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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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Association lacks standing to challenge DEP’s denial of Corps’ permit
application to dredge the Apalachicola River.
Mid-Chattahoochee River Users
v. Florida Dep’t of Envt’l Protection, 2006 WL 3371566 (Fla. 1st DCA Nov.
22, 2006)
Following DEP’s denial of the U.S. Army Corps of Engineers’ application for a
permit to dredge the Apalachicola River, an association of public and private
corporations in Alabama and Georgia (River Users) filed a petition for an
administrative hearing challenging the denial. The Corps did not file a
challenge. While the River Users generally alleged that they would suffer
immediate harm because some members intended to ship items on the River in the
future, the real harm was economic in nature. The River Users alleged that
having the ability to ship items on the River provided a basis to negotiate more
favorable terms for other modes of transportation (e.g., rail and trucking).
DEP dismissed the petition for lack of standing and the River Users appealed. On
appeal, the First District Court affirmed the Final Order holding that the
alleged economic injury failed the second prong of the Agrico Chem. Co. v. Dep’t
of Envt’l Reg., 406 So.2d 478 (Fla. 2d DCA 1981), standing test which requires
that the substantial injury complained of be “of the type or nature that the
proceeding is designed to protect.” In this case, the court determined that the
interest protected by a proceeding for a wetland resource permit under Chapter
373, F.S., does not include economic impacts. The Court summarized that the
“intent of Agrico was to preclude parties from intervening in a proceeding where
those parties’ substantial interest are totally unrelated to the issues to be
resolved in the administrative proceedings.” Accordingly, the Court concluded
“that economic injury is not the type of injury that the permitting proceeding
under Chapter 373 was designed to protect.”
City Charter amendments that, if adopted by the electorate, would require
voter approval for certain changes to the City’s land use and community
development plans were not preempted by Chapter 163, F.S.
Citizens for
Responsible Growth v. City of St. Pete Beach, 31 Fla. L. Weekly D2196 (Fla.
2d DCA Aug. 18, 2006)
Citizens for Responsible Growth (“Citizens”) collected the requisite number of
signatures to place four proposed amendments to the City Charter on the ballot
for approval by the electorate. The four amendments would require: 1) that a
comprehensive plan or comprehensive plan amendment that affects 6 or more
parcels be approved by the electorate in a referendum; 2) unanimous city
commission approval of a comprehensive plan or comprehensive plan amendment that
affects 5 or fewer parcels; 3) a community redevelopment plan, as defined in
Section 163, F.S., be submitted to a referendum; and 4) any amendment to the
City’s land development code that increases allowable height restrictions also
be submitted to a referendum.
Instead of placing the four proposed amendments on the ballot, the City filed an
action for declaratory judgment asserting that the amendments were preempted by
Chapter 163, F.S. On cross-appeal from the circuit court’s order holding three
of the four amendments unconstitutional, the District Court found all four
amendments proper and should have been allowed on the ballot. The City argued
that the second proposed amendment was an improper “referendum” prohibited by
Section 163.3167(12), F.S., which forbids referendums with respect to
comprehensive plans or comprehensive plan amendments that affect 5 or fewer
parcels. The Court held that the procedural requirement requiring unanimous vote
of the commission is not a prohibited “referendum.”
With respect to the other three proposed amendments, the Court found that they
were not preempted by Chapter 163, F.S., because the amendments could co-exist
with the statutory framework. Finally, the Court, refusing to pass upon the
wisdom of the amendment, noted that the third and fourth proposed amendments
appeared to be advisory in nature rather than mandatory.
Nuisance Abatement Board violated due process by limiting ability to present
evidence to support a defense.
Powell v. City of Sarasota, 31 Fla. L.
Weekly D2349 (Fla. 2d DCA Sept. 13, 2006).
