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Graham v. Estuary Properties, Inc.

Citation: 11 ELR 20992
No. No. 58485, 399 So. 2d 1374/16 ERC 1766/(Fla., 04/16/1981)

The court rules that the denial of a residential development permit in a mangrove wetland does not violate the Takings Clause of the Fifth Amendment. The Florida Land and Water Adjudicatory Commission upheld a denial of respondents' application for a permit because of the environmental impact of development on the surrounding bays. The district court ordered the permit to be issued. The court reverses the district court's ruling that the denial violated Chapter 380 of the Florida Environmental Land and Water Management Act. The Act requires the commission to balance the interests of the state in protecting the public health and safety against private property interests. Because the commission properly weighed the various factors and determined that the state met its burden of proving that the proposed development would have adverse environmental effects, the district court improperly substituted its judgment for that of the commission. However, since the Act requires the commission to expressly indicate project changes which would make respondents eligible for a permit, the court remands for further agency proceedings. Finally, the court reverses the district court's ruling that the denial of the permit constituted a taking without just compensation. The regulation of respondents' property was not unreasonable because it led to a substantial public benefit in terms of environmental protection and did not deprive the owner of all reasonable use of its property. A taking is not established merely because respondents' subjective expectation that the land could be developed was not realized.

Based on Supreme Court precedent a dissenting judge would find that respondents' property has been taken and would require just compensation be paid.

Counsel for Petitioners
Jim Smith, Attorney General; Kendrick Tucker, Richard A. Hixson, Thomas R. Tedcastle
The Capitol, Tallahassee FL 32301
(905) 488-1573

Charles L. Siemon, Fred R. Bosselman
Roth, Hardies, O'Keefe, Babcock & Parsons
One IBM Plaza, Suite 3100, Chicago IL 60601
(312) 467-9300

Counsel for Lee Cty.
James T. Humphrey
Goldberg, Rubinstein & Buckley
P.O. Box 2366, Ft. Myers FL 33902
(813) 334-1146

Counsel for Respondents
Gary P. Sams, Wade L. Hopping, Richard D. Melfon
Hopping, Boyd, Green & Sams
P.O. Box 6526, Tallahassee FL 32301
(904) 222-7500

SUNDBERG, C.J., and BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.