Foreseeable flooding can be tried as demages in a taking of other parts of propery

FDOT takes a parcel for a stormwater pipe.
Landowner claims that based on the engineering, factility will cause flood damage to the remainder.
FDOT - can't bring those damages as part of the taking! Landowner must wait and file inverse condemnation damage claim later, when (if) flooding occurs.
Trial Court - we'll buy FDOT argument.
5th DCA - who are you kidding? Damages to the remainder are cognizable in taking of part. Here's the opinion.

Seems like a basic point to me, but creates some interesting potential res judicata/law of the case problems, regardless of how this is litigated. Issue (for FDOT) is that landowner gets multiple bites: at the condemnation, where LO can try to prove damages from foreseeable future flooding, then (if this doesn't work), later if flooding actually occurs.

"may" language in delegation almost per-se unconstitutional

In the 3d DCA's Omnipoint I opinion, 811 So.2d 767 (3d DCA 2002) , Judge Fletcher determined that Dade County's "unusual use" variance language was unconstitutional based on the subjective criteria provided. That part of the opinion was invalidated by the Florida Supremes in Omnipoint II - 863 So. 2d 165 (Fla. 2003) (3d shouldn't have taken up this argument on its own), and it was not addressed by the 3d on remand.

So the Omnipoint holding on the vagueness issue is largely a footnote, since the court didn't have the right to reach it. A number of folks have questioned it, given other decisions on the vagueness issue that permitted, well, really really subjective and vague delegations, even in a quasi-judicial context. In particular, in the land use context, we have Life Concepts v Harden, 562 So. 2d 726 (Fla. 5th DCA 1990), Alachua v. Eagle's Nest, and the most recent Cap's on the Water Inc. v St John's County, 847 So.2d 507 (Fla. 5th DCA 1993).

The last case rejected a vagueness challenge involving a conditional use/special exception against a completely standardless delegation to grant special uses. The core delegation provided and the lower court opined:

Specifically, section 2.03.01- A, entitled "Limitations on Special Uses," provides: The Planning and Zoning Agency may adopt conditions on any Special Use approval; any such conditions shall be stated in the final order of the Planning and Zoning Agency granting the Special Use. The ordinance places no limits on the discretion of the Planning and Zoning Agency (the "PZA") to adopt conditions for the special use approval. Read alone, this provision would not pass constitutional muster because the PZA could arbitrarily impose on any applicant any condition that it chose to impose.

The District Court went to the intent section, and upheld the ordinance based on this DEFINITION of the special use:

Special Use: Means a Use that would not be appropriate generally or without restriction throughout a zoning division or district but which if controlled as to number, area, location, or in relation to the neighborhood, would promote the
public health, safety, welfare, morals, order, comfort, convenience, appearance, prosperity, or the general welfare. Such Uses may be permissible in a zoning classification or district upon the granting of a Special Use and meeting the requirements of this Code.

The court cited Life Concepts as approving this kind of approach and language. So the Omnipoint I decision ran contrary to the trend (however wrong the trend may be).

In the last couple of months, however, two decisions may re-establish the vagueness doctrine as a meaningful requirement of delegatory ordinances.

The first is the Florida Supreme Court's decision in Bush v Schiavo, issued Sept 23. and available here. The decision has one of the best overall reviews of the entire vagueness doctrine and the separation of powers you'll ever read. It then agrees with the circuit court's determination that the statute unconstitutionally vested legislative power with the Governor:

In this case, the circuit court found that chapter 2003-418 contains no
guidelines or standards that “would serve to limit the Governor from exercising
completely unrestricted discretion in applying the law to” those who fall within
its terms. The circuit court explained:

The terms of the Act affirmatively confirm the discretionary power
conferred upon the Governor. He is given the “authority to issue a one-time stay
to prevent the withholding of nutrition and hydration from a patient” under
certain circumstances but, he is not required to do so. Likewise, the act provides that the Governor “may lift the stay authorized under this act at any time. The Governor may revoke the stay upon a finding that a change in the condition of the patient warrants revocation.” (Emphasis added). In both instances there is nothing to provide the Governor with any direction or guidelines for the exercise of this delegated authority. The Act does not suggest what constitutes “a change in condition of the patient” that could “warrant revocation.” Even when such an undefined “change” occurs, the Governor is not compelled to act. The Act confers upon the Governor the unfettered discretion to determine what the terms of the Act mean and when, or if, he may act under it.

We agree with this analysis. In enacting chapter 2003-418, the
Legislature failed to provide any standards by which the Governor should
determine whether, in any given case, a stay should be issued and how long a
stay should remain in effect. Further, the Legislature has failed to provide any
criteria for lifting the stay. This absolute, unfettered discretion to decide whether to issue and then when to lift a stay makes the Governor’s decision virtually unreviewable.

A few weeks later, in this opinion in Dep't of State v. Martin, the 1st DCA struck s. 101.253(2) of the elections act, under which the Secretary of State had refused to remove a candidate's name from the ballot when the candidate withdrew in favor of another. The critical provision states "The Department of State may in its discretion allow such a candidate to withdraw . . . " The Circuit Court found that this was improper and the 1st DCA agreed.

Both opinions cited the following language from Lewis v. Bank of Pasco County, 346 SO. 2d 53, 55 (Fla. 1977):

The legal principle guiding the Circuit Judge in this case and which is
dispositive of the issue under consideration is so well knows as to be deemed
"hornbook" law. This Court has held in a long and unvaried line of cases
that statutes granting power to administrative agencies must clearly announce
adequate standards to guide the agencies in the execution of the powers
delegated. The statute must so clearly define the power delegated that the
administrative agency is precluded from acting through whim, showing favoritism,
or exercising unbridled discretion.

Under these decisions, local ordinances which provide that a local actor or board "may" grant variances or other permits if criteria are met are flat-out invalid. Either they must be interpreted as requiring the action or the entire provision must be struck. Clearly, the language upheld in Cap's doesn't meet this test, and the earlier decisions in Life Concepts and Eagle's Nest should be viewed as having been over-ruled by implication.

Moreover, the recent decisions in Schiavo and Martin should revive the entire notion of and demand for clear and unambiguous standards in land use ordinances. Here are some particular targets:

• Special use/condition use or variance procedures like the ones at issue in Omnipoint and Caps. Where the standards are "in the public interest" or "excessively burden," etc., the ordinances should be struck.
• Comprehensive plan provisions like Goals providing for "gradual and orderly growth" or the similar language that was upheld as a basis for denying a permit in the Eagles Nest case. This is a particular problem today because of the courts' liberal quotation of the Machado decision to apply all of the goals, objectives and policies of a local comprehensive plan to a development order, regardless of how vague (people forget that Machado dealt with review of a legislative rezoning rather than and administrative/quasi-judicial action).

So maybe Judge Fletcher had the right analysis of the ordinance in Omnipoint - but in the wrong case.

Dedication stating: "60 FT EASEMENT RESERVED FOR FUTURE ROAD" is ambiguous!

Every once in a while, you get the feeling that there MUST be more going on than meets the eye. But in an opinion reviewing a grant of summary judgment, that's usually not the case.

In this opinion, released last week, the 5th DCA ruled that the words "reserved for future road" on a street easement depicted plat are ambiguous as to whether the easement so indicated was intended for public dedication in a plat that dedicated all easements in the plat to the public. It held that a trial court improperly granted summary judgment in favor of Orange County in an inverse condemnation case claiming a right to compensation when the County actually used the reserved easement for expanding a road.

Let's get this right: it's not the developer claiming a taking under Dolan or Lucas . It's later landowners, who bought with title commitments indicating that the easements were burdens on the property claiming that there were, in fact, no easements for road purposes granted by the plat and accepted by the County.

OK, so just noting "street easement" would have been more clear - though I'm guessing that the surveyor/engineer described it as "reserved for future" to show that the developer wasn't being required to improve the street prior to dedication and acceptance. But I don't see the language as ambiguous.

And let's be clear - an area on a plat marked "easement reserved for future road" on a plat that dedicated all the easements to the public doesn't create any anticipation that it would only be used for a private road, or that it wouldn't be and wasn't accepted as part of the general acceptance under any of the dedication/acceptance cases that I've ever read.

There's some discussion that the term "reserved" might have been to keep a reverter - but the court rejected that interpretation. So if the easement wasn't to revert if not used, and it was accepted, where's the ambiguity?

There may be more to what's going on than what's in the opinion, but I simply fail to see what possible factual scenario could call the clear legal implication of these words into question; certainly none of the facts related in the opinion. I think the dissent in this case got it right.

What's more, I suspect that this opinion will trigger a whole spate of really obnoxious levels of review of plats by the legal departments of local governments, slowing up and adding unnecessary expense to what's already a process burdened down by many technicalities.

PRACTICE TIP: for all of use who review and/or prepare plats, be sure that not only is the dedication and acceptance language clear, but mark all areas to be dedicated clearly as easements/dedications along with the purpose - and avoid surplussage if at all possible.

