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:

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).

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.

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.

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.

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.