| Material Information
||Conclusions and Recommendations
||Frank E. Maloney, Attorney At Law
||North America -- United States of America -- Florida
||Richard Hamann's Collection - Conclusions and Recommendations
||Box 12, Folder 5 ( Legal Ramifications of Implementation of the Interim Action Program in Golden Gate Estates, Collier County, Florida - 1979 ), Item 14
||Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
XIII. CONCLUSION AND RECOMMENDATIONS
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
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.