I've added a bunch of cases to the blog - and I still have some of the 3d and most of the 4th and 5th DCA cases since January still to go. This includes the 5th's hideous abortion in the Citrus County v. Hall's River case (though I got to the 1st's equally horrific Jacksonville v. Coffield opinion).
Happy reading!
Monday, July 06, 2009
3d DCA – Code Enforcement - Right but messed up
Monroe County v. Carter, 34 Fla. L. Weekly D993 (Fla. 3d DCA 2009)
OK - this is a rewrite of my original post, which was based on an incorrect reading of the opinion.
The 3d DCA accepted 2d tier cert review of the a circuit court decision that dismissed the notice of violation in a code enforcement case for failure to cite the date the violation began. The violation discussed (there were 6, only one is disccussed) invovled improper creation of habitable space below the FEMA line.
The objection below was that without a stated 'start date' for the violation, they couldn't state certain defences. The circuit court bought that by adopting provisions from the Part II citation standards and applying them to the notice of violation requrements under Part I. The 3d correctly determines that this was wrong.
The core problem in these cases tends to be that people get written up for doing unpermited work that violates current FEMA/flood control standards and other related violations where the work was done before they bought the place. So the owner doesn't know when or how the work was done. Add in really poor records management by local governments, and you find that the owner can't find permit histories going back 20-30 years.
Mmost local governments adopted FEMA standards around 77-78, and amended them a bunch in the mid-80's, and again in the 90's and again in the last 5 years, with the standards getting more and more strict. Add in again the fact that the bulding code only provides exemptions/grandfathering for permitted work. Add in again that the building code and local codes (and decisions interpreting them) put the burden of proof on the owner to establish grandfathering.
You end up with a situation where totally innocent owners are tagged with violations and can't get the proof they need to show that the property is grandfathered - and the code enforcement people don't really have to prove that a violation occurred when the construction or activity was first done.
So - I'm guessing that the circuit court saw this as a fairness issue and put its finger on the scales by using the "date violation occurred" langauge in the citation section to put the burden on the local government to prove that a current condition was illegal when it started. The 3d not only throws the legal mechanism out, but takes the view that requriing the government to prove that a current, non-conforming situation was a violation when it began would be too burdensome.
OK - this is a rewrite of my original post, which was based on an incorrect reading of the opinion.
The 3d DCA accepted 2d tier cert review of the a circuit court decision that dismissed the notice of violation in a code enforcement case for failure to cite the date the violation began. The violation discussed (there were 6, only one is disccussed) invovled improper creation of habitable space below the FEMA line.
The objection below was that without a stated 'start date' for the violation, they couldn't state certain defences. The circuit court bought that by adopting provisions from the Part II citation standards and applying them to the notice of violation requrements under Part I. The 3d correctly determines that this was wrong.
The core problem in these cases tends to be that people get written up for doing unpermited work that violates current FEMA/flood control standards and other related violations where the work was done before they bought the place. So the owner doesn't know when or how the work was done. Add in really poor records management by local governments, and you find that the owner can't find permit histories going back 20-30 years.
Mmost local governments adopted FEMA standards around 77-78, and amended them a bunch in the mid-80's, and again in the 90's and again in the last 5 years, with the standards getting more and more strict. Add in again the fact that the bulding code only provides exemptions/grandfathering for permitted work. Add in again that the building code and local codes (and decisions interpreting them) put the burden of proof on the owner to establish grandfathering.
You end up with a situation where totally innocent owners are tagged with violations and can't get the proof they need to show that the property is grandfathered - and the code enforcement people don't really have to prove that a violation occurred when the construction or activity was first done.
So - I'm guessing that the circuit court saw this as a fairness issue and put its finger on the scales by using the "date violation occurred" langauge in the citation section to put the burden on the local government to prove that a current condition was illegal when it started. The 3d not only throws the legal mechanism out, but takes the view that requriing the government to prove that a current, non-conforming situation was a violation when it began would be too burdensome.
2d DCA Upholds Extra-Jurisdictional Use of Eminent Domain for Road Expansion
Kirkland et al v. City of Lakeland, 3 So.2d 398 (Fla. 2d DCA 2009)
In Kirkland et al v. City of Lakeland, the 2d District upheld the legal right of the City to maintain eminent domain proceedings against land outside the city boundaries. Important to the Court’s decision was the fact that the road involved was identified as one that required expanded capacity for concurrency purposes in a joint planning agreement with the county.
In Kirkland et al v. City of Lakeland, the 2d District upheld the legal right of the City to maintain eminent domain proceedings against land outside the city boundaries. Important to the Court’s decision was the fact that the road involved was identified as one that required expanded capacity for concurrency purposes in a joint planning agreement with the county.
2d DCA Upholds Issuance of Permits to Phosphate Mine; Clarifies Standing and Cumulative Impact
Peace River/Manasota Regional Water Supply Authority et al v. IMC Phosphate et al, 34 Fla. L. Weekly D348 (Fla. 2d DCA 2009)
Charlotte County v. IMC Phosphate et al, 34 Fla. L. Weekly D357 (Fla. 2d DCA 2009)
In Peace River/Manasota Regional Water Supply Authority et al v. IMC Phosphate et al, the Court found that the users of waters below a proposed phosphate mine had standing to challenge the permit (well, duh). The Court also held that the DEP’s approach to dealing (or not dealing, from the petitioners' point of view) with cumulative impacts was legally justified, particularly by focusing on the statutory language regarding “adverse impacts” and the agency's authority to interpret the statute. The Court noted that reasonable assurences had to be made to address "adverse impacts" and not all impacts.
In Charlotte County et al v. IMC Phosphate et al, which involved the same permitting decision but different parties, the Court held that DEP did not violate Chapter 120 or due process by remanding the ALJ’s recommended order for additional findings regarding potential permit conditions. In effect, the DEP action allowed the applicant to add evidence regarding additional mitigation conditions that would allow the permit to be issued. The Court rejected the claims by Charlotte and Sarasota County that this action illegally gave IMC the opportunity to amend its application.
What is very interesting and critical in this decision is the Court’s recognition that under the permitting process, “The mining of phosphate is statutorily regulated, not because it is illegal, but rather to insure that the business may operate effectively without harming the public or the environment.” This is clearly true of almost any permitting process. The Court’s position is that this allows the agency to issue a permit under such terms as may comply with the statutory requirements, even if those terms are not all found in the initial application.
