Update - circuit ct opinion in Orange County case
In response to my post last week, a reader forwarded me the circuit court opinion. Here's a link to that opinion in MS Word format.
From the looks of it, everyone got so focused on the "law of the case" issue that no-one looked at the issue of whether the findings at issue would justify denying the development order. If there is such a standard (like "its in the public interest"), I would seriously be considering a collateral attack on the ordinance as void for vagueness as applied - a CON issue that could be brought up collaterally.
On that, btw - you'd probably run into a major conflict between the DCA's. The 5th last year held that it could read from the intent and definition sections of an ordinance to provide meaningful standards to a conditional use process that had none. (Caps v St. Johns). Really bad decision IMHO. The First has let some vague delegations through (the old Alachua County case, and the more Windward Marina v Destin case). But the 3d, in the decision on remand in Omnipoint, held explicitly that a board hearing a QJ matter can't go beyond the standards and rules contained within the section under which it takes authority. The 3d also is the District that issued the leading cases in the "standards" area - North Bay Village; Save Brickell Avenue, etc. Under Omnipoint, you can't go wandering around other parts of the ordinance -OR THE COMP PLAN - for standards just because they're out there. The ordinance probably can specifically reference standards outside itself, but I'm guessing that the 3d wouldn't put up with some kind of "otherwise consistent with law" type of delegation language.
PREDICTION: While local governments have a number of wins under their belt upholding really bad, vague ordinances (that delegate almost unfettered discretion), the relationship between adequate standards and fair decision making is going to be one of the next frontiers of litigation at the local level. Too many ordinance grant too much discretion to boards (of adjustment, planning commissions, city/county commissions, DRC's) and any fair observer would agree that the discretion is being abused in too many cases (and that's regardless of whether you're a developer or a neighbor/NIMBY/environmentalist).
From the looks of it, everyone got so focused on the "law of the case" issue that no-one looked at the issue of whether the findings at issue would justify denying the development order. If there is such a standard (like "its in the public interest"), I would seriously be considering a collateral attack on the ordinance as void for vagueness as applied - a CON issue that could be brought up collaterally.
On that, btw - you'd probably run into a major conflict between the DCA's. The 5th last year held that it could read from the intent and definition sections of an ordinance to provide meaningful standards to a conditional use process that had none. (Caps v St. Johns). Really bad decision IMHO. The First has let some vague delegations through (the old Alachua County case, and the more Windward Marina v Destin case). But the 3d, in the decision on remand in Omnipoint, held explicitly that a board hearing a QJ matter can't go beyond the standards and rules contained within the section under which it takes authority. The 3d also is the District that issued the leading cases in the "standards" area - North Bay Village; Save Brickell Avenue, etc. Under Omnipoint, you can't go wandering around other parts of the ordinance -OR THE COMP PLAN - for standards just because they're out there. The ordinance probably can specifically reference standards outside itself, but I'm guessing that the 3d wouldn't put up with some kind of "otherwise consistent with law" type of delegation language.
PREDICTION: While local governments have a number of wins under their belt upholding really bad, vague ordinances (that delegate almost unfettered discretion), the relationship between adequate standards and fair decision making is going to be one of the next frontiers of litigation at the local level. Too many ordinance grant too much discretion to boards (of adjustment, planning commissions, city/county commissions, DRC's) and any fair observer would agree that the discretion is being abused in too many cases (and that's regardless of whether you're a developer or a neighbor/NIMBY/environmentalist).