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. 

4th DCA - stipulation to standing doesn't get you to appeal in plan challenge

In this opinion, released yesterday, the 4th DCA not only reiterated its opinion in O'Connell that the petitioner (same parties, different amendment) standing to appeal the amendment to DCA didn't guarantee them appellate standing, but addressed the "stipulation" issue.

Here's the language:

Appellants argue in the alternative that the appellees, by stipulating to their
standing at the administrative level, were either stipulating to standing to
appeal or waived the issue. Our reading of the transcript, however, leads us to
conclude that the defendants were only stipulating to standing at the trial
level. In the discussion, counsel for appellants referred to the standing as
being under Chapter 163, and opposing counsel agreed there was standing ?for
this venue.?

Accordingly, as we did in O?Connell, we dismiss the appeal.

While you can argue that the Plaintiffs fell into an obvious trap (and a few folks that I respect have made that argument to me), I think it's bad law for the DCA not to remand to allow them to add the evidence needed to establish their appellate standing. As I stated before, this approach force Plaintiffs to litigate issues in the administrative forum (the impacts of the development and of losing) that aren't necessary and therefore which could be excluded for relevancy.

That result - while logical under the circumstance - would violate due process. The plaintiffs MIGHT have had constitutional level standing to challenge the plan amendment, but under the Act, they're forced to litigate the issue in an administrative forum. Fair enough. But due process requires that litigants in an administrative forum have at least one meaningful avenue of judicial review. The 120.68 standing provision is probably OK constitutionally in most circumstances - you have to show some standing and affected interest to have a right to due process. But if you're forced to litigate in an administrative setting and don't have a fair opportunity to demonstrate standing for getting judicial review, you've been denied due process AND access to the courts.

In the meantime, if you're involved in a comp plan challenge, don't just allege statutory standing, go full out and allege "substantially affected" status. I think you still can take advantage of the general "zone of interest" decisions, but plead all kinds of impacts on those interests. Throw in the kitchen sink and make the local government either stipulate that your mother's going to be killed in a car wreck, run out of drinking water, or have her sewer pipes back up if the amendment is passed (as appropriate) or threaten them with three days of your clients testifying as to the horrors of the resulting unchecked growth and environmental damage.

And if you're in Palm Beach County, I guess I wouldn't trust any stipulation on standing that the local government makes - put on your proof and make sure it's in the record.

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