Tuesday, April 27, 2004

Federal Law keeps City of Surfside from fining orthodox jews for daring to rent office space and pray

The 11th Circuit upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act in this opinion and held that it prohibits the City of Surfside from banning churches but not clubs and organizations from its business district.

I think the opinion bears reading for any land use attorney who might have to deal with onerous (facially or because of the local government's attiitudes) special exception requirements for locating churches, but what's really compelling is the story of Surfside's war on small Orthodox congregations using the Zoning Code and Code enforcement to try to run them out of town.

It's a truly scary thought that the search for "ratable" commecial uses would reach a point where a City would actually argue that allowing a small congregation to rent and use office space to hold services would harm the economic well-being of the community. So the lost sales tax on one or two offices is going to crush the City's finances? Please.

Monday, April 26, 2004

How NOT to litigate a takings case

The 11th Circuit released this opinion in a case where landowners sued the City of Fort Walton Beach in a s. 1983 action. The allegation is basically that city employees or officials came in at the request of a private party (HAS to be a neigbhor fight) and paved a section of their property.

For some reason they went to federal court with a 1983 claim for takings (under the public use clause) rather than suing for inverse condemnation in Florida court. Don't ask me why - you'd get more compensation in a Florida court case (full being atty's and engineers/appraisers) if you win than in fed court, and you could much more effectively litigate the title issues.

Moreover, the case is (as Matt C points out over at Abstract Appeal) a good exposition in how not to plead when trying to attach 1983 liability to a city or even to get the personnel on the hook personally.

Sunshine Violation - Apparent or Ad Hoc Advisory Group

All of us who deal with (or represent) government groups should read this case in which the 4th DCA found that a "pre-termination conference" conducted by the department head (as delegated from the County Administrator) with EOC and HR representatives was covered by Sunshine Law requirements.

Essentially, the fact that they met as a group and deliberated about the issue was enough to make it a body for Sunshine purposes, even though the department head retained the decision making authority and no county policy designated the "board" as a decision making group. The very convening of a group around the policy decision to terminate opened it to Sunshine.

This opinion will be big grist for the "development review committee" mill - LOTS of local governments use these informal meetings of department representatives to review and discuss proposals, and lots of them still try to find ways to keep them closed (ordinance grant all the authority to the County/City Administrator, or provisions that the committee doesn't vote, or requiring general meetings "with staff" and having it a "group meeting" at the convenience of the applicant). This opinion should drive home that if the DRC meets, and if it talks at all about the substantive decisions, actions taken subsequent will be subject to challenge if the meetings aren't open.

ONLY in the Florida Keys

Would you have this case, in which renters who had built illegal structures argued (with initial success) that the landlord had to eat the code enforcement violations they created and couldn't tear down their iillegal structures or terminate their leases.

Recreational vehicle parks get more pads per acre than traditional subdivisions would (at least they used to in the Keys). A few parks in the Keys had deals where folks could basically rent the pads year to year with renewal rights - originally folks up further north used them as weekend (if from Miaim-Palm Beach) or winter (if from snowy climes) places to park their campers. Over time folks just moved in big motor homes and started building porches, garages, and Tiki huts (ONLY in the Keys) etc., on them. Through the late 70's and early 80's this seemed like a pretty efficient way for the non-rich to enjoy a winter home in the Keys.

Bring in two big changes: economics - the park gets really valuable as development land if only the new owners can get rid of all these campers; and growth management - eventually Monroe County realizes it has a zoning problem and starts code enforcement actions against the park for the unlawful buildings.

So the new park owner tries to terminate the year-to-year leases on renewal for creating violations and the offending renters take them to court, arguing that because the old owner turned a blind eye, the new owner was basically estopped from enforcing the building code against them, even if the park owner was being fined.

What's amazing to me is that the case ends up turning not on the clear question of whether a landlord always has the right to demand that tenants not violate zoning regulations, but instead on waiver and estoppel arguments construing the renewal rights to the leases and the right to require compliance with the County codes via a requirement to follow Park rules. The Court ends up finding that the landlord could force them to leave based on non-compliance with the Zoning Code, but you really wonder why it would ever have to go that far :)

So what if you file that constitutional challenge in cert?

