Growth Management II: Yet another GM study commission

In the never-ending quest by the Legislature to either fix or gut growth management (depending on your view and the particular bill that's running in any given year), there's a bill to set up another growth management commission - Here's the text.

It's pretty much the same fare as past commissions - 15 members, 5 appointed by the Pres of Senate, Speaker of the House and the Governor. There's room for an executive director, travel money for members and committe members, and authorization for consultants. But only $300,000 budget.

I just wish that we'd get one of these commissions to focus on process rather than trying to "fix" the outcome. Here's my wish list:

1) A land use board of appeals like Oregons to speed up decisions and make them more consistent.
2) A single statute providing basic administrative procedures requirements for local governments and for effective judicial review of them (including something that gives the circuit court powers like the District Courts have in Chapter 120.68 proceedings). Include some basic evidence standards and a consistent way to address bias issues in local decisionmaking. Require written opinions of all staff processes, even when they only make recommendations to another decision maker.
3) Tie the consistency review into the above so there's one consistent form of review for rezonings, special exceptions, etc.

This kind of approach would address review standards and the gross levels of discretion that local government adminstrative actors enjoy today to the detriment of both the development community AND neighbors/environmentalists, etc.

Growth Management in Legislature I: Bennett's DRI Bill

The Sarasota Herald-Tribune had this editorial today dinging the this DRI bill that's been working through the Senate. The bill would do a number of things that are problematic to most growth management advocates, espcially raising the DRI threshold for residential development in rural counties (where the plans, LDRs and staff are far more limited) where DRI review is considered the only way to get effective, integrated treatment of environmental and infrastructure issues.

This is one to follow during the waning weeks of the session, because if it gets cleaned up enough to get past the editorial board response and gets more traction, it could end up being a train for other "helpful" growth management legislation.

Special Districts and Validated Assessments

The 2d DCA entered a decision last month in a long-contested battle between landowners within a special district and the district to force the district to repay special assessments (for maintenance and capital improvements) - Spring Lake v. Tyrell (Spring Lake II).

Here's the interesting thing about these cases: despite the fact that ALL of the parties agreed that none of the improvements made by the District would benefit the plaintiffs' properties, the DCA in Spring Lake 1 had held that the capital improvements portion of the assessment could not be refunded because it had been part of a validated bond.

SO - if a District (of any kind - or a local government) validates a bond for special improvements backed by special assessments against all of the properties in the District and then doesn't construct improvements that benefit some of the properties, the burdened but not benefitted properties can't escape the assessments. Doesn't seem right to me - assessments should be re-worked against the benefitted properties instead. But that's not the law, now.

This is the ONLY case I found that's dead on this point.

Maybe I'm over-reading the precedent and there's some specific aspect of how these bonds were validated that created the result, but I don't think so.

Love to hear any comments on this one.

Charitible exemption: partial year ownership by charity doesn't exempt property from tax

Dealing with property tax challenges is the kind of thing that land use lawyers sometimes get pulled into on behalf of clients (I know that I did once). Florida's rules on when real and personal property are exempt from ad valorem taxes are a bit vague and there's surprising little caselaw on it. Here's a case which holds that because real property taxes are levied based on the use as of January 1, a property bought by a non-profit, charitable entity after that date (and put to charitable use) is still taxable: Jim Smith v American Lung Ass'n

BTW on Code Enforcement and the Deland article

At the end of the article on challenges to Deland's enforcement of it's "2 unrelated people" limit for families, there was a statement that after June 1 the City would be able to asses their $500/day fines without any further hearings. This isn't really the case.

Those of us who've had to deal with Chapter 162 on Code Enforcement probably have a lot of comments on the limitations of the statute. But it appears that a lot of people are unaware of Massey v. Charlotte County, 842 So. 2d 142 (Fla. 2d DCA 2003) (here's the original 2d DCA original opinion) . It held that the statute has to be interpreted so as to require the Code Enforcement Board (or whatever it's called locally) to hold a hearing to confirm that a violation is ongoing and make the findings required by the statute before actually levying a fine. And while it gave the local governments a lot of wiggle room on the actual process, it makes it clear that there must be one.

Moreover, given that the decision basically says that this is a fundamental due process question, I think there's a strong argument that it applies to any code enforcement action and fine that hasn't yet been finalized into a lien.

Love to hear any war stories from folks who have used this decision to get a hearing from a CEB or against fines that have been levied in contravention to it.

