Monday, December 29, 2008

5th Upholds Special Use - But It's Very Confusing

In Keene v. Zoning Bd. of Adjustment the 5th District upheld a determination by the circuit court that a semi-annual riding event with dozens of riders was permitted in the Rural Residential area.

Interesting issue one: no one mentions the deference to agency construction rule, or if it applies - more interesting because of issue number two.

Interesting issue two: this is framed as an appeal from a declaratory action in front of the circuit court, which could only be a 163.3215 challenge, because any other challenge would be a cert petition. However, the majority opinion does not frame the question as whether the action was consistent with the comprehensive plan, but whether the use was consistent with uses permitted as special uses under the Land Development Code. Something's wrong, and I suspect that the dissent has the right analysis - which focuses on the comprehensive plan uses.

So we have a case where it appears from the appellate decision that the causes of action, the standards of review, and the standard being reviewed against (the LDC vs the plan) are a total mishmash. Why? Broken record time: the absence of a statute that would provide a consistent form and method of judicial review of local government decisions, one that also states that the review is appellate, what the standard of appellate review is, what the appellate remedies are, and what the standards for decisions are.

Sunday, December 28, 2008

5th DCA - open meeting and discussion can cure open meeting violation

In Finch et al v. Seminole School Bd, the 5th DCA held that a long open meeting, at which issues were fully vetted, cured an earlier open meeting violation that occurred when school board members took a bus trip to view sites.

In effect, the Court found that the violation was a technical one, and that the violation did not create communications that the later public meeting did not cure. While the court did not discuss it, it seemed clear that any other ruling would create an unacceptable situation where an open meeting violation regarding a particular subject couldn't be cured and would leave the board powerless to act on that subject.

1st DCA - Gov't Flooding of Property is a Taking

In Drake v. Walton County, the 1st DCA concluded that a county decision to "redivert" water across the Plaintiff's land was a taking.

If the case were merely a "flooding" case where the government drainage project or action causes permanent (even if periodic) flooding of land, it would not bear much mention - or the dissent. But here, the facts are very convoluted, and involve lands that had been subject to flooding, then were protected by a drainage project - which did not work - and then were subjected to flooding again when the drainage project was removed or altered. This creates understandable confusion in determining how the common law right to put water on downward properties (at least to historic amounts) can conflict with the government's liability when it alters drainage patterns.

Fla Supremes: Uniform Statutes Aren't

In Phantom of Brevard v. Brevard County, the Fla. Supreme Court put home rule over legislative authority by upholding a line of cases requiring the Legislature to use ridiculously specific magic words in order to preempt local authority.

A statute governing the regulation of fireworks that has as its purpose and intent section the following:

This chapter shall be applied uniformly throughout the state. Enforcement of
this chapter shall remain with local law enforcement departments and officials
charged with the enforcement of the laws of the state.

The Supreme Court held that this does not prevent local governments from adopting additional provisions that add regulatory requirements or restrictions to the statutory framework with this language:

However, focusing on potential differences caused by varying local requirements
confuses the issue. Because chapter 791 does not include an insurance coverage
standard or requirement, chapter 791 is not being applied disparately. In other
words, a state statute is not being applied in a non-uniform manner when a
locality enacts a regulation on a particular matter that is not addressed in the
statute. The statute is being applied uniformly. It is the local ordinance that
is creating any variance between counties.
In other words, the statutory requirement for uniform application is totally superfluous and ineffectual. It is a matter of fundamental " law that a local government could not modify the statute itself. The idea that a statute providing for uniform laws, or uniform application, does not evidence legislative intent to preempt the subject matter from local standards is a slap in the face to the legislature and makes a fetish out of home rule. While local government have home rule under the constitution, the constitution also clearly provides for the supremacy of the state legislature and the courts seem to have forgotten it - or at least have developed an unreasoning hostility to it.

LESSON: Legislative draftspeople simply need to start adding the phrase: "all regulation or setting of regulatory standards is hereby preempted and local government shall have no authority to adopt different standards" to pretty much every piece of environmental, land use, and business regulation that goes through their doors.

A Heavily Divided Court Lets the Alternative Referendum Amendment on the Ballot

In Advisory Opinion RE: Florida Growth Management Initiative Giving Citizens the Right to Decide Local Growth Management Plan Changes, a deeply (and somewhat bitterly) divided Court determined that the Ballot Title and Summary for the "alternative referendum amendment" were not misleading, and that the matter could be put before the voters on certification of sufficient signatures.

The issue that the dissent fixed on is the one that might also be the political chain around this measure's neck: the very restrictive requirements for signing petitions to require a referendum for a particular plan amendment. The dissenting justices found that the summary's failure to disclose those restrictions made it misleading. I'm quite sure that quotes from the dissent will be placed front and center in materials attacking the amendment.

I personally wish those provisions were not there - or less onerous. I think that the idea of having a referendum by petition (rather requiring them automatically) is a decent compromise - but the pretty extreme limitations on this amendment may limit its use as an anti-Hometown Demagogy weapon.

Save Our Beaches - the Review

Intro and Disclaimer: after my earlier comments about this decision, I took a lot of time to write this one. I won't back down from my earlier statements that the majority got it wrong - really wrong -- and that Justice Lewis' dissent has it right.

