Title: Looking for the Middle Ground on Snyder
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 Material Information
Title: Looking for the Middle Ground on Snyder
Physical Description: Book
Language: English
Publisher: Environmental and Land Use Law Section Reporter Vol XV, No. 3 August/Sept. 1993
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Looking for the Middle Ground on Snyder (JDV Box 91)
General Note: Box 23, Folder 1 ( Miscellaneous Water Papers, Studies, Reports, Newsletters, Booklets, Annual Reports, etc. - 1973 -1992 ), Item 49
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Full Text








RECEIVED

.,t," a


ENVIRONMENTAL AND

LAND USE LAW SECTION

REPORTER

Vol. XV, No. 3
August/September 1993


Irene Kennedy Quincey, Chair Richard Hamann, Co-Editor Robert D. Fingar, Co-Editor


proper


Potential Implications of
Snyder
Courts, local governments and com-
mentators have been quick both to
criticize and react to the "quasi-
See "Middle Ground", page 22


Introduction
Recent opinions by Florida courts
have those of us who practice before
and on behalf of local governments
wondering whether we are seeing a
fundamental change in how develop-
ment decisions are to be made by
local governments and reviewed by
courts.
Snyder v. Board of County Com-
missioners of Brevard County, Flor-
ida, 595 So.2d 65 (Fla. 5th DCA
1991), currently on appeal to the Flor-
ida Supreme Court, will determine
how much discretion a local govern-
ment has in implementing its
comprehensive plan through zoning
decisions, what "process" is due the
parties to rezoning decisions, and
who bears the burden of proving
that a rezoning decision is or is not
consistent with a plan.
In Snyder, Mr. Snyder requested
that his property be rezoned to a
more dense zoning classification.
The County denied this request even
though the requested density was
less than the maximum allowed by
the plan. Snyder challenged this de-
nial as being inconsistent with the
plan. On appeal, the Fifth District
determined that a decision to deny
a rezoning is a quasi-judicial action
which will be viewed with strict scru-
tiny by the circuit court. Under the
f Snyder approach, once a landowner
shows that the requested rezoning
was consistent with the plan, the bur-
den shifts to the local government


public necessity requires a specified,
more restrictive use."
Much has been written on Snyder
and its progeny. This article will dis-
cuss at least one persuasive case
which provides an alternative, but
still "Snyder-like" approach, and pro-


As our member-
ship increases we
are continually chal-
lenged to provide
opportunities for
all our members to
participate in Sec-
tion activities. This
was the underlying
theme of the 1993
Executive Council Retreat in May.
We have memorialized the goals of


the section and of our existing com-
mittees. The goals of the Environ-
mental & Land Use Section are:

Promote and provide education
to the Bar, law students affili-
ates and the public on Environ-
mental and Land Use Law
related topics.
Provide a forum for exploring is-
sues of ethical concerns in envi-
See "Chair", page 2


Looking for the Middle Ground on Snyder
by Richard J. Grosso to prove "by clear and convincing evi- vide some thoughts as to the
1000 Friends of Florida dence that a specifically stated response to this line of cases


Chair's Comment:

Meeting Our Goals-

Today and Tomorrow


INSIDE:

Non-Lawyer Representation Committee Recommendations Approved ..... 3
Ethics in the Practice of Environmental and Land Use Law ....... 5
Capitol Report...... ..............................6
Capitol Report . . . . . . . . . 6
Department of Community Affairs Update ................... 9
Florida Caselaw Update ................. . . 11
District Updates ......... . . ... . . 15
Federal Caselaw Update . . . . . . . ..... 17
1993-94 Section Budget . . . .... . . 18
On Appeal ...................................... 19
Seminar: "Current Issues in Land Use, the Environment and Local
Government: A User's Guide ......................... 26







CHAIR


from page 1


ronmental and land use law.
Encourage and promote access
to justice in environmental and
land use matters.
Increase committee membership
and participation.
Promote diversity in Section
membership and executive coun-
cil.
Promote increased affiliate mem-
ber participation in Section ac-
tivities.
Publish a variety of written
material for research and com-
munication.
Increase general membership of
ELULS.
Provide financial and other
forms of assistance to accom-
plish the goals of the Section.
A booklet outlining these goals
and objectives has been completed
and will be forwarded to all Section
members.
The Ad Hoc Committee on Certifi-
cation continues its work. Of the
2300 questionnaires submitted to
members only 20% were returned.
This is a very discouraging indica-
tion of interest in this program. Of
the surveys returned, there was only
a slight majority in favor of certifi-
cation in environmental law (58%)
and in favor of certification in land
use law (52%). A combined environ-
mental and land use law certifica-
tion program received a bare major-
ity (47% vs 46%).
When 80% of the members do not
respond, the results cannot be inter-
preted as a mandate from our mem-
bers to proceed with certification.
However, the ad hoc committee will
pursue its charge in developing a rec-
ommendation on certification by
August 1993. The ad hoc committee
will be evaluating the reasons The
Florida Bar established the certifi-


cation program and its applicability
to the Environmental and Land Use
Law areas of practice.
I wish to thank the Ad Hoc Com-
mittee on Non-Lawyer Representa-
tion in Land Use and Environ-
mental hearings for completing its
work and providing excellent recom-
mendations for future consideration.
This committee looked at the re-
cent increase in formality of land
use and zoning hearings. It consid-
ered that the increased formality
coupled with the change in the tra-
ditional view that land use and
zoning matters are protected under
the First Amendment as petitions to
government, have created a safe of
flux about the meaning of "compe-
tency" for all professionals involved
in zoning and land use matters.
Increased attention and height-
ened awareness by attorney and
affiliate members will assist in pro-
viding competent representation to
the public. The Ad Hoc Committee's
recommendation was that continued
focus on these issues is best pro-
vided through our Section's Stand-
ing Committee on Ethics.
Exciting opportunities exist for
member participation in the Envi-
ronmental and Land Use Law Eth-
ics newly created subcommittees.
These are being formalized to pro-
vide expanded services to Section
members, attorneys and affiliate
members. The need for the subcom-
mittees has been identified by the
response to the recent ethics survey
and the recommendations of the Ad
Hoc Committee on Non-Lawyer Rep-
resentation.
The four subcommittees will be
the ELULS Reporter Column Sub-
committee, the ELULS CLE Manual
Committee Liaison Subcommittee,
the ELULS CLE Seminar/Work-
shops Committee Liaison Subcommit-
tee, and Subcommittee on Profes-
sional Competence. The ELULS
Reporter Column Subcommittee will
be responsible for preparing a col-


umn dealing with topical ethical
issues for inclusion in each issue of
the Reporter. The ELULS CLE
Manual Committee Liaison Subcom-
mittee will work with the ELULP
CLE Manual Committee with re 7
spect to preparation of a CLE
chapter on ethics on preparation of
a handbook dealing with ethical is-
sues for practitioners. The ELULS
CLE Seminar/Workshops Commit-
tee Liaison Subcommittee will be
responsible for organizing and index-
ing the various ethical materials
already made available through Sec-
tion CLE activities. It is hoped that
this subcommittee will ultimately
serve as a repository for speakers
interested in Environmental and
Land Use Law ethical issues. The
subcommittee on Professional Com-
petence will, hopefully, be composed
of lawyers and affiliate members
who can follow up on the recommen-
dation of the Section's Ad Hoc Com-
mittee on Non-Lawyer Represen-
tation to deal with issues of profes-
sional competence, especially in the
context of quasi judicial hearings.
I encourage any member inter-
ested in these cutting edge issues
to contact Bob Riggio. I firmly be-
lieve the quality of legal services we
will provide in the 1990's will im-
prove with increased attention on
this area of professional responsibil-
ity.
Finally, a note to our affiliate mem-
bers. The ELULS Executive Council
appreciates the efforts of our affili-
ates, specifically in participation in
seminars, workshops and contribu-
tions to Section publications and at
the annual meeting.
It seems that the major goal of
integrating affiliate members into
the programs of the Section has
been successfully met. We have met
additional goals of identifying areas
where lawyer and affiliate member
interest converge and diverge. Dur-
ing the next few years I would like
to see these achievements main-
tained, as we expand our under-
standing of the relation between af-
filiates and our Bar-related empha-
sis on provision of Section services
to attorney members.
As a final note, the Committee on
Access to Justice will continue to pro-
mote pro bono opportunities in keep-
ing with the recent Florida Supreme
Court ruling.
Irene Kennedy Quincey


Coming Up!

Midyear Meeting of The Florida Bar
January 12-15, 1994
Hilton at Walt Disney World Village
Details in future issues of The Florida Bar News.








Non-Lawyer Representation

r Committee Recommendations

Approved


by Mary D. Hansen

After a year and a half of hard
work, the ELULS Ad Hoc Commit-
tee on Non-lawyer Representation
in Zoning Matters presented its re-
port and recommendations at the
May meeting of the Executive Coun-
cil. It was unanimously approved.
The Committee concluded that
the core of the issue was judge-made
changes on how land use practitio-
ners must view their professional
competence. Because variances, spe-
cial exceptions and rezonings have
all been deemed "quasi-judicial" pro-
ceedings, there is now a more for-
mal, due process oriented procedure
in land use hearings.
Not all land use proceedings re-
quire an attorney, but distinguish-
ing between those proceedings
which need legal guidance and those
which do not is likely to be difficult
to determine in the next few years.
The issue is one of particular inter-
est to the Section's affiliate mem-
bers, as expressed by the Affiliate
Chair, Les Solin.
As a result, permanent responsi-
bility for education of the Section
members in this arena now rests
with the Section Ethics Committee.
In addition, the Section will con-
tinue discussions with the profes-
sional organizations representing
Section affiliate members. Commu-
nication with relevant Bar Sections
and Committees will also continue.

Final Report of the ELULS
Ad Hoc Committee on
Non-Lawyer Representation
in Land Use and
Environmental Hearings

Executive Summary
Because the procedural and sub-
stantive formalities of Chapter 163,
F.S. have greatly increased and be-
cause of recent judicial decisions de-
fining some aspects of land use and
zoning decisions as "quasi-judicial",
the Executive Council of ELULS ap-


pointed an Ad Hoc Committee to
look into the issue of nonlawyer rep-
resentation in zoning and land use
proceedings. After numerous discus-
sions, an evaluation of a member-
ship questionnaire and contact with
organizations representing both li-
censed and non-licensed land use
and environmental professionals,
the Committee concluded that the
core of the issue was how to insure
competent representation in a rap-
idly changing procedural and sub-
stantive milieu.
The Committee also concluded
that uninformed or inappropriate rep-
resentation in land use and zoning
matters impedes the general public
interest in fair, efficient and accessi-
ble local government decisionmak-
ing and may tend to lessen citizen
participation because lay groups be-
come intimidated by the formality
or are unable to bear the cost. The
Committee has not concluded that
a lawyer is needed in all quasi-
judicial proceedings.
The recommendations include pro-
viding a permanent vehicle for
discussion and response to the is-
sues by assigning the responsibility
to the Section Ethics Committee; con-
tinued discussion with the profes-
sional organizations of our affiliate
membership; continued contact with
relevant Bar Sections and Commit-
tees; and, regular dissemination of
information to our membership by
way of the Section Reporter.

Introduction and Background
In August of 1991, the Executive
Council of the Environmental and
Land Use Law Section created an
Ad Hoc Committee to look into the
issue of non-lawyer representation
in zoning and environmental hear-
ings. The need for discussion
stemmed from a number of circuit
and district court cases dealing with
the quasi-judicial nature of certain
land use and zoning proceedings, as
well as the exparte contact decision
by the 3d DCA in Jennings. When
the Executive Council was pre-


sented with the issue, the Council
agreed that both lawyers and nonlaw-
yers could benefit by further review
of the matter. Although the issue
was presented as relating to a po-
tential for the unauthorized practice
of law, neither the Council nor the
Ad Hoc Committee has endorsed
that view.
The Committee members moved
quickly to address the charge from
the Executive Council. A number of
meetings and telephone conferences
were held, and contacts were made
with organizations representing the
Section's affiliate professions. A sur-
vey was conducted of Section mem-
bers to determine the practitioners'
view of whether problems develop
with non-lawyer representation in lo-
cal land use proceedings. The Sec-
tion's affiliate members have been
well represented on the Ad Hoc Com-
mittee, and have participated fully
in the discussions.
The membership survey revealed
a wide range of viewpoint on
whether there is a problem for
clients, local government and the pub-
lic stemming from non-lawyer repre-
sentation in zoning and land use
matters. Most lawyers felt the need
for legal advice arises well before
the day of the hearing, while a num-
ber of the affiliate members felt that
the need for legal counsel arises at
the time the client decides to appeal.
Given the recent court decisions
with regard to the quasi-judicial na-
ture of special exception, variance
and rezoning actions and given the
more sophisticated legal procedures
mandated by state statutes, the Com-
mittee recognized that notions of
how to allocate the burden of proof,
what constitutes competent and sub-
stantial evidence and when to object
may not always be within the com-
petency of non-lawyers. On the other
hand, lawyers who specialize in
other areas but still take the occa-
sional zoning case may be acting
outside their area of competence in
the substantive sense. The courts
have not been particularly helpful
continued...







NON-LAWYER
from preceding page



in assisting land use and zoning prac-
titioners to understand their vary-
ing professional obligations in quasi-
judicial matters.
The area of "competence" is
fraught with uncertainty for affili-
ate members who are not engaged
in a licensed profession with an
adopted Code of Professional Ethics.
Different professional organizations
related to the same specialty may
have varying ethical standards.
Even where organizations impose a
code of ethics, enforcement may be
lacking.
Complicating the confusion of the
judicial pronouncements, a political
dimension was also inserted in the
Committee's discussions. A number
of the affiliate professions who had
heard rumors of the creation of the
Ad Hoc Committee were concerned
that the environmental and land use
lawyers were trying to corner the
market for land use matters. The
Committee's response has been a gen-
eral unwillingness to presume that
a lawyer is needed in all quasi-
judicial proceedings. However, un-
less the courts make clear their
intent with regard to public access
and administrative cost issues, this
presumption may prove incorrect.
The public interest aspects of the
recent court decisions are also of
great concern to the Committee. The
Committee believes that a number
of homeowner, environmental watch-
dog and other public interest groups
will be discouraged from opposing
particular zoning and land use pro-
jects because of the intimidating
formality of a quasi-judicial proceed-
ing and because of the additional
cost in hiring a lawyer or other quali-
fied representative.
In administrative proceedings,
Chapter 120, F.S., and the imple-
menting rules provide for qualifica-
tion of lay representatives and
establish standards for the conduct
of formal proceedings. This may be
one way in which the problem in
land use hearings can be addressed.
The Committee has addressed
each of the charges given us, and
our consensus is that the Ad Hoc
Committee work is done. However,
much remains to be monitored and


resolved, so it is imperative that a
permanent vehicle be found for the
continued involvement of the Sec-
tion in these issues.