Whoops - 4th Changes its mind - city can sell property without required referendum

Several months ago, I posted a reference to a decision in which the 4th DCA overturned an action by the City of Pompano Beach. A charter provision protected recreationally designated lands from sale without a referendum. The city had circumvented the charter provision by redesignating recreational land by ordinance and then selling it without a referendum.

In its original decision, the 4th held that the intent of the charter was paramount, and allowing the commission to go around it by simply changing the designation was inconsistent with the intent of the charter.

The City asked for reconsderation and in this opinion, released on the 17th, the 4th changed its mind. The logic: the Court read the fact that there was another way to sell non-designated lands, and "read together" the provisions to make the referendum optional at the hands of the City Commission. The new decision holds:

We are not persuaded by the appellant that llowing the City to redesignate and
then transfer this property makes the referendum requirement eaningless. The
drafters of the charter may well have intended to give the City two methods for
disposing of section 253(f) property, depending on the circumstances. For
example, if the City owned a golf course which it wanted to sell, but knew that
the issue would be controversial, it would have the option of submitting the
issue to an election. On the other hand, if the City owned a small parcel
which had been designated a recreational facility, but was no longer being used,
and the disposition of it was not controversial, the City would have the option
of not going to the expense and delay involved in an election. This
interpretation gives effect to both provisions

The problem with this analysis is that the City Commission ALWAYS has the power and discretion to put one of its acts before the citizens in a referendum. The court's revised interpretation makes the referendum process suplussage and completely up to the discretion of the Commission. The ONLY reason for the referendum requirement was to limit the City Commission's authority to sell designated properties.

The court had it right in the first opinion, where it held:

We are unable to reconcile the City’s position, which is that it can avoid
the charter requirement of a referendum, by merely redesignating and then
transferring, with several statutory construction principles. First, the court
should consider the legislative intent. St. Mary’s Hosp. v. Phillipe, 769 So. 2d
961 (Fla. 2000). The obvious intent of section 253(f) is to require a referendum
for the transfer of this property.

Second, courts should avoid interpretations which render parts of a statute meaningless. Unruh v. State, 669 So. 2d 242 (Fla. 1996). In this case the City’s interpretation makes section 253(f) meaningless.

Third, courts are obliged to harmonize conflicting provisions if it is possible to do so. M.W. v. Davis, 756 So. 2d 90 (Fla. 2000). The two provisions can be harmonized, and both given effect, by holding that property described in section 253(f) cannot have its designation changed by resolution in order to transfer the property without a referendum. That would give meaning to the provision requiring a referendum for section 253(f) property, but would not make the provision allowing change in designation by resolution meaningless. See Kiesel v. Graham, 388 So. 2d 594 (Fla. 1st DCA 1980).

We therefore conclude that the charter does not authorize the city to
avoid the referendum process for property described in section 253(f) by merely
redesignating the property for the purpose of transferring it. The summary
judgment is accordingly reversed.

One can only assume that the pro-se representation by the plaintiff/appellant in this case finally fell to the superior firepower of Holland & Knight and Susan DeLegal (no slam on them). But the result is a win for the unfettered discretion of local legislatures even in in the face of charter provisions clearly intended to limit that discretion. One loss for efforts to restrain the unfettered and often unidisciplined actions of local governments.

UPDATED: DRI DO vesting under 163.3167(8) limited by 1st DCA; comp plan consistency applies to "sub-substantial" deviations

I was bemoaning the paucity of new land uses cases to post the other day. Just in time for the holiday season, the 1st DCA released this opinion on Monday, which holds that DRI's are not vested against the application of the local comprehensive plan for changes in the Development Order, even when those changes do not reach the scope of a "substantial deviation."

The specific situation (which will almost certainly cause litigation over whether the opinion means what it says) was that a developer proposed a change in a longstanding but continually devleoping DRI development order. The change would have altered the use of several parcels, adding 66 units and allowing a higher high-rise that was approved in the DO.

The RC and DCA found that the changes did not qualify as a substantial deviation. The developer applied for a NOA to change the DO with the County Commission, which denied it. This threw the issue to the gov and cabinet sitting as FLWAC, who denied the change, based on its inconsistency with elements of the comprehensive plan (not on the basis that it was, in fact, a substantial deviation).

The 1st DCA entered an en banc opinon (with dissents) to bind the entire panel. Here's the key holding:

Once a DRI has been approved, the right to develop pursuant to the terms of the DRI vests. See § 163.3167(8), Fla. Stat. (2001). Vesting means development rights obtained through a previously approved DRI are not lost by subsequent changes in the law. It does not, and cannot, create entitlement to greater rights than those originally obtained.

Accordingly, a proposed change jeopardizes vested rights because, by definition, the change seeks different development rights than those development rights originally approved

While the facts here involve a decision on an NOA by FLWAC, the language here is stark: it says, essentially, that any change to a DRI DO does not enjoy the statutory vesting against the provisions of Chapter 163. This means that they are subject to challenge under s. 163.3215 for consistency with the Plan. That is a BIG deal.

While the 1st's en banc opinion pretty much ensures that this will apply to most administrative reviews of DRI issues, it remains to be seen whether other District Courts will apply it to DRI changes within their jurisdictions, and it seems a good bet that someone will disagree and the issue will eventually wend its way to the Supremes. In the meantime, I suspect that we'll see a bill in the next legislature to "fix" this.

------------------------------------------------------
PS - I got an email from a friend who took the above as being critical of the opinion. I'm not - I think that it's consistent with the clear and limited language of the vesting provision, not to mention the basic point that such exemptions should be strictly construed. It's consistent with the thinking of a lot of folks I know, but it never was clearly litigated - and the Edgewater case threw the whole matter into doubt.

I am surprised that this had to come up in such a sideways fashion rather than head on in a 163.3215 challenge to a local government action on a DO; especially since 3d parties have been excluded from challenging those DO's through the administrative process of 380.07. That section does not make the 380.07 challenge the sole remedy to address the adoption of a DRI development order, so if the DO doens't have the vested exemption, it seems to me to be fair game under 3215. But it appears that (other than Edgewater) no-one's done it.

Notice and a hearing does not a quasi-judicial proceeding make

In this opinion involving a bid challenge, the 3d DCA demonstrated that rigorous analysis of the nature of delegated authority sometimes prevails, even in the post-Snyder era of slipshod "functional analsysis."

The court held that a decision on a bid challenge was not quasi-judicial and reviewable by certiorari simply because the process provided for a noticed hearing by a hearing examiner prior to a final decision by the Board of County Commissioners. Instead, the court found that the decision was an "executive" administrative decision, challengable in a de novo action. It therefore found that the Appellate Division of the 11th Circuit was correct in transferring the matter to the civil division for trial.

While the court did not lay out the complete rationale (citing to other cases), it is clear from the context that the decision is executive because the decison of the Board is not based on the evidence produced at the special master hearing, but is effectively de novo based on the evidence, argument, and the County Manager's recommendation. The guiding ordinance does not meet the tests laid out in DeGroot v Sheffield and Bloomfield v Mayo for a delegated quasi-judicial proceeding.

A victory for clear thinking and vigorous analysis.

Temporary moratorium on approvals doesn't violate due process/not a taking

In this opinion, released on September 29, the 4th DCA held that a nine month moratorium placed on approvals of multi-family developments while a review of the comprehensive plan and land development regulations did not violate substantive due process and wasn't a taking.

On the due process end, the court held that there was a substantial nexus between the moratorium and the permissible public purpose of maintaining the status quo, agreeing with the trial court when it determined that "the temporary moratorium was an important land-use planning tool . . . to ensure that the community's problems were not exacerbated during the time it takes to formulate a regulatory scheme."

On the takings issue, the court predictably (but without much analysis) relied on Tahoe-Sierra Pres. Council v. Tahoe Regional Planning Council, 535 U.S. 302 (2002) for the proposition that temporary moratoria do not constitute a taking.

The covenent can be mightier than the LDR

In this case, released in late August, the 2d DCA reminds us that covenants restricting use are enforceable as long as they benefit the rest of the properties, even if conditions change.

Citing an earlier case, the court provided this standard for when a property can be relieved of the burdens of a covenant:

in Essenson v. Polo Club Associates, 688 So. 2d 981, 984 (Fla. 2d DCA
1997), this court held that the party seeking to be relieved of the deed restriction
hadfailed to carry its burden of proof by showing that "the change occurred,
(1) after theagreement, (2) without any fault on its part, and (3) that the
change destroyed all valueof the covenant," in spite of the fact that the
plaintiff demonstrated changed circumstances resulting from a rezoning
affecting its property.

The court found that even though the property in question here fronted a major street and had been rezoned to support the medical office desired by the new owner, the covenant still had benefits for the other owners in the subdivision.

Fla S Ct: Fla Religious Freedom Restoration Act broadens protection - many zoning restrictions probably improper

In this opinion handed down on Thursday, the Florida Supreme Court analyzed the requirements of the Florida Restoration of Religious Freedom Act to hold that facially neutral regulations that either prohibit an activity required by a religious belief or require an action prohibited by religious belief are subject to a "compelling state interest" and "least restrictive means" test.

