LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

Fourth DCA overturns mining permit as inconsistent with Plan

In 1000 Friends of Fla. v. Palm Beach County et al, the Fourth District adopted a strict interpretation of the term "only" in a plan policy and overturned the circuit court's decision that a mining permit was consistent with the policy.

The policy permits mining in a certain areas "only" for public road building, agricultural and water management purposes.  While the FDOT was the primary intended customer, the development order did not restrict the sale of mined aggregate for the stated uses, but only required annual reporting of sales and customers.  There was deposition and trial testimony that the company could not track the use to which sold aggregate was put.   Based on that, the 4th District held that the permit was inconsistent with the plain language of the policy and also reaffirmed that reviewing courts do not have to give deference to local government interpretations of their plans.

I am sure that this is not the last we'll hear of this matter.  These mines have significant strategic importance because they would produce high-quality aggregate needed for highway construction and the nearest alternative sources (in the Dade County lakes belt) may be shut down on federal permitting issues.  The other major south Florida source is in Lee County - but there the County Commission is waging war on aggregate producers and trying to prevent any new aggregate mines through aggressive comp plan policies and land development regulations.

So, the policy will be rewritten and adopted without the restrictive provisions, we'll have another fight, and if the lack of permitting will affect major road construction, I predict we'll get legislation next year that preempts local comprehensive plans and regulations of strategic aggregate mining operations.

More bills on their way to the Governor

Ok, no analysis here, but I've identified a number of bills of interest (well, maybe) to land use practitioners that passed both houses and are on their way to the governor.  I've tried to provide links to the PDF versions of the enrolled bills; they are from the Senate site (even for the House bills), which is a little easier to use.

In no particular order:

My favorite -- Bill that reenacts the burden/standard of proof in impact fee cases from the 2009 legislation.

Bill that clarifies (probably expands) the scope of the Ag exemption for stormwater management and wetland permitting.  I think this is an outgrowth of the Duda Ranch case from last year.

Bill that limits building official's authority to require inspections of residential structures when a permit is requested for other structures on the same site.   There MUST be a horror story behind this one.

Bill addressing affordable housing agencies, trust funds AND GMA requirements in 163.3177.   The planning aspects seem benign; I can't tell about the rest.

Bill addressing substantive and procedural issues with the Florida Building Code.    This includes some things that look complicated with respect to the adoption of national codes and standards.

The "Vacation Rentals" Bill.   The preemption only applies to new regulations and frankly I don't know if the langauge actually prevents a local government from requiring vacation rentals to be in commercial zone districts.

Inside this Bill that requires e-filing by state attorneys and public defenders is a new requirement for attorneys to file all petitions and pleading with DOAH electronically

I'm sure that there are other fun bills that I've missed - let me know your favorites.

Best
Robert

Ah, DCA, we hardly knew ye

Here's a  link to the bill that will transfer DCA's community planning functions (among others) to the "Department of Economic Opportunity."    The Florida Building Commission goes to DPBR.  Emergency Management (and the scary powers of FEMA, etc.) go to the Office of the Governor.   There is a "transition period" until October 1 to accomplish the mass transfer of functions (and, presumably, to spend all the supposedly saved tax funds on new business cards and letterhead).

I can't even bring myself to comment.   Everybody pray that we don't get a major hurricane this year.

Major amendments to the Growth Management Act

Wow.   Major amendments to the Growth Management Act were apparently adopted by the Legislature on Friday, at the tail end of the session.    It's over 300 pages, so analysis will have to wait.

Here's a link to the bill, (HB 7207).
Behind the scenes, there was major confusion on Thursday.   The House had adopted a version of the bill two weeks ago (HB 7129).  It was in a Senate Committee, along with a complete amendment from Bennett that (apparently) represented the consensus of what should pass.  However, Bennett's own bill was also waiting for action by the entire body, with a separate set of amendments that were similar but not the same.   On Thursday, the Senate took up Bennett's bill, passed the amendments and approved the amended bill.  Someone then realized that the Senate had in effect passed the wrong bill. 

On Friday, a conference committed report on a different bill was brought forward which had all of the agreed on language (that was also sitting in the Senate committee as the amendment to HB 7129).  The House passed, it, and then the Senate passed it as well. 

