IN THE SUPREME COURT OF FLORIDA Case No. SC06-1823 BEST DIVERSIFIED, INC. and PETER HUFF Petitioners, vs. OSCEOLA COUNTY, FLORIDA and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondents. CORRECTED BRIEF ON JURISDICTION OF THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION Gregory M. Munson General Counsel L. Kathryn Funchess Teresa L. Mussetto Senior Assistant General Counsels FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION Douglas Building, Mail Station 35 3900 Commonwealth Blvd., Tallahassee, Florida 32399-3000 (850) 245-2242/FAX (850) 245-2296 Attorneys for Respondent
TABLE OF CONTENTS TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 4 ARGUMENT... 4 I. There is no direct and express conflict with decisions of all other Florida courts.... 4 II. The decision by the District Court does not reweigh the evidence... 6 III. The decision by the District Court does not construe provisions of the state or federal constitutions, nor does the decision conflict with existing Florida and federal takings law... 7 IV. The decision does not expressly conflict with Bert Harris Act cases... 10 CONCLUSION... 10 CERTIFICATE OF SERVICE... 11 CERTIFICATE OF COMPLIANCE... 12 i
TABLE OF CITATIONS CASE AUTHORITY Ansin v. Thurston, 101 So. 2d 808 (Fla. 1958)... 5 Elliott v. Elliott, 648 So. 2d 135 (Fla. 4 th DCA 1994)... 6 Florida Water Services Corp, v. Utilities Com n, 790 So. 2d 501 (Fla. 5 th DCA 2001)...10 Goter v. Brown, 682 So.2d 155 (Fla. 4 th DCA 1996)... 6 Holland v. Gross, 89 So. 2d 255 (Fla. 1956)... 7 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 5 Keshbro, Inc., v. City of Miami, 801 So. 2d 864 (Fla. 2001)... 8 Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)... 8 Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962)... 5 Osceola County v. Best Diversified, 936 So. 2d 55 (Fla. 5 th DCA 2006)...1,3,6,7,9,10 ii
Penn Central Transportation Company v. City of New York, 438 U.S. 104 (1978)...8,9 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 1 South Florida Hospital Corp v. McCrea, 118 So. 2d 25 (Fla. 1960)... 5 The Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1988)... 5 OTHER AUTHORITY Section 70.001, Fla. Stat. (1997)... 2 Section 70.001(4)(a), Fla. Stat. (1997)...10 Article V, 3(b)(3), Fla. Constitution... 4 FLORIDA RULES OF COURT Fla. R. App. P.9.120(d)... 1 Fla. R. App. P.9.030 (a)(2)(a)(iv)... 4 Fla. R. App. P.9.210(a)(2)...12 Fla. R. App. P. 9.330(a) Committee Notes, 2000 Amendment... 6 iii
OTHER AUTHORITY Anstead, Harry Lee, Gerald Kogan, Thomas D. Hall, and Robert Craig Waters, THE OPERATION AND JURISDICTION OF THE SUPREME COURT OF FLORIDA, 29 Nova L. Rev. 431,504-05 2005)... 8 Blumm, Michael C. and Lucas Ritchie, LUCAS S UNLIKELY LEGACY: THE RISE OF BACKGROUND PRINCIPLES AS CATEGORICAL TAKINGS DEFENSES, 29 Harv. Envtl. L. Rev. 321, 325-26 (2005)... 9 iv
Statement of the Case and Facts The Petitioners, Best Diversified and Peter L. Huff (collectively Huff ) request this Court to exercise its discretionary jurisdiction to review the decision rendered by the Fifth District Court of Appeal on the County s motion for rehearing in Osceola County v. Best Diversified, 936 So. 2d 55 (Fla. 5th DCA 2006) (copy attached as Appendix A). The Fifth District granted the motion for rehearing, withdrew its prior opinion, and issued this decision in its place. Because the Best Diversified opinion does not expressly construe a provision of the state or federal constitution, or create any direct and express conflict with decisions of another district court or of this Court, no jurisdictional basis exists for such review. The facts, as recited by the Fifth District, are that Huff owned a forty-acre landfill, operated as a construction and demolition debris ( C & D ) facility under a general permit approved by the Florida Department of Environmental Protection ( DEP ) in 1991. 1 Id. at 57. The permit was valid for five years, and required the operator to seek further approval at the end of that time. Id. In November 1996, DEP denied Huff s permit application because of continuing complaints from nearby residents of foul odors, investigations by DEP which linked the odors to the landfill, and Huff s failure to show that the facility 1 The Court should disregard the factual statements in Petitioner s Brief on Jurisdiction (contained in the last paragraph on page one and the top of page two) which are not found within the four corners of the Fifth District s decision. Reaves v. State, 485 So. 2d 829, 830 n.3 (Fla. 1986); Fla. R. App. P 9.120(d). 1
