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. 

Filtering by Tag: code enforcement

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.

3d DCA - Limits on the Use of Estoppel or Laches against Gov't in Code Enforcement

In Monroe County v. Carter the 3d DCA quashed the circuit court's quashal of a code enforcement order. The circuit court found that that the County was barred by laches or estoppel from enforcing the code against a ground floor (below flood elevation) rental unit in Ms. Carter's house. The 3d DCA disagreed and distinguished the earlier Castro decision becuase the unit here had never been permitted.

3d DCA – Code Enforcement - Right but messed up

Monroe County v. Carter, 34 Fla. L. Weekly D993 (Fla. 3d DCA 2009)

OK - this is a rewrite of my original post, which was based on an incorrect reading of the opinion.

The 3d DCA accepted 2d tier cert review of the a circuit court decision that dismissed the notice of violation in a code enforcement case for failure to cite the date the violation began. The violation discussed (there were 6, only one is disccussed) invovled improper creation of habitable space below the FEMA line.

The objection below was that without a stated 'start date' for the violation, they couldn't state certain defences. The circuit court bought that by adopting provisions from the Part II citation standards and applying them to the notice of violation requrements under Part I. The 3d correctly determines that this was wrong.

The core problem in these cases tends to be that people get written up for doing unpermited work that violates current FEMA/flood control standards and other related violations where the work was done before they bought the place. So the owner doesn't know when or how the work was done. Add in really poor records management by local governments, and you find that the owner can't find permit histories going back 20-30 years.

Mmost local governments adopted FEMA standards around 77-78, and amended them a bunch in the mid-80's, and again in the 90's and again in the last 5 years, with the standards getting more and more strict. Add in again the fact that the bulding code only provides exemptions/grandfathering for permitted work. Add in again that the building code and local codes (and decisions interpreting them) put the burden of proof on the owner to establish grandfathering.

You end up with a situation where totally innocent owners are tagged with violations and can't get the proof they need to show that the property is grandfathered - and the code enforcement people don't really have to prove that a violation occurred when the construction or activity was first done.

So - I'm guessing that the circuit court saw this as a fairness issue and put its finger on the scales by using the "date violation occurred" langauge in the citation section to put the burden on the local government to prove that a current condition was illegal when it started. The 3d not only throws the legal mechanism out, but takes the view that requriing the government to prove that a current, non-conforming situation was a violation when it began would be too burdensome.

Code Enforcement and the Fact Not Discussed

In City of Miami v. Cortez, the 3d District overturned a circuit court decision in an appeal of a code enforcement board "mitigation order."

The 3d found that the circuit court failed to comport with the essential requirements of law. It found that any objections to the testimony in the mitigation hearing were not preserved, and that due process had been followed.

Here's how the 3d characterized the background facts:

On October 3, 2003, the City’s Code Enforcement Board ("Board") held a hearing
where property owner Amado Sabina pled guilty to a code violation for
performance of work on a residential property without a final permit. The Board
entered an enforcement order on October 10, 2003. Property owners Sabina and
Eumelia Cortes were afforded 60 days to correct the violation or face a fine of
$250 per day.

The property owners failed to correct the violations
and fines totaling $105,750 were assessed. On June 2, 2005, the Board held a
mitigation hearing to determine whether to reduce the amount of the fines
accrued. All of the witnesses at the hearing were duly sworn. At the conclusion
of that hearing, the Board reduced the fine to $10,000 and entered a mitigation
order.


The property owners appealed the mitigation order to the appellate
division of the circuit court, arguing that the mitigation order should be set
aside because the city inspector had improperly delayed inspection for a period
of six months. However the Board had already accepted this argument in reducing
the fine to $10,000. The appellate division nonetheless reversed both the
enforcement and mitigation orders.


The 3d quashed the decision of the circuit court.

However, it's clear to me that the 3d didn't include the truly relevant facts or address the real due process problem.

I suspect that the owners thought that they had fixed the problem and were shocked that fines were still accruing - this happens ALL THE TIME in these cases. The issue is that these orders end up creating "running fines" and (I think unconstitutionally) put the burden of proof on the owners to demonstrate that the violation no longer exists. Once an order imposing fines is issued, the local governments claim that they are under no further obligation to investigate or to determine whether a violation continues.

