First DCA Puts Another Nail in the Coffin of Due Process- Findings not Required for Denial of Plat

Alachua Land Investors v. City of Gainesville, 15 S.3d 732, 34 Fla. L Weekly D2163 (Fla. 1^st DCA July 17, 2009)

In Alachua Land Investors v. City of Gainesville the 1st DCA held that the City did not violate due process or the essential requirements of the law when it denied a plat without written findings. The Court cited G.B.V. Internat’l and Bd. of County Comm’rs v. Snyder for support. As I have written elsewhere, G.B.V. is improperly cited for this proposition because the language in the decision was purely dicta and the matter was not property before the Court. Similarly, Snyder only dealt with rezoning and did not over-rule other cases holding local quasi-judicial decisions had to have written findings.

The bottom line is that Justice Pariente got it right in her dissent in G.B.V. – as had been consistently determined by the courts previous to Snyder: effective judicial review of a quasi-judicial decision is impossible without written findings. These decisions deny due process to applicants and neighbors alike by allowing local tribunals to make up reasons for denying or approving an application in order to meet the facts in the record.

Code Enforcement and the Fact Not Discussed

In City of Miami v. Cortez, the 3d District overturned a circuit court decision in an appeal of a code enforcement board "mitigation order."

The 3d found that the circuit court failed to comport with the essential requirements of law. It found that any objections to the testimony in the mitigation hearing were not preserved, and that due process had been followed.

Here's how the 3d characterized the background facts:

On October 3, 2003, the City’s Code Enforcement Board ("Board") held a hearing
where property owner Amado Sabina pled guilty to a code violation for
performance of work on a residential property without a final permit. The Board
entered an enforcement order on October 10, 2003. Property owners Sabina and
Eumelia Cortes were afforded 60 days to correct the violation or face a fine of
$250 per day.

The property owners failed to correct the violations
and fines totaling $105,750 were assessed. On June 2, 2005, the Board held a
mitigation hearing to determine whether to reduce the amount of the fines
accrued. All of the witnesses at the hearing were duly sworn. At the conclusion
of that hearing, the Board reduced the fine to $10,000 and entered a mitigation
order.

The property owners appealed the mitigation order to the appellate
division of the circuit court, arguing that the mitigation order should be set
aside because the city inspector had improperly delayed inspection for a period
of six months. However the Board had already accepted this argument in reducing
the fine to $10,000. The appellate division nonetheless reversed both the
enforcement and mitigation orders.

The 3d quashed the decision of the circuit court.

However, it's clear to me that the 3d didn't include the truly relevant facts or address the real due process problem.

I suspect that the owners thought that they had fixed the problem and were shocked that fines were still accruing - this happens ALL THE TIME in these cases. The issue is that these orders end up creating "running fines" and (I think unconstitutionally) put the burden of proof on the owners to demonstrate that the violation no longer exists. Once an order imposing fines is issued, the local governments claim that they are under no further obligation to investigate or to determine whether a violation continues.

When the violation is for work without a permit, the violation generally isn't fixed until a permit is issued, any remedial work is done, and the work is inspected and signed off. This creates a situation where the local government can leave a person in violation by delaying permit decisions or imposing improper conditions, by finding inconsequential problems in the inspection, or by not inspecting. And by not notifying the code enforcement people when the inspection is done.

It's quite possible under the fact here that the property owners in fact got a permit and did anything else they needed to do within the 60 day window, but that the inspections were delayed and then even after the inspection the fines were accruing.

I would argue strongly that if that is the case, then the code enforcement statute is being administered unconstitutionally. I KNOW that this happens every day.

And I'm having to speculate because the opinion in this case is so devoid of the truly relevant facts, but I suspect that this is what the owners showed to the circuit court. So, did the 3d District get it wrong? We really can't tell because the opinion doesn't give use the rel event facts.

LESSON: If a client gets into code enforcement problems, get in the board's face and start objecting to EVERYTHING from the first hearing. Object that the hearings violate due process because the written guidelines are inadequate or lacking; demand rulings on right to cross examine; object to every piece of written evidence that is offered (most of it is hearsay, lots of it is inadmissible). Object to the local ordinance if you can. And demand very specific findings from the Board or Special Magistrate regarding EXACTLY what actions need to be taken to correct the violation. And then appeal the VERY FIRST determination (the "violation" determination).

If it gets to a "penalty" hearing, make the same objections. Then enter evidence on the "four factors" in the section 162.09 regarding the amount of penalty.

The code enforcement system has turned into a maze of abusive traps because the processes are badly written, badly administered, and almost always applied against unrepresented respondents.

Decision -Maker Can't Testify in Matter

In Verizon Bus. Svcs et all ve Dep't of Corrections et al, the First District reiterated a simple proposition that seems to escape courts reviewing local government decisions: it is a fundamental violation of due process for an administrative decision maker to also provide testimony (evidence) in the matter decided.

This case involved a bid dispute in a matter where the Secretary made the bid determination. The challenger (disappointed bidder) took the Secretary's deposition. The ALJ recommended dismissal, and the Secretary (rather than an appointee) issued the final order of dismissal. The aggreived vendor appealed and the First District reversed and remanded for a decision by a neutral appointee, noting that there is no no way that a decision maker can impartially reveiw a decision based on in any part on his or her own testimony (this is the Ridgewood Properties principle). The Court also noted that this was a violation that survived the failure to raise it before the tribunal, because it is fundamental.

