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COLUMNS
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Florida Caselaw Update |
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Gary K. Hunter,
Jr. & D. Kent Safriet |
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DEP’s construction of its coastal construction rules was implausible and
unreasonable.
Atlantis at Perdido Ass’n, Inc.v. Bobby L. Warner, 31 Fla. L. Weekly
D1827 (Fla. 1st DCA July 6, 2006)
Two neighboring condominium associations challenged DEP’s issuance of a Coastal
Construction Control Line Permit because the project was situated seaward of the
Coastal Construction Control Line (CCCL) and the “reasonably continuous and
uniform construction line.” Coastal construction cannot take place normally
seaward of the surveyed CCCL. However, construction is allowed, under certain
conditions, seaward of the CCCL when there are adjacent structures seaward of
the CCCL. The new construction, however, cannot be any further seaward than the
adjacent structures as measured by a “reasonably continuous and uniform
construction line.” This “line of construction” is determined by looking at
structures within 1500 feet on either side of the property.
The permit in this case authorized construction of a nine story condominium 45
feet seaward of the line of construction and 193 feet seaward of the CCCL. The
new condominium would replace an existing duplex and quadriplex on the property.
DEP argued that the project was not subject to the CCCL or “line of
construction” setbacks because the project constituted a “rebuilding” of the
existing structures (rather than new construction) and thus would not harm the
dune system.
Despite the fact that the project involved razing the two existing one story
structures and construction of a nine story condominium in a location that was
more landward than the foundations of the original structures, DEP argued the
project was “rebuilding” and authorized under its interpretation of its rules.
The Court disagreed, holding that DEP misconstrued the word “rebuilding” which
is plainly defined in DEP’s rules as a “substantial improvement of the existing
structure.” “Substantial improvement” is further defined as a situation when the
cost to repair a structure to its pre-damage condition is 50 percent or more of
the market value of the structure. The Court found the definition of
“rebuilding” was “clear and unambiguous” and that DEP’s interpretation was
“implausible and unreasonable.” The Court found that the construction authorized
under the permit was “new” construction and not “rebuilding.” As such, the Final
Order authorizing the permit was reversed.
Definition of blight per sections 163.330-.436, F.S., was not
unconstitutional and “structures” includes more than just “buildings.”
Fulmore v. Charlotte County,
31 Fla. L. Weekly D1490 (Fla. 2d DCA, May 31, 2006).
Charlotte County Board of County Commissioners adopted a resolution in May 2003
that authorized and directed a consultant to analyze whether an area in
unincorporated West Murdock constituted a slum or blighted area as defined in
the Community Redevelopment Act of 1969 (sections 163.330-.436, F.S.). The Board
held a public meeting at which uncontradicted evidence of blight was presented
and the Board unanimously approved a resolution that contained findings of
blight. The Board created the Murdock Village Community Redevelopment Agency to
carry out the redevelopment purposes of the Act, including the powers of eminent
domain. The Agency successfully negotiated the voluntary acquisition of some
lots and began filing eminent domain petitions in January 2004. Several affected
landowners filed a declaratory judgment action raising facial and as-applied
challenges to the Act; other landowners asserted the same challenges through
answers, affirmative defenses, and counterclaims.
The trial court, in response to the Agency’s motion, dismissed the action as it
related to a facial challenge and reserved ruling on the as-applied challenge.
After an evidentiary hearing, the trial court held the Act was not applied
unconstitutionally and allowed the takings. The landowners appealed arguing that
the condemnation did not serve a public purpose and that their property was not
blighted because the definition of blighted was unconstitutional, facially and
as-applied. The Court held the facial challenge failed because the landowners
acknowledged that several of the blight factors are objective and quantifiable,
and therefore it is not vague in all applications. Regarding the as-applied
challenge, the Court agreed with the Agency’s assertion that “structures”
encompasses more than simply “buildings” - it include roads and infrastructures.
Though the landowners did not attempt to show the findings of blight were not
supported by substantial competent evidence, the Court looked at each factor
found by the trial court to indicate blight and concluded the application of
blight to the particular circumstances by the Agency was constitutional.
Land previously annexed by City could still be affected by electorate of
charter county and Court was unconvinced citizens have right to adopt and repeal
land use ordinances.
Seminole County v. City of Winter Springs, 31 Fla. L. Weekly D1465 (Fla.
5th DCA May 26, 2006).
In 1994, Seminole County amended its Comprehensive Plan and established an
Urban/Rural boundary along the eastern edge of the City of Winter Springs to
protect rural and environmentally-sensitive lands from urban sprawl. This
boundary was not effective because Seminole County’s charter did not provide for
County preemption of conflicting municipal land use regulations and so the City
could simply annex land and change the land use designation once the property
was within the City’s jurisdiction. In response to continuous growth in rural
and environmentally-sensitive lands, the Seminole County Board of County
Commissioners proposed a charter amendment that would provide for County
preemption of land use regulation in the rural eastern area of the County,
thereby protecting that land even if annexed by the City. The charter amendment
was approved by the voters of Seminole County on November 2, 2004. The City
challenged the amendment.
The trial court held the amendment invalid because the ballot summary language
was misleading and the amendment violated the single subject rule. The trial
court based its holding on its finding that the amendment implicitly eliminated
the County electorates’ right to adopt or repeal ordinances regarding the
protected land by initiative and referendum because the amendment provides that
the Board of County Commissioners must approve all changes to the future land
use designations in the eastern area of the county.
