Filtering by Tag: zoning
5th DCA Mangles the "As Applied" Requirement of the Bert J. Harris Act and Confuses Reasonably Foreseeable, Reasonable Investment Backed Expectations
In 2002 the Citrus County Commission approved a rezoning and development plan, which neighbors then challenged as inconsistent with the comprehensive plan. A plan designation adopted in 1997 limited development density around lakes to 1 unit per 20 acres, but (and the 5th DCA ignores this critical component of the trial court's analysis) also had a provision allowing the County Commission to approve higher densities and uses consistent with the existing zoning/land use designation. This property had a "generic" zone district and an existing RV/camp park. Based on this combination of existing uses and density, the planning staff and eventually the county commissioners thought the property was vested for density and qualified for the exception in the comprehensive plan.
The rezoning was challenged under § 163.3215 as contrary to the low density land use designation, and the circuit court in that case sided with the neighbors, holding that the plan didn't allow the rezoning or use. Based on this new 2002 court interpretation of the effect of the 1997 comprehensive plan amendment, the developer sued under the Bert Harris Act and won at the trial court level. However, the 5th DCA, not liking the outcome, went searching for reasons to overturn the circuit court decision. In the process, the 5th DCA avoided key facts and misinterpreted the Act.
Under the Act, a landowner may seek compensation when a specific action of a governmental entity inordinately burdens either a vested right or an “existing use” of property. One of the definitions of an "existing use" is a "reasonably foreseeable, non-speculative land use that is suitable for the real property, compatible with adjacent land uses, and that has raised the fair market value of the property . . . " (a "reasonably foreseeable use"). One of the definitions of an inordinate burden is that a property owner is permanently unable to realize "reasonable investment backed expectations" in the vested right or existing use.
Here, the 5th DCA determined that the suit was filed too late under the Act, which requires the property owner to provide a notice of claim to the government entity involved within 1 year of the application of a new statute, regulation or ordinance that inordinately burdens real property. A "specific action of a government entity" is a defined term that specifically includes action on a permit or application, i.e., the application of a statute, regulation or ordinance to the particular property at issue. Within the Act there are various internal references to the application - rather than adoption - of statutes, regulations or ordinances, which clearly establish that a property owner must make some kind of application and have it acted upon or suffer some form of enforcement action, before filing a claim. This was also the interpretation of all of the commentators who wrote about the Act. So, if the prior property owner had made a claim in 1998 against the adoption of the plan amendment, the County's correct defense would have been that it was premature until an actual application had been made and denied, giving the County a chance to determine whether other provisions of the plan allowed relief from the objective density limits in the designation.
The 5th DCA paid no attention to all of this evidence that specific action on an application or permit was the trigger for a government action that creates liability, and determined that the mere adoption of some ordinances - or plan policies - can be the “specific action of a government entity” that triggers the 1 year requirement. The 5th DCA opined that where a comprehensive plan or other regulation includes a clear and objective standard (like height or density), the mere adoption of the ordinance "applies" that ordinance to property and triggers the one year challenge period. The 5th DCA found that the plan designation had that kind of objective limit - completely ignoring the plan provision that authorized the
The 5th DCA then used its interpretation of the plan provision to hold that the use permitted by the overturned rezoning could not have been a "reasonably foreseeable, non-speculative land use." Even though the planning department thought the rezoning and use/density were permitted under the plan (and existing zoning), even though the County Commission thought it was consistent with the plan, and even though it took a "consistency challenge" by neighbors to determine that the development was not consistent with the comprehensive plan, the 5th DCA determined that the developer had no right or ability to rely on the interpretations of those professionals before proceeding, and that a development that is (later determined to be) inconsistent with the plan cannot be "reasonably foreseeable."
The 5th DCA also applied this distorted view of the facts to the Circuit Court's determination that the property had been inordinately burdened, holding that the owner could not have had "reasonable investment backed expectations" because he closed on the property after the adoption of the plan amendment that (the Court reasoned) prohibited the development. This interpretation ignores U.S. Supreme Court and
The Court found that the developer could not have relied on the County staff representations of the comprehensive plan because they were (later found to be) legally incorrect, and that this precluded the landowner from having either an "existing use" (in the form of a reasonably foreseeable use) or an "inordinate burden" (because there was no reasonable expectation). This is a misinterpretation of the Act. While under Florida law "vested rights" against the application of a regulation are not created by a legally incorrect statement by a government official ("yeah, I think you can fill that wetland"), the District Court mistakenly ties this doctrine to whether a landowner has a "reasonably foreseeable use" or "reasonable investment backed expectations."