How basic. How simple and obvious. How lost on courts reviewing local government decisions, where the commissioners chime in with their own views of a matter or statements of fact regarding the petition - often after the record is closed - in making decisions. This case should be cited when challenging decisions where a commissioner makes prejudicial or other statements on the record that are relied on for the decision later.

4th DCA Mis-Cites GBV to Overrule Irvine and Most Administrative Law

OK, back on my soapbox.

The Fourth DCA committed a frequent but grave error in Wal-Mart v. Town of Davie when it cited the Florida Supreme Court's opinion in G.B.V. Int'l for the proposition that written findings are not required in quasi-judicial decisions involving zoning and land use.

Fact: there is langauge to that effect in G.B.V. ,and in fact a disagreement among the justices, but it is pure dicta. Fact: No party raised or briefed the issue in that case, or in the Florida National Properties opinion that was released the week before G.B.V. What happened is that Justice Pariente - quite rightly, and consistent with ALL prior cases except Snyder -- raised the absence of written findings as so inhibiting to effective judicial review as to deny due process. The other justices didn't agree - but agreed to refer the matter to the Justice Administration Commission, which in turn found no authority to adopt rules on the matter.

Fact: Prior to Snyder, every reported cases in Florida that can be found (and pretty much every federal case on administrative proceedings) held that written findings were a due process requirement because effective judicial review is impossible without them. See the cases cited by Justice Pariente in G.B.V., but more importantly, see Snyder and Irvine v. Duval County .

Fact: The controlling decision under Florida law for all quasi-judicial decision except rezoning remains Irvine, where the Supreme Court reversed the 1st DCA and approved the dissent below and where the 1st DCA on remand adopted the dissent as its opinion. That dissent established not only the "burden shifting test" for special exceptions (and other quasi-judicial decisions) but clearly and unequivocally reiterated longstanding Florida law that required written findings in all quasi-judicial zoning decisions.

Fact: Snyder declined to apply the Irvine written findings rule to rezonings, but never held that the findings requirement did not apply to any other decision. Nor could it, because that broad issue was not raised below -- the argument briefed and at issue in Snyder was only whether the Irvine rule applied to rezonings, NOT whether it was the right statement of the law.

Law: Under standards of appellate review, dicta and unbriefed issues are NOT precedent and NOT binding on later courts. See. e.g., Schmitt v. State, 590 So.2d 404, 414 ( Fla. 1991). As the Florida Supreme Court stated the rule:

We take this opportunity to expressly state that this Court does not
intentionally overrule itself sub silentio. Where a court encounters an express
holding from this Court on a specific issue and a subsequent contrary dicta
statement on the same specific issue, the court is to apply our express holding
in the former decision until such time as this Court recedes from the express
holding. Where this Court's decisions create this type of disharmony within the case law, the district courts may utilize their authority to certify a question of great
public importance to grant this Court jurisdiction to settle the law.

Puryear v. State, 810 So.2d 901, 905-906 (Fla. 2002).

Snyder did NOT expressly overrule its earlier decision in Irvine, or the First District's express ruling. It simply declined to extend it. The dicta in Florida National Properties and G.B.V. did not and could not overrule Irvine or extend Snyder because the issue of written findings was not before the court.

Therfore, the Fourth District's opinion in this case is legally wrong, as are the numerous circuit court decisions that "follow" Snyder and refuse to follow Irvine.

Madness and Mayhem in Ft Lauderdale - Stranahan I

Stranahan House, Inc. et al v. City of Ft. Lauderdale, 32 Fla. L. Weekly D2702a (Fla. 4th DCA November 14, 2007).

This case is a must read for anyone involved in litigating and settling land use cases because it clarifies principles of how to settle without accidentally “contracting away the police power.”
As indicated above, developer bought a developed site and a piece of undeveloped land that was adjacent to Stranahan House – a designated historic resource. The developer filed a site plan under the then-current regulations (1999 version). The City tried to buy the undeveloped land through eminent domain, and the developer counter-claimed for damages and for a declaration that the site plan was consistent with the regulations.

The court granted summary judgment against the condemnation for failure to demonstrate a public necessity and also ultimately determined that the developer could maintain the declaratory action. Eventually there was a settlement. The Settlement was discussed at a non-public hearing and then subject to a public hearing that appears to have allowed public comment

The day after the City Commission approved the Settlement Agreement, the Court approved the Final Consent Judgement. The judgment included findings that the site plan complied with the zoning code and comprehensive plan, that the site plan was compatible with the surrounding area (including Stranahan House). In addition, the Judgement recognized, in accordance with the Settlement (a) that ordinances had changed, (b) that it was in everyone’s interest for the developer to file an amended site plan that provided for a plaza, (c) that the site plan would be reviewed under the 1999 regulations, and (d) that the City would expedite that review, and allow the project to proceed under the original site plan if the amended site plan were not approved.

The developer filed the amended site plan, which was reviewed by the DRC, the Planning and Zoning Board, and the City Commission.

