Osceola County v. Best Diversified, Inc.

• Decision Date: 11 August 2006
• Docket Number: No. 5D04-216.,No. 5D04-217.,5D04-216.,5D04-217.
• Citation: 936 So.2d 55
• Parties: OSCEOLA COUNTY, Florida, et al., Appellants, v. BEST DIVERSIFIED, INC., and Peter L. Huff, et al., Appellees.
• Court: Florida District Court of Appeals

936 So.2d 55

OSCEOLA COUNTY, Florida, et al., Appellants, v. BEST DIVERSIFIED, INC., and Peter L. Huff, et al., Appellees.

No. 5D04-216.

No. 5D04-217.

District Court of Appeal of Florida, Fifth District.

August 11, 2006.

Steven L. Brannock and David C. Borucke, of Holland & Knight LLP, Tampa Scott J. Johnson of Holland & Knight, LLP, Orlando, and Jo O. Thacker, Osceola County Attorney, Kissimmee, for Appellant Osceola County, Florida.

L. Kathryn Funchess, Assistant General Counsel, Department of Environmental Protection, Tallahassee, for Appellant Department of Environmental Protection.

James L. Bennett, Chief Assistant County Attorney, Clearwater, for Amicus Curiae.

Tracy A. Marshall, Mickey R.E. Ware, Dyana L. Petro and Monterey Campbell, of Gray, Robinson, P.A., Orlando, for Appellees.

ON MOTION FOR REHEARING

PER CURIAM.

Appellant, Osceola County, has filed a motion for rehearing and for rehearing en banc. We grant the motion for rehearing, withdraw our prior opinion and issue the following opinion in its place.

Osceola County ["County"] and the Florida Department of Environmental Protection ["DEP"] appeal a final judgment that awarded damages to Peter Huff and Best Diversified, Inc. ["Huff"] as the owner and operator of a landfill. We conclude there is no evidence to support a determination that either the DEP or Osceola County engaged in a taking of the property, and thus reverse the judgment in its entirety.

This case involves a forty-acre landfill operated as a construction and demolition debris facility in Osceola County.¹ The property has been used as a landfill since the 1960s. The landfill was not regulated by either the County or the DEP until the early 1990s.

In 1991, Huff's predecessor in interest obtained a five-year permit from the DEP to operate a construction and demolition debris facility on the property. A request was also submitted to the County to approve the construction and demolition facility as a conditional use of the property.² The Osceola Board of County Commissioners approved the request subject to numerous conditions. The approval was for five years and required the applicant to reapply at the end of that time for further approval.

Huff acquired the property in 1992 and the DEP's permit was later transferred to him. In 1995, residents of a nearby subdivision began complaining about odors emanating from the landfill. The cause of the problem was believed to be gypsum wallboard, one of the construction materials deposited in the landfill. When wet, gypsum wallboard emits hydrogen sulfide, a gas which smells like rotten eggs. Huff tried various methods to contain or neutralize the gas, but the complaints continued.

In March 1996, Huff applied to the DEP for a permit to continue operating at the landfill. A few months later, Huff submitted his request to the County for approval to continue the conditional use of the property as a landfill.

In November 1996, the DEP denied Huff's requested permit because of the continuing complaints from nearby residents of foul odors, investigations by the DEP which linked the odors to the landfill, and the lack of a showing that the facility would be operated in a manner to control emission of these odors. The DEP specifically found the current operation of the facility constituted a public nuisance. Huff sought administrative review of this decision and, pending the administrative process, he was able to continue operating the landfill under the permit.

In February 1997, the Osceola Board of County Commissioners denied Huff's request for a conditional use, meaning that the landfill was no longer able to operate. Odor complaints from the homeowners stopped shortly thereafter.

Huff filed another application for conditional use of the property, but that request was again denied by the Board of County Commissioners in August 1998. A year later, Huff filed this lawsuit against the County and DEP seeking damages under a theory of inverse condemnation and under the Bert J. Harris, Jr. Private Property Rights Protection Act.³

In November 1999, Huff withdrew his request for administrative review of the DEP's denial of his permit to operate the landfill. He also filed a "Notice of Acceptance of Agency Action," which provides as follows:

Plaintiffs, BEST DIVERSIFIED, INC., a Florida corporation, and PETER HUFF, hereby provide formal notice that they accept the actions of Defendants, OSCEOLA COUNTY and the STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL PROTECTION, in connection with the Defendant's denial of permit(s) to Plaintiffs for the operation of a landfill in Osceola County. Plaintiffs waive any and all rights to further challenge the propriety of the agency actions and rules. However, Plaintiffs reserve the right to maintain this action for inverse condemnation and relief under the Bert J. Harris Act.

