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Thread: Recent "Bert Harris" litigation (Florida)

  1. #1
    Cyburbian
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    Recent "Bert Harris" litigation (Florida)

    Citrus County was sued some time ago on a Bert Harris claim. Briefly the facts are as follows:
    The County approved a condo development that was consistent with the Land Dev Code , but not the Comp Plan. The Code had been in place for several years and had not been challenged as inconsistent with the Plan within the one year Statute of Limitation of FS 163.3213
    A NYMBY group sued the County on the permit under 163.3215 but the issue was entirely a zoning issue and the 163.3213 limitation was completely overlooked due to incompetent County counsel. The County lost and failed to appeal. They subsequently downzoned the property and the owner sued for damages incurred in reliance on the County.
    Now comes the good part : The County attorney quits and the outside contract attorney now argues that the developer had no right to rely on the representations of the Director and planners because they are not competent to make decisions on land use. (presumeably because they are not lawyers)
    Maybe some of you planners out there would like to intervene as "amicus curiae" to protect your reputations. It is pretty clear to me that the incompetence was with the lawyers and the judge. For more info Google : Hall's River" or Blake Longacre" The case was continued until Jan 11, 08.
    Apparently there is no limit that the County will not go to win. They are apparently willing to destroy the reputation and authority of their own staff.

  2. #2
    Cyburbian Cardinal's avatar
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    Quote Originally posted by Inventor View post
    ... Maybe some of you planners out there would like to intervene as "amicus curiae" to protect your reputations. It is pretty clear to me that the incompetence was with the lawyers and the judge...
    Or the plan commission or the elected officials? Our recommendations are often ignored by the people who have the authority to make decisions.
    Anyone want to adopt a dog?

  3. #3
    maudit anglais
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    Most results for "Blake Longacre" are for a cyclist. However, there was this one article available from 2004 sptimes article. I don't believe everything I read in the media, but it would seem to me the developer took a chance and lost. Boo hoo.

  4. #4
    Cyburbian
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    Quote Originally posted by Cardinal View post
    Or the plan commission or the elected officials? Our recommendations are often ignored by the people who have the authority to make decisions.
    This project was approved by the BOCC at the recommendation of the planners who cleared it with DCA. There was a lot of NYMBY opposition but the planning Ditrector concluded that since it was completely consistent with the Code, approval was legally mandated. We now have a situation in the County that we can no longer rely on the judgement of professionals. Apparently we are to be subjected to the whims of incompetent jurists. No help from the DCA.
    This is no surprise and is consistent with no help from DOT with failing LOS State roads while concurrency is shoved down our throats at the same time our money is being mismanaged by the State trust funds.

  5. #5
    NIMBY asshatterer Plus Richmond Jake's avatar
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    Quote Originally posted by Inventor View post
    ...[snip].... The County approved a condo development that was consistent with the Land Dev Code , but not the Comp Plan...[snip]...
    Not knowing all the facts, but based on this statement, the County erred. Every project in Florida, and I venture to say, everywhere else in the Country, is required to be consistent with both the comprehensive plan (the constitution of land use in the hierarchy of things), and the land development regulations.

    Don't blame FDOT. Don't blame DCA (they have no authority over land development regulations).

  6. #6
    Cyburbian Fat Cat's avatar
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    Fat Cat

    What is really galling is when the attorney for the other side smirks and says don't you wish you could afford a good attorney like me
    Naturally I have kept a straight face and responded that we have excellant representation
    Over the years I can count on one hand the "good attorneys" that I had to count on
    One of the not so good went on to become a judge like her father and brother.
    So far I have been lucky and have never had to come before her or a member of her family in court
    On the other side I have also won some that we probably should not have because the attorney on the other side did not do their home work

  7. #7
    Cyburbian
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    Quote Originally posted by RichmondJake View post
    Not knowing all the facts, but based on this statement, the County erred. Every project in Florida, and I venture to say, everywhere else in the Country, is required to be consistent with both the comprehensive plan (the constitution of land use in the hierarchy of things), and the land development regulations.
    Hello Jake,
    Yes every project is supposed to be consistent with the Comp Plan but the Comp Plan is a policy document and is implemented by the Code. Permits are issued based on the Code. The Code is presumed valid if it is not challenged. The Florida Statutes provide that a challenge to the consistency of a code with the Plan (i.e. zoning) must be brought within one year. This statute of limitation is mandated by F.S.163.3213. F.S.163.3215 is for permit challenges. The issue in the Hall's River case was a zoning issue.
    Everyone concerned with development needs to be able to rely on the Code. Planners should not have to guess wether or not their Code is valid. The Comp Plan is not intended to address the minutia of the Land Development Code. Developers do not look at the policy document (Comp Plan) when they apply for a permit. They rely on the Code and its interpretation by the planners who, if they didn't write it, have edited, modified, and recommended its passage.
    I have had my share of disagreements with planners but they are far more knowledgeable on these issues than the courts. Florida needs a separate court system for land development issues. This is done in other states. The Florida courts are too political due to elected judges.
    Last edited by NHPlanner; 11 Dec 2007 at 8:18 AM. Reason: fixed quote tag

  8. #8
    Cyburbian hilldweller's avatar
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    The issue seems to be wrongly administered zoning here; maybe the Planning Dept. overlooked some aspect of the project that should have require a variance. This happens unfortunately, especially in a place like Florida where planners have to administer such convoluted codes.

