3d DCA - Trial Court Must Issue Injunction against Farm Parties

In Miami-Dade County v. Fernandez, here's the link, the 3d DCA overturned a trial court's refusal to grant a preliminary injunction against a landowner in a rural, agricultural zoned property who had been hosting children's parties that included horseback rides.

The County, after complaints, determined that having parties that involved the use of agricultural animals in an agricultural district was a "commercial party" use not permitted under the agricultural zoning and requiring an unusual use.

But when a circuit court rejected a hearing officer's determination that the landowner was in violation of the zoning code for engaging in an activity not permitted by the zoning district as not supported by competent substantial evidence (we don't know about the legal conclusion), the County instead went straight back to the court with a suit for injunction under a different provision of the Code (that requires a permit for a "new use"). The trial court refused to grant a preliminary injunction while the landowners attempted to get the use permit.

The 3d reversed, noting that when the government alleges illegal conduct, it does not have to prove irreparable harm. It also found that the earlier action against the landowners did not bind the County based on collateral estoppel or res judicata because the injunction action was brought for a violation of the different section of the Code.

BUT let's look at what really happened: the County alleged that the landowners were engaged in a use not permitted by the Zoning Code, and this was rejected by the court. The County then sued for injunction because they didn't have an "Occupational Use Permit" - which the County was refusing to grant them because the County felt that the action wasn't permitted - the position that was rejected in the other action. And the 3d demanded that the court issue the injunction, even though it is clearly arguable that the County's failure (or refusal) to grant the use permit is a violation of the law of the case in the earlier action.

In short, the County is making these folks jump through hoops in multiple venues to deny them a use that it seems that a circuit court determined was permissible.

Good power to have if the issue is a real matter of public health, safety and welfare. But to ban giving rides and parties on agriculturally zoned property?

An Insanely Bad Decision from the 11th

On April 11 (sorry, I'm a bit behind), the 11th Circuit issued this opinion in Lewis et al v. Brown, --- F.3d ----, 2005 WL 1159155 . The court not only wrongly (IMHO) applied McKinney v. Pate to hold that land use decisions aren't protected by substantive due process, it actually held that the federal courts could (and clearly would) make their own determinations of whether a state actor's decision was executive as opposed to legislative, regardless of state treatment of the decision.

The case involved the denial of a rezoning. The plaintiffs claimed that the denial violated their substantive due process rights as it was arbitrary and capricious because the requested zoning was consistent with the local comprehensive plan. In its apparent determination to get out of its constitutionally and statutorily mandated role as protectors of civil rights, the court made two convenient but serious errors in law.

First, the court distorted not one, but two doctrines to claim that substantive due process isn't available to executive decisions regarding land use regulation. It first cited McKinney v. Pate and Palko v Connecticut for the true proposition that due process protects fundamental rights, those implicit in a concept of ordered liberty. Of course, that doctrine applies to the determination of when due process applies to the deprivation of LIBERTY, not property.

It then went on to cite the post-Roth "new property" cases - particularly McKinney - for the proposition that due process does not protect "state created rights" but only those created by the constitution, and cites an earlier 11th Circuit case for the proposition that "land use rights like zoning restrictions" fall into that category. So the court basically lumps the right to use and enjoy property - guaranteed by most state constitutions (definitely Florida's) and implied by the Federal Constitution - in with "creature of statute" interests like welfare.

BOSH AND DOUBLE BOSH. Under common law, the right to put land to any lawful use was an essential component of the property right in land. This has been repeatedly and historically held to mean that that any restriction on the right to use land was subject to due process review. That is, one could be "deprived" of the right to use property in a particular way by a regulation, but that due process attached to the regulation AND ITS ADMINISTRATION. Any other view holds that the decision to regulate a use of land removes it from the set of rights in property as opposed to merely regulating it - and I know of no decision that has made that determination and several that hold against it (see Moorman v. DCA, for example).

