Procedural Complexities in Challenging Development Orders

In City of Sanibel v. Maxwell, here's the opinion, the 2d DCA granted a writ of prohibition against a trial court to prevent consideration of a "reopened" lawsuit.

There was a dispute over a grant of a variance. Decision was subject to an (unspecified as to procedure) adminstrative appeal, which failed. The decision was then taken to circuit court in declaratory action. Action was dismissed w/out prejudice to file a petition for writ of certiorari, which apparently wasn't pursued (more on this later). That order (the language of which we are not provided), was not appealed.

Two years later, the plaintiffs try to revive and amend the suit with a second amended complaint and the trial court grants the motion. The writ of prohibition proceeds and is then granted on the grounds that the trial court lacked jurisdiction to consider the motion to amend.

OK, this may be a correct result, but it points out a slew of problems for neighbors challenging development orders - and also similar problems for landowners challenging denials.

First, let's look at the original dismissal. We don't know if it properly characterized the action below as quasi-judicial, and therefore subject only to cert review. We don't know if the action was filed w/in 30 days, or if the dismissal appeared to be a death knell to any challenge. Moreover, we don't know if it was a proper, appealable "final order." There is a "magic words" component to an order granting a motion to dismiss - if it only grants the motion, but doesn't actually dismiss the underlying case, it's not a final order and it's not appealable. This then gets into an entire issue of when/how you'd appeal it, whether you'd need to appeal it, etc.

Then there's the fact that the court dismissed the case without leave to amend. Given the 2d DCA decision in the recent Concerned Citizens case, a petition for cert is conducted under the civil rules. Given another recent decision, these are original actions, not appeals. That means that, if the Plaintiffs had properly invoked the original jurisdiction of the court within 30 days of the action, there is a very good arguement that they should have been given leave to amend the already instituted action to be a proper petition for certiorari and to file an appendix, etc.

And if the action was not dismissed by a final, appealable order (no analysis in this opinion), and if it improperly treated the issue of "reforming" the pleading to be a petition for writ of cert, then the circuit court probably did have jurisdiction and the 2d's action is incorrect. Unfortunately, there's not enough information in the opinion to tell.

We really, really need to get better opinions out of our appellate review process on land use decisions. A good reason for creating a new, independent administrative tribunal to hear all administrative appeals from local DO decisions.

State Imposition of Erosion Control Line a Taking Because it Extinguishes Riparian Rights

Beach renourishment is, obviously, a big deal in Florida. So are riparian rights, which include the right to accretion or reliction at the shoreline, and the right of contact with the water.

Before a beach renourishment gets approved, the Florida statutes require that an "erosion control line" be established. This line demarks the point between the upland and the mean high water line (at the time). Under the statute, once established and recorded, it destroys the upland owner's right to accreted lands (including the right to use them for density).

In this opinion, in Save our Beaches v. DEP et al, The 1st DCA held that this destruction of riparian rights is a taking, and that because the statute makes no provision for compensation, it is an unconstitutional taking.

It gets a bit complicated after that, at least for non-admin lawyers. The issue in the case was the issuance of a permit to use sovereignty or submerged lands for the beach renourishment project, which requires that if riparian rights are to be harmed, the state must use eminent domain. That hadn't been done, and the Administrative Law Judge issued the permit, because of the effects of the statute (which was presumed constitutional). Having found the statute unconstitutional, the Court overturned the issuance of the permit. It did not invalidate per se the statue. But it did invalidate the recordation of any deeds or survey showing the line, if those instruments showed a seaward boundary different than the property owners' deeds.

WHAT DOES IT MEAN?
I think this means that any riparian owner on the beach or gulf whose property has been subjected to the recordation of an erosion control line can sue to have that line erased from any record, and clear any title issues to property seaward of the line.

HOWEVER, accretion historically applies to natural processes. What we DON'T know is what happens to the rights of the owners of what was waterfront property where there has been a beach renourishment project that has artificially extended the mean high water line seaward of the historical mean high water line.

Lots of fun, folks!

Important Notice Case from US Supreme Court

In Jones v. Flowers, et. al, here's the link, the US Supreme Court held that notice concepts of due process were violated by the tax sale of a property when the certified mail notice came back unclaimed and the the taxing authority did nothing to determine the actual location of the property owner or to post the property.

