Tuesday, March 28, 2006

If you care about (due) process in local quasi-judicial hearings, call your state legislator to stop or amend this REALLY BAD BILL

A bill that Senator Bennett introduced to ensure that there is some kind of written reason when a development permit has been denied has been hijacked by someone and turned into a gross due process violation. It was abused in committee and now is going to the Senate floor with REALLY BAD LANGUAGE

Here's a link to the bill, SB 1112.


This violates due process - see Irvine v. Duval County and all the cases cited in Justice Pariente's dissent in G.B.V.

This one has all the local government lawyers laughing all the way to the bar. It legislatively destroys almost 100 years of procedural due process decisions and would enact legislatively the hideous mistake that the Florida Supreme Court made in Snyder.

Whether you represent developers or neighbors, the sloppy, abusive and unreviewable results of decisions without findings and conclusions prevents you from getting justice and effective judicial review.

Write, call and help stop it now.

Sunday, March 26, 2006

Class Action Status Available to Address Systemic Sunshine Law Violation

In Deininger v. Palm Beach County, here's the link, the 4th DCA overtuned a trial court denial of class action status for Palm Beach County employees whose disciplinary hearings violated the Sunshine Law.

The District Court had previously determined that the process used by the County violated the Sunshine Law (posted awhile back). Apparently, the County in its (not surprising) arrogance has continued to use the same illegal procedures. Two disciplined employees sued to determine that their employment actions violated the Sunshine Law and asked for class status on behalf of all similarly situated employees. The trial court dismissed, looking at the merits of the dismissals and holding that each employee would have its own facts.

The 4th recognized that where the claim is that the process violates the Sunshine Law, and that the actions would be void ab initio without respect to the merits, the plaintiffs stated a valid class action claim.

For practitioners - compare this with the 5th's treatment of the buildingfee case a few weeks ago - they claimed that the County's entire process for assessing building fees was invalid as applied to everyone (if not facially) because of decisions made in how the rules were implemented. The court found that the as applied claims couldn't state a class action because the individual merits/calculations were the critical issue to validity. One wonders if this is a pleading problem with that case, or a conflict between the courts.

Document in Quasi-Judicial Hearing Insufficient to Support Determination

In Dep't of Hwys v. Roberts, here's the link, the 5th granted denied cert (over an objection) and upheld a circuit court quashal of yet another kangaroo-court administrative hearing over a license.

The basic issue - probably cause for a stop. The only evidence in the record was the arresting officer's affadavit:

To meet its burden of showing that the stop was legal, Petitioner [the department] chose to rely solely on the trooper’s charging affidavit, which, in material part,
stated: “Observe [sic] the above name [sic] defendant violate F.S.S 316.187(1) by traveling at 71 mph in a 45 mph speed limit area. When I pulled up behind the defendant and attempted to pull him over he traveled for approximately another tenth of a mile before pulling over.”

It basically found that the circuit court properly found that these recitals didn't establish enough evidence of how and why the stop was made to justify it under 4th amendment principles. Also, critically for those of us who do administrative hearings, it found that in evaluating the legal sufficiency of this evidence, the trial court did not reweigh it.

Yeah, team.

BUT WHAT'S SCARY HERE IS THAT IT WAS ABOUT THE SUFFICIENCY OF THE EVIDENCE. What about the confrontation/cross examination problem? The department put on an affadavit and didn't produce the officer, and this would be OK? What about the rule that hearsay alone (and this is clearly hearsay) isn't sufficient to ground a decision in a quasi-judicial case.

I don't know if the driver was represented at the hearing, or whether these issues were raised in the 1st tier cert petition. But they're fundamental. The fact that the department would even think of proceeding against the driver on the basis of the officer's affidavit, without the officer present, is an indication of just how contemptuously they view the process and the leniety they expect from their (department paid and controlled) non-lawyer hearing officers.

This entire system is a sham and a disgrace. At least we have one opinion that demonstrates that insufficient evidence in a quasi-judicial hearing is that.

