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Land Use and Local Government Law and Litigation

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Just What Can You Do After Quashal?

In Hernandez-Canton et al v. Miami City Commission et al, the 3d DCA held that the city commission and circuit court erred in interpreting an earlier decision it had issued in the same matter.

The dispute goes to whether an application was vested against changes in the zoning regulations. The vesting provision in the amending resolution sets a particular date for having a complete application submitted. In the first case, here's the link to the original Morningside opinion, the 3d District found that the application was subject to the new regulations because the approval resolution on its face established that the "completeness" date was after the vesting date. Here's the most relevant part of the opinion:
The City’s zoning resolution states, in the second "whereas" clause, that "on
February 10, 2004, . . . [the developer] submitted a complete Application for
the previously reviewed Major Use Special Permit application . . . ." (Emphasis
added). By the terms of the resolution, the City treated the application as
being complete on February 10, 2004. This was after the effective date of the
new ordinance.
Section 1305.2.1 of the zoning code provides in substance for
grandfathering of "any complete application for development filed prior to
January 1, 2004 . . . ." (Emphasis added). As stated in the zoning resolution,
the application in this case was not complete until February 10, 2004. That
being so, the January 2004 amendments are applicable to this application.

On remand, the City Attorney apparently took the position that the resolution approving the development was not actually quashed and could be fixed by entering new findings. The City Commission apparently reapproved the resolution. Here's how the 3d DCA describes it:

The City Attorney took the view that our court had left the 2004 zoning
resolution intact, and had simply remanded so that the City Commission could
make findings in support of its 2004 resolution. The objectors argued that the
earlier zoning resolution could not stand in view of this court’s determination
that the 2004 resolution was based on the wrong law, i.e., the wrong version of
Section 1305.
The City Commission accepted the proposition that its 2004 zoning resolution had not been overturned. The City Commission enacted a new zoning resolution which made the findings contemplated by the new version of Section 1305. The objectors sought certiorari review in the appellate division of the circuit court, which was denied.
The objectors then sought second-tier certiorari review in this court. The petition for certiorari is well taken.
OK, so what this does NOT tell us is whether the findings that the City Commission entered were new findings that the application was in fact complete prior to the "drop dead date." We also don't know whether new findings were challenged as being supported or supportable by competent substantial evidence, or simply that the City Commission didn't have the legal right to alter its earlier finding on remand.

The 3d goes on to make this out to be a big misunderstanding of its earlier opinion and to provide very precise instructions on the scope of its decision:
We must respectfully say that our prior opinion was misinterpreted in the
proceedings on remand. In order for the developer’s application to be approved,
it was necessary for the developer to demonstrate compliance with the new
version of Section 1305. Since the City Commission in 2004 applied the old
version of Section 1305, it follows that the 2004 zoning resolution was
defective and had to be set aside. It was necessary for the City Commission to
conduct a new hearing and make a determination whether the developer’s proposed
project does, or does not, comply with the new version of Section 1305.
We therefore grant certiorari and quash the decision of the circuit court appellate
division. We vacate the 2006 and 2004 zoning resolutions. We remand this matter
to the circuit court appellate division, with directions to remand the matter to
the City Commission for a new hearing and determination by the City Commission
whether the proposed project does, or does not, comply with Section 1305 as
amended in 2004. At the new hearing, the developer has the burden of
demonstrating compliance with the new version of Section 1305.

OK, it's obvious that if the project could meet the amended versions there would be no dispute here. BTW, it's also very unclear whether the court's instructions violate the Florida Supreme Court's determination in G.B.V. regarding what "quashal" and "remand" mean, and the limits on judicial authority in cert cases.

What's interesting is that the Court, without ever saying so, is holding that the City was not free to make new findings regarding the "completeness date" and whether the application therefore could be processed under the earlier regulations.

I find this case very troublesome all around. On one hand, it is hard to avoid the conclusion that the developer and the City were playing hard and fast with the rules, in both hearings. On the other hand, the facts we have are those in the 3d DCA opinions, and (sorry to say) the Court clearly has a bias on how it makes these cases come out.

Moreover, the Court does not help us at all understand what it thinks are the rules on remands. It is saying that, as a matter of law, on remand the City Commission can treat the application as still open, open a new evidentiary hearing, and approve the application if the developer proves that it meets the later ordinance. On the other hand, the Court is foreclosing - without discussion- the question of whether evidence could show that the project is vested.

What's going on? does the Court think that the issue of whether the application was vested is a factual "law of the case" matter that was completely disposed of in the first opinion? If so, why doesn't the Court say so? Is the Court saying that, where a local government makes a finding of fact (even in a whereas clause, rather than in some kind of formal finding), it cannot, on remand, accept evidence on that point and make a different finding ? Does the Court believe that to be the meaning of the "law of the case'? If so, is there an exception where cert was granted because the original finding wasn't supported by CSE? Those kinds of holdings would actually be useful to practitioners because these areas of cert law are still very uncertain. Some kind of legal reasoning would at least give us some reference point as to why the Court is adamant that the case can be opened but only to enter findings as to the later regulations.

The failure of the Court to establish the legal basis for its conclusion that its earlier decision was misunderstood and misapplied leads to two alternative conclusions: First, the Court thinks that the situation was sleazy and is trying to kill the development because it thinks that the City made or will make unjustifiable findings in order to vest project, all for some improper purpose. Second, the Court has no clear idea of the legal principles it is invoking or creating and is simply muddying the waters in total confusion. Well, maybe both could be true.

Getting clear legal bases for opinions is not a "pro development" or "anti-development" issue. Everyone in the process should be able to understand what the rules are and how they will be applied, at all stages from staff reviews to hearings to judicial review.

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