2d Makes the Vanderbilt Shores Case Worse on Remand

Back in November, the 2d DCA issued this opinion after rehearing in the Vanderbilt Shores case I blogged back in April. I haven't blogged it yet because, frankly, the result is just confusing and depressing.



The court reissued its earlier opinion and then tacked on a paragraph that held that because the plaintiffs had not sought a temporary injunction, they were barred from pursuing their claims and the court should dismiss the case with prejudice on remand. It cited Medical Arts, Inc. v. Rohrbaugh 293 So.2d 366 (Fla. 4th DCA 1974) as support for this proposition.



Medical Arts dismissed an injunction and dec action in a situation where neighbors waited for 90 days after construction had begun (and in fact had almost ended) before bringing their action. The decision turns on an "unclean hands" theory - that the plaintiffs sat on their hands and let the conduct continue without fair notice that the defendant was at risk. Compare the situation in Shidel, where there was a letter to the developer putting it on notice that an injunction would be sought.



The problem is that in this case, the 2d cites NO facts from the record that would cause this eminently fair approach to apply. Instead, there's a line to the effect that the failure to seek a temporary injunction is fatal to their cause, leaving the impression that if you can't front the dollars to support the injunction bond for a temporary injunction, you can't press an injunction case. That's not supported by Medical Arts, Shidel or any number of other cases.



And its worse in the context of the rest of the reissued opinion. The court ruled that the circuit court and the county were wrong in interpreting the plain language of the zoning code, and that the building was in violation of the setback provisions. Score one for the proposition (Dixon and other cases as well) that courts should NOT pay deference to agency interpretations where the meaning of the regulation is not ambiguous.



So the building is clearly non-conforming.



But the court held that the circuit court correctly dismissed the suit (and now should with prejudice) for failure to exhaust administrative remedies. As I wrote before, the idea that you have to go to an 'administrative determination' in order to appeal or collaterally attack an interpretation that's embedded in a development order is, well, loopy. First, the administrative determination route does not result in an enforcement action, just an interpretation. Enforcement is purely discretionary with the County officials. So administrative determinations are not a remedy against a decision that has already been taken.



OTOH - we also don't know from this opinion exactly how long the litigation and conflict had begun. We don't know what site/development plan approvals were issued prior to the building permits that might have provided a route to challenging the illegal setbacks, and whether the neighbors sat on their hands during such proceedings. So we don't know whether there were reasons not provided in the opinion that the neighbors didn't avail themselves of other administrative routes of review.



But this is a big mess regardless. You now have a development that has been judicially determined to be non-conforming and in fact illegally constructed. Maybe there's another party that can attack it who's not bound by this decision. You also have a very sloppy holding on exhaustion that could be used against almost anyone, developer or neighbor alike. And you have an opinion that flies in the face of years of cases that hold that zoning rules CAN be enforced through injunction by a neighbor who can show special damages.



And perhaps worse, you have a situation where the result may have been proper and just, but the opinion contains neither the law nor the facts to support it.

Settlement agreements regarding code/zoning enforcement are enforceable and supercede claims covered

In this opinon, issued back on November 24, the 4th DCA held that it was appropriate to enforce a settlement agreement (or, rather, a violation thereof) by enjoining the continued use of a property in violation of the terms of the agreement.



The settlement agreement had been entered to resolve earlier litigation when the City of Delray Beach tried to enforce a site plan requirement for the particular use of the property that had been adopted after the use had been well established. While the property owner claimed grandfathering/non-conforming use rights, the City didn't respect those and started enforcement proceedings. These were then dismissed with prejudice in a settlement agreement, as were the property owner's counterclaims including the "non-conforming use" defense.



When there were later disagreement (extensive and long-running, based on the opinion) regarding whether the property owner had complied or was complying, the City sued to enforce the settlement agreement and to enjoin the continued use of the property for the use in question. The trial court granted and 4th approved. The court specifically held that the defense that the use should be considered grandfathered was lost by the adoption of the settlement agreement.



The moral: be careful about what you agree to in a settlement, because you're going to be bound to it.

1st DCA flaunts Supremes to create loophole in prohibition on special assessments for law enforcement purposes

The First DCA took it upon itself to create a new rule for law enforcement special assessments in this opinion, issued on January 5. Even though the Florida Supreme Court has clearly held that law enforcement services do NOT provide a special benefit to property and therefore should not be funded through special exceptions, the 1st upheld an Escambia County special assessment for law enforcement within an "MSBU" because the area is leased from the County and the lands are not subject to ad valorem taxes. A strong dissent clearly hit the law right.