Abstract Appeal on Tampa Housing v Burton

Matt Conigliario is an apellate attorney (with a well known Tampa firm) who keeps a very good blog on happenings in Florida appellate law. Here's his review of the Tampa Housing Authority v. Burton case I posted yesterday:
Abstract Appeal -- April 2, 2004

This is one of my daily reads.

Deland's attack on non-traditional families and the problems of Code Enforcement

One of the more common and problematic features of zoning codes/land development regulations is (yes, the verb modifies "one" in this case) the definition of family. Or, more to the point, the inclusion of restrictive definitions of family to define just who can or cannot live in a given dwelling unit.

Thanks to Matt Conigliaro of AbstractAppeal.com for finding this story about how Deland has adopted and is trying to enforce a definition of family that allows only two (yes, two!) unrelated persons to live in a single dwelling unit. The City is prosecuting landlords who rent to more than two college students at a time.

Here's the actual definition (thanks, MuniCode!) of familyfrom the Deland LDRs:

(98) Family means any one of the following, when living together in a dwelling unit or using it as a common place of abode for 30 days or more in any three-month period:
---A natural family of one or more persons who are all related to each other by law, blood, marriage or adoption.
---Six or fewer persons living together in a facility which is licensed by the Department of Children and Family Services in accordance with § 419.001(2), Florida Statutes, or registered under § 409.176, Florida Statutes, or a substantially equivalent statute.
---A maximum of two unrelated persons, together with their natural family who are related to each other by law, blood, marriage or adoption.

Apparently the attacks on the current code efforts are based on discriminatory enforcement, but I think that all of these definitions have to fall either on privacy grounds (in Florida) or on vagueness grounds (that go to discriminatory enforcement).

This, on its face creates some rididulous levels of interference. Presumably, the last provision is intended to allow "Kate and Allie" situations - two single moms, with their kids. But that's not really what it says - maybe. It might also only be intended to cover situations where an unmarried mother and father have kids (the their covers only situations where the 2 people who are unrelated are related to everyone else). If not, the parsing problems get completely out of hand:

--A couple might not be able rent a room to a single person - there are then two related people but also two unrelated people (t/p to husband; t/p to wife). If the "their natural family" is understood broadly, then the couple could take in a single renter and maybe allow a second couple to rent (two related groups?). But if so, then you get into really nasty territory.

--What if the couple is gay? Then if they rent a room to a friend, it's three unrelated (by law) people. So gay couples are discriminated by this definition on its face.

And now lets get really on it. Does fosterage or guardianship create a relation "by law"? So if a couple takes in a foster kid, ok. If they have a child of their own, not OK? If they take on a second foster child, not OK?

And then what about gay couples and families? Two women live together - OK initially. One woman has a child with the second - Florida law doesn't allow the second woman to adopt the child. Whoops, three unrelated people?

Pretty quickly you get to a situation where almost any dwelling unit with 3 adults in it is suspect and almost any group of more than four people could be requried to demonstrate on demand that they are a proper family.

Examples:
-- Two brothers and their best friend live together. To avoid being cited, the brothers have to keep their birth certificates around? (is this a violation anyway because the 3d person is unrelated to 2 others?)
--Same with the family with one child that takes in a foster child - do they need to keep their marriage certificate plus the birth certificate around to prove that the three people are related? And if they take in a child of a friend - is this too many unrelated people?
-- A couple invites the sister of one to come live with them - do they need to have their marriage license available at all times to show the nosy cop or code enforecment person? And if the couple is gay, they can't produce the relevant documents and are violating the ordinance where a straight couple would not be.

On its face, enforcement of the family definition adopted by DeLand (and by many other local governments) demands scrutiny into relationships that are protected under Art. I, s. 23. It also gets the enforcement people into deep trouble immediately Who gets cited and who doesn't? what proof is needed to avoid a citation if a neighbor complains? How could a field officer ever consistently determine what information will or won't be sufficient for the occupants to avoid a citation?

The City's valid interest in avoiding overcrowding can be handled through regulations that address how many people per bedroom you can have in a dwelling unit or similar inquiries that don't rely on the highly suspect inquiry into who counts as a family member.

Good luck to the attorneys who are fighting this one!

More cert confusion - and a simple remedy

The 2d DCA released a case last week that demonstrates just how convoluted the standards of review are in cert cases. The case involved an eviction trial by the Tampa Housing Authority. At the end of the trial the tenant lost and moved to set aside the judgment. The judge issued an order for a new trial - sua sponte - on the basis that one of the jurors had slept through parts of the trial.

