| Material Information
||Whether SFWMD, By Issuing Permits Required For Implementation of The Interim Action Program, Would Become Liable For Any "Taking" That Might Result
||Frank E. Maloney, Attorney At Law
||North America -- United States of America -- Florida
||Richard Hamann's Collection - Whether SFWMD, By Issuing Permits Required For Implementation of The Interim Action Program, Would Become Liable For Any "Taking" That Might Result
||Box 12, Folder 5 ( Legal Ramifications of Implementation of the Interim Action Program in Golden Gate Estates, Collier County, Florida - 1979 ), Item 11
||Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
X. WHETHER THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT, BY ISSUING
PERMITS ALLOWING THE IMPLEMENTATION OF THE INTERIM ACTION PROGRAM,
COULD BE HELD LIABLE FOR ANY "TAKINGS" THAT MIGHT RESULT.
No cases have been found in which a Florida court addressed this
issue. The United States Supreme Court, however, decided a similar case
in Griggs v. Allegheny County, 369 U.S. 85, 82 S. Ct. 531, 7 L.Ed.2d 585
(1962). In Griggs, the owner and inhabitant of a residence located at
the end of a new airport's runway sought compensation for an alleged
taking of his property resulting from frequent overflights which he
alleged had made the house unlivable. The bottom of the glide path was
11.36 feet above the chimney of the house. Outgoing aircraft regularly
passed from 30 feet to 300 feet over the residence and incoming aircraft
passed within 53 feet to 153 feet. Id. at 532. One question decided by
the court was which party should be liable for the taking, the airlines,
the operator of the airport, or the Civil Aeronautics Administration(C.A.A.).
The airlines operated the aircraft which actually caused the damage. The
county built and operated the airport adjacent to the house. The C.A.A.
largely funded construction of the airport and required that the facility
be operated in compliance with its rules and regulations. All plans for
the airport were approved by the C.A.A. and the standards for approaches
as well as the flights themselves were also in compliance with the C.A.A.
The Supreme Court held the operator of the airport liable, and not
the airlines or the C.A.A..
It is argued that though there was a "taking" someone
other than respondent was the taker the airlines or
the C.A.A. acting as an authorized representative of
the United States. We think, however, that respondent,
which was the promoter, owner, and lessor of the airport,
was in these circumstances the one who took the air
easement in the constitutional sense. Respondent
decided, subject to the approval of the C.A.A., where
the airport would be built, what runways it would
need, their direction and length, and what land and
navigation easements would be needed. The Federal
Government takes nothing; it is the local authority
which decides to build an airport vel non, and where
it is to be located. We see no difference between
its responsibility for the air easements necessary for
operation of the airport and its responsibility for the
land on which the runways were built. Id. at 533-34.
The facts at issue in the implementation of the Golden Gate Estates
Interim Action Plan are analogous to those in Griggs. If Collier County
decides that it is necessary to build weirs in the canals of G.G.E.,
where they are to be built, and how much land is necessary, its position
would be the same as that of Allegheny County it would be the respon-
sible party. If the South Florida Water Management District permits the
project, then it would be in the same position as was the C.A.A. in
Griggs and similarly should not be liable if the action results in a taking.
Although no Florida court has addressed the issue directly, Griggs
has been followed by the First District Court of Appeal in the slightly
dissimilar context of Corbett v. Eastern Airlines, 166 So. 2d 196 (Fla.
Ist D.C.A. 1964). The plaintiff in Corbett owned a restaurant adjacent
to a municipal airport. He brought an action for inverse condemnation,
charging that both the airlines and the operator of the airport were
responsible for taking an air navigation easement. In affirming a dismissal
of the complaint as to the airlines, the court adopted the language of
Griggs, quoted above, as its rationale. Id. at 204-05. The court thus
accepted the principle that it is the builder and operator of a facility,
and not other parties, that is responsible for takings which result from
the operation of it.