In Konikov v. Orange County, here's the link, the 11th determined that Orange County improperly applied its ordinance requiring special exceptions for religious organizations to a rabbi who held relatively small services at his house.
It held that because the Rabbi could have held Boy Scout meeting or other civic meeting at the home with the same occupancy and frequency as the religious services that he held, the ordinance improperly singled out and discriminated against his religious practices.
Moreover, the court examined the ordinance for vagueness. It instructed the District Court to determine whether the term "religious institution" was impermissibly vague as a definition. More importantly, it found for Konikov on the question of whether the ordinance was subject to arbitrary enforcement. The court looked at record testimony that indicated that two different Code Enforcement Officers had differing views of the frequency of the meetings would constitute a violation. Because the Code was not specific enough to provide a single determination on a matter critical to the enforcement of an ordinance with 1st amendment implications, the panel upheld the lower court's determination that the ordinance was impermissibly vague.
THIS part of the opinion is really important and may have broader application. The court notes that chilling effect issues raise the bar on enforcement standards in ordinances that have 1st amendment implications, but this very simple standard is one that should be recognized in all litigation regarding local codes.
Sunday, June 26, 2005
11th: Whoops, Standing to Challenge any Part of Sign Ordinance Gives Standing to Challenge Overbreadth of All Parts
A panel of the 11th receeded from? over-ruled? the earlier Granite State v. City of Clearwater holding, and confirms that a plaintiff who has standing to challenge one part of a sign ordinance can challenge any other part on overbreadth grounds.
The case is Tanner Advertising Group v. Fayette County, GA, and here's the link. It's important because it allowed Tanner to attack the ordinance as a whole, when the off-site regulation section (that prevented Tanner from getting permits for the billboards it wanted) had been upheld as a valid time/place/manner regulation. By getting to go beyond that section and attack the rest of the ordinance's regulation of signs as a whole (which included significant restrictions on on-premises signs and political and other signs on residential property), Tanner had a claim (albeit untested) for enjoining enforcement of the whole ordinance.
What's interesting is that this panel over-ruled another panel's Clearwater holding, which said that the sign company in that case could attack only those portions of the ordinance that directly affected it. This panel essentially said that the earlier case was non-binding becaue it was inconsistent with earlier decisions. Here's the relevant section:
Interesting case for 1st amendment and local government lawyers, important case for folks doing lots of appellate work in front of the 11th Circuit.
The case is Tanner Advertising Group v. Fayette County, GA, and here's the link. It's important because it allowed Tanner to attack the ordinance as a whole, when the off-site regulation section (that prevented Tanner from getting permits for the billboards it wanted) had been upheld as a valid time/place/manner regulation. By getting to go beyond that section and attack the rest of the ordinance's regulation of signs as a whole (which included significant restrictions on on-premises signs and political and other signs on residential property), Tanner had a claim (albeit untested) for enjoining enforcement of the whole ordinance.
What's interesting is that this panel over-ruled another panel's Clearwater holding, which said that the sign company in that case could attack only those portions of the ordinance that directly affected it. This panel essentially said that the earlier case was non-binding becaue it was inconsistent with earlier decisions. Here's the relevant section:
In light of the strong precedent from the Supreme Court and this Circuit
concerning the doctrine of overbreadth which preceded the Clearwater decision,
we are compelled to follow our “prior precedent” or “earliest case” rule and uphold our decisions preceding Clearwater and disregard the narrow approach to the overbreadth doctrine employed by the Clearwater court. The prior precedent rule dictates that:
A prior panel decision of this Court is binding on subsequent panels and can be overturned only by the Court sitting en banc. . . . When faced with an intra-circuit split we must apply the “earliest case” rule, . . . a panel should look to the line of authority containing the earliest case, because a decision of a prior panel cannot be overturned by a later panel.
Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003) (citations and quotation marks omitted). Because this Court sitting en banc has not overruled St. Petersburg, Dimmitt, National, and Solomon, and because they came before the Clearwater decision, we hold that Tanner has standing to make a facial challenge to the Ordinance as a whole.
Interesting case for 1st amendment and local government lawyers, important case for folks doing lots of appellate work in front of the 11th Circuit.
Fla Supreme Ct won't Hear Vanderbilt Beach
Got a note from Larry Sellers today with a link to the Fla. Supreme Court's order declining to hear the appeal in the Vanderbilt Beach case. Too bad that this junk will stay on the books.
Kelo: Public Use = Legit Public Purpose - But what is legitimate?
The headlines are all ablaze with news that the US Supremes have radically expanded the authority to take property. Well, that's an ill-informed and extreme position, but the Court did apply its past precedents to a more broad kind of public program in Kelo v. City of New London - here's the link.
I don't want to delve into the property rights issues here. I think what's more interesting is the basis of Justice Kennedy's concurrence - the "swing" vote on this case.
Justice Kennedy's position is that the use of eminent domain would be improper under a "rational basis" type of test if the record demonstrated that the power was being used to benefit a particular person or corporation, rather than the public. He found that the record here - including the statements made by the dissenting Connecticut justices below - indicated that the purpose was to benefit the City and not Pfizer (the entity that will end up with the land). The fact that the taking was in conjunction with a comprehensive redevelopment plan seems to have loomed large in his consideration.
