1st DCA to DEP - Rebuilding is Not Reconstruction

In Atlantis at Perdido Ass'n et al v. Warner & DEP et al, here's the link, the 1st DCA in an another show of judicial rejection of "reaching" agency interpretations of a statute, rejected the DEP granting of a CCCL permit for a 9 story condo that was to replace an existing duplex and quadruplex on two adjoining lots.

Key issue was how seaward the new building was compared to the "line of construction" and the agency's application of a provision for the rebuilding of structures in their existing footprints or landward of them. Essential DEP granted the permit for the new structures based on the "rebuild" language and the court rejected it because the new structure is completely different than the existing structures on the properties.

What we don't know is whether the property is buildable at all if the new construction must conform to the newer line of construction for the adjoining property. If zoning allows a nine story, fifteen unit condo, but the state statute and rules effectively prohibit anything other than the rebuilding of the duplex and quadruplex - one would start wondering whether any of the rules or statutes have been amended since 1995 such that Bert Harris liability might attach.

OTOH - the entire property was overwashed during Ivan. We don't know from the opinion what happened to the neighboring properties, and whether the state construction standards were sufficient to protect the structures from heavy damage.

Due Process in Driver's License Proceedings - NOT

The 3d DCA overturned the quashal of a DMV driver's license suspension in Fla DMV v. Jones, here's the link. The Department (in a hearing before a non-lawyer, department employee) apparently suspended the license based only on the officer's arrest report. The issue was probably cause for the stop, and the appeal was over whether the lower court had reviewed the statements in the report using a "subjective" versus "objective" test.

But the real issue is that people's licenses are being suspended based only on documentary evidence without the right to confront. The idea that these arrest reports are self-documenting and can be introduced without the sworn testimony of the officer (absent one of the various exceptions to hearsay, etc.) flies in the face of any kind of democratic justice.

Think about it: an administrative agency suspends your license based on a document, then gives you a "hearing" in front of one of its employees - who has no training in the law -- and then rests its case on the document, with no meaningful opportunity to challenge the contents of the document. In other words, in any meaningful way, the arresting officer IS the sheriff, judge, jury and executioner (since the officer siezes the license), because there is no meaningful way to challenge the officer's action.

Good bye justice and freedom. Hello Gulag.

2D DCA Upholds Blight/ED Decision in Probably the Last CRA Use of Eminent Domain

As reported earlier, the Legislature enacted a wildly over-reactive statute limiting the use of eminent domain by local governments and CRAs.

In this case, Fulmore et al v. Charlotte County, here's the link, the Court upheld the trail court's affirmance that the County's determination of blight was valid under the Community Redevelopment Act. It also held (consistent with past decisions) that the elimination of blight (as defined by the statute) had a valid public purpose.

One sore spot - the plaintiffs had challenged the statute as impermissibly vague because several of the criteria are vague. But the challenge and the decision are predicated on the wrong legal arguments regarding vagueness.

The court held that some of the criteria are objective and then stated that the governing law is that if some valid criteria are available, the entire statute can't be struck for vagueness - i.e., no facial challenge:

Â?[A] facial challenge for vagueness will be upheld only if the enactment is impermissibly vague in all of its applications.Â? Brown v. State, 629 So. 2d 841, 843 (Fla. 1994) (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495-96 (1982)). The LandownersÂ? acknowledgement that several of the blight factors are objective and quantifiable necessarily means that section 163.340(8) is not vague in all of its applications. Thus, their facial constitutional challenge fails.

The problem with this is that the court is citing criminal/1st amendment case law instead of regulatory caselaw. A regulation is impermissibly vague if it vests unbridled discretion in the administrative body implementing it. (OK, I'll go get all the cases later and cite them, but, really, that's the law.) There are actually tseparateate but related probleproblemsems: first, that such a delegation puts legislative discretion into the hands of the agency, and, second, that it creates unreviewable decisions when implements.

