Saturday, November 18, 2006
Critical to the determination was that the hieght issue raised in the second proceeding was the same issue: one of the criteria in the city comission's consideration of whether the plan conformed to the same standards that applied in the certificate of appropriateness. Because the issue was the same, the objector could not relitigate it in the later proceeding having had (and not followed) the opportunity to fully litigate and appeal it earlier.
Section 163.3215(3) provides that the de novo action "must be filed no later
than 30 days following rendition of a development order." We conclude, in this
case of first impression, that the triggering event for "rendition" is when the
City Clerk entered the development order, not when the mayor signed the order.
The languge was changed in 2002 to include the "rendition" term, the court noted the legislative history, which included staff analysis to indicate that this was intended to make the time frame concurrent with the applicable rules of court. The appellate rules define rendition as occuring when the order is filed with the clerk to the tribunal.
A decision that simplifies life for all of us. Now, the only filing date that runs from the date of the action, rather than the date of the rendition, is the 30 days to file a challenge to a small scale plan amendment.
Here, the City reneged on a settlement agreement (for reasons that may be legally valid, but are operationally just sleazy) and denied a permit. When the applicant appealed to the City Commission, the City staff brought up new reasons not stated in the denial, over the objections of the applicant with respect to notice.
The circuit court decided that the city was legally entitled to reneg and denied the petition. The circuit court noted the correct Vaillant princicples for review, but then "Without elaboration, the decision stated that the court had reviewed the record and found that petitioners were afforded due process. "
Good enough to deny review of the issue on 2d tier before the 4th - the court found that the narrow basis of 2d tier review precluded it from actually asking whether the city commission had denied the petitioners due process in the notice issue because "the circuit court applied the correct law" even if it applied it incorrectly.
Legally correct perhaps under certiorari principles, but wrong as a matter of constitutional rights, effective judicial review, and a proper constraint on abusive local governments.
We deny the petition for writ of certiorari without prejudice to the
petitioners seeking declaratory relief in the circuit court.
Here's the hook: the 2d tier cert was a challenge to the circuit court's denial of a cert attack on the Hillsborough County Commission's approval of a plat in a non-quasi judicial proceeding.
The critical sub-issue is this: under City of Boyton Beach v. Park of Commerce, _____, the Florida Supreme Court held that the site plan decision under review was quasi-judicial in nature. The opinion included language stating broadly that all land use decision were quasi-judicial. But a footnote cited to the Snyder case, noting that the same analysis applied. Snyder, of course, involved a rezoning, and there is are statutory requirements that rezoning ordinance be adopted by ordinance (which involves a hearing). The statute involving plats, as well as the Hillsborough County land use regulations, do NOT have such an explicit provision. However, the platting statute (Chapter 177) does require the local governing board to approve a plat, and other provisions of Chapter 125 and 166 provide that the only way for local governments to act are through ordiances or resolutions, and both those statutes and the Sunshine Law require those actions to be taken at public meeetings - but not necessarily after "public hearings."
Also complicating matters is the whole bizaare history of whether and when plat approvals are ministerial; under the statute, they are if the plat meets the objective, ennumerated standards, but most local subdivision ordinance add additional requirements that may include some discretionary criteria.
Here (based on information I have that's not in the opinion), the Hillsborough County Commission approved the plat at a public hearing, but did not allow affected neighbors to introduce evidence against it. Neighbors challenged by cert under Park of Commerce, claiming violations of due process and essential requirements of law. Circuit court denied, stating that the hearing wasn't quasi-judicial in nature, and the appeal followed.
What we don't know is whether the lower court held that the plat approval wasn't quasi-judicial under the structural analysis of Bloomfield v. Mayo, which holds that you look to see whether the delegating statute or ordinance requires notice and a due process type hearing, or under the so-called functional analysis that comes from Snyder, under which the court looks to see whether the local government was applying versus making policy, and implies and requires quasi-judicial procedures if they are.
Clearly, the County did not offer the incidents of a quasi-judicial hearing, and now the courts have held that a dec action, rather than cert, was the proper remedy. The question is how broadly this holding reaches.
While the court cited the statute, which requires that a defendant be permitted the opportunity to present evidence in defense, this is clearly a due process requirement as well.
Sunday, September 10, 2006
Ok, it's yet another billboard case. The ordinance has some serious defects in allowing commercial speech preference over non-commercial speech (off-site billboard ordinances often have this issue). It actually is screwed up enough to read such that any political sign can only be temporary.
When the City denies sign permits, the Plaintiff sues to invalidate the whole ordinance based on overbreadth, and wins in the 11th based on the defects above. The real story is how the 11th tries to "fix" the apparent inconsistencies in some of its earlier opinions.
Here's the upshot: once you're adversely affected by any part of a regulation that implicates the 1st amendment, you have standing to attack any part of the ordinance that also covers your activities (even if that wasn't the basis of the adverse decision) on the basis that it is overbroad as it would apply to other persons and their speech. After noting that the overbreadth doctrine does not eliminate standing requirements for getting into federal court, the opinion lays out this critical set of distinctions:
First Amendment standing analysis may be complicated further by the overbreadth doctrine, which serves as an exception to the prudential principle noted above. Under overbreadth, “a party may bring a First Amendment case asserting the rights of third parties if a statute is constitutionally applied to the litigant but might be unconstitutionally applied to third parties not before the court.” CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1270-71 (11th Cir. 2006) (internal quotation marks omitted). Significantly, the overbreadth doctrine does not relieve a plaintiff from having to establish constitutional standing; it is simply an exception to one of the prudential requirements. See id. at 1270 (noting that“[t]he overbreadth doctrine does not relieve a plaintiff of the burden to prove constitutional standing”). Indeed, a plaintiff may bring an overbreadth challenge to only those provisions of a law or ordinance that “affect activitiesties. " Id. at 1273. In other words, the overbreadth doctrine does not change the statutes or provisions of an ordinance a plaintiff may challenge; she can only contest those which actually caused her injury. Rather, the overbreadth doctrine simply allows a plaintiff to bring a facial challenge to a provision of law that caused her injury, regardless of whether the provision’s regulation of her conduct in particular was constitutional.
Based on this analysis, the Court held that the Plaintiff could challenge not only the sectthe ordinancerdiance that provided the location and setback provisions under which the sign permits were denied, but also could "look through" to the intent and definition sections, which contained the prohibition against signs not permitted and the definitions and provisions that created the violations of the 1st amendment as applied to other speakers or actors.
Again, a critical opinion for anyone who writes, defends or attacks sign ordinances and permits.
Monday, August 21, 2006
Our local government attorney friends LOVE citing G.B.V. on the point that a reviewing court can only quash in a petition for cert. But what about when the lower tribunal fails to adhere to the law of the case, or - as in the case below - continually fails to provide fair hearings?
In this opinion, the 4th Circuit Judge takes on the Division for the unprofessional and unfair behavior of its (non attorney, clearly not qualified) hearing officer, and not only quashes but orders the Division to restore the Petitioner's license.
So when the 1st DCA quashes this, will we finally get a case before the Supremes where they can reconsider their position in light of the clear failure of so many, many, many lower tribunals to play by the rules? The "remand only" rule was created in, and supported by, the context of FORMAL quasi-judicial proceedings, with real rules, staffs with attorneys, and formal fact finding and general good behavior. That is, the entire rule is predicated on the idea that the lower tribunals generally try and do provide due process, and are committed to implementing the rule of law.
Unfortunately, that's just not true with these Division "magistrates" and local quasi-judicial tribunals.
Anyway, here's the opinion:
13 Fla. L. Weekly Supp. 756a
THOMAS MATTHEW BELL, Petitioner, vs. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. Circuit Court, 4th Judicial Circuit (Appellate) in and for Duval County. Case No. 16-2005-CA-7538, Division CV-E. May 15, 2006. Counsel: David M. Robbins, Epstein & Robbins, Jacksonville, for Petitioner. Kathy Jimenez-Morales, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Respondent.
(BERNARD NACHMAN, J.) This cause came before this Court upon the Petition for Writ of Certiorari filed by the Petitioner, Thomas Matthew Bell on December 5, 2005. The Petitioner seeks review of the Final Order of License Suspension of the Respondent, Department of Highway Safety and Motor Vehicles sustaining the administrative suspension of his driver's license. This Court has reviewed the briefs filed by the parties and has considered oral arguments presented. This Court, having jurisdiction, finds that the Petition for Writ of Certiorari was timely filed.
In his petition, the Petitioner has raised two (2) issues. The Petitioner alleges first, he alleges that there is not competent and substantial evidence in the record to uphold the findings of the hearing officer that he was lawfully arrested. This Court finds to the contrary as to this issue. Second, he contends that he was denied due process as a result of the actions of the hearing officer. This Court agrees with that contention and concludes that the Petition should be granted as to those grounds.
