Recent Florida Environmental and Land Use Case Law

The Florida Bar's Environmental and Land Use Law Section has posted its columns on the environmental and land use cases in Florida that you need to know about for the third quarter of 2013, as well as the fourth quarter of 2013. Here is what we've got this quarter:

• Hillcrest Prop., LLP v. Pasco County, 24 Fla. L. Weekly, Fed. D 33 (M.D. Fla. 2013), finding that a local government may not require property owners to give up property in exchange for development permits, where the exaction is unconnected to the development's impact. Read more from on my friend Robert Thomas's blog. Disclaimer: my firm represents the plaintiff property owner in this case, and we submitted an amicus brief to the U.S. Supreme Court in the Koontz case on its behalf.

• Town of Ponce Inlet v. Pacetta, LLC, No. 5D12-1982, 2013 WL 3357520 (Fla. 5th DCA July 5, 2013), reversing the trial court decision that I've written extensively about, and holding that a Bert Harris Act claim for the burdening of vested rights cannot be premised on local government assurances that it will amend its comprehensive plan.

• Collins v. Monroe County, No. 3D11-2944, 2013 WL 3455608 (Fla. 3d DCA July 10, 2013), determining that a special master's administrative recommendation that a local government purchase properties because they may be a taking is not enough to prove the taking, where the landowners could not prove they had explored the properties' development potential.

• Seminole Tribe of Fla. v. Hendry County, 114 So.3d 1073 (Fla. 2nd DCA 2013), holding that a local government's land use procedures were not preempted by the Power Plant Siting Act when a property owner applied for a local government land use permit before activating Power Plant Siting Act review.

• Maronda Homes v. Lakeview Reserve Homeowners Ass’n, No. SC10-2292, No. SC10-2336, WL 3466814 (Fla. July 11, 2013), deciding that the implied warranties of fitness and merchantability apply to certain common areas, and a Florida law limiting these warranties cannot be applied retroactively.

• Angelo’s Aggregate Materials v. Pasco County, 118 So.3d 971 (Fla. 2d DCA 2013), holding that a local government may not require an administrative vested rights process to be exhausted by a landowner before requesting that a court issue a declaratory judgment.

• Manley v. City of Tallahassee, 2013 WL 4007650 (11th Cir. 2013), determining that a local government does not deprive a landowner of his property in violation of due process where it approves a site plan of a neighbor without allowing the landowner to be heard, even if the landowner has an access agreement concerning the neighbor's property.

• Foley v. Orange County, 2013 WL 4110414 (M.D. Fla. 2013), finding that a local government may not enact or enforce land use regulations in conflict with general laws and regulations concerning the care and keeping of exotic animals.

• U.S. Sugar Corp. v. 1,000 Friends of Fla., 2013 WL 4017136 (Fla. 4th DCA 2013), holding that comprehensive plan consistency is determined by analyzing the face of a development order, and not by what the developer intends to do under the development order.

• CBS Outdoor, Inc. v. Fla. Dep’t of Transp., 2013 WL 5744443 (Fla. 1st DCA 2013), determining that where Florida law allows the owners of signs and billboards to engage in an administrative process to receive compensation for blocked view, the billboards must conform to local, state, and federal regulations for their owners to use this process.

If you're so inclined, over two years' worth of these cases and these summaries on new environmental and land use cases in Florida are in my archives.

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.

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.

Third Quarter 2011: Recent Florida Environmental and Land Use Case Law

This post continues my series of case law updates for those interested in recent environmental and land use cases in Florida. Once again, these cases come from the case law update that I coauthor in the newsletter of the Environmental and Land Use Law Section of the Florida Bar. Below are the cases we reviewed this quarter.

• Walthour v. Malibu Lodging Investments, LLC, 2011 WL 2135594 (Fla. 3d DCA June 1, 2011), a city ordinance with no variance provision is constitutional as long as it does not create a “unique hardship” for the landowner.
• Wilson v. Palm Beach Cnty., 62 So. 3d (Fla. 4th DCA June 15, 2011), holding that the Right to Farm Act does not prohibit the enforcement of local government ordinances regulating farming activities adopted prior to June 2000 (although this holding was likely reversed by Ch. 2011-007, Laws of Fla.)
• Pembroke Ctr., LLC v. Dep’t of Transp., 2011 WL 2555569 (Fla. 4th DCA June 29, 2011), not allowing an inverse condemnation claim where the government is merely planning for future events and access is not lost.
• Heritage 5, LLC v. Estrada, 2011 WL 2848664 (Fla. 4th DCA July 20, 2011), applying the reasonable use rule to man-made drainage schemes that further natural flows.
• Highwoods DLF EOLA, LLC v. Condo Dev., LLC, 51 So. 3d 570 (Fla. 5th DCA 2010), establishing in potential conflict with the 2d DCA that quasi-judicial proceeding participants cannot be barred from subsequent certiorari proceedings. 

