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. 

Filtering by Tag: declaratory

2d DCA – Building Permit Decisions are NOT Quasi-Judicial and Not Subject to Certiorari Review

City of St. Pete Beach and Ronald Holehouse v. Sowa, 4 So.3d 1245 (Fla. 2d DCA 2009)
The 2d DCA overtuned a circuit court decision that granted certiorari review of a decision of the building official to issue a building permit. The 2d DCA properly found that the building official’s decision was not quasi-judicial and therefore not subject to certiorari review. This should not be news to anyone (see, e.g. Pleasure II Adult Video v. City of Sarasota - directly on point), but attorneys not versed in land use law – and circuit courts – continue to screw it up.
Note – any declaratory action to challenge this decision will/should probably be dismissed for failure to exhaust administrative remedies that are provided by the Florida Building Code.

1st DCA Dismisses Attack on Affordable Housing Ordinance for Lack of Standing

Fla. ome Builders, Inc. et al v. City of Tallahassee, 34 Fla. L. Weekly D1096

An individual, a homebuilder with an affected project, and a group of industry representatives filed a declaratory action against Tallahassee’s affordable housing (forced inclusionary zoning) ordinance. The trial court upheld the ordinance.
The individual had been found not to have standing and did not appeal. The affected builder had separately announced its intention to abandon its project, though how this become part of the record is not stated. The 1st then found that the record was insufficient to allow the Florida Home Builders and Leon County Builders to have standing because the record did not disclose how a significant number of their members might be affected.
This is a very disturbing ruling and clearly portends more contentious litigation over these types of issues in the future. Landowners and builders should have standing to challenge these ordinances BEFORE they are faced with a denial for refusing to include affordable housing that the government is trying to extract from them. Creating standing barriers for the organizations that represent them puts an unfair burden on individual builders.
This only invites more legislation like this year’s impact fee statute.

3d DCA - "Side" Interpretation of Code Not Separately Reveiwable

In City of Sunny Isles Beach v. Publix, the 3d DCA continued its apparent quest to tell the appellate division of Dade County never to side with a landowner or developer on a land development code issue.

The 3d issued a writ of prohibition preventing the circuit court from hearing a declaratory action brought by Publix against a written interpretation of the local zoning code by the city attorney. The code provided NO local administrative appeal of such a decision.

The 3d granted prohibition on the grounds that the opinion was used in the city commission's denial of Publix's site plan, and that decision was being reviewed by certiorari, so that would be the only review under the rubric that there is no judicial remedy until administrative remedies are exhausted.

Well, all very nice, but the bottom line is that cert review of the denial doesn't get fair review of the issue, for several reasons:
1. If there's any other basis to justify the denial, there's no review of that legal opinion or error.
2. The standard of review at that point is totally unclear because cert review is not to determine "mere legal error" but only "gross" errors that are fundamental (at least when a landowner is seeking review; when it's the government, any error appears to be fundamental in the 3d). Pile on top of that the unclear status of how much discretion to give the local interpretation, and you get a situation where the decision would not be overturned unless there was a finding in the order that flatly contradicted the ordinance AND it was clear from the order that the erroneous construction was the sole reason for the denial.
3 Then throw on top of this the "miscarriage of justice" standard, which was originally added to the 2d tier review standards to indicate further the kind of discretion there is in the discretionary review, but which shows up frequently in circuit court cert opinions.

The upshot is that the issue doesn't actually get resolved and determined. The city will win the cert petition and then claim that this vindicates the interpretation. Which it doesn't and can't.

Which gets to the really interesting problem: a circuit court's review of a local decision really can't be taken as "stare decisis" regarding any interpretation of a local ordinance involved for the simple reason that the court isn't determining whether the interpretation was right or wrong, it's whether it was so totally illegal as applied to particular facts that it created a miscarriage of justice.

Which in turn means that there is no real means in Florida today (and certainly in the 3d District, based on this opinion) to get a full and fair determination of the meaning of local zoning and environmental regulations. Back to the need for a statutory remedy for the review of local ordinances and decisions.

Sometimes, a Developer Does Have a Collateral Attack on a Quasi-Judicial Denial

In Palazzo Las Olas Group LLC v. City of Ft Lauderdale, the 4th District threw out the circuit court's dismissal of a lawsuit filed by a frustrated developer over the city's denial of a site plan for a project that had been the subject of an RFP issued by the city's Community Revitalization Agency and also to long negotiations with the City.

