Friday, March 26, 2004

Cert a mess in rezoning - more info

As promised, here are more documents relevant to Sarasota County v. BDR Invest., the cert/rezoning case I posted last week. Formats vary because I had to scan some and got others from the source.

(BTW - Thanks to both Gary Oldehoff of Sarasota County and to Mike Furen for being VERY responsive to my request for copies of the pleadings).

Circuit Court's Order Granting Cert
Petition to Circuit Court
County Answer in Circuit Court

I've got the County's petition and reply in the 2d DCA case - still need to get BDR's answer, but here are those documents:
Sarasota County's Petition for Cert to 2d DCA (WP format)
Sarasota County's Reply(Word Format)

Just a couple of substantive notes on this:
1) on CSE in the record. Without going into the whole idea that "need" is or is not a valid condition, the County here claimed that there was CSE to support the denial based on the staff report's statement the the Applicant had not demonstrated this. The Applicant (later Petitioner) then put on evidence regarding this before the Planning Commission and County Commission, which apparently was rebutted only by a neighbor's bare statement that there was no need because there were existing 5 acre lots in the area.

If a staff report notes a deficiency in evidence or potential issue regarding consistency with the plan, and this statement is then addressed by the applicant in its presentation (or if it makes a statement finding consistency which opponents present testimony against), the government should NOT be able to claim CSE based on the staff report. The government should be required to present rebuttal testimony on the record (and subject to cross examination, etc.) against the testimony presented at the hearing. Any other approach creates a situation where ANY comment in a staff report (which is NOT sworn, and which is NOT subject in and of itself to cross examination) can effectively conclusive in supporting the Board's decision. This is a gross due process violation because it effectively creates an unrebuttable presumption in favor of whatever position the staff takes, however unsupported by the evidence adduced at the hearing. See, e.g., Miami Dade v Reyes, 772 So.2d 24 (Fla. 3d DCA 2000)(while county ordinance could provide that meter reading was prima facie evidence of the delivery of water, it could not make this an effectively irrebuttable presumption).

2) On the complex and increasingly difficult issue of impermissible vague or internally contradictory goals, objectives, policies or provisions in ordinances.

In this case, the County is in large part relying on general goal language in the Plan supporting the maintenance of agriculture and some language in the intent section OF THE ZONING DISTRICT itself that purports to require a demonstration of need before more "intense uses" (which might or might not mean the higher level of density) before a rezoning occurs.

These provisions are extremely vague and subjective. The zoning provision also seems to want to trump - or add substantively to - the comprehensive plan's own requirements. The application of such policies - which also now can be "post -hoc" in a zoning decision because of the very very bad Snyder and GBV "exemption" from detailed written findings - create serious due process problems. These are made all the worse because an Applicant can't figure out whether s/he has to object to their use at the hearing itself. And it's made even WORSE by the whole Omnipoint approach to constitutional issues: just how do you object to the application of an unconstitutionally vague policy -- or an ad-hoc or incipient policy regarding interpreting a policy? Do you have to raise it at the hearing (when you don't know how they're going to apply it yet)? Can you raise it in the cert petition (and what evidence do you have that they're applying vague policies)? Do you have to - or can you - raise it in a dec action if you believe that the local government applied a vague policy?

Wednesday, March 24, 2004

US SCt remands Clean Water Act determination to 11th and District Court

Ok, I don't post a lot of environmental law cases, but this one obviously is pretty big.

The Miccosukee Indians challenged aspects of South Florida Water Management District's implementation of the Everglades cleanup on the basis that they hadn't properly permitted their activities regarding one of the big pumping stations (S9) under the Clean Water Act. Basically, the argument is that the pumping of water from east to west (against the basic flow) combined with the levee system, had the effect of discharging pollutants (picked up in runoff in the more urbanized areas to the east) into the Everglades. Basically, SFWMD pumps the dirty water west, where the levees slow or prevent it from moving back east and instead allow the waters to flow south into the Everglades.

The District Court and the 11th Circuit both held that because SFWMD pumped water from one water body into another, it needed a permit under the Clean Water Act.

SFWMD and the US argued that the act of pumping from one body of water (the canals, etc.) to another didn't constitute a discharge because the water bodies were the same (e.g. that the levees that separated them didn't create distinct bodies of water). They later argued (and this will be a big deal on remand) a "unitary" theory that ALL navigable waters (and therefore under US and CWA jurisdiction) are one body and that there is never a need for a discharge permit to move water from one to another.