Critical to the decision was that DEP determined that the ALJ had misinterpreted and applied policy with the result that the relevant issues were not fully explored in the first hearing and order.
Charlotte County v. IMC Phosphate et al, 34 Fla. L. Weekly D357 (Fla. 2d DCA 2009)
In Peace River/Manasota Regional Water Supply Authority et al v. IMC Phosphate et al, the Court found that the users of waters below a proposed phosphate mine had standing to challenge the permit (well, duh). The Court also held that the DEP’s approach to dealing (or not dealing, from the petitioners' point of view) with cumulative impacts was legally justified, particularly by focusing on the statutory language regarding “adverse impacts” and the agency's authority to interpret the statute. The Court noted that reasonable assurences had to be made to address "adverse impacts" and not all impacts.
In Charlotte County et al v. IMC Phosphate et al, which involved the same permitting decision but different parties, the Court held that DEP did not violate Chapter 120 or due process by remanding the ALJ’s recommended order for additional findings regarding potential permit conditions. In effect, the DEP action allowed the applicant to add evidence regarding additional mitigation conditions that would allow the permit to be issued. The Court rejected the claims by Charlotte and Sarasota County that this action illegally gave IMC the opportunity to amend its application.
What is very interesting and critical in this decision is the Court’s recognition that under the permitting process, “The mining of phosphate is statutorily regulated, not because it is illegal, but rather to insure that the business may operate effectively without harming the public or the environment.” This is clearly true of almost any permitting process. The Court’s position is that this allows the agency to issue a permit under such terms as may comply with the statutory requirements, even if those terms are not all found in the initial application.
Critical to the decision was that DEP determined that the ALJ had misinterpreted and applied policy with the result that the relevant issues were not fully explored in the first hearing and order.
2d DCA – Building Permit Decisions are NOT Quasi-Judicial and Not Subject to Certiorari Review
City of St. Pete Beach and Ronald Holehouse v. Sowa, 4 So.3d 1245 (Fla. 2d DCA 2009)
The 2d DCA overtuned a circuit court decision that granted certiorari review of a decision of the building official to issue a building permit. The 2d DCA properly found that the building official’s decision was not quasi-judicial and therefore not subject to certiorari review. This should not be news to anyone (see, e.g. Pleasure II Adult Video v. City of Sarasota - directly on point), but attorneys not versed in land use law – and circuit courts – continue to screw it up.
Note – any declaratory action to challenge this decision will/should probably be dismissed for failure to exhaust administrative remedies that are provided by the Florida Building Code.
The 2d DCA overtuned a circuit court decision that granted certiorari review of a decision of the building official to issue a building permit. The 2d DCA properly found that the building official’s decision was not quasi-judicial and therefore not subject to certiorari review. This should not be news to anyone (see, e.g. Pleasure II Adult Video v. City of Sarasota - directly on point), but attorneys not versed in land use law – and circuit courts – continue to screw it up.
Note – any declaratory action to challenge this decision will/should probably be dismissed for failure to exhaust administrative remedies that are provided by the Florida Building Code.
2d DCA Rejects Ill-Considered Attack on School Funding Ordinance
Polk County Builder’s Ass’n et al v. Polk County, _34 Fla. L. Weekly D455 (Fla. 2d DCA 2009)
The Polk County Builders and allies challenged a local ordinance that helped fund class size reductions as being in conflict with the class size reduction amendment. It failed, predictably.
Note – there is a very significant issue as to whether and how to address the capital spending required by the class size amendment in impact fees and school concurrency. Having reviewed a few local school concurrency ordinances and plans, I suspect that most would not survive attack as an invalid impact fee or exaction – particularly after the new “burden shifting” bill (more on that later). But this case does not appear to have argued that issue in a way that the courts understood.
The Polk County Builders and allies challenged a local ordinance that helped fund class size reductions as being in conflict with the class size reduction amendment. It failed, predictably.
Note – there is a very significant issue as to whether and how to address the capital spending required by the class size amendment in impact fees and school concurrency. Having reviewed a few local school concurrency ordinances and plans, I suspect that most would not survive attack as an invalid impact fee or exaction – particularly after the new “burden shifting” bill (more on that later). But this case does not appear to have argued that issue in a way that the courts understood.
2d DCA Allows City to Maintain Appeal of Mooring Ordinance Prosecution
City of Marco Island v. Dumas, 34 Fla. L. Weekly D1015 (Fla. 2d DCA 2009)
Anti-cruiser, anti-liveaboard ordinances are a pet peeve of mine, having grown up living and cruising on boats. The City of Marco Island criminally prosecuted David Dumas for anchoring his boat within 300 feet of a residential property. (note – this is probably preempted under a recent statute). These types of ordinances implicate and generally violate the commerce clause of the US Constitution, which allows free navigation of all navigable waters of the United States, subject only to Congressional regulation.
So when prosecuted, Dumas filed a motion to dismiss based on the violation of the US Constitution and – not shocking – won the motion. The Court later dismissed the charge formally. The City appealed to circuit court, and Dumas claimed it was too late This turns into a question of when the order was final, and the 2d DCA agreed with the City.
Not that the City should win its appeal.
Anti-cruiser, anti-liveaboard ordinances are a pet peeve of mine, having grown up living and cruising on boats. The City of Marco Island criminally prosecuted David Dumas for anchoring his boat within 300 feet of a residential property. (note – this is probably preempted under a recent statute). These types of ordinances implicate and generally violate the commerce clause of the US Constitution, which allows free navigation of all navigable waters of the United States, subject only to Congressional regulation.
So when prosecuted, Dumas filed a motion to dismiss based on the violation of the US Constitution and – not shocking – won the motion. The Court later dismissed the charge formally. The City appealed to circuit court, and Dumas claimed it was too late This turns into a question of when the order was final, and the 2d DCA agreed with the City.
Not that the City should win its appeal.
