Due Process/Bias Issues When Bd or Staff Attorney Does Findings

It's a common practice in local qj hearings for the board attorney (we'll get to board/staff role problems in a minute) to prepare a set of "canned" findings for the Board to adopt. Almost no local procedures have a process (like in the FAPA) where the parties file proposed findings/conclusions.



Well, here are a couple of cases that support the idea that the FAPA proposed order process (both sides get to do them, get to comment) may be a due process requirement and that common practice here is improper. In this case the Florida Supreme Court held that it was improper (uncon/bias/no basis for review) for a judge to adopt findings proposed by one party when the other party had neither the opportunity to review and comment on the proposed findings nor an equal opportunity to present its own. This case has a lot of meat for the proposition that a judge has an obligation to render a complete, independent decision and not simply accept proposed findings/conclusions wholesale. Justice Pariente's concurrence points out that one of the key policy comments in Canakaris demanded that the deference to and discretion of judges needed to be balanced by review that would ensure that decisions were consistent.



And in this case out of the 2d, the Court held that to adopt one side's proposed order without change and without making independent findings on the record created a severe reviewability problem and the conclusion that the judge had delegated his decision making authority to one of the parties.



What are the implications - well, first, these decisions point out the due process basis in many of the FAPA statutory procedures that are all too lacking in the quasi-judicial proceedings before most local boards.



Second, the policy in these cases clearly indicates that it's improper to have a an adjudicatory process that provides for recommended findings from staff without having a chance for the applicant or opponents to put in recommended findings, etc. It is also clear that it is improper for a decision maker to simply vote to accept on (or another) recommended findings: the board must establish an independent basis for its determinations on the record. So there needs to be a process by which the proposed orders are considered fully and fairly before the decision maker issues an opinion.



[Comment - it's also clearly improper in a case where the attorney for the Board is supposedly independent from the staff to have prepared findings ahead of time in an adjudicatory proceeding. How could findings based on the record at the hearing be prepared by the finder of fact or its representative until the close of the evidence? This is one of the areas where there needs to be a clear distinction in process before city/county/special dist commissions between quasi-judicial decisions where this would be completely improper and quasi-legislative decisions where prepared findings would be OK]



Finally, as I've stated elsewhere, where the local procedures are inadequate to protect a party's rights, the party must make its objections known on the record.



PRACTICE POINTS:

1) for all the gov't attorneys out there: start regularizing your quasi-judicial processes and provide for a) either no proposed findings from anyone, or a fair route for all parties to provide them; b) processes by which the Board makes independent findings on the record that would support/explain it adoption of any findings/orders that are proposed.

--- for all the folks out there screaming "my board can't do this" (see all the complaints about Snyder, etc.; the answer is simple: if you can't provide for quasi-judicial hearings and decisions from your boards that comply with due process and review requirements, adopt a hearing officer model. Due process doesn't go away just because there are five or seven judges, so either start having full three day hearings that are serious due process hearings or delegate the authority.



2) for landowner/applicants and 3d parties:

a) prepare a recommended order and give it to the other side(s) at the end of the hearing. The more detailed, the harder time they will have doing something summary and justifying it on review.

b) demand that any and all proposed findings be given equal consideration by the finder of fact.

c) object on the record if the staff has proposed findings but you're not given the same opportunity, or if the Board doesn't discuss them equally, etc. At the very least demand the right to review the findings and present oral or written objections to the Board BEFORE it makes any decisions.

d) object on the record if the Board's attorney has prepared findings before the close of evidence - such findings either are unsupportable or are clear evidence of bias and collusion between the "independent" board attorney giving advice and the "prosecution" role. See Cherry and similar cases.



Local government attorneys I've talked to often operate under the belief that because Matthews v Eldridge states that the formality of due process that must be afforded is dependent on the circumstances, they can avoid the fairness and reviewability standards demanded of due process hearings. Cases like these (and others I've been citing) demonstrate that this is NOT the case: both the "opportunity to be heard" and "fundamental fairness/lack of bias" are CORE due process principle and must be respected.

