Sunday, August 14, 2011

Fourth DCA Inexplicably Holds that Plat Approval is Not A Development Order - Then Reverses Itself on Reconsideration

In Graves v. City of Pompano Beach,  the Fourth District Court first held that a plat approval was not a “development order” subject to challenge under    § 163.3215.  The opinion, which is inconsistent with other opinions and I believed applies an incorrect rule of statutory interpretation, holds that an application for a plat approval does not meet the definition of a development permit.

A “development permit” is defined in § 163.3164, to include “. . . any bulding permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local governing having the effect of permitting the development of land.”  The court held because a plat does not (in and of itself) authorize “development” as that term is defined in the statute, it is not a development order.

Not only does this opinion misapply the “trailing comma” rule by applying the last modifier to the entire set, but it is also contrary to prior opinions and the clear intent of the statute.  Under this case, the ONLY development permits that would be subject to challenge under 163.3215 would be earth moving permits, final plats (approving utilities, etc),  and building permits. I cannot see how the the attorneys for the developer and the City could argue this interpretation with any clear professional conscience. 

On rehearing, the Court entered a new opinion.  The Court reversed its initial position, and found that the action was in fact a “development order” subject to challenge under § 163.3215.  The opinion on rehearing found that “section 163.3215 does not suggest that a development order is one which grants development rights only in the advanced stages of the development process or to a shovel-ready project.”  The dissent clung to the idea that a “plat approval” is not covered by the list of permit types in § 163.3164’s definition of development permit, and that it does not “permit the development of land.”  The dissent ignored the fact that a “plat approval” is a “subdivision approval” by another name.

Fourth DCA overturns mining permit as inconsistent with Plan

In 1000 Friends of Fla. v. Palm Beach County et al, the Fourth District adopted a strict interpretation of the term "only" in a plan policy and overturned the circuit court's decision that a mining permit was consistent with the policy.

The policy permits mining in a certain areas "only" for public road building, agricultural and water management purposes.  While the FDOT was the primary intended customer, the development order did not restrict the sale of mined aggregate for the stated uses, but only required annual reporting of sales and customers.  There was deposition and trial testimony that the company could not track the use to which sold aggregate was put.   Based on that, the 4th District held that the permit was inconsistent with the plain language of the policy and also reaffirmed that reviewing courts do not have to give deference to local government interpretations of their plans.

I am sure that this is not the last we'll hear of this matter.  These mines have significant strategic importance because they would produce high-quality aggregate needed for highway construction and the nearest alternative sources (in the Dade County lakes belt) may be shut down on federal permitting issues.  The other major south Florida source is in Lee County - but there the County Commission is waging war on aggregate producers and trying to prevent any new aggregate mines through aggressive comp plan policies and land development regulations.

So, the policy will be rewritten and adopted without the restrictive provisions, we'll have another fight, and if the lack of permitting will affect major road construction, I predict we'll get legislation next year that preempts local comprehensive plans and regulations of strategic aggregate mining operations.

Tuesday, May 17, 2011

Engrossed verion of HB 7207

Here's a link to the final, engrossed version of the Growth Managment Act bill that will go to the Governor.

Wednesday, May 11, 2011

More bills on their way to the Governor

Ok, no analysis here, but I've identified a number of bills of interest (well, maybe) to land use practitioners that passed both houses and are on their way to the governor.  I've tried to provide links to the PDF versions of the enrolled bills; they are from the Senate site (even for the House bills), which is a little easier to use.

In no particular order:

My favorite -- Bill that reenacts the burden/standard of proof in impact fee cases from the 2009 legislation.

Bill that clarifies (probably expands) the scope of the Ag exemption for stormwater management and wetland permitting.  I think this is an outgrowth of the Duda Ranch case from last year.

Bill that limits building official's authority to require inspections of residential structures when a permit is requested for other structures on the same site.   There MUST be a horror story behind this one.

Bill addressing affordable housing agencies, trust funds AND GMA requirements in 163.3177.   The planning aspects seem benign; I can't tell about the rest.

Bill addressing substantive and procedural issues with the Florida Building Code.    This includes some things that look complicated with respect to the adoption of national codes and standards.

The "Vacation Rentals" Bill.   The preemption only applies to new regulations and frankly I don't know if the langauge actually prevents a local government from requiring vacation rentals to be in commercial zone districts.

Inside this Bill that requires e-filing by state attorneys and public defenders is a new requirement for attorneys to file all petitions and pleading with DOAH electronically

I'm sure that there are other fun bills that I've missed - let me know your favorites.


Monday, May 09, 2011

Ah, DCA, we hardly knew ye

Here's a  link to the bill that will transfer DCA's community planning functions (among others) to the "Department of Economic Opportunity."    The Florida Building Commission goes to DPBR.  Emergency Management (and the scary powers of FEMA, etc.) go to the Office of the Governor.   There is a "transition period" until October 1 to accomplish the mass transfer of functions (and, presumably, to spend all the supposedly saved tax funds on new business cards and letterhead).

