4th DCA - No Repeal Referendum for Small Scale Amendment and Rezoning (take that Blackner!)

In City of Lake Worth v. Save Our Neighborhood, the 4th DCA gave Hometown Demogogcy founder Leslie Blackner a black eye when it rejected the lower court's decision that allowed a recall referendum to be initiated against city ordinances that adopted a small-scale plan amendment and rezoning.

At issue was Section 163.3167(12), which prohibits any initiative or referendum for plan amendments affecting five or fewer parcels. The statute was adopted specifically to ensure that small scale plan amendments would not be subject to referendum when the status of those amendments as legislative versus quasi-judicial was still at issue.

Ms. Blackner and Ross Burnaman misled the Florida Supreme Court into error in the Hometown Democracy ballot summary case, and Burnaman helped with the 2d DCA's St Pete Beach debacle, by arguing that the prohibition of some initiatives regarding plan amendments indicated legislative approval of all others (though this was clearly NOT the intent).

Now Ms. Blackner argued that the statute didn't prohibit using a referendum to repeal a small scale plan amendment and rezoning on the basis that parcels other than those subject to the amendment and rezoning were "affected" by it. Somehow, they got the trial court to buy this clearly ridiculous argument, which would effectively gut the restriction totally. The Fourth didn't buy it and overturned the circuit court.

4th DCA - 4 Limitation on Inverse Condemnation for Illegal Exaction and Stealing Doesn't Offend Public Policy

In a probably correct opinion that is marred by very bad discussions of public policy, the 4th DCA held in New Testament Baptist Church v. FDOT that the lower court properly dismissed a counter-claim/cross-claim for inverse condemnation brought 13 years after an allegedly illegal dedication demand.

The claim was brought by a church that had been required to dedicated 7.5 acres (of its 19) in 1992 for streets (that the city didn't build) in order to get a plat approval. When the DOT went to condemn more of its property in 2005, the church cross complained that the earlier dedication was illegal.

The 4th cites a bunch of other cases finding that inverse condemnation cases need to be brought within 4 years. The cited cases, however, involved direct regulation, not exactions. The court distinguishes several exaction cases where the claim was made much later than the regulatory requirement.

The disturbing issue is the court's treatment of the question of whether an unconstitutional exaction is void or voidable. The court noted that contracts or other actions that are in violation of public policy are void. The court then holds that even an illegal dedication requirement doesn't implicate public policy because only the victim of the illegal act is harmed. The court goes on to justify this position by claiming that the church "benefitted" from the plat. This totally flies in the face of the "unconstitutional condition" cases that Nolan and Dolan spring from, which recognize that where the government imposes an illegal and unconstitutional condition on a government action on a permit or benefit, the victim does not need to refuse to accept the benefit in order to complain.

The Court forgets the basic tenet: the issuance of a development order is not a "benefit" to the landowner because the landowner has an underlying property right to develop. The development order is the governments' OBLIGATION arising from its choice to regulate a property right in the public interest; a landowner's development pursuant to a plat is not the "acceptance of a benefit" from the government because the landowner has the underlying right in the first place.

Fla Supremes Release Opinion in Walton County Beach Case

I'll provide analysis later (hint- IMHO Justice Lewis' dissent is dead on and the majority opinion is not), but here's the link to Walton County v. Stop the Beach Renourishment.

Supreme Court Totally Reverses Strand on Rehearing

In Strand v. Escambia County, (opinion on rehearing), the Florida Supreme Court reconsidered its earlier decision and reversed it entirely.

Under the new decision, local governments, school boards, special districts, etc., can issue bonds that may be repaid in all or part with ad valorem tax monies without a referendum approval so long as the covenants clearly state that the ad valorem taxing authority is not being pledged to pay the bonds; that is, that the bondholders cannot sue to force the government to raise or levy ad valorem taxes to repay the bonds.

In separate opinions, it validated bonds issued by Community Redevelopment Agencies that are payable with tax increment financing funds City of Parker v. State, and Bay County v. Town of Cedar Grove. The Cedar Grove case is particularly interesting because the tax revenues involved are levied only be the County, but fund a CRA within a city that doesn't levy ad valorem taxes (go figure!)

I'm sure there will be LOTS of analysis in coming days, so I just wanted to flag the case right away. It certainly involves the most significant reversal on rehearing by the Fla Supreme Court I've ever read.

4th District - Court Enforcement Orders Cloud TItle

In Henly v. McDonald, 971 So.2d 998 (Fla. 4th DCA 2008), the court found that the existence of a code enforcement action against property constitutes a cloud on the title. This case involved a dispute over a home sale when the code enforcement action was brought while the property was under contract, but the key finding is critical in other areas.

