Best Practices for Obtaining and Defending Land Use Approvals

Best Practices for Obtaining and Defending Development Approvals

Erin J. Tilton, Esq. Liz Desloge Ellis, Esq.

Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.

DISCLAIMER

The information provided in this presentation does not, and is not intended to, constitute legal advice; it is for general informational purposes only. Information in this presentation may quickly become outdated. Viewers of this presentation should contact their attorney to obtain advice with respect to any particular matter. No one should act or refrain from acting on the basis of information in this presentation without first seeking legal advice from counsel. Only your attorney can provide assurance that the information contained in this presentation, as well as the reader's interpretation of that information, is appropriate to any particular situation.

This presentation is the property of Stearns Weaver Miller, P.A. and distribution and publication of such presentation is prohibited without the consent of Stearns Weaver Miller, P.A.

OVERVIEW OF PRESENTATION

Considerations in preparing development application;

Types of local government development approvals;

Options for appealing local government decisions;

Rules of evidence and practical application to discovery, depositions, and trial

PART I – OBTAINING YOUR DEVELOPMENT APPROVAL

PRE-APPLICATION CONSIDERATIONS

• Get to know the client and assess:

• Ultimate goals

• Business considerations

• Schedule constraints

• Flexibility and temperament

• Expectations

• Are there opportunities to reconcile the client’s private goals with the public interest?

PART I – OBTAINING YOUR DEVELOPMENT APPROVAL

• PRE-APPLICATION CONSIDERATIONS (cont’d)

• Think through major issues in your case from the start

• Transportation challenges?

• Natural resource or drainage issues?

• Compatibility concerns?

• Stakeholders?

• Be sure you have a firm understanding of the relevant laws and regulations

• Comprehensive Plan

• Land Development Regulations

• State and Federal Requirements

• Judicial and Administrative Decisions

• Similar projects and other precedents.

PART I – OBTAINING YOUR DEVELOPMENT APPROVAL

PRE-APPLICATION CONSIDERATIONS (cont’d)

• Prepare the application with the following in mind:

• State of title and relevant contracts

• Agency files on the property

• Application requirements

• Meet with staff

• Ensure decision-makers know what you are doing

• Consider the possibility of litigation, even if it seems unlikely

LOCAL GOVERNMENT APPROVALS: LEGISLATIVE, EXECUTIVE, AND QUASI-JUDICIAL DECISIONS

• Three types of decisions: Legislative, Executive, and Quasi-Judicial

• Depends on the character of the hearing – is the decision based on a noticed hearing and contingent on evidentiary showing made at the hearing? De Groot v. Sheffield, 95 So. 2d 912 (Fla. 1957).

• Is the decision a formulation of a general rule of policy, or application of a general rule of policy? Bd. of County Comm’rs v. Snyder, 627 So. 2d 469 (Fla. 1993).

• Does the decision impact a large portion of the public or a small number of persons or properties?

• The type of decision is critical because it controls:

• Burden of proof;

• Process due; and

• Forum and standard of review.

LOCAL GOVERNMENT APPROVALS: LEGISLATIVE, EXECUTIVE, AND QUASI-JUDICIAL DECISIONS

•

Legislative Decisions

• Involve policy formation

• Examples include: comprehensive plan adoption and amendment

• Standard of review: fairly debatable

• Highly deferential standard requiring approval of the action if reasonable persons could differ as to its propriety. Martin County v. Yusem, 690 So. 2d 1288 (Fla. 1997).

• Burden of proof: challenger must show decision was arbitrary and capricious.

• Review of decision: judicial review as declaratory judgment or injunctive relief.

LOCAL GOVERNMENT APPROVALS: LEGISLATIVE, EXECUTIVE, AND QUASI-JUDICIAL DECISIONS

Legislative Decisions: Practical Effects

• Requires less process than quasi-judicial

• Parties do not have a right to cross examination

• Does not provide the same level of due process protection

• Standard afforded to local government is more deferential

• Decision is reviewed de novo

LOCAL GOVERNMENT APPROVALS: LEGISLATIVE, EXECUTIVE, AND QUASI-JUDICIAL DECISIONS

• Executive Decisions

• Involve decisions by local government officials administering the local code.

• Examples:

 Granting a building permit to repair damage from a hurricane. City of St. Pete Beach v. Sowa, 4 So. 3d 1245 (Fla. 2d DCA 2009).

 Denial of a permit application for an “adult oriented business.” Pleasures II Adult Video v. City of Sarasota, 833 So. 2d 185 (Fla. 2d DCA 2002).

• Cannot be reviewed by petition for writ of certiorari. Lee County v. Harsh, 44 So. 3d 239 (Fla. 2d DCA 2010).