What's interesting is that his position would require the court's to scrutinize the actual record far more than in due process type rational basis cases. In other words, the actual facts and history, rather than post-hoc rationalizations, would be scrutinized. Flash back to his concurrence in Lingle, where he also opined that he wasn't stating that the statute there could pass due process tests.
SO - I think the big question may be this: Is Kennedy trying to get the Court to establish a new "hard look" type of test for substantive due process issues? If so, will he be able to get some of the conservative/moderate faction on board? The problem is that Scalia, Rhenquist and Thomas are generally legislative power hawks and Breyer - the putative liberal-- is generally with them on such issues. Souter is the skeptic; O'Conner (former state att'y general) tends not to like the substantive due process approach, and Bader-Ginsburg hasn't led on these issues. But it might be interesting to see if a Kennedy/Souter/Ginsburg wing, could swing two of the others to a more stringent view of due process.
It's important to note that Kennedy's view of the facts in Kelo is somewhat at odds with Justice O'Connor's recitation of the facts, which indicate that the redevelopment plan was generated from the point when Pfizer expressed interest in locating there. Seems to me that this indicates that the plan was to accommodate Pfizer. So one wonders what kind of record would "flip" Kennedy - would this case have gone the other way if the facts were more egregious or the public need of New London for redevelopment less obvious? If the four dissenters had taken up the intermediate scrutiny approach resulting in a remand for further factual inquiry into the public vs private benefits of the taking instead of trying to establish a harder line on what "public use" could mean (more principled but less flexible), might Kennedy have joined them?
But on the substance - a majority says that paid takings for "public use" are satisfied where there is a legitimate public purpose for them, even if that purpose is sale to a different private party for building a Ritz Carlton instead of a Motel 6, as Justice O'Connor described.
Personally, I'm a due process and review hawk, and I believe that effective judicial review creates real improvements to the results. In other words, when the government knows that it has to really justify its actions on public policy grounds and the facts, it is a better government. So I'm disappointed that the intermediate scrutiny proposal made by some of the amici didn't fly, because I think that would have better results, regardless of how the substantive standard is articulated. But I'm intrigued by Kennedy's due process arguments in two out of the three takings cases this year -- maybe there's some hope for meaningful review on the horizon if the right case presents itself.
I don't want to delve into the property rights issues here. I think what's more interesting is the basis of Justice Kennedy's concurrence - the "swing" vote on this case.
Justice Kennedy's position is that the use of eminent domain would be improper under a "rational basis" type of test if the record demonstrated that the power was being used to benefit a particular person or corporation, rather than the public. He found that the record here - including the statements made by the dissenting Connecticut justices below - indicated that the purpose was to benefit the City and not Pfizer (the entity that will end up with the land). The fact that the taking was in conjunction with a comprehensive redevelopment plan seems to have loomed large in his consideration.
What's interesting is that his position would require the court's to scrutinize the actual record far more than in due process type rational basis cases. In other words, the actual facts and history, rather than post-hoc rationalizations, would be scrutinized. Flash back to his concurrence in Lingle, where he also opined that he wasn't stating that the statute there could pass due process tests.
SO - I think the big question may be this: Is Kennedy trying to get the Court to establish a new "hard look" type of test for substantive due process issues? If so, will he be able to get some of the conservative/moderate faction on board? The problem is that Scalia, Rhenquist and Thomas are generally legislative power hawks and Breyer - the putative liberal-- is generally with them on such issues. Souter is the skeptic; O'Conner (former state att'y general) tends not to like the substantive due process approach, and Bader-Ginsburg hasn't led on these issues. But it might be interesting to see if a Kennedy/Souter/Ginsburg wing, could swing two of the others to a more stringent view of due process.
It's important to note that Kennedy's view of the facts in Kelo is somewhat at odds with Justice O'Connor's recitation of the facts, which indicate that the redevelopment plan was generated from the point when Pfizer expressed interest in locating there. Seems to me that this indicates that the plan was to accommodate Pfizer. So one wonders what kind of record would "flip" Kennedy - would this case have gone the other way if the facts were more egregious or the public need of New London for redevelopment less obvious? If the four dissenters had taken up the intermediate scrutiny approach resulting in a remand for further factual inquiry into the public vs private benefits of the taking instead of trying to establish a harder line on what "public use" could mean (more principled but less flexible), might Kennedy have joined them?
But on the substance - a majority says that paid takings for "public use" are satisfied where there is a legitimate public purpose for them, even if that purpose is sale to a different private party for building a Ritz Carlton instead of a Motel 6, as Justice O'Connor described.
Personally, I'm a due process and review hawk, and I believe that effective judicial review creates real improvements to the results. In other words, when the government knows that it has to really justify its actions on public policy grounds and the facts, it is a better government. So I'm disappointed that the intermediate scrutiny proposal made by some of the amici didn't fly, because I think that would have better results, regardless of how the substantive standard is articulated. But I'm intrigued by Kennedy's due process arguments in two out of the three takings cases this year -- maybe there's some hope for meaningful review on the horizon if the right case presents itself.