    That said, if the determination was already made by DCA that the project met the standards of the law, I don't see how the project could be retroactively killed. Inventor, you indicate that DCA approved it, so I'm assuming it was a land use change? If DCA approved it and the BOCC approved it, the developer is entitled to that density IMO. Zoning can't get in the way of that, other than to require standards for site improvements.

  9. #9
    Cyburbian
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    Quote Originally posted by hilldweller
    That said, if the determination was already made by DCA that the project met the standards of the law, I don't see how the project could be retroactively killed. Inventor, you indicate that DCA approved it, so I'm assuming it was a land use change? If DCA approved it and the BOCC approved it, the developer is entitled to that density IMO. Zoning can't get in the way of that, other than to require standards for site improvements.
    Hello Hilldeweiler,
    This condo project did not involve a zone change. The County adopted a Comp Plan before it adopted the necessary changes to the Land Development Code that would bring the Code into consistency with the Plan. It was apparent to the staff that the project was in compliance with the Code, but not in compliance with the Plan, as to zoning. The staff sought the opinion of the DCA and it was concluded that the Code controlled. This was no surprise as FS 163.3213 precludes a challenge to the Code on grounds of "inconsistency" if unchallenged for one year.
    The plaintiffs (one of whom was the wife of a siting County Commissioner) challenged the zoning under 163.3215 which should not have been allowed as .3215 is for a permit, not a zoning, challenge. (The 5th DCA has ruled on this issue in another case). No DCA "approval" was involved, just an advisory opinion as I understand it. The DCA has not come forward to help the County and apparently the County is too intimidated by the DCA to do anything about it.
    The County's contract attorney is now arguing that planning staff is not qualified to make these type of decisions and and that the developer should have sought legal advice. In fact the developer did have legal counsel (my attorney). Given that staff approved and DCA concurred, why would the attorney object ? The judge doesn't want to rule against the County and seems to be leaning toward holding each party partially
    responsible. The fact is that neither the staff nor the developer did anything wrong with this application. A bunch of selfish NYMBYS got lucky with an incompetent judge. My hope is that the County has to pay so we can get some respect for "Bert Harris" but I am not counting on it.
    Last edited by NHPlanner; 12 Dec 2007 at 8:24 AM. Reason: fixed quote tags

  10. #10
    NIMBY asshatterer Plus Richmond Jake's avatar
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    Quote Originally posted by Inventor View post
    Hello Jake,
    Yes every project is supposed to be consistent with the Comp Plan but the Comp Plan is a policy document and is implemented by the Code.
    Exactly. (Empasis added.)

    Quote Originally posted by Inventor View post
    The Code is presumed valid if it is not challenged.
    Really? Your problem...and the community's.

    Quote Originally posted by Inventor View post
    The Comp Plan is not intended to address the minutia of the Land Development Code. Developers do not look at the policy document (Comp Plan) when they apply for a permit.
    Do you know how many jurisdictions in Florida that only have a Comprehensive Plan that is so detailed that it also serves as the land development regulations? And developers do need to look at the policy document. (See comment above.)
    Quote Originally posted by Inventor View post
    The Florida courts are too political due to elected judges.
    Where are judges, other than federal judges, not elected? Are you confusing this with the Division of Adminstrative Hearings?

    Me thinks you need a better lawyer.

  11. #11
    Cyburbian
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    Quote Originally posted by RichmondJake View post
    Exactly. (Empasis added.)

    Really? Your problem...and the community's.

    Do you know how many jurisdictions in Florida that only have a Comprehensive Plan that is so detailed that it also serves as the land development regulations? And developers do need to look at the policy document. (See comment above.)
    Where are judges, other than federal judges, not elected? Are you confusing this with the Division of Adminstrative Hearings?

    Me thinks you need a better lawyer.
    Hello Jake,
    No, I am not confused, MA, ME, VT, NH, CT, RI, NY, and NJ have appointed judges. Nine other states, including Florida are considered "hybrid" states and have some combination of appoinments to qualify to stand for election or legislative election etc.The Florida Supreme Court does not stand for election, as I understand it, but need some sort of approval after a number of years.
    The jurisdiction at issue does have a separate Comp Plan and Code, so I am not interested in the others. I found no reference to FS 163.3213 in your comments. That is the heart of the matter and you need to familiarize yourself withthis very important distinction between code and permit challenges.
    Everybody need a better lawyer.

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