Due process means a real "day in court"

The 4th DCA issued a recent opinion that again strengthens the rule that local procedures cannot be used to deprive a person of due process and the protection of interests in a fair hearing that has effective judicial review.

In this case that involved a dismissed firefighter's attempt to get a review, the 4th held that the firefighter could attack the decision in a declaratory action where his request for a grievance (that would result in a reviewable arbitration decision) wasn't acted on by the Union and the City took the position that if he requested a grievance he couldn't demand a hearing before the Civil Service Board. The court's point: you can properly give a person a choice of remedies, but you can't deprive them of the right to a due process-protected procedure by how that choice is implemented.

Applicability to local land use law? How about the fact that most land development regulations today provide for an administrative appeal process for a landowner/developer who is denied a building permit, clearing permit, variance or similar process, but not aggrieved or affected neighbors. If the neighbors can meet the 'special damages' tests, they get to go to circuit court for a remedy because their interests are involved and the local government can't determine their rights by who they do and don't provide standing to enter the administrative review process.

Cert- law of the case on remand

Under ABG Real Estate Dev. Co. of Fla., Inc. v. St. Johns County, 608 So. 2d 59, 64
(Fla. 5th DCA 1992) (noting that a court's certiorari review power is limited to quashing
the order reviewed), a reviewing court cannot direct the lower court how to resolve the case on remand.

HOWEVER - in this case issued by the 2d DCA last week, the court clarifies that legal holdings in a cert decision are binding on the lower tribunal as the law of the case. The lower court cannot retry or reinterpret the case in ways that are inconsistent with the direct or implied legal determination made by the reviewing court.

This is an important limitation on the discretion of the lower tribunal to jigger its analysis to come to the same result after remand. More on other limitations later.

Too cool not to share

It turns out that the New York Times (along with FindLaw) maintains a site that has the US Supreme Court current docket by month. The entries include the lower court opinions, orders and briefs in the cases. For cases argued there are links to the transcripts.
Here's the link

Meandering Jurisdiction

Sometimes I troll the DCA opinion sites looking for interesting cases outside the land use area that bear on our issues. This case doesn't have anything at all to do with land use, but it's so wild and unexpected, I had to post it.

Turns out that the boundaries of the State, at least on the east coast, are defined by the easternmost edge of the Gulf Stream. Yep. Those of you with any marine background will probably know that the Stream, well, meanders, depending on the time of year, direction and strength of the wind, etc.

As a result, jurisdiction over a shipboard doctor in this wrongful death case depended on where exactly the ship was at the time and where exactly the Gulf Stream was on that day.

Strange but true.

Federal Law keeps City of Surfside from fining orthodox jews for daring to rent office space and pray

The 11th Circuit upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act in this opinion and held that it prohibits the City of Surfside from banning churches but not clubs and organizations from its business district.

I think the opinion bears reading for any land use attorney who might have to deal with onerous (facially or because of the local government's attiitudes) special exception requirements for locating churches, but what's really compelling is the story of Surfside's war on small Orthodox congregations using the Zoning Code and Code enforcement to try to run them out of town.

It's a truly scary thought that the search for "ratable" commecial uses would reach a point where a City would actually argue that allowing a small congregation to rent and use office space to hold services would harm the economic well-being of the community. So the lost sales tax on one or two offices is going to crush the City's finances? Please.

How NOT to litigate a takings case

The 11th Circuit released this opinion in a case where landowners sued the City of Fort Walton Beach in a s. 1983 action. The allegation is basically that city employees or officials came in at the request of a private party (HAS to be a neigbhor fight) and paved a section of their property.

For some reason they went to federal court with a 1983 claim for takings (under the public use clause) rather than suing for inverse condemnation in Florida court. Don't ask me why - you'd get more compensation in a Florida court case (full being atty's and engineers/appraisers) if you win than in fed court, and you could much more effectively litigate the title issues.

