April 2008

Note: Status of cases is as of February 21, 2008.  Readers are encouraged to advise the authors of pending appeals that should be included.

• FLORIDA SUPREME COURT
• FIRST DCA
• SECOND DCA
• THIRD DCA
• FOURTH DCA
• FIFTH DCA

FLORIDA SUPREME COURT

Florida Department of Environmental Protection, et al. v. Save Our Beaches, Inc, et al., Case No. SC06-1447 and 1449. Petition to review decision of First DCA relating to DEP's final order allowing the renourishment of 6.9 miles of beaches and dunes within the City of Destin and Walton County. 31 Fla. L. Weekly D1173. The First DCA certified as a question of great public importance whether the Beach and Shore Preservation Act (Part I of Chapter 161) has been unconstitutionally applied so as to deprive the members of Stop the Beach Renourishment, Inc., of their riparian rights without just compensation for the property taken, so that the exception provided in Rule 18-21.004(3), exempting satisfactory evidence of sufficient upland interest if the activities do not unreasonably infringe on riparian rights, does not apply. Status: Oral argument held on April 19.

Advisory Opinion to the Attorney General re: Referenda Required for Adoption and Amendment of Local Government Comprehensive Land Use Plans, Case No. SC06-521. The Attorney General has asked the Court for an advisory opinion as to whether the financial impact statement prepared by the Financial Impact Estimating Conference on the constitutional amendment, proposed by initiative petition and entitled "Referenda Required for Adoption and Amendment of Local Government Comprehensive Land Use Plans," is in accordance with section 100.371, Florida Statutes. Status: On July 12, 2007, the Court remanded the financial impact statement for the petition to the Financial Impact Estimating Conference for redrafting because the statement did not meet statutory requirements in its current form. On July 27, 2007, the conference forwarded a redrafted financial impact statement. On November 27, 2007, the Court issued a briefing schedule.

Steven W. Boldt v. Patrick W. Brannon and Kathryn C. Brannon, Case No.SC07-563. Appeal from the Second DCA concluding that holders of an easement by implication to access the water did not have the right to fish or remain on the property for extended periods. The Second DCA interpreted Cartish v. Soper, 157 So.2d 150 (Fla. 2d DCA 1963), and considered the nature and extent of riparian rights transferred to lot owners as an easement by implication but not those rights transferred in an express easement. Status: Dismissed on November 1, 2007, 32 Fla. L. Weekly S684a; jurisdiction improvidently granted.

Department of Environmental Protection v. Contractpoint Florida Parks, LLC, Case No. SC07-1131. Petition for Review of First DCA decision finding that, absent legislative intent to do so, Section 11.066, F.S., did not "overturn twenty-two years of case law subjecting the state to breach of contract actions." Section 11.066, provides that the state or its agencies shall not be required to pay monetary damages except pursuant to an appropriation made by law. The court certified the following question to be one of great public importance: "Does Section 11.066, Fla. Stat., apply where judgments have been entered against the state or one of its agencies in a contract action?" 32 Fla. L. Weekly D1416b. Status: Petition for Review granted July 9; oral argument held December 5, 2007.
 

FIRST DCA

Don and Pamela Ashley v. State of Florida Administration Commission, et al, Case No. 1D07-95. Appeal from final order determining amendments to Franklin County Comprehensive Plan were not in compliance as defined in § 163.3184 (1)(b), Florida Statutes. The order also required the County to adopt remedial measures regarding capital improvements, affordable housing, coastal high hazard area and planning periods. Status: Remanded on December 31, 2007, 33 Fla. L. Weekly D97a, motion for rehearing filed on January 14.

Brenda D. Dickinson and Vicki A. Woolridge v. Division of Legislative Information of the Offices of Legislative Services., et al, Case No. 1D073827. Appeal from final judgment rejecting a constitutional challenge to executive and legislative lobbyist compensation reporting requirements. Status: Answer brief filed January 11.
 

