The Fourth Does a Great Job of Dealing with the Wrong Issue - Vagueness and Criteria

In Friends of the Great Southern Hotel et al v. City of Hollywood, the Fourth District got half the law right (and maybe the right result) but missed the real issue in upholding the validity of parts of the City of Hollywood's Historic Preservation ordinance. I think the result is important to future cases regarding whether criteria are appropriate, but ignored an entire realm of established law that states that the structure of a quasi-judicial standard must limit the discretion of the quasi-judicial board.

Background: It's not entirely obvious from the opinion, but the issue was whether the hotel, which had previously been designated as an historic building, could be partially demolished for redevelopment. The ordinance standards at issue involved the City Commission's consideration for a permit to demolish a such a structure. So the denial of a permit would affect the owner's rights as much as the denial of a site plan, etc.

Disclosure: the attorney for the citizens was a friend of mine, Ralf Brookes, and we had discussed the case in detail as he was preparing the trial and appellate briefs.

Guts: the ordinance language requires the commission to consider a set of factors in determining whether to grant the permit. Unlike many earlier permitting ordinances, it does not set forth a scenario in which a negative finding on one of the factors leads to a requirement of denial, and the absence of negative findings to a requirement to issue. It simply requires the commission to consider them.

The factors here are really good examples of criteria which are not wholly objective (e.g. numerical) but which are clear and ascertainable.

d. Evaluation criteria. The City Commission and the Board shall consider the
following criteria in evaluating applications for a Certificate of Appropriateness for Demolition of buildings, structures, improvements or sites.
(1) The building, structure, improvement, or site is designated on either a national, state, or local level as an historic preservation district or an architectural landmark or site.
(2) The building, structure, improvement, or site is of such design, craftsmanship, or material that it could be reproduced only with great difficulty and/or expense.
(3) The building, structure, improvement, or site is one of the last remaining examples of its kind in the neighborhood, the county, or the region.
(4) The building, structure, improvement, or site contributes significantly to the historic character of a historically designated district.
(5) Retention of the building, structure, improvement, or site promotes the general welfare of the city by providing an opportunity for study of local history, architecture, and design or by developing an understanding of the importance and value of a particular culture and heritage.
(6) There are definite plans for reuse of the property if the proposed demolition is carried out, and those plans will adversely affect on [sic] the historic character of the Historic District.
(7) The Unsafe Structures Board has ordered the demolition of a structure or the feasibility study determines that the retention of the building would deny the owner of all economically viable uses of the property.
(8) The information listed in the Historic Properties Database (a listing of historic and non-historic properties) has been considered as a guideline in determining whether a Certification of Appropriateness for Demolition should be issued.

Looking at the structure of the entire section, it is clear that the intent of the ordinance is that if positive findings are made for criteria 1-6, and the data in 8 have been reviewed, then the permit should be granted only if the criteria in 7 have been satisfied. Any other approach leaves the ordinance arbitrary-- would or could the commission grant a demolition permit because the building contributed significantly to the historic character of a district?

The issue raised by the plaintiffs was that the ordinance as written and implemented granted unfettered discretion to the City Commission to issue a demolition order regardless of the findings that were made because all it had to do was consider the issues. Note that there is a HUGE body of law in Florida disapproving ordinances or statutes for these reasons. A few examples: Cross Keys -- listing general criteria for areas of critical state concern and leaving the executive branch to determine when and how to apply them violated the separation of powers; the Tampa Bay Pilots case, where a statue that allowed a quasi-judicial licensing board to consider other factors granted it unfettered discretion; the entire line of Ocala/ABC cases on liquor licenses, where the rule was established that the requirement of uniform administration means that where standards in a permitting procedure are met, the license must be granted; and the Irvine v. Duval County and Narco Realty lines of cases that apply that concept to zoning matters. Two relatively recent cases from the Florida Supreme Court - -Schiavo and Lewis -- made it clear that language that provides that an administrative actor "may" take action when certain (objective) criteria are met delegates impermissible legislative discretion.

These cases do not ultimately rest simply on whether the criteria are sufficiently precise, but go also to the structure of how the quasi-judicial administrative body applies the criteria. There is another set of cases on that focus on the criteria, and the Fourth District dodges the important issue by doing a really good job of applying these cases, so good that in fact I think the following passage will become the language that gets cited in future cases, and so good that I will risk boring you all by citing in full here:

In order for ordinances which provide decisional authority to be constitutional, they must have mandatory objective criteria to be followed when making a decision. See, e.g., Miami-Dade County v. Omnipoint Holdings, Inc., 811 So. 2d 767, 769 (Fla. 3d DCA 2002), decision quashed on other grounds, 863 So. 2d 195 (Fla. 2003) (holding that provision of Miami-Dade County Code on unusual uses was legally deficient because it lacked objective criteria for the County’s zoning boards to use in their decision-making process); City of Miami v. Save Brickell Ave., Inc., 426 So. 2d 1100, 1104 (Fla. 3d DCA 1983) (“[I]f definite standards are not included in the ordinance, it must be deemed unconstitutional as an invalid delegation of legislative power to an administrative board.”); ABC Liquors, Inc. v. City of Ocala, 366 So. 2d 146, 149 (Fla. 1st DCA 1979) (“Any standards, criteria or requirements which are subject to whimsical or capricious application or unbridled discretion will not meet the test of
constitutionality.”); N. Bay Village v. Blackwell, 88 So. 2d 524, 526 (Fla. 1956) (“An ordinance whereby the city council delegates to itself the arbitrary and unfettered authority to decide where and how a particular structure shall be built or where located without at the same time setting up reasonable standards which would be applicable alike to all property owners similarly conditioned, cannot be permitted to stand as a valid municipal enactment.”).
Objective criteria are necessary so that:
1. persons are able to determine their rights and duties;
2. the decisions recognizing such rights will not be left to arbitrary administrative determination;
3. all applicants will be treated equally; and
4. meaningful judicial review is available.

Miami-Dade County, 811 So. 2d at 769 n.5.

Section 5.6.F.5.d provides eight objective criteria to follow, as evidenced by the
Commission’s fifteen-page summary report detailing their findings as to the eight criteria. The criteria need not be intricately detailed. Windward Marina, L.L.C. v. City of Destin, 743 So. 2d 635, 639 (Fla. 1st DCA 1999) (“Impossible standards are not required.”); Life Concepts, Inc. v. Harden, 562 So. 2d 726, 728 (Fla. 5th DCA 1990) (“While it is true that the ordinance did not contain specific quantitative guidelines . . . , that level of specificity is neither required nor workable.”). All that is required is that the criteria do not permit the decision makers to “act upon whim, caprice or in response to pressures which do not permit ascertainment or correction.” Nostimo, Inc. v. City of Clearwater, 594 So. 2d 779, 781 (Fla. 2d DCA 1992) (quoting Effie, Inc. v. City of Ocala, 438 So. 2d 506, 509 (Fla. 5th DCA 1983)). The specificity of the guidelines will depend on the complexity of the subject and the “degree of difficulty involved in articulating finite standards.” Askew v. Cross Key
Waterways, 372 So. 2d 913, 918 (Fla. 1978).

The Fourth then blows the real issue (IMHO) when it analyses the rest of the problem this way:

Friends specifically argue that the code fails constitutionally where it provides that “The City Commission and the Board shall consider the following criteria.” Friends highlight that the commission only has to “consider” the criteria, that there is no clear direction as to whether one or all of the criteria must be met, and that there is no indication whether or not one or more factors can simply be considered and then disregarded. The Code’s language of “shall consider” is not discretionary.
. . .
Unlike the codes in City of Miami and Effie, section 5.6.F.5.d uses mandatory language and does not allow the commissioners to consider factors outside the criteria provided. The criteria of section 5.6.F.5.d are also objective and sufficiently detailed, elements which are necessary to uphold its constitutionality.

The problem with this ordinance, and this analysis, is that the structure of the delegation itself does not oblige the city commission to treat the objective criteria in a consistent, reviewable fashion. The real issue in this case was not whether the criteria are objective, but whether simply requiring the commission to consider them provided a meaningful limit on the commission's ultimate decision regarding whether the grant the permit. The Fourth District simply ignores the whole Cross Keys, Lewis, Schiavo and City of Ocala cases' focus on the ultimate discretion of the administrative actor to act or not act.

All that said, there is another unspoken issue in the entire case (and which may have subtly affected the outcome) has to do with takings and due process for the property owner. Here, the plaintiffs were trying to throw out the part of the overall regulatory scheme that provided a property owner with the means to get a permit to demolish a previously designated building. Without such a provision, the entire ordinance may well have violated a landowners' due process rights or created a significant taking (or Bert Harris) liability.

The Florida Supremes Resolve an Important but Stupid Issue

In Neumont v. State of Florida, Monroe County, the Florida Supreme Court resolved the unbelievable question of whether a local government body can amend a zoning text amendment that affects 10 or more acres at either the first or second public hearing as opposed to sending it all the way back through publication, notice and new hearings.

The contention is frankly moronic, but gets made all the time by "antis" who demand compromises and then claim that an ordinance that gets amended to address their issues (or, maybe, developer issues) is illegal.

The court held that changes to the terms or regulations in a proposed ordinance, even if they would affect the title (like they pull a section out) don't require re-notice unless the scope of the ordinance changes fundamentally. Like an ordinance that is published as addressing development standards for one zone district suddenly being amended to add new provisions to another district.

BUT what's scary is their language analysis of the provisions for non-zoning ordinances and for ordinances that affect 10 or fewer acres.

For "regular" ordinance, the court implies language in the statute that requires that the notice include reference to where the text of the ordinance may be viewed as meaning that the ordinance text must be adopted as proposed or noticed. I had never heard that an ordinance could not be amended after being noticed and before being adopted - this seems unnecessarily restrictive.

