Due Process/Bias Issues When Bd or Staff Attorney Does Findings

It's a common practice in local qj hearings for the board attorney (we'll get to board/staff role problems in a minute) to prepare a set of "canned" findings for the Board to adopt. Almost no local procedures have a process (like in the FAPA) where the parties file proposed findings/conclusions.



Well, here are a couple of cases that support the idea that the FAPA proposed order process (both sides get to do them, get to comment) may be a due process requirement and that common practice here is improper. In this case the Florida Supreme Court held that it was improper (uncon/bias/no basis for review) for a judge to adopt findings proposed by one party when the other party had neither the opportunity to review and comment on the proposed findings nor an equal opportunity to present its own. This case has a lot of meat for the proposition that a judge has an obligation to render a complete, independent decision and not simply accept proposed findings/conclusions wholesale. Justice Pariente's concurrence points out that one of the key policy comments in Canakaris demanded that the deference to and discretion of judges needed to be balanced by review that would ensure that decisions were consistent.



And in this case out of the 2d, the Court held that to adopt one side's proposed order without change and without making independent findings on the record created a severe reviewability problem and the conclusion that the judge had delegated his decision making authority to one of the parties.



What are the implications - well, first, these decisions point out the due process basis in many of the FAPA statutory procedures that are all too lacking in the quasi-judicial proceedings before most local boards.



Second, the policy in these cases clearly indicates that it's improper to have a an adjudicatory process that provides for recommended findings from staff without having a chance for the applicant or opponents to put in recommended findings, etc. It is also clear that it is improper for a decision maker to simply vote to accept on (or another) recommended findings: the board must establish an independent basis for its determinations on the record. So there needs to be a process by which the proposed orders are considered fully and fairly before the decision maker issues an opinion.



[Comment - it's also clearly improper in a case where the attorney for the Board is supposedly independent from the staff to have prepared findings ahead of time in an adjudicatory proceeding. How could findings based on the record at the hearing be prepared by the finder of fact or its representative until the close of the evidence? This is one of the areas where there needs to be a clear distinction in process before city/county/special dist commissions between quasi-judicial decisions where this would be completely improper and quasi-legislative decisions where prepared findings would be OK]



Finally, as I've stated elsewhere, where the local procedures are inadequate to protect a party's rights, the party must make its objections known on the record.



PRACTICE POINTS:

1) for all the gov't attorneys out there: start regularizing your quasi-judicial processes and provide for a) either no proposed findings from anyone, or a fair route for all parties to provide them; b) processes by which the Board makes independent findings on the record that would support/explain it adoption of any findings/orders that are proposed.

--- for all the folks out there screaming "my board can't do this" (see all the complaints about Snyder, etc.; the answer is simple: if you can't provide for quasi-judicial hearings and decisions from your boards that comply with due process and review requirements, adopt a hearing officer model. Due process doesn't go away just because there are five or seven judges, so either start having full three day hearings that are serious due process hearings or delegate the authority.



2) for landowner/applicants and 3d parties:

a) prepare a recommended order and give it to the other side(s) at the end of the hearing. The more detailed, the harder time they will have doing something summary and justifying it on review.

b) demand that any and all proposed findings be given equal consideration by the finder of fact.

c) object on the record if the staff has proposed findings but you're not given the same opportunity, or if the Board doesn't discuss them equally, etc. At the very least demand the right to review the findings and present oral or written objections to the Board BEFORE it makes any decisions.

d) object on the record if the Board's attorney has prepared findings before the close of evidence - such findings either are unsupportable or are clear evidence of bias and collusion between the "independent" board attorney giving advice and the "prosecution" role. See Cherry and similar cases.



Local government attorneys I've talked to often operate under the belief that because Matthews v Eldridge states that the formality of due process that must be afforded is dependent on the circumstances, they can avoid the fairness and reviewability standards demanded of due process hearings. Cases like these (and others I've been citing) demonstrate that this is NOT the case: both the "opportunity to be heard" and "fundamental fairness/lack of bias" are CORE due process principle and must be respected.

Admin Res Judicata -- well, not - but an interesting issue

The same day that it released the Collins decision, the Fourth released this opinion declining to apply res judicata principles (because of mootness/lack of effect) in a 2d tier cert case involving a special exception. The case doesn't tell us much about res judicata, but points out a signficant issue regarding the expiration of certain approvals pending an appeal.



