Very Important Decision on Initiating Certiorari Review

A must read for all land use litigators:

In Concerned Citizens of Bayshore et al v. Lee County & US Homes, et al, here's the opinion, the 2d DCA did us all a favor by clarifying a few key issues in initiating certiorari review.

Concerned Citizens filed a cert petition challenging a rezoning granted to US Homes, but did not name US Homes as a party (in the caption) or serve them within 30 days. US Homes moved to dismiss for failure to name an indispensable party and the trial court granted the motion, even though petitioners were willing to amend to name US Homes, and had served them by mail.

WRONG. Under a number of cases (cited in the opinion), the landowner is not an indispensable party, as the opinion correctly points out.

But the opinion went beyond that and held that R Civ P 1.630 governs the caption, parties and service of a common law cert petition, not R. App P. 9.100 (b) -- which as near as I can tell was a case and opinion of first impression, even though the rules have been around for a long time. Under that rule, you file your writ (and record), and if the petition sets forth a prima facie case, the court enters a "summons," which then must be served as provided by R. Civ. P. 1.080 (b) (the general service by mail, hand, fax rule - rather than the service of process rule). The comment to R. 1.630 indicates that if the record isn't available, the petitioner may request additional time to file it - a position held in case law under the appellate rules, but not explicit.

One reason this is important is that R. App. P. 9.100 (b) provided that all parties to an action below are to be named as respondents; this created the petard on which the court hoisted Citizens in the action below.

But the court went even further and noted that R. App. P. 9.100 (f) does apply and that US Homes was a party respondent under R App. P. 1.020 (g)(4), and therefore entitled to participate with or without service by Citizens. NOTE: this implies that anyone who participates in a quasi-judicial hearing and establishes a record basis for standing (common law/special injury or by local ordinance) can pile into a cert case as a respondent - even if they're actually supporting the petitioner, and be a party regardless of the caption and initial service.

The opinion does leave a couple of critical holes: first, whether cert petitions, responses and replies are governed for length, format, etc. by F R App P 9.100 f-l; for example, is the "record" that must be transmitted according to R Civ P 1.630 an "appendix" as required by R. App. P. 9.100(g)? So we still have a ways to go before all of the kinks are worked out.

I've been very frustrated by a number of PCA/PCD opinions from the 2d that dodged important issues and was afraid that the court was going to do that in this case as well (I know all of the private party litigators in this one, so knew about the case). So, thanks to the panel and the court for issuing an opinion that clarifies and simplifies what had emerged as a bit of a trap for petitioners in this area. It's a MUST READ.

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Just for fun, here's the text of the appliable rules:

RULE 1.630. EXTRAORDINARY REMEDIES
(a) Applicability. This rule applies to actions for the issuance of writs of mandamus, prohibition, quo warranto, certiorari, and habeas corpus.

(b) Initial Pleading. The initial pleading shall be a complaint. It shall contain:
(1) the facts on which the plaintiff relies for relief;
(2) a request for the relief sought; and
(3) if desired, argument in support of the petition with citations of authority.

The caption shall show the action filed in the name of the plaintiff in all cases and not on the relation of the state. When the complaint seeks a writ directed to a lower court or to a governmental or administrative agency, a copy of as much of the record as is necessary to support the plaintiff’s complaint shall be attached.

(c) Time. A complaint shall be filed within the time provided by law, except that a complaint for common law certiorari shall be filed within 30 days of rendition of the matter sought to be reviewed.

(d) Process. If the complaint shows a prima facie case for relief, the court shall issue:
(1) a summons in certiorari;
(2) an order nisi in prohibition;
(3) an alternative writ in mandamus that may incorporate the complaint by reference only;
(4) a writ of quo warranto; or
(5) a writ of habeas corpus.

The writ shall be served in the manner prescribed by law, except the summons in certiorari shall be served as provided in rule 1.080(b).

(e) Response. Defendant shall respond to the writ as provided in rule 1.140, but the answer in quo warranto shall show better title to the office when the writ seeks an adjudication of the right to an office held by the defendant.

Court Commentary
1984 Amendment. Rule 1.630 replaces rules and statutes used before 1980 when the present Florida Rules of Appellate Procedure were adopted. Experience has shown that rule 9.100 is not designed for use in trial court. The times for proceeding, the methods of proceeding, and the general nature of the procedure is appellate and presumes that the proceeding is basically an appellate proceeding. When the extraordinary remedies are sought in the trial court, these items do not usually exist and thus the rule is difficult to apply. The uniform procedure concept of rule 9.100 has been retained with changes making the procedure fit trial court procedure. The requirement of attaching a copy of the record in subdivision (b) may not be possible within the time allowed for the initial pleading because of the unavailability of the record. In that event the plaintiff should file a motion to extend the time to allow the preparation of the record and supply it when prepared. The filing of a motion to extend the time should be sufficient to extend it until the motion can be decided by the court.

RULE 1.080. SERVICE OF PLEADINGS AND PAPERS
(a) Service; When Required. Unless the court otherwise orders, every pleading subsequent to the initial pleading and every other paper filed in the action, except applications for witness subpoena, shall be served on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them shall be served in the manner provided for service of summons.
(b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Service on the attorney or party shall be made by delivering a copy or mailing it to the attorney or the party at the last known address or, if no address is known, by leaving it with the clerk of the court. Service by mail shall be complete upon mailing. Delivery of a copy within this rule shall be complete upon: (1) handing it to the attorney or to the party, (2) leaving it at the attorney’s or party’s office with a clerk or other person in charge thereof, (3) if there is no one in charge, leaving it in a conspicuous place therein, (4) if the office is closed or the person to be served has no office, leaving it at the person’s usual place of abode with some person of his or her family above 15 years of age and informing such person of the contents, or (5) transmitting it by facsimile to the attorney’s or party’s office with a cover sheet containing the sender’s name, firm, address, telephone number, and facsimile number, and the number of pages transmitted. When service is made by facsimile, a copy shall also be served by any other method permitted by this rule. Facsimile service occurs when transmission is complete. Service by delivery after 5:00 p.m. shall be deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday.

A Search and Seizure Opinion (Relevant to Land Use) So Bad It's Terrifying - and Ethical Limits Prevent Me From Saying What I Really Think

As an attorney, I have an ethical obligation not to disparage courts or judges in a manner that is prejudicial to the administration of justice. That obligation doesn't prevent me from criticizing bad opinions, but does require me to avoid overheated rhetoric.

This opinion from the 4th DCA, in Vaughn v. Dep't of Agriculture et al, tests my self-control. The 4th upheld a trial court's dismissal of s.1983 damage claims against individual inspectors of the Dep't of Agriculture and a Broward County Deputy Sheriff. The inspectors invaded Vaughn's property without a warrant and had him arrested for demanding one. They tore down sections of Vaughn's fence and gate, cut down and ground his citrus trees, and had him arrested for objecting to this. The Deputy handcuffed and arrested Vaughn for insisting that the inspectors needed a warrant to enter his property.

The 4th, INCREDIBLY, (see Judge Farmer's dissent, which got the law right) found the inspectors and deputy entitled to immunity on the basis that the law requiring a warrant to engage in these activities wasn't sufficiently clear to justify maintaining suits against the individuals. The majority basically takes the position that until a specific law, regulation or practice has been specifically found to violate the Fourth Amendment (or presumably any other constitutional right), you can't hold an executive actor personally responsible for violating that right. This is a gross distortion of the underlying doctrine from Harlow v. Fitzgerald, and an even worse interpretation of the relevant 4th Amendment rulings.

Basically, this decision completely destroys any integrity to the Fourth Amendment. Sure, any evidence that the officers got through this invasion would be excluded from a criminal proceeding - creating an institutional incentive not to invade and abuse Fourth Amendment rights. Sure the Department and Sheriff's office are still on the line. But without individual liability and responsibilty, there's no reason for the actual perpetrators of what the court agreed was a constitutional violation to avoid those violations. In other words, watch out - cops, code enforcment officers, anyone with the "color" of authority has free reign to break down your fence, arrest you, and generally abuse you, and you have no action against them personally. Where's the disincentive for these folks to abuse you?

It's also telling that in some 4th amendment cases, the courts have limited the scope of the exclusionary rule, in part based on arguments that personal liability for abuses would provide a deterrant to the bad conduct without the social penalty of allowing a criminal to go free. So the constitution now gets squeeezed from both sides.

The "the law said I could" argument didn't fly at Nuremburg for German sargents who abused the human rights of Jews and others, but apparently it's good enough for American agriculture inspectors and deputies. While invading someone's property and cutting their trees down doesn't in any way rise to the same level of human rights abuse that the Holocaust represents, if these administrative and law enforcement officers don't respect the 4th Amendment, if there isn't a personal sense of limitation and respect for individidual rights on the parts of these individuals, then the constitution is dead.

Read the dissent to get the full flavor of the attitude, behavior and tactics of the "public servants" involved and choose your own adjectives to describe them. Taste and ethics constrain me, because if I described the behavior as I'd like, I'd also end up noting the way that the court has permitted and perhaps even facilitated such behavior, and that might cross the line.

Clearly, in search and siezure as in other violations of our constitutional rights by public officials, we cannot rely on the federal civil rights laws (and the US Constitution and Bill of Rights) to provide adequate protection.