The transcript of the two separate hearings conducted by the hearing officer support Petitioner's assertion that the hearing officer departed from her role as a neutral and detached magistrate and failed to preserve the impression of impartiality to which Petitioner was entitled. See Department of Highway Safety and Motor Vehicles v. Pitts, 815 So.2d 738 (Fla. 1st DCA 2002); Ducre v. State, 768 So.2d 1159 (Fla. 2d DCA 2000) (“Whether appearing before a hearing officer or the court, a litigant should have the same confidence in the impartiality of the fact-finder”).
The hearing officer's lack of neutrality was evident. At the beginning of the hearing, Counsel for Petitioner noted that an officer whom he had subpoenaed failed to appear. Counsel moved to invalidate the administrative suspension due to the failure of this law enforcement officer witness to appear. Counsel advised Hearing Officer (hereinafter “HO”) Labbe that he had been present when Hearing Officer Supervisor (hereinafter “HOS”) Wright had denied this witness's request to be excused from the hearing. Setting the tone for the entire proceedings, HO Labbe insisted that Counsel was in error as to whether the witness had been excused. HOS Wright had to be brought into the hearing at which time she confirmed that Counsel was correct. After HOS Wright left the room HO Labbe overruled the supervisor's decision and announced that she was excusing the witness herself. HO Labbe requested that Counsel proffer the relevance of the witness she had just excused. When Counsel proffered what the witness had told him, HO Labbe then accused Counsel of engaging in an improper ex parte conversation with the witness. In addition to accusing counsel of this improper conduct, HO Labbe continuously interrupted counsel throughout the hearing.
The Petitioner had served a subpoena duces tecum for the original DVD recording to be brought to the hearing. The recording that was brought to the hearing was a copy. There were obvious gaps in the recording. When it became apparent that there was a problem with the copy, the Petitioner requested a continuance so that the original could be brought. The hearing officer responded by questioning Officer Blackstone about what was missing from the DVD. HO Labbe set out her purpose for these questions stating, “[w]hat I'm trying to determine is if I even have to be worried about this other original cassette. If there's something that's going to be on that cassette that's going to have caused you to not have arrested him.” HO Labbe improperly focused on whether Officer Blackstone believed that the recording was beneficial to the Petitioner instead of recognizing the Petitioner's due process right to present evidence.
Near the end of the first hearing, Counsel attempted to file a motion to disqualify HO Labbe based upon what had occurred during the hearing. Counsel handed the written motion to the hearing officer. The hearing officer began to write on the motion and improperly disputed the factual assertions. The motion was subsequently denied and the hearing was continued with HO Labbe.
The hearing was continued to October 28, 2005. Officer Blackstone was served with a subpoena duces tecum to appear at this hearing with the original DVD. Officer Blackstone appeared with a copy again. Officer Blackstone testified that the decision to bring a copy was based upon an ex parte conversation between counsel for the Sheriff's Office and the Bureau of Administrative Reviews. The Petitioner was not advised of this ex parte communication or the decision to effectively alter the subpoena duces tecum until arriving at the hearing.
The overall atmosphere and cumulative impact of the above examples as reflected in the transcripts evidences a failure to afford the Petitioner the fair hearing and due process to which he was entitled. As a result, the administrative suspension of the Petitioner's driver's license cannot be sustained.
Furthermore, although this Court has remanded these matters in the past, in this case the Court chooses not to do so. As noted by Judge Haldane Taylor in Gonzales v. Department of Highway Safety and Motor Vehicles, [9 Fla. L. Weekly Supp. 75a] (Fla.4th Cir. Ct., Nov. 30, 2001), “. . .a failure to preserve an appearance of neutrality seems to be a problem with the Respondent's hearing officers. Numerous Orders from this Circuit have had no apparent effect on the conduct of hearing officers in this regard. Therefore, this Court concludes that remand would serve no purpose in this case, and that the only appropriate remedy is to quash the Final Order of License Suspension.”
Upon consideration, it is hereby,
ORDERED AND ADJUDGED:
1. The Petition for Writ of Certiorari is GRANTED;
2. The suspension of the Petitioner's driver's license entered by the Department effective November 3, 2005, is hereby QUASHED;
3. The Department shall immediately reinstate the Petitioner's driving privilege, if otherwise eligible, and remove from the Petitioner's permanent record any entry which reflects the administrative suspension that was sustained by the administrative order.
The court started out by dismissing the Petitioners' due process claims on the basis that they failed to make objections on the record to a) ex parte contacts, b) surprise in a party offering a late filed new report.
Here's critical language that could be used by any and all sides in cert actions:
OK, this is good stuff - and keep it handy for when the chairman of a planning board or county commission objects to your objections. The problem, of course, is that most local government procedures don't formally recognize parties other than the applicant and the staff, and there's generally no way to object other than to stand up from the audience and interrupt.
The Petitioners did not object to the fact that there were ex parte
communications, nor request any additional clarification as to the nature or
extent of such communications. The law is well-settled that issues may not be
raised for the first time on certiorari review which were not presented to the
lower tribunal during the quasi-judicial hearing. See G.B.V. International, Ltd.
v. Broward County, 709 So.2d 155, 155 (Fla. 4th DCA 1998) (quashing decision of
circuit court for deciding an issue that was neither presented or decided by the
Commission), quashed in part on other grounds, 787 So.2d 838 (Fla. 2001); see
also Scritchfield v. Dept. of Highway Safety and Motor Vehicles, 648 So.2d 1246,
1247 (Fla. 2d DCA 1995) (stating that without objection the argument has been
waived). Hence, the Court finds that the Petitioners have waived this argument
as no objection was made during the proceedings below. Had a proper objection
been made, the City Commissioners could have effectively dealt with the
The real use of this language, however, is for those of us poor souls who get a completely BS denial at the hands of a commission, file cert, and then find the government attorney raising all kinds of new issues ("gee, your honr, they weren't compatible with policy x.y.z," even though no one ever raised that policy during the hearing).
But then on to the bad stuff (and this is bad regardless of whether you represent neighbors/environmental groups or developers/landowners). The Court abandons its responsibility to "say what the law is" (see 3d DCA cases earlier) to the local government, in this language:
The Court is not entitled to reweigh the evidence or substitute its judgment for
that of the agency. See id. As aptly explained by the Florida Supreme Court
in Dusseau v. Metropolitan Dade County Board of County Commissioners, 794
So.2d 1270, 1276 (Fla. 2001), the certiorari standard of review requires
this Court to defer to the City's “superior technical expertise and special
vantage point” in its policy determinations and factual findings. As Dusseau
Horse hockey. A city commission, county commission or even planning commission has no special expertise at interpreting ordinances. They do have political agendas. This judicial attempt to establish some kind of "principled abdication" of its constitutional responsibility to ensure that the law is fairly and reasonable intepreted is nothing but a cop out, one that leaves the polity at the mercy of the government.
The issue before this court is not whether the agency's decision is the “best”
decision or the “right” decision or even a “wise” decision, for these are
technical and policy-based determinations properly within the purview of the
agency. The circuit court has no training or experience -- and is inherently
unsuited -- to sit as a roving “super agency” with plenary oversight of such
And I'll also say that while I think the right result occured, the court also erred in how it approached the analysis of whether the WalMart was a permitted use in the zone district. There was a clear ambiguity or inconsistency between the intent of the district - to allow specialty retail -- and the specific permitted uses -- which included retail stores (without limitation) and shopping centers.
The issue: "specialty retail" is a land use and transportation planning term of art, and it does NOT include big box stores like WalMarts. Based on the intent of the district, as properly interpreted by planning experts, not commissioners, the WalMart was NOT permitted. However, the actual permitted uses included retail uses and shopping centers. Absent a seperate definition of "big box" that distinguished these bohemeths from true specialty retail uses, the rules of construction (remember - zoning in derogation of private property rights, so interpretation goes to the landowner) demand that the more specific (the use) rule over the more general (the intent). THAT'S the kind of analysis we need from our courts to ensure that zoning regulations are interpreted fairly for all sides. Abandoning that reasoning to the local government (unless they actually do it and do it right - HAH), is like putting Dick Chaney in charge of the Justice Dep'ts Division of Civil Rights - or appointing him to sit on a FISA tribunal.
Finally, the court rolled out the tired (and IMHO wrong at 1st tier review) old "miscarriage of justice" standard that started out its life as a policy to help narrow 2d tier review, but now has got a life of its own ensuring that the circuit courts don't actually do justice in these cases (violating our right to access to the courts, if you think about it).