Admin Res Judicata -- well, not - but an interesting issue

The same day that it released the Collins decision, the Fourth released this opinion declining to apply res judicata principles (because of mootness/lack of effect) in a 2d tier cert case involving a special exception. The case doesn't tell us much about res judicata, but points out a signficant issue regarding the expiration of certain approvals pending an appeal.



Unfortunately, the court gives no details, but it appears that one special exception was granted, appealed, and then expired during the pendency of the appeal. Another was applied for and denied, though we don't know if this occured while the cert petition was pending or while the applicant/church was trying to appeal the legal decision in the first case.



Interesting - the first cert (obviously 3d party) was claiming admin res judicata against the granting; the circuit judge denied as moot (because of the expiration) and also made a comment that the Board had erred in granting the exception because of the admin res judicata issue. The church took the issue to the Fourth on that issue. The Fourth declined on the basis that of mootness but also because the Board had denied the later application. It therefore declined to rule on the res judicata issue. What we don't know is whether the later denial is up on appeal in the circuit court. If it is, the res judicata issue may be coming back.



See the problem? If the first special exception expired only because the church didn't want to go forward while a cert petition was pending (remember Shidell, you don't want the approval to expire just because of the petition. That creates a situation where attacks on an approval can succeed simply by drawing out the proceeding until the approval expires.



And if it does expire, you re-apply, and then get denied (maybe by a new board, maybe by more developed politics and maybe because the application really didn't meet the standards), you'd want to argue in a cert proceeding against the denial that res judicata applied to the grant, and that the "reapplication" should have been granted absent changed circumstances or standards. This is untried grounds, really - the cases are somewhat all over the place and most of the ones I recall involve attacks rather than defensive use of res judicata (neighbors complaining that a second application shouldn't be approved rather than applicants claiming they should be).



Practice point and future litigation issue: if you're representing an applicant for a special exception (or variance or conditional use permit), get it, and the decision is challenged in cert by a 3d party, you probably want to ask the local government for a stay pending the appeal - yes, as the applicant - so that your time doesn't run out (if you're in a jurisdiction with a short fuse on SEs). [Of course you could take your chances and proceed on the approval, but if it involves construction activity and investment rather than mere use, I wouldn't recommend it to a client).



I'm guessing that many jurisdicitions wouldn't know how to handle this today, and would say they aren't authorized to grant a stay. But look at Fl. R. App. P. 9.190 - the provision for stays of decisions NOT taken under the APA provides that tribunals have the authority to grant them under appropriate terms. But you might end up having to ask the court to use its plenary powers to stay the decision if the local government won't.

DOAH - EFiling Registration for Fla Attorneys

Starting today, if you're a Florida attorney, you cans sign up for DOAH - EFiling Registration and file most pleadings and paperwork for an administrative hearing from your desk. Very cool - the electronic forms apparently on the site apparently generate properly captioned documents which get sent to you for service on the other party after you file.



Very cool for the technologically inclined.

Standing to Appeal Comp Plan Amendments Limited by 4th

On Wednesday, the 4th DCA released this opinion that holds that "third party" standing to maintain an administrative challenge to a comprehensive plan amendment under s. 163.3184 doesn't automatically provide standing to appeal under 120.68 if the party loses. It dismissed an appeal by the Martin County Conservation Alliance and some of its members to a plan amendment that had been approved by the Dept of Community Affairs after a 120.57 hearing and final order. It's another one of those superficially reasonable decisions that seems well supported by law and context, but that fails to hold up under any scrutiny.



(BTW - thanks to John Ferguson, Larry Sellers and a few others who sent me the link to the case. As with all my posts, the views here are mine and while I'm happy to challenge folks who might think differently, I don't intend to offend).



Essentially, any "affected" person can challenge a comp plan amendment AS A FULL PARTY, but the court held that under 120.68 one must be (and show in the record that they are) "adversely affected" by the administrative ruling to appeal.



