4th DCA Mis-Cites GBV to Overrule Irvine and Most Administrative Law

OK, back on my soapbox.

The Fourth DCA committed a frequent but grave error in Wal-Mart v. Town of Davie when it cited the Florida Supreme Court's opinion in G.B.V. Int'l for the proposition that written findings are not required in quasi-judicial decisions involving zoning and land use.

Fact: there is langauge to that effect in G.B.V. ,and in fact a disagreement among the justices, but it is pure dicta. Fact: No party raised or briefed the issue in that case, or in the Florida National Properties opinion that was released the week before G.B.V. What happened is that Justice Pariente - quite rightly, and consistent with ALL prior cases except Snyder -- raised the absence of written findings as so inhibiting to effective judicial review as to deny due process. The other justices didn't agree - but agreed to refer the matter to the Justice Administration Commission, which in turn found no authority to adopt rules on the matter.

Fact: Prior to Snyder, every reported cases in Florida that can be found (and pretty much every federal case on administrative proceedings) held that written findings were a due process requirement because effective judicial review is impossible without them. See the cases cited by Justice Pariente in G.B.V., but more importantly, see Snyder and Irvine v. Duval County .

Fact: The controlling decision under Florida law for all quasi-judicial decision except rezoning remains Irvine, where the Supreme Court reversed the 1st DCA and approved the dissent below and where the 1st DCA on remand adopted the dissent as its opinion. That dissent established not only the "burden shifting test" for special exceptions (and other quasi-judicial decisions) but clearly and unequivocally reiterated longstanding Florida law that required written findings in all quasi-judicial zoning decisions.

Fact: Snyder declined to apply the Irvine written findings rule to rezonings, but never held that the findings requirement did not apply to any other decision. Nor could it, because that broad issue was not raised below -- the argument briefed and at issue in Snyder was only whether the Irvine rule applied to rezonings, NOT whether it was the right statement of the law.

Law: Under standards of appellate review, dicta and unbriefed issues are NOT precedent and NOT binding on later courts. See. e.g., Schmitt v. State, 590 So.2d 404, 414 ( Fla. 1991). As the Florida Supreme Court stated the rule:

We take this opportunity to expressly state that this Court does not
intentionally overrule itself sub silentio. Where a court encounters an express
holding from this Court on a specific issue and a subsequent contrary dicta
statement on the same specific issue, the court is to apply our express holding
in the former decision until such time as this Court recedes from the express
holding. Where this Court's decisions create this type of disharmony within the case law, the district courts may utilize their authority to certify a question of great
public importance to grant this Court jurisdiction to settle the law.

Puryear v. State, 810 So.2d 901, 905-906 (Fla. 2002).

Snyder did NOT expressly overrule its earlier decision in Irvine, or the First District's express ruling. It simply declined to extend it. The dicta in Florida National Properties and G.B.V. did not and could not overrule Irvine or extend Snyder because the issue of written findings was not before the court.

Therfore, the Fourth District's opinion in this case is legally wrong, as are the numerous circuit court decisions that "follow" Snyder and refuse to follow Irvine.

Differential Treatment of "Assembly" for Commercial and Religious Uses Violates RLUIPA as a Matter of Law

In Chabad of Nova v. City of Cooper City, the Southern District found on a motion for judgment on the pleadings that the city was liable under RLUIPA. Various commercial districts allowed uses that involve "assembly" of people -- like restaurants, theaters, clubs, etc. Religious assemblies were prohibitted, however.

While the city claimed that "business assemblies" were equally prohibitted, the court saw this as pretextual at best and found liability based on the city's admissions that theaters, restaurants and similar uses were permitted.

Fla S Ct rejects Review in Pennisular Properties: 70.51 Stays Time for Filing Cert

In City of Bradenton v. Pennisular Properties, the Fla. Supreme Court rejected the City's appeal. This leaves the 2d DCA's opinion in force, which means that filing a request for mediation under 70.51, Fla. Stat. stays the time for filing for certiorari review.

The 70.51 process provides for mediation and then what I call a "magistration," where a special magistrate will determine whether a government decision is unreasonable or unfairly burdens property. The magistrate's recommendation (or a settlement) can be the basis of a local government action to implement the settlement, including new variances, etc.

The petition is a simple 2 page affair, cheap and easy to do.

Many local government attorneys dislike this process - they don't like the idea of tainting a nice clean denial with messy processes with standards that don't unduly favor the government.

