Thursday, June 24, 2004

[edited] Very weird - a denied comp plan amend not "fairly debatable" based on record at public hearing

[this is edited after a reread of the decision]

Woo, fella!
The 2d DCA released this opinion - 2/1 with a concurrence - finding that the City of Bradenton Beach's denial of a plan amendment from "preservation" to "Res-3" was not fairly debatable.

It appears that the landowner took the position that the original designation was in error and proved - to the satisfaction of the appeals court if not the circuit court - that no reasonable person reviewing the record would find otherwise.

It seems that the circuit court held a de novo hearing and found for the City based on the record there. But the majority opinion held that the record shows that the decision was "not fairly debatable" based on the record that was before the City Commission at the adoption hearing.

While this would be the right approach if the court was reviewing the plan for compliance with Chapter 163 (consistency w/statute & rule), I don't think it's right if the essential challenge is whether on a constitutional basis the Commission erred. There, the City should be allowed to introduce "post hoc rationalizations" (as Charles Siemon once called them) to justify the action.

(BTW - this is one of the most critical benefits to everyone from the Snyder decision, with all its limits. It's the record before the Commission, not some later discovered reason, that's valid. And it's why the absence of findings in those cases weakens the decision so badly.)

Monday, June 21, 2004

DOT strategy to require fights over experts?

It looks like DOT has lost a series of cases in which it tried to fight the payment of the condmenee's expert witness fees, then tried to avoid paying the attorney's fees for the hearings required to establish and collect those fees. No less than three cases in the 2d DCA over a 2 month period:
EPIC v DOT - March 5
Ruby Robbins v DOT - March 24
Bay III v. DOT - June 4

Plus a 1st DCA case on the same issue - DOT v. Nassau Partners, 29 Fla. L. Weekly D 1330 (1st DCA June 3)

It's kind of difficult to think that the DOT didn't establish a concerted strategy of trying to squeeze folks who fought them in the condemnation proceedings or to accept lower settlements for the costs.

Tuesday, June 15, 2004

Sign companies don't always win

The 11th rejected an attempt by a sign company to require the permitting of an otherwise non-conforming sign because of the constitutionally defective procedures in the ordinance, when the ordinance was amended immediately after the defects were pointed out to address the constitutional infirmities when the application was made and was in fact amended before motion for summary judgment. Here's the opinion.

What's interesting here is that earlier 1st amendment cases on signs seemed to indicate that an ordinance that discriminated against types of speech or didn't effectively bridle the discretion of the administrator were void to prevent the erection of the sign. That is, if the ordinance was infirm, the local government lacked the authority to deny the permit (even on construction, size, location or other less problematic grounds). This case seems to hold that when the objectionable parts are severable, there's no automatic order to issue the permit.

That being the case, the Court found that because the City amended the ordinance to make it constitutional, AND there was no likelihood that it would go back to unconstitutional procedures or discrimination, the case was moot.

Too Much Irony - US Supremes on Pledge

OK, it's completely outside land use law, but I can't help but post a link to the US SCT's decision yesterday on the Nerdlow case - here's the link. In case you haven't heard, five justices, including all of the "liberal" wing held that the father didn't have standing to bring the challenge to "under God" in the pledge because the daughter's education was placed with the mother in their custody agreement.

Here's a link to the NY Times coverage.

Here's a link to the St. Pete Times' coverage.

Supremes reject Coastal Petroleum Takings

Yesterday, the United States Supreme Court left intact a Florida state court decision that rejected property rights takings claims when the high court denied a plaintiffs' cert. petition involving offshore drilling in this opinion.

Thanks to Ralf Brookes for passing this one one to me.

Saturday, June 12, 2004

Important sovereign immunity case -

The Florida Supremes issued an opinion Friday that is a MUST READ for everyone who deals with government agencies. In this opinion, the court held that FHP does not owe a duty of care to either remove stranded vehicles from the highways, OR to actually dispatch (and promptly respond)troopers based on a 911 call.

I won't go through the whole case, but I believe it to be one of the most lucid decisions laying out the analysis of the waiver of sovereign immunity I've ever read. It clearly lays out the path that the courts should take in getting to the operational vs. policy/planning level (it's after you'd find a common law duty in a non-governmental agency), and it clearly lays out the governmental duties have to flow from the established statutes and rules rather than internal operating policies (unlike civil rights cases, which go past sovereign immunity in most instances though not always the 11th amendment).

