Sunny Isles v. Temple B'Nai Zion

In Sunny Isles v. Temple B'Nai Zion the 3d DCA quashed a writ of mandamus that had been ordered against the city to prevent it from enforcing a historic site designation pending futher proceedings against the designation. The 3d DCA found that the circuit court had, de facto, entered a temporary injunction that did not meet the requirements of Fla. R. Civ. P 9.130 and quashed the writ.

Practice note -- sometimes, the form of the pleading matters. Of course, the Temple got the delay it wanted (or at least most of it), but it could have left itself open to sanctions -as might future attorneys who try to use mandamus in lieu of injunction under similar circumstances.

3d DCA - Limits on the Use of Estoppel or Laches against Gov't in Code Enforcement

In Monroe County v. Carter the 3d DCA quashed the circuit court's quashal of a code enforcement order. The circuit court found that that the County was barred by laches or estoppel from enforcing the code against a ground floor (below flood elevation) rental unit in Ms. Carter's house. The 3d DCA disagreed and distinguished the earlier Castro decision becuase the unit here had never been permitted.

3d DCA - Circuit Courts Must Issue Opinions when Quashing

In Dade County v. Tolbert the 3d DCA reversed the circuit court quashal of the denial of a "plat rezoning" because the opinion did not state the basis for reversing the BOCC. The 3d held that this amounted to a "per curium reversal" and departed from the essential requirements of law.

3d DCA - More on Takings and Statute of Limitations in Monroe County BUD cases

In Beyer v. Monroe County, the 3d DCA reversed a trial court determination that the plaintiff's takings case was barred by the statute of limitations. This is another case where the existence and use of the "beneficial use determination" process available in Monroe County establishes the date that a takings case accrues, as opposed to the date of adoption. Required reading for anyone looking at filing takings claims, as are the other recent 3d DCA opinions coming from Monroe County, because they illustrate the interaction of ripeness, administrative remedies and "as applied" vs. facial takings claims.

5th DCA Mangles the "As Applied" Requirement of the Bert J. Harris Act and Confuses Reasonably Foreseeable, Reasonable Investment Backed Expectations

Citrus County v. Hall's River Development, 8 So. 3d 413 (Fla. 5th DCA 2009)

In 2002 the Citrus County Commission approved a rezoning and development plan, which neighbors then challenged as inconsistent with the comprehensive plan. A plan designation adopted in 1997 limited development density around lakes to 1 unit per 20 acres, but (and the 5^th DCA ignores this critical component of the trial court's analysis) also had a provision allowing the County Commission to approve higher densities and uses consistent with the existing zoning/land use designation. This property had a "generic" zone district and an existing RV/camp park. Based on this combination of existing uses and density, the planning staff and eventually the county commissioners thought the property was vested for density and qualified for the exception in the comprehensive plan.

The rezoning was challenged under § 163.3215 as contrary to the low density land use designation, and the circuit court in that case sided with the neighbors, holding that the plan didn't allow the rezoning or use. Based on this new 2002 court interpretation of the effect of the 1997 comprehensive plan amendment, the developer sued under the Bert Harris Act and won at the trial court level. However, the 5th DCA, not liking the outcome, went searching for reasons to overturn the circuit court decision. In the process, the 5^th DCA avoided key facts and misinterpreted the Act.

Under the Act, a landowner may seek compensation when a specific action of a governmental entity inordinately burdens either a vested right or an “existing use” of property. One of the definitions of an "existing use" is a "reasonably foreseeable, non-speculative land use that is suitable for the real property, compatible with adjacent land uses, and that has raised the fair market value of the property . . . " (a "reasonably foreseeable use"). One of the definitions of an inordinate burden is that a property owner is permanently unable to realize "reasonable investment backed expectations" in the vested right or existing use.

Here, the 5^th DCA determined that the suit was filed too late under the Act, which requires the property owner to provide a notice of claim to the government entity involved within 1 year of the application of a new statute, regulation or ordinance that inordinately burdens real property. A "specific action of a government entity" is a defined term that specifically includes action on a permit or application, i.e., the application of a statute, regulation or ordinance to the particular property at issue. Within the Act there are various internal references to the application - rather than adoption - of statutes, regulations or ordinances, which clearly establish that a property owner must make some kind of application and have it acted upon or suffer some form of enforcement action, before filing a claim. This was also the interpretation of all of the commentators who wrote about the Act. So, if the prior property owner had made a claim in 1998 against the adoption of the plan amendment, the County's correct defense would have been that it was premature until an actual application had been made and denied, giving the County a chance to determine whether other provisions of the plan allowed relief from the objective density limits in the designation.