I can't even bring myself to comment.   Everybody pray that we don't get a major hurricane this year.

Major amendments to the Growth Management Act

Wow.   Major amendments to the Growth Management Act were apparently adopted by the Legislature on Friday, at the tail end of the session.    It's over 300 pages, so analysis will have to wait.

Here's a link to the bill, (HB 7207).
Behind the scenes, there was major confusion on Thursday.   The House had adopted a version of the bill two weeks ago (HB 7129).  It was in a Senate Committee, along with a complete amendment from Bennett that (apparently) represented the consensus of what should pass.  However, Bennett's own bill was also waiting for action by the entire body, with a separate set of amendments that were similar but not the same.   On Thursday, the Senate took up Bennett's bill, passed the amendments and approved the amended bill.  Someone then realized that the Senate had in effect passed the wrong bill. 

On Friday, a conference committed report on a different bill was brought forward which had all of the agreed on language (that was also sitting in the Senate committee as the amendment to HB 7129).  The House passed, it, and then the Senate passed it as well. 

Given the other fights between the House and Senate on Friday, this demonstrates a significant amount of consensus.

Sunday, May 08, 2011

Irony - Legislature Passes Unnecessary "Savings Bill"

On April 27, the Governor signed Chapter 2011-14, effective immediately.  That bill was almost entirely directed at saving the 2009 amendments to the GMA, which had been invalidated for imposing a mandate to amend plans on local governments.  Here's a link to the Chapter law.     On May 2d, the 1st DCA overturned the circuit court decision invalidating the 2009 Legislation -  here's the link.    The court's ruling was based on its determination that the Plaintiffs named the wrong defendants and failed to name the correct defendant - the state land planning agency.   Irony, indeed.

I believe that any issues from the 2009 legislation not dealt with in the "savings bill" have been addressed in the later growth management act amendments.

Legislation 1 - Bert Harris Act amendments

Some (relatively) minor amendments to the Bert Harris were passed.  Clarifies the definition (structurally) of an "existing use," shortens the time for the government to provide the "ripeness"/settlement alternatives and clarifies language about that provision, clarifies the waiver of soveriegn immunity and - most importantly- mostly undoes the Hall's River case holdings on the "application" of a statute, rule or ordinance. 

Attached is  a link to the bill text that went through the House and Senate and was enrolled by the House.  I believe that the Senate's final version was the House's version and the bill will go to the Governor.

Sunday, January 23, 2011

1st DCA - ALJ/Admin Comm'n Misapplied Law and Evidence in Finidng Small Scall Amendment "Not In Compliance"

In Katherine's Bay, LLC v. Fagan and Citrus County, the 1st DCA overturned the Administration Commission Final Order, adopting a Recommended Order issued by a DOAH ALJ, that found a small-scale plan amendment permitting an RV park to be "not in compliance."

The Court found that the ALJ violated the applicable rules of statutory interpretation (that the specific governs over the general) by finding that the amendment violated a general coastal/environmental policy when a more specific policy addressed the location of RV parks.   Again, we see the 1st DCA limiting the strict scrutiny language of Machado, which states the over broad position that every development order must comply strictly with each and every provision of the comprehensive plan. 

The Court also found that the ALJ make a determination that the amendment was not "compatible" without competent substantial evidence.   This is another important aspect of the case:  the Court rejected the ALJ's acceptance of the lay opinion of the challengers that a mobile home park would have adverse impacts on the area including light pollution, traffic, and negative impact on housing values.   The Court is, in effect, setting forth fairly stringent requirements for evidence regarding compatibility that requires expert testimony on most aspects commonly used to claim that uses are not compatible.  The Court specifically rejected any analysis that the RV use was "inherently" incompatible with  existing residential uses simply because it was different and more intense.

Important reading for future cases.

1st DCA - "Reasonableness" Must Be Used When Interpreting Plan Provisions

In Arbor Properties et al v Lake Jackson Protection Alliance et al, the 1st DCA overturned the trial court's determination that a PUD approval vioated certain watershed policies of the Leon County Plan.

This was a classic problem of "strict scrutiny" rules under Machado v. Musgrove creating an absurd result.  The Leon County Plan Conservation Element includes special provisions that apply to developments in the Lake Jackson watershed, including on that required the land development regulations to have special designations for the watershed that would effectively preclude residential development.  However, one of the Future Land Use policies indicates that the designation requirements are not intended to apply in "closed sub-basins" -  basins that don't discharge water into the Lake, even though they are within the general Lake Jackson drainage basin.

Opponents challenged and convinced the trial judge that because the FLU policy did not specify that it was intended to create an exclusion to the specific Conservation Element  policy (it was simply included a a sub-policy below the general policy), it didn't have that legal effect.