Conclusions
Based on its inquiries and discus-
sions, the Ad Hoc Committee has
formed a number of conclusions:
1. The core of the problem con-
cerns a lawyer or non-lawyer practi-
tioner's competence to meet the
procedural and substantive require-
ments of quasi-judicial hearings.
a. A practitioner may be compe-
tent for substantive purposes but
not procedurally, and vice versa.
b. Case decisions on the conduct
of quasi-judicial proceedings have in-
creased the formality of land use
and zoning hearings. The increased
formality coupled with the change
in the traditional view that land use
and zoning matters are protected un-
der the First Amendment as peti-
tions to government, have created a
state of flux about the meaning of
"competency" for all professionals in-
volved in zoning and land use mat-
ters.
2. The general public interest in
fair, efficient and accessible local gov-
ernment land use decisions is not
served by uninformed or inappropri-
ate representation of the proponents
or opponents to a land use proposal.
3. With increasing formality come
increasing costs. As a result, access
to the decision-making system may
be denied to poor people, or to those
groups formed to promote or protect
a particular public interest position.
4. The courts may not be equipped
to give specific guidance to land use
representatives with respect to their
roles in quasi-judicial proceedings.
Therefore, legislation may be
needed to clarify how professionals
can avoid violations of their codes
of ethics and how unlicensed/unaf-
filiated professionals can avoid mal-
practice claims.
5. The issue is one of imperative
interest to the lawyer and affiliate
members of the Section. Because
there is a likelihood that matters
will not be resolved soon, a more per-
manent vehicle for continued atten-
tion to the issues should be estab-
lished.

Recommendations
Given the foregoing conclusions,
the Ad Hoc Committee hereby rec-


ommends that the Executive Coun-
cil take the following actions:
1. Dismiss the Ad Hoc Committee
as having completed its charge, and
assign permanent responsibility for'
pursuit of the quasi-judicial hearing
issues to the Section Ethics Commit-
tee.
2. The Ethics Committee should
assign members to address a num-
ber of matters, including
a. Regular communication with
the Section's Affiliate Member, Pub-
lic Interest, Legislation and CLE
Committees.
b. Monitoring and discussion with
non-lawyer professional organiza-
tions, such as Florida Planning and
ZoningAssociation, Florida Engineer-
ing Society, Florida Association of
Environmental Professionals, Flor-
ida Chapter of the American Society
of Landscape Architects, Florida
Chapter of the American Planning
Association and Florida Association
of the American Institute of Archi-
tects.
3. Monitoring of court cases and
local government practices with re-
gard to quasi-judicial hearings, and
dissemination of the information to
the membership with a regular col-
umn in the Section Reporter.
4. Address similar issues as they
arise in administrative agency pro-
ceedings, particularly where the ac-
tion of the agency cannot strictly be
termed "quasi-judicial".
5. Periodic reporting and advice
to the Executive Council with regard
to the unfolding issues and recom-
mended actions.
6. Maintain communication with
the UPL Committee of the Bar.
The members of the Environ-
mental and Land Use Law Section
Ad Hoc Committee on Non-lawyer
Representation are pleased to sub-
mit this final report and recommen-
dations to the Executive Council, in
satisfaction of the August 1991
charge to the Committee.
Special acknowledgement must go
to the numerous affiliate members
of the Section, who have maintained
an active participation in the issues
before the Committee, and who re-
turned to their respective profes-
sional organizations to insure that
discussion and implementation oc-
cur as appropriate. Les Solin, Carl
Gosline, Murray Kaplan and Chris
Hurst have all contributed greatly








to this final product. We would also
like to acknowledge the thoughtful
assistance of Irene Quincey and Bob
. Riggio, who helped shape the ulti-
mate recommendations contained in
this report. Finally, former Section
Chairs Al Malefatto and Tom Pel-
ham are thanked for their roles in
the establishment and process of the
Committee.
The members of the Ad Hoc Com-


mittee look forward to discussing
their conclusions and recommenda-
tions with the Executive Council at
the meeting in May. We have appre-
ciated the opportunity to be of serv-
ice to the Section.
Mary D. Hansen, Chair

Ad Hoc Committee Members:
Cecelia Bonifay, Esq.
Robert Fingar, Esq.


Chris Hurst, P.E.
James Kammert
Murray Kaplan, AICP
Dennis Koehler, Esq.
Henry Lee Morgenstern, Esq.
Irene Quincey, Esq.
Robert Riggio, Esq.
Cari Roth, Esq.
Mary Smallwood, Esq.
Les Solin, AICP
Lloyd Stebbins, P.E.


Ethically Speaking


Ethics in the Practice of

Environmental and Land Use Law

by Robert D. Riggio


Ethical problems are not unique
to practitioners of environmental
and land use law. However, they do
often involve complicated and
unique situations rarely, if ever, en-
countered in law school ethics
courses or general ethics texts. As a
^ result, they pose a real hazard to
the unwary practitioner who may
not have even recognized that an ethi-
cal issue existed. Even when the ethi-
cal issue has been identified, it may
still be difficult to obtain meaningful
advice from hypothetical or opin-
ions based on facts or proceedings
much different from those fre-
quently encountered by environ-
mental and land use law practitio-
ners.
In the recently completed survey
conducted by the Ethics Committee
of the Section, it was apparent that
the ethical issues raised by the sur-
vey respondents were generally com-
mon to those shared by attorneys in
other fields of practice. Except for
the circumstances under which they
arise, ethical issues such as conflict
of interest, client confidentiality and
those relating to the counseling of
clients, are typical of all attorneys.
Obviously, fact situations such as
knowledge of potential hazardous
waste problems made known
through a transactional audit, rep-
resenting multiple PRPs at a Super-
fund site or working with profes-
sional consultants in a land use mat-


ter, may appear unique to this area
of law but ultimately resolution of
the ethical issues relating to them
will come from an analysis of the
rules which apply to the Bar as a
whole.
Certain issues are somewhat
unique to environmental and land
use practitioners. For the most part,
these issues appear to arise out of
the evolving nature of agency and
governmental practice. Considering
the sudden expansion of governmen-
tal regulatory and permitting author-
ity and the relatively recent origin
of the Florida APA, it is not surpris-
ing that such proceedings have
given rise to some relatively unique
ethical problems. For instance,
many survey respondents sought gui-
dance on the recent ex parte deci-
sions and also their communications
with non-lawyer governmental regu-
lators, especially in the permitting
context. Those in government ex-
pressed concerns about the separate
ethical codes provided for by
Chapter 112 F.S. and local charters
or ordinances affecting them. Fi-
nally, in those situations where law-
yers and other professionals may be
working together, there was concern
over the potential for conflict be-
tween the professionals' code and
those which regulated the attorneys'
conduct.
Respondents to the survey indi-
cated that they did not turn to any


particular source in resolving their
ethical problems. Not surprisingly,
of those sources referenced, other at-
torneys and fully researched ethics
opinions were turned to relatively
infrequently. An often made com-
ment was that for hypothetical to
be useful they needed to relate more
to fact situations typically encoun-
tered in environmental and land use
law practice.
This column and columns to fol-
low in The Reporter are an attempt
to respond to a perceived need to ad-
dress individual ethical topics and
illustrate them with fact situations
potentially of use to Section mem-
bership. The purpose of the column
is to hopefully alert practitioners to
ethical issues they may not be aware
of and to suggest sources and means
of resolving them. As such, it is
hoped that this column serves as a
forum for discussion and further re-
search in the many ethical issues af-
fecting this Section.

Robert J. Riggio is a shareholder
in the Daytona Beach law firm of
Owens & Riggio P.A. In 1986, he
graduated cum laude from the Uni-
versity of Miami School of Law. Mr.
Riggio is a member of the Executive
Council of the Environmental and
Land Use Law Section of The Flor-
ida Bar and serves as chair of the
Section's Ethics Committee.








Capitol Report

by Cari Roth, Chair,
ELULS Legislative Review Committee


The first few hot and humid days
of summer here in Tallahassee have
been far from lazy as state agencies
and private interest groups scram-
ble to address all the rulemaking
and reporting dictated by legislation
passed during the 1993 Session. In
addition, several advisory groups cre-
ated by legislation are already at
work. This article will briefly sum-
marize the activities that are under-
way but will not attempt to sum-
marize the content of current draft
rules since the information will be
so quickly dated. The article will
also address a few vetoes of bills of
interest to the Section.

ELMS III Implementation
The Department of Community Af-
fairs has been conducting workshops
throughout the state soliciting input
on implementation of various as-
pects of the ELMS bill including the
intergovernmental coordination ele-
ment, evaluation and appraisal re-
ports, uniform standards and short
form application for development ap-
proval for developments of regional
impact, guidelines and standards for
DR1 thresholds, dispute resolution,
and strategic regional policy plans.
The following is a synopsis of the
present rulemaking underway in the
Department of Community Affairs
and the proposed rule development
schedule. Please note that all dead-
line dates are proposed, not final:
Urban-Rural Planning. Rule-
making pursuant to 163.3177(11),
F.S. (1992 Supplement), which pro-
vides for planning in rural areas and
revitalizing urban areas. (9J-5.0061
and 9J-5.0062, F.A.C.). Proposed
rule to be published in FAW August
17, 1993.
Amendment Procedures. Rule-
making pursuant to Ch. 93-206,
Laws of Florida (ELMS Bill Sections
9, 10, 11 and 12) which includes new
statutory requirements for s.
163.3177, 163.3181, 163.3184,
163.3187 and 163.3189, F.S. to
amend the procedures for submittal
and review of local comprehensive
plans and amendments. (Rule 9J-
11, F.A.C.). Proposed rule to be pub-


lished in FAW June 15, 1993.
ICE Schedule. Rulemaking pur-
suant to Ch. 93-206 Laws of Florida
(ELMS Bill Section 6) to adopt a
schedule for the phased completion
and transmittal of plan amend-
ments to revise the Intergovernmen-
tal Coordination Element (ICE) (Ch.
163.3177(6)(h)6., F.S.). Deadline for
public comments, August 3, 1993;
proposed rule to be published in
FAW August 17, 1993.
EAR Schedule. Rulemaking pur-
suant to Ch. 93-206 Laws of Florida
(ELMS Bill Section 13) to adopt a
phased schedule for the submittal of
EAR Reports (Ch. 163.3191(8), F.S.).
Deadline for public comments
August 3, 1993. Proposed Rule to be
published in FAW August 17, 1993.
Land Development Regula-
tions. Rulemaking pursuant to Ch.
93-206, Laws of Florida (ELMS Bill
Section 14) which amends s.
163.3202, F.S. to require adoption
of LDR's to implement the revised
Intergovernmental Coordination Ele-
ment provisions. (Rule 9J-24,
F.A.C.) The July, 1993 Issue of Com-
munity Planning, will include pub-
lished drafts or abridged drafts of
rules. Deadline for public comments
August 3, 1993; proposed rule to be
published in FAW August 17, 1993.
Coastal. Rulemaking pursuant to
Ch. 93-206, Laws of Florida (ELMS
Bill Section 2 and 7) which amends
s. 163.3128 and 163.3164, F.S. to de-
fine coastal areas and require the
designation of the Category 1 evacu-
ation zone as the "high hazard
coastal area." (Rule 9J-5.003 and 9J-
5.012, F.A.C.) Deadline for public
comments August 3, 1993; proposed
rule to be published in FAW August
17, 1993.
EAR Content. Rulemaking pur-
suant to Ch. 93-206, Laws of Florida
(ELMS Bill Section 13) which
amends the statutory requirements
in s. 163.3191, F.S., the evaluation
and appraisal report provisions.
(Rule 9J-5.005(7), F.A.C.) Rule Work-
shops September 14-21, 1993; Pro-
posed rule to be published in FAW
October 12, 1993; proposed rule to


be published in FAW October 12,
1993.
Intergovernmental Coordina-
tion Element (ICE). Rulemaking
pursuant to Ch. 93-206, Laws of Flor-
ida (ELMS Bill Section 6) which in-
cludes new statutory requirements
for s. 163.3177(6)(h), F.S. the con-
tent of the Intergovernmental Co-
ordination Element. (Rule 9J-5.015,
F.A.C.) Rule Workshops September
14-21, 1993; Proposed rule to be pub-
lished in FAW October 12, 1993.
Housing Element. Rulemaking
pursuant to Ch. 93-206, Laws of Flor-
ida (ELMS Bill Section 6) which
amends the statutory requirements
in s. 163.3177(6)(f), F.S. the housing
element and provides for an af-
fordable housing needs assessment
rule. (Rule 9J-5.010 F.A.C.) Rule
Workshops September 14-21, 1993;
Proposed rule to be published in
FAW October 12, 1993.
Concurrency Management.
Rulemaking pursuant to Ch. 93-
206, Laws of Florida (ELMS Bill Sec-
tion 8) creates a new s. 163.3180,
F.S. which provides specific concur-
rency management requirements in-
cluding flexible transportation con-
currency provisions and exemptions.
(Rule 9J-5.0055, F.A.C.) Rule work-
shops September 14-21, 1993; pro-
posed rule to be published in FAW
October 12, 1993.
Transportation Element. Rule-
making pursuant to Ch. 93-206,
Laws of Florida (ELMS Bill Section
6) which amends the statutory re-
quirements in s. 163.3177(6)(j), F.S.
to incorporate new standards for a
new single transportation element
for communities over 50,000 and ad-
dress land use compatibility in the
vicinity of airports. Rule workshops
September 14-21, 1993; proposed
rule to be published in FAW October
12, 1993.
DRI Thresholds. Recommended
amendments to the Administration
Commission for DRI Thresholds in A
urban central business districts and
regional activity centers. s.
380.06(2)(e). Proposed workshops (4)
August 2-6, 1993; proposed DCA







draft rule to Administration Com-
mission by August 26, 1993; Public
Hearing October 21, 1993; Adminis-
tration Commission filing for adop-
tion November 11, 1993.
Short Form ADA Application
and Uniform DRI Review Stan-
dards. Adopt short application form
for DRIs that are consistent with
adopted LGCP (s. 380.06(7), and
adopt uniform DRI review stan-
dards. s. 380.06(23). Proposed work-
shops (4) August 2-6, 1993; proposed
workshop comment deadline August
20, 1993; proposed hearing date, Oc-
tober 25, 1993; proposed adoption
date December 10, 1993.
DRI Thresholds. Prepare report
and recommendations regarding re-
visions to DRI guidelines and stan-
dards. (Section 76, ELMS). Proposed
workshops (4) August 16-18, 1993;
proposed workshop comment dead-
line September 17, 1993; circulation
of "Final Report Version" November
8, 1993; proposed "Send to Printer"
deadline November 15, 1993.

Partners for a Better
Florida Advisory Council
S In 1993 the Legislature re-
authorized the Partners for a Better
Florida Advisory Council, the group
responsible for the permit stream-
lining proposal which was eventu-
ally enacted by the 1993 Legislature
after considerable modifications by
additional agency and private inter-
est groups. The full Advisory Coun-
cil met July 6 and 7 in Orlando.
The Advisory Council is scheduled
to evaluate proposals to expand the
review criteria of the new environ-
mental resources permit created by
the permit streamlining legislation
to include all important upland habi-
tats and ecosystems. One proposal
includes mapping of critical ecosys-
tems where development would
either be prohibited or highly dis-
couraged. The proposal also includes
mapping of "greenlight" develop-
ment areas where development
would be encouraged. Permitting in
these greenlight areas would largely
be left to local governments. The re-
maining areas would be subject to
the current permitting scheme.
Other proposals include extension
of upland habitat issue considera-
tions to all environmental resource
permit reviews. DEP is considering
similar issues.


