tag:blogger.com,1999:blog-5288319.post115541285505633498..comments2019-01-08T04:47:19.004-05:00Comments on Florida Land Use Law: 5th Flip Flops on Rehearing - Best Diversified does NOT get an Inverse Condemnation Judgment (or File that Bert Harris Claim Right)Roberthttp://www.blogger.com/profile/14768584961111918833noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-5288319.post-62343123436064768882007-07-01T09:29:00.000-04:002007-07-01T09:29:00.000-04:00Well, if DEP did not declare it a nuisance, then t...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. <BR/><BR/>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.Roberthttps://www.blogger.com/profile/14768584961111918833noreply@blogger.comtag:blogger.com,1999:blog-5288319.post-1155930485070985182006-08-18T15:48:00.000-04:002006-08-18T15:48:00.000-04:00Bob, in your attack of DEP over the "declaration o...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. <BR/>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.Anonymousnoreply@blogger.com