The 1st DCA ruled that the entire set of policies had to be read together and that in that light, the only reasonable interpretation was that the FLU policy was intended to create an exception to the Conservation Element policy, and was consistent with its intent.  Supporting this analysis, the Court said:

The Florida Legislature has established that in reviewing consistency, a court may consider the "reasonableness of the comprehensive plan, or element or elements thereof, relating to the issue justiciably raised or the appropriateness and completeness of the comprehensive plan, or element or elements thereof, in relation to the governmental action or development regulation under consideration." § 163.3194(4)(a), Fla. Stat.
Here, the trial court’s order incorrectly reviewed the development order and the Plan by neglecting to consider the “reasonableness of the comprehensive plan, or element or elements thereof.” By reviewing the applicable provisions of the Plan as a whole, the most reasonable and holistic interpretation, based on both the text and the synthesis of the document, we have no doubt that the development order is consistent with the Plan. This is necessarily so, because when read in pari materia, it is clear that the Plan and its elements provide that within certain Zones that actually discharge rainwater runoff into Lake Jackson, Leon County has established much more stringent development limitations for one primary purpose: to protect Lake Jackson from polluted rainwater runoff

It is hard to underestimate the importance of this decision to landowners/developers.   For years, neighbors and local government attorneys have used the "each and every element" language in Machado to argue that development orders must be consistent with unreasonable, atomic analyses of particular plan provisions - which can easily be taken out of context.  Every land use lawyer in Florida knows the result:  every complex plan in the state has provisions that can be used to defeat ANY development order at any time through an unreasoning application of the consistency doctrine and vague and subjective plan provisions.   This opinion is a strong stake in the ground that "strict scrutiny" must be balanced by a reasonable application and result.

The Court went on to reject an argument that this interpretation would create other "absurd" results in applying the Plan - citing not only the speculative nature of those claims, but also stating that the "absurdity" doctrine in statutory construction should be applied restrively. 

Saturday, January 15, 2011

Back in Blog

Hi all -

After a long (too long) hiatus, I'm back blogging. I'm pretty much caught up through 2009 plus 3d DCA cases (some pretty important) for 2010. I'll work on getting some of the more important land use cases from other Districts up in the next few weeks.

Thanks to everyone who encouraged (well, in some cases practically threatened) me to get the blog going again.


AMAZING 3d DCA Upholds Circuit Order Requiring Approval of Plan Amendment and Zoning

In the frankly astounding case of Village of Pinecrest v. GREC Pinecrest, the 3d DCA upheld a lower court decision that reversed the Village's denial of a plan amendment, rezoning and site plan approval. The amendment and development orders would have permitted an 18 unit housing project.

In discovery, the Village admitted that the Plan Amendment - and the project - were consistent with the comprehensive plan. Apparently the project required a future land use map amendment that brought the map into consistency with other policies, and the project was totally consistent with the other policies an map.

The Village, in effect, claimed that it had complete legislative discretion to deny the FLUM amendment and therefore the development orders even if they were otherwise consistent with the Plan. The circuit court disagreed and the 3d DCA upheld the circuit court.

This is a MUST READ. The facts may end up unique, but the case is the first case that establishes a critical proposition: that local governments may be obligated to adopt amendments and development orders that are consistent with their Plans.

Milan Investment Group v. City of Miami/Downtown Development Authority

In Milan v. City of Miami et al, the 3d DCA held that a challenge to the establishment of the City's Downtown Development Authority was precluded by an earlier decision, but that challenges to the annual millage rate set for the authority were not governed or precluded by the earlier action.

This case will be interesting to follow when the challenges to the millage are adjudicated and then appealed.

Monroe County v. Cisneros

In Monroe County v. Cisneros the 3d DCA reversed a writ of mandamus regarding code enforcement matters while the same issues were pending appeal.

Like the earlier Dade County and Sunny Isles cases, what we find here is that the circuit courts need more presribed methods for granting stays of local administrative orders that are pending appeal. In code enforcement cases - which are subject to appeal rather than certiorari - there actually is a process under the Fla. Rules of Appellate Procedure, but they are very confusing. If a certiorari action is filed, there is no statutory or rule authority for a stay.

So - again - what we need is legislation providing more effective judicial relief in cases involving local administrative actions -- perhaps the legislature could make quasi-judicial orders of a local administrative body subject to appeal pursuant to 120.68.

Dade County v. Wilson

In Dade County v. Wilson the 3d DCA reversed a temporary injunction issued to bar enforcement of a code enforcement order to cut off electricity to a building for safety violations. The District Court found that Wilson should have exhausted his administrative remedies and did not.

This is another case where the lower court granted an "improper" form of relief to prevent a perceived abuse of the administrative process. What this shows (to me) is that the forms of judicial review currently available are insufficient to provide justice to citizens, and that the circuit courts will (sometimes) risk the sting of later reversal to provide relief where they believe justice requires it. More reason to provide more effective judicial review and supervision in the first instance.

