Out-of-state environmental organization does not have standing to intervene in administrative proceeding under section 403.412(5), Florida Statutes.  Legal Envtl. Assistance Found. v. Dep't of Envtl. Protection, 23 Fla. L. Weekly 33 (Fla. 1st DCA Dec. 18, 1997).

     LEAF, an environmental organization organized under the laws of Alabama, sought leave to intervene in an administrative proceeding for the issuance of an underground waste disposal permit by DEP.  In denying LEAF's motion to intervene, DEP concluded that section 403.412(5), Florida Statutes allows intervention by "citizens of [Florida]" and LEAF, as an Alabama corporation, does not fall within that category.  The First DCA affirmed.  The court held that DEP correctly interpreted section 403.412(5), Florida Statutes and because LEAF did not allege standing under section 120.57, Florida Statutes by virtue of a substantial interest in the permit proceeding, LEAF was not entitled to intervene.

     Judge Benton dissented, citing Florida Wildlife Fed'n v. Dep't of Envtl. Regulation, 390 So. 2d 64 (Fla. 1980), in which the court held that a domestic corporation had standing under section 403.412, Florida Statutes.  Because LEAF held a certificate of authority to conduct business in Florida, it has all of the rights of a Florida corporation (§ 617.1505(2), Fla. Stat.), including, Judge Benton argued, the right to intervene in environmental cases pursuant to section 403.412(5), Florida Statutes.

     "Polluters pay" amendment to the Florida Constitution, adopted by the voters in 1996, is not self executing and requires polluters within the Everglades Agricultural Area to bear the costs of abating only the pollution found to be attributable to them.  Advisory Opinion to the Governor -- 1996 Amendment 5 (Everglades), 22 Fla. L. Weekly S728 (Fla. Nov. 26, 1997).

     By letter dated March 6, 1997, Governor Chiles requested an advisory opinion from the Florida Supreme Court regarding two issues associated with Amendment 5 to the Florida Constitution, which reads as follows: "Those in the Everglades Agricultural Area [EAA] who cause water pollution within the Everglades Protection Area or the Everglades Agricultural Area shall be primarily responsible for paying the costs of the abatement of that pollution."  First, the Governor asked whether Amendment 5 is self-executing, i.e., is the Florida Legislature required to enact implementing legislation to carry out the purposes of the Amendment.  Second, the Governor asked the court to determine the meaning of the phrase "primarily responsible." 

     As to the first question, the court held that Amendment 5 is not self-executing; it "cannot be implemented without the aid of legislative enactment because it fails to lay down a sufficient rule for accomplishing its purpose."  The court supported its opinion by expressing several significant questions that are not answered by the plain language of the Amendment: "what constitutes 'water pollution'; how will one be adjudged a polluter; how will the cost of pollution abatement be assessed; and by whom might such a claim be asserted."

     Regarding the Governor's second question, the court held, based on ordinary dictionary definitions, that the phrase "primarily responsible" means that those within the EAA that are determined to be responsible for polluting the EAA "must pay their share of the costs of abating that pollution." 
 

LAND USE CASES

     City's rezoning ordinance constitutes "reverse spot zoning" where evidence existing at the time the ordinance was enacted demonstrates that the ordinance imposes a more restrictive classification on one property than on neighboring properties.  City of Miami Beach v. Robbins, 22 Fla. L. Weekly D2750 (Fla. 3d DCA Dec. 10, 1997).

      In 1994, the City of Miami Beach downzoned two blocks, including Robbins' property, from the RM-2 zoning classification to the RM-1 zoning classification.  The trial court granted Robbins' petition for certiorari and quashed the ordinance as reverse spot zoning, finding that the ordinance created a "veritable island of RM-1 zoning" within a "vast sea of RM-2 and other types of zoning."  The Third DCA approved the trial court's decision since there was not substantial competent evidence in existence at the time the City downzoned Robbins' property to demonstrate why the property was treated differently than neighboring property.  The court implied that the doctrine of administrative res judicata would not preclude a new effort by the city to downzone Robbins' property since subsequent actions taken by the city, including a 1996 amendment to the city's comprehensive plan and the downzoning to RM-1 of other property adjacent to Robbins' property, may provide the requisite evidence to support a downzoning of Robbins' property.

     County commission has discretion to determine whether a substantial change in circumstances has occurred which would preclude the application of the doctrine of administrative res judicata to a second application for rezoning where a previous application was denied.  Miller v. Booth, 22 Fla. L. Weekly D2739 (Fla. 3d DCA Dec. 10, 1997).

     Dade County denied the Booths' second application for rezoning of their property, finding that its consideration of the application was precluded by the doctrine of administrative res judicata.  Apparently, the county had denied a previous rezoning application from the Booths.  The trial court quashed the county's decision.  On certiorari, the Third DCA quashed the trial court's decision and reinstated the county's decision denying the Booths' second rezoning application.  The court held that the determination of whether a substantial change in circumstances has occurred, precluding the application of administrative res judicata, "lies primarily within the discretion of the zoning authority itself."  Because the Third DCA concluded that the county commission acted within its discretion when it determined that such a change in circumstances had not occurred, the trial court should not have substituted its judgment for that of the commission.

     Conveyance to federal government of easement to widen and maintain intercoastal waterway does not convey title in fee simple to government for the land under the widened area of the waterway; conveyor retains title in fee simple.  Kester v. Tewksbury, 22 Fla. L. Weekly D2627 (Fla. 4th DCA Nov. 19, 1997).

     The Fourth DCA reversed the trial court's ruling that title to submerged land in the intercoastal waterway was transferred to the federal government when the original owner conveyed an easement to the government to widen and maintain the waterway.  The court reasoned that the appellant conveyed an easement only, and not title in fee simple, based on the name of the conveying document, the plain language in the conveyance, and the specification in the conveyance of uses to which the federal government was allowed to undertake.  

     Following the conveyance of the easement to the federal government, and the subsequent widening of the intercoastal waterway, the original owner conveyed fee simple title to its property, not including the land under the widened waterway.  The subsequent owner seeks a declaration of its littoral rights regarding the use of a dock over the widened waterway.  The trial court, on remand, must determine the scope of the littoral rights, and whether the current use of the dock is an appropriate exercise of those littoral rights.

     Severance damages resulting from a partial taking for drainage easement right-of-ways are recoverable.  Joynt v. Orange County, 22 Fla. L. Weekly D2721 (Fla. 5th DCA Dec. 5, 1997).

     Addressing a narrow issue of statutory construction, the Fifth DCA held that the term "right-of-way" in section 73.071(3)(b), Florida Statutes, is not limited to road right-of-ways.  Instead, that term includes easements for improvements such as drainage facilities.  The court relied upon the broad definition of "right-of-way" in subsection (4) of section 73.071 to conclude that "had the legislature intended to limit subsection 3 severance damages to a 'road' right-of-way condemnation, it would have done so in plain language."

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