Fifth DCA – Legislative Intepretation and the Scope of the Agricultural Exemption fromERP Permitting

A. Duda and Sons v. St. Johns River Water Management District, 22 S.3d 622, 34 Fla. L Weekly D1454 (Fla. 5^th DCA July 17, 2009)

In A. Duda and Sons v. St. Johns River Water Management District, the 5^th DCA rejected the Water Management District’s efforts to construe the “agricultural exemption” language of Sec. 373.406(2), Fla. Stat., to make the exemption essentially meaningless – while also rejecting Duda’s interpretation that would focus on its subjective intent. The language at issue states:

Nothing herein, or in any rule, regulation or order adopted pursuant hereto, shall be construed to affect the right of any person engaged in the occupation of agriculture, silviculture, floriculture or horticulture to alter the topography of any tract of land for purposes consistent with the practice of such occupation. However, such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters.

The fight: the District took the view than any action that had the effect of more than “incidentally” impounding or obstructing any surface water was not exempt; Duda argued that the “purpose” language made the limit on the exemption dependant on proof of intent to impound or obstruct surface water. The Court rejected both, holding that intent was not at issue. But the court concluded that an alteration of topography had to be more than incidental and the Water Management District’s rules using that standard violated the statute.

While the decision is substantively important for people who practice in this area, what is more generally important is the Court’s (1) recognition that the issue was one for de novo interpretation of the statute (rather than for deference to the District’s interpretation) and (2) the approach the Court takes in resolving the language in the statute. This decision demonstrates the power of effective judicial review and why local government ordinances and interpretations should be subject to the same level of scrutiny.

2d DCA Upholds Issuance of Permits to Phosphate Mine; Clarifies Standing and Cumulative Impact

Peace River/Manasota Regional Water Supply Authority et al v. IMC Phosphate et al, 34 Fla. L. Weekly D348 (Fla. 2d DCA 2009)

Charlotte County v. IMC Phosphate et al, 34 Fla. L. Weekly D357 (Fla. 2d DCA 2009)

In Peace River/Manasota Regional Water Supply Authority et al v. IMC Phosphate et al, the Court found that the users of waters below a proposed phosphate mine had standing to challenge the permit (well, duh). The Court also held that the DEP’s approach to dealing (or not dealing, from the petitioners' point of view) with cumulative impacts was legally justified, particularly by focusing on the statutory language regarding “adverse impacts” and the agency's authority to interpret the statute. The Court noted that reasonable assurences had to be made to address "adverse impacts" and not all impacts.

In Charlotte County et al v. IMC Phosphate et al, which involved the same permitting decision but different parties, the Court held that DEP did not violate Chapter 120 or due process by remanding the ALJ’s recommended order for additional findings regarding potential permit conditions. In effect, the DEP action allowed the applicant to add evidence regarding additional mitigation conditions that would allow the permit to be issued. The Court rejected the claims by Charlotte and Sarasota County that this action illegally gave IMC the opportunity to amend its application.
What is very interesting and critical in this decision is the Court’s recognition that under the permitting process, “The mining of phosphate is statutorily regulated, not because it is illegal, but rather to insure that the business may operate effectively without harming the public or the environment.” This is clearly true of almost any permitting process. The Court’s position is that this allows the agency to issue a permit under such terms as may comply with the statutory requirements, even if those terms are not all found in the initial application.
Critical to the decision was that DEP determined that the ALJ had misinterpreted and applied policy with the result that the relevant issues were not fully explored in the first hearing and order.

1st DCA Remands Fee Award in Non-Meritorious Comp Plan Challenge for Additional Findings

Brown v. Panhandle Citizen’s Coalition et al,

The court found that the ALJ’s opinion awarding fees was “well reasoned” in a case where a plan amendment was challenged, but that it lacked sufficient findings regarding the number, reasonableness and value of the fees expended, so the Court “reluctantly” remanded.

5th DCA - Landmark Takings Case: Off Site Exaction a Taking under Nollan/Dolan Where Applicant Refused Permit Due to Condition

This one came out in early January, and I'm surprised that I didn't hear the gnashing of teeth in Palatka all the way down here in Sarasota.