1st DCA – Home Venue Can be Waived by Agencies
Levy County v. Diamond et al , 7 So.3d 564 (Fla. 1st DCA 2009)
The plaintiffs brought a takings case against the County, DEP and Bd of Trustees and filed (understandably, given the home venue rule) in Leon County. Levy County obtained waivers from the agencies and sought transfer of venue. The Plaintiff objected (probably wanting a Leon County jury – who wouldn’t have to pay for any taking claim prosecuted against Levy County), and the circuit court denied the County’s motion. The 1st DCA held that the DEP and Bd of Trustees of the Internal Improvement Trust Fund (aka, Governor and Cabinet) could waive the “home venue” right (which would require them to be sued in Leon County), and that when they did, the circuit court in Leon County abused its discretion in not transferring venue of an inverse condemnation suit involving property in Levy County to the circuit court in Levy County.
The plaintiffs brought a takings case against the County, DEP and Bd of Trustees and filed (understandably, given the home venue rule) in Leon County. Levy County obtained waivers from the agencies and sought transfer of venue. The Plaintiff objected (probably wanting a Leon County jury – who wouldn’t have to pay for any taking claim prosecuted against Levy County), and the circuit court denied the County’s motion. The 1st DCA held that the DEP and Bd of Trustees of the Internal Improvement Trust Fund (aka, Governor and Cabinet) could waive the “home venue” right (which would require them to be sued in Leon County), and that when they did, the circuit court in Leon County abused its discretion in not transferring venue of an inverse condemnation suit involving property in Levy County to the circuit court in Levy County.
1st DCA – Property Appraiser Must Consider Zoning Restrictions in Choosing Comparable Property for Valution
Carabelle Properties, LTD v. Pendleton et al, 34 Fla. L Weekly D800 (Fla. 1st DCA 2009)
The 1st DCA held that the circuit court was incorrect in approving a property valuation where the property appraiser did not comply with the applicable statute. The property appraiser had not properly considered land use restrictions applied to the golf course being appraised in determining the value of the property, and had considered other property that did not have the same restrictions in establishing comparable values.
The 1st DCA held that the circuit court was incorrect in approving a property valuation where the property appraiser did not comply with the applicable statute. The property appraiser had not properly considered land use restrictions applied to the golf course being appraised in determining the value of the property, and had considered other property that did not have the same restrictions in establishing comparable values.
1st DCA Clarifies Prior Opinion in Takings Case
Drake et al v. Walton County, 6 So.3d 717 (Fla. 1st DCA 2009)
The 1st DCA issued a clarifying opinion in this case clarifying that there were two different takings – a temporary taking and a later permanent taking – from the flooding of the property involved. The confusing facts are that the land was flooded, then made dry by drainage improvements and a dam installed by the County, then flooded again by later actions taken by the County, including removing the dam. Lesson: if the government creates private property, it must pay compensation if it later destroys that property.
The 1st DCA issued a clarifying opinion in this case clarifying that there were two different takings – a temporary taking and a later permanent taking – from the flooding of the property involved. The confusing facts are that the land was flooded, then made dry by drainage improvements and a dam installed by the County, then flooded again by later actions taken by the County, including removing the dam. Lesson: if the government creates private property, it must pay compensation if it later destroys that property.
1stDCA Totally Screws Up the Analysis in a Bert Harris Case – [but Probably Reaches the Right Result]
City of Jacksonville v. Coffield, 34 Fla. L. Weekly D704 (Fla. 1st DCA 2009)
Well, the headline’s not totally fair. The Court properly got that a successor landowner could maintain the suit – and they got the right result. But in the process, the Court totally screwed up the analysis.
The case involves the City of Jacksonville abandoning a public street to a private homeowner’s association- a process that is not the same as vacating the street. When the street was abandoned, the private HOA refused to allow and adjoining landowner access to it. The result of the HOA’s refusal to permit access was that the landowner was unable to proceed with an 8 lot subdivision of the adjoining land.
The landowner sued the City under the Bert Harris Act, claiming that the street abandonment inordinately burdened its “existing use” in the subdivision. Under the definitions in the Act, the subdivision would be an existing use if it was a “reasonably foreseeable, non-speculative land use, suitable for the real property, compatible with adjacent uses and that had raised the fair market value” of the land. Under one of the two tests for an inordinate burden under the Act, the land would be inordinately burdened if the owner was permanently unable to attain reasonable investment backed expectations. However, the Act applies only where the “specific action of a governmental entity” results in an in ordinate burden.
The problem here is that the Court totally confused the issues. It did not deal at all with the simple fact that the ultimate action that prevented the subdivision was not the abandonment of the street, but the HOA’s subsequent refusal to permit access. The court then got hung up on the fact that the abandonment was pending when the transaction was finalized , and held that the landowner could not have reasonable investment backed expectations where the action was known. Problem: this violates the US Supreme Court decision in Pallazzolo v. Rhode Island, where the Court held that a property owner’s RIBE are NOT automatically frustrated by the existence of a regulation when the property is acquired. See also the Florida case of Vatalaro v. DEP.
Further, the Court mixed up the impact of the reasonable investment backed expectation analysis, which applies only to one prong of the “inordinate burden” test, with the “reasonably foreseeable” analysis – which applies to whether the landowner could reasonably expect the use without the government action . The whole definition of a “reasonably foreseeable use” goes to the question of whether, immediately before the government act, the value of a particular use would be part of the valuation of the property – that is, whether the use would be included if the property were valued for eminent domain.
Practitioners need to focus on the clear distinguishing characteristic here: that the ultimate action was private, not governmental, and that the uses were not protected against that action.
Well, the headline’s not totally fair. The Court properly got that a successor landowner could maintain the suit – and they got the right result. But in the process, the Court totally screwed up the analysis.
The case involves the City of Jacksonville abandoning a public street to a private homeowner’s association- a process that is not the same as vacating the street. When the street was abandoned, the private HOA refused to allow and adjoining landowner access to it. The result of the HOA’s refusal to permit access was that the landowner was unable to proceed with an 8 lot subdivision of the adjoining land.
The landowner sued the City under the Bert Harris Act, claiming that the street abandonment inordinately burdened its “existing use” in the subdivision. Under the definitions in the Act, the subdivision would be an existing use if it was a “reasonably foreseeable, non-speculative land use, suitable for the real property, compatible with adjacent uses and that had raised the fair market value” of the land. Under one of the two tests for an inordinate burden under the Act, the land would be inordinately burdened if the owner was permanently unable to attain reasonable investment backed expectations. However, the Act applies only where the “specific action of a governmental entity” results in an in ordinate burden.