By clouding title to the property, the imposition of a code enforcement order or lien impugns the property and therefore implicates the due process clause -- substantive and procedural - and could involve 42 USC 1983 - including damages if the order is improperly applied or prosecuted.

Section 162.06(5) provides that setting a code enforcement matter for hearing puts notice disclosure requirements on a property owner selling the property. Harm therefore can attach to the property owner based only on the code enforcement officer's non-noticed, non-hearing determination that a violation exists. The statute therefore creates the possibility of

a pre-hearing deprivation of property. This is in addition to the (uncorrected) problems in the statute and many ordinances identified in Massey v. Charlotte County and Wilson v. County of Orange.

11th Cir Reverses District Court Decision NOT finding commece clause violation

in Cachia v Village of Islamorada, the 11th Circuit reversed a decision by a different district court judge that had dismissed a commerce clause claim against Islamorada's "formula retail" ordiance.

The 11th found the complaint stated a cause of action and remanded for proceedings. What will be interesting to see is whether the Plaintiff will be able to establish the critical facts at trial that were stipulated in Island Silver & Spice.

11th Circuit Upholds District Ct Holding in Islamorada "Formula Retail" Case

In Island Silver & Spice v. Islamorada, the 11th Circuit upheld the District Court's determination that the Village of Islamorada's "formula retail" ordinance violated the commerce clause.

While the Court doesn't open a door wide for a new way to attack land use restrictions wholesale (and the reach may be limited by the type of facts to which the city stipulated), this opinion needs to be studied by government and private attorneys alike.

Back in the Blog

Not many land use cases in the last six months, but a few good ones. Still waiting for the Supreme Court decision in the beach/erosion control line case. Good to be back.

Best to all -
Robert

2d DCA - Standing for Cert Review Must Be Established at Hearing

In an opinion certain to create further chaos before local commissions, the Second District in City of Ft. Myers v. Splitt et al, held that certain citizens and citizens groups had not established sufficient standing to maintain a certiorari challenge to the approval of a PUD ordinance.

The City approved a PUD. Neighbors and activist groups opposed it at the hearing, then brought both a certiorari challenge and a 163.3215 consistency challenge, which was later dropped.

The City claimed before the circuit court that the various petitioners had not demonstrated facts sufficient to establish standing under Renard v. Dade County for determining whether special damages are present. The Petitioners disagreed. The Circuit court found that the 163.3215 definitions of affected parties governed and ruled for the Petitioners.

The Second DCA found that once the consistency challenge was dropped, the Renard standing test applied, and that the facts in the record could not establish standing per Renard. The Court found:

We reject any suggestion that Mrs. Splitt et al. had standing even under
the more restrictive requirements of Renard and that the circuit court's failure to
apply the correct law therefore was harmless error. Standing under the Renard
special damages test is typically based on some impact on the litigant's
interest as an owner of property. See, e.g., Kagan v. West, 677 So. 2d 905,
908 (Fla. 4th DCA 1996); Pichette v. City of N. Miami, 642 So. 2d 1165,
1165-66 (Fla. 3d DCA 1994); State ex rel. Gardner v. Sailboat Key, Inc., 306
So. 2d 616, 618 (Fla. 3d DCA 1974). There is no warrant for concluding that
if the circuit court had applied the correct law, it would have determined
that Mrs. Splitt et al. established their standing under the special damages test

Emphasis added.

Two critical problems will be accentuated by this decision as written. First, where a local ordinance does not specify who is a party and who has standing to appeal, a bunch of time will have to be spent establishing standing facts before the local commission. You can just see the issues - neighbors will quite properly start demanding 20-30 minutes so that they can enter sufficient facts to establish standing/party status.

Second, the Second District was clearly led into mis-stating or mis-interpreting the Renard rule as being somehow tied to "ownership" when it clearly was not. The Renard test turns on whether the complaining party can establish an interest that is protected by the ordinance involved, and affected by the decision, to a different extent than the community at large. Renters and frequent users of property (or roads, etc.) affected by a decision could establish such interests. Furthermore, nothing in Renard would prevent associational standing as otherwise established in Florida law.

2d DCA - Code Enforcement Costs/Liens - Strictly Construed

In Stratton v. Sarasota County, (which is a partial end to a long sad story), the 2d DCA held that the costs that the County could recover pursuant to Code Enforcement proceedings under Chapter 162 were strictly limited to the costs described in the statute. Essentially, the County tried to collect for administrative management/overhead costs in excess of the actual costs involved and the Court said no.

