Tuesday, January 25, 2005

A Prescription for Improved Local Decision Making: Let's have a local government APA

I've preached for years that local government quasi-judicial decision making was a mess. My first article looked at the consistency doctrine and its implementation, and the issues raised by Snyder (and predicted some of the problems that would ensue). In 1996, Stetson Law Review published this article of mine that reviewed the gamut of issues associated with quasi-judicial decisionmaking by city and county commissions. I ended that article by calling for a "Local Government APA" - an adaption of the full Chapter 120 designed to address the specific issues of the conduct and review of quasi-judicial hearings at the local level.

So years have gone by, and the Legislature has not acted. In the meantime, Florida's Growth Management experiment has been significantly harmed by the gross discretion afforded the local commissioners by current procedures - and lack of effective review.

This harms both developers and affected neighbors - there simply isn't a truly fair hearing process, and the "cert" remedy is completely insufficient. If we're going to be serious about implementing growth management, local government discretion must be kept in check by the judiciary. We already have 2 branches - the legislative and administrative -- combined in one body, and without effective judicial review of quasi-judicial decisions, they control all three. And the result is what's predicted when the seperation of powers fails: tyranny and despotism.

So I've taken it upon myself to draft a first cut of an Local Government Administrative Procedures and Review Act, and here it is.

Here's the scoop: the House Growth Management Committee is going to be holding hearings starting this week all over the state. The last one is next Friday in Ft. Myers. I intend to send it to the Committee and introduce it there, with the (admittedly very small) hope that the Legislators will finally take a real thought about the procedural infirmities in the current system and the way that they lead to lack of accountability and implementation.

I would love to have your comments and feedback over the next week.

Monday, January 24, 2005

Evidence in an enforcement case is, well, yeah, important (as are rules governing clean up standards)

The 5th DCA reminded us last week in this opinion that it's the government's burden to prove the elements of an enforcement case: just alleging violations can't throw the burden on the alleged violator to prove innocence. Oh, yeah, and a simple statement by a landowner to regulators that an ex-tenant caused a spill (hearsay) isn't evidence to support a conviction when the landowner isn't available to testify. Oh, and DEP's non-rule cleanup standards aren't valid because they were never adopted by rule.

The important thing here is that the simple allegation that the lessee was responsible for drums of oil later to have found to have leaked wasn't sufficient evidence to convict without more proof of responsiblity and of the actual contents. On the first issue, the owner had apparently died after calling DEP to claim that the tenant had left the offending mess. Without any other evidence that the offending drums and items were put on the property while it was under the defendant/lessee's control, there wasn't competent substantial evidence to support responsibility. As to the content, DEP claimed that used oil had spilled, but never tested the substance to show it was used oil. It pled poverty, that it couldn't afford to test at all its sites. It then tried to claim that inspectors' examination of the oil was sufficient evidence that it was used to throw the burden on the lessee to show that it wasn't used oil. The Court rejected that approach, holding that the agency can't shift the burden of proof to the defendant this way.

And as to the last issue: DEP apparently had been using clean up standards for soil contamination that it had never adopted as rules, even though it had been specifically directed by statute to do so by July 1, 2004. The court not only held that DEP could not enforce the non-rule standards, it also remanded for the entrance of trial and appellate attorney's fees.

The lesson: in an enforcment action, the burden is on the agency, not the defendant, and that goes throughout the proceeding and to all the critical elements. And while not discussed here, remember that all such penal actions are governed by the clear and convincing evidence test.

And if you're an agency directed to adopt rules, you probably should adopt them.

Monday, January 10, 2005

2d Makes the Vanderbilt Shores Case Worse on Remand

Back in November, the 2d DCA issued this opinion after rehearing in the Vanderbilt Shores case I blogged back in April. I haven't blogged it yet because, frankly, the result is just confusing and depressing.

The court reissued its earlier opinion and then tacked on a paragraph that held that because the plaintiffs had not sought a temporary injunction, they were barred from pursuing their claims and the court should dismiss the case with prejudice on remand. It cited Medical Arts, Inc. v. Rohrbaugh 293 So.2d 366 (Fla. 4th DCA 1974) as support for this proposition.

Medical Arts dismissed an injunction and dec action in a situation where neighbors waited for 90 days after construction had begun (and in fact had almost ended) before bringing their action. The decision turns on an "unclean hands" theory - that the plaintiffs sat on their hands and let the conduct continue without fair notice that the defendant was at risk. Compare the situation in Shidel, where there was a letter to the developer putting it on notice that an injunction would be sought.