For zoning ordinances affecting 10 or fewer acres, the notice must include the substance of the ordinance as it affects the noticed owners/neighbors. The court interprets this to mean that

This subsection requires compliance with the notice requirements of subsection
(2), described above, and requires that counties mail to each property owner
affected by the proposed ordinance a summary of the proposed ordinance
explaining how the proposed ordinance will affect them.

. . .

Unlike the regular enactment procedure described in subsection (2), however, subsection (4)(b) does not require that drafts of proposed land use ordinances be made available for public review. Also unlike subsection (4)(a), subsection (4)(b) does not require that counties provide notice of the substance of the proposed ordinance or its effect on property owners, and does not require counties to comply with the provisions of subsection (2).

The implication could be that rezoning ordinances for fewer than 10 acres (governed by 4(b)) -- which also would include most rezonings that accompany a small scale plan amendment -- can't be amended without re-noticing. The requirement that drafts be made available for review, and that the affects of a change be stated, should not create a result where the commission cannot respond to the input that is generated by the publication. Just as with the "larger" zoning changes, such a result would be unreasonable and inconsistent with the purpose of the statue -- it implies that if the commission hears issues from neighbors, it can't impose an additional condition without republishing notice and holding a new hearing. Such a result is inconsistent with the purpose of the notice provisions and will only result in them being removed, with neighbors getting less rather than more protection.

The core decision was right - let's hope that the court hasn't created too much collateral damage.

Holy Cow! Fla. Supremes Say Oops (kind of) in Strand

Wow! Three weeks after issuing Strand v. Escambia County, and after numerous motions for rehearing poured in because of the implications of the decision on existing non-validated bonds and obligations, the Supreme Court issued this revised opinion AND granted rehearing.

The revised opinion expands protections for bonds and obligations already issued (especially critical to CRAs) and also COPS (certificates of participation) already issued by school boards under the Sarasota School Board case.

Here's the language from the order on rehearing, the likes of which I have never seen:

Having issued a revised opinion, the Court defers ruling on the Appellee's Motion for Rehearing and Clarification until after the below scheduled oral argument.
The Court's order dated September 20, 2007, previously setting oral argument, is hereby vacated. Oral argument on rehearing is hereby scheduled at 9:00 a.m., Tuesday, October 9, 2007. A maximum of twenty minutes to each side is allowed for the argument, but counsel is expected to use only so much of that time as is necessary. The motion to expand time for oral argument, filed by Escambia County, Florida, is denied. Parties and amici curiae on each side shall agree on the division of time for each respective side prior to oral argument, but not more than one attorney may speak on behalf of each category of interest.

The revised opinion removes any issue with regard to bonds issued or validated prior to this opinion becoming final and they are unaffected. Additionally, the revised opinion removes any issue with regard to certificates or obligations issued in reliance upon State v. School Board of Sarasota County, 561 So. 2d 549 (Fla. 1990), and they are similarly unaffected. Therefore, the Court will not entertain any arguments related to bonds previously issued or validated or any arguments related to certificates or obligations issued in reliance upon State v. School Board of Sarasota County.

Here's the guts of the revisions to the opinion:

Also, our decision in this case does not affect bonds that were validated prior to this opinion becoming final. See Miami Beach, 392 So. 2d at 895; County Comm’rs v. King, 13 Fla. 451 (1869). As this Court has stated, “after validation, the courts will protect even the purchasers of unconstitutional bonds.” Miami Beach, 392 So. 2d at 895 (citing Giles J. Patterson, Legal Aspects of Florida Municipal Bond Financing, 6 U. Fla. L. Rev. 287, 289 (1953)). Moreover, our decision in this case does not affect bonds that were issued prior to this opinion becoming final. In other words, this opinion does not retroactively apply to bonds and obligations that have been issued based on the authority of the precedent from which this Court now recedes.

Accordingly, we reverse the trial court’s final judgment in this case and hold that Escambia County does not have authority to issue the subject bonds without a referendum. In so doing, we recede from Miami Beach.8

8. Our receding from Miami Beach does not impact the ultimate holding of State v. School Board of Sarasota County, 561 So. 2d 549 (Fla. 1990), or the validity of similar certificates of participation issued or to be issued in reliance thereon. See 561 So. 2d at 552 (explaining that like the agreements this Court authorized without a referendum in State v. Brevard County, 539 So. 2d 461 (Fla. 1989), the agreements at issue in School Board of Sarasota County do not “matur[e] more than twelve months after issuance”).

[emphasis added by RL]

The local government community and school boards all over the state have been in a panic over whether the original decision left existing bonds in limbo, and I heard last week that pretty much the entire body of TIF bonds had been de-rated by S&P due to the decision (and the fact that these generally don't get validated).

I'll say it again - WOW!