San Remo - You Have to Litigate Fed Takings Claims in State Court - But 4 Justices Want to Review the Core Issue
In San Remo Hotel v San Francisco , here's the link, the US Supremes upheld the 9th Circuit's determination that the plaintiffs were precluded from litigating their takings claims in federal court because the state court had claimed that it had reached the federal issues. The most important and clear holding - if you actually litigate a federal claim inside a state claim, even an England reservation won't preserve your ability to litigate it again in federal court.
The second clear holding - if the state court holds that state taking law is generally co-extensive with federal law, you probably are going to have to argue your federal claims in the state court case and then appeal to the US Supreme Court to resolve the question of whether there has been a violation of the US constitution (Fifth through Fourteenth). You'll want to have the state court clearly indicated its position with regard to what the federal law requires and how that relates to state law.
This is a procedural nightmare case that may be more of a cautionary tale about how not to litigate takings cases. Space and time preclude me from giving you the whole background, but suffice it to say that the plaintiffs were trying too hard to get to federal court, managed to let the state courts try some of the issues, failed to appeal the state supreme court holding (which indicated that federal issues has been tried along with the state issues), and were in a very bad position back in federal district court. Despite their England reservation, the federal issues had been heard (though perhaps not as a federal court would hear them - more on that later), and neither the 9th or the US Supremes were willing to create a massive whole in the full faith and credit statute to allow the plaintiffs to go back to federal court to argue that the state court had either not heard the federal claim or had got it wrong.
The core problem, of course, is that if landowners want to claim that federal law is being interpreted too narrowly, or for an expansion of federal precedents, they can't do it in a federal forum. While this doesn't violate any substantive right (as both the majority and concurring opinions point out), it does prevent the federal courts from engaging the facts and law in what is a pretty dynamic area.
The basis for all of this madness is the part of the Williamson County case that holds that federal takings claims aren't ripe unless a state court has refused to provide an inverse condemnation remedy under state law. This has, in prior cases, been held to apply to the particular facts and plaintiffs, requiring each taking case to be litigated in state court first. And, as this case demonstrates, once you're in state court, it's almost impossible to effectively reserve your federal claims and not try them, especially if the state courts claim that they interpret state takings law co-extensively with federal 5th amendment jurisprudence. Effectively, the state courts can use this to hijack the interpretation of the US Constitution, with cert to the US Supreme Court the only available correcting mechanism.
The four-member concurrence invited plaintiffs to raise anew whether this is the right interpretation of Williamson County. This means that there is a sufficient number (4) on the court to force a hearing on the matter if it comes back.
With only short consideration, I can see that such a case might be predicated one of three ways: either the plaintiff would allege in US District Court that there was no takings remedy at all for the plaintiff under state law, pointing to state precedents (kind of a facial issue), or that state law was claimed to be co-extensive with federal law but did not reach the harm done to the landowner under the facts (a kind of as-applied challenge), again citing precedents. The federal court would then either a) dismiss the case under Williamson for failure to give the state court a chance to conform its holdings to federal requirements, or b) allow them to proceed under the basis that established state law doesn't provide a remedy. Either course would run into standing problems under different interpretations of Williamson, run its way through the Circuit Court and have 4 members of the Supreme Court waiting to grant cert to hear it.
Another way to play this MIGHT be to try to plead both federal and state claims in US court, claiming supplemental jurisdiction to hear the state claim. Again, you'd get bounced (probably) on Williamson, and then bring it up through the appeals process. This may be the quickest way to get to having a cert petition before the high court.
The final approach might be to again try an England reservation and attempt to force the state court to avoid any direct interpretation of the 5th/14th in its rulings, and then go back into District Court to try the federal issues. But after San Remo, I don't give that theory much hope.
Ultimately, I don't see this case as a major blow to property rights, given the 4 member concurrence. I don't see it as the court's last word on the process of litigating takings claims because of the concurrence, and it may be that we'll see a very different kind of case with different results soon. In the meantime, the safest route will be to litigate your federal claims in state court, knowing that you're only remedy for a misapplication of federal law will be the low-probability of cert review by the US Supremes.
The second clear holding - if the state court holds that state taking law is generally co-extensive with federal law, you probably are going to have to argue your federal claims in the state court case and then appeal to the US Supreme Court to resolve the question of whether there has been a violation of the US constitution (Fifth through Fourteenth). You'll want to have the state court clearly indicated its position with regard to what the federal law requires and how that relates to state law.
This is a procedural nightmare case that may be more of a cautionary tale about how not to litigate takings cases. Space and time preclude me from giving you the whole background, but suffice it to say that the plaintiffs were trying too hard to get to federal court, managed to let the state courts try some of the issues, failed to appeal the state supreme court holding (which indicated that federal issues has been tried along with the state issues), and were in a very bad position back in federal district court. Despite their England reservation, the federal issues had been heard (though perhaps not as a federal court would hear them - more on that later), and neither the 9th or the US Supremes were willing to create a massive whole in the full faith and credit statute to allow the plaintiffs to go back to federal court to argue that the state court had either not heard the federal claim or had got it wrong.
The core problem, of course, is that if landowners want to claim that federal law is being interpreted too narrowly, or for an expansion of federal precedents, they can't do it in a federal forum. While this doesn't violate any substantive right (as both the majority and concurring opinions point out), it does prevent the federal courts from engaging the facts and law in what is a pretty dynamic area.
