Saturday, April 30, 2005

Yet another reason why developers don't want to provide affordable housing

The 4th DCA released this opinion on April 20th, holding that, despite a binding agreement to rent 75% of the apartments to low or very low income tenants, the non-profit landowner could only receive available tax exemptions for those units that were actually occupied by low income tenants on January 1 of the tax year. That is, any units that were vacant and between low income tenants would be taxed as though they were market rate units even if the unit had been occupied by a qualified tenant in the past and the landowner was obligated to rent it to a lower income tenant in the future.

There was no allegation that the apartment complex was not meeting its obligation, only that there were some vacancies.

While the court went through some understandable gyrations given the language of the statute, agreement and relevant principles, ultimately the court relied on the doctrine of "strict application" of tax exemptions rather than on the requirement that interpretations follow legislative intent. The extreme result is that instead of the non-profit owner of these units being exempt for taxes on 75% of the units, the owner is subject to property tax liability for any units not so rented.

You can see the result coming: landlords won't sign leases for affordable units that don't provide a requirement for occupancy on January 1. Then the appraisers' will attack that and demand some "proof" that someone was actually there. It's just foolish, and this decision, while intellectually consistent, simply creates absurd results that would not have been contemplated by the Legislature.

Tuesday, April 26, 2005

Supremes Give with One Hand and Take with the Other - or Why Citrus Canker Litigation Will Be Back Again

The latest round of the citrus canker wars was unresolved by the Florida Supreme Court on April 14 when it issued this opinion. The Supremes overturned the 3d DCA's opinion, which basically held that because the Legislature had determined that all trees within a 1900 foot radius of an infected tree should be considered infected, those trees had no value and no taking resulted from their destruction.

But the court did not reverse the portion of the lower court ruling that held that the aggrieved landowners did not have an inverse condemnation claim.

Instead the court ruled that a deeply flawed and subject-to-funding statutory provision for compensating homeowners reached back to provide an avenue for compensation. It also interpreted the statute to provide greater-than-statutory compensation where a judge determined the value of taken trees.

But it did not hold that the statute had to provide full and fair compensation - which under Florida's constitution means that if your property is taken, your attorney's fees (and experts) get covered. That flat out means that the majority opinion is internally contradictory, holding that the trees weren't "of no value" (and therefore were taken), but not providing the constitutionally mandated remedies for takings - full compensation, including attorneys' fees.

Pariente concurred and claimed that this statute met the Haire test that required "just and fair" compensation. She also claimed that the homeowners were better off with a statutory remedy than constitutional inverse condemnation because they wouldn't have to prove a taking against nuisance and "imminent danger" defenses. Essentially, Pariente is saying that if the Legislature confesses a taking and doesn't make you litigate the entire case (but does make you litigate your damages), it can dispense with the need to provide attorney's fees - even if the result is that you'd have to spend more in attorney's fees than you'd get in damages.

Lewis concurred in the result only, and would have held that the landowners had a constitutional inverse condemnation claim. He's on the right side here, but not speaking out strongly enough.

Quince dissented, claiming that the majority twisted the statute to provide relief that wasn't there and that wasn't constitutionally acceptable. She would have allowed an inverse condemnation claim. She didn't mention fees directly, but clearly is disturbed by the way tha the majority is allowing a limited statutory right to displace a more complete constitutional right.

We're going to see this come back, for two reasons. One, there's no obligation under the statute to fund the awards, so a bunch of people may get judgments that they can't collect. If this is a taking, then that's not acceptable. Two, there's no statutory provision for attorneys fees in this case. Courts are going to deny them, and the whole issue will wend its way back to the Supreme Court to resolve the resulting constitutional issue.

The entire mess is like the nasty 1983/1988 decisions that hold that you can't get attorney's fees in those cases where the damages are just nominal. Essentially the courts have been holding that if a violation of your rights is worth less than the cost to fight for them, you don't get your attorney's fees. In other words, the government can violate your rights all it wants to as long as the damages aren't above the cost of the fees to object.

Monday, April 25, 2005

When do administrative appeals not provided by general law go to the District Court?

When the administrative agency not covered by the APA is a state agency rather than a local government or local administrative agency.

So held the 5th DCA in this opinion, in which it had to tussle through the various constitutional and rule provisions governing the review of administrative actions to come to a conclusion. I think they reached the right conclusion, but the fact that there's not statutory guidance on this issue is simply ridiculous.

The real conclusion: the Legislature should do its duty to proscribe by statute the authority of the different courts to hear APPEALs from administrative decisions. Basically we need a backup to Chapter 120 to cover all of those situations not covered by it - like local governments and boards, and state agencies that manage to get exemptions from the APA.

A Quick Primer on 11th Amendment and Why sheriffs (and counties) Aren't Immune from 1983 Suits in Federal Court

Ok, off base a bit, but anyone who litigates land use cases against local governments is always wondering about when a section 1983 based civil rights lawsuit might be feasible.

The 11th amendment (well, a very old and very bad US Supreme Court case interpreting it) bars citizens from suing their states in federal court. But certain agencies of the state do not benefit from that "immunity" (you can still raise the federal claims in state court).

This opinion from the 11th Circuit does a good job of laying out the history and function of the rule and how to apply it to sheriffs (the result: in most functions Florida sheriffs do not benefit from 11th amendment protections). It also has a straightforward suitable statement that counties aren't immune as they are treated like municipalities.

