Bert Harris Case from the 4th - Further thoughts

I posted a link a couple of weeks ago to the opinion in Russo v. City of Dania Code Enforcement Board - here's the opinion, again - and wanted to share some further thoughts.

The case started when, after the zoning ordinance had been amended in such a way to prohibit Russo's use of the property in question (though we never find out what the use was). A citation was issued for the violation on August 30, 2000. This citation was later the subject of a code enforcement hearing, which confirmed the violation. That decision was appealed and confirmed by the circuit court - all prior to Russo's filing the Bert Harris Claim. It should be noted that all adminstrative remedies must be pursued before one can file.

In determining when the statute began to run, the court found that the "application of the regulation" for the purpose of the ordinance and the statute of limitation was the date of the issuance of the citation.

What it correct here, that the court did not find that the regulation was applied on the date that the rezoning was adopted. But let's be clear that a citation is issued by an admininstrative officer BEFORE any due process hearing by the city's code enforcement board. By finding that this was the city's "application of the regulation" to the property, the court elevated the role of the code enforcement officer to a policymaker for the city. If we were talking about a takings case or another civil rights type of claim, the city would claim that the code enforcement officer wasn't authorized to establish policy; the code enforcment board's supervisory and enforcement role in determining that a violation did or did not occur before a fine can actually be levied makes it the final administrative arbiter of whether and how the regulation is actually applied. Given that you must file your "notice of claim" and appraisals within 1 year of the regulation being applied, it seems wrong to run it from an act that might still be under appeal at the 1 year time.

Therefore, it seems to me that the "regulation is applied" to property for the purpose of running the 1 year time when any administrative appeal is exhausted, and the 4th got his wrong. I also think that the 4 year statute should be calculated from the date that the ripeness letter is issued - the last required event that allows the claim to be filed in court.

Anyway, the 4th has ruled, this is the rule, however unfortunately construed, and at least the court didn't take the city up on its interpretation - which would make it functionally impossible to bring these claims if the local government dragged appeal or related issues out.

No Class Action on Illegal Impact and Building Fees - OR - Local Govenments Once Again Get a Free Ride to Abuse their Authority

OR - Why We Need Statewide Legislation on Impact Fees

In this opinion rendered by the 5th DCA in Seminole County v. Tivoli, the court overturned the trial court's certification of class status in a case that attacked the County's building and water/sewer fees.

The district court essentially found that each developer who paid allegedly illegal fees would have to establish the proper fee and damages on its own, and that the complaint therefore did not and could not establish a valid class action:

Three depositions and an amended complaint purportedly showed Tivoli paid too
much for building permit fees and impact fees. Tivoli's cause of action,
however, would require much more than that. It must also show, church by
mobile home by parking garage, whether developers subject to the County's
arbitrary and unreasonable calculation of fees were overcharged and, if so,
by how much and on what basis. These individual inquiries would predominate
and overwhelm any common issue. See Hoechst Celanese Corp. v. Fry, 753 So. 2d
626, 627-28 (Fla. 5th DCA 2000).

As a practical matter, because Florida law does not provide a developer with attorney's fees for challenging illegal and arbitrary regulatory fees, this decision means that local governments are economically free to charge illegal fees up to the effective cost of litigating against them. Just as the federal courts have evicerated section 1983 as a means of protecting our federal rights by evicerating the attorney's fee provisions, this ruling guts meaningful protection for our rights against illegal impact fees.

Going to show that
a) Senator Bennett is right, and we need a state statute governing local impact and building fee methodology and review; and
b) We need attorney's fee provisions for successful challenges to illegal local regulations

Certiorari Proceedings - Original, Not Appellate

In this opinion in Steinberg v. Becker (not a land use case), the 5th District noted that certiorari proceedings in the district court to review a circuit court action is not appellate in nature, but an original action.

Important or not? In this case, it meant that appellate attorney's fees weren't available.

