Land Use Cases

Section 163.3215, Florida Statutes., 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 by certiorari, not a trial de novo. The Fourth DCA reversed, citing 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 county commission to take specific action on remand after quashing 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 court held that the circuit court could quash the Board's action but it could not order that 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analysis is required to determine whether past dredging activities constitute "improvement" of land under the repealed Butler Act.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 judgement 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 it 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 regarding 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 1940's. 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. The court held 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).

The Florida Department of Environmental Protection (FDEP) sought to impose liability on a chemical manufacturer under Florida's mini-CERCLA Acts 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 passes to the purchaser when they arrive at the purchaser's location; and the spill occurred when the trucks were being unloaded by the purchaser and the (independent contractor) truck driver.

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.

lorida 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 fisherman 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 effective date of the Act. Sun Harbor Homeowners Ass'n, Inc. v. Broward County Dept. of Natural Resource Protection, 22 Fla. L. Weekly D2397 (Fla. 4th 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, effective 180 days after the effective date of the Act, preempted all local mangrove trimming ordinances. 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 the general proposition of criminal law that the repeal of a penal statue 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.

Court upholds 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.

Property owner is entitled to compensation in an inverse condemnation action where bridge constructed by county interferes with the property owner's riparian right of view even though bridge did not physically rest on the property owners' land. Lee County v. Kiesel, 23 Fla. L. Weekly D414 (Fla. 2d DCA Feb. 6, 1998).

The Kiesels brought an inverse condemnation action against Lee County for the diminution in value to their property resulting from the county's construction of a bridge over the Caloosahatchee River. The bridge does not rest on the Kiesel's property, but extends over the water at an angle such that the bridge is in the Kiesel's view across the river. The Kiesels' expert real estate appraiser testified that 80% of the Kiesel's view across the water was obstructed by the bridge, resulting in a diminution in value of the Kiesel's property of over $350,000. The trial court entered a judgment in favor of the Kiesels. The DCA affirmed.

The court noted that the Kiesels did not allege a regulatory taking of their property. Therefore, the relevant standard was not whether the bridge construction deprived the Kiesels substantially all beneficial use of their property. Instead, the proper standard is whether the Kiesels' right to an unobstructed view over the water is substantially or materially obstructed. The court stated that this standard requires a case by case factual determination. The court agreed with the trial court's conclusion that an 80% obstruction in the Kiesel's view was substantial and material.

Environmental group denied intervention in suit where Board of Trustees of the Internal Improvement Trust Fund, a party to the suit, would fully protect the group's interests. Florida Wildlife Federation, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 23 Fla. L Weekly D581 (Fla. 5th DCA Feb. 27, 1998).

The Board of Trustees of the Internal Improvement Trust Fund (Trustees) brought an action to determine ownership of certain lands fronting Lake Poinsett in Brevard County. Two environmental groups, The Florida Wildlife Federation and Save Our St. Johns River, sought leave to intervene in that suit. The trial court denied the groups' motions to intervene. The DCA affirmed, holding that the trial court did not abuse its discretion in not allowing intervention because "the Trustees, a responsible government entity, will fully protect [the groups'] interests."

Department of Environmental Protection's delay in ruling on company's request for reimbursement of environmental clean-up costs under Florida's "Good Samaritan Statute" does not entitle company to initiate an administrative proceeding under section 120.57 where DEP was still investigating company's entitlement. J.H. Williams Oil Co., Inc. v. Department of Environmental Protection, 23 Fla. L. Weekly D637 (Fla. 2d DCA Mar. 6, 1998).

J.H. Williams Oil Co. filed a claim for reimbursement of environmental clean-up costs under Florida's "Good Samaritan Statute" in 1994. Because the Department of Environmental Protection had not ruled on its claim, Williams Oil filed a petition in 1997 to initiate a section 120.57 proceeding to compel DEP to take action on its claim. DEP denied the petition on the basis that it was premature since DEP was "still investigating Williams Oil's entitlement to reimbursement." The DCA affirmed DEP's denial of the petition, but chastised DEP for the "inordinate time" it has taken to process Williams Oil's claim. The court remanded the case to DEP to enter an order "without delay" on the merits of Williams' Oil entitlement to reimbursement.

Private citizen who sues in the name of the state does not need to alleged special damages to enjoin a public nuisance under section 823.05, Florida Statutes, and such suits are not superseded by the provisions of chapter 403, Florida Statutes. Kirk v. United States Sugar Corp., 23 Fla. L. Weekly D750 (Fla. 4th DCA Mar. 18, 1998).

