PH, Small Scale, Local refreshed

Question 1

Most Notices of Public Hearing
# hrgs, notice

Answer 1

Most Notices of Public Hearing:
1. 1 public hearing.
2. Notice in newspaper for at least 10 days.
3. No statutory requirement that notice be mailed or post signs. But most jurisdictions do. If you require it, you have to comply with it.

Question 2

When are addtl notices of land use Public Hearings required?

Answer 2

For Land Use Regulations that:
1) Change use in zoning category.
2) Change zoning category (i.e., map)
———–
• Change the actual use of permitted, conditional or prohibited use in the zoning category or
• Which change the actual zoning of a particular parcel or parcels of lands of 50 contiguous acres or more

Question 3

For 50+ acres, state public hearing & notice requirements to change CP, i.e., Actual use or Actual zoning map.

Answer 3

PHS:
1. 2 PHs on wkdays
2. 1 PH @ 5 pm unless vote by maj + 1 (Marion)
NOTICES:
1. 2 ads w/ 18 point font w/ maps.
OR
2. Mail to Os.

Question 4

Results of failure to give notice of a Public Hearing?

Answer 4

Failure to give notice:
(1) Hearings and actions are void ab initio
UNLESS
(2) Citizen waives notice if appears but does not complain of lack of notice.
In theory, if they hadn’t come, it would be void ab initio.

Question 5

S/L to challenge validity of Ordinance for failure to comply w/ statutory procedural requirements.

Answer 5

5 yrs.

Question 6

What limits are placed on Emergency Enactments?

Answer 6

Expedited notice & hrg for emerg matters.
BUT
No emergency ord or reso can amend a:
1) Zoning map or
2) List of permitted, conditional or prohibited uses w/in a zoning category.

Question 7

B of Ps on Subst. Due Pro or Equal Protection Claim.

*Hint - just like legis.

Answer 7

Rational basis test, de novo.
———–
PL: Arb & capric
LG: Fairly debatable & rational basis w/ public purp.
———–
Just like legis. WHY? land use + zoning are related to econ & social welfare, deferred to govt.

Question 8

What does PL have to show for Subt. Due Process?

Answer 8

a. Deprived of a constitutionally recognizable interest &
b. Deprivation was a result of arbitrary & capricious action by LG.

Question 9

When facing subst. due process claim, how show LG LEGIS action not arbitrary & capricious.

Answer 9

Rational basis test, de novo.
———–
PL: Arb & capric
LG: Fairly debatable & rational basis w/ public purp.

Question 10

Timeline to review development permits

Answer 10

A) 30 + 30 (60)
B) 60 + 60 (120)
C) 120 + 60 (180)
———–
166.033 Development permits and orders.—
DAYS ACTION
30 Rvw & advise if deficient
30 Appl corrects deficiency
120 Issue decision w/ findings
or
180 If reqs PH + Issue dec w/ findings.
———-
Does not apply in an area of critical state concern, as designated in s. 380.0552 or chapter 28-36, Florida Administrative Code.

Question 11

Small Scale amendments
Legis or Q-J?

Answer 11

Legis.

Question 12

Small scale amendments - how many acres?

Answer 12

50 acres or less, 100 acres if a rural area of opportunity.

Question 13

What are the 4 requirements to qualify as a Small scale amendments.

Answer 13

A. For 50 [rural 100] acres or less.
B. No changes to CP text.
C. Changes future land use map only.
D. Not in an area of critical concern.

Question 14

Small scale amendments - Review Standard.

Answer 14

Rational basis test, de novo.
———–
PL: Arb & capric
LG: Fairly debatable & rational basis w/ public purp.

Question 15

Timeline for small scale amendment review.

Answer 15

No transmittal hearing.
A) Adoption hearing.
B) 31st day = adoption.
Unless:
C) 30 days Affected Party files w/ DOAH.
Then:
D) 30-60 days for hearing aft Admin. Judge assignmt.
State cannot intervene.

Question 16

What’s the unique leniency about small scale amendment hearings?

Answer 16

Adoption hearing only. No transmittal hearing.

Question 17

What is the limitation on the granting of a Development Order, re: State or Federal permit?

Answer 17

Odd*
May not condition approval of Development Order on applicant’s obtaining State or Federal permit.

Question 18

How does someone appeal a decision that was based on consistency or inconsistency w/ the CP?

Answer 18

A) Before Bd: App shows consist w/ CP. LG shows inconst or pub purp.
B) Notice, Opp, Ex Parte, Wits, Evid.
C) Appeal:
#1) De novo dec by aggrieved or adversely affected.
Sole issue is cons/incons w/ CP = equitable declaration/injunction.
> OR <
#2) Local Process.

Question 19

What is the threshold of impact needed to appeal a land use decision based on CP?

Answer 19

Only if the decision:
Materially alters the DUI inconsistent with the CP.

Question 20

State 3 routes for review a:
a) Legis decision,
vs.
b) Q-J decision.

Answer 20

LEGIS.

1) de novo dec. Circuit, arb/cap v. fairly debatable/public purp.

2) Local Process. prelim dec, magistrate, QJ.

Q-J.
3) Code - writ of cert, pro/correct/subst. comp.

Question 21

State 3 things that ARE appropriate only for QJ?
———–
Said differently, state 3 things that are not appropriate for de novo dec, re: CP [FS 163.3215].

Answer 21

DEVELOPMENT ORDERS:
1) Sewer & roadway in ROW are not dev ords, not approp.
2) FLUEDRA - CP acts are not ‘development orders’
3) Decisions based on Code (by writ).

Question 22

What are 5 keys re: Local Process to appeal a decision based on CP?

Answer 22

LG can adopt ordinance:
1. Make Prelim decision.
2. 10 days of app, mail + post notice advising QJ process.
3. 10 days to special magistrate
4. Discovery + disclosure of wits & exhs.
5. Site visits, testimony, issues subpoenas.

Question 23

State the 2 ways for appeal on decision based on CP?

Answer 23

#1) 30 days to file de novo, circuit, arb/cap v. fairly debatable & public purp
OR
#2) Local Process - LG adopts ordinance w/ Spec Mag

Question 24

In a Local Process (appeal decision based on CP):
What 3 steps follow Spec Mag recommendation?

Answer 24

1. PH w/ public testimony
2. LG is bound by Special Mag’s findings of fact
   UNLESS not supported by comp + subst evid
3. Party may then pursue writ of certiorari.

Question 25

To what extent must Dev. Order alter in order to appeal an Order based on CP?

Answer 25

Order materially alters the DUI inconsistent w/ CP.

Question 26

What unusual civil procedures apply to writ & dec?

Answer 26

Writs go higher/ Decs go faster.
———–
Writ - based on appellate rules of civ pro.
Dec - summary procedure available.

Question 27

For 50+ acres, to amend CP, what is timing of PHs?

Answer 27

CP
———– ~confirmed~
TRANSMITTAL:
7 days after 1st ad.
ADOPTION:
5 days after 2nd ad, 10 days after Transmittal.