Wednesday, January 25, 2006

Rule of Law, Schmule of Law; We're City Commissioners (Not this time) - Why We Need a State Version of U.S.C. s. 1983 & 1988

The 4th DCA granted cert quashing a circuit court order denying cert to a landowner who was, well, it gets complicated, in this opinion in BMS Enterprises v. City of Ft. Lauderdale.

The Ft Lauderdale Code allows self storage units within 60 feet of a railroad right of way and makes them a conditional use in other places. Conditional uses apparently go to the City Commission for approval. The Code also provides for determinations /interpretations by the Zoning Administrator, with an Appeal to the Board of Adjustment -- as do most local zoning regulations. It then - atypically - allows for an appeal to the City Commission, who can overturn the BoA by a supermajority.

An applicant got a determination from the Zoning Admininstrator that he could build a self-storage building on a site that was adjacent (<60') from a railroad right of way. The Administrator determined that the conditional use applied in all other locations, but that the (as the District Court later found) clear language of the ordinance permitted them within 60 feet of the RoW.

An aggreived neighbor appeals to the BoA and loses. Neighbor then appeals to both circuit court AND to the city commission (note: LACK OF JURISDICTION NOT DEALT WITH IN OPINION). The City Commission has a majority vote to overturn the BoA, but not a supermajority. It then uses the majority vote to purport to deny the landowner to use the property as a permitted use or a as a conditional use.

Yeah, it threw the law out the window and basically said - a majority is enough to deny a conditional use or adopt an ordinance, so its enough to order the Zoning Administrator and the BoA not to grant this guy a building permit, whatever the ordinance actually says. Typical arrogant and abusive behavior by Commissioners who CONSTANTLY forget the difference between their legislative and administrative/quasi-judicial powers and think that they can do whatever they want, anytime any issue is in front of them.

The circuit court let this travesty play out, apparently feeling that if the Commission had discretion to deny a conditional use for a self-storage, it had the discretion to do so even though the Administrator and BoA said it was a permitted use and the Board lacked the supermajority needed to overturn that.

The 4th quashed and remanded, clearly stung by its limits under G.B.V. which allow it only to quash and not to tell the circuit court and the City that they better follow the law as written.

The City Commission here not only violated the essential requirements of law, but any notion of due process and fair play. This was clearly an arbitrary and capricious decision that has now cost this landowner tens if not hundreds of thousands of dollars in attorneys fees and delay damages. We need a state version of the Civil Rights Act that allows abused petitioners to get damages and attorneys fees from reckless and lawless local governments and brings some respect for individual and property rights back into the system.


  1. Philip MichaelCullen, III, Esq2:17 PM

    If the City's action is bad enough to amount a taking, there is either a remedy via inverse condemnation or Section 1983. If it doesn't get that bad, a 1983 type statute wouldn't help.

  2. I beleive that due process rights under the Florida Constitution are greater than under the 14th and 5th amendments (as emasculated by the 11th Cir. Ct of Appeals in order to clear the federal dockets of s.1983 suits).

    So I think a state statute that provided not only declaratory and injunctive relief, but monetary damages not limited by the $100,000k soveriegn liability waiver, would have some teeth (particularly if it had an attorney's fee provision not hobbled by the doctrinal limits that the feds have put on such awards under s. 1988).