PORTIONS OF SWFWMD RULES INVALIDATED AS EXCEEDANCE OF DELEGATED LEGISLATIVE AUTHORITY

Southwest Florida Water Management District v. Save the Manatee Club, Inc., 2000 WL 1760116 (Fla. 1st DCA 2000)

Save the Manatee Club filed a petition to invalidate parts of Rule 40D-4.051, Florida Administrative Code (F.A.C.), which authorized exemptions from environmental resource permitting based solely on prior governmental approval. The Division of Administrative Hearings held portions of the rule were an invalid exercise of delegated legislative authority and the Southwest Florida Water Management District (District) appealed.

The First District Court of Appeals affirmed the order and concluded that sections of the rule at issue were an invalid exercise of delegated legislative authority in violation of Section 120.52, F.S., because they did not implement or interpret a specific power granted by the applicable enabling statute in accordance with Section 120.52(8), F.S. (1999). Section 373.414(9), F.S., grants the District authority to issue environmental resource permits according to statutory criteria established in the Florida Water Resources Act of 1972. However, it expressly limits the District's authority to grant exemptions from the permitting requirements. In this regard, section 373.414(9), F.S., states that such rules may establish exemptions and general permits if they do not allow significant adverse environmental impacts to occur individually or cumulatively. The Court determined that the challenged exemptions granted by Rule 40D-4.051, F.A.C., were not based on the absence of potential impact but instead on prior governmental approval which was not an authorized consideration in the statute. Therefore, the Court in construing the 1999 revision to Section 120.52 (8) held that Sections (3),(5), and (6) of Rule 40D-4.051, F.A.C., did not "implement or interpret" a specific power conferred by statute and as a result were invalid.

MARTIN COUNTY'S REFUSAL TO AMEND COMPREHENSIVE PLAN WAS FAIRLY DEBATABLE AND RATIONALLY RELATED

Martin County v. Section 28 Partnership, Ltd., 2000 WL 1816832 (Fla. 4th DCA 2000)

Section 28 Partnership (Partnership) sought to develop a 636-acre property, previously designated as rural, agricultural, and agricultural ranchette, as a planned unit development consisting of residential units, a golf course, clubhouse, and retail and office space. The Partnership applied for amendments to Martin County's comprehensive growth management plan and future land use map, and sought to create a new urban service district which would allow it to develop the property more intensely. Martin County (County) rejected the Partnership's applications for amendment and the Partnership filed suit in Circuit Court. The trial court found that the County's refusal to enact the comprehensive plan amendments denied the Partnership due process and entered a final judgment awarding injunctive relief and monetary damages. Martin County appealed.

The Fourth District Court of Appeal reversed and remanded with directions to enter final judgment in favor of the County. Amendments to comprehensive land use plans are legislative decisions subject to the highly deferential "fairly debatable" standard of review which requires approval of a planning action if reasonable persons could differ as to its propriety. Substantive due process challenges are analyzed under the "rational basis" test which states that a legislative act will not be considered arbitrary and capricious if it has a rational relationship with a legitimate general welfare concern. The Partnership failed to prove the County's decision against amending its comprehensive plan lacked a rational relationship with a legitimate general welfare concern. The Partnership did not meet its burden to show that the County's action was so unreasonable and arbitrary as to not be even fairly debatable. In addition, the County presented an overwhelming amount of evidence that the land use and urban service designations, as applied to the subject property, as well as the accompanying zoning regulations, were reasonable from a planning, economic, environmental, and fiscal responsibility standpoint. According to the Court, the record below contained abundant evidence supporting the County's decision, which was based on a legitimate interest in maintaining low densities in an environmentally sensitive area and accomplishing growth management goals for the subject property and the County as a whole. The Court, in reversing the trial court, concluded that it was difficult to determine that the County's decision was anything but "fairly debatable."

CONTINUING TORT THEORY APPLIED TO ACTION FOR INVERSE CONDEMNATION

Millender v. State of Florida, Department of Transportation, 2000 WL 1759859 (Fla. 1st DCA Dec. 1, 2000) 

In 1975, the Florida Department of Transportation (DOT) rerouted the Carrabelle River channel located in Franklin County in order to build a new Bridge. Millender, located within blocks of the bridge, found his property eroding. Millender constructed a sea wall to retard erosion but was required, after eight years of litigation with DEP, to remove the sea wall. The sea wall was removed in 1993 and erosion of the property continued. Millender filed an action against the DOT for inverse condemnation and injunctive relief.

The trial court held as a matter of law, that Millender's 1993 action was barred by the Statute of Limitations. Millender appealed the final judgment.

The First District Court of Appeals applied the continuing torts doctrine and the Dickinson stabilization doctrine, reversed the trial court, and held that Millender's cause of action accrued, and the statute of limitations began to run, when the DEP required the removal of the seawall.