In what is now pretty much an epic, decade long battle, the 5th DCA in St Johns Water Management District v. Koontz, handed the water management district a major defeat and, in the process, put all government entities on notice that predatory exaction policies may create takings liability.

In the very short version, the water management district conditioned a permit for Koontz property to require significant off-site mitigation in the form of improving drainage facilities. The mitigation was supposedly to offset impacts to a small portion of the property that is within a "Riparian Habitat Protection Zone". Koontz refused to accept the condition, and the District denied the permit.

I don't think a short recap can do the facts justice; you have to read the case - and the four other opinions that have been generated on the way. The long and the short of it is that the circuit court didn't buy that the off site exaction was in any way rationally related to any demonstrable impacts to the protected property, and found that that the exaction violated the Nolan/Dolan nexus and was therefore not just an unconstitutional condition, but one that resulted in a taking of Koontz' property.

The District appears to have had three arguments: First, that the Nollan/Dolan rule didn't apply because (1) only money, not land, was involved, and (2) the exaction was offsite. The court pretty quickly (and I think correctly) did away with that argument.

The second claim was that Koontz couldn't complain because he refused the permit. This took a little longer to address, and its the part that everyone needs to read very carefully.

The third argument went something like "we could have denied the permit anyway, so there wasn't any damages." This took the court a long time to address, and completely got the dissent tangled up. The majority held, in effect, that once the government put the demand on the table, it was stuck with it. But the court got tangled up in the "right to the permit" argument in a way that reflects wrong thinking.

Everyone seems to have taken the position that the District could have denied the permit and there would have been no issue; that Koontz had "no right to the permit." But that's not really true. In Florida, there's a right to use property in any lawful manner. When the government adopts regulations and requires permits, it does not remove the underlying right - it subjects it to regulation. That is, the existence of regulations on the use of land does NOT convert the right to use land into a license from the government - something that the landowner is allowed to do by the grace of the government.

So while it's one thing to suggest that a property owner must demonstrate compliance with regulations, it's another thing altogether to suggest that a local government or agency has the right to simply deny permits where the criteria are otherwise met. And if the criteria are not met, the government really has an obligation to be able to state specifically why not, so that the landowner can comply.

Recognition of this fundamental aspect of the regulation of land might have saved both the majority and the dissent a great deal of confusion and circular logic.

And to anyone who thinks this opinion goes way too far, I suggest you read the other Koontz opinons to get a flavor for what the District has been demanding and the fact that it has been held repeatedly to be unjustified - this history plays out what would happen in many concurrency and environmental exaction cases if the landowner had the time and money to keep fighting.

IMPLICATIONS:
This case has huge and immediate implications for every land use permitting process, especially those where the local government routinely extracts commitments far in excess of what would legally be proper in order.

But perhaps most important, this may discipline the "concurrency moritoria" extortion racket that many local governments have been practicing. Core issue: many local governments have adopted levels of service - particularly for roads- that they cannot maintain and achieve based on the adopted CIP (which now should be "financially feasible" meaning that LOS's will be met - but they are not). This creates "concurrency moratoria" - areas where the planned improvements in the 5 year (or long range) CIP don't create enough capacity to allow development that is otherwise consistent with the comp plan and LDRs to be approved.

The concurrency management system itself generates and proves the "demand" for the excessive exaction - the ordinances already say that the development can't be approved without concurrency, and the concurrency system requires a proportionate share or development agreement that provides all the improvements needed, whether or not it's proportionate.

And most governments have not adopted "proportionate share" concurrency regulations that address it and guarantee that the development only has to pay a proportionate share of the needed improvements. Lots of reasons, but mostly that they want to create a moratorium and address it through - ta dah - a development agreement or a condition in a development approval that requires the developer to pay more than a proportionate or fair share.


