Success in litigating local permit denials: alternative theories of obtaining justice.

• Author: McLaren, Scott A.

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When an aggrieved applicant decides to challenge a local government's denial of a rezoning/permit request, he or she needs to be creative in a litigation strategy. This article discusses how to prepare for possible litigation at an administrative hearing before a local governing body and discusses litigation strategies and techniques to maximize the applicant's chance of success.

Properly Preparing for Possible Litigation at the Administrative Level

A local government's decision on a rezoning application or request for a development permit is considered a quasi-judicial decision in most circumstances. (1) The most common way to challenge a local government's quasi-judicial decision is through a petition for writ of certiorari under Florida Rule of Appellate Procedure 9.100. (2)

Because a petition for writ of certiorari is an appellate remedy, a court's certiorari review of a local government's quasi-judicial decision will be limited to the evidence presented to the local government at the time the decision was made--typically at a public hearing. Therefore, when an applicant presents his or her case to the local governing body, the applicant must make certain all evidence and arguments supporting the application are introduced into the record and submitted to the local government at the time the ruling is made. If the applicant fails to include particular evidence or arguments in the initial presentation to the local government, the applicant could be precluded from relying on that evidence or argument if he or she subsequently appeals an adverse ruling on the application. (3) Further, in order to preserve the record, the applicant should confirm that the transcript of any public hearing is properly preserved digitally, by videotape or, if necessary, by a court reporter.

Time at a public hearing is often a critical factor. Usually, there is insufficient time to present all evidence and argument to support a rezoning/permit application. In this instance, the applicant should focus on the evidence and arguments that emphasize the strongest points of the application, giving special attention to those that will be politically palatable to the decisionmaker(s). Arguments that are more adversarial in nature or arguments and evidence that cannot be submitted due to time constraints should be submitted in written form to the clerk of the local governing body prior to its ultimate decision. Submitting this evidence in written form prior to the public hearing (to be included in the record of the proceedings) will typically avoid the undesirable "confrontation" at the public hearing, and will also protect the applicant by preserving all evidence and argument for later consideration by an appellate tribunal. (4)

Exhausting Administrative Remedies

If a local government denies a rezoning/permit application, the first step in the litigation process is to determine whether the applicant has the right to an administrative appeal under the applicable local ordinance(s). Often, ordinances allow a rejected applicant to appeal an adverse land use decision to a board of zoning appeals or to the local government's governing body (if the appeal is from a lower tribunal, such as a historic preservation board, etc.). An aggrieved applicant should be careful to review these ordinances soon after the permit application is denied because some jurisdictions impose very restrictive time constraints upon a potential appellant. (5) Likewise, some local ordinances are rather vague as to whether a right to an administrative appeal exists, and as to which board, if any, is the appropriate one to hear such appeals.

In most circumstances, prior to filing any type of lawsuit in state or federal court, an applicant must exhaust all available remedies/appeals at the local government level. (6) Thus, it is imperative that an aggrieved applicant file an appeal before any board or administrative officer that might conceivably have jurisdiction over such appeal. If the local ordinance is vague or ambiguous, and suggests that the applicant might have an administrative remedy before more than one local board or officer, the applicant should protect any judicial remedies by filing the administrative appeal before all boards, officers, or departments that may have jurisdiction.

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Firm deadlines are not unique to administrative appeals. Indeed, if an aggrieved applicant wishes to file a petition for writ of certiorari to challenge a quasi-judicial denial of an application, such action must occur within the strict deadline of 30 days following the final administrative action of the local government. (7) This 30-day deadline has been repeatedly held to be a jurisdictional deadline --one that cannot be extended even by agreement of the parties. (8) Accordingly, when a local ordinance is vague as to whether an administrative appeal exists within the framework of the local government, an applicant should protect all potential remedies by simultaneously filing a petition for writ of certiorari in federal or state court at the same time as filing an administrative appeal with any local governmental body, department, or official that might have jurisdiction over an administrative appeal.

The Land Use and Environmental Dispute Resolution Act

Florida's seldom used Land Use and Environmental Dispute Resolution Act (LUEDRA), codified at F.S. [section]70.51, provides an alternative dispute resolution mechanism for land use and environmental permitting disputes. (9) The act applies to a person with a legal or equitable interest in real property who files an application for a development permit (including a rezoning) that is denied by the local governing body. (10) If the applicant is aggrieved by the adverse ruling, a request for relief "with the elected or appointed head of the governmental entity that issued the development order" within 30 days of the denial of the referenced permit. (11) Prior to initiating LUEDRA proceedings, an applicant "must exhaust all nonjudicial local government administrative appeals if the appeals take no longer than four months." (12) If the appeals take longer than four months, an applicant may initiate a proceeding under LUEDRA even if the local administrative appeals have not concluded. (13)

Within 10 days of initiating a LUEDRA proceeding, a special magistrate shall be appointed. (14) If the applicant files a lawsuit prior to initiating a proceeding under LUEDRA, any right to the special magistrate proceeding is waived. (15)

Once the applicant invokes LUEDRA's special magistrate proceedings, the special magistrate convenes an informal hearing that is open to the public in which the magistrate shall "focus attention on the impact of the governmental action giving rise to the request for relief" and "explore alternatives to the development order or enforcement action" in order to recommend relief to the applicant. (16) Therefore, the special magistrate--in the context of LUEDRA--"shall act as a facilitator or mediator between the parties in an effort to effect a mutually acceptable solution." (17)

If the special magistrate proceeding does not produce an agreed-upon "mediated" solution between the parties, the special magistrate enters a ruling determining "whether the action by the governmental entity or entities is unreasonable or unfairly burdens the real property." (18) The special magistrate then is required to prepare and file with all parties a "written recommendation." (19) If the special magistrate finds the governmental action reasonable, and not special magistrate finds the governmental action reasonable, and not unduly burdensome, the proceeding is over. (20) But if the special magistrate finds the permit denial unfair or that it creates an unreasonable burden, the special magistrate must issue a recommendation to rectify the governmental action, which can range from, among other things: 1) adjustment or modification of the local government's position; 2) reversal of the local government's decision; 3) transfer of the applicant's development rights; or even 4) purchase of the real property by the appropriate local governmental entity. (21)

Once the special magistrate provides the recommendation, it is then submitted to the governing body of the applicable local government for review. (22) The...