News - IT Security News - SC Magazine UK: "'Radical changes in the information environment have exposed a requirement for significant changes in the way law enforcement organisations address the ever-higher workloads brought about by the increasing use of technology in all areas of crime,' says Dr Andrew Jones of BT. ‘The US has created a total of 10 Regional Computer Forensic Laboratories led by the FBI which act as a one-stop, full-service, fast-turnaround forensics laboratory and training centre devoted entirely to the examination of digital evidence in support of criminal investigations.' "
Computer Forensics Attorney Lawyer Tampa
Thứ Ba, 12 tháng 12, 2006
Thứ Hai, 11 tháng 12, 2006
Court Dismisses Complaint as Discovery Sanction for "Extensive and Egregious Misconduct" : Electronic Discovery Law
Plasse v. Tyco Elecs. Corp., 2006 WL 2623441 (D. Mass. Sept. 7, 2006).: "In this wrongful termination case, defendant Tyco sought to prove that plaintiff had misrepresented his credentials when he applied for employment. At issue were several versions of plaintiff’s resume, some of which had indicated he held an M.B.A.; plaintiff suggested those may have been submitted by “someone else,” possibly a recruiter or headhunter, and claimed he would have indicated he was only a “candidate” for an M.B.A. Previously, Tyco had filed a motion to dismiss the case, alleging that plaintiff had lied at his deposition and fabricated documents. The court denied the motion without prejudice, finding that the evidence was not sufficiently clear and convincing to justify such a serious sanction.
Tyco then moved to compel the production of plaintiff’s laptop and further deposition testimony. The court granted Tyco's motion over plaintiff's objection, and ordered that plaintiff to submit to a further deposition by July 22, 2005, for the sole purpose of identifying computers and other media storage devices used by him during relevant time periods, and produce, by July 29, 2005, all computers and media storage devices presently in his possession, under his control or accessible to him, for inspection by Tyco’s expert.
The forensic inspection of plaintiff’s laptop and disks showed evidence of tampering, including: deleted resumes, system date and time manipulations, access histories showing that various relevant documents were accessed after the court’s order and before plaintiff’s second deposition, and other fragments of relevant documents and emails that had not been produced. Tyco filed a renewed motion to dismiss the complaint, alleging that plaintiff: (1) testified falsely during his deposition; (2) fabricated a resume to support his false testimony; and (3) deliberately deleted, destroyed, or concealed documents after he was put on notice that such documents were relevant. Tyco argued that the only appropriate sanction for plaintiff’s acts was dismissal of his complaint and an award of attorney's fees and expert costs.
The court agreed . . . ."
Tyco then moved to compel the production of plaintiff’s laptop and further deposition testimony. The court granted Tyco's motion over plaintiff's objection, and ordered that plaintiff to submit to a further deposition by July 22, 2005, for the sole purpose of identifying computers and other media storage devices used by him during relevant time periods, and produce, by July 29, 2005, all computers and media storage devices presently in his possession, under his control or accessible to him, for inspection by Tyco’s expert.
The forensic inspection of plaintiff’s laptop and disks showed evidence of tampering, including: deleted resumes, system date and time manipulations, access histories showing that various relevant documents were accessed after the court’s order and before plaintiff’s second deposition, and other fragments of relevant documents and emails that had not been produced. Tyco filed a renewed motion to dismiss the complaint, alleging that plaintiff: (1) testified falsely during his deposition; (2) fabricated a resume to support his false testimony; and (3) deliberately deleted, destroyed, or concealed documents after he was put on notice that such documents were relevant. Tyco argued that the only appropriate sanction for plaintiff’s acts was dismissal of his complaint and an award of attorney's fees and expert costs.
The court agreed . . . ."
Cybercrime and Cybersecurity
A Cybersecurity Pro Talks Shop: "Small businesses are increasingly being targeted with viruses and identity theft. This former White House adviser offers tips on playing defense . . . Howard Schmidt, former White House cybersecurity adviser (he served as vice-chair of the President's Critical Infrastructure Protection Board for 15 months, from 2002 to 2003) and current president and CEO of R&H Security Consulting, which works in both the public and private sectors, knows computer security inside and out.
He started working in the industry before it was big, as a city police officer in 1983, and spearheaded cybersecurity innovations in the both the public and private sector, most notably at the Air Force Office of Special Investigations, where he established the first dedicated computer forensic lab in the government. Schmidt also served as chief security officer for Microsoft (MSFT) from 1997 to 2002, and was vice-president, chief information security officer, and chief security strategist for eBay (EBAY) from 2003 to 2005.
Schmidt says that while small businesses have been slow to catch up to the security advances made by their larger counterparts, new technology allows them to employ the same level of protection affordably. Further, he says that now is the time to do it, since criminals are increasingly targeting small businesses with viruses, spamming, bot networks (where computers are co-opted and used to send spam or take over other systems), and identity theft (see BusinessWeek.com, 7/17/06, 'The Plot to Hijack Your Computer'). "
He started working in the industry before it was big, as a city police officer in 1983, and spearheaded cybersecurity innovations in the both the public and private sector, most notably at the Air Force Office of Special Investigations, where he established the first dedicated computer forensic lab in the government. Schmidt also served as chief security officer for Microsoft (MSFT) from 1997 to 2002, and was vice-president, chief information security officer, and chief security strategist for eBay (EBAY) from 2003 to 2005.
Schmidt says that while small businesses have been slow to catch up to the security advances made by their larger counterparts, new technology allows them to employ the same level of protection affordably. Further, he says that now is the time to do it, since criminals are increasingly targeting small businesses with viruses, spamming, bot networks (where computers are co-opted and used to send spam or take over other systems), and identity theft (see BusinessWeek.com, 7/17/06, 'The Plot to Hijack Your Computer'). "
Is this the sign-off for the signature?
No Signature on Credit Cards
"The signature, that individual mark of integrity, will soon suffer another blow as shopping loses its personal touch. In the name of cutting down on fraud, credit-card users will be required to key in their personal identification numbers instead of signing sales receipts.
The change, which is expected to be rolled out in Canada by 2010, is another step in the decline of the business signature, which has been waning in recent years because of the increase in e-mail, online shopping, automated signature generators and gasoline retailers' pay-at-the-pump systems. 'The almighty signature is disappearing,' said Ruth Holmes, a Michigan-based handwriting examiner who does forensic analysis and personality assessments for clients across North America. "
Computer Internet Lawyer Attorney Tampa
"The signature, that individual mark of integrity, will soon suffer another blow as shopping loses its personal touch. In the name of cutting down on fraud, credit-card users will be required to key in their personal identification numbers instead of signing sales receipts.
The change, which is expected to be rolled out in Canada by 2010, is another step in the decline of the business signature, which has been waning in recent years because of the increase in e-mail, online shopping, automated signature generators and gasoline retailers' pay-at-the-pump systems. 'The almighty signature is disappearing,' said Ruth Holmes, a Michigan-based handwriting examiner who does forensic analysis and personality assessments for clients across North America. "
Computer Internet Lawyer Attorney Tampa
Thứ Năm, 7 tháng 12, 2006
Computer Forensics Tampa - Banks and Forensics
Trinidad and Tobago's Newsday : newsday.co.tt :: "Banks are pouring money into building formidable defences against computer hackers but are only just waking up to what may be a bigger threat — the physical theft of client information by criminals in the office.
“You can have a fortress-like security system, but if you are not terribly discriminating with consultants and temporary employees, that is a terrible vulnerability,” said Carmen Oveissi Field, a New York-based consultant on computer crime.
“If people can get physical access (to a bank’s systems), the game is over,” said Oveissi Field, managing director of Daylight Forensic and Advisory, a security consultancy.
Banks, especially in Europe and the United States, are investing vast sums to make computer systems impregnable and have been warning customers of the dangers of being duped into giving away confidential information about their accounts. "
“You can have a fortress-like security system, but if you are not terribly discriminating with consultants and temporary employees, that is a terrible vulnerability,” said Carmen Oveissi Field, a New York-based consultant on computer crime.
“If people can get physical access (to a bank’s systems), the game is over,” said Oveissi Field, managing director of Daylight Forensic and Advisory, a security consultancy.
Banks, especially in Europe and the United States, are investing vast sums to make computer systems impregnable and have been warning customers of the dangers of being duped into giving away confidential information about their accounts. "
Computer Lawyer Tampa - Job-Hoppers, Take a Tip from the Bratz
Job-Hoppers, Take a Tip from the Bratz"In toy stores, she's a dancing princess, a mermaid, or a hip teenager. But behind the scenes, Barbie is kicking down doors and taking names. In a 58-page complaint filed Nov. 20 in federal court in Riverside, Calif., Mattel (MAT), Barbie's parent, accuses nemesis Isaac Larian, father of the phenomenally successful Bratz dolls, and a number of former Mattel employees of breach of contract, theft of trade secrets, copyright infringement, and racketeering. In making its case, Mattel had federales raid the Mexican offices of Larian's company, MGA Entertainment, and applied forensic computer techniques to what they found. "
Thứ Tư, 22 tháng 11, 2006
To Catch Crooks In Cyberspace, FBI Goes Global - Preview
"ANKARA, Turkey -- On Aug. 16, 2005, a CNN television news bulletin alerted viewers that computers at the network's New York and Atlanta offices were infected with a new virus called Zotob. Soon, U.S. companies from coast to coast were hit. Halfway around the world, two young computer hackers in Turkey and Morocco got spooked by the ensuing media coverage, but mocked the ability of authorities to track them down. 'They can't find me,' wrote Atilla Ekici, a 23-year-old Turk, in an email to his accomplice, a 19-year-old Moroccan called Farid Essebar. 'Ha, ha, ha,' replied Mr. Essebar. . . "
Thứ Bảy, 18 tháng 11, 2006
Collateral Estoppel in Local Administrative Decisions
In Atlantic Shores v. 507 South Street Corporation, here's the link, the court held that an objecting neighbor could not litigate a height definition issue in the approval of a redevelopment site plan where it had raised and lost the same issue in a seperate administrative proceeding regarding a certificate of appropriateness and had not pursued its administrative remedies in the other case. The court treated this as a form of collateral estoppel.
Critical to the determination was that the hieght issue raised in the second proceeding was the same issue: one of the criteria in the city comission's consideration of whether the plan conformed to the same standards that applied in the certificate of appropriateness. Because the issue was the same, the objector could not relitigate it in the later proceeding having had (and not followed) the opportunity to fully litigate and appeal it earlier.
Critical to the determination was that the hieght issue raised in the second proceeding was the same issue: one of the criteria in the city comission's consideration of whether the plan conformed to the same standards that applied in the certificate of appropriateness. Because the issue was the same, the objector could not relitigate it in the later proceeding having had (and not followed) the opportunity to fully litigate and appeal it earlier.
3d DCA - 30 Days for 163.3215 Challenge Runs from Filing with Clerk
In 5250 v. Stebbins, here's the link, the 3d DCA held that the time for filing a challenge under s. 163.3215, like a cert appeal, runs from the filing of the order with the clerk. As the court noted:
The languge was changed in 2002 to include the "rendition" term, the court noted the legislative history, which included staff analysis to indicate that this was intended to make the time frame concurrent with the applicable rules of court. The appellate rules define rendition as occuring when the order is filed with the clerk to the tribunal.
A decision that simplifies life for all of us. Now, the only filing date that runs from the date of the action, rather than the date of the rendition, is the 30 days to file a challenge to a small scale plan amendment.
Section 163.3215(3) provides that the de novo action "must be filed no later
than 30 days following rendition of a development order." We conclude, in this
case of first impression, that the triggering event for "rendition" is when the
City Clerk entered the development order, not when the mayor signed the order.
The languge was changed in 2002 to include the "rendition" term, the court noted the legislative history, which included staff analysis to indicate that this was intended to make the time frame concurrent with the applicable rules of court. The appellate rules define rendition as occuring when the order is filed with the clerk to the tribunal.
A decision that simplifies life for all of us. Now, the only filing date that runs from the date of the action, rather than the date of the rendition, is the 30 days to file a challenge to a small scale plan amendment.
Due Process: NOT - or Yet Another Example of Breakdown In Cert Review
In Pharmcore v. City of Hallendale Beach, here's the opinion, we're forceably reminded that the lack of clear standards for due process in quasi-judicial hearings, the lack of experience of circuit courts in appellate matters, and the limited scope of 2d tier review basically mean that parties before local quasi-judicial boards can be screwed at will by the local government with no effective or meaningful judicial review.
Here, the City reneged on a settlement agreement (for reasons that may be legally valid, but are operationally just sleazy) and denied a permit. When the applicant appealed to the City Commission, the City staff brought up new reasons not stated in the denial, over the objections of the applicant with respect to notice.
The circuit court decided that the city was legally entitled to reneg and denied the petition. The circuit court noted the correct Vaillant princicples for review, but then "Without elaboration, the decision stated that the court had reviewed the record and found that petitioners were afforded due process. "
Good enough to deny review of the issue on 2d tier before the 4th - the court found that the narrow basis of 2d tier review precluded it from actually asking whether the city commission had denied the petitioners due process in the notice issue because "the circuit court applied the correct law" even if it applied it incorrectly.
Legally correct perhaps under certiorari principles, but wrong as a matter of constitutional rights, effective judicial review, and a proper constraint on abusive local governments.
Here, the City reneged on a settlement agreement (for reasons that may be legally valid, but are operationally just sleazy) and denied a permit. When the applicant appealed to the City Commission, the City staff brought up new reasons not stated in the denial, over the objections of the applicant with respect to notice.
The circuit court decided that the city was legally entitled to reneg and denied the petition. The circuit court noted the correct Vaillant princicples for review, but then "Without elaboration, the decision stated that the court had reviewed the record and found that petitioners were afforded due process. "
Good enough to deny review of the issue on 2d tier before the 4th - the court found that the narrow basis of 2d tier review precluded it from actually asking whether the city commission had denied the petitioners due process in the notice issue because "the circuit court applied the correct law" even if it applied it incorrectly.
Legally correct perhaps under certiorari principles, but wrong as a matter of constitutional rights, effective judicial review, and a proper constraint on abusive local governments.
Charter Control over Annexation- Provisions Must Be in Charter Itself
In Village of Wellington, et al, v Palm Beach County, here's the opinion, the 4th DCA upheld a circuit court's findings on the powers of charter counties to control and limit annexation. There's a good discussion of the interaction of the various constitutional and statutory provisions, but the bottom line is that the Charter provision itself must provide the actual annexation rules if they are to supersede the statutory provisions or municipal charters. The Charter can't just empower the County Commission to adopt later ordinances to govern annexation.
More to This Than Meets the Eye: Dec Action to Challenge Plat Approval
In McCarthy et al v. Hillsborough County, etc al, here's the link, the Second DCA issued this unfortunately short opinion that masks a serious issue that needed serious public analysis:
PER CURIAM.
We deny the petition for writ of certiorari without prejudice to the
petitioners seeking declaratory relief in the circuit court.
Here's the hook: the 2d tier cert was a challenge to the circuit court's denial of a cert attack on the Hillsborough County Commission's approval of a plat in a non-quasi judicial proceeding.
The critical sub-issue is this: under City of Boyton Beach v. Park of Commerce, _____, the Florida Supreme Court held that the site plan decision under review was quasi-judicial in nature. The opinion included language stating broadly that all land use decision were quasi-judicial. But a footnote cited to the Snyder case, noting that the same analysis applied. Snyder, of course, involved a rezoning, and there is are statutory requirements that rezoning ordinance be adopted by ordinance (which involves a hearing). The statute involving plats, as well as the Hillsborough County land use regulations, do NOT have such an explicit provision. However, the platting statute (Chapter 177) does require the local governing board to approve a plat, and other provisions of Chapter 125 and 166 provide that the only way for local governments to act are through ordiances or resolutions, and both those statutes and the Sunshine Law require those actions to be taken at public meeetings - but not necessarily after "public hearings."
Also complicating matters is the whole bizaare history of whether and when plat approvals are ministerial; under the statute, they are if the plat meets the objective, ennumerated standards, but most local subdivision ordinance add additional requirements that may include some discretionary criteria.
Here (based on information I have that's not in the opinion), the Hillsborough County Commission approved the plat at a public hearing, but did not allow affected neighbors to introduce evidence against it. Neighbors challenged by cert under Park of Commerce, claiming violations of due process and essential requirements of law. Circuit court denied, stating that the hearing wasn't quasi-judicial in nature, and the appeal followed.
