"may" language in delegation almost per-se unconstitutional

In the 3d DCA's Omnipoint I opinion, 811 So.2d 767 (3d DCA 2002) , Judge Fletcher determined that Dade County's "unusual use" variance language was unconstitutional based on the subjective criteria provided. That part of the opinion was invalidated by the Florida Supremes in Omnipoint II - 863 So. 2d 165 (Fla. 2003) (3d shouldn't have taken up this argument on its own), and it was not addressed by the 3d on remand.

So the Omnipoint holding on the vagueness issue is largely a footnote, since the court didn't have the right to reach it. A number of folks have questioned it, given other decisions on the vagueness issue that permitted, well, really really subjective and vague delegations, even in a quasi-judicial context. In particular, in the land use context, we have Life Concepts v Harden, 562 So. 2d 726 (Fla. 5th DCA 1990), Alachua v. Eagle's Nest, and the most recent Cap's on the Water Inc. v St John's County, 847 So.2d 507 (Fla. 5th DCA 1993).

The last case rejected a vagueness challenge involving a conditional use/special exception against a completely standardless delegation to grant special uses. The core delegation provided and the lower court opined:

Specifically, section 2.03.01- A, entitled "Limitations on Special Uses," provides: The Planning and Zoning Agency may adopt conditions on any Special Use approval; any such conditions shall be stated in the final order of the Planning and Zoning Agency granting the Special Use. The ordinance places no limits on the discretion of the Planning and Zoning Agency (the "PZA") to adopt conditions for the special use approval. Read alone, this provision would not pass constitutional muster because the PZA could arbitrarily impose on any applicant any condition that it chose to impose.

The District Court went to the intent section, and upheld the ordinance based on this DEFINITION of the special use:

Special Use: Means a Use that would not be appropriate generally or without restriction throughout a zoning division or district but which if controlled as to number, area, location, or in relation to the neighborhood, would promote the
public health, safety, welfare, morals, order, comfort, convenience, appearance, prosperity, or the general welfare. Such Uses may be permissible in a zoning classification or district upon the granting of a Special Use and meeting the requirements of this Code.

The court cited Life Concepts as approving this kind of approach and language. So the Omnipoint I decision ran contrary to the trend (however wrong the trend may be).

In the last couple of months, however, two decisions may re-establish the vagueness doctrine as a meaningful requirement of delegatory ordinances.

The first is the Florida Supreme Court's decision in Bush v Schiavo, issued Sept 23. and available here. The decision has one of the best overall reviews of the entire vagueness doctrine and the separation of powers you'll ever read. It then agrees with the circuit court's determination that the statute unconstitutionally vested legislative power with the Governor:

In this case, the circuit court found that chapter 2003-418 contains no
guidelines or standards that “would serve to limit the Governor from exercising
completely unrestricted discretion in applying the law to” those who fall within
its terms. The circuit court explained:

The terms of the Act affirmatively confirm the discretionary power
conferred upon the Governor. He is given the “authority to issue a one-time stay
to prevent the withholding of nutrition and hydration from a patient” under
certain circumstances but, he is not required to do so. Likewise, the act provides that the Governor “may lift the stay authorized under this act at any time. The Governor may revoke the stay upon a finding that a change in the condition of the patient warrants revocation.” (Emphasis added). In both instances there is nothing to provide the Governor with any direction or guidelines for the exercise of this delegated authority. The Act does not suggest what constitutes “a change in condition of the patient” that could “warrant revocation.” Even when such an undefined “change” occurs, the Governor is not compelled to act. The Act confers upon the Governor the unfettered discretion to determine what the terms of the Act mean and when, or if, he may act under it.

We agree with this analysis. In enacting chapter 2003-418, the
Legislature failed to provide any standards by which the Governor should
determine whether, in any given case, a stay should be issued and how long a
stay should remain in effect. Further, the Legislature has failed to provide any
criteria for lifting the stay. This absolute, unfettered discretion to decide whether to issue and then when to lift a stay makes the Governor’s decision virtually unreviewable.

A few weeks later, in this opinion in Dep't of State v. Martin, the 1st DCA struck s. 101.253(2) of the elections act, under which the Secretary of State had refused to remove a candidate's name from the ballot when the candidate withdrew in favor of another. The critical provision states "The Department of State may in its discretion allow such a candidate to withdraw . . . " The Circuit Court found that this was improper and the 1st DCA agreed.

Both opinions cited the following language from Lewis v. Bank of Pasco County, 346 SO. 2d 53, 55 (Fla. 1977):

The legal principle guiding the Circuit Judge in this case and which is
dispositive of the issue under consideration is so well knows as to be deemed
"hornbook" law. This Court has held in a long and unvaried line of cases
that statutes granting power to administrative agencies must clearly announce
adequate standards to guide the agencies in the execution of the powers
delegated. The statute must so clearly define the power delegated that the
administrative agency is precluded from acting through whim, showing favoritism,
or exercising unbridled discretion.

Under these decisions, local ordinances which provide that a local actor or board "may" grant variances or other permits if criteria are met are flat-out invalid. Either they must be interpreted as requiring the action or the entire provision must be struck. Clearly, the language upheld in Cap's doesn't meet this test, and the earlier decisions in Life Concepts and Eagle's Nest should be viewed as having been over-ruled by implication.

Moreover, the recent decisions in Schiavo and Martin should revive the entire notion of and demand for clear and unambiguous standards in land use ordinances. Here are some particular targets:

• Special use/condition use or variance procedures like the ones at issue in Omnipoint and Caps. Where the standards are "in the public interest" or "excessively burden," etc., the ordinances should be struck.
• Comprehensive plan provisions like Goals providing for "gradual and orderly growth" or the similar language that was upheld as a basis for denying a permit in the Eagles Nest case. This is a particular problem today because of the courts' liberal quotation of the Machado decision to apply all of the goals, objectives and policies of a local comprehensive plan to a development order, regardless of how vague (people forget that Machado dealt with review of a legislative rezoning rather than and administrative/quasi-judicial action).

So maybe Judge Fletcher had the right analysis of the ordinance in Omnipoint - but in the wrong case.