Unfortunately, the court gives no details, but it appears that one special exception was granted, appealed, and then expired during the pendency of the appeal. Another was applied for and denied, though we don't know if this occured while the cert petition was pending or while the applicant/church was trying to appeal the legal decision in the first case.



Interesting - the first cert (obviously 3d party) was claiming admin res judicata against the granting; the circuit judge denied as moot (because of the expiration) and also made a comment that the Board had erred in granting the exception because of the admin res judicata issue. The church took the issue to the Fourth on that issue. The Fourth declined on the basis that of mootness but also because the Board had denied the later application. It therefore declined to rule on the res judicata issue. What we don't know is whether the later denial is up on appeal in the circuit court. If it is, the res judicata issue may be coming back.



See the problem? If the first special exception expired only because the church didn't want to go forward while a cert petition was pending (remember Shidell, you don't want the approval to expire just because of the petition. That creates a situation where attacks on an approval can succeed simply by drawing out the proceeding until the approval expires.



And if it does expire, you re-apply, and then get denied (maybe by a new board, maybe by more developed politics and maybe because the application really didn't meet the standards), you'd want to argue in a cert proceeding against the denial that res judicata applied to the grant, and that the "reapplication" should have been granted absent changed circumstances or standards. This is untried grounds, really - the cases are somewhat all over the place and most of the ones I recall involve attacks rather than defensive use of res judicata (neighbors complaining that a second application shouldn't be approved rather than applicants claiming they should be).



Practice point and future litigation issue: if you're representing an applicant for a special exception (or variance or conditional use permit), get it, and the decision is challenged in cert by a 3d party, you probably want to ask the local government for a stay pending the appeal - yes, as the applicant - so that your time doesn't run out (if you're in a jurisdiction with a short fuse on SEs). [Of course you could take your chances and proceed on the approval, but if it involves construction activity and investment rather than mere use, I wouldn't recommend it to a client).



I'm guessing that many jurisdicitions wouldn't know how to handle this today, and would say they aren't authorized to grant a stay. But look at Fl. R. App. P. 9.190 - the provision for stays of decisions NOT taken under the APA provides that tribunals have the authority to grant them under appropriate terms. But you might end up having to ask the court to use its plenary powers to stay the decision if the local government won't.

DOAH - EFiling Registration for Fla Attorneys

Starting today, if you're a Florida attorney, you cans sign up for DOAH - EFiling Registration and file most pleadings and paperwork for an administrative hearing from your desk. Very cool - the electronic forms apparently on the site apparently generate properly captioned documents which get sent to you for service on the other party after you file.



Very cool for the technologically inclined.

Standing to Appeal Comp Plan Amendments Limited by 4th

On Wednesday, the 4th DCA released this opinion that holds that "third party" standing to maintain an administrative challenge to a comprehensive plan amendment under s. 163.3184 doesn't automatically provide standing to appeal under 120.68 if the party loses. It dismissed an appeal by the Martin County Conservation Alliance and some of its members to a plan amendment that had been approved by the Dept of Community Affairs after a 120.57 hearing and final order. It's another one of those superficially reasonable decisions that seems well supported by law and context, but that fails to hold up under any scrutiny.



(BTW - thanks to John Ferguson, Larry Sellers and a few others who sent me the link to the case. As with all my posts, the views here are mine and while I'm happy to challenge folks who might think differently, I don't intend to offend).



Essentially, any "affected" person can challenge a comp plan amendment AS A FULL PARTY, but the court held that under 120.68 one must be (and show in the record that they are) "adversely affected" by the administrative ruling to appeal.



Before getting into the meat of this ruling (which I'll do only relatively briefly because a full discussion would require a law review article), let's start by saying dismissing this appeal without giving the parties an opportunity to cure the pleading or factual basis below is flat out unfair. Folks have been challenging plan amendments based on pleading general facts regarding impact of the amendment ever since the statute was passed without this challenge being raised, and typical practice has been not only to make general allegations, but for the local government and landowner to stipulate to standing generally. So as a matter of principle, the petitioners here had no fair notice that they had to plead or prove differently.