The problem here is that the Court totally confused the issues. It did not deal at all with the simple fact that the ultimate action that prevented the subdivision was not the abandonment of the street, but the HOA’s subsequent refusal to permit access. The court then got hung up on the fact that the abandonment was pending when the transaction was finalized , and held that the landowner could not have reasonable investment backed expectations where the action was known. Problem: this violates the US Supreme Court decision in Pallazzolo v. Rhode Island, where the Court held that a property owner’s RIBE are NOT automatically frustrated by the existence of a regulation when the property is acquired. See also the Florida case of Vatalaro v. DEP.
Further, the Court mixed up the impact of the reasonable investment backed expectation analysis, which applies only to one prong of the “inordinate burden” test, with the “reasonably foreseeable” analysis – which applies to whether the landowner could reasonably expect the use without the government action . The whole definition of a “reasonably foreseeable use” goes to the question of whether, immediately before the government act, the value of a particular use would be part of the valuation of the property – that is, whether the use would be included if the property were valued for eminent domain.
Practitioners need to focus on the clear distinguishing characteristic here: that the ultimate action was private, not governmental, and that the uses were not protected against that action.
1st DCA – High Density Condo Hotel Does not Violate Plan that Sets Residential but not Transient/Hotel/Motel/Temporary Density.
Bay County and Laguna Beach Properties, LLC v Harrison and West Beaches Neighborhood Defense Fund, Inc., 34 Fla. L. Weekly D1099 (Fla. 1st DCA 2009),
The 1st DCA overturned a trial court decision that found a 279 condo/hotel project that is a “resort condominium” under state law to violate a 15 dwelling unit per acre residential density found in the comprehensive plan (the site is about 2 acres). The 1st found that the units were not “dwelling units” and that the plan – unlike many – did not set a separate density for “dwelling units” and “transient” type units (including resort condominiums).
This is a fairly straightforward plan interpretation case on one hand, but on the other shows that the 1st DCA still looks at the interpretation of comp plans with more acuity than almost any other district.
The 1st DCA overturned a trial court decision that found a 279 condo/hotel project that is a “resort condominium” under state law to violate a 15 dwelling unit per acre residential density found in the comprehensive plan (the site is about 2 acres). The 1st found that the units were not “dwelling units” and that the plan – unlike many – did not set a separate density for “dwelling units” and “transient” type units (including resort condominiums).
This is a fairly straightforward plan interpretation case on one hand, but on the other shows that the 1st DCA still looks at the interpretation of comp plans with more acuity than almost any other district.
1st DCA Dismisses Attack on Affordable Housing Ordinance for Lack of Standing
Fla. ome Builders, Inc. et al v. City of Tallahassee, 34 Fla. L. Weekly D1096
An individual, a homebuilder with an affected project, and a group of industry representatives filed a declaratory action against Tallahassee’s affordable housing (forced inclusionary zoning) ordinance. The trial court upheld the ordinance.
The individual had been found not to have standing and did not appeal. The affected builder had separately announced its intention to abandon its project, though how this become part of the record is not stated. The 1st then found that the record was insufficient to allow the Florida Home Builders and Leon County Builders to have standing because the record did not disclose how a significant number of their members might be affected.
This is a very disturbing ruling and clearly portends more contentious litigation over these types of issues in the future. Landowners and builders should have standing to challenge these ordinances BEFORE they are faced with a denial for refusing to include affordable housing that the government is trying to extract from them. Creating standing barriers for the organizations that represent them puts an unfair burden on individual builders.
This only invites more legislation like this year’s impact fee statute.
An individual, a homebuilder with an affected project, and a group of industry representatives filed a declaratory action against Tallahassee’s affordable housing (forced inclusionary zoning) ordinance. The trial court upheld the ordinance.
The individual had been found not to have standing and did not appeal. The affected builder had separately announced its intention to abandon its project, though how this become part of the record is not stated. The 1st then found that the record was insufficient to allow the Florida Home Builders and Leon County Builders to have standing because the record did not disclose how a significant number of their members might be affected.
This is a very disturbing ruling and clearly portends more contentious litigation over these types of issues in the future. Landowners and builders should have standing to challenge these ordinances BEFORE they are faced with a denial for refusing to include affordable housing that the government is trying to extract from them. Creating standing barriers for the organizations that represent them puts an unfair burden on individual builders.
This only invites more legislation like this year’s impact fee statute.
1st DCA Remands Fee Award in Non-Meritorious Comp Plan Challenge for Additional Findings
Brown v. Panhandle Citizen’s Coalition et al,
The court found that the ALJ’s opinion awarding fees was “well reasoned” in a case where a plan amendment was challenged, but that it lacked sufficient findings regarding the number, reasonableness and value of the fees expended, so the Court “reluctantly” remanded.
The court found that the ALJ’s opinion awarding fees was “well reasoned” in a case where a plan amendment was challenged, but that it lacked sufficient findings regarding the number, reasonableness and value of the fees expended, so the Court “reluctantly” remanded.
3d DCA Finds Reverse Spot Zoning to Maintain Stormwater Benefits to Neighbors Violates Essential Requirements of Law
Richard Road Estates v. Miami Dade County Bd of County Commr’s,2 So.3d 1117 (Fla. 3d DCA 2009)
Ok, the 3d DCA continues to confound. Here, a panel of the Court, with Judge Schwartz writing the opinion, overturned the County Commission’s denial of a rezoning from an ag zone district (one per 5 acres) to an estate district (one per acre). The Court found that not only was there “reverse spot zoning” because all the surrounding property was zoned estate, but also found that the record established that the rezoning was denied because the property has, over time, been used by the surround properties as the dumping ground for their stormwater runoff.
The court finds that is an unconstitutional and improper basis to deny a rezoning, and that the circuit court’s acceptance of that rationale resulted in a miscarriage of justice. Probably the best quote in the opinion is one that too many courts should consider. It’s buried in a footnote: “it may be observed that in this case, as probably in every case, what seems (because it is) unfair also turns out to be wrong.”
Ok, the 3d DCA continues to confound. Here, a panel of the Court, with Judge Schwartz writing the opinion, overturned the County Commission’s denial of a rezoning from an ag zone district (one per 5 acres) to an estate district (one per acre). The Court found that not only was there “reverse spot zoning” because all the surrounding property was zoned estate, but also found that the record established that the rezoning was denied because the property has, over time, been used by the surround properties as the dumping ground for their stormwater runoff.