You can find more details in this quarter's newsletter. Please email me as you become aware of cases we should review.

Resource for Recent Florida Environmental and Land Use Case Law

For those who are interested in recent environmental and land use case law in Florida, the Environmental and Land Use Section of the Florida Bar publishes its newsletter, the Section Reporter, online. As of the June 2011 edition, I am now coauthoring the Florida Case Law Update column with my colleague at Hopping Green & Sams, Gary K. Hunter, Jr.

Each quarter, we review and summarize the most important cases in the Florida appellate courts dealing with environmental, land use, growth management, property rights, and natural resources law. This quarter, we review the following cases:

• Miami-Dade County v. DCA, 54 So. 3d 633 (Fla. 1st DCA Feb. 28, 2011), explaining the judicial review powers of the Administration Commission, and judicial review of the Commission itself.
• Hasselback v. DEP, 54 So. 3d 637 (Fla. 1st DCA 2011), regarding proper legal notice of permits to be issued by the Department of Environmental Protection.
• City Nat’l Bank of Fla. v. Tampa, 2011 WL 1295874 (Fla. 2d DCA 2011), allowing state court review of federal equal protection claims under 42 U.S.C. section 1983.
• Graves v. Pompano Beach, 2011 WL 1376617 (Fla. 4th DCA 2011), establishing that plat approval does not constitute a development order under section 163.3215, Florida Statutes.
• Allen v. Key West, 2011 WL 1485992 (Fla. 3d DCA 2011), declaring a nonconforming land use where the previous owner relied on the city's actions and maintained all required licenses.
• Atwater v.  Weston, 2011 WL 1634234 (Fla. 1st DCA 2011), which I previously reviewed, dismissing a challenge to the 2009 growth management bill, SB 360.

As you come across relevant cases, please forward them to me.

Fourth Quarter 2012: 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 fourth quarter of 2012. This is the column that I formerly coauthored. Here are the summaries:

• Town of Longboat Key v. Islandside Property Owners Coalition, LLC, 94 So.3d, 1037 (Fla. 4th DCA 2012). As I discussed in detail previously, In certiorari review, a circuit court is not bound by a local commission’s longstanding interpretation of a local code if that interpretation is unreasonable or erroneous. 
• 19650 NE 18th Ave LLC. v. Presidential Estates Homeowners Ass’n, Inc., - So.3d -, 2012 WL 4448792 (Fla. 3rd DCA 2012). Where a deed of sale violated a county covenant requiring the deed to specify the number of units a buyer may build on the property, the remaining development rights associated with the property were not forfeited because such a condition was not included in the contract. 
• Garcia v. Andonie, - S. Ct. -, 2012 WL 4666458 (Fla. 2012). The homestead exemption statute’s provision requiring that a property owner reside on the property to be entitled to a homestead property tax exemption violated Florida’s constitutional provision governing the homestead exemption.
• Fla. Dept. of Agriculture and Consumer Services v. Mendez, - So.3d -, 2012 WL 3023214 (Fla. 4th DCA 2012). The statute permitting issuance of writ of execution against Florida departments for judgment in eminent domain actions does not permit issuances of writ of execution against Florida departments in inverse condemnation actions. Further, a constitutional challenge to section 11.066, Florida Statutes, is not ripe for adjudication prior to appropriation proceedings before the Legislature.

As always, if you're interested in previous case law updates, take a look at my past posts for previous cases I've summarized about Florida environmental and land use law.

Fourth Quarter 2011: Recent Florida Environmental and Land Use Case Law

Continuing my Florida environmental and land use case law updates, I summarized the cases below with my co-author in the latest newsletter of the Florida Bar's Environmental and Land Use Law Section.

