How NOT to Attack Inadequate Notice - Why We Really Need a General Review Statute (Again!)

In Marion County v. Kirk, we have a case where the petitioner below screws it up, the trial court gets it right the wrong way, the majority opinion on review completely misses the right result and the dissent gets the right result with incomplete reasoning (albeit not helped by the absence of the petitioner/appellee).

Rule 1: in quasi-judicial matters, if the tribunal does not provide notice (e.g. mailing notice of a hearing) in a manner that comports with the governing statute/ordinance or due process, what is your remedy?

Answer:
1. If you have actual notice and appear that the hearing, you get no relief UNLESS you ask for a continuance and it is unreasonably denied, and then you have to raise this via certiorari as a procedural due process violation UNLESS the statute or ordinance provides another remedy.
2. If you do not get the notice and therefore don't appear, you can file a declaratory action to declare the decision void/ultra vires if it violates a statute/ordinance.
3. If you do not get notice and don't appear, AND the action deprives you of a property right (like it's your property being assessed, or downzoned, or code enforced), you have a right to declaratory relief for violations of due process under the Florida Constitution, as well as to declare the action void. You may have a right to an action under42 U.S.C. 1983, depending on just what they did -- like if they sold your property at a tax sale, or imposed a code enforcement lien, or gassed your dog, or lost your son's body, you have a property right protected by the 14th amendment in the 11th Circuit, but if they merely downzoned you, or denied a development permit, etc., you don't.

So, let's all get together -- if you're claiming lack of notice, you're not limited to cert review of a quasi-judicial decision because the violation not only made the decision invalid (as a violation of due process or jurisdiction), but because the violation also left you unable to protect your rights at the hearing.

Here, we don't know if the petitioner/appellee showed up, but she filed a petition for mandamus (probably to get around the 30 day cert window) claiming that County didn't sent required notices. She demands as relief that the County be ordered to issue notices (again) and hear the action again (ah, but what about the original decision? does renoticing the hearing vacate it? I think not!).

She properly gets an evidentiary hearing, at which the County doesn't quite put on sufficient evidence to actually prove that they sent the notice, and the court finds for her. At which point the County goes "oh, ****" and asks for rehearing, gets it, and brings in affidavits (not witnesses) that the mailing was done. The court rejects the affidavits, enters the writ, and the appeal (without the petitioner participating) proceeds.

The majority ends up holding (a) that because this was quasi-judicial, cert was the remedy and the court was wrong to entertain mandamus; (b) that the court erred in not considering the affidavits, and (c) -- and I really, really, really can't believe this -- that the court erred in not respecting the "presumption of routine practice" under 90.406 of the evidence code, as conclusive that the mailing was done once it was delivered to the group that mails things for the County.

First, as noted above, when you complain about failure to comply with notice requirements, you aren't limited to cert unless you appear. The court's failure to get this means that they just issued an opinion that appears to negate the longstanding rule. I can only assume that the County and developer attorneys sold the court a load of bull when they realized that the petitioner wasn't appearing during the appeal, and probably are giggling about throwing this monkey wrench into the established law.

Moreover, the whole "presumption" rule seems ridiculous as against testimony that the notice wasn't received. I don't think that the court should have/could have relied on affidavits to counter sworn testimony taken under oath and subject to cross examination. If the County blew their case, they should have been asking for rehearing and the right to present the witnesses. And the court should have granted that, and if the affidavit testimony held up, probably should have dismissed the petition - or the dec action if the court had properly reformed the filing.

Which gets us to the dissent. Judge Griffin nails it that the petitioner was not limited to certiorari. She doesn't hit the nail on the head on how the matter should have been reformed -but does end up with the right analysis:

Finally, the question whether this was properly a mandamus proceeding does
not make this decision reversible. The County did have a mandatory, ministerial duty to provide notice to all property owners within 300 feet and to conduct a hearing only after proper notice was given. Since the assertedly improperly noticed hearing had already been conducted, arguably another writ, such as prohibition, would have been more apt. One thing is for sure, however, this did not have to be brought as a certiorari review of the County’s approval of the special use permit. Cf. Bhoola v. City of St. Augustine Beach, 588 So. 2d 666 (Fla. 5th DCA 1991). Consistent with the provisions of Florida Rule of Civil Procedure 1.630 and Florida Rule of Appellate Procedure 9.040(c), the correct denomination of the writ is
not essential. Courts should, and indeed, this court generally does, treat
the application for any extraordinary writ as what it ought to be.

It does appear that a more correct result would have been reached if the
trial judge had exercised his discretion to grant rehearing and had taken further evidence on the County’s procedure for mailing of notice and Ms. Kirk’s actual knowledge of the hearing, but this is a decision allocated to the trial court, not to us.

I am really dreading the day that I see this case cited for the proposition that you can't challenge the failure to provide required notice with an original action, or explaining to a new associate (or just a newer land use lawyer) why the law doesn't restrict you to cert under these facts.

One more piece of evidence for why we really really need a general law governing the review of land use decisions that provides appellate relief (not cert) and the right to issue corrective orders.

Fifth District: Volusia County Must Demonstrate Historic Use of Beach

In Trepanier et al v. County of Volusia, the Fifth District got into a veritable scrum of overlapping issues involving the County's assertion of the right to occupy platted lots. That are beachfront. It overturned a summary judgment on behalf of the County for most of the counts, but basically blew that takings issue (more below) and upheld the lower court.

A bunch of folks have beach front lots, with a seawall back into the property. Used to be lots of beach in front of the platted lots, but hurricanes resulted in what appears to be avulsion (not gradual erosion, but sudden loss of land).

The County then decided that it would help people invade the lots. It staked out areas up to the dune line (way past the high water mark), and delineated areas in which people could drive and park that were within the platted area of the lots. This appears to have been the veritable straw, as the various landowners seem to have been accepting of some give and take with the public for crossing or sitting on the beach, but didn't like the cars.

Suit ensues, with claims of trespass and taking, as well as requests for declaratory and injunctive relief.

