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

Land Use and Local Government Law and Litigation

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Quick - Object, even if you don't know how or when

Ok, here's another decision from the same panel the 6th Circuit as in the WalMart case below, equally flawed.

The court started out by dismissing the Petitioners' due process claims on the basis that they failed to make objections on the record to a) ex parte contacts, b) surprise in a party offering a late filed new report.

Here's critical language that could be used by any and all sides in cert actions:

The Petitioners did not object to the fact that there were ex parte
communications, nor request any additional clarification as to the nature or
extent of such communications. The law is well-settled that issues may not be
raised for the first time on certiorari review which were not presented to the
lower tribunal during the quasi-judicial hearing. See G.B.V. International, Ltd.
v. Broward County, 709 So.2d 155, 155 (Fla. 4th DCA 1998) (quashing decision of
circuit court for deciding an issue that was neither presented or decided by the
Commission), quashed in part on other grounds, 787 So.2d 838 (Fla. 2001); see
also Scritchfield v. Dept. of Highway Safety and Motor Vehicles, 648 So.2d 1246,
1247 (Fla. 2d DCA 1995) (stating that without objection the argument has been
waived). Hence, the Court finds that the Petitioners have waived this argument
as no objection was made during the proceedings below. Had a proper objection
been made, the City Commissioners could have effectively dealt with the
Petitioners' concerns.

OK, this is good stuff - and keep it handy for when the chairman of a planning board or county commission objects to your objections. The problem, of course, is that most local government procedures don't formally recognize parties other than the applicant and the staff, and there's generally no way to object other than to stand up from the audience and interrupt.

The real use of this language, however, is for those of us poor souls who get a completely BS denial at the hands of a commission, file cert, and then find the government attorney raising all kinds of new issues ("gee, your honr, they weren't compatible with policy x.y.z," even though no one ever raised that policy during the hearing).

But then on to the bad stuff (and this is bad regardless of whether you represent neighbors/environmental groups or developers/landowners). The Court abandons its responsibility to "say what the law is" (see 3d DCA cases earlier) to the local government, in this language:

The Court is not entitled to reweigh the evidence or substitute its judgment for
that of the agency. See id. As aptly explained by the Florida Supreme Court
in Dusseau v. Metropolitan Dade County Board of County Commissioners, 794
So.2d 1270, 1276 (Fla. 2001), the certiorari standard of review requires
this Court to defer to the City's “superior technical expertise and special
vantage point” in its policy determinations and factual findings. As Dusseau
further clarified,

The issue before this court is not whether the agency's decision is the “best”
decision or the “right” decision or even a “wise” decision, for these are
technical and policy-based determinations properly within the purview of the
agency. The circuit court has no training or experience -- and is inherently
unsuited -- to sit as a roving “super agency” with plenary oversight of such
matters

Horse hockey. A city commission, county commission or even planning commission has no special expertise at interpreting ordinances. They do have political agendas. This judicial attempt to establish some kind of "principled abdication" of its constitutional responsibility to ensure that the law is fairly and reasonable intepreted is nothing but a cop out, one that leaves the polity at the mercy of the government.

And I'll also say that while I think the right result occured, the court also erred in how it approached the analysis of whether the WalMart was a permitted use in the zone district. There was a clear ambiguity or inconsistency between the intent of the district - to allow specialty retail -- and the specific permitted uses -- which included retail stores (without limitation) and shopping centers.

The issue: "specialty retail" is a land use and transportation planning term of art, and it does NOT include big box stores like WalMarts. Based on the intent of the district, as properly interpreted by planning experts, not commissioners, the WalMart was NOT permitted. However, the actual permitted uses included retail uses and shopping centers. Absent a seperate definition of "big box" that distinguished these bohemeths from true specialty retail uses, the rules of construction (remember - zoning in derogation of private property rights, so interpretation goes to the landowner) demand that the more specific (the use) rule over the more general (the intent). THAT'S the kind of analysis we need from our courts to ensure that zoning regulations are interpreted fairly for all sides. Abandoning that reasoning to the local government (unless they actually do it and do it right - HAH), is like putting Dick Chaney in charge of the Justice Dep'ts Division of Civil Rights - or appointing him to sit on a FISA tribunal.