Treating the diversion of the river as a continuing tort rather than as a permanent taking of all lands affected by it, and applying the rule that statutes of limitation run from the time of the last tortious act, the Court determined that Millender timely requested injunctive relief.

The Court arrived at a similar result by applying the Dickinson stabilization doctrine which states that the statute of limitations for inverse condemnation begins to run from the time the situation becomes "stabilized." The source of Millender's claim, the erosion caused by diversion of the river, was not a single event but rather was continuous. Under the Dickinson doctrine, an owner may postpone suit until the situation becomes stabilized. Millender, the Court stated, was not required to resort to either piecemeal or premature litigation prior to such stabilization. The final account in the instant case could be struck only when Millender was prevented from protecting his building from falling into the river with a seawall. 

SAVING PORTION OF PROPERTY FROM WHOLE TAKING DOES NOT ENTITLE ATTORNEY TO ADDITIONAL FEES

State of Florida, Department of Transportation v. Patel, 768 So. 2d 1173 (Fla. 2nd DCA 2000)

The Florida Department of Transportation (DOT) filed a petition in eminent domain to obtain property owned by Patel who lived on the property and operated a nine-unit motel. The contemplated taking encompassed five of the nine units. Prior to trial, DOT took the position that, if the jury's determination of the value of the whole property was equal to or less than the acquisition costs of the partial taking, DOT would seek a whole take under Section 337.27(2), F.S. (1997). At trial, the jury valued the whole taking greater than the partial, thus DOT's take would encompass only the five units. 

Patel's attorney was awarded attorney's fees as determined by the benefit achieved in accordance with Section 73.092(1)(a), F.S. Patel's attorney also sought an additional fee based on the amount of the nonmonetary benefit pursuant to Section 73.092(1)(b), F.S., which according to Patel's attorney included: saving the remainder of the parcel from DOT's attempt to take the entire parcel, saving the income generated by the remaining four units, and achieving an extension of possession of the property by Patel for two months beyond the time DOT sought to obtain it. At hearing on the attorney fee issue, Patel's attorney presented the testimony of an accountant to support the claim.

The trial court concluded that Patel was put at risk of a whole taking and therefore his attorneys were entitled to an additional fee for nonmonetary benefits. The trial court also awarded fees for the expert testimony of the accountant. DOT appealed portions of the nonmonetary benefits awarded and fees for the expert witness.

The Second District Court of Appeal held that saving the remainder of a property in an eminent domain proceeding by defeating a whole taking did not constitute a nonmonetary benefit for purposes of awarding additional attorneys fees. In addition, the Court held that the time spent litigating the fee amount in an eminent domain proceeding was not compensable since the condemnee had no interest in the amount of the fee, the benefit of which inures solely to its attorney.

FUTURE ANNEXATION MAP WAS AMENDMENT TO COMPREHENSIVE PLAN AND MUST BE SUPPORTED BY ADEQUATE DATA AND ANALYSIS

Martin County v. Department of Community Affairs, 2000 WL 1726948 (Fla. 4th DCA 2000)

The City of Stuart annexed property into the city and amended its comprehensive plan assigning land use designations to each of the newly annexed parcels, creating new land use categories, and revising the text of all plan elements as necessary and appropriate. As part of the amendments, the City incorporated certain map documents, including the Future Annexation Area Map (Map)

Martin County and 1000 Friends of Florida, Inc. challenged the plan amendments as not "in compliance" as defined in Section 163.3184(1)(b), F.S., for several reasons including that the Map, which identified approximately 8,000 additional acres which the City considered annexing through the year 2015, was not supported by adequate data and analysis as required by Section 163.3177(8), F.S. The Department of Community Affairs (Department) adopted the majority of the administrative law judge's order and found in part that the map was itself nothing more than data and analysis and therefore did not require additional data and analysis to support it. Martin County appealed.

The Fourth District Court of Appeal reversed the Department's findings and held the map represented an amendment to the plan since the ordinance adopting the map specifically characterized it as part of the City's comprehensive plan. Since no data or analysis was offered in support of the map or its boundaries, the Court held the amendment was not "in compliance" as asserted by Martin County.

LANDOWNER NOT ENTITLED TO TAKING COMPENSATION BASED ON UNCERTAINTY OF FUTURE GOVERNMENTAL PLANNING

Nutt v. Orange County, 769 So. 2d 453 (Fla. 5th DCA 2000)

Orange County took 2.5 acres from a 512 acre tract to improve a county intersection. The taking included a portion not to be utilized for the intersection improvement but planned for future correction of a sharp curve in one of the roads. Nutt, the landowner, claimed that because it was possible that the future route might severely impact his planned use of the property, a prospective purchaser would not pay top dollar for it and therefore he deserved compensation. The trial court denied Nutt's request for compensation for future impact. Nutt appealed.