But by allowing more time to not only file the cert petition, but also to line up other defenses or causes of action (your Bert Harris claim, for example), filing a 70.51 provides a means for bringing more firepower to bear on the mediation process and increase the likelihood of settlement without filing the litigation. By holding that the stay provision applies to certiorari, the Second assured the usefulness of this tool, which should be in every developer attorney's toolbox.

Mobile Home Statute Doesn't Apply if Eviction Before Rezoning

In Celebration Pointe Townhomes v. Rancho Margate Mobile Home Park, the Fourth District held that the owner of a mobile home park is not subject to the relocation and alternate site availability requirements of Chapter 723 do not apply where the owner of the park evicts residents for a statutorily acceptable reason and process before applying for rezoning.

Illegal Exactions Protected by Bond Validation

In Frederick et al v. Northern Palm Beach County Improvement District et al, the District Court upheld the circuit court's dismissal of claims raised by various homeowners who claimed that they were subjected to unconstitutional exactions.

The homeowner's predecessors in interest (the developer) cut a deal with the county to set up an improvement district to fund not only the roads internal to the project, but also to build a major section of arterial road. While the project was still under the developer's control, an assessment was levied (for 20 years) against property in the development and the bonds were validated.

None of the other developments who benefit from the improved major road were assessed. Later, homeowners subject to the assessment -- understandably annoyed when they realized they were paying for infrastructure for the entire area, and effectively subsidizing the other developments-- sued to establish that the assessments were illegal because they were not proportionate to the impacts of the paying development.

The circuit court dismissed, holding that the statute of limitations had run the validation of the bonds precluded later challenges to the assessments. The District Court affirmed, holding that the homeowners were bound by their predecessor's knowledge of the date of the validation/action.

In the case now before us, we must balance the interests of the Homeowners in
receiving notice of the exclusive nature of the Unit 18 assessments against the
public policy concerns highlighted in H&B Builders. Weighing these competing
interests, we find that, on these facts, the Homeowners interests are outweighed
by the need of the District for certainty in creating water management plans and
funding those plans. As a result, the approval and creation of the assessments
and impact fees here by the District provided sufficient notice to then existing
and future homeowners of their obligations. This is true even if the assessments
and impact fees were improperly levied. See Ves Carpenter, 422 So. 2d 342;
Spring Lake Improvement District, 814 So. 2d 1077.

So, clearly, sue before you buy - or at least be sure that your developer did.

Court permits creation of "aspirational policies" in comp plans

In Indian Trails Improvement District v. Department of Community Affairs , the 5th DCA approved the County's effective planning-based takeover of an independent utility's franchise area by creating a new category of "aspirational policies" which the local government can adopt with no supporting data and analysis.

What is an aspirational policy? Why would it be needed in a comp plan? What happens when the local government starts giving it regulatory meaning as justification for other actions?

On the other hand, the Court did hold that indirect impacts on a business or other interest can be sufficient to establish that a person is "aggreived or adversely affected" for standing.

Failure to Appear or Raise Issues at QJ Hearing Does not Preclude Standing under 163.3215

In Dunlop v. Orange County, the 5th DCA held that a aggreived neighbor is not precluded by waiver from demonstrating standing and raising issues in a de novo proceeding under 163.3215 for failure to do so in the quasi-judicial proceeding before the local agency.

Yeah, it's obvious: if you have a de novo hearing, all of the issues are de novo. Didn't stop Orange County from claiming waiver and preclusion to the apparently clueless circuit court.

Just another example that the circuit courts (improperly, in way too many cases) trust the positions of local government attorneys over their private counterparts, whether they are representing developers or neighbors. The result: effectively unreviewable discretion. De novo proceedings under 163.3215 are one of the exceptions -- too bad the courts refuse to give effect to the 2002 amendments and allow landowners to challenge improper interpretations of the plan to deny development orders.

1st DCA- Gov & Cabinet Blows Call on "Not in Compliance" Plan - Now What?

In an interesting decision in Don and Pamela Ashley v. State Administration Commission, et al, the First District upheld the determination by the ALJ and Dep't of Community Affairs that the plan wasn't in compliance, but reversed a determination that two land use categories created by the amendments were not "mixed use" land use categories that need additional policies governing permitted density, intensity and mix of uses.

A read of the opinion makes this seem like a no-brainer, but . . . . ? The amended plan created "rural village" and "conservation residential" land uses that appear based on the parts of the record recounted by the court to allow a combination of residential and limited commercial uses. In defense of the County and DCA, it looks like these commercial uses were intended to permit existing land uses, such as marinas, restaurants, etc., that had been established in "pre planning and zoning days" to continue.