The County not only claims that the entire beach in Volusia County (more on the definition) is open to the use and access of the public, but that cars can use it, too. Yes, Tona-Roma returns, with a vengeance (montazuma's vengence). The County demands that the court establish an easement across the landowners' lots up to the seawall or line of permanent vegetation. Not only that, but the County actually counter claims against the homeowners for some ancient cause called "perpresture" -- which the court explains in a footnote is "[a]n encroachment upon public rights and easements by appropriation to private use of that which belongs to the public." Yep, the County claimed that, by asserting that they still owned their lots and had any right to exclude the public (or at least its cars), the homeowners were stealing from the public.

Lenin would be so proud to know that Volusia County agrees that property is theft. (remember the right to exclude, core stick in that bundle?) On the County's motion for summary judgment, the circuit court also apparently pulled out a copy of "What is to Be Done?" along with its Southern Reporter. In what sounds like excrutiating detail, the circuit court turned effective title much of the lots to the County, ruling that (quoting from the 5th DCA opinion):

This court declares that the defendant, COUNTY OF VOLUSIA, on behalf of the
public, holds a superior claim to possession and use of the beach landward of
the mean low water mark of the Atlantic Ocean to the place where there is marked change in material or physiographic form, or to the line of permanent vegetation in accordance with the definition set forth in Fla. Stat. section 161.54(3) (2004).

Plaintiffs are permanently enjoined from impeding public access to the beach or from acting in any manner inconsistent with the free use of the beach by the public,
including access by motor vehicle, subject to the regulatory power of the County of Volusia.

Ok, so first the Court declares that the County actually owns the real rights to the beach for the public (yeah, Lenin!) - for what else is a "superior claim to possession and use"? The court then declares that the area of the beach is defined not by common law, but by Florida Statutes. It enjoins the landowners from acting "in any manner inconsistent with the free use of the beach by the public," which appears to me to mean that the public has a right to set up a tent in front of the Plaintiffs lots to enjoy the beach, but if the Plaintiffs do the same thing they are in contempt.

The circuit court does a handwave to Tona-Rama, but completely bastardizes the fact-specific holding that case. For those who don't read all the obscure land use cases, Tona-Rama held that (in very fact specific circumstances) parts of the beach at Daytona Beach around the pier had been subject to public use for so long that a prescriptive easement had been established, one that prevented the owner of the pier from developing on parts of the beach that had been essentially the public beach. The circuit court reached around Tona-Rama and added a dose of its own public policy to hold that the beaches throughout Volusia County (again, defined by the statute) are public as a matter of law, and open to vehicles.

It also finds prescriptive use rights based on (uncited) open and historic use of the beach.

Oh, and it doesn't stop.

The circuit court also agrees with the County that whenever the beach changes landward, the public's rights automatically migrate with it (no review whatsoever of whether changes are avulsion or erosion - too petty a detail to consider when homeowners are stealing the beach).

The Fifth District, to its credit, puts most of this to a screeching halt. It wants to see a factual record on whether this area of the beach was historically used by cars, and for what part of the beach (like, did people ever drive within the platted lots?). The Fifth also wants findings on the avulsion/erosion issue, and whether the use of the beach was permissive (which doesn't create prescription) versus adverse.

In other words, the Fifth is going to require fairly strict application of the common law principles that underlie Tona-Rama and not simply wink at judicial expropriation of the beach through some newly minted rule of law. The opinion deals with the critical Tona-Rama case this way:

Although we recognize that the issue is far from clear, we conclude, both from
our reading of the supreme court's various opinions in Tona-Rama and from reading the underlying decision of the First District Court of Appeal in City of Daytona Beach v. Tona-Rama, Inc., 271 So. 2d 765 (Fla. 1st DCA 1972), that the intent of the supreme court was to declare the right of customary use in the public only for the area of beach at issue in that case, for which it had an extensive factual record of customary public use. Indeed, the decision of the First District Court of Appeal was explicit in this regard, as it necessarily had to be, because the remedy that court embraced was prescriptive easement.

On the question of whether the right to use the beach above the high water line (if it were established) also moved, the court held that the avulsion/erosion issue had to be addressed. It went on to hold:

Certainly, if it can be shown that, by custom, use of the beach by the public as a thoroughfare has moved seaward and landward onto Appellant's property with the movement of the mean high water line, that public right is inviolate. However, it is not evident, if customary use of a beach is made impossible by the landward shift of the mean high water line, that the areas subject to the public right by custom would move landward with it to preserve public use on private property that previously was not subject to the public's customary right of use.

The Fifth also noted that the entire issue is going to require resolution by the Florida Supreme Court: "We recognize that a question as important as the meaning and scope of Tona-Rama and the migration of the public's customary right to use of the beach will ultimately have to be determined by the Supreme Court of Florida, not this court. We believe, however, that this case should not go to the high court until the evidentiary issues we refer to have been developed in the trial court. "

After all this good work, the district court blows the final act when it upholds the circuit court's dismissal of the landowners' takings claims:

Finally, we agree with the trial court's analysis of the "takings" issue. If the law
recognizes that the public has a customary right to drive and park on Appellants'
property as an adjunct of its right to other recreational uses of that property, as
recognized in Tona-Rama, then no takings claim can be made out.

The problem should be obvious: if the circuit court finds that the public does not have a customary right to drive on these lots, then the County's actions in staking out parts of the Plaintiff's lots and letting people park and drive on them is a taking! Remember Loretto? One of the remaining "per se" takings claims - significant interference with the right to exclude?

The problem with this mistake (and you can understand it in context) is that it implies that there isn't a taking or recompense for the plaintiffs even if they win and the County refuses to stop. Very sad that in order to fix this giant hole in an otherwise smart and thoughtful decision, the landowners might have to ask the supreme court to review it.

Maybe the landowners should simply start putting out calthrops or other barriers to the cars and let the county sue them and move for a temporary injunction to stop them. Would be a VERY interesting case at that point regarding who's rights are initially recognized - the fee owner seised under the common law or the invading government, claiming on behalf of the public that the landowners "seisin" constitutes a seizure.