The 5^th DCA paid no attention to all of this evidence that specific action on an application or permit was the trigger for a government action that creates liability, and determined that the mere adoption of some ordinances - or plan policies - can be the “specific action of a government entity” that triggers the 1 year requirement. The 5^th DCA opined that where a comprehensive plan or other regulation includes a clear and objective standard (like height or density), the mere adoption of the ordinance "applies" that ordinance to property and triggers the one year challenge period. The 5^th DCA found that the plan designation had that kind of objective limit - completely ignoring the plan provision that authorized the County Commission to allow additional uses and densities - a provision whose effect could not be determined until an actual application was made.

The 5^th DCA then used its interpretation of the plan provision to hold that the use permitted by the overturned rezoning could not have been a "reasonably foreseeable, non-speculative land use." Even though the planning department thought the rezoning and use/density were permitted under the plan (and existing zoning), even though the County Commission thought it was consistent with the plan, and even though it took a "consistency challenge" by neighbors to determine that the development was not consistent with the comprehensive plan, the 5^th DCA determined that the developer had no right or ability to rely on the interpretations of those professionals before proceeding, and that a development that is (later determined to be) inconsistent with the plan cannot be "reasonably foreseeable."

The 5^th DCA also applied this distorted view of the facts to the Circuit Court's determination that the property had been inordinately burdened, holding that the owner could not have had "reasonable investment backed expectations" because he closed on the property after the adoption of the plan amendment that (the Court reasoned) prohibited the development. This interpretation ignores U.S. Supreme Court and Florida appeals court precedent (Pallazzolo v. Rhode Island and Vatalaro v. DEP) that hold that the purchase of property subject to a regulation does not prevent one from having "reasonable investment backed expectations" in a regulated use where the application of the statute or regulation would affect a taking.

The Court found that the developer could not have relied on the County staff representations of the comprehensive plan because they were (later found to be) legally incorrect, and that this precluded the landowner from having either an "existing use" (in the form of a reasonably foreseeable use) or an "inordinate burden" (because there was no reasonable expectation). This is a misinterpretation of the Act. While under Florida law "vested rights" against the application of a regulation are not created by a legally incorrect statement by a government official ("yeah, I think you can fill that wetland"), the District Court mistakenly ties this doctrine to whether a landowner has a "reasonably foreseeable use" or "reasonable investment backed expectations."

The 5^th DCA’s holdings fly in the face of the legislative intent that the Act provide a remedy for property owners harmed by the application of statutes, regulations and ordinances adopted after 1995. However, if, as occurred here, the adoption of a new, post-1995 law precludes a landowner from having a "reasonable investment backed expectation" then the only people with a cause of action are those who had already had established vested rights at the time the new law was adopted. The District Court's analysis incorrectly makes "reasonable investment backed expectations" and "reasonably foreseeable uses" under the Act dependant on the landowner's ability to establish the existence of a vested right. This is demonstrably wrong: the first part of the cause of action separately protects BOTH vested rights and "existing uses," but the 5^th DCA’s formulation requires a property owner to have a "vested right" in order to have both a right that would be inordinately burdened and a reasonably foreseeable use. The District Court's combination of incomplete treatment of the relevant plan provisions and errors in analysis have the effect of writing protection for "reasonably foreseeable uses" out of the Act, a result that is inconsistent with both the intent and the language of the Act.

1st DCA Confirms that Local Governments Must Issue Development Orders for Development as Defined Locally and Under Sec. 380.04, Fla. Stat., for Evalua

Johnson v. Gulf County, 26 So.3d 33, 34 Fla. L. Weekly D2625b (Fla. 1st DCA December 22, 2009)

In Johnson v. Gulf County, the 1^st DCA (on this case’s second trip from the circuit court to the 1^st DCA), held that (1) a landowner was required to obtain a development order to fill certain lands alleged to be wetlands and to subdivide his property into 5 lots, so that (2) the complaining neighbors could bring a §163.3215 challenge against the action.

This action started in 2006. A landowner got a determination from FDEP that his property did not include jurisdicational wetlands of the state. He then began to fill them. He also used provisions of the Gulf County land development code to split one parcel and rearrange parcel boundaries so as to create five lots from what had previously been three, all without going through the County’s subdivision process.

