Legal Report, February 2014

General Counsel, Trela J. White

1. Archstone Palmetto Park, LLC and City of Boca Raton v. Kathleen Kennedy, et al.
Case No. 2014 WL 305086 (Fla. 4th DCA 2014).  Referenda on Development Orders.
The Palm Beach County League of Cities, Inc. filed an amicus brief in support of the City of Boca Raton in this case.  The facts are as follows: the City of Boca Raton adopted an ordinance amending its regulations pertaining to its downtown development of regional impact.  The ordinance constituted a development order under Florida law.  A citizen’s group filed a petition seeking to repeal the ordinance by referendum.  The citizens’ petition was filed pursuant to the City’s general Charter provision relating to the repeal of ordinances by referendum.  The City’s Charter provision did not specifically mention that referenda could be used for development orders.  The City filed a complaint with the Trial Court asking for a declaration that it did not have to process the petition because such referenda were prohibited under Florida law.  The Trial Court disagreed with the City and entered a final judgment ordering the City to process the petition.  The Trial Court based its decision on a 2012 amendment to Section 163.3167(8), Florida Statutes.  The Fourth District Court of Appeal, however, held that the Trial Court was incorrect.  The 2012 amendment did not require the City of Boca Raton to submit a development order to public referendum.  The District Court held that the 2012 amendment served to reaffirm the longstanding prohibition on referenda for development orders and only grandfathered in a referendum process for those local governments with specific charter provisions allowing referenda on development orders in place as of June 1, 2011.  The District Court held that a charter provision outlining the referendum process generally, like the City of Boca Raton’s, was not sufficient to fall under the grandfathered status contemplated by the 2012 amendment.  Therefore, the City of Boca Raton was not required to process the citizen’s petition and place it before the voters in a referendum.

2. Town of Jupiter v. Byrd Family Trust.
Case No. 2014 WL 305124 (Fla. 4th DCA 2014).  Ability of Local Governments to Regulate Mangroves, and to Assess Attorney’s Fees Incurred During Code Enforcement Proceedings.
The facts are as follows: The Byrd Family Trust removed 109 mangroves and filled the area with sand.  The work was done without a permit.  The Town’s code enforcement special magistrate issued an order finding that the Trust had violated the Town’s Code of Ordinances and therefore, entered a fine in the amount of $15,000.00 for each mangrove removed for a total fine of $1,635,000.00.  The special magistrate also fined the Trust $15,000.00 for placement of sand on the property without a permit.  Finally, the special magistrate awarded the Town its attorney’s fees and costs in prosecuting the code enforcement action.  The Town’s award of attorney’s fees was based on a Town ordinance specifically allowing the Town to recover fees for Town Attorney and magistrate services incurred during code enforcement cases.
Regulation of Mangroves: The Fourth District Court of Appeal held that since the Town had not been delegated the authority by the State to regulate and enforce mangrove trimming and removal, the Town had no authority to fine the Trust for the removal of such mangroves.  Florida’s Mangrove Trimming and Preservation Act expressly preempts local regulation of mangroves and enforcement unless the local government receives a delegation of such authority from the State.
Code Enforcement Attorney’s Fees: The Palm Beach County League of Cities, Inc. filed an amicus brief in support of the Town with respect to the issue of code enforcement attorney’s fees.  The Circuit Court Appellate Division previously held that Chapter 162, Florida Statutes, did not preempt local governments from adopting ordinances that allowed them to recover attorney’s fees in code enforcement cases.  The Fourth District Court of Appeal upheld the special magistrate’s award of attorney’s fees to the Town. 

3. Detournay v. City of Coral Gables.
Case No. 127 So. 3d 869 (Fla. 3d DCA 2013).  Separation of Powers.
Homeowners and a homeowner’s association sued the City of Coral Gables for declaratory and injunctive relief seeking to compel the City to enforce its building and zoning codes against a property owner that rented private yacht slips and moorings within the City.  The homeowners and homeowner’s association alleged that the private yacht basin was being run in a manner that violated the City’s building and zoning codes.  The Third District Court of Appeal held that the lawsuit should be dismissed.  The City had sovereign immunity based on the doctrine of separation of powers.  This means that the judicial branch must not interfere with the discretionary functions of the legislative and executive branches of government absent a violation of constitutional or statutory rights.  To hold otherwise would require the judicial branch to second guess the political and police power decisions of the other branches of government and would violation the separation of powers doctrine.  The District Court concluded that the City’s discretion to file, prosecute, abate, settle or voluntarily dismiss a building and zoning enforcement action was a purely executive function that will not be supervised by the courts.  Therefore, the City cannot be compelled by one private party to enforce its building and zoning laws against another private party.  The enforcement of building and zoning laws is for the purpose of protecting the health and safety of the public, not the personal or property interests of individual citizens.

4. Town of Gulf Stream et al vs. Palm Beach County, and Sharon R. Bock, as Clerk and Comptroller of Palm Beach County, Intervenor
Case No. 502011CA017953XXXXMB.  Inspector General Funding Lawsuit.
Fourteen municipalities sued Palm Beach County challenging the method of funding for the Inspector General Program (the “OIG Program”).  The current funding method authorizes the Board of County Commissioners to set an amount the municipalities must pay for the OIG Program, and to bill municipalities for that amount.  The municipalities contend that the current funding method is an unlawful tax and invades municipal home rule budgetary authority.  The trial in this case was tentatively set to begin on January 27, 2014.  However, a jury trial set in front of this case did not settle.  Therefore, the funding lawsuit did not go to trial in January.  The parties are going to calendar call on February 21, 2014, in order to get another tentative trial date.  The trial will be tentatively re-set sometime during the time period of March 3, 2014, through March 28, 2014.

5. City of Orlando and Lasercraft, Inc. vs. Michael Udowychenko, etc. 
Case Number SC12-1471.  Red Light Cameras.
This case was reported on at the July 2012 League meeting and the details are contained in the July Legal Update, which is located on the League’s website.  The Florida Supreme Court heard oral argument on November 7, 2013.  No further action has been taken by the Court at this time.


6. South Florida Water Management District v. RLI Live Oak LLC
Case Number SC12-2336.  New Heightened Evidentiary Burden To Enforce Regulatory Programs Through Monetary Penalties.
This case was reported on at the January 2013 League meeting and the details are contained in the January 2013 Legal Update, which is located on the League’s website.  On March 7, 2013, the Florida Supreme Court accepted jurisdiction of the case.  All briefs have been filed.  The Florida Department of Environmental Protection and Office of the Attorney General were permitted to file amicus curiae briefs in support of the South Florida Water Management District.  On October 24, 2013, the Court denied RLI Live Oak LLC’s motion to file responses to the amicus briefs.  The South Florida Water Management District’s request for oral argument has been denied.  No further action has been taken by the Court at this time.  This case is important to municipalities because it involves what standard must be used in imposing regulatory penalties on code violators.  The South Florida Water Management District argues they should only have to prove a regulatory violation by the traditional “preponderance of the evidence” standard.  The landowners involved in the case argue that a regulatory violation must be proven by the higher “clear and convincing evidence” standard before monetary penalties may be imposed.