Stranahan House filed a cert petition attacking the approval of the first site plan as illegal contract zoning under Chung v. Sarasota County and because the process did not include a hearing before the City, DRC and Z & P Board. It filed a cert petition attacking the second site plan (and a separate 163.3215 petition – see above) on the basis that the Board did not afford interested parties due process, the site plan was not submitted to the historic preservation board, the City failed to apply the 2005 zoning requirements and the site plan did not comply with those requirements.

The circuit court consolidated the two petitions and denied them. In denying the first petition, finding that the approval of the settlement under these terms did not abrogate the legislative standards of the zoning code, complied with the zoning code, and was made in good faith. Because the settlement required compliance with the zoning code, it did not constitute contract zoning. It also concluded that the approval of the second site plan comported with due process and the decision was supported by competent substantial evidence. Implicitly, the circuit court found that the Settlement Agreement could provide for the application of the earlier zoning regulations without being contract zoning.

The Fourth DCA upheld the circuit court.

Notably, the Fourth District found that the failure to attack the Judgment, but to instead attack the site plan approval through certiorari, was fatal because the Judgment – which essentially approved the first site plan – was not a development order. The Court noted that under applicable precedents, Stranahan House could have moved for post-judgment intervention for that purpose.

Also notably, the Fourth District held that it did not have jurisdiction to review the circuit court’s determination that Stranahan House did not receive due process before the DRC and City because their ability to present extensive testimony was limited. The Court found the circuit court had applied the right law in evaluating this claim, and that it would not second-guess the lower court’s decision.

Finally, the Fourth District found that the circuit court had applied the correct law in considering the 1999 zoning regulations rather than the 2005 regulations, because the Judgment called for them.

What we don’t know is what would have happened if Stranahan House had intervened in the fight between the developer and the City, and had appealed the Judgment. Would the Court have determined that the judgment could not alter the terms of the applicable zoning regulations? Would it have found that the approval of a site plan through that process was improper? We don’t know, though I suspect not.

The Fourth Does a Great Job of Dealing with the Wrong Issue - Vagueness and Criteria

In Friends of the Great Southern Hotel et al v. City of Hollywood, the Fourth District got half the law right (and maybe the right result) but missed the real issue in upholding the validity of parts of the City of Hollywood's Historic Preservation ordinance. I think the result is important to future cases regarding whether criteria are appropriate, but ignored an entire realm of established law that states that the structure of a quasi-judicial standard must limit the discretion of the quasi-judicial board.

Background: It's not entirely obvious from the opinion, but the issue was whether the hotel, which had previously been designated as an historic building, could be partially demolished for redevelopment. The ordinance standards at issue involved the City Commission's consideration for a permit to demolish a such a structure. So the denial of a permit would affect the owner's rights as much as the denial of a site plan, etc.

Disclosure: the attorney for the citizens was a friend of mine, Ralf Brookes, and we had discussed the case in detail as he was preparing the trial and appellate briefs.

Guts: the ordinance language requires the commission to consider a set of factors in determining whether to grant the permit. Unlike many earlier permitting ordinances, it does not set forth a scenario in which a negative finding on one of the factors leads to a requirement of denial, and the absence of negative findings to a requirement to issue. It simply requires the commission to consider them.

The factors here are really good examples of criteria which are not wholly objective (e.g. numerical) but which are clear and ascertainable.

d. Evaluation criteria. The City Commission and the Board shall consider the
following criteria in evaluating applications for a Certificate of Appropriateness for Demolition of buildings, structures, improvements or sites.
(1) The building, structure, improvement, or site is designated on either a national, state, or local level as an historic preservation district or an architectural landmark or site.
(2) The building, structure, improvement, or site is of such design, craftsmanship, or material that it could be reproduced only with great difficulty and/or expense.
(3) The building, structure, improvement, or site is one of the last remaining examples of its kind in the neighborhood, the county, or the region.
(4) The building, structure, improvement, or site contributes significantly to the historic character of a historically designated district.
(5) Retention of the building, structure, improvement, or site promotes the general welfare of the city by providing an opportunity for study of local history, architecture, and design or by developing an understanding of the importance and value of a particular culture and heritage.
(6) There are definite plans for reuse of the property if the proposed demolition is carried out, and those plans will adversely affect on [sic] the historic character of the Historic District.
(7) The Unsafe Structures Board has ordered the demolition of a structure or the feasibility study determines that the retention of the building would deny the owner of all economically viable uses of the property.
(8) The information listed in the Historic Properties Database (a listing of historic and non-historic properties) has been considered as a guideline in determining whether a Certification of Appropriateness for Demolition should be issued.

Looking at the structure of the entire section, it is clear that the intent of the ordinance is that if positive findings are made for criteria 1-6, and the data in 8 have been reviewed, then the permit should be granted only if the criteria in 7 have been satisfied. Any other approach leaves the ordinance arbitrary-- would or could the commission grant a demolition permit because the building contributed significantly to the historic character of a district?