In the process, it clearly indicated its belief that zoning regulations that require special exceptions for the location of churches - and by implication, regulations against holding religious services in homes or other places - are subject to strict scrutiny under the Act. Wake up folks - this Act provides for positive suit against government actions AND attorney's fees against the government for successful litigants.

As is so often the case, this relatively landmark decision came up under rather ridiculous facts: a challenge to a Boca Raton ordinance governing the municipal cemetery that prohibited vertical headstones and other markers. Yes, a group of people claimed that a restriction on placing crosses upright rather than horizontal was a substantial burden on their exercise.

The Court ultimately rejected that claim, but it first both interpreted the requirements of the Act and established the test for a "substantial burden."

With regard to the bringing and trying of claims:

As noted above, the Act specifically mandates that the strict-scrutiny standard be applied irrespective of whether or not the burden results from a rule of general applicability. See § 761.03, Fla. Stat. (2003). Under the test articulated by the FRFRA, the plaintiff bears the initial burden of showing that a regulation constitutes a substantial burden on his or her free exercise of religion. See § 761.03(1), Fla. Stat. (2003). Once that threshold determination has been made, the government bears the burden of establishing that the regulation furthers a compelling governmental interest and is the least restrictive means of furthering that interest. See § 761.03(1)(a)-(b), Fla. Stat. (2003). Thus, the plaintiffs must demonstrate that the government has placed a substantial burden on a practice motivated by a sincere religious belief. See, e.g., Weir v. Nix, 890 F. Supp. 769, 783 (S.D. Iowa 1995). The Southern District specifically noted: "It is undisputed that the plaintiffs placed vertical decorations on their [c]cemetary plots in observance of sincerely held religious beliefs." Warner, 64 F. Supp. 2d at 1277.10 show that collection and payment of taxes violated church?s sincerely held beliefs); Bob Jones Univ. v. United States, 461 U.S. 574, 603 n.8 (1983) (noting evidentiary record which showed that the challenged practices of the university were based on a genuine belief that the Bible forbids interracial dating and marriage); Wisconsin v. Yoder, 406 U.S. 205, 215-19 (1972) (examining the record, testimony of expert witnesses, and religious texts to determine whether compulsory education violated the Amish right to free exercise of religion). Since appellants have demonstrated that their religious beliefs are sincere, the next issue is whether the government's regulation constitutes a substantial burden on the free exercise of religion.

The Court had (first, in this case) articulated the test for a "substantial burden":

Thus, we hold that a substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires. See Mack, 80 F. 3d at 1178. We acknowledge that our adoption of this definition may occasionally place courts in the position of having to determine whether a particular religious practice is obligatory or forbidden. However, we conclude that this inquiry is preferable to one that requires the Court to question the centrality of a particular religious belief or negates the legislative requirement that only conduct that is substantially burdened be protected by strict scrutiny.

The Court then analyzed the regulation and found that while the laying of religious symbols was protected religious belief, restrictions on the orientation did not substantially burden it and that the specific regulation was not subject to strict scrutiny, or the compelling state interest/least restrictive means test.

But, in a critical footnote, the Court indicated that regulations that restrict religiously motivated activities - including the location of churches - must be subject at least to analysis under the tests laid out in this case. The critical language is in this footnote:

11. Both the Third and Fourth District Courts of Appeal have considered the FRFRA. In First Baptist Church v. Miami-Dade County, 768 So. 2d 1114 (Fla. 3d DCA 2000), the Third District considered whether the county's decision to deny the church's request for a zoning special exception violated the FRFRA. The Third District found that the county did not have the burden of showing it had a compelling interest in denying the church's zoning request. The Third District, relying on United States Supreme Court precedent, reasoned that neutral laws of general application were not required to be justified by a compelling governmental interest. Since the regulation at issue regulated only conduct and was entirely secular in purpose and effect, the Third District held that the zoning board' decision did not violate the FRFRA. Id. at 1118.
Similarly, in Abbott v. City of Fort Lauderdale, 783 So. 2d 1213 (Fla. 4th DCA 2001), the petitioner argued that the city's denial of a permit to conduct a feeding program for the homeless violated his rights under the FRFRA. However, the Fourth District accepted the trial court's findings that the city's rule infringed upon the petitioner's religious rights; thus, it required the city to show that it had a compelling interest in selecting an alternate site. Accordingly, the Fourth District remanded the case for the trial court to determine whether the alternate site selected by the city represented the least intrusive means of furthering the government's compelling interest. Id. at 1215.
We note that the Third District?s analysis in First Baptist is inconsistent with our opinion in the instant case. Accordingly, we disapprove the opinion in First Baptist.

The Court is holding that the "neutrality" of the zoning law doesn't get it past the FRFRA - and by implication that such a restriction might substantially burden religious exercise.

Here are some predictions:

1) Any restrictions on meeting and conducting services in the home of a religious adherent will be struck. This is particularly important to orthodox Jews, who have been the subject of a number of actions to prevent exactly this kind of service. I'm betting that any home legitimately used as a residence will also be permitted to be used for services without being zoned as a church.

2) Zoning ordinances that prohibit churches in residential districts and special exception ordinances that are used to limit or prohibit the location of churches in residential areas are going to be struck as substantial burdens. Special permit/use regulations that require structures used primarily for churches or church purposes to meet "standard" types of zoning requirements (height, setbacks, parking) will be held not to substantially burden exercise.

3) We're going to see inconclusive and contradictory results in two major areas: the use of church buildings for other religiously related purposes (schools, etc.), and limitations on the height and use of minerets at mosques. I would guess that most restrictions on non-ceremonial use will be found not to substantially burden religious exercise, but that some folks are going to win on the ability to have schools in church buildings. I also guess that mosques will win the right to use humans in minarets to call the faithful to prayer, but not recordings or amplifiers. I also bet we're going to see wildly erratic decisions on the question of whether on-street parking restrictions can be used to keep people from parking at other people's homes to attend services.

4) Finally, I predict that most local governments will flaunt this ruling and won't review their zoning codes and modify them appropriately. They will continue to apply zoning restrictions that are understood to be substantial burdens and will make religious adherents fight over the application of this decision. Given the way that local governments have completely ignored the clear prohibition against discriminatory regulations against modular and manufactured housing, we can expect no greater respect for the rule of law in this case.

Here's looking for new and fun litigation!

Robert

Charters trump ordinances and must be implemented to achieve their intent.

It's always an interesting dance to see how local governments try to manage pesky constitutional, statutory or charter provisions that limit their discretion.

Last week, the 4th DCA released this opinion , which held that the City of Pompano Beach couldn't get around a charter requirement to hold a referendum before selling lands with certain uses simply by reclassifying the land via an ordinance. The Charter required a referendum, but provided that the initial classification of property would be by ordinance. The City wanted to sell a beach parking lot that had been classified as recreational (and covered by the referendum requirement) to the redevelopment authority. It didn't want to hold the referendum. So it adopted an ordianance redesignating the beach parking lot out of the recreational designation. The court took the common sense approach that the City's action would have completely negated the purpose of the Charter provision and held that the once designated (even if by ordinance), the Charter prohibitted redesignation for the purpose of avoiding the Charter.

Local powers, code enforcement and "non conforming uses"

In the aftermath of the Rollins v. Key West case, which established that rental status could end up a non-conforming use that couldn't be extinguished by a change in zoning, here's a case that shows the limits of that reasoning: you don't get rights to maintain a nuisance, even a legislatively defined nuisance.

In this opinion, issued last week, the 3d DCA determined that a dog owner didn't have any vested right to keep four dogs after the Town adopted an ordinance that prohibitted him from keeping more than two. The case involves a challenge to an injunction forbidding the Appellant to keep more than 2 dogs, and appears to be (but we don't get it from the opinion) founded on code enforcement actions.

The dog lover first cited a provision of the Town code that prevented the Town from making illegal anything that was legal when the code was adopted - the court cut this off by finding that the provision only applied to the original adoption of the code (circa 1947).

But here's the more important part of the case - the constitutional challenge:

Welsh argues that ordinances or laws which take away existing rights are substantive rather than procedural in nature and cannot be applied retroactively. See Serna v. Milanese, Inc., 643 So. 2d 36, 38 (Fla. 3d DCA 1994); Winston Towers Ass’n, Inc. v. Saverio, 360 So. 2d 470 (Fla. 3d DCA 1978). Although this is a correct statement of law, we conclude that it is inapplicable in the context of legislation enacted pursuant to a government’s police power for the health and welfare of the
general populace to abate a nuisance. Indeed, the cases relied upon by Welsh were not even decided in this context. See Serna v. Milanese, 643 So. 2d at 37 (considering whether section 673.4021, Florida Statutes (1993), which absolved corporate
officers from liability for signing corporate checks, could be retroactively applied), Serna v. Arde Apparel, Inc., 657 So. 2d 966 (Fla. 3d DCA 1995) (same); Winston Towers, 360 So. 2d at 470-71 (finding amendment to private condominium ssociation’s bylaws banning all pets, including any pet acquired as a replacement of a prior pet not registered as of a date one year prior to amendment, to be void as an ttempt to impose a retroactive regulation). For this reason, Welsh’s reliance upon
these decisions is misplaced.