The basis for all of this madness is the part of the Williamson County case that holds that federal takings claims aren't ripe unless a state court has refused to provide an inverse condemnation remedy under state law. This has, in prior cases, been held to apply to the particular facts and plaintiffs, requiring each taking case to be litigated in state court first. And, as this case demonstrates, once you're in state court, it's almost impossible to effectively reserve your federal claims and not try them, especially if the state courts claim that they interpret state takings law co-extensively with federal 5th amendment jurisprudence. Effectively, the state courts can use this to hijack the interpretation of the US Constitution, with cert to the US Supreme Court the only available correcting mechanism.
The four-member concurrence invited plaintiffs to raise anew whether this is the right interpretation of Williamson County. This means that there is a sufficient number (4) on the court to force a hearing on the matter if it comes back.
With only short consideration, I can see that such a case might be predicated one of three ways: either the plaintiff would allege in US District Court that there was no takings remedy at all for the plaintiff under state law, pointing to state precedents (kind of a facial issue), or that state law was claimed to be co-extensive with federal law but did not reach the harm done to the landowner under the facts (a kind of as-applied challenge), again citing precedents. The federal court would then either a) dismiss the case under Williamson for failure to give the state court a chance to conform its holdings to federal requirements, or b) allow them to proceed under the basis that established state law doesn't provide a remedy. Either course would run into standing problems under different interpretations of Williamson, run its way through the Circuit Court and have 4 members of the Supreme Court waiting to grant cert to hear it.
Another way to play this MIGHT be to try to plead both federal and state claims in US court, claiming supplemental jurisdiction to hear the state claim. Again, you'd get bounced (probably) on Williamson, and then bring it up through the appeals process. This may be the quickest way to get to having a cert petition before the high court.
The final approach might be to again try an England reservation and attempt to force the state court to avoid any direct interpretation of the 5th/14th in its rulings, and then go back into District Court to try the federal issues. But after San Remo, I don't give that theory much hope.
Ultimately, I don't see this case as a major blow to property rights, given the 4 member concurrence. I don't see it as the court's last word on the process of litigating takings claims because of the concurrence, and it may be that we'll see a very different kind of case with different results soon. In the meantime, the safest route will be to litigate your federal claims in state court, knowing that you're only remedy for a misapplication of federal law will be the low-probability of cert review by the US Supremes.
Saturday, June 11, 2005
A Gross Invitation to Abuse: No Injunction Against Deliberate Gov't Flooding of Property w/out Prior Taking
This is one of those cases where you just shake your head.
Brevard County is admittedly flooding a landowner's property for mosquito control purposes without permission and without commencing an eminent domain action. The landowner sued for injunction and also for inverse condemnation should the flooding be allowed to continue.
The trial court held, and the 5th DCA affirmed, that because the inverse condemnation remedy is available, the landowner has a remedy at law and is not entitled to a temporary injunction against the flooding. The case is DiChristopher v. Bd. of County Commissioners, here is the opinon. It also noted that the public interest is not served by the injunction, because the mosquito control program promotes public health.
First, it's just wrong that the government gets to commit an intentional tort and can't be stopped simply because somewhere down the line a legal remgy MIGHT be available. Trespass is a tort, damages are available for past trespasses, but that doesn't stop a court from being able to order enjoin future trespasses. But more importantly, what we're seeing is the government just going ahead and flooding this land and saying "so sue me." THEY ADMIT THAT THEY ARE COMMITTING THIS TORT AND TAKING, and refuse to do the LEGALLY REQUIRED act of eminent domain. And what happens now if the trial court later finds that because the flooding is periodic, it's a trespass, not a taking? (unlikely, but possible). Does the injunction count get reinstated?
SO - what we have now is a new claim by the government that even absent an emergency, act of war, etc., they can invade and take anyone's property anytime they want, and the only response available is a multi-year, complex suit in inverse condemnation -- no one can order them to remove themselves or do the right thing by initiating a takings claim.
The problem is clear: absent the availability of injunction to restrain the government from trespassing (or even siezing) property, what reason does the government have to bother with eminent domain? Hell, let's just start building roads, etc., over people's property and see who bothers to sue! Maybe we can get away with getting a bunch of free land, and maybe courts will hold that in inverse condemnation you don't get business damages and other pesky substantive and procedural rights that go along with eminent domain actions (like 12 person juries).
And folks wonder why there's such a "property rights" movement in this country.
Brevard County is admittedly flooding a landowner's property for mosquito control purposes without permission and without commencing an eminent domain action. The landowner sued for injunction and also for inverse condemnation should the flooding be allowed to continue.
The trial court held, and the 5th DCA affirmed, that because the inverse condemnation remedy is available, the landowner has a remedy at law and is not entitled to a temporary injunction against the flooding. The case is DiChristopher v. Bd. of County Commissioners, here is the opinon. It also noted that the public interest is not served by the injunction, because the mosquito control program promotes public health.
First, it's just wrong that the government gets to commit an intentional tort and can't be stopped simply because somewhere down the line a legal remgy MIGHT be available. Trespass is a tort, damages are available for past trespasses, but that doesn't stop a court from being able to order enjoin future trespasses. But more importantly, what we're seeing is the government just going ahead and flooding this land and saying "so sue me." THEY ADMIT THAT THEY ARE COMMITTING THIS TORT AND TAKING, and refuse to do the LEGALLY REQUIRED act of eminent domain. And what happens now if the trial court later finds that because the flooding is periodic, it's a trespass, not a taking? (unlikely, but possible). Does the injunction count get reinstated?
