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4th DCA upholds $11 million award to Broward homeowners |
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Date: May 12, 2010
Daily Business Review
A state appeals court today upheld an $11 million award to more than 50,000 Broward County homeowners who lost trees in Florida’s ineffective citrus canker eradication program. The court cited property rights over state rights.
The 4th District Court of Appeal turned aside all of the arguments offered by the state Department of Agriculture and Consumer Services in its challenge to the Broward Circuit trial and jury award.
Lead state attorney Wesley Parsons, an Adorno & Yoss partner in Coral Gables, said he was disappointed and expected to appeal to the Florida Supreme Court.
The three-judge panel specifically rejected a state bid to reassess the scientific evidence, saying, “None of the evidence supporting the judgment is inherently incredible or improbable.”
The court concluded the eradication program pursued by the state as a nuisance abatement was an effort “to benefit the citrus industry in Florida” rather than the public good.
“Cutting down and destroying healthy noncommercial trees of private citizens could hardly be more definitively a taking,” Judge Gary Farmer wrote in an opinion with concurrences by Judges Carole Taylor and Spencer Levine.
About 577,000 canker free citrus trees were torn out statewide. In litigation, the state claimed the trees were worthless.
Farmer questioned that assessment, writing, “If trees are destroyed not to prevent harm but instead to benefit an industry, it is difficult to understand how DACS can argue on appeal that the trees legally constituted a nuisance without any value.”
Levine wrote a specially concurring opinion that will hearten property rights activists.
“By requiring the state to abide by its constitutional obligation to compensate individual homeowners, we safeguard the property rights of all,” he wrote. The judge wanted “to emphasize the clear legal right of the individual homeowner to receive just compensation as a result of the actions of the state.”
Bobby Gilbert, the homeowners’ lead counsel from Alters Law Firm in Miami, said the decision “validates everything we’ve been fighting for over the past decade.”
Parsons insisted “no healthy tree was destroyed,” explaining exposed trees were removed before showing any canker symptoms. “A tree could look healthy but not be healthy.”
Gilbert asserts the state wasted more than $500 million on the tree-cutting program and millions more on the litigation. Similar cases are pending in Miami-Dade, Palm Beach, Lee and Orange counties.
In 2005, the Florida Supreme Court ruled homeowners who lost their citrus trees are owed more than “token” compensation. The state program was abandoned less than a year later after hurricane winds spread the canker bacteria so far that federal officials pronounced the eradication campaign unwinnable.
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