Former Governor Claude Kirk (Kirk) and others sued various sugar growers, alleging that their cultivating, harvesting and processing sugar cane constituted a public nuisance under section 823.05, Florida Statutes. The trial court dismissed the complaint with prejudice based upon (1) the primary jurisdiction doctrine; (2) section 823.05 was superseded by chapter 403; and (3) Kirk and the other plaintiffs lack standing to bring the suit. The 4th DCA reversed on each ground.

First, the court held that the primary jurisdiction doctrine did not bar the public nuisance claim because the plaintiffs alleged facts which, if proven, would demonstrate that the available administrative remedies were insufficient. Notably, the plaintiffs alleged that the relevant governmental agencies "are not doing their job" in preventing the public nuisances caused by the defendants. Second, the court rejected the defendants arguments that chapter 403 superseded section 823.05, noting that the provisions could be harmonized "as two different options under which a private citizen might seek relief from air or water pollution." This holding conflicts with the First DCA's opinion in State v. SCM Glidco Organics Corp., 592 So. 2d 710 (Fla. 1st DCA 1991). Third, the court held that Kirk had standing to maintain the public nuisance suit. Because Kirk brought suit in the name of the state, it was unnecessary for him to allege special damages caused by the defendants' actions. The court further held that the trial court should not have dismissed the other plaintiffs' claims with prejudice since they may have been able to amend the suit to allege special damages.

The ballot summary of the proposed constitutional amendment to unify the Marine Fisheries Commission and the Game and Fresh Water Fish Commission is defective and, therefore, stricken from the ballot. Advisory Opinion to the Attorney General re: Fish and Wildlife Conservation Commission, 23 Fla. L. Weekly S20 (Fla. Jan 8, 1998).

The Attorney General petitioned the Florida Supreme Court for an advisory opinion as to the validity of an initiative petition which proposed an amendment to the Florida Constitution to create the Fish and Wildlife Conservation Commission (FWCC). The FWCC would have unified the Marine Fisheries Commission (MFC) and the Game and Freshwater Fish Commission. The Court's inquiry was limited to determining whether the amendment satisfies the single-subject requirement of the state constitution, and whether the amendment's ballot title and summary are misleading.

In a 4-3 decision, the Court concluded that the amendment satisfies the single-subject requirement because it relates only to creation of a single entity to govern "all matters concerning wild animal life, fresh water aquatic life, and marine aquatic life." However, the Court concluded that the ballot summary was misleading because it failed to inform the voter that the power to regulate marine life would be transferred from the Legislature to the FWCC. Because the ballot summary failed to inform the voter of this transfer of power, it was misleading. Accordingly, the amendment was stricken from the ballot.

Justices Anstead, Kogan and Shaw dissented from that portion of the amendment which found the ballot summary misleading. They would have approved the petition as being adequate to inform the public that FWCC, rather than the Legislature, will exercise regulatory power over marine life.

Where a Consent Order provides that section 120.69, Florida Statutes, would govern its enforcement, court could determine whether penalties agreed to in the Order were "inappropriate" under that statute. 126 Avenue Landfill, Inc. v. Department of Environmental Protection, 23 Fla. L. Weekly D373 (Fla. 2d DCA Jan. 23, 1998).

The Department of Environmental Protection and Pinellas County entered into a Consent Order in which the county agreed to pay civil penalties arising out of violations of environmental statutes and rules at a county landfill. The county failed to comply with the Order and DEP brought an enforcement action seeking $134,000 in penalties and late charges. The county argued that the court could determine whether the penalties were "inappropriate" under section 120.69. The trial court rejected that argument since the penalties were based upon an agreed Consent Order and, therefore, entered a judgment in favor of DEP. The 2d DCA reversed.

The court rejected DEP's argument that the trial court could not question the appropriateness of the penalties agreed to in the Consent Order. In this regard, the court held that because the Consent Order specifically provided that section 120.69 would govern its enforcement, the trial court had the discretion under that statute to determine "the inappropriateness of the remedy sought by the agency." Because the trial court failed to hear testimony on that issue, the court reversed the judgment in favor of DEP and remanded the case to the trial court.