OK, so post-Omnipoint we know that you have to bring your constitutional challenges in a dec action. So what if you misfile them as a cert petition? Is it a crime against the R Civ P? Would it subject one to 57.105 sanctions?

Not according to the 3d DCA, which in this case , while it granted cert to the City on the basis that the claims were constitutional in nature, directed the lower court to treat the case as an original declaratory action on remand.

Monday, April 19, 2004

Florida Musings: Citizen Groups' Standing in Jeopardy (submitted by Terrell Arline)

OK - here's a cross-blog link to a post by Terrell Arline on Mike Morell's Florida Musings site regarding two recent cases that seem (haven't read the orders yet) to seriously threaten the ability of non-profit corporations to challenge plan amendments under 163.3184. This is a big deal because these corporate forms are one of the critical ways that local citizens can actually afford to fight land use battles (not only by sometimes being tax deductible, but also by providing a way to aggregate funds to pay an attorney without anyone risking serious tax liability).

I'll post later this week about another threat to public participation in the planning process - a recent final order from DCA under which local government's now aren't subject to compliance review for their public participation programs (or failure to follow them when adopting amendments).

Florida Musings: Citizen Groups' Standing in Jeopardy (submitted by Terrell Arline)

Sunday, April 18, 2004

Short term rentals as a non-conforming use

The 3d DCA issued this opinion the other day in Rollison v City of Key West. The 3d overturned a circuit court opinion that determined that the City could apply a later-adopted amendment to its zoning code to overturn an earlier staff/attorney interpretation that allowed short term rentals in a particular PUD so long as the unit was rented in this way for less than 50% of the year. The 3d found that her past rental practices constitute an existing non-conforming use and are therefore grandfathered against the new rules.

This case is important because it explores the boundaries of what is a "use" regulated by the zoning code and implies some significant limits on how local governments can use zoning (and code enforcement) to regulate or eliminate 'activities' (from rentals or adult entertainment) rather than their other regulatory powers when they want to regulate "activities" - especially established ones.

The owner before buying the unit had sought a determination from the City attorney that short term (1 week) rentals would be permitted under the applicable zoning and was advised of the "50%" rule above; the previous owner had engaged in the same behavior. Moreover, the City issued different types of Occupational Licensees for "short term" rental (which met the 50% rule) versus "transient" rentals (where units were rented for <28 days for more than 50% of the year).

The City then changed it's official position, adopted new definitions of transient accommodations that changed the definition and tried to apply that to Ms. Rollison's unit. A first attempt was overturned for failure to follow the zoning change notice requirements and when a the rules were adopted a second time, she sued for declaratory relief again, asking for a determination that the rental activity was a non-conforming use grandfathered under the zoning code.

The City won at the circuit court level and lost before the 3d. The City took that position that the interpretation was inconsistent facially with the ordinance, and the trial court apparently took the position that the Commission had to ratify the interpretation. The 3d held that the 50% rule was a permissible administrative interpretation of the language in the ordinance, that the City had officially adopted and applied that interpretation to Ms. Rollison and others over a period of time, and that rental activity consttituted a "use" that simply became non-conforming (and therefore grandfathered) after the new rules were adopted.

It shoudl be noted that local governments have in recent years done more and more to try to use the zoning code to ban activities that they deem problematic. They use the definition of "family" to try to control young people who rent a house together and may throw parties or otherwise act uncivilly. They ban parking work vehicles in residential zones as an "activity."

Why? Because zoning violations can be enforced through Chapter 162 code enforcement procedures that take place beofore a sympathetic Code Enforcement Board under procedures and processes that give the targeted homeowner far fewer protections than a criminal or civil procedure in county court. And the result, if successful, can create HUGE fines, far in excess of what they'd get under other approaches, that become liens on the property (especially if not homesteaded). And this also give them a hammer against rental property, as the unit owner becomes effectively liable for the actions of his or her tenants.

This decision indicates, however, that if local governments define an activity as a use, they also have to live the the protections that are given to non-conforming uses. Look to this defense being employed pretty widely - and then a new series of cases that test the limits of local government authority to end non-conforming uses without an amortization period.