In any case - VERY important stuff and at least some glimmer that the rule of law and cooler heads sometimes prevail. Lenin may be weeping, but Locke and Blackstone smile.

3d DCA - Equitable Estoppel Protects 25 Year Old Encroaching Addition

In a case that demonstrates why we really need specialized land use courts in this state, the 3d DCA issued an opinion that (correctly, in my view) holds that equitable estoppel prevents the County from code enforcement against a family room added 25 years ago, which now (and maybe then) violates rear setback requirements. The case is Castro v. Miami-Dade.

The facts are pretty clear, though the law isn't. Since 1983, the Castros have owned a townhouse that was built in 1980 . The townhouse came with an addition in the form of a family room that comes to about 5 feet from the rear setback. The County granted building permits to the prior owner in 1980 or '81 to build the addition, and to the Castros in 1993 to reroof the family room after it was damaged by Hurricane Andrew.

The law is where this case becomes problematic. It "appears" that the "older" zoning required 14 foot rear setbacks; everyone seems to assume that the addition had to have violated them. No one appears to have looked at the zoning resolution/special exceptions that permitted the entire development to see if they provided different setbacks. Then, in 2003, the County adopted new setback requirements of 25 feet.

An Code Enforcement inspector cited the Castros for building in violation of the Code. When they proved that the addition had proper permits, and the zoning staff recommended no enforcement, he went back and charged them with "maintaining" the family room illegally in violation of the NEW 2003 zoning regulations. The hearing examiner agreed and found them in violation, and the Castros appealed.

The circuit court (without a written majority opinion, apparently) concluded that the Castros couldn't claim equitable estoppel because it appeared that the family room was always illegal. The 3d DCA reversed, finding that the circuit court departed from the essential requirements of law in refusing to apply equitable estoppel.

This opinion was written by Judge Rothenberg, who wrote the opinion affirming the denial of cert by the circuit court without an order to show cause where she found that the petition could not establish "undue hardship" in Fine v. Coral Gables, and who dissented in the "truck" case, Kuven v. Coral Gables. I want to state that I think Judge Rothenberg is a good judge and is trying hard to figure out the right way to handle these cases, and is relying on good law. I also want to say that her opinions (in my opinion) demonstrate how and why land uses cases are so hard, and why they need a special set of courts.

The problem in this case is the range of complicating issues that simply aren't discussed at all, because (clearly) neither the circuit court nor the district court understands them.

• Exactly how do Miami-Dade's "nonconforming" building regulations work? The district court opinion appears to indicate that they thought that the 2003 code provided no "grandfathering" at all. Was that the case, or was the problem that the County maintains that the structure could not be grandfathered because any permits granted to it were granted illegally?
• There is NO discussion in the opinion of how the "illegality" exception to vested rights/equitable estoppel should or should not be applied. Instead, the opinion goes straight to fairness. Fine, insofar as it goes, but as any kind of precedent, the unanswered questions may swallow the holding.
• Is the court holding that local governments are also estopped from claiming illegality as a defense at some point in the future when they have issued building permits? Is there some presumption that the government acted legally and that there was some earlier interpretation of the earlier zoning regulations that has to be presumed unless conclusively disputed? If I cite this case, I will say that it stands for that proposition, but the opinion doesn't say this clearly.

Let's be clear: I think the basis outcome is right. For the county to come back almost 30 years after it granted a building permit and claim that it had to be illegal is vile, and it puts the burden unfairly on the homeowner.

I see this frequently now: for example, local governments are running around and looking at ponds or ditches that may have been installed 30 or 40 years ago prior to local or state regulation and citing them with code enforcement violations for not having permits. They then try to make the landowner prove that the ditch/pond was permitted when it might have be installed prior to permitting. Unless the landowner can find aerials or some other evidence that the ditch/pond was there prior to the regulations, the landowner is fined for violating the ordinance, even if there is proof that the pond existed for years before the landowner bought the property.

Judge Rothenberg and the other members of the panel clearly see the fairness problem, but because they don't know zoning and land use, the opinion doesn't clarify the law the way it should. We need judges that "get" land use hearing land use cases.

Also from the Supremes: Updated Test on Special Acts

In a fairly unusual (at least in local government law) occurrence, the Florida Supreme Court also issued two cases in one day that dealt with tests for whether a statute is a "local law" or "speical act" and subject to the special processes for such laws. The new (well, actually, affirmed) test: if the "class" of localities or entities regulated by the statute is not "open" is based on whether there is a realistic or reasonable chance that other localities or entities will enter the class.

The first case was Fla Dept of Bus and Prof Reg. v Gulfstream Park Racing Ass'n, which dealt with an act that involved televised (or rebroadcast) racing and betting on such races. The statute regulated situations where there were 3 tracks within 25 miles of each other (which applied only to a certain area in Broward and Dade counties and to 3 particular tracks including Gulfstream). However, the state argued that because of some bizarre provision in another statute, it might be possible to establish one or more new quarter horse racing tracks within 25 miles of one another, and therefore it was possible that the restriction could apply to other localities and entities in the future.

The First DCA rejected "mere possibility" as a test and concluded that the
proper test was whether there is a reasonable possibility that other entities
would be subject to the class. The Supreme Court agreed, writing
that

We conclude now that we made explicit in that opinion what was implicit in our prior decisions, namely that any determination of possible future applications of a statute must be done by a realistic and reasonable assessment. Otherwise, such an assessment would essentially be standardless, a situation we do not believe to be consistent with judicial review and enforcement of article III, section 10

The Supreme Court therefore agreed with the First DCA that the statute was a local or special law, and invalid because it had not been properly adopted.

A similar fate befell a statute attempting to exempt a particular hospital transaction from going through Certificate of Need (CoN) permitting. In St.
Vincents' Medical Center v. Memorial Healthcare Group, the court found that the statute, while purporting to be "open," included standards and timing that only one hospital or facility could reasonably be expected to meet.