Sunny Isles v. Temple B'Nai Zion

In Sunny Isles v. Temple B'Nai Zion the 3d DCA quashed a writ of mandamus that had been ordered against the city to prevent it from enforcing a historic site designation pending futher proceedings against the designation. The 3d DCA found that the circuit court had, de facto, entered a temporary injunction that did not meet the requirements of Fla. R. Civ. P 9.130 and quashed the writ.

Practice note -- sometimes, the form of the pleading matters. Of course, the Temple got the delay it wanted (or at least most of it), but it could have left itself open to sanctions -as might future attorneys who try to use mandamus in lieu of injunction under similar circumstances.

3d DCA - Limits on the Use of Estoppel or Laches against Gov't in Code Enforcement

In Monroe County v. Carter the 3d DCA quashed the circuit court's quashal of a code enforcement order. The circuit court found that that the County was barred by laches or estoppel from enforcing the code against a ground floor (below flood elevation) rental unit in Ms. Carter's house. The 3d DCA disagreed and distinguished the earlier Castro decision becuase the unit here had never been permitted.

3d DCA - Circuit Courts Must Issue Opinions when Quashing

In Dade County v. Tolbert the 3d DCA reversed the circuit court quashal of the denial of a "plat rezoning" because the opinion did not state the basis for reversing the BOCC. The 3d held that this amounted to a "per curium reversal" and departed from the essential requirements of law.

3d DCA - More on Takings and Statute of Limitations in Monroe County BUD cases

In Beyer v. Monroe County, the 3d DCA reversed a trial court determination that the plaintiff's takings case was barred by the statute of limitations. This is another case where the existence and use of the "beneficial use determination" process available in Monroe County establishes the date that a takings case accrues, as opposed to the date of adoption. Required reading for anyone looking at filing takings claims, as are the other recent 3d DCA opinions coming from Monroe County, because they illustrate the interaction of ripeness, administrative remedies and "as applied" vs. facial takings claims.

5th DCA Mangles the "As Applied" Requirement of the Bert J. Harris Act and Confuses Reasonably Foreseeable, Reasonable Investment Backed Expectations

Citrus County v. Hall's River Development, 8 So. 3d 413 (Fla. 5th DCA 2009)

In 2002 the Citrus County Commission approved a rezoning and development plan, which neighbors then challenged as inconsistent with the comprehensive plan. A plan designation adopted in 1997 limited development density around lakes to 1 unit per 20 acres, but (and the 5th DCA ignores this critical component of the trial court's analysis) also had a provision allowing the County Commission to approve higher densities and uses consistent with the existing zoning/land use designation. This property had a "generic" zone district and an existing RV/camp park. Based on this combination of existing uses and density, the planning staff and eventually the county commissioners thought the property was vested for density and qualified for the exception in the comprehensive plan.

The rezoning was challenged under § 163.3215 as contrary to the low density land use designation, and the circuit court in that case sided with the neighbors, holding that the plan didn't allow the rezoning or use. Based on this new 2002 court interpretation of the effect of the 1997 comprehensive plan amendment, the developer sued under the Bert Harris Act and won at the trial court level. However, the 5th DCA, not liking the outcome, went searching for reasons to overturn the circuit court decision. In the process, the 5th DCA avoided key facts and misinterpreted the Act.

Under the Act, a landowner may seek compensation when a specific action of a governmental entity inordinately burdens either a vested right or an “existing use” of property. One of the definitions of an "existing use" is a "reasonably foreseeable, non-speculative land use that is suitable for the real property, compatible with adjacent land uses, and that has raised the fair market value of the property . . . " (a "reasonably foreseeable use"). One of the definitions of an inordinate burden is that a property owner is permanently unable to realize "reasonable investment backed expectations" in the vested right or existing use.

Here, the 5th DCA determined that the suit was filed too late under the Act, which requires the property owner to provide a notice of claim to the government entity involved within 1 year of the application of a new statute, regulation or ordinance that inordinately burdens real property. A "specific action of a government entity" is a defined term that specifically includes action on a permit or application, i.e., the application of a statute, regulation or ordinance to the particular property at issue. Within the Act there are various internal references to the application - rather than adoption - of statutes, regulations or ordinances, which clearly establish that a property owner must make some kind of application and have it acted upon or suffer some form of enforcement action, before filing a claim. This was also the interpretation of all of the commentators who wrote about the Act. So, if the prior property owner had made a claim in 1998 against the adoption of the plan amendment, the County's correct defense would have been that it was premature until an actual application had been made and denied, giving the County a chance to determine whether other provisions of the plan allowed relief from the objective density limits in the designation.