DER/DNR Merger and
Permit Streamlining
The Department of Environ-
mental Protection is busily integrat-
ing the activities of DER and DNR.
Several internal task forces have
been created to implement the mer-
ger of the two agencies with consid-
erable participation by interested out-
side parties. A report is due to the
Legislature on both the merger and
streamlining by December 10, 1993.

ACIR Study of Fiscal
Impacts of ELMS
Legislation on Local
Government
The ELMS legislation required
the Advisory Council on Intergovern-
mental Relations to submit a report
to the Governor and Legislature by
December 1, 1993 of the fiscal im-
pacts of the recently enacted
changes to growth management leg-
islation on cities and counties. A sur-
vey of local governments is intended
to be distributed in September, 1993
with the month of October being
used to develop final methodology
and prepare a draft report.

Vetoes
Property Rights. After consider-
able pressure from both ends of the
political spectrum, the Governor ve-
toed Senate Bill 1000, creating the
Florida Property Rights Study Com-
mission. The veto message termed
the legislation "a misguided effort
to balance property owners rights
and environmental interests. The
study commission composition and
the charge to the commission as set
forth in the bill do not provide a bal-
ance between the interest of prop-
erty owners and the appropriate role
of government in protecting the en-
vironment and managing growth."
The same day, June 4, 1993, the
Governor issued an executive order
establishing the Governor's Property
Rights Study Commission II. The
commission will be comprised of 15
persons appointed by the Governor
as follows: three private property
owners, one economist familiar with
evaluation of property, two local gov-
ernment officials, the Secretaries of
the Departments of Community Af-
fairs and Environmental Protection
or their designees, a representative
from a water management district,
three representatives of conserva-


tion organizations, one represen-
tative of The Florida Bar who will
serve as chair and one person each
recommended by the Speaker of the
House and President of the Senate.
The Speaker and President's recom-
mendations are due to the Governor
by July 15, 1993. No appointments
to this commission have yet been
made.
The Governor's Commission is
charged with making recommenda-
tions to the Governor by January 30,
1984 on the following:
(a) The issue of balancing pri-
vate property rights and pro-
tection of the public interest;
(b) The effectiveness of reme-
dies in existing Florida law;
(c) Property value impacts on ad-
jacent property owners and
remedies to protect adjacent
property owners.
(d) The costs and potential fund-
ing sources for payments of
taking claims.
(e) Balancing market value los-
ses with market value gains
due to government action
and particularly, "whether
the specification of a particu-
lar statutory standard pro-
viding for the recapture by
the public or an increase in
fair market value caused by
imposition of a regulation or
the location of a publicly
funded infrastructure would
be appropriate, workable
and fair."
Aquatic Plant Control/Dredge
and Fill Permitting. The Gover-
nor also vetoed Senate Bill 662
which streamlined the aquatic plant
control permitting process and ex-
empted private docks and recrea-
tional docking facilities of local gov-
ernmental entities from dredge and
fill permitting requirements. The
Governor's veto message cited the
exemption as the reason for the
veto.
Cari L. Roth is a 1983 graduate
of the Florida State University Col-
lege of Law and is a shareholder in
the law firm of Messer, Vickers, Ca-
parello, Madsen, Lewis, Goldman &
Metz, P.A., in its Tallahassee office.
Ms. Roth currently serves as a mem-
ber of the Executive Council of the
Environmental and Land Use Law
Section of The Florida Bar.

continued ...






CAPITOL REPORT
from preceding page



Thanks!
Finally, several contributors to
the legislative report published in
the June 1993 issue of the Environ-
mental and Land Use Law Section
Reporter were not properly credited
for their contribution. The following
is a complete listing of these con-
tributors and their biographies.


Lawrence N. Curtin is a partner in
the law firm of Holland & Knight.
He received his J.D., with honors,
from the Florida State University Col-
lege of Law in 1976. He is the head
of the Environmental Practice Sec-
tion in Holland & Knight's Tallahas-
see office.


Casey Gluckman is a partner in the
Tallahassee law firm of Gluckman
& Gluckman and is of counsel with
the law firm of Cobb, Cole and Bell.
Her practice is primarily in the areas
of environmental, land use and
health care law. She served as a mem-
ber of ELMS III.


David Gluckman is a partner in the
Tallahassee law firm of Gluckman
and Gluckman. He received his BA
and JD degrees from the University
of Florida and has been a member
of The Florida Bar since 1966. He
was employed as deputy general coun-
sel by the Department of Environ-
mental Regulation from 1974 to
1976. He has lobbied the Florida Leg-
islature for over 17 years on behalf
of environmental organizations and
is presently a registered lobbyist for
the Florida Audubon Society, Save
the Manatee Club, Florida League of
Anglers, and the Trust for Public
Land.


Frank E. Matthews was born in
Troy, New York, January 5, 1956;
admitted to Florida Bar, 1981; ad-
mitted to New York Bar, 1983. He
was educated at the University of
Rochester (B.A., 1978) and the Uni-
versity of Miami School of Law (J.D.,
1981), and he is a partner in the Tal-
lahassee law firm of Hopping Boyd
Green & Sams. He works extensively
on wetland issues for mining, utility
and development interests in the Flor-
ida Legislature and with all federal,
state and regional agencies. He is cur-
rently the Chair of the Florida Cham-
ber of Commerce's Committee on
Natural Resources and Growth Man-
agement and is specially designated
by The Florida Bar in environ-
mental, administrative and govern-
mental practice. He has lectured
throughout Florida on wetland legis-
lation and regulations.



James F. Murley became executive di-
rector of 1000 Friends of Florida in
1987, a statewide growth manage-
ment advocacy organization. From
1983 to 1987, Mr. Murley served as
director of the Florida Department
of Community Affairs'Division of Re-
source Planning and Management,
where he had direct responsibility for
drafting and implementing the land-
mark 1985 Growth Management
Act. Mr. Murley is a member and
past chair of the Tallahassee/Leon
County Planning Commission, past
president of the Tallahassee Housing
Foundation, and is a member of the
State Chamber of Commerce Leader-
ship Florida Class IX (1990-91). He
served on Governor Chiles' Transi-
tion Team on Growth Management,
is a member of the Environmental
Lands Management Study Commit-
tee III, and has been nominated by
Governor Chiles to serve on the Capi-
tal Center Planning Commission.
Mr. Murley recently received The Na-
ture Conservancy's 1992 Conserva-
tion Colleague Award.


David L. Powell is a Tallahassee at-
torney and served as Executive Di-
rector of the third Environmental
Land Management Study Commit-
tee. He previously practiced land use
and environmental law with the Tal-
lahassee firm of Hopping Boyd Green
& Sams.
Irene Kennedy Quincey is the Deputy
General Counsel at the South Flor-
ida Water Management District and
has been working with the District
since 1978. She attended the Univer-
sity of Florida and in 1975, earning
her B.A., with high honors, in Politi-
cal Science. She earned her Juris Doc-
tor from the University of Florida in
1978. She is the current Chair of the
Environmental and Land Use Law
Section of The Florida Bar.
Lawrence E. Sellers, Jr., received his
J.D., with honors, from the Univer-
sity of Florida College of Law in
1979. He is a partner in the Tallahas-
see office of Holland & Knight. He is
a member of the Environmental and
Land Use Law Section of The Flor-
ida Bar.
Daniel H. Thompson was appointed
Assistant Secretary of the Florida De-
partment of Environmental Regula- ~.
tion by Secretary Virginia Wetherell
on March 3, 1993. He has been Gen-
eral Counsel to the Department since
August, 1986. Previously he was
Deputy General Counsel in charge of
Enforcement and Assistant General
Counsel for Groundwater and Drink-
ing Water Programs. During 1986
and 1987 he was also Adjunct Pro-
fessor of Law at Florida State Uni-
versity College of Law. Prior to 1982
he was an attorney with Legal Serv-
ices of North Florida, Inc., and Flor-
ida Legal Services, Inc. Mr. Thomp-
son received his B.A. from Yale Uni-
versity in 1970 and his J.D. with hon-
ors from Florida State University in
1974. He is a member of the Ex-
ecutive Council of the Environmental
and Land Use Law Section of The
Florida Bar.




ill


To advertise in The Florida Bar I
or The Florida Bar Journal, ca
904/561-5835.








Department of Community

p Affairs Update

by Terrell K. Arline


New Rules
The F.A.C. Rule 9J-5 revisions set
minimum criteria for the content of
local plans. The rules, which were
formally proposed in October, 1992,
include provisions that codify the De-
partment of Community Affairs'
"urban sprawl" policies. These were
challenged by a number of parties;
several parties have intervened on
the side of the Department. Negotia-
tions have led to notices of change
that have been published in the
FAW. Most of the challengers have
withdrawn their petitions. The hear-
ing is to commence in September,
1993.
In response to the ELMS III legis-
lation, the DCA is currently engaged
in a flurry of rulemaking activities.
These include rules establishing mini-
mum criteria for the intergovernmen-
tal coordination element; a schedule
Sfor the adoption of Evaluation and
Appraisal Reports (EARs); mini-
mum criteria for revised transporta-
tion elements; revisions to 9J-5's
definition of category 1 evacuation
routes, and to incorporate changes
for transportation concurrency excep-
tions and concurrency management
areas; amendments to 9J-11 involv-
ing procedures to amend com-
prehensive plans, procedures for chal-
lenging capital improvement pro-
jects, and dealing with procedures
relating to EAR submittal, suffi-
ciency review, extensions and dele-
gation of EAR review.
The Department is also currently
involved in consultation with the
Board of Regents to develop rules
that implement schedules and pro-
cedures for development and adop-
tion of campus master plans. A re-
search project is under way with
FDOT concerning protection of trans-
portation corridors and rights of
way.
Reports are being prepared on the
Areas of Critical State Concern with
an eye toward dedesignation. DRI
thresholds in urban central business
districts and regional activity cen-
ters are being revaluated. Forms for
DRI's that are consistent with an in


compliance comprehensive plan, and
rules regarding concurrent DRI/
plan amendments and uniform stan-
dards for DRI review are also being
developed. A report regarding revi-
sions to DRI guidelines and stan-
dards will follow.
In the coastal area, the Depart-
ment is establishing a countybased
process to set priorities for acquir-
ing coastal properties, and make
recommendations on coastal manage-
ment funding. In cooperation with
the Interagency Management Com-
mittee (IMC), the Department is
developing a strategy to enhance citi-
zen awareness of coastal manage-
ment programs, and is coming up
with rules to establish when the Ex-
ecutive Committee can act for the
IMC. Also in cooperation with the
IMC, the Department is developing
rules to resolve disputes regarding
spoil sites, and looking at a way to
encourage county-wide marina sit-
ing plans. In conjunction with the
DEP and the IMC, the Department
is creating a pilot coastal water qual-
ity improvement program.
A model stormwater management
program is being created with DEP.
The Department is also consulting
with the ACIR on the cost to local
governments to implement the
ELMS legislation. A uniform meth-
odology to assess affordable housing
needs is in the works. Revisions are
being made to the rules of Florida
Communities Trust to incorporate
changes to enabling legislation. 9J-2
is being amended in the area of ar-
cheological and historical resources
policies. Finally, the DCA is work-
ing with the Governor's office to
come up with legislation to create
growth management provisions in
the state comprehensive plan.
In the Keys, Monroe County
adopted a plan for review by the De-
partment, which contained a provi-
sion that required state funding as
a condition of adoption. This provi-
sion, with others, will be found out
of compliance in an upcoming rule
adopted pursuant to Chapter 380.
Polk County is currently the focus


of a Department initiated rule by
the Administration Commission to
set land use intensities and densi-
ties for the Green Swamp Area of
Critical State Concern. It is expected
that this rule will be challenged by
the county and affected property own-
ers.

Case Decisions
Department of Community Affairs
v. Walton County, ER FALR '92:208,
FALR (Administration Com-
mission 1992). Walton County
adopted a comprehensive plan and
submitted it to the Department for
review in accordance with F.S.
163.3184(7). The Department deter-
mined that the plan was not in com-
pliance with state law, and for-
warded the matter to DOAH. The
Hearing Officer found the plan to be
not in compliance and recommended
that a final order be entered by the
Administration Commission to that
effect. In 32 separate paragraphs,
the Hearing Officer made specific con-
clusions that the plan was inconsis-
tent with the Act, the State Com-
prehensive Plan (F.S. 187.201), the
applicable regional policy plan and
the Rules of the Department (Ch. 9J-
5, F.A.C.). He concluded that a not-
for-profit organization that had mem-
bers residing within the boundaries
of the local government, and submit-
ted written objections regarding the
plan during the appropriate review
period has standing to intervene in
accordance with F.S. 163.3184(10).
Among the features of the plan that
the Hearing Officer determined not
in compliance with the Act were that
the plan failed to discourage urban
sprawl because it allocated at least
44 times more land for urban devel-
opment than would be needed in
accordance with population projec-
tions that were part of the plan.
The coastal management element
of the plan was determined deficient
because it did not define the coastal
high hazard area, failed to restrict
development activities where they
would damage or destroy coastal re-
sources, included no policies to guide
continued ...







DCA UPDATE


from preceding page


decisions with respect to protection
of coastal habitats and resources, con-
tained no principals for protection
of human life against the effects of
natural disasters, and contained no
policies to protect coastal dune sys-
tems.
The conservation element of the
plan was found deficient because it
did not include an adequate drain-
age level of service standard, relied
upon septic tanks in areas where
available data showed that the soils
were improper for septic tank sys-
tems, and failed to address correct-
ing existing sanitary sewer facility
deficiencies.
The Administration Commission
adopted the findings of fact and con-
clusions of law in the Recommended
Order. The parties, including the De-
partment, Walton County and some
of the intervenors, negotiated lan-
guage for remedial amendments
that the County would need to adopt
in order to bring the plan into com-
pliance. The Commission did not im-
mediately impose sanctions against
the County in the form of withhold-
ing state revenues, but it did specify
that the County would need to expe-
ditiously adopt remedial amend-
ments necessary to bring the plan
into compliance in accordance with
a schedule specified in the final or-
der.
The County is in the process of
adopting remedial amendments. In
the meantime, one of the Inter-
venors, St. Joe Paper Company, has
taken an appeal of the final order
to the First District Court of Appeal.

School Board of Monroe County v.
Chiles, ER FALR '93:011 So. 2d
(Fla. 3rd DCA 1993). The
Monroe County School Board took
steps to develop a new school facil-
ity on Big Pine Key, within the
prime habitat area of the en-
dangered Florida Key Deer. Big
Pine Key lies in the Florida Keys
Area of Critical State Concern. F.S.
380.0552. The Department appealed
the County's action that authorized
construction of the school to the Flor-
ida Land and Water Adjudicatory
Commission in accordance with F.S.
380.07. The School Board filed a pe-


tition for writ of prohibition in the
Third District Court of Appeal, con-
tending that a school facility did not
constitute development within the
meaning of F.S. Ch. 380. The court
denied prohibition, disagreeing with
the School Board's contention that
development of a school is not sub-
ject to the jurisdiction of FLWAC. A
formal hearing has now been con-
ducted at DOAH. A recommended or-
der has not been entered.
University Park Neighborhood
Association, Inc. v. Department of
Community Affairs, ER FALR
'93:025 FALR (Department
of Community Affairs 1993). The
City of Gainesville adopted its local
comprehensive plan and submitted
it to the Department for review in
accordance with F.S. 163.3184(7).
The Department determined that
the plan was in compliance with the
Act. Residents of the City challenged
that determination, contending that
provisions of the plan that allowed
increased development densities
within an area of the City known
as "the student ghetto" were not sup-
ported by adequate data and analy-
sis. The Hearing Officer concluded
that the petitioners failed to estab-
lish that the provisions were incon-
sistent with the Act. In his findings
of fact he cited numerous reasons
why the increased densities actually
promoted many good planning goals.
The Department adopted the Recom-
mended Order.

