Due Process in Driver's License Proceedings - NOT

The 3d DCA overturned the quashal of a DMV driver's license suspension in Fla DMV v. Jones, here's the link. The Department (in a hearing before a non-lawyer, department employee) apparently suspended the license based only on the officer's arrest report. The issue was probably cause for the stop, and the appeal was over whether the lower court had reviewed the statements in the report using a "subjective" versus "objective" test.

But the real issue is that people's licenses are being suspended based only on documentary evidence without the right to confront. The idea that these arrest reports are self-documenting and can be introduced without the sworn testimony of the officer (absent one of the various exceptions to hearsay, etc.) flies in the face of any kind of democratic justice.

Think about it: an administrative agency suspends your license based on a document, then gives you a "hearing" in front of one of its employees - who has no training in the law -- and then rests its case on the document, with no meaningful opportunity to challenge the contents of the document. In other words, in any meaningful way, the arresting officer IS the sheriff, judge, jury and executioner (since the officer siezes the license), because there is no meaningful way to challenge the officer's action.

Good bye justice and freedom. Hello Gulag.

2D DCA Upholds Blight/ED Decision in Probably the Last CRA Use of Eminent Domain

As reported earlier, the Legislature enacted a wildly over-reactive statute limiting the use of eminent domain by local governments and CRAs.

In this case, Fulmore et al v. Charlotte County, here's the link, the Court upheld the trail court's affirmance that the County's determination of blight was valid under the Community Redevelopment Act. It also held (consistent with past decisions) that the elimination of blight (as defined by the statute) had a valid public purpose.

One sore spot - the plaintiffs had challenged the statute as impermissibly vague because several of the criteria are vague. But the challenge and the decision are predicated on the wrong legal arguments regarding vagueness.

The court held that some of the criteria are objective and then stated that the governing law is that if some valid criteria are available, the entire statute can't be struck for vagueness - i.e., no facial challenge:

Â?[A] facial challenge for vagueness will be upheld only if the enactment is impermissibly vague in all of its applications.Â? Brown v. State, 629 So. 2d 841, 843 (Fla. 1994) (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495-96 (1982)). The LandownersÂ? acknowledgement that several of the blight factors are objective and quantifiable necessarily means that section 163.340(8) is not vague in all of its applications. Thus, their facial constitutional challenge fails.

The problem with this is that the court is citing criminal/1st amendment case law instead of regulatory caselaw. A regulation is impermissibly vague if it vests unbridled discretion in the administrative body implementing it. (OK, I'll go get all the cases later and cite them, but, really, that's the law.) There are actually tseparateate but related probleproblemsems: first, that such a delegation puts legislative discretion into the hands of the agency, and, second, that it creates unreviewable decisions when implements.

This is a big deal when you get to regulatory applications of law. No agency should be able to rely on a vague standard to deny a permit simply because there are objective standards in the ordinance, statute or rule. That's true whether the standard is a comprehensive plan element or a criteria for a special exception.

But this is irrelevant to a CRA/blight determination, for one, simple reason: The Community Redevelopment Act vests LEGISLATIVE power, authority and discretion into the local government to make the blight determination. It's NOT a grant of administrative authority. This gets confused today because local governments have broad home rule powers, but back when the Act was adopted, it granted legislative authority and discretion. And the "blight" finding need not be supported by competent substantial evidence (an ADMINISTRATIVE standard), but only by some measure of evidence such that the determination is not arbitrary and capricious. (again I don't have the cite readily available, but I'm pretty sure that there was a Jacksonville case from the 50's or early 60's dead on this point).

So it seems that the entire case was litigated on a badly mistaken view of the structure of the CRA, leading to a mistaken notion of which "vagueness" test should apply, and also of the very nature of what kind of evidentiary inquiry was appropriate.

So, the case is probably irrelevant to future applications regarding eminent domain, but could leave a bad precedent on the vagueness issue.

Initiative is Not Available to Adopt/Amend LDRs! and Charter County Plans Can Supercede City's

In Seminole County v. City of Winter Springs, here's the opinion, the 5th DCA held that a county charter provision that over-rode the City's attempts to plan in annexed areas did not violate the "single subject" rule.

Here's what's interesting: the argument that won below was that the provision in the charter that held that the boundary could be adjusted only by an ordinance adopted by the commission "over rode" the charter's initiative provision -- which allows adoption of ordinances by the electorate. This "extra effect" was held by the trial court to violate the single subject.

Here's what's important: the Court held that Chapter 163's provisions for the adoption of land development regulations by the "local governing board" and definition of "local governing board" as the county commission means that the use of initiative to amend or adopt land development regulations is inconsistent with state law, and therefore prohibited!!!!!

So - a TON of local governments (especially coastal cities) have adopted restrictive charter amendments that required referenda for plan amendments or rezonings that increase density or intensity. Under the 5th's rationale, these are now illegal and unenforceable.

A blow for better planning and land use regulation and a swat at knee-jerk psuedo-democracy.

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).