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 -
Robert
Sunday, August 10, 2008
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:
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.
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.
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:
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.
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
2007).
PETITION GRANTED; ORDER QUASHED.
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.
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.
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.
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.
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.
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.
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