What we don't know is whether the lower court held that the plat approval wasn't quasi-judicial under the structural analysis of Bloomfield v. Mayo, which holds that you look to see whether the delegating statute or ordinance requires notice and a due process type hearing, or under the so-called functional analysis that comes from Snyder, under which the court looks to see whether the local government was applying versus making policy, and implies and requires quasi-judicial procedures if they are.
Clearly, the County did not offer the incidents of a quasi-judicial hearing, and now the courts have held that a dec action, rather than cert, was the proper remedy. The question is how broadly this holding reaches.
PER CURIAM.
We deny the petition for writ of certiorari without prejudice to the
petitioners seeking declaratory relief in the circuit court.
Here's the hook: the 2d tier cert was a challenge to the circuit court's denial of a cert attack on the Hillsborough County Commission's approval of a plat in a non-quasi judicial proceeding.
The critical sub-issue is this: under City of Boyton Beach v. Park of Commerce, _____, the Florida Supreme Court held that the site plan decision under review was quasi-judicial in nature. The opinion included language stating broadly that all land use decision were quasi-judicial. But a footnote cited to the Snyder case, noting that the same analysis applied. Snyder, of course, involved a rezoning, and there is are statutory requirements that rezoning ordinance be adopted by ordinance (which involves a hearing). The statute involving plats, as well as the Hillsborough County land use regulations, do NOT have such an explicit provision. However, the platting statute (Chapter 177) does require the local governing board to approve a plat, and other provisions of Chapter 125 and 166 provide that the only way for local governments to act are through ordiances or resolutions, and both those statutes and the Sunshine Law require those actions to be taken at public meeetings - but not necessarily after "public hearings."
Also complicating matters is the whole bizaare history of whether and when plat approvals are ministerial; under the statute, they are if the plat meets the objective, ennumerated standards, but most local subdivision ordinance add additional requirements that may include some discretionary criteria.
Here (based on information I have that's not in the opinion), the Hillsborough County Commission approved the plat at a public hearing, but did not allow affected neighbors to introduce evidence against it. Neighbors challenged by cert under Park of Commerce, claiming violations of due process and essential requirements of law. Circuit court denied, stating that the hearing wasn't quasi-judicial in nature, and the appeal followed.
What we don't know is whether the lower court held that the plat approval wasn't quasi-judicial under the structural analysis of Bloomfield v. Mayo, which holds that you look to see whether the delegating statute or ordinance requires notice and a due process type hearing, or under the so-called functional analysis that comes from Snyder, under which the court looks to see whether the local government was applying versus making policy, and implies and requires quasi-judicial procedures if they are.
Clearly, the County did not offer the incidents of a quasi-judicial hearing, and now the courts have held that a dec action, rather than cert, was the proper remedy. The question is how broadly this holding reaches.
Facially Valid Equal Protection Claims Must be Heard in Enforcement Proceedings
In Powell v. City of Sarasota, here's the link, http://www.2dca.org/opinion/September%2013,%202006/2D05-4850.pdf, the Second DCA held that a nuisance abatement board violated the law by not permitting a defence of race-based selective enforcement, and that the Circuit Court violated the essential requirements of law in not overturning on that basis.
While the court cited the statute, which requires that a defendant be permitted the opportunity to present evidence in defense, this is clearly a due process requirement as well.
While the court cited the statute, which requires that a defendant be permitted the opportunity to present evidence in defense, this is clearly a due process requirement as well.
Thứ Năm, 16 tháng 11, 2006
Florida Cyber Crime Unit Gets State-of-the-Art Tool
Tallahassee Police Department Cyber Crimes Unit tallahassee.com - www.tallahassee.com
"Hard drive duplication is one of the first and most necessary steps required to perform an in-depth computer crimes investigation. Without evidence of a crime being committed, it is nearly impossible to successfully prosecute a case. Crime laboratory technicians duplicate the hard drive copying all of the data to a 'clean' drive for forensic analysis. . . .
The Logicube Forensic Talon is a high-tech portable hard drive duplication system that is deployed to the scene of a cyber crime. Without seizing the business's affected computer, investigators connect it to the Logicube. The Logicube accesses the target computer's hard drive and scans all of the data on the disc at the bit (ones and zeroes) level. Based on the scan of the target hard drive, the Logicube generates a unique, secure, non-duplicatable number-letter combination using a mathematical algorithm. The instrument then forensically duplicates the contents of the target hard drive copying it to a "clean" hard drive attached to the Logicube.
At the completion of the process the Logicube then scans the resulting copy of the hard drive and generates a second unique number-letter combination using the same mathematical algorithm. The two generated number letter combinations from the target computer and the forensic duplicate are compared and if they are the same number then the duplication was successful and the resultant evidence can be used for prosecution."
"Hard drive duplication is one of the first and most necessary steps required to perform an in-depth computer crimes investigation. Without evidence of a crime being committed, it is nearly impossible to successfully prosecute a case. Crime laboratory technicians duplicate the hard drive copying all of the data to a 'clean' drive for forensic analysis. . . .
The Logicube Forensic Talon is a high-tech portable hard drive duplication system that is deployed to the scene of a cyber crime. Without seizing the business's affected computer, investigators connect it to the Logicube. The Logicube accesses the target computer's hard drive and scans all of the data on the disc at the bit (ones and zeroes) level. Based on the scan of the target hard drive, the Logicube generates a unique, secure, non-duplicatable number-letter combination using a mathematical algorithm. The instrument then forensically duplicates the contents of the target hard drive copying it to a "clean" hard drive attached to the Logicube.
At the completion of the process the Logicube then scans the resulting copy of the hard drive and generates a second unique number-letter combination using the same mathematical algorithm. The two generated number letter combinations from the target computer and the forensic duplicate are compared and if they are the same number then the duplication was successful and the resultant evidence can be used for prosecution."
Thứ Sáu, 27 tháng 10, 2006
One Stop Therapy: Solving your loved one's legal problem and the behavior that caused it
Does your loved one have a history of problem behavior?
Please understand: Many people are just at the wrong place, at the wrong time and are wrongly accused of being on the wrong side of the law.
Yet many criminal defense clients have a long history of problem behavior. Their families are frustrated because the person seems to repeatedly do things that doesn't make sense. The person in question isn't necessarily "crazy" (as in thinking they are Jesus or possessed by aliens) but their behavior has caused problems in several areas of their life. Usually, the problem behavior is the result of "brain illness" - a real medical problem that can't just be talked away through counseling alone.
One Stop Therapy is a program designed by me after many years of studying people accused of crimes. The goal of One Stop Therapy is simple: Solve the problem behavior that created the legal problem and solve the legal problem at the same time.
Here is a brief test to see if the person you love fits the One Stop Therapy Program criteria:
□ Did your loved one finish high school?
□ Is your loved one impulsive in matters of money or love?
□ Does your loved one appear to sabotage themselves?
□ Does your loved one make empty promises?
□ Does your loved one have a substance abuse problem?
□ Has your loved one been in substance abuse treatment previously, but it didn't work?
□ Has your loved one ever been prescribed anti-depressants or anti-anxiety drugs?
□ Has your loved one ever sought out or been court ordered to attend counseling?
□ Does your loved one attract people who are a negative influence?
□ Does your loved one make ridiculous excuses for misbehavior?
□ Is your loved one unreliable?
□ Have some family members "written off" your loved one?
□ Has your loved one been arrested before, even if it was a long time ago?
If you marked two or more of the above questions, then your loved one may be a candidate for One Stop Therapy. This does not excuse wrongful behavior nor does it fit every individual's circumstance. However, after having hundreds of clients evaluated by a PhD level psychologist using advanced psychometric testing, most "repeat offenders" have chemical imbalances and other brain illnesses which affect their behavior. This may be why your loved one doesn't get it.
I believe that this approach is the future of criminal law. The merger of pscyhology, psychiatry and law has the potential to actually solve the social problem of crime in over eighty percent (80%) of all criminal cases.
Does your loved one have a history of problem behavior?
Please understand: Many people are just at the wrong place, at the wrong time and are wrongly accused of being on the wrong side of the law.
Yet many criminal defense clients have a long history of problem behavior. Their families are frustrated because the person seems to repeatedly do things that doesn't make sense. The person in question isn't necessarily "crazy" (as in thinking they are Jesus or possessed by aliens) but their behavior has caused problems in several areas of their life. Usually, the problem behavior is the result of "brain illness" - a real medical problem that can't just be talked away through counseling alone.
One Stop Therapy is a program designed by me after many years of studying people accused of crimes. The goal of One Stop Therapy is simple: Solve the problem behavior that created the legal problem and solve the legal problem at the same time.
Here is a brief test to see if the person you love fits the One Stop Therapy Program criteria:
□ Did your loved one finish high school?
□ Is your loved one impulsive in matters of money or love?
□ Does your loved one appear to sabotage themselves?
□ Does your loved one make empty promises?
□ Does your loved one have a substance abuse problem?
□ Has your loved one been in substance abuse treatment previously, but it didn't work?
□ Has your loved one ever been prescribed anti-depressants or anti-anxiety drugs?
□ Has your loved one ever sought out or been court ordered to attend counseling?
□ Does your loved one attract people who are a negative influence?
□ Does your loved one make ridiculous excuses for misbehavior?
□ Is your loved one unreliable?
□ Have some family members "written off" your loved one?
□ Has your loved one been arrested before, even if it was a long time ago?
If you marked two or more of the above questions, then your loved one may be a candidate for One Stop Therapy. This does not excuse wrongful behavior nor does it fit every individual's circumstance. However, after having hundreds of clients evaluated by a PhD level psychologist using advanced psychometric testing, most "repeat offenders" have chemical imbalances and other brain illnesses which affect their behavior. This may be why your loved one doesn't get it.
I believe that this approach is the future of criminal law. The merger of pscyhology, psychiatry and law has the potential to actually solve the social problem of crime in over eighty percent (80%) of all criminal cases.
How to Select a Criminal Defense Lawyer Who is Right for You
One of the advantages to lawyer's marketing on the Internet and in the phone books, it that consumers have access to information. Obviously, one of the disadvantages is the asymetry of information: The lawyer has more information and knows how to use it to land a case.
The best phone book ad doesn’t guarantee the best lawyer. For example, a lawyer may have a big, flashy ad that says “DUI Only!” yet that lawyer may not be a criminal law specialist. In fact, there is no specialty in DUI recognized by the Florida Bar Association or the Florida Supreme Court! The only two specialties in criminal law are criminal trial law and criminal appellate law.
Select a lawyer by asking questions before you go to the lawyer’s office. A handy checklist is provided.
Most lawyers in the criminal defense field provide free initial consultations. The free initial consultation has two purposes: 1) explain what a lawyer can do for you, and; 2) what the fee would be if you and the lawyer agree to representation.
Desperate lawyers will offer low money down payment plans, cheap fees and cheap service. The best best criminal defense attorneys are lawyers who will expect their fee up front, they will charge more, and they will have the time to provide the best service. Most importantly, they can answer the questions on the checklist with a ‘yes,’ not an excuse.
Checklist for Hiring A Criminal Defense Lawyer
- Are you certified by the Florida Bar Association and the Florida Supreme Court as a specialist in criminal law?
- Does your law firm focus on criminal law exclusively?
- Have you handled at least a thousand or more criminal cases?
- Are you a member of the National Association of Criminal Defense Lawyers?
- Are you a member of the Florida Association of Criminal Defense Lawyers?
- Are you a member of your local Association of Criminal Defense Lawyers?
- Do other lawyers call you when they have questions about criminal law?
- Are you a “Lone Ranger” or do you have a defense team?
- Have you ever led a defense team?
- Have you handled cases like mine in the past?
- Have you had trials in cases like mine in the past?
- Have you practiced law for more than ten years?
- Have you won any cases that have been reported in the Southern Second Edition Case Reporter?
- Are you qualified to handle capital death penalty cases?
- Have you ever won a capital case?
- Have you ever won any motions to dismiss?
- Have you ever won any motions to suppress?
- Have you ever won any judge trials?
- Have you ever won any jury trials?
Now, some of these won't apply in every case: If you or your loved one has been charged with Burglary, then this Checklist for Hiring a Criminal Defense Lawyer can be modified to suit your needs.
Chủ Nhật, 10 tháng 9, 2006
11th Cir Ct of Appeal on 1st Amendment/Signs - Know your Standing Doctrine
In KH Outdoor, Inc. v. City of Trussville, here's the link, the 11th Circuit Court of Appeals clarified how standing to challenge under the overbreadth doctrine works (at least in the 11th).
Ok, it's yet another billboard case. The ordinance has some serious defects in allowing commercial speech preference over non-commercial speech (off-site billboard ordinances often have this issue). It actually is screwed up enough to read such that any political sign can only be temporary.
When the City denies sign permits, the Plaintiff sues to invalidate the whole ordinance based on overbreadth, and wins in the 11th based on the defects above. The real story is how the 11th tries to "fix" the apparent inconsistencies in some of its earlier opinions.
Here's the upshot: once you're adversely affected by any part of a regulation that implicates the 1st amendment, you have standing to attack any part of the ordinance that also covers your activities (even if that wasn't the basis of the adverse decision) on the basis that it is overbroad as it would apply to other persons and their speech. After noting that the overbreadth doctrine does not eliminate standing requirements for getting into federal court, the opinion lays out this critical set of distinctions:
Based on this analysis, the Court held that the Plaintiff could challenge not only the sectthe ordinancerdiance that provided the location and setback provisions under which the sign permits were denied, but also could "look through" to the intent and definition sections, which contained the prohibition against signs not permitted and the definitions and provisions that created the violations of the 1st amendment as applied to other speakers or actors.
Again, a critical opinion for anyone who writes, defends or attacks sign ordinances and permits.
Ok, it's yet another billboard case. The ordinance has some serious defects in allowing commercial speech preference over non-commercial speech (off-site billboard ordinances often have this issue). It actually is screwed up enough to read such that any political sign can only be temporary.
When the City denies sign permits, the Plaintiff sues to invalidate the whole ordinance based on overbreadth, and wins in the 11th based on the defects above. The real story is how the 11th tries to "fix" the apparent inconsistencies in some of its earlier opinions.
Here's the upshot: once you're adversely affected by any part of a regulation that implicates the 1st amendment, you have standing to attack any part of the ordinance that also covers your activities (even if that wasn't the basis of the adverse decision) on the basis that it is overbroad as it would apply to other persons and their speech. After noting that the overbreadth doctrine does not eliminate standing requirements for getting into federal court, the opinion lays out this critical set of distinctions:
First Amendment standing analysis may be complicated further by the overbreadth doctrine, which serves as an exception to the prudential principle noted above. Under overbreadth, “a party may bring a First Amendment case asserting the rights of third parties if a statute is constitutionally applied to the litigant but might be unconstitutionally applied to third parties not before the court.” CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1270-71 (11th Cir. 2006) (internal quotation marks omitted). Significantly, the overbreadth doctrine does not relieve a plaintiff from having to establish constitutional standing; it is simply an exception to one of the prudential requirements. See id. at 1270 (noting that“[t]he overbreadth doctrine does not relieve a plaintiff of the burden to prove constitutional standing”). Indeed, a plaintiff may bring an overbreadth challenge to only those provisions of a law or ordinance that “affect activitiesties. " Id. at 1273. In other words, the overbreadth doctrine does not change the statutes or provisions of an ordinance a plaintiff may challenge; she can only contest those which actually caused her injury. Rather, the overbreadth doctrine simply allows a plaintiff to bring a facial challenge to a provision of law that caused her injury, regardless of whether the provision’s regulation of her conduct in particular was constitutional.
Based on this analysis, the Court held that the Plaintiff could challenge not only the sectthe ordinancerdiance that provided the location and setback provisions under which the sign permits were denied, but also could "look through" to the intent and definition sections, which contained the prohibition against signs not permitted and the definitions and provisions that created the violations of the 1st amendment as applied to other speakers or actors.
Again, a critical opinion for anyone who writes, defends or attacks sign ordinances and permits.
Thứ Hai, 21 tháng 8, 2006
WOW - 4th Circuit Judge Finally Has Enough of Unfair DMV Hearing Officers!
OK, here's a due process and judicial review showdown in the making.
Our local government attorney friends LOVE citing G.B.V. on the point that a reviewing court can only quash in a petition for cert. But what about when the lower tribunal fails to adhere to the law of the case, or - as in the case below - continually fails to provide fair hearings?