The neighbors complained that the filling violated the comprehensive plan, and also tried to bring claims under § 163.3215. The County claimed there was no need for any development permit or order (under the County code) and therefore nothing to challenge. The neighbors also claimed that the subdivision of the property violated the local ordinance.

In the first go-round, the circuit court dismissed the neighbors’ claims without leave to amend. The 1^st DCA reversed, stating that the neighbors had to be given the chance to amend the complaint, but stating nothing about the substance of the matter. On remand, the circuit court dismissed the amended complaint.

The circuit court held that the filling of the wetlands (assuming they were) did not materially alter the use, density or intensity of use of the land. It found that no development order was necessary and that even if one was necessary, the filling of non-jurisdictional wetlands was not inconsistent with the plan. It also found that the “lot split/reconfigure” process used did not require full subdivision approval.

The 1^st DCA reversed. It looked at the County’s plan, which included requirements that wetlands get certain protections, and determined that nothing in that plan (or the land development code) stated an FDEP determination that a wetland is not jurisdictional means that it is outside the County’s jurisdiction. It also held (and this is important to people in a lot of areas) that a minor replat process is also a development order

The 1^st DCA properly found that, under the definition of development in the Gulf County LDC (which is consistent with §380.04’s definition), clearing and filling land constitutes development. The Court held – and this is an obvious step (see Das v. Osceola County) – that the County had to issue a development order for a landowner to engage in development. The Court also found unambiguous language in the plan that appears to limit development within 50 feet of wetlands, whether or not they are jurisdictional, and that certain language in the LDC could not limit the scope and reach of the plan. The Court ordered the landowners to comply with the requirements of the plan and code, ordered the County issue a development order for the wetland filling, and ordered the circuit court to conduct a de novo hearing on whether that development order is consistent with the plan.

The Court then did (again, appropriately) a de novo review of the provisions of the County’s subdivision regulations and found that the splitting/reconfiguring done here required a full subdivision.

M&H Profit, Inc. v. City of Panama City, 34 Fla. L. Weekly D2554b (Fla.1st DCA Dec. 14, 2009)

M&H Profit, Inc. v. City of Panama City, 28 S.3d 71, 34 Fla. L. Weekly D2554b (Fla.1st DCA Dec. 14, 2009)

In M&H Profit, Inc. v. City of Panama City, the 1^st DCA upheld a circuit court decision to dismiss a Bert Harris claim because the City had not applied a new law to the property simply by enacting a change to the zoning code.

Under the facts (at least as stated), the property owner would have a bad time under the Act. The owner bought commercially (C-1) zoned property in the City that, at the time, was not subject to any height restrictions. The owner apparently intended to build a 20 story condominium. The most critical fact in the opinion (if true) is that the comprehensive plan apparently did not allow residential development in that area or district (it’s unclear whether the zoning code and plan were in conflict).

The owner met with the City to discuss plans, and the City then adopted changes (apparently already in the works, but who knows) to the code to limit height to 120 feet with certain setbacks and 150 feet under any circumstance. The owner then met “informally” with the City Manager and got a letter indicating that the proposal would not be permitted under the amended C-1 zoning. The owner did not appeal, but his attorney wrote to ask if there was any way around it.

The owner then filed a Bert Harris claim, asserting that the adoption of the zoning change inordinately burdened its property by preventing the approval of the 20 story condominium project.

The circuit court dismissed, agreeing with the City that the owner could not maintain a claim because no application was ever made and that only “as applied” challenges can be raised under the Act.

The 1^st DCA upheld the circuit court decision. Citing the language of the Act, the Court noted that the plain language requires the application of law. Citing commentators who interpreted the Act as only providing an “as applied” challenge, the Court held: “Simply put, until an actual development plan is submitted, a court cannot determine whether the government action has “inordinately burdened” property.”\

Amazingly, the majority opinion makes only the most passing reference to Hall’s River:

Finally, appellant argues this case is controlled by Citrus County v. Halls River Development, Inc., 8 So. 3d 413 (Fla. 5th DCA 2009). It is unnecessary for us to address the correctness of that decision because we find it inapplicable in this case. Citrus County involved an amendment to a comprehensive plan which reclassified the land use category on a particular piece of property. In this case, we are dealing with adoption of a general land development regulation effective throughout an entire zoning district. Citrus County is, therefore, not controlling.

This opinion is in clear and direct conflict with Hall’s River and totally misstates the facts. The plan amendment in the Halls case did NOT apply only to the property in question.