Lee County v. Royal Pelican Devel-
opment, Inc., ER FALR 93:026 (Fla.
2d DCA 1993). A vested DRI devel-
oper initiated an action in Circuit
Court in Lee County regarding a
change in development plans that
would allow development of a ma-
rina facility. The Department con-
tended that the proposed change in
the development was a substantial
deviation that would need to un-
dergo further review by the regional
planning council and the Depart-
ment. The Circuit Court granted sum-
mary judgment, concluding that the
marina facility was not a devel-
opment within the meaning of F.S.
Ch. 380. The District Court re-
versed, concluding that a marina
was development within the mean-
ing of the statute, and that there
were factual issues remaining as to
whether the marina was entitled to
vested status.


Edgewater Beach Owners Associa-
tion, Inc. v. Walton County, ER
FALR '93:049, FALR (Flor-
ida Land and Water Adjudicatory
Commission 1993). A DRI developers
sought to modify a development or-V
der that had an expiration date that
had expired. The development had
been only partially completed. The
County approved the modification
finding no new impacts of the devel-
opment that had not been addressed
in the development order. Neither
the Department nor the regional
planning council appealed. An
owner's association within the built-
out portion of the development
sought to appeal. The County moved
to dismiss. The Commission deter-
mined that the Association was not
among the parties who are entitled
to appeal a DRI development order
under F.S. 380.07, and dismissed
the appeal. The Association has
taken an appeal to the First Dis-
trict, and initial briefs were filed on
June 23, 1993.
Builders Association v. Tampa
Bay Regional Planning Council, ER
FALR '93-055 (DOAH 1993). The
Tampa Bay Regional Planning Coun-
cil adopted its comprehensive re-
gional policy plan as a rule. The plan y
included provisions that set level of
service standards on regional road-
ways, and provisions indicating that
it would review proposed DRI devel-
opments based upon those stan-
dards. Petitioners challenged the
level of service standards, contend-
ing that only local governments
have the authority to set binding
level of service standards on roads
within their boundaries, acting in co-
ordination with the Florida Depart-
ment of Transportation with regard
to state roads. The Hearing Officer
concluded that the rules did not con-
stitute an invalid exercise of author-
ity because they were binding only
with regard to the Council's review
of proposed DRI development. He con-
cluded that an RPC's setting level
of service standards was not binding
because ultimately, it would be up
to local governments and perhaps
the Florida Land and Water Adjudi-
catory Commission to decide what
level of service standards would be
applied.
Department of Community Affairs
v. Clark, final order No. LW-943-
015, issued April 7, 1993. The De-







apartment appealed a permit to con-
struct a dock in the Florida Keys in
waters which did not provide con-
tinuous access to open water of at
least 4 feet. The hearing officer
ruled that Monroe County's interpre-
tation of the land use restriction at
issue controlled and held for the prop-
erty owner. FLWAC reversed, con-
cluding that in an area of critical
state concern, it is the interpreta-
tion of the Department which should
receive deference. FLWAC deter-
mined that if there was a marked


channel from the dock to open
water, the permit could issue not
withstanding the fact that there was

Terrell K. Arline graduated with
a joint degree in law and urban and
regional planning from the Univer-
sity of Florida in 1980. In June of
1992, he closed his office in Palm
Beach Gardens, where he had prac-
ticed public interest environmental
and land use law, and moved to Tal-


not 4 feet of continuous open water
from the dock to open water. This
case is now on appeal.

lahassee to work for the Department
of Community Affairs as an assistant
general counsel. His efforts are now
focused on appeals of development or-
ders and comprehensive planning in
the Green Swamp Area of Critical
State Concern.


Florida Caselow Update


by Kristin Conroy
Hopping Boyd Green & Sams


Dimmitt Chevrolet, Inc. v. South-
eastern Fidelity Insurance
Corp., So.2d (Fla. 1993).
Dimmitt is probably the most con-
troversial case to be decided since
the last caselaw update, and it will
likely have a long-lasting effect on
Florida environmental law. The Flor-
ida Supreme Court decided in Dim-
mitt that the standard pollution ex-
clusion clause in Comprehensive
General Liability ("CGL") insurance
policies precludes coverage for envi-
ronmental contamination that oc-
curs slowly over a long period of
time.
Dimmitt Chevrolet, Inc. and
Larry Dimmitt Cadillac, Inc. ("Dim-
mitt") were named as potentially re-
sponsible parties under the
Comprehensive Environmental Re-
sponse, Compensation and Liability
Act ("CERCLA"), 42 U.S.C. 9607,
et seq., for selling waste oil to Peak
Oil Company ("Peak"), whose opera-
tion became a Superfund Site. South-
eastern Fidelity Insurance Corpora-
tion ("Southeastern") provided CGL
insurance coverage to Dimmitt dur-
ing the time Dimmitt sold the waste
oil to Peak. The policy covered prop-
erty damage for occurrences, but
excluded coverage for:

Bodily injury or property damage aris-
ing out of the discharge, dispersal, re-
lease or escape of smoke, vapors, soot,
fumes, acids, alkalis, toxic chemicals, liq-
uids or gases, waste materials into
or upon land, the atmosphere or any
water course or body of water; but this


exclusion does not apply if such dis-
charge, dispersal, release or escape is
sudden and accidental. ...

Southeastern filed a declaratory
judgment action seeking a declaration
that the exclusion clause precludes
coverage of pollution which occurred
over several years because it was
not "sudden and accidental." The cov-
erage issue turned on the meaning
of the term "sudden and accidental"
within the pollution exclusion clause
of Dimmitt's policy, and whether the
policy would cover slow-leaking and
leaching pollution occurrences.
Dimmitt argued that "sudden and
accidental" is ambiguous because it
is subject to multiple definitions and
since ambiguous terms should be con-
strued in favor of the insured, the
policy should be construed in his
favor. The insurance company con-
tended that the clause excludes cov-
erage for all pollution except when
the discharge occurs abruptly or ac-
cidentally.
The policy language at issue has
been brought before state and fed-
eral courts across the country. The
Florida Supreme Court recognized
that supreme courts of Colorado,
Georgia, West Virginia, and Wiscon-
sin have found the pollution exclu-
sion clause to be ambiguous and cov-
erage to be allowed; while the su-
preme courts of Massachusetts, Mic-
higan, North Carolina and Ohio
have held that the term "sudden and
accidental" means abrupt and unin-


tended such that pollution over a
long period of time is not covered.
The Florida Supreme Court rea-
soned that the term "sudden" does
not stand alone in the exclusion
clause and if one construed "sudden"
as meaning unintended or unex-
pected, the phrase "sudden and
accidental" would be entirely redun-
dant. Therefore, the Court rejected
the proposition that "sudden" is am-
biguous and held that the pollution
damage was not within the scope of
Southeastern's policy.

Mostoufi v. Presto Food Stores,
Inc., So.2d _, 18 FLW D1018
(Fla. 2d DCA 1993).
Fred Mostoufi, the owner and op-
erator of a convenience store that
sells gasoline, found petroleum con-
tamination on his real property
caused by an underground storage
tank which had been abandoned by
a previous owner and operator of the
property. Mostoufi brought a two-
count complaint against the former
owner and operator, Presto Food
Stores, Inc.
Mostoufi alleged in his complaint
strict liability under Section
376.313, Florida Statutes, and com-
mon law negligence using section
376.313 as a statutory standard of
care which was allegedly breached.
The complaint alleged that
Mostoufi's damages were that the
property value had been reduced
and that he has been ordered to in-
cur significant costs and expense in
continued ...







FLORIDA CASELAW UPDATE
from preceding page


rehabilitating the property. The
Court recognized that Mostoufi is un-
der no obligation to take any reme-
dial action pursuant to Sunshine Jr.
Stores. Inc. v. State Department of
Environmental Regulation, 556
So.2d 1177 (Fla. 1st DCA), rev. de-
nied, 564 So.2d 1085 (Fla. 1990).
The trial court dismissed the com-
plaint for failure to state a cause of
action for compensable damages.
The second district court of appeal
affirmed the trial court's dismissal
on the basis of caveat emptor and
the limited scope of section 376.313,
Florida Statutes.
The Court found that the doctrine
of caveat emptor set forth in Futura
Realty v. Lone Star Bldg. Centers,
Inc., 578 So.2d 263 (Fla. 3d DCA),
rev. denied, 591 So.2d 181 (Fla.
1991), protects the seller of commer-
cial property from any liability to
the purchaser of that property for
any condition of that property that
preexists the sale. Moreover, the
court declined to interpret section
376.313(3), F.S., as providing a "pri-
vate right of action for damages
from a pollutant discharge uncon-
nected with the cleanup or removal
of the discharge ." Since Mostoufi
failed to allege damages connected
with the cleanup or removal of the
discharge, the Court agreed that the
complaint failed to state a cause of
action for compensable damages
against appellee.
This case contains some language
which may be interpreted more
broadly as prohibiting any private
right of action under section
376.313, Florida Statutes. The
Court states: "Because the statute
is framed so as not to 'prohibit' bring-
ing a cause, we conclude we should
not interpret the statute as 'creat-
ing' a new cause of action that did
not theretofore exist. It seems clear
to us that the intent of the statute
to us that the intent of the statute
is to insure that it is not interpreted
as preempting any private rights
that were already in existence." 18
FLW at 1020. Nevertheless, it can
be argued that the holding is lim-
ited to the facts of this case, that
where the Plaintiff has not incurred
any clean-up costs and will not be


required to incur such costs in the
future, no private right of action ex-
ists, and that a diminution in value
claim may be barred by caveat emp-
tor.
Appellant filed a Motion for Re-
hearing on May 3, 1993. The Second
DCA denied the motion on June 7,
1993. Appellant has filed a Notice
to Invoke Discretionary Jurisdiction
on July 7, 1993 in the Florida Su-
preme Court, which is presently
pending.

Davey Compressor Co. v. City of
Delray Beach, So.2d 18
FLW D202 (Fla. 4th DCA 1993).
The City of Delray Beach discov-
ered high levels of toxic solvents in
the groundwater beneath its well-
field used for supplying potable
water to residents. The City sued
Davey Compressor and other defen-
dants upon statutory and common
law grounds and sought damages for
its corrective action costs, which in-
cluded the purchase of potable water
and the construction of an interim
and permanent treatment system.
The jury awarded $3,097,488.00 in
past damages and $5,600,000.00 in
future damages against Davey Com-
pressor.
On appeal, Davey Compressor
argued that the damages cannot ex-
ceed the value of the City's property.
The Fourth District Court of Appeal
acknowledged the general rule that
damages for injury to real property
cannot exceed the value of the prop-
erty, citing Keyes Co. v. Shea, 372
So.2d 493, 496 (Fla. 4th DCA 1979).
The Court found, however, that seek-
ing damages for response costs and
related expenses is not seeking dam-
ages for injury to real property, but
rather for the injury to its right to
the use of the groundwater beneath
its real property. In a nuisance ac-
tion, the principal elements of dam-
ages are the value attached to the
use or enjoyment of which one has
been deprived, as well as any rea-
sonable expenses which one incurs
on account of the nuisance. The
Court found that the record supports
the City's claim for damages in-

curred to abate the nuisance as well
as for damages resulting from appel-
lant's negligence, and therefore, the
amount awarded for past damages
was proper.
The court found, however, that
since the City's consumptive use per-


mit for the wellfield expired in 1997
and, since the City could not estab-
lish its legal interest in the ground-
water beyond that time, the City
could not recover future damages&
past the expiration date. The CourtV
affirmed the award of past damages,
but reversed the award of future dam-
ages and remanded for a new trial
to determine the amounts of the
City's future damages up to the ex-
piration date of the consumptive use
permit for the well field.

Board of Commissioners for Lee
County, Florida v. Royal Pelican
Development, Inc., So.2d _,
18 FLW D535 (Fla. 2d DCA 1993).
Royal Pelican Development, Inc.,
Casa Marina Development, and Star-
dial Investments are the owners and
developers of Bay Beach, a residen-
tial waterfront community in Lee
County. In 1974, the developers sub-
mitted an application for a "binding
letter of vested rights" under Sec-
tion 380.06, Florida Statutes. The Di-
vision of State Planning issued a
letter designating the project a DRI,
but stating that based upon the de-
velopment plans, the developers
would "not be required to comply
with the provisions of Section (
380.06, Florida Statutes."
In 1989, the developers requested
an amendment to the final develop-
ment order to allow construction of
an additional 79 wetslips. The addi-
tional wetslips push the port facility
over the 150 wetslip threshold to be-
come a DRI. The County, concerned
that the Department of Community
Affairs would need to review the
amendments, ceased issuing per-
mits and placed a stop work order
on the issued permit. The develop-
ers sought a declaration of their
rights with the County and the De-
partment intervened.
The lower court granted the devel-
opers' motion for partial summary
judgment, finding that the "pro-
posed wetslips do not constitute a
'development'" under Section
380.04, Florida Statutes, but is in-
stead a marina.
The appellate court disagreed,
and stated "once a design exceeds
the numerical limitation found in Sec-
tion 380.0651(3)(e), a marina is a 'de-
velopment' subject to DRI review."
18 FLW at D536. The Court went
on to find that there still exists an
issue of fact as to whether the De-







apartment's 1975 binding letter
sanctioned the magnitude of wetslip
construction now asserted by the de-
Svelopers. The Court reversed the
Slower court and remanded the mat-
ter for an evidentiary hearing on
that issue.

State of Florida v. Leavins,
So.2d ER-FALR 93:010 (Fla. 1st
DCA 1993).
In 1989, the Florida Legislature
passed two bills relating to oyster
harvesting. Chapter 89-432 is a spe-
cial act relating to Franklin County
which prohibits a person from oper-
ating a mechanized dredge or rake
in Apalachicola Bay to remove oys-
ters or clams. Chapter 89-175 im-
posed other restrictions, including
the imposition of a harvesting li-
cense and a surcharge tax, the re-
peal of the exemption of leased beds
from the closed season, and new li-
ability for abandoning or vacating a
lease.
Several holders of perpetual oys-
ter harvesting leases for submerged
lands in Apalachicola Bay chal-
lenged the statutes as unconstitu-
tional. The trial court found that the
r statutes are unconstitutional and
the First District Court of Appeal
affirmed the decision of the trial
court's order.
The Court found that the special
act violates the constitutional prohi-
bition against impairing the obliga-
tion of contract and that it is an un-
constitutional special law pertaining
to regulation of occupations regu-
lated by the state. The Court also
found Chapter 89-175 unconstitu-
tional as violative of the single
subject requirement and as violative
of the constitutional prohibition
against impairing contracts.

