Summary of a Recent
Judicial Development in
Agriculture and Urbanization

Farmer's Due Process Rights
Violated by County Board

Harrison M. Pittman
Staff Attorney

In an action brought by a farmer challenging a county board's determination that he operated an unauthorized "junkyard" when he maintained a bushhog, a bulldozer, a crane, and other equipment outdoors on his farm, the Florida Court of Appeals for the Fifth District has ruled that the county board violated the farmer's due process rights when it refused to allow the farmer to present certain evidence at his hearing. Kupke v. Orange County, 838 So.2d 598, 599-600.

The plaintiff was a farmer "in an extremely rural area" of Florida, who was cited by the Code Enforcement Board of Orange County ("County Board") for operating "an unauthorized 'junkyard' on his land because he 'stored' a bushhog, a bulldozer, a crane, a backhoe, and various other equipment and materials outdoors at his farm." Id. at 598. At his hearing before the county board, the board refused to allow the plaintiff to present certain testimony regarding his farming operation and the use of the various pieces of equipment in his operation. See id.

The County Board ruled that the plaintiff had thirty days to remove the equipment or pay a $250.00 per-day fine. See id. The plaintiff appealed the county board's decision to circuit court. See id. The circuit court affirmed the county board's decision, stating that it "'provided procedural due process'" and "'observed the essential requirements of law.'" Id. at 599. The plaintiff appealed the circuit court's decision to the Florida Court of Appeals for the Fifth District. See id.

The appeals court noted that although the farmer "addressed the relevant issue, whether the challenged equipment was in fact used for farm purposes, the County's witnesses . . . talked about contamination, fires, snakes, rats, . . . and that the county's inspector "conceded that she was not an expert on agricultural uses." Id. It also noted that these witnesses attempted to prove that the plaintiffs equipment, which was exempted from being a nuisance under Fla. Stat. Ann. § 823.14(4) "if it was used for farming purposes, was in fact a nuisance without first establishing that the equipment was not properly used for farm purposes." Id. Section 823.14(4) provides that a farming operation, subject to exceptions not applicable in this case, "shall not be considered a nuisance." Id.

The court stated that if the plaintiff

had been permitted to present the testimony of . . . farmers familiar with the use of heavy equipment in farming practices, the Board might have found that the bushhog was used to clear land for farming and that the backhoe and bulldozer and perhaps the crane were used to dig and maintain ditches and ponds necessary to or desirable for the farm operation. This denial of an opportunity to present evidence violated . . . [the plaintiff's] due process rights.

Id.

The court also stated that although it must decide whether the circuit court afforded procedural due process to the plaintiff and whether it applied the correct law, it "did not inform us as to which law it used to affirm a decision which denied the . . . [plaintiff] the basic right to be heard before a property right was taken from him." Id. It concluded, however, that "whatever law was applied was misapplied and we therefore grant certiorari, quash the decision of the circuit appellate division, and remand for an order quashing the decision of the Code Enforcement Board and requiring a new hearing" in which the plaintiff "must be given an opportunity to show, if he can, that in fact the challenged equipment has an agricultural use" exempted from a nuisance action under Florida law. See id.

The case was decided on February 7, 2003; this summary was posted May, 2003