The quote in St. Vincents', while lengthy, is probably the one that will be used in the future:

St. Vincent’s does not dispute that the statute’s provisions appear tailored
to fit its plans to establish a new hospital. Rather, St. Vincent’s challenges
the district court’s invocation of a “reasonable possibility” standard rather
than a mere possibility standard in any assessment of whether others may qualify
under the statute’s exemption. However, as we recently held in Florida
Department of Business & Professional Regulation v. Gulfstream Park Racing
Ass’n, Nos. SC05-2130 & SC05-2131 (Fla. Sept. 6, 2007), “a review of our
case law and the underlying purpose behind the constitutional restrictions
contained in article III, section 10, supports the reasonableness standard used
by the First District and its application to this case.” Slip op. at 12.

In Gulfstream Park, we confronted a statute that prohibited a racetrack from
selling broadcasts within its market area if it is within twenty-five miles of
at least two other racetracks. Id. at 3. While the parties agreed that, at the
time of the statute’s enactment, it applied only to one particular part of the
state, they differed as to whether the statute was open to application to other
areas of the state in the future. Id. at 11. As we held in that case,

In essence, we must choose between a wholly speculative evaluation
of the possibility of the future application of a statute as advanced by the
appellants and the practical reasonableness standard articulated by the
district court. While our own case law has been largely silent on this
issue, an examination of the analysis applied in each case implicitly
suggests that we ourselves were applying a reasonableness and realistic
possibility standard in assessing a statute’s potential future operation.
Nowhere in any of our decisions have we indicated that a wholly speculative or unreasonable potential would satisfy the constitutional mandate of article III, section 10.

Id. at 12. Accordingly, we agreed with the First District’s conclusion in that case, finding that there was no reasonable possibility that the statute would ever apply to other parts of the state. Id. at 13.

While the courts should never second-guess the Legislature about the policy decisions contained within a challenged statute, we are nevertheless obligated to give meaningful effect to the notice procedures for special laws mandated by
Florida’s Constitution. Consistent with this obligation we have emphasized in
Gulfstream Park that whether a law has general application turns on a
determination of whether its application to others is reasonable or practical,
not theoretical or speculative. The question of general application is not to be
guided by irrational speculation that anything is possible. Id. at 13 (“[A]ny
determination of possible future applications of a statute must be done by a
realistic and reasonable assessment. Otherwise, such an assessment would
essentially be standardless, a situation we do not believe to be consistent with
judicial review and enforcement of article III, section 10.”).

I'm not sure how many of these "greased" statutes get passed every year; I'm guessing its a fair number. There's a much more clear basis to challenge them now, and a reasonable threshold for proof.

Fla Supremes Make REALLY Sure We'll Have Lots of Special Assessments - No Bonds for TIFs w/out Referendum

In my "local government law" class in law school - and in studying for the bar - I learned that you can't pledge ad valorem tax revenues for bonds without a referendum. I also learned the exception - you could pledge TIF revenues or combinations of revenues, so long as the core "ad valorem" taxing power was not implicated in the pledge.

Not any more. In Strand v. Escambia County, the Florida Supreme Court drove a stake into the heart of the Miami Beach case that established the "TIF exception" and loosed an arrow (not yet struck) into the "combination of revenues" exception established in the Sarasota County School Board case.

Not surprisingly, a local government had taken the TIF exception (carved out for CRA type improvements) to an extreme, funding a major road improvement ($135M) for Perdido Key solely from TIF-backed bonds. The TIF "area" is the "Southwest Escambia County Improvement District"-- which does NOT appear anywhere in the opinion as an MSTU/MSBU; instead it appears that the County tried to use its home rule powers to simply create a TIF-type area from whole cloth to segregate general-fund ad valorem tax dollars into the bond payments. [I'm sure I'll here from the principles if I've got this wrong or if the Court missed it.] The Court invalidated the bonds as being in violation of Article VII, s. 12.

The Court did a very scholarly job of reviewing the bad history of ad valorem-backed bonds in Florida and the two main "exception" cases. It also discussed (cogently) the Volusia County case that held that the County couldn't pledge a hodge podge of non-ad volorem revenues to back a bond if it appeared that the county might have to raise ad valorem taxes to replace the pledged revenues. The Court concluded that the Miami Beach and Sarasota School Board cases went too far and reeled them back in.

So, in the span of two weeks we find out that local governments get huge discretion to issue bonds backed by special assessments and have little or no discretion to issue bonds backed by ANY kind of ad valorem revenues. Two results are pretty much automatic:

1) HEELLLOOOO MSTUs and Special Districts with special assessments. I'm guessing we'll see lots and lots of these because its the only way left to raise funds to pay for infrastructure.

[Well, maybe we won't see so many in the short run. After over 25 years of Republican preaching about "no new taxes" and government waste, the citizenry thinks that it can get better roads and other infrastructure for free. It's all new development's fault, just use impact fees to do it, and if they don't work, screw around with concurrency to create moratoria and then make them pay for everything just to be able to do anything. In that climate, we probably won't see cities and counties establishing responsible ways to pay for infrastructure until they lose a few major cases.]

2) Bye, bye CRAs!!! No bonding for TIF revenues from CRAs, so why bother - straight into special assessment districts. First they lose the power to condemn for redevelopment, and now they lose the ability to bond TIF dollars - the two useful functions of CRAs are now pretty much toast.

The Fla Supremes Dodge the Real Question and Approve a Bond Issue

In Citizens Advocating Responsible Environmental Solutions v. City of Marco Island, the Supreme Court validated a bond issue for wastewater improvements backed by special assessments on existing and future development in currently unserved areas of the City. The real challenge was to the improvements funded by the assessments.

Here's the problem: CARES claimed that the City was playing a major funding shell game and mixing up the costs of rehabilitating its aging 3.5 MGD existing plant with the costs of expanding the plant to 5 MGD.

The circuit court and Supremes found that there was enough evidence before the City Commission to support its legislative finding that the assessments reasonably benefit the properties to be served and were reasonably attributable and assigned to those properties.