SECOND DCA

Peace River/Manasota Regional Water Supply v. State, Department of Environmental Protection, Case No. 2D06-3891 and 2D07-3116 (consolidated cases). Appeals from final order granting environmental resource permit to Mosaic for Ona Mine. Status: All briefs have been filed.

Peninsular Properties Braden River, et al. v. City of Bradenton, Florida, Case No. 2D06-5302. An appeal of the lower court's dismissal of petition as untimely. The petition for review of the City of Bradenton's denial of petitioners' Mira Isles project was filed after expiration of the jurisdictional thirty-day timeframe for seeking judicial review of local government action. The trial court determined it was without jurisdiction to rule on the merits and dismissed the petition, rejecting section 70.51(10)(a) "as an unconstitutional infringement on the Supreme Court's rule-making authority." Status: Reversed and remanded. 32 Fla. L. Weekly D1815a. The Florida Supreme Court denied review on January 10.

Marine Industries Association of Collier County v. Florida Fish & Wildlife Conservation Commission, Case No. 2D07-1777. Appeal from a final order approving the Fish and Wildlife Commission's permit granted to the City for the placement of waterway markers. The final order rejected much of the Administrative Law Judge's recommended order finding that 1) the parties had standing to challenge the permit and the necessity of the ordinance underlying the waterway marker permit application and 2) the Fish and Wildlife Commission was obligated to independently determine whether the local ordinance was needed. Status: Oral argument date set December 5, 2007.
 

THIRD DCA

Florida Power & Light Company v. Department of Environmental Protection, et al., Case No. 3D07-840. Appeal from a final order determining that DEP's proposed CAIR Rule is a valid exercise of delegated legislative authority. DOAH Case No. 06-2871RP. Status: Affirmed December 7, 2007. 32 Fla. L. Weekly D2652c

Jimmy T. Bauknight, et al. v. Monroe County Board of County Commissioners, et al., Case No. 3D07-915. Appeal from trial court's order granting County's motion for summary final judgment declaring that appellant property owners failed to exhaust administrative remedies prior to seeking compensation for temporary taking of their properties. This is a result of the County's application of transportation concurrency requirements. Status: Oral argument held December 30, 2007.

CNL Resort Hotel, L.P. v. City of Doral, Florida, et al., Case No. 3D07-1528. Petition for review of non-final administrative order dismissing or striking challenge to plan amendments based on allegation that the amendments are inconsistent to the extent they impair CNL's property rights. Status: Oral argument held on September 5, 2007.

FOURTH DCA

1000 Friends of Florida, et al. v. DCA, Case No. 4D05-2068. Appeal of final order determining that proposed amendments to Palm Beach County comprehensive plan to accommodate the proposed Scripps biomedical campus are in compliance. Status: Response to Court's Order requesting status of Ordinances 2004-34 to 2004-39 and 2004-63 to 2004-64 and whether appeal is moot, filed June 5, 2006; jurisdiction relinquished to the Department of Community Affairs on July 12, 2006 (for 120 days); joint status report filed November 27, 2006; order granting extension of time for relinquishment of jurisdiction rendered December 7, 2006, and recommending case remain with the DCA through October 15, 2007; extension of time granted through January 31.

FIFTH DCA

Alfred J. Trepanier, Successor Trustee, et al. v. County of Volusia, Florida, Case No. 5D05-3892. Appeal by owners of oceanfront property from a summary judgment for the County. The owners had sued the County for allowing (and directing) the public to park on property they claim they own. Status: Affirmed in part and reversed in part, on September 14, 2007, 32 Fla. L. Weekly D2197a.

Stacy Watson May, stacy.watsonmay@hklaw.com, received her J.D. from The John Marshall Law School in 1997. She practices in the Jacksonville and Orlando offices of Holland + Knight LLP.

Lawrence E. Sellers, Jr., larry.sellers@hklaw.com, received his J.D. from the University of Florida College of Law in 1979. He practices in the Tallahassee office of Holland + Knight LLP.