In this opinion, the 4th Circuit Judge takes on the Division for the unprofessional and unfair behavior of its (non attorney, clearly not qualified) hearing officer, and not only quashes but orders the Division to restore the Petitioner's license.
So when the 1st DCA quashes this, will we finally get a case before the Supremes where they can reconsider their position in light of the clear failure of so many, many, many lower tribunals to play by the rules? The "remand only" rule was created in, and supported by, the context of FORMAL quasi-judicial proceedings, with real rules, staffs with attorneys, and formal fact finding and general good behavior. That is, the entire rule is predicated on the idea that the lower tribunals generally try and do provide due process, and are committed to implementing the rule of law.
Unfortunately, that's just not true with these Division "magistrates" and local quasi-judicial tribunals.
Anyway, here's the opinion:
13 Fla. L. Weekly Supp. 756a
THOMAS MATTHEW BELL, Petitioner, vs. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. Circuit Court, 4th Judicial Circuit (Appellate) in and for Duval County. Case No. 16-2005-CA-7538, Division CV-E. May 15, 2006. Counsel: David M. Robbins, Epstein & Robbins, Jacksonville, for Petitioner. Kathy Jimenez-Morales, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Respondent.
OPINION
(BERNARD NACHMAN, J.) This cause came before this Court upon the Petition for Writ of Certiorari filed by the Petitioner, Thomas Matthew Bell on December 5, 2005. The Petitioner seeks review of the Final Order of License Suspension of the Respondent, Department of Highway Safety and Motor Vehicles sustaining the administrative suspension of his driver's license. This Court has reviewed the briefs filed by the parties and has considered oral arguments presented. This Court, having jurisdiction, finds that the Petition for Writ of Certiorari was timely filed.
In his petition, the Petitioner has raised two (2) issues. The Petitioner alleges first, he alleges that there is not competent and substantial evidence in the record to uphold the findings of the hearing officer that he was lawfully arrested. This Court finds to the contrary as to this issue. Second, he contends that he was denied due process as a result of the actions of the hearing officer. This Court agrees with that contention and concludes that the Petition should be granted as to those grounds.
The transcript of the two separate hearings conducted by the hearing officer support Petitioner's assertion that the hearing officer departed from her role as a neutral and detached magistrate and failed to preserve the impression of impartiality to which Petitioner was entitled. See Department of Highway Safety and Motor Vehicles v. Pitts, 815 So.2d 738 (Fla. 1st DCA 2002); Ducre v. State, 768 So.2d 1159 (Fla. 2d DCA 2000) (“Whether appearing before a hearing officer or the court, a litigant should have the same confidence in the impartiality of the fact-finder”).
The hearing officer's lack of neutrality was evident. At the beginning of the hearing, Counsel for Petitioner noted that an officer whom he had subpoenaed failed to appear. Counsel moved to invalidate the administrative suspension due to the failure of this law enforcement officer witness to appear. Counsel advised Hearing Officer (hereinafter “HO”) Labbe that he had been present when Hearing Officer Supervisor (hereinafter “HOS”) Wright had denied this witness's request to be excused from the hearing. Setting the tone for the entire proceedings, HO Labbe insisted that Counsel was in error as to whether the witness had been excused. HOS Wright had to be brought into the hearing at which time she confirmed that Counsel was correct. After HOS Wright left the room HO Labbe overruled the supervisor's decision and announced that she was excusing the witness herself. HO Labbe requested that Counsel proffer the relevance of the witness she had just excused. When Counsel proffered what the witness had told him, HO Labbe then accused Counsel of engaging in an improper ex parte conversation with the witness. In addition to accusing counsel of this improper conduct, HO Labbe continuously interrupted counsel throughout the hearing.
The Petitioner had served a subpoena duces tecum for the original DVD recording to be brought to the hearing. The recording that was brought to the hearing was a copy. There were obvious gaps in the recording. When it became apparent that there was a problem with the copy, the Petitioner requested a continuance so that the original could be brought. The hearing officer responded by questioning Officer Blackstone about what was missing from the DVD. HO Labbe set out her purpose for these questions stating, “[w]hat I'm trying to determine is if I even have to be worried about this other original cassette. If there's something that's going to be on that cassette that's going to have caused you to not have arrested him.” HO Labbe improperly focused on whether Officer Blackstone believed that the recording was beneficial to the Petitioner instead of recognizing the Petitioner's due process right to present evidence.
Near the end of the first hearing, Counsel attempted to file a motion to disqualify HO Labbe based upon what had occurred during the hearing. Counsel handed the written motion to the hearing officer. The hearing officer began to write on the motion and improperly disputed the factual assertions. The motion was subsequently denied and the hearing was continued with HO Labbe.
The hearing was continued to October 28, 2005. Officer Blackstone was served with a subpoena duces tecum to appear at this hearing with the original DVD. Officer Blackstone appeared with a copy again. Officer Blackstone testified that the decision to bring a copy was based upon an ex parte conversation between counsel for the Sheriff's Office and the Bureau of Administrative Reviews. The Petitioner was not advised of this ex parte communication or the decision to effectively alter the subpoena duces tecum until arriving at the hearing.
The overall atmosphere and cumulative impact of the above examples as reflected in the transcripts evidences a failure to afford the Petitioner the fair hearing and due process to which he was entitled. As a result, the administrative suspension of the Petitioner's driver's license cannot be sustained.
Furthermore, although this Court has remanded these matters in the past, in this case the Court chooses not to do so. As noted by Judge Haldane Taylor in Gonzales v. Department of Highway Safety and Motor Vehicles, [9 Fla. L. Weekly Supp. 75a] (Fla.4th Cir. Ct., Nov. 30, 2001), “. . .a failure to preserve an appearance of neutrality seems to be a problem with the Respondent's hearing officers. Numerous Orders from this Circuit have had no apparent effect on the conduct of hearing officers in this regard. Therefore, this Court concludes that remand would serve no purpose in this case, and that the only appropriate remedy is to quash the Final Order of License Suspension.”
Upon consideration, it is hereby,
ORDERED AND ADJUDGED:
1. The Petition for Writ of Certiorari is GRANTED;
2. The suspension of the Petitioner's driver's license entered by the Department effective November 3, 2005, is hereby QUASHED;
3. The Department shall immediately reinstate the Petitioner's driving privilege, if otherwise eligible, and remove from the Petitioner's permanent record any entry which reflects the administrative suspension that was sustained by the administrative order.
Our local government attorney friends LOVE citing G.B.V. on the point that a reviewing court can only quash in a petition for cert. But what about when the lower tribunal fails to adhere to the law of the case, or - as in the case below - continually fails to provide fair hearings?
In this opinion, the 4th Circuit Judge takes on the Division for the unprofessional and unfair behavior of its (non attorney, clearly not qualified) hearing officer, and not only quashes but orders the Division to restore the Petitioner's license.
So when the 1st DCA quashes this, will we finally get a case before the Supremes where they can reconsider their position in light of the clear failure of so many, many, many lower tribunals to play by the rules? The "remand only" rule was created in, and supported by, the context of FORMAL quasi-judicial proceedings, with real rules, staffs with attorneys, and formal fact finding and general good behavior. That is, the entire rule is predicated on the idea that the lower tribunals generally try and do provide due process, and are committed to implementing the rule of law.
Unfortunately, that's just not true with these Division "magistrates" and local quasi-judicial tribunals.
Anyway, here's the opinion:
13 Fla. L. Weekly Supp. 756a
THOMAS MATTHEW BELL, Petitioner, vs. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. Circuit Court, 4th Judicial Circuit (Appellate) in and for Duval County. Case No. 16-2005-CA-7538, Division CV-E. May 15, 2006. Counsel: David M. Robbins, Epstein & Robbins, Jacksonville, for Petitioner. Kathy Jimenez-Morales, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Respondent.
OPINION
(BERNARD NACHMAN, J.) This cause came before this Court upon the Petition for Writ of Certiorari filed by the Petitioner, Thomas Matthew Bell on December 5, 2005. The Petitioner seeks review of the Final Order of License Suspension of the Respondent, Department of Highway Safety and Motor Vehicles sustaining the administrative suspension of his driver's license. This Court has reviewed the briefs filed by the parties and has considered oral arguments presented. This Court, having jurisdiction, finds that the Petition for Writ of Certiorari was timely filed.
In his petition, the Petitioner has raised two (2) issues. The Petitioner alleges first, he alleges that there is not competent and substantial evidence in the record to uphold the findings of the hearing officer that he was lawfully arrested. This Court finds to the contrary as to this issue. Second, he contends that he was denied due process as a result of the actions of the hearing officer. This Court agrees with that contention and concludes that the Petition should be granted as to those grounds.
The transcript of the two separate hearings conducted by the hearing officer support Petitioner's assertion that the hearing officer departed from her role as a neutral and detached magistrate and failed to preserve the impression of impartiality to which Petitioner was entitled. See Department of Highway Safety and Motor Vehicles v. Pitts, 815 So.2d 738 (Fla. 1st DCA 2002); Ducre v. State, 768 So.2d 1159 (Fla. 2d DCA 2000) (“Whether appearing before a hearing officer or the court, a litigant should have the same confidence in the impartiality of the fact-finder”).
The hearing officer's lack of neutrality was evident. At the beginning of the hearing, Counsel for Petitioner noted that an officer whom he had subpoenaed failed to appear. Counsel moved to invalidate the administrative suspension due to the failure of this law enforcement officer witness to appear. Counsel advised Hearing Officer (hereinafter “HO”) Labbe that he had been present when Hearing Officer Supervisor (hereinafter “HOS”) Wright had denied this witness's request to be excused from the hearing. Setting the tone for the entire proceedings, HO Labbe insisted that Counsel was in error as to whether the witness had been excused. HOS Wright had to be brought into the hearing at which time she confirmed that Counsel was correct. After HOS Wright left the room HO Labbe overruled the supervisor's decision and announced that she was excusing the witness herself. HO Labbe requested that Counsel proffer the relevance of the witness she had just excused. When Counsel proffered what the witness had told him, HO Labbe then accused Counsel of engaging in an improper ex parte conversation with the witness. In addition to accusing counsel of this improper conduct, HO Labbe continuously interrupted counsel throughout the hearing.
The Petitioner had served a subpoena duces tecum for the original DVD recording to be brought to the hearing. The recording that was brought to the hearing was a copy. There were obvious gaps in the recording. When it became apparent that there was a problem with the copy, the Petitioner requested a continuance so that the original could be brought. The hearing officer responded by questioning Officer Blackstone about what was missing from the DVD. HO Labbe set out her purpose for these questions stating, “[w]hat I'm trying to determine is if I even have to be worried about this other original cassette. If there's something that's going to be on that cassette that's going to have caused you to not have arrested him.” HO Labbe improperly focused on whether Officer Blackstone believed that the recording was beneficial to the Petitioner instead of recognizing the Petitioner's due process right to present evidence.
Near the end of the first hearing, Counsel attempted to file a motion to disqualify HO Labbe based upon what had occurred during the hearing. Counsel handed the written motion to the hearing officer. The hearing officer began to write on the motion and improperly disputed the factual assertions. The motion was subsequently denied and the hearing was continued with HO Labbe.
The hearing was continued to October 28, 2005. Officer Blackstone was served with a subpoena duces tecum to appear at this hearing with the original DVD. Officer Blackstone appeared with a copy again. Officer Blackstone testified that the decision to bring a copy was based upon an ex parte conversation between counsel for the Sheriff's Office and the Bureau of Administrative Reviews. The Petitioner was not advised of this ex parte communication or the decision to effectively alter the subpoena duces tecum until arriving at the hearing.
The overall atmosphere and cumulative impact of the above examples as reflected in the transcripts evidences a failure to afford the Petitioner the fair hearing and due process to which he was entitled. As a result, the administrative suspension of the Petitioner's driver's license cannot be sustained.
Furthermore, although this Court has remanded these matters in the past, in this case the Court chooses not to do so. As noted by Judge Haldane Taylor in Gonzales v. Department of Highway Safety and Motor Vehicles, [9 Fla. L. Weekly Supp. 75a] (Fla.4th Cir. Ct., Nov. 30, 2001), “. . .a failure to preserve an appearance of neutrality seems to be a problem with the Respondent's hearing officers. Numerous Orders from this Circuit have had no apparent effect on the conduct of hearing officers in this regard. Therefore, this Court concludes that remand would serve no purpose in this case, and that the only appropriate remedy is to quash the Final Order of License Suspension.”
Upon consideration, it is hereby,
ORDERED AND ADJUDGED:
1. The Petition for Writ of Certiorari is GRANTED;
2. The suspension of the Petitioner's driver's license entered by the Department effective November 3, 2005, is hereby QUASHED;
3. The Department shall immediately reinstate the Petitioner's driving privilege, if otherwise eligible, and remove from the Petitioner's permanent record any entry which reflects the administrative suspension that was sustained by the administrative order.
Quick - Object, even if you don't know how or when
Ok, here's another decision from the same panel the 6th Circuit as in the WalMart case below, equally flawed.
The court started out by dismissing the Petitioners' due process claims on the basis that they failed to make objections on the record to a) ex parte contacts, b) surprise in a party offering a late filed new report.
Here's critical language that could be used by any and all sides in cert actions:
The real use of this language, however, is for those of us poor souls who get a completely BS denial at the hands of a commission, file cert, and then find the government attorney raising all kinds of new issues ("gee, your honr, they weren't compatible with policy x.y.z," even though no one ever raised that policy during the hearing).
But then on to the bad stuff (and this is bad regardless of whether you represent neighbors/environmental groups or developers/landowners). The Court abandons its responsibility to "say what the law is" (see 3d DCA cases earlier) to the local government, in this language:
And I'll also say that while I think the right result occured, the court also erred in how it approached the analysis of whether the WalMart was a permitted use in the zone district. There was a clear ambiguity or inconsistency between the intent of the district - to allow specialty retail -- and the specific permitted uses -- which included retail stores (without limitation) and shopping centers.
The issue: "specialty retail" is a land use and transportation planning term of art, and it does NOT include big box stores like WalMarts. Based on the intent of the district, as properly interpreted by planning experts, not commissioners, the WalMart was NOT permitted. However, the actual permitted uses included retail uses and shopping centers. Absent a seperate definition of "big box" that distinguished these bohemeths from true specialty retail uses, the rules of construction (remember - zoning in derogation of private property rights, so interpretation goes to the landowner) demand that the more specific (the use) rule over the more general (the intent). THAT'S the kind of analysis we need from our courts to ensure that zoning regulations are interpreted fairly for all sides. Abandoning that reasoning to the local government (unless they actually do it and do it right - HAH), is like putting Dick Chaney in charge of the Justice Dep'ts Division of Civil Rights - or appointing him to sit on a FISA tribunal.
Finally, the court rolled out the tired (and IMHO wrong at 1st tier review) old "miscarriage of justice" standard that started out its life as a policy to help narrow 2d tier review, but now has got a life of its own ensuring that the circuit courts don't actually do justice in these cases (violating our right to access to the courts, if you think about it).
Anyway - here's the the opinion:
13 Fla. L. Weekly Supp. 774a
CONCERNED CITIZENS OF TARPON SPRINGS, INC., HARRY BATUYIOS, DENNIS BROWN, DOROTHY BROWN, WENDY CROSATO, BRIAN R. CROSATO, JEAN DORRELL, HELEN GLADWIN, BILL GLADWIN, WILLIAM HOOPER, CHRIS HRABOVSKY, RICHARD MURDACH, EDWARD SKAALAND, JOAN SKAALAND, JOHN K. TARAPANI, CHARLES VAN WINKLE, SHARON VAN WINKLE, and WILLIAM L. VINSON, Petitioners, vs. CITY OF TARPON SPRINGS, FLORIDA, and WAL-MART STORES EAST, LP, Respondents. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 05-0014AP-88B. UCN522005AP000014XXXXCV. March 22, 2006. Counsel: C. Phillip Campbell, Theodore C. Taub, Tammy N. Giroux, and Mark A. Connolly, Tampa. John G. Hubbard, Dunedin. David A. Theriaque, Suzanne Van Wyk, Timothy E. Dennis, Tallahassee.
ORDER DENYING AMENDED PETITION
FOR WRIT OF CERTIORARI
THIS CAUSE came before the Court on the Amended Petition for Writ of Certiorari, the Joint Response to Second Order to Show Cause, and the Petitioners' Reply. Upon consideration of the briefs, the record and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.