Coto v. Renfrow, So.2d _
18 FLW D460 (Fla. 3rd DCA 1993).
The Third District Court of Appeal
reversed the determination of the
trial court that the defendants had
illegally cut mangroves on a lot
owned by defendants at Mashta
Point, Key Biscayne.
The Department of Environ-
mental Resources of Metropolitan
Dade County brought suit against
^ defendants for cutting mangroves in
violation of Dade County Code 24-
58(1) and 24-58.16(1992). The Code
provides that the cutting or trim-
ming of mangroves, without a per-


mit, in "coastal wetlands" or "coastal
band community" is prohibited.
A "coastal wetland" is defined as
an area where plant life is domi-
nated by one or more of a number
of enumerated vegetational species
including white, red and black man-
groves and/or which is subject to
specified periods of inundation. A
coastal band community is defined
as a mangrove community located
near certain waters whose dominant
floral constituent is mature red man-
groves.
The trial court found that the de-
fendants' lot was "considered to be"
both coastal wetland and a coastal
band community, but that Dade
County had failed to prove that the
lot was under either designation. In
fact, the trial court found that there
was evidence to the contrary. The


trial court nevertheless entered a
money judgment in favor of the De-
partment in the amount of
$10,000.00.
The appellate court found that the
trial court's judgment was wholly in-
consistent with the findings of fact.
Quoting Holland v. Gross, 89 So.2d
255, 258 (Fla. 1956), which holds
that the appellate court must re-
verse if the trial court has misap-
plied the law to established facts,
the appellate court reversed the de-
cision with directions to dismiss the
amended complaint on remand.

Hubschman v. Board of County
Commissioners of Collier
County, Florida_ So.2d _, 15
FALR 503 (Fla. 2d DCA 1992). The
Board of County Commissioners ex-
continued...


Environmental and Land Use Law Section

CLE Seminars and Workshops
1993-94

October 11, 1993
Workshop, "Environmental Issues in Land Transactions" (Tampa)

November 12-13, 1993
Seminar, "Current Issues in Land Use, the Environment and Local
Government: A User's Guide" (Tampa)

January 14, 1994
Workshop, "Use of Expert Witnesses in Administrative Hearings"
(Orlando)

February 25-26, 1994
Advanced Seminar, "Environmental Audits and Due Diligence" (Ft.
Lauderdale)

March 1994
Workshop, "Public Interest Issues"

April 22-23, 1994
Seminar, "Everything You Always Wanted to Know About Environ-
mental Permitting" (Sarasota)

June 23, 1994
Workshop, "Land Use and Growth Management Issues" (Orlando)

August 18-20,1994
Seminar, "Annual ELULS Update and Section Annual Meeting" (Ame-
lia Island)

Watch CLE pages of The Florida Bar News for additional informa-
tion.







FLORIDA CASELAW UPDATE
from preceding page



ercised its power of eminent domain
to take 1.2 acres of a 10-acre parcel
of property belonging to appellants
in order to place effluent tanks
thereon. In the condemnation hear-
ing, the trial court instructed the
jury that "mere noise, fumes, and
aesthetic losses are not compensa-
ble under Florida law unless the
owner is substantially ousted and de-
prived of all beneficial use of its re-
maining land." Based upon that in-
struction, the jury awarded appel-
lants $70,000.00 as full compensa-
tion for the taking. The property own-
ers appealed, seeking compensation
of approximately $300,000.00. The
owners argued that the jury in-
struction wrongfully limited recover-
able damages.
The Second District Court of Ap-
peal found the jury instruction to be
erroneous. The Court followed Lee
County v. Exchange Nat. Bank of
Tampa, 417 So.2d 268 (Fla. 2d DCA
1982), stating that recoverable dam-
ages to the remainder of the prop-
erty include all diminution is value
of the remaining land which can be
attributed to the use of or activity
upon the land which has been taken.
Sufficient evidence existed that the
remaining property would be dimin-
ished in value because of aesthetic
loss. The Court reversed the lower
court's opinion and remanded the
case for a new trial on full compen-
sation.

City of Sunrise v. South Florida
Water Management District, _
So.2d _, (Fla. 4th DCA 1993). The
City of Sunrise currently provides
potable water from the Biscayne aqui-
fer to the area of unincorporated
Broward County that includes In-
dian Trace. Indian Trace applied to
the district for a water use permit
to obtain water from a different
source, the Floridan aquifer. The
City opposed Indian Trace's applica-
tion and petitioned the district for
formal proceedings. Both the district
and Indian Trace challenged the
City's standing and after argument,
the Hearing Officer concluded that
the City lacked standing to chal-
lenge the permit issuance.
The City argues that it has stand-


ing because the proposed permit
would result in duplication of facili-
ties and services and increased rates
to all customers. The Fourth District
Court of Appeal analyzed the ele-
ments of standing required under
Chapter 120, Florida Statutes, and
found that the City of Sunrise does
not have standing to challenge the
issuance of the permit in this arena.
Standing requires a showing that
a substantial injury of sufficient im-
mediacy exists and also that the
proceeding is designed to protect
against such injury. See Town of
Palm Beach v. Department of Natu-
ral Resources, 577 So. 2d 1383 (Fla.
4th DCA 1991). The Court found
that neither element of standing
was met: The City's expenses due
to economic competition does not sa-
tisfy the immediacy requirement;
and competitive economic considera-
tions are not within the zone of
protection under Chapter 373, Flor-
ida Statutes. The cost to the cus-
tomer is not a proper basis for
granting standing in this permitting
process. The Court noted, however,
that the circuit court has jurisdiction
to hear the City's arguments of du-
plication of facilities and economic
injury to the public.

Eastpointe Condominium Assoc.
v. Palm Beach Isles Associates,
SSo.2d 18 FLW D964 (Fla.
4th DCA 1993). The owners of cer-
tain wetlands entered into a stipula-
tion with the Florida Department of
Environmental Regulation and the
Trustee of the Internal Improve-
ment Trust Fund that the state
would not be involved in the regula-
tion of the filling of those wetlands
and that it would abstain in favor
of the U.S. Corps of Engineers.
An adjoining landowner inter-
vened in the trial court's declaratory
relief action and appealed the final
consent judgment entered pursuant
to the stipulation. The Fourth Dis-
trict Court of Appeal explored
whether the state had the authority
to divest itself of its regulatory
power over a certain piece of prop-
erty. The Court cited Graham v. Es-
tuary Properties, Inc., 399 So.2d
1374 (Fla.), cert. denied sub non. Tay-
lor v. Graham, 454 U.S. 1083(1981),
for the proposition that the owner
of land has no absolute right to
change the essential natural charac-
ter of land so as to use it for a pur-


pose for which it was unsuited in its
natural state and which injures the
rights of others. 399 So.2d at 1382.
The stipulation entered into be-
tween the owners and the state was
viewed by the Court as a potentialV
precedent for future owners to avoid
compliance with environmental regu-
lations which protect the rights of
the public. If the rights of the public
are implicated, the State may not
be able to stipulate to abstain from
the exercise of its regulatory author-
ity. The Court held that it could not
assist with an avoidance of environ-
mental compliance and reversed and
remanded the case to determine
whether the property owners' right
to beneficial use is subject to statu-
tory environmental requirements
governing the development of wet-
lands.

In Re: Petition for Declaratory
Statement, SunBank/West Flor-
ida, 15 FALR 2578 (Department of
Environmental Regulation 1993).
On March 16, 1993, the State of Flor-
ida Department of Environmental
Regulation ("the Department") re-
ceived a Petition for Declaratory
Statement from SunBank/West Flor-
ida (hereinafter "SunBank"). Sun-
Bank requested a declaration that
property which is eligible for the
state-administered cleanup option un-
der the ATRP, and which has been
acquired by SunBank through fore-
closure proceedings, will continue to
be eligible for state-administered
cleanup if it is sold, at the earliest
possible time, to a small business
or not-for-profit corporation and all
other conditions for eligibility under
the ATRP are met.
Chapter 376, Florida Statutes, is
silent on the issue of whether sites
previously eligible for the state-
administered cleanup option which
have been entered into the reimburse-
ment option following a title trans-
fer to an owner who does not qualify
as a small business or not-for-profit
corporation may be switched back to
the state-administered cleanup op-
tion if title is again transferred, but
this time to an owner who does qual-
ify as a small business or not-for-
profit corporation. This silence cre-
ated an ambiguity in the statute
which the Department has at- y
tempted to clarify by interpreting
the statute in a manner consistent
with the legislative intent stated in







Section 376.3071(12)(c)1., F.S.,
which provides that:

It is the intent of the Legislature that
those responsible persons who possess
adequate financial ability should con-
duct site rehabilitation and seek reim-
bursement pursuant to this subsection,
rather than allow the state to conduct
the cleanup pursuant to subsection (9).
To achieve this goal the department
shall require owners or operators of all
sites which were granted state con-
ducted cleanup eligibility to complete
site restoration and seek reimbursement
pursuant to this subsection unless the
responsible person certifies to the depart-
ment in writing that he qualifies as a
small business under s. 288.703(1) or a
corporation not for profit under chapter


617,. or for good cause shown. (Emphasis
added.)
The Department reasoned that
the legislature intended to aid small
businesses and not for profit corpo-
rations in their cleanup efforts by
giving them the option to allow the
state to conduct any necessary
cleanup, rather than financing their
own cleanup efforts and being reim-
bursed by the state at some later
time. The Department therefore
granted SunBank's request for a dec-
laration that the property it has
acquired through foreclosure will con-
tinue to be eligible for the state-
administered cleanup option under
the ATRP, if it is sold, at the earliest


possible time, to a small business
or not-for-profit corporation and all
other conditions for ATRP eligibility
are met.

Kristin Conroy is an Associate
with Hopping Boyd Green & Sams
in Tallahassee, Florida. She received
her B.A. in English in 1988 from the
University of Notre Dame and her
J.D. in 1991 from Florida State Uni-
versity, where she was an editor on
the Law Review. Ms. Conroy prac-
tices mainly in the areas of solid and
hazardous waste permitting and en-
forcement.


District Updates



South Florida Water Management District
by Cecile I. Ross


City of Sunrise v. South Florida
Water Management District
and Indian Trace Community
Development District
In City of Sunrise v. South Florida
Water Management District and In-
dian Trace Community Development
District, the Fourth District Court
of Appeal denied standing to the
City of Sunrise ("Sunrise") to third
party challenge issuance of a con-
sumptive use permit ("permit"). The
Court affirmed the Final Order of
the District by applying the two
prong standing test for administra-
tive proceedings set forth in Town
of Palm Beach v. Department of Natu-
ral Resources, 577 So. 2d 1383 (Fla.
4th DCA 1991), which requires a
showing of a substantial injury of
sufficient immediacy which the ad-
ministrative proceeding is designed
to protect. This test was first clearly
delineated for state environmental
permit administrative challenges in
Agrico Chemical Company v. Depart-
ment of Environmental Regulation,
406 So. 2d 478 (Fla. 2d DCA 1981).
Sunrise timely filed a petition for
a Section 120.57(1) administrative
hearing challenging issuance of the
permit based on alleged economic in-
juries it would incur due to duplica-
tion of water treatment and trans-


mission facilities and loss of a
customer base. Indian Trace, the per-
mit applicant, has a contract to buy
water from Sunrise, which it, in
turn, distributed to Indian Trace cus-
tomers. Indian Trace intended to
terminate the Sunrise contract and
to begin producing and treating its
own raw water for distribution pur-
suant to the permit. Upon motion
by the South Florida Water Man-
agement District, the Hearing Offi-
cer dismissed the petition based on
lack of a substantial interest within
the "zone of interest" of Chapter 373,
Fla. Stat., the authorizing statute
for consumptive use permitting.
The Fourth District held that Sun-
rise failed to satisfy either prong of
the standing test. First, it found that
the economic losses alleged by Sun-
rise were not of sufficient immedi-
acy to achieve standing. Second, and
most significantly, the Court held
that an environmental or water re-
source related injury must be al-
leged to obtain standing to challenge
a permit proposed under Chapter
373, Fla. Stat. Allegations of rising
costs of water to Sunrise's custom-
ers and economic waste due to
duplication of water treatment facil-
ities were found to be irrelevant to
the consumptive use permitting pro-


cess. The Court did recognize,
however, that such injuries are re-
parable through circuit court ac-
tions.
On May 12, 1993, Sunrise filed a
motion for the Supreme Court of Flor-
ida to accept discretionary
jurisdiction based on an alleged con-
flict with Osceola County v. St.
Johns River Water Management Dis-
trict, 486 So. 2d 616 (Fla. 5th DCA
1986). At the time this article was
submitted, the parties had filed
jurisdictional briefs on this issue.


St. Johns River
Water
Management
District

by Eric T. Olsen

In July of 1991, the District
amended its rules regulating con-
sumptive uses of water, chapter 40C-
2, F.A.C., to require all consumptive
users who were issued permits prior
to that date to measure water
withdrawals using either a totaliz-
ing flow meter or a pre-approved al-
ternative method when their permit
continued...







DISTRICT UPDATES
from preceding page


was renewed or by January 1, 1994,
whichever occurred sooner. Many of
these permittees, predominantly
those from the agriculture commu-
nity, felt that these water measur-
ing requirements were unreasonable
and overly burdensome. In response
to these concerns, the Governing
Board established a task force,
known as the Metering Technical Ad-
visory Committee, to evaluate the
cost and effectiveness of using me-
tering and other methods to meas-
ure water use.
The Metering Technical Advisory
Committee issued a report to the Gov-
erning Board regarding the cost and
effectiveness of various water use
measuring methods. Based upon
this report, and input from the Dis-
trict's Agricultural Advisory Commit-
tee, District staff, and the public, the
Governing Board, in January of
1993, adopted several revisions to
Chapter 40C-2 regarding the require-
ments to measure consumptive use
withdrawals.
The revised rule requires all per-
sons issued consumptive use per-
mits after January 19, 1993, to in-
stall totalizing flow meters on all
withdrawal points prior to begin-


ning the permitted use. However, a
person issued a consumptive use per-
mit after January 19, 1993, can use
an alternative method for measur-
ing water withdrawal if that person
can demonstrate that it is not feasi-
ble to use a flow meter, or if the
District determines that flow meters
are inappropriate for measuring the
withdrawal. Persons issued indi-
vidual consumptive use permits
prior to July 23, 1991, must, begin-
ning March 1, 1993, measure the
quantity of water used by either in-
stalling totalizing flow meters or im-
plementing an alternative for meas-
uring withdrawal.
If an individual consumptive use
permit is modified after July 23,
1991, to add withdrawal points,
change withdrawal points, or in-
crease allocation, totalizing flow me-
ters must be installed to measure
any proposed uses prior to beginning
such use. However, if a permitted
user seeks only an increase in the
allocated amount from an existing
withdrawal point, the District may
authorize the continued use of an
alternative method to measure flow
provided the applicant demonstrates
that the alternative being used is
verifiable and 90 percent accurate.
Additionally, if an applicant demon-
strates that it is not feasible to use
a flow meter to measure the new or
modified withdrawals, the District


Drinking doesn't help you cope; it just makes you think you do.
Florida Lawyers Assistance
800/282-8981






This newsletter is prepared and published by the Environmental and Land Use Law
Section of The Florida Bar.
Irene Kennedy Quincey, West Palm Beach . . .... . Chair
Douglas M. Halsey, Miami ........ . . . . Chair-elect
David S. Dee, Tallahassee ........ . . . ... Secretary
Mary F. Smallwood, Tallahassee ......... . ... ... Treasurer
Richard Hamann, Gainesville ............ . .. Co-editor
Robert D. Fingar, Tallahassee ....... . . . Co-editor
Lynn Brady, Tallahassee ....... . . .... ..... Production Artist
Statements or expressions of opinion or comments appearing herein are those of the
contributors and not of The Florida Bar or the Section.


may approve the use of an alterna-
tive method for measuring flow.
The revised rule delineates a spe-
cial area within the District consist-
ing primarily of Southeasterrb
Putnam County, Southwestern St(
Johns County, and Western Flagler
and Volusia Counties which has ex-
perienced past water supply
problems. Within this delineated spe-
cial area, all applicants for proposed
consumptive uses must install total-
izing flow meters prior to beginning
the permitted use. The revised rule
states that the District will provide
totalizing flow meters to consump-
tive users in this area holding indi-
vidual consumptive use permits is-
sued prior to July 23, 1991. All per-
mitted users with individual permits
issued prior to this date must install
totalizing flow meters on all with-
drawal points within 90 days of the
date the District provides the meter.
In addition to revising its rules re-
garding the measuring require-
ments for consumptive use with-
drawals, the District amended its
stormwater management systems
rules, Chapter 40C-42, F.A.C., in
March of 1993 to address storm-
water treatment in highly perme-
able soils. This stormwater manage-
ment system rule amendment was I
based upon the District's observa-
tion that, in highly permeable soils,
less retention volume is required to
adequately treat stormwater runoff.
Thus, this rule amendment allows
for reduced stormwater retention
storage volume when soil conditions
provide for significant percolation.


