Session 6 - Affordable Housing

An extensive affordable housing bill passed - here's the text. Some key provisions related to growth management (as opposed to financing) -- provisions to simplify the use of the small scale amendment process for projects that include affordable housing, provisions increasing DRI thresholds and substantial deviation thresholds for DRIS providing workforce housing, provision for expedited review (and 1 hearing transmission) of comp plan amendments that relate to affordable housing.

It also requires local governments to do a "surplus lands" inventory to identify sites for affordable housing projects and authorizes local governments and school boards to build and supply affordable housing for their employees.

It's a start at mobilizing a wider range of resources to attack the problem and to simplify the regulatory context.

What next? How about provisions that local governments can't apply a zoning restriction that allows less than 15 units per acre on lands within urban service boundaries, with urban services, so long as concurrency is met and the project will provide at least 15 percent affordable or workforce housing? How about making the 2005 "granny flat" provisions mandatory instead of optional?

Session 5 - DRI and other changes

OK, a very long and complicated growth management bill with a number of changes to build-out and abandonment of DRIs passed. It also has some other "train" items in it. Time precludes a full analysis, but here's the text. This was House 683 - some other house bills on growth passed, as well as some Senate bills.

One of the more "interesting" provisions of this one limits exemption from Chapter 403 permitting of of docks in completely private waters to those of 1000 square feet or less. Another bill (won't cite it here) puts additional restrictions on the permitting of new dry storage racks. While on one hand the legislature and public cry about the loss of waterfront access and boating facilities. on the other they just increase the regulatory restrictions that apply to building new facilities. Great public policy.

Session 4 - Limit Local Gov't Regulation of Electrical Substations

A bill passed that signficantly limits local governments' ability to use zoning to exclude electrical substations from residential and other districts or to impose burdensome buffer or landscaping requirements. Here's the text.

I hate to say it, but we need more of these. Why? Because local governments continue to cater to NIMBY's and abuse their home rule powers by over-regulating the provision of necessary facilities.

Session 3: Mean Spirited Group Home Bill

The Legislature passed a bill (here's the link) that expands the definitions of community residential homes to those licensed by almost any regulatory agency. It also requires that an operator basically prove that the local government has been notified prior to the license to operate being issued.

Why? To expand the effective scope of the 1000 foot seperation restriction on facilities that serve 6 or fewer residents and which are therefore considered by state law to be single family residences. That is, the changes bring in group homes that are licensed by a wider range of agencies and therefore applies the 1000 foot radius restriction to them, thereby running them out of a huge number of neighborhoods.

Session Results 2: Over - restrictive eminent domain bill passes

The legislature passed a grossly over-restrictive eminent domain bill. Here's the link. It will generally require a condemning authority to hold property for 10 years before conveying it to a private party or entity.

Even worse - it purports to prevent the use of eminent domain to acquire blighted properties (OK, anti-CRA) and holdst that the use of eminent domain to abate a public nuisance is not a valid public purpose.

Given the court cases out there that hold that over-restrictive nuisance abatement actions (like shutting down a motel for a year without first giving the owner a fair chance to abate nuisances) constitute a taking - inverse condemnation - this legislative holding is patently ridiculous. The essence of the injunctive power of courts to order a private party to cease a zoning violation is that such violations are public nuisances. If there is no valid public purpose in buying property to abate a nuisance, how can there be a valid public purpose in ordering a person to abate it?

Can't wait to see THAT as a defense.

Session Results 1: Eminent Domain

The Legislature approved a proposed constitutional amendment that would require any authorization to use eminent domain to convey property to a private party to be authorized by a general law passed by a 3/5 majority. This seems an appropriate start to reform as opposed to some of the more restrictive provisions that were under consideration.

Here's the engrossed resolution.

Due Process - They Keep Trying to Kill It

Yet another sad, sad story about the state of our constitutional rights. Here's the opinion, in Longshoreman v. Dade County.

Miami-Dade County, without any individualized suspicion or hearings on individual cases, simply suspended the security cards of hundreds of dock workers due to generalized and vague fears raised by the Coast Guard. Post 9/11 hysteria.

The effect was to through these workers out of their jobs.

Longshoremen sued under section 1983. Circuit court dismissed - no protected property interest. Third District affirms. Finds not only that there is no property interest, but that a broad scale action like this is "legislative" and the only due process applies is ensuring that they passed the decision correctly.