Second District Affirms Fourth on Annexation in Charter Counties

In City of Largo et al v. Pinellas County, the Second District held that a provision in the county charter could not authorize a county ordinance governing voluntary (or other) annexation, citing the Wellington case issued by the Fourth DCA last year. To comply with the applicable statute, any alteration to the annexation provisions must be included in, not merely authorized by, the charter.

Read the opinion to get a feel for the kind of turf wars that are springing up all over the statee over annexation issues. I think there have been more reported cases involving counties suing to stop city annexations in the last four years than in the previous twenty, not to mention all the variations on county charter amendments intended to restrict municipal growth.

How NOT to Attack Inadequate Notice - Why We Really Need a General Review Statute (Again!)

In Marion County v. Kirk, we have a case where the petitioner below screws it up, the trial court gets it right the wrong way, the majority opinion on review completely misses the right result and the dissent gets the right result with incomplete reasoning (albeit not helped by the absence of the petitioner/appellee).

Rule 1: in quasi-judicial matters, if the tribunal does not provide notice (e.g. mailing notice of a hearing) in a manner that comports with the governing statute/ordinance or due process, what is your remedy?

Answer:
1. If you have actual notice and appear that the hearing, you get no relief UNLESS you ask for a continuance and it is unreasonably denied, and then you have to raise this via certiorari as a procedural due process violation UNLESS the statute or ordinance provides another remedy.
2. If you do not get the notice and therefore don't appear, you can file a declaratory action to declare the decision void/ultra vires if it violates a statute/ordinance.
3. If you do not get notice and don't appear, AND the action deprives you of a property right (like it's your property being assessed, or downzoned, or code enforced), you have a right to declaratory relief for violations of due process under the Florida Constitution, as well as to declare the action void. You may have a right to an action under42 U.S.C. 1983, depending on just what they did -- like if they sold your property at a tax sale, or imposed a code enforcement lien, or gassed your dog, or lost your son's body, you have a property right protected by the 14th amendment in the 11th Circuit, but if they merely downzoned you, or denied a development permit, etc., you don't.

So, let's all get together -- if you're claiming lack of notice, you're not limited to cert review of a quasi-judicial decision because the violation not only made the decision invalid (as a violation of due process or jurisdiction), but because the violation also left you unable to protect your rights at the hearing.

Here, we don't know if the petitioner/appellee showed up, but she filed a petition for mandamus (probably to get around the 30 day cert window) claiming that County didn't sent required notices. She demands as relief that the County be ordered to issue notices (again) and hear the action again (ah, but what about the original decision? does renoticing the hearing vacate it? I think not!).

She properly gets an evidentiary hearing, at which the County doesn't quite put on sufficient evidence to actually prove that they sent the notice, and the court finds for her. At which point the County goes "oh, ****" and asks for rehearing, gets it, and brings in affidavits (not witnesses) that the mailing was done. The court rejects the affidavits, enters the writ, and the appeal (without the petitioner participating) proceeds.

The majority ends up holding (a) that because this was quasi-judicial, cert was the remedy and the court was wrong to entertain mandamus; (b) that the court erred in not considering the affidavits, and (c) -- and I really, really, really can't believe this -- that the court erred in not respecting the "presumption of routine practice" under 90.406 of the evidence code, as conclusive that the mailing was done once it was delivered to the group that mails things for the County.

First, as noted above, when you complain about failure to comply with notice requirements, you aren't limited to cert unless you appear. The court's failure to get this means that they just issued an opinion that appears to negate the longstanding rule. I can only assume that the County and developer attorneys sold the court a load of bull when they realized that the petitioner wasn't appearing during the appeal, and probably are giggling about throwing this monkey wrench into the established law.

Moreover, the whole "presumption" rule seems ridiculous as against testimony that the notice wasn't received. I don't think that the court should have/could have relied on affidavits to counter sworn testimony taken under oath and subject to cross examination. If the County blew their case, they should have been asking for rehearing and the right to present the witnesses. And the court should have granted that, and if the affidavit testimony held up, probably should have dismissed the petition - or the dec action if the court had properly reformed the filing.

Which gets us to the dissent. Judge Griffin nails it that the petitioner was not limited to certiorari. She doesn't hit the nail on the head on how the matter should have been reformed -but does end up with the right analysis:

Finally, the question whether this was properly a mandamus proceeding does
not make this decision reversible. The County did have a mandatory, ministerial duty to provide notice to all property owners within 300 feet and to conduct a hearing only after proper notice was given. Since the assertedly improperly noticed hearing had already been conducted, arguably another writ, such as prohibition, would have been more apt. One thing is for sure, however, this did not have to be brought as a certiorari review of the County’s approval of the special use permit. Cf. Bhoola v. City of St. Augustine Beach, 588 So. 2d 666 (Fla. 5th DCA 1991). Consistent with the provisions of Florida Rule of Civil Procedure 1.630 and Florida Rule of Appellate Procedure 9.040(c), the correct denomination of the writ is
not essential. Courts should, and indeed, this court generally does, treat
the application for any extraordinary writ as what it ought to be.