Moreover, the case is (as Matt C points out over at Abstract Appeal) a good exposition in how not to plead when trying to attach 1983 liability to a city or even to get the personnel on the hook personally.

Sunshine Violation - Apparent or Ad Hoc Advisory Group

All of us who deal with (or represent) government groups should read this case in which the 4th DCA found that a "pre-termination conference" conducted by the department head (as delegated from the County Administrator) with EOC and HR representatives was covered by Sunshine Law requirements.

Essentially, the fact that they met as a group and deliberated about the issue was enough to make it a body for Sunshine purposes, even though the department head retained the decision making authority and no county policy designated the "board" as a decision making group. The very convening of a group around the policy decision to terminate opened it to Sunshine.

This opinion will be big grist for the "development review committee" mill - LOTS of local governments use these informal meetings of department representatives to review and discuss proposals, and lots of them still try to find ways to keep them closed (ordinance grant all the authority to the County/City Administrator, or provisions that the committee doesn't vote, or requiring general meetings "with staff" and having it a "group meeting" at the convenience of the applicant). This opinion should drive home that if the DRC meets, and if it talks at all about the substantive decisions, actions taken subsequent will be subject to challenge if the meetings aren't open.

ONLY in the Florida Keys

Would you have this case, in which renters who had built illegal structures argued (with initial success) that the landlord had to eat the code enforcement violations they created and couldn't tear down their iillegal structures or terminate their leases.

Recreational vehicle parks get more pads per acre than traditional subdivisions would (at least they used to in the Keys). A few parks in the Keys had deals where folks could basically rent the pads year to year with renewal rights - originally folks up further north used them as weekend (if from Miaim-Palm Beach) or winter (if from snowy climes) places to park their campers. Over time folks just moved in big motor homes and started building porches, garages, and Tiki huts (ONLY in the Keys) etc., on them. Through the late 70's and early 80's this seemed like a pretty efficient way for the non-rich to enjoy a winter home in the Keys.

Bring in two big changes: economics - the park gets really valuable as development land if only the new owners can get rid of all these campers; and growth management - eventually Monroe County realizes it has a zoning problem and starts code enforcement actions against the park for the unlawful buildings.

So the new park owner tries to terminate the year-to-year leases on renewal for creating violations and the offending renters take them to court, arguing that because the old owner turned a blind eye, the new owner was basically estopped from enforcing the building code against them, even if the park owner was being fined.

What's amazing to me is that the case ends up turning not on the clear question of whether a landlord always has the right to demand that tenants not violate zoning regulations, but instead on waiver and estoppel arguments construing the renewal rights to the leases and the right to require compliance with the County codes via a requirement to follow Park rules. The Court ends up finding that the landlord could force them to leave based on non-compliance with the Zoning Code, but you really wonder why it would ever have to go that far :)

So what if you file that constitutional challenge in cert?

OK, so post-Omnipoint we know that you have to bring your constitutional challenges in a dec action. So what if you misfile them as a cert petition? Is it a crime against the R Civ P? Would it subject one to 57.105 sanctions?

Not according to the 3d DCA, which in this case , while it granted cert to the City on the basis that the claims were constitutional in nature, directed the lower court to treat the case as an original declaratory action on remand.

Florida Musings: Citizen Groups' Standing in Jeopardy (submitted by Terrell Arline)

OK - here's a cross-blog link to a post by Terrell Arline on Mike Morell's Florida Musings site regarding two recent cases that seem (haven't read the orders yet) to seriously threaten the ability of non-profit corporations to challenge plan amendments under 163.3184. This is a big deal because these corporate forms are one of the critical ways that local citizens can actually afford to fight land use battles (not only by sometimes being tax deductible, but also by providing a way to aggregate funds to pay an attorney without anyone risking serious tax liability).

I'll post later this week about another threat to public participation in the planning process - a recent final order from DCA under which local government's now aren't subject to compliance review for their public participation programs (or failure to follow them when adopting amendments).