We've sunk to a low respect for rights when the state can first impose the requirement that you hold a "permit" to work, then revoke it completely arbitrarily, with no individualized suspicion or hearing.

It's just wrong. It's inconsistent with any respectable and meaningful notion of due process. It almost certainly violates Article I, s. 9 of the constitution (which Florida courts have held to prevent arbitrary government action even in proprietary type situations). But there you go - big brother isn't just watching, he's putting his (jack) boot on your neck. And the courts are just sitting by and letting it happen.

Sad day for the constitution.

Psychotically Bad Bills Proliferate

Ok, I'm not weighing in yet on the DRI bill(s), or the nacent growth management bills, which mostly seem to be more of the same stuff.

But here are two seemingly innocuous bills, flying under the radar THAT ARE PURE AND SIMPLY EVIL.

The first is the committee substitute for Senate Bill 1112. Here's the link. It started out as an innoccuous bill guaranteeing that when local governments deny development orders, they cite a basis in the local code for it. Someone hijacked it and added a due process violating, evil and wrong provision that says that in quasi-judicial hearings the local government need not provide findings of fact and conclusions of law.

It's a sick statutory embodiment of the Fla. Supreme Court's misguided assault on due process in Snyder, and would overturn over 50 years of due process jurisdprudence that requires quasi-judicial bodies to explain their decisions.


The second really bad bill is SB 1066. Here's the link. It's nothing less than a NIMBY heaven bill, that seems to give adjoining jurisdictions (within 3 miles of a proposed development) a veto power over any land use they don't like. It also requires notice FOR A 3 MILE RADIUS of a potentially objectionable site. THIS BILL IS JUST STUPID. IT WILL ONLY SERVE TO DRIVE ALL INDUSTRIAL DEVELOPMENT INTO RURAL COUNTIES, CREATING SPRAWL, MORE POLLUTION IN UNDEVELOPED AREAS AND GENERALLY BAD PLANNING. IT'S ALSO SO VAGUE THAT ALL COMMERCIAL DEVELOPMENT WILL BE FORCED TO COMPLY.

WRITE YOUR LEGISLATOR TODAY AND ASK THAT THIS STUPID SHORTSIGHTED AND FOOLISH BILL BE KILLED IMMEDIATELY.

It's short, so here's the guts of the text:
When a commercial, manufacturing, or industrial business that has the potential to emit harmful or noxious odors or pollutants or to otherwise create unhealthful or unpleasant living conditions in the surrounding community proposes to locate within 3 miles of a residential area, each county or municipality having jurisdiction over the proposed location must conduct a public hearing on the potential effect of the proposed commercial, manufacturing, or industrial business on the health of persons who live or work in the surrounding community. A county and municipality that share jurisdiction may conduct separate hearings or jointly conduct a single hearing. At least 15 days before the hearing, the county or municipality conducting thehearing shall mail a notice of the hearing to each local media outlet and to each person who owns property, owns or operates a business, or resides within a 3-mile radius of the proposed business, and shall publish a notice of the hearing in a newspaper of general circulation serving the area within that radius. As used in this section the term "residential area" means the area designated for residential use under the future land use map of the comprehensive plan or the land use development regulations adopted by the county or municipalitypursuant to chapter 163.

If you care about (due) process in local quasi-judicial hearings, call your state legislator to stop or amend this REALLY BAD BILL

A bill that Senator Bennett introduced to ensure that there is some kind of written reason when a development permit has been denied has been hijacked by someone and turned into a gross due process violation. It was abused in committee and now is going to the Senate floor with REALLY BAD LANGUAGE

Here's a link to the bill, SB 1112.

What someone did was add language that says that local government DO NOT HAVE TO PROVIDE WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW IN QUASI-JUDICIAL PROCEEDINGS.

This violates due process - see Irvine v. Duval County and all the cases cited in Justice Pariente's dissent in G.B.V.

This one has all the local government lawyers laughing all the way to the bar. It legislatively destroys almost 100 years of procedural due process decisions and would enact legislatively the hideous mistake that the Florida Supreme Court made in Snyder.

Whether you represent developers or neighbors, the sloppy, abusive and unreviewable results of decisions without findings and conclusions prevents you from getting justice and effective judicial review.

