Thursday, August 23, 2007

The Fla Supremes Dodge the Real Question and Approve a Bond Issue

In Citizens Advocating Responsible Environmental Solutions v. City of Marco Island, the Supreme Court validated a bond issue for wastewater improvements backed by special assessments on existing and future development in currently unserved areas of the City. The real challenge was to the improvements funded by the assessments.

Here's the problem: CARES claimed that the City was playing a major funding shell game and mixing up the costs of rehabilitating its aging 3.5 MGD existing plant with the costs of expanding the plant to 5 MGD.

The circuit court and Supremes found that there was enough evidence before the City Commission to support its legislative finding that the assessments reasonably benefit the properties to be served and were reasonably attributable and assigned to those properties.

And of course there was testimony that (a) the plant would not have had to be expanded (or new lines run) absent service to the new areas; (b) the bond proceeds were pledged to "expansion costs" for lines and treatment capacity; and (c) the existing users would get no special benefits from the expansion. The Supremes found that to be enough to meet the 2 part test for a valid special assessment in a bond validation proceeding where the bonds are funded by the assessments.

The problem, of course, is that we don't know (from this kind of appellate opinion) how much the local government was hiding, and what CARES was really asking for was meaningful cost accounting to distinguish between capacity improvements and rehabilitation of the plant. If the City had been charging pure impact or hookup fees instead of special assessments, that kind of inquiry would have been required (see the Sarasota County case from a couple months back, or the Volusia County school impact fee case). But by playing a switcheroo game, labeling the charges "special assessments" and pledging them to bonds, the City gets away with minimal scrutiny of its cost accounting.

This is wrong. Maybe the City is playing fair, but based on what I've seen of public finance lately, I don't believe it. All over the state, local governments are refusing to hand existing residents the bill for the service upgrades they want (wider roads, better drainage, better equipped parks) and pretending that the "need" for additional capital investment is entirely attributable to new development.

The Supreme Court, whether intentionally or not, made this problem worse with this decision. The Court -- and the abusive local governments - are simply daring the legislature to adopt meaningful legislation to provide minimal, uniform standards of accounting for capital improvements, and a standard approach for impact fees and other exactions.

My God, I've Been So Unfair to Coral Gables! (Not)

I'm sure that some folks think that I was a bit overboard in my comments on Coral Gables. Well, it does turn out that after over a year's debate, the brave city commission decided in July to let a small portion of the city test out the possibility for 90 days (yes - opening up a 90 day window for permit application) that, with the strict supervision of the City Architect and Board of Architects, metal roofs might not cause the complete collapse of property values.

In the Spirit of Fairness, I'm including link to the whole 6 page metal roof ordinance - with enough Whereas clauses and referrals back and forth to committees with significant review and public hearings on almost a dozen occasions to make you think that it was the work of the Comintern at its most bureaucratic.

By the way - a trellis (yeah, like for flowers) is an accessory use in Coral Gables, permitted only with the approval of the city architect. The same with fountains - yes, want to put one of those little lion-head fountains on your back porch - get a permit and hope that the city architect doesn't think it's too down-market if you bought it at Target.

You need a permit to paint your house, and must go through the Review Board if you don't use a pre-approved color , or if (horror of horrors) you want to use more than one color on the outside of your house. Here's the link to the "approved colors" page and here's a link to the brochure on "So You Want to Paint Your House" - really - explaining why a permit is necessary to ensure that your painting project is "safe, legal and in accordance with building and zoning laws and ordinances."

And - I just love this -- why have declarations of restrictions on your subdivision (and worry about maintaining them) when the City will adopt specific standards for your subdivision right into the Zoning Code, including in several cases, specific directions for where houses can be placed on specific lots. Not to mention, in one case, a requirement in the zoning code that a property owner obtain permission from all waterfront property owners in the subdivision before building a boathouse. Think I'm making this up? Here's the link.

Wednesday, August 22, 2007

The 3d DCA Strikes a "No Trucks" Ordinance in Coral Gables - and the World Didn't End!!!

In Kuvin v. City of Coral Gables, a panel of the 3d DCA (over vigorous dissent by Judge Rothenburg) held that the City's "no truck" parking regulation went too far by prohibiting personal use trucks from parking in other than a fully enclosed garage.

