"Nuisance" is a sufficiently concrete criterion that can be used by local governments in its Comprehensive Plan concurrency determination to deny applications. Windward Marina, L.L.C. v. City of Destin and the Destin City Council, 24 Fla. L. Weekly D2589 (Fla. 1st DCA Nov. 17, 1999).

     Windward applied to the City of Destin for a final development order to construct a dry-dock marina at the mouth of Destin Bay. The City denied Windward's application based on a determination that the proposed development would be incompatible with the surrounding uses because the increase in the number of boats would create a "nuisance" and a "traffic generation" problem as those criterion are used in the Comprehensive Plan. The circuit court affirmed the application denial.

     The First DCA found that the denial of the application based on "traffic generation" was inappropriate because boat traffic was not the "traffic" contemplated by the Local Government Comprehensive Planning and Land Development Agreement Act. § 163.3161-163.3217, F.S. Nonetheless, the Court upheld the denial finding that the term "nuisance" was a sufficiently concrete criterion to be used by the City in its Comprehensive Plan concurrency determination to deny the application. 

     DEP's denial of a drilling permit constitutes a taking because it effectively denies Coastal the ability to perform its contract with the State. Coastal Petroleum Company v. Florida Wildlife Federation, Inc., et al., 24 Fla. L. Weekly D2321 (Fla. 1st DCA Oct. 6, 1999).

     Coastal applied for a drilling permit to extract oil from beneath the Gulf of Mexico which DEP denied at the urging of various environmental groups. The case turns on the interpretation of Section 377.241, F.S. which lists the criteria the agency must consider before such a permit is issued. In this case, DEP, changing its interpretation of the statute, determined that the criteria in Section 377.241, F.S. must be "weighed" rather than merely "met." DEP found that the environmental concerns outweighed the right to drill for oil and denied the permit. The First DCA upheld DEP's new reading of the statute and denial of the application.

     However, Coastal had a contract with the State of Florida to explore for and extract oil from submerged sovereignty lands. The First DCA noted that DEP's denial of the permit effectively prevents Coastal from exercising its rights under the contract and would amount to an unconstitutional taking if just compensated was not paid. 

     A landowner in eminent domain is only entitled to full compensation for the current taking and not promises by the condemnee to maintain water quality standards. Brevard County, Florida v. A. Duda & Sons, Inc., 24 Fla. L. Weekly D2218 (Fla. 5th DCA Sept. 24, 1999).

     After Brevard County obtained an order of taking for 240 acres of Duda's property in which it intended to construct an artificial wetlands area to be used as a disposal and treatment area for its wastewater treatment facility, it realized that it failed to obtain an easement over the "4 Mile Canal" which connected the wetlands to Lake Winder. The County sought an amended order of taking for an easement over the canal for the transmission of the wastewater treatment effluent to Lake Winder.

     In response, Duda expressed concerns about the proposed Pollutant Loading Reduction Goals (PLURG) and Total Maximum Daily Loads (TMDL) regulations and the effect that the County's use of the canal would have on Duda's ability to comply with the new regulations, if imposed. The Circuit Court took Duda's concerns into account and issued an order which required the County to take steps in the future to reduce or eliminate contaminants to meet whatever unascertained water quality standards may exist in the future. 

     On appeal from the County, the Fifth DCA vacated the order because it went beyond the determination of a good faith deposit for contemplated damages. The court further noted that in an eminent domain action "the condemnee is entitled to just compensation now for the current taking, not vague promises to act in the future to cure future problems in an attempt to limit compensation." 

     Rate of Growth Ordinance found to be constitutional. Burnham v. Monroe County, 24 Fla. L. Weekly D1761 (Fla. 3d DCA July 28, 1999).

     Monroe County has a Rate of Growth Ordinance (ROGO) which awards points for certain design features in building plans and awards building permits to applicants who have accumulated the most points. After filing an application for a building permit and being denied because of a lack of points, the Burnhams sued for inverse condemnation and challenged ROGO as unconstitutional.

     The Third DCA, in affirming the circuit court, found that the Burnhams failed to show that ROGO denied all economically beneficial or productive use of the land. In addition, the court found ROGO constitutional because it substantially advanced the legitimate state interests of promoting water conservation, windstorm protection, energy efficiency, growth control, and habitat protection.

     Board's proposed rule found to be unauthorized exercise of delegated legislative authority. Anderson Colombia Company, Inc., et al. v. Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, 25 Fla. L. Weekly D37 (Fla. 1st DCA December 22, 1999).