The Petitioners, Concerned Citizens of Tarpon Springs, Inc., Harry Batuyios, Dennis Brown, Dorothy Brown, Wendy Crosato, Brian R. Crosato, Jean Dorrell, Helen Gladwin, Bill Gladwin, William Hooper, Chris Hrabovsky, Richard Murdach, Edward Skaaland, Joan Skaaland, John K. Tarapani, Charles Van Winkle, Sharon Van Winkle, and William L. Vinson (Petitioners), seek review of Resolution 2004-63, entered January 19, 2005, by the Respondent, City of Tarpon Springs, Florida (City), to approve the site plan, with conditions, submitted by the Respondent, Wal-Mart Stores East, LP (Wal-Mart). These Petitioners have standing.1 In reviewing the administrative action taken by the City, the Court must consider whether the Petitioners were afforded procedural due process, whether the essential requirements of law were observed and whether the Resolution is supported by competent substantial evidence. See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995) (setting forth the standard of certiorari review of administrative action).
The record shows that Wal-Mart submitted a site plan proposal for the development of a 74.4 acre parcel of land, described as Lot 1, located off of U.S. 19 and bordered on one side by the Anclote River. There are two other designated lots, Lot 2 and Lot 3, and other designated tracts on the property which do not directly involve the Wal-Mart proposal. The land is currently zoned General Business (GB), which specifically includes “Retail Sales Establishments” and “Shopping Centers” as permitted uses. Retail Sales Establishments is defined in the City's Code as: “Any establishment where the primary use is the sale of goods or merchandise to the general public for personal or household consumption.”
After a 13-hour public hearing, the Board of Commissioners of the City of Tarpon Springs (City Commission), in a 3 to 2 vote, approved Resolution 2004-63. The Resolution approved the site plan with several conditions, to wit:
1. The developer is responsible for acquiring all other jurisdictional permits and for meeting the minimum criteria of the Land Development Code.
2. Construction plans, signed and sealed by a registered engineer licensed to practice in the State of Florida, must be submitted within one year of the date of final site plan approval.
3. All conditions and requirements of the final Development Agreement (ATTACHMENT B) must be performed on a timely basis, as applicable.
4. Master meters and utility line adjustments per the requirements of the City of Tarpon Springs Utility Division.
5. Plat approval is required for the subdivision into three lots.
6. Submission of revised traffic impact study with follow-on review by TBE Group for compliance with City of Tarpon Springs transportation concurrency management requirements or reduction of scope of project to within 50% of allowable floor area ratio. No development permits will be issued until concurrency requirements are accomplished.
7. A 50' buffer is required along the Anclote River.
8. A physical barrier is required between the Anclote River and the building/parking lot to prevent run-off into the river.
The Development Agreement, incorporated into the Resolution as Attachment B, is a 24-page document that sets forth several more conditions and restrictions, including that the owner must seek rezoning of Lot 2 from GB to Residential Office (RO), within 18 months of the effective date of the Development Agreement, to be compatible with the City's land-use classification. The Development Agreement clarifies that no residential development is permitted without the appropriate permits to allow residential use. Lot 3 is to be limited to development of a maximum of 8,000 square feet of commercial retail.
The Petitioners have raised several issues before this Court. The Petitioners first argue that they were denied due process as the City Commission failed to disclose the substance of ex parte communications; the City failed to require rezoning of the subject property, and; Wal-Mart failed to timely submit a traffic study. The Petitioners next argue that the City's decision does not conform to the essential requirements of law because of incomplete abandonment of development of regional impact; the site plan violates the City's Code, and; the site plan violates the City's comprehensive land development plan. Lastly, the Petitioners argue that the Resolution is not supported by competent substantial evidence because the traffic study was incomplete and the City's decision was influenced by prejudice and bias.
Before addressing each issue, the Court reiterates that in conducting certiorari review of the underlying action it has neither the duty nor the authority to decide whether it is good public policy to allow Wal-Mart to build a supercenter at this particular location. Rather, as set forth in Haines City, this Court's review is governed by a three-part standard: whether procedural due process has been accorded; whether the essential requirements of law were observed; and, whether the findings and judgment are supported by competent substantial evidence. See Haines City, 658 So.2d at 530. In applying the procedural due process prong, the Court must consider whether the Petitioners were provided with fair notice and an opportunity to be heard. See Keys Citizen for Responsible Government, Inc. v. Florida Keys Aqueduct Authority, 795 So.2d 940, 938 (Fla. 2001) (explaining the parameters of due process within an administrative proceeding). In determining whether the City observed the essential requirements of law, the Court must consider whether an error occurred and, if so, whether such error resulted in a gross miscarriage of justice. See Haines, 658 So.2d at 527; see also Housing Authority of the City of Tampa v. Burton, 874 So.2d 6, 8 (Fla. 2d DCA 2004) (explaining that in determining whether there has been a departure from the essential requirements of law, the appellate court “should not be as concerned with the mere existence of legal error as much as with the seriousness of the error”).
In evaluating the last prong of review, competent substantial evidence has been described as evidence that is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.” See Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002) (citing De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957). The Court is not entitled to reweigh the evidence or substitute its judgment for that of the agency. See id. As aptly explained by the Florida Supreme Court in Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1276 (Fla. 2001), the certiorari standard of review requires this Court to defer to the City's “superior technical expertise and special vantage point” in its policy determinations and factual findings. As Dusseau further clarified,
The issue before this court is not whether the agency's decision is the “best” decision or the “right” decision or even a “wise” decision, for these are technical and policy-based determinations properly within the purview of the agency. The circuit court has no training or experience -- and is inherently unsuited -- to sit as a roving “super agency” with plenary oversight of such matters.
With that standard in mind, the Court reaches the following decision as to each issue.
Due Process
1. Failure to disclose substance of ex parte communications
The Court finds that before the hearing began on January 18th, the City Commissioners disclosed on the record any ex parte communications they had with either side. All of the Commissioners disclosed that they had talked with opponents of the site plan proposal; 4 of the 5 Commissioners disclosed that they had talked with Wal-Mart representatives. The Petitioners did not object to the fact that there were ex parte communications, nor request any additional clarification as to the nature or extent of such communications. The law is well-settled that issues may not be raised for the first time on certiorari review which were not presented to the lower tribunal during the quasi-judicial hearing. See G.B.V. International, Ltd. v. Broward County, 709 So.2d 155, 155 (Fla. 4th DCA 1998) (quashing decision of circuit court for deciding an issue that was neither presented or decided by the Commission), quashed in part on other grounds, 787 So.2d 838 (Fla. 2001); see also Scritchfield v. Dept. of Highway Safety and Motor Vehicles, 648 So.2d 1246, 1247 (Fla. 2d DCA 1995) (stating that without objection the argument has been waived). Hence, the Court finds that the Petitioners have waived this argument as no objection was made during the proceedings below. Had a proper objection been made, the City Commissioners could have effectively dealt with the Petitioners' concerns.
2. Failure to require rezoning of the subject property
There are no facts, nor any legal authority, cited by the Petitioners that the City rezoned the property, de facto, without requiring Wal-Mart to go through the necessary rezoning process. The Petitioners' argument is that the property's current zoning, GB, does not allow for the development of a Wal-Mart Supercenter. As explained in greater depth below, the Court finds that the proposed development of Lot 1 squarely falls within the GB zoning classification. Further, there is no dispute that Lot 2, which is not a part of the development of Lot 1, is not properly zoned for residential development. As a condition of the Resolution, Wal-Mart will be required to go through the proper rezoning process before any residential development can proceed at which time the Petitioners can present any objections they may have to such proposed development.
3. Failure to timely submit traffic study
As with the ex parte communications issue, the Court finds that the Petitioners have waived this argument by failing to expressly object to the introduction of the Supplement Traffic Analysis during the January 18th hearing. See id. The Petitioners did not request additional time to review the traffic report. Further, even if the Petitioners had not waived this argument, the record shows that the Petitioners were fully afforded the right to present evidence and testimony during the January 18th hearing, as well as the opportunity to cross-examine the traffic experts presented by the City and Wal-Mart. Under these facts, the Courts finds that the Petitioners were afforded procedural due process.
Essential Requirements of Law
1. Incomplete abandonment of development of regional impact
In reviewing this issue, the Court finds that the Petitioners do not have standing to argue this matter as Florida Statutes, § 380.07(2), confers standing only to the owner, developer, or state land planning agency to appeal a DRI development order or abandonment order; even then, the order must be appealed to the Florida Land and Water Adjudicatory Commission. However, assuming this issue were properly before the Court, there is no support for the Petitioners' argument that the DRI Abandonment Order, entered beyond the 90-day time frame due to scheduling delays caused by three hurricanes, is a nullity. See e.g. Caliente Partnership v. Johnston, 604 So.2d 886, 887 (Fla. 2d DCA 1991) (holding that the failure to publish a notice of intent for a plan amendment within the statutorily prescribed forty-five days is not grounds for approval by default); School Board of Leon County v. Weaver, 556 So.2d 443, 446 (Fla. 1st DCA 1990) (holding that failure to enter a final order within the statutorily prescribed ninety days from receipt of a recommended order does not warrant reversal unless the fairness of the proceeding or the correctness of the action is impaired by virtue of the statute's violation).
2. Proposed use of the site plan violates the City's Code: (a) the site plan does not comply with the Code; (b) the site plan circumvents procedural requirements for conditional uses, and; (c) the site plan application is incomplete
The Court finds that the proposed use of the site plan, specifically Lot 1, is a permitted use in a GB zoning. The City's Code, Section 25.11 states, in pertinent part:
(A) The GB District is established to provide for the development of a centralized commercial area where specialty retail, restaurant, office and residential uses are readily available. This district is intended to encourage redevelopment of traditional shopping areas and promote cultural tourism within the National Register Historic District and Cultural Preservation District which function to serve the immediate residential neighborhoods and the community as a whole.
(B) Permitted uses; (15) Retail Sales Establishments; (18) Shopping Centers. (emphasis added).
As previously stated, “Retail Sales Establishment” includes “[a]ny establishment where the primary use is the sale of goods or merchandise to the general public for personal or household consumption.”2
The Petitioners focus on the words “specialty retail” to argue that the proposed development is not a permitted use under GB zoning. However, while the intent of the GB district is to encourage specialty retail, the district does not limit retail solely to “specialty.” Rather, the Code unambiguously and expressly allows for retail sales establishments, as well as shopping centers, with no limitation to specialty retail. The Court finds that the Wal-Mart Supercenter falls squarely within the definition of a “Retail Sales Establishment” and, for all practical purposes, is essentially a Shopping Center. To find that development in the GB zoning is limited only to specialty retail would render portions of the Code a nullity. See Florida Dept. of Revenue v. Florida Municipal Power Agency, 789 So.2d 320, 324 (Fla. 2001) (explaining that a court's function is to interpret statutes to give effect to each word and avoid interpretations that would render portions of it useless); see also Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273, 1286 (Fla. 2000) (same). The Court finds that under these facts, it must defer to the City's interpretation that the proposed Wal-Mart is a permitted use within the GB zoning. See Palm Beach, 772 So.2d at 1283 (explaining that courts will defer to an agency's interpretation of statutes and rules the agency is charge with enforcing unless contrary to law); see also Paloumbis v. City of Miami Beach, 840 So.2d 297, 298-98 (Fla. 3rd DCA 2003) (holding that administrative interpretation of personnel rules is entitled to judicial deference as long as it is within the range of possible interpretations).
3. The site plan violates the comprehensive plan
The Petitioners argue that the City erred in approving the site plan without first requiring Wal-Mart to seek conditional use approval for potential future residential development of Lot 2. However, one condition of the Resolution is that plat approval is required for the subdivision of the property into three lots. Further, the Development Agreement requires the property owner, Wal-Mart, to seek rezoning of Lot 2 from GB to Residential Office (RO), within 18 months of the effective date of the Development Agreement, and further states that no residential development will be permitted without the appropriate permits. As held above, the Petitioners will have an opportunity to be heard if, at some point in the future, Wal-Mart seeks to rezone Lot 2 from GB to RO for residential development. Lastly, to the extent that the Petitioners seek to challenge the of the consistency of the Resolution with the City's Comprehensive Plan, such a challenge must be pursued as an action for declaratory and injunctive relief pursuant to Florida Statutes, § 163.3215(1).3 See Parker v. Leon County, 627 So.2d 476, 478-79 (Fla. 1993); see also Turner v. Sumter County, Board Of County Commissioners, 649 So.2d 276, 276 (Fla. 5th DCA 1993).
Competent substantial evidence
1. Incomplete traffic study
The Court finds that there is nothing in the record to show that the Supplemental Traffic Study was incomplete. Rather, the record shows that the City Commission considered the testimony and evidence presented from the City's Planning and Zoning Director, the City's Development Services Director, the City's traffic consultant, Wal-Mart's project engineer and Wal-Mart's planning expert, along with the Staff Report recommending approval of the Wal-Mart site plan before concluding that the traffic study was sufficient to support its decision to approve the Site Plan. The Court cannot reweigh the evidence nor substitute its judgment for that of the City to arrive at a different conclusion. See Dusseau, supra.
Further, the Court finds that the traffic impact on the proposed development is still subject to review by the City. As set forth in condition # 6 of the Resolution, Wal-Mart must still submit a revised traffic impact study to be reviewed for compliance with the City's transportation concurrency management requirements before any development permits will be issued.
2. Evidence of prejudice and bias
In reviewing the last issue, the Court finds that the City attorney did prepare a memorandum, at the request of the City's Mayor, dated January 10, 2005, and addressed to the City Commission, that outlined possible litigation issues that could arise from granting or denying Wal-Mart's proposed site plan. The Court finds that, standing alone, it is not inappropriate for the City to consider the legal consequences of its actions. In the memorandum, the City Attorney stressed that the City Commission must base its decision on competent substantial evidence presented at the hearing and not on possible litigation that might arise from its decision. While some Commission members may have been influenced, to some degree, by concern about litigation, there is nothing in the record to suggest that this was the basis for any votes. Furthermore, this has nothing to do with the sufficiency of the evidence.
In conclusion, the Court finds that the Petitioners were afforded procedural due process, the City observed the essential requirements of law, and the Resolution is supported by competent substantial evidence. Accordingly, the Petitioners' request for certiorari relief must be denied.
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby denied. (DAVID A. DEMERS, PETER RAMSBERGER, and ANTHONY RONDOLINO, JJ.)
__________________
1As a preliminary matter, this Court, in an order entered July 28, 2005, granted, in part, the Respondents' motion to dismiss amended petition based on lack of standing. The motion to dismiss was granted only to the extent that the Court had no jurisdiction over those Petitioners not named in the original petition. Concerned Citizens, incorporated after the underlying hearing but comprised of citizens with standing to appeal, and the remaining named Petitioners were allowed to proceed with the petition for writ of certiorari.
2There is not a definition of “Shopping Center” provided in the record. However, the Court finds that the term Shopping Center is self-explanatory and unambiguous.
3The Court notes that there is a separate declaratory action, filed by the Petitioners pursuant to Florida Statutes, § 163.3215, currently pending at the trial court level.
The court started out by dismissing the Petitioners' due process claims on the basis that they failed to make objections on the record to a) ex parte contacts, b) surprise in a party offering a late filed new report.
Here's critical language that could be used by any and all sides in cert actions:
OK, this is good stuff - and keep it handy for when the chairman of a planning board or county commission objects to your objections. The problem, of course, is that most local government procedures don't formally recognize parties other than the applicant and the staff, and there's generally no way to object other than to stand up from the audience and interrupt.The Petitioners did not object to the fact that there were ex parte
communications, nor request any additional clarification as to the nature or
extent of such communications. The law is well-settled that issues may not be
raised for the first time on certiorari review which were not presented to the
lower tribunal during the quasi-judicial hearing. See G.B.V. International, Ltd.
v. Broward County, 709 So.2d 155, 155 (Fla. 4th DCA 1998) (quashing decision of
circuit court for deciding an issue that was neither presented or decided by the
Commission), quashed in part on other grounds, 787 So.2d 838 (Fla. 2001); see
also Scritchfield v. Dept. of Highway Safety and Motor Vehicles, 648 So.2d 1246,
1247 (Fla. 2d DCA 1995) (stating that without objection the argument has been
waived). Hence, the Court finds that the Petitioners have waived this argument
as no objection was made during the proceedings below. Had a proper objection
been made, the City Commissioners could have effectively dealt with the
Petitioners' concerns.