The issue raised by the plaintiffs was that the ordinance as written and implemented granted unfettered discretion to the City Commission to issue a demolition order regardless of the findings that were made because all it had to do was consider the issues. Note that there is a HUGE body of law in Florida disapproving ordinances or statutes for these reasons. A few examples: Cross Keys -- listing general criteria for areas of critical state concern and leaving the executive branch to determine when and how to apply them violated the separation of powers; the Tampa Bay Pilots case, where a statue that allowed a quasi-judicial licensing board to consider other factors granted it unfettered discretion; the entire line of Ocala/ABC cases on liquor licenses, where the rule was established that the requirement of uniform administration means that where standards in a permitting procedure are met, the license must be granted; and the Irvine v. Duval County and Narco Realty lines of cases that apply that concept to zoning matters. Two relatively recent cases from the Florida Supreme Court - -Schiavo and Lewis -- made it clear that language that provides that an administrative actor "may" take action when certain (objective) criteria are met delegates impermissible legislative discretion.

These cases do not ultimately rest simply on whether the criteria are sufficiently precise, but go also to the structure of how the quasi-judicial administrative body applies the criteria. There is another set of cases on that focus on the criteria, and the Fourth District dodges the important issue by doing a really good job of applying these cases, so good that in fact I think the following passage will become the language that gets cited in future cases, and so good that I will risk boring you all by citing in full here:

In order for ordinances which provide decisional authority to be constitutional, they must have mandatory objective criteria to be followed when making a decision. See, e.g., Miami-Dade County v. Omnipoint Holdings, Inc., 811 So. 2d 767, 769 (Fla. 3d DCA 2002), decision quashed on other grounds, 863 So. 2d 195 (Fla. 2003) (holding that provision of Miami-Dade County Code on unusual uses was legally deficient because it lacked objective criteria for the County’s zoning boards to use in their decision-making process); City of Miami v. Save Brickell Ave., Inc., 426 So. 2d 1100, 1104 (Fla. 3d DCA 1983) (“[I]f definite standards are not included in the ordinance, it must be deemed unconstitutional as an invalid delegation of legislative power to an administrative board.”); ABC Liquors, Inc. v. City of Ocala, 366 So. 2d 146, 149 (Fla. 1st DCA 1979) (“Any standards, criteria or requirements which are subject to whimsical or capricious application or unbridled discretion will not meet the test of
constitutionality.”); N. Bay Village v. Blackwell, 88 So. 2d 524, 526 (Fla. 1956) (“An ordinance whereby the city council delegates to itself the arbitrary and unfettered authority to decide where and how a particular structure shall be built or where located without at the same time setting up reasonable standards which would be applicable alike to all property owners similarly conditioned, cannot be permitted to stand as a valid municipal enactment.”).
Objective criteria are necessary so that:
1. persons are able to determine their rights and duties;
2. the decisions recognizing such rights will not be left to arbitrary administrative determination;
3. all applicants will be treated equally; and
4. meaningful judicial review is available.

Miami-Dade County, 811 So. 2d at 769 n.5.

Section 5.6.F.5.d provides eight objective criteria to follow, as evidenced by the
Commission’s fifteen-page summary report detailing their findings as to the eight criteria. The criteria need not be intricately detailed. Windward Marina, L.L.C. v. City of Destin, 743 So. 2d 635, 639 (Fla. 1st DCA 1999) (“Impossible standards are not required.”); Life Concepts, Inc. v. Harden, 562 So. 2d 726, 728 (Fla. 5th DCA 1990) (“While it is true that the ordinance did not contain specific quantitative guidelines . . . , that level of specificity is neither required nor workable.”). All that is required is that the criteria do not permit the decision makers to “act upon whim, caprice or in response to pressures which do not permit ascertainment or correction.” Nostimo, Inc. v. City of Clearwater, 594 So. 2d 779, 781 (Fla. 2d DCA 1992) (quoting Effie, Inc. v. City of Ocala, 438 So. 2d 506, 509 (Fla. 5th DCA 1983)). The specificity of the guidelines will depend on the complexity of the subject and the “degree of difficulty involved in articulating finite standards.” Askew v. Cross Key
Waterways, 372 So. 2d 913, 918 (Fla. 1978).

The Fourth then blows the real issue (IMHO) when it analyses the rest of the problem this way:

Friends specifically argue that the code fails constitutionally where it provides that “The City Commission and the Board shall consider the following criteria.” Friends highlight that the commission only has to “consider” the criteria, that there is no clear direction as to whether one or all of the criteria must be met, and that there is no indication whether or not one or more factors can simply be considered and then disregarded. The Code’s language of “shall consider” is not discretionary.
. . .
Unlike the codes in City of Miami and Effie, section 5.6.F.5.d uses mandatory language and does not allow the commissioners to consider factors outside the criteria provided. The criteria of section 5.6.F.5.d are also objective and sufficiently detailed, elements which are necessary to uphold its constitutionality.

The problem with this ordinance, and this analysis, is that the structure of the delegation itself does not oblige the city commission to treat the objective criteria in a consistent, reviewable fashion. The real issue in this case was not whether the criteria are objective, but whether simply requiring the commission to consider them provided a meaningful limit on the commission's ultimate decision regarding whether the grant the permit. The Fourth District simply ignores the whole Cross Keys, Lewis, Schiavo and City of Ocala cases' focus on the ultimate discretion of the administrative actor to act or not act.

All that said, there is another unspoken issue in the entire case (and which may have subtly affected the outcome) has to do with takings and due process for the property owner. Here, the plaintiffs were trying to throw out the part of the overall regulatory scheme that provided a property owner with the means to get a permit to demolish a previously designated building. Without such a provision, the entire ordinance may well have violated a landowners' due process rights or created a significant taking (or Bert Harris) liability.