Anyway - here's the the opinion:
13 Fla. L. Weekly Supp. 774a
CONCERNED CITIZENS OF TARPON SPRINGS, INC., HARRY BATUYIOS, DENNIS BROWN, DOROTHY BROWN, WENDY CROSATO, BRIAN R. CROSATO, JEAN DORRELL, HELEN GLADWIN, BILL GLADWIN, WILLIAM HOOPER, CHRIS HRABOVSKY, RICHARD MURDACH, EDWARD SKAALAND, JOAN SKAALAND, JOHN K. TARAPANI, CHARLES VAN WINKLE, SHARON VAN WINKLE, and WILLIAM L. VINSON, Petitioners, vs. CITY OF TARPON SPRINGS, FLORIDA, and WAL-MART STORES EAST, LP, Respondents. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 05-0014AP-88B. UCN522005AP000014XXXXCV. March 22, 2006. Counsel: C. Phillip Campbell, Theodore C. Taub, Tammy N. Giroux, and Mark A. Connolly, Tampa. John G. Hubbard, Dunedin. David A. Theriaque, Suzanne Van Wyk, Timothy E. Dennis, Tallahassee.
ORDER DENYING AMENDED PETITION
FOR WRIT OF CERTIORARI
THIS CAUSE came before the Court on the Amended Petition for Writ of Certiorari, the Joint Response to Second Order to Show Cause, and the Petitioners' Reply. Upon consideration of the briefs, the record and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.
The Petitioners, Concerned Citizens of Tarpon Springs, Inc., Harry Batuyios, Dennis Brown, Dorothy Brown, Wendy Crosato, Brian R. Crosato, Jean Dorrell, Helen Gladwin, Bill Gladwin, William Hooper, Chris Hrabovsky, Richard Murdach, Edward Skaaland, Joan Skaaland, John K. Tarapani, Charles Van Winkle, Sharon Van Winkle, and William L. Vinson (Petitioners), seek review of Resolution 2004-63, entered January 19, 2005, by the Respondent, City of Tarpon Springs, Florida (City), to approve the site plan, with conditions, submitted by the Respondent, Wal-Mart Stores East, LP (Wal-Mart). These Petitioners have standing.1 In reviewing the administrative action taken by the City, the Court must consider whether the Petitioners were afforded procedural due process, whether the essential requirements of law were observed and whether the Resolution is supported by competent substantial evidence. See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995) (setting forth the standard of certiorari review of administrative action).
The record shows that Wal-Mart submitted a site plan proposal for the development of a 74.4 acre parcel of land, described as Lot 1, located off of U.S. 19 and bordered on one side by the Anclote River. There are two other designated lots, Lot 2 and Lot 3, and other designated tracts on the property which do not directly involve the Wal-Mart proposal. The land is currently zoned General Business (GB), which specifically includes “Retail Sales Establishments” and “Shopping Centers” as permitted uses. Retail Sales Establishments is defined in the City's Code as: “Any establishment where the primary use is the sale of goods or merchandise to the general public for personal or household consumption.”
After a 13-hour public hearing, the Board of Commissioners of the City of Tarpon Springs (City Commission), in a 3 to 2 vote, approved Resolution 2004-63. The Resolution approved the site plan with several conditions, to wit:
1. The developer is responsible for acquiring all other jurisdictional permits and for meeting the minimum criteria of the Land Development Code.
2. Construction plans, signed and sealed by a registered engineer licensed to practice in the State of Florida, must be submitted within one year of the date of final site plan approval.
3. All conditions and requirements of the final Development Agreement (ATTACHMENT B) must be performed on a timely basis, as applicable.
4. Master meters and utility line adjustments per the requirements of the City of Tarpon Springs Utility Division.
5. Plat approval is required for the subdivision into three lots.
6. Submission of revised traffic impact study with follow-on review by TBE Group for compliance with City of Tarpon Springs transportation concurrency management requirements or reduction of scope of project to within 50% of allowable floor area ratio. No development permits will be issued until concurrency requirements are accomplished.
7. A 50' buffer is required along the Anclote River.
8. A physical barrier is required between the Anclote River and the building/parking lot to prevent run-off into the river.
The Development Agreement, incorporated into the Resolution as Attachment B, is a 24-page document that sets forth several more conditions and restrictions, including that the owner must seek rezoning of Lot 2 from GB to Residential Office (RO), within 18 months of the effective date of the Development Agreement, to be compatible with the City's land-use classification. The Development Agreement clarifies that no residential development is permitted without the appropriate permits to allow residential use. Lot 3 is to be limited to development of a maximum of 8,000 square feet of commercial retail.
The Petitioners have raised several issues before this Court. The Petitioners first argue that they were denied due process as the City Commission failed to disclose the substance of ex parte communications; the City failed to require rezoning of the subject property, and; Wal-Mart failed to timely submit a traffic study. The Petitioners next argue that the City's decision does not conform to the essential requirements of law because of incomplete abandonment of development of regional impact; the site plan violates the City's Code, and; the site plan violates the City's comprehensive land development plan. Lastly, the Petitioners argue that the Resolution is not supported by competent substantial evidence because the traffic study was incomplete and the City's decision was influenced by prejudice and bias.
Before addressing each issue, the Court reiterates that in conducting certiorari review of the underlying action it has neither the duty nor the authority to decide whether it is good public policy to allow Wal-Mart to build a supercenter at this particular location. Rather, as set forth in Haines City, this Court's review is governed by a three-part standard: whether procedural due process has been accorded; whether the essential requirements of law were observed; and, whether the findings and judgment are supported by competent substantial evidence. See Haines City, 658 So.2d at 530. In applying the procedural due process prong, the Court must consider whether the Petitioners were provided with fair notice and an opportunity to be heard. See Keys Citizen for Responsible Government, Inc. v. Florida Keys Aqueduct Authority, 795 So.2d 940, 938 (Fla. 2001) (explaining the parameters of due process within an administrative proceeding). In determining whether the City observed the essential requirements of law, the Court must consider whether an error occurred and, if so, whether such error resulted in a gross miscarriage of justice. See Haines, 658 So.2d at 527; see also Housing Authority of the City of Tampa v. Burton, 874 So.2d 6, 8 (Fla. 2d DCA 2004) (explaining that in determining whether there has been a departure from the essential requirements of law, the appellate court “should not be as concerned with the mere existence of legal error as much as with the seriousness of the error”).
In evaluating the last prong of review, competent substantial evidence has been described as evidence that is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.” See Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002) (citing De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957). The Court is not entitled to reweigh the evidence or substitute its judgment for that of the agency. See id. As aptly explained by the Florida Supreme Court in Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1276 (Fla. 2001), the certiorari standard of review requires this Court to defer to the City's “superior technical expertise and special vantage point” in its policy determinations and factual findings. As Dusseau further clarified,
The issue before this court is not whether the agency's decision is the “best” decision or the “right” decision or even a “wise” decision, for these are technical and policy-based determinations properly within the purview of the agency. The circuit court has no training or experience -- and is inherently unsuited -- to sit as a roving “super agency” with plenary oversight of such matters.
With that standard in mind, the Court reaches the following decision as to each issue.
1. Failure to disclose substance of ex parte communications
The Court finds that before the hearing began on January 18th, the City Commissioners disclosed on the record any ex parte communications they had with either side. All of the Commissioners disclosed that they had talked with opponents of the site plan proposal; 4 of the 5 Commissioners disclosed that they had talked with Wal-Mart representatives. The Petitioners did not object to the fact that there were ex parte communications, nor request any additional clarification as to the nature or extent of such communications. The law is well-settled that issues may not be raised for the first time on certiorari review which were not presented to the lower tribunal during the quasi-judicial hearing. See G.B.V. International, Ltd. v. Broward County, 709 So.2d 155, 155 (Fla. 4th DCA 1998) (quashing decision of circuit court for deciding an issue that was neither presented or decided by the Commission), quashed in part on other grounds, 787 So.2d 838 (Fla. 2001); see also Scritchfield v. Dept. of Highway Safety and Motor Vehicles, 648 So.2d 1246, 1247 (Fla. 2d DCA 1995) (stating that without objection the argument has been waived). Hence, the Court finds that the Petitioners have waived this argument as no objection was made during the proceedings below. Had a proper objection been made, the City Commissioners could have effectively dealt with the Petitioners' concerns.