The critical distinction between due process and takings has been that in determining whether a regulatory taking had occurred, the "whole property" was examined (both in scope and set of uses), but for due process analysis, every limitation on an historic right in land was a "deprivation" subject to due process review. So the rights in land that are regulated by zoning and other land use regulations are "rights" and "property," (not "mere expectancies" or "state created interests") and insofar as the regulation denies or limits them, it must do so subject to due process review, both substantive and procedural.

And the idea that "zoning rights" or "land use" rights are state-created (in the Roth sense) is simply ludicrous. Property rights in land were constitutionally recognized for federal purposes both in the Fifth Amendment and in the Fourteenth. Even if the boundaries of those rights (nuisance law, for example) may be altered by the state, the core CONSTITUTIONAL right to own and use property is one that has always been recognized in real property and even in personal property.

So, the courts completely miss the proper analysis when they look at a permit or other regulatory action and don't look behind it to whether there is an historic right being regulated (deprived). At its root, the post-Roth "new property" cases simply should not be applied when a common law and constitutionally recognized right is being regulated.

This argument obviously needs all the requisite cites and niceties to become a nice Bar Journal or Law Review piece, but it's the consistent representation of our legal history. What's not consistent is the federal courts' activist hostility to protecting our civil rights in property.

Which leads us to the other gross distortion. The court applied the so-called "functional analysis," which looks at the scope of application of a decision, to hold that any land use decision that affects only a single person (or limited group of persons) is executive in nature and therefore falls into the McKinney v. Pate trap. OK folks, the federal court held that for federal analysis, it can declare any land use decision executive on its own, without any resort to state-law analysis. Talk about an activist judiciary!

Under the McKinney analysis, a person subject to an executive decision only gets the procedural due process rights provided by the statute or rule that authorizes the decision. It was designed for use in employment benefits and welfare cases, where the "entitlement" (i.e., the property interest created by the statute) is tied to the processes that create and protect it. Here, there are only the state enabling laws that authorize local governments to regulate land (Georgia's, in this case). So where do the procedural rights come from? I guess the court doesn't care, it didn't bother to point to any source of them.

Bad opinion. Bad precedent, bad analysis, and bad for civil rights. I hope this gets appealed en banc and I hope this gets taken up to the Supremes.

US Supremes Clarify Takings Rules by Limiting Agins' "Substantial Relationship" Test

The US Supreme Court issued its opinion in the first of the three takings cases it will rule on this term. In Lingle v. Chevron, the court was faced with the issue of whether the "substantially advances a legitimate state interest" test, articulated in Agins v City of Tiburon, and repeated in Nollan, Dolan, and more recently in Monterey v. Del Monte Dunes.

In doing so, Justice O'Connor, writing for a unanimous court, seems to have taken a stab at clarifying and categorizing takings law going forward. In this case, the "substantially advances" test had been used to strike down a Hawaiian statute that imposed rent controls on oil-company owned gas stations, because Chevron demonstrated to the satisfaction of the trial judge that the provision did not advance the state's interest in controlling consumer oil prices, and therefore was a taking. The court pretty much rejected the proposition out of hand (calling it "not only doctrinally untenable as a takings test [but also that] its application as such would also present serious practical difficulties."), but only after taking some time to clarify why the analysis here was a substantive due process analysis misplaced into takings claims.

This ruling was somewhat expected, but I think the big news is Justice O'Connor's related analyses. Unsurprisingly, there are three kinds of regulatory takings, and a special case. The first, and most general, is the Penn Central balancing test. The second is the Loretto style invasion, which is a categorical taking. And the third, of course, is the categorical Lucas taking when a regulation takes all economically beneficial use of the property. These three inquiries (as Justice O'Connor called them) "share a common touchstone. Each aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly expropriates private property or ousts the owner from his domain. Accordingly, each of these tests focuses on the severity of the burden that government imposes upon private property rights."

Three kinds? What about Nollan and Dolan?