• Local codes may provide for administrative appeals to review decision

LOCAL GOVERNMENT APPROVALS: LEGISLATIVE, EXECUTIVE, AND QUASI-JUDICIAL DECISIONS

Quasi-Judicial Decisions

• Involve the application of existing policy to a specific development application.

• Examples: rezonings, variances, subdivision plats, and site plans (with some exceptions).

• Burden of proof: applicant has the burden of demonstrating compliance with all applicable criteria for approval by competent substantial evidence.

• Burden then shifts to local government to justify denial

• Examples:

 Rezoning—local government must show that maintaining the existing zoning serves a legitimate public purpose or the denial is not arbitrary, discriminatory, or unreasonable

 Special exception—local government must show the requested exception does not meet criteria and is adverse to public interest.

LOCAL GOVERNMENT APPROVALS: LEGISLATIVE, EXECUTIVE, AND QUASI-JUDICIAL DECISIONS

Quasi-Judicial Decisions

• What is competent substantial evidence?

• “Evidence sufficiently relevant and material to the ultimate determination that a reasonable mind would accept it as adequate to support the conclusion reached.” Hialeah Gardens v. Miami-Dade Charter Found., 857 So. 2d 202, 204 (Fla. 3d DCA 2003) (quoting DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957)).

• Evidence that “merely creates a suspicion” or “gives equal support to inconsistent inferences” does not meet the competent substantial evidence threshold. Dept. of Highway and Motor Vehicles v. Trimble, 821 So. 2d 1084, 1087 (Fla. 1st DCA 2002).

LOCAL GOVERNMENT APPROVALS: LEGISLATIVE, EXECUTIVE, AND QUASI-JUDICIAL DECISIONS

Quasi-Judicial Decisions

• Examples of competent substantial evidence:

• Application and applicant testimony. Riverside Group, Inc. v. Smith, 497 So. 2d 988, 990 (Fla. 5th DCA 1986).

• Professional staff reports. Palm Beach County v. Allen Morris Co., 547 So. 2d 690, 694 (Fla. 4th DCA 1989).

• What is not considered competent substantial evidence?

• Generalized statements in opposition. Trimble, 821 So. 2d at 1087.

• Untruthful or nonexistent evidence. Wiggins v. Fla. Dept. of Highway Safety and Motor Vehicles, 209 So. 3d 1165, 1173 (Fla. 2017).

• Flawed evidence. First Baptist Church of Perrine v. Miami-Dade County, 768 So. 2d 1114, 1116 (Fla. 3d DCA 2000).

LOCAL GOVERNMENT APPROVALS: LEGISLATIVE, EXECUTIVE, AND QUASI-JUDICIAL DECISIONS

Quasi-Judicial Decisions: Procedural Implications

• Adequate Notice

• Opportunity to be Heard

• Fair and impartial decision-maker

• Ex parte communications

• Decision based on correct application of the law and competent substantial evidence in the record

LOCAL GOVERNMENT APPROVALS: LEGISLATIVE, EXECUTIVE, AND QUASI-JUDICIAL DECISIONS

Quasi-Judicial Decisions: Review of the decision

• Reviewed in circuit court by petition for writ of certiorari.

 Limited to whether there was competent substantial evidence, whether procedural due process was afforded, and whether essential requirements of law were observed.

• Review of whether a “development order” is inconsistent with the local comprehensive plan must be brought under the section 163.3215, Florida Statutes – review is de novo.

LOCAL GOVERNMENT APPROVALS: LEGISLATIVE, EXECUTIVE, AND QUASI-JUDICIAL DECISIONS

Quasi-Judicial Decisions: Practical effects:

• Evidence must be submitted before the decision is issued.

• Be sure to address every applicable criterion for approval!

• Provide hard copies of all electronic presentations and submit to the clerk for inclusion in the record; do the same with any supplemental material distributed or referenced during the presentation.

• Ensure all testimony to be presented verbally is also submitted into the record in writing in case the presentation is cut short.

• The party seeking to challenge must preserve the record. Confirm that there will be a court reporter or hire one independently.

• Issues must be raised to be preserved. If there are procedural or substantive deficiencies, raise them on the record or risk waiving them for appeal.

PART II – DEFENDING YOUR DEVELOPMENT APPROVAL

So, you got your development approval and now you’ve found yourself having to defend it against a subsequent challenge (or maybe you didn’t get your approval and your client is challenging the denial) – while many land use appeals are “on the record,” others are not. This section of the presentation will give you the tools you need to navigate discovery, depositions, and trial testimony.

