Saturday, February 25, 2006

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.

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