First Amendment, Discovery, and Land Use Disputes

In Matthews v City of Maitland, here's the link, the 5th held that the trial court erred in ordering a group of citizens who were contesting a land use decision to identify the donors (and in particular, attorneys/developers/accountants for same) to their trial fund. Citing First Amendment and related concerns, the Court granted cert and quashed the discovery order, finding that the effect (and probably intent) was a chilling effect on donors, and that the information was not relevant or likely to lead to relevant evidence.

Using Concurrency for Extortion

Ok, so here's an example from my home town of how local leaders are managing the capital improvements program to extort money from developers.

The background: U.S. 301 through the City of Sarasota is, well, backlogged and constrained at best as it goes through downtown. It's failing concurrency and being managed under policies that deal with roads that need to be improved but without budgets. Just north of downtown, there's areas where there's sufficient right of way to 6-lane it, but in another area they will have to get more right of way (expensive) to complete a whole segment. So - the improvements had, but lost, funding and now after some kicking and screaming FDOT has re-funded the initial section.

More background -- Wal-Mart has applied to buy a city owned site that lies at the southern part of the area that already has right of way, but insufficient lanes. SO -- open to the discussions at the county commission level on how to communicate to FDOT what the local priorities on using these funds are. Here's what the Sarasota Herald Tribune reports:

of U.S. 301 to start early
: "After being briefed on the situation Friday by
Caan, city and county commissioners initially favored widening the southern
section of the road.

But that would boost the road's capacity on the stretch of U.S. 301 where Wal-Mart is planning a Supercenter. If the road is not improved, Wal-Mart would be forced to pay for future improvements because it will add traffic there.

If the road is improved, Wal-Mart could avoid paying.

County Commissioner Paul Mercier said he didn't want to let Wal-Mart off the hook and proposed improving the northern section of road.

'They're starting the problem. They should be solving the problem,' he

Other city and county commissioners agreed and told Caan they'd
prefer the road work start at University Parkway. "

OK, let's look at this. The WalMart will pay extensive road impact fees to offset its costs - so (despite the knowing misrepresentation in the article) - Wal Mart WILL pay for its impacts. But that's not good enough. The County Commission WANTS the road to fail concurrency so that they can extract extra payments from WalMart for the road improvements. So they're directing FDOT to start work on other sections of the road, simply so that they can put WalMart on the hook.

Let's also say that this isn't the first time we've seen this. Locally, the entire development and land use law community knows that the County is managing its capital improvements program in order to create concurrency failures simply to extort developers into paying for improvements that mostly will benefit existing development. They're taking out funding for bringing existing roads up to current drainage, right of way and pavement width standards and pretending that all of the improvements needed to these roads are "capacity improvements" required by new development.

But this is the first time I've seen a local commission so brazenly admit that this is what they're doing.

This is exactly the kind of abusive, cynical, despotic thinking that local officials get into when they're confronted between the easy thing (abuse the rules to hit up a developer for funding) and the principled thing (raise taxes to fund improvements and apply the rules fairly).

And this is going on statewide as road improvement cost increases outpace the increases in gas tax revenues and the Legislature refuses to create adequate statewide funding for state roads, leaving locals in the lurch. AND we have what we can call a dominant political philosophy at the state and local level that sells anti-tax to the public, and in doing so desperately turns to any potential source of funds, regardless of the abuse of principle involved.

Local governments get away with it because they have huge home rule powers, little statutory guidance/restrictions, and lax (at best) judicial oversight. The developers have a lot on the line and few effective remedies, so they negotiate but play along. And the entire system degrades into something that's ultimately as cynical and corrupt as what we decry in 3d world countries - the fact that the money goes into the government's pocket rather than the commissioners doesn't change the fact that it's essentially lawless, free form abuse of power.

It's why we need statewide legislation with teeth on impact fees, concurrency management (that clarifies proportionate share pay and go rights), and better judicial review.

