DOAH find Jax Small Scale Amendment "Not in Compliance"

A recommended order issued today finds that a decision by the City of Jacksonville to adopt a small scale plan amendment that intensified land uses in a strip area from Office/Professional to Neighborhood Commercial conflicted with policies designed to discourage strip development, required NC designations to be in "nodes," and protect neighborhoods.

The Jax plan has a number of Policies designed to create integrated nodes and also to limit the intensity of development in strips to office/residential PUDs or TND developments; the RPI land use designation is the appropriate and consistent designation for development in these situations. Regardless, the City approved a change on a parcel that faces an arterial but is bracketed between commercial and other Insitutional designations for the more intense NC designation. The City argued that the "node" required by the Plan for NC designations was a "linear node" (read strip) that extended a 1/2 mile down the arterial from the major intersection. The Petitioners claimed that accepting this analysis or approach would destroy the distinction between nodes and strip and completely traverse the Plan's approach to discouraging problematic strip development.

The City also claimed that the NC designation was "more compatible" than the RPI because of the PUD that was to be placed on the property, and that the analysis of the consistency of the NC designation should take into account the restrictions on the of the property contained in the PUD ordinance and conditions (a truly, deeply and completely ridiculous position, as the City had to concede that different PUDs or land uses could be put on the property in the future).

The hearing officer rejected this and upheld the Petitioner's interpretation of the Plan's anti-strip development policies. "The purpsoe of a node is, of course, to concentrate commercial uses near an intersection and reduce the potential for strip development along arterial roads."

By all accounts, the City has been allowing the conversion of lands far from intersections not to the RPI designation allowed by the Plan policies, but the the NC designation, thereby allowing strips to proliferate throughout the City. Another policy - rejected by the 1st DCA in Dixon v Jacksonville -- [click here to download] -- allowed commercial development as a primary use in RPI-designated lands, despite the Plan's clear statement that commercial is to be used only as a limited secondary use in that land use designation.

Good Planning - 2; Bad Planning 0 - Maybe the citizens of Jacksonville will get some more consistent and better planned land use patterns out of this - and more truly mixed use development.

Here's a link to a PDF of the RO on the DOAH site: Heston et al v City of Jacksonville

Post Script - OK, so I normally don't post DOAH RO's in land use cases up here - but in this case I was the expert for the Petitioners and helped write the PRO. So I'm pleased.

Severe Weirdness

Hi all -
I went to updated the case links in the two 3d DCA cases and somehow the whole entry got deleted. Time to move to a new blogging tool.

Links are:
Miami v Wellman
Miami v. Sinopoli

There has been a lot of conversation about two suits versus one with cert plus dec counts on the ELUS list serve. I'll try to collect them and create a file/link.

Personal Update

Hi everyone -

Just a quick note to say that as of February 23, 2004, I will be joining the Sarasota law firm Levin, Tannenbaum, Wolff, Band, Gates and Pugh. I will be continuing to handle land use and related issues.

I will keep this site, blog and email list running as Florida Land Law for the time being, but links to my information now go to Levin, Tannenbaum's website.

My contact information there:
rkl@sarasotalawyer.com
941-316-0111 x 209.

Thanks for everyone's support! Please continue visiting the site.

Access rights are property rights

Another recent 2d DCA case - Johnson Services vs. Pinellas County, reinforces that access rights from property to roadways are appurtenant rights and are protected by the due process clause.

Pinellas County curbed off two of four access points into the Plaintiff's service station, without notice or opportunity to be heard or to contest the action. When Johnson's Services sued under s. 1983 in state court, claiming that the County violated due process guarantees, the County defended by claiming that the plaintiffs had no "property" in the accesses and therefore no due process rights.

The County argued that because there had not been a substantial diminution in value to the land as a whole - a 5th amendment takings analysis - there had been no deprivation of "property" and therefore no due process violation. [note- I understand from Dave Smolker that FDOT has been making the same argument for years in its access management program implementation.] This argument was rejected by the 2d DCA as fundamentally flawed. Access rights are appurtenant property rights under Florida law and therefore are property interests protected by the due process clause.