• Miami-Dade Cnty. v. Torbert, 
• 36 Fla. L. Weekly D1674a 
• (Fla. 3d 
• DCA Aug. 3, 2011), holding that plat restrictions must be incorporated and reference into a deed to be valid.
• St. Johns River Water Mgmt. Dist. v. Molica, 2011 WL 3627412 (Fla. 5th DCA Aug. 19, 2011), declaring that Water Management Districts have the power to create an administrative rule requiring environmental resource permits (ERP) for dredging and filling of surface water and wetlands.
• Bush v. Mexico Beach, 2011 WL 4345169 (Fla. 1st DCA Aug. 31, 2011), confirming previous case law requiring comprehensive plan consistency challenges after a local government hearing to be brought in de novo proceedings in circuit court, but allowing challenges to the hearing based on other reasons to be brought as certiorari proceedings.
• Mickel v. Norton, 2011 WL 4415353 (Fla. 2d DCA Sept. 23, 2011), holding that property owners do not have a riparian right to an unobstructed view of the water body unless the property directly borders it.
• 1000 Friends of Fla., Inc. v. Palm Beach Cnty., 2011 WL 4577746 (Fla. 4th DCA Oct. 5, 2011), stating that comprehensive plans are to be interpreted using the same rules of construction as statutes.
• West Palm Beach v. Roberts, 2011 WL 4949795 (Fla. 4th DCA Oct. 19, 2011), affirming a decision holding a city liable for inverse condemnation where it demolished a structure without giving the owner adequate notice.
• Pembroke Ctr., LLC v. Fla. Dep’t of Transp., 64 So. 3d 737 (Fla. 4th DCA 2011), denying an inverse condemnation claim where there were mere "planning activities" but no loss of activities.

You can detailed description in this quarter's newsletter. Please email me new cases we should review.

Celebrating Economic Progress on Earth Day

Earth Day presents a good opportunity to launch this blog. I'm a conservationist, but I doubt that most greens would invite me to their supper clubs. My family cuts timber for a living, and after law school, I plan to work to protect property rights. In fact, I decided to become a lawyer when my hometown government tried to do away with property rights on my family's land.

Rather, Earth Day hints at what is to become a theme of this blog. It provides a convenient vehicle to highlight the contrast between what Bastiat called the seen and the unseen. Pollution is easy to see, as are factories and Congressional posturing about the environment. What of the unseen? Environmental progress follows economic progress. In reality, economic progress is the key to environmental stewardship.

On this Earth Day, news editorials are commenting on the unfortunate timing of an oil rig explosion. Yet that's no reason to celebrate Earth Day by turning off our lights. That's not progress. Neither is it a reason to reduce our consumption of oil. During the industrial revolution, we were much less productive, and polluted much more. Now, there is evidence that increased incomes and free markets yield better environmental outcomes.

Even our president misunderstands this crucial point. President Obama, in his Earth Day speech, said "But just as we've led the global economy in developing new sources of energy, we've also led in consuming energy. While we make up less than 5 percent of the world's population, we produce roughly a quarter of the world's demand for oil." He neglected to mention, however, that in 2009, according to the International Monetary Fund the United States also produced roughly a quarter of the world's economic output.

The demand for fuel is not the enemy. Rising economic fortunes are not the enemy. Increasing economic output is the key to saving the planet. Good economic policy does not hinder the goals of the environmentalist or the conservationist. In fact, it is the only effective tool they have at their disposal.

As we will see, that will be an important theme of this blog.

First Quarter 2014: 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 2014. Here's what we've got:

• Beyer v. City of Marathon, 38 Fla. L. Weekly D2286 (Fla. 3d DCA 2013), rejecting the local government's claims of statutes of limitation and laches where it delayed the processing of an application.
• Archstone Palmetto Park, LLC v. Kennedy, 2014 WL 305086 (Fla. 4th DCA 2014), clarifying the limitations for local government public referenda for development orders.
• Fla. Dep’t of Agriculture & Consumer Servs. v. Mendez, 126 So. 3d 367 (Fla. 4th DCA 2013), regarding standards to apply to takings under the Citrus Canker Eradication Program.
• Detournay v. City of Coral Gables, 38 Fla. L Weekly D2552 (Fla. 3d DCA 2013), holding that local government code violation actions are executive acts that cannot be supervised by the courts in actions by third parties attempting to force the government to pursue the violations.
• Ripps v. City of Coconut Creek, 124 So. 3d 1007 (Fla. 4th DCA 2013), holding that a DRI substantial deviation threshold regarding hotel rooms was moot under newly amended laws.
• Grove at Harbor Hills Homeowners v. Harbor Hills Dev., L.P., 38 Fla. L. Weekly D2627 (Fla. 5th DCA 2013), emphasizing that "maintenance" and "control" have different meanings in real estate use agreements.
• Clearwater Housing Authority v. Future Capital Holding Corp., No. 2D12-5515 (Fla. 2d DCA 2013), holding that the statute of repose applicable to an action founded on the design, planning, or construction of an improvement to real property can be triggered on an event other than an improvement to real property.