Write, call and help stop it now.

Class Action Status Available to Address Systemic Sunshine Law Violation

In Deininger v. Palm Beach County, here's the link, the 4th DCA overtuned a trial court denial of class action status for Palm Beach County employees whose disciplinary hearings violated the Sunshine Law.

The District Court had previously determined that the process used by the County violated the Sunshine Law (posted awhile back). Apparently, the County in its (not surprising) arrogance has continued to use the same illegal procedures. Two disciplined employees sued to determine that their employment actions violated the Sunshine Law and asked for class status on behalf of all similarly situated employees. The trial court dismissed, looking at the merits of the dismissals and holding that each employee would have its own facts.

The 4th recognized that where the claim is that the process violates the Sunshine Law, and that the actions would be void ab initio without respect to the merits, the plaintiffs stated a valid class action claim.

For practitioners - compare this with the 5th's treatment of the buildingfee case a few weeks ago - they claimed that the County's entire process for assessing building fees was invalid as applied to everyone (if not facially) because of decisions made in how the rules were implemented. The court found that the as applied claims couldn't state a class action because the individual merits/calculations were the critical issue to validity. One wonders if this is a pleading problem with that case, or a conflict between the courts.

Document in Quasi-Judicial Hearing Insufficient to Support Determination

In Dep't of Hwys v. Roberts, here's the link, the 5th granted denied cert (over an objection) and upheld a circuit court quashal of yet another kangaroo-court administrative hearing over a license.

The basic issue - probably cause for a stop. The only evidence in the record was the arresting officer's affadavit:

To meet its burden of showing that the stop was legal, Petitioner [the department] chose to rely solely on the trooper’s charging affidavit, which, in material part,
stated: “Observe [sic] the above name [sic] defendant violate F.S.S 316.187(1) by traveling at 71 mph in a 45 mph speed limit area. When I pulled up behind the defendant and attempted to pull him over he traveled for approximately another tenth of a mile before pulling over.”

It basically found that the circuit court properly found that these recitals didn't establish enough evidence of how and why the stop was made to justify it under 4th amendment principles. Also, critically for those of us who do administrative hearings, it found that in evaluating the legal sufficiency of this evidence, the trial court did not reweigh it.

Yeah, team.

BUT WHAT'S SCARY HERE IS THAT IT WAS ABOUT THE SUFFICIENCY OF THE EVIDENCE. What about the confrontation/cross examination problem? The department put on an affadavit and didn't produce the officer, and this would be OK? What about the rule that hearsay alone (and this is clearly hearsay) isn't sufficient to ground a decision in a quasi-judicial case.

I don't know if the driver was represented at the hearing, or whether these issues were raised in the 1st tier cert petition. But they're fundamental. The fact that the department would even think of proceeding against the driver on the basis of the officer's affidavit, without the officer present, is an indication of just how contemptuously they view the process and the leniety they expect from their (department paid and controlled) non-lawyer hearing officers.

This entire system is a sham and a disgrace. At least we have one opinion that demonstrates that insufficient evidence in a quasi-judicial hearing is that.

First Amendment, Discovery, and Land Use Disputes

In Matthews v City of Maitland, here's the link, the 5th held that the trial court erred in ordering a group of citizens who were contesting a land use decision to identify the donors (and in particular, attorneys/developers/accountants for same) to their trial fund. Citing First Amendment and related concerns, the Court granted cert and quashed the discovery order, finding that the effect (and probably intent) was a chilling effect on donors, and that the information was not relevant or likely to lead to relevant evidence.

Using Concurrency for Extortion

Ok, so here's an example from my home town of how local leaders are managing the capital improvements program to extort money from developers.

The background: U.S. 301 through the City of Sarasota is, well, backlogged and constrained at best as it goes through downtown. It's failing concurrency and being managed under policies that deal with roads that need to be improved but without budgets. Just north of downtown, there's areas where there's sufficient right of way to 6-lane it, but in another area they will have to get more right of way (expensive) to complete a whole segment. So - the improvements had, but lost, funding and now after some kicking and screaming FDOT has re-funded the initial section.

More background -- Wal-Mart has applied to buy a city owned site that lies at the southern part of the area that already has right of way, but insufficient lanes. SO -- open to the discussions at the county commission level on how to communicate to FDOT what the local priorities on using these funds are. Here's what the Sarasota Herald Tribune reports:

Widening
of U.S. 301 to start early: "After being briefed on the situation Friday by
Caan, city and county commissioners initially favored widening the southern
section of the road.