And of course there was testimony that (a) the plant would not have had to be expanded (or new lines run) absent service to the new areas; (b) the bond proceeds were pledged to "expansion costs" for lines and treatment capacity; and (c) the existing users would get no special benefits from the expansion. The Supremes found that to be enough to meet the 2 part test for a valid special assessment in a bond validation proceeding where the bonds are funded by the assessments.

The problem, of course, is that we don't know (from this kind of appellate opinion) how much the local government was hiding, and what CARES was really asking for was meaningful cost accounting to distinguish between capacity improvements and rehabilitation of the plant. If the City had been charging pure impact or hookup fees instead of special assessments, that kind of inquiry would have been required (see the Sarasota County case from a couple months back, or the Volusia County school impact fee case). But by playing a switcheroo game, labeling the charges "special assessments" and pledging them to bonds, the City gets away with minimal scrutiny of its cost accounting.

This is wrong. Maybe the City is playing fair, but based on what I've seen of public finance lately, I don't believe it. All over the state, local governments are refusing to hand existing residents the bill for the service upgrades they want (wider roads, better drainage, better equipped parks) and pretending that the "need" for additional capital investment is entirely attributable to new development.

The Supreme Court, whether intentionally or not, made this problem worse with this decision. The Court -- and the abusive local governments - are simply daring the legislature to adopt meaningful legislation to provide minimal, uniform standards of accounting for capital improvements, and a standard approach for impact fees and other exactions.

My God, I've Been So Unfair to Coral Gables! (Not)

I'm sure that some folks think that I was a bit overboard in my comments on Coral Gables. Well, it does turn out that after over a year's debate, the brave city commission decided in July to let a small portion of the city test out the possibility for 90 days (yes - opening up a 90 day window for permit application) that, with the strict supervision of the City Architect and Board of Architects, metal roofs might not cause the complete collapse of property values.


In the Spirit of Fairness, I'm including link to the whole 6 page metal roof ordinance - with enough Whereas clauses and referrals back and forth to committees with significant review and public hearings on almost a dozen occasions to make you think that it was the work of the Comintern at its most bureaucratic.

By the way - a trellis (yeah, like for flowers) is an accessory use in Coral Gables, permitted only with the approval of the city architect. The same with fountains - yes, want to put one of those little lion-head fountains on your back porch - get a permit and hope that the city architect doesn't think it's too down-market if you bought it at Target.

You need a permit to paint your house, and must go through the Review Board if you don't use a pre-approved color , or if (horror of horrors) you want to use more than one color on the outside of your house. Here's the link to the "approved colors" page and here's a link to the brochure on "So You Want to Paint Your House" - really - explaining why a permit is necessary to ensure that your painting project is "safe, legal and in accordance with building and zoning laws and ordinances."

And - I just love this -- why have declarations of restrictions on your subdivision (and worry about maintaining them) when the City will adopt specific standards for your subdivision right into the Zoning Code, including in several cases, specific directions for where houses can be placed on specific lots. Not to mention, in one case, a requirement in the zoning code that a property owner obtain permission from all waterfront property owners in the subdivision before building a boathouse. Think I'm making this up? Here's the link.

The 3d DCA Strikes a "No Trucks" Ordinance in Coral Gables - and the World Didn't End!!!

In Kuvin v. City of Coral Gables, a panel of the 3d DCA (over vigorous dissent by Judge Rothenburg) held that the City's "no truck" parking regulation went too far by prohibiting personal use trucks from parking in other than a fully enclosed garage.

In a true shocker, the majority opinion was written by Senior Judge Schwartz, whose normal view of zoning and land use issues is that any challenge is brought by a degenerate and corrupt landowner or developer. In one of the best passages I've seen in years, says:

But there is a larger issue at stake here. Absent any legitimate basis for
the ordinances, what remains is that the City Parents disapprove of a perhaps unorthodox vehicle and the possibly diverse taste and lifestyle which may be reflected by its ownership. This is just what Judge Hurley was getting at in Proctor by characterizing an anti-truck parking ordinance as unconstitutionally contrary to protected rights of association, privacy and “personhood.” Proctor, 396 So. 2d at 773 (Hurley, J., concurring); see also Moore v. City of E. Cleveland, 431 U.S. 494 (1977)(invalidating municipal zoning limitation on
occupancy of dwelling to defined “family” as unconstitutionally restricting family choice to “nuclear” family).

For a governmental decision to be based on such considerations is more than wrong; it is frightening. Perhaps Coral Gables can require that all its houses be made of ticky-tacky and that they all look just the same, but it cannot mandate that its people are, or do. Our nation and way of life are based on a treasured diversity, but Coral Gables punishes it. Such an action may not be upheld.
(internal citations omitted, but the "ticky-tacky" comment references the Fine decision).

The concurrence focused on the distinction between commercial and non-commercial trucks.

The dissent by Judge Rothenberg took the position that pickup trucks are ugly, local governments can regulate aesthetics, the guy could park the truck in a garage (which his house didn't have), and so the ordinance is ok. Gosh, put that way, they can tell you what kind of toilet paper to use, too.

For those of you who might be sympathetic to Judge Rothenberg's position, let me show you this provision of the zoning code:

Section 4-412. Trucks, trailers, commercial vehicles, and recreational
vehicles--Parking upon streets and public places.
Except as provided for in this Division, no trucks, trailers, commercial vehicles, or recreational vehicles, shall be parked upon the streets or other public places of the City between the hours of 7:00 PM on one day and 7:00 AM of the next day. This prohibition is in addition to the total prohibition covering residential areas as provided in Section 4-411.

That's right kids: drive a pickup truck (including an Explorer Sport, Avalanche, Suburu Brat, and most SUVs), AND YOU CAN'T EVEN PARK YOUR VEHICLE IN A PUBLIC RESTAURANT'S PARKING LOT AFTER 7 PM AT NIGHT. YEP - EVEN IF YOU HAVE A GARAGE FOR YOUR TRUCK, OR LIVE OUTSIDE CORAL GABLES, YOU CAN'T PARK IN THE CITY AFTER DARK. Jeez, maybe we need a judicial decision naming rednecks and construction workers as suspect classes.