Finally, the court rolled out the tired (and IMHO wrong at 1st tier review) old "miscarriage of justice" standard that started out its life as a policy to help narrow 2d tier review, but now has got a life of its own ensuring that the circuit courts don't actually do justice in these cases (violating our right to access to the courts, if you think about it).

Anyway - here's the the opinion:

13 Fla. L. Weekly Supp. 774a
CONCERNED CITIZENS OF TARPON SPRINGS, INC., HARRY BATUYIOS, DENNIS BROWN, DOROTHY BROWN, WENDY CROSATO, BRIAN R. CROSATO, JEAN DORRELL, HELEN GLADWIN, BILL GLADWIN, WILLIAM HOOPER, CHRIS HRABOVSKY, RICHARD MURDACH, EDWARD SKAALAND, JOAN SKAALAND, JOHN K. TARAPANI, CHARLES VAN WINKLE, SHARON VAN WINKLE, and WILLIAM L. VINSON, Petitioners, vs. CITY OF TARPON SPRINGS, FLORIDA, and WAL-MART STORES EAST, LP, Respondents. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 05-0014AP-88B. UCN522005AP000014XXXXCV. March 22, 2006. Counsel: C. Phillip Campbell, Theodore C. Taub, Tammy N. Giroux, and Mark A. Connolly, Tampa. John G. Hubbard, Dunedin. David A. Theriaque, Suzanne Van Wyk, Timothy E. Dennis, Tallahassee.
ORDER DENYING AMENDED PETITION
FOR WRIT OF CERTIORARI
THIS CAUSE came before the Court on the Amended Petition for Writ of Certiorari, the Joint Response to Second Order to Show Cause, and the Petitioners' Reply. Upon consideration of the briefs, the record and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.
The Petitioners, Concerned Citizens of Tarpon Springs, Inc., Harry Batuyios, Dennis Brown, Dorothy Brown, Wendy Crosato, Brian R. Crosato, Jean Dorrell, Helen Gladwin, Bill Gladwin, William Hooper, Chris Hrabovsky, Richard Murdach, Edward Skaaland, Joan Skaaland, John K. Tarapani, Charles Van Winkle, Sharon Van Winkle, and William L. Vinson (Petitioners), seek review of Resolution 2004-63, entered January 19, 2005, by the Respondent, City of Tarpon Springs, Florida (City), to approve the site plan, with conditions, submitted by the Respondent, Wal-Mart Stores East, LP (Wal-Mart). These Petitioners have standing.1 In reviewing the administrative action taken by the City, the Court must consider whether the Petitioners were afforded procedural due process, whether the essential requirements of law were observed and whether the Resolution is supported by competent substantial evidence. See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995) (setting forth the standard of certiorari review of administrative action).
The record shows that Wal-Mart submitted a site plan proposal for the development of a 74.4 acre parcel of land, described as Lot 1, located off of U.S. 19 and bordered on one side by the Anclote River. There are two other designated lots, Lot 2 and Lot 3, and other designated tracts on the property which do not directly involve the Wal-Mart proposal. The land is currently zoned General Business (GB), which specifically includes “Retail Sales Establishments” and “Shopping Centers” as permitted uses. Retail Sales Establishments is defined in the City's Code as: “Any establishment where the primary use is the sale of goods or merchandise to the general public for personal or household consumption.”
After a 13-hour public hearing, the Board of Commissioners of the City of Tarpon Springs (City Commission), in a 3 to 2 vote, approved Resolution 2004-63. The Resolution approved the site plan with several conditions, to wit:
1. The developer is responsible for acquiring all other jurisdictional permits and for meeting the minimum criteria of the Land Development Code.
2. Construction plans, signed and sealed by a registered engineer licensed to practice in the State of Florida, must be submitted within one year of the date of final site plan approval.
3. All conditions and requirements of the final Development Agreement (ATTACHMENT B) must be performed on a timely basis, as applicable.
4. Master meters and utility line adjustments per the requirements of the City of Tarpon Springs Utility Division.
5. Plat approval is required for the subdivision into three lots.
6. Submission of revised traffic impact study with follow-on review by TBE Group for compliance with City of Tarpon Springs transportation concurrency management requirements or reduction of scope of project to within 50% of allowable floor area ratio. No development permits will be issued until concurrency requirements are accomplished.
7. A 50' buffer is required along the Anclote River.
8. A physical barrier is required between the Anclote River and the building/parking lot to prevent run-off into the river.
The Development Agreement, incorporated into the Resolution as Attachment B, is a 24-page document that sets forth several more conditions and restrictions, including that the owner must seek rezoning of Lot 2 from GB to Residential Office (RO), within 18 months of the effective date of the Development Agreement, to be compatible with the City's land-use classification. The Development Agreement clarifies that no residential development is permitted without the appropriate permits to allow residential use. Lot 3 is to be limited to development of a maximum of 8,000 square feet of commercial retail.