The problem is that in this case, the 2d cites NO facts from the record that would cause this eminently fair approach to apply. Instead, there's a line to the effect that the failure to seek a temporary injunction is fatal to their cause, leaving the impression that if you can't front the dollars to support the injunction bond for a temporary injunction, you can't press an injunction case. That's not supported by Medical Arts, Shidel or any number of other cases.

And its worse in the context of the rest of the reissued opinion. The court ruled that the circuit court and the county were wrong in interpreting the plain language of the zoning code, and that the building was in violation of the setback provisions. Score one for the proposition (Dixon and other cases as well) that courts should NOT pay deference to agency interpretations where the meaning of the regulation is not ambiguous.

So the building is clearly non-conforming.

But the court held that the circuit court correctly dismissed the suit (and now should with prejudice) for failure to exhaust administrative remedies. As I wrote before, the idea that you have to go to an 'administrative determination' in order to appeal or collaterally attack an interpretation that's embedded in a development order is, well, loopy. First, the administrative determination route does not result in an enforcement action, just an interpretation. Enforcement is purely discretionary with the County officials. So administrative determinations are not a remedy against a decision that has already been taken.

OTOH - we also don't know from this opinion exactly how long the litigation and conflict had begun. We don't know what site/development plan approvals were issued prior to the building permits that might have provided a route to challenging the illegal setbacks, and whether the neighbors sat on their hands during such proceedings. So we don't know whether there were reasons not provided in the opinion that the neighbors didn't avail themselves of other administrative routes of review.

But this is a big mess regardless. You now have a development that has been judicially determined to be non-conforming and in fact illegally constructed. Maybe there's another party that can attack it who's not bound by this decision. You also have a very sloppy holding on exhaustion that could be used against almost anyone, developer or neighbor alike. And you have an opinion that flies in the face of years of cases that hold that zoning rules CAN be enforced through injunction by a neighbor who can show special damages.

And perhaps worse, you have a situation where the result may have been proper and just, but the opinion contains neither the law nor the facts to support it.

Thursday, January 06, 2005

Settlement agreements regarding code/zoning enforcement are enforceable and supercede claims covered

In this opinon, issued back on November 24, the 4th DCA held that it was appropriate to enforce a settlement agreement (or, rather, a violation thereof) by enjoining the continued use of a property in violation of the terms of the agreement.

The settlement agreement had been entered to resolve earlier litigation when the City of Delray Beach tried to enforce a site plan requirement for the particular use of the property that had been adopted after the use had been well established. While the property owner claimed grandfathering/non-conforming use rights, the City didn't respect those and started enforcement proceedings. These were then dismissed with prejudice in a settlement agreement, as were the property owner's counterclaims including the "non-conforming use" defense.

When there were later disagreement (extensive and long-running, based on the opinion) regarding whether the property owner had complied or was complying, the City sued to enforce the settlement agreement and to enjoin the continued use of the property for the use in question. The trial court granted and 4th approved. The court specifically held that the defense that the use should be considered grandfathered was lost by the adoption of the settlement agreement.

The moral: be careful about what you agree to in a settlement, because you're going to be bound to it.

1st DCA flaunts Supremes to create loophole in prohibition on special assessments for law enforcement purposes

The First DCA took it upon itself to create a new rule for law enforcement special assessments in this opinion, issued on January 5. Even though the Florida Supreme Court has clearly held that law enforcement services do NOT provide a special benefit to property and therefore should not be funded through special exceptions, the 1st upheld an Escambia County special assessment for law enforcement within an "MSBU" because the area is leased from the County and the lands are not subject to ad valorem taxes. A strong dissent clearly hit the law right.

So this (activist?) courts decides that if the property doesn't pay enough taxes to cover a service, the local government can make it up through special assessments? This logic was rejected in the Collier County case, where the imaginative approach was to assess property for which a new CO was issued after January 1 of any year, since the improved value of the property is not taxed in that first year. The simple fact that a property receives general governmental services (like police protection) without having to pay ad valorem taxes does NOT create an exception to the benefit rule.

The court cited the well-trodden rule that in determining whether a special assessment benefits property, "courts are required to give deference to the taxing authority's determination .. . [which] must be upheld unless the determination is 'palpably arbitrary'." citing Pembroke Pines.

