A Search and Seizure Opinion (Relevant to Land Use) So Bad It's Terrifying - and Ethical Limits Prevent Me From Saying What I Really Think

As an attorney, I have an ethical obligation not to disparage courts or judges in a manner that is prejudicial to the administration of justice. That obligation doesn't prevent me from criticizing bad opinions, but does require me to avoid overheated rhetoric.

This opinion from the 4th DCA, in Vaughn v. Dep't of Agriculture et al, tests my self-control. The 4th upheld a trial court's dismissal of s.1983 damage claims against individual inspectors of the Dep't of Agriculture and a Broward County Deputy Sheriff. The inspectors invaded Vaughn's property without a warrant and had him arrested for demanding one. They tore down sections of Vaughn's fence and gate, cut down and ground his citrus trees, and had him arrested for objecting to this. The Deputy handcuffed and arrested Vaughn for insisting that the inspectors needed a warrant to enter his property.

The 4th, INCREDIBLY, (see Judge Farmer's dissent, which got the law right) found the inspectors and deputy entitled to immunity on the basis that the law requiring a warrant to engage in these activities wasn't sufficiently clear to justify maintaining suits against the individuals. The majority basically takes the position that until a specific law, regulation or practice has been specifically found to violate the Fourth Amendment (or presumably any other constitutional right), you can't hold an executive actor personally responsible for violating that right. This is a gross distortion of the underlying doctrine from Harlow v. Fitzgerald, and an even worse interpretation of the relevant 4th Amendment rulings.

Basically, this decision completely destroys any integrity to the Fourth Amendment. Sure, any evidence that the officers got through this invasion would be excluded from a criminal proceeding - creating an institutional incentive not to invade and abuse Fourth Amendment rights. Sure the Department and Sheriff's office are still on the line. But without individual liability and responsibilty, there's no reason for the actual perpetrators of what the court agreed was a constitutional violation to avoid those violations. In other words, watch out - cops, code enforcment officers, anyone with the "color" of authority has free reign to break down your fence, arrest you, and generally abuse you, and you have no action against them personally. Where's the disincentive for these folks to abuse you?

It's also telling that in some 4th amendment cases, the courts have limited the scope of the exclusionary rule, in part based on arguments that personal liability for abuses would provide a deterrant to the bad conduct without the social penalty of allowing a criminal to go free. So the constitution now gets squeeezed from both sides.

The "the law said I could" argument didn't fly at Nuremburg for German sargents who abused the human rights of Jews and others, but apparently it's good enough for American agriculture inspectors and deputies. While invading someone's property and cutting their trees down doesn't in any way rise to the same level of human rights abuse that the Holocaust represents, if these administrative and law enforcement officers don't respect the 4th Amendment, if there isn't a personal sense of limitation and respect for individidual rights on the parts of these individuals, then the constitution is dead.

Read the dissent to get the full flavor of the attitude, behavior and tactics of the "public servants" involved and choose your own adjectives to describe them. Taste and ethics constrain me, because if I described the behavior as I'd like, I'd also end up noting the way that the court has permitted and perhaps even facilitated such behavior, and that might cross the line.

Clearly, in search and siezure as in other violations of our constitutional rights by public officials, we cannot rely on the federal civil rights laws (and the US Constitution and Bill of Rights) to provide adequate protection.

What to do? We need a Florida version of section 1983 that holds state and local agencies and actors liable for violations of the Florida constitution, with sections that make it clear that it is to be interpreted liberally to protect the rights of citizens - not like the cramped readings of s.1983 and the core rights that the federal courts have put on section 1983, basically to avoid hearing the cases.

Improving Growth Managment through Better Procedures, Standards and Judicial Review

Last year, I posted and circulated a suggestion for a set of minimal standards for the conduct and review of quasi-judicial decisions at the local level.

Here's this year's draft.

I've tweaked a few things, including making this part of Chapter 163 instead of Chapter 120 - maybe it'll get better play as a growth management bill.

I've also added a few suggested changes to complement the 2002 legislation which gave landowners/developers standing, over-ruling the Parker case. Biggest tweaks to the substance of Chapter 163: clarify the understanding that the denial of a development order that is consistent with the comprehensive plan is inconsistent with the comprehensive plan - which was the intention but not the reality. I also suggest clarifying that development orders must be consistent only with those elements of the plan that provide clear standards or objective criteria - the general rule in proper delegations, but again difficult to enforce. Finally, I suggest getting rid of the useless administrative challenge to land development regulations and replacing it with a proper de novo action in circuit court.

