Monday, November 28, 2005

Open Space Requirements in a PUD are not a Taking, Even When the Plan is Amended to Designate the Property "Preservation"

In Palm Beach Polo v. Village of Wellington, here's the link, the Village had filed a dec action seeking to enforce the terms of a PUD ordinance (originally adopted by the County, pre-incorporation) and the developer counterclaimed under a takings and Bert Harris theory for placing a portion of the property designated for conservation in the PUD as "Preservation" in the FLUM.

Upshot: Village 2, Polo 0. The trial court found, and the 4th DCA affirmed, that the density (and therefore value) of the 120 acre "Big Blue" portion of the property had been transferred to the rest of the development in the PUD ordinance, and that the terms of the PUD were still valid and enforceable. It held that there was ample evidence that development of this area was not an "existing right" for Bert Harris purposes, that the PUD provisions were not unconstitutionally vague, and that because the property overall had been given use - including development rights from the preservation parcel, the fact that the preservation parcel was now "undevelopable" did not create a taking.

For takings types - the "parcel as a whole" looks backward to prior regulatory actions, like the PUD ordinance here. An unsurprising result, but I'm not sure of another Florida precedent on this point.

OK, Local Gov't Attorneys, Repeat After Me: You Can't Lien Homestead Property - Really!

In Pelacanos v. City of Hallendale Beach, here's the opinion, the 4th DCA reminds us that homestead property really is free of liens - even if the homeowner makes a court mad. In that case, homeowners who were subject to code enforcement actions entered a settlement, but kept failing to completely live up to it. The result was various contempt citations and later an order from the court allowing the City to demolish the building and lien it.

The homeowners got the property under contract and asked for a declaration that the property would be sold free of the liens.

The trial court denied them their relief, but the 4th granted it. The City argued that because the homeowners had engaged in "eggregious" conduct in failing to comply with the court orders, the lien was valid (yeah, right). The court found that the property was homestead and therefore protected from the lien for demolition costs, regardless of how frustrated the lower court had been: "While we certainly empathize with the trial court's frustration with the appellants’ noncompliance, it is not our province to judicially create another exception to the plain and unambiguous language of article X, section 4. "

Standing to Challenge Under s 163.3215 -

In this interesting standing case, also called Payne v. Miami (here's the opinion), the court determined that neighbors and others who used the port of miami (a privately held group of properties, but subject to special policies in the comprehensive plan), had standing to challenge a development order that would have added residential uses to the marine-oriented area.

The trial court held that the neighbors had standing but that other port users did not. The majority held that these users were "aggreived" under the statute because they had business interests that were protected by the plan policies in question.

Moral: as with Renard/Rinker type common law standing, look to the plan policies that are involved to determine whether an interest is created and affected for "aggreived" status.

When Does a Small-Scale Plan Amendment Become Effective?

In an opinion in Payne v Miami (Payne I) that may not matter much outside Miami, Jacksonville, and the handfull of other "strong mayor" cities in Florida, the 3d DCA determined that the 30-day challenge period after the adoption of a small scale plan amendment did not begin after adoption by the City Commission, but after the 10 day period for the mayor to sign or veto an ordinance under the Miami Charter. Here's the opinion.

The decision hinged on the charter language, which provides that the ordinance does not go into effect until signed by the Mayor or 10 days has passed without signature or veto.

Interesting question: would the same logic apply to the City Commission's consideration of a rezoning in a challenge under 163.3215? Rezonings are administrative under Snyder (they're quasi-judicial and therefore administrative per se), but must be adopted by ordinance pursuant to special requirements of section 166 (cities) and 125 (counties). Most cases have held that the challenge must be filed within 30 days of the local commission's action, even if the "development order" of the rezoning isn't "rendered" for the purpose of a certiorari challenge (by filing the signed action with the clerk to the board) until some time later.

Monday, November 14, 2005

Who's Got Discretion? We Got Discretion! How Much Discretion? Too Much Discretion!

The Florida Supreme Court issued an opinion regarding when a "delegation" of powers goes too far that all land use practioners should be aware of.

