Tuesday, January 27, 2004

Vested Rights & Temp Injunctions

The 2d DCA just released an opinion in a case involving whether rights could be vested in land use designations, site plan reviews and related approvals.

Charlotte County applied an "airport overlay" in its comp plan after it decided that it didn't like the way that a developer was planning to develop a long-standing industrial area around its private airport. Preliminary re-platting had been approved and a site plan meeting the then-current standards had been delayed from approval while the County worked to change the legislative/plan policies that applied.

The lower court entered a temporary injunction, then went on to grant permanent relief based on the hearing for the prelimary injuction. The 2d DCA upheld the preliminary injunction, but then held that the circuit court needed to hold a full trial on before making ultimate findings and entering a final judgment. As in the PM Reality v Tampa case (another entry), the core issue there is that findings sufficient to support (or reject) a temporary injunction are NOT ultimate findings on the merits: they don't bind the court in making or changing its findings based on a full trial, and can't be the basis of entering final judgment.


On a side note, this case is also notable for the appearance of my friend Dave Smolker and his firm, who traditionally have defended private property owners in these kinds of cases, on behalf of the County.

Tampa Temporary Injunction Case

The 2d DCA held that it was improper for a circuit court to enter a final judgment against the operators of an adult entertainment business without a full trial/hearing on the merits. The court had earlier denied a temporary injunction against the enforcement of the ordinance and that decision had been upheld by the appeals court.

However, it was improper to enter final judgment based solely on the facts and findings that supported denial of the temporary injunction. Such an order is neither final nor binding on the court in making ultimate findings and the plaintiff had the right to put on a full case against the ordinance.


Saturday, January 24, 2004

Reconsideration of a QJ Decision

A recent case - SMULL v. TOWN OF JUPITER, 4D02-1818 (Fla.App. 4 Dist. 2003) - released September 3, held that a town board could reconsider its quasi-judicial decision up to the time for filing a challenge to it (30 days from rendition), unless such a challenge had been filed.

Also - and critical to practitioners - the Court held that the time (in this case) to challenge the decision did not begin to run until after the Board had voted to reconsider because the first time it voted the decision was not reduced to writing and filed with the Town Clerk. The Court held that the decision was not "rendered" as defined in Fla. R. App. P 9.020(h) (governing common-law cert appeals) until the decision was reduced to writing and filed.


1) If you're on the losing end of a qj decision, you can ask for reconsideration w/in 30 days.
2) If you're on the winning side of a qj decision, the decision isn't really final until the 30 day window for challenging it closes.
3) Regardless of what side you're on - the time to challenge doesn't start to run until it's reduced to writing AND filed! This is a very, very big thing in many jurisdictions, where board votes are not written and filed immediately. It's an even bigger issue for jurisdictions where denials are not ever reduced to writing!

This creates a GIANT problem for quasi-judicial rezoning decisions. Under Snyder and GBV, a City or County Commission doesn't have to provide a written opinion. But if there's no written decision, it's not rendered - so you can't challenge it.

And to throw in another complexity - the 30 day window for challenging a development order under s.163.3215 has been held to start running when the decision is made, without regard to the "rendered" definition in 9.020(h). So your window to mount a 3215 challenge may be shorter than your window to enter a cert challenge.

For your consideration, the decision is linked below:


Friday, January 23, 2004

Omnipoint, cert and constitutional challenges

OK, this is my second time writing this post - lost the first when when a file upload crashed the browser before I'd posted and saved it.

The Supremes and 3d DCA took the strange Omnipoint case and made it even stranger. The cases are linked here:

Omnipoint II-Fla S Ct.doc

Omnipoint III - 3d DCA on remand

Here's the new can of worms: The Fla Ct held that you can't make constitutional challenges in a cert petition. No "only precedural/as applied/etc." exception - just a blanket prohibition.

The 3d on remand went further and held that a quasi-judicial decision maker can consder ONLY the criteria laid out in the authorizing legislation that guides the decision.

While I'm a big believer in much more attention to delegated authority, clearer standards, etc., this creates some serious problems. Example - if a special exception or variance ordinance doesn't specifically provide a criteria of "is otherwise consistent with the objectives and policies of the Comprehensive Plan" then the BZA (or whatever board) CAN'T consider the plan in making its decision, even if it would be consistent with the other criteria and discretion of the board.

Everyone should read these opinions - we're going to be litigating the meaning and limits of them for the next 10 years.

Lots of fun new challenges ahead, folks.

Thursday, January 01, 2004

Briefs and document in Hernando Prohibition Case

Hi Everyone -

It's been far too long since I updated here - a lot of things will be posted in the coming day/week.

First highlight - briefs from both sides in the Hernando case- thanks to Joe Mason, the attorney for Florida Water Services in the case:

Appellant's Brief


Reply Brief