Wednesday, July 11, 2007

Ok, An APA Geek Case to Be Sure, But Important for Appeals

In Cocktails Plus v. Dep't of Prof & Bus. Svc, the 1st DCA held that it had jurisdiction over an appeal of a Final Order. The agency issued a "Final Order" on February 19, 2007. That "order" did not include rulings on the exceptions to the DOAH judge's Recommended Order. The agency then issued an Amended Final Order on March 9, 2007.

The Court issued an order to show cause why the appeal should not be dismissed:
Upon the Court's own motion, the appellant is hereby directed to show cause,
within ten days from the date of this order, why this appeal should not be
dismissed as untimely. Specifically, it appears to the Court that an earlier
final order was entered by the Division on February 19, 2007. Because it is
unclear to the Court whether the changes made by the Division in its "Amended
Final Order" were material, it is not apparent whether the instant order
restarted the time to file an appeal. See St. Moritz Hotel v. Daughtry, 249 So.
2d 27 (Fla. 1971); Maxfly Aviation Inc. v. Capital Airlines Ltd., 843 So. 2d 973
(Fla. 4th DCA 2003). The appellant shall attach to the response copies of the
February 19, 2007, original final order, as well as any motion that may have
delayed rendition of this order. If any additional pleading or order is
referenced in the response, a copy of the document shall be attached to the
response. Failure to timely comply with this order may result in the imposition
of sanctions, which may include dismissal of the appeal, without further
opportunity to be heard. See Fla. R. App. P. 9.410
When it looked at the orders, it decided that the agency's failure to address exceptions in the first order rendered it "non final" (despite its title) and that the Court therefore had jurisdiction. Here's the language, for future use:

The Final Order, which had been filed with the agency clerk on February 19,
2007, was not final and therefore did not start the time to file a notice of
appeal. Cf. St. Moritz Hotel v. Daughtry, 249 So. 2d 27 (Fla. 1971); Maxfly
Aviation Inc. v. Capital Airlines Ltd., 843 So. 2d 973 (Fla. 4th DCA 2003).
Specifically, the Final Order did not consider, or make explicit rulings on,
the exceptions to the recommended order that were filed by the appellant. See
§ 120.57(1)(k), Fla. Stat. (2006). An administrative order that does not
bring the administrative adjudicative process to a close does not dispose of
the case and is not final. See Hill v. Division of Retirement, 687 So. 2d
1376, 1377 (Fla. 1st DCA 1997).

SO, all you folks out there, we now know that an Amendment in a Final Order to address exceptions is a material change that resets the appeal date.

Moreover, based on this opinion, if a Final Order does NOT address exceptions the order is not actually final. Therefore, the proper course of action would be to file for rehearing/reconsideration, rather than a notice of appeal to get the exceptions considered. But what happens if you file the motion for rehearing/reconsideration and the agency does nothing before your time to appeal runs? Do you have to file your appeal (to what is now, legally, a non-final order) by the 30th day? I would. What happens if the more narrow window for filing a motion for rehearing closes? Have you waived your right to complain?

Any comments from APA gurus?

Monday, July 09, 2007

Sarasota County Claims Concurrency Allows It to Retire Existing Capacity Debts on Backs of New Users - Big Case Coming

In Save Our Septic Systems v. Sarasota County, the 2d DCA reversed (in part) summary judgment granted to Sarasota County in a case involving mandatory hook up fees being charged to sewer system customers. A key issue is Sarasota County plan to use a bunch of the money to pay back existing debt in the system and the relation of that to the calculation of the connection fee.

It is unclear how much the 2d DCA understood of the County's arguments, but the court thought the County argued that because of the concurrency requirement, the County must provide new infrastructure and in that case, if bonding or financing requirements demand that old debt (for old capacity for existing users, not future users) must be retired, such payments are a "cost" for the new infrastructure that can be charged to the new users.

