Graham v. Estuary Properties, Inc.
| Decision Date | 16 April 1981 |
| Docket Number | No. 58485,58485 |
| Citation | 399 So.2d 1374 |
| Parties | , 11 Envtl. L. Rep. 20,992 Bob GRAHAM, et al., Petitioners, v. ESTUARY PROPERTIES, INC., et al., Respondents. |
| Court | Florida Supreme Court |
Jim Smith, Atty. Gen., Kendrick Tucker, Deputy Atty. Gen., and Richard A. Hixson and Thomas R. Tedcastle, Asst. Attys. Gen., Tallahassee, Julie O'Connor, Charles L. Siemon and Fred P. Bosselman of Ross, Hardies, O'Keefe, Babcock & Parsons, Chicago, Ill., James T. Humphrey, Fort Myers, David E. Bruner, Marco Island, Neal D. Bowen, Sanibel, David Gluckman, Tallahassee, P. Kevin Davey of Douglass, Davey & Cooper, and C. Laurence Keesey and Mary Clark, Tallahassee, for petitioners.
Gary P. Sams, Wade L. Hopping and Richard D. Melson of Hopping, Boyd, Green & Sams, Tallahassee, and Howard S. Rhoads of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, Fort Myers, for respondents.
Ann P. Gailis, Dept. of Justice Land and Natural Resources Division Policy, Legislation and Special Litigation Section, Washington, D. C., amicus curiae for United States.
Harry A. Stewart, Gen. Counsel and Gerald L. Knight, Asst. Gen. Counsel, Fort Lauderdale, amicus curiae for Broward County.
Robert A. Ginbsburg, Dade County Atty. and Stanley B. Price, Asst. County Atty., Miami, amicus curiae for Dade County.
Louis F. Hubener, Asst. Gen. Counsel, Tallahassee, amicus curiae for State of Florida Dept. of Environmental Regulation.
Robert G. Saberson, Delray Beach, amicus curiae for the City of Delray Beach and the Treasure Coast Regional Planning Council.
George G. Collins, Jr. and Anthony C. Soviero of Collins, Brown, Caldwell & Evans, Vero Beach, amicus curiae for Indian River County.
Henry G. Manne, Director and Distinguished Professor of Law, John H. Moore, Associate Director and Research Professor of Economics, Peter H. Aranson, Special Research Administrator and Research Professor, and John Metcalf, and John M. Olin Fellow, Law and Economic Center, University of Miami School of Law, Coral Gables, and Earl B. Hadlow, William H. Adams, III, Mark C. Taylor and James T. R. Jones of Mahoney, Hadlow & Adams, Jacksonville, Thomas G. Pelham, Professor of Law, amicus curiae in pro. per.
Parker D. Thomson, Jerold I. Budney and Douglas M. Halsey of Paul & Thomson, Miami, amicus curiae for Greater Miami Chamber of Commerce.
Gary D. Lipkin, Asst. Gen. Counsel, Washington, D. C., amicus curiae for National Association of Manufacturers of the United States of America.
Stephen T. Dean and Darryl M. Bloodworth of Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, Orlando, amicus curiae for the Florida Association of Realtors.
William L. Earl and Paul H. Amundsen of Peeples, Earl, Smith, Moore & Blank, Miami, amicus curiae for Deltona Corp.
Ronald A. Zumbrun and Thomas E. Hookano, Sacramento, Cal., and Raymond M. Momboisse and Chrisopher H. Collins, Washington, D. C., amicus curiae for Pacific Legal Foundation.
Robert M. Rhodes and Terry E. Lewis of Thompson, Messer, Rhodes, Vickers & Hart, Tallahassee, Gus Bauman, Washington, D. C.; Stephen W. Metz, Tallahassee, and Philip S. Parsons of MacFarlane, Ferguson, Allison & Kelly, Tallahassee, amicus curiae for Florida Home Builders Association, National Association of Home Builders and Florida Chamber of Commerce.
