Saturday, August 12, 2006

5th Flip Flops on Rehearing - Best Diversified does NOT get an Inverse Condemnation Judgment (or File that Bert Harris Claim Right)

In an opinion on rehearing that seems to have taken over a year (here's the link), the 5th DCA reversed its decision (well, to be clear, Judge Sharp changed sides), and found that the circuit court erred in finding that a construction and debris landfill suffered a taking when a) both the County and the DEP clearly and almost admittedly changed their rules just to deny permits to that particular landfill, and b) there was massive issues in what needed to be done to close it.

The facts seem all over the place if you compare the opinions, at least insofar as they apply to whether the landfill could accept fill to be closed. Judge Sharp seems to have switched sides based on a view that the county would have allowed the owner to pay to have clean fill brought in to close the landfill -- even thought that isn't a "use" and wouldn't leave the property with other uses. The landowner appears to have wanted to have a permit to bring in clean C&D fill to cover the other fill.

OK, so the taking goes down. One thing that I find a serious issue in both opinions is that they find no taking in the denial of permits to continue operating the landfill under the "nuisance" exception of Lucas. The problem is that no-one ever tried to shut down the operation as a nuisance. They simply claimed "issues" that were "nuisance like" in the permitting process. The problem is that actual nuiscance doctrine always involves balancing -- an activity isn't always a nuisance just because it has some objectionable characteristics.

Let's be clear: the 5th found the DEP found that the activity was a public nuisance. But such a determination is an action in tort. DEP has never been given any authority to try nuisance torts. AS A MATTER OF THE SEPERATION OF POWERS, DEP DOES NOT HAVE THE AUHTORITY TO DETERMINE AND DECLARE A LANDFILL TO BE A PUBLIC NUISANCE. Those powers are set forth in section 403.704, Fla. Stat. and permit standards are set forth in sectin 403.707. While the Dep't has LOTS of ennumerated powers, the power to declare a public nuisance is not one of them. But, hey, when did a little thing like not having the power to abrogate the common law stop a zealous agency attorney (what, his/her oath as an attorney? respect for the constitution? ) ?

The court's approach here seems to indicate that if there is anything objectionable, the local government or a state agency can declare a nuisance without having to litigate the nuisance under the common law, and evade takings responsibility at the same time.

BUT THE BIG issue is that the landowner might have succeeded in a Bert Harris claim (which he won below) except that the 5th found (in a footnote) that he had not complied with the statutory requirement of filing a claim. It also found that Bert Harris liability doesn't attach to the abatement of a public nuisance. But if the landowner HAD filed the appraisal, at least there would be a reasonable fight over damages under that Act. Moreover, even if the denial of the landfill were not compensable, if there were no other uses left to the property, there may have been Bert Harris liability anyway.


  1. Keith Williams3:48 PM

    Bob, in your attack of DEP over the "declaration of nuisance", you miss two vital points: 1)The application required under F.A.C. Rule 62-701.730 is authorized under the DEP's general authority over pollution control under Chap. 403 F.S. DEP never declared the property (either in situ or as operated) to be a public nuisance. It considered whether Huff's activity would have been injurious to public health, safety, and welfare when considering his permit application under rules promulgated pursuant to Florida's Pollution Control Act. DEP simply took the complaints of the neighbors and its own findings about the source of noxious odors and gases into consideration when determining whether to grant Huff a permit to continue the requested activity. Don't blame the DEP attorney or the judge for Huff's failings (which leads to the second and more important issue); 2) Huff expressly accepted the final agency action and its underlying rationale for the permit denial and took his chances on an inverse or Bert Harris claim.
    Had he fought the denial and created the factual record, maybe the judges would have been able to determine that DEP was wrongfully enforcing a private tort claim or forcing him to "bear an inordinate burden". The court saw right though his attempts to circumvent the rules by characterizing his planned activity as something it was not. (having his own engineer testify against him didn't help--where was the attorney prep on that one?). His own legal strategy in accepting agency action may have prevented him from having a better inverse claim.

  2. Well, if DEP did not declare it a nuisance, then the author of the opinion misread the record or effect of DEP's decision to put a spike in the Bert Harris claim coffin. Surprise, surprise.

    Note that (perhaps differently than under takings) you don't have to challenge the agency/local government denial in order to proceed under Bert Harris, and under the clear terms of the statute, the court is to make its own decision regarding whether the activity is a nuisance. If the Bert Harris claim had been properly set up here (by filing the proper appraisals), it might have had a different outcome under the Act.