Wednesday, July 20, 2005

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

2 comments:

  1. Marcia Tjoflat2:21 PM

    Robert:
    You may want to check out the Department of Community Affairs Final Order at http://www.doah.state.fl.us/ros/2003/03%2D2164%2Edoc. DCA did not adopt ALJ Alexander's interpretation of the standing statutes. Since it was the Final Order which was appealed, not the Recommended Order, the 1st DCA did not affirm Alexander's interpretation. The citations cited in the PCA relate to the 120.68 "adversely affected" standing for appellate purposes, NOT the 163 "affected person" standing.

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  2. Geoff Dobson11:58 AM

    Marcia is correct. There is a difference between standing to participate in an administrative proceeding which may be granted as a matter of legislative grace and standing to participate in a judicial proceeding which is constitutionally limited to cases and controversies, i. e. to persons actually adversly impacted. The holding is simply that the appellants had standing to participate in the Administrative Proceedings, had no standing to appeal the outcome of those proceedings in the judicial setting.

    In other words, there is nothing strange in the holding.

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