Supremes Give with One Hand and Take with the Other - or Why Citrus Canker Litigation Will Be Back Again

The latest round of the citrus canker wars was unresolved by the Florida Supreme Court on April 14 when it issued this opinion. The Supremes overturned the 3d DCA's opinion, which basically held that because the Legislature had determined that all trees within a 1900 foot radius of an infected tree should be considered infected, those trees had no value and no taking resulted from their destruction.

But the court did not reverse the portion of the lower court ruling that held that the aggrieved landowners did not have an inverse condemnation claim.

Instead the court ruled that a deeply flawed and subject-to-funding statutory provision for compensating homeowners reached back to provide an avenue for compensation. It also interpreted the statute to provide greater-than-statutory compensation where a judge determined the value of taken trees.

But it did not hold that the statute had to provide full and fair compensation - which under Florida's constitution means that if your property is taken, your attorney's fees (and experts) get covered. That flat out means that the majority opinion is internally contradictory, holding that the trees weren't "of no value" (and therefore were taken), but not providing the constitutionally mandated remedies for takings - full compensation, including attorneys' fees.

Pariente concurred and claimed that this statute met the Haire test that required "just and fair" compensation. She also claimed that the homeowners were better off with a statutory remedy than constitutional inverse condemnation because they wouldn't have to prove a taking against nuisance and "imminent danger" defenses. Essentially, Pariente is saying that if the Legislature confesses a taking and doesn't make you litigate the entire case (but does make you litigate your damages), it can dispense with the need to provide attorney's fees - even if the result is that you'd have to spend more in attorney's fees than you'd get in damages.

Lewis concurred in the result only, and would have held that the landowners had a constitutional inverse condemnation claim. He's on the right side here, but not speaking out strongly enough.

Quince dissented, claiming that the majority twisted the statute to provide relief that wasn't there and that wasn't constitutionally acceptable. She would have allowed an inverse condemnation claim. She didn't mention fees directly, but clearly is disturbed by the way tha the majority is allowing a limited statutory right to displace a more complete constitutional right.

We're going to see this come back, for two reasons. One, there's no obligation under the statute to fund the awards, so a bunch of people may get judgments that they can't collect. If this is a taking, then that's not acceptable. Two, there's no statutory provision for attorneys fees in this case. Courts are going to deny them, and the whole issue will wend its way back to the Supreme Court to resolve the resulting constitutional issue.

The entire mess is like the nasty 1983/1988 decisions that hold that you can't get attorney's fees in those cases where the damages are just nominal. Essentially the courts have been holding that if a violation of your rights is worth less than the cost to fight for them, you don't get your attorney's fees. In other words, the government can violate your rights all it wants to as long as the damages aren't above the cost of the fees to object.

When do administrative appeals not provided by general law go to the District Court?

When the administrative agency not covered by the APA is a state agency rather than a local government or local administrative agency.

So held the 5th DCA in this opinion, in which it had to tussle through the various constitutional and rule provisions governing the review of administrative actions to come to a conclusion. I think they reached the right conclusion, but the fact that there's not statutory guidance on this issue is simply ridiculous.

The real conclusion: the Legislature should do its duty to proscribe by statute the authority of the different courts to hear APPEALs from administrative decisions. Basically we need a backup to Chapter 120 to cover all of those situations not covered by it - like local governments and boards, and state agencies that manage to get exemptions from the APA.

A Quick Primer on 11th Amendment and Why sheriffs (and counties) Aren't Immune from 1983 Suits in Federal Court

Ok, off base a bit, but anyone who litigates land use cases against local governments is always wondering about when a section 1983 based civil rights lawsuit might be feasible.

The 11th amendment (well, a very old and very bad US Supreme Court case interpreting it) bars citizens from suing their states in federal court. But certain agencies of the state do not benefit from that "immunity" (you can still raise the federal claims in state court).

This opinion from the 11th Circuit does a good job of laying out the history and function of the rule and how to apply it to sheriffs (the result: in most functions Florida sheriffs do not benefit from 11th amendment protections). It also has a straightforward suitable statement that counties aren't immune as they are treated like municipalities.