The circuit court agreed with the city that the developer's only remedy was certiorari review of the denial. The 4th District disagreed, holding that under the facts of the case the developer had collateral estoppel and various other claims that could not have been addressed in the certiorari review process.

The facts may be pretty close to unique (if almost predictable): The City, through the CRA had a parking garage near the beach at the end of Las Olas Blvd. It wanted the property redeveloped, so put out an RFP. It seems that the terms of the RFP looked for a use of the property that would require amendments, variances, or conditions on the ultimate site plan approval from the standard terms of the zoning ordinance. The developer wins the RFP, gets the land under contract and starts negotiating the details of the site plan and conditions.

In the meantime, politics being what they are, opposition arises. Ultimately the elected mayor and some of the council are elected and clearly oppose the project. The developer claims that the mayor drove the staff to take positions that delayed staff completeness and otherwise abused the process until the opposition counsel members took office so they could vote to deny the project.

Project gets denied, cert gets denied, developer files multicount complaint, the essence of which is estoppel, bad faith, etc. Developer claims to have $5M tied up into the project based on City's representations not only that it wanted the project, but that it wanted the project in a form that required the variances/exceptions that later justified the denial.

The circuit court bought the argument that cert is the only remedy and dismissed the complaint with prejudice. The 4th, while suspecting that some of the claims will be resolved on summary judgment or judgment on the pleadings, disagreed with respect to most of the claims. Here's the language that we'll need to know for later:

While we agree that Palazzo could only obtain a reversal of the Commission’s
actual decision denying it site plan approval via a petition for writ of
certiorari, we do not believe that this bars the pursuit of other civil

First, during certiorari proceedings seeking to challenge the denial of the site plan, the issues that can be addressed are extremely limited. In such a proceeding, the circuit court would be limited "to determin[ing] (1) whether the agency afforded procedural due process; (2) whether the agency observed the essential requirements of law; and (3) whether competent, substantial evidence supported the agency’s findings and judgment." See, e.g., Powell v. City of Sarasota, 953 So. 2d 5, 6 (Fla. 2d DCA 2006). Consequently, the circuit court could never reach issues concerning whether the City had contractually agreed to waive certain permitting requirements as alleged by Palazzo or whether, based upon the City’s actions, the City was equitably estopped from denying site plan approval. Cf. Citrus County v. Fla. Rock Indus., Inc., 726 So. 2d 383, 387 (Fla. 5th DCA 1999) (holding "common law issues" concerning whether County was estopped from denying permit because of its acquiescence over the years, the permit applicant’s good faith reliance on actions of County, and the permit applicant’s commitment of resources had no place in administrative permitting process or in certiorari review of decision denying permit).

Second, much of what underlies Palazzo’s civil claims, and particularly counts I and III, is an allegation that as a consequence of the City’s own actions it is now estopped from denying site plan approval. Florida’s courts have long recognized that local government entities must deal fairly with their citizens and that, in the absence of fair dealing, the doctrine of equitable estoppel may be invoked.

. . .

Consistent with these principles, there are Florida cases suggesting that a civil suit will lie against a governmental entity where it has engaged in alleged unfair dealing. In Sundstrom v. Collier County, 385 So. 2d 1158 (Fla. 2d DCA 1980), the owner of real property obtained a building permit and spent money to commence work on the project. Thereafter, the zoning board issued a stop-work order. The property owner failed to timely seek certiorari review and, instead, filed a petition for writ of mandamus. The trial court dismissed the petition with prejudice as a consequence of the owner’s failure to timely seek review of the order via the filing of a petition for writ of certiorari. The appellate court agreed that mandamus was not the appropriate remedy, but nonetheless reversed the dismissal with prejudice because the owner should have been afforded the opportunity to "state a cause of action in equity for equitable estoppel, declaratory relief, or an injunction." Id. at 1159. And, Florida Rock Industries, 726 So. 2d at 383, Town of Largo v. Imperial Homes Corp., 309 So. 2d at 571, and Town of Longboat Key v. Mezrah, 467 So. 2d 488 (Fla. 2d DCA 1985), each involved the circumstance where a property owner/applicant brought a civil action for declaratory relief and/or an injunction, asserting that the governmental entities’ prior conduct was such that it was estopped from taking the complained-of action. And, in Florida Rock Industries, the property owner simultaneously filed a petition for writ of certiorari, seeking review of the order on its application for determination of vested rights, and a civil complaint, seeking declaratory relief and alleging equitable estoppel. 726 So. 2d at 386.

