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. 

Filtering by Tag: land development regulations

5th Upholds Special Use - But It's Very Confusing

In Keene v. Zoning Bd. of Adjustment the 5th District upheld a determination by the circuit court that a semi-annual riding event with dozens of riders was permitted in the Rural Residential area.

Interesting issue one: no one mentions the deference to agency construction rule, or if it applies - more interesting because of issue number two.

Interesting issue two: this is framed as an appeal from a declaratory action in front of the circuit court, which could only be a 163.3215 challenge, because any other challenge would be a cert petition. However, the majority opinion does not frame the question as whether the action was consistent with the comprehensive plan, but whether the use was consistent with uses permitted as special uses under the Land Development Code. Something's wrong, and I suspect that the dissent has the right analysis - which focuses on the comprehensive plan uses.

So we have a case where it appears from the appellate decision that the causes of action, the standards of review, and the standard being reviewed against (the LDC vs the plan) are a total mishmash. Why? Broken record time: the absence of a statute that would provide a consistent form and method of judicial review of local government decisions, one that also states that the review is appellate, what the standard of appellate review is, what the appellate remedies are, and what the standards for decisions are.

4th DCA - 4 Limitation on Inverse Condemnation for Illegal Exaction and Stealing Doesn't Offend Public Policy

In a probably correct opinion that is marred by very bad discussions of public policy, the 4th DCA held in New Testament Baptist Church v. FDOT that the lower court properly dismissed a counter-claim/cross-claim for inverse condemnation brought 13 years after an allegedly illegal dedication demand.

The claim was brought by a church that had been required to dedicated 7.5 acres (of its 19) in 1992 for streets (that the city didn't build) in order to get a plat approval. When the DOT went to condemn more of its property in 2005, the church cross complained that the earlier dedication was illegal.

The 4th cites a bunch of other cases finding that inverse condemnation cases need to be brought within 4 years. The cited cases, however, involved direct regulation, not exactions. The court distinguishes several exaction cases where the claim was made much later than the regulatory requirement.

The disturbing issue is the court's treatment of the question of whether an unconstitutional exaction is void or voidable. The court noted that contracts or other actions that are in violation of public policy are void. The court then holds that even an illegal dedication requirement doesn't implicate public policy because only the victim of the illegal act is harmed. The court goes on to justify this position by claiming that the church "benefitted" from the plat. This totally flies in the face of the "unconstitutional condition" cases that Nolan and Dolan spring from, which recognize that where the government imposes an illegal and unconstitutional condition on a government action on a permit or benefit, the victim does not need to refuse to accept the benefit in order to complain.

The Court forgets the basic tenet: the issuance of a development order is not a "benefit" to the landowner because the landowner has an underlying property right to develop. The development order is the governments' OBLIGATION arising from its choice to regulate a property right in the public interest; a landowner's development pursuant to a plat is not the "acceptance of a benefit" from the government because the landowner has the underlying right in the first place.

Just What Can You Do After Quashal?

In Hernandez-Canton et al v. Miami City Commission et al, the 3d DCA held that the city commission and circuit court erred in interpreting an earlier decision it had issued in the same matter.

The dispute goes to whether an application was vested against changes in the zoning regulations. The vesting provision in the amending resolution sets a particular date for having a complete application submitted. In the first case, here's the link to the original Morningside opinion, the 3d District found that the application was subject to the new regulations because the approval resolution on its face established that the "completeness" date was after the vesting date. Here's the most relevant part of the opinion:
The City’s zoning resolution states, in the second "whereas" clause, that "on
February 10, 2004, . . . [the developer] submitted a complete Application for
the previously reviewed Major Use Special Permit application . . . ." (Emphasis
added). By the terms of the resolution, the City treated the application as
being complete on February 10, 2004. This was after the effective date of the
new ordinance.
Section 1305.2.1 of the zoning code provides in substance for
grandfathering of "any complete application for development filed prior to
January 1, 2004 . . . ." (Emphasis added). As stated in the zoning resolution,
the application in this case was not complete until February 10, 2004. That
being so, the January 2004 amendments are applicable to this application.

On remand, the City Attorney apparently took the position that the resolution approving the development was not actually quashed and could be fixed by entering new findings. The City Commission apparently reapproved the resolution. Here's how the 3d DCA describes it:

The City Attorney took the view that our court had left the 2004 zoning
resolution intact, and had simply remanded so that the City Commission could
make findings in support of its 2004 resolution. The objectors argued that the
earlier zoning resolution could not stand in view of this court’s determination
that the 2004 resolution was based on the wrong law, i.e., the wrong version of
Section 1305.
The City Commission accepted the proposition that its 2004 zoning resolution had not been overturned. The City Commission enacted a new zoning resolution which made the findings contemplated by the new version of Section 1305. The objectors sought certiorari review in the appellate division of the circuit court, which was denied.
The objectors then sought second-tier certiorari review in this court. The petition for certiorari is well taken.
OK, so what this does NOT tell us is whether the findings that the City Commission entered were new findings that the application was in fact complete prior to the "drop dead date." We also don't know whether new findings were challenged as being supported or supportable by competent substantial evidence, or simply that the City Commission didn't have the legal right to alter its earlier finding on remand.