The 5th DCA’s holdings fly in the face of the legislative intent that the Act provide a remedy for property owners harmed by the application of statutes, regulations and ordinances adopted after 1995. However, if, as occurred here, the adoption of a new, post-1995 law precludes a landowner from having a "reasonable investment backed expectation" then the only people with a cause of action are those who had already had established vested rights at the time the new law was adopted. The District Court's analysis incorrectly makes "reasonable investment backed expectations" and "reasonably foreseeable uses" under the Act dependant on the landowner's ability to establish the existence of a vested right. This is demonstrably wrong: the first part of the cause of action separately protects BOTH vested rights and "existing uses," but the 5th DCA’s formulation requires a property owner to have a "vested right" in order to have both a right that would be inordinately burdened and a reasonably foreseeable use. The District Court's combination of incomplete treatment of the relevant plan provisions and errors in analysis have the effect of writing protection for "reasonably foreseeable uses" out of the Act, a result that is inconsistent with both the intent and the language of the Act.
M&H Profit, Inc. v. City of
In M&H Profit, Inc. v. City of Panama City, the 1st DCA upheld a circuit court decision to dismiss a Bert Harris claim because the City had not applied a new law to the property simply by enacting a change to the zoning code.
Under the facts (at least as stated), the property owner would have a bad time under the Act. The owner bought commercially (C-1) zoned property in the City that, at the time, was not subject to any height restrictions. The owner apparently intended to build a 20 story condominium. The most critical fact in the opinion (if true) is that the comprehensive plan apparently did not allow residential development in that area or district (it’s unclear whether the zoning code and plan were in conflict).
The owner met with the City to discuss plans, and the City then adopted changes (apparently already in the works, but who knows) to the code to limit height to 120 feet with certain setbacks and 150 feet under any circumstance. The owner then met “informally” with the City Manager and got a letter indicating that the proposal would not be permitted under the amended C-1 zoning. The owner did not appeal, but his attorney wrote to ask if there was any way around it.
The owner then filed a Bert Harris claim, asserting that the adoption of the zoning change inordinately burdened its property by preventing the approval of the 20 story condominium project.
The circuit court dismissed, agreeing with the City that the owner could not maintain a claim because no application was ever made and that only “as applied” challenges can be raised under the Act.
The 1st DCA upheld the circuit court decision. Citing the language of the Act, the Court noted that the plain language requires the application of law. Citing commentators who interpreted the Act as only providing an “as applied” challenge, the Court held: “Simply put, until an actual development plan is submitted, a court cannot determine whether the government action has “inordinately burdened” property.”\
Amazingly, the majority opinion makes only the most passing reference to Hall’s River:
Finally, appellant argues this case is controlled by Citrus County v. Halls River Development, Inc., 8 So. 3d 413 (
This opinion is in clear and direct conflict with Hall’s River and totally misstates the facts. The plan amendment in the Halls case did NOT apply only to the property in question.
However, the opinion does not stop there. Judge Wolf (former counsel for the Florida League of Cities) wrote the opinion and apparently could not help but include an otherwise totally unnecessary analysis of local home rule powers as justification for not broadly construing the clearly remedial Act. Judge Wolf creates from whole cloth an entirely new rule of law: “Thus, an interpretation of state statutes which would impede the ability of local government to protect the health and welfare of its citizens should be rejected unless the Legislature has clearly expressed the intent to limit or constrain local government action.” In this language, Judge Wolf takes
And it makes one wonder whether the Court’s “mis-cite” of Hall’s River – and attempt to avoid defining or certifying conflict – might not be an active attempt to avoid Supreme Court review of the opinon and its new home rule doctrine.
The dissent cites Hall’s River as a reason the landowner should be given the chance to make a case. I actually think that the majority opinion does the landowner a favor. Making a specific application for what he wants and being denied is the best way to demonstrate the effect of the ordinance and the only way to prove that the project could have or would have been approved under the prior ordinance – which (IMHO) would be central to being able to prove up the rest of the case under the Act.
In this “reverse spot zoning” case, the circuit court had found that a single family home surrounded by non-residential uses was entitled to receive office zoning. The 3d DCA upheld the circuit court.
