Petition for Writ of Certiorari — Moorman v. Florida Department of Community Affairs
Supreme Court brief1996
Ask Donna
What actually matters in this document.
Text
Supreme Court, U.S.
FILBD
YU 952 035 mar 19 19%
IN THE OFFICE OF THE CLERK
Supreme Court of the United States
OCTOBER TERM, 1996
No.
Cae ee ee ee
CHARLES MOORMAN, KATHLEEN MOORMAN and
YOUR LOCAL FENCE, INC.,
Petitioner,
DEPARTMENT OF COMMUNITY AFFAIRS,
Respondent.
PETITION FOR WRIT OF CERTIORARI
THEODORE W. HERZOG, ESQUIRE
209 DUVAL STREET
KEY WEST, FLORIDA 33040
Attorney for Petitioner
Appellate Printing Services * 2 South 6th Street * Richmond, VA 23219 « (800) 642-7789
QUESTIONS PRESENTED
i. Whether the Florida Suprsme Court
correctly ds» termined that land development
regulations of one of its counties banning
all fences in an Area of Critical County
Concern was constitutional under State and
Federal due process requirements as being
narrowly tailored to achieve legitimate
state objectives in protecting Key Deer in
light of testimony at Trial by the expert
witness of an agency of the State of
Florida (Department of Community Affairs)
that some fences would be beneficial to
Key Deer and in the face of evidence that
without te#nces children's lives were
endangered on their own property.
2. Whether the due process clauses of
the Fifth and Fourteenth Amendments of the
United States Constitution require that a
County Land Development Regulation banning
all fences in an area of critical county
1
| |
concern within the State of Florida was
facially unconstitutional as not bearing a
reasonable and substantial relation to the
purpose sought to be attained.
3. Whether an open ended moratorium
extending for a period of years created by
enactment of a Land Development Regulation
by a County located within the State of
Florida prohibiting fences for an
indeterminate period of time is
unconstitutional based upon the due
process clauses of the Fifth and
Fourteenth Amendments of the United States
Constitution.
LIST OF PARTIES TO THE PROCEEDINGS BEFORE
THE STAT RID PREM RT
Le Charles Moorman
(Theodore W. Herzog, Attorney)
Route 3, Box 439
Big Pine Key, Florida 33043
2. Kathleen Moorman
(Theodore W. Herzog, Attorney)
Route 3, Box 439
Big Pine Key, Florida 33043
3. Your Local Fence, Inc.
(Theodore W. Herzog, Attorney)
Industrial Road
Big Pine Key, Florida 33043
4. State of Florida
Department of Community Affairs
(Brigette Ffolkes, Assistant General
Counsel )
2740 Centerview Drive
Tallahassee, Florida 32399-2100
Se 1,000 Friends of Florida
(Richard Grosso, Legal Director)
926 E. Park Avenue
Tallahassee, Florida 32301
TABLE OF CONTENTS AND TABLE OF AUTHORITIES
Page
Questions Presented ......+-.+«-«+-+. 1
List of Dereies... <6: «2's abe 1k 2 eS
Official and Unofficial Reports of
Opinions (es * 2.950. 6 anes Se
SURLOGLOCIOR. 2. 6 64 ee te eS
Statement of the Case . « « «2:0 «9: ka
Appendix
A. State of Florida Land and Water
Adjudicatory Commission Final
Order
B. Opinion of the 3rd DCA
Cc. Order of Supreme Court of
Florida
D. Respondents'/Appellees' Motion
for ReHearing; Clarification
Pursuant to Florida Rule of
Appellate Procedure 9.330
gE. Supreme Court of Florida Order
Denying Motion for ReHearing and
Clarification
F. District Court of Appeals Order
withdrawing Mandate issued
December 9, 1993 and adopting
opinion of Supreme Court of
Florida.
TABLE OF AUTHORITIES
Cases
Loretto v. Teleprompter CATV SOrR.
458 US 419 (1992) .. . 21, 22
Moorman, et al v. Department of Community
of Affairs
626 So 2nd 1108, 3DC (1993) so-tae Be
Nollan v. California Coastal Commission
55 LW 5145 (1987) eee ané aa
Florida Constitution
ABCLGLO 2s BOGCAGR 2 «+ « © © © 15
Asticie 1, Section $9... -«s es 16
United States Constitution
Fe re oe ig sg oy ee. ec ee
Amendment XIV, Section 1... 9, 23
OFFICIAL AND OF L P
OPINIONS DELIVERED IN THE CASE
i A "Recommended Order" (based upon the
initial trial of this cause held on
February 6, 1992) was issued on April 30,
1992 by William J. Kendrick, Hearing
Officer, Division of Administrative
Hearings, Tallahassee, Florida which
reversed issuance of certain fence permits
by Monroe County, Florida.
ae A "Final Order" was issued on July
30, 1992 by Linda Loomis Shelly,
Secretary, Department of Community
Affairs, Tallahassee, Florida adopted the
"Recommended Order" issued by the
Administrative Hearing Officer.
3. On July 8, 1992 a Final Order was
issued by Douglas M. Cook, Secretary
Florida Land and Water Adjudicatory
Commission, Tallahassee, Florida which
confirmed the "Recommended Order" of the
Hearing Officer.
}
4. A Written Opinion of the District
Court of Appeals for the Third District of
Florida was issued on November 23, 1993,
such Opinion appearing at 626 So. Rep. 2nd
1108 et seq (1993).
5. The Supreme Court of Florida issued
its Written Opinion on September 28, 1995
(Department of Community affairs,
Petitioner v. Charles Moorman, et al,
Respondents, Case No. 82,946, 1995.
6. The District Court of Appeal of
Florida for the Third District withdrew
its Mandate previously issued in this
cause on December 9, 1993 by virtue of its
Order dated January 4, 1996.
JURISDICTION OF T?’E UNITED
STATES SUPREM? COURT
The Judgment or decree being reviewed
is the Opinion of the Supreme Court of
Florida rendered on September 28, 1995 in
Department of Community Affairs,
Petitioner v. Charles Moorman, et al,
Respondents, Case No. 82,946. Petitioners
herein Moorman and Your Local Fence filed
a Motion for rehearing with the Florida
Supreme Court on October 12, 1995, which
Motion was granted by the Florida Supreme
Court on October 24, 1995. After briefing
by the parties, the Supreme Court of
Florida denied the Motion for Rehearing
and Clarification filed by Petitioners
herein (Charles Moorman, et al), such
denial by Order dated December 20, 1995.
Jurisdiction of this Court is based
upon the due process clauses of the Fifth
and Fourteenth Amendments to the
Constitution of the United States and
8
ne
Supreme Court Rule 10-1(c) providing that
the Supreme Court of the United States of
America has discretionary jurisdiction
when a State Court of last resort (the
Supreme Court of the State of Florida
herein) has decided a Federal question in
a way that conflicts with the applicable
decisions of the United States Supreme
Court. The applicabie constitutional
provisions (the due process clause of the
Fifth and Fourteenth Amendments to the
Constitution of the United States) are as
follows:
United States Constitution
Amendment V
No person shall be held to
answer for a capital, or otherwise
infamous crime, unless on a
presentment or indictment of a Grand
Jury, except in cases arising in the
land or naval forces, or in the
Militia, when in actual service in
time of War or public danger; nor
shall any person be subject for the
same offence to be twice put in
jeopardy of life or limb; nor shall
be compelled in any criminal case to
be a witness against himself, nor be
deprived of life, liberty, or
property, without due process of law;
nor shall private property be taken
for public use, without just
compensation.
Amendment XIV, Section l.
All persons born or naturalized
in the united States, and subject to
the jurisdiction thereof, are
citizens of the United States and of
the State wherein they reside. No
State shall make or enforce any law
which shall abridge the privileges or
immunities of citizens of the United
10
i
eae ee
States; nor shall any State deprive
any person of life, liberty, or
property, without due process of law;
nor deny to any person within its
jurisdiction the equal protection of
the laws.
ll
a
STATEMENT OF THE CASE
This Appeal arises out of an Appeal
by the Florida Department of Community
Affairs (DCA) of tuilding permits issued
to Petitioners Moorma::s, Your Local Fence
and three other property owners, such
permits having been applied for and
received in the form of fence permits
issued by Monroe County, Florida. All of
the properties owned by the parties in the
area in which Your Local Fence operates
its business of constructing fences live
within various subdivisions within the Big
Pine Key Area of Critical County Concern
which is located in Monroe County,
Florida.