It does appear that a more correct result would have been reached if the
trial judge had exercised his discretion to grant rehearing and had taken further evidence on the County’s procedure for mailing of notice and Ms. Kirk’s actual knowledge of the hearing, but this is a decision allocated to the trial court, not to us.

I am really dreading the day that I see this case cited for the proposition that you can't challenge the failure to provide required notice with an original action, or explaining to a new associate (or just a newer land use lawyer) why the law doesn't restrict you to cert under these facts.

One more piece of evidence for why we really really need a general law governing the review of land use decisions that provides appellate relief (not cert) and the right to issue corrective orders.

Fifth District: Volusia County Must Demonstrate Historic Use of Beach

In Trepanier et al v. County of Volusia, the Fifth District got into a veritable scrum of overlapping issues involving the County's assertion of the right to occupy platted lots. That are beachfront. It overturned a summary judgment on behalf of the County for most of the counts, but basically blew that takings issue (more below) and upheld the lower court.

A bunch of folks have beach front lots, with a seawall back into the property. Used to be lots of beach in front of the platted lots, but hurricanes resulted in what appears to be avulsion (not gradual erosion, but sudden loss of land).

The County then decided that it would help people invade the lots. It staked out areas up to the dune line (way past the high water mark), and delineated areas in which people could drive and park that were within the platted area of the lots. This appears to have been the veritable straw, as the various landowners seem to have been accepting of some give and take with the public for crossing or sitting on the beach, but didn't like the cars.

Suit ensues, with claims of trespass and taking, as well as requests for declaratory and injunctive relief.

The County not only claims that the entire beach in Volusia County (more on the definition) is open to the use and access of the public, but that cars can use it, too. Yes, Tona-Roma returns, with a vengeance (montazuma's vengence). The County demands that the court establish an easement across the landowners' lots up to the seawall or line of permanent vegetation. Not only that, but the County actually counter claims against the homeowners for some ancient cause called "perpresture" -- which the court explains in a footnote is "[a]n encroachment upon public rights and easements by appropriation to private use of that which belongs to the public." Yep, the County claimed that, by asserting that they still owned their lots and had any right to exclude the public (or at least its cars), the homeowners were stealing from the public.

Lenin would be so proud to know that Volusia County agrees that property is theft. (remember the right to exclude, core stick in that bundle?) On the County's motion for summary judgment, the circuit court also apparently pulled out a copy of "What is to Be Done?" along with its Southern Reporter. In what sounds like excrutiating detail, the circuit court turned effective title much of the lots to the County, ruling that (quoting from the 5th DCA opinion):

This court declares that the defendant, COUNTY OF VOLUSIA, on behalf of the
public, holds a superior claim to possession and use of the beach landward of
the mean low water mark of the Atlantic Ocean to the place where there is marked change in material or physiographic form, or to the line of permanent vegetation in accordance with the definition set forth in Fla. Stat. section 161.54(3) (2004).

Plaintiffs are permanently enjoined from impeding public access to the beach or from acting in any manner inconsistent with the free use of the beach by the public,
including access by motor vehicle, subject to the regulatory power of the County of Volusia.

Ok, so first the Court declares that the County actually owns the real rights to the beach for the public (yeah, Lenin!) - for what else is a "superior claim to possession and use"? The court then declares that the area of the beach is defined not by common law, but by Florida Statutes. It enjoins the landowners from acting "in any manner inconsistent with the free use of the beach by the public," which appears to me to mean that the public has a right to set up a tent in front of the Plaintiffs lots to enjoy the beach, but if the Plaintiffs do the same thing they are in contempt.

The circuit court does a handwave to Tona-Rama, but completely bastardizes the fact-specific holding that case. For those who don't read all the obscure land use cases, Tona-Rama held that (in very fact specific circumstances) parts of the beach at Daytona Beach around the pier had been subject to public use for so long that a prescriptive easement had been established, one that prevented the owner of the pier from developing on parts of the beach that had been essentially the public beach. The circuit court reached around Tona-Rama and added a dose of its own public policy to hold that the beaches throughout Volusia County (again, defined by the statute) are public as a matter of law, and open to vehicles.

It also finds prescriptive use rights based on (uncited) open and historic use of the beach.

Oh, and it doesn't stop.

The circuit court also agrees with the County that whenever the beach changes landward, the public's rights automatically migrate with it (no review whatsoever of whether changes are avulsion or erosion - too petty a detail to consider when homeowners are stealing the beach).

The Fifth District, to its credit, puts most of this to a screeching halt. It wants to see a factual record on whether this area of the beach was historically used by cars, and for what part of the beach (like, did people ever drive within the platted lots?). The Fifth also wants findings on the avulsion/erosion issue, and whether the use of the beach was permissive (which doesn't create prescription) versus adverse.