What to do? We need a Florida version of section 1983 that holds state and local agencies and actors liable for violations of the Florida constitution, with sections that make it clear that it is to be interpreted liberally to protect the rights of citizens - not like the cramped readings of s.1983 and the core rights that the federal courts have put on section 1983, basically to avoid hearing the cases.

Improving Growth Managment through Better Procedures, Standards and Judicial Review

Last year, I posted and circulated a suggestion for a set of minimal standards for the conduct and review of quasi-judicial decisions at the local level.

Here's this year's draft.

I've tweaked a few things, including making this part of Chapter 163 instead of Chapter 120 - maybe it'll get better play as a growth management bill.

I've also added a few suggested changes to complement the 2002 legislation which gave landowners/developers standing, over-ruling the Parker case. Biggest tweaks to the substance of Chapter 163: clarify the understanding that the denial of a development order that is consistent with the comprehensive plan is inconsistent with the comprehensive plan - which was the intention but not the reality. I also suggest clarifying that development orders must be consistent only with those elements of the plan that provide clear standards or objective criteria - the general rule in proper delegations, but again difficult to enforce. Finally, I suggest getting rid of the useless administrative challenge to land development regulations and replacing it with a proper de novo action in circuit court.

Please provide comments -- I'll be sending it along to the house GM committee and also to Sen. Mike Bennett.

Open Space Requirements in a PUD are not a Taking, Even When the Plan is Amended to Designate the Property "Preservation"

In Palm Beach Polo v. Village of Wellington, here's the link, the Village had filed a dec action seeking to enforce the terms of a PUD ordinance (originally adopted by the County, pre-incorporation) and the developer counterclaimed under a takings and Bert Harris theory for placing a portion of the property designated for conservation in the PUD as "Preservation" in the FLUM.

Upshot: Village 2, Polo 0. The trial court found, and the 4th DCA affirmed, that the density (and therefore value) of the 120 acre "Big Blue" portion of the property had been transferred to the rest of the development in the PUD ordinance, and that the terms of the PUD were still valid and enforceable. It held that there was ample evidence that development of this area was not an "existing right" for Bert Harris purposes, that the PUD provisions were not unconstitutionally vague, and that because the property overall had been given use - including development rights from the preservation parcel, the fact that the preservation parcel was now "undevelopable" did not create a taking.

For takings types - the "parcel as a whole" looks backward to prior regulatory actions, like the PUD ordinance here. An unsurprising result, but I'm not sure of another Florida precedent on this point.

OK, Local Gov't Attorneys, Repeat After Me: You Can't Lien Homestead Property - Really!

In Pelacanos v. City of Hallendale Beach, here's the opinion, the 4th DCA reminds us that homestead property really is free of liens - even if the homeowner makes a court mad. In that case, homeowners who were subject to code enforcement actions entered a settlement, but kept failing to completely live up to it. The result was various contempt citations and later an order from the court allowing the City to demolish the building and lien it.

The homeowners got the property under contract and asked for a declaration that the property would be sold free of the liens.

The trial court denied them their relief, but the 4th granted it. The City argued that because the homeowners had engaged in "eggregious" conduct in failing to comply with the court orders, the lien was valid (yeah, right). The court found that the property was homestead and therefore protected from the lien for demolition costs, regardless of how frustrated the lower court had been: "While we certainly empathize with the trial court's frustration with the appellants’ noncompliance, it is not our province to judicially create another exception to the plain and unambiguous language of article X, section 4. "

Standing to Challenge Under s 163.3215 -

In this interesting standing case, also called Payne v. Miami (here's the opinion), the court determined that neighbors and others who used the port of miami (a privately held group of properties, but subject to special policies in the comprehensive plan), had standing to challenge a development order that would have added residential uses to the marine-oriented area.

The trial court held that the neighbors had standing but that other port users did not. The majority held that these users were "aggreived" under the statute because they had business interests that were protected by the plan policies in question.

Moral: as with Renard/Rinker type common law standing, look to the plan policies that are involved to determine whether an interest is created and affected for "aggreived" status.

When Does a Small-Scale Plan Amendment Become Effective?

In an opinion in Payne v Miami (Payne I) that may not matter much outside Miami, Jacksonville, and the handfull of other "strong mayor" cities in Florida, the 3d DCA determined that the 30-day challenge period after the adoption of a small scale plan amendment did not begin after adoption by the City Commission, but after the 10 day period for the mayor to sign or veto an ordinance under the Miami Charter. Here's the opinion.

The decision hinged on the charter language, which provides that the ordinance does not go into effect until signed by the Mayor or 10 days has passed without signature or veto.

Interesting question: would the same logic apply to the City Commission's consideration of a rezoning in a challenge under 163.3215? Rezonings are administrative under Snyder (they're quasi-judicial and therefore administrative per se), but must be adopted by ordinance pursuant to special requirements of section 166 (cities) and 125 (counties). Most cases have held that the challenge must be filed within 30 days of the local commission's action, even if the "development order" of the rezoning isn't "rendered" for the purpose of a certiorari challenge (by filing the signed action with the clerk to the board) until some time later.

Who's Got Discretion? We Got Discretion! How Much Discretion? Too Much Discretion!

The Florida Supreme Court issued an opinion regarding when a "delegation" of powers goes too far that all land use practioners should be aware of.

In Fla. Dep't of State, Div. of Elections v. Martin, here's the link, the court upheld a First District ruling that "section 101.253(2) is an unconstitutional violation of the separation of powers under article II, section 3 because the Legislature has impermissibly delegated to the executive branch absolute, unfettered discretion to determine whether to grant or deny a candidate’s request to withdraw after the forty-second day before an election."

The statute stated that "The Department of State may in its discretion allow such a candidate to withdraw after the 42nd day before an election upon receipt of a written notice, sworn to under oath, that the candidate will not accept the nomination or office for which he or she qualified." The court held that this did not provided adequate guidelines.

This opinion, along with the Florida Supreme Court's decision in the Schiavo case (yes, it turned on improper delegation as much as or more than privacy), reiterates Florida's strong policy agains the delegation of essentially legislative authority to the executive.

The policy behind this is longstanding:

This Court has traditionally applied a “strict separation of powers
doctrine,” State v. Cotton, 769 So. 2d 345, 353 (Fla. 2000), which “encompasses
two fundamental prohibitions.” Chiles v. Children A, B, C, D, E, & F, 589
So. 2d 260, 264 (Fla. 1991). “The first is that no branch may encroach upon the
powers of another. The second is that no branch may delegate to another branch
its constitutionally assigned power.” Id. (citation omitted). In Bush v.
Schiavo, 885 So. 2d 321 (Fla. 2004), cert. denied, 125 S. Ct. 1086 (2005), we
recently addressed this second prohibition and explained:

The Legislature is permitted to transfer subordinate functions “to permit administration of legislative policy by an agency with the expertise and
flexibility to deal with complex and fluid conditions.” Microtel, Inc. v.
Fla. Public Serv. Comm’n, 464 So. 2d 1189, 1191 (Fla. 1985). However,
under article II, section 3 of the constitution the Legislature “may not delegate the power to enact a law or the right to exercise unrestricted discretion in applying the law.” Sims v. State, 754 So. 2d 657, 668 (Fla. 2000). This prohibition, known as the nondelegation doctrine, requires that “fundamental and primary policy decisions . . . be made by members of the legislature who are elected to perform those tasks, and [that the] administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program.” Askew v. Cross Key Waterways, 372 So. 2d 913, 925 (Fla. 1978); see also Avatar Dev. Corp. v. State; 723 So. 2d 199, 202 (Fla. 1998) (citing Askew with approval).

In other words, statutes granting power to the executive branch “must clearly announce adequate standards to guide . . . in the execution of the powers delegated. The statute must so clearly define the power delegated that the [executive] is precluded from acting through whim, showing favoritism, or exercising unbridled discretion.” Lewis v. Bank of Pasco County, 346 So. 2d 53, 55-56 (Fla. 1976). Id. at 332 (alterations in original).

The requirement that the Legislature delineate adequate standards enables courts to perform their constitutional duties. The failure to set forth adequate standards precludes a court from determining whether the executive branch is acting in accord with the Legislature’s intent. See Askew, 372 So. 2d at 918-19 (“When legislation is so lacking in guidelines that neither the agency nor the courts can determine whether the agency is carrying out the intent of the legislature in its conduct, then, in fact, the agency becomes the lawgiver rather than the administrator of the law.”).

In Martin, the issue was that the statute clearly stated that the decision was completely discretionary with the Secretary. In Schiavo, the issue was that the statute did not provide standards to guide the governor in when not to grant a stay, or when to lift one.

In the local government context, the seperation of powers does not constrain a Board in its legislative capacity from delegating itself or its agencies administrative powers. (there's a big section on this in my 1996 article in Stetson Law Review). However, nothing in a local government's home rule powers gives local government bodies sitting in their legislative role the delegated authority to "redelegate" their legislative authority to administrative actors. So, ultimately, the same seperation of powers analysis that applies at the state level should apply at the local level; the difference is that at the state level the prohibition against delegation stems from article II, section 3 of the Florida Constitution, and at the local level, it violates the basic premise that local government have no powers that are not granted to them by the Constitution or laws of the state.

This is interesting, because the standards for "improper delegation of legislative authority to the executive" seem to me to be somewhat more stringent than the traditional tests for an improperly vague ordinance or statute that violates substantive due process. More on that another time.

