2d DCA Upholds Issuance of Permits to Phosphate Mine; Clarifies Standing and Cumulative Impact

Peace River/Manasota Regional Water Supply Authority et al v. IMC Phosphate et al, 34 Fla. L. Weekly D348 (Fla. 2d DCA 2009)

Charlotte County v. IMC Phosphate et al, 34 Fla. L. Weekly D357 (Fla. 2d DCA 2009)

In Peace River/Manasota Regional Water Supply Authority et al v. IMC Phosphate et al, the Court found that the users of waters below a proposed phosphate mine had standing to challenge the permit (well, duh). The Court also held that the DEP’s approach to dealing (or not dealing, from the petitioners' point of view) with cumulative impacts was legally justified, particularly by focusing on the statutory language regarding “adverse impacts” and the agency's authority to interpret the statute. The Court noted that reasonable assurences had to be made to address "adverse impacts" and not all impacts.

In Charlotte County et al v. IMC Phosphate et al, which involved the same permitting decision but different parties, the Court held that DEP did not violate Chapter 120 or due process by remanding the ALJ’s recommended order for additional findings regarding potential permit conditions. In effect, the DEP action allowed the applicant to add evidence regarding additional mitigation conditions that would allow the permit to be issued. The Court rejected the claims by Charlotte and Sarasota County that this action illegally gave IMC the opportunity to amend its application.
What is very interesting and critical in this decision is the Court’s recognition that under the permitting process, “The mining of phosphate is statutorily regulated, not because it is illegal, but rather to insure that the business may operate effectively without harming the public or the environment.” This is clearly true of almost any permitting process. The Court’s position is that this allows the agency to issue a permit under such terms as may comply with the statutory requirements, even if those terms are not all found in the initial application.
Critical to the decision was that DEP determined that the ALJ had misinterpreted and applied policy with the result that the relevant issues were not fully explored in the first hearing and order.

1stDCA Totally Screws Up the Analysis in a Bert Harris Case – [but Probably Reaches the Right Result]

City of Jacksonville v. Coffield, 34 Fla. L. Weekly D704 (Fla. 1st DCA 2009)

Well, the headline’s not totally fair. The Court properly got that a successor landowner could maintain the suit – and they got the right result. But in the process, the Court totally screwed up the analysis.

The case involves the City of Jacksonville abandoning a public street to a private homeowner’s association- a process that is not the same as vacating the street. When the street was abandoned, the private HOA refused to allow and adjoining landowner access to it. The result of the HOA’s refusal to permit access was that the landowner was unable to proceed with an 8 lot subdivision of the adjoining land.

The landowner sued the City under the Bert Harris Act, claiming that the street abandonment inordinately burdened its “existing use” in the subdivision. Under the definitions in the Act, the subdivision would be an existing use if it was a “reasonably foreseeable, non-speculative land use, suitable for the real property, compatible with adjacent uses and that had raised the fair market value” of the land. Under one of the two tests for an inordinate burden under the Act, the land would be inordinately burdened if the owner was permanently unable to attain reasonable investment backed expectations. However, the Act applies only where the “specific action of a governmental entity” results in an in ordinate burden.

The problem here is that the Court totally confused the issues. It did not deal at all with the simple fact that the ultimate action that prevented the subdivision was not the abandonment of the street, but the HOA’s subsequent refusal to permit access. The court then got hung up on the fact that the abandonment was pending when the transaction was finalized , and held that the landowner could not have reasonable investment backed expectations where the action was known. Problem: this violates the US Supreme Court decision in Pallazzolo v. Rhode Island, where the Court held that a property owner’s RIBE are NOT automatically frustrated by the existence of a regulation when the property is acquired. See also the Florida case of Vatalaro v. DEP.

Further, the Court mixed up the impact of the reasonable investment backed expectation analysis, which applies only to one prong of the “inordinate burden” test, with the “reasonably foreseeable” analysis – which applies to whether the landowner could reasonably expect the use without the government action . The whole definition of a “reasonably foreseeable use” goes to the question of whether, immediately before the government act, the value of a particular use would be part of the valuation of the property – that is, whether the use would be included if the property were valued for eminent domain.

Practitioners need to focus on the clear distinguishing characteristic here: that the ultimate action was private, not governmental, and that the uses were not protected against that action.

1st DCA Dismisses Attack on Affordable Housing Ordinance for Lack of Standing

Fla. ome Builders, Inc. et al v. City of Tallahassee, 34 Fla. L. Weekly D1096

An individual, a homebuilder with an affected project, and a group of industry representatives filed a declaratory action against Tallahassee’s affordable housing (forced inclusionary zoning) ordinance. The trial court upheld the ordinance.
The individual had been found not to have standing and did not appeal. The affected builder had separately announced its intention to abandon its project, though how this become part of the record is not stated. The 1st then found that the record was insufficient to allow the Florida Home Builders and Leon County Builders to have standing because the record did not disclose how a significant number of their members might be affected.
This is a very disturbing ruling and clearly portends more contentious litigation over these types of issues in the future. Landowners and builders should have standing to challenge these ordinances BEFORE they are faced with a denial for refusing to include affordable housing that the government is trying to extract from them. Creating standing barriers for the organizations that represent them puts an unfair burden on individual builders.
This only invites more legislation like this year’s impact fee statute.

