Water Management District’s levy of 0.1 mill tax and other ad valorem taxes in conformity with Everglades Forever Act constitutional as applied to non-polluter property owners within the Okeechobee Basin. Barley v. South Fla. Water Mgmt. Dist., 27 Fla. L. Weekly S308 (Fla. April 11, 2002).

     The South Florida Water Management District (“District”) regulates the Okeechobee Basin and is authorized to levy ad valorem taxes on property within the District under article VII, section 9 of the Florida Constitution and §§ 373.503 and 373.0697, Fla. Stat. (1993). Non-polluter Okeechobee property owners (Owners) argued that the Florida Supreme Court’s interpretation of article II, section 7(b), in Advisory Opinion to the Governor—1996 Amendment 5 (Everglades), 706 So. 2d 278 (Fla. 1997) ( 1997 Advisory Opinion), established an implied right for non polluting property owners to be exempt from taxes for pollution abatement in the Everglades Protection Area or Everglades Agricultural Area (EAA). The circuit court granted the District’s motion for judgment on the pleadings and held that a cause of action would not be established by proving the Owners’ allegations.

     The circuit court based its decision on the Florida Supreme Court’s discussion of the consistency of the Everglades Forever Act (EFA) and Amendment 5 in 1997 Advisory Opinion, as well as the standard of review governing the impact of non-self-executing constitutional provisions. In 1997 Advisory Opinion, the Court held that Amendment 5 is not self-executing and that legislative action is required to implement Amendment 5, although the Everglades Forever Act cannot be deemed the implementing legislation. Further, the Court held that the “primarily responsible” phrase in Amendment 5 requires individual polluters to bear their share of the costs associated with pollution abatement found to be attributable to them.
On appeal, the Fifth DCA affirmed in a divided decision. The Owners argued that this case was not a revisitation of the 1997 Advisory Opinion. Instead, the Owners argued that the case presented factual issues and an as-applied constitutional challenge to the District’s discretionary 0.1 mill tax levy upon non-polluting property owners within the Okeechobee Basin. Thus, owners claimed that the Florida Supreme Court’s interpretation of Article II, section 7(b), in 1997 Advisory Opinion established an implied right not to have to contribute for pollution abatement in the EPA or EAA. However, the District Court determined that issues of inconsistency with the EFA and Article II, section 7(b) were considered in the 1997 Advisory Opinion and, therefore, the Court had already answered the issues presented by the Owners’ petition.

     The Florida Supreme Court, in affirming the DCA’s decision, agreed that the Court’s 1997 Advisory Opinion answered the fundamental issues in this case. In 1997 Advisory Opinion, the Court stated that the term “primarily responsible” would be applied within its ordinary meaning that includes a recognition that individual polluters would not bear the “total burden.” Therefore, the EFA remains in effect, and respondent’s levy of 0.1 mill tax and other ad valorem taxes in conformity with the EFA is not unconstitutional as applied to the Owners.

Constitutional rights of property owner violated where designation of blight over entire surrounding area is only public purpose supporting taking. Rukab v. City of Jacksonville Beach and Jacksonville Beach Cmty. Redevelopment Agency, 27 Fla. L. Weekly D468 (Fla. 1st DCA February 26, 2002).

     The circuit court held that the City and the Agency had shown a public purpose and reasonable necessity for taking the Rukab’s property. The First District Court of Appeal, in addition to considering whether the City and Agency made a sufficient showing of public necessity, addressed two additional issues. First, whether a landowner whose property is being condemned pursuant to the Community Redevelopment Act of 1969 (Act) may challenge the designation of a “blighted” area during an eminent domain proceeding. Second, whether a person who purchases property within an area previously designated as blighted is precluded from challenging that designation in an eminent domain proceeding.
Agencies have statutory authority to clear urban blight by acquiring real property in a designated area. The Jacksonville Beach Redevelopment Agency (“Agency”), established in the mid-1980’s, designated 350 acres in the south end of Jacksonville Beach as a blighted area. The Rukab property is zoned residential, but it is situated in the 20-acre South Beach Mixed-Use Project area (20-acre Area). The City entered into a development agreement with Sleiman Enterprises to build a shopping center and multi-family apartments in the 20-acre South Beach Mixed-Use Project area. In furtherance of the development agreement, the City filed an action in eminent domain against various property owners in the 20-acre Area, including the Rukab’s. The Rukabs contested the taking and the City’s assertion that the property was needed and necessary for the purpose of developing the Southend Community Redevelopment Area.
In City of Jacksonville Beach v. White, No. 96-03185-CA (Fla. 4th Cir. Ct. June 25, 1996), the court upheld the 1985 finding of blight and the 1987 delineation of the Redevelopment Area, further finding that the statutory requirements had been met. However, the Rukabs sought de novo review of the 1985 blight determination and 1987 designation of the Redevelopment Area, contending that the City still had to establish public purpose and necessity. The circuit court disagreed and instead determined that the order in White had already decided those issues.

