Note: Status of cases is as of December 14, 2001. Readers are
encouraged to advise the authors of pending appeals that should be
included.
FLORIDA SUPREME COURT
Costco Wholesale Corp. v. Orange County, Case No. SC0382.
Petition to review a Fifth DCA case holding that an ordinance which
required a 5,000 foot minimum setback between liquor package stores
was arbitrary and capricious and therefore unconstitutional, as it
lacked a reasonable relationship to public health, morals and welfare.
780 So. 2d 198 (Fla. 5th DCA 2001). Status: Oral argument set for
January 7, 2002.
Link to initial brief.
Panda Energy International v. Jacobs, et al., Case No. SC01284.
Appeal of a determination of need issued by the Public Service
Commission for construction of a new 530 megawatt power plant in Polk
County. Status: Oral argument held December 6.
Barley v. South Florida Water Management District, Case No.
SC001998. Petition to review a Fifth DCA decision holding that the
"Polluter Pays" amendment to the constitution did not bar the water
management district from levying a tax to clean up the Everglades on
all property owners within the district, because the amendment is not
self-executing. 766 So. 2d 433 (Fla. 5th DCA 2000). Status:
Oral argument held August 28.
Sarnoff v. Department of Highway Safety & Motor Vehicles, Case
No. SC01-351. Petition to review the constitutionality of the $10 fee
motorists in six counties were required to pay up until July 2000
under the mandatory auto emissions inspection program. The First DCA
reversed an order granting class certification on the ground that the
plaintiffs had failed to exhaust their administrative remedies by
first seeking a refund of the fee from the state comptroller. 776 So.
2d 976 (Fla. 1st DCA 2001). Status: Oral argument held November 7.
Pinecrest Lakes, Inc. v. Shidel, Case No. SC012429. Petition to
review a Fourth DCA decision holding that because section 163.3194 of
the Florida Statutes provides for injunctive relief to prevent a local
government from taking action on a development order that is
inconsistent with its comprehensive plan, courts are required to grant
an injunction whenever an aggrieved party shows that a project is
inconsistent with the comprehensive plan, notwithstanding the fact
that the County Commission had earlier determined that the development
order was consistent with the comprehensive plan and that issuance of
the injunction would require the builder to remove five apartment
buildings.
795 So. 2d 191 (Fla. 4th DCA 2001). Status: Petition filed on
November 5.
City of Jacksonville v. Dixon, Case No. SC01-103. Petition to
review a First DCA decision reversing a circuit court order which
denied the Dixons' motion to enjoin the City from implementing an
ordinance (development order) which would rezone certain property to
allow construction of a hotel. Applying the strict scrutiny test, the
court held that the development order was inconsistent with the City's
comprehensive plan and that the City was not entitled to deference in
its interpretation of its own comprehensive plan.
774 So. 2d 763 (Fla. 1st DCA 2000). Status: Petition filed January
16.
FIRST DCA
Woodhouse, et al. v. Suwannee American Cement Company, Inc., et al.,
Case No. 1D00-2342. Appeal of a DEP final order dismissing a request
for administrative hearing to contest DEP's intent to issue an air
construction permit for a proposed cement plant. The final order
adopted the ALJ's recommendation to dismiss the amended petition. 2000
WL 1185503 (DEP00-0216). Status: Affirmed per curiam on October 19.
Board of Trustees of the Internal Improvement Trust Fund v. Day Cruise
Association, Case No. 1D00-1058. Appeal of a DOAH final order
holding that a proposed Trustees rule prohibiting gambling "cruises to
nowhere" from docking at sovereign submerged lands was an invalid
exercise of delegated legislative authority. DOAH Case No. 99-4437RU.
Status: The court affirmed on September 13. On November 2, on motion
for clarification, rehearing, certification or rehearing en banc, the
court certified the following question: "Is proposed rule
18-21.004(1)(i) an invalid exercise of delegated authority within the
meaning of section 120.52(8)(b)?" 26 Fla. L. Weekly D2620.
Board of Trustees of the Internal Improvement Trust Fund v. Support
Terminals Operating Partnership, L.P., Case No. 1D00-3268. Appeal
of a DOAH award of attorney's fees pursuant to section 120.595(2) of
the Administrative Procedure Act based on a successful challenge to a
Trustees rule. Status: Affirmed per curiam on October 25. 796 So. 2d
1176.
Bradfordville Phipps L.P. v. Leon County, Case No. 1D01-541.
Appeal of a trial court holding in favor of the County in an inverse
condemnation suit. The County denied Phipps' application for a
development permit for property in the Bradfordville Study Area on the
ground that an injunction against development there had been entered
by a trial court in another case. Phipps claimed that the County's
settlement agreement in the other case not to challenge the injunction
deprived Phipps of the beneficial use of its property and constituted
a taking. The trial court held that the taking claim was not ripe
because Phipps had not intervened in the other case, the property was
not taken because it could still be used for some other beneficial
purpose, and that the imposition of the development restrictions was
not "reasonably unexpected." Status: The court affirmed on November
26. 26 Fla. L. Weekly D2784.