Proper disposition of declaratory judgment suit challenging quasi-judicial action of local government is dismissal of the complaint rather than summary judgment in favor of the local government. Keller v. Town of Palm Beach, 23 Fla. L. Weekly D868 (Fla. 4th DCA Apr. 1, 1998).

Keller brought a declaratory judgment action requesting the court to declare whether, under the local zoning code, his property included the necessary set-back to construct an addition to his home. The trial court concluded that it had no jurisdiction to consider the suit and entered a summary judgment in favor of the Town. On appeal, the Fourth DCA affirmed the trial court's finding but held that the proper disposition of the case was dismissal of Keller's action rather than entry of summary judgment in favor of the Town. Because the zoning determination sought by Keller was quasi-judicial in nature, it was subject to certiorari review once rendered by the local government.

Plaintiff's claim that county's zoning decision would adversely affect his quality of life by its negative impact upon wildlife populations and habitats was insufficient to confer standing on the plaintiff to challenge the decision under section 163.3215, Florida Statutes. Florida Rock Properties v. Keyser, 23 Fla. L. Weekly D874 (Fla. 5th DCA Apr. 3, 1998).

Putnam County rezoned 509 acres of property owned by Florida Rock Properties from agriculture to mining. Keyser challenged that decision under section 163.3215, Florida Statutes (F.S.), as inconsistent with the county's comprehensive plan because 25% of the property was not required to be set-aside for preservation of native vegetation. The trial court quashed the county's decision. Florida Rock appealed.

The Fifth DCA reversed the trial court's order. The court held that Keyser failed to demonstrate that he was an "aggrieved or adversely affected person" entitled to challenge the county's rezoning under section 163.3215, F.S. Relying on Parker v. Leon County, 627 So.2d 476 (Fla. 1993), the court held that Keyser's ownership of property in Putnam County is insufficient to establish standing where such property is not adjacent to the property being rezoned. The fact that Keyser practice of environmental law would be impacted by the county's decision was also insufficient to establish standing since professional interests are not protected by the local comprehensive plan. Further, Keyser's allegations that his quality of life would be adversely affected by the county's decision was insufficient to establish standing because such interests do not "exceed in degree the general interest in community good shared by all persons" as required by section 163.3215(2), F.S.

Judge Sharp dissented. She would have affirmed the trial court's decision and held that Keyser had standing to challenge the county's rezoning decision under section 163.3215, F.S. Judge Sharp stated that Keyser's personal and professional interest in the environment and protection of wildlife habitat and his appearance at county hearings regarding this rezoning were sufficient to establish his standing to challenge the county's decision. She noted that the majority's decision will undermine the protection of the environment by concerned citizens.

Market share liability rationale may not be applied to six companies which transported hazardous substance where there is no evidence that any one of those companies spilled the hazardous substance. Department of Environmental Protection v. CTL Distribution, Inc., 23 Fla. L. Weekly D576 (Fla. 3d DCA Feb. 25, 1998).

DEP initiated enforcement action against seven trucking companies which transported a liquid chemical called dioctyl phthalate (DOP), alleging that each of the companies made deliveries of DOP to a manufacturing plant where DOP-contaminated soil was discovered. Six of the companies moved for summary judgment on grounds that there was no evidence that they spilled DOP at the plant. The other company, CTL, moved for summary judgment on a statute of limitations theory. The trial court granted all of the companies' motions for summary judgment. DEP appealed.

The Third DCA affirmed the trial court's grant of summary judgment in favor of the six companies, and reversed the grant of summary judgment in favor of CTL. The court rejected DEP's argument that the market share liability rationale should be applied to the six companies, thereby requiring those companies to prove that they did not spill any DOP at the plant (rather than DEP proving that each of the companies did spill DOP). The court held that the burden-shifting, market share liability rationale is not implicated unless it can be shown that the alleged defendants acted wrongfully. Because the evidence showed that only one company, CTL, acted wrongfully, the market share liability rationale could not be applied to the other six companies. In rejecting CTL's statute of limitations defense, the court relied upon Department of Environmental Protection v. Fleet Credit Corp., 691 So.2d 512 (Fla. 4th DCA 1997), for the proposition that soil contamination is a continuing harm for which the statute of limitations does not begin to run until the harm is abated and, pursuant to section 376.307(7), Florida Statutes, the statute of limitations does not begin to run until DEP has paid its last bill for clean-up. Because clean-up of the DOP-contaminated soil at the plant had not been completed, the statute of limitations against CTL had not yet begun to run.