In Part III of the opinion, Justice O'Connor takes some pain to clarify Nolan and Dolan, but in doing so raises many questions. These cases, she reasons, "involved Fifth Amendment takings challenges to adjudicative land-use exactions - specifically, government demands that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a building permit." She notes that in both cases, the expropriation of the easement would have been a taking, but goes on to not that Dolan held that "an adjudicative exaction requiring dedication of private property must also be 'roughly proportional' . . . both in nature and extent to the impact of the proposed development." [sorry about the depth-of-quote there - everyone should read this on their own anyway.] She then ties them both back to the unconstitutional conditions theory, characterizing the "problem" as the government's demand that they give up their right to be compensated for the taking of the property in exchange for a "discretionary benefit." [I somehow doubt that her choice to modify the term "exaction" twice with the term "adjudicative" was accidental.]

This leaves us in a pickle as to whether Nollan and Dolan apply a) to ordinances or statutes that set forth exaction requirements and levels (i.e., what makes an exaction adjudicative and when would legislative exactions be covered) or b) when money rather than easements, dedications or other transfers of real property interests are involved. It could be argued that by focusing on the unconstitutional condition aspect, she actually has opened the door wider to argue this in other contexts, but it also could be argued that impact fees have been pulled out of the protection of the takings clause.

What we have here is (perhaps finally) a takings case that will help law professors and land use lawyers alike categorize the substantive takings approaches and when they should be used. By purging the tempting but problematic "substantially advances" test and putting Dolan and Nollan off into the "unconstitutional conditions" corner (rather than being another form of takings analyis), Justice O'Connor has provided some clarity to a longstanding analytical quagmire.

Let's see if the court provides similar procedural simplification when it tackles the San Remo Hotel case.

A Number of Bills Pass Volume 1

In addition to the core growth management bill, a number of growth-related bills passed and will soon be on their way to the Governor. They include:

Waterfront Property HB 955 - would require local government to include provisions in the land use element to protect existing commercial and working waterfront properties.

Wind Protection - HB 835 - provides more guidance on wind protection in the building codes, still exempts the Panhandle except for beaches from more strict provisions of code.

Small Cities Community Development - HB 901 - allows DCA to include "project planning" as a category in which communities can compete for Block Grant funds.

Campus Master Planning - HB 517 - After a really bad start, which would effectively have gutted any ability of anyone to enforce the requirements of the statute and allowed Universities to put anything they want anywhere they want, it looks like this ended up being a really good bill that cleans up the process and allows a proper hearing and a DCA (rather than administration commission) Final Order.

I have to confess special interest in this bill, since I was the first person to actually appeal a final order of the Administration Commission under the old regime - which was simply unworkable. If the procedures in the new bill had been in place when my clients started the process in the case in which I was involved, the ultimate result would have been different, especially on the ground, where it matters most.

Yet another reason why developers don't want to provide affordable housing

The 4th DCA released this opinion on April 20th, holding that, despite a binding agreement to rent 75% of the apartments to low or very low income tenants, the non-profit landowner could only receive available tax exemptions for those units that were actually occupied by low income tenants on January 1 of the tax year. That is, any units that were vacant and between low income tenants would be taxed as though they were market rate units even if the unit had been occupied by a qualified tenant in the past and the landowner was obligated to rent it to a lower income tenant in the future.

There was no allegation that the apartment complex was not meeting its obligation, only that there were some vacancies.

While the court went through some understandable gyrations given the language of the statute, agreement and relevant principles, ultimately the court relied on the doctrine of "strict application" of tax exemptions rather than on the requirement that interpretations follow legislative intent. The extreme result is that instead of the non-profit owner of these units being exempt for taxes on 75% of the units, the owner is subject to property tax liability for any units not so rented.

You can see the result coming: landlords won't sign leases for affordable units that don't provide a requirement for occupancy on January 1. Then the appraisers' will attack that and demand some "proof" that someone was actually there. It's just foolish, and this decision, while intellectually consistent, simply creates absurd results that would not have been contemplated by the Legislature.

