HomeMy WebLinkAboutR-86-0401J-86-497
RESOLUTION NO. 8f - 401'
A RESOLUTION AUTHORIZING THE CITY ATTORNEY'S
EMPLOYMENT OF THE LAW FIRMS OF JOSEPH Z.
FLEMING AND PARKER THOMPSON TO SERVE AS
SPECIAL COUNSEL TO ASSIST IN THE DEFENSE OF
THE CITY IN AND THROUGH THE TRIAL STAGE OF
TWO LAWSUITS BROUGHT AGAINST THE CITY IN
CONNECTION WITH ZONING MATTERS INVOLVING
PROPERTY LOCATED AT 3471 MAIN HIGHWAY, SAID
FIRMS EACH TO RECEIVE COMPENSATION AT THE
HOURLY RATE OF $50 WITH THE TOTAL
COMPENSATION FOR BOTH FIRMS LIMITED TO
$50,000 UNLESS FURTHER AUTHORIZED BY THE CITY
COMMISSION.
BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA:
Section 1. The City Attorney's employment of the law
firms of Joseph Z. Fleming and Parker Thompson to serve as Special
Counsel to assist in the defense of the City in and through the
trial stage of two lawsuits brought against the City in connection
with zoning matters involving property located at 3471 Main
Highway is hereby authorized.
Section 2. Each of said firms is to receive compensation
at the hourly rate of $50 with the total compensation for both
firms limited to $50,000 unless further authorized by the City
Commission.
PASSED AND ADOPTED this 22nd day of May, 1986.
,
MAT Y HIRAI, CITY CLERK
PREPARED AND APPROVED BY:
ROBERT F. CLARK
CHIEF DEPUTY CITY ATTORNEY
TO FORM AND CORRECTNESS:
LUCIA A. DOUG;
CITY ATTORNEY
RFC/rr/M134
XAVIER L. SUAREZ
MAYOR
►'T COKWSSION
WEETINC OF
WAY 22
41)
E
CITY OF MIAMI. FLORIOA
INTER -OFFICE MEMORANDUM
22
GATE: May 13, 1986 FILE L-86-68
TO. Honorable Xavier L. Suarez L-86-69
and Memb s the City CommissionSUBJECT Retention of Special Counsel
on a modified pro bono_
publico basis
FROM: ,
Lucia A. Do g ert REFERENCES:
,
Citv Attorney (1)
ENCLOSURES:
have
Kenneth Treister, Howard scharlin and Commission's denial Gerald
of their zoning
filed an appeal of the City C their property located
application on March 27, 1986, regarding
In a separate action they have also
at 3471 Main Highway.
tionality of the present ordinance as
challenged the constitu
connectionin
applied to their property•tl a the major use special permit was
seeking damages from the are
denied in December, 1985, until it is OverturnedTialB officeekhas
damages for alleged anti-trust violations.
contacted two firms, Joseph Z. Fleming and Parker Tehompson, tnmerous hat
have been involved have uagreed toSeassist s of t the his City (please
Special
attached) and who trial stage
Counsel in the defense of actions
$50,000 oath $50e00 per hour•
lawyers for a maximum for both Y on
Therefore, most of their efforts on the City'n behrecommendst the
a pro bono publico basis. This office strongly
retention of the services of these attorneys in the defense of
both actions.
LAD:GMM:bss:P201
1 86-401-
1. Surface Water Management Permit No. 50-01420-S
Issued to Mr. George Michael Challancin and Mr. James
Richard Challancin, J-Mark Fishing Village. Mr. Fleming
represented Florida Audubon Society and Audubon Society of
the Everglades, in successfully opposing a South Florida
Water Management District decision to allow a condominium
project to be built inside the Lake Okeechobee levee. The
Governor and the Cabinet, on April 1, 1986, unanimously
ruled in favor of the Audubon Societies -- granting the
relief sought on appeal and revoking the permit.
2. Dade County-v. City of Miami Beach and Miami
Design Preservation League, Inc and Dade _Heritage Trust,
Case No. 83-27784 (02) (the Eleventh Judicial Circuit in and
for Dade County). Mr. Fleming represented the Miami Design
Preservation League, initially in proceedings to challenge a
City of Miami Beach Historic Preservation Ordinance, which
did not meet the County standard. After the County Commis-
sion upheld the decision of the Preservation Board (that was
asked to find, and ruled, that the Miami Beach Ordinance was
not satisfactory) and was sued, Mr. Fleming represented MDPL
in support of the County position, by intervening on behalf
of the County (along with co -counsel). Mr. Fleming nego-
tiated, with the attorneys for the County and the City, to
reach a settlement which resulted in the passage of an
improved law by the City of Miami Beach as a means of
19
enabling settlement of the suit and the elimination of the
proceedings against the City of Miami Beach.
3. Nat Ratner v South Florida Water Management
District, Florida Audubon Society and Tropical Audubon
Society, Inc_., Circuit Court Case No. 75-9051 CA 23 (Third
District Court Case Nos. 85-913 6 85-915 (now pending before
the Third District Court of Appeal). Mr. Fleming repre-
sented the intervenors Florida and Tropical Audubon
Societies in connection with litigation. The initial appeal
was to challenge a ruling below which granted a bridge. A
copy of the Third District decision is attached. On remand
the developer challenged the decision of the District for a
number of new reasons -- including inverse condemnation
claims. After approximately three weeks of trial over a
long period the Court ordered a bridge built which is now on
appeal and ruled that there was no inverse taking, which is
now on cross -appeal before the Third District. Counsel for
the developer include Mr. Brigham.
4. RITE -Research improves the Environment Inc. and
City of Miami Beach vs. Thomas, et al., 76-1848-Civ-Hoeveler
(pending before the United States District Court for the
Southern District of Florida). Mr. Fleming initially filed
a suit on behalf of a citizens' group against the City of
Miami Beach, Dade County, its separate Water and Sewer
-2-
86-401 A
1 10
Authority (now part of the County), the State of Florida
Department of Environmental Regulation and the United States
of America Environmental Protection Agency. The challenge
involved the citizens' group attempt to allow the City to
proceed with an experiment, under safeguards which could
save tax dollars and also eliminate pollution. The City of
Miami Beach was initially sued as a Defendant, because it
had been coerced into abandoning a program. The case was
initially decided in favor of Defendants but, on appeal, the
Fifth Circuit (now the Eleventh Circuit) reversed in favor
of the citizens' group, and a copy of the decision is
attached. The case is still pending but involves different
aspects of the matter.
5. Coral Bay Property Owners v Gulliver Academe,
(Circuit Court and Third District Court of Appeal). Mr.
Fleming represented an association invovled in an attempt to
uphold a zoning restriction that the City of Coral Gables
was going to uphold but enjoined from enforcing. The City
had been prevented from acting by virtue of an injunction;
and, the citizens' group attempted to intervene and when
denied that right, appealed. A copy of the Third District
decision granting intervention is attached. After the
intervention was allowed by the Third District the case was
then settled, as a result of a negotiated compromise (which
enabled the school to go to a limited grade level and, then,
+s �
find another location for its higher grade school, so as to
comply with the original concepts of the zoning that were
being defended).
6. Mr. Fleming represented Florida and Tropical
Audubon Societies in opposing a landfill project which had
been approved by the Corps of Engineers and numerous other
governmental entities. The project was ultimately vetoed by
one of the first, if not the first, Environmental Protection
agency vetos under Section 404(c) of the Clean water Act. A
copy is attached.
7. Mr. Fleming (with other counsel including Parker
Thomson) has also participated in numerous other cases on
behalf of the Audubon Societies and other environmental
groups and public interest groups. These include the "Fair .
Isle" litigation (upholding a public nuisance concept for
challenging a project and reducing it from four 40 story
towers to ultimately three 18 story towers on Sailboat Key,
a copy of the decision is enclosed). Mr. Fleming also
represented Audubon Societies in effectively preventing an
after -the -fact permit application for filling of a valuable
esturine area in Key West and successfully opposing, for
environmental reasons, the South Shore Redevelopment Project
proposal involving numerous canals.
-4-
tf
' Sf -401-
1 14
Y. RATNER Fla. 1055
SOUTH FLORIDA WATER MANAG� a
Cltb a%F1a.APR.
osDIST.
of ownership in a manager of a store, one
rugs the store, would be sufficien
SOUTH A WATER MANAGE.
Audubon Sa
who
Unquestionably, the manager has a posses-
interest therein which is great-
ENT DISTRIDCT, Florida
ciety and Tropical Audubon Society,
sory right of
er than that of the burglar, and proof
Inc., Appellants,
thereof should preclude a second prosecu-
v.
tion for the same offense. In a recent case,
Nat RATNER, Appellee.
Adirim V. State, W Sold 1082 (Fla.3rd
held that proof of
Nos. 77-479, 77� and 77-511.
DCA 1977), the court
„
"ownership in a branch manager of the
District Court of Appeal of Florida,
firm which owned the property was suffi-
Third District.
not just an ordinary
ciety, noting that he 1s ]
See also Johnson v. State, 188
April 18, 1978. .
employee.
So.2d 61 (Fla.3rd DCA 1966), (ownership
Rehearing Denied May 19, 1978.
I.- ' a real estate
alleged and proven to uz
saleswoman who held an exclusive dwho was in
for sale of the property
actual possession was held sufficient).
The confusion referred to arises as a re-
sult of cases -such as Stewart v State, 122
So,2d 34 (Fla.2nd DCA 1960), and Harper v
State, supra. The former held ownership
alleged to be in a person who was the night
manager of a tavern was not sufficient and
the latter ase seems to recognize the valid-
ity of such holding. I would reject Stewart,
supra, as not being in accord with the law
as set out by the Supreme Court in Addison,
Supra.
Finally, I see no real conflict between the
rule laid down in Addison, supra, and Smithy
V. State, supra. The person alleged to be
the owner in Smith was merely a yardman
who was authorized to open the house occa-
sionally to air it out
.: Accordingly, for the foregoing reasons I
concur in an affirmance of the judgment
appealed from.
ozat�srsttr
Landowner brought action against
flood control district seeking to gain access
to his land which was surrounded by levees
and borrow canals constructed by district
under rights granted in easement agree-
ment entered into with landowner's prede-
cessor. The Circuit Court, Dade County,
Dan Satin, 3, entered a judgment holding
that district bad to bear expense of
providing access to landowner and ordering
district to construct particular bridge for
landowner at particular time and place, and
district -appealed. The District Court of
Appeal, Pearson, J., held- that: (1) trial
court did not err in holding that district
which executed easements agreements giv-
ing it right to easement ,for purposes of
constructing and maintaining � end control
projects and reserving to gram
their
assigns right to use land and right to in-
gress and egress from land was required to
bear expense of overcoming obstruction to
access caused when district constructed
levees and borrow canals surrounding land,
and (2) landowner was entitled to access
but not to a particular bridge.
Affirmed in part, reversed in part and
remanded with directions.
L Levees and Flood Control 4=131h
Record did not support the assertion
that administrative remedies were available
and adequate with respect to landowner's
claim against flood control district for ac-
cess to land surrounded by levees and bor-
row canals district constructed pursuant to
1
� N
'O
a-
0
�t
M
M
3 4
1056 Fla. 357 SOUTHERN REPORTER, 2d SERIES
easement deeds, giving court jurisdiction to ed pursuant to easement agreements with
entertain action seeking such access. landowner's predecessor and landowner's
prayer sought order enjoining district from
2. Levees and Flood Control 4-13h interfering with landowner's right of in.
Flood control district which executed gress and egress, requiring district to pro -
easement agreements giving it easement vide reasonable access to land and declaring
for purposes necessary for construction, common-law way of necessity, trial court
maintenance and operation of flood control went beyond relief requested when it en.
projects and reserving to grantors and their tered order requiring district to construct
assigns right to use land and right of in- particular bridge at particular place for
gress and egress to and from land and landowner.
which, under rights granted in easement
agreements, constructed levees and borrow
canals surrounding land, resulting in ob-
struction of access, had to bear expense of
overcoming obstruction to access.
3. Levees and Flood Control *-13th
Having jurisdiction over landowner's
action against flood control district seeking
access to land surrounded by levees and
borrow canals district constructed under
rights granted in easement deeds and hav-
ing determined that landowner had right of
access for purposes set forth in deeds which
reserved to landowner right of ingress and
egress to and from land, court had jurisdic-
tion to proceed to settlement. of controversy
and to enforce its order.
4. Levees and Flood Control *►131h
Under easement agreements which
gave flood control district right to easement
for any purpose necessary to construction,
maintenance and operation of flood control
projects and which reserved to landowner
right to use land and right of ingress and
egress to and from land, landowner whose
land was surrounded by levees and borrow
canals district constructed under rights
granted in easement agreements was enti-
tled to have district supply means of access
but was not entitled to require that district
construct particular bridge at. particular
time and place.
L Levees and Flood Control 4-131h
Where landowner in complaint alleged
that flood control district had failed to pro-
vide landowner with reasonable method of
obtaining access to property surrounded by
levees and borrow canals district construct -
Thomas J. Schwartz, Robert Grafton. and
Stephen A. Walker, West Palm Beach,
Fleming & Neuman, Miami, for appellants.
Horton, Perse & Ginsberg, A. Jay Cristol
and Steven Mishan, Miami, for appellee.
Before PEARSON, HUBBART and KE-
HOE, JJ.
PEARSON, Judge.
These appeals are from a single order
entitled "Amended Summary Judgment
and Order on Motion for Summary Judg-
ment." The appellants are the Central and
Southern Florida Flood Control District,'
the Tropical Audubon Society, Inc., and the
Florida Audubon Society. The District was
the defendant and the Societies were grant-
ed leave by the trial court to intervene as
parties defendant. The result of the partial
summary judgment appealed is that the
District must provide the appellee, plaintiff
Nat Ratner, with a means of access to his
lands. The operative portion of the order is
as follows:
"1. Plaintiff's Motion for Partial
Summary Judgment as to its demand
that Defendant provide him with reason-
able access to his property be and the
same is hereby granted, and the Defend-
ant is hereby directed to provide at its
own expense and as quickly as possible, a
means of access to the RATNER LAND,
spanning Levee L-30 and L-30 Borrow
Canal, such means to be sufficient to
enable Plaintiff to engage in those activi-
ties which are specifically reserved to him
1. Now known as the South Florida Water Management District.
r
4. Sol
in the E.
as he m.
in accort
EASEM
be requi
to make
any par
tion pre
quired i
access t
ment.
jurisdic i
determi
of such
unable
to the
provide
within
ed, ane
may I
Court.
42.
Judgm
went i
Durini
ary, 195
Control
meet at
Ratner's
the subj
easemer
trict, gs
struct,
the inU
and con:
by the
Deeds i
right, ir.
the 1
and
struc
any
troll
purp
cond
ager
the i
ly fl
ed h
tion
ur
Sf -401-
•
WATER MANAGEMENT DIST. v. RATNER Fla. 1057
SOUTH FLORIDA
Cite as. rla.App, 357
Sold sons
and intents Of the
tofe
uch time
in the EASEMENT DEED ise hem
to exerc
ing out purposes
statutes theState of Florida relating
-nents with
as he may be authorized
the of s aid
to Central and Southern Florida Flood
:ndowner's
•trict from
in accordance with provisions
EASEMENT DEEDS. Plaintiff shall not
Control District [now the South Florida
Management District] presently
:ht of in.
be required to request or obtain a permit
the RATNER LAND, or
Water
existing or that may be enacted in the
-:ct to pro-
declaring
to make use of
any part thereof, prior to, or as a condi-
future pertaining thereto. Any part of
thereof of the right, p g
trial court
'-en
tion precedent to, Defendant's being re-
its obligation to provide
the whole
use and easement herein granted may be
it en-
quired to fulfill
Plaintiff pursuant to this Judg-
assigned for the public purposes contem-
construct
alace for
access to
ment. The Court reserves and retains
this cause in order to
plated herein by the grantee [South Flori-
da Water Management District] at its
.
jurisdiction over
determine the question of the adequacy
own option and sound discretion without
of such access, if the parties hereto are
approval of the grantor herein."
%ifton and
-n Beach,
unable to reach an amicable agreement as
to the method and type of access to be in
The grantors retained substantial rights
and to their property which were enu-
�pellants.
provided by the Defendant and the time merated in the documents:
within which such access shall be provid- wit understood and agreed
:&V Cristol
appellee,
ed, and to determine such other issues as
be brought before the
is specifically
p grant of the uses,
and
may properly
privioing
righ leges aforesaid shall in no
and KE-
;.