Cecile Ross is an attorney with the
South Florida Water Management
District working primarily in water
use permitting. She received her B.S.
degree in Biology from Northeastern
University in 1985 and her J.D. de-
gree from Florida State University
in 1989.

Eric T. Olsen is an attorney with the
St. Johns River Water Management
District concentrating in the areas of
regulatory litigation and rulemak-
ing. He received his B.A. from
Clemson University in 1986, and his
J.D., with honors, from the Univer-
sity of Florida College of Law in
1989.









Federql C .sel.w Up.dat


by C. Robin Hall and George F. Gramling III


U.S. v. Goldsmith, [35 ERC 2125]
(11th Cir. 1992). To incur criminal
liability under the Resource Conser-
vation and Recovery Act, a defen-
dant need not know the exact iden-
tity of the chemicals disposed of, but
only that the chemicals have po-
tential to be harmful to others or
the environment.
The defendant appealed his con-
viction under RCRA for transporting
hazardous wastes to unpermitted fa-
cilities and storing hazardous
wastes without a permit based on a
jury charge which did not require
the government to prove he had spe-
cific knowledge of the chemicals
disposed of or that they had been
defined as "hazardous wastes" by
EPA. The court held that the gov-
ernment need only prove that the
defendant had knowledge of the "gen-
eral hazardous character" of the
r chemical, citing U.S. v. Dee, 912
F.2d at 745 [31 ERC 1953] (4th Cir.
1990), cert. denied, 111 S. Ct. 1307
[32 ERC 2038] (1991). Therefore, the
court expressly approved the instruc-
tion requesting the jury to deter-
mine whether "the defendant knew
that the material had the potential
to be harmful to others or the envi-
ronment, in other words, that it was
not an innocuous substance like
water." [35 ERC at 2127].

U.S. v. Mexico Feed and Seed
Co., [35 ERC 1761] (8th Cir. 1992).
The president and owner of a waste
oil hauling company may be liable
under the Comprehensive Environ-
mental Response Compensation and
Liability Act (CERCLA) for cleaning
up waste oil containing PCBs even
though he did not know the waste
oil which the company hauled and
stored was contaminated with
PCBs.
Noting that CERCLA is a reme-
dial, strict liability statute, the court
held that ignorance of the nature of
r the substance is no defense to liabil-
ity. The successor company which
purchased the assets of the waste
oil company's assets in an arm's
length transaction, however, was


not liable under CERCLA because
it was not a mere continuation of
the previous company and it had no
knowledge of the existence of the
waste oil storage tanks associated
with the contaminated site. Further-
more, the policy to be furthered by
the doctrine of successor liability
was not present, since the previous
owner and corporate entity were
jointly and severally liable under
CERCLA and thus had not escaped
liability through the sale transac-
tion. [35 ERC at 1769].
Stanton Road Assoc. v. Lohrey
Enterprises, [36 ERC 1081] (9th
Cir. 1993). A federal district court
lacks authority to order parties
found liable under CERCLA to place
money in escrow to fund the future
cleanup of contamination.
The owner/operator of a dryclean-
ing plant which caused contamina-
tion to plaintiff's adjacent property
could not be forced to pay response
costs that plaintiff had not yet in-
curred nor established to be neces-
sary and consistent with the na-
tional contingency plan. While
113(g)(2) of
CERCLA authorizes a plaintiff to
bring a declaratory action to deter-
mine liability, response costs cannot
as a matter of law be awarded until
they have been actually incurred
and proven to be necessary and con-
sistent with the NCP. The court also
held, however, that this prohibition
against an award of future CERCLA
response costs was not applicable to
damages awarded pursuant to pen-
dent state claims of trespass, negli-
gence and nuisance. The court rea-
soned that 302(d) of CERCLA
expressly states that CERCLA does
not affect or modify any liabilities
based on state law. Furthermore,
the court pointed out that the prohi-
bition in 114(b) against recovering
removal costs or damages under
both state law and CERCLA would
be inexplicable if the costs recover-
able under CERCLA were not also
recoverable under state law.
Donahey v. Bogle, [36 ERC


1205] (6th Cir. 1993). The purchaser
of contaminated property could not
rescind the sales contract based on
the presence of contaminants be-
cause contamination does not encum-
ber title and the purchaser knew of
the contamination before the pur-
chase.
Despite the diminished value of
the purchaser's land due to the for-
mer operator's activities, rescission
was not appropriate because clear
title had passed to the purchaser.
Furthermore, the former lessor's
promise to remediate the site as re-
cited in a sale document demon-
strated that the plaintiff knew of the
contamination prior to purchasing
the property.

Gould, Inc. v. Arkwright Mu-
tual Ins. Co., [8 TXLR 171] (D. M.
Pa. June 25, 1993). An insurance pol-
icy containing a qualified pollution
exclusion may provide coverage for
personal injury damage based on
the theory of trespass by pollution
according to a recent federal court
decision in Pennsylvania.
The court denied the insurer's mo-
tion for summary judgement in a
declaratory judgement action
brought by policyholder Gould who
sought seeking defense and indem-
nity for claims brought by property
owners whose land was allegedly con-
taminated by a battery crushing
operation on plaintiffs property. The
court noted that the pollution exclu-
sion applies only to policy's property
damage and bodily injury provisions
and does not purport to restrict cov-
erage for personal injury. In recon-
ciling the two provisions, the court
relied on Pennsylvania law which re-
quires a policy ambiguity to be
resolved against the insurer. Since
it is arguable, according to the court,
that the personal injury endorse-
ment represents an addition or
extension of coverage which is not
limited by the pollution exclusion
clause in the property damage por-
tion of the policy and hence denied
summary judgment.
This decision may provide addi-
continued ...







FEDERAL CASELAW UPDATE
from preceding page



tional ammunition for those prop-
erty owners seeking coverage for con-
tamination caused over time in light
of the Florida Supreme Court's re-
cent reversal in Dimmitt Chevrolet,
Inc. v. Southeastern Fidelity Insur-
ance Corp.
C. Robin Hall


B.F. Goodrich Co. v. Murtha,
U.S. Dist. Ct. (D. Conn.) Jan. 11,
1993, 36 ERC 1705.
This CERCLA cost recovery action
arose out of the disposal of hazard-
ous substances at a landfill. Several
defendants consented to pay for the
clean up. These entities formed a
"coalition" and attempted to implead
1151 entities as third party defen-
dants. The coalition sought contri-
bution from these entities.
The court required the coalition to
substantiate, legally and factually,
each such contribution claim, prior
to allowing the claim to be filed
against any third party. The court
conducted a de novo review of the
claims and granted the coalition
leave to file only 41 of the claims.
The court reasoned that the remain-
ing 1110 claims did not meet the re-
quirements of Federal Rule of Civil
Procedure 11.
In analyzing the coalition's case
under Rule 11, the court set forth a
three prong test to determine
whether to allow the third party com-
plaints: 1) is the complaint based on
a reasonable inquiry; 2) is the com-
plaint well grounded in fact; 3) is
the complaint warranted by existing
law. The coalition relied on the tes-
timony of one "expert" witness who
concluded generically that each
third party's waste was similar to
the purported waste found in the
landfill. This evidence, however, was
not good enough. The court required
a factual foundation for the expert's
opinion as to each third party and
noted that the discovery process is
not intended to first substantiate
whether a cause of action is well
grounded in fact.
This court's strong emphasis on
the requirements of Rule 11 will sub-
stantially affect the development of
CERCLA contribution litigation,


and may end the "scavenger hunt" private plaintiffs.
for new PRP's undertaken by many George F. Gramling III


C. Robin Hall is an associate with
the Law Offices of Charles G.
Stephens in Tampa. Ms. Hall re-
ceived her J.D., with honors, from
Stetson University College of Law in
1991, and her B.A. from Dartmouth
College in 1986.

Mr. Gramling is a partner in the
law firm of Frank, Schabacker &
Gramling, located at 201 N. Fran-


klin Street, Suite 2350, Tampa, Flor-
ida 33602. Mr. Gramling's envi-
ronmental law practice includes liti-
gation in state and federal courts,
Superfund proceedings, corporate
due diligence, solid and hazardous
waste regulation and toxic tort mat-
ters. Mr. Gramling is past Chair of
the Environmental Law Section of
the Hillsborough County Bar Asso-
ciation.


1993-94
Environmental and Land Use Law Section

Budget


The budge outlined below was ap-
proved by the ELULS Executive
Council and subsequently by the


REVENUE
Dues
Dues Retained by Bar
Net Dues

Affiliate Dues
Affiliate Dues Retained
Net Afliliate Dues
Net Dues

Videotape Sales
Audiotape Sales
CLE Seminars
Exhibitors
CLE Workshops
Interest

TOTAL REVENUE


EXPENSES
Postage
Printing
Newsletter
Membership
Photocopying
Officer Travel
Meeting Travel
CLE Speakers
Committees
Executive Council
Bar Annual Meeting
Section Annual Meeting
CLE Workshops
Retreat
FSU Law Journal
Public Interest Representation
ELULS Manual


$39,000
19,500
$19,500

$ 7,750
3,100
$ 4,650
$24,150

$ 100
3,500
11,500
3,000
1,000
3,000


Bud get Committee and Board of Gov-
ernors of The Florida Bar.


Public Interest Committee
Membership Directory
Awards
Scholarships
Law School Liaison
Dean Maloney Writing Contest
Access to Justice
Council of Sections
Operating Reserve
Miscellaneous
FAX Charges
Staff Travel

TOTAL EXPENSES


Beginning Fund Balance
$46,250 Plus Revenues
Less Expenses
Ending Fund Balance


$3,500
800
7,500
500
450
1,000
2,000
1,000
1,000
2,500
2,200
5,300
4,000
9,000
1,000
2,500
4,000


2,000
6,000
2,500
6,000
3,000
2,500
5,000 7
300
8,090
1,000
350
$4,000

$88,990


$50,705
+46,250
-88,990
$ 7,965


Travel and Office Expenses
All travel and office expense payments
are in accordance with Florida Bar Stand-
ing Board Policy 5.23. Travel expenses
for other than members or Bar staff may
be made if in accordance with SBP 5.23
(e)(5)(h), which is available from Bar
headquarters upon request.

Excess CLE Speaker Expense
The section has elected to budget for re-
imbursement of CLE speakers at the sec-
tion's cosponsored courses of expenses in
excess of the CLE policy limit. The ex- ,'
cess expenses reimbursed by the section
are without limit.









On Appeal


by Cathy M. Sellers and Lawrence E. Sellers, Jr.


Note: status of cases is as of July 2,
1993. Readers are encouraged to ad-
vise the authors of pending appeals
that should be included.

Supreme Court
Dimmitt Chevrolet v. Southeast Fi-
I delity Insurance Co., Case No.
78,293. The United States Circuit
Court of Appeals for the 11th Cir-
cuit asked the Supreme Court of Flor-
ida to determine "whether, as a mat-
ter of law, the pollution exclusion
clause contained in the compre-
hensive general liability insurance
policy precludes coverage to its in-
sured for liability for the environ-
mental contamination that occurred
in this case." 935 F.2d 240 (11th Cir.
1991). Status: Initial opinion filed
September 3, 1992. 17 FLW S579
(Fla. 1992). Motion for rehearing
granted and substitute opinion is-
sued on July 1. On rehearing, the
court determined that the phrase
"sudden and accidental," as used in
the insurance policy means "abrupt
and unexpected." The court there-
fore concluded that the pollution dam-
age was not within the scope of the
policy since the pollution took place
over a period of many years and
most of it occurred gradually.
Emerald Acres Investments, Inc. v.
Leon County. The district court of
appeal has certified to the Florida
Supreme Court the following ques-
tion of great public importance:
Whether the right to petition for com-
mon law certiorari in the circuit
courts of the state is still available
to a landowner/petitioner who seeks
appellate review of a local govern-
ment development order finding
comprehensive plan inconsistency,
notwithstanding Section 163.3215,
Florida Statutes (1989). 601 So.2d
577 (Fla. 1st DCA 1992). Status:
Question certified on July 9, 1992.

Young v. Department of Commu-
nity Affairs, Case No. 76,911. Peti-
tion for review of opinion affirming
FLWAC final order denying an ap-
plication for a development permit
following an appeal to FLWAC by


the Department of Community Af-
fairs. 567 So.2d 2 (Fla. 3d DCA
1990). FLWAC and the hearing offi-
cer concluded that the applicant de-
veloper, and not the Department,
bears the ultimate burden of proof,
even in an "appeal" by the Depart-
ment of a development permit is-
sued by the local government. The
applicant developer declined to pre-
sent evidence at the hearing on the
appeal to FLWAC, and FLWAC de-
nied the permit. Status: Oral argu-
ment held September 4, 1991.
Board of County Commissioners of
Brevard County v. Snyder, Case No.
79,720. Appeal from a decision of the
Fifth DCA holding that small parcel
rezonings are not legislative actions
(subject to the fairly debatable stan-
dard of judicial review), but, instead,
are quasi-judicial actions subject to
strict judicial scrutiny. 595 So.2d 65
(Fla. 5th DCA 1991). The court also
held that, once a property owner es-
tablishes prima facie entitlement to
rezoning, the local government must
rebut the entitlement by clear and
convincing evidence showing that
the rezoning must be denied due to
a specifically stated public necessity.
Status: Oral argument held March
1, 1993.

