First Quarter 2013: Recent Florida Environmental and Land Use Case Law

The Florida Bar's Environmental and Land Use Law Section has posted its column on the environmental and land use cases in Florida that you need to know about for the first quarter of 2013. This is the column that I formerly coauthored. There are a number of interesting cases this quarter:

• Galleon Bay Corp. v. Bd. of County Comm’rs, No. 3D11-1296, 2012 WL 6027768 (Fla. 3d DCA Dec. 5, 2012). As I discussed in an early post, "in determining whether a landowner’s investment-backed expectations are met in an inverse condemnation case, trial courts should not factor commonly owned but separately platted subdivisions in the analysis."

• Bd. of Supervisors v. Fla. Dep’t of Transp., 103 So. 3d 218 (Fla. 4th DCA 2012). I also covered this case previously. In an inverse condemnation proceeding, attorneys’ fees must be awarded based on all work relating to the suit. This includes work performed before the date a suit is filed. 

• Bischoff v. Walker, No. 5D11-2194, 2012 WL 6213271 (Fla. 5th DCA Dec. 14, 2012). "Where a deed references a property boundary defined by a natural monument, such as a canal or lake, Florida law follows the general rule that a rebuttable presumption exists in favor of finding the boundary at the centerline of the monument, absent evidence of contrary intent."

• Jass Properties, LLC v. N. Lauderdale, 101 So. 3d 400 (Fla. 4th DCA 2012). "Florida law does not expressly prohibit a municipality from declining to contract with tenants for utility services and instead restricting service agreements to property owners."

• Clark v. Bluewater Key RV Ownership Park, No. 3D11-884, 2012 WL 6602657 (Fla. 3d DCA Dec. 19, 2012). "An association of property owners at a recreational vehicle park is not subject to regulations of homeowners’ associations under chapter 720, Florida Statutes, where the park prohibits any permanent or semi-permanent structures intended or used as permanent living quarters."

• Florida Attorney General Opinion 12-32 (2012). "A proposed county ordinance that would condition acceptance of an application for rezoning on the consent of a specified number of property owners may be an illegal delegation of legislative power." 

My archives have about two years' worth of analysis and these summaries on the new environmental and land use cases, for those who are interested.

Florida's 4th DCA Explains that Attorney's Fees and Costs for Work Leading up to Successful Takings Suit is Recoverable

This is a simple case, but a good one to be aware of. 

In Board of Supervisors of St. John's Water Control District v. Florida Department of Transportation,  - So. 3d -, 2012 WL 5933012 (Fla. 4th DCA Nov. 28, 2012), the parties agreed that the District was entitled to attorney's fees and costs because it was successful in an inverse condemnation lawsuit. The circuit court ruled, however, that the District was not entitled to its fees and costs in a prior lawsuit, in which it was determined that the District actually owned the property in question. The appellate court reversed, explaining: 

Under Florida law, a property owner awarded fees under the lodestar method is entitled to its reasonable attorneys' fees for all work relating to a condemnation suit, including work performed before the date suit is actually filed. See Volusia Cnty. v. Pickens, 435 So. 2d 247, 248 (Fla. 5th DCA 1983) (an inverse condemnation plaintiff was "entitled to recover a reasonable amount for all costs and attorney's fees reasonably and necessarily expended in connection with the investigation, research, preparation and presentation of the case" despite the defendant's argument that the plaintiff's entitlement to attorney's fees was limited to a certain date range); State Dep't of Trans. v. Grice Elecs., Inc., 356 So. 2d 7, 7 (Fla. 1st DCA 1977) (the trial court did not err when it awarded "compensation to appellee's attorneys for work performed before suit was filed but after condemnation was imminent").

That is, it takes work to get to the point of filing a taking claim, and a prevailing landowner should be compensated for that. Makes sense to me.