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

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. 

How NOT to Attack Inadequate Notice - Why We Really Need a General Review Statute (Again!)

In Marion County v. Kirk, we have a case where the petitioner below screws it up, the trial court gets it right the wrong way, the majority opinion on review completely misses the right result and the dissent gets the right result with incomplete reasoning (albeit not helped by the absence of the petitioner/appellee).

Rule 1: in quasi-judicial matters, if the tribunal does not provide notice (e.g. mailing notice of a hearing) in a manner that comports with the governing statute/ordinance or due process, what is your remedy?

Answer:
1. If you have actual notice and appear that the hearing, you get no relief UNLESS you ask for a continuance and it is unreasonably denied, and then you have to raise this via certiorari as a procedural due process violation UNLESS the statute or ordinance provides another remedy.
2. If you do not get the notice and therefore don't appear, you can file a declaratory action to declare the decision void/ultra vires if it violates a statute/ordinance.
3. If you do not get notice and don't appear, AND the action deprives you of a property right (like it's your property being assessed, or downzoned, or code enforced), you have a right to declaratory relief for violations of due process under the Florida Constitution, as well as to declare the action void. You may have a right to an action under42 U.S.C. 1983, depending on just what they did -- like if they sold your property at a tax sale, or imposed a code enforcement lien, or gassed your dog, or lost your son's body, you have a property right protected by the 14th amendment in the 11th Circuit, but if they merely downzoned you, or denied a development permit, etc., you don't.

So, let's all get together -- if you're claiming lack of notice, you're not limited to cert review of a quasi-judicial decision because the violation not only made the decision invalid (as a violation of due process or jurisdiction), but because the violation also left you unable to protect your rights at the hearing.

Here, we don't know if the petitioner/appellee showed up, but she filed a petition for mandamus (probably to get around the 30 day cert window) claiming that County didn't sent required notices. She demands as relief that the County be ordered to issue notices (again) and hear the action again (ah, but what about the original decision? does renoticing the hearing vacate it? I think not!).

She properly gets an evidentiary hearing, at which the County doesn't quite put on sufficient evidence to actually prove that they sent the notice, and the court finds for her. At which point the County goes "oh, ****" and asks for rehearing, gets it, and brings in affidavits (not witnesses) that the mailing was done. The court rejects the affidavits, enters the writ, and the appeal (without the petitioner participating) proceeds.

The majority ends up holding (a) that because this was quasi-judicial, cert was the remedy and the court was wrong to entertain mandamus; (b) that the court erred in not considering the affidavits, and (c) -- and I really, really, really can't believe this -- that the court erred in not respecting the "presumption of routine practice" under 90.406 of the evidence code, as conclusive that the mailing was done once it was delivered to the group that mails things for the County.

First, as noted above, when you complain about failure to comply with notice requirements, you aren't limited to cert unless you appear. The court's failure to get this means that they just issued an opinion that appears to negate the longstanding rule. I can only assume that the County and developer attorneys sold the court a load of bull when they realized that the petitioner wasn't appearing during the appeal, and probably are giggling about throwing this monkey wrench into the established law.

Moreover, the whole "presumption" rule seems ridiculous as against testimony that the notice wasn't received. I don't think that the court should have/could have relied on affidavits to counter sworn testimony taken under oath and subject to cross examination. If the County blew their case, they should have been asking for rehearing and the right to present the witnesses. And the court should have granted that, and if the affidavit testimony held up, probably should have dismissed the petition - or the dec action if the court had properly reformed the filing.

Which gets us to the dissent. Judge Griffin nails it that the petitioner was not limited to certiorari. She doesn't hit the nail on the head on how the matter should have been reformed -but does end up with the right analysis:

Finally, the question whether this was properly a mandamus proceeding does
not make this decision reversible. The County did have a mandatory, ministerial duty to provide notice to all property owners within 300 feet and to conduct a hearing only after proper notice was given. Since the assertedly improperly noticed hearing had already been conducted, arguably another writ, such as prohibition, would have been more apt. One thing is for sure, however, this did not have to be brought as a certiorari review of the County’s approval of the special use permit. Cf. Bhoola v. City of St. Augustine Beach, 588 So. 2d 666 (Fla. 5th DCA 1991). Consistent with the provisions of Florida Rule of Civil Procedure 1.630 and Florida Rule of Appellate Procedure 9.040(c), the correct denomination of the writ is
not essential. Courts should, and indeed, this court generally does, treat
the application for any extraordinary writ as what it ought to be.

It does appear that a more correct result would have been reached if the
trial judge had exercised his discretion to grant rehearing and had taken further evidence on the County’s procedure for mailing of notice and Ms. Kirk’s actual knowledge of the hearing, but this is a decision allocated to the trial court, not to us.

I am really dreading the day that I see this case cited for the proposition that you can't challenge the failure to provide required notice with an original action, or explaining to a new associate (or just a newer land use lawyer) why the law doesn't restrict you to cert under these facts.

One more piece of evidence for why we really really need a general law governing the review of land use decisions that provides appellate relief (not cert) and the right to issue corrective orders.

46 N. Washington Blvd, Suite 7, Sarasota, FL 34236      Phone (941) 681-8700

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.