Sunday, December 16, 2007

First DCA - Circuit Court can't Apply Equitable Estoppel in Cert Review

In Clay County v. Kendall Land Development, Inc., the First District quashed a circuit court decision that overturned a local concurrency-based denial on estoppel grounds.

This is one of those cases where the facts may disguise the real problem. Clay County has a fairly restrictive concurrency provision, and a concurrency certificate issued for a plat application has to be "vested" by gaining preliminary plat approval within 6 months and final plat approval within 2 years. The developer got a concurrency certificate, but didn't get the preliminary plat done within 6 months (which was December 2004), basically claiming that it could keep its certificate by meeting only the latter condition. One of its employees queried the County in January 2005 (after or on the preliminary plat deadline) and a general "OK' on the concurrency issue. As the platting process moved forward, the developer was told that concurrency would be a problem. The difference: fair share payments of over $600,000 instead of just below $192,000.

The developer administratively appealed the determination that it did not have concurrency and would have to pay the higher amount and lost. The circuit court, however, found that the county had misapplied the law of estoppel and should have been estopped by the January 2005 to the limited extent that the County was required to allow the developer to proceed based upon the fair share that would have been due then, if the developer had been told to reapply in January rather than in September 2006 when the whole issue came to light.

Now, there are bad facts here for estoppel law, but the circuit court was trying to do fundamental justice on the basis that if the developer lost the opportunity to apply for a new concurrency certificate when it would have been much cheaper because the County appeared to go along with its interpretation of the timing requirement.

The Fifth District has none of it. Repeatedly indicating that it was dealing with "an experienced developer," the District court destroys the lower court's jurisdiction to deal with equitable issues that are mishandled at the administrative level:

As we have noted, one “clearly established principle of law” is that, on first-tier certiorari review, a circuit court is limited to determining whether the administrative findings and judgment are supported by competent substantial evidence. Whether the record also contains competent substantial evidence that would support some other result is irrelevant. E.g., Dusseau v. Metro. Dade County Bd. of County Comm’rs, 794 So. 2d 1270, 1275 (Fla. 2001) (quoting from Fla. Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1093 (Fla. 2000)); G.B.V. Int’l, 787 So. 2d at 845; Educ. Dev. Ctr., Inc. v. City of West Palm Beach Zoning Bd. of Appeals, 541 So. 2d 106, 108 (Fla. 1989). Here, rather than merely determining whether the hearing
officer’s findings that Kendale did not reasonably rely on the January 2005
misstatement by the Chief Planner or any other act or omission of the County
and his decision that Kendale had failed to prove entitlement to the defense
of equitable estoppel were supported by competent substantial evidence, the
trial court conducted an independent review of the record, concluding that
competent substantial evidence supported a conclusion that the County was
equitably estopped to deny Kendale a CRC. This constituted “a violation of a
clearly established principle of law resulting in a miscarriage of justice” and, therefore, a departure from the essential requirements of law. G.B.V. Int’l, 787 So. 2d at 845; Fla. Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1093 (Fla. 2000).

We have also noted that another “clearly established principle of law” is that, when
considering a petition for writ of certiorari, a court has only two options--it may either deny the petition or grant it, and quash the order at which the petition is directed. G.B.V. Int’l, 787 So. 2d at 843-44 (citing cases). The court may not enter any judgment on the merits of the underlying controversy, or direct the lower
tribunal to enter any particular order. Id. Here, the trial court entered judgment on the merits, fashioning what it believed to be an equitable remedy. This, too, constituted “a violation of a clearly established principle of law resulting in a miscarriage of justice” and, therefore, a departure from the essential requirements of law. G.B.V. Int’l, 787 So. 2d at 845; Fla. Power & Light Co., 761 So. 2d at 1093.
The problem is that the lower court was actually saying that the hearing officer misconstrued the scope of his authority to deal with the equitable estoppel claim made by the developer and therefore departed from the essential requirements of law in not providing appropriate relief.

That kind of determination requires the reviewing court to examine the record closely to see if it was applied properly to the law. This is a particular problem when (a) equitable principles -which are inherently fact based-- are involved, and (b) where there are confusing or overlapping legal principles. Under the First District's holding, it doesn't matter if the lower tribunal got the law wrong so long as there is competent substantial evidence to support its decision under the wrong legal interpretation.

This difficult (crazy?) result flows from the simple fact that certiorari is flatly insufficient to provide the "one means of effective judicial review" that due process guarantees.

Said it once, said it twice and again. We need a statute providing effective judicial review under the model of 120.68, and we also need a statute that provides minimum standards for the conduct of local hearings and the issuance of administrative orders.

PRACTICE TIP: Get your case out of the administrative process and into circuit court as a declaratory or injunctive action. In this case, for example, the developer could have filed a declaratory action to determine the scope of the ability of the hearing officer to consider and apply equitable estoppel principles, and arguably to estopp the county (note: equitable powers per se are beyond the jurisdication and power of admininstrative officers).

It was the inadquacy of cert review and the resulting multiplicity of suits on different grounds under the pre-1972 APA that led to its amendment and the provision of the "rich arsenal of remedies" under the modern act. It very well may be that only an explosion of suits in circuit court attacking the jurisdiction of local boards, the processes in local ordinances, asking local procedures to be determined inadequate, and suing for prohibition, quo waranto and related writs will demonstrate the clear need for legislative reform.

This is not a "pro-developer" or "pro-neighbor" issue: noone gets a fair shake under the current system.

Finally, be aware: In the last year we've seen two cases that involved concurrency and fair share issues-this case and the D.R. Horton case from Jacksonville . They are the tip of the iceberg. Local governments statewide refuse to either fund their adopted level of service or lower them to affordable levels. The state's funding for non-SIES roads is dramatically inadequate. In the next two years we will see concurrency become a political and economic crisis on the scale of the 2004 hurrican season, and the result is going to be hundreds of lawsuits.

Supremes: No, really, Memos by Government Attorneys are Public Records unless Expressly Exempted!

Lightbourne v. McCollum, ---- So.2d ----, 32 Fla. L Weekly S707 (Fla. Nov. 1, 2007).

In the process of determining that Florida’s amended rules governing lethal injection must fail once again before a condemned prisoner can complain of 8th Amendment violations, the Florida Supreme Court struck a blow for public records in a situation that demonstrates exactly why the efforts of the State and Local Government Section to eviscerate the rules, must be stopped.
At issue were two memos by an assistant general counsel that related facts regarding earlier litigation involving inmates that had already been executed. The memos also had been previously disclosed.

The issue was clear: the memos contained documentation regarding alternative means of assessing the state of consciousness of a person being executed and other facts relevant to the issue, including evaluations of techniques that had not been adopted by the state. That is, the memos demonstrated that the state knew of alternatives that it was not adopting and the arguments for their use.

The State claimed that because they were prepared for litigation, they were subject to attorney-client privilege or work-product privilege.

The Court found that the public records law was to be broadly construed and exemptions narrowly construed. The Court noted that documents prepared by a government attorney are exempt only when (a) they contain the attorney’s mental impressions, litigation strategy or legal theory AND (b) are prepared exclusively for litigation or anticipation for imminent ligation, AND (c) that any exemption exists only until the conslusion of the litigation or the execution of the sentence.

Applying these rules, the court found that (1) the contents were largely factual and did not disclose litigation strategy (2) the memos on their face did not apply or pertain to particular pending litigation and (3) that if they were prepared for the litigation indicated, the exclusion died with the inmates. The court then looked at the County’s assertion that the document should be excluded because any disclosure had been inadvertent. The Court noted that some courts had held that any disclosure waives a privilege while others had applied a “relevant circumstances” test. Without holding that Florida would, does, or will follow the “relevant circumstances” test, the Court noted that the state had not provided that it had taken reasonable precautions against release, or that the interests of justice would be served by suppressing the documents. The Court therefore held that the privilege would have been waived, if it had existed.

These are critical issues for all private sector/public interest attorneys to recognize (and local government attorneys to respect).

Certiorari - Know Your Local Rules!

Byle v. Pasco County, --- So.2d -----, 32 Fla. L. Weekly D2450 (Fla. 2d DCA Oct. 12, 2007).
Jimenez v. Eloise Rateni, --- So.2d ---, 32 Fla. L. Weekly D2674 (Fla. 2d DCA Nov. 9, 2007).

Both of these cases involve violations of local rules by the circuit court in dealing with cert petitions. In Byle, the local rules call for a three-judge panel, but a single judge dismissed his petition for cert based on lack of standing. The Second District held that “Because the Sixth Judicial Circuit has promulgated a rule requiring three-judge panels to decide petitions seeking review of admininstrative action, Byle was deprived of procedural due process when a single judge ruled on his petition.”

