Saturday, November 18, 2006

Collateral Estoppel in Local Administrative Decisions

In Atlantic Shores v. 507 South Street Corporation, here's the link, the court held that an objecting neighbor could not litigate a height definition issue in the approval of a redevelopment site plan where it had raised and lost the same issue in a seperate administrative proceeding regarding a certificate of appropriateness and had not pursued its administrative remedies in the other case. The court treated this as a form of collateral estoppel.

Critical to the determination was that the hieght issue raised in the second proceeding was the same issue: one of the criteria in the city comission's consideration of whether the plan conformed to the same standards that applied in the certificate of appropriateness. Because the issue was the same, the objector could not relitigate it in the later proceeding having had (and not followed) the opportunity to fully litigate and appeal it earlier.

3d DCA - 30 Days for 163.3215 Challenge Runs from Filing with Clerk

In 5250 v. Stebbins, here's the link, the 3d DCA held that the time for filing a challenge under s. 163.3215, like a cert appeal, runs from the filing of the order with the clerk. As the court noted:
Section 163.3215(3) provides that the de novo action "must be filed no later
than 30 days following rendition of a development order." We conclude, in this
case of first impression, that the triggering event for "rendition" is when the
City Clerk entered the development order, not when the mayor signed the order.

The languge was changed in 2002 to include the "rendition" term, the court noted the legislative history, which included staff analysis to indicate that this was intended to make the time frame concurrent with the applicable rules of court. The appellate rules define rendition as occuring when the order is filed with the clerk to the tribunal.

A decision that simplifies life for all of us. Now, the only filing date that runs from the date of the action, rather than the date of the rendition, is the 30 days to file a challenge to a small scale plan amendment.

Due Process: NOT - or Yet Another Example of Breakdown In Cert Review

In Pharmcore v. City of Hallendale Beach, here's the opinion, we're forceably reminded that the lack of clear standards for due process in quasi-judicial hearings, the lack of experience of circuit courts in appellate matters, and the limited scope of 2d tier review basically mean that parties before local quasi-judicial boards can be screwed at will by the local government with no effective or meaningful judicial review.

Here, the City reneged on a settlement agreement (for reasons that may be legally valid, but are operationally just sleazy) and denied a permit. When the applicant appealed to the City Commission, the City staff brought up new reasons not stated in the denial, over the objections of the applicant with respect to notice.

The circuit court decided that the city was legally entitled to reneg and denied the petition. The circuit court noted the correct Vaillant princicples for review, but then "Without elaboration, the decision stated that the court had reviewed the record and found that petitioners were afforded due process. "

Good enough to deny review of the issue on 2d tier before the 4th - the court found that the narrow basis of 2d tier review precluded it from actually asking whether the city commission had denied the petitioners due process in the notice issue because "the circuit court applied the correct law" even if it applied it incorrectly.

Legally correct perhaps under certiorari principles, but wrong as a matter of constitutional rights, effective judicial review, and a proper constraint on abusive local governments.

Charter Control over Annexation- Provisions Must Be in Charter Itself

In Village of Wellington, et al, v Palm Beach County, here's the opinion, the 4th DCA upheld a circuit court's findings on the powers of charter counties to control and limit annexation. There's a good discussion of the interaction of the various constitutional and statutory provisions, but the bottom line is that the Charter provision itself must provide the actual annexation rules if they are to supersede the statutory provisions or municipal charters. The Charter can't just empower the County Commission to adopt later ordinances to govern annexation.

More to This Than Meets the Eye: Dec Action to Challenge Plat Approval

In McCarthy et al v. Hillsborough County, etc al, here's the link, the Second DCA issued this unfortunately short opinion that masks a serious issue that needed serious public analysis:

We deny the petition for writ of certiorari without prejudice to the
petitioners seeking declaratory relief in the circuit court.

Here's the hook: the 2d tier cert was a challenge to the circuit court's denial of a cert attack on the Hillsborough County Commission's approval of a plat in a non-quasi judicial proceeding.

The critical sub-issue is this: under City of Boyton Beach v. Park of Commerce, _____, the Florida Supreme Court held that the site plan decision under review was quasi-judicial in nature. The opinion included language stating broadly that all land use decision were quasi-judicial. But a footnote cited to the Snyder case, noting that the same analysis applied. Snyder, of course, involved a rezoning, and there is are statutory requirements that rezoning ordinance be adopted by ordinance (which involves a hearing). The statute involving plats, as well as the Hillsborough County land use regulations, do NOT have such an explicit provision. However, the platting statute (Chapter 177) does require the local governing board to approve a plat, and other provisions of Chapter 125 and 166 provide that the only way for local governments to act are through ordiances or resolutions, and both those statutes and the Sunshine Law require those actions to be taken at public meeetings - but not necessarily after "public hearings."

Also complicating matters is the whole bizaare history of whether and when plat approvals are ministerial; under the statute, they are if the plat meets the objective, ennumerated standards, but most local subdivision ordinance add additional requirements that may include some discretionary criteria.

Here (based on information I have that's not in the opinion), the Hillsborough County Commission approved the plat at a public hearing, but did not allow affected neighbors to introduce evidence against it. Neighbors challenged by cert under Park of Commerce, claiming violations of due process and essential requirements of law. Circuit court denied, stating that the hearing wasn't quasi-judicial in nature, and the appeal followed.

What we don't know is whether the lower court held that the plat approval wasn't quasi-judicial under the structural analysis of Bloomfield v. Mayo, which holds that you look to see whether the delegating statute or ordinance requires notice and a due process type hearing, or under the so-called functional analysis that comes from Snyder, under which the court looks to see whether the local government was applying versus making policy, and implies and requires quasi-judicial procedures if they are.

Clearly, the County did not offer the incidents of a quasi-judicial hearing, and now the courts have held that a dec action, rather than cert, was the proper remedy. The question is how broadly this holding reaches.

Facially Valid Equal Protection Claims Must be Heard in Enforcement Proceedings

In Powell v. City of Sarasota, here's the link,,%202006/2D05-4850.pdf, the Second DCA held that a nuisance abatement board violated the law by not permitting a defence of race-based selective enforcement, and that the Circuit Court violated the essential requirements of law in not overturning on that basis.

While the court cited the statute, which requires that a defendant be permitted the opportunity to present evidence in defense, this is clearly a due process requirement as well.