Coin- tion for Summary
"2. ' Defendants Mo
wise prohibit or interfere with the right
Judgment as to the reversion of the ease •
tiff's p�e�rshin interest), their hers,
ment is granted-"
administrators, assigns or lessees, to: (a)
.1le order
Judgment
During the latter part of 1950 and Janu-
1951, the Central and Southern Flood
lease or conduct operations on the premis-
herein described, for the exploration or
.:try Judg•
ary,
Control District entered into certain ewe-
or flood contracts with
es
drilling for, or the developing, producing,
or other
'=n� and
Districts
went agreement`s
Ratner's predecessors in title. At the time,
storing, or removing of oil, gas
in or under the aforesaid prem-
and the
the subject property had been platted. They
by the Dis-
minerals
(b) remove topsoil, muck, etc., from
as
-.rict was
.:re grant-
easement agreements, prepared
trict, gave. the District the right to con-
c make such further use
the surface,nco () purposes for
not conflict with the
- rnene. as
struct, operate and maintain a project in
the interest of flood control, reclamation
will
which this grant is given"
partial
.hat the
and conservation on the lands owned in fee
These Flood Easement
The foregoing provisions in each of the
Easement Deeds are followed by the follow-
Plaintiff
; ss to his
by the grantors.
Deeds provide that the District had the
ing reservation of rights to he grantor
order is
right, inter alia, to the:
"To exercise these rights, [(a), (b) and (c)
" use and easement in and to
above], the Grantor (plaintiff's predeees-
Partial
the lands hereinafter described for any
necessary to the con-
sor in interest), their heirs, administra-
or lessees, and agents and
demand
- reason-
and all purposes
struction, maintenance and operation of
tors, assigns
employees, shall have such right of in -
lid the
any project in the interest of flood con-
and allied
and egress to and from said lands
Defend.
:� at its
trot, reclamation, conservation
purposes now or that may hereafter
as may be necessary.
"It being further specifically understood
.<Able, a
l`.kti D,
e
conducted by the Grantee herein, its sire-
[the South Florida Water M81n-
and agreed that the rights retained under
this shall be
%brow
cessors
agement District], or assigns, including
or intermittent-
the provisions of paragraph
exercised the Grantor,ssees,, Subject to
nt to
acti%ri-
the right to permanently
ly flood all or any part of the area cover-
ministrato rs assigns es and _
::o him
ed hereby as a result of the said construe-
or operation, in carry-
reasonable
whichee overni Governing Board of Flood Cons
lion, maintenance,
337 502d--37 • .
T,
1058 Fla-357 SOUTHERN REPORTER, 2d SERIES
trol District may prescribe for the effi-
although conceding that Ratner could, at
dent maintenance and operation of ais
own expense, construct a bridge.
h
public project in the interest of flood
The trial judge made the following fi nd-
control reclamation, conservation and al-
:
liedtags
purposes, but which shall permit the
"6. Subsequent to the dates on which
reserved rights to exercise so that oil, gas
the EASEMENT DEEDS were executed,
and mineralsmay be developed, extracted
in approximately 1952, the Defendant
from the District in accord
excavation work on the RAT
and removed
ance with sound engineering principles."
commenced
NE R'LAND, and on other lands contigu-
Beginning in 1952, the District under its
ous and adjacent thereto. The result of
rights granted in the easement agreements
the excavation work was the creation of a
constructed a system of levees and borrow
series of levees and canals including
canals which virtually surrounded the Rat
Levee L-30 and L-30 Borrow Canal.
ner land. Levee 30 and Borrow Canal 30
The levees and canals virtually surround
physically separate the Ratner land from
the RATNER LAND.
other lands to the east and from Krome
"7. That proper demand for access to
Avenue. Levee 30 has an average height of
his property has been made by Plaintiff
approximately thirteen feet above natural
to Defendant; and that with regard to
ground level and bass width of some sev-
access the only issue to be determined by
enty feet. The adjacent borrow ca nal is
this Court is is to bear the expense
approximately eighty feet in width and
of overcoming the obstruction to access to
twenty feet deep. The system of levees
the Ratner property resulting from the
and canals in which the Ratner land is
creation of Levee L-30 and L-30 Borrow
located is known as Conservation Area 3,
Canal.
which is divided into Areas SA and 3B.
"S. The Affidavits of DALY and KA-
I is the
Area 3B lies west of Levee 30 and
Plaintiff
THRYN RIGHLEYMAN, Plainti
site designated for the development of the
predecessors in interest and the original
South Florida Airport Site (Jetport).
Grantors of one of the Easement Deeds
In February and March, 1972, Ratner
offered by the. Plaintiff in support of his
purchased the subject property. Prior to
ment reflects
Motion for Summary Judg
purchase, Ratner visited the property trav-
that it was the intention of the Grantors
cling over Levees 30 and 67A by car. Ac
at the time the EASEMENT DEEDS
cess across Levee 30 Borrow Canal was
were granted that if the Defendant ever
possible by existing culvert rock crossings
built any canals and levees, or took any
spanning the canal located north and south
other action which would impede or inter-
of the Ratner property.
of
with the eright of a which had
Shortly after Ratner's, purchase of the
been promised to the Grantors in the
EASEMENT DEE DS, the Defendant
the District erected locked gates
property. the access points leading to the
would provide, at its own expense, a
across
levees and crossings, of canals. The District
means of overcoming the obstacle to ac-
ess which it had created, otherwise they
c
issued keys to the gates to those Persons
f or governing board
approved by the staff
would not have given the EASEMENT
under districtpolicy Ratner applied for
DEEDS to the Defendant. Under the
terms of the easement grants the
a key to the gates leading to the levees (30,
express
befits of the retained rights flow to the
67-A and 67-C) to gain access to his nd.
and assigns of the Grantors.
The District denied Ratner's applica, tionlafor
Thereafter, Ratner appeared before
sucencemrs
Plaintiff is such a successor. Thi3affilda
a key.
the governing board and demanded the ac
vit is unrefuted by the Defendant.
cess to his lands which had been guaranteed
119. The affidavit of the Plaintiff
in the easement agreements. Again, the
states that at the time he purchased the
District denied Ratner the right of access,
RATNER LAND he was aware of the
Sou
language
which ins
on behalf
the use 0 i.
would in
with Plai
purposes
language
and egrw
Plaintiff
in detern
This stat(
not refut
[1] At(
that the cit
tion to ent
der requiri
bridge. S(
General St
(Fla. 1st I
case does
administra'
adequate.
[2] The
(paragraph
only issug,'
who is 60
the obstru
District ha
point main
tion of the
clear that
(Plaintiff
exercising
estate. TV
it might
The instan
that the I
ment to tf
We rind r
that the I
exercise 0
E3,41 ' :
whether t
the Distri
for Mr. I
place. T)
of the dh
Mr. Ratn
purposes
juri3dicti(
86-401L
3
�
SOUTH FLORIDA WATER MANAGEMENT DIST. v. RATNER Fla. 1059
Cite " nxApp.. 337 Sold I033
language in the EASEMENT DEEDS
which instruments were prepared by or
the controversy and to enforce its order.
See City of Miami v. Keton, 115 So.2d 547
on behalf of the Defendant, stating that
(F1a.1959). Nevertheless, it is apparent
the use of the easement granted therein
that the land owner is entitled to access but
would in no way prohibit or interfere
not to a particular bridge. He owns lands
with Plaintiffs use of the land for the
within the flood control areas which are not
purposes stated in the Deeds and the
contiguous.
language granting the right of ingress
If Mr. Ratner is entitled to. a bridge, does
and egress to and from the property, and
• it follow that each of the other land owners
Plaintiff strongly relied on said language
in the flood control area is entitled to a
in determining to purchase the property.
bridge? If the question is answered in the
This statement under oath by Plaintiff is
affirmative, is Mr. Ratner entitled to a
not refuted by the Defendant."
bridge for each area in which he has re-
(1) At oral argument, it was suggested
served rights? These questions arise from
that the circuit court was without jurisdic-
the appellee Societies' brief, contending
tion to enter the mandatory injunction or-
that summary judgment was not proper
der requiring the District to construct a
because there existed genuine questions of
bridge. See State ex rel. Department of
material fact. Affidavits submitted by the
General Services v. Willis, 344 So.2d 580
District claim that • it is not necessary to
(Fla. 1st DCA 1977). The record in this
provide the type of access sought by Rat.
case does not support the assertion that
ner's complaint and that access is possible
administrative remedies were available and
without the bridge. It is pointed out that
adequate.
Mr. Ratner has not shown that he is In any
[2] The trial court stated in its findings
way attempting to engage in any use which
(paragraph "7," supra) that ". the
requires a particular access.
only issue to be determined by this Court is
[5] The objection is well taken. The
7!
who is to bear the expense of overcoming
complaint, in four counts, alleged that the
the obstruction to access ." The
District had failed ". . . to provide
District has met this issue in its brief by a
Plaintiff with a reasonable method of ob-
point maintaining that the proper construc-
taining access to his property ."
tion of the instruments themselves makes it
The prayer of Count 1 sought an order
dear that the grantors and their successors
enjoining the District from interfering with
'
(plaintiff Ratner) must bear the cost of
the plaintiff's right of ingress and egress to
exercising rights reserved to the servient
his land, and ". requiring the De -
estate. There is logic to this argument and
fendant to provide the Plaintiff with rea-
it might well prevail in an ordinary case.
sonable access ." [Emphasis sup -
The instant case is distinguished by the fact
plied] Count 2 sought a rescission of the
t4
that the District has created the impedi-
- flood control contracts. Count 3 sought a
:q
meat to the exercise of the right reserved.
declaration of a common law "way of neces-
?.�
. We find no error upon the courts decision
sity," Count 4 sought a declaration that
:
that the District must pay for a reasonable
the Ratner lands were not within the "re -
exercise of the reserved rights.
quired area" and should be excluded from
13,41 The only remaining question is
lawfully required
the flood control area It is readily seen
that the trial court has gone well beyond
whether the circuit court
the District to construct a particular bridge
the relief requested. A review of the rec-
for Mr. Ratner at a particular time and
ord convinces us that the pleadings, deposi-
.:` t
place. The circuit court having jurisdiction
tiona, answers to interrogatories and admis-
of the dispute and having determined that
lions on rile, together with the affida%rits,
Mr. Ratner had a right of access for the
do not support the full extent of the relief
:
- purposes at forth in the reservation, had
granted. Cf. Wells v Thomas. 89 So.2d 259
jurisdiction to proceed to a settlement of
(Fla.1956).
56-401
1060 Fla.
357 SOUTHERN REPORTER, 2d SERIES
We have considered the other points
raised by the parties and hold that none
presents reversible error -
We, therefore, affirm the judgment en.
tered so far as it determines plaintiff's
rights to reasonable access, and the Dis-
trict's obligation to provide that access.
We reverse that portion of the judgment
which requires the District to provide a
bridge at a certain time and place. We
remand the cause for further proceedings in
accordance with the views herein expressed
and with directions that the court consider
the necessity for action by the District to
provide access to all owners when it has
been demonstrated to the court that there
is a need for that access.
Affirmed in part, reversed in part and
remanded with directions.
w
O �REi UUMBfaSrSRM
Jerry WOOD, Aapellant,
STATE of Florida, Appellee.
No. $H-49.
District Court of Appeal of Florida,
First District.
April 21, 1978.
a consecutive sentence without first having
given him an opportunity to withdraw his
guilty plea, which was vitiated because
state attorney had violated his plea bargain
agreement to recommend a concurrent sen-
tence.
Reversed.
The Circuit Court, Leon County
Charles E. Miner, J.. entered judgment an
sentence on defendant's guilt D lea t
charge of cocaine possession.
appealed. The District Court of Appeal
Smith, J., held that five-year sentence
which was entered on defendant's guilt
plea to charge of cocaine possession, w
not lawfully made to *run consecutively wit
a five-year sentence he was then serving
result of his conviction for such willfully
f of n
to appear for proceedings
having been admitted to bail, inasmuch
trial court was without authority to impos
1. Criminal Law 4+991(l)
Five-year sentence which was entered
on defendant's plea of guilty to charge of
possession of cocaine, was not lawfully
made to run consecutively with a five-year
sentence he was then serving as result of
his conviction for willfully failing to'appear
for proceedings in such case after having
been admitted to bail, inasmuch as trial
court was without authority to impose a
consecutive sentence without first having
given him an opportunity to withdraw his
guilty plea, which was vitiated because
state attorney had violated his plea bargain
agreement to recommend a concurrent sen-
tence. West s F.S.A. §§ 843.15, 893.13(i)(e).
2. Criminal Law a273.1(2)
When sentencing court has received
and approved a plea of guilty entered upon
a bargain for a prosecutor's recommenda-
tion. of a certain or maximum sentence,
state attorney and his assistant.+ should
thereafter make no utterance tending to
compromise whatever persuasive effect the
in.court recommendation may have had;
representatives of that office shall, when
requested by court or its officers charged
with presentence investigation, repeat that
recommendation with like effect as when it
d was originally made on plea day.
t 3. Criminal Law a-9800)
When sentencing court has received
p and approved a plea of guilty entered upon
y a bargain for a prosecutor's recommenda.
as tion of a certain or maximum sentence, all
h written communications by state agents to
as court on subject of sentencing shall be ex-
g hibited to defense counsel before sentenc-
ter ing, so that he or she may assure that no
as deliberate or inadvertent prosecutorial un-
e dermining of recommendation has occurred;
inasmuch
and proba•
attorney f
presentenc ; }
sations m:
tion portic
its entiret
shall on
counsel
t
4. Crimin
Trial
otherwise
sentence
exercised
counsel v
ed guilty
fit as prc
tain disc
Criminal
+1
._ems
5. Crimi
Whi
plea tel
prosecul
sentence
siders I
in reliai
in accor
and on
sedum
gained
accuses
finding
cused t
plea b.
there is
elation
tense i
munic
d'cscset
33 do
Proce,
�Jud
er, fo
Rol
86-~4Q1. -
RITE --RESEARCH IMPROVES THE ENNrIRONDIENT V. COSTLE
R1TF.—RESEARCH rLMPROVES THE
ENVIR0NL'DIENT, INC-,
Plaintiff -Appellant,
V.
Douglas DI• COSTLE, Administrator of
the Environmental Protection Agen-
cy, Etc. et al., Defendants -Appellees.
No. 78-2278-
United States Court of Appeals,
Fifth Circuit '
May 26, 1981-
1:
Nonprofit corporation, whose mem-
i
hers included sty taxpayers, residents
and homeowners, sought a declaratory
judgment that the city's proposal for the
installation of a research project todem-
.-T
onstrate the method of sewage disposal
termed "deep current assimilation" w•as
`
not in conflict with federal, state and
local pollution control laws. The United
States District Court for the Southern
District of Florida, SYm• DL Hoeg eler. J.
78 F.R.D. 321. rendered summary judg-
ment against the corporation, on the
r�
ground that it bad no standing to sue.
Court Ap-
Corporation appealed• The of
peals. Thomas A. Clark, Circuit Judge,
f ' '
held that, in light of the Clean Stater Act
'•'
provision specifically autholrW citizen
�v-
suits. and in light of the allegations in the
7451
L Federal Civil Procedure e=103
Not -for -profit organization satisfies
Injury in fact requirement of Article III
when it alleges that it or its members will
be affected in any of their activities or
pastimes by allegedly illegal actions of
which it complains. U.S.C.A.Const. Art.'
3. § 2
2. Federal Civil Procedure e>103
Nonprofit corporation made up of
city taxpayers, residents and homeown-
ers, had standing to sue Environmental
Protection Agency' alleging that EPA
wrongfully denied. city permission to in-
stall research pilot project to demonstrate
method of sewage disposal termed "deep
current assimilation;' in light of Clean
`Pater Act provision specifically authoriz-
ing citizen lawsuits, and in light of alle-
gations of corporation's complaint that its
members would be adversely affected by
pollution of water and contamination of
marine life attendant uport alternative
method of sewage disposal, which in-
volved secondary treatment of m%v sew-
age through chemical processing. Feder-
al Water Pollution Control Act Amend-
ments of 1972, § 505 as amended 33 U.S.