The 5th DCA paid no attention to all of this evidence that specific action on an application or permit was the trigger for a government action that creates liability, and determined that the mere adoption of some ordinances - or plan policies - can be the “specific action of a government entity” that triggers the 1 year requirement. The 5th DCA opined that where a comprehensive plan or other regulation includes a clear and objective standard (like height or density), the mere adoption of the ordinance "applies" that ordinance to property and triggers the one year challenge period. The 5th DCA found that the plan designation had that kind of objective limit - completely ignoring the plan provision that authorized the County Commission to allow additional uses and densities - a provision whose effect could not be determined until an actual application was made.

The 5th DCA then used its interpretation of the plan provision to hold that the use permitted by the overturned rezoning could not have been a "reasonably foreseeable, non-speculative land use." Even though the planning department thought the rezoning and use/density were permitted under the plan (and existing zoning), even though the County Commission thought it was consistent with the plan, and even though it took a "consistency challenge" by neighbors to determine that the development was not consistent with the comprehensive plan, the 5th DCA determined that the developer had no right or ability to rely on the interpretations of those professionals before proceeding, and that a development that is (later determined to be) inconsistent with the plan cannot be "reasonably foreseeable."

The 5th DCA also applied this distorted view of the facts to the Circuit Court's determination that the property had been inordinately burdened, holding that the owner could not have had "reasonable investment backed expectations" because he closed on the property after the adoption of the plan amendment that (the Court reasoned) prohibited the development. This interpretation ignores U.S. Supreme Court and Florida appeals court precedent (Pallazzolo v. Rhode Island and Vatalaro v. DEP) that hold that the purchase of property subject to a regulation does not prevent one from having "reasonable investment backed expectations" in a regulated use where the application of the statute or regulation would affect a taking.

The Court found that the developer could not have relied on the County staff representations of the comprehensive plan because they were (later found to be) legally incorrect, and that this precluded the landowner from having either an "existing use" (in the form of a reasonably foreseeable use) or an "inordinate burden" (because there was no reasonable expectation). This is a misinterpretation of the Act. While under Florida law "vested rights" against the application of a regulation are not created by a legally incorrect statement by a government official ("yeah, I think you can fill that wetland"), the District Court mistakenly ties this doctrine to whether a landowner has a "reasonably foreseeable use" or "reasonable investment backed expectations."

The 5th DCA’s holdings fly in the face of the legislative intent that the Act provide a remedy for property owners harmed by the application of statutes, regulations and ordinances adopted after 1995. However, if, as occurred here, the adoption of a new, post-1995 law precludes a landowner from having a "reasonable investment backed expectation" then the only people with a cause of action are those who had already had established vested rights at the time the new law was adopted. The District Court's analysis incorrectly makes "reasonable investment backed expectations" and "reasonably foreseeable uses" under the Act dependant on the landowner's ability to establish the existence of a vested right. This is demonstrably wrong: the first part of the cause of action separately protects BOTH vested rights and "existing uses," but the 5th DCA’s formulation requires a property owner to have a "vested right" in order to have both a right that would be inordinately burdened and a reasonably foreseeable use. The District Court's combination of incomplete treatment of the relevant plan provisions and errors in analysis have the effect of writing protection for "reasonably foreseeable uses" out of the Act, a result that is inconsistent with both the intent and the language of the Act.

1st DCA Confirms that Local Governments Must Issue Development Orders for Development as Defined Locally and Under Sec. 380.04, Fla. Stat., for Evalua

Johnson v. Gulf County, 26 So.3d 33, 34 Fla. L. Weekly D2625b (Fla. 1st DCA December 22, 2009)

In Johnson v. Gulf County, the 1st DCA (on this case’s second trip from the circuit court to the 1st DCA), held that (1) a landowner was required to obtain a development order to fill certain lands alleged to be wetlands and to subdivide his property into 5 lots, so that (2) the complaining neighbors could bring a §163.3215 challenge against the action.

This action started in 2006. A landowner got a determination from FDEP that his property did not include jurisdicational wetlands of the state. He then began to fill them. He also used provisions of the Gulf County land development code to split one parcel and rearrange parcel boundaries so as to create five lots from what had previously been three, all without going through the County’s subdivision process.

The neighbors complained that the filling violated the comprehensive plan, and also tried to bring claims under § 163.3215. The County claimed there was no need for any development permit or order (under the County code) and therefore nothing to challenge. The neighbors also claimed that the subdivision of the property violated the local ordinance.

In the first go-round, the circuit court dismissed the neighbors’ claims without leave to amend. The 1st DCA reversed, stating that the neighbors had to be given the chance to amend the complaint, but stating nothing about the substance of the matter. On remand, the circuit court dismissed the amended complaint.

The circuit court held that the filling of the wetlands (assuming they were) did not materially alter the use, density or intensity of use of the land. It found that no development order was necessary and that even if one was necessary, the filling of non-jurisdictional wetlands was not inconsistent with the plan. It also found that the “lot split/reconfigure” process used did not require full subdivision approval.