Fifth DCA Reduces Standing in 163.3215 Challenges to a Pleading Exercise

In Save the Homosassa River Aliance v. Citrus County, the 5th District dramatically expanded the scope of standing under section 163.3215, essentially eliminating any meaningful limitation from the language that requires a plaintiff to claim and demonstrate impacts to an interest protected by the plan that exceeds that of the general public.

The challenge involved a rezoning that increased density, from 15 to 87 units.

In reviewing the cited allegations of the complaint, at least one of the plaintiffs probably alleged sufficient standing based on potential traffic impacts to a hurricane evacuation route. But the rest of the allegations are just junk - claims that the plaintiffs enjoyed canoeing on the river that are not then supported by any claim of particular plan policies that protect those interests and that would be violated by the development order.

In order to gut the definition of "aggrieved or adversely affected" in the statute, the court sets up a straw dog of a "unique" interest or impact - which is clearly not required, and then allows "any" impact to "any" interest:

The allegations show that the Plaintiffs all have a direct and demonstrated
concern for the protection of the interests furthered by the comprehensive
plan that would be adversely affected by allowing a development that violates the plan.
An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a
"unique harm" limitation onto the statute would make it impossible in most
cases to establish standing and would leave counties free to ignore the plan
because each violation of the plan in isolation usually does not uniquely harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right.

But for the most part, the allegation in the complaint cited by the Court didn't claim that the development would harm the protected interests that were claimed in any meaningful way. The court's attempts to distinguish the earlier Keyser and Putnam County Envt'l Council opinions are simply unconvincing.

The REAL problem is that the courts now permit "strict scrutiny" of the plan that doesn't discriminate between the broad language of goals or objectives, and many totally subjective policies. There is no way for ANY development to be consistent with most plans if every part of the plan is read expansively.

Read the dissent to this case. What's coming is an explosion of cases that will essentially halt any development that anyone doesn't like for as long as the NIMBY-neighbors can afford to litigate.

2d DCA - Standing for Cert Review Must Be Established at Hearing

In an opinion certain to create further chaos before local commissions, the Second District in City of Ft. Myers v. Splitt et al, held that certain citizens and citizens groups had not established sufficient standing to maintain a certiorari challenge to the approval of a PUD ordinance.

The City approved a PUD. Neighbors and activist groups opposed it at the hearing, then brought both a certiorari challenge and a 163.3215 consistency challenge, which was later dropped.

The City claimed before the circuit court that the various petitioners had not demonstrated facts sufficient to establish standing under Renard v. Dade County for determining whether special damages are present. The Petitioners disagreed. The Circuit court found that the 163.3215 definitions of affected parties governed and ruled for the Petitioners.

The Second DCA found that once the consistency challenge was dropped, the Renard standing test applied, and that the facts in the record could not establish standing per Renard. The Court found:

We reject any suggestion that Mrs. Splitt et al. had standing even under
the more restrictive requirements of Renard and that the circuit court's failure to
apply the correct law therefore was harmless error. Standing under the Renard
special damages test is typically based on some impact on the litigant's
interest as an owner of property. See, e.g., Kagan v. West, 677 So. 2d 905,
908 (Fla. 4th DCA 1996); Pichette v. City of N. Miami, 642 So. 2d 1165,
1165-66 (Fla. 3d DCA 1994); State ex rel. Gardner v. Sailboat Key, Inc., 306
So. 2d 616, 618 (Fla. 3d DCA 1974). There is no warrant for concluding that
if the circuit court had applied the correct law, it would have determined
that Mrs. Splitt et al. established their standing under the special damages test

Emphasis added.

Two critical problems will be accentuated by this decision as written. First, where a local ordinance does not specify who is a party and who has standing to appeal, a bunch of time will have to be spent establishing standing facts before the local commission. You can just see the issues - neighbors will quite properly start demanding 20-30 minutes so that they can enter sufficient facts to establish standing/party status.

Second, the Second District was clearly led into mis-stating or mis-interpreting the Renard rule as being somehow tied to "ownership" when it clearly was not. The Renard test turns on whether the complaining party can establish an interest that is protected by the ordinance involved, and affected by the decision, to a different extent than the community at large. Renters and frequent users of property (or roads, etc.) affected by a decision could establish such interests. Furthermore, nothing in Renard would prevent associational standing as otherwise established in Florida law.