In Walton County et al v. Stop the Beach Renourishment et al, the Florida Supreme Court reversed the First District’s determination that a beach renourishment permit issued by the DEP was invalid because the permit relied on an erosion control line (ECL) that in turn violated a statutory provision that prohibits the establishment of an ECL if it would constitute a taking, unless there was provision for compensation. The establishment of an ECL statutorily fixes the property limits, establishes fee ownership in the state for all lands seaward of the ECL, and replaces certain common law riparian rights with statutory rights.

I first want to note that the case presented significant public policy problems for the Court. The existing beach renourishment statute prohibits beach renourishment without an ECL, even with an easement from the upland owners. This is predicated on a legislative determination that public funds for beach renourishment should not be used to put sand on “private” property (which can be interpreted as having a constitutional basis). Unless this statute were amended, a decision upholding the 1st DCA would have had significant negative consequence for future beach renourishment projects, as well as creating the possibility that existing ECLs would have been overturned – or that the state would have had to compensate landowners in order to keep the ECLs in place. Given these tensions, it is not surprising that the Court would find a way to overturn the 1st DCA.

[Side note: the Court’s resolution of the problem sidestepped the interesting issue of what kind of compensation would have been required for a taking. As the Court found, the statute does provide a number of substantive right to replace the rights destroyed. Where value is “put back” by government action, this is taken into account in calculating damages. It may well have been that any damages due would have been non-existent or nominal, and might even be subject to the kind of administrative “default valuation” that the Court permitted in the citrus canker cases.]

To be short and sweet, I think that Justice Lewis got it right in his dissent, and that the majority not only got it wrong, but got it wrong in a way that was both disingenuous and that creates future litigation problems. I’ll identify just a few of those.

1. The facial taking problem. The Court reengineered this case into being a facial constitutional challenge to the statute. It clearly isn’t for all the reasons set forth in the dissent. This creates several new problems:

a. The Court left the state open to massive federal takings claims – the state has refused to provide compensation under the state constitution, making federal claims ripe and justiciable; if the federal courts disagree that the statute provides an adequate “swap” for the rights taken, it could now find that compensation is due under the U.S. Constitution.

b. The Court pulled a nasty trick on the litigants. It labeled the challenge facial (even though it clearly was , then posited circumstances not pled (regarding how avulsive effects might affect the application of the statute) to hold that the statute could take the right to accretion under all circumstances, so couldn’t be a facial taking. What does this means for pleading as applied challenges? Can the Court always turn around and apply other facts to deny your claim?

The opinion reflects a frightening lack of understanding of how administrative law has developed since Key Haven with respect to litigating administrative challenges where there is a claim that the statute (or action) violates the constitution or another statute - issues that an administrative law judge does not have jurisdiction to decide, but which the Court of Appeal does have jurisdiction over. The Court also did not appear to understand the statutory provisions at issue. Critically, the Court does not recognize (as the 1st District did) that the issue of whether the statute (which provided that an ECL was void if it would create a taking and there was no provision for compensation - which was the case here) was violated as opposed to whether there was a constitutional violation. Under the US Supreme Court decision in First English, a statute does not create an unconstitutional taking unless it both takes property and fails to provide compensation. So under this statute, there is clearly an as applied issue as to whether the ECL in this case violated the statute by taking property (riparian rights) without providing compensation.

The potential damage that the Court's end-orientated analysis (or lack thereof) has on broad areas of litigation where administrative challenges have statutory or constitutional dimensions cannot be overstated. I expect that this is the area where we will see a bunch of articles showing up in the near future.

2. The claims preserved. In two footnotes, the Court notes circumstances that still could create a takings claim. First, if the ECL was established too far landward (landward of the actual MHWL over 19 year period), it could create a taking of the “gap” lands. The Court thus raised a statutory/permitting issue to constitutional status. Second, the Court noted that if the permit allowed too much beach to be added, it could create a taking by imposing burdens on the “right to access” the water. Between the two of these claims, the Court created an entirely new set of as applied attacks that can be waged against the establishment of an ECL and gave them constitutional status.

3. The poor analysis problem. Again, with all due deference to the policy problem facing the Court, the analysis of some of the issues was unrealistic and unconvincing, and many of which are just scary.

a. The new constitutional duty to protect the beach. The Court read the constitutional provisions regarding public trust for navigable waters and waters to the high water mark together with the provision regarding protection of the natural beauty of the state to create an entirely new constitutional provision (and this from a “conservative” jurist!): “Concisely put, the State has a constitutional duty to protect Florida’s beaches, part of which it holds ‘in trust for all the people.’” HOLY COW! What exactly does this mean? Does this constitutional duty extend only to how it regulates the rights of beach owners, or does it mean that the Legislature has a constitutional duty to renourish beaches? Does it have a duty to condemn private property along beaches to create/protect them?

b. The avulsion discussion. I will let others who actually specialize in riparian/littoral rights take this apart. Let’s just say that this seemed to be thrown together to justify why a facial taking wasn’t demonstrated, and in doing so may have created another constitutional problem. The Court argued that the right of landowners to accretion was limited by the avulsion doctrine, such that the state would have the right to lands suddenly added by a hurricane – or the right to put those sands back in the water to return the high water line to its pre-event state. The Court then cited to a true riparian case (freshwater) for the proposition that landowners have a right to return their property to a pre-storm event condition if there is sudden avulsion/erosion from an event. This is going to make for VERY interesting arguments in the future, since DEP and local governments are more and more restrictive about issuing emergency permits to allow landowners to protect their lands after storms. This could create new constitutional challenges to anti-hardening rules/ordinances and other regulatory limits on a landowners’ right to recover property lost to storms.

c. The “swapped rights”. The Court found several “swaps” of rights to be reasonable: the riparian right to accretion is “swapped” for the state’s obligation to maintain the renourished areas; that the riparian “rights of access” is swapped for a statutory “right of access” (undefined); and “rights of view” enjoyed by beachfront property owners are protected.