The court finds that is an unconstitutional and improper basis to deny a rezoning, and that the circuit court’s acceptance of that rationale resulted in a miscarriage of justice. Probably the best quote in the opinion is one that too many courts should consider. It’s buried in a footnote: “it may be observed that in this case, as probably in every case, what seems (because it is) unfair also turns out to be wrong.”
Tuesday, June 16, 2009
U.S. Supreme Court to Hear Save Our Beaches
On June 15, the Supreme Court accepted jurisdiction over Stop the Beach Renourishment/Save Our Beaches, here's a link to the reporting page.
Sunday, February 01, 2009
5th DCA - Landmark Takings Case: Off Site Exaction a Taking under Nollan/Dolan Where Applicant Refused Permit Due to Condition
This one came out in early January, and I'm surprised that I didn't hear the gnashing of teeth in Palatka all the way down here in Sarasota.
In what is now pretty much an epic, decade long battle, the 5th DCA in St Johns Water Management District v. Koontz, handed the water management district a major defeat and, in the process, put all government entities on notice that predatory exaction policies may create takings liability.
In the very short version, the water management district conditioned a permit for Koontz property to require significant off-site mitigation in the form of improving drainage facilities. The mitigation was supposedly to offset impacts to a small portion of the property that is within a "Riparian Habitat Protection Zone". Koontz refused to accept the condition, and the District denied the permit.
I don't think a short recap can do the facts justice; you have to read the case - and the four other opinions that have been generated on the way. The long and the short of it is that the circuit court didn't buy that the off site exaction was in any way rationally related to any demonstrable impacts to the protected property, and found that that the exaction violated the Nolan/Dolan nexus and was therefore not just an unconstitutional condition, but one that resulted in a taking of Koontz' property.
The District appears to have had three arguments: First, that the Nollan/Dolan rule didn't apply because (1) only money, not land, was involved, and (2) the exaction was offsite. The court pretty quickly (and I think correctly) did away with that argument.
The second claim was that Koontz couldn't complain because he refused the permit. This took a little longer to address, and its the part that everyone needs to read very carefully.
The third argument went something like "we could have denied the permit anyway, so there wasn't any damages." This took the court a long time to address, and completely got the dissent tangled up. The majority held, in effect, that once the government put the demand on the table, it was stuck with it. But the court got tangled up in the "right to the permit" argument in a way that reflects wrong thinking.
Everyone seems to have taken the position that the District could have denied the permit and there would have been no issue; that Koontz had "no right to the permit." But that's not really true. In Florida, there's a right to use property in any lawful manner. When the government adopts regulations and requires permits, it does not remove the underlying right - it subjects it to regulation. That is, the existence of regulations on the use of land does NOT convert the right to use land into a license from the government - something that the landowner is allowed to do by the grace of the government.
So while it's one thing to suggest that a property owner must demonstrate compliance with regulations, it's another thing altogether to suggest that a local government or agency has the right to simply deny permits where the criteria are otherwise met. And if the criteria are not met, the government really has an obligation to be able to state specifically why not, so that the landowner can comply.
Recognition of this fundamental aspect of the regulation of land might have saved both the majority and the dissent a great deal of confusion and circular logic.
And to anyone who thinks this opinion goes way too far, I suggest you read the other Koontz opinons to get a flavor for what the District has been demanding and the fact that it has been held repeatedly to be unjustified - this history plays out what would happen in many concurrency and environmental exaction cases if the landowner had the time and money to keep fighting.
IMPLICATIONS:
This case has huge and immediate implications for every land use permitting process, especially those where the local government routinely extracts commitments far in excess of what would legally be proper in order.
But perhaps most important, this may discipline the "concurrency moritoria" extortion racket that many local governments have been practicing. Core issue: many local governments have adopted levels of service - particularly for roads- that they cannot maintain and achieve based on the adopted CIP (which now should be "financially feasible" meaning that LOS's will be met - but they are not). This creates "concurrency moratoria" - areas where the planned improvements in the 5 year (or long range) CIP don't create enough capacity to allow development that is otherwise consistent with the comp plan and LDRs to be approved.
After this decision, any local government that has been doing that - or does it in the future- is at significant risk. Back in the early 90's, everyone was convinced that this risk would be from "temporary concurrency moratoria" under a combination of Lucas and First English. Now, they're back under Nolan/Dollan and the clear over-reaching of the government.
In what is now pretty much an epic, decade long battle, the 5th DCA in St Johns Water Management District v. Koontz, handed the water management district a major defeat and, in the process, put all government entities on notice that predatory exaction policies may create takings liability.
In the very short version, the water management district conditioned a permit for Koontz property to require significant off-site mitigation in the form of improving drainage facilities. The mitigation was supposedly to offset impacts to a small portion of the property that is within a "Riparian Habitat Protection Zone". Koontz refused to accept the condition, and the District denied the permit.
I don't think a short recap can do the facts justice; you have to read the case - and the four other opinions that have been generated on the way. The long and the short of it is that the circuit court didn't buy that the off site exaction was in any way rationally related to any demonstrable impacts to the protected property, and found that that the exaction violated the Nolan/Dolan nexus and was therefore not just an unconstitutional condition, but one that resulted in a taking of Koontz' property.
The District appears to have had three arguments: First, that the Nollan/Dolan rule didn't apply because (1) only money, not land, was involved, and (2) the exaction was offsite. The court pretty quickly (and I think correctly) did away with that argument.
The second claim was that Koontz couldn't complain because he refused the permit. This took a little longer to address, and its the part that everyone needs to read very carefully.
The third argument went something like "we could have denied the permit anyway, so there wasn't any damages." This took the court a long time to address, and completely got the dissent tangled up. The majority held, in effect, that once the government put the demand on the table, it was stuck with it. But the court got tangled up in the "right to the permit" argument in a way that reflects wrong thinking.
Everyone seems to have taken the position that the District could have denied the permit and there would have been no issue; that Koontz had "no right to the permit." But that's not really true. In Florida, there's a right to use property in any lawful manner. When the government adopts regulations and requires permits, it does not remove the underlying right - it subjects it to regulation. That is, the existence of regulations on the use of land does NOT convert the right to use land into a license from the government - something that the landowner is allowed to do by the grace of the government.