In Jimenez, the local rules in the 12th Circuit provide that “all county court civil appeals shall be randomly assigned to lettered divisions of the Civil Division.” The lettered divisions in the 12th Circuit consequently go through all three counties in the circuit, and the petitioner claimed that the appeals filed in any given county had to be randomly assigned to a judge in a civil division, regardless of which county the judge was assigned to. The Chief Judge disagreed, interpreting the rule to be limited by the filing county. The Second District agreed with the petitioner that the language of the local rule requires a random assignment to any judge in the circuit, and that the denial of the right to such a random assignment was material harm that was irreparable on later review.

Madness and Mayhem in Ft Lauderdale - Stranahan I

Stranahan House, Inc. et al v. City of Ft. Lauderdale, 32 Fla. L. Weekly D2702a (Fla. 4th DCA November 14, 2007).

This case is a must read for anyone involved in litigating and settling land use cases because it clarifies principles of how to settle without accidentally “contracting away the police power.”
As indicated above, developer bought a developed site and a piece of undeveloped land that was adjacent to Stranahan House – a designated historic resource. The developer filed a site plan under the then-current regulations (1999 version). The City tried to buy the undeveloped land through eminent domain, and the developer counter-claimed for damages and for a declaration that the site plan was consistent with the regulations.

The court granted summary judgment against the condemnation for failure to demonstrate a public necessity and also ultimately determined that the developer could maintain the declaratory action. Eventually there was a settlement. The Settlement was discussed at a non-public hearing and then subject to a public hearing that appears to have allowed public comment

The day after the City Commission approved the Settlement Agreement, the Court approved the Final Consent Judgement. The judgment included findings that the site plan complied with the zoning code and comprehensive plan, that the site plan was compatible with the surrounding area (including Stranahan House). In addition, the Judgement recognized, in accordance with the Settlement (a) that ordinances had changed, (b) that it was in everyone’s interest for the developer to file an amended site plan that provided for a plaza, (c) that the site plan would be reviewed under the 1999 regulations, and (d) that the City would expedite that review, and allow the project to proceed under the original site plan if the amended site plan were not approved.

The developer filed the amended site plan, which was reviewed by the DRC, the Planning and Zoning Board, and the City Commission.

Stranahan House filed a cert petition attacking the approval of the first site plan as illegal contract zoning under Chung v. Sarasota County and because the process did not include a hearing before the City, DRC and Z & P Board. It filed a cert petition attacking the second site plan (and a separate 163.3215 petition – see above) on the basis that the Board did not afford interested parties due process, the site plan was not submitted to the historic preservation board, the City failed to apply the 2005 zoning requirements and the site plan did not comply with those requirements.

The circuit court consolidated the two petitions and denied them. In denying the first petition, finding that the approval of the settlement under these terms did not abrogate the legislative standards of the zoning code, complied with the zoning code, and was made in good faith. Because the settlement required compliance with the zoning code, it did not constitute contract zoning. It also concluded that the approval of the second site plan comported with due process and the decision was supported by competent substantial evidence. Implicitly, the circuit court found that the Settlement Agreement could provide for the application of the earlier zoning regulations without being contract zoning.

The Fourth DCA upheld the circuit court.

Notably, the Fourth District found that the failure to attack the Judgment, but to instead attack the site plan approval through certiorari, was fatal because the Judgment – which essentially approved the first site plan – was not a development order. The Court noted that under applicable precedents, Stranahan House could have moved for post-judgment intervention for that purpose.

Also notably, the Fourth District held that it did not have jurisdiction to review the circuit court’s determination that Stranahan House did not receive due process before the DRC and City because their ability to present extensive testimony was limited. The Court found the circuit court had applied the right law in evaluating this claim, and that it would not second-guess the lower court’s decision.

Finally, the Fourth District found that the circuit court had applied the correct law in considering the 1999 zoning regulations rather than the 2005 regulations, because the Judgment called for them.

What we don’t know is what would have happened if Stranahan House had intervened in the fight between the developer and the City, and had appealed the Judgment. Would the Court have determined that the judgment could not alter the terms of the applicable zoning regulations? Would it have found that the approval of a site plan through that process was improper? We don’t know, though I suspect not.

madness in Fort Lauderdale – Collateral Estoppel, Consistency and other Suits - Stranahan II (but the first decided)

Stranahan House, Inc., et al v. City of Ft. Lauderdale, 32 Fla. L. Weekly D2591a (Fla. 4th DCA October 31, 2007).

Warning: you may want to read Stranahan I, which perversely was released 2 weeks later, before trying to make sense of this.

In this case, the Court allows a group representing a neighboring property to go forward with a “consistency challenge” under § 163.3215 to the approval of an amended site plan approved by the City of Ft. Lauderdale. The critical issue in this challenge involves policies regarding historic preservation. The building involved was to be built on lands adjacent to the historic Stranahan House that had been the subject of a failed attempt by the City to purchase for “park purposes” (read—stop development) with Stranahan’s supporters committing funds.
As will be seen below, the effort to buy the land not only failed, but resulted in other litigation and settlements between the developer and the City. When, pursuant to the settlement, the City approved the site plan, the citizens/Stranahan House sued on several fronts, including the consistency challenge.

The City argued, and the circuit court agreed, that the core issues of consistency had been argued previously in the earlier, settled suit. The Fourth District rejected this, in part because the pleadings in the earlier case were not part of the record. [BIG HINT – it appears the same judge heard multiple suits, and the parties argued the merits of the earlier suit to the judge without putting them into the record by notice – if you have to argue collateral estoppel or other similar issues, put the other pleadings into the record]

The circuit court also found that Stranahan House was precluded from litigating this issue against the City because the agreement it had with the City in the attempt to buy/condemn the land, authorized the City to act for it. The City argued that the settlement was an outgrowth of that action and that, just as the City was bound, the plaintiffs were bound by the City’s action. The Fourth District rejected this theory of agency under the terms of the agreement, found that the plaintiffs had standing under the statute, and let it proceed.

HOWEVER – given that the plaintiffs had unsuccessfully argued earlier that any use of the property violated the historic preservation policies of the plan (and that the site was outside the historic district protected by the policies), it seems unlikely that they will prevail when the plan goes back to the judge. Their real efforts were to kill the site plan as illegal, which was rejected in the second case.

The Second DCA and Preemption – Home Rule over Legislative Intent

Sec. of State Kurt Browning, et. al. v. Muntz, et. al., 32 Fla. L. Weekly D2573a (Fla. 2d DCA October 31, 2007).

The Second DCA determined that amendments to the Sarasota County Charter that included provisions for the auditing and counting of ballots, were preempted by the Florida Election Code. Right enough. What’s distressing is how long it took the Court to get there, and the arguments raised by the dissent.

The Florida Constitution directs the Legislature regulate elections, and this has been held mandatory. The purpose of the Florida Election Code (Chapters 97 through 106, Florida Statutes) is to “obtain and maintain uniformity in the interpretation and implementation of the election laws.”

I don’t know how much more the Legislature ought to have to say in order to preempt an area from local regulation. If the Legislature intends uniform laws, then local regulation on the same subject is clearly inconsistent with that intent. But the Second District several years ago, in Phantom of Clearwater v. Pinellas County, allowed local regulation in an area where the Legislature had dictated uniform laws, finding that such an intent was insufficient to create express preemption. In this case, the Court required pages of analysis to determine that the Election Code was such a “pervasive” regulation that the Court would apply doctrines of “implied preemption” to hold the charter amendment inconsistent with state law. Moreover, the dissent complains that under Phantom, the Court should have upheld the charter amendment.

The dissent may be right, and it indicates the dismal state of preemption law in Florida, that gives more credence to home rule than to reasonable interpretation of legislative intent to preempt it. The Legislature should not have to use “magic words” to preempt local regulation. The Legsilature is the supreme law and the courts should pay more heed to legislative intent than murky concepts of home rule. The courts should go back to the old doctrines that local governments may not proscribe what the state expressly permits and that when the Legislature provides a process for taking action, that process must be followed and respected.
Either that, or the Legislature should adopt broad language preempting wholesale areas of regulation to itself and limiting the scope of local home rule. Touche’.

NOTE - This case has been accepted for review by the Florida Supreme Court. Briefs are due on December 26? and oral argument will be held in May. Wish I'd had time to request permission to file an amicus brief.