Chesterfield Smith and Julian Clarkson of Holland & Knight, Tampa, amicus curiae for Florida Phosphate Council, Inc.
This case is before the Court for review of a district court decision reported at 381 So.2d 1126 (Fla. 1st DCA 1979). We affirm in part and reverse in part.
Estuary Properties, Inc., owns almost 6,500 acres of land in Lee County on the southwest coast of Florida near Fort Myers. The site includes substantial wetlands along Estero, San Carlos, Hurricane, and Hell-Peckish Bays and is a sensitive ecological environment. Tidal waters flush daily through about 2,800 acres of predominantly red mangroves on the edge of the bays. Some 220 days a year these tidal waters move through the red mangroves into the predominantly black mangrove forest which covers approximately 1,800 acres that Estuary wants to dredge or fill. The remaining 1,800 acres begin at the salina and range from two to five feet above mean sea level. Only 526 acres of the total area have been identified as dry enough to be classified as nonwetlands.
On June 18, 1975, Estuary applied to the board of county commissioners of Lee County for approval of a development of regional impact (DRI) pursuant to section 380.06, Florida Statutes (Supp.1974). 1 Estuary's plan provided for no construction on the 2,800 acres of red mangroves but contemplated destroying the 1,800 acres of predominantly black mangroves. In their place a 7.5 mile "interceptor waterway" would be constructed, and the fill from the waterway (and from twenty-seven lakes to be dredged) would be used to raise the elevation of the remaining land for construction. Estuary contended that the waterway and the lakes would replace the functions of the black mangroves in the ecosystem. Estuary's plan called for the eventual construction of 26,500 dwelling units with an estimated eventual population of 73,500, eleven commercial centers, four marinas, five boat basins, three golf courses, and twenty-eight acres of tennis facilities.
The development proposal was submitted to the Southwest Florida Regional Planning Council (SWFRPC), which prepared a report pursuant to section 380.06(8). Based on this report SWFRPC recommended that the board of county commissioners deny the application.
After public hearings, the board adopted the SWFRPC findings and recommendations and concluded, inter alia, that the proposed development would cause the degradation of the waters of Estero and San Carlos Bays. This degradation would adversely affect both the commercial fishing and shellfishing industries, as well as the sport fishing industry, resulting in an adverse economic impact on Lee County and the region. The board denied both the increase in zoning density and the application for development approval. The commissioners listed twelve conditions which would have to be met before they would approve a development order. The first condition was that Estuary submit an amended DRI application for development approval for a maximum density of two units per acre. Such density would allow Estuary to construct 12,968 residential units as well as commercial facilities. Other conditions included eliminating the destruction of such large acreages of mangroves 2 and giving consideration to a system of collector swales to deliver the drainage overflow over the marshland borders of the development in a manner that would not violate applicable state water quality standards for the receiving bodies of water. 3
Estuary appealed this order to the Florida Land and Water Adjudicatory Commission pursuant to section 380.07, Florida Statutes (1973). After a five-day hearing de novo requested by the developer, the hearing officer found that destruction of the black mangroves would have an adverse impact on the environment and natural resources of the region. He concluded that the interceptor waterway would not adequately replace the functions of the mangroves and that removing them would greatly increase the risk of pollution to the surrounding bays, thus adversely affecting the area's economy. The hearing officer found that requiring the landowner to refrain from degrading state-owned waters was a reasonable restriction on this land required by chapter 380; consequently, he recommended denial of the appeal. The Land and Water Adjudicatory Commission adopted his recommendation and entered a final order denying the appeal. 4
Estuary sought judicial review in the First District Court of Appeal. That court granted relief and remanded the case to the adjudicatory commission with instructions to enter an order granting Estuary permission to develop its property, including the mangrove acreage, unless Lee County commenced condemnation proceedings on the mangrove acreage lying below the salina. The adjudicatory commission and Lee County have sought review by this Court.
The decision of the district court is divided into two points. Simply stated they are:
I. Denial of Estuary's application for development approval violates the provisions of chapter 380, Florida Statutes (1973 and Supp.1974).