When the violation is for work without a permit, the violation generally isn't fixed until a permit is issued, any remedial work is done, and the work is inspected and signed off. This creates a situation where the local government can leave a person in violation by delaying permit decisions or imposing improper conditions, by finding inconsequential problems in the inspection, or by not inspecting. And by not notifying the code enforcement people when the inspection is done.

It's quite possible under the fact here that the property owners in fact got a permit and did anything else they needed to do within the 60 day window, but that the inspections were delayed and then even after the inspection the fines were accruing.

I would argue strongly that if that is the case, then the code enforcement statute is being administered unconstitutionally. I KNOW that this happens every day.

And I'm having to speculate because the opinion in this case is so devoid of the truly relevant facts, but I suspect that this is what the owners showed to the circuit court. So, did the 3d District get it wrong? We really can't tell because the opinion doesn't give use the rel event facts.

LESSON: If a client gets into code enforcement problems, get in the board's face and start objecting to EVERYTHING from the first hearing. Object that the hearings violate due process because the written guidelines are inadequate or lacking; demand rulings on right to cross examine; object to every piece of written evidence that is offered (most of it is hearsay, lots of it is inadmissible). Object to the local ordinance if you can. And demand very specific findings from the Board or Special Magistrate regarding EXACTLY what actions need to be taken to correct the violation. And then appeal the VERY FIRST determination (the "violation" determination).

If it gets to a "penalty" hearing, make the same objections. Then enter evidence on the "four factors" in the section 162.09 regarding the amount of penalty.

The code enforcement system has turned into a maze of abusive traps because the processes are badly written, badly administered, and almost always applied against unrepresented respondents.

4th District - Court Enforcement Orders Cloud TItle

In Henly v. McDonald, 971 So.2d 998 (Fla. 4th DCA 2008), the court found that the existence of a code enforcement action against property constitutes a cloud on the title. This case involved a dispute over a home sale when the code enforcement action was brought while the property was under contract, but the key finding is critical in other areas.

By clouding title to the property, the imposition of a code enforcement order or lien impugns the property and therefore implicates the due process clause -- substantive and procedural - and could involve 42 USC 1983 - including damages if the order is improperly applied or prosecuted.

Section 162.06(5) provides that setting a code enforcement matter for hearing puts notice disclosure requirements on a property owner selling the property. Harm therefore can attach to the property owner based only on the code enforcement officer's non-noticed, non-hearing determination that a violation exists. The statute therefore creates the possibility of
a pre-hearing deprivation of property. This is in addition to the (uncorrected) problems in the statute and many ordinances identified in Massey v. Charlotte County and Wilson v. County of Orange.

2d DCA - Code Enforcement Costs/Liens - Strictly Construed

In Stratton v. Sarasota County, (which is a partial end to a long sad story), the 2d DCA held that the costs that the County could recover pursuant to Code Enforcement proceedings under Chapter 162 were strictly limited to the costs described in the statute. Essentially, the County tried to collect for administrative management/overhead costs in excess of the actual costs involved and the Court said no.

But the important issue is that the Court upheld the meaning of Article I, Section 18 by limiting Sarasota County's ability to levy fines in the code enforcement process to those expressly permitted by the statute.

Construction in Good Faith is not “Discontinuance” of a Non-Conforming Use

The Second District upheld a circuit court’s decision that a code enforcement action brought by the County because a landowner resumed a non-conforming use after it had been closed for over 6 months while under re-construction pursuant to building permits. There are some other intervening facts, and the Court rejected the circuit court’s treatment of them as mixed questions of fact and law, finding that the circuit court had reweighed the evidence. More reason why we need guidance on written orders.

The District Court’s opinion also recognized that review of the code enforcement magistrate’s decision was properly taken as an appeal.

3d DCA: Plain Meaning Trumps Administrative Interpretation

In another interesting opinion from the 3d DCA (who has replaced the 5th as the district court most likely to issue an interesting statement of land use law), we have City of Coral Gables Code Enforcement Board et al v. Tien.

Facts: One landowner has a yacht that is longer than his canal-front lot in Coral Gables is wide, and ties it up there. Obvious result: the bow or stern overhangs neighboring property. City has an ordinance that requires a person to own a lot to which they tie a boat (language is provided below). Neighbor complains, and a code enforcement officer cites the boatowner.

Then boatowner appeals the citation to the Code Enforcement Board. The Code Enforcement Board, advised by the City Attorney, reads the literal language of the ordinance to require only ownership of the property to which the yacht is affixed, not to require ownership of all lands that the yacht might then front, cover, or block, and dismisses the violation.

