Q-J v. Legis refreshed

Question 1

How appeal a Legis act? How?

Answer 1

Circuit, de novo dec action.

If CP - Local Process option.

Question 2

How appeal a Q-J act? How?

Answer 2

Circuit, writ of cert

Question 3

Legislative Review, B of P

Answer 3

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

Question 4

Q-J Review, B of P

Answer 4

Writ of Cert.
Ct looks for
1. Pro [SCONE],
2. Correct, &
3. Comp Subst.

Question 5

What are some categories of legislative acts?

Answer 5

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

Question 6

What are 6 categories of Q-J acts?

Answer 6

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

Question 7

What procedural due process is required for a Legislative hearing?

Answer 7

Legis says “NO!”
———–
Notice of Hearing
Opportunity to be heard.

Question 8

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

Is it the same for Spec Mag?

Answer 8

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

Question 9

Standard - Legislative

Answer 9

Fairly debatable w/ rational relatnshp to pub purp.

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

Question 10

Quasi-Judicial - Dfn.

Answer 10

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

Question 11

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

Answer 11

Broke out legislative & quasi.
1. Comp. Plan - Legislative.
2. Zoning - Quasi-Judicial. Because it implements.

Question 12

When is Re-Zoning Legislative?

Answer 12

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

Question 13

When is ex parte permissible?

Answer 13

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

Question 14

Who can cross examine in a Legis hearing?

Answer 14

No one. Never.

Question 15

Are cross examinations permitted in a Quasi-Judicial hearing?

Answer 15

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.

Question 16

Dfn. Competent substantial evidence.

Answer 16

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

Question 17

Exs of Comp Subst. Evid.

Answer 17

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.

Question 18

What are 2 surprising items deemed a Legislative decisions?

Answer 18

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

Question 19

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.

Answer 19

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.

Question 20

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

Answer 20

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

Legis: Summary procedure avail.

Question 21

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.

Answer 21

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.

Question 22

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

Answer 22

Add 3 BEADs Every Fri.
1983 Bh Equally 1st Amend Dp Exact Fluedra
———–
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.
—
9) BH. VIC unfair Perm Direc FIB (not inv back)
10) Exactions. Nexus, exempt: non-AV, impact fees,
—
11) FLUEDRA. Unfair, standing, mechanics.

Question 23

What’s an alternative path?

Answer 23

FLUEDRA for QJ DEVELOPMENT ORDERS only.

• if requested, LG must provide.

Question 24

When do you file de novo dec?

Answer 24

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

Question 25

How know whether you should file writ?

Answer 25

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

Question 26

What is it about Legis that I always miss?

Answer 26

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

Question 27

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

Answer 27

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

Question 28

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

Answer 28

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

Question 29

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

Answer 29

File writ + dec action.

Question 30

Does Bert Harris fit in here?

Answer 30

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.’

Question 31

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.

Answer 31

~don’t be fooled by:
‘atlas’ - its countywide.
‘small area’ - it’s a CP.

Question 32

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.

Answer 32

~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)

Question 33

If amending small scale, is it legislative or judicial?

Answer 33

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

Question 34

State 4 requirements for small scale.

Answer 34

1) 50 or less (100 rural)
2) Not an area of critical concern.
3) Changes future land use map for site specific.
4) No text change to goal of CP
————
*confirmed 163.3187(1)(a), (b) & (c)