How NOT to Attack Inadequate Notice - Why We Really Need a General Review Statute (Again!)

In Marion County v. Kirk, we have a case where the petitioner below screws it up, the trial court gets it right the wrong way, the majority opinion on review completely misses the right result and the dissent gets the right result with incomplete reasoning (albeit not helped by the absence of the petitioner/appellee).

Rule 1: in quasi-judicial matters, if the tribunal does not provide notice (e.g. mailing notice of a hearing) in a manner that comports with the governing statute/ordinance or due process, what is your remedy?

Answer:
1. If you have actual notice and appear that the hearing, you get no relief UNLESS you ask for a continuance and it is unreasonably denied, and then you have to raise this via certiorari as a procedural due process violation UNLESS the statute or ordinance provides another remedy.
2. If you do not get the notice and therefore don't appear, you can file a declaratory action to declare the decision void/ultra vires if it violates a statute/ordinance.
3. If you do not get notice and don't appear, AND the action deprives you of a property right (like it's your property being assessed, or downzoned, or code enforced), you have a right to declaratory relief for violations of due process under the Florida Constitution, as well as to declare the action void. You may have a right to an action under42 U.S.C. 1983, depending on just what they did -- like if they sold your property at a tax sale, or imposed a code enforcement lien, or gassed your dog, or lost your son's body, you have a property right protected by the 14th amendment in the 11th Circuit, but if they merely downzoned you, or denied a development permit, etc., you don't.

So, let's all get together -- if you're claiming lack of notice, you're not limited to cert review of a quasi-judicial decision because the violation not only made the decision invalid (as a violation of due process or jurisdiction), but because the violation also left you unable to protect your rights at the hearing.

Here, we don't know if the petitioner/appellee showed up, but she filed a petition for mandamus (probably to get around the 30 day cert window) claiming that County didn't sent required notices. She demands as relief that the County be ordered to issue notices (again) and hear the action again (ah, but what about the original decision? does renoticing the hearing vacate it? I think not!).

She properly gets an evidentiary hearing, at which the County doesn't quite put on sufficient evidence to actually prove that they sent the notice, and the court finds for her. At which point the County goes "oh, ****" and asks for rehearing, gets it, and brings in affidavits (not witnesses) that the mailing was done. The court rejects the affidavits, enters the writ, and the appeal (without the petitioner participating) proceeds.

The majority ends up holding (a) that because this was quasi-judicial, cert was the remedy and the court was wrong to entertain mandamus; (b) that the court erred in not considering the affidavits, and (c) -- and I really, really, really can't believe this -- that the court erred in not respecting the "presumption of routine practice" under 90.406 of the evidence code, as conclusive that the mailing was done once it was delivered to the group that mails things for the County.

First, as noted above, when you complain about failure to comply with notice requirements, you aren't limited to cert unless you appear. The court's failure to get this means that they just issued an opinion that appears to negate the longstanding rule. I can only assume that the County and developer attorneys sold the court a load of bull when they realized that the petitioner wasn't appearing during the appeal, and probably are giggling about throwing this monkey wrench into the established law.

Moreover, the whole "presumption" rule seems ridiculous as against testimony that the notice wasn't received. I don't think that the court should have/could have relied on affidavits to counter sworn testimony taken under oath and subject to cross examination. If the County blew their case, they should have been asking for rehearing and the right to present the witnesses. And the court should have granted that, and if the affidavit testimony held up, probably should have dismissed the petition - or the dec action if the court had properly reformed the filing.

Which gets us to the dissent. Judge Griffin nails it that the petitioner was not limited to certiorari. She doesn't hit the nail on the head on how the matter should have been reformed -but does end up with the right analysis:

Finally, the question whether this was properly a mandamus proceeding does
not make this decision reversible. The County did have a mandatory, ministerial duty to provide notice to all property owners within 300 feet and to conduct a hearing only after proper notice was given. Since the assertedly improperly noticed hearing had already been conducted, arguably another writ, such as prohibition, would have been more apt. One thing is for sure, however, this did not have to be brought as a certiorari review of the County’s approval of the special use permit. Cf. Bhoola v. City of St. Augustine Beach, 588 So. 2d 666 (Fla. 5th DCA 1991). Consistent with the provisions of Florida Rule of Civil Procedure 1.630 and Florida Rule of Appellate Procedure 9.040(c), the correct denomination of the writ is
not essential. Courts should, and indeed, this court generally does, treat
the application for any extraordinary writ as what it ought to be.

It does appear that a more correct result would have been reached if the
trial judge had exercised his discretion to grant rehearing and had taken further evidence on the County’s procedure for mailing of notice and Ms. Kirk’s actual knowledge of the hearing, but this is a decision allocated to the trial court, not to us.

I am really dreading the day that I see this case cited for the proposition that you can't challenge the failure to provide required notice with an original action, or explaining to a new associate (or just a newer land use lawyer) why the law doesn't restrict you to cert under these facts.

One more piece of evidence for why we really really need a general law governing the review of land use decisions that provides appellate relief (not cert) and the right to issue corrective orders.

The 3d DCA Strikes a "No Trucks" Ordinance in Coral Gables - and the World Didn't End!!!