The US SCt determined that summary judgment was improper (at this stage) and remanded for further determination of whether the two areas (separated by levees) in fact constitute separate water bodies and also for argument on the "unitary" theory.

Setback for the Tribe, but no slam dunk victory for any side.

Here are the syllabus, the opinion, and a concurrence/partial dissent by Justice Scalia.

Cert Review of Rezonings - Still FUBAR

The 2d DCA granted cert to Sarasota County, quashing a cert petition granted by the circuit court against the Sarasota County Commission's denial of a rezoning applications. It's a mess.

I'm going to try to scan and post the original order and petition/answer as well as the appellate petition/answer/reply sometime soon for all to read, but here's a synopsis:

The rezone (of ag lands from 1 unit/10 acres to 1/5) got generally passing views from staff and was approved by the Planning Commission with recommended conditions. Note - in Sarasota County, the practice is to avoid a staff "recommendation" one way or another.

At the quasi-judicial hearing before the BCC, all hell broke loose. The County Commissioners started discussing the impacts of a just-adopted (but not yet approved) land use amendment that might allow the petitioner to come back for another rezoning to do a "conservation subdivision" that could allow 1 unit/3 acres. A neighbor was allowed to testify extensively that there was no demonstrated "need" for lots. Then at least one Commissioner started investigating the traffic analysis and got the relevant staff expert to opine that the traffic model had been run backward.

The Board voted to deny the rezoning petition making a few basic findings.

The Circuit Court granted a petition for cert based on its review of the record and determination that a) the Board applied the wrong law - that it denied based on the application of the new plan provision and in doing so violated due process, and that b) the denial was not based on competent, substantial evidence in the record.

The 2d reversed in this opinion. It found that the circuit court applied the wrong law because it didn't follow .Snyder's back and forth process for the review of the decision. It also found that the court had improperly re-weighed the evidence.

A couple of notes here. First, the effect of the Circuit Court's quashal of a rezoning denial is not to order the lower tribunal (here the BCC) to grant the rezoning; instead it orders the the board to re-consider and re-enter a decision. This seems to be absolutely the right thing to do when the Board's written or unwritten decision is insufficient to justify its LEGAL basis for action (as opposed to the CSE/factual basis). Of course, this is an endemic problem to rezonings in Florida given the Florida Supreme Courts unfathomable and untenable postiion in Snyder and Broward County v GBV that full written opinions aren't required. (see Justice Pariente's telling dissent in GBV).

Second, the 2d DCA did exactly what it's NOT supposed to do in addressing the "competent substantial evidence" review - it peered into the Circuit Court's review process. This is not a case where the Circuit Court stated that the lower tribunal had improperly applied the evidence - the Circuit Court found that there was no CSE to support the legal basis for the denial. Or, in other words, all the negative evidence in the record went to matters that were not legally sufficient (e.g. "need" for a rezoning, which is not a basis in the Sarasota Plan or LDR's).

Third, under the 2d DCA approach and interpretation of Snyder, there's essentially no way for a landowner to establish that the denial of a rezoning was improper. This was not the intent of Snyder (and there's REALLY problematic language in the "shifting" discussion in which the court didn't really say what it meant). The 2d seems to say that somehow "the correct application of law" is limited to the Snyder formulation and that there is no other law to apply - which is just silly, if you think about it. It's clear that a Commission can't apply incipient policy (unadopted plan policies) or policies that lie outside the Comp Plan and LDR - but if they discuss those things and clearly (from the record) decide based on them but fail to make a written finding on those ancillary matters, the 2d's position ends up being that this abuse is unreviewable.

I hope to provide more posting/info on this soon.

Saturday, March 20, 2004

Sign, Sign, Everywhere a Cafe Erotica Sign

In this case from last month (thanks to Matt Conigliario at AbstractAppeal), the 11th Circuit struck St. Johns County's sign ordiance for giving impermissible discretion to the County Administrator to determine what signs are political and therefore subject to restrictions.

The case was brought by those kindly folks who specialize in naked waitresses at truck stops - and who are nervy enough (surprise, surprise) to use their billboard space to make negative statements about the politicians who keep trying to put them out of business.

The County's sign ordinance created three clases of signs: billboards, site-signs and "special;" the latter included signs that had a political message and limited them to 32 square feet as well as requiring that the sponsor of the sign be identified. But the definition of billboard was very broad.