The Madness Never Stops! More fun on the Miami River

Durham Park Neighborhood Association, Inc. et al v. City of Miami, 32 Fla. L. Weekly D2538a (Fla. 3d DCA October 24, 2007), again involves small scale FLUM amendments adopted by the City of Miami. Here, the challenge to the amendment went to the ALJ, who found that the petitioners where collaterally estopped by the ALJ’s rulings in the related cases. Given that the 3d DCA reversed the other cases, it overturned the ALJ on that issue and remanded the matter for action consistent with its other rulings.

Sunday, November 04, 2007

Construction in Good Faith is not “Discontinuance” of a Non-Conforming Use

The Second District upheld a circuit court’s decision that a code enforcement action brought by the County because a landowner resumed a non-conforming use after it had been closed for over 6 months while under re-construction pursuant to building permits. There are some other intervening facts, and the Court rejected the circuit court’s treatment of them as mixed questions of fact and law, finding that the circuit court had reweighed the evidence. More reason why we need guidance on written orders.

The District Court’s opinion also recognized that review of the code enforcement magistrate’s decision was properly taken as an appeal.

Once again, No Deference to Local Interpretation of Comprehensive Plans

In Saadeh v. City of Jacksonville, the First District held (again) that a local government’s interpretation of the comprehensive plan – or other ordinances – gets no deference when the court can interpret the plain meaning. The case involves a “second go-round” after the District had rejected an earlier interpretation that allowed a private rowing club in a residential area. The city had amended the zoning regulations, rezoned the property to a PUD and included provisions intended to permit the rowing club to be treated as a park or recreational use.
First, the court reiterated its earlier opinion that:
The test in reviewing a challenge to a zoning action on grounds that a proposed
project is inconsistent with the comprehensive land use plan is whether the
zoning authority's determination that a proposed development conforms to each
element and the objectives of the land use plan is supported by competent and
substantial evidence. The traditional and non-deferential standard of strict
judicial scrutiny applies.
Dixon v. City of Jacksonville, 774 So.2d 763, 764 (Fla. 1st DCA

The court then goes on to apply this rule to disallows Jacksonville’s legislative attempt to make exactly the rowing club a park use, holding in effect that ownership, not use, controls whether the City can permit this use in a residential district.

The Respondents urge that our prior holding in Saadeh does not control this
case, because the City of Jacksonville has since defined “parks” to include a
much broader range of facilities and uses. Indeed, they contend that the new
definition makes no distinction between public and private ownership and thus,
they suggest, is intended to incorporate both. We disagree. While, at the time
of our decision in Saadeh, the Jacksonville Ordinance Code did not include a
definition of “park,” the Code now defines that term as “an area designed to
include a combination of passive recreation ... as well as active recreation ...
attracting visitors from the community and beyond a one-mile radius.” See
Jacksonville Ordinance Code, § 656.1601. Nonetheless, this new definition is
substantially the same as the plain and ordinary meaning of the word “park” as we previously defined it, that is, “an area used for recreation and amusement.” Furthermore, the Ordinance Code also continues to separately define a “private club” as “buildings or facilities owned or operated by a corporation, association, or persons for a social, educational, or recreational purpose.” See Jacksonville Ordinance Code, § 656.1601. The Stanton Foundation falls squarely
within this definition. Thus, despite the newly amended definition of the term “park,” we continue to agree with our previous ruling, that Stanton's interpretation of the Ordinance Code and its definitions “is so broad as to render the referenced term ‘parks' meaningless
.” Saadeh, 912 So.2d at 31. We conclude that Stanton's use of the property is as a private club, rather than as a public park.
Turning to the Comprehensive Plan, the Stanton Foundation's property is designated LDR, and as such is intended as a primarily residential area, permitting housing developments and single family residences in a gross density range of up to seven dwelling units per acre. See Jacksonville Ordinance Code, § 656.305. Pursuant to, and consistent with, the Comprehensive Plan, Jacksonville's Land Use Regulations permit a number of primary uses, as well as “uses by exception” within the LDR category. Notably, the LDR category does not permit the operation of a private club, either as primary use or as a use by exception. In contrast, a private club is expressly included as a permissible use by exception within the Medium and High Density Residential (MDR, HDR) land use categories. See Jacksonville
Ordinance Code, § 656.306(A)(II)(c)(9); § 656.307(A)(II)(c)(6).
This court has previously rejected attempts to rezone property where the intended use is not permitted in the Comprehensive Plan, either specifically or by reasonable implication. (emphasis added)
The court therefore held that the neighbors were entitled to certiorari and quashal
of the circuit court’s decision and of the City’s grant of the PUD.

Critical points: First, A de novo action under s. 163.3215 (2) should have been the sole means by which a consistency challenge was brought. Why is there no discussion? Has the First District turned consistency questions that turn solely on the interpretation of the plan and zoning regulations into an “essential requirements of law” issue that is not the determination of whether the development order is consistent with the plan? Second, is non-deferential review only available to review the approval of a development order? Is it not available to review the denial of a development order if the developer alleges that the local government’s interpretation of the plan or the zoning ordinance are not justified?

Sunday, October 21, 2007

Sometimes, a Developer Does Have a Collateral Attack on a Quasi-Judicial Denial

In Palazzo Las Olas Group LLC v. City of Ft Lauderdale, the 4th District threw out the circuit court's dismissal of a lawsuit filed by a frustrated developer over the city's denial of a site plan for a project that had been the subject of an RFP issued by the city's Community Revitalization Agency and also to long negotiations with the City.

The circuit court agreed with the city that the developer's only remedy was certiorari review of the denial. The 4th District disagreed, holding that under the facts of the case the developer had collateral estoppel and various other claims that could not have been addressed in the certiorari review process.

The facts may be pretty close to unique (if almost predictable): The City, through the CRA had a parking garage near the beach at the end of Las Olas Blvd. It wanted the property redeveloped, so put out an RFP. It seems that the terms of the RFP looked for a use of the property that would require amendments, variances, or conditions on the ultimate site plan approval from the standard terms of the zoning ordinance. The developer wins the RFP, gets the land under contract and starts negotiating the details of the site plan and conditions.

In the meantime, politics being what they are, opposition arises. Ultimately the elected mayor and some of the council are elected and clearly oppose the project. The developer claims that the mayor drove the staff to take positions that delayed staff completeness and otherwise abused the process until the opposition counsel members took office so they could vote to deny the project.

Project gets denied, cert gets denied, developer files multicount complaint, the essence of which is estoppel, bad faith, etc. Developer claims to have $5M tied up into the project based on City's representations not only that it wanted the project, but that it wanted the project in a form that required the variances/exceptions that later justified the denial.

The circuit court bought the argument that cert is the only remedy and dismissed the complaint with prejudice. The 4th, while suspecting that some of the claims will be resolved on summary judgment or judgment on the pleadings, disagreed with respect to most of the claims. Here's the language that we'll need to know for later:

While we agree that Palazzo could only obtain a reversal of the Commission’s
actual decision denying it site plan approval via a petition for writ of
certiorari, we do not believe that this bars the pursuit of other civil

First, during certiorari proceedings seeking to challenge the denial of the site plan, the issues that can be addressed are extremely limited. In such a proceeding, the circuit court would be limited "to determin[ing] (1) whether the agency afforded procedural due process; (2) whether the agency observed the essential requirements of law; and (3) whether competent, substantial evidence supported the agency’s findings and judgment." See, e.g., Powell v. City of Sarasota, 953 So. 2d 5, 6 (Fla. 2d DCA 2006). Consequently, the circuit court could never reach issues concerning whether the City had contractually agreed to waive certain permitting requirements as alleged by Palazzo or whether, based upon the City’s actions, the City was equitably estopped from denying site plan approval. Cf. Citrus County v. Fla. Rock Indus., Inc., 726 So. 2d 383, 387 (Fla. 5th DCA 1999) (holding "common law issues" concerning whether County was estopped from denying permit because of its acquiescence over the years, the permit applicant’s good faith reliance on actions of County, and the permit applicant’s commitment of resources had no place in administrative permitting process or in certiorari review of decision denying permit).

Second, much of what underlies Palazzo’s civil claims, and particularly counts I and III, is an allegation that as a consequence of the City’s own actions it is now estopped from denying site plan approval. Florida’s courts have long recognized that local government entities must deal fairly with their citizens and that, in the absence of fair dealing, the doctrine of equitable estoppel may be invoked.

. . .