The Petitioners have raised several issues before this Court. The Petitioners first argue that they were denied due process as the City Commission failed to disclose the substance of ex parte communications; the City failed to require rezoning of the subject property, and; Wal-Mart failed to timely submit a traffic study. The Petitioners next argue that the City's decision does not conform to the essential requirements of law because of incomplete abandonment of development of regional impact; the site plan violates the City's Code, and; the site plan violates the City's comprehensive land development plan. Lastly, the Petitioners argue that the Resolution is not supported by competent substantial evidence because the traffic study was incomplete and the City's decision was influenced by prejudice and bias.
Before addressing each issue, the Court reiterates that in conducting certiorari review of the underlying action it has neither the duty nor the authority to decide whether it is good public policy to allow Wal-Mart to build a supercenter at this particular location. Rather, as set forth in Haines City, this Court's review is governed by a three-part standard: whether procedural due process has been accorded; whether the essential requirements of law were observed; and, whether the findings and judgment are supported by competent substantial evidence. See Haines City, 658 So.2d at 530. In applying the procedural due process prong, the Court must consider whether the Petitioners were provided with fair notice and an opportunity to be heard. See Keys Citizen for Responsible Government, Inc. v. Florida Keys Aqueduct Authority, 795 So.2d 940, 938 (Fla. 2001) (explaining the parameters of due process within an administrative proceeding). In determining whether the City observed the essential requirements of law, the Court must consider whether an error occurred and, if so, whether such error resulted in a gross miscarriage of justice. See Haines, 658 So.2d at 527; see also Housing Authority of the City of Tampa v. Burton, 874 So.2d 6, 8 (Fla. 2d DCA 2004) (explaining that in determining whether there has been a departure from the essential requirements of law, the appellate court “should not be as concerned with the mere existence of legal error as much as with the seriousness of the error”).
In evaluating the last prong of review, competent substantial evidence has been described as evidence that is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.” See Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002) (citing De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957). The Court is not entitled to reweigh the evidence or substitute its judgment for that of the agency. See id. As aptly explained by the Florida Supreme Court in Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1276 (Fla. 2001), the certiorari standard of review requires this Court to defer to the City's “superior technical expertise and special vantage point” in its policy determinations and factual findings. As Dusseau further clarified,
The issue before this court is not whether the agency's decision is the “best” decision or the “right” decision or even a “wise” decision, for these are technical and policy-based determinations properly within the purview of the agency. The circuit court has no training or experience -- and is inherently unsuited -- to sit as a roving “super agency” with plenary oversight of such matters.
With that standard in mind, the Court reaches the following decision as to each issue.
Due Process
1. Failure to disclose substance of ex parte communications
The Court finds that before the hearing began on January 18th, the City Commissioners disclosed on the record any ex parte communications they had with either side. All of the Commissioners disclosed that they had talked with opponents of the site plan proposal; 4 of the 5 Commissioners disclosed that they had talked with Wal-Mart representatives. The Petitioners did not object to the fact that there were ex parte communications, nor request any additional clarification as to the nature or extent of such communications. The law is well-settled that issues may not be raised for the first time on certiorari review which were not presented to the lower tribunal during the quasi-judicial hearing. See G.B.V. International, Ltd. v. Broward County, 709 So.2d 155, 155 (Fla. 4th DCA 1998) (quashing decision of circuit court for deciding an issue that was neither presented or decided by the Commission), quashed in part on other grounds, 787 So.2d 838 (Fla. 2001); see also Scritchfield v. Dept. of Highway Safety and Motor Vehicles, 648 So.2d 1246, 1247 (Fla. 2d DCA 1995) (stating that without objection the argument has been waived). Hence, the Court finds that the Petitioners have waived this argument as no objection was made during the proceedings below. Had a proper objection been made, the City Commissioners could have effectively dealt with the Petitioners' concerns.
2. Failure to require rezoning of the subject property