Palm Beach County v. Wright, et
al., Case No. 81,278. On certified
question of great public importance
from the 4th DCA. The 4th DCA af-
firmed the trial court's invalidation
of Palm Beach County's thorough-
fare map adopted as part of the
County's local comprehensive plan.
612 So.2d 709 (Fla. 4th DCA 1993).
The court certified the following ques-
tion of great public importance: Is a
county thoroughfare map designat-
ing corridors for future roadways
and which forbids land use activity
that would impede future construc-
tion of a roadway, adopted incident
to a comprehensive county land use
plan enacted under the Local
Comprehensive Planning and Land
Development Regulation Act, fa-
cially unconstitutional under Joint
Ventures v. Department of Transpor-


station, 563 So.2d 622 (Fla. 1990)?
Status: Initial and answer briefs
filed; reply brief due July 12, 1993;
court has not yet accepted juris-
diction.

Department of Transportation v.
Weisenfeld, Case No. 81,653. Peti-
tion for review of Department of
Transportation v. Weisenfeld, 18
FLW D803 (Fla. 5th DCA 1993),
based on certified conflict with the
Second District's decision in Tampa-
Hillsborough County Expressway
Authority v. A.G.WS. Corp., 608
So.2d 52 (Fla. 2d DCA 1992). In an
en banc decision, the Fifth District
reversed the trial court's order grant-
ing partial summary judgment for
Weisenfeld based on his claim that
the filing of a map of reservation by
DOT constituted a temporary regu-
latory taking of his property. Status:
Reply brief due July 26.

First DCA
Coastal Environmental Society v.
Department of Environmental Regu-
lation, Case No. 91-3840. Appeal
from final order adopting the hear-
ing officer's recommendation to
grant several permits, including a
MSSW permit, in connection with
the construction of a solid waste fa-
cility (a landfill) proposed by appel-
lee Trail Ridge Landfill, Inc. status:
Initial opinion issued on November
10, affirming in part, reversing in
part, and remanding with directions;
motion for rehearing granted on
April 16; opinion on rehearing re-
cognizes that subsequently enacted
legislation specifically overturns the
portion of the court's initial decision
that required reversal and remand.
616 So.2d 626 (Fla. 1st DCA 1993).

Killearn Properties, Inc. v. Depart-
ment of Community Affairs, Docket
No. 92-251. Appeal from final order
determining development to consti-
tute a substantial deviation because
developer had exceeded unstated
buildout date by more than five
years. In so holding, DCA rejected
many of the conclusions in the rec-
continued ...







ON APPEAL
from preceding page



ommended order. Status: Oral argu-
ment held November 5, 1992.

City of Ft. Myers v. Board of Re-
gents, Docket No. 92-1350; Respon-
sible Growth Management Coalition
v. Board of Regents, Docket No. 92-
1038. Appeals from orders denying
petitions for formal administrative
hearing regarding the Board of Re-
gents' decision to select property
owned by Alico, Inc., as the site for
the tenth state university. Among
other things, appellants alleged that
the selected site is inconsistent with
state, regional and local com-
prehensive plans. Status: Affirmed
per curiam on March 24.

Florida Power Corporation v. De-
partment of Environmental Regula-
tion, Case No. 92-2933. Appeal from
final order denying application for
permit to clear transmission line cor-
ridor. 92 ER FALR 161 (DER 1992).
The final order is contrary to a rec-
ommended order that recommended
that the permit be issued. Status:
Oral argument held March 4; court
has requested supplemental briefs.

Santa Rosa County v. Department
of Community Affairs, Case No. 93-
659. Appeal from trial court deter-
mination that Santa Rosa County is
not entitled to a declaratory judg-
ment on constitutional issues regard-
ing the state's local comprehensive
plan laws and rules because the
County previously settled its
comprehensive plan dispute with
the state. Status: Initial brief filed
May 13; answer brief filed June 23;
amicus curiae brief filed June 23.

Harmon Bros. Rock Co. v. Depart-
ment of Environmental Regulation,
Case No. 93-1643. Appeal from final
order denying assertion of qualifica-
tion for limerock mining grandfather
provisions in Section 403.913(8), Flor-
ida Statutes. The referenced section
provided an opportunity for certain
limerock mining activities to be
granted relief from the expanded wet-
lands jurisdiction created by the Hen-
derson Act, and required anyone
asserting qualification under this pro-
vision to notify DER within 180 days


after the publication of a notice.
DER published this notice in the Flor-
ida Administrative Weekly on Sep-
tember 28, 1984. In its final order,
DER rejected arguments that the
agency was required to give actual
notice to the petitioner. 15 FALR
2183 (DER 1993). Status: Notice of
appeal filed May 25.

Cortes v. Board of Regents, Case
No. 93-1886. Appeal from hearing of-
ficer's determination that rule author-
izing use of negative checkoff sys-
tem to fund Florida Public Interest
Research Group is valid. Status: No-
tice of Appeal filed June 16.

Second DCA
Saddlebrook Resorts, Inc. v. Wire-
grass Ranch, Inc. and SWFWMD,
Case No. 92-1653. Appeal from
SWFWMD final order closing file.
The appeal involves the issue of
whether an administrative agency
has jurisdiction to act on a recom-
mended order after withdrawal of
the petition for hearing. Status: Oral
argument held January 19.

Remington v. Board of Trustees of
the Internal Improvement Trust
Fund, Case No. 92-2476. Appeal
from final order dismissing chal-
lenge to Trustees' proposed barrier
islands moratorium rule. 14 FALR
3089. Status: Oral argument contin-
ued; status report filed June 10. Edi-
tor's note: Also appealed to Fourth
DCA, sub nom., Lost Tree Village
Corp. v. Trustees.

Citizens Political Committee v. Col-
lier County and Department of Com-
munity Affairs, Case No. 92-3191. Ap-
peal from a final order of the De-
partment of Community Affairs find-
ing certain amendments to the Col-
lier County comprehensive plan
adopted pursuant to a settlement
agreement in compliance with
Chapter 163, Florida Statutes, and
Rule 9J-5. 92 ER FALR 162 (DCA
1992). At issue is whether policies
in the Collier County local com-
prehensive plan providing that trans-
portation concurrency can be met by
inclusion of a facility in the local gov-
ernment's five-year capital improve-
ments program satisfy the Growth
Management Act's concurrency re-
quirement. Status: Oral argument
held March 5.


Florida Game and Fresh Water
Fish Commission v. Flotilla, Case
No. 93-554. Appeal from circuit
court decision determining that the
Commission had taken all the bene-
ficial use of the property as a result
of the application of the guidelines
establishing a preservation area
around eagles nests. Flotilla, Inc. v.
Florida Game and Fresh Water Fish
Commission, Case No. CA 90-2356
(February 2, 1993). Status: All briefs
have been filed.

Fourth DCA
Pompano Beach v. Yardarm Res-
taurant, Inc., Case No. 91-1829. Ap-
peal from circuit court decision on
an inverse condemnation claim de-
termining that actions by the city,
including the revocation of a lawful
building permit for an 18-story hotel
project, constituted a compensable
taking. The city's actions ultimately
led to the loss of the property in ques-
tion through foreclosure. Status:
Oral argument held April 23, 1992.

Lost Tree Village Corp. v. Board
of Trustees of the Internal Improve-
ment Trust Fund, Case No. 92-1985.
Appeal from final order dismissing
challenge to Trustees' proposed bar-
rier islands moratorium rule. 14
FALR 3089. Status: All briefs have
been filed. Editor's note: Also ap-
pealed to First DCA sub nom. Re-
mington v. Trustees.

St. Lucie County v. City of Ft.
Pierce, Case No. 93-1102. Appeal
from circuit court decision determin-
ing that the city is not required to
dispose of solid waste generated
within its boundaries at the county
landfill, notwithstanding a county or-
dinance requiring it to do so. St. Lu-
cie County v. City of Ft. Pierce, et al.,
Case No. 92-1454 CA 17. Status: In-
itial brief filed June 29.

Fifth DCA
Citizens for Responsible Boating,
Inc. v. Department of Natural Re-
sources, Case No. 92-687. Appeal
from determination that DNR's boat-
speed rule is valid. Status: Affirmed
per curiam on February 12.

Hughes Supply, Inc. v. DER, Case
No. 92-02994. Appeal from DER or-
der denying coverage under the Pe-
troleum Liability Insurance and Res-
toration Program. 92 ER FALR 210







(November 5, 1992). Status: Oral ar-
gument held June 29.

DER v. Fowler, White, Lustik, et
al., Case No. 93-01288. Appeal from
circuit court order awarding zero pen-
alty for the violation of an environ-
mental law, on the basis that the
defendant was found not to have
known of the existence of subject
law. Case No. 90-2721-CA-01-E.
Status: Notice of appeal filed June
1.

U.S. Supreme Court
Chicago v. Environmental Defense
Fund, Case No. 92-1639. Petition for
review of decision by Seventh Cir-
cuit in Environmental Defense Fund
v. Chicago, 985 F.2d 303 (7th Cir.
1993). On remand, the court of ap-
peals again held that ash generated
by the incineration of municipal
solid waste is subject to regulation
as hazardous waste under Subtitle
C of the Resource Conservation and
Recovery Act. The Seventh Circuit
reaffirmed its previous decision, re-
iterating its position that "EPA has
changed its view [on ash] so often
that it is no longer entitled to the
r deference normally accorded an
agency's interpretation of the stat-
ute." The seventh circuit's ruling ap-
pears to conflict with that of the
second circuit in EDF v. Wheelabra-
tor, 931 F.2d 211 (2d Cir., April 24,
1992). Status: Certiorari granted on
June 21.

C & A Carbone Inc. v. Clarkstown,
Case No. 92-1402. Petition for re-
view of decision by a New York ap-
peals court upholding an ordinance
that requires all non-recyclable solid
waste generated within the town to
be processed at a designated trash
disposal facility before being ship-
ped elsewhere for disposal. Clark-
stown v. C & A Carbone Inc., 182
A.2d 213 (NY Sup. Ct. 1992). Status:
Petition granted on May 24.

Seventh Circuit
Hoffman Homes, Inc. v. EPA, 975
F.2d 1554 (7th Cir. 1992). The
court's initial opinion limited EPA's
authority to regulate isolated wet-
lands. 961 F.2d 1310 (7th Cir. 1992).
r Status: Order issued September 4,
1992, vacating prior ruling. Settle-
ment negotiations were unsuccess-
ful. Parties are waiting for court to
issue a new opinion or to provide


further direction.

Eleventh Circuit
Reahard v. Lee County, Case No.
not yet assigned. Appeal from ruling
of U.S. District Court for the Middle
District of Florida amending and ex-
panding the initial order of taking
and reinstating the original judg-
ment in Reahard v. Lee County
(Case No. 89-227 CIV-FTM-10C). In
that case, the court determined that
the County's designation of the
Reahards' property as Resource Pro-
tection Area, which allowed one resi-
dential unit per 40 acres resulted
in a compensable taking. The
Reahards were awarded $700,000
compensation. Status: Notice of ap-
peal filed June 23; briefing schedule
not set at this time.

Industrial Indemnity Insurance
Company, et al. v. Crown Auto Deal-


Tampa attorney Ted Taub has
been appointed to the Board of Visi-
tors of Duke University's Terry San-
ford Institute of Public Policy by the
President of Duke University, Nan-
ernl Keohane. The Institute is
named after former North Carolina
Governor and United States Sena-
tor Terry Sanford and has become
one of the leading public policy pro-
grams in the nation. The Board acts
as a liaison between business and
government on the one hand and the
academic community on the other in
guiding the continuing development
of the Institute.

Williams Reed Weinstein Schifino
& Magione is pleased to announce
that Russell S. Thomas has joined
the firm's environmental and land
use practice group. Mr. Thomas con-
centrates his practice in environ-
mental law, including civil and ad-
ministrative litigation, permitting
and compliance.

George F. Gramling III, a part-
ner in the law firm of Frank, Schab-


erships, Inc., et al., Case No. 90-
3359. Appeal from order granting
plaintiff insurance company's mo-
tion for summary judgment against
its insured in suit concerning
whether insurance policy provides
coverage for hazardous waste con-
tamination. 731 F. Supp. 1517 (M.D.
Fla. 1990). Status: The court asked
the Florida Supreme Court to ad-
dress the coverage question (see Dim-
mit above). 935 F.2d 240 (11th Cir.
1991).

Federal District Court of
Appeal
Florida Rock Industries, Inc. v.
The United States, Case No. 91-
5156. Appeal from determination by
U.S. Claims Court that Army Corps
of Engineers' denial of a Section 404
dredge and fill permit to undertake
limestone mining in wetlands con-
continued...


acker & Gramling, is located at 201
N. Franklin Street, Suite 2350,
Tampa, Florida 33602. Mr. Gram-
ling's environmental law practice in-
cludes litigation in state and federal
courts, Superfund, corporate due dili-
gence, solid and hazardous waste
regulation and toxic tort matters.
Mr. Gramling served as 1992-1993
Chair of the Environmental Law Sec-
tion of the Hillsborough County Bar
Association.

Professor of Law, Alfred Robert
(Fred) Light has been named In-
terim Dean of the St. Thomas Uni-
versity School of Law by the Uni-
versity's Interim President, Fr. Ed-
ward McCarthy.
Dean Light has been a professor
with the University since 1989, spe-
cializing in administrative law, civil
procedure, environmental law, and
particular hazardous waste. Previ-
ously, Dean Light was an attorney
with the Energy-Environmental
Team of Hunton & Williams in
Richmond, Virginia.


On the Move

S Please submit your "On the Move" notices to the co-editors for
publication in the newsletter.







MIDDLE GROUND
from page 1


judicial" cases. In the author's view
some have overreacted. For exam-
ple, one county within the Fifth Dis-
trict recently swore witnesses and
allowed cross-examination during a
public hearing to transmit a pro-
posed comprehensive plan amend-
ment to the Department of Commu-
nity Affairs. Given the Fifth Dis-
trict's unpredictability and the zeal
with which landowners' lawyers
have seized upon this new line of
cases, the County can hardly be
blamed. However, it is extremely un-
likely, even if it upheld the specific
ruling in Snyder, that the Supreme
Court would extend that holding to
even the adoption of an ordinance
amending a plan, let alone a resolu-
tion to transmit a draft proposal for
state review-an action which pre-
dates the adoption of an amendment
by many months.
In another example, a local plan-
ning advisory board limited public
comment on a requested rezoning to
those persons who would have stand-
ing to sue over it's decision. In the
view of the writer, a public body that
is making a decision on behalf of the
public at large is not required, and
perhaps is not authorized, to limit



ON APPEAL
from preceding page

stituted a taking of Florida Rock's
property, entitling Florida Rock to
just compensation. Status: Oral ar-
gument held May 8, 1992.

Cathy M. Sellers received her J.D.,
with high honors, from the Florida
State University College of Law in
1988. She is an attorney in the Tal-
lahassee office of Steel Hector &
Davis.