  • i. While it might be arguable that the swap of the right to accretion for a statutory obligation to protect the beach (right) is objectionably reasonable, it is absolutely unclear whether it is appropriate constitutionally – and this is going to be a federal case.
  • ii. As for the right of access being equal – it’s not, because associated with the ECL and a renourishment then landowner loses (i) the right to exclude the public from areas between the beach and the property, and (ii) the right to use those areas. Here’s the rub: before ECL and renourishment, a beachfront owner can park her Hobie Cat twenty feet from the water and put it in any time, and can keep people away from it; afterward, the landowner can’t do these things (hence the footnote that indicates adding too much beach might be a taking).
  • iii. Regarding the right to a view, the Court found that the statutory prohibition on placing structures on the reclaimed lands protected the riparian right to views of the water; but riparian view rights extent to activities on or in the water, and by cutting off the riparian rights, these rights are extinguished. This could have consequences to landowners close to proposed piers, jetties, or similar structures or uses.

d. The demise of the “right of contact with the water” and with it, the right to wharfage and access to navigable water. The Court totally mixed together the common law “public trust” doctrine of sovereign ownership to the MHWL with Florida’s constitutional definition that this includes the wet sandy beach to claim that the riparian “right of contact” with the water doesn’t exist. Essentially, the Court argues that the existence of the foreshore (the wet sand between the daily low tide and the daily high tide), along with the fact that the MHWL moves, means that there is no right to touch the water (or that this right is subordinate to or inherent in the right of access). This discussion totally misses the purpose of the right to contact, which along with the right of access supports the historic riparian and littoral right to wharf out to navigable water. While this issue was not discussed in the 1st District opinion (and probably not have been tried in the context of the as applied administrative challenge to the permit), the right to construct a pier or wharf in order to connect the upland to navigable waters was associated with and dependant on the right of access to the water and whether the property touched the water – purely upland property didn’t and doesn’t have this right. While it is unlikely that any individual homeowner would utilize that right, commercial or other properties might – at least until it’s extinguished by the establishment of an ECL

I can only suggest that we haven’t seen the last of this issue, and that the next round of litigation is likely to be even more challenging.

Fla Supremes Turn a Blind Eye to Costs of Hometown Democracy Amendment

In Advisory Opinion re: Referenda Required for Adoption and Amendment of Local Comprehensive Land Use Plans, the Florida Supreme Court rejected a second proposed financial impact statement for the proposed Hometown Demagoguey amendment.

The gist of the Court's complaint was that the impact statement assumed that there would have to be a significant number of special elections:
As drafted, the revised financial impact statement would mislead voters into
believing that implementation of the amendment will require the expenditure of
millions of dollars. Such an inference is patently contrary to the purpose of
the amendment, which is to limit the number of amendments to local comprehensive
land use plans.

Of course, the courts statement of the "purpose" of Hometown Demagoguey is simply not true: the purpose is not to limit the number of amendments, but to subject them to referenda. Limiting the number of amendments is not a stated purpose - at least it's nowhere in the ballot title and summary.

A majority of the Court (at least this time - see later opinion on the "counter-amendment") seem dedicated to seeing this as a "good government" reform- there seems to be no recognition of the highly problematic and anti-democratic effects it will have. There's no recognition of the number of state-mandated amendments that will have to be processed (many on an annual basis) and voted on, no recognition that there is a right to seek plan amendments, no recognition that each amendment might require its own place on a ballot, no recognition that there aren't twice a year elections in most jurisdictions.

Tuesday, October 28, 2008

Fifth DCA Reduces Standing in 163.3215 Challenges to a Pleading Exercise

In Save the Homosassa River Aliance v. Citrus County, the 5th District dramatically expanded the scope of standing under section 163.3215, essentially eliminating any meaningful limitation from the language that requires a plaintiff to claim and demonstrate impacts to an interest protected by the plan that exceeds that of the general public.

The challenge involved a rezoning that increased density, from 15 to 87 units.

In reviewing the cited allegations of the complaint, at least one of the plaintiffs probably alleged sufficient standing based on potential traffic impacts to a hurricane evacuation route. But the rest of the allegations are just junk - claims that the plaintiffs enjoyed canoeing on the river that are not then supported by any claim of particular plan policies that protect those interests and that would be violated by the development order.

In order to gut the definition of "aggrieved or adversely affected" in the statute, the court sets up a straw dog of a "unique" interest or impact - which is clearly not required, and then allows "any" impact to "any" interest:

The allegations show that the Plaintiffs all have a direct and demonstrated
concern for the protection of the interests furthered by the comprehensive
plan that would be adversely affected by allowing a development that violates the plan.
An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a
"unique harm" limitation onto the statute would make it impossible in most
cases to establish standing and would leave counties free to ignore the plan
because each violation of the plan in isolation usually does not uniquely harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right.

But for the most part, the allegation in the complaint cited by the Court didn't claim that the development would harm the protected interests that were claimed in any meaningful way. The court's attempts to distinguish the earlier Keyser and Putnam County Envt'l Council opinions are simply unconvincing.

The REAL problem is that the courts now permit "strict scrutiny" of the plan that doesn't discriminate between the broad language of goals or objectives, and many totally subjective policies. There is no way for ANY development to be consistent with most plans if every part of the plan is read expansively.