There are no facts, nor any legal authority, cited by the Petitioners that the City rezoned the property, de facto, without requiring Wal-Mart to go through the necessary rezoning process. The Petitioners' argument is that the property's current zoning, GB, does not allow for the development of a Wal-Mart Supercenter. As explained in greater depth below, the Court finds that the proposed development of Lot 1 squarely falls within the GB zoning classification. Further, there is no dispute that Lot 2, which is not a part of the development of Lot 1, is not properly zoned for residential development. As a condition of the Resolution, Wal-Mart will be required to go through the proper rezoning process before any residential development can proceed at which time the Petitioners can present any objections they may have to such proposed development.
3. Failure to timely submit traffic study
As with the ex parte communications issue, the Court finds that the Petitioners have waived this argument by failing to expressly object to the introduction of the Supplement Traffic Analysis during the January 18th hearing. See id. The Petitioners did not request additional time to review the traffic report. Further, even if the Petitioners had not waived this argument, the record shows that the Petitioners were fully afforded the right to present evidence and testimony during the January 18th hearing, as well as the opportunity to cross-examine the traffic experts presented by the City and Wal-Mart. Under these facts, the Courts finds that the Petitioners were afforded procedural due process.
Essential Requirements of Law
1. Incomplete abandonment of development of regional impact
In reviewing this issue, the Court finds that the Petitioners do not have standing to argue this matter as Florida Statutes, § 380.07(2), confers standing only to the owner, developer, or state land planning agency to appeal a DRI development order or abandonment order; even then, the order must be appealed to the Florida Land and Water Adjudicatory Commission. However, assuming this issue were properly before the Court, there is no support for the Petitioners' argument that the DRI Abandonment Order, entered beyond the 90-day time frame due to scheduling delays caused by three hurricanes, is a nullity. See e.g. Caliente Partnership v. Johnston, 604 So.2d 886, 887 (Fla. 2d DCA 1991) (holding that the failure to publish a notice of intent for a plan amendment within the statutorily prescribed forty-five days is not grounds for approval by default); School Board of Leon County v. Weaver, 556 So.2d 443, 446 (Fla. 1st DCA 1990) (holding that failure to enter a final order within the statutorily prescribed ninety days from receipt of a recommended order does not warrant reversal unless the fairness of the proceeding or the correctness of the action is impaired by virtue of the statute's violation).
2. Proposed use of the site plan violates the City's Code: (a) the site plan does not comply with the Code; (b) the site plan circumvents procedural requirements for conditional uses, and; (c) the site plan application is incomplete
The Court finds that the proposed use of the site plan, specifically Lot 1, is a permitted use in a GB zoning. The City's Code, Section 25.11 states, in pertinent part:
(A) The GB District is established to provide for the development of a centralized commercial area where specialty retail, restaurant, office and residential uses are readily available. This district is intended to encourage redevelopment of traditional shopping areas and promote cultural tourism within the National Register Historic District and Cultural Preservation District which function to serve the immediate residential neighborhoods and the community as a whole.
(B) Permitted uses; (15) Retail Sales Establishments; (18) Shopping Centers. (emphasis added).
As previously stated, “Retail Sales Establishment” includes “[a]ny establishment where the primary use is the sale of goods or merchandise to the general public for personal or household consumption.”2
The Petitioners focus on the words “specialty retail” to argue that the proposed development is not a permitted use under GB zoning. However, while the intent of the GB district is to encourage specialty retail, the district does not limit retail solely to “specialty.” Rather, the Code unambiguously and expressly allows for retail sales establishments, as well as shopping centers, with no limitation to specialty retail. The Court finds that the Wal-Mart Supercenter falls squarely within the definition of a “Retail Sales Establishment” and, for all practical purposes, is essentially a Shopping Center. To find that development in the GB zoning is limited only to specialty retail would render portions of the Code a nullity. See Florida Dept. of Revenue v. Florida Municipal Power Agency, 789 So.2d 320, 324 (Fla. 2001) (explaining that a court's function is to interpret statutes to give effect to each word and avoid interpretations that would render portions of it useless); see also Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273, 1286 (Fla. 2000) (same). The Court finds that under these facts, it must defer to the City's interpretation that the proposed Wal-Mart is a permitted use within the GB zoning. See Palm Beach, 772 So.2d at 1283 (explaining that courts will defer to an agency's interpretation of statutes and rules the agency is charge with enforcing unless contrary to law); see also Paloumbis v. City of Miami Beach, 840 So.2d 297, 298-98 (Fla. 3rd DCA 2003) (holding that administrative interpretation of personnel rules is entitled to judicial deference as long as it is within the range of possible interpretations).