Development Orders Must Be Consistent with the Comprehensive Plan in Effect on the Date of Rendition of the Order

In Lake Rosa Coalition v. Bd of County Comm'rs of Putnam County, here's the opinion, the 5th DCA held that in a challenge under 163.3215, the relevent comprehensive plan provisions are those in effect on the date that a development order is issued, rather those in effect when the application was made. The court also did a nice job of identifying which orders can be challenged under 163.3215 (or rather, what conditions will warrent relief).

A building permit for additional dormatories for a campground was applied for in November; in early December the building plans were approved, but the building permit was not to be issued pending the resolution of a septic system issue; the permit was not actually granted until April. The land use designation was changed in December, after the plan approval.

The 5th held that it wasn't even close: the use, density and intensity of the buildings allowed by the building permit all were facially inconsistent with the new plan category. There was no "vested right" to proceed under the application (under the facts), and the plan in effect at the time of the issuance, not the application, governed.

Note there apparently is no "savings policy" in the plan to permit development consistent with pre-existing zoning, even if otherwise inconsistent with the land use designation; in fact there is a policy aimed at correcting inconsistent land uses through the control of building permits (that is, if your existing building is consistent with zoning, but not the plan, you can't get a building permit).

The opinion contains a nice section on how the meaning of use, density and intensity for the application of 163.3215 to development orders:

Adverting to the provisions of section 163.3215(1), a challenge to a development may arise under any one of the following three instances: 1) where it materially alters the use of a property; 2) where it materially alters the density of property; or 3) where the intensity of the use of the property is materially altered.
. . .
We believe that the County acted inconsistently with the objectives of the Comprehensive Plan by granting the building permit to the Alliance because the permit allows improvements and additions to the nonconforming use of camp property in clear violation of the Comprehensive Plan’s designation of the property as Rural Residential. For this reason alone, issuance of the building permit was improper. Nevertheless, we will briefly explain why issuance of the permit was improper for the second and third reasons under section 163.3215(1).

The evidence reveals that the additional housing provided by the new dormitory would increase the population density of the camp by 28% and increase the intensity of the use of the structures at the camp. We note that section 163.3177(6)(a), Florida Statutes (2001), requires every comprehensive plan to contain “standards to be followed in the control and distribution of population densities, and building and structure intensities,” with each land use category being defined “in terms of the types of uses included, and specific standards for the density or intensity of use.” Density is distinguished from intensity because the former relates to population while the latter relates to structures. See Florida Wildlife Fed’n v. Collier County, 819 So. 2d 200 (Fla. 1st DCA 2002); see also § 163.3221(4)(a)2., Fla. Stat. (2001) (referencing “[a] change in the intensity of use of land, such as an increase in the number of dwelling units in a structure or on land . . . .”). Thus, a development order that permits an increase in the number or size of structures on land is an alteration of the intensity of the use of the land, and a development order that permits an increase in population is an alteration of density. Here, both density and intensity were materially affected by issuance of the building permit to the Alliance.

So, a development order that changes the permitted uses, densities or intensities from a) what is already permitted, or b) what exists on the ground today, can be challenged under 163.3215 to determine its consistency with the plan. Note that while the opinion doesn't say so, the statute talks to changes, not increases, so a decrease in uses, intensities or densities also might be a material change subject to challenge (especially now that Parker has been legislatively overturned).

And the Moral of the Story Is: File a Facially Valid Permit Application

In St Johns WMD v. Womack, here's the opinion, the 5th DCA overturned a lower court determination that the WMD violated due process in a permit denial and granting damages under section 1983.

The court hated to do it, and appended the lower court opinion (and findings) to demonstrate that it believed that the District had behaved abysmally and probably unconstitutionally in its dealings with Mr. Womack. The problem? After successive (and clearly, from the record, bad faith) notices of intent to deny based on previous filings of plans drawn by his engineer, Womack filed his own plan, let it actually get denied and took that denial to court. While if he had simply taken one of the engineer's plans forward, the denial would have been arbitrary (or presumably so, given the tenor of the opinion), but Womack's own plan didn't have even an arguble claim to meeting the rule/statutory standards.

The record demonstrates that the Chair of the WMD interfered with the staff and the application and that the Friends of the Wekiva were allowed to "unduly influence" the proceedings. In short, the District completely shafted Womack, but gets away with it because he lost his cool and simply didn't file the last, best plan.

As a practic point, what this demonstrates is that the "futility" exception doesn't apply in due process and equal protection cases. You have to make a true good faith filing of an application that meets the objective standards. Then, arguably, you can make a claim that the agency failed to apply whatever discretionary standards are there in good faith.

Check out the dates here - the action started in 1992! Today, the same behaviour would get the District wacked about the head and shoulders with Bert Harris claims - and this is exactly the kind of fact pattern that was used to justify the act.

Formalizing QJ Processes: You Must Object to Preserve Right to Review

The 3d DCA issued this opinion in Clear Channel v. City of North Bay Village, involving a cell tower. Clear Channel lost before the City Commission, and petitioned for cert, which was denied by the trial court based on waiver (really short, useless lower court opinion, which I'll append below). Clear Channel took it up to the 3d DCA which upheld the lower court, finding that Clear Channel's questioning of a witness did not establish and preserve their objection.

Now, it has long been the law that ANY party must raise issues in the hearing in order to preserve them for review. What this case seems to add is that you must use the magic words during the hearing. Here's the relevant paragraph from the opinion:

Appellate review is confined to issues decided adversely to appellantÂ?s position, or issues that were preserved with a sufficiently specific objection below. Ferguson v. State, 417 So. 2d 639, 642 (Fla. 1982)(holding that objections must be made with sufficient specificity to apprise the trial court of the potential error and to preserve the point for appellate review; general objections are insufficient); State v. Barber, 301 So. 2d 7, 9 (Fla. 1974)(holding that Â?[a]n appellate court must confine itself to a review of only those questions which were before the trial court and upon which a ruling adverse to the appealing party was madeÂ?); Leonard v. State, 423 So. 2d 594 (Fla. 3d DCA 1982); Moore v. State, 418 So. 2d 435 (Fla. 3d DCA 1982); Snead v. State, 415 So. 2d 887 (Fla. 5th DCA 1982). The purpose for requiring a contemporaneous objection is to put the trial judge on notice of a possible error, to afford an opportunity to correct the error early in the proceedings, and to prevent a litigant from not challenging an error so that he or she may later use it for tactical advantage. Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182 (Fla. 3d DCA 2005); Crumbley v. State, 876 So. 2d 599 (Fla. 5th DCA 2004); Fincke v. Peeples, 476 So. 2d 1319, 1322 (Fla. 4th DCA 1985). (emphasis added)

Leaving for a moment the problems raised by tabsencense of formal findings to determine whether a decision was or was not effected by an error, this opinion's inclusion of the "contemporaneous objection" language is clearly indicating that a party (or attorney representing a party) in a quasi-judicial proceeding must have and use the opportunity to object to evidentiary or other errors as the proceeding progresses.

Does this extend to objecting that evidence from neighbors is not relevant, is hearsay, or is otherwise incompetent? Probably.

Does this extend to objecting or raising the claim that a denial (which you don't know that you're going to get) would be contrary to prior decisions of the board and therefore a violation of due process or equal protection? Again, I'd say so.

Ok, so how does this work when the hearing is conducted by people coming up to the podium one at a time to speak, with no "table" for the applicant and staff to sit at and comment "contemporaneously?" Basically, you have to continually jump and down from the seats and not only interrupt the witness but also get the attention of the chairperson at the same time.

Where the local rules or ordinances don't provide the means and manner for cross examination, objection and the resolution of issues, you'd also better object to that at the outset as well. The bottom line is that most local quasi-judicial processesess are constitutionally deficient because the processes are not well defined or described in this areas, but the ordinances are a) valid until challenged, and b) as we see here, deficiencies aren't reviewable if you don't object on the record.

BTW - Here's the order below. In neither this nor the DCA decision do we ever get to find out what the error complained of was.

CLEAR CHANNEL COMMUNICATIONS, INC., and FANE LOZMAN, Petitioners, v. CITY OF NORTH BAY VILLAGE, a municipal corporation, and CASA MARINA DEVELOPMENT, LLC, Respondents. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-456AP. L.C. Case No. S630-556-55-243-0. June 15, 2005.

(Before SIEGEL, SCHWARTZ, COHEN, JJ.)

(Per Curiam.) The Petition for Writ of Certiorari is denied. Petitioners failed to preserve the error about which they now complain during the commission hearing. There was no departure from the essential requirements of the law since the record is replete with competent substantial evidence to support the commission's decision.
(SIEGEL, SCHWARTZ and COHEN, JJ. concur.)

Sometimes Ownership Defines Use ???

In this opinion in the case of Saddeh v. Stanton Rowing Foundation, the 1st DCA determined that ownership or control does control use, at least when the use is a park.

City leased property, operated by the Rowing Foundation, for that purpose, with the lease noting the use as a park. Parks are permitted in the zoning district. Neighbors objected, won before the Zoning Board and lost before the circuit court. The circuit court found that the property met the definition of a park.

So the City gets pressured and terminates its lease. Neighbors then sue to establish that the use is illegal and for nuisance damages.