The court basically found that the County was impermissibly discriminating against political speech; it also created a situation where the County Adminstrator could classify some signs carrying political messages as billboards (allowing them to be bigger), or conversely, determine that some (undesireable) message was "non-commercial" and political and therefore could not be put on a billboard if the the billboard was over 32 square feet - or that was a violation of a valid billboard permit.

Yet another badly thought out attempt to limit political speech - and in this case - silence Cafe Erotica and We Dare to Bare, who were placing messages attacking the local commissioners on the billboard space they so copiously rent along I-4 and I-95 in that neck of the woods.

Here's the file:Cafe Erotica v St Johns County

Don't go near the water (not)!

The City of Key West fell afoul of state antitrust laws as well as against the commerce clause - and s. 1983 (and presumably attorney fees under s.. 1980) by granting two tours (the famous Conch Train and the Old Town Trolley) exclusive rights to operate near the waterfront and criminalizing Duck Tours attempts to beguile tourists and cruise ship passengers into water tours in WWII "duck boats."

The 3d DCA held that this was a violation of state antitrust laws -- the City's arguments about being authorized to limit competition under its general authority to regulate the streets was, well, not sufficient to get it past federal antitrust scrutiny, which in turn left it liable to be found in violation of the Florida law. The court held that the City would be liable for attorney fees and costs under the state statute.

But that's not all! The court went on to hold that summary judgment against Duck Tours' commerce clause claim under s. 1983 was improper -

"Reading the summary judgment record in the light most favorable to Duck Tours as the nonprevailing party, the ordinances constitute a burden on interstate commerce that is clearly excessive in relation to the putative local benefits. "

Yet another case of a local government pretty blatantly over-reaching and the refusing to say "my bad" when busted.

Here's the case in PDF format:


Monday, March 15, 2004

Update - ELUS discussion of Omnipoint

I've finally compiled the long thread(s) of discussion of the Omnipoint and "declaratory and cert in the same action".

There are a lot of land use practice areas where the law isn't as settled as it should be, but the fact that the top land use attorneys in the state (represented in this discussion) can't agree on a pretty basic procedural point regarding how these cases should be litigated is a pretty good indication (to me, anyway), that the law isn't clear enough.

Here's a link to the combined (and edited a little bit) thread: Click Here to get Document

Friday, March 05, 2004

DOAH find Jax Small Scale Amendment "Not in Compliance"

A recommended order issued today finds that a decision by the City of Jacksonville to adopt a small scale plan amendment that intensified land uses in a strip area from Office/Professional to Neighborhood Commercial conflicted with policies designed to discourage strip development, required NC designations to be in "nodes," and protect neighborhoods.

The Jax plan has a number of Policies designed to create integrated nodes and also to limit the intensity of development in strips to office/residential PUDs or TND developments; the RPI land use designation is the appropriate and consistent designation for development in these situations. Regardless, the City approved a change on a parcel that faces an arterial but is bracketed between commercial and other Insitutional designations for the more intense NC designation. The City argued that the "node" required by the Plan for NC designations was a "linear node" (read strip) that extended a 1/2 mile down the arterial from the major intersection. The Petitioners claimed that accepting this analysis or approach would destroy the distinction between nodes and strip and completely traverse the Plan's approach to discouraging problematic strip development.

The City also claimed that the NC designation was "more compatible" than the RPI because of the PUD that was to be placed on the property, and that the analysis of the consistency of the NC designation should take into account the restrictions on the of the property contained in the PUD ordinance and conditions (a truly, deeply and completely ridiculous position, as the City had to concede that different PUDs or land uses could be put on the property in the future).

The hearing officer rejected this and upheld the Petitioner's interpretation of the Plan's anti-strip development policies. "The purpsoe of a node is, of course, to concentrate commercial uses near an intersection and reduce the potential for strip development along arterial roads."

By all accounts, the City has been allowing the conversion of lands far from intersections not to the RPI designation allowed by the Plan policies, but the the NC designation, thereby allowing strips to proliferate throughout the City. Another policy - rejected by the 1st DCA in Dixon v Jacksonville -- [click here to download] -- allowed commercial development as a primary use in RPI-designated lands, despite the Plan's clear statement that commercial is to be used only as a limited secondary use in that land use designation.

Good Planning - 2; Bad Planning 0 - Maybe the citizens of Jacksonville will get some more consistent and better planned land use patterns out of this - and more truly mixed use development.

Here's a link to a PDF of the RO on the DOAH site: Heston et al v City of Jacksonville

Post Script - OK, so I normally don't post DOAH RO's in land use cases up here - but in this case I was the expert for the Petitioners and helped write the PRO. So I'm pleased.