[BTW, it's my understanding that the court picked this argument on its own motion and that DCA actually argued that MCCA had standing; I don't know what the County or landowner argued]



On the meat, well, let's start by saying that it's always a bad sign in a standing case when the court begins by citing a federal case (Morton in this instance). Federal case law - on their APA or general standing - simply has nothing to do with standing under Chapter 120 - the FAPA.



The essential issue here is whether the LEAF v Clark case - which held that LEAF, while being granted intervenor/party status by the Public Service Commission in a rulemaking proceeding that involved how conservation goals were to be set for electric utilities was not "adversely affected" by PORTIONS of a rule it didn't like - really stands for the proposition that a party who loses in an adjudicatory hearing is not automatically adversely affected by that decision.



The cites in the case make this seem like the cases hold that standing to appeal is generally separate from standing to appear, but that's really not the case.



Leaving Daniels (which was a case that FOUND standing) for a moment, LEAF involved proceedings before the PSC based on a grant of standing by the PSC (not by invoking and demonstrating that it was affected). PSC held extended negotiations with the parties, then convened a hearing and entered a final order adopting rules that governed how utilities would be required (or not) to implement conservation programs. The Court held that LEAF did not have standing to contest ONE PART of the final order that involved how the standards would be enforced. It did (implicitly) give LEAF standing on due process claims, as well as on its claim that another part of the rule was not supported by the evidence. It is VERY important to note that in the case of this rulemaking, the proceeding was, more or less, held before the PSC itself; that is, it was NOT a case where a hearing officer adjudicated a proceeding under 120.57 and the agency entered a final order.



So the LEAF case really stands for the proposition that a participating party in a RULEMAKING proceeding has (automatic) standing to contest issues that go to the fairness or evidence of the decision, but maybe not to the choice of enforcement mechanisms if the party will not be subject to them. It says NOTHING AT ALL about whether or not a party to an ADJUDICATORY PROCEEDING who loses part or all of the rulings there is or is not "adversely affected" by the final order. And LEAF clearly implies that insofar as there are adjudicatory issues (due process, etc.), a party to the proceeding is adversely affected by decisions or actions taken below that are adverse to them. That is, LEAF does not stand for the proposition for which the 4th cited it: that a losing party needs to show that they will be harmed by the decision as a whole in order to appeal all or part of it.



Let's also look at the specific case of comp plan amendment challenges: here the statute provides that administrative adjudication is the ONLY way to test the compliance of a plan or plan amendment with the statute. Because the state is supplanting judicial review of the amendment decision with an administrative adjudication, it must afford full due process and full judicial review of that process. (Scholastic Systems v Laloup).



The statute also defines (beyond the Chapter 120 definition) not only who is an affected party, but the some of interests that are STATUTORILY determined to be affected by planning decisions. The intent of this definition was to ensure that plans and plan amendments could be challenged broadly by the people who had to live with the long term results. [there is legislative history directly on this point that I saw as staff to the Jt. Select Committee on Growth Mgmt Implementation - thanks to Mike Morell for reminding me] The GMA challenge provisions also were adopted with the longstanding belief by most administrative law lawyers that a party who loses an ADJUDICATORY DETERMINATION in a 120 process is adversely affected by that determination for the review purposes of 120.68.



What's more, the whole reason for determining the validity of plan amendments against the statute and rule is that the actual impacts are speculative - but are recognized by the statute as coming. That is, when you change a land use designation, the statute assumes that - within a reasonable period of time - infrastructure, environment and neighboring land uses will be affected. The potential for adverse impact is presumed by the statute - the point is that the local government and/or landowner are supposed to be showing that the impacts will be properly dealt with.



So -

1) Broad interpretations of Daniels and LEAF to hold that a party to an adjudicatory proceeding under 120 who loses an adjudicatory determination isn't "adversely affected" is just wrong. How do you litigate the way that you might be harmed by a decision that hasn't been made yet? The rulings themselves, if adverse to a party, adversely affect the party, plain and simple.



2) The only potential area where this might NOT be true (dicta in Daniels, referring to Balino, and the case in LEAF) is where the proceeding is rulemaking and the rule involves provisions that affect only parties regulated by the rule (which was a fact-specific determination made by the LEAF court in finding that LEAF didn't have standing in that part of the case).