So while it's one thing to suggest that a property owner must demonstrate compliance with regulations, it's another thing altogether to suggest that a local government or agency has the right to simply deny permits where the criteria are otherwise met. And if the criteria are not met, the government really has an obligation to be able to state specifically why not, so that the landowner can comply.
Recognition of this fundamental aspect of the regulation of land might have saved both the majority and the dissent a great deal of confusion and circular logic.
And to anyone who thinks this opinion goes way too far, I suggest you read the other Koontz opinons to get a flavor for what the District has been demanding and the fact that it has been held repeatedly to be unjustified - this history plays out what would happen in many concurrency and environmental exaction cases if the landowner had the time and money to keep fighting.
IMPLICATIONS:
This case has huge and immediate implications for every land use permitting process, especially those where the local government routinely extracts commitments far in excess of what would legally be proper in order.
But perhaps most important, this may discipline the "concurrency moritoria" extortion racket that many local governments have been practicing. Core issue: many local governments have adopted levels of service - particularly for roads- that they cannot maintain and achieve based on the adopted CIP (which now should be "financially feasible" meaning that LOS's will be met - but they are not). This creates "concurrency moratoria" - areas where the planned improvements in the 5 year (or long range) CIP don't create enough capacity to allow development that is otherwise consistent with the comp plan and LDRs to be approved.
The concurrency management system itself generates and proves the "demand" for the excessive exaction - the ordinances already say that the development can't be approved without concurrency, and the concurrency system requires a proportionate share or development agreement that provides all the improvements needed, whether or not it's proportionate.
And most governments have not adopted "proportionate share" concurrency regulations that address it and guarantee that the development only has to pay a proportionate share of the needed improvements. Lots of reasons, but mostly that they want to create a moratorium and address it through - ta dah - a development agreement or a condition in a development approval that requires the developer to pay more than a proportionate or fair share.After this decision, any local government that has been doing that - or does it in the future- is at significant risk. Back in the early 90's, everyone was convinced that this risk would be from "temporary concurrency moratoria" under a combination of Lucas and First English. Now, they're back under Nolan/Dollan and the clear over-reaching of the government.
Different case, same "facial vs as applied" problem
In Shands et al v. City of Marathon, the 3d DCA applied the same mistaken analysis to a takings claim against the city, under facts that provide an additional twist.
That twist is that the landowners didn't start the rights determination process till later, and got caught up further when the City incorporated and adopted and amended the County's land use regulations.
I think there may some different defenses and issues than were presented in the Monroe case ---- in particular, what happens if property is subjected to a limitation by one government agency or local government, then the same restriction is reapplied by another jurisdiction - does a new cause of action get created? But that question is totally buried in the larger mistake regarding facial vs as applied challenges.
That twist is that the landowners didn't start the rights determination process till later, and got caught up further when the City incorporated and adopted and amended the County's land use regulations.
I think there may some different defenses and issues than were presented in the Monroe case ---- in particular, what happens if property is subjected to a limitation by one government agency or local government, then the same restriction is reapplied by another jurisdiction - does a new cause of action get created? But that question is totally buried in the larger mistake regarding facial vs as applied challenges.
3d DCA gets Right Result but Wrong Analysis in Facial v As Applied Taking Case
In Collins et al v Monroe County, the 3d DCA absolutely correctly overturned a trial court decision on summary judgment that held that a takings challenge was a "facial challenge" and was untimely filed based on the 4 year statute of limitations.
The problem is that in the process, the court totally mangled the difference between a "categorical" taking and an "balancing test" taking, confusing them with facial vs. as applied takings. The Court held that a challenge based on the deprivation of "all economic use" of the property was a facial taking and would be subject to the four year statute from the time of adoption, but that these were claims of substantial deprivation of value and the time ran from the final application:
The problem is that in the process, the court totally mangled the difference between a "categorical" taking and an "balancing test" taking, confusing them with facial vs. as applied takings. The Court held that a challenge based on the deprivation of "all economic use" of the property was a facial taking and would be subject to the four year statute from the time of adoption, but that these were claims of substantial deprivation of value and the time ran from the final application:
In an as-applied claim, the landowner challenges the regulation in the
context of a concrete controversy specifically regarding the impact of the
regulation on a particular parcel of property. Taylor, 659 So. 2d at 1167. The
standard of proof for an as-applied taking is whether there has been a
substantial deprivation of economic use or reasonable investment-backed
expectations. See generally Penn Central Transp. v. City of New York, 438 U.S.
104 (1978) (considering the economic impact of the regulation on the claimant,
the extent to which the regulation has interfered with distinct investment-backed expectations, and the character of the government action; diminution in the property value alone cannot establish a taking); Taylor, 659 So. 2d at 1167. The question presented is whether the record shows that the Landowners were deprived by the enactment of the 2010 Comprehensive Plan of all economic use of their property, which amounts to a facial taking, or were deprived of substantial use of their property, but left with some economic value, which is an as-applied taking.
Emphasis added.
The problem is that the court's analysis here is totally wrong: a "categorical" Lucas-type claim that a regulation has deprived the landowner of all economic use is almost never a facial claim, nor can it be under the ripeness requirements that the Court discusses later in the opinion.
Here, the application of Monroe County's comp plan and ldr was at issue. On their face, they preclude development in huge areas of the county and require compliance with strict "rate of growth" requirements that preclude even individual building permits for existing lots. But the ordinance has an entire administrative process for both vested rights and for what amounts to an administrative determination that a taking will occur if rights aren't given, with recommendations to either grant a permit or buy the property.
With particular respect to the whole Monroe County regulatory scheme, courts have held that the availability of this remedy precludes takings claims until or unless the process is followed. They also have held that no temporary or permanent taking can occur until after the completion of the process. So the ripeness and other doctrines effectively preclude a facial challenge to the ordinances (and most land use lawyers knew this) .
The core distinctions are categorical takings, which do not require a demonstration of the value of the property taken or remaining in order to demonstrate the taking, and "balancing" type tests where the financial or economic impact must be assessed against the property as a whole.
