Saturday, February 25, 2006

No Class Action on Illegal Impact and Building Fees - OR - Local Govenments Once Again Get a Free Ride to Abuse their Authority

OR - Why We Need Statewide Legislation on Impact Fees

In this opinion rendered by the 5th DCA in Seminole County v. Tivoli, the court overturned the trial court's certification of class status in a case that attacked the County's building and water/sewer fees.

The district court essentially found that each developer who paid allegedly illegal fees would have to establish the proper fee and damages on its own, and that the complaint therefore did not and could not establish a valid class action:

Three depositions and an amended complaint purportedly showed Tivoli paid too
much for building permit fees and impact fees. Tivoli's cause of action,
however, would require much more than that. It must also show, church by
mobile home by parking garage, whether developers subject to the County's
arbitrary and unreasonable calculation of fees were overcharged and, if so,
by how much and on what basis. These individual inquiries would predominate
and overwhelm any common issue. See Hoechst Celanese Corp. v. Fry, 753 So. 2d
626, 627-28 (Fla. 5th DCA 2000).

As a practical matter, because Florida law does not provide a developer with attorney's fees for challenging illegal and arbitrary regulatory fees, this decision means that local governments are economically free to charge illegal fees up to the effective cost of litigating against them. Just as the federal courts have evicerated section 1983 as a means of protecting our federal rights by evicerating the attorney's fee provisions, this ruling guts meaningful protection for our rights against illegal impact fees.

Going to show that
a) Senator Bennett is right, and we need a state statute governing local impact and building fee methodology and review; and
b) We need attorney's fee provisions for successful challenges to illegal local regulations

Certiorari Proceedings - Original, Not Appellate

In this opinion in Steinberg v. Becker (not a land use case), the 5th District noted that certiorari proceedings in the district court to review a circuit court action is not appellate in nature, but an original action.

Important or not? In this case, it meant that appellate attorney's fees weren't available.

But what does it mean for precedent? Is a decision made under certiorari jurisdiction not binding on other cases becuase it's an original decision in and under the particular facts of the case? What does it mean for the recent dustup where the 2d DCA held that cert proceedings are taken under R. Civ P. 1.630 instead of R. App P. 9.100 (which I have come to believe was wrong, even if it was the law).

Does it give a circuit court additional powers, once jurisdiction is invoked, to determine the rights of the parties? I would say it does, despite the unfortunate ruling in G.B.V. that the court's power is limited to remanding the action to the quasi-judicial board.

And we're going to find this one out soon: does it mean that if you have the right facts, you can bring a cert action to challenge a local government quasi-judicial decision in federal court if you have concurrent federal claim? I would say it does. And a major dustup over a project in Pasco County in which the local government basically changed the rules midstream to give the County Commission a denovo review over a Planning Board decision instead of an appeal has landed in federal court, with a cert petition and a bunch of federal claims.

But that's probably not how we want local government decisions reviewed. What to do? Pass a statute providing for minimal standards in local quasi-judicial decisions and providing for the constitutionally indicated appeal of those decisions to circuit court.

Irvine burden shifting applies in all quasi-judicial development order decisions

One of the key elements of fairness (such as they are) in local quasi-judicial develompent order decisions is the basic premise that if the applicant demonstrates a prima facie case of compliance, the other side (government or opponents) must adduce competent evidence of non-compliance and adversity to the public interest. This was the holding in Irvine v. Duval County, (the supreme court version and 1st DCA on remand).

In G.B.V. , the supreme court affirmed that the burden shift applied to plats. Now the 4th (in a problematic opinion, here it is) has aplied that to a site plan approval. Other courts have applied it to conditional use permits and similar decisions. It should now be clear that it applies to all development order decisions.

It should - it's necessary to ensure that the local board doesn't simply deny permits based on a rejection of the evidence in front of it -- that is, a situation where the developer puts on evidence of compliance with the requirements of the plan and regulations, no one puts on contrary evidence, and the board simply denies the request and tries to defend on the basis that it wasn't convinced by the evidence.

On the substance in this case, the developer lost on an interpretation of the zoning code's requirements - it didn't put on evidence on an issue because it claimed that the relevant provision wasn't mandatory. The board (apparently), trial court and district court appear to disagree - though the relevant provisions of the code aren't cited in the opinion, so we're left to guess whether the court is being fair or just giving the lower court and local government a bye.

A Carelessly Written and Probably Wrong Interpretation of Accessory Uses at Turnberry - Read and Be Careful [Updated]

NOTE - this post has been updated based on information provided by a knowledgable attorney - see below.