Supremes Give with One Hand and Take with the Other - or Why Citrus Canker Litigation Will Be Back Again

The latest round of the citrus canker wars was unresolved by the Florida Supreme Court on April 14 when it issued this opinion. The Supremes overturned the 3d DCA's opinion, which basically held that because the Legislature had determined that all trees within a 1900 foot radius of an infected tree should be considered infected, those trees had no value and no taking resulted from their destruction.

But the court did not reverse the portion of the lower court ruling that held that the aggrieved landowners did not have an inverse condemnation claim.

Instead the court ruled that a deeply flawed and subject-to-funding statutory provision for compensating homeowners reached back to provide an avenue for compensation. It also interpreted the statute to provide greater-than-statutory compensation where a judge determined the value of taken trees.

But it did not hold that the statute had to provide full and fair compensation - which under Florida's constitution means that if your property is taken, your attorney's fees (and experts) get covered. That flat out means that the majority opinion is internally contradictory, holding that the trees weren't "of no value" (and therefore were taken), but not providing the constitutionally mandated remedies for takings - full compensation, including attorneys' fees.

Pariente concurred and claimed that this statute met the Haire test that required "just and fair" compensation. She also claimed that the homeowners were better off with a statutory remedy than constitutional inverse condemnation because they wouldn't have to prove a taking against nuisance and "imminent danger" defenses. Essentially, Pariente is saying that if the Legislature confesses a taking and doesn't make you litigate the entire case (but does make you litigate your damages), it can dispense with the need to provide attorney's fees - even if the result is that you'd have to spend more in attorney's fees than you'd get in damages.

Lewis concurred in the result only, and would have held that the landowners had a constitutional inverse condemnation claim. He's on the right side here, but not speaking out strongly enough.

Quince dissented, claiming that the majority twisted the statute to provide relief that wasn't there and that wasn't constitutionally acceptable. She would have allowed an inverse condemnation claim. She didn't mention fees directly, but clearly is disturbed by the way tha the majority is allowing a limited statutory right to displace a more complete constitutional right.

We're going to see this come back, for two reasons. One, there's no obligation under the statute to fund the awards, so a bunch of people may get judgments that they can't collect. If this is a taking, then that's not acceptable. Two, there's no statutory provision for attorneys fees in this case. Courts are going to deny them, and the whole issue will wend its way back to the Supreme Court to resolve the resulting constitutional issue.

The entire mess is like the nasty 1983/1988 decisions that hold that you can't get attorney's fees in those cases where the damages are just nominal. Essentially the courts have been holding that if a violation of your rights is worth less than the cost to fight for them, you don't get your attorney's fees. In other words, the government can violate your rights all it wants to as long as the damages aren't above the cost of the fees to object.

When do administrative appeals not provided by general law go to the District Court?

When the administrative agency not covered by the APA is a state agency rather than a local government or local administrative agency.

So held the 5th DCA in this opinion, in which it had to tussle through the various constitutional and rule provisions governing the review of administrative actions to come to a conclusion. I think they reached the right conclusion, but the fact that there's not statutory guidance on this issue is simply ridiculous.

The real conclusion: the Legislature should do its duty to proscribe by statute the authority of the different courts to hear APPEALs from administrative decisions. Basically we need a backup to Chapter 120 to cover all of those situations not covered by it - like local governments and boards, and state agencies that manage to get exemptions from the APA.

A Quick Primer on 11th Amendment and Why sheriffs (and counties) Aren't Immune from 1983 Suits in Federal Court

Ok, off base a bit, but anyone who litigates land use cases against local governments is always wondering about when a section 1983 based civil rights lawsuit might be feasible.

The 11th amendment (well, a very old and very bad US Supreme Court case interpreting it) bars citizens from suing their states in federal court. But certain agencies of the state do not benefit from that "immunity" (you can still raise the federal claims in state court).

This opinion from the 11th Circuit does a good job of laying out the history and function of the rule and how to apply it to sheriffs (the result: in most functions Florida sheriffs do not benefit from 11th amendment protections). It also has a straightforward suitable statement that counties aren't immune as they are treated like municipalities.