Consistent with these principles, there are Florida cases suggesting that a civil suit will lie against a governmental entity where it has engaged in alleged unfair dealing. In Sundstrom v. Collier County, 385 So. 2d 1158 (Fla. 2d DCA 1980), the owner of real property obtained a building permit and spent money to commence work on the project. Thereafter, the zoning board issued a stop-work order. The property owner failed to timely seek certiorari review and, instead, filed a petition for writ of mandamus. The trial court dismissed the petition with prejudice as a consequence of the owner’s failure to timely seek review of the order via the filing of a petition for writ of certiorari. The appellate court agreed that mandamus was not the appropriate remedy, but nonetheless reversed the dismissal with prejudice because the owner should have been afforded the opportunity to "state a cause of action in equity for equitable estoppel, declaratory relief, or an injunction." Id. at 1159. And, Florida Rock Industries, 726 So. 2d at 383, Town of Largo v. Imperial Homes Corp., 309 So. 2d at 571, and Town of Longboat Key v. Mezrah, 467 So. 2d 488 (Fla. 2d DCA 1985), each involved the circumstance where a property owner/applicant brought a civil action for declaratory relief and/or an injunction, asserting that the governmental entities’ prior conduct was such that it was estopped from taking the complained-of action. And, in Florida Rock Industries, the property owner simultaneously filed a petition for writ of certiorari, seeking review of the order on its application for determination of vested rights, and a civil complaint, seeking declaratory relief and alleging equitable estoppel. 726 So. 2d at 386.

Having considered the above authorities and principals and the limitations of certiorari review, we hold that while any direct challenge seeking to overturn the Commission’s decision denying site plan approval had to be sought via the filing of a petition for writ of certiorari, this did not preclude Palazzo from bringing a civil suit, wherein it sought relief on matters beyond those appropriately addressed during the certiorari proceeding. The trial cour

Wow. The Court is holding that if you have a valid legal issue that lies outside the scope of certiorari relief, you get to plead a separate cause of action. This has long been recognized in cases involving notice, and also where the relief is under a different statute than the decision was taken under. (see Omnipoint III - the 3d DCA case on remand, and various takings cases).

The interesting fight here ultimately will be the issue of estoppel versus "you can't contract away the police power." A second issue may become the kind of "inequitable conduct" that may lead to estoppel, as the Court seems to be broadening the potential scope. Historically, good faith reliance could be founded only on a lawfully issued statement or decision. Here, the 4th DCA is permitting a "course of conduct" pleading to establish a legally sufficient basis for pleading estoppel.

It will be interesting to see whether this case settles quickly, or only after the circuit court has another go-round at the issues.

Just What Can You Do After Quashal?

In Hernandez-Canton et al v. Miami City Commission et al, the 3d DCA held that the city commission and circuit court erred in interpreting an earlier decision it had issued in the same matter.

The dispute goes to whether an application was vested against changes in the zoning regulations. The vesting provision in the amending resolution sets a particular date for having a complete application submitted. In the first case, here's the link to the original Morningside opinion, the 3d District found that the application was subject to the new regulations because the approval resolution on its face established that the "completeness" date was after the vesting date. Here's the most relevant part of the opinion:
The City’s zoning resolution states, in the second "whereas" clause, that "on
February 10, 2004, . . . [the developer] submitted a complete Application for
the previously reviewed Major Use Special Permit application . . . ." (Emphasis
added). By the terms of the resolution, the City treated the application as
being complete on February 10, 2004. This was after the effective date of the
new ordinance.
Section 1305.2.1 of the zoning code provides in substance for
grandfathering of "any complete application for development filed prior to
January 1, 2004 . . . ." (Emphasis added). As stated in the zoning resolution,
the application in this case was not complete until February 10, 2004. That
being so, the January 2004 amendments are applicable to this application.

On remand, the City Attorney apparently took the position that the resolution approving the development was not actually quashed and could be fixed by entering new findings. The City Commission apparently reapproved the resolution. Here's how the 3d DCA describes it:

The City Attorney took the view that our court had left the 2004 zoning
resolution intact, and had simply remanded so that the City Commission could
make findings in support of its 2004 resolution. The objectors argued that the
earlier zoning resolution could not stand in view of this court’s determination
that the 2004 resolution was based on the wrong law, i.e., the wrong version of
Section 1305.
The City Commission accepted the proposition that its 2004 zoning resolution had not been overturned. The City Commission enacted a new zoning resolution which made the findings contemplated by the new version of Section 1305. The objectors sought certiorari review in the appellate division of the circuit court, which was denied.
The objectors then sought second-tier certiorari review in this court. The petition for certiorari is well taken.
OK, so what this does NOT tell us is whether the findings that the City Commission entered were new findings that the application was in fact complete prior to the "drop dead date." We also don't know whether new findings were challenged as being supported or supportable by competent substantial evidence, or simply that the City Commission didn't have the legal right to alter its earlier finding on remand.

The 3d goes on to make this out to be a big misunderstanding of its earlier opinion and to provide very precise instructions on the scope of its decision:
We must respectfully say that our prior opinion was misinterpreted in the
proceedings on remand. In order for the developer’s application to be approved,
it was necessary for the developer to demonstrate compliance with the new
version of Section 1305. Since the City Commission in 2004 applied the old
version of Section 1305, it follows that the 2004 zoning resolution was
defective and had to be set aside. It was necessary for the City Commission to
conduct a new hearing and make a determination whether the developer’s proposed
project does, or does not, comply with the new version of Section 1305.
We therefore grant certiorari and quash the decision of the circuit court appellate
division. We vacate the 2006 and 2004 zoning resolutions. We remand this matter
to the circuit court appellate division, with directions to remand the matter to
the City Commission for a new hearing and determination by the City Commission
whether the proposed project does, or does not, comply with Section 1305 as
amended in 2004. At the new hearing, the developer has the burden of
demonstrating compliance with the new version of Section 1305.

OK, it's obvious that if the project could meet the amended versions there would be no dispute here. BTW, it's also very unclear whether the court's instructions violate the Florida Supreme Court's determination in G.B.V. regarding what "quashal" and "remand" mean, and the limits on judicial authority in cert cases.

What's interesting is that the Court, without ever saying so, is holding that the City was not free to make new findings regarding the "completeness date" and whether the application therefore could be processed under the earlier regulations.

I find this case very troublesome all around. On one hand, it is hard to avoid the conclusion that the developer and the City were playing hard and fast with the rules, in both hearings. On the other hand, the facts we have are those in the 3d DCA opinions, and (sorry to say) the Court clearly has a bias on how it makes these cases come out.

Moreover, the Court does not help us at all understand what it thinks are the rules on remands. It is saying that, as a matter of law, on remand the City Commission can treat the application as still open, open a new evidentiary hearing, and approve the application if the developer proves that it meets the later ordinance. On the other hand, the Court is foreclosing - without discussion- the question of whether evidence could show that the project is vested.

What's going on? does the Court think that the issue of whether the application was vested is a factual "law of the case" matter that was completely disposed of in the first opinion? If so, why doesn't the Court say so? Is the Court saying that, where a local government makes a finding of fact (even in a whereas clause, rather than in some kind of formal finding), it cannot, on remand, accept evidence on that point and make a different finding ? Does the Court believe that to be the meaning of the "law of the case'? If so, is there an exception where cert was granted because the original finding wasn't supported by CSE? Those kinds of holdings would actually be useful to practitioners because these areas of cert law are still very uncertain. Some kind of legal reasoning would at least give us some reference point as to why the Court is adamant that the case can be opened but only to enter findings as to the later regulations.

The failure of the Court to establish the legal basis for its conclusion that its earlier decision was misunderstood and misapplied leads to two alternative conclusions: First, the Court thinks that the situation was sleazy and is trying to kill the development because it thinks that the City made or will make unjustifiable findings in order to vest project, all for some improper purpose. Second, the Court has no clear idea of the legal principles it is invoking or creating and is simply muddying the waters in total confusion. Well, maybe both could be true.

Getting clear legal bases for opinions is not a "pro development" or "anti-development" issue. Everyone in the process should be able to understand what the rules are and how they will be applied, at all stages from staff reviews to hearings to judicial review.

3d DCA: Plain Meaning Trumps Administrative Interpretation

In another interesting opinion from the 3d DCA (who has replaced the 5th as the district court most likely to issue an interesting statement of land use law), we have City of Coral Gables Code Enforcement Board et al v. Tien.

Facts: One landowner has a yacht that is longer than his canal-front lot in Coral Gables is wide, and ties it up there. Obvious result: the bow or stern overhangs neighboring property. City has an ordinance that requires a person to own a lot to which they tie a boat (language is provided below). Neighbor complains, and a code enforcement officer cites the boatowner.

Then boatowner appeals the citation to the Code Enforcement Board. The Code Enforcement Board, advised by the City Attorney, reads the literal language of the ordinance to require only ownership of the property to which the yacht is affixed, not to require ownership of all lands that the yacht might then front, cover, or block, and dismisses the violation.