     The First DCA, holding that a property owner must be afforded an opportunity for a full hearing, reversed and remanded for a new hearing on the issue of public purpose and necessity. Further, relying on Baycol, Inc. v. Downtown Dev. Auth. of Fort Lauderdale, 315 So. 2d 451, 455 (Fla. 1975), the court stated that the burden is on the condemning authority to establish a public purpose and reasonable necessity.

     The First DCA held that purchasers of property subject to state regulation are not precluded from raising a claim of a regulatory taking, even if they were aware of the regulation at the time that they purchased the property, relying on Palazzolo v. Rhode Island, 533 U.S. 606 (2001). Further, the First Circuit found no legal support for the contention that the Rukabs were precluded from asserting their constitutional rights in the eminent domain proceeding, even though they bought the property subject to the previous determination of blight. A city fails to show necessity when the evidence does not support a designation sufficient to establish a taking. The only public purpose supporting the taking of the Rukabs’ land was the designation of blight over the entire area. Therefore, utilization of the power of eminent domain without a showing of public purpose and necessity with respect to the Rukabs’ property would violate the Rukabs’ rights guaranteed by Article X, section 6, Florida Constitution.

Miami-Dade County zoning code criteria declared invalid due to lack of objective standards. Miami-Dade County v. Omnipoint Holdings, Inc., 27 Fla. L. Weekly D516 (Fla. 3d DCA March 6, 2002).

     Omnipoint Holdings, Inc. [Omnipoint] applied for an unusual use, a non-use variance, and a modification of a condition attached to an earlier resolution to erect a 148' telecommunications monopole. The Miami-Dade County’s Community Zoning Appeals Board [Board] denied the application. Omnipoint sought certiorari review in the circuit court, which directed the Board to grant the application. The circuit court found: (1) that the record before the Board lacked competent substantial evidence supporting the Board’s denial of the application, and (2) that the Board’s decision was in violation of the Federal Telecommunications Act, 47 U.S.C. § 332 (1996).

     The County sought a writ of certiorari quashing the circuit court decision. The Third DCA first found sections 3-13(e) and 33-314 (A)(7) of the County’s zoning code-- which contains criteria for the grant or denial of unusual uses, non-use variances, and modifications of conditions-- unconstitutionally vague. Citing University Books & Videos, Inc. v. Miami-Dade County, 132 F. Supp. 2d 1008, 1017 (U.S.D.C., S.D. 2001), the court found the sections legally deficient because it lacked objective criteria for the County’s zoning board to use in their decision making process.

     Further, the court rejected subjective and vague criteria, such as public interest considerations and incompatibility holding that the illegality of these criteria effectively prohibited cellular service under the Federal Telecommunications Act, 47 U.S.C. §332(c)(7)(B)(I)(II). Therefore, the district court concluded that the circuit court had reached the right result, although on a different basis. Accordingly, it denied the County’s petition for writ of certiorari and left intact the circuit court’s remand to the Board for the purpose of granting approval of Omnipoint’s application for a monopole.

Lower court erred in granting homeowner’s declaratory action after finding that homeowner association unreasonably denied application to erect antennae on homeowner’s property.  Emerald Estates Cmty. Ass’n v. Gorodetzer, 27 Fla. L. Weekly D1164 (Fla. 4th DCA May 15, 2002).

     First, the Association had not acted reasonably in rejecting the Gorodetzer’s application. Second, the originally erected antennas were “grandfathered” when control of the Association was turned over to the homeowners. The Gorodetzers purchased their home in the Emerald Estates subdivision from the developer in 1995 which was subject to a Declaration of Restrictive Covenants. While the Homeowner’s Association was controlled by the developer the Gorodetzers erected four ham radio antennae in their backyard. After the control of the Association was turned over to the Homeowners, the Board notified the Gorodetzers that the antennae were interfering with the television reception and was installed without the approval of the Architectural Control Committee. After removing the antennae, the Gorodetzers filed an application with the ACC and Board which was denied. The Gorodetzers then filed a declaratory judgment action arguing their application was unreasonably denied. The trial court sided with the Gorodetzers on two bases.

     On appeal, the Fourth DCA reversed, finding the record was insufficient to support a finding that the original antennae had been “grandfathered” because the Declaration, which is afforded a strong presumption of validity, contained an express anti-waiver provision. The lower court also improperly relied upon the wrong sections of the controlling documents, the Declaration and the Community Standards. Instead, the clear language of the Declaration represented an express prohibition against any erection of any antennae without prior approval of the ACC. The DCA emphasized a reasonable unambiguous restriction will be enforced according to the intent of the parties as expressed by the clear and ordinary meaning of its terms.

     Further, after review of the pertinent covenants in pari materi, the Fourth District Court decided that the document expressed the clear intent of the Association, through the ACC, to reserve control over the architectural design and aesthetics of the community. Therefore, the district court determined that the Gorodetzers had not met their burden to prove that the ACC, as the enforcing authority, acted in an unreasonable or arbitrary manner. Additionally, the Court reversed the attorneys’ fees awarded to the Gorodetzers as the prevailing party below, and the Association’s motion for appellate attorney’s fees was granted.

