Circuit court had no authority to intervene in or dismiss a special master proceeding under section 70.51, Fla. Stat. when judicial review of County’s zoning decision had not yet been sought.  Scott v. Polk County, 26 Fla. L. Weekly D1990a (Fla. 2d DCA, August 15, 2001).

Scott applied for a Planned Unit Development (PUD) and was denied by the Polk County Board of County Commissioners. After the Board’s denial, he filed a letter seeking alternative, nonjudicial review of the decision by a special master pursuant to § 70.51(4), Fla. Stat. Eight days later, he filed a lawsuit against Polk County alleging a violation of his substantive due process rights by ex parte communications between the County and the South Florida Water Management District which had a prospective interest in his property. Seven months later, the special master filed a “Mediator’s Report” in the lawsuit stating that the § 70.51 proceedings had resulted in an impasse and that it was prepared to continue “upon agreement of the parties or further direction of [the trial] court.” The County then filed a motion to dismiss, abate, or stay the special master proceedings which was granted. Scott appealed the order, arguing that the court had no jurisdiction to dismiss the proceedings. The appellate court agreed.

In reversing the trial court, the district court found that § 70.51, Fla. Stat., provides for an alternative review of final zoning decisions by a special master and are completely independent of the judiciary. In fact, § 70.51, Fla. Stat., specifically tolls the time period in which the landowner must seek judicial review of the decision until after the special master proceedings are completed. Realizing the judicial review process is completely separate from the special master proceedings -- which are strictly controlled by the parties and the special master -- the appellate court found that the trial court lacked jurisdiction over the special master proceedings. In addition, the court found that the § 1983 action -- although centered around the zoning denial -- was independent and distinct from the judicial review process relating to a denial of a zoning request.
 

Circuit court’s refusal to enjoin the South Florida Water Management District from implementing its emergency plan to discharge water from Lake Okeechobee into the Caloosahatchee River was proper. Lee County v. South Florida Water Management District, 26 Fla. L. Weekly D2484b (Fla. 2d DCA, October 12, 2001).

In the spring of 2000, the South Florida Water Management District (SFWMD) discovered that because of a rise in the water level of Lake Okeechobee, the lake might not survive another year unless its water level was reduced rather quickly. Accordingly, acting under emergency exceptions to the Administrative Procedures Act, the SFWMD adopted the “Shared Adversity Plan” whereby the lake’s water level would be reduced by two feet by June 1. The quick drainage of the lake, however, would adversely affect the bodies of water into which the drainage poured, one of which is the Caloosahatchee River whose lower end and estuary lie in Lee County. The salinity of the Caloosahatchee River would be severely reduced, causing its water to be inhospitable or uninhabitable by much of its plant and animal population.

Lee County filed a petition to temporarily enjoin the SFWMD from discharging the water at a rate greater than 800 cfs. The petition was denied by the circuit court. While the controversy was moot at the time the case was heard, by the appellate court agreed to hear the appeal because the question was of great public importance and the situation was likely to recur. The County argued that the circuit court erred in finding that the Shared Adversity Plan did not violate Florida law. The County argued that the Plan constituted “pollution” as defined in §403.031(7), Fla. Stat. and thus, was illegal. While the circuit court found that it was impossible for Lee County to be “polluted” by discharges of water from another navigable waterway, the appellate court refused to adopt such reasoning. Rather, the district court relied on provisions in the Environmental Protection Act allowing violations of water quality standards to be considered in light of “natural variability.” The Court further cited the fact that the mean daily discharge of fresh water into the Caloosahatchee between 1966 and 1994 was between 300 and 3,000 cfs. Thus, the Court determined that a discharge rate of 3,172 cfs under the Plan -- not much over historical rates -- could not be found patently illegal or a palpable abuse of SFWMD’s discretion so as to entitle the County to an injunction.

The Court also affirmed the circuit court’s finding that the Plan would not cause irreparable harm. The Court pointed out that the circuit court found that damage would occur but could not conclude that this damage would be irreparable.
 

A disputed issue of fact directly relevant to the Petitioner’s standing prevented the Department of Environmental Protection from summarily dismissing his petitions without a hearing. Sakelson v. Department of Environmental Protection, 790 So. 2d 1206 (Fla. 2d DCA 2001).

Sakelson filed two petitions with the Department of Environmental Protection (DEP) in August and September 1997 challenging DEP’s actions involving his sovereign submerged land lease. Sakelson sought modification of the lease after DEP asserted he was in violation of the lease terms. DEP denied this request and Sakelson filed a petition seeking review of this decision. DEP then decided to terminate the lease and Sakelson filed a second petition challenging this termination.