The neighbor then files for first tier certiorari. FIRST PRACTICE NOTE: This was wrong, procedurally. Review of the actions of a Code Enforcement Board that is acting pursuant to Chapter 162 is by appeal to the circuit court, not by certiorari. The circuit court on certiorari, decides for the neighbor, and the boat owner and Code Enforcement Board file for second tier certiorari to the District Court (this was procedurally correct, because there is no statute granting discretionary review authority of circuit court decisions to the district court).

Before getting to the opinion, here's the operative language:
It shall be unlawful for any person to anchor, moor or tie up any boat or craft
of any and every nature whatsoever to any waterfront property abutting the
waterways and canals within the city, unless he is the owner of the property to
which the craft is anchored, moored or tied up or is the lessee of improved
property having a dwelling structure thereon, under a written lease from the
owner of the fee simple title to such property or is the guest in the house of
the owner of improved property having a dwelling structure thereon.

The District Court grants cert and quashes the circuit court decision, with the following language:

We recognize at the outset that the scope of our review at this stage of the
proceeding is quite limited. Where, as here, “full review of administrative
action is given in the circuit court as a matter of right,” a litigant “is not
entitled to a second full review in the district court.” City of Deerfield Beach
v. Vaillant
, 419 So. 2d 624, 626 (Fla. 1982). However, where “there has been a
violation of a clearly established principle of law resulting in a miscarriage
of justice,” then we are authorized to reach down and supply relief. Allstate
Ins. Co. v. Kaklamanos
, 843 So. 2d 885, 888 (Fla. 2003) (citing Ivey v. Allstate
Ins. Co.
, 774 So. 2d 679, 682 (Fla. 2000)). As the court noted in Kaklamanos,
“‛clearly established law’ can derive from a variety of legal sources, including
recent controlling case law, rules of court, statutes, and constitutional law.”
Kaklamanos, 843 So. 2d at 890. To that list, we today add municipal ordinances.
Applying Kaklamanos, we conclude it would be a violation of “clearly established
law” and a substantial “miscarriage of justice” if this mega-yacht was banned
from the City of Coral Gables based upon this ordinance.
We are compelled to this conclusion based upon a plain reading of the ordinance.

SECOND PRACTICE NOTE: The court has given practitioners some very strong language to use here.. First, the 3d DCA is providing a supporting corollary to its opinions last year that the courts must stand ready to ensure that the laws are properly interpreted, and that the district courts are not potted plants that have to accept improper decisions under the "miscarriage" standard or based on their limited review. Auerbach v. City of Miami, 929 So.2d 623 (Fla. 3d DCA 2006), here's the link to the 3d DCA opinion; see also Osborn v. Board of County Comm'rs (Monroe). Compare the Fifth DCA opinion and dissent in Board of County Commissioners v. City ov Cocoa, where the court turned a blind eye to a clearly illegal annexation based on the "miscarriage" label.

What happens next in the opinion is equally interesting and powerful: a declaration for judicial autonomy in interpreting codes:
We note the City of Coral Gables has filed its own petition for certiorari
aligning itself with Bared. The City suggests, based upon earlier authority of
this Court, we must defer to its “superior technical expertise and special
vantage point” in interpreting this ordinance. See City of Hialeah Gardens v.
Miami-Dade Charter Found., Inc.,
857 So. 2d 202, 206 (Fla. 3d DCA 2003). The
City reads too much into our City of Hialeah decision. We are not required to
and do not defer to an agency’s construction or application of a law or
ordinance where we are equally capable of reading the ordinance
. Fla. Hosp. v. Agency for Health Care Admin., 823 So. 2d 844, 848 (Fla. 1st DCA 2002) (“[A] court need not defer to an agency's construction or application of a statute if
special agency expertise is not required, or if the agency's interpretation
conflicts with the plain and ordinary meaning of the statute.”). A plain reading
of the ordinance in this case requires that we quash the decision below. Holly
v. Auld
, 450 So. 2d 217, 219 (Fla. 1984) (“When the language of the statute is
clear and unambiguous and conveys a clear and definite meaning, there is no
occasion for resorting to the rules of statutory interpretation and
construction; the statute must be given its plain and obvious meaning.”)
(quoting A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla. 1931)). We feel
confident the City knows how to properly craft an ordinance to protect its
citizens from unwanted intrusions by mega-yachts if it so desires.(emphasis added).

THIRD PRACTICE NOTE: Believe it or not, this is pretty hot stuff. Whenever you challenge a local decision, the local government attorney's are constantly throwing Hialeah, Palumbus, and a handful of other "deference to local agency" cases on the table for the proposition that a local agency or administrator's action can only be overturned if it involves a "clearly erroneous" interpretation of the law, regardless of how clear the law is. While this decision doesn't quite reach that issue directly, it does provide ammunition for the proposition that a reviewing court can apply its own interpretation of clear and unambiguous ordinances.

Sunday, October 07, 2007

How Do You Challenge Unpermitted Activity?

In Johnson et al v. Gulf County, the 1st District overturned a circuit court's dismissal with prejudice of a neighbor suit claiming improper activities in wetlands.

In one count, the neighbors had claimed under section 163.3215 that the activities violated various provisions of the comprehensive plan. The problem (like in Das v Osceola County) was that the county never issued a development permit for the activities because the county apparently either views the areas as "not wetlands" or views the activities as not needing permits, even if they are wetlands.

Question 1: is altering wetlands "development" ? Probably, if it is in anticipation of any construction activity - look at 380.04.

Question 2: if a local government fails to issue a "development order" to control an activity that constitutes "development," what is the remedy? Under Das v. Osceola County, the right under the statute to get temporary relief or relief to "prevent action" on a development order led the court to conclude that there was an obligation to issue some kind of public document that constituted an authorization to develop so that it could be challenged. In that case (which involved a pipeline), the County then issued a letter authorizing the activity (which the complaining neighbors then did not timely challenge b/c they thought they had the right to something more - oops, they didn't).

Here, it would seem that at the least the neighbors could write the county demanding that some authorization to proceed be granted, so that the same could be challenged.

Alternatively, the 1st DCA seemed to be leaving the door open to the Johnson's to try to re-pled nuisance. Here's an interesting question: is there a cause of action for "per se" nuisance where an activity (a) constitutes development; (b) does not have or does not require a "development order" under local land development regulations. and (c) is claimed to be inconsistent with the plan? There is a very good argument that there is a such a claim, so long as the plaintiff can establish common-law standing to bring the claim. The "exclusive" jurisdiction provision of 163.3215 applies only to claims that development orders are inconsistent with the plan, and it is clear from various provisions, including 163.3194, that developing inconsistent with the plan is unlawful.

It will be very interesting to see how this one proceeds on remand.

The National Perspective - Prof. Patricia Salkin's Land Use Blog

Professor Patricia Salkin of the Albany Law School has started a new blog on land use law that highlights decisions from all over the county. It can be found at the Law of the Land Blog and is a very good resource.

Professor Salkin's name should be familiar to land use practitioners who also are members of the American Planning Association, as she is a frequent contributor to various journals and co-edits the Planning and Zoning Law Report, as well as authoring a number of other publications on land use and zoning law.

Saturday, September 29, 2007

The Fourth Does a Great Job of Dealing with the Wrong Issue - Vagueness and Criteria

In Friends of the Great Southern Hotel et al v. City of Hollywood, the Fourth District got half the law right (and maybe the right result) but missed the real issue in upholding the validity of parts of the City of Hollywood's Historic Preservation ordinance. I think the result is important to future cases regarding whether criteria are appropriate, but ignored an entire realm of established law that states that the structure of a quasi-judicial standard must limit the discretion of the quasi-judicial board.

Background: It's not entirely obvious from the opinion, but the issue was whether the hotel, which had previously been designated as an historic building, could be partially demolished for redevelopment. The ordinance standards at issue involved the City Commission's consideration for a permit to demolish a such a structure. So the denial of a permit would affect the owner's rights as much as the denial of a site plan, etc.

Disclosure: the attorney for the citizens was a friend of mine, Ralf Brookes, and we had discussed the case in detail as he was preparing the trial and appellate briefs.

Guts: the ordinance language requires the commission to consider a set of factors in determining whether to grant the permit. Unlike many earlier permitting ordinances, it does not set forth a scenario in which a negative finding on one of the factors leads to a requirement of denial, and the absence of negative findings to a requirement to issue. It simply requires the commission to consider them.