One can hope that this case points to the day when the courts stop the pretense that there are no 14th amendment due process-protected property interests in "unvested" building permits, site plans and other development orders or environmental permits. The extension of McKinney v Pate (and the post-Roth cases) that deal with statutorily created employment and welfare rights to the property realm, where the ability to use property consistent with law has been held to be a valid property interest since common-law days, is one of those bad ideas that create complacent regulators and lawyers - not a good thing whether you're a developer or a citizen activist (or anyone in between).

The case - Johnson Services v Pinellas - is attached below. BTW - this is another case that my friend Dave Smolker argued.

Johnson Services v. Pinellas County

In case you forgot - there's always at least 1 judicial review of admin action by right

It's long been established that due process requires at least one meaningful opportunity for the judicial review of administrative action.   See SCHOLASTIC SYSTEMS, INC. v. LeLOUP, 307 So.2d 166   That's the policy behind the curious fact that while certiorari historically is a discretionary writ, if no provision is made in general law for review of administrative action, you get certiorari "by right" under Deefield Beach v. Vaillant.

In this case, released today, the 2d DCA reverses a judge who summarily denied a petition for writ of cert challenging the denial of a plat approval (which is quasi-judicial under Park of Commerce).  While the District Court spanked the lower court for using a "2d tier" analysis, what really happened here was that the circuit court forgot that 1st tier review simply isn't discretionary.

Here's a link to the case, Brasota Mortgage Co. v. Town of Longboat Key.

Contracting Away the Police Power

A flurry of activity on the Florida Env't & Land Use Section's email list led me to post a few Florida cases that describe limits on the ability of a local government to agree to change land use designations (plans or zoning) through a developer's agreement or settlement agreement.

I'll post some ideas on this issue later, but thought I'd share the cases with everyone first.

First: Chung v Sarasota County -- limits ability of local government to agree to rezone a property with conditions to settle a lawsuit:
Chung_v_SarasotaCounty.doc

Second: Morgan Company v Orange County -- court refused to order County to implement a developer's agreement to rezone land, even after the developer completed its end of the bargain:

MorgranCo_v_OrangeCounty.doc

Last: Hartnett v Austin - Mother of Florida cases on "contracting away the police power" in zoning.

Hartnett_v_Austin_93So.2d86.doc

Vested Rights & Temp Injunctions

The 2d DCA just released an opinion in a case involving whether rights could be vested in land use designations, site plan reviews and related approvals.

Charlotte County applied an "airport overlay" in its comp plan after it decided that it didn't like the way that a developer was planning to develop a long-standing industrial area around its private airport. Preliminary re-platting had been approved and a site plan meeting the then-current standards had been delayed from approval while the County worked to change the legislative/plan policies that applied.

The lower court entered a temporary injunction, then went on to grant permanent relief based on the hearing for the prelimary injuction. The 2d DCA upheld the preliminary injunction, but then held that the circuit court needed to hold a full trial on before making ultimate findings and entering a final judgment. As in the PM Reality v Tampa case (another entry), the core issue there is that findings sufficient to support (or reject) a temporary injunction are NOT ultimate findings on the merits: they don't bind the court in making or changing its findings based on a full trial, and can't be the basis of entering final judgment.

charlotte_v_Vetter.doc

On a side note, this case is also notable for the appearance of my friend Dave Smolker and his firm, who traditionally have defended private property owners in these kinds of cases, on behalf of the County.

Tampa Temporary Injunction Case

The 2d DCA held that it was improper for a circuit court to enter a final judgment against the operators of an adult entertainment business without a full trial/hearing on the merits. The court had earlier denied a temporary injunction against the enforcement of the ordinance and that decision had been upheld by the appeals court.

However, it was improper to enter final judgment based solely on the facts and findings that supported denial of the temporary injunction. Such an order is neither final nor binding on the court in making ultimate findings and the plaintiff had the right to put on a full case against the ordinance.

PMRealty_v_TampaII-2D02-4616.pdf

Reconsideration of a QJ Decision

A recent case - SMULL v. TOWN OF JUPITER, 4D02-1818 (Fla.App. 4 Dist. 2003) - released September 3, held that a town board could reconsider its quasi-judicial decision up to the time for filing a challenge to it (30 days from rendition), unless such a challenge had been filed.