In Kuvin v. City of Coral Gables, a panel of the 3d DCA (over vigorous dissent by Judge Rothenburg) held that the City's "no truck" parking regulation went too far by prohibiting personal use trucks from parking in other than a fully enclosed garage.

In a true shocker, the majority opinion was written by Senior Judge Schwartz, whose normal view of zoning and land use issues is that any challenge is brought by a degenerate and corrupt landowner or developer. In one of the best passages I've seen in years, says:

But there is a larger issue at stake here. Absent any legitimate basis for
the ordinances, what remains is that the City Parents disapprove of a perhaps unorthodox vehicle and the possibly diverse taste and lifestyle which may be reflected by its ownership. This is just what Judge Hurley was getting at in Proctor by characterizing an anti-truck parking ordinance as unconstitutionally contrary to protected rights of association, privacy and “personhood.” Proctor, 396 So. 2d at 773 (Hurley, J., concurring); see also Moore v. City of E. Cleveland, 431 U.S. 494 (1977)(invalidating municipal zoning limitation on
occupancy of dwelling to defined “family” as unconstitutionally restricting family choice to “nuclear” family).

For a governmental decision to be based on such considerations is more than wrong; it is frightening. Perhaps Coral Gables can require that all its houses be made of ticky-tacky and that they all look just the same, but it cannot mandate that its people are, or do. Our nation and way of life are based on a treasured diversity, but Coral Gables punishes it. Such an action may not be upheld.
(internal citations omitted, but the "ticky-tacky" comment references the Fine decision).

The concurrence focused on the distinction between commercial and non-commercial trucks.

The dissent by Judge Rothenberg took the position that pickup trucks are ugly, local governments can regulate aesthetics, the guy could park the truck in a garage (which his house didn't have), and so the ordinance is ok. Gosh, put that way, they can tell you what kind of toilet paper to use, too.

For those of you who might be sympathetic to Judge Rothenberg's position, let me show you this provision of the zoning code:

Section 4-412. Trucks, trailers, commercial vehicles, and recreational
vehicles--Parking upon streets and public places.
Except as provided for in this Division, no trucks, trailers, commercial vehicles, or recreational vehicles, shall be parked upon the streets or other public places of the City between the hours of 7:00 PM on one day and 7:00 AM of the next day. This prohibition is in addition to the total prohibition covering residential areas as provided in Section 4-411.

That's right kids: drive a pickup truck (including an Explorer Sport, Avalanche, Suburu Brat, and most SUVs), AND YOU CAN'T EVEN PARK YOUR VEHICLE IN A PUBLIC RESTAURANT'S PARKING LOT AFTER 7 PM AT NIGHT. YEP - EVEN IF YOU HAVE A GARAGE FOR YOUR TRUCK, OR LIVE OUTSIDE CORAL GABLES, YOU CAN'T PARK IN THE CITY AFTER DARK. Jeez, maybe we need a judicial decision naming rednecks and construction workers as suspect classes.

A Not So Fine Day in Coral Gables, or The City that Makes Your House Less Safe

In Fine v. City of Coral Gables, Judge Rothenburg (dissenter in the Kuvin case) writes an opinon for the 3d DCA that denies second tier cert where the circuit court had refused to even issue an order to show cause for the Fine's petition for cert review of the city BZA's denial of a variance to permit a metal roof. The 3d DCA found that (despite the fact that cert review is MANDATORY) the Fine's petition did not establish a basis for relief because they could not show or claim "undue hardship." Of course, it's the 3d DCA and they don't recognize that the legislature repealed Florida's version of the standard zoning enabling act in 1985, along with its mandatory "hardship" standard for variances.

Neither rule 9.100(h) nor rule 1.630 requires the reviewing court to issue a show cause order or to order a response to the petition if the petition does not demonstrate a preliminary basis for relief. See Wingate v. State, Dep’t of Highway Safety & Motor Vehicles, 442 So. 2d 1023 (Fla. 5th DCA 1983)(denying second-tier petition for writ of certiorari even though circuit court sitting in its appellate capacity declined to issue an order to show cause based on its determination that the petitioner failed to state a preliminary basis for relief).

In the instant case, the circuit court denied the Fines’ petition for writ of
certiorari without issuing an order to show cause requiring a response by the
City. This clearly was not error, as our review of the petition filed by the
Fines reflects that no response was necessary as the Fines failed to establish
an "unnecessary hardship," an essential element when seeking a variance. See
Miami-Dade County v. Brennan, 802 So. 2d 1154, 1155 (Fla. 3d DCA 2001).
"‘Unnecessary hardship’ has generally been defined as a non-self created
characteristic of the property in question which renders it virtually impossible
to use the land for the purpose or in the manner for which it is zoned." Id. at
1155 n.2 (Fletcher, J., concurring); see also Maturo v. City of Coral Gables,
619 So. 2d 455, 456 (Fla. 3d DCA 1993)(stating that "a legal hardship will be
found to exist only in those cases where the property is virtually unusable or
incapable of yielding a reasonable return when used pursuant to the applicable
zoning regulations"); Herrera v. City of Miami, 600 So. 2d 561, 562 (Fla.
3d DCA 1992)(holding that a variance may be issued only when no reasonable use
can be made of the property without the variance). As the petition did not
establish the requisite hardship, the circuit court did not fail to apply the
correct law by not requiring the respondent to respond before denying the
petition.