Before getting into the meat of this ruling (which I'll do only relatively briefly because a full discussion would require a law review article), let's start by saying dismissing this appeal without giving the parties an opportunity to cure the pleading or factual basis below is flat out unfair. Folks have been challenging plan amendments based on pleading general facts regarding impact of the amendment ever since the statute was passed without this challenge being raised, and typical practice has been not only to make general allegations, but for the local government and landowner to stipulate to standing generally. So as a matter of principle, the petitioners here had no fair notice that they had to plead or prove differently.



[BTW, it's my understanding that the court picked this argument on its own motion and that DCA actually argued that MCCA had standing; I don't know what the County or landowner argued]



On the meat, well, let's start by saying that it's always a bad sign in a standing case when the court begins by citing a federal case (Morton in this instance). Federal case law - on their APA or general standing - simply has nothing to do with standing under Chapter 120 - the FAPA.



The essential issue here is whether the LEAF v Clark case - which held that LEAF, while being granted intervenor/party status by the Public Service Commission in a rulemaking proceeding that involved how conservation goals were to be set for electric utilities was not "adversely affected" by PORTIONS of a rule it didn't like - really stands for the proposition that a party who loses in an adjudicatory hearing is not automatically adversely affected by that decision.



The cites in the case make this seem like the cases hold that standing to appeal is generally separate from standing to appear, but that's really not the case.



Leaving Daniels (which was a case that FOUND standing) for a moment, LEAF involved proceedings before the PSC based on a grant of standing by the PSC (not by invoking and demonstrating that it was affected). PSC held extended negotiations with the parties, then convened a hearing and entered a final order adopting rules that governed how utilities would be required (or not) to implement conservation programs. The Court held that LEAF did not have standing to contest ONE PART of the final order that involved how the standards would be enforced. It did (implicitly) give LEAF standing on due process claims, as well as on its claim that another part of the rule was not supported by the evidence. It is VERY important to note that in the case of this rulemaking, the proceeding was, more or less, held before the PSC itself; that is, it was NOT a case where a hearing officer adjudicated a proceeding under 120.57 and the agency entered a final order.



So the LEAF case really stands for the proposition that a participating party in a RULEMAKING proceeding has (automatic) standing to contest issues that go to the fairness or evidence of the decision, but maybe not to the choice of enforcement mechanisms if the party will not be subject to them. It says NOTHING AT ALL about whether or not a party to an ADJUDICATORY PROCEEDING who loses part or all of the rulings there is or is not "adversely affected" by the final order. And LEAF clearly implies that insofar as there are adjudicatory issues (due process, etc.), a party to the proceeding is adversely affected by decisions or actions taken below that are adverse to them. That is, LEAF does not stand for the proposition for which the 4th cited it: that a losing party needs to show that they will be harmed by the decision as a whole in order to appeal all or part of it.



Let's also look at the specific case of comp plan amendment challenges: here the statute provides that administrative adjudication is the ONLY way to test the compliance of a plan or plan amendment with the statute. Because the state is supplanting judicial review of the amendment decision with an administrative adjudication, it must afford full due process and full judicial review of that process. (Scholastic Systems v Laloup).



The statute also defines (beyond the Chapter 120 definition) not only who is an affected party, but the some of interests that are STATUTORILY determined to be affected by planning decisions. The intent of this definition was to ensure that plans and plan amendments could be challenged broadly by the people who had to live with the long term results. [there is legislative history directly on this point that I saw as staff to the Jt. Select Committee on Growth Mgmt Implementation - thanks to Mike Morell for reminding me] The GMA challenge provisions also were adopted with the longstanding belief by most administrative law lawyers that a party who loses an ADJUDICATORY DETERMINATION in a 120 process is adversely affected by that determination for the review purposes of 120.68.



What's more, the whole reason for determining the validity of plan amendments against the statute and rule is that the actual impacts are speculative - but are recognized by the statute as coming. That is, when you change a land use designation, the statute assumes that - within a reasonable period of time - infrastructure, environment and neighboring land uses will be affected. The potential for adverse impact is presumed by the statute - the point is that the local government and/or landowner are supposed to be showing that the impacts will be properly dealt with.