So this (activist?) courts decides that if the property doesn't pay enough taxes to cover a service, the local government can make it up through special assessments? This logic was rejected in the Collier County case, where the imaginative approach was to assess property for which a new CO was issued after January 1 of any year, since the improved value of the property is not taxed in that first year. The simple fact that a property receives general governmental services (like police protection) without having to pay ad valorem taxes does NOT create an exception to the benefit rule.



The court cited the well-trodden rule that in determining whether a special assessment benefits property, "courts are required to give deference to the taxing authority's determination .. . [which] must be upheld unless the determination is 'palpably arbitrary'." citing Pembroke Pines.



The problem here is that this traditional rule was established to avoid judicial intervention in questions of whether, for example, a collector street that served but did not abut property was benefited. Using it as a shield for the basic determination of what services can or cannot be funded by special assessments is just wrong.



The Courts should add a 3d part to the traditional 2 part test (whether the property is benefited; whether the costs are properly apportioned) to included whether the facility or service benefits property generally, and this test should give no deference to the local legislative determination. The first test then becomes whether a particular property is benefited by the particular improvement or improvements to be funded; this could use the deferential rule.



In the absence of such an approach, local government will simply continue to push and push on the barriers of the proper use of special assessments to avoid actually having to identify general tax needs and issues. One must be sympathetic with the plight of rural counties, where property values are so low that even levying the full 10 mills for local government uses is insufficient to fund basic services. But the proper response is to address our tax assessment and distribution systems overall, not to flaunt the constitution's limits on local taxing authority by destroying the recognized limits on the proper use of special assessments.

Standards vs Standing for Injunctions

In this opinion, released on December 30, the 5th DCA held that a neighbor seeking a temporary injunction against a development order (or, in this case, the process involved) does not need to show "special damages" as part of the test for entitlement to the injunction.



The court correctly distinguished the "special damages" requirement for standing from the irrepparable harm test needed to qualify for the injunction, and reversed the trial court, who had dismissed the case with prejudice for failure to show special damages. Special damages, of course, require the demonstration that the plaintiff will suffer a harm different from those of the community in general.



Here's where we get to an interesting problem. The case involved a citizen trying to get an injunction against the issuance of a development order based, not on the illegality of the order (e.g. failure to meet the standards), but based on the failure to provide procedural due process in the City's issuance of a site plan. So what standard should the 5th directed the trial court to use on the issue of standing to bring the injunction action, as opposed to



OK, so if the Plaintiff wanted to get an injunction against the site plan itself, he would have to show special damages to maintain standing. While the cases go both ways, neighbors generally should be able to show special damages if the underlying violation goes to some interest that would be protected (e.g. setbacks if the plaintiff is adjacent, traffic or configuration or failure to provide required landscaping if you're in the immediate vicinity, etc.). That is, the "zone of protection/interest" test used in APA type cases should be applied in determining whether the plaintiff is harmed in a way that is different from the community. (this does require some problematic assessments of what kinds of harms - and to whom - zoning regulations are designed to protect, but we'll take that up another time).



But where the problem is the process, you run into all kinds of problems. Suppose the action is quasi-judicial (site plan approval would be) and the problem is that the local rules don't allow the neighbors enough participation (or notice) to protect their rights. Cert is an insufficient remedy because the violation is one that would prevent the plaintiff from establishing on the record the evidence needed to establish both standing and the core violation. In such a circumstance, a dec/injunction action is appropriate. Moreover, if the violation is not specific to a single proceeding, there is a signficant public interest to protect that should cause the court to lean towards permitting the suit.



But now we run into the standing problem - what harm should a citizen/neighbor have to show in order to maintain an action to prevent action on a development order because the process is bad? If the citizen wouldn't have standing to contest the outcome if the process were'nt bad, should the case be dismissed? If you say yes, then you require a citizen to show both a substantive violation and special damages in order to get a procedural violation addressed - this just seems way too restrictive. OTOH, if you let anyone stop any individual development order based on such a claim without showing special damages, you open the door to the kinds of frivoulous or harassing suits that the special damages rule is intended to prevent.



Perhaps the "right" answer is that if a local government employs an improper process, anyone should be able to maintain a facial dec/injunction action against it. But we've seen time and time again that the courts won't allow this absent a specific case - facial challenges to process tend to be dismissed on ripeness grounds, because the courts want to see a real controvesy and give the government the chance to interpret the legislation/regulation so as to make it valid.



Bottom line: yet another situation where the absence of a set of uniform minimum standards for the conduct and review of local administrative hearings is creating difficult, time consuming and expensive litigation that confuses rather than clarifies the rights of all involved.



