Friday, February 27, 2004

Severe Weirdness

Hi all -
I went to updated the case links in the two 3d DCA cases and somehow the whole entry got deleted. Time to move to a new blogging tool.

Links are:
Miami v Wellman
Miami v. Sinopoli

There has been a lot of conversation about two suits versus one with cert plus dec counts on the ELUS list serve. I'll try to collect them and create a file/link.

Sunday, February 22, 2004

Personal Update

Hi everyone -

Just a quick note to say that as of February 23, 2004, I will be joining the Sarasota law firm Levin, Tannenbaum, Wolff, Band, Gates and Pugh. I will be continuing to handle land use and related issues.

I will keep this site, blog and email list running as Florida Land Law for the time being, but links to my information now go to Levin, Tannenbaum's website.

My contact information there:
941-316-0111 x 209.

Thanks for everyone's support! Please continue visiting the site.

Tuesday, February 17, 2004

Access rights are property rights

Another recent 2d DCA case - Johnson Services vs. Pinellas County, reinforces that access rights from property to roadways are appurtenant rights and are protected by the due process clause.

Pinellas County curbed off two of four access points into the Plaintiff's service station, without notice or opportunity to be heard or to contest the action. When Johnson's Services sued under s. 1983 in state court, claiming that the County violated due process guarantees, the County defended by claiming that the plaintiffs had no "property" in the accesses and therefore no due process rights.

The County argued that because there had not been a substantial diminution in value to the land as a whole - a 5th amendment takings analysis - there had been no deprivation of "property" and therefore no due process violation. [note- I understand from Dave Smolker that FDOT has been making the same argument for years in its access management program implementation.] This argument was rejected by the 2d DCA as fundamentally flawed. Access rights are appurtenant property rights under Florida law and therefore are property interests protected by the due process clause.

One can hope that this case points to the day when the courts stop the pretense that there are no 14th amendment due process-protected property interests in "unvested" building permits, site plans and other development orders or environmental permits. The extension of McKinney v Pate (and the post-Roth cases) that deal with statutorily created employment and welfare rights to the property realm, where the ability to use property consistent with law has been held to be a valid property interest since common-law days, is one of those bad ideas that create complacent regulators and lawyers - not a good thing whether you're a developer or a citizen activist (or anyone in between).

The case - Johnson Services v Pinellas - is attached below. BTW - this is another case that my friend Dave Smolker argued.

Johnson Services v. Pinellas County

In case you forgot - there's always at least 1 judicial review of admin action by right

It's long been established that due process requires at least one meaningful opportunity for the judicial review of administrative action.   See SCHOLASTIC SYSTEMS, INC. v. LeLOUP, 307 So.2d 166   That's the policy behind the curious fact that while certiorari historically is a discretionary writ, if no provision is made in general law for review of administrative action, you get certiorari "by right" under Deefield Beach v. Vaillant.

In this case, released today, the 2d DCA reverses a judge who summarily denied a petition for writ of cert challenging the denial of a plat approval (which is quasi-judicial under Park of Commerce).  While the District Court spanked the lower court for using a "2d tier" analysis, what really happened here was that the circuit court forgot that 1st tier review simply isn't discretionary.

Here's a link to the case, Brasota Mortgage Co. v. Town of Longboat Key.

Wednesday, February 04, 2004

Contracting Away the Police Power

A flurry of activity on the Florida Env't & Land Use Section's email list led me to post a few Florida cases that describe limits on the ability of a local government to agree to change land use designations (plans or zoning) through a developer's agreement or settlement agreement.

I'll post some ideas on this issue later, but thought I'd share the cases with everyone first.

First: Chung v Sarasota County -- limits ability of local government to agree to rezone a property with conditions to settle a lawsuit:

Second: Morgan Company v Orange County -- court refused to order County to implement a developer's agreement to rezone land, even after the developer completed its end of the bargain:


Last: Hartnett v Austin - Mother of Florida cases on "contracting away the police power" in zoning.