Important if Confusing Administrative Appeal Standing Case

In Jupiter Inlet District v. Thibideaux, the 4th DCA issued an important but confusing ruling that confirmed that the District had standing to challenge a dock permit but did not have standing to challenge on appeal the DOAH Admininstrative Law Judge's determination that the dock violated a riparian line standard because it was not affected by that aspect of the dock.

Under the 4th DCA's intepretation of standing to challenge an administrative decision, a party with substantial interests that create standing to participate in the 120.57 formal hearing must demonstrate a substantial inteterst that is negatively affected for every ruling that the party wishes to challenge.

This seems to be a fairly radical extension of the LEAF and O'Connell cases (which have been discussed in earlier posts), and could create serious complications to challenges to jurisdiction or other procedural matters on appeal. Anyone who works the APA side of things should track how this case is used in the future.

DCA Creates a New Kind of Plan Policy

In Indian Trails Improvement District v. Dep't of Community Affairs, the 4th DCA upheld a final order holding that Palm Beach County's newly adopted plan policy to be "the" provider of waste and potable water in unincorporated areas was an "aspirational policy" that did not have to be supported by data and analysis.

The court provided no analysis of the implications of this "aspirational" policy. Of course, the statute makes NO provision for "aspirational policies" in a comprehensive plan. Development orders and infrastructure investments must be consistent with the entire plan. We'll see what happens the first time that the County attacks one of the other service providers' efforts to install infrastructure in the unincorporated county as inconsistent with its new, "aspirational" policy.

Why Cert Fails: You Have to Let the Agency Violate Your Rights Before Complaining

In Florida Department of Highways v. Tidey, the 4th DCA overturned the circuit court's grant of a writ of prohibition that prevented the Department from using its "hearing officers" to sit on Tidey's case. The circuit court heard the testimony of at least 4 attorneys who practice before the Department regarding pervasive, consistent, and orchestrated violations of due process before the Department's non-lawyer hearing officers.

No matter, says the District Court. Even if they are completely incompetent, prejudiced, and directed by their employer to conduct hearings in a manner that violate the rights of those before them, your only remedy is to go to the hearing before the unfair and incompetent hearing officer, wait for them to violate your rights, and try to raise your issues on a case and fact specific basis for later certiorari review. Don't forget to raise specific objections on the record, and don't forget to keep asking for continuances, even if the Department fails to produce suppoena'd records or the police officer fails to show up. In other words, every procedural trap will be laid before you and you must litigate your case perfectly in order to maintain any abilty to receive judicial review, while the Department can screw around with your case at will.

What it comes down to is that drivers in Florida face about the same due process challenges as accused terrorists held in Guantanamo Bay. Well, maybe more, 'cause our courts of appeal are on the state's side.

What's the link to land use? Well do you think the average city/county commissioner cares any more about due process than these DMV hearing officers? Do you think that the due process violations that occur on a daily basis are any less pervasive and invidious?

Standing in Plan Challenges - Just Working in Jurisdiction Isn't Enough

In Potiris and Novack v. Dep't of Community Affairs, the 5th DCA held that simply working in a jurisdiction is insufficient to demonstrate that one does business there for standing purposes in a plan amendment challenge.

Practice tip: if you need to establish standing and don't own property, at least rent a post office box and pay occupational license fees to the jurisdiction

5th DCA - It's Illegal, But Who Cares?

In Board of County Commissioners v. City ov Cocoa, over a strong dissent by Judge Evander, the 5th District let the City get away with what appears from the dissent to be a clearly illegal involuntary annexation of undeveloped lands because there was no "miscarriage of justice."

In effect, the District Court used this oft-abused 2d tier certiorari standard, which is intended to prevent simple complaining from reaching the districts as a "second appeal." as a basis for turning a blind eye to a flat out abuse. The legislature or the Supreme Court MUST fix this situation. Certiorari review is simply insufficient where there are no meaningful procedures, requirements for written opinions, and too little meaningful guidance on what consitutes "departure from the essential requirements of law."

Annexation not Compact, but What About Standing?

In City of Center Hill v McBride, et al, the 5th District upheld a circuit court's quashal of an annexation ordiance on certioriari review (I know, should be illegal but it isn't), based on agreeing with the city that the annexed lands (to be used for a limerock mine) were not sufficiently compact (described by the challengers as a "ballooon on a string").

My question is how these unincorporated residents met the requirement of the statute that requires a demonstration of material injury.

Bert Harris - Refusal to Extend Permit not Compensible

The Fifth DCA probably got the right result based on the wrong (or incomplete) interpretation of the Bert Harris Act in Holmes v. Marion County.

The Holmes' were denied a "special land use permit" to continue operating a Construction and Debris landfill on their property past the 3 years they already had been operating. Predictably, the denial was based on a bunch of complaints from neighbors.

The Holmes filed under Bert Harris, claiming that the landfill was an existing use, and that the denial inordinately burdened it. The court found that it was not "vested" and that the Holmes "investment backed expectation" was only to run the mine for the 1st three years.

The Court completely botched the analysis.

First, Bert Harris protects either "vested uses" (e.g. one that is already operating) or "existing uses" -- the latter are those uses that are reasonably foreseeable, non-speculative uses that are suitable for the property and compatible with adjacent uses. The Act therefore clearly intended that some "non-vested" uses that a property MIGHT be allowed are protected. By claiming that the Holmes' could not get compensation because their "investment backed expectations" were limited to the rights that had been vested, the Court completely got this issue backward.

Of course, the lower court might have found that the ability to use the land as a landfill was not an existing use because it did not qualify under the definition of an "existing use" and in this case that probably was the case (at least based on the reported facts - god knows what the real facts are).

So, did it come out right? I don't know, but quite possibly. Did the Court get the law right? No.