This one's long, but should be read. It has poetential application to code enforcement and other zoning enforcement proceedings that could result in burdens (like liens) on property that amount to a deprivation. It might also apply to downzonings - particularly if they would result in a property becoming non-conforming (the loss of the existing right to an existing use rather than simply a potential future right of use).

Bert Harris Settlement - Maybe More Complicated than You Think

A couple of years ago, I blogged Vetter v. Charlotte County - which dealt with preliminary injunctions and vested rights. Now it's back as Charlotte County Park of Commerce v. Charlotte County. Here's the opinion - which anyone interested in Bert Harris actions MUST read.

It appears that a settlement agreement to deal with the case has blown up. One of the elements is that the landowner filed a notice of a Bert Harris claim during the pendancy of the other litigation. The "claim" was subject to the settlement - before the actual Bert Harris lawsuit was filed.

While gets to the issue. The Act provide for the presuit notice of the "claim" (including the requirement to file appraisals), a 180 day settlement period, then the ability to file a suit. The Act also requires court approval of the settlement "under this section" if it would contravene a statute (the most likely candidate in most circumstances is 163.3194 - the consistency requirement- if a settlment arguable includes a variance from or interpretation of a comprehensive plan provision).

So, is a settlement "under this section" a settlement only of a filed lawsuit, or of a noticed claim?

The 2d District took the position that once the notice of claim was filed, the operative provision for approval of the settlement agreement took effect. That is, once there is notice of a Bert Harris claim, the parties are bound by sections 70.001(4)(d) 1 and 2 regarding the settlement. In this case, that meant sending the issue back to the trial court, because if the Bert Harris claim was settled, then the Plaintiff might be entitled to the relief sought (judicial approval and enforcement of the settlement).

3d Reverses its position in Turnberry case

I wrote awhile back about a 3d DCA opinion holding that a particular commercial use wasn't permitted by the Turnberry Isle zoning. Here's a twist:

On rehearing, the court substituted a new opinion, here's the link, that found that the City of Aventura's determination that the use was a vested non-conforming use was reasonable, and therefore due deference. It therefore 'unquashed' the circuit court decision, upholding it instead.

On one hand, this seems a reasonable and fair outcome. On the other, both neighbors and developers live and die by the same sword when it comes to local discretion. I firmly believe that local interpretation should be striclty constructed and reviewed by courts, using the legal rules of statutory construction, for the simple reason that local agencies don't always follow those principles in construing local codes.

3d DCA - Interpretation of Zoning Code and Density

In Marina Grande North v. Fortuna Smulker et al, here's the opinion, the 3d upheld the circuit court's overturning a rezoning on the basis that the city allowed too much density by including privately owned bottom lands in the calculation when the definition of density excludes "water bodies" from the lot area for density purposes.

Seems like a simple enough interpretation question - but now, on to the litigation over the extinction of property rights in submerged, privately owned lands.

1st DCA to Columbia County - Get Real, or Local Gov't Abuses of their Zoning Regulations are Endemic

Ok, I defy anyone to read this opinion, in Stroemel v. Columbia County, and maintain the belief that local governments can be trusted to fairly interpret and apply their own zoning regulations, or even to fairly represent their meanings to the local circuit court.

Stroemel owns property on a river in Columbia County on which he operates a canoe/kayak rental operation. The zoning regulations applicable to his property permit "public resource based recreation facilities." Despite the fact that the river is clearly a public resource, and that a canoe/kayak rental is clearly a "recreation facility" the county tried to shut him down.

Even more incredibly, the county argued to the trial court (and the circuit court judge agreed - HUH?) that the term "public resource" didn't really mean what it said - facilities that used or accessed a public resource. Instead, "resource" wasn't mofied by public - public meant publicly owned.

This argument so doesn't pass the smell test that the county's attorneys should be sanctioned for bringing it forward, even if some locally elected judge was conned into accepting it (as happens all too often - a perfectly decent judge in DeSoto County recently ruled in a case I'm involved in that rezonings aren't development orders, despite the clear language of chapter 163). I believe that local judges trust that local government attorneys will behave as ethically as the state attorneys that appear before them -- that they will be bound to make limited, fair and constitutionally constrained arguments. Instead, too many local attorneys think that their job is to twist and bend the law into any shape that they can in order to defend the actions of their boards, and the boards' political agendas.

