Monday, July 06, 2009

Updates Underway - Sorry for Being Gone So Long!

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!

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.”