At the trial, both the County and DEP objected to any testimony regarding the propriety of their decisions to deny conditional use approval and the issuance of a permit. The County and DEP argued Huff's failure to seek appropriate administrative relief and his acceptance of their actions rendered this evidence improper. Their objections were overruled and Huff was able to present witnesses and evidence that the facility was ordered to shut down because of political pressure from the nearby residents, even though it was never scientifically determined the facility was the cause of the odor and Huff had spent large sums to implement an odor abatement system.

The trial court determined the County and DEP simply weighed the interests of the nearby residents against the interests of Huff and concluded the residents' interests trumped Huff's. The court also determined the County and DEP had imposed standards on Huff which made it impossible for him to continue operating the facility or to close it. Thus it was unsuitable for any other use. Such actions, according to the court, constituted an ouster of Huff from his property entitling him to relief under both his Harris Act and inverse condemnation claims.

The County and DEP appealed but their appeal was dismissed for lack of jurisdiction. Osceola County v. Best Diversified, Inc., 830 So.2d 139 (Fla. 5th DCA 2002). A jury was then impaneled to determine Huff's damages. It awarded Huff $1,415,000 on his inverse condemnation claim and $1,410,000 on his Harris Act claim. Harris elected the remedy of inverse condemnation and a final judgment was entered vesting title to the property in the County and DEP and requiring them to pay $1,415,000 to Huff.

The threshold issue on appeal is whether Huff was entitled to compensation from the County and DEP when his request for a conditional use and permit were denied based on their determination the facility was the cause of noxious odors and constituted a public nuisance. The answer is clearly no. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (harmful or noxious uses of property may be proscribed by government regulation without the requirement of compensation); Keshbro, Inc. v. City of Miami, 801 So.2d 864 (Fla.2001) (regulation eliminating the value of private property effects a taking unless the purpose of the regulation is to control a public nuisance); State, Department of Environmental Protection v. Burgess, 667 So.2d 267 (Fla. 1st DCA 1995) (if landowner's proposed use of property constituted a nuisance, use was not part of landowner's property interests and compensation for denial of fill and dredge permit required for such use would not be due landowner on a theory of a constitutional taking).

In making this determination, we note that the trial court erred in reviewing the propriety of the County's action in denying Huff's application for conditional use approval and the DEP's action in denying him a permit. The Board of County Commissioners denied Huff's application for conditional use approval because of concerns about past violations at the landfill and the continuing odor problems. The DEP denied Huff a permit based on odor complaints, specifically finding that the current operation of the facility constituted a public nuisance.

If the County or the DEP acted improperly, Huff should have sought appropriate administrative and judicial review of those actions. Huff did not do so. He dismissed his administrative appeal of the DEP's decision to deny him a permit and did not seek administrative or judicial review of the County's decision to deny his application for conditional use approval. Furthermore, Huff filed a notice specifically accepting the actions of the County and DEP and waiving any right to further challenge those actions. In these circumstances, Huff may no longer challenge the propriety of the actions of the County and DEP in denying the conditional use approval and a permit.⁴

The remaining question is whether the DEP and/or the County effected a compensable taking by refusing to allow Huff to close the landfill in accordance with DEP requirements in order to put the property to other non-landfill uses. There is simply no evidence that the County kept Huff from closing the landfill in accordance with law or engaged in any conduct amounting to a taking.⁵ Inverse condemnation is a cause of action by a property owner to recover the value of property that has been de facto taken by an agency having the power of eminent domain where no formal exercise of that power has been undertaken.⁶ Rubano v. Department of Transportation, 656 So.2d 1264 (Fla.1995); Sarasota Welfare Home, Inc. v. City of Sarasota, 666 So.2d 171 (Fla. 2d DCA 1995). A "taking" occurs when an owner is denied substantially all economically beneficial or productive use of the land. Huff's position on appeal was that the County inversely condemned the landfill by "preventing him from opening-to-close," but as a matter of law Huff had no right to open the landfill to close it. He only had the duty to close — to...