3. The site plan violates the comprehensive plan
The Petitioners argue that the City erred in approving the site plan without first requiring Wal-Mart to seek conditional use approval for potential future residential development of Lot 2. However, one condition of the Resolution is that plat approval is required for the subdivision of the property into three lots. Further, the Development Agreement requires the property owner, Wal-Mart, to seek rezoning of Lot 2 from GB to Residential Office (RO), within 18 months of the effective date of the Development Agreement, and further states that no residential development will be permitted without the appropriate permits. As held above, the Petitioners will have an opportunity to be heard if, at some point in the future, Wal-Mart seeks to rezone Lot 2 from GB to RO for residential development. Lastly, to the extent that the Petitioners seek to challenge the of the consistency of the Resolution with the City's Comprehensive Plan, such a challenge must be pursued as an action for declaratory and injunctive relief pursuant to Florida Statutes, § 163.3215(1).3 See Parker v. Leon County, 627 So.2d 476, 478-79 (Fla. 1993); see also Turner v. Sumter County, Board Of County Commissioners, 649 So.2d 276, 276 (Fla. 5th DCA 1993).
Competent substantial evidence
1. Incomplete traffic study
The Court finds that there is nothing in the record to show that the Supplemental Traffic Study was incomplete. Rather, the record shows that the City Commission considered the testimony and evidence presented from the City's Planning and Zoning Director, the City's Development Services Director, the City's traffic consultant, Wal-Mart's project engineer and Wal-Mart's planning expert, along with the Staff Report recommending approval of the Wal-Mart site plan before concluding that the traffic study was sufficient to support its decision to approve the Site Plan. The Court cannot reweigh the evidence nor substitute its judgment for that of the City to arrive at a different conclusion. See Dusseau, supra.
Further, the Court finds that the traffic impact on the proposed development is still subject to review by the City. As set forth in condition # 6 of the Resolution, Wal-Mart must still submit a revised traffic impact study to be reviewed for compliance with the City's transportation concurrency management requirements before any development permits will be issued.
2. Evidence of prejudice and bias
In reviewing the last issue, the Court finds that the City attorney did prepare a memorandum, at the request of the City's Mayor, dated January 10, 2005, and addressed to the City Commission, that outlined possible litigation issues that could arise from granting or denying Wal-Mart's proposed site plan. The Court finds that, standing alone, it is not inappropriate for the City to consider the legal consequences of its actions. In the memorandum, the City Attorney stressed that the City Commission must base its decision on competent substantial evidence presented at the hearing and not on possible litigation that might arise from its decision. While some Commission members may have been influenced, to some degree, by concern about litigation, there is nothing in the record to suggest that this was the basis for any votes. Furthermore, this has nothing to do with the sufficiency of the evidence.
In conclusion, the Court finds that the Petitioners were afforded procedural due process, the City observed the essential requirements of law, and the Resolution is supported by competent substantial evidence. Accordingly, the Petitioners' request for certiorari relief must be denied.
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby denied. (DAVID A. DEMERS, PETER RAMSBERGER, and ANTHONY RONDOLINO, JJ.)
__________________
1As a preliminary matter, this Court, in an order entered July 28, 2005, granted, in part, the Respondents' motion to dismiss amended petition based on lack of standing. The motion to dismiss was granted only to the extent that the Court had no jurisdiction over those Petitioners not named in the original petition. Concerned Citizens, incorporated after the underlying hearing but comprised of citizens with standing to appeal, and the remaining named Petitioners were allowed to proceed with the petition for writ of certiorari.
2There is not a definition of “Shopping Center” provided in the record. However, the Court finds that the term Shopping Center is self-explanatory and unambiguous.
3The Court notes that there is a separate declaratory action, filed by the Petitioners pursuant to Florida Statutes, § 163.3215, currently pending at the trial court level.

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