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IN THIS ISSUE:
Legal Updates | Team Member Spotlight | Recognition | In the Media | Meet the Team
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Bear Warriors United, Inc. v. Hamilton, No. 6:22-cv-2048-CEM-LHP, 2024 WL 5279337 (M.D. Fla. December 18, 2024).
Plaintiff Survives Summary Judgment in Suit Against the Florida Department of Environmental Protection by Alleging that Wastewater Regulatory Scheme Violates the Endangered Species Act
Plaintiff brought suit against the Secretary of the Florida Department of Environmental Protection (FDEP), alleging that FDEP’s wastewater regulatory scheme and continuing enforcement thereof violates the Endangered Species Act by constituting an unlawful “taking” of manatees. The District Court for the Middle District of Florida, focusing on causation, found that the plaintiff adequately alleged an unlawful “taking” of the manatee population, and that there remained an issue of fact for a jury to decide. More specifically, the court accepted the plaintiff’s lengthy chain of causation as to the following: (1) “FDEP has regulatory authority over the wastewater discharge from wastewater treatment plants”; (2) the discharges pursuant to FDEP regulations resulted in excess nutrients in Indian River Lagoon; (3) those nutrients killed seagrasses and promoted harmful algae blooms; and (4) the death of those seagrasses have caused the “taking” of manatees under the Endangered Species Act in the past. The only issue remaining for a jury is whether there is an “ongoing risk” of manatee takings under FDEP’s regulatory scheme. This case should be monitored because it may result in a decision involving a governmental entity’s exercise of its lawfully delegated powers under the Endangered Species Act.
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Lozman v. City of Riviera Beach, Florida, No. 23-11119, 119 F.4th 913 (11th Cir. October 16, 2024).
Court Re-affirms Ripeness Requirement of a “Final Decision” by a Local Government before Inverse Condemnation Claim can be Heard
A landowner purchased property in the City of Riviera Beach, Florida (the “City”) in 2014, which was comprised of primarily submerged lands. More than 20 years prior to the purchase, the City adopted a comprehensive plan that created a “Special Preservation Future Land Use” which applied to the property and prevented “any” development of submerged lands, and which was later amended to provide for very narrow exceptions. The landowner filed a lawsuit in federal court, alleging a claim of inverse condemnation against the City for his inability to meaningfully develop the property. The Eleventh Circuit Court of Appeals dismissed the suit on the grounds that the claim was not ripe for review as there had not been a “final decision” on the development potential of the property. The Eleventh Circuit re-affirmed the principles that the mere existence of a comprehensive plan or an ordinance will not usually constitute a “final decision” such that an inverse condemnation claim is ripe for review. While the development potential of the landowner’s primarily submerged lands did not look promising, the court noted that an application for a final decision was not “futile” such that a final decision was unnecessary to establish ripeness. Because the regulations at issue contained an exception, and because the City had “not received any application,” nor had it preemptively denied one, the claim was not ripe for judicial review.
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Fairchild Bay Subdivision LLC v. Village of Palmetto Bay, No. 2023-33-AP-01, 2024 WL 4326778 (Eleventh Judicial Circuit, Miami Dade County, Appellate Division September 10, 2024).
Local Government Improperly Considered Citizen Testimony and Other Matters Unrelated to the Enumerated Rezoning Criteria in Denying Rezoning Application
The Eleventh Judicial Circuit in and for Miami-Dade County, sitting in its appellate capacity (11th Circuit) quashed the decision of the Village of Palmetto Bay (Village) denying an application to rezone property. The Village denied the rezoning, relying on public comment received at the public hearing, council member deliberation, and the site plan provided by the applicant. The applicant appealed and the 11th Circuit quashed the decision, holding that the Village both (1) failed to follow the essential requirements of law; and (2) made a decision unsupported by competent, substantial evidence. As to the former, the court noted that “[n]one of the questions, public comment or discussion by Council members were relevant to the established criteria for rezoning” and that the extensive discussion of the landowner’s site plan was irrelevant as the Village “acknowledged the site plan was not before the Council for approval.” To the contrary, the 11th Circuit noted, Village staff responded to each of the rezoning criteria in their report, and found that the rezoning would be consistent. Thus, the court was “constrained to find that the Council unjustifiably applied their own unenumerated criteria” and failed to follow the essential requirements of the law. As to the latter, the court addressed the substance of the public speakers’ statements in opposition, and noted that they “centered on the future possible traffic impact, impact on mango trees and wildlife, possible variances, and upcoming changes in the environment.” While courts cannot reweigh evidence, the 11th Circuit noted that the comments “expressed only generalized concerns and were not factually based” and that the Village’s reliance on the same could not amount to competent, substantial evidence.