But, on a more useful (and less ranting) note - the decision includes a GREAT recitation/summary of the Rinker rules on statutory construction (without the internal cites, etc.). This paragraph should be part of EVERY land use lawyer's lexicon:

In determining whether appellant’s proposed development comes within
the ambit of a “public resource based recreation facilit[y],” the following
rules of statutory construction should be employed:
(a) In statutory construction, statutes must be given their plain and
obvious meaning and it must be assumed that the legislative body knew
the plain and ordinary meanings of the words.
(b) Statutes or ordinances should be given that interpretation
which renders the ordinance valid and constitutional.
(c) Since zoning regulations are in derogation of private rights of
ownership, words used in a zoning ordinance 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.
Municipal ordinances are subject to the same rules of construction
as are state statutes . . . . [C]ourts generally may not insert words or
phrases in municipal ordinances in order to express intentions which do
not appear, unless it is clear that the omission was inadvertent, and must
give to a statute (or ordinance) the plain and ordinary meaning of the
words employed by the legislative body (here the City Council).
Rinker Materials Corp. v. City of North Miami, 286 So. 2d 552,
553-54 (Fla. 1973)
(citations and footnotes omitted).

It's amazing how frequently local governments, boards of appeal, and circuit courts forget these basic canons.

Session 9 - Back from the Abyss - the permit denial bill ends up very good

Whoo!

The bill (here's the link) requiring written denials of development permits passed WITHOUT the offensive language exempting quasi-judicial decisions from providing findings and conclusions. The House analysed some of the requirements in committee and seems to have realized that they were walking into an area that the judiciary had doubts about and that was highly contested between various land use constitutencies.

As adopted, the bill is a significant step towards local accountability and judicial review, though I would have preferred a bill governing judicial review of local administrative actions.

Here's the operative text (there's a seperate but identical paragraph for municipalities under 166):

125.022 Development permits.--When a county denies an application for a development permit, the county shall give written notice to the applicant. The
notice must include a citation to the applicable portions of an ordinance, rule, statute, or other legal authority for the denial of the permit. As used in this section, the term "development permit" has the same meaning as in s. 163.3164.

While the bill doesn't provide a remedy, the "shall" language indicates a mandatory act. Here's the question: will the courts invalidate denials without a written notice, or will it simply order the government to issue a written denial (forcing litigation)

Here's the more important question: given the incredibly poor record of local governments at implementing legislative directives that they don't like (maintaining illegal restrictions on mobile/manufactured housing, for example), how many local governments will pretend that they don't know about this and how many local government attorneys will take the "so sue us" attitude.

For such future litigation, the legislative history might be informative. Here's a link to the House staff analysis. That analysis makes clear that the "written notice" is not a written findings requirement and that it is unclear whether the courts will interpret it as such. It also notes that the Judicial Admininstration Commission declined to recommend to the Supreme Court that it adopt a rule requiring findings because of seperation of powers concerns, though noting that due process considerations could justify a judicial requirement of findings. The Staff Analysis also touches on the lack of remedy issue, raising the same question I raised above.

So here's the important aspect of the Staff Analysis: if local government attorneys claim that the legislature's failure to require written findings indicates that the Legislature didn't think them necessary, that's simply wrong. In point of fact, the Senate version of the bill would have explicitly exempted local governments from a written findings requirement, and that exemption has been pulled. So the more reasonable view is that the Legislature may have thought that written findings are appropriate and even necessary.

Session 8 - Annexation and Impact Fees

Here's the text of one of the most-awaited bills: annexation and the impact fee act.

The annexation bill provides for one of those highly complicated processes for dealing with a highly complicated subject. It provides for interlocal boundary agreements to rationalize both the financial and services aspect and the process for annexation. While it's still ultimately voluntary, it does provide a framework and some incentives for local governments to come to agreement about long-term boundary issues.

The impact fee bill is a serious disappointment. It does require that fees be based on "the most recent and localized data," that fees be segregated into seperate accounts, that notice of changes to fee schedules be issued 90 days prior to adoption, limits administration fees to actual cost, and requires audits.