3) Attempts by the Courts or other litigators to import some kind of Rickman type standing into these cases flies in the face of the intent of the statute. I sincerely doubt that judges at the 1st DCA would have made a ruling like this for fear that Pat Dore would rise from her grave and haunt their chambers for the rest of their lives. Clearly, the 4th DCA judges never read any of her foundation articles on the role and purposes of Chapter 120 and standing in 120 proceedings.



Personal note: I was in Professor Dore's Admin Law class at the time of her death and we had been covering standing issues - she not only argued for open access to the administrative process (see her seminal 1986 article) but also to the appellate process.



PRACTICE POINTERS:

1) If you're a 3d party, plead specific ways that you will be affected by the change in the comp plan. I don't think this needs to be Rickman injury (different than the public as a whole). I'd be thinking of the same kinds of issues that I'd raise in a 3215 challenge and plead them.



2) Don't stipulate to standing generally, stipulate to the facts. In fact, I'd push to get stipulations regarding how my clients would be affected (adversely) if the amendment passed, even if some of them are speculative.



Happy litigating!

A good example

This 4th DCA opinion provides a good example of how courts should interpret zoning laws. The case involves the interpretation of covenants restricting activities in a subdivision. Such restrictions, note the courts, are to be construed strictly and in favor of the landowner because covenants that restrict use are not favored.



The same policy underlies the longstanding rule that zoning and similar land use regulations are in derogation of common law and should be strictly construed in favor of the landowner; also that the government can't "read in" restrictions that aren't there. Here's a partial string cite listing some of the relevant cases:



Rinker v. City of North Miami, 286 So. 2d 552 (Fla. 1973) (city could not limit operation of cement mixing plant based on language intended to limit the construction of concrete pipes and other materials) conformed to 288 So.2d 997 (Fla. 3rd DCA); Bellaire v. City of Treasure Island, 611 So.2d 1285 (Fla. 2d DCA 1992) (city could not redefine “condominium” to mean “multi-family” to limit rental where condominiums were defined as single family units); Powell v City of Delray Beach, 711 So.2d 1307 (Fla. 4th DCA 1998) (city could not insert requirement into land development regulations to require homeowner to pave entire alley), Thomas v. Crescent City, 503 So. 2d 1299 (Fla. 5th DCA 1987)(city could not prohibit the establishment of trailer rental pads in district that permitted “any commercial use of a retail or service nature”); Hoffman v. Brevard County Board of Commissioners, 390 So. 2d 445 (Fla. 5th DCA 1980); Halifax Area Council on Alcoholism v. Daytona Beach, 385 So. 2d 184 (Fla. 5th DCA 1980); Miami Beach v. 100 Lincoln Road, Inc. 214 So. 2d 39 (Fla. 3rd DCA 1968).



There's also a good, recent case from the 3d DCA - the Castro case that held that there's a difference between "parking" and "storing", and that a provision that prohibitted boat storage couldn't support a citation against a homeowner who simply "parked" his boat in his driveway.



Moreover, the usual policy that grants deference to the "agency's" interpretation historically does NOT apply to land use regulations. Instead, words used in a zoning ordinance to permit certain uses should be given their broadest meaning when there is no definition or clear intent to the contrary and the ordinance should be interpreted in favor of the property owner. Rose v. Town of Hillsboro Beach, 216 So.2d 258 (Fla.App.4th 1968); Brooks v. Anastasia Mosquito Control Dist., 148 So.2d 64 (Fla.App.1st 1963); Maryland Casualty Co. v. Sutherland, 125 Fla. 282, 169 So. 679 (1936); Marion County Hospital District v. Namer, 225 So.2d 442 (Fla.App.1st 1969), citing Maryland Casualty, supra; Godson v. Town of Surfside, 150 Fla. 614, 8 So.2d 497 (Fla.1942); Gay v. City of Coral Gables, 47 So.2d 529 (Fla.1950); Union Trust Co. v. Lucas, 125 So.2d 582 (Fla.App.2d 1960); and State ex rel. Lacedonia v. Harvey, 68 So.2d 817 (Fla.1953).



Unfortunately, these core princples are too often ignored, not only by the courts, but also by the local government lawyers who screen the codes and represent the local government in enforcement actions.