Lawrence E. Sellers, Jr., received his
J.D., with honors, from the Uni-
versity of Florida College of Law in
1979. He is a partner in the Tallahas-
see office of Holland & Knight. He is
a member of the Executive Council
of the Environmental and Land Use
Law Section of The Florida Bar.


public input in this.manner.
The ELULS's Ad Hoc Committee
on Nonlawyer Representation
is also responding to these cases by
reviewing whether special stan-
dards should have to be met by
persons who undertake to represent
parties at the local government
level. I support this effort because I
believe it is our duty as lawyers to
ensure that local governments and
parties who appear before them cor-
rectly understand this evolving area
of law and have their rights and re-
sponsibilities thereunder fully pro-
tected. We must also be evermindful
of the great public policy interest in
maintaining citizens' access to the
local decision-making process. Local
processes that are too cumbersome
and confusing or for which you abso-
lutely need to hire an attorney to
assert your rights are not in the pub-
lic interest.
There has been speculation that
the characterization of rezoning de-
cisions as quasi-judicial automati-
cally carries with it hook, line and
sinker the requirement that court-
like rules be adhered to in local re-
zoning proceedings. This is not ne-
cessarily the case. First, at least in
this author's opinion, the most sig-
nificant result which the courts have
sought is a higher level of scrutiny
of the substance of a local decision,
not necessarily the procedures by
which it was made. Significantly,
the case which arguably applied the
closest scrutiny to a local decision,
Machado v. Musgrove, did so while
continuing to view rezonings as leg-
islative. The label to be placed on
these decisions is less important
than the quality of the decision.
Second, even those proceedings
which have traditionally been
viewed as quasi-judicial have not
been required by the courts to em-
ploy the full panoply of judicial pro-
cedures.
Neither the consistency require-
ment nor the characterization of
rezonings as quasi-judicial require
the imposition of onerous or burden-
some procedural changes to the local
hearing process. The most impor-
tant reason is that the "consistency"
cause of action under 163.3215,
Fla. Stat. (1991) for declaratory and
injunctive relief is an original de
novo action at which evidence on the
consistency issue can be presented.
See Gregory v. Alachua County, 553


So.2d 206, (Fla. 1st DCA 1989) (de-
velopment orders are subject to both
certiorari review and 163.3215 chal-
lenge but "consistency" challenge.
may only be brought und
163.3215, Fla. Stat. (1991)) Id. at
208-9. A party defending, or chal-
lenging a "consistency" challenge to
a rezoning need not have provided
all of the technical, scientific and
other evidence (under oath and sub-
ject to cross examination) needed to
support its position at the local gov-
ernment hearing. This would be an
unnecessary requirement as most lo-
cal decisions are not challenged.
Perhaps it is unfortunate that courts
have focused on the quasi-judicial
label concerning rezonings, given
that the "consistency" cause of ac-
tion is a de novo proceeding. Like
Machado, the label should not be all
important. Hopefully, the Supreme
Court will adopt a rule which pre-
serves the efficiency and accessibil-
ity of the local hearing process
which preserves the integrity of the
planning process.

1. Ex Parte Communications.
The implications of characterizing
rezonings as quasi-judicial have de-A
finitely been expanded by JenningsVj
v. Dade County, 589 So.2d 1337 (Fla.
3rd DCA 1991). In Jennings, a lan-
downer had successfully applied for
a variance to allow him to operate a
quick oil change operation on his
property. The adjacent landowner
filed a circuit court complaint alleg-
ing that a lobbyist that worked for
the applicant had communicated
with County Commission members
outside of the public hearing and
that this ex parte communication
prejudiced the Commission's deci-
sion.
On appeal, the First District ruled
that ex parte communications should
be presumptively prohibited in
quasi-judicial settings. The court
ruled that where a party challenges
a quasi-judicial action on this basis
a court should presume that the com-
munication prejudiced the complain-
ing party but that this presumption
could be rebutted by a showing that,
in fact, no prejudice occurred. Jen-
nings is the first Florida case to an-
nounce such a rule. The Supreme /
Court declined to hear an appeal.
The Jennings rule is very clear
and even though no other district
besides the Third has expressly fol-








lowed Jennings, many local jurisdic-
tions are wisely instituting formal
or informal rules to ensure that lo-
Scal decisions are not vulnerable to
an ex parte challenge.
Jennings has been praised by
those who feel that landowners who
can hire lobbyists have an unfair
and inappropriate influence on local
government decision-making and
that decisions should be based solely
on the record established in public
meeting. On the other hand, the opin-
ion has been criticized by those who
argue that the ability to communi-
cate with elected officials on impor-
tant public matters is a fundamen-
tal component of a citizen's right of
access to government.
These competing interests can be
reconciled by an approach that en-
sures that quasi-judicial decisions of
local governments are based only on
considerations and arguments that
are aired and subject to rebuttal and
discussion at public hearings. Infor-
mal communications between one of
the parties and a local official would
not be completely prohibited as long
as a record is kept and published of
what was said and the points and
considerations discussed at any such
meeting are re-stated at the subse-
quent public hearing so that the
opposing side has an equal opportu-
nity to be heard.

2. Sworn Testimony and Cross
Examination.
Sworn testimony has not been re-
quired for special hearings. See e.g.
City of St. Petersburg v. Cardinal In-
dustries Development, 493 So. 2d
535 (Fla. 2d DCA 1986) and Pollard
v. Palm Beach County, 560 So.2d
1358 (Fla. 4th DCA 1990).
The Pollard court, while not re-
quiring sworn testimony, did at
least question the County's failure
to do so. Also, at least one Florida
case has criticized the failure of lo-
cal government to allow cross exami-
nation at a quasi-judicial proceed-
ing. City of Apopka v. Orange
County, 299 So.2d 657, 660 (Fla. 4th
DCA 1974). Again however, no Flor-
ida court, including the Fifth Dis-
trict, has required a local govern-
ment to institute such procedures.

1 3. Findings of Fact.
In order to promote and allow the
more reasoned decisionmaking and
"strict" scrutiny sought by the


Growth Management Act and cases
like Snyder and Machado, courts
should require that development or-
ders denying or granting (or grant-
ing with conditions) rezoning appli-
cations (or any other development
permit) include minimal findings of
fact and a planning rationale which
would allow a court reviewing the
order by certiorari to glean the rea-
son and rationale underlying the
decision from the record.
In Pacifica Corp. v. City ofCamar-
illo, 149 Cal. App. 168; 196 Cal.
Rptr. 670 (1983) the California court
discussed the requirement that a
"quasi-judicial" local government de-
cision be supported by "findings". In
this court's thorough analysis, such
findings:
must be sufficient both to enable the par-
ties to determine whether, and on what
basis, they should seek review and, in
the event of review, to apprise a review-
ing court of the basis for the action.
Stated differently, the finding must
bridge the analytical gap between the
raw evidence and ultimate decision or
order. [These findings] need not be
stated with the same formality required
in judicial proceedings.
and summary of factual data, the lan-
guage of a motion, or a staff report
could constitute sufficient findings.
149 Cal. App. 3d at 179. For exam-
ple, an order denying a rezoning
might state: "Rezoning denied for
the reasons stated in the staff analy-
sis .. ." or "rezoning denied because
environmental considerations and
the lack of surrounding development
make the existing, lower density zon-
ing appropriate." An order granting
a rezoning might state that "the
plan allows a density range of be-
tween 10 and 20 units per acre in
this area and the absence of signifi-
cant natural resources and the exis-
tence of high density end of the scale
appropriate." Machado, in requiring
a verbatim written record, probably
goes too far. The important point is
that a landowner who is denied a
rezoning, and a reviewing court
should be able to determine the es-
sential basis for a decision. Such a
requirement would increase the qual-
ity and consistency of decisions and
probably result in fewer lawsuits.
An Alternative Snyder
Approach: the Sunbelt
Equities Case
On May 14, 1993 the Second Dis-


trict issued an opinion in Lee County
v. Sunbelt Equities, 18 FLW D1260
(Fla. 2nd DCA 1993) which granted
the county's petition for writ of cer-
tiorari. Sunbelt had requested a
rezoning from agriculture to commer-
cial/office. This proposal was "con-
sistent with future land use projec-
tions" in the comprehensive plan.
County staff and the county hearing
officer had recommended approval
but were overruled by the Commis-
sion, who denied the rezoning, based
on specific findings of inconsistency
with adopted neighborhood commer-
cial standards, the acreage cap for
commercial development in the rele-
vant district under the plan's 2010
overlay map, and with the desire not
to open a new area for premature,
scattered or strip development.
Sunbelt petitioned for a writ of cer-
tiorari and filed a petition under
s.163.3215 F.S. The circuit court
granted the petition for cert, finding
no competent substantial evidence
to support the denial.
On appeal, The Second District
agreed with the functional analysis
of Snyder and ruled that site spe-
cific, owner-initiated rezoning re-
quests are quasi-judicial so that fi-
nal local orders may be reviewed by
appeal. The court said that this
meant that "overly informal" local
procedures may have to change as
a result but that the required proce-
dures need not be the same as for a
full judicial proceeding.
Discussing the ramifications of its
holding, the court discussed the is-
sue of fairly debatable and strict scru-
tiny. It analyzed the fairly debatable
and competent substantial evidence
standards and found them to mean
basically the same thing.
Although it adopted the fundamen-
tal premise of Snyder, the Second
District found the remainder of that
opinion too great a departure from
prior land use law decisions. It re-
versed the circuit court's assignment
of the burden of proof on the county.
The court described how previous
decisions had recognized the right
of a local government to zone prop-
erty at the low end of the range al-
lowed by a comprehensive plan. It
stated that both current plan desig-
nations and zoning (the court in-
voked the "if you bought a swamp,
you must have wanted a swamp")
are entitled to some presumption of
correctness, declining to agree with
continued ...







MIDDLE GROUND
from preceding page



Snyder's mistrust of existing zoning
classifications. It held that, where
more than one zoning category is con-
sistent with a plan, the landowner
is entitled to relief only if she can
show that the status quo is no
longer reasonable. Any changes that
are inconsistent with the plan will
be judged by Machado's strict scru-
tiny standard.
The court rejected Snyder's clear
and convincing evidence test and its
assumption that landowners are pre-
sumptively entitled to the highest
and best use of their property.
The court stated that the charac-
terization of rezoning hearings as
quasi judicial does not operate to ex-
clude the public from speaking on
such a proposal, reasoning, quite ap-
propriately, that such proceedings
can never be completely depoliti-
cized because of the need to main-
tain citizen access, but that requir-
ing specific reasons for local deci-
sions should diminish the ability of
a local government to "mask the real
reason" for a decision.
The court's modified Snyder
approach is as follows:
The applicant bears the burden of
proving that the proposal is consis-
tent with the plan. If this is done,
the burden shifts to the local gov-
ernment, but "only to show by sub-
stantial competent evidence that the
existing (obviously more restrictive)
zoning classification was enacted in
furtherance of some legitimate pub-
lic purpose and that the public
interest is legitimately served by con-
tinuing that classification." If this
showing is made, the burden shifts
back to the landowner to prove a tak-
ing.
Moving back to the facts before it,
the court stated that it was not
enough for Sunbelt to show that its
proposal was consistent with the en-
visioned buildout of the area on the
Future Land Use Map. "One must
also look to the present character of
the area, which is reflecting the ex-
isting zoning classification." The
Court correctly viewed Future Land
Use Maps as establishing a future
ceiling on density, not a license to
approach that ceiling immediately.


Analysis
1. Burden of Proof
This writer agrees with Snyder
that courts should carefully review
zoning decisions for plan consistency
but feels that Snyder inappropri-
ately assigns the burden of proving
the consistency of rezoning denial
upon the local government. Snyder
also inexplicably fails to apply "strict
scrutiny" to the approval of a rezon-
ing request. The Machado or Sun-
belt Equities approach more appro-
priately respects existing zoning.
It is the author's view that when
developers request changes in zon-
ing the application should be scruti-
nized very carefully, and the devel-
oper should have to prove that she
should be given a new zoning classi-
fication.
On the other hand, when the
Board's decision to grant a land use
change is appealed, the reviewing
court should also make sure that the
change was not allowed arbitrarily.
This approach appropriately re-
quires decisions to rezone to be
affirmatively supported by facts
which demonstrate that the objec-
tives of the comprehensive plan are
in fact being furthered. Such a rule
should improve the quality of local
decisions by encouraging local gov-
ernments to examine closely the in-
dividual facts presented by rezoning
applications in relation to the goals,
objectives and policies previously es-
tablished in the comprehensive
plan.

2. Definition of Consistent
(Standard of Proof).
Unfortunately, most of the decisions in
this area completely ignore the defini-
tion of "consistent" supplied by the
Growth Management Act. According to
the Act, a development order (which in-
cludes rezonings) is consistent with the
comprehensive plan "if the land uses, den-
sities or intensities, capacity or size, tim-
ing, and other aspects of the develop-
ment are compatible with and further
the objectives, policies, land uses, and
densities or intensities in the
comprehensive plan. Further, a develop-
ment order or land development regula-
tion shall be consistent with the
comprehensive plan if the land uses, den-
sities or intensities, and other aspects
of development permitted by such order
or regulation are compatible with and
further the objectives, policies, land
uses, and densities or intensities in the
comprehensive plan and if it meets all


other criteria enumerated by the local
government. 163.3194(3), Fla. Stat.
(1985).
Given this statutory definition
any decision which is shown to fal)
within the parameters and reason-
able interpretations of the plan
should be upheld even if a different
decision would also be consistent
with the plan. This is the biggest
flaw in the Snyder approach: the pre-
sumption that the maximum density
established for a parcel in a plan's
Future Land Use Element must be
given to a landowner. It is on this
point that the Sunbelt Equities opin-
ion exhibited the superior under-
standing of the legal effect of a "fu-
ture" land use map. Even the First
District, in Leon County v. Mon-
ticello Drug Company, et al, 18
F.L.W.D 1307 (Fla. 1st DCA 1993)
a case which found rezonings to be
legislative agreed that future land
use elements only establish long
range maximums and not an imme-
diate right to a particular density.

Conclusion

The Snyder case reflects the ap-
propriate judicial response to the A
changed role of zoning decisions af- '
ter the Growth Management Act.
However, both Snyder and cases
which have followed Snyder have
gone too far. For example, Puma v.
City of Melbourne, Case No. 90-
100222-CA-x/s (Fla. 18th Cir. Ct.
amended order filed May 13, 1992),
appeal pending, 5th DCA Case No.
92-01038, which held that site-
specific plan amendments are quasi-
judicial is not a warranted extension
of this change. Indeed, if the reason
rezonings are quasi-judicial is be-
cause the legislating is now being
done at the planning stage, it is a
Catch-22 to call plan amendments
quasi-judicial. A local government
must retain the ability to legislate
at some point in the process.
In deference of the courts, the leg-
islature did not provide adequate gui-
dance as to the procedures and
standards to be involved in plan con-
sistency challenges. Neither did it
address the relationship between
these statutory actions and the cer-
tiorari or declaratory action reme-
dies. Here's hoping the Supreme '
Court issues an opinion in Snyder
which reconciles these issues, and
ensures both public access to the lo-







cal zoning process and meaningful
judicial review. I, for one, think that
a functional, realistic approach to
the issues, as opposed to an overly
formulaic one, can yield such a re-
sult.

Richard J. Grosso is legal director
for 1000 Friends of Florida, where


he is responsible for working with its
litigation committee to monitor and
participate in administrative andju-
dicial proceedings that impact the
Growth Management Act. A former
senior attorney at the Department of
Community Affairs, Mr. Grosso was
involved primarily in comprehensive
plan litigation and rule challenges


in the department. He served as as-
sistant general counsel at the Depart-
ment of Environmental Regulation
from 1986 to 1989, and interned in
the Office of the Speaker of the Flor-
ida House of Representatives while
attending law school at the Florida
State University College of Law.


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LECTURE PROGRAM
Friday, November 12, 1993
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