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.

Whoops - 4th Changes its mind - city can sell property without required referendum

Several months ago, I posted a reference to a decision in which the 4th DCA overturned an action by the City of Pompano Beach. A charter provision protected recreationally designated lands from sale without a referendum. The city had circumvented the charter provision by redesignating recreational land by ordinance and then selling it without a referendum.



In its original decision, the 4th held that the intent of the charter was paramount, and allowing the commission to go around it by simply changing the designation was inconsistent with the intent of the charter.



The City asked for reconsderation and in this opinion, released on the 17th, the 4th changed its mind. The logic: the Court read the fact that there was another way to sell non-designated lands, and "read together" the provisions to make the referendum optional at the hands of the City Commission. The new decision holds:

We are not persuaded by the appellant that llowing the City to redesignate and

then transfer this property makes the referendum requirement eaningless. The

drafters of the charter may well have intended to give the City two methods for

disposing of section 253(f) property, depending on the circumstances. For

example, if the City owned a golf course which it wanted to sell, but knew that

the issue would be controversial, it would have the option of submitting the

issue to an election. On the other hand, if the City owned a small parcel

which had been designated a recreational facility, but was no longer being used,

and the disposition of it was not controversial, the City would have the option

of not going to the expense and delay involved in an election. This

interpretation gives effect to both provisions

The problem with this analysis is that the City Commission ALWAYS has the power and discretion to put one of its acts before the citizens in a referendum. The court's revised interpretation makes the referendum process suplussage and completely up to the discretion of the Commission. The ONLY reason for the referendum requirement was to limit the City Commission's authority to sell designated properties.



The court had it right in the first opinion, where it held:

We are unable to reconcile the City’s position, which is that it can avoid

the charter requirement of a referendum, by merely redesignating and then

transferring, with several statutory construction principles. First, the court

should consider the legislative intent. St. Mary’s Hosp. v. Phillipe, 769 So. 2d

961 (Fla. 2000). The obvious intent of section 253(f) is to require a referendum

for the transfer of this property.

Second, courts should avoid interpretations which render parts of a statute meaningless. Unruh v. State, 669 So. 2d 242 (Fla. 1996). In this case the City’s interpretation makes section 253(f) meaningless.

Third, courts are obliged to harmonize conflicting provisions if it is possible to do so. M.W. v. Davis, 756 So. 2d 90 (Fla. 2000). The two provisions can be harmonized, and both given effect, by holding that property described in section 253(f) cannot have its designation changed by resolution in order to transfer the property without a referendum. That would give meaning to the provision requiring a referendum for section 253(f) property, but would not make the provision allowing change in designation by resolution meaningless. See Kiesel v. Graham, 388 So. 2d 594 (Fla. 1st DCA 1980).

We therefore conclude that the charter does not authorize the city to

avoid the referendum process for property described in section 253(f) by merely

redesignating the property for the purpose of transferring it. The summary

judgment is accordingly reversed.

One can only assume that the pro-se representation by the plaintiff/appellant in this case finally fell to the superior firepower of Holland & Knight and Susan DeLegal (no slam on them). But the result is a win for the unfettered discretion of local legislatures even in in the face of charter provisions clearly intended to limit that discretion. One loss for efforts to restrain the unfettered and often unidisciplined actions of local governments.

UPDATED: DRI DO vesting under 163.3167(8) limited by 1st DCA; comp plan consistency applies to "sub-substantial" deviations

I was bemoaning the paucity of new land uses cases to post the other day. Just in time for the holiday season, the 1st DCA released this opinion on Monday, which holds that DRI's are not vested against the application of the local comprehensive plan for changes in the Development Order, even when those changes do not reach the scope of a "substantial deviation."



The specific situation (which will almost certainly cause litigation over whether the opinion means what it says) was that a developer proposed a change in a longstanding but continually devleoping DRI development order. The change would have altered the use of several parcels, adding 66 units and allowing a higher high-rise that was approved in the DO.