A Not So Fine Day in Coral Gables, or The City that Makes Your House Less Safe

In Fine v. City of Coral Gables, Judge Rothenburg (dissenter in the Kuvin case) writes an opinon for the 3d DCA that denies second tier cert where the circuit court had refused to even issue an order to show cause for the Fine's petition for cert review of the city BZA's denial of a variance to permit a metal roof. The 3d DCA found that (despite the fact that cert review is MANDATORY) the Fine's petition did not establish a basis for relief because they could not show or claim "undue hardship." Of course, it's the 3d DCA and they don't recognize that the legislature repealed Florida's version of the standard zoning enabling act in 1985, along with its mandatory "hardship" standard for variances.

Neither rule 9.100(h) nor rule 1.630 requires the reviewing court to issue a show cause order or to order a response to the petition if the petition does not demonstrate a preliminary basis for relief. See Wingate v. State, Dep’t of Highway Safety & Motor Vehicles, 442 So. 2d 1023 (Fla. 5th DCA 1983)(denying second-tier petition for writ of certiorari even though circuit court sitting in its appellate capacity declined to issue an order to show cause based on its determination that the petitioner failed to state a preliminary basis for relief).

In the instant case, the circuit court denied the Fines’ petition for writ of
certiorari without issuing an order to show cause requiring a response by the
City. This clearly was not error, as our review of the petition filed by the
Fines reflects that no response was necessary as the Fines failed to establish
an "unnecessary hardship," an essential element when seeking a variance. See
Miami-Dade County v. Brennan, 802 So. 2d 1154, 1155 (Fla. 3d DCA 2001).
"‘Unnecessary hardship’ has generally been defined as a non-self created
characteristic of the property in question which renders it virtually impossible
to use the land for the purpose or in the manner for which it is zoned." Id. at
1155 n.2 (Fletcher, J., concurring); see also Maturo v. City of Coral Gables,
619 So. 2d 455, 456 (Fla. 3d DCA 1993)(stating that "a legal hardship will be
found to exist only in those cases where the property is virtually unusable or
incapable of yielding a reasonable return when used pursuant to the applicable
zoning regulations"); Herrera v. City of Miami, 600 So. 2d 561, 562 (Fla.
3d DCA 1992)(holding that a variance may be issued only when no reasonable use
can be made of the property without the variance). As the petition did not
establish the requisite hardship, the circuit court did not fail to apply the
correct law by not requiring the respondent to respond before denying the
petition.

On a procedural level, it's terrifying to see Wingate cited in a land use case, because it involved "discretionary" cert review.

Turning from the procedural, yes, in the beautiful but stupid City of Coral Gables, you have to have a barrel tile type roof that's less safe than a metal roof. Why? Because they're authoritarian freaks who would regulate the types of toilet tissue you could put in your house if they ever thought of it. Probably would find that the use of recycled or no-brand tissue would be commercial in nature and have the potential to devalue residential neighborhoods - so you have to use something that costs at least $1.50 per roll.

The Fines should have taken their chances and filed a declaratory action seeking to hold the ordinance standard unreasonable or, perhaps, pre-empted by the provisions of the Florida Building Code. While they may have not suffered an "unnecessary hardship," they certainly have been subject to an arbitrary and unreasonable regulation (well - depending on the panel you pull).

Major Payne: The 3d DCA Holds that Zoning Policy Is Relevant to Plan Amendments

In Payne et al v. Dep't of Community Affairs et al, (Payne III), at the end of a long saga, the 3d DCA overturned the Dept's final order on some very interesting grounds.

First, the court found that DCA had improperly denied the plaintiffs, whose petition was determined timely filed in Payne I (this involved the question of whether the "rendition" occurred when passed by the Council or when the 10 day "veto" window expired - the court held that the veto date was relevant) the opportunity to amend their petition to include policy issues from the relevant zoning regulations.

Second, the court found that the Department and DOAH had improperly proceeded to hear the case without the participation of Marine One, whose standing had been determined in Payne II. That case involved whether interests in regulation under the zoning code could be substantial interests that supported standing.

One of the big issues was the effect of the "Port of Miami Plan" - the DCA, City and DOAH said it wasn't an effective part of the comp plan for internal consistency review, the 3d DCA in Payne II said it was. So proceeding without taking the holding of Payne II into account was error.

The court also found that DCA, DOAH and the City improperly treated the plan amendment as a small scale amendment when it would permit multi-family mixed uses in excess of 10 units per acre. The city claimed that the "urban infill" exception to the density cap applied -- to the entire city -- but the court did not buy that. Of course, this issue hadn't been pled (guess it will on remand!), but the court found it necessary to examine and determine.

The court then found a number of plan policies that it contended are internally inconsistent with the conversion of lands from water-dependent/water-related industrial uses to mixed use commercial and residential. Ok, so far.

But the court then went and found inconsistency between the amendments and
- the purpose of the applicable pre-existing zoning districts;
- policies in an undadopted Miami River Master Plan planning study

In its conclusion, the Court got down to its real objection:

We further note that these "small scale" amendments, when viewed together as a
whole, are changing the character of the Miami River waterfront without proper
long range planning or input from appropriate agencies, departments, and citizen
groups. Because the Miami River is such an important asset to the City, County,
and State, such piecemeal, haphazard changes are not only ill-advised, they are
contrary to the goals and objectives of those who worked together, debated, and
determined how the Miami River waterfront should be developed. If the City’s
vision for the Miami River has changed, then that change should be clearly
reflected in its Comprehensive Plan to provide industries and land owners along
the Miami River with fair notice.

In other words, the Court's position is that the City has to amend multiple policies in order to change land use designations along the Miami River waterfront.

Did the Court get the various technical issues right? I don't know - not having read all of the material. But the Court is clearly taking a position on policy in the broad sense, rather than only looking at the statute and the plan.