Which then gets you to the different sub-causes of action under a takings theory:
1. Illegal conditions (Nollan/Dolan) on a development permit or application that require an exaction. This clearly requires a property-specific application, but it is a categorical type taking in that if the exaction is not proportional to the impacts created, it is a taking regardless of the effects on the value of the property as a whole However, the essence of this claim is that the government assessed the exaction against a particular proposal, so it is always as-applied.
- Note these distinctions were behind the whole highway reservation as a takings fight in the early 90s. One decision held that the reservation statute, which prohibited all development within reservation areas designated next to state roads, was unconstitutional because it "took" property (the right to use the reserved area) without making any provision for compensation. Later cases clarified that even if such statutes are unconstitutional, there are not actual "takings" of property until or unless the reservation is applied to a particular property so as to deny particular uses and the government refuses to either vary the prohibition or pay compensation.
2. Illegal violation of the right to exclude/imposed right to use (Loretto Teleprompter) - an ordinance or statute that allows another person or the government to use your property (like to hang cable television) is a forced grant of easement or license - this is a "categorical" taking in that it doesn't require a demonstration of the value of the right 'taken' or the remaining rights in the property. However, there is not taking until someone takes advantage of the ordinance or statute, so it almost always an as-applied claim.
3. The Lucas case: total taking of all economic use . This is a "categorical" taking because if all use is removed, the relative burden is irrelevant, but it is an as-applied test. If a regulation prevents ANY use of property, it is a taking. However, in almost any conceivable situation in order to prove that it does that, a landowner would have to apply to use the property and be denied, or to try to get some administrative determination of rights (as here) and be told there are none. So ripeness and damages issues almost always will make this an as-applied challenge.
The big and still unresolved issue in these cases has to do with "use" versus "non-use" value: what if all use is prohibited, but the land has some use to someone other than the owner, perhaps as open space, or as a beach access, or some other function that is totally accessory to a separate parcel. Under the strict language of Lucas, and one critical footnote, the focus is on the value created by the use of the property by the owner, and the potential for some value to the property in its sale or passive use by another would not count. But that isn't followed in a number of cases.
4. Penn Central Balancing -- This is the general and difficult case where there are some uses left to a property, but they are significantly limited in a way that so limits "legitimate, investment backed expectations" so as to create a taking (along with several other considerations described in the opinion). It always is an "as applied" challenge, because it is the particular effect of the regulation on the particular facts of the property and expectations of the owner that are at issue.
The 3d DCA opinion is simply mind-blowingly wrong and perverse: if you claim that an ordinance deprives you of all economic use, you can only raise that within four years of adoption, even if you haven't actually had it applied to your property so you can prove it.
This opinion would create a situation where the government was better off getting someone into the application process and then - four years later- adopting an interpretation that the owner couldn't use the property at all than if the government allowed some (but not much) use of the property.
One can only hope that this will get corrected, and quickly.
3d DCA - "Side" Interpretation of Code Not Separately Reveiwable
In City of Sunny Isles Beach v. Publix, the 3d DCA continued its apparent quest to tell the appellate division of Dade County never to side with a landowner or developer on a land development code issue.
The 3d issued a writ of prohibition preventing the circuit court from hearing a declaratory action brought by Publix against a written interpretation of the local zoning code by the city attorney. The code provided NO local administrative appeal of such a decision.
The 3d granted prohibition on the grounds that the opinion was used in the city commission's denial of Publix's site plan, and that decision was being reviewed by certiorari, so that would be the only review under the rubric that there is no judicial remedy until administrative remedies are exhausted.
Well, all very nice, but the bottom line is that cert review of the denial doesn't get fair review of the issue, for several reasons:
1. If there's any other basis to justify the denial, there's no review of that legal opinion or error.
2. The standard of review at that point is totally unclear because cert review is not to determine "mere legal error" but only "gross" errors that are fundamental (at least when a landowner is seeking review; when it's the government, any error appears to be fundamental in the 3d). Pile on top of that the unclear status of how much discretion to give the local interpretation, and you get a situation where the decision would not be overturned unless there was a finding in the order that flatly contradicted the ordinance AND it was clear from the order that the erroneous construction was the sole reason for the denial.
3 Then throw on top of this the "miscarriage of justice" standard, which was originally added to the 2d tier review standards to indicate further the kind of discretion there is in the discretionary review, but which shows up frequently in circuit court cert opinions.
The upshot is that the issue doesn't actually get resolved and determined. The city will win the cert petition and then claim that this vindicates the interpretation. Which it doesn't and can't.
Which gets to the really interesting problem: a circuit court's review of a local decision really can't be taken as "stare decisis" regarding any interpretation of a local ordinance involved for the simple reason that the court isn't determining whether the interpretation was right or wrong, it's whether it was so totally illegal as applied to particular facts that it created a miscarriage of justice.
Which in turn means that there is no real means in Florida today (and certainly in the 3d District, based on this opinion) to get a full and fair determination of the meaning of local zoning and environmental regulations. Back to the need for a statutory remedy for the review of local ordinances and decisions.
The 3d issued a writ of prohibition preventing the circuit court from hearing a declaratory action brought by Publix against a written interpretation of the local zoning code by the city attorney. The code provided NO local administrative appeal of such a decision.
The 3d granted prohibition on the grounds that the opinion was used in the city commission's denial of Publix's site plan, and that decision was being reviewed by certiorari, so that would be the only review under the rubric that there is no judicial remedy until administrative remedies are exhausted.
Well, all very nice, but the bottom line is that cert review of the denial doesn't get fair review of the issue, for several reasons:
1. If there's any other basis to justify the denial, there's no review of that legal opinion or error.
2. The standard of review at that point is totally unclear because cert review is not to determine "mere legal error" but only "gross" errors that are fundamental (at least when a landowner is seeking review; when it's the government, any error appears to be fundamental in the 3d). Pile on top of that the unclear status of how much discretion to give the local interpretation, and you get a situation where the decision would not be overturned unless there was a finding in the order that flatly contradicted the ordinance AND it was clear from the order that the erroneous construction was the sole reason for the denial.
3 Then throw on top of this the "miscarriage of justice" standard, which was originally added to the 2d tier review standards to indicate further the kind of discretion there is in the discretionary review, but which shows up frequently in circuit court cert opinions.
The upshot is that the issue doesn't actually get resolved and determined. The city will win the cert petition and then claim that this vindicates the interpretation. Which it doesn't and can't.