Read the dissent to this case. What's coming is an explosion of cases that will essentially halt any development that anyone doesn't like for as long as the NIMBY-neighbors can afford to litigate.

Friday, October 24, 2008

A New Attack on a Comp Plan Amendment - and Concurrency Creates Need for Interlocutory Review

OK, this one is innovative and interesting - and I can't believe it hasn't been raised before.

In CNL Resorts v. City of Doral, the 3d DCA overturned an ALJ order that dismissed a counts in a challenge to a comprehensive plan amendment that claimed inconsistency with the provision of the state comprehensive plan that requires consideration and protection of private property rights.

The first interesting issue was that the court accepted the interlocutory appeal of the dismissal on the basis that concurrency windows were shutting and would harm the landowner:

Here, we agree that CNL would be deprived of an adequate remedy and suffer
irreparable injury due to the City having limited roadway capacity. In order to
develop property, landowners need to obtain the requisite permits from the City.
Thus, during the pending proceedings, the surrounding permitted neighbors will
continue to develop their properties and consume the available roadway. In turn,
once the available roadway capacity is filled, CNL will not be able to obtain a
permit, and its development rights will be extinguished. Therefore, CNL has
shown there is no adequate remedy without this Court’s immediate review, and we
have jurisdiction to hear CNL’s petition

On the substantive issue, the ALJ had found that the petitioner was trying to raise constitutional claims that were not proper in the administrative forum. The 3d DCA disagreed, finding (correctly, I think) that the claim was whether the statutory requirement to consider and respect property rights had been met.

If this challenge is ultimately successful, it creates an interesting theory for landowners who believe that the plan provisions improperly restrict property rights - worth reading for everyone.

4th DCA - No Repeal Referendum for Small Scale Amendment and Rezoning (take that Blackner!)

In City of Lake Worth v. Save Our Neighborhood, the 4th DCA gave Hometown Demogogcy founder Leslie Blackner a black eye when it rejected the lower court's decision that allowed a recall referendum to be initiated against city ordinances that adopted a small-scale plan amendment and rezoning.

At issue was Section 163.3167(12), which prohibits any initiative or referendum for plan amendments affecting five or fewer parcels. The statute was adopted specifically to ensure that small scale plan amendments would not be subject to referendum when the status of those amendments as legislative versus quasi-judicial was still at issue.

Ms. Blackner and Ross Burnaman misled the Florida Supreme Court into error in the Hometown Democracy ballot summary case, and Burnaman helped with the 2d DCA's St Pete Beach debacle, by arguing that the prohibition of some initiatives regarding plan amendments indicated legislative approval of all others (though this was clearly NOT the intent).

Now Ms. Blackner argued that the statute didn't prohibit using a referendum to repeal a small scale plan amendment and rezoning on the basis that parcels other than those subject to the amendment and rezoning were "affected" by it. Somehow, they got the trial court to buy this clearly ridiculous argument, which would effectively gut the restriction totally. The Fourth didn't buy it and overturned the circuit court.

Thursday, October 23, 2008

4th DCA - 4 Limitation on Inverse Condemnation for Illegal Exaction and Stealing Doesn't Offend Public Policy

In a probably correct opinion that is marred by very bad discussions of public policy, the 4th DCA held in New Testament Baptist Church v. FDOT that the lower court properly dismissed a counter-claim/cross-claim for inverse condemnation brought 13 years after an allegedly illegal dedication demand.

The claim was brought by a church that had been required to dedicated 7.5 acres (of its 19) in 1992 for streets (that the city didn't build) in order to get a plat approval. When the DOT went to condemn more of its property in 2005, the church cross complained that the earlier dedication was illegal.

The 4th cites a bunch of other cases finding that inverse condemnation cases need to be brought within 4 years. The cited cases, however, involved direct regulation, not exactions. The court distinguishes several exaction cases where the claim was made much later than the regulatory requirement.

The disturbing issue is the court's treatment of the question of whether an unconstitutional exaction is void or voidable. The court noted that contracts or other actions that are in violation of public policy are void. The court then holds that even an illegal dedication requirement doesn't implicate public policy because only the victim of the illegal act is harmed. The court goes on to justify this position by claiming that the church "benefitted" from the plat. This totally flies in the face of the "unconstitutional condition" cases that Nolan and Dolan spring from, which recognize that where the government imposes an illegal and unconstitutional condition on a government action on a permit or benefit, the victim does not need to refuse to accept the benefit in order to complain.

The Court forgets the basic tenet: the issuance of a development order is not a "benefit" to the landowner because the landowner has an underlying property right to develop. The development order is the governments' OBLIGATION arising from its choice to regulate a property right in the public interest; a landowner's development pursuant to a plat is not the "acceptance of a benefit" from the government because the landowner has the underlying right in the first place.

Tuesday, September 30, 2008

Fla Supremes Release Opinion in Walton County Beach Case

I'll provide analysis later (hint- IMHO Justice Lewis' dissent is dead on and the majority opinion is not), but here's the link to Walton County v. Stop the Beach Renourishment.

Thursday, September 18, 2008

Supreme Court Totally Reverses Strand on Rehearing

In Strand v. Escambia County, (opinion on rehearing), the Florida Supreme Court reconsidered its earlier decision and reversed it entirely.

Under the new decision, local governments, school boards, special districts, etc., can issue bonds that may be repaid in all or part with ad valorem tax monies without a referendum approval so long as the covenants clearly state that the ad valorem taxing authority is not being pledged to pay the bonds; that is, that the bondholders cannot sue to force the government to raise or levy ad valorem taxes to repay the bonds.