Stanton claims res judicata and circuit court upholds on that basis.

1st DCA: NAH! Overturning the circuit court's determination that the facts of the previous case establish that the use is a park use, the 1st DCA (looking at cases regarding park dedications) determines that as a matter of law, the "park" ceased being a "park" when the City terminated the lease, even though the use didn't change. Why? Apparently it felt that the right of public access to the property was lost, so the park characteristic was lost. It then became more like a private club (not a permitted use in the district), so the determination that it was permitted was lost.

SO - what happens if the landowner simply records a 30 year easement dedicating the property to limited public use and access and puts in picnic tables and a swingset? Clearly, the rowing club had been determined at the very least to be an accessory use to the park in the first litigation . . .

An Interesting Issue about Post-Annexation Regulation - Unresolved

In this opinion styled St. Johns County v. City of St. Augustine, the 5th "PCD'd" a petition for cert. The lower court had denied cert in a challenge to an action by the City that amended a PUD on property that had been annexed into the City.

Here's the legal controversy: under the annexation statute, when a city annexes property it must continue to apply the County's comprehensive plan and land development regulations until the city amends its comprehensive plan to include the annexed lands. So, could the City amend the PUD?

Here's the factual controversy: the annexed lands include a large golf course, and the amendment to the PUD would allow it to be developed.

Disclosure -I know these and other facts not in the opinion because I'm friends with counsel for the landowners.

The majority denied the writ per curium, but Judge Sharp dissented with an opinion. She laid out lots of history to the statute to support the position that you can't amend the PUD or make any changes to the land use until the city plan is amended.

The other side, which we don't get, since the PCD had no opinion, is that the PUD development order, though adopted by ordinance, is an administrative development order issued under the regulatory authority of the comprehensive plan and land development regulations. Amending the PUD did not change, amend, or apply new regulations to the land.

Because the writ was denied without an opinion, the 5th didn't really resolve the legal question. There's another legal twist to it: because this was a case of first impression, and because this came before the court in certiorari, there's a school that says that the lower court could not have departed from the essential requirements of law and applied the wrong law because there was not binding law to apply.

Yet another good reason why we must get rid of certiorari as the means by which we review these things and get a statutory provision for appeal of local quasi-judicial decisions.

If they weren't on the hook statutorily, DOT should be subject to atty fees under 57.105 for this one

Despite having lost exactly the same battle last year in the 1st District, FDOT appealed a trial judge's award of attorney's fees for time spent establishing the value of expert witness fees in an eminent domain proceeding. Case is FDOT v. Lockhart, here's the opinion.

After a lowball offer of $70,000, which turned (miracle of miracles) to over $400,000 at trial, FDOT then forced the landowners to a hearing to establish the value of the expert fees (rather than negotiating and/or stipulating to them). It then claimed that because the witness fees would be set by the court - and the witnesses had apparently testified that they would accept the fees deemed reasonable by the court - that the attorneys were working for the experts, not the landowner in the expert fee hearing.

I'm sure that the FDOT lawyers see themselves as simply battling the greedy eminent domain bar, who suck the public funds trough low by litigating these fee cases. But from where I sit, all they're doing is delaying the process and running up the cost to the public through unnecessary litigation over claims so weak or unfounded (and already rejected) that a private attorney would be risking sanctions to file them.

2d DCA on Cell Towers - And the Limits to the Scope of Essential Requirements of Law in Cert Proceedings

In Verizon v. The Sanctuary, here's the opinion, the court reiterated the view taken by the 3d DCA in its remand decision in Omnipoint, that the scope of the "essential requirements of law" inquiry, as well as the scope of the lower tribunal's authority in a quasi-judicial hearing, is limited to the ordinance or statute being applied in the hearing.

The City of Sanibel granted a license to Verizon to put a cell tower on a piece of property is owned that already had a water treatment plant (no mention of water tower, but I suspect one). It approved this under a "tower ordinance" that it had previously adopted, that indicated the site as one of several potential sites in the city, and that also provided that it superseded any contrary rules, etc.

The neighboring association raised violation of essential requirements of law (not competent substantial evidence), and the lower court granted cert, on several different grounds:
1) The approval was inconsistent with a site-specific PUD ordinance that governed the property;
2) The approval was inconsistent with a settlement agreement between the City and either the Homeowner's Association or the Developer
3) The location was inconsistent with a plat dedication that designated the site as a water treatment plan, even though full title to the property had later been granted to the City
4) That the City was "estopped" from changing the land use and allowing the tower.

In granting cert and quashing the circuit court's writ, the 2d held that the City's permit action was a quasi-judicial action that applied the tower ordinance, and did not involve either the validity of that or ordinance or the application or validity of the PUD ordinance or the settlement agreement. Based on that analysis, the court went on to hold:

The purpose of the certiorari proceeding below was to review the City
Council's application of the telecommunications ordinance to Verizon's request.
as such, the circuit court was not reviewing the Council's previous decision to enact that ordinance. See G.B.V. Int'l, 787 So. 2d at 848 (Wells, C.J., concurring) (explaining circuit court's error in treating county commission's action as legislative when it was quasi-judicial).

In sum, when considering Verizon's application, the City Council
properly applied the telecommunications ordinance, which expressly superseded
any contrary provisions in the land development codeÂ?including those
contained in the PUD ordinance. It follows that the circuit court applied the
incorrect law when, in reliance on the PUD ordinance and the amended settlement
agreement, it declared that the City Council's decision departed from the
essential requirements of law.

The court also held that the plat's designation did not control when the City had been deeded the property, and that the court improperly reweighed the evidence when it found estoppel (which had been raised before the city).

Whew.

The most important aspect of this case is the court's analysis of the scope of the delegating authority (the tower ordinance) as establishing the scope of the "essential requirements of law" and "applied the correct law" analysis. It accepts the Omnipoint court's position that a lower tribunal may only apply the ordinances and rules under which it conducts a hearing; unless those rules pull in other regulations or standards by reference, they are not before the tribunal. It might be required to act in a manner that is contrary to another law, if that other law is not before it.

This creates some interesting problem in our interlocked regulatory world. Was the comprehensive plan and its policies properly before the City in this case if plan consistency is not a standard in that ordinance? One school of thought - 163.3194 requires ALL decisions involving development to be consistent with the comprehensive plan, so thatrequirementt is "legislatively inserted" into all other localordinancess, etc. Another school of thought is that unless the localordinancee expressly requires consistency with the comprehensive plan, it is an impermissible consideration in the qj hearing and review.

The other thing that this decision brings out is the structural difference between what you can challenge in the cert process and what you can't. While the court failed to catch it, the estoppel argument actually should have been thrown out entirely: it is by definition an equitable argument and power, and administrative tribunals have no equitable powers. That is, the City could not have used an estoppel argument to "add" to the standards in the ordinance or limit their scope, and both courts erred in not dismissing this argument later. The same issue holds true with enforcing the plat restriction (though this was rejected on other grounds): barring the use of property that is inconsistent with an easement is either equitable (injunction) and not available as a general power to administrative agencies, or a declaration of rights between the parties, which nothing authorizes the City to determine. Moreover, nothing would grant the City the right to enforce such a determination of rights against itself or between other parties - again, that would be a judicial function.

So, given that there was potential conflict between the PUD ordinance, the settlement agreement, and that there were equitable issues on estoppel and the plat, and that these issues are clearly problematic in the cert appeal, what was the neighbor to do? Well, if there are legal and equitable issues that arise from a government action or rule, and they're not cognizable in cert, then they're going to be cognizable in a dec action.

Back to splits between what you try where, again because of the scope of review issues involved. Again - we need a statute that 1) provides specific authority and procedures for local quasi-judicial actions, and 2) provides for APPEAL, not cert review, in the circuit court, with review by right of the appeal in the DCA. That would broaden the scope of potential arguments and relief and avoid some of the "cramped"treatmentt of these issues that the narrow cert review provides.

4th DCA Eats Away at Due Process Right to Competent Judge

In Dep't of Motor Vehicles v Griffin, the 4th held in this opinion that there is no due process right to a lawyer-judge in these quasi-criminal hearings. It overturned several circuit court cases that held to the contrary, based on the circuit judge's far greater experience with the extremely poor record of the Department's non-lawyer judges in providing fair hearings and decisions.

I'll get to the land use implications in a minute. But basically, the core of the case is bad for due process. The court completely misinterprets Article V, s 8 and Treiman v. State ex rel. Miner to hold that the use of non-lawyer judges does not implicate due process. In fact, the opinion in Treiman greatly restricted the use of non-lawyer judges in criminal cases:

We hold that those [elected non lawyer] judges who properly complete the educational program, including examinations to test their proficiency, may preside over criminal misdemeanor cases as described above. Our ruling operates prospectively only, following the date this opinion becomes final. The use of recently elected nonlawyer county judges in criminal proceedings depends upon their being properly trained and educated in the law. The completion by the newly elected nonlawyer county judges of a training program similar to the current program is
constitutionally necessary for them to be able to discharge their criminal constitutional duties. Anything less fails to meet our construction of relevant due process safeguards.

Treiman v. State ex rel. Miner 343 So.2d 819, *824 (Fla. 1977)

The Florida Supreme Court therefore in fact held that there must be a demonstration of competence on the part of a non-lawyer judge in order to meet due process concerns.