The RC and DCA found that the changes did not qualify as a substantial deviation. The developer applied for a NOA to change the DO with the County Commission, which denied it. This threw the issue to the gov and cabinet sitting as FLWAC, who denied the change, based on its inconsistency with elements of the comprehensive plan (not on the basis that it was, in fact, a substantial deviation).



The 1st DCA entered an en banc opinon (with dissents) to bind the entire panel. Here's the key holding:

Once a DRI has been approved, the right to develop pursuant to the terms of the DRI vests. See § 163.3167(8), Fla. Stat. (2001). Vesting means development rights obtained through a previously approved DRI are not lost by subsequent changes in the law. It does not, and cannot, create entitlement to greater rights than those originally obtained.



Accordingly, a proposed change jeopardizes vested rights because, by definition, the change seeks different development rights than those development rights originally approved

While the facts here involve a decision on an NOA by FLWAC, the language here is stark: it says, essentially, that any change to a DRI DO does not enjoy the statutory vesting against the provisions of Chapter 163. This means that they are subject to challenge under s. 163.3215 for consistency with the Plan. That is a BIG deal.



While the 1st's en banc opinion pretty much ensures that this will apply to most administrative reviews of DRI issues, it remains to be seen whether other District Courts will apply it to DRI changes within their jurisdictions, and it seems a good bet that someone will disagree and the issue will eventually wend its way to the Supremes. In the meantime, I suspect that we'll see a bill in the next legislature to "fix" this.



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PS - I got an email from a friend who took the above as being critical of the opinion. I'm not - I think that it's consistent with the clear and limited language of the vesting provision, not to mention the basic point that such exemptions should be strictly construed. It's consistent with the thinking of a lot of folks I know, but it never was clearly litigated - and the Edgewater case threw the whole matter into doubt.



I am surprised that this had to come up in such a sideways fashion rather than head on in a 163.3215 challenge to a local government action on a DO; especially since 3d parties have been excluded from challenging those DO's through the administrative process of 380.07. That section does not make the 380.07 challenge the sole remedy to address the adoption of a DRI development order, so if the DO doens't have the vested exemption, it seems to me to be fair game under 3215. But it appears that (other than Edgewater) no-one's done it.

Notice and a hearing does not a quasi-judicial proceeding make

In this opinion involving a bid challenge, the 3d DCA demonstrated that rigorous analysis of the nature of delegated authority sometimes prevails, even in the post-Snyder era of slipshod "functional analsysis."



The court held that a decision on a bid challenge was not quasi-judicial and reviewable by certiorari simply because the process provided for a noticed hearing by a hearing examiner prior to a final decision by the Board of County Commissioners. Instead, the court found that the decision was an "executive" administrative decision, challengable in a de novo action. It therefore found that the Appellate Division of the 11th Circuit was correct in transferring the matter to the civil division for trial.



While the court did not lay out the complete rationale (citing to other cases), it is clear from the context that the decision is executive because the decison of the Board is not based on the evidence produced at the special master hearing, but is effectively de novo based on the evidence, argument, and the County Manager's recommendation. The guiding ordinance does not meet the tests laid out in DeGroot v Sheffield and Bloomfield v Mayo for a delegated quasi-judicial proceeding.



A victory for clear thinking and vigorous analysis.

Temporary moratorium on approvals doesn't violate due process/not a taking

In this opinion, released on September 29, the 4th DCA held that a nine month moratorium placed on approvals of multi-family developments while a review of the comprehensive plan and land development regulations did not violate substantive due process and wasn't a taking.



On the due process end, the court held that there was a substantial nexus between the moratorium and the permissible public purpose of maintaining the status quo, agreeing with the trial court when it determined that "the temporary moratorium was an important land-use planning tool . . . to ensure that the community's problems were not exacerbated during the time it takes to formulate a regulatory scheme."



On the takings issue, the court predictably (but without much analysis) relied on Tahoe-Sierra Pres. Council v. Tahoe Regional Planning Council, 535 U.S. 302 (2002) for the proposition that temporary moratoria do not constitute a taking.