This is a big deal when you get to regulatory applications of law. No agency should be able to rely on a vague standard to deny a permit simply because there are objective standards in the ordinance, statute or rule. That's true whether the standard is a comprehensive plan element or a criteria for a special exception.

But this is irrelevant to a CRA/blight determination, for one, simple reason: The Community Redevelopment Act vests LEGISLATIVE power, authority and discretion into the local government to make the blight determination. It's NOT a grant of administrative authority. This gets confused today because local governments have broad home rule powers, but back when the Act was adopted, it granted legislative authority and discretion. And the "blight" finding need not be supported by competent substantial evidence (an ADMINISTRATIVE standard), but only by some measure of evidence such that the determination is not arbitrary and capricious. (again I don't have the cite readily available, but I'm pretty sure that there was a Jacksonville case from the 50's or early 60's dead on this point).

So it seems that the entire case was litigated on a badly mistaken view of the structure of the CRA, leading to a mistaken notion of which "vagueness" test should apply, and also of the very nature of what kind of evidentiary inquiry was appropriate.

So, the case is probably irrelevant to future applications regarding eminent domain, but could leave a bad precedent on the vagueness issue.

Initiative is Not Available to Adopt/Amend LDRs! and Charter County Plans Can Supercede City's

In Seminole County v. City of Winter Springs, here's the opinion, the 5th DCA held that a county charter provision that over-rode the City's attempts to plan in annexed areas did not violate the "single subject" rule.

Here's what's interesting: the argument that won below was that the provision in the charter that held that the boundary could be adjusted only by an ordinance adopted by the commission "over rode" the charter's initiative provision -- which allows adoption of ordinances by the electorate. This "extra effect" was held by the trial court to violate the single subject.

Here's what's important: the Court held that Chapter 163's provisions for the adoption of land development regulations by the "local governing board" and definition of "local governing board" as the county commission means that the use of initiative to amend or adopt land development regulations is inconsistent with state law, and therefore prohibited!!!!!

So - a TON of local governments (especially coastal cities) have adopted restrictive charter amendments that required referenda for plan amendments or rezonings that increase density or intensity. Under the 5th's rationale, these are now illegal and unenforceable.

A blow for better planning and land use regulation and a swat at knee-jerk psuedo-democracy.

Procedural Complexities in Challenging Development Orders

In City of Sanibel v. Maxwell, here's the opinion, the 2d DCA granted a writ of prohibition against a trial court to prevent consideration of a "reopened" lawsuit.

There was a dispute over a grant of a variance. Decision was subject to an (unspecified as to procedure) adminstrative appeal, which failed. The decision was then taken to circuit court in declaratory action. Action was dismissed w/out prejudice to file a petition for writ of certiorari, which apparently wasn't pursued (more on this later). That order (the language of which we are not provided), was not appealed.

Two years later, the plaintiffs try to revive and amend the suit with a second amended complaint and the trial court grants the motion. The writ of prohibition proceeds and is then granted on the grounds that the trial court lacked jurisdiction to consider the motion to amend.

OK, this may be a correct result, but it points out a slew of problems for neighbors challenging development orders - and also similar problems for landowners challenging denials.

First, let's look at the original dismissal. We don't know if it properly characterized the action below as quasi-judicial, and therefore subject only to cert review. We don't know if the action was filed w/in 30 days, or if the dismissal appeared to be a death knell to any challenge. Moreover, we don't know if it was a proper, appealable "final order." There is a "magic words" component to an order granting a motion to dismiss - if it only grants the motion, but doesn't actually dismiss the underlying case, it's not a final order and it's not appealable. This then gets into an entire issue of when/how you'd appeal it, whether you'd need to appeal it, etc.

Then there's the fact that the court dismissed the case without leave to amend. Given the 2d DCA decision in the recent Concerned Citizens case, a petition for cert is conducted under the civil rules. Given another recent decision, these are original actions, not appeals. That means that, if the Plaintiffs had properly invoked the original jurisdiction of the court within 30 days of the action, there is a very good arguement that they should have been given leave to amend the already instituted action to be a proper petition for certiorari and to file an appendix, etc.

