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. 

3d DCA – Code Enforcement - Right but messed up

Monroe County v. Carter, 34 Fla. L. Weekly D993 (Fla. 3d DCA 2009)

OK - this is a rewrite of my original post, which was based on an incorrect reading of the opinion.

The 3d DCA accepted 2d tier cert review of the a circuit court decision that dismissed the notice of violation in a code enforcement case for failure to cite the date the violation began. The violation discussed (there were 6, only one is disccussed) invovled improper creation of habitable space below the FEMA line.

The objection below was that without a stated 'start date' for the violation, they couldn't state certain defences. The circuit court bought that by adopting provisions from the Part II citation standards and applying them to the notice of violation requrements under Part I. The 3d correctly determines that this was wrong.

The core problem in these cases tends to be that people get written up for doing unpermited work that violates current FEMA/flood control standards and other related violations where the work was done before they bought the place. So the owner doesn't know when or how the work was done. Add in really poor records management by local governments, and you find that the owner can't find permit histories going back 20-30 years.

Mmost local governments adopted FEMA standards around 77-78, and amended them a bunch in the mid-80's, and again in the 90's and again in the last 5 years, with the standards getting more and more strict. Add in again the fact that the bulding code only provides exemptions/grandfathering for permitted work. Add in again that the building code and local codes (and decisions interpreting them) put the burden of proof on the owner to establish grandfathering.

You end up with a situation where totally innocent owners are tagged with violations and can't get the proof they need to show that the property is grandfathered - and the code enforcement people don't really have to prove that a violation occurred when the construction or activity was first done.

So - I'm guessing that the circuit court saw this as a fairness issue and put its finger on the scales by using the "date violation occurred" langauge in the citation section to put the burden on the local government to prove that a current condition was illegal when it started. The 3d not only throws the legal mechanism out, but takes the view that requriing the government to prove that a current, non-conforming situation was a violation when it began would be too burdensome.

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