XI. THE APPLICATION AND LEGAL SIGNIFICANCE OF CHAPTER 78-85, LAWS OF FLORIDA
Chapter 78-85, entitled "An Act relating to private property rights ..."
and sometimes referred to as the 1978 Taking Act, became law on May 30, 1978.
It has been codified as sections 161.212, 253.763, 373.617, 380.085, and
403.90 of the Florida Statutes (1978 Supp.). It was enacted to provide
private property owners who are "substantially affected" by a regulatory
agency's final action in respect to a permit an alternative mechansim for
seeking review and relief. The Act is so new that no court decisions and
only a few legal reports to date have addressed the impact of the legisla-
tion. For the reasons outlined below, Chapter 78-85 would appear to have
a quite limited potential for application to the situation in Collier County.
Robert W. Rhodes, an attorney and member of the Governor's Property
Rights Study Commission which had much to do with the eventual form of
Chapter 78-85, believes that the act has very limited application.
Key operational definitions of "agency" and "permit"
limit the court action to state agency decisions in-
volving Chapters 161, 253, 373, 380 and 403, Fla.
Stat. Hence, The Department of Natural Resources
decisions regarding coastal construction control lines,
Trustees of the Internal Improvement Trust Fund de-
cisions regarding dredge and fill permit appeals and
sale and lease of state owned lands, Land and Water
Adjudicatory Commission and regional water management
district decisions regarding water permits, Land and
Water Adjudicatory decisions regarding developments
of regional impact and areas of critical state concern,
and Environmental Regulation Commission decisions re-
garding pollution control permits are subject to the
circuit court action established by the act. Rhodes,
Compensating Police Power Takings: Chapter 78-85, Laws
of Florida, 52 Fla. Bar. J. 741, 743 (1978).
.r. Rhodes evidently did not think that county permits provided for in
certain sections of the named chapters of the Florida Statutes could serve
Sa basis for application of Chapter 78-85. At least, he did not discuss
that possibility in his recent article about the new act.
Although it is not clear why county permits would not be subject to
the provisions of the new act, the resolution of this point does not appear
to be relevant to the legal implications of Collier County's Interim Action
Program. The only permits that the County could possibly issue based on
provisions found in Chapters 161, 253, 373, 380 and 403 of the Florida
Statutes would be in the following areas:
1) Ch. 161: Physical work or activity along a coastal
county's shoreline for shore protection if the county
has a beach and shore preservation program approved
by the Department of Natural Resources. Such acti-
vities include the construction of groins, jetties
and seawalls. 161.35.
2) Ch. 253: The construction of islands or the extension
or addition to islands or lands located in the unin-
corporated area of a county bordering or in the navi-
gable waters of the state. Such permits require the
approval of the Trustees of the Internal Improvement
Fund which also retains authority to revoke the
3) The repair, replacement, or reconstruction of coastal
structures, such as seawalls and bulkheads, by riparian
upland owners of lands bordering or in the navigable
waters of the state and already installed on the
riparian's upland. This permit also requires prior
approval by the Trustees. 253.124(8).
4) Ch. 380: Permit problems associated with Chapter 380
could only arise from the area's designation as an
"area of critical state concern" (380.05 et. seq.)
or a "development of regional impact" 380.06 et. seq.
5) Ch. 403: Local pollution control permits, if the county
has a program which complies with Chapter 403 and has
been approved by the Department of Environmental Regu-
I', nation, and the authority to issue permits has been
officially delegated to the county. 403.182.
is small number of situations which can involve county government action
permits follows from the restricted definition of "permit" in Chapter
485. The named chapters represent comprehensive environmental enactments
- I -"CZ~PP -
which give primary operational authority to state-level agencies, such
as the Department of Environmental Regulation under Chapter 403.
From the preceding discussion, it seems unlikely that G.A.C. or
any other private landowner within Golden Gate Estates could make use
of Chapter 78-85 to seek relief from alleged injury arising from Collier
County's action on any county permit. It is possible, however, that
Chapter 78-85 could be invoked by G.A.C. or another private landowner
in regard to a state-level permit sought by Collier County in the imple-
mentation of its Interim Action Program.
As discussed elsewhere in this report, the Interim Action Program's
implementation will likely require permits from the South Florida Water
Management District pursuant to Chapter 373, Part IV, and the Department
of Environmental Regulation pursuant to Chapter 403. Because Chapter 78-
85 is made available to persons "substantially affected by a final action
of any agency with respect to a permit," a landowner could claim that the
issuance of a permit from the water management district to Collier County
to implement the Interim Action Program substantially affects his or her
property rights and thus triggers the new act's application. It might
even be possible for a person to invoke Chapter 78-85 based upon a claim
that the denial of the permit to the County (if that should occur) had
substantially affected his rights in some way.
Whether the claimant under the act is alleging that his rights have
been substantially affected by the issuance of a permit requested by
Collier County or the denial of the requested permit, it is the permit-
ting agency that will be the defendant in the circuit court proceedings
provided by Chapter 78-85. It is the final action by the state agency,
in this case the South Florida Water Management District or Department of
Environmental Regulation, that would be the object of the legal chal-
lenge that a taking had occurred without just compensation.
An argument may be made, however, that Chapter 78-85 is not intended
to apply to circumstances in which the challenged agency action does not
result in a taking by that agency, but results in a taking by another
agency or local government. For example, one of the remedies provided in
the statute is for the agency to "issue the permit." This indicates the
act is intended to affect agencies which unreasonably refuse to issue a
reasonable permit and thereby "take" the land of a permit applicant. The
broad legislative scheme seems directed to giving landowners an alternative
remedy in cases where a remedy presently exists. Since it seems doubtful
that an action could presently be brought against DER or SFWMD for issuing
a permit that authorizes another unit of government to do some act that
causes a taking, Chapter 78-85 arguably does not create such a remedy.
The crux of the new act is its alternative review mechanism. It
permits an appeal of final agency action to a circuit court, if initiated
within 90 days, (2), where the sole issue for determination will be
whether the action was an unreasonable exercise of the police power so
as to constitute a taking without just compensation. Id. A party is
thus able to skip the administrative appeal of the final action on the
permit and have the taking issue examined by the court. Rhodes, supra.
at 745, n. 30.
The remedy provisions of Chapter 78-85 come into play only after the
circuit court determines that a taking has actually occurred. The court
then remands the matter to the agency which must, within a "reasonable
1) Issue the permit;
2) Pay money damages which take into account any enhance-
ment of the land's value attributable to governmental
3) Modify the decision to avoid a taking. Ch. 78-85, 3.
The court is empowered to order performance of one of the options listed
above if the agency fails to respond within a reasonable time. 4. Attor-
ney's fees and court costs are awarded to the prevailing party. 5.
In summary, Chapter 78-85 is not likely to apply to the County's
action on one of its own permits because the definition of "permit" in
section 1(2) is limited to five chapters of the Florida Statutes which are
almost entirely concerned with state-level agency operations. However,
the act might be invoked by a landowner claiming to be substantially
affected by the issuance of a permit to the County by the South Florida
Water Management District or the Department of Environmental Regulation.
If applicable, the act would allow an appeal of the agency action to the
circuit court for the sole determination of whether a taking without just
compensation has occurred. If an unconstitutional taking is held to exist
by the court, the matter is remanded to the agency for a choice of action
that will avoid the unconstitutionality.