would be operated in a manner which would control the odors. Id. at 57-58. In so doing, DEP specifically found that Huff s current operation of the facility constituted a public nuisance. Id. at 58. The landfill had also been operating pursuant to a conditional use approval by Osceola County, which was also valid for five years, and required reapplication upon expiration. Id. at 57. In February 1997, the County denied Huff s request for a conditional use, and the landfill ceased to operate. The odor complaints stopped shortly thereafter. Id. at 58. Huff then filed this lawsuit, seeking damages under a theory of inverse condemnation and the Bert Harris Act, section 70.001, Florida Statutes (1997). Although Huff initially sought administrative review of the DEP permit denial, that request was subsequently withdrawn. Instead, Huff filed a Notice of Acceptance of Agency Action, in which Huff stated that Plaintiffs waive any and all rights to further challenge the propriety of the agency action and rules, but reserved their rights to maintain actions for inverse condemnation and Harris Act relief. Id. At trial, DEP and the County objected to any testimony regarding the propriety of their denials, since Huff had failed to seek appropriate administrative relief and accepted both entities actions. These objections were overruled, and Huff presented evidence concerning the reasons for the denials. The trial court concluded that DEP (and the County) simply weighed the interests of the nearby residents against Huff s and concluded that the residents interests outweighed 2
Huff s. 936 So. 2d at 58. The Court also found that DEP (and the County) had imposed standards on Huff which made it impossible to operate or close the facility; therefore it was unsuitable for any other use, and constituted an ouster of Huff from the property. The court granted Huff relief under both the inverse condemnation and Harris Act claims. Id. A jury subsequently awarded Huff damages in excess of $1,400,000 on each claim. Huff elected the remedy of inverse condemnation, and judgment was entered vesting title to the property in the County and DEP, and requiring them to pay $1,415,000 to Huff. Id. at 58-59. Both DEP and the County appealed. The threshold issue was whether Huff was entitled to compensation when his permit was denied based upon the determination that the facility was the cause of noxious odors and constituted a public nuisance. Id. The Fifth District held that the answer was clearly no. 2 Id. The appellate court reversed the inverse condemnation judgment, also holding that Huff did not prevail on his Harris Act claim, both because he failed to submit the bona-fide, valid appraisal required by the Act, id. at 60, and because the Act did not apply to impacts on real property occasioned by governmental abatement, 2 The original panel opinion concluded that there was competent substantial evidence to support the finding of a taking against the County, but not against DEP. The County then filed a motion for rehearing. Best Diversifed, 936 So. 2d at 71. On rehearing, Judge Sharp adhered to her view that no taking had occurred with respect to DEP, but also determined that a taking had not been proven against the County, agreeing with Judge Griffin. Id. at 67. 3
prevention or remediation of a public nuisance or noxious use of private property, which the actions complained of, indisputably were. Id. Petitioners filed a timely Notice to Invoke Discretionary Jurisdiction of this Court, alleging conflict with other district court decisions and decisions of this Court, and (in their Brief on Jurisdiction) asserting that the opinion construes a provision of the state and federal constitutions. Since neither basis to invoke the Court s jurisdiction exists in this case, the petition for review should be denied. SUMMARY OF THE ARGUMENT Contrary to Petitioners contention, the Fifth District s decision does not expressly and directly conflict with any point of law announced in any decision cited by Petitioners, nor does the opinion expressly construe provisions of the state and federal constitutions. Consequently, under this Court s precedent, the Court s discretionary conflict jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution is not implicated here, and the request for review should be denied. ARGUMENT I. There is no direct and express conflict with decisions of all other Florida courts. The Supreme Court has discretionary jurisdiction to review any decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. Art. V, 3(b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A)(iv). The 4
Court s discretion to review a district court decision pursuant to that provision is narrowly circumscribed. See The Florida Star v. B.J.F., 530 So. 2d 286, 288 (Fla. 1988) (explaining that the Court s discretionary conflict jurisdiction is narrowly circumscribed); see also Jenkins v. State, 385 So. 2d 1356 (Fla. 1980) (emphasizing that district courts are courts primarily of final appellate jurisdiction ) (quoting Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958)). In construing this constitutional restriction, the Court has carefully limited the cases that qualify for conflict jurisdiction review, explaining: The conflict must be such that if the later decision and the earlier decision were rendered by the same Court the former would have the effect of overruling the latter. If the two cases are distinguishable in controlling factual elements or if the points of law settled by the two cases are not the same, then no conflict can arise. Kyle v. Kyle, 139 So. 2d 885, 887 (Fla. 1962) (internal citations omitted); see also South Florida Hospital Corp. v. McCrea, 118 So. 2d 25, 27 (Fla. 1960) (reflecting that the scope of review is extremely limited under conflict jurisdiction). Here, the Court does not have discretion to review the Fifth District s decision in Best Diversified because that decision does not establish a point of law contrary to any decision cited by Petitioners. Indeed, the cases cited by Petitioners as being in conflict regarding the standard applicable to argument on rehearing, see Brief on Jurisdiction at 4, predate the 2000 amendment to the rule, which expressly deleted the referenced reargument prohibition asserted by Petitioners as the source 5