Cert to the circuit court ensued and the Housing Authority lost.

Cert to the 2d ensued and the Housing Authority lost again - Tampa Housing Auth v Burton

What's interesting is to compare the court's analysis here with the analysis in the recent Sarasota County case. Ulitmately, the court found that because the result of the order was the Authority would still get its (second) day in court, there wasn't any fundamental miscarriage of justice - here's the scary paragraph:

Unlike application of incorrect law, misapplication of correct law by a circuit
court sitting in its appellate capacity generally does constitute a violation of clearly
established law resulting in a miscarriage of justice. Ivey, 774 So. 2d at 682. Thus,
even if there is legal error in the circuit court's decision that the trial court did not abuse
its discretion in granting a new trial, we are unable to conclude that this is one of "those
few extreme cases where the appellate court's decision is so erroneous that justice
requires that it be corrected." See Combs v. State, 436 So. 2d 93, 95 (Fla. 1983).

So, essentially, the 2d DCA is saying that in the case of 2d tier cert review, circuit court errors in applying the law should only be corrected if the are SO erroneous that justice requries them to be fixed. But that's not really consistent with what happened in Sarasota, where the effect of the circuit court's quashal of the denial of the rezoning wouldn't have been to force the County to rezone the land, but to require the County Commission to re-open the hearing and redecide the matter based on the application of the correct law (e.g. just the plan as it existed on that date) and also to apply the proper facts.

What we really come to is that the whole "miscarriage of justice" type argument on 2d tier review - which technically applies to first tier review as well - has produced what amounts to unfettered discretion on the part of courts faced with a petition for cert to deny them on completely subjective grouds, regardless of how badly screwed up the proceeding or determination was below.

The fix? Really simple: the LEGISLATURE should provide a uniform basis for APPEALING local administrative determinations to circuit courts. It should provide for appeals from quasi-judical decisions with the same remedy provisions as are found in 120.68 (so the court can actually get the situation fixed), and for de novo review of local administrative decisions that don't have the full panolply of due process protections from the local government. It could provide for expedited discovery and adminstrative type rules of evidence in the latter cases to speed the process and lessen the expense; it should also allow the circuit court to refer those de novo cases to a special master for determination. Then we'd get much more consistent review for legal error and a clear and consistent set of playing rules for all.

Cert a mess in rezoning - more info

As promised, here are more documents relevant to Sarasota County v. BDR Invest., the cert/rezoning case I posted last week. Formats vary because I had to scan some and got others from the source.

(BTW - Thanks to both Gary Oldehoff of Sarasota County and to Mike Furen for being VERY responsive to my request for copies of the pleadings).

Circuit Court's Order Granting Cert
Petition to Circuit Court
County Answer in Circuit Court
Petitioner_reply..pdf

I've got the County's petition and reply in the 2d DCA case - still need to get BDR's answer, but here are those documents:
Sarasota County's Petition for Cert to 2d DCA (WP format)
Sarasota County's Reply(Word Format)

Just a couple of substantive notes on this:
1) on CSE in the record. Without going into the whole idea that "need" is or is not a valid condition, the County here claimed that there was CSE to support the denial based on the staff report's statement the the Applicant had not demonstrated this. The Applicant (later Petitioner) then put on evidence regarding this before the Planning Commission and County Commission, which apparently was rebutted only by a neighbor's bare statement that there was no need because there were existing 5 acre lots in the area.

If a staff report notes a deficiency in evidence or potential issue regarding consistency with the plan, and this statement is then addressed by the applicant in its presentation (or if it makes a statement finding consistency which opponents present testimony against), the government should NOT be able to claim CSE based on the staff report. The government should be required to present rebuttal testimony on the record (and subject to cross examination, etc.) against the testimony presented at the hearing. Any other approach creates a situation where ANY comment in a staff report (which is NOT sworn, and which is NOT subject in and of itself to cross examination) can effectively conclusive in supporting the Board's decision. This is a gross due process violation because it effectively creates an unrebuttable presumption in favor of whatever position the staff takes, however unsupported by the evidence adduced at the hearing. See, e.g., Miami Dade v Reyes, 772 So.2d 24 (Fla. 3d DCA 2000)(while county ordinance could provide that meter reading was prima facie evidence of the delivery of water, it could not make this an effectively irrebuttable presumption).

2) On the complex and increasingly difficult issue of impermissible vague or internally contradictory goals, objectives, policies or provisions in ordinances.

