Fla S Ct rejects Review in Pennisular Properties: 70.51 Stays Time for Filing Cert

In City of Bradenton v. Pennisular Properties, the Fla. Supreme Court rejected the City's appeal. This leaves the 2d DCA's opinion in force, which means that filing a request for mediation under 70.51, Fla. Stat. stays the time for filing for certiorari review.

The 70.51 process provides for mediation and then what I call a "magistration," where a special magistrate will determine whether a government decision is unreasonable or unfairly burdens property. The magistrate's recommendation (or a settlement) can be the basis of a local government action to implement the settlement, including new variances, etc.

The petition is a simple 2 page affair, cheap and easy to do.

Many local government attorneys dislike this process - they don't like the idea of tainting a nice clean denial with messy processes with standards that don't unduly favor the government.

But by allowing more time to not only file the cert petition, but also to line up other defenses or causes of action (your Bert Harris claim, for example), filing a 70.51 provides a means for bringing more firepower to bear on the mediation process and increase the likelihood of settlement without filing the litigation. By holding that the stay provision applies to certiorari, the Second assured the usefulness of this tool, which should be in every developer attorney's toolbox.

Mobile Home Statute Doesn't Apply if Eviction Before Rezoning

In Celebration Pointe Townhomes v. Rancho Margate Mobile Home Park, the Fourth District held that the owner of a mobile home park is not subject to the relocation and alternate site availability requirements of Chapter 723 do not apply where the owner of the park evicts residents for a statutorily acceptable reason and process before applying for rezoning.

Illegal Exactions Protected by Bond Validation

In Frederick et al v. Northern Palm Beach County Improvement District et al, the District Court upheld the circuit court's dismissal of claims raised by various homeowners who claimed that they were subjected to unconstitutional exactions.

The homeowner's predecessors in interest (the developer) cut a deal with the county to set up an improvement district to fund not only the roads internal to the project, but also to build a major section of arterial road. While the project was still under the developer's control, an assessment was levied (for 20 years) against property in the development and the bonds were validated.

None of the other developments who benefit from the improved major road were assessed. Later, homeowners subject to the assessment -- understandably annoyed when they realized they were paying for infrastructure for the entire area, and effectively subsidizing the other developments-- sued to establish that the assessments were illegal because they were not proportionate to the impacts of the paying development.

The circuit court dismissed, holding that the statute of limitations had run the validation of the bonds precluded later challenges to the assessments. The District Court affirmed, holding that the homeowners were bound by their predecessor's knowledge of the date of the validation/action.

In the case now before us, we must balance the interests of the Homeowners in
receiving notice of the exclusive nature of the Unit 18 assessments against the
public policy concerns highlighted in H&B Builders. Weighing these competing
interests, we find that, on these facts, the Homeowners interests are outweighed
by the need of the District for certainty in creating water management plans and
funding those plans. As a result, the approval and creation of the assessments
and impact fees here by the District provided sufficient notice to then existing
and future homeowners of their obligations. This is true even if the assessments
and impact fees were improperly levied. See Ves Carpenter, 422 So. 2d 342;
Spring Lake Improvement District, 814 So. 2d 1077.

So, clearly, sue before you buy - or at least be sure that your developer did.

Court permits creation of "aspirational policies" in comp plans

In Indian Trails Improvement District v. Department of Community Affairs , the 5th DCA approved the County's effective planning-based takeover of an independent utility's franchise area by creating a new category of "aspirational policies" which the local government can adopt with no supporting data and analysis.

What is an aspirational policy? Why would it be needed in a comp plan? What happens when the local government starts giving it regulatory meaning as justification for other actions?

On the other hand, the Court did hold that indirect impacts on a business or other interest can be sufficient to establish that a person is "aggreived or adversely affected" for standing.

Failure to Appear or Raise Issues at QJ Hearing Does not Preclude Standing under 163.3215

In Dunlop v. Orange County, the 5th DCA held that a aggreived neighbor is not precluded by waiver from demonstrating standing and raising issues in a de novo proceeding under 163.3215 for failure to do so in the quasi-judicial proceeding before the local agency.

Yeah, it's obvious: if you have a de novo hearing, all of the issues are de novo. Didn't stop Orange County from claiming waiver and preclusion to the apparently clueless circuit court.

Just another example that the circuit courts (improperly, in way too many cases) trust the positions of local government attorneys over their private counterparts, whether they are representing developers or neighbors. The result: effectively unreviewable discretion. De novo proceedings under 163.3215 are one of the exceptions -- too bad the courts refuse to give effect to the 2002 amendments and allow landowners to challenge improper interpretations of the plan to deny development orders.

Law Enforcement Has a Forensics Team - So Can You

In a computer forensics lab, the police have specialized equipment which prevents any alteration of original digital media such as hard drives, disks, and flash drives disks. In addition, they have hardware and software that will retrieve evidence from cell phones, such as text messages and pictures. For computers, specialized software is used to examine the computers and extract the evidence. Methods adopted from the International Association of Computer Investigative Specialists, a worldwide organization for computer forensics examiners, are sometimes used. At CentralLaw.com we use a forensics expert to help sort through data used in prosecution of federal indictments and state charges, fraud, hacking, theft of trade secrets, and other forms of cybercrimes.

1st DCA- Gov & Cabinet Blows Call on "Not in Compliance" Plan - Now What?

In an interesting decision in Don and Pamela Ashley v. State Administration Commission, et al, the First District upheld the determination by the ALJ and Dep't of Community Affairs that the plan wasn't in compliance, but reversed a determination that two land use categories created by the amendments were not "mixed use" land use categories that need additional policies governing permitted density, intensity and mix of uses.

A read of the opinion makes this seem like a no-brainer, but . . . . ? The amended plan created "rural village" and "conservation residential" land uses that appear based on the parts of the record recounted by the court to allow a combination of residential and limited commercial uses. In defense of the County and DCA, it looks like these commercial uses were intended to permit existing land uses, such as marinas, restaurants, etc., that had been established in "pre planning and zoning days" to continue.

Here's the really interesting, but unexplored, part. The holding reverses and remands the decision back to the Governor and Cabinet (sitting as the Administration Commission"). Under the Growth Management Act, if the Admin Commission finds a plan amendment "not in compliance" they specify "remedial amendments". The local government either (a) abandons the plan amendment; (b) adopts the remedial amendments. or (c) puts the "not in compliance" amendments into effect and suffers economic sanctions identified in the Order of the Admin Comm'n.

So I would expect that the result of this order is that the Admin Commission is going to simply amend its order and add some additional remedial amendment language. Some additional policies limiting the amount of, and size of, commercial development will be added, along with a description of uses, etc. But it will be interesting to see how and whether the sanctions section is created and how detailed the new policies will have to be.

I'm guessing that what this mostly did was prevent St Joe Paper from developing (or at least planning and zoning) some "rural village" development areas intended to cluster relatively low densities into pockets and ensure that there is some limited local commercial (gas station, food mart, etc.) available so that the residents of these areas don't have to drive long distances to get basics -- and maybe to permit telecommuting and other "live-work" opportunities.