The real use of this language, however, is for those of us poor souls who get a completely BS denial at the hands of a commission, file cert, and then find the government attorney raising all kinds of new issues ("gee, your honr, they weren't compatible with policy x.y.z," even though no one ever raised that policy during the hearing).
But then on to the bad stuff (and this is bad regardless of whether you represent neighbors/environmental groups or developers/landowners). The Court abandons its responsibility to "say what the law is" (see 3d DCA cases earlier) to the local government, in this language:
The Court is not entitled to reweigh the evidence or substitute its judgment for
that of the agency. See id. As aptly explained by the Florida Supreme Court
in Dusseau v. Metropolitan Dade County Board of County Commissioners, 794
So.2d 1270, 1276 (Fla. 2001), the certiorari standard of review requires
this Court to defer to the City's “superior technical expertise and special
vantage point” in its policy determinations and factual findings. As Dusseau
further clarified,
Horse hockey. A city commission, county commission or even planning commission has no special expertise at interpreting ordinances. They do have political agendas. This judicial attempt to establish some kind of "principled abdication" of its constitutional responsibility to ensure that the law is fairly and reasonable intepreted is nothing but a cop out, one that leaves the polity at the mercy of the government.The issue before this court is not whether the agency's decision is the “best”
decision or the “right” decision or even a “wise” decision, for these are
technical and policy-based determinations properly within the purview of the
agency. The circuit court has no training or experience -- and is inherently
unsuited -- to sit as a roving “super agency” with plenary oversight of such
matters
And I'll also say that while I think the right result occured, the court also erred in how it approached the analysis of whether the WalMart was a permitted use in the zone district. There was a clear ambiguity or inconsistency between the intent of the district - to allow specialty retail -- and the specific permitted uses -- which included retail stores (without limitation) and shopping centers.
The issue: "specialty retail" is a land use and transportation planning term of art, and it does NOT include big box stores like WalMarts. Based on the intent of the district, as properly interpreted by planning experts, not commissioners, the WalMart was NOT permitted. However, the actual permitted uses included retail uses and shopping centers. Absent a seperate definition of "big box" that distinguished these bohemeths from true specialty retail uses, the rules of construction (remember - zoning in derogation of private property rights, so interpretation goes to the landowner) demand that the more specific (the use) rule over the more general (the intent). THAT'S the kind of analysis we need from our courts to ensure that zoning regulations are interpreted fairly for all sides. Abandoning that reasoning to the local government (unless they actually do it and do it right - HAH), is like putting Dick Chaney in charge of the Justice Dep'ts Division of Civil Rights - or appointing him to sit on a FISA tribunal.
Finally, the court rolled out the tired (and IMHO wrong at 1st tier review) old "miscarriage of justice" standard that started out its life as a policy to help narrow 2d tier review, but now has got a life of its own ensuring that the circuit courts don't actually do justice in these cases (violating our right to access to the courts, if you think about it).
Anyway - here's the the opinion:
13 Fla. L. Weekly Supp. 774a
CONCERNED CITIZENS OF TARPON SPRINGS, INC., HARRY BATUYIOS, DENNIS BROWN, DOROTHY BROWN, WENDY CROSATO, BRIAN R. CROSATO, JEAN DORRELL, HELEN GLADWIN, BILL GLADWIN, WILLIAM HOOPER, CHRIS HRABOVSKY, RICHARD MURDACH, EDWARD SKAALAND, JOAN SKAALAND, JOHN K. TARAPANI, CHARLES VAN WINKLE, SHARON VAN WINKLE, and WILLIAM L. VINSON, Petitioners, vs. CITY OF TARPON SPRINGS, FLORIDA, and WAL-MART STORES EAST, LP, Respondents. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 05-0014AP-88B. UCN522005AP000014XXXXCV. March 22, 2006. Counsel: C. Phillip Campbell, Theodore C. Taub, Tammy N. Giroux, and Mark A. Connolly, Tampa. John G. Hubbard, Dunedin. David A. Theriaque, Suzanne Van Wyk, Timothy E. Dennis, Tallahassee.
ORDER DENYING AMENDED PETITION
FOR WRIT OF CERTIORARI
THIS CAUSE came before the Court on the Amended Petition for Writ of Certiorari, the Joint Response to Second Order to Show Cause, and the Petitioners' Reply. Upon consideration of the briefs, the record and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.
The Petitioners, Concerned Citizens of Tarpon Springs, Inc., Harry Batuyios, Dennis Brown, Dorothy Brown, Wendy Crosato, Brian R. Crosato, Jean Dorrell, Helen Gladwin, Bill Gladwin, William Hooper, Chris Hrabovsky, Richard Murdach, Edward Skaaland, Joan Skaaland, John K. Tarapani, Charles Van Winkle, Sharon Van Winkle, and William L. Vinson (Petitioners), seek review of Resolution 2004-63, entered January 19, 2005, by the Respondent, City of Tarpon Springs, Florida (City), to approve the site plan, with conditions, submitted by the Respondent, Wal-Mart Stores East, LP (Wal-Mart). These Petitioners have standing.1 In reviewing the administrative action taken by the City, the Court must consider whether the Petitioners were afforded procedural due process, whether the essential requirements of law were observed and whether the Resolution is supported by competent substantial evidence. See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995) (setting forth the standard of certiorari review of administrative action).
The record shows that Wal-Mart submitted a site plan proposal for the development of a 74.4 acre parcel of land, described as Lot 1, located off of U.S. 19 and bordered on one side by the Anclote River. There are two other designated lots, Lot 2 and Lot 3, and other designated tracts on the property which do not directly involve the Wal-Mart proposal. The land is currently zoned General Business (GB), which specifically includes “Retail Sales Establishments” and “Shopping Centers” as permitted uses. Retail Sales Establishments is defined in the City's Code as: “Any establishment where the primary use is the sale of goods or merchandise to the general public for personal or household consumption.”
After a 13-hour public hearing, the Board of Commissioners of the City of Tarpon Springs (City Commission), in a 3 to 2 vote, approved Resolution 2004-63. The Resolution approved the site plan with several conditions, to wit:
1. The developer is responsible for acquiring all other jurisdictional permits and for meeting the minimum criteria of the Land Development Code.
2. Construction plans, signed and sealed by a registered engineer licensed to practice in the State of Florida, must be submitted within one year of the date of final site plan approval.
3. All conditions and requirements of the final Development Agreement (ATTACHMENT B) must be performed on a timely basis, as applicable.
4. Master meters and utility line adjustments per the requirements of the City of Tarpon Springs Utility Division.
5. Plat approval is required for the subdivision into three lots.
6. Submission of revised traffic impact study with follow-on review by TBE Group for compliance with City of Tarpon Springs transportation concurrency management requirements or reduction of scope of project to within 50% of allowable floor area ratio. No development permits will be issued until concurrency requirements are accomplished.
7. A 50' buffer is required along the Anclote River.
8. A physical barrier is required between the Anclote River and the building/parking lot to prevent run-off into the river.
The Development Agreement, incorporated into the Resolution as Attachment B, is a 24-page document that sets forth several more conditions and restrictions, including that the owner must seek rezoning of Lot 2 from GB to Residential Office (RO), within 18 months of the effective date of the Development Agreement, to be compatible with the City's land-use classification. The Development Agreement clarifies that no residential development is permitted without the appropriate permits to allow residential use. Lot 3 is to be limited to development of a maximum of 8,000 square feet of commercial retail.
The Petitioners have raised several issues before this Court. The Petitioners first argue that they were denied due process as the City Commission failed to disclose the substance of ex parte communications; the City failed to require rezoning of the subject property, and; Wal-Mart failed to timely submit a traffic study. The Petitioners next argue that the City's decision does not conform to the essential requirements of law because of incomplete abandonment of development of regional impact; the site plan violates the City's Code, and; the site plan violates the City's comprehensive land development plan. Lastly, the Petitioners argue that the Resolution is not supported by competent substantial evidence because the traffic study was incomplete and the City's decision was influenced by prejudice and bias.
Before addressing each issue, the Court reiterates that in conducting certiorari review of the underlying action it has neither the duty nor the authority to decide whether it is good public policy to allow Wal-Mart to build a supercenter at this particular location. Rather, as set forth in Haines City, this Court's review is governed by a three-part standard: whether procedural due process has been accorded; whether the essential requirements of law were observed; and, whether the findings and judgment are supported by competent substantial evidence. See Haines City, 658 So.2d at 530. In applying the procedural due process prong, the Court must consider whether the Petitioners were provided with fair notice and an opportunity to be heard. See Keys Citizen for Responsible Government, Inc. v. Florida Keys Aqueduct Authority, 795 So.2d 940, 938 (Fla. 2001) (explaining the parameters of due process within an administrative proceeding). In determining whether the City observed the essential requirements of law, the Court must consider whether an error occurred and, if so, whether such error resulted in a gross miscarriage of justice. See Haines, 658 So.2d at 527; see also Housing Authority of the City of Tampa v. Burton, 874 So.2d 6, 8 (Fla. 2d DCA 2004) (explaining that in determining whether there has been a departure from the essential requirements of law, the appellate court “should not be as concerned with the mere existence of legal error as much as with the seriousness of the error”).
In evaluating the last prong of review, competent substantial evidence has been described as evidence that is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.” See Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002) (citing De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957). The Court is not entitled to reweigh the evidence or substitute its judgment for that of the agency. See id. As aptly explained by the Florida Supreme Court in Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1276 (Fla. 2001), the certiorari standard of review requires this Court to defer to the City's “superior technical expertise and special vantage point” in its policy determinations and factual findings. As Dusseau further clarified,
The issue before this court is not whether the agency's decision is the “best” decision or the “right” decision or even a “wise” decision, for these are technical and policy-based determinations properly within the purview of the agency. The circuit court has no training or experience -- and is inherently unsuited -- to sit as a roving “super agency” with plenary oversight of such matters.
With that standard in mind, the Court reaches the following decision as to each issue.
Due Process
1. Failure to disclose substance of ex parte communications
The Court finds that before the hearing began on January 18th, the City Commissioners disclosed on the record any ex parte communications they had with either side. All of the Commissioners disclosed that they had talked with opponents of the site plan proposal; 4 of the 5 Commissioners disclosed that they had talked with Wal-Mart representatives. The Petitioners did not object to the fact that there were ex parte communications, nor request any additional clarification as to the nature or extent of such communications. The law is well-settled that issues may not be raised for the first time on certiorari review which were not presented to the lower tribunal during the quasi-judicial hearing. See G.B.V. International, Ltd. v. Broward County, 709 So.2d 155, 155 (Fla. 4th DCA 1998) (quashing decision of circuit court for deciding an issue that was neither presented or decided by the Commission), quashed in part on other grounds, 787 So.2d 838 (Fla. 2001); see also Scritchfield v. Dept. of Highway Safety and Motor Vehicles, 648 So.2d 1246, 1247 (Fla. 2d DCA 1995) (stating that without objection the argument has been waived). Hence, the Court finds that the Petitioners have waived this argument as no objection was made during the proceedings below. Had a proper objection been made, the City Commissioners could have effectively dealt with the Petitioners' concerns.
2. Failure to require rezoning of the subject property
There are no facts, nor any legal authority, cited by the Petitioners that the City rezoned the property, de facto, without requiring Wal-Mart to go through the necessary rezoning process. The Petitioners' argument is that the property's current zoning, GB, does not allow for the development of a Wal-Mart Supercenter. As explained in greater depth below, the Court finds that the proposed development of Lot 1 squarely falls within the GB zoning classification. Further, there is no dispute that Lot 2, which is not a part of the development of Lot 1, is not properly zoned for residential development. As a condition of the Resolution, Wal-Mart will be required to go through the proper rezoning process before any residential development can proceed at which time the Petitioners can present any objections they may have to such proposed development.
3. Failure to timely submit traffic study
As with the ex parte communications issue, the Court finds that the Petitioners have waived this argument by failing to expressly object to the introduction of the Supplement Traffic Analysis during the January 18th hearing. See id. The Petitioners did not request additional time to review the traffic report. Further, even if the Petitioners had not waived this argument, the record shows that the Petitioners were fully afforded the right to present evidence and testimony during the January 18th hearing, as well as the opportunity to cross-examine the traffic experts presented by the City and Wal-Mart. Under these facts, the Courts finds that the Petitioners were afforded procedural due process.
Essential Requirements of Law
1. Incomplete abandonment of development of regional impact
In reviewing this issue, the Court finds that the Petitioners do not have standing to argue this matter as Florida Statutes, § 380.07(2), confers standing only to the owner, developer, or state land planning agency to appeal a DRI development order or abandonment order; even then, the order must be appealed to the Florida Land and Water Adjudicatory Commission. However, assuming this issue were properly before the Court, there is no support for the Petitioners' argument that the DRI Abandonment Order, entered beyond the 90-day time frame due to scheduling delays caused by three hurricanes, is a nullity. See e.g. Caliente Partnership v. Johnston, 604 So.2d 886, 887 (Fla. 2d DCA 1991) (holding that the failure to publish a notice of intent for a plan amendment within the statutorily prescribed forty-five days is not grounds for approval by default); School Board of Leon County v. Weaver, 556 So.2d 443, 446 (Fla. 1st DCA 1990) (holding that failure to enter a final order within the statutorily prescribed ninety days from receipt of a recommended order does not warrant reversal unless the fairness of the proceeding or the correctness of the action is impaired by virtue of the statute's violation).
2. Proposed use of the site plan violates the City's Code: (a) the site plan does not comply with the Code; (b) the site plan circumvents procedural requirements for conditional uses, and; (c) the site plan application is incomplete
The Court finds that the proposed use of the site plan, specifically Lot 1, is a permitted use in a GB zoning. The City's Code, Section 25.11 states, in pertinent part:
(A) The GB District is established to provide for the development of a centralized commercial area where specialty retail, restaurant, office and residential uses are readily available. This district is intended to encourage redevelopment of traditional shopping areas and promote cultural tourism within the National Register Historic District and Cultural Preservation District which function to serve the immediate residential neighborhoods and the community as a whole.
(B) Permitted uses; (15) Retail Sales Establishments; (18) Shopping Centers. (emphasis added).
As previously stated, “Retail Sales Establishment” includes “[a]ny establishment where the primary use is the sale of goods or merchandise to the general public for personal or household consumption.”2
The Petitioners focus on the words “specialty retail” to argue that the proposed development is not a permitted use under GB zoning. However, while the intent of the GB district is to encourage specialty retail, the district does not limit retail solely to “specialty.” Rather, the Code unambiguously and expressly allows for retail sales establishments, as well as shopping centers, with no limitation to specialty retail. The Court finds that the Wal-Mart Supercenter falls squarely within the definition of a “Retail Sales Establishment” and, for all practical purposes, is essentially a Shopping Center. To find that development in the GB zoning is limited only to specialty retail would render portions of the Code a nullity. See Florida Dept. of Revenue v. Florida Municipal Power Agency, 789 So.2d 320, 324 (Fla. 2001) (explaining that a court's function is to interpret statutes to give effect to each word and avoid interpretations that would render portions of it useless); see also Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273, 1286 (Fla. 2000) (same). The Court finds that under these facts, it must defer to the City's interpretation that the proposed Wal-Mart is a permitted use within the GB zoning. See Palm Beach, 772 So.2d at 1283 (explaining that courts will defer to an agency's interpretation of statutes and rules the agency is charge with enforcing unless contrary to law); see also Paloumbis v. City of Miami Beach, 840 So.2d 297, 298-98 (Fla. 3rd DCA 2003) (holding that administrative interpretation of personnel rules is entitled to judicial deference as long as it is within the range of possible interpretations).
3. The site plan violates the comprehensive plan
The Petitioners argue that the City erred in approving the site plan without first requiring Wal-Mart to seek conditional use approval for potential future residential development of Lot 2. However, one condition of the Resolution is that plat approval is required for the subdivision of the property into three lots. Further, the Development Agreement requires the property owner, Wal-Mart, to seek rezoning of Lot 2 from GB to Residential Office (RO), within 18 months of the effective date of the Development Agreement, and further states that no residential development will be permitted without the appropriate permits. As held above, the Petitioners will have an opportunity to be heard if, at some point in the future, Wal-Mart seeks to rezone Lot 2 from GB to RO for residential development. Lastly, to the extent that the Petitioners seek to challenge the of the consistency of the Resolution with the City's Comprehensive Plan, such a challenge must be pursued as an action for declaratory and injunctive relief pursuant to Florida Statutes, § 163.3215(1).3 See Parker v. Leon County, 627 So.2d 476, 478-79 (Fla. 1993); see also Turner v. Sumter County, Board Of County Commissioners, 649 So.2d 276, 276 (Fla. 5th DCA 1993).