And if the action was not dismissed by a final, appealable order (no analysis in this opinion), and if it improperly treated the issue of "reforming" the pleading to be a petition for writ of cert, then the circuit court probably did have jurisdiction and the 2d's action is incorrect. Unfortunately, there's not enough information in the opinion to tell.

We really, really need to get better opinions out of our appellate review process on land use decisions. A good reason for creating a new, independent administrative tribunal to hear all administrative appeals from local DO decisions.

State Imposition of Erosion Control Line a Taking Because it Extinguishes Riparian Rights

Beach renourishment is, obviously, a big deal in Florida. So are riparian rights, which include the right to accretion or reliction at the shoreline, and the right of contact with the water.

Before a beach renourishment gets approved, the Florida statutes require that an "erosion control line" be established. This line demarks the point between the upland and the mean high water line (at the time). Under the statute, once established and recorded, it destroys the upland owner's right to accreted lands (including the right to use them for density).

In this opinion, in Save our Beaches v. DEP et al, The 1st DCA held that this destruction of riparian rights is a taking, and that because the statute makes no provision for compensation, it is an unconstitutional taking.

It gets a bit complicated after that, at least for non-admin lawyers. The issue in the case was the issuance of a permit to use sovereignty or submerged lands for the beach renourishment project, which requires that if riparian rights are to be harmed, the state must use eminent domain. That hadn't been done, and the Administrative Law Judge issued the permit, because of the effects of the statute (which was presumed constitutional). Having found the statute unconstitutional, the Court overturned the issuance of the permit. It did not invalidate per se the statue. But it did invalidate the recordation of any deeds or survey showing the line, if those instruments showed a seaward boundary different than the property owners' deeds.

WHAT DOES IT MEAN?
I think this means that any riparian owner on the beach or gulf whose property has been subjected to the recordation of an erosion control line can sue to have that line erased from any record, and clear any title issues to property seaward of the line.

HOWEVER, accretion historically applies to natural processes. What we DON'T know is what happens to the rights of the owners of what was waterfront property where there has been a beach renourishment project that has artificially extended the mean high water line seaward of the historical mean high water line.

Lots of fun, folks!

Important Notice Case from US Supreme Court

In Jones v. Flowers, et. al, here's the link, the US Supreme Court held that notice concepts of due process were violated by the tax sale of a property when the certified mail notice came back unclaimed and the the taxing authority did nothing to determine the actual location of the property owner or to post the property.

This one's long, but should be read. It has poetential application to code enforcement and other zoning enforcement proceedings that could result in burdens (like liens) on property that amount to a deprivation. It might also apply to downzonings - particularly if they would result in a property becoming non-conforming (the loss of the existing right to an existing use rather than simply a potential future right of use).

Bert Harris Settlement - Maybe More Complicated than You Think

A couple of years ago, I blogged Vetter v. Charlotte County - which dealt with preliminary injunctions and vested rights. Now it's back as Charlotte County Park of Commerce v. Charlotte County. Here's the opinion - which anyone interested in Bert Harris actions MUST read.

It appears that a settlement agreement to deal with the case has blown up. One of the elements is that the landowner filed a notice of a Bert Harris claim during the pendancy of the other litigation. The "claim" was subject to the settlement - before the actual Bert Harris lawsuit was filed.

While gets to the issue. The Act provide for the presuit notice of the "claim" (including the requirement to file appraisals), a 180 day settlement period, then the ability to file a suit. The Act also requires court approval of the settlement "under this section" if it would contravene a statute (the most likely candidate in most circumstances is 163.3194 - the consistency requirement- if a settlment arguable includes a variance from or interpretation of a comprehensive plan provision).

So, is a settlement "under this section" a settlement only of a filed lawsuit, or of a noticed claim?