The 1st DCA reversed. It looked at the County’s plan, which included requirements that wetlands get certain protections, and determined that nothing in that plan (or the land development code) stated an FDEP determination that a wetland is not jurisdictional means that it is outside the County’s jurisdiction. It also held (and this is important to people in a lot of areas) that a minor replat process is also a development order

The 1st DCA properly found that, under the definition of development in the Gulf County LDC (which is consistent with §380.04’s definition), clearing and filling land constitutes development. The Court held – and this is an obvious step (see Das v. Osceola County) – that the County had to issue a development order for a landowner to engage in development. The Court also found unambiguous language in the plan that appears to limit development within 50 feet of wetlands, whether or not they are jurisdictional, and that certain language in the LDC could not limit the scope and reach of the plan. The Court ordered the landowners to comply with the requirements of the plan and code, ordered the County issue a development order for the wetland filling, and ordered the circuit court to conduct a de novo hearing on whether that development order is consistent with the plan.

The Court then did (again, appropriately) a de novo review of the provisions of the County’s subdivision regulations and found that the splitting/reconfiguring done here required a full subdivision.

M&H Profit, Inc. v. City of Panama City, 34 Fla. L. Weekly D2554b (Fla.1st DCA Dec. 14, 2009)

M&H Profit, Inc. v. City of Panama City, 28 S.3d 71, 34 Fla. L. Weekly D2554b (Fla.1st DCA Dec. 14, 2009)

In M&H Profit, Inc. v. City of Panama City, the 1st DCA upheld a circuit court decision to dismiss a Bert Harris claim because the City had not applied a new law to the property simply by enacting a change to the zoning code.

Under the facts (at least as stated), the property owner would have a bad time under the Act. The owner bought commercially (C-1) zoned property in the City that, at the time, was not subject to any height restrictions. The owner apparently intended to build a 20 story condominium. The most critical fact in the opinion (if true) is that the comprehensive plan apparently did not allow residential development in that area or district (it’s unclear whether the zoning code and plan were in conflict).

The owner met with the City to discuss plans, and the City then adopted changes (apparently already in the works, but who knows) to the code to limit height to 120 feet with certain setbacks and 150 feet under any circumstance. The owner then met “informally” with the City Manager and got a letter indicating that the proposal would not be permitted under the amended C-1 zoning. The owner did not appeal, but his attorney wrote to ask if there was any way around it.

The owner then filed a Bert Harris claim, asserting that the adoption of the zoning change inordinately burdened its property by preventing the approval of the 20 story condominium project.

The circuit court dismissed, agreeing with the City that the owner could not maintain a claim because no application was ever made and that only “as applied” challenges can be raised under the Act.

The 1st DCA upheld the circuit court decision. Citing the language of the Act, the Court noted that the plain language requires the application of law. Citing commentators who interpreted the Act as only providing an “as applied” challenge, the Court held: “Simply put, until an actual development plan is submitted, a court cannot determine whether the government action has “inordinately burdened” property.”\

Amazingly, the majority opinion makes only the most passing reference to Hall’s River:

Finally, appellant argues this case is controlled by Citrus County v. Halls River Development, Inc., 8 So. 3d 413 (Fla. 5th DCA 2009). It is unnecessary for us to address the correctness of that decision because we find it inapplicable in this case. Citrus County involved an amendment to a comprehensive plan which reclassified the land use category on a particular piece of property. In this case, we are dealing with adoption of a general land development regulation effective throughout an entire zoning district. Citrus County is, therefore, not controlling.

This opinion is in clear and direct conflict with Hall’s River and totally misstates the facts. The plan amendment in the Halls case did NOT apply only to the property in question.

However, the opinion does not stop there. Judge Wolf (former counsel for the Florida League of Cities) wrote the opinion and apparently could not help but include an otherwise totally unnecessary analysis of local home rule powers as justification for not broadly construing the clearly remedial Act. Judge Wolf creates from whole cloth an entirely new rule of law: “Thus, an interpretation of state statutes which would impede the ability of local government to protect the health and welfare of its citizens should be rejected unless the Legislature has clearly expressed the intent to limit or constrain local government action.” In this language, Judge Wolf takes Florida law regarding preemption (which Judge Wolf has helped expand to the point that the Legislature must use “magic words” to preempt local authority or to create uniform law) and raises it to an entirely new level. One imagines that there is a shrine to Article VIII of the Florida Constitution in his office, one that places the provisions governing home rule above every other provision in the document.

And it makes one wonder whether the Court’s “mis-cite” of Hall’s River – and attempt to avoid defining or certifying conflict – might not be an active attempt to avoid Supreme Court review of the opinon and its new home rule doctrine.

The dissent cites Hall’s River as a reason the landowner should be given the chance to make a case. I actually think that the majority opinion does the landowner a favor. Making a specific application for what he wants and being denied is the best way to demonstrate the effect of the ordinance and the only way to prove that the project could have or would have been approved under the prior ordinance – which (IMHO) would be central to being able to prove up the rest of the case under the Act.