C.A. § 1365; U.S.C.A.Const Art. 3. § 2
3. Federal Civil Procedure ca103
While every lawsuit which receives
judicial review on merits must fall within
scope of Article III, it is matter of black
letter law that Article III does not limit
congressional power to define categories
of individuals as parties sufficiently ag.
grieved by particular governmental ac-
tion to warrant statutory right to sue.
U.S.C.A•Const Art S. § 2 .
?= corporatIon's complaint that its members
would be adversely affected by pollution 4. Health and Environment �25.?(13)
of the water and contamination of ma- While federal court has no authority
liar life, the corporation had standing to to direct Administrator of Environmental
._ to nt permit for
Protection Agency 8'r'a Pe
sue. demonstration sewage disposalproject,
Reversed and remanded. court does have authority to direct Ad-
d! Sympw. SyV&bl &A Key Number Claesi&WOR
COPYRIGHT Q 1931, by WEST PUBLISHING CO.
Number ChWn-
The Synopses. Syllabi sad Keynioe of the surf.
CaLm Constitute me P&A of the oa' t
.1
�4
1 r� •
.0%
u�t•_ fr�Li�..�J�+:�-.3 __ :?. _,.., ..mot r..f► _....�o...i� _'�1 � '•i�si._. ..!i��': L�t•�.t.�
86-401' •-
7452 ' RITE —RESEARCH IMPROVES THE ENVIRONMENT Y. COSTLE
ministiator to consider fully application
on merits and Administrator has no dis-
cretion to reject, out of hand, such appli-
cations; neither does Administrator have
discretion to impose arbitrary geographi-
cal limitations which were never intended
by Congress. Federal Water Pollution
Control Act Amendments of 1972.
§ 301(bX1)(B). (h) as amended 33 U.S.
C.A. § 1311(bX1XB), (h).
Appeal from the United States District
Court for the Southern District of Flori-
da.
Before GOLDBERG. CHARLES
CLARK and TH01tAS A. CLARIS, Cir-
cuit Judges.
THOb4AS A. CLAM Circuit Judge: .
RITE -Research Improves the Environ-
ment, Incorporated, plaintiff -appellant in
this action, appeals the award of summa-
ry judgment in favor of defendants. The
federal defendants in this action are
Douglas M. Costle, Administrator of the
Environmental Protection Agency, and
the Environmental Protection Agency
("EPA"); the state defendants are the
State of Florida and the Department of
Environmental Regulation ("DER'); the
metropolitan defendants are the Miami -
Dade Water and Sewer Authority and
Metropolitan Dade County. The City of
Miami Beach was joined as a necessary
party defendant In October, 2976, RITE
sued the defendants under the Federal
Water Pollution Control Act Amend-
ments of 197:4 88 U.S.C. § 2251 et seq.
("F•WPCA'), and In January,1978, RITE
amended Its pleadings to include suit un-
L The bond issue was validated in 1972. and the
validation was upheld on appeal in Sate Y. City
der the Clean Water Act of 1977, 33
U.S.C. § 1365 ("CWX). The trial court
granted the defendants' motions for sum-
mary judgment on the ground that RITE
had no standing to maintain the action.
78 F.R.D. 321, D.C. We reverse.
I. Phase I: The Initial Application
Plaintiff RITE is a nonprofit corpora-
tion whose members are committed to
the installation of a research pilot project
to demonstrate a method of sewage dis-
posal in Southeast Florida termed "deep
current assimilation." RITE contends
that this method of sewage disposal is
uniquely suited to the geography of
Southeast Florida because of the unusual
proximity of the Gulf Stream which
would alleviate the necessity of secondary
treatment of raw sewage through chemi-
cal processing.
On November 2, 1971, the City of Mi.
ami Beach approved a $10,600,000 bond
issue for the purpose of building a sew-
age transmission line from Miami Beach .
to a secondary sewage treatment plant
located on Virginia Key. Shortly after
validation of the bond issue; however,
the City of Miami Beach requested infor-
mation on deep water assimilation of
sewage effluent as an alternative to the.
Virginia Key sewage treatment plan.
Although the City had already entered
Into contracts with the Miami -Dade Sew-
er and Water Authority, the City had
recently received information regarding
new research by the Sea Grant program
at the Rosenstiel School of blarine and
Atinospheric Sciences, at the University
of Miami. This research suggested that
deep current sewage assimilation would
be safer for effluence from residential
of Miami Beach. 272 So.2d 151 (F1a.1973).
A
RITE=RESEARCH VNIPROVES THE E► VIRONIIIENT Y. COSTLE 7453
communities than the secondary treat-
ment with its near shore chemical dis-
charge.=
As a result of this scientific data, on
November 11, 1974, the City Commission
voted to submit an application to the
EPA for approval of a deep current as-
similation project. The application was
filed pursuant to 33 U.S.C. § 1255 of the
F%VPCA•whieh provided for funding with
special federal grants for research and
developmenL3 Included with the City's
application were a description of the pro-
posed project by the Director of Public
Works for the City of Miami Beach, the
Carpenter report, supra, "Deep Water
Assimilation of Miami Beach Waste
Waters: Evaluation of Compliance with
Federal Regulations and Criteria, .Ocean
Dumping,'.' and a legal opinion letter by
special counsel for the city, concluding
that the deep current assimilation project.
was "supported by substantial competent
evidence and in axordance with the es-
sential requirements of law including
Public Law 92-500 (FWPCA)." Further-
more, the application expressed the City's
belief that "Moth the capital investment
and the operating cost of the deep cur-
rent assimilation method of disposal
would be approximately %th that of sec-
ondary treatment" The application con-
2.• VoL 1, R. 35. The City of Miami Beach re-
quested Dr. James C. Carpenter of the Sea
Giant Programs to summarize research on deep
current asiimoatloa Carpenter Concluded
that:
,Miami Beach is located in an extremely ad•
vantageous environment with respect to the
design of ocean OW&I . Water depths of 400
feet are present only 3 roes offshore and the
Florida Current is present at that distance to
provide a continuous supply of water suitable
for ditudow. .. In additb4 there Is a
temperature decrease with depth that is
present throughout the year. so that a diffus-
er system could be used to avoid having the
discharge appear In the surface watem
eluded that the "City Council and the
City Administration of Miami Beach con-
sider the project to be sound and merito.
rious and to offer a means of demonstrat-
ing how at least a half a billion dollars
can be saved in waste water treatment in
Southeast Florida."
The EPA took the position that the
proposed project was not permissible un-
der the FWPCA, and on January 23,
1975, formally denied the application.
The EPA contended • that Section
301(bxl)(B) of the FWPCA, 33 U.S.C.
§ 1311(b)(1XB), required that all sewage
effluents undergo secondary treatment,
and informed the City by letter that:
P.I.. 92-500 requires secondary treat-
ment for all discharges from publicly
owned treatment works by 1977/197&
We have concluded that legally there
can be no waiver of the secondary
treatment requirement even fora re-
search project Therefore, we could
not participate in the project ... un-
less existing Federal laws were amend-
ed.
II. Political and Economic Pressure
On appeal we must focus upon the
.facts following the EPA's denial of the
city's application because of appellant's
3. 33 U.S.C. 4 1255 provided In relevant part:
(a) the Administrator is authorized to con-
duct in the Environmental Protection Agen-
cy, and to snake grants to any Stfte, munici-
pality. or Intermunicipal of interstate agency
for the purpose of assisting In the develop-;
aunt of—
(1) any project which will demonstrate a
new or improved method of preventin&
reducing, and eliminating the discharge
Into any waters of pollutants ...: or
(2) any project which will demonstrate ad-
vanced waste treatment and water purifi-
cation methods.
86-401- .
�t
0
7454 RITE —RESEARCH IMPROVES THE ENVIRONMENT Y. COSTLE
contention that the federal government
engaged in a pattern of conduct amount-
ing to "bureaucratic blackmail" in order
to illegally coerce the city into complying
with the EPA's position requiring second-
ary treatment. On February 19, 1975,
the Miami Beach City Council reapplied
for approval of the research project be-
cause of its continued belief that the
project was lawful under the FWPCA,
and because of "the magnitu4e of the
" ings in public funds involved." (Vol:
I, 'R. 9). On May 14,1975. the City called
a meeting during which special legal
counsel for the City reasserted that the
demonstration project was lawful. The
Council then voted to authorize the filing
of suit in federal district court against
the EPA, seeking a declaratory decree
"that the City's proposal for a demonstra-
tion project is consistent with federal
state and local pollution control. laws."
Id
Following 'the City's authorization of
• suit, RITE contends that. the Environ-
mental Protection Agency, and Adminis-
trator Train indicated to City counsel
representatives, and to the Florida De-
partment of Environmental Regulation
(DER) that federal funding for sewage
treatment would be 'withdrawn unless the'
City agreed before blay 30, 1975, to pro-
ceed without modification according to
the Environmental Protection Agency
original proposal. (VoL I, IL 10). RITE
further contends that the EPA made
statements that, in addition to the loss of
$13,000,000 in sewage project funds, the
City of Miami Beach could expect "to
have difficulty in the future in connec-
tion with any federal funding of 'HUD
g nts i connection with public hous-
inZd
&~
In its complaint, plaintiff alleges suffi-
pent facts to establish a prima facie case
that coercive political and economic pres-
sures were brought to bear upon the City
of Miami Beach, with the result that the
City withdrew its opposition to the Ad-
ministrator's interpretation of the
FWPCA. Significantly, only one week
after the City voted to authorize suit, the
City voted to rescind its previous autho-
rization. The Councilmen at that May
21, 1975, meeting furthermore confirmed
that the reason they were changing their
vote, and were not allowing the special
counsel to proceed with a declaratory
judgment suit, was because they did not
want to risk retaliatory action by the
federal government. At the May 21 City
Council meeting one City Councilman
stated that:
Mhe proponents of entering into suit
speculated that we would not be at-
tacked or punished [on bray 14, 1975]
However, I would like to point
out that as of this morning, a telegram,
forwarded to us by E.P.A. ... takes
this discussion out of *the arena of spec-
ulation and puts us into the arena of
fact .... Now we can, of course,.
speculate further as to what a Federal
Judge or some other benefactor might
or might not do, but we know what
-we're up against. We're up against
the immediate loss of $700,000 and pos-
sibly more, we're up against a written
threat to remove the $13,000,000 Feder-
al funding for a transmission line, we
are up against a written threat that we
may well be forced to comply.
Vol. IV, IL 743-4
. Similarly, RITE'S contention that the
City felt intimidated by the capacity for
"built-in retribution" , inherent in the
EPA's processing of federal H.U.D.
grants i,.supported by the statements of
City Councilman Redford:
I will say this, them is one built-in
retribution and It is not done from any
Bfs-4U1. .
RITE=RESEARCH hIPROVSS THE ENVIRONMENT v. COSTLE 7455 •
rancor whatsoever and it is public been effectively denied the right to ob-
housing. Public housing has to check twin the best practical technology at the
through E.P.A. before it is granted. It most reasonable cost, in contravention to c e }
is a normal course of events, the public the FWPCA. Additionally, RITE sought t.
housing. has to go through E.P.A. to see to protect for itself and its members the
if there's a proper sewage disposal s Ys- Biscayne yfish-
tem. p per g po 3 estuarine areas of Bisca a Bay for
This was jangled before us for ing, swimming, and recreational activity, t •} '-�
many years, saying, "you're not going which areas allegedly wodld be harmed i
to get any H.U.D. grants because by failure to comply with the provisions
' H.U.D. has to check through the of the FWPCA.
E.P.A., and if you don't have the sys-
tem, you don't get it," and we have had III• Phase 11. The 1977 Clean
'problems in the southern part of Dade Water Act
County on housing because of not hav- While this litigation was pending. Con-
ing an accepted system .... gress amended the FNVPCA by passing
Vol. -IV, R 75W the Clean Water Act ("CNVA") of 1977
When the City of Miami Beach with- (PI... 95 -217). The CNVA was signed into
drew its authorization to sue, plaintiff law on December 27, 1977, and contained
RITE filed suit alleging.that its mem- several sections clarifying the precise is-
bem which included Miami Beach tat- sues over which the parties had been
payers, residents, and homeowners. had litigatings -
4. For further evidence Which substantiates ap. protection of public water supplies and the
pellanes "bureaucratic blackmail" contentions protection and propagation of a balanced,
see Vol. V, R. 1050-51. including statements by indigenous population of shellfish. fish and
City Councilman Spaet and Mayor Rosen. wildlife. and allows recreational activities.
ilL The relevant section of the C%VA. Section in and on the water.
301(h), (33 U.S.C. 5 1311(h)), amended former (3) the applicant has established a system
Section 301(b)(IXB) and stated: for monitoring the impact of such dis-
Modification of Secondary Treatment Re- charge on a representative sample of
quirernent aquatic biota. to the extent practicable.
Sec 44.:Section 301 of the Federal Water 't (4) such modified requirements will not re• '
Mudon Control Jul is amended by adding suit in any additional requirements on any
at the end thereof the following new subset- other point or nonpotnt source.
don: '(5) all applicable pretreatment require•
• . '•(h) The Administrator. with the concur- ments for sources introducing waste Into
recce of the State, may Issue a permit render such treatment works will be enforced;
• sectfon.al which modites the requirements (6) to the extent practicable, the applicant
of subsection (bXIXB) of this section with has established a schedule of activities de•
respect to the discharge of any pollutant In signed to eliminate the entrance of toxic
an existing discharge from a publicly owned pollutants from nonindustrial sources Into
treatment worlds into marine waters. if the such treatment works;
applicant demonstrates to the -satisfaction of (7) there will be no new or substantially
the Administrator that— Increased discharges from the point source
(1) there Is an applicable water quality o! discharge specified in the permit; • • r M'=;
standard specific to the pollutant for which
(6) funds available to the owner of r i +
• the modification Is requested, which has any j L' •f fi
been identified under section •304(a)(6) of such treatment works cadet Tide ii of this . t i
Act will be used to achieve the degree of
this Au: -
Q) such modification requirements will not effluent reduction required by section
interfere with the attainment or mainte• 201(b) and (g)(2)(A) or to carry out the! ; t•
mane of that water quality which assures requirements of this subsection. 7'
17 1
?456 MITE• —RESEARCH IMPROVES TIIE ENVIRONMENT v. COSTLE
Baso upon these amendments. RITE
filed supplemental pleadings in support
of its motion for a declaratory judgment,
contending that "House Conferees have
basically agreed that the RITE position
was correct and that [the] FWPCA did
not require the single science of waste
water treatment as the EPA had incor-
rectly contended:' (Vol. VI, P. 1248).
Despite the fact that the CWA amend-
ments authorized the Administrator to
modify the secondary treatment require-
ments of Section 301(b)(1)(B). during
Senate hearings the EPA Assistant Ad-
ministrator Thomas C. Jorling expressed
misgivings regarding the ocean outfall
alternative. When pressed by Senator
Anderson to explain the EPA position on
the ocean outfall alternative, the follow-
ing dialogue- occurred:
SE 4ATOR ANDERSON: In testimo-
ny that we took in Washington. and I
think it is the same in many of our
t*istal communities, they seem to take
the position that if you dump the ef-
fluent into saltwater,' that all your
problems are solved, you don't have to
worry about spending money setting
up a secondary treatment facility. Are
you as confident as those municipal
people are that that is a wise sway to
set up a water treatment plant?
MR. JORLING: • No, Senator, I am not
as confidenL6
Six months later, on December 7. L977,
Administrator Jorling announced that
the EPA intended to impose a geographi-
For the Durpows of this subsection the
phase. the discharge of any pollutant Into
marku waters' refers to a discharge into
• deep waters of the temitodd sea or the
"Were of Me crintfguoos zone. or into saline
estuarine waters where there Is strong tidal
movemwt and other hydrological and =eo-
logkxl characteristics which the Administra-
t+or determines necessary to allow compliance
cal limitation upon Section 301(h) in a
letter addressed to Senator Muskie,
Chairman of the subcommittee on Envi-
ronmental Pollution of the Committee on
Environment and Public Works. In that
letter Administrator Jorling stated that
the CWA provision relating to municipal
deep ocean outfalls would only be applied
in:
a limited number of areas; California
..., San Juan, American Samoa, the
Virgin Islands, Honolulu, Seattle and
Anchorage. I would note that this list-
ing does not in any way prejudge the
question of whether outfalls in those
areas would, in fact, qualify under this
section." I -
In response to Administrator Jorling's
letter, Senator Gravel, who had originally
drafted the Section 301(h) provision, stat-
ed that' the EPA was improperly at-
tempting to limit the ocean outfall alter-
natives to specific geographical locations.