In this case, the County is in large part relying on general goal language in the Plan supporting the maintenance of agriculture and some language in the intent section OF THE ZONING DISTRICT itself that purports to require a demonstration of need before more "intense uses" (which might or might not mean the higher level of density) before a rezoning occurs.

These provisions are extremely vague and subjective. The zoning provision also seems to want to trump - or add substantively to - the comprehensive plan's own requirements. The application of such policies - which also now can be "post -hoc" in a zoning decision because of the very very bad Snyder and GBV "exemption" from detailed written findings - create serious due process problems. These are made all the worse because an Applicant can't figure out whether s/he has to object to their use at the hearing itself. And it's made even WORSE by the whole Omnipoint approach to constitutional issues: just how do you object to the application of an unconstitutionally vague policy -- or an ad-hoc or incipient policy regarding interpreting a policy? Do you have to raise it at the hearing (when you don't know how they're going to apply it yet)? Can you raise it in the cert petition (and what evidence do you have that they're applying vague policies)? Do you have to - or can you - raise it in a dec action if you believe that the local government applied a vague policy?

US SCt remands Clean Water Act determination to 11th and District Court

Ok, I don't post a lot of environmental law cases, but this one obviously is pretty big.

The Miccosukee Indians challenged aspects of South Florida Water Management District's implementation of the Everglades cleanup on the basis that they hadn't properly permitted their activities regarding one of the big pumping stations (S9) under the Clean Water Act. Basically, the argument is that the pumping of water from east to west (against the basic flow) combined with the levee system, had the effect of discharging pollutants (picked up in runoff in the more urbanized areas to the east) into the Everglades. Basically, SFWMD pumps the dirty water west, where the levees slow or prevent it from moving back east and instead allow the waters to flow south into the Everglades.

The District Court and the 11th Circuit both held that because SFWMD pumped water from one water body into another, it needed a permit under the Clean Water Act.

SFWMD and the US argued that the act of pumping from one body of water (the canals, etc.) to another didn't constitute a discharge because the water bodies were the same (e.g. that the levees that separated them didn't create distinct bodies of water). They later argued (and this will be a big deal on remand) a "unitary" theory that ALL navigable waters (and therefore under US and CWA jurisdiction) are one body and that there is never a need for a discharge permit to move water from one to another.

The US SCt determined that summary judgment was improper (at this stage) and remanded for further determination of whether the two areas (separated by levees) in fact constitute separate water bodies and also for argument on the "unitary" theory.

Setback for the Tribe, but no slam dunk victory for any side.

Here are the syllabus, the opinion, and a concurrence/partial dissent by Justice Scalia.

Cert Review of Rezonings - Still FUBAR

The 2d DCA granted cert to Sarasota County, quashing a cert petition granted by the circuit court against the Sarasota County Commission's denial of a rezoning applications. It's a mess.

I'm going to try to scan and post the original order and petition/answer as well as the appellate petition/answer/reply sometime soon for all to read, but here's a synopsis:

The rezone (of ag lands from 1 unit/10 acres to 1/5) got generally passing views from staff and was approved by the Planning Commission with recommended conditions. Note - in Sarasota County, the practice is to avoid a staff "recommendation" one way or another.

At the quasi-judicial hearing before the BCC, all hell broke loose. The County Commissioners started discussing the impacts of a just-adopted (but not yet approved) land use amendment that might allow the petitioner to come back for another rezoning to do a "conservation subdivision" that could allow 1 unit/3 acres. A neighbor was allowed to testify extensively that there was no demonstrated "need" for lots. Then at least one Commissioner started investigating the traffic analysis and got the relevant staff expert to opine that the traffic model had been run backward.

The Board voted to deny the rezoning petition making a few basic findings.

The Circuit Court granted a petition for cert based on its review of the record and determination that a) the Board applied the wrong law - that it denied based on the application of the new plan provision and in doing so violated due process, and that b) the denial was not based on competent, substantial evidence in the record.

The 2d reversed in this opinion. It found that the circuit court applied the wrong law because it didn't follow .Snyder's back and forth process for the review of the decision. It also found that the court had improperly re-weighed the evidence.

A couple of notes here. First, the effect of the Circuit Court's quashal of a rezoning denial is not to order the lower tribunal (here the BCC) to grant the rezoning; instead it orders the the board to re-consider and re-enter a decision. This seems to be absolutely the right thing to do when the Board's written or unwritten decision is insufficient to justify its LEGAL basis for action (as opposed to the CSE/factual basis). Of course, this is an endemic problem to rezonings in Florida given the Florida Supreme Courts unfathomable and untenable postiion in Snyder and Broward County v GBV that full written opinions aren't required. (see Justice Pariente's telling dissent in GBV).