This is radical!!! Understand -- the County is claiming that the requirement that impact fees be used to provide new capacity and not be used to cover costs for existing users is trumped by "financing requirements" and the concurrency requirement. The County attempted to use this to avoid providing the actual cost-accounting type approaches that would distinguish the actual capacity used by the new users and paid for by previous debt and force a blanket pay back.

The 2d DCA reversed summary judgment for the County, requiring the circuit court to make a record and reach conclusions on the cost-accounting issue, but clearly was a bit non-plussed about the nature of the cost accounting arguments:

Although the record does not conclusively establish how this impact fee was calculated and the intentions regarding the specific allocation of any revenues received from the fee, the parties have presented general arguments regarding the proper calculation of the fee or the proper use of revenue collected from the fee. SOSS argues that the capacity fee cannot be used to pay off any existing County debt or to pay for expansion other than in an amount that directly and strictly relates to the impact of these new users.

The County, however, points out that modern financing requires the payment of existing debt to permit further expansion. The County notes that other states have expressly recognized that impact fees can be used to pay the debts incurred in building capacity for the future. See, e.g., Airwick Indus., Inc. v. Carlstadt Sewerage Auth., 270 A.2d 18 (N.J. 1970). In addition, the County argues that concurrency now requires that an expansion of the sewer system must include a provision for excess capacity to ensure the efficient use of capital and to ensure that the County can accommodate new growth as it occurs.

Given the concurrency requirements now in place and the modern requirements for financing capital expansion as discussed above, we are inclined to reject SOSS's arguments that the revenues from an impact fee can never be used to pay existing indebtedness or that the amount of the impact fee cannot be based in part upon a recognized need for future capacity. Nevertheless, the supreme court's distinction between the proper use of impact fees to finance reasonably anticipated costs of expansion versus the prohibited use of such fees to pay for the existing system as a whole remains in place. See Contractors & Builders Ass'n, 329 So. 2d at 320-21; St. Johns County, 583 So. 2d 635, 637-39; Volusia County v. Aberdeen
at Ormond Beach, L.P., 760 So. 2d 126, 134-36 (Fla. 2000).

This distinction requires the circuit court to carefully review the calculation of the impact fee and the intended expenditures from the revenue generated by that
fee to assess whether the fee meets the dual rational nexus test. That is, the circuit court must assess whether the County has met its burden of demonstrating a reasonable connection or rational nexus between the need for additional capital facilities because of the anticipated new users of the system who will pay this fee, and a reasonable connection or rational nexus between the intended expenditures of the collected funds and benefits accruing to those new users. See Aberdeen at Ormond Beach, L.P., 760 So. 2d at 134.2 Because disputed issues of material fact remain in this record as to the calculation of the fee and the intended use of the revenues
from the fee, summary judgment on this count was improper.

To clarify. If a local government at time 1 takes on 10M debt in order to provide future infrastructure for 20 years, there is nothing wrong in having an impact fee paid by users who come on in years 1-20 used to retire that debt.

However, if the year 1 debt provides capacity and quality improvements for existing users AND provides additional capacity for new users, the existing users must repay that portion of the cost applicable to the existing user base.

What Sarasota County and a number of other jurisdictions are doing is playing a game where they claim that quality improvements (like bringing drainage, sidewalks and lane width) to existing roads to meet current standards can be 100% charged to new development in the impact fees. So far, they are getting away with it by claiming that they wouldn't bring their own infrastructure up to these standards (ever) and that it's new development that "triggers" the need to spend the extra money. Right. This is just another approach to the political game of "existing residents don't to pay for the quality of roads, environment (storm water), water and sewer that they want, so the politicians conveniently blame it on new development and hand the new development the bill."

It appears to me (but we won't know until the circuit court reviews this case on remand) that Sarasota County tried to play a similar game with these charges. We'll see what happens next.

2d DCA - Zoning trumps Historic Ordinance - This Time

In City of Tampa v. City National Bank, the 2d DCA upheld the circuit court's opinion (on 2d tier cert) that the City's zoning ordinance, rather than an applicable design guideline for an historic district, governed the height of a proposed building.