The 2d District took the position that once the notice of claim was filed, the operative provision for approval of the settlement agreement took effect. That is, once there is notice of a Bert Harris claim, the parties are bound by sections 70.001(4)(d) 1 and 2 regarding the settlement. In this case, that meant sending the issue back to the trial court, because if the Bert Harris claim was settled, then the Plaintiff might be entitled to the relief sought (judicial approval and enforcement of the settlement).

3d Reverses its position in Turnberry case

I wrote awhile back about a 3d DCA opinion holding that a particular commercial use wasn't permitted by the Turnberry Isle zoning. Here's a twist:

On rehearing, the court substituted a new opinion, here's the link, that found that the City of Aventura's determination that the use was a vested non-conforming use was reasonable, and therefore due deference. It therefore 'unquashed' the circuit court decision, upholding it instead.

On one hand, this seems a reasonable and fair outcome. On the other, both neighbors and developers live and die by the same sword when it comes to local discretion. I firmly believe that local interpretation should be striclty constructed and reviewed by courts, using the legal rules of statutory construction, for the simple reason that local agencies don't always follow those principles in construing local codes.

3d DCA - Interpretation of Zoning Code and Density

In Marina Grande North v. Fortuna Smulker et al, here's the opinion, the 3d upheld the circuit court's overturning a rezoning on the basis that the city allowed too much density by including privately owned bottom lands in the calculation when the definition of density excludes "water bodies" from the lot area for density purposes.

Seems like a simple enough interpretation question - but now, on to the litigation over the extinction of property rights in submerged, privately owned lands.

1st DCA to Columbia County - Get Real, or Local Gov't Abuses of their Zoning Regulations are Endemic

Ok, I defy anyone to read this opinion, in Stroemel v. Columbia County, and maintain the belief that local governments can be trusted to fairly interpret and apply their own zoning regulations, or even to fairly represent their meanings to the local circuit court.

Stroemel owns property on a river in Columbia County on which he operates a canoe/kayak rental operation. The zoning regulations applicable to his property permit "public resource based recreation facilities." Despite the fact that the river is clearly a public resource, and that a canoe/kayak rental is clearly a "recreation facility" the county tried to shut him down.

Even more incredibly, the county argued to the trial court (and the circuit court judge agreed - HUH?) that the term "public resource" didn't really mean what it said - facilities that used or accessed a public resource. Instead, "resource" wasn't mofied by public - public meant publicly owned.

This argument so doesn't pass the smell test that the county's attorneys should be sanctioned for bringing it forward, even if some locally elected judge was conned into accepting it (as happens all too often - a perfectly decent judge in DeSoto County recently ruled in a case I'm involved in that rezonings aren't development orders, despite the clear language of chapter 163). I believe that local judges trust that local government attorneys will behave as ethically as the state attorneys that appear before them -- that they will be bound to make limited, fair and constitutionally constrained arguments. Instead, too many local attorneys think that their job is to twist and bend the law into any shape that they can in order to defend the actions of their boards, and the boards' political agendas.

But, on a more useful (and less ranting) note - the decision includes a GREAT recitation/summary of the Rinker rules on statutory construction (without the internal cites, etc.). This paragraph should be part of EVERY land use lawyer's lexicon:

In determining whether appellant’s proposed development comes within
the ambit of a “public resource based recreation facilit[y],” the following
rules of statutory construction should be employed:
(a) In statutory construction, statutes must be given their plain and
obvious meaning and it must be assumed that the legislative body knew
the plain and ordinary meanings of the words.
(b) Statutes or ordinances should be given that interpretation
which renders the ordinance valid and constitutional.
(c) Since zoning regulations are in derogation of private rights of
ownership, words used in a zoning ordinance should be given their
broadest meaning when there is no definition or clear intent to the
contrary and the ordinance should be interpreted in favor of the property
owner.
Municipal ordinances are subject to the same rules of construction
as are state statutes . . . . [C]ourts generally may not insert words or
phrases in municipal ordinances in order to express intentions which do
not appear, unless it is clear that the omission was inadvertent, and must
give to a statute (or ordinance) the plain and ordinary meaning of the
words employed by the legislative body (here the City Council).
Rinker Materials Corp. v. City of North Miami, 286 So. 2d 552,
553-54 (Fla. 1973)
(citations and footnotes omitted).

