• Land Use Cases
• Environmental Cases 

Section 163.3215, F.S., provides for a de novo action in circuit court rather than review by certiorari.  Poulos v. Martin County, 22 Fla. L. Weekly D2395 (Fla. 4th DCA Oct. 15, 1997). 

     The consistency of a Martin County development order with the local comprehensive plan was challenged pursuant to section 163.3215, F.S.  The trial court concluded that the scope of its review under that statute is certiorari not a trial de novo.  The Fourth DCA, reversed citing dicta in the First DCA's opinion quashed by Parker v. Leon County, 627 So.2d 476 (Fla. 1993), for the proposition that section 163.3215, F.S., contemplates a de novo proceeding.  In passing, the court noted that if section 163.3215, F.S., was interpreted to allow the trial court's certiorari jurisdiction to be invoked after the expiration of the 30-day period prescribed in the Florida Rules of Appellate Procedure, the statute would be unconstitutional. 

Circuit court may not direct a county commission to take specific action on remand after quashing the commission's zoning decision.  Seminole County Board of County Comm'rs v. Eden Park Village, Inc., 22 Fla. L. Weekly D2266 (Fla. 5th DCA Sept. 26, 1997). 

     The Seminole County Board of County Commissioners (Board) denied Eden Park Village's application for a special exception to expand its existing adult congregate living facility.  The circuit court, sitting in its appellate capacity, quashed the Board's action and directed the Board to grant the special exception.  The Fifth DCA held that the circuit court departed from the essential requirements of law when it ordered the Board to grant the special exception.  The Fifth DCA held that the circuit court could quash the Board's action but it could not order specific action be taken on remand.  The dissent would have gone further and quashed the circuit court's decision in its entirety because the record contained competent substantial evidence to support the Board's denial of the special exception. 

Case-by-case analysis is required to determine whether past dredging activities constitute "improvement" of land under the repealed Butler Act.  City of West Palm Beach v. State Board of Trustees of the Internal Improvement Trust Fund, 22 Fla. L. Weekly D2028 (Fla. 4th DCA Aug. 27, 1997). 

     The City of West Palm Beach (City) appealed a grant of summary judgment that its dredging activities and construction of a pier in the late 1940s (prior to the repeal of the Butler Act in 1957) did not constitute "improvement" sufficient to transfer title of the marina property (the dredged area including the piers) to the City.  The trial court found that the City was only entitled to a disclaimer regarding the land immediately beneath the piers.  The Fourth DCA reversed, holding that the sum of the activities conducted by the City to build the marina (primarily dredging and pier construction) was sufficient to constitute a permanent improvement of the entire area, and thus the trial court erred in not finding that the title to this area transferred to the City under the Butler Act when the City completed its activities.  The Fourth DCA reasoned that the piers would have been useless without the dredged areas in between and surrounding them, and therefore the dredging activity was part of the "improvement," and not done merely to fill another parcel of land.  Significantly, the Fourth DCA also adopted the Third DCA's position that determinations  whether dredging constitutes an improvement under the old Butler Act should be done on a case-by-case basis. 

Statute which prohibits exploration and drilling for oil in certain areas off the coast of Florida does not effect a taking of the property of the petroleum company which is entitled to royalties from oil and gas taken from those areas. Coastal Petroleum Corp. v. Bd. of Trustees of the Internal Improvement Trust Fund, 22 Fla. L. Weekly D1895 (Fla. 1st DCA Aug 5, 1997). 

     Coastal Petroleum's interests in oil and gas potentially underlying areas off Florida's coast dates back to the 1940s.  Coastal's current interests are set forth in a 1976 settlement agreement with the state, which entitles Coastal to a percentage of any oil and gas  royalties derived from certain off-shore areas.  This agreement continues through 2016.  In 1990, however, off-shore drilling was prohibited by policy of the Board of Trustees of the Internal Improvement Trust Fund and section 377.342, F.S.  Coastal brought suit, claiming that the policy and statute effected a taking of its royalty interest. 

     The trial court rejected this claim, concluding that Coastal's royalty interest is not a protectable property right and the state's action in protecting its submerged lands did not constitute a taking.  The First DCA affirmed, holding that Coastal's royalty interest was too speculative to rise to the level of a protectable property interest, and further concluded that section 377.342, F.S., was a lawful exercise of authority under the public trust doctrine, Article X, section 11 of the Florida Constitution. 
 

Environmental Cases 

Chemical manufacturer is not liable for groundwater contamination caused by spills occurring when the chemical is being unloaded by independent contractors of the manufacturer.  Dept. of Envt'l Protection v. Eastman Chemical Co., 22 Fla. L. Weekly D2338 (Fla. 3d DCA Oct. 8, 1997). 

     FDEP sought to impose liability on a chemical manufacturer under Florida's equivalents to CERCLA’s strict liability regime for spills occurring when the chemicals were unloaded from the trucks that transported the chemicals to purchasers.  The trial court granted summary judgment in favor of the chemical manufacturer, and the Third DCA affirmed.  Central to the court's holding were the following facts:  the chemicals were shipped in trucks operated by independent contractors; according to the sales agreement, title to the chemicals passed to the purchaser when they arrived at the purchaser's location; and the spill occurred when the trucks were being unloaded by the purchaser and the truck driver, an independent contractor. 