     Anderson challenged the Board's proposed rule which required all upland or riparian owners, who obtained title to their property pursuant to the Butler Act, to continue to keep the land in question filled, bulkheaded or permanently improved. If the owner of the formerly submerged sovereign land failed to do so, title to the land could be claimed by the Board as part of the Public Trust. Anderson urged the court to recognize that title to upland and riparian obtained pursuant to the Butler Act or by disclaimer pursuant to the Bulkhead Act was titled in fee simple. 

     The First DCA held the Board's proposed rule was an unauthorized exercise of delegated legislative authority since the Butler Act was intended to convey title in fee simple of the submerged lands covered by the Act. Preserving a reversionary interest to the lands for the Public Trust conveys less than fee simple title and is, therefore, an impermissible exercise of the authority delegated by the legislature.

     Dredging of submerged sovereign lands is not a "permanent improvement" as contemplated in the Butler Act. City of West Palm Beach v. Board of Trustees of the Internal Improvement Trust Fund, et al., 24 Fla. L. Weekly S419 (Fla. Sept. 9, 1999).

     The City, pursuant to the Butler Act, constructed a municipal marina consisting of four piers prior to 1950. The City also dredged boat basins between the piers and channels from the boat basins to the intracoastal waterway channel. After the City received grandfather status from the Board for the land directly beneath the piers, it filed an action to quiet the title to 26 acres of sovereign submerged land surrounding the piers, to which the Board counterclaimed.

     The Circuit Court, Fourth DCA and Supreme Court disagreed. The Supreme Court held that the mere dredging of submerged sovereign lands was not a "permanent improvement" as contemplated in the Butler Act. The Court also disapproved State Bd. Of Trustees of the Internal Imp. Trust Fund v. Key West Conch Harbor, Inc., 683 So. 2d 144 (3d DCA 1996) and Jacksonville Shipyards, Inc. v. Department of Natural Resources, 466 So. 2d 389 (1st DCA 1985) to the extent they conflicted.

     Standing requirements under Section 163.3215, F.S., should be construed liberally. Putnam County Environmental Council, Inc. v. Board of County Commissioners of Putnam County, 2000 WL 569908 (Fla. 5th DCA May 12, 2000).

     Putnam County Environmental Council (PCEC) filed an action seeking to enforce the County's comprehensive plan after the County Board approved a special exception to the County Comprehensive Plan allowing the construction of a middle school next to the Etoniah Creek State Forest. The trial court dismissed the action finding that PCEC lacked standing because it was not an "aggrieved or adversely affected party" as defined by Section 163.3215, F.S.

     The Fifth DCA, reversing the trial court, held that Section 163.3215, F.S., was to be construed liberally and the fact that PCEC had alleged that it's members' conducted environmental studies in the Forest and that the construction of the school would result in diminution of some studied species was a sufficient connection with the land to be "aggrieved or adversely affected." The Court further noted that the rezoning of the land would adversely impact the PCEC's continued studies and connections with the Forest, and was an interest that exceeded in degree the general interest possessed by the community at large.

     Evidence presented to County Commission in zoning hearing was not competent. Jesus Fellowship, Inc. v. Miami-Dade County, Florida, 25 Fla. L. Weekly D481 (Fla. 3d DCA Feb. 23, 2000).

     Church filed a zoning application requesting special exceptions and an unusual use permit to allow the expansion of the Church's religious facilities and for a school and day care center. In order to get the Zoning Appeals Board to approve the application, the Church had to agree to a limitation of enrollment in its school to 524 students. At the County Commission meeting, neighbors from the surrounding area spoke out against granting the application. The County Commission granted the variance application, but limited the use of the school to K-6 education only and 150 students. The Church appealed the limitations imposed by the County Commission as unsupported by the evidence presented at the hearing, but the circuit court approved the decision of the County Commission. An appeal was taken to the Third DCA. 

     The Third DCA agreed with the Church, quashed the circuit court order, and remanded the case with instructions to grant the Church's application for a school of 524 students providing education for K-12 students. In its decision, the Third DCA noted that there is a difference between evidence presented and evidence which is competent to support a decision. In this case, none of the evidence presented furthered the validity of reducing the number of students from 524 to 150 or requiring the school to educate K-6 students only. For that reason, the decision of the County Commission was clearly not supported by substantial and competent evidence. Likewise, the decision of the circuit court was erroneous because it did not apply the law correctly as to what constitutes competent evidence.

Gary Hunter, Jr. is a Shareholder with Hopping Green Sams & Smith, P.A. in Tallahassee, Florida. He received his B.B.A. and J.D. from the University of Georgia. 

Kent Safriet is an Associate with Hopping Green Sams & Smith, P.A. in Tallahassee, Florida. He received his B.S. from Clemson University and his J.D. from the University of South Carolina. 

Mr. Hunter and Mr. Safriet practice primarily in the areas of environmental and land use litigation and solid and hazardous waste regulation.