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. 

A cert case you have to read

The 5th released this opinion last week quashing a circuit court's quashal of an Orange County Commission's overturning of a DRC approval of what amounts to a site plan for a multi-family "phase" of a previously approved DRI.

One one hand, this looks like a plain vanilla case where there's no CSE for one finding, but CSE that supports 2 findings and the circuit court errs by quashing when some findings are supported.

The problem is that none of the findings should constitute a valid reason for denying approval and the public policy ramifications of this case are huge.

The phase in this case would be for more apartments in a development near UCF and the Community College. Neighbors object. The Commission denies this pretty much ministerial approval, citing three grounds:
1) too much density - which they calculate at one unit per bedroom instead of the standard DU definition of bedrooms plus bath and cooking facility. This finding was found not to be supported by CSE.
2) other phases had greater than average police calls and "nuisance problems" and this phase would have the same characteristics; and
3) the phase would "negatively impact the quality of life for area residents"

Apparently, the circuit did not make findings or conclusions as to whether findings 2 and 3 LEGALLY mattered and would justify denying the phase approval. But it's crazy - I've never seen an ordinance or development standard that would allow those findings to support denial of a DO.

Let's be clear about the implications here: Orange County found that because some people living in certain multifamily units were creating more police calls and related problems than other types of development in the community, it could deny approvals for that kind of housing for other properties or developments.

By extension, if a jurisdiction does a study and finds that multifamily housing that rents for under $1,500 a month or sells for under $200,000 has more police activity than more expensive units, this now seems to be legal justification for denying rezonings, site plan approvals, etc. for the affordable housing. If a certain area of town has more police problems, well, start denying permits for new development there - or don't let the people from "that community" spread to nearby neighborhoods.

In this case, the problem is probably (but not clearly) college students living in the apartments. But the Commission's action and the court's approval is so broad and the grounds SO clearly biased that it constitutes a blanket attack on multifamily and affordable housing in general. And while the 5th had to take the case as it got it, I think they did a real dis-service to everyone by not at least asking whether this case raised issues other than the CSE to support two findings that basically allow denials of DOs based on the behavior and actions of other people in other developments.

I'd really love to see the briefs in this case to try to figure out what was and wasn't argued.
-- given the completely outrageous and clearly illegal way that the Commission started counting the dwelling units, why didn't someone object to their continued participation on the basis of bias (they did this before, by the way in an earlier case)?
-- why isn't there a discussion to the effect regarding these findings?
-- if they related to some standard in the DRI DO or other LDR's, why isn't there an attack on the decision under a void for vagueness or arb/capricious application of the standard?
-- why isn't there any law at all here that argues that it violates due process and equal protection to deny a development order based on the actions of 3d parties?

I can only hope that there's a motion for rehearing or clarification in this case and that it somehow gets limited to much more specific facts than we see in the opinion. Otherwise, we have a really, really, really bad precedent that seems to allow the worst kind of discriminatory behavior on the part of local governments.

So - if any of the readers out there know more or have more info, please share it, either by commenting or by sending an email to me *(just click on my name).

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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.