DEP must grant default Environmental Resource Permit when the department does not approve or deny an application within the prescribed time period. Tuten v. Dept. of Envtl. Prot., 27 Fla. L. Weekly D1150 (Fla. 4th DCA May 15, 2002).

     Tuten requested verification from the South Florida Water Management District (SFWMD) that his proposed land development project conformed to the “No Notice General Permit for Activities in Uplands” requirement. SFWMD indicated by letter that the proposed development could be undertaken but various permits were required. Accordingly, Tuten applied to the Port St. Lucie DEP office for an Environmental Resource Permit (ERP). The application was received by DEP on August 31, 2000. St. Lucie DEP forwarded the application to its South District office. The South District office subsequently returned the unprocessed application to Tuten and informed him that it was his responsibility to resubmit the application to the SFWMD.

     The SFWMD received a copy of the application and DEP’s letter to Tuten on October 9, 2000, noting a receipt date of October 13, 2000. No further action occurred until December 5, 2000, when Tuten spoke with a DEP employee who acknowledged that the thirty-day review period for the DEP to request additional information had elapsed. On December 6, 2000, the Director of DEP District Management wrote to Tuten, representing receipt of the application on October 13, 2000, and indicating that the project would not be approved. DEP subsequently faxed Tuten a waiver of the ninety-day time limit under §§ 120.60(1) and 403.0876, Fla. Stat.

     Tuten possessed a stamped document showing an application receipt date of August 31, 2000, and he questioned DEP’s statement that the application had been received on October 13, 2000. DEP sent another letter indicating receipt of the application on October 13, 2000, and asked for additional information to process the application by January 5, 2001. DEP requested the waiver form again on January 8, 2001, and Tuten responded that his attorney was reviewing it. On January 11, 2001, the DEP promulgated an order denying the ERP.
The Fourth DCA agreed with the landowner that the ninety-day period began to run from first receipt of the application on August 31, 2000. The “receipt” of an application, under §§ 373.4141(1) and 120.60(1), Fla. Stat. (2000), triggers an agency’s obligation to deny or approve the application or request additional information. Therefore, DEP had to issue a default permit to Tuten because it had failed to approve or deny Tuten’s permit within the requisite ninety-day period. However, the district court also held that the issuance of a default permit did not preclude DEP from taking measures to protect the environment. Citing Manasota-88, Inc. v. Agrico Chem. Co., 576 So. 2d 781, 783 (Fla. 2d DCA 1991), the Fourth District Court reversed and remanded to require DEP to issue a default permit after a hearing to determine if conditions should be imposed to ensure the protection of the environment.

ALJ determination that rule amendment language closely tracks statutory language affirmed. Sierra Club v. St. Johns River Water Mgmt., 27 Fla. L. Weekly D846 (Fla. 5th DCA April 12, 2002).

     The Fifth DCA reviewed whether an ALJ correctly concluded that a rule amendment governing cumulative impact analyses constituted a valid exercise of delegated legislative authority. The St. Johns River Water Management District (District) initially interpreted its rules and adopted a policy that no adverse cumulative impacts would be found if a permit applicant offered mitigation within the same drainage basin to offset the adverse impacts of the proposed project. The Sierra Club filed a challenge, however, claiming that the District’s cumulative impacts policy in the District’s Applicant Handbook constituted an unadopted rule in violation of § 120.54(1)(a), Fla. Stat. (1999).

     After Section 373.414(8), Fla. Stat., was amended in 2000, the Sierra Club dismissed its challenge in the unadopted rule case and the District amended its cumulative impacts rule. The Sierra Club then challenged the rule amendment, arguing that it modified and contravened the statute in violation of § 120.52(8)(c), Fla. Stat. The parties submitted the issue to an ALJ without a formal hearing. The ALJ subsequently held that the District’s rule amendment tracked the language of § 373.414(8) and did not enlarge, modify, or contravene the statute. On appeal, the Fifth District Court reviewed the issue de novo and affirmed the ALJ’s decision.

County and DCA entitled to deference on interpretation of whether land use code meets comprehensive plan’s requirement. Sumter Citizens Against Irresponsible Dev. v. Dept. of Cmty. Affairs, 27 Fla. L. Weekly D903 (Fla. 5th DCA April 19, 2002).

     Sumter County decided to amend its Future Land Use map to designate 4,677 acres of land from Agricultural to Planned Unit Development (PUD). Several individuals and a grassroots organization, Sumter Citizens Against Irresponsible Development (SCAID), appealed a final order of the Florida Department of Community Affairs (Department) rejecting a challenge to the County’s decision. On appeal, the Fifth District Court of Appeal affirmed on the substantive issues presented.

     There was competent substantial evidence to support the factual findings of the final order. Further, the Fifth DCA also concluded that the County and the Department’s interpretation was entitled to deference when determining whether 88.9% met the Comprehensive Plan’s requirement that “approximately 90%” of the land area be maintained in land uses such as agricultural, conservation, and open spaces. Finding for the County and Department on the merits, the Fifth DCA declined to address the issue of whether SCAID had standing.
 

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.