Competent substantial evidence
1. Incomplete traffic study
The Court finds that there is nothing in the record to show that the Supplemental Traffic Study was incomplete. Rather, the record shows that the City Commission considered the testimony and evidence presented from the City's Planning and Zoning Director, the City's Development Services Director, the City's traffic consultant, Wal-Mart's project engineer and Wal-Mart's planning expert, along with the Staff Report recommending approval of the Wal-Mart site plan before concluding that the traffic study was sufficient to support its decision to approve the Site Plan. The Court cannot reweigh the evidence nor substitute its judgment for that of the City to arrive at a different conclusion. See Dusseau, supra.
Further, the Court finds that the traffic impact on the proposed development is still subject to review by the City. As set forth in condition # 6 of the Resolution, Wal-Mart must still submit a revised traffic impact study to be reviewed for compliance with the City's transportation concurrency management requirements before any development permits will be issued.
2. Evidence of prejudice and bias
In reviewing the last issue, the Court finds that the City attorney did prepare a memorandum, at the request of the City's Mayor, dated January 10, 2005, and addressed to the City Commission, that outlined possible litigation issues that could arise from granting or denying Wal-Mart's proposed site plan. The Court finds that, standing alone, it is not inappropriate for the City to consider the legal consequences of its actions. In the memorandum, the City Attorney stressed that the City Commission must base its decision on competent substantial evidence presented at the hearing and not on possible litigation that might arise from its decision. While some Commission members may have been influenced, to some degree, by concern about litigation, there is nothing in the record to suggest that this was the basis for any votes. Furthermore, this has nothing to do with the sufficiency of the evidence.
In conclusion, the Court finds that the Petitioners were afforded procedural due process, the City observed the essential requirements of law, and the Resolution is supported by competent substantial evidence. Accordingly, the Petitioners' request for certiorari relief must be denied.
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby denied. (DAVID A. DEMERS, PETER RAMSBERGER, and ANTHONY RONDOLINO, JJ.)
__________________
1As a preliminary matter, this Court, in an order entered July 28, 2005, granted, in part, the Respondents' motion to dismiss amended petition based on lack of standing. The motion to dismiss was granted only to the extent that the Court had no jurisdiction over those Petitioners not named in the original petition. Concerned Citizens, incorporated after the underlying hearing but comprised of citizens with standing to appeal, and the remaining named Petitioners were allowed to proceed with the petition for writ of certiorari.
2There is not a definition of “Shopping Center” provided in the record. However, the Court finds that the term Shopping Center is self-explanatory and unambiguous.
3The Court notes that there is a separate declaratory action, filed by the Petitioners pursuant to Florida Statutes, § 163.3215, currently pending at the trial court level.
The 2d DCA Needs to Adopt the 3d's Strong Position on Judicial Review of QJ Decisions (or)
Circuit courts sitting in their appellate capacity keep abdicating their constitutional responsibility to police local boards and the implementation of local ordinances.
The travesty below was issued by a 3 judge appellate panel in Pinellas County, which in the same term issued several other similar decisions simply abdicating their responsibility to provide judicial oversight in the name of various policies respecting the "wisdom" of lower governments.
Here's the ugliest (opinion is below, taken as an excerpt from Fla Law Supp): St Pete Code Enforcement decides that a handicapped van is a "commercial vehicle" because it's too high to meet a "domestic vehicle" definition. A commercial vehicle is a "any vehicle and/or equipment not contained within the definition of domestic equipment. that is designed or used for commercial or industrial function. "
The city, and the court, simply ignored the rules of construction that a) demand that zoning regulations be strictly construed against the government, and that b) that courts (and quasi-tribunals) may neither add nor subtractlanguagee from an ordinance. Here, the local government simply wrote the last part out, and then the court found that there was competent substantial evidence to support the application of the ordinance as re-written (noting that the record is completelyy absent of any indication that the van was "designed or used for a commercial or industrial function.")
In effect, the Board put the burden of proof on the applicant - not for the variance, but for the need for one. This is just plain wrong.
BAD, BAD, BAD. We desperately need statutory correction, because nothing else will really fix this. But in the meantime, some appellate direction indicating that lower courts must interpret the law AND NOT DEFER TO SELF SERVING, NON-JUDICIAL (INTEMPERAMENTT OR RESULT) INTERPRETATIONS OF LOCAL BOARDS. The judiciary is our ONLY bulkwart against authoritarianism at that local level. We need the judiciary to take its supervisory role seriously.
And in this case, the result is simply vile. Go on, handicapped people, move outbecausee you're not welcome in a good residential neighborhood anymore. Or at least not if actually want to have access to transportation of your own. Maybe you can live in your van behind a mall somewhere. It's enough to cause one to wish Lou Gherig's disease on whatever self-righteous code enforcement officer who actually brought this case forward.
Here's the opinion. The really bad stuff is in bold.
13 Fla. L. Weekly Supp. 776a
FRANK RIGO, Petitioner, vs. CITY OF ST. PETERSBURG, FLORIDA, and the BOARD OF ADJUSTMENT of the CITY OF ST. PETERSBURG, FLORIDA, Respondents. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 05-0065AP-88B. UCN522005AP000065XXXXCV. April 25, 2006. Counsel: Aubrey O. Dicus, St. Petersburg. Pamela D. Cichon, Sr. Assistant City Attorney, St. Petersburg.
ORDER DENYING PETITION FOR WRIT OF CERTIORARI
Therefore, it is,
ORDERED AND ADJUDGED that Petition for Writ of Certiorari is hereby denied. (DAVID A. DEMERS, PETER RAMSBERGER, and ANTHONY RONDOLINO, JJ.)
The travesty below was issued by a 3 judge appellate panel in Pinellas County, which in the same term issued several other similar decisions simply abdicating their responsibility to provide judicial oversight in the name of various policies respecting the "wisdom" of lower governments.
Here's the ugliest (opinion is below, taken as an excerpt from Fla Law Supp): St Pete Code Enforcement decides that a handicapped van is a "commercial vehicle" because it's too high to meet a "domestic vehicle" definition. A commercial vehicle is a "any vehicle and/or equipment not contained within the definition of domestic equipment. that is designed or used for commercial or industrial function. "
The city, and the court, simply ignored the rules of construction that a) demand that zoning regulations be strictly construed against the government, and that b) that courts (and quasi-tribunals) may neither add nor subtractlanguagee from an ordinance. Here, the local government simply wrote the last part out, and then the court found that there was competent substantial evidence to support the application of the ordinance as re-written (noting that the record is completelyy absent of any indication that the van was "designed or used for a commercial or industrial function.")
In effect, the Board put the burden of proof on the applicant - not for the variance, but for the need for one. This is just plain wrong.
BAD, BAD, BAD. We desperately need statutory correction, because nothing else will really fix this. But in the meantime, some appellate direction indicating that lower courts must interpret the law AND NOT DEFER TO SELF SERVING, NON-JUDICIAL (INTEMPERAMENTT OR RESULT) INTERPRETATIONS OF LOCAL BOARDS. The judiciary is our ONLY bulkwart against authoritarianism at that local level. We need the judiciary to take its supervisory role seriously.
And in this case, the result is simply vile. Go on, handicapped people, move outbecausee you're not welcome in a good residential neighborhood anymore. Or at least not if actually want to have access to transportation of your own. Maybe you can live in your van behind a mall somewhere. It's enough to cause one to wish Lou Gherig's disease on whatever self-righteous code enforcement officer who actually brought this case forward.
Here's the opinion. The really bad stuff is in bold.
13 Fla. L. Weekly Supp. 776a
FRANK RIGO, Petitioner, vs. CITY OF ST. PETERSBURG, FLORIDA, and the BOARD OF ADJUSTMENT of the CITY OF ST. PETERSBURG, FLORIDA, Respondents. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 05-0065AP-88B. UCN522005AP000065XXXXCV. April 25, 2006. Counsel: Aubrey O. Dicus, St. Petersburg. Pamela D. Cichon, Sr. Assistant City Attorney, St. Petersburg.
ORDER DENYING PETITION FOR WRIT OF CERTIORARI
THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the
Response, and the Reply. Upon consideration of the briefs, the record and being
otherwise fully advised, the Court finds that the Petition must be denied as set
forth below.
The Petitioner, Frank Rigo (Rigo), seeks review of the
Development Order, entered July 15, 2005, in which the Respondents, City of St.
Petersburg, Florida (City) and the Board of Adjustment of the city of St.
Petersburg, Florida (Board), denied Rigo's variance request to allow a
commercial vehicle to be parked on his residential property. In reviewing the
administrative action taken by the Board, the Court must consider whether the
Petitioner was afforded procedural due process, whether essential requirements
of law were observed, and whether the Board's findings and judgment are
supported by competent substantial evidence. See Haines City Community
Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard
of certiorari review of administrative action).The record shows that Rigo lives within a residential zoning district within the City of St. Petersburg. Rigo is physically impaired and relies on handicap-equipped vehicles for transportation. The subject van measures 7.5 feet in height, is less than 20
feet in length, and resembles a box or bread van. The van was fitted by Rigo to
include a wheelchair lift. Rigo's property has a driveway in the front, entering
from a public roadway, where the van is parked. The Codes Compliance Assistance
Division determined that the van was a commercial vehicle/equipment and cited
Rigo for violating the City of St. Petersburg City Code (Code), Sec. 29-209(c),
which prohibits the parking of commercial equipment in any residential district.
Rigo filed an application for a variance to allow his van to be parked at
his residence. Between filing his application and the variance request hearing,
Rigo re-registered the van from Â?commercial vehicleÂ? to Â?handicapped personal
vehicle.Â? After the hearing, the Board denied the variance request finding that
the request did not meet Code criteria. The Board gave Rigo one year from the
date of the hearing to remove the van from his residential property.Before this Court, Rigo argues that the Board's decision is not supported by competent substantial evidence and that the Board departed from the essential requirements of law during the proceedings below. Initially, the Court finds that the Code generally allows for the parking of passenger motor vehicles and motorcycles on residential property. See Code, Sec. 29-209(a). To be considered a passenger
motor vehicle, the vehicle must be 20 feet or less in overall length and 7 feet
or less in overall height. It is undisputed that Rigo's van is 7.5 feet in
height and thus falls outside of the definition of a passenger motor vehicle.
Â?Commercial equipmentÂ? is defined in the City's Code as Â?any vehicle and/or
equipment not contained within the definition of Â?domestic equipment'1 which is
designed or used for a commercial or industrial function. . .Â? See Code, Sec.
29-2. The Code does allow one commercial vehicle, designed as a van or pick-up
truck, to be parked on residential property but only if the commercial vehicle
meets the length and height restrictions of a passenger motor vehicle, 20 feet
or less in length and 7 feet or less in height. As recognized above, the
Petitioner's vehicle does not meet this test.While the record does not show what the van was originally designed for, the Court finds that under these facts, it must defer to the City's interpretation that the subject van is a prohibited commercial vehicle. See Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273, 1283 (Fla. 2000)(explaining that courts will defer to an agency's interpretation of statutes and rules the agency is charge with
enforcing unless contrary to law); see also Paloumbis v. City of Miami Beach, 840 So.2d 297, 298-98 (Fla. 3rd DCA 2003)(holding that administrative interpretation of personnel rules is entitled to judicial deference as long as it is within the range of possible interpretations). It is undisputed that the van exceeds the height restrictions for a passenger or commercial vehicle to be parked on residential property. The Court finds that it is of no consequence that the van is currently registered as a handicapped personal vehicle.The Court also finds that it must defer to the City's finding that Rigo did not meet the requirements for a variance. See Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1276 (Fla. 2001) (providing that the certiorari standard of review requires this Court to defer to the City's Â?superior technical expertise and special vantage pointÂ? in its policy determinations and factual findings). The burden was on Rigo to demonstrate Â?an
exceptional and unique hardship to the individual landowner, unique to that
parcel and not shared by other property owners.Â? See Nance v. Town of
Indialantic, 419 So.2d 1041, 1041 (Fla. 1982). The Board considered the City's
Staff Report which outlined the variance criteria that Rigo's application failed
to meet, as well as testimony that Rigo's previous handicap-equipped van was
code compliant and used by Rigo for 10 years.
Accordingly, the Court finds that there is competent substantial evidence in the record to support the Board's decision and this Court is not permitted to reweigh the evidence presented. See Heggs, 658 So.2d at 530; see also Town of Manalapan v. Gyongyosi, 828 So.2d 1029, 1033 (Fla. 4th DCA 2002). Likewise, the Court can find no support for Rigo's argument that the City departed from the essential requirements of law in the proceedings below. Hence, the request for certiorari
relief must be denied.
Therefore, it is,
ORDERED AND ADJUDGED that Petition for Writ of Certiorari is hereby denied. (DAVID A. DEMERS, PETER RAMSBERGER, and ANTHONY RONDOLINO, JJ.)
Chủ Nhật, 20 tháng 8, 2006
2d DCA OK's Local Referenda for Plan Amendments (a win for blind populism vs. good planning)
In a decision that is REALLY BAD for good planning, and which didn't even address the 5th DCA's recent comment on the issue, the 2d DCA issued this opinion in Citizens for Responsible Growth v. City of St Pete Beach, overturning the trial judge's determination that imposing a referendum requirement for plan amendments conflicted with the statutory process set forth in Chapter 163.
OK, major disclosure: I'm directly involved in parallel litigation against CRG on the parallel issue of whether they can use a referendum process already in the city charter to repeal a plan amendment, and I've made the arguments rejected by the 2d DCA to the same trial judge.
Let's start with what the court got right. It found a) that the city had standing to bring up the constitutionality of proposed charter amendments, and b) that the trial court had jurisdiction to consider them prior to the election. Despite years of having this put to bed, the CRG had argued that the city couldn't fight this issue, and that it had to wait until after the election anyway.
The critical issues were whether the amendment procedures provided in the statute preempted the imposition of additional local requirements. In particular, the growth managment act has a "sole process" provision, and the question was whether it really means what it says. The counter was that there is a prohibition in the chapter against using referenda for plan amendments that affect 5 or fewer parcels, or for development orders. The court interpreted this as implicitly authorizing a procedure for using referenda for amendments that involve more than 5 parcels, and that referenda therefore were somehow authorized as part of the statutory process.
This is really, really weak logic when you think about it, especially in light of the purpose and needs of the statute and planning. The court ignored a slew of absolute real world problems that were also ignored by the Florida Supreme Court in approving the Hometown Demogagy amendment.
First, local governments are REQUIRED to update their plans annually for capital improvements and other issues. Roads, sewer lines, and other public facilities cannot be built if they are are not consistent with an adopted plan. Therefore, requiring all general plan amendments to be approved by referendum not only risks major disruption, it interferes with multiple functions of governments, including both executive and legislative functions.
Second, decisions (pro or con) on plan amendments must be based on data and analysis under the statute, not just on raw political preference. That is, while plan amendments are legislative, they also are constrained by actual (as opposed to assumed) facts and data. The amendment process completely, utterly and totally destroys that critical basis for the validity of the plan and planning in general. Instead, it renders the plan nothing more than a popularity forum to to allow existing residents to convert public property (like available capacity in a public street) to their private use.
The court simply didn't consider the second issue and got the first issue dead wrong. It believed the nonsensical position of the CRG that the Administration Commission could sanction a local government for not adopting plans and that the regional planning council could adopt any missing elements. Well, folks, that just BS, a blatent misrepresentation of the law by the CRG, and hopefully will be fixed on reconsideration. Those parts of the statute only applied to the original plan adoptions under the statute, NOT to amendments to plans that already had been found in compliance.
So it all comes down to public plebescites on land use. Let's be clear: if planning is by referenda, there is no planning. There's just saying no to change, regardless of the needs of the larger community and whatever "rights" might be left to landowners.
And some will say this is really tacky (if not inflammatory) but the reason we have a constitution and limits on direct democracy is that voting or democratic processes don't generally promote democracy: remember always that Hitler was elected democratically.
Well, there are some other fights on this issues still to come. For example, article i, section 5 of the constitution requires that referenda be as "provided by law." That means STATE LAW, not a local charter. Well, there's no explicit provision for conducting referenda on plan amendments that you can find anywhere in the Florida Statutes, and to my knowledge, there's no special act authorizing St Pete Beach to have such referenda.