5th DCA - Dec Actions Provide Sufficient Guarantee of "Prompt Judicial Decisions" in 1st Amendment cases [updated]

I don't think I wrote about the US Supreme Court's decision in the Littleton case last year - here's the link - which involved a challenge to the sufficiency of the judicial review available to a first amendment-implicated licensing decision. Earlier cases had indicated the need for prompt judicial review and decision (in different opinions); Littleton argued that there was no need to guarantee a prompt judicial decision and that Colorado law was adequate to provide it anyway.

The court rejected the first position, holding that a prompt judicial decision is a critical element in a valid regulatory scheme that implicates First Amendment values. It then went on to hold that Colorodo's would meet that - laying out a bunch of language, but basically saying that you can expedite and hear these cases quickly under the rules, and judges know these need to be expedited, so we're not going to disturb this on a facial challenge, but deal with it on a "case by case" basis.

MOREOVER, the Littleton ordinance provided an administrative procedure for the issuance of a license that allowed appeal to the appellate court - rather than a de novo action. So the review here was appellate - failure to provide sufficiently prompt judicial review would be evaluated on a case-by-case basis.

What they were REALLY saying (and its in one of the lines) is that states (or local governments, who can't in Florida) don't need to adopt special statutes for guaranteeing prompt judicial review in order to have valid local zoning regulations that implicate First Amendment values. They were leaving it open to what would happen if the system failed. Presumably, because we're talking about appellate review, the failure of the courts to respond appropriately would be subject to its own decision rule - the court, rather than the local government, would be violating the 1st Amendment/due process by failing to act expeditiously on a petition.

In the process, the Supremes over-ruled our own 11th Circuit, which had held (in yet another Cassleberry case) that the First Amendment only required prompt access to courts, not a prompt decision. The Court clearly rejected that line - so if a 1st amendment licensing case arrives before a judge, there is a FUNDAMENTAL right to a rapid decision so that a license that has been inappropriately denied (or where the ordinance is invalid), there is rapid remedy.

WHICH leads us to this opinion issued March 24 by the 5th DCA (I've got to start reading more of the criminal appeal cases -tx to Matt Conigliario at Abstract Appeal for seeing this one). It upholds a challenge to Orange County's adult bookstore licensing ordinance based on vagueness and inadequacy of review.

First, the Court held that the provisions defining an adult bookstore regulated under the Ordinance were not unconstitutionally vague. So the Appellant could be prosecuted for selling adult material without the proper license if the rest of the ordinance were valid.

Here's the kicker: the Orange County Code has the Tax Collector make the decision with no avenue for a full administrative hearing or de novo administrative appeal (whether the Commission has authority over the constitutionally independant Tax Collector is another interesting issue that wasn't raised). Instead, another provision "allows" (remember, local governments have NO authority to grant or modify judicial jurisdiction) an applicant who is denied a permit "to immediately file appropriate pleadings." Hence - the majority and dissent find correctly (yeah, we're getting somewhere) that certiorari review is NOT available to speed a denial into the courts.

The 5th then held (over a lucid dissent) that the availability of a declaratory action under Chapter 86 is good enough to provide "prompt judicial review." It cites all the parts of the Littleton opinion that talk about how judges will be good and discusses none of the issues associated with having to try a denial denovo. The problems with getting effective declaratory review in a prompt manner was simply glossed over by the majority - though laid out well by the dissent.

The majority doesn't deal with the problem that a $30,000 license fee would be unconstitutional, but forcing an applicant to pay that much to try a de novo action against the County to get the same license appears OK. Nor does it deal with the issue that nothing in the Rules today compels a circuit judge to grant motions to expedite, etc. And given the clear distinction (appellate review vs de novo attack) between the Littleton ordinance and the Orange County ordinance, I'm not sure that the 5th isn't asking for reversal.

But here's another interesting issue: the court did not address whether mandamus would be available and under what circumstances.