But that would boost the road's capacity on the stretch of U.S. 301 where Wal-Mart is planning a Supercenter. If the road is not improved, Wal-Mart would be forced to pay for future improvements because it will add traffic there.

If the road is improved, Wal-Mart could avoid paying.

County Commissioner Paul Mercier said he didn't want to let Wal-Mart off the hook and proposed improving the northern section of road.

'They're starting the problem. They should be solving the problem,' he
said.

Other city and county commissioners agreed and told Caan they'd
prefer the road work start at University Parkway. "

OK, let's look at this. The WalMart will pay extensive road impact fees to offset its costs - so (despite the knowing misrepresentation in the article) - Wal Mart WILL pay for its impacts. But that's not good enough. The County Commission WANTS the road to fail concurrency so that they can extract extra payments from WalMart for the road improvements. So they're directing FDOT to start work on other sections of the road, simply so that they can put WalMart on the hook.

Let's also say that this isn't the first time we've seen this. Locally, the entire development and land use law community knows that the County is managing its capital improvements program in order to create concurrency failures simply to extort developers into paying for improvements that mostly will benefit existing development. They're taking out funding for bringing existing roads up to current drainage, right of way and pavement width standards and pretending that all of the improvements needed to these roads are "capacity improvements" required by new development.

But this is the first time I've seen a local commission so brazenly admit that this is what they're doing.

This is exactly the kind of abusive, cynical, despotic thinking that local officials get into when they're confronted between the easy thing (abuse the rules to hit up a developer for funding) and the principled thing (raise taxes to fund improvements and apply the rules fairly).

And this is going on statewide as road improvement cost increases outpace the increases in gas tax revenues and the Legislature refuses to create adequate statewide funding for state roads, leaving locals in the lurch. AND we have what we can call a dominant political philosophy at the state and local level that sells anti-tax to the public, and in doing so desperately turns to any potential source of funds, regardless of the abuse of principle involved.

Local governments get away with it because they have huge home rule powers, little statutory guidance/restrictions, and lax (at best) judicial oversight. The developers have a lot on the line and few effective remedies, so they negotiate but play along. And the entire system degrades into something that's ultimately as cynical and corrupt as what we decry in 3d world countries - the fact that the money goes into the government's pocket rather than the commissioners doesn't change the fact that it's essentially lawless, free form abuse of power.

It's why we need statewide legislation with teeth on impact fees, concurrency management (that clarifies proportionate share pay and go rights), and better judicial review.

More thoughts on filing cert and Concerned Citizens

A couple of months ago, I reported on Concerned Citizens of Bayshore et al v. Lee County & US Homes, et al, here's the opinion, where the 2d DCA held that R Civ P 1.630 governs the filing of cert petitions to attack local quasi-judicial decisions, rather than the Appellate Rules.

Well, I've had a number of discussions with various folks since then, and I'm pretty well convinced that we're stuck with a well meaning but wrong decision that's going to have some serious negative consequences if not legislatively or otherwise overturned.

Note that that parties involved have worked the issue out on remand and an answer is going to be filed presently. Given the way the opinion came out, neither side had any particular reason to ask for rehearing or clarification, or to suggest to the court that it could get to the right result through a different analysis.

Here's the operative language:

This extraordinary proceeding is governed by Florida Rule of Civil
Procedure 1.630. See also Fla. R. App. P. 9.100(f). The only provision in rule
1.630 which addresses the issue of parties to an action is in subsection
(b)(3), which states, "[t]he caption shall show the action filed in the name
of the plaintiff in all cases." There is no such language regarding the
naming of a defendant. Thus, the fact that the petition did not name US Home as
a defendant in the action did not subject the petition to dismissal.

