Second 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 second quarter of 2013. This is the column that I formerly coauthored. Here is what we've got this quarter:

• Clipper Bay Invs., LLC v. Dep’t of Transp., No. 1D11-5496, 2013 WL 425882 (Fla. 1st DCA Feb. 5, 2013). "The Marketable Record Title Act’s exception for easements and right-of-ways is applicable to land held as a fee estate for the purpose of a right-of-way, so long as competent, substantial evidence establishes the land is held for such a purpose."
• Wendler v. St. Augustine, 108 So. 3d 1141 (Fla. 5th DCA 2013). As I pointed out previously, the statute of limitations for filing a Bert Harris Act claim in court is within 4 years of the government’s act. Section 70.001(11), it held, is a pre-suit condition merely requiring that a claim be presented to a local government within 1 year of its act.
• Alachua Land Investors, LLC v. Gainesville, 107 So. 3d 1154 (Fla. 1st DCA 2013). As I discussed, for an inverse condemnation claim to be ripe, the plaintiff should prove (1) the regulation denies substantially all economically beneficial or productive use of the land; (2) alternative uses were applied for and conclusively denied by the regulatory body; and (3) at least one meaningful application has been filed under the existing regulations.
• Nieto v. Mobile Gardens Ass’n of Englewood, Inc., No. 2D11-4958, 2013 WL 1489377 (Fla. 2d DCA Apr. 12, 2013). "A homeowners association lacks standing to enforce restrictive covenants unless it is the direct assignee of the developer’s right to enforce deed restrictions or it is a successor in interest of the developer."
• Martin Cnty. Conservation Alliance v. Martin Cnty., No. SC11-2455, 2013 WL 1908644 (Fla. May 9, 2013). As I've discussed previously, the Florida Supreme Court dismissed review of a case from the 1st DCA sanctioning environmental organizations for advancing legal positions unsupported by material law or fact.

For those interested, there are about two years' worth of analysis and these summaries on new environmental and land use cases in Florida in my archives.

A Cautionary Tale for Environmental and Land Use Practitioners: Florida Supreme Court Declines to Review Environmental Organization Sanctions

Today, the Florida Supreme Court decided not to a review a 1st DCA decision sanctioning environmental organizations. Martin Cnty. Conservation Alliance v. Martin County, - So. 3d. -, 2013 WL 1908644, No. SC11-2455 (May 9, 2013), dismissing as improv. granted Martin Cnty. Conservation Alliance v. Martin Cnty., 73 So. 3d 856 (Fla. 1st DCA 2011) (original opinion revised on motion for rehearing). The Court originally accepted jurisdiction of the case on the grounds that the 1st DCA opinion expressly and directly contradicted with a decision by another district court of appeal. After further review, the Court determined that jurisdiction was improvidently granted and declined review of the case.

Keep in mind that, under Article V, Section 3 of Florida's Constitution, the Florida Supreme Court's jurisdiction is fairly limited. It has much stricter limitations on the cases it can hear than does the United States Supreme Court. In Florida, our court system has been set up so that the five district courts of appeal are the courts of last resort except in certain circumstances. This was not one of those circumstances.

That means the 1st DCA's opinion from 2011 is now final. As a reminder, I said previously that this case would be important to watch for anyone interested in environmental, land use, or administrative law in Florida. In a previous post, I explained:

[The Alliance] challenged two ordinances amending the Martin County comprehensive plan .... The Administrative Law Judge (“ALJ”) concluded the amendments would not cause environmental harm, and the Department of Community Affairs affirmed via issuance of an “in compliance” final order. The appellants appealed, but the First DCA dismissed the appeal for lack of standing, and it ordered appellants to show cause why sanctions should not be imposed for filing an appeal where appellate standing was lacking. The court, on its own initiative, has since withdrawn that order and replaced it with one holding the appeal to be in violation of section 57.105(1), Florida Statutes, and imposing sanctions .... Consequently, the First DCA imposed sanctions, stating that by advancing legal positions unsupported by material facts or law, appellants were statutorily subject to section 57.105 sanctions.

For a much more in-depth analysis, see my review of the 1st DCA opinion in the April 2012 edition of the Florida Bar's Environmental & Land Use Law Section Reporter.

This case serves as a cautionary tale to environmental and land use practitioners--and their clients--that advocacy in support of a position can sometimes go too far. That's not to denigrate the advocates in this case. There were good lawyers on both sides of this issue. But it should certainly go into the calculus of thinking about cases now. Per the 1st DCA's order, the sanctions will now be borne in equal part by the environmental organizations and their attorneys.

EDIT 5/10/2013: Bruce Ritchie has an article up at the Florida Current about the decision.

EDIT 5/29/2013: I've made some slight adjustments in the article to indicate that the Florida Supreme Court actually dismissed the case as improvidently granted, meaning that it accepted the case for review, and after considering it further, declined to review it.

Florida Supreme Court Grants Review of Decision Sanctioning Environmental Organizations

The Florida Supreme Court has granted review of a 1st DCA decision sanctioning environmental organizations. See Martin Cnty. Conservation Alliance v. Martin Cnty., 73 So. 3d 856 (Fla. 1st DCA 2011) (original opinion revised on motion for rehearing). This case will be one to watch for anyone interested in environmental, land use, or administrative law in Florida. Any decision will have implications for the costs of doing business in Florida.