The Appeals of the building permits
in question by the DCA were consolidated
into a‘single Administrative Hearing. At
the Administrative Hearing testimony was
presented by the DCA principally through a
12
biologist and an expert in comprehensive
planning. The property owners in question
and the owner of the business in question
testified as to their reasons why they
desired to fence their property (in the
case of the property owners) and to
construct fences (in the case of the fence
company) on Big Pine Key, Monroe County,
Florida.
Testimony was produced at Trial at
the Administrative Hearing level by a
property owner indicating the necessity of
a fence to prevent their small children
from falling into a canal abutting their
back yard, such testimony including
affirmation that one of their children had
in fact fallen into the canal. The
subject property owners also provided
testimony that a fence would prevent their
dog, a rottweiler, from harming the Key
Deer. Other property owners testified
13
that they needed fences to protect their
property from trespassers and crime and to
prevent the Key Deer from eating their
vegetation.
Testimony was elicited from the DCA's
biologist expert to the effect that Key
Deer are in fact an endangered species.
The biologist also testified that fences
can be harmful to key deer because they
interrupt the normal movements of the
animals and exclude habitat but also
testified that in some cases fencing might
be a good idea to protect Key Deer. The
biologist further testified that he did
not regard all of the Big Pine Key
subdivisions in question as habitat for
key deer and that significant areas of
real property were included within the
habitat area defined by Monroe County's
ordinance prohibiting the construction of
fences for the protection of Key Deer.
14
At the conclusion of the
Administrative Hearing, the Hearing
Officer found that the fence permits in
question were contrary to Section 9.5-309
of the Monroe County Land Development
Regulations which ban all fences in the
subject Area of Critical Concern. The
Hearing Officer prepared a recommended
order reversing the decision of the Monroe
County Building Department to issue the
fence permits in question. The
recommended order of the Administrative
Hearing Officer was then adopted by the
Department of Community Affairs and the
State of Florida Land and Water
Adjudicatory Commission.
At the District Court of Appeal of
Florida for the Third District of Florida,
Petitioners herein asserted that’ the
blanket prohibition of fences by virtue of
the applicable Monroe County Land
15
Development Regulation was
unconstitutional as an invalid exercise of
police power, as a violation of due
process and also contended that’ the
subject land use regulations restricting
development of Big Pine Key infringed on
constitutionally protected property rights
and interests of landowners.
The Opinion of the District Court of
Appeal for the Third District (Charles
Moorman and Kathleen Moorman; Your Local
Fence and Monroe County, Appellants, v.
Department of Community Affairs, Appellee,
626 So 2nd 1108, 1993) held that Section
9.5-309(e) of the Monroe County Land
Development Regulations was
unconstitutional on its’ face. The
District Court of Appeal's Opinion was
based upon its determination that the
Florida Constitution (Article I Section 2)
provides that "all natural persons are
16
equal before the law and have inalienable
rights, among which are the right to
acquire, possess and protect property.”
Reference was also made to Article I,
Section 9 of the Florida Constitution
which provides that "no person shall be
deprived of life, liberty or property
without due process of law". The Third
District Court of Appeal also held that
the Land Development Regulation in
question was unconstitutional as a
violation of due process since the means
selected by the legislature did not bear
reasonable and substantial relation to the
purposes sought to be obtained and as
passing beyond the bounds of reason and
having assumed the character of a merely
arbitrary fiat.
It is notable that at the Third
District Court of Appeals level the Court
emphasized the testimony of the biologist
17
indicating that some fences would not harm
the key deer and would in fact in certain
circumstance be beneficial to them. The
expert testified that in three out of four
cases before the Administrative Hearing
Officer there was no biological basis for
denying the fence permit. Based upon the
foregoing, the Third District Court of
Appeals held that the complete ban on all
fences in Big Pine Key did not accomplish
“either of the two goals of the
.
:
4
legislation:
1.) The ban on all fences does not always
protect the key deer as some deer can be
harmed in places where there are no
fences; and
2.) The fence ban does not recognize the
individual's right to "protect, enjoy and
use one's property."
The Supreme Court of Florida issued
its Opinion on September 28, 1995 holding
18
that the application of the ordinance to
the particular fence permit issued to
Charles and Kathy Moorman was
constitutional as applied because it was
applied on a rational basis consistent
with state environmental policy. The
subject Opinion of the Supreme Court of
Florida failed and neglected to address or
recognize the rights of Your Local Fence,
Inc. as a business operation constructing
fences throughout Big Pine Key, Monroe
County, Florida (an area where the State
of Florida's biologist testified land was
included within a prohibited zone (in
terms of construction of fences) which was
in fact not Key Deer habitat.
The Opinion of the Supreme Court of
Florida recognized in its text that 4a
blanket prohibition of fencing as effected
by the subject Monroe County Land
Development Regulation was meant as an
19
interim restriction to be replaced within
a year by a more comprehensive regulation
that would better identify where fence
restrictions would be proper and where
they were unnecessary. The Court also
recognized that despite the interim nature
of the subject ordinance it had "been on
the books for more than five years before
the times in question with respect to the
building permits before the Court and had
not been modified so as to indicate the
termination date on the moratorium created
thereby or the standard by which
modifications thereto would be made as
required by the County Commission of
Monroe County, Florida in terms of its
mandate to develop a "focal point plan"
further analyzing the issue of fencing and
protection of Key Deer.
The Florida Supreme Court's opinion
defined as the nub of the issue "a simple
20
failure to revisit an interim" land use
regulation that was never intended to be a
permanent feature of the County Code Book,
as it seem to have become by the times in
question."
The right of due process in
Petitioners herein was recognized by the
Florida Supreme Court under the Florida
Constitution which the Court held does in
fact guarantee the right to enjoy property
and can include decisions regarding the
improvement of property. The Court's
opinion ultimately held that the Land
Development regulations in question did
meet constitutional muster in terms of due
process in that they "must be upheld
unless they bear no substantial
relationship to legitimate societal
policies." Based upon the foregoing the
Court held that the ordinance in question
should not have been stricken on its face.
21
Again, however the Florida Supreme Court
neglected to address the question of
unconstitutional broad base and of the
arbitrary and capricious nature of the
subject land development regulation. The
Florida Supreme Court's decision to allow
the ordinance in question to stand was
made in the face of their determination
that "the underlying intent was to replace
the ordinance with something less
restrictive, although this intent
regrettably was never carried forward into
action."
The decision of the Florida Supreme
Court runs directly contrary to the
determinations of this Court. This Court
has held on numerous occasions that the
right to exclude others [from one's real
property] is one of the most essential
sticks in the bundle of rights that are
commonly characterized as property”
22
(Loretto v. Teleprompter CATV Corp., 458
US 419 1992). This Court has also held in
Nollan v. California Coastal Commission,
(55 LW 5145, 1987) that a ban on fences
could be constitutional in some
circumstances but that "the evident
constitutional propriety disappears,
however, if the conditions substituted for
the prohibition utterly tails to further
the end advanced as to the justification
for the provision." The rational nexus
test established by Nollan indicates that
a lack of nexus between the condition and
the original purpose of a building
restriction converts that purpose to
something other than what it was. The
position of the Florida Supreme Court runs
contrary to the holding of this Court in
Nollan that the California Coastal
Commission could not require the property
owner to grant and easement over his
23
property as a condition for granting a
building permit. The total ban on fences
over an area of Big Pine Key, Monroe
County, Florida which includes significant
areas that are not Key Deer habitat
constitutes a clear breach of the Nollan
logical nexus standards which are based
(in significant part) upon the due process
Clause of the Fifth and Fourteenth
Amendment to the United States
Constitution. While it is a legitimate
goal to attempt to protect the Key Deer as
an endangered species that goal should be
shouldered equally be all citizens of the
State of Florida and not by an arbitrary
moratorium imposed upon selected
landowners without appropriate standards.