5th DCA - Dec Actions Provide Sufficient Guarantee of "Prompt Judicial Decisions" in 1st Amendment cases [updated]

I don't think I wrote about the US Supreme Court's decision in the Littleton case last year - here's the link - which involved a challenge to the sufficiency of the judicial review available to a first amendment-implicated licensing decision. Earlier cases had indicated the need for prompt judicial review and decision (in different opinions); Littleton argued that there was no need to guarantee a prompt judicial decision and that Colorado law was adequate to provide it anyway.

The court rejected the first position, holding that a prompt judicial decision is a critical element in a valid regulatory scheme that implicates First Amendment values. It then went on to hold that Colorodo's would meet that - laying out a bunch of language, but basically saying that you can expedite and hear these cases quickly under the rules, and judges know these need to be expedited, so we're not going to disturb this on a facial challenge, but deal with it on a "case by case" basis.

MOREOVER, the Littleton ordinance provided an administrative procedure for the issuance of a license that allowed appeal to the appellate court - rather than a de novo action. So the review here was appellate - failure to provide sufficiently prompt judicial review would be evaluated on a case-by-case basis.

What they were REALLY saying (and its in one of the lines) is that states (or local governments, who can't in Florida) don't need to adopt special statutes for guaranteeing prompt judicial review in order to have valid local zoning regulations that implicate First Amendment values. They were leaving it open to what would happen if the system failed. Presumably, because we're talking about appellate review, the failure of the courts to respond appropriately would be subject to its own decision rule - the court, rather than the local government, would be violating the 1st Amendment/due process by failing to act expeditiously on a petition.

In the process, the Supremes over-ruled our own 11th Circuit, which had held (in yet another Cassleberry case) that the First Amendment only required prompt access to courts, not a prompt decision. The Court clearly rejected that line - so if a 1st amendment licensing case arrives before a judge, there is a FUNDAMENTAL right to a rapid decision so that a license that has been inappropriately denied (or where the ordinance is invalid), there is rapid remedy.

WHICH leads us to this opinion issued March 24 by the 5th DCA (I've got to start reading more of the criminal appeal cases -tx to Matt Conigliario at Abstract Appeal for seeing this one). It upholds a challenge to Orange County's adult bookstore licensing ordinance based on vagueness and inadequacy of review.

First, the Court held that the provisions defining an adult bookstore regulated under the Ordinance were not unconstitutionally vague. So the Appellant could be prosecuted for selling adult material without the proper license if the rest of the ordinance were valid.

Here's the kicker: the Orange County Code has the Tax Collector make the decision with no avenue for a full administrative hearing or de novo administrative appeal (whether the Commission has authority over the constitutionally independant Tax Collector is another interesting issue that wasn't raised). Instead, another provision "allows" (remember, local governments have NO authority to grant or modify judicial jurisdiction) an applicant who is denied a permit "to immediately file appropriate pleadings." Hence - the majority and dissent find correctly (yeah, we're getting somewhere) that certiorari review is NOT available to speed a denial into the courts.

The 5th then held (over a lucid dissent) that the availability of a declaratory action under Chapter 86 is good enough to provide "prompt judicial review." It cites all the parts of the Littleton opinion that talk about how judges will be good and discusses none of the issues associated with having to try a denial denovo. The problems with getting effective declaratory review in a prompt manner was simply glossed over by the majority - though laid out well by the dissent.

The majority doesn't deal with the problem that a $30,000 license fee would be unconstitutional, but forcing an applicant to pay that much to try a de novo action against the County to get the same license appears OK. Nor does it deal with the issue that nothing in the Rules today compels a circuit judge to grant motions to expedite, etc. And given the clear distinction (appellate review vs de novo attack) between the Littleton ordinance and the Orange County ordinance, I'm not sure that the 5th isn't asking for reversal.

But here's another interesting issue: the court did not address whether mandamus would be available and under what circumstances.

Here's the section on denial of permits:

1) The tax collector shall review the findings reported by the departments and deny the application for any of the following reasons:
a. The application is incomplete or contains incorrect or false information;
b. The applicant has failed to comply with the filing requirements of F.S. ch. 607, regarding corporations, the filing requirements of F.S. ch. 620, regarding partnerships, or the requirements of F.S. § 865.09, regarding doing business under a fictitious name;
c. A license issued under this chapter for the location of the proposed establishment is the subject of a pending suspension proceeding or is under suspension;
d. A license issued under this chapter for the location of the proposed establishment is the subject of a pending revocation proceeding;
e. The granting of the application would violate a statute, ordinance, or an order from a court of law that prohibits the applicant from obtaining an adult entertainment establishment license or operating an adult entertainment establishment
(2) If the tax collector denies the application, the tax collector shall, within seven (7) days, notify the applicant of the denial by certified mail, return receipt requested, and state the reason(s) for the denial.