Monday, April 11, 2005

5th DCA - Dec Actions Provide Sufficient Guarantee of "Prompt Judicial Decisions" in 1st Amendment cases [updated]

I don't think I wrote about the US Supreme Court's decision in the Littleton case last year - here's the link - which involved a challenge to the sufficiency of the judicial review available to a first amendment-implicated licensing decision. Earlier cases had indicated the need for prompt judicial review and decision (in different opinions); Littleton argued that there was no need to guarantee a prompt judicial decision and that Colorado law was adequate to provide it anyway.

The court rejected the first position, holding that a prompt judicial decision is a critical element in a valid regulatory scheme that implicates First Amendment values. It then went on to hold that Colorodo's would meet that - laying out a bunch of language, but basically saying that you can expedite and hear these cases quickly under the rules, and judges know these need to be expedited, so we're not going to disturb this on a facial challenge, but deal with it on a "case by case" basis.

MOREOVER, the Littleton ordinance provided an administrative procedure for the issuance of a license that allowed appeal to the appellate court - rather than a de novo action. So the review here was appellate - failure to provide sufficiently prompt judicial review would be evaluated on a case-by-case basis.

What they were REALLY saying (and its in one of the lines) is that states (or local governments, who can't in Florida) don't need to adopt special statutes for guaranteeing prompt judicial review in order to have valid local zoning regulations that implicate First Amendment values. They were leaving it open to what would happen if the system failed. Presumably, because we're talking about appellate review, the failure of the courts to respond appropriately would be subject to its own decision rule - the court, rather than the local government, would be violating the 1st Amendment/due process by failing to act expeditiously on a petition.

In the process, the Supremes over-ruled our own 11th Circuit, which had held (in yet another Cassleberry case) that the First Amendment only required prompt access to courts, not a prompt decision. The Court clearly rejected that line - so if a 1st amendment licensing case arrives before a judge, there is a FUNDAMENTAL right to a rapid decision so that a license that has been inappropriately denied (or where the ordinance is invalid), there is rapid remedy.

WHICH leads us to this opinion issued March 24 by the 5th DCA (I've got to start reading more of the criminal appeal cases -tx to Matt Conigliario at Abstract Appeal for seeing this one). It upholds a challenge to Orange County's adult bookstore licensing ordinance based on vagueness and inadequacy of review.

First, the Court held that the provisions defining an adult bookstore regulated under the Ordinance were not unconstitutionally vague. So the Appellant could be prosecuted for selling adult material without the proper license if the rest of the ordinance were valid.

Here's the kicker: the Orange County Code has the Tax Collector make the decision with no avenue for a full administrative hearing or de novo administrative appeal (whether the Commission has authority over the constitutionally independant Tax Collector is another interesting issue that wasn't raised). Instead, another provision "allows" (remember, local governments have NO authority to grant or modify judicial jurisdiction) an applicant who is denied a permit "to immediately file appropriate pleadings." Hence - the majority and dissent find correctly (yeah, we're getting somewhere) that certiorari review is NOT available to speed a denial into the courts.

The 5th then held (over a lucid dissent) that the availability of a declaratory action under Chapter 86 is good enough to provide "prompt judicial review." It cites all the parts of the Littleton opinion that talk about how judges will be good and discusses none of the issues associated with having to try a denial denovo. The problems with getting effective declaratory review in a prompt manner was simply glossed over by the majority - though laid out well by the dissent.

The majority doesn't deal with the problem that a $30,000 license fee would be unconstitutional, but forcing an applicant to pay that much to try a de novo action against the County to get the same license appears OK. Nor does it deal with the issue that nothing in the Rules today compels a circuit judge to grant motions to expedite, etc. And given the clear distinction (appellate review vs de novo attack) between the Littleton ordinance and the Orange County ordinance, I'm not sure that the 5th isn't asking for reversal.

But here's another interesting issue: the court did not address whether mandamus would be available and under what circumstances.

Here's the section on denial of permits:

1) The tax collector shall review the findings reported by the departments and deny the application for any of the following reasons:
a. The application is incomplete or contains incorrect or false information;
b. The applicant has failed to comply with the filing requirements of F.S. ch. 607, regarding corporations, the filing requirements of F.S. ch. 620, regarding partnerships, or the requirements of F.S. § 865.09, regarding doing business under a fictitious name;
c. A license issued under this chapter for the location of the proposed establishment is the subject of a pending suspension proceeding or is under suspension;
d. A license issued under this chapter for the location of the proposed establishment is the subject of a pending revocation proceeding;
e. The granting of the application would violate a statute, ordinance, or an order from a court of law that prohibits the applicant from obtaining an adult entertainment establishment license or operating an adult entertainment establishment
(2) If the tax collector denies the application, the tax collector shall, within seven (7) days, notify the applicant of the denial by certified mail, return receipt requested, and state the reason(s) for the denial.
It looks to me like the Tax Collector has to grant the permit unless one of these reasons to deny it exists. It also looks to me like these are pretty clear cut, non-discretionary types of determinations, and if a denied applicant could show through affadavits and collateral information that none of these bases for denial were present, the Collector would be required to issue the permit. OTOH, if the Collector disputed one of the facts, there's a line of cases that provides that mandamus would not be available - back to a dec action / injunction instead.

So here's another case where the appellate courts are essentially kowtowing to possible constitutional defective and abusive local ordinances.