II. Denial of Estuary's application constitutes a taking of private property for public use without compensation in violation of the United States and Florida Constitutions.
The district court found that chapter 380 requires a balancing of the interests of the state in protecting the health, safety, and welfare of the public against the constitutionally protected private property interests of the landowner. In this respect we agree with the district court. Although the act does not expressly mandate balancing, such legislative intent is clear from the stated purpose of the act 5 and the factors enumerated in section 380.06(8), 6 which the regional planning agency must consider in making a DRI recommendation. The act specifically states that private property rights are to be preserved. § 380.021, Fla.Stat. (1973). Therefore, the only way to logically and feasibly apply the act is by balancing the often conflicting interests according to the considerations listed in section 380.06(8).
The district court found that the adjudicatory commission had not balanced the considerations in section 380.06(8) noting that the commission found favorably on four of the considerations and unfavorably on only two. According to the district court, the adjudicatory commission ruled against the development only because the commission found an adverse environmental impact would result and because the proposed development deviated from the policies of the planning agency.
There is no evidence, however, that the commission did not balance the factors. Balancing in...
To continue reading
Request your trial
-
Orion Corp. v. State
...281 S.C. 201, 314 S.E.2d 327 (1984); Wyoming Borough v. Wyco Realty Co., 64 Pa. Commw. 459, 440 A.2d 696 (1982); Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.1981), cert denied, Taylor v. Graham, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981).20 In Pacesetter Constr., we rej......
-
Treister v. City of Miami
...and United States' constitutions and citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922)). In Graham v. Estuary Properties, Inc., the Florida Supreme Court explicitly relied upon federal takings cases in determining the factors to consider when deciding wh......
-
St. Johns County v. Owings
...zoning body is not a court. Thus, there really are not two sets of reviewing courts in these types of cases. See Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.1981), cert. denied, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981). The only court decision in such cases is that of......
-
Coastal Petroleum Co. v. American Cyanamid Co.
...harmful activities. See, e.g., Atlantic International Investment Corp. v. State, 478 So.2d 805 (Fla.1985); Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.1981), cert. denied, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 Contrary to the various suggestions that the present cases per......
-
Building a Better State Endangered Species Act: An Integrated Approach Toward Recovery
...generally has “relied on diminutions well is excess of 85 percent before inding a regulatory taking”); Graham v. Estuary Properties, 399 So. 2d 1374, 1382, 11 ELR 20992 (Fla. 1981) (75% reduction in value not a taking); Susan L. Trevarthen, Advising the Client Regarding Protection of Proper......
-
Lucas v. South Carolina Coastal Council: the categorical and other "exceptions' to liability for Fifth Amendment takings of private property far outweigh the "rule".
...Id. at 768. (218) Id. (219) Rowe v. Town of North Hampton, 553 A. 2d 1331, 1335 (N.H. 1989); accord Graham v. Estuary Properties, Inc., 399 So. 2d 1374, 1382 (Fla. 1981); New Hampshire Wetlands Bd. v. Marshall, 500 A.2d 685, 689 (N.H. 1985); Claridge v. New Hampshire Wetlands Bd., 485 A.2d ......
-
A River Used to Run Through It: Protecting the Public Right to a Sustainable Water System
...404, 412 (Conn. 1991) (calling the natural state standard “plausible” but choosing not to reach it); Graham v. Estuary Props., Inc., 399 So.2d 1374, 1382 (Fla. 1981) (adopting Just and agreeing with that court’s “observations” about “exceptional circumstances” around wetlands). See also Nei......
-
Taming the Takings Tiger
...owners must be understood to have transferred their full property rights in conveying the lot." [46] Graham v. Estuary Properties, Inc., 399 So.2d 1374,1382 (Fla.1981); Maine Land Use Regulation Comm'n v. White, 521 A.2d 710 (Me.1987); Claridge v. New Hampshire Wetlands Board, 485 A.2d 287 ......