It looks to me like the Tax Collector has to grant the permit unless one of these reasons to deny it exists. It also looks to me like these are pretty clear cut, non-discretionary types of determinations, and if a denied applicant could show through affadavits and collateral information that none of these bases for denial were present, the Collector would be required to issue the permit. OTOH, if the Collector disputed one of the facts, there's a line of cases that provides that mandamus would not be available - back to a dec action / injunction instead.

So here's another case where the appellate courts are essentially kowtowing to possible constitutional defective and abusive local ordinances.

11th Circuit Bounces Billboard Challenges in 2 Cases

The 11th Circuit las week bounced two different cases filed by National Advertising against an the City of Miami's billboard ordinance (well, it's old ordinance). One was a facial challenge to the ordinance, the other a denial of permits under it.

Here are the links:
http://www.ca11.uscourts.gov/opinions/ops/200315593.pdf

http://www.ca11.uscourts.gov/opinions/ops/200315516.pdf

In the first case, the 11th held that when the City amended the ordinance, it made the case moot, and the District Court was right to dismiss it.

Sounds simple? Think about this: the City had adopted and maintained an ordinance that National claimed was unconstitutional. The City didn't change it until after the company filed its federal lawsuit. We don't know what damages were alleged (or not alleged) to have occured due to the presumably illegal ordinance. But if National had been allowed to proceed, it would have been entitled to damages under section 1983 and -- more importantly -- attorney's fees under sction 1988. So what this decision actually is doing is taking another swipe at the civil rights of individuals and companies by limiting their ability to pay for attacks on illegal ordinances. The local government adopts something patently illegal, says "you don't like it, sue," and only changes it if someone spends thousands or tens of thousands of dollars to initiate a lawsuit - and then walks away scott free from its illegal act.

In the second case, the 11th dismissed as unripe National's attack on the City's denial of permits for new signs because it had not recieved a written decision.

OK, so the guy at the desk rejects the permit application (here, there may have been non-speech related reasons - height - for denying the permits, but . .. ) apparently based on height, but also told them that they weren't permitted in the C-1 zone district. National goes right into court on the denials as "as applied" attacks on the grounds that the City denied the permits because it doesn't allow billboards in the C-1 district. District Court granted summary judgment for City based on the ripeness issue.

OK, so on one hand, it does look like National should at least have fixed the height problem and filed a new permit to get a denial clearly based on whether the zone district allowed it (which went to an exclusion and process issue under 1st amendment law). But suppose the clerks had denied them, or refused to accept them, for some other reason?

The real issue here is that local governments in enforcing improper or illegal restrictions will try to hide behind pretextually valid reasons for the illegal action - and in such cases the action is legal. But the other problem lurking here is the one where the agency refuses to actually deny a permit because it knows that the denial will be illegal, and tells you that it won't issue the permit.

Under this case, you MUST go through at least some administrative attack on the refusal to issue or deny the permit to get a denial in writing. So before you can even mount your civil rights attack on an illegal ordinance or interpretation, you probably have to spend thousands of dollars on bringing the issue to the Board of Zoning Appeals (or whoever), then maybe even to a cert challenge of that before the local determination will be final enough to challenge the underlying ordinance as unconstitutional.

My suggestion - file a dec/injunction action in state court along with the cert appeal. You can bring your 1983 claims at the same time and not spend years of litigation getting these issues right.

SO - practice pointers for those of us who have to litigate against potentially unconstitutional local ordinances:

1) Plead damages, not just illegality - if you can claim damage during the enforcement period, you MIGHT avoid the mootness problem that bounced National (we don't know from the opinion if damages were pled).
2) Do it in state court – you can get all of your claims into court at once and may be able to simply abate some counts if they will rely on others
3) Give yourself some other bases for going forward.
4) Exhaust remedies!


(thanks to Larry Sellers for passing these along).

Another Key US Supreme Court Case - Lingle v Chevron - Will the Court Strike Back at Unfair Burdens?