In a true shocker, the majority opinion was written by Senior Judge Schwartz, whose normal view of zoning and land use issues is that any challenge is brought by a degenerate and corrupt landowner or developer. In one of the best passages I've seen in years, says:

But there is a larger issue at stake here. Absent any legitimate basis for
the ordinances, what remains is that the City Parents disapprove of a perhaps unorthodox vehicle and the possibly diverse taste and lifestyle which may be reflected by its ownership.
This is just what Judge Hurley was getting at in Proctor by characterizing an anti-truck parking ordinance as unconstitutionally contrary to protected rights of association, privacy and “personhood.” Proctor, 396 So. 2d at 773 (Hurley, J., concurring); see also Moore v. City of E. Cleveland, 431 U.S. 494 (1977)(invalidating municipal zoning limitation on
occupancy of dwelling to defined “family” as unconstitutionally restricting family choice to “nuclear” family).

For a governmental decision to be based on such considerations is more than wrong; it is frightening. Perhaps Coral Gables can require that all its houses be made of ticky-tacky and that they all look just the same, but it cannot mandate that its people are, or do. Our nation and way of life are based on a treasured diversity, but Coral Gables punishes it. Such an action may not be upheld.
(internal citations omitted, but the "ticky-tacky" comment references the Fine decision).

The concurrence focused on the distinction between commercial and non-commercial trucks.

The dissent by Judge Rothenberg took the position that pickup trucks are ugly, local governments can regulate aesthetics, the guy could park the truck in a garage (which his house didn't have), and so the ordinance is ok. Gosh, put that way, they can tell you what kind of toilet paper to use, too.

For those of you who might be sympathetic to Judge Rothenberg's position, let me show you this provision of the zoning code:

Section 4-412. Trucks, trailers, commercial vehicles, and recreational
vehicles--Parking upon streets and public places.
Except as provided for in this Division, no trucks, trailers, commercial vehicles, or recreational vehicles, shall be parked upon the streets or other public places of the City between the hours of 7:00 PM on one day and 7:00 AM of the next day. This prohibition is in addition to the total prohibition covering residential areas as provided in Section 4-411.

That's right kids: drive a pickup truck (including an Explorer Sport, Avalanche, Suburu Brat, and most SUVs), AND YOU CAN'T EVEN PARK YOUR VEHICLE IN A PUBLIC RESTAURANT'S PARKING LOT AFTER 7 PM AT NIGHT. YEP - EVEN IF YOU HAVE A GARAGE FOR YOUR TRUCK, OR LIVE OUTSIDE CORAL GABLES, YOU CAN'T PARK IN THE CITY AFTER DARK. Jeez, maybe we need a judicial decision naming rednecks and construction workers as suspect classes.

A Not So Fine Day in Coral Gables, or The City that Makes Your House Less Safe

In Fine v. City of Coral Gables, Judge Rothenburg (dissenter in the Kuvin case) writes an opinon for the 3d DCA that denies second tier cert where the circuit court had refused to even issue an order to show cause for the Fine's petition for cert review of the city BZA's denial of a variance to permit a metal roof. The 3d DCA found that (despite the fact that cert review is MANDATORY) the Fine's petition did not establish a basis for relief because they could not show or claim "undue hardship." Of course, it's the 3d DCA and they don't recognize that the legislature repealed Florida's version of the standard zoning enabling act in 1985, along with its mandatory "hardship" standard for variances.

Neither rule 9.100(h) nor rule 1.630 requires the reviewing court to issue a show cause order or to order a response to the petition if the petition does not demonstrate a preliminary basis for relief. See Wingate v. State, Dep’t of Highway Safety & Motor Vehicles, 442 So. 2d 1023 (Fla. 5th DCA 1983)(denying second-tier petition for writ of certiorari even though circuit court sitting in its appellate capacity declined to issue an order to show cause based on its determination that the petitioner failed to state a preliminary basis for relief).

