Sunset Lawsuit Ruling and 11/6 Commission Item re Appeal

(Note: This was originally posted on 11/16 but I am bumping it up so that it appears at the top of the blog. I noticed some heavier than usual activity on this post today. Just a few minutes ago, someone posted regarding a similar situation in Boca Raton.
So, here is the entire post with the new comment, along with my response)

Judge Fine of the Fifteenth Judicial Circuit issued his final ruling on October 26th. This ruling was received by the City on October 29th in the City Attorney's office. There is a request on this coming agenda (New Business - Item E) for the City Commission to authorize and appeal of the Circuit Court's final judgment. Furthermore, the City Attorney recommends that the City retain the law firm Casey, Ciklin, Lubitz, Martens and O'Connell to represent the City and requests that the Commission authorize the Mayor to request support from the Palm Beach County League of Cities in pursuit of this appeal.

This is far from a victory for either the Save our Neighborhood, Inc PAC or the City. Judge fine, in his ruling, makes some fine (eh hem) distinctions regarding the various issues involved and I think that it is important to highlight those here. So, I will go page by page of the ruling in order to give my assessment and perspective on the issue. It is important to note that the writ of mandamus - an action that would require the City to act to put the items to a referendum - was denied. The order essentially sends back the matter to the City Commission for a determination of the number of parcels affected by the land use plan change. Below is a highlighted version of the City Attorney's memorandum. That pretty much speaks for itself, so we will move on to the actual ruling. Remember to click on the images for greater detail.

Well, let's start at the beginning, a very good place to start. First of all, remember that I am not an attorney and do not pretend to be one. What follows are only my opinions on what was actually determined here.

In the above, note that the court "partially grants" the petition regarding the two ordinances related to the Future Land Use Plan (FLUP) change. Furthermore, the court DENIED the similar petition regarding the rezoning ordinance (which will be explained later) and DENIED the Writ of Mandamus related to the City submitting the petitions to the Supervisor of Elections. This is no where near total victory for the Save Our Neighborhood (SON) PAC. As we will see, the major issue framed by this ruling is the determination of the number of parcels affected by the FLUP change ordinances by the City Commission - which I believe to be a meaningless distinction.
There were two ordinances related to the FLUP change - 2005-54 and 2006-04. These ordinances changed the land use designation to low-density multifamily residential. The reason for the two ordinances is that the first one in 2005 dealt with the prospect of this being considered a "small scale" amendment by the Department of Community Affairs (DCA). Traditionally, this organ of the State considered FLUP changes to a parcel of less than ten acres and less than 100 potential residential units as small scale amendments. These could be batched individually and the changes incorporated on the FLUP map without specific State of Florida review. However, DCA, in reaction to political pressures (some applied locally, I am sure) and in response to the boom residential market at the time, chose to consider this a large scale amendment. On this page the court is basically reviewing the history of the process here and saying that the change was incidental and these are essentially the same ordinance. The distinction is made here since the petitioner (SON) did not include the later ordinance in the lawsuit - but the judge is saying that didn't matter.

It's also interesting to note that the court is saying that state law is indeed superior to provisions in the city charter. As such, it is the city's position that the state statute bars a referendum attempt due to it's prohibition of the same in reference to comprehensive plan amendments that affect fewer than 5 parcels. Somehow, the state legislature included this language in the statute, but really didn't offer an explanation on the difference in impact to FLUP changes that affect five or fewer parcels and six or more parcels. This is what I believe to be a totally arbitrary decision made by the legislature. The court agreed that this language is ambiguous and therefore is playing it proper role in interpreting legislation.

The court determined that the rezoning ordinance (2005-53) is considered a development order, since it actually is the order granting a development permit. According to the court, Florida Statutes define "development permit" as any rezoning permitting the development of land. I think this is given too much weight to the rezoning ordinance as permitting development, especially in this case. The property owner/agent still has to submit a Special Use Permit application if they plan on constructing townhouses on the property (which has consistently been their intent). But, the court says that the rezoning is a development order. Due to the way the statutory language is split up, it is saying that the five or fewer parcel provision does not apply and, in the court's opinion, a development order/permit cannot be subject to a referendum. However, the changes to the comprehensive plan can be subject to a referendum - as long as the affect of the change is to six or more parcels.

The court did not agree that a writ of mandamus could be issued compelling the City to submit the referendum petitions to the Supervisor of Elections since there was not an "unequivocal right" regarding the duty in question. Writs of mandamus are typically used to force governments to do something that is permitted, according to policy and would be issued for any other reason but for subject matter or political sensitivities.

A good example of where a court could issue a writ of mandamus would be the granting of a driveway permit. Let's say everything in the permit application was complete and the design of the driveway met all the standards set by the local government. The local government must issue the permit if it meets all the standards. But let's assume that a neighbor has a problem with the issuance of the permit and for that reason the local government is hesitant to issue it - even though all is in order. Granting the writ of mandamus here would compel the local government to issue the driveway permit.
This is where things go "whacko" in my opinion. What the judge is saying here is that, as part of its being a fact-finding body, the City Commission needs to determine the affect of this FLUP and whether or not it affects five or fewer parcels of land. He is saying that this wasn't done initially, so he is asking that it go back to the City Commission so that they can determine that "fact". Well, I beg to differ with the Judge that the affect of a FLUP change really cannot be measured accurately, scientifically or otherwise. To ask the City Commission (or all local governing bodies) to determine that when considering FLUP requests is pure folly.

So the judge is saying that statutory language can be construed strictly or liberally. The City wanted a liberal interpretation - but the court determined that "parcels" mean more than just the number of parcels that are subject to the FLUP and the City can consider "affect" beyond the parcels (the 4 acre subject parcel) that is the subject of the matter.

The court is also saying that the City didn't do its job by only considering the parcels subject to the change. Practically speaking, this interpretation would require all local governing bodies to make a preemptive strike at a referendum on passage of a FLUP change by determining the number of affected parcels. Five or less could not be the subject of a referendum; six or more could be. Again, this "fine" distinction would amount to "hair-splitting" determinations that are really meaningless, upon examination.

Since, in the court's opinion, the City hasn't repealed the land use plan change ordinances, those are "suspended from taking affect" until the City determines the impact.

All in all, the court here didn't do anyone any favors and, in my opinion, attempted to "split the baby" to settle the dispute. It is an unworkable ruling since whether one parcel is affected or sixteen parcels are affected cannot be "factually" determined. The "affect" can be, and will be, politically determined - to the detriment of all local governments.

Thus, the City Commission, on a 3-2 decision, voted to appeal the ruling.