Thursday, April 15, 2004

Just how does one exhaust another person's remedy?

The 2d DCA released an opinion yesterday that's another one that every land use attorney has to read.

Vanderbilt Shores et al v Collier County et al involved several neighboring condo associations who attacked the approval of a new building on the basis that the setbacks were too small. The issue was that the zoning district varies setbacks based on height, and the building was built with a big "step down" - as the 2d described it, the building is shaped like an upside down "T" with low wings and a high tower.

The neighbors won the technical interpretation battle but lost the war (so far). The court held that given the definitions of setback and yard, the lower wings encroached the setbacks required for the tall part of the building (read the opinion, Judge Northcutt does a good job of explaining). It rejected the County and the developer's argument that the County had discretion to interpret the setback requirement so as to allow the lower wing to have a less setback than the upper based on the clear language of the ordinance.


The court then went on to uphold the circuit court determination that the case should be dismissed for failure to exhaust administrative remedies. It held that the neighbors should have used two provisions of the zoning code; one that allows anyone to get an interpretation of the ordinance from the zoning official and then appeal it up - OK, maybe. But the court also held that the neighbors should have availed themselves of the provision in the code enforcement section that provides for complaints about violations.

I went and read the Collier Code (thanks again, Municode online!) on this. The Collier Code does allow anyone to ask for an interpretation and allows anyone to report a violation of the Code. It even is more liberal than some in its language in that it gives the County manager the authority to investigate ANY violation of the Zoning Code (not just a building already built) and stop it in various ways. And, like many or most LDR's these days, it allows the County Manager (or designee) a wide range of corrective actions, from injunction to criminal prosecution or the use of the Code Enforcement Board.

The problem may be jumping out at you -- while the code allows 3d parties to complain to the County Manager to try to get enforcement proceedings instigated, it doesn't give them any right to instigate action with the Code Enforcement Board or any other entity. The County Manager or County has complete discretion in whether it acts in any way on a complaint. So the actual remedy for a discovered violation belongs to the County, not to the aggrieved third party.

So, I don't know exactly how or why a neighbor should be forced to exhaust an enforcement mechanism that in no way allows the neighbor to directly instigate action or to be a party to any action that is taken after the complaint. So there's no administrative remedy available to the neighbor there. And my recollection of the exhaustion doctrine (which could be faulty) is that you only have to exhaust procedures that can provide a meaningful or complete remedy. Somebody out there - tell me if I'm wrong - are there cases out there that hold that you have to exhaust remedies that only allow a 3d party to act for you?

What's distressing about this as well is the prospect that in order to take any complaint about a facial violation of a zoning code (which under Florida law is a public nuisance, remember) to court, you'll first have to go to code enforcement, and if they don't think you're right, go to the zoning administrator, appeal to the BZA, go back to code enforcement or the County manager and then appeal or attack the manager's decision regarding whether or not to act. Not a good case for neighbors.

OK, so I'll renew another call I made a long time ago: in addition to a "local government APA" with rules for review, etc., we need a LUBA (land use board of appeals) - maybe a special division of the 1st DCA - to hear these appeals.

Happy April 15th!

Monday, April 05, 2004

FAPA - Bill Tracking Reports

Here's a link to the Florida Chapter of the American Planning Association's (FAPA) Bill Tracking Reports. It's useful for anyone who is interested in following the progress of any of these bills but who doesn't get the info automatically.

Another GM Bill - I don't understand this one at all

Running through the Senate - with a House bill accompanying it - is this (CS/CS SB 0162) that would "vest" development orders whose time for appeal/attack had run if the LDR that the DO was issued under was later found invalid.

I can't think of many situations in which a DO issued under the color of a valid LDR would later be rescinded because the LDR was found to be void (or voidable?).