The 3d DCA held that Turnberry Isles condo can throw a Pritiken Lifestyle center out of the commercial portion of the development because it is not a principle use. It interpreted (but did not provide) the zoning regulation adopting the zoning ordinance, which allowed (btw) two hotels, restaurants and a commercial marina, as well as a commercial area. Here's the opinion -

In holding that the center is not permitted, the court provided this VERY troubling language:

it clear that the principal use of the Turnberry development, including the
Association's property, is as a luxury, multi-family, planned residential
community served by various accessory (or ancillary) uses. Thus the luxury
residential units comprise the principal use, and any additional uses on the
property must be ancillary to (or accessory to) the principal use. That is to
say, any use on the subject property must benefit the property residents and not
be available to the general public at large.

Let's just say that 1) there's no way that a hotel meets this test - so unless there's different language in theordinance that addresses the hotels, the court's interpretation is simply silly. Let's also just say that unless the ordinance language SPECIFICALLY included provisions not cited that limit the uses as described, the court's interpretationn is overbroad in a scary, scary fashion.

Local governments all over Florida are adopting mixed-use PUD ordinances intended to provide commercial nodes in or adjacent to residential development. The trip capture and other functions of these commercial nodes will not work if they are limited to uses that "are not available to the general public at large." Under this view of PUDs (not to mention accessory uses), a hotel restaurant can't serve the general public (which violates federal law), the copy shop in an office building can't serve users outside the office, and in most cities, buildings couldn't provide paid parking for patrons who then left the premises. And presumably, if a PUD's principle use was commercial, with ancillary residential, the residential component could only be used by owners, employees or customers of the commercial uses. It's ridiculous.

I only hope that the parties request clarification and that the court provides an opinion that cites specific provisions of the particular ordinance that supports its view or modifies the opinion so as adopt a proper view of the relationship between residential and commercial uses in a PUD.
After posting the original version, which referred to the development as (and assumed the development was) a PUD, I got the following message from Stan Price - a land use attorney who was formerly with Dade County and probably knows the background:

your interpretation of the 3rd dca opinion does not accurately reflect the
facts of the case. The original zoning approval in the 1970's was prior to the
PUD provisions being drafted. The extremely limited language of the zoning
resolution and sudmitted covenants restricted the uses to ancillary and
incidental uses which are supplemental to the luxury high rise
development. By contrast, PUD and other mixed use districts recognize this
distinction and permit totally independent uses within the district.

Stan's info indicates that there are specific provisions of the ordinance, not cited by the opinion, that justify the decision. I would still hope that the court would grant a rehearing or clarification and cite the specific provisions of the ordinances and covenents that explain the decision, so as to avoid it being misinterpreted .


Sunday, February 12, 2006

Statute of Limitations in Bert Harris Claims: 4th Gets it Half Right

In Russo Associates v. City of Dania Beach Code Enforcement Board, here's the opinion, the 4th DCA correctly rejected the City's attempt to read in a ridiculous 1 year statue of limitation on the filing of a Bert Harris claim that would relate not to the "ripeness" event provided by the statute, but to 1 year after the ordinance or statute were applied.

The court unfortunately went on to seemingly hold that the statute of limitations is 4 years from the application of the offending statute, ordinance, rule or policy rather than from the ripeness determination - which is the clear and only purpose of having a ripeness determination.

So, on August 31, 2000, the City issues a citation for code violation. The landowner goes through the administrative appeal process (as required by Bert Harris), and appeals that decision to circuit court. The circuit court affirms, ending the administrative appeal process, and -- in any reasonable interpretation -- establishing the date on which the ordinance is actually applied to the property.

We don't get the date that the circuit court decision is handed down, but on October 10, 2002, the landowner files a Bert Harris notice will the Mayor. Subsequently, it files the actual Bert Harris complaint on February 6, 2004.

While the Act is confusing on this point, it requires that the "claim" be "presented" within 1 year of the application of the law or regulation to the property. The Act requires a "notice" to be presented to the government agency, which then has 180 days to issue a ripeness determination. If it issues within 180 days, the matter is ripe upon issuance, if the it fails to do so, the claim is ripe after the 180 days.

The court correctly rejected the City's truly frivolous claim that the landowner had to present the claim within 1 year of the "application of the ordinance to the property." Unfortunately the trial court bought that argument and dismissed the case with prejudice, thus wasting a huge amount of time, taxpayer and landowner dollars.

Unfortunately, the 4th viewed the presentation requirement as a "pre suit" requirement. While it correctly applied the statutory 4 year statute of limitations, it interprets that as going to the time that the claim is presented to the local government (the notice, which must be w/in 1 year of the application of the ordinance/statute), instead of to the date that the claim became ripe.

It make no sense at all to tell someone that their claim doesn't become ripe for filing until after 180 days from when you present notice of your injury, but then to state that the statute of limitations runs from the notice. Ripe means ready for adjudication. The statute clearly intends to create a certain point in the review process and a certain point in time to measure actionability. It make no sense to start the clock ticking before the claim is ripe.

SO PRACTITIONERS: if you're on the landowner side, be sure to mark the date you file the notice, rather than the date you get your ripeness determination; that's the beginning of the running of your 4 years; if you're on the government side, watch the dates, too.