Senator Gravel stated:
Finally, a word about the municipal
modification procedure. The confer-
ence report accurately reflects my con-
cerns about the requirement that cer-
tain coastal communities should pro-
vide secondary treatment of conven-
tional pollutants when natural action
of the receiving body eliminates the
need to do so. The conference report
mentions several communities that
might be likely to qualify for the modi-
fication provision. When I introduced
the measure I did not intend to limit
with paragraph (2) of this subsection, and'
section 101(a)(2) of this Act." - -
6. - Repdnted in 95th Cong, 2d Sess.. Legislative
History of the Clean Water Act of 1977. Vol. 4.
at 1113 (1977).
7. Reprinted in 95 Cong.Rec S 19.643-46 (1977)
(daily ed. Dec 7, 1977) (letter to Seri. blusWe).
s
RITE— RESEARCH IMPROVES THE ENVIRON►NIENT Y. COSTLE 7457
the application of the provision to An-
chorage, Seward, and a few other
cities. I intended to allow any city
that can meet the geographical re-
quirements to come forward and at-
tempt to prove their case. (That might
even include communities currently un-
der schedule to provide secondary
treatment) This is my understanding
of the conference's intention as well. I
can understand the EPA's concerns
about the administrative burden this
provision might place on the agency,
but I might remind my friends at the
agency that we should not legislate
unreasonably so as to accommodate an
agency. There are a number of com-
munities that have been and will be
subjected to administrative burdens
way beyond their financial and admin-
istrative capacity because .of the need
to comply with the secondary treat-
ment requirement With this modifi-
cation procedure for coastal communi-
ties that qualify, and the other provi-
sions in the bill for alternative and
innovative technologies, as wen as re-
cycle capabilities, the Congress has an-
nounced its intention to put some sense
into the treatment of municipal wastes.
The modification procedure, then.
- ... denies no coastal community with
the qualifying geographical character-
istics the right to show its ability to
meet the other conditions of the provi-
sion-" •
As a result of the passage of the CNVA
amendments, the City of Miami Beach
remained hopeful that the demonstration
project. could still be utilized in order to
8. 95 ConS.Ree S 19,679 (1977) (daily ed. D=
7.1974
* VOL VI. R.1328 (minutes of the City Commis -
Sim tneetin*
save the municipality considerable funds.
On January 4, 1978, the City Commission
(formerly the City Council) met and
adopted a resolution which "respectfully
requested the Federal Court for its earli-
est possible ruling" on the pending litiga-
tion. The City Attorney attached a copy
of the resolution to a motion for expedit.
ing cause in which the City informed the
court that it had delayed the final award
of secondary sewage construction con-
tracts pending a decision on the merits.
(Vol. VI, R 1287).
IV. Renewed Pressure
The EPA responded to this information
by threatening "enforcement action"
against the City if it were to delay fur-
ther construction of the secondary treat-
ment facilities. On January 27, 1978, B.
Stallings Howell, Florida Project Mana-
ger for EPA Regional Office IV, wrote to
the City Manager of Miami Beach that
"[a]ny delay in initiation of construction
will place the City of Miami Beach in
violation of the Enforcement Compliance
Schedule Letter (ESCL) which is part of
the discharge permit, and would there-
fore require the appropriate enforcement
action:" (Vol. VI, R. 1302).
Two weeks after receipt of the EPA's
letter the City Commission called an
emergency meeting over the weekend
which only.four of the seven City Com-
missioners were We to attend. Fearful
of the most recently threatened federal
action, the Mayor attempted to pressure
the Commission into awarding the con-
tracts. Despite the absence of three
Commissioners, the contracts were
awarded. Ten days later, the federal
Maw Haber. This is one of the most impor-
tant decisions that will be made by this Com-
mission. 1 do not Mow what the time ele-
ment Is. I've read the memos- They Indicate
ss-4o1...
?458 RITE —RESEARCH IMPROVES THE ENVIRONMENT Y. COSTLE
district court refused to consider RITE's
suit on the merits, holding that RITE had
no standing to assert its claim. From
this order, RITE appeals.
V. Standing
The district court dismissed plaintiffs
suit on the ground that RITE had no
standing to maintain the action. Because
appellant has successfully asserted stand-
ing on two grounds, we reverse.
[1] We turn first. to the district
court's conclusion that RITE seeks to vin-
dicate only "a generalized grievance" and
has alleged an injury which is "simply too
abstract to constitute 'injury in face."
There is absolutely no question that, un-
der Sierra Club v. Morton, 405 U.S. 727,
92 S.CL 1361, 31 L.Fd.2d 636 (1972). a
not -for -profit organization satisfies the
Injury in fact requirement of Article III
.of the Constitution when it "allege[s]
that it or its members w[ill] be affected
In any of their activities or pastimes" by
the allegedly illegal actions of which it
complains. Id. 92 S.Ct. at 1366. The
Supreme Court in Sierra Club premised
its standing analysis upon the principle
that "[W]here the party does not rely on
that there Is some very serious time consider-
ation, that the Federal and State agencies are
Matching us with a view toward trying to
detenNne wbether or tat we are being time►
iy in the execution of our contracts and obit.
gatimm I would say that this is a decision to
be made. of couesk and to be guided by the
Chty Attorney and the City Manager. 1 will
have to excuse myself momentarily. but 1 do
want to say on the record, having followed
thb tattm having listened to all the argu.
meats pro and con, having read all of the
do=wAM is this text today and the ones
that preceded It, although theca are issues
and obviously they're going to be presented
today as they have before. I want to say
clearly and I'm volunteering it. that if I were
bere to vote on this matter. and I hope that If
there are only four members of the Commis -
Sion remaining at this table. those four mem-
any specific statute authorizing invoca- '
tion of the judicial process, the question
of standing depends upon whether the
party has alleged a'personal stake in the
outcome of the controversy."' Id. 92
S.Ct. at 1364. The Court thus concluded
that the Sierra Club had failed to estab-
lish a personal stake in the outcome be-
cause -that organizations pleadings con-
tained no allegations that its members
would be directly affected by the pro-
posed Mineral King development.
[2) In the instant case, RITE has al-
leged precisely what Sierra Club did not.
Appellant has virtually tracked the Su-
preme Courts language by specifically
alleging in its verified complaint that
RITE members will be adversely affected
by the pollution of the water and the
contamination of the marinelife. • RITE
members have therefore alleged a con-
crete -"injury in fact'=the -injury which
flows from the fad that RITE members
will no longer be able to swim or fish in
the waters surrounding Miami Beach be-
cause of the chemical contamination
caused by secondary treatment.10 Com-
paring the Court's language in Sierra
Club and the allegations in RITE's com-
bens will act If action is needed on this or any
other matter.
Mr. Sahli Mr. Mayor, you're asking four
CommIssioners to act on a contract....
Mayor Haber. No. no. I am not asking four
Commissioners to act. I am saying that you
will be guided as 1 would be guided by the
City Manager and the City Attorney.
Mr. Sahli, Fine and dandy, yes: but this Is a
seven million dollar contract.
Mayor Haber. That is correct '
Mr. SahL And I doubt It very, very much if
any four out of seven In their right mind in
any Commission win go ahead and take a
vote where a $7 million contract is staring
them In the face, This Isn't buying a couple
of frankfurts.
10. See Vol. I at R 2. where the complaint
'states: `RITE seeks to protect for itself and its
members the estuarine areas of Biscayne Bay
1) 1
RITE —RESEARCH Ii11PROVES THE ENVIRONMENT v. COSTLE 7459
plaint. we must conclude that appellant
has alleged an "injury in fact" within the
meaning of Article III of the Constitu-
tion, and therefore RITE has standing to
obtain judicial review on the merits.
But the appellant here asserts an even
stronger claim for standing than that al-
leged by the Sierra Club litigants. As
mentioned above, the Coures reasoning
was premised upon the fact that Sierra
Club could point to no specific statutory
provision authorizing federal suit. In the
instant case appellant brings suit pursu-
ant to Section 505 of the Clean Water
Act, 33 U.S.C. § 1365, a provision which
specifically authorizes Iawsuits such as
this *one in the federal courts. Section
505 states:
Citizen Suits '
(a) Except as provided in subsection
(b) of this section, any citizen may com-
mence a civil action. on his own be-
half
(1) against any person (including
(i} the United States, and (ii) any
other governmental instrumentality
or ageitcjr to the extent permitted by
the eleventh amendment to the Con-
stitution) who is alleged to be in vio-
lation of (A) ari effluent standard or
limitation. under this chapter or (B)
as order issued by the Administrator
• or a State with respect to such a
' standaid or limitation, or
(2) against the Administrator
where there is alleged a failure of
toe aim& swimming, and re4reatlonal activlty
and the ocean waters adjacent to and off the
Mj„
coast of am of Miami Beach-"
11. In Lk ds R. I v Richard D.. 410 U.S. 614.
617--19. 93 S.CL 1146. 1148-1150. 35 LF.d.2d
536 C19M the mother of an illegitimate child
brought a class action seeking fed:ral inJune-
tive rdiet against state ofiiciats who. while
prosecuting fathers of legitimate children for
nonsuppor% refused to prosecute the fathers of
the Administrator to perform any
act or duty under this chapter which
is not discretionary with the Admin.
istrator. .
The district courts shall have jurisdiction,
without regard to the amount in contro-
versy or the citizenship of the parties; to
enforce such an effluent standard or
limitation, or such an order, or to order
the Administrator to perform such act or
duty, as the case may be, and to apply
any appropriate civil penalties under
section 1319(d) of this title.
The trial court failed to mention Sec-
tion 505 in its memorandum opinion ap.
parently concluding. in reliance upon
Warth v. Seldin, 422 U.S. 490, 95 S.Ct.
2197,45 LEd.2d 343 (1975), that Congress
could. grant an express right of standing
only to persons who would otherwise be
barred by prudential, and not constitu-
tional rules of standing.. Appamntly, be-
cause the trial court concluded that RITE
members were not "injured in fact," the
court also concluded that Section 505
would be inapplicable-
. tiife are not persuaded that this ends
the matter. First, RITE has met the
constitutional standing requirement by
properly pleading an "injury" within the
meaning of Sierra Club. Second, it is
well settled that "Congress may enact
statutes creating a legal right, the inva-
sion of which. creates standing. even.
though no injury would exist without the
statute." U Linda P. S. v. Richard D..
Wegitimate children. Justice Marshall. for the
Coutt denied standing stating that:
"Although the law of standing has been
greatly changed in the last 10 years, we have
steadfastly adhered to the requirement that.
at least In the absence of a statute eapresdly
cmierrins standirtz federal plaintiffs rust
allege some threatened or actual inquiry re -
suiting from the putatively illegal action.
0
86-41 _.
00,
7460 RITE —RESEARCH IMPROVES THE ENVIRONMENT v. COSTI.E
410 U.S. 614, 617 n. 3, 93 S.M. 1146, 1148
Appellant thus asserts two grounds for
n.3, 35 LEd.2d 536 (1973).
standing —one pursuant to Sierra Club,`.•sa
ir,�
The district
the other pursuant to Section 505, and
{ '�'1'�'�'
t�
{
131 courts reliance upon
the axiom that prudential, but not consti-
appellant's reliance upon their combing-
tion is well Those courts which
+ 41 .1.
t • +
tutional standing requirements may be
g q Y
placed.
have considered citizens' suits under the
waived b legislative enactment does not
yFWPCA
therefore fully comprehend the issue.
have suggested that the two are
i d+i
While every law3uh which receives Judi-
interwoven, with the effect that proof of
"injury"
cial review on the merits must fall within
under Sierra Club greatly{
strengthens a citizen's right to sue under
t�
the scope of Article III of the, Constitu-
lion, it is a matter of black letter law
Section 505. For example, in National
that Article III does not limit congres-
Sea Clammers Assn. v. New York, 616
sional power to define categories of indi-
F.2d 1= (3rd Cir. 1980), an association
viduals as patties sufficiently aggrieved
of fishermen sued federal, state, and local
by a particular governmental action to
officials and the EPA to enjoin the dis-
warrant a statutory right to sue. As
charge of toxic sewage which contami-
Professor Lawrence Tribe noted in Amer.
nated the shellfish and marinelife in the
lean Constitutional Law, page 80, (Foun-
waters where plaintiffs fished.. The asses
dation Press,1978):.
ciation alleged a violation. of the FNYPCA,
At all events, it seems clear*that any
including the 1977 Clean Water Act"
Article III —based requirement of fac-
Amendment.. The district court granted
tual -or concrete injury serves only to
summary judgment for the defendants,
limit the ability of federal courts to
holding that the notice provision of Sec -
confer standing in the absence of stat=
tion 505(b) was a jurisdictional prerequi-
ate; Article III has not been treated as
site to suit and that the association's fait -
limiting congressional power to define
ure to give notice barred suit under Sec- �
categories of individuals or groups as
tion KWO.
parties sufficiently aggrieved by par-
ticular governmental actions to war-
The court of appeals reversed. In so
rant federal judicial intervention at
doing the court emphasized that Congress
their behest In effect, someone is 'in-
had intended to authorize standing for
jured in face by an action for purposes
the broadest possible scope of litigants in
of Article III if the person has a statu-
order to foster enforcement by "private
tort' right to complain of the action in
a federal court, a conclusion that
attorneys general":
should not seem• surprising once one
The Senate version of the bill would
recalls the separatia"f-powers roots
have permitted any person to enforce
of justiciability docttinOt
the terrors of the Act The House bill
1Z Similarly. we are not persuaded by the dis-
Court, said "[tlhe District Court made analog
triet eourt's• rename upon Schlesinger % Res
servists to Stop the War. 418 U.S. 2M 94 S.CL
to conflict -of -Interest statutes which. it said. '
are directed at avoiding circumstances o'. po.
2U% 41 LEd.2d 706 (1974). that prudential
Mles of standing should be invoked because
tential, not actual. impropriety. the have no
doubt that MCongress enacted a statute creat.
PJTVs dalm hwohes a generalized grievance
'Shared in substantially equal measure by aU or
Ins such a legal right; the requisite InJury for
standing would be found in an Invasion of that
large classes of citizens.• (Vol. VI. P. 1304).
In Schlesinger, Chlet Justice Berger. for the
tight. "Od. at 224. n. 14,94 S.0 L at 2933-2934.
n. 14).
< 86-'401• -
i
i
I
RITE --RESEARCH IMPROVES THE ENYIRONmEN'T Y. COSTLE 7461
would have limited citizens' suit nar- the court considered an action by a con.
rpwly to suits brought by two types of tractor against a regional administrator
plaintiffs. citizens of the geographic of the Environmental Protection Agency
area who were directly affected by the alleging that the•administrator had failed
alleged violation, or groups of persons to perform a nondiscretionary duty re -
who ... had shown an interest in the quired under the FWPCA. Although the
area or the controversy. The Confer- court held that the contractor lacked
ence Committee chose a middle path. standing, the court *so held because of its
limiting the § 505(a) remedy to citizens, finding that the contractor had not been
but defining citizen broadly in § 505(g). "injured in fact" within the meaning of
[Section 505(g) states: For purposes of Sierra Club. Furthermore, the court
this section the term "citizen" means a based its holding upon a line of cases
person or persons having an interest which had defined Section 505 in relation
which is or may be adversely affected.] to Sierra Club:
The intent of Congress %%as thus to In discussing standing to initiate a
provide generally for citizens suits citizen suit under the FWPCA, the
which would not be subject to the juris- court in Loveladies Property Owners
dictional amount requirement and yet Assn, Inc. v Raab, 430 F.Supp. 276
would provide for private attorney (D.N.J.1975).. aff'd. 547 F 2d 1162 (3d
general enforcement -to the maximum Cir.1976), cert. denied, 432 U.S: 906, 97
degree permitted by the Court's Sierra S.Cf: 2949, L.Ed?d 1077 (19?�, re.