SO - what we have now is a new claim by the government that even absent an emergency, act of war, etc., they can invade and take anyone's property anytime they want, and the only response available is a multi-year, complex suit in inverse condemnation -- no one can order them to remove themselves or do the right thing by initiating a takings claim.
The problem is clear: absent the availability of injunction to restrain the government from trespassing (or even siezing) property, what reason does the government have to bother with eminent domain? Hell, let's just start building roads, etc., over people's property and see who bothers to sue! Maybe we can get away with getting a bunch of free land, and maybe courts will hold that in inverse condemnation you don't get business damages and other pesky substantive and procedural rights that go along with eminent domain actions (like 12 person juries).
And folks wonder why there's such a "property rights" movement in this country.
Just what standard applies to 2d tier review of legal issues?
In Lakewood Travel Park v City of Davie, here's the opinion, the Fourth denied a "2d tier" petition for certiorari against a circuit court denial of cert. The case involved a challenge to a site plan approval issued by the City of Davie.
Apparently, the site plan would be accessed through an off-site drive, and the core issue was whether the site/development standards (like buffering, etc.) applied to that drive.
Without getting to the merits of the case either way (there's really not enough detail in the opinion to help), here's the problem language:
I know of no standard that requires a person attacking the issuance of a development order to show that the action "clearly violated" the code. The action either did or did not violate the Code, which is a seperate issue from what the Code does or does not require. The courts' job is to ensure that the legal standards that have been, are, or will be applied are understood and properly intepreted.
The case may or may not have been properly decided. But without a clear recitation of the standard that was applied, why it was applied, and the language in the Code to which it was applied, we cannot tell the answer.
Sigh.
Apparently, the site plan would be accessed through an off-site drive, and the core issue was whether the site/development standards (like buffering, etc.) applied to that drive.
Without getting to the merits of the case either way (there's really not enough detail in the opinion to help), here's the problem language:
So what, exactly, standard of review did the court apply to the legal interpretation of the Code? If the Code was not ambiguous, then the court should have applied a non-deferential review. If the Code was ambiguous, then it should have deferred to the agency's intepretation unless that interpretation is clearly erroneous. (See the Dixon v. Jacksonville case).Upon a review of the record, we cannot say that the failure of the Town to
require the owner of the property on which the easement was situated to
authorize the development plan (which would involve paving the easement) or the
failure to apply the Town’s environmental buffer requirements to the access road
clearly violated the town code.
I know of no standard that requires a person attacking the issuance of a development order to show that the action "clearly violated" the code. The action either did or did not violate the Code, which is a seperate issue from what the Code does or does not require. The courts' job is to ensure that the legal standards that have been, are, or will be applied are understood and properly intepreted.
The case may or may not have been properly decided. But without a clear recitation of the standard that was applied, why it was applied, and the language in the Code to which it was applied, we cannot tell the answer.
Sigh.
3d DCA - Trial Court Must Issue Injunction against Farm Parties
In Miami-Dade County v. Fernandez, here's the link, the 3d DCA overturned a trial court's refusal to grant a preliminary injunction against a landowner in a rural, agricultural zoned property who had been hosting children's parties that included horseback rides.
The County, after complaints, determined that having parties that involved the use of agricultural animals in an agricultural district was a "commercial party" use not permitted under the agricultural zoning and requiring an unusual use.
But when a circuit court rejected a hearing officer's determination that the landowner was in violation of the zoning code for engaging in an activity not permitted by the zoning district as not supported by competent substantial evidence (we don't know about the legal conclusion), the County instead went straight back to the court with a suit for injunction under a different provision of the Code (that requires a permit for a "new use"). The trial court refused to grant a preliminary injunction while the landowners attempted to get the use permit.
The 3d reversed, noting that when the government alleges illegal conduct, it does not have to prove irreparable harm. It also found that the earlier action against the landowners did not bind the County based on collateral estoppel or res judicata because the injunction action was brought for a violation of the different section of the Code.
BUT let's look at what really happened: the County alleged that the landowners were engaged in a use not permitted by the Zoning Code, and this was rejected by the court. The County then sued for injunction because they didn't have an "Occupational Use Permit" - which the County was refusing to grant them because the County felt that the action wasn't permitted - the position that was rejected in the other action. And the 3d demanded that the court issue the injunction, even though it is clearly arguable that the County's failure (or refusal) to grant the use permit is a violation of the law of the case in the earlier action.
In short, the County is making these folks jump through hoops in multiple venues to deny them a use that it seems that a circuit court determined was permissible.
Good power to have if the issue is a real matter of public health, safety and welfare. But to ban giving rides and parties on agriculturally zoned property?
The County, after complaints, determined that having parties that involved the use of agricultural animals in an agricultural district was a "commercial party" use not permitted under the agricultural zoning and requiring an unusual use.
But when a circuit court rejected a hearing officer's determination that the landowner was in violation of the zoning code for engaging in an activity not permitted by the zoning district as not supported by competent substantial evidence (we don't know about the legal conclusion), the County instead went straight back to the court with a suit for injunction under a different provision of the Code (that requires a permit for a "new use"). The trial court refused to grant a preliminary injunction while the landowners attempted to get the use permit.
