Procedural Complexities in Challenging Development Orders

In City of Sanibel v. Maxwell, here's the opinion, the 2d DCA granted a writ of prohibition against a trial court to prevent consideration of a "reopened" lawsuit.

There was a dispute over a grant of a variance. Decision was subject to an (unspecified as to procedure) adminstrative appeal, which failed. The decision was then taken to circuit court in declaratory action. Action was dismissed w/out prejudice to file a petition for writ of certiorari, which apparently wasn't pursued (more on this later). That order (the language of which we are not provided), was not appealed.

Two years later, the plaintiffs try to revive and amend the suit with a second amended complaint and the trial court grants the motion. The writ of prohibition proceeds and is then granted on the grounds that the trial court lacked jurisdiction to consider the motion to amend.

OK, this may be a correct result, but it points out a slew of problems for neighbors challenging development orders - and also similar problems for landowners challenging denials.

First, let's look at the original dismissal. We don't know if it properly characterized the action below as quasi-judicial, and therefore subject only to cert review. We don't know if the action was filed w/in 30 days, or if the dismissal appeared to be a death knell to any challenge. Moreover, we don't know if it was a proper, appealable "final order." There is a "magic words" component to an order granting a motion to dismiss - if it only grants the motion, but doesn't actually dismiss the underlying case, it's not a final order and it's not appealable. This then gets into an entire issue of when/how you'd appeal it, whether you'd need to appeal it, etc.

Then there's the fact that the court dismissed the case without leave to amend. Given the 2d DCA decision in the recent Concerned Citizens case, a petition for cert is conducted under the civil rules. Given another recent decision, these are original actions, not appeals. That means that, if the Plaintiffs had properly invoked the original jurisdiction of the court within 30 days of the action, there is a very good arguement that they should have been given leave to amend the already instituted action to be a proper petition for certiorari and to file an appendix, etc.

And if the action was not dismissed by a final, appealable order (no analysis in this opinion), and if it improperly treated the issue of "reforming" the pleading to be a petition for writ of cert, then the circuit court probably did have jurisdiction and the 2d's action is incorrect. Unfortunately, there's not enough information in the opinion to tell.

We really, really need to get better opinions out of our appellate review process on land use decisions. A good reason for creating a new, independent administrative tribunal to hear all administrative appeals from local DO decisions.

State Imposition of Erosion Control Line a Taking Because it Extinguishes Riparian Rights

Beach renourishment is, obviously, a big deal in Florida. So are riparian rights, which include the right to accretion or reliction at the shoreline, and the right of contact with the water.

Before a beach renourishment gets approved, the Florida statutes require that an "erosion control line" be established. This line demarks the point between the upland and the mean high water line (at the time). Under the statute, once established and recorded, it destroys the upland owner's right to accreted lands (including the right to use them for density).

In this opinion, in Save our Beaches v. DEP et al, The 1st DCA held that this destruction of riparian rights is a taking, and that because the statute makes no provision for compensation, it is an unconstitutional taking.

It gets a bit complicated after that, at least for non-admin lawyers. The issue in the case was the issuance of a permit to use sovereignty or submerged lands for the beach renourishment project, which requires that if riparian rights are to be harmed, the state must use eminent domain. That hadn't been done, and the Administrative Law Judge issued the permit, because of the effects of the statute (which was presumed constitutional). Having found the statute unconstitutional, the Court overturned the issuance of the permit. It did not invalidate per se the statue. But it did invalidate the recordation of any deeds or survey showing the line, if those instruments showed a seaward boundary different than the property owners' deeds.

WHAT DOES IT MEAN?
I think this means that any riparian owner on the beach or gulf whose property has been subjected to the recordation of an erosion control line can sue to have that line erased from any record, and clear any title issues to property seaward of the line.

HOWEVER, accretion historically applies to natural processes. What we DON'T know is what happens to the rights of the owners of what was waterfront property where there has been a beach renourishment project that has artificially extended the mean high water line seaward of the historical mean high water line.

Lots of fun, folks!

Important Notice Case from US Supreme Court

In Jones v. Flowers, et. al, here's the link, the US Supreme Court held that notice concepts of due process were violated by the tax sale of a property when the certified mail notice came back unclaimed and the the taxing authority did nothing to determine the actual location of the property owner or to post the property.

This one's long, but should be read. It has poetential application to code enforcement and other zoning enforcement proceedings that could result in burdens (like liens) on property that amount to a deprivation. It might also apply to downzonings - particularly if they would result in a property becoming non-conforming (the loss of the existing right to an existing use rather than simply a potential future right of use).

Bert Harris Settlement - Maybe More Complicated than You Think

A couple of years ago, I blogged Vetter v. Charlotte County - which dealt with preliminary injunctions and vested rights. Now it's back as Charlotte County Park of Commerce v. Charlotte County. Here's the opinion - which anyone interested in Bert Harris actions MUST read.