Here's the section on denial of permits:

1) The tax collector shall review the findings reported by the departments and deny the application for any of the following reasons:
a. The application is incomplete or contains incorrect or false information;
b. The applicant has failed to comply with the filing requirements of F.S. ch. 607, regarding corporations, the filing requirements of F.S. ch. 620, regarding partnerships, or the requirements of F.S. § 865.09, regarding doing business under a fictitious name;
c. A license issued under this chapter for the location of the proposed establishment is the subject of a pending suspension proceeding or is under suspension;
d. A license issued under this chapter for the location of the proposed establishment is the subject of a pending revocation proceeding;
e. The granting of the application would violate a statute, ordinance, or an order from a court of law that prohibits the applicant from obtaining an adult entertainment establishment license or operating an adult entertainment establishment
(2) If the tax collector denies the application, the tax collector shall, within seven (7) days, notify the applicant of the denial by certified mail, return receipt requested, and state the reason(s) for the denial.

It looks to me like the Tax Collector has to grant the permit unless one of these reasons to deny it exists. It also looks to me like these are pretty clear cut, non-discretionary types of determinations, and if a denied applicant could show through affadavits and collateral information that none of these bases for denial were present, the Collector would be required to issue the permit. OTOH, if the Collector disputed one of the facts, there's a line of cases that provides that mandamus would not be available - back to a dec action / injunction instead.

So here's another case where the appellate courts are essentially kowtowing to possible constitutional defective and abusive local ordinances.

11th Circuit Bounces Billboard Challenges in 2 Cases

The 11th Circuit las week bounced two different cases filed by National Advertising against an the City of Miami's billboard ordinance (well, it's old ordinance). One was a facial challenge to the ordinance, the other a denial of permits under it.

Here are the links:
http://www.ca11.uscourts.gov/opinions/ops/200315593.pdf

http://www.ca11.uscourts.gov/opinions/ops/200315516.pdf

In the first case, the 11th held that when the City amended the ordinance, it made the case moot, and the District Court was right to dismiss it.

Sounds simple? Think about this: the City had adopted and maintained an ordinance that National claimed was unconstitutional. The City didn't change it until after the company filed its federal lawsuit. We don't know what damages were alleged (or not alleged) to have occured due to the presumably illegal ordinance. But if National had been allowed to proceed, it would have been entitled to damages under section 1983 and -- more importantly -- attorney's fees under sction 1988. So what this decision actually is doing is taking another swipe at the civil rights of individuals and companies by limiting their ability to pay for attacks on illegal ordinances. The local government adopts something patently illegal, says "you don't like it, sue," and only changes it if someone spends thousands or tens of thousands of dollars to initiate a lawsuit - and then walks away scott free from its illegal act.

In the second case, the 11th dismissed as unripe National's attack on the City's denial of permits for new signs because it had not recieved a written decision.

OK, so the guy at the desk rejects the permit application (here, there may have been non-speech related reasons - height - for denying the permits, but . .. ) apparently based on height, but also told them that they weren't permitted in the C-1 zone district. National goes right into court on the denials as "as applied" attacks on the grounds that the City denied the permits because it doesn't allow billboards in the C-1 district. District Court granted summary judgment for City based on the ripeness issue.

OK, so on one hand, it does look like National should at least have fixed the height problem and filed a new permit to get a denial clearly based on whether the zone district allowed it (which went to an exclusion and process issue under 1st amendment law). But suppose the clerks had denied them, or refused to accept them, for some other reason?

The real issue here is that local governments in enforcing improper or illegal restrictions will try to hide behind pretextually valid reasons for the illegal action - and in such cases the action is legal. But the other problem lurking here is the one where the agency refuses to actually deny a permit because it knows that the denial will be illegal, and tells you that it won't issue the permit.

Under this case, you MUST go through at least some administrative attack on the refusal to issue or deny the permit to get a denial in writing. So before you can even mount your civil rights attack on an illegal ordinance or interpretation, you probably have to spend thousands of dollars on bringing the issue to the Board of Zoning Appeals (or whoever), then maybe even to a cert challenge of that before the local determination will be final enough to challenge the underlying ordinance as unconstitutional.