In Knowles v. Central Allapattae Properties, the Florida Supreme Court expressly reaffirmed the principle that although constitutional rights may not be transgressed by the sovereign, the possession and enjoyment of all rights are subject to the
paramount police power of the state to do that which is necessary to
secure the comfort, health, welfare, safety, and prosperity of the people:

It is a well settled rule that all property is held subject to the right of the
State to regulate it under the police power in order to secure safety, public welfare, health, peace, public convenience and general prosperity. The rule is based upon the concept that all property is held on the implied condition or obligation that its use shall not be injurious to the equal rights of others to the use and benefits of their own property. The public interest is paramount to property rights. The right of the State to regulate a business which may become unlawful is a continuing one, and a business lawful today may, in the future, because of changed conditions, the growth of population, or other causes, become a menace to the safety and public welfare, and the continuance thereof must yield to the public good. Knowles, 198 So. at 823 (citations omitted).

While property rights hardliners will gnash their teeth at the language, it's a pretty longstanding rule of law. On the other hand, while given the special issues of dogs and the cited history of regulation of keeping them provides a substantial basis for the legislative determination in this case that keeping more than 2 dogs is a nuisance, I do worry that the court's limited inquiry into the factual basis of the determination leaves way too much potential discretion for local governments to adopt completely arbitrary regulation by simply stating that the purpose is to regulate a nuisance.

Secret deliberations after hearings violate the Sunshine Law

A couple of months ago I linked an opinion in which the 4th DCA found that the way that Palm Beach County handled an employment termination decision violated Sunshine.

The basic facts appear to be that a "hearing" before a designee of the County Administrator was held, with a number of other department heads, etc., in advisory roles who could participate. After the hearing, the employee and the employee's attorney were forced to leave the room while the decision was deliberated.

This violated the Sunshine Law because in the hearing context, the group functioned as a committee for participation and deliberation, even if the authority was vested in the single person of the delegee.

On motion for rehearing, the 4th released this opinion re-affirming the result and bolstering it against the County's complaint that the decision made any private consultation between a decision maker and staff subject to Sunshine.


The lesson: committees with authority can be created by practice, and government officials should beware of using artifice and "hide the ball" games to try to cloak their actions from scrutiny. It should be obvious that the Palm Beach County procedure was to create a star-chamber, where a group of "judges" would sit on an employee's fate, without the procedural and other safeguards that should attend such a proceeding.

If the administrator or her designee needs the "advice" of other department heads over an employment action, she has several options: she can pass around a summary and ask for a memo; she can have the head testify and be cross examined by the employee's attorney, or she can make the person a "hearing officer" to hear the testimony and render an opinion. What she can't do is play a game where a "fair" hearing is held based on closed-door deliberations in which there is a pretense that the person isn't really part of the decision making process [and let's just laugh in advance of any claim that because judges can confer behind closed doors, these folks should be have the same privilege].

Important 1983 case involving code enforcement

The Fifth DCA just issued this opinion overturning a circuit court dismissal (with prejudice) of a s. 1983 claim and declaratory actions against key components of chapter 162 - code enforcement.

Most practitioners I know think that the statute is a procedural mess. In particular, the statute allows the code enforcement board or a special master to impose fines in an un-noticed hearing, based only on a code enforcement officer's affidavit, after the "violation hearing" has been held and the time for correction has run. Essentially, this gives the "violator" no fair chance to contest the code enforcement official's opinion as to whether actions (if any) taken to correct the violation have been adequate. It also allows the CEB/SM to enter required findings without any means to challenge them.

The 2d DCA found that the statutory provisions violated due process last year in the Massey case, but determined that if local governments provided some kind of notice and hearing before levying the fines, the statute could be saved.

Other problematic provisions of the statute include the "running fine" provision - which allows the CEB/SM to levy "prospective fines" on a daily basis until the property comes into compliance. While it may be acceptable for a "violator" to be found LIABLE for fines until compliance is determined, the burden of proof to demonstrate that the property in fact was in violation on a particular day must remain with the government.

This case is attacking the root problem facially - it will be interesting to see what happens. The 5th rejected several defenses raised by the county and accepted by the circuit court:

1) it rejected the defense that the Plaintiffs' "bald claims" of a constitutional violation were insufficient to establish a 1983 case - essentially you have a government actor (county), acting under color of state law (ch 162 and the local ordinance), and a deprivation of property (the fines) and that's enough;

2) it rejected Orange County's "Matthews test" defense - where the County (straightfaced) argued that the risk of erroneous deprivation was small because the code enforcement officers are "trained" and because some kind of appeal is available and it also rejected the claim that holding a hearing to establish the fines would be unduly burdensome (citing Massey);

3) In the most important aspect for other litigation (the earlier points were pretty obvious, despite the circuit court buying into them), it also rejected the claims that failure to exhaust and res judicata prevent the claim from being brought collaterally. The County claimed that the availability of appeal meant that these claims had to be litigated through the administrative process - the court rejected this under a key haven analysis (option to go either way) and noted that facial constitutional challenges can be brought through dec. actions. In the related argument, it also rejected the claim that the plaintiffs were cut off by res judicata because they COULD have brought the action in the administrative proceeding and appeal. The court, citing Albrecht, held that because there are different elements to the causes - e.g. different facts need to be proved for the constitutional challenges than for the code enforcement action - res judicata didn't bar the collateral proceeding.

WOW - this addresses one of my big concerns after Omnipoint - that the courts would hold on one hand you would be obliged to raise constitutional issues as an affirmative defense (to avoid res judicata issues), but that on the other you wouldn't be allowed to try them (because the admin proceeding/officer can't determine constitutional issues). This case clearly holds that you can attack the facial and even as applied aspects of a statute that has been applied to you outside the narrow parameters of the process provided.

The other way to look at this is that McKinney v Pate's determination that you only get the process given by the statute doesn't hold where the statutory process creates a deprivation of property not created clearly by the statute itself. I'm sure we'll have more on this later :)

Anyway - big case, big implications for code enforcement and constitutional challenges to local administrative ordinances.

A different standing issue - the Polk County injunction controversy

There's been a fair amount of buzz around this article from the Ledger about the circuit court issuing an injunction to stop the County Commission from hearing a landfill issue. Here, as a famous radio commentator might say, is the rest of the story (from David Smolker, the landowner's attorney).

Turns out that the Polk County Code puts hearing and decision authority over some development orders with the Planning Commission. It allows affected parties to appeal to the County Commission. The provision is for a record-based appeal (not a de novo hearing); the only remedy provided by the local ordinance is remand to the Planning Commission . So the ordinance is creating a very limited role for the County Commission and clearly intends this to be an appellate remedy. It also provides for what amounts to motion practice in local administrative matters.

So the landfill folks show up at the Planning Commission, make their case, and get approved. A number of local residents appear to voice complaints; the person who later files an appeal does not. Apparently most of the complaining "neighbors" live at least a mile away from the site.

In any case, the Planning Commission approved the DO. Then, the "neighbor" appealed. Landowners filed a motion to dismiss the appeal for lack of standing on the basis that the appellant had not established any basis for which she was adversely affected on the record. The County Commission schedules a hearing on the motion and the entire opposition shows up. The appellant pleads the usual stuff, and despite the ordinance, the County Commission votes to deny the motion and indicates that its not only going to schedule the appeal, it's going to hear new evidence.

Landowners file in court asking to for an injunction against the hearing. They file a complete record with the suit, so the court could have reformed the action into either a petition for cert or for prohibition. The essence of the matter is that the County Commission is violating the ordinance and if it holds the "appeal hearing" that it intends, the landowners' will be prejudiced, not to mention forced to spend thousands of dollars again on experts, etc. The Court agrees that no reasonable interpretation of the ordinance allows the Commission to hold a new de novo hearing on the matter and that the appellant doesn't have standing to appeal based on the record, so it issues the injunction.

I think this is a pretty reasonable result, with one caveat. Unlike the comp plan challenge cases, there isn't some (new) "shifting burden" of standing - though the Planning Commission clearly hears all comers. However, I believe that as a matter of course, bodies who are holding quasi-judicial hearings should have clear and easy to use guidelines for citizens who appear before them to help them properly present testimony and preserve their rights.

In the 120/APA setting, most folks are represented by attorneys, but in local practice, that's not the case. We can argue all day and night as to whether appearance for another in a qj setting is the unlicensed practice of law (I think it should be, but I'm prejudiced on this by seeing how many zoning/SE proceedings have been mangled by non-attorneys), but today it is permitted. And pro se representation is permitted in any case.

One of the reasons I strongly believe that we need a statewide, uniform local government procedures act is that we could have meaningful guidelines and training for citizens who appear in these settings. Such an approach would make the kind of imbroglio we're seeing here much less likely.

4th DCA - stipulation to standing doesn't get you to appeal in plan challenge

In this opinion, released yesterday, the 4th DCA not only reiterated its opinion in O'Connell that the petitioner (same parties, different amendment) standing to appeal the amendment to DCA didn't guarantee them appellate standing, but addressed the "stipulation" issue.

