Challenging a Dev Order Flashcards
Summary of legis standard of review.
LAC debatable relationship
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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?
- PL fails its prima facie (arbitrary + capricious)
OR - Fairly debatable +
- 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?
The Appellate Court is very PC [Pro, Correct].
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1. wh/ pro due process afforded
2. wh/ correct law (Code) applied
Exs of Comp Subst. Evid.
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?
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?
(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?
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
For which claims do you file dec action?
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.
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