But what does it mean for precedent? Is a decision made under certiorari jurisdiction not binding on other cases becuase it's an original decision in and under the particular facts of the case? What does it mean for the recent dustup where the 2d DCA held that cert proceedings are taken under R. Civ P. 1.630 instead of R. App P. 9.100 (which I have come to believe was wrong, even if it was the law).

Does it give a circuit court additional powers, once jurisdiction is invoked, to determine the rights of the parties? I would say it does, despite the unfortunate ruling in G.B.V. that the court's power is limited to remanding the action to the quasi-judicial board.

And we're going to find this one out soon: does it mean that if you have the right facts, you can bring a cert action to challenge a local government quasi-judicial decision in federal court if you have concurrent federal claim? I would say it does. And a major dustup over a project in Pasco County in which the local government basically changed the rules midstream to give the County Commission a denovo review over a Planning Board decision instead of an appeal has landed in federal court, with a cert petition and a bunch of federal claims.

But that's probably not how we want local government decisions reviewed. What to do? Pass a statute providing for minimal standards in local quasi-judicial decisions and providing for the constitutionally indicated appeal of those decisions to circuit court.

Irvine burden shifting applies in all quasi-judicial development order decisions

One of the key elements of fairness (such as they are) in local quasi-judicial develompent order decisions is the basic premise that if the applicant demonstrates a prima facie case of compliance, the other side (government or opponents) must adduce competent evidence of non-compliance and adversity to the public interest. This was the holding in Irvine v. Duval County, (the supreme court version and 1st DCA on remand).

In G.B.V. , the supreme court affirmed that the burden shift applied to plats. Now the 4th (in a problematic opinion, here it is) has aplied that to a site plan approval. Other courts have applied it to conditional use permits and similar decisions. It should now be clear that it applies to all development order decisions.

It should - it's necessary to ensure that the local board doesn't simply deny permits based on a rejection of the evidence in front of it -- that is, a situation where the developer puts on evidence of compliance with the requirements of the plan and regulations, no one puts on contrary evidence, and the board simply denies the request and tries to defend on the basis that it wasn't convinced by the evidence.

On the substance in this case, the developer lost on an interpretation of the zoning code's requirements - it didn't put on evidence on an issue because it claimed that the relevant provision wasn't mandatory. The board (apparently), trial court and district court appear to disagree - though the relevant provisions of the code aren't cited in the opinion, so we're left to guess whether the court is being fair or just giving the lower court and local government a bye.

A Carelessly Written and Probably Wrong Interpretation of Accessory Uses at Turnberry - Read and Be Careful [Updated]

NOTE - this post has been updated based on information provided by a knowledgable attorney - see below.

The 3d DCA held that Turnberry Isles condo can throw a Pritiken Lifestyle center out of the commercial portion of the development because it is not a principle use. It interpreted (but did not provide) the zoning regulation adopting the zoning ordinance, which allowed (btw) two hotels, restaurants and a commercial marina, as well as a commercial area. Here's the opinion -

In holding that the center is not permitted, the court provided this VERY troubling language:

it clear that the principal use of the Turnberry development, including the
Association's property, is as a luxury, multi-family, planned residential
community served by various accessory (or ancillary) uses. Thus the luxury
residential units comprise the principal use, and any additional uses on the
property must be ancillary to (or accessory to) the principal use. That is to
say, any use on the subject property must benefit the property residents and not
be available to the general public at large.

Let's just say that 1) there's no way that a hotel meets this test - so unless there's different language in theordinance that addresses the hotels, the court's interpretation is simply silly. Let's also just say that unless the ordinance language SPECIFICALLY included provisions not cited that limit the uses as described, the court's interpretationn is overbroad in a scary, scary fashion.