The facts are pretty simple: zoning allows high rises, property is also subject to architectural review with standards that include "scale: height and width," a 20 story building is proposed (next to an 11 story building and across side street from 2 story house) and rejected by architectural review board based on height.

The entire issue comes down to whether the architectural board could reject the building on that basis, and an interpretation that the zoning code's provision that the district regs govern height unless provided explicitly elsewhere. Both courts found that the architectural review code would allow consideration of height only in relation to the scale of the building, rather than to allow it to limit height.

I've seen some commentary that this is a major pro-property rights case, but the opinion doesn't read that way. This is a statutory interpretation case: both the circuit court and the 2d DCA rejected the City's contention that the architectural review ordinance authorized a limit on height. The courts (and the building) were able to point out other historic or overlay ordinances in the city that specifically limited height, and the 2d DCA was clear that a legislated standard that applied in an overlay or similar fashion district-wide would be valid. So the City can prevent other big buildings in the area with a fairly simple change to the ordinances.

Moreover, the 2d DCA recited all the usual language about its limited role in 2d tier cert review, and the more interesting question is not answered: what would the court have done in this case if the circuit court had upheld the city's denial on cert instead of overturning it?

Sunday, July 08, 2007

Gypsies, Tramps and Thieves - Maybe We'll Find Out if Section 95.361 is Constitutional

In Charity et al v. Sarasota County, the 2d DCA reversed summary judgment in favor of the County in a case that involved where the owners of property seperated from a canal by a street that was established by common law dedication have riparian rights to the street. The basic facts (and similar cases have been litigated way more frequently than you might believe) is that you have lots, a street, and then lands on the other side of the street (very thin strip) and then a canal. I won't both to characterize the original plats because all the players in this are home town to me, but let's just say that based on practice and history, the landowners had good reason to believe that the lands between the road and the seawall were theirs, but the land records can be characterized as ambiguous.

The court had ruled based on (the court found) the misapplication of an earlier case (Kreiger v. Town of Longboat Key) involving the extent of rights in lands where property that is subject to a plat is conveyed by metes and bounds. The court in that case found that the later sale of the property by metes and bounds excluded rights that were associated with the land under a plat; it found that the later sale intentionally excluded the rights and appurtant lands under the plat.

Here, the court found that the landowners would not have automatically lost their rights to the lands under the conveyances, and that the conveyances referenced the plats (as well as metes and bounds extensions). I think what you have in some of the cases are deeds that have lines like "Lot 9 and the S 20 feet of lot 10 less lands for easements as recorded at Book x Page y. "

The circuit court bought the argument that this kind of sale took them out of the ownership of the lands under the rights of way and the riparian rights to the other side (here, the rule is that if there are no landowner/lotowners on the far side of the street to own to the 1/2 way point, the single adjacent owner gets it all). The 2d DCA overturned it.

The County had also argued, but the circuit court did not reach and the 2d DCA expressly did not consider, that it had total ownership of the road under the "dedication statute," 95.361. That statute provides that in cases like this where its not clear who opened the road, if the county maintains it for 7 years, there is a presumption of dedication for the width of the maintained right of way, and that dedication would include the entire fee. The statute provided a limited window to challenge the operation of the statute.

So the County's argument is that it owns the road by operation of the statute and that this breaks the ownership of the strip of land between the road and the seawall.

This sets up a potential for a major confrontation over the validity of the statute. The statute was created to safeguard public rights to government maintained roads. But by granting full title, it actually takes land without compensation. Moreover, by taking title to roads subject to common law dedication (which granted right of way to the government, but maintained ownership in the adjoining lots or the grantor), this would disturb existing expectations to a huge extent.

