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.