ELULS.orgThe Environmental and Land Use Law Section of The Florida Bar
Section Reporter

April 2008

COLUMNS  
     

ELULS.org  Florida Caselaw Update
  Gary K. Hunter, Jr. & D. Kent Safriet

      

Agreements that require CIP Amendments are legislative in nature. D.R. Horton, Inc. v. Peyton, 32 Fla. Law Weekly D1496 (1st DCA June 18, 2007).

Developer D.R. Horton, Inc. challenged the mayoral veto of a resolution of the Jacksonville City Council, which had approved a “fair share assessment contract,” under which the developer was authorized to undertake a proposed development in the City. Under the City’s Charter, the mayor does not have the authority to veto council decisions that are quasi-judicial.

The 1st DCA held that the Council’s decision approving the developer’s fair share assessment contract was a policy decision that was legislative and not quasi-judicial in nature. The court reasoned that consideration of the developer’s fair share assessment contract required the Council and the mayor “to evaluate the likely impact of the contract on the City’s provision of local services, on its planned capital expenditures, and on its overall plan for the managed growth and future development of the surrounding area.” The decision to approve the fair share assessment contract “involved considerations well beyond [the developer’s] 150-acre development.”

Despite the requirement under Jacksonville’s code that the proposed development be consistent with the comprehensive plan, the Council approved a fair share assessment contract that would require an amendment to the capital improvement element of the comprehensive plan. An amendment was required because the developer’s proposed development required “such substantial transportation infrastructure improvements,” as provided by the terms of the developer’s fair share assessment contract with the City.  It seems under this analysis that in the 1st DCA the approval by a local government of a fair share assessment contract under Section 163.3180(11), F.S., is a legislative act if its implementation will require the local government to amend its Comprehensive Plan’s Capital Improvement Program or transportation element’s list of improvements.


A reviewing court is not required to defer to an administrative interpretation of a law or ordinance where the plain meaning may be applied. City of Coral Gables Code Enforcement Bd. v. Tien, 32 Fla. Law Weekly D2434 (3rd DCA Oct. 10, 2007).

A landowner, whose yacht was tied up in the waterway in front of his property but extending into the waterway in front of his neighbor’s property, was cited for violating a city ordinance. The ordinance prohibited any person from tying up a boat to waterfront property abutting the waterways within the city unless that person is the owner of the property to which the boat was moored. The yacht owner appealed to the Code Enforcement Board, which read the literal language of the ordinance to require ownership of the land to which the boat is tied and not the land in front of which the boat merely sits. The circuit court disagreed with the Board’s decision and held that, because the yacht extended over the neighbor’s seawall, the yacht owner violated the ordinance. On second-tier certiorari, the 3d DCA quashed the circuit court’s decision and found that “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.”

The City filed its own petition for certiorari, taking the side of the neighbor whose property was blocked by the yacht. Citing City of Hialeah Gardens v. Miami-Dade Charter Found. Inc., 857 So. 2d 202, 206 (Fla. 3d DCA 2003), the City suggested that the court defer to its interpretation of the ordinance. Finding the City read too much into Hialeah, the 3d DCA held that it is not required to defer to an agency’s construction or application of a law or ordinance where the court can interpret the plain meaning. Accordingly, the court held that the plain meaning of the ordinance requires it to quash the decision below.  In addition, the court noted that, “although legislative intent is not our polestar,” it doubted that the City was concerned about mega-yachts when the ordinance was adopted in 1958. Rather, the court found that the terms of the ordinance suggest a concern about boats being tied onto land without the property owner’s permission.

  

DCA remands for Volusia County to demonstrate its historic use of beachfront property. Trepanier v. County of Volusia, 32 Fla. L. Weekly D2197 (5th DCA Sept. 14, 2007).

Like much of Florida’s coastline, Volusia County has experienced hurricane driven accretion and avulsion to it beaches.  Due to the sudden loss of land, public use of portions of the beach and the County’s regulation of the public use shifted inland and onto the plaintiffs’ land. These owners of platted beachfront lots sued the County, alleging that the County improperly used their property by setting up public driving lanes and parking, absent any easement or property interest that would authorize such use. In its defense, the County claimed that the public had a right, by “dedication, custom, or prescription,” to drive and park on the beachfront property owners’ lots.  The County asked the court to establish an easement across the owners’ land and sought an injunction against the owners under the doctrine of “purpresture,” which the court explains is “an encroachment upon public rights and easements by appropriation to private use of that which belongs to the public.”