The 3d goes on to make this out to be a big misunderstanding of its earlier opinion and to provide very precise instructions on the scope of its decision:
We must respectfully say that our prior opinion was misinterpreted in the
proceedings on remand. In order for the developer’s application to be approved,
it was necessary for the developer to demonstrate compliance with the new
version of Section 1305. Since the City Commission in 2004 applied the old
version of Section 1305, it follows that the 2004 zoning resolution was
defective and had to be set aside. It was necessary for the City Commission to
conduct a new hearing and make a determination whether the developer’s proposed
project does, or does not, comply with the new version of Section 1305.
We therefore grant certiorari and quash the decision of the circuit court appellate
division. We vacate the 2006 and 2004 zoning resolutions. We remand this matter
to the circuit court appellate division, with directions to remand the matter to
the City Commission for a new hearing and determination by the City Commission
whether the proposed project does, or does not, comply with Section 1305 as
amended in 2004. At the new hearing, the developer has the burden of
demonstrating compliance with the new version of Section 1305.

OK, it's obvious that if the project could meet the amended versions there would be no dispute here. BTW, it's also very unclear whether the court's instructions violate the Florida Supreme Court's determination in G.B.V. regarding what "quashal" and "remand" mean, and the limits on judicial authority in cert cases.

What's interesting is that the Court, without ever saying so, is holding that the City was not free to make new findings regarding the "completeness date" and whether the application therefore could be processed under the earlier regulations.

I find this case very troublesome all around. On one hand, it is hard to avoid the conclusion that the developer and the City were playing hard and fast with the rules, in both hearings. On the other hand, the facts we have are those in the 3d DCA opinions, and (sorry to say) the Court clearly has a bias on how it makes these cases come out.

Moreover, the Court does not help us at all understand what it thinks are the rules on remands. It is saying that, as a matter of law, on remand the City Commission can treat the application as still open, open a new evidentiary hearing, and approve the application if the developer proves that it meets the later ordinance. On the other hand, the Court is foreclosing - without discussion- the question of whether evidence could show that the project is vested.

What's going on? does the Court think that the issue of whether the application was vested is a factual "law of the case" matter that was completely disposed of in the first opinion? If so, why doesn't the Court say so? Is the Court saying that, where a local government makes a finding of fact (even in a whereas clause, rather than in some kind of formal finding), it cannot, on remand, accept evidence on that point and make a different finding ? Does the Court believe that to be the meaning of the "law of the case'? If so, is there an exception where cert was granted because the original finding wasn't supported by CSE? Those kinds of holdings would actually be useful to practitioners because these areas of cert law are still very uncertain. Some kind of legal reasoning would at least give us some reference point as to why the Court is adamant that the case can be opened but only to enter findings as to the later regulations.

The failure of the Court to establish the legal basis for its conclusion that its earlier decision was misunderstood and misapplied leads to two alternative conclusions: First, the Court thinks that the situation was sleazy and is trying to kill the development because it thinks that the City made or will make unjustifiable findings in order to vest project, all for some improper purpose. Second, the Court has no clear idea of the legal principles it is invoking or creating and is simply muddying the waters in total confusion. Well, maybe both could be true.

Getting clear legal bases for opinions is not a "pro development" or "anti-development" issue. Everyone in the process should be able to understand what the rules are and how they will be applied, at all stages from staff reviews to hearings to judicial review.

How Do You Challenge Unpermitted Activity?

In Johnson et al v. Gulf County, the 1st District overturned a circuit court's dismissal with prejudice of a neighbor suit claiming improper activities in wetlands.

In one count, the neighbors had claimed under section 163.3215 that the activities violated various provisions of the comprehensive plan. The problem (like in Das v Osceola County) was that the county never issued a development permit for the activities because the county apparently either views the areas as "not wetlands" or views the activities as not needing permits, even if they are wetlands.

Question 1: is altering wetlands "development" ? Probably, if it is in anticipation of any construction activity - look at 380.04.

Question 2: if a local government fails to issue a "development order" to control an activity that constitutes "development," what is the remedy? Under Das v. Osceola County, the right under the statute to get temporary relief or relief to "prevent action" on a development order led the court to conclude that there was an obligation to issue some kind of public document that constituted an authorization to develop so that it could be challenged. In that case (which involved a pipeline), the County then issued a letter authorizing the activity (which the complaining neighbors then did not timely challenge b/c they thought they had the right to something more - oops, they didn't).

Here, it would seem that at the least the neighbors could write the county demanding that some authorization to proceed be granted, so that the same could be challenged.

Alternatively, the 1st DCA seemed to be leaving the door open to the Johnson's to try to re-pled nuisance. Here's an interesting question: is there a cause of action for "per se" nuisance where an activity (a) constitutes development; (b) does not have or does not require a "development order" under local land development regulations. and (c) is claimed to be inconsistent with the plan? There is a very good argument that there is a such a claim, so long as the plaintiff can establish common-law standing to bring the claim. The "exclusive" jurisdiction provision of 163.3215 applies only to claims that development orders are inconsistent with the plan, and it is clear from various provisions, including 163.3194, that developing inconsistent with the plan is unlawful.