Florida Musings: Citizen Groups' Standing in Jeopardy (submitted by Terrell Arline)

Short term rentals as a non-conforming use

The 3d DCA issued this opinion the other day in Rollison v City of Key West. The 3d overturned a circuit court opinion that determined that the City could apply a later-adopted amendment to its zoning code to overturn an earlier staff/attorney interpretation that allowed short term rentals in a particular PUD so long as the unit was rented in this way for less than 50% of the year. The 3d found that her past rental practices constitute an existing non-conforming use and are therefore grandfathered against the new rules.

This case is important because it explores the boundaries of what is a "use" regulated by the zoning code and implies some significant limits on how local governments can use zoning (and code enforcement) to regulate or eliminate 'activities' (from rentals or adult entertainment) rather than their other regulatory powers when they want to regulate "activities" - especially established ones.

The owner before buying the unit had sought a determination from the City attorney that short term (1 week) rentals would be permitted under the applicable zoning and was advised of the "50%" rule above; the previous owner had engaged in the same behavior. Moreover, the City issued different types of Occupational Licensees for "short term" rental (which met the 50% rule) versus "transient" rentals (where units were rented for <28 days for more than 50% of the year).

The City then changed it's official position, adopted new definitions of transient accommodations that changed the definition and tried to apply that to Ms. Rollison's unit. A first attempt was overturned for failure to follow the zoning change notice requirements and when a the rules were adopted a second time, she sued for declaratory relief again, asking for a determination that the rental activity was a non-conforming use grandfathered under the zoning code.

The City won at the circuit court level and lost before the 3d. The City took that position that the interpretation was inconsistent facially with the ordinance, and the trial court apparently took the position that the Commission had to ratify the interpretation. The 3d held that the 50% rule was a permissible administrative interpretation of the language in the ordinance, that the City had officially adopted and applied that interpretation to Ms. Rollison and others over a period of time, and that rental activity consttituted a "use" that simply became non-conforming (and therefore grandfathered) after the new rules were adopted.

It shoudl be noted that local governments have in recent years done more and more to try to use the zoning code to ban activities that they deem problematic. They use the definition of "family" to try to control young people who rent a house together and may throw parties or otherwise act uncivilly. They ban parking work vehicles in residential zones as an "activity."

Why? Because zoning violations can be enforced through Chapter 162 code enforcement procedures that take place beofore a sympathetic Code Enforcement Board under procedures and processes that give the targeted homeowner far fewer protections than a criminal or civil procedure in county court. And the result, if successful, can create HUGE fines, far in excess of what they'd get under other approaches, that become liens on the property (especially if not homesteaded). And this also give them a hammer against rental property, as the unit owner becomes effectively liable for the actions of his or her tenants.

This decision indicates, however, that if local governments define an activity as a use, they also have to live the the protections that are given to non-conforming uses. Look to this defense being employed pretty widely - and then a new series of cases that test the limits of local government authority to end non-conforming uses without an amortization period.

Just how does one exhaust another person's remedy?

The 2d DCA released an opinion yesterday that's another one that every land use attorney has to read.

Vanderbilt Shores et al v Collier County et al involved several neighboring condo associations who attacked the approval of a new building on the basis that the setbacks were too small. The issue was that the zoning district varies setbacks based on height, and the building was built with a big "step down" - as the 2d described it, the building is shaped like an upside down "T" with low wings and a high tower.

The neighbors won the technical interpretation battle but lost the war (so far). The court held that given the definitions of setback and yard, the lower wings encroached the setbacks required for the tall part of the building (read the opinion, Judge Northcutt does a good job of explaining). It rejected the County and the developer's argument that the County had discretion to interpret the setback requirement so as to allow the lower wing to have a less setback than the upper based on the clear language of the ordinance.