Sakelson alleged in each petition that the lease was renewed on February 13, 1997 and was effective from April 1, 1996 until April 1, 2001. While the petitions were pending, Sakelson transferred his interest in the lease along with the adjoining property to Paradise of Port Richey. On August 30, 1999, DEP summarily dismissed both petitions because Sakelson lacked standing. Obviously, for Sakelson not to have standing, DEP had to believe that no lease existed on April 1, 1996 and relied on this fact in its order.

The district court reversed, holding that whether Sakelson had an interest in the lease on April 1, 1996 is a question of fact that directly determines his standing. Accordingly, the issue was one of fact that must be determined at a hearing.
 

Landowner’s claim for a regulatory taking of submerged lands was ripe for judicial review when her application for a building permit had been denied. Taylor v. City of Riviera Beach, 26 Fla. L. Weekly D2598a (Fla. 4th DCA, October 31, 2001).

After the City adopted its Comprehensive Plan, Taylor (in a prior proceeding) brought a facial and as-applied takings claim against the City. The facial takings claim was dismissed and the as-applied takings claim was found not ripe because Taylor had not made a “meaningful application” to develop the property. See City of Riveria Beach v. Shillingburg, 659 So.2d 1174 (Fla. 4th DCA 1995). Thereafter, Taylor applied to the City for a building permit to build a single-family residence on her property that was designated as “Special Preservation” on the Comprehensive Plan; a designation that does not allow for residential development. After the City denied Taylor’s building permit application, Taylor filed the instant action claiming a taking.

The trial court, agreeing with the City, dismissed the action finding that the case was not ripe because Taylor had not exhausted available administrative remedies by seeking an amendment to the Comprehensive Plan. On appeal, the district court reversed, finding that Taylor’s building permit application was a “meaningful application” because it set forth her intended use of the land. Additionally, the City’s denial constituted final action because it stated how the City would apply the Comprehensive Plan to Taylor’s property. Finally, the Court held that nothing in its prior opinion (Shillingburg, 659 So.2d 1174) required Taylor to submit an application for amendment to the Comprehensive Plan, it only required “a meaningful application for [the] intended use of the land.”
 

The circuit court erred by substituting its judgment for that of the zoning board.  Miami-Dade County v. Brennan, 26 Fla. L. Weekly D2756 (Fla. 3d DCA, November 21, 2001).

Brennan sought a variance and was denied. The circuit court set aside the zoning board’s denial and the County appealed. On appeal, the district court held that the circuit court improperly reweighed the evidence and substituted its judgment for that of the zoning board. The more intriguing portion of the opinion is found in Judge Fletcher’s concurrence, in which Chief Judge Schwartz and Judge Sorondo concurred. There, Judge Fletcher found that the provision of the County’s code (§ 33-311(A)(4)(b), Miami-Dade County Code) that governs “non-use” variances was unconstitutional because “the language is too indefinite to suffice as a standard for boards to apply in reaching their decisions.” Since the constitutionality was not challenged the Court expressly noted that it was constrained to issues properly before it.
 

The Department of Environmental Protection erred in denying an owners association’s application to build a dock because it would violate riparian rights of adjacent landowners. Riparian rights of adjacent landowners are subordinate to rights created by an easement over the property allowing all subdivision landowners access to the river.  Parlato v. Secret Oaks Owners Ass’n, 26 Fla. L. Weekly D2244 (Fla. 1st DCA, September 13, 2001).

The Parlatos purchased Lot 10 of the Secret Oaks subdivision. A main dock extended from that lot into the St. Johns River. An easement was in place allowing the other property owners of the subdivision to cross over Lots 10 and 11 and to use “any dock now or hereafter located thereon.” An auxiliary dock ran parallel to the shoreline from the main dock to the easement. When the Parlatos purchased the property, they did so on the condition that the easement be modified. The association signed an agreement saying that all lot owners would have access to the main dock, but that the association would be responsible for maintenance and repair of the dock as well as insurance. The Parlatos destroyed the auxiliary dock shortly after their purchase.

The owners association submitted an application with the Department of Environmental Protection (DEP) for permits necessary to rebuild the auxiliary dock. DEP determined the Association was entitled to a dredge and fill permit but not a consent of use permit because the auxiliary dock would violate the riparian rights of adjacent landowners (the Parlatos and another landowner) under Rule 18-21.004(3)(a), (c) & (d), F.A.C. While many legal actions grew out of this controversy, the present case dealt only with the Association’s appeal of the denial of the use permit.

On appeal, the district court reversed finding that the Parlatos had ceded their riparian rights to the Association by way of the easement. Therefore, the Court found that Rule 18-21.004(3) could not have the effect of granting the Parlatos riparian rights that they had already relinquished by way of the easement. The Court went on to find that the dock would not violate another landowner’s riparian rights and ordered DEP to grant the Association’s application.
 