2d DCA requires findings from trial judge(s)

In my ongoing quest to establish that there is simply no basis in law for the Snyder/GBV rule that local commissions do not have to provide written findings to support their decisions in quasi-judicial rezoning determinations, I offer this 2d DCA case remanding an issue to the trial court for explicit findings and noting that it would demand them in the future. In this instance, the case involves sanctions for discovery violations in a med-mal case, but the logic is the same as in the 5th's divorce case that I cited last week:



Because our role is to review orders imposing or declining to impose a sanction for abuse of discretion, it is impossible for this court to carry out any meaningful review without findings by the trial court. In Torrey, the trial court had sufficiently explained the basis for his ruling. In this case, there is no explanation of the trial court’s analysis of the relevant facts or any explanation why the analysis in Torrey is not applicable. We simply cannot tell whether the trial court abused its discretion in apparently concluding that respondents’ conduct was not willful or that Torrey did not apply. Accordingly, we grant the petition to the extent that the order at issue lacks findings. And, in future, we will require the trial court to explain the legal or factual basis for its ruling on sanctions in medical malpractice cases, at least where, as here, the basis for the decision is not apparent.

Update - circuit ct opinion in Orange County case

In response to my post last week, a reader forwarded me the circuit court opinion. Here's a link to that opinion in MS Word format.



From the looks of it, everyone got so focused on the "law of the case" issue that no-one looked at the issue of whether the findings at issue would justify denying the development order. If there is such a standard (like "its in the public interest"), I would seriously be considering a collateral attack on the ordinance as void for vagueness as applied - a CON issue that could be brought up collaterally.



On that, btw - you'd probably run into a major conflict between the DCA's. The 5th last year held that it could read from the intent and definition sections of an ordinance to provide meaningful standards to a conditional use process that had none. (Caps v St. Johns). Really bad decision IMHO. The First has let some vague delegations through (the old Alachua County case, and the more Windward Marina v Destin case). But the 3d, in the decision on remand in Omnipoint, held explicitly that a board hearing a QJ matter can't go beyond the standards and rules contained within the section under which it takes authority. The 3d also is the District that issued the leading cases in the "standards" area - North Bay Village; Save Brickell Avenue, etc. Under Omnipoint, you can't go wandering around other parts of the ordinance -OR THE COMP PLAN - for standards just because they're out there. The ordinance probably can specifically reference standards outside itself, but I'm guessing that the 3d wouldn't put up with some kind of "otherwise consistent with law" type of delegation language.



PREDICTION: While local governments have a number of wins under their belt upholding really bad, vague ordinances (that delegate almost unfettered discretion), the relationship between adequate standards and fair decision making is going to be one of the next frontiers of litigation at the local level. Too many ordinance grant too much discretion to boards (of adjustment, planning commissions, city/county commissions, DRC's) and any fair observer would agree that the discretion is being abused in too many cases (and that's regardless of whether you're a developer or a neighbor/NIMBY/environmentalist).

Yes, temporary moratoria are not takings - even if you have a development agreement

The 1st DCA just released this opinion, which overturned a circuit court finding of a temporary taking when development permits were held up due to an injunction based on Leon County's failure to implement stormwater policies, and that the existence or breach of a Development Agreement didn't create compensable damages.



Lots of interesting things here.

1) Ok, you're not likely to get temporary takings damages based on a moratorium when your property goes from 600,000 to over 1,000,000 in value (in 3 years) during the moratorium



2) You're also unlikely to get any sympathy for a temporary regulatory delay (ala Lake Tahoe) when the moratorium is based on an injunction against the issuance of devleopment orders based on a planned need for (but failure to provide for) adequate stormwater facilities and infrastructure.



3) The existence of a development agreement - and claims of the breach of it - aren't going to hold up in the face of a public-interest serving moratorium because a contract that becomes impractical or impossible due to a government order isn't enforceable; and that's without even getting into whether it would be enforceable under the Morgran Co v Orange County case (aka the Development Agreement Act doesn't trump the policy against contracting away police powers).



4) It also looks to me (and there's not enough detail on the original suit that led to the injunction for me to know) that this may be the first instance where we see 163.3215 used as a sword rather than a shield - that is, to proactively prevent the future issuance of building permits where it's clear that they would be inconsistent with the Comprehensive Plan rather than waiting until after the DO issues. [read the statute again - while you only have 30 days after a DO issues to challenge, 3215 actually provides for injunctive relief to prevent the issuance of an inconsistent DO]



I'm sure that some gov't attorneys out there are breathing a (probably justified) sigh of relief.

