section 70.001(11), F.S., requires only that a Harris Act claim be presented to the government within one year from the date the offending regulation was applied by the government. The Court rejected the City’s argument that this provision was also a one year statute of limitations in light of the Act’s requirement that a lawsuit cannot be filed until a government has provided a written settlement offer and ripeness decision to the claimant, which it has 180 days to do. The City’s interpretation would effectively create a six-month statute of limitation.

Recognizing the intent of the Act was to create clarity and simplicity in bringing claims and lawsuits under the Act, the Court recognized the one year time frame was simply a pre-suit condition to encourage dialogue between the property owner and government to effect a settlement. The Court held that the statute of limitations for filing a lawsuit (assuming the pre-suit conditions were met within the first year) was four years from the date the regulation was first applied by the governmental entity.

Court Finds Harris Act Claim And Takings Claim Frivolous And Enforces PUD Conditions To Restore And Preserve The Big Blue Reserve. Palm Beach Polo, Inc. v. Village of Wellington, 31 Fla. L. Weekly D202 (4th DCA, January 18, 2006)

After the Village of Wellington filed a declaratory action to force Palm Beach Polo, Inc. (Polo) to restore and enhance an area known as Big Blue Reserve (Big Blue), Polo counterclaimed alleging inverse condemnation and a violation of the Bert J. Harris, Jr., Private Property Rights Protection Act, Section 70.001, F.S. Polo’s predecessors in interest entered into a Planned Unit Development (PUD) with the County which was approved with conditions that Big Blue be enhanced and preserved. Development density from Big Blue (~92 acres) was transferred to other parcels within the PUD. Following additional modifications to the PUD, it was agreed by Polo’s predecessors that the County’s Comprehensive Plan be amended to designate Big Blue as open Space-Reserve (OS-R).

Wellington was incorporated after Polo purchased the PUD (which included Big Blue) out of bankruptcy in 1993. In 1999, Wellington adopted its own Comprehensive Plan which essentially followed the County Comprehensive Plan and included a “conservation” designation for Big Blue. Polo objected to this designation even though it imposed no further limitations on Big Blue than the County’s original designation of OS-R and the PUD. Polo then filed a Harris Act claim. Wellington responded that no change would be made to the Comprehensive Plan and then sued Polo to enforce the conditions of the PUD to restore Big Blue. The Court rejected Polo’s Harris Act claim as frivolous because the “conservation” designation in Wellington’s Comprehensive Plan “changed nothing regarding the property.”

The Court further rejected Polo’s claims that the PUD conditions agreed to by Polo’s predecessors were unconstitutionally vague and overly broad. In light of testimony from Polo’s predecessor and the County, it was clear that the meaning of all terms were well understood by all parties. Therefore, they were not vague or overly broad. Finally the Court summarily dismissed the takings claim because the flooding of Big Blue is precisely what Polo’s predecessor bargained for in exchange for the transfer of development rights to another portion of the PUD.

Proposed Annexation Was Not “Contiguous” Where 1.6% Of Boundary Bordered City. Pre-Annexation Agreement Was Invalid As It Was Illegal Contract Zoning. County of Volusia v. City of Deltona, 31 Fla. L. Weekly D233 (5th DCA, January 20, 2006)

Volusia County challenged the City of Deltona’s voluntary annexation of three parcels of land. Following the circuit court’s upholding of the annexation, the District quashed the circuit court order finding it failed to follow the essential requirements of law on two issues.

The Court first found that the circuit court applied the law incorrectly when it found the territory to be annexed was “contiguous” to the City. The three parcels proposed for annexation included one ten (10) acre parcel, one 339 acre parcel and one 4,626 acre parcel. Only the ten acre parcel actually bordered the City with its entire western border of 350 feet adjoining the City. The circuit court accepted the statutory contiguity requirement because a substantial part of “a boundary” of a parcel to be annexed adjoined the City in a substantial sense.

The District Court held that the lower court’s contiguity interpretation was flawed because Section 171.031(11), F.S., requires “a substantial part of the boundary of the territory to be annexed” by the City be coterminous with the City boundary. Thus, the analysis should focus on the entire territory to be annexed rather than the mere parcel adjoining the City. In this case, the Court found that the territory to be annexed had a western boundary of 22,116 feet, only 350 feet of which (that of the ten acre parcel) adjoined the City. The Court then concluded that since only 1.6% of the boundary of the territory was contiguous with the City border, that was not “substantial,” and thus did not meet the contiguity requirement. The District Court also concluded that the efforts of the City and owners which “attempted shoestring annexation using a narrow corridor to connect the municipality to an outlying, noncontiguous area . . . defeats the basic concept of a municipal corporation of unity and compactness.”

In what could be construed as dicta, the Court also suggested that the “Pre-Annexation Agreement” with the owner of the 4,626 acre parcel was illegal contract zoning by virtue of its delegation of the City’s police power. The agreement placed substantial obligations on the City, including a commitment to “use its best efforts to provide for agricultural and conservation zoning until ownership of the property changed and the property was rezoned at the owner’s request.” The Court quashed the order of the circuit court that denied certiorari and remanded for further proceedings.


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, land use and property rights litigation.