2. Failure to require rezoning of the subject property
There are no facts, nor any legal authority, cited by the Petitioners that the City rezoned the property, de facto, without requiring Wal-Mart to go through the necessary rezoning process. The Petitioners' argument is that the property's current zoning, GB, does not allow for the development of a Wal-Mart Supercenter. As explained in greater depth below, the Court finds that the proposed development of Lot 1 squarely falls within the GB zoning classification. Further, there is no dispute that Lot 2, which is not a part of the development of Lot 1, is not properly zoned for residential development. As a condition of the Resolution, Wal-Mart will be required to go through the proper rezoning process before any residential development can proceed at which time the Petitioners can present any objections they may have to such proposed development.
3. Failure to timely submit traffic study
As with the ex parte communications issue, the Court finds that the Petitioners have waived this argument by failing to expressly object to the introduction of the Supplement Traffic Analysis during the January 18th hearing. See id. The Petitioners did not request additional time to review the traffic report. Further, even if the Petitioners had not waived this argument, the record shows that the Petitioners were fully afforded the right to present evidence and testimony during the January 18th hearing, as well as the opportunity to cross-examine the traffic experts presented by the City and Wal-Mart. Under these facts, the Courts finds that the Petitioners were afforded procedural due process.
Essential Requirements of Law
1. Incomplete abandonment of development of regional impact
In reviewing this issue, the Court finds that the Petitioners do not have standing to argue this matter as Florida Statutes, § 380.07(2), confers standing only to the owner, developer, or state land planning agency to appeal a DRI development order or abandonment order; even then, the order must be appealed to the Florida Land and Water Adjudicatory Commission. However, assuming this issue were properly before the Court, there is no support for the Petitioners' argument that the DRI Abandonment Order, entered beyond the 90-day time frame due to scheduling delays caused by three hurricanes, is a nullity. See e.g. Caliente Partnership v. Johnston, 604 So.2d 886, 887 (Fla. 2d DCA 1991) (holding that the failure to publish a notice of intent for a plan amendment within the statutorily prescribed forty-five days is not grounds for approval by default); School Board of Leon County v. Weaver, 556 So.2d 443, 446 (Fla. 1st DCA 1990) (holding that failure to enter a final order within the statutorily prescribed ninety days from receipt of a recommended order does not warrant reversal unless the fairness of the proceeding or the correctness of the action is impaired by virtue of the statute's violation).
2. Proposed use of the site plan violates the City's Code: (a) the site plan does not comply with the Code; (b) the site plan circumvents procedural requirements for conditional uses, and; (c) the site plan application is incomplete
The Court finds that the proposed use of the site plan, specifically Lot 1, is a permitted use in a GB zoning. The City's Code, Section 25.11 states, in pertinent part:
(A) The GB District is established to provide for the development of a centralized commercial area where specialty retail, restaurant, office and residential uses are readily available. This district is intended to encourage redevelopment of traditional shopping areas and promote cultural tourism within the National Register Historic District and Cultural Preservation District which function to serve the immediate residential neighborhoods and the community as a whole.
(B) Permitted uses; (15) Retail Sales Establishments; (18) Shopping Centers. (emphasis added).
As previously stated, “Retail Sales Establishment” includes “[a]ny establishment where the primary use is the sale of goods or merchandise to the general public for personal or household consumption.”2
The Petitioners focus on the words “specialty retail” to argue that the proposed development is not a permitted use under GB zoning. However, while the intent of the GB district is to encourage specialty retail, the district does not limit retail solely to “specialty.” Rather, the Code unambiguously and expressly allows for retail sales establishments, as well as shopping centers, with no limitation to specialty retail. The Court finds that the Wal-Mart Supercenter falls squarely within the definition of a “Retail Sales Establishment” and, for all practical purposes, is essentially a Shopping Center. To find that development in the GB zoning is limited only to specialty retail would render portions of the Code a nullity. See Florida Dept. of Revenue v. Florida Municipal Power Agency, 789 So.2d 320, 324 (Fla. 2001) (explaining that a court's function is to interpret statutes to give effect to each word and avoid interpretations that would render portions of it useless); see also Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273, 1286 (Fla. 2000) (same). The Court finds that under these facts, it must defer to the City's interpretation that the proposed Wal-Mart is a permitted use within the GB zoning. See Palm Beach, 772 So.2d at 1283 (explaining that courts will defer to an agency's interpretation of statutes and rules the agency is charge with enforcing unless contrary to law); see also Paloumbis v. City of Miami Beach, 840 So.2d 297, 298-98 (Fla. 3rd DCA 2003) (holding that administrative interpretation of personnel rules is entitled to judicial deference as long as it is within the range of possible interpretations).
3. The site plan violates the comprehensive plan
The Petitioners argue that the City erred in approving the site plan without first requiring Wal-Mart to seek conditional use approval for potential future residential development of Lot 2. However, one condition of the Resolution is that plat approval is required for the subdivision of the property into three lots. Further, the Development Agreement requires the property owner, Wal-Mart, to seek rezoning of Lot 2 from GB to Residential Office (RO), within 18 months of the effective date of the Development Agreement, and further states that no residential development will be permitted without the appropriate permits. As held above, the Petitioners will have an opportunity to be heard if, at some point in the future, Wal-Mart seeks to rezone Lot 2 from GB to RO for residential development. Lastly, to the extent that the Petitioners seek to challenge the of the consistency of the Resolution with the City's Comprehensive Plan, such a challenge must be pursued as an action for declaratory and injunctive relief pursuant to Florida Statutes, § 163.3215(1).3 See Parker v. Leon County, 627 So.2d 476, 478-79 (Fla. 1993); see also Turner v. Sumter County, Board Of County Commissioners, 649 So.2d 276, 276 (Fla. 5th DCA 1993).
Competent substantial evidence
1. Incomplete traffic study
The Court finds that there is nothing in the record to show that the Supplemental Traffic Study was incomplete. Rather, the record shows that the City Commission considered the testimony and evidence presented from the City's Planning and Zoning Director, the City's Development Services Director, the City's traffic consultant, Wal-Mart's project engineer and Wal-Mart's planning expert, along with the Staff Report recommending approval of the Wal-Mart site plan before concluding that the traffic study was sufficient to support its decision to approve the Site Plan. The Court cannot reweigh the evidence nor substitute its judgment for that of the City to arrive at a different conclusion. See Dusseau, supra.
Further, the Court finds that the traffic impact on the proposed development is still subject to review by the City. As set forth in condition # 6 of the Resolution, Wal-Mart must still submit a revised traffic impact study to be reviewed for compliance with the City's transportation concurrency management requirements before any development permits will be issued.
2. Evidence of prejudice and bias
In reviewing the last issue, the Court finds that the City attorney did prepare a memorandum, at the request of the City's Mayor, dated January 10, 2005, and addressed to the City Commission, that outlined possible litigation issues that could arise from granting or denying Wal-Mart's proposed site plan. The Court finds that, standing alone, it is not inappropriate for the City to consider the legal consequences of its actions. In the memorandum, the City Attorney stressed that the City Commission must base its decision on competent substantial evidence presented at the hearing and not on possible litigation that might arise from its decision. While some Commission members may have been influenced, to some degree, by concern about litigation, there is nothing in the record to suggest that this was the basis for any votes. Furthermore, this has nothing to do with the sufficiency of the evidence.
In conclusion, the Court finds that the Petitioners were afforded procedural due process, the City observed the essential requirements of law, and the Resolution is supported by competent substantial evidence. Accordingly, the Petitioners' request for certiorari relief must be denied.
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby denied. (DAVID A. DEMERS, PETER RAMSBERGER, and ANTHONY RONDOLINO, JJ.)
1As a preliminary matter, this Court, in an order entered July 28, 2005, granted, in part, the Respondents' motion to dismiss amended petition based on lack of standing. The motion to dismiss was granted only to the extent that the Court had no jurisdiction over those Petitioners not named in the original petition. Concerned Citizens, incorporated after the underlying hearing but comprised of citizens with standing to appeal, and the remaining named Petitioners were allowed to proceed with the petition for writ of certiorari.
2There is not a definition of “Shopping Center” provided in the record. However, the Court finds that the term Shopping Center is self-explanatory and unambiguous.
3The Court notes that there is a separate declaratory action, filed by the Petitioners pursuant to Florida Statutes, § 163.3215, currently pending at the trial court level.
The travesty below was issued by a 3 judge appellate panel in Pinellas County, which in the same term issued several other similar decisions simply abdicating their responsibility to provide judicial oversight in the name of various policies respecting the "wisdom" of lower governments.
Here's the ugliest (opinion is below, taken as an excerpt from Fla Law Supp): St Pete Code Enforcement decides that a handicapped van is a "commercial vehicle" because it's too high to meet a "domestic vehicle" definition. A commercial vehicle is a "any vehicle and/or equipment not contained within the definition of domestic equipment. that is designed or used for commercial or industrial function. "
The city, and the court, simply ignored the rules of construction that a) demand that zoning regulations be strictly construed against the government, and that b) that courts (and quasi-tribunals) may neither add nor subtractlanguagee from an ordinance. Here, the local government simply wrote the last part out, and then the court found that there was competent substantial evidence to support the application of the ordinance as re-written (noting that the record is completelyy absent of any indication that the van was "designed or used for a commercial or industrial function.")
