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
Petitioner_reply..pdf

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?