Whoops - but wait - discretion to extend the 120 day time for service

In this case out of the 1st DCA, a citizen filed a suit under s. 163.3215 within the 30 day window for doing so. But she didn't complete service for 124 days -- whoops - just outside the 120 day window.



The court dismissed, but apparently didn't consider the changes to Rule 1.070(j) which gives the court discretion to direct that the suit be served within a period of time. Remanded for reconsideration - and I would suspect that the court will use its discretion to let her proceed.

Getting proper findings - you may need to ask for them

Here is a case (albeit in a divorce setting) addressing the need/use for written findings and the need to ask for them.



As frequent readers are aware, it is my firm belief that due process requires that quasi-judicial decisions be accompanied by findings of fact (see the cases cited by Justice Pariente in GBV or even just try searching quasi-judicial plus findings plus due process in Lexis or Westlaw).



In the civil trial context, findings are not absolutely required but are strongly "recommended." I cited a federal court case for this a bit ago, and now here's a Florida case for the same proposition from the 5th. While it found that the findings it needed for effective review were contained or implicit in the opinion, it also held that if they were not, it would have jurisdiction to remand to the lower court to supplement the decision with those findings.



CRITICAL POINT: The 5th agreed with the 3d that the absence of findings was not in and of itself reviewable if the attorney did not object to the order through a motion for rehearing.



PRACTICE POINT: While this case (and the 3d's) doesn't govern quasi-judicial issues on its face, it's an important consideration and I wouldn't trust them NOT to apply it. If you get a decision from a quasi-juidicial panel with no (or cursory) findings, you probably should ask for a rehearing and clarification if you want to challenge the decision later on the grounds that the actual decision and findings aren't supported by CSE. Be specific. If the board doesn't provide them, you may have a slam dunk for a remand issue (unless it's a rezoning and they cite Snyder and GBV with approval). BUT also remember that while a quasi-judicial body has the authority to grant a rehearing or to reconsider its decision within the 30 day challenge period unless the decision has been challenged(see Smull), filing such a request doens't stay or toll the 30 day window for your cert petition.



A more difficult tactical question - if you win the QJ hearing but have no findings and expect that opponents will challenge in cert, do you ask for findings or not? Probably depends on whether you think that there is a CSE issue they can pick at.



Tx to Matt at Abstract Appeal for picking up on this one.

A cert case you have to read

The 5th released this opinion last week quashing a circuit court's quashal of an Orange County Commission's overturning of a DRC approval of what amounts to a site plan for a multi-family "phase" of a previously approved DRI.



One one hand, this looks like a plain vanilla case where there's no CSE for one finding, but CSE that supports 2 findings and the circuit court errs by quashing when some findings are supported.



The problem is that none of the findings should constitute a valid reason for denying approval and the public policy ramifications of this case are huge.



The phase in this case would be for more apartments in a development near UCF and the Community College. Neighbors object. The Commission denies this pretty much ministerial approval, citing three grounds:

1) too much density - which they calculate at one unit per bedroom instead of the standard DU definition of bedrooms plus bath and cooking facility. This finding was found not to be supported by CSE.

2) other phases had greater than average police calls and "nuisance problems" and this phase would have the same characteristics; and

3) the phase would "negatively impact the quality of life for area residents"



Apparently, the circuit did not make findings or conclusions as to whether findings 2 and 3 LEGALLY mattered and would justify denying the phase approval. But it's crazy - I've never seen an ordinance or development standard that would allow those findings to support denial of a DO.



Let's be clear about the implications here: Orange County found that because some people living in certain multifamily units were creating more police calls and related problems than other types of development in the community, it could deny approvals for that kind of housing for other properties or developments.



By extension, if a jurisdiction does a study and finds that multifamily housing that rents for under $1,500 a month or sells for under $200,000 has more police activity than more expensive units, this now seems to be legal justification for denying rezonings, site plan approvals, etc. for the affordable housing. If a certain area of town has more police problems, well, start denying permits for new development there - or don't let the people from "that community" spread to nearby neighborhoods.