The factors here are really good examples of criteria which are not wholly objective (e.g. numerical) but which are clear and ascertainable.
d. Evaluation criteria. The City Commission and the Board shall consider the
following criteria in evaluating applications for a Certificate of Appropriateness for Demolition of buildings, structures, improvements or sites.
(1) The building, structure, improvement, or site is designated on either a national, state, or local level as an historic preservation district or an architectural landmark or site.
(2) The building, structure, improvement, or site is of such design, craftsmanship, or material that it could be reproduced only with great difficulty and/or expense.
(3) The building, structure, improvement, or site is one of the last remaining examples of its kind in the neighborhood, the county, or the region.
(4) The building, structure, improvement, or site contributes significantly to the historic character of a historically designated district.
(5) Retention of the building, structure, improvement, or site promotes the general welfare of the city by providing an opportunity for study of local history, architecture, and design or by developing an understanding of the importance and value of a particular culture and heritage.
(6) There are definite plans for reuse of the property if the proposed demolition is carried out, and those plans will adversely affect on [sic] the historic character of the Historic District.
(7) The Unsafe Structures Board has ordered the demolition of a structure or the feasibility study determines that the retention of the building would deny the owner of all economically viable uses of the property.
(8) The information listed in the Historic Properties Database (a listing of historic and non-historic properties) has been considered as a guideline in determining whether a Certification of Appropriateness for Demolition should be issued.

Looking at the structure of the entire section, it is clear that the intent of the ordinance is that if positive findings are made for criteria 1-6, and the data in 8 have been reviewed, then the permit should be granted only if the criteria in 7 have been satisfied. Any other approach leaves the ordinance arbitrary-- would or could the commission grant a demolition permit because the building contributed significantly to the historic character of a district?

The issue raised by the plaintiffs was that the ordinance as written and implemented granted unfettered discretion to the City Commission to issue a demolition order regardless of the findings that were made because all it had to do was consider the issues. Note that there is a HUGE body of law in Florida disapproving ordinances or statutes for these reasons. A few examples: Cross Keys -- listing general criteria for areas of critical state concern and leaving the executive branch to determine when and how to apply them violated the separation of powers; the Tampa Bay Pilots case, where a statue that allowed a quasi-judicial licensing board to consider other factors granted it unfettered discretion; the entire line of Ocala/ABC cases on liquor licenses, where the rule was established that the requirement of uniform administration means that where standards in a permitting procedure are met, the license must be granted; and the Irvine v. Duval County and Narco Realty lines of cases that apply that concept to zoning matters. Two relatively recent cases from the Florida Supreme Court - -Schiavo and Lewis -- made it clear that language that provides that an administrative actor "may" take action when certain (objective) criteria are met delegates impermissible legislative discretion.

These cases do not ultimately rest simply on whether the criteria are sufficiently precise, but go also to the structure of how the quasi-judicial administrative body applies the criteria. There is another set of cases on that focus on the criteria, and the Fourth District dodges the important issue by doing a really good job of applying these cases, so good that in fact I think the following passage will become the language that gets cited in future cases, and so good that I will risk boring you all by citing in full here:

In order for ordinances which provide decisional authority to be constitutional, they must have mandatory objective criteria to be followed when making a decision. See, e.g., Miami-Dade County v. Omnipoint Holdings, Inc., 811 So. 2d 767, 769 (Fla. 3d DCA 2002), decision quashed on other grounds, 863 So. 2d 195 (Fla. 2003) (holding that provision of Miami-Dade County Code on unusual uses was legally deficient because it lacked objective criteria for the County’s zoning boards to use in their decision-making process); City of Miami v. Save Brickell Ave., Inc., 426 So. 2d 1100, 1104 (Fla. 3d DCA 1983) (“[I]f definite standards are not included in the ordinance, it must be deemed unconstitutional as an invalid delegation of legislative power to an administrative board.”); ABC Liquors, Inc. v. City of Ocala, 366 So. 2d 146, 149 (Fla. 1st DCA 1979) (“Any standards, criteria or requirements which are subject to whimsical or capricious application or unbridled discretion will not meet the test of
constitutionality.”); N. Bay Village v. Blackwell, 88 So. 2d 524, 526 (Fla. 1956) (“An ordinance whereby the city council delegates to itself the arbitrary and unfettered authority to decide where and how a particular structure shall be built or where located without at the same time setting up reasonable standards which would be applicable alike to all property owners similarly conditioned, cannot be permitted to stand as a valid municipal enactment.”).
Objective criteria are necessary so that:
1. persons are able to determine their rights and duties;
2. the decisions recognizing such rights will not be left to arbitrary administrative determination;
3. all applicants will be treated equally; and
4. meaningful judicial review is available.

Miami-Dade County, 811 So. 2d at 769 n.5.

Section 5.6.F.5.d provides eight objective criteria to follow, as evidenced by the
Commission’s fifteen-page summary report detailing their findings as to the eight criteria. The criteria need not be intricately detailed. Windward Marina, L.L.C. v. City of Destin, 743 So. 2d 635, 639 (Fla. 1st DCA 1999) (“Impossible standards are not required.”); Life Concepts, Inc. v. Harden, 562 So. 2d 726, 728 (Fla. 5th DCA 1990) (“While it is true that the ordinance did not contain specific quantitative guidelines . . . , that level of specificity is neither required nor workable.”). All that is required is that the criteria do not permit the decision makers to “act upon whim, caprice or in response to pressures which do not permit ascertainment or correction.” Nostimo, Inc. v. City of Clearwater, 594 So. 2d 779, 781 (Fla. 2d DCA 1992) (quoting Effie, Inc. v. City of Ocala, 438 So. 2d 506, 509 (Fla. 5th DCA 1983)). The specificity of the guidelines will depend on the complexity of the subject and the “degree of difficulty involved in articulating finite standards.” Askew v. Cross Key
, 372 So. 2d 913, 918 (Fla. 1978).

The Fourth then blows the real issue (IMHO) when it analyses the rest of the problem this way:
Friends specifically argue that the code fails constitutionally where it provides that “The City Commission and the Board shall consider the following criteria.” Friends highlight that the commission only has to “consider” the criteria, that there is no clear direction as to whether one or all of the criteria must be met, and that there is no indication whether or not one or more factors can simply be considered and then disregarded. The Code’s language of “shall consider” is not discretionary.
. . .
Unlike the codes in City of Miami and Effie, section 5.6.F.5.d uses mandatory language and does not allow the commissioners to consider factors outside the criteria provided. The criteria of section 5.6.F.5.d are also objective and sufficiently detailed, elements which are necessary to uphold its constitutionality.

The problem with this ordinance, and this analysis, is that the structure of the delegation itself does not oblige the city commission to treat the objective criteria in a consistent, reviewable fashion. The real issue in this case was not whether the criteria are objective, but whether simply requiring the commission to consider them provided a meaningful limit on the commission's ultimate decision regarding whether the grant the permit. The Fourth District simply ignores the whole Cross Keys, Lewis, Schiavo and City of Ocala cases' focus on the ultimate discretion of the administrative actor to act or not act.

All that said, there is another unspoken issue in the entire case (and which may have subtly affected the outcome) has to do with takings and due process for the property owner. Here, the plaintiffs were trying to throw out the part of the overall regulatory scheme that provided a property owner with the means to get a permit to demolish a previously designated building. Without such a provision, the entire ordinance may well have violated a landowners' due process rights or created a significant taking (or Bert Harris) liability.

Friday, September 28, 2007

The Florida Supremes Resolve an Important but Stupid Issue

In Neumont v. State of Florida, Monroe County, the Florida Supreme Court resolved the unbelievable question of whether a local government body can amend a zoning text amendment that affects 10 or more acres at either the first or second public hearing as opposed to sending it all the way back through publication, notice and new hearings.

The contention is frankly moronic, but gets made all the time by "antis" who demand compromises and then claim that an ordinance that gets amended to address their issues (or, maybe, developer issues) is illegal.

The court held that changes to the terms or regulations in a proposed ordinance, even if they would affect the title (like they pull a section out) don't require re-notice unless the scope of the ordinance changes fundamentally. Like an ordinance that is published as addressing development standards for one zone district suddenly being amended to add new provisions to another district.

BUT what's scary is their language analysis of the provisions for non-zoning ordinances and for ordinances that affect 10 or fewer acres.

For "regular" ordinance, the court implies language in the statute that requires that the notice include reference to where the text of the ordinance may be viewed as meaning that the ordinance text must be adopted as proposed or noticed. I had never heard that an ordinance could not be amended after being noticed and before being adopted - this seems unnecessarily restrictive.

For zoning ordinances affecting 10 or fewer acres, the notice must include the substance of the ordinance as it affects the noticed owners/neighbors. The court interprets this to mean that

This subsection requires compliance with the notice requirements of subsection
(2), described above, and requires that counties mail to each property owner
affected by the proposed ordinance a summary of the proposed ordinance
explaining how the proposed ordinance will affect them.