Here's the language:

Appellants argue in the alternative that the appellees, by stipulating to their
standing at the administrative level, were either stipulating to standing to
appeal or waived the issue. Our reading of the transcript, however, leads us to
conclude that the defendants were only stipulating to standing at the trial
level. In the discussion, counsel for appellants referred to the standing as
being under Chapter 163, and opposing counsel agreed there was standing ?for
this venue.?

Accordingly, as we did in O?Connell, we dismiss the appeal.

While you can argue that the Plaintiffs fell into an obvious trap (and a few folks that I respect have made that argument to me), I think it's bad law for the DCA not to remand to allow them to add the evidence needed to establish their appellate standing. As I stated before, this approach force Plaintiffs to litigate issues in the administrative forum (the impacts of the development and of losing) that aren't necessary and therefore which could be excluded for relevancy.

That result - while logical under the circumstance - would violate due process. The plaintiffs MIGHT have had constitutional level standing to challenge the plan amendment, but under the Act, they're forced to litigate the issue in an administrative forum. Fair enough. But due process requires that litigants in an administrative forum have at least one meaningful avenue of judicial review. The 120.68 standing provision is probably OK constitutionally in most circumstances - you have to show some standing and affected interest to have a right to due process. But if you're forced to litigate in an administrative setting and don't have a fair opportunity to demonstrate standing for getting judicial review, you've been denied due process AND access to the courts.

In the meantime, if you're involved in a comp plan challenge, don't just allege statutory standing, go full out and allege "substantially affected" status. I think you still can take advantage of the general "zone of interest" decisions, but plead all kinds of impacts on those interests. Throw in the kitchen sink and make the local government either stipulate that your mother's going to be killed in a car wreck, run out of drinking water, or have her sewer pipes back up if the amendment is passed (as appropriate) or threaten them with three days of your clients testifying as to the horrors of the resulting unchecked growth and environmental damage.

And if you're in Palm Beach County, I guess I wouldn't trust any stipulation on standing that the local government makes - put on your proof and make sure it's in the record.

To support a contempt enforcement, orders must be clear

This opinion from the 2d DCA reminds us that court orders must be clear before they can be enforced by contempt.

How clear?

Having read a bunch of these cases, I think that the duties or prohibitions have to be almost but not quite as clear as those needed to support mandamus - e.g. clear, directive shall or shall not language with clear, plain language of what should or should not be done. (though don't have a really good case for the proposition - if someone else does, please share).

Why is this important? Ever read the kind of "enforcement order" that lay Code Enforcement Boards tend to write (even with legal help)?

I saw one that basically said - "stop violating this provision of the code and don't violate any others." That case involved a determination that landowners couldn't possess "Class II" wildlife (stuff that needs special permits) in an agricultural zone district (yeah, right, go figure). But there were probably 20 different species of animial other than goats, chickens and cats, including iguanas, jungle cats, and other exotic but non-regulated animals. Which would violate? What, specifically, did the client have to get rid of? The order didn't say.

That kind of order shouldn't support a code enforcement fine, no less an injunction enforcing the order. But it happens all the time.

But - Practice Tip - remember that judges and administrative bodies do have the inherent authority to correct errors in their orders, at least until the time for appeal or cert runs without a challenge; i.e. you can ask for a modification.

And you need to think about doing it - if you appeal an enforcement action brought against you in court on a "bad" order, you can probably raise this, but if you try to appeal or cert it, it's possible that you could get bounced for not exhausting administrative remedies (even unclear and unbounded ones).

1st DCA - statute can create "established law" for mandamus

In this opinion , issued last week, the 1st DCA held that in the context of a mandamus action, the court can look at and interpret an applicable statute to determine whether "established law" (i.e., the statute) creates the clear legal right and legal duty that must be present.

Seems that there's a statute that requires (shall languge throughout) the Dep't of Corrections to help inmates being released get the paperwork together that's necessary for the restoration of their civil rights.  They just didn't do it and in fact appear to have refused to comply with the statute.  (for those of you old enough to remember early Steve Martin:  Whoops, I FORGOT to pay my taxes; well excuuuuseee meeee!) The Florida Caucus of Black Legislators went in on behalf of the inmates to get an order compelling the Dep't to do its duty under the statute.

Department argued that they didn't have to, (nyah nyah nyah - you can hear the temper of the Department's brief in eh Court's opinion):  the statute has some ambiguities and they apparently claimed that because they were part of teh executive branch and because the governor and cabinet have sole (consitutional) authority over grants of clemency/restoration of rights, they didn't have to follow this statute and the legislature and courts would be violating the seperation of powers if they meddled.

The Court held that 1) it's OK for a reviewing court to resolve ambiguities in order to determine whether a statute provides clear legal duties, etc. -- the existence of DISCRETION, not ambiguity is what would relieve the Department of a duty.

It also instructed the Department that as part of the executive branch it was under the rule of the legislature and that even if clemency was discretionary and vested with the Gov, ensuring that inmates got applications and help in filing them was NOT any kind of violation of the seperation of powers.

Good case for land use attorneys to put under your belts for two reasons:  1) mandamus is not like a 1983 action where you need a court case dead on point before an official is going to be liable; if a statute, rule or ordinance create a "shall" kind of duty, that's enough; and 2) a mix of contingent and obligatory duties in the law doesn't negate the duty, even if a court is going to have to interpret the statute to resolve ambiguities or contingencies (example:  "if the application is found to be complete, the xxxx shall make a determination within 15 days" - contingent but mandatory).

sales tax amendment down, too

The sales tax amendment - aimed at establishing a services tax and limiting many of the exemptions on good - was struck because it violated the single subject requirement - here's the opinion.

Homestead amendment increase down in flames

Many folks may have seen this, but here's the Fla Supreme Ct. decision striking the homestead amendment due to misleading ballot summary language -- summary claims "tax relief" when local governments might just raise the millage rate.

New Anti-SLAPP legislation

So buried in this year's amendments to the Condo and Homeowner's Association statutes is a whole new anti-SLAPP provision that has intro language about homeowners association, but seems to be applicable to any "lot owner."
 
It expands the existing anti-SLAPP statute (that only applies to gov't entities) to prohibit suits by pretty much any government or business entity raised "solely" because of someone's statements in a land use or related matter.  It provides for expedited hearings and treble damages.  
 
Two big problems with the statute.  First, it probits suits based "solely" on the defendant parcel owner's presentation before a government entity.  Essentially, this requires the person sued to demonstrate an intent or mental aspect to the suit that may be impossible to prove.  How would you show that there wasn't any other possible reason for the suit?  Which leads to the second problem - it provides for mandatory awards of attorney's fees to the prevailing party - so if you sue to dismiss under the statute and fail, you're liable for attorney's fees. 
  
Given the risk, and the availability of fees under 57.105, it seems to mee that this might be useful just to expedite a motion to dismiss, but only if you think you've got a good smoking gun on intent - demand letters or statements on the record from the other side.   Without some smoking gun, the best use of the statute is for citing the public policy statements in it in a closer case to give the judge an additional reason to dismiss. 
 
Here's the text in MS Word format 

History - the strange case of Dr. Mack

So in one of those situations where you're researching something else and hit an unexpected opinion, last week I ran into the strange case of Dr. Roy Mack and his long, long fight with the Florida Bd. of Dentistry. Seems that Dr. Mack was accused back in the '60s of advertising low prices (oh, and maybe taking unfair liberties with a female patient) and was subjected to a discplinary "hearing" before the board.

The 3d DCA denied cert with this opinion, reciting competent, substantial evidence and DeGroot v. Sheffield. Florida Supremes deny cert. (this was pre-the amends to Art. V)

Then it gets interesting - Dr. Mack goes to federal court under s. 1983 - and this is before a bunch of the cases under which the federal courts avoid policing the state courts where ever possible.

The federal district court overturns on due process grounds in this opinion, citing a number of deficiencies, but focusing on the highly problematic role of the Board's lawyer (Cherry, a number of years early), who was doing things like making objections and then telling the Chair how to rule on them.

The 5th Circuit (yes, these cases are that old), then upholds the District Court's reversal, but on different grounds in this opinion. It declines to hold that the lawyer problem was "per se" a due process violation, but basically says that the whole hearing was a farce and did not comply with due process. More and more facts come out regarding the "irregular" conduct of the hearing.

The Board then appeals to the US Supreme Court, complaining about the federal courts meddling in such matters. The Supremes deny cert, but with this dissent written by White, who asks the question (answered shortly thereafter) of whether s. 1983 should operate to provide a kind of "civil habeus corpus" review of civil decisions in federal court.

The real lesson here comes from the comparison of the 3d DCA case with the federal case. It's a complete whitewash, using policies that support the discretion of agencies and quasi-judical boards. When you then read the federal cases and realize what happened, one can't help but believe that it might be a good thing to have effective federal court oversight over state court decisions in civil rights matters.

