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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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En banc Second DCA reverses course; Easement providing access to navigable
waters conveys riparian rights necessary for the “purpose” of the easement.
Brannon v. Boldt, 31 Fla. L. Weekly D1260 (2d DCA, January 24, 2007).
Subdivision landowners sought to enforce a 22 foot wide by 347 foot long
easement running over a neighboring landowner’s property to Boca Ciega Bay. The
scope of the easement was only defined by a plat which noted the easement was
reserved for “ingress, egress, and utilities.” The landowner of the servient
estate sought to extinguish the easement. While the language of the easement was
unambiguous, the question presented was whether the easement holders enjoyed the
full easement rights including the appurtenant riparian rights such as rights to
fish and view while located in the easement. The original panel decision (32
Fla. L. Weekly D289) concluded that by providing ingress and egress over land
reaching navigable waters the easement necessarily conveys all riparian rights
associated with those lands absent any express language limiting such riparian
rights.
The en banc court disagreed, holding instead that the “purpose” of the easement
in this case was simply to provide access to and from the navigable water and
not to convey all other riparian rights. Accordingly, the subdivision lot owners
could not use the easement for traditional riparian purposes, such as fishing or
viewing from the bank. Recognizing that there are numerous neighborhoods with
similar plat maps and easements throughout Florida, the en banc court certified
the issues as a question of great public importance.
Conducting business activities in a jurisdiction does not result in standing
to challenge consistency of that jurisdiction’s comprehensive plan.
Potiris v. Department of Community Affairs, 32 Fla. L. Weekly D172 (Fla. 4th
DCA Jan. 3, 2007).
Potiris, a land use planner, claiming §163.3184(1)(a), F.S., affected person’s
status as a person who owned or operated a business within the boundaries of the
Village of Wellington, challenged certain amendments to the Village of
Wellington’s Comprehensive Plan. The court rejected Potiris’s argument – that by
simply providing land planning services to properties in the Village, he was
“operating a business” for purposes of §163.3184, F.S., standing. Conducting
business in the Village is different than “owning or operating a business.”
Accordingly, the DCA affirmed the dismissal for lack of standing.
DCA policy of reviewing “aspirational” comprehensive plan amendments upheld.
Indian Trail Improvement Dist. v. Department of Community Affairs, 946 So.2d
640 (Fla. 4th DCA 2007)
In 2004, Palm Beach County amended its Comprehensive Plan to designate itself as
the provider of freshwater and wastewater services in the unincorporated rural
areas. The Indian Trail Improvement District (District), a special taxing
district, challenged this amendment because the District provided water and
wastewater services to properties within the areas addressed by the plan
amendments. The County challenged the District’s standing. The Court concluded
that the District was adversely affected since it was providing the water
services prior to the plan amendments.
The Court also found no error with DCA’s “policy of review that does not always
require ‘the same amount or type of data for all [CLUP] amendments.’” For policy
amendments or “aspirational amendments” that do not have an immediate impact on
the provision of services or require capital improvement expenditures, it is
DCA’s policy to require “less data and analysis than might otherwise be
required.” The Court approved of DCA’s review process noting that “some matters
of policy are obviously not susceptible to numerical interpretation.”
DEP’s water reservation rule upheld by First DCA.
Association of Florida Community Developers v. Department of Envt’l Protection,
31 Fla. L. Weekly D3099 (Fla. 1st DCA Dec. 12, 2006).
The Association of Florida Community Developers and Florida Home Builders
Association challenged proposed rule 62-40.474, F.A.C., relating to water
reservations. The challenges alleged that proposed rule 62-40.474, F.A.C.,
enlarged, modified or contravened section 373.223(4), Fla. Stat., which provides
that DEP or the water management districts may reserve water from permit
applicants for the “protection of fish and wildlife or the public health and
safety.” While portions of the rule could be interpreted to allow water
reservations generally, the District Court recognized that each provision of the
proposed rule was limited to reservations for the “protection of fish and
wildlife or the public health and safety.” Accordingly, it affirmed the ALJ’s
Final Order upholding the proposed rule.
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.