• Club decision. Hed upon the Supreme Court'& decisions
M. at Mrs-- 7. in Sierra Club v. hiorton, 405 U.S. 727,
National Sea went'on to hold that the 92 S.CL 1361, 31 L.Ed.2d 636 (1972),
plaintiffs were not barred by the notice and Association of Data Processing
provision of Section 505(b) because that Service • Organizations v- Camp, 397
provision only applied when "a non -in- • U:S. 150, 90 S.CL 827, 25 L.Ed.2d 184
jured member of the public sues to en- (1970), in requiring a'plaintiff to show
force the Act." J& at 1227. The court's direct and spec injury arising out of
holding is significant in that it implies its the act complained of- See Montgom-
inverse with equal force, namely that a . cry Environmental Coalition v. J; , 366
nonanjured member of the public has F.Supp. 26L 264 (D.C.D.CL1973).
standing to sue under Section 505 provid- Id. at 1319-20. Accordingly, we hold
ed he coinplies with the notice require- that RITE has standing pursuant to Sec-
mentso- As the court put it, not'only did tion 505(a) to maintain this suit
the statute. grant a cause of -action for however, that
"the protection of individuals from injury 141 Appellees argue,
caused by the polluting activities of oth- Section 505 may not be invoked where
erg -., the Act specifically grants a the alleged misconduct involved &'duty
remedy to non -injured persons suing on which was "discretionary" under the Act
behalf of the public." I& at 1229. � Un- 33 U.S.C. § 1365(a)(2). Putting aside the
. der both holdings, RITE has standing to flawed logic in appellees contrary asser-
maintain this action. tions that the Administrator bad no au-
Sirm'larly. in J. R Brenneman Co. v. thority to permit a demonstration project
Schramm, 473 F.Supp. 1316 (E.D.Pa. which was discretionary under the Act,
1979), aff d 5S4 P24 1273 (3d Cir.' 1979), this court still cannot accept the EPA's
7462 1tITE—RESEARC11 IMPROVES THE ENVIRONMENT Y. COSTLE
contention. `Nitile we fully recognize
tection Agency continues to interpret and
that this court has no authority to direct
apply the 1977 Clean Water Act Amend -
the Administrator to grant petitioner a
meats in a manner inconsistent with the
permit under Section .12a5, the ultimate
law by imposing geographical limitations
decision on the merits of such applica-
upon the deep ocean outfall alternative.
tions being within the Administrator's
While the record on appeal satisfies this
discretion, this court does have authority
court that, during the pendency of the
to direct the Administrator to consider
litigation, the EPA improperly interpret -
fully petitioner's application on the mer-
ed the Act, this court has no way of
its. The Administrator has no discretion
ascertaining whether the EPA has aban-
to reject, out of hand, applications under
doned this interpretation subsequent to
Section I=; neither does the Adminis-
compilation of the record.
trator have discretion to impose arbitrary
Should the trial court determine both
geographical limitations which were nev-
of the above questions in the affirmative,
er intended by Congres&
the third question regarding mootness
would be whether a waiver can be obtain-
VII. Remand to -Gather Facts
ed under Florida law which gill permit
Relating to Afootness
the municipality to execute the proposed
In -remanding this case to the district
project Under Fla.Stat. § 403.086(2); s
court we fully recognize that the City of
secondary -treatment is mandated within
Miami Beach has not had the.luxury •of
the state for all sewage disposal, and
standing shill during the pendency of this
under the FWPCA a state has the right
'litigation. As supplemental pleadings
to impose standards which are more re -
have shown, the transmission line from
strictive than the federal standards.
the City of Warm Beach to the secondary
Nevertheless, under Fla.Stat_ § 403201(2)
sewage treatment plant on Virginia Rey
an applicant may obtain a variance to the
is now completedu Therefore, upon re-
secondary treatment requirement. The.
mend, we offer the following suggestions
court cannot, at this stage in the litiga-
to the district court on the subject of
lion, presume that appelianes contentions
mootness.
are moot because appellant bas never
First, the district court should deter -
variance under Florida law
mina whether the State of Florida, any
municipality or intermunicipal or inter-
Finally, we note that the City of Miami
state agency 14 wishes to file an applica-
Beach remains, technically, a party de-
tion for the deep ocean outfall alterna•
Pendant to this action. Appellant points
tine. If such an applicant is not avatia-
out, however, that numerous pleadings
ble, the case becomes moot. If, however,
submitted by the City evidence that the
one of these governmental bodies wishes
City desired to withdraw its June 23,
to placced. the district court should de-
2977, motion for summary judgment* in
termine whether the Environmental Pro-
favor of defendants. Specifically, RITE
13. See Affidavit of Gasreu Sloan, Director of
Any facilities for sanitary sewage disposal
the Miand-Dade Water and Sewer Authority,
existing on July 1. 1971. shall provide for
tiled December 1. 198M
secondary waste treatment by January 1.
14. See 33 U.S.C. 11255(a).
1973.....
IL Section 403.086(2) provides that:
,
86-401. .
:
RITE:-RESE�IRCH UNPROVES THE ENti'IRO` ME`�T v. COSTLE 7463 I
directs the court's attention to the No- thereby needlessly expend municipal `
d "Notice of Filing min- funds for secondary treatment.
vembm' 19, 197T.
between Scylla
utes of the City Commission" in which Trappedt as it were.
the City stated that "plaintiff has stand- and Charybdis, it is not surprising that
ing to maintain this suit and defendant, the City's pleadings trace a path of party
City. praYs.this court to define the sirenian" call. In this con -
legal
alignment and realignment which make
issues involved on their legal merits," it appear as if the City were led by a
e January 5.1978, Dlotion for E.�cpediting mysterious .�
Cause requesting the same." Further- text, it seems clear that the City encour-
more, at oral argument, counsel for the aged RITE to pursue a battle which it
City of biiami Beach maintained that the believed it could not by itself win. The
City considered its interests to be allied Commission repeatedly requested RITE's
with appellants. Therefore. we choose president, Joseph Abelow. and RITE'31e-
to regard the above described pleadings gal counsel, Joseph Fleming, to address
as motions by the City to realign itself as the Commission regarding the status of
a party plaintiff. RITE's lawsuit in order to discover
appeal makes evident whether RITE could prevail where the
The word on
the confusion and frustration which the City had failed. Furthermore. lengthy
city Commission encountered after ini- council meetings ensued during which the
fly wing its application with the �mmissionem debated various strategies
government. The gravamen of the whereby the municipality could find a
wrong in this lawsuit arose from the way out of its dilemma without actually
manner in which the government re- joining RITE's suit Given these practi-
aponded to the City's application, a re- calities, it would be a distortion of the
sponse which this court believes amount- truth to consider the City •to be a Party
an abuse of poker. By reject'ng defendant, and we therefore acknowl-
ed to the application out of hand, the Environ- edge the fact that the City's interests
mental Protection Agency placed the City were fundamentally allied with the plain -
of Dfiami Beach in an impossible shua- tiff. and accordingly treat the City as a
tion--ewer suet the government in order party plaintiff upon remand.
to save municipal funds and thereby lose
federal funds,• or withdraw suit and REVERSED and gE`'IANDED. -
.. 1.6. voL V1. R 124& -
Adm. Ofrwlc , U.S. CourU_,%Vest Publishing Company, Saint Paul, bi%nn.
86-40a: - .
:.c
658 Fla. 295 SOUTHERN REPORTER, 2d SERIES
ter financial position than the husband;
and that in order to maintain his used car
business and be relieved of "unnecessary
and unjust financial hardship" he was in
immediate need of "at least $20,00C199.
which request was made "pending the final
hearing when a determination can be made
as to the final disposition of these funds".
As is often the case where temporary re-
lief is requested and granted to the wife,
the funds received pending final disposi-
tion of the petition for dissolution are gen-
erally not the subject of accounting or re-
payment. In this instance it is to be noted
that the court directed that the husband
keep full accounting of the funds to be
used primarily in the husband's business
reflecting the likelihood that in the event
the court finds for the wife such funds
would either have to be returned or taken
into consideration in the overall determina.
tion of the financial and property rights of
the pies. We find no fault with a court
order predicated upon the equality of the
marital partners. Accordingly, the judg-
ment of the trial court is affirmed.
WALDEN, J„ and MOORE, JOHN FL,
II, Associate Judge, concur.
STATE of Florida ex rel. Frank C.
GARDNER at al„ Appellants,
r.
SAILBOAT KEY, INC., at al„ Appellees.
Noe. 744 74-9.
District Court of appeal of Florida,
Third District.
Uay T. 1974.
On Rebearing June 10, 1074.
property on an undeveloped island on
ground that it constituted both a public
and private nuisance and for declaratory
judgment. The Circuit Court, Dade Coun-
ty, Grady I.. Crawford, J., dismissed com-
plaint as to the first count with leave to
amend and dismissed the complaint as to the
remaining counts with prejudice. Plaintiffs
filed an appeal and an interlocutory appeal.
The District Court of Appeal held that
complaint was not sufficient to state cause
of action for misrepresentation or for vio-
lation of the Unfair Trade Practices and
Consumer Protection Act and that the fact
that the construction of high rise residential
buildings, marinas, social clubs and night
clubs on undeveloped island was authorized
by municipal zoning ordinance did not im-
munize that use from being held to be a
"public nuisance."
Affirmed in part and reversed and re-
manded in part.
Individuals, associations and institu-
tions brought action in the name of the
..-.. .,, a -main construction and use of
I. Trade Regulation e�864
Property owners' complaint, which al-
leged that in applying for zoning for island
which would permit construction thereon
of high rise residential buildings the de-
fendant landowner was guilty of misrepre-
sentations and of deceptive trade practices,
was not sufficient to state cause of action
for misrepresentation or for violation of
the Unfair Trade Practices and Consumer
Protection Act. West's F.S.A. § 817.76 et
seq.
2. Nuisance 4=82
An action to abate a public nuisance
may be brought by citizen of the county in
the name of the state without the necessity
of prior application to the states attorney
to bring the suit and without necessity for
the citizen relator to show he has sustained
or will sustain special damages or injury
different in hind from injury to public at
large. West's F.S.A. § 60.05(1).
3. Nuisance Cm82
One who seeks to enjoin public nui-
sance and who proceeds as an individual.
86-401._
island on
::t a public
declaratory
Dade Coun-
nissed com-
:th leave to
:'nt as to the
Plaintiffs
-ory appeal.
held that
state cause
or'for vio-
actives and
Zat the fact
residential
_ and night
.s authorized
did not im-
:eld to be a
:rsed and re-
.:: t, which al-
r g for island
..ion thereon
'.:ngs the de.
of misrepre-
,de practices,
:se of action
violation of
:i Consumer
..g81776et
..ic nuisance
•he county in
.ht necessity
..t's attorney
::ecessity for
::as sustained
or injury
public at
public nut -
individual,
STATE ES REL. GARDNER v- sAILBOAT XEY, IXO- Fla. 659
Cite as, Fia.APP., 293 Sold 69
and not in the name of the state, must
ancaance with a municipal zoning ordi-
show that he has sustained or will sustainn
s ecial or peculiar injuries different in S. Nulsanee 0=65
p degree, from the injury
kind, not merely in
to the public at large. 'Vest's F.S.A. § 60:
05(1).
4. Nulsanca 4P82
Owners of property on mainland had
standing to bring action in the name of the
state to abate nuisance allegedlyNain being
zoned cre-
ated by the result of city g
an
undeveloped island to a classification
which would permit construction thereon
of high rise residential buildings which
would be accessible by a bridge connected
to a street passing through existing resi-
dential area, even though there was no
showing that the owners had sustained or
would sustain special damages or injury
different in kind from that to the public at
large. West's F.S.A- § 60.05(1).
Fact that construction of high rise
residential buildings, marinas, social clubs
and night clubs on undeveloped island was
authorized -by municipal zoning ordinance
did not immunize such use from being held
to be a "public nuisance". West's F.S-i--
§§ 60.05(1), 817.76 et seq., 823.05.
See.publicatioa Fords and Phases
for other judicial constructions and
definitions.
5. Nnisanes 4a65
. A public nuisance resulting from the
manner of use of property would be sub-
ject to abatement even though the project
sought to be restrained had been expressly
authorized by state or municipal legisla-
tion.
6. Nnisanea Oma2
• Where individual plaintiffs, associa-
tions and institutional plaintiffs failed to
show they bad sustained or would sustain
speag damages or injuries different in
kind, and not merely in degree, from inju-
ry to the public at large as result of rezort-
ing of undeveloped island, the individuals,
associations or institutional plaintiffs did
not have standing to bring suit to enjoin
the use Of the premises for the purpose of
which it was zoned on the ground that to
do so would constitute a private nuisance.
On Rehearing
Paul & Thomson and Joseph Z. Fleming, William Huggett, Miami, for appellants.
Sams, Anderson, Alper, Spencer & Post,
Sam Daniels, Horton & Perse, Miami,
John S. Lloyd,. City Atty., for appellees.
Robert L. Shevin, Atty. Gen., for amicus
curiae.
Before PEARSON, CARROLL and
HENDRY, JJ-
7. Nu W@* 3--65
A given activity may constitute a judi-
cially abatable nuisance notwithstanding its
PER CURIAM.
The plaintiffs below filed an appeal (No-
74-8) and an interlocutory appeal (No'
74-9) from an order entered on motion of
defendants to dismiss the plaintiffs' four -
count complaint for declaratory judgment,
and for supplemental injunctive relief.
In the order appealed from the court dis-
missed the complaint as to the first count
with leave to amend [pursuant to which an
amended first count later was filed], and
dismissed the complaint as to the second,
third and fourth counts with prejudice -
On appeal the plaintiffs contend the court
committed error in dismissing the com-
plaint as to the second, third and fourth
counts.
The complaint as amended was directed
to harm which it was anticipated would be-
fall the residential area
on the ir Isle
d as
a result of the city g zoned Fa
�1
I
I
660 Fla- 295 SOUTHERN REPORTER, 2d SERIES
(an undeveloped island in Biscayne Bay
lying several hundred feet off 'shore from
a residential section of Miami just north
of Coconut Grove), to a classification per-
mitting construction thereon of four high
rise residential buildings (two of forty sto-
ries and two of thirty-six stories) to house
some three thousand persons, with social
clubs, nightclubs, marina, etc., said island
being connected by a bridge accessible
from South Bayshore Drive by a street
passing through the existing residential
area.
[l] The second count alleged that in
applying for the zoning the defendant
landowner was guilty of misrepresenta-
tions, and of deceptive trade practices vio-
lative of the Florida Unfair Trade Prac-
tices and Consumer Protection Act, § 817.-
76 et seq., Fla-Stat., F.S.A. (Ch. 73-124).
We find no error in the dismissal of that
count. The alleged misrepresentations
would not give rise to an action by the
plaintiffs. The same is true'as to viola-
tions of the Consumer Protection Act, if
such occurred.
The third count presented an application
to enjoin the threatened public nuisance
alleging that the construction and use of
the property for the purpose for which it
had been so zoned would result in ' con-
struction and maintenance of a place which
would tend to annoy the community, as
provided for by §§ 60.05(1) and 823.05
Fla.StaL, F.S-A- Numerous factors and
results which would constitute such an an-
noyance to the community were alleged in
that count. In the brief of the appellees,
with reference thereto, it was stated: "In
Counts III and IV, plaintiffs allege that
even if Fair Isle is developed and operated
1. Suit will He to enjoin the commission of
threatened action of a kind that would be
subject to restraint. ?wtrouer Y. 2etrouer,
So Fla •03, 103 So. 623, 628; Lea'is e-
Peters. F1n.1963, 66 So.2d 4S0, 41r.-493.
2. A dtfferaat rule applies when one seeking
to enjoin a public nuisance proceeds as an
individual, and not in the name of the state
under If 60.05 FI&Stat., S.S.A. In that
in strict accord with all zoning and build-
ing laws as authorized by the appellee City
of Miami, it will be both a private and a
public nuisance."
The order dismissing the complaint as to
the third count did not contain a statement
of the reason or grounds therefor. The
appellees contend it was proper for two
reasons. First, appellees argue that the
plaintiffs were without standing to sue to
enjoin a public nuisance, in absence of al-
legation and showing they had sustained or
would sustain special damages `or injury
different in kind from that to the public at
large. Secondly, they argue that a con-
struction upon and use of property which
has been authorized by the zoning thereof
would not constitute a public nuisance.
[2-.4] The first of those grounds is
without merit. An action to abate a public
nuisance i may be brought by a citizen of
the county in the name of the state ( § 60.-
05(1) Fla.Stat., F.S.A.), without the neces-
sity of prior application to the state's at-
torney to bring the suit (Pompano Horse
Club v. State ex rel. Bryan, 93 FIa. 415,
111 So. 801, 52 A.L.R. 51) and without ne-
cessity for the citizen relator to show he
has sustained or will sustain special dam-
ages or injury different in kind from inju-
ry to the public at large. Pompano Horse
Club v. State ex rel. Bryan, supra; Kath-
leen Citrus Land Co. v. City of Lakeland,
124 Fla. 659, 169 So. 356; National Con-
tainer Corporation v. State ex rel. Stock-
ton, 138 Fla. 32, 189 So. 4, 122 A.L.R.