It's amazing how frequently local governments, boards of appeal, and circuit courts forget these basic canons.

Session 9 - Back from the Abyss - the permit denial bill ends up very good

Whoo!

The bill (here's the link) requiring written denials of development permits passed WITHOUT the offensive language exempting quasi-judicial decisions from providing findings and conclusions. The House analysed some of the requirements in committee and seems to have realized that they were walking into an area that the judiciary had doubts about and that was highly contested between various land use constitutencies.

As adopted, the bill is a significant step towards local accountability and judicial review, though I would have preferred a bill governing judicial review of local administrative actions.

Here's the operative text (there's a seperate but identical paragraph for municipalities under 166):

125.022 Development permits.--When a county denies an application for a development permit, the county shall give written notice to the applicant. The
notice must include a citation to the applicable portions of an ordinance, rule, statute, or other legal authority for the denial of the permit. As used in this section, the term "development permit" has the same meaning as in s. 163.3164.

While the bill doesn't provide a remedy, the "shall" language indicates a mandatory act. Here's the question: will the courts invalidate denials without a written notice, or will it simply order the government to issue a written denial (forcing litigation)

Here's the more important question: given the incredibly poor record of local governments at implementing legislative directives that they don't like (maintaining illegal restrictions on mobile/manufactured housing, for example), how many local governments will pretend that they don't know about this and how many local government attorneys will take the "so sue us" attitude.

For such future litigation, the legislative history might be informative. Here's a link to the House staff analysis. That analysis makes clear that the "written notice" is not a written findings requirement and that it is unclear whether the courts will interpret it as such. It also notes that the Judicial Admininstration Commission declined to recommend to the Supreme Court that it adopt a rule requiring findings because of seperation of powers concerns, though noting that due process considerations could justify a judicial requirement of findings. The Staff Analysis also touches on the lack of remedy issue, raising the same question I raised above.

So here's the important aspect of the Staff Analysis: if local government attorneys claim that the legislature's failure to require written findings indicates that the Legislature didn't think them necessary, that's simply wrong. In point of fact, the Senate version of the bill would have explicitly exempted local governments from a written findings requirement, and that exemption has been pulled. So the more reasonable view is that the Legislature may have thought that written findings are appropriate and even necessary.

Session 8 - Annexation and Impact Fees

Here's the text of one of the most-awaited bills: annexation and the impact fee act.

The annexation bill provides for one of those highly complicated processes for dealing with a highly complicated subject. It provides for interlocal boundary agreements to rationalize both the financial and services aspect and the process for annexation. While it's still ultimately voluntary, it does provide a framework and some incentives for local governments to come to agreement about long-term boundary issues.

The impact fee bill is a serious disappointment. It does require that fees be based on "the most recent and localized data," that fees be segregated into seperate accounts, that notice of changes to fee schedules be issued 90 days prior to adoption, limits administration fees to actual cost, and requires audits.

It doesn't require credits for taxes paid by new development, require local government to meet the level of service standards that they use to set the fees, or otherwise structure the methodologies used. So the local governments win again, and the development community will be forced to continually litigate (insofar as it can afford to) the legitimacy of the abusive and unfair fees that many local governments have adopted in the absence of controlling legislation on methodology.

Session 7 - More DRI and Ports

Here's the text of another GM bill addressed water dependant/related uses, encouraging marina siting plans, limiting boat racks, addressing more/different DRI build out criteria. It also gets in a restriction on the conveyance or management of port facilities by foreign entities.