However, the opinion does not stop there. Judge Wolf (former counsel for the Florida League of Cities) wrote the opinion and apparently could not help but include an otherwise totally unnecessary analysis of local home rule powers as justification for not broadly construing the clearly remedial Act. Judge Wolf creates from whole cloth an entirely new rule of law: “Thus, an interpretation of state statutes which would impede the ability of local government to protect the health and welfare of its citizens should be rejected unless the Legislature has clearly expressed the intent to limit or constrain local government action.” In this language, Judge Wolf takes Florida law regarding preemption (which Judge Wolf has helped expand to the point that the Legislature must use “magic words” to preempt local authority or to create uniform law) and raises it to an entirely new level. One imagines that there is a shrine to Article VIII of the Florida Constitution in his office, one that places the provisions governing home rule above every other provision in the document.

And it makes one wonder whether the Court’s “mis-cite” of Hall’s River – and attempt to avoid defining or certifying conflict – might not be an active attempt to avoid Supreme Court review of the opinon and its new home rule doctrine.

The dissent cites Hall’s River as a reason the landowner should be given the chance to make a case. I actually think that the majority opinion does the landowner a favor. Making a specific application for what he wants and being denied is the best way to demonstrate the effect of the ordinance and the only way to prove that the project could have or would have been approved under the prior ordinance – which (IMHO) would be central to being able to prove up the rest of the case under the Act.

Fifth DCA Reverses Itself, Circuit Court and Board of Adjustment to Hold that Special Use Permit was Inconsistent with Comprhensive Plan

Keene v. Zoning Bd. of Adjustment, et. al., 22 S.3d 665, 34 Fla. L. Weekly D2231a (Fla. 5th DCA Oct. 30, 2009)

The Zoning Board issued a Special Use Permit to conduct a horseback riding school and hold endurance trail ride competitions on land designated “Rural Residential” by Putnam County. The circuit court upheld the permit. In Keene v. Zoning Bd. of Adjustment, the 5^th DCA on rehearing, reversed the circuit court.

While the action is described as one for “declaratory relief,” review of the footnotes and the dissent clarifies that it was brought pursuant to §163.3215, Fla. Stat. The majority finds that the SUP was a development order (it permitted a material alteration in the use of land, if one parses §380.04), subject to challenge on the basis that the activity was inconsistent with the comprehensive plan. The majority then looks to language used by the applicant and the County to describe the use as “commercial: agriculture related” and comparies it to the Plan. The 5^th DCA concludes the Plan does not permit such uses in the “Rural Residential” land use category, but does permit “resource-based recreational uses.” The Court reviewed the record and determined that, based on how the Plan itself and the LDC are organized and interpreted, the uses clearly fall into the commercial realm and are not permitted.

The majority’s approach is consistent with cases like Dixon v. City of Jacksonville, Saddeh v. City of Jacksonville, and Bay County v. Harrison, holding (a) courts review the provisions of comprehensive plans de novo and do not give deference to local interpretation, and (b) plans are interpreted so that land uses not specifically permitted (or permitted by direct implication) within a land use category are presumed to be prohibited, particularly when they are permitted in other categories.

The dissent by Judge Griffin questions whether the SUP was a development order subject to challenge under § 163.3215. The dissent’s main focus and claim is that the majority essentially overanalyses the issue and ignores the provision of the Rural Residential category that permits “Activity and Resource Based recreational uses.” In her review of the record, Judge Griffin focused on the findings of the Zoning Board and the circuit court judges that tied the “boarding and riding school uses” more to recreational uses than commercial uses, and noted that commercial uses that are recreation-oriented were permitted. Judge Griffin also questioned the analytic approach to consistency. It appears she would hold in order to find a development order inconsistent with a plan, there must be a specific provision that is violated. I think this holds true with policies that involve development standards (prescribing wetland buffers, for example), but is much more problematic when it involves the uses permitted in particular land use categories.

This case is very interesting and important because even though they come to different conclusions, both the majority opinion and the dissent are doing exactly what the courts should be doing: digging into the meaning of the plan, the LDCs and the record to determine whether the local government is or is not acting within the boundaries of the Plan. By passing §163.3215, the Legislature instructed the courts to “act as super-zoning boards” in the interpretation of the plan.