That was a criminal case, and the driver's license cases here are merely penal/quasi-criminal (loss of right to driver's license), but the due process issue is the same: under what circumstances may a non-lawyer conduct penal hearings. Moreover the court in Griffin basically holds that the only way to demonstrate a failure of due process in the administrative judge's competency is to show that due process was violated in the hearing. Great.

The problem is that there is a long record of completely abysmal performances by these administrative "judges," who have repeatedly been held to conduct shoddy hearings and reversed for failure to be a neutral advocate. These "judges" are Department employees and clearly view their role as applying or upholding suspensions at all costs.

I challenge anyone to review the Florida Law Weekly Supplement regarding DMV suspension cases and come to a contrary conclusion. The end of this decision demonstrates it: it reverses all of the lower court determinations that the use of non-lawyer ALJ's violate due process, but upheld the court in Griffin's determination that the judge improperly acted as an advocate for the Department by halting the hearing to go and retrieve evidence for the Division's witness. There are probably a dozen reported cases where cert has been granted based on the hearing officer abandoning the impartial role required and querying witnesses directly, interfering with the presentation of the petitioner's case, and otherwise behaving as an advocate for the DMV. There are whole sets of cases where the DMV "judges" have suspended driver's licenses despite the failure of the local agency to demonstrate that the Breathalyzer's were properly maintained in accordance with Rules and Statutes.

In Lovely v. DMV the circuit court sanctioned the Dep't and the hearing officer under its inherent authority for accepting a probably cause affadavit when previous decisions of the circuit court had determined that the form of the affadavit was legally insufficient. In Walker v DMV, attorneys fees were levied because, again after several previous remands, the hearing officer refused to review the tape of the encounter between the citizen and the officer.

This goes on in the context of what would be contemptuous behaviour in any other setting. Officers and the DMV technicians routinely fail to comply with subpoenas to produce relevant documents at the hearings. The "judges" routinely allow this and don't dismiss the cases; sometime continuances are offered; and if one is not demanded, the appellate courts won't overturn the decision. So the game by the DMV and the officers is to drag the process out by refusing to comply with the law and to place the extreme economic burden on the citizen of paying a lawyer to attend multiple hearings - basically force an economic decision to waive their rights. It's an absolutely clear pattern of conduct and completely abhorrent to any sense of propriety or justice, but it's effectively sanctioned by these DMV "judges" and the courts.

What's the link to land use? Well, how many penal proceedings do boards of zoning appeals/adjustments/code enforcement boards/contractor licensing boards hold every day? Without impugning at all the motivations of the citizens who volunteer to serve on these boards, the due process provided at these hearings is spotty at best.

Citizens who appear before hearing officers or boards that impose penal sanctions should be guaranteed the right to a trained and impartial tribunal. While it may be that the use of appropriately trained non-lawyers is appropriate, as the Florida Supreme Court held in Treiman, the Fourth's cavalier and incomplete treatment of the due process issues in this case does no one a service.

Another Takings Case that Everyone Should Read

The Fourth DCA released a VERY interesting opinion (here's the link) on August 31. The summary paragraph says its an inverse condemnation case, but the text makes it appear that the controversy is over valuation in a straight condemnation case.

The key issue: whether the lower court properly held that experts could not testify regarding proper valuation of lands that were unbuildable because permits to properly address drainage had been denied by SFWMD, the Corps and the County. Expert engineers would have testified that the permits had been denied because the various agencies wanted the area for a wildlife corridor. Appraisers would have testified that the proper "comps" were lands outside the district that were buildable, and that the difference in value reflected "condemnation blight" from the County's earlier purchases and condemnation efforts.

The lower court had excluded the testimony on the basis that it was improper because those issues should have and could have been raised in direct challenges to the permit denials. The appeals court overturned that decision (though limited some of the language that the experts could use in describing the effects of the government actions). The substantive law on this would take a multi-page essay. But here are some of the interlocking policies:

1) It would have been improper for the agencies to deny the permits for the purpose of suppressing land values prior to condemnation; if proven in a challenge, this would result in overturning the denial (and presumably allowing the lands to be developed)

2) It would have been improper for the agencies to deny the permits for the purpose of establishing a wildlife corridor on private lands; if proven in a challenge, this would result in overturning the denial (and presumably allowing the lands to be developed). If it were found a valid reason, it would have established a taking insofar as it denied the ability to use the property.

3) However, there may have been a proper technical basis for denying the permits; this would have resulted in a proper limit on the use of the land.

4a) However, even a proper denial of the permits could have results in a taking if all economic USE was lost; here, the County appraised the property values at $6,000 per acre, but there is no evidence that the property could be used for anything. There is still an open question as to whether property that can't be used, but still has economic value (for purposes other than use) falls under the categorical Lucas rule.

NOTE, however, that if the denial was based on the fact that the requested use would be a nuisance, the denial wouldn't create a taking. The 5th DCA in the Best case (below), held as much last month.

4b) In valuing the property after "proper" denial, the caselaw is unclear as to what use should be used in assessing value, but there is reason to believe that it should be based on the premise that at least a single family home could be built on any lot; there is a presumption that a single family home is not a nuisance, and therefore that probably establishes a ground floor valuation. HOWEVER, this also appears to be one of the yet to be finally established points of law.

5) In the inverse condemnation context, it appears that a landowner can "concede" the validity of a permit denial to establish the loss of all economic use, and then sue based on the taking and get the value of the property. The question then becomes whether the purpose and effect of the denial can be used to bolster a claim that the proper valuation of the land would reflect the ability to build under the denied permit, rather than the value of the land without the permit. That is, if the permit denial was proper, what is the right use of the land for valuation? Is there a minimum use that reflects the ability to build a single family home? We would not expect so in the case of, say, a submerged lot, or a parcel that clearly lies completely in a protected wetland, or for a property located somewhere inherently unsafe (floodway in the First English case) but I don't think that this question has been clearly answered; it's obviously a key question in this case, and this opinion may establish the answer: the Fourth would have allowed expert testimony that claimed that the proper valuation for the lands without the permits was based on developable property outside the area in question. On the other hand, the Fifth's decision in Best seems to indicate that the landowner would have to lititgate the issue of the permit denial seperately, especially if there was any claim that the denial would be a nuisance.

6) However, if this was a condemnation/valuation case (as stated in the text), rather than an inverse condemnation/valuation case (as stated in the introduction), these policies seem to play differently. If the government is trying to take the property, government action that improperly suppresses the value should be taken into account; the government can't regulate just to make its purchases cheaper. But again, I'm not sure whether (historically) it would be right for the landowner to claim the "value" of the land as though the denied permits had been granted where the permit denials weren't challenged (that is, can the landowner effectively collaterally attack the purpose of the denial). Again, the question is: what is the right comparable, land that is developable under a permit, or land without those rights? Here, the court is allowing expert testimony that the lands SHOULD have been able to get permits absent improper government motives, and that the lands should be valued like developable lands. But again, this seems to run contrary to the Fifth's position in Best.

I'm not sufficiently expert in some of the issues to be able to point out the relevant cases, exceptions and controversies, and I hope we'll get some other commentary on this soon.

A case we'll all be reading for a long time to come - Bert Harris AND takings together!

In another very strange case and opinion, the 5th upheld an inverse condemnation claim against Osceola County, but not against DEP (gosh, they keep getting away with stuff in this court) in a case that involves the application of clearly vague and illegal rules to force a construction and debris (C&D) landfill to cease operating, but not really close. A jury found BOTH inverse condemnation and damages under Bert Harris (after the judge found undue burden) , but the landowners had taken the risk of electing and defending the inverse condemnation award (presumably because it came with better provisions for attorney and expert witness fees). Here's the opinion.

The facts are pretty simple. Best ran a landfill since the 60's. In the early 90's it was made subject to both state permitting requirements from DEP and also to an Osceola County conditional use ordinance. Neighbors complained about odors and DEP and the County acted (both illegally) to deny the landfill the permits it needed to continue operation. Best was also denied (but read the dissent, the two agencies didn't get their acts together to tell Best what it needed to do) the ability to bring in other fill to close the landfill and use it for other purposes.

The complications are twofold. First, on the DEP permit, the agency denied Best a renewed operation permit by creating a non-rule policy just for them that a C&D landfill couldn't create any objectionable odors. It also made a "finding" that the operation of a landfill was a public nuisance - a fact that the court relied on in part on letting them off the hook. That was complete nonsense because an agency doesn't have and can't have the authority to declare anything a "common law" public nuisance -- a clearly judicial function and determination (though an agency can find and enforce rules against nuisances if those are defined by statute or ordinance).

The problem is that, at a certain point, Best dropped the case against the agency and proceeded under the Bert Harris Act and inverse condemnation.

At the same time that the DEP denied the permit, the County denied Best a continuation of its conditional use permit. Best tried a second time and was denied again. Rather than continue in the (very stacked) litigation on this permit, Best went to court on the inverse condemnation and Bert Harris claims.

When it did so, it dismissed its APA appeal of the DEP permit denial and filed an "acceptance of the validity of the action" with a reservation of rights to pursue the Bert Harris and inverse condemnation claims. The County and DEP claimed that the Best's failure to pursue attacks against the validity of the denials precluded the takings and Bert Harris claims.