Due process questions were raised
throughout the proceedings referred to in
this Petition for Certiorari being first
initiated at the Administrative Hearing
24
level and continuing on through the
Florida Supreme Court level. The Florida
Constitution due process issues were dealt
with by the District Court of Appeal of
Florida for the Third District which held
that the land development regulation in
question was’ unconstitutional. The
Florida Supreme Court ruled on due process
issues and determined that the Land
Development Regulation in question was not
unconstitutional on its face and was
constitutional as applied to the Moormans
as individuals (neglecting to address Your
Local Fence, Inc. as a fence construction
company).
25
SUBSTANTIAL ISSUES PRESENTED
The questions presented herein are of
such impact as to hold in the balance of
their determination the economic viability
of Petitioner Your Local Fence, Inc.'s
business since the Monroe County Land
Development Regulation in question
constitutes a total ban on construction
within a specified geographic zone on the
basis of an open ended moratorium in terms
of time or standards of development.
Further, the Land Development Regulation
in question constitutes an arbitrary and
capricious legislative act which violates
the due process rights of Petitioners as
presented under the facts of this case.
The questions presented are, therefore, so
substantial as to require consideration
with briefs on the merits and oral
argument before their resolution.
Wherefore Petitioner requests that this
26
Court issue its Writ of Certiorari
accepting jurisdiction of this matter for
review.
Respectfully submitted,
THEODORE W. HERZOG, ESQUIRE
FLORIDA BAR NO. 151456
THEODORE W. HERZOG, P.A.
209 DUVAL STREET
KEY WEST, FLORIDA 33040
(305)-293-9655
(Admitted to the Bar of the
Supreme Court of the United
States of America on August 12,
1977.)
27
CERTIFICATE OF SERVICE
I, Theodore W. Herzog, Esquire, a
member of the Bar of the Supreme Court of
the United States of America, do hereby
certify that on this the 16th day of June,
1996 three copies of Petitioner's Petition
for Writ of Certiorari were served upon
the following persons:
David J. Russ, Esquire
Assistant General Counsel
Brigette A. Folkes
Assistant General Counsel
ATTORNEYS FOR APPELLANT
Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399-2100
Richard Grosso
1000 Friends of Florida
926 East Park Avenue
Tallahassee, Florida 32301
THEODORE W. HERZ ve
pee OS NT sk ee
28
APPENDIX
APPENDIX "A"
STATE OF FLORIDA
LAND AND WATER ADJUDICATORY COMMISSION
DEPARTMENT OF
COMMUNITY
AFFAIRS,
Petitioner,
VS. FLWAC CASE NO. APP-91-017
DOAH CASE NO. 91-4110DRI
CHARLES MOORMAN
and KATHLEEN
MOORMAN, Owners;
YOUR LOCAL FENCE,
Contractor; and MONROE
COUNTY,
Respondent.
DEPARTMENT OF
COMMUNITY
AFFAIRS,
Petitioner,
VS. FLWAC CASE NO. APP-91-029
DOAH CASE NO. 91-5966DRI
RAYMOND MCRAE and
ROSEMARIE MCRAE,
Owners; and MONROE
COUNTY,
Respondent.
DEPARTMENT OF
COMMUNITY
AFFAIRS,
Petitioner,
VS. FLWAC CASE NO. APP-91-021
DOAH CASE NO. 91-5968DRI
NICHOLAS HORNBACHER
and JEAN HORNBACHER,
Owners; YOUR LOCAL
FENCE; Contractor; and
MONROE COUNTY,
Respondent.
DEPARTMENT OF
COMMUNITY
AFFAIRS,
Petitioner,
VS. FLWAC CASE NO. APP-91-040
DOAH CASE NO. 91-6603DRI
JAMES DANIELS and
KATHRYN DANIELS,
Owners; YOUR LOCAL
FENCE; Contractor; and
MONROE COUNTY,
Respondent.
FINAL ORDER
This matter came before the Governor and Cabinet,
sitting as the Florida Land and Water Adjudicatory
Commission (‘Commission") on July 8, 1992, in Tallahassee,
Florida, pursuant to section 380.07, Florida Statutes (F.S.)
for consideration of a Recommended Order issued by the
Division of Administrative Hearings (DOAH) in the above
referenced proceeding. Based upon a review of the record in
this matter, the Commission voted to adopt the Findings of
Fact and Conclusions of Law set forth in the Recommended
Order dated April 30, 1992, and issue this Final Order
adopting the Hearing Officer's Recommended Order. It is
hereby ordered that the following building permits issued by
Monroe County be rescinded: Building Permit No.
9110002231 issued to Charles and Kathleen Moorman and
Your Local Fence; Building Permit No. 9110002807 issued
to Nicholas and Jean Hornbacher and Your Local Fence,
3
Building Permit No. 9110002853 issued to Raymond and
Rosemarie McRae; and Building Permit No. 9110003165
issued to James and Kathryn Daniels and Your Local Fence.
The DOAH Recommended Order is incorporated into this
Final Order as Exhibit A.
Rul; p hile Meek Bieietaiieats D
l. DENIED. The record supports the hearing officer's
Finding of Fact 12 regarding the construction of fences on
Big Pine Key in that Big Pine Key is the primary habitat of the
Key Deer, an endangered species, and section 9.5-479(d)(1),
Monroe County Code (MCC), states that "no development
shall be carried out in the Big Pine Key Area of Critical
County Concern (ACCC) except for single-family detached
dwellings on lots in the Improved Subdivision District”.
Moreover, section 9.5-309, MCC, states that "no fences shall
be erected until such time as this chapter is created to provide
for the regulation of fences within this ACCC". In Finding of
Fact 14, the hearing officer also stated that "over the course
of the past five years, Monroe County has discussed design
criteria for fences on Big Pine Key but has not yet adopted a
regulation that would provide for fences within the Big Pine
Key ACCC as mandated by Section 9.5-309, MCC".
2. DENIED. The records reflects on page 137 of the
Final Hearing Transcript that although Mr. Pete Kalla, expert
witness in biology, stated "I don't regard subdivisions as
habitat, per se, because I don't believe it's a natural situation
for Key Deer to be in subdivisions", he went on to say on
page 141 of the Final hearing Transcript that "fences are
harmful to the Key Deer in that they do two things: 1) they
interrupt the normal movements of the animal, and 2) they
exclude habitat from the animal." Mr. Kalla further stated
that "Key Deer move essentially constantly and they take up a
large area and to have fences in that area and affect their
movements is deleterious to them."
—————_
3. DENIED. In the hearing officer's Finding of Fact
22 of the Recommended Order with regard to the propriety of
fences on Big Pine Key, the hearing officer found, and the
Commission agrees, that although the Department of
Community Affairs ("Department") may have failed to appeal
every fence permit issued in the Big Pine Key ACCC, as
alleged by Mr. Moorman, Respondent his argument that as a
consequence of their failure, the Department should be
precluded from contesting the issuance of the subject permits,
is not persuasive. It was further stated by the hearing officer
in of Fact 23 of the Recommended Order that "neither the
applicants nor Your Local Fence made any inquiry of the
Department as to why some permits were appealed and others
were not, or requested that the Department waive its appeal
period, prior to erecting their fences. Under such
circumstances, it cannot be reasonably concluded that the
Department misled any applicant so as to bar it from
contesting the propriety of the subject fences, and those who
chose to erect their fences knowing their permits were not yet
effective acted at their peril."
WHEREFORE, this Commission hereby adopts the
Recommended Order including the Findings of Fact and
Conclusions of Law set forth in the Recommended Order, and
hereby enters this Final Order reversing Monroe County's
decision to issue the subject permits and deny the applications
of the Moormans, Hornbachers, McRae's, and Daniels, as
owners, as well as Your Local Fence, as contractor, for such
permits. It is further ordered that there are no changes in the
subject proposals that would make them eligible to receive the
permits as requested since the Monroe County Code prohibits
fences on Big Pine Key.