While the Kelo case got nationwide attention and coverage (see post from earlier in the month), another case argued the same day got no attention and is far more important to land use issues.

Lingle v Chevron puts the "Agins" test squarely before the Court to determine whether it really means that the "substantial relation to a legitimate state interest" is a seperate takings test with seperate compensation requirements rather than some kind of bastard child of due process. The briefs can be read here.

The not-too-widely-discussed Del Monte Dunes case from a few years ago should have alerted everyone to the viability of this issue. That case ultimately turned on the question of whether a denial of a permit (in an administrative context) that was clearly not in fact related to the admittedly legitimate interests supported by the legislation and standards applied would create a taking - and the answer was yes at the District, Circuit and Supreme Court level. But that case had really eggregious facts - it was clear from the record that the local government was denying any application in order to preserve the property and perhaps to depress the value so that it could be bought. Those are not legitimate reasons for applying the legitimate environmental protection standards contained in the ordinance that the City was applying. Del Monte Dunes therefore stands for the proposition that where a local government inappropriately applies valid standards to deny development, and significant economic loss results, the "Agins" test means that there is a taking. That is, Nollan's application of Agins does not apply only to improper demands for "property" (easements or other exactions), but also to the destruction of property through permit denials. Two things were left unanswered - whether this applies to cases of less permanent and less total takings (here there was good evidence that the City wouldn't ever let them build ANYTHING), and whether the Agins test applies to legislative as well as administrative determinations.

In Lingle, the issue turns to legislation - and whether an Hawaiian act that limits the amount of rent that can be charged can create a taking if the "rent control" provision does not serve the intended and stated purpose of the legilsation. The question here is rent control applied to filling stations owned by gasoline wholesalers, supposedly to prevent certain kinds of predatory consumer pricing that too much vertical integration would allow. Chevron put on evidence that the statute would provide no impact on the legitimate stated interest of consumer protection from , and that it only shifted economic burdens as between Chevron and its lessees (to Chevron's detriment). The trial court found a taking as to the burden on Chevron from this scheme.

The briefs are predictable: Chevron stating that this is a long-considered aspect of the takings clause, articulating the "unfair burden" values that are part of the Penn Central balancing test (also articulated in Florida in the Estuary Properties case). This question examines whether the regulation unfairly puts public burdens on a private entity (say, providing public open space or parks - or in the case of Nollan, additional lateral beach access). Hawaii - and the APA and other entities - claim the end of the world and a return to Lochner-era substantive due process analysis if the claims are permitted. Interestingly, the US DoJ filed an amicus brief supporting Hawaii (here's the link to that).

I have no idea how this one is going to turn out, but I hope to see a serious shot across the bows of knee-jerk, grandstanding over-regulation. Since the federal courts have (inappropriately) made it much harder to bring section 1983 claims for the arbitrary denial of development permits and for arbitrary standards in ordinances, many, many local governments and agencies have been on an arrogant rampage of inappropriate and unfair regulation and regulatory actions - taking the "so sue me" response because they don't have anything to lose. ONLY the return of the threat of serious damages and attorney's fees will cause Commissioners to think twice and take their oath to uphold the constitution seriously - and their attorneys to be much more careful about what they "let" their Commissions do.

The better local government lawyers I know still worry about the constitutionality of their clients' actions and work hard to prevent them from adopting vague or illegal ordinances or taking arbitrary regulatory actions. But way, way too many take the view that their job is to defend the discretion of the Commission no matter what, and not to get in the way of them doing whatever it is that they want to do at the moment.

Also in front of the US S Ct - Ripeness/Res Judicata in Takings

On March 28, the US Supreme Court will hear argument in the San Remo Hotel case. Here are links to the briefs.

The underlying conflict here involves San Francisco's draconian anti-conversion laws, which require huge payments to the City if hotel owners convert their units to condominium or similar uses. Intended to preserve affordable housing in the city, the laws are hugely punitive to anyone who owns property that was used in "single room occupancy" (SRO) long term uses.

This case involves the interplay of ripeness and federal issue preclusion in takings cases. Under the "Williamson County" rule, a state action that creates a taking doesn't violate the federal constitution unless the state refuses to compensate for the taking - which requires presenting the case to the state courts. Other doctrines deal with how you reserve the right to litigate a federal claim in federal court when the same transaction might produce state claims.