In effect, the Board put the burden of proof on the applicant - not for the variance, but for the need for one. This is just plain wrong.
BAD, BAD, BAD. We desperately need statutory correction, because nothing else will really fix this. But in the meantime, some appellate direction indicating that lower courts must interpret the law AND NOT DEFER TO SELF SERVING, NON-JUDICIAL (INTEMPERAMENTT OR RESULT) INTERPRETATIONS OF LOCAL BOARDS. The judiciary is our ONLY bulkwart against authoritarianism at that local level. We need the judiciary to take its supervisory role seriously.
And in this case, the result is simply vile. Go on, handicapped people, move outbecausee you're not welcome in a good residential neighborhood anymore. Or at least not if actually want to have access to transportation of your own. Maybe you can live in your van behind a mall somewhere. It's enough to cause one to wish Lou Gherig's disease on whatever self-righteous code enforcement officer who actually brought this case forward.
Here's the opinion. The really bad stuff is in bold.
13 Fla. L. Weekly Supp. 776a
FRANK RIGO, Petitioner, vs. CITY OF ST. PETERSBURG, FLORIDA, and the BOARD OF ADJUSTMENT of the CITY OF ST. PETERSBURG, FLORIDA, Respondents. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 05-0065AP-88B. UCN522005AP000065XXXXCV. April 25, 2006. Counsel: Aubrey O. Dicus, St. Petersburg. Pamela D. Cichon, Sr. Assistant City Attorney, St. Petersburg.
ORDER DENYING PETITION FOR WRIT OF CERTIORARI
THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the
Response, and the Reply. Upon consideration of the briefs, the record and being
otherwise fully advised, the Court finds that the Petition must be denied as set
The Petitioner, Frank Rigo (Rigo), seeks review of the
Development Order, entered July 15, 2005, in which the Respondents, City of St.
Petersburg, Florida (City) and the Board of Adjustment of the city of St.
Petersburg, Florida (Board), denied Rigo's variance request to allow a
commercial vehicle to be parked on his residential property. In reviewing the
administrative action taken by the Board, the Court must consider whether the
Petitioner was afforded procedural due process, whether essential requirements
of law were observed, and whether the Board's findings and judgment are
supported by competent substantial evidence. See Haines City Community
Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard
of certiorari review of administrative action).
The record shows that Rigo lives within a residential zoning district within the City of St. Petersburg. Rigo is physically impaired and relies on handicap-equipped vehicles for transportation. The subject van measures 7.5 feet in height, is less than 20
feet in length, and resembles a box or bread van. The van was fitted by Rigo to
include a wheelchair lift. Rigo's property has a driveway in the front, entering
from a public roadway, where the van is parked. The Codes Compliance Assistance
Division determined that the van was a commercial vehicle/equipment and cited
Rigo for violating the City of St. Petersburg City Code (Code), Sec. 29-209(c),
which prohibits the parking of commercial equipment in any residential district.
Rigo filed an application for a variance to allow his van to be parked at
his residence. Between filing his application and the variance request hearing,
Rigo re-registered the van from Â?commercial vehicleÂ? to Â?handicapped personal
vehicle.Â? After the hearing, the Board denied the variance request finding that
the request did not meet Code criteria. The Board gave Rigo one year from the
date of the hearing to remove the van from his residential property.
Before this Court, Rigo argues that the Board's decision is not supported by competent substantial evidence and that the Board departed from the essential requirements of law during the proceedings below. Initially, the Court finds that the Code generally allows for the parking of passenger motor vehicles and motorcycles on residential property. See Code, Sec. 29-209(a). To be considered a passenger
motor vehicle, the vehicle must be 20 feet or less in overall length and 7 feet
or less in overall height. It is undisputed that Rigo's van is 7.5 feet in
height and thus falls outside of the definition of a passenger motor vehicle.
Â?Commercial equipmentÂ? is defined in the City's Code as Â?any vehicle and/or
equipment not contained within the definition of Â?domestic equipment'1 which is
designed or used for a commercial or industrial function. . .Â? See Code, Sec.
29-2. The Code does allow one commercial vehicle, designed as a van or pick-up
truck, to be parked on residential property but only if the commercial vehicle
meets the length and height restrictions of a passenger motor vehicle, 20 feet
or less in length and 7 feet or less in height. As recognized above, the
Petitioner's vehicle does not meet this test.
While the record does not show what the van was originally designed for, the Court finds that under these facts, it must defer to the City's interpretation that the subject van is a prohibited commercial vehicle. See Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273, 1283 (Fla. 2000)(explaining that courts will defer to an agency's interpretation of statutes and rules the agency is charge with
enforcing unless contrary to law); see also Paloumbis v. City of Miami Beach, 840 So.2d 297, 298-98 (Fla. 3rd DCA 2003)(holding that administrative interpretation of personnel rules is entitled to judicial deference as long as it is within the range of possible interpretations). It is undisputed that the van exceeds the height restrictions for a passenger or commercial vehicle to be parked on residential property. The Court finds that it is of no consequence that the van is currently registered as a handicapped personal vehicle.
The Court also finds that it must defer to the City's finding that Rigo did not meet the requirements for a variance. See Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1276 (Fla. 2001) (providing that the certiorari standard of review requires this Court to defer to the City's Â?superior technical expertise and special vantage pointÂ? in its policy determinations and factual findings). The burden was on Rigo to demonstrate Â?an
exceptional and unique hardship to the individual landowner, unique to that
parcel and not shared by other property owners.Â? See Nance v. Town of
Indialantic, 419 So.2d 1041, 1041 (Fla. 1982). The Board considered the City's
Staff Report which outlined the variance criteria that Rigo's application failed
to meet, as well as testimony that Rigo's previous handicap-equipped van was
code compliant and used by Rigo for 10 years.
Accordingly, the Court finds that there is competent substantial evidence in the record to support the Board's decision and this Court is not permitted to reweigh the evidence presented. See Heggs, 658 So.2d at 530; see also Town of Manalapan v. Gyongyosi, 828 So.2d 1029, 1033 (Fla. 4th DCA 2002). Likewise, the Court can find no support for Rigo's argument that the City departed from the essential requirements of law in the proceedings below. Hence, the request for certiorari
relief must be denied.
Therefore, it is,
ORDERED AND ADJUDGED that Petition for Writ of Certiorari is hereby denied. (DAVID A. DEMERS, PETER RAMSBERGER, and ANTHONY RONDOLINO, JJ.)
Sunday, August 20, 2006
OK, major disclosure: I'm directly involved in parallel litigation against CRG on the parallel issue of whether they can use a referendum process already in the city charter to repeal a plan amendment, and I've made the arguments rejected by the 2d DCA to the same trial judge.
Let's start with what the court got right. It found a) that the city had standing to bring up the constitutionality of proposed charter amendments, and b) that the trial court had jurisdiction to consider them prior to the election. Despite years of having this put to bed, the CRG had argued that the city couldn't fight this issue, and that it had to wait until after the election anyway.
The critical issues were whether the amendment procedures provided in the statute preempted the imposition of additional local requirements. In particular, the growth managment act has a "sole process" provision, and the question was whether it really means what it says. The counter was that there is a prohibition in the chapter against using referenda for plan amendments that affect 5 or fewer parcels, or for development orders. The court interpreted this as implicitly authorizing a procedure for using referenda for amendments that involve more than 5 parcels, and that referenda therefore were somehow authorized as part of the statutory process.
This is really, really weak logic when you think about it, especially in light of the purpose and needs of the statute and planning. The court ignored a slew of absolute real world problems that were also ignored by the Florida Supreme Court in approving the Hometown Demogagy amendment.
First, local governments are REQUIRED to update their plans annually for capital improvements and other issues. Roads, sewer lines, and other public facilities cannot be built if they are are not consistent with an adopted plan. Therefore, requiring all general plan amendments to be approved by referendum not only risks major disruption, it interferes with multiple functions of governments, including both executive and legislative functions.
Second, decisions (pro or con) on plan amendments must be based on data and analysis under the statute, not just on raw political preference. That is, while plan amendments are legislative, they also are constrained by actual (as opposed to assumed) facts and data. The amendment process completely, utterly and totally destroys that critical basis for the validity of the plan and planning in general. Instead, it renders the plan nothing more than a popularity forum to to allow existing residents to convert public property (like available capacity in a public street) to their private use.