Which gets to the really interesting problem: a circuit court's review of a local decision really can't be taken as "stare decisis" regarding any interpretation of a local ordinance involved for the simple reason that the court isn't determining whether the interpretation was right or wrong, it's whether it was so totally illegal as applied to particular facts that it created a miscarriage of justice.
Which in turn means that there is no real means in Florida today (and certainly in the 3d District, based on this opinion) to get a full and fair determination of the meaning of local zoning and environmental regulations. Back to the need for a statutory remedy for the review of local ordinances and decisions.
Code Enforcement and the Fact Not Discussed
In City of Miami v. Cortez, the 3d District overturned a circuit court decision in an appeal of a code enforcement board "mitigation order."
The 3d found that the circuit court failed to comport with the essential requirements of law. It found that any objections to the testimony in the mitigation hearing were not preserved, and that due process had been followed.
Here's how the 3d characterized the background facts:
The 3d quashed the decision of the circuit court.
However, it's clear to me that the 3d didn't include the truly relevant facts or address the real due process problem.
I suspect that the owners thought that they had fixed the problem and were shocked that fines were still accruing - this happens ALL THE TIME in these cases. The issue is that these orders end up creating "running fines" and (I think unconstitutionally) put the burden of proof on the owners to demonstrate that the violation no longer exists. Once an order imposing fines is issued, the local governments claim that they are under no further obligation to investigate or to determine whether a violation continues.
When the violation is for work without a permit, the violation generally isn't fixed until a permit is issued, any remedial work is done, and the work is inspected and signed off. This creates a situation where the local government can leave a person in violation by delaying permit decisions or imposing improper conditions, by finding inconsequential problems in the inspection, or by not inspecting. And by not notifying the code enforcement people when the inspection is done.
It's quite possible under the fact here that the property owners in fact got a permit and did anything else they needed to do within the 60 day window, but that the inspections were delayed and then even after the inspection the fines were accruing.
I would argue strongly that if that is the case, then the code enforcement statute is being administered unconstitutionally. I KNOW that this happens every day.
And I'm having to speculate because the opinion in this case is so devoid of the truly relevant facts, but I suspect that this is what the owners showed to the circuit court. So, did the 3d District get it wrong? We really can't tell because the opinion doesn't give use the rel event facts.
LESSON: If a client gets into code enforcement problems, get in the board's face and start objecting to EVERYTHING from the first hearing. Object that the hearings violate due process because the written guidelines are inadequate or lacking; demand rulings on right to cross examine; object to every piece of written evidence that is offered (most of it is hearsay, lots of it is inadmissible). Object to the local ordinance if you can. And demand very specific findings from the Board or Special Magistrate regarding EXACTLY what actions need to be taken to correct the violation. And then appeal the VERY FIRST determination (the "violation" determination).
If it gets to a "penalty" hearing, make the same objections. Then enter evidence on the "four factors" in the section 162.09 regarding the amount of penalty.
The code enforcement system has turned into a maze of abusive traps because the processes are badly written, badly administered, and almost always applied against unrepresented respondents.
The 3d found that the circuit court failed to comport with the essential requirements of law. It found that any objections to the testimony in the mitigation hearing were not preserved, and that due process had been followed.
Here's how the 3d characterized the background facts:
On October 3, 2003, the City’s Code Enforcement Board ("Board") held a hearing
where property owner Amado Sabina pled guilty to a code violation for
performance of work on a residential property without a final permit. The Board
entered an enforcement order on October 10, 2003. Property owners Sabina and
Eumelia Cortes were afforded 60 days to correct the violation or face a fine of
$250 per day.
The property owners failed to correct the violations
and fines totaling $105,750 were assessed. On June 2, 2005, the Board held a
mitigation hearing to determine whether to reduce the amount of the fines
accrued. All of the witnesses at the hearing were duly sworn. At the conclusion
of that hearing, the Board reduced the fine to $10,000 and entered a mitigation
order.
The property owners appealed the mitigation order to the appellate
division of the circuit court, arguing that the mitigation order should be set
aside because the city inspector had improperly delayed inspection for a period
of six months. However the Board had already accepted this argument in reducing
the fine to $10,000. The appellate division nonetheless reversed both the
enforcement and mitigation orders.
The 3d quashed the decision of the circuit court.
However, it's clear to me that the 3d didn't include the truly relevant facts or address the real due process problem.
I suspect that the owners thought that they had fixed the problem and were shocked that fines were still accruing - this happens ALL THE TIME in these cases. The issue is that these orders end up creating "running fines" and (I think unconstitutionally) put the burden of proof on the owners to demonstrate that the violation no longer exists. Once an order imposing fines is issued, the local governments claim that they are under no further obligation to investigate or to determine whether a violation continues.
When the violation is for work without a permit, the violation generally isn't fixed until a permit is issued, any remedial work is done, and the work is inspected and signed off. This creates a situation where the local government can leave a person in violation by delaying permit decisions or imposing improper conditions, by finding inconsequential problems in the inspection, or by not inspecting. And by not notifying the code enforcement people when the inspection is done.
It's quite possible under the fact here that the property owners in fact got a permit and did anything else they needed to do within the 60 day window, but that the inspections were delayed and then even after the inspection the fines were accruing.
I would argue strongly that if that is the case, then the code enforcement statute is being administered unconstitutionally. I KNOW that this happens every day.
And I'm having to speculate because the opinion in this case is so devoid of the truly relevant facts, but I suspect that this is what the owners showed to the circuit court. So, did the 3d District get it wrong? We really can't tell because the opinion doesn't give use the rel event facts.
LESSON: If a client gets into code enforcement problems, get in the board's face and start objecting to EVERYTHING from the first hearing. Object that the hearings violate due process because the written guidelines are inadequate or lacking; demand rulings on right to cross examine; object to every piece of written evidence that is offered (most of it is hearsay, lots of it is inadmissible). Object to the local ordinance if you can. And demand very specific findings from the Board or Special Magistrate regarding EXACTLY what actions need to be taken to correct the violation. And then appeal the VERY FIRST determination (the "violation" determination).
If it gets to a "penalty" hearing, make the same objections. Then enter evidence on the "four factors" in the section 162.09 regarding the amount of penalty.
The code enforcement system has turned into a maze of abusive traps because the processes are badly written, badly administered, and almost always applied against unrepresented respondents.
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