The issue here is whether the state courts litigated not only the state's interpretation of the state's taking law (and the availability of compensation), but also the federal issues at the same time. The Ninth Circuit bounced the case, which is now before the Supreme Court on the question.

The problem here is somewhat obscure - ultimately it turns on how do you present a takings case to a federal court so that the federal courts can determine a) the scope of takings protection under the 5th amendment as to new issues, theories or fact patterns; and b) whether federal takings protection exceeds that provided by any particular state. Historically, these core federal questions would be litigated in federal court rather than in state court - it's only because a state court must reject the substantive claim and/or availability of damages to remedy the claim that the taking claims must be presented to a state court. If you can't effectively reserve your federal claims to litigate them in federal court, then the state courts (rather than federal courts) will get to determine what the US Constitution means.

But the federal courts have allowed state courts to develop the scope of the federal constitution in other areas - if San Remo loses here, it will indicate that the future of the takings clause protections will largely be determined by litigating federal questions in state court, with the first contact between the issues and the federal courts being when a state court decision is taken up in a petition for certiorari to the US Supreme Court.

Fla Supremes Strike "Hometown Democracy" Amendment - Ballot Summary Misleading

In a victory for anyone who actually cares about the process and contents of planning, but a close call on representative democracy and "ballot summary" writing, the Supremes bounced the Hometown Democracy Amendment in this opinion .

By a slim 4-3 majority, they found that the first line of the ballot summary - "Public participation in local government comprehensive land use planning benefits Florida’s natural resources, scenic beauty and citizens" - was misleading because comprehensive plans involve much more than these values. All 7 justices found that the amendment meets the single subject requirements.

Three justices, Quince, Lewis and Anstead, dissented from the determination that the ballot summary was misleading. Lewis wrote one dissent, that Anstead joined, and Quince wrote another, that Lewis and Anstead joined. The dissenters found the ballot summary no more misleading than others that had been approved :) and would have let the voters decide.

While I have some serious qualms about the reasoning, I have to admit relief that this won't go before the voters, as it would have resulted in the complete gutting of growth management. The sponsors seems to completely miss that if the planning process turns into a popularity contest (locking Florida into backward looking plans that screw up our ability to handle growth for decades to come), the Legislature could - and I believe would - simply repeal the consistency doctrine. Let the plan say whatever, and simply disconnect zoning and land use from it again.

Deference stops at the silly

Agencies - local government or state - just can't seem to stop themselves from reading statutes, ordinances and rules the way they wish they were written, as opposed to how they are in fact written. In this opinion, the 5th DCA reminds us (once again, into the breach, dear friends) that
a court is not required to defer to a construction that is unreasonable or is clearly erroneous - and provides some good cites on agency intepretations that fly in the face of the plain meaning of the statute and statutes that are written with unambigous text. A good one to keep in your arsenal.

RL

US S CT hears Kelo case - coverage/commentary

Last week, the big news was the US Supremes hearing argument in Kelo, the case involving the scope of "public use" in compensated takings - that is, whether local governments can simply take unblighted land from one private owner to then convey it to another private landowner. I've included some links below to briefs, news, commentaries and amicus below.

Links to the briefs (parties - some amicus available below)
http://www.abanet.org/publiced/preview/briefs/feb05.html#kelo

News:
CNN:
http://www.cnn.com/2005/LAW/02/21/scotus.eminent.domain/

Legal Times report from Law.com:
http://www.law.com/jsp/scm/PubArticleSCM.jsp?id=1109128218549

Supporters of the Kelos:
Institute for Justice’s site
http://www.ij.org/private_property/connecticut/

Cato Institute and Richard Epstein – amicus brief
http://www.cato.org/pubs/legalbriefs/kelovcityofnewlondon.pdf

A conservative but academic blog:
http://www.professorbainbridge.com/2005/02/will_leviathan_.html

Reason mag site (extreme libertarians)
http://www.reason.com/sullum/102904.shtml

Supporters of the City:
American Planning Association page and link to amicus brief:
http://www.planning.org/amicusbriefs/kelo.htm

Legal Times editorial by amicus author for Community Rights Council
http://www.law.com/jsp/scm/PubArticleSCM.jsp?id=1108389948908