"Business" standing to challenge amendments = The Admin Comm'n Blinks

The Admin Commission overturned the ALJ's determination that a non-profit organization formed for the purpose of supporting good growth policies was not a "business" for the purposes of standing to attack the consistency of a plan amendment approval.

However, the AC didn't find that the ALJ was wrong. Instead, it determined that because another petitioner had standing, the standing of Citizens for Proper Planning was legally irrelevant and didn't need to be decided. It then went on to say that the issue is "debatable" (oh, please!) and asked the Legislature for guidance.

Here's the Final Order (thanks to Larry Sellers for forwarding it to me).

Condemnation blight - error to exclude evidence

Ah, the DOT strikes again.

Here, the DOT managed to get a motion in limine that prevented the condemnee from showing the jury evidence that property rents had been depressed by the prospect of a (very long time in coming) taking for a road project.

To add insult to injury, the DOT then crossed the plaintiff's expert on why they used "old" rent data and not newer, lower rents.

The 2d didn't buy it and reversed in this opinon. It cited by US and Florida Supreme Court cases for the fundamental and longstanding principle that the government cannot depress the value of property (whether regulation or just the threat of condemnation) and then benefit from that action in the condemnation award.

It never really pays to be tooo tricky

In this opinion, the 5th overturned a Circuit Court quashal of a decision by the Orange County Board of Commissioners (sitting in a review capacity?) that upheld a BZA opinion upholding the Zoning Director's determination that a landowner's mess wasn't a grandfathered non-conforming "race car repair" operation, but a junkyard.

Bad facts. The landowners had been cited for operating a junkyard. They tried through the determination process to become a non-conforming race car facility and it was this determination that was denied. We don't know from the 5th's opinion -- but it looks like the circuit court bought the idea - that it wasn't inconsistent for there to be a junkyard (impermissible) AND a non-conforming race car repair facility.

5th bought Orange County's view that because there was CSE to support the Board in determining that there was a junkyard operation, the Board was justified in rejection the contention that there was (also?) a race car operation.

What's really interesting is that we don't know if EITHER the Circuit Court or the 5th examined Orange County's processes. The Board's decision was characterized as being quasi-judicial, but was it a de novo type process or a quasi-appellate process based on the record before the BZA? And if the latter, was there any appropriate finding that the record and decision below was truly adequate for review? I promise that we'll see more of this, because a LOT of commissions seems to be taking on quasi=appellate roles over local administrative decisions.

On Cert Review - Circuit Court must address all issues

In this opinion, the 5th remanded back to the circuit court for further consideration an opinion that it found did not address (properly) all of the legal issues raised in the petition. The failure to do so was a found to be a failure to apply the proper law.

Important case because if a circuit court punts an issue in your cert petition, this decision implies that this is remandable error. Stow it in your backpacks for later use!

Contemptable behavior ? Not according to the 5th DCA

So back in 2001 there's a referendum in Cocoa Beach to limit height and density. Doesn't go to the planning board first (which it would have to if treated as an LDR), and a group challenges it on that basis before the election. Court agrees to let the election go forward if City stays enforcement until hearing on validity later, and City agrees.

City then adopts a bunch of moratoria and LDR amendments to implement the height and density restrictions. Landowners angry. Court affronted - indirect implementation of referendum that City agreed to stay. Court later invalidates referendum - and this later gets overturned on appeal in decision that referenda, while legislative zoning ordinances, aren't LDRs for purposes of Chapter 163's requirement of local planning agency review. (Bad decision, but . . . ).

In the meantime, City continues enforcing the moratorium, etc. and end up in contempt.. City stands on its "legislative prerogative" and files a brief that's clearly a self-righteous rant (but wins any way). Here's an excerpt from the opinon:

Like the trial court, we are somewhat puzzled by the City’s position below and on
appeal. Rather than address the issue of whether the City actually violated the injunction by enacting the moratorium, the City has launched off into an attack on the trial court and what it calls its “egregious” violation of the constitution by “controlling” the City’s legislation in violation of the separation of powers. Reading the City’s brief as broadly as we can, however, we can divine an argument that the agreement of the parties, and the injunction based on that agreement, pertained only to the charter amendments approved pursuant to the challenged referendum and did not by its terms restrict the City’s ability to enact similar limitations by other methods available to the City’s commission. Because we agree with this proposition, we are bound to reverse the appealed order.

Vacation Beach did not challenge the moratorium as being beyond the power of the commission to enact; only that the City was prevented from enacting a moratorium that had the same purpose and effect as the referendum measure whose validity was in litigation and which was the subject of the injunction. We agree with the City that it was not so constrained. To say that the City could not do indirectly what it could not do directly does not solve the question whether the City could do something different but within its power that had the same purpose or effect as the referendum. If the City had the power to issue the moratorium before the referendum litigation and the injunction, nothing we can see prevented them from taking those same measures thereafter. The City did not agree to forebear height and density requirements or to place a moratorium on building. Even if the City intended its moratorium to show contempt of the court’s injunction, it did not because the moratorium was not within
the injunction. The City merely agreed to stay enforcement of the charter amendments.

The contempt order is vacated.

One simply must wonder what the Court would have done if the Plaintiffs had added a declaratory/injunction count against the moratorium itself as improperly supported, arbitrary and capricious.

Here's the opinion

[edited] Very weird - a denied comp plan amend not "fairly debatable" based on record at public hearing

[this is edited after a reread of the decision]

Woo, fella!
The 2d DCA released this opinion - 2/1 with a concurrence - finding that the City of Bradenton Beach's denial of a plan amendment from "preservation" to "Res-3" was not fairly debatable.

It appears that the landowner took the position that the original designation was in error and proved - to the satisfaction of the appeals court if not the circuit court - that no reasonable person reviewing the record would find otherwise.

It seems that the circuit court held a de novo hearing and found for the City based on the record there. But the majority opinion held that the record shows that the decision was "not fairly debatable" based on the record that was before the City Commission at the adoption hearing.

While this would be the right approach if the court was reviewing the plan for compliance with Chapter 163 (consistency w/statute & rule), I don't think it's right if the essential challenge is whether on a constitutional basis the Commission erred. There, the City should be allowed to introduce "post hoc rationalizations" (as Charles Siemon once called them) to justify the action.

(BTW - this is one of the most critical benefits to everyone from the Snyder decision, with all its limits. It's the record before the Commission, not some later discovered reason, that's valid. And it's why the absence of findings in those cases weakens the decision so badly.)

DOT strategy to require fights over experts?

It looks like DOT has lost a series of cases in which it tried to fight the payment of the condmenee's expert witness fees, then tried to avoid paying the attorney's fees for the hearings required to establish and collect those fees. No less than three cases in the 2d DCA over a 2 month period:
EPIC v DOT - March 5
Ruby Robbins v DOT - March 24
Bay III v. DOT - June 4

Plus a 1st DCA case on the same issue - DOT v. Nassau Partners, 29 Fla. L. Weekly D 1330 (1st DCA June 3)

It's kind of difficult to think that the DOT didn't establish a concerted strategy of trying to squeeze folks who fought them in the condemnation proceedings or to accept lower settlements for the costs.

Sign companies don't always win

The 11th rejected an attempt by a sign company to require the permitting of an otherwise non-conforming sign because of the constitutionally defective procedures in the ordinance, when the ordinance was amended immediately after the defects were pointed out to address the constitutional infirmities when the application was made and was in fact amended before motion for summary judgment. Here's the opinion.

What's interesting here is that earlier 1st amendment cases on signs seemed to indicate that an ordinance that discriminated against types of speech or didn't effectively bridle the discretion of the administrator were void to prevent the erection of the sign. That is, if the ordinance was infirm, the local government lacked the authority to deny the permit (even on construction, size, location or other less problematic grounds). This case seems to hold that when the objectionable parts are severable, there's no automatic order to issue the permit.

That being the case, the Court found that because the City amended the ordinance to make it constitutional, AND there was no likelihood that it would go back to unconstitutional procedures or discrimination, the case was moot.

Too Much Irony - US Supremes on Pledge

OK, it's completely outside land use law, but I can't help but post a link to the US SCT's decision yesterday on the Nerdlow case - here's the link. In case you haven't heard, five justices, including all of the "liberal" wing held that the father didn't have standing to bring the challenge to "under God" in the pledge because the daughter's education was placed with the mother in their custody agreement.

Here's a link to the NY Times coverage.

Here's a link to the St. Pete Times' coverage.

Supremes reject Coastal Petroleum Takings

Yesterday, the United States Supreme Court left intact a Florida state court decision that rejected property rights takings claims when the high court denied a plaintiffs' cert. petition involving offshore drilling in this opinion.

Thanks to Ralf Brookes for passing this one one to me.

Important sovereign immunity case -

The Florida Supremes issued an opinion Friday that is a MUST READ for everyone who deals with government agencies. In this opinion, the court held that FHP does not owe a duty of care to either remove stranded vehicles from the highways, OR to actually dispatch (and promptly respond)troopers based on a 911 call.