The 3d reversed, noting that when the government alleges illegal conduct, it does not have to prove irreparable harm. It also found that the earlier action against the landowners did not bind the County based on collateral estoppel or res judicata because the injunction action was brought for a violation of the different section of the Code.
BUT let's look at what really happened: the County alleged that the landowners were engaged in a use not permitted by the Zoning Code, and this was rejected by the court. The County then sued for injunction because they didn't have an "Occupational Use Permit" - which the County was refusing to grant them because the County felt that the action wasn't permitted - the position that was rejected in the other action. And the 3d demanded that the court issue the injunction, even though it is clearly arguable that the County's failure (or refusal) to grant the use permit is a violation of the law of the case in the earlier action.
In short, the County is making these folks jump through hoops in multiple venues to deny them a use that it seems that a circuit court determined was permissible.
Good power to have if the issue is a real matter of public health, safety and welfare. But to ban giving rides and parties on agriculturally zoned property?
Monday, May 30, 2005
An Insanely Bad Decision from the 11th
On April 11 (sorry, I'm a bit behind), the 11th Circuit issued this opinion in Lewis et al v. Brown, --- F.3d ----, 2005 WL 1159155 . The court not only wrongly (IMHO) applied McKinney v. Pate to hold that land use decisions aren't protected by substantive due process, it actually held that the federal courts could (and clearly would) make their own determinations of whether a state actor's decision was executive as opposed to legislative, regardless of state treatment of the decision.
The case involved the denial of a rezoning. The plaintiffs claimed that the denial violated their substantive due process rights as it was arbitrary and capricious because the requested zoning was consistent with the local comprehensive plan. In its apparent determination to get out of its constitutionally and statutorily mandated role as protectors of civil rights, the court made two convenient but serious errors in law.
First, the court distorted not one, but two doctrines to claim that substantive due process isn't available to executive decisions regarding land use regulation. It first cited McKinney v. Pate and Palko v Connecticut for the true proposition that due process protects fundamental rights, those implicit in a concept of ordered liberty. Of course, that doctrine applies to the determination of when due process applies to the deprivation of LIBERTY, not property.
It then went on to cite the post-Roth "new property" cases - particularly McKinney - for the proposition that due process does not protect "state created rights" but only those created by the constitution, and cites an earlier 11th Circuit case for the proposition that "land use rights like zoning restrictions" fall into that category. So the court basically lumps the right to use and enjoy property - guaranteed by most state constitutions (definitely Florida's) and implied by the Federal Constitution - in with "creature of statute" interests like welfare.
BOSH AND DOUBLE BOSH. Under common law, the right to put land to any lawful use was an essential component of the property right in land. This has been repeatedly and historically held to mean that that any restriction on the right to use land was subject to due process review. That is, one could be "deprived" of the right to use property in a particular way by a regulation, but that due process attached to the regulation AND ITS ADMINISTRATION. Any other view holds that the decision to regulate a use of land removes it from the set of rights in property as opposed to merely regulating it - and I know of no decision that has made that determination and several that hold against it (see Moorman v. DCA, for example).
The critical distinction between due process and takings has been that in determining whether a regulatory taking had occurred, the "whole property" was examined (both in scope and set of uses), but for due process analysis, every limitation on an historic right in land was a "deprivation" subject to due process review. So the rights in land that are regulated by zoning and other land use regulations are "rights" and "property," (not "mere expectancies" or "state created interests") and insofar as the regulation denies or limits them, it must do so subject to due process review, both substantive and procedural.
And the idea that "zoning rights" or "land use" rights are state-created (in the Roth sense) is simply ludicrous. Property rights in land were constitutionally recognized for federal purposes both in the Fifth Amendment and in the Fourteenth. Even if the boundaries of those rights (nuisance law, for example) may be altered by the state, the core CONSTITUTIONAL right to own and use property is one that has always been recognized in real property and even in personal property.
So, the courts completely miss the proper analysis when they look at a permit or other regulatory action and don't look behind it to whether there is an historic right being regulated (deprived). At its root, the post-Roth "new property" cases simply should not be applied when a common law and constitutionally recognized right is being regulated.
This argument obviously needs all the requisite cites and niceties to become a nice Bar Journal or Law Review piece, but it's the consistent representation of our legal history. What's not consistent is the federal courts' activist hostility to protecting our civil rights in property.
Which leads us to the other gross distortion. The court applied the so-called "functional analysis," which looks at the scope of application of a decision, to hold that any land use decision that affects only a single person (or limited group of persons) is executive in nature and therefore falls into the McKinney v. Pate trap. OK folks, the federal court held that for federal analysis, it can declare any land use decision executive on its own, without any resort to state-law analysis. Talk about an activist judiciary!
Under the McKinney analysis, a person subject to an executive decision only gets the procedural due process rights provided by the statute or rule that authorizes the decision. It was designed for use in employment benefits and welfare cases, where the "entitlement" (i.e., the property interest created by the statute) is tied to the processes that create and protect it. Here, there are only the state enabling laws that authorize local governments to regulate land (Georgia's, in this case). So where do the procedural rights come from? I guess the court doesn't care, it didn't bother to point to any source of them.