So -

1) Broad interpretations of Daniels and LEAF to hold that a party to an adjudicatory proceeding under 120 who loses an adjudicatory determination isn't "adversely affected" is just wrong. How do you litigate the way that you might be harmed by a decision that hasn't been made yet? The rulings themselves, if adverse to a party, adversely affect the party, plain and simple.



2) The only potential area where this might NOT be true (dicta in Daniels, referring to Balino, and the case in LEAF) is where the proceeding is rulemaking and the rule involves provisions that affect only parties regulated by the rule (which was a fact-specific determination made by the LEAF court in finding that LEAF didn't have standing in that part of the case).



3) Attempts by the Courts or other litigators to import some kind of Rickman type standing into these cases flies in the face of the intent of the statute. I sincerely doubt that judges at the 1st DCA would have made a ruling like this for fear that Pat Dore would rise from her grave and haunt their chambers for the rest of their lives. Clearly, the 4th DCA judges never read any of her foundation articles on the role and purposes of Chapter 120 and standing in 120 proceedings.



Personal note: I was in Professor Dore's Admin Law class at the time of her death and we had been covering standing issues - she not only argued for open access to the administrative process (see her seminal 1986 article) but also to the appellate process.



PRACTICE POINTERS:

1) If you're a 3d party, plead specific ways that you will be affected by the change in the comp plan. I don't think this needs to be Rickman injury (different than the public as a whole). I'd be thinking of the same kinds of issues that I'd raise in a 3215 challenge and plead them.



2) Don't stipulate to standing generally, stipulate to the facts. In fact, I'd push to get stipulations regarding how my clients would be affected (adversely) if the amendment passed, even if some of them are speculative.



Happy litigating!

A good example

This 4th DCA opinion provides a good example of how courts should interpret zoning laws. The case involves the interpretation of covenants restricting activities in a subdivision. Such restrictions, note the courts, are to be construed strictly and in favor of the landowner because covenants that restrict use are not favored.



The same policy underlies the longstanding rule that zoning and similar land use regulations are in derogation of common law and should be strictly construed in favor of the landowner; also that the government can't "read in" restrictions that aren't there. Here's a partial string cite listing some of the relevant cases:



Rinker v. City of North Miami, 286 So. 2d 552 (Fla. 1973) (city could not limit operation of cement mixing plant based on language intended to limit the construction of concrete pipes and other materials) conformed to 288 So.2d 997 (Fla. 3rd DCA); Bellaire v. City of Treasure Island, 611 So.2d 1285 (Fla. 2d DCA 1992) (city could not redefine “condominium” to mean “multi-family” to limit rental where condominiums were defined as single family units); Powell v City of Delray Beach, 711 So.2d 1307 (Fla. 4th DCA 1998) (city could not insert requirement into land development regulations to require homeowner to pave entire alley), Thomas v. Crescent City, 503 So. 2d 1299 (Fla. 5th DCA 1987)(city could not prohibit the establishment of trailer rental pads in district that permitted “any commercial use of a retail or service nature”); Hoffman v. Brevard County Board of Commissioners, 390 So. 2d 445 (Fla. 5th DCA 1980); Halifax Area Council on Alcoholism v. Daytona Beach, 385 So. 2d 184 (Fla. 5th DCA 1980); Miami Beach v. 100 Lincoln Road, Inc. 214 So. 2d 39 (Fla. 3rd DCA 1968).



There's also a good, recent case from the 3d DCA - the Castro case that held that there's a difference between "parking" and "storing", and that a provision that prohibitted boat storage couldn't support a citation against a homeowner who simply "parked" his boat in his driveway.