Local governments all over Florida are adopting mixed-use PUD ordinances intended to provide commercial nodes in or adjacent to residential development. The trip capture and other functions of these commercial nodes will not work if they are limited to uses that "are not available to the general public at large." Under this view of PUDs (not to mention accessory uses), a hotel restaurant can't serve the general public (which violates federal law), the copy shop in an office building can't serve users outside the office, and in most cities, buildings couldn't provide paid parking for patrons who then left the premises. And presumably, if a PUD's principle use was commercial, with ancillary residential, the residential component could only be used by owners, employees or customers of the commercial uses. It's ridiculous.

I only hope that the parties request clarification and that the court provides an opinion that cites specific provisions of the particular ordinance that supports its view or modifies the opinion so as adopt a proper view of the relationship between residential and commercial uses in a PUD.
--------------------------------------------------------------------------------
After posting the original version, which referred to the development as (and assumed the development was) a PUD, I got the following message from Stan Price - a land use attorney who was formerly with Dade County and probably knows the background:

your interpretation of the 3rd dca opinion does not accurately reflect the
facts of the case. The original zoning approval in the 1970's was prior to the
PUD provisions being drafted. The extremely limited language of the zoning
resolution and sudmitted covenants restricted the uses to ancillary and
incidental uses which are supplemental to the luxury high rise
development. By contrast, PUD and other mixed use districts recognize this
distinction and permit totally independent uses within the district.

Stan's info indicates that there are specific provisions of the ordinance, not cited by the opinion, that justify the decision. I would still hope that the court would grant a rehearing or clarification and cite the specific provisions of the ordinances and covenents that explain the decision, so as to avoid it being misinterpreted .

RL

Statute of Limitations in Bert Harris Claims: 4th Gets it Half Right

In Russo Associates v. City of Dania Beach Code Enforcement Board, here's the opinion, the 4th DCA correctly rejected the City's attempt to read in a ridiculous 1 year statue of limitation on the filing of a Bert Harris claim that would relate not to the "ripeness" event provided by the statute, but to 1 year after the ordinance or statute were applied.

The court unfortunately went on to seemingly hold that the statute of limitations is 4 years from the application of the offending statute, ordinance, rule or policy rather than from the ripeness determination - which is the clear and only purpose of having a ripeness determination.

So, on August 31, 2000, the City issues a citation for code violation. The landowner goes through the administrative appeal process (as required by Bert Harris), and appeals that decision to circuit court. The circuit court affirms, ending the administrative appeal process, and -- in any reasonable interpretation -- establishing the date on which the ordinance is actually applied to the property.

We don't get the date that the circuit court decision is handed down, but on October 10, 2002, the landowner files a Bert Harris notice will the Mayor. Subsequently, it files the actual Bert Harris complaint on February 6, 2004.

While the Act is confusing on this point, it requires that the "claim" be "presented" within 1 year of the application of the law or regulation to the property. The Act requires a "notice" to be presented to the government agency, which then has 180 days to issue a ripeness determination. If it issues within 180 days, the matter is ripe upon issuance, if the it fails to do so, the claim is ripe after the 180 days.

The court correctly rejected the City's truly frivolous claim that the landowner had to present the claim within 1 year of the "application of the ordinance to the property." Unfortunately the trial court bought that argument and dismissed the case with prejudice, thus wasting a huge amount of time, taxpayer and landowner dollars.

Unfortunately, the 4th viewed the presentation requirement as a "pre suit" requirement. While it correctly applied the statutory 4 year statute of limitations, it interprets that as going to the time that the claim is presented to the local government (the notice, which must be w/in 1 year of the application of the ordinance/statute), instead of to the date that the claim became ripe.

It make no sense at all to tell someone that their claim doesn't become ripe for filing until after 180 days from when you present notice of your injury, but then to state that the statute of limitations runs from the notice. Ripe means ready for adjudication. The statute clearly intends to create a certain point in the review process and a certain point in time to measure actionability. It make no sense to start the clock ticking before the claim is ripe.

SO PRACTITIONERS: if you're on the landowner side, be sure to mark the date you file the notice, rather than the date you get your ripeness determination; that's the beginning of the running of your 4 years; if you're on the government side, watch the dates, too.