Bad opinion. Bad precedent, bad analysis, and bad for civil rights. I hope this gets appealed en banc and I hope this gets taken up to the Supremes.
The case involved the denial of a rezoning. The plaintiffs claimed that the denial violated their substantive due process rights as it was arbitrary and capricious because the requested zoning was consistent with the local comprehensive plan. In its apparent determination to get out of its constitutionally and statutorily mandated role as protectors of civil rights, the court made two convenient but serious errors in law.
First, the court distorted not one, but two doctrines to claim that substantive due process isn't available to executive decisions regarding land use regulation. It first cited McKinney v. Pate and Palko v Connecticut for the true proposition that due process protects fundamental rights, those implicit in a concept of ordered liberty. Of course, that doctrine applies to the determination of when due process applies to the deprivation of LIBERTY, not property.
It then went on to cite the post-Roth "new property" cases - particularly McKinney - for the proposition that due process does not protect "state created rights" but only those created by the constitution, and cites an earlier 11th Circuit case for the proposition that "land use rights like zoning restrictions" fall into that category. So the court basically lumps the right to use and enjoy property - guaranteed by most state constitutions (definitely Florida's) and implied by the Federal Constitution - in with "creature of statute" interests like welfare.
BOSH AND DOUBLE BOSH. Under common law, the right to put land to any lawful use was an essential component of the property right in land. This has been repeatedly and historically held to mean that that any restriction on the right to use land was subject to due process review. That is, one could be "deprived" of the right to use property in a particular way by a regulation, but that due process attached to the regulation AND ITS ADMINISTRATION. Any other view holds that the decision to regulate a use of land removes it from the set of rights in property as opposed to merely regulating it - and I know of no decision that has made that determination and several that hold against it (see Moorman v. DCA, for example).
The critical distinction between due process and takings has been that in determining whether a regulatory taking had occurred, the "whole property" was examined (both in scope and set of uses), but for due process analysis, every limitation on an historic right in land was a "deprivation" subject to due process review. So the rights in land that are regulated by zoning and other land use regulations are "rights" and "property," (not "mere expectancies" or "state created interests") and insofar as the regulation denies or limits them, it must do so subject to due process review, both substantive and procedural.
And the idea that "zoning rights" or "land use" rights are state-created (in the Roth sense) is simply ludicrous. Property rights in land were constitutionally recognized for federal purposes both in the Fifth Amendment and in the Fourteenth. Even if the boundaries of those rights (nuisance law, for example) may be altered by the state, the core CONSTITUTIONAL right to own and use property is one that has always been recognized in real property and even in personal property.
So, the courts completely miss the proper analysis when they look at a permit or other regulatory action and don't look behind it to whether there is an historic right being regulated (deprived). At its root, the post-Roth "new property" cases simply should not be applied when a common law and constitutionally recognized right is being regulated.
This argument obviously needs all the requisite cites and niceties to become a nice Bar Journal or Law Review piece, but it's the consistent representation of our legal history. What's not consistent is the federal courts' activist hostility to protecting our civil rights in property.
Which leads us to the other gross distortion. The court applied the so-called "functional analysis," which looks at the scope of application of a decision, to hold that any land use decision that affects only a single person (or limited group of persons) is executive in nature and therefore falls into the McKinney v. Pate trap. OK folks, the federal court held that for federal analysis, it can declare any land use decision executive on its own, without any resort to state-law analysis. Talk about an activist judiciary!
Under the McKinney analysis, a person subject to an executive decision only gets the procedural due process rights provided by the statute or rule that authorizes the decision. It was designed for use in employment benefits and welfare cases, where the "entitlement" (i.e., the property interest created by the statute) is tied to the processes that create and protect it. Here, there are only the state enabling laws that authorize local governments to regulate land (Georgia's, in this case). So where do the procedural rights come from? I guess the court doesn't care, it didn't bother to point to any source of them.
Bad opinion. Bad precedent, bad analysis, and bad for civil rights. I hope this gets appealed en banc and I hope this gets taken up to the Supremes.
Tuesday, May 24, 2005
US Supremes Clarify Takings Rules by Limiting Agins' "Substantial Relationship" Test
The US Supreme Court issued its opinion in the first of the three takings cases it will rule on this term. In Lingle v. Chevron, the court was faced with the issue of whether the "substantially advances a legitimate state interest" test, articulated in Agins v City of Tiburon, and repeated in Nollan, Dolan, and more recently in Monterey v. Del Monte Dunes.
In doing so, Justice O'Connor, writing for a unanimous court, seems to have taken a stab at clarifying and categorizing takings law going forward. In this case, the "substantially advances" test had been used to strike down a Hawaiian statute that imposed rent controls on oil-company owned gas stations, because Chevron demonstrated to the satisfaction of the trial judge that the provision did not advance the state's interest in controlling consumer oil prices, and therefore was a taking. The court pretty much rejected the proposition out of hand (calling it "not only doctrinally untenable as a takings test [but also that] its application as such would also present serious practical difficulties."), but only after taking some time to clarify why the analysis here was a substantive due process analysis misplaced into takings claims.