of such conflict. Fla. R. App. P. 9.330(a), Committee Notes, 2000 Amendment. Because express and direct conflict is required to be on the same point of law, no conflict exists between this case and cases interpreting the preamendment rule. Moreover, the two most recent of the cases cited, see Brief on Jurisdiction at 4, are clearly inapposite to the facts and circumstances presented in the instant case. Goter v. Brown, 682 So. 2d 155, 157 (Fla. 4th DCA 1996) concerned a motion for rehearing in which the appellee newly advance[d] a previously unseen document. Elliott v. Elliott, 648 So. 2d 135 (Fla. 4th DCA 1994) concerned a motion for rehearing filed after the court s per curiam affirmance in which the appellant argued that the judgment was a travesty and the court s review superficial and shallow. Any reliance on these cases is thus misplaced. In essence, the petitioners ask this Court to go beyond the four corners of the District Court s opinion and review the motion for rehearing filed below. This cannot and does not serve as a basis for the Court s discretionary review. Because nothing on the face of the Fifth District s opinion has the effect of overruling or creating conflict with the cited decisions, the petition for review should be denied. II. The decision by the District Court does not reweigh the evidence. Contrary to Petitioners assertion, see Brief on Jurisdiction at 5-6, the Fifth District did not reweigh the evidence. Rather, as reflected in the Best Diversified 6
opinion, 936 So. 2d at 58, the district court determined that the undisputed record evidence did not support Huff s claims. As this Court has stated: A finding which rests on conclusions drawn from undisputed evidence, rather than on conflicts in the testimony, does not carry with it the same conclusiveness as a finding resting on probative disputed facts, but is rather in the nature of a legal conclusion. When the appellate court is convinced that an express or inferential finding of the trial court is without support of any substantial evidence, is clearly against the weight of the evidence or that the trial court has misapplied the law to the established facts, then the decision is clearly erroneous and the appellate court will reverse because the trial court has failed to give legal effect to the evidence in its entirety. Holland v. Gross, 89 So. 2d 255, 258 (Fla. 1956) (internal citation omitted). In Best Diversified, as in Holland, the ultimate findings rest upon undisputed evidence--specifically, DEP s uncontroverted determination that Huff s operation of the C & D facility constituted a public nuisance. Best Diversified, 936 So. 2d at 58. Consequently, Best Diversified does not reflect misapplication of any appellate standard of review discussed in the cases asserted to create conflict. III. The decision by the District Court does not construe provisions of the state or federal constitutions, nor does the decision conflict with existing Florida and federal takings law. Petitioners assert that the Fifth District s opinion expressly interprets provisions of the state and federal constitution, because the Best Diversified Court applied the takings provision of the federal constitution to determine that no taking of Huff s property had occurred. 936 So. 2d at 56. Contrary to Huff s 7
assertion, however, the mere application of a constitutional provision does not equal an interpretation of that provision, justifying jurisdiction. Rather, there must be an express interpretation of the provision, adopted by the entire panel: Prior to the 1980 reforms, the Court held that the inherency doctrine does not apply to this type of jurisdiction. Rather, the decision under review had to explain, define or otherwise eliminate existing doubts arising from the language or terms of the constitutional provision. The key word was doubts; the opinion under review had to contain a statement recognizing or purporting to resolve some doubt about a constitutional provision. Thus, jurisdiction does not exist if only a single judge on a three judge district-court panel construed a statute or provision of the Constitution, even if that judge s opinion is characterized as the decision of the Court. This rests on the sound principle that the actual holding of the Court is what a majority has voted to approve, not what