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

Land Use and Local Government Law and Litigation

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2d DCA on Cell Towers - And the Limits to the Scope of Essential Requirements of Law in Cert Proceedings

In Verizon v. The Sanctuary, here's the opinion, the court reiterated the view taken by the 3d DCA in its remand decision in Omnipoint, that the scope of the "essential requirements of law" inquiry, as well as the scope of the lower tribunal's authority in a quasi-judicial hearing, is limited to the ordinance or statute being applied in the hearing.

The City of Sanibel granted a license to Verizon to put a cell tower on a piece of property is owned that already had a water treatment plant (no mention of water tower, but I suspect one). It approved this under a "tower ordinance" that it had previously adopted, that indicated the site as one of several potential sites in the city, and that also provided that it superseded any contrary rules, etc.

The neighboring association raised violation of essential requirements of law (not competent substantial evidence), and the lower court granted cert, on several different grounds:
1) The approval was inconsistent with a site-specific PUD ordinance that governed the property;
2) The approval was inconsistent with a settlement agreement between the City and either the Homeowner's Association or the Developer
3) The location was inconsistent with a plat dedication that designated the site as a water treatment plan, even though full title to the property had later been granted to the City
4) That the City was "estopped" from changing the land use and allowing the tower.

In granting cert and quashing the circuit court's writ, the 2d held that the City's permit action was a quasi-judicial action that applied the tower ordinance, and did not involve either the validity of that or ordinance or the application or validity of the PUD ordinance or the settlement agreement. Based on that analysis, the court went on to hold:

The purpose of the certiorari proceeding below was to review the City
Council's application of the telecommunications ordinance to Verizon's request.
as such, the circuit court was not reviewing the Council's previous decision to enact that ordinance. See G.B.V. Int'l, 787 So. 2d at 848 (Wells, C.J., concurring) (explaining circuit court's error in treating county commission's action as legislative when it was quasi-judicial).

In sum, when considering Verizon's application, the City Council
properly applied the telecommunications ordinance, which expressly superseded
any contrary provisions in the land development codeƂ?including those
contained in the PUD ordinance. It follows that the circuit court applied the
incorrect law when, in reliance on the PUD ordinance and the amended settlement
agreement, it declared that the City Council's decision departed from the
essential requirements of law.

The court also held that the plat's designation did not control when the City had been deeded the property, and that the court improperly reweighed the evidence when it found estoppel (which had been raised before the city).

Whew.

The most important aspect of this case is the court's analysis of the scope of the delegating authority (the tower ordinance) as establishing the scope of the "essential requirements of law" and "applied the correct law" analysis. It accepts the Omnipoint court's position that a lower tribunal may only apply the ordinances and rules under which it conducts a hearing; unless those rules pull in other regulations or standards by reference, they are not before the tribunal. It might be required to act in a manner that is contrary to another law, if that other law is not before it.

This creates some interesting problem in our interlocked regulatory world. Was the comprehensive plan and its policies properly before the City in this case if plan consistency is not a standard in that ordinance? One school of thought - 163.3194 requires ALL decisions involving development to be consistent with the comprehensive plan, so thatrequirementt is "legislatively inserted" into all other localordinancess, etc. Another school of thought is that unless the localordinancee expressly requires consistency with the comprehensive plan, it is an impermissible consideration in the qj hearing and review.

The other thing that this decision brings out is the structural difference between what you can challenge in the cert process and what you can't. While the court failed to catch it, the estoppel argument actually should have been thrown out entirely: it is by definition an equitable argument and power, and administrative tribunals have no equitable powers. That is, the City could not have used an estoppel argument to "add" to the standards in the ordinance or limit their scope, and both courts erred in not dismissing this argument later. The same issue holds true with enforcing the plat restriction (though this was rejected on other grounds): barring the use of property that is inconsistent with an easement is either equitable (injunction) and not available as a general power to administrative agencies, or a declaration of rights between the parties, which nothing authorizes the City to determine. Moreover, nothing would grant the City the right to enforce such a determination of rights against itself or between other parties - again, that would be a judicial function.

So, given that there was potential conflict between the PUD ordinance, the settlement agreement, and that there were equitable issues on estoppel and the plat, and that these issues are clearly problematic in the cert appeal, what was the neighbor to do? Well, if there are legal and equitable issues that arise from a government action or rule, and they're not cognizable in cert, then they're going to be cognizable in a dec action.

Back to splits between what you try where, again because of the scope of review issues involved. Again - we need a statute that 1) provides specific authority and procedures for local quasi-judicial actions, and 2) provides for APPEAL, not cert review, in the circuit court, with review by right of the appeal in the DCA. That would broaden the scope of potential arguments and relief and avoid some of the "cramped"treatmentt of these issues that the narrow cert review provides.

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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.