Here's the language:
(13)(a) If a local government grants a development
18 order pursuant to its adopted land development regulations and
19 the order is not the subject of a pending appeal and the
20 timeframe for filing an appeal has expired, the development
21 order may not be invalidated by a subsequent judicial
22 determination that such land development regulations, or any
23 portion thereof that is relevant to the development order, are
24 invalid because of a deficiency in the approval standards.
25 (b) This subsection does not preclude or affect the
26 timely institution of any other remedy available at law or
27 equity, including a common law writ of certiorari proceeding
28 pursuant to Rule 9.190, Florida Rules of Appellate Procedure,
29 or an original proceeding pursuant to s. 163.3215, as
30 applicable.

The bill then goes on to make this retroactive to January 1, 2002.

I can only think that "deficiency in the approval standards" means that the LDR is void for vagueness and that this is some kind of fix for the situation that some of the amicus in Omnipoint complained of - that the questions the 3d DCA created regarding the validity of Dade County's non-use variance standards were dramatically affecting the ability for projects to go forward. Here's one of the Omnipoint briefs.

If anyone out there has other insight into the problem or situation that this bill is trying to solve, I'd love to hear about it.

Sunday, April 04, 2004

Growth Management II: Yet another GM study commission

In the never-ending quest by the Legislature to either fix or gut growth management (depending on your view and the particular bill that's running in any given year), there's a bill to set up another growth management commission - Here's the text.

It's pretty much the same fare as past commissions - 15 members, 5 appointed by the Pres of Senate, Speaker of the House and the Governor. There's room for an executive director, travel money for members and committe members, and authorization for consultants. But only $300,000 budget.

I just wish that we'd get one of these commissions to focus on process rather than trying to "fix" the outcome. Here's my wish list:

1) A land use board of appeals like Oregons to speed up decisions and make them more consistent.
2) A single statute providing basic administrative procedures requirements for local governments and for effective judicial review of them (including something that gives the circuit court powers like the District Courts have in Chapter 120.68 proceedings). Include some basic evidence standards and a consistent way to address bias issues in local decisionmaking. Require written opinions of all staff processes, even when they only make recommendations to another decision maker.
3) Tie the consistency review into the above so there's one consistent form of review for rezonings, special exceptions, etc.

This kind of approach would address review standards and the gross levels of discretion that local government adminstrative actors enjoy today to the detriment of both the development community AND neighbors/environmentalists, etc.

Growth Management in Legislature I: Bennett's DRI Bill

The Sarasota Herald-Tribune had this editorial today dinging the this DRI bill that's been working through the Senate. The bill would do a number of things that are problematic to most growth management advocates, espcially raising the DRI threshold for residential development in rural counties (where the plans, LDRs and staff are far more limited) where DRI review is considered the only way to get effective, integrated treatment of environmental and infrastructure issues.

This is one to follow during the waning weeks of the session, because if it gets cleaned up enough to get past the editorial board response and gets more traction, it could end up being a train for other "helpful" growth management legislation.

Saturday, April 03, 2004

Special Districts and Validated Assessments

The 2d DCA entered a decision last month in a long-contested battle between landowners within a special district and the district to force the district to repay special assessments (for maintenance and capital improvements) - Spring Lake v. Tyrell (Spring Lake II).

Here's the interesting thing about these cases: despite the fact that ALL of the parties agreed that none of the improvements made by the District would benefit the plaintiffs' properties, the DCA in Spring Lake 1 had held that the capital improvements portion of the assessment could not be refunded because it had been part of a validated bond.

SO - if a District (of any kind - or a local government) validates a bond for special improvements backed by special assessments against all of the properties in the District and then doesn't construct improvements that benefit some of the properties, the burdened but not benefitted properties can't escape the assessments. Doesn't seem right to me - assessments should be re-worked against the benefitted properties instead. But that's not the law, now.

This is the ONLY case I found that's dead on this point.

Maybe I'm over-reading the precedent and there's some specific aspect of how these bonds were validated that created the result, but I don't think so.

Love to hear any comments on this one.

