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

Land Use and Local Government Law and Litigation

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Standing to Appeal Comp Plan Amendments Limited by 4th

On Wednesday, the 4th DCA released this opinion that holds that "third party" standing to maintain an administrative challenge to a comprehensive plan amendment under s. 163.3184 doesn't automatically provide standing to appeal under 120.68 if the party loses. It dismissed an appeal by the Martin County Conservation Alliance and some of its members to a plan amendment that had been approved by the Dept of Community Affairs after a 120.57 hearing and final order. It's another one of those superficially reasonable decisions that seems well supported by law and context, but that fails to hold up under any scrutiny.

(BTW - thanks to John Ferguson, Larry Sellers and a few others who sent me the link to the case. As with all my posts, the views here are mine and while I'm happy to challenge folks who might think differently, I don't intend to offend).

Essentially, any "affected" person can challenge a comp plan amendment AS A FULL PARTY, but the court held that under 120.68 one must be (and show in the record that they are) "adversely affected" by the administrative ruling to appeal.

Before getting into the meat of this ruling (which I'll do only relatively briefly because a full discussion would require a law review article), let's start by saying dismissing this appeal without giving the parties an opportunity to cure the pleading or factual basis below is flat out unfair. Folks have been challenging plan amendments based on pleading general facts regarding impact of the amendment ever since the statute was passed without this challenge being raised, and typical practice has been not only to make general allegations, but for the local government and landowner to stipulate to standing generally. So as a matter of principle, the petitioners here had no fair notice that they had to plead or prove differently.

[BTW, it's my understanding that the court picked this argument on its own motion and that DCA actually argued that MCCA had standing; I don't know what the County or landowner argued]

On the meat, well, let's start by saying that it's always a bad sign in a standing case when the court begins by citing a federal case (Morton in this instance). Federal case law - on their APA or general standing - simply has nothing to do with standing under Chapter 120 - the FAPA.

The essential issue here is whether the LEAF v Clark case - which held that LEAF, while being granted intervenor/party status by the Public Service Commission in a rulemaking proceeding that involved how conservation goals were to be set for electric utilities was not "adversely affected" by PORTIONS of a rule it didn't like - really stands for the proposition that a party who loses in an adjudicatory hearing is not automatically adversely affected by that decision.

The cites in the case make this seem like the cases hold that standing to appeal is generally separate from standing to appear, but that's really not the case.

Leaving Daniels (which was a case that FOUND standing) for a moment, LEAF involved proceedings before the PSC based on a grant of standing by the PSC (not by invoking and demonstrating that it was affected). PSC held extended negotiations with the parties, then convened a hearing and entered a final order adopting rules that governed how utilities would be required (or not) to implement conservation programs. The Court held that LEAF did not have standing to contest ONE PART of the final order that involved how the standards would be enforced. It did (implicitly) give LEAF standing on due process claims, as well as on its claim that another part of the rule was not supported by the evidence. It is VERY important to note that in the case of this rulemaking, the proceeding was, more or less, held before the PSC itself; that is, it was NOT a case where a hearing officer adjudicated a proceeding under 120.57 and the agency entered a final order.

So the LEAF case really stands for the proposition that a participating party in a RULEMAKING proceeding has (automatic) standing to contest issues that go to the fairness or evidence of the decision, but maybe not to the choice of enforcement mechanisms if the party will not be subject to them. It says NOTHING AT ALL about whether or not a party to an ADJUDICATORY PROCEEDING who loses part or all of the rulings there is or is not "adversely affected" by the final order. And LEAF clearly implies that insofar as there are adjudicatory issues (due process, etc.), a party to the proceeding is adversely affected by decisions or actions taken below that are adverse to them. That is, LEAF does not stand for the proposition for which the 4th cited it: that a losing party needs to show that they will be harmed by the decision as a whole in order to appeal all or part of it.

Let's also look at the specific case of comp plan amendment challenges: here the statute provides that administrative adjudication is the ONLY way to test the compliance of a plan or plan amendment with the statute. Because the state is supplanting judicial review of the amendment decision with an administrative adjudication, it must afford full due process and full judicial review of that process. (Scholastic Systems v Laloup).

The statute also defines (beyond the Chapter 120 definition) not only who is an affected party, but the some of interests that are STATUTORILY determined to be affected by planning decisions. The intent of this definition was to ensure that plans and plan amendments could be challenged broadly by the people who had to live with the long term results. [there is legislative history directly on this point that I saw as staff to the Jt. Select Committee on Growth Mgmt Implementation - thanks to Mike Morell for reminding me] The GMA challenge provisions also were adopted with the longstanding belief by most administrative law lawyers that a party who loses an ADJUDICATORY DETERMINATION in a 120 process is adversely affected by that determination for the review purposes of 120.68.

What's more, the whole reason for determining the validity of plan amendments against the statute and rule is that the actual impacts are speculative - but are recognized by the statute as coming. That is, when you change a land use designation, the statute assumes that - within a reasonable period of time - infrastructure, environment and neighboring land uses will be affected. The potential for adverse impact is presumed by the statute - the point is that the local government and/or landowner are supposed to be showing that the impacts will be properly dealt with.

So -
1) Broad interpretations of Daniels and LEAF to hold that a party to an adjudicatory proceeding under 120 who loses an adjudicatory determination isn't "adversely affected" is just wrong. How do you litigate the way that you might be harmed by a decision that hasn't been made yet? The rulings themselves, if adverse to a party, adversely affect the party, plain and simple.

2) The only potential area where this might NOT be true (dicta in Daniels, referring to Balino, and the case in LEAF) is where the proceeding is rulemaking and the rule involves provisions that affect only parties regulated by the rule (which was a fact-specific determination made by the LEAF court in finding that LEAF didn't have standing in that part of the case).

3) Attempts by the Courts or other litigators to import some kind of Rickman type standing into these cases flies in the face of the intent of the statute. I sincerely doubt that judges at the 1st DCA would have made a ruling like this for fear that Pat Dore would rise from her grave and haunt their chambers for the rest of their lives. Clearly, the 4th DCA judges never read any of her foundation articles on the role and purposes of Chapter 120 and standing in 120 proceedings.

Personal note: I was in Professor Dore's Admin Law class at the time of her death and we had been covering standing issues - she not only argued for open access to the administrative process (see her seminal 1986 article) but also to the appellate process.

PRACTICE POINTERS:
1) If you're a 3d party, plead specific ways that you will be affected by the change in the comp plan. I don't think this needs to be Rickman injury (different than the public as a whole). I'd be thinking of the same kinds of issues that I'd raise in a 3215 challenge and plead them.

2) Don't stipulate to standing generally, stipulate to the facts. In fact, I'd push to get stipulations regarding how my clients would be affected (adversely) if the amendment passed, even if some of them are speculative.

Happy litigating!

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