Any party to this order has the right to seek judicial
review of the order pursuant to section 120.68, Florida
Statutes, by the filing of a Notice of Appeal pursuant to Rule
9.110, Florida Rules of Appellate Procedure, with the Clerk
of the Commission, Office of Planning and Budgeting,
Executive Office of the Governor, Room 413 Carlton
Building, 501 South Gadsden Street, Tallahassee, Florida
32399-0001; and by filing a copy of the Notice of Appeal,
accompanied with the applicable filing fees, with the
appropriate District court of Appeal. n Notice of Appeal must
be filed with the Clerk of the Commission.
DONE AND ENTERED this 8th day of July 1992.
DOUGLAS M. COOK, Secretary |
Florida Land and Water
Adjudicatory Commission
FILED with the Clerk of the Florida Land and Water
Adjudicatory Commission this the 8th day of July 1992.
PATRICIA P. MCCRAY
Clerk, Florida Land and Water
Adjudicatory Commission\
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that a true and correct copy of
the foregoing was delivered to the following parties by U.S.
Mail this 8th day of July 1992.
DOUGLAS M. COOK, Secretary
Florida Land and Water
Adjudicatory Commission
Honorable Lawton Chiles | Honorable Jim Smith
Governor Secretary of State
The Capitol The Capitol
Tallahassee, Florida 32399 _— Tallahassee, Florida 32399
Honorable Gerald Lewis Honorable Tom Gallagher
Comptroller Treasurer
The Capitol The Capitol
Tallahassee, Florida 32399 Tallahassee, Florida 32399
Honorable Bob Butterworth Honorable Betty Castor
Attorney General Commissioner of Education
The Capitol The Capitol
Tallahassee, Florida 32399 Tallahassee, Florida 32399
Honorable Bob Crawford § David Maloney, Esq.
Commissioner of Agriculture Governor's Legal Office
The Capitol The Capitol, Suite 210
Tallahassee, Florida 32399 Tallahassee, Florida 32399
Theodore W. Herzog, Esq. Kathy Castor, Esq.
209 Duval Street Dept. of Community Affairs
Key West, Florida 33040 2740 Centerview Drive
Tallahassee, FL 32399-2100
Honorable Wilhelmina Harvey
Mayor, Monroe County
310 Fleming Street
Key West, Florida 33040
Randy Ludacer, Esq. Bob Herman
Monroe County Attorney § Monroe County Growth
310 Fleming Street Management Division
Key West, Florida 33040 5100 Junior College Road
Stock Island
Key West, Florida 33040
Florida Administrative Law Report
Post Office Box 385
Gainsville, Florida 32602
Jack London, Mayor ProTem
Alamo Office
Route 2, Box 674B
Summerland Key, Florida 33042
Commissioner Earl Cheal Commissioner John Stormont
Chaplin Building Plantation Key Gov't Center
5192 Overseas Highway 88820 Overseas Highway
Marathon, Florida 33050 Tavernier, Florida 33070
Commissioner Doug Jones
10
310 Fleming Street
Key West, Florida 33040
Carolyn Dekle, Director
South Florida Regional
Planning Council
3400 Hollywood Blvd
Suite 140
Hollywood, Florida 33021
William Kendrick, Hearing Officer
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Raymond and Rosemarie McRae
Route 3, Box 283F
Big Pine Key, Florida 33043
James and Kathryn Daniels
Route 3, Box 297
Big Pine Key, Florida 33043
Nicholas and Jean Hornbacher
Route 3, Box 223F
Big Pine Key, Florida 33040
Charles and Kathleen Moorman
Route 3, Box 439
Big Pine Key, Florida 33043
Your Local Fence, Inc.
Post Office Box 1720
Big Pine Key, Florida 33043
1]
APPENDIX "B"
Charles MOORMAN and Kathleen
Moorman; Your Local Fence, and
Monroe County, Appellants,
Vv.
DEPARTMENT OF COMMUNITY
AFFAIRS, Appellee.
No. 92-1785
District Court of Appeal of Florida,
Third District.
Nov. 23, 1993
Before SCHWARTZ, C.J., and BASKIN and
GERSTEN, J.J.
GERSTEN, Judge.
The appellants Charles Moorman and
Kathleen moorman (Moorman), and Your Local
Fence (Contractor), appeal a final order
of the Florida Land and Water Adjudicatory
Commission (Commission), rescinding Monroe
County fence permits. We reverse.
Moorman and three other property
owners’ applied for, and received, Monroe
County fence permits. The owners’
properties are located in various
subdivisions within the Big Pine Key area
of Critical County Concern (Area of
Critical Concern). Only one property is
situated in the natural habitat for Key
Deer while the other three properties are
not.
Appellee, The Florida Department of
Community Affairs (DCA), appealed each
permit contending: 1) that the permits
were inconsistent with section 9.5-309(e)
of the Monroe County Land Development
Regulations (MCLDR), because this section
bans all fences on Big Pine Key; and 2)
that there were no exceptions to this
section providing for fences.
The appealed permits were
consolidated into a single administrative
hearing. At the hearing, the DCA
presented testimony of a biologist and an
expert in comprehensive planning. Each
property owner testified why they desired
to fence their property.
One property owner testified that
their fence was needed to prevent their
three small children from falling into the
canal that abuts their backyard.
Previously, one child fell into the canal.
Additionally, a fence would prevent their
dog, a rottweiler, from harming the Key
Deer. The other property owners needed
fences to protect their property from
trespassers and crime, and the prevent the
Key Deer from eating their vegetation.
Significant testimony came from the
biologist. He explained that Key Deer are
endangered species whose long term
viability is threatened by habitat loss.
In his opinion, generally, fences are
harmful to Key Deer because they interrupt
the normal movements of the animals and
exclude habitat. However, he also stated
that in some cases fencing might be a good
idea.
The biologist did not regard all Big
Pine Key subdivisions as habitat for Key
Deer. He determined that the Daniels,
Hornbacher, and McRae subdivisions were
not Key Deer habitat. In his opinion,
there was no biological basis for
objecting to fences in these areas.
However, a fence on the Moorman property
would be harmful to Key Deer because it
would fence some Key Deer habitat.
The hearing officer found that the
fence permits are coritrary to section 9.5-
309, MCLDR, which bans all fences in the
Area of Critical Concern. The hearing
officer recommended a final order
reversing Monroe County's decision to
issue the various permits. Subsequently,
the Commission entered a final order
adopting the hearing officer's recommended
order and rescinded all four Monroe County
fence permits.
Appellants assert that the blanket
prohibition on fences contained in section
9.5-309(e), MCLDR, is unconstitutional as
an invalid exercise of police power.
Appellee contends that the fence
prohibition is constitutional because it
rationally relates to the protection of
Key Deer as a species.
The resolution of this issue requires
us to seek a harmonious balance between
the constitutional right to protect and
develop one's property and the right of
the Key Deer to exist unfettered. In
deciding this issue, we must review the
statutory and regulatory framework.
————————
Section 380.0552, Florida Statutes
(1991), designates the Florida Keys as
area of critical state concern. The
statute's intent was to establish, inter
alia, "a land use management system that
protects the natural environment of the
Florida Keys" and protects "the
constitutional rights of property owners
to own, use, and dispose of their real
property." §380.0552(2)(f), Fla.Stat.
(1991).
Similarly, Monroe County designated
most of Big Pine Key, "An Area of Critical
County Concern" in the MCLDR. Section
9.5-479(b) provides:
(b) Purpose: The purpose of the Big
Pine Key Area of Critical County
Concern is to establish a focal point
planning effort directed as
reconciling the conflict between
reasonable investment backed
expectations and the habitat needs of
the Florida Key Deer which is listed
as endangered under the Federal
Endangered Species Act.
In 1986, section 9.5-479(c)(3),
MCLDR, provided that Monroe County would
have twelve months to complete the focal
point plan for Big Pine Key. One of the
purposes of the focal point plan was to
provide criteria for permitting fences in
designated areas within the Area of
Critical Concern. After more than five
years, Monroe County failed to complete a
focal point plan.