The trial court agreed with the County, ruling that the County “holds a superior claim to possession and use of the beach landward of the mean low water mark” to the spot where there is a “marked change in material or physiographic form, or to the line of permanent vegetation in accordance with the definition set forth in Fla. Stat. section 161.54(3) (2004).” The trial court permanently enjoined the property owners from “acting in any manner inconsistent with the free use of the beach by the public, including access by motor vehicle . . . .” The trial court also found prescriptive rights based on open and historic use of the beach.

The 5th DCA reversed, holding that there were genuine issues of material fact as to whether the public had been driving continuously on the subject portion of beach and whether the public’s use was adverse.  These factual issues precluded summary judgment in favor of the County’s prescriptive easement claim. The court held that the public did not have a right to use private owners’ platted lots of beachfront property on basis that lots were dedicated.  In addition, the court held that there were genuine issues of material fact as to whether the public had a customary right to use private owners’ beachfront property for driving and parking, and, if so, whether migration of the public's customary use of the beach had occurred.


3d DCA requires a reasonable amount of time for hearing presentations and holds that a facial challenge may not be raised in a petition for certiorari.  Hernandez-Canton v. Miami City Comm’n, 32 Fla. L. Weekly D2473 (Fla. 3d DCA Oct. 17, 2007).

Objectors sought certiorari review of city’s zoning resolution, alleging that the resolution had been overturned by an earlier decision of the DCA. The 3d DCA held that the city commission and circuit court erred in interpreting an earlier decision it had issued and, as a result of the prior decision, the zoning resolution was defective.

Notably, the DCA held that the commission’s allotment of eight minutes per side for presentations at the hearing regarding the zoning resolution was insufficient. While the DCA did not specify a specific amount of time, it required that, on remand, a reasonable amount of time shall be given to each side.

In their petition, the objectors raised a facial challenge to an ordinance. The 3d DCA reminded the litigants that a petition for certiorari is an improper mechanism for challenging the constitutionality of a statute or ordinance. Rather, such a challenge must be determined in the original proceedings.

 

4th DCA allows museum to bring consistency challenge. Stranahan House, Inc.  v. City of Ft. Lauderdale, 32 Fla. L. Weekly D2702 (Fla. 4th DCA Oct. 31, 2007).

This case is part of a long drawn out saga to develop a parcel of property known as the Hyde Park Market Site in Ft. Lauderdale.  The case pits three parties against each other:  The property owner, the City of Ft. Lauderdale and the Stranahan House, Inc. (Stranahan).   The Hyde Park Market Site is located adjacent to the Stranahan House, which is a historical museum and is located in the City’s historical preservation zoning district while the Hyde Park Market Site is located in the Downtown Regional Activity Center.

Following the property owner’s attempt to develop a 38 story condominium on the site, the City with assistance from Stranahan, sought to prevent the development by acquiring the Hyde Park Market Site through eminent domain.  Following the circuit court’s rejection of the City’s attempt to use eminent domain, the City entered into a Consent Final Judgment with the property owner which included among other things, the property owner to submit an alternative site plan.  The Consent Judgment found the original site plan complied with all land development regulations and was consistent with the comprehensive plan.  When the City approved the developer’s alternative site plan in accordance with the Consent Judgment, Stranahan sued alleging the alternative site plan was not consistent with the City’s Comprehensive Plan under § 163.3215, F.S.

The Circuit court dismissed the complaint finding that the consistency issues had been litigated and decided in the Consent Judgment.  On appeal, the 4th DCA held that the issues of consistency had not been previously adjudicated in the Consent Judgment, reasoning, in part, because the consent judgment contains no findings regarding the alternative site plan, nor could it have since the alternative site plan was not submitted to the City until after the Consent Judgment.  Thus, any findings in the Consent Judgment were only applicable to the original site plan. 

The Court further held that an agreement between the City and Stranahan, which authorized the City to act for Stranahan, extended only to the City’s action in acquiring the Site by eminent domain and did not give the City the authority to represent Stranahan with respect to any subsequent counterclaims or consistency issues.  Thus, the Court reversed the dismissal of Stranahan’s complaint finding Stranahan had standing to bring a consistency challenge against the alternative site plan under the statute. 

 
 

Gary K. Hunter, Jr. is a Shareholder with Hopping Green & Sams, P.A. in Tallahassee, Florida.  He received his B.B.A. and J.D. from the University of Georgia. 

D. Kent Safriet is a Shareholder with Hopping Green & Sams, P.A. in Tallahassee, Florida.  He received his B.S. from Clemson University and his J.D. from the University of South Carolina.  Mr. Hunter and Mr. Safriet practice primarily in the areas of administrative, environmental, land use and property rights litigation. 

 


 

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