In this case, the problem is probably (but not clearly) college students living in the apartments. But the Commission's action and the court's approval is so broad and the grounds SO clearly biased that it constitutes a blanket attack on multifamily and affordable housing in general. And while the 5th had to take the case as it got it, I think they did a real dis-service to everyone by not at least asking whether this case raised issues other than the CSE to support two findings that basically allow denials of DOs based on the behavior and actions of other people in other developments.



I'd really love to see the briefs in this case to try to figure out what was and wasn't argued.

-- given the completely outrageous and clearly illegal way that the Commission started counting the dwelling units, why didn't someone object to their continued participation on the basis of bias (they did this before, by the way in an earlier case)?

-- why isn't there a discussion to the effect regarding these findings?

-- if they related to some standard in the DRI DO or other LDR's, why isn't there an attack on the decision under a void for vagueness or arb/capricious application of the standard?

-- why isn't there any law at all here that argues that it violates due process and equal protection to deny a development order based on the actions of 3d parties?



I can only hope that there's a motion for rehearing or clarification in this case and that it somehow gets limited to much more specific facts than we see in the opinion. Otherwise, we have a really, really, really bad precedent that seems to allow the worst kind of discriminatory behavior on the part of local governments.



So - if any of the readers out there know more or have more info, please share it, either by commenting or by sending an email to me *(just click on my name).

When cert fails, go s 1983?

Last week I had an entry on how not to prosecute a takings case that also involved how not to attach 1983 liability on either the municipality or the individuals. Well, in this case, the 11th tells us a lot about when a decisionmaker could be personally liable for constitutional violations (alleged 1st amendment retaliation against an employee in this case). The critical distinction made bright is that of when a decision can't be hung on the County or City as the final policy maker (Monell immunity for the gov't) but CAN be hung on the official individually as the decision maker.



There's a great discussion about how various "cut outs" like administrative review boards can shield the local government from liability because it doesn't make the final policy but also provides the necessary due process. But it also points out that these same processes can't (necessarily) shield the official who makes the decision if the official's decision is binding (even if it is appealable).



There's also a very thorough discussion of estoppel concepts regarding how/when/why a litigant who loses a cert case against the decision of the quasi-judicial body (read BZA or even the commission) might still have a cause of action against the decisionmaker.



The point?



1) If the local commission isn't the policymaker - that is, if it doesn't get its hands dirty in making the decision - it avoids immunity under Monell. So if you've got a BZA or other board to make quasi-judicial determinations, the government can avoid liability.



What wasn't answered in this case is what happens if the commission doesn't make the decision, but gets to hear and judge it in a quasi-judicial capacity - if they're only applying policy and deciding facts, are they still the policymaker (I'd say so, but)... (not that based on another recent case they probably have absolute immunity on a personal level).



2) If a local official gets to make a policy call - say the Zoning Official gets to turn down permits or the County Administrator makes determinations of site plan approvals - the official may well have personal liability for decisions that violate an applicant's rights - even if there is an appeals process after their decision. Unless you have an APA style situation where taking the decision to a hearing makes the official's decision preliminary rather than final, the official is potentially liable (though qualified immunity may attach).



Think back to Yardarm - aside from the really erroneous "there's no property right here" part of the decision, the Court let the City off on the basis that the zoning official couldn't make policy. You wonder what would happen to the quality of decisionmaking for good or ill if a few zoning administrators get sued personally under 1983 for violating due process, equal protection and/or takings.



Why might we see suits against the "shallow pockets" of the administrators?



Many of us know or have deep suspicions about situations we've been in where the administrative officials were taking pretty extreme positions without "official" direction from the County administrator/City Manager/or Commission itself - pretty much knowing that someone had counted noses on a position and that a policy was being established without any official responsibility being taken. In such a situation, maybe a suit against the administrators involved will lead them to move the responsibility up the line and clear away some of the cobwebs -- a local government kind of "transparency" that so many corporations have found themselves subject to in the past few years.

When you take you gotta give . . .

. . . as sung by Lynn Anderson in "I Never Promised You A Rose Garden" (1970) . Brevard County and the Brevard County Mosquito Control District bought themselves a piece of deeded (but apparently not navigable) marshland through inverse condemnation in Brevard_v_Blasky, decided last week by the 5th DCA. The case has very good discussion of common law dedication and acceptance principles as well as a good discussion of licenses to use land and also an introduction on submerged lands issues and the timing and role of navigability on sovereignty lands.