Consequently, section 9.5309(e),
MCLDR, remained the only regulation
governing fences in the Area of Critical
Concern. This section provides:
It is the purpose of this section to
————————
regulate fences and freestanding
walls in order to protect the public
health, safety and welfare.
* * * * * * * &
(e) Big Pine Key Area of Critical
County Concern: No fences shall be
erected here until such time as this
chapter is created to provide for the
regulation of fences within this Area
of Critical County Concern.
Given this scenario, we address’ the
constitutionality of section 9.5-309(e).
[1,2] Statutes relating to
environmental land and water management
require a balancing of the _ state's
interest in protecting the public's
health, safety, and welfare against the
constitutionally protected private
property interests of the landowner.
Graham _v. Estuary Properties, Inc. 399
—
So.2nd 1374, 1377 (Fla.), cert. denied,
454 U.S. 1083, 102 S.Ct. 640, 70 L.ed.2d
618 (1981). The “exercise of the state's
police power must relate to the health,
safety, and welfare of the public and may
not be arbitrarily and capriciously
applied." Id. at 1379.
{3} In addition, due process also
requires that "the means selected by the
legislature bear a reasonable and
substantial relation to the purpose sought
to be attained." In re Forfeiture of 1969
Piper Navajo, 592 So.2d 233, 235 (Fla.
1992); Art. I § 9. Fla.Const.
"Reasonable restrictions upon the use
of the property in the interest of the
public health, welfare, morals, and safety
are valid exercises of the state's police
power." Sarasota County v. Bard, 302
So.2d 737, 741 (Fla. 1974). However,
"when a particular attempted exercise of
the police power by a state, or under its
authority, passes the bounds of reason and
assumes the character of a merely
arbitrary fiat, it will be stricken down
and declared void." Caroll v. State, 361
So.2d 144 (Fla, 1978).
"Every reasonable doubt must be
indulged in favor of the act. If it can
be rationally interpreted to harmonize
with the Constitution, it is the duty of
the court to adopt that construction and
sustain the act." Id. (quoting Holley v.
Adams, 238 So.2d 401, 404 (Fla, 1970).
[4] We recognize that the state's
interest in protecting endangered species
is a legitimate governmental interest.
See Moviematie Indus. Corp. v. Board of
County Comm'rs, 349 So.2d 667 (Fla. 3d DCA
1977) (preserving the ecological balance
of a particular area is valid exercise of
police power). However, we must decide
whether the means chosen by the
legislature (the absolute ban against
fences on Big Pine Key in section 9.5-309,
MCLDR), is narrowly tailored to achieve
the state's objective of protecting the
Key Deer through the least restrictive
alternative. See In re Forfeiture of 1969
Piper Navajo, 592 So.2d at 235.
[5] the DCA's expert testimony
established the impropriety of a blanket
prohibition on fences. The biologist
testified that some fences would not harm
the Key Deer. In fact, some fencing would
be beneficial to them. The same expert
testified that in three out of the four
cases requesting a permit, there was no
biological basis for denying the fences.
Thus, the complete ban on all fences
11
in Big Pine Key does not accomplish either
of the two goals of the legislation: 1)
the ban on all fences does not always
protect the Key Deer as some deer can be
harmed in places where there as no fences;
and 2) the fence ban does not recognize
the individual's right to protect, enjoy
and use one's property. Therefore, the
fence regulation clashes with Florida's
constitution.
Although we recognize one of the
cardinal rules in reviewing the
constitutionality of a statute is "never
to formulate a rule of constitutional law
broader than is required by the precise
facts to which it is applied," Brockett v.
Spokane Arcades, Inc. 472 U.S. 491, 501,
105 S.Ct. 2794, 2800, 86 L.Ed.2d 394
(1985) (quoting United States v. Raines,
362 U.S. 17, 21, 86 8.Gba Bees Beare 4
12
ae
L.Ed.2d 524 (1960), based upon the record
before us, there was simply no showing
that the statute was unconstitutional as
applied.
Accordingly, we hold section 9.5-
309(e), MCLDR, is facially
unconstitutional because the method chosen
by the legislature is not narrowly
tailored to achieve the state's objective
of protecting the Key Deer. See In re
Forfeiture of 1969 Piper Navajo, 592 So.2d
at 235. This is particularly so because
property rights are protected by numerous
provisions in the Florida Constitution.
Article I, section 2 provides that
"all natural persons are equal before the
law and have inalienable rights, among
which are the right... to acquire, possess
and protect property..." Article I,
section 9 provides that "no person shall
13
be deprived of life, liberty or property
without due process of law..." Article I,
section 23 provides that "every natural
person has the right to be let alone and
free from governmental intrusion into his
private life..."
"These property rights are woven into
the fabric of Florida history." Shriners
Hospitals for Crippled Children v.
Zrillie, 563 So.2d 64, 67 (Fla.1990). So
long as the public welfare is protected,
every person in Florida enjoys the right
to possess property free from unreasonable
government interference. Id.
We are aware of the need to protect
and preserve endangered species. However,
the "ecology and environment must to some
extent yield to the needs and wants of the
human factor in our scheme of life and
happiness," Jacksonville Elec. Auth. v.
14
Pollution Control Bd., 270 So.2d 759, 761
(Fla. lst DCA 1972). Here, there was
evidence that children's lives were in
danger on their own property because of
the ban on fences. We must be careful not
to escalate the goal of preservation of an
animal species over human life.
Accordingly, we reserve the order
entered below because section 9.5-309(e),
MCLDR is unconstitutional.
BASKIN and GERSTEN, J.J-, concur
BASKIN, Judge (concurring).
The partial dissent concludes that
the "section in question is invalid as it
applies to the appellants' particular
fence." Op. at 1111. That conclusion
ignores the fact that appellants’ home is
within key deer habitat and is properly
subject to fencing regulations for
environmental protection purposes. Thus,
15
the majority holds that the record does
not support a finding that the statute is
unconstitutional as applied. Op. at 11ll.
The statute is unconstitutional where, as
here, the restriction constitutes
unreasonable government interference in
appellants' constitutionally protected
property rights. See Shriners Hosps. for
Crippled Children v. Zrillie, 563 So.2d
64, 68 (Fla.1990); Art. 1, §2, Fla. Const.
For these reasons, I concur in the
majority opinion.
SCHWARTZ, Chief Judge (specially
concurring in part, dissenting in part).
I concur in the result and in the
opinion only to the extent that it
determines that the section in question is
invalid as it applies to the appellants’
particular fence. See Brockett v. Spokane
Arcades, Inc., 472 U.S. 491, 105 S.Ct.
16
2794, 86, L.Ed.2d 394 (1985); Fardig v.
Municipality of Anchorage, 803 P.2d 879
(Alaska Ct.App.1990); Palm Beach Mobile
Home, Inc. v. Strong, 300 So.2d 881
(Fla,1974); Monroe County v. Gonzalez, 593
So.2d 1143 (Fla. 3d DCA 1992). It is
neither necessary nor appropriate to
strike down the entire regulation which
may well be- indeed apparently is--
otherwise an appropriate and valid
exercise of the state's police power
authority to protect our environment and
wildlife. See Graham Vv. Estuary
Properties, Inc., 399 So.2d 1374, 1381
(Fla.1981), cert. denied, 454 U.S. 1083,
102 s.Ct. 640, 70 L.Ed.2d 618 (1981(;
Sarasota County v. Barg, 302 So.2d 737,
741 (Fla.1974); State ex rel. Wilcox v.
T.0.L., Inc., 206 So.2d 69, 71-27 (Fla.
4th DCA 1968).
APPENDIX "C"
MANDATE
SUPREME COURT OF FLORIDA
To the Honorable, the Judges of the:
District Court of Appeal, Third District
WHEREAS, in that certain cause filed in this Court styled:
DEPARTMENT OF COMMUNITY AFFAIRS v.
CHARLES MOORMAN, et al.