On a procedural level, it's terrifying to see Wingate cited in a land use case, because it involved "discretionary" cert review.

Turning from the procedural, yes, in the beautiful but stupid City of Coral Gables, you have to have a barrel tile type roof that's less safe than a metal roof. Why? Because they're authoritarian freaks who would regulate the types of toilet tissue you could put in your house if they ever thought of it. Probably would find that the use of recycled or no-brand tissue would be commercial in nature and have the potential to devalue residential neighborhoods - so you have to use something that costs at least $1.50 per roll.

The Fines should have taken their chances and filed a declaratory action seeking to hold the ordinance standard unreasonable or, perhaps, pre-empted by the provisions of the Florida Building Code. While they may have not suffered an "unnecessary hardship," they certainly have been subject to an arbitrary and unreasonable regulation (well - depending on the panel you pull).

Why Cert Fails: You Have to Let the Agency Violate Your Rights Before Complaining

In Florida Department of Highways v. Tidey, the 4th DCA overturned the circuit court's grant of a writ of prohibition that prevented the Department from using its "hearing officers" to sit on Tidey's case. The circuit court heard the testimony of at least 4 attorneys who practice before the Department regarding pervasive, consistent, and orchestrated violations of due process before the Department's non-lawyer hearing officers.

No matter, says the District Court. Even if they are completely incompetent, prejudiced, and directed by their employer to conduct hearings in a manner that violate the rights of those before them, your only remedy is to go to the hearing before the unfair and incompetent hearing officer, wait for them to violate your rights, and try to raise your issues on a case and fact specific basis for later certiorari review. Don't forget to raise specific objections on the record, and don't forget to keep asking for continuances, even if the Department fails to produce suppoena'd records or the police officer fails to show up. In other words, every procedural trap will be laid before you and you must litigate your case perfectly in order to maintain any abilty to receive judicial review, while the Department can screw around with your case at will.

What it comes down to is that drivers in Florida face about the same due process challenges as accused terrorists held in Guantanamo Bay. Well, maybe more, 'cause our courts of appeal are on the state's side.

What's the link to land use? Well do you think the average city/county commissioner cares any more about due process than these DMV hearing officers? Do you think that the due process violations that occur on a daily basis are any less pervasive and invidious?

Due Process: NOT - or Yet Another Example of Breakdown In Cert Review

In Pharmcore v. City of Hallendale Beach, here's the opinion, we're forceably reminded that the lack of clear standards for due process in quasi-judicial hearings, the lack of experience of circuit courts in appellate matters, and the limited scope of 2d tier review basically mean that parties before local quasi-judicial boards can be screwed at will by the local government with no effective or meaningful judicial review.

Here, the City reneged on a settlement agreement (for reasons that may be legally valid, but are operationally just sleazy) and denied a permit. When the applicant appealed to the City Commission, the City staff brought up new reasons not stated in the denial, over the objections of the applicant with respect to notice.

The circuit court decided that the city was legally entitled to reneg and denied the petition. The circuit court noted the correct Vaillant princicples for review, but then "Without elaboration, the decision stated that the court had reviewed the record and found that petitioners were afforded due process. "

Good enough to deny review of the issue on 2d tier before the 4th - the court found that the narrow basis of 2d tier review precluded it from actually asking whether the city commission had denied the petitioners due process in the notice issue because "the circuit court applied the correct law" even if it applied it incorrectly.

Legally correct perhaps under certiorari principles, but wrong as a matter of constitutional rights, effective judicial review, and a proper constraint on abusive local governments.

Bert Harris Case - Determination of Inordinate Burden Requires Findings

In Brevard County v. Stack, here's the opinion, the 5th upheld the Bert Harris Act against some really silly constitutional claims, but remanded a trial court's inordinate burden decision for a written finding.

The case involved new wetlands regulations that did not allow mitigation. A commercial property had an area of wetlands in the middle, and the no mitigation and buffer rules prevented an otherwise viable development plan from going forward. This resulted in the loss of a viable contract for the property.

The appraisal filed with the required notice indicated a loss in value of the property of $1M, from 1.7M to $700,000 due to the inability to construct the development plan.

Here's where it gets interesting. The County came back with a ripeness decision that included a site plan prepared by the County that would have allowed the owners to develop, but with a bunch of limits, including a reduction in parking from 170 to 100 spaces.

The appraiser found that the County's plan did not cure the problems created by
the Ordinance, and that the diminution of value remained the same, because
the plan required that the Property be bisected, it did not provide for
sufficient parking, and it made no provision for a traffic signal. All of
these factors made the Property less attractive to a developer.

Now it appears that the County did not contest this opinion, because the matter was tried to partial summary judgment on the issue of inordinate burden, and the trial court found for the Plaintiffs.

On appeal, the County attacked the constitutionality of the Act on numerous grounds, mostly specious and sometimes frightening.

First, they claimed that it violated the County's substantive due process rights by forcing them to contract away their police powers, first in requiring (functionally) a "ripeness" action or an offer of settlement under threat of suit, and then by "requiring" the entity to "buy back" rights.