The County and DEP win in their claim that the denial wasn't a taking because, even if it denied all economic use of the property, the use was a public nuisance based on the agency's finding, and therefore fell under the nuisance exception to Lucas. This is REALLY problematic. Since First English, takings doctrine has recognized that a valid regulation or permit denial can create a taking. Moreover, it should be clear that an agency is without authority to simply determine that something is a "public nuisance," and that a trier of fact in the takings case should be able to reject that determination if it is examining the effect of the agency's action (as both the judge found and the concurrence accepted). The 5th's decision here (but read the concurrence w/regard to Bert Harris rather than inverse condemnation) is a real problem for takings claims.
Despite the loss of the more meaningful part of the case, Best wins against the County on another theory: the County prevented it from closing the landfill by claiming that Best needed a permit from DEP that DEP didn't have and couldn't give. The inability to close the site then precluded any other use and was a taking. The dissent hates the facts with respect to this, but the majority wins.

Note that this is a BAD case for takings and probably a good case for Bert Harris law.

The majority opinion held that the trial court erred in finding a taking based on the effect of the permit denials because the plaintiff didn't continue to attack the "propriety" of those decisions in the administrative forums, but then made it a centerpiece of the taking case. The 5th rejects the idea that denials of permits based on "odors" could be the basis of a taking suit - essentially holding that if a government claims any basis for a denial that might be a "Lucas" exception, you've got to litigate the denial down before you can have a taking. [The facts found by the trial court indicate that these findings were pretextual, not supported by the evidence and really a cover for a political decision.] All of us who practice in this area know that the court's holding here is just an invitation to local government and agency attorneys to draft completely bogus "nuisance" findings into their denials [even if they are not authorized by any rule, statute or ordinnce], because the 5th has held that you can't litigate the validity of those findings in the context of the takings suit.

Of course, one of the key differences in Bert Harris litigation as opposed to traditional takings law is that both the "undue burden" test and the "burden on the individual that in fairness should be born by the public" test invite scrutiny of the purpose and nature of the decision as well as its effect. And the concurrence complains about letting the Department off the hook, noting that this is a Bert Harris case if there ever was one. But the plaintiff had already elected the takings remedy rather than the Bert Harris remedy, so this is just dicta.

What we don't know is what would have happened if the plaintiff had elected the Bert Harris remedy. Clearly the concurring judge would have upheld it against not only the "closure" problem, but also against the permit denials. Clearly, the dissent thought the "closure" argument was bogus. The dissent also gives short shrift to the notion (see the findings in the concurrence) that the County and DEP basically conspired to jointly adopt rules that would "get" this particular landfill, and acts as though the denials were completely normal and valid responses to the "decaying, gas and odor producing landfill." What we don't know is what Judge Sharp (the author) would have done with the findings if the case had been a Bert Harris rather than a takings case and she didn't have the "nuisance" exception to fall back on. Would she have read a "nuisance" exception into Bert Harris? Would she have held that the plaintiffs had to litigate the "propriety" of the denials in other forums? We just don't know.

But we can be absolutely sure that this case will generate lots more Bert Harris cases. Clearly, the facts and history here demonstrate that judges will consider the language of the statute and find "undue burdens" in cases where traditional takings may fail legally. What we may see is that Bert Harris can be used to open up real remedies for landowners who get caught on the tail end of abusive, unfair and arbitrary local government actions -- the types of actions from which the 11th Circuit has cut off landowners from due process and section 1983 damages. What I'll predict is that a lot of land use lawyers will be trying it.

5th DCA-Agencies have no duty to prevent their staff from imposing and enforcing illegal, unauthorized and unadopted rules

Most lawyers familiar with local government law know the Triannon Park rule on government liability - the government isn't liable for protecting you in its enforcement of rules, even rules for public safety. Triannon Park involved a case where a property owner tried to sue a local government for being negligent in inspecting a building during construction when it turned out that the construction was faulty.

In DEP vs. Hardy, here's the opinion, the 5th distorted the Triannon Park decision beyond all reason to overturn a jury verdict for $1.5 million against the Department based on negligent failure to supervise (and trespass). The court held that the Department did not have any duty to prevent one of its enforcement officers from applying an unadopted (and therefore illegal and unauthorized) 200 foot wetland buffer requirement against the landowner, even though the agency knew, because of another case, that the guy had a practice of applying the rule and that it was unauthorized! Yes, that's right folks, according to the 5th DCA, the government has no liability when it allows ita employess to make up rules, enforce them against you and drive you out of business, which is what happened to the property owner here when it couldn't satisfy the Department regarding how it would address an illegal fill violation because the equally illegal buffer rule was applied.

Today, of course, the landowner might have recovered at least legal fees by fighting this in an APA hearing. But this holding extends sovereign immunity and tort defenses to agencies that basically let their employees run wild and abuse the public. So the agency can drive you out of business, but at least you may win your administrative case eventually and your attorney will at least get paid.

But that's not ALL the damage the court did. It also distorted trespass law in the process, at least for businesses. The jury had found that the agency employee trespassed when "inspecting" the property without a warrant. The court held that because a business (chipping trees) was run on the property, it was open to the public and there was no trespass. SO, the 5th has taken the position that any property owner that runs a business on part of a property opens the entire property to the public. Think about it - a junkyard with an office open to the public opens its entire operation to the public. A farm with a farm store - same thing. Basically, under this opinion, anyone who runs a business must post any areas of their property that they don't want the public to enter.

That's not what I remember from torts - I believe that the traditional rule was that the invitation to enter property applied only to those areas to which a reasonable person would expect the invitation to extend. In other words, running an office might invite people to enter the office, parking lots, etc., to transact business, but not to the other areas of the property.

Of course, maybe the 5th is just destroying the constitutional obligation of agencies to obtain a warrant before searching premises. Isn't it nice that our agencies have so much respect for the rule of law, and that our courts ensure that only laws and rules that are properly adopted are enforced against us.

Revised - More War on Standing

Whoops - first go round on this case, I read the recommended order against the 1st DCA opinon instead of the Department's final order - changes a lot of context b/c the Dep't rejected the judge's attack on non-profit standing. which means that the 1st DCA didn't go along with the attack on non-profit standing. So this post is being heavily revised below, though many of the points are, I believe, still valid because the 1st DCA did adopt without analysis the flawed (I believe) analysis from last years O'Connel and Melzer opinions.

There's a war going on against standing in environmental and land use regulatory cases, and the rights of organizations - whether they're "responsible growth" organizations or the local home builders - to represent the interests of individuals and businesses has been the target of carpet bombing opinions. Administrative Law Judge Don Alexander has been in the forefront of this attack on the historic understanding of the standing provisions of the Growth Management Act.

The 4th DCA joined last year in the O'Connel and Melzer opinons, which (mis) applied the earlier LEAF case to hold that being aggreived enough to challenge a plan amendment in an administrative proceeding didn't guarantee that one would be adversely affected by a loss enough to have standing to appeal. In other words, no judicial review for you!

The most recent case is Florida Wildlife Federation and Friends of the Mantanza v. St. Johns County & the Dep't of Community Affairs. Here's Judge Alexander's recommended order, finding that having members, sending them information, and representing their interests doesn't make a non-profit a "business" with standing. While the logic is surficially complete, it's completely inconsistent with the intent of the statute and earlier cases (see the footnote that tries to distinguish the Lee County case).

Here's the Dep't of Community Affairs Final Order rejecting Judge Alexander's position on non-profit business standing as inconsistent with prior decisions. As a friendly but anonymous poster pointed out, it was this (not the recommended order) that was the subject of the appeal. It's good to know (yeah, Shaw) that the Dep't rejected the analysis.

And here's the 1st DCA opinion dismissing their appeal because the organizations don't have standing. In one paragraph. With no analysis of the statute, legislative history, earlier administrative precedents - just cites to O'Connel and Melzer. What this means is that the organizations didn't satisfy the 1st DCA that they would be adversely affected (enough) to have standing to appeal.

I wrote about why I think the O'Connel and Melzer cases weren't right - it's disheartening to see the 1st DCA not only adopt that logic, but to do so with no analysis of what showing would have to have been made below.

Let's be clear: stupid and ill-founded attacks on comprehensive plan amendments don't do the process any good, eat up huge amounts of time and money and need to be dismissed early and often. But simply making it impossible for citizens to have standing to attack them is only going to fuel the fire for even more destructive and ill-considered forms of action like the Hometown Democracy Amendment.

If the process is too long and expensive, let's amend the APA to having the agency make the transcript again, keep short time frames on hearings, simplify further the rules of evidence, simplify and shorten discovery, and eliminate the need for filing recommended orders and exceptions in order to preserve rights. Make the system faster, cheaper and easier to deal with. But stop screwing around with standing - it's only going to backfire in the end.

When the government gets more freedom to act without effective oversight, we're ALL worse off over the long run.

THANKS to the anonymous poster for getting me on the right order under appeal.
RL

I like electronic filing, but this may be going too far

The 4th DCA just posted new electronic filing rules - here's the link.

In addition to requiring all pleadings and transcripts to be filed by email or disk (Word, WordPerfect or PDF), the court is requiring all appendices to petitions to be filed electronically! So now you'll have to get all the stuff that was introduced into the lower record scanned into PDF format if it wasn't electronic to begin with - and there's no exemption for oversize things like maps.