An Administrative Law Judge's determination as to whether a permit applicant has provided "reasonable assurances" that a project would not degrade Outstanding Florida Waters is a question of fact upon which FDEP and the reviewing court may not substitute their judgment for that of the ALJ.  Save Anna Maria, Inc. v. Dept. of Transp., 22 Fla. L. Weekly D2382 (Fla. 2d DCA Oct. 8, 1997). 

     FDOT sought a dredge and fill permit to construct a new bridge over Sarasota Pass from Bradenton to Anna Maria Island.  FDEP ultimately denied the permit based upon the Administrative Law Judge's finding that FDOT failed to provide "reasonable assurances" that the project would not degrade Anna Maria Sound, an Outstanding Florida Water.  The Second DCA affirmed the permit denial.  Notably, FDOT's failure to provide any baseline measure of the existing water quality in the Sound made it impossible for FDEP or the court to determine whether the measures proposed by FDOT provided "reasonable assurance" that the unknown water quality would be maintained. 

Florida Supreme Court upholds the constitutionality of the "net ban" provision of the Florida Constitution.  Lane v. Chiles, 22 Fla. L. Weekly S506 (Fla. Aug. 21, 1997). 

     Lane, a commercial fisherman, challenged the validity of the "net ban" provision of the Florida Constitution (Article X, section 16) which was adopted through an initiative petition in 1994.  The trial court rejected the challenge, concluding that the "net ban" does not violate Lane's rights under the due process, equal protection, or contract clauses of the Florida and U.S. Constitutions.  The First DCA certified the case to the Florida Supreme Court as one of great public importance.  The Supreme Court affirmed the trial court's decision. 

     Because the court concluded that commercial fishing is not a fundamental right and commercial fisherman are not a suspect or quasi-suspect class, the court analyzed the validity of the "net ban" under the rational basis standard commonly used to test the constitutional validity of state statutes.  The "net ban" met this standard since it serves to accomplish the legitimate public interest of conserving marine resources.  The court also rejected Lane's equal protection claims, finding that the "net ban" does not single-out particular fishermen for more favorable treatment.  Instead, the "net ban" relates only to particular kinds of fishing equipment.  Finally, the court summarily rejected Lane's procedural objections to the ballot title and ballot summary of the "net ban" amendment considered by the voters. 

Local government ordinances regulating mangrove trimming were abolished 180-days after the effective date of the Mangrove Trimming and Preservation Act of 1995, and could not thereafter serve as a basis for a criminal or civil action even if the alleged violation occurred before the Act’s effective date.  Sun Harbor Homeowners Ass'n, Inc. v. Broward County Dept. of Natural Resource Protection, 22 Fla. L. Weekly D2397 (Fla. 4th DCA Oct. 15, 1997). 

     In March 1995, the Homeowners Association allegedly violated a county ordinance prohibiting mangrove trimming.  Subsequently, the Legislature passed the Mangrove Trimming and Preservation Act of 1995 which preempted all local mangrove trimming ordinances 180 days after the Act’s effective date.  The county ordinance under which the Association was charged was abolished in accordance with the Act, and no successor local ordinance was adopted.  The hearing on the Association's alleged violation took place in December 1995, shortly after the local ordinance was abolished in accordance with the Act, and the circuit court thus dismissed.  The Fourth DCA affirmed, citing propositions that the repeal of a penal statute applies to all cases pending at the time of the repeal notwithstanding the date of the violation unless there is a savings clause for past violations, and that the Florida Constitution grants local governments powers not rights. 

Court upholds the validity of proposed rules that prohibit construction of bridges and utility lines over and across submerged sovereign lands.  Lost Tree Village Corp. v. Bd. of Trustees of the Internal Improvement Trust Fund, 22 Fla. L. Weekly D2072 (Fla. 4th DCA Sept. 3, 1997). 

     The Board of Trustees of the Internal Improvement Trust Fund (Board) proposed rules to prohibit the construction of bridges and utility lines over and across submerged sovereign lands.  An Administrative Law Judge concluded that the proposed rules did not constitute an "invalid exercise of delegated legislative authority" and were therefore valid.  The Fourth DCA affirmed.  The court noted that the proposed rules do not contravene local governments' authority to regulate development on islands surrounded by submerged sovereign lands.  Instead, the proposed rules only regulate the use of the submerged lands and, therefore, are within the Board's broad authority under the public trust doctrine, Article X, section 11 of the Florida Constitution. 

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Robert Manning is an Associate with Hopping Green Sams & Smith, P.A. in Tallahassee, Florida.  He received his B.A. from the University of Florida and his J.D. from the University of Tennessee.  Robert practices primarily in the areas of air and water quality regulation and permitting. 

Kent Wetherell is an Associate with Hopping Green Sams & Smith, P.A. in Tallahassee, Florida.  He received his B.A. and his J.D. from Florida State University.  Kent practices in the areas of administrative law, land use and legislative lobbying.