My suggestion - file a dec/injunction action in state court along with the cert appeal. You can bring your 1983 claims at the same time and not spend years of litigation getting these issues right.

SO - practice pointers for those of us who have to litigate against potentially unconstitutional local ordinances:

1) Plead damages, not just illegality - if you can claim damage during the enforcement period, you MIGHT avoid the mootness problem that bounced National (we don't know from the opinion if damages were pled).
2) Do it in state court – you can get all of your claims into court at once and may be able to simply abate some counts if they will rely on others
3) Give yourself some other bases for going forward.
4) Exhaust remedies!


(thanks to Larry Sellers for passing these along).

Another Key US Supreme Court Case - Lingle v Chevron - Will the Court Strike Back at Unfair Burdens?

While the Kelo case got nationwide attention and coverage (see post from earlier in the month), another case argued the same day got no attention and is far more important to land use issues.

Lingle v Chevron puts the "Agins" test squarely before the Court to determine whether it really means that the "substantial relation to a legitimate state interest" is a seperate takings test with seperate compensation requirements rather than some kind of bastard child of due process. The briefs can be read here.

The not-too-widely-discussed Del Monte Dunes case from a few years ago should have alerted everyone to the viability of this issue. That case ultimately turned on the question of whether a denial of a permit (in an administrative context) that was clearly not in fact related to the admittedly legitimate interests supported by the legislation and standards applied would create a taking - and the answer was yes at the District, Circuit and Supreme Court level. But that case had really eggregious facts - it was clear from the record that the local government was denying any application in order to preserve the property and perhaps to depress the value so that it could be bought. Those are not legitimate reasons for applying the legitimate environmental protection standards contained in the ordinance that the City was applying. Del Monte Dunes therefore stands for the proposition that where a local government inappropriately applies valid standards to deny development, and significant economic loss results, the "Agins" test means that there is a taking. That is, Nollan's application of Agins does not apply only to improper demands for "property" (easements or other exactions), but also to the destruction of property through permit denials. Two things were left unanswered - whether this applies to cases of less permanent and less total takings (here there was good evidence that the City wouldn't ever let them build ANYTHING), and whether the Agins test applies to legislative as well as administrative determinations.

In Lingle, the issue turns to legislation - and whether an Hawaiian act that limits the amount of rent that can be charged can create a taking if the "rent control" provision does not serve the intended and stated purpose of the legilsation. The question here is rent control applied to filling stations owned by gasoline wholesalers, supposedly to prevent certain kinds of predatory consumer pricing that too much vertical integration would allow. Chevron put on evidence that the statute would provide no impact on the legitimate stated interest of consumer protection from , and that it only shifted economic burdens as between Chevron and its lessees (to Chevron's detriment). The trial court found a taking as to the burden on Chevron from this scheme.

The briefs are predictable: Chevron stating that this is a long-considered aspect of the takings clause, articulating the "unfair burden" values that are part of the Penn Central balancing test (also articulated in Florida in the Estuary Properties case). This question examines whether the regulation unfairly puts public burdens on a private entity (say, providing public open space or parks - or in the case of Nollan, additional lateral beach access). Hawaii - and the APA and other entities - claim the end of the world and a return to Lochner-era substantive due process analysis if the claims are permitted. Interestingly, the US DoJ filed an amicus brief supporting Hawaii (here's the link to that).

I have no idea how this one is going to turn out, but I hope to see a serious shot across the bows of knee-jerk, grandstanding over-regulation. Since the federal courts have (inappropriately) made it much harder to bring section 1983 claims for the arbitrary denial of development permits and for arbitrary standards in ordinances, many, many local governments and agencies have been on an arrogant rampage of inappropriate and unfair regulation and regulatory actions - taking the "so sue me" response because they don't have anything to lose. ONLY the return of the threat of serious damages and attorney's fees will cause Commissioners to think twice and take their oath to uphold the constitution seriously - and their attorneys to be much more careful about what they "let" their Commissions do.