It will be very interesting to see how this one proceeds on remand.

The Florida Supremes Resolve an Important but Stupid Issue

In Neumont v. State of Florida, Monroe County, the Florida Supreme Court resolved the unbelievable question of whether a local government body can amend a zoning text amendment that affects 10 or more acres at either the first or second public hearing as opposed to sending it all the way back through publication, notice and new hearings.

The contention is frankly moronic, but gets made all the time by "antis" who demand compromises and then claim that an ordinance that gets amended to address their issues (or, maybe, developer issues) is illegal.

The court held that changes to the terms or regulations in a proposed ordinance, even if they would affect the title (like they pull a section out) don't require re-notice unless the scope of the ordinance changes fundamentally. Like an ordinance that is published as addressing development standards for one zone district suddenly being amended to add new provisions to another district.

BUT what's scary is their language analysis of the provisions for non-zoning ordinances and for ordinances that affect 10 or fewer acres.

For "regular" ordinance, the court implies language in the statute that requires that the notice include reference to where the text of the ordinance may be viewed as meaning that the ordinance text must be adopted as proposed or noticed. I had never heard that an ordinance could not be amended after being noticed and before being adopted - this seems unnecessarily restrictive.

For zoning ordinances affecting 10 or fewer acres, the notice must include the substance of the ordinance as it affects the noticed owners/neighbors. The court interprets this to mean that

This subsection requires compliance with the notice requirements of subsection
(2), described above, and requires that counties mail to each property owner
affected by the proposed ordinance a summary of the proposed ordinance
explaining how the proposed ordinance will affect them.

. . .


Unlike the regular enactment procedure described in subsection (2), however, subsection (4)(b) does not require that drafts of proposed land use ordinances be made available for public review. Also unlike subsection (4)(a), subsection (4)(b) does not require that counties provide notice of the substance of the proposed ordinance or its effect on property owners, and does not require counties to comply with the provisions of subsection (2).


The implication could be that rezoning ordinances for fewer than 10 acres (governed by 4(b)) -- which also would include most rezonings that accompany a small scale plan amendment -- can't be amended without re-noticing. The requirement that drafts be made available for review, and that the affects of a change be stated, should not create a result where the commission cannot respond to the input that is generated by the publication. Just as with the "larger" zoning changes, such a result would be unreasonable and inconsistent with the purpose of the statue -- it implies that if the commission hears issues from neighbors, it can't impose an additional condition without republishing notice and holding a new hearing. Such a result is inconsistent with the purpose of the notice provisions and will only result in them being removed, with neighbors getting less rather than more protection.

The core decision was right - let's hope that the court hasn't created too much collateral damage.

LDR that Deviates or Departs from Comprehensive Plan is not Consistent

In Gateway et al v. Town of Medley, et al, the 3d District overruled a summary DOAH decision holding that an ordinance of the Town was consistent with the comprehensive plan. The court's only characterization was that "Ordinance C-306 permits expansion of a non-conforming use, which the Comprehensive Plan destined to be phased out. " The Court went on to find that

This violates the Florida Growth Management Act’s dictates that local plans be
"implemented through the adoption of land development regulations that are
consistent with the plan." Bd. of County Comm’rs of Brevard County v. Snyder,
627 So. 2d 469, 473 (Fla. 1993)(emphasis added); §163.3202, Fla. Stat. (2006).
Here, as the Ordinance unequivocally "deviates or departs" from the parameters
of the Plan, Machado v. Musgrove, 519 So. 2d 629, 634 (Fla. 3d DCA 1987), we
cannot hold that it is consistent.

The court does not bless us with the particulars of the plan policy involved, nor the actual provisions of the ordinance.

What remains to be seen is whether the courts would apply this analysis to a land development regulation that was more restrictive than the plan permitted.

Initiative is Not Available to Adopt/Amend LDRs! and Charter County Plans Can Supercede City's

In Seminole County v. City of Winter Springs, here's the opinion, the 5th DCA held that a county charter provision that over-rode the City's attempts to plan in annexed areas did not violate the "single subject" rule.

Here's what's interesting: the argument that won below was that the provision in the charter that held that the boundary could be adjusted only by an ordinance adopted by the commission "over rode" the charter's initiative provision -- which allows adoption of ordinances by the electorate. This "extra effect" was held by the trial court to violate the single subject.

Here's what's important: the Court held that Chapter 163's provisions for the adoption of land development regulations by the "local governing board" and definition of "local governing board" as the county commission means that the use of initiative to amend or adopt land development regulations is inconsistent with state law, and therefore prohibited!!!!!

So - a TON of local governments (especially coastal cities) have adopted restrictive charter amendments that required referenda for plan amendments or rezonings that increase density or intensity. Under the 5th's rationale, these are now illegal and unenforceable.

A blow for better planning and land use regulation and a swat at knee-jerk psuedo-democracy.

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