Omnipoint, cert and constitutional challenges
OK, this is my second time writing this post - lost the first when when a file upload crashed the browser before I'd posted and saved it.
The Supremes and 3d DCA took the strange Omnipoint case and made it even stranger. The cases are linked here:
Omnipoint II-Fla S Ct.doc
Omnipoint III - 3d DCA on remand
Here's the new can of worms: The Fla Ct held that you can't make constitutional challenges in a cert petition. No "only precedural/as applied/etc." exception - just a blanket prohibition.
The 3d on remand went further and held that a quasi-judicial decision maker can consder ONLY the criteria laid out in the authorizing legislation that guides the decision.
While I'm a big believer in much more attention to delegated authority, clearer standards, etc., this creates some serious problems. Example - if a special exception or variance ordinance doesn't specifically provide a criteria of "is otherwise consistent with the objectives and policies of the Comprehensive Plan" then the BZA (or whatever board) CAN'T consider the plan in making its decision, even if it would be consistent with the other criteria and discretion of the board.
Everyone should read these opinions - we're going to be litigating the meaning and limits of them for the next 10 years.
Lots of fun new challenges ahead, folks.
The Supremes and 3d DCA took the strange Omnipoint case and made it even stranger. The cases are linked here:
Omnipoint II-Fla S Ct.doc
Omnipoint III - 3d DCA on remand
Here's the new can of worms: The Fla Ct held that you can't make constitutional challenges in a cert petition. No "only precedural/as applied/etc." exception - just a blanket prohibition.
The 3d on remand went further and held that a quasi-judicial decision maker can consder ONLY the criteria laid out in the authorizing legislation that guides the decision.
While I'm a big believer in much more attention to delegated authority, clearer standards, etc., this creates some serious problems. Example - if a special exception or variance ordinance doesn't specifically provide a criteria of "is otherwise consistent with the objectives and policies of the Comprehensive Plan" then the BZA (or whatever board) CAN'T consider the plan in making its decision, even if it would be consistent with the other criteria and discretion of the board.
Everyone should read these opinions - we're going to be litigating the meaning and limits of them for the next 10 years.
Lots of fun new challenges ahead, folks.