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. 

Standards vs Standing for Injunctions

In this opinion, released on December 30, the 5th DCA held that a neighbor seeking a temporary injunction against a development order (or, in this case, the process involved) does not need to show "special damages" as part of the test for entitlement to the injunction.

The court correctly distinguished the "special damages" requirement for standing from the irrepparable harm test needed to qualify for the injunction, and reversed the trial court, who had dismissed the case with prejudice for failure to show special damages. Special damages, of course, require the demonstration that the plaintiff will suffer a harm different from those of the community in general.

Here's where we get to an interesting problem. The case involved a citizen trying to get an injunction against the issuance of a development order based, not on the illegality of the order (e.g. failure to meet the standards), but based on the failure to provide procedural due process in the City's issuance of a site plan. So what standard should the 5th directed the trial court to use on the issue of standing to bring the injunction action, as opposed to

OK, so if the Plaintiff wanted to get an injunction against the site plan itself, he would have to show special damages to maintain standing. While the cases go both ways, neighbors generally should be able to show special damages if the underlying violation goes to some interest that would be protected (e.g. setbacks if the plaintiff is adjacent, traffic or configuration or failure to provide required landscaping if you're in the immediate vicinity, etc.). That is, the "zone of protection/interest" test used in APA type cases should be applied in determining whether the plaintiff is harmed in a way that is different from the community. (this does require some problematic assessments of what kinds of harms - and to whom - zoning regulations are designed to protect, but we'll take that up another time).

But where the problem is the process, you run into all kinds of problems. Suppose the action is quasi-judicial (site plan approval would be) and the problem is that the local rules don't allow the neighbors enough participation (or notice) to protect their rights. Cert is an insufficient remedy because the violation is one that would prevent the plaintiff from establishing on the record the evidence needed to establish both standing and the core violation. In such a circumstance, a dec/injunction action is appropriate. Moreover, if the violation is not specific to a single proceeding, there is a signficant public interest to protect that should cause the court to lean towards permitting the suit.

But now we run into the standing problem - what harm should a citizen/neighbor have to show in order to maintain an action to prevent action on a development order because the process is bad? If the citizen wouldn't have standing to contest the outcome if the process were'nt bad, should the case be dismissed? If you say yes, then you require a citizen to show both a substantive violation and special damages in order to get a procedural violation addressed - this just seems way too restrictive. OTOH, if you let anyone stop any individual development order based on such a claim without showing special damages, you open the door to the kinds of frivoulous or harassing suits that the special damages rule is intended to prevent.

Perhaps the "right" answer is that if a local government employs an improper process, anyone should be able to maintain a facial dec/injunction action against it. But we've seen time and time again that the courts won't allow this absent a specific case - facial challenges to process tend to be dismissed on ripeness grounds, because the courts want to see a real controvesy and give the government the chance to interpret the legislation/regulation so as to make it valid.

Bottom line: yet another situation where the absence of a set of uniform minimum standards for the conduct and review of local administrative hearings is creating difficult, time consuming and expensive litigation that confuses rather than clarifies the rights of all involved.

Practice tips: 1) exhaust your remedies (more on that later); 2) figure out how to plead special damages whenever possible, even if you have to be creative; and 3) where processes are screwed up, try to get objections, etc. into the record so that the issue can be addressed in cert review.

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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.