1st DCA: Agreements that Require CIP Amendments are Legislative

In DR Horton v. City of Jacksonville, the First District got past the procedural complications of a mayoral veto (see the Payne II case in Miami as well), to give us a clear rule: the approval by a local government of a a fair share concurrency agreement under s. 163.3180(11), and presumably a development agreement under 163.3220, is a legislative act if implementing it will require the local government to amend its comprehensive plan's CIP or transportation element's list of improvements.

The question was whether approving an ad hoc "fair share" agreement under 163.3180(11) was a legislative act subject to veto by the Mayor (which happened), or a quasi-judicial act not subject to veto. The whole thing got bogged down in the "functional analysis" of Snyder, but the courts got through it looking at the substantive effect. Because the agreement required amendments to the CIP for new road improvements, the court found that under Coastal Development and Yusem the act had to be legislative.

Note 1 - the events in this case occurred before the Legislature gave us the "proportionate share methodology" provisions of 163.3180(12). Instead, the City/County was proceeding under 163.3211, which provides that

In order to limit the liability of local governments, a local government may allow a landowner to proceed with development of a specific parcel of land
notwithstanding a failure of the development to satisfy transportation concurrency, when all the following factors are shown to exist:
(a) The local government with jurisdiction over the property has adopted a local comprehensive plan that is in compliance.
(b) The proposed development would be consistent with the future land use designation for the specific property and with pertinent portions of the adopted local plan, as determined by the local government.
(c) The local plan includes a financially feasible capital improvements element that provides for transportation facilities adequate to serve the proposed development, and the local government has not implemented that element.
(d) The local government has provided a means by which the landowner will be assessed a fair share of the cost of providing the transportation facilities to serve the proposed development.
(e) The landowner has made a binding commitment to the local government to pay the fair share of the cost of providing the transportation facilities to serve the proposed development.

This provision preceded the "proportionate share" provisions of 163.3180(12). Jacksonville's "means" was a fair share ordinance that provided for calculating a fair share of improvements.

Note 2 -- Four functional problems dotted this case. First, there were no programmed improvements to the most directly affected roadway. The developer proposed fair share improvements to other roads to address traffic impacts (which is permitted now under 163.3180(12)). The City accepted that list. The second problem was that the affected road would fail and the improvements would not change that. The third problem was that Jacksonville doesn't have impact fees or other assessments that apply to new development absent a concurrency failure, so there's no long term funding to address long term development impacts and the need to meet concurrency. Finally, the City did not propose any way to address the concurrency failure over the long term, or even to demonstrate how or when the proffered fair share payments would be applied to the other improvements.

Most of these deficiencies would be addressed under 163.3180(12) save the existence of the impact fees and other means to make the plan financially feasible.

But the functional and procedural aspects aside, the court's decision provides some clarity as to how development agreements should be treated. I have been of the opinion that they are generally legislative (since they establish vesting for regulatory purposes), but there have been many different opinions. We now know that at least one class of such agreements will always be legislative.

Mediation under 70.51 Stays Time to File Cert

In Peninsular Properties v. City of Bradenton, the 2d DCA reversed the circuit court and held that a request for mediation under s. 70.51 (Bert Harris, part II) stays the 30 day window for filing for cert review. The circuit court had dismissed Peninsular's petition, holding that the statutory tolling provision was an unconstitutional invasion of the Florida Supreme Court's jurisdiction over procedural matters. The District Court reversed, holding (sensibly) that the statute provided a "mixed" substantive and procedural remedy, and that the purpose of the statute required that the time to file be tolled.

Right outcome, probably to the chagrin of the many, many local government attorneys who dislike (and try to undermine) the mediation provisions of the statute. I have been in the position of filing a 70.51 early, then filing a cert petition (or 163.3215), and then requesting that the cert review be tolled. I've had that request denied, which now would probably constitute an abuse of discretion.

The argument here focused on the procedural/substantive debate in treating the statute as "tolling" the time to file; Peninsular apparently did not argue the potentially easier argument: that the statute effectively tolls the rendition of the quasi-judicial order of the local government during the pendency of the meditation. Understood that way, the statute effects the actions of a state or local government agency or board and therefore doesn't even implicate the constitutional issues. Several decisions (not on this statute) interpret tolling provisions that way. This would have another salutary effect that is completely consistent with the intent of the statue: because the decision would be non-final, the local government would be in the position of "reconsidering" it in light of the special magistrate's report, rather than having to undo it or rework some other way.

I understand that Bert Harris is likely to be opened up again next year - maybe this is a fix that everyone could agree on as a way to limit the cost and expense of litigating over these matters and provide a second chance for a local government to hear a contested issue after the real issues leading to a denial are more thoroughly explored.

Ok, An APA Geek Case to Be Sure, But Important for Appeals

In Cocktails Plus v. Dep't of Prof & Bus. Svc, the 1st DCA held that it had jurisdiction over an appeal of a Final Order. The agency issued a "Final Order" on February 19, 2007. That "order" did not include rulings on the exceptions to the DOAH judge's Recommended Order. The agency then issued an Amended Final Order on March 9, 2007.

The Court issued an order to show cause why the appeal should not be dismissed:

Upon the Court's own motion, the appellant is hereby directed to show cause,
within ten days from the date of this order, why this appeal should not be
dismissed as untimely. Specifically, it appears to the Court that an earlier
final order was entered by the Division on February 19, 2007. Because it is
unclear to the Court whether the changes made by the Division in its "Amended
Final Order" were material, it is not apparent whether the instant order
restarted the time to file an appeal. See St. Moritz Hotel v. Daughtry, 249 So.
2d 27 (Fla. 1971); Maxfly Aviation Inc. v. Capital Airlines Ltd., 843 So. 2d 973
(Fla. 4th DCA 2003). The appellant shall attach to the response copies of the
February 19, 2007, original final order, as well as any motion that may have
delayed rendition of this order. If any additional pleading or order is
referenced in the response, a copy of the document shall be attached to the
response. Failure to timely comply with this order may result in the imposition
of sanctions, which may include dismissal of the appeal, without further
opportunity to be heard. See Fla. R. App. P. 9.410

When it looked at the orders, it decided that the agency's failure to address exceptions in the first order rendered it "non final" (despite its title) and that the Court therefore had jurisdiction. Here's the language, for future use:

The Final Order, which had been filed with the agency clerk on February 19,
2007, was not final and therefore did not start the time to file a notice of
appeal. Cf. St. Moritz Hotel v. Daughtry, 249 So. 2d 27 (Fla. 1971); Maxfly
Aviation Inc. v. Capital Airlines Ltd., 843 So. 2d 973 (Fla. 4th DCA 2003).
Specifically, the Final Order did not consider, or make explicit rulings on,
the exceptions to the recommended order that were filed by the appellant. See
§ 120.57(1)(k), Fla. Stat. (2006). An administrative order that does not
bring the administrative adjudicative process to a close does not dispose of
the case and is not final. See Hill v. Division of Retirement, 687 So. 2d
1376, 1377 (Fla. 1st DCA 1997).

