Q-J v. Legis refreshed Flashcards

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1
Q

How appeal a Legis act? How?

A

Circuit, de novo dec action.

If CP - Local Process option.

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2
Q

How appeal a Q-J act? How?

A

Circuit, writ of cert

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3
Q

Legislative Review, B of P

A

BoP: Owner to show LG act is arbitrary + capricious
Loses if:
1) LG act fairly debatable or
2) Rationally related to a legit public purpose.
Type: De novo dec hearing
For: Injunctive or declaratory relief

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4
Q

Q-J Review, B of P

A
Q-J
-----------
Writ of Cert.  
Ct looks for 
1.   Pro [SCONE], 
2.  Correct, &
3.  Comp Subst.
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5
Q

What are some categories of legislative acts?

A
LEGIS
-----------
CP + amends
Small Scale amendments
Initial zoning
Re-zoning if impacts large OR requires change in CP
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6
Q

What are 6 categories of Q-J acts?

A

Q-J

1) Zoning; Overlay Zoning; Re-Z if impacts small
2) Annexations
3) Special exceptions, permits, variances, vested rts hrg,
4) Code enforcement
5) Subdivision plats
6) Business licenses

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7
Q

Procedural Due Process - Legislative

A
LEGIS
-----------
Legis says "NO!"
-----------
Notice of Hearing
Opportunity to be heard.
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8
Q

State the 5 items of Procedural Due Process that must be met in QJ?

Is it the same for Spec Mag?

A

Q wants a SCONE.

1) Submit evidence.
2) Cross examine,
3) Opportunity to be heard.
4) Notice of hearing.
5) no Ex parte.

MAG Visits wants Drop of Tea w/ his SCONE.

1) site Visits
2) Discovery, Depos.
3) Testimony, subpoenas
4) SCONE

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9
Q

Standard - Legislative

A

Fairly debatable w/ rational relatnshp to pub purp.

Valid and not disturbed unless clearly arbitrarily and unreasonably applied to a property

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10
Q

Quasi-Judicial - Dfn.

A

LG investigates facts, holds hearings, weighs evidence, draws conclusions from them as a basis for its decision and exercise of discretion.

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11
Q

What significant change did Fassano (Oregon, 1985) bring?

A
LEGIS/Q-J
-----------
Broke out legislative & quasi.
1. Comp. Plan - Legislative.
2. Zoning - Quasi-Judicial. Because it implements.
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12
Q

When is Re-Zoning Legislative?

A

  1. Affects a large portion of the public
    OR
  2. Affects a small portion of the public but requires a CP amendment.
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13
Q

When is ex parte permissible?

A

A. Legislative, can talk to everybody.

B. Quasi-Judicial.

  1. Presumptively prejudicial.
  2. Decision may be overturned.
  3. Disclose at beginning of hearing; make ltr avail for public; enter into record.
  4. F.S. 286.0115 allows ex parte meetings if adopted by ordinance or resolution
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14
Q

Who can cross examine in a Legis hearing?

A

No one. Never.

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15
Q

Are cross examinations permitted in a Quasi-Judicial hearing?

A

Parties - yes; Participants - no.

  1. Allowed for Parties thru PO who asks if there are any questions and ensures they are answered before they are done.
  2. Participants are not allowed. Difficult to make distinction between participant and party.
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16
Q

Dfn. Competent substantial evidence.

A

• Sufficiently relevant and material
• Such that a reasonable mind would accept it
• As adequate to support the conclusion reached.

17
Q

Exs of Comp Subst. Evid.

A
Q-J
-----------
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.
18
Q

What are 2 surprising items deemed a Legislative decisions?

A

LEGIS

1) Developer agreements.
2) Decision to amend or not amend the CP.

19
Q
LEGIS
------------------------
Sum up 4 keys of legislative acts.
1)   Who impacts.
2)  Pro Due Process.
3)  Method of appeal.
4)  Court.
A

LEGIS

1) Effects large or small w/ CP amend.
2) Notice & opp to be heard.
3) De novo dec OR local process (CP)
4) Arb & capricious vs. Fairly debatable & pub purp.

20
Q

What’s the funny things about QJ & Legis process in Court?

A

QJ: Appellate rules govern (appeal briefs, etc.)

Legis: Summary procedure avail.

21
Q
Q-J 
-----------
Sum up 5 keys of Q-J.
1)   What show before Bd.
2)  Pro Due Process.
3)  Method of appeal.
4)  Court +what it looks for.
5)  Funny thing about QJ treatment in Ct.
A

A) O: Code compliant. LG: Not or pub purp.
B) SCONE, Sub evid, Cross ex, Opp, heard, Notice, Ex parte
C) Appeal: Writ, 30 days
D) Circuit: Comp subst, Pro (dp) + Correct law,
E) Appellate rules of procedure.

22
Q

Sum up an additional theory & what you would file to pursue?

A

Constitutional challenge = dec action via 1983.

23
Q

What’s an alternative path?

A

FLUEDRA for QJ DEVELOPMENT ORDERS only.

  • if requested, LG must provide.
24
Q

When do you file de novo dec?

A

Basically anything involving the CP + constitutional claims.
———–
Legis de novo dec:
Action taken affects large amt or small w/ CP amend.

25
Q

How know whether you should file writ?

A

Q-J writ:
Action taken affects small amt. Based on Code (ex. variance denied).

26
Q

What is it about Legis that I always miss?

A

Legis is de novo! (not writ)
Arb & capric v. Fairly debatable & pub purp.

27
Q

What is it about Q-J that I always miss?

A

Pro, Correct & Competent Subst. are part of the Court’s review of a Q-J Code appeal via writ.

28
Q

What is it about Q-J burdens that I always miss?

A

Q-J Code - writ - pro, correct, comp susbt.

29
Q

What if LG made a decision on both Code & CP?

A

File writ + dec action.

30
Q

Does Bert Harris fit in here?

A

No. Harris is when LG has initiated some action.
———–
Ex. Re-zoning is denied. O learns Code has changed since he’s owned it. He argues LG initiated action = Harris claim.
———–
Catch - O has 1 yr from ‘when first applied.’

31
Q
Which of the following types of land use proceedings are likely to be considered Q-J proceeding?
A. County-wide zoning atlas amendments.
B. Variances.
C. Small area CP Amendments.
D. B and C.
A
B.
-----------
~don't be fooled by:
'atlas' - its countywide.
'small area' - it's a CP.
32
Q

Which of the following due process requirements are necessary for a Q-J hrg but not a Legis hrg?
A. The ability to cross examine witnesses by the parties.
B. The ability for all participants to cross-examine witnesses.
C. The ability to question the decision makers.
D. All of the above.

A

~You can’t cross exam in Legis.~ I forget this.

Q requires a SCONE.
Submit evid, Cross exam, Opp heard, Ex parte

Legis says “NO” (Notice, Opp)

33
Q

If amending small scale, is it legislative or judicial?

A

Still legislative even if small. Amending the CP is amending the CP & that is Legis.

34
Q

State 3 requirements for small scale.

A

LAND USE

1) 50 or less (100 rural)
2) Not an area of critical concern.
3) No text change to goal of CP
4) Changes future land use map for site specific.