Land Use and Local Government Law and Litigation

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3d DCA: Plain Meaning Trumps Administrative Interpretation

In another interesting opinion from the 3d DCA (who has replaced the 5th as the district court most likely to issue an interesting statement of land use law), we have City of Coral Gables Code Enforcement Board et al v. Tien.

Facts: One landowner has a yacht that is longer than his canal-front lot in Coral Gables is wide, and ties it up there. Obvious result: the bow or stern overhangs neighboring property. City has an ordinance that requires a person to own a lot to which they tie a boat (language is provided below). Neighbor complains, and a code enforcement officer cites the boatowner.

Then boatowner appeals the citation to the Code Enforcement Board. The Code Enforcement Board, advised by the City Attorney, reads the literal language of the ordinance to require only ownership of the property to which the yacht is affixed, not to require ownership of all lands that the yacht might then front, cover, or block, and dismisses the violation.

The neighbor then files for first tier certiorari. FIRST PRACTICE NOTE: This was wrong, procedurally. Review of the actions of a Code Enforcement Board that is acting pursuant to Chapter 162 is by appeal to the circuit court, not by certiorari. The circuit court on certiorari, decides for the neighbor, and the boat owner and Code Enforcement Board file for second tier certiorari to the District Court (this was procedurally correct, because there is no statute granting discretionary review authority of circuit court decisions to the district court).

Before getting to the opinion, here's the operative language:
It shall be unlawful for any person to anchor, moor or tie up any boat or craft
of any and every nature whatsoever to any waterfront property abutting the
waterways and canals within the city, unless he is the owner of the property to
which the craft is anchored, moored or tied up or is the lessee of improved
property having a dwelling structure thereon, under a written lease from the
owner of the fee simple title to such property or is the guest in the house of
the owner of improved property having a dwelling structure thereon.

The District Court grants cert and quashes the circuit court decision, with the following language:

We recognize at the outset that the scope of our review at this stage of the
proceeding is quite limited. Where, as here, “full review of administrative
action is given in the circuit court as a matter of right,” a litigant “is not
entitled to a second full review in the district court.” City of Deerfield Beach
v. Vaillant
, 419 So. 2d 624, 626 (Fla. 1982). However, where “there has been a
violation of a clearly established principle of law resulting in a miscarriage
of justice,” then we are authorized to reach down and supply relief. Allstate
Ins. Co. v. Kaklamanos
, 843 So. 2d 885, 888 (Fla. 2003) (citing Ivey v. Allstate
Ins. Co.
, 774 So. 2d 679, 682 (Fla. 2000)). As the court noted in Kaklamanos,
“‛clearly established law’ can derive from a variety of legal sources, including
recent controlling case law, rules of court, statutes, and constitutional law.”
Kaklamanos, 843 So. 2d at 890. To that list, we today add municipal ordinances.
Applying Kaklamanos, we conclude it would be a violation of “clearly established
law” and a substantial “miscarriage of justice” if this mega-yacht was banned
from the City of Coral Gables based upon this ordinance.
We are compelled to this conclusion based upon a plain reading of the ordinance.

SECOND PRACTICE NOTE: The court has given practitioners some very strong language to use here.. First, the 3d DCA is providing a supporting corollary to its opinions last year that the courts must stand ready to ensure that the laws are properly interpreted, and that the district courts are not potted plants that have to accept improper decisions under the "miscarriage" standard or based on their limited review. Auerbach v. City of Miami, 929 So.2d 623 (Fla. 3d DCA 2006), here's the link to the 3d DCA opinion; see also Osborn v. Board of County Comm'rs (Monroe). Compare the Fifth DCA opinion and dissent in Board of County Commissioners v. City ov Cocoa, where the court turned a blind eye to a clearly illegal annexation based on the "miscarriage" label.

What happens next in the opinion is equally interesting and powerful: a declaration for judicial autonomy in interpreting codes:
We note the City of Coral Gables has filed its own petition for certiorari
aligning itself with Bared. The City suggests, based upon earlier authority of
this Court, we must defer to its “superior technical expertise and special
vantage point” in interpreting this ordinance. See City of Hialeah Gardens v.
Miami-Dade Charter Found., Inc.,
857 So. 2d 202, 206 (Fla. 3d DCA 2003). The
City reads too much into our City of Hialeah decision. We are not required to
and do not defer to an agency’s construction or application of a law or
ordinance where we are equally capable of reading the ordinance
. Fla. Hosp. v. Agency for Health Care Admin., 823 So. 2d 844, 848 (Fla. 1st DCA 2002) (“[A] court need not defer to an agency's construction or application of a statute if
special agency expertise is not required, or if the agency's interpretation
conflicts with the plain and ordinary meaning of the statute.”). A plain reading
of the ordinance in this case requires that we quash the decision below. Holly
v. Auld
, 450 So. 2d 217, 219 (Fla. 1984) (“When the language of the statute is
clear and unambiguous and conveys a clear and definite meaning, there is no
occasion for resorting to the rules of statutory interpretation and
construction; the statute must be given its plain and obvious meaning.”)
(quoting A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla. 1931)). We feel
confident the City knows how to properly craft an ordinance to protect its
citizens from unwanted intrusions by mega-yachts if it so desires.(emphasis added).

THIRD PRACTICE NOTE: Believe it or not, this is pretty hot stuff. Whenever you challenge a local decision, the local government attorney's are constantly throwing Hialeah, Palumbus, and a handful of other "deference to local agency" cases on the table for the proposition that a local agency or administrator's action can only be overturned if it involves a "clearly erroneous" interpretation of the law, regardless of how clear the law is. While this decision doesn't quite reach that issue directly, it does provide ammunition for the proposition that a reviewing court can apply its own interpretation of clear and unambiguous ordinances.

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