As applied in cases where the government opened a road years ago and has maintained it, it creates a useful way to establish that a road is in fact public. In cases where the right of way already has been dedicated, it is not much more than outright theft of the fee, and serves no purpose other than to extinguish the residual rights of the adjoining landowners.

On remand, the circuit court's resolution of this issue may create a major confrontation over whether the statute (1) applies to roads that were dedictated; (2) is an unconstitutional taking under the Florida constitution; or (3) is an unconstitutional taking under the US constitution.

Sunday, July 01, 2007

LDR that Deviates or Departs from Comprehensive Plan is not Consistent

In Gateway et al v. Town of Medley, et al, the 3d District overruled a summary DOAH decision holding that an ordinance of the Town was consistent with the comprehensive plan. The court's only characterization was that "Ordinance C-306 permits expansion of a non-conforming use, which the Comprehensive Plan destined to be phased out. " The Court went on to find that

This violates the Florida Growth Management Act’s dictates that local plans be
"implemented through the adoption of land development regulations that are
consistent with the plan." Bd. of County Comm’rs of Brevard County v. Snyder,
627 So. 2d 469, 473 (Fla. 1993)(emphasis added); §163.3202, Fla. Stat. (2006).
Here, as the Ordinance unequivocally "deviates or departs" from the parameters
of the Plan, Machado v. Musgrove, 519 So. 2d 629, 634 (Fla. 3d DCA 1987), we
cannot hold that it is consistent.

The court does not bless us with the particulars of the plan policy involved, nor the actual provisions of the ordinance.

What remains to be seen is whether the courts would apply this analysis to a land development regulation that was more restrictive than the plan permitted.

Back in the Blog!

Sorry about the very long delay -- mostly overloaded work related, but also had some technology and related issues.

The blog is now (and probably temporarily) being published at the "Blogspot" site run by Google (who took over Blogger). This is so I could get some features working right that were blowing up when I was hosting it myself. I'm hoping to convert the blog to live at in the near future (which would allow the files and features to live on Google/Blogspot, but be easier to enter).

In any case, thanks to everyone who's been sending me links or cases - I'll try mightily to catch up by the 4th of July weekend.

Important if Confusing Administrative Appeal Standing Case

In Jupiter Inlet District v. Thibideaux, the 4th DCA issued an important but confusing ruling that confirmed that the District had standing to challenge a dock permit but did not have standing to challenge on appeal the DOAH Admininstrative Law Judge's determination that the dock violated a riparian line standard because it was not affected by that aspect of the dock.

Under the 4th DCA's intepretation of standing to challenge an administrative decision, a party with substantial interests that create standing to participate in the 120.57 formal hearing must demonstrate a substantial inteterst that is negatively affected for every ruling that the party wishes to challenge.

This seems to be a fairly radical extension of the LEAF and O'Connell cases (which have been discussed in earlier posts), and could create serious complications to challenges to jurisdiction or other procedural matters on appeal. Anyone who works the APA side of things should track how this case is used in the future.

DCA Creates a New Kind of Plan Policy

In Indian Trails Improvement District v. Dep't of Community Affairs, the 4th DCA upheld a final order holding that Palm Beach County's newly adopted plan policy to be "the" provider of waste and potable water in unincorporated areas was an "aspirational policy" that did not have to be supported by data and analysis.

The court provided no analysis of the implications of this "aspirational" policy. Of course, the statute makes NO provision for "aspirational policies" in a comprehensive plan. Development orders and infrastructure investments must be consistent with the entire plan. We'll see what happens the first time that the County attacks one of the other service providers' efforts to install infrastructure in the unincorporated county as inconsistent with its new, "aspirational" policy.

Why Cert Fails: You Have to Let the Agency Violate Your Rights Before Complaining

In Florida Department of Highways v. Tidey, the 4th DCA overturned the circuit court's grant of a writ of prohibition that prevented the Department from using its "hearing officers" to sit on Tidey's case. The circuit court heard the testimony of at least 4 attorneys who practice before the Department regarding pervasive, consistent, and orchestrated violations of due process before the Department's non-lawyer hearing officers.