Here's the really interesting, but unexplored, part. The holding reverses and remands the decision back to the Governor and Cabinet (sitting as the Administration Commission"). Under the Growth Management Act, if the Admin Commission finds a plan amendment "not in compliance" they specify "remedial amendments". The local government either (a) abandons the plan amendment; (b) adopts the remedial amendments. or (c) puts the "not in compliance" amendments into effect and suffers economic sanctions identified in the Order of the Admin Comm'n.

So I would expect that the result of this order is that the Admin Commission is going to simply amend its order and add some additional remedial amendment language. Some additional policies limiting the amount of, and size of, commercial development will be added, along with a description of uses, etc. But it will be interesting to see how and whether the sanctions section is created and how detailed the new policies will have to be.

I'm guessing that what this mostly did was prevent St Joe Paper from developing (or at least planning and zoning) some "rural village" development areas intended to cluster relatively low densities into pockets and ensure that there is some limited local commercial (gas station, food mart, etc.) available so that the residents of these areas don't have to drive long distances to get basics -- and maybe to permit telecommuting and other "live-work" opportunities.

First DCA - Circuit Court can't Apply Equitable Estoppel in Cert Review

In Clay County v. Kendall Land Development, Inc., the First District quashed a circuit court decision that overturned a local concurrency-based denial on estoppel grounds.

This is one of those cases where the facts may disguise the real problem. Clay County has a fairly restrictive concurrency provision, and a concurrency certificate issued for a plat application has to be "vested" by gaining preliminary plat approval within 6 months and final plat approval within 2 years. The developer got a concurrency certificate, but didn't get the preliminary plat done within 6 months (which was December 2004), basically claiming that it could keep its certificate by meeting only the latter condition. One of its employees queried the County in January 2005 (after or on the preliminary plat deadline) and a general "OK' on the concurrency issue. As the platting process moved forward, the developer was told that concurrency would be a problem. The difference: fair share payments of over $600,000 instead of just below $192,000.

The developer administratively appealed the determination that it did not have concurrency and would have to pay the higher amount and lost. The circuit court, however, found that the county had misapplied the law of estoppel and should have been estopped by the January 2005 to the limited extent that the County was required to allow the developer to proceed based upon the fair share that would have been due then, if the developer had been told to reapply in January rather than in September 2006 when the whole issue came to light.

Now, there are bad facts here for estoppel law, but the circuit court was trying to do fundamental justice on the basis that if the developer lost the opportunity to apply for a new concurrency certificate when it would have been much cheaper because the County appeared to go along with its interpretation of the timing requirement.

The Fifth District has none of it. Repeatedly indicating that it was dealing with "an experienced developer," the District court destroys the lower court's jurisdiction to deal with equitable issues that are mishandled at the administrative level:

As we have noted, one “clearly established principle of law” is that, on first-tier certiorari review, a circuit court is limited to determining whether the administrative findings and judgment are supported by competent substantial evidence. Whether the record also contains competent substantial evidence that would support some other result is irrelevant. E.g., Dusseau v. Metro. Dade County Bd. of County Comm’rs, 794 So. 2d 1270, 1275 (Fla. 2001) (quoting from Fla. Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1093 (Fla. 2000)); G.B.V. Int’l, 787 So. 2d at 845; Educ. Dev. Ctr., Inc. v. City of West Palm Beach Zoning Bd. of Appeals, 541 So. 2d 106, 108 (Fla. 1989). Here, rather than merely determining whether the hearing
officer’s findings that Kendale did not reasonably rely on the January 2005
misstatement by the Chief Planner or any other act or omission of the County
and his decision that Kendale had failed to prove entitlement to the defense
of equitable estoppel were supported by competent substantial evidence, the
trial court conducted an independent review of the record, concluding that
competent substantial evidence supported a conclusion that the County was
equitably estopped to deny Kendale a CRC. This constituted “a violation of a
clearly established principle of law resulting in a miscarriage of justice” and, therefore, a departure from the essential requirements of law. G.B.V. Int’l, 787 So. 2d at 845; Fla. Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1093 (Fla. 2000).

We have also noted that another “clearly established principle of law” is that, when
considering a petition for writ of certiorari, a court has only two options--it may either deny the petition or grant it, and quash the order at which the petition is directed. G.B.V. Int’l, 787 So. 2d at 843-44 (citing cases). The court may not enter any judgment on the merits of the underlying controversy, or direct the lower
tribunal to enter any particular order. Id. Here, the trial court entered judgment on the merits, fashioning what it believed to be an equitable remedy. This, too, constituted “a violation of a clearly established principle of law resulting in a miscarriage of justice” and, therefore, a departure from the essential requirements of law. G.B.V. Int’l, 787 So. 2d at 845; Fla. Power & Light Co., 761 So. 2d at 1093.

