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. 

Motion to Enforce Mandate may be a Way to Enforce a Writ of Certiorari -- Village of Palmetto Bay v. Palmer Trinity, 37 Fla. L. Weekly D1509 (Fla. 3d DCA, July 5, 2012)

Really, I couldn’t make this stuff up if I wanted to.  The School applied for a rezoning for 32 acres of land and an accompanying special exception and some development variances to expand from 600 students to 1400.  After the Village denied the rezoning request, the circuit court denied cert without opinion.  The Third District reversed, finding that the Village’s action was impermissible reverse spot zoning.

On remand, the School modified the conditions of the zoning request and the special exception application to reduce the number of students to 1150, with conditions to expand the enrollment over time, and eliminated the requested variances.  The Village approved the rezoning and, at the same hearing, heard the special exception.   The staff recommended approval of both, but also included a condition that the School record a 30 year covenant against any further requests for additional buildings, students and other relief.  At the hearing, there was no testimony or evidence in support of the covenant condition, but the School’s attorney objected to it.  There was evidence that the 1150 student enrollment was consistent with traffic and other levels of service.  Neighbors and opponents testified for and against the application.  When the testimony closed, the council began deliberating. 

One of the council members made a motion to reduce the number of students to 900.  There was debate, and the special exception resolution was passed, with the 900 student condition and the 30 year covenant requirement.  The School challenged these conditions in a cert petition.
The circuit court, sitting in its appellate capacity on the cert petition, found that neither of the conditions was supported by competent substantial evidence.  In addition, the circuit court found that the 30 year restrictive covenant was essentially illegal, as a moratorium and beyond the legitimate power of zoning.   The circuit court quashed the conditions and remanded.

The Village then made plans to thwart the School and the circuit court.  The School filed a motion to enforce the mandate (to require the Village to act again on the application) and the Village filed a motion for clarification claiming that the Commission could reconsider the entire application and approval because there was no severability clause in the adopting resolution.  The Circuit Court responded to this Motion, instructing that the Village could not rely on the lack of a severability provision to consider the entire application.  The School then filed an emergency motion with the circuit court to enforce the mandate, claiming the Village was planning to violate the circuit court’s mandate. The Village’s attorney filed a statement and a memo advising the Commission not to reopen the evidentiary portion of the hearing, and the circuit court denied the emergency relief.  The Commission then held its hearing on remand and adopted an amended Resolution on the Special Exception.  The Amended Resolution removed the 900 student cap, but it did not reinstate the 1150 student cap or mention any number of students; resulting in a resolution which kept the existing 600 student limit on the expanded campus, with numerous other conditions designed to accommodate the increase in students. 

The School filed a motion to enforce the mandate (rather than a separate cert petition) which was heard by the circuit court with full appellate proceedings.  The circuit court found the Village’s action in direct violation of the order (as clarified) and mandate.  The circuit court rejected legalistic claims from the Village and intervening neighbors that the mandate only quashed the 900 student cap, but did not require the Village to approve the 1150 student application; and acclaim by the neighbors that the School “waived” its right to challenge the refusal to grant the 1150 student approval by challenging the 900 student cap condition.  The circuit court’s order granted the motion to enforce the mandate and remanded to the Village “for proceedings in accordance with this Order and the Court’s Mandate of March 3, 2011.”

On first tier certiorari back to the 3d DCA, the Court upheld the circuit court's order to enforce its mandate.  

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