The better local government lawyers I know still worry about the constitutionality of their clients' actions and work hard to prevent them from adopting vague or illegal ordinances or taking arbitrary regulatory actions. But way, way too many take the view that their job is to defend the discretion of the Commission no matter what, and not to get in the way of them doing whatever it is that they want to do at the moment.

Also in front of the US S Ct - Ripeness/Res Judicata in Takings

On March 28, the US Supreme Court will hear argument in the San Remo Hotel case. Here are links to the briefs.

The underlying conflict here involves San Francisco's draconian anti-conversion laws, which require huge payments to the City if hotel owners convert their units to condominium or similar uses. Intended to preserve affordable housing in the city, the laws are hugely punitive to anyone who owns property that was used in "single room occupancy" (SRO) long term uses.

This case involves the interplay of ripeness and federal issue preclusion in takings cases. Under the "Williamson County" rule, a state action that creates a taking doesn't violate the federal constitution unless the state refuses to compensate for the taking - which requires presenting the case to the state courts. Other doctrines deal with how you reserve the right to litigate a federal claim in federal court when the same transaction might produce state claims.

The issue here is whether the state courts litigated not only the state's interpretation of the state's taking law (and the availability of compensation), but also the federal issues at the same time. The Ninth Circuit bounced the case, which is now before the Supreme Court on the question.

The problem here is somewhat obscure - ultimately it turns on how do you present a takings case to a federal court so that the federal courts can determine a) the scope of takings protection under the 5th amendment as to new issues, theories or fact patterns; and b) whether federal takings protection exceeds that provided by any particular state. Historically, these core federal questions would be litigated in federal court rather than in state court - it's only because a state court must reject the substantive claim and/or availability of damages to remedy the claim that the taking claims must be presented to a state court. If you can't effectively reserve your federal claims to litigate them in federal court, then the state courts (rather than federal courts) will get to determine what the US Constitution means.

But the federal courts have allowed state courts to develop the scope of the federal constitution in other areas - if San Remo loses here, it will indicate that the future of the takings clause protections will largely be determined by litigating federal questions in state court, with the first contact between the issues and the federal courts being when a state court decision is taken up in a petition for certiorari to the US Supreme Court.

Fla Supremes Strike "Hometown Democracy" Amendment - Ballot Summary Misleading

In a victory for anyone who actually cares about the process and contents of planning, but a close call on representative democracy and "ballot summary" writing, the Supremes bounced the Hometown Democracy Amendment in this opinion .

By a slim 4-3 majority, they found that the first line of the ballot summary - "Public participation in local government comprehensive land use planning benefits Florida’s natural resources, scenic beauty and citizens" - was misleading because comprehensive plans involve much more than these values. All 7 justices found that the amendment meets the single subject requirements.

Three justices, Quince, Lewis and Anstead, dissented from the determination that the ballot summary was misleading. Lewis wrote one dissent, that Anstead joined, and Quince wrote another, that Lewis and Anstead joined. The dissenters found the ballot summary no more misleading than others that had been approved :) and would have let the voters decide.

While I have some serious qualms about the reasoning, I have to admit relief that this won't go before the voters, as it would have resulted in the complete gutting of growth management. The sponsors seems to completely miss that if the planning process turns into a popularity contest (locking Florida into backward looking plans that screw up our ability to handle growth for decades to come), the Legislature could - and I believe would - simply repeal the consistency doctrine. Let the plan say whatever, and simply disconnect zoning and land use from it again.

Deference stops at the silly

Agencies - local government or state - just can't seem to stop themselves from reading statutes, ordinances and rules the way they wish they were written, as opposed to how they are in fact written. In this opinion, the 5th DCA reminds us (once again, into the breach, dear friends) that
a court is not required to defer to a construction that is unreasonable or is clearly erroneous - and provides some good cites on agency intepretations that fly in the face of the plain meaning of the statute and statutes that are written with unambigous text. A good one to keep in your arsenal.

RL