Weirdly enough, the court recognized the fact that the appellate rules got to the same result in the following footnote:

We note that although rule 1.630 is specifically designed to address matters
unique to an appellate proceeding at the trial court level, its provisions
are not inconsistent with the appellate rules which, even if applicable,
would have afforded US Home no relief. Florida Rule of Appellate Procedure
9.020(g)(4) defines a "respondent" as "[e]very other party in a proceeding
brought by a petitioner." By participating in the proceeding before the BOCC,
US Home automatically became a respondent in the action seeking review of
that decision in the circuit court. See Millar Elevator Serv. Co. v. McGowan,
804 So. 2d 1271 (Fla. 2d DCA 2002) (holding that the substance of the caption
in a notice of appeal is not dispositive of the parties on appeal; all parties aligned in the trial court with an appealing party automatically become appellees if they are not named in the notice of appeal); Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, P.A. v. Mullin, 602 So. 2d 956 (Fla. 3d DCA 1992) (holding that a party who appears in a proceeding before a subordinate tribunal is a party for purposes of review of that order). Thus, while US Home was a party because it appeared and
participated in the proceeding before the BOCC, the fact that it was not named as a respondent in the petition did not subject the petition to dismissal for failure to join an indispensable party.

In any case, here's how it works now:

1. QJ decision is rendered, 30 day clock runs.
Note that the rule doesn't name rendition of the order, and we don't know if the appellate rules' definition applies. So is it 30 days from the action, or the filing of the signed resolution/ordinance/order with the clerk? We don't know.

2. Petition for cert is filed within 30 days. The Petition need only include the facts relied on, a request for relief, and argument, "if desired." A "copy of as much of the record as is necessary to support the plaintiff’s complaint shall be attached"
Note -- 1st, the record here is not an appendix, as defined by the appellate rules. that means, in turn, that you may not be able to supplement it or deal with it as under the appellate rules. 2d, what happens if the record isn't ready or available? decisions interpreting the appellate rules make it clear that the court should allow the petitioner to amend the petition to include citations to portions of the record that are unavailable, or to amend or supplement the appendix if necessary. But we are in uncharted territory under r 1.630.

Note that the circuit court did a "see also r app p 1.190(f)" -- but gave no guidance on how to read these together - and they're so inconsistent as to be unreconcilable.

3. The court examines the petition (someday), and if it demonstrates a prima facie case (?? what does this mean in cert -- just that the decision is quasi-judicial and standing is apparent?) the court issues a summons. The summons is then served by mail or service under R C P 1.080(b) - the rule for serving motions, etc.

But what does this mean? Is the court going to send the summons to the petitioner, who then sends it along with the petition and appendix to the respondent? If the petitioner gets the summons, how long does the petitioner have to serve it? Is the court to send the summons to the respondent directly? If so, who serves the actual petition on the respondent?

In the case of the other writs, which are not limited to record based review and will trigger a hearing, these issues are a bit less problematic.

4. The respondent then must answer in accordance with rule 1.140. Presumably, that means within 20 days of service. but what does teh answer contain? does it have to have numbered paragraphs under r 1.110(f)? does it have to address every paragraph or claim? Can the respondent implead others at this point? Can the defendant file a 1.140 (d) motion to dismiss before answering? does doing so toll the time to file the answer.


5. THEN, who knows? That's all rule 1.630 provides. Presumably you're then just setting a hearing. the Petitioner wouldn't get a Reply.

Could there be motion practice?


In the context of cert review, this simply makes no sense. Not only are the appellate rules better suited to handling the process, they also, legally govern over this mess.


FYI, there's a rule of Judicial Administration that provides that in the case of a conflict between the appellate rules and the rules of civil procedure, the appellate rules govern.

Then we get the appellate rules' explicit delineation of circuit court authority over these cases. You get R App P. 9.030(b) and (c) which describe the cert jurisdiction of the circuit courts to include review of local adminisstrative decisions, and r. 9.100(c), which clearly identifies a 30 day time limit to cert petitions filed to review quasi-judicial decisions of local government boards and commissions. rule 9.100(f) specifically governs the content of the petitions, response, reply, etc., including page limits, formatting, etc. Many of these provisions conflict with the operation of r civ p 1.630.

So it's a mess. It happened because a judge in Lee County bought a stupid argument from a landowner/applicant that a) the landowner was an indispensible party and b) the 30 day limit for filing couldn't be adapted to allow amendment and service of the petition on the landowner after that time.

Let's hope that we get some relief. In the meantime, I'm going to file my cert petitions with an appendix (which satisfies both rules), meet the length and formatting requirements of 9.100(f), demand the right to file a reply, and see what happens.

I'd love to hear from other folks on what they're strategies are going to be.