Case No.: 82,946
Your Case No.: 92-1785
The attached opinion was rendered on: September 28,
1995
YOU ARE HEREBY COMMANDED that further proceedings
be had in accordance with said opinion, the rule of this Court
and the laws of the State of Florida.
WITNESS the Honorable Stephen H. Grimes,
Chief Justice of the Supreme Court of Florida
and the Seal of said Court at Tallahassee, the
Capital, on this 20th day of December, 1995
Clerk of the Supreme Court of Florida
SUPREME COURT OF FLORIDA
No. 82,946
DEPARTMENT OF
COMMUNITY AFFAIRS,
Petitioner,
vs
CHARLES MOORMAN, et al.,
Respondents.
(September 28, 1995)
KOGAN, J.
We have for review. Moorman V. Department of
Community Affairs, 626 So. 2d 1108 (Fla. 3d DCA 1993),
because of express and direct conflict with Harrell's Candy
Kitchen Inc. v. Sarasota-Manatee Airport Authority, 111 So.
2d 439 (Fla.1959), among other decisions. We have
jurisdiction. Art. v, § 3 (b) (3), Fla. Const.
APPENDIX "D"
SUPREME COURT OF FLORIDA
DEPARTMENT OF COMMUNITY
AFFAIRS,
Petitioner/Appellant,
vs. CASE NO. 82,946
CHARLES MOORMAN,
KATHLEEN MOORMAN,
and YOUR LOCAL FENCE,
Respondents/Appellees.
ON REVIEW FROM
THE DISTRICT COURT OF APPEAL
THIRD DISTRICT
Case No. 92-1785
THEODORE W. HERZOG
Florida Bar Number 151456
Attorney for Respondents/Appellees
209 Duval Street
Key West, Florida 33040
(305) 293-9655
Page
Table of Contents ...++-e«¢-c«eee eve &
Table of Authorities .....+..e- ii
Statement of the Case ........- iii
Motion for Rehearing; Clarification. . 1
ns 6 @ 6 6 6 6 «2 6.8 6 2 e -w 48
CeomGimeiom «© «© ee ee eer ee ewe SS
Certficate of Service .....+-+-s- 14
I.
This Court's Opinion of September 28,
1995 misapprehends and/or overlooks
the due process and equal protection
violations of application of the
Monroe County Fence Ordinance to
Appellees based upon Trial testimony
controverting the State's expert
testimony which was relied upon by
this Court in its Opinion and the
lack of adoption of a Focal Point
Plen by Monroe County as required by
County ordinance.
Cases:
Page(s)
Mo nv t u fa
626 So.2nd (Fla. 3d DCA 1993) . lel 3o Ve
8, 10, Il
H a da he . Vv
Sarasota-Manatee Airport Authority
111 So. 2nd 439 (Fla. 1959) . . « «i+ + 2
ii
STATEMENT OF THE CASE
This case was argued before the
Florida Supreme Court on October 5, 1994
after the submission of briefs by the
parties. This Court rendered its Opinion
on September 28, 1995.
Respondents/Appellees appear now to file
their Motion for Re-Hearing/Clarification
Pursuant to Florida Rules of Appellate
Procedure 9.330.
iii
COMES NOW, Respondents/Appellees
pursuant to Florida Rule of Appellate
Procedure 9.330 and file this their Motion
for Rehearing; Clarification based upon
the argument set forth at pages 2 through
6 hereof.
Respondents/Appellees pray that this
Court enter its order allowing for re-
hearing of this cause and clarification
modifying the Opinion filed herein on
September 28, 1995 so as to declare and
establish application of the Monroe County
Fence Ordinance to Charles and Kathleen
Moorman as unconstitutional as applied or,
alternatively, to order further procedings
below concerning the application of the
Monroe County fence ordinance to
Respondents/ Appellees.
ARGUMENT
I. THIS COURT'S OPINION OF SEPTEMBER 28,
1995 MISAPPREHENDS AND/OR OVERLOOKS THE
DUE PROCESS AND EQUAL PROTECTION
VIOLATIONS OF APPLICATION OF THE MONROE
COUNTY FENCE ORDINANCE TO APPELLEES BASED
UPON TRIAL TESTIMONY CONTROVERTING THE
STATE'S EXPERT TESTIMONY WHICH WAS RELIED
UPON BY THIS COURT IN ITS OPINION AND THE
LACK OF ADOPTION OF A FOCAL POINT PLAN BY
MONROE COUNTY AS REQUIRED BY COUNTY
ORDINANCE.
In its Opinion of September 28, 1995
in this cause, this Court held that the
Opinion entered by the Third District
Court of Appeals in Department of
Community Affairs v. Moorman, 626 So. 2nd
1108 (Fla. 3D DCA 1993) is in express and
direct conflict with Harrell's Candy
Kitchen, Inc. v. Sarasota-Manatee Airport
Authority, 111 So. 2nd 439 (Fla.-° 1959),
among other decisions.
The Harrell case clearly holds that
there is no question concerning the power
of the Legislature to authorize agencies
of the government to adopt and enforce
zoning regulations. The Harrell case also
establishes that duly enacted zoning
ordinances are presumptively valid with
the burden being upon the party attacking
such ordinances to establish and prove
that the subject regulation is
unreasonable and bears no substantial
relation to the public health, safety,
morals or general welfare.
Respondents/Appellees do not controvert
the rule(s) of law established by the
Harrell case but assert that they are
misapplied by this Court in the instant
case as being a basis for allowing the
Oy NON, CEE HEN Oy
2 nme “To ee
Monroe County fence ordinance in question
to stand as validly applying to
Respondents/Appellees.
As this Court acknowledges at page 2
of its Opinion rendered herein on
September 28, 1995, the ordinance in
question had been on the Monroe County
books for more than five years before this
matter was tried. The trial transcript
below indicates at page 116 that a Focal
Point Plan for the Big Pine Key area of
critical county concern has not been
submitted to the department of Community
Affairs for approval or adopted by Monroe
County. It is uncontroverted that the
interim ordinance banning fences on Big
Pine Key was enacted in 1986 subject to a4
county ordinance requirement that a Focal
point Plan be adopted within twelve months
of that date. As of the time of argument
of this case before this Court, and at the
present time, a Focal Point Plan has not
been adopted so that the twelve month time
period within which to adopt a Focal Point
Plan has been exceeded by eight years.
Further, the State's expert at Trial,
Dr. Peter Kalla, testified that the
ordinance in question covers substantial
areas of Big Pine Key, Florida (i.e.:
subdivisions located thereon) which are
not natural key deer habitat (transcript
at pages 137 and 138). Dr. Kalla also
testified that he (and others) have
reasoned that in some cases fencing might
be a good idea. Dr. Kalla's testimony was
that such reasoning was the basis of the
establishment of an interim fence
ordinance for Big Pine Key (transcript at
page 142). The foregoing circumstance and
opinion ultimately yielded Dr. Kalla's
UEP EAPO BSS
PN Rae IN Pe ee Ay
o9 ER"
testimony that there were "good fences and
bad fences" as is noted in this Court's
Opinion of September 28, 1995. Most
notably, Dr. Kalla testified that it is
accurate to say that the ordinance
excluding fences on Big Pine Key extends
beyond specific recommendations made by
him based upon his expertise as explained
at Trial (transcript at page 149).
Notwithstanding the foregoing, this
Court's Opinion entered in this cause
indicates at page 8 thereof that the
Moormans' fence is harmful to key deer
habitat based upon "uncontroverted" expert
evidence. Respondents/Appellees suggest
that Dr. Kalla's own testimony and expert
opinion calls for and recommends an
analysis of habitat and specific fencing
considerations as a pre-requisite for a
final and consistent determination with
respect to the establishment of a proper
ordinance. The simple fact that Dr. Kalla
testified as to the question as to whether
fences are "good or bad" as being the
basis for the establishment of an interim
ordinance followed by a specific Focal
Point Plan, establishes that the interim
ordinance is a patchwork approximation (at
best) requiring further consideration.