The dissent questions the decision because the “group homes” on at least one side of the property are classified as residential uses. The dissent also takes the circuit court and majority opinion to task for not simply looking at whether “competent substantial evidence” supported the denial. The dissent uses the circuit court’s detailed examination of the evidence for “reverse spot zoning” as sufficient in and of itself that the circuit court impermissibly reweighed the evidence.
The problem with the dissent’s position is that if the Board was legally incorrect in denying the rezoning because the evidence established that the denial would be “reverse spot zoning,” the circuit court would be obliged to cite all the evidence demonstrating the Board’s error. Under the dissent’s approach, if there was evidence to support a reason for denial, the circuit court would err in examining evidence proving that the denial was legally impermissible.
The dissent’s position demonstrates that the current standards of certiorari review are simply too lax and too deferential to the local government position to provide any meaningful judicial review.
3d DCA Finds Reverse Spot Zoning to Maintain Stormwater Benefits to Neighbors Violates Essential Requirements of Law
Ok, the 3d DCA continues to confound. Here, a panel of the Court, with Judge Schwartz writing the opinion, overturned the County Commission’s denial of a rezoning from an ag zone district (one per 5 acres) to an estate district (one per acre). The Court found that not only was there “reverse spot zoning” because all the surrounding property was zoned estate, but also found that the record established that the rezoning was denied because the property has, over time, been used by the surround properties as the dumping ground for their stormwater runoff.
The court finds that is an unconstitutional and improper basis to deny a rezoning, and that the circuit court’s acceptance of that rationale resulted in a miscarriage of justice. Probably the best quote in the opinion is one that too many courts should consider. It’s buried in a footnote: “it may be observed that in this case, as probably in every case, what seems (because it is) unfair also turns out to be wrong.”
That twist is that the landowners didn't start the rights determination process till later, and got caught up further when the City incorporated and adopted and amended the County's land use regulations.
I think there may some different defenses and issues than were presented in the Monroe case ---- in particular, what happens if property is subjected to a limitation by one government agency or local government, then the same restriction is reapplied by another jurisdiction - does a new cause of action get created? But that question is totally buried in the larger mistake regarding facial vs as applied challenges.
The 3d issued a writ of prohibition preventing the circuit court from hearing a declaratory action brought by Publix against a written interpretation of the local zoning code by the city attorney. The code provided NO local administrative appeal of such a decision.
The 3d granted prohibition on the grounds that the opinion was used in the city commission's denial of Publix's site plan, and that decision was being reviewed by certiorari, so that would be the only review under the rubric that there is no judicial remedy until administrative remedies are exhausted.
Well, all very nice, but the bottom line is that cert review of the denial doesn't get fair review of the issue, for several reasons:
1. If there's any other basis to justify the denial, there's no review of that legal opinion or error.
2. The standard of review at that point is totally unclear because cert review is not to determine "mere legal error" but only "gross" errors that are fundamental (at least when a landowner is seeking review; when it's the government, any error appears to be fundamental in the 3d). Pile on top of that the unclear status of how much discretion to give the local interpretation, and you get a situation where the decision would not be overturned unless there was a finding in the order that flatly contradicted the ordinance AND it was clear from the order that the erroneous construction was the sole reason for the denial.
3 Then throw on top of this the "miscarriage of justice" standard, which was originally added to the 2d tier review standards to indicate further the kind of discretion there is in the discretionary review, but which shows up frequently in circuit court cert opinions.
The upshot is that the issue doesn't actually get resolved and determined. The city will win the cert petition and then claim that this vindicates the interpretation. Which it doesn't and can't.
Which gets to the really interesting problem: a circuit court's review of a local decision really can't be taken as "stare decisis" regarding any interpretation of a local ordinance involved for the simple reason that the court isn't determining whether the interpretation was right or wrong, it's whether it was so totally illegal as applied to particular facts that it created a miscarriage of justice.
Which in turn means that there is no real means in Florida today (and certainly in the 3d District, based on this opinion) to get a full and fair determination of the meaning of local zoning and environmental regulations. Back to the need for a statutory remedy for the review of local ordinances and decisions.
At issue was Section 163.3167(12), which prohibits any initiative or referendum for plan amendments affecting five or fewer parcels. The statute was adopted specifically to ensure that small scale plan amendments would not be subject to referendum when the status of those amendments as legislative versus quasi-judicial was still at issue.
Ms. Blackner and Ross Burnaman misled the Florida Supreme Court into error in the Hometown Democracy ballot summary case, and Burnaman helped with the 2d DCA's St Pete Beach debacle, by arguing that the prohibition of some initiatives regarding plan amendments indicated legislative approval of all others (though this was clearly NOT the intent).