But the important issue is that the Court upheld the meaning of Article I, Section 18 by limiting Sarasota County's ability to levy fines in the code enforcement process to those expressly permitted by the statute.

A Totally Useless Annexation Decision

While the participants surely understand the impact of the followign opinion, I'm sure that the rest of us don't.

Presumably, Hernando County lost before the circuit court and then won before the Fifth on the basis of the McBride case - which dealt with "compactness" as a criterion for annexation (not "pockets"), but without much explanation.

Here's the entire opinion:

Petitioner is challenging two annexation ordinances on the basis that they
create an impermissible “pocket” of unincorporated area within the municipal
boundaries. Concluding that the lower court departed from the essential
requirements of the law, we grant the petition and quash the lower court’s
order. See City of Center Hill v. McBryde, 952 So. 2d 599, 603 (Fla. 5th DCA
2007).
PETITION GRANTED; ORDER QUASHED.

The Fifth keeps behaving in very unpredictable ways in these cases. Compare its treatment in the City of Cocoa case. One can only conclude that the treatment one of these cases gets in this District is totally dependant on the panel you pull rather than the facts of the case.

Fifth District: Finder of Fact Bound by Stipulations to Facts

In an opinion that may be important to attorneys settling disputes over land use issues, the Fifth District in Seminole Electric Co-op v. Dep't of Envt'l Prot. remanded a final order denying an electric plant siting permit to the Secretary with directions to enter an order approving it.

The long and short is that pursuant to certain provisions of the Siting Act, all the parties to an administrative proceeding entered stipulated facts that covered all of the relevant criteria set forth in the Act. The Secretary (whether for political or policy reasons, we don't get to know) tried to remand it to DOAH to get "more facts". When it was pointed out that the Act didn't permit this, the Secretary denied the permit, claiming that the "sparse record" didn't allow the required findings.

The Fifth reversed. The Court found that the stipulations were binding and were complete as to all the required findings. The Secretary could not reject the stipulated facts as insufficient or incomplete when the agency below and the other parties had found them complete, and based on the stipulated facts, there was no basis not to grant the permit.

This is a roadmap for settling other cases that end up in quasi-judicial hearings. While under Chung and other "contracting away the police power" cases, the local government can't enter a settlement agreement that promises that a permit will be granted, it CAN enter a settlement as to all the stipulated facts that will govern a decision (including statements, for example, that the staff finds the application consistent with all elements of the comprehensive plan). This effectively leaves the decision making body with no discretion to deny the permit.

Decision -Maker Can't Testify in Matter

In Verizon Bus. Svcs et all ve Dep't of Corrections et al, the First District reiterated a simple proposition that seems to escape courts reviewing local government decisions: it is a fundamental violation of due process for an administrative decision maker to also provide testimony (evidence) in the matter decided.

This case involved a bid dispute in a matter where the Secretary made the bid determination. The challenger (disappointed bidder) took the Secretary's deposition. The ALJ recommended dismissal, and the Secretary (rather than an appointee) issued the final order of dismissal. The aggreived vendor appealed and the First District reversed and remanded for a decision by a neutral appointee, noting that there is no no way that a decision maker can impartially reveiw a decision based on in any part on his or her own testimony (this is the Ridgewood Properties principle). The Court also noted that this was a violation that survived the failure to raise it before the tribunal, because it is fundamental.

How basic. How simple and obvious. How lost on courts reviewing local government decisions, where the commissioners chime in with their own views of a matter or statements of fact regarding the petition - often after the record is closed - in making decisions. This case should be cited when challenging decisions where a commissioner makes prejudicial or other statements on the record that are relied on for the decision later.

Fla Supremes - The Governor Can't Sign "Compacts" - Separation of Powers Still Rules in Fla.

In Florida House of Representatives v. Hon. Charles Crist, the Florida Supreme Court exercised original jurisdiction (writ of quo waranto) to hold that the Governor's approval of a gambling compact with various tribes was outside his constitutional authority because the compact permitted violations of state law.

The Court held that even under the apparent federal authority, the gambling permitted bythe compact was prohibitted by legislation, and the governor therefore had no power to enter such a compact. The Court did not reach the question of whether or when the Governor could sign a compact that did not otherwise directly violate state law; or whether such a compact would have to be ratified first.

On one hand, this is a fairly bread and butter separation of powers case. On the other, it demonstrates that we all need to become way more familiar with the writ of quo waranto - I suspect that we will be seeing it more often as a way to challenge the authority of executive actors to take certain actions (as beyond their delegated authority, when the APA doesn't control it), and perhaps against local governments to prevent actions that violate state law.