PART II – DEFENDING YOUR DEVELOPMENT APPROVAL

• Scope of Discovery is BROAD

• Fla. R. Civ. P. 1.280(b): “Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action . . . “

• Does not matter that the information sought will be inadmissible at trial if the information appears reasonably calculated to lead to discovery of admissible evidence.

PART II – DEFENDING YOUR DEVELOPMENT APPROVAL

Scope of Discovery: Limitations

1. Attorney Client Privilege

• Section 90.502, F.S.: Communications between a lawyer and client are confidential if not intended to be disclosed to third persons other than:

 Those to whom disclosure is made in furtherance of the rendition of legal services to the client

 Those reasonably necessary for the transmission of the communication

• Application to entities (i.e. businesses, corporations): communications between general counsel and employees are privileged under certain circumstances.

• Application to governmental entities: privilege applies only to oral communications unless another exemption applies. Don’t forget about the Sunshine Law!

PART II – DEFENDING YOUR DEVELOPMENT APPROVAL

Scope of Discovery: Limitations

2. Work Product Doctrine

• Fact—protects information related to the case and gathered in anticipation of litigation

• Opinion—protects mental impressions, conclusions, opinions, or legal theories of an attorney or other representative.

• Application to governmental entities: public records law provides a limited exception for opinion work product:

 Prepared by or at attorney’s direction, reflects mental impressions, prepared for or in anticipation of litigation.

 Only applies until litigation is over.

 Not waived by release to another party.

PART II – DEFENDING YOUR DEVELOPMENT APPROVAL

Expert Witness Retention: Issues

• Competency

Who is the client?

• Scope of representation

• Testifying or non-testifying? • Will you produce a report?

PART II – DEFENDING YOUR DEVELOPMENT APPROVAL

• WRITTEN DISCOVERY

• If you are not testifying—facts known or held are deemed work product and are only discoverable by showing of exceptional circumstances. Rocca v. Rones, 125 So. 3d 370 (Fla. 3d DCA 2013).

• Testifying expert should expect expert interrogatories.

• Identify who the party expects to call as an expert at trial.

• Subject matter on which the expert is expected to testify.

• Substance of the facts and opinions to which the expert is expected to testify.

• Summary of the grounds for each opinion.

PART II – DEFENDING YOUR DEVELOPMENT APPROVAL

• File documents and communications can be discovered through requests for production or through a subpoena duces tecum for deposition.

• Work with counsel on gathering and reviewing documents!

PART II – DEFENDING YOUR DEVELOPMENT APPROVAL

WRITTEN DISCOVERY: Practical implications

• Avoid creating multiple versions of your report.

• Discuss changes with counsel over the phone or in person.

• Think before sending written communications, including emails and text messages!

• It can be valuable to document certain matters and issues in writing. Discuss with legal team.

• Remain professional in your communications— assume they will end up in front of a judge or read aloud in a deposition.

PART II – DEFENDING YOUR DEVELOPMENT APPROVAL

DEPOSITIONS: TIPS

• Purpose is typically to understand and test the opinions that will be offered at trial

• Cardinal rule—tell the truth!

• Listen to questions carefully and only offer answers to the questions being asked

• Don’t assume you know where the examiner is going with the questions

• Don’t be in a rush

• Don’t be afraid to ask for clarification

• Don’t be afraid to concede on obvious points

• Rely on counsel to object and instruct you not to answer—otherwise, answer and tell the truth!

PART II – DEFENDING YOUR DEVELOPMENT APPROVAL

DEPOSITIONS: WHAT NOT TO DO

• Don’t talk over the examiner

• Don’t be disrespectful, even if the examiner is

• If the deposition is virtual, be aware of whether your video and microphone are on, especially during breaks!

• If the deposition, hearing, or trial is virtual, TEST your equipment ahead of time!

PART II – DEFENDING YOUR DEVELOPMENT APPROVAL

DEPOSITIONS: What will be asked of you?

• General questions about your educational and employment background

• Questions about other cases you’ve worked on

• Questions about whether you’ve ever been accepted as an expert and whether your opinion has ever been excluded

• Understand the limits of your expertise and the role of other experts

• Substance of your opinions and bases

• Hypotheticals

PART II – DEFENDING YOUR DEVELOPMENT APPROVAL

TRIAL TESTIMONY

• Purpose is different from deposition testimony—need to make evidentiary record and persuade the trier of fact

• Scope of testimony is more limited—dealing with admissibility standards instead of broad discovery standards (reasonably anticipated to lead to discovery of admissible evidence)

• Prepare for presentation of direct testimony with counsel

• Anticipate cross examination will test evidence

• Presence of judge or hearing officer

• Know your audience!

QUESTIONS?