Past summaries are available in my archives.

Second 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 second quarter of 2012.

• North Port Road and Drainage District v. West Villages Improvement District, 82 So. 3d 69 (Fla. 2012), holding that a dependent special district could not make a valid non-ad valorem special assessment on real property that was owned by an independent special district. 
• Nader v. Florida Department of Highway Safety and Motor Vehicles, - So. 3d -, 37 Fla. L. Weekly S130, 2012 WL 572985 (Fla. Feb. 23, 2012), clarifying that on second-tier certiorari review before a District Court of Appeal, the court's standard of review is the same whether the court  is reviewing a circuit court appeal from county court or a first-tier certiorari review before a circuit court. Further, the District Court of Appeal may grant second-tier certiorari relief to quash a circuit court decision that obeyed the controlling precedent of another DCA. 
• Donovan v. Okaloosa County, - So. 3d -, 37 Fla. L. Weekly S6, 2012 WL 16587 (Fla. Mar. 5, 2012), validating beach renourishment bonds because beach renourishment is a public purpose, and confirming that bonds may be issued before a project has obtained all necessary permits. 
• Washington County v. Northwest Florida Water Management District, - So. 3d -, 37 Fla. Law Weekly D658, 2012 WL 879284 (Fla. 1st DCA Mar. 16, 2012), explaining that section 373.709, Florida Statutes, allows administrative challenges to water supply plans. In this particular case, however, the appellants lacked standing to challenge the plan.
• North Palm Beach v. S&H Foster’s, Inc., 80 So. 3d 433 (Fla. 4th DCA), presenting a case where a tenant could not be grandfathered into zoning ordinance because the landowner had voluntarily annexed the subject property into the municipality. That is, once a property is annexed, it must comply with the ordinances of its new municipality. 
• Pruitt v. Sands, - So. 3d -, 2012 WL 1317228 (Fla. 4th DCA Apr. 18, 2012), holding that it is not appropriate for a court to defer to a local government’s interpretation of its comprehensive plan. This is different from a situation  where a private party brings suit to enforce an ordinance, when a court must defer to the local government’s interpretation of its land development code. 

Take a look at past posts for previous cases I've summarized about Florida environmental and land use law. As usual, please get in touch with me about recent cases that others need to know about.

Third Quarter 2012: 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 third quarter of 2012. It's a relatively small bunch this time:

• Southern Union Co. v. United States, - S. Ct. -, 2012 WL 2344465 (2012), determined that the Sixth Amendment protection requiring that juries determine any fact, other than a prior conviction, that increases a criminal defendant’s maximum potential sentence applies to the sentencing of criminal environmental fines. The U.S. Supreme Court overturned the $18 million penalty assessed against Southern Union and sent the case back to the appeals court for further consideration.
• FT Investments, Inc. v. Florida Department of Environmental Protection, - So.3d -, 2012 WL 2138110 (Fla. 1st DCa 2012), holding that a third party defense to strict liability for petroleum contamination only applies if the purchaser of the contaminated property had no knowledge of the contamination after a reasonable inquiry. The takeaway here is that liability under the statute is strict - do not assume that just because you did not cause the contamination you cannot be held liable for it.
• Department of Transportation v. Florida Gas Transmission Co., - So.3d -, 2012 WL 2014755 (Fla. 1st DCA 2012), discussing issues related to contractual interpretation of a gas pipeline easement.
• Turkali v. Safety Harbor, Case no. 2D11-3649 (Fla. 2d DCA 2012), explaining, as I have discussed previously, that a "valid, bona fide appraisal" under the Bert J. Harris Private Property Protection Act must provide information about the value of the individual property at issue. As I discussed before, it's important to make sure that you follow the statute precisely to preserve your statutory rights.

As always, if you're interested in previous case law updates, take a look at my past posts for previous cases I've summarized about Florida environmental and land use law.

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.