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. 

1st DCA to Columbia County - Get Real, or Local Gov't Abuses of their Zoning Regulations are Endemic

Ok, I defy anyone to read this opinion, in Stroemel v. Columbia County, and maintain the belief that local governments can be trusted to fairly interpret and apply their own zoning regulations, or even to fairly represent their meanings to the local circuit court.

Stroemel owns property on a river in Columbia County on which he operates a canoe/kayak rental operation. The zoning regulations applicable to his property permit "public resource based recreation facilities." Despite the fact that the river is clearly a public resource, and that a canoe/kayak rental is clearly a "recreation facility" the county tried to shut him down.

Even more incredibly, the county argued to the trial court (and the circuit court judge agreed - HUH?) that the term "public resource" didn't really mean what it said - facilities that used or accessed a public resource. Instead, "resource" wasn't mofied by public - public meant publicly owned.

This argument so doesn't pass the smell test that the county's attorneys should be sanctioned for bringing it forward, even if some locally elected judge was conned into accepting it (as happens all too often - a perfectly decent judge in DeSoto County recently ruled in a case I'm involved in that rezonings aren't development orders, despite the clear language of chapter 163). I believe that local judges trust that local government attorneys will behave as ethically as the state attorneys that appear before them -- that they will be bound to make limited, fair and constitutionally constrained arguments. Instead, too many local attorneys think that their job is to twist and bend the law into any shape that they can in order to defend the actions of their boards, and the boards' political agendas.

But, on a more useful (and less ranting) note - the decision includes a GREAT recitation/summary of the Rinker rules on statutory construction (without the internal cites, etc.). This paragraph should be part of EVERY land use lawyer's lexicon:

In determining whether appellant’s proposed development comes within
the ambit of a “public resource based recreation facilit[y],” the following
rules of statutory construction should be employed:
(a) In statutory construction, statutes must be given their plain and
obvious meaning and it must be assumed that the legislative body knew
the plain and ordinary meanings of the words.
(b) Statutes or ordinances should be given that interpretation
which renders the ordinance valid and constitutional.
(c) Since zoning regulations are in derogation of private rights of
ownership, words used in a zoning ordinance should be given their
broadest meaning when there is no definition or clear intent to the
contrary and the ordinance should be interpreted in favor of the property
Municipal ordinances are subject to the same rules of construction
as are state statutes . . . . [C]ourts generally may not insert words or
phrases in municipal ordinances in order to express intentions which do
not appear, unless it is clear that the omission was inadvertent, and must
give to a statute (or ordinance) the plain and ordinary meaning of the
words employed by the legislative body (here the City Council).
Rinker Materials Corp. v. City of North Miami, 286 So. 2d 552,
553-54 (Fla. 1973)
(citations and footnotes omitted).

It's amazing how frequently local governments, boards of appeal, and circuit courts forget these basic canons.

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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.