In the instant case, the circuit court denied the Fines’ petition for writ of
certiorari without issuing an order to show cause requiring a response by the
City. This clearly was not error, as our review of the petition filed by the
Fines reflects that no response was necessary as the Fines failed to establish
an "unnecessary hardship," an essential element when seeking a variance. See
Miami-Dade County v. Brennan, 802 So. 2d 1154, 1155 (Fla. 3d DCA 2001).
"‘Unnecessary hardship’ has generally been defined as a non-self created
characteristic of the property in question which renders it virtually impossible
to use the land for the purpose or in the manner for which it is zoned." Id. at
1155 n.2 (Fletcher, J., concurring); see also Maturo v. City of Coral Gables,
619 So. 2d 455, 456 (Fla. 3d DCA 1993)(stating that "a legal hardship will be
found to exist only in those cases where the property is virtually unusable or
incapable of yielding a reasonable return when used pursuant to the applicable
zoning regulations"); Herrera v. City of Miami, 600 So. 2d 561, 562 (Fla.
3d DCA 1992)(holding that a variance may be issued only when no reasonable use
can be made of the property without the variance). As the petition did not
establish the requisite hardship, the circuit court did not fail to apply the
correct law by not requiring the respondent to respond before denying the

On a procedural level, it's terrifying to see Wingate cited in a land use case, because it involved "discretionary" cert review.

Turning from the procedural, yes, in the beautiful but stupid City of Coral Gables, you have to have a barrel tile type roof that's less safe than a metal roof. Why? Because they're authoritarian freaks who would regulate the types of toilet tissue you could put in your house if they ever thought of it. Probably would find that the use of recycled or no-brand tissue would be commercial in nature and have the potential to devalue residential neighborhoods - so you have to use something that costs at least $1.50 per roll.

The Fines should have taken their chances and filed a declaratory action seeking to hold the ordinance standard unreasonable or, perhaps, pre-empted by the provisions of the Florida Building Code. While they may have not suffered an "unnecessary hardship," they certainly have been subject to an arbitrary and unreasonable regulation (well - depending on the panel you pull).

Monday, August 13, 2007

Major Payne: The 3d DCA Holds that Zoning Policy Is Relevant to Plan Amendments

In Payne et al v. Dep't of Community Affairs et al, (Payne III), at the end of a long saga, the 3d DCA overturned the Dept's final order on some very interesting grounds.

First, the court found that DCA had improperly denied the plaintiffs, whose petition was determined timely filed in Payne I (this involved the question of whether the "rendition" occurred when passed by the Council or when the 10 day "veto" window expired - the court held that the veto date was relevant) the opportunity to amend their petition to include policy issues from the relevant zoning regulations.

Second, the court found that the Department and DOAH had improperly proceeded to hear the case without the participation of Marine One, whose standing had been determined in Payne II. That case involved whether interests in regulation under the zoning code could be substantial interests that supported standing.

One of the big issues was the effect of the "Port of Miami Plan" - the DCA, City and DOAH said it wasn't an effective part of the comp plan for internal consistency review, the 3d DCA in Payne II said it was. So proceeding without taking the holding of Payne II into account was error.

The court also found that DCA, DOAH and the City improperly treated the plan amendment as a small scale amendment when it would permit multi-family mixed uses in excess of 10 units per acre. The city claimed that the "urban infill" exception to the density cap applied -- to the entire city -- but the court did not buy that. Of course, this issue hadn't been pled (guess it will on remand!), but the court found it necessary to examine and determine.

The court then found a number of plan policies that it contended are internally inconsistent with the conversion of lands from water-dependent/water-related industrial uses to mixed use commercial and residential. Ok, so far.

But the court then went and found inconsistency between the amendments and
- the purpose of the applicable pre-existing zoning districts;
- policies in an undadopted Miami River Master Plan planning study

In its conclusion, the Court got down to its real objection:

We further note that these "small scale" amendments, when viewed together as a
whole, are changing the character of the Miami River waterfront without proper
long range planning or input from appropriate agencies, departments, and citizen
groups. Because the Miami River is such an important asset to the City, County,
and State, such piecemeal, haphazard changes are not only ill-advised, they are
contrary to the goals and objectives of those who worked together, debated, and
determined how the Miami River waterfront should be developed. If the City’s
vision for the Miami River has changed, then that change should be clearly
reflected in its Comprehensive Plan to provide industries and land owners along
the Miami River with fair notice.
In other words, the Court's position is that the City has to amend multiple policies in order to change land use designations along the Miami River waterfront.

Did the Court get the various technical issues right? I don't know - not having read all of the material. But the Court is clearly taking a position on policy in the broad sense, rather than only looking at the statute and the plan.

1st DCA: Agreements that Require CIP Amendments are Legislative

In DR Horton v. City of Jacksonville, the First District got past the procedural complications of a mayoral veto (see the Payne II case in Miami as well), to give us a clear rule: the approval by a local government of a a fair share concurrency agreement under s. 163.3180(11), and presumably a development agreement under 163.3220, is a legislative act if implementing it will require the local government to amend its comprehensive plan's CIP or transportation element's list of improvements.