First District Court of Appeal certifies question of great public importance concerning revisions to the Administrative Procedures Act. Board of Trustees of the Internal Improvement Trust Fund v. Day Cruise Ass’n, 26 Fla. L. Weekly D2240 (Fla. 1st DCA September 13, 2001).

A summary of the initial opinion in this case can be found in ELULS Reporter Vol. XXIII, No. 1, November 2001, p. 7. The Court on Motion for Clarification, Rehearing, Certification, or Rehearing En Banc again distinguished two cases the Board asserted were in conflict with its decision and denied the remaining motions with the exception of certifying the following question as one of great public importance:

Is proposed rule 18-21.004(1)(I) an invalid exercise of delegated authority within the meaning of section 120.52(8)(b) or (c), Florida Statutes (1999)?
 

The First District Court of Appeal found, pursuant to the Lucas standard, that a temporary land use injunction was not a compensable regulatory taking, but simply a permitting delay. Bradfordville Phipps Limited Partnership v. Leon County, 26 Fla. L. Weekly D2784 (Fla. 1st DCA, November 26, 2001).

Bradfordville Phipps Limited Partnership (“Partnership”) appealed the Order granting Leon County’s (“County”) motion for summary judgment on its inverse condemnation claim. In December 1998, the circuit court enjoined the County from issuing any building or development permits in the Bradfordville Study Area (BSA) (wherein the Partnership property was located) until the County complied with certain sections of its Comprehensive Plan. The Partnership after applying for development permits and being denied -- because of the injunction -- brought an inverse condemnation action against the County. Meanwhile, the County enacted ordinances that restricted development in the BSA in an attempt to comply with the injunction and the Comprehensive Plan. After motions for summary judgment were filed, the circuit court lifted the injunction.

The circuit court, in granting the County’s motion for summary judgment, found that the Partnership failed to meet the “ripeness” test, and that even if it had, it still could not establish a compensable taking since the restrictions were temporary. Regarding the ripeness issue, the district court questioned whether a ripeness analysis is even appropriate, given the temporary regulatory takings claim. The Court recognized that it would make little common sense to force a landowner to immediately obtain a final decision regarding what development would be allowed when the land, after the injunction is lifted, will be allowed to be used in a variety of ways. Nonetheless, the Court found that to the extent the ripeness analysis is required, the case was not ripe because the Partnership never challenged the injunction or obtained a final decision from the County regarding the extent the regulation limited development of the property.

Notwithstanding the ripeness issue, the district court went on to find that the Partnership had not established it had been “deprived of all or substantially all economically beneficial use of its property” under the test in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). The Court, relying on Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 216 F.3d 764 (9th Cir. 2000), concluded that a temporary planning moratorium “could rarely, if ever, completely deprive the owner of all economically beneficial use.” The rationale being that the future use of the property could retain a substantial present value since the moratorium was temporary. Yet, the Court noted that if a temporary moratorium existed long enough to eliminate all present value of a property’s future use, then a categorical taking may occur.
 

Structures erected seaward of an erosion control line (ECL) pursuant to § 161.201, Fla. Stat., need not have “the prevention of erosion” as its only purpose. Wallace Corp. v. City of Miami Beach, 26 Fla. L. Weekly D2208 (Fla. 1st DCA September 11, 2001).

The City of Miami Beach sought a permit from the Department of Environmental Protection (DEP) to build a 3,500 ft. beachwalk running north/south on Miami Beach from the Art Deco District at the south end of the beach to the new Loew’s Miami Beach Convention Center Hotel on the north end. The beachwalk was to be constructed roughly along the established erosion control line (ECL) varying from 12 feet landward to 85 feet seaward of the ECL. Wallace, owner of a hotel to be affected by the beachwalk, petitioned for an administrative hearing and the beachwalk was subsequently revised to not cross Wallace’s property -- stopping and starting accordingly on each side of the hotel.

After being dismissed for lack of standing by the administrative law judge (ALJ), DEP remanded the case to the ALJ asking if the project complied with the “required for the prevention of erosion” language of § 161.201, Fla. Stat. The ALJ, considering evidence that the beachwalk would help prevent erosion by cutting down on unauthorized pedestrian traffic across sand dunes, found that “the project in its entirety is required for the prevention of erosion.” DEP adopted the ALJ’s findings and conclusions on this issue.

On appeal, Wallace argued that the record did not contain any evidence that the project was “required for the prevention of erosion.” The district court first found that “nothing in the statute prevents a structure from serving more than one purpose, although one substantial purpose must be to address a recognized need to prevent erosion.” The court rejected Wallace’s reading of “required” to mean “needed” or “essential” and Wallace’s argument that erosion control was only an “afterthought.” The Court stated that “[e]ven if we agreed with Wallace . . . the ALJ expressly found that the structure here was required to prevent erosion and we conclude that the record supports such a finding.” Because there was competent substantial evidence to support the findings, the Court affirmed.
 

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