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. 

Cert Review of Rezonings - Still FUBAR

The 2d DCA granted cert to Sarasota County, quashing a cert petition granted by the circuit court against the Sarasota County Commission's denial of a rezoning applications. It's a mess.

I'm going to try to scan and post the original order and petition/answer as well as the appellate petition/answer/reply sometime soon for all to read, but here's a synopsis:

The rezone (of ag lands from 1 unit/10 acres to 1/5) got generally passing views from staff and was approved by the Planning Commission with recommended conditions. Note - in Sarasota County, the practice is to avoid a staff "recommendation" one way or another.

At the quasi-judicial hearing before the BCC, all hell broke loose. The County Commissioners started discussing the impacts of a just-adopted (but not yet approved) land use amendment that might allow the petitioner to come back for another rezoning to do a "conservation subdivision" that could allow 1 unit/3 acres. A neighbor was allowed to testify extensively that there was no demonstrated "need" for lots. Then at least one Commissioner started investigating the traffic analysis and got the relevant staff expert to opine that the traffic model had been run backward.

The Board voted to deny the rezoning petition making a few basic findings.

The Circuit Court granted a petition for cert based on its review of the record and determination that a) the Board applied the wrong law - that it denied based on the application of the new plan provision and in doing so violated due process, and that b) the denial was not based on competent, substantial evidence in the record.

The 2d reversed in this opinion. It found that the circuit court applied the wrong law because it didn't follow .Snyder's back and forth process for the review of the decision. It also found that the court had improperly re-weighed the evidence.

A couple of notes here. First, the effect of the Circuit Court's quashal of a rezoning denial is not to order the lower tribunal (here the BCC) to grant the rezoning; instead it orders the the board to re-consider and re-enter a decision. This seems to be absolutely the right thing to do when the Board's written or unwritten decision is insufficient to justify its LEGAL basis for action (as opposed to the CSE/factual basis). Of course, this is an endemic problem to rezonings in Florida given the Florida Supreme Courts unfathomable and untenable postiion in Snyder and Broward County v GBV that full written opinions aren't required. (see Justice Pariente's telling dissent in GBV).

Second, the 2d DCA did exactly what it's NOT supposed to do in addressing the "competent substantial evidence" review - it peered into the Circuit Court's review process. This is not a case where the Circuit Court stated that the lower tribunal had improperly applied the evidence - the Circuit Court found that there was no CSE to support the legal basis for the denial. Or, in other words, all the negative evidence in the record went to matters that were not legally sufficient (e.g. "need" for a rezoning, which is not a basis in the Sarasota Plan or LDR's).

Third, under the 2d DCA approach and interpretation of Snyder, there's essentially no way for a landowner to establish that the denial of a rezoning was improper. This was not the intent of Snyder (and there's REALLY problematic language in the "shifting" discussion in which the court didn't really say what it meant). The 2d seems to say that somehow "the correct application of law" is limited to the Snyder formulation and that there is no other law to apply - which is just silly, if you think about it. It's clear that a Commission can't apply incipient policy (unadopted plan policies) or policies that lie outside the Comp Plan and LDR - but if they discuss those things and clearly (from the record) decide based on them but fail to make a written finding on those ancillary matters, the 2d's position ends up being that this abuse is unreviewable.

I hope to provide more posting/info on this soon.

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