This ruling was somewhat expected, but I think the big news is Justice O'Connor's related analyses. Unsurprisingly, there are three kinds of regulatory takings, and a special case. The first, and most general, is the Penn Central balancing test. The second is the Loretto style invasion, which is a categorical taking. And the third, of course, is the categorical Lucas taking when a regulation takes all economically beneficial use of the property. These three inquiries (as Justice O'Connor called them) "share a common touchstone. Each aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly expropriates private property or ousts the owner from his domain. Accordingly, each of these tests focuses on the severity of the burden that government imposes upon private property rights."
Three kinds? What about Nollan and Dolan?
In Part III of the opinion, Justice O'Connor takes some pain to clarify Nolan and Dolan, but in doing so raises many questions. These cases, she reasons, "involved Fifth Amendment takings challenges to adjudicative land-use exactions - specifically, government demands that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a building permit." She notes that in both cases, the expropriation of the easement would have been a taking, but goes on to not that Dolan held that "an adjudicative exaction requiring dedication of private property must also be 'roughly proportional' . . . both in nature and extent to the impact of the proposed development." [sorry about the depth-of-quote there - everyone should read this on their own anyway.] She then ties them both back to the unconstitutional conditions theory, characterizing the "problem" as the government's demand that they give up their right to be compensated for the taking of the property in exchange for a "discretionary benefit." [I somehow doubt that her choice to modify the term "exaction" twice with the term "adjudicative" was accidental.]
This leaves us in a pickle as to whether Nollan and Dolan apply a) to ordinances or statutes that set forth exaction requirements and levels (i.e., what makes an exaction adjudicative and when would legislative exactions be covered) or b) when money rather than easements, dedications or other transfers of real property interests are involved. It could be argued that by focusing on the unconstitutional condition aspect, she actually has opened the door wider to argue this in other contexts, but it also could be argued that impact fees have been pulled out of the protection of the takings clause.
What we have here is (perhaps finally) a takings case that will help law professors and land use lawyers alike categorize the substantive takings approaches and when they should be used. By purging the tempting but problematic "substantially advances" test and putting Dolan and Nollan off into the "unconstitutional conditions" corner (rather than being another form of takings analyis), Justice O'Connor has provided some clarity to a longstanding analytical quagmire.
Let's see if the court provides similar procedural simplification when it tackles the San Remo Hotel case.
In doing so, Justice O'Connor, writing for a unanimous court, seems to have taken a stab at clarifying and categorizing takings law going forward. In this case, the "substantially advances" test had been used to strike down a Hawaiian statute that imposed rent controls on oil-company owned gas stations, because Chevron demonstrated to the satisfaction of the trial judge that the provision did not advance the state's interest in controlling consumer oil prices, and therefore was a taking. The court pretty much rejected the proposition out of hand (calling it "not only doctrinally untenable as a takings test [but also that] its application as such would also present serious practical difficulties."), but only after taking some time to clarify why the analysis here was a substantive due process analysis misplaced into takings claims.
This ruling was somewhat expected, but I think the big news is Justice O'Connor's related analyses. Unsurprisingly, there are three kinds of regulatory takings, and a special case. The first, and most general, is the Penn Central balancing test. The second is the Loretto style invasion, which is a categorical taking. And the third, of course, is the categorical Lucas taking when a regulation takes all economically beneficial use of the property. These three inquiries (as Justice O'Connor called them) "share a common touchstone. Each aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly expropriates private property or ousts the owner from his domain. Accordingly, each of these tests focuses on the severity of the burden that government imposes upon private property rights."
Three kinds? What about Nollan and Dolan?
In Part III of the opinion, Justice O'Connor takes some pain to clarify Nolan and Dolan, but in doing so raises many questions. These cases, she reasons, "involved Fifth Amendment takings challenges to adjudicative land-use exactions - specifically, government demands that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a building permit." She notes that in both cases, the expropriation of the easement would have been a taking, but goes on to not that Dolan held that "an adjudicative exaction requiring dedication of private property must also be 'roughly proportional' . . . both in nature and extent to the impact of the proposed development." [sorry about the depth-of-quote there - everyone should read this on their own anyway.] She then ties them both back to the unconstitutional conditions theory, characterizing the "problem" as the government's demand that they give up their right to be compensated for the taking of the property in exchange for a "discretionary benefit." [I somehow doubt that her choice to modify the term "exaction" twice with the term "adjudicative" was accidental.]
This leaves us in a pickle as to whether Nollan and Dolan apply a) to ordinances or statutes that set forth exaction requirements and levels (i.e., what makes an exaction adjudicative and when would legislative exactions be covered) or b) when money rather than easements, dedications or other transfers of real property interests are involved. It could be argued that by focusing on the unconstitutional condition aspect, she actually has opened the door wider to argue this in other contexts, but it also could be argued that impact fees have been pulled out of the protection of the takings clause.
What we have here is (perhaps finally) a takings case that will help law professors and land use lawyers alike categorize the substantive takings approaches and when they should be used. By purging the tempting but problematic "substantially advances" test and putting Dolan and Nollan off into the "unconstitutional conditions" corner (rather than being another form of takings analyis), Justice O'Connor has provided some clarity to a longstanding analytical quagmire.
Let's see if the court provides similar procedural simplification when it tackles the San Remo Hotel case.
Subscribe to:
Posts (Atom)