As a side note, this is one of those cases where I read the opinions and think that I could have gone either way on the analysis. All in all, I think the majority opinion got too caught up in the staff’s early categorization of the use as “agriculture: commercial” and didn’t focus enough on whether the use could be considered “activity and resource based recreational.” That said, and without the benefit of the record, the combination of a boarding facility, a riding school, and endurance contests seems to me to push it into a commercial use that is not “activity based recreation.” I also recognize that rural areas did, do and should permit more flexibility in how the lands are used productively and I would probably lean the other way if there was evidence that other, similar types of uses in the area and in the same land use category had similar levels of activity and mipact. If this kind of commercial activity related to rural/agricultural uses was intended, the Plan should have included a definition or description of "activity based recreation" to include things like canoe/kayak rentals, riding/boarding facilities, etc.

3d DCA Holds that Law of the Case Precluded City from Reopening Hearing after Quashal

Dougherty v. City of Miami, 23 S.3d 156, 34 Fla. L. Weekly D2047a (Fla. 3d DCA Oct. 7, 2009)

The City Commission granted a special permit. The circuit court upheld the City’s decision. In Dougherty v. City of Miami, the 3d DCA quashed the circuit court decision following an earlier remand. The 3d DCA decision turned on the failure of the City Commission and the circuit court to adhere to the law of the case in the matter.

In earlier proceedings, the City had granted the special permit and the circuit court had reversed, finding that the City Commission’s authority was limited to appellate review of a Zoning Board decision and that the City Code required the City Commission to issue findings of fact. The circuit Court quashed the decision and remanded it to the City Commission to issue a written decision based on the record before the Zoning Board.

On remand, the City Commission conducted another de novo hearing and applied later adopted provisions of the Code. It then approved the permit with an additional condition. On first tier certiorari review, the circuit court held that the City Commission was permitted to conduct a de novo review because the code had changed.

The 3d DCA quashed the circuit court’s denial of certiorari, holding that both the City Commission and the circuit court were bound by the law of the case: The 3d DCA stated “[t]here is no doubt that the 2006 circuit court appellate decision actually decided that the City Commmission had to limit its review to the record received from the Zoning Board and that it was required to render findings of fact in support of its decision.”

A concurring opinion agreed that the law of the case applied and determined the matter, but (citing Snyder and GBV,) disagreed with the original decision. The concurrence is wrong. The City Code required that all agents, agencies or boards issue written findings concerning zoning matters. The concurrence incorrectly assumes that requirement would not apply to the City Commission sitting in a quasi-judicial capacity (whether appellate or de novo). However, where a governing body sits in a quasi-judicial capacity, it is exercising executive or administrative authority delegated to it by code or statute and is bound by those restrictions just as any “inferior” board or agency would be bound.

This is an important case. Even if it does not establish any substantive law, it clearly indicates that even under the restrictions on “quashal” under G.B.V., the circuit court’s order on certiorari review is binding on both the lower tribunal and later review by the court.

Fifth DCA – Legislative Intepretation and the Scope of the Agricultural Exemption fromERP Permitting

A. Duda and Sons v. St. Johns River Water Management District, 22 S.3d 622, 34 Fla. L Weekly D1454 (Fla. 5^th DCA July 17, 2009)

In A. Duda and Sons v. St. Johns River Water Management District, the 5^th DCA rejected the Water Management District’s efforts to construe the “agricultural exemption” language of Sec. 373.406(2), Fla. Stat., to make the exemption essentially meaningless – while also rejecting Duda’s interpretation that would focus on its subjective intent. The language at issue states:

Nothing herein, or in any rule, regulation or order adopted pursuant hereto, shall be construed to affect the right of any person engaged in the occupation of agriculture, silviculture, floriculture or horticulture to alter the topography of any tract of land for purposes consistent with the practice of such occupation. However, such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters.

The fight: the District took the view than any action that had the effect of more than “incidentally” impounding or obstructing any surface water was not exempt; Duda argued that the “purpose” language made the limit on the exemption dependant on proof of intent to impound or obstruct surface water. The Court rejected both, holding that intent was not at issue. But the court concluded that an alteration of topography had to be more than incidental and the Water Management District’s rules using that standard violated the statute.

While the decision is substantively important for people who practice in this area, what is more generally important is the Court’s (1) recognition that the issue was one for de novo interpretation of the statute (rather than for deference to the District’s interpretation) and (2) the approach the Court takes in resolving the language in the statute. This decision demonstrates the power of effective judicial review and why local government ordinances and interpretations should be subject to the same level of scrutiny.