Parker Family Trust v City of Jacksonville, Case No. 1D01-353.
Appeal of a circuit court order denying petition for writ of
certiorari filed by a landowner seeking to compel the Jacksonville
City Council to approve its rezoning application. The City had
previously denied the landowner's rezoning request, based solely on
the testimony of neighboring property owners. The circuit court
quashed the City's order for lack of substantial competent evidence to
support the denial. On remand, the City reopened the public hearing,
heard additional testimony in opposition to the rezoning from a
professional planner retained by the neighbors and again denied the
rezoning. The developer again challenged the denial in circuit court,
and this time, the circuit court held that the City's decision was
supported by competent substantial evidence on remand. Status: On
December 17, the court held that the lower court's order does not
reflect that it evaluated the City's action in light of the "law of
the case" doctrine, quashed the order, and remanded for further
proceedings. 2001 WL 1598368.
SECOND DCA
Lee County v. South Florida Water Management District, Case
No. 2D00-1773. Appeal from a nonfinal order of the circuit court
denying Lee County's petition to temporarily enjoin the SFWMD from
implementing an emergency plan to discharge a large volume of fresh
water from Lake Okeechobee into the Caloosahatchee River. Status: The
court affirmed on October 12. 26 Fla. L. Weekly D2484.
THIRD DCA
Crane Point Assoc. v. Department of Health, Case No.
3D01-2110. Appeal from a circuit court decision enjoining the
operation of the Crane Point Resort and Marina until construction and
completion of an onsite sewage disposal system, in order to abate an
ongoing sanitary nuisance. Status: The court affirmed on October 31.
26 Fla. L. Weekly D2602.
FOURTH DCA
Board of Trustees of the Internal Improvement Trust Fund v. Lost Tree
Village, Case No. 4D00-3405. Appeal of a circuit court
decision holding that Lost Tree Village holds the title to submerged
lands surrounding certain barrier islands in an aquatic preserve north
of Vero Beach. Status: On October 10, the court affirmed in part and
reversed in part, holding that there was no ambiguity in the deed as
to the amount of land transferred, but that remand was appropriate to
determine if a latent ambiguity in the deed exists. 26 Fla. L. Weekly
D 2439.
Pinecrest Lakes, Inc. v. Brooks, et al., Case No. 4D99-2641,
and Pinecrest Lakes v. Martin County, Case No. 4D99-2725.
Appeal of a final judgment in a s. 163.3215 consistency challenge by
adjacent homeowners to a development order, which held that the
development order was inconsistent with the Martin County
Comprehensive Plan and granting an injunction compelling removal of
apartment buildings built pursuant to the order and prohibiting any
further construction. Status: The court affirmed on September 26. 795
So. 2d 191. Editor's Note: A petition for review has been filed with
the Florida Supreme Court. See Case No. SC012429 under that heading.
Taylor v. City of Riviera Beach, Case No. 4D01-251. Appeal of
a circuit court decision dismissing with prejudice Taylor's claim for
a regulatory taking of submerged land located within Riviera Beach,
where Taylor's request for an amendment to the City's comprehensive
plan to allow low-density residential development of the land was
rejected, and her later application for a building permit to build a
house was denied. Status: On December 12, the court reversed the lower
court's opinion to the extent that it dismissed the regulatory takings
claim and remanded for further proceedings on that claim. 2001 WL
1577869.
FIFTH DCA
Butterworth v. Tropic Casino Cruises, Inc., d/b/a SunCruz Casinos,
Case No. 5D01-98. Appeal of a circuit court decision denying an
injunction restraining SunCruz from operating a gambling vessel in the
State of Florida as a "cruise to nowhere" and granting summary
judgment in favor of SunCruz. Status: The court affirmed on October
19. 796 So. 2d 1283.
Mann v. Orange County, Case No. 5D01-1741. Petition for
certiorari review of a circuit court decision upholding the County's
action in denying a proposed rezoning request based on a lack of
adequate school facilities to support the planned residences. Status:
Petition filed on June 14.
U.S. SUPREME COURT
Wetlands Action Network v. Army Corps of Engineers, Case No.
00-1692. Petition to review a Ninth Circuit opinion holding that the
National Environmental Policy Act (NEPA) does not require the Corps to
assess the cumulative environmental impacts of the entire first phase
of a 1,000-acre development on the California coast in order to grant
a permit to dredge and fill in the wetland portion of the parcel and
does not require the Corps to consider all three phases of the
development in a single NEPA analysis, and upholding the Corps'
Finding of No Significant Impact. 222 F.2d. 1105 (9th Cir. 2000).
Status: Petition denied October 1.
United Haulers Assoc. v. Oneida-Herkimer Solid Waste Management
Authority, Case No. 00-686. Petition to review a Second Circuit
opinion holding that ordinances which required waste generated within
the subject counties to be delivered to publicly owned facilities in
the counties did not violate the Commerce Clause of the federal
constitution. 261 F. 3d 245. Status: Petition for review filed October
24.