That fact coupled with the circumstance
that the interim ordinance has now been in
place for nine years argues in and of
itself for the proposition that’ the
application of the Monroe County fence
ordinance to the residential fence owned
by the Moormans as individuals requires
further consideration consistent with this
Court's Opinion before it can be
determined to be harmful to key deed
habitat on a factual basis.
PEON GEE KEG
}
g
+
i
é
:
?
i
Further, the existence of the interim
ordinance for a period eight years in
excess of the twelve month allotted time
for the adoption of a Focal Point Plan
establishes facial unconstitutionality of
the Monroe County fence ordinance in
question.
This Court's statement in its Opinion
that the evidence of Dr. Kalla was
uncontroverted is inaccurate. This Appeal
is based upon. several fence permit
applications beyond those relating to the
Moorman residential fence alone.
Respondents/Appellees in this cause are
Kathleen Moorman, Charles Moorman and Your
Local Fence. Your Local Fence's Appeal
herein relates to the issuance of several
peruite beyond the fence permit applying
to the Moorman residence (i.e.: to
Daniels and Hornbacher). At Trial James
Daniels and Kathryne Daniels (whose permit
was secured by Your Local Fence and is
therefore subject to this appeal )
testified that the application of the
fence permit to their lot (secured through
Your Local Fence as contractor) was not
harmful to key deer habitat in that it
provided for safety and protection of
their children from falling into a canal
adjacent to their property and provided
the function of fencing in their
rottweiler dog for the protection of key
deer (transcript at pages 59 through 64).
Testimony was also presented at Trial by
Jean and Nicholas Hornbacher (whose permit
was also obtained by Your Local Fence) to
the effect that fences provided protection
from destruction of their private property
in the form of browsing damage to
landscaping by key deer. The testimony
10
provided by the foregoing witnesses, when
coupled with the testimony of Dr. Kalla to
the effect that an interim ordinance was
to be replaced by a Focal Point Plan
considering a balancing of private
property interests, necessarily mandates a
further trial Court evidentiary hearing.
Dr. Kalla's opinion relative to the
Moorman fence specifically as relied upon
by this Court is inappropriate when
considered in light of his other testimony
as pointed out above and the testimony of
other witnesses at Trial. Further hearing
at the trial level is necessary in order
to determine whether or not the ordinance
in question is constitutional as applied
to the Moorman's individual fence in the
event that this Court does not view the
ordinance in question as facially
unconstitutional.
11
Respondents/Appellees respectfully
submit that this Court has unnecessarily
extended itself to make a specific factual
determination as to the Moorman's
residential fence in a circumstance which
requires additional findings of fact at
the trial level in the event that the
ordinance in question is not facially
unconstitutional.
12
CONCLUSION
This Court should enter its Order
granting a rehearing of this cause or
further clarify its Opinion of September
28, 1995 either declaring the Monroe
County ordinance in question as facially
unconstitutional or mandating that the
Trial Court below make additional findings
of fact and factual determinations before
the fence permit issued to Kathleen and
Charles Moorman is determined to be
harmful to key deer habitat.
Respectfully submitted,
THEODORE W. HERZOG
Florida Bar Number 151456
Attorney for Appellants
209 Duval Street
Key West, Florida 33040
(305) 293-9655
13
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and
correct copy of the foregoing has been
furnished to the parties listed below on
this the 12th day of October, 1995 by
Facsimile Telephone Transmission and
United States Mail.
THEODORE W. HERZOG
David J. Russ, Esquire
Assistant General Counsel
Brigette A. Folkes
Assistant General Counsel
ATTORNEYS FOR APPELLANT
Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399-2100
Richard Grosso
1000 Friends of Florida
926 East Park Avenue
Tallahassee, Florida 32301
14
APPENDIX "E"
Nae ee
SUPREME COURT OF FLORIDA
WEDNESDAY, DECEMBER 20, 1995
DEPARTMENT OF
COMMUNITY AFFAIRS,
Petitioner,
VS. CASE NO. 82,946
District Court of Appeal,
3rd District - No. 92-1785
CHARLES MOORMAN,
KATHLEEN MOORMAN,
and YOUR LOCAL FENCE,
Respondents.
/
Respondents’ Motion for Rehearing and Clarification
filed in the above cause is hereby denied.
GRIMES, C.J.,. OVERTON, SHAW, KOGAN, HARDING,
WELLS and ANSTEAD, JJ., concur
A True Copy TC
cc: Hon. Louis J. Spallone, Clerk
TEST:
Ms. Brigette Ffolkes
Mr. David J. Russ
Mr. Thomas Herzog
Sid J. White Mr. Richard Grosso
Clerk, Supreme Court
APPENDIX "F"
IN THE DISTRICT COURT OF APPEAL
CHARLES MOORMAN,
et al.
Appellants,
VS.
DEPARTMENT OF
COMMUNITY
AFFAIRS,
Appellee.
OF FLORIDA.
THIRD DISTRICT
JULY TERM, A.D. 1995
JANUARY 4, 1996
CASE NO. 92-1785
DOAH CASE NO. 91-41 10DRI
FLWAC CASE NO. APP-91-017
WHEREAS, the opinion rendered by this Court on
November 23, 1993 (626 So. 2nd 1108) reversed the order of
the Florida La-4 and Water Adjudicatory Commission, in the
above styled cau:e?; and
WHERL AS, on review of this Court's opinion by
Petition for Review, the Supreme Court of Florida, by its
opinion filed September 28, 1995,a nd its mandate now lodged
in this Court, quashed this Court's opinion;
NOW THEREFORE, this Court withdraws its mandate
issued in this cause on December 9, 1993, vacates its opinion
filed in the cause on November 23, 1993, and adopts, as its
own, the opinion of the Supreme Court of Florida, and remands
for further proceedings in accordance with the opinion of the
Supreme Court. Costs allowed shall be taxed pursuant to
Florida Rule of Appellate Procedure 9.400(a).
SCHWARTZ, C.J., and BASKIN and GERSTEN, JJ.
concur.
A True Copy
ATTEST
LOUIS J. SPALLONE
Clerk District Court of
Appeal Third District
By JS/
Chief Deputy Clerk
cc: Theodore W. Herzog
David J. Russ and Brigette A. Ffolkes
Florida Land and Water Adjudicatory
Commission
/mcb
be
id
a
ae
e
‘s
‘
&
3
5
:
be
f
&
*
&
5
&
¢
:
a
a
§
4
4
5
2
4
;
4
4
3
2
This case involves the validity of a land-use ordinance
enacted to proteci an endanger species, the miniature
Florida Key deer. The regulation affects Big Pine Key where
the deer now are largely concentrated. Human development
on the Key has put the deer perilously close to extinction, and
their numbers are estimated to be only 350 to 4300 animals.
The minimum number needed to sustain a viable species is
considered 100 to 250 animals. The animals are further
endangered by human attempts to feed them, by pet dogs that
may kill them, and by automobiles.
The ordinance in question prohibits the erection of
fencing in portions of Big Pix: Key, where the respondents
own property. It was enacted because, in a natural
environment, Key deer must roam freely over slash pinelands
and wetlands in search of food and water. This necessarily
means the deer also must roam over some privately owned
lands. The blanket prohibition on fencing was meant as an
interim restriction to be replaced within a year by a more
comprehensive regulation that would better identify where
fence restrictions would be proper and where they were
unnecessary. Despite its interim nature, the ordinance had
been on the books for more than five years before the times in
question here.
Charles Moorman owns a lot located in the slash
pinelands of Big Pine Key. He also is owner of Your Local
Fence, a company that is a respondent in this review.
Moorman filed for a permit to build a six-foot-high 400-foot-
long fence, which Monroe County granted. This was done
notwithstanding the "interim" county ordinance. The record
contains evidence that Moorman's fence is in a location that
will adversely affect the Key deer.
The Department of Community Affairs ("DOCA")
appealed the County's decision pursuant to DOCA's authority
over areas Oi critical state concern. § 380.07 (2), Fla. Stat.
(1993). The Moorman lot sits in an area designated as a
"critical state concern" in 1979.’ § 380.0552, Fla. Stat.