In other words, the Fifth is going to require fairly strict application of the common law principles that underlie Tona-Rama and not simply wink at judicial expropriation of the beach through some newly minted rule of law. The opinion deals with the critical Tona-Rama case this way:

Although we recognize that the issue is far from clear, we conclude, both from
our reading of the supreme court's various opinions in Tona-Rama and from reading the underlying decision of the First District Court of Appeal in City of Daytona Beach v. Tona-Rama, Inc., 271 So. 2d 765 (Fla. 1st DCA 1972), that the intent of the supreme court was to declare the right of customary use in the public only for the area of beach at issue in that case, for which it had an extensive factual record of customary public use. Indeed, the decision of the First District Court of Appeal was explicit in this regard, as it necessarily had to be, because the remedy that court embraced was prescriptive easement.

On the question of whether the right to use the beach above the high water line (if it were established) also moved, the court held that the avulsion/erosion issue had to be addressed. It went on to hold:

Certainly, if it can be shown that, by custom, use of the beach by the public as a thoroughfare has moved seaward and landward onto Appellant's property with the movement of the mean high water line, that public right is inviolate. However, it is not evident, if customary use of a beach is made impossible by the landward shift of the mean high water line, that the areas subject to the public right by custom would move landward with it to preserve public use on private property that previously was not subject to the public's customary right of use.

The Fifth also noted that the entire issue is going to require resolution by the Florida Supreme Court: "We recognize that a question as important as the meaning and scope of Tona-Rama and the migration of the public's customary right to use of the beach will ultimately have to be determined by the Supreme Court of Florida, not this court. We believe, however, that this case should not go to the high court until the evidentiary issues we refer to have been developed in the trial court. "

After all this good work, the district court blows the final act when it upholds the circuit court's dismissal of the landowners' takings claims:

Finally, we agree with the trial court's analysis of the "takings" issue. If the law
recognizes that the public has a customary right to drive and park on Appellants'
property as an adjunct of its right to other recreational uses of that property, as
recognized in Tona-Rama, then no takings claim can be made out.

The problem should be obvious: if the circuit court finds that the public does not have a customary right to drive on these lots, then the County's actions in staking out parts of the Plaintiff's lots and letting people park and drive on them is a taking! Remember Loretto? One of the remaining "per se" takings claims - significant interference with the right to exclude?

The problem with this mistake (and you can understand it in context) is that it implies that there isn't a taking or recompense for the plaintiffs even if they win and the County refuses to stop. Very sad that in order to fix this giant hole in an otherwise smart and thoughtful decision, the landowners might have to ask the supreme court to review it.

Maybe the landowners should simply start putting out calthrops or other barriers to the cars and let the county sue them and move for a temporary injunction to stop them. Would be a VERY interesting case at that point regarding who's rights are initially recognized - the fee owner seised under the common law or the invading government, claiming on behalf of the public that the landowners "seisin" constitutes a seizure.

In any case - VERY important stuff and at least some glimmer that the rule of law and cooler heads sometimes prevail. Lenin may be weeping, but Locke and Blackstone smile.

What is eDiscovery? Expert Florida

eDiscovery describes the exchange and disclosure of electronically stored information (ESI). In December 2006 the Federal Rules of Civil Procedure were changed to include specific requirements and guidelines regarding how to handle eDiscovery.

Since more than 90% of documents are now created electronically, and less than 30% of those electronic documents are ever converted to paper, these new rules are likely to have an impact on how everyone conducts business. The new rules on preserving ESI make having an eDiscovery complaint document retention policy more important than ever before. An expert may be needed to search terabytes of data that litigants may have.

eDiscovery Lawyer Attorney Tampa Florida

3d DCA - Equitable Estoppel Protects 25 Year Old Encroaching Addition

In a case that demonstrates why we really need specialized land use courts in this state, the 3d DCA issued an opinion that (correctly, in my view) holds that equitable estoppel prevents the County from code enforcement against a family room added 25 years ago, which now (and maybe then) violates rear setback requirements. The case is Castro v. Miami-Dade.

The facts are pretty clear, though the law isn't. Since 1983, the Castros have owned a townhouse that was built in 1980 . The townhouse came with an addition in the form of a family room that comes to about 5 feet from the rear setback. The County granted building permits to the prior owner in 1980 or '81 to build the addition, and to the Castros in 1993 to reroof the family room after it was damaged by Hurricane Andrew.

The law is where this case becomes problematic. It "appears" that the "older" zoning required 14 foot rear setbacks; everyone seems to assume that the addition had to have violated them. No one appears to have looked at the zoning resolution/special exceptions that permitted the entire development to see if they provided different setbacks. Then, in 2003, the County adopted new setback requirements of 25 feet.

An Code Enforcement inspector cited the Castros for building in violation of the Code. When they proved that the addition had proper permits, and the zoning staff recommended no enforcement, he went back and charged them with "maintaining" the family room illegally in violation of the NEW 2003 zoning regulations. The hearing examiner agreed and found them in violation, and the Castros appealed.