The Fifth District Court of Appeals affirmed the trial court's ruling and held Nutt was not entitled to compensation based on his claim that uncertainty as to the County's future improvement of an adjoining road diminished the value of his property. The Court stated that everyone was at the mercy of future governmental planning, but this uncertainty does not necessarily rise to the level of a compensable taking. If future actions improperly impact his development, the Court went on to state, then at that time a claim for compensation should follow. 

LANDOWNERS ENTITLED TO DAMAGES FOR LOSS OF HIGHWAY ACCESS FROM DOT TAKE

Sayfie v. State of Florida, Department of Transportation, 2000 WL 1433946 (Fla. 2nd DCA 2000).

During the mid-1960s, numerous property owners donated property to the Department of Transportation's (DOT) predecessor agency for the construction of State Road 84, also known as Alligator Alley. The donated right-of-way was contingent upon the property owners retaining the right of access from their remaining property to any highway service road and this access right was specifically reserved in the deeds. Years later, the DOT began acquiring additional right-of-way to create Interstate 75. In furtherance of this effort, DOT took a 125-foot-wide strip of land on the south side of State Road 84. Two of the Appellants in the instant case had property condemned for an easement and counterclaimed for the loss of highway access as reserved in the original deeds. The trial court held that the case of DOT v. Edwards, 545 So. 2d 479 (Fla. 2nd DCA 1989), barred the Appellant's claims and therefore granted summary judgment in favor of DOT. The landowners appealed.

The Second District Court of Appeal reversed the trial court, holding Edwards distinguishable. The Court determined that Appellants lost access to the highway, and to the outer fifty feet by the taking of the additional 125 feet for construction of I-75. The property owners, whose easements were fenced off and placed behind a canal, were entitled to seek damages from DOT.

REALIGNMENT OF STATE ROAD IN FRONT OF RESTAURANT NOT COMPENSABLE TAKING OF ACCESS

State of Florida, Department of Transportation v. Kirkland, 2000 WL 1630132 (Fla. 1st DCA 2000)

The Kirkland's owned a restaurant on SR 77 adjacent to North Bay in Bay County. A new bridge was constructed across the bay and SR 77 was realigned in the vicinity of the restaurant. Prior to construction, the restaurant abutted SR 77 and had direct access to and from the parking lot to SR 77 for traffic traveling in either direction. After construction, SR 77 was relocated to the west and the old bridge was closed. The restaurant property still abutted and had direct access to old SR 77. Old SR 77, however, dead ends into the fishing pier south of the restaurant and intersects with new SR 77 approximately 1,000 feet north of the property. At that intersection, traffic traveling in either direction can access old SR 77. The trial court held that a compensable taking of access had occurred. DOT appealed.

The First District Court of Appeal reversed the trial court's ruling and held that the redirection of traffic did not amount to a deprivation of access. The Kirkland's restaurant still abutted and had direct access to the old state road, which after construction, intersected with the new state road approximately 1,000 feet north of the property. Since no taking had occurred, the Kirklands were not entitled to compensation.

AWARD OF ATTORNEY FEES IN EMINENT DOMAIN ACTION WILL NOT BE DISTURBED ABSENT CLEAR ABUSE OF DISCRETION

Amerada Hess Corporation v. State Department of Transportation, 2000 WL 1630150 (Fla. 4th DCA 2000)

Hess sought statutory attorney's fees for both monetary and nonmonetary benefits arising from the Department of Transportation's (DOT) acquisition of a temporary construction easement for bridge repairs and improvements. Hess contended that through the labor of its attorneys, it had successfully caused DOT to significantly alter its original construction plans, resulting in a substantial reduction in Hess's costs to cure a lesser impact on Hess's property, and an entitlement to greater compensation. DOT acknowledged the changes but denied they were a result of the attorney's efforts. The trial court entered an amended order awarding Hess statutory attorneys' fees and denying the request for attorney's fees associated with nonmonetary benefits. Hess appealed.

The Fourth District Court of Appeal affirmed the decision holding that a trial court's award of attorney's fees in an eminent domain action will not be disturbed absent a clear abuse of discretion. The Court determined that the changes in DOT's plans were not related to any efforts of Hess' attorneys but instead would have been made as a part of normal business practice. Therefore, the Court concluded, Hess was not entitled to additional attorney's fees based on nonmonetary benefits.

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. John Powell is an Associate with Hopping Green Sams & Smith in Tallahassee, Florida and received his B.S. and J.D. with honors from the University of Florida. He is a State Certified General Contractor and is licensed by the Florida State Board of Professional Engineers. Mr. Hunter and Mr. Powell practice primarily in the areas of environmental and land use litigation and solid and hazardous waste regulation.