The 3d DCA Makes a Good, But Tough Call on “Reverse Spot Zoning”

Miami Dade County v. Valdea, 9 So.3d 17 (Fla. 3d DCA 2009)

In this “reverse spot zoning” case, the circuit court had found that a single family home surrounded by non-residential uses was entitled to receive office zoning. The 3d DCA upheld the circuit court.

The dissent questions the decision because the “group homes” on at least one side of the property are classified as residential uses. The dissent also takes the circuit court and majority opinion to task for not simply looking at whether “competent substantial evidence” supported the denial. The dissent uses the circuit court’s detailed examination of the evidence for “reverse spot zoning” as sufficient in and of itself that the circuit court impermissibly reweighed the evidence.

The problem with the dissent’s position is that if the Board was legally incorrect in denying the rezoning because the evidence established that the denial would be “reverse spot zoning,” the circuit court would be obliged to cite all the evidence demonstrating the Board’s error. Under the dissent’s approach, if there was evidence to support a reason for denial, the circuit court would err in examining evidence proving that the denial was legally impermissible.

The dissent’s position demonstrates that the current standards of certiorari review are simply too lax and too deferential to the local government position to provide any meaningful judicial review.

First DCA Puts Another Nail in the Coffin of Due Process- Findings not Required for Denial of Plat

Alachua Land Investors v. City of Gainesville, 15 S.3d 732, 34 Fla. L Weekly D2163 (Fla. 1^st DCA July 17, 2009)

In Alachua Land Investors v. City of Gainesville the 1st DCA held that the City did not violate due process or the essential requirements of the law when it denied a plat without written findings. The Court cited G.B.V. Internat’l and Bd. of County Comm’rs v. Snyder for support. As I have written elsewhere, G.B.V. is improperly cited for this proposition because the language in the decision was purely dicta and the matter was not property before the Court. Similarly, Snyder only dealt with rezoning and did not over-rule other cases holding local quasi-judicial decisions had to have written findings.

The bottom line is that Justice Pariente got it right in her dissent in G.B.V. – as had been consistently determined by the courts previous to Snyder: effective judicial review of a quasi-judicial decision is impossible without written findings. These decisions deny due process to applicants and neighbors alike by allowing local tribunals to make up reasons for denying or approving an application in order to meet the facts in the record.

Updates Underway - Sorry for Being Gone So Long!

I've added a bunch of cases to the blog - and I still have some of the 3d and most of the 4th and 5th DCA cases since January still to go. This includes the 5th's hideous abortion in the Citrus County v. Hall's River case (though I got to the 1st's equally horrific Jacksonville v. Coffield opinion).

Happy reading!

3d DCA – Code Enforcement - Right but messed up

Monroe County v. Carter, 34 Fla. L. Weekly D993 (Fla. 3d DCA 2009)

OK - this is a rewrite of my original post, which was based on an incorrect reading of the opinion.

The 3d DCA accepted 2d tier cert review of the a circuit court decision that dismissed the notice of violation in a code enforcement case for failure to cite the date the violation began. The violation discussed (there were 6, only one is disccussed) invovled improper creation of habitable space below the FEMA line.

The objection below was that without a stated 'start date' for the violation, they couldn't state certain defences. The circuit court bought that by adopting provisions from the Part II citation standards and applying them to the notice of violation requrements under Part I. The 3d correctly determines that this was wrong.

The core problem in these cases tends to be that people get written up for doing unpermited work that violates current FEMA/flood control standards and other related violations where the work was done before they bought the place. So the owner doesn't know when or how the work was done. Add in really poor records management by local governments, and you find that the owner can't find permit histories going back 20-30 years.

Mmost local governments adopted FEMA standards around 77-78, and amended them a bunch in the mid-80's, and again in the 90's and again in the last 5 years, with the standards getting more and more strict. Add in again the fact that the bulding code only provides exemptions/grandfathering for permitted work. Add in again that the building code and local codes (and decisions interpreting them) put the burden of proof on the owner to establish grandfathering.

You end up with a situation where totally innocent owners are tagged with violations and can't get the proof they need to show that the property is grandfathered - and the code enforcement people don't really have to prove that a violation occurred when the construction or activity was first done.

So - I'm guessing that the circuit court saw this as a fairness issue and put its finger on the scales by using the "date violation occurred" langauge in the citation section to put the burden on the local government to prove that a current condition was illegal when it started. The 3d not only throws the legal mechanism out, but takes the view that requriing the government to prove that a current, non-conforming situation was a violation when it began would be too burdensome.