I recently summarized the Martin County case in the Florida Bar's Environmental & Land Use Section Reporter, explaining how the main issue was whether the Martin County Conservation Alliance should have asked an appellate court to review the administrative decision below:

[The Alliance] challenged two ordinances amending the Martin County comprehensive plan .... The Administrative Law Judge (“ALJ”) concluded the amendments would not cause environmental harm, and the Department of Community Affairs affirmed via issuance of an “in compliance” final order. The appellants appealed, but the First DCA dismissed the appeal for lack of standing, and it ordered appellants to show cause why sanctions should not be imposed for filing an appeal where appellate standing was lacking. The court, on its own initiative, has since withdrawn that order and replaced it with one holding the appeal to be in violation of section 57.105(1), Florida Statutes, and imposing sanctions .... Consequently, the First DCA imposed sanctions, stating that by advancing legal positions unsupported by material facts or law, appellants were statutorily subject to section 57.105 sanctions.

The arguments the parties will make are foreshadowed in their jurisdictional briefs. The Alliance argued that environmental advocacy will be chilled:

The Decision, over a strong dissent, and with 6 judges voting to rehear the case en banc, sanctioned non-profit organizations for appealing an agency's rulings on the proper legal interpretation of comprehensive plan changes. The Decision is of exceptional importance, as it unduly limits the ability to seek appellate redress of a wide variety of administrative agency and other [stet]. The purpose of deterring baseless litigation must be carefully counter-balanced against protecting all citizens' rights of access to the courts. See Read v. Taylor, 832 So. 2d 219, 222 (Fla. 4th DCA 2002). Here, the Dissent expressed a deep concern over the Decision's chilling effect on good faith efforts to seek appellate redress by parties without deep pockets, and the potential denial of the Florida Constitution's right of access to courts. Decision at 37 -38. (Van Nortwick, J. Dissenting).The Decision may ensure that no citizen will ever again initiate legal remedies that the Legislature has established regarding environmental and land use matters. Such cases often present close issues, as the nuances between the majority and dissenting decisions in this case demonstrate. Few, if any, parties with legitimate claims would dare embark on such an action if the result of not prevailing on the merits is a punitive assessment of attorney's fees. Petitioners urge the Court to accept jurisdiction to reconcile the identified conflicts.

Martin County, however, argued that the decision was well-reasoned and unexceptional:

The district court’s decision imposing sanctions on Petitioners and their attorney does not “expressly and directly” conflict with a prior decision of this Court or another district court “on the same question of law.” Neither of the two “species” of such “holding conflict” jurisdiction is present here .... The district court’s decision simply involves a sound exercise of its discretion, imposing sanctions under section 57.105(1), Florida Statutes, because Petitioners and their attorney knew (or should have known) that the record below clearly showed they had not presented any evidence that their own interests would be “adversely affected” by the challenged amendments to the Martin County comprehensive plan, and thus Petitioners lacked standing to appeal the state agency’s final order approving adoption of the amendments. See 120.68, Fla. Stat.

The online docket reports that the Court accepted jurisdiction and dispensed with oral argument. The Alliance must serve its brief on the merits by June 5, 2012. Afterwards, the respondents get 20 days to respond, and then the Alliance gets 20 days to reply. This means that the case will be fully briefed by mid-July, assuming no extensions are granted. A number of organizations are intending to write amicus curiae briefs, including Disability Rights Florida, Inc., Florida Legal Services, Southern Legal Counsel, Inc., Florida Wildlife Federation, and the Florida Chapter of the American Planning Association.

Stay tuned. I'll be commenting once the briefs are in.

First Quarter 2012: Recent Florida Environmental and Land Use Case Law

The Florida Bar's Environmental and Land Use Law Section has posted my column on the environmental and land use cases in Florida that you need to know about in the first quarter of 2012.

• Graves v. Pompano Beach, 74 So. 3d 595 (Fla. 4th DCA 2011), establishing that plat approval does constitute a development order under section 163.3215, Florida Statutes, reversing the court's previous opinion upon rehearing.
• Martin County Conservation Alliance v. Martin County, 73 So. 3d 856 (Fla. 1st DCA 2011), confirming on rehearing sanctions imposed on environmental organizations under section 57.105, Florida Statues, as they were held to have pursued appellate review without any foundation in law or fact.
• St. Johns River Water Mgmt District v. Koontz, 2011 WL 5218306 (Fla. Nov. 2, 2011), declining to recognize an exaction under U.S. Supreme Court precedents Nollan and Dolan because the theory is applicable only to exactions involving real property.
• Venice v. Gwynn, 2011 WL 6934531 (Fla. 2d DCA Dec. 30, 2011), stating that ordinances that do not deprive all or substantially all of a property’s value fail the Penn Central test and thus do not violate the Constitution as uncompensated taking of property.

Take a look at past posts for previous cases I've summarized. As usual, please email me with recent cases that others need to know about.