The Blaskys had 40 acres, including 27 acres of marshes, tracing their title back over 100 years to an Internal Trustees deed. In the 50's a set of dikes were built to flood the 27 acres for mosquito control under a 10 year license.



Many years later, various entities try to get permanent rights and when the Blasky's balk, start fighting them. The Blaskys revoke the District's right to flood the land and when the land isn't drained, sue in inverse condemnation. They win in the trial court - who determines: a) that the land wasn't dedicated; b) that no equitable principle demanded that the District be allowed to flood the land in perpetuity, and c) that the land wasn't navigable as of the date of entry of Florida into the Union and therefore the lands weren't sovereignty. The 5th upholds the trial court on all bases.



What we don't find out is how much the Blaskys got in damages. I'd love to know! Was it nominal (value of submerged lands w/no development rights?); equal to what the Trustees get these days for renting the bottom under navigable waters to folks with riparian rights?



Folks who worry about takings taking over environmental issues shouldn't be overly concerned about this one - it's a pretty fact-based situation. Who knows whether the court would have found that the lands weren't navigable waters if the District hadn't diked and flooded them 50 years ago? And the County and Mosquito District weren't out to create or recreate wetlands - they wanted to keep the dikes and use the land for impounding stormwater. So I don't see this as a victory for anti-environmental property rights extremists - more a case that where the government sees value in taking, improving and using land (submerged or not), it needs to buy them if it doesn't own them.



And of course I'm sure that there's more to this story than reached the opinion - if anyone wants to comment or add background, the "comment" button is right below.

Due process means a real "day in court"

The 4th DCA issued a recent opinion that again strengthens the rule that local procedures cannot be used to deprive a person of due process and the protection of interests in a fair hearing that has effective judicial review.



In this case that involved a dismissed firefighter's attempt to get a review, the 4th held that the firefighter could attack the decision in a declaratory action where his request for a grievance (that would result in a reviewable arbitration decision) wasn't acted on by the Union and the City took the position that if he requested a grievance he couldn't demand a hearing before the Civil Service Board. The court's point: you can properly give a person a choice of remedies, but you can't deprive them of the right to a due process-protected procedure by how that choice is implemented.



Applicability to local land use law? How about the fact that most land development regulations today provide for an administrative appeal process for a landowner/developer who is denied a building permit, clearing permit, variance or similar process, but not aggrieved or affected neighbors. If the neighbors can meet the 'special damages' tests, they get to go to circuit court for a remedy because their interests are involved and the local government can't determine their rights by who they do and don't provide standing to enter the administrative review process.

Cert- law of the case on remand

Under ABG Real Estate Dev. Co. of Fla., Inc. v. St. Johns County, 608 So. 2d 59, 64

(Fla. 5th DCA 1992) (noting that a court's certiorari review power is limited to quashing

the order reviewed), a reviewing court cannot direct the lower court how to resolve the case on remand.



HOWEVER - in this case issued by the 2d DCA last week, the court clarifies that legal holdings in a cert decision are binding on the lower tribunal as the law of the case. The lower court cannot retry or reinterpret the case in ways that are inconsistent with the direct or implied legal determination made by the reviewing court.



This is an important limitation on the discretion of the lower tribunal to jigger its analysis to come to the same result after remand. More on other limitations later.

Too cool not to share

It turns out that the New York Times (along with FindLaw) maintains a site that has the US Supreme Court current docket by month. The entries include the lower court opinions, orders and briefs in the cases. For cases argued there are links to the transcripts.

Here's the link

Meandering Jurisdiction

Sometimes I troll the DCA opinion sites looking for interesting cases outside the land use area that bear on our issues. This case doesn't have anything at all to do with land use, but it's so wild and unexpected, I had to post it.



Turns out that the boundaries of the State, at least on the east coast, are defined by the easternmost edge of the Gulf Stream. Yep. Those of you with any marine background will probably know that the Stream, well, meanders, depending on the time of year, direction and strength of the wind, etc.



As a result, jurisdiction over a shipboard doctor in this wrongful death case depended on where exactly the ship was at the time and where exactly the Gulf Stream was on that day.



Strange but true.