Saturday, June 11, 2005

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?

1 comment:

  1. Anonymous5:50 PM

    it is my understanding the Supreme Court has issued authorization for a constitutional amendment to the land use law, which will not be voted on in Florida until 2010.
    That amendment would empower the people supreme ct opinon to the AG on amendment
    the people need to get busy and get people ready for this vote..