In separate opinions, it validated bonds issued by Community Redevelopment Agencies that are payable with tax increment financing funds City of Parker v. State, and Bay County v. Town of Cedar Grove. The Cedar Grove case is particularly interesting because the tax revenues involved are levied only be the County, but fund a CRA within a city that doesn't levy ad valorem taxes (go figure!)

I'm sure there will be LOTS of analysis in coming days, so I just wanted to flag the case right away. It certainly involves the most significant reversal on rehearing by the Fla Supreme Court I've ever read.

4th District - Court Enforcement Orders Cloud TItle

In Henly v. McDonald, 971 So.2d 998 (Fla. 4th DCA 2008), the court found that the existence of a code enforcement action against property constitutes a cloud on the title. This case involved a dispute over a home sale when the code enforcement action was brought while the property was under contract, but the key finding is critical in other areas.

By clouding title to the property, the imposition of a code enforcement order or lien impugns the property and therefore implicates the due process clause -- substantive and procedural - and could involve 42 USC 1983 - including damages if the order is improperly applied or prosecuted.

Section 162.06(5) provides that setting a code enforcement matter for hearing puts notice disclosure requirements on a property owner selling the property. Harm therefore can attach to the property owner based only on the code enforcement officer's non-noticed, non-hearing determination that a violation exists. The statute therefore creates the possibility of
a pre-hearing deprivation of property. This is in addition to the (uncorrected) problems in the statute and many ordinances identified in Massey v. Charlotte County and Wilson v. County of Orange.

11th Cir Reverses District Court Decision NOT finding commece clause violation

in Cachia v Village of Islamorada, the 11th Circuit reversed a decision by a different district court judge that had dismissed a commerce clause claim against Islamorada's "formula retail" ordiance.

The 11th found the complaint stated a cause of action and remanded for proceedings. What will be interesting to see is whether the Plaintiff will be able to establish the critical facts at trial that were stipulated in Island Silver & Spice.

11th Circuit Upholds District Ct Holding in Islamorada "Formula Retail" Case

In Island Silver & Spice v. Islamorada, the 11th Circuit upheld the District Court's determination that the Village of Islamorada's "formula retail" ordinance violated the commerce clause.

While the Court doesn't open a door wide for a new way to attack land use restrictions wholesale (and the reach may be limited by the type of facts to which the city stipulated), this opinion needs to be studied by government and private attorneys alike.

Sunday, August 10, 2008

Back in the Blog

Not many land use cases in the last six months, but a few good ones. Still waiting for the Supreme Court decision in the beach/erosion control line case. Good to be back.

Best to all -

2d DCA - Standing for Cert Review Must Be Established at Hearing

In an opinion certain to create further chaos before local commissions, the Second District in City of Ft. Myers v. Splitt et al, held that certain citizens and citizens groups had not established sufficient standing to maintain a certiorari challenge to the approval of a PUD ordinance.

The City approved a PUD. Neighbors and activist groups opposed it at the hearing, then brought both a certiorari challenge and a 163.3215 consistency challenge, which was later dropped.

The City claimed before the circuit court that the various petitioners had not demonstrated facts sufficient to establish standing under Renard v. Dade County for determining whether special damages are present. The Petitioners disagreed. The Circuit court found that the 163.3215 definitions of affected parties governed and ruled for the Petitioners.

The Second DCA found that once the consistency challenge was dropped, the Renard standing test applied, and that the facts in the record could not establish standing per Renard. The Court found:

We reject any suggestion that Mrs. Splitt et al. had standing even under
the more restrictive requirements of Renard and that the circuit court's failure to
apply the correct law therefore was harmless error. Standing under the Renard
special damages test is typically based on some impact on the litigant's
interest as an owner of property
. See, e.g., Kagan v. West, 677 So. 2d 905,
908 (Fla. 4th DCA 1996); Pichette v. City of N. Miami, 642 So. 2d 1165,
1165-66 (Fla. 3d DCA 1994); State ex rel. Gardner v. Sailboat Key, Inc., 306
So. 2d 616, 618 (Fla. 3d DCA 1974). There is no warrant for concluding that
if the circuit court had applied the correct law, it would have determined
that Mrs. Splitt et al. established their standing under the special damages test

Emphasis added.

Two critical problems will be accentuated by this decision as written. First, where a local ordinance does not specify who is a party and who has standing to appeal, a bunch of time will have to be spent establishing standing facts before the local commission. You can just see the issues - neighbors will quite properly start demanding 20-30 minutes so that they can enter sufficient facts to establish standing/party status.

Second, the Second District was clearly led into mis-stating or mis-interpreting the Renard rule as being somehow tied to "ownership" when it clearly was not. The Renard test turns on whether the complaining party can establish an interest that is protected by the ordinance involved, and affected by the decision, to a different extent than the community at large. Renters and frequent users of property (or roads, etc.) affected by a decision could establish such interests. Furthermore, nothing in Renard would prevent associational standing as otherwise established in Florida law.

2d DCA - Code Enforcement Costs/Liens - Strictly Construed

In Stratton v. Sarasota County, (which is a partial end to a long sad story), the 2d DCA held that the costs that the County could recover pursuant to Code Enforcement proceedings under Chapter 162 were strictly limited to the costs described in the statute. Essentially, the County tried to collect for administrative management/overhead costs in excess of the actual costs involved and the Court said no.