1000; Demetree v. State ex rel. Marsh,
Fla.19'56, 89 So2d 498, 502; State ex rel.
Brown v. Sussman, F1a.App.1970, 235 So.
2d 46.2
instance. for then to be standing to so pro-
ceed. it must be shorn that the complaining
Individual has � "sustained (or will swtaful
special or peculiar injuries different in kind.
not merely in degree, from the injury to the
public at large." See Bair v. Central and
• Southern Flood Con. Dist, Fla.1136`', 144
So.2d 818, 8-1 and cases cited then in foot-
note 8.
[5] 1
proceed
This is
permitter
property
by authc
tion of
nuisance
Corporal i
pra, 138 4.
1000, an
Duval C
seeking
erecting
upon a c
would cl
project
expressl3
lature, n.
of the c
Supreme
the relat
tion, but
tive Guth
oration o
be a nui.,
abatemer
Here i
authorize
manner
would be
municipa.
tain use (
effect as
for. The
ipal legisl
nance) th
rized use
nuisance.
It is
a use of
constitute
of a cftiz
be held t
because it
tion—in i
zoning. O
3. But a
' msLnnor 4
g6-401. -
• ter'
. build-
:e City
and a
as to
.:ement
The
,r two
at the
sue to
of al-
-:ined or
injury
•ablic at
a Con -
Which
.-thereof
tv
•qunds is
a public
:iR' cisea of
ti .
:he neces-
.:ate's at -
no Horse
;la. 415,
.-bout ne-
show he
.zial dam•
-om inju-
.:o Horse
; Kath-
�slceland,
• ,nal Con-
stock
.2 AIJL
3,iarsh.
-e ex reL
235 So.
to so nro-
uplaiains .
in • sus k
• to the
otial and
1=, 144
r� in toot -
STATE EX RM GARDNER v- SAILBOAT REY, INC. Fla. 661
Cite as. SIa.ADp•. 293 Sold 6W [5] However. having standing to so ever, that being the rule, the remedy c Wou
ear to be by challenge of the p p ty
proceed is not sufficient in this instance. r lit of the enactment of zoning leg -
This is so, because construction which is is legality public
permitted by the zoning and use of the nuisance and have the effectn which would oof immunizing
property for the purpose zoned, and there- it against abatement. This is not that case•
by authorized through such legislative ac-
tion of the municipality, would not be a Accordingly, we hold no error was made
nuisance per se. In National Container by the trial - court in dismissing the com-
Corporation v. State ex rel. Stockton, su- plaint as to the third count.
I'll ALR.
pra, 138 Fla. 32, 189 So. 4, ..[6] By count four, in essence, it was
1000, an action was filed by citizens of remises
Duval County, in the name of the state, sought to enjoin the use of the p
seeking to enjoin the defendants from for the purpose for which it was zoned, on
and operating a wood pulp mill, the ground that to do so would constitute a
erecting private nuisance. Dismissal thereof was
upon a certain site, on the ground that it
would constitute a public nuisance- The proper for the reason assigned above as to
project sought to be restrained had been dismissal of the third count, and on the
expressly authorized by an act of the legis- ground of want of the individual plaintiffs
lature, notwithstanding common knowledge to have standing therefor and of plaintiffs a assoin
of the offensive character thereof. The ciations and institutional p Supreme. Court recognized the standing of a position to have such standing, because
the relator -plaintiffs to maintain such ac- of failure to show -they have sustained or
tion, but held that because of the legisla- will sustain special damages or injuries
five authority for the construction and op- different in kind, and not merely in degree,
oration of the wood pulp mill, it would not from injury to the public at large. See
be a nuisance per se and not be subject to footnote No.2.
abatement as such. No reversible error having been made to
Here it Was municipal legislation which appear, the order appealed from is af-
authorized the use of the property in a firmed.
manner which the plaintiffs contended
would be a public nuisance. In theory,
municipal legislative authority for a cer-
tain use of property should have the same
effect as state legislative authority there-
for. The weight of authority gives munic-
ipal legislation (such as by a zoning ordi-
nance) the effect of immunizing the autho-
rized use fbeing hefromld to be a public
nuisance. See 166 A-WL 659. 66?-663.
It is indeed a harsh rule, by which
a use of property that otherwise would
constitute a public nuisance abatable at suit
of a citizen in the name of the state, can
be held to be immunized frome abatement
legislative no -
because it was authorized by gi
tion—in this case by a city commission by
zoning, or special zoning ordinatice.s How-
the
3.Manner of use would besubbJect to *bat IL public nuWn" rmultins ne ent.
Fia.Cws 2"495 Sa-26-30
ON REHEARING GRANTED
PER CURIAM.
By the opinion and judgment filed May
71974, this court affirmed an order dis-
missing with prejudice the second, third _
and fourth counts of the complaint.
On consideration of the appellants' peti-
tion for rehearing we granted rehearing as
to the portion of the petition which sug-
gested that our affirmance of the dismissal
of the third count of the complaint
incorrect, and that the ground upon which
our opinion based such affirmance was
contrary to and in conflict with Florida de-
cisions.
See National Container Corp- V. State ez
reL Stockton. supra (10 SA- at 17)-
ii
N VSPOiiortiori.
T%& 2d SERIES
226 gCt1'1zM d on that holding, a f
d' 'ally
Ion with We -
Having considered the matter,
er oral argument thereon, ded
fit of further 1974 is hereby t end error
opinion of DIay 7'
that the trial court he mthird count
it hold or dismissing
in striking
I!, gj Base constitute a u
a given activity may
abatable nuisance notwithstanding with a existence
its com-
ordinance.
municipal zoning exist
pliance we noted the once
In our filed opinion in other iuris-
of authority to the contrary
However, we now observe s been
compeaent. dictions. ch treatment as
of the which alleged o
ding the third count, .
Regard' t�tent of a threatened pub'
° ht abatement
that those Plaintiffs h
and so g
lit nuisance, we of the county had stand -
who were roocc� in the name of the state,
sonin6
but to so 9held that becalmunicipal d use of
elm it the con would
wouldp which it was allegednot sub -
the Pt public nuisance, it was
institute a p ent as a public nuisance per
ject to abatesn we cited and reli
se. In so holding Ccrporattoa v. State 1 x
riational Cont%ain t8, go. 4,
tive
rel. , having held thatOperation
go. aof
Ad�R 10A as for co:utructt°a ande to chat.
wood pulp Will made it immun , and we
lenge as a p wad nuisance per same force
went fans pal .0ning ordinance.
to s szttmti has called t
n the basis of su
matter in Florida decisions our
given themain opinion that a use of
olding in the Hance with a zoning ordt-
property in comp a nu -sauce per .
Hance may not be abatable as
se was not correct.
l the provision of the order
According Y• third count of
appealed from by which the reversed,
hint was for further pro -
dismissed is
the Comp anded
and the cause is rem In other respects
ceedings on that coon is denied.
the petition for rehearing
0
The otion for arin
it the uchogization for the
our attentionin the National Container
facility nod �statuL0�� but was conferred
case amen ent to 4 12
by organic taw' by Constitution of Florida
of Art. i of the 1930, which related
ap in-
ustrial planbtsrfor stated purposes'
� in
to wed pulp milts. Moreov
eluding court noted that the authority
that �
that the
therefor was snore than further,statedg
based ott 019 M law, the organic
law
N have Pro o i ° t a pulp
Vile 1ss definite tioa tit'
which is awhen Properly
public nuisanCe
to is not a 146A and operated."
It is so ordered.
, " itloans tssrt�
, -
Earl N. j41G14TC)WFR and Agnes
ttluhtower, APPeUaat%
v.
T. F. RUSS and a. W 7aytor, APpetiees.
-- . -A
con u a Elec-
In State ex Tel. Shevtn v Tamp 45,
tric Compa°y, F1a.APP61qj4, 291 So.2d
�cided recently by the se
district court
s
it was said : "But in any eue�.
of apPev that a gives aetsvtty can
is clew to us abatable nuisance. not-
stitute a 1 iall pliance with either
;n,:tsdstivenMandate or administrative rule.
District Court of Ippeal of Florida.
First District.
.fie Circuit
Ejectinent acttolu �. Bai-
Washington County, W
entered judgment for defen s R
ley, S•• I was taken. The District
and ap ea held that plaintiffs were not en-
and
APp prevail I where land surveyor em-
titled to tired that, based On le-
ployed by them adm� by plain -
gal description of land gives' trim
was unable t0 locate two acres to
tiffs, he alleging a claim, and
which Plaintiffs were resent a eomPe'
where plaintiffs did not p
tent abstract t or
showing t
than.
t, gjeetment P9
petitioner in
recoYer on strer.
not on alleged `v'
ers to the land.
Z, neotment P9
Evidence Q=266
plaintiffs �
in ejectment act
surveyor etnplOY
that, based On t
land given him
to locate two `
were alleging a
did not present
competent abstra
ments showing t
vested in them -
William F• D
Gwy" & Dante
lams.
Will"tas► S.:tli
pellees.
Appellants in'
filing an ejects
lees. The jur:
who have now :
F1414 0.1
CORAL BA4 pROp. OWN. ASS'N v- CITY OF CORAL GABLES 853
ote as. FU6,kpp•. W5 Sold 8W
returning, was a justifiable homicide. 340; Scholl v. State, 94 Fla. 1138, 115 So.
This is so because if, as indicated, the evi. 43.
dence at trial should disclose that the ac- on the evidence which was before the
cused removed himself from a position of court the condition of the car was not ma -
danger or peril, and then voluntarily drove terial, and it was error to dismiss the cause
back and opened fire on the group his ac- as a sanction for failure of the state to
tion then was that of an aggressor, and the comply with an order for its production
resultant killing would not be a justifiable for inspection.'
homicide under § 782.02(2)(b) F1a.StatF.
The order of dismissal is reversed, and
S-A- the cause is remanded to the trial court
[1] In 16 Fla.Jur., Homicide, § 57, it is
said, "The right to take life in self-defense
exists only in extreme
no other apparent pncticable way to avoid
the threatened danger * * * thus, the
taking of human life is neither justifiable
nor excusable where a fatal blow or shot is
administered after the danger of attack has
Yam' * * *"
In Linsley v. State, 88 Fla. 135, 101 So.
273, the Supreme Court said: "The caking
of human life is neither justifiable or ex-
cusable where one fires the fatal' shot or
strikes the fatal blow after danger of death
or great bodily harm to him from the de-
ceased's attack has passed-"
That principle ,was followed and applied
in State v. Coles, Fia.1956, 91 So2d 200,
and McKinney v. State, FlaApp.1972, 260
Sold 239.
for further proceedings.
It is so ordered.
11
p s rtr runTU mn�
T
CORAL BAY PROPERTY OWNERS
ASSOCIATION, Appellant,
V.
CITY OF CORAL GABLES, a municipal car'
poratlon, and GYIIIver Academy. Inc., a
Florida corporation, Appellees.
No. 74-1 127.
District Court of Appeal of Florida.
Third District
Dec. 31, 19M.
[2] Assuming therefore, although the
evidence did not so establish, that the ac-
cused was not the aggressor in the initial
shooting in which shots may have been ex-
changed between him and the persons who
were gathered outside the nightclub, he
had the means to and did retreat from the
danger by driving away from the scene, as
was his duty under the law in thattua-
So.
tion. Danford v. State, 53 Fla. 4. 43
593 ; oweus v. State, 64 Fla. 383, 60 So-
t. Compare Jobusoa V. state. 11"90971.
240 S8.2d 470. In wbieh this court reversed
a bomicids eouvictton and ordered a new trial
when despite luabilltr of the state to produce
a bullet which killed f the viedin, the the defendant had trial
court. over objection
Rehearins Denied Jan. 2S,13T5.
Action by private school against city
for declaration of the school's rights under
special use zoning ordinance which permit-
ted operation of The Cirettrivate it Court, Dade
resi-
dential property. denied County, Francis X. Knuck, JM
prop-
erty owners' association's motion
inter-
vene and the association brought an inter-
locutory appeal. The District Court of
Appeal held that where private school, in
its complaint, specifically set forth its con -
lowed the state to present the testimony of
a ballistics expert (who bad examined the
bul-
let earlier when the state had pass t
on of
it) to establish that the bullet was fired from
the defendant's Nu-
86-401' ...
troversy with property owners' association,
the school prayed for an injunction stop-
ping the proceedings begun to investigate
the association's objection and that the city
be enjoined from accepting the property
owners' interpretation of the ordinance and
the effect of the granting of the school's
prayers without joinder of the owners' as-
sociation would be to allow litigation
against the city to prevent the city from
determining the association's rights under
the ordinance, the declaration of the rights
of the school could have a direct effect
upon the rights of the association's mem-
bers and the trial court abused its discre-
tion in denying the association's motion to
intervene.
Intervention is not a matter of right
but rests within the sound judicial discre-
tion of the trial court; the trial court, in
the exercise of judicial discretion, should
be guided and controlled by established le-
gal principles to which the actions of
courts must conform. 30 West's F.S.A.
Rules of Civil Procedure, rule 1230.
Z. Declaratory Judgment 4=306
Where private school, in its complaint
for declaration of its rights under specialty
enacted city ordinance, specifically set
forth its controversy with property owners'
association, the school prayed that the city
be enjoined from accepting the property
owners' interpretation of the ordinance and
granting the school's prayers without join-
der of the owners' association would allow
litigation against the city to prevent the
city from determining the association's
rights under the ordinance, the declaration
of the rights of the school could have a di-
rect effect upon the rights of the associa-
tion's members and the trial court erred in
denying the association's motion to inter-
vene. 30 West's F.S.A. Rules of Civil
Procedure, rule 1230.
1. "Anyone chiming an intertist in pending
Utiguton may at any time be permitted to
assert his right by Intervention, but the inter-
vention shall be in subordination to, and in
Fleming & Newman, bliami, for appel-
lant.
Charles H. Spooner, City Atty., '
Hendrick, Guilford, Goldstein -1
Donald, Coral Gables, for appellees.
Before PEARSON, HAVERFIELD and
NATHAN, jj.
PER CURIAM
The question presented by this appeal is
whether the trial .court erred in denying
the appellanes motion to intervene pursu-
ant to rule 12,30, RCP,1 in appellee's suit
against the City. The appellee sought a
declaratory judgment, injunctive relief and
other relief. The appellant claimed a di-
rect and immediate interest adverse to the
appellee as plaintiff. We reverse upon a
holding that the declaration of the rights
of the appellees could have a direct effect
upon the rights of the appellanes members.
The appellant is the Coral Bay Property
Owners Association. The appellee is Gul-
liver Academy, Inc., which operates a pri-
vate school. The defendant to the suit for
declaratory judgment is the City of Coral
Gables. The record contains a stipulation
by the City agreeing to appellanes inter-
vention as a party defendant.
This case had its impetus in a letter sent
by Coral Bay to the City requesting an ap-
pearance before the City Commission.
The letter stated in part:
"Our objection pertains to the viola-
tion of the agreement between the City
of Coral Gables and Gulliver Academy
recognition of, the propriety of the main Pro-
ceedings, unless otherwise ordered by the
court in its discretion."
86-401 t
1
1
:d
.. is
,uit
and
di -
:he
as
:ct
.r3.
rty
•ri-
ior
ral
:r-
t
CORAL BAY PROP. OWN. ASS'N V. CITY OF CORAL GABLES Fla. 855
Cite as. FIa.APP., 303 Sa.2d ess
when a special use zoning was granted . [1] We recognize the rule vesting dis-
to permit a grade school in our residen- cretion in the trial court; nevertheless, in
tial area. Our city file discloses testimo- the exercise of judicial discretion, the trial
ny by Gulliver representatives that the court should be guided and controlled by
school would service three -year -olds established legal principles to which the ac-
through the 6th grade with no more than tion of courts must conform. Lewis v.
30C students. Jennings, F1a.1953, 64 So.2d 275 ; Eugene
Wuesthoff ��femorial Hospital Association
"Gulliver now teaches classes through v. Sperano, Fla.App.1960, 118 Sold 49.
the.9th grade with approximately 1,000 The legal principles governing the decision
students enrolled. No permission was in this case have been enunciated by the
granted by the City of Coral Gables' duly authorized Planning & Zoning Supreme Court of Florida in Dforgareidge
v. Howey, 75 Fla. 234, 78 So. 14 (1918) ;
Board for this departure." bliracle House Corporation v. Haige, Fla.
