Land Use and Local Government Law and Litigation

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Filtering by Tag: notice

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.

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?

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.

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).

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