Rule of Law, Schmule of Law; We're City Commissioners (Not this time) - Why We Need a State Version of U.S.C. s. 1983 & 1988

The 4th DCA granted cert quashing a circuit court order denying cert to a landowner who was, well, it gets complicated, in this opinion in BMS Enterprises v. City of Ft. Lauderdale.

The Ft Lauderdale Code allows self storage units within 60 feet of a railroad right of way and makes them a conditional use in other places. Conditional uses apparently go to the City Commission for approval. The Code also provides for determinations /interpretations by the Zoning Administrator, with an Appeal to the Board of Adjustment -- as do most local zoning regulations. It then - atypically - allows for an appeal to the City Commission, who can overturn the BoA by a supermajority.

An applicant got a determination from the Zoning Admininstrator that he could build a self-storage building on a site that was adjacent (<60') from a railroad right of way. The Administrator determined that the conditional use applied in all other locations, but that the (as the District Court later found) clear language of the ordinance permitted them within 60 feet of the RoW.

An aggreived neighbor appeals to the BoA and loses. Neighbor then appeals to both circuit court AND to the city commission (note: LACK OF JURISDICTION NOT DEALT WITH IN OPINION). The City Commission has a majority vote to overturn the BoA, but not a supermajority. It then uses the majority vote to purport to deny the landowner to use the property as a permitted use or a as a conditional use.

Yeah, it threw the law out the window and basically said - a majority is enough to deny a conditional use or adopt an ordinance, so its enough to order the Zoning Administrator and the BoA not to grant this guy a building permit, whatever the ordinance actually says. Typical arrogant and abusive behavior by Commissioners who CONSTANTLY forget the difference between their legislative and administrative/quasi-judicial powers and think that they can do whatever they want, anytime any issue is in front of them.

The circuit court let this travesty play out, apparently feeling that if the Commission had discretion to deny a conditional use for a self-storage, it had the discretion to do so even though the Administrator and BoA said it was a permitted use and the Board lacked the supermajority needed to overturn that.

The 4th quashed and remanded, clearly stung by its limits under G.B.V. which allow it only to quash and not to tell the circuit court and the City that they better follow the law as written.

The City Commission here not only violated the essential requirements of law, but any notion of due process and fair play. This was clearly an arbitrary and capricious decision that has now cost this landowner tens if not hundreds of thousands of dollars in attorneys fees and delay damages. We need a state version of the Civil Rights Act that allows abused petitioners to get damages and attorneys fees from reckless and lawless local governments and brings some respect for individual and property rights back into the system.

Holy Cow! 5th Holds that Pre-Annexation Agreement Can Violate Prohibition Against "Contract Zoning"

In County of Volusion v. City of Deltona, here's the opinion, the 5th held that the circuit court erred in not considering the pre-annexation agreement, and whether it constituted a prohibtted "contracting away of the police power" in its certiorari review of the annexation. Oh, and it also held that when a group of parcels are annexed, the "contiguity" and other criteria should be applied to the annexed territory as a whole, and not parcel by parcel.

With respect to the "contracting" issue, the pre-annexation agreement contained limits on the city's authority to rezone the property and required it to make any contiguous annexations part of the same DRI, along with some other requirements, all of which could (under the agreement) be enforced by specific performance. The court found that this raised a question of whether the agreement effectively contracted away the police power, and that the circuit court departed from the essential requirements of law in not considering these arguments.

It also held that, as a matter of law, the annexation was not contiguous. Essentially the 2000 acre plus parcel was seperated from the City, so the owner and the City got a 10 acre parcel that lay between them with 300 feet of common boundary with the City. The court held that "350 feet out of more than 20,000 cannot constitute a substantial portion of the western boundary of the three parcels annexed together."

Whoa - it's been a long time since an annexation went down, and this is a big one - the attack on the pre-annexation agreement will be a MAJOR strategy for any future litigation over a voluntary annexation, since they are based on such agreements.