But the important issue is that the Court upheld the meaning of Article I, Section 18 by limiting Sarasota County's ability to levy fines in the code enforcement process to those expressly permitted by the statute.

A Totally Useless Annexation Decision

While the participants surely understand the impact of the followign opinion, I'm sure that the rest of us don't.

Presumably, Hernando County lost before the circuit court and then won before the Fifth on the basis of the McBride case - which dealt with "compactness" as a criterion for annexation (not "pockets"), but without much explanation.

Here's the entire opinion:

Petitioner is challenging two annexation ordinances on the basis that they
create an impermissible “pocket” of unincorporated area within the municipal
boundaries. Concluding that the lower court departed from the essential
requirements of the law, we grant the petition and quash the lower court’s
order. See City of Center Hill v. McBryde, 952 So. 2d 599, 603 (Fla. 5th DCA

The Fifth keeps behaving in very unpredictable ways in these cases. Compare its treatment in the City of Cocoa case. One can only conclude that the treatment one of these cases gets in this District is totally dependant on the panel you pull rather than the facts of the case.

Fifth District: Finder of Fact Bound by Stipulations to Facts

In an opinion that may be important to attorneys settling disputes over land use issues, the Fifth District in Seminole Electric Co-op v. Dep't of Envt'l Prot. remanded a final order denying an electric plant siting permit to the Secretary with directions to enter an order approving it.

The long and short is that pursuant to certain provisions of the Siting Act, all the parties to an administrative proceeding entered stipulated facts that covered all of the relevant criteria set forth in the Act. The Secretary (whether for political or policy reasons, we don't get to know) tried to remand it to DOAH to get "more facts". When it was pointed out that the Act didn't permit this, the Secretary denied the permit, claiming that the "sparse record" didn't allow the required findings.

The Fifth reversed. The Court found that the stipulations were binding and were complete as to all the required findings. The Secretary could not reject the stipulated facts as insufficient or incomplete when the agency below and the other parties had found them complete, and based on the stipulated facts, there was no basis not to grant the permit.

This is a roadmap for settling other cases that end up in quasi-judicial hearings. While under Chung and other "contracting away the police power" cases, the local government can't enter a settlement agreement that promises that a permit will be granted, it CAN enter a settlement as to all the stipulated facts that will govern a decision (including statements, for example, that the staff finds the application consistent with all elements of the comprehensive plan). This effectively leaves the decision making body with no discretion to deny the permit.

Decision -Maker Can't Testify in Matter

In Verizon Bus. Svcs et all ve Dep't of Corrections et al, the First District reiterated a simple proposition that seems to escape courts reviewing local government decisions: it is a fundamental violation of due process for an administrative decision maker to also provide testimony (evidence) in the matter decided.

This case involved a bid dispute in a matter where the Secretary made the bid determination. The challenger (disappointed bidder) took the Secretary's deposition. The ALJ recommended dismissal, and the Secretary (rather than an appointee) issued the final order of dismissal. The aggreived vendor appealed and the First District reversed and remanded for a decision by a neutral appointee, noting that there is no no way that a decision maker can impartially reveiw a decision based on in any part on his or her own testimony (this is the Ridgewood Properties principle). The Court also noted that this was a violation that survived the failure to raise it before the tribunal, because it is fundamental.

How basic. How simple and obvious. How lost on courts reviewing local government decisions, where the commissioners chime in with their own views of a matter or statements of fact regarding the petition - often after the record is closed - in making decisions. This case should be cited when challenging decisions where a commissioner makes prejudicial or other statements on the record that are relied on for the decision later.

Fla Supremes - The Governor Can't Sign "Compacts" - Separation of Powers Still Rules in Fla.

In Florida House of Representatives v. Hon. Charles Crist, the Florida Supreme Court exercised original jurisdiction (writ of quo waranto) to hold that the Governor's approval of a gambling compact with various tribes was outside his constitutional authority because the compact permitted violations of state law.

The Court held that even under the apparent federal authority, the gambling permitted bythe compact was prohibitted by legislation, and the governor therefore had no power to enter such a compact. The Court did not reach the question of whether or when the Governor could sign a compact that did not otherwise directly violate state law; or whether such a compact would have to be ratified first.

On one hand, this is a fairly bread and butter separation of powers case. On the other, it demonstrates that we all need to become way more familiar with the writ of quo waranto - I suspect that we will be seeing it more often as a way to challenge the authority of executive actors to take certain actions (as beyond their delegated authority, when the APA doesn't control it), and perhaps against local governments to prevent actions that violate state law.

Fla Supremes - Administrative Officers Can't Challenge Constitutionality of Statutes

In The Crossings at Fleming Island CDD v. Lisa Reinhardt Echevarria et al, the Florida Supreme Court issued a well-reasoned opinion that Property Appraisers can't challenge the constitutionality of provisions of state law governing appraisal of property. The problem: understanding the scope of the decision in other contexts.

It has long been held - mostly in cases involving taxation statutes - that a "ministerial officer" cannot challenge the constitutionality of a statute that the officer must implement. The reason - to avoid chaos and executive nullification of legislative acts. Some question had been raised whether a tax appraiser could raise the constitutionality of a provision "defensively" - as a defense to a challenge to a decision by the Appraiser or Value Adjustment Board. Here, the Court put those cases to bed.

The problem: what about a city/county commission challenging the application of a charter provision? a proposed charter provision? an ordinance proposed by initiative? What about "as applied" challenges rather than facial? And can a local government - which is not a "ministerial officer" of the state -- challenge a state statute as violative of the home rule or other provisions of the state constitution?