Given the other fights between the House and Senate on Friday, this demonstrates a significant amount of consensus.

Irony - Legislature Passes Unnecessary "Savings Bill"

On April 27, the Governor signed Chapter 2011-14, effective immediately.  That bill was almost entirely directed at saving the 2009 amendments to the GMA, which had been invalidated for imposing a mandate to amend plans on local governments.  Here's a link to the Chapter law.     On May 2d, the 1st DCA overturned the circuit court decision invalidating the 2009 Legislation -  here's the link.    The court's ruling was based on its determination that the Plaintiffs named the wrong defendants and failed to name the correct defendant - the state land planning agency.   Irony, indeed.

I believe that any issues from the 2009 legislation not dealt with in the "savings bill" have been addressed in the later growth management act amendments.

Legislation 1 - Bert Harris Act amendments

Some (relatively) minor amendments to the Bert Harris were passed.  Clarifies the definition (structurally) of an "existing use," shortens the time for the government to provide the "ripeness"/settlement alternatives and clarifies language about that provision, clarifies the waiver of soveriegn immunity and - most importantly- mostly undoes the Hall's River case holdings on the "application" of a statute, rule or ordinance. 

Attached is  a link to the bill text that went through the House and Senate and was enrolled by the House.  I believe that the Senate's final version was the House's version and the bill will go to the Governor.

1st DCA - ALJ/Admin Comm'n Misapplied Law and Evidence in Finidng Small Scall Amendment "Not In Compliance"

In Katherine's Bay, LLC v. Fagan and Citrus County, the 1st DCA overturned the Administration Commission Final Order, adopting a Recommended Order issued by a DOAH ALJ, that found a small-scale plan amendment permitting an RV park to be "not in compliance."

The Court found that the ALJ violated the applicable rules of statutory interpretation (that the specific governs over the general) by finding that the amendment violated a general coastal/environmental policy when a more specific policy addressed the location of RV parks.   Again, we see the 1st DCA limiting the strict scrutiny language of Machado, which states the over broad position that every development order must comply strictly with each and every provision of the comprehensive plan. 

The Court also found that the ALJ make a determination that the amendment was not "compatible" without competent substantial evidence.   This is another important aspect of the case:  the Court rejected the ALJ's acceptance of the lay opinion of the challengers that a mobile home park would have adverse impacts on the area including light pollution, traffic, and negative impact on housing values.   The Court is, in effect, setting forth fairly stringent requirements for evidence regarding compatibility that requires expert testimony on most aspects commonly used to claim that uses are not compatible.  The Court specifically rejected any analysis that the RV use was "inherently" incompatible with  existing residential uses simply because it was different and more intense.

Important reading for future cases.

1st DCA - "Reasonableness" Must Be Used When Interpreting Plan Provisions

In Arbor Properties et al v Lake Jackson Protection Alliance et al, the 1st DCA overturned the trial court's determination that a PUD approval vioated certain watershed policies of the Leon County Plan.

This was a classic problem of "strict scrutiny" rules under Machado v. Musgrove creating an absurd result.  The Leon County Plan Conservation Element includes special provisions that apply to developments in the Lake Jackson watershed, including on that required the land development regulations to have special designations for the watershed that would effectively preclude residential development.  However, one of the Future Land Use policies indicates that the designation requirements are not intended to apply in "closed sub-basins" -  basins that don't discharge water into the Lake, even though they are within the general Lake Jackson drainage basin.

Opponents challenged and convinced the trial judge that because the FLU policy did not specify that it was intended to create an exclusion to the specific Conservation Element  policy (it was simply included a a sub-policy below the general policy), it didn't have that legal effect.

The 1st DCA ruled that the entire set of policies had to be read together and that in that light, the only reasonable interpretation was that the FLU policy was intended to create an exception to the Conservation Element policy, and was consistent with its intent.  Supporting this analysis, the Court said:

The Florida Legislature has established that in reviewing consistency, a court may consider the "reasonableness of the comprehensive plan, or element or elements thereof, relating to the issue justiciably raised or the appropriateness and completeness of the comprehensive plan, or element or elements thereof, in relation to the governmental action or development regulation under consideration." § 163.3194(4)(a), Fla. Stat.
Here, the trial court’s order incorrectly reviewed the development order and the Plan by neglecting to consider the “reasonableness of the comprehensive plan, or element or elements thereof.” By reviewing the applicable provisions of the Plan as a whole, the most reasonable and holistic interpretation, based on both the text and the synthesis of the document, we have no doubt that the development order is consistent with the Plan. This is necessarily so, because when read in pari materia, it is clear that the Plan and its elements provide that within certain Zones that actually discharge rainwater runoff into Lake Jackson, Leon County has established much more stringent development limitations for one primary purpose: to protect Lake Jackson from polluted rainwater runoff


It is hard to underestimate the importance of this decision to landowners/developers.   For years, neighbors and local government attorneys have used the "each and every element" language in Machado to argue that development orders must be consistent with unreasonable, atomic analyses of particular plan provisions - which can easily be taken out of context.  Every land use lawyer in Florida knows the result:  every complex plan in the state has provisions that can be used to defeat ANY development order at any time through an unreasoning application of the consistency doctrine and vague and subjective plan provisions.   This opinion is a strong stake in the ground that "strict scrutiny" must be balanced by a reasonable application and result.

The Court went on to reject an argument that this interpretation would create other "absurd" results in applying the Plan - citing not only the speculative nature of those claims, but also stating that the "absurdity" doctrine in statutory construction should be applied restrively. 

Back in Blog

Hi all -

After a long (too long) hiatus, I'm back blogging. I'm pretty much caught up through 2009 plus 3d DCA cases (some pretty important) for 2010. I'll work on getting some of the more important land use cases from other Districts up in the next few weeks.

Thanks to everyone who encouraged (well, in some cases practically threatened) me to get the blog going again.

Robert

AMAZING 3d DCA Upholds Circuit Order Requiring Approval of Plan Amendment and Zoning

In the frankly astounding case of Village of Pinecrest v. GREC Pinecrest, the 3d DCA upheld a lower court decision that reversed the Village's denial of a plan amendment, rezoning and site plan approval. The amendment and development orders would have permitted an 18 unit housing project.

In discovery, the Village admitted that the Plan Amendment - and the project - were consistent with the comprehensive plan. Apparently the project required a future land use map amendment that brought the map into consistency with other policies, and the project was totally consistent with the other policies an map.

The Village, in effect, claimed that it had complete legislative discretion to deny the FLUM amendment and therefore the development orders even if they were otherwise consistent with the Plan. The circuit court disagreed and the 3d DCA upheld the circuit court.

This is a MUST READ. The facts may end up unique, but the case is the first case that establishes a critical proposition: that local governments may be obligated to adopt amendments and development orders that are consistent with their Plans.

Milan Investment Group v. City of Miami/Downtown Development Authority

In Milan v. City of Miami et al, the 3d DCA held that a challenge to the establishment of the City's Downtown Development Authority was precluded by an earlier decision, but that challenges to the annual millage rate set for the authority were not governed or precluded by the earlier action.

This case will be interesting to follow when the challenges to the millage are adjudicated and then appealed.

Monroe County v. Cisneros

In Monroe County v. Cisneros the 3d DCA reversed a writ of mandamus regarding code enforcement matters while the same issues were pending appeal.

Like the earlier Dade County and Sunny Isles cases, what we find here is that the circuit courts need more presribed methods for granting stays of local administrative orders that are pending appeal. In code enforcement cases - which are subject to appeal rather than certiorari - there actually is a process under the Fla. Rules of Appellate Procedure, but they are very confusing. If a certiorari action is filed, there is no statutory or rule authority for a stay.

So - again - what we need is legislation providing more effective judicial relief in cases involving local administrative actions -- perhaps the legislature could make quasi-judicial orders of a local administrative body subject to appeal pursuant to 120.68.

Dade County v. Wilson

In Dade County v. Wilson the 3d DCA reversed a temporary injunction issued to bar enforcement of a code enforcement order to cut off electricity to a building for safety violations. The District Court found that Wilson should have exhausted his administrative remedies and did not.

This is another case where the lower court granted an "improper" form of relief to prevent a perceived abuse of the administrative process. What this shows (to me) is that the forms of judicial review currently available are insufficient to provide justice to citizens, and that the circuit courts will (sometimes) risk the sting of later reversal to provide relief where they believe justice requires it. More reason to provide more effective judicial review and supervision in the first instance.

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