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. 

And the Moral of the Story Is: File a Facially Valid Permit Application

In St Johns WMD v. Womack, here's the opinion, the 5th DCA overturned a lower court determination that the WMD violated due process in a permit denial and granting damages under section 1983.

The court hated to do it, and appended the lower court opinion (and findings) to demonstrate that it believed that the District had behaved abysmally and probably unconstitutionally in its dealings with Mr. Womack. The problem? After successive (and clearly, from the record, bad faith) notices of intent to deny based on previous filings of plans drawn by his engineer, Womack filed his own plan, let it actually get denied and took that denial to court. While if he had simply taken one of the engineer's plans forward, the denial would have been arbitrary (or presumably so, given the tenor of the opinion), but Womack's own plan didn't have even an arguble claim to meeting the rule/statutory standards.

The record demonstrates that the Chair of the WMD interfered with the staff and the application and that the Friends of the Wekiva were allowed to "unduly influence" the proceedings. In short, the District completely shafted Womack, but gets away with it because he lost his cool and simply didn't file the last, best plan.

As a practic point, what this demonstrates is that the "futility" exception doesn't apply in due process and equal protection cases. You have to make a true good faith filing of an application that meets the objective standards. Then, arguably, you can make a claim that the agency failed to apply whatever discretionary standards are there in good faith.

Check out the dates here - the action started in 1992! Today, the same behaviour would get the District wacked about the head and shoulders with Bert Harris claims - and this is exactly the kind of fact pattern that was used to justify the act.

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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.