IMHO, that's going a bit overboard, even today. It means that a party to a cert appeal has to go to the official record, get documents that the party did not create or produce and make electronic versions in order to file a cert petition. Some board clerks might not let you do it.

BUT the lesson and direction are clear folks: start putting all of your presentation materials together electronically and burn them to CDs as you're going. File the CD with a paper index for the clerk's benefit that can be used to indicate what documents did or did not actually get entered. Not a big problem in court practice, where the clerk and judge usually do a good job of tracking such things, but generally not (to date) part of practice before local quasi-judicial bodies.

Good case for rules of construction and when they are (and are not) applied

The First DCA posted this opinion on July 5 in Dep't of Revenue v. Lockheed Martin. It's a pretty boring tax case, but it turns on an issue of statutory construction. The opinion includes this very good paragraph on when plain meaning makes it appropriate for a reviewing court to intepret a statute (or ordinance, or comprehensive plan policy) itself, rather than resorting to either the rules of construction or deference to an agency interpretation:

The issue of statutory construction is subject to de novo review. State v.
Burris, 875 So. 2d 408, 410 (Fla. 2004) (citation omitted). Legislative intent
is the polestar that guides a court’s statutory construction analysis. State v.
J.M., 824 So. 2d 105, 109 (Fla. 2002) (citations omitted). When a statute is
clear, a court may not look behind the statute’s plain language or resort to
rules of statutory construction to determine the legislative intent. Burris, 875
So. 2d at 410; see also Overstreet v. State, 629 So. 2d 125, 126 (Fla. 1993)
(noting that legislative intent must be determined primarily from the language
of a statute). This is so because the Legislature is assumed to know the meaning
of the words used in the statute and to have expressed its intent through the
use of the words. Id. It is only when a statute is ambiguous that a court may
resort to the rules of statutory construction. BellSouth Telecomms., Inc. v.
Meeks, 863 So. 2d 287, 289 (Fla. 2003). “‘Ambiguity suggests that reasonable
persons can find different meaning in the same language.’” State v. Huggins, 802
So. 2d 276, 277 (Fla. 2001) (quoting Forsythe v. Longboat Key Beach Erosion
Control Dist., 604 So. 2d 452, 455 (Fla. 1992)). Administrative construction of a statute, the legislative history of the statute’s enactment, and other extraneous matters are properly considered only when the construction of a statute results in a doubtful meaning. Donato v. Am. Tel. & Tel. Co., 767 So. 2d 1146, 1153 (Fla. 2000); see also Fajardo v. State, 805 So. 2d 961, 963-64 (Fla. 2d DCA 2001) (explaining that although virtually every English sentence contains some level of uncertainty, rules of statutory construction are reserved for cases in which a fair reading of the statute leaves a court in genuine doubt about the correct application of the statute).

So, no deference to a local agency construction of a zoning code or comprehensive plan unless the language is ambiguous (not just vague!).

11th: RLUIPA Case Finds As-Applied Violations AND Interesting Vagueness Test

In Konikov v. Orange County, here's the link, the 11th determined that Orange County improperly applied its ordinance requiring special exceptions for religious organizations to a rabbi who held relatively small services at his house.

It held that because the Rabbi could have held Boy Scout meeting or other civic meeting at the home with the same occupancy and frequency as the religious services that he held, the ordinance improperly singled out and discriminated against his religious practices.

Moreover, the court examined the ordinance for vagueness. It instructed the District Court to determine whether the term "religious institution" was impermissibly vague as a definition. More importantly, it found for Konikov on the question of whether the ordinance was subject to arbitrary enforcement. The court looked at record testimony that indicated that two different Code Enforcement Officers had differing views of the frequency of the meetings would constitute a violation. Because the Code was not specific enough to provide a single determination on a matter critical to the enforcement of an ordinance with 1st amendment implications, the panel upheld the lower court's determination that the ordinance was impermissibly vague.

THIS part of the opinion is really important and may have broader application. The court notes that chilling effect issues raise the bar on enforcement standards in ordinances that have 1st amendment implications, but this very simple standard is one that should be recognized in all litigation regarding local codes.

11th: Whoops, Standing to Challenge any Part of Sign Ordinance Gives Standing to Challenge Overbreadth of All Parts

A panel of the 11th receeded from? over-ruled? the earlier Granite State v. City of Clearwater holding, and confirms that a plaintiff who has standing to challenge one part of a sign ordinance can challenge any other part on overbreadth grounds.

The case is Tanner Advertising Group v. Fayette County, GA, and here's the link. It's important because it allowed Tanner to attack the ordinance as a whole, when the off-site regulation section (that prevented Tanner from getting permits for the billboards it wanted) had been upheld as a valid time/place/manner regulation. By getting to go beyond that section and attack the rest of the ordinance's regulation of signs as a whole (which included significant restrictions on on-premises signs and political and other signs on residential property), Tanner had a claim (albeit untested) for enjoining enforcement of the whole ordinance.

What's interesting is that this panel over-ruled another panel's Clearwater holding, which said that the sign company in that case could attack only those portions of the ordinance that directly affected it. This panel essentially said that the earlier case was non-binding becaue it was inconsistent with earlier decisions. Here's the relevant section:

In light of the strong precedent from the Supreme Court and this Circuit
concerning the doctrine of overbreadth which preceded the Clearwater decision,
we are compelled to follow our “prior precedent” or “earliest case” rule and uphold our decisions preceding Clearwater and disregard the narrow approach to the overbreadth doctrine employed by the Clearwater court. The prior precedent rule dictates that:
A prior panel decision of this Court is binding on subsequent panels and can be overturned only by the Court sitting en banc. . . . When faced with an intra-circuit split we must apply the “earliest case” rule, . . . a panel should look to the line of authority containing the earliest case, because a decision of a prior panel cannot be overturned by a later panel.
Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003) (citations and quotation marks omitted). Because this Court sitting en banc has not overruled St. Petersburg, Dimmitt, National, and Solomon, and because they came before the Clearwater decision, we hold that Tanner has standing to make a facial challenge to the Ordinance as a whole.

Interesting case for 1st amendment and local government lawyers, important case for folks doing lots of appellate work in front of the 11th Circuit.

Fla Supreme Ct won't Hear Vanderbilt Beach

Got a note from Larry Sellers today with a link to the Fla. Supreme Court's order declining to hear the appeal in the Vanderbilt Beach case. Too bad that this junk will stay on the books.

Kelo: Public Use = Legit Public Purpose - But what is legitimate?

The headlines are all ablaze with news that the US Supremes have radically expanded the authority to take property. Well, that's an ill-informed and extreme position, but the Court did apply its past precedents to a more broad kind of public program in Kelo v. City of New London - here's the link.

I don't want to delve into the property rights issues here. I think what's more interesting is the basis of Justice Kennedy's concurrence - the "swing" vote on this case.

Justice Kennedy's position is that the use of eminent domain would be improper under a "rational basis" type of test if the record demonstrated that the power was being used to benefit a particular person or corporation, rather than the public. He found that the record here - including the statements made by the dissenting Connecticut justices below - indicated that the purpose was to benefit the City and not Pfizer (the entity that will end up with the land). The fact that the taking was in conjunction with a comprehensive redevelopment plan seems to have loomed large in his consideration.

What's interesting is that his position would require the court's to scrutinize the actual record far more than in due process type rational basis cases. In other words, the actual facts and history, rather than post-hoc rationalizations, would be scrutinized. Flash back to his concurrence in Lingle, where he also opined that he wasn't stating that the statute there could pass due process tests.

SO - I think the big question may be this: Is Kennedy trying to get the Court to establish a new "hard look" type of test for substantive due process issues? If so, will he be able to get some of the conservative/moderate faction on board? The problem is that Scalia, Rhenquist and Thomas are generally legislative power hawks and Breyer - the putative liberal-- is generally with them on such issues. Souter is the skeptic; O'Conner (former state att'y general) tends not to like the substantive due process approach, and Bader-Ginsburg hasn't led on these issues. But it might be interesting to see if a Kennedy/Souter/Ginsburg wing, could swing two of the others to a more stringent view of due process.

It's important to note that Kennedy's view of the facts in Kelo is somewhat at odds with Justice O'Connor's recitation of the facts, which indicate that the redevelopment plan was generated from the point when Pfizer expressed interest in locating there. Seems to me that this indicates that the plan was to accommodate Pfizer. So one wonders what kind of record would "flip" Kennedy - would this case have gone the other way if the facts were more egregious or the public need of New London for redevelopment less obvious? If the four dissenters had taken up the intermediate scrutiny approach resulting in a remand for further factual inquiry into the public vs private benefits of the taking instead of trying to establish a harder line on what "public use" could mean (more principled but less flexible), might Kennedy have joined them?

But on the substance - a majority says that paid takings for "public use" are satisfied where there is a legitimate public purpose for them, even if that purpose is sale to a different private party for building a Ritz Carlton instead of a Motel 6, as Justice O'Connor described.

Personally, I'm a due process and review hawk, and I believe that effective judicial review creates real improvements to the results. In other words, when the government knows that it has to really justify its actions on public policy grounds and the facts, it is a better government. So I'm disappointed that the intermediate scrutiny proposal made by some of the amici didn't fly, because I think that would have better results, regardless of how the substantive standard is articulated. But I'm intrigued by Kennedy's due process arguments in two out of the three takings cases this year -- maybe there's some hope for meaningful review on the horizon if the right case presents itself.