Second, the 2d DCA did exactly what it's NOT supposed to do in addressing the "competent substantial evidence" review - it peered into the Circuit Court's review process. This is not a case where the Circuit Court stated that the lower tribunal had improperly applied the evidence - the Circuit Court found that there was no CSE to support the legal basis for the denial. Or, in other words, all the negative evidence in the record went to matters that were not legally sufficient (e.g. "need" for a rezoning, which is not a basis in the Sarasota Plan or LDR's).

Third, under the 2d DCA approach and interpretation of Snyder, there's essentially no way for a landowner to establish that the denial of a rezoning was improper. This was not the intent of Snyder (and there's REALLY problematic language in the "shifting" discussion in which the court didn't really say what it meant). The 2d seems to say that somehow "the correct application of law" is limited to the Snyder formulation and that there is no other law to apply - which is just silly, if you think about it. It's clear that a Commission can't apply incipient policy (unadopted plan policies) or policies that lie outside the Comp Plan and LDR - but if they discuss those things and clearly (from the record) decide based on them but fail to make a written finding on those ancillary matters, the 2d's position ends up being that this abuse is unreviewable.

I hope to provide more posting/info on this soon.

Sign, Sign, Everywhere a Cafe Erotica Sign

In this case from last month (thanks to Matt Conigliario at AbstractAppeal), the 11th Circuit struck St. Johns County's sign ordiance for giving impermissible discretion to the County Administrator to determine what signs are political and therefore subject to restrictions.

The case was brought by those kindly folks who specialize in naked waitresses at truck stops - and who are nervy enough (surprise, surprise) to use their billboard space to make negative statements about the politicians who keep trying to put them out of business.

The County's sign ordinance created three clases of signs: billboards, site-signs and "special;" the latter included signs that had a political message and limited them to 32 square feet as well as requiring that the sponsor of the sign be identified. But the definition of billboard was very broad.

The court basically found that the County was impermissibly discriminating against political speech; it also created a situation where the County Adminstrator could classify some signs carrying political messages as billboards (allowing them to be bigger), or conversely, determine that some (undesireable) message was "non-commercial" and political and therefore could not be put on a billboard if the the billboard was over 32 square feet - or that was a violation of a valid billboard permit.

Yet another badly thought out attempt to limit political speech - and in this case - silence Cafe Erotica and We Dare to Bare, who were placing messages attacking the local commissioners on the billboard space they so copiously rent along I-4 and I-95 in that neck of the woods.

Here's the file:Cafe Erotica v St Johns County

Don't go near the water (not)!

The City of Key West fell afoul of state antitrust laws as well as against the commerce clause - and s. 1983 (and presumably attorney fees under s.. 1980) by granting two tours (the famous Conch Train and the Old Town Trolley) exclusive rights to operate near the waterfront and criminalizing Duck Tours attempts to beguile tourists and cruise ship passengers into water tours in WWII "duck boats."

The 3d DCA held that this was a violation of state antitrust laws -- the City's arguments about being authorized to limit competition under its general authority to regulate the streets was, well, not sufficient to get it past federal antitrust scrutiny, which in turn left it liable to be found in violation of the Florida law. The court held that the City would be liable for attorney fees and costs under the state statute.

But that's not all! The court went on to hold that summary judgment against Duck Tours' commerce clause claim under s. 1983 was improper -

"Reading the summary judgment record in the light most favorable to Duck Tours as the nonprevailing party, the ordinances constitute a burden on interstate commerce that is clearly excessive in relation to the putative local benefits. "

Yet another case of a local government pretty blatantly over-reaching and the refusing to say "my bad" when busted.

Here's the case in PDF format:

DuckTours_v_KeyWest

Update - ELUS discussion of Omnipoint

I've finally compiled the long thread(s) of discussion of the Omnipoint and "declaratory and cert in the same action".

There are a lot of land use practice areas where the law isn't as settled as it should be, but the fact that the top land use attorneys in the state (represented in this discussion) can't agree on a pretty basic procedural point regarding how these cases should be litigated is a pretty good indication (to me, anyway), that the law isn't clear enough.

Here's a link to the combined (and edited a little bit) thread: Click Here to get Document