. . .

Unlike the regular enactment procedure described in subsection (2), however, subsection (4)(b) does not require that drafts of proposed land use ordinances be made available for public review. Also unlike subsection (4)(a), subsection (4)(b) does not require that counties provide notice of the substance of the proposed ordinance or its effect on property owners, and does not require counties to comply with the provisions of subsection (2).

The implication could be that rezoning ordinances for fewer than 10 acres (governed by 4(b)) -- which also would include most rezonings that accompany a small scale plan amendment -- can't be amended without re-noticing. The requirement that drafts be made available for review, and that the affects of a change be stated, should not create a result where the commission cannot respond to the input that is generated by the publication. Just as with the "larger" zoning changes, such a result would be unreasonable and inconsistent with the purpose of the statue -- it implies that if the commission hears issues from neighbors, it can't impose an additional condition without republishing notice and holding a new hearing. Such a result is inconsistent with the purpose of the notice provisions and will only result in them being removed, with neighbors getting less rather than more protection.

The core decision was right - let's hope that the court hasn't created too much collateral damage.

Holy Cow! Fla. Supremes Say Oops (kind of) in Strand

Wow! Three weeks after issuing Strand v. Escambia County, and after numerous motions for rehearing poured in because of the implications of the decision on existing non-validated bonds and obligations, the Supreme Court issued this revised opinion AND granted rehearing.

The revised opinion expands protections for bonds and obligations already issued (especially critical to CRAs) and also COPS (certificates of participation) already issued by school boards under the Sarasota School Board case.

Here's the language from the order on rehearing, the likes of which I have never seen:

Having issued a revised opinion, the Court defers ruling on the Appellee's Motion for Rehearing and Clarification until after the below scheduled oral argument.
The Court's order dated September 20, 2007, previously setting oral argument, is hereby vacated. Oral argument on rehearing is hereby scheduled at 9:00 a.m., Tuesday, October 9, 2007. A maximum of twenty minutes to each side is allowed for the argument, but counsel is expected to use only so much of that time as is necessary. The motion to expand time for oral argument, filed by Escambia County, Florida, is denied. Parties and amici curiae on each side shall agree on the division of time for each respective side prior to oral argument, but not more than one attorney may speak on behalf of each category of interest.

The revised opinion removes any issue with regard to bonds issued or validated prior to this opinion becoming final and they are unaffected. Additionally, the revised opinion removes any issue with regard to certificates or obligations issued in reliance upon State v. School Board of Sarasota County, 561 So. 2d 549 (Fla. 1990), and they are similarly unaffected. Therefore, the Court will not entertain any arguments related to bonds previously issued or validated or any arguments related to certificates or obligations issued in reliance upon State v. School Board of Sarasota County.

Here's the guts of the revisions to the opinion:

Also, our decision in this case does not affect bonds that were validated prior to this opinion becoming final. See Miami Beach, 392 So. 2d at 895; County Comm’rs v. King, 13 Fla. 451 (1869). As this Court has stated, “after validation, the courts will protect even the purchasers of unconstitutional bonds.” Miami Beach, 392 So. 2d at 895 (citing Giles J. Patterson, Legal Aspects of Florida Municipal Bond Financing, 6 U. Fla. L. Rev. 287, 289 (1953)). Moreover, our decision in this case does not affect bonds that were issued prior to this opinion becoming final. In other words, this opinion does not retroactively apply to bonds and obligations that have been issued based on the authority of the precedent from which this Court now recedes.

Accordingly, we reverse the trial court’s final judgment in this case and hold that Escambia County does not have authority to issue the subject bonds without a referendum. In so doing, we recede from Miami Beach.8

8. Our receding from Miami Beach does not impact the ultimate holding of State v. School Board of Sarasota County, 561 So. 2d 549 (Fla. 1990), or the validity of similar certificates of participation issued or to be issued in reliance thereon. See 561 So. 2d at 552 (explaining that like the agreements this Court authorized without a referendum in State v. Brevard County, 539 So. 2d 461 (Fla. 1989), the agreements at issue in School Board of Sarasota County do not “matur[e] more than twelve months after issuance”).

[emphasis added by RL]

The local government community and school boards all over the state have been in a panic over whether the original decision left existing bonds in limbo, and I heard last week that pretty much the entire body of TIF bonds had been de-rated by S&P due to the decision (and the fact that these generally don't get validated).

I'll say it again - WOW!

Wednesday, September 26, 2007

Second District Affirms Fourth on Annexation in Charter Counties

In City of Largo et al v. Pinellas County, the Second District held that a provision in the county charter could not authorize a county ordinance governing voluntary (or other) annexation, citing the Wellington case issued by the Fourth DCA last year. To comply with the applicable statute, any alteration to the annexation provisions must be included in, not merely authorized by, the charter.

Read the opinion to get a feel for the kind of turf wars that are springing up all over the statee over annexation issues. I think there have been more reported cases involving counties suing to stop city annexations in the last four years than in the previous twenty, not to mention all the variations on county charter amendments intended to restrict municipal growth.

Tuesday, September 25, 2007

How NOT to Attack Inadequate Notice - Why We Really Need a General Review Statute (Again!)

In Marion County v. Kirk, we have a case where the petitioner below screws it up, the trial court gets it right the wrong way, the majority opinion on review completely misses the right result and the dissent gets the right result with incomplete reasoning (albeit not helped by the absence of the petitioner/appellee).

Rule 1: in quasi-judicial matters, if the tribunal does not provide notice (e.g. mailing notice of a hearing) in a manner that comports with the governing statute/ordinance or due process, what is your remedy?

1. If you have actual notice and appear that the hearing, you get no relief UNLESS you ask for a continuance and it is unreasonably denied, and then you have to raise this via certiorari as a procedural due process violation UNLESS the statute or ordinance provides another remedy.
2. If you do not get the notice and therefore don't appear, you can file a declaratory action to declare the decision void/ultra vires if it violates a statute/ordinance.
3. If you do not get notice and don't appear, AND the action deprives you of a property right (like it's your property being assessed, or downzoned, or code enforced), you have a right to declaratory relief for violations of due process under the Florida Constitution, as well as to declare the action void. You may have a right to an action under42 U.S.C. 1983, depending on just what they did -- like if they sold your property at a tax sale, or imposed a code enforcement lien, or gassed your dog, or lost your son's body, you have a property right protected by the 14th amendment in the 11th Circuit, but if they merely downzoned you, or denied a development permit, etc., you don't.

So, let's all get together -- if you're claiming lack of notice, you're not limited to cert review of a quasi-judicial decision because the violation not only made the decision invalid (as a violation of due process or jurisdiction), but because the violation also left you unable to protect your rights at the hearing.

Here, we don't know if the petitioner/appellee showed up, but she filed a petition for mandamus (probably to get around the 30 day cert window) claiming that County didn't sent required notices. She demands as relief that the County be ordered to issue notices (again) and hear the action again (ah, but what about the original decision? does renoticing the hearing vacate it? I think not!).

She properly gets an evidentiary hearing, at which the County doesn't quite put on sufficient evidence to actually prove that they sent the notice, and the court finds for her. At which point the County goes "oh, ****" and asks for rehearing, gets it, and brings in affidavits (not witnesses) that the mailing was done. The court rejects the affidavits, enters the writ, and the appeal (without the petitioner participating) proceeds.

The majority ends up holding (a) that because this was quasi-judicial, cert was the remedy and the court was wrong to entertain mandamus; (b) that the court erred in not considering the affidavits, and (c) -- and I really, really, really can't believe this -- that the court erred in not respecting the "presumption of routine practice" under 90.406 of the evidence code, as conclusive that the mailing was done once it was delivered to the group that mails things for the County.

First, as noted above, when you complain about failure to comply with notice requirements, you aren't limited to cert unless you appear. The court's failure to get this means that they just issued an opinion that appears to negate the longstanding rule. I can only assume that the County and developer attorneys sold the court a load of bull when they realized that the petitioner wasn't appearing during the appeal, and probably are giggling about throwing this monkey wrench into the established law.

Moreover, the whole "presumption" rule seems ridiculous as against testimony that the notice wasn't received. I don't think that the court should have/could have relied on affidavits to counter sworn testimony taken under oath and subject to cross examination. If the County blew their case, they should have been asking for rehearing and the right to present the witnesses. And the court should have granted that, and if the affidavit testimony held up, probably should have dismissed the petition - or the dec action if the court had properly reformed the filing.