The court simply didn't consider the second issue and got the first issue dead wrong. It believed the nonsensical position of the CRG that the Administration Commission could sanction a local government for not adopting plans and that the regional planning council could adopt any missing elements. Well, folks, that just BS, a blatent misrepresentation of the law by the CRG, and hopefully will be fixed on reconsideration. Those parts of the statute only applied to the original plan adoptions under the statute, NOT to amendments to plans that already had been found in compliance.
So it all comes down to public plebescites on land use. Let's be clear: if planning is by referenda, there is no planning. There's just saying no to change, regardless of the needs of the larger community and whatever "rights" might be left to landowners.
And some will say this is really tacky (if not inflammatory) but the reason we have a constitution and limits on direct democracy is that voting or democratic processes don't generally promote democracy: remember always that Hitler was elected democratically.
Well, there are some other fights on this issues still to come. For example, article i, section 5 of the constitution requires that referenda be as "provided by law." That means STATE LAW, not a local charter. Well, there's no explicit provision for conducting referenda on plan amendments that you can find anywhere in the Florida Statutes, and to my knowledge, there's no special act authorizing St Pete Beach to have such referenda.
So, anyway, the forces of demogagy, bad planning, and the conversion of public infrastructure to the private use of existing residents won this time. Too bad -- at some point they're just asking for the whole process to be gutted or legislatively directed to sidestep all this fascistic psuedo-democracy.
Saturday, August 12, 2006
5th Flip Flops on Rehearing - Best Diversified does NOT get an Inverse Condemnation Judgment (or File that Bert Harris Claim Right)
The facts seem all over the place if you compare the opinions, at least insofar as they apply to whether the landfill could accept fill to be closed. Judge Sharp seems to have switched sides based on a view that the county would have allowed the owner to pay to have clean fill brought in to close the landfill -- even thought that isn't a "use" and wouldn't leave the property with other uses. The landowner appears to have wanted to have a permit to bring in clean C&D fill to cover the other fill.
OK, so the taking goes down. One thing that I find a serious issue in both opinions is that they find no taking in the denial of permits to continue operating the landfill under the "nuisance" exception of Lucas. The problem is that no-one ever tried to shut down the operation as a nuisance. They simply claimed "issues" that were "nuisance like" in the permitting process. The problem is that actual nuiscance doctrine always involves balancing -- an activity isn't always a nuisance just because it has some objectionable characteristics.
Let's be clear: the 5th found the DEP found that the activity was a public nuisance. But such a determination is an action in tort. DEP has never been given any authority to try nuisance torts. AS A MATTER OF THE SEPERATION OF POWERS, DEP DOES NOT HAVE THE AUHTORITY TO DETERMINE AND DECLARE A LANDFILL TO BE A PUBLIC NUISANCE. Those powers are set forth in section 403.704, Fla. Stat. and permit standards are set forth in sectin 403.707. While the Dep't has LOTS of ennumerated powers, the power to declare a public nuisance is not one of them. But, hey, when did a little thing like not having the power to abrogate the common law stop a zealous agency attorney (what, his/her oath as an attorney? respect for the constitution? ) ?
The court's approach here seems to indicate that if there is anything objectionable, the local government or a state agency can declare a nuisance without having to litigate the nuisance under the common law, and evade takings responsibility at the same time.
BUT THE BIG issue is that the landowner might have succeeded in a Bert Harris claim (which he won below) except that the 5th found (in a footnote) that he had not complied with the statutory requirement of filing a claim. It also found that Bert Harris liability doesn't attach to the abatement of a public nuisance. But if the landowner HAD filed the appraisal, at least there would be a reasonable fight over damages under that Act. Moreover, even if the denial of the landfill were not compensable, if there were no other uses left to the property, there may have been Bert Harris liability anyway.
Seems like a silly piece of legislative oversight that could have dramatic impact on the fiscal viability of charter schools.
The case is Remington v. Education Foundation, here's the link to the opinion.
Friday, August 11, 2006
In this case, the applicant filed a site plan for a new project. The City had (as do some others) an "area wide density" inside a Regional Activity Center. It then appeared that there was no residential density left to allocate (we are not told what uses might be left to the property), so the site plan was neither approved nor denied, but remained "open". All other issues had been addressed except the availability of density. Under the local code a site plan remains open until approved or denied.
And (at least based on later allegation) the City starts a plan amendment process that might allocate more density to the Regional Activity Center.
But then, lo!, the City simply decides that, at this point, the site plan no longer exists! Not denied (which might have triggered standing for an administrative appeal, or if none were available, then a dec action, suit under Bert Harris, takings or some other theory), but simply non-extent.
So the developer files a declaratory action to determine, basically, whether it had the right to "stand in line" until density become available. The City's response: sorry, you have no standing. You can't claim when rights might be available, so you don't have any issue to decide. It even convinced the circuit court to dismiss the action with prejudice.
The 4th reversed, holding that there was a real and present controversy with respect to the question of whether the developer has rights in the site plan to density once (and whether) it becomes available. Even though that availability is a future event, the determination is a present need.
And while the court never reaches it (probably not in the record) we are left to ponder why the City would behave this way. Does it want the density to go to another developer? Does it want to change the rules against some aspect of this site plan? Does it simply want to get more review fees? Are there some other vested rights that the City wants to defeat?
Let's be clear: as wrong as it is, the developer almost certainly would have no due process claim under the 14th amendment that could be enforced through an action under USC s1983 (with attorney's fees at the end) because the court would find that the developer had no "property" in the permit (though the permit is the expression of the government regulation of the land). Whether due process under the Florida constitution would provide some protection, we don't know, because it hasn't really been litigated separately -- but historically Florida courts would give that protection.
But I suspect that the City was taking the view that if a developer doesn't have a property right that would be recognized under federal due process principles, it didn't have an "interest" that could be protected by a declaratory action. Thanks to the 4th DCA for finding otherwise.
In Auerbach v. City of Miami, 929 So.2d 623 (Fla. 3d DCA 2006), here's the link to the 3d DCA opinion, the court overturned a circuit court's refusal to quash a variance (though it upheld the court's decision to uphold a major special use permits). In language that clearly holds that the courts SHOULD actively police the decisions of zoning tribunals, the court wrote:
As in numerous prior cases, therefore, including many, like this one, on
“second-tier” review of a circuit court decision, quashal of the variance is
required. On the other hand, by invalidating the variance, we reaffirm
this Court’s solemn promise, which it has steadfastly honored, that
"[t]he law . . . will not and cannot approve a zoning regulation or any governmental
action adversely affecting the rights of others which is based on no more than
the fact that those who support it have the power to work their will." Allapattah Cmty. Ass’n, Inc. of Fla. v. City of Miami, 379 So. 2d 387, 394 (Fla. 3d DCA 1980), cert. denied, 386 So. 2d 635 (Fla. 1980).
(internal citations omitted, quotation reformatted to work for the web).
While Allapattah involved the approval of a development over the objections of surrounding neighborhoods, the language applies equally to the denial of a development order at the behest of a complaining public.
The Court went on in a footnote to address the issue of whether the failure to follow the law constituted a “miscarriage of justice” and suggested that ANYTIME the lower tribunal fails to follow the law, a miscarriage has occurred:
The respondents seem to suggest that the simple, clear and direct violation ofMaybe what we're seeing is a reassertion of the proper role of the judiciary after years of allowing local governments to do what they want without effective judicial review, whichever way that decision happens to go.
the law, which we find here without “weighing” or “evaluating” the non-existent
evidence of a hardship, may be justified by claims (a) that the variance may
render the project more aesthetically pleasing; or (b) more economically
rewarding; or (c) that fixing the results of improperly granting the variance
may be expensive or inconvenient; (d) that the City of Miami authorities thought
that the variance was generally a good idea; or (e) that the violation was, in the broad scheme of things, too minor to warrant our attention. Notwithstanding any or all of this, it is the unshirkable obligation of the courts, on whatever “tier” of consideration, “to say what the law is” and to effect that judgment. Failing to do so in this case would create both a direct conflict with these decisions, and an unjustified approval of the obvious failure of the circuit court to apply the correct law and of the resulting “miscarriage of justice” which occurred below.
Wednesday, July 19, 2006
The 3d granted cert and quashed a circuit court's opinion in a cert case because the lower court's opinion demonstrated a lack of clarity regarding its role and the standards that it should or could apply. In so doing, the 3d expressed an expansive view of the rights of a petitioner to have meaningful review AND an expansive view of the nature of the remedial instructions that the circuit court can provide.
