Sunday, May 07, 2006

Session 9 - Back from the Abyss - the permit denial bill ends up very good


The bill (here's the link) requiring written denials of development permits passed WITHOUT the offensive language exempting quasi-judicial decisions from providing findings and conclusions. The House analysed some of the requirements in committee and seems to have realized that they were walking into an area that the judiciary had doubts about and that was highly contested between various land use constitutencies.

As adopted, the bill is a significant step towards local accountability and judicial review, though I would have preferred a bill governing judicial review of local administrative actions.

Here's the operative text (there's a seperate but identical paragraph for municipalities under 166):
125.022 Development permits.--When a county denies an application for a development permit, the county shall give written notice to the applicant. The
notice must include a citation to the applicable portions of an ordinance, rule, statute, or other legal authority for the denial of the permit. As used in this section, the term "development permit" has the same meaning as in s. 163.3164.

While the bill doesn't provide a remedy, the "shall" language indicates a mandatory act. Here's the question: will the courts invalidate denials without a written notice, or will it simply order the government to issue a written denial (forcing litigation)

Here's the more important question: given the incredibly poor record of local governments at implementing legislative directives that they don't like (maintaining illegal restrictions on mobile/manufactured housing, for example), how many local governments will pretend that they don't know about this and how many local government attorneys will take the "so sue us" attitude.

For such future litigation, the legislative history might be informative. Here's a link to the House staff analysis. That analysis makes clear that the "written notice" is not a written findings requirement and that it is unclear whether the courts will interpret it as such. It also notes that the Judicial Admininstration Commission declined to recommend to the Supreme Court that it adopt a rule requiring findings because of seperation of powers concerns, though noting that due process considerations could justify a judicial requirement of findings. The Staff Analysis also touches on the lack of remedy issue, raising the same question I raised above.

So here's the important aspect of the Staff Analysis: if local government attorneys claim that the legislature's failure to require written findings indicates that the Legislature didn't think them necessary, that's simply wrong. In point of fact, the Senate version of the bill would have explicitly exempted local governments from a written findings requirement, and that exemption has been pulled. So the more reasonable view is that the Legislature may have thought that written findings are appropriate and even necessary.

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