A Very Interesting Case: Tolls are User Fees and Subject to Circuit Court Review

In a very interesting opinion in Gargano v. Lee County, here's the opinion, the 2d DCA overturned a circuit court's dismissal with prejudice of a multi-count complaint attacking Lee County's longstanding failure to adequately maintain the Sanibel Causeway Bridge while still collecting (and then raising) tolls -- the revenue of which then went to other county roads and project.

Yes, in another example of local commissions rampantly disregarding fairness and safety in order to avoid raising taxes to address existing infrastructure deficits, the Lee County Commission for years has helped to balance its road program on the backs of Sanibel Island residents, workers and visitors by charging tolls for the only route on and off the island. Those revenues far exceeded those necessary to retire the cost of the bridge, and were clearly not used (exclusively or even significantly) to maintain the bridge. The tolls simply subsidized other users of the county road system.

The suit claimed that this violated Florida law by being an excessive toll and essentially an unauthorized tax (which Lee County can't levy). While the tolls were authorized by a statute, taxes were not, and the suit claimed that by being unreasonable and improperly used, the tolls were unauthorized taxes and therefore unconstitutional.

The County claimed, and the lower court held, that this issue was beyond the jurisdiction of the court - essentially that tolls are unreviewable if authorized at all. The 2d rejected this, finding that the "savings" appendix to Article V preserved the previous constitution's explicit grant of jurisdiction in the circuit court to review tolls.

The Court also rejected the circuit court's determination that the plaintiff, a resident of Sanibel, did not have standing. Applying the "special injury" test, it found that a resident of the island, while sharing this injury with other residents, was specially injured in comparison to the community as a whole (presumably the entire county). This is an important precedent because it establishes that an injury need not be unique or even limited to a few people in order to be "special" in the context of this standing rule.

Once it found that tolls could be reviewed, and that the plaintiff had standing, the court got stuck (see footnote 1 for a judicial admission that I've never seen before, the candor of which is one of the reasons I deeply respect Judge Altenbernd). It could not find a clear basis in law to determine when a toll is unconstitutional, given that the the constitutional right to challenge tolls indicates that they could be.

[the court also found that there was not a basis for recovering improperly charged tolls, but only a right to prospective relief; it also found that a count trying to establish that the tolls created excess costs for garbage collection paid by the plaintiff did not establish a cause of action]

But the court then lead the lower court to a possible resolution. It rejected the plaintiff's claim that the toll was a tax; instead it found that the toll is a user fee. It is a user fee despite the fact that anyone who is a resident of the island must pay it because there is an option not to live on the island. The toll is therefore like garbage and other "mandatory" user fees.

But the court did not "get" that this determination closes the circle. Under Florida law, user fees must be reasonable, AND THEY MUST BE APPLIED TO DEFRAY THE COSTS OF THE SERVICE FOR WHICH THE FEE IS CHARGED, AND ONLY THOSE COSTS. If a user fee is in excess of the costs of delivering the service, it is an unconstitutional tax. That is, while local governments and municipalities are authorized under home rule and various statutes to charge user fees, if they charge more than a "reasonable fee" (measured by the cost of delivery), the fee is unreasonable and a tax. Which is then unconstitutional.

Moreover, a fee payer has standing to bring a Chapter 86 declaratory action to determine whether a user fee is authorized and reasonable. Even more, longstanding rules on fees and special exceptions demonstrate that with certain exceptions, those who paid such unconstitutional fees are entitled to reimbursement.

SO - it will be very interesting to see what happens to this on remand.

Pure and Manifest Injustice, or, Why the Arbitration Laws Must be Amended

As someone who is constantly frustrated by the inadequate standards and processes that certiorari affords for the review of quasi-judicial decisions, I was deeply struck by the 2d DCA's willingness to follow the law into a decision that it clearly recognizes was manifestly unjust in this opinon that reinstated a clearly flawed, unsatisfactory and unjust arbitration award that happens to be so badly lacking in explanation that it is legally unassailable.