Fifth DCA Reverses Itself, Circuit Court and Board of Adjustment to Hold that Special Use Permit was Inconsistent with Comprhensive Plan

Keene v. Zoning Bd. of Adjustment, et. al., 22 S.3d 665, 34 Fla. L. Weekly D2231a (Fla. 5th DCA Oct. 30, 2009)

The Zoning Board issued a Special Use Permit to conduct a horseback riding school and hold endurance trail ride competitions on land designated “Rural Residential” by Putnam County. The circuit court upheld the permit. In Keene v. Zoning Bd. of Adjustment, the 5th DCA on rehearing, reversed the circuit court.

While the action is described as one for “declaratory relief,” review of the footnotes and the dissent clarifies that it was brought pursuant to §163.3215, Fla. Stat. The majority finds that the SUP was a development order (it permitted a material alteration in the use of land, if one parses §380.04), subject to challenge on the basis that the activity was inconsistent with the comprehensive plan. The majority then looks to language used by the applicant and the County to describe the use as “commercial: agriculture related” and comparies it to the Plan. The 5th DCA concludes the Plan does not permit such uses in the “Rural Residential” land use category, but does permit “resource-based recreational uses.” The Court reviewed the record and determined that, based on how the Plan itself and the LDC are organized and interpreted, the uses clearly fall into the commercial realm and are not permitted.

The majority’s approach is consistent with cases like Dixon v. City of Jacksonville, Saddeh v. City of Jacksonville, and Bay County v. Harrison, holding (a) courts review the provisions of comprehensive plans de novo and do not give deference to local interpretation, and (b) plans are interpreted so that land uses not specifically permitted (or permitted by direct implication) within a land use category are presumed to be prohibited, particularly when they are permitted in other categories.

The dissent by Judge Griffin questions whether the SUP was a development order subject to challenge under § 163.3215. The dissent’s main focus and claim is that the majority essentially overanalyses the issue and ignores the provision of the Rural Residential category that permits “Activity and Resource Based recreational uses.” In her review of the record, Judge Griffin focused on the findings of the Zoning Board and the circuit court judges that tied the “boarding and riding school uses” more to recreational uses than commercial uses, and noted that commercial uses that are recreation-oriented were permitted. Judge Griffin also questioned the analytic approach to consistency. It appears she would hold in order to find a development order inconsistent with a plan, there must be a specific provision that is violated. I think this holds true with policies that involve development standards (prescribing wetland buffers, for example), but is much more problematic when it involves the uses permitted in particular land use categories.

This case is very interesting and important because even though they come to different conclusions, both the majority opinion and the dissent are doing exactly what the courts should be doing: digging into the meaning of the plan, the LDCs and the record to determine whether the local government is or is not acting within the boundaries of the Plan. By passing §163.3215, the Legislature instructed the courts to “act as super-zoning boards” in the interpretation of the plan.

As a side note, this is one of those cases where I read the opinions and think that I could have gone either way on the analysis. All in all, I think the majority opinion got too caught up in the staff’s early categorization of the use as “agriculture: commercial” and didn’t focus enough on whether the use could be considered “activity and resource based recreational.” That said, and without the benefit of the record, the combination of a boarding facility, a riding school, and endurance contests seems to me to push it into a commercial use that is not “activity based recreation.” I also recognize that rural areas did, do and should permit more flexibility in how the lands are used productively and I would probably lean the other way if there was evidence that other, similar types of uses in the area and in the same land use category had similar levels of activity and mipact. If this kind of commercial activity related to rural/agricultural uses was intended, the Plan should have included a definition or description of "activity based recreation" to include things like canoe/kayak rentals, riding/boarding facilities, etc.

3d DCA Holds that Law of the Case Precluded City from Reopening Hearing after Quashal

Dougherty v. City of Miami, 23 S.3d 156, 34 Fla. L. Weekly D2047a (Fla. 3d DCA Oct. 7, 2009)

The City Commission granted a special permit. The circuit court upheld the City’s decision. In Dougherty v. City of Miami, the 3d DCA quashed the circuit court decision following an earlier remand. The 3d DCA decision turned on the failure of the City Commission and the circuit court to adhere to the law of the case in the matter.

In earlier proceedings, the City had granted the special permit and the circuit court had reversed, finding that the City Commission’s authority was limited to appellate review of a Zoning Board decision and that the City Code required the City Commission to issue findings of fact. The circuit Court quashed the decision and remanded it to the City Commission to issue a written decision based on the record before the Zoning Board.

On remand, the City Commission conducted another de novo hearing and applied later adopted provisions of the Code. It then approved the permit with an additional condition. On first tier certiorari review, the circuit court held that the City Commission was permitted to conduct a de novo review because the code had changed.