(1993).
The case was referred to a Division of Administrative
Hearings ("DOAH") officer, who found the permits improper.
The finding specifically noted that the permits were issued as
a matter of right. The officer recommended that the Cabinet,
sitting as the Florida Land & Water Adjudicatory Commission
("Commission"), rescind the permits, and the Cabinet agreed.
The Moormans then appealed to the Third District, which
ruled the anti-fencing regulation facially unconstitutional.
The nub of the issue here is simple failure to revisit an
"interim" land-use regulation that was never intended to be a
permanent feature of the county code book, as it seemed to
have become by the times in question. While Monroe County
chose not to apply the ordinance to respondents, DOCA now
'The fact the land in question sits in an area of critical state
concern is crucial to the result in this case, because it
identifies an environmental concern unique to Big Pine Key.
4
has taken the position that the ordinance must be enforced
according to its strict letter. DOCA likewise contends that
sufficient justification exists for such a blanket prohibition on
fencing in the affected area.
We do not dispute that the State has a legitimate
interest in protecting the natural habitat of the Keys and most
especially of the Key deer. To this end, the State does in fact
have a right to use its police power to establish land-use
regulations addressing environmental concerns. Graham v.
Estuary Properties, 399 So. 2d 1374 L. Ed. 2d 618 (1981).
The clear policy underlying Florida environmental regulation
is that our society is to be the steward of the natural world,
not its unreasoning overlord. As the Constitution itself states:
It shall be the policy of the state to
conserve and protect its natural resources
and scenic beauty. Adequate provision shall
be made by law for abatement of air and water
pollution and of excessive and unnecessary
noise.
Art. II, § 7, Fla. Const. There is an obvious public interest in
5
such a policy, given the fact that environmental degradation
threatens not merely aesthetic concerns vital to the State's
economy but also the health, welfare, and safety of substantial
numbers of Floridians. Sarasota v. Barg, 302 So. 2d 737
(Fla. 1974).
The right of equal protection embodied in article I,
section 2 stands for many things, but it does not restrict the
State's ability to establish or mandate reasonable
environmental regulations, even those that may apply only in a
certain area, where the State is addressing an environmental
problem peculiar to the area. Even if equal protection is
implicated here, the State would only need a rational basis for
the zoning restriction. Here, the State has identified a
sufficient interest in this instance to justify the classification in
question. The interest is plainly stated in article II, section 7
of the Constitution and is only underscored by the unique
problem of the Key deer.
The right of privacy set forth in article I, section 23
also does not apply here for a self-evident reason: The
decision to use land in a manner contrary to lawful public
environmental policy is simply not a private act. Art. I, § 23,
Fla. Const. Landowners do not have an untrammeled right to
use their property regardless of the legitimate environmental
interests of the State.
The right of due process contained in article I, section
9 poses a somewhat different problem, because it does in fact
guarantee the right to enjoy property. Within limits, that right
can include decisions regarding the improvement of property.
Nevertheless, this personal right does not necessarily
supervene the rational concerns of public environmental
policy. Due process, in other words, seeks to find a balance
between public and private interests, rot to make the
landowner lord over the State, nor the State lord over the
landowner.
The State is given wide range in exercising its lawful
powers to regulate land use for environmental reasons, and
any such land-use regulations thus are valid if supported by a
rational basis consistent with overall policies of the State. See
Board of County Comm'rs v. Snyder, 627 So. 2d 469 (Fla.
1993). Landowners simultaneously are protected by yet
another feature of the law: Any resulting erosion of property
value beyond reasonable limits is recompensable by means of
inverse condemnation. Art. X, § 6, Fla. Const.; art. I, § 9,
Fla. Const. In sum, the rights of property owners are limited
by the lawful environmental policies of the State, and the
State acting within its lawful power to regulate property is
likewise limited by the depth of its purse. Id.
However, we have repeatedly held that zoning
restrictions must be upheld uniess they bear no substantial
relationship to legitimate societal policies. E.g., Harrell's
Candy Kitchen v. Sarasota-Manatee Airport Authority, 111
So. 2d 439 (Fla. 1959). Here, the record contziiis competent
substantial evidence that the unregulated erection of fencing
in the affected area is contrary to Florida's overall policy of
environmental stewardship. In this sense, we agree with the
argument of DOCA and disagree with the district court
below. Because the ordinance promotes a valid public policy,
it should not have been stricken on its face.’
Nevertheless, we are constrained to determine
whether any valid basis existed for denying the Moormans a
permit. We of course recognize that the enactment in
question today was intended merely as an "interim" rule. This
fact in turn means the blanket prohibition against fencing was
never regarded as an essential feature of public policy.
Rather, the underlying intent was to replace the ordinance
> We do note that the Cabinet sitting as the Florida Land &
Water Adjudicatory Commission may rescind land-use
permits in the Florida Keys or "may attach conditions and
restrictions to its decisions." § 380.07, Fla. Stat. (1993). The
record is unclear why the Cabinet did not exercise this last
grant of authority here.
9
with something less restrictive, although this intent regrettably
was never carried forward into action.
In this vein, DOCA's bwn expert witness testified in
the following terms at the DOAH hearing below:
Q. All right. Now, sir, the statements
that you've made today, and just now, and
also one more, you gave indication that there
were good fences and bad fences, that's
within the standard you're now planning, is
that true?
A. Yes.
Q. Because I want to characterize that
accurately. But again, now, the opinions
that you are expressing now are not
necessarily the basis of the ordinance which
is in place, isn't that true? Since it
precludes fences?
A. Yes, you're right. I had nothing to
do with that ordinance. So, I can't comment
on it.
Q. Certainly, and that's the only point
I'm trying to make here. But it is accurate
to say that the ordinance excluding fences,
or precluding the, extends beyond what your specific
recommendations are based on your expertise
as you've explained today?
A. That's correct.
However, the uncontroverted expert evidence clearly
10
a
indicated that the Moormans' fence--the only one at issue here
today--was harmful to Key deer habitat.
Based on the foregoing, we find that the application of
the ordinance to this particular fence permit was
constitutional because it was based on a rational basis
consistent with state environmental policy. For this reason,
the decision below is quashed and this cause is remanded for
proceedings consistent with our views here.
It is so ordered.
OVERTON, SHAW, HARDING and ANSTEAD, JJ.,
concur. GRIMES, C.J., concurs in part and dissents in part
with an opinion, in which WELLS, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE
REHEARING MOTION AND, IF FILED, DETERMINED.
GRIMES, C.J., concurring in part and dissenting in part.
I agree that the ordinance is constitutional on its face.
I cannot agree that it was necessarily constitutional as applied.
At the hearing, Charles Moorman testified that the purpose
for his fence was to keep his neighbor's two children from
1]
—s" oe se en See ee
s “Sos
*
pel ti naan: oe
3 eet oe yet
Pisa
" ee oe ee eee
falling into his hot tub and to keep the Key Deer from eating
his plants. He also testified that his fence was only about 400
feet long
Despite the fact that this interim ordinance had been
on the books for more than five years, this case was tried on
an all-or-nothing basis upon the assumption that the
Moormans' permit must either stand or fall without
adjustment. By virtue of its authority to attach conditions and
restrictions to its decision, the Cabinet had the power to
fashion a remedy that would soften the blanket prohibition
against fencing while at the same time honor environmental
stewardship.
I would remand the case for another hearing directed
toward whether the regulation was unconstitutional as applied
to the Moormans or, alternatively, whether the permit should
be modified.
WELLS, J., concurs.
12
a
Application for Review of the Decision of the District Court
of Appeal - Direct Conflict of Decision‘
Third District - Case No. 92-1785
David J. Russ, Assistant General Counsel and Brigette A.
Ffolkes, Assistant General Counsel, Department of
Community Affairs, Tallahassee, Florida,
for Petitioner
Theodore W. Herzog, Key West, Florida,
for Respondents
Richard Grosso, Tallahassee, Florida,
Amicus Curiae for 1000 Friends of Florida
13
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.