It appears that a settlement agreement to deal with the case has blown up. One of the elements is that the landowner filed a notice of a Bert Harris claim during the pendancy of the other litigation. The "claim" was subject to the settlement - before the actual Bert Harris lawsuit was filed.

While gets to the issue. The Act provide for the presuit notice of the "claim" (including the requirement to file appraisals), a 180 day settlement period, then the ability to file a suit. The Act also requires court approval of the settlement "under this section" if it would contravene a statute (the most likely candidate in most circumstances is 163.3194 - the consistency requirement- if a settlment arguable includes a variance from or interpretation of a comprehensive plan provision).

So, is a settlement "under this section" a settlement only of a filed lawsuit, or of a noticed claim?

The 2d District took the position that once the notice of claim was filed, the operative provision for approval of the settlement agreement took effect. That is, once there is notice of a Bert Harris claim, the parties are bound by sections 70.001(4)(d) 1 and 2 regarding the settlement. In this case, that meant sending the issue back to the trial court, because if the Bert Harris claim was settled, then the Plaintiff might be entitled to the relief sought (judicial approval and enforcement of the settlement).

3d Reverses its position in Turnberry case

I wrote awhile back about a 3d DCA opinion holding that a particular commercial use wasn't permitted by the Turnberry Isle zoning. Here's a twist:

On rehearing, the court substituted a new opinion, here's the link, that found that the City of Aventura's determination that the use was a vested non-conforming use was reasonable, and therefore due deference. It therefore 'unquashed' the circuit court decision, upholding it instead.

On one hand, this seems a reasonable and fair outcome. On the other, both neighbors and developers live and die by the same sword when it comes to local discretion. I firmly believe that local interpretation should be striclty constructed and reviewed by courts, using the legal rules of statutory construction, for the simple reason that local agencies don't always follow those principles in construing local codes.

3d DCA - Interpretation of Zoning Code and Density

In Marina Grande North v. Fortuna Smulker et al, here's the opinion, the 3d upheld the circuit court's overturning a rezoning on the basis that the city allowed too much density by including privately owned bottom lands in the calculation when the definition of density excludes "water bodies" from the lot area for density purposes.

Seems like a simple enough interpretation question - but now, on to the litigation over the extinction of property rights in submerged, privately owned lands.

1st DCA to Columbia County - Get Real, or Local Gov't Abuses of their Zoning Regulations are Endemic

Ok, I defy anyone to read this opinion, in Stroemel v. Columbia County, and maintain the belief that local governments can be trusted to fairly interpret and apply their own zoning regulations, or even to fairly represent their meanings to the local circuit court.

Stroemel owns property on a river in Columbia County on which he operates a canoe/kayak rental operation. The zoning regulations applicable to his property permit "public resource based recreation facilities." Despite the fact that the river is clearly a public resource, and that a canoe/kayak rental is clearly a "recreation facility" the county tried to shut him down.

Even more incredibly, the county argued to the trial court (and the circuit court judge agreed - HUH?) that the term "public resource" didn't really mean what it said - facilities that used or accessed a public resource. Instead, "resource" wasn't mofied by public - public meant publicly owned.

This argument so doesn't pass the smell test that the county's attorneys should be sanctioned for bringing it forward, even if some locally elected judge was conned into accepting it (as happens all too often - a perfectly decent judge in DeSoto County recently ruled in a case I'm involved in that rezonings aren't development orders, despite the clear language of chapter 163). I believe that local judges trust that local government attorneys will behave as ethically as the state attorneys that appear before them -- that they will be bound to make limited, fair and constitutionally constrained arguments. Instead, too many local attorneys think that their job is to twist and bend the law into any shape that they can in order to defend the actions of their boards, and the boards' political agendas.

But, on a more useful (and less ranting) note - the decision includes a GREAT recitation/summary of the Rinker rules on statutory construction (without the internal cites, etc.). This paragraph should be part of EVERY land use lawyer's lexicon:

In determining whether appellant’s proposed development comes within
the ambit of a “public resource based recreation facilit[y],” the following
rules of statutory construction should be employed:
(a) In statutory construction, statutes must be given their plain and
obvious meaning and it must be assumed that the legislative body knew
the plain and ordinary meanings of the words.
(b) Statutes or ordinances should be given that interpretation
which renders the ordinance valid and constitutional.
(c) Since zoning regulations are in derogation of private rights of
ownership, words used in a zoning ordinance 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.
Municipal ordinances are subject to the same rules of construction
as are state statutes . . . . [C]ourts generally may not insert words or
phrases in municipal ordinances in order to express intentions which do
not appear, unless it is clear that the omission was inadvertent, and must
give to a statute (or ordinance) the plain and ordinary meaning of the
words employed by the legislative body (here the City Council).
Rinker Materials Corp. v. City of North Miami, 286 So. 2d 552,
553-54 (Fla. 1973)
(citations and footnotes omitted).

It's amazing how frequently local governments, boards of appeal, and circuit courts forget these basic canons.