San Remo - You Have to Litigate Fed Takings Claims in State Court - But 4 Justices Want to Review the Core Issue

In San Remo Hotel v San Francisco , here's the link, the US Supremes upheld the 9th Circuit's determination that the plaintiffs were precluded from litigating their takings claims in federal court because the state court had claimed that it had reached the federal issues. The most important and clear holding - if you actually litigate a federal claim inside a state claim, even an England reservation won't preserve your ability to litigate it again in federal court.

The second clear holding - if the state court holds that state taking law is generally co-extensive with federal law, you probably are going to have to argue your federal claims in the state court case and then appeal to the US Supreme Court to resolve the question of whether there has been a violation of the US constitution (Fifth through Fourteenth). You'll want to have the state court clearly indicated its position with regard to what the federal law requires and how that relates to state law.

This is a procedural nightmare case that may be more of a cautionary tale about how not to litigate takings cases. Space and time preclude me from giving you the whole background, but suffice it to say that the plaintiffs were trying too hard to get to federal court, managed to let the state courts try some of the issues, failed to appeal the state supreme court holding (which indicated that federal issues has been tried along with the state issues), and were in a very bad position back in federal district court. Despite their England reservation, the federal issues had been heard (though perhaps not as a federal court would hear them - more on that later), and neither the 9th or the US Supremes were willing to create a massive whole in the full faith and credit statute to allow the plaintiffs to go back to federal court to argue that the state court had either not heard the federal claim or had got it wrong.

The core problem, of course, is that if landowners want to claim that federal law is being interpreted too narrowly, or for an expansion of federal precedents, they can't do it in a federal forum. While this doesn't violate any substantive right (as both the majority and concurring opinions point out), it does prevent the federal courts from engaging the facts and law in what is a pretty dynamic area.

The basis for all of this madness is the part of the Williamson County case that holds that federal takings claims aren't ripe unless a state court has refused to provide an inverse condemnation remedy under state law. This has, in prior cases, been held to apply to the particular facts and plaintiffs, requiring each taking case to be litigated in state court first. And, as this case demonstrates, once you're in state court, it's almost impossible to effectively reserve your federal claims and not try them, especially if the state courts claim that they interpret state takings law co-extensively with federal 5th amendment jurisprudence. Effectively, the state courts can use this to hijack the interpretation of the US Constitution, with cert to the US Supreme Court the only available correcting mechanism.

The four-member concurrence invited plaintiffs to raise anew whether this is the right interpretation of Williamson County. This means that there is a sufficient number (4) on the court to force a hearing on the matter if it comes back.

With only short consideration, I can see that such a case might be predicated one of three ways: either the plaintiff would allege in US District Court that there was no takings remedy at all for the plaintiff under state law, pointing to state precedents (kind of a facial issue), or that state law was claimed to be co-extensive with federal law but did not reach the harm done to the landowner under the facts (a kind of as-applied challenge), again citing precedents. The federal court would then either a) dismiss the case under Williamson for failure to give the state court a chance to conform its holdings to federal requirements, or b) allow them to proceed under the basis that established state law doesn't provide a remedy. Either course would run into standing problems under different interpretations of Williamson, run its way through the Circuit Court and have 4 members of the Supreme Court waiting to grant cert to hear it.

Another way to play this MIGHT be to try to plead both federal and state claims in US court, claiming supplemental jurisdiction to hear the state claim. Again, you'd get bounced (probably) on Williamson, and then bring it up through the appeals process. This may be the quickest way to get to having a cert petition before the high court.

The final approach might be to again try an England reservation and attempt to force the state court to avoid any direct interpretation of the 5th/14th in its rulings, and then go back into District Court to try the federal issues. But after San Remo, I don't give that theory much hope.

Ultimately, I don't see this case as a major blow to property rights, given the 4 member concurrence. I don't see it as the court's last word on the process of litigating takings claims because of the concurrence, and it may be that we'll see a very different kind of case with different results soon. In the meantime, the safest route will be to litigate your federal claims in state court, knowing that you're only remedy for a misapplication of federal law will be the low-probability of cert review by the US Supremes.

A Gross Invitation to Abuse: No Injunction Against Deliberate Gov't Flooding of Property w/out Prior Taking

This is one of those cases where you just shake your head.

Brevard County is admittedly flooding a landowner's property for mosquito control purposes without permission and without commencing an eminent domain action. The landowner sued for injunction and also for inverse condemnation should the flooding be allowed to continue.

The trial court held, and the 5th DCA affirmed, that because the inverse condemnation remedy is available, the landowner has a remedy at law and is not entitled to a temporary injunction against the flooding. The case is DiChristopher v. Bd. of County Commissioners, here is the opinon. It also noted that the public interest is not served by the injunction, because the mosquito control program promotes public health.

First, it's just wrong that the government gets to commit an intentional tort and can't be stopped simply because somewhere down the line a legal remgy MIGHT be available. Trespass is a tort, damages are available for past trespasses, but that doesn't stop a court from being able to order enjoin future trespasses. But more importantly, what we're seeing is the government just going ahead and flooding this land and saying "so sue me." THEY ADMIT THAT THEY ARE COMMITTING THIS TORT AND TAKING, and refuse to do the LEGALLY REQUIRED act of eminent domain. And what happens now if the trial court later finds that because the flooding is periodic, it's a trespass, not a taking? (unlikely, but possible). Does the injunction count get reinstated?

SO - what we have now is a new claim by the government that even absent an emergency, act of war, etc., they can invade and take anyone's property anytime they want, and the only response available is a multi-year, complex suit in inverse condemnation -- no one can order them to remove themselves or do the right thing by initiating a takings claim.

The problem is clear: absent the availability of injunction to restrain the government from trespassing (or even siezing) property, what reason does the government have to bother with eminent domain? Hell, let's just start building roads, etc., over people's property and see who bothers to sue! Maybe we can get away with getting a bunch of free land, and maybe courts will hold that in inverse condemnation you don't get business damages and other pesky substantive and procedural rights that go along with eminent domain actions (like 12 person juries).

And folks wonder why there's such a "property rights" movement in this country.

Just what standard applies to 2d tier review of legal issues?

In Lakewood Travel Park v City of Davie, here's the opinion, the Fourth denied a "2d tier" petition for certiorari against a circuit court denial of cert. The case involved a challenge to a site plan approval issued by the City of Davie.

Apparently, the site plan would be accessed through an off-site drive, and the core issue was whether the site/development standards (like buffering, etc.) applied to that drive.

Without getting to the merits of the case either way (there's really not enough detail in the opinion to help), here's the problem language:

Upon a review of the record, we cannot say that the failure of the Town to
require the owner of the property on which the easement was situated to
authorize the development plan (which would involve paving the easement) or the
failure to apply the Town’s environmental buffer requirements to the access road
clearly violated the town code.

So what, exactly, standard of review did the court apply to the legal interpretation of the Code? If the Code was not ambiguous, then the court should have applied a non-deferential review. If the Code was ambiguous, then it should have deferred to the agency's intepretation unless that interpretation is clearly erroneous. (See the Dixon v. Jacksonville case).

I know of no standard that requires a person attacking the issuance of a development order to show that the action "clearly violated" the code. The action either did or did not violate the Code, which is a seperate issue from what the Code does or does not require. The courts' job is to ensure that the legal standards that have been, are, or will be applied are understood and properly intepreted.

The case may or may not have been properly decided. But without a clear recitation of the standard that was applied, why it was applied, and the language in the Code to which it was applied, we cannot tell the answer.

Sigh.

3d DCA - Trial Court Must Issue Injunction against Farm Parties

In Miami-Dade County v. Fernandez, here's the link, the 3d DCA overturned a trial court's refusal to grant a preliminary injunction against a landowner in a rural, agricultural zoned property who had been hosting children's parties that included horseback rides.

The County, after complaints, determined that having parties that involved the use of agricultural animals in an agricultural district was a "commercial party" use not permitted under the agricultural zoning and requiring an unusual use.

But when a circuit court rejected a hearing officer's determination that the landowner was in violation of the zoning code for engaging in an activity not permitted by the zoning district as not supported by competent substantial evidence (we don't know about the legal conclusion), the County instead went straight back to the court with a suit for injunction under a different provision of the Code (that requires a permit for a "new use"). The trial court refused to grant a preliminary injunction while the landowners attempted to get the use permit.

The 3d reversed, noting that when the government alleges illegal conduct, it does not have to prove irreparable harm. It also found that the earlier action against the landowners did not bind the County based on collateral estoppel or res judicata because the injunction action was brought for a violation of the different section of the Code.

BUT let's look at what really happened: the County alleged that the landowners were engaged in a use not permitted by the Zoning Code, and this was rejected by the court. The County then sued for injunction because they didn't have an "Occupational Use Permit" - which the County was refusing to grant them because the County felt that the action wasn't permitted - the position that was rejected in the other action. And the 3d demanded that the court issue the injunction, even though it is clearly arguable that the County's failure (or refusal) to grant the use permit is a violation of the law of the case in the earlier action.

In short, the County is making these folks jump through hoops in multiple venues to deny them a use that it seems that a circuit court determined was permissible.

Good power to have if the issue is a real matter of public health, safety and welfare. But to ban giving rides and parties on agriculturally zoned property?