the minority has opined. For much the same reason, the statement of construction must be a ruling that was more than a mere application of a settled constitutional principle. Absent the obligatory act of construction, it was not enough that a petitioner simply alleged an unconstitutional result. Commentators called this the explain or amplify requirement. This analysis still would appear to be sound, especially in light of the additional requirement that the construction be express. Harry Lee Anstead, Gerald Kogan, Thomas D. Hall, Robert Craig Waters, THE OPERATION AND JURISDICTION OF THE SUPREME COURT OF FLORIDA, 29 Nova L. Rev. 431,504-05 (2005) (footnotes omitted) ( SUPREME COURT JURISDICTION ). Moreover, the Fifth District did not misinterpret the nuisance exception established in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) by applying it (according to Petitioners, see Brief on Jurisdiction at 7-9) in a Penn 8
Central 3 context. To the contrary, both Lucas and Keshbro, Inc. v. City of Miami, 801 So. 2d 864 (Fla. 2001), cited in the Best Diversified opinion, 936 So. 2d at 58, address total takings. Regardless, the Fifth District s application of the nuisance exception does not create conflict, for two reasons. First, the petitioner pled and elected the remedy of inverse condemnation, through which title passed to the County and DEP, i.e., a total taking. Thus, the nuisance exception was applied in a case where a total taking was alleged and found to have occurred. Second, even if the nuisance exception were applied by a Florida court for the first time in a Penn Central context (which did not occur here), that would constitute a case of first impression, and not an express and direct conflict with cases whose facts were inapposite. In any event, the nuisance exception has also been applied by other courts in Penn Central cases. See generally Michael C. Blumm & Lucas Ritchie, LUCAS S UNLIKELY LEGACY: THE RISE OF BACKGROUND PRINCIPLES AS CATEGORICAL TAKINGS DEFENSES, 29 Harv. Envtl. L. Rev. 321, 325-26 (2005). Petitioners argue that, because no orders or findings of any governmental body holding the property a nuisance were ever issued Judge Griffin s opinion directly conflicts with Keshbro. Brief on Jurisdiction at 8. This statement is 3 In Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978), the Supreme Court identified three factors to apply when engaging in an analysis of whether a regulation constitutes a taking: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. See Penn Central, 438 U.S. at 124. 9
erroneous, and ignores the fact that DEP entered an order specifically finding that Huff s operation of the facility constituted a nuisance, to which Petitioners waived any challenge. Best Diversified, 936 So. 2d at 58-59. Consequently, there is no conflict with the Fifth District s decision and this Court s opinion in Keshbro. IV. The decision does not expressly conflict with Bert Harris Act cases. The Harris Act requires more than a valid appraisal; it requires a bona fide, valid appraisal that supports the claim and demonstrates the loss in fair market value to the real property" to be served with the notice of claim. 70.001(4)(a), Fla. Stat. (1997). The Fifth District s opinion deemed Huff s appraisal not to be bona fide, without further discussion. Therefore, no direct and express conflict is apparent on this point, from the face of the opinion. 4 Conclusion The Fifth District s decision in Best Diversified does not expressly and directly conflict with any point of law announced in the decisions cited by Petitioners, nor does it expressly construe a provision of either the state or federal constitutions. Consequently, the petition for review should be denied. 4 Further, because Florida Water Services Corp. v. Utilities Com'n, 790 So. 2d 501 (Fla. 5th DCA 2001) is also a Fifth District decision, it provides no basis for conflict review. SUPREME COURT JURISDICTION, 29 Nova L. Rev. at 104-15 (observing that [t]he fact that a district court decides to expressly or silently depart from its own case law does not establish conflict ). 10
Respectfully submitted, GREGORY M. MUNSON Florida Bar I.D. No. 188344 General Counsel L. KATHRYN FUNCHESS Florida Bar I.D. No. 349402 TERESA L. MUSSETTO Florida Bar I.D. No. 308463 Senior Assistant General Counsel Florida Department of Environmental Protection 3900 Commonwealth Blvd. MS 35 Tallahassee, FL 32399-3000 (850) 245-2242/FAX (850) 245-2296 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been furnished by U.S. Mail this day of October, 2006 to: Tracy A. Marshall, Esquire, GrayRobinson, P.A., 301 East Pine Street, Suite 1400, Orlando, FL 32802, and Steven L. Brannock, Holland & Knight LLP, 200 South Orange Avenue, Suite 2600, P.O. Box 1526, Orlando, FL 32802 L. KATHRYN FUNCHESS 11
CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Answer Brief complies with the font requirements of Fla. R. App. P.9.210(a)(2). It is in Times New Roman 14-point font. L. KATHRYN FUNCHESS 12
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