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.