Q-J v. Legis refreshed Flashcards
How appeal a Legis act? How?
Circuit, de novo dec action.
If CP - Local Process option.
How appeal a Q-J act? How?
Circuit, writ of cert
Legislative Review, B of P
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
Q-J Review, B of P
Q-J ----------- Writ of Cert. Ct looks for 1. Pro [SCONE], 2. Correct, & 3. Comp Subst.
What are some categories of legislative acts?
LEGIS ----------- CP + amends Small Scale amendments Initial zoning Re-zoning if impacts large OR requires change in CP
What are 6 categories of Q-J acts?
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
What procedural due process is required for a Legislative hearing?
LEGIS ----------- Legis says "NO!" ----------- Notice of Hearing Opportunity to be heard.
State the 5 items of Procedural Due Process that must be met in QJ?
Is it the same for Spec Mag?
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
Standard - Legislative
Fairly debatable w/ rational relatnshp to pub purp.
Valid and not disturbed unless clearly arbitrarily and unreasonably applied to a property
Quasi-Judicial - Dfn.
LG investigates facts, holds hearings, weighs evidence, draws conclusions from them as a basis for its decision and exercise of discretion.
What significant change did Fassano (Oregon, 1985) bring?
LEGIS/Q-J ----------- Broke out legislative & quasi. 1. Comp. Plan - Legislative. 2. Zoning - Quasi-Judicial. Because it implements.
When is Re-Zoning Legislative?
- Affects a large portion of the public
OR - Affects a small portion of the public but requires a CP amendment.
When is ex parte permissible?
A. Legislative, can talk to everybody.
B. Quasi-Judicial.
- Presumptively prejudicial.
- Decision may be overturned.
- Disclose at beginning of hearing; make ltr avail for public; enter into record.
- F.S. 286.0115 allows ex parte meetings if adopted by ordinance or resolution
Who can cross examine in a Legis hearing?
No one. Never.
Are cross examinations permitted in a Quasi-Judicial hearing?
Parties - yes; Participants - no.
- Allowed for Parties thru PO who asks if there are any questions and ensures they are answered before they are done.
- Participants are not allowed. Difficult to make distinction between participant and party.
Dfn. Competent substantial evidence.
• Sufficiently relevant and material
• Such that a reasonable mind would accept it
• As adequate to support the conclusion reached.
Exs of Comp Subst. Evid.
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.
What are 2 surprising items deemed a Legislative decisions?
LEGIS
1) Developer agreements.
2) Decision to amend or not amend the CP.
LEGIS ------------------------ Sum up 4 keys of legislative acts. 1) Who impacts. 2) Pro Due Process. 3) Method of appeal. 4) Court standard of review. 5) Quirky process in court.
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.
5) Follow appellate rules.
What’s the funny things about QJ & Legis process in Court?
QJ: Appellate rules govern (appeal briefs, etc.)
Legis: Summary procedure avail.
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) 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.
Sum up an additional theory & what you would file to pursue?
Add 3 BEADs Every Fri.
1983 Bh Equally 1st Amend Dp Exact Fluedra
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1) DP. (a) Proc, (b) Subst, (c) Taking.
2) Eq Pro – 14th Amend. – suspect class.
3) 1st Amend w/ door opener 14th Amend. – signs.
4) 42 USC 1983
* (a) dep, (b) color, (c) cz inj, (d) not imm, (3) more nom.
* Q. Imm. (1) w/i scope, (2) not viol clrly estab. law.
5) 96 Telecm Act – placemt but no discrim or prohib
6) Comp. Planning Ch. 163.
7) Rt to Farm. bmp. Non-resid exempt code or fee.
8) Preemptions. vacation rentals.
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9) BH. VIC unfair Perm Direc FIB (not inv back)
10) Exactions. Nexus, exempt: non-AV, impact fees,
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11) FLUEDRA. Unfair, standing, mechanics.
What’s an alternative path?
FLUEDRA for QJ DEVELOPMENT ORDERS only.
- if requested, LG must provide.
When do you file de novo dec?
Basically anything involving the CP + constitutional claims.
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Legis de novo dec:
Action taken affects large amt or small w/ CP amend.
