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. 

Just how does one exhaust another person's remedy?

The 2d DCA released an opinion yesterday that's another one that every land use attorney has to read.

Vanderbilt Shores et al v Collier County et al involved several neighboring condo associations who attacked the approval of a new building on the basis that the setbacks were too small. The issue was that the zoning district varies setbacks based on height, and the building was built with a big "step down" - as the 2d described it, the building is shaped like an upside down "T" with low wings and a high tower.

The neighbors won the technical interpretation battle but lost the war (so far). The court held that given the definitions of setback and yard, the lower wings encroached the setbacks required for the tall part of the building (read the opinion, Judge Northcutt does a good job of explaining). It rejected the County and the developer's argument that the County had discretion to interpret the setback requirement so as to allow the lower wing to have a less setback than the upper based on the clear language of the ordinance.

BUT

The court then went on to uphold the circuit court determination that the case should be dismissed for failure to exhaust administrative remedies. It held that the neighbors should have used two provisions of the zoning code; one that allows anyone to get an interpretation of the ordinance from the zoning official and then appeal it up - OK, maybe. But the court also held that the neighbors should have availed themselves of the provision in the code enforcement section that provides for complaints about violations.

I went and read the Collier Code (thanks again, Municode online!) on this. The Collier Code does allow anyone to ask for an interpretation and allows anyone to report a violation of the Code. It even is more liberal than some in its language in that it gives the County manager the authority to investigate ANY violation of the Zoning Code (not just a building already built) and stop it in various ways. And, like many or most LDR's these days, it allows the County Manager (or designee) a wide range of corrective actions, from injunction to criminal prosecution or the use of the Code Enforcement Board.

The problem may be jumping out at you -- while the code allows 3d parties to complain to the County Manager to try to get enforcement proceedings instigated, it doesn't give them any right to instigate action with the Code Enforcement Board or any other entity. The County Manager or County has complete discretion in whether it acts in any way on a complaint. So the actual remedy for a discovered violation belongs to the County, not to the aggrieved third party.

So, I don't know exactly how or why a neighbor should be forced to exhaust an enforcement mechanism that in no way allows the neighbor to directly instigate action or to be a party to any action that is taken after the complaint. So there's no administrative remedy available to the neighbor there. And my recollection of the exhaustion doctrine (which could be faulty) is that you only have to exhaust procedures that can provide a meaningful or complete remedy. Somebody out there - tell me if I'm wrong - are there cases out there that hold that you have to exhaust remedies that only allow a 3d party to act for you?

What's distressing about this as well is the prospect that in order to take any complaint about a facial violation of a zoning code (which under Florida law is a public nuisance, remember) to court, you'll first have to go to code enforcement, and if they don't think you're right, go to the zoning administrator, appeal to the BZA, go back to code enforcement or the County manager and then appeal or attack the manager's decision regarding whether or not to act. Not a good case for neighbors.

OK, so I'll renew another call I made a long time ago: in addition to a "local government APA" with rules for review, etc., we need a LUBA (land use board of appeals) - maybe a special division of the 1st DCA - to hear these appeals.

Happy April 15th!

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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.