Here's the guts of the opinion, emphasis is mine:
Ok - this decision is CRITICAL for land use practioners who constantly get hosed by local goverment attorneys who emphasis the "limited scope of review" in cert and claim that the 2d tier standard limiting it to addressing a "miscarriage of justice" applies to 1st tier claims.
On first-tier certiorari review from an administrative decision, "the circuit court must determine whether procedural due process is accorded, whether the essential requirements of the law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence." City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). The Petitioner is, in effect, entitled to consideration of whether the administrative agency followed its laws and regulations, and whether the agency’s findings are supported by competent substantial evidence. Baker v. Metro. Dade County, 774 So. 2d 14 (Fla. 3d DCA 2001). Thus, at first tier level, the circuit court may correct any errors made below: jurisdictional, procedural or substantive; and judgments may be modified, reversed, remanded with directions, or affirmed. See G-W Dev. Corp. v. Village of N. Palm Beach Zoning Bd. & Adjustment, 317 So. 2d 828, 830-831 (Fla. 4th DCA 1975).
FIRST - the Petitioner is ENTITLED to consideration of whether the agency followed its laws and regulations and whether the decision is supported by CSE. They forgot the constitution, but we can take it that constitutional issues go along for the ride here. Then, the court may correct ANY ERRORS made below, jurisdictional, procedural or subantive. Not just errors that rise to a miscarriage of justice. Finally, the court may modify, reverse, or remand with instructions - not just remand.
Note that the last line seems to fly in the face of the "just quash" approach that the the Fla. Supremes adopted in GBV. But in that case, the court tried to order that the lower court grant the development order. The third is saying something more limited: the trial court can tell the agency (or board acting quasi-judicially) what needs to be done to correct the error. And note that if the court does this, the lower tribunal violates the law of the case if it does something else on remand.
This is critical because local governments play vile and nasty games on remand. Just look at the Quadrangle case in Orange County.
The case involved new wetlands regulations that did not allow mitigation. A commercial property had an area of wetlands in the middle, and the no mitigation and buffer rules prevented an otherwise viable development plan from going forward. This resulted in the loss of a viable contract for the property.
The appraisal filed with the required notice indicated a loss in value of the property of $1M, from 1.7M to $700,000 due to the inability to construct the development plan.
Here's where it gets interesting. The County came back with a ripeness decision that included a site plan prepared by the County that would have allowed the owners to develop, but with a bunch of limits, including a reduction in parking from 170 to 100 spaces.
The appraiser found that the County's plan did not cure the problems created by
the Ordinance, and that the diminution of value remained the same, because
the plan required that the Property be bisected, it did not provide for
sufficient parking, and it made no provision for a traffic signal. All of
these factors made the Property less attractive to a developer.
Now it appears that the County did not contest this opinion, because the matter was tried to partial summary judgment on the issue of inordinate burden, and the trial court found for the Plaintiffs.
On appeal, the County attacked the constitutionality of the Act on numerous grounds, mostly specious and sometimes frightening.
First, they claimed that it violated the County's substantive due process rights by forcing them to contract away their police powers, first in requiring (functionally) a "ripeness" action or an offer of settlement under threat of suit, and then by "requiring" the entity to "buy back" rights.
First, a "contracting away" claim is NOT based on due process; it's based on organic limits to the power of the government and the notion of the separation of powers. Moreover, while it might be possible to have a Bert Harris settlement that is void for this reason (believe me, I know, I just drafted a settlement around this issue) due to the doctrines laid out in Sarasota County v Chung and Morgan Co. v. Orange County, the fact that a government entity can settle (under threat of litigation) does not create a contracting problem.
The 5th clearly stated that local governments don't have "due process" rights against the Legislature, but more on the arrogant and frightening nature of the claim later.
Furthermore, as the 5th recognized, the fact that the Legislature created a new cause of action that both recognized the right of the government to exercise the police power but then creates a legislative notion of an action that "goes too far" and requires compensation for that regulation, does not "force" the government to "contract" with private parties in exercising their police powers.
Likewise, the fact that if a landowner is granted compensation for lost rights, the Act recognizes that these rights are permanently transferred to the government entity (as in a property interest/covenant/easement/sale of development rights) doesn't create a contracting problem - it simply again recognizes that the Legislature has created a cause of action and that someone using that cause forfeits other rights. So the 5th also properly rejected the notion that the Act creates a "contracting away" problem through its provision for the transfer of the rights to the government if damages were paid.
NOTE - the big right involved here would be the right to use the property for the "burdened" use should the regulatory regime change. While Bert Harris claims aren't available for "temporary" burdens, this means a regulation or effect that's temporally limited on its face. The imposition of a zoning category, or a wetlands rule, can be presumed permanent because the entity isn't obliged to change it.
The County also tried to argue that the Act improperly delegates legislative authority to the courts, based first on "vagueness" and then on the really bizarre notion that it somehow illegally and improperly enlarged judicial interpretations of takings law.
The 5th rejected the vagueness claim based on the Act's provision of a number of definitions. And while I think this claim reaches pretty far, I do have to admit that the Act is less than clear, and requires a lot of interpretation to determine whether an impacted "right" to use property is an "existing use" as that's defined in the Act.
It also rejected the "legislative imposition on the judiciary" for the clear and obvious reason that the Act explicitly states that it is creating a new cause of action, and that the cause of action is supposed to be more liberal than constitutional takings doctrine.
Note what the County is really trying to do with these combined constitutional claims: establish a doctrine that the Legislature can't create a statutorily imposed financial constraint on a local government's use of police powers that otherwise pass due process and takings tests based on some new kind of claim of constitutional stature for their "right" to exercise police powers. Their underlying but unstated position seems to be that if local governments have home rule police powers, the legislature can take away local power to legislate in areas, or can tell the local government procedurally what must be done in order to exercise those police powers, but can't make them liable for the substantive results of the use of those powers. It's nothing less than an attempt to establish an entirely new, judicially created doctrine that local governments have "constitutional" rights against legislative limits on their powers.
The fact that the county would argue this kind of claim reflects the frightening arrogance that local governments have internalized -- they believe that they have the constitutional right to screw around with anyone they want, limited only by the (emasculated and now meaningless) constitutional constraints of due process and inverse condemnation, and that the Legislature is (or should be) powerless to constrain their authority.
Let's be clear: even with home rule provided by the constitution, local governments are NOT co-equal branches of government. They are political subdivisions (counties) and municipal corporations, whose authority and right to exist are subject to legislative control.
After all of that, the 5th did throw the judgment back to the trial court for findings, based on language in the Act that provides that the court "shall" "determine whether a vested right or an existing use of the real property existed, and if so, whether . . . ." the property was inordinately burdened. The 5th interprets this as requiring an explicit finding, presumably in writing.
PRACTICE NOTE: if you're a Plaintiff in one of these cases, be sure to note this in your memorandum of law, and be sure to provide a draft order that guides the court in getting this right.
Sunday, July 09, 2006
Key issue was how seaward the new building was compared to the "line of construction" and the agency's application of a provision for the rebuilding of structures in their existing footprints or landward of them. Essential DEP granted the permit for the new structures based on the "rebuild" language and the court rejected it because the new structure is completely different than the existing structures on the properties.
What we don't know is whether the property is buildable at all if the new construction must conform to the newer line of construction for the adjoining property. If zoning allows a nine story, fifteen unit condo, but the state statute and rules effectively prohibit anything other than the rebuilding of the duplex and quadruplex - one would start wondering whether any of the rules or statutes have been amended since 1995 such that Bert Harris liability might attach.
OTOH - the entire property was overwashed during Ivan. We don't know from the opinion what happened to the neighboring properties, and whether the state construction standards were sufficient to protect the structures from heavy damage.
Sunday, June 11, 2006
But the real issue is that people's licenses are being suspended based only on documentary evidence without the right to confront. The idea that these arrest reports are self-documenting and can be introduced without the sworn testimony of the officer (absent one of the various exceptions to hearsay, etc.) flies in the face of any kind of democratic justice.
Think about it: an administrative agency suspends your license based on a document, then gives you a "hearing" in front of one of its employees - who has no training in the law -- and then rests its case on the document, with no meaningful opportunity to challenge the contents of the document. In other words, in any meaningful way, the arresting officer IS the sheriff, judge, jury and executioner (since the officer siezes the license), because there is no meaningful way to challenge the officer's action.
Good bye justice and freedom. Hello Gulag.
Thursday, June 08, 2006
In this case, Fulmore et al v. Charlotte County, here's the link, the Court upheld the trail court's affirmance that the County's determination of blight was valid under the Community Redevelopment Act. It also held (consistent with past decisions) that the elimination of blight (as defined by the statute) had a valid public purpose.