First, a "contracting away" claim is NOT based on due process; it's based on organic limits to the power of the government and the notion of the separation of powers. Moreover, while it might be possible to have a Bert Harris settlement that is void for this reason (believe me, I know, I just drafted a settlement around this issue) due to the doctrines laid out in Sarasota County v Chung and Morgan Co. v. Orange County, the fact that a government entity can settle (under threat of litigation) does not create a contracting problem.

The 5th clearly stated that local governments don't have "due process" rights against the Legislature, but more on the arrogant and frightening nature of the claim later.

Furthermore, as the 5th recognized, the fact that the Legislature created a new cause of action that both recognized the right of the government to exercise the police power but then creates a legislative notion of an action that "goes too far" and requires compensation for that regulation, does not "force" the government to "contract" with private parties in exercising their police powers.

Likewise, the fact that if a landowner is granted compensation for lost rights, the Act recognizes that these rights are permanently transferred to the government entity (as in a property interest/covenant/easement/sale of development rights) doesn't create a contracting problem - it simply again recognizes that the Legislature has created a cause of action and that someone using that cause forfeits other rights. So the 5th also properly rejected the notion that the Act creates a "contracting away" problem through its provision for the transfer of the rights to the government if damages were paid.

NOTE - the big right involved here would be the right to use the property for the "burdened" use should the regulatory regime change. While Bert Harris claims aren't available for "temporary" burdens, this means a regulation or effect that's temporally limited on its face. The imposition of a zoning category, or a wetlands rule, can be presumed permanent because the entity isn't obliged to change it.

The County also tried to argue that the Act improperly delegates legislative authority to the courts, based first on "vagueness" and then on the really bizarre notion that it somehow illegally and improperly enlarged judicial interpretations of takings law.

The 5th rejected the vagueness claim based on the Act's provision of a number of definitions. And while I think this claim reaches pretty far, I do have to admit that the Act is less than clear, and requires a lot of interpretation to determine whether an impacted "right" to use property is an "existing use" as that's defined in the Act.

It also rejected the "legislative imposition on the judiciary" for the clear and obvious reason that the Act explicitly states that it is creating a new cause of action, and that the cause of action is supposed to be more liberal than constitutional takings doctrine.

Note what the County is really trying to do with these combined constitutional claims: establish a doctrine that the Legislature can't create a statutorily imposed financial constraint on a local government's use of police powers that otherwise pass due process and takings tests based on some new kind of claim of constitutional stature for their "right" to exercise police powers. Their underlying but unstated position seems to be that if local governments have home rule police powers, the legislature can take away local power to legislate in areas, or can tell the local government procedurally what must be done in order to exercise those police powers, but can't make them liable for the substantive results of the use of those powers. It's nothing less than an attempt to establish an entirely new, judicially created doctrine that local governments have "constitutional" rights against legislative limits on their powers.

The fact that the county would argue this kind of claim reflects the frightening arrogance that local governments have internalized -- they believe that they have the constitutional right to screw around with anyone they want, limited only by the (emasculated and now meaningless) constitutional constraints of due process and inverse condemnation, and that the Legislature is (or should be) powerless to constrain their authority.

Let's be clear: even with home rule provided by the constitution, local governments are NOT co-equal branches of government. They are political subdivisions (counties) and municipal corporations, whose authority and right to exist are subject to legislative control.

After all of that, the 5th did throw the judgment back to the trial court for findings, based on language in the Act that provides that the court "shall" "determine whether a vested right or an existing use of the real property existed, and if so, whether . . . ." the property was inordinately burdened. The 5th interprets this as requiring an explicit finding, presumably in writing.

PRACTICE NOTE: if you're a Plaintiff in one of these cases, be sure to note this in your memorandum of law, and be sure to provide a draft order that guides the court in getting this right.

Due Process in Driver's License Proceedings - NOT

The 3d DCA overturned the quashal of a DMV driver's license suspension in Fla DMV v. Jones, here's the link. The Department (in a hearing before a non-lawyer, department employee) apparently suspended the license based only on the officer's arrest report. The issue was probably cause for the stop, and the appeal was over whether the lower court had reviewed the statements in the report using a "subjective" versus "objective" test.

But the real issue is that people's licenses are being suspended based only on documentary evidence without the right to confront. The idea that these arrest reports are self-documenting and can be introduced without the sworn testimony of the officer (absent one of the various exceptions to hearsay, etc.) flies in the face of any kind of democratic justice.

Think about it: an administrative agency suspends your license based on a document, then gives you a "hearing" in front of one of its employees - who has no training in the law -- and then rests its case on the document, with no meaningful opportunity to challenge the contents of the document. In other words, in any meaningful way, the arresting officer IS the sheriff, judge, jury and executioner (since the officer siezes the license), because there is no meaningful way to challenge the officer's action.

Good bye justice and freedom. Hello Gulag.

Important Notice Case from US Supreme Court

In Jones v. Flowers, et. al, here's the link, the US Supreme Court held that notice concepts of due process were violated by the tax sale of a property when the certified mail notice came back unclaimed and the the taxing authority did nothing to determine the actual location of the property owner or to post the property.

This one's long, but should be read. It has poetential application to code enforcement and other zoning enforcement proceedings that could result in burdens (like liens) on property that amount to a deprivation. It might also apply to downzonings - particularly if they would result in a property becoming non-conforming (the loss of the existing right to an existing use rather than simply a potential future right of use).