The 3d DCA quashed the circuit court’s denial of certiorari, holding that both the City Commission and the circuit court were bound by the law of the case: The 3d DCA stated “[t]here is no doubt that the 2006 circuit court appellate decision actually decided that the City Commmission had to limit its review to the record received from the Zoning Board and that it was required to render findings of fact in support of its decision.”

A concurring opinion agreed that the law of the case applied and determined the matter, but (citing Snyder and GBV,) disagreed with the original decision. The concurrence is wrong. The City Code required that all agents, agencies or boards issue written findings concerning zoning matters. The concurrence incorrectly assumes that requirement would not apply to the City Commission sitting in a quasi-judicial capacity (whether appellate or de novo). However, where a governing body sits in a quasi-judicial capacity, it is exercising executive or administrative authority delegated to it by code or statute and is bound by those restrictions just as any “inferior” board or agency would be bound.

This is an important case. Even if it does not establish any substantive law, it clearly indicates that even under the restrictions on “quashal” under G.B.V., the circuit court’s order on certiorari review is binding on both the lower tribunal and later review by the court.

Fifth DCA – Legislative Intepretation and the Scope of the Agricultural Exemption fromERP Permitting

A. Duda and Sons v. St. Johns River Water Management District, 22 S.3d 622, 34 Fla. L Weekly D1454 (Fla. 5th DCA July 17, 2009)

In A. Duda and Sons v. St. Johns River Water Management District, the 5th DCA rejected the Water Management District’s efforts to construe the “agricultural exemption” language of Sec. 373.406(2), Fla. Stat., to make the exemption essentially meaningless – while also rejecting Duda’s interpretation that would focus on its subjective intent. The language at issue states:

Nothing herein, or in any rule, regulation or order adopted pursuant hereto, shall be construed to affect the right of any person engaged in the occupation of agriculture, silviculture, floriculture or horticulture to alter the topography of any tract of land for purposes consistent with the practice of such occupation. However, such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters.

The fight: the District took the view than any action that had the effect of more than “incidentally” impounding or obstructing any surface water was not exempt; Duda argued that the “purpose” language made the limit on the exemption dependant on proof of intent to impound or obstruct surface water. The Court rejected both, holding that intent was not at issue. But the court concluded that an alteration of topography had to be more than incidental and the Water Management District’s rules using that standard violated the statute.

While the decision is substantively important for people who practice in this area, what is more generally important is the Court’s (1) recognition that the issue was one for de novo interpretation of the statute (rather than for deference to the District’s interpretation) and (2) the approach the Court takes in resolving the language in the statute. This decision demonstrates the power of effective judicial review and why local government ordinances and interpretations should be subject to the same level of scrutiny.

The 3d DCA Makes a Good, But Tough Call on “Reverse Spot Zoning”

Miami Dade County v. Valdea, 9 So.3d 17 (Fla. 3d DCA 2009)

In this “reverse spot zoning” case, the circuit court had found that a single family home surrounded by non-residential uses was entitled to receive office zoning. The 3d DCA upheld the circuit court.

The dissent questions the decision because the “group homes” on at least one side of the property are classified as residential uses. The dissent also takes the circuit court and majority opinion to task for not simply looking at whether “competent substantial evidence” supported the denial. The dissent uses the circuit court’s detailed examination of the evidence for “reverse spot zoning” as sufficient in and of itself that the circuit court impermissibly reweighed the evidence.

The problem with the dissent’s position is that if the Board was legally incorrect in denying the rezoning because the evidence established that the denial would be “reverse spot zoning,” the circuit court would be obliged to cite all the evidence demonstrating the Board’s error. Under the dissent’s approach, if there was evidence to support a reason for denial, the circuit court would err in examining evidence proving that the denial was legally impermissible.

The dissent’s position demonstrates that the current standards of certiorari review are simply too lax and too deferential to the local government position to provide any meaningful judicial review.

First DCA Puts Another Nail in the Coffin of Due Process- Findings not Required for Denial of Plat

Alachua Land Investors v. City of Gainesville, 15 S.3d 732, 34 Fla. L Weekly D2163 (Fla. 1st DCA July 17, 2009)

In Alachua Land Investors v. City of Gainesville the 1st DCA held that the City did not violate due process or the essential requirements of the law when it denied a plat without written findings. The Court cited G.B.V. Internat’l and Bd. of County Comm’rs v. Snyder for support. As I have written elsewhere, G.B.V. is improperly cited for this proposition because the language in the decision was purely dicta and the matter was not property before the Court. Similarly, Snyder only dealt with rezoning and did not over-rule other cases holding local quasi-judicial decisions had to have written findings.

The bottom line is that Justice Pariente got it right in her dissent in G.B.V. – as had been consistently determined by the courts previous to Snyder: effective judicial review of a quasi-judicial decision is impossible without written findings. These decisions deny due process to applicants and neighbors alike by allowing local tribunals to make up reasons for denying or approving an application in order to meet the facts in the record.