Having considered the above authorities and principals and the limitations of certiorari review, we hold that while any direct challenge seeking to overturn the Commission’s decision denying site plan approval had to be sought via the filing of a petition for writ of certiorari, this did not preclude Palazzo from bringing a civil suit, wherein it sought relief on matters beyond those appropriately addressed during the certiorari proceeding. The trial cour

Wow. The Court is holding that if you have a valid legal issue that lies outside the scope of certiorari relief, you get to plead a separate cause of action. This has long been recognized in cases involving notice, and also where the relief is under a different statute than the decision was taken under. (see Omnipoint III - the 3d DCA case on remand, and various takings cases).

The interesting fight here ultimately will be the issue of estoppel versus "you can't contract away the police power." A second issue may become the kind of "inequitable conduct" that may lead to estoppel, as the Court seems to be broadening the potential scope. Historically, good faith reliance could be founded only on a lawfully issued statement or decision. Here, the 4th DCA is permitting a "course of conduct" pleading to establish a legally sufficient basis for pleading estoppel.

It will be interesting to see whether this case settles quickly, or only after the circuit court has another go-round at the issues.

More to This Than Meets the Eye: Dec Action to Challenge Plat Approval

In McCarthy et al v. Hillsborough County, etc al, here's the link, the Second DCA issued this unfortunately short opinion that masks a serious issue that needed serious public analysis:

We deny the petition for writ of certiorari without prejudice to the
petitioners seeking declaratory relief in the circuit court.

Here's the hook: the 2d tier cert was a challenge to the circuit court's denial of a cert attack on the Hillsborough County Commission's approval of a plat in a non-quasi judicial proceeding.

The critical sub-issue is this: under City of Boyton Beach v. Park of Commerce, _____, the Florida Supreme Court held that the site plan decision under review was quasi-judicial in nature. The opinion included language stating broadly that all land use decision were quasi-judicial. But a footnote cited to the Snyder case, noting that the same analysis applied. Snyder, of course, involved a rezoning, and there is are statutory requirements that rezoning ordinance be adopted by ordinance (which involves a hearing). The statute involving plats, as well as the Hillsborough County land use regulations, do NOT have such an explicit provision. However, the platting statute (Chapter 177) does require the local governing board to approve a plat, and other provisions of Chapter 125 and 166 provide that the only way for local governments to act are through ordiances or resolutions, and both those statutes and the Sunshine Law require those actions to be taken at public meeetings - but not necessarily after "public hearings."

Also complicating matters is the whole bizaare history of whether and when plat approvals are ministerial; under the statute, they are if the plat meets the objective, ennumerated standards, but most local subdivision ordinance add additional requirements that may include some discretionary criteria.

Here (based on information I have that's not in the opinion), the Hillsborough County Commission approved the plat at a public hearing, but did not allow affected neighbors to introduce evidence against it. Neighbors challenged by cert under Park of Commerce, claiming violations of due process and essential requirements of law. Circuit court denied, stating that the hearing wasn't quasi-judicial in nature, and the appeal followed.

What we don't know is whether the lower court held that the plat approval wasn't quasi-judicial under the structural analysis of Bloomfield v. Mayo, which holds that you look to see whether the delegating statute or ordinance requires notice and a due process type hearing, or under the so-called functional analysis that comes from Snyder, under which the court looks to see whether the local government was applying versus making policy, and implies and requires quasi-judicial procedures if they are.

Clearly, the County did not offer the incidents of a quasi-judicial hearing, and now the courts have held that a dec action, rather than cert, was the proper remedy. The question is how broadly this holding reaches.

4th DCA - Yes, you get a Declaratory Action When A Local Gov't Gives You Nothing Else

In South Riverwalk Investments, LLC v City of Ft. Lauderdale, here's the opinion, we find yet another shining example of a commitment to fair play on the part of a local government. This time, anyway, the developer at least will get a day in court -- though over the strident position of the City that an application simply has no remedy when a local government simply fails to act on a development application.