In response to this letter from Coral
Bay, the City decided to consider the com-
plaint lodged by appellant. In addition, the
City decided to refer to its Planning Board
the task of hearing the controversy. Hav-
ing had notice of the proposed procedure,
Gulliver filed its complaint for a declarato-
ry judgment, injunction and other relief.
Coral Bay sought to intervene as a party
"claiming an interest in pending litigation
. . . but, . . . in subordination
to, and in recognition of, the propriety of
the main proceeding . . ." Appellant's
motion to intervene was denied without
findings and this appeal followed.
Appellee points out that intervention is
not a "matter of right" but rests within the
sound judicial discretion of the trial court.
See Switow v. Sher, 136 Fla. 284, 186 So.
519 (1939); Wogisch v. Tiger, F1a.App.
1966, 193 Sold 187.
In addition, appellee urges that this rec-
ord affirmatively shows that Coral Bay
will neither gain nor lose by the direct le-
gal operation and effect of a judgment in
the case.
2. .2& In 1973. plaintiff find an unfortuante
series of 'run-las' with a neighbor to the
s.•liool, who is a member of an nssocintion
known as the Coral Bay Property Owner„
Association, wiifch coiru identally used to have
their meeting at the Gulliver Academy. The
'run-ins' involved charges of vandalism and
other improprieties by children of tills neigh-
boring owner, at the Gulliver Academy.
,J. In an effort to find some method to
retaliate for plaintiff's having called the police
M&Cwn 304-305 U26-78
1957, 96 So2d 417.
[2] Applying the principles expressed
to the instant case, it seems to us apparent
that the appellant, Coral Bay, has an inter-
est in the matter in litigation, i, e., the dec-
laration of appellee's rights under specially
enacted Ordiaance No. 1546 of the City of
Coral Gables to the use of residential prop-
erty for private school purposes. We
think that it is significant that Gulliver in
its complaint has specifically set forth its
controversy with the appellant, Coral Bay.2
The complaint seeks broad relief. Not
only does it pray for an injunction stop-
ping the proceedings begun to investigate
appellant's objection but it prays that the
City be enjoined from "accepting the inter-
pretation of grade school . . - as
being grades one through six
and be required to accept appellee's inter-
pretation that "grade school" as used in
the ordinance means that "plaintiff is enti-
tled to operate a grade school, through the
full ambit of grades nursery through
twelve, with no numerical enrollment re-
striction."
and reported three children to the outhorl-
ties. this neighlwring owner caused the Coral
Bay Prol*rty Owners AaRM•iation to file a
compinint with the Mayor of the defendant.
CITE', claiming that plaintiff was allegedly
operating In violation of its toning permit.
A coley of the January 1& 1974 letter from
Ed Bnlik, President of the Coral Bay Prop-
erty Owners Association. to Coral Gables
Mayor Robert KniZht is attached and made a
pnrt hereof and marled Exhibit
N
86-401 _
305 SOUTHERN REPORTER, 2d SERIES
The effect of the granting of appellees
prayers without appellanes joinder will be
to allow litigation against a government
unit to prevent that governmental unit
from determining appellanes rights under
an ordinance. See Sarasota County v.
Stanton Investment Company of Missouri,
F1a.App-1973, 283 Sold 152. Accordingly,
the order denying appellanesmotion to in-
tervene is reversed and the cause remanded
for further proceedings in accord with the
views herein expressed.
Reversed and remanded.
r
o �mr�«N•mn�
T
Bernard H. HOROWIT2:, Appellant,
V.
James M. RASKIN, Appellee.
No. 74-461L
District Court of Appeal of Florid:►,
Third District.
Dec- 81,1974.
Rehearing Denied Jan. 28, 1075.
Action for accounting and for dam-
ages for breach of agreements relating to
sale of stock of two corporations. The
Circuit Court, Dade County, Harold G.
Featherstone, J» entered judgment for
plaintiffs and defendant appealed. The
District Court of Appeal held that evidence
supported finding that plaintiff was enti-
tled to one-half of one percent incentive
commission on net land sales during eight -
month period produced by Florida corpo-
ration, and that defendant, or corporation
which was alter ego of defendant, received
$70,000 paid for sale of stock of Nassau
corporation in which plaintiff had one -
fifth interest.
Af firmed.
I. Corporations C 269(3)
Evidence in action for accounting and
damages supported finding that under
agreement entered into with principal
stockholder when stockholder was negotiat-
ing -sale of corporation plaintiff was en-
titled to recover from stockholder one-half
of one percent incentive commission for
net land sales during eight -month period
produced by Florida corporation which had
employed plaintiff in an executive capacity.
2. Corporations 4=1Is
Where defendant, who controlled Nas-
sau corporation, agreed to pay plaintiff
one -fifth of proceeds of sale of such cor-
poration in exchange for delivery of plain-
tiff's stock to defendant and where defend-
ant, or another corporation which was al-
ter ego of defendant, received $70,000
from sale of such Nassau corporation,
plaintiff was entitled to recover $14.000
from defendant.
3. Appeal and Error C:719(1, 5)
Where no error was assigned as to ac-
counting ordered on plaintiffs motion and
to failure to admit certain documentary ev-
idence, such matters could not be reviewed
on appeal.
Albert George Siegel, Miami Beach, for
appellant.
Mark Silverstein, Miami Beach, for ap-
pellee.
Before BARKDULL, C. J., NATHAN.
]., and CHARLES CARROLL (Ret.). As-
sociate Judge.
PER CURIAlai.
By this appeal, we are called upon to
review the correctness of the final judg-
I t i;L.'0003 ENV(RONiNENTAL LAW REPORTER
In re, icxtn misiml Landfill Site
(1=nvitonm4m.tal Protection Agency, Final Determination of the
Administrator, Jan. 19,1981)
In an unprecedented ruling under 1404(c) of the Federal Wa-
ter Pollution Control Act, the Administrator of the Environmen.
tal Protection Agency (EPA) restricts the use of a North Miami
landfill to minimize contamination of adjacent wetlands and Bis-
cayne Day. In 1976 the Corps of Engineers had issued a §404 per-
mit to fill 291 acres, including 103 acres of wetlands, for construc-
tion of two Golf courses. Because of contamination resulting from
solid waste dismsal on the site. including the generation of toxic
'.eachates. EPA restricts further activity to the addition of clean
fill in areas where waste has already been deposited.
Counsel for Petitioners Florida Audubon Soc'y and Tropical
Audubon Soc'Y. Inc.
Joseph Z. Fleininge
Fleming & Neuman
620 Tngraham Bldg., 25 SE 2d Ave., Miami FL 33131
(305) 373-0791
Additional Documents Available from F.LR
A. Petitioner's Response to the Proposed Determination of
EPAH.Petth Appendixes i7
tioner's Supplemental Responses (46 pp. $6.25der No. 7ELK
Order No. A-1018).
Cvstle, Administrator:
1. Introduction
Under 1404(c) of the Clean Water Act, the Administrator of
the Environmental Protection Agency (EPA) is authorized to pro-
hibit the specification (including the withdrawal of specification)
of any defined area as a disposal site, and he is authorized to deny
or restrict the use of any defined area for specification (including
the withdrawal of speaficadou) as a disposal site, whenever he
determines, after notice and opportunity for public hearings, that
the discharge of such materials into such area will have an unac•
ceptable adverse effect on municipal water supplies, shellfish beds
and fishery areas (including spawning and breeding areas),
wildlife, or recreational areas. Before making such a determina-
tion, the Administrator shall consult with the Chief of Engineers.
the landowner, and the applicant, if any.
After consideration of the record in this case, including
public comments and the hearing record and comments from the
Office of the Chief of Engineers, and after consultations' with a
duly authorized representative of the City of North Miami, I have
determined that the discharge of certain dredged and fill materials
into the North Miami landfill will have an unacceptable adverse
effect on shellfish and fishery areas. wildlife, and recreational
areas. Therefore, I am hereby exercising my authority to restrict
the use of the area in question for specification (including the
withdrawal of specification) as a disposal site. as described more
fully below. My findings and reasons are also set out below.
n. Background and History
On March 15. 1976. the Jacksonville District Corps of
Engineers (COE). issued a joint i1404110 permit (75B-0869) to
the City of North Miami to fill 291 acres for a public recreational
facility consisting of two golf courses, tennis courts, and a
clubhouse adjacent to Biscayne Bay. Approximately 1.540,000
cubic yards of rill material were to be used to achieve sufficient
elevation for landscaping the golf courses and to prevent damage
caused by flood tides. Only 103 acres of the area to be filled were
wetlands, and there were to be 8.2 acres of mangroves preserved
tine 3 shallow ponds with tidal connections created within the
overall fill area. A large area of mangroves also exists between the
fill site and Biscayne Bay. Neither the COE public notice nor the
COE permit referenced the use of solid waste (garbage) as the rill
iaterial. EPA Region IV did not oppose the project.
On March 25, 1977, the COE advertised permit application
77B4376 which was a modification of permit 75B-0369. The pro-
posed permit modifications involve excavating the three tidal
ponds to minus 35 feet mean sea level (MSL) for borrow material
t. m any request, the Director of EPA's Office of Environmental Re%iew acted
u my representative at this meeting.
8-81
instead of to minus 3 feet as originally proposed. The 8.2 acre
mangrove preserve to have been contained within the golf course
area under permit 75B-0869 would also be converted into a bor-
row area. Public notice 77B.0376 also provided notification to the
public that the 291 acre project area would be operated as a
sanitary landfill, utilizing solid waste (garbage) as fill material
(i.e., several more million cubic yards of solid waste would be
deposited in waters of the United States).
Since issuance of COE Public Notice 77B-0376, EPA has
maintained its opposition to the use of wetlands at this site for
solid waste disposal. Because the Region was unable to resolve
differences of opinion with the Jacksonville District and South
Atlantic Division Engineers, the application was elevated to the
Deputy Administrator of EPA and the Assistant Secretary of the
Army (Civil Works) under 1404(q) of the Clean Water Act. (Dur-
ing this process, the discharge of garbage was halted on an interim
basis.) When these discussions failed to resolve the matter. the
EPA Regional Administrator for Region IV, Rebecca Hanmer,
initiated action under 1404(c) of the Clean Water Act. Following
due public notices, she held a public hearing on the matter in the
City of North Miami Beach, Florida. on October 2, 1980. Subse-
quently on November 28. 1980, she forwarded her recommended
determination and the administrative record for my review and
final determination in accordance with the 1404(c) regulations (40
CFR §321).
Ms. Hanmer's recommended determination would have
restricted the use for specification of the area covered by permit
75B-0869 as a disposal site and thereby prohibited any further per-
manent discharges of fill material into the area except as specified
in the determination. Her recommendation included several
mitigative measures. She also recommended the outright denial of
the use for specification of the 12 acres at issue in proposed permit
77B-0376, part of the same site covered by COE permit 75B-0869.
Her determination was based upon existing and anticipated water
quality impacts that pose the risk of unacceptable adverse effects
to fishery areas, wildlife and recreation areas of Biscayne Bay, ad.
jacent wetlands and lakes within the site.
On December 2, 1980 and December 3, 1980, respectively,
my office received the administrative record and Ms. Hanmer's
recommended determination. After these materials were review-
ed, I sent letters to the Chief of Engineers. Lieutenant General
Joseph K. Bratton, and the Mayor of the City of North Miami.
Mr. Howard Neu, on December 29, 1980. initiating consultation
in accordance with the §404(c) regulations. They then had 15
calendar days to notify me of any intent to take corrective action
that would prevent, to my satisfaction, any unacceptable adverse
effects. My staff met with Mayor Neu on January 12, 1981, as
part of the consultation. The Chief of Engineers, acting through
his Director of Civil Works, submitted comments in writing on
the same day. I subsequently reviewed the information they sub-
mitted. along with the record. and determined that 1 should
restrict the site for use as a disposal site as dcscribed below in this
final determination.
Ill. Unacceptable Adverse Effects
A. Generation of Leachate
At present. approximately 60 acres of the wetland and most
of the upland have been filled with solid waste. There is only a 6"
cover of clean fill on approximately half of this solid waste.
Several lakes have been excavated through the solid waste and in-
to the aquifer to depths up to minus 35 feet MSL. The record in.
dicates that placement of solid waste on the site has resulted and
will result in significant leaching into these lakes, the adjacent
wetlands. the water table which connects with Biscayne Bay. and
ultimately the Bay itself.
Personnel trom the Dade County Department of En.
vironmental Resources Management (DERM) inspected the
northwest lake on January 15. 19S0, and observed rive ►eachate
streams entering the lake. DERM personnel returned to the site on
January 17, 1980. and took water quality samples. They found
that the Leachate entering the northwest lake had an ammonia
concentration in excess of 500 ppm, which is evidence of gross
contamination. Additional data collected on February 22, 19S0.
by Post, Buckley. Schuh and Jerrigan. Inc.. a consulting firm
employed by the applicant. show that three lakes on the site had
W__
8 -40t1
!-81 ADMINISTRATIVE MATERIALS
surface water with ammonia concentrations ranging from 5-20
ppm. Subsequently. EPA and DERM took additional samples of
these lakes and independently verified the high levels of ammonia.
EPA has also found thirty-one man-made organic com-
pounds in one leachate sample associated with one of the lakes.
Twenty of these compounds were identified as belonging to
various families of chemicals often associated with household
wastes such as solvents, plasticizers, and lubricating fluids. Some
other compounds can be linked to pharmaceutical wastes. Five of
the organic compounds identified were priority pollutants which
are known or strongly suspected of having toxic effects on man
and other animals. These compounds have so far been found at
low concentrations. However, given the sporadic and unpredict-
able nature of the distribution of chemicals in solid waste land-
fills, there is no assurance that concentrations will remain at this
low level, particularly if dumping resumes.
The leachate problem is not confined to the lakes. Data col.
lected by DERM on several occasions shows that the surface
waters of the mangrove preserve just east of the solid waste
disposal site (e.g., just outside the existing dike) have ammonia
levels much higher than those in samples taken from Biscayne Bay
or from surface waters of a mangrove community located away
from the site at issue. Independent sampling and analysis by EPA
scientists have further confirmed that concentrations of total am-
monia as high as 9 ppm are now present in the mangrove preserve.
This indicates that the shallow groundwater is contaminated east
of the landfill and will be a continuing conduit for ammonia
generated by the garbage. It also indicates that the dike does not
prevent the passage of leachate.
Leachate has not yet been detected in the Bay itself.
However, leachate from an adjacent site can take many years to
travel to a water body, depending upon site conditions, precipita-
tion and man's Interference. In the present case, measurements of
leachate in the lakes and wetland areas have shown increasing
levels over time. For example, as of 1977, ERA had not been able
to detect any leachate, whereas 1980 samples showed levels as high
as 500 ppm in particular streams (see (11 ELR 300021; supra).
EPA models, developed to predict the production of organic acid
leachate from solid waste disposal facilities. predict that the waste
already disposed of at this site will produce large quantities of
leachate for many years. Therefore, it is probable that the leach -
ate will ultimately reach the Bay itself. The continued discharge of
garbage will obviously serve to exacerbate this situation.
While the applicant's consultant, Post. Buckley, Schuh and
Jerrigan, Inc. (PBS&J), concluded that the organic substrate at
the site would serve as an attenuation barrier between the landfill
and Biscayne Bay, I am not persuaded that it will prevent unac-
ceptable adverse effects in the Bay. Other evidence supported the
extreme traasmissivity of the Miami colite layer. Also, observa-
tions of others that leachate has moved from the actual landfill
area to the mangrove preserve outside the dike indicates that in
fact there Is not a sufficiently effective attenuation mechanism
present, whatever laboratory tests of soil layers might suggest in
theory. Also. other experts commented that PBS&Fs methods of
sample handling and errors in calculation invalidated Its conclu-
sions. The excavation of deep lakes clearly undercuts the attenua-
tion potential of the upper, relatively Impervious soil layers.
Therefore, based on the record. I conclude that leachate generated
by garbage at the site will continue to be produced, that it is likely
to reach the Bay. and that the placement of additional garbage
will increase its concentration and the duration of its production.