Illegal Exactions Protected by Bond Validation

In Frederick et al v. Northern Palm Beach County Improvement District et al, the District Court upheld the circuit court's dismissal of claims raised by various homeowners who claimed that they were subjected to unconstitutional exactions.

The homeowner's predecessors in interest (the developer) cut a deal with the county to set up an improvement district to fund not only the roads internal to the project, but also to build a major section of arterial road. While the project was still under the developer's control, an assessment was levied (for 20 years) against property in the development and the bonds were validated.

None of the other developments who benefit from the improved major road were assessed. Later, homeowners subject to the assessment -- understandably annoyed when they realized they were paying for infrastructure for the entire area, and effectively subsidizing the other developments-- sued to establish that the assessments were illegal because they were not proportionate to the impacts of the paying development.

The circuit court dismissed, holding that the statute of limitations had run the validation of the bonds precluded later challenges to the assessments. The District Court affirmed, holding that the homeowners were bound by their predecessor's knowledge of the date of the validation/action.

In the case now before us, we must balance the interests of the Homeowners in
receiving notice of the exclusive nature of the Unit 18 assessments against the
public policy concerns highlighted in H&B Builders. Weighing these competing
interests, we find that, on these facts, the Homeowners interests are outweighed
by the need of the District for certainty in creating water management plans and
funding those plans. As a result, the approval and creation of the assessments
and impact fees here by the District provided sufficient notice to then existing
and future homeowners of their obligations. This is true even if the assessments
and impact fees were improperly levied. See Ves Carpenter, 422 So. 2d 342;
Spring Lake Improvement District, 814 So. 2d 1077.

So, clearly, sue before you buy - or at least be sure that your developer did.

Court permits creation of "aspirational policies" in comp plans

In Indian Trails Improvement District v. Department of Community Affairs , the 5th DCA approved the County's effective planning-based takeover of an independent utility's franchise area by creating a new category of "aspirational policies" which the local government can adopt with no supporting data and analysis.

What is an aspirational policy? Why would it be needed in a comp plan? What happens when the local government starts giving it regulatory meaning as justification for other actions?

On the other hand, the Court did hold that indirect impacts on a business or other interest can be sufficient to establish that a person is "aggreived or adversely affected" for standing.

Failure to Appear or Raise Issues at QJ Hearing Does not Preclude Standing under 163.3215

In Dunlop v. Orange County, the 5th DCA held that a aggreived neighbor is not precluded by waiver from demonstrating standing and raising issues in a de novo proceeding under 163.3215 for failure to do so in the quasi-judicial proceeding before the local agency.

Yeah, it's obvious: if you have a de novo hearing, all of the issues are de novo. Didn't stop Orange County from claiming waiver and preclusion to the apparently clueless circuit court.

Just another example that the circuit courts (improperly, in way too many cases) trust the positions of local government attorneys over their private counterparts, whether they are representing developers or neighbors. The result: effectively unreviewable discretion. De novo proceedings under 163.3215 are one of the exceptions -- too bad the courts refuse to give effect to the 2002 amendments and allow landowners to challenge improper interpretations of the plan to deny development orders.

Important if Confusing Administrative Appeal Standing Case

In Jupiter Inlet District v. Thibideaux, the 4th DCA issued an important but confusing ruling that confirmed that the District had standing to challenge a dock permit but did not have standing to challenge on appeal the DOAH Admininstrative Law Judge's determination that the dock violated a riparian line standard because it was not affected by that aspect of the dock.

Under the 4th DCA's intepretation of standing to challenge an administrative decision, a party with substantial interests that create standing to participate in the 120.57 formal hearing must demonstrate a substantial inteterst that is negatively affected for every ruling that the party wishes to challenge.

This seems to be a fairly radical extension of the LEAF and O'Connell cases (which have been discussed in earlier posts), and could create serious complications to challenges to jurisdiction or other procedural matters on appeal. Anyone who works the APA side of things should track how this case is used in the future.

Standing in Plan Challenges - Just Working in Jurisdiction Isn't Enough

In Potiris and Novack v. Dep't of Community Affairs, the 5th DCA held that simply working in a jurisdiction is insufficient to demonstrate that one does business there for standing purposes in a plan amendment challenge.

Practice tip: if you need to establish standing and don't own property, at least rent a post office box and pay occupational license fees to the jurisdiction

Annexation not Compact, but What About Standing?

In City of Center Hill v McBride, et al, the 5th District upheld a circuit court's quashal of an annexation ordiance on certioriari review (I know, should be illegal but it isn't), based on agreeing with the city that the annexed lands (to be used for a limerock mine) were not sufficiently compact (described by the challengers as a "ballooon on a string").

My question is how these unincorporated residents met the requirement of the statute that requires a demonstration of material injury.