The District Court found the trial court erred in accepting the City’s argument
that the charter amendment affected the county citizens’ right to adopt and
repeal land use ordinances related to the protected land. The Court was
unconvinced citizens could possess this right because the Local Government
Comprehensive Planning and Land Development Regulation Act expressly designates
the Board as the responsible body and thus a citizen initiative would not be
workable. Even if the right existed, the Court found the amendment did not
change this right because “enactments should not be read as amending
non-referenced provisions by implication.” Because the Court found no effect on
the citizens’ rights, it followed that the single subject rule was not violated.
However, the District Court agreed with the trial court that the “Rook property”
was included in the amendment. While the City had annexed the property, it had
not assumed regulatory control over the Rook property because it had not amended
its comprehensive plan to include the area. If the City had amended its
comprehensive plan, it would not make a difference because a charter county’s
electorate may preempt a city’s land use regulation by charter, without a dual
vote of the city’s electorate.
Constitutionality of the Bert J. Harris, Jr. Private Property Protection Act,
Section 70.001, F.S., is upheld.
Brevard County v. Charles R. Stack, 31 Fla. L. Weekly D1895 (Fla. 5th
DCA July 14, 2006)
Stack had purchased a four acre parcel of land zoned for commercial use for
investment purposes. Nearly fifteen years later in September 2000, Brevard
County adopted an “Ordinance” that prevented development in wetlands on
properties designated for commercial use.
Stack entered into a contract to sell the parcel to a Developer for $1.1
million. The proposed development plan was in conformance with all of the
County’s regulations except the Ordinance. The County denied the Developer’s
proposed development and the Developer in turn canceled the contract to purchase
the parcel from Stack. As a result, Stack filed a claim against the County under
the Bert J. Harris, Jr. Private Property Protection Act, Section 70.001, F.S.,
(Act).
Thereafter, a lawsuit was filed and the circuit court found, on summary
judgment, that the County was liable under the Act and reserved the issue of
damages for trial. On appeal, the County asserted that the Act was
unconstitutional as a violation of due process because it allows local
governments to contract away their police powers and then requires them to “buy
back” their ability to exercise those powers. The Court rejected these arguments
because the Act itself was a valid exercise of the State’s police power, in
protecting property rights, and did not affect a governmental entity’s inherent
power; rather, it simply required the government entity to provide relief in
certain circumstances. Additionally, because the Act established a new cause of
action it cannot be characterized as a “buy-back” of a government’s inherent
power nor can the Act constitute an illegal gift of public funds.
The Court rejected the County’s argument that the Act violates the separation of
powers doctrine because the Act did not create or enlarge the judiciary’s
interpretation of a taking but created a new cause of action independent of a
taking. The Court also rejected the County’s argument that the Act
unconstitutionally delegated legislative power to the judiciary because the Act
lacked standards, criteria, and conditions to guide the judiciary, finding that
the Act contained definitions, time periods, settlement options and other
guidance that would allow the Court to make the determinations required by the
Act. In sum, the Court found the County’s constitutional challenges lacked
merit.
However, the Court did find the circuit court’s order lacking because it did not
contain “findings” that Stack had “an existing use” or “vested right to a
specific use” of the parcel or that the parcel had been “inordinately burdened”
by the County’s Ordinance. As such, the case was remanded for the circuit court
to address the required findings.
Judge reverses vote on rehearing and majority now finds no inverse
condemnation when landfill was the cause of noxious odors; landfill constituted
a public nuisance; owner unwilling to follow DEP’s closure requirements.
Osceola County v. Best Diversified, Inc., 31 Fla. L. Weekly D2143 (Fla.
5th DCA, August 11, 2006).
The original opinion in this matter was published at 30 Fla. L. Weekly D1831
(July 29, 2005) and summarized in the September 2005 issue of the ELULS Section
Reporter. On rehearing, one judge changed its position thereby altering the
outcome of the previously reported decision.
Peter Huff and Best Diversified, Inc. (“Huff”) owned and operated a landfill in
Osceola County. While the property had been used as a landfill since the 1960s,
it was not regulated until the early 1990s. In 1991, the DEP granted Huff a
five-year permit to operate a construction and demolition debris facility at the
site and the Osceola Board of County Commissioners approved the activity as a
conditional use of the property, limited to five years. In 1996, Huff applied to
the DEP and County for new approvals to continue using the property as a
landfill. Both requests were denied. DEP found the operation to be a public
nuisance. Huff subsequently filed suit, claiming inverse condemnation and
bringing a Bert J. Harris Act suit.
The trial court determined that the County and DEP weighed the interests of
nearby residents against the interests of Huff and imposed impossible standards
on Huff. A final judgment was entered vesting title in the property to the
County and DEP and awarding Huff $1,415,000 in compensation. On motion for
rehearing, the District Court held Huff was not entitled to compensation from
the County and DEP since the request for a conditional use and permit were
denied based on a determination that the facility was the cause of noxious odors
and constituted a public nuisance. The Court also determined Huff should have
sought administrative review if the County or DEP acted improperly.
The remaining question was whether there was a taking as a consequence of the
County’s and DEP’s refusal to allow the landfill to be closed pursuant to DEP’s
requirements so the property could be put to another use. The court concluded
that there was no evidence that demonstrated that the County prevented Huff from
closing the landfill. Huff never attempted to follow DEP’s regulations in
closing the landfill, did not have the resources to close the landfill, and
never notified DEP of his intent to close the landfill in accordance with DEP’s
regulations. Huff only proposed re-opening and operating the landfill for
another three to five years to generate income, part of which would be used to
close the landfill properly at the end of the additional period.
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 law.
