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: mediation

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.

madness in Fort Lauderdale – Collateral Estoppel, Consistency and other Suits - Stranahan II (but the first decided)

Stranahan House, Inc., et al v. City of Ft. Lauderdale, 32 Fla. L. Weekly D2591a (Fla. 4th DCA October 31, 2007).

Warning: you may want to read Stranahan I, which perversely was released 2 weeks later, before trying to make sense of this.

In this case, the Court allows a group representing a neighboring property to go forward with a “consistency challenge” under § 163.3215 to the approval of an amended site plan approved by the City of Ft. Lauderdale. The critical issue in this challenge involves policies regarding historic preservation. The building involved was to be built on lands adjacent to the historic Stranahan House that had been the subject of a failed attempt by the City to purchase for “park purposes” (read—stop development) with Stranahan’s supporters committing funds.
As will be seen below, the effort to buy the land not only failed, but resulted in other litigation and settlements between the developer and the City. When, pursuant to the settlement, the City approved the site plan, the citizens/Stranahan House sued on several fronts, including the consistency challenge.

The City argued, and the circuit court agreed, that the core issues of consistency had been argued previously in the earlier, settled suit. The Fourth District rejected this, in part because the pleadings in the earlier case were not part of the record. [BIG HINT – it appears the same judge heard multiple suits, and the parties argued the merits of the earlier suit to the judge without putting them into the record by notice – if you have to argue collateral estoppel or other similar issues, put the other pleadings into the record]

The circuit court also found that Stranahan House was precluded from litigating this issue against the City because the agreement it had with the City in the attempt to buy/condemn the land, authorized the City to act for it. The City argued that the settlement was an outgrowth of that action and that, just as the City was bound, the plaintiffs were bound by the City’s action. The Fourth District rejected this theory of agency under the terms of the agreement, found that the plaintiffs had standing under the statute, and let it proceed.

HOWEVER – given that the plaintiffs had unsuccessfully argued earlier that any use of the property violated the historic preservation policies of the plan (and that the site was outside the historic district protected by the policies), it seems unlikely that they will prevail when the plan goes back to the judge. Their real efforts were to kill the site plan as illegal, which was rejected in the second case.

Mediation under 70.51 Stays Time to File Cert

In Peninsular Properties v. City of Bradenton, the 2d DCA reversed the circuit court and held that a request for mediation under s. 70.51 (Bert Harris, part II) stays the 30 day window for filing for cert review. The circuit court had dismissed Peninsular's petition, holding that the statutory tolling provision was an unconstitutional invasion of the Florida Supreme Court's jurisdiction over procedural matters. The District Court reversed, holding (sensibly) that the statute provided a "mixed" substantive and procedural remedy, and that the purpose of the statute required that the time to file be tolled.

Right outcome, probably to the chagrin of the many, many local government attorneys who dislike (and try to undermine) the mediation provisions of the statute. I have been in the position of filing a 70.51 early, then filing a cert petition (or 163.3215), and then requesting that the cert review be tolled. I've had that request denied, which now would probably constitute an abuse of discretion.

The argument here focused on the procedural/substantive debate in treating the statute as "tolling" the time to file; Peninsular apparently did not argue the potentially easier argument: that the statute effectively tolls the rendition of the quasi-judicial order of the local government during the pendency of the meditation. Understood that way, the statute effects the actions of a state or local government agency or board and therefore doesn't even implicate the constitutional issues. Several decisions (not on this statute) interpret tolling provisions that way. This would have another salutary effect that is completely consistent with the intent of the statue: because the decision would be non-final, the local government would be in the position of "reconsidering" it in light of the special magistrate's report, rather than having to undo it or rework some other way.

I understand that Bert Harris is likely to be opened up again next year - maybe this is a fix that everyone could agree on as a way to limit the cost and expense of litigating over these matters and provide a second chance for a local government to hear a contested issue after the real issues leading to a denial are more thoroughly explored.

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