Practice tips: 1) exhaust your remedies (more on that later); 2) figure out how to plead special damages whenever possible, even if you have to be creative; and 3) where processes are screwed up, try to get objections, etc. into the record so that the issue can be addressed in cert review.

Foreseeable flooding can be tried as demages in a taking of other parts of propery

FDOT takes a parcel for a stormwater pipe.

Landowner claims that based on the engineering, factility will cause flood damage to the remainder.

FDOT - can't bring those damages as part of the taking! Landowner must wait and file inverse condemnation damage claim later, when (if) flooding occurs.

Trial Court - we'll buy FDOT argument.

5th DCA - who are you kidding? Damages to the remainder are cognizable in taking of part. Here's the opinion.



Seems like a basic point to me, but creates some interesting potential res judicata/law of the case problems, regardless of how this is litigated. Issue (for FDOT) is that landowner gets multiple bites: at the condemnation, where LO can try to prove damages from foreseeable future flooding, then (if this doesn't work), later if flooding actually occurs.

"may" language in delegation almost per-se unconstitutional

In the 3d DCA's Omnipoint I opinion, 811 So.2d 767 (3d DCA 2002) , Judge Fletcher determined that Dade County's "unusual use" variance language was unconstitutional based on the subjective criteria provided. That part of the opinion was invalidated by the Florida Supremes in Omnipoint II - 863 So. 2d 165 (Fla. 2003) (3d shouldn't have taken up this argument on its own), and it was not addressed by the 3d on remand.



So the Omnipoint holding on the vagueness issue is largely a footnote, since the court didn't have the right to reach it. A number of folks have questioned it, given other decisions on the vagueness issue that permitted, well, really really subjective and vague delegations, even in a quasi-judicial context. In particular, in the land use context, we have Life Concepts v Harden, 562 So. 2d 726 (Fla. 5th DCA 1990), Alachua v. Eagle's Nest, and the most recent Cap's on the Water Inc. v St John's County, 847 So.2d 507 (Fla. 5th DCA 1993).



The last case rejected a vagueness challenge involving a conditional use/special exception against a completely standardless delegation to grant special uses. The core delegation provided and the lower court opined:

Specifically, section 2.03.01- A, entitled "Limitations on Special Uses," provides: The Planning and Zoning Agency may adopt conditions on any Special Use approval; any such conditions shall be stated in the final order of the Planning and Zoning Agency granting the Special Use. The ordinance places no limits on the discretion of the Planning and Zoning Agency (the "PZA") to adopt conditions for the special use approval. Read alone, this provision would not pass constitutional muster because the PZA could arbitrarily impose on any applicant any condition that it chose to impose.

The District Court went to the intent section, and upheld the ordinance based on this DEFINITION of the special use:

Special Use: Means a Use that would not be appropriate generally or without restriction throughout a zoning division or district but which if controlled as to number, area, location, or in relation to the neighborhood, would promote the

public health, safety, welfare, morals, order, comfort, convenience, appearance, prosperity, or the general welfare. Such Uses may be permissible in a zoning classification or district upon the granting of a Special Use and meeting the requirements of this Code.

The court cited Life Concepts as approving this kind of approach and language. So the Omnipoint I decision ran contrary to the trend (however wrong the trend may be).



In the last couple of months, however, two decisions may re-establish the vagueness doctrine as a meaningful requirement of delegatory ordinances.



The first is the Florida Supreme Court's decision in Bush v Schiavo, issued Sept 23. and available here. The decision has one of the best overall reviews of the entire vagueness doctrine and the separation of powers you'll ever read. It then agrees with the circuit court's determination that the statute unconstitutionally vested legislative power with the Governor:

In this case, the circuit court found that chapter 2003-418 contains no

guidelines or standards that “would serve to limit the Governor from exercising

completely unrestricted discretion in applying the law to” those who fall within

its terms. The circuit court explained:



The terms of the Act affirmatively confirm the discretionary power

conferred upon the Governor. He is given the “authority to issue a one-time stay

to prevent the withholding of nutrition and hydration from a patient” under

certain circumstances but, he is not required to do so. Likewise, the act provides that the Governor “may lift the stay authorized under this act at any time. The Governor may revoke the stay upon a finding that a change in the condition of the patient warrants revocation.” (Emphasis added). In both instances there is nothing to provide the Governor with any direction or guidelines for the exercise of this delegated authority. The Act does not suggest what constitutes “a change in condition of the patient” that could “warrant revocation.” Even when such an undefined “change” occurs, the Governor is not compelled to act. The Act confers upon the Governor the unfettered discretion to determine what the terms of the Act mean and when, or if, he may act under it.



