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.)

No comments:

Post a Comment