Wednesday, March 01, 2006

More thoughts on filing cert and Concerned Citizens

A couple of months ago, I reported on Concerned Citizens of Bayshore et al v. Lee County & US Homes, et al, here's the opinion, where the 2d DCA held that R Civ P 1.630 governs the filing of cert petitions to attack local quasi-judicial decisions, rather than the Appellate Rules.

Well, I've had a number of discussions with various folks since then, and I'm pretty well convinced that we're stuck with a well meaning but wrong decision that's going to have some serious negative consequences if not legislatively or otherwise overturned.

Note that that parties involved have worked the issue out on remand and an answer is going to be filed presently. Given the way the opinion came out, neither side had any particular reason to ask for rehearing or clarification, or to suggest to the court that it could get to the right result through a different analysis.

Here's the operative language:

This extraordinary proceeding is governed by Florida Rule of Civil
Procedure 1.630. See also Fla. R. App. P. 9.100(f). The only provision in rule
1.630 which addresses the issue of parties to an action is in subsection
(b)(3), which states, "[t]he caption shall show the action filed in the name
of the plaintiff in all cases." There is no such language regarding the
naming of a defendant. Thus, the fact that the petition did not name US Home as
a defendant in the action did not subject the petition to dismissal.
Weirdly enough, the court recognized the fact that the appellate rules got to the same result in the following footnote:

We note that although rule 1.630 is specifically designed to address matters
unique to an appellate proceeding at the trial court level, its provisions
are not inconsistent with the appellate rules which, even if applicable,
would have afforded US Home no relief. Florida Rule of Appellate Procedure
9.020(g)(4) defines a "respondent" as "[e]very other party in a proceeding
brought by a petitioner." By participating in the proceeding before the BOCC,
US Home automatically became a respondent in the action seeking review of
that decision in the circuit court. See Millar Elevator Serv. Co. v. McGowan,
804 So. 2d 1271 (Fla. 2d DCA 2002) (holding that the substance of the caption
in a notice of appeal is not dispositive of the parties on appeal; all parties aligned in the trial court with an appealing party automatically become appellees if they are not named in the notice of appeal); Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, P.A. v. Mullin, 602 So. 2d 956 (Fla. 3d DCA 1992) (holding that a party who appears in a proceeding before a subordinate tribunal is a party for purposes of review of that order). Thus, while US Home was a party because it appeared and
participated in the proceeding before the BOCC, the fact that it was not named as a respondent in the petition did not subject the petition to dismissal for failure to join an indispensable party.

In any case, here's how it works now:

1. QJ decision is rendered, 30 day clock runs.
Note that the rule doesn't name rendition of the order, and we don't know if the appellate rules' definition applies. So is it 30 days from the action, or the filing of the signed resolution/ordinance/order with the clerk? We don't know.

2. Petition for cert is filed within 30 days. The Petition need only include the facts relied on, a request for relief, and argument, "if desired." A "copy of as much of the record as is necessary to support the plaintiff’s complaint shall be attached"
Note -- 1st, the record here is not an appendix, as defined by the appellate rules. that means, in turn, that you may not be able to supplement it or deal with it as under the appellate rules. 2d, what happens if the record isn't ready or available? decisions interpreting the appellate rules make it clear that the court should allow the petitioner to amend the petition to include citations to portions of the record that are unavailable, or to amend or supplement the appendix if necessary. But we are in uncharted territory under r 1.630.

Note that the circuit court did a "see also r app p 1.190(f)" -- but gave no guidance on how to read these together - and they're so inconsistent as to be unreconcilable.

3. The court examines the petition (someday), and if it demonstrates a prima facie case (?? what does this mean in cert -- just that the decision is quasi-judicial and standing is apparent?) the court issues a summons. The summons is then served by mail or service under R C P 1.080(b) - the rule for serving motions, etc.

But what does this mean? Is the court going to send the summons to the petitioner, who then sends it along with the petition and appendix to the respondent? If the petitioner gets the summons, how long does the petitioner have to serve it? Is the court to send the summons to the respondent directly? If so, who serves the actual petition on the respondent?