The circuit court (without a written majority opinion, apparently) concluded that the Castros couldn't claim equitable estoppel because it appeared that the family room was always illegal. The 3d DCA reversed, finding that the circuit court departed from the essential requirements of law in refusing to apply equitable estoppel.

This opinion was written by Judge Rothenberg, who wrote the opinion affirming the denial of cert by the circuit court without an order to show cause where she found that the petition could not establish "undue hardship" in Fine v. Coral Gables, and who dissented in the "truck" case, Kuven v. Coral Gables. I want to state that I think Judge Rothenberg is a good judge and is trying hard to figure out the right way to handle these cases, and is relying on good law. I also want to say that her opinions (in my opinion) demonstrate how and why land uses cases are so hard, and why they need a special set of courts.

The problem in this case is the range of complicating issues that simply aren't discussed at all, because (clearly) neither the circuit court nor the district court understands them.

• Exactly how do Miami-Dade's "nonconforming" building regulations work? The district court opinion appears to indicate that they thought that the 2003 code provided no "grandfathering" at all. Was that the case, or was the problem that the County maintains that the structure could not be grandfathered because any permits granted to it were granted illegally?
• There is NO discussion in the opinion of how the "illegality" exception to vested rights/equitable estoppel should or should not be applied. Instead, the opinion goes straight to fairness. Fine, insofar as it goes, but as any kind of precedent, the unanswered questions may swallow the holding.
• Is the court holding that local governments are also estopped from claiming illegality as a defense at some point in the future when they have issued building permits? Is there some presumption that the government acted legally and that there was some earlier interpretation of the earlier zoning regulations that has to be presumed unless conclusively disputed? If I cite this case, I will say that it stands for that proposition, but the opinion doesn't say this clearly.

Let's be clear: I think the basis outcome is right. For the county to come back almost 30 years after it granted a building permit and claim that it had to be illegal is vile, and it puts the burden unfairly on the homeowner.

I see this frequently now: for example, local governments are running around and looking at ponds or ditches that may have been installed 30 or 40 years ago prior to local or state regulation and citing them with code enforcement violations for not having permits. They then try to make the landowner prove that the ditch/pond was permitted when it might have be installed prior to permitting. Unless the landowner can find aerials or some other evidence that the ditch/pond was there prior to the regulations, the landowner is fined for violating the ordinance, even if there is proof that the pond existed for years before the landowner bought the property.

Judge Rothenberg and the other members of the panel clearly see the fairness problem, but because they don't know zoning and land use, the opinion doesn't clarify the law the way it should. We need judges that "get" land use hearing land use cases.

Also from the Supremes: Updated Test on Special Acts

In a fairly unusual (at least in local government law) occurrence, the Florida Supreme Court also issued two cases in one day that dealt with tests for whether a statute is a "local law" or "speical act" and subject to the special processes for such laws. The new (well, actually, affirmed) test: if the "class" of localities or entities regulated by the statute is not "open" is based on whether there is a realistic or reasonable chance that other localities or entities will enter the class.

The first case was Fla Dept of Bus and Prof Reg. v Gulfstream Park Racing Ass'n, which dealt with an act that involved televised (or rebroadcast) racing and betting on such races. The statute regulated situations where there were 3 tracks within 25 miles of each other (which applied only to a certain area in Broward and Dade counties and to 3 particular tracks including Gulfstream). However, the state argued that because of some bizarre provision in another statute, it might be possible to establish one or more new quarter horse racing tracks within 25 miles of one another, and therefore it was possible that the restriction could apply to other localities and entities in the future.

The First DCA rejected "mere possibility" as a test and concluded that the
proper test was whether there is a reasonable possibility that other entities
would be subject to the class. The Supreme Court agreed, writing
that

We conclude now that we made explicit in that opinion what was implicit in our prior decisions, namely that any determination of possible future applications of a statute must be done by a realistic and reasonable assessment. Otherwise, such an assessment would essentially be standardless, a situation we do not believe to be consistent with judicial review and enforcement of article III, section 10

The Supreme Court therefore agreed with the First DCA that the statute was a local or special law, and invalid because it had not been properly adopted.

A similar fate befell a statute attempting to exempt a particular hospital transaction from going through Certificate of Need (CoN) permitting. In St.
Vincents' Medical Center v. Memorial Healthcare Group, the court found that the statute, while purporting to be "open," included standards and timing that only one hospital or facility could reasonably be expected to meet.

The quote in St. Vincents', while lengthy, is probably the one that will be used in the future:

St. Vincent’s does not dispute that the statute’s provisions appear tailored
to fit its plans to establish a new hospital. Rather, St. Vincent’s challenges
the district court’s invocation of a “reasonable possibility” standard rather
than a mere possibility standard in any assessment of whether others may qualify
under the statute’s exemption. However, as we recently held in Florida
Department of Business & Professional Regulation v. Gulfstream Park Racing
Ass’n, Nos. SC05-2130 & SC05-2131 (Fla. Sept. 6, 2007), “a review of our
case law and the underlying purpose behind the constitutional restrictions
contained in article III, section 10, supports the reasonableness standard used
by the First District and its application to this case.” Slip op. at 12.