Moreover, the usual policy that grants deference to the "agency's" interpretation historically does NOT apply to land use regulations. Instead, words used in a zoning ordinance to permit certain uses should be given their broadest meaning when there is no definition or clear intent to the contrary and the ordinance should be interpreted in favor of the property owner. Rose v. Town of Hillsboro Beach, 216 So.2d 258 (Fla.App.4th 1968); Brooks v. Anastasia Mosquito Control Dist., 148 So.2d 64 (Fla.App.1st 1963); Maryland Casualty Co. v. Sutherland, 125 Fla. 282, 169 So. 679 (1936); Marion County Hospital District v. Namer, 225 So.2d 442 (Fla.App.1st 1969), citing Maryland Casualty, supra; Godson v. Town of Surfside, 150 Fla. 614, 8 So.2d 497 (Fla.1942); Gay v. City of Coral Gables, 47 So.2d 529 (Fla.1950); Union Trust Co. v. Lucas, 125 So.2d 582 (Fla.App.2d 1960); and State ex rel. Lacedonia v. Harvey, 68 So.2d 817 (Fla.1953).



Unfortunately, these core princples are too often ignored, not only by the courts, but also by the local government lawyers who screen the codes and represent the local government in enforcement actions.

2d DCA requires findings from trial judge(s)

In my ongoing quest to establish that there is simply no basis in law for the Snyder/GBV rule that local commissions do not have to provide written findings to support their decisions in quasi-judicial rezoning determinations, I offer this 2d DCA case remanding an issue to the trial court for explicit findings and noting that it would demand them in the future. In this instance, the case involves sanctions for discovery violations in a med-mal case, but the logic is the same as in the 5th's divorce case that I cited last week:



Because our role is to review orders imposing or declining to impose a sanction for abuse of discretion, it is impossible for this court to carry out any meaningful review without findings by the trial court. In Torrey, the trial court had sufficiently explained the basis for his ruling. In this case, there is no explanation of the trial court’s analysis of the relevant facts or any explanation why the analysis in Torrey is not applicable. We simply cannot tell whether the trial court abused its discretion in apparently concluding that respondents’ conduct was not willful or that Torrey did not apply. Accordingly, we grant the petition to the extent that the order at issue lacks findings. And, in future, we will require the trial court to explain the legal or factual basis for its ruling on sanctions in medical malpractice cases, at least where, as here, the basis for the decision is not apparent.

Update - circuit ct opinion in Orange County case

In response to my post last week, a reader forwarded me the circuit court opinion. Here's a link to that opinion in MS Word format.



From the looks of it, everyone got so focused on the "law of the case" issue that no-one looked at the issue of whether the findings at issue would justify denying the development order. If there is such a standard (like "its in the public interest"), I would seriously be considering a collateral attack on the ordinance as void for vagueness as applied - a CON issue that could be brought up collaterally.



On that, btw - you'd probably run into a major conflict between the DCA's. The 5th last year held that it could read from the intent and definition sections of an ordinance to provide meaningful standards to a conditional use process that had none. (Caps v St. Johns). Really bad decision IMHO. The First has let some vague delegations through (the old Alachua County case, and the more Windward Marina v Destin case). But the 3d, in the decision on remand in Omnipoint, held explicitly that a board hearing a QJ matter can't go beyond the standards and rules contained within the section under which it takes authority. The 3d also is the District that issued the leading cases in the "standards" area - North Bay Village; Save Brickell Avenue, etc. Under Omnipoint, you can't go wandering around other parts of the ordinance -OR THE COMP PLAN - for standards just because they're out there. The ordinance probably can specifically reference standards outside itself, but I'm guessing that the 3d wouldn't put up with some kind of "otherwise consistent with law" type of delegation language.



PREDICTION: While local governments have a number of wins under their belt upholding really bad, vague ordinances (that delegate almost unfettered discretion), the relationship between adequate standards and fair decision making is going to be one of the next frontiers of litigation at the local level. Too many ordinance grant too much discretion to boards (of adjustment, planning commissions, city/county commissions, DRC's) and any fair observer would agree that the discretion is being abused in too many cases (and that's regardless of whether you're a developer or a neighbor/NIMBY/environmentalist).