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. 

Fifth District: Finder of Fact Bound by Stipulations to Facts

In an opinion that may be important to attorneys settling disputes over land use issues, the Fifth District in Seminole Electric Co-op v. Dep't of Envt'l Prot. remanded a final order denying an electric plant siting permit to the Secretary with directions to enter an order approving it.

The long and short is that pursuant to certain provisions of the Siting Act, all the parties to an administrative proceeding entered stipulated facts that covered all of the relevant criteria set forth in the Act. The Secretary (whether for political or policy reasons, we don't get to know) tried to remand it to DOAH to get "more facts". When it was pointed out that the Act didn't permit this, the Secretary denied the permit, claiming that the "sparse record" didn't allow the required findings.

The Fifth reversed. The Court found that the stipulations were binding and were complete as to all the required findings. The Secretary could not reject the stipulated facts as insufficient or incomplete when the agency below and the other parties had found them complete, and based on the stipulated facts, there was no basis not to grant the permit.

This is a roadmap for settling other cases that end up in quasi-judicial hearings. While under Chung and other "contracting away the police power" cases, the local government can't enter a settlement agreement that promises that a permit will be granted, it CAN enter a settlement as to all the stipulated facts that will govern a decision (including statements, for example, that the staff finds the application consistent with all elements of the comprehensive plan). This effectively leaves the decision making body with no discretion to deny the permit.

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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.