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Property Owners Should Not Be Denied Full and Direct Access to Federal Court

Agripost v. Dade County

Contact: J. David Breemer

Status: Amicus brief filed.

This case arises from a property owner’s decades-long attempt to obtain compensation for a local government’s revocation of a land use permit. Agripost subleased a plot of publicly owned land from Dade County, Florida, in 1986 for the purposes of constructing and operating a waste disposal plant that could convert waste into agriculturally useful compost. One of the conditions of the sublease was that Agripost obtain and maintain a use permit. The sublease also was conditioned on Agripost’s continuing use of the land for the described waste conversion plant.

Agripost applied for and received a conditional use permit, constructed the plant, and began operating it in 1989. One of the conditions of the use permit is that Agripost “compl[ies] with all conditions and requirements of the Department of Environmental Resources Management.”

Soon after, the Agripost plant began having problems with odor emissions. The County’s Department of Environmental Resource Management subsequently revoked the use permit because it deemed the plant’s continued operation a public nuisance. This decision was upheld by the Zoning Appeals Board and then the County Commission. Without the use permit, Agripost’s lease on the land was terminated and its plant rendered useless.

Agripost challenged the County’s decision to revoke the permit before a panel of the Dade County Circuit Court that handles administrative appeals. This court affirmed the agency’s decision after concluding that Agripost violated the terms of the conditional permit when it failed to reduce the noxious fumes generated by the plant’s operation. Agripost sought but was denied review of the case by the Florida Third District Court of Appeal.

After this first go-around in state court, Agripost brought suit against the County in the United States District Court for the Southern District of Florida, alleging that the revocation of the unusual use permit amounted to a regulatory taking without just compensation as required by the Fifth Amendment’s Takings Clause. The District Court dismissed the complaint for lack of ripeness under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985).

Agripost then sued the County in the state court, seeking damages based on, among other state law claims, inverse condemnation, alleging that the permit revocation deprived it of all economically viable use of the property. The complaint raised a Fifth Amendment Takings Clause claim, but expressly “reserved” the right to litigate this federal claim in federal court after the state court proceedings ended. The state courts ultimately rejected Agripost’s state law claims on the basis that it did not have a constitutionally protected property interest.

Agripost then refiled its complaint to the federal District Court, seeking to raise its reserved Fifth Amendment regulatory takings claim. The District Court held that the federal takings claim was barred by claim and issue preclusion as a result of the disposition in Agripost’s state court suit. The Eleventh Circuit affirmed the dismissal. Agripost now is filing a petition for certiorari to the United States Supreme Court. The first question presented by the petition asks the Court to overrule Williamson County. PLF’s brief supports the petition for review.