Opinion
No. 82-891.
September 7, 1982. Rehearing Denied October 12, 1982.
Petition for review from the Circuit Court for Dade County, Appellate Division, N. Joseph Durant, Moie J.L. Tendrich, and Michael H. Salmon, JJ.
Michael R. Storace, Coral Gables, for petitioner.
Robert A. Ginsburg, County Atty., and Eileen Ball Mehta, Asst. County Atty., Miami, Fla., for respondent.
Before HUBBART, C.J., and HENDRY and BASKIN, JJ.
Petitioner, National Bulk Carriers (NBC), seeks certiorari review of an order of the Dade County Circuit Court rendered in its appellate capacity. The order, which affirmed, without prejudice to NBC to file a separate inverse condemnation action, the decision of the Dade County Board of Commissioners (Board) to deny NBC's application for a dredge and fill permit and grant the County's application to downzone the property from "heavy industrial" to "open space," states:
The denial by the Appellees of the application for an unusual use permit for excavation and filling of Appellant[']s property was correct; as was the granting of the application for a district boundary change filed by the County's professional staff. Both actions are affirmed. However, nothing in the County's action approved here or in this opinion shall be construed as a denial of the Appellant's right to claim, in a separate action, that the actions taken by the County constituted a taking of Appellant's property for a public purpose without compensation.
We have jurisdiction. Fla.R.App.P. 9.030(b)(2)(B).
Based upon careful examination of the briefs, record and argument in this case, we agree with the parties that the Circuit Court departed from the essential requirements of law in failing to rule on the inverse condemnation issue. Section 373.617(2), Florida Statutes (1981), provides that circuit court review of agency action with respect to a permit "shall be confined solely to determining whether final agency action is an unreasonable exercise of the state's police power constituting a taking without just compensation." See also Kasser v. Dade County, 344 So.2d 928 (Fla. 3d DCA 1977). As the proper forum for resolution of this issue, the Circuit Court erred in requiring NBC to file a separate action. Accordingly, we grant the writ, quash that portion of the order allowing NBC to maintain a separate action, and remand the case to the Circuit Court for a determination of whether the Board's action constitutes a taking without just compensation. Sec. 373.617(3), Fla. Stat. If the court so determines, it shall remand the matter to the Board for further action in accordance with section 373.617(3). The remainder of the Circuit Court's order is affirmed.