In the case of the other writs, which are not limited to record based review and will trigger a hearing, these issues are a bit less problematic.

4. The respondent then must answer in accordance with rule 1.140. Presumably, that means within 20 days of service. but what does teh answer contain? does it have to have numbered paragraphs under r 1.110(f)? does it have to address every paragraph or claim? Can the respondent implead others at this point? Can the defendant file a 1.140 (d) motion to dismiss before answering? does doing so toll the time to file the answer.

5. THEN, who knows? That's all rule 1.630 provides. Presumably you're then just setting a hearing. the Petitioner wouldn't get a Reply.

Could there be motion practice?

In the context of cert review, this simply makes no sense. Not only are the appellate rules better suited to handling the process, they also, legally govern over this mess.

FYI, there's a rule of Judicial Administration that provides that in the case of a conflict between the appellate rules and the rules of civil procedure, the appellate rules govern.

Then we get the appellate rules' explicit delineation of circuit court authority over these cases. You get R App P. 9.030(b) and (c) which describe the cert jurisdiction of the circuit courts to include review of local adminisstrative decisions, and r. 9.100(c), which clearly identifies a 30 day time limit to cert petitions filed to review quasi-judicial decisions of local government boards and commissions. rule 9.100(f) specifically governs the content of the petitions, response, reply, etc., including page limits, formatting, etc. Many of these provisions conflict with the operation of r civ p 1.630.

So it's a mess. It happened because a judge in Lee County bought a stupid argument from a landowner/applicant that a) the landowner was an indispensible party and b) the 30 day limit for filing couldn't be adapted to allow amendment and service of the petition on the landowner after that time.

Let's hope that we get some relief. In the meantime, I'm going to file my cert petitions with an appendix (which satisfies both rules), meet the length and formatting requirements of 9.100(f), demand the right to file a reply, and see what happens.

I'd love to hear from other folks on what they're strategies are going to be.

Bert Harris Case from the 4th - Further thoughts

I posted a link a couple of weeks ago to the opinion in Russo v. City of Dania Code Enforcement Board - here's the opinion, again - and wanted to share some further thoughts.

The case started when, after the zoning ordinance had been amended in such a way to prohibit Russo's use of the property in question (though we never find out what the use was). A citation was issued for the violation on August 30, 2000. This citation was later the subject of a code enforcement hearing, which confirmed the violation. That decision was appealed and confirmed by the circuit court - all prior to Russo's filing the Bert Harris Claim. It should be noted that all adminstrative remedies must be pursued before one can file.

In determining when the statute began to run, the court found that the "application of the regulation" for the purpose of the ordinance and the statute of limitation was the date of the issuance of the citation.

What it correct here, that the court did not find that the regulation was applied on the date that the rezoning was adopted. But let's be clear that a citation is issued by an admininstrative officer BEFORE any due process hearing by the city's code enforcement board. By finding that this was the city's "application of the regulation" to the property, the court elevated the role of the code enforcement officer to a policymaker for the city. If we were talking about a takings case or another civil rights type of claim, the city would claim that the code enforcement officer wasn't authorized to establish policy; the code enforcment board's supervisory and enforcement role in determining that a violation did or did not occur before a fine can actually be levied makes it the final administrative arbiter of whether and how the regulation is actually applied. Given that you must file your "notice of claim" and appraisals within 1 year of the regulation being applied, it seems wrong to run it from an act that might still be under appeal at the 1 year time.

Therefore, it seems to me that the "regulation is applied" to property for the purpose of running the 1 year time when any administrative appeal is exhausted, and the 4th got his wrong. I also think that the 4 year statute should be calculated from the date that the ripeness letter is issued - the last required event that allows the claim to be filed in court.

Anyway, the 4th has ruled, this is the rule, however unfortunately construed, and at least the court didn't take the city up on its interpretation - which would make it functionally impossible to bring these claims if the local government dragged appeal or related issues out.