These issues are not addressed - but I suspect that they will be in the future.

Fla Supremes: State Agencies Can't Hide from Contract Liability

In Dep't of Envt'l Prot. v. ContractPoint, the Florida Supreme Court held that where an agency is found to have breached a contract, it may not hide behind a statutory provision requiring legislative authorization to pay the judgment.

As the Court handles it, this is a legislative interpretation question involving conflicting statutory intents (the dissent disagrees).

This is very important to anyone who contracts with state agencies (including, perhaps, development-type agreements, easement agreements and negotiated sales) and should be read by all.

I'm also guessing that this will result in a bunch of cases where folks try to find ways to frame cases as being based in contract rather than tort.

Sunday, February 17, 2008

4th DCA Mis-Cites GBV to Overrule Irvine and Most Administrative Law

OK, back on my soapbox.

The Fourth DCA committed a frequent but grave error in Wal-Mart v. Town of Davie when it cited the Florida Supreme Court's opinion in G.B.V. Int'l for the proposition that written findings are not required in quasi-judicial decisions involving zoning and land use.

Fact: there is langauge to that effect in G.B.V. ,and in fact a disagreement among the justices, but it is pure dicta. Fact: No party raised or briefed the issue in that case, or in the Florida National Properties opinion that was released the week before G.B.V. What happened is that Justice Pariente - quite rightly, and consistent with ALL prior cases except Snyder -- raised the absence of written findings as so inhibiting to effective judicial review as to deny due process. The other justices didn't agree - but agreed to refer the matter to the Justice Administration Commission, which in turn found no authority to adopt rules on the matter.

Fact: Prior to Snyder, every reported cases in Florida that can be found (and pretty much every federal case on administrative proceedings) held that written findings were a due process requirement because effective judicial review is impossible without them. See the cases cited by Justice Pariente in G.B.V., but more importantly, see Snyder and Irvine v. Duval County .

Fact: The controlling decision under Florida law for all quasi-judicial decision except rezoning remains Irvine, where the Supreme Court reversed the 1st DCA and approved the dissent below and where the 1st DCA on remand adopted the dissent as its opinion. That dissent established not only the "burden shifting test" for special exceptions (and other quasi-judicial decisions) but clearly and unequivocally reiterated longstanding Florida law that required written findings in all quasi-judicial zoning decisions.

Fact: Snyder declined to apply the Irvine written findings rule to rezonings, but never held that the findings requirement did not apply to any other decision. Nor could it, because that broad issue was not raised below -- the argument briefed and at issue in Snyder was only whether the Irvine rule applied to rezonings, NOT whether it was the right statement of the law.

Law: Under standards of appellate review, dicta and unbriefed issues are NOT precedent and NOT binding on later courts. See. e.g., Schmitt v. State, 590 So.2d 404, 414 ( Fla. 1991). As the Florida Supreme Court stated the rule:
We take this opportunity to expressly state that this Court does not
intentionally overrule itself sub silentio. Where a court encounters an express
holding from this Court on a specific issue and a subsequent contrary dicta
statement on the same specific issue, the court is to apply our express holding
in the former decision until such time as this Court recedes from the express
holding. Where this Court's decisions create this type of disharmony within the case law, the district courts may utilize their authority to certify a question of great
public importance to grant this Court jurisdiction to settle the law.
Puryear v. State, 810 So.2d 901, 905-906 (Fla. 2002).

Snyder did NOT expressly overrule its earlier decision in Irvine, or the First District's express ruling. It simply declined to extend it. The dicta in Florida National Properties and G.B.V. did not and could not overrule Irvine or extend Snyder because the issue of written findings was not before the court.

Therfore, the Fourth District's opinion in this case is legally wrong, as are the numerous circuit court decisions that "follow" Snyder and refuse to follow Irvine.

Differential Treatment of "Assembly" for Commercial and Religious Uses Violates RLUIPA as a Matter of Law

In Chabad of Nova v. City of Cooper City, the Southern District found on a motion for judgment on the pleadings that the city was liable under RLUIPA. Various commercial districts allowed uses that involve "assembly" of people -- like restaurants, theaters, clubs, etc. Religious assemblies were prohibitted, however.

While the city claimed that "business assemblies" were equally prohibitted, the court saw this as pretextual at best and found liability based on the city's admissions that theaters, restaurants and similar uses were permitted.

Fla S Ct rejects Review in Pennisular Properties: 70.51 Stays Time for Filing Cert

In City of Bradenton v. Pennisular Properties, the Fla. Supreme Court rejected the City's appeal. This leaves the 2d DCA's opinion in force, which means that filing a request for mediation under 70.51, Fla. Stat. stays the time for filing for certiorari review.

The 70.51 process provides for mediation and then what I call a "magistration," where a special magistrate will determine whether a government decision is unreasonable or unfairly burdens property. The magistrate's recommendation (or a settlement) can be the basis of a local government action to implement the settlement, including new variances, etc.

The petition is a simple 2 page affair, cheap and easy to do.

Many local government attorneys dislike this process - they don't like the idea of tainting a nice clean denial with messy processes with standards that don't unduly favor the government.

But by allowing more time to not only file the cert petition, but also to line up other defenses or causes of action (your Bert Harris claim, for example), filing a 70.51 provides a means for bringing more firepower to bear on the mediation process and increase the likelihood of settlement without filing the litigation. By holding that the stay provision applies to certiorari, the Second assured the usefulness of this tool, which should be in every developer attorney's toolbox.