In Fla. Dep't of State, Div. of Elections v. Martin, here's the link, the court upheld a First District ruling that "section 101.253(2) is an unconstitutional violation of the separation of powers under article II, section 3 because the Legislature has impermissibly delegated to the executive branch absolute, unfettered discretion to determine whether to grant or deny a candidate’s request to withdraw after the forty-second day before an election."

The statute stated that "The Department of State may in its discretion allow such a candidate to withdraw after the 42nd day before an election upon receipt of a written notice, sworn to under oath, that the candidate will not accept the nomination or office for which he or she qualified." The court held that this did not provided adequate guidelines.

This opinion, along with the Florida Supreme Court's decision in the Schiavo case (yes, it turned on improper delegation as much as or more than privacy), reiterates Florida's strong policy agains the delegation of essentially legislative authority to the executive.

The policy behind this is longstanding:

This Court has traditionally applied a “strict separation of powers
doctrine,” State v. Cotton, 769 So. 2d 345, 353 (Fla. 2000), which “encompasses
two fundamental prohibitions.” Chiles v. Children A, B, C, D, E, & F, 589
So. 2d 260, 264 (Fla. 1991). “The first is that no branch may encroach upon the
powers of another. The second is that no branch may delegate to another branch
its constitutionally assigned power.” Id. (citation omitted). In Bush v.
Schiavo, 885 So. 2d 321 (Fla. 2004), cert. denied, 125 S. Ct. 1086 (2005), we
recently addressed this second prohibition and explained:

The Legislature is permitted to transfer subordinate functions “to permit administration of legislative policy by an agency with the expertise and
flexibility to deal with complex and fluid conditions.” Microtel, Inc. v.
Fla. Public Serv. Comm’n, 464 So. 2d 1189, 1191 (Fla. 1985). However,
under article II, section 3 of the constitution the Legislature “may not delegate the power to enact a law or the right to exercise unrestricted discretion in applying the law.” Sims v. State, 754 So. 2d 657, 668 (Fla. 2000). This prohibition, known as the nondelegation doctrine, requires that “fundamental and primary policy decisions . . . be made by members of the legislature who are elected to perform those tasks, and [that the] administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program.” Askew v. Cross Key Waterways, 372 So. 2d 913, 925 (Fla. 1978); see also Avatar Dev. Corp. v. State; 723 So. 2d 199, 202 (Fla. 1998) (citing Askew with approval).

In other words, statutes granting power to the executive branch “must clearly announce adequate standards to guide . . . in the execution of the powers delegated. The statute must so clearly define the power delegated that the [executive] is precluded from acting through whim, showing favoritism, or exercising unbridled discretion.” Lewis v. Bank of Pasco County, 346 So. 2d 53, 55-56 (Fla. 1976). Id. at 332 (alterations in original).

The requirement that the Legislature delineate adequate standards enables courts to perform their constitutional duties. The failure to set forth adequate standards precludes a court from determining whether the executive branch is acting in accord with the Legislature’s intent. See Askew, 372 So. 2d at 918-19 (“When legislation is so lacking in guidelines that neither the agency nor the courts can determine whether the agency is carrying out the intent of the legislature in its conduct, then, in fact, the agency becomes the lawgiver rather than the administrator of the law.”).

In Martin, the issue was that the statute clearly stated that the decision was completely discretionary with the Secretary. In Schiavo, the issue was that the statute did not provide standards to guide the governor in when not to grant a stay, or when to lift one.

In the local government context, the seperation of powers does not constrain a Board in its legislative capacity from delegating itself or its agencies administrative powers. (there's a big section on this in my 1996 article in Stetson Law Review). However, nothing in a local government's home rule powers gives local government bodies sitting in their legislative role the delegated authority to "redelegate" their legislative authority to administrative actors. So, ultimately, the same seperation of powers analysis that applies at the state level should apply at the local level; the difference is that at the state level the prohibition against delegation stems from article II, section 3 of the Florida Constitution, and at the local level, it violates the basic premise that local government have no powers that are not granted to them by the Constitution or laws of the state.

This is interesting, because the standards for "improper delegation of legislative authority to the executive" seem to me to be somewhat more stringent than the traditional tests for an improperly vague ordinance or statute that violates substantive due process. More on that another time.