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City of Fort Lauderdale v. Hinton

Florida Court of Appeals, Fourth District

July 24, 2019

CITY OF FORT LAUDERDALE, Appellant,
v.
WALTER HINTON, et al., Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal of nonfinal order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Patti Englander Henning, Judge; L.T. Case No. 07-30358 26.

          William M. Droze of Troutman Sanders LLP, Atlanta, Georgia, and W. Tucker Craig and Jeffery R. Lawley of Billing, Cochran, Lyles, Mauro, Ramsey, P.A., Fort Lauderdale, for appellant.

          Michelle D. Cofiño and Reginald J. Clyne of Quintairos, Prieto, Wood & Boyer, P.A., Miami, and Hunter Shkolnik, Louise R. Caro and Aaron R. Modiano of Napoli Shkolnik, PLLC, Coconut Grove, for appellees.

          PER CURIAM.

         The City of Fort Lauderdale ("the City") appeals two orders denying its motions for summary judgment. The City contends that these are appealable nonfinal orders under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi) because the orders determine, as a matter of law, that the City is not entitled to sovereign immunity. The City raises five points on appeal. We affirm in part and dismiss in part, concluding that some points, which do not involve immunity from suit as a matter of law, are not reviewable under the nonfinal appeal rule.

         Background

         In the underlying case, five members of the Hinton family ("the Hintons") are suing the City for actions and omissions that followed the City's operation of an incinerator before 1953 at the Lincoln Park Complex.[1] The Hintons allege the City caused or allowed ash and other contaminants from the incinerator site to disburse throughout the neighboring community. The Hintons allege that the hazardous substances physically injured them and they have lost use of their property and suffered reduced market value.

         The Lincoln Park Complex and Durrs Neighborhood

         The City-owned Lincoln Park Complex includes three principal parcels: (1) a parcel which has been the site for a trash transfer and recycling station since 1997; (2) a parcel which is currently the site for the City's One Stop Shop for municipal services, and previously was the site of an elementary school until 2005; and (3) a grassy field that includes Lincoln Park. A portion of the first parcel served as a wastewater treatment plant from the 1920s until 1997, and another portion of the first parcel was the site for a municipal waste incinerator from 1936 until 1953 and thereafter a second wastewater treatment facility from 1971 until 1983. The area that is now a public park in the third parcel previously held piles of incinerator ash.

         As to the two portions of the first parcel used as a wastewater treatment plant, the Hintons believe the wastewater treatment may have created high levels of dioxins that were released into the air, groundwater, and soil. The original wastewater treatment plant was demolished in 1997, and the trash transfer station was constructed in its place. Prior to the construction of the trash transfer station, the City had evaluated redevelopment of the incinerator-wastewater treatment plant site and conducted Phase I and Phase II environmental testing of the soil and water. Arsenic, barium, lead, and benzo(a)pyrene were detected in soil samples. The amounts detected allegedly exceeded some residential regulatory thresholds. At that time, the City decided not to redevelop and did not conduct any additional environmental testing or remediate any contamination.

         Several years later, in 2000, the City discussed potential construction of the One Stop Shop at the former elementary school site and ordered Phase II testing for the site. The Florida Department of Environmental Protection ("FDEP") conducted independent testing at the Lincoln Park Complex. Sampling occurred between 2002 and 2003, and the park was closed for remediation activity. In 2003, FDEP allowed the construction to proceed, agreeing that the environmental conditions at the school property should not affect construction of the One Stop Shop. In 2003, the City dewatered the site to install utilities for the One Stop Shop, and contaminated ground water flooded the neighborhood. During a partial remediation and capping of Lincoln Park, piles of contaminated soil were left uncovered for extended periods, including when hurricanes struck the area.

         The Hintons complain that the City did not remediate or notify residents after the 1997 testing revealed contamination. The park was not fenced until 2002, and the City only posted "no trespassing" signs. It did not warn of possible contamination, and children continued to play in the area. Between 2004 and 2006, FDEP collected soil samples in the residential neighborhoods. Polycyclic aromatic hydrocarbons ("PAHs") exceeding State of Florida Soil Cleanup Target Levels ("SCTLs") were detected on one of the Hintons' properties. One sample also showed an arsenic level above residential regulatory thresholds. Sampling of other homeowners' lots detected other contaminants. Residents learned of the contamination from the State around 2005.

         After evaluating soil sample results, the Florida Department of Health issued a report in 2007 concluding that chronic exposure to contamination in the surrounding neighborhoods could create elevated health risks for sensitive subpopulations, like children with developmental disabilities. Because contaminants were at higher concentrations below the surface, there was some indication that incinerator ash may have been used as fill for residential properties and digging in subsurface soils could increase exposure risk. Some contaminants were at concentrations above SCTLs, but the report found low to no apparent increased cancer risk from long term exposure to the highest levels of detected contaminants. Further soil testing was recommended. Residents with ash, glass, or metal pieces in their soil were advised to only grow fruits and vegetables in raised beds with clean soil. The report also concluded that based upon distribution and measured levels, PAHs in the Durrs neighborhood did not appear to be related to the Lincoln Park Complex. But, plaintiffs allege that FDEP reached a different conclusion, finding that the PAHs and arsenic were related to the complex.

         In 2008 and 2009, FDEP worked with the City to address potential impacts on residents. FDEP recommended that surface soil at the incinerator site be remediated to residential SCTLs, covered with backfill, or removed. FDEP also required additional testing of the complex.

         The Hintons allege that contamination was discharged from the complex on multiple occasions, during: (1) operation of the incinerator site; (2) operation of the wastewater treatment and waste transfer site; (3) demolition of the Lincoln Park Elementary School; (4) excavation of the school site during construction of the One Stop Shop; (5) release of ash and contaminated water during construction and remediation; and (6) residential development (if ash was used as fill in the Durrs neighborhood).

         The Hintons further allege that they have ingested, inhaled, and touched contaminants from the soil and ground water through walking, playing, and gardening in the neighborhood or consuming well water or foods grown on their property. The Hintons' oldest daughter died from a rare uterine cancer in 2010, and experts disagree about whether her cancer could have been related to the incinerator site. The Hintons also allege that they have lost uses of their property and that home values have been damaged by the stigma.

         The Hintons' complaint

         The Hintons brought the underlying action in 2007. The operative complaint raises five counts. Count I seeks strict liability damages under section 376.313, Florida Statutes, for discharge of hazardous substances from the Lincoln Park Complex. Count II seeks damages for negligence from failing to warn of a hazardous condition; allowing discharge of contaminated soil; failing to remediate contamination and use reasonable care in remediation; and other breaches that have allegedly caused the Hintons physical injury, emotional distress, and property damage, including lost use and diminished value. Count III asks the court, through permanent injunction, to require the City to fund a court-supervised medical monitoring program. Count IV seeks compensation for inverse condemnation, alleging the discharge of contaminants onto the Hintons' properties constitutes a taking. Count V alleges a violation of substantive due process if the City's actions did not constitute a taking.[2]

         The orders denying ...


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