Now Ms. Blackner argued that the statute didn't prohibit using a referendum to repeal a small scale plan amendment and rezoning on the basis that parcels other than those subject to the amendment and rezoning were "affected" by it. Somehow, they got the trial court to buy this clearly ridiculous argument, which would effectively gut the restriction totally. The Fourth didn't buy it and overturned the circuit court.
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 notPuryear v. State, 810 So.2d 901, 905-906 (Fla. 2002).
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.
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.
Differential Treatment of "Assembly" for Commercial and Religious Uses Violates RLUIPA as a Matter of Law
While the city claimed that "business assemblies" were equally prohibitted, the court saw this as pretextual at best and found liability based on the city's admissions that theaters, restaurants and similar uses were permitted.
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.
First, the court reiterated its earlier opinion that:
The test in reviewing a challenge to a zoning action on grounds that a proposed
project is inconsistent with the comprehensive land use plan is whether the
zoning authority's determination that a proposed development conforms to each
element and the objectives of the land use plan is supported by competent and
substantial evidence. The traditional and non-deferential standard of strict
judicial scrutiny applies.
Dixon v. City of Jacksonville, 774 So.2d 763, 764 (Fla. 1st DCA
The court then goes on to apply this rule to disallows Jacksonville’s legislative attempt to make exactly the rowing club a park use, holding in effect that ownership, not use, controls whether the City can permit this use in a residential district.
The Respondents urge that our prior holding in Saadeh does not control this
case, because the City of Jacksonville has since defined “parks” to include a
much broader range of facilities and uses. Indeed, they contend that the new
definition makes no distinction between public and private ownership and thus,
they suggest, is intended to incorporate both. We disagree. While, at the time
of our decision in Saadeh, the Jacksonville Ordinance Code did not include a
definition of “park,” the Code now defines that term as “an area designed to
include a combination of passive recreation ... as well as active recreation ...
attracting visitors from the community and beyond a one-mile radius.” See
Jacksonville Ordinance Code, § 656.1601. Nonetheless, this new definition is
substantially the same as the plain and ordinary meaning of the word “park” as we previously defined it, that is, “an area used for recreation and amusement.” Furthermore, the Ordinance Code also continues to separately define a “private club” as “buildings or facilities owned or operated by a corporation, association, or persons for a social, educational, or recreational purpose.” See Jacksonville Ordinance Code, § 656.1601. The Stanton Foundation falls squarely
within this definition. Thus, despite the newly amended definition of the term “park,” we continue to agree with our previous ruling, that Stanton's interpretation of the Ordinance Code and its definitions “is so broad as to render the referenced term ‘parks' meaningless.” Saadeh, 912 So.2d at 31. We conclude that Stanton's use of the property is as a private club, rather than as a public park.
Turning to the Comprehensive Plan, the Stanton Foundation's property is designated LDR, and as such is intended as a primarily residential area, permitting housing developments and single family residences in a gross density range of up to seven dwelling units per acre. See Jacksonville Ordinance Code, § 656.305. Pursuant to, and consistent with, the Comprehensive Plan, Jacksonville's Land Use Regulations permit a number of primary uses, as well as “uses by exception” within the LDR category. Notably, the LDR category does not permit the operation of a private club, either as primary use or as a use by exception. In contrast, a private club is expressly included as a permissible use by exception within the Medium and High Density Residential (MDR, HDR) land use categories. See Jacksonville
Ordinance Code, § 656.306(A)(II)(c)(9); § 656.307(A)(II)(c)(6).
This court has previously rejected attempts to rezone property where the intended use is not permitted in the Comprehensive Plan, either specifically or by reasonable implication. (emphasis added)
The court therefore held that the neighbors were entitled to certiorari and quashal
of the circuit court’s decision and of the City’s grant of the PUD.
Critical points: First, A de novo action under s. 163.3215 (2) should have been the sole means by which a consistency challenge was brought. Why is there no discussion? Has the First District turned consistency questions that turn solely on the interpretation of the plan and zoning regulations into an “essential requirements of law” issue that is not the determination of whether the development order is consistent with the plan? Second, is non-deferential review only available to review the approval of a development order? Is it not available to review the denial of a development order if the developer alleges that the local government’s interpretation of the plan or the zoning ordinance are not justified?
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.
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.