In this case, the applicant filed a site plan for a new project. The City had (as do some others) an "area wide density" inside a Regional Activity Center. It then appeared that there was no residential density left to allocate (we are not told what uses might be left to the property), so the site plan was neither approved nor denied, but remained "open". All other issues had been addressed except the availability of density. Under the local code a site plan remains open until approved or denied.

And (at least based on later allegation) the City starts a plan amendment process that might allocate more density to the Regional Activity Center.

But then, lo!, the City simply decides that, at this point, the site plan no longer exists! Not denied (which might have triggered standing for an administrative appeal, or if none were available, then a dec action, suit under Bert Harris, takings or some other theory), but simply non-extent.

So the developer files a declaratory action to determine, basically, whether it had the right to "stand in line" until density become available. The City's response: sorry, you have no standing. You can't claim when rights might be available, so you don't have any issue to decide. It even convinced the circuit court to dismiss the action with prejudice.

The 4th reversed, holding that there was a real and present controversy with respect to the question of whether the developer has rights in the site plan to density once (and whether) it becomes available. Even though that availability is a future event, the determination is a present need.

And while the court never reaches it (probably not in the record) we are left to ponder why the City would behave this way. Does it want the density to go to another developer? Does it want to change the rules against some aspect of this site plan? Does it simply want to get more review fees? Are there some other vested rights that the City wants to defeat?

Let's be clear: as wrong as it is, the developer almost certainly would have no due process claim under the 14th amendment that could be enforced through an action under USC s1983 (with attorney's fees at the end) because the court would find that the developer had no "property" in the permit (though the permit is the expression of the government regulation of the land). Whether due process under the Florida constitution would provide some protection, we don't know, because it hasn't really been litigated separately -- but historically Florida courts would give that protection.

But I suspect that the City was taking the view that if a developer doesn't have a property right that would be recognized under federal due process principles, it didn't have an "interest" that could be protected by a declaratory action. Thanks to the 4th DCA for finding otherwise.

Procedural Complexities in Challenging Development Orders

In City of Sanibel v. Maxwell, here's the opinion, the 2d DCA granted a writ of prohibition against a trial court to prevent consideration of a "reopened" lawsuit.

There was a dispute over a grant of a variance. Decision was subject to an (unspecified as to procedure) adminstrative appeal, which failed. The decision was then taken to circuit court in declaratory action. Action was dismissed w/out prejudice to file a petition for writ of certiorari, which apparently wasn't pursued (more on this later). That order (the language of which we are not provided), was not appealed.

Two years later, the plaintiffs try to revive and amend the suit with a second amended complaint and the trial court grants the motion. The writ of prohibition proceeds and is then granted on the grounds that the trial court lacked jurisdiction to consider the motion to amend.

OK, this may be a correct result, but it points out a slew of problems for neighbors challenging development orders - and also similar problems for landowners challenging denials.

First, let's look at the original dismissal. We don't know if it properly characterized the action below as quasi-judicial, and therefore subject only to cert review. We don't know if the action was filed w/in 30 days, or if the dismissal appeared to be a death knell to any challenge. Moreover, we don't know if it was a proper, appealable "final order." There is a "magic words" component to an order granting a motion to dismiss - if it only grants the motion, but doesn't actually dismiss the underlying case, it's not a final order and it's not appealable. This then gets into an entire issue of when/how you'd appeal it, whether you'd need to appeal it, etc.

Then there's the fact that the court dismissed the case without leave to amend. Given the 2d DCA decision in the recent Concerned Citizens case, a petition for cert is conducted under the civil rules. Given another recent decision, these are original actions, not appeals. That means that, if the Plaintiffs had properly invoked the original jurisdiction of the court within 30 days of the action, there is a very good arguement that they should have been given leave to amend the already instituted action to be a proper petition for certiorari and to file an appendix, etc.

And if the action was not dismissed by a final, appealable order (no analysis in this opinion), and if it improperly treated the issue of "reforming" the pleading to be a petition for writ of cert, then the circuit court probably did have jurisdiction and the 2d's action is incorrect. Unfortunately, there's not enough information in the opinion to tell.

We really, really need to get better opinions out of our appellate review process on land use decisions. A good reason for creating a new, independent administrative tribunal to hear all administrative appeals from local DO decisions.

2055 Wood Street, Suite 206, Sarasota, FL 34237      Phone (941) 681-8700

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.