The problem is that the lower court was actually saying that the hearing officer misconstrued the scope of his authority to deal with the equitable estoppel claim made by the developer and therefore departed from the essential requirements of law in not providing appropriate relief.

That kind of determination requires the reviewing court to examine the record closely to see if it was applied properly to the law. This is a particular problem when (a) equitable principles -which are inherently fact based-- are involved, and (b) where there are confusing or overlapping legal principles. Under the First District's holding, it doesn't matter if the lower tribunal got the law wrong so long as there is competent substantial evidence to support its decision under the wrong legal interpretation.

This difficult (crazy?) result flows from the simple fact that certiorari is flatly insufficient to provide the "one means of effective judicial review" that due process guarantees.

Said it once, said it twice and again. We need a statute providing effective judicial review under the model of 120.68, and we also need a statute that provides minimum standards for the conduct of local hearings and the issuance of administrative orders.

PRACTICE TIP: Get your case out of the administrative process and into circuit court as a declaratory or injunctive action. In this case, for example, the developer could have filed a declaratory action to determine the scope of the ability of the hearing officer to consider and apply equitable estoppel principles, and arguably to estopp the county (note: equitable powers per se are beyond the jurisdication and power of admininstrative officers).

It was the inadquacy of cert review and the resulting multiplicity of suits on different grounds under the pre-1972 APA that led to its amendment and the provision of the "rich arsenal of remedies" under the modern act. It very well may be that only an explosion of suits in circuit court attacking the jurisdiction of local boards, the processes in local ordinances, asking local procedures to be determined inadequate, and suing for prohibition, quo waranto and related writs will demonstrate the clear need for legislative reform.

This is not a "pro-developer" or "pro-neighbor" issue: noone gets a fair shake under the current system.

Finally, be aware: In the last year we've seen two cases that involved concurrency and fair share issues-this case and the D.R. Horton case from Jacksonville . They are the tip of the iceberg. Local governments statewide refuse to either fund their adopted level of service or lower them to affordable levels. The state's funding for non-SIES roads is dramatically inadequate. In the next two years we will see concurrency become a political and economic crisis on the scale of the 2004 hurrican season, and the result is going to be hundreds of lawsuits.

Supremes: No, really, Memos by Government Attorneys are Public Records unless Expressly Exempted!

Lightbourne v. McCollum, ---- So.2d ----, 32 Fla. L Weekly S707 (Fla. Nov. 1, 2007).

In the process of determining that Florida’s amended rules governing lethal injection must fail once again before a condemned prisoner can complain of 8th Amendment violations, the Florida Supreme Court struck a blow for public records in a situation that demonstrates exactly why the efforts of the State and Local Government Section to eviscerate the rules, must be stopped.
At issue were two memos by an assistant general counsel that related facts regarding earlier litigation involving inmates that had already been executed. The memos also had been previously disclosed.

The issue was clear: the memos contained documentation regarding alternative means of assessing the state of consciousness of a person being executed and other facts relevant to the issue, including evaluations of techniques that had not been adopted by the state. That is, the memos demonstrated that the state knew of alternatives that it was not adopting and the arguments for their use.

The State claimed that because they were prepared for litigation, they were subject to attorney-client privilege or work-product privilege.

The Court found that the public records law was to be broadly construed and exemptions narrowly construed. The Court noted that documents prepared by a government attorney are exempt only when (a) they contain the attorney’s mental impressions, litigation strategy or legal theory AND (b) are prepared exclusively for litigation or anticipation for imminent ligation, AND (c) that any exemption exists only until the conslusion of the litigation or the execution of the sentence.

Applying these rules, the court found that (1) the contents were largely factual and did not disclose litigation strategy (2) the memos on their face did not apply or pertain to particular pending litigation and (3) that if they were prepared for the litigation indicated, the exclusion died with the inmates. The court then looked at the County’s assertion that the document should be excluded because any disclosure had been inadvertent. The Court noted that some courts had held that any disclosure waives a privilege while others had applied a “relevant circumstances” test. Without holding that Florida would, does, or will follow the “relevant circumstances” test, the Court noted that the state had not provided that it had taken reasonable precautions against release, or that the interests of justice would be served by suppressing the documents. The Court therefore held that the privilege would have been waived, if it had existed.

These are critical issues for all private sector/public interest attorneys to recognize (and local government attorneys to respect).