Fourth Quarter 2011: Recent Florida Environmental and Land Use Case Law

Continuing my Florida environmental and land use case law updates, I summarized the cases below with my co-author in the latest newsletter of the Florida Bar's Environmental and Land Use Law Section.

• Miami-Dade Cnty. v. Torbert, 
• 36 Fla. L. Weekly D1674a 
• (Fla. 3d 
• DCA Aug. 3, 2011), holding that plat restrictions must be incorporated and reference into a deed to be valid.
• St. Johns River Water Mgmt. Dist. v. Molica, 2011 WL 3627412 (Fla. 5th DCA Aug. 19, 2011), declaring that Water Management Districts have the power to create an administrative rule requiring environmental resource permits (ERP) for dredging and filling of surface water and wetlands.
• Bush v. Mexico Beach, 2011 WL 4345169 (Fla. 1st DCA Aug. 31, 2011), confirming previous case law requiring comprehensive plan consistency challenges after a local government hearing to be brought in de novo proceedings in circuit court, but allowing challenges to the hearing based on other reasons to be brought as certiorari proceedings.
• Mickel v. Norton, 2011 WL 4415353 (Fla. 2d DCA Sept. 23, 2011), holding that property owners do not have a riparian right to an unobstructed view of the water body unless the property directly borders it.
• 1000 Friends of Fla., Inc. v. Palm Beach Cnty., 2011 WL 4577746 (Fla. 4th DCA Oct. 5, 2011), stating that comprehensive plans are to be interpreted using the same rules of construction as statutes.
• West Palm Beach v. Roberts, 2011 WL 4949795 (Fla. 4th DCA Oct. 19, 2011), affirming a decision holding a city liable for inverse condemnation where it demolished a structure without giving the owner adequate notice.
• Pembroke Ctr., LLC v. Fla. Dep’t of Transp., 64 So. 3d 737 (Fla. 4th DCA 2011), denying an inverse condemnation claim where there were mere "planning activities" but no loss of activities.

You can detailed description in this quarter's newsletter. Please email me new cases we should review.

Property Owners Ask U.S. Supreme Court for the Right to Challenge EPA Compliance Order in Court

Today, the U.S. Supreme Court heard Sackett v. EPA, a case with important implications to anyone owning property with wetlands--or something close enough to wetlands to attract the the Environmental Protection Agency's (EPA) attention.

In the case before the Court, EPA stopped the Sacketts from building on a residential lot they owned. Because the EPA alleged the Sackett's lot contained protected wetlands, it issued a compliance order. If the Sacketts did not comply, they would have been subject to fines of up to $37,500 per day, or more. So far, the Sacketts have been denied review of the compliance order:

Stymied, the Sacketts sought a hearing to contest the EPA's order. They insisted the half-acre lot, which they had bought for $23,000, was not wetlands. But their hearing request was turned down by a federal judge in Idaho and by the 9th Circuit Court of Appeals in San Francisco. 

Agreeing with the EPA, the judges said the compliance order was like a warning to the landowners that they were violating the law. They weren't entitled to a hearing under the law until the agency had imposed a fine on them, the appeals court said.

The Sacketts, with the help of the Pacific Legal Foundation, have had to take their case all the way to the U.S. Supreme Court, just to try to get the right to have a court review EPA's actions. Thus, the question before the Supreme Court is this:

When the Environmental Protection Agency believes that a landowner is engaged in a violation of environmental laws, it may issue an administrative compliance order requiring the landowner to take certain actions and seek judicial enforcement of the order if the landowner does not comply. May the landowner challenge the administrative compliance order in court before the EPA seeks judicial enforcement?

At oral argument, many of the justices seemed skeptical of what Justice Scalia called EPA's "high handed" approach and attitude. Robert Thomas found the most telling quote of the day: Justice Alito asked, "Don't you think most ordinary homeowners would say this kind of thing can't happen in the United States?" 

The New York Times wrote that a win for the Sacketts would be a win for those who want to "evade the requirements of the Clean Water Act." But what's so difficult about requiring the EPA to support its actions before a judge?