The Powells, owners of several rental units in the City of Sarasota, were cited
for allowing a public nuisance at one of their properties as a result of three
“controlled” drug buys by the City Police Department. After the controlled drug
buys, the Police executed a search warrant on the property but did not find
evidence of any drugs. The Powells were not informed of the anonymous complaints
received by the Police concerning the drug activity until after the execution of
the search warrant.
At the Nuisance Abatement Board hearing, the Powells attempted to present
evidence in support of their defense of selective enforcement arguing that the
City’s nuisance abatement efforts were targeting primarily African-American
neighborhoods. The Board refused to hear the evidence or allow a proffer of the
excluded evidence. The circuit court rejected the Powells’ claim that they were
denied due process. On certiorari review, the District Court quashed the Board’s
order, finding that the Board failed to comply with Section 893.138(3), F.S.,
which states that the property owner “shall have an opportunity to present
evidence in his or her defense.” Because the equal protection clause forbids
selective enforcement of laws based on race, the Powells were legally entitled
to present evidence in support of their defense.
A development order is “rendered” for purpose of the 30-day time period to
challenge a development order under Section 163.3215, F.S., when the City Clerk
enters the order, not when the Mayor signs the order.
5220 Biscayne
Boulevard, LLC v. Stebbins, 31 Fla. L. Weekly D2358 (Fla. 3d DCA Sept. 13,
2006)
A developer applied for a development order (in this case a major use special
permit) from the City of Miami to construct a high-rise condominium. The City
Commission approved the development order at its December 15, 2005 meeting. The
Mayor signed the development order on December 20, 2005, and it was recorded by
the City Clerk on December 21, 2005. Pursuant to Section 163.3215, F.S.,
Stebbins, inter alia, filed a complaint on January 20, 2006 (31 days after the
Mayor signed the order and 30 days after it was recorded), alleging that the
development order was inconsistent with the comprehensive plan.
The City moved to dismiss arguing that the challenge was filed 31 days after its
“rendition.” Following denial of the motion by the circuit court, the City
sought a writ of prohibition from the District Court. Section 163.3215, F.S.,
was amended in 2002 to provide that a complaint “must be filed no later than 30
days following the rendition of a development order.”
In construing this provision – which was amended in 2002 to simplify the time
limit – the District Court held that the term “rendition” should be calculated
in accordance with the Florida Rules of Appellate Procedure as indicated by the
legislative history. Accordingly, pursuant to Rule 9.020(h), Fla. R. App. P., an
order is rendered when the signed order is filed with the clerk of the lower
tribunal. In the context of Section 163.3215, F.S., a development order is
rendered when the final signed order is filed with the clerk. Accordingly, the
District Court denied the City’s writ of prohibition finding the complaint was
timely filed.
An expert may not testify on direct examination that he or she relied upon
consultation with other experts to form his or her opinion.
Linn v. Fossum,
31 Fla. L. Weekly S741 (Fla. Nov. 2, 2006).
Although a medical malpractice case, the rule of law clarified in this case is
equally important to land use practitioners who utilize experts to testify in
administrative and judicial proceedings. In this case, the expert doctor
testified that the defendant doctor complied with the prevailing professional
standard of care. The basis of this expert’s opinion was several “curb-side”
conferences with other doctors she regarded as representative of the medical
community. None of the doctors to whom the expert doctor “consulted” testified.
On appeal, the Supreme Court held that the expert’s opinion testimony was
inadmissible because “it impermissibly permits the testifying experts to bolster
their opinions and creates the danger that testifying experts will serve as
conduits for the opinions of others who are not subject to cross-examination.”
Id. at S741.
The Court noted specifically that its opinion does not in any way preclude an
expert from relying on “facts or data” that are not otherwise admissible if the
facts and data are a type reasonably relied upon by experts in the field.” Id.
In summary, the Court stated “[w]e hold as a matter of law that under the
Florida Evidence Code an expert is not permitted to testify on direct
examination that the expert relied on consultations with colleagues or other
experts in reaching his or her opinion.” Id. at S743.
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.
