Saturday, November 18, 2006

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.


  1. Anonymous12:07 AM

    People -- to avoid this kind of screw job or, at least, have a meaningful remedy (after all, even if these guys get certiorari, they still get no real remedy since they end up going back for another beating from the same sleazy people who screwed them in the first place...)-- insist on a Development Agreement with the municipality using the Florida Local Govt Development Agreement Act -- Fla Stat. 163.3220. This will freeze all the land development ordinances at the date of the Agreement, but more importantly, you will have the remedy in circuit court for an INJUNCYION to enforce the Agreement. There are very few cases on this particular statutory strategy (See Coombs v. Naples), but at least we know it is a contract claim and the plaintiff can force the city to perform according to the development agreement via injunction. There is no case on damages from the breach...yet....I am working on a similar case against the City of Temple Terrace.
    Ann Allison

  2. You're absolutely right -- BUT -- remember that (a) signing a development agreement is highly discretionary and requires the Board, and (b) that the release in the development agreement must be conditional (e.g., not valid until board acts) or it can become contrct zoning. Drafting settlements after the Chung and Orange County cases is a tricky thing - there's a recent bar journal article on this issue.