BUT

The court then went on to uphold the circuit court determination that the case should be dismissed for failure to exhaust administrative remedies. It held that the neighbors should have used two provisions of the zoning code; one that allows anyone to get an interpretation of the ordinance from the zoning official and then appeal it up - OK, maybe. But the court also held that the neighbors should have availed themselves of the provision in the code enforcement section that provides for complaints about violations.

I went and read the Collier Code (thanks again, Municode online!) on this. The Collier Code does allow anyone to ask for an interpretation and allows anyone to report a violation of the Code. It even is more liberal than some in its language in that it gives the County manager the authority to investigate ANY violation of the Zoning Code (not just a building already built) and stop it in various ways. And, like many or most LDR's these days, it allows the County Manager (or designee) a wide range of corrective actions, from injunction to criminal prosecution or the use of the Code Enforcement Board.

The problem may be jumping out at you -- while the code allows 3d parties to complain to the County Manager to try to get enforcement proceedings instigated, it doesn't give them any right to instigate action with the Code Enforcement Board or any other entity. The County Manager or County has complete discretion in whether it acts in any way on a complaint. So the actual remedy for a discovered violation belongs to the County, not to the aggrieved third party.

So, I don't know exactly how or why a neighbor should be forced to exhaust an enforcement mechanism that in no way allows the neighbor to directly instigate action or to be a party to any action that is taken after the complaint. So there's no administrative remedy available to the neighbor there. And my recollection of the exhaustion doctrine (which could be faulty) is that you only have to exhaust procedures that can provide a meaningful or complete remedy. Somebody out there - tell me if I'm wrong - are there cases out there that hold that you have to exhaust remedies that only allow a 3d party to act for you?

What's distressing about this as well is the prospect that in order to take any complaint about a facial violation of a zoning code (which under Florida law is a public nuisance, remember) to court, you'll first have to go to code enforcement, and if they don't think you're right, go to the zoning administrator, appeal to the BZA, go back to code enforcement or the County manager and then appeal or attack the manager's decision regarding whether or not to act. Not a good case for neighbors.

OK, so I'll renew another call I made a long time ago: in addition to a "local government APA" with rules for review, etc., we need a LUBA (land use board of appeals) - maybe a special division of the 1st DCA - to hear these appeals.

Happy April 15th!

FAPA - Bill Tracking Reports

Here's a link to the Florida Chapter of the American Planning Association's (FAPA) Bill Tracking Reports. It's useful for anyone who is interested in following the progress of any of these bills but who doesn't get the info automatically.

Another GM Bill - I don't understand this one at all

Running through the Senate - with a House bill accompanying it - is this (CS/CS SB 0162) that would "vest" development orders whose time for appeal/attack had run if the LDR that the DO was issued under was later found invalid.

I can't think of many situations in which a DO issued under the color of a valid LDR would later be rescinded because the LDR was found to be void (or voidable?).

Here's the language:
(13)(a) If a local government grants a development
18 order pursuant to its adopted land development regulations and
19 the order is not the subject of a pending appeal and the
20 timeframe for filing an appeal has expired, the development
21 order may not be invalidated by a subsequent judicial
22 determination that such land development regulations, or any
23 portion thereof that is relevant to the development order, are
24 invalid because of a deficiency in the approval standards.
25 (b) This subsection does not preclude or affect the
26 timely institution of any other remedy available at law or
27 equity, including a common law writ of certiorari proceeding
28 pursuant to Rule 9.190, Florida Rules of Appellate Procedure,
29 or an original proceeding pursuant to s. 163.3215, as
30 applicable.

The bill then goes on to make this retroactive to January 1, 2002.

I can only think that "deficiency in the approval standards" means that the LDR is void for vagueness and that this is some kind of fix for the situation that some of the amicus in Omnipoint complained of - that the questions the 3d DCA created regarding the validity of Dade County's non-use variance standards were dramatically affecting the ability for projects to go forward. Here's one of the Omnipoint briefs.

If anyone out there has other insight into the problem or situation that this bill is trying to solve, I'd love to hear about it.