Mobile Home Statute Doesn't Apply if Eviction Before Rezoning

In Celebration Pointe Townhomes v. Rancho Margate Mobile Home Park, the Fourth District held that the owner of a mobile home park is not subject to the relocation and alternate site availability requirements of Chapter 723 do not apply where the owner of the park evicts residents for a statutorily acceptable reason and process before applying for rezoning.

Illegal Exactions Protected by Bond Validation

In Frederick et al v. Northern Palm Beach County Improvement District et al, the District Court upheld the circuit court's dismissal of claims raised by various homeowners who claimed that they were subjected to unconstitutional exactions.

The homeowner's predecessors in interest (the developer) cut a deal with the county to set up an improvement district to fund not only the roads internal to the project, but also to build a major section of arterial road. While the project was still under the developer's control, an assessment was levied (for 20 years) against property in the development and the bonds were validated.

None of the other developments who benefit from the improved major road were assessed. Later, homeowners subject to the assessment -- understandably annoyed when they realized they were paying for infrastructure for the entire area, and effectively subsidizing the other developments-- sued to establish that the assessments were illegal because they were not proportionate to the impacts of the paying development.

The circuit court dismissed, holding that the statute of limitations had run the validation of the bonds precluded later challenges to the assessments. The District Court affirmed, holding that the homeowners were bound by their predecessor's knowledge of the date of the validation/action.
In the case now before us, we must balance the interests of the Homeowners in
receiving notice of the exclusive nature of the Unit 18 assessments against the
public policy concerns highlighted in H&B Builders. Weighing these competing
interests, we find that, on these facts, the Homeowners interests are outweighed
by the need of the District for certainty in creating water management plans and
funding those plans. As a result, the approval and creation of the assessments
and impact fees here by the District provided sufficient notice to then existing
and future homeowners of their obligations. This is true even if the assessments
and impact fees were improperly levied. See Ves Carpenter, 422 So. 2d 342;
Spring Lake Improvement District, 814 So. 2d 1077.

So, clearly, sue before you buy - or at least be sure that your developer did.

Court permits creation of "aspirational policies" in comp plans

In Indian Trails Improvement District v. Department of Community Affairs , the 5th DCA approved the County's effective planning-based takeover of an independent utility's franchise area by creating a new category of "aspirational policies" which the local government can adopt with no supporting data and analysis.

What is an aspirational policy? Why would it be needed in a comp plan? What happens when the local government starts giving it regulatory meaning as justification for other actions?

On the other hand, the Court did hold that indirect impacts on a business or other interest can be sufficient to establish that a person is "aggreived or adversely affected" for standing.

Failure to Appear or Raise Issues at QJ Hearing Does not Preclude Standing under 163.3215

In Dunlop v. Orange County, the 5th DCA held that a aggreived neighbor is not precluded by waiver from demonstrating standing and raising issues in a de novo proceeding under 163.3215 for failure to do so in the quasi-judicial proceeding before the local agency.

Yeah, it's obvious: if you have a de novo hearing, all of the issues are de novo. Didn't stop Orange County from claiming waiver and preclusion to the apparently clueless circuit court.

Just another example that the circuit courts (improperly, in way too many cases) trust the positions of local government attorneys over their private counterparts, whether they are representing developers or neighbors. The result: effectively unreviewable discretion. De novo proceedings under 163.3215 are one of the exceptions -- too bad the courts refuse to give effect to the 2002 amendments and allow landowners to challenge improper interpretations of the plan to deny development orders.

Thursday, January 03, 2008

1st DCA- Gov & Cabinet Blows Call on "Not in Compliance" Plan - Now What?

In an interesting decision in Don and Pamela Ashley v. State Administration Commission, et al, the First District upheld the determination by the ALJ and Dep't of Community Affairs that the plan wasn't in compliance, but reversed a determination that two land use categories created by the amendments were not "mixed use" land use categories that need additional policies governing permitted density, intensity and mix of uses.

A read of the opinion makes this seem like a no-brainer, but . . . . ? The amended plan created "rural village" and "conservation residential" land uses that appear based on the parts of the record recounted by the court to allow a combination of residential and limited commercial uses. In defense of the County and DCA, it looks like these commercial uses were intended to permit existing land uses, such as marinas, restaurants, etc., that had been established in "pre planning and zoning days" to continue.

Here's the really interesting, but unexplored, part. The holding reverses and remands the decision back to the Governor and Cabinet (sitting as the Administration Commission"). Under the Growth Management Act, if the Admin Commission finds a plan amendment "not in compliance" they specify "remedial amendments". The local government either (a) abandons the plan amendment; (b) adopts the remedial amendments. or (c) puts the "not in compliance" amendments into effect and suffers economic sanctions identified in the Order of the Admin Comm'n.

So I would expect that the result of this order is that the Admin Commission is going to simply amend its order and add some additional remedial amendment language. Some additional policies limiting the amount of, and size of, commercial development will be added, along with a description of uses, etc. But it will be interesting to see how and whether the sanctions section is created and how detailed the new policies will have to be.

I'm guessing that what this mostly did was prevent St Joe Paper from developing (or at least planning and zoning) some "rural village" development areas intended to cluster relatively low densities into pockets and ensure that there is some limited local commercial (gas station, food mart, etc.) available so that the residents of these areas don't have to drive long distances to get basics -- and maybe to permit telecommuting and other "live-work" opportunities.