Dade County v. National Bulk Carriers, Inc.

• Decision Date: 22 March 1984
• Docket Number: No. 62862,62862
• Citation: 450 So.2d 213
• Parties: DADE COUNTY, Petitioner, v. NATIONAL BULK CARRIERS, INC., Respondent.
• Court: Florida Supreme Court

Page 213

450 So.2d 213

DADE COUNTY, Petitioner, v. NATIONAL BULK CARRIERS, INC., Respondent.

No. 62862.

Supreme Court of Florida.

March 22, 1984.

Rehearing Denied June 12, 1984.

Robert A. Ginsburg, Dade County Atty., and Eileen Ball Mehta, Asst. County Atty., Miami, for petitioner.

Michael R. Storace of the Law Offices of Michael R. Storace, Coral Gables, for respondent.

ADKINS, Justice.

This case is before the Court for review of the decision of the Third District Court of Appeal which is reported at 419 So.2d 697 (Fla. 3d DCA 1982). This case conflicts with City of Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953), appeal dismissed, 348 U.S. 906, 75 S.Ct. 292, 99 L.Ed. 711 (1955), and Mailman Development Corp. v. City of Hollywood, 286 So.2d 614 (Fla. 4th DCA 1973), cert. denied, 293 So.2d 717 (Fla.), cert. denied, 419 U.S. 844, 95 S.Ct. 77, 42 L.Ed.2d 72 (1974).

Respondent, National Bulk Carriers, is the owner of 1,850 acres of property located in Dade County, Florida. The land was previously owned by Seadade Realty, Inc.

In 1962, Seadade sought and obtained from Dade County a rezoning of the property to the IU-3 (Unlimited Manufacturing) classification in order to construct a petroleum refinery. The approval included a conditional permission to excavate canals and a harbor and the entire application was made subject to an agreement that the applicant would not seek a building permit until Dade County had enacted a comprehensive pollution control ordinance. Two years later Seadade Realty voluntarily abandoned its oil refinery project. The county commission subsequently adopted Resolution Z-154-64 on June 16, 1964, which withdrew approval of the oil refinery without affecting the IU-3 zoning or the permission to excavate the canals and harbor.

In the ensuing years no attempt was made by National Bulk Carriers or its predecessor to develop the property in accordance with the approval granted in Resolution Z-154-64. In 1975, however, Dade County adopted its Comprehensive Development Master Plan which designated a portion of the property as "environmentally sensitive" and the remainder as "agriculture and open space." In July of 1979 National Bulk Carriers filed with the Dade County Building and Zoning Department an application for an unusual use permit to excavate a lake on its property and to fill the remainder of the land to the elevation of flood criteria. The county's Department of Environmental Resources Management (DERM) had expressed opposition to the application. Specifically, DERM observed that the filling of the lands located below the mean high water line would be contrary to the objectives of the Biscayne Bay Aquatic Preserve Act, section 258.165, Florida Statutes (1981). DERM also recognized that the project would conflict with the policies of Dade County's Comprehensive Development Master Plan and the Florida State Comprehensive Plan to preserve the land in its natural state.

National Bulk Carriers' application was heard by the zoning appeals board on June 11, 1980, and a motion to approve the application resulted in a tie vote. In accordance with the procedural rules of the zoning appeals board, the application was again presented to the board on June 25, 1980. At that time, a motion to deny the application was adopted. National Bulk Carriers appealed the decision of the zoning board to the board of county commissioners and the matter was heard on September 4, 1980. National Bulk Carriers submitted that the purpose of its application was to make the property suitable for farming. Their experts contended that the marl soil found on the upland portion of the property could be pushed aside while fill material excavated from the proposed lake would be spread throughout the property, raising its elevation to flood criteria. Thereafter, a blanket of the reserved marl would be spread over the artifically elevated land. One expert speculated that the cost of the procedure would fall between $4,000 to $7,000 per acre. The board of county commissioners denied the application with prejudice on September 4, 1980.

In January of 1981 the commission rezoned the property from IU-3 to CU (Interim Use) in order to conform to the Comprehensive Development Master Plan classification as a preservation zone. National Bulk Carriers appealed both the denial of its unusual use application and the approval of the rezoning. On a consolidated appeal, National Bulk Carriers sought judicial review contending that the county's actions constituted a taking of property without compensation. The circuit court upheld the county's action. The court noted that its opinion should not be construed as a denial of National Bulk Carriers' right to raise the taking issue in a separate action. Pursuant to a petition for writ of certiorari, the Third District Court of Appeal held that the circuit court erred in failing to resolve the inverse condemnation issue. The district court remanded the cause for further proceedings pursuant to section 373.617, Florida Statutes (1981), and the remainder of the circuit court's order was affirmed. Discretionary review was then granted by this Court.

Petitioner submits that the district court erred in remanding the cause for a determination on the taking issue because a zoning decision cannot be correct and unconstitutional at the same time. Respondent submits that the action of Dade County should be ruled a taking. However, respondent also seeks reversal of the ruling by the Third District Court of Appeal because it takes the position that the district court should have resolved the taking issue without remand.

In our recent decisions in Albrecht v. State, 444 So.2d 8 (Fla.1984), and Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 427 So.2d 153 (Fla.1982), we recognized the proposition that under certain circumstances a statute or regulation may meet the standards necessary for an exercise of the police powers and authorize a taking. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.), cert. denied, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981). In Albrecht we held that a claim of uncompensated taking constitutes a separate and distinct cause of action from an action challenging the propriety of an agency's action in denying a permit to dredge and fill. We recognized that the determination, judicially...