SO, all you folks out there, we now know that an Amendment in a Final Order to address exceptions is a material change that resets the appeal date.

Moreover, based on this opinion, if a Final Order does NOT address exceptions the order is not actually final. Therefore, the proper course of action would be to file for rehearing/reconsideration, rather than a notice of appeal to get the exceptions considered. But what happens if you file the motion for rehearing/reconsideration and the agency does nothing before your time to appeal runs? Do you have to file your appeal (to what is now, legally, a non-final order) by the 30th day? I would. What happens if the more narrow window for filing a motion for rehearing closes? Have you waived your right to complain?

Any comments from APA gurus?

Sarasota County Claims Concurrency Allows It to Retire Existing Capacity Debts on Backs of New Users - Big Case Coming

In Save Our Septic Systems v. Sarasota County, the 2d DCA reversed (in part) summary judgment granted to Sarasota County in a case involving mandatory hook up fees being charged to sewer system customers. A key issue is Sarasota County plan to use a bunch of the money to pay back existing debt in the system and the relation of that to the calculation of the connection fee.

It is unclear how much the 2d DCA understood of the County's arguments, but the court thought the County argued that because of the concurrency requirement, the County must provide new infrastructure and in that case, if bonding or financing requirements demand that old debt (for old capacity for existing users, not future users) must be retired, such payments are a "cost" for the new infrastructure that can be charged to the new users.

This is radical!!! Understand -- the County is claiming that the requirement that impact fees be used to provide new capacity and not be used to cover costs for existing users is trumped by "financing requirements" and the concurrency requirement. The County attempted to use this to avoid providing the actual cost-accounting type approaches that would distinguish the actual capacity used by the new users and paid for by previous debt and force a blanket pay back.

The 2d DCA reversed summary judgment for the County, requiring the circuit court to make a record and reach conclusions on the cost-accounting issue, but clearly was a bit non-plussed about the nature of the cost accounting arguments:

Although the record does not conclusively establish how this impact fee was calculated and the intentions regarding the specific allocation of any revenues received from the fee, the parties have presented general arguments regarding the proper calculation of the fee or the proper use of revenue collected from the fee. SOSS argues that the capacity fee cannot be used to pay off any existing County debt or to pay for expansion other than in an amount that directly and strictly relates to the impact of these new users.

The County, however, points out that modern financing requires the payment of existing debt to permit further expansion. The County notes that other states have expressly recognized that impact fees can be used to pay the debts incurred in building capacity for the future. See, e.g., Airwick Indus., Inc. v. Carlstadt Sewerage Auth., 270 A.2d 18 (N.J. 1970). In addition, the County argues that concurrency now requires that an expansion of the sewer system must include a provision for excess capacity to ensure the efficient use of capital and to ensure that the County can accommodate new growth as it occurs.

Given the concurrency requirements now in place and the modern requirements for financing capital expansion as discussed above, we are inclined to reject SOSS's arguments that the revenues from an impact fee can never be used to pay existing indebtedness or that the amount of the impact fee cannot be based in part upon a recognized need for future capacity. Nevertheless, the supreme court's distinction between the proper use of impact fees to finance reasonably anticipated costs of expansion versus the prohibited use of such fees to pay for the existing system as a whole remains in place. See Contractors & Builders Ass'n, 329 So. 2d at 320-21; St. Johns County, 583 So. 2d 635, 637-39; Volusia County v. Aberdeen
at Ormond Beach, L.P., 760 So. 2d 126, 134-36 (Fla. 2000).

This distinction requires the circuit court to carefully review the calculation of the impact fee and the intended expenditures from the revenue generated by that
fee to assess whether the fee meets the dual rational nexus test. That is, the circuit court must assess whether the County has met its burden of demonstrating a reasonable connection or rational nexus between the need for additional capital facilities because of the anticipated new users of the system who will pay this fee, and a reasonable connection or rational nexus between the intended expenditures of the collected funds and benefits accruing to those new users. See Aberdeen at Ormond Beach, L.P., 760 So. 2d at 134.2 Because disputed issues of material fact remain in this record as to the calculation of the fee and the intended use of the revenues
from the fee, summary judgment on this count was improper.

To clarify. If a local government at time 1 takes on 10M debt in order to provide future infrastructure for 20 years, there is nothing wrong in having an impact fee paid by users who come on in years 1-20 used to retire that debt.

However, if the year 1 debt provides capacity and quality improvements for existing users AND provides additional capacity for new users, the existing users must repay that portion of the cost applicable to the existing user base.

What Sarasota County and a number of other jurisdictions are doing is playing a game where they claim that quality improvements (like bringing drainage, sidewalks and lane width) to existing roads to meet current standards can be 100% charged to new development in the impact fees. So far, they are getting away with it by claiming that they wouldn't bring their own infrastructure up to these standards (ever) and that it's new development that "triggers" the need to spend the extra money. Right. This is just another approach to the political game of "existing residents don't to pay for the quality of roads, environment (storm water), water and sewer that they want, so the politicians conveniently blame it on new development and hand the new development the bill."

It appears to me (but we won't know until the circuit court reviews this case on remand) that Sarasota County tried to play a similar game with these charges. We'll see what happens next.