5th DCA - prohibition not available in local quasi-judicial action

In what I consider one of the few really bad decisions that I've ever seen from the pen of Judge Sharp, the 5th DCA ruled today that prohibition was generally not available to prevent abuses by local commissions acting quasi-judicially and in particular to deal with the need to recuse commissioners for bias. Instead, the petitioner has to go before the quasi-judicial body, present its bias complaints, and then raise the matter as a due process concern in a later cert petition.

FLORIDA WATER SVCS. CORP. v. ROBINSON, 5D02-2071 (Fla.App. 5 Dist. 2003) Get a copy by clicking : FlaWaterSvcs_v_Robinson.doc


This is not only bad policy, it doesn't track with common-law principles that are well established in Florida. The Court ignored the very clear language in State ex rel Rowlett, 170 So. 311 (Fla 1936), which adopted the following language from Justice Davis' concurrence in State ex rel Williams v Whitman, 156 So. 705 (Fla 1934) holding that prohibition was available as against a quasi-judicial tribunal:

"To the extent, therefore, that an administrative statutory tribunal or agency is vested with statutory power to make decisions having a judicial character or attribute, as distinguished from mere exercise of delegated legislative or executive functions under the law, resort may be had to the courts of the land for the purpose of review, whether any special method of appeal be provided or not, and in such cases the courts of general jurisdiction to whom complaint is addressed against an alleged improvident, erroneous, or unjustified administrative decision shown to divest or impair some vested legal right, unless abrogated or modified, will grant an aggrieved party relief against quasi-judicial decisions of such administrative agencies, by means of those available common-law processes adapted and designed to be used by the courts to restrain excessive or unauthorized exercises of powers on the part of subordinate jurisdictions or quasi-judicial tribunals." And in State, ex rel. Swearingen, v. Railroad Commissioners of Florida, 79 Fla. 526, 84 So. 444, this Court said that the writ of prohibition "lies against any person or persons assuming to exercise judicial or quasi-judicial powers, although not strictly or technically a court." It must also be borne in mind that in Curtis v. Albritton, 101 Fla. 853, 132 So. 677, we said that the writ of prohibition is the counterpart of mandamus in the manner in which it operates, being negative, while mandamus is positive in its commands, and that in the following cases, writs of mandamus against the Respondent Board have been sustained: State, ex rel. Tullidge, v. Hollingsworth, 103 Fla. 801, 138 So. 372; Idem, 108 Fla. 607, 146 So. 660; State, ex rel. Page, v. Hollingsworth, 115 Fla. 851, 156 So. 286; Idem, 117 Fla. 288, 157 So. 887. So that we hold that in cases where the Respondent Board is acting without jurisdiction or is exceeding its jurisdiction in not proceeding in accordance with the essential requirements of law, those common law processes adapted and designed to restrain such lack of jurisdiction or excessive exercise of power, including the remedy by prohibition, are proper. State, ex rel. Crabtree, v. Porter, 111 Fla. 621, 149 So. 610

It is clear from this case and others, such as Greenberg v Bd of Dentistry, 297 So. 2d 628 (Fla 1st DCA 1974) and the famous State v Falls Chase Taxing District424 So.2d 787 (Fla. 1st DCA 1982), that the courts do have and must have plenary power to control the quasi-judicial activities of agencies and local governments. In the absense of a general law creating a local government APA, the courts should use all of these tools to prevent miscarriages of justice, not force litigants into the unfair position of having to bear the risk and expense of multiple arenas of litigation in order to get fair and proper treatment before a local administrative body.

Here are some of those opinions:
ExRelWilliams_v_Whitman.doc

State_exrel_Sbordy_v_Rowlett.doc

Greenberg_v_StBdofDent.doc

I can only hope that the decision of the 5th was made without the benefit of these cases being cited and that the issue here makes its way before the Supreme Court sometime soon.

Temporary takings - damages case

City of Tampa v Redner - bar owner denied a special permit (wet zoning) to sell liquor attacked the decision on both substantive and takings grounds and won the takings case, including damages based on lost lease income.

Second DCA reversed the takings damages, citing Wheeler for the proposition that the right measure was to take the difference in land value with and without zoning and basically give the landowner interest on that amount for the duration of the taking. Also, no attorney fees or other costs.

Bad reasoning. First, as the dissent lays out, the Wheeler case involved raw land that was zoned for apartments, but no apartments built. The court reasoned that it was speculative to try to determine not only whether willing lessors would present, but the amount of the leases. Moreover, the court reasoned that the appraised value of the land would take into account the true value of the income stream and that the "interest rate" would fairly represent the profit to be taken from it. Here, you had a building already developed and lease contracts on the table that simply required the removal of the illegal burden.

More importantly, and not discussed by the majority or the dissent, Wheeler was a US case tried under the 5th amendment. In Florida, our constitution not only give protection against temporary takings, it also provides for full compensation when a taking occurs. So the measure should have included the attorney and appraiser's fees, etc.

Beyond the damages fight, the case demonstrates that if an improper ordinance or regulation destroys all use, you can both attack the regulation as invalid AND get temporary takings damages for the time it was applied.

Tampa_v_Redner.doc

Miami Beach case - Harris Act damages reinstated

The 3d DCA - unsurprisingly - overturned a Circuit Court determination that held that the actions under the Harris Act couldn't be maintained against a municipality under sovereign immunity (actually a clause in the Act that indicated that the Act itself wasn't a waiver of immunity).

Here's a link to the case (Word format) - RoyalWorld_v_MiamiBeach.doc

So now we'll probably have some cases where we find out whether a significant downzoning is a compensable "undue burden" under the Act.

Catching up

It's been a while since I put anything new up and I have quite a few new cases that will follow.

I also hope to get the email list started up, with invitations to lots of folks.

Citrus County Cert case - very interesting

The Fifth DCA in an almost per curiam affirmance upheld a Circuit Court's writ of cert that overturned a decision of the Citrus County Board of County Commissioners on a rezoning and site plan approval that allowed higher density than permitted by the plan.

One interesting element: the Circuit Court had taken the issue up on cert, rather than through a de novo review under 163.3215, even though consistency with the plan was the biggest aspect.

The more interesting element was that the Court found that the BCC violated due process, as well as the planning act, in approving the development. Essentially the court found that the Board had to have pre-judged the issue and/or refused to consider the evidence in front of it - novel and very powerful for folks fighting politically driven decisions, on any side of a fight.

Here's a link to more info on the case.

More info on this in the discussion boards.

Robert

Bar Journal Article on Quasi-Judicial hearings

Sid Ansbacher (former head of the Environmental and Land Use Law Chapter of the Florida Bar) and I wrote an article on how local government should structure decisions to be properly reviewed by certiorari in Florida. It was just printed in the May edition of the Florida Bar Journal - here's a link:
Bar Journal Article

Fla Land Law now running

It took three days of part-time work, but the core functions of the Florida Land Law site are now available. We have a message board, an email-list-server for folk that prefer email for discussion, and the first set of links pages are up. More link pages can be added anytime.

Next steps are to get some "citizen guides" on line. I know that several different organizations and attorneys have put together information about how to deal with quasi-judicial hearings, what the steps in a comprehensive plan amendment are, and similar things.

I'll also start an invitation process next week and try to get some folks I know to visit, sign up for email and the discussion group, and get going.

That's all for a Saturday!

This section will be devoted to reporting and commenting on news, cases, laws or other developments of interest to people working in the area of Florida Land Use Law.