After this decision, any local government that has been doing that - or does it in the future- is at significant risk. Back in the early 90's, everyone was convinced that this risk would be from "temporary concurrency moratoria" under a combination of Lucas and First English. Now, they're back under Nolan/Dollan and the clear over-reaching of the government.

Ok, An APA Geek Case to Be Sure, But Important for Appeals

In Cocktails Plus v. Dep't of Prof & Bus. Svc, the 1st DCA held that it had jurisdiction over an appeal of a Final Order. The agency issued a "Final Order" on February 19, 2007. That "order" did not include rulings on the exceptions to the DOAH judge's Recommended Order. The agency then issued an Amended Final Order on March 9, 2007.

The Court issued an order to show cause why the appeal should not be dismissed:

Upon the Court's own motion, the appellant is hereby directed to show cause,
within ten days from the date of this order, why this appeal should not be
dismissed as untimely. Specifically, it appears to the Court that an earlier
final order was entered by the Division on February 19, 2007. Because it is
unclear to the Court whether the changes made by the Division in its "Amended
Final Order" were material, it is not apparent whether the instant order
restarted the time to file an appeal. See St. Moritz Hotel v. Daughtry, 249 So.
2d 27 (Fla. 1971); Maxfly Aviation Inc. v. Capital Airlines Ltd., 843 So. 2d 973
(Fla. 4th DCA 2003). The appellant shall attach to the response copies of the
February 19, 2007, original final order, as well as any motion that may have
delayed rendition of this order. If any additional pleading or order is
referenced in the response, a copy of the document shall be attached to the
response. Failure to timely comply with this order may result in the imposition
of sanctions, which may include dismissal of the appeal, without further
opportunity to be heard. See Fla. R. App. P. 9.410

When it looked at the orders, it decided that the agency's failure to address exceptions in the first order rendered it "non final" (despite its title) and that the Court therefore had jurisdiction. Here's the language, for future use:

The Final Order, which had been filed with the agency clerk on February 19,
2007, was not final and therefore did not start the time to file a notice of
appeal. Cf. St. Moritz Hotel v. Daughtry, 249 So. 2d 27 (Fla. 1971); Maxfly
Aviation Inc. v. Capital Airlines Ltd., 843 So. 2d 973 (Fla. 4th DCA 2003).
Specifically, the Final Order did not consider, or make explicit rulings on,
the exceptions to the recommended order that were filed by the appellant. See
§ 120.57(1)(k), Fla. Stat. (2006). An administrative order that does not
bring the administrative adjudicative process to a close does not dispose of
the case and is not final. See Hill v. Division of Retirement, 687 So. 2d
1376, 1377 (Fla. 1st DCA 1997).

SO, all you folks out there, we now know that an Amendment in a Final Order to address exceptions is a material change that resets the appeal date.

Moreover, based on this opinion, if a Final Order does NOT address exceptions the order is not actually final. Therefore, the proper course of action would be to file for rehearing/reconsideration, rather than a notice of appeal to get the exceptions considered. But what happens if you file the motion for rehearing/reconsideration and the agency does nothing before your time to appeal runs? Do you have to file your appeal (to what is now, legally, a non-final order) by the 30th day? I would. What happens if the more narrow window for filing a motion for rehearing closes? Have you waived your right to complain?

Any comments from APA gurus?

Important if Confusing Administrative Appeal Standing Case

In Jupiter Inlet District v. Thibideaux, the 4th DCA issued an important but confusing ruling that confirmed that the District had standing to challenge a dock permit but did not have standing to challenge on appeal the DOAH Admininstrative Law Judge's determination that the dock violated a riparian line standard because it was not affected by that aspect of the dock.

Under the 4th DCA's intepretation of standing to challenge an administrative decision, a party with substantial interests that create standing to participate in the 120.57 formal hearing must demonstrate a substantial inteterst that is negatively affected for every ruling that the party wishes to challenge.

This seems to be a fairly radical extension of the LEAF and O'Connell cases (which have been discussed in earlier posts), and could create serious complications to challenges to jurisdiction or other procedural matters on appeal. Anyone who works the APA side of things should track how this case is used in the future.