So, anyway, the forces of demogagy, bad planning, and the conversion of public infrastructure to the private use of existing residents won this time. Too bad -- at some point they're just asking for the whole process to be gutted or legislatively directed to sidestep all this fascistic psuedo-democracy.
OK, major disclosure: I'm directly involved in parallel litigation against CRG on the parallel issue of whether they can use a referendum process already in the city charter to repeal a plan amendment, and I've made the arguments rejected by the 2d DCA to the same trial judge.
Let's start with what the court got right. It found a) that the city had standing to bring up the constitutionality of proposed charter amendments, and b) that the trial court had jurisdiction to consider them prior to the election. Despite years of having this put to bed, the CRG had argued that the city couldn't fight this issue, and that it had to wait until after the election anyway.
The critical issues were whether the amendment procedures provided in the statute preempted the imposition of additional local requirements. In particular, the growth managment act has a "sole process" provision, and the question was whether it really means what it says. The counter was that there is a prohibition in the chapter against using referenda for plan amendments that affect 5 or fewer parcels, or for development orders. The court interpreted this as implicitly authorizing a procedure for using referenda for amendments that involve more than 5 parcels, and that referenda therefore were somehow authorized as part of the statutory process.
This is really, really weak logic when you think about it, especially in light of the purpose and needs of the statute and planning. The court ignored a slew of absolute real world problems that were also ignored by the Florida Supreme Court in approving the Hometown Demogagy amendment.
First, local governments are REQUIRED to update their plans annually for capital improvements and other issues. Roads, sewer lines, and other public facilities cannot be built if they are are not consistent with an adopted plan. Therefore, requiring all general plan amendments to be approved by referendum not only risks major disruption, it interferes with multiple functions of governments, including both executive and legislative functions.
Second, decisions (pro or con) on plan amendments must be based on data and analysis under the statute, not just on raw political preference. That is, while plan amendments are legislative, they also are constrained by actual (as opposed to assumed) facts and data. The amendment process completely, utterly and totally destroys that critical basis for the validity of the plan and planning in general. Instead, it renders the plan nothing more than a popularity forum to to allow existing residents to convert public property (like available capacity in a public street) to their private use.
The court simply didn't consider the second issue and got the first issue dead wrong. It believed the nonsensical position of the CRG that the Administration Commission could sanction a local government for not adopting plans and that the regional planning council could adopt any missing elements. Well, folks, that just BS, a blatent misrepresentation of the law by the CRG, and hopefully will be fixed on reconsideration. Those parts of the statute only applied to the original plan adoptions under the statute, NOT to amendments to plans that already had been found in compliance.
So it all comes down to public plebescites on land use. Let's be clear: if planning is by referenda, there is no planning. There's just saying no to change, regardless of the needs of the larger community and whatever "rights" might be left to landowners.
And some will say this is really tacky (if not inflammatory) but the reason we have a constitution and limits on direct democracy is that voting or democratic processes don't generally promote democracy: remember always that Hitler was elected democratically.
Well, there are some other fights on this issues still to come. For example, article i, section 5 of the constitution requires that referenda be as "provided by law." That means STATE LAW, not a local charter. Well, there's no explicit provision for conducting referenda on plan amendments that you can find anywhere in the Florida Statutes, and to my knowledge, there's no special act authorizing St Pete Beach to have such referenda.
So, anyway, the forces of demogagy, bad planning, and the conversion of public infrastructure to the private use of existing residents won this time. Too bad -- at some point they're just asking for the whole process to be gutted or legislatively directed to sidestep all this fascistic psuedo-democracy.
Thứ Bảy, 12 tháng 8, 2006
5th Flip Flops on Rehearing - Best Diversified does NOT get an Inverse Condemnation Judgment (or File that Bert Harris Claim Right)
In an opinion on rehearing that seems to have taken over a year (here's the link), the 5th DCA reversed its decision (well, to be clear, Judge Sharp changed sides), and found that the circuit court erred in finding that a construction and debris landfill suffered a taking when a) both the County and the DEP clearly and almost admittedly changed their rules just to deny permits to that particular landfill, and b) there was massive issues in what needed to be done to close it.
The facts seem all over the place if you compare the opinions, at least insofar as they apply to whether the landfill could accept fill to be closed. Judge Sharp seems to have switched sides based on a view that the county would have allowed the owner to pay to have clean fill brought in to close the landfill -- even thought that isn't a "use" and wouldn't leave the property with other uses. The landowner appears to have wanted to have a permit to bring in clean C&D fill to cover the other fill.
OK, so the taking goes down. One thing that I find a serious issue in both opinions is that they find no taking in the denial of permits to continue operating the landfill under the "nuisance" exception of Lucas. The problem is that no-one ever tried to shut down the operation as a nuisance. They simply claimed "issues" that were "nuisance like" in the permitting process. The problem is that actual nuiscance doctrine always involves balancing -- an activity isn't always a nuisance just because it has some objectionable characteristics.
Let's be clear: the 5th found the DEP found that the activity was a public nuisance. But such a determination is an action in tort. DEP has never been given any authority to try nuisance torts. AS A MATTER OF THE SEPERATION OF POWERS, DEP DOES NOT HAVE THE AUHTORITY TO DETERMINE AND DECLARE A LANDFILL TO BE A PUBLIC NUISANCE. Those powers are set forth in section 403.704, Fla. Stat. and permit standards are set forth in sectin 403.707. While the Dep't has LOTS of ennumerated powers, the power to declare a public nuisance is not one of them. But, hey, when did a little thing like not having the power to abrogate the common law stop a zealous agency attorney (what, his/her oath as an attorney? respect for the constitution? ) ?
The court's approach here seems to indicate that if there is anything objectionable, the local government or a state agency can declare a nuisance without having to litigate the nuisance under the common law, and evade takings responsibility at the same time.
BUT THE BIG issue is that the landowner might have succeeded in a Bert Harris claim (which he won below) except that the 5th found (in a footnote) that he had not complied with the statutory requirement of filing a claim. It also found that Bert Harris liability doesn't attach to the abatement of a public nuisance. But if the landowner HAD filed the appraisal, at least there would be a reasonable fight over damages under that Act. Moreover, even if the denial of the landfill were not compensable, if there were no other uses left to the property, there may have been Bert Harris liability anyway.
The facts seem all over the place if you compare the opinions, at least insofar as they apply to whether the landfill could accept fill to be closed. Judge Sharp seems to have switched sides based on a view that the county would have allowed the owner to pay to have clean fill brought in to close the landfill -- even thought that isn't a "use" and wouldn't leave the property with other uses. The landowner appears to have wanted to have a permit to bring in clean C&D fill to cover the other fill.
OK, so the taking goes down. One thing that I find a serious issue in both opinions is that they find no taking in the denial of permits to continue operating the landfill under the "nuisance" exception of Lucas. The problem is that no-one ever tried to shut down the operation as a nuisance. They simply claimed "issues" that were "nuisance like" in the permitting process. The problem is that actual nuiscance doctrine always involves balancing -- an activity isn't always a nuisance just because it has some objectionable characteristics.
Let's be clear: the 5th found the DEP found that the activity was a public nuisance. But such a determination is an action in tort. DEP has never been given any authority to try nuisance torts. AS A MATTER OF THE SEPERATION OF POWERS, DEP DOES NOT HAVE THE AUHTORITY TO DETERMINE AND DECLARE A LANDFILL TO BE A PUBLIC NUISANCE. Those powers are set forth in section 403.704, Fla. Stat. and permit standards are set forth in sectin 403.707. While the Dep't has LOTS of ennumerated powers, the power to declare a public nuisance is not one of them. But, hey, when did a little thing like not having the power to abrogate the common law stop a zealous agency attorney (what, his/her oath as an attorney? respect for the constitution? ) ?
The court's approach here seems to indicate that if there is anything objectionable, the local government or a state agency can declare a nuisance without having to litigate the nuisance under the common law, and evade takings responsibility at the same time.
BUT THE BIG issue is that the landowner might have succeeded in a Bert Harris claim (which he won below) except that the 5th found (in a footnote) that he had not complied with the statutory requirement of filing a claim. It also found that Bert Harris liability doesn't attach to the abatement of a public nuisance. But if the landowner HAD filed the appraisal, at least there would be a reasonable fight over damages under that Act. Moreover, even if the denial of the landfill were not compensable, if there were no other uses left to the property, there may have been Bert Harris liability anyway.
Charter Schools Must Pay Special Assessments
Despite that fact that they are publicly funded, established by statute, and otherwise must have open enrollement, the 5th DCA held that charter schools while are not public schools their exemption from Chapter 1013 means that they do not enjoy the statutory exemption from the payment of special assessments and other capacity fees that public schools enjoy, becuase it is provided in that chapter.
Seems like a silly piece of legislative oversight that could have dramatic impact on the fiscal viability of charter schools.
The case is Remington v. Education Foundation, here's the link to the opinion.
Seems like a silly piece of legislative oversight that could have dramatic impact on the fiscal viability of charter schools.
The case is Remington v. Education Foundation, here's the link to the opinion.
Thứ Sáu, 11 tháng 8, 2006
4th DCA - Yes, you get a Declaratory Action When A Local Gov't Gives You Nothing Else
In South Riverwalk Investments, LLC v City of Ft. Lauderdale, here's the opinion, we find yet another shining example of a commitment to fair play on the part of a local government. This time, anyway, the developer at least will get a day in court -- though over the strident position of the City that an application simply has no remedy when a local government simply fails to act on a development application.
In this case, the applicant filed a site plan for a new project. The City had (as do some others) an "area wide density" inside a Regional Activity Center. It then appeared that there was no residential density left to allocate (we are not told what uses might be left to the property), so the site plan was neither approved nor denied, but remained "open". All other issues had been addressed except the availability of density. Under the local code a site plan remains open until approved or denied.
And (at least based on later allegation) the City starts a plan amendment process that might allocate more density to the Regional Activity Center.
But then, lo!, the City simply decides that, at this point, the site plan no longer exists! Not denied (which might have triggered standing for an administrative appeal, or if none were available, then a dec action, suit under Bert Harris, takings or some other theory), but simply non-extent.
So the developer files a declaratory action to determine, basically, whether it had the right to "stand in line" until density become available. The City's response: sorry, you have no standing. You can't claim when rights might be available, so you don't have any issue to decide. It even convinced the circuit court to dismiss the action with prejudice.
The 4th reversed, holding that there was a real and present controversy with respect to the question of whether the developer has rights in the site plan to density once (and whether) it becomes available. Even though that availability is a future event, the determination is a present need.
And while the court never reaches it (probably not in the record) we are left to ponder why the City would behave this way. Does it want the density to go to another developer? Does it want to change the rules against some aspect of this site plan? Does it simply want to get more review fees? Are there some other vested rights that the City wants to defeat?
Let's be clear: as wrong as it is, the developer almost certainly would have no due process claim under the 14th amendment that could be enforced through an action under USC s1983 (with attorney's fees at the end) because the court would find that the developer had no "property" in the permit (though the permit is the expression of the government regulation of the land). Whether due process under the Florida constitution would provide some protection, we don't know, because it hasn't really been litigated separately -- but historically Florida courts would give that protection.
But I suspect that the City was taking the view that if a developer doesn't have a property right that would be recognized under federal due process principles, it didn't have an "interest" that could be protected by a declaratory action. Thanks to the 4th DCA for finding otherwise.
In this case, the applicant filed a site plan for a new project. The City had (as do some others) an "area wide density" inside a Regional Activity Center. It then appeared that there was no residential density left to allocate (we are not told what uses might be left to the property), so the site plan was neither approved nor denied, but remained "open". All other issues had been addressed except the availability of density. Under the local code a site plan remains open until approved or denied.
And (at least based on later allegation) the City starts a plan amendment process that might allocate more density to the Regional Activity Center.
But then, lo!, the City simply decides that, at this point, the site plan no longer exists! Not denied (which might have triggered standing for an administrative appeal, or if none were available, then a dec action, suit under Bert Harris, takings or some other theory), but simply non-extent.
So the developer files a declaratory action to determine, basically, whether it had the right to "stand in line" until density become available. The City's response: sorry, you have no standing. You can't claim when rights might be available, so you don't have any issue to decide. It even convinced the circuit court to dismiss the action with prejudice.
The 4th reversed, holding that there was a real and present controversy with respect to the question of whether the developer has rights in the site plan to density once (and whether) it becomes available. Even though that availability is a future event, the determination is a present need.
And while the court never reaches it (probably not in the record) we are left to ponder why the City would behave this way. Does it want the density to go to another developer? Does it want to change the rules against some aspect of this site plan? Does it simply want to get more review fees? Are there some other vested rights that the City wants to defeat?
Let's be clear: as wrong as it is, the developer almost certainly would have no due process claim under the 14th amendment that could be enforced through an action under USC s1983 (with attorney's fees at the end) because the court would find that the developer had no "property" in the permit (though the permit is the expression of the government regulation of the land). Whether due process under the Florida constitution would provide some protection, we don't know, because it hasn't really been litigated separately -- but historically Florida courts would give that protection.
But I suspect that the City was taking the view that if a developer doesn't have a property right that would be recognized under federal due process principles, it didn't have an "interest" that could be protected by a declaratory action. Thanks to the 4th DCA for finding otherwise.
Another 3d DCA Opinion for Strong Judicial Review
Don't know how I missed this one, except that it appeared at first blush to be just another 3d DCA swipe at variances. But the Court seems to be putting a stake in the ground with respect to the proper role of certiorari review - one that is bolsted by the Osborn case.
In Auerbach v. City of Miami, 929 So.2d 623 (Fla. 3d DCA 2006), here's the link to the 3d DCA opinion, the court overturned a circuit court's refusal to quash a variance (though it upheld the court's decision to uphold a major special use permits). In language that clearly holds that the courts SHOULD actively police the decisions of zoning tribunals, the court wrote:
In Auerbach v. City of Miami, 929 So.2d 623 (Fla. 3d DCA 2006), here's the link to the 3d DCA opinion, the court overturned a circuit court's refusal to quash a variance (though it upheld the court's decision to uphold a major special use permits). In language that clearly holds that the courts SHOULD actively police the decisions of zoning tribunals, the court wrote:
As in numerous prior cases, therefore, including many, like this one, on
“second-tier” review of a circuit court decision, quashal of the variance is
required. On the other hand, by invalidating the variance, we reaffirm
this Court’s solemn promise, which it has steadfastly honored, that
"[t]he law . . . will not and cannot approve a zoning regulation or any governmental
action adversely affecting the rights of others which is based on no more than
the fact that those who support it have the power to work their will." Allapattah Cmty. Ass’n, Inc. of Fla. v. City of Miami, 379 So. 2d 387, 394 (Fla. 3d DCA 1980), cert. denied, 386 So. 2d 635 (Fla. 1980).
(internal citations omitted, quotation reformatted to work for the web).
While Allapattah involved the approval of a development over the objections of surrounding neighborhoods, the language applies equally to the denial of a development order at the behest of a complaining public.
The Court went on in a footnote to address the issue of whether the failure to follow the law constituted a “miscarriage of justice” and suggested that ANYTIME the lower tribunal fails to follow the law, a miscarriage has occurred:
The respondents seem to suggest that the simple, clear and direct violation ofMaybe what we're seeing is a reassertion of the proper role of the judiciary after years of allowing local governments to do what they want without effective judicial review, whichever way that decision happens to go.
the law, which we find here without “weighing” or “evaluating” the non-existent
evidence of a hardship, may be justified by claims (a) that the variance may
render the project more aesthetically pleasing; or (b) more economically
rewarding; or (c) that fixing the results of improperly granting the variance
may be expensive or inconvenient; (d) that the City of Miami authorities thought
that the variance was generally a good idea; or (e) that the violation was, in the broad scheme of things, too minor to warrant our attention. Notwithstanding any or all of this, it is the unshirkable obligation of the courts, on whatever “tier” of consideration, “to say what the law is” and to effect that judgment. Failing to do so in this case would create both a direct conflict with these decisions, and an unjustified approval of the obvious failure of the circuit court to apply the correct law and of the resulting “miscarriage of justice” which occurred below.
Thứ Tư, 19 tháng 7, 2006
3d DCA - Petitioners in Cert cases are ENTITLED to meaningful legal review and redress
In Osborn v. Board of County Comm'rs (Monroe), here's the opinion, the 3d wrote one of those short and sweet opinions that you really need to keep around.
