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.
Saturday, November 18, 2006
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What is not made clear in your summary is that the administrative hearing occurred before the project was scheduled for final hearing before the City Commission itself. The City's Code is confusing in that it does not make sense for the challenger to have to take 2 appeals on the same project as now required by the 3rd DCA's ruling. The 3rd DCA should have treated the admin order as a recommended order as is the procedure for Chapter 120 proceedings between state agencies and admin law judges.
ReplyDeleteLee R. Rohe, Equire
It's becoming very clear that local governments are adopting mulit-step and multi-level processes that create huge levels of confusion as to what decision is final and when.
ReplyDeleteYour comment points out the related problem that if the applicant (or anyone) had tried to challenge the Historic Board's decision in court, the result would have been (a) huge delays for the developer, and (b) very likely a (contrary to this result) determination that the decision wasn't ripe becaue the city hadn't voted on it.
Damned if you do, damned if you don't - the city wins either way by making the process complicated.