No matter, says the District Court. Even if they are completely incompetent, prejudiced, and directed by their employer to conduct hearings in a manner that violate the rights of those before them, your only remedy is to go to the hearing before the unfair and incompetent hearing officer, wait for them to violate your rights, and try to raise your issues on a case and fact specific basis for later certiorari review. Don't forget to raise specific objections on the record, and don't forget to keep asking for continuances, even if the Department fails to produce suppoena'd records or the police officer fails to show up. In other words, every procedural trap will be laid before you and you must litigate your case perfectly in order to maintain any abilty to receive judicial review, while the Department can screw around with your case at will.

What it comes down to is that drivers in Florida face about the same due process challenges as accused terrorists held in Guantanamo Bay. Well, maybe more, 'cause our courts of appeal are on the state's side.

What's the link to land use? Well do you think the average city/county commissioner cares any more about due process than these DMV hearing officers? Do you think that the due process violations that occur on a daily basis are any less pervasive and invidious?

Standing in Plan Challenges - Just Working in Jurisdiction Isn't Enough

In Potiris and Novack v. Dep't of Community Affairs, the 5th DCA held that simply working in a jurisdiction is insufficient to demonstrate that one does business there for standing purposes in a plan amendment challenge.

Practice tip: if you need to establish standing and don't own property, at least rent a post office box and pay occupational license fees to the jurisdiction

5th DCA - It's Illegal, But Who Cares?

In Board of County Commissioners v. City ov Cocoa, over a strong dissent by Judge Evander, the 5th District let the City get away with what appears from the dissent to be a clearly illegal involuntary annexation of undeveloped lands because there was no "miscarriage of justice."

In effect, the District Court used this oft-abused 2d tier certiorari standard, which is intended to prevent simple complaining from reaching the districts as a "second appeal." as a basis for turning a blind eye to a flat out abuse. The legislature or the Supreme Court MUST fix this situation. Certiorari review is simply insufficient where there are no meaningful procedures, requirements for written opinions, and too little meaningful guidance on what consitutes "departure from the essential requirements of law."

Annexation not Compact, but What About Standing?

In City of Center Hill v McBride, et al, the 5th District upheld a circuit court's quashal of an annexation ordiance on certioriari review (I know, should be illegal but it isn't), based on agreeing with the city that the annexed lands (to be used for a limerock mine) were not sufficiently compact (described by the challengers as a "ballooon on a string").

My question is how these unincorporated residents met the requirement of the statute that requires a demonstration of material injury.

Bert Harris - Refusal to Extend Permit not Compensible

The Fifth DCA probably got the right result based on the wrong (or incomplete) interpretation of the Bert Harris Act in Holmes v. Marion County.

The Holmes' were denied a "special land use permit" to continue operating a Construction and Debris landfill on their property past the 3 years they already had been operating. Predictably, the denial was based on a bunch of complaints from neighbors.

The Holmes filed under Bert Harris, claiming that the landfill was an existing use, and that the denial inordinately burdened it. The court found that it was not "vested" and that the Holmes "investment backed expectation" was only to run the mine for the 1st three years.

The Court completely botched the analysis.

First, Bert Harris protects either "vested uses" (e.g. one that is already operating) or "existing uses" -- the latter are those uses that are reasonably foreseeable, non-speculative uses that are suitable for the property and compatible with adjacent uses. The Act therefore clearly intended that some "non-vested" uses that a property MIGHT be allowed are protected. By claiming that the Holmes' could not get compensation because their "investment backed expectations" were limited to the rights that had been vested, the Court completely got this issue backward.

Of course, the lower court might have found that the ability to use the land as a landfill was not an existing use because it did not qualify under the definition of an "existing use" and in this case that probably was the case (at least based on the reported facts - god knows what the real facts are).

So, did it come out right? I don't know, but quite possibly. Did the Court get the law right? No.