Also - and critical to practitioners - the Court held that the time (in this case) to challenge the decision did not begin to run until after the Board had voted to reconsider because the first time it voted the decision was not reduced to writing and filed with the Town Clerk. The Court held that the decision was not "rendered" as defined in Fla. R. App. P 9.020(h) (governing common-law cert appeals) until the decision was reduced to writing and filed.

PRACTICE POINTS:

1) If you're on the losing end of a qj decision, you can ask for reconsideration w/in 30 days.
2) If you're on the winning side of a qj decision, the decision isn't really final until the 30 day window for challenging it closes.
3) Regardless of what side you're on - the time to challenge doesn't start to run until it's reduced to writing AND filed! This is a very, very big thing in many jurisdictions, where board votes are not written and filed immediately. It's an even bigger issue for jurisdictions where denials are not ever reduced to writing!

REALLY BIG POINT:
This creates a GIANT problem for quasi-judicial rezoning decisions. Under Snyder and GBV, a City or County Commission doesn't have to provide a written opinion. But if there's no written decision, it's not rendered - so you can't challenge it.

And to throw in another complexity - the 30 day window for challenging a development order under s.163.3215 has been held to start running when the decision is made, without regard to the "rendered" definition in 9.020(h). So your window to mount a 3215 challenge may be shorter than your window to enter a cert challenge.

For your consideration, the decision is linked below:

smull_v_jupiter.doc

Omnipoint, cert and constitutional challenges

OK, this is my second time writing this post - lost the first when when a file upload crashed the browser before I'd posted and saved it.

The Supremes and 3d DCA took the strange Omnipoint case and made it even stranger. The cases are linked here:

Omnipoint II-Fla S Ct.doc

Omnipoint III - 3d DCA on remand

Here's the new can of worms: The Fla Ct held that you can't make constitutional challenges in a cert petition. No "only precedural/as applied/etc." exception - just a blanket prohibition.

The 3d on remand went further and held that a quasi-judicial decision maker can consder ONLY the criteria laid out in the authorizing legislation that guides the decision.

While I'm a big believer in much more attention to delegated authority, clearer standards, etc., this creates some serious problems. Example - if a special exception or variance ordinance doesn't specifically provide a criteria of "is otherwise consistent with the objectives and policies of the Comprehensive Plan" then the BZA (or whatever board) CAN'T consider the plan in making its decision, even if it would be consistent with the other criteria and discretion of the board.

Everyone should read these opinions - we're going to be litigating the meaning and limits of them for the next 10 years.

Lots of fun new challenges ahead, folks.

Briefs and document in Hernando Prohibition Case

Hi Everyone -

It's been far too long since I updated here - a lot of things will be posted in the coming day/week.

First highlight - briefs from both sides in the Hernando case- thanks to Joe Mason, the attorney for Florida Water Services in the case:

Appellant's Brief

Answer

Reply Brief

5th DCA - prohibition not available in local quasi-judicial action

In what I consider one of the few really bad decisions that I've ever seen from the pen of Judge Sharp, the 5th DCA ruled today that prohibition was generally not available to prevent abuses by local commissions acting quasi-judicially and in particular to deal with the need to recuse commissioners for bias. Instead, the petitioner has to go before the quasi-judicial body, present its bias complaints, and then raise the matter as a due process concern in a later cert petition.

FLORIDA WATER SVCS. CORP. v. ROBINSON, 5D02-2071 (Fla.App. 5 Dist. 2003) Get a copy by clicking : FlaWaterSvcs_v_Robinson.doc


This is not only bad policy, it doesn't track with common-law principles that are well established in Florida. The Court ignored the very clear language in State ex rel Rowlett, 170 So. 311 (Fla 1936), which adopted the following language from Justice Davis' concurrence in State ex rel Williams v Whitman, 156 So. 705 (Fla 1934) holding that prohibition was available as against a quasi-judicial tribunal:

"To the extent, therefore, that an administrative statutory tribunal or agency is vested with statutory power to make decisions having a judicial character or attribute, as distinguished from mere exercise of delegated legislative or executive functions under the law, resort may be had to the courts of the land for the purpose of review, whether any special method of appeal be provided or not, and in such cases the courts of general jurisdiction to whom complaint is addressed against an alleged improvident, erroneous, or unjustified administrative decision shown to divest or impair some vested legal right, unless abrogated or modified, will grant an aggrieved party relief against quasi-judicial decisions of such administrative agencies, by means of those available common-law processes adapted and designed to be used by the courts to restrain excessive or unauthorized exercises of powers on the part of subordinate jurisdictions or quasi-judicial tribunals." And in State, ex rel. Swearingen, v. Railroad Commissioners of Florida, 79 Fla. 526, 84 So. 444, this Court said that the writ of prohibition "lies against any person or persons assuming to exercise judicial or quasi-judicial powers, although not strictly or technically a court." It must also be borne in mind that in Curtis v. Albritton, 101 Fla. 853, 132 So. 677, we said that the writ of prohibition is the counterpart of mandamus in the manner in which it operates, being negative, while mandamus is positive in its commands, and that in the following cases, writs of mandamus against the Respondent Board have been sustained: State, ex rel. Tullidge, v. Hollingsworth, 103 Fla. 801, 138 So. 372; Idem, 108 Fla. 607, 146 So. 660; State, ex rel. Page, v. Hollingsworth, 115 Fla. 851, 156 So. 286; Idem, 117 Fla. 288, 157 So. 887. So that we hold that in cases where the Respondent Board is acting without jurisdiction or is exceeding its jurisdiction in not proceeding in accordance with the essential requirements of law, those common law processes adapted and designed to restrain such lack of jurisdiction or excessive exercise of power, including the remedy by prohibition, are proper. State, ex rel. Crabtree, v. Porter, 111 Fla. 621, 149 So. 610

It is clear from this case and others, such as Greenberg v Bd of Dentistry, 297 So. 2d 628 (Fla 1st DCA 1974) and the famous State v Falls Chase Taxing District424 So.2d 787 (Fla. 1st DCA 1982), that the courts do have and must have plenary power to control the quasi-judicial activities of agencies and local governments. In the absense of a general law creating a local government APA, the courts should use all of these tools to prevent miscarriages of justice, not force litigants into the unfair position of having to bear the risk and expense of multiple arenas of litigation in order to get fair and proper treatment before a local administrative body.

Here are some of those opinions:
ExRelWilliams_v_Whitman.doc

State_exrel_Sbordy_v_Rowlett.doc

Greenberg_v_StBdofDent.doc

I can only hope that the decision of the 5th was made without the benefit of these cases being cited and that the issue here makes its way before the Supreme Court sometime soon.

Temporary takings - damages case

City of Tampa v Redner - bar owner denied a special permit (wet zoning) to sell liquor attacked the decision on both substantive and takings grounds and won the takings case, including damages based on lost lease income.

Second DCA reversed the takings damages, citing Wheeler for the proposition that the right measure was to take the difference in land value with and without zoning and basically give the landowner interest on that amount for the duration of the taking. Also, no attorney fees or other costs.

Bad reasoning. First, as the dissent lays out, the Wheeler case involved raw land that was zoned for apartments, but no apartments built. The court reasoned that it was speculative to try to determine not only whether willing lessors would present, but the amount of the leases. Moreover, the court reasoned that the appraised value of the land would take into account the true value of the income stream and that the "interest rate" would fairly represent the profit to be taken from it. Here, you had a building already developed and lease contracts on the table that simply required the removal of the illegal burden.

More importantly, and not discussed by the majority or the dissent, Wheeler was a US case tried under the 5th amendment. In Florida, our constitution not only give protection against temporary takings, it also provides for full compensation when a taking occurs. So the measure should have included the attorney and appraiser's fees, etc.

Beyond the damages fight, the case demonstrates that if an improper ordinance or regulation destroys all use, you can both attack the regulation as invalid AND get temporary takings damages for the time it was applied.

Tampa_v_Redner.doc

Miami Beach case - Harris Act damages reinstated

The 3d DCA - unsurprisingly - overturned a Circuit Court determination that held that the actions under the Harris Act couldn't be maintained against a municipality under sovereign immunity (actually a clause in the Act that indicated that the Act itself wasn't a waiver of immunity).

Here's a link to the case (Word format) - RoyalWorld_v_MiamiBeach.doc

So now we'll probably have some cases where we find out whether a significant downzoning is a compensable "undue burden" under the Act.