Challenging a Dev Order

Question 1

Summary of legis standard of review.

Answer 1

LEGIS
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LAC debatable relationship
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Legis
Arb + Capricious
fairly Debatable + rational Relationship to pub purp

Question 2

Legislative Challenge in Circuit.
Prima Facie case

Answer 2

Arbitrary & capricious

Question 3

Legislative Challenge in Circuit.
How does LG win?

Answer 3

LEGIS/Q-J CP
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1.  PL fails its prima facie (arbitrary + capricious)
OR
2.  Fairly debatable +
3.  Rational relatnshp to pub purp.

Question 4

What is the “special injury” test for 3rd parties to have standing for a writ?

Answer 4

Show special damages peculiar to the party which differ in kind (as opposed to degree) to the damages suffered by the community as a whole. &raquo_space;Look for environ grp w/ specific injury not citizen w/ gen worries.«
PLUS
Special interest group must show that a substantial # of mbrs are similarly affected.

Question 5

Can a 3rd party challenge a development order decision?

Answer 5

Yes, interested persons + special interest groups may pursue a writ BUT they must have a “special injury.”

Question 6

What 3 things does the Trial Court look for on review?

Answer 6

Q on J(ames bond) was a Pro, Correct & Competent.
————————
1. wh/ pro due process afforded
2. wh/ correct law (Code) applied
3. wh/ act supported by comp subst evidence

Question 7

What 2 things does the Appellate Court look for in its reviewing writ?

Answer 7

Q-J Code
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The Appellate Court is very PC [Pro, Correct].
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1.  wh/ pro due process afforded
2.  wh/ correct law (Code) applied

Question 8

Exs of Comp Subst. Evid.

Answer 8

Q-J Code
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Examples:
1.  Expert.
2. Professional staff.
3. Fact based (non-technical) testimony of neighbor and lay people if has 1st hand knowledge (road there for 20 yrs).
4. Note - attorney testimony is not.

Question 9

What are appeal avenues for a Legis. decision?

Answer 9

De novo Dec action in Circuit
Arbitrary & capricious vs. Fairly debatable & Public Purp.

Question 10

What are appeal avenues for a Q-J decision, i.e., one based on Land Dev. Code compliance?

Answer 10

Writ of cert.

Question 11

What are appeal avenues for a Legis decision based on consistency or inconsistency w/ CP?

Answer 11

LEGIS
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EXCLUSIVE = dec action for equitable relief + in Circuit but follow Appellate procedure.
OR
Local Process.

Question 12

What are appeal avenues for a Q-J decision based on BOTH Code compliance + consistency or inconsistency w/ CP?

Answer 12

File both a writ of cert (Code compliance) + a dec action (CP).

Question 13

What are appeal avenues for a QJ or Legis decision based on constitutionality?

Answer 13

A separate action running independently of any writ/dec.
Can try 42 USC 1988 (attorney’s fees for breach of civil rights) via 42 USC 1983 as avenue for subst. dp or equal pro under 14th (i think)

Question 14

What is a non-traditional cheap avenue to appeal a Q-J decision?

Answer 14

FLUEDRA (special magistrate). Must exhaust all administrative appeals.

Question 15

If decision based on CP & the aggrieved party is filing its exclusive method of declaratory action:
(a) What will the Court broadly construe?
(b) What will the court strictly construe?

Answer 15

LEGIS/Q-J CP

(a) Broadly define “aggrieved party” to include developer/applicant.
(b) Review to see if development order strictly complies w/ CP

Question 16

What happens if State + DOAH determine proposed CP Amendment is not compliant w/ 163. Can a citizen oppose?

Answer 16

No.
If Amendment unsuccessful before DOAH, citizen’s avenue is to wait until he has an action of the LG to appeal for lack of compliance w/ CP = dec action under §163.3215.

Question 17

What “person” has standing to appeal SPA’s finding that a CP amendment is compliant?

Answer 17

“Affected” person [163.3184(1)(a)]
LG, property owners, residents or business operators w/i LG boundaries, or abutting the FLUM, or adjoining LGs w/ substantial impacts.

Question 18

What “party” has standing to enforce the CP by filing a dec action to appeal development order decision based on inconsistency w/ CP?

Answer 18

“Aggrieved or adversely affected party” [163.3215(2)].
(a) Person or LG that will suffer an adverse effect to an interest protected or furthered by CP.
(b) Who submitted comments after the Transmittal Hearing.
~~
Aggrieved & Adversely Affected = CP (dec + local)
Unfairly burdened by perm FIB - VIC, mafioso Harris.
Unfairly burdened by Dev Ord - FLUEDRA

Question 19

What is an “affected” person w/ standing to appeal SPA’s finding CP amendment is compliant?

Answer 19

LG, property owners, residents or business operators w/i LG boundaries, or abutting the FLUM, or adjoining LGs w/ substantial impacts.

Question 20

Define “aggrieved or adversely affected party” w/ standing to enforce CP by filing a dec action to appeal development order decision based on inconsistency w/ CP?

Answer 20

Person or local government that will suffer an adverse effect to an interest protected or furthered by CP.

Question 21

Who has standing to file Bert Harris?

Answer 21

LEGIS/Q-J
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Bert ("VIC") Harris is Burdened Permanently by a Direct FIB.
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1.   Permanent restriction.
2.  Direct restriction.
3.  Foreseeable use. 
4.  o unable to attain Investment Backed expectation

Question 22

For which claims do you file dec action?

Answer 22

APPEAL
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Legis LAC rational relationship
Arb + Capr vs. Fairly Debatable + Related to Pub Purp
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de novo.  PL shows consistent, Def shows 
(a)  Inconsistent or 
(b)  Consistent but related to pub purp.

Question 23

In what scenario does a person have standing to challenge any LG decision without a special injury?

Answer 23

When alleging the LG act violates constitutional limitations on LG’s taxing and spending powers.
Epps v. Halifax