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Hillsborough Cnty. v. Dibbs, No. 2D2024-0117, 2024 WL 4964807 (Fla. 2d DCA December 4, 2024).
Second-Tier Review of Rezoning Decision Results in a Final Denial of Rezoning Application where Lower Court Failed to Review the Record for Evidence that Supported County’s Denial
The Second District Court of Appeal (DCA) quashed the order of a lower court that reversed Hillsborough County’s denial of a rezoning application. The applicant sought a rezoning from a “Residential Single-Family Conventional” district to a Planned Development that would allow for lodging and an on-site treatment center. Hillsborough County denied the rezoning, primarily on the basis that the proposed “non-residential or commercial” use was incompatible with established residential uses surrounding the property. The applicant appealed, and the lower court granted the requested relief. Critically, the lower court independently found that the criteria that would make the proposed use allowable in residential areas were met, and that “the existing residence could not be deemed anything other than consistent with the surrounding residential development.” The County appealed this decision, and upon the narrower scope of review afforded by “Second Tier Certiorari,” the Second DCA quashed the lower court’s decision. The Second DCA noted that the lower court was “tasked with determining whether the record contained competent, substantial evidence to support the denial of the application based on the reasons stated in the resolution.” (emphasis added). The lower court erred by scouring the record for evidence that rebutted the County’s decision, and consequently, the lower court’s decision was quashed for departing from the essential requirements of law. This case exemplifies the highly deferential standard of review that courts must apply to quasi-judicial local government land use decisions.
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Please join us in welcoming the newest member to our team! | |
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Barry Wilcox, AICP, CPM*
Tallahassee
Director of Planning
& Development Services
850-354-7614
Email | View Bio
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Barry's Practice: Barry is an AICP certified planner and Florida Certified Public Manager with over 20 years of experience in the public and private sectors in Florida.
For nearly a decade, Barry held key managerial roles in Leon County including as the Director of Development Support and Environmental Management (DSEM), where he oversaw a multi-million dollar budget and led a team of over 70 professionals working in the fields of urban planning, environmental planning and design, construction permitting and inspection, and code enforcement.
Learn more about his arrival here.
*Non-Lawyer
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Elizabeth
Desloge Ellis
Selected as Vice President of Tallahassee Bar Association
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Vinette Godelia
Selected as Florida Trend's Legal Elite NOTABLE - Women Leaders in Law
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Jessica Icerman
Selected as Vice Chair of St. Petersburg Area of Commerce Public Policy Council
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Erin Tilton
Selected to Tallahassee Chamber of Commerce Executive Committee
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*Anastasia Barnes, Shawn Halphen, Ken Metcalf, Chris Smith, David Smith, Cynthia Spidell, and Barry Wilcox are not attorneys and are not authorized to practice law.
Anastasia, Ken, David, Cynthia, and Barry are highly experienced planners. Ken, Cynthia, and Barry are AICP certified.
Chris and Shawn are highly experienced GIS analysts.
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The information provided in this email does not, and is not intended to, constitute legal advice; instead, all information in this email is for informational purposes only. Information in this email is general in nature and may not constitute the most up-to-date legal or other information. Readers of this email should contact us or an attorney of their choice to obtain advice with respect to any particular legal matter. No reader of this email should act or refrain from acting on the basis of information in this email without first seeking legal advice from counsel. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. This email does not create an attorney-client relationship between the reader and the authors of the email or this law firm. | |
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About Stearns Weaver Miller
Stearns Weaver Miller is a Florida-based law firm with more than 150 attorneys and offices in Miami, Coral Gables, Fort Lauderdale, Tampa and Tallahassee. For over 40 years, our multidisciplinary team of attorneys and professionals have worked collaboratively to help our clients understand and resolve complex legal issues and disputes. For more information, please visit stearnsweaver.com.
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