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.

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 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.

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 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,

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

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.

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

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.)

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.

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.

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.

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.

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:

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 of
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.

Maybe 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.