It doesn't require credits for taxes paid by new development, require local government to meet the level of service standards that they use to set the fees, or otherwise structure the methodologies used. So the local governments win again, and the development community will be forced to continually litigate (insofar as it can afford to) the legitimacy of the abusive and unfair fees that many local governments have adopted in the absence of controlling legislation on methodology.

Session 7 - More DRI and Ports

Here's the text of another GM bill addressed water dependant/related uses, encouraging marina siting plans, limiting boat racks, addressing more/different DRI build out criteria. It also gets in a restriction on the conveyance or management of port facilities by foreign entities.

Session 6 - Affordable Housing

An extensive affordable housing bill passed - here's the text. Some key provisions related to growth management (as opposed to financing) -- provisions to simplify the use of the small scale amendment process for projects that include affordable housing, provisions increasing DRI thresholds and substantial deviation thresholds for DRIS providing workforce housing, provision for expedited review (and 1 hearing transmission) of comp plan amendments that relate to affordable housing.

It also requires local governments to do a "surplus lands" inventory to identify sites for affordable housing projects and authorizes local governments and school boards to build and supply affordable housing for their employees.

It's a start at mobilizing a wider range of resources to attack the problem and to simplify the regulatory context.

What next? How about provisions that local governments can't apply a zoning restriction that allows less than 15 units per acre on lands within urban service boundaries, with urban services, so long as concurrency is met and the project will provide at least 15 percent affordable or workforce housing? How about making the 2005 "granny flat" provisions mandatory instead of optional?

Session 5 - DRI and other changes

OK, a very long and complicated growth management bill with a number of changes to build-out and abandonment of DRIs passed. It also has some other "train" items in it. Time precludes a full analysis, but here's the text. This was House 683 - some other house bills on growth passed, as well as some Senate bills.

One of the more "interesting" provisions of this one limits exemption from Chapter 403 permitting of of docks in completely private waters to those of 1000 square feet or less. Another bill (won't cite it here) puts additional restrictions on the permitting of new dry storage racks. While on one hand the legislature and public cry about the loss of waterfront access and boating facilities. on the other they just increase the regulatory restrictions that apply to building new facilities. Great public policy.

Session 4 - Limit Local Gov't Regulation of Electrical Substations

A bill passed that signficantly limits local governments' ability to use zoning to exclude electrical substations from residential and other districts or to impose burdensome buffer or landscaping requirements. Here's the text.

I hate to say it, but we need more of these. Why? Because local governments continue to cater to NIMBY's and abuse their home rule powers by over-regulating the provision of necessary facilities.

Session 3: Mean Spirited Group Home Bill

The Legislature passed a bill (here's the link) that expands the definitions of community residential homes to those licensed by almost any regulatory agency. It also requires that an operator basically prove that the local government has been notified prior to the license to operate being issued.

Why? To expand the effective scope of the 1000 foot seperation restriction on facilities that serve 6 or fewer residents and which are therefore considered by state law to be single family residences. That is, the changes bring in group homes that are licensed by a wider range of agencies and therefore applies the 1000 foot radius restriction to them, thereby running them out of a huge number of neighborhoods.

Session Results 2: Over - restrictive eminent domain bill passes

The legislature passed a grossly over-restrictive eminent domain bill. Here's the link. It will generally require a condemning authority to hold property for 10 years before conveying it to a private party or entity.

Even worse - it purports to prevent the use of eminent domain to acquire blighted properties (OK, anti-CRA) and holdst that the use of eminent domain to abate a public nuisance is not a valid public purpose.

Given the court cases out there that hold that over-restrictive nuisance abatement actions (like shutting down a motel for a year without first giving the owner a fair chance to abate nuisances) constitute a taking - inverse condemnation - this legislative holding is patently ridiculous. The essence of the injunctive power of courts to order a private party to cease a zoning violation is that such violations are public nuisances. If there is no valid public purpose in buying property to abate a nuisance, how can there be a valid public purpose in ordering a person to abate it?

Can't wait to see THAT as a defense.

Session Results 1: Eminent Domain

The Legislature approved a proposed constitutional amendment that would require any authorization to use eminent domain to convey property to a private party to be authorized by a general law passed by a 3/5 majority. This seems an appropriate start to reform as opposed to some of the more restrictive provisions that were under consideration.

Here's the engrossed resolution.