Challenging a Dev Order Flashcards
Summary of legis standard of review.
LEGIS ----------- LAC debatable relationship ------------------------ Legis Arb + Capricious fairly Debatable + rational Relationship to pub purp
Legislative Challenge in Circuit.
Prima Facie case
Arbitrary & capricious
Legislative Challenge in Circuit.
How does LG win?
LEGIS/Q-J CP ----------- 1. PL fails its prima facie (arbitrary + capricious) OR 2. Fairly debatable + 3. Rational relatnshp to pub purp.
What is the “special injury” test for 3rd parties to have standing for a writ?
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. »_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.
Can a 3rd party challenge a development order decision?
Yes, interested persons + special interest groups may pursue a writ BUT they must have a “special injury.”
What 3 things does the Trial Court look for on review?
Q on J(ames bond) was a Pro, Correct & Competent.
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1. wh/ pro due process afforded
2. wh/ correct law (Code) applied
3. wh/ act supported by comp subst evidence
What 2 things does the Appellate Court look for in its reviewing writ?
Q-J Code ----------- The Appellate Court is very PC [Pro, Correct]. ------------------------ 1. wh/ pro due process afforded 2. wh/ correct law (Code) applied
Exs of Comp Subst. Evid.
Q-J Code ----------- 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.
What are appeal avenues for a Legis. decision?
De novo Dec action in Circuit
Arbitrary & capricious vs. Fairly debatable & Public Purp.
What are appeal avenues for a Q-J decision, i.e., one based on Land Dev. Code compliance?
Writ of cert.
What are appeal avenues for a Legis decision based on consistency or inconsistency w/ CP?
LEGIS ----------- EXCLUSIVE = dec action for equitable relief + in Circuit but follow Appellate procedure. OR Local Process.
What are appeal avenues for a Q-J decision based on BOTH Code compliance + consistency or inconsistency w/ CP?
File both a writ of cert (Code compliance) + a dec action (CP).
What are appeal avenues for a QJ or Legis decision based on constitutionality?
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)
What is a non-traditional cheap avenue to appeal a Q-J decision?
FLUEDRA (special magistrate). Must exhaust all administrative appeals.
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?
LEGIS/Q-J CP
(a) Broadly define “aggrieved party” to include developer/applicant.
(b) Review to see if development order strictly complies w/ CP
What happens if State + DOAH determine proposed CP Amendment is not compliant w/ 163. Can a citizen oppose?
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.
What “person” has standing to appeal SPA’s finding that a CP amendment is compliant?
“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.
What “party” has standing to enforce the CP by filing a dec action to appeal development order decision based on inconsistency w/ CP?
“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.
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Aggrieved & Adversely Affected = CP (dec + local)
Unfairly burdened by perm FIB - VIC, mafioso Harris.
Unfairly burdened by Dev Ord - FLUEDRA
What is an “affected” person w/ standing to appeal SPA’s finding CP amendment is compliant?
LG, property owners, residents or business operators w/i LG boundaries, or abutting the FLUM, or adjoining LGs w/ substantial impacts.
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?
Person or local government that will suffer an adverse effect to an interest protected or furthered by CP.
Who has standing to file Bert Harris?
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 expectationFor which claims do you file dec action?
APPEAL ----------- Legis LAC rational relationship Arb + Capr vs. Fairly Debatable + Related to Pub Purp ------------------------ de novo. PL shows consistent, Def shows (a) Inconsistent or (b) Consistent but related to pub purp.
In what scenario does a person have standing to challenge any LG decision without a special injury?
When alleging the LG act violates constitutional limitations on LG’s taxing and spending powers.
Epps v. Halifax