Please provide comments -- I'll be sending it along to the house GM committee and also to Sen. Mike Bennett.

Open Space Requirements in a PUD are not a Taking, Even When the Plan is Amended to Designate the Property "Preservation"

In Palm Beach Polo v. Village of Wellington, here's the link, the Village had filed a dec action seeking to enforce the terms of a PUD ordinance (originally adopted by the County, pre-incorporation) and the developer counterclaimed under a takings and Bert Harris theory for placing a portion of the property designated for conservation in the PUD as "Preservation" in the FLUM.

Upshot: Village 2, Polo 0. The trial court found, and the 4th DCA affirmed, that the density (and therefore value) of the 120 acre "Big Blue" portion of the property had been transferred to the rest of the development in the PUD ordinance, and that the terms of the PUD were still valid and enforceable. It held that there was ample evidence that development of this area was not an "existing right" for Bert Harris purposes, that the PUD provisions were not unconstitutionally vague, and that because the property overall had been given use - including development rights from the preservation parcel, the fact that the preservation parcel was now "undevelopable" did not create a taking.

For takings types - the "parcel as a whole" looks backward to prior regulatory actions, like the PUD ordinance here. An unsurprising result, but I'm not sure of another Florida precedent on this point.

OK, Local Gov't Attorneys, Repeat After Me: You Can't Lien Homestead Property - Really!

In Pelacanos v. City of Hallendale Beach, here's the opinion, the 4th DCA reminds us that homestead property really is free of liens - even if the homeowner makes a court mad. In that case, homeowners who were subject to code enforcement actions entered a settlement, but kept failing to completely live up to it. The result was various contempt citations and later an order from the court allowing the City to demolish the building and lien it.

The homeowners got the property under contract and asked for a declaration that the property would be sold free of the liens.

The trial court denied them their relief, but the 4th granted it. The City argued that because the homeowners had engaged in "eggregious" conduct in failing to comply with the court orders, the lien was valid (yeah, right). The court found that the property was homestead and therefore protected from the lien for demolition costs, regardless of how frustrated the lower court had been: "While we certainly empathize with the trial court's frustration with the appellants’ noncompliance, it is not our province to judicially create another exception to the plain and unambiguous language of article X, section 4. "

Standing to Challenge Under s 163.3215 -

In this interesting standing case, also called Payne v. Miami (here's the opinion), the court determined that neighbors and others who used the port of miami (a privately held group of properties, but subject to special policies in the comprehensive plan), had standing to challenge a development order that would have added residential uses to the marine-oriented area.

The trial court held that the neighbors had standing but that other port users did not. The majority held that these users were "aggreived" under the statute because they had business interests that were protected by the plan policies in question.

Moral: as with Renard/Rinker type common law standing, look to the plan policies that are involved to determine whether an interest is created and affected for "aggreived" status.

When Does a Small-Scale Plan Amendment Become Effective?

In an opinion in Payne v Miami (Payne I) that may not matter much outside Miami, Jacksonville, and the handfull of other "strong mayor" cities in Florida, the 3d DCA determined that the 30-day challenge period after the adoption of a small scale plan amendment did not begin after adoption by the City Commission, but after the 10 day period for the mayor to sign or veto an ordinance under the Miami Charter. Here's the opinion.

The decision hinged on the charter language, which provides that the ordinance does not go into effect until signed by the Mayor or 10 days has passed without signature or veto.

Interesting question: would the same logic apply to the City Commission's consideration of a rezoning in a challenge under 163.3215? Rezonings are administrative under Snyder (they're quasi-judicial and therefore administrative per se), but must be adopted by ordinance pursuant to special requirements of section 166 (cities) and 125 (counties). Most cases have held that the challenge must be filed within 30 days of the local commission's action, even if the "development order" of the rezoning isn't "rendered" for the purpose of a certiorari challenge (by filing the signed action with the clerk to the board) until some time later.

Who's Got Discretion? We Got Discretion! How Much Discretion? Too Much Discretion!

The Florida Supreme Court issued an opinion regarding when a "delegation" of powers goes too far that all land use practioners should be aware of.

In Fla. Dep't of State, Div. of Elections v. Martin, here's the link, the court upheld a First District ruling that "section 101.253(2) is an unconstitutional violation of the separation of powers under article II, section 3 because the Legislature has impermissibly delegated to the executive branch absolute, unfettered discretion to determine whether to grant or deny a candidate’s request to withdraw after the forty-second day before an election."

The statute stated that "The Department of State may in its discretion allow such a candidate to withdraw after the 42nd day before an election upon receipt of a written notice, sworn to under oath, that the candidate will not accept the nomination or office for which he or she qualified." The court held that this did not provided adequate guidelines.

This opinion, along with the Florida Supreme Court's decision in the Schiavo case (yes, it turned on improper delegation as much as or more than privacy), reiterates Florida's strong policy agains the delegation of essentially legislative authority to the executive.

The policy behind this is longstanding:

This Court has traditionally applied a “strict separation of powers
doctrine,” State v. Cotton, 769 So. 2d 345, 353 (Fla. 2000), which “encompasses
two fundamental prohibitions.” Chiles v. Children A, B, C, D, E, & F, 589
So. 2d 260, 264 (Fla. 1991). “The first is that no branch may encroach upon the
powers of another. The second is that no branch may delegate to another branch
its constitutionally assigned power.” Id. (citation omitted). In Bush v.
Schiavo, 885 So. 2d 321 (Fla. 2004), cert. denied, 125 S. Ct. 1086 (2005), we
recently addressed this second prohibition and explained:

The Legislature is permitted to transfer subordinate functions “to permit administration of legislative policy by an agency with the expertise and
flexibility to deal with complex and fluid conditions.” Microtel, Inc. v.
Fla. Public Serv. Comm’n, 464 So. 2d 1189, 1191 (Fla. 1985). However,
under article II, section 3 of the constitution the Legislature “may not delegate the power to enact a law or the right to exercise unrestricted discretion in applying the law.” Sims v. State, 754 So. 2d 657, 668 (Fla. 2000). This prohibition, known as the nondelegation doctrine, requires that “fundamental and primary policy decisions . . . be made by members of the legislature who are elected to perform those tasks, and [that the] administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program.” Askew v. Cross Key Waterways, 372 So. 2d 913, 925 (Fla. 1978); see also Avatar Dev. Corp. v. State; 723 So. 2d 199, 202 (Fla. 1998) (citing Askew with approval).

In other words, statutes granting power to the executive branch “must clearly announce adequate standards to guide . . . in the execution of the powers delegated. The statute must so clearly define the power delegated that the [executive] is precluded from acting through whim, showing favoritism, or exercising unbridled discretion.” Lewis v. Bank of Pasco County, 346 So. 2d 53, 55-56 (Fla. 1976). Id. at 332 (alterations in original).

The requirement that the Legislature delineate adequate standards enables courts to perform their constitutional duties. The failure to set forth adequate standards precludes a court from determining whether the executive branch is acting in accord with the Legislature’s intent. See Askew, 372 So. 2d at 918-19 (“When legislation is so lacking in guidelines that neither the agency nor the courts can determine whether the agency is carrying out the intent of the legislature in its conduct, then, in fact, the agency becomes the lawgiver rather than the administrator of the law.”).

In Martin, the issue was that the statute clearly stated that the decision was completely discretionary with the Secretary. In Schiavo, the issue was that the statute did not provide standards to guide the governor in when not to grant a stay, or when to lift one.

In the local government context, the seperation of powers does not constrain a Board in its legislative capacity from delegating itself or its agencies administrative powers. (there's a big section on this in my 1996 article in Stetson Law Review). However, nothing in a local government's home rule powers gives local government bodies sitting in their legislative role the delegated authority to "redelegate" their legislative authority to administrative actors. So, ultimately, the same seperation of powers analysis that applies at the state level should apply at the local level; the difference is that at the state level the prohibition against delegation stems from article II, section 3 of the Florida Constitution, and at the local level, it violates the basic premise that local government have no powers that are not granted to them by the Constitution or laws of the state.

This is interesting, because the standards for "improper delegation of legislative authority to the executive" seem to me to be somewhat more stringent than the traditional tests for an improperly vague ordinance or statute that violates substantive due process. More on that another time.

Development Orders Must Be Consistent with the Comprehensive Plan in Effect on the Date of Rendition of the Order

In Lake Rosa Coalition v. Bd of County Comm'rs of Putnam County, here's the opinion, the 5th DCA held that in a challenge under 163.3215, the relevent comprehensive plan provisions are those in effect on the date that a development order is issued, rather those in effect when the application was made. The court also did a nice job of identifying which orders can be challenged under 163.3215 (or rather, what conditions will warrent relief).

A building permit for additional dormatories for a campground was applied for in November; in early December the building plans were approved, but the building permit was not to be issued pending the resolution of a septic system issue; the permit was not actually granted until April. The land use designation was changed in December, after the plan approval.

The 5th held that it wasn't even close: the use, density and intensity of the buildings allowed by the building permit all were facially inconsistent with the new plan category. There was no "vested right" to proceed under the application (under the facts), and the plan in effect at the time of the issuance, not the application, governed.

Note there apparently is no "savings policy" in the plan to permit development consistent with pre-existing zoning, even if otherwise inconsistent with the land use designation; in fact there is a policy aimed at correcting inconsistent land uses through the control of building permits (that is, if your existing building is consistent with zoning, but not the plan, you can't get a building permit).

The opinion contains a nice section on how the meaning of use, density and intensity for the application of 163.3215 to development orders:

Adverting to the provisions of section 163.3215(1), a challenge to a development may arise under any one of the following three instances: 1) where it materially alters the use of a property; 2) where it materially alters the density of property; or 3) where the intensity of the use of the property is materially altered.
. . .
We believe that the County acted inconsistently with the objectives of the Comprehensive Plan by granting the building permit to the Alliance because the permit allows improvements and additions to the nonconforming use of camp property in clear violation of the Comprehensive Plan’s designation of the property as Rural Residential. For this reason alone, issuance of the building permit was improper. Nevertheless, we will briefly explain why issuance of the permit was improper for the second and third reasons under section 163.3215(1).

The evidence reveals that the additional housing provided by the new dormitory would increase the population density of the camp by 28% and increase the intensity of the use of the structures at the camp. We note that section 163.3177(6)(a), Florida Statutes (2001), requires every comprehensive plan to contain “standards to be followed in the control and distribution of population densities, and building and structure intensities,” with each land use category being defined “in terms of the types of uses included, and specific standards for the density or intensity of use.” Density is distinguished from intensity because the former relates to population while the latter relates to structures. See Florida Wildlife Fed’n v. Collier County, 819 So. 2d 200 (Fla. 1st DCA 2002); see also § 163.3221(4)(a)2., Fla. Stat. (2001) (referencing “[a] change in the intensity of use of land, such as an increase in the number of dwelling units in a structure or on land . . . .”). Thus, a development order that permits an increase in the number or size of structures on land is an alteration of the intensity of the use of the land, and a development order that permits an increase in population is an alteration of density. Here, both density and intensity were materially affected by issuance of the building permit to the Alliance.

So, a development order that changes the permitted uses, densities or intensities from a) what is already permitted, or b) what exists on the ground today, can be challenged under 163.3215 to determine its consistency with the plan. Note that while the opinion doesn't say so, the statute talks to changes, not increases, so a decrease in uses, intensities or densities also might be a material change subject to challenge (especially now that Parker has been legislatively overturned).

And the Moral of the Story Is: File a Facially Valid Permit Application

In St Johns WMD v. Womack, here's the opinion, the 5th DCA overturned a lower court determination that the WMD violated due process in a permit denial and granting damages under section 1983.

The court hated to do it, and appended the lower court opinion (and findings) to demonstrate that it believed that the District had behaved abysmally and probably unconstitutionally in its dealings with Mr. Womack. The problem? After successive (and clearly, from the record, bad faith) notices of intent to deny based on previous filings of plans drawn by his engineer, Womack filed his own plan, let it actually get denied and took that denial to court. While if he had simply taken one of the engineer's plans forward, the denial would have been arbitrary (or presumably so, given the tenor of the opinion), but Womack's own plan didn't have even an arguble claim to meeting the rule/statutory standards.

The record demonstrates that the Chair of the WMD interfered with the staff and the application and that the Friends of the Wekiva were allowed to "unduly influence" the proceedings. In short, the District completely shafted Womack, but gets away with it because he lost his cool and simply didn't file the last, best plan.

As a practic point, what this demonstrates is that the "futility" exception doesn't apply in due process and equal protection cases. You have to make a true good faith filing of an application that meets the objective standards. Then, arguably, you can make a claim that the agency failed to apply whatever discretionary standards are there in good faith.

Check out the dates here - the action started in 1992! Today, the same behaviour would get the District wacked about the head and shoulders with Bert Harris claims - and this is exactly the kind of fact pattern that was used to justify the act.

Formalizing QJ Processes: You Must Object to Preserve Right to Review

The 3d DCA issued this opinion in Clear Channel v. City of North Bay Village, involving a cell tower. Clear Channel lost before the City Commission, and petitioned for cert, which was denied by the trial court based on waiver (really short, useless lower court opinion, which I'll append below). Clear Channel took it up to the 3d DCA which upheld the lower court, finding that Clear Channel's questioning of a witness did not establish and preserve their objection.

Now, it has long been the law that ANY party must raise issues in the hearing in order to preserve them for review. What this case seems to add is that you must use the magic words during the hearing. Here's the relevant paragraph from the opinion:

Appellate review is confined to issues decided adversely to appellantÂ?s position, or issues that were preserved with a sufficiently specific objection below. Ferguson v. State, 417 So. 2d 639, 642 (Fla. 1982)(holding that objections must be made with sufficient specificity to apprise the trial court of the potential error and to preserve the point for appellate review; general objections are insufficient); State v. Barber, 301 So. 2d 7, 9 (Fla. 1974)(holding that Â?[a]n appellate court must confine itself to a review of only those questions which were before the trial court and upon which a ruling adverse to the appealing party was madeÂ?); Leonard v. State, 423 So. 2d 594 (Fla. 3d DCA 1982); Moore v. State, 418 So. 2d 435 (Fla. 3d DCA 1982); Snead v. State, 415 So. 2d 887 (Fla. 5th DCA 1982). The purpose for requiring a contemporaneous objection is to put the trial judge on notice of a possible error, to afford an opportunity to correct the error early in the proceedings, and to prevent a litigant from not challenging an error so that he or she may later use it for tactical advantage. Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182 (Fla. 3d DCA 2005); Crumbley v. State, 876 So. 2d 599 (Fla. 5th DCA 2004); Fincke v. Peeples, 476 So. 2d 1319, 1322 (Fla. 4th DCA 1985). (emphasis added)

Leaving for a moment the problems raised by tabsencense of formal findings to determine whether a decision was or was not effected by an error, this opinion's inclusion of the "contemporaneous objection" language is clearly indicating that a party (or attorney representing a party) in a quasi-judicial proceeding must have and use the opportunity to object to evidentiary or other errors as the proceeding progresses.

Does this extend to objecting that evidence from neighbors is not relevant, is hearsay, or is otherwise incompetent? Probably.

Does this extend to objecting or raising the claim that a denial (which you don't know that you're going to get) would be contrary to prior decisions of the board and therefore a violation of due process or equal protection? Again, I'd say so.

Ok, so how does this work when the hearing is conducted by people coming up to the podium one at a time to speak, with no "table" for the applicant and staff to sit at and comment "contemporaneously?" Basically, you have to continually jump and down from the seats and not only interrupt the witness but also get the attention of the chairperson at the same time.

Where the local rules or ordinances don't provide the means and manner for cross examination, objection and the resolution of issues, you'd also better object to that at the outset as well. The bottom line is that most local quasi-judicial processesess are constitutionally deficient because the processes are not well defined or described in this areas, but the ordinances are a) valid until challenged, and b) as we see here, deficiencies aren't reviewable if you don't object on the record.

BTW - Here's the order below. In neither this nor the DCA decision do we ever get to find out what the error complained of was.

CLEAR CHANNEL COMMUNICATIONS, INC., and FANE LOZMAN, Petitioners, v. CITY OF NORTH BAY VILLAGE, a municipal corporation, and CASA MARINA DEVELOPMENT, LLC, Respondents. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-456AP. L.C. Case No. S630-556-55-243-0. June 15, 2005.

(Before SIEGEL, SCHWARTZ, COHEN, JJ.)

(Per Curiam.) The Petition for Writ of Certiorari is denied. Petitioners failed to preserve the error about which they now complain during the commission hearing. There was no departure from the essential requirements of the law since the record is replete with competent substantial evidence to support the commission's decision.
(SIEGEL, SCHWARTZ and COHEN, JJ. concur.)

Sometimes Ownership Defines Use ???

In this opinion in the case of Saddeh v. Stanton Rowing Foundation, the 1st DCA determined that ownership or control does control use, at least when the use is a park.

City leased property, operated by the Rowing Foundation, for that purpose, with the lease noting the use as a park. Parks are permitted in the zoning district. Neighbors objected, won before the Zoning Board and lost before the circuit court. The circuit court found that the property met the definition of a park.

So the City gets pressured and terminates its lease. Neighbors then sue to establish that the use is illegal and for nuisance damages.

Stanton claims res judicata and circuit court upholds on that basis.

1st DCA: NAH! Overturning the circuit court's determination that the facts of the previous case establish that the use is a park use, the 1st DCA (looking at cases regarding park dedications) determines that as a matter of law, the "park" ceased being a "park" when the City terminated the lease, even though the use didn't change. Why? Apparently it felt that the right of public access to the property was lost, so the park characteristic was lost. It then became more like a private club (not a permitted use in the district), so the determination that it was permitted was lost.

SO - what happens if the landowner simply records a 30 year easement dedicating the property to limited public use and access and puts in picnic tables and a swingset? Clearly, the rowing club had been determined at the very least to be an accessory use to the park in the first litigation . . .

An Interesting Issue about Post-Annexation Regulation - Unresolved

In this opinion styled St. Johns County v. City of St. Augustine, the 5th "PCD'd" a petition for cert. The lower court had denied cert in a challenge to an action by the City that amended a PUD on property that had been annexed into the City.

Here's the legal controversy: under the annexation statute, when a city annexes property it must continue to apply the County's comprehensive plan and land development regulations until the city amends its comprehensive plan to include the annexed lands. So, could the City amend the PUD?

Here's the factual controversy: the annexed lands include a large golf course, and the amendment to the PUD would allow it to be developed.

Disclosure -I know these and other facts not in the opinion because I'm friends with counsel for the landowners.

The majority denied the writ per curium, but Judge Sharp dissented with an opinion. She laid out lots of history to the statute to support the position that you can't amend the PUD or make any changes to the land use until the city plan is amended.

The other side, which we don't get, since the PCD had no opinion, is that the PUD development order, though adopted by ordinance, is an administrative development order issued under the regulatory authority of the comprehensive plan and land development regulations. Amending the PUD did not change, amend, or apply new regulations to the land.

Because the writ was denied without an opinion, the 5th didn't really resolve the legal question. There's another legal twist to it: because this was a case of first impression, and because this came before the court in certiorari, there's a school that says that the lower court could not have departed from the essential requirements of law and applied the wrong law because there was not binding law to apply.

Yet another good reason why we must get rid of certiorari as the means by which we review these things and get a statutory provision for appeal of local quasi-judicial decisions.

If they weren't on the hook statutorily, DOT should be subject to atty fees under 57.105 for this one

Despite having lost exactly the same battle last year in the 1st District, FDOT appealed a trial judge's award of attorney's fees for time spent establishing the value of expert witness fees in an eminent domain proceeding. Case is FDOT v. Lockhart, here's the opinion.

After a lowball offer of $70,000, which turned (miracle of miracles) to over $400,000 at trial, FDOT then forced the landowners to a hearing to establish the value of the expert fees (rather than negotiating and/or stipulating to them). It then claimed that because the witness fees would be set by the court - and the witnesses had apparently testified that they would accept the fees deemed reasonable by the court - that the attorneys were working for the experts, not the landowner in the expert fee hearing.

I'm sure that the FDOT lawyers see themselves as simply battling the greedy eminent domain bar, who suck the public funds trough low by litigating these fee cases. But from where I sit, all they're doing is delaying the process and running up the cost to the public through unnecessary litigation over claims so weak or unfounded (and already rejected) that a private attorney would be risking sanctions to file them.

2d DCA on Cell Towers - And the Limits to the Scope of Essential Requirements of Law in Cert Proceedings

In Verizon v. The Sanctuary, here's the opinion, the court reiterated the view taken by the 3d DCA in its remand decision in Omnipoint, that the scope of the "essential requirements of law" inquiry, as well as the scope of the lower tribunal's authority in a quasi-judicial hearing, is limited to the ordinance or statute being applied in the hearing.

The City of Sanibel granted a license to Verizon to put a cell tower on a piece of property is owned that already had a water treatment plant (no mention of water tower, but I suspect one). It approved this under a "tower ordinance" that it had previously adopted, that indicated the site as one of several potential sites in the city, and that also provided that it superseded any contrary rules, etc.

The neighboring association raised violation of essential requirements of law (not competent substantial evidence), and the lower court granted cert, on several different grounds:
1) The approval was inconsistent with a site-specific PUD ordinance that governed the property;
2) The approval was inconsistent with a settlement agreement between the City and either the Homeowner's Association or the Developer
3) The location was inconsistent with a plat dedication that designated the site as a water treatment plan, even though full title to the property had later been granted to the City
4) That the City was "estopped" from changing the land use and allowing the tower.

In granting cert and quashing the circuit court's writ, the 2d held that the City's permit action was a quasi-judicial action that applied the tower ordinance, and did not involve either the validity of that or ordinance or the application or validity of the PUD ordinance or the settlement agreement. Based on that analysis, the court went on to hold:

The purpose of the certiorari proceeding below was to review the City
Council's application of the telecommunications ordinance to Verizon's request.
as such, the circuit court was not reviewing the Council's previous decision to enact that ordinance. See G.B.V. Int'l, 787 So. 2d at 848 (Wells, C.J., concurring) (explaining circuit court's error in treating county commission's action as legislative when it was quasi-judicial).

In sum, when considering Verizon's application, the City Council
properly applied the telecommunications ordinance, which expressly superseded
any contrary provisions in the land development codeÂ?including those
contained in the PUD ordinance. It follows that the circuit court applied the
incorrect law when, in reliance on the PUD ordinance and the amended settlement
agreement, it declared that the City Council's decision departed from the
essential requirements of law.

The court also held that the plat's designation did not control when the City had been deeded the property, and that the court improperly reweighed the evidence when it found estoppel (which had been raised before the city).

Whew.

The most important aspect of this case is the court's analysis of the scope of the delegating authority (the tower ordinance) as establishing the scope of the "essential requirements of law" and "applied the correct law" analysis. It accepts the Omnipoint court's position that a lower tribunal may only apply the ordinances and rules under which it conducts a hearing; unless those rules pull in other regulations or standards by reference, they are not before the tribunal. It might be required to act in a manner that is contrary to another law, if that other law is not before it.

This creates some interesting problem in our interlocked regulatory world. Was the comprehensive plan and its policies properly before the City in this case if plan consistency is not a standard in that ordinance? One school of thought - 163.3194 requires ALL decisions involving development to be consistent with the comprehensive plan, so thatrequirementt is "legislatively inserted" into all other localordinancess, etc. Another school of thought is that unless the localordinancee expressly requires consistency with the comprehensive plan, it is an impermissible consideration in the qj hearing and review.

The other thing that this decision brings out is the structural difference between what you can challenge in the cert process and what you can't. While the court failed to catch it, the estoppel argument actually should have been thrown out entirely: it is by definition an equitable argument and power, and administrative tribunals have no equitable powers. That is, the City could not have used an estoppel argument to "add" to the standards in the ordinance or limit their scope, and both courts erred in not dismissing this argument later. The same issue holds true with enforcing the plat restriction (though this was rejected on other grounds): barring the use of property that is inconsistent with an easement is either equitable (injunction) and not available as a general power to administrative agencies, or a declaration of rights between the parties, which nothing authorizes the City to determine. Moreover, nothing would grant the City the right to enforce such a determination of rights against itself or between other parties - again, that would be a judicial function.

So, given that there was potential conflict between the PUD ordinance, the settlement agreement, and that there were equitable issues on estoppel and the plat, and that these issues are clearly problematic in the cert appeal, what was the neighbor to do? Well, if there are legal and equitable issues that arise from a government action or rule, and they're not cognizable in cert, then they're going to be cognizable in a dec action.

Back to splits between what you try where, again because of the scope of review issues involved. Again - we need a statute that 1) provides specific authority and procedures for local quasi-judicial actions, and 2) provides for APPEAL, not cert review, in the circuit court, with review by right of the appeal in the DCA. That would broaden the scope of potential arguments and relief and avoid some of the "cramped"treatmentt of these issues that the narrow cert review provides.