The 3d granted cert and quashed a circuit court's opinion in a cert case because the lower court's opinion demonstrated a lack of clarity regarding its role and the standards that it should or could apply. In so doing, the 3d expressed an expansive view of the rights of a petitioner to have meaningful review AND an expansive view of the nature of the remedial instructions that the circuit court can provide.
Here's the guts of the opinion, emphasis is mine:
FIRST - the Petitioner is ENTITLED to consideration of whether the agency followed its laws and regulations and whether the decision is supported by CSE. They forgot the constitution, but we can take it that constitutional issues go along for the ride here. Then, the court may correct ANY ERRORS made below, jurisdictional, procedural or subantive. Not just errors that rise to a miscarriage of justice. Finally, the court may modify, reverse, or remand with instructions - not just remand.
Note that the last line seems to fly in the face of the "just quash" approach that the the Fla. Supremes adopted in GBV. But in that case, the court tried to order that the lower court grant the development order. The third is saying something more limited: the trial court can tell the agency (or board acting quasi-judicially) what needs to be done to correct the error. And note that if the court does this, the lower tribunal violates the law of the case if it does something else on remand.
This is critical because local governments play vile and nasty games on remand. Just look at the Quadrangle case in Orange County.
The 3d granted cert and quashed a circuit court's opinion in a cert case because the lower court's opinion demonstrated a lack of clarity regarding its role and the standards that it should or could apply. In so doing, the 3d expressed an expansive view of the rights of a petitioner to have meaningful review AND an expansive view of the nature of the remedial instructions that the circuit court can provide.
Here's the guts of the opinion, emphasis is mine:
Ok - this decision is CRITICAL for land use practioners who constantly get hosed by local goverment attorneys who emphasis the "limited scope of review" in cert and claim that the 2d tier standard limiting it to addressing a "miscarriage of justice" applies to 1st tier claims.On first-tier certiorari review from an administrative decision, "the circuit court must determine whether procedural due process is accorded, whether the essential requirements of the law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence." City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). The Petitioner is, in effect, entitled to consideration of whether the administrative agency followed its laws and regulations, and whether the agency’s findings are supported by competent substantial evidence. Baker v. Metro. Dade County, 774 So. 2d 14 (Fla. 3d DCA 2001). Thus, at first tier level, the circuit court may correct any errors made below: jurisdictional, procedural or substantive; and judgments may be modified, reversed, remanded with directions, or affirmed. See G-W Dev. Corp. v. Village of N. Palm Beach Zoning Bd. & Adjustment, 317 So. 2d 828, 830-831 (Fla. 4th DCA 1975).
FIRST - the Petitioner is ENTITLED to consideration of whether the agency followed its laws and regulations and whether the decision is supported by CSE. They forgot the constitution, but we can take it that constitutional issues go along for the ride here. Then, the court may correct ANY ERRORS made below, jurisdictional, procedural or subantive. Not just errors that rise to a miscarriage of justice. Finally, the court may modify, reverse, or remand with instructions - not just remand.
Note that the last line seems to fly in the face of the "just quash" approach that the the Fla. Supremes adopted in GBV. But in that case, the court tried to order that the lower court grant the development order. The third is saying something more limited: the trial court can tell the agency (or board acting quasi-judicially) what needs to be done to correct the error. And note that if the court does this, the lower tribunal violates the law of the case if it does something else on remand.
This is critical because local governments play vile and nasty games on remand. Just look at the Quadrangle case in Orange County.
Bert Harris Case - Determination of Inordinate Burden Requires Findings
In Brevard County v. Stack, here's the opinion, the 5th upheld the Bert Harris Act against some really silly constitutional claims, but remanded a trial court's inordinate burden decision for a written finding.
The case involved new wetlands regulations that did not allow mitigation. A commercial property had an area of wetlands in the middle, and the no mitigation and buffer rules prevented an otherwise viable development plan from going forward. This resulted in the loss of a viable contract for the property.
The appraisal filed with the required notice indicated a loss in value of the property of $1M, from 1.7M to $700,000 due to the inability to construct the development plan.
Here's where it gets interesting. The County came back with a ripeness decision that included a site plan prepared by the County that would have allowed the owners to develop, but with a bunch of limits, including a reduction in parking from 170 to 100 spaces.
Now it appears that the County did not contest this opinion, because the matter was tried to partial summary judgment on the issue of inordinate burden, and the trial court found for the Plaintiffs.
On appeal, the County attacked the constitutionality of the Act on numerous grounds, mostly specious and sometimes frightening.
First, they claimed that it violated the County's substantive due process rights by forcing them to contract away their police powers, first in requiring (functionally) a "ripeness" action or an offer of settlement under threat of suit, and then by "requiring" the entity to "buy back" rights.
First, a "contracting away" claim is NOT based on due process; it's based on organic limits to the power of the government and the notion of the separation of powers. Moreover, while it might be possible to have a Bert Harris settlement that is void for this reason (believe me, I know, I just drafted a settlement around this issue) due to the doctrines laid out in Sarasota County v Chung and Morgan Co. v. Orange County, the fact that a government entity can settle (under threat of litigation) does not create a contracting problem.
The 5th clearly stated that local governments don't have "due process" rights against the Legislature, but more on the arrogant and frightening nature of the claim later.
Furthermore, as the 5th recognized, the fact that the Legislature created a new cause of action that both recognized the right of the government to exercise the police power but then creates a legislative notion of an action that "goes too far" and requires compensation for that regulation, does not "force" the government to "contract" with private parties in exercising their police powers.
Likewise, the fact that if a landowner is granted compensation for lost rights, the Act recognizes that these rights are permanently transferred to the government entity (as in a property interest/covenant/easement/sale of development rights) doesn't create a contracting problem - it simply again recognizes that the Legislature has created a cause of action and that someone using that cause forfeits other rights. So the 5th also properly rejected the notion that the Act creates a "contracting away" problem through its provision for the transfer of the rights to the government if damages were paid.
NOTE - the big right involved here would be the right to use the property for the "burdened" use should the regulatory regime change. While Bert Harris claims aren't available for "temporary" burdens, this means a regulation or effect that's temporally limited on its face. The imposition of a zoning category, or a wetlands rule, can be presumed permanent because the entity isn't obliged to change it.
The County also tried to argue that the Act improperly delegates legislative authority to the courts, based first on "vagueness" and then on the really bizarre notion that it somehow illegally and improperly enlarged judicial interpretations of takings law.
The 5th rejected the vagueness claim based on the Act's provision of a number of definitions. And while I think this claim reaches pretty far, I do have to admit that the Act is less than clear, and requires a lot of interpretation to determine whether an impacted "right" to use property is an "existing use" as that's defined in the Act.
It also rejected the "legislative imposition on the judiciary" for the clear and obvious reason that the Act explicitly states that it is creating a new cause of action, and that the cause of action is supposed to be more liberal than constitutional takings doctrine.
Note what the County is really trying to do with these combined constitutional claims: establish a doctrine that the Legislature can't create a statutorily imposed financial constraint on a local government's use of police powers that otherwise pass due process and takings tests based on some new kind of claim of constitutional stature for their "right" to exercise police powers. Their underlying but unstated position seems to be that if local governments have home rule police powers, the legislature can take away local power to legislate in areas, or can tell the local government procedurally what must be done in order to exercise those police powers, but can't make them liable for the substantive results of the use of those powers. It's nothing less than an attempt to establish an entirely new, judicially created doctrine that local governments have "constitutional" rights against legislative limits on their powers.
The fact that the county would argue this kind of claim reflects the frightening arrogance that local governments have internalized -- they believe that they have the constitutional right to screw around with anyone they want, limited only by the (emasculated and now meaningless) constitutional constraints of due process and inverse condemnation, and that the Legislature is (or should be) powerless to constrain their authority.
Let's be clear: even with home rule provided by the constitution, local governments are NOT co-equal branches of government. They are political subdivisions (counties) and municipal corporations, whose authority and right to exist are subject to legislative control.
After all of that, the 5th did throw the judgment back to the trial court for findings, based on language in the Act that provides that the court "shall" "determine whether a vested right or an existing use of the real property existed, and if so, whether . . . ." the property was inordinately burdened. The 5th interprets this as requiring an explicit finding, presumably in writing.
PRACTICE NOTE: if you're a Plaintiff in one of these cases, be sure to note this in your memorandum of law, and be sure to provide a draft order that guides the court in getting this right.
The case involved new wetlands regulations that did not allow mitigation. A commercial property had an area of wetlands in the middle, and the no mitigation and buffer rules prevented an otherwise viable development plan from going forward. This resulted in the loss of a viable contract for the property.
The appraisal filed with the required notice indicated a loss in value of the property of $1M, from 1.7M to $700,000 due to the inability to construct the development plan.
Here's where it gets interesting. The County came back with a ripeness decision that included a site plan prepared by the County that would have allowed the owners to develop, but with a bunch of limits, including a reduction in parking from 170 to 100 spaces.
The appraiser found that the County's plan did not cure the problems created by
the Ordinance, and that the diminution of value remained the same, because
the plan required that the Property be bisected, it did not provide for
sufficient parking, and it made no provision for a traffic signal. All of
these factors made the Property less attractive to a developer.
Now it appears that the County did not contest this opinion, because the matter was tried to partial summary judgment on the issue of inordinate burden, and the trial court found for the Plaintiffs.
On appeal, the County attacked the constitutionality of the Act on numerous grounds, mostly specious and sometimes frightening.
First, they claimed that it violated the County's substantive due process rights by forcing them to contract away their police powers, first in requiring (functionally) a "ripeness" action or an offer of settlement under threat of suit, and then by "requiring" the entity to "buy back" rights.
First, a "contracting away" claim is NOT based on due process; it's based on organic limits to the power of the government and the notion of the separation of powers. Moreover, while it might be possible to have a Bert Harris settlement that is void for this reason (believe me, I know, I just drafted a settlement around this issue) due to the doctrines laid out in Sarasota County v Chung and Morgan Co. v. Orange County, the fact that a government entity can settle (under threat of litigation) does not create a contracting problem.
The 5th clearly stated that local governments don't have "due process" rights against the Legislature, but more on the arrogant and frightening nature of the claim later.
Furthermore, as the 5th recognized, the fact that the Legislature created a new cause of action that both recognized the right of the government to exercise the police power but then creates a legislative notion of an action that "goes too far" and requires compensation for that regulation, does not "force" the government to "contract" with private parties in exercising their police powers.
Likewise, the fact that if a landowner is granted compensation for lost rights, the Act recognizes that these rights are permanently transferred to the government entity (as in a property interest/covenant/easement/sale of development rights) doesn't create a contracting problem - it simply again recognizes that the Legislature has created a cause of action and that someone using that cause forfeits other rights. So the 5th also properly rejected the notion that the Act creates a "contracting away" problem through its provision for the transfer of the rights to the government if damages were paid.
NOTE - the big right involved here would be the right to use the property for the "burdened" use should the regulatory regime change. While Bert Harris claims aren't available for "temporary" burdens, this means a regulation or effect that's temporally limited on its face. The imposition of a zoning category, or a wetlands rule, can be presumed permanent because the entity isn't obliged to change it.
The County also tried to argue that the Act improperly delegates legislative authority to the courts, based first on "vagueness" and then on the really bizarre notion that it somehow illegally and improperly enlarged judicial interpretations of takings law.
The 5th rejected the vagueness claim based on the Act's provision of a number of definitions. And while I think this claim reaches pretty far, I do have to admit that the Act is less than clear, and requires a lot of interpretation to determine whether an impacted "right" to use property is an "existing use" as that's defined in the Act.
It also rejected the "legislative imposition on the judiciary" for the clear and obvious reason that the Act explicitly states that it is creating a new cause of action, and that the cause of action is supposed to be more liberal than constitutional takings doctrine.
Note what the County is really trying to do with these combined constitutional claims: establish a doctrine that the Legislature can't create a statutorily imposed financial constraint on a local government's use of police powers that otherwise pass due process and takings tests based on some new kind of claim of constitutional stature for their "right" to exercise police powers. Their underlying but unstated position seems to be that if local governments have home rule police powers, the legislature can take away local power to legislate in areas, or can tell the local government procedurally what must be done in order to exercise those police powers, but can't make them liable for the substantive results of the use of those powers. It's nothing less than an attempt to establish an entirely new, judicially created doctrine that local governments have "constitutional" rights against legislative limits on their powers.
The fact that the county would argue this kind of claim reflects the frightening arrogance that local governments have internalized -- they believe that they have the constitutional right to screw around with anyone they want, limited only by the (emasculated and now meaningless) constitutional constraints of due process and inverse condemnation, and that the Legislature is (or should be) powerless to constrain their authority.
Let's be clear: even with home rule provided by the constitution, local governments are NOT co-equal branches of government. They are political subdivisions (counties) and municipal corporations, whose authority and right to exist are subject to legislative control.
After all of that, the 5th did throw the judgment back to the trial court for findings, based on language in the Act that provides that the court "shall" "determine whether a vested right or an existing use of the real property existed, and if so, whether . . . ." the property was inordinately burdened. The 5th interprets this as requiring an explicit finding, presumably in writing.
PRACTICE NOTE: if you're a Plaintiff in one of these cases, be sure to note this in your memorandum of law, and be sure to provide a draft order that guides the court in getting this right.
Chủ Nhật, 9 tháng 7, 2006
1st DCA to DEP - Rebuilding is Not Reconstruction
In Atlantis at Perdido Ass'n et al v. Warner & DEP et al, here's the link, the 1st DCA in an another show of judicial rejection of "reaching" agency interpretations of a statute, rejected the DEP granting of a CCCL permit for a 9 story condo that was to replace an existing duplex and quadruplex on two adjoining lots.
Key issue was how seaward the new building was compared to the "line of construction" and the agency's application of a provision for the rebuilding of structures in their existing footprints or landward of them. Essential DEP granted the permit for the new structures based on the "rebuild" language and the court rejected it because the new structure is completely different than the existing structures on the properties.
What we don't know is whether the property is buildable at all if the new construction must conform to the newer line of construction for the adjoining property. If zoning allows a nine story, fifteen unit condo, but the state statute and rules effectively prohibit anything other than the rebuilding of the duplex and quadruplex - one would start wondering whether any of the rules or statutes have been amended since 1995 such that Bert Harris liability might attach.
OTOH - the entire property was overwashed during Ivan. We don't know from the opinion what happened to the neighboring properties, and whether the state construction standards were sufficient to protect the structures from heavy damage.
Key issue was how seaward the new building was compared to the "line of construction" and the agency's application of a provision for the rebuilding of structures in their existing footprints or landward of them. Essential DEP granted the permit for the new structures based on the "rebuild" language and the court rejected it because the new structure is completely different than the existing structures on the properties.
What we don't know is whether the property is buildable at all if the new construction must conform to the newer line of construction for the adjoining property. If zoning allows a nine story, fifteen unit condo, but the state statute and rules effectively prohibit anything other than the rebuilding of the duplex and quadruplex - one would start wondering whether any of the rules or statutes have been amended since 1995 such that Bert Harris liability might attach.
OTOH - the entire property was overwashed during Ivan. We don't know from the opinion what happened to the neighboring properties, and whether the state construction standards were sufficient to protect the structures from heavy damage.
Đăng ký:
Bài đăng (Atom)
Bài đăng phổ biến
-
That old W.C. Fields line is ringing in my head, as the wind kicks up and rip tides batter the coast. I have to be honest, with the emerging... -
Now that's a headline I thought I'd never write. Actually, it's a very unfortunate case involving a tourist who died riding a Ba... -
Many of us have hired these guys as experts over the years, and I see the firm is merging and changing its name : South Florida's eight... -
Here's an interesting opinion from Magistrate Judge Torres awarding defendants attorney's fees for opposing a copyright infringemen... -
Hi kids, the heat is on and the bunker denizens are leading the way with their official 3d DCA summer pickle ball league -- judicial gentle... -
Tampa Attorney Casey Ebsary is available to help with Criminal Defense for University of South Florida Students and Faculty. At USF there ...
-
Having been disappointed by several recent 11th Circuit opinions, I am pleased to see here a straightforward application of the "econo...
-
Greenberg Traurig says it's not really necessary; Judge Middlebrooks says it is probably a good idea: In response, Plaintiff argues, in... -
Shuster & Saben Defeats US Bank & Douglas Zahm PA in Foreclosure Appeal In 2011, firm attorney Richard Shuster obtained the dis... -
Federal Rule Violation If you have been charged with USCA0024 FEDERAL RULE VIOLATION you can call a Defense Attorney Tampa at 1-877-793-9290...