I won't go through the whole case, but I believe it to be one of the most lucid decisions laying out the analysis of the waiver of sovereign immunity I've ever read. It clearly lays out the path that the courts should take in getting to the operational vs. policy/planning level (it's after you'd find a common law duty in a non-governmental agency), and it clearly lays out the governmental duties have to flow from the established statutes and rules rather than internal operating policies (unlike civil rights cases, which go past sovereign immunity in most instances though not always the 11th amendment).

I also think that opinion lays out a better bright line than most of the sovereign immunity cases. The dissent by Justice Pariente (joined by Quince) also does a very good job of describing an alternative view of the duty issue that would have resulted in liability.

And there's a great set of string cites to cases finding liability for failure to maintain or properly operate governmental facilities.

Cutting off evidence from one side a DP violation

In another interesting case from family law, the 2d released this opinion - quashing a circuit court decision in a "shelter" case.

Essentially, the judge cut off the father during the informal hearing provided for by statute and rule, and didn't allow him to enter evidence. Rationale: 1) he was allowed to rule on written or hearsay evidence, and 2) "we don't do 3 hour shelter hearings here."

Gosh that sounds like the rationale that county/city commissioners (or actually the local government attorneys) use to justify using non-competent records (non-sworn or cross examined testimony or documents received by the planning department or planning commission) and limiting the time that an application - or 3d party - gets to present their case.

The 2d analysed this petition as one that implicated due process and held that even though the language of the rule was permissive in terms of the evidence the judge could consider, the statute was clear that every interested party could introduce evidence at the hearing. It held that:

Section 39.402 and rule 8.305 afford parents due process in judicial
proceedings in matters involving the State's temporary removal of children from the
home. In this case, the circuit court erred by disregarding the statutory and rule
provisions affording the parents a right to be heard and to present evidence at the shelter
hearing

So - here the judge erred in not interpreting the statute and rule so as to preserve the due process provided. But court clearly is holding that the failure to properly interpret the statute was a due process violation.

Implication? Where due process rights are implicated, you can't scimp on the right to be heard, even if due process allows a "less formal" hearing. I believe that commission rules that limit one side (or the other) to 20 minutes in a rezoning hearing - or 5 minutes to opponents - violate the right to be heard and to present evidence. If the commissions don't want to provide a proper due process hearing, let them use hearing officers.

Oh - that goes for the Gov and Cabinet, too, when they sit in an adjudicatory role.

Supremes: "normal" judicial review may be OK for adult licensing schemes

The US SCt release this case from Littleton, CO, that involved a facial challenge to an "adult materials" licensing scheme on the basis that it did not make adequate provision for a prompt judicial determination.

While the City argued that all that was required was a prompt avenue for judicial review, the Court held that prompt judicial determination is critical. However, it also found that the standard review procedures available were sufficient in the case of that ordinance, at least to survive a facial challenge. Factors supporting the decision included:
1) standard rules of procedure covered the issue
2) the standards in the ordinance were objective and therefore appropriate for easy judicial determination
3) there was no reason to believe that the courts would not recognize the constitutional need for a prompt determination and deport themselves appropriately; and
4) there was always the avenue of a 1983 suit in federal court should an as-applied challenged require it.

WHOAA!!!

Yes, the US Supreme Court held that the federal court supervision of the state courts was available and a supporting factor in why specific legislation covering state court review might not be required.

And the Court also seemed to be saying that discretion in an ordinance (at least where the 1st amendment is implicated) would demand strengthened provisions for judicial review. While this is 1st amendment via 14th and not the 14th itself, one must wonder whether the court would buy the wholesale extension of the post-Roth cases like McKinney to traditional as opposed to new property. If the Supremes start recognizing that discretion in local regulatory ordinances is a key source of discriminatory enforcement, I think we'll see movement on this front.

Finally - one has to wonder whether the Supremes would have analyzed the review question the same way if the case came from Florida, where local administrative decisions can only be reviewed by cert (because of the Legislature's continuing failure to live up to its Article V implementation duties and provide for the review of local administrative decisions by general law) and cert is "kinda discretionary" in terms of standards, etc - AND there's no general way for the proper appellate courts to supervise the cert jurisdiction of the circuit courts. Think about it: today, if a circuit court judge wanted to sit on a cert petition for 2 years, there's no procedural way to force her to disgorge a decision. Some courts even use a "miscarriage of justice" standard (created more or less from whole cloth) to dismiss petitions that may be well founded in the law. That is, the line of cases (that historically applied to lower courts, not lower administrative tribunals) that held that the courts wouldn't use cert to correct "mere legal error" in the proceedings or outcomes argues strongly against applying this decision to them.

Happy litigating, everyone!

Due Process/Bias Issues When Bd or Staff Attorney Does Findings

It's a common practice in local qj hearings for the board attorney (we'll get to board/staff role problems in a minute) to prepare a set of "canned" findings for the Board to adopt. Almost no local procedures have a process (like in the FAPA) where the parties file proposed findings/conclusions.

Well, here are a couple of cases that support the idea that the FAPA proposed order process (both sides get to do them, get to comment) may be a due process requirement and that common practice here is improper. In this case the Florida Supreme Court held that it was improper (uncon/bias/no basis for review) for a judge to adopt findings proposed by one party when the other party had neither the opportunity to review and comment on the proposed findings nor an equal opportunity to present its own. This case has a lot of meat for the proposition that a judge has an obligation to render a complete, independent decision and not simply accept proposed findings/conclusions wholesale. Justice Pariente's concurrence points out that one of the key policy comments in Canakaris demanded that the deference to and discretion of judges needed to be balanced by review that would ensure that decisions were consistent.

And in this case out of the 2d, the Court held that to adopt one side's proposed order without change and without making independent findings on the record created a severe reviewability problem and the conclusion that the judge had delegated his decision making authority to one of the parties.

What are the implications - well, first, these decisions point out the due process basis in many of the FAPA statutory procedures that are all too lacking in the quasi-judicial proceedings before most local boards.

Second, the policy in these cases clearly indicates that it's improper to have a an adjudicatory process that provides for recommended findings from staff without having a chance for the applicant or opponents to put in recommended findings, etc. It is also clear that it is improper for a decision maker to simply vote to accept on (or another) recommended findings: the board must establish an independent basis for its determinations on the record. So there needs to be a process by which the proposed orders are considered fully and fairly before the decision maker issues an opinion.

[Comment - it's also clearly improper in a case where the attorney for the Board is supposedly independent from the staff to have prepared findings ahead of time in an adjudicatory proceeding. How could findings based on the record at the hearing be prepared by the finder of fact or its representative until the close of the evidence? This is one of the areas where there needs to be a clear distinction in process before city/county/special dist commissions between quasi-judicial decisions where this would be completely improper and quasi-legislative decisions where prepared findings would be OK]

Finally, as I've stated elsewhere, where the local procedures are inadequate to protect a party's rights, the party must make its objections known on the record.

PRACTICE POINTS:
1) for all the gov't attorneys out there: start regularizing your quasi-judicial processes and provide for a) either no proposed findings from anyone, or a fair route for all parties to provide them; b) processes by which the Board makes independent findings on the record that would support/explain it adoption of any findings/orders that are proposed.
--- for all the folks out there screaming "my board can't do this" (see all the complaints about Snyder, etc.; the answer is simple: if you can't provide for quasi-judicial hearings and decisions from your boards that comply with due process and review requirements, adopt a hearing officer model. Due process doesn't go away just because there are five or seven judges, so either start having full three day hearings that are serious due process hearings or delegate the authority.

2) for landowner/applicants and 3d parties:
a) prepare a recommended order and give it to the other side(s) at the end of the hearing. The more detailed, the harder time they will have doing something summary and justifying it on review.
b) demand that any and all proposed findings be given equal consideration by the finder of fact.
c) object on the record if the staff has proposed findings but you're not given the same opportunity, or if the Board doesn't discuss them equally, etc. At the very least demand the right to review the findings and present oral or written objections to the Board BEFORE it makes any decisions.
d) object on the record if the Board's attorney has prepared findings before the close of evidence - such findings either are unsupportable or are clear evidence of bias and collusion between the "independent" board attorney giving advice and the "prosecution" role. See Cherry and similar cases.

Local government attorneys I've talked to often operate under the belief that because Matthews v Eldridge states that the formality of due process that must be afforded is dependent on the circumstances, they can avoid the fairness and reviewability standards demanded of due process hearings. Cases like these (and others I've been citing) demonstrate that this is NOT the case: both the "opportunity to be heard" and "fundamental fairness/lack of bias" are CORE due process principle and must be respected.

Admin Res Judicata -- well, not - but an interesting issue

The same day that it released the Collins decision, the Fourth released this opinion declining to apply res judicata principles (because of mootness/lack of effect) in a 2d tier cert case involving a special exception. The case doesn't tell us much about res judicata, but points out a signficant issue regarding the expiration of certain approvals pending an appeal.

Unfortunately, the court gives no details, but it appears that one special exception was granted, appealed, and then expired during the pendency of the appeal. Another was applied for and denied, though we don't know if this occured while the cert petition was pending or while the applicant/church was trying to appeal the legal decision in the first case.