Charitible exemption: partial year ownership by charity doesn't exempt property from tax

Dealing with property tax challenges is the kind of thing that land use lawyers sometimes get pulled into on behalf of clients (I know that I did once). Florida's rules on when real and personal property are exempt from ad valorem taxes are a bit vague and there's surprising little caselaw on it. Here's a case which holds that because real property taxes are levied based on the use as of January 1, a property bought by a non-profit, charitable entity after that date (and put to charitable use) is still taxable: Jim Smith v American Lung Ass'n

Friday, April 02, 2004

BTW on Code Enforcement and the Deland article

At the end of the article on challenges to Deland's enforcement of it's "2 unrelated people" limit for families, there was a statement that after June 1 the City would be able to asses their $500/day fines without any further hearings. This isn't really the case.

Those of us who've had to deal with Chapter 162 on Code Enforcement probably have a lot of comments on the limitations of the statute. But it appears that a lot of people are unaware of Massey v. Charlotte County, 842 So. 2d 142 (Fla. 2d DCA 2003) (here's the original 2d DCA original opinion) . It held that the statute has to be interpreted so as to require the Code Enforcement Board (or whatever it's called locally) to hold a hearing to confirm that a violation is ongoing and make the findings required by the statute before actually levying a fine. And while it gave the local governments a lot of wiggle room on the actual process, it makes it clear that there must be one.

Moreover, given that the decision basically says that this is a fundamental due process question, I think there's a strong argument that it applies to any code enforcement action and fine that hasn't yet been finalized into a lien.

Love to hear any war stories from folks who have used this decision to get a hearing from a CEB or against fines that have been levied in contravention to it.

Abstract Appeal on Tampa Housing v Burton

Matt Conigliario is an apellate attorney (with a well known Tampa firm) who keeps a very good blog on happenings in Florida appellate law. Here's his review of the Tampa Housing Authority v. Burton case I posted yesterday:
Abstract Appeal -- April 2, 2004

This is one of my daily reads.

Thursday, April 01, 2004

Deland's attack on non-traditional families and the problems of Code Enforcement

One of the more common and problematic features of zoning codes/land development regulations is (yes, the verb modifies "one" in this case) the definition of family. Or, more to the point, the inclusion of restrictive definitions of family to define just who can or cannot live in a given dwelling unit.

Thanks to Matt Conigliaro of AbstractAppeal.com for finding this story about how Deland has adopted and is trying to enforce a definition of family that allows only two (yes, two!) unrelated persons to live in a single dwelling unit. The City is prosecuting landlords who rent to more than two college students at a time.

Here's the actual definition (thanks, MuniCode!) of familyfrom the Deland LDRs:

(98) Family means any one of the following, when living together in a dwelling unit or using it as a common place of abode for 30 days or more in any three-month period:
---A natural family of one or more persons who are all related to each other by law, blood, marriage or adoption.
---Six or fewer persons living together in a facility which is licensed by the Department of Children and Family Services in accordance with § 419.001(2), Florida Statutes, or registered under § 409.176, Florida Statutes, or a substantially equivalent statute.
---A maximum of two unrelated persons, together with their natural family who are related to each other by law, blood, marriage or adoption.

Apparently the attacks on the current code efforts are based on discriminatory enforcement, but I think that all of these definitions have to fall either on privacy grounds (in Florida) or on vagueness grounds (that go to discriminatory enforcement).

This, on its face creates some rididulous levels of interference. Presumably, the last provision is intended to allow "Kate and Allie" situations - two single moms, with their kids. But that's not really what it says - maybe. It might also only be intended to cover situations where an unmarried mother and father have kids (the their covers only situations where the 2 people who are unrelated are related to everyone else). If not, the parsing problems get completely out of hand:

--A couple might not be able rent a room to a single person - there are then two related people but also two unrelated people (t/p to husband; t/p to wife). If the "their natural family" is understood broadly, then the couple could take in a single renter and maybe allow a second couple to rent (two related groups?). But if so, then you get into really nasty territory.

--What if the couple is gay? Then if they rent a room to a friend, it's three unrelated (by law) people. So gay couples are discriminated by this definition on its face.

And now lets get really on it. Does fosterage or guardianship create a relation "by law"? So if a couple takes in a foster kid, ok. If they have a child of their own, not OK? If they take on a second foster child, not OK?

