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.