Gilmore v. Waste Management Holdings, Case No. 01-808. Petition
to review a Fourth Circuit opinion holding that the Virginia statute
that capped the amount of waste landfills in the state could accept
and restricting the use of barges to transport waste violated the
federal Commerce Clause. 87 F. Supp.2d 536 (E.D.Va. 2000). Status:
Petition filed October 30.
Newell Recycling Co. v. EPA, Case No. 00-1534. Petition to
review a Fifth Circuit decision upholding a $1.3 million penalty under
the Toxic Substances Control Act for failure to properly dispose of
PCB-contaminated soil. 231 F. 3d 204 (5th Cir. 2000). Status: Petition
denied October 1.
Mason v. Thompson, Case No. 00-1828. Petition to review a Ninth
Circuit decision holding that the U.S. Food and Drug Administration
was not liable for any deaths that may have been caused by reduced
magnesium levels in bottled mineral water which is regulated by the
FDA. 7 Fed. Appx. 587 (9th Cir. March 21, 2001). Status: Petition
denied October 1.
THIRD CIRCUIT
South Camden Citizens in Action v. New Jersey Department of
Environmental Protection, Case No. 01-2224, 01-2296. Appeal of a
district court decision granting a preliminary injunction prohibiting
the NJDEP from issuing an air permit for a cement processing facility,
on the grounds that the disparate impacts from granting the permit
violated Title VI of the Civil Rights Act. 145 F.Supp.2d 505 (D.N.J.
2001). Status: Oral argument held September 25.
NINTH CIRCUIT
California v. Norton, et al., Case No. 01-16637. Appeal of a
district court decision holding that the U.S. Minerals Management
Service illegally extended 36 oil and gas development leases along
California's central coast because it failed to comply with the
Coastal Zone Management Act and the National Environmental Policy Act.
California v. Norton, Case No. 99-4964 (N.D.Cal. June 21, 2001).
Status: Notice of appeal filed August 22.
Pronsolino v. United States, Case No. 00-16026. Appeal of a
district court decision upholding EPA's authority to require TMDLs
(cleanup plans) for waters impaired only by non-point sources of
pollution. 91 F.Supp.2d 1337 (N.D. Cal. 2000). Status: Oral argument
held on July 9.
A.G.G. Enterprises, Inc, v. Washington County, Oregon, Case No.
00-35510. Appeal of a district court decision holding that recyclable
materials are "property," not "waste," and therefore not subject to
federal regulation under RCRA. 2000 WL 361892 (D. Ore. 2000). Status:
Oral argument held on November 5.
Save Our Summers v. Washington Department of Ecology, Case
No.01-35632. Appeal of a district court decision holding that citizens
of Spokane, Washington, could not challenge an agricultural practice
called stubble burning under the Americans with Disabilities Act,
despite apparent harm caused to a group of disabled children in
Spokane. 132 F. Supp. 2d 896 (E.D. Wash. 1997). Status: Order of
dismissal based on settlement of the parties entered November 30.
D.C. CIRCUIT
Environmental Defense Fund v. EPA, Case No. 98-1363. Challenge
to EPA's revocation of the one-hour ozone standard for 2,901 counties
on June 5, 1998, on the ground that EPA must first formally
redesignate the counties as being in attainment with the standard.
Status: In abeyance pending settlement discussions.
American Corn Growers Assoc. v. EPA, Case No. 99-1348. Challenge to
EPA's final regional haze rule, on the ground that EPA failed to
consider adverse impacts of the rule on farmers. Status: Oral argument
scheduled for February 25, 2002.
American Iron & Steel v. EPA, Case No. 00-1435. Petition to
review EPA's final air pollution monitoring rule and performance
standard published August 10, 2000, for requiring use of continuous
opacity monitors. Status: Motion granted holding case in abeyance
pending rulemaking; status report due December 27.
American Farm Bureau Federation v. Whitman, Case No. 00-1320;
The TMDL Coalition v. EPA, Case No. 00-1468; and consolidated cases.
Petitions to review EPA's Total Maximum Daily Load (TMDL) rule.
Status: On July 16, EPA filed a motion to stay to allow time to review
the rule, and proposing to extend the effective date of the TMDL rule
by 18 months; status report due January 2, 2002.
National Petrochemical & Refiners Association v. EPA, Case No.
01-1052. Petition to review a Clinton-era EPA rule that would cut by
90 to 95% allowable emissions of particulate matter and nitrogen
oxides from diesel trucks and buses by 2002, and would require diesel
fuel to have an average sulfur content of 15 ppm by 2006, a 97%
reduction. Status: Petition filed October 1.
_________________
Lawrence E. Sellers, Jr.,
lsellers@hklaw.com, received his J.D. from the University of
Florida College of Law in 1979. He is a partner in the Tallahassee
office of Holland & Knight LLP.
Susan L. Stephens,
slstephe@hklaw.com, received her J.D. from the Florida State
University College of Law in 1993. She is a partner in the Tallahassee
office of Holland & Knight LLP.
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