Title: Conclusions and Recommendations
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003034/00001
 Material Information
Title: Conclusions and Recommendations
Physical Description: Book
Language: English
Publisher: Frank E. Maloney, Attorney At Law
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collection - Conclusions and Recommendations
General Note: Box 12, Folder 5 ( Legal Ramifications of Implementation of the Interim Action Program in Golden Gate Estates, Collier County, Florida - 1979 ), Item 14
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003034
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


1). In researching the legal issues that are implicated by Collier

County's Interim Action Program proposals, the virtual absence of case

law involving similar or analogous factual circumstances was an obstacle

to the development of many conclusions or predictions with respect to the

law's probable application to Collier County. What was accomplished,

however, was the articulation of the legal arguments that would be

important to the resolution of these issues in the event of litigation.

If either of the alternatives of the proposed Interim Action Program

is implemented, there is a possibility the County would be required to pay

compensation to affected landowners measured by the diminution in value of

their property. On the other hand, there are strong arguments in favor of

allowing the County to abate the harmful impacts of the present canal

system without having to pay compensation. Because the intermediate level

alternative would affect fewer properties and would have less of an impact

on the use of affected properties, the potential liability of the County

is obviously less than for the ground level alternative. But since there

is no legal precedent regarding the validity of restoring water levels

under such circumstances as those present in Golden Gate Estates, no

certain prediction can be made regarding either alternative.

It is therefore recommended that the County consider seeking a declara-

tory judgment with respect to whether it would be liable for raising water

levels in Golden Gate Estates.

2). It is further recommended that the County consider imposing a

moratorium on development in at least a portion of the Golden Gate Estates

tract. Such a moratorium would not only preclude development with adverse

environmental impacts from occurring, but would also preclude development


_ ----------I-

that is inconsistent with whatever final, more environmentally acceptable

plan of redevelopment is adopted by the County. If additional develop-

ment in the affected area is not precluded, the County could find itself

in the position of having to buy certain developed properties or risk

having to pay compensation for interference with rights to their ownership

and use. It should be noted, however, that the legal viability of this

alternative has not been analyzed in this report.

3). Permits will probably be required from the South Florida Water

Management District, the Florida Department of Environmental Regulation

and the U.S. Army Corps of Engineers. Therefore, the County should contact

each of these agencies prior to making a final decision on the Program so

their concerns may be identified and resolved.

4). The County should also explore the possibility of immediately

imposing restrictions throughout the Golden Gate Estates area to ensure

that future development is consistent with restoration plans. Thus, for

example, the County might require private roads, dwelling units and

individual sewage treatment systems to be elevated to such a height that

raised water levels would not interfere with the use of such facilities.

In view of the area's susceptibility to flooding, such restrictions are

not unreasonable or unwarranted, whatever happens in the future. A

discussion of other regulatory mechansims available to the County appears

in the Phase I Golden Gate Estates Redevelopment Study, Collier County,

Florida, of June 1976.

5). Since the Federal Trade Commission appears to have been required

by NEPA to prepare an environmental impact statement before issuing its

1974 consent decree against the Gulf American Corporation, a lawsuit to

invalidate the order and require the preparation of an EIS before issuing


another appears likely to succeed. Therefore, the County should consider

whether the consent decree is sufficiently harmful to justify the expense

of litigation. If it is decided to undertake such litigation, the

possibility of seeking assistance from an organization such as the Natural

Resources Defense Council or the Environmental Defense Fund with expertise

and an interest in NEPA enforcement actions might also be considered.

6). Expert testimony and factual data related to the hydrology

and ecology of Golden Gate Estates and the Big Cypress watershed will

be essential to:

(a) establish the reasonable necessity of Collier County's

Interim Action Program and future redevelopment proposals,

(b) provide data from which diminution of value and loss of

access determinations can be realistically calculated

(e.g., to show that an alleged taking due to flooding

occurred on lands already subject to regular flooding), and

(c) develop the data necessary to implement future redevelop-

ment plans and long-range water resource management.

The County should therefore take steps to compile existing information and

develop new information on county water resources within Golden Gate

Estates. This information should be developed in such a manner as to

assure its admissability and credibility if needed in future litigation.


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