And then what about gay couples and families? Two women live together - OK initially. One woman has a child with the second - Florida law doesn't allow the second woman to adopt the child. Whoops, three unrelated people?

Pretty quickly you get to a situation where almost any dwelling unit with 3 adults in it is suspect and almost any group of more than four people could be requried to demonstrate on demand that they are a proper family.

-- Two brothers and their best friend live together. To avoid being cited, the brothers have to keep their birth certificates around? (is this a violation anyway because the 3d person is unrelated to 2 others?)
--Same with the family with one child that takes in a foster child - do they need to keep their marriage certificate plus the birth certificate around to prove that the three people are related? And if they take in a child of a friend - is this too many unrelated people?
-- A couple invites the sister of one to come live with them - do they need to have their marriage license available at all times to show the nosy cop or code enforecment person? And if the couple is gay, they can't produce the relevant documents and are violating the ordinance where a straight couple would not be.

On its face, enforcement of the family definition adopted by DeLand (and by many other local governments) demands scrutiny into relationships that are protected under Art. I, s. 23. It also gets the enforcement people into deep trouble immediately Who gets cited and who doesn't? what proof is needed to avoid a citation if a neighbor complains? How could a field officer ever consistently determine what information will or won't be sufficient for the occupants to avoid a citation?

The City's valid interest in avoiding overcrowding can be handled through regulations that address how many people per bedroom you can have in a dwelling unit or similar inquiries that don't rely on the highly suspect inquiry into who counts as a family member.

Good luck to the attorneys who are fighting this one!

More cert confusion - and a simple remedy

The 2d DCA released a case last week that demonstrates just how convoluted the standards of review are in cert cases. The case involved an eviction trial by the Tampa Housing Authority. At the end of the trial the tenant lost and moved to set aside the judgment. The judge issued an order for a new trial - sua sponte - on the basis that one of the jurors had slept through parts of the trial.

Cert to the circuit court ensued and the Housing Authority lost.

Cert to the 2d ensued and the Housing Authority lost again - Tampa Housing Auth v Burton

What's interesting is to compare the court's analysis here with the analysis in the recent Sarasota County case. Ulitmately, the court found that because the result of the order was the Authority would still get its (second) day in court, there wasn't any fundamental miscarriage of justice - here's the scary paragraph:

Unlike application of incorrect law, misapplication of correct law by a circuit
court sitting in its appellate capacity generally does constitute a violation of clearly
established law resulting in a miscarriage of justice. Ivey, 774 So. 2d at 682. Thus,
even if there is legal error in the circuit court's decision that the trial court did not abuse
its discretion in granting a new trial, we are unable to conclude that this is one of "those
few extreme cases where the appellate court's decision is so erroneous that justice
requires that it be corrected." See Combs v. State, 436 So. 2d 93, 95 (Fla. 1983).

So, essentially, the 2d DCA is saying that in the case of 2d tier cert review, circuit court errors in applying the law should only be corrected if the are SO erroneous that justice requries them to be fixed. But that's not really consistent with what happened in Sarasota, where the effect of the circuit court's quashal of the denial of the rezoning wouldn't have been to force the County to rezone the land, but to require the County Commission to re-open the hearing and redecide the matter based on the application of the correct law (e.g. just the plan as it existed on that date) and also to apply the proper facts.

What we really come to is that the whole "miscarriage of justice" type argument on 2d tier review - which technically applies to first tier review as well - has produced what amounts to unfettered discretion on the part of courts faced with a petition for cert to deny them on completely subjective grouds, regardless of how badly screwed up the proceeding or determination was below.

The fix? Really simple: the LEGISLATURE should provide a uniform basis for APPEALING local administrative determinations to circuit courts. It should provide for appeals from quasi-judical decisions with the same remedy provisions as are found in 120.68 (so the court can actually get the situation fixed), and for de novo review of local administrative decisions that don't have the full panolply of due process protections from the local government. It could provide for expedited discovery and adminstrative type rules of evidence in the latter cases to speed the process and lessen the expense; it should also allow the circuit court to refer those de novo cases to a special master for determination. Then we'd get much more consistent review for legal error and a clear and consistent set of playing rules for all.