Sunday, October 07, 2007

How Do You Challenge Unpermitted Activity?

In Johnson et al v. Gulf County, the 1st District overturned a circuit court's dismissal with prejudice of a neighbor suit claiming improper activities in wetlands.

In one count, the neighbors had claimed under section 163.3215 that the activities violated various provisions of the comprehensive plan. The problem (like in Das v Osceola County) was that the county never issued a development permit for the activities because the county apparently either views the areas as "not wetlands" or views the activities as not needing permits, even if they are wetlands.

Question 1: is altering wetlands "development" ? Probably, if it is in anticipation of any construction activity - look at 380.04.

Question 2: if a local government fails to issue a "development order" to control an activity that constitutes "development," what is the remedy? Under Das v. Osceola County, the right under the statute to get temporary relief or relief to "prevent action" on a development order led the court to conclude that there was an obligation to issue some kind of public document that constituted an authorization to develop so that it could be challenged. In that case (which involved a pipeline), the County then issued a letter authorizing the activity (which the complaining neighbors then did not timely challenge b/c they thought they had the right to something more - oops, they didn't).

Here, it would seem that at the least the neighbors could write the county demanding that some authorization to proceed be granted, so that the same could be challenged.

Alternatively, the 1st DCA seemed to be leaving the door open to the Johnson's to try to re-pled nuisance. Here's an interesting question: is there a cause of action for "per se" nuisance where an activity (a) constitutes development; (b) does not have or does not require a "development order" under local land development regulations. and (c) is claimed to be inconsistent with the plan? There is a very good argument that there is a such a claim, so long as the plaintiff can establish common-law standing to bring the claim. The "exclusive" jurisdiction provision of 163.3215 applies only to claims that development orders are inconsistent with the plan, and it is clear from various provisions, including 163.3194, that developing inconsistent with the plan is unlawful.

It will be very interesting to see how this one proceeds on remand.


  1. Anonymous3:35 PM

    Robert: If the wetlands are jurisdictional under state law, there is a cause of action under s. 403.412, Fla. Stat. If federal jurisdiction, there may be a Clean Water Act cause of action. Both require prior notice to the agency and have attorneys fees provisions.

    Dan Thompson

  2. It's not discussed in the opinion, but I think there's an issue of whether these are jurisdictional. I viewed the oral argument a while back but can't remember the details.

    What is interesting is whether there would be a cause of action if all of the government agencies looked at a piece of land and determined it not to be a wetland-maybe as land that had been too altered to still qualify.

    In any case, would seem that a determined group of neighbors that includes a lawyer should be able to find some admininstrative challenge or another as a starting point, rather than having to resort to common law nuisance and the comprehensive plan.