The question was whether approving an ad hoc "fair share" agreement under 163.3180(11) was a legislative act subject to veto by the Mayor (which happened), or a quasi-judicial act not subject to veto. The whole thing got bogged down in the "functional analysis" of Snyder, but the courts got through it looking at the substantive effect. Because the agreement required amendments to the CIP for new road improvements, the court found that under Coastal Development and Yusem the act had to be legislative.

Note 1 - the events in this case occurred before the Legislature gave us the "proportionate share methodology" provisions of 163.3180(12). Instead, the City/County was proceeding under 163.3211, which provides that

In order to limit the liability of local governments, a local government may allow a landowner to proceed with development of a specific parcel of land
notwithstanding a failure of the development to satisfy transportation concurrency, when all the following factors are shown to exist:
(a) The local government with jurisdiction over the property has adopted a local comprehensive plan that is in compliance.
(b) The proposed development would be consistent with the future land use designation for the specific property and with pertinent portions of the adopted local plan, as determined by the local government.
(c) The local plan includes a financially feasible capital improvements element that provides for transportation facilities adequate to serve the proposed development, and the local government has not implemented that element.
(d) The local government has provided a means by which the landowner will be assessed a fair share of the cost of providing the transportation facilities to serve the proposed development.
(e) The landowner has made a binding commitment to the local government to pay the fair share of the cost of providing the transportation facilities to serve the proposed development.

This provision preceded the "proportionate share" provisions of 163.3180(12). Jacksonville's "means" was a fair share ordinance that provided for calculating a fair share of improvements.

Note 2 -- Four functional problems dotted this case. First, there were no programmed improvements to the most directly affected roadway. The developer proposed fair share improvements to other roads to address traffic impacts (which is permitted now under 163.3180(12)). The City accepted that list. The second problem was that the affected road would fail and the improvements would not change that. The third problem was that Jacksonville doesn't have impact fees or other assessments that apply to new development absent a concurrency failure, so there's no long term funding to address long term development impacts and the need to meet concurrency. Finally, the City did not propose any way to address the concurrency failure over the long term, or even to demonstrate how or when the proffered fair share payments would be applied to the other improvements.

Most of these deficiencies would be addressed under 163.3180(12) save the existence of the impact fees and other means to make the plan financially feasible.

But the functional and procedural aspects aside, the court's decision provides some clarity as to how development agreements should be treated. I have been of the opinion that they are generally legislative (since they establish vesting for regulatory purposes), but there have been many different opinions. We now know that at least one class of such agreements will always be legislative.

Sunday, August 05, 2007

Mediation under 70.51 Stays Time to File Cert

In Peninsular Properties v. City of Bradenton, the 2d DCA reversed the circuit court and held that a request for mediation under s. 70.51 (Bert Harris, part II) stays the 30 day window for filing for cert review. The circuit court had dismissed Peninsular's petition, holding that the statutory tolling provision was an unconstitutional invasion of the Florida Supreme Court's jurisdiction over procedural matters. The District Court reversed, holding (sensibly) that the statute provided a "mixed" substantive and procedural remedy, and that the purpose of the statute required that the time to file be tolled.

Right outcome, probably to the chagrin of the many, many local government attorneys who dislike (and try to undermine) the mediation provisions of the statute. I have been in the position of filing a 70.51 early, then filing a cert petition (or 163.3215), and then requesting that the cert review be tolled. I've had that request denied, which now would probably constitute an abuse of discretion.

The argument here focused on the procedural/substantive debate in treating the statute as "tolling" the time to file; Peninsular apparently did not argue the potentially easier argument: that the statute effectively tolls the rendition of the quasi-judicial order of the local government during the pendency of the meditation. Understood that way, the statute effects the actions of a state or local government agency or board and therefore doesn't even implicate the constitutional issues. Several decisions (not on this statute) interpret tolling provisions that way. This would have another salutary effect that is completely consistent with the intent of the statue: because the decision would be non-final, the local government would be in the position of "reconsidering" it in light of the special magistrate's report, rather than having to undo it or rework some other way.

I understand that Bert Harris is likely to be opened up again next year - maybe this is a fix that everyone could agree on as a way to limit the cost and expense of litigating over these matters and provide a second chance for a local government to hear a contested issue after the real issues leading to a denial are more thoroughly explored.