Which gets us to the dissent. Judge Griffin nails it that the petitioner was not limited to certiorari. She doesn't hit the nail on the head on how the matter should have been reformed -but does end up with the right analysis:

Finally, the question whether this was properly a mandamus proceeding does
not make this decision reversible. The County did have a mandatory, ministerial duty to provide notice to all property owners within 300 feet and to conduct a hearing only after proper notice was given. Since the assertedly improperly noticed hearing had already been conducted, arguably another writ, such as prohibition, would have been more apt. One thing is for sure, however, this did not have to be brought as a certiorari review of the County’s approval of the special use permit. Cf. Bhoola v. City of St. Augustine Beach, 588 So. 2d 666 (Fla. 5th DCA 1991). Consistent with the provisions of Florida Rule of Civil Procedure 1.630 and Florida Rule of Appellate Procedure 9.040(c), the correct denomination of the writ is
not essential. Courts should, and indeed, this court generally does, treat
the application for any extraordinary writ as what it ought to be.

It does appear that a more correct result would have been reached if the
trial judge had exercised his discretion to grant rehearing and had taken further evidence on the County’s procedure for mailing of notice and Ms. Kirk’s actual knowledge of the hearing, but this is a decision allocated to the trial court, not to us.

I am really dreading the day that I see this case cited for the proposition that you can't challenge the failure to provide required notice with an original action, or explaining to a new associate (or just a newer land use lawyer) why the law doesn't restrict you to cert under these facts.

One more piece of evidence for why we really really need a general law governing the review of land use decisions that provides appellate relief (not cert) and the right to issue corrective orders.

Fifth District: Volusia County Must Demonstrate Historic Use of Beach

In Trepanier et al v. County of Volusia, the Fifth District got into a veritable scrum of overlapping issues involving the County's assertion of the right to occupy platted lots. That are beachfront. It overturned a summary judgment on behalf of the County for most of the counts, but basically blew that takings issue (more below) and upheld the lower court.

A bunch of folks have beach front lots, with a seawall back into the property. Used to be lots of beach in front of the platted lots, but hurricanes resulted in what appears to be avulsion (not gradual erosion, but sudden loss of land).

The County then decided that it would help people invade the lots. It staked out areas up to the dune line (way past the high water mark), and delineated areas in which people could drive and park that were within the platted area of the lots. This appears to have been the veritable straw, as the various landowners seem to have been accepting of some give and take with the public for crossing or sitting on the beach, but didn't like the cars.

Suit ensues, with claims of trespass and taking, as well as requests for declaratory and injunctive relief.

The County not only claims that the entire beach in Volusia County (more on the definition) is open to the use and access of the public, but that cars can use it, too. Yes, Tona-Roma returns, with a vengeance (montazuma's vengence). The County demands that the court establish an easement across the landowners' lots up to the seawall or line of permanent vegetation. Not only that, but the County actually counter claims against the homeowners for some ancient cause called "perpresture" -- which the court explains in a footnote is "[a]n encroachment upon public rights and easements by appropriation to private use of that which belongs to the public." Yep, the County claimed that, by asserting that they still owned their lots and had any right to exclude the public (or at least its cars), the homeowners were stealing from the public.

Lenin would be so proud to know that Volusia County agrees that property is theft. (remember the right to exclude, core stick in that bundle?) On the County's motion for summary judgment, the circuit court also apparently pulled out a copy of "What is to Be Done?" along with its Southern Reporter. In what sounds like excrutiating detail, the circuit court turned effective title much of the lots to the County, ruling that (quoting from the 5th DCA opinion):

This court declares that the defendant, COUNTY OF VOLUSIA, on behalf of the
public, holds a superior claim to possession and use of the beach landward of
the mean low water mark of the Atlantic Ocean to the place where there is marked change in material or physiographic form, or to the line of permanent vegetation in accordance with the definition set forth in Fla. Stat. section 161.54(3) (2004).

Plaintiffs are permanently enjoined from impeding public access to the beach or from acting in any manner inconsistent with the free use of the beach by the public,
including access by motor vehicle, subject to the regulatory power of the County of Volusia.

Ok, so first the Court declares that the County actually owns the real rights to the beach for the public (yeah, Lenin!) - for what else is a "superior claim to possession and use"? The court then declares that the area of the beach is defined not by common law, but by Florida Statutes. It enjoins the landowners from acting "in any manner inconsistent with the free use of the beach by the public," which appears to me to mean that the public has a right to set up a tent in front of the Plaintiffs lots to enjoy the beach, but if the Plaintiffs do the same thing they are in contempt.
The circuit court does a handwave to Tona-Rama, but completely bastardizes the fact-specific holding that case. For those who don't read all the obscure land use cases, Tona-Rama held that (in very fact specific circumstances) parts of the beach at Daytona Beach around the pier had been subject to public use for so long that a prescriptive easement had been established, one that prevented the owner of the pier from developing on parts of the beach that had been essentially the public beach. The circuit court reached around Tona-Rama and added a dose of its own public policy to hold that the beaches throughout Volusia County (again, defined by the statute) are public as a matter of law, and open to vehicles.

It also finds prescriptive use rights based on (uncited) open and historic use of the beach.

Oh, and it doesn't stop.

The circuit court also agrees with the County that whenever the beach changes landward, the public's rights automatically migrate with it (no review whatsoever of whether changes are avulsion or erosion - too petty a detail to consider when homeowners are stealing the beach).

The Fifth District, to its credit, puts most of this to a screeching halt. It wants to see a factual record on whether this area of the beach was historically used by cars, and for what part of the beach (like, did people ever drive within the platted lots?). The Fifth also wants findings on the avulsion/erosion issue, and whether the use of the beach was permissive (which doesn't create prescription) versus adverse.

In other words, the Fifth is going to require fairly strict application of the common law principles that underlie Tona-Rama and not simply wink at judicial expropriation of the beach through some newly minted rule of law. The opinion deals with the critical Tona-Rama case this way:

Although we recognize that the issue is far from clear, we conclude, both from
our reading of the supreme court's various opinions in Tona-Rama and from reading the underlying decision of the First District Court of Appeal in City of Daytona Beach v. Tona-Rama, Inc., 271 So. 2d 765 (Fla. 1st DCA 1972), that the intent of the supreme court was to declare the right of customary use in the public only for the area of beach at issue in that case, for which it had an extensive factual record of customary public use. Indeed, the decision of the First District Court of Appeal was explicit in this regard, as it necessarily had to be, because the remedy that court embraced was prescriptive easement.

On the question of whether the right to use the beach above the high water line (if it were established) also moved, the court held that the avulsion/erosion issue had to be addressed. It went on to hold:
Certainly, if it can be shown that, by custom, use of the beach by the public as a thoroughfare has moved seaward and landward onto Appellant's property with the movement of the mean high water line, that public right is inviolate. However, it is not evident, if customary use of a beach is made impossible by the landward shift of the mean high water line, that the areas subject to the public right by custom would move landward with it to preserve public use on private property that previously was not subject to the public's customary right of use.

The Fifth also noted that the entire issue is going to require resolution by the Florida Supreme Court: "We recognize that a question as important as the meaning and scope of Tona-Rama and the migration of the public's customary right to use of the beach will ultimately have to be determined by the Supreme Court of Florida, not this court. We believe, however, that this case should not go to the high court until the evidentiary issues we refer to have been developed in the trial court. "

After all this good work, the district court blows the final act when it upholds the circuit court's dismissal of the landowners' takings claims:

Finally, we agree with the trial court's analysis of the "takings" issue. If the law
recognizes that the public has a customary right to drive and park on Appellants'
property as an adjunct of its right to other recreational uses of that property, as
recognized in Tona-Rama, then no takings claim can be made out.

The problem should be obvious: if the circuit court finds that the public does not have a customary right to drive on these lots, then the County's actions in staking out parts of the Plaintiff's lots and letting people park and drive on them is a taking! Remember Loretto? One of the remaining "per se" takings claims - significant interference with the right to exclude?

The problem with this mistake (and you can understand it in context) is that it implies that there isn't a taking or recompense for the plaintiffs even if they win and the County refuses to stop. Very sad that in order to fix this giant hole in an otherwise smart and thoughtful decision, the landowners might have to ask the supreme court to review it.

Maybe the landowners should simply start putting out calthrops or other barriers to the cars and let the county sue them and move for a temporary injunction to stop them. Would be a VERY interesting case at that point regarding who's rights are initially recognized - the fee owner seised under the common law or the invading government, claiming on behalf of the public that the landowners "seisin" constitutes a seizure.

In any case - VERY important stuff and at least some glimmer that the rule of law and cooler heads sometimes prevail. Lenin may be weeping, but Locke and Blackstone smile.