The neighbor then files for first tier certiorari. FIRST PRACTICE NOTE: This was wrong, procedurally. Review of the actions of a Code Enforcement Board that is acting pursuant to Chapter 162 is by appeal to the circuit court, not by certiorari. The circuit court on certiorari, decides for the neighbor, and the boat owner and Code Enforcement Board file for second tier certiorari to the District Court (this was procedurally correct, because there is no statute granting discretionary review authority of circuit court decisions to the district court).

Before getting to the opinion, here's the operative language:
It shall be unlawful for any person to anchor, moor or tie up any boat or craft
of any and every nature whatsoever to any waterfront property abutting the
waterways and canals within the city, unless he is the owner of the property to
which the craft is anchored, moored or tied up or is the lessee of improved
property having a dwelling structure thereon, under a written lease from the
owner of the fee simple title to such property or is the guest in the house of
the owner of improved property having a dwelling structure thereon.

The District Court grants cert and quashes the circuit court decision, with the following language:

We recognize at the outset that the scope of our review at this stage of the
proceeding is quite limited. Where, as here, “full review of administrative
action is given in the circuit court as a matter of right,” a litigant “is not
entitled to a second full review in the district court.” City of Deerfield Beach
v. Vaillant
, 419 So. 2d 624, 626 (Fla. 1982). However, where “there has been a
violation of a clearly established principle of law resulting in a miscarriage
of justice,” then we are authorized to reach down and supply relief. Allstate
Ins. Co. v. Kaklamanos
, 843 So. 2d 885, 888 (Fla. 2003) (citing Ivey v. Allstate
Ins. Co.
, 774 So. 2d 679, 682 (Fla. 2000)). As the court noted in Kaklamanos,
“‛clearly established law’ can derive from a variety of legal sources, including
recent controlling case law, rules of court, statutes, and constitutional law.”
Kaklamanos, 843 So. 2d at 890. To that list, we today add municipal ordinances.
Applying Kaklamanos, we conclude it would be a violation of “clearly established
law” and a substantial “miscarriage of justice” if this mega-yacht was banned
from the City of Coral Gables based upon this ordinance.
We are compelled to this conclusion based upon a plain reading of the ordinance.


SECOND PRACTICE NOTE: The court has given practitioners some very strong language to use here.. First, the 3d DCA is providing a supporting corollary to its opinions last year that the courts must stand ready to ensure that the laws are properly interpreted, and that the district courts are not potted plants that have to accept improper decisions under the "miscarriage" standard or based on their limited review. Auerbach v. City of Miami, 929 So.2d 623 (Fla. 3d DCA 2006), here's the link to the 3d DCA opinion; see also Osborn v. Board of County Comm'rs (Monroe). Compare the Fifth DCA opinion and dissent in Board of County Commissioners v. City ov Cocoa, where the court turned a blind eye to a clearly illegal annexation based on the "miscarriage" label.

What happens next in the opinion is equally interesting and powerful: a declaration for judicial autonomy in interpreting codes:
We note the City of Coral Gables has filed its own petition for certiorari
aligning itself with Bared. The City suggests, based upon earlier authority of
this Court, we must defer to its “superior technical expertise and special
vantage point” in interpreting this ordinance. See City of Hialeah Gardens v.
Miami-Dade Charter Found., Inc.,
857 So. 2d 202, 206 (Fla. 3d DCA 2003). The
City reads too much into our City of Hialeah decision. We are not required to
and do not defer to an agency’s construction or application of a law or
ordinance where we are equally capable of reading the ordinance
. Fla. Hosp. v. Agency for Health Care Admin., 823 So. 2d 844, 848 (Fla. 1st DCA 2002) (“[A] court need not defer to an agency's construction or application of a statute if
special agency expertise is not required, or if the agency's interpretation
conflicts with the plain and ordinary meaning of the statute.”). A plain reading
of the ordinance in this case requires that we quash the decision below. Holly
v. Auld
, 450 So. 2d 217, 219 (Fla. 1984) (“When the language of the statute is
clear and unambiguous and conveys a clear and definite meaning, there is no
occasion for resorting to the rules of statutory interpretation and
construction; the statute must be given its plain and obvious meaning.”)
(quoting A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla. 1931)). We feel
confident the City knows how to properly craft an ordinance to protect its
citizens from unwanted intrusions by mega-yachts if it so desires.(emphasis added).