B. Toxicity
The record establishes that the observed levels of ammonia
are significant. Dr. Joan A. Browder, National Marine Fisheries
Service, testified at the public hearing about the toxicity of am-
monia to freshwater and saltwater fishes and invertebrates. Am-
monia, which is acutely toxic to various aquatic species at low
concentrations, is found in the aquatic environment in two forms,
ionized (NH +.) and un-ionized (NH,). while the un-ionized form
is generally responsible for ammonia toxicity to aquatic
organisms. there is considerable evidence that NH +, also con-
tributes significantly to the detrimental effects of ammonia on
11 ELR 30003
aquatic organisms in some environments. Both forms are present
at this site.
Concentrations of 2-20 ppm total ammonia, as found in the
lakes, result in concentrations of un-ionized ammonia that exceed
EPA's water quality criteria. In fact, in one experiment cited in
EPA's Quality Criteria for Water, total ammonia concentrations
of 8 ppm produced 50% mortality in the test animals within 24
hours. As discussed above, we can expect the continued genera.
tion of leachate at this site for some time from the garbage already
on the site. It is logical to expect that the addition of new garbage
at the site will result in increased concentrations of ammonia for
even longer periods of time.
The record also indicates that low concentrations of oxygen.
(which are commonly found in surface waters of mangrove
swamps such as those present here and in stressed estuaries) can
greatly increase the susceptability of aquatic species to ammonia
toxicity. In addition, the breakdown of ammonia into nitrites and
then into nitrates may result in eutrophication, since estuaries are
known to be nitrogen limited. Eutrophication is, of course, a
classic sign of poor water quality.
The Corps of Engineers questioned the harmfulness of am-
monia in light of my recent decision not to add ammonia to the
list of toxic pollutants under §307 of the Clean Water Act. The
Corps has misinterpreted the cited Federal Register notice. EPA
did not rind that ammonia is "not detrimental to warm water
fish" but rather that it "is not normally present in ambient waters
at concentrations toxic to warm water fish species." (emphasis
added.) Also, the notice expressly states that the full sentence
which the Corps quotes is merely a summary of some of the
comments received by EPA, that the Agency does not necessarily
agree with it, and that it is not to be considered an Agency
position.'
The evidence in'this case shows thsf: iie ammonia levels at
this site are and are likely to continue to be i;.r higher than those
normally found in ambient water, and that the levels at the site are
likely to have adverse effects on the area, especially the wetlands.
as fish and wildlife habitat. Furthermore, although ammonia is
generally non -persistent, the supply will be steadily replenished
here if garbage dumping continues. (If this were a single, one-time
release of ammonia, non -persistence would be more significant.)
C. Resources At Risk
North Biscayne Bayles an important recreational fishing area.
It also supports commercial fisheries for bait shrimp and bait fish.
Portions of the Bay, including the mangrove wetlands. serve as
essential nursery grounds for marine fish and invertebrates which
play an important role in the food web which supports such
fisheries. The Bay and its mangroves also serve as a major feeding
area for numerous colonial nesting birds and other wildlife. The
wetlands on the site are used for recreational bird watching. Many
of these species depend for food upon the small fish and crusta-
ceans found in the Bay and Its mangroves. Two endangered
species (the Eastern brown pelican and the West Indian manatee)
both use this area of Biscayne Bay for feeding purposes. The
pelican feeds primarily on menhaden. a forage fish dependent
upon intertidal mangrove habitat in its early life stages. The
manatee feeds almost exclusively on seagrasses found in Biscayne
Bay which could be adversely affected if the Bay's water quality is
degraded. These resources of the Bay will be adversely affected by
leachate contamination of the mangrove wetlands on the site as
well as by contamination of the Bay itself. Finally, the lakes were
designed as part of a recreational complex. Their contamination
will adversely affect recreation.
In sum; I conclude, based on the total evidence of present
conditions and the predictions of future development and move.
ment of leachate, that the use of the North Miami landfill site for
the placement of garbage will have unacceptable adverse effects
on shellfish and fisheries areas, wildlife, and recreational areas.
2. A conclusion not to list a pollutant as a toxic pollutant under 1307 does not
necessarily mean that the substance does not have toxic properties. or that it can-
not cause unacceptable adverse effects. but only that its properties or source do
not make it necessary to impose those additional regulatory requiremcau appli-
cable to the toxic pollutants category. Ammonia, for example. Coma largely
from POTW's and agricultural runoff. which would be unaffected by its listing.
as- 401' .
ENVIRONMENTAL LAW REPORTER
11 k1.R 3000-t - - '-
♦ -
• IVAr Use Of the r'llaml 1
ai tr gpeci fiq a1 on Asa Disposal Site ill
er!tl Authority
S ,: * jtt 4041c1 authorizes several degrees of limitation on dis.
cnarse of dredged or till material at a disposal site. %v here the
fact-. warrant it, I may Prohibit all future discharges of all dredged
or fill material at a site, whether or not the site has previously been
soecified in a 404 permit• if there is already a permit, my action
would be a withdrawai of specification;" if no permit has been
issued, my action would be a "prohibition of specification." On
the other hand, where some materials will have significantly less
damagingeffects than others, or where limiting discharges to par.
ticular places or to a particular manner will lessen the likelihood
of unacceptable adverse effects. I may simply "restrict," or con.
dition, the «se of the site for specification. Where an area has pre.
viously been specified in a 404 permit, I may further restrict the
t:s: of the area by imposing additional conditions on dischargato
prevent unacceptable adverse effects from use of the site, that is,
by "withdrawing a use for specification."
Of course, an action withdrawing specification or withdraw.
ing a use for specification does not retroactively render unlawful
prior discharges In compliance with a validly issued §404 permit.
Conversely, my decision not to prohibit certain discharges would
not legitimize any discharge which occurred previously without
(or in violation On a permit. Similarly, any future discharges at
the site which are not hereby isprohibitsued by th Corps before they mamust still fall within y
terms of a valid 540� permit
take place.
In the present situation, after consideration of the record and
the Corps' submission and consultation with the Mayor, who rep-
resents the landowner and the applicant, I have concluded that the
imposition of restrictions would be more appropriate than a total
prohibition against discharges.
B. Restrictions
In order to prevent additional unacceptable adverse effects to
fishery areas, wildlife and recreation areas of Biscayne Bay, adja-
cent wetlands and lakes within the site, I conclude that use of the
site, as a disposal site should be restricted as follows:
1. That no additional solid waste (including garbage) shall be
deposited in the areas covered by permit 75B-0869 and permit ap.
plication 77B-0376 that arc waters of the United States.
2. That clean fill may be deposited over the entire area al-
ready filed with solid waste. This material may be obtained from
offsite upland sources of clean till or by excavating up to 19 acres
of shallow lakes (l.e., less than minus 6 feet MSL) onsite in wet-
land areas free of solid waste or other contamination immediately
north of the mangrove preserve adjacent to the site.
3. That no fill of any kind shall be deposited in the previously
unfilled waters of the United States at the site except as provided
in Paragraphs 4-7 below.
4. That if necessary for temporary access roadways to the
lake sites mentioned in Paragraph 2 above, clean fill may be de-
posited in the wetland area immediately north of the mangrove
preserve in order to excavate and transport clean fill for covering
the existing solid wastes.
5. That clean fill for a dike may be deposited around the pe-
riphery of the eastern edge of the existing disposal site to contain
any surface leachate flows that could occur in the future.
6. That chart fill from the existing dike may be deposited. to
the extent necessary to restore the original elevation, in the ditch
from which such material was excavated.
7. That clean fill may be deposited as necessary for the place-
ment of an additional culvert. as described in permit 75B-0869, or
fnr the substitution of a bridge for the culvert.
However, specification of the site for deposition of clean rill
under Paragraphs 4-7 above is subject to the following condi-
tions:
a. That any lakes to be excavated under Paragraph 2 shall be
interconnected with each other and with existing channels to Bis-
cayne Day.
b. That the clean fill for any temporary roads constructed in
a. Site means that portion of the North Miami landfill which is "waters of the
t.*-nitrd States."
8-91
wetlands to excavate and transport clean fill shall be culverted in
accordance with best engineering practice; that such fill shall be
removed once the excavation and exoortation is complete; and
that the wetland surface shall be restored as near as practicable to
its pre -filling elevations.
c. That no fill shall be obtained through the conversion of the
8.2 acre mangrove preserve required under permit 75B-0869 to a
borrow area.
d. That no fill shall be obtained through the enlargement of
the three shallow tidal ponds authorized under permit 7513-0869 to
deeper or nontidal borrow areas.
C. Reasons for Restrictions
As described in IV above, l have decided to restrict all future
discharges to clean Fill. The record demonstrates that the place-
ment of solid waste creates a serious leachate problem due to the
particular geological and hydrological characteristics of the site.
Any future placement of solid waste in the waters of the United
States will exacerbate this problem. (Placement of such materials
in the upland portions of the tract is also undesirable, in light of
the deep lakes which have been cut there, but the jurisdiction of
the Act, and hence my 404(c) action, does not extend to the use of
areas outside the waters of the United States.) The discharge of
clean rill will not present this problem of contamination.
Second, 1 am restricting any further filling with any kind of
material in the as -yet unfilled waters of the United States on the
tract, with a fevv specific exceptions. These as -yet unfilled areas
consist for the most part of mangrove -dominated wetlands.
While, initially, EPA had no objection to the issuance of a permit
for the filling of this area with clean fill, the changed circum-
stances attributable to the subsequent use of solid waste make the
cumulative effect of filling this approximately 60 acre wetland
more significant. Prohibiting filling of these wetlands will help at-
tenuate the stresses which have already been suffered by the fish
and wildlife of the area and which will continue to occur as a re-
sult of the garbage now in place. Biscayne Bay, including the proj-
ect area, provides a valuable estuarine area, which, while de-
graded from its natural character, still supports important fish
and wildlife habitat. The bay, including its northern portion
where the North Miami landfill is located, is making a substantial
recovery from man's earlier abuses. particularly since the direct
discharges of raw sewage ceased in 1956. Filling a significant por-
tion of the unfilled wetland on the tract, coupled with the prob-
lems emanating from the garbage. will have a deleterious effect on
the recovery of the aquatic resource represented by the Bay.
At the same time. i have concluded that there is no need to
extend this restriction on the discharge of clean fill to those areas
which have already been filled. First, because those areas have al-
ready been filled, they are no longer functioning as wetlands. Sec-
ond, as noted above. clean fill will not cause the leachate prob-
lems presented by solid waste. Third, the placement of such a cap-
ping will be beneficial because it will lessen erosion of the solid
waste and divert some rainwater. Finally, placement of such clean
fill was a condition of the State solid waste permit. No environ-
mental purpose would be served by preventing compliance with
the State's remedial condition.
The Regional Administrator's recommended determination
would have required the placement of a specific depth of material.
I have not adopted that requirement, first because'the nature of
my action is not so much to prescribe actions which must be taken
as to prescribe conditions under which they may be done. and sec-
ond because I see no need to limit the level of this clean fill to a
maximum depth to prevent unacceptable adverse effects on fish-
ery, wildlife, or recreational areas.
However, 1 have determined that some restrictions on the
source of the clean fill are appropriate. Thus, I have decided that.
if the owner elects to use clean rill dredged from the site. the
dredged lakes should not be deeper than minus 6 MSL or cover
more than 19 acres total. This depth limitation should ensure that
there will be no additional cuts Into, or dangerously close to, the
relatively pervious soil layers. As discussed above. one of the fac-
tors which makes the effect of dumping garbaq: so serious is the
existence of the deep takes which have already been dredged. Any
filling made possible by the creation of more such lakes will com-
pound th w unacceptable adverse effects. This depth limitation
a,
86--401
ADMINISTRATIVE I LRIALS
will also incidentally result in a more desirable wildlife habitat
(compared to a deep lake). The limitation on the horizontal size of
the lakes is related to the restriction on filling wetlands; a large
portion of the remaining wetlands should remain as wetlands. ra-
ther than open water, to alleviate the stresses on fish and wildlife.
(v.1liile open water clearly provides better habitat for them than
filled areas would, it does not perform all the functions of the
mangrove wetland.) I have selected 19 acres as the cut-off because
it will ensure a balanced habitat for fish and wildlife and also -al-
low for recreational activities such as fishing. boating. and nature
studies. (I note in passing that the ability to dredge these lakes
may incidentally allow the owner to reduce the cost of complying
with the state requirement for a cover of clean fill.)
Although, as explained above, in general there should be no
more filling in the unfilled areas, I have determined that certain
limited fills may take place without unacceptable adverse'effect.
The beneficial effects of these fills should outweigh the small loss
of wetlands involved. For example, if necessary for access to
dredge the shallow lakes for fill, clean fill may be deposited for
temporary roadways. if culverted according to best engineering
judgment, if such fill is removed when dredging is complete, and
if the area is restored as close as practicable to its original con-
tours. So conditioned, such roadways will not create any perma-
nent disruption of water circulation or biological productivity.
and they will facilitate the capping of the solid waste with clean
fill. Therefore, on balance this appears to be an appropriate ex.
ception to the general prohibition against discharges in the unfilled
wetlands on the site.
Similarly, I have determined that the net effect of placement
of fill In the form of a dike around the periphery of the existing
disposal area (that is, the area which has already been filled)
would not have unacceptable adverse effects, but would rather be
beneficial because of its potential for retaining surface runoff. If
the filled area is used as a golf course, we can expect runoff con.
taminated with fertilizers and pesticides, wholly apart from any
leachate from the garbage. The data suggests that the existing
dike. while not totally effective, does slow down the passage of
leachate. Consequently. although a new peripheral dike would re-
sult in the filling of a small amount of wetland, its net conse-
quences for the aquatic system would not be unacceptable. Hence,
my action does not prohibit the construction of such a dike with
clean fill.
Additionally. fill material may be placed on the site as ncces-
sary for the installation of an additional culvert as originally con-
templated in permit 7SB4869 or a bridge. The beneficial effects
on the environment of such a structure outweigh the small loss of
wetlands which might be involved.
11 ELR t0005
The above allowance of discharge of clean fill in previously
unfilled areas is subject to the following conditions to ensure that
such filling activities will not have unacceptable adverse effects.
First, to ensure proper flushing. any lakes to be excavated shall be
interconnected with one another and with Biscayne Bay. Second.
as noted above. any temporary roads for dredging access must be
removed when the dredging is completed and the bottom contours
restored to their original elevation. This condition will ensure that
there will not be any permanent disruption in water circulation.
The movement of water is particularly important to the mainte.
nance of mangrove wetland productivity and for water quality.
Finally, none of the fill material shall be obtained through
the conversion of the 8.2 acre mangrove preserve (see permit 75B.
0869) to a borrow area or through the enlargement of the three
tidal ponds (see permit 75B-0869) into nontidal borrow areas.
Unless this condition is included, future filling will result in exa.
cerbation of the stresses already suffered by the fish and wildlife
of the area as a result of the garbage. For example, dredging the
ponds to minus 35 feet NISL. as has been proposed, as opposed to
minus 3 feet MSL, as originally permitted. would penetrate the
extremely pervious Miami oolite and allow additional access of
undesirable leachate to the groundwater. Similar effects would
occur if the 9.2 acre mangrove area were used as a borrow site. On
the other hand, adherence to this condition will ensure the desire -
able wildlife habitat contemplated under permit 7513-0869 as miti-
gation for filling which has been permitted.
This action of mine includes restrictions on areas specified by
an existing permit. While ideally, I would prefer to use 404(c) be-
fore a permit has been issued (see preamble to the 404(c) regula-
tions. October 9. 1979). 1 have the authority to, and it is some-
times necessary to, act after issuance in order to carry out my re-
sponsibilities under the Clean Water Act. This is such a case.
First, at the time that permit 7513-0869 was issued, EPA did not
know or have reason to believe that solid waste would be used for
fill material. Second, our concerns about leachate were not imme-
diately verified by test data. Under the record as presently devel-
oped, however, the exercise of my ¢404(c) authority is appropriate
to prevent unacceptable adverse effects to shellfish and fishery
areas, wildlife and recreational areas.
As noted above, the focus of this action is prospective. Thus.
my restrictions do not completely remedy problems caused by past
discharges of solid waste or by failure to comply with previous
permit conditions. However, other remedies, such as appropriate
Federal and State enforcement actions or permit modifications
may complement my 404(c) action to fully clean tip and protect
this area. I have endeavored to describe the restrictions and condi-
tions in this determination so as not to interfere with appropriate
remedial steps.
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