We agree with this analysis. In enacting chapter 2003-418, the

Legislature failed to provide any standards by which the Governor should

determine whether, in any given case, a stay should be issued and how long a

stay should remain in effect. Further, the Legislature has failed to provide any

criteria for lifting the stay. This absolute, unfettered discretion to decide whether to issue and then when to lift a stay makes the Governor’s decision virtually unreviewable.

A few weeks later, in this opinion in Dep't of State v. Martin, the 1st DCA struck s. 101.253(2) of the elections act, under which the Secretary of State had refused to remove a candidate's name from the ballot when the candidate withdrew in favor of another. The critical provision states "The Department of State may in its discretion allow such a candidate to withdraw . . . " The Circuit Court found that this was improper and the 1st DCA agreed.



Both opinions cited the following language from Lewis v. Bank of Pasco County, 346 SO. 2d 53, 55 (Fla. 1977):

The legal principle guiding the Circuit Judge in this case and which is

dispositive of the issue under consideration is so well knows as to be deemed

"hornbook" law. This Court has held in a long and unvaried line of cases

that statutes granting power to administrative agencies must clearly announce

adequate standards to guide the agencies in the execution of the powers

delegated. The statute must so clearly define the power delegated that the

administrative agency is precluded from acting through whim, showing favoritism,

or exercising unbridled discretion.

Under these decisions, local ordinances which provide that a local actor or board "may" grant variances or other permits if criteria are met are flat-out invalid. Either they must be interpreted as requiring the action or the entire provision must be struck. Clearly, the language upheld in Cap's doesn't meet this test, and the earlier decisions in Life Concepts and Eagle's Nest should be viewed as having been over-ruled by implication.



Moreover, the recent decisions in Schiavo and Martin should revive the entire notion of and demand for clear and unambiguous standards in land use ordinances. Here are some particular targets:

• Special use/condition use or variance procedures like the ones at issue in Omnipoint and Caps. Where the standards are "in the public interest" or "excessively burden," etc., the ordinances should be struck.
• Comprehensive plan provisions like Goals providing for "gradual and orderly growth" or the similar language that was upheld as a basis for denying a permit in the Eagles Nest case. This is a particular problem today because of the courts' liberal quotation of the Machado decision to apply all of the goals, objectives and policies of a local comprehensive plan to a development order, regardless of how vague (people forget that Machado dealt with review of a legislative rezoning rather than and administrative/quasi-judicial action).

So maybe Judge Fletcher had the right analysis of the ordinance in Omnipoint - but in the wrong case.

Dedication stating: "60 FT EASEMENT RESERVED FOR FUTURE ROAD" is ambiguous!

Every once in a while, you get the feeling that there MUST be more going on than meets the eye. But in an opinion reviewing a grant of summary judgment, that's usually not the case.



In this opinion, released last week, the 5th DCA ruled that the words "reserved for future road" on a street easement depicted plat are ambiguous as to whether the easement so indicated was intended for public dedication in a plat that dedicated all easements in the plat to the public. It held that a trial court improperly granted summary judgment in favor of Orange County in an inverse condemnation case claiming a right to compensation when the County actually used the reserved easement for expanding a road.



Let's get this right: it's not the developer claiming a taking under Dolan or Lucas . It's later landowners, who bought with title commitments indicating that the easements were burdens on the property claiming that there were, in fact, no easements for road purposes granted by the plat and accepted by the County.



OK, so just noting "street easement" would have been more clear - though I'm guessing that the surveyor/engineer described it as "reserved for future" to show that the developer wasn't being required to improve the street prior to dedication and acceptance. But I don't see the language as ambiguous.



And let's be clear - an area on a plat marked "easement reserved for future road" on a plat that dedicated all the easements to the public doesn't create any anticipation that it would only be used for a private road, or that it wouldn't be and wasn't accepted as part of the general acceptance under any of the dedication/acceptance cases that I've ever read.



There's some discussion that the term "reserved" might have been to keep a reverter - but the court rejected that interpretation. So if the easement wasn't to revert if not used, and it was accepted, where's the ambiguity?



There may be more to what's going on than what's in the opinion, but I simply fail to see what possible factual scenario could call the clear legal implication of these words into question; certainly none of the facts related in the opinion. I think the dissent in this case got it right.



What's more, I suspect that this opinion will trigger a whole spate of really obnoxious levels of review of plats by the legal departments of local governments, slowing up and adding unnecessary expense to what's already a process burdened down by many technicalities.



PRACTICE TIP: for all of use who review and/or prepare plats, be sure that not only is the dedication and acceptance language clear, but mark all areas to be dedicated clearly as easements/dedications along with the purpose - and avoid surplussage if at all possible.