THIRD PRACTICE NOTE: Believe it or not, this is pretty hot stuff. Whenever you challenge a local decision, the local government attorney's are constantly throwing Hialeah, Palumbus, and a handful of other "deference to local agency" cases on the table for the proposition that a local agency or administrator's action can only be overturned if it involves a "clearly erroneous" interpretation of the law, regardless of how clear the law is. While this decision doesn't quite reach that issue directly, it does provide ammunition for the proposition that a reviewing court can apply its own interpretation of clear and unambiguous ordinances.

3d DCA - Equitable Estoppel Protects 25 Year Old Encroaching Addition

In a case that demonstrates why we really need specialized land use courts in this state, the 3d DCA issued an opinion that (correctly, in my view) holds that equitable estoppel prevents the County from code enforcement against a family room added 25 years ago, which now (and maybe then) violates rear setback requirements. The case is Castro v. Miami-Dade.

The facts are pretty clear, though the law isn't. Since 1983, the Castros have owned a townhouse that was built in 1980 . The townhouse came with an addition in the form of a family room that comes to about 5 feet from the rear setback. The County granted building permits to the prior owner in 1980 or '81 to build the addition, and to the Castros in 1993 to reroof the family room after it was damaged by Hurricane Andrew.

The law is where this case becomes problematic. It "appears" that the "older" zoning required 14 foot rear setbacks; everyone seems to assume that the addition had to have violated them. No one appears to have looked at the zoning resolution/special exceptions that permitted the entire development to see if they provided different setbacks. Then, in 2003, the County adopted new setback requirements of 25 feet.

An Code Enforcement inspector cited the Castros for building in violation of the Code. When they proved that the addition had proper permits, and the zoning staff recommended no enforcement, he went back and charged them with "maintaining" the family room illegally in violation of the NEW 2003 zoning regulations. The hearing examiner agreed and found them in violation, and the Castros appealed.

The circuit court (without a written majority opinion, apparently) concluded that the Castros couldn't claim equitable estoppel because it appeared that the family room was always illegal. The 3d DCA reversed, finding that the circuit court departed from the essential requirements of law in refusing to apply equitable estoppel.

This opinion was written by Judge Rothenberg, who wrote the opinion affirming the denial of cert by the circuit court without an order to show cause where she found that the petition could not establish "undue hardship" in Fine v. Coral Gables, and who dissented in the "truck" case, Kuven v. Coral Gables. I want to state that I think Judge Rothenberg is a good judge and is trying hard to figure out the right way to handle these cases, and is relying on good law. I also want to say that her opinions (in my opinion) demonstrate how and why land uses cases are so hard, and why they need a special set of courts.

The problem in this case is the range of complicating issues that simply aren't discussed at all, because (clearly) neither the circuit court nor the district court understands them.
  • Exactly how do Miami-Dade's "nonconforming" building regulations work? The district court opinion appears to indicate that they thought that the 2003 code provided no "grandfathering" at all. Was that the case, or was the problem that the County maintains that the structure could not be grandfathered because any permits granted to it were granted illegally?
  • There is NO discussion in the opinion of how the "illegality" exception to vested rights/equitable estoppel should or should not be applied. Instead, the opinion goes straight to fairness. Fine, insofar as it goes, but as any kind of precedent, the unanswered questions may swallow the holding.
  • Is the court holding that local governments are also estopped from claiming illegality as a defense at some point in the future when they have issued building permits? Is there some presumption that the government acted legally and that there was some earlier interpretation of the earlier zoning regulations that has to be presumed unless conclusively disputed? If I cite this case, I will say that it stands for that proposition, but the opinion doesn't say this clearly.
Let's be clear: I think the basis outcome is right. For the county to come back almost 30 years after it granted a building permit and claim that it had to be illegal is vile, and it puts the burden unfairly on the homeowner.

I see this frequently now: for example, local governments are running around and looking at ponds or ditches that may have been installed 30 or 40 years ago prior to local or state regulation and citing them with code enforcement violations for not having permits. They then try to make the landowner prove that the ditch/pond was permitted when it might have be installed prior to permitting. Unless the landowner can find aerials or some other evidence that the ditch/pond was there prior to the regulations, the landowner is fined for violating the ordinance, even if there is proof that the pond existed for years before the landowner bought the property.

Judge Rothenberg and the other members of the panel clearly see the fairness problem, but because they don't know zoning and land use, the opinion doesn't clarify the law the way it should. We need judges that "get" land use hearing land use cases.

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