I also think that opinion lays out a better bright line than most of the sovereign immunity cases. The dissent by Justice Pariente (joined by Quince) also does a very good job of describing an alternative view of the duty issue that would have resulted in liability.

And there's a great set of string cites to cases finding liability for failure to maintain or properly operate governmental facilities.

Monday, June 07, 2004

Cutting off evidence from one side a DP violation

In another interesting case from family law, the 2d released this opinion - quashing a circuit court decision in a "shelter" case.

Essentially, the judge cut off the father during the informal hearing provided for by statute and rule, and didn't allow him to enter evidence. Rationale: 1) he was allowed to rule on written or hearsay evidence, and 2) "we don't do 3 hour shelter hearings here."

Gosh that sounds like the rationale that county/city commissioners (or actually the local government attorneys) use to justify using non-competent records (non-sworn or cross examined testimony or documents received by the planning department or planning commission) and limiting the time that an application - or 3d party - gets to present their case.

The 2d analysed this petition as one that implicated due process and held that even though the language of the rule was permissive in terms of the evidence the judge could consider, the statute was clear that every interested party could introduce evidence at the hearing. It held that:

Section 39.402 and rule 8.305 afford parents due process in judicial
proceedings in matters involving the State's temporary removal of children from the
home. In this case, the circuit court erred by disregarding the statutory and rule
provisions affording the parents a right to be heard and to present evidence at the shelter

So - here the judge erred in not interpreting the statute and rule so as to preserve the due process provided. But court clearly is holding that the failure to properly interpret the statute was a due process violation.

Implication? Where due process rights are implicated, you can't scimp on the right to be heard, even if due process allows a "less formal" hearing. I believe that commission rules that limit one side (or the other) to 20 minutes in a rezoning hearing - or 5 minutes to opponents - violate the right to be heard and to present evidence. If the commissions don't want to provide a proper due process hearing, let them use hearing officers.

Oh - that goes for the Gov and Cabinet, too, when they sit in an adjudicatory role.

Supremes: "normal" judicial review may be OK for adult licensing schemes

The US SCt release this case from Littleton, CO, that involved a facial challenge to an "adult materials" licensing scheme on the basis that it did not make adequate provision for a prompt judicial determination.

While the City argued that all that was required was a prompt avenue for judicial review, the Court held that prompt judicial determination is critical. However, it also found that the standard review procedures available were sufficient in the case of that ordinance, at least to survive a facial challenge. Factors supporting the decision included:
1) standard rules of procedure covered the issue
2) the standards in the ordinance were objective and therefore appropriate for easy judicial determination
3) there was no reason to believe that the courts would not recognize the constitutional need for a prompt determination and deport themselves appropriately; and
4) there was always the avenue of a 1983 suit in federal court should an as-applied challenged require it.


Yes, the US Supreme Court held that the federal court supervision of the state courts was available and a supporting factor in why specific legislation covering state court review might not be required.

And the Court also seemed to be saying that discretion in an ordinance (at least where the 1st amendment is implicated) would demand strengthened provisions for judicial review. While this is 1st amendment via 14th and not the 14th itself, one must wonder whether the court would buy the wholesale extension of the post-Roth cases like McKinney to traditional as opposed to new property. If the Supremes start recognizing that discretion in local regulatory ordinances is a key source of discriminatory enforcement, I think we'll see movement on this front.

Finally - one has to wonder whether the Supremes would have analyzed the review question the same way if the case came from Florida, where local administrative decisions can only be reviewed by cert (because of the Legislature's continuing failure to live up to its Article V implementation duties and provide for the review of local administrative decisions by general law) and cert is "kinda discretionary" in terms of standards, etc - AND there's no general way for the proper appellate courts to supervise the cert jurisdiction of the circuit courts. Think about it: today, if a circuit court judge wanted to sit on a cert petition for 2 years, there's no procedural way to force her to disgorge a decision. Some courts even use a "miscarriage of justice" standard (created more or less from whole cloth) to dismiss petitions that may be well founded in the law. That is, the line of cases (that historically applied to lower courts, not lower administrative tribunals) that held that the courts wouldn't use cert to correct "mere legal error" in the proceedings or outcomes argues strongly against applying this decision to them.

Happy litigating, everyone!