One sore spot - the plaintiffs had challenged the statute as impermissibly vague because several of the criteria are vague. But the challenge and the decision are predicated on the wrong legal arguments regarding vagueness.
The court held that some of the criteria are objective and then stated that the governing law is that if some valid criteria are available, the entire statute can't be struck for vagueness - i.e., no facial challenge:
Â?[A] facial challenge for vagueness will be upheld only if the enactment is impermissibly vague in all of its applications.Â? Brown v. State, 629 So. 2d 841, 843 (Fla. 1994) (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495-96 (1982)). The LandownersÂ? acknowledgement that several of the blight factors are objective and quantifiable necessarily means that section 163.340(8) is not vague in all of its applications. Thus, their facial constitutional challenge fails.
The problem with this is that the court is citing criminal/1st amendment case law instead of regulatory caselaw. A regulation is impermissibly vague if it vests unbridled discretion in the administrative body implementing it. (OK, I'll go get all the cases later and cite them, but, really, that's the law.) There are actually tseparateate but related probleproblemsems: first, that such a delegation puts legislative discretion into the hands of the agency, and, second, that it creates unreviewable decisions when implements.
This is a big deal when you get to regulatory applications of law. No agency should be able to rely on a vague standard to deny a permit simply because there are objective standards in the ordinance, statute or rule. That's true whether the standard is a comprehensive plan element or a criteria for a special exception.
But this is irrelevant to a CRA/blight determination, for one, simple reason: The Community Redevelopment Act vests LEGISLATIVE power, authority and discretion into the local government to make the blight determination. It's NOT a grant of administrative authority. This gets confused today because local governments have broad home rule powers, but back when the Act was adopted, it granted legislative authority and discretion. And the "blight" finding need not be supported by competent substantial evidence (an ADMINISTRATIVE standard), but only by some measure of evidence such that the determination is not arbitrary and capricious. (again I don't have the cite readily available, but I'm pretty sure that there was a Jacksonville case from the 50's or early 60's dead on this point).
So it seems that the entire case was litigated on a badly mistaken view of the structure of the CRA, leading to a mistaken notion of which "vagueness" test should apply, and also of the very nature of what kind of evidentiary inquiry was appropriate.
So, the case is probably irrelevant to future applications regarding eminent domain, but could leave a bad precedent on the vagueness issue.
Tuesday, June 06, 2006
Here's what's interesting: the argument that won below was that the provision in the charter that held that the boundary could be adjusted only by an ordinance adopted by the commission "over rode" the charter's initiative provision -- which allows adoption of ordinances by the electorate. This "extra effect" was held by the trial court to violate the single subject.
Here's what's important: the Court held that Chapter 163's provisions for the adoption of land development regulations by the "local governing board" and definition of "local governing board" as the county commission means that the use of initiative to amend or adopt land development regulations is inconsistent with state law, and therefore prohibited!!!!!
So - a TON of local governments (especially coastal cities) have adopted restrictive charter amendments that required referenda for plan amendments or rezonings that increase density or intensity. Under the 5th's rationale, these are now illegal and unenforceable.
A blow for better planning and land use regulation and a swat at knee-jerk psuedo-democracy.
Sunday, May 21, 2006
There was a dispute over a grant of a variance. Decision was subject to an (unspecified as to procedure) adminstrative appeal, which failed. The decision was then taken to circuit court in declaratory action. Action was dismissed w/out prejudice to file a petition for writ of certiorari, which apparently wasn't pursued (more on this later). That order (the language of which we are not provided), was not appealed.
Two years later, the plaintiffs try to revive and amend the suit with a second amended complaint and the trial court grants the motion. The writ of prohibition proceeds and is then granted on the grounds that the trial court lacked jurisdiction to consider the motion to amend.
OK, this may be a correct result, but it points out a slew of problems for neighbors challenging development orders - and also similar problems for landowners challenging denials.
First, let's look at the original dismissal. We don't know if it properly characterized the action below as quasi-judicial, and therefore subject only to cert review. We don't know if the action was filed w/in 30 days, or if the dismissal appeared to be a death knell to any challenge. Moreover, we don't know if it was a proper, appealable "final order." There is a "magic words" component to an order granting a motion to dismiss - if it only grants the motion, but doesn't actually dismiss the underlying case, it's not a final order and it's not appealable. This then gets into an entire issue of when/how you'd appeal it, whether you'd need to appeal it, etc.
Then there's the fact that the court dismissed the case without leave to amend. Given the 2d DCA decision in the recent Concerned Citizens case, a petition for cert is conducted under the civil rules. Given another recent decision, these are original actions, not appeals. That means that, if the Plaintiffs had properly invoked the original jurisdiction of the court within 30 days of the action, there is a very good arguement that they should have been given leave to amend the already instituted action to be a proper petition for certiorari and to file an appendix, etc.
And if the action was not dismissed by a final, appealable order (no analysis in this opinion), and if it improperly treated the issue of "reforming" the pleading to be a petition for writ of cert, then the circuit court probably did have jurisdiction and the 2d's action is incorrect. Unfortunately, there's not enough information in the opinion to tell.
We really, really need to get better opinions out of our appellate review process on land use decisions. A good reason for creating a new, independent administrative tribunal to hear all administrative appeals from local DO decisions.
Before a beach renourishment gets approved, the Florida statutes require that an "erosion control line" be established. This line demarks the point between the upland and the mean high water line (at the time). Under the statute, once established and recorded, it destroys the upland owner's right to accreted lands (including the right to use them for density).
In this opinion, in Save our Beaches v. DEP et al, The 1st DCA held that this destruction of riparian rights is a taking, and that because the statute makes no provision for compensation, it is an unconstitutional taking.
It gets a bit complicated after that, at least for non-admin lawyers. The issue in the case was the issuance of a permit to use sovereignty or submerged lands for the beach renourishment project, which requires that if riparian rights are to be harmed, the state must use eminent domain. That hadn't been done, and the Administrative Law Judge issued the permit, because of the effects of the statute (which was presumed constitutional). Having found the statute unconstitutional, the Court overturned the issuance of the permit. It did not invalidate per se the statue. But it did invalidate the recordation of any deeds or survey showing the line, if those instruments showed a seaward boundary different than the property owners' deeds.
WHAT DOES IT MEAN?
I think this means that any riparian owner on the beach or gulf whose property has been subjected to the recordation of an erosion control line can sue to have that line erased from any record, and clear any title issues to property seaward of the line.
HOWEVER, accretion historically applies to natural processes. What we DON'T know is what happens to the rights of the owners of what was waterfront property where there has been a beach renourishment project that has artificially extended the mean high water line seaward of the historical mean high water line.
Lots of fun, folks!
Sunday, May 07, 2006
This one's long, but should be read. It has poetential application to code enforcement and other zoning enforcement proceedings that could result in burdens (like liens) on property that amount to a deprivation. It might also apply to downzonings - particularly if they would result in a property becoming non-conforming (the loss of the existing right to an existing use rather than simply a potential future right of use).
It appears that a settlement agreement to deal with the case has blown up. One of the elements is that the landowner filed a notice of a Bert Harris claim during the pendancy of the other litigation. The "claim" was subject to the settlement - before the actual Bert Harris lawsuit was filed.
While gets to the issue. The Act provide for the presuit notice of the "claim" (including the requirement to file appraisals), a 180 day settlement period, then the ability to file a suit. The Act also requires court approval of the settlement "under this section" if it would contravene a statute (the most likely candidate in most circumstances is 163.3194 - the consistency requirement- if a settlment arguable includes a variance from or interpretation of a comprehensive plan provision).
So, is a settlement "under this section" a settlement only of a filed lawsuit, or of a noticed claim?
The 2d District took the position that once the notice of claim was filed, the operative provision for approval of the settlement agreement took effect. That is, once there is notice of a Bert Harris claim, the parties are bound by sections 70.001(4)(d) 1 and 2 regarding the settlement. In this case, that meant sending the issue back to the trial court, because if the Bert Harris claim was settled, then the Plaintiff might be entitled to the relief sought (judicial approval and enforcement of the settlement).
On rehearing, the court substituted a new opinion, here's the link, that found that the City of Aventura's determination that the use was a vested non-conforming use was reasonable, and therefore due deference. It therefore 'unquashed' the circuit court decision, upholding it instead.
On one hand, this seems a reasonable and fair outcome. On the other, both neighbors and developers live and die by the same sword when it comes to local discretion. I firmly believe that local interpretation should be striclty constructed and reviewed by courts, using the legal rules of statutory construction, for the simple reason that local agencies don't always follow those principles in construing local codes.
Seems like a simple enough interpretation question - but now, on to the litigation over the extinction of property rights in submerged, privately owned lands.