The problem here is that this traditional rule was established to avoid judicial intervention in questions of whether, for example, a collector street that served but did not abut property was benefited. Using it as a shield for the basic determination of what services can or cannot be funded by special assessments is just wrong.

The Courts should add a 3d part to the traditional 2 part test (whether the property is benefited; whether the costs are properly apportioned) to included whether the facility or service benefits property generally, and this test should give no deference to the local legislative determination. The first test then becomes whether a particular property is benefited by the particular improvement or improvements to be funded; this could use the deferential rule.

In the absence of such an approach, local government will simply continue to push and push on the barriers of the proper use of special assessments to avoid actually having to identify general tax needs and issues. One must be sympathetic with the plight of rural counties, where property values are so low that even levying the full 10 mills for local government uses is insufficient to fund basic services. But the proper response is to address our tax assessment and distribution systems overall, not to flaunt the constitution's limits on local taxing authority by destroying the recognized limits on the proper use of special assessments.

Tuesday, January 04, 2005

Standards vs Standing for Injunctions

In this opinion, released on December 30, the 5th DCA held that a neighbor seeking a temporary injunction against a development order (or, in this case, the process involved) does not need to show "special damages" as part of the test for entitlement to the injunction.

The court correctly distinguished the "special damages" requirement for standing from the irrepparable harm test needed to qualify for the injunction, and reversed the trial court, who had dismissed the case with prejudice for failure to show special damages. Special damages, of course, require the demonstration that the plaintiff will suffer a harm different from those of the community in general.

Here's where we get to an interesting problem. The case involved a citizen trying to get an injunction against the issuance of a development order based, not on the illegality of the order (e.g. failure to meet the standards), but based on the failure to provide procedural due process in the City's issuance of a site plan. So what standard should the 5th directed the trial court to use on the issue of standing to bring the injunction action, as opposed to

OK, so if the Plaintiff wanted to get an injunction against the site plan itself, he would have to show special damages to maintain standing. While the cases go both ways, neighbors generally should be able to show special damages if the underlying violation goes to some interest that would be protected (e.g. setbacks if the plaintiff is adjacent, traffic or configuration or failure to provide required landscaping if you're in the immediate vicinity, etc.). That is, the "zone of protection/interest" test used in APA type cases should be applied in determining whether the plaintiff is harmed in a way that is different from the community. (this does require some problematic assessments of what kinds of harms - and to whom - zoning regulations are designed to protect, but we'll take that up another time).

But where the problem is the process, you run into all kinds of problems. Suppose the action is quasi-judicial (site plan approval would be) and the problem is that the local rules don't allow the neighbors enough participation (or notice) to protect their rights. Cert is an insufficient remedy because the violation is one that would prevent the plaintiff from establishing on the record the evidence needed to establish both standing and the core violation. In such a circumstance, a dec/injunction action is appropriate. Moreover, if the violation is not specific to a single proceeding, there is a signficant public interest to protect that should cause the court to lean towards permitting the suit.

But now we run into the standing problem - what harm should a citizen/neighbor have to show in order to maintain an action to prevent action on a development order because the process is bad? If the citizen wouldn't have standing to contest the outcome if the process were'nt bad, should the case be dismissed? If you say yes, then you require a citizen to show both a substantive violation and special damages in order to get a procedural violation addressed - this just seems way too restrictive. OTOH, if you let anyone stop any individual development order based on such a claim without showing special damages, you open the door to the kinds of frivoulous or harassing suits that the special damages rule is intended to prevent.

Perhaps the "right" answer is that if a local government employs an improper process, anyone should be able to maintain a facial dec/injunction action against it. But we've seen time and time again that the courts won't allow this absent a specific case - facial challenges to process tend to be dismissed on ripeness grounds, because the courts want to see a real controvesy and give the government the chance to interpret the legislation/regulation so as to make it valid.

Bottom line: yet another situation where the absence of a set of uniform minimum standards for the conduct and review of local administrative hearings is creating difficult, time consuming and expensive litigation that confuses rather than clarifies the rights of all involved.

Practice tips: 1) exhaust your remedies (more on that later); 2) figure out how to plead special damages whenever possible, even if you have to be creative; and 3) where processes are screwed up, try to get objections, etc. into the record so that the issue can be addressed in cert review.