The law should not frustrate justice.

Agency Interpretation and Inconsistent Application and Opinions

OK, here's an editorial opinion: give administrative agencies (including local commissions when sitting in administrative/quasi-judicial capacities) statutory authority with discretion or lack of criteria, and they end up abusing the people they regulate. Not a function of bad faith, evil intent, or anything nefarious - it's simply the way that it works because the folks who are regulated don't know what they can or can't do until the agency tells them, and the agency had every motivation to just say no and put the time, cost, effort and risk of fighting on the private party.

Oversight of agency action by administrative law judges (in the case of the APA) and the courts are the citizens' only defense against abusive agency action or inaction. And the doctrine of that agency interpretations are given deference is a key limit on judicial oversight and a critical factor in agency abuse.

In a number of recent cases documented here, the courts have clarified the circumstances under which deference to agency discretion is warranted. These have clarified that deference is due ONLY when there the statute or rule is ambiguous (and of course limits on the delegation of legislative authority are in turn suppose to limit the ability to legislate ambiguous standards). These decisions hold that where the language is not ambiguous, de novo judicial review allows the court to apply its own interpretation of the statute, rule or contract and to reject a contrary interpretation. These decisions make clear that deference to agency interpretation is a kind of rule of statutory construction used when the application of those rules is necessary.

But there are a number of older cases out there that simply recite that agency interpretations are to be deferred to if "in the range of permissible interpretations." These decisions defer to the agency unless the agency interpretation is clearly inconsistent with the statute. That line of cases in effect uses the "rule" to AVOID applying rules of statutory construction.

So there's a large -- REALLY LARGE -- are of confusion in when and how the doctrines apply, and a gulf between the results you get depending on which approach to the rules apply.

In Lakeland Regional Medical Center v. Agency for Health Care Administration, here's the opinion, the 1st DCA recited existing language in another opinion to simply continue the confusion. It determined that an agency interpretation of a statute was permissible and would be deferred to without ever analyzing whether the language was ambiguous and whether it was appropriate to apply the "deference" rule.

This is an area of the law that creates unpredictable results, unnecessary confusion, and abuses of agency discretion (measured from a public policy, rather than legal point of view). The legislature should step in and provide guidance in both the APA and in the interpretation of local administrative rules/ordinances. Of course, the latter would require a statute setting forth rules for the general review of local administrative decisions. Oh! Here's one ready to go!

You Do Get Multiple Chances to Get the Record Right on Cert

In this opinion, in Dragomireki v. Town of Ponce Inlet, the 5th reminded the circuit court that the point of the appellate rules is to facilitate effective review, not create hoops to throw out cases.

The convoluted case involves the attempt by the Town of Ponce Inlet to force a guy to tear down his unfinished house becuase of delays and difficulties in finishing it. The man filed a pro se writ of cert against a negative Board of Adjustment and Appeal decision, but didn't file the appendix. Got an order, got an attorney, who then got an extension, filed the appendix and filed an amended petition.

Court didn't like the citations or the Appendix and instead of ordering the Petitioner to file a more complete record (which actually it couldn't do under F R App P 9.220, but if the court wanted it . . . .) it dismissed the petition (which effectively is with prejudice because of the time issue).

Uh, uh, said the 5th:

Although the circuit court noted that dismissal as a sanction is to be used sparingly, the circuit court dismissed the petition, saying that the record was incomplete, confusing and contradictory. Although we do not fault the trial court's frustration, we conclude that, under these circumstances, the sanction of dismissal was too severe. The dismissal deprived the petitioner of the only judicial review of the administrative order of the Town of Ponce Inlet requiring that he demolish his partially built home for building code violations.