In Gulfstream Park, we confronted a statute that prohibited a racetrack from
selling broadcasts within its market area if it is within twenty-five miles of
at least two other racetracks. Id. at 3. While the parties agreed that, at the
time of the statute’s enactment, it applied only to one particular part of the
state, they differed as to whether the statute was open to application to other
areas of the state in the future. Id. at 11. As we held in that case,

In essence, we must choose between a wholly speculative evaluation
of the possibility of the future application of a statute as advanced by the
appellants and the practical reasonableness standard articulated by the
district court. While our own case law has been largely silent on this
issue, an examination of the analysis applied in each case implicitly
suggests that we ourselves were applying a reasonableness and realistic
possibility standard in assessing a statute’s potential future operation.
Nowhere in any of our decisions have we indicated that a wholly speculative or unreasonable potential would satisfy the constitutional mandate of article III, section 10.

Id. at 12. Accordingly, we agreed with the First District’s conclusion in that case, finding that there was no reasonable possibility that the statute would ever apply to other parts of the state. Id. at 13.

While the courts should never second-guess the Legislature about the policy decisions contained within a challenged statute, we are nevertheless obligated to give meaningful effect to the notice procedures for special laws mandated by
Florida’s Constitution. Consistent with this obligation we have emphasized in
Gulfstream Park that whether a law has general application turns on a
determination of whether its application to others is reasonable or practical,
not theoretical or speculative. The question of general application is not to be
guided by irrational speculation that anything is possible. Id. at 13 (“[A]ny
determination of possible future applications of a statute must be done by a
realistic and reasonable assessment. Otherwise, such an assessment would
essentially be standardless, a situation we do not believe to be consistent with
judicial review and enforcement of article III, section 10.”).

I'm not sure how many of these "greased" statutes get passed every year; I'm guessing its a fair number. There's a much more clear basis to challenge them now, and a reasonable threshold for proof.

Fla Supremes Make REALLY Sure We'll Have Lots of Special Assessments - No Bonds for TIFs w/out Referendum

In my "local government law" class in law school - and in studying for the bar - I learned that you can't pledge ad valorem tax revenues for bonds without a referendum. I also learned the exception - you could pledge TIF revenues or combinations of revenues, so long as the core "ad valorem" taxing power was not implicated in the pledge.

Not any more. In Strand v. Escambia County, the Florida Supreme Court drove a stake into the heart of the Miami Beach case that established the "TIF exception" and loosed an arrow (not yet struck) into the "combination of revenues" exception established in the Sarasota County School Board case.

Not surprisingly, a local government had taken the TIF exception (carved out for CRA type improvements) to an extreme, funding a major road improvement ($135M) for Perdido Key solely from TIF-backed bonds. The TIF "area" is the "Southwest Escambia County Improvement District"-- which does NOT appear anywhere in the opinion as an MSTU/MSBU; instead it appears that the County tried to use its home rule powers to simply create a TIF-type area from whole cloth to segregate general-fund ad valorem tax dollars into the bond payments. [I'm sure I'll here from the principles if I've got this wrong or if the Court missed it.] The Court invalidated the bonds as being in violation of Article VII, s. 12.

The Court did a very scholarly job of reviewing the bad history of ad valorem-backed bonds in Florida and the two main "exception" cases. It also discussed (cogently) the Volusia County case that held that the County couldn't pledge a hodge podge of non-ad volorem revenues to back a bond if it appeared that the county might have to raise ad valorem taxes to replace the pledged revenues. The Court concluded that the Miami Beach and Sarasota School Board cases went too far and reeled them back in.

So, in the span of two weeks we find out that local governments get huge discretion to issue bonds backed by special assessments and have little or no discretion to issue bonds backed by ANY kind of ad valorem revenues. Two results are pretty much automatic:

1) HEELLLOOOO MSTUs and Special Districts with special assessments. I'm guessing we'll see lots and lots of these because its the only way left to raise funds to pay for infrastructure.

[Well, maybe we won't see so many in the short run. After over 25 years of Republican preaching about "no new taxes" and government waste, the citizenry thinks that it can get better roads and other infrastructure for free. It's all new development's fault, just use impact fees to do it, and if they don't work, screw around with concurrency to create moratoria and then make them pay for everything just to be able to do anything. In that climate, we probably won't see cities and counties establishing responsible ways to pay for infrastructure until they lose a few major cases.]

2) Bye, bye CRAs!!! No bonding for TIF revenues from CRAs, so why bother - straight into special assessment districts. First they lose the power to condemn for redevelopment, and now they lose the ability to bond TIF dollars - the two useful functions of CRAs are now pretty much toast.