LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

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.

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Hiring an attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask and I will send you free written information about my qualifications and experience. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances, or to establish an attorney-client relationship between us.