Interesting - the first cert (obviously 3d party) was claiming admin res judicata against the granting; the circuit judge denied as moot (because of the expiration) and also made a comment that the Board had erred in granting the exception because of the admin res judicata issue. The church took the issue to the Fourth on that issue. The Fourth declined on the basis that of mootness but also because the Board had denied the later application. It therefore declined to rule on the res judicata issue. What we don't know is whether the later denial is up on appeal in the circuit court. If it is, the res judicata issue may be coming back.

See the problem? If the first special exception expired only because the church didn't want to go forward while a cert petition was pending (remember Shidell, you don't want the approval to expire just because of the petition. That creates a situation where attacks on an approval can succeed simply by drawing out the proceeding until the approval expires.

And if it does expire, you re-apply, and then get denied (maybe by a new board, maybe by more developed politics and maybe because the application really didn't meet the standards), you'd want to argue in a cert proceeding against the denial that res judicata applied to the grant, and that the "reapplication" should have been granted absent changed circumstances or standards. This is untried grounds, really - the cases are somewhat all over the place and most of the ones I recall involve attacks rather than defensive use of res judicata (neighbors complaining that a second application shouldn't be approved rather than applicants claiming they should be).

Practice point and future litigation issue: if you're representing an applicant for a special exception (or variance or conditional use permit), get it, and the decision is challenged in cert by a 3d party, you probably want to ask the local government for a stay pending the appeal - yes, as the applicant - so that your time doesn't run out (if you're in a jurisdiction with a short fuse on SEs). [Of course you could take your chances and proceed on the approval, but if it involves construction activity and investment rather than mere use, I wouldn't recommend it to a client).

I'm guessing that many jurisdicitions wouldn't know how to handle this today, and would say they aren't authorized to grant a stay. But look at Fl. R. App. P. 9.190 - the provision for stays of decisions NOT taken under the APA provides that tribunals have the authority to grant them under appropriate terms. But you might end up having to ask the court to use its plenary powers to stay the decision if the local government won't.

DOAH - EFiling Registration for Fla Attorneys

Starting today, if you're a Florida attorney, you cans sign up for DOAH - EFiling Registration and file most pleadings and paperwork for an administrative hearing from your desk. Very cool - the electronic forms apparently on the site apparently generate properly captioned documents which get sent to you for service on the other party after you file.

Very cool for the technologically inclined.

Standing to Appeal Comp Plan Amendments Limited by 4th

On Wednesday, the 4th DCA released this opinion that holds that "third party" standing to maintain an administrative challenge to a comprehensive plan amendment under s. 163.3184 doesn't automatically provide standing to appeal under 120.68 if the party loses. It dismissed an appeal by the Martin County Conservation Alliance and some of its members to a plan amendment that had been approved by the Dept of Community Affairs after a 120.57 hearing and final order. It's another one of those superficially reasonable decisions that seems well supported by law and context, but that fails to hold up under any scrutiny.

(BTW - thanks to John Ferguson, Larry Sellers and a few others who sent me the link to the case. As with all my posts, the views here are mine and while I'm happy to challenge folks who might think differently, I don't intend to offend).

Essentially, any "affected" person can challenge a comp plan amendment AS A FULL PARTY, but the court held that under 120.68 one must be (and show in the record that they are) "adversely affected" by the administrative ruling to appeal.

Before getting into the meat of this ruling (which I'll do only relatively briefly because a full discussion would require a law review article), let's start by saying dismissing this appeal without giving the parties an opportunity to cure the pleading or factual basis below is flat out unfair. Folks have been challenging plan amendments based on pleading general facts regarding impact of the amendment ever since the statute was passed without this challenge being raised, and typical practice has been not only to make general allegations, but for the local government and landowner to stipulate to standing generally. So as a matter of principle, the petitioners here had no fair notice that they had to plead or prove differently.

[BTW, it's my understanding that the court picked this argument on its own motion and that DCA actually argued that MCCA had standing; I don't know what the County or landowner argued]

On the meat, well, let's start by saying that it's always a bad sign in a standing case when the court begins by citing a federal case (Morton in this instance). Federal case law - on their APA or general standing - simply has nothing to do with standing under Chapter 120 - the FAPA.

The essential issue here is whether the LEAF v Clark case - which held that LEAF, while being granted intervenor/party status by the Public Service Commission in a rulemaking proceeding that involved how conservation goals were to be set for electric utilities was not "adversely affected" by PORTIONS of a rule it didn't like - really stands for the proposition that a party who loses in an adjudicatory hearing is not automatically adversely affected by that decision.

The cites in the case make this seem like the cases hold that standing to appeal is generally separate from standing to appear, but that's really not the case.

Leaving Daniels (which was a case that FOUND standing) for a moment, LEAF involved proceedings before the PSC based on a grant of standing by the PSC (not by invoking and demonstrating that it was affected). PSC held extended negotiations with the parties, then convened a hearing and entered a final order adopting rules that governed how utilities would be required (or not) to implement conservation programs. The Court held that LEAF did not have standing to contest ONE PART of the final order that involved how the standards would be enforced. It did (implicitly) give LEAF standing on due process claims, as well as on its claim that another part of the rule was not supported by the evidence. It is VERY important to note that in the case of this rulemaking, the proceeding was, more or less, held before the PSC itself; that is, it was NOT a case where a hearing officer adjudicated a proceeding under 120.57 and the agency entered a final order.

So the LEAF case really stands for the proposition that a participating party in a RULEMAKING proceeding has (automatic) standing to contest issues that go to the fairness or evidence of the decision, but maybe not to the choice of enforcement mechanisms if the party will not be subject to them. It says NOTHING AT ALL about whether or not a party to an ADJUDICATORY PROCEEDING who loses part or all of the rulings there is or is not "adversely affected" by the final order. And LEAF clearly implies that insofar as there are adjudicatory issues (due process, etc.), a party to the proceeding is adversely affected by decisions or actions taken below that are adverse to them. That is, LEAF does not stand for the proposition for which the 4th cited it: that a losing party needs to show that they will be harmed by the decision as a whole in order to appeal all or part of it.

Let's also look at the specific case of comp plan amendment challenges: here the statute provides that administrative adjudication is the ONLY way to test the compliance of a plan or plan amendment with the statute. Because the state is supplanting judicial review of the amendment decision with an administrative adjudication, it must afford full due process and full judicial review of that process. (Scholastic Systems v Laloup).

The statute also defines (beyond the Chapter 120 definition) not only who is an affected party, but the some of interests that are STATUTORILY determined to be affected by planning decisions. The intent of this definition was to ensure that plans and plan amendments could be challenged broadly by the people who had to live with the long term results. [there is legislative history directly on this point that I saw as staff to the Jt. Select Committee on Growth Mgmt Implementation - thanks to Mike Morell for reminding me] The GMA challenge provisions also were adopted with the longstanding belief by most administrative law lawyers that a party who loses an ADJUDICATORY DETERMINATION in a 120 process is adversely affected by that determination for the review purposes of 120.68.

What's more, the whole reason for determining the validity of plan amendments against the statute and rule is that the actual impacts are speculative - but are recognized by the statute as coming. That is, when you change a land use designation, the statute assumes that - within a reasonable period of time - infrastructure, environment and neighboring land uses will be affected. The potential for adverse impact is presumed by the statute - the point is that the local government and/or landowner are supposed to be showing that the impacts will be properly dealt with.

So -
1) Broad interpretations of Daniels and LEAF to hold that a party to an adjudicatory proceeding under 120 who loses an adjudicatory determination isn't "adversely affected" is just wrong. How do you litigate the way that you might be harmed by a decision that hasn't been made yet? The rulings themselves, if adverse to a party, adversely affect the party, plain and simple.

2) The only potential area where this might NOT be true (dicta in Daniels, referring to Balino, and the case in LEAF) is where the proceeding is rulemaking and the rule involves provisions that affect only parties regulated by the rule (which was a fact-specific determination made by the LEAF court in finding that LEAF didn't have standing in that part of the case).

3) Attempts by the Courts or other litigators to import some kind of Rickman type standing into these cases flies in the face of the intent of the statute. I sincerely doubt that judges at the 1st DCA would have made a ruling like this for fear that Pat Dore would rise from her grave and haunt their chambers for the rest of their lives. Clearly, the 4th DCA judges never read any of her foundation articles on the role and purposes of Chapter 120 and standing in 120 proceedings.

Personal note: I was in Professor Dore's Admin Law class at the time of her death and we had been covering standing issues - she not only argued for open access to the administrative process (see her seminal 1986 article) but also to the appellate process.

PRACTICE POINTERS:
1) If you're a 3d party, plead specific ways that you will be affected by the change in the comp plan. I don't think this needs to be Rickman injury (different than the public as a whole). I'd be thinking of the same kinds of issues that I'd raise in a 3215 challenge and plead them.

2) Don't stipulate to standing generally, stipulate to the facts. In fact, I'd push to get stipulations regarding how my clients would be affected (adversely) if the amendment passed, even if some of them are speculative.

Happy litigating!