It is often very difficult to prepare a proper record in an appellate proceeding such
as this. Municipal boards are not set up well for creating and organizing a record for
appellate review, and this dispute has apparently been raging for over three years,
including eight hearings and voluminous correspondence. It is not uncommon to see
confusion and contradiction, but based on our review, it does not appear that the record was so "incomplete, confusing and contradictory" that the appeal could not proceed. It is the petitioner who has the right to select the issues for review and who has the burden of providing a record adequate to demonstrate error. If petitioner's record is incomplete, he will not be able to demonstrate error and he will fail on the merits.

Yet another reason why we NEED A STATUTE THAT PROVIDES CONSISTENT STANDARDS FOR THE CONTENT OF THE RECORD, PLACES THE RESPSONSIBILITY FOR ITS CREATION AND PRESERVATION ON THE ADMINISTRATIVE TRIBUNAL, AND PROVIDES FOR APPEAL, RATHER THAN CERTIORARI, AS THE AVENUE FOR REVIEW!!!

Sometimes It Comes Out Right and Justice is Done - In this One, DCF Gets What's Coming to It

I'm generally pretty depressed about the state of justice in the courts, but this opinion from the 5th DCA lifted my spirits a bit - though it's not a land use case.

Essentially, DCF unilaterally and contrary to the available evidence decided that a disabled woman's mom couldn't care for her, changed the disabled woman's care plan (unlaterilly), mailed the notice late, used their inability to react to the late notice to change her status, and then refused for something like a year to give her a hearing, then convinced the (non DOAH, captive DCF) hearing officer that "back payments" for the improperly discontinued care weren't available (though the clear statutory and caselaw provided it).

The hearing officer reinstated the mother's care but didn't provide the back benefits. Also held that attorneys' fees were unavailable.

The 5th enforced the statute's back benefits AND found that the woman was entitled to a seperate hearing before a DOAH administrative law judge for trial level attorney's fees AND found that she was entitled to appellate attorney's fees because of the agency's absolutely clear and indefensible bad behavior.

Very Important Decision on Initiating Certiorari Review

A must read for all land use litigators:

In Concerned Citizens of Bayshore et al v. Lee County & US Homes, et al, here's the opinion, the 2d DCA did us all a favor by clarifying a few key issues in initiating certiorari review.

Concerned Citizens filed a cert petition challenging a rezoning granted to US Homes, but did not name US Homes as a party (in the caption) or serve them within 30 days. US Homes moved to dismiss for failure to name an indispensable party and the trial court granted the motion, even though petitioners were willing to amend to name US Homes, and had served them by mail.

WRONG. Under a number of cases (cited in the opinion), the landowner is not an indispensable party, as the opinion correctly points out.

But the opinion went beyond that and held that R Civ P 1.630 governs the caption, parties and service of a common law cert petition, not R. App P. 9.100 (b) -- which as near as I can tell was a case and opinion of first impression, even though the rules have been around for a long time. Under that rule, you file your writ (and record), and if the petition sets forth a prima facie case, the court enters a "summons," which then must be served as provided by R. Civ. P. 1.080 (b) (the general service by mail, hand, fax rule - rather than the service of process rule). The comment to R. 1.630 indicates that if the record isn't available, the petitioner may request additional time to file it - a position held in case law under the appellate rules, but not explicit.

One reason this is important is that R. App. P. 9.100 (b) provided that all parties to an action below are to be named as respondents; this created the petard on which the court hoisted Citizens in the action below.

But the court went even further and noted that R. App. P. 9.100 (f) does apply and that US Homes was a party respondent under R App. P. 1.020 (g)(4), and therefore entitled to participate with or without service by Citizens. NOTE: this implies that anyone who participates in a quasi-judicial hearing and establishes a record basis for standing (common law/special injury or by local ordinance) can pile into a cert case as a respondent - even if they're actually supporting the petitioner, and be a party regardless of the caption and initial service.

The opinion does leave a couple of critical holes: first, whether cert petitions, responses and replies are governed for length, format, etc. by F R App P 9.100 f-l; for example, is the "record" that must be transmitted according to R Civ P 1.630 an "appendix" as required by R. App. P. 9.100(g)? So we still have a ways to go before all of the kinks are worked out.

I've been very frustrated by a number of PCA/PCD opinions from the 2d that dodged important issues and was afraid that the court was going to do that in this case as well (I know all of the private party litigators in this one, so knew about the case). So, thanks to the panel and the court for issuing an opinion that clarifies and simplifies what had emerged as a bit of a trap for petitioners in this area. It's a MUST READ.

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Just for fun, here's the text of the appliable rules:

RULE 1.630. EXTRAORDINARY REMEDIES
(a) Applicability. This rule applies to actions for the issuance of writs of mandamus, prohibition, quo warranto, certiorari, and habeas corpus.

(b) Initial Pleading. The initial pleading shall be a complaint. It shall contain:
(1) the facts on which the plaintiff relies for relief;
(2) a request for the relief sought; and
(3) if desired, argument in support of the petition with citations of authority.

The caption shall show the action filed in the name of the plaintiff in all cases and not on the relation of the state. When the complaint seeks a writ directed to a lower court or to a governmental or administrative agency, a copy of as much of the record as is necessary to support the plaintiff’s complaint shall be attached.

(c) Time. A complaint shall be filed within the time provided by law, except that a complaint for common law certiorari shall be filed within 30 days of rendition of the matter sought to be reviewed.

(d) Process. If the complaint shows a prima facie case for relief, the court shall issue:
(1) a summons in certiorari;
(2) an order nisi in prohibition;
(3) an alternative writ in mandamus that may incorporate the complaint by reference only;
(4) a writ of quo warranto; or
(5) a writ of habeas corpus.

The writ shall be served in the manner prescribed by law, except the summons in certiorari shall be served as provided in rule 1.080(b).

(e) Response. Defendant shall respond to the writ as provided in rule 1.140, but the answer in quo warranto shall show better title to the office when the writ seeks an adjudication of the right to an office held by the defendant.

Court Commentary
1984 Amendment. Rule 1.630 replaces rules and statutes used before 1980 when the present Florida Rules of Appellate Procedure were adopted. Experience has shown that rule 9.100 is not designed for use in trial court. The times for proceeding, the methods of proceeding, and the general nature of the procedure is appellate and presumes that the proceeding is basically an appellate proceeding. When the extraordinary remedies are sought in the trial court, these items do not usually exist and thus the rule is difficult to apply. The uniform procedure concept of rule 9.100 has been retained with changes making the procedure fit trial court procedure. The requirement of attaching a copy of the record in subdivision (b) may not be possible within the time allowed for the initial pleading because of the unavailability of the record. In that event the plaintiff should file a motion to extend the time to allow the preparation of the record and supply it when prepared. The filing of a motion to extend the time should be sufficient to extend it until the motion can be decided by the court.

RULE 1.080. SERVICE OF PLEADINGS AND PAPERS
(a) Service; When Required. Unless the court otherwise orders, every pleading subsequent to the initial pleading and every other paper filed in the action, except applications for witness subpoena, shall be served on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them shall be served in the manner provided for service of summons.
(b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Service on the attorney or party shall be made by delivering a copy or mailing it to the attorney or the party at the last known address or, if no address is known, by leaving it with the clerk of the court. Service by mail shall be complete upon mailing. Delivery of a copy within this rule shall be complete upon: (1) handing it to the attorney or to the party, (2) leaving it at the attorney’s or party’s office with a clerk or other person in charge thereof, (3) if there is no one in charge, leaving it in a conspicuous place therein, (4) if the office is closed or the person to be served has no office, leaving it at the person’s usual place of abode with some person of his or her family above 15 years of age and informing such person of the contents, or (5) transmitting it by facsimile to the attorney’s or party’s office with a cover sheet containing the sender’s name, firm, address, telephone number, and facsimile number, and the number of pages transmitted. When service is made by facsimile, a copy shall also be served by any other method permitted by this rule. Facsimile service occurs when transmission is complete. Service by delivery after 5:00 p.m. shall be deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday.